20:0705(84)CA - Air Force, Davis-Monthan AFB, Tucson, AZ And AFGE Local 2924 -- 1985 FLRAdec CA



[ v20 p705 ]
20:0705(84)CA
The decision of the Authority follows:


 20 FLRA No. 84
 
 UNITED STATES AIR FORCE 
 DAVIS-MONTHAN AIR FORCE BASE 
 TUCSON, ARIZONA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2924, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-40371
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the complaint, and recommending that
 it be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions to the Judge's
 Decision and the General Counsel filed an opposition to the exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended 0rder.  /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 United States Air Force, Davis-Monthan Air Force Base, Tucson,
 Arizona, shall:
 
    1. Cease and desist from:
 
    (a) Interfering with, restraining, or coercing its employees by
 threatening to discipline any agents of the American Federation of
 Government Employees, Local 2924, AFL-CIO, or any other exclusive
 representative, for protected conduct occurring during the performance
 of their representational functions.
 
    (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 located at the Davis-Monthan Air Force
 Base, 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 an appropriate official 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.
 
    Issued, Washington, D.C., November 22, 1985
 
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The Respondent 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 had 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.
 
 
 
 
                          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
 threatening to discipline any agents of the American Federation of
 Government Employees, Local 2924, AFL-CIO, or any other exclusive
 representative, for protected conduct occurring during the performance
 of their representational functions.
 
    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, Region VIII, Federal Labor Relations Authority, whose
 address is:  350 South Figueroa Street, 10th Floor, Los Angeles,
 California 90071, and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    UNITED STATES AIR FORCE DAVIS-MONTHAN 
    AIR FORCE BASE TUCSON, ARIZONA
               Respondent
 
    and
 
    AMERICAN FEDERATION OF GOVERNMENT 
    EMPLOYEES, LOCAL 2924, AFL-CIO
              Charging Party
 
    Deborah Wagner, Esquire For the General Counsel
 
    Michael T. Coiro For the Charging Party
 
    Major Charles D. Beckenhauer For the Respondent
 
    Before:  BURTON S. STERNBURGE Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on July 23, 1984, by the American
 Federation of Government Employees, Local 2924 (hereinafter called the
 AFGE or Union), a Complaint and Notice of Hearing was issued on October
 29, 1984, by the Regional Director for Region VIII, Federal Labor
 Relations Authority, Los Angeles, California.  The Complaint alleges
 that the United States Air Force, Davis-Monthan Air Force Base, Tucson,
 Arizona, (hereinafter called the Respondent or Air Force Base), violated
 Section 7116(a)(1) of the Federal Service Labor-Management Relations
 Statute, (hereinafter called the Statute), by virtue of its actions in
 threatening a unit employee with removal because of his participation in
 protected union activities.
 
    A hearing was held in the captioned matter on January 18, 1985, in
 Tucson, Arizona.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post hearing briefs on February 19, 1985, which
 have been duly considered.
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of a unit consisting, among
 others, of all wage grade employees serviced by the Central Civilian
 Personnel Office, Davis-Monthan Air Force Base.  The Union and the
 Respondent have been parties' to a number of collective bargaining
 agreements covering such employees for a number of years.  The most
 recent collective bargaining contract has been effective since October
 6, 1980.
 
    On a date unspecified in the record, Mr. John Sullivan, a unit
 employee, was awarded a one day disciplinary suspension.  The suspension
 was grieved by the Union and subsequently, at the third step of the
 grievance procedure, reduced to a "counseling." Mr. Edward Margosian,
 Vice-President of the Union, served as Mr. Sullivan's representative
 during the grievance proceedings.
 
    On June 4, 1984, Mr. Sullivan went to Mr. James R. Chisum's office
 for purposes of receiving his "counseling".  /1/ Mr. Margosian appeared
 at Mr. Chisum's office shortly after Mr. Sullivan.  Upon Mr. Margosian's
 entry into the office, Mr. Chisum proceeded to present Mr. Sullivan his
 971 file, which is a supervisor's record of the employee's employment
 history.  Although, not entirely clear from the record whether certain
 notations were in the 971 file of Mr. Sullivan or about to be put in, it
 is clear that the entries became the subject matter of a conversation
 between Mr. Margosian and Mr. Chisum.
 
    During the course of the conversation wherein the merits of the 971
 entries were being discussed, Mr. Margosian admittedly asked Mr. Chisum
 "if he was a probationary manager." According to Mr. Margosian, Mr.
 Chisum looked up and asked if he was threatening him.  Further,
 according to Mr. Margosian, he stated "No, I am not threatening you."
 According to Mr. Margosian, he then explained his rationale "as to why
 he asked the question".  When asked to specifically state what he told
 Mr. Chisum following his denial that the question was a threat Mr.
 Margosian testified as follows:
 
       "Okay, the reason why I asked him that question was I wanted to
       establish-- I wanted to establish the mitigating circumstances as
       to why the supervisor was not cognizant of the Rules and
       Regulations that pertained to putting entries in on employee's
       971, and that the entries were not warranted, and the reasons why
       they weren't warranted, and he was not cognizant of those
       reasons."
 
    Mr. Chisum then replied that he perceived his question as a threat.
 Mr. Margosian then told Mr. Chisum "my question is not a threat." At
 that point Mr. Sullivan interjected "that's not a threat." He is just
 asking a question." Thereafter, the parties proceeded to discuss the 971
 entries.  Upon leaving the meeting Mr. Margosian informed Mr. Chisum
 that he was going to check out some of the facts and would get back to
 him in a couple of days.
 
    According to Mr. Sullivan, after he and Mr. Margosian became aware of
 the 971 entries, Mr. Margosian asked Mr. Chisum if he was a probationary
 supervisor.  When Mr. Chisum replied in the affirmative, Mr. Margosian
 then stated, "That might explain why these entries are derogatory and
 false.  Maybe you don't know the full rules and regulations about 971
 entries." Mr. Chisum then replied, "I know all the regulations about 971
 entries, and they stay in there." According to Mr. Sullivan, the meeting
 ended with Mr. Margosian telling Mr. Chisum that he was going to check
 on the 971 entries and investigate them a little bit further.
 
    According to Mr. Chisum, during the meeting Mr. Margosian stated "you
 are on probation at this time, aren't you?" He, Mr. Chisum replied,
 "What does this have to do with this meeting." He further added that he,
 Mr. Chisum, had 28 years of service and he, Mr. Margosian, did not scare
 him.  Further according to Mr. Chisum, following the above exchange Mr.
 Margosian made no further remarks about Mr. Chisum's probationary
 status, but "did say he was going to have me investigated because he
 felt I wasn't doing my job."
 
    Following the meeting, Mr. Chisum wrote up a memorandum of the
 meeting and forwarded it to the Civilian Personnel Office.  The
 memorandum which described in detail many of Mr. Margosian's questions
 concerning the 971 entries, how they were made, and whether or not Mr.
 Sullivan had advanced notice of same, went on to state as follows:
 
       At that time the union representative ask me if I was on probation
       and I said yes.  What would that have to do with this?  Then I
       said I have 28 years in government work and you don't scare me.
       The union representative ask me to remove the form 971 entries and
       I said no.  Then the union representative said your not doing your
       job either and I am going to prove it.  The Union representative
       ask for the aircraft tail no. that the entries were based on.  I
       said I would get them for him - then the union representative said
       I am going to do some checking on you and on the 971 entries made
       on Mr. Sullivan.  We will be back in 2 or 3 days for another
       meeting.  I said OK this meeting is over have a good day.
 
    On June 13, 1984, Mr. Margosian was summoned to the Civilian Office
 of Personnel.  Upon entering the office of Mr. James Murphy, the
 Civilian Personnel Officer, he was told to sit down.  Whereupon, Mr.
 Murphy told him, "The next time you threaten a manager of mine, I'm
 going to have you removed from government service.  Do you understand
 what I am saying." Mr. Margosian asked him, Mr. Murphy, "On what basis
 are you making these remarks." Mr. Murphy replied that he had a letter
 from Mr. Chisum wherein it was reported that during a grievance meeting
 he, Mr. Margosian, had asked Mr. Chisum whether he was a probationary
 manager and that Mr. Chisum perceived the question as a threat.  Mr.
 Murphy further told Mr. Margosian that he "made a tactical error and
 that he did not want to see Mr. Margosian get into trouble." Mr.
 Margosian replied that he did not think that he had made a tactical
 error and that he had merely asked the man a question.  Mr. Margosian
 then used Mr. Murphy's telephone to call Mr. Joseph Picca, the Secretary
 Treasurer of the Local, who at the time was the next ranking officer in
 the Local.  Mr. Picca arrived at Mr. Murphy's office approximately
 twenty minutes later.  During the interim, according to Mr. Margosian,
 he tried to tell Mr. Murphy that he was not trying to discredit Mr.
 Chisum but that some of the 971 entries were false.  Mr. Murphy kept
 repeating that he, Mr. Margosian, had made a tactical error.
 
    Subsequently, according to Mr. Margosian and Mr. Picca, when Mr.
 Picca arrived at the office, Mr. Margosian summed up what had happened.
 Mr. Picca then asked Mr. Murphy how he could perceive a question as a
 threat.  Mr. Murphy then pointed out that they had a supervisor in the
 same shop that had been demoted while he was in probationary status and
 Mr. Chisum perceived the question to be a threat to his status as a
 foreman.  The discussion turned to other subjects following Mr. Murphy's
 statement to Mr. Margosian that if it happened again he would be removed
 from government service.
 
    According to Mr. Murphy, upon reading Mr. Chisum's memorandum
 covering the June 4th meeting and noting that the question had no part
 in the investigation", he concluded that the question concerning Mr.
 Chisum's probationary status was related to the personnel action taken
 several months earlier with respect to the removal of another supervisor
 during his probationary period.  In such circumstances he construed the
 remark to constitute a threat to Mr. Chisum's supervisory status.
 Further, according to Mr. Murphy, prior to confronting Mr. Margosian he
 had one of his aides check with Mr. Chisum to see if he indeed perceived
 the question as a threat.  Upon receiving an affirmative reply he
 summoned Mr. Margosian to his office.
 
    When Mr. Margosian arrived at his office he told Mr. Margosian as
 follows:
 
          "Ed, it has been brought to my attention that when you were
       running one of your investigations as a representative of
       somebody, that you exceeded the authority of your office.  You
       threatened a supervisor to a point where you were trying to scare
       him into doing something that he didn't feel like doing.
 
          "The threat had nothing to do with your investigation except to
       scare the individual.  An this intolerable.  And I am going to
       tell you flat out right now if you do it again, I will bring
       charges against you.  And if you keep it up, I will get you fired.
        That's all."
 
    According to Mr. Murphy, Mr. Margosian's only response was to accuse
 Mr. Murphy of threatening him.
 
                        Discussion and Conclusions
 
    The General Counsel, relying primarily on the Authority's decision in
 Department of the Navy, Puget Sound Naval Shipyard, Bremerton,
 Washington, 2 FLRA No. 7, takes the position that Mr. Margosian's action
 in asking Mr. Chisum whether he still was a probationary supervisor did
 not constitute "flagrant misconduct" beyond the ambit of protected
 activity.  In such circumstances, the General Counsel urges a Section
 7116(a)(1) finding since the warning issued by Mr. Murphy to Mr.
 Margosian tended to interfere with, restrain and coerce him in the
 exercise of his Section 7102 right to freely, and without fear of
 reprisal, to act as a union representative.
 
    Respondent, on the other hand, takes the position that the question
 was tantamount to a threat, and conceived as such by Mr. Chisum, and
 therefore exceeded the bounds of protected activity.  Accordingly,
 Respondent was well within its rights in admonishing Mr. Margosian that
 a reoccurrence of such conduct would result in appropriate discipline,
 namely, discharge from the Federal Service.  In support of its position,
 Respondent points out that the remark was unrelated to the subject
 matter under discussion and was an attempt to bring pressure upon the
 supervisor to remove the 971 entries or face complaints with respect to
 his qualifications as a supervisor.
 
    Having observed the witnesses and their demeanor, I credit Mr.
 Margosian's testimony that following his question concerning whether Mr.
 Chisum was still a probationary supervisor he explained the reasons for
 the question.  To the extent that Mr. Chisum's testimony does not
 indicate that Mr. Margosian proffered an explanation for his question, I
 do not conclude that his testimony was in any degree fabricated.
 Rather, Mr. Chisum impressed me as a very sensitive gentleman who became
 incensed at the suggestion that he might not know the rules and
 regulations and turned a deaf ear to any explanations that might have
 been forthcoming from Mr. Margosian following his unexpected challenge
 to Mr. Chisum's qualifications.
 
    Having credited Mr. Margosian's testimony that he followed up his
 question concerning Mr. Chisum's probationary status with an explanation
 of the reason for the question, I find, contrary to the contention of
 the Respondent, that Mr. Margosian did not threaten Mr. Chisum and
 thereby possibly exceed the bounds of protected union activity.
 Accordingly, having found that Mr. Margosian's actions fell within the
 protection of the Statute, it follows that Mr. Murphy's threat of future
 disciplinary action predicated upon a reoccurrence of such protected
 union activity was violative of Section 7116(a)(1) of the Statute since
 the threat had a tendency to interfere with, coerce and restrain Mr.
 Margosian in the future exercise of his Section 7102 right to freely and
 without fear of reprisal, act as a union representative.
 
    Moreover, even if it be concluded that Mr. Margosian's had not
 proffered a reason for his question, I still could not find, as urged by
 Respondent, that Mr. Margosian's action in merely propounding the
 question exceeded the bounds of protected union activity.  Respondent's
 position is based solely upon the assumption that the only logical
 reason for the question was to put Mr. Chisum on notice that he could
 anticipate the same future as his predecessor, namely demotion during
 his probationary period, if he, Mr. Chisum, did not remove the 971
 entries.  However, contrary to Respondent, an equally valid assumption
 would be that the question was intended to be derogatory in nature and
 convey to Mr. Chisum that due to his short tenure as a foreman he lacked
 the necessary expertise in the area of 971 entries.  /2/
 
    In any event, I find the question, standing alone, to be too
 ambiguous to support Respondent's position that it constituted a threat
 and therefore fell outside the ambit of protected union activity.
 
    Having concluded that the Respondent violated Section 7116(a)(1) of
 the Statute by threatening Mr. Margosian because of his participation in
 activities protected by the Statute, I recommend that the Federal Labor
 Relations Authority issue the following order designed to effectuate the
 purposes and policies of the Statute.
 
                                   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 United States Air Force, Davis-Monthan Air Force Base, Tucson,
 Arizona shall:
 
    1. Cease and desist from:
 
       (a) Interfering with, restraining, or coercing its employees by
       threatening to discipline any agent of the American F