[ v46 p978 ]
The decision of the Authority follows:
46 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1840, AFL-CIO
DECISION AND ORDER
December 18, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by threatening to discipline a Union official for having engaged in activity protected under the Statute. The Respondent filed exceptions(1) to the Judge's decision and the General Counsel filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt, with modification, the Judge's findings, conclusions, and recommended order.(2)
It is clear that the disputed statements in the Union's letter of November 30, 1990, were made during the course of protected activity. As such, the statements are protected unless they constituted flagrant misconduct. For example, American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, El Paso Border Patrol Sector, 44 FLRA 1395, 1402 (1992). The Judge found, and we agree, that the statements did not constitute flagrant misconduct. Accordingly, we adopt the Judge's finding that the Respondent violated the Statute by threatening to discipline the affected Union official for having engaged in acvitity protected by the Statute. In view of our decision, we find it unnnecesary to address, and do not adopt, the Judge's decision insofar as it may be read as holding that all statements made by a union official during the course of a grievance procedure must be protected, without regard to whether they constitute flagrant misconduct. Similarly, we find unnecessary, and do not address or adopt, the Judge's discussion of libel and slander.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, shall:
1. Cease and desist from:
(a) Threatening to discipline Mr. Joe R. Gutierrez or any other official of, or employee represented by, the American Federation of Government Employees, Local 1840, AFL-CIO, for expressing the Union's concerns to the Commanding Officer of Randolph Air Force Base or engaging in other activity protected by the Statute.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Notify each person to whom the Respondent's letter of December 7, 1990, was sent, that the Union's letter of November 30, 1990, constituted the exercise of protected activity and that the Respondent's letter is rescinded.
(b) Post at its facilities where bargaining unit employees are located 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 Commanding Officer of Randolph Air Force Base and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT threaten to discipline Mr. Joe R. Gutierrez or any other official of, or unit employee represented by, the American Federation of Government Employees, Local 1840, AFL-CIO, for expressing the Union's concerns to the Commanding Officer of Randolph Air Force Base or for engaging in other activity protected by the Statute.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.
WE WILL notify each person to whom our letter of December 7, 1990, was sent, that the Union's letter of November 30, 1990, constituted the exercise of protected activity and that our letter is rescinded.
Date: __________ By: ______________________________
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, Dallas Regional Office, FLRA, whose address is: 525 Griffin Street, Suite 926, LB 107, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996.
(If blank, the decision does not have footnotes.)
1. Although the General Counsel asserts that the exceptions fail to specifically identify the portions of the Judge's decision to which exceptions are taken, the General Counsel acknowledges that it is clear from the exceptions that the Respondent excepts generally to the Judge's finding that it violated the Statute. We conclude that the exceptions sufficiently identify the matters in dispute and are properly before us.
2. We have modified the Judge's recommended order to conform to orders in similar cases. For example, U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 38 FLRA 567 (1990). In particular, we find no allegation in the complaint, or other basis on which to conclude, that the Respondent violated the Statute by failing to keep confidential the disputed Union letter; we have modified the Judge's order accordingly. We also find no basis for requiring the Commanding Officer to personally notify certain persons that the disputed Union letter constituted lawful protected activity, and we have eliminated that requirement from the Judge's recommended order. We will, however, require the Commanding Officer to sign the Notice. See, for example, Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Indiana, 40 FLRA 558, 559 n.* (1991).