34:0480(81)CO - AFGE, LOCAL 1931, AFL-CIO, NAVAL WEAPONS STATION CONCORD CONCORD, CALIFORNIA and MARC S. CARPENTER -- 1990 FLRAdec CO

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[ v34 p480]
34:0480(81)CO
The decision of the Authority follows:


 34 FLRA NO. 81



         AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                      LOCAL 1931, AFL-CIO
                 NAVAL WEAPONS STATION CONCORD
                      CONCORD, CALIFORNIA
                         (Respondent)

                              and

                       MARC S. CARPENTER
                         AN INDIVIDUAL
                       (Charging Party)

                          9-CO-70001

		      DECISION AND ORDER

   		      January 22, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This unfair labor practice case is before the Authority on
exceptions filed by the General Counsel to the attached
Administrative Law Judge's Decision. The Respondent filed on
opposition to the General Counsel's exceptions.

     The complaint alleged that the Respondent, acting through
its president, violated section 7116(b)(1) of the Federal Service
Labor - Management Relations Statute (the Statute) by causing the
Assistant Fire Chief at the Department of the Navy's Naval
Weapons Station Concord (the Agency) to convey a threat to Marc
Carpenter, a bargaining unit employee. Additionally, the
complaint alleged that the Respondent violated section 7116(b)(2)
by causing or attempting to cause the Agency to discriminate
against Carpenter. 

     We conclude, in agreement with the Judge, that the complaint
should be dismissed. However, we reach our conclusion for
different reasons from those stated by the Judge.

II. Background

     On September 19, 1986, Marc Carpenter, a lead firefighter
with the title of Fire Captain, called a crew meeting. A few days
after the meeting, a steward reported to Union President James
Wright that a bargaining unit employee complained that "'Marc
Carpenter had assembled the workers together during the morning
shift and informed them that the Union was not going to help
(employee) Tracy Gilmour or any other employee in the Fire
Department.'" ALJ Decision at 4, citing Transcript at 96. The
Judge found that Carpenter called the crew meeting because the
discharge of firefighter Gilmour had resulted in a morale problem
among the crew. ALJ Decision at 4.

     During a telephone conversation, Union President Wright told
Assistant Fire Chief Raymond Gilmore that one of his lead
firefighters was making anti-union statements. The Judge found
that Wright described the statements as "'bad-mouthing the Union,
talking against the Union.'" ALJ Decision at 5, citing Transcript
at 40. According to Gilmore's testimony, Wright asked Gilmore if
Gilmore could talk to the lead firefighter who was making the
remarks. Gilmore also testified that Wright told Gilmore that
Wright would like the anti-union remarks stopped. At Gilmore's
request, Wright identified Carpenter as the lead firefighter who
made the statements. In addition, the Judge found that Wright
said that unless the anti-union remarks stopped, Wright would
"'start pushing papers.'" ALJ Decision at 6, citing Transcript at
41. The Judge specifically did not find that Wright "made any
reference whatever as to whom, or as to what, he referred in his
'pushing papers' comment." ALJ Decision at 7.

     After the telephone conversation with Wright, Gilmore called
Carpenter to his office. The Judge found that Gilmore told
Carpenter that "if he (Carpenter) didn't stop bad-mouthing the
Union, Wright was going to start pushing papers." ALJ Decision at
8. Following this conversation, Carpenter filed the unfair labor
practice charge which led to the complaint in this case. 
III. The Judge's Decision

     The Judge found that Carpenter was not a supervisor under
section 7103(a)(10) of the Statute and that fire captains are
part of the bargaining unit at Concord and have served as Union
stewards. ALJ at 3. He found that, as a fire captain, Carpenter
neither hired nor recommended who is to be hired; did not promote
or recommend for promotion; did not have authority directly to
discipline employees; had no  involvement in handling grievances;
and had no  authority to grant leave. Id.

     The Judge noted, however, that, as a fire captain, Carpenter
conducted morning muster, gave instructions and work assignments
to crew members, gave orders, reported on his crew's performance,
and led the engine company in an emergency situation until an
assistant fire chief or the fire chief arrived. Nevertheless, the
Judge found that although fire captains perform duties which
would make them supervisors, they do not devote a preponderance
of their employment time to the exercise of such supervisory
authority which is required by the concluding portion of section
7103(a)(10) of the Statute.

     The Judge considered Authority decisions in which fire
captains were held not to be supervisors under the Statute.
Noting that there was nothing to distinguish Carpenter's duties
from the duties of the fire captains considered by the Authority,
the Judge concluded that Carpenter was not a supervisor within
the meaning of the Statute. ALJ Decision at 4.

     Although the Judge concluded that Carpenter was not a
supervisor, he found that "from time to time (Carpenter) does
engage in supervisory activity." ALJ Decision at 9. Specifically,
the Judge found that Carpenter "exercised supervisory authority"
when he called the crew meeting on September 19, 1986, addressed
the crew, and "bad-mouthed" the Union at the meeting. Id.
Therefore, the Judge concluded that while discharging a
supervisory function, Carpenter had no  protected right under
section 7102 of the Statute to make anti-union comments.
Consequently, the Judge found that the Union's demand that such
conduct be stopped did not interfere with a protected right under
the Statute and did not violate section 7116(b)(1) and (2).

     The Judge also considered whether Carpenter's statements
were protected by section 7116(e) of the Statute. According to
the Judge, nothing in the record indicated that Carpenter
expressed a personal view, argument, or opinion in his
comments about the Union. The Judge also found that Carpenter
made his remarks under coercive conditions. ALJ Decision at 9.
The Judge concluded that anti-union statements by a person acting
in a supervisory capacity at a meeting called by that person
interfered with the employees' protected rights to form, join, or
assist any labor organization freely and without fear of penalty
or reprisal. Thus, the Judge concluded that because Carpenter's
statements were not protected by section 7116(e), the Union's
request that such conduct be stopped did not violate either
section 7116(b)(1) or (2) of the Statute. ALJ Decision at 10.

IV. Positions of the Parties

     A. The General Counsel's Exceptions

     The General Counsel argues that regardless of the context of
Carpenter's statements at the September 19 meeting, Carpenter is
an "employee" within the meaning of section 7116(b) and not a
supervisor under the Statute. The General Counsel asserts that
Authority precedent requires this conclusion. Further, the
General Counsel notes that the 1985 representation election
agreement placed the lead firefighters in the bargaining unit.
Exceptions at 2. Thus, the General Counsel argues that because
fire captains are employees as defined in section 7103(a)(2) of
the Statute they are covered by the protections of section
7116(b)(1) and (2) of the Statute.

     The General Counsel argues that the Judge's decision that
Carpenter was acting in a supervisory capacity when he met with
his crew on September 19 would have a chilling effect on
employees' exercise of statutory rights. According to the General
Counsel, if employees temporarily or occasionally perform
supervisory functions, they would be required to guess whether
they have statutory protections at a given time. Exceptions at
4.

     Furthermore, the General Counsel argues that the evidence
suggests that the meeting Carpenter held with his crew was
outside any supervisory function that he occasionally performed
as a lead firefighter. Id. The General Counsel notes that
Carpenter called the meeting without any direction from
management, no  management official was at the meeting, and no 
evidence was presented as to what Carpenter said at the
meeting.

     Additionally, the General Counsel argues that Carpenter's
statements at the September 19 meeting were not made in
coercive conditions and were Carpenter's personal opinion. The
General Counsel notes that the Judge cited nothing to support his
views that the meeting was coercive and that Carpenter's remarks
were not his opinion. Finally, the General Counsel argues that
the Judge's discussion of section 7116(e) is inappropriate as
that section is relevant only when deciding whether a statement
is an unfair labor practice or a statement of personal views.

     B. The Respondent's Opposition to the General Counsel's
Exceptions

     The Respondent argues, in support of the Judge's decision,
that Carpenter was performing a supervisory role on September 19
when he made his anti-union comments. Respondent's Opposition at
6. The Respondent points out that Carpenter performs a variety of
supervisory duties as a fire captain. Specifically, the
Respondent notes that as part of a captain's responsibility to
instruct other firefighters, he occasionally will conduct
meetings during the course of a shift at which time he will give
supervisory instructions. Id. at 2-3.

     The Respondent asserts that Carpenter was using his
supervisory powers when he called his crew together on September
19, 1986, and made the anti-union comments. Furthermore, the
Respondent argues that Carpenter spoke to a "captive audience."
Id. at 6. The Respondent notes with approval the Judge's
statement that he has "reservations about engagement in
anti-union activity by any person who has supervisory authority
being a protected right under 2." Id. at 7, citing the Judge's
Decision at 9. In support of the Judge's statement, the Union
argues that "any statement made by supervisory authority can have
a chilling effect on rights of other employees." Id. at 7.

     The Respondent also argues that it was appropriate for the
Judge to examine Carpenter's comments under section 7116(e) of
the Statute. Applying section 7116(e), the Respondent argues that
if the expression of personal views contains a threat of reprisal
or force, a promise of benefit, or was made under coercive
conditions, it can constitute an unfair labor practice. The
Respondent argues further that, if the expression of personal
views "constitutes an unfair labor practice, simple logic
dictates that it cannot constitute protected activity"
(underscoring in original). Id.

     Applying section 7116(e) to the facts, the Respondent
concludes that the Judge was correct in finding that 
Carpenter's statements to his crew were not protected by section
7116(e). Id. at 9. The Respondent notes that the General Counsel
is unable to cite any evidence that establishes that Carpenter
was expressing his personal opinion to his crew on September 19.
Further, the Respondent argues that even if Carpenter was
expressing his personal opinion, anti-union statements by a
person acting in a supervisory capacity constitute the type of
statements which are not protected under section 7116(e). Id.
Finally, the Respondent argues that under the General Counsel's
theory, an employee with anti-union views could expound those
views under coercive conditions while a supervisor expressing the
same views under the same conditions causes an unfair labor
practice. The Respondent states "(n)othing in the Statute
suggests that an 'employee' may use supervisory authority in a
coercive manner when use of the same supervisory authority by
others in the same coercive manner is prohibited." Id. at 9-10.

V. Analysis and Conclusion

     For the reasons which follow, we conclude that the Union did
not violate section 7116(b)(1) and (2) when Union President
Wright told Assistant Fire Chief Gilmore that Carpenter was
"'bad-mouthing the Union'" and that Wright would like it stopped
or Wright was going "'to start pushing papers.'" ALJ Decision at
5-6, citing Transcript at 40-41.

     A. Carpenter Was Not Acting in His Supervisory Capacity at
the Crew Meeting

     We agree with the Judge's conclusion that Carpenter is not a
supervisor within the meaning of the Statute. However, we
disagree with his conclusion that Carpenter was acting in his
supervisory capacity when he spoke to his crew on September 19,
1986. We find that Carpenter was at all times a bargaining unit
employee.

     As noted by the Judge, the Authority has previously
considered whether fire captains, or lead firefighters, whose
duties were similar to Carpenter's, were supervisors. In U.S.
Department of the Navy, Marine Corps Base, Camp Pendleton,
California, 8 FLRA  276 (1982) (Camp Pendleton) and Department of
the Navy, Naval Education and Training Center, Newport, Rhode
Island, 3 FLRA  325 (1980) (Newport), the Authority found that
fire captains were not supervisors under section 7103(a)(10) of
the Statute because they did not devote a preponderance of their
employment time to supervisory functions. The Judge found that
there was nothing in the record to distinguish Carpenter's duties
from the duties of fire captains in Camp Pendleton and
Newport. We agree with the Judge's conclusion that Captain
Carpenter was not a supervisor within the meaning of the
Statute.

     However, we do not find support in the record for the
Judge's view that Carpenter was acting in his supervisory
activity when he addressed the crew. We note that the Judge
credited Gilmore's testimony that Wright said that Carpenter
called the meeting on September 19. However, there is no 
evidence concerning the circumstances under which this meeting
was held. The record does not disclose whether Carpenter's
purpose in assembling the crew was primarily to give instructions
and work assignments or whether Carpenter's sole purpose was to
state his views about the Union. Additionally, we note that
Carpenter did not testify as to what he actually said at the
meeting.

     We also note that no  management official attended the
meeting. Furthermore, there is no  evidence that management
encouraged, authorized, or ratified either Carpenter's action in
calling the meeting or his statements in a manner which would
lead employees reasonably to believe that Carpenter was acting on
the Agency's behalf. Finally, as we noted above, fire captains
are bargaining unit employees under the Statute although they
occasionally perform supervisory duties. Therefore, we conclude
that merely assembling his crew is insufficient evidence on which
to find that Carpenter was acting as a supervisor when he made
alleged anti-union statements.

     B. The Respondent Did Not Violate Section 7116(b)(1)

     The General Counsel argues that Wright threatened Carpenter
in violation of section 7116(b)(1) in response to Carpenter's
anti-union statements. Further, the General Counsel asserts that
the Union's action was contrary to Carpenter's protected right
under section 7102 of the Statute to make anti-union statements.
Although Wright did not speak to Carpenter directly, the General
Counsel asserts that the Union used Assistant Chief Gilmore as a
conduit for the threat. In disagreement with the General Counsel,
we find that the Respondent, acting through Union President
Wright, did not violate section 7116(b)(1) of the Statute when
Wright spoke to Assistant Fire Chief Gilmore about Carpenter's
statements.

     In determining whether statements made by union
representatives to employees constitute an infringement of
section 7116(b)(1) of the Statute, the test is whether, 
under the circumstances, the statements tend to interfere with or
coerce employees in the exercise of rights protected by the
Statute. Statements made by union representatives will be deemed
coercive or threatening if an employee could reasonably infer
coercion or a threat. Objective, rather than subjective,
standards are the appropriate guidelines in determining whether
section 7116(b)(1) has been violated. See Overseas Education
Association, 15 FLRA  488 (1984) (OEA).

     Considering the objective facts and circumstances in this
case, we are persuaded that the statements made by Union
President Wright, as found by the Judge, are insufficient for us
to find that Carpenter reasonably could infer that the Union was
threatening or coercing him. The Judge found that Wright only
stated to Gilmore that if the anti-union remarks did not stop,
Wright was going "'to start pushing papers.'" ALJ Decision at 7.
The Judge specifically found that Wright made no  "reference
whatever as to whom, or as to what, he referred in his 'pushing
papers' comment." Id. Although the Judge recognized that Gilmore
may have inferred that Carpenter was the object of Wright's
comment, the Judge found that Wright's statement also could
support an inference that the Agency or that both the Agency and
Carpenter were the objects of Wright's comment. Id.

     We find that Wright's statement about "pushing papers" was
too vague and ambiguous to enable us to conclude that Wright was
threatening or coercing Carpenter. Wright's statement does not
meet the objective standard that the Authority set forth in
earlier decisions. For example, in OEA, 15 FLRA  at 490, the
Authority found a violation of section 7116(b)(1) based on
statements in a union publication which suggested that an
employee would incur the wrath of the union membership for filing
an unfair labor practice charge against the union. The union
published sufficient information to identify the employee and
stated that filing such charges "'cries for vengeance.'" Id. The
Authority concluded that the remarks in the publication violated
section 7116(b)(1) because they constituted implied threats which
tended to have a coercive and restraining effect not only on the
particular employee in the exercise of his protected rights under
the Statute, but also on other employees who might similarly
engage in activity protected by the Statute.

     In this case, we find that it is unreasonable to infer that
Wright's statement about "pushing papers" would have a 
coercive and restraining effect on Carpenter's protected rights
or the rights of other employees who might engage in protected
conduct. We note particularly that the Judge found that Wright's
statement could support an inference that the Agency was the
object of Wright's comments. Thus, we find that the Respondent
did not violate section 7116(b)(1) of the Statute by threatening
to interfere with, restrain, or coerce Carpenter in the exercise
of his right under section 7102 to make anti-union statements.
Compare National Army and Air Technicians Association, Local 371,
7 FLRA  154 (1981) (violation found where union representatives
threatened to bring "charges" against employee and call him as a
witness in an unfair labor practice proceeding against the agency
unless he rejoined the union).

     C. The Respondent Did Not Violate Section 7116(b)(2)

     The General Counsel argues that the Respondent violated
section 7116(b)(2) by attempting to cause the Agency to
discriminate against Carpenter for exercising his protected right
under section 7102 to make anti-union statements. We find that
the Respondent did not cause or attempt to cause the Agency to
discriminate against Carpenter in violation of section
7116(b)(2).

     We find that in order to establish that an unfair labor
practice occurred under section 7116(a)(2), it is not sufficient
to show that an agency acted differently toward an employee or
treated an employee differently from the way it treated other
employees. Before we will find a violation of section 7116(a)(2),
it must be established that an agency has discriminated against
an employee with regard to hiring, tenure, promotion, or other
conditions of employment. See, for example, United States
Department of Defense, Department of the Air Force, Headquarters
47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas,
18 FLRA  142 (1985). In order to find that a union has violated
section 7116(b)(2) of the Statute, the record must show that the
union caused or attempted to cause an agency to discriminate in
connection with an employee's hiring, tenure, promotion, or other
conditions of employment.

     For example, in Overseas Education Association, 11 FLRA 
377, 378 (1983), the Authority found a violation of section
7116(b)(2) where a union requested that an agency take
disciplinary action, such as a reprimand, against an employee. In
that case, the employee distributed an "open letter" to the
faculty publicizing the union's refusal to assist him and urging
that the union representative be "recalled" from her
position. The union expressed concern that the tone of the letter
could have provoked an emotional response among the faculty and
that the employee used the school's ditto machine to reproduce
the letter. Id. at 384-85. The Authority concluded that the union
attempted to cause the agency to discriminate against the
employee in violation of section 7116(b)(2) for having exercised
rights protected by section 7102 of the Statute.

     In this case, there is nothing in the record to support a
finding that the Union caused or attempted to cause the Agency to
take any action adverse to Carpenter's conditions of employment.
Although Wright asked Gilmore to relay a message and Gilmore did
so, Gilmore's act of speaking to employee Carpenter did not
constitute discrimination against Carpenter with regard to
Carpenter terms and conditions of employment. Gilmore's conduct
did not change or affect any of Carpenter's employment
conditions. We find that the Respondent did not attempt to cause
the Agency to discriminate against Carpenter for having exercised
protected rights under the Statute. Therefore, the Respondent did
not violate section 7116(b)(2) of the Statute.

     In Conclusion, we find that the Respondent did not violate
section 7116(b)(1) and (2) of the Statute because Wright's
statement to Assistant Chief Gilmore did not constitute
interference, restraint, or coercion of employee Car