38:0567(52)CA - - Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, CA and IAM Lodge 739 - - 1990 FLRAdec CA - - v38 p567
[ v38 p567 ]
The decision of the Authority follows:
38 FLRA No. 52
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE NAVY
NAVAL AVIATION DEPOT
NAVAL AIR STATION ALAMEDA
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
LODGE 739, AFL-CIO
DECISION AND ORDER
November 29, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding in Case No. 9-CA-80302 that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by telling an employee that there is no union representation on weekends and by imposing an overly broad rule prohibiting any union activity on weekends. There were no exceptions to this finding.
The Judge further found, in Case No. 9-CA-80531, that the Respondent violated section 7116(a)(1), (2) and (4) of the Statute when it suspended an employee in retaliation for seeking union assistance, for participating in the filing of an unfair labor practice charge in Case No. 9-CA-80302, and for giving a statement to the Authority concerning that unfair labor practice charge. The Respondent filed exceptions to this portion of the Judge's decision. The General Counsel filed an exception to the decision and an opposition to the Respondent's exceptions.
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 those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings and conclusions, and recommended order as modified.(*)
Among other things, the Respondent asserts that the Judge erred in his conclusion that the General Counsel had established a prima facie case. Specifically as to the alleged violation of section 7116(a)(4) of the Statute, according to the Respondent, the General Counsel did not establish that the Respondent's agent had knowledge of the filing of the unfair labor practice charge at the time the disciplinary action was instituted.
In effect, the Respondent takes issue with the Judge's credibility resolution. The incident that led to the disciplinary action occurred April 9, 1988. The unfair labor practice charge was mailed on April 19 to the Respondent and to the Authority's Regional Office; it was received in the Regional Office on April 20. Despite the supervisor's statement that he did not know that the charge had been filed at the time he initiated the disciplinary action on April 26, the Judge found that the General Counsel had established a prima facie case. The Judge discussed the timing, noting that "[t]he delay in discipline until after [the disciplined employee] had gone to the FLRA and sought . . . its assistance . . . sticks out like a sore thumb." ALJ Decision at 9. He also noted that it did not appear that any discipline was anticipated until after the charge had been filed. Id. at 9-10. In all the circumstances, the Judge found that "the proposal of discipline and its being carried out were in retaliation for the filing of an unfair labor practice charge and for assisting in the processing of that charge." Id. at 10. Thus, the Judge implicitly discredited the supervisor's statement that he did not know of the filing. We note in this regard that the Judge specifically discredited the supervisor in regard to his version of the incident giving rise to the discipline. The Judge credited the version of the disciplined employee, his Union steward, and others who testified in the employee's behalf.
The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 345, 346 (1990).
Moreover, it is clear that the Respondent violated section 7116(a)(2) of the Statute. The employee was disciplined in part for seeking the assistance of his Union representative on April 9. The Respondent did not specifically except to the finding of a section 7116(a)(2) violation, and the Judge did not separate out the section 7116(a)(2) allegation in his discussion. In addition, the elements establishing that violation clearly are present. Thus, in finding that the General Counsel met its burden of proof, the Judge noted that the protected activity of seeking union assistance, as well as filing the charge, "were plainly established on the record." ALJ Decision at 9. The Judge found that the supervisor's "disdain for the union is revealed by his actions on April 9," thereby establishing anti-union animus. Id. at 10. And in this instance, the Respondent's knowledge of the protected activity before the imposition of discipline is clearly established because the disciplining supervisor is the same individual who denied the employee permission to seek union help and then observed his meeting with his steward.
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Authority hereby orders that the Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California shall:
1. Cease and desist from:
(a) Enforcing overly broad rules prohibiting any protected activity on weekends.
(b) Telling its employees that there is no union representation on weekends.
(c) Suspending without pay Walter Mitchell based on his participation in the filing of unfair labor practice charges with the Federal Labor Relations Authority, for his having sought union assistance and for giving a statement concerning the unfair labor practice charge to an agent of the Federal Labor Relations Authority.
(d) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmation action in order to effectuate the purposes and policies of the Statute:
(a) Make whole employee Walter Mitchell for any loss of pay due to his two-day suspension.
(b) Remove any record of the two-day suspension from the personnel file of employee Walter Mitchell and restore to him any right or privilege he may have lost as a result of such disciplinary action.
(c) Post at its Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California 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 to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103, 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 HEREBY NOTIFY EMPLOYEES THAT:
WE WILL NOT enforce an overly broad rule concerning protected activity on weekends.
WE WILL NOT tell our employees that there is no union representation on weekends.
WE WILL NOT suspend without pay Walter Mitchell based on his participation in protected activity and on his participation in the filing of unfair labor practice charges with the Federal Labor Relations Authority, obtaining union assistance and for giving a statement to an agent of 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 assured them by the Statute.
WE WILL make employee Walter Mitchell whole for any loss of pay due to his two-day suspension.
WE WILL remove any record of the two-day suspension from the personnel file of employee Walter Mitchell and restore to him any right or privilege he may have lost as a result of such disciplinary action.
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 IX, whose address is: 901 Market Street, Suite 220, San Francisco, CA, and whose telephone number is: (415) 995-5000.
(If blank, the decision does not have footnotes.)
*/ The General Counsel excepted to the portion of the Judge's recommended Order requiring that the Notice be signed by "the Commander, or a designee." The Authority has held that notices shall be signed by an official designated by the Authority rather than one determined by the Respondent. U.S. Office of Personnel Management, Washington, D.C., 37 FLRA 784 (1990); Department