Tidewater Virginia Federal Employees, Metal Trades Council, AFL-CIO (Respondent) and Louis T. Faison (Complainant) 



[ v01 p367 ]
01:0367(46)CO
The decision of the Authority follows:


 1 FLRA No. 46
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Respondent
 
 and
 
 LOUIS T. FAISON
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-08567(CO)
 
                            DECISION AND ORDER
 
    ON FEBRUARY 26, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN OF THE
 UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT IT
 CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET
 FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
 AND ORDER.  NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
 THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL,
 AFL-CIO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH LOUIS T. FAISON'S, OR ANY OTHER EMPLOYEE'S,
 NON-WORK TIME SOLICITATION
 
    ON BEHALF OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, OR ANY
 OTHER LABOR
 
    ORGANIZATION, AT THE NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA.
 
    2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) POST AT ITS LOCAL BUSINESS OFFICE AND AT ALL PLACES WHERE NOTICES
 TO MEMBERS ARE
 
    CUSTOMARILY POSTED, INCLUDING FACILITIES PROVIDED FOR IT AT THE NAVAL
 PUBLIC WORKS CENTER,
 
    NORFOLK, VIRGINIA, 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 PRESIDENT OF THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
 TRADES COUNCIL, AFL-CIO, AND
 
    SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER IN CONSPICUOUS
 
    PLACES.  THE PRESIDENT SHALL TAKE STEPS TO INSURE THAT SUCH NOTICES
 ARE NOT REMOVED, ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) NOTIFY THE 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.
 
    ISSUED, WASHINGTON, D.C., MAY 30, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                    NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES AT THE
 
           NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, THAT:
 
    WE WILL NOT INTERFERE WITH LOUIS T. FAISON'S, OR ANY OTHER
 EMPLOYEE'S, NON-WORK TIME SOLICITATION ON BEHALF OF THE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION, AT
 THE NAVAL PUBLIC WORKS CENTER, NORFOLK , VIRGINIA.
 
                   TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 
                       METAL TRADES COUNCIL, AFL-CIO
 
    DATED:  BY:  PRESIDENT
 
    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
 MATERIALS.
 
    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, WHOSE
 ADDRESS IS:  ROOM 509, VANGUARD BUILDING, P.O. BOX 19257, 1111 - 20TH
 STREET, N.W.  WASHINGTON, D.C. 20036.
 
    APPEARANCES:
 
    ROBERT MATISOFF, ESQ.
 
    O'DONOGHUE & O'DONOGHUE
 
    1912 SUNDERLAND PLACE, N.W.
 
    WASHINGTON, D.C.  20036
 
                            FOR THE RESPONDENT
 
    LOUIS T. FAISON
 
    944 TIFTON STREET
 
    NORFOLK, VIRGINIA 23513
 
                            COMPLAINANT PRO SE
 
    RONALD B. ZEDD, ESQ., OBSERVING
 
    BEFORE:  ROBERT J. FELDMAN
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 22-8567(CO)
 
                            DECISION AND ORDER
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 OF RECORD WAS HELD PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 11491
 AS AMENDED (HEREINAFTER REFERRED TO "ORDER") AND 29 C.F.R. PART 203.  IN
 THE LIGHT OF REORGANIZATION PLAN NO. 2 OF 1978 AND TITLE VII OF THE
 CIVIL SERVICE REFORM ACT OF 1978, THE DECISION AND ORDER HEREIN ARE
 ISSUED PURSUANT TO TRANSITION RULES AND REGULATIONS PROMULGATED IN
 FEDERAL REGISTER, VOL. 44, 1, JANUARY 2, 1979, PP. 5-8.
 
                           STATEMENT OF THE CASE
 
    THE COMPLAINT AS FILED ALLEGED VIOLATIONS OF SECTION 19(B)(1), (2) &
 (3) OF THE ORDER BASED UPON THE CHARGE THAT AN OFFICIAL OF THE
 RESPONDENT HAD PHYSICALLY ASSAULTED COMPLAINANT AND HAD TAKEN A
 CLIPBOARD CONTAINING PETITIONS OBTAINED BY HIM IN AN EFFORT TO CAUSE AN
 ELECTION CHALLENGING RESPONDENT'S REPRESENTATIONAL STATUS;  AND ALSO
 THAT SUCH OFFICIAL HAD TOLD ASSEMBLED EMPLOYEES THAT IF THEY SIGNED THE
 PETITION, RESPONDENT WOULD FILE CHARGES AGAINST THEM.  PRIOR TO ISSUING
 THE NOTICE OF HEARING, THE REGIONAL ADMINISTRATOR DISMISSED THE 19(B)(2)
 & (3) PORTIONS OF THE COMPLAINT ON THE GROUND THAT COMPLAINANT HAD
 FAILED TO ESTABLISH A REASONABLE BASIS FOR THE ALLEGED VIOLATIONS OF
 THOSE SECTIONS.  IN HIS LETTER OF PARTIAL DISMISSAL, THE REGIONAL
 ADMINISTRATOR STATED THAT NO EVIDENCE HAD BEEN ADDUCED THAT RESPONDENT'S
 REPRESENTATIVES ATTEMPTED TO INDUCE AGENCY MANAGEMENT TO COERCE AN
 EMPLOYEE IN THE EXERCISE OF RIGHTS UNDER THE ORDER, NOR WAS THERE ANY
 EVIDENCE THAT RESPONDENT COERCED, ATTEMPTED TO COERCE, DISCIPLINE, FINE
 OR TAKE OTHER ECONOMIC SANCTION AGAINST A MEMBER OF THE ORGANIZATION AS
 PUNISHMENT OR REPRISAL, OR FOR THE PURPOSE OF HINDERING OR IMPEDING THE
 MEMBER'S WORK PERFORMANCE, PRODUCTIVITY OR DISCHARGE OF DUTIES.  IT DOES
 NOT APPEAR THAT ANY APPEAL WAS TAKEN FROM THE PARTIAL DISMISSAL.
 
    IN VIEW OF THE ABOVE, THE SOLE ISSUE TO BE DETERMINED IS WHETHER THE
 RESPONDENT LABOR ORGANIZATION INFERRED WITH, RESTRAINED OR COERCED AN
 EMPLOYEE IN THE EXERCISE OF HIS RIGHTS ASSURED BY THE ORDER IN VIOLATION
 OF SECTION 19(B)(1).
 
                             FINDINGS OF FACT
 
    ON AUGUST 11, 1977, RESPONDENT WAS THE RECOGNIZED EXCLUSIVE
 BARGAINING AGENT FOR THE EMPLOYEE UNIT IN QUESTION.  COMPLAINANT WAS
 THEN AN EMPLOYEE IN THE TRANSPORTATION DEPARTMENT OF THE NAVAL PUBLIC
 WORKS CENTER IN NORFOLK, VIRGINIA, AND WAS ALSO A NATIONAL
 REPRESENTATIVE OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
 (NAGE).  SHORTLY BEFORE THE COMMENCEMENT OF THE DAY SHIFT THAT MORNING,
 COMPLAINANT WAS SOLICITING SIGNATURES ON A PETITION IN A PARKING LOT AT
 THE NAVAL PUBLIC WORKS CENTER.  THE PETITION THAT COMPLAINANT WAS
 CIRCULATING CONSISTED OF A NUMBER OF SHEETS OF AN AUTHORIZATION PETITION
 ATTACHED TO A CLIPBOARD.  EACH SHEET CONTAINED A STATEMENT AT THE TOP TO
 THE EFFECT THAT THE SIGNATORIES AUTHORIZED NAGE TO REPRESENT THEM AS
 BARGAINING AGENT, THE OBJECTIVE BEING TO CREATE A SHOWING OF INTEREST TO
 WARRANT AN ELECTION CHALLENGING RESPONDENT'S REPRESENTATION OF THE UNIT.
 
    DURING THE COURSE OF COMPLAINANT'S SOLICITATION, ONE WALTER R.
 GATLING, THEN RESPONDENT'S LOCAL CHAIRMAN OR ACTIVITY REPRESENTATIVE,
 AFTER LISTENING TO COMPLAINANT'S REQUEST TO EMPLOYEES TO SIGN THE
 PETITION, ASKED COMPLAINANT TO TELL SUCH EMPLOYEES THE TRUTH AS TO WHAT
 IT WAS HE WAS ASKING THEM TO SIGN, IMPLYING THAT COMPLAINANT WAS
 MISREPRESENTING THE CONTENTS OF THE PETITION.  COMPLAINANT ASKED MR.
 GATLING NOT TO BOTHER HIM AND TURNED AWAY.  AS HE DID SO, MR. GATLING
 TOOK POSSESSION OF THE CLIPBOARD WITH THE PETITION SHEETS ATTACHED TO
 IT.  WHEN COMPLAINANT ASKED HIM TO RETURN THE CLIPBOARD, MR. GATLING
 REFUSED TO DO SO UNLESS COMPLAINANT WOULD TELL THE PEOPLE THAT IT WAS A
 NAGE PETITION HE WAS ASKING THEM TO SIGN, INSTEAD OF A PETITION AGAINST
 THE CONTRACTING-OUT OF SOME OPERATIONS.  COMPLAINANT THEN CALLED A
 NEARBY BASE POLICEMAN, BUT BY THEN MR. GATLING HAD LEFT THE AREA, SO
 COMPLAINANT REPORTED THE INCIDENT TO THE BASE POLICE DEPARTMENT.
 
    AN HOUR OR TWO LATER, MR. GATLING RETURNED THE CLIPBOARD TO THE BASE
 POLICE OFFICE.  COMPLAINANT INSISTED, HOWEVER, THAT SEVERAL SHEETS OF
 SIGNATURES HAD BEEN REMOVED FROM THE CLIPBOARD, AS A RESULT OF WHICH MR.
 GATLING WAS CHARGED WITH THEFT OF PERSONAL PROPERTY OF A VALUE OF LESS
 THAN $100.00 AND WAS GIVEN A SUMMONS TO APPEAR IN COURT.  SUBSEQUENTLY
 THE CHARGE WAS DISMISSED.
 
    ON OTHER OCCASIONS, SEVERAL EMPLOYEES HAD SIGNED COMPLAINANT'S
 PETITIONS UNDER A MISTAKEN IMPRESSION AS TO THE CONTENTS AND PURPOSE
 THEREOF, CLAIMING THAT THEY DID NOT SEE, OR DID NOT READ, THE
 TYPEWRITTEN PARAGRAPH AT THE TOP OF THE SHEET AND THAT THEY WERE TOLD IT
 WAS A PETITION AGAINST CONTRACTING-OUT CERTAIN WORK OR A PETITION TO
 INCREASE WAGES.  ON AUGUST 31, 1977, NAGE FILED A LABOR ORGANIZATION
 PETITION (RO) FOR CERTIFICATION OF REPRESENTATIVE.  ON OCTOBER 20, 1977,
 NAGE WITHDREW SUCH PETITION.
 
                            CONCLUSIONS OF LAW
 
    RESPONDENT RECOGNIZES THAT UNDER SECTION 1(A) OF THE ORDER,
 COMPLAINANT AS AN EMPLOYEE HAD AN ASSURED OR PROTECTED RIGHT TO ASSIS