Oklahoma City Air Logistics Center (AFLC) Tinker Air Force Base, Oklahoma (Respondent) and American Federation of Government Employees, Local 916, AFL-CIO (Charging Party)



[ v06 p159 ]
06:0159(32)CA
The decision of the Authority follows:


 6 FLRA No. 32
 
 OKLAHOMA CITY AIR LOGISTICS
 CENTER (AFLC) TINKER AIR
 FORCE BASE, OKLAHOMA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 916
 Charging Party
 
                                            Case No. 6-CA-175
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT
 HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT
 CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.  THE
 JUDGE FURTHER FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN OTHER ALLEGED
 UNFAIR LABOR PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH
 RESPECT TO THEM.  EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND
 ORDER WERE FILED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL
 COUNSEL, AND OPPOSITION BRIEFS WERE FILED BY THE RESPONDENT AND THE
 GENERAL COUNSEL.
 
    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 (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS INCLUDING HIS RECOMMENDED ORDER, EXCEPT FOR THOSE
 PORTIONS OF THE RECOMMENDED DECISION AND ORDER SPECIFICALLY DISCUSSED
 HEREIN.
 
    THE JUDGE RECOMMENDED DISMISSAL OF THE PORTIONS OF THE COMPLAINT
 REGARDING CERTAIN STATEMENTS MADE ABOUT THE UNION TO BARGAINING UNIT
 EMPLOYEES BY RESPONDENT'S SUPERVISOR GIBSON.  THUS, THE JUDGE FOUND THAT
 SUPERVISOR GIBSON SAID TO AN EMPLOYEE THAT "THE UNION ISN'T WORTH THE
 PAPER IT IS PRINTED ON" AND "$11.00 A MONTH ISN'T WORTH THE MONEY
 INVESTED IN IT." ALSO, GIBSON SAID TO ANOTHER EMPLOYEE, "DO YOU KNOW
 YOUR UNION DUES ARE GOING UP?" FINALLY, THE JUDGE FOUND GIBSON TOLD A
 THIRD EMPLOYEE THAT "THE UNION HAS TO REPRESENT YOU WHETHER YOU ARE A
 MEMBER OR NOT, DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR MONEY." AT
 THE TIME SUCH STATEMENTS WERE MADE, THERE WAS NO REPRESENTATIONAL
 ELECTION PENDING AT THE ACTIVITY.  THE JUDGE FOUND THAT THE STATEMENTS
 WERE PROTECTED BY SECTION 7116(E) OF THE STATUTE, /1/ AND THAT EVEN IF
 NOT WITHIN THE PURVIEW OF THAT SECTION, UNDER THE CIRCUMSTANCES OF THIS
 CASE THE STATEMENTS DID NOT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES
 IN THE EXERCISE OF PROTECTED RIGHTS.  IN SO FINDING, THE JUDGE
 DETERMINED THAT SECTION 7116(E) WAS INTENDED TO ADDRESS TWO SEPARATE AND
 DISTINCT SITUATIONS:
 
    FIRST, THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT OR OPINION,
 EXCLUDING REPRESENTATIONAL
 
    ELECTIONS, WHICH IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR
 FORCE OR PROMISE OF
 
    BENEFIT AND IS NOT MADE UNDER COERCIVE CONDITIONS, SHALL NOT
 CONSTITUTE AN UNFAIR LABOR
 
    PRACTICE.  SECOND, STATEMENTS . . . IN RELATION TO REPRESENTATIONAL
 ELECTIONS WHICH ARE
 
    PROTECTED ONLY IF SUCH STATEMENT (1) PUBLICIZES THE FACT OF AN
 ELECTION AND ENCOURAGES
 
    EMPLOYEES TO VOTE, (2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE
 OR MISLEADING STATEMENT,
 
    OR (3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
 LABOR-MANAGEMENT RELATIONS AND
 
    REPRESENTATION, AND SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT
 OF REPRISAL OR FORCE OR
 
    PROMISE OF BENEFIT AND IS NOT MADE UNDER COERCIVE CONDITIONS
 CONSTITUTE AN UNFAIR LABOR
 
    PRACTICE OR CONSTITUTE GROUNDS FOR SETTING ASIDE AN ELECTION.
 
    THUS, THE JUDGE CONCLUDED THAT THE PURPOSE AND INTENT OF SECTION
 7116(E) IS TWO-FOLD.  FIRST, IT IS INTENDED TO ASSURE NEUTRALITY IN
 REPRESENTATION ELECTIONS.  SECOND, OUTSIDE OF A REPRESENTATIONAL
 CONTEXT, SECTION 7116(E) PROTECTS THE EXPRESSION OF PERSONAL VIEWS,
 ARGUMENTS OR OPINIONS BY MANAGEMENT, EMPLOYEES, OR UNION REPRESENTATIVES
 AS LONG AS SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR
 PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS.  THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S REASONING, AS WELL AS HIS ANALYSIS
 AND CONCLUSION THAT GIBSON'S STATEMENTS HEREIN DID NOT VIOLATE SEC.
 7116(A)(1) OF THE STATUTE, AS THERE WAS NO THREAT OF REPRISAL OR FORCE
 OR PROMISE OF BENEFIT, AND THE COMMENTS WERE NOT MADE UNDER COERCIVE
 CONDITIONS.
 
    AT THE HEARING, THE COMPLAINT WAS AMENDED AT THE REQUEST OF THE
 GENERAL COUNSEL TO INCLUDE AN ALLEGATION THAT RESPONDENT MAINTAINED A
 NO-SOLICITATION RULE WHICH PROHIBITED ALL PAID-TIME SOLICITATION IN
 VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE.  SPECIFICALLY, THE
 GENERAL COUNSEL ARGUED THAT RESPONDENT'S PROHIBITION OF SOLICITATION
 DURING AN EMPLOYEE'S FREE OR NONDUTY TIME, ALBEIT PAID-TIME, WAS
 VIOLATIVE OF THE STATUTE.  THE RESPONDENT CONCEDES THAT SUCH A RULE WAS
 MAINTAINED AND THAT THE PROHIBITION OF SOLICITATION WAS EXTENDED TO
 INCLUDE EMPLOYEES' PAID BREAK AND LUNCH PERIODS.  MOREOVER, PROBATIONARY
 EMPLOYEE BEASLEY WAS ADMONISHED FOR HIS BREAK-TIME SOLICITATION
 ACTIVITIES;  INDEED, HIS ALLEGED IMPROPER SOLICITATION WAS GIVEN BY THE
 ACTIVITY AS A REASON FOR HIS TERMINATION.
 
    THE JUDGE FOUND THAT THE RESPONDENT'S MAINTENANCE OF THE RULE
 PROHIBITING SOLICITATION OF MEMBERSHIP BY THE UNION DURING ALL PAID
 BREAKS AND ITS DISCIPLINE OF PROBATIONARY EMPLOYEE BEASLEY FOR VIOLATION
 OF THIS RULE CONSTITUTED VIOLATIONS OF SECTION 7116(A)(1) OF THE
 STATUTE.  IN SO FINDING, THE JUDGE NOTED THE BASIC DIFFERENCE BETWEEN
 DUTY TIME (CLOCK TIME) AND WORKING TIME, AND NOTED FURTHER THAT
 NO-SOLICITATION RULES WHICH SEEK TO PROHIBIT SOLICITATION DURING ALL
 DUTY TIME VIOLATE THE RIGHTS OF EMPLOYEES.
 
    THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION IN THIS REGARD.  WE NOTE
 THAT THE RESPONDENT HAS GRANTED DESIGNATED REST BREAKS AND PAID LUNCH
 BREAKS PURSUANT TO DEPARTMENT OF AIR FORCE REGULATION 40-610 AND THAT
 SECTION 7131(B) OF THE STATUTE REQUIRES THAT "SOLICITATION OF MEMBERSHIP
 . . . BE PERFORMED DURING THE TIME THE EMPLOYEE IS IN A NONDUTY STATUS."
 HOWEVER WHERE, AS HERE, IT HAS BEEN DETERMINED THAT EMPLOYEES, AT THE
 DISCRETION OF MANAGEMENT, HAVE BEEN ASSIGNED PERIODS OF TIME DURING
 WHICH THE PERFORMANCE OF JOB FUNCTIONS IS NOT REQUIRED (I.E., PAID FREE
 TIME), THE AUTHORITY FINDS THAT SUCH TIME FALLS WITHIN THE MEANING OF
 THE TERM "NONDUTY STATUS" AS USED IN SECTION 7131(B).  THUS,
 SOLICITATION OF MEMBERSHIP DURING SUCH TIME IS PERMISSIBLE.
 ACCORDINGLY, AS CONCLUDED BY THE JUDGE, THE RESPONDENT'S CONDUCT IN
 MAINTAINING A RULE PROHIBITING SOLICITATION OF MEMBERSHIP DURING SUCH
 BREAKS AND IN DISCIPLINING EMPLOYEE BEASLEY FOR VIOLATING SUCH AN
 UNLAWFUL RULE, VIOLATED THE STATUTE.
 
                                 ORDER /2/
 
    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 OKLAHOMA CITY AIR LOGISTICS CENTER
 (AFLC) TINKER AIR FORCE BASE, OKLAHOMA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERROGATING EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE THEY
 GOT INFORMATION ABOUT JOINING AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 916, THE EXCLUSIVE REPRESENTATIVE OF ITS
 EMPLOYEES OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
 
    (B) PROMULGATING, MAINTAINING, OR ENFORCING ANY DIRECTIVE,
 REGULATION, OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES DURING PAID
 MEAL AND BREAK PERIODS WHERE NO JOB FUNCTIONS ARE REQUIRED FROM
 SOLICITING ANY OTHER EMPLOYEES AT THEIR WORK PLACE FOR MEMBERSHIP ON
 BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 916, OR ANY OTHER LABOR ORGANIZATION, PROVIDING THERE IS NO
 INTERFERENCE WITH THE WORK OF THE AGENCY.
 
    (C) DISCHARGING, DISCIPLINING, OR TREATING IN A DISPARATE MANNER JOHN
 BEASLEY IN REGARD TO HIS CONDITIONS OF EMPLOYMENT IN ORDER TO INTERFERE
 WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE OF ANY RIGHT ASSURED BY
 THE STATUTE.
 
    (D) APPLYING AND/OR ENFORCING EXISTING PROCEDURES, POLICIES AND
 REGULATIONS, IN A DISPARATE MANNER WHICH INTERFERES WITH, RESTRAINS, OR
 COERCES MEMBERS OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 916, OR ANY OTHER LABOR ORGANIZATION.
 
    (E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS FORMER
 OR A SUBSTANTIALLY EQUIVALENT POSITION WITHOUT PREJUDICE TO HIS
 SENIORITY OR OTHER RIGHTS AND PRIVILEGES AND MAKE HIM WHOLE, CONSISTENT
 WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME HE MAY HAVE
 SUFFERED BY REASON OF HIS UNLAWFUL TERMINATION AS A PROBATIONARY
 EMPLOYEE, BY PAYING TO HIM A SUM OF MONEY EQUAL TO THE AMOUNT HE WOULD
 HAVE EARNED OR RECEIVED FROM THE DATE OF HIS TERMINATION TO THE DATE
 OFFERED TO HIM TO RETURN TO WORK, LESS ANY AMOUNT EARNED THROUGH OTHER
 EMPLOYMENT DURING THE ABOVE-NOTED PERIOD.
 
    (B) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE
 ADMONISHMENT GIVEN JOHN BEASLEY ON MAY 26, 1979, REGARDING HIS LAWFUL
 SOLICITATION ACTIVITIES, AND ACKNOWLEDGE SUCH REMOVAL TO BEASLEY IN
 WRITING.
 
    (C) POST AT ITS FACILITIES AT TINKER AIR FORCE BASE COPIES OF THE
 ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
 AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
 COMMANDING OFFICER, OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER
 AIR FORCE BASE, 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.  THE COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VI, 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., JUNE 25, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER BY THE FEDERAL LABOR
 
          RELATIONS AUTHORITY 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 EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE
 THEY GOT INFORMATION ABOUT JOINING AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 916, THE EXCLUSIVE REPRESENTATIVE OF OUR
 EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
 
    WE WILL NOT PROMULGATE, MAINTAIN, OR ENFORCE ANY DIRECTIVE,
 REGULATION, OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES DURING PAID
 MEAL OR BREAK PERIODS WHERE NO JOB FUNCTIONS ARE REQUIRED FROM
 SOLICITING ANY OTHER EMPLOYEES AT THEIR WORK PLACE FOR MEMBERSHIP ON
 BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 916, OR ANY OTHER LABOR ORGANIZATION, PROVIDING THERE IS NO INTERFERENCE
 WITH THE WORK OF THE AGENCY.
 
    WE WILL NOT DISCHARGE, DISCIPLINE, OR TREAT IN A DISPARATE MANNER
 JOHN BEASLEY IN REGARD TO HIS CONDITIONS OF EMPLOYMENT IN ORDER TO
 INTERFERE WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE OF ANY RIGHT
 ASSURED BY THE STATUTE.
 
    WE WILL NOT APPLY AND/OR ENFORCE EXISTING PROCEDURES, POLICIES AND
 REGULATIONS IN A DISPARATE MANNER WHICH INTERFERES WITH, RESTRAINS, OR
 COERCES MEMBERS OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 916, OR ANY OTHER LABOR ORGANIZATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
 
    WE WILL OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS
 FORMER OR A SUBSTANTIALLY EQUIVALENT POSITION WITHOUT PREJUDICE TO HIS
 SENIORITY OR OTHER RIGHTS AND PRIVILEGES AND MAKE HIM WHOLE, CONSISTENT
 WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME HE MAY HAVE
 SUFFERED BY REASON OF THE UNLAWFUL TERMINATION OF HIS EMPLOYMENT DURING
 HIS PROBATIONARY PERIOD, BY PAYING TO HIM A SUM OF MONEY EQUAL TO THE
 AMOUNT HE WOULD HAVE EARNED OR RECEIVED FROM THE DATE OF HIS TERMINATION
 TO THE DATE OFFERED TO HIM TO RETURN TO WORK, LESS ANY AMOUNT EARNED BY
 HIM THROUGH OTHER EMPLOYMENT DURING THE ABOVE-NOTED PERIOD.
 
    WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE
 ADMONISHMENT GIVEN JOHN BEASLEY ON MAY 26, 1979, REGARDING HIS LAWFUL
 SOLICITATION ACTIVITIES, AND ACKNOWLEDGE THE REMOVAL TO BEASLEY IN
 WRITING.
 
                           (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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VI, WHOSE
 ADDRESS IS:  ROOM 450, OLD POST OFFICE BUILDING, BRYAN & ERVAY STREETS,
 DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS 214-767-4996.
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    STEVEN M. ANGEL, ESQUIRE
 
    ALVARO GARCA, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    MAJOR MICHAEL J. PETHERICK
 
                            FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
 
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5
 U.S.C. 7101, ET SEQ., /3/ AND THE RULES AND REGULATIONS ISSUED
 THEREUNDER, 5 C.F.R.CHAPTER XIV /4/ .
 
    A CHARGE WAS FILED BY THE CHARGING PARTY, LOCAL 916, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER ALSO REFERRED
 TO AS THE "UNION"), ON JULY 26, 1979, ALLEGING VIOLATIONS OF SECTIONS
 16(A)(1), (2), (4) AND (8) OF THE STATUTE (G.C. EXH. 1(A));  AND ON
 NOVEMBER 20, 1979, THE CHARGING PARTY FILED AN AMENDED CHARGE
 (ERRONEOUSLY TITLED "FIRST AMENDED COMPLAINT") WHICH ALLEGED VIOLATIONS
 OF SECTION 16(A)(1), (2) AND (8) OF THE STATUTE (G.C. EXH.  1(D)).  ON
 DECEMBER 11, 1979, THE REGIONAL DIRECTOR ISSUED A COMPLAINT AND NOTICE
 OF HEARING (G.C.  EXH. 1(G)).  THE COMPLAINT, IN PARAGRAPH 7, ALLEGES
 VIOLATIONS OF SECTIONS 16(A)(1) AND (5) OF THE STATUTE, ALTHOUGH NEITHER
 THE ORIGINAL NOR THE AMENDED CHARGE ALLEGED A VIOLATION OF SECTION
 16(A)(5) OF THE STATUTE;  THE COMPLAINT SET FORTH NO FACTUAL ALLEGATIONS
 OF A 16(A)(5) VIOLATION;  AND NO VIOLATION OF 16(A)(5) WAS SHOWN.
 ACCORDINGLY, THE ALLEGATION IN PARAGRAPH 7 OF THE COMPLAINT ALLEGING A
 VIOLATION OF SECTION 16(A)(5) OF THE STATUTE IS DISMISSED.
 
    AT THE HEARING, GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT TO ADD A
 NEW SUBPARAGRAPH (E) TO PARAGRAPH 5.  THIS MOTION TO AMEND THE COMPLAINT
 WAS GRANTED ON JANUARY 16, 1980, AND A RECESS WAS TAKEN UNTIL THE
 FOLLOWING DAY, JANUARY 17, 1980, TO ALLOW GENERAL COUNSEL AND RESPONDENT
 TIME TO PREPARE FOR LITIGATION OF THE ISSUES RAISED BY THE AMENDMENT.
 SUBPARAGRAPH (E) OF THE COMPLAINT AS AMENDED, PROVIDES AS FOLLOWS:
 
                                   "5.
 
    ("AT ALL TIMES MATERIAL HEREIN, RESPONDENT INTERFERED WITH,
 RESTRAINED, AND COERCED, AND IS
 
    INTERFERING WITH, RESTRAINING AND COERCING THE EMPLOYEES IN THE
 EXERCISE OF RIGHTS GUARANTEED
 
    BY 5 U.S.C. 7102 BY THE FOLLOWING ACTS AND CONDUCT.)
 
   .          .          .          .
 
 
    "(E) BY MAINTAINING AT ALL MATERIAL TIMES HEREIN AN UNLAWFUL RULE
 PROHIBITING SOLICITATION
 
    OF UNION MATTERS DURING BREAK AND LUNCH PERIODS." (TR. 297, 317-318,
 319-320)
 
    THERE IS NO QUESTION WHATEVER THAT PARAGRAPH 5 OF THE COMPLAINT
 ASSERTS CONDUCT IN VIOLATION OF SECTION 16(A)(1) AND THAT PARAGRAPH 7 OF
 THE COMPLAINT ALLEGES THAT THE CONDUCT DESCRIBED IN PARAGRAPHS 5 AND 6
 VIOLATED SECTION 16(A)(1) OF THE STATUTE.  THE PROBLEM IS THAT, WHILE
 PARAGRAPH 6 OF THE COMPLAINT ASSERTS CONDUCT IN VIOLATION OF SECTION
 16(A)(2) OF THE STATUTE, PARAGRAPH 7 OF THE COMPLAINT DOES NOT ALLEGE A
 VIOLATION OF SECTION 16(A)(2) OF THE STATUTE, AS RESPONDENT VERY
 CORRECTLY ASSERTS IN ITS BRIEF.  I HAVE NO DOUBT THAT THE REFERENCE IN
 PARAGRAPH 7 OF THE COMPLAINT TO 16(A)(5) WAS A TYPOGRAPHICAL ERROR AND
 THAT REFERENCE WAS INTENDED TO 16(A)(2).  HAD A MOTION BEEN MADE TO
 AMEND THE COMPLAINT TO ALLEGE A VIOLATION OF 16(A)(2), I WOULD HAVE
 GRANTED SUCH MOTION;  BUT, IN THE ABSENCE OF A TIMELY MOTION, MAY I
 TREAT THE COMPLAINT AS ALLEGING A 16(A)(2) VIOLATION?  IN U.S.
 DEPARTMENT OF THE AIR FORCE, AIR FORCE COMMUNICATIONS SERVICE (AFCS),
 2024TH COMMUNICATIONS SQUADRON, MOODY AIR FORCE BASE, GEORGIA, A/SLMR
 NO.  248, 3 A/SLMR 116(1973), JUDGE KRAMER STATED,
 
    " . . . ALTHOUGH THE COMPLAINT DOES NOT IN TERMS CHARGE A VIOLATION
 OF SECTION 19(A)(4),
 
    THE BODY OF THE COMPLAINT CHARGES CONDUCT THAT WOULD BE A VIOLATION
 OF THAT SUBSECTION AND THE
 
    COMPLAINT IS HERE TREATED AS CHARGING A VIOLATION OF THE THREE
 SUBSECTIONS." (3 A/SLMR AT
 
    117).
 
    HOWEVER, JUDGE KRAMER FOUND THAT THE ALLEGATIONS OF THE COMPLAINT HAD
 NOT BEEN SUSTAINED BY A PREPONDERANCE OF THE EVIDENCE AND HE RECOMMENDED
 THAT THE COMPLAINT BE DISMISSED FOR FAILURE OF PROOF.  THE ASSISTANT
 SECRETARY AFFIRMED AND DISMISSED THE COMPLAINT WITHOUT ADDRESSING THE
 ABOVE STATEMENT.  IN DEPARTMENT OF TRANSPORTATION, OFFICE OF THE
 SECRETARY OF TRANSPORTATION, CASE NO. 22-5891(CA), 6 A/SLMR SUPP.
 120(1976), JUDGE CHAITOVITZ, STATED, IN FOOTNOTE 1, AS FOLLOWS:
 
    "ALTHOUGH REFERENCE TO SECTION 19(A)(1) WAS APPARENTLY INADVERTANTLY
 OMITTED FROM PART 2 OF
 
    THE COMPLAINT, IT WAS INCLUDED IN THE NOTICE OF HEARING.  FURTHER,
 THE SECTION 19(A)(1)
 
    ALLEGATION WAS FULLY LITIGATED AND ARGUED AND THE ACTIVITY HAS NOT AT
 ANY TIME RAISED AN
 
    OBJECTION TO ITS CONSIDERATION.  THEREFORE, THIS MATTER IS BEING
 TREATED AS IF THE COMPLAINT
 
    HAD BEEN AMENDED TO INCLUDE A SECTION 19(A)(1) ALLEGATION." (6 A/SLMR
 SUPP. AT 121 N.1)
 
    A VIOLATION OF 19(A)(1) WAS FOUND WHICH THE ASSISTANT SECRETARY
 AFFIRMED, A/SLMR NO. 672, 6 A/SLMR 337(1976).
 
    HERE, AS IN MOODY AIR FORCE BASE, SUPRA, AND DEPARTMENT OF
 TRANSPORTATION, SUPRA, THE BODY OF THE COMPLAINT CHARGES CONDUCT THAT
 WOULD BE VIOLATIVE OF SECTION 16(A)(2).  INDEED, THERE WERE VARIOUS
 REFERENCES TO THE ALLEGED 16(A)(2) VIOLATION (SEE, FOR EXAMPLE TR.  307.
  OBVIOUSLY, THE REPORTER'S REFERENCE "711682" MEANT "7116(A)(2)" AND
 SUCH REFERENCES ARE HEREBY CORRECTED TO READ "7116(A)(2)").
 
    NEVERTHELESS, UNLIKE DEPARTMENT OF TRANSPORTATION, SUPRA, RESPONDENT,
 IN ITS BRIEF, HAS OBJECTED TO ANY FINDING OF A VIOLATION OF 16(A)(2) FOR
 THE REASON THAT THE COMPLAINT HAS NOT BEEN AMENDED TO SO CHARGE.  WHERE
 THE BODY OF THE COMPLAINT ALLEGES FACTS WHICH WOULD CONSTITUTE A
 VIOLATION OF SEC. 16(A)(2) AND REFERENCE IS MADE AT THE HEARING TO A
 16(A)(2) VIOLATION WITHOUT OBJECTION BY RESPONDENT IT MIGHT, CONSISTENT
 WITH MOODY AIR FORCE BASE, SUPRA, AND DEPARTMENT OF TRANSPORTATION,
 SUPRA, SERVE THE ENDS OF JUSTICE TO TREAT THE COMPLAINT AS IF IT HAD
 BEEN AMENDED TO CHARGE A VIOLATION OF 16(A)(2) IF IT WERE NECESSARY TO
 SO TREAT THE COMPLAINT IN ORDER TO REMEDY THE CONDUCT ALLEGED AS AN
 UNFAIR LABOR PRACTICE IN PARAGRAPH 6 OF THE COMPLAINT.  HOWEVER AS THE
 CONDUCT, ALLEGED IN PARAGRAPH 6 OF THE COMPLAINT, WOULD CONSTITUTE A
 VIOLATION OF SECTION 16(A)(1), AS WELL AS OF SECTION 16(A)(2), I
 CONCLUDE THAT NO VIOLATION OF SECTION 16(A)(2) SHOULD BE CONSIDERED AND
 EXPRESSLY DECLINE TO DECIDE WHETHER A COMPLAINT COULD BE SO TREATED
 WHERE RESPONDENT HAS, SPECIFICALLY, OBJECTED AND GENERAL COUNSEL HAS NOT
 SOUGHT TO AMEND THE COMPLAINT;  HOWEVER, THE CONDUCT ALLEGED IN
 PARAGRAPH 6 OF THE COMPLAINT WILL BE CONSIDERED AS AN ALLEGATION OF
 VIOLATION OF SECTION 16(A)(1) OF THE STATUTE, AS SPECIFICALLY ALLEGED IN
 PARAGRAPH 7 OF THE COMPLAINT, AND ANY SUCH CONDUCT FOUND TO VIOLATE
 SECTION 16(A)(1) OF THE STATUTE WILL BE REMEDIED PURSUANT TO SECTION
 16(A)(1) OF THE STATUTE.  CF., UNITED STATES DEPARTMENT OF THE ARMY,
 FORT POLK, LOUISIANA, A/SLMR NO. 1100, 8 A/SLMR 880(1978).
 
    PURSUANT TO THE NOTICE OF HEARING, A HEARING WAS DULY HELD BEFORE THE
 UNDERSIGNED IN OKLAHOMA CITY, OKLAHOMA, ON JANUARY 15, 16 AND 17, 1980.
 ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED, AND TO PRESENT ORAL
 ARGUMENT.  AT THE CLOSE OF THE TESTIMONY, FEBRUARY 18, 1980, WAS FIXED
 AS THE DATE FOR MAILING POST-HEARING BRIEFS;  HOWEVER, AS THIS DATE FELL
 ON A RECOGNIZED FEDERAL HOLIDAY, AT THE REQUEST OF COUNSEL FOR THE
 GENERAL COUNSEL, AND WITH THE CONCURRENCE OF COUNSEL FOR RESPONDENT,
 THIS TIME WAS, ORALLY, EXTENDED BY THE UNDERSIGNED TO FEBRUARY 19, 1980.
  COUNSEL FOR EACH PARTY HAS, ACCORDINGLY, TIMELY MAILED A MOST HELPFUL
 BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED.  UPON THE BASIS OF THE
 ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, /5/ I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                         FINDINGS AND CONCLUSIONS
 
    THIS CASE CONCERNS ACTIVITY WITHIN THE AIR FREIGHT TERMINAL AT TINKER
 AIR FORCE BASE.  THE AIR FREIGHT TERMINAL HANDLES THE LOADING AND
 UNLOADING OF AIR CARGO AND HAS THREE SHIFTS:  DAY SHIFT, 8:00 A.M. TO
 4:00 P.M.; /6/ SWING SHIFT 4 P.M. TO 12 MIDNIGHT;  AND GRAVEYARD SHIFT,
 12 MIDNIGHT TO 8:00 A.M.  INDEED, THE ACTIVITY INVOLVED IN THIS
 PROCEEDING CONCERNS INDIVIDUALS INVOLVED PRINCIPALLY, IF NOT
 EXCLUSIVELY, IN HANDLING THE PREPARATION OF FREIGHT FOR LOADING.
 PREPARATION OF FREIGHT FOR LOADING INVOLVES THE PLACING OF DESIGNATED
 ITEMS, AS SHOWN ON A LOADING MANIFEST, ON AN ALUMINUM PALLET, REFERRED
 TO AS "BUILDING" A PALLET, AND WHEN THE PALLET IS BUILT IT IS COVERED
 WITH NETTING AND PLASTIC, IS WEIGHED AND IS THEN READY TO BE LOADED ON
 AN AIRCRAFT.  FREIGHT LOADERS LOCATE THE ITEMS ON EACH MANIFEST AND
 PLACE THEM ON THE PALLET.  OBVIOUSLY, THE NUMBER OF ITEMS, BOXED OR
 CRATED, PER COMPLETE PALLET VARIES DEPENDING ON THE SIZE AND WEIGHT OF
 THE INDIVIDUAL ITEMS BUT WITNESSES STATED THAT THE NORMAL RANGE WAS
 BETWEEN 60 AND 120 ITEMS PER PALLET.  EMPLOYEES IN THE AIR FREIGHT
 TERMINAL ARE PAID FOR BREAKS, INCLUDING LUNCH, WHICH IS 20 MINUTES.
 
    THE UNFAIR LABOR PRACTICES ALLEGED BROADLY FALL INTO THREE
 CATEGORIES:  A) DISPARAGING STATEMENTS MADE BY RESPONDENT ABOUT THE
 UNION;  B) PROHIBITION OF SOLICITATION OF UNION MEMBERSHIP, ETC. DURING
 PAID HOURS OF EMPLOYMENT, INCLUDING BREAKS;  AND C) ALLEGED DISPARATE
 TREATMENT OF JOHN BEASLEY BECAUSE OF HIS ACTIVITY AS A UNION STEWARD
 CULMINATING IN HIS DISCHARGE PRIOR TO COMPLETION OF HIS PROBATIONARY
 PERIOD.
 
    1.  JOHN BEASLEY BEGAN WORK FOR RESPONDENT IN SEPTEMBER, 1978, AS A
 WG-5 FREIGHT LOADER, AND WAS INITIALLY ASSIGNED TO THE DAY SHIFT.  MR.
 BEASLEY WAS PERMANENTLY TRANSFERRED TO THE GRAVEYARD SHIFT AFTER ABOUT
 45 DAYS.  ON DECEMBER 22, 1978, MR. BEASLEY WAS GIVEN HIS 90 DAY
 EVALUATION AND RECEIVED A SCORE OF 97 (OUT OF 100).  HIS SUPERVISOR ON
 THE DAY SHIFT WAS MR.  JAMES GIBSON.
 
    2.  IN JANUARY, 1979, MR. BEASLEY JOINED THE UNION AND WAS APPOINTED
 SHOP STEWARD.  FROM THE RECORD, IT APPEARS THAT MR. BEASLEY WAS THE
 FIRST SHOP STEWARD IN THE AIR FREIGHT TERMINAL SINCE 1975.  MR. BEASLEY
 ADVISED MR. HAWES, A SUPERVISOR, IN JANUARY OF HIS APPOINTMENT AS
 STEWARD AND THE UNION ALSO ADVISED RESPONDENT'S LABOR RELATIONS OFFICE
 WHICH, BY MEMORANDUM DATED JANUARY 24, 1979, TRANSMITTED TO ALL
 SUPERVISORS THE UNION STEWARDS LIST WHICH INCLUDED MR. BEASLEY (G.C.
 EXH. 20, ATTACHMENT).  HOWEVER, MR. BEASLEY ATTENDED AIRCRAFT FREIGHT
 LOADING SCHOOL FROM THE LAST PART OF FEBRUARY OR THE FIRST PART OF
 MARCH, 1979, SO THAT HIS ACTIVITY AS A STEWARD WAS UNEVENTFUL UNTIL
 AFTER MID-MARCH, 1979.
 
    3.  IN FEBRUARY, 1979, MR. JOHN MILUS, A NEW EMPLOYEE, ASKED HIS
 SUPERVISOR, MR. JAMES GIBSON, WHETHER THERE WAS UNION REPRESENTATION AND
 MR. MILUS TESTIFIED THAT MR. GIBSON SAID THERE WAS A UNION BUT IT, " . .
 . REALLY WASN'T WORTH THE PAPER IT WAS PRINTED ON, THAT $11.00 A MONTH,
 IT WASN'T WORTH THE MONEY THAT WAS INVESTED IN IT." (TR. 172).  /7/
 
    4.  IN MARCH, 1979, MR. GIBSON AGAIN EVALUATED MR. BEASLEY AND
 TESTIFIED THAT HE GAVE HIM A 96 (OUT OF 100) WHICH, IF ROUNDED OFF MAY
 HAVE BEEN 97.  /8/ MR. GIBSON TESTIFIED THAT HE EVALUATED MR. BEASLEY AS
 "BORDERLINE";  HOWEVER, MR. DECKER, GIBSON'S SUPERVISOR STATED THAT A
 RATING OF 97 WAS ABOVE AVERAGE.
 
    5.  FOLLOWING THE MARCH, 1979, EVALUATIONS, AN EMPLOYEE, GEORGETTE
 THOMPSON, CAME TO SEE MR. BEASLEY CONCERNING A POSSIBLE GRIEVANCE OVER
 HER EVALUATION.  MR.  BEASLEY'S MEETING WITH MS. THOMPSON WAS
 INTERRUPTED BY MR. DENNIS BRAY, A TEMPORARY WAREHOUSE SUPERVISOR, BUT
 WHEN INFORMED BY MR. BEASLEY THAT HE WAS A UNION STEWARD AND WAS ENGAGED
 IN UNION BUSINESS, MR. BRAY DID NOT ATTEMPT TO RESTRICT THIS MEETING.
 THE NEXT MORNING, HOWEVER, MR. BRAY TESTIFIED THAT HE HAD GONE TO MR.
 DALLAS CURLING, SECTION CHIEF, AND ASKED IF HE WERE AWARE THAT HE, BRAY,
 HAD A UNION STEWARD ON HIS SHIFT, NAMELY MR. BEASLEY.  MR. CURLING
 RESPONDED THAT HE WAS NOT AWARE OF THAT BUT WOULD CHECK IT OUT.  MR.
 BRAY TESTIFIED THAT MR. CURLING STATED,
 
    "HE TOLD ME THAT THE UNION WAS A JOKE, AND THEY HAD MANAGED TO REMOVE
 ALL UNION STEWARDS IN
 
    THE PAST, AND THEY WOULDN'T HAVE NO TROUBLE WITH BEASLEY." (TR.
 216).
 
    6.  IN LATE MARCH, 1979, MR. BEASLEY CALLED MR. FISHER (HENRY A.), A
 SUPERVISOR ON THE NIGHT (SWING) SHIFT /9/ AND TOLD HIM HE WOULD NOT BE
 IN THAT NIGHT AND ASKED THAT HE RELAY THE MESSAGE TO HIS SUPERVISOR, MR.
 GIBSON, WHEN HE CAME TO WORK AT MIDNIGHT;  BUT MR.  FISHER TOLD MR.
 BEASLEY THAT HE WAS NOT ALLOWED TO TAKE A MESSAGE FOR ANOTHER SUPERVISOR
 AND THAT HE WOULD NOT GIVE MR. GIBSON THE MESSAGE.  MR. BEASLEY DID NOT
 REPORT FOR THE GRAVEYARD SHIFT AND THE FOLLOWING NIGHT MR. GIBSON ASKED
 WHY HE HAD NOT REPORTED THE PRECEEDING NIGHT AND MR. BEASLEY TOLD HIM HE
 HAD CALLED AND HAD TALKED TO MR. FISHER;  BUT, LATER MR. GIBSON HANDED
 MR. BEASLEY A LETTER OF ORAL ADMONISHMENT FOR FAILURE TO CALL IN.  MR.
 BEASLEY LATER INFORMED MR. GIBSON THAT HE INTENDED TO FILE A GRIEVANCE
 IF THE ORAL ADMONISHMENT WERE NOT REMOVED AND MR. GIBSON REMOVED THE
 ORAL ADMONISHMENT.
 
    7.  PRIOR TO APRIL, 1979, MR. BEASLEY HAD SIGNED UP ONLY ONE NEW
 MEMBER;  BUT THEREAFTER HE SIGNED UP APPROXIMATELY 20 NEW UNION MEMBERS,
 INCLUDING MR. JOHN BUCKHEISTER.  THERE IS NO DOUBT THAT MR. GIBSON
 LEARNED OF MR. BEASLEY'S ACTIVITY BUT THERE IS DISAGREEMENT AS TO WHEN
 HE LEARNED THAT MR. BEASLEY WAS RECRUITING NEW MEMBERS.  MR. GIBSON
 DENIED THAT HE KNEW OF SUCH ACTIVITY UNTIL MR. MCNEELY BROUGHT IT TO HIS
 ATTENTION ON MAY 24, 1979;  DENIED THAT HE HAD DISCUSSED THE UNION WITH
 EITHER MR. MILUS (SEE PARAGRAPH 3, ABOVE) OR WITH MR. BUCKHEISTER WHO
 TESTIFIED THAT HE HAD JOINED THE UNION AND THAT, THEREAFTER, MR. GIBSON
 HAD ASKED WHERE HE HAD GOT INFORMATION TO JOIN THE UNION AND THAT HE,
 BUCKHEISTER, HAD RESPONDED THAT HE HAD GOT THE INFORMATION ABOUT THE
 UNION FROM HIS UNION STEWARD, JOHN BEASLEY.  ABOUT TWO WEEKS LATER, MR.
 BUCKHEISTER TESTIFIED, MR. GIBSON AGAIN CAME TO HIM AND ASKED "IF I KNEW
 MY UNION DUES WERE GOING TO GO UP" AND THAT HE, BUCKHEISTER, HAD SAID HE
 DID NOT KNOW, BUT THAT HE DIDN'T CARE AND WAS GOING TO RETAIN HIS UNION
 MEMBERSHIP.  HOWEVER, MR. GIBSON ADMITTED THAT HE HAD "HEARD THAT A LOT
 OF THE MEMBERS THERE THEN HAD JOINED" (TR. 33);  MR. BRAY TESTIFIED THAT
 MR. GIBSON HAD ASKED HIM IF HE KNEW THAT MR. BEASLEY HAD SOLICITED 40
 PEOPLE INTO THE UNION AND HAD FURTHER ASKED IF HE, BRAY, WAS AWARE THAT
 BEASLEY GOT TEN TO FIFTEEN DOLLARS FOR EVERY CONTACT THAT HE GOT FOR THE
 UNION (TR. 224);  MR. WILLIAM DECKER, FOREMAN IN CHARGE OF THE WAREHOUSE
 SECTION, TESTIFIED THAT MR. GIBSON HAD TOLD HIM THAT A NUMBER OF
 EMPLOYEES HAD JOINED THE UNION, AND MR. BEASLEY TESTIFIED THAT ON MAY
 26, MR. GIBSON HAD APPROACHED HIM AND SAID HE UNDERSTOOD HE, BEASLEY,
 HAD BEEN SIGNING A LOT OF PEOPLE INTO THE UNION "AND MAKING SOME BIG
 BUCKS DOING THIS.  AND I TOLD HIM THAT IT WAS TRUE AND . . .  THAT FOR
 EVERYBODY HE SIGNED INTO THE UNION HE'D GET TEN BUCKS TOO.  AND HE JUST
 LAUGHED AND WALKED OFF." (TR. 133).  I DO NOT CREDIT MR. GIBSON'S
 DENIALS AND, RATHER, CREDIT THE TESTIMONY OF MESSRS. MILUS, BUCKHEISTER,
 BRAY AND DECKER AND FIND THAT MR. GIBSON WAS WELL AWARE OF MR. BEASLEY'S
 ACTIVE SOLICITATION OF UNION MEMBERSHIP WELL PRIOR TO THE MCNEELY
 INCIDENT OF MAY 24, 1979.
 
    8.  ON MAY 24, 1979, MR. MCNEELY WENT TO MR. GIBSON'S OFFICE AND
 ASKED HIS OPINION ABOUT THE UNION.  MR. MCNEELY TESTIFIED THAT MR.
 GIBSON STOPPED HIM AND ASKED IF BEASLEY HAD BEEN TRYING TO GET HIM TO
 JOIN THE UNION AND WHEN HE ASKED "WHY", MR. GIBSON HAD REPLIED, "BEASLEY
 WASN'T SUPPOSED TO SAY ANYTHING ABOUT THE UNION AND I WASN'T SUPPOSED TO
 LISTEN" (TR.  166) AND MR. GIBSON ASKED HIM TO GIVE A WRITTEN STATEMENT.
  MR. GIBSON TESTIFIED THAT HE TOLD MCNEELY THAT A UNION IS "LIKE ANY
 OTHER ORGANIZATION, IT'S GOOD IF IT'S USED PROPERLY, AND HE (MCNEELY)
 TOLD ME THAT MR. BEASLEY HAD BEEN TALKING TO HIM ABOUT IT EARLIER, ABOUT
 JOINING" (TR. 31) AND READILY ADMITTED THAT HE ASKED MR. MCNEELY TO GIVE
 A STATEMENT BECAUSE IT "IS AGAINST THE REGULATIONS TO DISCUSS OR
 PARTICIPATE IN IT, OR TRY TO PROCURE MEMBERS WHILE ON THE JOB." (TR.
 31).  MR.  BEASLEY TESTIFIED THAT MR. MCNEELY HAD ASKED HIM ABOUT
 JOINING THE UNION AND THAT HE HAD TOLD HIM HE WOULD GET HIM AN
 APPLICATION ON THEIR BREAK.  MR. BRAY TESTIFIED THAT MR. GIBSON TOLD HIM
 HE HAD TOLD MCNEELY THAT THE UNION HAD TO REPRESENT HIM WHETHER HE WAS A
 MEMBER OR NOT, THAT UNION DUES WERE HIGH AND THAT HE HATED TO SEE HIM
 WASTE HIS MONEY (TR. 223-224).  ON MAY 26, 1979, MR. SHARP INFORMED MR.
 BEASLEY THAT HE WAS NOT TO DISCUSS ANY UNION MATTER WITH ANY EMPLOYEE
 WHILE ON DUTY UNLESS AN APPROPRIATE TIME HAD BEEN SCHEDULED AND VERIFIED
 BY HIM, SHARP, AND THAT HE WAS NOT TO PUT ANY LETTER OR ARTICLES FROM
 THE UNION ON THE BULLETIN BOARD.  MR. BEASLEY TESTIFIED THAT HE HAD SEEN
 MR. MCNEELY IN THE SECTION OFFICE WITH MR. DECKER AND MR. GIBSON ON MAY
 24 AND THAT SHORTLY BEFORE THE END OF THE SHIFT MR. GIBSON HAD
 APPROACHED HIM AND TOLD HIM HE WAS "NOT TO SPEAK WITH ANY OF THE
 EMPLOYEES ABOUT THE UNION" (TR. 132);  THAT WHEN HE, BEASLEY, HAD
 QUESTIONED SUCH LIMITATION, MR. GIBSON SAID, "DO YOU WANT THAT IN
 WRITING?" AND WHEN HE, BEASLEY, SAID HE DID WANT IT IN WRITING, MR.
 GIBSON HAD RESPONDED "YOU'VE GOT IT, BUDDY, YOU GOT IT." (TR. 132), AND
 WALKED AWAY.  ON MAY 26, WHEN MR. BEASLEY WAS CALLED TO MR. SHARP'S
 OFFICE, MR. GIBSON WAS PRESENT WHEN MR. SHARP TOLD MR. BEASLEY THAT HE
 WASN'T SUPPOSED TO DISCUSS THE UNION WITH THE EMPLOYEES AND WASN'T TO
 POST MATERIAL ON THE BULLETIN BOARD AND MR. GIBSON SAID TO MR. SHARP "IF
 I WERE YOU, I'D PUT THAT IN WRITING" (TR. 133).  MR. BEASLEY TOLD MR.
 SHARP THAT IF HE WAS BEING COUNSELED HE WANTED MR. GIBSON TO LEAVE.
 AFTER MR. GIBSON HAD LEFT, MR. SHARP REPEATED HIS STATEMENT AND MR.
 SHARP DID CONFIRM HIS STATEMENT IN A "NOTE FOR THE RECORD" (G.C. EXH.
 15).
 
    9.  DESPITE RESPONDENT'S DISSEMINATION OF THE UNION STEWARD'S LIST ON
 JANUARY 24, 1979 (G.C. EXH. 20), MR. GIBSON ADMITTED THAT ON MAY 2,
 1979, HE HAD REFUSED TO RECOGNIZE MR. BEASLEY AS A UNION STEWARD BECAUSE
 "I HAD NOTHING TO STATE THAT HE WAS IN FACT THE STEWARD" AND THAT HE HAD
 TOLD MR. BEASLEY "I NEEDED CONFIRMATION." (TR. 40).  A WEEK OR TWO
 LATER, MR. GIBSON ANNOUNCED AT A MEETING OF ALL EMPLOYEES THAT MR.
 BEASLEY WAS THE SHOP STEWARD.
 
    10.  RESPONDENT USES BOTH ELECTRIC AND GASOLINE FORKLIFTS.  ON APRIL
 24, 1979, MR. BEASLEY SIGNED OUT A GASOLINE FORKLIFT WHICH HE LATER
 LOANED TO ANOTHER EMPLOYEE, ADAMS.  THE MOTOR POOL ADVISED MR. GIBSON
 THAT THE FORKLIFT HAD NOT BEEN FUELED AND ON APRIL 25, 1979, MR. GIBSON
 GAVE MR. BEASLEY AN ORAL ADMONISHMENT FOR FAILING TO REFUEL HIS FORKLIFT
 (G.C. EXH.  11).  CONTRARY TO THE ASSERTION OF THE GENERAL COUNSEL, THE
 RECORD SHOWS THAT RESPONSIBILITY FOR REFUELING A FORKLIFT RESTS WITH THE
 PERSON WHO SIGNED FOR THE FORKLIFT.  WERE IT OTHERWISE, ACCOUNTABILITY
 FOR CHARGED OUT EQUIPMENT WOULD BE WHOLLY LACKING.  WHETHER MR. ADAMS
 SHARED RESPONSIBILITY FOR REFUELING A FORKLIFT HE WAS USING, MR. BEASLEY
 WAS NOT RELIEVED OF HIS RESPONSIBILITY FOR THE FORKLIFT SO LONG AS IT
 REMAINED CHARGED TO HIM.  NEVERTHELESS, THE RECORD SHOWS NO OTHER
 INSTANCE OF ANY OTHER EMPLOYEE HAVING BEEN DISCIPLINED BECAUSE HE HAD
 NOT REFUELED A FORKLIFT ALTHOUGH THE RECORD SHOWS THAT ON THE SAME DAY,
 APRIL 24, MR. BRENT HAYES HAD NOT REFUELED HIS FORKLIFT AND WAS NOT
 DISCIPLINED, AND THE RECORD FURTHER SHOWED OTHER INSTANCES OF THE
 FAILURE TO REFUEL A FORKLIFT, FOR WHICH NO DISCIPLINE WAS IMPOSED.
 
    11.  MR. MILUS TESTIFIED THAT ON MAY 2, 1979, MR. BEASLEY WAS
 ASSIGNED TO WORK WITH MR. BRENT PAINTER ON A PALLET TO WHICH HE, MILUS,
 HAD INITIALLY BEEN ASSIGNED.  THE RECORD DOES NOT SHOW THAT ANY WORK HAD
 BEEN DONE ON "BUILDING" THE PALLET WHEN MR. BEASLEY WAS ASSIGNED TO WORK
 WITH PAINTER WHICH MR. GIBSON FIXED AS 12:30 OR 1:00 A.M.  MR. BEASLEY
 AND MR.  PAINTER, BY THEIR TESTIMONY, WORKED ON THE PALLET FROM THE TIME
 THEY RECEIVED THEIR WORK ASSIGNMENTS;  HOWEVER, DURING THE SHIFT,
 CERTAIN EMPLOYEES WERE CALLED TO THE OFFICE, ONE BY ONE, AND EACH WAS
 GIVEN A SICK LEAVE ABUSE LETTER.  THESE EMPLOYEES CAME TO MR. BEASLEY
 ABOUT THE LETTERS AND MR.  BEASLEY TOLD THEM HE WOULD TALK TO MR.
 GIBSON.  FOLLOWING THE LUNCH BREAK AT 4:00 A.M., A SAVINGS BOND FILM WAS
 SHOWN, A DISCUSSION OF THE PROCEDURE TO SIGN UP FOR BOND DEDUCTIONS
 FOLLOWED AND THEN MR. GIBSON OPENED THE MEETING FOR FURTHER QUESTIONS,
 AT WHICH TIME AN EMPLOYEE ASKED MR.  GIBSON ABOUT THE SICK LEAVE ABUSE
 LETTERS AND MR. BEASLEY ASKED MR. GIBSON IF THE EMPLOYEES HAD BEEN
 ADVISED OF THEIR RIGHT TO REPRESENTATION AND OF THEIR RIGHT TO APPEAL.
 MR. GIBSON TOLD MR.  BEASLEY HE DID NOT KNOW BUT WOULD FIND OUT AND GET
 BACK TO HIM LATER.  TWENTY TO THIRTY MINUTES LATER, MR. BEASLEY
 TESTIFIED THAT MR. GIBSON DID RETURN AND INFORMED HIM THAT IF THESE
 PEOPLE HAD A PROBLEM THEY SHOULD CONTACT THEIR UNION STEWARD, AT WHICH
 TIME BEASLEY SAID HE TOLD MR. GIBSON HE WAS THE UNION STEWARD AND THAT
 MR. GIBSON REPLIED "THAT I COULD GO FLY A KITE" (TR. 118).  AT ABOUT
 7:00 A.M. MR. GIBSON CALLED MR. BEASLEY TO THE OFFICE AND GAVE HIM AN
 ADMONISHMENT FOR TAKING IN EXCESS OF SIX HOURS TO COMPLETE ONE PALLET,
 WHICH MR. GIBSON CONFIRMED IN WRITING BY A DOCUMENT ENTITLED
 "SUPPLEMENTAL SHEET TO AF 971".  (G.C. EXH. 12).  MR. GIBSON ADMITTED
 THAT THE LUNCH BREAK-- BOND MOVIE-- MEETING-- HAD NOT ENDED UNTIL 5:00
 A.M. OR 5:15 A.M., I.E., LUNCH, ETC., LASTED 1 HOUR TO 1 1/4 HOUR.
 
    NOT ONLY WAS MR. GIBSON'S ARITHMETIC FAULTY, BASED ON HIS OWN
 TESTIMONY AS TO WHEN MR. BEASLEY WAS ASSIGNED TO THE PALLET (12:30 OR
 1:00 A.M.) THE DURATION OF THE BREAK (4:00 A.M. TO 5:00 OR 5:15 A.M.)
 AND THE TIME HE CALLED MR. BEASLEY TO HIS OFFICE;  BUT MR.  BEASLEY,
 DESPITE MR. GIBSON'S REFUSAL TO RECOGNIZE HIS STATUS AS A STEWARD, SPENT
 SOME TIME WITH EMPLOYEES WHO HAD RECEIVED SICK LEAVE ABUSE LETTERS AND
 WITH MR. GIBSON IN AN EFFORT, ALBEIT FUTILE, TO DISCUSS THE SICK LEAVE
 ABUSE LETTERS.  OBVIOUSLY, IF MR. BEASLEY WERE DESERVING OF AN
 ADMONISHMENT FOR TAKING IN EXCESS OF SIX HOURS TO COMPLETE ONE PALLET
 THEN MR. PAINTER, WHO WAS ASSIGNED TO THE SAME PALLET, WAS EQUALLY
 GUILTY AND SHOULD HAVE BEEN ADMONISHED FOR THE SAME LACK OF
 PRODUCTIVITY;  BUT MR. PAINTER WAS NOT SO TREATED.  MR. PAINTER
 TESTIFIED, QUITE CREDIBLY, THAT HE WAS GIVEN AN ADMONISHMENT;  HOWEVER,
 HE STATED THAT MR. GIBSON TOLD HIM IF HIS WORK IMPROVED IN THE FUTURE
 THE ADMONISHMENT WOULD BE REMOVED FROM HIS RECORD AND THAT TWO OR THREE
 DAYS LATER MR. GIBSON TOLD HIM HE HAD TORN UP THE LETTER OF ADMONISHMENT
 (MR. PAINTER ALSO TESTIFIED THAT HE HAD BEEN SHOWN THE LETTER OF
 ADMONISHMENT BUT DID NOT RECALL WHETHER HE HAD BEEN ASKED TO SIGN IT).
 MR. BRAY TESTIFIED THAT MR. GIBSON HAD TOLD HIM THAT PAINTER AND BEASLEY
 HAD TAKEN SIX HOURS TO COMPLETE A PALLET AND HE WAS GOING TO DISCIPLINE
 THEM;  THAT HE DID NOT WANT TO DISCIPLINE PAINTER BUT HAD NO CHOICE,
 SINCE THEY WERE WORKING TOGETHER;  BUT THAT HE WOULD REMOVE PAINTER'S
 LETTER AT A LATER DATE.  INCREDIBLY, MR. GIBSON DENIED THAT HE GAVE MR.
 PAINTER AN ADMONISHMENT.
 
    THE RECORD DOES, INDEED, SHOW THAT MR. PAINTER HAD STARTED WORK ON
 ANOTHER PALLET AND THAT MR. BEASLEY WAS NOT WITH HIM.  /10/ MR. GIBSON'S
 TESTIMONY THAT AT 7:00 A.M. HE SAW MR. BEASLEY SITTING DOWN WITH HIS
 FEET ON A DESK;  THAT THE PALLET HAD NOT BEEN FINISHED, IN THAT PLASTIC
 HAD NOT BEEN PUT ON IT, IT HAD NOT BEEN NETTED DOWN, AND WAS NOT,
 THEREFORE, READY FOR GROSS WEIGHT, WAS WHOLLY CREDIBLE.  NEVERTHELESS,
 MR. GIBSON DID NOT ADMONISH MR.  BEASLEY FOR ANY OF THESE REASONS.
 MOREOVER, THE RECORD FURTHER SHOWS THAT THE WORK OF PUTTING PLASTIC ON
 PALLETS AND NETTING THEM DOWN IS ASSIGNED TO LOWER RATED EMPLOYEES;
 THAT A LOT OF PEOPLE WERE SITTING AROUND THAT NIGHT (TR. 205);  AND THAT
 MR. MILUS TESTIFIED THAT HE COMPLETED ONLY ONE PALLET THE SAME NIGHT AND
 WAS NOT DISCIPLINED.
 
    12.  ON MAY 6, 1979, MR. BEASLEY WAS PROMOTED FROM WG-5 TO WG-7.
 
    13.  ON MAY 9, 1979, BEFORE THE COMMENCEMENT OF HIS SHIFT, MR.
 BEASLEY CALLED AND ADVISED MR. IVY GARNER, A SUPERVISOR /11/ ON THE
 SWING SHIFT (G.C. EXH. 8), THAT HE WOULD BE OUT ON SICK LEAVE THAT
 NIGHT.  RESPONDENT CONTENDS THAT MR. BEASLEY FAILED TO COMPLY WITH
 APPLICABLE REGULATIONS (SEE, G.C. EXH. 2, ARTS. III, XXIII;  AFR 40-630;
  AFLC SUPP. 1, G.C. EXH. 5;  G.C. EXH. 6, LEAVE ADMINISTRATION), WHICH,
 IT IS ASSERTED, PROVIDE THAT SUCH REQUESTS BE MADE TO THE EMPLOYEE'S
 SUPERVISOR.  INASMUCH AS MR. GIBSON ADMITTED KNOWLEDGE THAT MR.  BEASLEY
 WOULD NOT BE IN AND HAD REQUESTED THAT HE BE PUT ON SICK LEAVE, WHICH HE
 ATTRIBUTED TO MR.  MILUS, IT IS UNNECESSARY TO RESOLVE THE DISPUTE AS TO
 WHETHER MR. GARNER, WHO DID NOT TESTIFY, LEFT A WRITTEN NOTE, AS MR.
 BRAY TESTIFIED, WHICH MESSRS. SHARP AND GIBSON DENIED HAVING SEEN.
 ASSUMING, BUT WITHOUT DECIDING, THAT MESSRS. SHARP AND GIBSON DID NOT
 SEE A NOTE, I FIND, AS MR. BRAY ALSO TESTIFIED, THAT MR. GARNER TOLD HIM
 THAT BEASLEY HAD CALLED IN AND THAT HE HAD SO INFORMED MR.  SHARP WHO,
 IN TURN, TOLD MR. GIBSON AND THAT MR. GIBSON TOLD MR. SHARP THAT IF
 BEASLEY DID NOT CALL IN WITHIN THE NEXT TWO HOURS TO MARK HIM AWOL.  NOT
 ONLY DID I FIND MR. BRAY'S TESTIMONY IN THIS REGARD WHOLLY CREDIBLE;
 BUT THE INTENTION TO CARRY MR. BEASLEY AWOL UNLESS HE PERSONALLY CALLED
 MR. SHARP BOTH EXPLAINS AND IS CONFIRMED BY THE TESTIMONY OF MESSRS.
 HAYES AND BEASLEY.  THUS, MR. HAYES TESTIFIED THAT WORD WAS GOING AROUND
 THAT MR. BEASLEY HAD NOT CALLED IN AND HE CALLED MR. BEASLEY TO WARN
 HIM;  MR. BEASLEY TESTIFIED THAT THE EMPLOYEE, HE SAID MR. MILUS CALLED
 RATHER THAN HAYES (TR. 120), TOLD HIM "HE HAD HEARD THAT THEY WERE CARRY
 ME AWOL THAT NIGHT FOR NOT CALLING IN" (TR. 120) AND THAT HE IMMEDIATELY
 HUNG UP AND CALLED, SPEAKING FIRST TO MR. GIBSON AND EVENTUALLY TO MR.
 SHARP.  MR. BEASLEY PLACED THE TIME OF HIS CALL TO MR. GIBSON AT 2:30
 A.M.  (TR. 121).
 
    ON MAY 12, 1979, MR. SHARP ISSUED AN ORAL ADMONISHMENT TO MR.
 BEASLEY "FOR NOT REPORTING YOUR ABSENCE ON MAY 9, 1979, WITHIN (2) TWO
 HOURS OF THE BEGINNING OF YOUR WORK SHIFT ACCORDING TO ESTABLISHED
 PROCEDURES.  IT WAS 03:30 WHEN YOU DID CALL." (G.C. EXH.  14).  FROM ALL
 THE TESTIMONY, I CREDIT MR. BEASLEY'S TESTIMONY THAT HE CALLED MR.
 GIBSON AT 2:30 A.M.  /12/
 
    14.  ON MAY 23, 1979, THE GRAVEYARD SHIFT PRODUCED A HIGH VOLUME OF
 WORK AND MR. BRAY RECOMMENDED THAT ALL EMPLOYEES INVOLVED, INCLUDING MR.
 BEASLEY, RECEIVE A LETTER OF COMMENDATION.  LETTERS OF COMMENDATION WERE
 SUBSEQUENTLY ISSUED TO ALL OF THE EMPLOYEES CONCERNED EXCEPT MR.
 BEASLEY.  WHEN MR. BRAY ASKED MR. GIBSON ABOUT BEASLEY'S LETTER MR. BRAY
 TESTIFIED THAT MR. GIBSON:
 
    " . . . TOLD ME TO FORGET ABOUT IT, TO IGNORE IT.
 
    "Q.  DID HE EXPLAIN WHY?
 
    "A.  YES, HE SAID HE DIDN'T WANT BEASLEY TO HAVE A LETTER, IF AT ALL
 POSSIBLE." (TR. 227).
 
    I SPECIFICALLY REJECT MR. GIBSON'S TESTIMONY THAT HE REFUSED TO GIVE
 MR. BEASLEY A LETTER OF COMMENDATION BECAUSE MR. BRAY INFORMED HIM THAT
 MR. BEASLEY DIDN'T CONTRIBUTE AS MUCH AS OTHERS (TR. 30) AS WHOLLY
 UNSUPPORTED AND THOROUGHLY CONTRADICTED BY THE TESTIMONY OF MR. BRAY
 WHICH I CREDIT IN THIS REGARD.
 
    15.  ON JUNE 5, 1979, NEAR THE END OF THE SHIFT, MR. BEASLEY REFUSED
 TO CLEAN UP HIS WORK AREA AND EMPTY THE TRASH CANS ASSERTING THAT SUCH
 WORK WAS NOT IN HIS JOB DESCRIPTION.  MR. BEASLEY'S TESTIMONY THAT NEW
 JOB DESCRIPTIONS WERE ISSUED ON JUNE 3, 1979, IS UNSUPPORTED;  MR.
 DECKER CREDIBLY TESTIFIED THAT HE WAS NOT AWARE OF ANY CHANGE IN THE JOB
 DESCRIPTION (TR. 343);  AND, ACCORDINGLY, I REJECT MR. BEASLEY'S
 TESTIMONY THAT NEW JOB DESCRIPTIONS HAD BEEN ISSUED AND/OR THAT ANY
 EMPLOYEE HAD COME TO HIM ABOUT THE JOB DESCRIPTION.  I FURTHER REJECT
 MR. BEASLEY'S TESTIMONY THAT HE WAS PERFORMING SUCH DUTIES ON JUNE 5,
 1979.  RATHER, I CREDIT MR. GIBSON'S TESTIMONY, FULLY SUPPORTED BY THE
 TESTIMONY OF MR. DECKER, AS TO THIS OCCURRENCE AND FIND, AS MR. GIBSON
 TESTIFIED, THAT THE FOLLOWING OCCURRED.
 
    . . . I (GIBSON) HAD INSTRUCTED ALL THE EMPLOYEES TO START CLEANING
 UP;  AT THE TIME I WAS
 
    WALKING AROUND THE AREA, I SEEN THE CLEANUP WAS BEING DONE, AND I
 NOTICED THAT MR. BEASLEY WAS
 
    STANDING AGAINST ONE OF THE TABLES AND READING A PAPER, AND . .  . I
 TOLD HIM TO HELP EVERYONE
 
    CLEAN UP, SWEEP THE FLOOR, EMPTY SOME TRAYS AND EMPTY THE TRASH CANS.
 
    "AFTER THAT I WALKED OFF AND WHEN I CAME BACK ABOUT FIVE OR TEN
 MINUTES LATER, MR. BEASLEY
 
    WAS STILL STANDING THERE READING A NEWSPAPER.
 
    "AND I TOLD HIM AGAIN TO START CLEANING UP, HELP EVERYONE CLEAN UP,
 AND HE SAYS, 'I WON'T,
 
    I WILL NOT HELP THEM BECAUSE IT'S NOT IN MY JOB DESCRIPTION.'
 
    "I INFORMED HIM THAT IT WAS ONE OF HIS DUTIES TO MAINTAIN HIS AREA.
 AND HE REFUSED TO DO
 
    IT, AND AT THAT TIME HE TOLD ME HE'D LIKE TO SPEAK TO MR.  DECKER,
 AND I SAID 'OKAY'.
 
    "I WENT INTO THE OFFICE AND INFORMED MR. DECKER OF WHAT HAD HAPPENED,
 AND HE DISCUSSED IT
 
    WITH MR. BEASLEY." (TR. 79-80).
 
    MR. DECKER TESTIFIED, IN PART, THAT:
 
    "A.  I ASKED HIM (BEASLEY) TO EXPLAIN THE MAINTENANCE AND
 SPECIFICALLY WHAT GIBSON HAD
 
    ASKED HIM TO DO.  AND HE TOLD ME THAT GIBSON HAD ASKED HIM TO PICK UP
 THE PAPER CUPS, COKE
 
    CANS AND EMPTY THE TRASH IN HIS WORK AREA.
 
    "Q.  AND DID HE SAY ANYTHING AS TO WHETHER HE WAS GOING TO OR NOT
 GOING TO DO THAT?
 
    "A.  HE TOLD ME THAT HE WASN'T GOING TO DO IT, THAT IT WAS NOT IN HIS
 JOB DESCRIPTION AND
 
    ASKED ME TO REVIEW HIS JOB DESCRIPTION.
 
    "Q.  ALL RIGHT.  DID YOU DO SO, SIR?
 
    "A.  YES, I DID.  THE SPECIFIC REQUIREMENT WASN'T SPELLED OUT IN HIS
 JOB DESCRIPTION, THAT
 
    HE WOULD PICK UP PAPER CUPS OR EMPTY THE TRASH.
 
    Q.  ALL RIGHT.  WHAT DID YOU ADVISE MR. BEASLEY?
 
    "A.  I ADVISED MR. BEASLEY THAT, BECAUSE IT WASN'T LISTED IN HIS JOB
 DESCRIPTION, I WOULD
 
    HAVE TO FURTHER CHECK IT OUT, GET BACK WITH HIM CONCERNING THE
 REQUIREMENT TO CLEAN UP IN HIS
 
    WORK AREA.  AND THAT, IN THE MEANTIME, THAT HE NOT DISOBEY HIS
 SUPERVISOR'S INSTRUCTIONS, BUT
 
    COMPLAIN ABOUT THE RIGHT OR WRONG AFTER THE ACCOMPLISHMENT OF THE
 DUTIES.
 
    "Q.  IN OTHER WORDS, DO THE JOB AND GRIEVE IT LATER?
 
    "A.  RIGHT." (TR. 329-330).
 
    AS THE SHIFT WAS THEN ENDING, MR. BEASLEY DID NOT RETURN TO HIS WORK
 AREA;  HOWEVER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT MR.
 BEASLEY ON ANY WORK DAY THEREAFTER FAILED OR REFUSED TO PERFORM SUCH
 DUTIES.  THE RECORD DOES SHOW THAT MR. BEASLEY HAD, AT LEAST, EMPTIED
 TRASH CANS PRIOR TO JUNE 5, 1979.
 
    ON JUNE 16, 1979, MR. BEASLEY WAS GIVEN A LETTER OF TERMINATION (G.C.
 EXH. 9, ATTACHMENT 1) WHICH STATED THAT THE ACTION WAS BASED ON THE
 FOLLOWING:
 
    A) VETERAN'S READJUSTMENT APPOINTMENT PLAN TRAINING AGREEMENT;
 
    B) FAILURE TO REFUEL A FORKLIFT ON APRIL 24, 1979;  MORE THAN SIX
 HOURS TO COMPLETE ONE PALLET ON MAY 3, 1979;  COUNSELLING ON MAY 26,
 1979, FOR SPENDING DUTY TIME TO CONDUCT NON-OFFICIAL BUSINESS;
 INSUBORDINATE AND INSOLENT BEHAVIOR BY FAILING TO COMPLY WITH PROPER
 ORDERS AND INSTRUCTIONS;  ADMONISHMENT ON MAY 12, 1979, FOR NOT
 REPORTING ABSENCE WITHIN TWO HOURS OF THE BEGINNING OF THE SHIFT;  AND
 ON JUNE 5, 1979, REFUSED TO CARRY OUT A PROPER WORK ASSIGNMENT TO HELP
 CLEAN UP WORK AREA.
 
                                CONCLUSIONS
 
    I.  DISPARAGING STATEMENTS.
 
    THE STATEMENTS, WHICH I HAVE FOUND THAT SUPERVISOR GIBSON MADE, WERE,
 IN SUBSTANCE:
 
    - THE UNION ISN'T WORTH THE PAPER IT IS PRINTED ON;  $11.00 A MONTH
 ISN'T WORTH THE MONEY INVESTED IN IT.
 
    - DO YOU KNOW YOUR UNION DUES ARE GOING UP?
 
    - THE UNION HAS TO REPRESENT YOU WHETHER YOU ARE A MEMBER OR NOT,
 DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR MONEY.
 
    SECTION 2 OF THE STATUTE PROVIDES, IN PART, THAT:
 
    "EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM JOIN, OR ASSIST ANY LABOR
 ORGANIZATION, OR TO
 
    REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL, AND EACH
 
    EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. . . .  "
 (5 U.S.C. 7102)
 
    SECTION 16(A)(1) PROVIDES AS FOLLOWS:
 
    "(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    "(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;" (5 U.S.C. 7116(A)(1))
 
    EXECUTIVE ORDER 11491 CONTAINED NO "FREE SPEECH" PROVISION.  THE
 STATUTE DOES;  BUT, IS UNLIKE SECTION 8(C) OF THE NATIONAL LABOR
 RELATIONS ACT, 29 U.S.C. 158(C).  SENATE BILL 2640, SEC. 7216, AS
 REPORTED, LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978,
 SUBCOMMITTEE ON POSTAL PERSONNEL AND MODERNIZATION OF THE COMMITTEE ON
 POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, COMMITTEE PRINT
 NO. 96-7, 96TH CONG., 1ST SESS.  (HEREINAFTER "LEG. HISTORY"), 494, 526,
 HAD CONTAINED NO "FREE SPEECH" PROVISION;  BUT ON AUGUST 24, 1978,
 SENATOR HATCH PROPOSED AN AMENDMENT WHICH, AS AMENDED, WAS ADOPTED BY
 THE SENATE AS SEC. 7216(G) OF S. 2640.  THE FOLLOWING COLLOQUY ON THE
 FLOOR OF THE SENATE IS MOST INSTRUCTIVE:
 
    "MR. JAVITS.  MOVING NOW TO . . . THE SO CALLED FREE SPEECH
 AMENDMENT, THAT TROUBLES ME FOR
 
    THIS REASON, AND I SHALL COMMUNICATE MY CONCERN TO THE SENATOR AND HE
 WILL GIVE ME HIS VIEWS
 
    AND HIS EXPLANATION.  IT IS A FACT THAT WE CONSIDER THE FEDERAL
 GOVERNMENT IN THIS BILL AS AN
 
    EMPLOYER, BUT IT IS ALSO THE FEDERAL GOVERNMENT.
 
    "MR. HATCH.  THAT IS TRUE.
 
    "MR. JAVITS.  AND YOU CANNOT STRIKE AGAINST THE FEDERAL GOVERNMENT,
 SO, IF YOU WORK FOR THE
 
    FEDERAL GOVERNMENT, YOU GIVE UP SOMETHING . . .
 
    "THE UNITED STATES HAS LAWS FAVORING UNION ORGANIZATION, OR AT LEAST
 MAKING IT POSSIBLE
 
    UNDER THE PROPRIETY OF LAW.
 
    "IS IT NOT A FACT THAT, UNDER THIS FREE SPEECH AMENDMENT, AN
 INDIVIDUAL MANAGER, SPEAKING
 
    PERSONALLY, COULD SAY THAT HE DOES NOT LIKE UNIONS AND HE DOES NOT
 THINK THEY ARE A VERY GOOD
 
    IDEA AND HE DOES NOT THINK THEY WILL DO ANYBODY WHO JOINS THEM ANY
 GOOD.  THAT WOULD STILL BE
 
    WITHIN THE PURVIEW OF THIS AMENDMENT, WOULD IT NOT?
 
    "MR. HATCH.  THAT IS CORRECT.
 
    "MR. JAVITS.  BECAUSE IT DOES NOT INCLUDE A THREAT OF REPRISAL OR
 FORCE OR PROMISE OF
 
    BENEFIT.
 
    "MR. HATCH.  THAT IS RIGHT.  IN OTHER WORDS, HE MAY EXPRESS HIS
 PERSONAL GOOD FAITH
 
    OPINION, BUT HE CANNOT EXPRESS A THREAT OF REPRISAL OR FORCE OR
 PROMISE OF BENEFIT WHICH IS
 
    THE PRESENT LAW.  BUT HE MAY TELL WHAT HE PERSONALLY FEELS WITHOUT
 FEAR OF AN UNFAIR LABOR
 
    PRACTICE CHARGE.
 
    (SENATOR JAVITS DISCUSSED A LACK OF CONSISTENCY WITH SECTION
 7216(A)(1) AND (2) AND, ULTIMATELY PROPOSED THE FOLLOWING AMENDMENT TO
 SENATOR HATCH'S AMENDMENT, WHICH WAS AGREED TO.)
 
    "MR. JAVITS.  WOULD THE SENATOR CONSIDER THAT' IN VIEW OF HIS INTENT,
 ADDING TO THE END OF
 
    THE AMENDMENT THE FOLLOWING:
 
    'SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE
 OF BENEFIT AND IS NOT
 
    MADE UNDER COERCIVE CONDITIONS.'
 
    "MR. HATCH.  YES, THAT IS FINE.
 
    "MR. JAVITS.  ALL RIGHT.
 
    "MR. HATCH.  I WOULD ACCEPT THAT LANGUAGE.
 
    "MR. PRESIDENT, I MOVE THAT MY AMENDMENT BE MODIFIED TO ACCEPT THAT
 PARTICULAR LANGUAGE.
 
   .          .          .          .
 
 
    "THE PRESIDING OFFICER.  THE SENATOR HAS THE RIGHT.
 
    "THE AMENDMENT IS SO MODIFIED." (CONG. RECORD, AUG. 24, 1978, LEG.
 HISTORY
 
    PP. 1025-1028).  (SENATE HATCH'S AMENDMENT WAS ADOPTED (1035) AND S.
 2640, AS AMENDED, WAS
 
    PASSED (1038-1039).
 
    SECTION 7216(G) OF S. 2640, AS PASSED BY THE SENATE, PROVIDED AS
 FOLLOWS:
 
    "(G) THE EXPRESSION OF ANY PERSONAL VIEWS, ARGUMENT, OPINION, OR THE
 MAKING OF ANY
 
    STATEMENT SHALL NOT (I) CONSTITUTE OR BE EVIDENCE OF ANY UNFAIR LABOR
 PRACTICE UNDER ANY OF
 
    THE PROVISIONS OF THIS CHAPTER OR (II) CONSTITUTE GROUNDS FOR, OR
 EVIDENCE JUSTIFYING, SETTING
 
    ASIDE THE RESULTS OF ANY ELECTION CONDUCTED UNDER ANY PROVISION OF
 THIS CHAPTER, IF SUCH
 
    EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF
 BENEFIT OR UNDUE COERCIVE
 
    CONDITIONS" (THE WORDS "AND IS NOT MADE UNDER", AS SUGGESTED BY
 SENATOR JAVITS AND AGREED TO
 
    BY SENATOR HATCH AND, PRESUMABLY, WERE ADDED, NEVERTHELESS,
 DISAPPEARED IN THE PRINTED VERSION
 
    OF S. 2640 AND THE CONCLUDING PHRASE BECAME "OR UNDUE COERCIVE
 CONDITIONS".) (LEG. HISTORY
 
    PP. 585-586).
 
    THE HOUSE BILL CONTAINED NO COMPARABLE PROVISION AND THE LANGUAGE
 AGREED UPON IN CONFERENCE, WHICH BECAME SUBSECTION (E) IN THE STATUTE,
 WAS, AND IS, DIFFERENT.  THUS SEC. 16(E) PROVIDES AS FOLLOWS:
 
    "(E) THE EXPRESSION OF ANY PERSONAL VIEW ARGUMENT, OPINION OR THE
 MAKING OF ANY STATEMENT
 
    WHICH--
 
    "(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND
 ENCOURAGES EMPLOYEES TO
 
    EXERCISE THEIR RIGHT TO VOTE IN SUCH ELECTION,
 
    "(2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
 STATEMENT MADE BY ANY
 
    PERSON, OR
 
    "(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
 LABOR-MANAGEMENT RELATIONS
 
    AND REPRESENTATION.
 
    SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
 OR PROMISE OF BENEFIT
 
    OR WAS NOT MADE UNDER COERCIVE CONDITIONS (A) CONSTITUTE AN UNFAIR
 LABOR PRACTICE UNDER ANY
 
    PROVISION OF THIS CHAPTER, OR (B) CONSTITUTE GROUNDS FOR THE SETTING
 ASIDE OF ANY ELECTION
 
    CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER."
 
    THE CONFERENCE REPORT (NO. 95-1717, 95TH CONG., 2ND SESS.) STATES AS
 FOLLOWS:
 
    "C.  EXPRESSION OF PERSONAL VIEWS
 
    "SENATE SECTION 7216(G) STATES THAT THE EXPRESSION OF . . .  ANY
 PERSONAL VIEWS, ARGUMENT OR
 
    OPINION, OR THE MAKING OF ANY STATEMENT SHALL NOT CONSTITUTE AN
 UNFAIR LABOR PRACTICE OR
 
    INVALIDATE AN ELECTION IF THE EXPRESSION CONTAINS NO THREAT OF
 REPRISAL OR FORCE OR PROMISE OF
 
    BENEFIT OR UNDUE COERCIVE CONDITIONS.
 
    "THE HOUSE BILL CONTAINS NO COMPARABLE PROVISIONS.
 
    "THE HOUSE RECEDES TO THE SENATE WITH AN AMENDMENT SPECIFYING IN
 GREATER DETAIL THE TYPES
 
    OF STATEMENTS THAT MAY BE MADE UNDER THIS SECTION.  THE PROVISION
 AUTHORIZES STATEMENTS
 
    ENCOURAGING EMPLOYEES TO VOTE IN ELECTIONS, TO CORRECT THE RECORD
 WHERE FALSE OR MISLEADING
 
    STATEMENTS ARE MADE, OR TO CONVEY THE GOVERNMENT'S VIEWS ON
 LABOR-MANAGEMENT RELATIONS.  THE
 
    WORDING OF THE CONFERENCE REPORT IS INTENDED TO REFLECT THE CURRENT
 POLICY OF THE CIVIL
 
    SERVICE COMMISSION WHEN ADVISING AGENCIES ON WHAT STATEMENTS THEY MAY
 MAKE DURING AN ELECTION,
 
    AND TO CODIFY CASE LAW UNDER EXECUTIVE ORDER 11491, AS AMENDED, ON
 THE USE OF STATEMENTS IN
 
    ANY UNFAIR LABOR PRACTICE PROCEEDING." (LEG. HISTORY, P. 824).
 
    BECAUSE OF THE VERY DIFFERENT SCOPE OF SECTION 8(C) OF THE NLRA, /13/
 DECISIONS IN THE PRIVATE SECTOR ARE OF LITTLE OR NO VALUE IN DETERMINING
 THE PERMISSIBLE SCOPE OF EXPRESSION OF OPINION UNDER SECTION 16(E) OF
 THE STATUTE.  SENATOR JAVITS, ANTICIPATING ALMOST PRECISELY THE
 SUBSTANCE OF THE COMMENTS MADE BY MR. GIBSON, ESSENTIALLY THAT THE UNION
 WAS WORTHLESS, ELICITED THE AGREEMENT FROM SENATOR HATCH, WHO HAD
 PROPOSED THE "FREE SPEECH" AMENDMENT IN THE SENATE, THAT SUCH
 EXPRESSIONS OF PERSONAL OPINION WOULD HAVE BEEN WITHIN THE PURVIEW OF
 SENATOR HATCH'S AMENDMENT.  THE MODIFICATION SUGGESTED BY SENATOR
 JAVITS, AND ACCEPTED BY SENATOR HATCH, ADDED THE FURTHER LIMITATION,
 NAMELY, THAT THE STATEMENT MUST NOT HAVE BEEN MADE UNDER COERCIVE
 CONDITIONS;  BUT, CLEARLY, IT WAS NOT INTENDED UNDER SEC. 7216(G) OF S.
 2640, AS PASSED BY THE SENATE, THAT A STATEMENT OF A PERSONAL OPINION
 THAT A UNION WAS WORTHLESS WOULD CONSTITUTE OR BE EVIDENCE OF AN UNFAIR
 LABOR PRACTICE "IF SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR
 FORCE OR PROMISE OF BENEFIT OR UNDUE COERCIVE CONDITIONS".
 
    THE LANGUAGE OF SEC. 16(E) IS THE STATUTE, AS ENACTED, CAN BE READ
 AS,
 
    "THE EXPRESSION OF ANY PERSONAL VIEW ARGUMENT, OPINION . . .  SHALL
 NOT, IF THE EXPRESSION
 
    CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS
 NOT MADE UNDER COERCIVE
 
    CONDITIONS, (A) CONSTITUTE AN UNFAIR LABOR PRACTICE . . .
 
                                    OR
 
    " . . . THE MAKING OF ANY STATEMENT WHICH--
 
    "(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION OR ENCOURAGES
 EMPLOYEE TO EXERCISE
 
    THEIR RIGHT TO VOTE IN SUCH ELECTION,
 
    "(2) CORRECT THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
 STATEMENT MADE BY ANY
 
    PERSON, OR
 
    "(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
 LABOR-MANAGEMENT RELATIONS
 
    AND REPRESENTATION.
 
    SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
 OR PROMISE OF BENEFIT
 
    OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A) CONSTITUTE AN UNFAIR
 LABOR PRACTICE . . . "
 
    THE WORD "WHICH" IN SEC. 16(E) COULD BE READ AS MODIFYING "PERSONAL
 VIEW", "ARGUMENT", "OPINION", SO THAT, FOR EXAMPLE:
 
    "THE EXPRESSION OF ANY PERSONAL VIEW . . . WHICH
 
    "(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION . . .
 
    "(2) CORRECTS THE RECORD . . .
 
    "(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY . . .
 
    SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OR REPRISAL OR FORCE
 OR PROMISE OF BENEFIT
 
    OR WAS NOT MADE UNDER COERCIVE CONDITIONS (A) CONSTITUTE AN UNFAIR
 LABOR PRACTICE . . . "
 
    HOWEVER, I CONCLUDE THAT THE FORMER "READING" REFLECTS THE INTENT AND
 PURPOSE OF CONGRESS, I.E., THAT SEC. 16(E) ADDRESSES TWO SEPARATE AND
 DISTINCT SITUATIONS.  FIRST, THE EXPRESSION OF ANY PERSONAL VIEW,
 ARGUMENT OR OPINION, EXCLUDING REPRESENTATIONAL ELECTIONS, WHICH IF THE
 EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OR BENEFIT
 AND IS NOT MADE UNDER COERCIVE CONDITIONS, SHALL NOT CONSTITUTE AN
 UNFAIR LABOR PRACTICE.  SECOND, STATEMENTS, ESPECIALLY BY AGENCY
 MANAGEMENT, IN RELATION TO REPRESENTATIONAL ELECTIONS WHICH ARE
 PROTECTED ONLY IF SUCH STATEMENT (1) PUBLICIZES THE FACT OF AN ELECTION
 AND ENCOURAGES EMPLOYEES TO VOTE, (2) CORRECTS THE RECORD WITH RESPECT
 TO ANY FALSE OR MISLEADING STATEMENT, OR (3) INFORMS EMPLOYEES OF THE
 GOVERNMENT'S POLICY RELATING TO LABOR-MANAGEMENT RELATIONS AND
 REPRESENTATION, AND SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF
 REPRISAL OR FORCE OR PROMISE OR BENEFIT AND IS NOT MADE UNDER COERCIVE
 CONDITIONS CONSTITUTE AN UNFAIR LABOR PRACTICE OR CONSTITUTE GROUNDS FOR
 SETTING ASIDE AN ELECTION.
 
    THIS CONSTRUCTION OF SEC. 16(E) IS COMPELLED BY:  I) THE GENESIS OF
 THE "FREE SPEECH" PROVISION IN THE SENATE BILL, AND THE CLEAR STATEMENT
 IN THE CONFERENCE REPORT THAT, "THE HOUSE RECEDES TO THE SENATE", ALBEIT
 "WITH AN AMENDMENT SPECIFYING IN GREATER DETAIL THE TYPES OF STATEMENTS
 THAT MAY BE MADE UNDER THIS SECTION." THAT THE CONFEREES WERE DEEPLY
 CONCERNED ABOUT THE EFFECT OF "FREE SPEECH" IN THE CONTEXT OF
 REPRESENTATION ELECTIONS IS BEYOND QUESTION.  FROM THE INCEPTION OF
 EXECUTIVE ORDER 11491, IT HAD BEEN ESTABLISHED POLICY THAT AGENCY
 MANAGEMENT MUST MAINTAIN A POSTURE OF NEUTRALITY IN ANY REPRESENTATION
 ELECTION CAMPAIGN.  CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, 1 A/SLMR
 27, N. 17(1970);  ANTILLES CONSOLIDATED SCHOOLS, ROOSEVELT ROADS, CEIBA,
 PUERTO RICO A/SLMR NO. 349, 4 A/SLMR 114 (1974).  OBVIOUSLY, THE
 CONFEREES INTENDED TO INSURE THAT AGENCY MANAGEMENT REMAIN NEUTRAL IN
 ANY REPRESENTATION ELECTION CAMPAIGN, AND, ACCORDINGLY, STATEMENTS IN A
 REPRESENTATIONAL ELECTION CONTEXT WERE NARROWLY LIMITED.  SEE, STATEMENT
 OF CONGRESSMAN FORD, OCTOBER 14, 1978, LEG. HISTORY, P. 996.  ALTHOUGH
 THIS LIMITATION, I.E., "THE MAKING OF ANY STATEMENT WHICH-- (1)
 PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
 EMPLOYEES TO EXERCISE THEIR RIGHT TO VOTE IN SUCH ELECTION, (2) CORRECTS
 THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING STATEMENT MADE BY ANY
 PERSON, OR (3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
 LABOR-MANAGEMENT RELATIONS AND REPRESENTATION", WAS INSERTED IN THE
 MIDDLE OF THE SENATE PROVISION, IT WAS NOT INTENDED TO VITIATE THE
 PROVISIONS OF THE SENATE BILL WITH RESPECT TO THE EXPRESSION OF ANY
 PERSONAL VIEW, ARGUMENT, OR OPINION IN A NON-REPRESENTATIONAL ELECTION
 CONTEXT WHICH, SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF
 REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE
 CONDITIONS, CONSTITUTE AN UNFAIR LABOR PRACTICE.  INDEED, THE INTENT OF
 THE CONFEREES, CONSIST WITH POLICY UNDER THE EXECUTIVE ORDER, WAS TOTAL
 NEUTRALITY OF AGENCY MANAGEMENT IN REPRESENTATION ELECTIONS AND WHETHER
 MADE WITHOUT THREAT OR FORCE OR PROMISE OF BENEFIT OR UNDER COERCIVE
 CONDITION, ANY STATEMENT BREACHING SUCH NEUTRALITY IS IMPERMISSIBLE AND
 EVALUATION OF STATEMENTS BY AGENCY MANAGEMENT IN A REPRESENTATION
 CONTEXT ON THE BASIS OF THREAT, PROMISE OF BENEFIT, ETC., WOULD NOT BE
 FULLY CONSISTENT WITH THE POLICY OF NEUTRALITY.  RETENTION OF SUCH
 PROVISIONS IS, HOWEVER, FULLY CONSISTENT WITH THE STATED INTENT OF THE
 SENATE PROVISION AS TO EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT OR
 OPINION OTHER THAN IN THE CONTEXT OF A REPRESENTATION ELECTION WHEN THE
 NECESSITY FOR NEUTRALITY IS NOT PRESENT.  THEN, OF COURSE, THE
 EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT OR OPINION, WHETHER BY AGENCY
 MANAGEMENT OR BY ANY OTHER PERSON, SHALL NOT CONSTITUTE AN UNFAIR LABOR
 PRACTICE IF SAID EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR
 PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS;  II) THE
 FURTHER STATEMENTS IN THE CONFERENCE REPORT, INTER ALIA, THAT, "THE
 WORDING OF THE CONFERENCE REPORT IS INTENDED TO REFLECT THE CURRENT
 POLICY OF THE CIVIL SERVICE COMMISSION WHEN ADVISING AGENCIES ON WHAT
 STATEMENTS THEY MAY MAKE DURING AN ELECTION, AND TO CODIFY CASE LAW
 UNDER EXECUTIVE ORDER 11491, AS AMENDED, ON THE USE OF STATEMENTS IN ANY
 UNFAIR LABOR PRACTICE PROCEEDING." THE CASE LAW UNDER THE EXECUTIVE
 ORDER IN THIS REGARD HAD TWO BRANCHES:  FIRST, AS NOTED ABOVE, THE
 POLICY THAT IN ANY REPRESENTATION ELECTION CAMPAIGN AGENCY MANAGEMENT
 MUST MAINTAIN A POSTURE OF NEUTRALITY.  SECOND, THAT IN ALL OTHER
 SITUATIONS EXPRESSIONS OF OPINION CONSTITUTED AN UNFAIR LABOR PRACTICE
 ONLY IF THE STATEMENT INTERFERED WITH, RESTRAINED, OR COERCED AN
 EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER.  SEE, FOR
 EXAMPLE SOCIAL SECURITY ADMINISTRATION, WILKES-BARRE OPERATIONS BRANCH,
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, A/SLMR NO. 729, 6 A/SLMR
 549(1976);  MARINE CORPS EXCHANGE 8-2, MARINE CORPS AIR STATION, EL
 TORO, CALIFORNIA, A/SLMR NO. 865, 7 A/SLMR 576(1977);  (III) THE WORDING
 OF SUBSECTION (E) WHEREBY THE PHRASE, ADDED TO THE SENATE VERSION, "OR
 THE MAKING OF ANY STATEMENT" IS LIMITED BY "WHICH-- "(1) PUBLICIZES . .
 . (2) CORRECTS THE RECORD . . . , OR (3) INFORMS EMPLOYEES . . . ."
 WHILE NOT A MODEL OF CLARITY, FOR THE REASONS STATED ABOVE, THE PURPOSE
 AND INTENT OF THIS INSERTION WAS TO INSURE NEUTRALITY OF AGENCY
 MANAGEMENT IN REPRESENTATIONAL ELECTIONS;  IV) EVEN IF THE EXPRESSION OF
 ANY PERSONAL VIEW, ARGUMENT OR OPINION IN AN NON-REPRESENTATION ELECTION
 CONTEXT WERE NOT PROTECTED BY SEC. 16(E) UNLESS SUCH EXPRESSION "(1)
 PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
 EMPLOYEES . . . TO VOTE . . . , (2) CORRECTS THE RECORD WITH RESPECT TO
 ANY FALSE OR MISLEADING STATEMENT . . . , OR (3) INFORM EMPLOYEES OF THE
 GOVERNMENT'S POLICY . . . .", NEVERTHELESS, SUCH EXPRESSION WOULD
 CONSTITUTE AN UNFAIR LABOR PRACTICE ONLY IF IT INTERFERED WITH,
 RESTRAINED, OR COERCED ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF
 ANY RIGHT UNDER THE STATUTE, WHICH IS PRECISELY THE OBJECTIVE OF SEC.
 16(E), NAMELY, THAT THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT,
 OPINION SHALL NOT CONSTITUTE AN UNFAIR LABOR PRACTICE IF THE EXPRESSION
 CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISES OF BENEFIT AND IS
 NOT MADE UNDER COERCIVE CONDITIONS.
 
    WITH REGARD TO MR. GIBSON'S STATEMENT IN THIS CASE, MESSRS. MILUS AND
 MCNEELY, IN FEBRUARY AND ON MAY 24, 1979, RESPECTIVELY, HAD GONE TO MR.
 GIBSON AND MR. GIBSON TOLD MR. MILUS THAT THE UNION WASN'T WORTH THE
 PAPER IT WAS PRINTED ON;  ALSO IT ISN'T WORTH THE MONEY INVESTED IN IT;
 AND HE TOLD MR. MCNEELY THAT THE UNION HAS TO REPRESENT YOU WHETHER YOU
 ARE A MEMBER OR NOT, DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR
 MONEY.  MR. GIBSON'S STATEMENTS WERE NOT MADE UNDER COERCIVE CONDITIONS
 AS EACH EMPLOYEE HAD SOUGHT OUT MR. GIBSON AND ASKED HIS OPINION ABOUT
 THE UNION CF., VETERANS ADMINISTRATION HOSPITAL, SHREVEPORT, LOUISIANA,
 1 FLRA NO. 48(1979);  AND THERE WAS NOT THREAT OF REPRISAL OR FORCE OF
 PROMISE OF BENEFIT.  ACCORDINGLY, MR. GIBSON'S EXPRESSION OF HIS
 PERSONAL VIEW, ARGUMENT, OR OPINION DID NOT, PURSUANT TO SEC. 16(E),
 CONSTITUTE AN UNFAIR LABOR PRACTICE.  /14/ IN LIKE MANNER, ALTHOUGH MR.
 GIBSON SOUGHT OUT MR. BUCKHEISTER, MR.  GIBSON'S QUERY TO MR.
 BUCKHEISTER, DO YOU KNOW YOUR UNION DUES ARE GOING UP, DID NOT, PURSUANT
 TO SEC.  16(E), CONSTITUTE AN UNFAIR LABOR PRACTICE.
 
    WHILE I HAVE CONCLUDED THAT THE EXPRESSIONS BY MR. GIBSON WERE WITHIN
 THE PURVIEW OF SEC. 16(E), AS PROTECTED EXPRESSIONS OF PERSONAL VIEW,
 ARGUMENT OR OPINION AND, IN THE ABSENCE OF ANY THREAT OF REPRISAL OR
 FORCE OR PROMISE OF BENEFIT AND WERE NOT UNDER COERCIVE CONDITIONS, EVEN
 IF SUCH EXPRESSIONS WERE DEEMED NOT WITHIN THE PURVIEW OF SEC. 16(E),
 SINCE SUCH EXPRESSIONS DID NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY
 EMPLOYEE IN THE EXERCISE BY THE EMPLOYEES OF ANY RIGHT UNDER THE
 STATUTE, INCLUDING THE RIGHT, ASSURED BY SEC. 2, TO FORM, JOIN, OR
 ASSIST ANY LABOR ORGANIZATION WITHOUT FEAR OF PENALTY OR REPRISAL, SUCH
 STATEMENTS DID NOT VIOLATE SEC. 16(A)(1) OF THE STATUTE.  AS NOTED
 ABOVE, EMPLOYEES MILUS AND MCNEELY WENT TO MR.  GIBSON;  MR. GIBSON'S
 COMMENTS WERE MADE IN PRIVATE CONVERSATIONS AND NOTHING IN HIS COMMENTS
 INTERFERED WITH, RESTRAINED OR COERCED THE EMPLOYEES IN THE EXERCISE OF
 THEIR RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL TO JOIN OR
 ASSIST A LABOR ORGANIZATION.  ALTHOUGH HE TOLD MR. MILUS THAT THE UNION
 WASN'T WORTH THE PAPER IT WAS PRINTED ON AND THAT $11.00 A MONTH WASN'T
 WORTH THE MONEY INVESTED IN IT, THERE WAS NO THREAT OR PENALTY OR
 REPRISAL.  MR. GIBSON'S STATEMENT TO MR. MCNEELY THAT THE UNION HAD TO
 REPRESENT HIM WHETHER HE WAS A MEMBER OR NOT, WAS, OF COURSE, A CORRECT
 STATEMENT AND HIS FURTHER STATEMENT THAT DUES ARE HIGH AND I HATE TO SEE
 YOU WASTE YOUR MONEY WAS WHOLLY FREE OF ANY THREAT OF PENALTY OR
 REPRISAL.  HAD MR. GIBSON GENERALLY DISSEMINATED SUCH VIEWS, I WOULD
 VIEW HIS COMMENTS DIFFERENTLY, CF. VETERANS ADMINISTRATION HOSPITAL,
 SHREVEPORT, LOUISIANA, 1 FLRA NO. 48(1979);  BUT WHERE, AS HERE,
 EMPLOYEES GO TO A SUPERVISOR AND SEEK HIS OPINION ABOUT THE UNION, A
 RESPONSE, EVEN THOUGH DISPARAGING OF THE UNION, DOES NOT VIOLATE SEC.
 16(A)(1) IF FREE OF THREAT OF PENALTY OR REPRISAL.  FINALLY, ALTHOUGH
 MR. GIBSON INITIATED THE COMMENT TO MR.  BUCKHEISTER WHEREBY HE ASKED IF
 HE, BUCKHEISTER, KNEW HIS UNION DUES WERE GOING UP, HIS COMMENT, WHICH
 WENT NO FURTHER, DID NOT VIOLATE SEC. 16(A)(1).
 
    ACCORDINGLY, THE ALLEGATIONS OF PARAGRAPH 5(A) OF THE COMPLAINT ARE
 HEREBY DISMISSED.
 
            II.  INTERROGATION AND MAINTENANCE OF RULE AGAINST
 
              SOLICITATION OF UNION MEMBERSHIP ON PAID BREAKS
 
    MR. GIBSON QUESTIONED MR. BUCKHEISTER AS TO WHERE HE HAD GOT
 INFORMATION ABOUT JOINING THE UNION AND MR. BUCKHEISTER TOLD HIM THAT HE
 HAD GOT THE INFORMATION FROM HIS UNION STEWARD, JOHN BEASLEY.
 SUBSEQUENTLY, ON MAY 24, MR. GIBSON ASKED MR. MCNEELY IF BEASLEY HAD
 BEEN TRYING TO GET HIM TO JOIN THE UNION AND WHEN MR. MCNEELY ASKED WHY
 HE WANTED TO KNOW, MR. GIBSON RESPONDED THAT "BEASLEY WASN'T SUPPOSED TO
 SAY ANYTHING ABOUT THE UNION AND I WASN'T SUPPOSED TO LISTEN" AND MR.
 GIBSON ASKED MR. MCNEELY TO GIVE A WRITTEN STATEMENT WHICH MR.  GIBSON
 READILY ADMITTED BECAUSE IT "IS AGAINST THE REGULATIONS TO DISCUSS OR
 PARTICIPATE IN IT, OR TRY TO PROCURE MEMBERS WHILE ON THE JOB".  MR.
 BEASLEY TESTIFIED THAT HE HAD SOLICITED UNION MEMBERSHIP ONLY DURING
 BREAKS;  THAT MR. MCNEELY ON MAY 24 HAD ASKED HIM ABOUT JOINING THE
 UNION AND HE HAD TOLD MCNEELY HE WOULD GET HIM AN APPLICATION ON THEIR
 BREAK.  ON MAY 26, 1979, MR. BEASLEY WAS COUNSELED FOR SPENDING DUTY
 TIME TO CONDUCT NON-OFFICIAL BUSINESS, I.E., SOLICITED UNION MEMBERSHIP.
 
    MR. BEASLEY'S TESTIMONY THAT HE SOLICITED UNION MEMBERSHIP ONLY ON
 BREAKS WAS NOT REFUTED;  MR. SHARP'S NOTE FOR THE RECORD STATED THAT HE
 INFORMED MR.  BEASLEY THAT, " . . . HE WAS NOT TO DISCUSS ANY UNION
 MATTER WITH ANY EMPLOYEE WHILE ON DUTY UNLESS AN APPOSITE TIME HAD BEEN
 SCHEDULED VERIFIED WITH ME (SHARP). . . . " (G.C. EXH. 15);  MR. GIBSON
 HAD TOLD MR. BEASLEY ON MAY 24 THAT HE WAS "NOT TO SPEAK WITH ANY OF THE
 EMPLOYEES ABOUT THE UNION";  AND MR. GIBSON, SEEKING MR. MCNEELY'S
 WRITTEN STATEMENT, HAD STATED THAT IT "IS AGAINST THE REGULATIONS . . .
 TO PROCURE MEMBERS WHILE ON THE JOB".  NOT ONLY DOES THE RECORD SHOW
 THAT MR.  BEASLEY SOLICITED UNION MEMBERSHIP DURING BREAKS AND THAT HE
 WAS COUNSELED FOR HAVING DONE SO, BUT THE RECORD FURTHER SHOWS THAT
 RESPONDENT'S UNQUALIFIED POSITION WAS, AND IS, THAT SOLICITATION OF
 UNION MEMBERSHIP DURING ANY PART OF "CLOCK TIME" IS PROHIBITED BY THE
 AGREEMENT OF THE PARTIES, BY REGULATION, AND BY THE STATUTE, INASMUCH AS
 EMPLOYEES IN THE AIR FREIGHT TERMINAL ARE PAID FOR ALL "CLOCK TIME",
 INCLUDING BREAKS.  INDEED, GENERAL COUNSEL, WITH FULL RECOGNITION OF THE
 PROVISIONS OF SEC. 31(B) OF THE STATUTE, INITIALLY SOUGHT TO PROVE THAT
 THE SOLICITATION OF MEMBERSHIP OCCURRED ONLY ON BREAK TIME AND THAT THE
 COUNSELING OF MR. BEASLEY FOR SOLICITING MEMBERSHIP ON DUTY TIME WAS
 IMPROPER BECAUSE THE SOLICITATION HAD BEEN LIMITED TO BREAK TIME.  IT
 BECAME CLEAR THAT RESPONDENT'S POSITION WAS THAT, BECAUSE EMPLOYEES WERE
 PAID FOR ALL BREAK TIME, ALL "CLOCK TIME" WAS DUTY TIME.  GENERAL
 COUNSEL THEN MOVED TO AMEND THE COMPLAINT TO ADD A FURTHER ALLEGATION TO
 PARAGRAPH 5 TO ALLEGE THAT RESPONDENT VIOLATED THE STATUTE BY
 MAINTAINING AN UNLAWFUL RULE PROHIBITING SOLICITATION OF UNION MATTERS
 DURING BREAKS AND LUNCH PERIODS.  GENERAL COUNSEL'S MOTION TO AMEND THE
 COMPLAINT WAS GRANTED;  HOWEVER, A RECESS WAS TAKEN TO ALLOW BOTH
 PARTIES TO PREPARE FOR LITIGATION OF THE ISSUE RAISED BY THE AMENDMENT.
 RESPONDENT OFFERED NO EVIDENCE OR TESTIMONY THAT SOLICITATION OF
 MEMBERSHIP OCCURRED OTHER THAN ON BREAKS AND ASSERTED THAT ALL "CLOCK
 TIME" WAS DUTY TIME AND THAT SOLICITATION OF MEMBERSHIP DURING DUTY TIME
 IS CONTRARY TO THE STATUTE, REGULATIONS AND THE AGREEMENT OF THE
 PARTIES.
 
    SEC. 31 OF THE STATUTE, OFFICIAL TIME, PROVIDES, IN PART, AS FOLLOWS:
 
    "(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE
 INTERNAL BUSINESS OF A LABOR
 
    ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP . . . ) SHALL
 BE PERFORMED DURING THE
 
    TIME THE EMPLOYEE IS IN A NON-DUTY STATUS." (5 U.S.C. 7131(B)).  /15/
 
    ARTICLE XI, SECTION 1 OF RESPONDENT'S AGREEMENT (G.C. EXH. 2)
 PROVIDES:
 
    "SECTION 1:  SOLICITATION OF UNION MEMBERSHIP OR DUES, AND OTHER
 INTERNAL BUSINESS OF THE
 
    UNION SHALL BE CONDUCTED DURING THE NON-DUTY HOURS OF ALL THE
 EMPLOYEES INVOLVED."
 
    I HAVE CAREFULLY CONSIDERED VARIOUS REGULATIONS, INCLUDING FPM SUPP.
 711-1 (RES. EXH. 5), AF REGULATION 40-711 (RES. EXH. 6) AF REG. 40-610
 (RES. EXH. 7) AND AF REG. 40-610-1 (RES. EXH. 8) AS WELL AS ARTICLE XIX
 OF RESPONDENT'S AGREEMENT (G.C. EXH. 2) AND FIND NOTHING THAT PURPORTS
 TO CONTROL WHAT AN EMPLOYEE MAY DO ON HIS BREAK TIME.  OBVIOUSLY,
 OFFICIAL TIME IS NOT AUTHORIZED FOR THE SOLICITATION OF UNION
 MEMBERSHIP;  HOWEVER, IT DOES NOT FOLLOW THAT DURING OFFICIAL TIME
 ALLOWED FOR AN ALTOGETHER DIFFERENT PURPOSE, I.E., SPECIFICALLY A PAID
 BREAK, INCLUDING A MEAL BREAK, AN EMPLOYEE IS BY LAW, REGULATION OR
 CONTRACT PROHIBITED FROM USING ALL OR PART OF THE PAID BREAK TO SOLICIT
 UNION MEMBERSHIP.  NOT ONLY DID MR. DECKER TESTIFY THAT HE KNEW OF NO
 RULE PROHIBITING SOLICITATION OF MEMBERSHIP ON BREAKS, BUT THE RECORD
 OTHERWISE SHOWS THAT EMPLOYEE ARE FREE TO USE BREAK TIME AS THEY WISH.
 FOR EXAMPLE, RESPONDENT HAS TERMINATED EMPLOYEES FOR "SLEEPING WHILE ON
 DUTY" AND/OR FOR "SLEEPING ON THE JOB" (RES. EXH. 2).  AT THE HEARING, I
 SPECIFICALLY ASKED COUNSEL FOR RESPONDENT IF AN EMPLOYEE WHO ELECTED TO
 SLEEP DURING HIS BREAK WOULD BE SUBJECT TO DISCIPLINE, INCLUDING
 DISCHARGE, FOR DOING SO, AND COUNSEL FOR RESPONDENT STATED THAT HE WOULD
 NOT.  IT IS TRUE, OF COURSE, THAT NEITHER THE STATUTE NOR THE
 REGULATIONS REFERS, SPECIFICALLY, TO SLEEPING ON DUTY;  BUT THE
 DISTINCTION URGED IS A DISTINCTION WITHOUT A DIFFERENCE.  IF RESPONDENT
 WERE CORRECT, THEN BREAK TIME IS DUTY TIME FOR ALL PURPOSES AND AN
 EMPLOYEE WHO SLEEPS DURING A BREAK SHOULD BE SUBJECT TO DISCHARGE FOR
 SLEEPING ON DUTY TO THE SAME EXTENT AS IF HE DID SO DURING NON-BREAK
 TIME.  THAT EMPLOYEES WOULD NOT BE DISCIPLINED FOR SLEEPING DURING BREAK
 TIME SIMPLY EMPHASIZES THAT EMPLOYEES ARE FREE TO USE BREAK TIME AS THEY
 SEE FIT.  AT THE SAME TIME, IT CERTAINLY COULD NOT BE CONTENDED THAT
 RESPONDENT HAS ANY OBLIGATION TO PROVIDE OFFICIAL TIME FOR SLEEPING.
 
    IT WAS CONSISTENTLY HELD UNDER EXECUTIVE ORDER 11491 THAT A POLICY,
 OR RULE, PROHIBITING SOLICITATION BY EMPLOYEES, ON THE PREMISES, DURING
 NON-WORK TIME, IN THE ABSENCE OF A SHOWING OF SPECIAL CIRCUMSTANCES,
 INTERFERED WITH EMPLOYEES' RIGHTS UNDER THE ORDER AND VIOLATED SECTION
 19(A)(1) OF THE ORDER.  CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, 1
 A/SLMR 27(1970);  FEDERAL ENERGY ADMINISTRATION, REGION IV, ATLANTA,
 GEORGIA, A/SLMR NO. 541, 5 A/SLMR 509(1975);  DEPARTMENT OF THE AIR
 FORCE, OFFUT AIR FORCE BASE, A/SLMR NO. 784, 7 A/SLMR 61(1977).
 RESPONDENT'S POSITION IS THAT, BECAUSE THE EMPLOYEES HERE INVOLVED ARE
 PAID FOR BREAKS, SUCH TIME IS DUTY TIME;  SEC. 31(B) PROVIDES THAT "ANY
 ACTIVITIES PERFORMED BY AN EMPLOYEE RELATING TO THE INTERNAL BUSINESS OF
 A LABOR ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP . . . )
 SHALL BE PERFORMED DURING THE TIME THE EMPLOYEE IS IN A NON-DUTY
 STATUS";  THAT CONGRESSMAN FORD, NOT CONGRESSMAN CLAY, STATED, IN
 EXPLAINING THE UDAL SUBSTITUTE, THAT:
 
    "SECTION 7132(B) OF THE COMPROMISE (ENACTED WITHOUT CHANGE AS
 7131(B)) PRECLUDES THE USE OF
 
    OFFICIAL TIME BY EMPLOYEES FOR CONDUCTING THE INTERNAL BUSINESS OF A
 LABOR ORGANIZATION.  THIS
 
    SUBSECTION SPECIFICALLY PROVIDES THAT EMPLOYEES SHALL NOT SOLICIT
 MEMBERSHIPS . . . ON
 
    OFFICIAL TIME." (LEG. HISTORY, P. 957).
 
    ACCORDINGLY, RESPONDENT ASSERTS THAT, "CONGRESS INTENDED TO PROHIBIT
 MEMBERSHIP SOLICITATION DURING THAT TIME WHEN AN EMPLOYEE WAS BEING PAID
 BY HIS EMPLOYER";  THAT, "EQUATING THE TERM 'PAID TIME' WITH 'OFFICIAL
 TIME', AS DID THE HOUSE REPORT (LEG. HISTORY, P.  704), SHOWS THAT
 RESPONDENT WOULD BE IN COMPLIANCE WITH RULES OF THE FEDERAL PERSONNEL
 MANUAL, AIR FORCE REGULATIONS, AND THE APPLICABLE LABOR CONTRACT.  THE
 MAINTENANCE OF A RULE PROHIBITING UNION SOLICITATION DURING PAID BREAK
 PERIODS AND THE 20 MINUTE PAID MEAL PERIOD WOULD NOT BE AN UNFAIR LABOR
 PRACTICE." (RESPONDENT'S BRIEF-- PAGES UNNUMBERED).
 
    WITH ALL DEFERENCE, I DO NOT FIND ANY SUPPORT IN THE LEGISLATIVE
 HISTORY FOR SUCH PROPOSITION, NAMELY, THAT SOLICITATION WAS INTENDED TO
 BE PROHIBITED DURING BREAK TIME.  INDEED, IT HAS LONG BEEN RECOGNIZED
 THAT THERE IS A VERY BASIC DIFFERENCE BETWEEN DUTY TIME (CLOCK TIME) AND
 WORKING TIME AND THAT NON-SOLICITATION RULES WHICH SEEK TO PROHIBIT
 SOLICITATION DURING ALL DUTY TIME (CLOCK TIME) VIOLATE THE RIGHTS OF
 EMPLOYEES.  IN EACH OF THE THREE CASES CITED ABOVE, CHARLESTON NAVAL
 SHIPYARD, FEDERAL ENERGY ADMINISTRATION AND OFFUTT AIR FORCE BASE, THE
 ASSISTANT SECRETARY HELD THAT PROHIBITION OF SOLICITATION, IN THE
 ABSENCE OF SPECIAL CIRCUMSTANCES, DURING "NON-WORK TIME" INTERFERED WITH
 EMPLOYEE RIGHTS.  IT IS NOT ALTOGETHER CLEAR THAT BREAK TIME WAS
 CONSIDERED IN THE CHARLESTON NAVAL SHIPYARD CASE, BUT BREAK TIME WAS
 SPECIFICALLY ADDRESSED IN THE OTHER TWO CASES.  IN FEDERAL ENERGY
 ADMINISTRATION, JUDGE NAIMARK STATED, IN PART,
 
    "RECENT DECISIONAL LAW IN THE PRIVATE SECTOR ENUNCIATED THE DOCTRINE
 THAT A RULE WHICH
 
    PROHIBITS SOLICITATION DURING 'WORKING HOURS' IS INVALID.  A CLEAR
 DISTINCTION WAS DRAWN
 
    BETWEEN PROHIBITING SOLICITATION DURING 'WORKING TIME' AND 'WORKING
 HOURS', THE LATTER TERM
 
    CONNOTING A PERIOD OF TIME FROM 'CLOCKING IN' UNTIL 'CLOCKING OUT' .
 . . " (5 A/SLMR AT 515).
 
    THE ASSISTANT SECRETARY CONCURRED WITH THIS CONCLUSION AND STATED, IN
 PART, AS FOLLOWS:
 
    "IN THIS REGARD, IT WAS HELD IN CHARLESTON NAVAL SHIPYARD, A/SLMR NO.
 1, THAT, IN THE
 
    ABSENCE OF ANY EVIDENCE OF SPECIAL CIRCUMSTANCES, THE LIMITING OR
 BANNING OF EMPLOYEE
 
    SOLICITATION DURING NON-WORK TIME CONSTITUTED IMPROPER CONDUCT IN
 VIOLATION OF SECTION
 
    19(A)(1) OF THE ORDER.  THUS, IN EFFECT, THE ASSISTANT SECRETARY HAD
 FOUND INVALID, ABSENT
 
    UNUSUAL CIRCUMSTANCES, THE PROHIBITION BY AGENCY MANAGEMENT OF
 EMPLOYEE SOLICITATION IN THEIR
 
    WORK AREAS DURING NON-WORK TIME." (5 A/SLMR AT 510)
 
    IN OFFUTT AIR FORCE BASE, THE ASSISTANT SECRETARY STATED, IN PART, AS
 FOLLOWS:
 
    " . . . BOTH THE NOTICE AND DIRECTION HAD THE EFFECT OF BARRING UNION
 ACTIVITY BY NCO CLUB
 
    EMPLOYEES DURING THEIR NON-WORK TIME, INCLUDING BREAKS AND LUNCH
 HOURS, A LIMITATION WHICH HAS
 
    BEEN FOUND TO BE VIOLATIVE OF THE ORDER, ABSENT UNUSUAL CIRCUMSTANCES
 NOT PRESENT HERE." (7
 
    A/SLMR AT 64).
 
    "DUTY TIME" OR "PAID TIME" HEREIN OBVIOUSLY INCLUDES ALL "CLOCK TIME"
 WHICH, IN TURN, ENCOMPASSES NON-WORK TIME ALLOWED DURING "DUTY TIME" FOR
 MEALS AND BREAKS.  THE FACT THAT EMPLOYEES ARE PAID FOR BREAK TIME,
 INCLUDING THE 20 MINUTE MEAL BREAK, DOES NOT MEAN THAT SUCH NON-WORK
 TIME CEASES TO BE NON-WORK TIME.  A PAID BREAK IS NON-WORK TIME AND ANY
 RULE BARRING UNION ACTIVITY BY EMPLOYEES DURING THEIR NON-WORK TIME,
 INCLUDING BREAKS AND MEAL PERIODS, WAS VIOLATIVE OF SECTION 19(A)(1) OF
 THE ORDER AND IS VIOLATIVE OF THE SUBSTANTIALLY IDENTICAL PROVISIONS OF
 SEC. 16(A)(1) OF THE STATUTE.  RESPONDENT NEITHER ASSERTS NOR HAS SHOWN
 ANY SPECIAL CIRCUMSTANCES, EXCEPT THE FACT THAT ITS EMPLOYEES ARE PAID
 FOR BREAKS, INCLUDING THE 20 MINUTE MEAL BREAK, WHICH DOES NOT
 CONSTITUTE A SPECIAL CIRCUMSTANCE WHICH WOULD JUSTIFY THE BANNING OF
 SOLICITATION DURING SUCH NON-WORK BREAK PERIODS.
 
    MAINTENANCE OF A PURPORTED RULE, OR POLICY, PROHIBITING SOLICITATION
 DURING NON-WORK TIME VIOLATED SEC. 16(A)(1) OF THE STATUTE;
 RESPONDENT'S INTERROGATION OF EMPLOYEES MCNEELY AND BUCKHEISTER
 CONCERNING, IN EFFECT, WHO SOLICITED THEIR MEMBERSHIP IN THE UNION
 INTERFERED WITH THE EXERCISE OF THEIR RIGHTS IN VIOLATION OF SEC.
 16(A)(1) OF THE STATUTE;  AND RESPONDENT'S STATEMENTS TO MR. BEASLEY,
 INCLUDING HIS COUNSELING ON MAY 26, 1979, FOR SPENDING DUTY TIME TO
 CONDUCT NON-OFFICIAL BUSINESS AND MR. SHARP'S WRITTEN CONFIRMATION THAT
 MR.  BEASLEY WAS "NOT TO DISCUSS ANY UNION MATTER WITH ANY EMPLOYEE
 WHILE ON DUTY UNLESS AN APPOSITE TIME HAD BEEN SCHEDULED AND VERIFIED"
 INTERFERED WITH MR. BEASLEY'S RIGHTS, GUARANTEED BY SEC. 2 OF THE
 STATUTE, AND THEREBY, ALSO, VIOLATED SEC. 16(A)(1) OF THE STATUTE.
 THEREFORE, I FIND THAT RESPONDENT, BY ITS INTERROGATION OF EMPLOYEES
 MCNEELY AND BUCKHEISTER, BY ITS EXPRESSION OF POLICY WITH RESPECT TO
 EMPLOYEE SOLICITATION, AS CONFIRMED BY MR. SHARP'S NOTE FOR THE RECORD,
 IMPROPERLY INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES IN THE
 EXERCISE OF RIGHTS ASSURED BY THE STATUTE AND, THEREBY, VIOLATED SEC.
 16(A)(1) OF THE STATUTE.  /16/
 
               III.  DISPARATE TREATMENT OF STEWARD BEASLEY
 
    THERE IS NO QUESTION THAT THE MATTERS FOR WHICH MR. BEASLEY WAS
 ADMONISHED WERE VERY REAL INCIDENTS.  THUS, MR. BEASLEY HAD SIGNED OUT A
 FORKLIFT ON APRIL 24, 1979, AND DID FAIL TO REFUEL IT;  HE DID COMPLETE
 ONLY ONE PALLET ON MAY 2, 1979;  AND ON MAY 9, 1979, MR. BEASLEY DID NOT
 DIRECTLY NOTIFY HIS SUPERVISOR THAT HE WOULD BE ABSENT.  I HAVE NO DOUBT
 THAT MR. BEASLEY WAS FULLY AWARE THAT HE WAS RESPONSIBLE FOR THE
 FORKLIFT SO LONG AS IT WAS CHARGED OUT TO HIM AND THAT IF HE "LOANED" IT
 TO ANOTHER EMPLOYEE HE DID SO AT HIS RISK;  BUT THE RECORD SHOWS NO
 OTHER INSTANCE THAT ANY OTHER EMPLOYEE HAD EVER BEEN ADMONISHED FOR
 FAILING TO REFUEL A FORKLIFT CHARGED TO HIM, INCLUDING, BUT NOT LIMITED
 TO, MR. HAYES' FAILURE TO REFUEL HIS FORKLIFT ON THE SAME SHIFT ON APRIL
 24, 1979.
 
    THERE IS NO DOUBT THAT MR. BEASLEY WAS FULLY AWARE OF THE REQUIREMENT
 THAT HIS SUPERVISOR BE NOTIFIED WHEN HE WAS TO BE ABSENT FROM WORK.  IN
 MARCH, 1979, HE HAD CALLED AN EVENING SUPERVISOR, MR. FISHER, AND
 ADVISED HIM THAT HE WOULD NOT BE IN AND ASKED MR.  FISHER TO RELAY THE
 MESSAGE TO HIS, BEASLEY'S, SUPERVISOR WHICH MR. FISHER REFUSED TO DO.
 ARTICLE XXIII, SECTION H OF THE LOCAL AGREEMENT (G.C. EXH. 2), PROVIDES
 THAT THE FIRST LEVEL SUPERVISOR WILL BE AUTHORIZED TO GRANT AND APPROVE
 REQUESTS FOR ALL SICK LEAVE EXCEPT ADVANCED SICK LEAVE.  SECTION 19A OF
 AFR 40-630/AFLC SUPP. 1 PROVIDES, IN PART, AS FOLLOWS:
 
    "19A.  SICK LEAVE ABSENCE BECAUSE OF ILLNESS . . . MUST BE REQUESTED
 WITHIN 2 HOURS AFTER
 
    THE BEGINNING OF THE WORK SHIFT . . .  WHENEVER POSSIBLE EMPLOYEES
 SHOULD PERSONALLY REQUEST
 
    SICK LEAVE AND KEEP THE IMMEDIATE SUPERVISOR ADVISED AS TO THE
 ANTICIPATED DURATION OF THE
 
    ABSENCE." (G.C. EXH. 5).
 
    RESPONDENT RELIES HEAVILY ON THE REQUIREMENT OF SECTION 10A(2) OF
 AFLC SUPP. 1, WHICH APPLIES TO EMERGENCIES WHERE PRIOR APPROVAL OF
 ANNUAL LEAVE CANNOT BE OBTAINED, WHICH PROVIDES, IN PART, THAT:
 
    . . . AN EMPLOYEE MUST NOTIFY HIS IMMEDIATE SUPERVISOR BY TELEPHONE
 OF THE NATURE OF THE
 
    EMERGENCY FOR WHICH ANNUAL LEAVE IS REQUESTED AS SOON AS POSSIBLE
 AFTER THE BEGINNING OF THE
 
    WORK SHIFT BUT WITHIN A MAXIMUM OF 2 HOURS . . . " (G.C. EXH.  5).
 
    RESPONDENT'S MEMORANDUM OF OCTOBER 27, 1976, AS MATERIAL, SIMPLY
 PROVIDES THAT:
 
    " . . . WHEN AN EMPLOYEE REPORTS SICK LEAVE BY TELEPHONE, THE
 SUPERVISOR SHOULD ENDEAVOR TO
 
    OBTAIN FROM THE EMPLOYEE A DATE ON WHICH THE EMPLOYEE WILL HAVE
 REPORT BACK FOR DUTY
 
    . . . ." (G.C. EXH. 6).
 
    IT IS CLEAR THAT:  A) REQUESTS FOR UNSCHEDULED SICK LEAVE MUST BE
 MADE "WITHIN 2 HOURS AFTER THE BEGINNING OF THE WORK SHIFT";  AND B)
 THAT THE EMPLOYEE'S FIRST LEVEL SUPERVISOR IS AUTHORIZED TO GRANT AND
 APPROVE REQUESTS FOR SUCH SICK LEAVE.  MOREOVER, AS NOTED ABOVE, MR.
 BEASLEY WAS FULLY AWARE THAT HIS SUPERVISOR MUST BE NOTIFIED;  BUT WAS
 IT OBLIGATORY THAT MR. BEASLEY SPEAK TO HIS SUPERVISOR?  SECTION 19A OF
 AFLC SUPP. 1, WHICH GOVERNS SUCH REQUESTS, DOES NOT CONTAIN THE LANGUAGE
 OF 10A(2) OF AFLC SUPP. 1, WHICH GOVERNS EMERGENCY ANNUAL LEAVE, THAT
 "AN EMPLOYEE MUST NOTIFY HIS IMMEDIATE SUPERVISOR BY TELEPHONE";  AND
 MR. KELLY, HEAD OF LABOR RELATIONS AT TINKER AIR FORCE BASE, TESTIFIED
 THAT THE PURPOSE OF THE REQUIREMENT WAS "NOTIFYING THE EMPLOYER THAT HIS
 INTENTIONS ARE NOT TO BE IN THE SHOP THAT DAY" (TR.  19) AND THAT, AT
 THAT STAGE, THERE WAS NO OBLIGATION ON THE PART OF MANAGEMENT TO APPROVE
 THE SICK LEAVE REQUEST.  ASSUMING, AT THE RECORD CLEARLY SHOWS AS TO MR.
 BEASLEY'S NOTICE ON MAY 9, 1979, THAT THE EMPLOYEE'S SUPERVISOR IS, IN
 FACT, NOTIFIED PRIOR TO THE COMMENCEMENT OF THE SHIFT THAT AN EMPLOYEE
 WILL BE ABSENT, IT CERTAINLY APPEARS THAT THIS PURPOSE OF THE RULE HAS
 BEEN FULLY MET.  INDEED, FROM THE STANDPOINT OF THE SUPERVISOR BEING
 ABLE TO ACCOMMODATE FOR THE ABSENCE OF AN EMPLOYEE, NOTIFICATION PRIOR
 TO THE BEGINNING OF A SHIFT COULD ONLY BE BENEFICIAL AS CONTRASTED WITH
 NOTICE NOT MORE THAN TWO HOURS AFTER COMMENCEMENT OF THE SHIFT.  THE
 RISK AN EMPLOYEE TAKES IS THAT ACTUAL NOTICE MAY NEVER REACH HIS
 SUPERVISOR AS SUPERVISORS ON OTHER SHIFTS HAVE NO OBLIGATION, IN FACT
 MAY BE INSTRUCTED TO REFUSE REQUESTS, TO RELAY SUCH MESSAGES.  BOTH
 MESSRS. GIBSON AND SHARP WERE INFORMED AT, OR IMMEDIATELY PRIOR TO,
 COMMENCEMENT OF MR. BEASLEY'S SHIFT ON MAY 9, 1979, THAT HE WOULD BE
 ABSENT.  NOT ONLY DOES THE RECORD SHOW NO INSTANCE OF ADMONISHMENT OF
 ANY OTHER EMPLOYEE UNDER LIKE CIRCUMSTANCES, NOTWITHSTANDING THAT THE
 RECORD SHOWS A PRACTICE OF EMPLOYEES CALLING PRIOR TO THE COMMENCEMENT
 OF THEIR SHIFTS AND LEAVING MESSAGES WITH SUPERVISORS OR EMPLOYEES;  BUT
 MR. GIBSON HAD WITHDRAWN THE MARCH, 1979, ADMONISHMENT OF MR. BEASLEY
 WHERE THE RECORD SHOWS THAT HE WAS NOT NOTIFIED AT ALL THAT MR. BEASLEY
 HAD CALLED AND INFORMED A SUPERVISOR ON ANOTHER SHIFT, MR.  FISHER, THAT
 HE WOULD NOT BE IN AND MR. FISHER HAD TOLD BEASLEY HE WAS NOT ALLOWED TO
 TAKE A MESSAGE FOR ANOTHER SUPERVISOR AND WOULD NOT RELAY MR. BEASLEY'S
 MESSAGE.  WHERE BOTH MESSRS. GIBSON AND SHARP KNEW THAT BEASLEY HAD
 CALLED AND KNEW THAT HE WOULD NOT BE IN, THE LOGIC OF MR. GIBSON'S
 POSITION THAT UNLESS BEASLEY PERSONALLY CALLED MR. SHARP WITHIN THE TWO
 HOUR TIME FRAME, OF SECTION 19A OF AFLC SUPP. 1, ESCAPES ME;  BUT, MORE
 IMPORTANT, ADMONISHMENT OF BEASLEY "FOR NOT REPORTING ABSENCE WITHIN TWO
 HOURS OF THE BEGINNING OF THE SHIFT" WAS FALSE, WAS PRETEXTUAL, AND WAS
 A FURTHER DISPARATE ACT DIRECTED AT BEASLEY.
 
    I HAVE NO DOUBT THAT ON MAY 2, 1979, MR. BEASLEY, AFTER "BUILDING"
 ONE PALLET, WAS SITTING DOWN WHILE MR. PAINTER HAD BEGUN A SECOND
 PALLET.  ADMONISHMENT OF MR.  BEASLEY FOR SITTING DOWN WOULD HAVE BEEN
 UNDERSTANDABLE;  BUT TO ADMONISH ONE OF THE TWO EMPLOYEES ASSIGNED TO
 THE SAME PALLET BECAUSE IT TOOK "TOO LONG" TO COMPLETE THAT PALLET WOULD
 BE ASTONISHING UNDER ANY CIRCUMSTANCES AND IS PARTICULARLY SO AS TO THE
 ADMONISHMENT OF MR. BEASLEY FOR THE REASONS THAT:  A) MR. PAINTER
 APPEARS TO HAVE BEEN CHARGED WITH PRIMARY RESPONSIBILITY FOR THE PALLET
 IN QUESTION;  AND B) MR. BEASLEY HAD, TO MR. GIBSON'S KNOWLEDGE, DEVOTED
 PART OF HIS TIME TO DISCUSSIONS WITH MR. GIBSON AS A UNION STEWARD.  I
 FOUND MR. GIBSON'S TESTIMONY THAT HE DID NOT ADMONISH MR. PAINTER
 UNWORTHY OF BELIEF;  BUT WHETHER HIS TESTIMONY, THAT HE GAVE MR. PAINTER
 NO ADMONISHMENT, OR MR. PAINTER'S TESTIMONY, THAT HE RECEIVED AN
 ADMONISHMENT WHICH WAS SUBSEQUENTLY REMOVED, IS ACCEPTED IT IS,
 NEVERTHELESS, PLAIN THAT MR. BEASLEY WAS TREATED IN A DIFFERENT MANNER,
 FOR THE SAME CONDUCT, THAN MR. PAINTER.
 
    AS TO EACH ASSERTED SHORTCOMING, THE RECORD SHOWS, AS A MINIMUM, A
 PATTERN OF DISPARATE TREATMENT OF MR. BEASLEY AND THAT SUCH PATTERN
 FOLLOWED MR. BEASLEY'S ACTIVITY AS A UNION STEWARD.  MOREOVER, THE
 ALLEGATION CONCERNING THE ALLEGED FAILURE TO REPORT ABSENCE "WITHIN TWO
 HOURS OF THE BEGINNING OF THE SHIFT" ON MAY 9, 1979, WAS, IN ADDITION,
 FALSE AND PRETEXTUAL AS WAS THE SICK LEAVE ABSENCE LETTER ISSUED TO MR.
 BEASLEY.  IN ADDITION, MR. GIBSON DENIED A LETTER OF COMMENDATION TO MR.
 BEASLEY DESPITE MR. BRAY'S RECOMMENDATION THAT HE RECEIVE A LETTER OF
 COMMENDATION AND MR. GIBSON'S PURPORTED JUSTIFICATION, NAMELY THAT HE
 HAD NOT CONTRIBUTED AS MUCH EFFORT AS OTHER EMPLOYEES, WAS WHOLLY
 UNSUPPORTED AND, INDEED, CONTRARY TO THE CREDITED TESTIMONY OF MR. BRAY.
  AND MR. BEASLEY WAS IMPROPERLY COUNSELED FOR SOLICITING UNION
 MEMBERSHIP DURING BREAK PERIODS.  FINALLY, RESPONDENT'S UNLAWFUL
 MOTIVATION WAS CLEARLY SHOWN, INTER ALIA, BY MR.  CURLING'S STATEMENT TO
 MR. BRAY IN MARCH, 1979, THAT:
 
    " . . . THE UNION WAS A JOKE, AND THEY HAD MANAGED TO REMOVE ALL
 UNION STEWARDS IN THE
 
    PAST, AND THEY WOULDN'T HAVE NO TROUBLE WITH BEASLEY." (TR.  216);
 
    AND BY MR. GIBSON'S STATEMENT TO MR. BRAY THAT HE, BRAY, SHOULD
 FORGET ABOUT A LETTER OF COMMENDATION FOR BEASLEY, THAT "HE DIDN'T WANT
 BEASLEY TO HAVE A LETTER, IF AT ALL POSSIBLE." (TR. 227).  WEIGHING ALL
 FACTORS, INCLUDING THOSE SET FORTH ABOVE, I FIND THAT RESPONDENT'S
 DISPARATE TREATMENT OF MR. BEASLEY, INCLUDING CERTAIN FALSE AND
 PRETEXTUAL ACTS, WAS, AT LEAST IN PART, BECAUSE OF MR. BEASLEY'S
 ACTIVITY AS A UNION STEWARD AND HIS ACTIVITY IN SOLICITING UNION
 MEMBERSHIP DURING BREAKS, AND THAT RESPONDENT INTERFERED WITH,
 RESTRAINED, OR COERCED MR. BEASLEY IN HIS EXERCISE OR RIGHTS GUARANTEED
 BY SEC. 2 OF THE STATUTE, AND THAT RESPONDENT THEREBY VIOLATED SEC.
 16(A)(1) OF THE STATUTE.
 
    NOTWITHSTANDING THE FOREGOING VIOLATION OF SEC. 16(A)(1), MR.
 BEASLEY WAS DISCHARGED DURING HIS PROBATIONARY PERIOD, IN PART, FOR THE
 PURPORTED REASON THAT HE REFUSED A DIRECT ORDER TO CARRY OUT A PROPER
 WORK ASSIGNMENT.  THE RECORD IS DEVOID OF ANY CREDIBLE EVIDENCE THAT THE
 ORDER IN QUESTION HAD ANY RELATION WHATEVER TO MR. BEASLEY'S ACTIVITY AS
 A UNION STEWARD.  TO THE CONTRARY, THE RECORD SHOWS AFFIRMATIVELY, AND
 WITHOUT CONTRADICTION, THAT ALL OTHER EMPLOYEES WERE ORDERED TO TAKE
 PART IN CLEAN-UP ACTIVITIES AND, MOREOVER, THAT MR. BEASLEY HAD
 PREVIOUSLY PERFORMED SUCH DUTIES.  I HAVE NO DOUBT THAT AS MR. GIBSON
 TESTIFIED, MR. BEASLEY NOT ONLY REFUSED TO PERFORM THE CLEAN-UP DUTIES
 BUT THAT HE DID SO IN A MANNER DESIGNED TO PROVOKE A RESPONSE BY MR.
 GIBSON.  HAD MR. BEASLEY SIMPLY REFUSED TO CARRY OUT A PROPER WORK
 ASSIGNMENT, HIS DISCHARGE FOR SUCH REASON MIGHT WELL HAVE BEEN
 JUSTIFIED, NOTWITHSTANDING RESPONDENT'S VIOLATION OF SEC. 16(A)(1) IN
 OTHER, UNRELATED, REGARDS.  HOWEVER, MR. BEASLEY DID NOT SIMPLY REFUSE
 TO CARRY OUT A PROPER WORK ASSIGNMENT AND NEITHER MR. GIBSON NOR MR.
 DECKER TREATED THE INCIDENT AS A REFUSAL TO OBEY A DIRECT ORDER.
 INDEED, MR. BEASLEY ASSERTED THAT SUCH WORK ASSIGNMENT WAS NOT PROPER
 BECAUSE "ITS NOT IN MY JOB DESCRIPTION" AND WHEN HE ASKED TO SPEAK TO
 MR. DECKER, MR. GIBSON AGREED.  MR. DECKER ADMITTED THAT, WHEN HE LOOKED
 AT THE JOB DESCRIPTION, "THE SPECIFIC REQUIREMENT WASN'T SPELLED OUT IN
 HIS JOB DESCRIPTION" AND HE TOLD MR. BEASLEY HE, DECKER, "WOULD HAVE TO
 FURTHER CHECK IT OUT, GET BACK WITH HIM CONCERNING THE REQUIREMENT TO
 CLEAN UP IN HIS WORK AREA." IT IS QUITE TRUE THAT MR. DECKER TOLD MR.
 BEASLEY THAT, IN THE MEANTIME, HE DO THE WORK AND GRIEVE IT LATER;  BUT
 THE RECORD SHOWS THAT, AT THIS POINT, IT WAS THE END OF THE SHIFT AND,
 ACCORDINGLY, MR. BEASLEY DID NOT HAVE OCCASION TO RETURN TO HIS WORK
 PLACE.  THE RECORD DOES NOT SHOW THAT MR. BEASLEY THEREAFTER REFUSED TO
 PERFORM CLEAN-UP WORK.
 
    UNDER THE CIRCUMSTANCES, MR. BEASLEY'S QUESTIONING OF THE ASSIGNMENT
 OF CLEAN-UP WORK WHICH, AS HE CONTENDED, WAS NOT SPELLED OUT IN HIS JOB
 DESCRIPTION WAS NOT A SIMPLE REFUSAL TO PERFORM A PROPER WORK
 ASSIGNMENT;  MR. GIBSON DID NOT ORDER MR. BEASLEY TO PERFORM THE WORK
 AFTER MR. BEASLEY ASSERTED IT WAS NOT INCLUDED IN HIS JOB DESCRIPTION,
 BUT AGREED THAT MR. BEASLEY COULD SPEAK TO MR. DECKER.  MR. DECKER'S
 INSTRUCTIONS TO MR. BEASLEY, THAT HE SHOULD PERFORM THE WORK AND GRIEVE
 LATER, WAS NOT COMPLIED WITH ONLY BECAUSE MR. BEASLEY'S SHIFT WAS OVER.
 ACCORDINGLY, I DO NOT FIND A REFUSAL TO PERFORM A PROPER WORK ASSIGNMENT
 AND THE FACT THAT RESPONDENT COUPLED THIS INCIDENT WITH THE EARLIER
 ALLEGED SHORTCOMINGS AS "THE STRAW THAT BROKE THE CAMEL'S BACK" ALONE,
 STRONGLY INFERS THAT THE SAME UNLAWFUL MOTIVE AND PURPOSE TAINTED THIS
 FINAL ACT OF TERMINATION.  MOREOVER, MR. GIBSON'S TREATMENT OF THIS
 INCIDENT DIRECTLY SHOWS A CONTINUATION OF HIS PLAN TO GET RID OF MR.
 BEASLEY.  THUS, AS SET FORTH ABOVE, AFTER MR. BEASLEY ASSERTED THAT THE
 ASSIGNMENT OF CLEAN-UP WORK WAS IMPROPER, AS OUTSIDE HIS JOB
 DESCRIPTION, MR. GIBSON DID NOT ORDER BEASLEY TO PERFORM THE WORK, BUT
 ACQUIESCED IN BEASLEY'S REQUEST TO SPEAK TO MR. DECKER;  NEITHER MR.
 GIBSON NOR MR. DECKER TREATED THE INCIDENT AS A REFUSAL TO OBEY A DIRECT
 ORDER;  NO DISCIPLINE WAS IMPOSED ON JUNE 5, 1979;  MR. GIBSON'S
 STATEMENT, IN HIS LETTER OF JUNE 16, 1979, THAT BEASLEY "ON JUNE 5,
 1979, REFUSED TO CARRY OUT A PROPER WORK ASSIGNMENT", WAS NOT ACCURATE
 AND, AT BEST, WAS ONLY PARTIALLY TRUE.  THUS, ALTHOUGH THE INCIDENT WAS
 VERY REAL, MR. GIBSON'S FAILURE TO DISCLOSE THE TRUE NATURE OF THE
 INCIDENT, AND IN PARTICULAR HIS, GIBSON'S, OWN ACQUIESCENCE IN BEASLEY'S
 DISCUSSING THE PROPRIETY OF THE WORK ASSIGNMENT WITH MR. DECKER, SHOWS A
 FURTHER EFFORT TO "GET" BEASLEY BY MISREPRESENTATION OF THE INCIDENT OF
 JUNE 5, 1979, AND MAKES HIS STATEMENT PRETEXTUAL IN NATURE.  /17/
 INDEED, MR. GIBSON'S CONDUCT IN ITS TOTALITY SHOWED A STEADFAST INTENT
 TO "GET" BEASLEY AFTER BEASLEY BECAME ACTIVE AS A UNION STEWARD.  THIS
 APPEARS FROM THE REPEATED ACTS WHEREBY BEASLEY WAS SINGLED OUT FOR
 DISPARATE TREATMENT;  BY GIBSON'S QUESTIONING OF EMPLOYEES ABOUT
 BEASLEY;  BY HIS ATTEMPT TO OBTAIN A WRITTEN STATEMENT FROM MCNEELY TO
 IMPLICATE BEASLEY;  BY HIS STATEMENT TO BEASLEY ABOUT HIS TALKING TO
 EMPLOYEES;  BY HIS QUESTIONABLE RATING OF BEASLEY'S PERFORMANCE AS AN
 EMPLOYEE IN LIGHT OF GIBSON'S OWN NUMERICAL EVALUATION OF BEASLEY BOTH
 IN DECEMBER, 1978, AND IN MARCH, 1979, BEFORE BEASLEY BECAME ACTIVE ON
 BEHALF OF THE UNION, AND BEASLEY'S STANDING IN HIS TRAINING CLASS;  BY
 THE FALSE AND PRETEXTUAL ALLEGATION CONCERNING THE MAY 9, 1979, ABSENCE
 INCIDENT;  AND BY HIS LESS THAN FORTHRIGHT STATEMENT CONCERNING THE JUNE
 5, 1979, INCIDENT, ALL OF WHICH CONVINCINGLY DEMONSTRATED THAT THE
 INCIDENT OF JUNE 5, 1979, /18/ WAS USED BY MR. GIBSON IN FURTHERANCE OF
 HIS UNLAWFUL PURPOSE TO GET RID OF MR.  BEASLEY BECAUSE OF BEASLEY'S
 ACTIVITY ON BEHALF OF THE UNION.
 
    THE REFUSED TO PERFORM A WORK ASSIGNMENT WAS NEVER ASSERTED AS
 SUFFICIENT JUSTIFICATION FOR MR. BEASLEY'S TERMINATION, STANDING ALONE.
 THUS, BUT FOR ASSERTED GROUNDS WHICH HAVE BEEN FOUND IMPREMISSIBLE
 BECAUSE SUCH GROUNDS WERE IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE,
 MR. BEASLEY WOULD NOT HAVE BEEN TERMINATED AS A PROBATIONARY EMPLOYEE.
 HOWEVER, I DO NOT BELIEVE THE INCIDENT OF JUNE 5, 1979, CAN, OR SHOULD
 BE, VIEWED IN ISOLATION UNDER THE CIRCUMSTANCES OF THIS CASE, AND, WHEN
 VIEWED IN CONTEXT, I FIND THE REFUSAL TO PERFORM WORK INCIDENT OF JUNE
 5, 1979, WAS SIMPLY A FURTHER INCIDENT IN FURTHERANCE OF MR. GIBSON'S
 UNLAWFUL PURPOSE TO GET RID OF MR. BEASLEY BECAUSE OF HIS ACTIVITY ON
 BEHALF OF THE UNION.  IF VIEWED SEPARATELY, I, NEVERTHELESS, HAVE FOUND
 MR. GIBSON'S STATEMENT IN HIS LETTER OF JUNE 16, 1979, WAS FATALLY
 FLAWED FOR THE REASONS SET FORTH ABOVE, AND WAS AN EFFORT TO "GET"
 BEASLEY BY MISREPRESENTATION OF THE INCIDENT OF JUNE 5, 1979, WHICH
 RENDERED HIS STATEMENT PRETEXTUAL IN NATURE.  ACCORDINGLY, I FURTHER
 FIND THAT MR. BEASLEY WAS TERMINATED, AT LEAST IN PART, BECAUSE OF HIS
 UNION ACTIVITY IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE.
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED AND IS ENGAGING IN CERTAIN
 CONDUCT IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE, IT IS RECOMMENDED
 THAT THE AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7), AND
 SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5 C.F.R.  CHAPTER
 XIV, SEC. 2423.26, FED.  REG. VOL. 45, NO. 12, JANUARY 17, 1980, THE
 AUTHORITY HEREBY ORDERS THAT THE OKLAHOMA CITY AIR LOGISTICS CENTER
 (AFLC), TINKER AIR FORCE BASE SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    A) INTERROGATING EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE THEY
 GOT INFORMATION ABOUT
 
    JOINING AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 916, THE EXCLUSIVE
 
    REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
 REPRESENTATIVE.
 
    B) PROMULGATING, MAINTAINING, OR ENFORCING ANY DIRECTIVE, REGULATION,
 OR RULE WHICH
 
    PROHIBITS OR PREVENTS EMPLOYEES FROM SOLICITING ANY OTHER EMPLOYEES
 AT THEIR WORKPLACE DURING
 
    NON-WORK TIME, SPECIFICALLY INCLUDING PAID MEAL AND BREAK PERIODS, ON
 BEHALF OF THE AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY OTHER
 LABOR ORGANIZATION,
 
    PROVIDING THERE IS NO INTERFERENCE WITH THE WORK OF THE AGENCY.
 
    C) DISCHARGING, DISCIPLINARY, OR TREATING IN A DISPARATE MANNER JOHN
 BEASLEY IN REGARD TO
 
    HIS CONDITIONS OF EMPLOYMENT IN ORDER TO INTERFERE WITH, RESTRAIN, OR
 COERCE HIM IN THE
 
    EXERCISE OF ANY RIGHT ASSURED BY THE STATUTE.
 
    D) APPLYING AND/OR ENFORCING EXISTING PROCEDURES, POLICIES AND
 REGULATIONS, IN A DISPARATE
 
    MANNER WHICH INTERFERES WITH, RESTRAIN, OR COERCES MEMBERS OF THE
 AMERICAN FEDERATION OF
 
    GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY OTHER LABOR
 ORGANIZATION.
 
    E) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE IN
 
    THE EXERCISE BY THE EMPLOYEES OF ANY RIGHT UNDER THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF THE STATUTE:
 
    A) OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS FORMER
 OR SUBSTANTIALLY
 
    EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY OR TO HIS
 OTHER RIGHTS AND PRIVILEGES,
 
    AND MAKE HIM WHOLE, CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS,
 FOR ANY LOSSES OF INCOME
 
    HE MAY HAVE SUFFERED BY REASON OF THE UNLAWFUL TERMINATION OF JOHN
 BEASLEY AS A PROBATIONARY
 
    EMPLOYEE, BY PAYING TO HIM A SUM OF MONEY EQUAL TO THE AMOUNT HE
 WOULD HAVE EARNED OR RECEIVED
 
    FROM THE DATE OF HIS TERMINATION TO THE DATE OF THE OFFER OF
 REINSTATEMENT, LESS ANY AMOUNTS
 
    EARNED BY SUCH EMPLOYEE THROUGH OTHER EMPLOYMENT DURING THE ABOVE
 NOTED PERIOD.
 
    B) POST AT ITS FACILITIES AT TINKER AIR FORCE BASE 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 COMMANDING OFFICER, OKLAHOMA CITY AIR LOGISTICS
 CENTER (AFLC), TINKER AIR
 
    FORCE BASE, 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,
 
    INCLUDING BUT NOT LIMITED TO EMPLOYEES OF ITS AIR FREIGHT TERMINAL,
 ARE CUSTOMARILY
 
    POSTED.  THE COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SAID NOTICES ARE
 
    NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
 NOTIFY THE REGIONAL
 
    DIRECTOR OF REGION 6, ROOM 450, OLD POST OFFICE BUILDING, BRYAN &
 ERVAY STREETS, DALLAS, TEXAS
 
    75221, IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
 WHAT STEPS HAVE BEEN TAKEN
 
    TO COMPLY HEREWITH.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MAY 23, 1980
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER BY 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 EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE
 THEY GOT INFORMATION ABOUT JOINING AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 916, THE EXCLUSIVE REPRESENTATIVE OF OUR
 EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
 
    WE WILL NOT PROMULGATE, MAINTAIN, OR ENFORCE ANY DIRECTIVE,
 REGULATION, OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES FROM
 SOLICITING ANY OTHER EMPLOYEES AT THE WORKPLACE DURING NON-WORK TIME,
 SPECIFICALLY INCLUDING PAID MEALS AND BREAK PERIODS, ON BEHALF OF THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY
 OTHER LABOR ORGANIZATION, PROVIDING THERE IS NO INTERFERENCE WITH THE
 WORK OF THE AGENCY.
 
    WE WILL NOT DISCHARGE, DISCIPLINE, OR TREAT IN A DISPARATE MANNER
 JOHN BEASLEY IN REGARD TO HIS CONDITIONS OF EMPLOYMENT IN ORDER TO
 INTERFERE WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE OF ANY RIGHT
 ASSURED BY THE STATUTE.
 
    WE WILL NOT APPLY AND/OR ENFORCE EXISTING PROCEDURES, POLICIES AND
 REGULATIONS IN A DISPARATE MANNER WHICH INTERFERES WITH, RESTRAINS, OR
 COERCES MEMBERS IN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 916, OR ANY OTHER LABOR ORGANIZATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
 UNDER THE STATUTE.
 
    WE WILL OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS
 FORMER OR SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS
 SENIORITY OR TO HIS OTHER RIGHTS AND PRIVILEGES, AND MAKE HIM WHOLE,
 CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME
 HE MAY HAVE SUFFERED BY REASON OF OUR UNLAWFUL TERMINATION OF HIS
 EMPLOYMENT DURING HIS PROBATIONARY PERIOD, BY PAYING TO HIM A SUM OF
 MONEY EQUAL TO THE AMOUNT WHICH HE WOULD HAVE EARNED OR RECEIVED FROM
 THE DATE OF HIS TERMINATION TO THE DATE OF THE OFFER OF REINSTATEMENT,
 LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THE ABOVE
 NOTED PERIOD.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
                                (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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 6, WHOSE
 ADDRESS IS:  ROOM 450, OLD POST OFFICE BUILDING, BRYAN & ERVAY STREETS,
 DALLAS, TEXAS 75221 (TELEPHONE NUMBER 214-767-4996).
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7116(E) PROVIDES:
 
    (E) THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT, OPINION OR THE
 MAKING OF ANY STATEMENT
 
    WHICH--
 
    (1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
 EMPLOYEES TO EXERCISE
 
    THEIR RIGHT TO VOTE IN SUCH ELECTION,
 
    (2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
 STATEMENT MADE BY ANY
 
    PERSON, OR
 
    (3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
 LABOR-MANAGEMENT RELATIONS AND
 
    REPRESENTATION,
 
    SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
 OR PROMISE OF BENEFIT
 
    OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A) CONSTITUTE AN UNFAIR
 LABOR PRACTICE UNDER ANY
 
    PROVISION OF THIS CHAPTER, OR (B) CONSTITUTE GROUNDS FOR THE SETTING
 ASIDE OF ANY ELECTION
 
    CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER.
 
    /2/ THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY FAILED TO REMEDY THE
 IMPROPER DISCIPLINE OF EMPLOYEE BEASLEY WHICH WAS BASED ON HIS
 SOLICITATION ACTIVITY.  SUCH INADVERTENCE IS CORRECTED IN PARAGRAPH 2(B)
 BELOW.
 
    /3/ HEREINAFTER, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE
 STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
 PORTION OF THE STATUTE REFERENCE.  FOR EXAMPLE, SECTION 7116(A)(1)
 SIMPLY AS "16(A)(1)";  HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED,
 ALL SUCH REFERENCE ARE TO CHAPTER 71 OF THE STATUTE.
 
    /4/ INTERIM RULES AND REGULATIONS WERE ISSUED ON JULY 30, 1979,
 EFFECTIVE JULY 30, 1979, FED. REG., VOL. 44, NO. 147, JULY 30, 1979;
 FINAL RULES AND REGULATIONS WERE ISSUED JANUARY 17, 1980, EFFECTIVE
 JANUARY 28, 1980, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980.  THE
 FINAL RULES AND REGULATIONS WILL GOVERN ALL MATTERS HEREINAFTER.
 
    /5/ GENERAL COUNSEL CITES A STATEMENT OF AN ADMINISTRATIVE LAW JUDGE
 IN FEDERAL STAINLESS SINK, DIVISION OF UNARCO INDUSTRIES, INC., 197 NLRB
 489, 491(1972), TO THE EFFECT THAT EMPLOYEES WHO TESTIFY AGAINST THEIR
 EMPLOYERS KNOW THEY ARE IN PERIL OF ECONOMIC REPRISAL AND ARE NOT LIKELY
 TO TESTIFY FALSELY AND, THEREFORE, EMPLOYEES MUST BE CREDITED.  WHETHER
 THE STATEMENT QUOTED BY GENERAL COUNSEL IN HIS BRIEF IN THIS CASE, WHICH
 HAS ALSO BEEN SET FORTH IN OTHER BRIEFS, WAS PROPER OR JUSTIFIED IN THE
 CASE IN WHICH IT AROSE, I, OF COURSE, EXPRESS NO OPINION WHATEVER.  IT
 IS CONCEIVABLE THAT IN CONTEXT OF THE CASE IN WHICH THE STATEMENT WAS
 MADE IT WAS WHOLLY PROPER;  BUT AS AUTHORITY FOR WHICH GENERAL COUNSEL
 CITES IT, NAMELY, THAT ALL EMPLOYEE WITNESSES MUST BE CREDITED, IT IS AN
 ASININE ASSERTION WHICH, CHARITABLY, CAN BE ONLY BE DESCRIBED AS PURE
 HOGWASH.  EMPLOYERS COULD ASSERT WITH AT LEAST EQUAL EFFICACY THAT,
 BECAUSE OF THE FEAR OF UNION AND PEER PRESSURE, NO EMPLOYEE WITNESS
 SHOULD BE CREDITED IN ANY SITUATION PRESENTING A CONFLICT.  OBVIOUSLY,
 ANY SUCH SUGGESTION WOULD BE EQUALLY ASININE.  NOTHING IN MY EXPERIENCE
 HAS EVER DEMONSTRATED THAT ANY CLASS OF WITNESSES IS SO RELIABLE THAT
 THEIR TESTIMONY MUST ALWAYS BE CREDITED, BE THEY EMPLOYEES, OR
 MANAGEMENT OFFICIALS, OR LAWYERS, OR MINISTERS, ETC.  CREDIBILITY IS NOT
 NECESSARILY, OR EVEN PRIMARILY, THE RESULT OF A DISPOSITION TO TESTIFY
 FALSELY, BUT VERY OFTEN IS ATTRIBUTABLE TO THE FACT THAT THE INDIVIDUAL
 IS A POOR OBSERVER AND/OR HAS LIMITED ABILITY TO ACCURATELY RECALL WHAT
 HE HAS SEEN OR HEARD.  UNTIL THE MILLENNIUM ARRIVES WE MUST EVALUATE THE
 CREDIBILITY OF EACH WITNESS INDIVIDUALLY AS BEST WE MAY, INCLUDING
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR.
 
    OF COURSE, FOR REASONS STATED ABOVE, I REJECT ABSOLUTELY THE
 PROPOSITION THAT ANY CLASS OF WITNESSES MUST, OR EVEN SHOULD, BE
 CREDITED OVER ANY OTHER CLASS OF WITNESSES.
 
    /6/ GENERAL COUNSEL IN HIS BRIEF, IV FACTS, N. 3, STATES THAT THE
 HOURS OF THE DAY SHIFT WERE, AND ARE, "8 A.M. TO 6 P.M." I AM AWARE OF
 THIS REFERENCE IN THE TRANSCRIPT AT P. 22;  BUT IN CONTEXT IT IS
 APPARENT THAT THE INITIAL REFERENCE AT LINE 12 WAS TO MILITARY TIME AND
 SHOULD HAVE BEEN 1600, NOT 6:00 AS THE TRANSCRIPT SHOWS, WHICH IS
 CLEARLY SHOWN THEREAFTER AT LINE 16.
 
    /7/ MR. GIBSON DENIED DISCUSSING THE UNION WITH MR. MILUS.  IN ITS
 BRIEF, RESPONDENT STATES,
 
    "MR. MILUS' TESTIMONY IS, HOWEVER, OPEN TO SOME QUESTION IN THAT THE
 TESTIMONY AT TRIAL AND
 
    SHIFT ROSTERS ENTERED AS EVIDENCE CLEARLY SHOW THAT MR. GIBSON WAS
 NOT TRANSFERRED ONTO
 
    GRAVESHIFT AS A SUPERVISOR UNTIL 25 MARCH 1979."
 
    THE SHIFT ROSTERS (G.C. EXH. 8) DO, INDEED, SHOW THAT MR. GIBSON WAS
 NOT TRANSFERRED TO THE GRAVEYARD SHIFT UNTIL MARCH 25, 1979 (HE WAS ON
 THE GRAVE SHIFT 12/31/78 TO 1/6/79);  AND THAT MR. MILUS WAS TRANSFERRED
 TO THE GRAVE SHIFT MARCH 31, 1979;  BUT, OBVIOUSLY MR. GIBSON, WHO
 WORKED SOMEWHERE IN BETWEEN JANUARY 6, 1979, AND MARCH 25, 1979, DOES
 NOT, SO FAR AS I CAN DETERMINE, APPEAR ON ANY ROSTER FOR THE PERIOD
 PRIOR TO MARCH 25;  NOR DOES MR. MILUS APPEAR ON ANY ROSTER PRIOR TO
 MARCH 31, 1979, ALTHOUGH THE RECORD SHOWS THAT HE WAS EMPLOYED ON
 FEBRUARY 1, 1979, AND HE TESTIFIED THAT HE WAS NOT TRANSFERRED TO THE
 GRAVE SHIFT UNTIL THE END OF MARCH OR APRIL.  FROM MR. GIBSON'S
 TESTIMONY, TR. 27-28, IT CLEARLY APPEARS THAT HE WAS ASSIGNED TO THE DAY
 SHIFT PRIOR TO HIS TRANSFER TO THE GRAVE SHIFT ON MARCH 25.  OF
 EMPLOYEES WHO TESTIFIED, THE RECORD SHOWED A PRACTICE BY RESPONDENT TO
 START EMPLOYEES ON THE DAY SHIFT;  ACCORDINGLY, AS MR. MILUS TESTIFIED,
 WITHOUT CONTRADICTION, THAT MR. GIBSON WAS HIS SUPERVISOR IN FEBRUARY, I
 FIND NOTHING THAT CASTS THE SLIGHTEST DOUBT ON MR. GIBSON HAVING BEEN
 MR. MILUS' SUPERVISOR IN FEBRUARY, 1979.
 
    /8/ MR. BEASLEY TESTIFIED HE RECEIVED 98;  BUT, IN CONTEXT (SEE, TR.
 108-109) IT SEEMS MORE PROBABLE THAT HE MEANT 97, I.E., THE SAME RATING
 HE HAD RECEIVED IN DECEMBER.
 
    /9/ G.C. EXHIBIT 8 SHOWS THE SWING SHIFT ROSTER ONLY FROM APRIL 1,
 1979.
 
    /10/ I SPECIFICALLY DO NOT CREDIT MR. BEASLEY'S TESTIMONY (TR.  162)
 THAT HE WORKED WITH MR. PAINTER ON A SECOND PALLET;  NOR DO I CREDIT
 EITHER MR. BEASLEY'S TESTIMONY OR MR. GIBSON'S TESTIMONY (TR. 42) THAT
 MR. PAINTER HAD CHECKED OFF ENOUGH CARGO FOR ANOTHER PALLET.  TO THE
 CONTRARY, I CREDIT MR. PAINTER'S TESTIMONY THAT "I WAS JUST WORKING IT
 UP . . .  I WAS STILL LOOKING FOR CARGO." (TR. 196).  INDEED, FROM THE
 ENTIRE RECORD INCLUDING MR.  PAINTER'S TESTIMONY, IT IS OBVIOUS THAT MR.
 PAINTER HAD DONE NO MORE THAN SET OUT A SECOND PALLET AND HAD JUST BEGUN
 LOOKING FOR CARGO.
 
    /11/ MR. GARNER IS NOT SHOWN ON THE SHIFT ROSTER AS A SUPERVISOR
 (G.C. EXH. 8);  HOWEVER, THE COMPLAINT ALLEGED THAT HE WAS A SUPERVISOR
 AND RESPONDENT'S ANSWER ADMITS THIS ALLEGATION.
 
    /12/ THE SICK ABUSE LETTER, ALSO ISSUED TO MR. BEASLEY ON MAY 12,
 1979 (G.C. EXH. 16), WAS INCORRECT AS TO THE ASSERTION OF A NEGATIVE
 LEAVE BALANCE, WHEREAS, MR. BEASLEY HAD ACCUMULATED 32 HOURS OF UNUSED
 SICK LEAVE THROUGH THE APPLICABLE PAYROLL PERIOD;  AND WAS INCORRECT AS
 TO THE NUMBER OF HOURS OF SICK LEAVE USED, 24 RATHER THAN 56 HOURS.
 
    /13/ "(C) THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
 DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR VISUAL
 FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE
 UNDER ANY OF THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO
 THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT." (29 U.S.C. 158(C)).
 
    /14/ THE INTERROGATION OF MR. MCNEELY AND MR. BUCKHEISTER, DISCUSSED
 HEREINAFTER, IS TREATED SEPARATELY HEREINAFTER.
 
    /15/ RESPONDENT STATES THAT SECTION 4.11 OF THE MASTER LABOR
 AGREEMENT BETWEEN AIR FORCE LOGISTICS COMMAND AND THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES PROVIDES:
 
    "MOREOVER, OFFICIAL TIME IS PROHIBITED FOR ANY ACTIVITY PERFORMED BY
 AN EMPLOYEE RELATING
 
    TO THE INTERNAL BUSINESS OF THE UNION (INCLUDING THE SOLICITATION OF
 MEMBERSHIP . . . "
 
    RESPONDENT'S REFERENCE TO THE MASTER AGREEMENT AS G.C. EXH. 3 IS IN
 ERROR.  RESPONDENT'S EXHIBITS 3, AND 4 WERE NOT SUPPLIED TO THE
 REPORTER.  I FULLY ACCEPT RESPONDENT'S QUOTATION OF SECTION 4.11, WHICH
 IS SUPPORTED BY THE TESTIMONY OF MR. KELLY (TR. 289), ALTHOUGH I DO NOT
 HAVE THE ACTUAL DOCUMENT.
 
    /16/ I HAVE CONSIDERED GENERAL COUNSEL'S FURTHER CONTENTION THAT MR.
 GIBSON'S REMARKS TO MR. BUCKHEISTER CREATED THE IMPRESSION OF
 SURVEILLANCE;  BUT I FIND INSUFFICIENT EVIDENCE TO WARRANT ANY SUCH
 FINDING.  ACCORDINGLY, THE ALLEGATIONS OF PARAGRAPH 5(C) OF THE
 COMPLAINT ARE DISMISSED.  NO EVIDENCE WAS PRESENTED IN SUPPORT OF
 PARAGRAPH 5(D) OF THE COMPLAINT, AND, THEREFORE, THE ALLEGATIONS OF
 PARAGRAPH 5(D) OF THE COMPLAINT ARE, ALSO, DISMISSED.
 
    /17/ I AM FULLY AWARE THAT ARTICLE XXV, OF THE LOCAL AGREEMENT (G.C.
 EXH. 2) CONTAINS PROVISIONS FOR RESOLUTION OF DISPUTES CONCERNING
 POSITION DESCRIPTIONS.  I NEITHER CONDONE THE QUESTIONING OF WORK
 ASSIGNMENT, AS BEING OUTSIDE A POSITION DESCRIPTION, BY THE REFUSAL OF
 AN INDIVIDUAL EMPLOYEE TO PERFORM THE ASSIGNMENT, NOR IS ANYTHING
 CONTAINED HEREIN TO BE CONSTRUED AS AUTHORIZING AN EMPLOYEE TO REFUSE TO
 PERFORM WORK.  TO THE CONTRARY, ANY EMPLOYEE WHO REFUSES TO PERFORM
 WORK
 DOES SO AT HIS PERIL.  ON THE OTHER HAND, WHERE, AS HERE, THE EMPLOYER
 ALLOWS AN EMPLOYEE TO "APPEAL" THE ASSIGNMENT OF WORK AS BEING OUTSIDE
 HIS JOB, OR POSITION, DESCRIPTION, IMPOSITION OF DISCIPLINE FOR HAVING
 DONE SO, WITH THE EMPLOYER'S ACQUIESCENCE, LOSES VALIDITY AS THE REASON
 FOR THE DISCIPLINE AND WHERE, AS HERE, UNLAWFUL MOTIVATION FOR DISCHARGE
 IS SHOWN, THE CONCLUSION IS UNAVOIDABLE THAT THE DISCIPLINE WAS, AT
 LEAST IN PART, IN FURTHERANCE OF SUCH UNLAWFUL PURPOSE.  OF COURSE,
 ABSENT EVIDENCE OF UNLAWFUL PURPOSE, DISCIPLINE, HOWEVER IMPROPER WOULD
 NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
 
    GENERAL COUNSEL HAS ASSERTED THAT RESPONDENT CONDONED MR. BEASLEY'S
 REFUSAL TO PERFORM WORK ASSIGNED ON JUNE 5, 1979, BY ITS FAILURE TO
 IMPOSE DISCIPLINE UNTIL JUNE 16, 1979.  TO A DEGREE, I AGREE.  I HAVE NO
 DOUBT THAT THE FAILURE TO IMPOSE DISCIPLINE ON JUNE 5, 1979, SHOWED THAT
 NEITHER MR. GIBSON NOR MR. DECKER TREATED MR. BEASLEY'S CONDUCT AS A
 REFUSAL TO CARRY OUT AN ORDER;  BUT I DO NOT REACH THE QUESTION OF
 CONDONATION.  TO THE CONTRARY, I VIEW THIS CASE MUCH MORE NARROWLY,
 NAMELY, THAT AFTER BEASLEY ASSERTED