18:0583(73)CA - 162nd Tactical Fighter Group, Arizona NG, Tucson, AZ and AFGE Local 2924 -- 1985 FLRAdec CA
[ v18 p583 ]
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 11491, as amended, the same standard exists under the Statute in determining the coercive effect of such remarks to employees. /22/ The correlative right of employees i s found in Section 7102 of the Statute. /23/ The fact that other Union literature was not removed from the break room does not justify a different conclusion. Reasons could well have existed for the non-removal by Carpenter or other supervisors of such items. /24/ In the cited case the statements were made by an instructor whom the Authority found was neither a supervisor nor a management official. Accordingly, and on that ground, it dismissed the objection. 4 /25/ The December 1 memo is not patently referable to the election or the Union. Further, the December 6 memo publicizes the forthcoming election and encourages employees to vote-- all as permissible under 7116(e).