National Labor Relations Board, General Counsel and National Labor Relations Board, Region 29 

 1 FLRA No. 28
                                            APRIL 27, 1979
 
 MR. BRUCE D. ROSENSTEIN
 OFFICE OF THE GENERAL COUNSEL
 NATIONAL LABOR RELATIONS BOARD
 WASHINGTON, D.C.  20570
 
                           RE:  NATIONAL LABOR RELATIONS BOARD AND 
                                ITS GENERAL COUNSEL AND NATIONAL 
                                LABOR RELATIONS BOARD, REGION 29, 
                                A/SLMR No. 1143, FLRC No. 78A-161
 
 DEAR MR. ROSENSTEIN:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW AND
 REQUEST FOR A STAY OF THE ASSISTANT SECRETARY'S DECISION, AND THE
 UNION'S OPPOSITION THERETO, IN THE ABOVE-ENTITLED CASE.
 
    IN THIS CASE, LOCAL 29, NATIONAL LABOR RELATIONS BOARD UNION (IND.)
 (THE UNION) FILED AN UNFAIR LABOR PRACTICE COMPLAINT ALLEGING THAT THE
 NATIONAL LABOR RELATIONS BOARD AND ITS GENERAL COUNSEL AND NATIONAL
 LABOR RELATIONS BOARD, REGION 29 (THE AGENCY) VIOLATED SECTION 19(A)(1)
 OF THE ORDER BY A SUPERVISOR'S INTERROGATION OF A UNION OFFICER
 REGARDING HIS REASONS FOR SIGNING A LETTER SENT BY THE UNION TO THE
 GENERAL COUNSEL OF THE AGENCY.
 
    THE ESSENTIAL FACTS, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE (ALJ),
 AND ADOPTED BY THE ASSISTANT SECRETARY, ARE AS FOLLOWS:  THE UNION, IN
 RESPONSE TO AN ANNOUNCEMENT BY REGION 29 (THE ACTIVITY) THAT AN EMPLOYEE
 WHO WAS SERVING AS AN ACTING SUPERVISOR WOULD BE RECOMMENDED FOR
 PROMOTION TO A PERMANENT SUPERVISORY POSITION, HELD A MEETING TO DISCUSS
 THE MATTER AND THEREAFTER SENT A LETTER TO THE AGENCY'S GENERAL COUNSEL
 IN WASHINGTON WHICH STATED THAT THE ACTING SUPERVISOR WAS UNQUALIFIED TO
 HOLD A SUPERVISORY POSITION.  THE LETTER WAS SIGNED BY THE FOUR MEMBERS
 OF THE UNION'S EXECUTIVE COMMITTEE.  THE ACTIVITY GAVE A COPY OF THE
 LETTER TO THE ACTING SUPERVISOR WHO, BY THAT TIME, HAD BEEN APPOINTED TO
 THE POSITION OF PERMANENT SUPERVISOR.  THE SUPERVISOR THEREAFTER MET (IN
 HER OFFICE) WITH ONE OF THE EMPLOYEES WHO HAD SIGNED THE UNION LETTER.
 SHE TOLD THE EMPLOYEE THAT SHE WAS HURT AND SURPRISED BY IT AND ASKED
 WHY THE EMPLOYEE HAD SIGNED THE LETTER.  THE EMPLOYEE INDICATED THAT HE
 HAD SIGNED THE LETTER AS A MEMBER OF THE EXECUTIVE COMMITTEE PURSUANT TO
 A VOTE OF THE UNION MEMBERSHIP RATHER THAN FOR ANY PERSONAL REASON.  THE
 UNION FILED THE COMPLAINT HEREIN UPON LEARNING OF THE FOREGOING MEETING.
 
    THE ASSISTANT SECRETARY, IN AGREEMENT WITH THE ALJ, FOUND THAT:
 
    (T)HE INTERROGATION WHICH OCCURRED IN THE INSTANT CASE, WHEREIN AN
 EMPLOYEE WAS QUESTIONED
 
    BY A SUPERVISOR WITH RESPECT TO THE EMPLOYEE'S REASONS FOR HIS
 PARTICIPATION IN UNION
 
    ACTIVITY, COULD REASONABLY BE CONSTRUED BY THE LATTER TO REFLECT AN
 INTENTION BY THE
 
    RESPONDENT TO DISCOURAGE HIM FROM ENGAGING IN PROTECTED UNION
 ACTIVITY.  CONSEQUENTLY, I AGREE
 
    WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE CONDUCT BY
 THE RESPONDENT'S
 
    SUPERVISOR, UNDER THE CIRCUMSTANCES OF THIS CASE, WAS VIOLATIVE OF
 SECTION 19(A)(1) OF THE
 
    ORDER.
 
    IN SO CONCLUDING, THE ASSISTANT SECRETARY AFFIRMED A RULING BY THE
 ALJ WHO REFUSED TO ALLOW TESTIMONY REGARDING DISCUSSIONS BETWEEN THE
 PARTIES WHICH OCCURRED AFTER THE FILING OF THE PRE-COMPLAINT CHARGE AND
 WHICH THE ALJ DEEMED RELATED TO SETTLEMENT EFFORTS.
 
    IN THE PETITION FOR REVIEW ON BEHALF OF THE AGENCY, IT IS CONTENDED,
 IN EFFECT, THAT THE ASSISTANT SECRETARY'S DECISION APPEARS ARBITRARY AND
 CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE.  IN ESSENCE, THE PETITION
 ASSERTS THAT THE ASSISTANT SECRETARY FAILED TO PROPERLY APPLY THE
 COUNCIL'S DECISION IN VANDENBERG AIR FORCE BASE, 4392D AEROSPACE SUPPORT
 GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, A/SLMR NO. 435, 3 FLRC 491
 (FLRC 74A-77 (AUG. 8, 1975), REPORT NO. 79), HIS OWN PREVIOUSLY
 PUBLISHED DECISIONS, AND PRIVATE SECTOR CASES BY FAILING TO FIND THAT
 THE CONDUCT IN ISSUE WAS ISOLATED OR DE MINIMIS IN NATURE.  IT IS
 FURTHER CONTENDED THAT THE ASSISTANT SECRETARY ERRED IN FAILING TO
 CONSIDER AN EXCEPTION TO THE ALJ'S DECISION TO THE EFFECT THAT THE
 SUPERVISOR WAS NOT ENGAGED IN ILLEGAL INTERROGATION, BUT RATHER IN A
 LEGITIMATE ATTEMPT TO RESOLVE A POTENTIAL GRIEVANCE CONCERNING HER
 ALLEGED PREJUDICE AGAINST FIELD EXAMINERS.  FINALLY, IT IS CONTENDED
 THAT THE ASSISTANT SECRETARY ERRED IN SUSTAINING THE ALJ'S REFUSAL TO
 PERMIT THE INTRODUCTION OF TESTIMONY CONCERNING THE SUPERVISOR'S
 SUBSEQUENT APOLOGIES AND ASSURANCES TO THE EMPLOYEE AND THE UNION ON THE
 GROUND THAT SUCH TESTIMONY INVOLVED SETTLEMENT EFFORTS.
 
    IN THE AUTHORITY'S OPINION, THE PETITION FOR REVIEW OF THE ASSISTANT
 SECRETARY'S DECISION DOES NOT MEET THE REQUIREMENTS OF SECTION 2400.2 OF
 THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE SECTION
 2411.12 OF THE COUNCIL'S RULES.  THAT IS, IT DOES NOT APPEAR THAT THE
 ASSISTANT SECRETARY'S DECISION WAS ARBITRARY AND CAPRICIOUS OR PRESENTS
 A MAJOR POLICY ISSUE.
 
    SPECIFICALLY, WITH RESPECT TO THE CONTENTION THAT THE ASSISTANT
 SECRETARY FAILED TO APPLY THE COUNCIL'S DECISION IN VANDENBERG (SUPRA P.
 2), HIS OWN PRIOR DECISIONS AND PRIVATE SECTOR CASES CONCERNING ISOLATED
 OR DE MINIMIS CONDUCT, THE APPEAL DOES NOT CONTAIN ANY BASIS TO SUPPORT
 AN ASSERTION THAT THE ASSISTANT SECRETARY'S DECISION HEREIN WAS
 INCONSISTENT EITHER WITH APPLICABLE PRECEDENT OR WITH THE PURPOSES AND
 POLICIES OF THE ORDER.  MOREOVER, NO BASIS FOR AUTHORITY REVIEW IS
 PRESENTED WITH RESPECT TO THE CONTENTION THAT THE SUPERVISOR WAS MERELY
 ATTEMPTING TO RESOLVE A POTENTIAL GRIEVANCE.  THUS, IN THE AUTHORITY'S
 VIEW, SUCH CONTENTIONS CONSTITUTE ESSENTIALLY MERE DISAGREEMENT WITH THE
 ASSISTANT SECRETARY'S CONCLUSION, BASED ON THE RECORD EVIDENCE, THAT THE
 SUPERVISOR'S CONDUCT IN THE CIRCUMSTANCES OF THIS CASE WAS VIOLATIVE OF
 SECTION 19(A)(1) OF THE ORDER.  FINALLY, AS TO THE ASSERTION THAT
 EVIDENCE CONCERNING THE SUPERVISOR'S APOLOGIES AND ASSURANCES TO THE
 EMPLOYEE AND THE UNION WERE IMPROPERLY EXCLUDED, IN OUR VIEW SUCH
 ASSERTION CONSTITUTES MERE DISAGREEMENT WITH THE ASSISTANT SECRETARY'S
 FINDING, PURSUANT TO HIS REGULATIONS, THAT THE PROFFERED EVIDENCE
 INVOLVED SETTLEMENT EFFORTS AND THEREFORE SHOULD NOT BE CONSIDERED.
 
    SINCE IT DOES NOT APPEAR THAT THE ASSISTANT SECRETARY'S DECISION IS
 ARBITRARY AND CAPRICIOUS OR PRESENTS A MAJOR POLICY ISSUE, THE APPEAL
 FAILS TO MEET THE REQUIREMENTS FOR REVIEW AS SET FORTH IN SECTION 2400.2
 OF THE AUTHORITY'S TRANSITION RULES WHICH INCORPORATES BY REFERENCE
 SECTION 2411.12 OF THE COUNCIL'S RULES OF PROCEDURE.  ACCORDINGLY, THE
 PETITION FOR REVIEW IS HEREBY DENIED AND THE REQUEST FOR A STAY IS ALSO
 DENIED.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  W. G. KOCOL
 
    NLRBU
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OF
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.