San Antonio Air Logistics Center (AFLC), Kelly Air Force Base, Texas (Respondent) and American Federation of Government Employees, Local 1617, AFL-CIO (Labor Organization)
[ v05 p193 ]
05:0193(24)CA
The decision of the Authority follows:
5 FLRA No. 24
SAN ANTONIO AIR LOGISTICS CENTER
(AFLC), KELLY AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1617
Labor Organization
Case No. 6-CA-460
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS,
(5 CFR 2423.29), AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE SAN ANTONIO AIR LOGISTICS CENTER
(AFLC), KELLY AIR FORCE BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, MR. WAYMOND BROWN,
OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT AS A UNION STEWARD
TO AID AND ASSIST UNIT
EMPLOYEES IN FILING AND PROCESSING GRIEVANCES FREELY AND WITHOUT FEAR
OF PENALTY OR REPRISAL.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR 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 STATUTE:
(A) POST AT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR
FORCE BASE, TEXAS,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED
BY THE COMMANDER OF THE
SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, 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. THE COMMANDER
SHALL TAKE REASONABLE STEPS 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 OF REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, IN
WRITING, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., FEBRUARY 17, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY
NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, OR DISCOURAGE, BY IMPLIED THREATS, OR
OTHERWISE, MR. WAYMOND BROWN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT AS A UNION STEWARD TO AID AND ASSIST UNIT EMPLOYEES IN FILING AND
PROCESSING GRIEVANCES, FREELY AND WITHOUT FEAR OF PENALTY.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 VI,
WHOSE ADDRESS IS: BRYAN & ERVAY STREET, ROOM 450, OLD POST OFFICE
BUILDING, DALLAS, TEXAS, 75221, AND WHOSE TELEPHONE NUMBER IS: (214)
767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SUSAN E. JELEN, ESQUIRE
FOR THE GENERAL COUNSEL
MAJOR LEWIS G. BREWER, ESQUIRE
FOR THE RESPONDENT
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
7101, ET. SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED.
REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART
2411, ET. SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON MARCH 14, 1980, BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
(HEREINAFTER CALLED THE UNION OR AFGE), A COMPLAINT AND NOTICE OF
HEARING WAS ISSUED ON MAY 28, 1980, BY THE REGIONAL DIRECTOR FOR REGION
VI, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS, TEXAS. THE COMPLAINT
ALLEGES IN SUBSTANCE, THAT THE SAN ANTONIO AIR LOGISTICS CENTER, (AFLC),
KELLY AIR FORCE BASE, TEXAS, (HEREINAFTER CALLED THE RESPONDENT OR
AFLC), VIOLATED SECTION 7116(A)(1) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE STATUTE OR
ACT), BY THREATENING TO REPLACE UNIT EMPLOYEES WITH MILITARY PERSONNEL
IF SUCH UNIT EMPLOYEES DID NOT CURTAIL THEIR UNION ACTIVITIES.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 7, 1980, IN SAN
ANTONIO, TEXAS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD,
TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. THE PARTIES SUBMITTED
POST-HEARING BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF A NUMBER OF EMPLOYEES,
INCLUDING THE POLICE DEPARTMENT, AT KELLY AIR FORCE BASE. MR. DANNY
SPEED, WHO IS THE UNION'S CHIEF STEWARD FOR THE ENTIRE UNIT APPOINTED
MR. WAYMOND BROWN TO BE THE CHIEF STEWARD FOR THE POLICE DEPARTMENT
WHICH WAS RESPONSIBLE FOR SECURITY AT KELLY AIR FORCE BASE. IN HIS
CAPACITY AS CHIEF STEWARD FOR THE POLICE DEPARTMENT, MR. BROWN
SUPERVISED THE STEWARD AND ALTERNATE STEWARD ON EACH OF THE FOUR SHIFTS
AT THE AIR FORCE BASE. MR. PAUL SACHO, A POLICEMAN, WAS THE SECOND
SHIFT STEWARD. ACCORDING TO MR. BROWN, MR. SACHO WAS A VERY
CONSCIENTIOUS AND ENERGETIC STEWARD WHO HAD FILED NUMEROUS GRIEVANCES
AND COMPLAINTS ON BEHALF OF UNIT EMPLOYEES WITH THE RESPONDENT,
INSPECTOR GENERAL AND EEO COMMISSION.
ACCORDING TO THE CREDITED TESTIMONY OF MR. BROWN, ON FEBRUARY 14,
1980, HE WAS CALLED FROM HIS POST OF DUTY AND INSTRUCTED TO PROCEED TO
THE OFFICE OF MAJOR CARROLL JACKSON, RESPONDENT'S CHIEF OF SECURITY
POLICE. UPON ENTERING MAJOR JACKSON'S OFFICE, MR. BROWN WAS INFORMED
THAT MAJOR JACKSON WANTED TO BRING THE ACTIONS OF UNION STEWARD SACHO TO
MR. BROWN'S ATTENTION. MAJOR JACKSON THEN WENT ON TO STATE THAT MR.
SACHO WAS TAKING ADVANTAGE OF THE "WEAKER ONES" ON THE SECOND SHIFT BY
SOLICITING GRIEVANCES. MAJOR JACKSON FURTHER INFORMED MR. BROWN THAT
MR. SACHO'S UNION ACTIVITIES HAD UPSET THE SUPERVISOR ON THE SECOND
SHIFT BECAUSE THE EMPLOYEES WERE LISTENING TO MR. SACHO'S COUNSELING AND
ADVICE. WHEN MR. BROWN INFORMED MAJOR JACKSON THAT HE, MR. BROWN,
CONSIDERED MR. SACHO AN ENERGETIC AND CONSCIENTIOUS WORKER AND THAT THE
GRIEVANCES BEING FILED WERE LEGITIMATE AND NOT THE PRODUCT OF MR.
SACHO'S SOLICITATIONS, MR. JACKSON STATED THAT IN THE INTEREST OF "THE
UNION AND MANAGEMENT, IT WOULD BE BEST IF "'BROWN'" COULD PULL MR.
SACHO'S COAT TAIL AND CALM HIM DOWN BECAUSE HIGHER AUTHORITY - HIGHER
HEADQUARTERS WAS TAKING A LOOK AT US DOWN HERE AND THEY PROBABLY WERE
GOING TO REPLACE US WITH MILITARY". FURTHER, ACCORDING TO THE TESTIMONY
OF MR. BROWN, MAJOR JACKSON CITED AIR FORCE REGULATION 26-1 WHICH DEALS
WITH THE REPLACEMENT OF CIVILIAN POLICE BY MILITARY PERSONNEL WHEN A
POSITION BECOMES VACANT. THIS WAS THE FIRST TIME THAT MR. BROWN HEARD
OF THE REGULATIONS. THE MEETING ENDED WITH MR. BROWN REITERATING HIS
OPINION OF MR. SACHO. /1/
DISCUSSION AND CONCLUSIONS
HAVING CREDITED MR. BROWN WITH RESPECT TO THE FEBRUARY 14, 1980,
CONVERSATION, THE SOLE ISSUE REMAINING FOR DECISION IS WHETHER MAJOR
JACKSON'S ACTION, I.E., REQUESTING THE UNION TO PULL MR. SACHO'S COAT
TAILS AND STATING AT THE SAME TIME THAT THERE WAS A POSSIBILITY THAT
CIVILIAN POLICEMEN MIGHT BE REPLACED BY MILITARY PERSONNEL, CONSTITUTED
A VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.
SECTION 7102 OF THE STATUTE GIVES EMPLOYEES THE RIGHT TO JOIN, FORM
OR ASSIST ANY LABOR ORGANIZATION FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL. SUCH RIGHT INCLUDES THE RIGHT TO ACT FOR A LABOR ORGANIZATION
IN THE CAPACITY OF A REPRESENTATIVE AND THE RIGHT, IN SUCH CAPACITY, TO
PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO HEADS OF AGENCIES AND
OTHER OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.
IN THE INSTANT CASE, MAJOR JACKSON'S REQUEST TO PULL MR. SACHO'S COAT
TAILS CERTAINLY WAS AN ATTEMPT BY HIM TO HAVE THE CHIEF UNION STEWARD
CURTAIL THE PROTECTED ACTIVITIES OF ANOTHER STEWARD, MR. SACHO.
COUPLING SUCH REQUEST WITH A STATEMENT INDICATING THAT FAILURE TO DO SO
COULD RESULT IN THE REPLACEMENT OF UNIT CIVILIAN POLICEMEN BY MILITARY
PERSONNEL NOT ONLY EMPHASIZES THE REQUEST BUT MAKES IT CLEAR TO UNIT
EMPLOYEES THAT FAILURE TO ABIDE BY THE REQUEST COULD RESULT IN THE LOSS
OF THEIR JOBS. ACCORDINGLY, I FIND THAT RESPONDENT, BY VIRTUE OF THE
REQUEST AND STATEMENT ISSUED BY MAJOR JACKSON TO CHIEF UNION STEWARD
BROWN ON FEBRUARY 14, 1980, VIOLATED SECTION 7116(A)(1) OF THE STATUTE,
WHICH PROHIBITS INTERFERENCE WITH THE SECTION 7102 RIGHTS AND ACTIVITIES
ACCORDED EMPLOYEES.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE
STATUTE, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ISSUE
THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C 7118(A)(1)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. SEC. 2423.29(B)(1),
THE AUTHORITY HEREBY ORDERS THAT THE SAN ANTONIO AIR LOGISTICS CENTER
(AFLC), KELLY AIR FORCE BASE, TEXAS SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR DISCOURAGING, BY IMPLIED THREATS, OR
OTHERWISE, MR. WAYMOND BROWN,
OR ANY OTHER EMPLOYEE, FROM EXERCISING THE RIGHT AS A UNION STEWARD
TO AID AND ASSIST UNIT
EMPLOYEES IN FILING AND PROCESSING GRIEVANCES, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL.
(B) IN ANY LIKE TO RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR 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 STATUTE;
(A) POST AT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR
FORCE BASE, TEXAS,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED
BY THE COMMANDER OF THE
SAN ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE, AND
SHALL BE POSTED AND
MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN
BOARDS AND OTHER PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.
REASONABLE STEPS SHALL BE TAKEN
TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL FEDERAL LABOR RELATIONS AUTHORITY IN WRITING
WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY
HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 3, 1980
WASHINGTON, D.C.
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, OR DISCOURAGE, BY IMPLIED THREATS, OR
OTHERWISE, MR. WAYMOND BROWN, OR ANY OTHER EMPLOYEE, FROM EXERCISING THE
RIGHT AS A UNION STEWARD TO AID AND ASSIST UNIT EMPLOYEES IN FILING AND
PROCESSING GRIEVANCES, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THE STATUTE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 QUESTION 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 VI,
WHOSE ADDRESS IS: ROOM 450, DOWNTOWN POST OFFICE STATION, BRYAN & ERVAY
STREET, DALLAS, TEXAS 75221.
--------------- FOOTNOTES$ ---------------
/1/ MAJOR JACKSON, WHO DENIED MAKING THE STATEMENTS ATTRIBUTED TO
HIM, COULD NOT REMEMBER HAVING A SPECIFIC MEETING WITH MR. BROWN ON
FEBRUARY 14, 1980. HOWEVER, HE ACKNOWLEDGED MEETING FREQUENTLY DURING
SUCH TIME FRAME WITH MR. SPEED AND MR. BROWN, JOINTLY AND SINGULARLY.
HE FURTHER ACKNOWLEDGED DISCUSSING AFR 26-1 AND A COMPLAINT FROM A UNIT
EMPLOYEE CONCERNING MR. SACHO'S ALLEGED ACTION IN SOLICITING GRIEVANCES,
BUT DENIED THAT THE THE TWO SUBJECTS WERE EVER TIED TOGETHER IN A
CONVERSATION. WITH RESPECT TO AFR 26-1, HE CLAIMS THAT HE RAISED IT
WITH THE STEWARDS IN ORDER TO SQUELCH ANY POSSIBLE RUMORS ABOUT ITS
APPLICATION. AS TO THE GRIEVANCE COMPLAINT, MAJOR JACKSON STATED THAT
HE MERELY GAVE IT TO MR. BROWN FOR ANY ACTION HE MAY HAVE DEEMED
APPROPRIATE. LASTLY, MAJOR JACKSON ACKNOWLEDGED THAT HIS SUPERVISOR WAS
HAVING A PROBLEM WITH MR. SACHO'S CONDUCT AS A UNION STEWARD AND THAT HE
HAD GIVEN A SIGNED STATEMENT TO AN AGENT OF THE AUTHORITY WHEREIN IT IS
STATED "I DO NOT RECALL USING THE PHRASE "'PULL SACHO'S COAT TAILS'" BUT
PERHAPS MY REMARKS MAY HAVE BEEN INTERPRETED SO."