22:0122(11)CA - 162nd Tactical Fighter Group, Arizona Air NG, Tucson, AZ and AFGE Local 2924 -- 1986 FLRAdec CA



[ v22 p122 ]
22:0122(11)CA
The decision of the Authority follows:


 22 FLRA No. 11
 
 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
                                                 (18 FLRA No. 73)
 
             DECISION AND ORDER ON MOTION FOR RECONSIDERATION
 
                         I.  Statement of the Case
 
    This matter is before the Authority on a motion by the Charging
 Party/Petitioner for reconsideration of a portion of the Authority's
 decision in 162nd Tactical Fighter Group, Arizona Air National Guard,
 Tucson, Arizona, 18 FLRA No. 73 (1985).
 
                       II.  The Authority's Decision
 
    On June 21, 1985, the Authority issued its Decision and Order in the
 above-entitled consolidated proceeding.  The Authority found that:  (1)
 the objections to the election in Case No. 8-RO-30002 of the
 consolidated proceeding were all without merit;  (2) certain comments
 made by the Respondent's Commanding Officer in Case No. 8-CA-30099 did
 not constitute a violation of section 7116(a)(1) of the Statute;  and
 (3) certain remarks made by a management official of the Respondent in
 Case No. 8-CA-30098 were violative of section 7116(a)(1) of the Statute.
 
    In reaching its conclusion with respect to Case No. 8-CA-30099, the
 Authority found as follows:
 
          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/
 
    (3) These comments were not the subject of objections to the
 election.
 
                   III.  The Motion for Reconsideration
 
    By timely motion dated July 3, 1985, the Charging Party/Petitioner
 (the Union) seeks reconsideration of the Authority's decision as it
 pertains to Case No. 8-CA-30099 and to a portion of Case No. 8-RO-30002,
 contending that the Authority's decision in certain respects was based
 upon an error in its findings of fact.
 
    The Union argues that the Commanding Officer's statement in Case No.
 8-CA-30099 could not have been meant to "correct the record" within the
 meaning of section 7116(e) of the Statute /*/ because the statements
 that the Authority found the Commanding Officer was correcting (as noted
 above) had not yet been made at the time he held the December 10 meeting
 with the employees.  The Union further argues that the Authority should
 thus find a violation in Case No. 8-CA-30099, and should further sustain
 Objection No. 13 in Case No. 8-RO-30002, as the conduct in Case No.
 8-CA-30099 is properly a part of this objection.
 
    Section 2429.17 of the Authority's Rules and Regulations provides, in
 part, that a "party . . . who can establish . . . extraordinary
 circumstances . . . may move for reconsideration" of an Authority
 decision.  Upon review of the Union's motion, the Authority concludes
 that reconsideration of the decision as it pertains to Case No.
 8-CA-30099 should be granted, as review of the record shows and we now
 find that in fact certain comments made by Union supporters to
 supervisor Carpenter, and relied upon by the Authority in reaching its
 original conclusion, were made subsequent to the Commanding Officer's
 December 10 meeting with the employees, thus calling into question the
 basis for the Authority's original conclusion.
 
                     IV.  Analysis on Reconsideration
 
    A.  Case No. 8-CA-30099
 
    The complaint in Case No. 8-CA-30099 alleged that the respondent's
 Commanding Officer made certain statements at a meeting of its employees
 five days before an 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,
 and (2) that the Union officials acted in poor taste or in an
 underhanded manner in distributing union election material, and the
 Authority reaffirms its adoption of 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, however, that the statement did not violate section
 7116(a)(1) of the Statute.
 
    In its decision, the Authority, noting certain statements made to one
 of management's supervisors, found that the Commanding Officer's
 comments at the December 10 meeting with regard to the distribution of
 union literature were permissible under section 7116(e) of the Statute,
 because such comments served to "correct the record," and therefore did
 not violate the Statute.
 
    A review of the record shows that the statements the Authority noted
 in reaching its conclusion were in fact made after the Commanding
 Officer's December 10 meeting and therefore could not serve as the
 justification for the Commanding Officer's statements.  However, upon
 review of all the facts in this case, we again conclude that the
 Commanding Officer's comments did serve to "correct the record."
 
    The Authority notes, as found by the Judge, that:  (1) the Union, by
 a pre-election agreement, waived its right to distribute campaign
 literature on the base during the election campaign;  (2) after the
 parties reached that agreement Major Kyzer, a representative of
 management, advised the Commanding Officer of the Union's agreement;
 (3) despite the agreement, management discovered that campaign
 literature, on behalf of the Union, had been posted on bulletin boards
 and walls throughout the base prior to the election;  (4) Major Kyzer
 notified Union President Michael Coiro that campaign literature had been
 so posted;  (5) Coiro advised Kyzer that the literature would be
 removed, and it was removed by Union and management representatives;
 (6) Coiro disclaimed Union authorization of or responsibility for the
 posting.
 
    Beyond the Judge's findings, the undisputed record evidence also
 reveals that:  (1) Kyzer, following his conversation with Coiro, advised
 the Commanding Officer of the results of this conversation, including
 Coiro's disclaimer;  (2) the literature (examples of which are in
 evidence) was clearly "official" AFGE literature, containing the
 official AFGE logo and other Union identifiers;  (3) employee Jon Webb,
 who was very active in supporting the Union's campaign, posted the AFGE
 literature referred to above, along with other employees;  and (4) Webb
 had been given that literature by Union President Coiro for the purpose
 of distribution and/or posting at various break room locations on the
 base.
 
    The Commanding Officer, in response to a question at the hearing
 concerning why he had mentioned anything to employees at the December 10
 meeting regarding the campaign agreement, stated in part:
 
          There were voluntary statements made by . . . people
       representing the Union side that there would not be campaigning on
       the base.  (Given such) (w)e had not expected that there would be
       campaigning on the base.
 
          And then, just short of that Friday, the 10th of December, I
       saw a great escalation of Union literature appearing about the
       base.  I was concerned about it, given the fact that there had
       been a statement there would not be campaigning on the base. . . .
       I mentioned that I was disappointed . . . that the agreement
       essentially was that there would not be, and . . . there was, and
       I thought that demonstrated a lack of good faith on the Union's
       part.
 
    When shown the examples of the AFGE literature in evidence, the
 Commanding Officer testified that that was the type of literature he had
 seen appearing with increasing frequency about the base.  Additionally,
 the Commanding Officer stated, in response to a question, that he did
 not indicate at the Decmber 10 meeting that the Union may have had a
 different understanding of the agreement because he believed that the
 Union had the same understanding of the agreement as he did;  that he
 based this position on his discussion with Kyzer, who had been directed
 by the Commanding Officer to contact the Union and who, after doing so,
 informed the Commanding Officer that the Union "said that they were
 wrong" and the literature "would come down."
 
    It is clear, then, that the Commanding Officer knew of the Union's
 agreement not to campaign, knew and observed that seemingly official
 Union literature had been posted around the base, and knew of the
 Union's disclaimer of responsibility.  In these circumstances, the
 Authority finds that the Commanding Officer had a basis for making the
 comments with regard to the distribution of literature.  The Authority
 concludes that the Commanding 'officer's comments served to "correct the
 record with respect to (a) false or misleading statement made by any
 person" specifically with respect to the Union's disclaimer of
 responsibility for the distribution of campaign literature in the face
 of its agreement not to do so.  In view of the additional record facts
 set forth above, it is apparent that had Coiro not supplied Webb with
 the Union literature, albeit for limited distribution, it would not have
 been posted throughout the base.  Under these circumstances, Coiro's
 disclaimer of the Union's responsibility for or authorization of the
 literature in question was at best misleading.
 
    B.  Case No. 8-RO-30002 (Objection No. 13)
 
    We originally found that the comments that are the subject of Case
 No. 8-CA-30099 were not the subject of any of the objections to the
 election, and we are not presented with anything by this motion for
 reconsideration that would warrant reconsideration of that original
 decision.
 
                              V.  Conclusions
 
    A.  Case No. 8-CA-30099
 
    Accordingly, as the Commanding Officer's comments were permissible
 under section 7116(e) of the Statute, the Authority reaffirms its
 conclusion that the comments did not violate section 7116(a)(1)of the
 Statute.
 
    B.  Case No. 8-RO-30002 (Objection No. 13)
 
    Accordingly, the instant motion for reconsideration as it pertains to
 Case No. 8-RO-30002 (Objection No. 13) is denied, and the Regional
 Director is again directed to take further appropriate action consistent
 with this decision.
 
                                   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 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 hereiwth.
 
    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 10, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) Section 7116(e) 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 of 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.
 
 
 
 
 
 
 
                                 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
 
                   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 organizations.
 
    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 comm