National Association of Government Employees, Federal Aviation Science and Technological Association (Respondent) and John Esposito (Charging Party)



[ v07 p140 ]
07:0140(21)CO
The decision of the Authority follows:


 7 FLRA No. 21
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, FEDERAL AVIATION SCIENCE
 AND TECHNOLOGICAL ASSOCIATION
 Respondent
 
 and
 
 JOHN ESPOSITO
 Charging Party
 
                                            Case No. 2-CO-1
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
 JUDGE'S DECISION AND ORDER.  THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER
 THAT THE RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER UNFAIR LABOR
 PRACTICES UNDER EXECUTIVE ORDER 11491, AS AMENDED, AS ALLEGED IN THE
 COMPLAINT, AND RECOMMENDED THE DISMISSAL OF THAT PORTION OF THE
 COMPLAINT.  THEREAFTER THE GENERAL COUNSEL FILED EXCEPTIONS TO THAT
 PORTION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER
 RECOMMENDING DISMISSAL OF PORTIONS OF THE COMPLAINT.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR
 MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 STATUTE.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE
 AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE
 AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE
 RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE
 LAW JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
 INCLUDING THE EXCEPTIONS OF THE GENERAL COUNSEL, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS AS MODIFIED HEREIN.  /1/
 
                                 ORDER /2/
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, FEDERAL AVIATION SCIENCE
 AND TECHNOLOGICAL ASSOCIATION SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) THREATENING JOHN ESPOSITO, OR ANY OTHER EMPLOYEE, THAT IT WILL
 NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE EMPLOYEE UNLESS HE
 DISCONTINUES TO CEASES HIS ACTIVITIES ON BEHALF OF THE PROFESSIONAL
 AIRWAYS SYSTEMS SPECIALISTS (PASS), OR ANY OTHER LABOR ORGANIZATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
 AND AT PLACES WHERE NOTICES TO MEMBERS AND TO EMPLOYEES OF FEDERAL
 AVIATION ADMINISTRATION, AIRWAY FACILITIES, JOHN F. KENNEDY
 INTERNATIONAL AIRPORT SECTOR ARE CUSTOMARILY POSTED, INCLUDING
 FACILITIES PROVIDED BY THE ACTIVITY TO THE NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
 ASSOCIATION, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO
 BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS THEY SHALL BE SIGNED BY THE PRESIDENT OF THE FEDERAL AVIATION
 SCIENCE AND TECHNOLOGICAL ASSOCIATION, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER.  REASONABLE STEPS
 SHALL BE TAKEN BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION TO INSURE THAT
 SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    IT IS HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND
 NOT TO BE VIOLATIVE OF EXECUTIVE ORDER 11491, AS AMENDED, BE, AND IT
 HEREBY IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                    NOTICE TO ALL MEMBERS AND EMPLOYEES
 
                                PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                AND IN ORDER TO EFFECTUATE THE POLICIES OF
 
                       CHAPTER 71 OF TITLE 5 OF THE
 
                            UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
          WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
 
    WE WILL NOT THREATEN JOHN ESPOSITO, OR ANY OTHER EMPLOYEE, THAT WE
 WILL NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE EMPLOYEE UNLESS
 HE DISCONTINUES OR CEASES HIS ACTIVITIES ON BEHALF OF THE PROFESSIONAL
 AIRWAYS SYSTEMS SPECIALISTS (PASS), OR ANY OTHER LABOR ORGANIZATION.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
                        . . . (LABOR ORGANIZATION)
 
    DATED:  . . .  BY:  . . . (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF MEMBERS OR OTHER EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS
 NOTICE OR COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 REGION II WHOSE ADDRESS IS:  ROOM 241, 26 FEDERAL PLAZA, NEW YORK, N.Y.
 10007, AND WHOSE TELEPHONE NUMBER IS:  (212) 264-4934.
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    EDWARD J. GILDEA, ESQUIRE
    FOR THE RESPONDENT
 
    JAMES E. PETRUCCI, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    RONI N. SCHNITZER, ESQUIRE
    FOR THE CHARGING PARTY
 
    BEFORE:  WILLIAM NAIMARK
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    A HEARING WAS HELD BEFORE THE UNDERSIGNED IN THE ABOVE CAPTIONED CASE
 ON MAY 16, 1980 AT NEW YORK, NY PURSUANT TO A COMPLAINT AND NOTICE OF
 HEARING ISSUED ON FEBRUARY 26, 1980 BY THE REGIONAL DIRECTOR FOR THE
 FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK, NY REGION.
 
    THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREIN
 CALLED THE ORDER).  IT IS BASED ON AN AMENDMENT CHARGE FILED ON OCTOBER
 31, 1979 BY JOHN ESPOSITO, AN INDIVIDUAL, AGAINST NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES, FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
 ASSOCIATION (HEREIN CALLED RESPONDENT OR FASTA).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTION
 19(B)(1) OF THE ORDER BY THE FOLLOWING ACTS AND CONDUCT:  (1) ON
 NOVEMBER 2, 1978 THREATENING ESPOSITO THAT IT WOULD DROP HIS PENDING
 GRIEVANCES UNLESS HE CEASED HIS ACTIVITIES ON BEHALF OF ANOTHER LABOR
 ORGANIZATION;  (2) ON NOVEMBER 30, 1978 WITHDRAWING ITS REQUEST TO
 ARBITRATE ESPOSITO'S PENDING GRIEVANCES, AND CEASING TO PROCESS SAID
 GRIEVANCES, BECAUSE ESPOSITO ENGAGED IN ACTIVITIES ON BEHALF OF ANOTHER
 LABOR ORGANIZATION.  BASED ON THE FOREGOING, IT WAS ALLEGED THAT
 RESPONDENT INTERFERED WITH, RESTRAINED OR COERCED ITS EMPLOYEES UNDER
 THE ORDER.
 
    AN ANSWER DATED MARCH 24, 1980 WAS FILED BY RESPONDENT IN WHICH IT
 DENIED THE ESSENTIAL ALLEGATIONS OF THE COMPLAINT AS WELL AS THE
 COMMISSION OF ANY UNFAIR LABOR PRACTICES.
 
    ALL PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER BRIEFS WERE FILED WITH THE
 UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN RESPONDENT UNION (FASTA) HAS BEEN,
 AND STILL IS, THE COLLECTIVE BARGAINING REPRESENTATIVE OF ALL EMPLOYEES
 OF THE AIRWAY FACILITIES DIVISION LOCATED IN THE REGIONS OF THE FEDERAL
 AVIATION ADMINISTRATION (FAA).
 
    2.  BOTH RESPONDENT AND FAA ARE PARTIES TO A WRITTEN COLLECTIVE
 BARGAINING AGREEMENT WHICH COVERS THE AFORESAID UNIT AND IS EFFECTIVE,
 BY ITS TERMS, FOR A PERIOD OF TWO YEARS FROM DECEMBER 1, 1977.
 
    3.  THE SAID AGREEMENT INCLUDES A GRIEVANCE PROCEDURE (ARTICLE 56)
 WHICH PROVIDES FOR CONSIDERATION AND SETTLEMENT OF SPECIFIED GRIEVANCES.
  ARTICLE 56 SETS FORTH A 3 STEP PROCEDURE FOR THE RESOLUTION THEREOF.
 IN THE INITIAL STEP, WHICH IS INFORMAL IN NATURE, THE GRIEVANT MAY SEEK
 RESOLUTION FROM HIS SUPERVISOR.  THE SECOND STEP AFFORDS THE GRIEVANT
 AND/OR HIS UNION REPRESENTATIVE THE OPPORTUNITY TO MEET WITH THE SECTOR
 MANAGER OR BRANCH CHIEF AND MAKE AN ORAL PRESENTATION.  IF THE UNION IS
 NOT SATISFIED WITH THE SECOND STEP DECISION, IT MAY SEEK REVIEW BY THE
 CHIEF, AIRWAY FACILITIES DIVISION, OR THE LATTER'S DESIGNEE.  WITHIN 30
 DAYS FOLLOWING THE DATE OF THE REGIONAL DECISION, THE UNION AT THE
 NATIONAL LEVEL MAY ADVISE THE FAA THAT IT DESIRES TO SUBMIT THE MATTER
 TO ARBITRATION.  /3/
 
    4.  THE CHARGING PARTY HEREIN, JOHN ESPOSITO, IS, AND HAS BEEN AT ALL
 TIMES MATERIAL HEREIN, EMPLOYED BY FAA AS AN ELECTRONIC TECHNICIAN AT
 THE JOHN F. KENNEDY INTERNATIONAL AIRPORT, JAMAICA, NEW YORK.
 
    5.  PRIOR TO ATTENDING A THREE WEEK TRAINING SESSION SCHEDULED TO
 COMMENCE ON JUNE 28, 1978 AT THE FAA ACADEMY IN OKLAHOMA CITY, OKLAHOMA,
 ESPOSITO REQUESTED USE OF POV (PRIVATELY OWNED VEHICLE) TO MAKE THE
 TRIP.  SINCE HE HAD FIVE CHILDREN, THE EMPLOYEE WANTED TO EASE HIS
 WIFE'S BURDEN AND TAKE SEVERAL YOUNGSTERS WITH HIM.  THE REQUEST WAS
 DENIED ALTHOUGH THE EMPLOYER AGREED TO REIMBURSE ESPOSITO FOR THE COST
 OF A PLANE TICKET FOR HIMSELF.
 
    6.  THEREAFTER ON JUNE 23 ESPOSITO FILED GRIEVANCE NO. 78-58 WITH HIS
 EMPLOYER PROTESTING ITS REFUSAL TO GRANT POV USE, WITH ATTENDANT
 EXPENSES, TO DRIVE TO THE TRAINING SESSION IN OKLAHOMA CITY.  HE ALLEGED
 THEREIN THAT FAA, BY ITS DENIAL, VIOLATED ARTICLE 20, SECTION 2 OF THE
 AGREEMENT /4/ BETWEEN FAA AND FASTA, AS WELL AS SECTION 13 OF THE ORDER.
  THE SAID GRIEVANCE WAS DENIED BY FAA IN A LETTER TO ESPOSITO DATED JUNE
 30.
 
    7.  DESPITE THE DENIAL TO USE POV BY MANAGEMENT, ESPOSITO DROVE HIS
 CAS WITH TWO CHILDREN TO OKLAHOMA CITY WHERE HE ARRIVED ON JUNE 27.  /5/
 HE WAS CONFRONTED WITH VARIOUS PROBLEMS AT THE MOTELS, INCLUDING
 UNPLEASANT ACCOMODATIONS AND LACK OF PROPER CARE FOR HIS YOUNGSTERS.
 AFTER TRYING TO CONTACT SUPERVISOR KRAMER WITHOUT SUCCESS, ESPOSITO LEFT
 THE TRAINING SESSION ON JUNE 28 AND DROVE BACK TO NEW YORK.  UPON
 ARRIVING THEREAT HE TELEPHONED HIS SUPERVISOR, MR. FERRY, AND RELATED
 WHAT HAD OCCURRED.  FERRY ADVISED HIM TO RETURN TO OKLAHOMA CITY,
 STATING THAT ESPOSITO WAS AWOL AND WOULD BE IN TROUBLE UNLESS HE DID SO.
  WHEREUPON THE EMPLOYEE DROVE BACK TO THE TRAINING SESSION IN OKLAHOMA.
 SINCE HE WAS ABSENT FROM THE ACADEMY ON JUNE 29 AND JUNE 30, HE WAS NOT
 PAID FOR THOSE TWO DAYS.
 
    8.  WHILE IN OKLAHOMA CITY ATTENDING THE ACADEMY, AND ON JULY 13,
 ESPOSITO JOINED THE PROFESSIONAL AIRWAYS SYSTEM SPECIALISTS (HEREIN
 CALLED PASS) WHICH ALSO REPRESENTED ELECTRONIC TECHNICIANS AT VARIOUS
 FAA LOCATIONS.  UPON HIS RETURN TO NEW YORK ESPOSITO BECAME ACTIVE ON
 BEHALF OF PASS.  HE OBTAINED SIGNATURES ON PETITIONS FOR REPRESENTATION,
 SPOKE TO EMPLOYEES ON BEHALF OF THIS UNION, AND DISTRIBUTED LITERATURE
 THROUGHOUT THE AGENCY.  MANAGEMENT TOLD ESPOSITO TO REMOVE THEM FROM
 MAILSLOTS SINCE IT WAS CONCERNED WITH THE CLUTTER OF CIRCULARS.
 
    9.  SHORTLY THEREAFTER IN THE MIDDLE OF JULY, RALPH LOPEZ, WHO IS
 REPRESENTATIVE OF FASTA FOR BOTH THE JFK AIRPORT SECTOR AND THE EASTERN
 REGION, VISITED ESPOSITO AT HIS HOME.  THE UNION REPRESENTATIVE TOLD THE
 EMPLOYEE THAT IF HE WANTED HIS GRIEVANCE TO GO TO ARBITRATION, HE MUST
 JOIN FASTA.  /6/ ESPOSITO TESTIFIED, AND I FIND, THAT HE INFORMED LOPEZ
 OF HIS AFFILIATION WITH PASS;  THAT WHILE THE UNION AGENT DID NOT VOICE
 ANY OPPOSITION, HE DID INDICATE THAT HE PREFERRED THE EMPLOYEE WOULD
 BELONG SOLELY TO FASTA.  WHEREUPON ESPOSITO SIGNED AN APPLICATION FORM
 TO JOIN RESPONDENT UNION.
 
    10.  ESPOSITO FILED GRIEVANCE NO. 78-65 WITH FAA ON AUGUST 1
 PROTESTING THE DECISION BY MANAGEMENT THAT HE WAS CHARGED WITH BEING
 AWOL FOR TWO DAYS (JUNE 29 & 30).  THE GRIEVANT ALLEGED THAT ARTICLES 19
 (SECTION 1), 20 (SECTION 2), AND 41 (SECTIONS 5 AND 6) OF THE COLLECTIVE
 BARGAINING AGREEMENT WERE VIOLATED BY THE EMPLOYER.  /7/ THIS GRIEVANCE
 WAS DENIED BY FAA IN A LETTER DATED AUGUST 8.  THE DENIAL WAS REVOKED ON
 AUGUST 14 SINCE ESPOSITO HAD NOT BEEN AFFORDED AN OPPORTUNITY TO PRESENT
 HIS CASE ORALLY.  SUBSEQUENTLY ON AUGUST 17 GRIEVANCE NO.  78-65 WAS
 DENIED AGAIN ON THE GROUND THAT ESPOSITO HAD NOT RECEIVED AUTHORIZATION
 TO LEAVE THE ACADEMY IN OKLAHOMA AND RETURN TO NEW YORK.
 
    11.  A LETTER OF REPRIMAND DATED AUGUST 14 WAS ISSUED BY FAA TO
 ESPOSITO FOR HAVING LEFT HIS DUTY STATION ON JUNE 29 AND 30, AND THE
 EMPLOYEE WAS ADVISED THE LETTER WOULD BE PUT IN HIS PERSONNEL FILE.
 
    12.  A THIRD GRIEVANCE WAS FILED BY ESPOSITO AGAINST FAA ON SEPTEMBER
 2, DESIGNATED AS NO. 78-84, CLAIMING THAT THE REPRIMAND WAS IMPROPER AND
 ILLEGAL.  THE GRIEVANT ALSO REITERATED HIS PROTESTS RE MANAGEMENT'S
 REFUSAL TO ALLOW USE OF POV AS WELL AS PLACING HIM ON AWOL FOR TWO DAYS.
  THE GRIEVANCE RECITED THAT ARTICLE 17 (SECTION 1) OF THE AGREEMENT, AS
 WELL AS THOSE ARTICLES MENTIONED IN THE TWO PREVIOUS GRIEVANCES, WERE
 VIOLATED BY THE EMPLOYER.  THIS GRIEVANCE WAS DENIED BY FAA IN A LETTER
 DATED SEPTEMBER 22.
 
    13.  THE RECORD REFLECTS THAT LOPEZ, AS SECTOR REPRESENTATIVE,
 HANDLES GRIEVANCES UP TO THE THIRD STEP OF THE GRIEVANCE PROCEDURE AND
 PRIOR TO THEIR SUBMISSION TO ARBITRATION.  HE ARGUES THE GRIEVANCE OR
 TRIES TO RESOLVE IT WITH THE SECTOR MANAGER.  WHEN THE GRIEVANCE GOES
 BEYOND THE SECTOR LEVEL, LOPEZ HAS NO FURTHER ROLE IN PROCESSING IT
 EXCEPT TO FORWARD SAME TO THE REGIONAL PRESIDENT.  THOMAS TOMCHECK,
 REGIONAL PRESIDENT OF FASTA'S EASTERN REGION, GENERALLY MEETS WITH THE
 REGIONAL DIRECTOR OF THE AGENCY AND ARGUES THE GRIEVANCE ON BEHALF OF
 THE GRIEVANT WHO MAY, AT TIMES, GIVE AN ORAL PRESENTATION.  EITHER THE
 SECTOR REPRESENTATIVE OR THE REGIONAL REPRESENTATIVE MAY RECOMMEND
 ARBITRATION OF THE GRIEVANCE.  THE FINAL DECISION AS TO SEEKING
 ARBITRATION RESTS WITH STANLEY A. LYMAN, EXECUTIVE VICE-PRESIDENT OF
 RESPONDENT AND THE FASTA COUNCIL.
 
    14.  IN RESPECT TO THE THREE GRIEVANCES FILED BY ESPOSITO AGAINST
 FAA, LOPEZ REPRESENTED THE EMPLOYEE DURING DISCUSSIONS WITH THE
 EMPLOYER.  THE UNION OFFICIAL ACCOMPANIED ESPOSITO ON AT LEAST ONE
 OCCASION DURING INFORMAL MEETINGS WITH MANAGEMENT AND WAS IN ATTENDANCE
 DURING DISCUSSIONS RE THE THIRD GRIEVANCE.  /8/
 
    15.  IN ACCORDANCE WITH HIS USUAL PROCEDURE, LOPEZ FORWARDED TO THE
 NATIONAL OFFICE OF RESPONDENT THE ENTIRE PACKAGE DEALING WITH ESPOSITO'S
 GRIEVANCES.  THE PACKAGE INCLUDED THE GRIEVANCES TOGETHER WITH ALL
 LETTERS OR REPLIES FROM MANAGEMENT.  FURTHER, AS IS CUSTOMARY, LOPEZ
 RECOMMENDED THAT THE NATIONAL UNION REVIEW THE GRIEVANCES AND GO
 FORWARD
 TO ARBITRATION.
 
    16.  THE RECORD REFLECTS THAT UPON RECEIPT OF A GRIEVANCE PACKAGE
 FROM THE REGIONAL REPRESENTATIVE, STANLEY A. LYMAN, EXECUTIVE
 VICE-PRESIDENT OF RESPONDENT USUALLY REQUESTS ARBITRATION IN ADVANCE OF
 ANY THOROUGH REVIEW OF THE MERITS OF A GRIEVANCE.  HE FOLLOWS THIS
 PROCEDURE IN ORDER TO PROTECT THE TIMELINESS OF SUBMISSIONS FOR
 ARBITRATION.
 
    17.  BY LETTER DATED AUGUST 24, LYMAN WROTE EDWARD V. CURRAN,
 DIRECTOR OF LABOR RELATIONS OF FAA IN WASHINGTON, REQUESTING THAT
 GRIEVANCE NO. 78-58 BE SUBMITTED TO ARBITRATION PURSUANT TO ARTICLE 56,
 SECTION 5 OF THE COLLECTIVE BARGAINING AGREEMENT SINCE THE REGIONAL
 RESPONSE TO THIS GRIEVANCE WAS DEEMED BY THE UNION TO BE UNSATISFACTORY.
  SIMILAR LETTERS WERE WRITTEN BY LYMAN REQUESTING ARBITRATION IN RESPECT
 TO GRIEVANCES NO. 78-65 AND NO. 78-84 ON SEPTEMBER 12 AND NOVEMBER 13
 RESPECTIVELY.
 
    18.  ON NOVEMBER 2 LOPEZ APPROACHED ESPOSITO WHO WAS STANDING IN THE
 COFFEE AREA IN THE TOWER BUILDING TALKING TO EMPLOYEE THOMAS DUFFY.
 RECORD FACTS DISCLOSE THE UNION OFFICIAL STATED HE JUST LEARNED THAT
 ESPOSITO WAS TRYING TO SIGN UP EMPLOYEES TO JOIN PASS;  THAT ESPOSITO
 SHOULD EITHER STOP GATHERING SIGNATURES AND CEASE HIS ACTIVITIES ON
 BEHALF OF PASS OR LOPEZ WOULD HAVE THE EMPLOYEE'S GRIEVANCES DROPPED.
 WHEN ESPOSITO RETORTED THAT HE WANTED TO REMAIN WITH PASS AND HOPED
 LOPEZ WOULD NOT TAKE SUCH ACTION, THE LATTER REPLIED HE WOULD CALL
 TOMCHECK AND HAVE THE GRIEVANCES DROPPED BECAUSE OF ESPOSITO'S
 ACTIVITIES ON BEHALF OF PASS.  FOLLOWING THIS CONVERSATION, THE UNION
 AGENT MADE A TELEPHONE CALL WHICH WAS WITNESSED, BUT NOT OVERHEARD, BY
 DUFFY AND EMPLOYEE JAMES MANTA.  /9/
 
    19.  LYMAN TESTIFIED HE DID NOT KNOW ESPOSITO WAS A MEMBER OF PASS
 ALTHOUGH HE WAS AWARE OF THE FACT THAT SAID UNION WAS ORGANIZING IN THE
 EAST.  RESPONDENT'S VICE-PRESIDENT STATED THAT LOPEZ DID NOT TELL HIM TO
 DROP ESPOSITO'S GRIEVANCES AND WITHDRAW THEM FROM ARBITRATION.  HE
 TESTIFIED THAT THE LEGAL STAFF OF THE NATIONAL UNION CONCLUDED THERE WAS
 NO MERIT TO THE GRIEVANCES, AND LYMAN WROTE LOPEZ TO THE EFFECT THAT THE
 LEGAL STAFF HAD ADVISED THERE WAS NO BASIS FOR SUBMITTING ESPOSITO'S
 GRIEVANCES TO ARBITRATION;  THAT, BY REASON OF SUCH ADVICE, LYMAN WOULD
 NOT SUBMIT THESE GRIEVANCES TO ARBITRATION.
 
    20.  IN A LETTER DATED NOVEMBER 30 LYMAN WROTE CURRAN STATING THAT
 AFTER FURTHER REVIEWING GRIEVANCES 78-58, 65 AND 84, THE UNION DESIRED
 TO WITHDRAW THE REQUEST THAT THEY BE HEARD BY AN ARBITRATOR.  NO
 NOTIFICATION WAS SENT TO ESPOSITO RE ITS WITHDRAWAL OF THE GRIEVANCES
 FROM ARBITRATION.
 
    21.  THE RECORD INDICATES THAT IN 1978 RESPONDENT UNION REQUESTED
 ARBITRATION OF 300-400 GRIEVANCES, AND APPROXIMATELY 3%-5% WERE
 ARBITRATED. THE REMAINDER THEREOF WERE WITHDRAWN.
 
                                CONCLUSIONS
 
    THE ISSUES PRESENTED HEREIN FOR DETERMINATION ARE SIMPLY STATED:
 WHETHER RESPONDENT VIOLATED SECTION 19(B)(1) OF THE ORDER BY (1)
 THREATENING EMPLOYEE ESPOSITO TO CEASE PROCESSING HIS GRIEVANCES UNLESS
 HE DISCONTINUED HIS ACTIVITIES ON BEHALF OF ANOTHER LABOR ORGANIZATION,
 (2) WITHDRAWING ITS REQUEST TO ARBITRATE ESPOSITO'S GRIEVANCES AFTER THE
 UNION HAD PREVIOUSLY SUBMITTED THEM FOR ARBITRATION.
 
    (1) IT IS PROVIDED UNDER SECTION 19(B)(1) OF THE ORDER THAT A LABOR
 ORGANIZATION SHALL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
 THE EXERCISE OF THEIR RIGHTS UNDER THE ORDER.  THIS PARTICULAR PROVISION
 HAS BEEN DEEMED TO ACCORD PROTECTION TO AN EMPLOYEE IN THE FILING OF
 GRIEVANCES AS WELL AS HIS UNION ACTIVITIES.  THUS, COERCIVE OR
 INTIMIDATING STATEMENTS WHICH SUGGEST ADVERSE CONSEQUENCES TO AN
 EMPLOYEE IN SEEKING ASSISTANCE TO FILE A GRIEVANCE WAS HELD VIOLATIVE OF
 10(A)(1) OF THE ORDER.  FEDERAL AVIATION ADMINISTRATION, AIRWAYS
 FACILITIES SECTOR, TAMPA, FLA., A/SLMR NO. 725.  IN THE CITED CASE
 MANAGEMENT IMPLIED TO AN EMPLOYEE THAT IF THE LATTER DROPPED A PENDING
 GRIEVANCE, CERTAIN PROMOTIONAL OPPORTUNITIES WOULD BE IN THE OFFING.
 THE ASSISTANT SECRETARY FOUND SUCH STATEMENTS TO AN EMPLOYEE TO BE CLEAR
 INTERFERENCE AND COERCION BY THE EMPLOYER.  MOREOVER, SUCH REMARKS WILL
 NECESSARILY DISCOURAGE EMPLOYEES FROM INITIATING AND FILING GRIEVANCES.
 SEE FAA, AIR TRAFFIC CONTROL TOWER ET AL., A/SLMR NO. 920.
 
    FURTHER, IT IS APPARENT THAT THREATS OF THIS NATURE WHICH EMANATE
 FROM THE BARGAINING REPRESENTATIVE TO EMPLOYEES ARE LIKEWISE COERCIVE.
 IT IS NO LESS AN INTERFERENCE WITH THE RIGHTS OF AN EMPLOYEE TO GRIEVE
 UNDER THE CONTRACT WHEN THE UNION ATTEMPTS TO THWART THE EMPLOYEE IN
 THIS REGARD.  THE INDIVIDUAL IS ALSO ENTITLED TO BE FREE FROM RESTRAINT
 OR DISCOURAGEMENT AT THE HANDS OF HIS BARGAINING REPRESENTATIVE WHEN
 PURSUING A GRIEVANCE.  WHILE RESPONDENT MAINTAINS OTHERWISE, I HAVE
 CONCLUDED THAT UNION REPRESENTATIVE LOPEZ DID TELL ESPOSITO ON NOVEMBER
 2 THAT HIS GRIEVANCES WOULD NOT BE PROCESSED UNLESS HE CEASED ACTIVITIES
 ON BEHALF OF PASS.  THIS REMARK IS INHERENTLY COERCIVE, INTERFERES WITH
 THE RIGHT OF ESPOSITO TO PURSUE HIS GRIEVANCES, AND TENDS TO DISCOURAGE
 THE EMPLOYEE IN THE EXERCISE OF HIS RIGHTS UNDER THE ORDER.
 ACCORDINGLY, I FIND THAT RESPONDENT, BY SUCH CONDUCT, VIOLATED SECTION
 19(B)(1) THEREOF.
 
    (2) IT IS ALSO ESTABLISHED BOTH IN THE PRIVATE AND PUBLIC SECTORS
 THAT AN EXCLUSIVE BARGAINING REPRESENTATIVE HAS AN OBLIGATION TO FAIRLY
 REPRESENT UNIT EMPLOYEES.  THIS DUTY ENCOMPASSES GOOD FAITH
 REPRESENTATION IN THE PROCESSING OF GRIEVANCES THROUGH ARBITRATION.
 COMMUNICATION WORKERS OF AMERICA, AFL-CIO (PACIFIC NORTHWEST BELL
 TELEPHONE CO.), 205 NLRB 940;  LOCAL R7-51, NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES (NAGE), A/SLMR NO. 896.  NEVERTHELESS, THIS
 RESPONSIBILITY ON THE PART OF THE EXCLUSIVE REPRESENTATIVE DOES NOT
 PROVIDE EMPLOYEES WITH AN ABSOLUTE RIGHT TO HAVE EVERY GRIEVANCE
 PROCESSED ON THEIR BEHALF BY THE LABOR ORGANIZATION.  SEE U.S.
 DEPARTMENT OF THE NAVY, NAVAL ORDINANCE SYSTEM, LOUISVILLE, KY, A/SLMR
 NO. 400 AT FOOTNOTE 5.  THE DUTY TO PROVIDE FAIR REPRESENTATION IS
 BREACHED ONLY WHEN THE CONDUCT OF THE REPRESENTATIVE IS ARBITRARY,
 DISCRIMINATORY OR IN BAD FAITH.  THUS, AS THE SUPREME COURT STATED IN
 VACA V. SIPES, 368 U.S. 171(1967) A UNION MAY REFUSE TO REQUEST
 ARBITRATION OF AN EMPLOYEE'S GRIEVANCE WHERE IT ACTS IN GOOD FAITH AND
 DETERMINES THAT SUCH PROCEDURE WOULD BE FRUITLESS.  THE COURT ECHOED THE
 DOCTRINE THAT WHILE THE REPRESENTATIVE MAY NOT IGNORE A MERITORIOUS
 GRIEVANCE, THE EMPLOYEE HAS NO ABSOLUTE RIGHT TO HAVE HIS GRIEVANCE
 TAKEN TO ARBITRATION.
 
    UPON CAREFUL CONSIDERATION OF THE RECORD HEREIN, I AM PERSUADED THAT
 THE REFUSAL BY RESPONDENT TO REQUEST ARBITRATION OF ESPOSITO'S
 GRIEVANCES WAS NOT BOTTOMED UPON DISCRIMINATORY MOTIVATION.  IT DOES NOT
 APPEAR THAT NATIONAL REPRESENTATIVE LYMAN WAS AWARE OF ESPOSITO'S
 ACTIVITIES ON BEHALF OF PASS.  NEITHER DOES THE RECORD REFLECT THAT
 LOPEZ COMMUNICATED WITH LYMAN AND INFORMED HIM OF SUCH ACTIVITIES.
 WHILE GENERAL COUNSEL SUGGESTS AN INFERENCE MAY BE DRAWN THAT THE LOCAL
 REPRESENTATIVE INSTIGATED THE WITHDRAWAL OF THE GRIEVANCES FROM
 ARBITRATION, I AM UNABLE TO SO INFER FROM THE STATE OF THE RECORD
 HEREIN.  THERE IS AMPLE EVIDENCE TO SUPPORT THE DETERMINATION MADE BY
 THE RESPONDENT'S LEGAL STAFF THAT THE GRIEVANCES LACKED MERIT.  AT THE
 TIME ESPOSITO ATTENDED THE SUMMER SESSION IN OKLAHOMA CITY, THE EMPLOYER
 HAD NOT AGREED TO A PROVISION WHICH PERMITTED EMPLOYEES TO USE A
 PRIVATELY OWNED VEHICLE TO ATTEND MEETINGS.  THUS, THIS EMPLOYEE HAD
 USED HIS OWN CAR WITHOUT AUTHORIZATION AND DID, IN TRUTH, MISS TWO DAYS
 FROM THE SESSION WITHOUT PERMISSION.  ACCORDINGLY, A REASONABLE BASIS
 PREVAILED FOR THE DISCIPLINE OF ESPOSITO.  THEREFORE, THE BARGAINING
 REPRESENTATIVE ACTED REASONABLY IN REFUSING TO PROCESS THE GRIEVANCE
 THROUGH ARBITRATION IN THE FACE OF SUCH UNAUTHORIZED ACTIONS BY THIS
 EMPLOYEE.
 
    WHILE IT IS TRUE THE RESPONDENT SUBMITTED THE GRIEVANCES TO
 ARBITRATION AT THE OUTSET, RECORD FACTS SHOW LYMAN DID SO IN ORDER TO
 ASSURE TIMELY SUBMISSION UNDER THE CONTRACT.  FURTHER, THERE IS
 TESTIMONY THAT, DESPITE THE NUMBER OF GRIEVANCES SUBMITTED EACH YEAR BY
 RESPONDENT, A VERY SMALL PERCENTAGE RESULTED IN ARBITRATION SINCE MOST
 GRIEVANCES WERE WITHDRAWN.  NOTE MUST BE TAKEN THAT THE RECORD IS BARREN
 OF EVIDENCE INDICATING THAT RESPONDENT PROSECUTED GRIEVANCES UNDER
 SIMILAR CIRCUMSTANCES IN THE PAST BUT REFUSED TO DO SO ON BEHALF OF
 ESPOSITO.  IN FINDING NO VIOLATION BY A UNION FOR FAILING TO PROCESS A
 GRIEVANCE OF AN EMPLOYEE, THE NATIONAL LABOR RELATIONS BOARD TOOK SUCH A
 FACTOR INTO CONSIDERATION IN LOCAL 1268 UAW (CHRYSLER CORP.), 193 NLRB
 898.
 
    BASED ON THE FOREGOING, I AM PERSUADED GENERAL COUNSEL FAILED TO
 ESTABLISH THAT RESPONDENT ACTED ARBITRARILY OR IN BAD FAITH WHEN IT
 WITHDREW ESPOSITO'S GRIEVANCES FROM ARBITRATION.  CONSIDERABLE LATITUDE
 MUST, I CONCLUDE, BE AFFORDED A BARGAINING REPRESENTATIVE IN ASSESSING
 THE MERITS OF A GRIEVANCE.  IN THE ABSENCE OF A SHOWING THAT
 REPRESENTATION WAS NOT ACCORDED AN EMPLOYEE BECAUSE OF DISCRIMINATORY
 REASONS, A UNION MAY NOT BE CHARGED WITH COMMITTING AN UNFAIR LABOR
 PRACTICE.  NO SUCH SHOWING IS EVIDENT IN THE CASE AT BAR AND THEREFORE I
 FIND THAT RESPONDENT DID NOT VIOLATE SECTION 19(B)(1) BY REASON OF ITS
 REFUSAL TO SUBMIT ESPOSITO'S GRIEVANCES TO ARBITRATION.
 
    HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(B)(1) OF THE
 ORDER BY REFUSING OR FAILING TO REQUEST ARBITRATION OF JOHN ESPOSITO'S
 GRIEVANCES BECAUSE OF HIS ACTIVITIES ON BEHALF OF ANOTHER LABOR
 ORGANIZATION, I RECOMMEND DISMISSAL OF THIS ALLEGATION IN THE COMPLAINT
 HEREIN.  HAVING FOUND THAT RESPONDENT VIOLATED SECTION 19(B)(1) OF THE
 ORDER BY REASON OF THREATENING TO DISCONTINUE PROCESSING JOHN ESPOSITO'S
 GRIEVANCES UNLESS HE DISCONTINUED HIS ACTIVITIES ON BEHALF OF ANOTHER
 LABOR ORGANIZATION.  I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING
 ORDER.
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
 IS HEREBY ORDERED THAT THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) THREATENING JOHN ESPOSITO, OR ANY OTHER EMPLOYEE, THAT IT WILL
 NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE EMPLOYEE UNLESS HE
 DISCONTINUES OR CEASES HIS ACTIVITIES ON BEHALF OF PROFESSIONAL AIRWAYS
 SYSTEM SPECIALISTS (PASS), OR ANY OTHER LABOR ORGANIZATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
 
    2.  TAKE THE FOLLOWING ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND
 POLICIES OF THE ACT.  /10/
 
    (A) POST AT THE BULLETIN BOARDS PROVIDED FOR THE POSTING OF UNION
 MATERIAL BY THE FEDERAL AVIATION ADMINISTRATION, AIRWAY FACILITIES, JOHN
 F. KENNEDY INTERNATIONAL AIRPORT COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" TO BE FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS
 THEY SHALL BE SIGNED BY