18:0195(27)CA - Customs Service, Region VIII, San Francisco, CA and NTEU -- 1985 FLRAdec CA



[ v18 p195 ]
18:0195(27)CA
The decision of the Authority follows:


 18 FLRA No. 27
 
 UNITED STATES CUSTOMS SERVICE 
 REGION VIII 
 SAN FRANCISCO, CALIFORNIA 
 Respondent
 
 and 
 
 NATIONAL TREASURY EMPLOYEES 
 UNION 
 Charging Party
 
                                            Case No. 9-CA-499
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  The Judge further found that the Respondent had not
 engaged in other unfair labor practices alleged in the complaint, and
 recommended that the complaint be dismissed as to those allegations.
 Exceptions to the Judge's Decision were filed by the General Counsel and
 the Respondent, and the General Counsel and the Charging Party filed
 oppositions to the Respondent's exceptions.  /1/
 
    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 in the case, the Authority hereby
 adopts the Judge's findings, /2/ conclusions /3/ and recommendations, as
 modified herein.
 
    The amended complaint alleged, inter alia, that Respondent violated
 section 7116(a)(1), (5) and (8) of the Statute /4/ by failing to afford
 the Charging Party, the National Treasury Employees Union (the Union),
 notice of and an opportunity to be represented at two formal discussions
 within the meaning of section 7114(a)(2)(A) of the Statute.  /5/ In
 agreement with the Judge, the Authority finds the March 17, 1980 meeting
 of the Logistics Management Division concerning enforcement of the dress
 code policy to be a formal discussion concerning a personnel policy or
 practice or other general condition of employment within the meaning of
 section 7114(a)(2)(A).  /6/ Thus, it is clear that the meeting of March
 17 constituted a discussion /7/ between unit employees and
 representatives of management, and, as noted by the Judge, it is
 undisputed that enforcement of the Respondent's dress code concerns a
 personnel policy or practice or other general condition of employment.
 The only issue is whether the meeting was "formal" in nature.  The
 Authority has previously identified a number of factors relevant to such
 a determination in considering the totality of facts and circumstances
 presented.  See, e.g., Department of Health and Human Services, Social
 Security Administration, Bureau of Field Operations, San Francisco,
 California, 10 FLRA 115 (1982);  Defense Logistics Agency, Defense Depot
 Tracy, Tracy, California, 14 FLRA 475 (1984).
 
    Applying such factors herein, the Authority concludes that the March
 17 meeting was "formal" in nature.  Thus, the meeting was called by
 Lackey, the Respondent's Director of the Logistics Management Division,
 in accordance with a letter from the Acting Regional Commissioner.  In
 addition, the record indicates that several other supervisors or
 management officials also were present.  The record further indicates
 that the Division's employees were informed in advance that the meeting
 would take place, and, as found by the Judge, that the meeting was
 "neither happenstance nor merely a chance encounter of some employees
 with a supervisor." Although from the record it is not apparent whether
 employees were informed in advance as to the particular subject matter
 of the meeting, and there was not a formal agenda, the purpose of the
 meeting was clear:  enforcement of the Respondent's dress code.  While
 the record does not indicate whether attendance was mandatory, it
 appears that most, if not all of the Division employees attended.
 Finally, the record discloses that the meeting lasted 20-25 minutes and
 took place in the work area.  Based on the totality of the foregoing
 facts and circumstances, the Authority concludes that the meeting was
 formal in nature.  Accordingly, as all of the elements of section
 7114(a)(2)(A) of the Statute have been met, the Authority adopts the
 Judge's conclusion that the Union had a right to be given the
 opportunity to be represented at this meeting, and that the Respondent
 violated section 7116(a)(1) and (8) of the Statute by its failure to
 afford the Union such an opportunity.
 
    However, contrary to the Judge, the Authority finds that the General
 Counsel has failed to establish that the Respondent violated section
 7116(a)(5) of the Statute by such conduct.  The only unlawful conduct
 alleged in the amended complaint as to this meeting was that the
 Respondent had failed to permit the Union to be present at a formal
 discussion as required by section 7114(a)(2)(A) of the Statute.  This
 section does not itself give rise to an obligation to negotiate within
 the meaning of the Statute.  Therefore, a failure to comply with section
 7114(a)(2)(A) cannot, standing alone, form the basis of a section
 7116(a)(5) violation.  Accordingly, the Authority shall dismiss that
 portion of the complaint.  Department of Defense, National Guard Bureau,
 Texas Adjutant General's Department, 149th TAC Fighter Group (ANG)
 (TAC), Kelly Air Force Base, 15 FLRA No. 111 (1984).
 
    The Authority also disagrees with the Judge's conclusion that a
 meeting held on March 19, 1980 between an employee and the Assistant
 Regional Commissioner/Administration concerning the application of the
 dress code to that employee constituted a formal discussion.  In this
 regard, the employee expressed a desire to meet with the Assistant
 Regional Commissioner, a second-level supervisor of the employee,
 because the employee wanted to discuss the application and
 interpretation of the dress code with respect to himself.  The meeting
 ultimately took place in the Assistant Regional Commissioner's office.
 No other management representatives or employees attended the meeting,
 which lasted about 20 minutes and solely concerned the employee's
 displeasure and unhappiness with the dress code.  The totality of
 circumstances reflects the absence of formality.  See Office of Program
 Operations, Field Operations, Social Security Administration, San
 Francisco Region, 9 FLRA 48, 50 (1982) (wherein the Authority found that
 a meeting was not a formal discussion because, inter alia, it was
 initiated by the two employees to discuss their own concerns).  /8/
 Accordingly, inasmuch as the meeting was not a formal discussion, the
 Respondent's failure to provide the Union with an opportunity to be
 present was not violative of section 7116(a)(1), (5) and (8) of the
 Statute and the Judge's finding to the contrary must be set aside.  /9/
 
    The complaint also alleged that the meeting of March 19, 1980
 constituted a bypass of the exclusive representative, in violation of
 section 7116(a)(1) and (5) of the Statute.  The Judge failed to make a
 finding as to that allegation.  Although there were no exceptions to the
 Judge's failure to make such a finding, the Authority concludes that the
 meeting did not constitute a bypass of the Union, as the record does not
 establish that the Respondent attempted to deal directly with the
 employee concerning conditions of employment or that the meeting
 undermined the status of the Union as the exclusive representative.
 /10/ Accordingly, the Authority shall dismiss that allegation of the
 complaint.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the United States Customs Service, Region VII, San Francisco,
 California, shall:
 
    1.  Cease and desist from:
 
    (a) Failing to give the employees' exclusive representative, the
 National Treasury Employees Union (NTEU), prior notice of and the
 opportunity to be represented at formal discussions with members of the
 bargaining unit represented by NTEU concerning grievances, personnel
 policies and practices or other general conditions of employment.
 
    (b) Interfering with, restraining or coercing its employees in the
 exercise of their statutory rights by making threats of reprisal because
 they sought representation by NTEU or because they sought to file
 grievances.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Give the National Treasury Employees Union prior notice of, and
 an opportunity to be represented at, formal discussions with bargaining
 unit employees exclusively represented by NTEU concerning grievances,
 personnel policies and practices or other general conditions of
 employment.
 
    (b) Post at United States Customs Service, Region VII, San Francisco,
 California, copies of the attached Notice on forms to be furnished by
 the Federal Labor Relations Authority.  Such forms shall be signed by
 the Principal Regional Official, or his designee 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.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remaining allegations of the amended
 complaint be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B.Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., 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 fail to give the National Treasury Employees Union (NTEU)
 prior notice of, and the opportunity to be represented at, formal
 discussions with members of the bargaining unit exclusively represented
 by NTEU concerning grievances, personnel policies and practices or other
 general conditions of employment.
 
    WE WILL NOT interfere with, restrain, or coerce our employees in the
 exercise of their statutory rights by making threats of reprisal because
 they seek representation by NTEU or because they seek to file
 grievances.
 
    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 give NTEU prior notice of, and an opportunity to be
 represented at, formal discussions with bargaining unit employees
 exclusively represented by NTEU concerning grievances, personnel
 policies and practices or other general conditions of employment.
                                       (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
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IX, Federal Labor Relations Authority, whose address
 is:  530 Bush Street, Room 542, San Francisco, California 94108, and
 whose telephone number is:  (415) 556-810;.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Martha Toy Wong, Esq.
    For the Respondent
 
    Andrew Krakoff, Esq.
    Lucinda A. Bendat, Esq.
    For the Charging Party
 
    Nancy E. Pritikin, Esq.
    For the General Counsel
 
    Before:  SAMUEL A. CHAITOVITZ, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (hereinafter called the
 Statute).
 
    Pursuant to an unfair labor practice charge filed on May 19, 1980, by
 National Treasury Employees Union (hereinafter called Union and/or NTEU)
 against United States Customs Service, Region VII, San Francisco,
 California, (hereinafter called Respondent and/or Customs), said charge
 having been amended on July 1 and 31, 1980, the General Counsel of the
 Federal Labor Relations Authority, by the Director for Region 9, issued
 a Complaint and Notice of Hearing on August 26, 1980.  The Complaint was
 Amended on December 3, 1980.  The Amended Complaint alleges that
 Respondent violated Sections 7116(a)(1), (5) and (8) of the Statute with
 respect to meetings conducted and statements made on March 17 and 19,
 1980.  Respondent in its Answer denies it violated the Statute.
 
    A hearing was held before the undersigned in San Francisco,
 California at which all parties were represented and were afforded full
 opportunity to examine and cross-examine witnesses and to introduce
 evidence.  Post hearing briefs were filed and have been 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
 
    At all times material herein NTEU was the collective bargaining
 representative of a unit that included the employees of Respondent's San
 Francisco Regional Office, Logistics Management Division.
 
    On March 17, 1980 Mr. Rae Lackey, Respondent's Director of the
 Logistics Management Division, called and conducted a meeting of the
 Customs' employees in the Logistics Management Division.  In accordance
 with a letter from Respondent's Acting Regional Commissioner, Lackey
 informed the employees of the existing regional dress code.  Lackey
 stated that the dress code prohibited the wearing of blue jeans and
 tennis shoes and that male employees were to wear shirts and ties.
 Lackey further advised the employees that failure to comply with the
 dress code would result in disciplinary action.  Employee Peter McCool
 questioned the policy and protested its unfair application stating it
 did not apply to women.  Employee Gene McAllister also expressed his
 displeasure with the policy and its application.  Lackey indicated that
 he didn't know if he would have the authority to issue the disciplinary
 letters, but that they would be issued. Mr. Lackey did not argue with
 the employees, he merely stated that he would enforce management's
 decision.  NTEU was not notified in advance concerning this March 17,
 1980 meeting and no Union representative was present.
 
    On March 17, after the Lackey meeting described above, McAllister
 went to see Labor Relations Specialist Ann Segars.  /11/ McAllister
 expressed his concern about the dress code and indicated an interest in
 talking to Paul Andrews, Assistant Regional Commissioner/Administration.
  Segars called Andrews and then advised McAllister that the matter was
 taken care of.
 
    On March 19, 1980 during a meeting with Lackey, concerning
 procurement McAllister was informed that Andrews would be calling in
 McAllister for a meeting concerning the dress code.  McAllister then
 spoke to Union Steward Donna Richardson who informed McAllister that he
 had the right to have a Union representative present at the meeting with
 Andrews.
 
    McAllister then went to Segars' office and informed her that Andrews
 was having a meeting with him.  Segars stated that the meeting was
 probably so that management could come up with some compromise and would
 probably be just "counseling." McAllister mentioned that he was
 considering having a Union representative accompany him.  Segars advised
 McAllister that she "didn't know whether it would be a good idea to have
 a Union representative present at this meeting between Paul Andrews and
 (McAllister).  That it could possibly charge or make the situation more
 rigid." /12/
 
    Later on March 19, 1980, Andrews stopped at McAllister's desk and
 stated that Andrews heard that McAllister wanted a Union representative
 at their meeting and that Andrews did not think it was necessary that
 McAllister have a Union representative there.  McAllister acquiesed
 Andrews, upon encountering Union Steward Richardson in the hall, advised
 Richardson that McAllister did not want a Union representative present.
 
    At 3:00 p.m. on March 19, 1980 Andrews and McAllister met in the
 Regional Commissioner's office.  Just Andrews and McAllister were
 present at the meeting, which lasted approximately 20 minutes.  Andrews
 and McAllister discussed the dress code in detail, including how and why
 it would apply to McAllister and his particular wardrobe.  /13/
 McAllister indicated that he did not think the dress code should apply
 to him since he did not meet the public.  According to McAllister,
 Andrews stated, "You can challenge me on this, but I can issue letters
 of reprimand . . . I can fucking fire your ass.  You can file a
 grievance and all, but you can't fight the system what with letters of
 recommendations and records." At the end of the meeting, Andrews told
 McAllister, "I really think you should consider this before you proceed,
 consider your future with the government." In this regard I credit
 McAllister's version of the conversation, /14/ because his memory with
 respect to this meeting is more reliable and detailed than Andrews'.
 
                        Discussion and Conclusions
 
    General Counsel contends that Customs violated Sections 7116(a)(1),
 (5) and (8) of the Statute by conducting formal discussions with
 bargaining unit employees without providing the Union with notice and an
 opportunity to be present.
 
    Section 7114(a)(2)(A) provides, inter alia:
 
          "(2) An exclusive of an appropriate unit in an agency shall be
       given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance of any personnel policy
       or practices or other general condition of employment."
 
    There is no dispute that the dress code is a personnel policy,
 practice and general condition of employment within the meaning of
 Section 7114(a)(2)(A) of the Statute.  /15/ Respondent contends,
 however, that the March 17 meeting was not formal within meaning of
 Section 7114(a)(2)(A) of the Statute.  In so contending Respondent
 relies upon Department of Defense, U.S. Navy, Norfolk Naval Shipyard,
 FLRC No. 77A-141, 6 FLRC 1103 (1978).  The Federal Labor Relations
 Council, interpreted Section 10(e) of Executive Order 11491.  /16/ The
 Federal Labor Relations Authority (FLRA) has, however, addressed itself
 to Section 7114(a)(2)(A) of the Statute.  In Norfolk Naval Shipyard, 6
 FLRA No. 22 (1981) the FLRA found that two meetings in question, which
 were regular meetings called by the crane operator foremen at the
 beginning or end of shifts to advise the crane operators of important
 developments, were formal discussions within the meaning of Section
 7114(a)(2)(A).  In light of the foregoing it is concluded that the
 meeting of the Logistics Management Division concerning the dress code
 called and conducted by Lackey, was "formal" within the meaning of
 Section 7114(a)(2)(A).  In this regard it is noted that the meeting was
 neither happenstance nor merely a chance encounter of some employees
 with a supervisor.  Rather it was a meeting of a division called by the
 director of that division for the very purpose of advising the employees
 of fact that the dress code would be strictly enforced.
 
    Section 7114(a)(2)(A) pertains to a "formal" meeting when it
 constitutes a "discussion" the issue next presented is whether it
 constituted a discussion.  Although a mere statement to employees
 setting forth agency policy, absent more, might not constitute a
 discussion, /17/ the instant case, involves substantially more than a
 mere statement of the dress code.  There was discussion involving
 employees questioning the application of the dress code, expressing
 displeasures with it and discussing the possible disciplinary actions
 for failure of compliance.  Such a meeting is analogous to the
 orientation meetings which the FLRA held to be formal discussions within
 the meaning of Section 7114(a)(2)(A) of the Statute, Department of
 Health Education and Welfare, Region IV, Atlanta, Georgia and Department
 of Health and Human Services, Region IV, Atlanta, Georgia, 5 FLRA No. 58
 (1981).  In that case new employees were given work information and
 questions were answered, but there was no evidence that there was any
 "bargaining" or that the "personnelists" had the authority to or did
 vary or change any personnel policy or general conditions of employment.
  Cf. Department of Health Education and Welfare, Region IV, Atlanta
 Georgia, etc., supra.  Similarly, Customs' further contention that there
 was no obligation to notify the Union pursuant to Section 7114(a)(2)(A)
 of the Statute because Lackey was not empowered to make any change in
 conditions of employment is rejected.
 
    I conclude, in light of the foregoing, that pursuant to Section
 7114(a)(2)(A) the March 17 meeting was a formal discussion concerning a
 "personnel policy or practice or other general condition of employment .
 . . " about which the Union was entitled to prior notice and at which
 the Union was entitled to an opportunity to be represented.
 Respondent's failure to afford NTEU the requisite notice and opportunity
 to be represented at the March 17 meeting constituted a violation of
 Section 7116(a)(1), (5) and (8) of the Statute.
 
    It is concluded that the March 19, 1980 meeting between Andrews and
 McAllister also constituted a formal discussion within the meaning of
 Section 7114(a)(2)(A) of the Statute about which NTEU was entitled to
 notice and at which it was entitled to be represented.  The subjects of
 a Section 7114(a)(2)(A) meeting are "any grievance or any personnel
 policy or practices or other general condition of employment." As
 already discussed, the dress code is a personnel policy, a practice or
 general condition of employment within the meaning of Section
 7114(a)(2)(A) of the Statute.  "Grievance" is defined in Section
 7103(a)(9) of the Statute as any complaint "(A) by any employee
 concerning any matter relating to the employment of the employee . . .
 ." This is a broad definition of the term grievances and would encompass
 McAllister's displeasure and unhappiness with the dress code.  Cf. U.S.
 Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 3
 FLRA No. 116 (1980).
 
    Respondent contends that because the "grievance" involves the
 application of the dress code to McAllister it does not have
 sufficiently broad application to be encompassed within Section
 7114(a)(2)(A) of the Statute.  On the contrary, the application and
 interpretation of the dress code with respect to McAllister would
 necessarily have bearing on its application to the other employees.
 NTEU would therefore have a very legitimate interest in being present at
 any discussion involving the dress code's application and interpretation
 with respect to McAllister.  It is the very type situation to which an
 application of Section 7114(a)(2)(A) of the Statute would be most
 appropriate.
 
    There seems to be some dispute as to whether the meeting was held at
 the request of McAllister or Andrews.  It is irrelevant at whose request
 the meeting was held.  Respondent knew the subject of the meeting, the
 dress code, and of McAllister's unhappiness with respect to the dress
 code's application.  Further Andrews actually set up and scheduled the
 meeting.  In such circumstances the identity of the person who
 originally requested the meeting would not change the fundamental nature
 of the meeting or the Union's right to notification and to be present.
 In this regard it must be noted that almost all employee grievances
 would result in meetings initiated by employees.
 
    Customs further contends that NTEU had actual notice of the March 19,
 1980 meeting and chose not to attend.  Thus, Respondent urges there was
 no failure on its part to comply with the requirements of Section
 7114(a)(2)(A) of the Statute.  Such a contention must be rejected.
 Although NTEU knew a meeting was in the offing, it had not been advised
 of the time and place of meeting.  Further, when viewed in light of
 Segars' statements to McAllister that the Union's presence would make
 Respondent more rigid, any notice to the Union could hardly be
 interpreted as an invitation to attend the meeting.  Rather, Customs
 made it quite clear the NTEU would not be welcome.  Andrews, after
 advising McAllister of the time and place of the meeting, merely advised
 NTEU that its presence was not wanted by McAllister, he did not advise
 NTEU of the time and place of the meeting.  This could hardly satisfy
 Respondent's statutory obligations.  Cf. Norfolk Naval Shipyard, supra.
 
    Accordingly NTEU was, pursuant to Section 7114(a)(2)(A) of the
 Statute, entitled to prior notice of the March 19, 1980 meeting and an
 opportunity to be present.  Customs' failure to provide the required
 notice to NTEU constituted a violation of Sections 7116(a)(1), (5) and
 (8) of the Statute.
 
    Section 7116(a)(1) of the Statute provides that it is an unfair labor
 practice for an agency to "interfere with, restrain or coerce any
 employee in the exercise by any employee of any right under this
 chapter." Section 7102 of the Statute guarantees Federal employees the
 "right to form, join or assist any labor organization . . . freely and
 without fear of penalty or reprisal, and each employee shall be
 protected in the exercise of such right."
 
    In the subject case when McAllister told Segars he wished to have his
 Union present when he met with management to discuss the dress code and
 its application to him, a formal discussion the Union had a right to
 attend.  McAllister, in seeking the assistance of his union, was
 attempting to exercise a right guaranteed by Section 7102 of the
 Statute.  Segars' reply that "she didn't know whether it was a good idea
 to have a Union representative present at the meeting between Paul
 Andrews and (McAllister) . . . it could possibly change the situation or
 make the situation more rigid," indicated that if the employee chose to
 have a Union representative present the agency would be more rigid and
 less flexible.  Such a statement would reasonably indicate to an
 employee that the agency would deal with the employee and his complaint
 more sympathetically, i.e. less rigidly, if the employee did not
 exercise his right to have a Union representative present and if the
 union did not exercise its right to be present.  It would restrain an
 employee from joining a union because to seek such a union's assistance
 would be harmful to the employee's interest.  Thus it is concluded that
 Segars' statement violated Section 7116(a)(1) of the Statute because it
 was ominous and was a veiled threat of reprisal if the employee
 exercised his protected right.  Cf. Navy Resale System, Field Support
 Office Commissary Store Group, 5 FLRA No. 42 (1981).
 
    General Counsel urges that Andrews' statement to McAllister prior to
 the March 19 meeting that Andrews did not think it was necessary that
 McAllister have a Union representative at the meeting constituted a
 violation of 7116(a)(1) of the Statute because it interfered with an
 employees right to be represented by a Union.  Andrews' statement was
 merely a statement of opinion and does not contain any threat or promise
 of benefit, implies or explicit, and it is concluded that it did not
 violate Section 7116(a)(1) of the Statute.  See Oklahoma City Air
 Logistics Center, Tinker Air Force Base, Oklahoma, 6 FLRA No. 32 (1981).
 
    General Counsel contends that Andrews' statements to McAllister at
 the March 19 meeting violated Section 7116(a)(1) of the Statute because
 it threatened McAllister with reprisals if he filed a grievance. From my
 evaluation of the evidence I conclude that Andrews' statements, although
 perhaps not so intended by Andrews, /18/ would reasonably have been
 understood and interpreted by an employee as a threat of retaliation for
 filing a grievance and a threat that the grievance system is ineffective
 in protecting employees and their rights.  Such a statement would
 necessarily, interfere with and discourage an employee from exercising
 the rights to file a grievance guaranteed by Section 7121 of the
 Statute.  Cf. Navy Resale System, Field Support Commissary Store Group,
 supra;  and San Antonio Logistics Center, Kelly Air Force Base, 5 FLRA
 No. 24 (1981).  Accordingly it is concluded that Andrews' statements at
 the March 19 meeting violated Section 7116(a)(1) of the Statute.
 
    In view of the foregoing I recommend the FLRA adopt the following
 Order.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the rules and regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, the
 Authority hereby orders that the United States Customs Service Region
 VIII, San Francisco, California shall:
 
    1.  Cease and desist from:
 
          (a) refusing to give the National Treasury Employees Union
       prior notice and the opportunity to be represented at formal
       discussions conducted Ray Lackey, Paul Andrews or any other agency
       representative which are attended by members of the bargaining
       unit represented by National Treasury Employees Union, and where
       personnel policies and practices or other general conditions of
       employment are discussed.
 
          (b) Interfering with, restraining or coercing its employees by
       making threats of reprisal because they sought representation by
       National Treasury Employees Union or because they sought to file
       grievances.
 
          (c) In any like or related manner, failing or refusing to
       comply with any provision of the Federal Service Labor-Management
       Relations Statute;
 
          (d) In any like or related manner, interfering with,
       restraining, or coercing any employee in the exercise of any right
       under the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Give the National Treasury Employees Union the opportunity
       to be represented at the formal discussions which involve the
       employees in its bargaining unit.
 
          (b) Post at United States Customs Service, Region VIII, San
       Francisco, California, 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
       Principal Regional Official and shall be posted and maintained by
       her for 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  Reasonable steps shall be taken
       by Respondent to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's rules and
       regulations, notify the Regional Director, Region IX, 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.
 
 
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  November 12, 1981
    Washington, D.C.
 
 
 
 
 
 
                                 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 give the National Treasury Employees Union
 prior notice and the opportunity to be represented at formal discussions
 conducted by Rae Lackey, Paul Andrews or any other agency representative
 and which are attended by members of the bargaining unit represented by
 National Treasury Employees Union, and where personnel policies and
 practices or other general conditions of employment are discussed.
 
    WE WILL NOT interfere with, restrain, and coerce employees in the
 exercise of their Statutory rights by threatening them with reprisal
 because they seek representation by National Treasury Employees Union or
 because they seek to file grievances.
 
    WE WILL NOT, in any like or related manner, fail or refuse to comply
 with any provision of the Federal Service Labor-Management Relations
 Statute.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce any employee in the exercise of any right under the Federal
 Service Labor-Management Relations Statute.
                                       (Activity or Agency)
 
    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 its provisions, they may communicate directly with the Regional
 Director of Region IX for the Federal Labor Relations Authority whose
 address is:  530 Bush Street, Suite 542, San Francisco, California
 94108;  and whose telephone number is (415) 556-8105.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel and the Charging Party moved to strike from
 the record Respondent's request that the Authority take "judicial
 notice" of a Judge's decision in a matter before the Authority.  In
 reaching its decisions, the Authority may, of course, take official
 notice of decisions by its Administrative Law Judges.  Therefore the
 motion to strike is denied.
 
 
    /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.  Based on these findings, the Authority agrees with the
 Judge's conclusions with respect to several alleged violations of
 section 7116(a)(1) of the Statute.
 
 
    /3/ The Respondent asserts in its exceptions that the Judge failed to
 rule on its motion to strike part of the amended complaint.  By issuing
 his decision on the merits, the Judge in effect denied the motion to
 strike those allegations from the complaint.
 
 
    /4/ Section 7116 provides, in pertinent part, as follows:
 
    Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good