09:0199(31)CA - Federal Mediation and Conciliation Service and NAGE Local R3-118 -- 1982 FLRAdec CA



[ v09 p199 ]
09:0199(31)CA
The decision of the Authority follows:


 9 FLRA No. 31
 
 FEDERAL MEDIATION AND CONCILIATION
 SERVICE
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R3-118
 Charging Party
 
                                            Case No. 3-CA-818
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.  THE GENERAL COUNSEL
 FILED EXCEPTIONS TO THE JUDGE'S DECISION, AND THE RESPONDENT FILED AN
 OPPOSITION THERETO.
 
    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 DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-818 BE, AND
 IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., JUNE 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    FEDERAL MEDIATION AND CONCILIATION SERVICE
                                RESPONDENT
 
    AND
    NATIONAL ASSOCIATION OF GOVERNMENT
 
    EMPLOYEES, LOCAL R3-118 /2/
 
                              CHARGING PARTY
 
    NANCY B. BROFF, ESQ.
 
    TED M. CHASKELSON, ESQ.
 
                    FOR THE RESPONDENT
 
    ANA DE LA TORRE, ESQ.
 
    MARGARET BERKOWITZ, ESQ.
                    FOR THE GENERAL COUNSEL
 
    THOMAS A. MAKOWSKI, ESQ.
                    FOR THE CHARGING PARTY
 
   BEFORE:  ALAN W. HEIFETZ
                    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN
 UNFAIR LABOR PRACTICE CHARGED FILED JANUARY 22, 1980, WITH THE FEDERAL
 LABOR RELATIONS AUTHORITY.  CONSEQUENTLY, ON JUNE 23, 1980, THE ACTING
 REGIONAL DIRECTOR, REGION III, OF THE AUTHORITY ISSUED A COMPLAINT
 ALLEGING THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE BY
 ACTIONS AND STATEMENTS MADE BY ITS AGENTS AT MEETINGS WHICH TOOK PLACE
 ON AUGUST 2, 1979;  OCTOBER 10, 1979;  AND DECEMBER 14, 1979.
 RESPONDENT DENIES THAT ANY MEETING OR ANY STATEMENT MADE AT THOSE
 MEETINGS CONTRAVENES THE STATUTE.  RESPONDENT ALSO MOVES TO DISMISS THE
 COMPLAINT FOR FAILURE TO STATE AN UNFAIR LABOR PRACTICE.
 
    A HEARING WAS HELD ON DECEMBER 16, 1980, IN WASHINGTON, D.C.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
 AND TO INTRODUCE EVIDENCE.  POST HEARING BRIEFS HAVE BEEN FILED AND
 CONSIDERED.  UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
 AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    THE UNION BEGAN ORGANIZING IN JUNE OF 1979.  SEVERAL OF THE
 PARTICIPANTS, INCLUDING MARY DURKIN WHO WAS TO BECOME PRESIDENT AND
 PATRICIA YANKUS WHO WAS TO BECOME SECRETARY-TREASURER OF THE UNION,
 BEGAN DISTRIBUTING UNION LITERATURE AND SOLICITING SIGNATURES TO
 EVIDENCE INTEREST IN ORGANIZING.  RESPONDENT WAS WELL AWARE OF THIS
 ACTIVITY SINCE IT BEGAN IN AN OPEN ATMOSPHERE WITH THE ORGANIZERS
 PUBLICLY REVEALING THEIR LEADERSHIP IN NEWSLETTERS.
 
    EARLY ON, THE FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS) TOOK
 SOME EXCEPTION TO THE HANDBILLING CARRIED OUT BY THE ORGANIZERS AND TO
 THE USE OF CONFERENCE ROOMS FOR UNION BUSINESS.  /3/ THIS INITIAL PHASE
 OF UNION ORGANIZING COINCIDED WITH A PERIOD OF DELICATE NEGOTIATIONS
 BETWEEN RESPONDENT AND THE OFFICE OF MANAGEMENT AND BUDGET CONCERNING
 STAFFING LEVELS AND BUDGET AT FMCS.  THE FOCUS OF THE NEGOTIATIONS WAS
 ON DESK AUDITS SEEKING TO JUSTIFY THE RETENTION OF EACH JOB AND TO AVOID
 ANY REDUCTION-IN-FORCE.  RESPONDENT WAS CONCERNED THAT CONFIDENTIAL
 BUDGET AND PERSONNEL INFORMATION, PERTINENT TO THOSE NEGOTIATIONS, HAD
 BEEN DISCLOSED IN THE NASCENT UNION'S PUBLICATIONS.  IT FEARED FURTHER
 DISCLOSURES SINCE HANDBILLS WERE BEING PLACED DIRECTLY ON TOP OF
 EMPLOYEE DESKS WHERE SUCH CONFIDENTIAL INFORMATION WAS LEFT OVERNIGHT
 AND EXPOSED TO THE VIEW OF ANYONE WITH ACCESS TO THE DESK BEFORE OR
 AFTER WORKING HOURS.  THESE WERE THE CIRCUMSTANCES WHICH LED TO A
 MEETING ON AUGUST 2, 1979, BETWEEN MS.  DURKIN AND MR. KENNETH MOFFETT
 AND THE FIRST OF THE THREE ALLEGED UNFAIR LABOR PRACTICES REFERRED TO IN
 THE COMPLAINT.
 
    MS. DURKIN, THE PRESIDENT OF THE UNION, IS A BUDGET ANALYST WITH
 FMCS.  SHE HAS BEEN EMPLOYED BY RESPONDENT SINCE SEPTEMBER, 1973.
 ALTHOUGH HER JOB IS NOT CATEGORIZED AS "CONFIDENTIAL", SHE HAS ACCESS TO
 CONFIDENTIAL BUDGET INFORMATION IN THE ROUTINE PERFORMANCE OF HER
 DUTIES.  ON A NUMBER OF OCCASIONS AS A MEMBER OF A GROUP PARTICIPATING
 IN BRIEFING SESSIONS PREPARATORY TO BUDGET SUBMISSIONS TO CONGRESS AND
 OMB, MS. DURKIN HAS MET WITH MR. MOFFETT, DEPUTY DIRECTOR OF RESPONDENT.
  EMPLOYEES OF RESPONDENT ROUTINELY ADDRESS MR. MOFFETT BY HIS FIRST NAME
 AND HE STATED THAT HE WAS ON A FIRST NAME BASIS WITH MS. DURKIN.  SHE
 STATED THAT SHE DOESN'T CALL HIM ANYTHING.  MR. MOFFETT INITIATED THE
 PRIVATE MEETING HELD BETWEEN THEM ON AUGUST 2, 1979.
 
    AS NOTED ABOVE, MR. MOFFETT WAS CONCERNED WITH THE POSSIBLE
 DISCLOSURE DURING THE ORGANIZING CAMPAIGN OF CONFIDENTIAL INFORMATION
 DETRIMENTAL TO RESPONDENT'S NEGOTIATING POSITION WITH OMB.  TO THAT END,
 HE SOUGHT TO CONVEY TO MS. DURKIN SOME "FRIENDLY ADVICE" AT THIS
 MEETING.  MS. DURKIN BROUGHT A NOTE PAD BECAUSE SHE WAS NERVOUS.  MR.
 MOFFETT SAID THAT HE WANTED TO TALK ABOUT THE UNION AND "CLEAR THE AIR",
 AND THAT HE WANTED TO DISCUSS HER HANDLING OF CONFIDENTIAL INFORMATION.
 HE SAID THAT HE WANTED TO "FOREWARN" HER ABOUT THIS CONFIDENTIALITY.
 SHE ASKED WHETHER SHE NEEDED A REPRESENTATIVE AND WHETHER THIS MATTER
 WOULD LEAD TO A DISCIPLINARY CHARGE.  HE STATED NO, THAT HE MERELY
 WANTED TO FOREWARN HER.
 
    HE PREFACED HIS ADVICE BY TELLING HER THAT HE HAD SPENT ALMOST FIVE
 YEARS AS A STAFF ORGANIZER WITH THE MINE WORKERS, THAT HIS GRANDFATHER
 HAD BEEN IN THE MINE WORKERS' UNION AND THAT HIS FATHER HAD BEEN A UNION
 ORGANIZER FOR MOST OF HIS LIFE BEFORE BECOMING PRESIDENT OF AN
 INTERNATIONAL UNION FOR THIRTEEN YEARS.  HE ALSO TOLD HER THAT HE KNEW
 THE HISTORY OF HER FAMILY.  BY THESE REMARKS, MR. MOFFETT ATTEMPTED TO
 CONVEY TO MS. DURKIN THAT HE WAS AWARE OF HOW UNION BUSINESS COULD BE
 CONDUCTED OTHER THAN IN THE WAY HE FELT IT WAS BEING CONDUCTED AT THAT
 TIME AT FMCS.  /4/
 
    THERE IS NO DISPUTE AS TO THE BALANCE OF THE CONVERSATION.  NERVOUS,
 AND UNCONVINCED THAT THIS MEETING WOULD NOT LEAD TO SOME ACTION AGAINST
 HER, MS. DURKIN TYPED UP HER NOTES IN THE FORM OF A NEWSLETTER WHICH WAS
 DISTRIBUTED THE NEXT DAY, BUT NOT BEFORE IT WAS CLEARED BY THE UNION
 ATTORNEY WHO WANTED "TO MAKE SURE THAT NOTHING CONTAINED IN THE
 NEWSLETTER WOULD JEOPARDIZE OUR CHANCES OF FILING A CHARGE LATER."
 REFERRING TO MR. MOFFETT, THE NEWSLETTER CONTAINED THE FOLLOWING:
 
    HE SAID THAT OUR NEWSLETTERS WERE "GLIB" AND "CHATTY" AND THAT
 WHETHER THE DOORS TO
 
    PERSONNEL ARE LOCKED IS NONE OF OUR BUSINESS.
 
    HE SAID "IF YOU ARE GOING TO BE A UNION, YOU OUGHT TO ACT LIKE ONE,"
 AND THAT HE WOULD
 
    PREFER US TO HAND OUT OUR NEWSLETTERS IN FRONT OF THE BUILDING-- NOT
 DESK TO DESK.
 
    HE SAID THAT HE DID NOT KNOW HOW MUCH EXPERIENCE I HAD IN UNIONIZING,
 BUT THAT HE HAD NEVER
 
    HEARD OF A REQUEST FOR CONFERENCE ROOMS ON "MANAGEMENT PROPERTY".  I
 SAID I BELIEVED THERE WAS
 
    A DIFFERENCE IN FEDERAL SECTOR UNIONIZING, AS OPPOSED TO PRIVATE
 SECTOR ORGANIZING-- THAT
 
    OPPOSITION OF A UNION WAS O.K. IN THE PRIVATE SECTOR, BUT THAT
 MANAGERS WERE TO REMAIN NEUTRAL
 
    IN THE FEDERAL SECTOR.  HE WANTED TO CONTINUE TO DISCUSS THE
 CONFERENCE ROOM ISSUE, BUT I SAID
 
    SINCE IT WAS BEFORE THE FLRA, I DID NOT WANT TO DISCUSS IT.
 
    HE SAID AGAIN THAT HE WANTED TO REMIND ME ABOUT THE CONFIDENTIAL
 NATURE OF MY JOB.
 
                              -- MARY DURKIN
 
    MS. DURKIN DID NOT KNOW OF ANY OTHER BUDGET ANALYSTS WHO WERE
 SIMILARLY REMINDED OF THE CONFIDENTIAL NATURE OF THEIR POSITIONS.
 HOWEVER, THERE IS NO EVIDENCE THAT OTHERS WITH SIMILAR JOB DESCRIPTIONS
 WERE IN POSITIONS TO PUBLISH CONFIDENTIAL INFORMATION IN CONNECTION WITH
 THE ORGANIZING CAMPAIGN.  THERE WAS EVIDENCE THAT EMPLOYEES WHOSE
 POSITIONS WERE QUESTIONED AS BEING CONFIDENTIAL HAD BEEN REMINDED OF
 RESPONDENT'S POLICY OF NONDISCLOSURE OF SUCH INFORMATION.
 
    THE SECOND MEETING REFERRED TO IN THE COMPLAINT OCCURRED ON OCTOBER
 10, 1979.  THE UNIT STATUS OF SEVERAL EMPLOYEES WAS IN QUESTION BUT,
 WHEN IT WAS ASCERTAINED THAT THE NUMBER OF CHALLENGED POSITIONS HAD
 FALLEN BELOW FIFTEEN PERCENT, THE AUTHORITY REPRESENTATIVES PRESENT
 INDICATED THAT AN ELECTION COULD BE HELD.  AT THIS POINT IN THE MEETING
 DAVID VAUGHN, RESPONDENT'S GENERAL COUNSEL, INDICATED THAT FMCS HAD
 SERIOUS CONCERNS ABOUT THE STATUS OF PATRICIA YANKUS, A SECRETARY IN A
 POSITION CHALLENGED BY RESPONDENT TO BE CONFIDENTIAL.  AS NOTED ABOVE,
 MS. YANKUS WAS A UNION OFFICER AND RESPONDENT WAS CONCERNED THAT SHE
 WOULD BE PLACED IN A POSITION OF POSSIBLE CONFLICT OF INTEREST SINCE SHE
 HAD ACCESS TO AGENCY CONFIDENTIAL INFORMATION AND AGENCY CONFIDENTIAL
 INFORMATION HAD BEEN DISCLOSED IN UNION ORGANIZING LITERATURE.  MS.
 YANKUS WAS NOT BEING ACCUSED OF LEAKING INFORMATION NOR HAD SHE EVER
 BEEN REPRIMANDED AT ANY PRIOR TIME FOR SO DOING.  MR. VAUGHN DID STATE
 THAT ANY EMPLOYEE RESPONSIBLE FOR LEAKING CONFIDENTIAL INFORMATION WOULD
 BE DEALT WITH ACCORDINGLY.  SPEAKING THEN TO THE POTENTIAL CONFLICT OF
 INTEREST, MR.  VAUGHN SUGGESTED THAT ONE ALTERNATIVE MIGHT BE THAT MS.
 YANKUS TAKE A LEAVE OF ABSENCE FROM HER UNION POSITION PENDING THE
 RESOLUTION OF HER STATUS AS A CONFIDENTIAL EMPLOYEE.  /5/ THE UNION
 ATTORNEY THEN STATED THAT THAT WOULD BE A MATTER FOR INTERNAL UNION
 CONSIDERATION.  MR. VAUGHN AGREED.
 
    MS. YANKUS TOOK MR. VAUGHN'S REMARKS AS A THREAT TO "PULL SOMETHING"
 IF SHE DIDN'T LEAVE.  MS. DURKIN WAS VERY UPSET AND ANGRY.  SHE THOUGHT
 IF MS.  YANKUS LEFT, THAT WOULD BE THE END OF THE UNION.
 
    THE UNION WON THE REPRESENTATION ELECTION IN NOVEMBER, 1979.  TWO
 NEGOTIATION SESSIONS OVER COLLECTIVE BARGAINING WERE THEN HELD IN
 DECEMBER, ONE ON THE 7TH AND ONE ON THE 14TH.  THE SESSION ON THE 14TH
 BECAME A SUBJECT MATTER OF THE COMPLAINT.
 
    AT THE NEGOTIATION SESSION ON DECEMBER 14, 1979, ASSISTANT GENERAL
 COUNSEL NANCY BROFF, ACTING AS CHIEF NEGOTIATOR FOR RESPONDENT, TOLD MS.
 YANKUS THAT IF IT WERE LATER DETERMINED THAT HER POSITION WAS EXCLUDED
 FROM THE BARGAINING UNIT, SHE WOULD HAVE TO PAY BACK ALL OFFICIAL TIME
 USED OUT OF HER ANNUAL LEAVE BALANCE.  MS. YANKUS RESPONDED THAT SHE WAS
 AWARE THAT SHE WOULD BE CHARGED FOR ANNUAL LEAVE IF SHE WERE FOUND NOT
 TO BE A MEMBER OF THE BARGAINING UNIT BUT THAT THE UNION FELT THAT SHE
 WAS INDEED A MEMBER OF THAT UNIT.  /6/ NOTWITHSTANDING, MS. YANKUS
 CONTINUED HER PARTICIPATION BUT TOOK THE STATEMENT AS THREATENING, AND
 TWO MEMBERS OF THE UNION NEGOTIATING TEAM, MS. DURKIN AND SUSAN
 MCMENAMIN, THOUGHT THE TEAM WOULD BE WEAKENED IF MS. YANKUS WERE FORCED
 TO LEAVE IT.
 
                        DISCUSSION AND CONCLUSIONS
 
    AS NOTED ABOVE, RESPONDENT MOVED TO DISMISS THE COMPLAINT FOR FAILURE
 TO STATE AN UNFAIR LABOR PRACTICE.  THE RULES AND REGULATIONS OF THE
 AUTHORITY PROVIDE THAT THE COMPLAINT SHALL INCLUDE A "CLEAR AND CONCISE
 DESCRIPTION OF THE ACTS WHICH ARE CLAIMED TO CONSTITUTE UNFAIR LABOR
 PRACTICES".  5 CFR 2423.12(B)(7).  HOWEVER, THE RULES OF THE AUTHORITY
 SHOULD BE CONSTRUED NO LESS LIBERALLY THAN THE FEDERAL RULES OF CIVIL
 PROCEDURE WHICH PROVIDE THAT THOSE RULES ARE TO BE CONSTRUED "TO SECURE
 THE JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION" (RULE
 1) AND THAT PLEADINGS "SHALL BE SO CONSTRUED AS TO DO SUBSTANTIAL
 JUSTICE" (RULE 8).
 
    IN SUNDSTRAND CORPORATION V. STANDARD KOLLSMAN INDUS., INC., /7/ THE
 DISTRICT COURT REFUSED TO ADMIT PLAINTIFF'S EVIDENCE PROVING FRAUD
 BEYOND THE SPECIFIC ACTS ALLEGED IN THE COMPLAINT, DESPITE THE FACT THE
 DEFENDANTS HAD NOTICE OF THE ADDITIONAL CLAIMS WHEN THE PLAINTIFF FILED
 ITS RESPONSE TO DEFENDANT'S INTERROGATORIES.  REVERSING THE DISTRICT
 COURT, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT STATED, "PERHAPS THE
 MOST STRIKING DEVELOPMENT OF MODERN PROCEDURE HAS BEEN THE RECOGNITION
 THAT PLEADING IS IMPORTANT ONLY TO INFORM THE OPPOSING PARTY OF WHAT IS
 CLAIMED AND THE GROUND UPON WHICH THE CLAIM RESTS." /8/ IN DECIDING THAT
 THE DEFENDANTS HAD ACTUAL NOTICE, THE COURT LOOKED BEYOND THE PLEADINGS
 TO THE "PRETRIAL CONDUCT AND COMMUNICATIONS OF THE PARTIES." /9/
 
    IN THIS CASE, PARAGRAPH 6 OF THE COMPLAINT STATES:
 
    ON OR ABOUT AUGUST 2, 1979, WHICH WAS 9 DAYS AFTER THE UNION FILED A
 REPRESENTATION
 
    PETITION WITH THE AUTHORITY, RESPONDENT, BY KENNETH E. MOFFETT, MET
 WITH MARY DURKIN, FEDERAL
 
    MEDIATION AND CONCILIATION SERVICE (HEREINAFTER FMCS) BUDGET ANALYST
 AND UNION PRESIDENT, TO
 
    DISCUSS THE CONFIDENTIALITY OF DURKIN'S AGENCY POSITION.
 
    HOWEVER, THE AMENDED CHARGE WHICH WAS SERVED ON RESPONDENT IN MARCH
 OF 1980 STATES AS A BASIS FOR A CHARGE THAT "THE PRESIDENT, MARY P.
 DURKIN, WAS VERBALLY THREATENED BY DEPUTY DIRECTOR KENNETH E. MOFFETT
 WHEN HE CALLED HER TO HIS OFFICE TO 'FOREWARN YOU ABOUT THE CONFIDENTIAL
 NATURE OF YOUR POSITION 'REPEATEDLY." THIS WAS PREFACED BY A CHARGE THAT
 OFFICIALS OF THE UNION HAVE EXPERIENCED DISCRIMINATION FOR ENGAGING IN
 UNION ACTIVITIES.
 
    WHILE IT HAS NOT BEEN CONTENDED THAT MEETING WITH AN EMPLOYEE, WHO
 HAPPENS TO BE A UNION OFFICIAL, FOR THE PURPOSE OF DISCUSSING THE NATURE
 OF THE EMPLOYEE'S JOB, IS AN UNFAIR LABOR PRACTICE, /10/ IT IS BEYOND
 CAVIL TO CONTEND THAT A THREAT, DISCRIMINATORILY AIMED AT A UNION
 OFFICIAL IS NOT PROSCRIBED BY THE STATUTE.  THEREFORE, BASED ON THE
 ACTUAL KNOWLEDGE RESPONDENT HAD OF THE THEORY OF THE CASE AND THE FACTS
 AS ALLEGED IN THE COMPLAINT AND THE CHARGE BY THE GENERAL COUNSEL, I
 DECLINE TO DISMISS THE COMPLAINT ON PROCEDURAL GROUNDS ALTHOUGH I WOULD
 DO SO IF I CONSIDERED MERELY THE LANGUAGE OF THE COMPLAINT BY ITSELF.
 HOWEVER, I ALSO DECLINE TO ENTERTAIN WHAT IS IN EFFECT AN ATTEMPT TO
 BROADEN THE COMPLAINT BY COUNSEL FOR THE GENERAL COUNSEL WHO HAS ARGUED
 ON BRIEF THAT CERTAIN COMMENTS BY MR. MOFFETT ARE VIOLATIONS OF THE
 STATUTE BECAUSE THEY DISPARAGE THE UNION AND UNION AND MS. DURKIN'S
 EFFORTS ON ITS BEHALF.  /11/ SINCE THE OTHER CHARGES IN THE COMPLAINT
 COULD CONSTITUTE UNFAIR LABOR PRACTICES UNDER APPROPRIATE CIRCUMSTANCES,
 I DENY THE MOTION TO DISMISS AS TO THE REMAINING PARAGRAPHS OF THE
 COMPLAINT.
 
    AS TO THE CONVERSATION BETWEEN MS. DURKIN AND MR. MOFFETT, THE
 GENERAL COUNSEL ARGUES THAT THE STATEMENT MADE TO "FOREWARN" HER ABOUT
 THE CONFIDENTIALITY OF HER POSITION WAS A PRETEXT USED TO INTIMIDATE HER
 IN THE DISCHARGE OF HER DUTIES.  IN ADDITION, IT IS ARGUED THAT THE
 TIMING OF THE STATEMENT AND THE PERCEPTION OF THE STATEMENT AS COERCIVE
 IS ENOUGH TO MAKE OUT A VIOLATION OF THE STATUTE.  RESPONDENT ARGUES
 THAT THE STATEMENTS WERE NOT IN THEMSELVES COERCIVE, NOR WERE THE
 CIRCUMSTANCES.
 
    SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY
 TO "INTERFERE WITH, RESTRAIN, OR COERCE" ANY EMPLOYEE IN THE EXERCISE OF
 THAT EMPLOYEE'S RIGHTS UNDER THE STATUTE.  SINCE THIS LANGUAGE CLOSELY
 PARALLELS THAT OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 151 ET
 SEQ., AND IS INTENDED TO CONFER UPON PUBLIC SECTOR EMPLOYEES RIGHTS
 SIMILAR TO THOSE ENJOYED BY EMPLOYEES IN THE PRIVATE SECTOR, CASES UNDER
 THE NLRA MAY GIVE GUIDANCE TO THE STANDARD TO BE APPLIED UNDER THIS
 SECTION TO MAKE OUT A VIOLATION.  THAT STANDARD BY WHICH ONE MAY
 DETERMINE INTERFERENCE, RESTRAINT OR COERCION, IS NOT THE SUBJECTIVE
 PERCEPTIONS OF THE EMPLOYEE, NOR IS IT THE INTENT OF THE EMPLOYER.
 RATHER THE TEST IS WHETHER, UNDER THE CIRCUMSTANCES OF THE CASE, THE
 EMPLOYER'S CONDUCT MAY REASONABLY TEND TO COERCE OR INTIMIDATE THE
 EMPLOYEE, /12/ OR, IN THE CASE OF A STATEMENT, WHETHER THE EMPLOYEE
 COULD REASONABLY HAVE DRAWN A COERCIVE INFERENCE FROM THE STATEMENT.
 /13/ THE EFFECT OF THE EMPLOYER'S STATEMENTS MUST BE JUDGED IN THE LIGHT
 OF CIRCUMSTANCES IN WHICH WORDS, INNOCENT IN AND OF THEMSELVES, MAY BE
 UNDERSTOOD AS THREATS.  /14/ IN DELIMITING THE PERMISSIBLE BOUNDS OF AN
 EMPLOYER'S REMARKS, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT STATED:
 
    THERE IS NO SANCTION IMPOSED UPON THE RIGHT OF AN EMPLOYER TO EXPRESS
 HIS VIEWS ON LABOR
 
    POLICIES OR PROBLEMS, OR TO EXPRESS HIS PREFERENCE OF ONE COMPETING
 UNION OVER ANOTHER, EVEN
 
    TO TAKE SIDES PROVIDED HE DOES NOT COERCE, RESTRAIN OR INTERFERE WITH
 THE SELECTION OF A
 
    BARGAINING REPRESENTATIVE.  /15/
 
    THE CIRCUMSTANCES SURROUNDING THE STATEMENTS MADE BY MR. MOFFETT TO
 MS. DURKIN MILITATE AGAINST A FINDING OF A VIOLATION OF THE STATUTE.
 HERE WAS A FORMER UNION ORGANIZER, KNOWN ON A FIRST NAME BASIS
 THROUGHOUT HIS AGENCY, CONCERNED THAT AN ORGANIZING CAMPAIGN IN THAT
 AGENCY MIGHT BE LEADING TO THE DISCLOSURE OF INFORMATION DETRIMENTAL TO
 THE AGENCY AND ALL OF ITS EMPLOYEES.  INSTEAD OF BRINGING HIS CONCERNS
 TO THE UNION IN A RIGID ACROSS-THE-TABLE FASHION, HE OPTED FOR A
 FRIENDLY CHAT WITH THE UNION PRESIDENT, A PERSON WHOSE FAMILY HISTORY
 WAS KNOWN TO HIM.
 
    NOTHING IN MR. MOFFETT'S HISTORY OR THE FACTS SURROUNDING THIS
 MEETING INDICATES UNION ANIMUS ON HIS PART OR THAT OF THE AGENCY.  THE
 FACT AN UNFAIR LABOR PRACTICE CHARGE WAS THEN CURRENTLY OUTSTANDING
 AGAINST THE AGENCY DOES NOT ALTER THIS CONCLUSION.  THIS SINGLE CASE
 ONLY INDICATES THAT A DISPUTE BETWEEN THE UNION AND RESPONDENT AROSE
 EARLY IN THE ORGANIZING CAMPAIGN AND WAS SETTLED WITHOUT FINDINGS MADE
 AGAINST EITHER PARTY.
 
    THE TIMING OF THE MEETING INDICATES NOTHING UNTOWARD.  ALTHOUGH MS.
 DURKIN HAD BEEN AND WAS ENGAGING IN PROTECTED ACTIVITY THROUGHOUT THIS
 PERIOD OF TIME, THE DISCLOSURE OF CONFIDENTIAL INFORMATION WAS TAKING
 PLACE AT THE SAME TIME.  RESPONDENT'S CONCERN WAS THAT THE DISCLOSURE
 STOP;  NOTHING INDICATES THAT RESPONDENT ATTEMPTED TO THWART THE UNION
 IN ITS ORGANIZING EFFORTS, ALTHOUGH IT DID WISH TO AVOID A CONFLICT
 BETWEEN THE UNION'S RIGHT TO ORGANIZE AND RESPONDENT'S EFFORTS NOT TO
 JEOPARDIZE ITS NEGOTIATIONS WITH OMB, EFFORTS WHICH WOULD BENEFIT ALL OF
 RESPONDENT'S EMPLOYEES (INCLUDING THOSE WHO WERE ACTIVE IN THE
 ORGANIZING CAMPAIGN.
 
    THE CRUX OF THE GENERAL COUNSEL'S POSITION IS THAT USE OF THE WORD
 "FORWARN" SOMEHOW EQUATES WITH A THREAT.  IN FACT, THE TWO ARE QUITE
 DIFFERENT.  A THREAT SEEKS TO COMPEL ACTION AND IS AN EXPRESSION OF
 INTENT TO DO HARM.  A WARNING, ON THE OTHER HAND, INFORMS AND CAUTIONS.
 IT DOES NOT PROMISE ACTION ON THE PART OF THE SPEAKER BUT IT MAY GIVE
 NOTICE OF THE CONSEQUENCES OF THE RECIPIENT'S ACTIONS.  TO WARN SOMEONE
 ABOUT SKATING ON THIN ICE IS NOT TO THREATEN TO PUSH THAT PERSON ONTO
 THE ICE.  IN THIS CASE, A MAN WITH A HISTORY OF UNION EXPERIENCE IN
 ORGANIZING CAMPAIGNS FOUND THIS UNION'S ACTIVITIES TO BE SOMEWHAT
 QUIXOTIC.  TO PARAPHRASE CERVANTES, HE THOUGHT THAT IF HE COULD
 "FOREWARN" MS. DURKIN ABOUT CONFIDENTIAL MATERIAL, IT WOULD "FOREARM"
 THE UNION, ALL TO THE BENEFIT OF THE ORGANIZING CAMPAIGN AND
 RESPONDENT'S NEGOTIATIONS WITH OMB AS WELL.  HE SOUGHT NOT TO DISPARAGE
 THE UNION BUT TO STRENGTHEN IT BY PREVENTING IT FROM BEING ATTACKED BY
 ITS MEMBERS FOR PRECIPITATING A REDUCTION-IN-FORCE.  AT WORSE, THESE
 WERE "PERFUNCTORY REMARKS, NOT THREATENING OR INTIMIDATING IN
 THEMSELVES, MADE BY AN EMPLOYER WITH NO ANTI-UNION BACKGROUND AND NOT
 ASSOCIATED AS PART OF A PATTERN OR COURSE OF CONDUCT HOSTILE TO UNIONISM
 . . .  (WHICH) CANNOT, STANDING NAKED AND ALONE, SUPPORT A FINDING OF
 VIOLATION" /16/ OF THE STATUTE.  IN NO WAY DID MR. MOFFETT'S REMARKS
 COMPEL OR PROHIBIT ACTION ON THE PART OF THE UNION OR MS.  DURKIN.  AS
 SUCH THEY COULD HAVE BEEN TAKEN MERELY AS GRATUITOUS AND IGNORED.  I
 CONCLUDE THAT THEY DID NOT AMOUNT TO AN UNFAIR LABOR PRACTICE.
 
    PARAGRAPH 7 OF THE COMPLAINT ALLEGES THAT IT WAS AN UNFAIR LABOR
 PRACTICE FOR GENERAL COUNSEL VAUGHN TO SUGGEST THAT MS. YANKUS TAKE A
 LEAVE OF ABSENCE FROM HER DUTIES AS SECRETARY-TREASURER OF THE UNION
 BECAUSE HER AGENCY POSITION WAS AT ISSUE IN A CLARIFICATION OF UNIT
 PETITION BEFORE THE AUTHORITY.  THE AMENDED CHARGE ALLEGES THAT MS.
 YANKUS WAS THREATENED WITH DISCIPLINARY ACTION IF CONFIDENTIAL MATTERS
 WERE LEAKED.
 
    AS NOTED IN THE COMPLAINT, A LEAVE OF ABSENCE WAS SUGGESTED AS AN
 ALTERNATIVE OR AN OPTION TO CONTINUING IN A POSITION OF POSSIBLE
 CONFLICT OF INTEREST.  NO DEMAND WAS MADE, NOR WAS THERE VOICED ANY
 DIRECT OR IMPLIED THREAT OF ADVERSE CONSEQUENCES TO MS. YANKUS SHOULD
 THE SUGGESTION NOT BE TAKEN.  AS A MATTER OF FACT, MR. VAUGHN AGREED
 WITH THE UNION ATTORNEY THAT THE QUESTION OF MS. YANKUS' STATUS WAS
 COMPLETELY FOR INTERNAL RESOLUTION BY THE UNION.  THE GENERAL COUNSEL'S
 CITATION TO UNITED STATES ARMY, CORPUS CHRISTE ARMY DEPOT, CORPUS
 CHRISTE, TEXAS, 4 FLRA 80(1980) IS INAPPOSITE.  IN THAT CASE MANAGEMENT
 MADE IT CLEAR THAT IF UNION ACTIVITY WERE NOT CURTAILED, FUTURE
 OPPORTUNITIES WOULD BE LIMITED FOR THOSE EMPLOYEES ACTIVE IN THE UNION.
 SINCE NOTHING IN MR. VAUGHN'S SUGGESTION, MADE UNDER THE CIRCUMSTANCES
 FOUND IN THIS CASE, CAN BE REASONABLY INTERPRETED AS TENDING TO COERCE A
 RESIGNATION OR AS SUGGESTING PERSONAL RISK FOR CONTINUED PARTICIPATION,
 I CONCLUDE THAT IT DID NOT VIOLATE THE STATUTE.
 
    SIMILARLY, MR. VAUGHN'S STATEMENT THAT ANY EMPLOYEE RESPONSIBLE FOR
 LEAKING CONFIDENTIAL INFORMATION WOULD BE DEALT WITH ACCORDINGLY, DOES
 NOT VIOLATE THE STATUTE.  THIS STATEMENT WAS NOT DIRECTED SOLELY AT MS.
 YANKUS AND IS MERELY CONSISTENT WITH MANAGEMENT'S CONCERN, EXPRESSED BY
 MR. VAUGHN AND MR. MOFFETT TO VARIOUS EMPLOYEES BOTH WITHIN AND WITHOUT
 THE BARGAINING UNIT, THAT CONFIDENTIAL INFORMATION WAS BEING LEAKED, TO
 THE DETRIMENT OF THE AGENCY AND ITS EMPLOYEES.  THE TIMING OF THE
 STATEMENT DOES NOT ALTER ITS NATURE.  WHILE IT WAS MADE AT A PREELECTION
 MEETING, IT WAS ALSO MADE AT A TIME WHEN RESPONDENT HAD A LEGITIMATE
 RIGHT TO BE CONCERNED ABOUT THE PUBLICATION OF CONFIDENTIAL MATERIAL.
 THERE IS NO EVIDENCE UPON WHICH I COULD CONCLUDE THAT MANAGEMENT'S
 CONCERN WITH DISCIPLINARY ACTION FOR DISCLOSING INFORMATION WAS MERELY A
 PRETEXT FOR SINGLING OUT UNION MEMBERS FOR PUNITIVE TREATMENT.  UNDER
 THE CIRCUMSTANCES MANAGEMENT IS WITHIN ITS RIGHTS TO DISCIPLINE ANY
 EMPLOYEE WHO DOES IN FACT DISCLOSE CONFIDENTIAL INFORMATION.  /17/ SINCE
 THE STATEMENT DOES NOT VIOLATE THE STATUTE, ITS AFFECT ON OTHER MEMBERS
 OF THE UNION IS OF NO MOMENT.
 
    PARAGRAPH 8 OF THE COMPLAINT ALLEGES A VIOLATION OF SECTION
 7116(A)(1) OF THE STATUTE BY THE STATEMENT TO MS. YANKUS BY ASSISTANT
 GENERAL COUNSEL NANCY BROFF THAT IF MS. YANKUS' POSITION WERE
 SUBSEQUENTLY EXCLUDED THROUGH CLARIFICATION OF UNIT PROCEEDINGS,
 OFFICIAL TIME GRANTED TO HER IN THE NEGOTIATION OF A
 COLLECTIVE-BARGAINING AGREEMENT WOULD BE CHARGED AGAINST HER ANNUAL
 LEAVE.  THE GENERAL COUNSEL ARGUES THAT THE TIMING AND HARSHNESS OF THE
 THREATENED PENALTY IS INDICATIVE THAT THE STATEMENT HAD A RESTRAINING
 AND INTIMIDATING EFFECT.  RESPONDENT COUNTERS THAT MS. BROFF WAS MERELY
 MAKING A FACTUAL STATEMENT AND WAS NOT ATTEMPTING TO TELL MS.  YANKUS
 WHAT TO DO.
 
    MS. BROFF BELIEVED HER STATEMENT TO BE ONE OF FACT AND ANY HARSHNESS
 OF REPAYING ANY OFFICIAL TIME GRANTED WAS MERELY ONE OF THE FACTS SHE
 BELIEVED WAS TRUE.  /18/ I NEED NOT AND DO NOT REACH THE QUESTION
 WHETHER THE STATEMENT WAS AN ACCURATE EXPOSTULATION OF THE LAW.  I DO
 NOTE, HOWEVER, THAT THE STATEMENT WAS MADE IN THE CONTEXT MERELY OF
 INFORMING MS.  YANKUS OF THE POTENTIAL CONSEQUENCES OF HER CONTINUED
 REPRESENTATION AND NOT IN THE CONTEXT OF ATTEMPTING TO HAVE HER REMOVED
 OR REPLACED AS A BARGAINING REPRESENTATIVE.  MOREOVER, THE STATEMENT WAS
 NOT DIRECTED AT MS. YANKUS BECAUSE SHE DID OR SAID SOMETHING IN THE
 EXERCISE OF PROTECTED ACTIVITY;  THE STATEMENT WAS PROMPTED BY THE
 UNIQUE SITUATION IN WHICH SHE APPEARED AT THE MEETING, THAT OF A UNION
 OFFICIAL WHOSE POSITION AS A MEMBER OF THE BARGAINING UNIT WAS UNDER
 LEGAL CHALLENGE.
 
    SPEECH IS NOT COERCIVE IF IT DOES NOT CONVEY A THREAT OF ECONOMIC
 REPRISAL TAKEN SOLELY ON THE EMPLOYER'S VOLITION /19/ AND IF IT HAS SOME
 BASIS IN OBJECTIVE FACT.  /20/ HERE THE REFERENCE TO LOSS OF ANNUAL
 LEAVE WAS SEEN AS A POSSIBLE CONSEQUENCE SOLELY OF AUTHORITY DECISION
 AND LEGAL COMPULSION.  RESPONDENT DOES NOT CLAIM NOR DID IT IMPLY AT THE
 MEETING THAT IT MIGHT HAVE DISCRETION TO DENY OFFICIAL TIME IF MS.
 YANKUS' POSITION WERE DETERMINED TO BE CONFIDENTIAL.  SINCE MS. YANKUS
 INDICATED THAT SHE WAS AWARE OF THE POSSIBILITY THAT SHE MIGHT HAVE TO
 PAY BACK ANY OFFICIAL TIME GRANTED, THERE IS NO QUESTION WHETHER THE
 STATEMENT HAS ANY BASIS IN OBJECTIVE FACT.  I CONCLUDE THAT THE
 STATEMENT CONTAINED NO THREAT OF REPRISAL, WAS NOT MADE UNDER COERCIVE
 CIRCUMSTANCE AND, THEREFORE, DID NOT VIOLATE THE STATUTE.
 
    HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
 STATUTE AS ALLEGED, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
 AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 CFR 2423.29(C).
 
                                   ORDER
 
    ORDERED, THAT THE COMPLAINT IN CASE NO. 3-CA-818 IS DISMISSED.
 
                         ALAN W. HEIFETZ
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 11, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ WHILE THE JUDGE CITED AND RELIED UPON PRIVATE SECTOR PRECEDENT IN
 REACHING HIS FINDINGS AND CONCLUSIONS HEREIN, THE AUTHORITY NOTES THAT
 THE PRECEDENT ESTABLISHED UNDER THE STATUTE IS TO THE SAME EFFECT.  SEE,
 E.G., DEPARTMENT OF THE ARMY, FORT BRAGG SCHOOLS, 3 FLRA 363(1980);
 GENERAL SERVICES ADMINISTRATION, NATIONAL CAPITAL REGION, 4 FLRA NO.
 69(1980).
 
    /2/ AT THE HEARING THE COMPLAINT WAS AMENDED TO REFLECT THE CURRENT
 NAME OF THE UNION.
 
    /3/ THE QUESTION OF UNION ENTITLEMENT TO THE USE OF CONFERENCE ROOMS
 ACTUALLY BECAME THE SUBJECT OF AN UNFAIR LABOR PRACTICE CHARGE FILED
 AGAINST RESPONDENT EARLY IN THE CAMPAIGN AND SETTLED WITH A NONADMISSION
 CLAUSE AND WITHOUT HEARING.
 
    /4/ NONE OF THE EVIDENCE GIVEN BY MS. DURKIN REGARDING THIS MEETING
 REFERRED TO THESE REMARKS BY MR. MOFFETT.  HOWEVER, I FULLY CREDIT MR.
 MOFFETT'S TESTIMONY BASED ON HIS DEMEANOR, THE CONSISTENCY OF HIS OTHER
 TESTIMONY, AND THE FACT THAT HIS TESTIMONY STANDS UNCHALLENGED.
 
    /5/ WHILE IT IS APPARENT THAT MR. VAUGHN DID NOT TAKE IT UPON HIMSELF
 TO SUGGEST OTHER ALTERNATIVES, IT IS CLEAR BY HIS TESTIMONY THAT HE WAS
 CAREFUL NOT TO STATE THAT A LEAVE OF ABSENCE WAS THE ONLY ALTERNATIVE.
 
    ALTHOUGH BOTH MS. DURKIN AND MS. YANKUS PERCEIVED MR. VAUGHN'S
 REMARKS AS THREATENING BECAUSE THEY BELIEVED HE WAS LOOKING STRAIGHT AT
 MS. YANKUS WHILE HE WAS MAKING HIS STATEMENTS (THERE IS NO EVIDENCE OF
 THE RELATIVE SEATING POSITIONS OF THOSE INVOLVED), I DECLINE TO MAKE
 THAT FINDING BECAUSE I CREDIT MR. VAUGHN'S TESTIMONY THAT WHILE HE MAY
 HAVE LOOKED AT MS. YANKUS DURING THE COURSE OF HIS REMARKS, HE WAS
 ADDRESSING THE MEETING AS A WHOLE.  ALTHOUGH THE TESTIMONY OF MS. DURKIN
 AND MS. YANKUS IS CONSISTENT THROUGHOUT, AS WILL BE SHOWN FURTHER ON IN
 THE TEXT, IT IS CONSISTENT EVEN WHEN IT IS IN ERROR.  I FIND NOTHING
 INSIDIOUS IN THIS;  ONLY THAT I PERCEIVE THAT IN THEIR HONEST EFFORT TO
 PREPARE THEIR TESTIMONY, WHERE ONE'S MEMORY WAS INACCURATE AND THE
 OTHER'S UNSURE, THE INACCURACY WAS TAKEN FOR FACT AND REINFORCED BY
 CONSISTENT TESTIMONY.  OF COURSE COUNSEL FOR THE GENERAL COUNSEL COULD
 HAVE CALLED TO THE WITNESS STAND ONE OF THE AUTHORITY AGENTS WHO WAS IN
 ATTENDANCE AT THE MEETING.  ONE CAN ONLY PRESUME THAT THE FAILURE TO
 CALL AN "UNBIASED" WITNESS INDICATES THAT THAT WITNESS WOULD NOT
 CORROBORATE THE TESTIMONY OF THE WITNESSES FOR THE CHARGING PARTY.
 
    /6/ THE FINDINGS WITH RESPECT TO THE DECEMBER 14, 1979, MEETING ARE
 BASED ON THE TESTIMONY OF MS. ROBIN BROOKS, A MEMBER OF RESPONDENT'S
 NEGOTIATION TEAM AT THE TIME.  MS. BROOKS TOOK NOTES INTENDED TO COVER
 THE SALIENT POINTS RAISED AT THE BARGAINING SESSIONS.  THOSE NOTES
 SERVED TO REFRESH HER RECOLLECTION AND BOLSTER HER OTHERWISE CREDIBLE
 TESTIMONY.  SINCE SHE NO LONGER WORKS FOR RESPONDENT, SHE COULD HAVE NO
 MOTIVE TO BE OTHER THAN CANDID.  HER NOTES AND TESTIMONY SHOW THAT THE
 GENERAL ISSUE OF USE OF OFFICIAL TIME FOR BARGAINING SESSIONS HAD BEEN
 PREVIOUSLY DISCUSSED ON DECEMBER 7, 1979.  THAT GENERAL SUBJECT AND THE
 SPECIFIC ISSUE OF OFFICIAL TIME FOR MS. YANKUS WERE CONFUSED BY MS.
 DURKIN AND MS. YANKUS IN THEIR TESTIMONY.  THEIR MEMORIES OF THE TWO
 DECEMBER SESSIONS SHOW THAT THEY HAVE MERGED SOME OF THE FACTS FROM ONE
 MEETING INTO THE OTHER.  FOR EXAMPLE, THEY BOTH INSIST THAT ATTORNEY
 YOUNGDAHL WAS PRESENT AT THE SESSION ON DECEMBER 14.  HOWEVER, MS.
 BROOKS' NOTES SHOW THAT HE WAS PRESENT ON THE 7TH AND NOT THE 14TH.
 COUNSEL FOR THE GENERAL COUNSEL AND FOR THE UNION DID NOT OFFER TO
 INTRODUCE THE UNION NOTES OF THESE MEETINGS.
 
    /7/ 488 F.2D 807(7TH CIR. 1973).
 
    /8/ ID. AT 811
 
    /9/ ID.  (CITATIONS OMITTED).
 
    /10/ ON BRIEF, THE GENERAL COUNSEL DID NOT SPEAK TO THE MOTION TO
 DISMISS.
 
    /11/ AT THE HEARING, COUNSEL FOR THE GENERAL COUNSEL MOVED TO CONFORM
 THE PLEADINGS TO THE PROOF.  IN PART, IT WAS TO AVOID THE TYPE OF POST
 HOC "SHOTGUN" APPROACH TO ISSUE FRAMING TAKEN ON BRIEF BY THE GENERAL
 COUNSEL THAT THIS MOTION WAS DENIED.  WHILE AMENDMENTS SHOULD ORDINARILY
 BE ALLOWED UNDER A POLICY OF CONSTRUING THE RULES LIBERALLY, THEY SHOULD
 NOT BE ENTERTAINED WHERE THE OPPOSING PARTY WOULD BE TAKEN BY SURPRISE
 OR PUT TO GREAT DISADVANTAGE OR UNDUE DIFFICULTY.  SEE E.G. GAINES W.
 HARRISON & SONS, INC. V. J. I CASE CO., 180 F.SUPP.  243, 247(D.S.C.
 1960), AND DEAKYNE V. COMMISSIONERS OF LEWES, 416 F.2D 190,300(3RD CIR.
 1969).
 
    /12/ RUSSELL STOVER CANDIES, INC. V. N.L.R.B., 551 F.2D 204(8TH CIR.
 1977).
 
    /13/ STEIN SEAL CO. V. N.L.R.B., 605 F.2D 703,706(3RD CIR. 1979).
 
    /14/ N.L.R.B. V. CRYSTAL TIRE COMPANY, 410 F.2D 916,918(8TH CIR.
 1969).
 
    /15/ LAKE CITY FOUNDRY COMPANY V. N.L.R.B., 432 F.2D 1162,1181(1970).
 
    /16/ SAX V. N.L.R.B., 171 F.2D 769,772-3(7TH CIR. 1948).
 
    /17/ SEE E.G., BELL FEDERAL SAVINGS AND LOAN ASSOCIATION OF BELLEVUE,
 214 NLRB 75(1974).
 
    /18/ HER TESTIMONY WAS THAT SHE WAS PASSING ON AN OPINION RECEIVED
 FROM THE OFFICE OF PERSONNEL MANAGEMENT.  THERE IS CONFLICTING TESTIMONY
 AS TO WHETHER SHE COMMUNICATED THAT FACT TO THOSE IN ATTENDANCE AT THE
 MEETING.  RESOLUTION OF THAT