34:0956(158)CA - - Air Force, Scott AFB, IL and NAGE Local R7-23, SEIU - - 1990 FLRAdec CA - - v34 p956
[ v34 p956 ]
The decision of the Authority follows:
34 FLRA No. 158
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
February 23, 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 to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The complaint alleged that, as a result of three statements made by a supervisor in conversations with a unit employee, the Respondent interfered with, restrained, and coerced employees in the exercise of rights under section 7102 of the Federal Service Labor-Management Relations Statute (the Statute) in violation of section 7116(a)(1) of the Statute. The Judge found that the Respondent did not commit the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed.
The General Counsel filed exceptions to the Judge's decision. The Respondent filed an opposition to the General Counsel's exceptions. The National Association of Government Employees, Local R7-23, SEIU, AFL-CIO (the Charging Party or the Union) filed untimely exceptions that have not been considered.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. However, contrary to the Judge, we find that the Respondent violated section 7116(a)(1) of the Statute as a result of the supervisor's statements to the employee.
John Cissell is a bargaining unit employee in the Respondent's heat plant. Since 1986, Cissell has been the executive vice-president of the Union.
In 1985, a grievance was filed on behalf of Cissell and unit employee Jerome Rakers, both of whom had applied for a position in the Respondent's waste and water section and were not selected. In settlement of the grievance, management and the Union agreed that Cissell and Rakers would be given priority referral interviews for the next available WG-10 positions. The next available WG-10 position was in the heat shop. Priority referral, also known as priority consideration, means that in filling a position, management will first consider an employee for the position without using competitive procedures.
In 1986, Charles Affolter, the selecting official, did not select either Cissell or Rakers for a WG-10 position for which they had applied. The Union then filed another grievance which went to arbitration. Pursuant to the arbitration award, the Union and the Respondent agreed to give Cissell and Rakers priority consideration for the next available WG-10 position for which they were qualified. If either Cissell or Rakers were to be hired for the position, the other would retain his priority status. Judge's Decision at 2.
The next available WG-10 position was in the heat plant and became available in April 1987. Affolter, who at that time was Cissell's supervisor, was again the selecting official for the position. Affolter interviewed Cissell and Rakers, and selected Rakers for the position.
The allegedly unlawful statements were made by Affolter in conversations with Cissell that occurred shortly after Affolter did not select Cissell for the position in the heat plant. The following accounts of the statements reflect the Judge's determinations crediting Cissell's testimony at the hearing. No exceptions were filed to the Judge's credibility determinations.
B. The First Statement
The first relevant conversation occurred either on April 10 or April 17, 1987. Cissell approached Affolter at the plant and asked him about a question Affolter had asked regarding rotating shifts during his interview for the WG-10 job. In the course of responding to Cissell's question, Affolter told Cissell that he had not hired him because the job required shift work and Affolter was afraid that Cissell, as a Union official, would invoke that portion of the collective bargaining agreement granting Union officials the option of working day shifts. Cissell responded that he had told Affolter at the interview that he would accept shift work, and that by doing so, he thought he had made it clear that he did not intend to invoke that contract provision. Affolter said he was afraid that the Union would have invoked that provision in order to retain Cissell on the day shift. Cissell then suggested that he could have taken the rotating shift position until a similar day position, held by someone who was expected to be on extended sick leave, opened up. Affolter ended the conversation by saying that it was a shame that he had not had the same talk with Cissell during the interview. Id. at 3-4.
C. The Second Statement
The second conversation between Cissell and Affolter took place on or about April 29, 1987. At this time, Cissell still had priority status for a WG-10 position. Affolter told Cissell that he would not request authority to fill any WG-10 positions in his shop as long as Cissell had a priority referral, so that he would never have to hire Cissell for a WG-10 position. Affolter stated that he felt this way because, of the last six people he had hired, three of them were people he hired only because management had "made him take them." Id. at 4.
D. The Third Statement
The third conversation between Cissell and Affolter took place on May 2, 1987. During the course of the conversation, Affolter expressed dissatisfaction with another employee. Cissell reminded Affolter that Affolter had selected that employee over Cissell for a WG-10 position in 1986. Affolter told Cissell that Cissell probably would have been hired for that position if he had not been a priority referral. Affolter also told Cissell that it was nothing personal, "but you've got to understand the politics . . . between management and the Union[.]" Id. Affolter went on to tell Cissell that "I don't like for someone trying to tell me who I have to select[,]" and that "[y]ou . . . should have received priority referrals down at water and waste and not to the heat shop." Id.
III. Administrative Law Judge's Decision
Although the Judge credited Cissell's testimony as to all three conversations, he found that "[v]iewed in the circumstances surrounding the making of each of the alleged unlawful statements, and in their cumulative tendency, . . . they do not interfere with, restrain, or coerce any employee in the exercise of the rights granted by the Statute." Judge's Decision at 6.
With respect to the first statement, the Judge noted that Affolter's statement--that he did not select Cissell because the contractual provision entitling Cissell to switch to the day shift might be invoked--"arguably discouraged invocation of the provision and service as a union official on whose behalf the provision could be invoked." Id. The Judge stated that "[h]owever, not every attempted limitation of employees' protected activity violates the Statute. The question is whether the attempt should reasonably be understood as a denial or disparagement of the employee right, on the one hand, or, on the other hand, seeking of an accommodation between the employee right and the agency's right to manage efficiently and effectively." Id. at 7.
The Judge found that the entire conversation "shows that Affolter's expressed concern was that the person selected for the position continue to be available for rotating shift work." Id. The Judge noted that Cissell's response suggested "that he recognized Affolter's statement as seeking an accommodation[,]" and that "Affolter's closing response, stating that he wished they had had this conversation earlier, should have reinforced the idea that he was primarily interested in having the position covered." Id. The Judge concluded that "no employee would reasonably fear adverse consequences attached to the exercise of protected activity, or reasonably be tempted to turn away from collective activity, as a result of this conversation." Id.
With respect to the remaining statements, the Judge stated that their focus was Affolter's "dissatisfaction and frustration with employee selection restrictions placed on him by higher levels of management." Id. at 8. The Judge found that although Affolter expressed a bias against priority referrals, "Affolter did not say that he would block Cissell's promotion because Cissell's priority status arose from a grievance proceeding [n]or, viewed objectively, did his comments convey that impression." Id. The Judge noted that "Affolter expressly acknowledged the validity of Cissell's priority status by stating that it should have been applicable to [another] section." Id.
The Judge found that it would be a "strained interpretation" to conclude that Affolter's remarks could be viewed "as a threat of loss of promotional opportunities for engaging in and benefitting from protected activities." Id. The Judge concluded that "[t]aken in their entirety and in their context, which did not include unfair labor practices or expressions of anti-union animus, Affolter's remarks could not reasonably be taken to imply such a threat or any other coercion." Id. (emphasis in original).
Accordingly, the Judge found that the Respondent did not interfere with, restrain, or coerce any employee within the meaning of section 7116(a)(1). The Judge, therefore, recommended that the complaint be dismissed.
IV. Positions of the Parties
A. General Counsel's Contentions
The General Counsel agrees with the Judge's conclusion that not every attempted limitation of an employee's protected activity violates the Statute. However, as to Affolter's first statement, the General Counsel disagrees with the Judge's "analysis of the conversation, his portrayal of Affolter's statement and his application of the relevant case law to the factual context of the case." General Counsel's Brief at 3. The General Counsel contends that Affolter's remark did not constitute an accommodation between Cissell's right and the Agency's right to manage efficiently and effectively. According to the General Counsel, the remark was "merely an after-the-fact explanation of why [Affolter] did not give Cissell the promotion." Id.
The General Counsel argues that "a reasonable person would interpret Affolter's statement to mean that as long as an employee merely holds an official position within the Union, the employee will not be promoted by Affolter for a shift work job." Id. at 5. The General Counsel contends that Affolter's statement "was a flagrant, coercive remark that would reasonably chill any employee from participating in certain Union activity and/or invoking specific Union rights for fear of future economic loss[.]" Id. (emphasis in original).
The General Counsel asserts that by making the two remaining statements, "Affolter expressly made Cissell the object of his retaliation against Union-Management activity invoked by Cissell as was [Cissell's] right under the Statute." Id. at 8. The General Counsel contends that "[a]lthough Affolter may not have expressly stated that he would block Cissell's promotion because Cissell's priority status arose from a grievance proceeding, this can readily be inferred." Id. at 7. The General Counsel asserts that in view of the surrounding circumstances, "Affolter did not have to mention the Union or how Cissell obtained his priority referral" in order for an employee to reasonably construe Affolter's statements as coercive. Id. The General Counsel concludes that Affolter's statements violated section 7116(a)(1) because they would make an employee "think twice about asserting his rights and benefitting from such assertions if management is going to defeat the benefits gained" through that exercise of protected rights. Id. at 8.
B. Respondent's Contentions
The Respondent argues that Affolter's first statement was "nothing more than a recitation of the reasonable accommodation efforts undertaken to insure a balance between the employee['s] rights and the [A]gency's right to manage effectively." Respondent's Opposition at 3. The Respondent notes that "[t]he existence of the contractual provision" made it unnecessary "for Affolter to explain . . . that such was inconsistent with the needs of the position." Id. at 4. Alternatively, the Respondent argues that "under the totality of the circumstances," the statement was made in an informal setting and was not the type of statement that would chill "any reasonable employee . . . in the exercise of protected rights." Id. at 5.
As to the remaining statements, the Respondent contends that Cissell's interpretation of the statements was that Affolter was "doing nothing more than stating a general dissatisfaction with situations where he is told who he must select." Id. The Respondent also argues that the statements could not reasonably form the basis of a section 7116(a)(1) violation because: (1) "no union animus was expressed or implied"; (2) the setting was informal; and (3) "no attendant and/or contemporaneous unfair labor practices surround[ed] the utterances." Id. at 6.
We adopt the Judge's credibility resolutions. However, contrary to the Judge, we find that the Respondent violated section 7116(a)(1) of the Statute as a result of the three statements that Affolter made to Cissell.
The standard for determining whether management's statement or conduct violates section 7116(a)(1) is an objective one. The question is whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. 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); Bureau of Engraving and Printing, 28 FLRA 796 (1987). In order to find a violation of section 7116(a)(1), it is not necessary to find other unfair labor practices or to demonstrate union animus. United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 163 (1985); Department of the Air Force, 35th Combat Support Group (TAC), George Air Force Base, California, 4 FLRA 22, 29-30 (1980). While 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 intent of the employer. 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 (1987).
A. The First Statement
In the first statement at issue, Affolter told Cissell that he did not hire Cissell for a rotating shift position because he was afraid that Cissell or the Union would invoke a contract provision allowing Cissell, as a Union official, to switch to the day shift.
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). See, for example, Nuclear Regulatory Commission, 28 FLRA 820, 831 (1987) (management's statement to the employee that the front office does not approve of the employee's union activities restrained the employee in the exercise of her rights under section 7102 and, therefore, violated section 7116(a)(1)); Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956, 968-69 (1985) (Treasury Department) (agency's statements that it did not recommend the employee for the job due to the employee's union position interfered with the employee's section 7102 rights and violated section 7116(a)(1) 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).
The Judge found that Affolter's statement was an accommodation between management's right to manage effectively and the employee's right to engage in protected activity, and that, therefore, the statement did not interfere with, restrain, or coerce Cissell in the exercise of his rights under the Statute. The Judge relied on two cases in which the Authority found that the employees could not reasonably have drawn a coercive inference from their supervisors' statements because the statements represented such a lawful accommodation. In both Veterans Administration Medical Center, Leavenworth, Kansas, 31 FLRA 1161, 1170-71 (1988) (VAMC) and Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA 761, 764 (1985) (Scott Air Force Base), review denied mem. sub nom. National Association of Government Employees, Local R7-23 v. FLRA, No. 86-1011 (D.C. Cir. Dec. 10, 1986), the supervisors alerted the employees to a conflict between the agencies' ability to manage efficiently and the employees' right to engage in union activity, and discussed with the employees how that conflict could be accommodated.
In VAMC, the Authority, adopting the decision of the Administrative Law Judge, found that a supervisor's statement that the employee was rated low on his mid-term evaluation because of his use of official time for union activities did not violate section 7116(a)(1) of the Statute. In that case, the supervisor had told the employee that he was deficient in certain duties because he took too much official time when those duties should have been performed. In a subsequent conversation, the supervisor explained that the employee could not go on official time until after certain work was completed and, when that work was completed, permitted the employee to spend the rest of the day on union business. The Authority found that, under the circumstances, a reasonable employee would have understood that the supervisor was trying to reach an accommodation between the parties' respective rights; that is, he "was trying to encourage [the employee] to schedule his [u]nion activities so that he could also perform the [work]." VAMC, 31 FLRA at 1171.
Similarly, in Scott Air Force Base, the Authority held that the agency had not violated section 7116(a)(1) of the Statute when its supervisors stated to an employee, who was also a union president, that the employee was "spending too much time on union work and too little on the [agency's] work and that disciplinary action might be taken against him if he did not put more work into the . . . project." Scott Air Force Base, 20 FLRA at 764. The Authority noted the supervisors' prior efforts to reach an accommodation with the employee, the responses of the employee to management's efforts, the time-sensitive nature of the work to be done, and the lack of evidence of union animus. It was further noted that there was no evidence of a denial of any future requests for official time and that the employee had not been disciplined. In those circumstances, the Authority found that the supervisors were lawfully seeking an accommodation between the employee's and the agency's conflicting rights. Id. at 764-66.
The General Counsel argues that an "accommodation theory" is inapplicable to this case and that Affolter's statement reasonably tends to discourage employees from participating in union activities. General Counsel's Brief at 4. We agree with the General Counsel.
We find that Affolter's first statement to Cissell did not constitute an attempt at accommodation. At the time Affolter made his remark, he had already chosen someone else for the job. Therefore, there was no existing conflict for him to accommodate. Unlike the cases relied on by the Judge, Affolter expressed his concerns to Cissell only after he had made his hiring decision. Nothing in the record before us indicates that Affolter told Cissell during the interview or at some other time before the hiring decision was made of his concerns with the possible invocation of the contract provision or suggested ways to "accommodate" those concerns.
Although Affolter commented that it was a shame that he and Cissell had not had their conversation earlier, we do not view this remark as providing Cissell with sufficient guidance as to how he might avoid a similar result in the future. Rather, Affolter's statement as to why he did not select Cissell for the rotating shift position drew a direct connection between protected activity and Cissell's chance to be selected for a rotating shift position. Under these circumstances, we conclude that it is reasonable for a unit employee to interpret the statement to mean that Affolter would not consider hiring a Union official for shift work for fear that the contractual provision would be invoked, and that, therefore, an employee could never successfully compete for a job with rotating shifts so long as he was a Union official. As a result, the statement interfered with Cissell's section 7102 right to act as a representative of the Union and, therefore, violated section 7116(a)(1) of the Statute. See Veterans Administration, Washington, D.C. and Veterans Administration Medical Center and Regional Office, Sioux Falls, South Dakota, 23 FLRA 122, 124 (1986) (supervisor's interview questions concerning an employee's union position violated section 7116(a)(1) and did not constitute an attempt to reasonably accommodate the employee's protected rights and the agency's right to manage effectively because no conflict between those rights had arisen, and, therefore, no accommodation was needed); and Treasury Department, 19 FLRA at 969 (supervisor's statement violated section 7116(a)(1) by conveying the clear impression "that an employee's career opportunities would be limited in the future if an employee served the [u]nion in a representative capacity").
B. The Second and Third Statements
The second and third statements involve alleged interference with Cissell's right to engage in protected activity, namely, the negotiated grievance procedure.
Management interference with an employee's right to use the negotiated grievance procedure violates section 7116(a)(1). See Equal Employment Opportunity Commission, 24 FLRA 851, 855 (1986) (EEOC), affirmed sub nom. Martinez v. FLRA, 833 F.2d 1051 (D.C. Cir. 1987) (an employee's right to file and process grievances under a collective bargaining agreement is protected activity within the meaning of section 7102, and management's actions which tend to interfere with or restrain the exercise of such rights constitute unlawful interference in violation of section 7116(a)(1)). The right to use the negotiated grievance procedure includes the right to file and process grievances. Where an employee could reasonably have drawn a coercive inference from management's statement or tends to be coerced or intimidated by management's statement or conduct, the statement or conduct violates section 7116(a)(1). See, for example, EEOC (by alluding to the employee's use of the grievance system as a basis for his termination, the respondent violated section 7116(a)(1)); United States Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 200, 208 (1986) (agency's failure to comply with an arbitrator's award violated section 7116(a)(1) because it constituted an unlawful interference with the employee's section 7102 right to pursue a grievance); Social Security Administration, Baltimore, Maryland, 18 FLRA 249, 258 (1985) (supervisor's inquiry as to why the employee had filed a grievance and his statement that the employee is only hurting himself by filing a grievance violated section 7116(a)(1) because it tended to chill the employee in the exercise of his statutory right to process his grievance under the collective bargaining agreement).