20:0818(102)CA - 162nd Tactical Fighter Group, Arizona Air NG, Tucson, AZ and AFGE Local 2924 -- 1985 FLRAdec CA



[ v20 p818 ]
20:0818(102)CA
The decision of the Authority follows:


 20 FLRA No. 102
 
 162ND TACTICAL FIGHTER GROUP 
 ARIZONA AIR NATIONAL GUARD 
 TUCSON, ARIZONA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2924, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-40172
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision and a supporting brief, and the General Counsel
 filed an opposition to the Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Specifically, the
 Respondent excepts to the Judge's ruling that an individual should not
 be permitted to testify, and contends that such ruling constituted a
 denial of due process.  The Authority adopts the Judge's ruling in this
 regard, noting his finding that the individual had not been sequestered
 during the hearing as the other witnesses had been sequestered pursuant
 to the parties' agreement, and noting further the Judge's observation
 that the Respondent's offer of proof as to what the individual's
 testimony would be if he were permitted to testify demonstrated that
 such testimony was not material to the issues to be decided in the case.
  In this latter regard, there has been no showing of prejudice to the
 Respondent's case due to the unavailability of this witness.  Upon
 consideration of the Judge's Decision and the entire record, the
 Authority hereby adopts the Judge's findings, /1/ conclusions and
 recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the 162nd Tactical Fighter Group, Arizona Air
 National Guard, Tucson, Arizona shall:
 
    1. Cease and desist from:
 
    (a) Interfering with, restraining or coercing its civilian employees
 by telling the employees that they are being watched more closely
 because of their exercise of protected rights under the Statute and by
 threatening the employees that they will come under closer scrutiny
 because of their exercise of such protected rights, including the right
 to participate in an unfair labor practice hearing before the Federal
 Labor Relations Authority.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of 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 Tucson, Arizona facilities 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.
 
    Issued, Washington, D.C., December 11, 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 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 tell our civilian employees that they are being watched
 more closely because of their exercise of protected rights under the
 Statute and by threatening the employees that they will come under
 closer scrutiny because of their exercise of such protected rights,
 including the right to participate in an unfair labor practice hearing
 before the Federal Labor Relations Authority.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights guaranteed 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 VIII,
 whose address is:  350 South Figueroa Street, 10th Floor, Los Angeles,
 California 90071, and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 162ND TACTICAL FIGHTER GROUP ARIZONA 
 AIR NATIONAL GUARD TUCSON, ARIZONA
    Respondent
 
    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2924, AFL-CIO
    Charging Party
 
    Victor R. Schwanback, Esq.  For the Respondent
 
    Jonathon S. Levine, Esq.  For the Charging Party
 
    Before:  ELI NASH, JR.  Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7107 et seq.
 (hereinafter called the Statute).  It was instituted by the Regional
 Director of Region 8 based upon an unfair labor practice charge filed on
 March 12, 1984, and amended on April 4, 1984-- /1/ , by the American
 Federation of Government Employees, Local 2924, AFL-CIO, (hereinafter
 called the Union), against the 162nd Tactical Fighter Group, Arizona Air
 National Guard, Tucson, Arizona, (hereinafter called the Respondent),
 alleging a violation of section 7116(a)(1) of the Statute.  A Complaint
 and Notice of Hearing issued on July 31, 1984, alleging that Respondent
 threatened employees that working conditions would be worse after they
 participated in a Federal Labor Relations Authority unfair labor
 practice hearing and that employees had been watched more closely
 because of their union activities in violation of section 7116(a)(1) of
 the Statute.
 
    Respondent's Answer denied the commission of any unfair labor
 practices.
 
    A hearing was held before the undersigned in Tucson, Arizona, at
 which the parties were represented by counsel and afforded full
 opportunity to adduce evidence and to call, examine, and cross-examine
 witnesses and to argue orally.  Timely briefs were filed by the
 Respondent and the General Counsel and have been duly considered.
 
    Upon consideration of the entire record in this case, including my
 observation of the witnesses and their demeanor, I make the following
 findings of fact, conclusions of law, and recommendation.
 
                             Findings of Fact
 
    On March 9, 1984, an unfair labor practice hearing involving the
 162nd Tactical Fighter Group was scheduled to be heard in Tucson,
 Arizona.  The hearing, in Case No. 8-CA-30429 resulted from a directive
 concerning official time for attendance at another unfair labor practice
 hearing which occurred in June 1973.
 
    On the evening of March 7, 1984, Master Sergeant Ernest Pain, an
 admitted supervisor, instructed employees Patrick McIntyre, Ernesto
 Lopez and George LeFlohic, to meet with him in Major Salcido's office.
 All of the witnesses involved herein are uniformed members of the
 Arizona Air National Guard.  All are electronic mechanics and Sgt. Pain
 is an electronic mechanic foreman.  Although Sgt. Pain supervised these
 employees he worked on the day shift while they worked the evening or
 night shift.  Their shifts, however overlapped.  At the time of the
 above meeting, Sgt. Pain was aware that McIntyre and Lopez had been
 subpoenaed to testify at an Authority hearing on Friday, March 9, 1984.
 
    Sgt. Pain began the meeting by stating that the employees had not
 done any work on the previous evening when there had been work to be
 done.  Lopez responded that when they reported to work the previous day,
 Victor Mendoza from the day shift had told him that there was no work to
 be done except to cover the airplanes coming down if they needed to be
 repaired.  Lopez informed Pain that all the airplanes had come back in
 good shape so there was nothing to be done.  LeFlohic added that they
 had all taken an hour for cleanup and there wasn't anything else to do.
 To which Pain retorted that there was an adapter power supply (APS) and
 two heading repeater modules (HRM's) that had needed to be run that
 didn't get worked on.  McIntyre replied that when he went back to look
 at the APS that was on the bench, there was a "350" tag on it, and it
 had been marked "completed." McIntyre also told Pain he hadn't noticed
 the HRM's when he had gone into the back room and inquired as to why the
 day shift hadn't run them.  Pain responded that they had come in late in
 the shift and they couldn't get anybody on day shift to work on them.
 Sgt. Pain continued that if the employees couldn't have found any work
 to do then they could have worked on their MEI project.  He said he had
 looked at those projects and had seen that they hadn't worked on them at
 all.
 
    According to the employees, after Sgt. Pain told them of the work
 they had allegedly failed to do, he went on to say that a night shift
 supervisor had turned them in for sitting around the supervisor's desk,
 drinking and spilling coffee and fooling around, and that a T.O. cabinet
 had been broken.  The employees denied sitting around his desk, fooling
 around and spilling coffee and informed Sgt. Pain that the T.O. glass
 had been broken accidently by another crew chief, Horner.  The employees
 inquired which night shift supervisor had turned them in but, Sgt. Pain
 would only reply, "you've been turned in for this." Specifically, the
 three employee witnesses testified that Sgt. Pain said words to the
 effect that the employees were being watched closely and that after
 Friday they would come under closer scrutiny, e.g. "You're being watched
 closely, and you'll be watched even more closer come Friday," "They're
 keeping a close eye on your group and after Friday it will get a lot
 worse." "He said that we would be watched closely after Friday it would
 get worse." "WE were being watched closely, and Friday, things are going
 to get worse that Friday." "Well, if you think you're being watched now,
 wait until after Friday." Lopez and LeFlohic stated that the statement
 by Sgt. Pain was made about the middle of the meeting.  Sgt. Pain denies
 making any of the above-referenced statements.  LeFlohic inquired,
 "(d)oes this have anything to do with that trial Friday?" Sgt. Pain did
 not respond but only grinned at the employees.  Sgt. Pain admits that at
 some point in the conversation LeFlohic accused him of coming down hard
 on the employees because of the Authority hearing.  The only significant
 event noted on the record to occur on Friday, March 9, 1984, was the
 Authority unfair labor practice hearing.
 
    When the conversation continued, Sgt. Pain informed McIntyre and
 Lopez that he would be getting together with Willie Kyzer the following
 day to discuss what uniform they would have to wear for the March 9
 hearing.  Sgt. Pain then informed the employees that the various
 avionics supervisors had gotten together and discussed the elimination
 of the night shift which elicited an immediate negative response from
 the employees, particularly McIntyre and Lopez.  The remainder of the
 meeting concerned the proposed elimination of the night shift, after
 which the meeting concluded after lasting for a little over an hour.
 
    After the meeting, McIntyre and Lopez investigated Sgt. Pain's
 claims.  According to them, when they returned to the shop they noticed
 that the APS was gone;  they also noticed that the HRM's were in the
 "Awaiting Parts" bin when they should have been in the "Awaiting
 Maintenance" bin.  Then McIntyre checked the "form 1348", for the two
 HRM's which indicated that the HRM's had been received by the day shift
 at 9:20 a.m. of March 6, 1984 and not at the end of the shift as Pain
 had told the employees.  McIntyre and Lopez also checked the dispatch
 logs for March 6, 1984, which showed that the day shift had had only a
 couple of jobs to perform, leaving ample time to run the HRM's.
 
    Meanwhile, LeFlohic returned to the shop and was told by McIntyre
 that the 1348's showed that the HRM's had been signed for at 9:20 a.m.
 the morning when Sgt. Pain had said they had come in towards the end of
 the shift.  As a result, LeFlohic called Sgt. Pain and told him that the
 HRM's had been signed for in the morning.  Sgt. Pain replied, "(y)eah, I
 know they were, I signed for them, I didn't have anybody available to
 work on them at the time." LeFlohic told the other two employees of his
 conversations with Pain who informed him that Mendoza, not Pain, had
 signed for the HRM's, and that according to the dispatch log, four day
 shift employees had been available to service the HRM's.  McIntyre and
 Lopez then ran the two HRM's, cleaned up the shop, after which McIntyre
 went to get the MEI kit for him and LeFlohic to work on.  McIntyre could
 not find the MEI project in the forward supply part room or the shop
 where he works and as a result, went to the hanger to see if it was
 there.  He proceeded to the avionics section where test equipment is
 calibrated and was shown a log which showed that the project was at
 Davis-Monthan Air Force Base where it had been a week and a half in
 order to be calibrated.  When he returned to the shop he told LeFlohic,
 "Hey George, that MET kit's not here.  I checked over in "Ads" and the
 paperwork over there shows that it has been gone a week and a half so
 there's no way Ernie (Sgt. Pain) could have looked at it."
 
    On that night, the employees' night shift supervisor, John Dupont,
 came into the shop.  The employees asked him if he had been the
 supervisor who had turned them in, which he denied.  Thereafter, George
 Carpenter, the night shift supervisor in charge of the entire base, came
 into the shop and also denied turning the employees in for fooling
 around.  Dupont and Carpenter were apparently the only night shift
 supervisors who could possibly have turned the employees in on the night
 of March 6, 1984.
 
    Following the March 9, 1984, FLRA hearing, sometime during the middle
 of March 1984, Sgt. Pain and Lopez met concerning the latter's
 preevaluation.  Sgt. Pain began the meeting by asking Lopez, "Have you
 noticed that you and Pat have been kept a closer eye on?" Lopez replied,
 "Yes, I have.  As a matter of fact I talked to Archie . . . and he
 denied it." Pain merely looked at Lopez, smiled, and went into the
 evaluation.  "Archie" was Lopez's night shift supervisor at the time.
 Lopez assumed that Pain was referring to Pat McIntyre.
 
                        DISCUSSION AND CONCLUSIONS
 
    The amended complaint in this matter alleges that certain conduct of
 an admitted supervisor interfered with, restrained, and coerced several
 employees in violation of section 7116(a)(1) of the Statute.  The
 testimony of the witnesses upon which the amended complaint is based
 presents a sharp conflict which can be resolved only through credibility
 determinations.
 
    The Charging Party's witnesses McIntyre, Lopez and LeFlohic all
 testified that Sgt. Pain, in essence, told them "you're being watched
 closely, and you'll be watched more closely after Friday." While the
 wording of their testimony differs, there are no inherent
 inconsistencies which would cause one to discredit that testimony.
 Their testimony becomes even more plausible when one observes that the
 only significant event which was to occur on Friday, March 9 was the
 Authority unfair labor practice hearing in which several of the
 witnesses herein had been subpoenaed to testify.  Absent evidence of any
 other significant event to occur on that day, it is reasonable to assume
 that Sgt. Pain's reference was to the unfair labor practice hearing.  I
 credit their testimony and reject any inference that this statement was
 made regarding the work habits of the employees involved.
 
    In reflecting the testimony of Sgt. Pain, I rely not only on his
 demeanor as a witness but also, reject Respondent's argument that Sgt.
 reference was to certain manpower changes.  While it is true that
 manpower changes were discussed, it is clear from the record that those
 changes were to take place at a later time.  Further, manpower changes
 were specifically discussed during this meeting albeit much later in the
 conversation and there was no mention of any event to connect such
 changes with Friday, March 9. Therefore, I find no connection in the
 record between the manpower changes and March 9. Moreover, the unfair
 labor practice hearing which was about to occur no doubt charged some
 emotions creating a situation where these employees could reasonably
 have drawn a coercive or intimidating inference from Sgt. Pain's
 statement.  Federal Mediation and Conciliation Service, 9 FLRA 199
 (1982).  In all the circumstances of the case, it is my view that the
 General Counsel established by a preponderance of the evidence that Sgt.
 Pain made certain statements to these three employees which were
 coercive in nature.
 
    Based on the foregoing, it is found that Sgt. Pain's remark to
 employees McIntyre, Lopez and LeFlohic that "you're being watched
 closely, and you'll be watched more closely after Friday" while he was
 relating job deficiencies constituted a threat and coercion and was
 violative of section 7116(a)(1) of the Statute.
 
    Similarly, Sgt. Pain's remark to Lopez during the mid-March 1984
 preevaluation meeting reaffirmed his earlier prediction to all three
 employees that they would be under closer scrutiny because of their
 participation in the March 9, 1984 hearing before the Authority.  This
 statement which occurred sometime later reinforces my view that Sgt.
 Pain's March 7 statement was indeed a threat which was coercive in
 nature and a threat which Respondent intended to carry out.
 
    Accordingly, I find as alleged that the inquiry to Lopez also
 constitutes interference, coercion and a threat in violation of section
 7116(a)(1) of the Statute.
 
    Based on the foregoing it is recommended that the Authority adopt the
 following:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 USC Section 7118(a)(7)(A), and
 Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. Section
 2423.29(b)(1), the Authority hereby orders that the 162nd Tactical
 Fighter Group (ANG) (TAC), Tucson, Arizona, shall:
 
    1. Cease and desist from:
 
       (a) Interfering with, restraining or coercing its civilian
       employees by telling the employees that they are being watched
       more closely because of their exercise of protected union
       activities and by threatening the employees that they will come
       under closer scrutiny because of their exercise of protected union
       activities.  (b) In any like or related manner, interfering with,
       restraining or coercing its employees in the exercise of the
       rights guaranteed under the Federal Service Labor-Management
       Relations Statute.
 
    2. Take the following affirmative actions in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
       (a) Post at its Tucson, Arizona facility 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 and shall be posted and maintained for 60
       consecutive days thereafter, in conspicuous places, including all
       bulletin boards and other places where notices are customarily
       posted.  Reasonable steps shall be taken by the Union to ensure
       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 8,
       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.
                                       ---
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  January 11, 1985
    Washington, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ At the hearing, the General Counsel amended the Complaint to
 delete paragraph 5(b).
 
 
 
 
 
                                 Appendix A