18:0583(73)CA - 162nd Tactical Fighter Group, Arizona NG, Tucson, AZ and AFGE Local 2924 -- 1985 FLRAdec CA



[ v18 p583 ]
18:0583(73)CA
The decision of the Authority follows:


 18 FLRA No. 73
 
 162nd TACTICAL FIGHTER GROUP 
 ARIZONA AIR NATIONAL GUARD 
 TUCSON, ARIZONA 
 Respondent 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2924, AFL-CIO 
 Charging Party/Petitioner
 
                                            Case Nos. 8-CA-30098
                                                      8-CA-30099
                                                      8-RO-30002
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled consolidated proceeding finding that, in Case No.
 8-CA-30098, the Respondent had engaged in certain unfair labor practices
 as alleged in the complaint and recommending that it be ordered to cease
 and desist therefrom and take certain affirmative action, and also
 finding that the Respondent had not engaged in certain other alleged
 unfair labor practices and recommending dismissal of the complaint with
 respect to them.  The Judge further found that, in Case No. 8-CA-30099,
 the Respondent had not engaged in the unfair labor practices alleged,
 and recommended dismissal of that complaint.  The Judge also recommended
 that one objection to the election in Case No. 8-RO-30002 be sustained
 and that all others be dismissed but, in accordance with section
 2422.21(g)(1) of the Authority's Rules and Regulations, made no
 recommendation with regard to any remedial action to be taken concerning
 the sustained objection.
 
    All parties filed exceptions to the Judge's Decision;  the Charging
 Party/Petitioner (AFGE/the Union) filed an opposition to the
 Respondent's exceptions, and the Respondent filed an opposition to the
 General Counsel's exceptions.  /1/
 
    Pursuant to sections 2422.21 and 2423.29 of the Authority's Rules and
 Regulations and sections 7111 and 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.  Upon consideration of the entire
 record in this case, the Authority adopts the Judge's findings, /2/
 conclusions and recommendations, as modified below.
 
           THE OBJECTIONS TO THE ELECTION (Case No. 8-RO-30002)
 
    Objection No. 6
 
    This objection is based upon an allegation that the Activity, prior
 to the election herein, improperly disallowed the distribution of
 campaign literature in a non-work area.  The Authority adopts the
 Judge's recommendation that the objection with regard to the
 Respondent's removal of a few 2" x 3" cards announcing a Union meeting
 from an employees' break room be dismissed, noting the Judge's finding
 that the Union had waived its right to distribute literature during the
 campaign.
 
    Objection No. 10
 
    This objection alleges that the Activity distributed a series of
 pre-election memoranda which, by inference, suggested negative aspects
 of unionism and interfered with the employees' freedom of choice in the
 December 15 election.  The Judge found that the Activity distributed
 several memoranda to its employees prior to the election, and that the
 memoranda dated November 12, December 7 and December 9, which are
 described in the Judge's Decision, contained statements which exceeded
 the scope of permissible management expression under section 7116(e) of
 the Statute and thus interfered with the free choice of the voters in
 the election.  He therefore recommended that this objection be
 sustained.  The Authority disagrees, noting particularly that the
 statements contained in the memoranda in question were, as found by the
 Judge, correct as to law and/or government policy, and did not promise
 benefits to or threaten employees in regard to their voting in the
 election.  Therefore the Authority finds that, in the circumstances of
 this case, such memoranda did not interfere with the employees' freedom
 of choice in the election.  Accordingly, this objection shall be
 dismissed.
 
    Objection No. 13
 
    Objection No. 13 alleges that the Respondent's Commanding Officer, at
 a meeting of its employees five days before the election, stated that
 the Guard was "one big happy family" and that no "outside influences"
 were needed.  The Judge found that no such statements were made at the
 meeting and therefore recommended dismissal of this objection.  The
 Authority agrees.  Accordingly, this objection shall be dismissed.
 
    Accordingly, as all objections to the election have been found to be
 without merit, the Regional Director is directed to take further
 appropriate action consistent with this decision.
 
                   THE UNFAIR LABOR PRACTICE COMPLAINTS
 
    Case No. 8-CA-30099
 
    The complaint in Case No. 8-CA-30099 alleges that the Respondent's
 Commanding Officer made certain statements at the meeting of its
 employees five days before the election which violated section
 7116(a)(1) of the Statute.  The Judge found that the Commanding Officer
 did not make two of the statements attributed to him, i.e., (1) that the
 employees did not need outside influences because the Guard was one big
 happy family, or (2) that the Union officials acted in poor taste or in
 an underhanded manner in distributing union election material, and the
 Authority adopts the Judge's finding in this regard.
 
    The Judge additionally found that the Commanding Officer did state
 that he was disappointed about the distribution of literature by the
 Union in that it demonstrated a lack of good faith, since an agreement
 had been made between the parties not to campaign on the premises.  The
 Judge concluded that the statement did not violate section 7116(a)(1) of
 the Statute.
 
    The Authority agrees, but for the following reasons.  Section 7116(e)
 of the Statute provides:
 
          (e) The expression of any personal view, argument, opinion or
       the making of any statement which--
 
          (1) publicizes the fact of a representational election and
       encourages employees to exercise their right to vote in such
       election,
 
          (2) corrects the record with respect to any false or misleading
       statement made by any person, or
 
          (3) informs employees of the Government's policy relating to
       labor-management relations and representation,
 
          shall not, if the expression contains no threat of reprisal or
       force or promise of benefit or was not made under coercive
       conditions, (A) constitute an unfair labor practice under any
       provision of this chapter, or (B) constitute grounds for the
       setting aside of any election conducted under any provisions of
       this chapter.
 
 Noting our adoption of the Judge's finding (supra under Objection No. 6)
 that the Union waived its right to distribute literature during the
 campaign, and noting that the statements which the Judge finds were made
 by Union supporters to supervisor Carpenter denying the Union's role in
 the posting of that literature, the Authority finds that the Commanding
 Officer's comments with regard to the distribution of such literature
 served to "correct the record with respect to (a) false or misleading
 statement made by any person." Accordingly, since the Commanding
 Officer's comments were within the ambit of the above cited language of
 section 7116(e) of the Statute, the Authority agrees with the Judge's
 finding that the comments did not violate section 7116(a)(1) of the
 Statute.  /3/
 
    Case No. 8-CA-30098
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 of the Statute on December 19, 1982 (four days after the election), when
 management official Major Smith made statements to employees Jon Webb
 and George Leflohic at meetings (a) that they would be closely watched
 with regard to their civilian and military objectives because they were
 visible supporters of the union, (b) that unions have no place in the
 National Guard, and (c) that unions are a waste of taxpayers' money.
 
    With respect to (a), the Judge concluded that the remarks made by
 Smith to Webb and Leflohic interfered with, restrained, and coerced the
 employees in violation of section 7116(a)(1) of the Statute. We agree.
 
    The Judge found that Smith also made the statements to employees
 Leflohic and Webb as alleged in (b) and (c) above;  however, he
 concluded that these statements were not made under coercive conditions,
 were not accompanied by any threat of penalty or reprisal, and could not
 be construed as interfering with the rights of employees to freely join
 or assist a labor organization.  We agree that the statements were not
 accompanied by any threat of penalty or reprisal, and that the
 statements did not reasonably tend to interfere with, restrain, or
 coerce employees in the exercise of rights protected under the Statute.
 Accordingly, the Authority finds that these statements are not violative
 of section 7116(a)(1).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the 162nd Tactical Fighter Group, Arizona Air National Guard,
 Tucson, Arizona, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with, restraining, or coercing its employees by
 impliedly threatening them with reprisal because of their activities on
 behalf of the American Federation of Government Employees, Local 2924,
 AFL-CIO, or any other labor organization.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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 the 162nd Tactical Fighter Group,
 Arizona Air National Guard, Tucson, Arizona, copies of the attached
 Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Commander, or a 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 VIII, 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 allegations of the complaint in Case
 No. 8-CA-30098, to the extent that they have been found not violative of
 the Statute, be, and they hereby are, dismissed.
 
    IT IS FURTHER ORDERED that the allegations of the complaint in Case
 No. 8-CA-30099 be, and they hereby are, dismissed in their entirety.
 
    IT IS FURTHER ORDERED that the objections to the election in Case No.
 8-RO-30002 be, and they hereby are, dismissed in their entirety.
 
 Issued, Washington, D.C., June 21, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 our employees by
 impliedly threatening them with reprisal because of their activities on
 behalf of the American Federation of Government Employees, Local 2924,
 AFL-CIO, or any other labor organization.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce our 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 VIII, Federal Labor Relations Authority, Whose address
 is:  350 S. Figueroa Street, Los Angeles, California 90071, and whose
 telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Don Breneman
    Victor Schwanbeck, Esq.
    For the Respondent/Activity
 
    Deborah S. Wagner, Esq.
    E. A. Jones, Esq.
    For the General Counsel
 
    Kevin M. Grile, Esq.
    For the Charging Party/Petitioner
 
    Before:  WILLIAM NAIMARK, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to an Order Consolidating Cases, Consolidated Complaint, and
 Notice of Hearing With Outstanding Representation Hearing issued on
 March 31, 1983 by the Acting Regional Director, Federal Labor Relations
 Authority, Los Angeles, California, a hearing was held before the
 undersigned in the above-captioned cases in Tucson, Arizona, on June 24,
 1983.
 
    This proceeding arose under 5 U.S.C. 7101 et seq. of the Federal
 Service Labor-Management Relations Statute (herein called the Statute).
 Cases 8-CA-30098 and 8-CA-30099 are based on charges filed on December
 23, 1982 by American Federation of Government Employees, Local 2924,
 AFL-CIO (herein called the Union or Petitioner) against 162nd Tactical
 Fighter Group, Arizona Air National Guard, Tucson, Arizona (herein
 called Respondent or Activity).
 
    The Consolidated Complaint alleged, in substance, that (a) on or
 about December 10, 1982 Respondent's Commander, Colonel John M.
 Hartnett, made statements to employees at a meeting that they did not
 need outside influences and that union representation was unnecessary or
 undesirable;  that officers of the Union acted in poor taste or in an
 underhanded manner in distributing union election material;  (b) on or
 about December 17, 1982 Respondent's official, Major Michael R. Smith,
 made statements to employees at a meeting that they would be closely
 watched re their civilian and military objectives since they were
 visible supporters of the Union;  that unions have no place in the
 National Guard;  that unions are a waste of taxpayers' money-- all in
 violation of Section 7116(a)(1) of the Statute.
 
    Pursuant to a representation petition duly filed by the Petitioner
 under Section 7111 of the Statute, both the Petitioner and the Activity
 on November 30, 1981 signed an Agreement for Consent or Directed
 Election among all classifications Act (GS) and Wage Grade employees
 assigned to the 162nd Tactical Fighter Group, Arizona Air National
 Guard.  An election was conducted on December 15, 1982 under the
 supervision of the Regional Director, Los Angeles, California Region of
 the Activity's employees in the aforesaid unit.
 
    The results of the election, as set forth in the Tally of Ballots,
 were as follows:
 
          Approximate number of eligible voters 323
 
          Void ballots 0
 
          Votes cast for American Federation of Government Employees,
       Local 2924 91
 
          Votes cast against exclusive recognition 219
 
          Valid voters counted 310
 
          Challenged ballots 1
 
          Valid votes plus challenged ballots 311
 
    Timely objections to conduct affecting the election were filed by the
 American Federation of Government Employees, Local 2924, the Petitioner
 herein.  By letter received on March 2, 1983 Petitioner withdrew all
 objections except for those designated as Objections 6, 10 and 13 which
 were as follows:
 
          Objection No. 6
 
          AFGE alleges that the Activity disallowed the distribution of
       union campaign literature in employee rest areas and recreational
       room.
 
          Objection No. 10
 
          AFGE alleges that activity-management distributed a series of
       pre-election bulletins through its internal mail system which
       emphasized certain negative aspects of unions.
 
          Objection No. 13
 
          AFGE alleges that during a December 10, 1982 "How Goes It"
       meeting, attended by the bulk of the unit's eligible voters, the
       Activity's Commander addressed the subject of the Union's on-base
       campaigning and stated in part that the Guard was "one big happy
       family" and that employees did not need "any outside influences"
       to deal with their problems.  /4/
 
    Upon investigation the Regional Director, Eighth Region, determined
 that Objections 6, 10 and 13 raise relevant issues of fact and that
 substantial questions of interpretation on policy exist which may have
 affected the results of the election herein.  Accordingly, a Notice of
 Hearing on Objections was issued on March 24, 1983 by the aforesaid
 Regional Director in 8-RO-30002.
 
    Respondent/Activity filed an answer to the Consolidated Complaint and
 Notice of Hearing With Outstanding Representation Hearing on April 22,
 1983.  In respect to 8-CA-30098 and 8-CA-30099, it denied the commission
 of any unfair labor practices.  In respect to 8-RO-30002, it denied any
 interference with the election results or employees' freedom of choice
 when voting for or against labor organization representation.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein approximately 450 employees were
 employed as technicians at the 162nd Tactical Fighter Group of the
 Arizona Air National Guard at Tucson, Arizona.  The air technicians are
 attached to the Consolidated Aircraft Maintenance Squadron which is
 responsible for maintaining the aircraft of the 162nd Tactical Fighter
 Group.  The Avionics Branch is part of the Maintenance Squadron.
 
    2.  No labor organization has been recognized as the bargaining
 representative of the technicians, nor has any labor organization been
 certified as their collective bargaining representative.
 
    3.  On November 22, 1982 a meeting was held to discuss a consent
 election among the eligible employees (Classification Act (GS) and Wage
 Grade employees) assigned to the 162nd Tactical Fighter Group, Arizona
 Air National Guard-- the Respondent herein.  Management was represented
 by Reuben De La Vara, Labor-Management Relations Specialist, William
 Kyzer, Administrative Officer, and Major Smith.  The Union and
 Petitioner herein was represented by its president, Michael Coiro.  At
 this meeting Coiro, on behalf of the Union, stated that there would be
 no campaigning on the Base;  that he preferred a low-key campaign so as
 to keep things as normal as possible.  /5/
 
    4.  Subsequent to the November 22, 1982 meeting Kyzer advised Colonel
 Hartnett, Commander at the 162nd Tactical Fighter Group, Tucson Air
 National Guard, that the Union had agreed not to campaign on the Base.
 He later informed the unit manager of said commitment at a supervisors
 meeting.
 
    5.  Prior to the election held on December 15, 1982, /6/ and after
 the consent election meeting herein referred to, management discovered
 that campaign literature, on behalf of the Union, had been posted on
 bulletin boards /7/ and walls throughout the Base.  Whereupon Kyzer
 notified Coiro on December 10 that the material had been so posted.  The
 Union official advised Kyzer that the posting was unauthorized and would
 be removed.  The literature was removed by both Union members and
 management representatives.
 
    6.  Colonel Hartnett has made a practice of holding "How Goes It"
 meetings on the Base regularly when he has significant information to
 pass on to the employees.  He started this procedure about 10 years ago
 when occupying the position of Deputy Commander for Maintenance.  These
 meetings include all Base personnel and occasionally visitors are
 present.  No attendance record is taken thereat.
 
    7.  On December 10, Colonel Hartnett convened another "How Goes It"
 meeting at the hangar which was attended by about 300 employees.  At the
 outset Hartnett discussed the Beautification Program which was in
 progress.  He commented on its good results and asked the employees not
 to walk on the grounds or rocks.  Mention was made by him re the
 operation 'Santa Claus' whereby attempts were made to get toys and
 donations for Indian children.  He also congratulated those who received
 awards.
 
    Hartnett made statements concerning the Union and the forthcoming
 election.  He referred to the Union meeting scheduled that evening at
 the Holidome (Holiday Inn), stating that those who wanted to should
 attend and obtain information regarding the issues.  The Commander
 reminded the employees of the forthcoming election.  He suggested they
 should vote and make up their own minds whether they wanted a union.
 Reference was made by Hartnett to the distribution of literature by the
 Union throughout the Base.  He stated that he was disappointed since
 there had been an agreement between the parties that there would be no
 campaigning on the Base prior to the election;  that such distribution
 of Union literature demonstrated a lack of good faith on its part.  /8/
 
    8.  Respondent maintains a multi-purpose room located amid the
 various Avionics electronic shops.  It is roughly 10' x 12' in size with
 an open entranceway to two other shops.  Supervisors may conduct
 business at times thereat, and occasionally employees eat lunch in the
 room or take a break there.  Placed in this room are a refrigerator for
 storing lunch, soda pop and candy machines, as well as a coffee pot.  A
 table (3' x 5') is located therein together with four chairs. There is
 also a bulletin board (4' x 4') used for notices of sale, posting of
 jokes, and news items.  This 'break' room is open from 6:15 a.m. to
 11:15 p.m.
 
    9.  On December 9, while making his rounds, George Carpenter,
 Avionics first-line supervisor, discovered small cards (approximately 2"
 x 3") on the table in this break room.  Imprinted on these cards was the
 following language:
 
          "Don't You Want To Know?
 
          More about what is going to affect you and your family's
       future, after next Wednesday.
 
          COME TO THE HOLIDOME FRIDAY."
 
 Carpenter removed about six of these cards during the day on December 9.
 
    10.  The following day, December 10, Carpenter discovered and removed
 six more cards which were on the table in the break room.  He approached
 employee George Leflohic whom he knew to be one of the leading Union
 adherents.  Carpenter showed the employee the card and asked if he ever
 saw it before or knew anything about the leaflet.  Leflohic testified he
 was afraid to admit any knowledge thereof and therefore he denied any
 familiarity with the matter.
 
    While Carpenter and Leflohic were together employee Job Webb joined
 them, and Carpenter asked Webb if he knew anything about the aforesaid
 card or leaflet.  When this employee also denied knowledge thereof, the
 supervisor inquired whether it was Union material.  Webb replied it had
 no Union identification.  Carpenter stated that as far as he's concerned
 it was a Union item.  The employee retorted that it was just an
 invitation to go to the Holiday Inn to find out what would affect the
 workers and their family;  that it was "no big deal".  Carpenter replied
 that he didn't care what it said, it was the Union, and he did not want
 it posted;  that if it continued to be found, action would be taken by
 him.  /9/
 
    11.  Record testimony shows that on occasion written material is
 placed on the table in the break room with the sanction of management.
 Thus, each Friday copies of the "Dandy Dimes"-- a leaflet advertising
 various items-- are put in the room either on the table or on top of a
 filing cabinet.  They are taken by employees quickly and do not remain
 for any length of time.  Also, the room contains a map of all units
 represented by the Union in the National Guard, and a "stack" of other
 Union literature (with AFGE letterhead) was placed on the table.  The
 foregoing items were not removed by management, and Carpenter testified
 he allowed the Union literature to remain because he was charged with
 neutrality during the campaign.
 
    12.  Prior to the election herein several memoranda were distributed
 by management to its employees.  Each one was signed by Colonel
 Hartnett.  Four of them were in question-answer form and all of these
 notices, except one, referred specifically to the Union election.  The
 excepted memorandum dealt with the entitlement by employees to Overtime
 and Environmental Differential Pay.  The remaining notice set forth
 details re the forthcoming election, and a few comments were added
 concerning the right of employees to vote for or against union
 representatives and an encouragement to exercise it on December 15.
 
    13(a).  The first memo /10/ issued by the Activity was dated November
 12.  It contained nine questions, apparently received from employees by
 management, together with Hartnett's answers in reply thereto.  The
 initial questions dealt with inquiries as follows:  "What is a 'Petition
 of Recognition'?" "What happens next?" "Who is eligible to vote?" and
 "What determines if an election is won or lost?" The remaining questions
 and answers set forth by Hartnett in this document were as follows:
 
          QUESTION:  If a union wins exclusive recognition, do I have to
       join?
 
          ANSWER:  Federal employees 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 rights.
 
          QUESTION:  What can I do in support or in opposition to union
       organization?
 
          ANSWER:  If you are eligible to vote in the election you may:
 
          (1) Vote to insure your desires are expressed.
 
          (2) Solicit membership, support, or oppose a union in non-work
       areas (TAGRA or break areas).  Both the soliciting employee and
       the employee being solicited must be on non-work time (off duty,
       break or lunch period).
 
          (3) Distribute union or anti-union literature during non-work
       time, but only in non-work areas.  Base distribution systems
       cannot be used.
 
          (4) Act as representatives or officers of a union.
 
          QUESTION:  Are union officials authorized on the base?
 
          ANSWER:  Representatives of the union who are not agency
       employees generally have no right of access to the premises of the
       162TFG.
 
          QUESTION:  I am a supervisor and employees ask, "What do you
       think about the union"?  Can I respond?
 
          ANSWER:  A supervisor may express their (sic) personal opinion;
        however, supervisors are charged with neutrality and must not
       attempt to influence employees decision to vote for or against a
       union.  An employee cannot be subjected to the threat of reprisal
       or coercion from a supervisor.
 
          QUESTION:  Is a union good or bad for the 162TFG?
 
          ANSWER:  This is for you and only you to decide.  I urge you to
       weigh all factors, discuss the issues with people you respect,
       make up your own mind and vote.
 
 This memorandum ended with Hartnett's statement that the employee should
 notify Hartnett of any activity, by supervisor or union agent, which the
 employee believed to be an inappropriate act designed to influence his
 vote.  Further, that the employee's right to express his views, free
 from threat or reprisal, is guaranteed by federal law.
 
    (b) The second memorandum /11/ issued by Hartnett was dated December
 1.  It contained three questions as follows:
 
          QUESTION:  Am I entitled to Overtime Pay?
 
          QUESTION:  Am I entitled to Environmental Differential Pay if I
       work in heat in excess of 103 degrees?
 
          QUESTION:  If I am required to work on a holiday, am I entitled
       to Holiday Pay?
 
 This document was prefaced by a comment that several interesting
 questions re technician entitlements were brought to Hartnett's
 attention;  that the Commander thought it would be of great interest to
 set forth correct answers /12/ to such queries.  The memo concluded by
 advising the employee that information re these matters is always
 available at the Personnel Assistance office;  that the employee can
 contact the office re technician entitlements or other
 employment-related issues.
 
    (c) Another memorandum /13/ issued by management was dated December
 6. It set forth the date, place, and hours of the election, together
 with the unit of eligible voters as well as the date, time and place for
 the counting of the ballots.  Hartnett encouraged each employee to vote
 for or against union representation and to appear at the polls if there
 were any questions re his eligibility.
 
    (d) The fourth document /14/ was dated December 7 and addressed to
 all technicians.  Hartnett stated at the outset that questions and
 answers were included therein to set the record straight and answer
 concerns addressed by many technicians.  Nearly all the items dealt with
 eligibility of certain classes or types of employees to vote in the
 election, e.g. a temporary excepted and service employee, an employee
 not at work on December 15 but otherwise eligible, and an individual
 employed since November 24 but whose name did not appear on the
 eligibility list.  One question also concerned the failure to receive
 overtime pay since it was received at the 161st ARG in Phoenix.  The
 memo recited that the Guard in Phoenix did not receive such pay.  The
 remaining question and answer was as follows:
 
          QUESTION:  I prefer to not be involved with this union issue,
       do I have to vote?
 
          ANSWER:  By public law, you have the right to vote or not vote.
        However, I encourage you to vote your preference.  Voting is your
       individual opportunity to express your desires in this matter.
       Remember, a simple majority of the votes cast determines the
       election results.  Example:  If only 3 eligible members of the
       proposed Bargaining Unit vote-- 2 vote "YES" or "NO," that
       majority determines the election results for all members of this
       unit."
 
    (e) The final memo /15/ issued to technicians by Hartnett was dated
 December 9.  It provided the following questions /16/ and answers "to
 set the record straight and answer concerns" of the employees:
 
          QUESTION:  What will be the rules regarding grooming standards
       and wearing of the military uniform should AFGE be certified?
 
          ANSWER:  Wearing of the military uniform and grooming standard
       could be a subject for negotiation.  It should be noted that the
       appropriateness of negotiating military uniform versus standard
       work attire is currently being considered by the circuit courts.
       The union's right to continue to bargain this issue will be
       determined by the future rulings of the courts.
 
          QUESTION:  If a labor organization is certified to represent
       this unit and I choose not to join, will I be affected by the
       negotiated agreement?
 
          ANSWER:  If a labor organization is certified, the negotiated
       agreements apply to all members of the Bargaining Unit.
 
          QUESTION:  Can labor organizations negotiate over such things
       as military promotions, the Military Weight Control, or Special
       Promotion programs?
 
          ANSWER:  No.  Labor organizations are prohibited from
       negotiating over all military issues by Public Law (Title 10, U.S.
       Code).
 
          QUESTION:  I'm told that if a labor organization is certified,
       we will see an immediate change in TDY policies and entitlements.
       Is this correct?
 
          ANSWER:  Policies regarding TDY entitlements will not change,
       as TDY's are based on actual mission requirements.  Entitlements
       while in a TDY status are defined and disbursements made in
       accordance with provisions of the Department of Defense (DOD)
       Joint Travel Regulations (JTR).  Any changes of these entitlements
       will be through the Per Diem, Travel, Transportation and Allowance
       Committee, per Public Law 85-272.
 
    14.  George Leflohic was an active Union adherent who participated in
 its organizational campaign.  He solicited signatures of employees to
 join the Union, and he distributed cards in the break room of the
 Avionics branch announcing that a meeting would be held at the Holiday
 Inn before the election.
 
    On December 17, after the election, Leflohic was notified by his
 supervisor, Ernest Payne, that Major Michael Smith, Assistant Chief of
 Maintenance, wanted to talk with him.  The employee met with Smith at
 about 10:45 A.M. on that date in the conference room.  Record facts show
 the meeting was called because Smith knew that Leflohic and Jon Webb
 were the two persons who played a prominent role, and were the leaders,
 in the organizational activity of the Union and he wanted to repair the
 division within the bargaining unit.  Smith commenced the discussion by
 stating he wanted to clear the air and they needed to talk.  /17/
 Whereupon he stated to Leflohic that unions had no place in a military
 organization;  that Leflohic had "crossed the line" and was a highly
 visible person whose "name would always stick out".  The employee
 testified Smith said he would not be watching Leflohic but the latter
 had stepped out in front of 91 people and would have to do what is
 proper.  Leflohic replied he always had and always would do so.  Smith
 also stated he spent a lot of time in opposition to the Union, that he
 was not against unions but they don't work in a military environment.
 
    15.  Major Smith also called Jon Webb, an electronics mechanic, to
 the conference room on the morning of December 17.  He stated /18/ that
 they had been through long, arduous months of the Union organization and
 it was time to heal the wounds so they could get back to work.  Upon
 being asked where his loyalties lay, Webb replied they were with the
 United States, Arizona and the people with whom he worked.  Webb
 inquired why just he and Leflohic were being spoken to, and Smith said
 they had crossed the line and made themselves visible.  Further, the
 Major stated they should watch themselves closely in military
 obligations and civilian employment;  that whenever their names came up
 in conversations or correspondence, he couldn't help remember that they
 were involved in the Union drive.
 
    The said supervisor also told Webb that, as far as he was concerned,
 unions were a waste of taxpayers' money and had no place in the National
 Guard.  Smith further mentioned that he and Major Bill Berg, his
 counterpart at the Air Guard unit in Phoenix, spent three to four months
 wasting time fighting the union efforts each year.  Webb replied that he
 would always disagree with Smith on whether unions properly belong in
 the National Guard.
 
                                Conclusions
 
    I.  Alleged Unfair Labor Practice
 
                            Case No. 8-CA-30099
 
    It is asserted by General Counsel that the statements made by Colonel
 Hartnett on December 10, 1982 constituted interference, restraint, and
 coercion under Section 7116(a)(1) of the Statute.  In its brief the
 General Counsel maintains that the Commander's remarks at the meeting on
 that date was an infringement of employees' right to form, join, or
 assist a labor organization, or to refrain from such activity, as
 enunciated by Section 7102 of the Statute.  In this respect, and in
 support thereof, it cites Department of the Air Force, Air Force Plant
 Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA No. 62
 (1981).
 
    A review of the existent law relating to permissible statements made
 by an employer in the public sector reveals a "free speech" provision
 bounded by several limitations.  The applicable statutory provision in
 this respect, Section 7116(e), provides as follows:
 
          (e) The expression of any personal view, argument, opinion or
       the making of any statement, which--
 
          (1) publicizes the fact of a representational election and
       encourages employees to exercise their right to vote in such
       election,
 
          (2) corrects the records with respect to any false or
       misleading statement made by any person, or
 
          (3) informs employees of the Government's policy relating to
       labor-management relations and representation,
 
          shall not, if the expression contains no threat of reprisal or
       force or promise of benefit or was not made under coercive
       conditions, (A) constitute an unfair labor practice under any
       provision of this chapter, or (B) constitute grounds for the
       setting aside of any election conducted under any provisions of
       this chapter.
 
    In interpreting the purpose and intent of the foregoing language, the
 Authority concluded, in agreement with Judge Devaney, that the said
 intent is two-fold.  First, Section 7116(e) was designed to assure
 neutrality in representation elections.  Second, outside of such
 elections, it purported to protect the expression of personal views,
 arguments or opinions by management or other person provided the
 expression does not contain any threat of reprisal or force or promise
 of benefit or was not made under coercive conditions.  Oklahoma City Air
 Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA No. 32
 (1981).  Thus, the touchstone of finding such views to constitute
 interference under Section 7116(a)(1) of the Statute is that they be
 coercive in nature.  The Authority has adhered to this interpretation of
 the "free speech" provision, as set forth above, and refused to find a
 violation unless such expressions were made under coercive conditions.
 Moreover, any such statements must be construed as an expression of
 personal views rather than a statement of agency management.  See Army
 and Air Force Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA No.
 69 (1982);  Norfolk Naval Shipyard, Portsmouth, Virginia, 5 FLRA No. 105
 (1981).
 
    In the case at bar the Complaint alleges that, in his speech to
 employees, Colonel Hartnett suggested to employees that a union was
 unnecessary or undesirable since the Guard was one big happy family and
 did not need outside influences;  that the Union officials acted in poor
 taste or in an underhanded manner in distributing union election
 material.  As such, it is contended these statements constituted
 interference, restraint or coercion.
 
    The foregoing findings of fact, however, reflect that Hartnett,
 although he reminded the employees to vote in the forthcoming election,
 did not suggest that outside influences were not needed as they were one
 big happy family.  It is true that the Commander did state he was
 disappointed at the distribution of literature by the Union;  that it
 demonstrated a lack of good faith since an agreement had been made
 between the parties not to campaign on the premises.  Nevertheless, I do
 not construe these statements as containing any threat-- express or
 implied-- or being coercive in nature.  Hartnett's comments reflecting
 his disappointment and that he deemed the Union to have acted in bad
 faith, stemmed from his understanding that the labor organization had
 distributed literature after having agreed not to do so.  These
 statements were not calculated, in my opinion, to interfere with the
 free choice of the employees in selecting their representative as
 guaranteed under Section 7102 of the Statute.  Accordingly, I conclude
 they were not violative of Section 7116(a)(1) and recommend dismissal of
 paragraphs 4(a) and (b) of the Complaint herein.  /19/
 
                            Case No. 8-CA-30098
 
    An issue is presented as to whether the comments by Major Smith to
 George Leflohic and Jon Webb on December 17, after the election was
 held, can be deemed interference under the Statute.  Respondent takes
 the position they were innocuous statements as best, and represented an
 attempt by the supervisor to "clear the air" of tensions resulting from
 the campaign and election.  It characterizes the meetings with these two
 employees as non-intimidating, and Respondent insists the conversations
 were merely an exchange of views and personal opinions.
 
    Upon careful consideration I am persuaded that certain statements
 made to Leflohic and Webb by Smith, as alleged in paragraph 5(a) of the
 Complaint, were impliedly coercive in nature.  /20/ The remarks were
 made by a management official, who was opposed to union representation
 at the Guard, to two employees who were known by the official to be
 prominent in their advocacy of the Union.  His statement to these
 individuals that they had "crossed the line" and were "highly visible"
 can scarcely be viewed as perfunctory remarks.  This is self-evident
 where it is also noted that the Major told Leflohic's name would always
 "stick out", that the supervisor also told Webb that whenever the names
 of these employees came up in conversations or correspondence, Smith
 could not help but remember they were involved in the Union drive.
 
    While Respondent maintains that Smith's purpose in talking to the two
 individuals was merely to reestablish peaceful and harmonious relations,
 the Authority has held that, as in the private sector, the subjective
 intent of the speaker is not determinative as to whether interference
 occurred.  The standard is whether, under the circumstances, an
 employer's conduct may reasonable tend to coerce or intimidate an
 employee.  Federal Mediation and Conciliation Service, 9 FLRA No. 31
 (1982), citing Russell Stover Candies, Inc. v. N.L.R.B. 551 F.2d 204
 (8th Cir. 1977).
 
    In evaluating the comments made by Smith to employees Leflohic and
 Webb, it seems clear that the statements were perforce intimidatory.
 These employees were prominent union leaders and the supervisor was
 opposed to union representative at the agency.  Accordingly, statements
 which inform them that the supervisor will remember their Union activity
 when their names came up in conversations or correspondence are
 necessarily coercive in nature.  But Leflohic and Webb may reasonably
 feel threatened since the implication of Smith's remarks is that their
 unionism will bear upon future considerations of them by management.  It
 is a threat, however veiled, that the employer's treatment of these
 employees may well be influenced by their involvement in the Union
 drive.  As such, these statements suggest their union activity will be a
 negative factor in any evaluation of them.  Accordingly, they constitute
 interference, restraint or coercion in violation of Section 7116(a)(1)
 of the Statute.  See U.S. Customs Service, Region IV, Dept. of Treasury,
 Miami, Florida /21/ A/SLMR No. 764.
 
    It is also insisted by General Counsel that, as alleged in paragraphs
 5(b) and (c) of the Complaint, Smith stated to employees on December 17
 that (a) unions have no place in the National Guard, (b) unions are a
 waste of taxpayers' money.  While I have found that the supervisor made
 such statements, I conclude they were not made under coercive
 conditions.  Apart from the fact that they may well represent personal
 views or opinions in contradistinction to agency policy, they were not
 accompanied by any threat or penalty or reprisal.  Nothing in said
 comments may reasonably be construed as interfering with the rights of
 employees to freely join or assist a labor organization.  Section
 7116(e) of the Statute clearly protects statements as these, supra,
 which are not coercive or intimidating in effect.  Oklahoma City Air
 Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, supra,
 (involving similar statements made by a supervisor to employees).
 Accordingly, I conclude that the statements made by Smith to Leflohic
 and Webb, as set forth in 5(b) and (c) of the Complaint were not
 violative of the Statute.
 
    II.  Objections to the Election
 
    Objection No. 6
 
    The Union herein maintains that, prior to the election, the Activity
 disallowed the distribution of union literature in non-work areas.  By
 preventing the Union from distributing its literature on December 9 and
 10 the employer is charged with interfering with the gree choice of the
 voters, and it is urged that the objection thereto warrants setting
 aside the results of the election.
 
    In both the private and public sectors an employer may not ban union
 solicitation or distribution of campaign materials in non-work areas and
 at non-duty hours.  Such action by management, unless unusual
 circumstances exist, will be deemed an interference with the right of
 employees to form, join, or assist a labor organization.  /22/ Le
 Tourneau Co. of Georgia v. N.L.R.B., 124 U.S. 791 (1945);  Charleston
 Naval Shipyard, A/SLMR No. 1 (1970);  Internal Revenue Service, North
 Atlantic Service Center, 7 FLRA No. 92 (1982).  As such, this control of
 union distribution of campaign material would be sufficient, when an
 objection is interposed, to overturn the results of an election held
 thereafter.
 
    Record facts in the case at bar disclose that the 2" x 3" cards
 distributed on December 9 and 10 were Union material announcing the
 holding of a meeting prior to the election.  While the announcement made
 no reference to the Union herein nor was identified with the
 organization, Carpenter believed the material related to the Union and
 had been distributed on its behalf.  Moreover, he told the employees
 that, as Union literature, he did not want it posted at all.  Although
 management insists the 'break' room is a work area, and thus no election
 material should be distributed thereat, I am persuaded that, for the
 most part, that room is a non-duty area.  This conclusion seems
 warranted since there is found therein various items customarily placed
 in a non-work room:  a refrigerator, coffee pot, and machines for soda
 and candy.
 
    Under the usual circumstances which prevail prior to an election, the
 action of management in banning the Union material (2" x 3" cards)
 herein would, in my opinion, suffice to be labeled objectionable conduct
 which interfered with the voters' choice.  /23/ However, I am
 constrained to conclude that certain conduct on the part of the Union
 precludes a finding that the Activity's removal of the cards from the
 break room was objectionable conduct.  Such constraint is based on the
 Union's pre-election agreement not to campaign on the Base in advance of
 the election itself.  Having waived its right to carry on such a
 campaign-- and I construe the distribution of literature as part of any
 union campaign-- the Activity would be within its rights to remove any
 material placed on the premises.  Accordingly, I am satisfied that,
 having agreed not to campaign on the Base, the Union may not validly
 object to the Activity's removal of literature before the election.
 Therefore, I recommend that this objection be overruled and dismissed.
 
    Objection No. 10
 
    This particular objection is addressed to the release by management
 of pre-election bulletins which, by inference, suggested negative
 aspects of unionism.  The Activity contends that the bulletin did not
 constitute a no-union campaign;  that the material contained true
 representations of fact or law;  and no evidence was adduced which
 indicated that the results of the election were affected thereby.
 
    The guidelines in regard to pre-election conduct which is either
 permissible, or sufficiently objectionable to set aside an election, are
 found in Section 7116(e) of the Statute.  As heretofore indicated, that
 statutory provision permits the expression of any personal view,
 argument, or opinion if it (a) publicizes the election and encourages
 employees to vote, (b) corrects any false or misleading statement made
 by anyone, (c) informs employees of the Government's policy re
 labor-management relation and representation.
 
    In tracing the origin of 7116(e) based on its legislative history
 Judge Devaney set forth in Oklahoma City Air Logistics Center (AFLC),
 Tinker Air Force Base, Oklahoma, supra, the Conference Report (No.
 95-1717, 95th Cong., 2nd Sess.).  It is stated therein that, after a
 compromise between the Senate and House bills, it was intended that the
 wording of the applicable provision would reflect the policy of the
 Civil Service Commission on what statements agencies may make during an
 election and the codification of case law under Executive Order 11491,
 as amended, on the use of statements in any unfair labor practice
 proceedings (Leg. History, p. 824).  Whereupon Judge Devaney concluded,
 in the cited case, that statements by agency management in relation to
 representational elections are protected only if such statements (1)
 publicizes the fact of an election and encourages employees to vote, (2)
 corrects the record re false or misleading statements, (3) informs
 employees of Government's policy re labor-management relations and
 representation.  Although the aforesaid case did not involve objection
 to an election but concerned, inter alia, a sueprvisor's statements
 alleged as being coercive, the Authority adopted Judge Devaney's
 reasoning and analysis of 7116(e).
 
    Subsequently the Authority had occasion to rule on the applicability
 of the aforesaid Section of the Statute where objections were filed to
 the results of a representation election based on prior statements of a
 supervisor.  See United States Department of Justice, United States
 Immigration and Naturalization Service, et al., 9 FLRA No. 36 (1982).
 The Authority expressly stated therein that an agency is restricted in
 its expressions to employees prior to elections.  /24/ More
 specifically, it declared as follows:
 
          "As it pertains to representation elections, section 7116(e) of
       the Statute limits the type of statements that may be made by an
       agency management during an election campaign.  Thus, management
       may make statements encouraging employees to vote in elections,
       correcting the record where false or misleading statements are
       made, or conveying the Government's views on labor-management
       relations."
 
    It thus becomes clear that, as interpreted by the Authority,
 pre-election statements by management must fall within the confines of
 7116(e) of the Statute to be labeled permissible.  Moreover, those
 statements embraced under the three allowable categories therein must
 contain no threat, promise of benefit, or be coercive in nature.
 Statements by the agency which do not publicize the election and
 encourage voting, correct false or misleading statements, or set forth
 Government policy re labor-management relations, are impermissible and
 violate the sticture of neutrality.
 
    Turning to the material distributed by the Activity herein prior to
 the election, it seems apparent that the memos of November 12, December
 1, and December 9, contain material not sanctioned by the Statute.  /25/
 It is true that the statements made therein, which are in the form of
 answers to questions, are correct as to law or policy, and they neither
 promise benefits not threaten employees in regard to their voting in the
 election.  Nevertheless, they do concern themselves with the Union
 herein and the election thereafter scheduled.  Thus, the November 12
 memo refers to such items as whether (a) employees have to join the
 Union if the latter wins the election, (b) Union officials may come on
 the Base, (c) a Union is good or bad for the Guard.  The December 7 memo
 contains a question as to whether an employee, who prefers not to be
 involved in the Union, is required to vote.  Management replies that he
 may vote or not, but it urges him to vote his preference since a
 majority vote determines the result of the election.  Finally, the
 December 9 memo sets forth certain effects upon employees if the Union
 is certified or an agreement negotiated, subjects permitted for
 negotiation by the Union, and TDY entitlements if the Union is
 certified.
 
    Although the Activity herein may not have intended to interfere with
 the freedom of choice of the voters, they have overstepped the
 boundaries of permissible conduct under the Statute.  It is apparent
 that, in seeking to impose strict neutrality upon an agency in a
 representation election, Congress confined management's pre-election
 statements as aforesaid.  Upon making statements concerning employees'
 rights both before the election, and thereafter if the Union is
 certified, the Activity has neither publicized details re the election,
 nor corrected mistakes of records, nor set forth Government policies re
 labor-management relations.  The same is true with respect to statements
 by the agency re the subject matters which the Union may negotiate with
 management upon certification.  Moreover, urging an employee to vote his
 preference after the latter has allegedly declared he did not want to
 get involved with the Union, must necessarily be viewed as a subtle
 attempt to solicit a vote against the Union.
 
    Apart from management's intentions re influencing the voters, and the
 absence of any express threat or coercion, I am constrained to conclude
 that the Activity has not observed the bounds of neutrality;  that the
 various pre-election memos-- as referred to supra-- contain statements
 exceeding the scope of 7116(e) of the Statute;  and that, as a result,
 they interfered with the free choice of the voters in the December 15
 election.  Accordingly, I recommend that Objection No. 10 herein be
 sustained.
 
    Objection No. 13
 
    This objection is based on Colonel Hartnett's allegedly stating, at
 the December 10 meeting, that they were all one big happy family and no
 outside influences were needed.  As I have found that no such statements
 were made at that meeting, no support exists for this particular
 objection.  Accordingly, I recommend that Objection No. 13 be dismissed.
 
    Having found in Case No. 8-CA-30098 that Respondent violated Section
 7116(a)(1) of the Statute, I recommend the Authority adopt the following
 order:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute and Section 2423.29 of the Rules and
 Regulations, it is hereby ordered that the 162nd Tactical Fighter Group,
 Arizona Air National Guard, Tucson, Arizona, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining or coercing its employees by
       impliedly threatening them with reprisal because of their
       activities on behalf of American Federation of Government
       Employees, Local 2924, AFL-CIO, or any other labor organization.
 
          (b) In any like or related manner interfering with, restraining
       or coercing its employees in the exercise of their rights assured
       by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 policies of the Statute:
 
          (a) Post at its facilities at the 162nd Tactical Fighter Group,
       Arizona Air National Guard, Tucson, Arizona, 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 the Commander, and shall be posted and
       maintained by him for 60 consecutive days thereafter in
       conspicuous places, including all bulletin boards where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       by the Commander to ensure that such notices are not altered,
       defaced or covered by any other material.
 
          (b) Pursuant to Section 2423.29 of the Rules and Regulations
       notify the Regional Director, Region 8, of the Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       the Order, as to what steps have been taken to comply herewith.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
    Dated:  August 31, 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 our employees by
 impliedly threatening them with reprisal because of their activities on
 behalf of American Federation of Government Employees, Local 2924,
 AFL-CIO, or any other labor organization.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce our 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 or
 compliance with any of its provisions, they may communicate directly
 with the Regional Director of the Federal Labor Relations Authority,
 Region 8, whose address is:  350 S. Figueroa Street, Los Angeles,
 California, 90071, and whose telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent contends that the General Counsel's brief in
 support of its exceptions does not comply with section 2423.28(a)(3) of
 the Authority's Rules and Regulations, and requests that it be given
 "minimal consideration." We find that the General Counsel's brief is in
 substantial compliance with our Rules and Regulations and the request is
 therefore denied.
 
 
    /2/ The Charging Party excepted to certain credibility findings made
 by the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /3/ These comments were not the subject of objections to the
 election.
 
 
    /4/ The alleged statements made by the Commander in this particular
 objection are also alleged in the Consolidated Complaint to constitute
 an unfair labor practice in violation of Section 7116(a)(1) of the
 Statute.
 
 
    /5/ Union agent Coiro testified that, at this meeting to establish
 the ground rules for the election, he stated that no Executive Board
 official of the Union (who are employed at Davis-Monthan Air Force Base)
 would campaign on the installation;  that the Union would not post
 literature on official bulletin boards during the campaign.  Both Kyzer
 and De La Vara deny this version and that any reference was made to
 bulletin boards.  Based on the record as a whole, and the plausibility
 of the testimonies, I accept and credit the versions given by Kyzer and
 De La Vara as set forth hereinabove.
 
 
    /6/ Unless otherwise indicated, all dates hereinafter occurred in
 1982.
 
 
    /7/ There are about 50 bulletin boards throughout the Base.  Record
 testimony reflects that none are designated as "unofficial" bulletin
 boards, and no differentiation is made between "official" and
 "unofficial" ones.
 
 
    /8/ Several witnesses testified to the statements made by Commander
 Hartnett at this "How Goes It" meeting.  Each presented different
 versions of what was said by him in regard to the Union.  Moreover,
 inconsistencies exist among testimonies of witnesses adduced by both
 parties.  While some evidence was adduced by the Union that Hartnett
 stated they were "one big happy family" and did not need outside
 influences, the witnesses who testified thusly did not recall the
 meeting and the discussion with clarity.  The same witnesses also
 testified the Commander remarked that the Union acted in an underhanded
 manner;  that no union was needed and has no place in the National
 Guard.  I find and conclude no such comments were made by Hartnett at
 the December 10 meeting.  The undersigned credits the version of
 Hartnett set forth above, supported for the most part by Antonio
 Perolta, Bill Sugin, Rita Frey, Brian Gallagher and Karen Lamb, as more
 reliable.
 
 
    /9/ Carpenter testified that he assumed that the card was Union
 related despite the absence of any identification and the denials of
 Leflohic and Webb.  His testimony also reflects that if the cards had
 contained a Union letterhead he would have allowed them to remain.
 Based on his 'assumption' and his remarks to the two employees, I cannot
 draw the conclusion that Carpenter would have let Union cards be
 distributed.
 
 
    /10/ U Exhibit 2.
 
 
    /11/ U Exhibit 3.
 
 
    /12/ Each question was answered with reference to the existing law or
 regulation governing the subject matter.
 
 
    /13/ U Exhibit 4.
 
 
    /14/ U Exhibit 5.
 
 
    /15/ U Exhibit 6.
 
 
    /16/ Excepted from said list of questions-answers set forth by the
 undersigned, but included in this particular memo, is the one relating
 to which individuals of the 162nd are included in the proposed
 bargaining unit.
 
 
    /17/ While the conversation between these two individuals included
 other items, the undersigned has excluded these matters which have no
 bearing on the issue of alleged interference as alleged in 5(a) of the
 Complaint herein.  The facts set forth in respect thereto represent the
 credited version of the conversation.  Note is taken that while Smith
 denied stating he would be watching Leflohic, no denial appears in the
 record regarding the other statements which the employee testified were
 made by the Supervisor.  Moreover, Leflohic's testimony was direct and
 with more exact recall.
 
 
    /18/ The details of the discussion bearing on the issue of
 interference, as set forth herein, are the credited version thereof.
 They represent the more direct and reliable testimony which, in regard
 to certain essentials, remained uncontradicted.
 
 
    /19/ The undersigned is mindful that the Authority has found
 statements to run afoul of 7116(a)(1) where the same statements were
 sufficient to set aside an election.  Where such statements interfered
 with a free choice of voters in an election they were held to constitute
 interference under 7116(a)(1) of the Statute.  Department of the Air
 Force, Air Force Plant Representative Office, Detachment 27, Fort Worth,
 Texas, et. al., 5 FLRA No. 62 (1981).  Since the statements by Hartnett
 herein were also alleged as objectionable conduct to this election
 (Objection No. 13), they could be deemed 7116(a)(1) interference if also
 found sufficient to set aside said election.  However, and as
 hereinafter set forth, the undersigned concludes Hartnett's expressions
 did not per se exceed the permissible limit of 7116(e) so as to warrant
 setting aside the election herein.
 
 
    /20/ While these statements do not exactly track the allegations in
 paragraph 5(a) of the Complaint, I am satisfied the allegations therein
 are sufficient to embrace the findings and conclusions in regard
 thereto.
 
 
    /21/ While this case arose under Executive Order 11