18:0583(73)CA - 162nd Tactical Fighter Group, Arizona NG, Tucson, AZ and AFGE Local 2924 -- 1985 FLRAdec CA
[ v18 p583 ]
18:0583(73)CA
The decision of the Authority follows:
18 FLRA No. 73
162nd TACTICAL FIGHTER GROUP
ARIZONA AIR NATIONAL GUARD
TUCSON, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2924, AFL-CIO
Charging Party/Petitioner
Case Nos. 8-CA-30098
8-CA-30099
8-RO-30002
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled consolidated proceeding finding that, in Case No.
8-CA-30098, the Respondent had engaged in certain unfair labor practices
as alleged in the complaint and recommending that it be ordered to cease
and desist therefrom and take certain affirmative action, and also
finding that the Respondent had not engaged in certain other alleged
unfair labor practices and recommending dismissal of the complaint with
respect to them. The Judge further found that, in Case No. 8-CA-30099,
the Respondent had not engaged in the unfair labor practices alleged,
and recommended dismissal of that complaint. The Judge also recommended
that one objection to the election in Case No. 8-RO-30002 be sustained
and that all others be dismissed but, in accordance with section
2422.21(g)(1) of the Authority's Rules and Regulations, made no
recommendation with regard to any remedial action to be taken concerning
the sustained objection.
All parties filed exceptions to the Judge's Decision; the Charging
Party/Petitioner (AFGE/the Union) filed an opposition to the
Respondent's exceptions, and the Respondent filed an opposition to the
General Counsel's exceptions. /1/
Pursuant to sections 2422.21 and 2423.29 of the Authority's Rules and
Regulations and sections 7111 and 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. Upon consideration of the entire
record in this case, the Authority adopts the Judge's findings, /2/
conclusions and recommendations, as modified below.
THE OBJECTIONS TO THE ELECTION (Case No. 8-RO-30002)
Objection No. 6
This objection is based upon an allegation that the Activity, prior
to the election herein, improperly disallowed the distribution of
campaign literature in a non-work area. The Authority adopts the
Judge's recommendation that the objection with regard to the
Respondent's removal of a few 2" x 3" cards announcing a Union meeting
from an employees' break room be dismissed, noting the Judge's finding
that the Union had waived its right to distribute literature during the
campaign.
Objection No. 10
This objection alleges that the Activity distributed a series of
pre-election memoranda which, by inference, suggested negative aspects
of unionism and interfered with the employees' freedom of choice in the
December 15 election. The Judge found that the Activity distributed
several memoranda to its employees prior to the election, and that the
memoranda dated November 12, December 7 and December 9, which are
described in the Judge's Decision, contained statements which exceeded
the scope of permissible management expression under section 7116(e) of
the Statute and thus interfered with the free choice of the voters in
the election. He therefore recommended that this objection be
sustained. The Authority disagrees, noting particularly that the
statements contained in the memoranda in question were, as found by the
Judge, correct as to law and/or government policy, and did not promise
benefits to or threaten employees in regard to their voting in the
election. Therefore the Authority finds that, in the circumstances of
this case, such memoranda did not interfere with the employees' freedom
of choice in the election. Accordingly, this objection shall be
dismissed.
Objection No. 13
Objection No. 13 alleges that the Respondent's Commanding Officer, at
a meeting of its employees five days before the election, stated that
the Guard was "one big happy family" and that no "outside influences"
were needed. The Judge found that no such statements were made at the
meeting and therefore recommended dismissal of this objection. The
Authority agrees. Accordingly, this objection shall be dismissed.
Accordingly, as all objections to the election have been found to be
without merit, the Regional Director is directed to take further
appropriate action consistent with this decision.
THE UNFAIR LABOR PRACTICE COMPLAINTS
Case No. 8-CA-30099
The complaint in Case No. 8-CA-30099 alleges that the Respondent's
Commanding Officer made certain statements at the meeting of its
employees five days before the election which violated section
7116(a)(1) of the Statute. The Judge found that the Commanding Officer
did not make two of the statements attributed to him, i.e., (1) that the
employees did not need outside influences because the Guard was one big
happy family, or (2) that the Union officials acted in poor taste or in
an underhanded manner in distributing union election material, and the
Authority adopts the Judge's finding in this regard.
The Judge additionally found that the Commanding Officer did state
that he was disappointed about the distribution of literature by the
Union in that it demonstrated a lack of good faith, since an agreement
had been made between the parties not to campaign on the premises. The
Judge concluded that the statement did not violate section 7116(a)(1) of
the Statute.
The Authority agrees, but for the following reasons. Section 7116(e)
of the Statute provides:
(e) The expression of any personal view, argument, opinion or
the making of any statement which--
(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
(2) corrects the record with respect to any false or misleading
statement made by any person, or
(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions, (A) constitute an unfair labor practice under any
provision of this chapter, or (B) constitute grounds for the
setting aside of any election conducted under any provisions of
this chapter.
Noting our adoption of the Judge's finding (supra under Objection No. 6)
that the Union waived its right to distribute literature during the
campaign, and noting that the statements which the Judge finds were made
by Union supporters to supervisor Carpenter denying the Union's role in
the posting of that literature, the Authority finds that the Commanding
Officer's comments with regard to the distribution of such literature
served to "correct the record with respect to (a) false or misleading
statement made by any person." Accordingly, since the Commanding
Officer's comments were within the ambit of the above cited language of
section 7116(e) of the Statute, the Authority agrees with the Judge's
finding that the comments did not violate section 7116(a)(1) of the
Statute. /3/
Case No. 8-CA-30098
The complaint alleges that the Respondent violated section 7116(a)(1)
of the Statute on December 19, 1982 (four days after the election), when
management official Major Smith made statements to employees Jon Webb
and George Leflohic at meetings (a) that they would be closely watched
with regard to their civilian and military objectives because they were
visible supporters of the union, (b) that unions have no place in the
National Guard, and (c) that unions are a waste of taxpayers' money.
With respect to (a), the Judge concluded that the remarks made by
Smith to Webb and Leflohic interfered with, restrained, and coerced the
employees in violation of section 7116(a)(1) of the Statute. We agree.
The Judge found that Smith also made the statements to employees
Leflohic and Webb as alleged in (b) and (c) above; however, he
concluded that these statements were not made under coercive conditions,
were not accompanied by any threat of penalty or reprisal, and could not
be construed as interfering with the rights of employees to freely join
or assist a labor organization. We agree that the statements were not
accompanied by any threat of penalty or reprisal, and that the
statements did not reasonably tend to interfere with, restrain, or
coerce employees in the exercise of rights protected under the Statute.
Accordingly, the Authority finds that these statements are not violative
of section 7116(a)(1).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the 162nd Tactical Fighter Group, Arizona Air National Guard,
Tucson, Arizona, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by
impliedly threatening them with reprisal because of their activities on
behalf of the American Federation of Government Employees, Local 2924,
AFL-CIO, or any other labor organization.
(b) In any like or related manner interfering with, restraining, or
coercing its 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 its facilities at the 162nd Tactical Fighter Group,
Arizona Air National Guard, Tucson, Arizona, 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, or a designee, 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 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, Region VIII, 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 allegations of the complaint in Case
No. 8-CA-30098, to the extent that they have been found not violative of
the Statute, be, and they hereby are, dismissed.
IT IS FURTHER ORDERED that the allegations of the complaint in Case
No. 8-CA-30099 be, and they hereby are, dismissed in their entirety.
IT IS FURTHER ORDERED that the objections to the election in Case No.
8-RO-30002 be, and they hereby are, dismissed in their entirety.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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, restrain, or coerce our employees by
impliedly threatening them with reprisal because of their activities on
behalf of the American Federation of Government Employees, Local 2924,
AFL-CIO, or any other labor organization.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(Activity)
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 VIII, Federal Labor Relations Authority, Whose address
is: 350 S. Figueroa Street, Los Angeles, California 90071, and whose
telephone number is: (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Don Breneman
Victor Schwanbeck, Esq.
For the Respondent/Activity
Deborah S. Wagner, Esq.
E. A. Jones, Esq.
For the General Counsel
Kevin M. Grile, Esq.
For the Charging Party/Petitioner
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Order Consolidating Cases, Consolidated Complaint, and
Notice of Hearing With Outstanding Representation Hearing issued on
March 31, 1983 by the Acting Regional Director, Federal Labor Relations
Authority, Los Angeles, California, a hearing was held before the
undersigned in the above-captioned cases in Tucson, Arizona, on June 24,
1983.
This proceeding arose under 5 U.S.C. 7101 et seq. of the Federal
Service Labor-Management Relations Statute (herein called the Statute).
Cases 8-CA-30098 and 8-CA-30099 are based on charges filed on December
23, 1982 by American Federation of Government Employees, Local 2924,
AFL-CIO (herein called the Union or Petitioner) against 162nd Tactical
Fighter Group, Arizona Air National Guard, Tucson, Arizona (herein
called Respondent or Activity).
The Consolidated Complaint alleged, in substance, that (a) on or
about December 10, 1982 Respondent's Commander, Colonel John M.
Hartnett, made statements to employees at a meeting that they did not
need outside influences and that union representation was unnecessary or
undesirable; that officers of the Union acted in poor taste or in an
underhanded manner in distributing union election material; (b) on or
about December 17, 1982 Respondent's official, Major Michael R. Smith,
made statements to employees at a meeting that they would be closely
watched re their civilian and military objectives since they were
visible supporters of the Union; that unions have no place in the
National Guard; that unions are a waste of taxpayers' money-- all in
violation of Section 7116(a)(1) of the Statute.
Pursuant to a representation petition duly filed by the Petitioner
under Section 7111 of the Statute, both the Petitioner and the Activity
on November 30, 1981 signed an Agreement for Consent or Directed
Election among all classifications Act (GS) and Wage Grade employees
assigned to the 162nd Tactical Fighter Group, Arizona Air National
Guard. An election was conducted on December 15, 1982 under the
supervision of the Regional Director, Los Angeles, California Region of
the Activity's employees in the aforesaid unit.
The results of the election, as set forth in the Tally of Ballots,
were as follows:
Approximate number of eligible voters 323
Void ballots 0
Votes cast for American Federation of Government Employees,
Local 2924 91
Votes cast against exclusive recognition 219
Valid voters counted 310
Challenged ballots 1
Valid votes plus challenged ballots 311
Timely objections to conduct affecting the election were filed by the
American Federation of Government Employees, Local 2924, the Petitioner
herein. By letter received on March 2, 1983 Petitioner withdrew all
objections except for those designated as Objections 6, 10 and 13 which
were as follows:
Objection No. 6
AFGE alleges that the Activity disallowed the distribution of
union campaign literature in employee rest areas and recreational
room.
Objection No. 10
AFGE alleges that activity-management distributed a series of
pre-election bulletins through its internal mail system which
emphasized certain negative aspects of unions.
Objection No. 13
AFGE alleges that during a December 10, 1982 "How Goes It"
meeting, attended by the bulk of the unit's eligible voters, the
Activity's Commander addressed the subject of the Union's on-base
campaigning and stated in part that the Guard was "one big happy
family" and that employees did not need "any outside influences"
to deal with their problems. /4/
Upon investigation the Regional Director, Eighth Region, determined
that Objections 6, 10 and 13 raise relevant issues of fact and that
substantial questions of interpretation on policy exist which may have
affected the results of the election herein. Accordingly, a Notice of
Hearing on Objections was issued on March 24, 1983 by the aforesaid
Regional Director in 8-RO-30002.
Respondent/Activity filed an answer to the Consolidated Complaint and
Notice of Hearing With Outstanding Representation Hearing on April 22,
1983. In respect to 8-CA-30098 and 8-CA-30099, it denied the commission
of any unfair labor practices. In respect to 8-RO-30002, it denied any
interference with the election results or employees' freedom of choice
when voting for or against labor organization representation.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein approximately 450 employees were
employed as technicians at the 162nd Tactical Fighter Group of the
Arizona Air National Guard at Tucson, Arizona. The air technicians are
attached to the Consolidated Aircraft Maintenance Squadron which is
responsible for maintaining the aircraft of the 162nd Tactical Fighter
Group. The Avionics Branch is part of the Maintenance Squadron.
2. No labor organization has been recognized as the bargaining
representative of the technicians, nor has any labor organization been
certified as their collective bargaining representative.
3. On November 22, 1982 a meeting was held to discuss a consent
election among the eligible employees (Classification Act (GS) and Wage
Grade employees) assigned to the 162nd Tactical Fighter Group, Arizona
Air National Guard-- the Respondent herein. Management was represented
by Reuben De La Vara, Labor-Management Relations Specialist, William
Kyzer, Administrative Officer, and Major Smith. The Union and
Petitioner herein was represented by its president, Michael Coiro. At
this meeting Coiro, on behalf of the Union, stated that there would be
no campaigning on the Base; that he preferred a low-key campaign so as
to keep things as normal as possible. /5/
4. Subsequent to the November 22, 1982 meeting Kyzer advised Colonel
Hartnett, Commander at the 162nd Tactical Fighter Group, Tucson Air
National Guard, that the Union had agreed not to campaign on the Base.
He later informed the unit manager of said commitment at a supervisors
meeting.
5. Prior to the election held on December 15, 1982, /6/ and after
the consent election meeting herein referred to, management discovered
that campaign literature, on behalf of the Union, had been posted on
bulletin boards /7/ and walls throughout the Base. Whereupon Kyzer
notified Coiro on December 10 that the material had been so posted. The
Union official advised Kyzer that the posting was unauthorized and would
be removed. The literature was removed by both Union members and
management representatives.
6. Colonel Hartnett has made a practice of holding "How Goes It"
meetings on the Base regularly when he has significant information to
pass on to the employees. He started this procedure about 10 years ago
when occupying the position of Deputy Commander for Maintenance. These
meetings include all Base personnel and occasionally visitors are
present. No attendance record is taken thereat.
7. On December 10, Colonel Hartnett convened another "How Goes It"
meeting at the hangar which was attended by about 300 employees. At the
outset Hartnett discussed the Beautification Program which was in
progress. He commented on its good results and asked the employees not
to walk on the grounds or rocks. Mention was made by him re the
operation 'Santa Claus' whereby attempts were made to get toys and
donations for Indian children. He also congratulated those who received
awards.
Hartnett made statements concerning the Union and the forthcoming
election. He referred to the Union meeting scheduled that evening at
the Holidome (Holiday Inn), stating that those who wanted to should
attend and obtain information regarding the issues. The Commander
reminded the employees of the forthcoming election. He suggested they
should vote and make up their own minds whether they wanted a union.
Reference was made by Hartnett to the distribution of literature by the
Union throughout the Base. He stated that he was disappointed since
there had been an agreement between the parties that there would be no
campaigning on the Base prior to the election; that such distribution
of Union literature demonstrated a lack of good faith on its part. /8/
8. Respondent maintains a multi-purpose room located amid the
various Avionics electronic shops. It is roughly 10' x 12' in size with
an open entranceway to two other shops. Supervisors may conduct
business at times thereat, and occasionally employees eat lunch in the
room or take a break there. Placed in this room are a refrigerator for
storing lunch, soda pop and candy machines, as well as a coffee pot. A
table (3' x 5') is located therein together with four chairs. There is
also a bulletin board (4' x 4') used for notices of sale, posting of
jokes, and news items. This 'break' room is open from 6:15 a.m. to
11:15 p.m.
9. On December 9, while making his rounds, George Carpenter,
Avionics first-line supervisor, discovered small cards (approximately 2"
x 3") on the table in this break room. Imprinted on these cards was the
following language:
"Don't You Want To Know?
More about what is going to affect you and your family's
future, after next Wednesday.
COME TO THE HOLIDOME FRIDAY."
Carpenter removed about six of these cards during the day on December 9.
10. The following day, December 10, Carpenter discovered and removed
six more cards which were on the table in the break room. He approached
employee George Leflohic whom he knew to be one of the leading Union
adherents. Carpenter showed the employee the card and asked if he ever
saw it before or knew anything about the leaflet. Leflohic testified he
was afraid to admit any knowledge thereof and therefore he denied any
familiarity with the matter.
While Carpenter and Leflohic were together employee Job Webb joined
them, and Carpenter asked Webb if he knew anything about the aforesaid
card or leaflet. When this employee also denied knowledge thereof, the
supervisor inquired whether it was Union material. Webb replied it had
no Union identification. Carpenter stated that as far as he's concerned
it was a Union item. The employee retorted that it was just an
invitation to go to the Holiday Inn to find out what would affect the
workers and their family; that it was "no big deal". Carpenter replied
that he didn't care what it said, it was the Union, and he did not want
it posted; that if it continued to be found, action would be taken by
him. /9/
11. Record testimony shows that on occasion written material is
placed on the table in the break room with the sanction of management.
Thus, each Friday copies of the "Dandy Dimes"-- a leaflet advertising
various items-- are put in the room either on the table or on top of a
filing cabinet. They are taken by employees quickly and do not remain
for any length of time. Also, the room contains a map of all units
represented by the Union in the National Guard, and a "stack" of other
Union literature (with AFGE letterhead) was placed on the table. The
foregoing items were not removed by management, and Carpenter testified
he allowed the Union literature to remain because he was charged with
neutrality during the campaign.
12. Prior to the election herein several memoranda were distributed
by management to its employees. Each one was signed by Colonel
Hartnett. Four of them were in question-answer form and all of these
notices, except one, referred specifically to the Union election. The
excepted memorandum dealt with the entitlement by employees to Overtime
and Environmental Differential Pay. The remaining notice set forth
details re the forthcoming election, and a few comments were added
concerning the right of employees to vote for or against union
representatives and an encouragement to exercise it on December 15.
13(a). The first memo /10/ issued by the Activity was dated November
12. It contained nine questions, apparently received from employees by
management, together with Hartnett's answers in reply thereto. The
initial questions dealt with inquiries as follows: "What is a 'Petition
of Recognition'?" "What happens next?" "Who is eligible to vote?" and
"What determines if an election is won or lost?" The remaining questions
and answers set forth by Hartnett in this document were as follows:
QUESTION: If a union wins exclusive recognition, do I have to
join?
ANSWER: Federal employees have the right to form, join, or
assist any labor organization or to refrain from any such
activity, freely and without fear of penalty or reprisal, and each
employee shall be protected in the exercise of such rights.
QUESTION: What can I do in support or in opposition to union
organization?
ANSWER: If you are eligible to vote in the election you may:
(1) Vote to insure your desires are expressed.
(2) Solicit membership, support, or oppose a union in non-work
areas (TAGRA or break areas). Both the soliciting employee and
the employee being solicited must be on non-work time (off duty,
break or lunch period).
(3) Distribute union or anti-union literature during non-work
time, but only in non-work areas. Base distribution systems
cannot be used.
(4) Act as representatives or officers of a union.
QUESTION: Are union officials authorized on the base?
ANSWER: Representatives of the union who are not agency
employees generally have no right of access to the premises of the
162TFG.
QUESTION: I am a supervisor and employees ask, "What do you
think about the union"? Can I respond?
ANSWER: A supervisor may express their (sic) personal opinion;
however, supervisors are charged with neutrality and must not
attempt to influence employees decision to vote for or against a
union. An employee cannot be subjected to the threat of reprisal
or coercion from a supervisor.
QUESTION: Is a union good or bad for the 162TFG?
ANSWER: This is for you and only you to decide. I urge you to
weigh all factors, discuss the issues with people you respect,
make up your own mind and vote.
This memorandum ended with Hartnett's statement that the employee should
notify Hartnett of any activity, by supervisor or union agent, which the
employee believed to be an inappropriate act designed to influence his
vote. Further, that the employee's right to express his views, free
from threat or reprisal, is guaranteed by federal law.
(b) The second memorandum /11/ issued by Hartnett was dated December
1. It contained three questions as follows:
QUESTION: Am I entitled to Overtime Pay?
QUESTION: Am I entitled to Environmental Differential Pay if I
work in heat in excess of 103 degrees?
QUESTION: If I am required to work on a holiday, am I entitled
to Holiday Pay?
This document was prefaced by a comment that several interesting
questions re technician entitlements were brought to Hartnett's
attention; that the Commander thought it would be of great interest to
set forth correct answers /12/ to such queries. The memo concluded by
advising the employee that information re these matters is always
available at the Personnel Assistance office; that the employee can
contact the office re technician entitlements or other
employment-related issues.
(c) Another memorandum /13/ issued by management was dated December
6. It set forth the date, place, and hours of the election, together
with the unit of eligible voters as well as the date, time and place for
the counting of the ballots. Hartnett encouraged each employee to vote
for or against union representation and to appear at the polls if there
were any questions re his eligibility.
(d) The fourth document /14/ was dated December 7 and addressed to
all technicians. Hartnett stated at the outset that questions and
answers were included therein to set the record straight and answer
concerns addressed by many technicians. Nearly all the items dealt with
eligibility of certain classes or types of employees to vote in the
election, e.g. a temporary excepted and service employee, an employee
not at work on December 15 but otherwise eligible, and an individual
employed since November 24 but whose name did not appear on the
eligibility list. One question also concerned the failure to receive
overtime pay since it was received at the 161st ARG in Phoenix. The
memo recited that the Guard in Phoenix did not receive such pay. The
remaining question and answer was as follows:
QUESTION: I prefer to not be involved with this union issue,
do I have to vote?
ANSWER: By public law, you have the right to vote or not vote.
However, I encourage you to vote your preference. Voting is your
individual opportunity to express your desires in this matter.
Remember, a simple majority of the votes cast determines the
election results. Example: If only 3 eligible members of the
proposed Bargaining Unit vote-- 2 vote "YES" or "NO," that
majority determines the election results for all members of this
unit."
(e) The final memo /15/ issued to technicians by Hartnett was dated
December 9. It provided the following questions /16/ and answers "to
set the record straight and answer concerns" of the employees:
QUESTION: What will be the rules regarding grooming standards
and wearing of the military uniform should AFGE be certified?
ANSWER: Wearing of the military uniform and grooming standard
could be a subject for negotiation. It should be noted that the
appropriateness of negotiating military uniform versus standard
work attire is currently being considered by the circuit courts.
The union's right to continue to bargain this issue will be
determined by the future rulings of the courts.
QUESTION: If a labor organization is certified to represent
this unit and I choose not to join, will I be affected by the
negotiated agreement?
ANSWER: If a labor organization is certified, the negotiated
agreements apply to all members of the Bargaining Unit.
QUESTION: Can labor organizations negotiate over such things
as military promotions, the Military Weight Control, or Special
Promotion programs?
ANSWER: No. Labor organizations are prohibited from
negotiating over all military issues by Public Law (Title 10, U.S.
Code).
QUESTION: I'm told that if a labor organization is certified,
we will see an immediate change in TDY policies and entitlements.
Is this correct?
ANSWER: Policies regarding TDY entitlements will not change,
as TDY's are based on actual mission requirements. Entitlements
while in a TDY status are defined and disbursements made in
accordance with provisions of the Department of Defense (DOD)
Joint Travel Regulations (JTR). Any changes of these entitlements
will be through the Per Diem, Travel, Transportation and Allowance
Committee, per Public Law 85-272.
14. George Leflohic was an active Union adherent who participated in
its organizational campaign. He solicited signatures of employees to
join the Union, and he distributed cards in the break room of the
Avionics branch announcing that a meeting would be held at the Holiday
Inn before the election.
On December 17, after the election, Leflohic was notified by his
supervisor, Ernest Payne, that Major Michael Smith, Assistant Chief of
Maintenance, wanted to talk with him. The employee met with Smith at
about 10:45 A.M. on that date in the conference room. Record facts show
the meeting was called because Smith knew that Leflohic and Jon Webb
were the two persons who played a prominent role, and were the leaders,
in the organizational activity of the Union and he wanted to repair the
division within the bargaining unit. Smith commenced the discussion by
stating he wanted to clear the air and they needed to talk. /17/
Whereupon he stated to Leflohic that unions had no place in a military
organization; that Leflohic had "crossed the line" and was a highly
visible person whose "name would always stick out". The employee
testified Smith said he would not be watching Leflohic but the latter
had stepped out in front of 91 people and would have to do what is
proper. Leflohic replied he always had and always would do so. Smith
also stated he spent a lot of time in opposition to the Union, that he
was not against unions but they don't work in a military environment.
15. Major Smith also called Jon Webb, an electronics mechanic, to
the conference room on the morning of December 17. He stated /18/ that
they had been through long, arduous months of the Union organization and
it was time to heal the wounds so they could get back to work. Upon
being asked where his loyalties lay, Webb replied they were with the
United States, Arizona and the people with whom he worked. Webb
inquired why just he and Leflohic were being spoken to, and Smith said
they had crossed the line and made themselves visible. Further, the
Major stated they should watch themselves closely in military
obligations and civilian employment; that whenever their names came up
in conversations or correspondence, he couldn't help remember that they
were involved in the Union drive.
The said supervisor also told Webb that, as far as he was concerned,
unions were a waste of taxpayers' money and had no place in the National
Guard. Smith further mentioned that he and Major Bill Berg, his
counterpart at the Air Guard unit in Phoenix, spent three to four months
wasting time fighting the union efforts each year. Webb replied that he
would always disagree with Smith on whether unions properly belong in
the National Guard.
Conclusions
I. Alleged Unfair Labor Practice
Case No. 8-CA-30099
It is asserted by General Counsel that the statements made by Colonel
Hartnett on December 10, 1982 constituted interference, restraint, and
coercion under Section 7116(a)(1) of the Statute. In its brief the
General Counsel maintains that the Commander's remarks at the meeting on
that date was an infringement of employees' right to form, join, or
assist a labor organization, or to refrain from such activity, as
enunciated by Section 7102 of the Statute. In this respect, and in
support thereof, it cites Department of the Air Force, Air Force Plant
Representative Office, Detachment 27, Fort Worth, Texas, 5 FLRA No. 62
(1981).
A review of the existent law relating to permissible statements made
by an employer in the public sector reveals a "free speech" provision
bounded by several limitations. The applicable statutory provision in
this respect, Section 7116(e), provides as follows:
(e) The expression of any personal view, argument, opinion or
the making of any statement, which--
(1) publicizes the fact of a representational election and
encourages employees to exercise their right to vote in such
election,
(2) corrects the records with respect to any false or
misleading statement made by any person, or
(3) informs employees of the Government's policy relating to
labor-management relations and representation,
shall not, if the expression contains no threat of reprisal or
force or promise of benefit or was not made under coercive
conditions, (A) constitute an unfair labor practice under any
provision of this chapter, or (B) constitute grounds for the
setting aside of any election conducted under any provisions of
this chapter.
In interpreting the purpose and intent of the foregoing language, the
Authority concluded, in agreement with Judge Devaney, that the said
intent is two-fold. First, Section 7116(e) was designed to assure
neutrality in representation elections. Second, outside of such
elections, it purported to protect the expression of personal views,
arguments or opinions by management or other person provided the
expression does not contain any threat of reprisal or force or promise
of benefit or was not made under coercive conditions. Oklahoma City Air
Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, 6 FLRA No. 32
(1981). Thus, the touchstone of finding such views to constitute
interference under Section 7116(a)(1) of the Statute is that they be
coercive in nature. The Authority has adhered to this interpretation of
the "free speech" provision, as set forth above, and refused to find a
violation unless such expressions were made under coercive conditions.
Moreover, any such statements must be construed as an expression of
personal views rather than a statement of agency management. See Army
and Air Force Exchange Service (AAFES), Ft. Carson, Colorado, 9 FLRA No.
69 (1982); Norfolk Naval Shipyard, Portsmouth, Virginia, 5 FLRA No. 105
(1981).
In the case at bar the Complaint alleges that, in his speech to
employees, Colonel Hartnett suggested to employees that a union was
unnecessary or undesirable since the Guard was one big happy family and
did not need outside influences; that the Union officials acted in poor
taste or in an underhanded manner in distributing union election
material. As such, it is contended these statements constituted
interference, restraint or coercion.
The foregoing findings of fact, however, reflect that Hartnett,
although he reminded the employees to vote in the forthcoming election,
did not suggest that outside influences were not needed as they were one
big happy family. It is true that the Commander did state he was
disappointed at the distribution of literature by the Union; that it
demonstrated a lack of good faith since an agreement had been made
between the parties not to campaign on the premises. Nevertheless, I do
not construe these statements as containing any threat-- express or
implied-- or being coercive in nature. Hartnett's comments reflecting
his disappointment and that he deemed the Union to have acted in bad
faith, stemmed from his understanding that the labor organization had
distributed literature after having agreed not to do so. These
statements were not calculated, in my opinion, to interfere with the
free choice of the employees in selecting their representative as
guaranteed under Section 7102 of the Statute. Accordingly, I conclude
they were not violative of Section 7116(a)(1) and recommend dismissal of
paragraphs 4(a) and (b) of the Complaint herein. /19/
Case No. 8-CA-30098
An issue is presented as to whether the comments by Major Smith to
George Leflohic and Jon Webb on December 17, after the election was
held, can be deemed interference under the Statute. Respondent takes
the position they were innocuous statements as best, and represented an
attempt by the supervisor to "clear the air" of tensions resulting from
the campaign and election. It characterizes the meetings with these two
employees as non-intimidating, and Respondent insists the conversations
were merely an exchange of views and personal opinions.
Upon careful consideration I am persuaded that certain statements
made to Leflohic and Webb by Smith, as alleged in paragraph 5(a) of the
Complaint, were impliedly coercive in nature. /20/ The remarks were
made by a management official, who was opposed to union representation
at the Guard, to two employees who were known by the official to be
prominent in their advocacy of the Union. His statement to these
individuals that they had "crossed the line" and were "highly visible"
can scarcely be viewed as perfunctory remarks. This is self-evident
where it is also noted that the Major told Leflohic's name would always
"stick out", that the supervisor also told Webb that whenever the names
of these employees came up in conversations or correspondence, Smith
could not help but remember they were involved in the Union drive.
While Respondent maintains that Smith's purpose in talking to the two
individuals was merely to reestablish peaceful and harmonious relations,
the Authority has held that, as in the private sector, the subjective
intent of the speaker is not determinative as to whether interference
occurred. The standard is whether, under the circumstances, an
employer's conduct may reasonable tend to coerce or intimidate an
employee. Federal Mediation and Conciliation Service, 9 FLRA No. 31
(1982), citing Russell Stover Candies, Inc. v. N.L.R.B. 551 F.2d 204
(8th Cir. 1977).
In evaluating the comments made by Smith to employees Leflohic and
Webb, it seems clear that the statements were perforce intimidatory.
These employees were prominent union leaders and the supervisor was
opposed to union representative at the agency. Accordingly, statements
which inform them that the supervisor will remember their Union activity
when their names came up in conversations or correspondence are
necessarily coercive in nature. But Leflohic and Webb may reasonably
feel threatened since the implication of Smith's remarks is that their
unionism will bear upon future considerations of them by management. It
is a threat, however veiled, that the employer's treatment of these
employees may well be influenced by their involvement in the Union
drive. As such, these statements suggest their union activity will be a
negative factor in any evaluation of them. Accordingly, they constitute
interference, restraint or coercion in violation of Section 7116(a)(1)
of the Statute. See U.S. Customs Service, Region IV, Dept. of Treasury,
Miami, Florida /21/ A/SLMR No. 764.
It is also insisted by General Counsel that, as alleged in paragraphs
5(b) and (c) of the Complaint, Smith stated to employees on December 17
that (a) unions have no place in the National Guard, (b) unions are a
waste of taxpayers' money. While I have found that the supervisor made
such statements, I conclude they were not made under coercive
conditions. Apart from the fact that they may well represent personal
views or opinions in contradistinction to agency policy, they were not
accompanied by any threat or penalty or reprisal. Nothing in said
comments may reasonably be construed as interfering with the rights of
employees to freely join or assist a labor organization. Section
7116(e) of the Statute clearly protects statements as these, supra,
which are not coercive or intimidating in effect. Oklahoma City Air
Logistics Center (AFLC), Tinker Air Force Base, Oklahoma, supra,
(involving similar statements made by a supervisor to employees).
Accordingly, I conclude that the statements made by Smith to Leflohic
and Webb, as set forth in 5(b) and (c) of the Complaint were not
violative of the Statute.
II. Objections to the Election
Objection No. 6
The Union herein maintains that, prior to the election, the Activity
disallowed the distribution of union literature in non-work areas. By
preventing the Union from distributing its literature on December 9 and
10 the employer is charged with interfering with the gree choice of the
voters, and it is urged that the objection thereto warrants setting
aside the results of the election.
In both the private and public sectors an employer may not ban union
solicitation or distribution of campaign materials in non-work areas and
at non-duty hours. Such action by management, unless unusual
circumstances exist, will be deemed an interference with the right of
employees to form, join, or assist a labor organization. /22/ Le
Tourneau Co. of Georgia v. N.L.R.B., 124 U.S. 791 (1945); Charleston
Naval Shipyard, A/SLMR No. 1 (1970); Internal Revenue Service, North
Atlantic Service Center, 7 FLRA No. 92 (1982). As such, this control of
union distribution of campaign material would be sufficient, when an
objection is interposed, to overturn the results of an election held
thereafter.
Record facts in the case at bar disclose that the 2" x 3" cards
distributed on December 9 and 10 were Union material announcing the
holding of a meeting prior to the election. While the announcement made
no reference to the Union herein nor was identified with the
organization, Carpenter believed the material related to the Union and
had been distributed on its behalf. Moreover, he told the employees
that, as Union literature, he did not want it posted at all. Although
management insists the 'break' room is a work area, and thus no election
material should be distributed thereat, I am persuaded that, for the
most part, that room is a non-duty area. This conclusion seems
warranted since there is found therein various items customarily placed
in a non-work room: a refrigerator, coffee pot, and machines for soda
and candy.
Under the usual circumstances which prevail prior to an election, the
action of management in banning the Union material (2" x 3" cards)
herein would, in my opinion, suffice to be labeled objectionable conduct
which interfered with the voters' choice. /23/ However, I am
constrained to conclude that certain conduct on the part of the Union
precludes a finding that the Activity's removal of the cards from the
break room was objectionable conduct. Such constraint is based on the
Union's pre-election agreement not to campaign on the Base in advance of
the election itself. Having waived its right to carry on such a
campaign-- and I construe the distribution of literature as part of any
union campaign-- the Activity would be within its rights to remove any
material placed on the premises. Accordingly, I am satisfied that,
having agreed not to campaign on the Base, the Union may not validly
object to the Activity's removal of literature before the election.
Therefore, I recommend that this objection be overruled and dismissed.
Objection No. 10
This particular objection is addressed to the release by management
of pre-election bulletins which, by inference, suggested negative
aspects of unionism. The Activity contends that the bulletin did not
constitute a no-union campaign; that the material contained true
representations of fact or law; and no evidence was adduced which
indicated that the results of the election were affected thereby.
The guidelines in regard to pre-election conduct which is either
permissible, or sufficiently objectionable to set aside an election, are
found in Section 7116(e) of the Statute. As heretofore indicated, that
statutory provision permits the expression of any personal view,
argument, or opinion if it (a) publicizes the election and encourages
employees to vote, (b) corrects any false or misleading statement made
by anyone, (c) informs employees of the Government's policy re
labor-management relation and representation.
In tracing the origin of 7116(e) based on its legislative history
Judge Devaney set forth in Oklahoma City Air Logistics Center (AFLC),
Tinker Air Force Base, Oklahoma, supra, the Conference Report (No.
95-1717, 95th Cong., 2nd Sess.). It is stated therein that, after a
compromise between the Senate and House bills, it was intended that the
wording of the applicable provision would reflect the policy of the
Civil Service Commission on what statements agencies may make during an
election and the codification of case law under Executive Order 11491,
as amended, on the use of statements in any unfair labor practice
proceedings (Leg. History, p. 824). Whereupon Judge Devaney concluded,
in the cited case, that statements by agency management in relation to
representational elections are protected only if such statements (1)
publicizes the fact of an election and encourages employees to vote, (2)
corrects the record re false or misleading statements, (3) informs
employees of Government's policy re labor-management relations and
representation. Although the aforesaid case did not involve objection
to an election but concerned, inter alia, a sueprvisor's statements
alleged as being coercive, the Authority adopted Judge Devaney's
reasoning and analysis of 7116(e).
Subsequently the Authority had occasion to rule on the applicability
of the aforesaid Section of the Statute where objections were filed to
the results of a representation election based on prior statements of a
supervisor. See United States Department of Justice, United States
Immigration and Naturalization Service, et al., 9 FLRA No. 36 (1982).
The Authority expressly stated therein that an agency is restricted in
its expressions to employees prior to elections. /24/ More
specifically, it declared as follows:
"As it pertains to representation elections, section 7116(e) of
the Statute limits the type of statements that may be made by an
agency management during an election campaign. Thus, management
may make statements encouraging employees to vote in elections,
correcting the record where false or misleading statements are
made, or conveying the Government's views on labor-management
relations."
It thus becomes clear that, as interpreted by the Authority,
pre-election statements by management must fall within the confines of
7116(e) of the Statute to be labeled permissible. Moreover, those
statements embraced under the three allowable categories therein must
contain no threat, promise of benefit, or be coercive in nature.
Statements by the agency which do not publicize the election and
encourage voting, correct false or misleading statements, or set forth
Government policy re labor-management relations, are impermissible and
violate the sticture of neutrality.
Turning to the material distributed by the Activity herein prior to
the election, it seems apparent that the memos of November 12, December
1, and December 9, contain material not sanctioned by the Statute. /25/
It is true that the statements made therein, which are in the form of
answers to questions, are correct as to law or policy, and they neither
promise benefits not threaten employees in regard to their voting in the
election. Nevertheless, they do concern themselves with the Union
herein and the election thereafter scheduled. Thus, the November 12
memo refers to such items as whether (a) employees have to join the
Union if the latter wins the election, (b) Union officials may come on
the Base, (c) a Union is good or bad for the Guard. The December 7 memo
contains a question as to whether an employee, who prefers not to be
involved in the Union, is required to vote. Management replies that he
may vote or not, but it urges him to vote his preference since a
majority vote determines the result of the election. Finally, the
December 9 memo sets forth certain effects upon employees if the Union
is certified or an agreement negotiated, subjects permitted for
negotiation by the Union, and TDY entitlements if the Union is
certified.
Although the Activity herein may not have intended to interfere with
the freedom of choice of the voters, they have overstepped the
boundaries of permissible conduct under the Statute. It is apparent
that, in seeking to impose strict neutrality upon an agency in a
representation election, Congress confined management's pre-election
statements as aforesaid. Upon making statements concerning employees'
rights both before the election, and thereafter if the Union is
certified, the Activity has neither publicized details re the election,
nor corrected mistakes of records, nor set forth Government policies re
labor-management relations. The same is true with respect to statements
by the agency re the subject matters which the Union may negotiate with
management upon certification. Moreover, urging an employee to vote his
preference after the latter has allegedly declared he did not want to
get involved with the Union, must necessarily be viewed as a subtle
attempt to solicit a vote against the Union.
Apart from management's intentions re influencing the voters, and the
absence of any express threat or coercion, I am constrained to conclude
that the Activity has not observed the bounds of neutrality; that the
various pre-election memos-- as referred to supra-- contain statements
exceeding the scope of 7116(e) of the Statute; and that, as a result,
they interfered with the free choice of the voters in the December 15
election. Accordingly, I recommend that Objection No. 10 herein be
sustained.
Objection No. 13
This objection is based on Colonel Hartnett's allegedly stating, at
the December 10 meeting, that they were all one big happy family and no
outside influences were needed. As I have found that no such statements
were made at that meeting, no support exists for this particular
objection. Accordingly, I recommend that Objection No. 13 be dismissed.
Having found in Case No. 8-CA-30098 that Respondent violated Section
7116(a)(1) of the Statute, I recommend the Authority adopt the following
order:
ORDER
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, it is hereby ordered that the 162nd Tactical Fighter Group,
Arizona Air National Guard, Tucson, Arizona, shall:
1. Cease and desist from:
(a) Interfering with, restraining or coercing its employees by
impliedly threatening them with reprisal because of their
activities on behalf of American Federation of Government
Employees, Local 2924, AFL-CIO, or any other labor organization.
(b) 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 affirmative action in order to effectuate the
policies of the Statute:
(a) Post at its facilities at the 162nd Tactical Fighter Group,
Arizona Air National Guard, Tucson, Arizona, 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, and shall be posted and
maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Commander to ensure that such notices are not altered,
defaced or covered by any other material.
(b) Pursuant to Section 2423.29 of the Rules and Regulations
notify the Regional Director, Region 8, of the Federal Labor
Relations Authority, in writing, within 30 days from the date of
the Order, as to what steps have been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: August 31, 1983
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
STATUTE We Hereby Notify Our Employees That:
WE WILL NOT interfere with, restrain or coerce our employees by
impliedly threatening them with reprisal because of their activities on
behalf of American Federation of Government Employees, Local 2924,
AFL-CIO, or any other labor organization.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations 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 8, whose address is: 350 S. Figueroa Street, Los Angeles,
California, 90071, and whose telephone number is: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent contends that the General Counsel's brief in
support of its exceptions does not comply with section 2423.28(a)(3) of
the Authority's Rules and Regulations, and requests that it be given
"minimal consideration." We find that the General Counsel's brief is in
substantial compliance with our Rules and Regulations and the request is
therefore denied.
/2/ The Charging Party excepted to certain credibility findings made
by the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/3/ These comments were not the subject of objections to the
election.
/4/ The alleged statements made by the Commander in this particular
objection are also alleged in the Consolidated Complaint to constitute
an unfair labor practice in violation of Section 7116(a)(1) of the
Statute.
/5/ Union agent Coiro testified that, at this meeting to establish
the ground rules for the election, he stated that no Executive Board
official of the Union (who are employed at Davis-Monthan Air Force Base)
would campaign on the installation; that the Union would not post
literature on official bulletin boards during the campaign. Both Kyzer
and De La Vara deny this version and that any reference was made to
bulletin boards. Based on the record as a whole, and the plausibility
of the testimonies, I accept and credit the versions given by Kyzer and
De La Vara as set forth hereinabove.
/6/ Unless otherwise indicated, all dates hereinafter occurred in
1982.
/7/ There are about 50 bulletin boards throughout the Base. Record
testimony reflects that none are designated as "unofficial" bulletin
boards, and no differentiation is made between "official" and
"unofficial" ones.
/8/ Several witnesses testified to the statements made by Commander
Hartnett at this "How Goes It" meeting. Each presented different
versions of what was said by him in regard to the Union. Moreover,
inconsistencies exist among testimonies of witnesses adduced by both
parties. While some evidence was adduced by the Union that Hartnett
stated they were "one big happy family" and did not need outside
influences, the witnesses who testified thusly did not recall the
meeting and the discussion with clarity. The same witnesses also
testified the Commander remarked that the Union acted in an underhanded
manner; that no union was needed and has no place in the National
Guard. I find and conclude no such comments were made by Hartnett at
the December 10 meeting. The undersigned credits the version of
Hartnett set forth above, supported for the most part by Antonio
Perolta, Bill Sugin, Rita Frey, Brian Gallagher and Karen Lamb, as more
reliable.
/9/ Carpenter testified that he assumed that the card was Union
related despite the absence of any identification and the denials of
Leflohic and Webb. His testimony also reflects that if the cards had
contained a Union letterhead he would have allowed them to remain.
Based on his 'assumption' and his remarks to the two employees, I cannot
draw the conclusion that Carpenter would have let Union cards be
distributed.
/10/ U Exhibit 2.
/11/ U Exhibit 3.
/12/ Each question was answered with reference to the existing law or
regulation governing the subject matter.
/13/ U Exhibit 4.
/14/ U Exhibit 5.
/15/ U Exhibit 6.
/16/ Excepted from said list of questions-answers set forth by the
undersigned, but included in this particular memo, is the one relating
to which individuals of the 162nd are included in the proposed
bargaining unit.
/17/ While the conversation between these two individuals included
other items, the undersigned has excluded these matters which have no
bearing on the issue of alleged interference as alleged in 5(a) of the
Complaint herein. The facts set forth in respect thereto represent the
credited version of the conversation. Note is taken that while Smith
denied stating he would be watching Leflohic, no denial appears in the
record regarding the other statements which the employee testified were
made by the Supervisor. Moreover, Leflohic's testimony was direct and
with more exact recall.
/18/ The details of the discussion bearing on the issue of
interference, as set forth herein, are the credited version thereof.
They represent the more direct and reliable testimony which, in regard
to certain essentials, remained uncontradicted.
/19/ The undersigned is mindful that the Authority has found
statements to run afoul of 7116(a)(1) where the same statements were
sufficient to set aside an election. Where such statements interfered
with a free choice of voters in an election they were held to constitute
interference under 7116(a)(1) of the Statute. Department of the Air
Force, Air Force Plant Representative Office, Detachment 27, Fort Worth,
Texas, et. al., 5 FLRA No. 62 (1981). Since the statements by Hartnett
herein were also alleged as objectionable conduct to this election
(Objection No. 13), they could be deemed 7116(a)(1) interference if also
found sufficient to set aside said election. However, and as
hereinafter set forth, the undersigned concludes Hartnett's expressions
did not per se exceed the permissible limit of 7116(e) so as to warrant
setting aside the election herein.
/20/ While these statements do not exactly track the allegations in
paragraph 5(a) of the Complaint, I am satisfied the allegations therein
are sufficient to embrace the findings and conclusions in regard
thereto.
/21/ While this case arose under Executive Order 11491, as amended,
the same standard exists under the Statute in determining the coercive
effect of such remarks to employees.
/22/ The correlative right of employees i s found in Section 7102 of
the Statute.
/23/ The fact that other Union literature was not removed from the
break room does not justify a different conclusion. Reasons could well
have existed for the non-removal by Carpenter or other supervisors of
such items.
/24/ In the cited case the statements were made by an instructor whom
the Authority found was neither a supervisor nor a management official.
Accordingly, and on that ground, it dismissed the objection.
4 /25/ The December 1 memo is not patently referable to the election or
the Union. Further, the December 6 memo publicizes the forthcoming
election and encourages employees to vote-- all as permissible under
7116(e).