Department of the Treasury, Customs Service, Region IV, Miami, Florida (Respondent) and National Treasury Employees Union (Charging Party) 



[ v08 p561 ]
08:0561(109)CA
The decision of the Authority follows:


 8 FLRA No. 109
 
 DEPARTMENT OF THE TREASURY
 UNITED STATES CUSTOMS SERVICE
 REGION IV
 MIAMI, FLORIDA
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES
 UNION
 Charging Party
 
                                            Case No. 4-CA-442
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT
 IT CEASE AND DESIST THEREFROM AND MAKE CERTAIN AFFIRMATIVE ACTIONS.  NO
 EXCEPTIONS WERE FILED.
 
    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
 ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE
 OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
 AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF THE TREASURY, UNITED
 STATES CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA SHALL:
 
    (1) CEASE AND DESIST FROM:
 
    (A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY COUNSELING
 ALBERT MARCANTONIO, OR OTHER REPRESENTATIVE OF THE NATIONAL TREASURY
 EMPLOYEES UNION AS REPRISAL OR RETALIATION FOR ASSISTING BARGAINING UNIT
 EMPLOYEES IN THE PRESENTATION OF A COMPLAINT OR GRIEVANCE AGAINST THE
 RESPONDENT.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    (2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) REMOVE OR EXPUNGE FROM ITS FILES THE FIRST AND THIRD PARAGRAPHS
 OF THE MARCH 30, 1980 RECORD OF COUNSELING EXECUTED BY CHIEF INSPECTOR
 BOBBIE R. PEACOCK IN CONNECTION WITH HIS MARCH 30, 1980 COUNSELING OF
 ALBERT MARCANTONIO.
 
    (B) POST AT ALL UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI,
 FLORIDA FACILITIES AND INSTALLATIONS 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 REGIONAL COMMISSIONER
 AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER,
 IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
 WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE REGIONAL
 COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION IV, FEDERAL LABOR
 RELATIONS AUTHORITY, SUITE 501, 1776 PEACHTREE STREET, N.W., NORTH WING,
 ATLANTA, GEORGIA 30309 IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., MAY 13, 1982
 
                       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 OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
              RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 COUNSELING ALBERT MARCANTONIO, OR OTHER REPRESENTATIVE OF THE NATIONAL
 TREASURY EMPLOYEES UNION AS REPRISAL OR RETALIATION FOR ASSISTING
 BARGAINING UNIT EMPLOYEES IN THE PRESENTATION OF A COMPLAINT OR
 GRIEVANCE AGAINST THE RESPONDENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL REMOVE OR EXPUNGE FROM OUR FILES THE FIRST AND THIRD
 PARAGRAPHS OF THE MARCH 30, 1980 RECORD OF COUNSELING EXECUTED BY CHIEF
 INSPECTOR BOBBIE R. PEACOCK IN CONNECTION WITH HIS MARCH 30, 1980
 COUNSELING OF ALBERT MARCANTONIO.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:
 
    BY:  (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIALS.  IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
 WHOSE ADDRESS IS:  SUITE 501, 1776 PEACHTREE STREET, N.W., NORTH WING,
 ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS :  (404) 881-2324.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    MARC L. BARBAKOFF, ESQUIRE
                            FOR THE RESPONDENT
 
    BRENDA S. GREEN, ESQUIRE
    MATHILDE L. GENOVESE, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  LOUIS SCALZO
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
 PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
 STAT. 1191, 5 U.S.C.  7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
 AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
 
    THE COMPLAINT, AS AMENDED, ALLEGED THAT ON MARCH 30, 1980, THE
 RESPONDENT, THROUGH BOBBIE R. PEACOCK, CHIEF INSPECTOR (CI), PORT OF
 ATLANTA, ATLANTA, GEORGIA, /1/ VIOLATED SECTIONS 7116(A)(1) AND (2) OF
 THE STATUTE BY COUNSELING, AND FILING A RECORD OF COUNSELING, OF ALBERT
 MARCANTONIO, A CUSTOMS INSPECTOR ASSIGNED TO THE PORT OF ATLANTA, AND
 WHO WAS THEN SERVING AS PRESIDENT OF CHAPTER 177, OF THE NATIONAL
 TREASURY EMPLOYEES UNION (HEREINAFTER CALLED "THE UNION" AND "CHARGING
 PARTY").  IT WAS ALLEGED THAT THE COUNSELING RELATED TO A MARCH 29, 1980
 COMPLAINT MADE BY MARCANTONIO THAT TOO MANY PASSENGERS WERE BEING SENT
 TO SECONDARY INSPECTION LINES.  /2/
 
    THE RESPONDENT ADMITS THAT CI PEACOCK PARTICIPATED IN THE MARCH 30,
 1980 COUNSELING SESSION, BUT DENIES VIOLATING SECTION S 7116(A)(1) AND
 (2).  RESPONDENT ALSO DEFENDS BY ASSERTING THAT MARCANTONIO WAS
 COUNSELED FOR LEGITIMATE MANAGERIAL PURPOSES.
 
    IN THE POST-HEARING BRIEF FILED BY COUNSEL FOR THE RESPONDENT AN
 ATTEMPT IS MADE TO "RENEW" MOTIONS MADE ON BEHALF OF THE RESPONDENT
 PRIOR TO AND AT THE OPENING OF THE HEARING.  THESE MOTIONS WERE DENIED
 (TR. 16-23).  /3/ THE POST-HEARING BRIEF SETS FORTH NOTHING NEW
 REGARDING ISSUES RELATING TO THE MENTIONED MOTIONS, AND PROVIDES NO
 BASIS FOR RECONSIDERATION OF DENIALS ENTERED INTO THE RECORD.
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
 CROSS-EXAMINE WITNESSES.  POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
 REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
 RESPONDENT.  THESE HAVE BEEN DULY CONSIDERED.  BASED UPON THE ENTIRE
 RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE WITNESSES AND THEIR
 DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
 HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATION:
 
                              FINDING OF FACT
 
    ROLE OF INSPECTOR MARCANTONIO
 
    THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF CUSTOMS
 INSPECTORS EMPLOYED AT THE PORT OF ATLANTA, ATLANTA, GEORGIA.  INSPECTOR
 MARCANTONIO HAS HELD THE POSITION OF PRESIDENT OF CHAPTER 177 OF THE
 UNION FOR NEARLY TWO YEARS.  AS PRESIDENT HE IS THE CHIEF SPOKESMAN FOR
 THE BARGAINING UNIT.  HIS DUTIES INVOLVE PROCESSING AND PRESENTING
 WRITTEN AND ORAL BARGAINING UNIT COMPLAINTS TO MANAGEMENT OFFICIALS
 EMPLOYED BY THE RESPONDENT (TR. 36-37, 208).
 
    COUNSEL REPRESENTING THE RESPONDENT STIPULATED THAT PEACOCK KNEW THAT
 MARCANTONIO WAS THE PRESIDENT OF THE UNION (TR. 33), AND THAT HE WAS
 VERY ACTIVE AS A UNION OFFICER (TR. 50).  HOWEVER, SPECIFIC
 REPRESENTATION WORK PERFORMED BY MARCANTONIO WILL BE DESCRIBED IN DETAIL
 IN ORDER TO DEVELOP THE FACTUAL SITUATION PRESENTED PRIOR TO THE
 COUNSELING SESSION UNDERLYING ALLEGATIONS IN THE COMPLAINT.
 
    THE RECORD ESTABLISHED THAT MARCANTONIO HAD WRITTEN TO MEMBERS OF
 CONGRESS IN HIS CAPACITY AS A UNION OFFICER IN AN EFFORT TO RESOLVE
 COMPLAINTS;  THAT HE DEALT OFTEN WITH CI PEACOCK AND OTHER HIGHER
 MANAGEMENT OFFICIALS IN THE CUSTOMS SERVICE IN CONNECTION WITH UNION
 BUSINESS;  THAT HE HAD, AS A UNION OFFICIAL, COMPLAINED THAT PEACOCK AND
 PORT DIRECTOR KENNETH ANDERBERG WERE THE SOURCE OF MORALE PROBLEM AT
 THE
 PORT OF ATLANTA;  THAT MARCANTONIO WAS DEEPLY INVOLVED IN FEBRUARY 1980
 NEGOTIATIONS LEADING TO EFFECTUATION OF A POLICY CHANGE ON MARCH 3,
 1980, WHEREBY CI PEACOCK'S AUTHORITY TO SCHEDULE OVERTIME FOR CUSTOMS
 INSPECTORS WAS LIMITED SUBSTANTIALLY;  THAT ON MARCH 26, 1980 HE
 REQUESTED THAT THE PORT DIRECTOR NEGOTIATE CONCERNING A "TACTICAL
 ENFORCEMENT TEAM," AND THAT ON MARCH 27, 1980, THE POST DIRECTOR
 ACKNOWLEDGED THE REQUEST AND AGREED TO NEGOTIATE;  THAT HE HAD RECRUITED
 UNION MEMBERS;  AND THAT HE CONDUCTED UNION MEETINGS AS NEEDED.  IT WAS
 MARCANTONIO'S PRACTICE TO ADVISE MANAGEMENT WHEN HE WAS SPEAKING IN A
 PERSONAL AS DISTINCT FROM A REPRESENTATIVE CAPACITY (TR. 134-135).
 
    ON MARCH 29, 1980. THE DAY ON WHICH EVENTS LEADING UP TO THE
 COUNSELING OCCURRED, AND PRIOR TO SUCH EVENTS, MARCANTONIO MET WITH CI
 PEACOCK CONCERNING CERTAIN COMPLAINTS RELATING TO THE SUBJECT OF
 OVERTIME WORK (TR. 68-69).  ON MARCH 30, 1980, PRIOR TO THE COUNSELING
 SESSION, MARCANTONIO AGAIN, IN HIS CAPACITY AS THE UNION'S SPOKESMAN,
 CONVERSED WITH PEACOCK CONCERNING A DISPUTE RELATING TO AN OVERTIME
 CLAIM (TR. 69-70.) /4/
 
    DUTIES OF CUSTOMS INSPECTORS OUTLINED
 
    MARCANTONIO'S DUTIES AS A CUSTOMS INSPECTOR INCLUDED THE INSPECTION
 OF PASSENGERS AND LUGGAGE AT THE DELTA INTERNATIONAL ARRIVAL BUILDING
 (DIAB) IN THE PORT OF ATLANTA.  THE CUSTOMS SERVICE UTILIZES THE CUSTOMS
 ACCELERATED PASSENGER INSPECTION SYSTEM (CAPIS) AT THIS FACILITY, AND
 HAS DONE SO SINCE ABOUT MAY OF 1978.  A NUMBER OF CONFIGURATIONS OF
 CAPIS ARE USED BY THE CUSTOMS SERVICE.  ALL INVOLVE THE EMPLOYMENT OF
 PRIMARY INSPECTORS AND SECONDARY INSPECTORS.  AT THE DIAB THE SERVICE
 USES MODULES WITH TWO PRIMARY INSPECTORS AND TWO SECONDARY INSPECTORS.
 EACH SECONDARY INSPECTOR IS LOCATED DIRECTLY BEHIND A PRIMARY INSPECTOR,
 AND THEY ARE USUALLY SEPARATED BY DISTANCES OF ABOUT EIGHT TO
 TWENTY-FIVE FEET.  VISUAL CONTACT OF THE SECONDARY INSPECTOR BY THE
 PRIMARY INSPECTOR IS POSSIBLE IF THE PRIMARY INSPECTOR TURNS AROUND TO
 OBSERVE THE SECONDARY INSPECTOR (TR. 191).
 
    PASSENGERS ARE FIRST DIRECTED TO PRIMARY INSPECTORS WHO EXAMINE THEIR
 DOCUMENTS (PASSPORT, DECLARATION AND AIRLINE TICKET), AND MAKE AN
 INITIAL CUSTOMS EXAMINATION.  PRIMARY INSPECTION MAY COMPLETE THE
 INSPECTION PROCESS ENTIRELY, OR REFER THE PASSENGER BACK TO A SECONDARY
 INSPECTOR FOR MORE DETAILED PROCESSING AS APPROPRIATE.  IN SUCH CASES
 THE PRIMARY INSPECTOR CODES PASSENGER DECLARATIONS TO OWING, POSSESSION
 OF AGRICULTURAL PRODUCTS, SUSPICIOUS APPEARANCE, OR OTHER REASON
 WARRANTING A MORE INTENSIVE SEARCH).  THE SECONDARY INSPECTOR THEN
 COMPLETES THE PROCESSING OF THE PASSENGER.  UNDER CAPIS THE PRIMARY
 INSPECTOR HAS AUTHORITY TO REFER PASSENGERS BACK FOR INITIAL PROCESSING
 IF A SECONDARY INSPECTOR IS NOT OTHERWISE ENGAGED IN THE INSPECTION
 PROCESS.  IF THE SECONDARY INSPECTOR HAS A PROBLEM ON HIS LINE, THE
 PRIMARY INSPECTOR WOULD NOT BE AUTHORIZED TO REFER PASSENGERS BACK FOR
 INITIAL INSPECTION WORK (TR. 279).  ORDINARILY, THERE IS COMMUNICATION
 BETWEEN PRIMARY AND SECONDARY INSPECTORS IN ORDER TO EXPEDITE THE
 INSPECTION PROCESS.
 
    IT WAS ESTABLISHED THAT THE PRIMARY INSPECTOR HAS AUTHORITY TO REFER
 PASSENGERS TO A SECONDARY INSPECTOR FOR THE REASONS OUTLINED, BUT THE
 SECONDARY HAS NO AUTHORITY TO REFER THEM BACK TO THE PRIMARY INSPECTOR
 (TR. 146-147).  THAT IS, THE PRIMARY INSPECTOR HAS THE AUTHORITY TO
 CONTROL THE WORKFLOW (TR. 147, 247-249).  THE TESTIMONY OF SUPERVISORY
 CUSTOMS INSPECTOR (SCI) RICHARD HORTON ESTABLISHED THAT A PRIMARY
 INSPECTOR COULD OVERLOAD A SECONDARY INSPECTOR, AND THAT THE PRIMARY
 INSPECTOR SHOULD BE VISUALLY OBSERVING THE WORKFLOW TO INSURE THAT
 SECONDARY INSPECTORS ARE NOT SENT TOO MANY PASSENGERS TO PROCESS (TR.
 386-387).  HE ALSO ESTABLISHED THAT THE PRIMARY AND SECONDARY INSPECTORS
 WERE PAID AT THE SAME GRADE LEVEL, AND THAT IT WOULD BE HIS FUNCTION TO
 SPEAK TO A PRIMARY INSPECTOR WHO WAS KNOWINGLY SENDING TOO MANY
 PASSENGERS TO A SECONDARY INSPECTOR FOR PROCESSING (TR. 389).
 
    DUTIES PERFORMED UNDER CAPIS AT THE RESPONDENT'S ATLANTA LOCATION ARE
 SUPERVISED BY CI PEACOCK, AND FIRST LINE SCI'S HORTON AND ROBERT J.
 COWAN.  THESE THREE ARE IN TURN SUPERVISED BY KENNETH A. ANDERBERG,
 DIRECTOR, OF THE PORT OF ATLANTA.  PEACOCK'S TESTIMONY ESTABLISHED THAT
 HE IS RESPONSIBLE FOR BEING AWARE OF WORK ACTIVITY BEING DIRECTLY
 SUPERVISED BY HORTON AND COWAN, AND THAT HE IS OFTEN PRESENT DURING THE
 PROCESSING OF PASSENGERS (TR. 170, 190).
 
    OVERLOADING OF SECONDARY INSPECTORS REPORTED TO SCI HORTON AND TO
 INSPECTOR MARCANTONIO
 
    IN FEBRUARY OR MARCH OF 1980, PRIOR TO EVENTS LEADING TO THE
 COUNSELING SESSION, CUSTOMS INSPECTOR JACK BROOKS REPORTED TO SCI HORTON
 THAT CUSTOMS INSPECTOR PATRICIA MCCANTS, WHILE ACTING AS A PRIMARY
 INSPECTOR, IMPROPERLY REFERRED TOO MANY PASSENGERS TO HIM FOR INITIAL
 INSPECTION WHEN HE WAS ACTING IN A SECONDARY POSITION (TR. 182-183,
 194).  THIS CAUSED CONGESTION IN HIS LINE (TR. 203).  HE WAS INSTRUCTED
 BY HORTON TO DISCUSS THE MATTER WITH MCCANTS.  HE DID SO, BUT WAS UNABLE
 TO OBTAIN HER COOPERATION (TR. 183, 187).  BROOKS REPORTED HIS FAILURE
 TO OBTAIN COOPERATION TO THE UNION THROUGH MARCANTONIO BECAUSE HE WAS
 UNABLE TO RESOLVE THE ISSUE BY TALKING TO HORTON AND MCCANTS (TR.
 183-184, 189-190).  BROOKS CONTINUED TO HAVE SIMILAR PROBLEMS WITH
 MCCANTS AFTER HIS MEETING WITH HER (TR. 190).
 
    DURING THE SAME TIME PERIOD CUSTOMS INSPECTOR BETH CRAIG EXPERIENCED
 A PASSENGER FLOODING OF HER SECONDARY POSITION AS A RESULT OF REFERRALS
 FROM MCCANTS' PRIMARY INSPECTION POSITION (TR. 209).  SHE COMPLAINED TO
 HORTON, WHO RESPONDED BY EXPLAINING IN GENERAL TERMS HOW THE CAPIS
 PROCEDURE WAS DESIGNED TO FUNCTION (TR. 361-362).  HORTON DID NOT ADVISE
 CRAIG TO COMMUNICATE WITH MCCANTS ABOUT THE PROBLEM (TR. 389).  INSTEAD,
 HORTON TOOK THE INITIATIVE AFTER RECEIVING CRAIG'S COMMENTS AND SPOKE
 DIRECTLY TO MCCANTS THAT SAME DAY FOR THE PURPOSE OF RELAYING CRAIG'S
 COMPLAINT (TR. 389).  /5/ CRAIG ALSO REPORTED THE PROBLEM TO MARCANTONIO
 BECAUSE HE WAS THE UNION PRESIDENT AND SHE DID NOT FEEL THAT SHE COULD
 DO A SATISFACTORY JOB IN THE SECONDARY POSITION IF MCCANTS REFERRED TOO
 MANY PASSENGERS TO THE SECONDARY POSITION (TR. 210).
 
    IN ADDITION TO COMPLAINTS RECEIVED FROM CRAIG AND BROOKS RELATIVE TO
 THE METHOD USED BY MCCANTS TO REFER PASSENGERS TO SECONDARY INSPECTORS,
 MARCANTONIO RECEIVED A SIMILAR COMPLAINT FROM CUSTOMS INSPECTOR ROGER
 MOYER, AND ALSO OTHER EARLIER COMPLAINTS OF THIS SAME NATURE (TR.
 62-63).
 
    INSPECTOR MARCANTONIO REPORTS COMPLAINT RELATING TO OVERLOADING
 SECONDARY INSPECTORS
 
    SOMETIME IN FEBRUARY OF 1980 MARCANTONIO REPORTED TO SCI COWAN,
 DETAILS OF BARGAINING UNIT MEMBER COMPLAINTS WHICH HE HAD RECEIVED TO
 THE EFFECT THAT MCCANTS WAS OVERLOADING SECONDARY INSPECTORS (TR.
 65-66).  MARCANTONIO WAS NOT INSTRUCTED TO COMMUNICATE WITH MCCANTS
 CONCERNING THE PROBLEM (TR. 110).  SCI COWAN'S TESTIMONY WAS EXTREMELY
 VAGUE;  HOWEVER, HE FREELY ACKNOWLEDGED RECEIPT OF SUCH INFORMATION FROM
 MARCANTONIO PRIOR TO EVENTS RELATING TO THE COUNSELING, AND THE FACT
 THAT HE ADVISED MARCANTONIO THAT HE (COWAN) "WOULD TAKE CARE OF IT," AND
 FURTHER THAT HE "WOULD TALK TO (MCCANTS) ABOUT." (TR. 331).  HIS
 TESTIMONY ALSO ESTABLISHED THAT HE DID IN FACT SPEAK TO MCCANTS ABOUT
 THE PROBLEM (TR. 334, 344-345).  /6/
 
    EVENTS RELATING TO COUNSELING OF INSPECTOR MARCANTONIO
 
    ON MARCH 29, 1980, THE INCIDENT GIVING RISE TO THE COUNSELING SESSION
 OCCURRED.  WHILE MARCANTONIO WAS WORKING A CAPIS MODULE ON A SECONDARY
 POSITION DIRECTLY BEHIND MCCANTS, A NUMBER OF PASSENGERS WERE REFERRED
 TO MARCANTONIO BY MCCANTS CAUSING MARCANTONIO'S LINE TO BECOME CONGESTED
 (TR. 66-67).  MARCANTONIO SUMMONED SCI HORTON OVER TO HIS POSITION, AND
 COMPLAINED TO SCI COWAN (TR. 67).  CI PEACOCK WAS PRESENT AT THE TIME
 MARCANTONIO COMPLAINED (TR. 67, 119).  /7/ MARCANTONIO'S SECONDARY
 POSITION WAS THEN ABOUT TEN FEET AWAY FROM MCCANTS, AND SHE COULD HAVE
 EASILY OBSERVED MARCANTONIO'S WORK SITUATION (TR. 302-303).
 
    IN RESPONSE TO MARCANTONIO'S COMPLAINT, HORTON AND PEACOCK EXPLAINED
 TO MARCANTONIO IN GENERAL TERMS THE NEED FOR PRIMARY AND SECONDARY
 INSPECTORS TO COOPERATE AND COMMUNICATE WITH ONE ANOTHER (TR. 67, 297),
 AND ALSO, SUGGESTED THAT MARCANTONIO DISCUSS THE MATTER WITH MCCANTS
 (TR. 117-118).  /8/ IT WAS ESTABLISHED THAT PEACOCK WAS NOT PERSONALLY
 AWARE OF THE FACTS RELATING TO MCCANTS' REFERRAL OF PASSENGERS TO
 MARCANTONIO;  HOWEVER, HE RECOGNIZED THAT MARCANTONIO COULD HAVE BEEN
 FACING A PROBLEM WARRANTING SUPERVISORY ATTENTION (TR. 306, 309-310).
 
    MARCANTONIO EXPLAINED THAT HE (MARCANTONIO) WAS NOT SUPERVISOR, THAT
 HE AND MCCANTS WERE BOTH JOURNEYMEN INSPECTORS, THAT HE HAD NO AUTHORITY
 OVER MCCANTS, AND THAT IT WAS A MATTER FOR A SUPERVISOR TO HANDLE (TR.
 66-67, 118).  PEACOCK AND HORTON CONTINUED TO EXPLAIN THAT CAPIS
 REQUIRED COMMUNICATION BETWEEN PRIMARY AND SECONDARY INSPECTORS.
 MARCANTONIO DID NOT RESPOND TO THE SUGGESTION BECAUSE HE HAD PREVIOUSLY
 DISCUSSED THE MATTER WITH COWAN AND COWAN SAID HE WOULD ATTEND TO THE
 PROBLEM;  BECAUSE MCCANTS HAD BEEN UNRESPONSIVE IN THE PAST;  BECAUSE HE
 FELT THAT HORTON WAS AWARE OF THE PROBLEM AS A RESULT OF PRIOR
 COMPLAINTS;  BECAUSE HE FELT SUCH AN EFFORT WOULD BE FUTILE;  AND
 BECAUSE HE WAS OF THE OPINION THAT ONLY A SUPERVISOR COULD PROVIDE A
 REMEDY (TR. 138-140).  PRIOR TO COMPLETION OF THE DISCUSSION PEACOCK
 LEFT HORTON AND MARCANTONIO AS THEY CONTINUED TO DISCUSS THE MATTER (TR.
 297).
 
    ON MARCH 30, 1980, AFTER MARCANTONIO HAD A DISCUSSION WITH PEACOCK
 CONCERNING THE OVERTIME QUESTION, PEACOCK ANNOUNCED THAT HE WAS GOING TO
 COUNSEL MARCANTONIO CONCERNING TWO INCIDENTS WHICH HAD OCCURRED ON THE
 PREVIOUS DAY, THAT IS, THE FAILURE TO MEET AN INCOMING FLIGHT AND THE
 MARCH 29, 1980 DISCUSSION THAT HORTON AND PEACOCK HAD WITH MARCANTONIO
 CONCERNING MCCANTS' REFERRAL OF TOO MANY PASSENGERS TO MARCANTONIO
 WHILE
 HE WAS FUNCTIONING AS A SECONDARY INSPECTOR.  WITH RESPECT TO THE LATER
 PORTION OF THE COUNSELING, THE ONLY ELEMENT PLACED IN ISSUE IN THIS
 CASE, PEACOCK PREPARED A MEMORANDUM FOR MARCANTONIO'S PERSONNEL FILE.
 IT INCLUDED THE FOLLOWING:
 
    3/30/80 . . . IN THE PRESENCE OF SCI COWAN I COUNSELED INSPECTOR
 MARCANTONIO REGARDING THE
 
    INCIDENT AT THE DELTA IAB RE:  HIS COMPLAINT THAT INSPECTOR MCCANTS
 WAS PUTTING TOO MANY
 
    PASSENGERS ON HIS SECONDARY COUNTER AND HIS INABILITY TO COMMUNICATE
 WITH HER.  I EXPLAINED TO
 
    MARCANTONIO HOW WE WANTED THE COUNTERS TO OPERATE.  I EXPLAINED THAT
 THEY WERE DESIGNED TO
 
    MOVE PASSENGERS THAT WE DID NOT WANT TO SEE AND TO TAKE AS MUCH TIME
 AS WE WANTED WITH THOSE
 
    THAT WE WANTED TO SEE AND IF A SECONDARY INSPECTOR WAS TIED UP WITH A
 PASSENGER IT WAS HIS
 
    RESPONSIBILITY TO NOTIFY THE PRIMARY INSPECTOR . . .
 
    THE RECORD DISCLOSED THAT SCI COWAN WAS PRESENT AS A WITNESS
 THROUGHOUT THE COUNSELING (TR. 283-284,347), AND FURTHER THAT COWAN WAS
 AWARE OF WHAT WAS OCCURRING (TR. 349).  IN A SOMEWHAT ANGRY VOICE (TR.
 71, 168), CI PEACOCK INFORMED MARCANTONIO THAT HIS RELUCTANCE TO
 COMMUNICATE WITH MCCANTS REGARDING HER REFERRAL OF AN EXCESSIVE NUMBER
 OF PASSENGERS TO HIS POSITION WAS AN INDICATION OF A FAILURE TO
 UNDERSTAND CAPIS PROCEDURES;  THAT COOPERATION AND COMMUNICATION
 BETWEEN
 PRIMARY AND SECONDARY INSPECTORS WERE ESSENTIAL AND THAT THE FAILURE ON
 MARCANTONIO'S PART TO PERCEIVE AN OBLIGATION TO COMMUNICATE WITH MCCANTS
 EXHIBITED INADEQUATE PERFORMANCE ON HIS PART (TR. 329).
 
    MARCANTONIO EXPLAINED THAT HE HAD, AS UNION PRESIDENT, PREVIOUSLY
 RAISED THE MATTER WITH SCI COWAN (TR. 70).  HE THEN TURNED TO COWAN AND
 REQUESTED HIM TO VERIFY THE PRIOR CONVERSATION WHEREIN MARCANTONIO HAD
 COMPLAINED ON BEHALF OF OTHER INSPECTORS (TR. 70, 125).  COWAN
 ACKNOWLEDGED IN PEACOCK'S PRESENCE THAT MARCANTONIO HAD PREVIOUSLY
 RAISED THE SUBJECT WITH HIM (TR. 70, 125).  MARCANTONIO ALSO ASKED "HOW
 MANY TIMES CAN (RESPONDENT) BE TOLD ABOUT A SITUATION AND BY HOW MANY
 INDIVIDUALS." (TR. 54).  PEACOCK ACKNOWLEDGED THAT DURING THE COUNSELING
 MARCANTONIO AGAIN INFORMED HIM THAT OTHER INSPECTORS HAD COMPLAINED
 ABOUT MCCANTS "STACKING UP THE LINES." (TR. 169).  HE ALSO ADMITTED THAT
 HE WOULD HAVE CONSIDERED RECEIPT OF A NUMBER OF COMPLAINTS A SERIOUS
 PROBLEM WARRANTING HIS INTERVENTION (TR.  171-172).  /9/
 
    PEACOCK'S TESTIMONY ESTABLISHED THAT HE FELT MARCANTONIO'S
 SHORTCOMING TO BE A "SERIOUS MATTER" (TR. 288-289), AND FURTHER THAT
 MARCANTONIO'S CONDUCT COULD HAVE BEEN CONSTRUED AS "POOR PERFORMANCE OF
 HIS DUTY OR UNSUBORDINATION OR A DISCIPLINARY TYPE MATTER." (TR. 287).
 HOWEVER, AT THE SAME TIME HE ADMITTED THAT AT THE TIME OF THE COUNSELING
 HE STILL DID NOT KNOW WHAT HAD HAPPENED AFTER HE LEFT HORTON AND
 MARCANTONIO ON DECEMBER 29TH (TR. 297-298);  THAT HE DID NOT INVESTIGATE
 THE FACTS SURROUNDING THE ALLEGATIONS AGAINST MCCANTS, ALTHOUGH HE
 ORDINARILY DID SO BEFORE COUNSELING EMPLOYEES;  AND THAT MCCANTS'
 CONDUCT COULD HAVE PRESENTED A SPECIAL PROBLEM OBVIATING THE NEED FOR
 ANY EFFORT ON MARCANTONIO'S PART (TR. 307-309).  PEACOCK ALSO
 ACKNOWLEDGED THAT HE DID NOT ASK FOR MARCANTONIO'S SIDE OF THE STORY
 PRIOR TO COUNSELING HIM (TR. 311).
 
    IT WAS ESTABLISHED THAT IF EMPLOYEE BEHAVIOR AT RESPONDENT'S ACTIVITY
 IS DEEMED A "SERIOUS" PROBLEM AND COUNSELING OCCURS, A REPORT IS
 PREPARED AND RETAINED IN THE EMPLOYEE'S PERSONNEL FILE (TR. 162).  ONLY
 RECORDATIONS OF "SERIOUS COUNSELING" ARE FILED.  IN THIS CASE CI PEACOCK
 CAUSED THE RECORD OF THE COUNSELING TO BE FILED IN MARCANTONIO'S
 PERSONNEL FILE.  /10/ PERSONNEL FILES ARE REGULARLY USED FOR PURPOSES OF
 WORK APPRAISALS, PROMOTIONS, AWARDS, AND DISCIPLINARY ACTION (TR. 162).
 
    CIRCUMSTANCES RELATING TO EVALUATION OF INSPECTOR MARCANTONIO'S WORK
 PERFORMANCE
 
    THE RECORD DISCLOSED THAT INSPECTOR MARCANTONIO WORKED WITH THE
 CUSTOMS SERVICE FOR SEVEN YEARS, THE LAST TWO YEARS OF WHICH HE WAS
 ASSIGNED TO THE PORT OF ATLANTA (TR. 35-36, 79).  HE HAS WORKED ON CAPIS
 MODULES SINCE THE PROCEDURE WAS INTRODUCED IN MID 1978 (TR.  269), OR
 FOR A PERIOD OF ABOUT TWO YEARS (TR. 62).  CI PEACOCK'S TESTIMONY
 CLEARLY ESTABLISHED THAT RESPONDENT'S REPRESENTATIVES RECEIVED NO
 EVIDENCE THAT MARCANTONIO DID NOT UNDERSTAND THE CAPIS PROCEDURES PRIOR
 TO MARCH 29, 1980, AND THAT NO PRIOR FAILURE TO COMMUNICATE WAS EVER
 OBSERVED OR NOTED (TR. 269-270).  PRIOR TO MARCH 30, 1980, MARCANTONIO
 HAD NEVER BEEN COUNSELED FOR A FAILURE TO COMMUNICATE OR FOR FAILURE TO
 WORK CAPIS PROPERLY (TR. 131, 168).  CI PEACOCK STATED THAT HE NEVER HAD
 ANY PRIOR PROBLEM WITH MARCANTONIO BEFORE THE INCIDENT IN QUESTION, AND
 THAT HE NEVER HAD TO MAKE A RECORD OF THIS NATURE FOR HIS PERSONNEL FILE
 (TR. 169).
 
    APPROXIMATELY THREE WEEKS AFTER THE MARCH 30, 1980 COUNSELING, SCI'S
 COWAN AND HORTON AND CI PEACOCK COMPLETED AN APPRAISAL OF MARCANTONIO'S
 PERFORMANCE FOR A ONE YEAR PERIOD WHICH INCLUDED MARCH 29-30, 1980 (G.C.
 EXH. 9).  IT REFLECTED NO REFERENCE TO MARCANTONIO'S FAILURE TO
 COMMUNICATE, NOR WAS HE DOWNGRADED IN ANY WAY FOR THE ALLEGED
 MISCONDUCT.  IN WORK APPRAISAL CATEGORIES RELATING TO ADAPTABILITY,
 QUALITY OF WORK, AND TACT, HE RECEIVED A "5," THE HIGHEST POSSIBLE
 GRADE, WHICH INDICATED THAT HE EXCELLED IN EVERY SITUATION RELEVANT TO
 THESE FACTORS.  HE WAS RATED AT THE "4" LEVEL, OR THE NEXT HIGHEST
 LEVEL, IN CATEGORIES RELATING TO ATTITUDE, RESPONSIBILITY, JOB
 KNOWLEDGE, WORK PRODUCTION, LEARNING ABILITY, ORAL COMMUNICATION AND
 KNOWLEDGE OF CUSTOMS.  THE "4" LEVEL INDICATED THAT HE DEMONSTRATED
 ABILITY TO A DEGREE CLEARLY ABOVE THAT EXPECTED FOR COMPETENCE.  /11/
 THE RECORD REFLECTED THAT MARCANTONIO WAS ALSO GIVEN A WITHIN GRADE
 INCREASE IN PAY SHORTLY AFTER THE MARCH 29-30, 1980 PERIOD (R. EXH. 7).
 CI PEACOCK SIGNED THE AUTHORIZATION ON BEHALF OF THE RESPONDENT.
 
                        DISCUSSION AND CONCLUSIONS
 
    IN ORDER TO ESTABLISH A VIOLATION OF SECTION 7116(A)(2) THERE MUST BE
 A SHOWING THAT THE ALLEGED DISCRIMINATEE WAS ENGAGING IN PROTECTED
 ACTIVITY, THAT THE RESPONDENT HAD KNOWLEDGE OF SUCH ACTIVITY, AND THAT
 THE RESPONDENT TOOK ACTION AGAINST THE DISCRIMINATEE BECAUSE OF
 ANTI-UNION ANIMUS.  UNITED STATES DEPARTMENT OF LABOR, 1 FLRA NO. 120
 (SEPTEMBER 28, 1979);  VETERANS ADMINISTRATION CENTER, LEAVENWORTH,
 KANSAS, 1 FLRA NO. 111 (SEPTEMBER 20, 1979);  U.S. CUSTOMS SERVICE,
 REGION IV, MIAMI, FLORIDA, 1 FLRA NO. 108 (SEPTEMBER 13, 1979).  THE
 ELEMENT OF DISCRIMINATORY MOTIVATION NEEDED TO ESTABLISH A SECTION
 7116(A)(2) VIOLATION MAY BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE.  U.S.
 CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, SUPRA;  VETERANS
 ADMINISTRATION CENTER, LEAVENWORTH, KANSAS, SUPRA.
 
    IN THIS CASE THE EPISODE GIVING RISE TO THE COUNSELING IN ISSUE AROSE
 DIRECTLY OUT OF INSPECTOR MARCANTONIO'S EFFORTS AS A UNION OFFICIAL
 REPRESENTING BARGAINING UNIT MEMBERS.  IN FEBRUARY OF 1980 HE INTERPOSED
 A COMPLAINT RELATING TO MCCANTS' REPEATED REFERRAL OF AN EXCESSIVE
 NUMBER OF PASSENGERS TO SECONDARY INSPECTORS.  HIS MENTION OF THE MATTER
 OF MARCH 29, 1980 TO CI PEACOCK AND SCI HORTON WAS MERELY A REITERATION
 OF HIS EARLIER COMPLAINT.  ALTHOUGH THE INITIAL COMPLAINT WAS LODGED
 WITH SCI COWAN, THE RECORD REFLECTS THAT SIMILAR COMPLAINTS HAD BEEN
 LODGED WITH SCI HORTON BY OTHER BARGAINING UNIT MEMBERS, AND THAT ON
 MARCH 30, 1980 SCI COWAN AND CI PEACOCK ACTED JOINTLY DURING THE
 COUNSELING OF MARCANTONIO.  THUS, THE RECORD MAKES IT CLEAR THAT
 MARCANTONIO WAS ENGAGING IN PROTECTED UNION ACTIVITY WHEN HE DISCUSSED
 THE SUBJECT WITH CI PEACOCK AND SCI HORTON ON MARCH 29, 1980, AND WHEN
 HE DISCUSSED IT AGAIN WITH CI PEACOCK AND SCI COWAN ON MARCH 30, 1980.
 
    OTHER ELEMENTS IN THE RECORD INDICATE THAT THE RESPONDENT'S
 REPRESENTATIVES WOULD HAVE HAD TO BE AWARE OF MARCANTONIO'S ROLE IN
 EFFORTS TO REMEDY COMPLAINTS AGAINST MCCANTS.  THE NATURE OF
 MARCANTONIO'S UNION ACTIVITY GENERALLY WAS WELL KNOWN, AND INVOLVED
 CONTACTS WITH CI PEACOCK ON MARCH 29 AND 30, 1980, PRIOR TO DISCUSSION
 OF THE PROBLEM RELATING TO INSPECTOR MCCANTS.  ALTHOUG4 UNNECESSARY TO
 RELY UPON INFERENCES JUSTIFYING A FINDING THAT SCI COWAN ACTUALLY
 APPRISED CI PEACOCK OF MARCANTONIO'S PRIOR COMPLAINT BEFORE MARCH 29,
 1980, SCI COWAN'S TESTIMONY GIVES RISE TO THE POSSIBILITY.  MOREOVER, IT
 WAS CLEARLY CI PEACOCK'S DUTY TO BE AWARE OF PROBLEMS OF THIS NATURE,
 AND CI PEACOCK WAS OFTEN IN THE WORK AREA WHERE CAPIS PROCEDURES WERE
 BEING UTILIZED.
 
    MARCANTONIO'S ACT OF INVITING ATTENTION TO THE PROBLEM POSED BY
 MCCANTS' CONDUCT PRECIPITATED A PATTERN OF ADMINISTRATIVE ACTION IN
 OPPOSITION TO HIS BRINGING THE MATTER TO THE ATTENTION OF THE
 RESPONDENT.  A CAREFUL REVIEW OF THE RECORD DISCLOSES NUMEROUS REASONS
 FOR CONCLUDING THAT THE BASIS FOR CI PEACOCK'S DECISION TO COUNSEL
 MARCANTONIO WAS PRETEXTUAL IN NATURE.  ALTHOUGH INSPECTOR MARCANTONIO
 WAS CRITICIZED FOR FAILING TO COMMUNICATE WITH MCCANTS, SCI COWAN AND
 SCI HORTON HAD BOTH PREVIOUSLY DEEMED THE PROBLEM TO BE OF SUFFICIENT
 IMPORTANCE TO JUSTIFY THEIR OWN DIRECT PERSONAL INTERVENTION.  THIS WAS
 MANIFESTED BY THEM SPEAKING TO MCCANTS ABOUT THE MATTER.  IT WAS BROUGHT
 OUT THAT ONLY A SHORT DISTANCE SEPARATED THE PRIMARY AND SECONDARY
 INSPECTORS, AND THAT MCCANTS WOULD HAVE, AT LEAST IN THE CAPIS MODULE
 INVOLVED HERE, BEEN IN A POSITION TO OBSERVE THAT SECONDARY INSPECTORS
 WERE BEING REFERRED TOO MANY PASSENGERS.  THUS THE NEED FOR
 COMMUNICATION IN THIS INSTANCE WAS AT LEAST GROSSLY EXAGGERATED ON
 NON-EXISTENT.
 
    THE NATURE OF AUTHORITY CONFERRED UPON PRIMARY INSPECTORS BY THE
 RESPONDENT INDICATED THAT THEY, AND NOT SECONDARY INSPECTORS, WERE
 PERMITTED TO CONTROL THE WORKFLOW, AND THAT IT WAS THEIR TASK TO MAKE
 CERTAIN THAT SECONDARIES WERE NOT OVERBURDENED.  FURTHER, THE SECONDARY
 INSPECTORS WERE OF THE SAME GRADE LEVEL AS THE PRIMARY INSPECTORS, AND
 WERE NOT AUTHORIZED TO BECOME INVOLVED IN CASES WHEREIN A PRIMARY
 INSPECTOR KNOWINGLY WAS ACTING IMPROPERLY.  THE RECORD HERE REFLECTS AN
 ABUNDANCE OF EVIDENCE THAT SUCH WAS IN FACT THE CASE, AND FURTHER THAT
 RESPONDENT'S REPRESENTATIVES HAD IN FACT TRIED TO REMEDY THE PROBLEM
 BEFORE MARCH 29TH.
 
    EVIDENCE OF THE PRETEXTUAL BASIS FOR THE COUNSELING INVOLVED IS ALSO
 REFLECTED BY PEACOCK'S UNUSUAL FAILURE TO GATHER FACTS ABOUT THE MATTER
 BEFORE COUNSELING MARCANTONIO, ALTHOUGH HE REGULARLY DID SO IN SUCH
 CASES;  BY HIS OWN ADMISSION THAT MARCANTONIO COULD POSSIBLY HAVE BEEN
 FACING A PROBLEM FALLING WITHIN PEACOCK'S SUPERVISORY PURVIEW;  AND BY
 THE SUBSEQUENT HIGH PERFORMANCE RATING RECEIVED BY MARCANTONIO DESPITE
 PEACOCK'S PROTESTATIONS THAT MARCANTONIO'S SHORTCOMINGS WERE SERIOUS IN
 NATURE.
 
    BASED UPON THE KNOWLEDGE OF INSPECTOR MARCANTONIO'S UNION ACTIVITY,
 THE TIMING OF ADMINISTRATIVE ACTION TAKEN AGAINST HIM, AND THE LACK OF
 ANY CREDIBLE AND PERSUASIVE REASON THEREFOR, IT IS, DETERMINED THAT CI
 PEACOCK'S COUNSELING OF INSPECTOR MARCANTONIO WAS MOTIVATED SOLELY BY
 ANTI-UNION CONSIDERATIONS AND TAKEN AS A REPRISAL AND RETALIATION FOR
 HIS UNION ACTIVITY.  ACCORDINGLY, IT IS DETERMINED THAT THE CONDUCT OF
 CI PEACOCK CONSTITUTES A VIOLATION OF SECTION 7116(A)(2) OF THE STATUTE.
  SINCE ANY VIOLATION OF SECTION 7116(A) OTHER THAN SECTION 7116(A)(1),
 NECESSARILY TENDS TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
 THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE, THE CONDUCT
 DESCRIBED IS ALSO A VIOLATION OF SECTION 7116(A)(1).
 
    HAVING FOUND THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (2)
 IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY COUNSELING
 ALBERT MARCANTONIO, OR
 
    OTHER REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION AS
 REPRISAL OR RETALIATION FOR
 
    ASSISTING BARGAINING UNIT EMPLOYEES IN THE PRESENTATION OF A
 COMPLAINT OR GRIEVANCE AGAINST
 
    THE RESPONDENT.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN
 
    THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) REMOVE OR EXPUNGE FROM ITS FILES THE FIRST AND THIRD PARAGRAPHS
 OF THE MARCH 30, 1980
 
    RECORD OF COUNSELING EXECUTED BY CHIEF INSPECTOR BOBBIE R.  PEACOCK
 IN CONNECTION WITH HIS
 
    MARCH 30, 1980 COUNSELING OF ALBERT MARCANTONIO.
 
    (B) POST AT ALL UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI,
 FLORIDA FACILITIES AND
 
    INSTALLATIONS 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
 
    REGIONAL COMMISSIONER AND SHALL BE POSTED AND MAINTAINED FOR 60
 CONSECUTIVE DAYS THEREAFTER,
 
    IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
 WHERE NOTICES TO
 
    EMPLOYEES ARE CUSTOMARILY POSTED.  THE REGIONAL COMMISSIONER SHALL
 TAKE REASONABLE STEPS TO
 
    INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
 OTHER MATERIAL.
 
    (C) NOTIFY THE 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.
 
                         LOUIS SCALZO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 10, 1981
    WASHINGTON, D.C.
 
 
         APPENDIX NOTICE TO ALL EMPLOYEES A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
              RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 COUNSELING ALBERT MARCANTONIO, OR OTHER REPRESENTATIVE OF THE NATIONAL
 TREASURY EMPLOYEES UNION AS REPRISAL OR RETALIATION FOR ASSISTING
 BARGAINING UNIT EMPLOYEES IN THE PRESENTATION OF A COMPLAINT OR
 GRIEVANCE AGAINST THE RESPONDENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE OUR EMPLOYEES IN THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL REMOVE OR EXPUNGE FROM OUR FILES THE FIRST AND THIRD
 PARAGRAPHS OF THE MARCH 30, 1980 RECORD OF COUNSELING EXECUTED BY CHIEF
 INSPECTOR BOBBIE R. PEACOCK IN CONNECTION WITH HIS MARCH 30, 1980
 COUNSELING OF ALBERT MARCANTONIO.
 
                           (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
 MATERIALS.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  SUITE 501, 1776 PEACHTREE STREET, N.W., NORTH WING,
 ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS:  (404) 881-2324.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE EVENTS OCCURRING HEREIN RELATE TO ACTIVITY AT RESPONDENT'S
 ATLANTA, GEORGIA LOCATION IN REGION IV.
 
    /2/ DURING THE SAME COUNSELING SESSION MARCANTONIO WAS ALSO
 CRITICIZED FOR FAILURE TO MEET AN INCOMING FLIGHT FOR THE PURPOSE OF
 PERFORMING INSPECTION DUTIES.  HOWEVER, COUNSEL FOR THE GENERAL COUNSEL
 DOES NOT QUESTION THIS ELEMENT OF RESPONDENT'S ADMINISTRATIVE ACTION AND
 SEEKS NO REMEDY REGARDING THIS FACET OF THE COUNSELING (TR. 32, 78-79).
 
    /3/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
 ," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. EXH.  " OR "R.
 EXH.  ."
 
    /4/ PEACOCK TESTIFIED THAT HE WAS UNABLE TO RECALL THE MARCH 29 AND
 30, 1980 CONVERSATIONS RELATING TO UNION BUSINESS.  HOWEVER, WITH REGARD
 TO THE MARCH 29TH CONVERSATION, HE ACKNOWLEDGED THAT IT COULD HAVE
 OCCURRED (TR. 159-160).
 
    /5/ HORTON EXPLAINED THAT HE DID NOT FEEL THAT CRAIG SHOULD HAVE BEEN
 COUNSELED FOR NOT COMMUNICATING HER COMPLAINT DIRECTLY TO MCCANTS
 BECAUSE CRAIG WAS A NEW CUSTOMS INSPECTOR (TR. 374).  HOWEVER, AS NOTED,
 HORTON DID NOT INSTRUCT CRAIG TO COMMUNICATE WITH MCCANTS, AND FURTHER
 HE DETERMINED THAT IT WAS A MATTER OF SUFFICIENT CONCERN TO WARRANT HIS
 OWN INTERVENTION AS A SUPERVISOR.  THUS, HORTON'S TESTIMONY THAT CRAIG
 WAS INVOLVED IN POSSIBLE MISCONDUCT STEMMING FROM A FAILURE TO
 COMMUNICATE WITH MCCANTS IN THIS SITUATION IS DEEMED DISCREDITED BY
 PEACOCK'S OWN TESTIMONY.
 
    /6/ HE NOTED THAT THIS WAS APPROPRIATE BECAUSE MARCANTONIO WAS
 OTHERWISE ENGAGED AND THAT IT WOULD HAVE BEEN DISRUPTIVE TO THE
 INSPECTION PROCEDURE IF MARCANTONIO WERE ALLOWED TO LEAVE HIS SECONDARY
 POSITION TO SPEAK TO MCCANTS (TR. 333-334, 351).  HOWEVER, IT ALSO
 APPEARED THAT HE DEEMED IT A MATTER OF SUPERVISORY CONCERN (TR. 345,
 348).
 
    /7/ PEACOCK ACKNOWLEDGED THAT HE WAS THEN AWARE THAT MARCANTONIO WAS
 THE PRESIDENT OF THE UNION (TR. 287).
 
    /8/ ALTHOUGH CI PEACOCK'S RECORD OF THE MARCH 29, 1980 CONVERSATION
 INDICATES THAT HORTON "ADVISED" MARCANTONIO TO COMMUNICATE DIRECTLY WITH
 MCCANTS (G.C. EXH.  8), THE RECORD