Federal Aviation Science and Technological Association Division, National Association of Government Employees (Respondent) and Leland L. Spargo, Warner M. Hussong, Edwin L. Reisinger (Complainants)

 



[ v02 p802 ]
02:0802(103)CO
The decision of the Authority follows:


 2 FLRA No. 103
 
 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
 ASSOCIATION DIVISION, NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES
 Respondent
 
 and
 
 LELAND L. SPARGO, WARNER M. HUSSONG,
 EDWIN L. REISINGER
 Complainants
 
                                            Assistant Secretary
                                            Case No. 72-7821(CO)
 
                            DECISION AND ORDER
 
    ON OCTOBER 1, 1979, ADMINISTRATIVE LAW JUDGE EIL NASH, JR. ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING
 THAT THE RESPONDENT HAD ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN
 THE COMPLAINT.  THEREAFTER THE RESPONDENT AND COMPLAINANTS FILED
 EXCEPTIONS WITH RESPECT 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 SEC.  304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SEC. 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS (45
 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE
 FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SEC.  7135(B) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SEC. 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SEC. 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 THE SUBJECT
 CASE, INCLUDING THE RESPONDENT'S AND COMPLAINANTS' EXCEPTIONS, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.
 
    THE RESPONDENT AND COMPLAINANTS BOTH FILED EXCEPTIONS TO THE DECISION
 OF THE ADMINISTRATIVE LAW JUDGE.  THE AUTHORITY REJECTS THE RESPONDENT'S
 EXCEPTIONS WHICH MAINTAIN THAT THE ADMINISTRATIVE LAW JUDGE HAS NOT
 ADDRESSED THE ISSUES RAISED IN THE COMPLAINT.  RATHER THE AUTHORITY
 FINDS THAT THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE VIOLATIONS
 ALLEGED BY THE COMPLAINANTS ARE VALID.  THE AUTHORITY DENIES THE
 COMPLAINANTS' EXCEPTIONS PERTAINING TO THE ADMINISTRATIVE LAW JUDGE'S
 ORDER REGARDING THE GEOGRAPHIC AREA PRESCRIBED FOR THE POSTING OF NOTICE
 BY THE RESPONDENT UNION.  THE AUTHORITY FINDS THAT THE COMPLAINT ALLEGED
 A SPECIFIC VIOLATION OF THE ORDER IN THE RESPONDENT'S WESTERN REGION
 ONLY, AND NOT A VIOLATION BASED UPON THE NATIONWIDE PUBLICATION OF THE
 UNION'S POLICY.  MOREOVER, THE COMPLAINANTS' CHARGE WAS FILED OVER NINE
 (9) MONTHS AFTER THE RESPONDENT'S PUBLICATION.  /1/
 
                                   ORDER
 
    PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY AND SEC. 7135 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
 WHETHER OR NOT SUCH EMPLOYEES ARE MEMBERS OF THE FEDERAL AVIATION
 SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SEC. 1(A)
 OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ORDER.
 
    (A) REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
 WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
 THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
 
    (B) POST AT THE LOCAL BUSINESS OFFICES OF THE FEDERAL AVIATION
 SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, WESTERN REGIONAL OFFICES, RESPECTIVELY, AND ALL
 PLACES WHERE NOTICES TO MEMBERS AND OTHER EMPLOYEES ARE CUSTOMARILY
 POSTED, 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, AS INDICATED, BY THE PRESIDENT OF THE FEDERAL
 AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, AND THEY SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
 PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY
 POSTED.  THE PRESIDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
 NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) SUBMIT THE APPROPRIATE SIGNED COPIES OF SAID NOTICE TO THE
 ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.; THE
 ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WESTERN REGION, FOR
 POSTING IN CONSPICUOUS PLACES, WHERE THE RESPECTIVE UNIT EMPLOYEES ARE
 LOCATED WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE
 DAYS FROM THE DATE OF THE POSTING.
 
    (D) NOTIFY THE AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
 THIS ORDER, AS TO THE STEPS TAKEN IN COMPLIANCE HEREWITH.
 
    ISSUED, WASHINGTON, D.C., MARCH 7, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, 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 CODES FEDERAL SERVICE
 
                        LABOR-MANAGEMENT RELATIONS
 
           WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES AT:
 
        FEDERAL AVIATION ADMINISTRATION WESTERN REGION LOS ANGELES
 
                        ARTCC PALMDALE, CALIFORNIA
 
    WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN EXCLUSIVELY RECOGNIZED UNITS, SOLELY ON THE BASIS OF
 WHETHER OR NOT EMPLOYEES ARE MEMBERS OF THE FEDERAL AVIATION SCIENCE AND
 TECHNOLOGICAL ASSOCIATION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SEC. 1(A)
 OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
 WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
 THE FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
 
                           (LABOR ORGANIZATION)
 
    DATED:  . . . BY:  . . .
 
                    PRESIDENT, FEDERAL AVIATION SCIENCE
 
                       AND TECHNOLOGICAL ASSOCIATION
 
                     DIVISION, NATIONAL ASSOCIATION OF
 
                           GOVERNMENT EMPLOYEES
 
    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 MEMBERS OR 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:  WORLD TRADE CENTER, 350 S. FIGUEROA STREET, 10TH
 FLOOR, LOS ANGELES, CALIFORNIA 90071, AND WHOSE TELEPHONE NUMBER IS
 (213) 688-3805.
 
    LAWRENCE A. SUMP
 
    WESTERN REGIONAL VICE-PRESIDENT
 
    PROFESSIONAL AIRWAY SYSTEMS SPECIALISTS,
 
    SUITE 310, 333 HEGENBERGER ROAD
 
    OAKLAND, CALIFORNIA 94621
 
                           FOR THE COMPLAINANTS
 
    RONALD E. STEENSLAND, ESQ.
 
    WEST COAST COUNSEL, NATIONAL
 
    ASSOCIATION OF GOVERNMENT EMPLOYEES,
 
    SUITE "A", 3300 WEST OLIVE AVENUE
 
    BURBANK, CALIFORNIA 91505
 
                            FOR THE RESPONDENT
 
    BEFORE:  ELI HASH, JR.
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A COMPLAINT FILED ON NOVEMBER 7, 1978, UNDER EXECUTIVE
 ORDER 11491, AS AMENDED BY PROFESSIONAL AIRWAY SYSTEMS SPECIALISTS
 (HEREIN CALLED PASS), AGAINST FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
 ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 (HEREIN CALLED THE RESPONDENT) A NOTICE OF HEARING WAS ISSUED BY THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, LOS ANGELES,
 CALIFORNIA.  ALTHOUGH THIS PROCEEDING WAS INITIATED BEFORE THE ASSISTANT
 SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, THE INSTANT DECISION
 IS ISSUED IN THE NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT
 TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44, NO. 1,
 JANUARY 2, 1979 (5 C.F.R. 2400.2).
 
    THE COMPLAINT HEREIN ALLEGES IN SUBSTANCE THAT RESPONDENT VIOLATED
 SECTION 19(B)(1) BY ESTABLISHING A DISCRIMINATORY POLICY OF
 REPRESENTATION FOR NON-MEMBERS AND PUBLISHING SUCH POLICY IN ITS
 PUBLICATION FEDNEWS.  THE COMPLAINT ALLEGES FURTHER THAT, RESPONDENT'S
 AGENT HOWARD BURROUGHS, PRESIDENT OF THE WESTERN REGION IN COMPLIANCE
 WITH RESPONDENT'S POLICY, RESPONDED TO A REQUEST TO PROCESS GRIEVANCES
 FOR COMPLAINANT STATING THAT HE COULD NOT PROCESS THEIR GRIEVANCES SINCE
 THEY WERE NOT MEMBERS.  FINALLY, THE COMPLAINANT ALLEGES THAT
 RESPONDENT'S AGENT HOWARD BURROUGHS ATTEMPTED TO COERCE COMPLAINANTS
 INTO JOINING RESPONDENT BEFORE THEIR GRIEVANCE WOULD BE PROCESSED INTO
 THE NATIONAL HEADQUARTERS.
 
    A HEARING WAS HELD IN THE MATTER ON JULY 12, 1979, IN PALMDALE,
 CALIFORNIA.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
 EXAMINE AND CROSS-EXAMINE WITNESSES, AND ENTER EVIDENCE RELATED TO THE
 ISSUES HEREIN, AND TO FILE BRIEFS.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDING OF FACT,
 CONCLUSIONS OF LAW AND RECOMMENDATIONS.
 
                                   FACTS
 
    THE BASIC FACTS ARE SIMPLE AND UNDISPUTED AND THEREFORE NEED NOT BE
 RESTATED AT LENGTH.  AT ALL TIMES MATERIAL HEREIN, THE THREE
 COMPLAINANTS LELAND L. SPARGO, WARNER M. HUSSONG AND EDWIN L. REISINGER
 WERE EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION, WESTERN REGION AT
 THE LOS ANGELES ARTCC, IN PALMDALE, CALIFORNIA.  THE EXCLUSIVE
 REPRESENTATIVE OF COMPLAINANT'S BARGAINING UNIT IS THE RESPONDENT.  AT
 ALL TIMES MATERIAL HEREIN, NEITHER OF THE COMPLAINANTS WAS A MEMBER OF
 RESPONDENT.
 
    DURING FEBRUARY 1977, THE RESPONDENT PUBLISHED IN ITS NEWSLETTER
 FEDNEWS THE FOLLOWING NOTICE:
 
    NAGE LOCALS MUST ENFORCE THE FOLLOWING CONDITIONS UPON ANY COMPLAINT
 THEY RECEIVE TO BE PROCESSED.
 
    THESE CONDITIONS WILL BE ADHERED TO REGARDLESS OF RACE, CREED, COLOR,
 AGE, GRADE OR ANY OTHER DISCRIMINATORY CONDITION.
 
    NAGE MEMBERS:
 
                               NON-MEMBERS:
 
    1) REPRESENTATION ON ALL MATTERS GRIEVANCES, RECLASSIFICATION
 MATTERS, UNFAIR LABOR PRACTICE PROBLEMS, DISABILITY CLAIMS, (SIC)
 PROMOTION EXAMS, DISCRIMINATION COMPLAINTS, CIVIL SERVICE APPEALS, AND
 FEDERAL COURT APPEALS ON JOB-RELATED PROBLEMS.
 
              WE ARE OBLIGED TO GIVE YOU LOCAL REPRESENTATION
 
                        ONLY-- BUT WITHOUT NATIONAL
 
            ATTORNEYS (A FELLOW EMPLOYEE WILL REPRESENT YOU).
 
    2) YOU WILL RECEIVE THE SERVICES OF AN ATTORNEY AT NO COST TO YOU--
 THE MEMBERS.
 
             WE WILL NOT HANDLE CASES BEFORE THE CIVIL SERVICE
 
                        COMMISSION OR THE COURTS.
 
    3) REPRESENTATION BY ATTORNEYS AT NO COST TO YOU ON BASE AND OFF
 BASE.
 
    4) $10,000 ACCIDENT AND DISMEMBERMENT INSURANCE ON A 24-HOUR
 COVERAGE.
 
    5) FEDNEWS MAILED TO YOUR HOME MONTHLY.
 
    SUBSEQUENTLY, IN EARLY FEBRUARY 1978, THE COMPLAINANTS INITIATED AN
 INFORMAL GRIEVANCE AGAINST THE AGENCY INVOLVING AN INTERPRETATION OF
 RESPONDENT'S NEGOTIATED AGREEMENT, ARTICLE 40, RELATING TO THEIR RIGHT
 TO WORK REGULAR HOURS ON A SCHEDULED HOLIDAY.  ON FEBRUARY 10, 1978 THE
 GRIEVANCE WAS DENIED BY THEIR SUPERVISOR AND IN ACCORDANCE WITH ARTICLE
 56, SECTION 4 OF THE AGREEMENT, THE COMPLAINANTS SUBMITTED A FORMAL
 SECOND STEP GRIEVANCE TO THE SECTOR MANAGER.  A FURTHER UNFAVORABLE
 DECISION ON THE GRIEVANCES WAS RENDERED BY THE SECTOR MANAGER ON MARCH
 1, 1978.  AT THIS POINT THE COMPLAINANTS WERE REQUIRED UNDER THE
 AGREEMENT TO PROCESS THE GRIEVANCE THROUGH THE RESPONDENT'S
 REPRESENTATIVE IN THEIR SECTOR, HOWEVER, SINCE NO REPRESENTATIVE HAD
 BEEN DESIGNATED FOR THEIR SECTOR THE GRIEVANCE WAS MAILED TO
 RESPONDENT'S WESTERN REGION PRESIDENT HOWARD BURROUGHS, WHO HAD
 RESPONSIBILITY FOR PROCESSING THE GRIEVANCE FROM THAT POINT.
 
    IT IS UNDISPUTED THAT THE POSITION PUBLISHED IN THE FEBRUARY 1977
 FEDNEWS STILL EXISTED AT THE TIME THE GRIEVANCE HEREIN WAS FILED.
 
    A REPLY FROM MR. BURROUGHS DATED MARCH 11, 1978 STATED IN PART:
 
    AS YOU NO (SIC) DOUBT ARE AWARE, THE COST FOR ARBITRATION FROM PAST
 EXPERIENCE WILL RUN THE
 
    UNION APPROXIMATELY $1000 AND THE FAA THE SAME, NOW SURELY YOU DO NOT
 EXPECT THE PRESENT
 
    MEMBERS TO HAVE TO GO IT ALONE WHILE SOME FAA EMPLOYEES GO ALONG FOR
 THE RIDE, AND NOT
 
    PROVIDING THEIR (SIC) FAIR SHARE, BY BECOMING MEMBERS.  IF A BACK PAY
 ISSUE IS INVOLVED ONLY
 
    THE PEOPLE ON THE UNION'S (SIC) MEMBER IN GOOD STANDING LIST WILL BE
 AFFORDED THE OPPORTUNITY
 
    DUE TO THE HIGH COST OF ARBITRATION, WHICH HAS BEEN UPHELD BY THE
 COURTS.
 
    SINCE YOU SHOW THE DETERMINATION AND THE GUTS TO FILE A GRIEVANCE
 THEREBY STANDING UP FOR
 
    YOUR RIGHTS UNDER THE CONTRACT, WHY NOT TAKE ONE MORE STEP AND JOIN
 FASTA SO THAT WE CAN MOVE
 
    AS ONE AGAINST THE R.O.
 
    WHILE SOME TECHS. HOLD ALLEGIANCE (SIC) TO PASS (SIC) HOPING FOR A
 PIE IN THE SKY WHILE
 
    THEIR (SIC) DUES MONIES IS BEING USED STRICTLY TO PROVIDE MR.
 JOHANNSON WITH A $34000 SALARY
 
    PLUS $27000 FOR HIS ASSISTANT, WHILE NOT BEING ABLE TO REPRESENT
 ANYONE THROUGHOUT THE
 
    FAA.  FASTA NEEDS YOU AND EVIDENTLY YOU NEED FASTA SO I'LL BE GLAD TO
 FORWARD YOU A COPY OF
 
    THE FASTA NEWSLETTER AND 3 APPLICATION FORMS FOR YOU TO SIGN SO THAT
 I MAY PROCESS YOUR
 
    GRIEVANCE INTO THE NATIONAL HDQRS.  YOU (SIC) WILL MAKE ENOUGH ON ONE
 HOLIDAY TO PAY FOR A
 
    HALF A YEARS DUES.
 
    THE PRECISE FATE OF THE GRIEVANCE BETWEEN MARCH 11 AND JULY IS IN
 DISPUTE. THE ONLY DEFINITIVE EVIDENCE IS THAT THE GRIEVANCE WAS PLACED
 ON AN AGENCY PREPARED AGENDA FOR A QUARTERLY MEETING BETWEEN RESPONDENT
 AND THE AGENCY ON JULY 26, 1978 INDICATING THAT SOME POSITIVE ACTION WAS
 TAKEN ON THE GRIEVANCE.  THE RECORD SUGGESTS THAT THIS GRIEVANCE WAS
 HELD ALONG WITH OTHER GRIEVANCES INVOLVING DISPOSITION OF THE SAME ISSUE
 BEFORE AN ARBITRATOR.  IN ANY EVENT THE SUBJECT MATTER OF THE GRIEVANCE
 WAS RESOLVED BY THE DECISION OF AN ARBITRATOR IN DECEMBER, 1978.
 
                                CONCLUSIONS
 
    WITH REGARD TO THE FEDNEWS NOTICE OF FEBRUARY 1977, THE FEDERAL LABOR
 RELATIONS AUTHORITY IN NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER
 202, ET AL., 1 FLRA NO. 104 (AUGUST 30, 1979), CASES INVOLVING
 COMMUNICATIONS TO EMPLOYEES WHICH AFFORDED REPRESENTATION BY ATTORNEYS
 IN CERTAIN WORK-RELATED SITUATIONS WHEREAS NON-UNION MEMBERS WOULD
 RECEIVE REPRESENTATION BY NON-ATTORNEYS HELD THE COMMUNICATIONS:
 
    ESTABLISHED A POLICY OF DISPARATE TREATMENT AMONG EMPLOYEES IN THE
 EXCLUSIVELY RECOGNIZED
 
    UNITS, BASED SOLELY UPON UNION MEMBERSHIP.  THUS, THE NATURE OF THE
 REPRESENTATION PROVIDED BY
 
    THE EXCLUSIVE REPRESENTATIVE IS BASED UPON NEITHER THE MERITS OF THE
 INDIVIDUAL SITUATION NOR
 
    THE SKILLS OF THE INDIVIDUAL REPRESENTATIVE SELECTED TO REPRESENT THE
 UNIT EMPLOYEES.  SUCH
 
    CONDUCT IS INCONSISTENT WITH (RESPONDENT'S) OBLIGATION TO REPRESENT
 THE INTERESTS OF ALL
 
    EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
 LABOR ORGANIZATION
 
    MEMBERSHIP AS REQUIRED BY SECTION 10(E) OF THE ORDER AND IMPROPERLY
 INTERFERES WITH, RESTRAINS
 
    AND COERCES NON-UNION EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS TO
 REFRAIN FROM JOINING
 
    (RESPONDENT).
 
    IN ITS BRIEF RESPONDENT ARGUES THAT COMPLAINANTS HAD NO OCCASION TO
 COMPLAIN OF FASTA'S POLICY OF DENYING A LAWYER TO NON-MEMBERS AT THE
 ARBITRATION STAGE, SINCE THE QUESTION RAISED IN THEIR GRIEVANCE WAS
 SETTLED IN ARBITRATION IN ANOTHER REGION.  BASED ON THE AUTHORITY'S
 DECISION IN THE NTEU CASE THIS ARGUMENT IS MISPLACED.  THE AUTHORITY'S
 DECISION MAKES CLEAR THAT A POLICY OF DISPARATE TREATMENT BASED SOLELY
 UPON UNION MEMBERSHIP IS INCONSISTENT WITH A LABOR ORGANIZATION'S
 OBLIGATION TO REPRESENT ALL EMPLOYEES WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP.  THE FEDNEWS POLICY, WHICH WAS IN EXISTENCE AT
 THE TIME THE GRIEVANCES WERE FILED IN THIS MATTER, ON ITS FACE,
 DISTINGUISHES REPRESENTATION WHICH WILL BE AFFORDED RESPONDENT'S MEMBERS
 AS OPPOSED TO NON-MEMBERS.
 
    IN ADDITION THE MARCH 11, 1978 LETTER FROM WESTERN REGIONAL PRESIDENT
 BURROUGHS, WHICH RESPONDENT CHARACTERIZED IN ITS BRIEF AS CONTAINING
 SOME INJUDICIOUS REMARKS, RESTATED AND IMPLEMENTED RESPONDENT'S
 PUBLISHED POLICY AND DOES INDEED ATTEMPT TO COERCE COMPLAINANTS IN TO
 JOINING RESPONDENT BEFORE THEIR GRIEVANCE WAS PROCESSED.  WHILE
 RESPONDENT WOULD ARGUE THAT THE GRIEVANCE WAS PROCESSED IN A NORMAL
 FASHION, THE THRUST OF THE COMPLAINT CLEARLY IS AGAINST THE
 COMMUNICATION WHICH ESTABLISHED A POLICY OF DISPARATE TREATMENT AMONG
 EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNITS, BASED SOLELY ON UNION
 MEMBERSHIP.
 
    IN THESE CIRCUMSTANCES, WHERE SUCH A POLICY EXISTS, AND WHERE THE
 COMPLAINANTS WERE INFORMED THAT THEIR GRIEVANCES WOULD NOT BE PROCESSED
 TO COMPLETION IN THE SAME MANNER AS UNION MEMBERS BECAUSE OF THE
 EXISTING POLICY, THE QUESTION OF WHETHER OR NOT RESPONDENT DECIDED TO
 TAKE A DIFFERENT COURSE OF ACTION AT SOME LATER DATE IS IMMATERIAL.
 ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENT'S REPRESENTATION POLICY AS
 EXPRESSED IN THE FEDNEWS AND ITS RESTATEMENT IN THE MARCH 11, 1978
 LETTER TO COMPLAINANTS FROM PRESIDENT BURROUGHS VIOLATES SECTION
 19(B)(1) OF THE ORDER.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.25(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
 REGULATIONS, 5 C.F.R. SECTION 2400.2, FED. REG., VOL. 44, NO. 1, JANUARY
 2, 1979 HEREBY ORDERS THAT FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
 ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) AFFORDING DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN UNITS OF EXCLUSIVE RECOGNITION SOLELY ON THE BASIS OF
 WHETHER OR NOT SUCH EMPLOYEES ARE MEMBERS OF THE NATIONAL AVIATION
 SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SECTION
 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE ORDER:
 
    (A) REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
 WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
 THE NATIONAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
 
    (B) POST AT THE LOCAL BUSINESS OFFICES OF THE NATIONAL AVIATION
 SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, WESTERN REGIONAL OFFICES, RESPECTIVELY, AND AT ALL
 PLACES WHERE NOTICES TO MEMBERS AND OTHER EMPLOYEES ARE CUSTOMARILY
 POSTED, ATTACHED NOTICES MARKED "APPENDIX A", RESPECTIVELY ON FORMS TO
 BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED, AS INDICATED, BY THE PRESIDENT OF THE
 NATIONAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION DIVISION,
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND BY THE PRESIDENTS OF
 THE RESPECTIVE NATIONAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION
 DIVISION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCALS AND THEY
 SHALL BE POSTED AND MAINTAINED BY THE LOCAL PRESIDENTS FOR 60
 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED.  THE RESPECTIVE LOCAL
 PRESIDENTS SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) SUBMIT THE APPROPRIATE SIGNED COPIES OF SAID NOTICE TO THE
 ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.; THE
 ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, WESTERN REGION, FOR
 POSTING IN CONSPICUOUS PLACES, WHERE THE RESPECTIVE UNIT EMPLOYEES ARE
 LOCATED WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE
 DAYS FROM THE DATE OF THE POSTING.
 
    NOTIFY THE AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF
 THIS ORDER, AS TO THE STEPS TAKEN IN COMPLIANCE HEREWITH.
 
                              ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCT 1 1979
 
    WASHINGTON, D.C.
 
                                APPENDIX A
 
        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 FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
           WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES AT:
 
        FEDERAL AVIATION ADMINISTRATION AIRWAY FACILITIES DIVISION
 
                 AND REGIONAL FACILITIES WASHINGTON, D.C.
 
    WE WILL NOT AFFORD DIFFERING STANDARDS OF EMPLOYEE REPRESENTATION TO
 EMPLOYEES IN EXCLUSIVELY RECOGNIZED UNITS, SOLELY ON THE BASIS OF
 WHETHER OR NOT EMPLOYEES ARE MEMBERS OF THE FEDERAL AVIATION SCIENCE AND
 TECHNOLOGICAL ASSOCIATION, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 OR ITS LOCAL CHAPTER.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SECTION
 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    WE WILL REPRESENT ALL BARGAINING UNIT EMPLOYEES ON AN EQUAL BASIS AND
 WITH THE SAME STANDARD OF REPRESENTATION WITHOUT REGARD TO MEMBERSHIP IN
 THE NATIONAL TREASURY EMPLOYEES UNION, OR ITS LOCAL CHAPTER.
 
                           (LABOR ORGANIZATION)
 
    DATED:  . . . BY:  . . .
 
                                 PRESIDENT
 
    DATED:  . . . BY:  . . .
 
                       PRESIDENT, NATIONAL AVIATION
 
                         SCIENCE AND TECHNOLOGICAL
 
                      ASSOCIATION DIVISION, NATIONAL
 
                    ASSOCIATION OF GOVERNMENT EMPLOYEES
 
    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 MEMBERS OR 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 4041, FEDERAL BUILDING, 300 N. LOS ANGELES
 STREET, LOS ANGELES, CALIFORNIA 90012.
 
    /1/ IN CONFORMITY WITH SEC. 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.
 
 
 


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