14:0617(85)CA - AFGE Local 2000 and William R. Massengale -- 1984 FLRAdec CA
[ v14 p617 ]
The decision of the Authority follows:
14 FLRA No. 85 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2000, AFL-CIO Respondent and WILLIAM R. MASSENGALE Charging Party Case Nos. 6-CO-37 6-CO-38 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices as alleged in the consolidated complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge found further that the Respondent had not engaged in certain other unfair labor practices alleged in the consolidated complaint, and recommended dismissal of those portions of the consolidated complaint. Thereafter, the General Counsel filed exceptions and a supporting brief with respect to certain portions of the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. /1A/ ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the American Federation of Government Employees, Local 2000, AFL-CIO shall: 1. Cease and desist from: (a) Threatening to "get" or to "get rid of" non-members of the Union. (b) In any like or related manner interfering with, restraining, or coercing any unit employee in the exercise by the employee of any right under 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 its business offices and its normal meeting places, including all places where notices to members and unit employees represented by Local 2000 are customarily posted, 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 an appropriate official of the American Federation of Government Employees, Local 2000, AFL-CIO, and shall be posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and to other employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (b) Submit appropriate signed copies of said Notices to the Commander of Barksdale Air Force Base for posting in conspicuous places where unit employees are located, where they shall be maintained for 60 consecutive days from the date of posting. (c) 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. IT IS FURTHER ORDERED that the remaining allegations of the consolidated complaint in Case Nos. 6-CO-37 and 6-CO-38 be, and they hereby are, dismissed. Issued, Washington, D.C., May 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES THAT: WE WILL NOT threaten to "get" or to "get rid of" non-members of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any unit employee in the exercise by the employee of any right under the Federal Service Labor-Management Relations Statute. (Union) 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 its provisions, they may communicate directly with the Regional Director, Region VI, Federal Labor Relations Authority whose address is: Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas, and whose telephone number is: (214) 767-4996. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos. 6-CO-37, 6-CO-38 Mr. Carl W. Holt Ms. Opal B. Adams For the Respondent Elizabeth A. Martinez, Esquire Susan Jelen, Esquire For the General Counsel Before: WILLIAM B. DEVANEY Administrative Law Judge DECISION Statement of the Case This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 6 U.S.C. 7101, et seq., /1/ and the Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq., was initiated by a charge in Case No. 6-CO-37, filed on May 18, 1981 (G.C. Exh. 1(a)), which alleged violations of Secs. 16(b)(1), (2) and (5) of the Statute by American Federation of Government Employees, Local 2000, AFL-CIO (hereinafter referred to as "Union") as the result of statements made by the then Chief Steward of the Union, Mr. Franks, in a conversation between Mr. Franks and Mr. William Massengale, and other employees, all of whom were non-members of the Union, outside the maintenance office on, or about, April 25, 1981; and by a charge in Case No. 6-CO-38 (G.C. Exh. 1(d)), also filed on May 18, 1981, which alleged violations of Secs. 16(b)(1), (2) and (5) of the Statute by the Union as the result of statements made at a Union meeting by the President of the Union to non-members of the Union. On July 27, 1981, an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing issued (G.C. Exh. (g)). The Consolidated Complaint alleged violation of Sec. 16(b)(1) only and the Notice of Hearing set the hearing for October 26, 1981, at a place to be determined. On August 27, 1981, an order rescheduling the hearing for October 28, 1981, issued (G.C. Exh. 1(i)) pursuant to which a hearing was duly held before the undersigned on October 28, 1981, in Shreveport, Louisiana. All parties were represented at the hearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues involved, and were afforded opportunity to present oral argument. At the close of the hearing, November 30, 1981, was fixed as the date for mailing post-hearing briefs which time was subsequently extended for good cause shown, and specifically delay in receipt of the transcript, to December 18, 1981. Counsel for General Counsel timely mailed a most helpful Brief, received on December 22, 1981, which has been carefully considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions: FINDINGS 1. The Union is the exclusive representative for employees in the bargaining unit covering all professional and non-professional civilian employees paid from appropriated funds of Barksdale Air Force Base and on-base tenant organizations. The 917th Tactical Fighter Group Reserve Unit (hereinafter referred to as the "917th") is a tenant organization. 2. At all times material, William Massengale, John Tomasak, Myna Babb and Joe Linder were civilian technicians employed as crew chiefs by the 917th. Crew chiefs are responsible for the maintenance and flight preparation of aircraft. The named individuals, while included in the bargaining unit represented by the Union, were not, and never had been, members of the Union. 3. In April, 1981, the 917th advised Ms. Opal B. Adams, President of the Union, that it had got the new A-10 aircraft and that the 917th would also operate a training school for the A-10 aircraft; that, because its mission had changed, it would have to change working hours in order to cover the pilots in training (Tr. 191). The Union requested impact and implementation negotiations and designated Mr. Carl W. Holt, National Representative, as its chief negotiator. On the Union's negotiating team was Mr. Jack E. Franks, Chief Steward and, also, a crew chief. 4. As a result of the ensuing negotiations, an agreement was reached by management and the Union's negotiating team (Res. Exh. 1) which, pursuant to the Union's procedures, was subject to ratification by the membership of the Union. 5. The change in hours consisted of establishing a Tuesday through Saturday tour of duty. The non-Union crew chiefs became aware of the impending change and on, or about April 25, 1981, Mr. William Massengale had a discussion with Mr. Jack Franks, about the schedule. /2/ This discussion took place outside the door of the maintenance office. Both Mr. Massengale and Mr. Franks subsequently left the employ of the 917th and neither testified at the hearing. Mr. Joe M. Linder, a crew chief, and Mr. John A. Tomasak, another crew chief, came by while the discussion between Messrs. Massengale and Franks was in progress. Mr. Linder testified that he heard the following: "Q. Now, what was Mr. Massengale asking? "A. Well, he was wanting to get some answers to some questions about our job, the way the union was representing us about the job and Mr. Franks was telling him that by being non-members, that the union didn't have to represent them. "Q. Do you recall anything more that he was saying? "A. Well, he-- Mr. Franks went ahead and told him if he wanted to have a say in what the union was doing, that he could go ahead and join the union and start paying his dues and then he would have a say on what the union was doing." (Tr. 96-97). Mr. Tomasak testified, in part, as follows: "Q. Do you recall what it was that Mr. Massengale was telling Mr. Franks? "A. He was discussing being represented by the union. "Q. Okay. Do you recall what Mr. Franks was stating to Mr. Massengale? "A. Well, like I said, the discussion got kind of heated and Bill Massengale was asking Jack Franks about being represented. And Jack Franks said, I don't give a damn about anybody who is not in the union. He said, as far as I'm concerned, all you son-of-a-bitches can go to hell. He said, you had the opportunity to join the union and be represented and if you don't, you can keep your damned mouth shut. He said, I represent the people who are in the union and pay dues and everybody else can go to hell. . . . . "Q. Did you say anything? "A. At that point I asked Jack Franks, I said, 'Does that mean if I am not in the union I can't be represented?' And he says, you're damned right. He says, I look out for myself. He says, I pay my dues and everybody else can go to hell. "Q. Now, did Mr. Massengale agree with this? "A. He said, that's not right. He has got the right to be represented. And Jack Franks says-- he said, hell no, not until you you (sic) pay for the right." (Tr. 52-54). On cross-examination, Mr. Tomasak testified, in part, as follows: "Q. Okay. Thank you. You said that you want-- I want to get this straight here. What right do you contend you were denied as a non-member? "A. Well, if we have a grievance or anything, we are supposed to be represented by the union. "Q. When were you denied representative of a grievance? "A. Well, I wasn't personally denied but during the contract, the schedule changes being brought up, we asked about filing a grievance and Jack Franks said it (sic) too late to file a grievance. "Q. What was the grievance on? "A. That we didn't have any say so on the schedule being drawn up. "Q. Can you explain that? I'm not following what you mean you didn't have any say so. "A. There were changes of working hours and the length of time we worked on each shift. "Q. You mean by that that you weren't allowed to sit in at the negotiating table? Is that what you're saying? "A. Yes, sir." (Tr. 61). . . . . BY MR. HOLT "Q. Do I understand you then, Mr. Tomasak, to say that you feel that you weren't being represented because non-members weren't (sic) at the negotiating table, is that essentially what you're saying? "A. None of the members-- none of the union members were there either. Not off the flight line. "Q. You mean-- "A. It affected our schedule and none of the people that it affected were there to negotiate and bargain. . . . . "A. There was one person there, Jack Franks, and the only reason he was there was because he was chief steward. It wasn't because he was off the flight line. "Q. Then is there a difference between Jack Franks being there-- if he is there as union steward, you mean that has nothing to do with him being an affected employee? Wasn't he affected? "A. It affected him favorably. That's why he was pushing for it because of the favorable part it would have on his life. "Q. Well, what was Franks' pushing for exactly? "A. One of the things he was pushing for was working on Saturday because his wife worked on Saturday and she was off Monday. And he wanted to work Saturday. "Q. Well, do you know who proposed this irregular work schedule, Mr. Tomasak? "A. Management I believe." (Tr. 64-66). 6. The non-Union crew chiefs, set forth in Paragraph 2, learned that a Union meeting was scheduled at which the work schedule changes were to be considered; /3/ one or more of them contacted Mr. Dan Weeks, shop steward, and asked him if they could attend the meeting and Mr. Weeks said yes. Accordingly, Massengale, Tomasak, Babb and Linder, all non-members, individually came to the Union meeting which had been called to ratify the negotiated agreement (Res. Exh. 1). Ms. Adams, President, presided and in attendance, also, were: Messrs. Franks, Johnny Smith, Johnny Hood and Mr. James Brooks. /4/ The non-members were identified to Ms. Adams and they were not asked to leave. To the contrary, I credit Ms. Adams' testimony that she read the agreement and that she answered questions about it (Tr. 199-200). Indeed, Mr. Hood, with a greater sense of public relations than some of his fellow members, quite candidly stated. "Q. The meetings you attended when you were an officer, in the event that non-members were you say there as invited guests, were they allowed to vote and participate? "A. No, sir, they were allowed to come and listen and it was-- well, the whole thing behind it was to invite non-union in the hope to make members out of them, to show them what went on, you know, what people was trying to work for them instead of against them." (Tr. 176) I do not credit Ms. Adams' testimony that she did not convene the meeting. The record shows, and I find, that she did convene the meeting; that the agreement was discussed; and that, as Mr. Hood stated, there was dissatisfaction with the agreement expressed by members as well as by the non-members present (Tr. 175, 183-184). It is further clear that the non-Union employees present asserted a right to vote on the agreement and that Ms. Adams told them that, as non-members of the Union, they could not vote. As Mr. Hood very credibly testified. " . . . that's what started the whole uproar. They was under the impression, which I would probably have had too had had I not belonged to the union, that if there was something out there that was affecting my job and I felt that this part of a group of people were involved in it, I would feel that I would want a voice in it too." (Tr. 179). Mr. Linder testified, in part, as follows: ". . . Ab far as having anything to say about the union itself, my being a non-member, I feel that I have no right to deal with the union. But when it has to do with my job on the flight line, it puts food on the table for my kids and clothes on their backs, then I feel that I should have a say on it being a member or not of the union. "Q. You're relating that to the work schedule then? "A. Yes." (Tr. 103). Mr. Tomasak's testimony was to like effect. He testified on cross-examination, in part, as follows: "A. We went there just to-- it was supposed to be discussion before it was ratified and we went to see what the discussion was about, see if there was anyway to change it. See why we didn't have a say in what was going on in the first place. . . . . "A. Well, if it affects the people on the flight line, we should have something to say about it. "Q. Well, do you mean by that that you should have been at the negotiation sessions? "A. No, we should have had somebody who represented us more fully. "Q. Well, who is supposed to represent the non-union members, Mr. Tomasak? "A. Well, there ought to be somebody there to represent us. "Q. Well, meaning who? "A. Well, if nobody else, we should elect somebody from the non-union members and had somebody sit in there and bargain for us." (Tr. 68-69). On direct, Mr. Tomasak had testified, in part, as follows: "Q. Did you ask Mrs. Adams any questions about the schedule? "A. Yes, we did. We basically asked her the same questions we did Jack Franks, why we couldn't be represented during the bargaining of our schedule. "Q. And do you recall what she said? "A. She said that she didn't have to represent us, that we didn't have anything to say unless we were in the union. That if we joined the union, we could have a say so in schedules being made and everything else. "Q. What did she say your rights were? "A. She said we didn't have any rights unless we were union members. We didn't have to be represented." (Tr. 57). Ms. Babb testified, in part, as follows: "Q. . . . Do you recall what type of questions were being asked? "A. They were just scheduling-- discussing the proposed schedule, you know, why we were working Tuesday through Saturday on a 30-day rotation. They were just curious about the schedule that was being proposed. "Q. And what was Mrs. Adams response to these questions? "A. Concerning the schedule, I don't recall what was said. It was just proposed what was being discussed about it and she said that we didn't have any rights as a non-union member. She didn't have to listen to us or represent us, and if we decided to become a union member at that time, we could have some say so about scheduling-- we could work and stuff but if we were not a union member, we had no rights. And if you became a member you can be represented." (Tr. 88-89). Mr. Linder testified that, "A. Well, she (Ms. Adams) stated that as being non-union members, that the union didn't have to represent us in any way. (Tr. 100). On cross-examination he was asked, "Q. Isn't it true, Mr. Linder, that there is some confusion here? Isn't it true that Mrs. Adams said in order to have a voice in the final product, to ratify it, you must be a union member so otherwise you have no voice? Isn't this essentially what she said? (Tr. 108-109). Mr. Linder responded, "A. Well, that might have been what she meant but that wasn't what she said. "Q. In other words, you didn't understand it that way? "A. No, I didn't understand it that way. "Q. Well, are you aware, Mr. Linder, that your negotiating committee, being the negotiating committee for the local, was representing everybody at the bargaining table including you? Were you not aware of that? "A. By being a non-union member I was told I wasn't represented." (Tr. 109). 7. The record shows without dispute that there were not sufficient members present at the Union meeting held on, or about, April 25, to constitute a quorum (See, Tr. 133, 167, 198). Ms. Adams may well have retreated to reliance on the absence of a quorum because of the opposition to the agreement by the Union members present, as Mr. Tomasak testified, "And after a while when she saw that the three members that were there, it wasn't going to be ratified because they were asking questions and they really didn't like what was in it, she said they were not going to vote on it that day . . . so she postponed it for a different day" (Tr. 59); nevertheless, Ms. Adams did not bring to a vote ratification of the agreement because of the absence of a quorum; announced that the meeting would be rescheduled; "and non-union members don't show up." (Tr. 93). 8. Although the non-union employees present at the Union meeting had been identified to Ms. Adams at the commencement of the meeting, when Mr. Massengale got up to leave either Ms. Adams asked him who he was (Tr. 101) or she asked someone in the room who that man was and was told it was Bill Massengale. Mr. Tomasak testified that Ms. Adams then said, ". . . oh, that's Bill Massengale. He is a troublemaker. don't like troublemakers and I am going to get rid of him." (Tr. 58). Mr. Linder testified, in part, as follows: ". . . and she said, oh, you're bill massengale. And he said, yes, I am. And then after he went out, then, well, I believe that Mrs. Adams said, so that's Bill Massengale. Says, he is a troublemaker. Says, I will get him. But (sic) she meant by that I have no idea." (Tr. 101). Ms. Babb testified, in part, as follows: ". . . there was a little bit of a disturbance between the two and she asked for his name. And he gave her his name and he left and she stated that he was a troublemaker. And that's about all I remember." (Tr. 89). Mr. Hood, testified, in part, as follows: "Q. Did you ever hear Mrs. Adams make a statement at the meeting to Mr. William Massengale, I will get you? "A. No, sir. Like I said, there was a lot going on and she mentioned something about, well, you're just a troublemaker, or something like that. I heard something to that effect." (Tr. 178). Mr. Smith denied having heard any such statement (Tr. 147) as did Mr. Brooks (Tr. 161) and Ms. Adams denied that she told Mr. Massengale she would get him (Tr. 206), but she was neither asked, nor did she deny that she called Mr. Massengale a troublemaker. In any event, I find that Ms. Adams did call Mr. Massengale a troublemaker and further that she said she would "get" him or "get rid of him". I make this latter finding, with full awareness that neither Ms. Babb nor Mr. Hood recalled any such statement although each very credibly testified that Ms. Adams called Mr. Massengale a troublemaker, in part because I found Mr. Tomasak's and Mr. Linder's testimony in this regard wholly credible; in part because I did not find the testimony of Mr. Smith, of Mr. Brooks, or of Ms. Adams in this regard credible; and in part because the circumstances of singling out Mr. Massengale for further identification at the end of the meeting and terming him a "troublemaker", which even Ms. Adams did not deny, is so thoroughly consistent with the "get" him statement attributed to Ms. Adams by Messrs. Tomasak and Linder. CONCLUSIONS Section 14(a)(1) of the Statute creates not only the right but the duty of an exclusive representative to act for, and to negotiate collective bargaining agreements covering, all employees in the unit. To be sure, Sec. 14(a)(1) specifically provides that, " . . . An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership." Nevertheless, the second sentence of Sec. 14(a)(1), set forth above, does not limit or restrict the right and duty of a labor organization, set forth in the first sentence of Sec. 14(a)(1), " . . . to act for, and negotiate collective bargaining agreements covering, all employees in the unit." Both under the Executive Order and the Statute far less weight has been accorded to community of interest of employee, or more accurately the lack of it, in determining appropriate units than the National Labor Relations Board has traditionally accorded in the private sector under the NLRA; but in both the public and private sector it is not uncommon that particular employees, or groups of employees, who are included in broader units feel that their concerns are not fully understood or appreciated. Nevertheless, the exclusive representative has both the right and the duty to negotiate collective bargaining agreements covering all employees in the Unit, provided only that it must represent the interests of all employees in the Unit without discrimination and without regard to labor organization membership. Not only was it not charged, but the Agreement (Res. Exh. 1) plainly shows that its terms apply to all maintenance and operations personnel of the 917th and that labor organization membership is not a consideration. Philosophically, there is logic to the argument that collective bargaining agreements covering all employees should be voted on by all employees; but this is not the way the law has developed. All employees are entitled to vote in determining whether there is to be union representation; but once a labor organization is chosen as the exclusive representative, the labor organization then acts for, and negotiates collective bargaining agreements covering, all employees and its members ratify and approve such agreements in the manner provided by the labor organization's governing requirements. Although the Statute protects the right of each employee to refrain from joining any labor organization, non-members have no right under the Statute to vote or to participate in meetings of the labor organization. There is no doubt whatever that a statement, as alleged in Paragraph 5(a) of the Complaint, that the Union would not represent employees in the unit unless they were members of the Union, would, ordinarily, constitute a violation of Sec. 16(b)(1). See, for example, American Federation of Government Employees, Local 1778, AFL-CIO and Department of the Air Force, Headquarters, 438th Air Base Group (MAC), Mcguire Air Force Base, Case. No. 2-CO-12 (ALJ, February 17, 1981); National Treasury Employees Union and U.S. Customs Service; National Treasury Employees Union and Nuclear Regulatory Commission, Case Nos. 3-CO-26, 3-CO-37 (ALJ, February 25, 1981); cf., National Treasury Employees Union (NTEU), Chapter 202, et al., 1 FLRA 909 (1979); Federal Aviation Science and Technological Association Division, National Association of Government Employees, 2 FLRA 801 (1980). However, this case is not ordinary, but is quite extraordinary. Indeed, the "representation" sought was that the non-Union crew chiefs be allowed to participate in negotiations. Neither Mr. Franks, then Chief Steward of the Union, nor Mr. Massengale, the charging party, was employed at the 917th at the time of the hearing and neither testified at the hearing. Consequently, as the primary protagonists were absent and only portions of their conversation were overheard, it is not known, fully, how Mr. Massengale's conversation with Mr. Franks began but it is clear from Mr. Linder's testimony that Mr. Franks told Mr. Massengale that" . . . if he wanted to have a say in what the union was doing, that he could go ahead and join the union and start paying his dues and then he would have a say on what the union was doing" (Tr. 97); and Mr. Tomasak made it very clear that the representation he had sought in his question to Mr. Franks, and the representation Mr. Massengale had sought, was the right, as non-Union employees, to have a representative sit in at the negotiating table (Tr. 61) which he fully reaffirmed in regard to questions later asked at the Union meeting, " . . . we basically asked her the same questions we did Jack Franks, why we couldn't be represented during the bargaining of our schedule." (Tr. 57). Recognizing, as the record shows, that Mr. Massengale and Mr. Tomasak had asked, or asserted the right, as non-Union employees to take part in negotiations, Mr. Franks' response becomes quite different than as alleged in the Complaint. While I fully appreciate the concern of the non-Union employees, it was, as the British might say, cheeky for a non-Union employee to ask, or assert the right, to a Union official to take part in the Union's negotiations and I equally appreciate the strong reaction that such assertion was reasonably calculated to provoke, and did provoke, by Mr. Franks. For reasons more fully stated in Oklahoma City Air Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA No. 32 (1981), I concluded that, under the particular circumstances of this case, Mr. Franks' statements fall within the protection of Sec. 16(e) of the Statute which "protects the expression of personal views, arguments or opinions by . . . union representatives as long as such expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions." 6 FLRA No. 32 at p. 6. As Mr. Massengale had gone to Mr. Franks, to talk about the non-Union crew chiefs taking part in negotiations and Messrs. Linder and Tomasak passed by and, being interested, as non-Union crew chiefs themselves, "joined" the discussion, Mr. Franks' expression of personal views were not made under coercive conditions; nor, under the circumstances, was there any threat of reprisal or force or proscribed promise of benefit. Mr. Franks' statement to Mr. Massengale, as Mr. Linder testified, that ". . . he could . . . join the union . . . and then he would have a say on what the union was doing" correctly stated the rights flowing from Union membership and was not a promise of benefit proscribed by Sec. 16(e). Indeed, in response to Mr. Massengale's assertion that non-Union employees could, or should, participate in negotiations, Mr. Franks' response, as provided in Sec. 16(e)(2) corrected " . . . the record with respect to any false or misleading statement made by any person" by telling Mr. Massengale that if he wanted a voice in what the Union was doing he could join the Union and then he would have "a say" on what the Union was doing. Thereafter, Mr. Massengale, and other non-Union crew chiefs, learned that there was to be a Union meeting at which the agreement concerning the shift change was to be considered; they inquired of their shop steward, Mr. Weeks, whether they could attend, and he told them they could, so several of them went to the Union meeting. They were permitted to attend the meeting at which the agreement was read and discussed. The record shows, as Mr. Tomasak testified, that they " . . . basically asked . . . (Union President Adams) the same questions we did Jack Franks, why we couldn't be represented during the bargaining of our schedule" to which Ms. Adams responded, as Mr. Tomasak stated, "She said that she didn't have to represent us, that we didn't have anything to say unless we were in the union. That if we joined the union, we could have a say so in schedules being made and everything else." (Tr. 57). (See, to like effect, the testimony of Mr. Linder (Tr. 100) and Ms. Babb (Tr. 88-89)). Under ordinary circumstances, as stated above, such statement would constitute a clear violation of Sec. 16(b)(1); but recognizing that the representation sought was the right of non-Union employees to join in negotiations coupled with: (a) the asserted right to join in discussions at a Union meeting; and (b) the asserted right, because " . . . it has to do with my job on the flight line", to vote, i.e., "have a say on it being a member or not of the union", on the negotiated agreement, I do not find Ms. Adams' response, as alleged in Paragraph 5(b) of the Complaint, concerning representation, to have been improper or to constitute a violation of Sec. 16(b)(1) of the Statute. For reasons set forth above as to Mr. Franks' statements, I conclude that Ms. Adams' statements in this regard fall within the protection of Sec. 16(e) of the Statute. In addition, she properly stated that, as non-members, they had no right to speak at the Union meeting and no right to vote. Although I have endeavored to make it clear, let me emphasize again that nothing contained in this decision means that a labor organization may with impunity, under any circumstances, refuse to represent any employee in the bargaining unit. I have found no violation in this case solely because the representation sought was not that the Union represent any employee but, rather, that non-Union employees be allowed to join in negotiations and/or that non-Union employees be allowed to "have a say" in Union business. A labor organization has a duty to represent the interests of all employees in the Unit it represents without discrimination, but nothing in the Statute grants any right to non-members to engage in collective bargaining. To the contrary, the whole thrust of Sec. 14(a) is that a labor organization which has been accorded exclusive recognition is "the exclusive representative of the employees in the unit . . . and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit." At the end of the meeting, Ms. Adams called Mr. Massengale a troublemaker and, further, stated she would "get" him or "get rid of" him. Although Mr. Massengale, and other non-members, were present only by grace, Ms. Adams' statement that Mr. Massengale, who had been the most vocal of the non-members present, was a troublemaker and that she would "get" him constituted a threat and, made in the presence of other non-members, also had a chilling effect upon the right of other employees to, inter alia, refrain from joining or assisting any labor organization "freely and without fear of penalty or reprisal", in violation of Sec. 16(b)(1) of the Statute. Having found that Respondent violated Sec. 16(b)(1) of the Statute by terming Mr. Massengale a troublemaker and stated that she would "get" him, I shall recommend that the Authority issue an appropriate order. Although Mr. Massengale has left the employ of the 917th, Respondent's violation has not been rendered moot as such statement, made in the presence of other non-Union employees also interfered with, restrained, or coerced other employees. Indeed, both because of the circumstances in which the threat was made and because, as General Counsel states, there was a prior violation by the same Respondent involving threats to employees, a broad cease and desist order is warranted. In all other respects, I recommend that the Complaint in Case Nos. 6-CO-37 and 6-CO-38 be dismissed. Accordingly, I recommend that the Authority issue the following: ORDER Pursuant to Sec. 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby orders that American Federation of Government Employees, Local 2000, AFL-CIO, shall: 1. Cease and desist from: (a) Threatening to "get" or to "get rid of" non-members of the Union. (b) In any manner interfering with, restraining, or coercing any employee in the exercise by the employee of any right under the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action: (a) Post at their respective business offices, in normal meeting places, and all places where notices to members of Local 2000 are customarily posted, copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by a representative of American Federation of Government Employees, AFL-CIO, Local 2000, and shall be posted for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (b) Submit signed copies of said Notice to employers for posting in conspicuous places where unit employees are located, where they shall be maintained for a period of 60 consecutive days from the date of posting. (c) Pursuant to Sec. 2423.30 of the Regulations, 5 C.F.R. 2423.30, notify the Regional Director of the Federal Lab or Relations Authority for Region VI, whose address is: Old Post Office Building, Bryan & Ervay Streets, Room 450, P.O. Box 2640, Dallas, Texas 75221, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. WILLIAM B. DEVANEY Administrative Law Judge Dated: February 24, 1982 Washington, D.C.