Naval Air Rework Facility, Marine Air Station, Cherry Point, North Carolina (Respondent) and Local Lodge 2297, International Association of Machinists and Aerospace Workers, AFL-CIO (Complainant) 

 



[ v01 p755 ]
01:0755(85)CA
The decision of the Authority follows:


 1 FLRA No. 85
 
 NAVAL AIR REWORK FACILITY,
 MARINE AIR STATION,
 CHERRY POINT, NORTH CAROLINA
 Respondent
 
 and
 
 LOCAL LODGE 2297, INTERNATIONAL
 ASSOCIATION OF MACHINISTS AND
 AEROSPACE WORKERS, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 40-8713(CA)
 
                            DECISION AND ORDER
 
    ON FEBRUARY 23, 1979, ADMINISTRATIVE LAW JUDGE ROBERT C. MAHONY
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
 LABOR PRACTICE ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE
 COMPLAINT BE DISMISSED IN ITS ENTIRETY.  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 FUNCTION' 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, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION ONLY TO THE EXTENT
 CONSISTENT HEREWITH.
 
    IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
 FOUND THAT THE RESPONDENT'S SUPERVISOR REMOVED A UNIT EMPLOYEE FROM AN
 INFORMAL LIST OF SHOP EMPLOYEES WHO WISHED TO BE CONSIDERED FOR THE
 POSITION OF ALTERNATE RELIEF SUPERVISOR "OUT OF PIQUE BECAUSE HIS
 DECISION TO DENY (THE EMPLOYEE'S) LEAVE WAS BROUGHT TO THE ATTENTION OF
 THE DIVISION DIRECTOR BY THE UNION . . . " NEVERTHELESS, HE CONCLUDED
 THAT THE REMOVAL WAS NOT VIOLATIVE OF SECTION 19(A)(1) AND (2) OF THE
 ORDER BECAUSE THE RECORD WOULD NOT SUPPORT A FINDING THAT THE CONDUCT
 INVOLVED HEREIN WAS MOTIVATED BY ANTI-UNION ANIMUS.  /1/ CONTRARY TO THE
 ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES THAT A SECTION
 19(A)(2) AND (1) VIOLATION IS CLEARLY ESTABLISHED BY THE ADMINISTRATIVE
 LAW JUDGE'S FINDING THAT AN EMPLOYEE WAS DISCRIMINATED AGAINST AS A
 RESULT OF EXERCISING HIS ASSISTANCE.  /2/
 
                                THE REMEDY
 
    ACCORDINGLY, HAVING FOUND THAT THE RESPONDENT ENGAGED IN CERTAIN
 CONDUCT PROHIBITED BY SECTION 19(A)(2) AND (1) OF THE EXECUTIVE ORDER
 11491, AS AMENDED, THE AUTHORITY SHALL DIRECT THAT IT CEASE AND DESIST
 THEREFROM, AND TAKE CERTAIN AFFIRMATIVE ACTION, AS SET FORTH BELOW,
 DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
 
                                   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 NAVAL AIR REWORK FACILITY, MARINE AIR STATION, CHERRY POINT,
 NORTH CAROLINA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REMOVING FROM CONSIDERATION FOR THE POSITIONS OF RELIEF
 SUPERVISOR AND ALTERNATE RELIEF SUPERVISOR, ROBERT L. BAKER, OR ANY
 OTHER EMPLOYEE, BECAUSE THEY HAVE EXERCISED THEIR RIGHT UNDER THE
 EXECUTIVE ORDER BY SEEKING THE ASSISTANCE OF THEIR EXCLUSIVE
 REPRESENTATIVE TO RESOLVE A DISPUTE OVER A CONDITION OF EMPLOYMENT.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE ORDER:
 
    (A) POST AT ITS FACILITIES AT THE NAVAL AIR REWORK FACILITY, MARINE
 AIR STATION, CHERRY POINT, NORTH CAROLINA, 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 COMMANDING OFFICER, NAVAL AIR REWORK FACILITY, MARINE AIR
 STATION, CHERRY POINT, NORTH CAROLINA, AND THEY SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUD'NG ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
 POSTED.  THE NAVAL AIR REWORK FACILITY, MARINE AIR STATION, CHERRY
 POINT, NORTH CAROLINA, SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT 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.
 
    IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT INSOFAR AS IT ALLEGES
 VIOLATION OF SECTION 19(A)(4) OF THE ORDER BE, AND HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 17, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE OF 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 REMOVE FROM CONSIDERATION FOR THE POSITIONS OF RELIEF
 SUPERVISOR AND ALTERNATE RELIEF SUPERVISOR ROBERT L. BAKER, OR ANY OTHER
 EMPLOYEE, BECAUSE THEY EXERCISED THEIR RIGHT UNDER THE EXECUTIVE ORDER
 BY SEEKING THE ASSISTANCE OF THEIR EXCLUSIVE REPRESENTATIVE TO RESOLVE A
 DISPUTE OVER A CONDITION OF EMPLOYMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .
 
                                BY:  . . .
 
                                (SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA, GEORGIA
 30309, AND WHOSE TELEPHONE NUMBER IS:  (404) 881-4237.
 
    MR. WALTER BAGBY
 
    LABOR MANAGEMENT RELATIONS SPECIALIST
 
    OFFICE OF CIVILIAN PERSONNEL
 
    BUILDING A67
 
    NAVAL STATION
 
    NORFOLK, VIRGINIA
 
                            FOR THE RESPONDENT
 
    MR. TERRY A. WEDDINGTON
 
    DISTRICT 110
 
    INTERNATIONAL ASSOCIATION OF
 
    MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
 
    POST OFFICE BOX 716
 
    HAVELOCK, NORTH CAROLINA 28532
 
                            FOR THE COMPLAINANT
 
    BEFORE:  ROBERT G. MAHONY
 
    ADMINISTRATIVE LAW JUDGE
 
                           PRELIMINARY STATEMENT
 
    THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
 AS AMENDED, (HEREINAFTER REFERRED TO AS THE ORDER).  PURSUANT TO THE
 REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
 (HEREINAFTER REFERRED TO AS THE ASSISTANT SECRETARY), A NOTICE OF
 HEARING ON COMPLAINT ISSUED ON JUNE 6, 1978 WITH REFERENCE TO ALLEGED
 VIOLATIONS OF SECTIONS 19(A)(1)(2)(4) AND SECTION 1 OF THE ORDER.  /3/
 
    THE COMPLAINT, FILED ON MARCH 2, 1978 ALLEGES, IN ESSENCE, THAT THE
 ORDER WAS VIOLATED BECAUSE A UNION MEMBER WAS TOLD BY MANAGEMENT THAT
 HIS NAME WAS BEING REMOVED FROM CONSIDERATION AS ALTERNATE RELIEF
 SUPERVISOR IN HIS WORKSHOP BECAUSE HE FILED A GRIEVANCE AND "DID NOT GO
 ALONG WITH MANAGEMENT'S POSITION." /4/
 
    A HEARING WAS HELD ON AUGUST 17, 1978 AT THE MARINE CORPS AIR
 STATION, CHERRY POINT, NORTH CAROLINA AT WHICH TIME THE PARTIES WERE
 GIVEN AN OPPORTUNITY TO EXAMINE WITNESSES, INTRODUCE DOCUMENTARY
 ARGUMENT AND PRESENT ORAL ARGUMENT.  THE PARTIES FILED TIMELY BRIEFS BY
 OCTOBER 6, 1978.
 
                           STATEMENT OF THE CASE
 
    ON OCTOBER 25, 1977, ROBERT L BAKER AN EMPLOYEE IN SHOP 94206,
 SUBMITTED A LEAVE SLIP TO HIS ACTING SUPERVISOR, MR. HORACE TYLER
 REQUESTING FOUR HOURS ANNUAL LEAVE FOR "PERSONAL BUSINESS." MR. BOBBY
 NELSON, WHO WAS THE PERMANENT SUPERVISOR OF SHOP 94206, BUT ON THIS DATE
 WAS ACTING BRANCH CHIEF, SAW THE LEAVE REQUEST ON A DESK AND DISAPPROVED
 IT.  /5/
 
    UPON LEARNING OF THE DISAPPROVAL, MR. BAKER HAD HIS UNION
 REPRESENTATIVE, MR. VICTOR WIKHAUSER BRING IT TO THE ATTENTION OF MR.
 JOHN SAVAGE, THE DIVISION DIRECTOR.  MR. SAVAGE DIRECTED THAT THE LEAVE
 REQUEST BE RESUBMITTED TO MR. TYLER WHO APPROVED IT ON OCTOBER 27, 1977.
 
    ON OCTOBER 31, 1977, MR. NELSON RETURNED TO HIS PERMANENT POSITION AS
 SHOP 94206 SUPERVISOR AND ON THIS DATE ADVISED MR. BAKER THAT HE WOULD
 NOT BE CONSIDERED FOR THE POSITION OF ALTERNATE RELIEF SUPERVISOR FOR
 THE REMAINDER OF THE QUARTER ENDING DECEMBER 31, 1977.
 
    IT WAS THE REMOVAL OF MR. BAKER FROM CONSIDERATION AS ALTERNATIVE
 RELIEF SUPERVISOR BY MR. NELSON THAT PRECIPITATED THE FILING OF THE
 CHARGE AND COMPLAINT HEREIN.
 
    THE UNION CONTENDS THAT THE REMOVAL OF BAKER FROM CONSIDERATION OF
 ALTERNATE RELIEF SUPERVISOR WAS A RETALIATORY ACT BY MANAGEMENT BECAUSE
 BAKER GRIEVED THE DENIAL OF LEAVE BY MR. NELSON.  THE UNION FURTHER
 CONTENDS THAT THE REMOVAL OF BAKER CAUSED HIM TO LOSE EXPERIENCE AND
 ALSO CAUSED UNION MEMBERSHIP TO DECLINE.
 
    MANAGEMENT TAKES SEVERAL POSITIONS IN DEFENSE OF BAKER'S REMOVAL:
 
    1) THERE WAS NO GRIEVANCE BECAUSE THE DISCUSSION BETWEEN MR.
 WIKHAUSER AND MR. SAVAGE WAS AN INFORMAL WAY OF SOLVING A PROBLEM.
 
    2) MANAGEMENT WAS NOT REQUIRED UNDER ANY CIRCUMSTANCES TO HAVE AN
 ALTERNATE RELIEF SUPERVISOR.
 
    3) BAKER WAS REMOVED FROM CONSIDERATION BECAUSE MANAGEMENT FELT THAT
 HIS PERSONAL USE OF LEAVE WAS EXCESSIVE AND HE WOULD NOT PROPERLY
 SUPERVISE OTHER EMPLOYEES' LEAVE REQUESTS IF HE WERE TO BE IN THE
 POSITION OF ALTERNATE RELIEF SUPERVISOR.
 
                                   ISSUE
 
    DID THE REMOVAL ON OCTOBER 31, 1977 BY MR. BOBBY NELSON OF MR.
 ROBERT L. BAKER FROM FURTHER CONSIDERATION AS ALTERNATE RELIEF
 SUPERVISOR FOR THE REMAINDER OF THE QUARTER ENDING DECEMBER 31, 1977
 CONSTITUTE A VIOLATION OF SECTION 19(A)(1)(2) AND (4) AND SECTION 1 OF
 THE ORDER.
 
                                DISCUSSION
 
    MR. NELSON TESTIFIED THAT THE POSITIONS OF RELIEF SUPERVISOR AND
 ALTERNATE RELIEF SUPERVISOR WERE STARTED BY HIM WHEN HE BECAME
 SUPERVISOR OF THE RADAR SHOP.  THEY WERE NOT POSITIONS THAT WERE
 REQUIRED THROUGH ANY CONTRACTUAL AGREEMENT WITH THE UNION BUT WERE AN
 ESTABLISHED PRACTICE IN THAT SHOP.
 
    THE EVIDENCE ESTABLISHED THAT MR. NELSON MAINTAINED AN INFORMAL LIST
 OF SHOP EMPLOYEES WHO WISHED TO BE CONSIDERED FOR THESE POSITIONS AND
 THEY WOULD GENERALLY BE FILLED ON A ROTATING BASIS.
 
    BEFORE OCTOBER 1977, BAKER SERVED ONE WEEK AS ALTERNATE RELIEF
 SUPERVISOR.  SINCE JANUARY 1, 1978 HE HAS BEEN RESTORED TO THE LIST AND
 APPOINTED SUBSTITUTE SUPERVISOR.
 
    NELSON DENIES THAT THERE WAS ANY CAUSAL CONNECTION BETWEEN BAKER'S
 REMOVAL FROM THE LIST AND THE EPISODE INVOLVING BAKER'S LEAVE.  RATHER,
 NELSON MAINTAINS THAT BAKER WAS REMOVED BECAUSE HE USED SUBSTANTIAL
 AMOUNTS OF LEAVE AND THEREFORE NELSON DIDN'T BELIEVE BAKER WOULD SUPPORT
 MANAGEMENT'S "POSITION" ON LEAVE REQUESTS DURING A PERIOD WHEN THE
 GRANTING OF LEAVE HAD TO BE TIGHTLY CONTROLLED.
 
    THIS IS A CONTENTION THAT I PERCEIVE TO BE MADE OF "WHOLE CLOTH." IN
 MY VIEW, MR. NELSON'S TESTIMONY EXPLAINING THE REASONS FOR HIS REMOVAL
 OF MR. BAKER FROM CONSIDERATION AS ALTERNATE RELIEF SUPERVISOR IS NOT
 CREDIBLE.  BASED UPON MY REVIEW OF ALL THE TESTIMONY AND THE DEMEANOR OF
 THE WITNESSES, PARTICULARITY, MR. NELSON, I FIND THAT HE REMOVED BAKER
 OUT OF PIQUE BECAUSE HIS DECISION TO DENY BAKER LEAVE WAS BROUGHT TO THE
 ATTENTION OF THE DIVISION DIRECTOR BY THE UNION AND ULTIMATELY REVERSED.
 
    HAD MANAGEMENT BEEN CONCERNED ABOUT BAKER'S USE OF ANNUAL LEAVE OVER
 AN EXTENDED PERIOD, IT COULD HAVE DENIED ANY OR ALL OF THE LEAVE
 REQUESTS, AS IS ITS PREROGATIVE.  IT CANNOT GRANT THE LEAVE AND THEN USE
 IT AS A REASON TO PENALIZE AN EMPLOYEE.  MANAGEMENT, IN THIS CASE, IS
 GRASPING AT STRAWS IN AN EFFORT TO JUSTIFY NELSON'S ACTION OF REMOVAL.
 THIS INTERPRETATION OF MR. NELSON'S ACTION IS STRENGTHENED BY BAKER'S
 RESTORATION TO THE LIST BEGINNING IN JANUARY 1978.  THERE IS NO
 INDICATION THAT HE WAS BETTER ABLE TO SUPPORT MANAGEMENT'S POSITION
 REGARDING OTHER EMPLOYEES' LEAVE AS OF JANUARY 1, 1978 THEN HE WOULD
 HAVE BEEN ON NOVEMBER 1, 1977, 60 DAYS EARLIER.
 
    FURTHER, THE SEQUENCE OF EVENTS OVER A SHORT PERIOD OF TIME (6 DAYS)
 BETWEEN BAKER'S LEAVE REQUEST, AND HIS REMOVAL BY MR. NELSON FROM THE
 LIST ON THE FIRST DAY NELSON RETURNED AS SHOP SUPERVISOR, CONVINCES ME
 THAT THE EPISODE INVOLVING THE LEAVE WAS CAUSALLY RELATED TO BAKER'S
 REMOVAL FROM THE LIST.
 
    THE MORE DIFFICULT QUESTION, GIVEN THAT I FIND NELSON'S REMOVAL
 ACTION AGAINST BAKER TO BE MOTIVATED BY THE REVERSAL OF NELSON'S DENIAL
 OF BAKER'S LEAVE, IS WHETHER THIS REMOVAL FROM CONSIDERATION AS
 ALTERNATE RELIEF SUPERVISOR FOR A 60 DAY PERIOD CONSTITUTES AN UNFAIR
 LABOR PRACTICES AS ALLEGED.
 
    IN ORDER TO SUSTAIN A VIOLATION OF SECTION 19(A)(1) AND (2)
 ANTI-UNION ANIMUS MUST BE PROVEN.  THIS RECORD WILL NOT SUPPORT SUCH A
 FINDING.  WHEN THE UNION BROUGHT THE LEAVE ISSUE TO THE ATTENTION OF
 MANAGEMENT, IT WAS PROMPTLY RESOLVED (WHETHER OR NOT THE GRIEVANCE
 PROCEDURE WAS BEING UTILIZED).  I VIEW MR. NELSON'S ACTION TO BE
 MOTIVATED BY HIS PERSONAL IRRITATION WITH BAKER INDIVIDUALLY, NOT
 BECAUSE THE LEAVE ISSUE MAY HAVE BEEN HANDLED THROUGH THE GRIEVANCE
 PROCEDURE, OR BECAUSE BAKER BELONGED TO A UNION.  I DO NOT ASCRIBE ANY
 ANTI-UNION BIAS TO HIS ACT OF REMOVING BAKER FROM CONSIDERATION AS AN
 ALTERNATE RELIEF SUPERVISOR ESPECIALLY SINCE BAKER HAS BEEN RESTORED TO
 THE LIST.  VETERANS ADMINISTRATION REGIONAL HOSPITAL, HONOLULU, HAWAII
 AND SERVICE EMPLOYEES INTERNATIONAL UNION, A/SLMR 976, (FEBRUARY 1,
 1978).
 
    VIOLATION OF SECTION 19(A)(4)
 
    REGARDING THE ALLEGED VIOLATION OF SECTION 19(A)(4), I CONCUR WITH
 THE ACTIVITY'S POSITION THAT THERE IS NO EVIDENCE THAT MR. BAKER WAS
 DISCIPLINED OR DISCRIMINATED AGAINST BECAUSE HE FILED A COMPLAINT OR
 GAVE TESTIMONY UNDER THIS ORDER.  LIKEWISE, THERE IS NO EVIDENCE THAT
 WOULD SUPPORT A FINDING THAT SECTION 1 OF THE ORDER WAS VIOLATED, IN
 THAT MR. BAKER WAS IN ANY WAY INHIBITED OR PREVENTED FROM ENGAGING IN
 UNION ACTIVITIES.
 
    FOR THE FOREGOING REASON, I CONCLUDE THAT THE UNION HAS FAILED TO
 PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE ACTIVITY HAS VIOLATED
 SECTION 19(A)(1)(2) AND (4) AND SECTION 1 OF THE ORDER AS ALLEGED.
 
                              RECOMMENDATION
 
    IT IS RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                             ROBERT G. MAHONY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 23, 1979
 
    WASHINGTON, D.C.
 
    /1/ THE ADMINISTRATIVE LAW JUDGE FOUND THAT "(I)N ORDER TO SUSTAIN A
 VIOLATION OF SECTION 19(A)(1) AND (2) ANTI-UNION ANIMUS MUST BE PROVEN."
 IT IS NOTED HOWEVER THAT UNDER ASSISTANT SECRETARY PRECEDENT ANIMUS NEED
 NOT BE PRESENT TO SUPPORT A FINDING OF AN INDEPENDENT SECTION 19(A)(1)
 VIOLATION.  DEPARTMENT OF DEFENSE, ARKANSAS NATIONAL GUARD, 1 A/SLMR
 274, 275, A/SLMR NO. 53 (1971).
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /3/ SECTION 1 OF THE ORDER STATES:
 
    SECTION 1.  POLICY.  (A) EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE
 FEDERAL GOVERNMENT HAS THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN
 FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
 EXERCISE OF THIS RIGHT.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
 ORDER, THE RIGHT TO ASSIST A LABOR ORGANIZATION EXTENDS TO PARTICIPATION
 IN THE MANAGEMENT OF THE ORGANIZATION AND ACTING FOR THE ORGANIZATION IN
 THE CAPACITY OF AN ORGANIZATION REPRESENTATIVE, INCLUDING PRESENTATION
 OF ITS VIEWS TO OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR
 OTHER APPROPRIATE AUTHORITY.  THE HEAD OF EACH AGENCY SHALL TAKE THE
 ACTION REQUIRED TO ASSURE THAT EMPLOYEES IN THE AGENCY ARE APPRISED OF
 THEIR RIGHTS UNDER THIS SECTION, AND THAT NO INTERFERENCE, RESTRAINT,
 COERCION, OR DISCRIMINATION IS PRACTICED WITHIN HIS AGENCY TO ENCOURAGE
 OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION.
 
    (B) PARAGRAPH (A) OF THIS SECTION DOES NOT AUTHORIZE PARTICIPATION IN
 THE MANAGEMENT OF A LABOR ORGANIZATION OR ACTING AS A REPRESENTATIVE OF
 SUCH AN ORGANIZATION BY A SUPERVISOR, EXCEPT AS PROVIDED IN SECTION 24
 OF THIS ORDER, OR BY AN EMPLOYEE WHEN THE PARTICIPATION OR ACTIVITY
 WOULD RESULT IN A CONFLICT OR APPARENT CONFLICT OF INTEREST OR OTHERWISE
 BE INCOMPATIBLE WITH LAW OR WITH THE OFFICIAL DUTIES OF THE EMPLOYEE.
 
    SECTION 19 OF THE ORDER STATES, IN PERTINENT PART:
 
    UNFAIR LABOR PRACTICES.  (A) AGENCY MANAGEMENT SHALL NOT--
 
    (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
 OF THE RIGHTS ASSURED BY THIS ORDER;
 
    (2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
 CONDITIONS OF EMPLOYMENT;
 
    (4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
 HE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER.
 
    /4/ THE TRANSCRIPT REFERS TO THE POSITIONS AS "RELEASE" SUPERVISOR.
 IT SHOULD BE "RELIEF" SUPERVISOR.  IT IS ALSO REFERRED TO AS ALTERNATE
 SUBSTITUTE SUPERVISOR.
 
    /5/ THE UNION CONTRACT PROVIDED THAT THE FIRST LINE SUPERVISOR WOULD
 MAKE THE INITIAL DETERMINATION ON GRANTING OR DENYING A LEAVE REQUEST.
 ON THIS DATE, MR. TYLER WAS OCCUPYING MR. NELSON'S DESK DUE TO THEIR
 RESPECTIVE "ACTING" POSITIONS, AND WAS THE FIRST LINE SUPERVISOR.
 NELSON TESTIFIED THAT HE JUST HAPPENED TO BE GOING THROUGH THE SHOP AND
 SAW THE LEAVE REQUEST ON WHAT WAS NORMALLY HIS DESK AND HE JUST
 DISAPPROVED IT.