General Services Administration, Region 9, Federal Protective Service Division, San Francisco, California (Respondent) and International Federation of Federal Police, Local 41 (Complainant) 

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[ v03 p153 ]
03:0153(22)CA
The decision of the Authority follows:


 3 FLRA No. 22
 
 GENERAL SERVICES ADMINISTRATION,
 REGION 9, FEDERAL PROTECTIVE
 SERVICE DIVISION
 SAN FRANCISCO, CALIFORNIA
 Respondent
 
 and
 
 INTERNATIONAL FEDERATION OF
 FEDERAL POLICE, LOCAL 41
 Complainant
 
                                            Assistant Secretary
                                            Case No. 70-6535(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
 ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES IN VIOLATION OF SEC. 19(A)(1)
 OF THE ORDER 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.  THE
 ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE RESPONDENT HAD NOT ENGAGED
 IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED THAT
 THOSE PORTIONS OF THE COMPLAINT BE DISMISSED.  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 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 EXCEPTIONS FILED BY THE PARTIES, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION ONLY TO THE EXTENT CONSISTENT HEREWITH.
 
    AS MORE FULLY SET FORTH IN THE ATTACHED RECOMMENDED DECISION AND
 ORDER, THE ADMINISTRATIVE LAW JUDGE (ALJ) CONCLUDED THAT THE ACTIVITY
 DID NOT VIOLATE SEC. 19(A)(1) OF THE ORDER BY INTERROGATING EMPLOYEES
 CONCERNING ALLEGED STATEMENTS MADE BY THE ACTIVITY'S SUPERVISOR AT A
 UNION MEETING.  IN THIS REGARD, THE ALJ FOUND THAT THE ACTIVITY STRICTLY
 LIMITED THE INQUIRY TO THE SUPERVISOR'S STATEMENTS, AND PROVIDED
 SUFFICIENT SAFEGUARDS AND ADEQUATE ASSURANCE TO THE AFFECTED EMPLOYEES
 THAT PURGED THE ACTION OF ANY UNLAWFUL CONNOTATIONS.  HOWEVER, HE FOUND
 VIOLATIVE OF SEC. 19(A)(1) AN ACTIVITY DIRECTIVE WHICH RESTRICTED THE
 USE OF LEAVE-WITHOUT-PAY WHEN REQUESTED FOR UNION ACTIVITY.  IN THIS
 REGARD, THE ALJ CONCLUDED THAT ANY POLICY WHICH SINGLED OUT UNION
 ACTIVITY AS AN UNACCEPTABLE REASON FOR GRANTING LEAVE-WITHOUT-PAY
 CONSTITUTED AN IMPERMISSIBLE LIMITATION ON THE RIGHTS PROVIDED FOR AND
 PROTECTED BY THE ORDER.
 
    CONTRARY TO THE CONCLUSION OF THE ALJ, THE AUTHORITY FINDS THAT THE
 ACTIVITY VIOLATED SEC. 19(A)(1) OF THE ORDER BY ITS ACTION IN
 INTERROGATING EMPLOYEES CONCERNING STATEMENTS ALLEGED TO HAVE BEEN MADE
 AT A UNION MEETING BY A SUPERVISOR.  IT IS WELL ESTABLISHED UNDER THE
 EXECUTIVE ORDER THAT INTERROGATION OF EMPLOYEES CONCERNING THEIR
 PARTICIPATION IN PROTECTED ACTIVITIES /1/ AND SPECIFICALLY INTERROGATION
 OF AN EMPLOYEE CONCERNING A UNION MEETING IS VIOLATIVE OF SEC. 19(A)(1)
 OF THE ORDER, SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS, 7 A/SLMR 1040, A/SLMR NO. 945(1977).  AN EXCEPTION TO THIS
 GENERAL RULE UNDER THE EXECUTIVE ORDER WAS RECOGNIZED IN GENERAL
 SERVICES ADMINISTRATION, REGION 10, AUBURN, WASHINGTON, 8 A/SLMR 192,
 A/SLMR NO. 985(1978).  THAT EXCEPTION PERTAINED TO EMPLOYEE
 INTERROGATION AS TO THE UNLAWFUL REMOVAL AND SUBSEQUENT DISCLOSURE AT A
 UNION MEETING OF CONFIDENTIAL AGENCY DOCUMENTS.  IN THAT CASE THE
 ASSISTANT SECRETARY HELD THAT THE INTERROGATION OF AN EMPLOYEE
 CONCERNING THE IDENTITY OF THOSE ATTENDING A UNION MEETING WAS LAWFUL
 WHERE THE INTERROGATION WAS CONDUCTED BY A REPRESENTATIVE OF THE
 AGENCY'S OFFICE OF INVESTIGATIONS PURSUANT TO AN ADMINISTRATIVE
 INVESTIGATION TO DETERMINE HOW A CONFIDENTIAL AGENCY DOCUMENT HAD BEEN
 REMOVED FROM THE AGENCY FILES AND DISCLOSED AT THE UNION MEETING, AND
 THE PERSON INTERROGATED WAS ASSURED THAT THIS WAS THE ONLY PURPOSE OF
 THE INTERROGATION.
 
    IN THE SUBJECT CASE, HOWEVER, THE AUTHORITY CONCLUDES THAT THE
 STATEMENTS ALLEGED TO HAVE BEEN MADE BY A SUPERVISOR AT THE UNION
 MEETING ARE NOT OF SUCH A NATURE AS WOULD JUSTIFY MANAGEMENT'S ACTIONS
 HEREIN.  THE AUTHORITY DOES NOT INTEND TO BELITTLE THE SERIOUSNESS OF
 THE SUPERVISOR'S ALLEGED STATEMENTS, OR THE CONCERN OF ACTIVITY
 MANAGEMENT WITH RESPECT TO SUCH ALLEGATIONS, NOR TO INDICATE CONDONATION
 MERELY BECAUSE THEY OCCURRED AT A UNION MEETING.  RATHER, IT IS THE
 AUTHORITY'S VIEW THAT ONLY THE MOST SERIOUS OF CIRCUMSTANCES WOULD
 JUSTIFY INTERROGATING EMPLOYEES CONCERNING ACTIVITIES AT A UNION
 MEETING.  MOREOVER, IT IS THE AUTHORITY'S VIEW THAT IN THE SUBJECT CASE
 THERE WERE ALTERNATIVE COURSES OF ACTION WHICH COULD HAVE BEEN TAKEN BY
 THE ACTIVITY, OTHER THAN THE INTERROGATION OF EMPLOYEES, TO ASCERTAIN
 WHETHER OR NOT THE ALLEGED STATEMENTS WERE MADE, AND TO CORRECT THEM IF
 THEY HAD BEEN MADE.
 
    HOWEVER, IN AGREEMENT WITH THE ALJ, THE AUTHORITY CONCURS THAT,
 ALTHOUGH THE ACTIVITY HAS WIDE DISCRETION IN ADMINISTERING
 LEAVE-WITHOUT-PAY FOR THE PURPOSE OF INSURING EFFICIENT OPERATIONS, IT
 CANNOT PRESCRIBE RULES WHICH INHIBIT, RESTRAIN OR COERCE EMPLOYEES IN
 THE EXERCISE OF PROTECTED RIGHTS.  /2/
 
                                   ORDER
 
    PURSUANT TO SEC. 2400.2 OF THE RULES AND REGULATIONS OF THE FEDERAL
 LABOR RELATIONS AUTHORITY AND SEC. 7135(B) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 GENERAL SERVICES ADMINISTRATION, REGION 9, FEDERAL PROTECTIVE SERVICE
 DIVISION, SAN FRANCISCO, CALIFORNIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERROGATING ITS EMPLOYEES ABOUT STATEMENTS MADE AND/OR EVENTS
 OCCURRING AT UNION MEETINGS.
 
    (B) UTILIZING MEMBERSHIP IN, AND/OR ACTIVITIES ON BEHALF OF, LOCAL
 41, INTERNATIONAL FEDERATION OF FEDERAL POLICE, THE EXCLUSIVE
 REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION, AS A
 FACTOR OR CRITERION IN DETERMINING WHETHER OR NOT TO GRANT LEAVE WITHOUT
 PAY.
 
    (C) 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 POLICIES OF THE ORDER:
 
    (A) NOTIFY MR. DANIEL A. JAIMEZ, THE PRESIDENT OF LOCAL 41,
 INTERNATIONAL FEDERATION OF FEDERAL POLICE, IN WRITING, THAT IT IS
 RESCINDING THAT PORTION OF ITS MEMORANDUM TO MR. JAIMEZ, DATED AUGUST
 11, 1978, CONTAINED IN PARAGRAPH NUMBERED 2, WHICH STATES:
 
    UNION ACTIVITIES IN CONJUNCTION WITH INTERNATIONAL FEDERATION OF
 FEDERAL POLICE WILL NOT
 
    NORMALLY BE CONSIDERED AN ACCEPTABLE REASON FOR GRANTING LWOP.
 
    (B) NOTIFY MR. DANIEL A. JAIMEZ, IN WRITING, THAT MEMBERSHIP IN,
 AND/OR ACTIVITIES ON BEHALF OF, LOCAL 41, INTERNATIONAL FEDERATION OF
 FEDERAL POLICE, OR ANY OTHER LABOR ORGANIZATION, WILL NOT BE A FACTOR OR
 CRITERION IN DETERMINING WHETHER OR NOT TO GRANT HIS REQUESTS FOR LEAVE
 WITHOUT PAY.
 
    (C) POST AT ITS FACILITIES LOCATED IN SAN FRANCISCO, CALIFORNIA,
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
 THE DIRECTOR, OR ACTING DIRECTOR, OF THE FEDERAL PROTECTIVE SERVICE
 DIVISION OF REGION 9, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING BULLETIN
 BOARDS AND OTHER PLACES WHERE NOTICES TO PROTECTIVE SERVICE EMPLOYEES
 ARE CUSTOMARILY POSTED.  THE DIRECTOR, OR ACTING DIRECTOR, SHALL TAKE
 REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (D) NOTIFY THE 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 8, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO 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 INTERROGATE OUR EMPLOYEES ABOUT STATEMENTS MADE AND/OR
 EVENTS OCCURRING AT UNION MEETINGS.
 
    WE WILL NOT UTILIZE MEMBERSHIP IN, AND/OR ACTIVITIES ON BEHALF OF,
 LOCAL 41, INTERNATIONAL FEDERATION OF FEDERAL POLICE, THE EXCLUSIVE
 REPRESENTATIVE OF OUR EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION AS A
 FACTOR OR CRITERION IN DETERMINING WHETHER OR NOT TO GRANT LEAVE WITHOUT
 PAY.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    WE WILL NOTIFY MR. DANIEL A. JAIMEZ, THE PRESIDENT OF LOCAL 41,
 INTERNATIONAL FEDERATION OF FEDERAL POLICE, IN WRITING, THAT WE ARE
 RESCINDING THAT PORTION OF OUR MEMORANDUM TO MR. JAIMEZ, DATED AUGUST
 11, 1978, CONTAINED IN PARAGRAPH NUMBERED 2, WHICH STATES:
 
    UNION ACTIVITIES IN CONJUNCTION WITH INTERNATIONAL FEDERATION OF
 FEDERAL POLICE WILL NOT
 
    NORMALLY BE CONSIDERED AN ACCEPTABLE REASON FOR GRANTING LWOP.
 
    WE WILL NOTIFY MR. DANIEL A. JAIMEZ, IN WRITING, THAT MEMBERSHIP IN,
 AND/OR ACTIVITIES ON BEHALF OF, LOCAL 41, INTERNATIONAL FEDERATION OF
 FEDERAL POLICE, OR ANY OTHER LABOR ORGANIZATION, WILL NOT BE A FACTOR OR
 CRITERION IN DETERMINING WHETHER OR NOT TO GRANT HIS REQUESTS FOR LEAVE
 WITHOUT PAY.
 
   .          .          .          .
 
 
                           (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, FEDERAL LABOR RELATIONS AUTHORITY, 450 GOLDEN GATE
 AVENUE, ROOM 11408, P.O. BOX 36016, SAN FRANCISCO, CALIFORNIA 94102,
 WHOSE TELEPHONE NUMBER IS:  (415)556-8105.  IN DETERMINING WHETHER OR
 NOT TO GRANT HIS REQUESTS FOR LEAVE WITHOUT PAY.
 
    /1/ SEE VANDENBURG AIR FORCE BASE, 4392 AEROSPACE SUPPORT GROUP, 4
 A/SLMR 272, A/SLMR NO. 382 (1974);  UNITED STATES AIR FORCE, VANDENBURG
 AIR FORCE BASE, CALIFORNIA, 7 A/SLMR 85, A/SLMR NO. 786 (1977).
 
    /2/ 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.