24:0653(66)CA - Defense Property Disposal Region, Ogden, UT and Defense Property Disposal Office, Camp Pendleton, Oceanside, CA and Leighton Thomas Leavitt -- 1986 FLRAdec CA
[ v24 p653 ]
The decision of the Authority follows:
24 FLRA No. 66 DEFENSE PROPERTY DISPOSAL REGION OGDEN, UTAH AND DEFENSE PROPERTY DISPOSAL OFFICE (DPDO), CAMP PENDLETON, OCEANSIDE, CALIFORNIA Respondent and LEIGHTON THOMAS LEAVITT, An Individual Charging Party Case No. 8-CA-50227 DECISION AND ORDER I. Statement of the Case This case is before the Authority based on exceptions to the attached Administrative Law Judge's Decision filed by the Defense Property Disposal Region -- Ogden (DPDR) and the Defense Property Disposal Office -- Pendleton (DPDO) (Respondent). The General Counsel filed an opposition to the exceptions. The complaint, as amended, alleged that Respondent violated section 7116(a)(1) of the Statute by engaging in surveillance and/or monitoring of a bargaining unit employee because he engaged in representational activities. II. Background The facts, more fully set out in the Judge's Decision, indicate that the Charging Party, Leighton Thomas Leavitt, was employed by Respondent at the Pendleton DPDO until April 1985 as a preceiver, Sorter, Classifier. The Pendleton DPDO receives various materials from units at Pendleton and other locations which it stores and subsequently arranges for disposition. Some of the materials coming to the facility are hazardous substances. From late December 1984 until April 1985 Leavitt served as Shop Steward for the Ogden Regional Council of AFGE Locals (the Council), which represents various employees at the Pendleton DPDO. During this period he filed several unfair labor practice charges against Respondent and several "Notice(s) of Alleged Unsafe or Unhealthful Working Conditions" with his foreman. The circumstances giving rise to this action occurred on March 11, 1985, when Leavitt noticed unit employees loading allegedly hazardous materials onto military vehicles, which in Leavitt's view violated the collective bargaining agreement between the Council and Respondent. Leavitt went to a roadway adjacent to the storage site during his afternoon break and took photographs of the activity in the site and returned to work. Leavitt's actions were observed by another employee who informed Leavitt's supervisor, Mac Bojorquez. Bojorquez immediately telephoned Base Security to inquire whether Leavitt's actions constituted a breach of security regulations since Leavitt was observed near a high security area where taking photographs was restricted. The officer assigned to security duty, Marine Sergeant Jones, informed Bororquez that he did not think that photographs were permitted on the site, but he would have to check the regulations to make sure. Meanwhile Jones told Staff Sergeant Phillips of his conversation with Bojorquez. Phillips decided to go to the DPDO to investigate the matter. Upon arriving at Leavitt's work site, Phillips questioned Leavitt about the incident. Leavitt denied taking pictures or having a camera. Leavitt did admit to having pretended to take pictures of the disposal site. When Phillips asked Leavitt why he was taking pictures, Phillips testified that Leavitt "said something about being a member of the union." Phillips told Leavitt that he had nothing to do with this "field" (presumably referring to labor relations) but Leavitt could explain to the Military Police. Phillips then phoned the Base Military Police and informed them that they should handle the matter. However, because of the unavailability of a Military Police Investigator, Phillips was requested by the Military Police to "observe" Leavitt and ask Leavitt not to leave the base. Phillips decided to wait for the Military Police Investigator and was talking to Leavitt at his desk when Commander of the Guard Jones arrived with his driver, another guard. The guards remained within 25 feet of Leavitt when he was at his desk. Leavitt continued to work, sometimes walking around but closely followed by Jones or Phillips. Jones asked Leavitt whether he had taken pictures, and Leavitt indicated that he had only pretended to take pictures. Leavitt gave no further explanation of his actions. When Leavitt's workday ended at 3:30 p.m., he asked the guards if he could leave to pick up a "carpooler," and received no response. He then went to his car, which was blocked in its space by the security guard's vehicle. Jones denied knowing that the security vehicle was blocking Leavitt's car. Shortly after 4:00 p.m., Leavitt went to his car, Jones moved the security vehicle, and Leavitt left. After 4:15 p.m., Bojorquez received a call from Colonel Kirkham who related that research had disclosed that photography was prohibited in numerous areas in Camp Pendleton, but no such restriction applied to the DPDO. Bojorquez then told Phillips that the DPDO would take care of the situation and Phillips telephoned the Military Police to let them know the state of affairs after which the security guards left the DPDO. Before the Judge, Jones testified that he was perplexed as to why anyone would want to pretend to take pictures and was concerned about possible espionage or sabotage. Leavitt testified that he took the photographs to record alleged violations of Occupational Safety and Health Administration (OSHA) requirements and to show that the agency had not fulfilled its commitments to OSHA regarding the hazardous waste. Leavitt also asserted that he acted consistent with Article 15, Section 8 of the parties' collective bargaining agreement, which provides: In the course of performing normally assigned work, employees acting in the capacity of Union representatives will be alert to observe unsafe practices, equipment and conditions . . . . If an unsafe or unhealthy condition is observed, the representative should report to the cognizant immediate supervisor. If the safety question is not settled by the representative and the immediate supervisor, or the DPDO . . . , the representative will refer the matter promptly to . . . the Region Safety and Health Manager who will act on behalf of the Employer(s). III. Administrative Law Judge's Decision The Judge found that Leavitt was engaged in activity protected by the Statute when he took photographs of the disposal site. The Judge rejected Respondent's contention that it lacked knowledge that Leavitt was engaged in union activity when he photographed the disposal site and found that Leavitt's actions on March 11, 1985, reasonably should have alerted foreman Bojorquez that Leavitt was engaged in union activity. The Judge concluded that under the circumstances, Leavitt's being kept under surveillance by security guards for almost two hours constituted interference, restraint and coercion of Leavitt for having engaged in conduct protected by the Statute. The Judge found that the agency's actions, by their very nature, would tend to intimidate and inhibit a shop steward from engaging in activity protected by the Statute. IV. Positions of the Parties The Respondent excepts to the Administrative Law Judge's decision that "there does not appear to be any dispute that Leavitt was engaged in activity protected by the Statute when he took photographs of the disposal site." Respondent argues that Leavitt's conduct was in violation of the parties' agreement and, therefore, was not protected by the Statute. Respondent also objects to the Judge's decision that circumstances should have alerted Respondent's foreman Bojorquez that Leavitt was engaged in union activity; the Respondent argues that employees of the DPDO are permitted to take photographs only with the express consent of the Defense Property Disposal Officer and Leavitt failed to notify the appropriate authority that he was going to take photographs on behalf of the union. Finally, Respondent excepts to the Administrative Law Judge's findings that control over the DPDO and security guards' activities remained with foreman Bojorquez at all times and that the security guards' belief that regulations prohibited taking pictures at the DPDO and their actions were not reasonable. The General Counsel filed a brief in response to the Respondnet's exceptions in which it agreed with the Judge's findings and recommended Order. V. Analysis The question here is whether the Respondent's conduct in observing Leavitt for a two-hour period tended to interfere with, restrain, or coerce Leavitt in the exercise of his rights under the Statute. We find first, and in agreement with the Judge, that Leavitt's conduct in photographing what he viewed as a possible contract violation was protected by the Statute. The Authority has previously found that protected activity under section 7102 of the Statute encompasses an employee's right to conduct an investigation on his own time to support a grievance or in contemplation of filing a grievance. Department of Defense Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy), 21 FLRA No. 103 (1986); Department of Justice, Bureau of Prisons, Federal Correctional Institution, Butner, North Carolina, 18 FLRA No. 100 (1985). Leavitt's action is protected by the Statute because the photographs were taken in contemplation of filing grievances relating to the Respondent's noncompliance with safety requirements and its alleged violation of the collective bargaining agreement. /1/ However, in the circumstances of this case, we find that the Respondent's subsequent conduct in observing Leavitt was not a violation of the Statute. Rather, the Respondent's action was based on security considerations. The record indicates that Leavitt's actions took place within the confines of a military installation and were subject to certain restrictions, including restrictions on taking photographs, imposed by the military host activity on the tenant activity employing him. The restrictions were imposed to secure the installation and to prevent sabotage or espionage. The record further shows that Leavitt was suspected of taking photographs in a prohibited area. Even though Bojorquez did not witness the incident, when he received the report of photographing, he called Base Security because of a possible security breach. The guards who subsequently observed Leavitt were doing so pending a determination on the security breach issue. Under these circumstances, the Respondent's conduct was not unreasonable and did not interfere with Leavitt's rights under the Statute or in any other way violate section 7116(a)(1) of the Statute. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and thus affirms those rulings. We have considered the Judge's decision, the positions of the parties and the entire record, and adopt the Judge's findings and conclusions only to the extent consistent with the above. We conclude that the Respondent did not violate section 7116(a)(1) of the Statute by "monitoring" Leavitt's activity after he was observed taking photographs of the facility and by questioning Leavitt about a suspected breach of security. Accordingly, the complaint shall be dismissed in its entirety. /2/ ORDER The complaint in Case No. 8-CA-50227 is hereby dismissed. Issued, Washington, D.C., December 19, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CA-50227 DEFENSE PROPERTY DISPOSAL REGION, OGDEN, UTAH AND DEFENSE PROPERTY DISPOSAL OFFICE (DPDO), CAMP PENDLETON, OCEANSIDE, CALIFORNIA Respondent and LEIGHTON THOMAS LEAVITT Charging Party Thomas E. Fehr, Esq. For the Respondent Jonathan S. Levine, Esq. For the General Counsel Before: SALVATORE J. ARRIGO Administrative Law Judge DECISION Statement of the Case This case arose 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. Upon an unfair labor practice charge filed by Leighton Thomas Leavitt, an individual, against the above captioned Respondent, /3/ the General Counsel of the Authority, by the Regional Director for Region VIII, issued a Complaint and Notice of Hearing alleging Respondent violated section 7116(a)(1) of the Statute by engaging in surveillance and/or monitoring a bargaining unit employee because of his having engaged in representational activities. A hearing on the Complaint was conducted in Vista, California at which Respondent and the General Counsel were represented by counsel /4/ and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for the General Counsel and counsel for Respondent and have been carefully considered. Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following: Findings of Fact At all times material herein various of Respondent's employees located at the Camp Pendleton facility of the Defense Property Disposal Office (herein DPDO) have been represented for collective bargaining purposes by the Ogden Regional Council of AFGE Locals (herein called the Council). The Charging Party, Leighton Thomas Leavitt, was employed by Respondent at the Pendleton DPDO for approximately four years until being transferred to another facility in April 1985. While at Pendleton Leavitt was employed as a Receiver, Sorter, Classifier. The Pendleton DPDO receives various materials from units at Pendleton and other locations which it stores and subsequently arranges for disposition. Some of the materials coming to the facility are hazardous substances. From late December 1984 until sometime in April 1985 Leavitt served as Shop Steward for the Council at the Pendleton DPDO. During this period Leavitt filed five unfair labor practice charges against Respondent and five "Notice(s) of Alleged Unsafe or Unhealthful Working Conditions" with his foreman. Even before becoming Shop Steward Leavitt was concerned with health and safety in the work place. Thus, a complaint from Leavitt to the Occupational Safety and Health Administration (OSHA) gave rise to an inspection of the Pendleton DPDO by OSHA in September 1984. /5/ Part of OSHA'S findings reported on December 28, 1984 indicated: that the Pendleton DPDO had changed its procedures for handling hazardous substances in that hazardous materials would no longer be handled by DPDO employees; a contractor was to remove all such materials within a week, and; thereafter hazardous materials would not be sent to the Pendleton DPDO. Subsequently Leavitt observed that Respondent did not fulfill its commitments made to OSHA. Thus, hazardous material continued to be stored at the DPDO. On March 11, 1985 Leavitt noticed unit employees loading the hazardous material onto military vehicles. In his opinion management's conduct in this regard was violative of the collective bargaining agreement between the Council and Respondent which was in effect at all times material herein and required compliance with OSHA standards. /6/ Accordingly, Leavitt went to a roadway adjacent to the storage site around 2:00 p.m. during his afternoon break and took some photographs of the activity in the site and returned to work. Leavitt's actions had been observed by another employee, Randall Beck, who informed Leavitt's supervisor, Mac Bojorquez, Property Management Foreman, that he saw Leavitt about 30 to 40 feet away from the storage site apparently taking pictures of the men in the storage site loading the hazardous material onto a truck. /7/ Foreman Bojorquez immediately telephoned Base Security and spoke to U.S. Marine Corps Staff Sergeant David Jones who was the Commander of the Guard that day. Bojorquez informed Jones that Leavitt was observed taking pictures and wished to know if this constituted a breach of security regulations since Bojorquez was aware that purchasers of DPDO equipment who came to the site were required to have written authorization from the Base Commanding Officer before taking pictures. Jones informed Bojorquez that he didn't think anyone was permitted to take photographs without written authorization. /8/ Bojorquez then talked to Leavitt and told him that he had been observed taking pictures of the site and had called Security and inquired as to regulations concerning photographing. Bojorquez informed Leavitt that he was not to be taking pictures much less being near the hazardous area because his assignment was working in the warehouse. Foreman Bojorquez then called Defense Property Disposal Region (DPDR) in Ogden and conveyed what had thus far transpired concerning Leavitt to U.S. Air Force Colonel Thomas Kirkham, commander of DPDR, and Security Officer Chuck Lambert. After Bojorquez told Lambert of having been told by the Security Guard office that regulations against taking pictures existed, Lambert indicated he would call someone else on the base about this matter. Thereafter, according to Bojorquez, he remained by his telephone in the event Colonel Kirkham called and, although he was aware when security guards arrived, he did not know of their conduct at the DPDO, infra. Meanwhile Commander of the Guard Jones told Guard Officer Staff Sergeant William Phillips of his conversation with Bojorquez. Phillips decided to go to the DPDO to investigate the matter and arrived at the warehouse shortly after 2:15 p.m. on that same day. /9/ Phillips testified when he arrived at the DPDO Bojorquez told him that he saw Leavitt taking pictures of the disposal site. From Bojorquez's description of where Leavitt was standing when he took the pictures Phillips concluded there would have been a clear view of the Pendleton airfield and this concerned Phillips. /10/ Guard Officer Phillips then went to Leavitt who was at his work desk in the receiving area. /11/ In response to Phillips' questions, Leavitt denied taking pictures or having a camera. However, Leavitt did admit to having pretended to take pictures of the disposal site. Phillips left Leavitt and went to Bojorquez's work site and told him of Leavitt's denial. Bojorquez insisted that Leavitt had a camera and Phillips responded that he did not have the right to make a search. Phillips went back to Leavitt's work area where Leavitt was standing by a doorway. Phillips related to Leavitt that Bojorquez said he had a camera and was taking pictures and Phillips asked Leavitt why he was taking pictures. Leavitt then said something about being a member of the Union and began talking about having cancer. /12/ Phillips indicated he had nothing to do with this "field" but would let Leavitt explain to the military police. Phillips then telephoned the Base Military Police and informed them they should handle the matter. However, the Military Police investigator was not available at the time. Accordingly, Military Police requested that Phillips "observe" Leavitt and ask Leavitt not to leave the base. Guard Officer Phillips decided to wait for the Military Police investigator and was talking to Leavitt at his desk when Commander of the Guard Jones arrived around 2:40 p.m. with his driver, another Guard. Phillips told Leavitt he should wait for the Military Police and related the stare of affairs to Jones. The three guards remained in Leavitt's work area frequently very close by but always within 25 feet from Leavitt when he was at his desk. /13/ Leavitt continued to work, sometimes walking around but always closely followed by either Phillips or Jones. /14/ After coming on the scene Jones questioned Leavitt at his desk as to whether he had taken pictures and Leavitt indicated he had only pretended to take pictures. Jones acknowledged that when Leavitt left his desk to go to other areas, he followed Leavitt "trying to get some answers." He further testified he was perplexed as to why anyone would want to pretend to take pictures and was concerned about possible espionage or sabotage. Leavitt gave no further explanation of his actions but told Jones about various aspects of his work. In any event, it is apparent that Leavitt was kept under open surveillance at all times the security guard was at the DPDO. Leavitt's work day ended at 3:30 p.m. Around that time Leavitt told the security guards he had a "carpooler" to pick up and asked if he could leave but received no response. He then went to the loading dock where he observed that his automobile was blocked in its parking space by the security guard's vehicle. /15/ Shortly after 4:00 p.m. Leavitt went to his car, Jones moved the security vehicle and Leavitt left. After 4:15 p.m. Foreman Bojorquez received a telephone call from Colonel Kirkham who related that research into the matter disclosed that although photography was prohibited in numerous areas at Camp Pendleton, there was no such restriction applicable to the DPDO. Upon receiving this information Bojorquez told Sergeant Phillips that the DPDO would take care of the situation and Phillips telephoned the Military Police to let them know the state of affairs after which the security guards left the DPDO. Discussion and Conclusions Counsel for the General Counsel essentially contends that by having Shop Steward Leavitt placed in custody and/or monitoring his activities for having engaged in activities protected by the Statute, Respondent coerced and restrained Leavitt in the performance of his representational duties in violation of section 7116(a)(1) of the Statute. Counsel for Respondent contends no violation of the Statute has been established since: Respondent had no knowledge that Leavitt was engaged in union activity; no agency relationship exists between Respondent and the security guards and; even if the conduct of the security guards was attributable to Respondent, such conduct was reasonable under the circumstances and was therefore privileged. There does not appear to be any dispute that Leavitt was engaged in activity protected by the Statute when he took photographs of the disposal site and I so find. Thus, Leavitt was the Shop Steward; Respondent had made certain commitments to OSHA regarding the storage and disposal of hazardous waste; Article 15 of the collective bargaining agreement addressed the matter of safe and healthful working conditions and compliance with OSHA standards; and Leavitt's photographing the disposal site was related to the enforcement of Article 15 of the agreement. I reject Respondent's contention that it lacked knowledge that Leavitt was engaging in union activity when he photographed the disposal site and therefore no violation of the Statute can stand. Respondent cannot deny knowledge of the terms of its collective bargaining agreement, specifically the section relating to OSHA requirements, and of the OSHA inspection, supra. Moreover, Respondent was also well aware that Leavitt was the Shop Steward and was particularly concerned with health and safety in the work place, matters of normal union interest. /16/ Thus, Leavitt's actions on March 11, 1985 with regard to the hazardous material, in these circumstances, reasonably should have alerted foremen Bojorquez that Leavitt was engaged in union activity. Indeed, if Bojorquez was in doubt of whether Leavitt was photographing the removal of hazardous waste at the DPDO for personal reasons or for union related reasons, he could have asked Leavitt, but he did not. Accordingly, in these circumstances knowledge of union activity must be inferred. I also conclude that in the circumstances herein Shop Steward Leavitt's being kept under open surveillance by security guards for almost two hours constituted interference, restraint and coercion of Leavitt for having engaged in conduct protected by the Statute. Employee Beck, who observed the photographing by Leavitt, informed foreman Bojorquez that Leavitt was taking a picture of the disposal site. Bojorquez was aware of Leavitt's concern as Shop Steward over health and safety matters and that Leavitt was the person who complained to OSHA over hazardous materials at the site. Although Beck testified that from Leavitt's position when taking pictures he could not have been photographing the airfield, he did not convey this fact to Bojorquez. However, neither did Bojorquez inquire of Beck as to what Leavitt could observe from his position. True, Bojorquez did not ask the security guards to investigate the matter and was given information from Sergeant Jones that subsequently appeared to be incorrect as to regulations prohibiting photography on the base. But when security guard Sergeant Phillips investigated the matter Bojorquez, perhaps inadvertently, conveyed that it was he who observed the photographing and misled Phillips into believing that from where Leavitt was seen with a camera he could have been photographing the airfield. Phillips acknowledged that this triggered his concern and prompted his continued inquiry into the matter. Thus, it was Bojorquez's failure to make a thorough inquiry of Beck as to the complete circumstances of Leavitt's actions and misleading Phillips which set into motion a two hour episode which might have been disposed of in two minutes if Sergeant Phillips was satisfied that photographing the airfield was not involved in the incident. I reject Respondent's contentions that the security guards' conduct cannot be attributed to Respondent. While foreman Bojorquez did not ask the security guards to investigate the matter, he provided them with the misleading information which prompted the investigation and was aware of their continued presence at the DPDO and with due diligence could have observed the nature and extent of their activities. Further, it is clear from the record that control over the DPDO and the security guards' activities remained with Bojorquez at all times. Thus, when Bojorquez, after being told by his Commander that Respondent concluded there were no regulations against Leavitt's activities, informed Sergeant Phillips that DPDO would handle the matter, the security guards ceased their inquiry and departed. In my view the facts herein demonstrate that during this incident Respondent retained sufficient control over the activities of the security guards to have created an agency relationship which cannot now be denied. Nor do I find that the security guards' belief that regulations prohibited taking pictures at the DPDO and their actions with regard to Leavitt were reasonable under the circumstances thereby precluding a finding of violation of the Statute. Leavitt's denial of having taken pictures may well have exacerbated the situation, but this is speculative. However, as stated above, Respondent ultimately concluded Leavitt engaged in no prohibited conduct and accordingly Leavitt should not have been questioned by the security guards or have had his actions monitored from the very beginning. Indeed, it was Respondent's misleading information to Sergeant Phillips and failure to know which gave rise to a course of events which never should have occurred. In such circumstances, the security guards conduct may not be regarded as reasonable and thereby serve to excuse actions which by their very nature would tend to intimidate and inhibit a shop steward from engaging in activity protected by the Statute. In view of the entire foregoing I conclude Respondent, by the conduct described herein, violated section 7116(a)(1) of the Statute and recommend the Authority issue the following: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Defense Property Disposal Region, Ogden, Utah and Defense Property Disposal Office (DPDO), Camp Pendleton, Oceanside, California shall: 1. Cease and desist from: (a). Monitoring the actions of and keeping under surveillance Leighton Thomas Leavitt, or any other employee, for engaging in union representational activities. (b). In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a). Post at its Camp Pendleton, California DPDO copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be posted and maintained by him 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 insure that such Notices are not altered, defaced, or covered by any other material. (b). Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ SALVATORE J. ARRIGO Administrative Law Judge Dated: April 3, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Respondent's contention that Leavitt's activity violated the parties' collective bargaining agreement should be resolved through the parties' negotiated grievance and arbitration procedures. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 23 FLRA No. 62 (1986). (2) In view of this decision, we find it unnecessary to address the Agency's remaining exception. (3) The Respondent appears as amended at the hearing. (4) The Charging Party was present throughout the hearing but made no appearance in a representative capacity. (5) Respondent was aware of Leavitt's complaint to OSHA. (6) Article 15, Section 1A of that agreement provides: "The Employer(s) will, to the extent of its authority, provide and maintain safe and healthful working conditions for all employees. Safe and healthful working and conditions will be determined in accordance with the definitions and standards contained in Section 19 of the Occupational Safety and Health Act (OSHA), in Executive Order 12196, and in implementing regulations and directives." (7) The storage site is in close proximity to Camp Pendleton airfield. Beck testified that from Leavitt's position while photographing, it was not possible for him to be taking a picture of the airfield. This fact however was not conveyed to Bojorquez. (8) Jones testified he didn't have time to specifically check the applicable regulations. (9) When he arrive, Bojorquez was talking on the phone with Security Office Lambert. Bojorquez turned the phone over to Phillips who also talked with Lambert. The record does not disclose the content of this conversation. (10) Leavitt testified that while there were no signs or regulations against taking pictures around the DPDO or at Camp Pendleton in general, he understood some locations around the airfield were "posted". (11) The following account of what transpired is essentially a composite of credited portions of the testimony of Leavitt, Phillips and Jones. I do not credit the entire testimony of any of these witnesses, each of whom was at times vague, implausible, self contradictory, inclined to exaggerate and give testimony in a self serving manner. In addition, I was not particularly impressed with the demeanor of any of these witnesses. (12) Leavitt testified he had bladder cancer. In any event, Leavitt's testimony does not reveal that he attempted to explain that his actions were in any way related to his Union membership or functions as Shop Steward. (13) Another employee was also working in Leavitt's work area. (14) On one occasion Leavitt went to a bathroom and was followed to the door by Jones who remained outside. (15) Jones denied knowing that the security vehicle was blocking Leavitt's automobile. (16) I do not find the fact that Leavitt was also concerned about his personal health in these circumstances to be significant. 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT monitor the actions of and keep under surveillance Leighton Thomas Leavitt, or any other employee, for engaging in union representational activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.