11:0377(75)CO OEA VS DOD, DEPENDENTS SCHOOLS -- 1983 FLRAdec CO



[ v11 p377 ]
11:0377(75)CO
The decision of the Authority follows:


11 FLRA NO. 75
OVERSEAS EDUCATION ASSOCIATION

     Respondent

     and

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS

     Agency

     and

JOSEPH CARDONE

     Charging Party

Case No. 3-CO-34

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices as alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Exceptions to the Judge's Decision were filed by the Respondent.

Pursuant to section 2423.29 of the Authority's Rules and Regulations 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 and conclusion that the Respondent, Overseas Education Association (OEA), violated section 7116(b)(1) and (2) of the Statute 1 [ v11 p377 ] as alleged in the complaint. More specifically, the Authority adopts the Judge's finding, based in part on credibility resolutions, 2 that a representative of OEA refused to provide a unit employee with requested information and connection with the employee's grievance, filed under the negotiated grievance procedure contained in the agreement between OEA and the Department of Defense Dependents Schools (DODDS), because of the employee's non-membership in OEA. While the employee, in filing the grievance, had indicated that he did not seek or desire OEA to act as his representative, the Authority concludes that OEA could not thereafter, on the basis of the employee's non-membership, deny his request for assistance in ascertaining why there had been a delay in management's response to his grievance. Such conduct interfered with the employee's protected rights under section 7102 of the Statute 3 and therefore constituted a violation of section 7116(b)(1). See American Federation of Government Employees, Local 1778, AFL - CIO, 10 FLRA No. 62 (1982). See also Tidewater Virginia Federal Employees Metal Trades Council/International Association of Machinists, Local No. 4 44, 8 FLRA No. 47 (1982). Moreover, the Authority adopts the Judge's conclusion that OEA violated section 7116(b)(1) and (2) of the Statute by requesting DODDS to discipline the employee for having distributed an "open letter" to the faculty publicizing OEA's refusal to assist him and urging that the OEA representative be "recalled" from her position as President of the Local. In this regard, the Authority concludes, in agreement with the Judge, that the employee was once again exercising rights protected by section 7102 of the Statute and that OEA's attempt to cause DODDS to discriminate against the employee for having exercised such rights constituted a violation of section 7116(b)(2) and, additionally, [ v11 p378 ] interference with, restraint and coercion of the employee with regard to the exercise of protected rights in violation of section 7116(b)(1). 4

To remedy the unfair labor practices found, the Judge recommended, inter alia, that copies of the Notice be posted "throughout all European installations where OEA enjoys the right of representation" because the unlawful activity was committed by both local and apparently higher level OEA representatives. The Authority concludes, however, that an order requiring OEA to post notices only where the unlawful conduct was shown to have occurred will best effectuate the purposes and policies of the Statute. See, e.g., National Treasury Employees Union, 10 FLRA No. 91 (1982). Therefore, the Judge's recommended order shall be modified accordingly.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is ordered that the Overseas Education Association shall:

1. Cease and desist from:

(a) Refusing to aid and/or assist Mr. Joseph Cardone, or any other employee who is within a bargaining unit represented by the Overseas Education Association, in securing information relative to the status of grievance because of non-membership in the Overseas Education Association.

(b) Attempting to cause a Federal Agency or Activity to discriminate against Mr. Joseph Cardone, or any other employee who is within a bargaining unit represented by the Overseas Education Association, because they have exercised rights accorded them by section 7102 of the Statute to refrain from joining or assisting the Overseas Education Association or any other labor organization.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action:

(a) Represent all bargaining unit employees without discrimination and without regard to membership in the Overseas Education Association. [ v11 p379 ]

(b) Post at its business offices and its normal meeting places, including all places where notices to members and employees of the Aschaffenburg American Elementary/Junior High School are customarily posted, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms they shall be signed by the President of the Overseas Education Association or his designee, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and all other places where notices to members and employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced or covered by any other material.

(c) Pursuant to section 2429.30 of the Authority's Rules and Regulations, notify the Regional Director of Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., February 18, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p380 ]

       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 refuse to aid and/or assist Mr. Joseph Cardone, or any other employee who is within a bargaining unit represented by the Overseas Education Association, in securing information relative to the status of a grievance because of non-membership in the Overseas Education Association.

WE WILL NOT attempt to cause a Federal Agency or Activity to discriminate against Mr. Joseph Cardone, or any other employee who is within a bargaining unit represented by the Overseas Education Association, because they have exercised their rights accorded them by section 7102 of the Statute to refrain from joining or assisting the Overseas Education Association 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 the Statute.

WE WILL represent all bargaining unit employees without discrimination and without regard to membership in the Overseas Education Association.

                         _________________________
                                  (Union)

Dated: _____________ By: __________________________
                                 (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region III, whose address is: P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8507. [ v11 p381 ]

OVERSEAS EDUCATION ASSOCIATION

     Respondent

     and

DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS

     Agency

     and

JOSEPH CARDONE

     Charging Party

Case No. 3-CO-34

Ronald R. Austin, Esquire
         For the Respondent

Peter B. Robb, Esquire
         For the General Counsel

Before:  BURTON S. STERNBURG
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq., and the rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R. Chapter XIV, part 2411, et seq.

Pursuant to a charge filed on January 25, 1980, by Joseph Cardone, an individual, a Complaint and Notice of Hearing was issued on July 21, 1980, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Overseas Education Association, (hereinafter called the Union or OEA), violated Sections 7116(b)(1) and (2) of the Federal Service Labor - Management Relations Statute (hereinafter called the Statute), by virtue of its actions in (1) refusing to give Mr. Cardone certain information necessary to determine the status of his personal grievance because of his non-membership in the OEA, and (2) attempting to cause the Department of Defense Dependent Schools, (hereinafter called the DODDS), to discriminate against Mr. Cardone because he had publicized, through the medium of an "open letter", OEA's refusal to assist him. [ v11 p382 ]

A hearing in the captioned matter was held on October 14, 1980, in Frankfurt, West Germany. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The parties submitted post hearing briefs on January 15, 1980, which have been duly considered.

Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendation.

Findings of Fact

Mr. Cardone, the charging party herein, has been employed for seven years as a librarian by DODDS at its Aschaffenburg School in Aschaffenburg, Germany. During this time, OEA has been the exclusive representative for certain DODDS employees, including Mr. Cardone, at the Aschafenburg School. Dr. Boyd Reynolds has served as principal of the Aschaffenburg School for the last three years. Ms. Barbara Whisenant, a speech pathologist at the Aschaffenburg School, became the Local OEA President in 1979. Ms. Beverly Hurd, a teacher, became the OEA Faculty Representative (FRS) at the Aschaffenburg School on August 20, 1979. The Faculty Representative acts as the union liaison with management at the school level and performs functions similar to those of a union steward. Ms. Hurd's predecessor as Faculty Representative was John Sramek.

On June 15, 1979, Mr. Cardone filed a grievance pursuant to the provisions of the collective-bargaining agreement between OEA and DODD. 5 The grievance concerned Cardone's contention that Dr. Reynolds had improperly given him a low rating on his performance appraisal. Dr. Reynolds denied the grievance at the first step, and on June 18, 1979, Mr. Cardone appealed the decision to the DODDS District Office in Nuernburg as provided for in Step 2 of the grievance procedure.

Having received no response at Step 2 within the contractual time limitations, Mr. Cardone met Ms. Whisenant and Ms. Hurd at a party on August 17, 1979. Mr. Cardone mentioned the delay in receiving a response to his grievance and his concern that DODDS was in violation of the contract. Mr. Cardone asked them for the name or phone number of an OEA official above the school level with whom he could discuss these concerns. Mr. Cardone was told by Ms. Whisenant and Ms. Hurd that they would check on it and get back to him. At the time, neither Ms. Whisenant nor Ms. Hurd were familiar with the procedures for processing grievances beyond Step 1 at the school level. On the following Monday, August 20, 1979, Mr. Cardone saw Ms. Hurd and Ms. Whisenant in the faculty lounge. When he inquired about the information, they responded that he could call either the Wuerzburg or Shweinfurt Schools, (other schools within the DODDS jurisdiction) and ask for the OEA representative whose first [ v11 p383 ] or last name began with the letter "s". They stated that this person would put Mr. Cardone in touch with someone who could help him. Mr. Cardone did not make any calls because he felt foolish about making a call based on the sketchy information he had received.

On the next day, August 22, Mr. Cardone saw Ms. Hurd in the faculty lounge and asked if she had the telephone number. Ms. Hurd stated that Mr. Purcell from UNISERV 6 was coming and maybe he was the person to talk to. Ms. Hurd said she did not know Mr. Purcell's number but that Ms. Whisenant had it. Ms. Hurd said she would ask Ms. Whisenant for the number. Upon leaving Ms. Hurd, Mr. Cardone met Ms. Whisenant in the hallway. Mr. Cardone briefly related his recent conversation with Ms. Hurd and asked for Mr. Purcell's telephone number. Ms. Whisenant refused to give Mr. Cardone Mr. Purcell's telephone number. According to Mr. Cardone, Ms. Whisenant stated "you are not an OEA member, and I am not going to give it to you". Further according to Mr. Cardone, after had reminded her of her previous promises of help, particularly with respect to giving him the telephone number, Ms. Whisenant replied: "you can do anything, but I don't have to help you because you are not a member of the OEA. If you have problems, I don't care about them. I'm not interested in your problems".

Mr. Cardone then went to the library and wrote a letter to Ms. Whisenant asking her to reply in writing to a series of questions dealing with why she had now refused to provide him with the information and why she had based this refusal on his non-membership in the OEA. Mr. Cardone then went to the faculty lounge and gave the letter to Ms. Whisenant without comment. Later that day Ms. Hurd approached Mr. Cardone in the library and gave him Mr. Purcell's telephone number. Ms. Hurd further indicated she would contact Mr. Purcell and relay Mr. Cardone's concerns as a favor to Mr. Cardone.

On August 23, Mr. Cardone drafted an open letter to the faculty. In the letter, Mr. Cardone recited his exchange with Ms. Whisenant on the previous day, questioned the propriety of the statements made and actions taken by Ms. Whisenant, and pointed out that as the exclusive bargaining representative, the OEA, was under an obligation to represent all unit members irrespective of membership in OEA. Mr. Cardone also set forth his recommendations as to what steps should be taken to improve the situation among which was the recall of Ms. Whisenant as Local President. On the following day, Mr. Cardone made copies of the letter on the school ditto machine and distributed the copies of the letter to the faculty members.

That afternoon, Ms. Whisenant and Ms. Hurd went to Dr. Reynold's office to discuss the letter. Ms. Whisenant and Ms. Hurd went over the letter with Dr. Reynolds and expressed concern over the implication therein that Ms. Whisenant was unprofessional and bigoted, they also pointed out that the tone of the letter could have provoked an emotional response among the faculty. Ms. Hurd then asked Dr. Reynolds to take disciplinary action, such as a reprimand, against [ v11 p384 ] Mr. Cardone for having distributed the letter. Dr. Reynolds responded that he felt it was a personal matter, not involving him or the school, and that a reprimand was not in order. Upon receiving Dr. Reynolds negative response Ms. Hurd and Ms. Whisenant cited Mr. Cardone's use of the school ditto machine and took the position that the machine was to be used solely for official business. Dr. Reynolds pointed out that other persons had reproduced non-official materials on the machine in the past. The OEA officials replied that the other non-official material had tended to produce harmony while Mr. Cardone's letter would have caused discord. After Dr. Reynolds made it clear that he did not think that Mr. Cardone "hadn't done anything that other people hadn't done as well", one of the OEA officials stated that if Dr. Reynolds wouldn't do something, they would ask Mr. Purcell to come down and talk with him. The meeting ended with Dr. Reynolds telling the OEA officials that they could do that if they so desired.

Dr. Reynolds met with Ms. Whisenant, Ms. Hurd and OEA UNISERV person, Mr. Purcell, on August 28. Again, the parties discussed Mr. Cardone's open letter to the faculty. Mr. Purcell stated that Mr. Cardone should be disciplined for writing and distributing the letter. Mr. Purcell in the alternative urged that Mr. Cardone be disciplined for using government machines and supplies. Dr. Reynolds responded that inasmuch as he had not disciplined other people for using the machines for unofficial business, he would not discipline Mr. Cardone for having done so. Mr. Purcell spoke to Dr. Reynolds alone and threatened that OEA would bring some action against him if he didn't do something to Mr. Cardone. Dr. Reynolds took no action against Mr. Cardone. 7

Discussion and Conclusions

The General Counsel take the position that, inasmuch as sections 7102 and 7114(a) of the Statute, respectively, give employees the right to refrain from joining a labor organization and impose upon a labor organization, which is the exclusive representative, the responsibility and/or obligation of representing all unit employees irrespective of union membership in such labor organization, Respondent's refusal to supply certain information to Mr. Cardone because of [ v11 p385 ] his non-union membership was violative of Section 7116(b) of the Statute. Additionally, the General Counsel further argues, that Respondent's action in attempting to have DODDS discipline Mr. Cardone was violative of Section 7116(b)(2) since such action was also predicated on his exercise of the right accorded him by Section 7102 of the Statute of refrain from joining the Union.

Respondent, on the other hand, takes the position that neither of the actions taken by the OEA representatives was violative of the Statute since Respondent contends that the denial of information was based solely upon Ms. Whisenant's belief that assistance to Mr. Cardone would have been in direct conflict with the existing collective bargaining agreement which gives employees the right to process their grievances without union assistance or intervention. Since Mr. Cardone had specifically declined union representation at an earlier date, Respondent appears to be arguing that it was under no obligation to give him assistance, such as supplying the requested information. Respondent further argues that inasmuch as Ms. Whisenant did not enjoy any representational duties in her position as Union President, she was within her rights in declining to assist Mr. Cardone. 8 Lastly, Respondent takes the position that the request to Mr. Reynolds to discipline Mr. Cardone was based solely upon his actions in unlawfully using the ditto machine and not because of his non-membership in the OEA.

In agreement with the General Counsel, I find that the actions taken by Ms. Whisenant, Ms. Hurd and Mr. Purcell were violative of Section 7116(b)(1) and 7116(b)(2) of the Statute. Aside from the fact that I have credited Mr. Cardone's version of the facts to the extent that they differ from those of Ms. Whisenant, it is clear that Ms. Whisenant predicated, at least in part, her refusal to give Mr. Cardone the requested information on his non-membership in the OEA. Accordingly, inasmuch as the Authority has found that the accordance of such disparate treatment by the exclusive representative interferes with the right of employees to refrain from joining or assisting a labor organization, I conclude that Ms. Whisenant's statement was violative of Section 7116(b)(1) of the Statute. Cf. National Treasury Employees Union, (NTEU), et al., 1 FLRA No. 104, wherein the Authority reached a similar conclusion under Executive Order 1191, as amended, which contained similar, if not identical language to that set forth in the Statute. The fact that Ms. Whisenant's words were intended to clarify the respective responsibilities of the union representative, i.e. the President and the FRS Representative, is of no consequence. This is particularly true under the circumstances present herein where there is no logical reason for the inclusion of the reference to Mr. Cardone's non-membership in the Union. Finally, contrary to the contention of Respondent, I find that the fact that Ms. Whisenant position as OEA President [ v11 p386 ] entails no representational responsibilities is not a sufficient reason to hold the OEA harmless for the coercive utterances of its agents.

Turning now to the OEA request that Mr. Reynolds discipline Mr. Cardone, I find that such request was predicated solely upon Mr. Cardone's action in publishing the open letter to the faculty urging that Ms. Whisenant be "recalled" from her position as President of the Local, and not, as contended by Respondent, his unlawful use of the Agency's ditto machine. In reaching this conclusion, I note that the unauthorized use of the ditto machine was raised only after Mr. Reynolds has failed to agree with the Union's contention that the open letter to the faculty was liable to provoke an emotional response.

The right to refrain from joining or supporting a union encompasses the right to distribute letters or other publications urging fellow employees to do likewise. An attempt to restrict such right through the medium of Agency discipline is violative of Section 7116(b)(2) of the Statute. Cf. International Union of Operating Engineers, Local 400, AFL - CIO, 225 NLRB 596; Roadway Express, Inc. 108 NLRB 874, Enf. 277 F. 2d 439, wherein the National Labor Relations Board reached a similar conclusion under the National Labor Relations Act, which contains similar language to that of Section 7102 of the Statute. Having found that the requested discipline was based upon Mr. Cardone's open letter to the faculty and that such activity falls within the rights accorded an employee under Section 7102 of the Statute, I further find that the OEA's request to Mr. Reynolds to discipline Mr. Cardone was violative of Section 7116(b)(2) of the Statute. Having found that the Overseas Education Association violated Sections 7116(b)(1) and 7116(b)(2) of the Statute, I recommend that the Authority issue the following Order: 9

ORDER

Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. Section 2423.29(b)(1), the Authority hereby orders that the Overseas Education Association shall: 1. Cease and desist from: (a) Refusing to aid and/or assist Mr. Joseph Cardone, or any other employee who is a member of a bargaining unit represented by the Overseas Education Association, in securing information relative to the status of a grievance because of their non-membership in the Overseas Education Association. [ v11 p387 ]

(b) Attempting to cause a Federal Agency or Activity to discriminate against Mr. Joseph Cardone, or any other employee who is a member of a bargaining unit represented by the Overseas Association, because they have exercised their rights accorded them by Section 7102 of the Statute to refrain from joining or assisting the Overseas Education Association. (c) In any like or related manner, interfering with, restraining, coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action: (a) Post of all European DODDS schools where the Overseas Education Association is the exclusive representative of bargaining units, copies of the attached Notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms they shall be signed by the President of the Overseas Education Association, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where Notices to unit members are customarily posted. The President of the Overseas Education Association shall take reasonable steps to insure that such Notices are not altered, defaced or covered by any other material. (b) Notify the Federal Labor Relations Authority in writing within 30 days from the date of this order as to what steps have been taken to comply herewith.

BURTON S. STERNBURG
Administrative Law Judge

Dated:  February 17, 1981
        Washington, D.C.

[ v11 p388 ]

APPENDIX

         NOTICE TO ALL EMPLOYEES
               PURSUANT TO
        A DECISION AND ORDER OF THE
     FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
       CHAPTER 71 OF TITLE 5 OF THE
            UNITED STATES CODE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
   WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to aid and/or assist Mr. Joseph Cardone, or any other employee who is a member of a bargaining unit represented by the Overseas Education Association, in securing information relative to the status of a grievance because of their non-membership in the Overseas Education Association.

WE WILL NOT attempt to cause a Federal Agency or Activity to discriminate against Mr. Cardone, or any other employee who is a member of a bargaining unit represented by the Overseas Education Association, because they have exercised the right accorded them by Section 7102 of the Statute to refrain from joining or assisting the Overseas Education Association or any other labor organization.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in exercising their rights assured by the Statute.

                            _____________________________
                                       UNION

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 any other material.

If employees have any question concerning this Notice, or compliance with any of its provision, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region III, whose address is: 1133 15th Street, N.W., Room 300, Washington, D.C. 20005. [ v11 p389 ]

FOOTNOTES

Footnote 1 Section 7116(b) provides in pertinent part: 7116. Unfair labor practices (b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter(.)

Footnote 2 The Respondent excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge has had the advantage of observing the witnesses while they testified. The Authority will not overrule the Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution was incorrect. The Authority has examined the record carefully and finds no basis for reversing the Judge's credibility findings.

Footnote 3 Section 7102 provides, in pertinent part, as follows: 7102. Employees' rights Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right....

Footnote 4 Cf. Sheet Metal Workers International Association, Local 97, 7 FLRA No. 138 (1982), wherein the Authority adopted a Judge's decision which recognized that section 7116(b)(2) prohibits a labor organization from attempting to cause an agency to discriminate against an employee for having engaged in anti-union activity, but dismissed the section 7116(b)(2) allegation therein because the evidence failed to establish that the union's attempt to cause management to discipline the employee in question was motivated by the employee's protected activity.

Footnote 5 The grievance indicated that Mr. Cardone did not seek or desire OEA to act as his representative.

Footnote 6 Although not clear from the record, it appears that UNISERV is a higher office in the OEA hierarchy.

Footnote 7 The foregoing summary of facts is based upon the credited testimony of Mr. Cardone and Dr. Reynolds. Dr. Reynolds' testimony stands virtually undisputed. With respect to Mr. Cardone's testimony, Ms. Whisenant, agrees with the chronology concerning Mr. Cardone's requests for help, etc., concerning his grievance, but denies using the exact words attributed to her by Mr. Cardone on August 22. According to Ms. Whisenant, she merely informed Mr. Cardone that he could not have the telephone number "since you are not a member, I do not represent you, and you can get that information from your FRS, Ms. Hurd". Ms. Whisenant acknowledged the foregoing on cross-examination by the General Counsel only after being shown her pre-hearing statement. According to the testimony of Ms. Whisenant, it was only the FRS (faculty representative) who was empowered to deal with management on such matters as grievances, not the union president. Ms. Whisenant does not claim that she made such an explanation to Mr. Cardone.

Footnote 8 It appears to be Respondent's position that the request should have been made to Ms. Hurd, the OEA Faculty Representative, since she was the only Union representative who had representational responsibilities. Although not entirely clear, it appears that Respondent is taking the position that since Ms. Whisenant did not enjoy and representational responsibilities, her action could not, or should not, bind the Union.

Footnote 9 Inasmuch as the unlawful activity wa