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MINOT AIR FORCE BASE, NORTH DAKOTA
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Case No. DE-CA-50399
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James T. Hedgepeth, Major, USAF
Counsel for the Respondent
Steven B. Thoren
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
The unfair labor practice complaint alleges that Respondent,
through a supervisor, violated section 7116(a)(1) and (2) of the
Federal Service Labor-Management Relations Statute (the Statute), 5
U.S.C. §§ 7116(a)(1) and (2), by not selecting Darwin (Sam) Kampman
for a temporary supervisory position because he engaged in activity
protected by the Statute, and separately violated section
7116(a)(1) of the Statute by telling Mr. Kampman that he was not
selected for the position because he was the Union Steward.
Respondent's answer admitted that it was subject to the
requirements of the Statute, but denied the alleged violations.
A hearing was held in Minot, North Dakota. The Respondent and
the General Counsel were represented by counsel and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The
Respondent and General Counsel filed helpful briefs. Based on the
entire record(1), including my
observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and
recommendations.
The Charging Party (Union) is the certified exclusive
representative of an appropriate unit of employees of the
Respondent.
In early January 1995 a temporary supervisory position,
Aircraft Clearing Equipment Operator Supervisor, WS-8, known as
"Snow One," became vacant on the swing shift in Respondent's 5th
Civil Engineering Squadron due to the retirement of the incumbent
of that position. Respondent decided to fill the position from
January 8, 1995 to April 1, 1995, the anticipated remainder of the
snow season. Since this period was less than 120 days, the merit
promotion plan did not apply.
Shift supervisors notified employees of the vacancy and
instructed them to inform one of the shift supervisors or James
Scott, the horizontal construction foreman and selecting official,
if they were interested in the vacancy and the temporary
promotion.
Day shift supervisor Philip Christman asked Darwin (Sam)
Kampman, a senior equipment operator on the swing shift, WG-7, if
he was interested in the Snow One swing shift position. Kampman
replied that he was. There is no evidence that Christman ever
advised James Scott of Kampman's interest.
Respondent has a system whereby qualified employees are
automatically considered for promotions and need not indicate
interest or apply for such positions. If an employee is selected,
then the employee is asked whether he wishes to accept the
position.
Darwin (Sam) Kampman has been employed at Minot AFB for about
15 years. Kampman has been a union member since he started working
there and a Steward for AFGE Local 4046 since about 1991.
Kampman has engaged in a variety of representational activity
as a Steward. Among other things, he has represented employees
concerning grievances, winter employment, and workers' compensation
problems. Kampman has dealt with James Scott, his second-level
supervisor and the overall shop foreman, in his capacity as a
Steward. Scott was aware of Kampman's Union activity.
On about Thursday, January 5, 1995, Technical Sergeant (Sgt.)
Angus, the military supervisor for the swing shift on which Kampman
worked, announced that a selection had been made for the Snow One
position. Angus announced that Richard Mathson had been selected
and would be moving from the day shift to the swing shift to assume
the Snow One position for the remainder of the snow season. Mathson
served as Snow One from about January 9 until approximately April
1, 1995.
The next day that Kampman could talk to Foreman Scott about
this was Monday, January 9. Kampman went to Scott's office and
asked Scott why he had not been selected for Snow One, that he
thought that he was the senior man in the shop. Scott replied that
he could not select Kampman because he was the Union
Steward.(2) There is no evidence
that Scott, prior to the selection for Snow One, ever discussed
with Kampman how his being a Union Steward could affect his
qualifications to be a supervisor.
On January 11, 1995, Kampman furnished Duane Desilets, the
President of Local 4046, oral information and, at Desilets'
request, written memoranda concerning the matter. Shortly
thereafter, Kampman and Desilets spoke with Sgt. Angus about the
selection for Snow One. They explained what Scott had told Kampman
and inquired whether Scott had said anything to Angus. Angus
responded that he did not hear Scott say anything like that, but
was not surprised that Scott would have made such a
statement.(3)
Mr. Scott testified that the selection for the Snow One
position was made by sitting down with all of the supervisors and
going over the roster of eligibles. According to Mr. Scott, they
considered all eligible employees, including Mr. Kampman, and
narrowed it down to four or five candidates. Mr. Scott testified
that the unanimous selection of all the supervisors was Richard
Mathson.(4) Mr. Scott testified that
he selected Mr. Mathson due to his dependability, productivity,
meticulous work behavior, initiative, experience, and coolness
under pressure. Calvin Clouse was considered second best. Mr. Scott
stated that they considered all of the candidates appraisals, and
that while they did not count up total points, they did look at
their overall performance ratings. Mr. Mathsons most recent rating,
as well as Mr. Kampmans, was an "excellent."
While Kampman and Mathson had the same overall rating of
excellent, in the most recent appraisal prior to the selection (for
the appraisal year from July 1, 1993 to June 30, 1994), Kampman had
an overall total of 68 points compared to Mathson's total of 66
points. The Air Force uses a 9 factor appraisal with 9 points for
each factor, with a total of 81 points available. Scott was the
reviewing official who signed the appraisals for both Kampman and
Mathson. In fact, Kampman had overall ratings of excellent for each
of his three previous appraisals, while Mathson had received the
excellent only in 1994, with his two previous appraisals being
fully successful, a lower rating.
With regard to the "productivity" factor considered by Mr.
Scott, the performance appraisal for "work productivity" reflects
that Mr. Kampman received an "8" (far above fully successful) in
both 1993 and 1994 while Mr. Mathson received a "7" (above fully
successful) in 1993 and a "8" in 1994.
With regard to the "initiative" factor, the performance
appraisals reflect that both Mr. Kampman and Mr. Mathson received
an "8" for "Work Effort," including initiative, in 1993 and 1994,
and Mr. Kampman received an "8" in both years for "Problem Solving"
while Mr. Mathson only received "7s."
With regard to the "dependability" factor, the performance
appraisals reflect that Mr. Kampman received "8s" in both 1993 and
1994 for "self-sufficiency" (works independently, follows through,
accomplishes all tasks), while Mr. Mathson received a "7" in 1993
and an "8" in 1994.
With regard to the "meticulous work" factor, the performance
appraisals reflect that Mr. Kampman received "8s" in "Skill in
Work" in both 1993 and 1994 while Mr. Mathson received "7s" during
this period. Both received "7s" in "Work Management."
Concerning the "coolness under pressure" factor, the
performance appraisals for 1994 reflect that both Mr. Kampman and
Mr. Mathson received "7s" for "Adaptability to Work" in 1994, but
that Mr. Mathson received an "8" in this category in 1993. Mr.
Kampman received "8s" in "Problem Solving" in both 1993 and 1994
while Mr. Mathson received "7s."
With regard to the "working relationships with others" factor,
the performance appraisals reflect that both Mr. Kampman and Mr.
Mathson received "7s" in the "Working Relationships" factor in both
1993 and 1994.
Concerning the "experience" factor at the time of the selection
for Snow One in January 1995, Kampman had more seniority than
Mathson. Kampman had worked full-time for Minot AFB since 1981 and
in the maintenance shop since 1987. Mathson, on the other hand, had
worked as a temporary for several years, and was not made a
permanent employee until 1994, when he was made permanent under the
Veterans Readjustment Act (VRA). Under the VRA, the employee has a
two-year probationary period, and Mathson was still on his VRA
probation at the time that he selected for Snow One.
The record does not indicate that either Kampman or Mathson had
any supervisory experience prior to the Snow One selection. Mr.
Scott testified that one day he put Mr. Kampman in the dispatch
office and that Kampman was lost, had trouble talking on the radio,
and answering the phone. Mr. Scott stated, "If he cant do that,
then how could he run, you know, the airfield?" On
cross-examination, Scott acknowledged, and Sgt. Angus also
testified, that the duties of a dispatcher are not similar to that
of the Snow One supervisory position.
In filling positions for the 1995-1996 snow season, Respondent
chose Mr. Mathson as Snow One for the graveyard shift and Calvin
Clouse as Snow One for the swing shift.
The Statement
Section 7102 of the Statute protects each employee in the
exercise of the right to form, join, or assist a labor
organization, including the right to act as a labor organization
representative, or to refrain from any such activity, without fear
of penalty or reprisal. Section 7116(a)(1) provides that it is an
unfair labor practice for an agency to interfere with, restrain, or
coerce any employee in the exercise by the employee of such
right.
The Authority has held that the standard for determining
whether management's statement or conduct violates section
7116(a)(1) of the Statute is an objective one. The question is
whether, under the circumstances, the statement or conduct would
tend to coerce or intimidate the employee, or whether the employee
could reasonably have drawn a coercive inference from the
statement. Although the circumstances surrounding the making of the
statement are taken into consideration, the standard is not based
on the subjective perceptions of the employee or the intent of the
employer. U.S. Department of Agriculture, U.S.
Forest Service, Frenchburg Job Corps, Mariba, Kentucky, 49
FLRA 1020, 1034 (1994).
When Union Steward Kampman asked Foreman Scott why he had not
been selected for the Snow One temporary supervisory position,
Scott replied that he could not select Kampman because he was the
Union Steward. Scott's statement, made after the selection and
apart from any attempt to reach an accommodation between the
employee's protected right and management's right to manage
effectively, drew a direct connection between Kampman's protected
activity and his ability to obtain a temporary supervisory
position. It would, under the circumstances, tend to coerce the
employee from exercising the right accorded him by the Statute to
act for a labor organization in the capacity of a representative in
order not to forego promotional opportunities. Thus, the statement
violated section 7116(a)(1) of the Statute, as alleged.
The Discrimination
Section 7116(a)(2) of the Statute provides that it is an unfair
labor practice for an agency "to encourage or dis- courage
membership in any labor organization by discrimination in
connection with hiring, tenure, promotion, or other conditions of
employment[.]" Under the analytical framework set forth in
Letterkenny Army Depot, 35 FLRA 113 (1990),
in determining whether the Respondent violated Section 7116(a)(2)
of the Statute, the General Counsel must establish that the
employee against whom the alleged discriminatory action was taken
was engaged in protected activity and that consideration of such
activity was a motivating factor in connection with hiring, tenure,
promotion, or other conditions of employment. Id. at 118. If the General Counsel makes this required
prima facie
showing, the respondent may seek to establish, by a preponderance
of the evidence, that there was a legitimate justification for its
action and the same action would have been taken even in the
absence of the consideration of protected activity. Id.
There is no dispute that Steward Kampman was engaged in
activities protected by the Statute and that Respondent was aware
of those activities. The General Counsel made a prima facie showing that consideration of such activity
was a motivating factor in Kampman's non-selection for the position
by Foreman Scott's statement, as discussed above, which drew a
direct connection between Kampman's protected activity and his
ability to obtain the temporary supervisory position. Department of the Air Force, Ogden Air Logistics Center, Hill
Air Force Base, Utah, 35 FLRA 891, 898 (1990) (the Authority
found that statements, regarding an employee's engaging in
protected activity, made after an action taken by management do not
constitute an attempt at reasonable accommodation, and can be
evidence of the illegal motivating factor.) The General Counsel
also showed that Kampman's experience and performance record were
better than Mathson's in several respects, as set forth above.
In addition to urging that the alleged statements by Foreman
Scott and Sgt. Angus were not made or were misinterpreted, and,
thus, that there was no illegal motivation, Respondent contends
that there was a legitimate justification for its action and that
Mr. Mathson would have been chosen anyway. Respondent relies on the
testimony of Mr. Scott that all of his subordinate supervisors
recommended Mr. Mathson and also on Mr. Scott's and Sgt. Angus'
testimony concerning Mr. Mathson. The only testimony specifically
comparing Mr. Mathson with Mr. Kampman, and regarding Kampman not
being more qualified than Mathson, was the attempt by Scott to show
that Kampman had not performed well on a one-day detail as a
dispatcher. Scott and Angus acknowledged that the duties of the
dispatcher were not in any way similar to that of Snow One and that
the dispatcher has no supervisory responsibilities. This attempt at
a justification appears pretextual.
I conclude that the Respondent provided no objective or
credible testimony to establish any legitimate justification for
the selection that would offset Kampman's documented performance
and experience advantage, nor refute the statement by Scott, who
was the selecting official, that the reason that Kampman was not
selected was because he was the Union Steward.
Based on the foregoing, it is concluded that the General
Counsel has established by a preponderance of the evidence that
Darwin (Sam) Kampman was not selected for the Snow One position
because he engaged in activity protected under the Statute.
Accordingly, Respondent violated section 7116(a)(1) and (2) of the
Statute, as alleged. The remedial order proposed by the General
Counsel to effectuate the policies of the Statute in this case is
appropriate and will be recommended.
Based on the above findings and conclusions, it is recommended
that the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that Minot Air Force Base, North Dakota,
shall:
1. Cease and desist from:
a. Discriminating against unit employees for engaging
in activities protected under the Statute, such as refusing to
select employees for a temporary supervisory position because they
serve as Union Stewards.
b. Making statements to employees which interfere with,
coerce, or discourage any employee from exercising the rights
accorded by the Statute to act for a labor organization in the
capacity of a representative freely and without fear of penalty or
reprisal.
c. In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of rights
assured to them by the Statute.
2. Take the following affirmative actions in order to
effectuate the purposes and policies of the Statute:
a. Re-administer the selection process for the Snow One
position conducted in January 1995, without considering any
applicant's activity protected under the Statute. If Kampman is
selected for the Snow One position for January to April 1995,
re-administer the selection process for the Snow One positions
conducted in about November or December 1995, without considering
any applicants activity protected under the Statute, without
considering Richard Mathson's time as Snow One from January to
April 1995, and considering that Kampman shall be credited for time
as Snow One from January to April 1995. If Darwin Kampman is
selected for the position or positions, make him whole for loss of
pay, allowances, or differentials, with interest and other
benefits, consistent with 5 U.S.C. § 5596.
b. Post at Minot Air Force Base, North Dakota copies of
the attached Notice to All Employees on forms furnished by the
Federal Labor Relations Authority. Upon receipt of the forms, they
shall be signed by the Commander, Minot Air Force Base, and they
shall be posted and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees
are customarily posted. 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, Federal Labor
Relations Authority, Denver Region, in writing, within 30 days from
the date of this Order, as to what steps have been taken to
comply.
Issued, Washington, DC, March 13, 1996
GARVIN LEE OLIVER
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS
AUTHORITY
The Federal Labor Relations Authority has found that Minot Air Force Base, North Dakota violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT make statements to bargaining unit
employees represented by American Federation of Government
Employees, AFL-CIO, Local 4046 (the Union) to the effect that the
reason that they were not selected for a position was because of
their role as a representative of the Union.
WE WILL NOT consider unit employees' protected
activity under the Statute, including their right to join, form,
assist, and act as a representative of the Union, when making
selections to fill positions, or in any like or related manner
encourage or discourage membership in any labor organization by
discrimination in connection with hiring, tenure, promotion, or
other conditions of employment.
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce employees in the exercise of
their rights assured by the Federal Service Labor-Management
Relations Statute.
WE WILL re-administer the January 1995 selection
process for the Snow One position, and, if necessary, subsequent
selections, without considering any applicants' protected activity
under the Statute. If Darwin Kampman is selected for the position,
or positions, we will make him whole for loss of pay, allowances,
or differentials, with interest and other benefits, consistent with
5 U.S.C. § 5596.
(Activity)
Date: _____________________ 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 provision, they may communicate
directly with the Regional Director for the Federal Labor Relations
Authority, whose address is: 1244 Speer Boulevard, Suite 100,
Denver, Colorado, 80204-3581, and whose telephone number is: (303)
844-5224.
1. Counsel for the General Counsel's unopposed motion to correct the transcript is granted; the transcript at page 15 (instead of 14) is granted as set forth therein.
2. When Kampman asked why he had not been selected or considered for the job, Mr. Scott testified that he replied, "You were. But, you know, you can't hold the position of Union steward and supervisor at the same time." According to Scott, Kampman said he would have dropped being a Union steward if Scott had asked, and Scott then said, "I didn't know you were interested, you know, so that's why I didn't ask." Scott denied that he told Kampman specifically that he was not chosen for the position because he was the Union steward and would not have made such a statement because "[i]t's illegal." I have credited Mr. Kampman's version, but note that even Mr. Scott's admitted statements are confusing and could have clearly indicated to Mr. Kampman that his Union activity was a motivating factor in the selection process rather than, as Respondent's counsel urges, a mere reminder that had he been chosen, he could not have continued as a Union steward.
3. Sgt. Angus denied making such a statement. He testified that when Mr. Kampman asked him why he was not picked for the Snow One position, he just responded that he picked Dick Mathson as best qualified. I have credited Messrs. Kampman and Desilets' account of the conversation. Mr. Desilets impressed me as being very exact in making inquiries and reports.
4. Sgt. Angus testified that he recommended Mr. Mathson based on his work habits and ability to get along with the rest of the employees. Angus testified that Gordon Christenson, the individual vacating the position, also recommended Mathson.