[ v34 p480]
The decision of the Authority follows:
34 FLRA NO. 81 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1931, AFL-CIO NAVAL WEAPONS STATION CONCORD CONCORD, CALIFORNIA (Respondent) and MARC S. CARPENTER AN INDIVIDUAL (Charging Party) 9-CO-70001 DECISION AND ORDER January 22, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Administrative Law Judge's Decision. The Respondent filed on opposition to the General Counsel's exceptions. The complaint alleged that the Respondent, acting through its president, violated section 7116(b)(1) of the Federal Service Labor - Management Relations Statute (the Statute) by causing the Assistant Fire Chief at the Department of the Navy's Naval Weapons Station Concord (the Agency) to convey a threat to Marc Carpenter, a bargaining unit employee. Additionally, the complaint alleged that the Respondent violated section 7116(b)(2) by causing or attempting to cause the Agency to discriminate against Carpenter. We conclude, in agreement with the Judge, that the complaint should be dismissed. However, we reach our conclusion for different reasons from those stated by the Judge. II. Background On September 19, 1986, Marc Carpenter, a lead firefighter with the title of Fire Captain, called a crew meeting. A few days after the meeting, a steward reported to Union President James Wright that a bargaining unit employee complained that "'Marc Carpenter had assembled the workers together during the morning shift and informed them that the Union was not going to help (employee) Tracy Gilmour or any other employee in the Fire Department.'" ALJ Decision at 4, citing Transcript at 96. The Judge found that Carpenter called the crew meeting because the discharge of firefighter Gilmour had resulted in a morale problem among the crew. ALJ Decision at 4. During a telephone conversation, Union President Wright told Assistant Fire Chief Raymond Gilmore that one of his lead firefighters was making anti-union statements. The Judge found that Wright described the statements as "'bad-mouthing the Union, talking against the Union.'" ALJ Decision at 5, citing Transcript at 40. According to Gilmore's testimony, Wright asked Gilmore if Gilmore could talk to the lead firefighter who was making the remarks. Gilmore also testified that Wright told Gilmore that Wright would like the anti-union remarks stopped. At Gilmore's request, Wright identified Carpenter as the lead firefighter who made the statements. In addition, the Judge found that Wright said that unless the anti-union remarks stopped, Wright would "'start pushing papers.'" ALJ Decision at 6, citing Transcript at 41. The Judge specifically did not find that Wright "made any reference whatever as to whom, or as to what, he referred in his 'pushing papers' comment." ALJ Decision at 7. After the telephone conversation with Wright, Gilmore called Carpenter to his office. The Judge found that Gilmore told Carpenter that "if he (Carpenter) didn't stop bad-mouthing the Union, Wright was going to start pushing papers." ALJ Decision at 8. Following this conversation, Carpenter filed the unfair labor practice charge which led to the complaint in this case. III. The Judge's Decision The Judge found that Carpenter was not a supervisor under section 7103(a)(10) of the Statute and that fire captains are part of the bargaining unit at Concord and have served as Union stewards. ALJ at 3. He found that, as a fire captain, Carpenter neither hired nor recommended who is to be hired; did not promote or recommend for promotion; did not have authority directly to discipline employees; had no involvement in handling grievances; and had no authority to grant leave. Id. The Judge noted, however, that, as a fire captain, Carpenter conducted morning muster, gave instructions and work assignments to crew members, gave orders, reported on his crew's performance, and led the engine company in an emergency situation until an assistant fire chief or the fire chief arrived. Nevertheless, the Judge found that although fire captains perform duties which would make them supervisors, they do not devote a preponderance of their employment time to the exercise of such supervisory authority which is required by the concluding portion of section 7103(a)(10) of the Statute. The Judge considered Authority decisions in which fire captains were held not to be supervisors under the Statute. Noting that there was nothing to distinguish Carpenter's duties from the duties of the fire captains considered by the Authority, the Judge concluded that Carpenter was not a supervisor within the meaning of the Statute. ALJ Decision at 4. Although the Judge concluded that Carpenter was not a supervisor, he found that "from time to time (Carpenter) does engage in supervisory activity." ALJ Decision at 9. Specifically, the Judge found that Carpenter "exercised supervisory authority" when he called the crew meeting on September 19, 1986, addressed the crew, and "bad-mouthed" the Union at the meeting. Id. Therefore, the Judge concluded that while discharging a supervisory function, Carpenter had no protected right under section 7102 of the Statute to make anti-union comments. Consequently, the Judge found that the Union's demand that such conduct be stopped did not interfere with a protected right under the Statute and did not violate section 7116(b)(1) and (2). The Judge also considered whether Carpenter's statements were protected by section 7116(e) of the Statute. According to the Judge, nothing in the record indicated that Carpenter expressed a personal view, argument, or opinion in his comments about the Union. The Judge also found that Carpenter made his remarks under coercive conditions. ALJ Decision at 9. The Judge concluded that anti-union statements by a person acting in a supervisory capacity at a meeting called by that person interfered with the employees' protected rights to form, join, or assist any labor organization freely and without fear of penalty or reprisal. Thus, the Judge concluded that because Carpenter's statements were not protected by section 7116(e), the Union's request that such conduct be stopped did not violate either section 7116(b)(1) or (2) of the Statute. ALJ Decision at 10. IV. Positions of the Parties A. The General Counsel's Exceptions The General Counsel argues that regardless of the context of Carpenter's statements at the September 19 meeting, Carpenter is an "employee" within the meaning of section 7116(b) and not a supervisor under the Statute. The General Counsel asserts that Authority precedent requires this conclusion. Further, the General Counsel notes that the 1985 representation election agreement placed the lead firefighters in the bargaining unit. Exceptions at 2. Thus, the General Counsel argues that because fire captains are employees as defined in section 7103(a)(2) of the Statute they are covered by the protections of section 7116(b)(1) and (2) of the Statute. The General Counsel argues that the Judge's decision that Carpenter was acting in a supervisory capacity when he met with his crew on September 19 would have a chilling effect on employees' exercise of statutory rights. According to the General Counsel, if employees temporarily or occasionally perform supervisory functions, they would be required to guess whether they have statutory protections at a given time. Exceptions at 4. Furthermore, the General Counsel argues that the evidence suggests that the meeting Carpenter held with his crew was outside any supervisory function that he occasionally performed as a lead firefighter. Id. The General Counsel notes that Carpenter called the meeting without any direction from management, no management official was at the meeting, and no evidence was presented as to what Carpenter said at the meeting. Additionally, the General Counsel argues that Carpenter's statements at the September 19 meeting were not made in coercive conditions and were Carpenter's personal opinion. The General Counsel notes that the Judge cited nothing to support his views that the meeting was coercive and that Carpenter's remarks were not his opinion. Finally, the General Counsel argues that the Judge's discussion of section 7116(e) is inappropriate as that section is relevant only when deciding whether a statement is an unfair labor practice or a statement of personal views. B. The Respondent's Opposition to the General Counsel's Exceptions The Respondent argues, in support of the Judge's decision, that Carpenter was performing a supervisory role on September 19 when he made his anti-union comments. Respondent's Opposition at 6. The Respondent points out that Carpenter performs a variety of supervisory duties as a fire captain. Specifically, the Respondent notes that as part of a captain's responsibility to instruct other firefighters, he occasionally will conduct meetings during the course of a shift at which time he will give supervisory instructions. Id. at 2-3. The Respondent asserts that Carpenter was using his supervisory powers when he called his crew together on September 19, 1986, and made the anti-union comments. Furthermore, the Respondent argues that Carpenter spoke to a "captive audience." Id. at 6. The Respondent notes with approval the Judge's statement that he has "reservations about engagement in anti-union activity by any person who has supervisory authority being a protected right under 2." Id. at 7, citing the Judge's Decision at 9. In support of the Judge's statement, the Union argues that "any statement made by supervisory authority can have a chilling effect on rights of other employees." Id. at 7. The Respondent also argues that it was appropriate for the Judge to examine Carpenter's comments under section 7116(e) of the Statute. Applying section 7116(e), the Respondent argues that if the expression of personal views contains a threat of reprisal or force, a promise of benefit, or was made under coercive conditions, it can constitute an unfair labor practice. The Respondent argues further that, if the expression of personal views "constitutes an unfair labor practice, simple logic dictates that it cannot constitute protected activity" (underscoring in original). Id. Applying section 7116(e) to the facts, the Respondent concludes that the Judge was correct in finding that Carpenter's statements to his crew were not protected by section 7116(e). Id. at 9. The Respondent notes that the General Counsel is unable to cite any evidence that establishes that Carpenter was expressing his personal opinion to his crew on September 19. Further, the Respondent argues that even if Carpenter was expressing his personal opinion, anti-union statements by a person acting in a supervisory capacity constitute the type of statements which are not protected under section 7116(e). Id. Finally, the Respondent argues that under the General Counsel's theory, an employee with anti-union views could expound those views under coercive conditions while a supervisor expressing the same views under the same conditions causes an unfair labor practice. The Respondent states "(n)othing in the Statute suggests that an 'employee' may use supervisory authority in a coercive manner when use of the same supervisory authority by others in the same coercive manner is prohibited." Id. at 9-10. V. Analysis and Conclusion For the reasons which follow, we conclude that the Union did not violate section 7116(b)(1) and (2) when Union President Wright told Assistant Fire Chief Gilmore that Carpenter was "'bad-mouthing the Union'" and that Wright would like it stopped or Wright was going "'to start pushing papers.'" ALJ Decision at 5-6, citing Transcript at 40-41. A. Carpenter Was Not Acting in His Supervisory Capacity at the Crew Meeting We agree with the Judge's conclusion that Carpenter is not a supervisor within the meaning of the Statute. However, we disagree with his conclusion that Carpenter was acting in his supervisory capacity when he spoke to his crew on September 19, 1986. We find that Carpenter was at all times a bargaining unit employee. As noted by the Judge, the Authority has previously considered whether fire captains, or lead firefighters, whose duties were similar to Carpenter's, were supervisors. In U.S. Department of the Navy, Marine Corps Base, Camp Pendleton, California, 8 FLRA 276 (1982) (Camp Pendleton) and Department of the Navy, Naval Education and Training Center, Newport, Rhode Island, 3 FLRA 325 (1980) (Newport), the Authority found that fire captains were not supervisors under section 7103(a)(10) of the Statute because they did not devote a preponderance of their employment time to supervisory functions. The Judge found that there was nothing in the record to distinguish Carpenter's duties from the duties of fire captains in Camp Pendleton and Newport. We agree with the Judge's conclusion that Captain Carpenter was not a supervisor within the meaning of the Statute. However, we do not find support in the record for the Judge's view that Carpenter was acting in his supervisory activity when he addressed the crew. We note that the Judge credited Gilmore's testimony that Wright said that Carpenter called the meeting on September 19. However, there is no evidence concerning the circumstances under which this meeting was held. The record does not disclose whether Carpenter's purpose in assembling the crew was primarily to give instructions and work assignments or whether Carpenter's sole purpose was to state his views about the Union. Additionally, we note that Carpenter did not testify as to what he actually said at the meeting. We also note that no management official attended the meeting. Furthermore, there is no evidence that management encouraged, authorized, or ratified either Carpenter's action in calling the meeting or his statements in a manner which would lead employees reasonably to believe that Carpenter was acting on the Agency's behalf. Finally, as we noted above, fire captains are bargaining unit employees under the Statute although they occasionally perform supervisory duties. Therefore, we conclude that merely assembling his crew is insufficient evidence on which to find that Carpenter was acting as a supervisor when he made alleged anti-union statements. B. The Respondent Did Not Violate Section 7116(b)(1) The General Counsel argues that Wright threatened Carpenter in violation of section 7116(b)(1) in response to Carpenter's anti-union statements. Further, the General Counsel asserts that the Union's action was contrary to Carpenter's protected right under section 7102 of the Statute to make anti-union statements. Although Wright did not speak to Carpenter directly, the General Counsel asserts that the Union used Assistant Chief Gilmore as a conduit for the threat. In disagreement with the General Counsel, we find that the Respondent, acting through Union President Wright, did not violate section 7116(b)(1) of the Statute when Wright spoke to Assistant Fire Chief Gilmore about Carpenter's statements. In determining whether statements made by union representatives to employees constitute an infringement of section 7116(b)(1) of the Statute, the test is whether, under the circumstances, the statements tend to interfere with or coerce employees in the exercise of rights protected by the Statute. Statements made by union representatives will be deemed coercive or threatening if an employee could reasonably infer coercion or a threat. Objective, rather than subjective, standards are the appropriate guidelines in determining whether section 7116(b)(1) has been violated. See Overseas Education Association, 15 FLRA 488 (1984) (OEA). Considering the objective facts and circumstances in this case, we are persuaded that the statements made by Union President Wright, as found by the Judge, are insufficient for us to find that Carpenter reasonably could infer that the Union was threatening or coercing him. The Judge found that Wright only stated to Gilmore that if the anti-union remarks did not stop, Wright was going "'to start pushing papers.'" ALJ Decision at 7. The Judge specifically found that Wright made no "reference whatever as to whom, or as to what, he referred in his 'pushing papers' comment." Id. Although the Judge recognized that Gilmore may have inferred that Carpenter was the object of Wright's comment, the Judge found that Wright's statement also could support an inference that the Agency or that both the Agency and Carpenter were the objects of Wright's comment. Id. We find that Wright's statement about "pushing papers" was too vague and ambiguous to enable us to conclude that Wright was threatening or coercing Carpenter. Wright's statement does not meet the objective standard that the Authority set forth in earlier decisions. For example, in OEA, 15 FLRA at 490, the Authority found a violation of section 7116(b)(1) based on statements in a union publication which suggested that an employee would incur the wrath of the union membership for filing an unfair labor practice charge against the union. The union published sufficient information to identify the employee and stated that filing such charges "'cries for vengeance.'" Id. The Authority concluded that the remarks in the publication violated section 7116(b)(1) because they constituted implied threats which tended to have a coercive and restraining effect not only on the particular employee in the exercise of his protected rights under the Statute, but also on other employees who might similarly engage in activity protected by the Statute. In this case, we find that it is unreasonable to infer that Wright's statement about "pushing papers" would have a coercive and restraining effect on Carpenter's protected rights or the rights of other employees who might engage in protected conduct. We note particularly that the Judge found that Wright's statement could support an inference that the Agency was the object of Wright's comments. Thus, we find that the Respondent did not violate section 7116(b)(1) of the Statute by threatening to interfere with, restrain, or coerce Carpenter in the exercise of his right under section 7102 to make anti-union statements. Compare National Army and Air Technicians Association, Local 371, 7 FLRA 154 (1981) (violation found where union representatives threatened to bring "charges" against employee and call him as a witness in an unfair labor practice proceeding against the agency unless he rejoined the union). C. The Respondent Did Not Violate Section 7116(b)(2) The General Counsel argues that the Respondent violated section 7116(b)(2) by attempting to cause the Agency to discriminate against Carpenter for exercising his protected right under section 7102 to make anti-union statements. We find that the Respondent did not cause or attempt to cause the Agency to discriminate against Carpenter in violation of section 7116(b)(2). We find that in order to establish that an unfair labor practice occurred under section 7116(a)(2), it is not sufficient to show that an agency acted differently toward an employee or treated an employee differently from the way it treated other employees. Before we will find a violation of section 7116(a)(2), it must be established that an agency has discriminated against an employee with regard to hiring, tenure, promotion, or other conditions of employment. See, for example, United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142 (1985). In order to find that a union has violated section 7116(b)(2) of the Statute, the record must show that the union caused or attempted to cause an agency to discriminate in connection with an employee's hiring, tenure, promotion, or other conditions of employment. For example, in Overseas Education Association, 11 FLRA 377, 378 (1983), the Authority found a violation of section 7116(b)(2) where a union requested that an agency take disciplinary action, such as a reprimand, against an employee. In that case, the employee distributed an "open letter" to the faculty publicizing the union's refusal to assist him and urging that the union representative be "recalled" from her position. The union expressed concern that the tone of the letter could have provoked an emotional response among the faculty and that the employee used the school's ditto machine to reproduce the letter. Id. at 384-85. The Authority concluded that the union attempted to cause the agency to discriminate against the employee in violation of section 7116(b)(2) for having exercised rights protected by section 7102 of the Statute. In this case, there is nothing in the record to support a finding that the Union caused or attempted to cause the Agency to take any action adverse to Carpenter's conditions of employment. Although Wright asked Gilmore to relay a message and Gilmore did so, Gilmore's act of speaking to employee Carpenter did not constitute discrimination against Carpenter with regard to Carpenter terms and conditions of employment. Gilmore's conduct did not change or affect any of Carpenter's employment conditions. We find that the Respondent did not attempt to cause the Agency to discriminate against Carpenter for having exercised protected rights under the Statute. Therefore, the Respondent did not violate section 7116(b)(2) of the Statute. In Conclusion, we find that the Respondent did not violate section 7116(b)(1) and (2) of the Statute because Wright's statement to Assistant Chief Gilmore did not constitute interference, restraint, or coercion of employee Carpenter nor did it cause, or attempt to cause, the Agency to discriminate against Carpenter with regard to his employment conditions. As we find that the Respondent has not violated section 7116(b)(1) and (2), it is unnecessary for us to consider the applicability of section 7116(e). Accordingly, we conclude that the complaint should be dismissed. VI. Order The complaint in this case is dismissed.