[ v17 p341 ]
The decision of the Authority follows:
17 FLRA No. 50 GENERAL SERVICES ADMINISTRATION CENTRAL OFFICE, REGION IV INTERAGENCY MOTOR POOL KENNEDY SPACE CENTER Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Case No. 4-CA-1058 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Respondent and the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. 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 and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire stipulated record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge found, based upon a stipulated record without a hearing, that the Respondent interfered with employees' protected rights under section 7102 of the Statute, in violation of section 7116(a)(1) of the Statute, by discontinuing its original termination plan and discharging five rather than two temporary drivers because of the Union's "second guessing." The Authority disagrees. Thus, the Authority concludes that the evidence contained in the stipulated record fails to support the Judge's finding that the Respondent's actions interfered with, restrained or coerced employees in the exercise of rights protected by the Statute. In this regard, as noted by the Judge, the Union president was not acting as the exclusive representative of the temporary drivers at the meeting of June 19 inasmuch as they were not members of the bargaining unit, and, as further noted by the Judge, the record also does not indicate in what capacity he was attending that meeting along with the Respondent's Equal Employment Counselor. Indeed, there is no record evidence that the temporary drivers either requested his assistance or even knew that he would seek to act on their behalf, or were otherwise engaging in protected activity under section 7102 of the Statute. Moreover, there is no record evidence that the supervisor's statement at the June 19 meeting that he was tired of being second guessed concerning his decision was directed toward the Union. Accordingly, the Authority concludes that the General Counsel has failed to sustain the burden of proving the allegations of the complaint that the Respondent violated section 7116(a)(1) of the Statute by terminating several non-unit temporary employees because the Union intervened on their behalf and attempted to discuss their terms and conditions of employment. Cf. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 16 FLRA No. 21 (1984) (no evidence was presented that discipline of a supervisor had a chilling effect on the exercise of protected employee rights). ORDER IT IS ORDERED that the complaint in Case No. 4-CA-1058 be, and it hereby is, dismissed. Issued, Washington, D.C., March 27, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No. 4-CA-1058 ------------- OLLOWS ------- For the Respondent Barbara S. Liggett, Esquire For the General Counsel Mr. Homer Mays For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, and Vol. No. 46, No. 154, August 11, 1981, 5 CFR Chapter XIV, Part 2411, et seq. Pursuant to an amended charge first filed on July 10, 1981, by the American Federation of Government Employees, AFL-CIO (hereinafter called the AFGE or Union), a Complaint /1/ and Notice of Hearing was issued on September 29, 1981, by the Regional Director for Region IV, Federal Labor Relations Authority, Atlanta, Georgia. The , Complaint alleges that the General Services Administration Central Office, Region IV, Interagency Motorpool Kennedy Space Center (hereinafter called the GSA or Respondent), violated Section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute or Act), by virtue of its actions in terminating temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer because Mr. Homer Mays, President of Local 2498, intervened on their behalf and attempted to discuss their terms and conditions of employment. Following the issuance of the Complaint and Notice of Hearing, all parties entered into a stipulation of facts and exhibits and jointly filed a motion with the Office of Administrative Law Judges wherein they waived oral hearing and requested that the record be opened for the sole purpose of receiving the stipulation and exhibits and that a decision be rendered solely on the basis of such stipulation of facts and exhibits, and the parties post-hearing briefs. The motion was granted on March 16, 1982, and the parties were given until April 16, 1982, to file post-hearing briefs. The General Counsel and the Respondent submitted post-hearing briefs which have been duly considered. Upon the basis of the entire record, which of course, consists of the stipulation of facts, stipulation of exhibits, and the parties post-hearing briefs, I make the following findings of fact, /2/ conclusions, and recommendation. Findings of Fact The Union Local 2498 was granted exclusive recognition for an appropriate unit, as set forth below, on February 4, 1966. On September 10, 1980, the Federal Labor Relations Authority certified a unit consolidating all AFGE represented bargaining units with GSA in Case No. 3-UC-1. Since that date, the American Federation of Government Employees (the national Union) has been the exclusive representative. On November 21, 1974, an agreement between GSA Region 4 and Union Local 2498 was put into effect. Upon consolidation of the AFGE units, a written agreement between GSA and AFGE outlined interim measures for the relationship. On February 24, 1981, AFGE cancelled the interim agreement, notified GSA that it would assume a national relationship. On February 24, 1981, AFGE cancelled all collective bargaining agreements. The parties hereto agree that as relates to all matters and proceedings herein, the Union has been and remains the exclusive representative of the employees of Respondent in an appropriate unit as set forth and described in a collective bargaining agreement, which has been in effect since on or about November 21, 1974. The appropriate unit set forth in the agreement includes all civil service employees of the Kennedy Space Center with Florida duty stations including those in a TAPER status, who are classified as both non-supervisory and non-professional, excluding professional, supervisory, managerial, temporary and confidential employees. In a letter dated June 17, 1981, the National Aeronautics and Space Administration herein NASA, notified Respondent that due to NASA budget limitation, the funding for five of the seven temporary drivers employed by Respondent and utilized by NASA would terminate effective June 26, 1981. Respondent had, at NASA's request, previously hired seven drivers on a temporary appointment not to exceed one (1) year. Since these seven drivers were being funded by NASA on a reimbursable basis to Respondent, the termination of that funding required the immediate termination of those five employees unless Respondent was able to continue funding. On or about June 18, 1981, a meeting was arranged by Roger Willadsen, Fleet Manager for Respondent's interagency motor pool at the Kennedy Space Center. In attendance at that meeting was Mr. Willadsen and Mr. Homer Mays, President of Union Local 2498. /3/ Mr. Mays and Mr. Willadsen discussed NASA's request for the termination of five temporary drivers and the plan Mr. Willadsen had developed for the absorption of three of those five employees through detail of permanent employees. Since the action would impact on permanent employees within the collective bargaining unit, Mr. Willadsen arranged the discussion meeting. Mr. Willadsen projected this absorption plan to be six weeks in duration. The plan as outlined at this meeting did not identify the three employees to be absorbed, nor did it identify the two remaining employees to be terminated. Mr. Mays made no specific objections to the plan, though he did make the recommendation that terminations be made in accordance with the collective bargaining agreement. Mr. Willadsen indicated that performance would be a significant criteria in his determination. After discussions and after receiving recommendations from his line supervisors, and after determining that the affected permanent employees had voluntarily agreed to the temporary details, Mr. Willadsen informed the temporary drivers of the planned disposition of all seven temporary drivers. The original planned disposition was as follows: (a) Employees Eldridge and Parker (males) would continue to be funded by NASA. (b) Employees Mitchell (male), Golden and Shafer (females) were to be absorbed by Respondent. (c) Employees Fisher and Ehrke (females) were to be terminated. On or about June 19, 1981, after announcement of the employee disposition, Mr. Mays requested a second meeting with Mr. Willadsen. In attendance at that meeting were Mr. Mays, accompanied by Verdell Fayson, the Equal Employment Counselor. /4/ At this meeting, Mr. Mays sought to discuss the criteria being used to determine which employees should be terminated and which employees should be retained. Mr. Mays challenged the determination on the basis that: (a) seniority was not used as a criteria, and (b) no equal employment counseling was sought before making the determination to terminate only females. Mr. Willadsen maintained that the plan and the method of implementation was a management decision. As the discussion progressed, Mr. Willadsen advised Mr. Mays and Fayson that he was tired of being "second guessed" concerning this decision and, accordingly, he would rescind his original planned disposition for the temporary drivers and would terminate five drivers rather than two. Mr. Willadsen then contacted Respondent's Region IV, Atlanta office of personnel by telephone to confirm his decision to terminate all five of the temporary drivers. At the conclusion of the telephonic conference, Mr. Willadsen again announced that Respondent had decided to abandon the plan to absorb three temporary employees and was reverting to the original mandate from NASA to terminate five temporary employees. On or about June 26, 1981, temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell, Shirley Shafer, and Dorothy Ehrke were terminated. Temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer would not have been terminated at that time but for the intervention of Mr. Mays. Discussion and Conclusions The General Counsel takes the position that the Respondent violated Section 7116(a)(1) when it announced on May 19, 1981, that it was rescinding the original planned disposition for the temporary drivers and would terminate five surplus temporary drivers rather than just two surplus temporary drivers. Since the Respondent's action was admittedly caused by Union President Mays' criticism of the original termination plan, the General Counsel contends that Respondent's action made it clear to all of Respondent's employees that the utilization of the Union's assistance in future disputes would bring dire consequences. According to the General Counsel, Respondent's action in creating such an impression upon Respondent's employees was violative of Section 7116(a)(1) of the Statute in that it coerced and restrained the employees in the exercise of their Section 7102 rights to form, join, and assist a labor organization, freely and without fear of penalty. The General Counsel does not contend that Respondent's action was violative of Sections 7116(a)(2) and (5) of the Statute. Thus, the General Counsel acknowledges that the Respondent was under no obligation to bargain with Union concerning the temporary employees since they were not members of the recognized unit and that the temporary employees were not laid off or terminated because of any protected union activity. The Respondent on the other hand takes that position that its action did not violate Section 7116(a)(1) of the Statute. In support of its position Respondent contends that inasmuch as the temporary employees were not in the recognized unit it was under no obligation to bargain with the Union over their conditions of employment. Further, according to Respondent, the fact that the Union might have been appearing as the personal representative of the temporary drivers does not alter this conclusion, since concerted activity is not protected by the Statute. Finally, according to Respondent, inasmuch as the stipulation "provides inadequate evidence to support a finding of anti-union animus", Respondent's actions could not be said to have created a "chilling" effect on the bargaining unit employees. It is well established that employees have a right to form, join or assist a labor organization without fear of penalty or reprisal and that interference with such right is violative of Section 7116(a)(1) of the Statute. In the instant case Respondent, admittedly, terminated five rather than two temporary employees because it resented the Union President's attempted intrusion on its decision to select two temporary employees for termination without reference to either seniority or EEO considerations. Had the Union been acting in its capacity as exclusive representative of unit employees, the law is clear, that Respondent's action in rescinding the proposed plan would be violative of Section 7116(a)(1) of the Statute since such retaliatory action clearly conveyed to the employees, unit and non-unit alike, the impression and/or message that utilization of union representation or assistance could, and indeed did, result in dire economic consequences. Pennsylvania Army and Air National Guard, A/SLMR No. 1085; Department of Transportation, FAA, Airway Facilities Sector, Tampa, Florida, A/SLMR No. 725; Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 6 FLRA No. 108. However, such is not the case. Mr. Mays was appearing not as the exclusive representative of the unit employees but rather apparently as the personnel representative of some of the temporary non-unit employees who were scheduled for termination. In such circumstances, Respondent, as pointed out supra, would distinguish the rights accorded its employees and find no violation of the Statute. I cannot agree. Employees, be they unit or non-unit employees, /5/ are accorded the right to form, join, and assist a labor organization freely and without fear of reprisal. To the extent that such right is interfered with, a violation of Section 7116(a)(1) is established. Neither a literal reading of the Statute, the legislative history, nor the case decisions under the Executive Order and the Statute, indicate that a distinction should be made when the union from which assistance is sought by an employee is not the exclusive representative of the employee in a recognized unit. In fact the only distinction in this respect concerns the agency or activity's bargaining obligations, i.e. an agency is only obligated to bargain with a union when it is the exclusive representative in an appropriate unit. While an agency is under no obligation to bargain and in fact meet with a non-recognized or non-certified union except possibly as an employee's personal representative, it is not free to penalize employees because they have sought or accepted assistance from such union. It is not the forum where remarks are made or actions taken which governs the illegality of such acts or remarks but rather the nature of such acts and remarks. If the acts or remarks interfere with the rights accorded employees under the Statute then they are violative of Section 7116(a)(1) irrespective of the forum or circumstances where uttered or taken. /6/ To hold otherwise would result in sanctioning coercive or restraining statements or actions made by agencies during organizing campaigns, because, similar to the circumstances herein, the Union would not have at such time achieved the status of exclusive representative. Accordingly, to the extent that Respondent contends that the June 19, 1981, meeting, was, at best, "concerted activity" and hence unprotected by the Statute, I find, in accordance with the above analysis, that irrespective of the nature of the meeting, Respondent is not relieved of liability for any statements or actions emanating therefrom which have the effect of interfering with its employees' statutory right. /7/ Further, again contrary to the contention of the Respondent, I find that when a statement and/or an action is by its very nature coercive and restraining, no independent evidence of union animus is necessary to sustain a violation of the Statute. Here the very act, i.e. discontinuing the original termination plan and discharging five rather than two temporary drivers because of the Union's second guessing, is by its very nature coercive. Had Respondent discontinued or abandoned its plan because the Union had demonstrated possible deficiencies in such plan or for that matter any other legitimate reason, a different conclusion might well be in order. However, such was not the case. The stipulation clearly indicates that it was not the merits of the Union's objections to the plan which motivated Respondent's action but rather the Union's "second guessing". In such circumstances Respondent not only interfered with the rights of Respondent's remaining employees to freely accept future representation by the Union but also penalized the four discharged temporary employees because of the Union's intervention on their behalf and deprived them of any future opportunity they may have had to seek union representation in connection with their respective working conditions with the Respondent. Having found and concluded that Respondent has violated Section 7116(a)(1) of the Statute, I recommend that the Authority issue the following order designed to effectuate the purposes and policies of the Statute. /8/ ORDER Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section 2423.29(b)(1), the Authority hereby orders that the General Services Administration Central Office, Region IV, Interagency Motorpool Kennedy Space Center shall: 1. Cease and desist from: (a) Terminating the employment of temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell and Shirley Shafer because Local Union 2498, American Federation of Government Employees, AFL-CIO intervened on their behalf and challenged a management decision. (b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights guaranteed by the Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Make temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer whole for any monies lost due to their terminations in retaliation for the intervention of Local Union 2498, American Federation of Government Employees, AFL-CIO, on their behalf. (b) Post at the General Service Administration Central Office, Region IV, Interagency Motorpool, Kennedy Space Center, Florida, 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 a responsible official of Region IV, General Services Administration and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the 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: May 11, 1982 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, restrain or coerce our employees in the exercise of their rights assured in the Federal Service Labor-Management Relations Statute by terminating the employment of temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer because Local Union 2498, American Federation of Government Employees, AFL-CIO, intervened on their behalf and challenged a management decision. WE WILL NOT in any like or related manner, interfere, restrain or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute. WE WILL make temporary employees Charles Parker, Walter Eldridge, Joseph Mitchell, and Shirley Shafer whole for any monies lost due to their terminations in retaliation for the intervention of Local Union 2498, American Federation of Government Employees, AFL-CIO, on their behalf. . . . (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 its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority whose address is: Suite 501-North Wing, 1776 Peachtree Street, N.W., Atlanta, Georgia 30309, and whose telephone number (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ In the absence of any opposition, the General Counsel's motion to amend the Complaint and substitute the name "Vivian Daniel Smith" for the name "Daniel Smith" is hereby granted. /2/ Since the record consists solely of facts and exhibits stipulated by all parties, there is no dispute as to the facts. The factual summary set forth infra, is for the most part a verbatim recitation of the stipulation of facts. /3/ The record does not indicate whether Mr. Mays was an employee of Respondent. /4/ The record does not indicate in what capacity Mr. Mays was appearing at the meeting or whether Verdell Fayson was a part of management or just a rank and file employee. /5/ In reaching this conclusion it is noted that the Statute defines an employee as "an individual employed in an agency". Inasmuch as the temporary drivers involved herein are individuals employed by an agency, they are therefore entitled to all the rights accorded "employees" under the Statute. /6/ See Department of Transportation, FAA, supra. /7/ Respondent's reliance on VA Medical Center, Bath, New York, 4 FLRA No. 76 is misplaced. In such case the Authority merely concluded that concerted activity was not protected by the Statute and was not, as here, faced with any threats or other coercive actions emanating therefrom. /8/ Inasmuch as the record indicates that the temporary employees would have only worked for six additional weeks at most, I shall only order Respondent to make them whole.