34:0834(140)CA - - Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec CA - - v34 p834

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[ v34 p834 ]
34:0834(140)CA
The decision of the Authority follows:


34 FLRA No. 140

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

OGDEN AIR LOGISTICS CENTER

HILL AIR FORCE BASE, UTAH

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 1592

(Charging Party/Union)

7-CA-80186

DECISION AND ORDER

February 14, 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 decision of the Administrative Law Judge issued in the above-entitled proceeding. The Respondent did not file exceptions nor an opposition to the General Counsel's exceptions.

The complaint, as amended, alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by placing two counseling reprimands in a Union steward's personnel file. The amended complaint further alleges that as a result of statements made by the Union steward's supervisor, the Respondent interfered with, restrained, and coerced employees in the exercise of their rights under section 7102 of the Statute in violation of section 7116(a)(1) of the Statute.

The Judge concluded that the Respondent violated section 7116(a)(1) and (2) of the Statute by placing the reprimands in the Union steward's personnel file and recommended that the Respondent be ordered to take appropriate remedial action. For the reasons which follow, we agree with the Judge's conclusion that the Respondent violated section 7116(a)(1) and (2) of the Statute by placing two reprimands in the personnel file. In addition, we find that the Respondent violated section 7116(a)(1) when the supervisor told the Union steward "that she is acting as a Union steward at all times on the job and cannot discuss management rights with employees." Judge's Decision at 5.

II. Background and Administrative Law Judge's Decision

On November 25, 1987, Union steward Janice White overheard the Union president and vice president discussing a message "that had been received in the maintenance department[.]" Judge's Decision at 3. The message stated that 3 hours of administrative leave would be granted on Friday, November 27, to employees who were not "mission essential." Id. The Union vice president told White that it was "alright (sic) for her to talk" about the administrative leave because other employees were aware of it. Id. When she returned to the work site, White told co-workers about the 3 hours of administrative leave.

On November 27, 1987,(*) some of the employees in White's work area asked their supervisor, Kim Olson, whether they would be getting administrative leave that day. During the conversation, Olson learned that White had told co-workers about the administrative leave. Id. at 4.

In a private conversation, Olson asked White why she was telling her co-workers they would receive administrative leave. White told Olson that "she had been told that in the Union office[.]" Id. Olson informed White that early dismissals were up to management and "telling co-workers would result in disruptions." Id.

Olson later gave White a document entitled "Counseling on Improper Rights of a Union Steward." The counseling document stated, among other things, that "'White (was) using her position as a Union Steward, and receiving privileged information from a "Profs" note, sent to Managers regarding Administrative Leave used Managements [sic] rights.'" Id. Further, the document stated that "management has the right to determine when time off would be given and cannot have Union representatives giving such information to employees." Id.

When discussing the counseling document, Olson told White that "he was especially concerned about statements about management rights made by White to other employees because she is a Union steward and other employees pay more attention to her." Id. at 5. White told Olson that she was acting as a co-worker, and Olson replied that "she is acting as a Union steward at all times on the job and cannot discuss management rights with employees." Id. The employees in the off-base packing section, where White and the employees with whom White discussed administrative leave worked, were released early on administrative leave on November 27 by Olson's supervisor.

Subsequently, an Agency Labor Relations Specialist advised Olson to revise the counseling document because the first document looked as if Olson "was picking on Ms. White as a Union representative[.]" Id. On January 8, 1988, Olson gave White a revised document, which stated that White had "informed co-workers that they would receive three hours of administrative leave and that release of this type of information before management had assessed the work load could be disruptive to the workforce." Id.

The Judge found that the Respondent violated section 7116(a)(1) and (2) of the Statute. The Judge determined that the counseling documents were motivated by White's Union activity. The Judge noted that although the references to the Union were omitted from the second counseling document on the advice of an Agency Labor Relations Specialist, the second document concerned the same incident as the first document. The Judge concluded that it was "made clear" to White that "she was being punished for disseminating information she got from Union sources." Judge's Decision at 6. The Judge concluded, therefore, that the Respondent reprimanded White for her Union activities in violation of section 7116(a)(1) and (2). The Judge did not address the allegation in the complaint that the Respondent violated section 7116(a)(1) of the Statute when Olson told White "that she is acting as a Union steward at all times on the job and cannot discuss management rights with employees." Id. at 5.

III. Exceptions

The General Counsel excepts to the Judge's failure to find that Olson's statement to White "that she is acting as a Union Steward at all times on the job and cannot discuss management rights with employees[,]" violated section 7116(a)(1) of the Statute. The General Counsel asserts that the Judge should have concluded that Olson's statement interfered with White's protected activity and, therefore, violated section 7116(a)(1). The General Counsel asserts that "Olson's oral remarks that singled White out as a steward were as coercive as his written entries in her personnel file[.]" General Counsel's Brief at 4. Further, the General Counsel excepts to the Judge's failure to recommend that the Authority order the Respondent to cease and desist from telling unit employees that they are always acting as Union stewards on the job and cannot discuss management rights with other employees. Id.

IV. Analysis and Conclusions

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings made by the Judge at the hearing and find that no prejudicial error was committed. We affirm those rulings. We agree with the Judge that the Respondent violated section 7116(a)(1) and (2) of the Statute by placing two counseling reprimands in White's personnel file for her action in telling employees about a prospective grant of administrative leave. For the following reasons, we also find that Respondent violated section 7116(a)(1) of the Statute when Olson told White "that she is acting as a Union steward at all times on the job and cannot discuss management rights with employees." Judge's Decision at 5.

Under section 7102 of the Statute, an employee has the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal. An agency's interference with this right violates section 7116(a)(1) of the Statute. Marine Corps Logistics Base, Barstow, California, 33 FLRA 626, 637 (1988) (Marine Corps Logistics Base), petition for review dismissed sub nom. Boyce v. FLRA, No. 88-7524 (9th Cir. order Mar. 23, 1989). The standard for determining whether a management statement violates section 7116(a)(1) is an objective one. The question is whether, under the circumstances, the statement could reasonably tend to coerce or intimidate the employee or whether the employee could reasonably have drawn a coercive inference from the statement. Id. Although the circumstances surrounding the making of the statement are taken into consideration, the standard is not based on the subjective perceptions of the employee or on the employer's intent. Rather, objective standards must be used. Department of the Army Headquarters, Washington, D.C., and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1124-25 (1987); Bureau of Engraving and Printing, 28 FLRA 796, 803 (1987).

Consistent with Marine Corps Logistics Base, we will examine the circumstances presented in this case to determine whether Olson's statement to White--"that she is acting as a Union steward at all times on the job and cannot discuss management rights with employees"--could reasonably tend to interfere with, restrain, or coerce White, or any other employee, in exercising a right protected under section 7102.

In examining the circumstances of this case, we first note that Olson made the statement at issue while unlawfully giving White a counseling document for disseminating the administrative leave information. Judge's Decision at 6. Additionally, Olson specifically told White that he was concerned about her statements to other employees because she was a Union steward. Olson rejected White's assertions that as an employee she could speak to co-workers about any subject and told her that she was always acting as a steward on the job and could not discuss management rights. Id. at 5.

In these circumstances, we conclude that Olson's statement to White that she could not discuss management rights with employees because of her position as a Union steward violated her right under section 7102 to assist a labor organization by acting as a Union representative. Given the context of Olson's statement, White, as well as other employees, could reasonably conclude that an employee who is, or is acting as, a Union representative would incur management's disapproval, and possibly disciplinary action, for discussing workplace issues with employees. Accordingly, Olson's statement could tend to discourage White and other employees from becoming Union stewards or otherwise assisting the Union.

Moreover, Olson's statement could reasonably tend to interfere with, restrain, and coerce White and other employees in discussing conditions of employment and other matters concerning the workplace. Such topics, which often involve managements' rights, arise frequently in connection with a labor organization's statutory obligation to represent employees. Olson's attempt to restrict such discussion violates employees' protected rights under section 7102 because employees could be discouraged from exercising their right to form, join, or assist a labor organization freely and without fear of penalty or reprisal.

In these circumstances, we conclude that Olson's statement interfered with, coerced, and restrained employees in the exercise of their rights to assist a labor organization and act as a representative for a labor organization under section 7102. We conclude, therefore, that Olson's statement violates section 7116(a)(1) of the Statute. See Nuclear Regulatory Commission, 28 FLRA 820, 830-31 (1987) (manager's statement to employee that the "front office" did not approve of the employee's union activities restrained the employee in the exercise of protected rights); Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956, 968-69 (1985) (manager's statements that employee was not recommended for a job because of the employee's union position interfered with the employee's protected rights because the logical conclusion to be drawn was that assignment to a desirable detail would be denied solely because the employee was a union representative).

We have considered the Judge's Decision, the exceptions, and the entire record and adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1) and (2) of the Statute by placing in Union steward Janice White's personnel file two counseling documents for her action in telling employees about a prospective grant of administrative leave. We further conclude that the Respondent, through its agent, violated section 7116(a)(1) of the Statute by the statement made to White that "she is acting as a Union steward at all times on the job and cannot discuss management rights with employees."

V. 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 Ogden Air Logistics Center, Hill Air Force Base, Utah shall:

1. Cease and desist from:

(a) Discriminating against Ms. Janice White, or any other employee, because of her Union activities.

(b) Telling Ms. Janice White, or any other employee, that she is acting as a Union steward at all times on the job and cannot discuss management rights with employees.

(c) In any like or related manner, interfering with, restraining, or coercing 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 Federal Service Labor-Management Relations Statute:

(a) Forthwith remove the January 8, 1988, entry maintained in Ms. Janice White's 971 file, entitled "Counseling for Disrupting the Work Force."

(b) Post at its 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 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing within 30 days from the date of this Order as to what steps have been taken to comply.



NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discriminate against Ms. Janice White, or any other employee, because of her Union activities.

WE WILL NOT tell Ms. Janice White, or any other employee, that she is acting as a Union steward at all times on the job and cannot discuss management rights with employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL FORTHWITH remove the January 8, 1988, entry maintained in Janice White's 971 file, entitled "Counseling for Disrupting the Work Force."

__________________________________
(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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 844-5224.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ We note that in number 7 of his Findings, the Judge inadvertently used the date "March 27" instead of November 27.