[ v22 p122 ]
The decision of the Authority follows:
22 FLRA No. 11 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 (18 FLRA No. 73) DECISION AND ORDER ON MOTION FOR RECONSIDERATION I. Statement of the Case This matter is before the Authority on a motion by the Charging Party/Petitioner for reconsideration of a portion of the Authority's decision in 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson, Arizona, 18 FLRA No. 73 (1985). II. The Authority's Decision On June 21, 1985, the Authority issued its Decision and Order in the above-entitled consolidated proceeding. The Authority found that: (1) the objections to the election in Case No. 8-RO-30002 of the consolidated proceeding were all without merit; (2) certain comments made by the Respondent's Commanding Officer in Case No. 8-CA-30099 did not constitute a violation of section 7116(a)(1) of the Statute; and (3) certain remarks made by a management official of the Respondent in Case No. 8-CA-30098 were violative of section 7116(a)(1) of the Statute. In reaching its conclusion with respect to Case No. 8-CA-30099, the Authority found as follows: 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/ (3) These comments were not the subject of objections to the election. III. The Motion for Reconsideration By timely motion dated July 3, 1985, the Charging Party/Petitioner (the Union) seeks reconsideration of the Authority's decision as it pertains to Case No. 8-CA-30099 and to a portion of Case No. 8-RO-30002, contending that the Authority's decision in certain respects was based upon an error in its findings of fact. The Union argues that the Commanding Officer's statement in Case No. 8-CA-30099 could not have been meant to "correct the record" within the meaning of section 7116(e) of the Statute /*/ because the statements that the Authority found the Commanding Officer was correcting (as noted above) had not yet been made at the time he held the December 10 meeting with the employees. The Union further argues that the Authority should thus find a violation in Case No. 8-CA-30099, and should further sustain Objection No. 13 in Case No. 8-RO-30002, as the conduct in Case No. 8-CA-30099 is properly a part of this objection. Section 2429.17 of the Authority's Rules and Regulations provides, in part, that a "party . . . who can establish . . . extraordinary circumstances . . . may move for reconsideration" of an Authority decision. Upon review of the Union's motion, the Authority concludes that reconsideration of the decision as it pertains to Case No. 8-CA-30099 should be granted, as review of the record shows and we now find that in fact certain comments made by Union supporters to supervisor Carpenter, and relied upon by the Authority in reaching its original conclusion, were made subsequent to the Commanding Officer's December 10 meeting with the employees, thus calling into question the basis for the Authority's original conclusion. IV. Analysis on Reconsideration A. Case No. 8-CA-30099 The complaint in Case No. 8-CA-30099 alleged that the respondent's Commanding Officer made certain statements at a meeting of its employees five days before an 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, and (2) that the Union officials acted in poor taste or in an underhanded manner in distributing union election material, and the Authority reaffirms its adoption of 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, however, that the statement did not violate section 7116(a)(1) of the Statute. In its decision, the Authority, noting certain statements made to one of management's supervisors, found that the Commanding Officer's comments at the December 10 meeting with regard to the distribution of union literature were permissible under section 7116(e) of the Statute, because such comments served to "correct the record," and therefore did not violate the Statute. A review of the record shows that the statements the Authority noted in reaching its conclusion were in fact made after the Commanding Officer's December 10 meeting and therefore could not serve as the justification for the Commanding Officer's statements. However, upon review of all the facts in this case, we again conclude that the Commanding Officer's comments did serve to "correct the record." The Authority notes, as found by the Judge, that: (1) the Union, by a pre-election agreement, waived its right to distribute campaign literature on the base during the election campaign; (2) after the parties reached that agreement Major Kyzer, a representative of management, advised the Commanding Officer of the Union's agreement; (3) despite the agreement, management discovered that campaign literature, on behalf of the Union, had been posted on bulletin boards and walls throughout the base prior to the election; (4) Major Kyzer notified Union President Michael Coiro that campaign literature had been so posted; (5) Coiro advised Kyzer that the literature would be removed, and it was removed by Union and management representatives; (6) Coiro disclaimed Union authorization of or responsibility for the posting. Beyond the Judge's findings, the undisputed record evidence also reveals that: (1) Kyzer, following his conversation with Coiro, advised the Commanding Officer of the results of this conversation, including Coiro's disclaimer; (2) the literature (examples of which are in evidence) was clearly "official" AFGE literature, containing the official AFGE logo and other Union identifiers; (3) employee Jon Webb, who was very active in supporting the Union's campaign, posted the AFGE literature referred to above, along with other employees; and (4) Webb had been given that literature by Union President Coiro for the purpose of distribution and/or posting at various break room locations on the base. The Commanding Officer, in response to a question at the hearing concerning why he had mentioned anything to employees at the December 10 meeting regarding the campaign agreement, stated in part: There were voluntary statements made by . . . people representing the Union side that there would not be campaigning on the base. (Given such) (w)e had not expected that there would be campaigning on the base. And then, just short of that Friday, the 10th of December, I saw a great escalation of Union literature appearing about the base. I was concerned about it, given the fact that there had been a statement there would not be campaigning on the base. . . . I mentioned that I was disappointed . . . that the agreement essentially was that there would not be, and . . . there was, and I thought that demonstrated a lack of good faith on the Union's part. When shown the examples of the AFGE literature in evidence, the Commanding Officer testified that that was the type of literature he had seen appearing with increasing frequency about the base. Additionally, the Commanding Officer stated, in response to a question, that he did not indicate at the Decmber 10 meeting that the Union may have had a different understanding of the agreement because he believed that the Union had the same understanding of the agreement as he did; that he based this position on his discussion with Kyzer, who had been directed by the Commanding Officer to contact the Union and who, after doing so, informed the Commanding Officer that the Union "said that they were wrong" and the literature "would come down." It is clear, then, that the Commanding Officer knew of the Union's agreement not to campaign, knew and observed that seemingly official Union literature had been posted around the base, and knew of the Union's disclaimer of responsibility. In these circumstances, the Authority finds that the Commanding Officer had a basis for making the comments with regard to the distribution of literature. The Authority concludes that the Commanding 'officer's comments served to "correct the record with respect to (a) false or misleading statement made by any person" specifically with respect to the Union's disclaimer of responsibility for the distribution of campaign literature in the face of its agreement not to do so. In view of the additional record facts set forth above, it is apparent that had Coiro not supplied Webb with the Union literature, albeit for limited distribution, it would not have been posted throughout the base. Under these circumstances, Coiro's disclaimer of the Union's responsibility for or authorization of the literature in question was at best misleading. B. Case No. 8-RO-30002 (Objection No. 13) We originally found that the comments that are the subject of Case No. 8-CA-30099 were not the subject of any of the objections to the election, and we are not presented with anything by this motion for reconsideration that would warrant reconsideration of that original decision. V. Conclusions A. Case No. 8-CA-30099 Accordingly, as the Commanding Officer's comments were permissible under section 7116(e) of the Statute, the Authority reaffirms its conclusion that the comments did not violate section 7116(a)(1)of the Statute. B. Case No. 8-RO-30002 (Objection No. 13) Accordingly, the instant motion for reconsideration as it pertains to Case No. 8-RO-30002 (Objection No. 13) is denied, and the Regional Director is again directed to take further appropriate action consistent with this decision. 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 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 hereiwth. 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 10, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) Section 7116(e) 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 of 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. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT interfere with, 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 organizations. 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, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 798-3805.