Naval Resale System Field Support Office Commissary Store Group (Respondent) and National Association of Government Employees, Local R4-45 (Charging Party) 



[ v05 p311 ]
05:0311(42)CA
The decision of the Authority follows:


 5 FLRA No. 42
 
 NAVY RESALE SYSTEM FIELD
 SUPPORT OFFICE COMMISSARY
 STORE GROUP
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL R4-45
 Charging Party
 
                                            Case No. 3-CA-493
 
                            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 AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IS 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.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE NAVY RESALE SYSTEM FIELD SUPPORT OFFICE
 COMMISSARY STORE GROUP SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY MAKING
 THREATS OF REPRISAL BECAUSE THEY SOUGHT REPRESENTATION BY LOCAL R4-45,
 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 THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) POST AT ITS NAVY RESALE SYSTEM FIELD SUPPORT OFFICE COMMISSARY
 STORE GROUP 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 AN APPROPRIATE OFFICIAL OF RESPONDENT, AND SHALL BE
 POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
 CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
 NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  SUCH OFFICIAL SHALL TAKE
 REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, 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., MARCH 19, 1981
 
                       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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
 EXERCISE OF THEIR STATUTORY RIGHTS BY THREATENING THEM WITH REPRISAL
 BECAUSE THEY SEEK REPRESENTATION BY LOCAL R4-45, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED
 
                                    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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III,
 WHOSE ADDRESS IS:  1133 15TH STREET, NW., ROOM 300, WASHINGTON, D.C.,
 20005, AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SUSAN SHINKMAN, ESQUIRE &
    BRUCE D. ROSENSTEIN, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    WALTER B. BAGBY, ESQUIRE
    FOR THE RESPONDENT
 
    BEFORE:  JOHN H. FENTON
    CHIEF ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 30, 1980, BY THE
 REGIONAL DIRECTOR, REGION 3, FEDERAL LABOR RELATIONS AUTHORITY.  THE
 COMPLAINT ALLEGED THAT RESPONDENT UNLAWFULLY INTERROGATED AND
 THREATENED
 EMPLOYEE WILLIAM TATEM CONCERNING HIS EFFORTS TO SEEK THE ASSISTANCE OF
 THE UNION.
 
    A HEARING WAS HELD ON JUNE 19, 1980, IN NORFOLK, VIRGINIA.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
 AND TO INTRODUCE EVIDENCE.  UPON THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    RESPONDENT OPERATES A COMMISSARY STORE AT ITS NAVAL AIR STATION IN
 OCEANA, VIRGINIA.  LIEUTENANT WILLIAM RUSSELL IS THE COMMISSARY STORE
 OFFICER, SUPERVISING OVER 90 EMPLOYEES.  WILLIAM TATEM IS A MEATCUTTER
 AT THE OCEANA FACILITY.
 
    ON JULY 17, 1979 TATEM WAS INJURED AT WORK, AND WAS THEREAFTER ABSENT
 FOR ABOUT THREE WEEKS.  HE SOUGHT ADVANCED SICK LEAVE (AND/OR
 COMPENSATION) WITHOUT IMMEDIATE SUCCESS.  HE VISITED THE OFFICE SEVERAL
 TIMES AND SPOKE TO LT. RUSSELL ABOUT THE STATUS OF HIS REQUEST.  WHETHER
 BECAUSE OF HIS OWN FAILURE TO MAKE TIMELY SUBMISSION OF THE NECESSARY
 PAPERS, RUSSELL'S FAILURE TO FORWARD THEM EXPEDITIOUSLY, OR DELAYS IN
 THE PAYROLL UNIT, TATEM HAD NOT BEEN GRANTED SICK LEAVE WHEN HE RECEIVED
 HIS CHECK ON AUGUST 30.  HE THEN WENT TO RUSSELL'S OFFICE TO COMPLAIN,
 AND WAS APPARENTLY GIVEN THE NAME AND ADDRESS OF A PAYROLL UNIT EMPLOYEE
 HE SHOULD SEE.  HE THEN CALLED UNION PRESIDENT SINGLETON AT NORFOLK
 NAVAL BASE, WHO CALLED RUSSELL'S SUPERIOR, CAPTAIN MURRAY.  SINGLETON
 REPORTED BACK THAT MURRAY SAID THE LEAVE REQUEST HAD BEEN APPROVED AND
 THAT TATEM SHOULD SPEAK TO RUSSELL'S ASSISTANT, CHIEF PETTY OFFICER
 WHITE.  TATEM THEN WENT TO RUSSELL'S OFFICE, WHERE WHITE CONFIRMED THE
 APPROVAL, SAID IT SHOULD HAVE BEEN REFLECTED IN HIS PAYCHECK, AND LEFT
 THE OFFICE.  RUSSELL IN SOME ANGER AND FRUSTRATION, THEN SAID, IN
 SUBSTANCE:
 
    WHY, WHEN YOU HAVE PROBLEMS, DO YOU GO TO SINGLETON ALL THE TIME?
 THINGS WOULD GO A LOT
 
    SMOOTHER IF YOU WOULD COME TO ME INSTEAD OF HIM.  I RUN THE
 COMMISSARY, NOT SINGLETON.  /1/
 
                                CONCLUSION
 
    EXCEPT FOR THE STATEMENT REPORTED BY SNIPES, THERE IS NO EVIDENCE
 THAT LT. RUSSELL WAS HOSTILE TO THE UNION AS SUCH.  THERE IS EVIDENCE,
 IN FACT, THAT HE DEALT REGULARLY WITH THE STEWARD FOR THE COMMISSARY.  I
 THEREFORE REJECT THE NOTION THAT HE SOUGHT TO INDUCE EMPLOYEES TO BYPASS
 THEIR COLLECTIVE BARGAINING REPRESENTATIVE AND DEAL DIRECTLY WITH HIM.
 RATHER, I CONCLUDE THAT RUSSELL REACTED AGAINST PROBLEMS BEING TAKEN TO
 UNION PRESIDENT SINGLETON, AND HENCE TO HIS SUPERIOR, CAPTAIN MURRAY.
 AS A NAVAL OFFICER, HE WAS CLEARLY ANGERED AND EMBARRASSED BY HIS
 FAILURE TO KEEP WHAT HE REGARDED TO BE RELATIVELY SMALL MATTERS FROM THE
 CAPTAIN, AT LEAST UNTIL EVERY EFFORT HAD BEEN MADE TO SOLVE THEM AT HIS
 LEVEL.  HIS REMARKS TO STITH MAKE CLEAR THAT HIS CONCERN WAS THAT
 SINGLETON DID NOT COME TO HIM FIRST, BUT INSTEAD CONTACTED THE CAPTAIN.
 HIS RESPECT FOR THE CHAIN-OF-COMMAND CONCEPT AND HIS DETERMINATION TO
 SHIELD HIS SUPERIOR MOTIVATED HIS STATEMENT.  HOWEVER, HE EXPRESSED
 HIMSELF IN A WAY WHICH CLEARLY VIOLATED SECTION 7116(A)(1).
 
    LT RUSSELL COULD HAVE DISCUSSED HIS LEGITIMATE CONCERNS WITH THE
 UNION.  CONTRACTS PROVIDE FOR THE ORDERLY ELEVATION OF FORMAL
 GRIEVANCES, AND UNDERSTANDINGS CAN BE REACHED FOR THE ORDERLY HANDLING
 OF INFORMAL GRIEVANCES.  A REQUEST THAT SINGLETON ATTEMPT TO IRON OUT
 COMMISSARY PROBLEMS WITH RUSSELL BEFORE INVOLVING THE CAPTAIN, MIGHT
 HAVE AVOIDED ALL OF THIS.  INSTEAD, RUSSELL SPOKE TO TATEM, REMINDING
 HIM ANGRILY THAT HE WAS THE BOSS AND THAT THINGS WOULD GO MORE SMOOTHLY
 IF PROBLEMS WERE BROUGHT TO HIM AND SINGLETON WAS LEFT OUT OF SUCH
 MATTERS.  IT IS OBVIOUS THAT A SUBORDINATE WOULD ATTACH OMINOUS
 OVERTONES TO SUCH A STATEMENT, AND WOULD THINK TWICE ABOUT EXERCISING
 HIS RIGHT TO SEEK SINGLETON'S ASSISTANCE IN THE RESOLUTION OF AN
 EMPLOYMENT PROBLEM.  IT FOLLOWS THAT RUSSELL'S STATEMENT WAS COERCIVE OF
 THE STATUTORY RIGHT OF EMPLOYEE TO REQUEST THEIR UNION'S REPRESENTATION.
  I FURTHER CONCLUDE THAT RUSSELL'S QUESTION CONCERNING WHY TATEM WENT TO
 SINGLETON WAS RHETORICAL, A SIMPLE STATEMENT THAT TATEM SHOULD NOT HAVE
 DONE SO.  AS IT WAS NOT AN INQUIRY IT COULD NOT CONSTITUTE UNLAWFUL
 INTERROGATION VIOLATIVE OF SECTION 7116(A)(1).
 
    HAVING CONCLUDED THAT RESPONDENT VIOLATED SECTION 7116(A)(1), I
 RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ENTER THE FOLLOWING
 ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, AND SECTION 2423.29 OF THE RULES AND
 REGULATIONS, IT IS HEREBY ORDERED THAT THE NAVAL RESALE SYSTEM FIELD
 SUPPORT OFFICE COMMISSARY STORE GROUP, NORFOLK, VIRGINIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY MAKING
 THREATS OF REPRISAL
 
    BECAUSE THEY SOUGHT REPRESENTATION BY LOCAL R4-45, NATIONAL
 ASSOCIATION OF GOVERNMENT
 
    EMPLOYEES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHT ASSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES
 
    OF THE STATUTE:
 
    (A) POST AT ITS NAVAL RESALE SYSTEMS FIELD SUPPORT OFFICE COMMISSARY
 STORE GROUP 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 AN APPROPRIATE
 OFFICIAL OF RESPONDENT, AND
 
    SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
 THEREAFTER IN CONSPICUOUS
 
    PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES
 TO EMPLOYEES ARE
 
    CUSTOMARILY POSTED.  SUCH OFFICIAL SHALL TAKE REASONABLE STEPS TO
 ENSURE 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 OF THIS ORDER,
 
    AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                              JOHN H. FENTON
 
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCTOBER 10, 1980
 
    WASHINGTON, D.C.
 
        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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
 EXERCISE OF THEIR STATUTORY RIGHTS BY THREATENING THEM WITH REPRISAL
 BECAUSE THEY SEEK REPRESENTATION BY LOCAL R4-45, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
                                   BY:
 
    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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III,
 WHOSE ADDRESS IS:  1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C.,
 20005.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ RUSSELL TESTIFIED THAT TATEM APPROACHED HIM SAYING THAT HE WISHED
 TO SEE CAPTAIN MURRAY, AND THAT HE TRIED TO DISSUADE HIM ON EMINENTLY
 SENSIBLE CHAIN-OF-COMMAND GROUNDS.  I CREDIT TATEM'S VERSION, WHICH WAS
 STRONGLY REINFORCED BY SEVERAL OTHER CREDIBLE WITNESSES TO HIGHLY
 COMPARABLE CONDUCT ON RUSSELL'S PART.  THUS, TREASURE STITH, WHEN
 UNSUCCESSFUL IN HER EFFORT TO HAVE HER HOURS ADJUSTED, CONTACTED UNION
 PRESIDENT SINGLETON UP AT THE NORFOLK "COMPLEX" (HEADQU