[ v01 p943 ]
01:0943(108)CA
The decision of the Authority follows:
1 FLRA No. 108
U.S. CUSTOMS SERVICE,
REGION IV,
MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Complainant
Assistant Secretary
Case No. 40-8733(CA)
DECISION AND ORDER
ON APRIL 6, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER. THEREAFTER, THE RESPONDENT
FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF THE REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 4471, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE -- -- -- -
CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, SHALL:
1. CEASE AND DESIST FROM:
(A) MAKING DISPARAGING OR DEMEANING REMARKS TO EMPLOYEES ABOUT THE
NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION.
(B) DISCRIMINATING AGAINST CLARENCE DEDECKER IN ANY MANNER WITH
REGARD TO HIRE, TENURE, PROMOTION, ASSIGNMENT 1911 OVERTIME, OR OTHER
CONDITIONS OF EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
ACTIVITIES ON BEHALF OR THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY
OTHER LABOR ORGANIZATION.
(C) IN ANY LIKE OF RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
(A) MAKE CLARENCE DEDECKER WHOLE FOR ANY LOSS OF BACK PAY OR
DIFFERENTIAL WHICH HE WOULD HAVE EARNED FOR 1911 OVERTIME DURING THE
PERIOD NOVEMBER 4 TO DECEMBER 27, 1977, CONSONANT WITH APPLICABLE LAW,
REGULATIONS, AND DECISIONS OF THE COMPTROLLER GENERAL.
(B) POST AT ALL U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA,
FACILITIES AND INSTALLATIONS 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
REGIONAL COMMISSIONER AND 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. THE REGIONAL COMMISSIONER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY OTHER MATERIAL.
(C) 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.
ISSUED, WASHINGTON, D.C., SEPTEMBER 13, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /2/
NOTICE OF ALL EMPLOYEES 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 MAKE DISPARAGING REMARKS TO EMPLOYEES ABOUT THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT DISCRIMINATE AGAINST CLARENCE DEDECKER IN ANY MANNER WITH
REGARD TO HIRE, TENURE, PROMOTION, ASSIGNMENT OF 1911 OVERTIME, OR OTHER
CONDITIONS OF EMPLOYMENT, IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
ACTIVITIES ON BEHALF OF THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY
OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL MAKE CLARENCE DEDECKER WHOLE FOR ANY LOSS OF BACK PAY OR
DIFFERENTIAL WHICH HE WOULD HAVE EARNED FOR 1911 OVERTIME DURING THE
PERIOD NOVEMBER 4 TO DECEMBER 7, 1977, CONSONANT WITH APPLICABLE LAW,
REGULATIONS, AND DECISIONS OF THE COMPTROLLER GENERAL.
. . .
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST 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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA, GEORGIA
30309, AND WHOSE TELEPHONE NUMBER IS: (404) 881-4237.
MARC L. BARBAKOFF, ESQUIRE
ASSISTANT REGIONAL COUNSEL
OFFICE OF THE REGIONAL COUNSEL
U.S. CUSTOMS SERVICE-- REGION IV
99 S.E. FIFTH STREET
MIAMI, FLORIDA 33131
FOR THE RESPONDENT
LAWRENCE K. G. POOLE, ESQUIRE
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 430
2801 BUFORD HIGHWAY
ATLANTA, GEORGIA 30329
FOR THE COMPLAINANT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON MARCH 24, 1978,
AND AN AMENDED COMPLAINT FILED ON JULY 3, 1978, BY THE NATIONAL TREASURY
EMPLOYEES UNION (NTEU) (HEREINAFTER SOMETIMES CALLED THE COMPLAINANT OR
UNION), AGAINST THE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA
(HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY).
THE AMENDED COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
VIOLATED SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER (1) WHEN
CERTAIN DISPARAGING COMMENTS WERE MADE ABOUT THE NTEU, ON OR ABOUT
OCTOBER 15, 1977, AND (2) BY NOT ASSIGNING THE UNION CHAPTER
SECRETARY-TREASURER TO SPECIAL OVERTIME AFTER NOVEMBER 1977 BECAUSE OF
HIS UNION ACTIVITIES. THE RESPONDENT DENIED THE ALLEGATIONS.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN ATLANTA,
GEORGIA. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS HAVE BEEN RECEIVED FROM
BOTH PARTIES WHICH WERE MOST HELPFUL AND DULY CONSIDERED.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN THE NATIONAL TREASURY EMPLOYEES UNION
(NTEU) HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL UNIT
EMPLOYEES IN THE U.S. CUSTOMS SERVICE ATTACHED TO REGION IV, MIAMI,
FLORIDA. THE U.S. CUSTOMS SERVICE, PORT OF ATLANTA, IS A PART OF REGION
IV.
CLARENCE DEDECKER WAS HIRED BY THE U.S. CUSTOMS SERVICE IN JANUARY
1973 AS A NARCOTICS DETECTOR DOGHANDLER. AFTER ATTENDING DOGHANDLING
SCHOOL, MR. DEDECKER WAS ASSIGNED TO THE PORT OF ATLANTA, WHICH HAD
SIXTEEN EMPLOYEES, TWO SUPERVISORS, AND THREE PART-TIME EMPLOYEES. (TR.
14). AT THIS TIME THE UNION WAS NOT ACTIVE. (TR. 14, 15, 97, 123).
FROM AT LEAST JANUARY 4, 1976 THROUGH NOVEMBER 1, 1977, MR. DEDECKER
REGULARLY WORKED 1911 OVERTIME ASSIGNMENTS, PERFORMING INSPECTIONAL WORK
UNRELATED TO HIS DOG-HANDLING DUTIES. (COMPLAINANT'S EX. 2, 3). FOR
THE MONTH OF OCTOBER 1977, MR. DEDECKER EARNED APPROXIMATELY $402.00 IN
1911 OVERTIME. (COMPLAINANT'S EX. 3). 1911 OVERTIME IS OVERTIME
PERFORMED BY CUSTOMS INSPECTION PERSONNEL IN ORDER TO SERVICE CARRIERS.
THE CARRIERS ARE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE OVERTIME,
AND THE GOVERNMENT PAYS THE INSPECTORS. (TR. 182-183). CUSTOMS
INSPECTORS ARE THE FIRST PERSONNEL UTILIZED FOR 1911 OVERTIME
ASSIGNMENTS, BUT, WHERE NECESSARY, OTHER TRAINED AND QUALIFIED
PERSONNEL, SUCH AS MR. DEDECKER, ARE USED.
IN LATE 1976, MR. DEDECKER WAS ELECTED SECRETARY-TREASURER OF CHAPTER
177, NTEU, AND TOOK STEPS TO ACTIVATE THE UNION. (TR. 15-16). HE
RECRUITED FIVE NEW MEMBERS, POSTED AND DISTRIBUTED LITERATURE, AND, AS
PART OF A NTEU EFFORT TO PREVENT THE MERGER OF THE FEDERAL RETIREMENT
PLAN WITH SOCIAL SECURITY, SECURED OVER 500 SIGNATURES ON A PETITION.
(TR. 19-21). MR. DEDECKER'S ACTIVITIES ON BEHALF OF THE UNION WERE
GENERALLY KNOWN TO MANAGEMENT. MR. DEDECKER ORGANIZED THE FIRST
GENERAL UNION MEETING ON OCTOBER 1, 1977, WHERE HIS PROPOSALS THAT THE
UNION BUY ITS OWN BULLETIN BOARD AND SCHEDULE ANOTHER MEETING IN LATE
OCTOBER IN WHICH THE UNION ATTORNEY SHOULD BE INVITED TO SPEAK ABOUT
EMPLOYEES' RIGHTS, WERE APPROVED. (TR. 16-17, 28).
SHORTLY THEREAFTER, MR. DEDECKER AND CHAPTER VICE-PRESIDENT
MARCANTONIO PURCHASED A UNION BULLETIN BOARD DURING THEIR LUNCH HOUR.
WHEN MR. DEDECKER ASKED MR. KENNETH A. ANDERBERG, PORT DIRECTOR, WHERE
THE BULLETIN BOARD COULD BE PLACED, MR. ANDERBERG REPLIED, "BACK THERE
BY THE DOG." MR. DEDECKER'S DOG WAS KEPT IN A FIRE EXIT AREA SO THAT HE
WOULD NOT HAVE CONTACT WITH PEOPLE. (TR. 18). HOWEVER, IN SUBSEQUENT
CONVERSATION CONCERNING THE PLACEMENT OF THE UNION BULLETIN BOARD, MR.
ANDERBERG SUGGESTED THAT IT BE PLACED ON THE OPPOSITE WALL FROM THE
OFFICE BULLETIN BOARD, AND THIS WAS ACCEPTED. (TR. 171).
IN 1971 WHAT WAS TO BECOME AN OFFICE TRADITION WAS ESTABLISHED BY
PORT DIRECTOR ANDERBERG AND CHIEF INSPECTOR PEACOCK WHEREBY MANY OF THE
OFFICE PERSONNEL WOULD GO TO COFFEE TOGETHER IN THE MORNING ON A REGULAR
BASIS. (TR. 165, 201). THE PORT DIRECTOR, CHIEF INSPECTOR, MAIL
TECHNICIAN, AND ANY INSPECTORS ASSIGNED TO THE DOWNTOWN OFFICE WOULD
USUALLY ATTEND. (TR. 23). TESTIMONY REVEALED THAT THOSE COFFEE BREAKS
TOOK PLACE IN A VERY INFORMAL, CONGENIAL ATMOSPHERE. THE CONVERSATIONS
RANGED FREELY ON SUCH TOPICS AS SPORTS, CURRENT NEWS, POLITICS, AND
JOB-RELATED TOPICS. THE SUBJECT OF THE UNION HAD ALSO COME UP ON
OCCASION. THERE WAS A FREE INTERCHANGE OF VIEWS. (TR. 23, 80-81,
117-118, 152, 165-166, 201, 267).
ON OR ABOUT OCTOBER 15, 1977, APPROXIMATELY NINE CUSTOMS EMPLOYEES
MET FOR THE COFFEE BREAK. THE EMPLOYEES WERE PORT DIRECTOR ANDERBERG,
CHIEF INSPECTOR PEACOCK, UNION PRESIDENT MCDANIEL, UNION VICE PRESIDENT
MARCANTONIO, UNION SECRETARY-TREASURER DEDECKER, AND UNION MEMBERS
BAXLEY, SWANN, DURYEA, AND LANGAN. THE TESTIMONY OF SIX EMPLOYEES
VARIES AS TO WHAT OCCURRED DURING THE COFFEE BREAK. HOWEVER, I FIND
FROM CREDITED PORTIONS OF THE TESTIMONY THAT THE FOLLOWING TOOK PLACE.
THERE WERE SEVERAL CONVERSATIONS GOING ON AT THE SAME TIME AMONG THE
NINE EMPLOYEES. MR. DEDECKER WAS DISCUSSING UNION MATTERS WITH CHAPTER
PRESIDENT MCDANIEL. PORT DIRECTOR ANDERBERG MADE A STATEMENT TO SOMEONE
AT HIS END OF THE TABLE THAT HE HAD READ AN ARTICLE IN THE NEWSPAPERS TO
THE EFFECT THAT UNION DUES WERE BEING USED GENERALLY THROUGHOUT THE
COUNTRY TO PAY HIGH WAGES TO UNION OFFICIALS. MR. ANDERBERG THEN
POINTED HIS FINGER AT MR. DEDECKER AND STATED, "I'LL BET YOU DON'T KNOW
WHAT MR. CONNERY (NTEU PRESIDENT) MAKES A YEAR," TO WHICH MR. DEDECKER
REPLIED THAT HE DID NOT. I FIND THAT MR. ANDERBERG DID NOT SAY, "THE
ONLY THING THE NTEU IS GOOD FOR IS TO COLLECT YOUR DUES TO PAY THE
EXORBITANT SALARIES OF YOUR NATIONAL OFFICERS." THERE WAS ALSO A
CONVERSATION ABOUT THE NTEU AND THE NATIONAL CUSTOMS SERVICE ASSOCIATION
(NCSA), THE FORMER CUSTOMS ORGANIZATION. MR. ANDERBERG STATED THAT THE
NTEU NEWSPAPERS ALWAYS CONCERNED NTEU'S REPRESENTATION OF INTERNAL
REVENUE SERVICE EMPLOYEES, AND THE ONLY UNION THAT REPRESENTED CUSTOMS
INSPECTORS WAS THE NCSA. CHIEF INSPECTOR PEACOCK AGREED STATING THAT
NCSA WAS THE ONLY UNION THAT FOUGHT FOR 1911 OVERTIME. WHILE MR.
ANDERBERG'S STATEMENTS DID NOT APPEAR TO BE MADE IN JEST, THERE WAS NO
LULL IN THE CONVERSATION AFTER THESE COMMENTS AND THE CONVERSATION
CONTINUED NORMALLY.
A UNION MEETING FEATURING A TALK BY THE UNION ATTORNEY WAS HELD ON
OCTOBER 29, 1977. MR. DEDECKER, WITH THE SUPPORT OF INSPECTOR BAXLEY,
URGED THAT THE UNION FILE AN UNFAIR LABOR PRACTICE CHARGE AGAINST PORT
DIRECTOR ANDERBERG, BECAUSE OF MR. ANDERBERG'S DISPARAGING COMMENTS
ABOUT THE NTEU AT THE COFFEE BREAK.
WITHIN A WEEK OF THE OCTOBER 29, 1977 MEETING, PORT DIRECTOR
ANDERBERG AND CHIEF INSPECTOR PEACOCK STOPPED ATTENDING THE TRADITIONAL
MORNING COFFEE BREAK WITH OTHER EMPLOYEES AND STOPPED GOING OUT TO LUNCH
WITH EMPLOYEES. (TR. 30-31, 105, 278). WHEN MR. DEDECKER ASKED MR.
ANDERBERG WHY THEY WERE NOT HAVING COFFEE TOGETHER, MR. ANDERBERG
RESPONDED THAT HE WAS NOT GOING TO HAVE COFFEE WITH PEOPLE WHO REPEATED
THINGS HE SAID, AND THAT HE FELT MANAGEMENT AND EMPLOYEES SHOULD GO
THEIR SEPARATE WAYS FOR COFFEE BREAKS AND LUNCH. (TR. 30-31; 278). AT
THE SAME TIME, MR. ANDERBERG, INSPECTOR PEACOCK AND OTHER EMPLOYEES IN
THE DOWNTOWN OFFICE STARTED SHYING AWAY FORM MR. DEDECKER AND SOME
OTHERS WHO HAD BEEN AT THE MEETING. (TR. 31, 105-106, 126, 270).
ON NOVEMBER 4, 1977, THE FIRST OVERTIME SCHEDULE PREPARED AFTER THE
OCTOBER 29, 1977 UNION MEETING WAS RELEASED. MR. DEDECKER WAS NOT
ASSIGNED TO WORK 1911 OVERTIME. THE SCHEDULE WAS PREPARED BY INSPECTOR
PEACOCK WITHOUT ANY INPUT FROM MR. ADNERBERG. (TR. 214). INSPECTOR
PEACOCK TESTIFIED THAT MR. DEDECKER WAS NOT ASSIGNED TO OVERTIME BECAUSE
OF THE UNDERSTANDING THAT HE WOULD DO NOTHING OTHER THAN DOG HANDLING
DUTIES. (TR. 225). AFTER MR. DEDECKER WAS REMOVED FROM 1911 OVERTIME,
THOMAS F. LANGAN, WHO HAD ONCE WORKED 1911 OVERTIME, BUT WHO WAS NOT
FULLY TRAINED, WAS NOT TRAINED OR UTILIZED FURTHER FOR 1911 OVERTIME.
(TR. 160-161; 273-274).
THE REMOVAL OF MR. DEDECKER FROM 1911 OVERTIME ASSIGNMENTS CONTINUED
THROUGHOUT THE REMAINDER OF HIS STAY IN ATLANTA. NOT UNTIL HIS TRANSFER
TO MIAMI DID MR. DEDECKER START WORKING 1911 OVERTIME AGAIN. (TR. 279).
IF MR. DEDECKER HAD NOT BEEN REMOVED FROM 1911 OVERTIME A PREPONDERANCE
OF THE EVIDENCE SHOWS THAT HE WOULD HAVE WORKED SUCH OVERTIME ON
NOVEMBER 5, 8, 14, 18, 20, 21, 27 AND DECEMBER 3, 9, 17, 23, AND 26,
1977. (TR. 144, 126-152, 156-162).
COMPLAINANT CONTENDS THAT MR. DEDECKER'S REMOVAL FROM 1911 OVERTIME
WAS BECAUSE OF HIS UNION ACTIVITIES. THE RESPONDENT ASSERTS THAT THE
REMOVAL OF MR. DEDECKER'S FROM 1911 OVERTIME WAS THE RESULT OF AN EFFORT
TO KEEP MR. DEDECKER'S DOG HANDLING POSITION IN ATLANTA BY CONFINING HIM
TO WORK EXCLUSIVELY AS A DOG HANDLER.
THE FOLLOWING FACTS ARE PERTINENT TO THE EFFORT TO KEEP MR.
DEDECKER'S POSITION IN ATLANTA:
ON MAY 17 AND 18, 1977, SENIOR CUSTOMS OPERATIONS OFFICER D'HUER OF
WASHINGTON, D.C. VISITED ATLANTA FOR THE PURPOSE OF EVALUATION THE LOCAL
MANAGEMENT OF THE CUSTOMS DOG DETECTOR PROGRAM. NO NARCOTICS SEIZURES
HAD BEEN MADE BY THE DOG AND DOGHANDLER. MR. D'HUER FOUND THAT MR.
DEDECKER WAS BEING USED FOR CLERICAL DUTIES FOR APPROXIMATELY HALF THE
WORK DAY. MR. D'HUER RECOMMENDED THAT THE DOG TEAM BE USED EIGHT HOURS
A DAY AT NOTHING BUT DOGHANDLING DUTIES. HE INDICATED TO PORT DIRECTOR
ANDERBERG THAT UNLESS THE DOG WERE FULLY UTILIZED AND DRUG SEIZURES
MADE, THE DOG TEAM COULD NOT BE KEPT IN ATLANTA. (TR. 174, 230-234,
238).
IN OCTOBER 1977 CHARLES WINWOOD, CUSTOMS OPERATIONS OFFICER, MIAMI,
FLORIDA, ADVISED PORT DIRECTOR ANDERBERG THAT MR. D'HUER WAS RETURNING
TO THE REGION TO EVALUATE THE DOGHANDLER PROGRAM AND A CONCENTRATED
EFFORT WOULD HAVE TO BE MADE TO IMPROVE THE EFFECTIVENESS OF THE PROGRAM
IN ORDER FOR IT TO REMAIN IN ATLANTA. (TR. 174; 247). MR. ANDERBERG
INDICATED HE WOULD LIKE TO KEEP THE PROGRAM IN ATLANTA AND WOULD TRY AN
INTENSIVE EFFORT FOR SIXTY DAYS OF HAVING THE DOG AND DOG HANDLER DO
NOTHING BUT CHECKING CARGO AND BAGGAGE, AS MR. D'HUER HAD INDICATED, IN
ORDER TO OBTAIN POSITIVE RESULTS. (TR. 175).
MR. ANDERBERG ADVISED MR. DEDECKER OF THE PROBLEM, AND MR. DEDECKER
INDICATED HE WOULD LIKE TO REMAIN IN ATLANTA AND ASKED WHAT COULD BE
DONE TO ACCOMPLISH THIS. MR. ANDERBERG AND THE CHIEF INSPECTOR MET WITH
MR. DEDECKER AND ADVISED HIM TO MAKE OUT A DAILY SCHEDULE. (TR. 176).
MR. DEDECKER PREPARED A SCHEDULE SHOWING DOGHANDLER DUTIES FROM 0800
THROUGH 1700 WITH A HOUR FOR LUNCH, A 40 HOUR WORK SCHEDULE. (TR. 176,
179, 286, RES. EX. 2). THE SCHEDULE WAS DESIGNED TO SAVE THE POSITION
IN ATLANTA. (TR. 179).
MR. D'HUER RETURNED TO ATLANTA ON OCTOBER 21, 1977. HE EMPHASIZED
THAT THE DOG TEAM HAD TO WORK ENTIRELY AS A DOG TEAM. MR. D'HUER
TESTIFIED THAT A DOG TEAM HAS A REGULAR 40-HOUR WORK WEEK WITH FOUR
HOURS OF TRAINING ON SATURDAY. MR. D'HUER DID NOT SPECIFICALLY
ENCOURAGE, DISCOURAGE, OR PROHIBIT 1911 OVERTIME FOR THE DOGHANDLER, AS
THIS IS A MATTER OF UTILIZATION OF RESOURCES WITHIN THE DISCRETION OF
THE PORT DIRECTOR. (TR. 236, 239-240). MR. D'HUER WAS GIVEN A COPY OF
THE PROPOSED SCHEDULE FOR MR. DEDECKER. MR. ANDERBERG AND MR. PEACOCK
IN THE PRESENCE OF MR. DEDECKER INDICATED TO MR. D'HUER THAT MR.
DEDECKER WOULD BE USED EXCLUSIVELY AS A DOGHANDLER. (TR. 236-237). MR.
ANDERBERG REQUESTED A 60 DAY PERIOD OF TIME TO DETERMINE THE RESULTS OF
THE PROGRAM. MR. D'HUER INDICATED HE WOULD RECOMMEND 30 DAYS. (TR.
236)9
MR. DEDECKER CONTINUED TO WORK 1911 OVERTIME ON OCTOBER 21, 22, 25,
AND NOVEMBER 1, 1977. (COMPLAINANT'S EXHIBIT 3).
ABOUT THREE WEEKS AFTER THE OCTOBER 21, 1977 MEETING, MR. DEDECKER
TELEPHONED MR. WINWOOD IN MIAMI TO STATE THAT THE EXPERIMENT WAS NOT
WORKING OUT, AND HE WISHED TO MOVE TO THE PORT OF MIAMI AS A DOGHANDLER.
THIS WAS ARRANGED, AND MR. DEDECKER CHOSE A REPORTING DATE IN JANUARY
1978. (TR. 254-255). PORT DIRECTOR ANDERBERG RECEIVED NOTIFICATION OF
THE CHANGE IN APPROXIMATELY LATE NOVEMBER 1977. (TR. 181).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
1. REMARKS AT COFFEE BREAK
COMPLAINANT CONTENDS THAT THE REMARKS MADE BY AGENCY MANAGEMENT ABOUT
THE NTEU AT THE COFFEE BREAK WITH EMPLOYEES ON OCTOBER 15, 1977 VIOLATED
SECTION 19(A)(1) OF THE ORDER. /3/ AS FOUND ABOVE, PORT DIRECTOR
ANDERBERG STATED THAT HE HAD READ AN ARTICLE TO THE EFFECT THAT UNION
DUES WERE BEING USED GENERALLY THROUGHOUT THE COUNTRY TO PAY HIGH WAGES
TO UNION OFFICIALS, AND, POINTING TO THE UNION SECRETARY, ADDED, "I'LL
BET YOU DON'T KNOW WHAT MR. CONNERY (NTEU PRESIDENT) MAKES A YEAR." MR.
ANDERBERG ALSO STATED THAT NTEU NEWSPAPERS ALWAYS CONCERNED NTEU'S
REPRESENTATION OF INTERNAL REVENUE SERVICE EMPLOYEES, AND THE ONLY UNION
THAT REPRESENTED CUSTOMS INSPECTORS WAS THE NATIONAL CUSTOMS SERVICE
ASSOCIATION (NCSA), THE FORMER CUSTOMS ORGANIZATION. CHIEF INSPECTOR
PEACOCK AGREED, STATING THAT NCSA WAS THE ONLY UNION THAT FOUGHT FOR
1911 OVERTIME.
THE DETERMINATION OF WHETHER STATEMENTS VIOLATE SECTION 19(A)(1) MUST
TAKE INTO CAREFUL ACCOUNT THE ENTIRE CIRCUMSTANCES SURROUNDING THE
MAKING OF THE STATEMENTS. CF. INTERNAL REVENUE SERVICE, MID ATLANTIC
CENTER, 4 A/SLMR 519, A/SLMR 421(1974).
I CONCLUDE THAT PORT DIRECTOR ANDERBERG'S REFERENCE TO THE NEWSPAPER
ARTICLE CONCERNING HIGH UNION SALARIES AND HIS INQUIRY OF MR. DEDECKER
CONCERNING THE SALARY OF THE NTEU PRESIDENT WERE NOT DISPARAGING OF THE
NTEU AND DID NOT VIOLATE SECTION 19(A)(1). THESE REMARKS WERE
CONSISTENT WITH THE OPEN, FREE DISCUSSION AND EXCHANGE OF VIEWS
CONCERNING NEWS EVENTS WHICH REGULARLY PREVAILED AT THE COFFEE BREAKS.
HOWEVER, MR. ANDERBERG'S IMPLICATION THAT THE NTEU WAS ONLY INTERESTED
IN INTERNAL REVENUE SERVICE EMPLOYEES, AND HIS STATEMENT THAT THE ONLY
UNION THAT REPRESENTED CUSTOMS INSPECTORS WAS THE NCSA, AND CHIEF
INSPECTOR PEACOCK'S COMMENT THAT THE NCSA WAS THE ONLY UNION THAT FOUGHT
FOR 1911 OVERTIME, DID VIOLATE SECTION 19(A)(1). THESE COMMENTS BY
MANAGEMENT OFFICIALS RESPONSIBLE FOR EVALUATIONS, PROMOTIONS,
DISCIPLINE, AND FIRINGS, IN THE PRESENCE OF OTHER EMPLOYEES, REASONABLY
MAY BE VIEWED AS REFLECTING A DISPARAGEMENT OF THE COMPLAINANT.
EMPLOYEES IN THE BARGAINING UNIT COULD REASONABLY CONCLUDE IN THE FACE
OF SUCH COMMENTS THAT MANAGEMENT VIEWS THEIR EXCLUSIVE REPRESENTATIVE
WITH DISDAIN. SUCH REMARKS HAVE THE LOGICAL IMPACT AND EFFECT OF
UNDERMINING THE EMPLOYEES; CONFIDENCE IN THE UNION AND TENDED TO CONVEY
TO EMPLOYEES THE FUTILITY OF REPRESENTATION BY THE UNION. THIS HAS A
CHILLING EFFECT ON ALL EMPLOYEES WHICH DISCOURAGES EXERCISE OF THE
FREEDOM OF EMPLOYEES TO FORM, JOIN, OR ASSIST A LABOR ORGANIZATION,
RIGHTS WHICH ARE GUARANTEED BY SECTION 1(A) OF THE ORDER, AND THE
ABRIDGEMENT OF WHICH IS PROSCRIBED BY SECTION 19(A)(1) OF THE ORDER.
CF. GENERAL SERVICES ADMINISTRATION, REGION 3, A/SLMR 1094(1978);
DEPARTMENT OF THE AIR FORCE, OFFUTT AIR FORCE BASE, 7 A/SLMR 62, A/SLMR
784(1977); U.S. ARMY HEADQUARTERS, 3 A/SLMR 60, A/SLMR 242(1973);
DEPARTMENT OF DEFENSE, ARKANSAS NATIONAL GUARD, 1 A/SLMR 275, A/SLMR
53(1971).
2. LOSS OF OVERTIME
COMPLAINANT CONTENDS THAT MR. DEDECKER WAS REMOVED FROM 1911 OVERTIME
IN WHOLE OR IN PART BECAUSE OF HIS UNION ACTIVITIES IN VIOLATION OF
SECTION 19(A)(1) AND (2) OF THE ORDER. RESPONDENT ASSERTS THAT MR.
DEDECKER WAS NOT ASSIGNED TO 1911 OVERTIME IN ORDER THAT HE MIGHT BE
UTILIZED EXCLUSIVELY AS A DOGHANDLER AND RETAINED IN THE PORT OF MIAMI.
A PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT MR. DEDECKER'S
REMOVAL FROM 1911 OVERTIME WAS BASED ON HIS UNION ACTIVITY.
THE RECORD ESTABLISHES THAT MR. DEDECKER WAS ACTIVE IN THE UNION AND
MANAGEMENT KNEW OF THIS ACTIVITY. SUCH ACTIVITY WAS DESIGNED TO "ASSIST
A LABOR ORGANIZATION," CONDUCT PROTECTED BY SECTION 1(A) OF THE ORDER.
THE RECORD ALSO ESTABLISHES THAT MR. DEDECKER'S REMOVAL FROM 1911
OVERTIME WAS NOT REQUIRED IN ORDER TO SAVE HIS JOB IN ATLANTA. WHILE
PORT DIRECTOR ANDERBERG AND CHIEF INSPECTOR PEACOCK REPRESENTED TO MR.
D'HUER THAT MR. DEDECKER WOULD BE USED EXCLUSIVELY FOR ENFORCEMENT
FUNCTIONS, AND TESTIFIED AT THE HEARING THAT THIS WAS THE SOLE REASON
FOR HIS REMOVAL IN ORDER TO SAVE HIS JOB IN ATLANTA, IT IS CLEAR THAT
THE REPRESENTATION TO USE MR. DEDECKER EXCLUSIVELY FOR DOGHANDLING
DUTIES WAS IN RESPONSE TO MR. D'HUER'S OBJECTIONS TO MR. DEDECKER BEING
USED FOR CLERICAL DUTIES FOR APPROXIMATELY HALF OF HIS WORK DAY. TO
CURE THIS PROBLEM A SCHEDULE WAS DRAWN UP AND PRESENTED TO MR. D'HUER,
WHICH WAS TO ENSURE THAT MR. DEDECKER WOULD WORK AS A DOGHANDLER DURING
THE FORTY HOUR ADMINISTRATIVE WORKWEEK. THIS SCHEDULE, OR MR. D'HUER
OBJECTIONS, DID NOT ADDRESS THE TIME AFTER 5 P.M., BEFORE 8 A.M., OR
SATURDAYS AND SUNDAYS, WHICH WAS THE TIME MR. DEDECKER HAD BEEN WORKING
1911 OVERTIME. MOREOVER, MR. DEDECKER WAS NOT REMOVED FROM 1911
OVERTIME CONTEMPORANEOUSLY WITH THE REPRESENTATIONS TO MR. D'HUER ON
OCTOBER 21, 1977. HE WAS NOT REMOVED UNTIL AN OVERTIME SCHEDULE WAS
ISSUED ON NOVEMBER 4, 1977, WHICH WAS AFTER THE OCTOBER 29, 1977 MEETING
AT WHICH THE MR. DEDECKER AND OTHERS URGED THAT AN UNFAIR LABOR PRACTICE
CHARGE BE FILED CONCERNING MANAGEMENT'S DISPARAGING COMMENTS ABOUT THE
UNION. WHILE RESPONDENT POINTS OUT THAT HAD MANAGEMENT WANTED TO BE RID
OF MR. DEDECKER, THEY WOULD NOT HAVE TRIED TO HELP HIM STAY IN ATLANTA
BY PROPOSING THE NEW DAILY WORK SCHEDULE TO MR. D'HUER, IT IS
SIGNIFICANT TO NOTE THE DATES OF THIS PROPOSAL. THE WORK SCHEDULE WAS
DEVELOPED AND PROPOSED ON OR BEFORE OCTOBER 21, 1977, AND PRIOR TO THE
OCTOBER 29, 1977 UNION MEETING. FURTHER NO REASSIGNMENT OF MR. DEDECKER
TO 1911 OVERTIME WAS FORTHCOMING AFTER LATE NOVEMBER 1977 WHEN IT WAS
OFFICIALLY DETERMINED THAT MR. DEDECKER WOULD BE TRANSFERRED TO MIAMI IN
JANUARY, AND HENCE NO FURTHER NEED OSTENSIBLY EXISTED TO RESTRICT HIS
DUTIES.
ACCORDINGLY, BASED ON THE ACTIVITY'S KNOWLEDGE OF MR. DEDECKER'S
UNION ACTIVITY, THE ABOVE DISPARAGING COMMENTS ABOUT THE UNION BY
MANAGEMENT, THE TIMING OF THE ACTIVITY'S ACTION, AND THE LACK OF ANY
CREDIBLE AND PERSUASIVE REASON THEREFOR, I FIND AND CONCLUDE THAT THE
ACTIVITY'S REMOVING OF MR. DEDECKER FROM 1911 OVERTIME WAS MOTIVATED BY
ANTI-UNION CONSIDERATIONS AND TAKEN AS A REPRISAL FOR HIS UNION
ACTIVITY, WHICH CONSTITUTED DISCRIMINATION IN VIOLATION OF SECTION
19(A)(2) AND (1) OF THE ORDER. CF. DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, SAN JUAN, PUERTO RICO, A/SLMR 1127 (SEPT. 22, 1978); INTERNAL
REVENUE SERVICE, A/SLMR 1081 (JULY 14, 1978); CALIFORNIA NATIONAL
GUARD, SACRAMENTO, CALIFORNIA, 4 A/SLMR 104, A/SLMR 348(1974). I ALSO
FIND THAT BUT FOR THE RESPONDENT'S WRONGFUL ACTION MR. DEDECKER WOULD
HAVE CONTINUED TO RECEIVE 1911 OVERTIME PAY DURING NOVEMBER AND DECEMBER
1977 AND IS ENTITLED TO BACKPAY TO REMEDY THE UNFAIR LABOR PRACTICE
UNDER THE PROVISIONS OF THE BACK PAY ACT OF 1966, 5 U.S.C. 5596(1970).
CF. MARE ISLAND SHIPYARD AND MARE ISLAND NAVY YARD METAL TRADES COUNCIL,
AFL-CIO, 4 FLRC 143, FLRC 74A-64(1976). A PREPONDERANCE OF THE EVIDENCE
ESTABLISHES THE SPECIFIC DATES WHEN MR. DEDECKER WOULD HAVE WORKED SUCH
OVERTIME, AS SET AND ABOVE, AS NOVEMBER 5, 8, 14, 18, 20, 21, 27 AND
DECEMBER 3, 9, 17, 23 AND 26, 1977.
RECOMMENDATIONS
UPON THE BASIS OF THE AFOREMENTIONED FINDINGS, CONCLUSIONS, AND THE
ENTIRE RECORD, AND HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN
CONDUCT VIOLATIVE OF SECTIONS 19(A)(1) AND (2) OF THE ORDER, I RECOMMEND
THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, 29
C.F.R. SECTION 203.26(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R. SECTION 2400.2 (1979), THE AUTHORITY HEREBY
ORDERS THAT THE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA SHALL:
1. CEASE AND DESIST FROM:
(A) MAKING DISPARAGING OR DEMEANING REMARKS TO EMPLOYEES ABOUT THE
NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION.
(B) DISCRIMINATING AGAINST CLARENCE DEDECKER IN ANY MANNER WITH
REGARD TO HIRE, TENURE, PROMOTION, ASSIGNMENT OF 1911 OVERTIME, OR OTHER
CONDITIONS OF EMPLOYMENT IN ORDER TO DISCOURAGE MEMBERSHIP IN OR
ACTIVITIES ON BEHALF OF NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
LABOR ORGANIZATION.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER:
(A) MAKE CLARENCE DEDECKER WHOLE FOR ANY LOSS OF BACK PAY OR
DIFFERENTIAL WHICH HE WOULD HAVE EARNED FOR 1911 OVERTIME DURING THE
PERIOD NOVEMBER 4 TO DECEMBER 27, 1977 CONSONANT WITH APPLICABLE LAW,
REGULATIONS, AND DECISIONS OF THE COMPTROLLER GENERAL.
(B) POST AT ITS FACILITIES LOCATED IN THE ATLANTA, GEORGIA AREA
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE REGIONAL COMMISSIONER AND 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. THE REGIONAL COMMISSIONER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 6, 1979
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 EXECUTIVE ORDER 11491, AS
AMENDED LABOR-MANAGEMENT RELATIONS IN THE FEDERAL
SERVICE, WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT MAKE DISPARAGING OR DEMEANING REMARKS TO EMPLOYEES ABOUT
THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT DISCRIMINATE AGAINST CLARENCE DEDECKER, OR ANY OTHER
EMPLOYEE, IN ANY MANNER WITH REGARD TO HIRING, TENURE, PROMOTION,
ASSIGNMENT OF 1911 OVERTIME, OR OTHER CONDITIONS OF EMPLOYMENT IN ORDER
TO DISCOURAGE MEMBERSHIP IN OR ACTIVITIES ON BEHALF OF NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, TO THE EXTENT CONSONANT WITH APPLICABLE LAW, REGULATIONS,
AND DECISIONS OF THE COMPTROLLER GENERAL, MAKE CLARENCE DEDECKER WHOLE
FOR ANY LOSS OF BACK PAY OR DIFFERENTIAL WHICH HE WOULD HAVE EARNED FOR
1911 OVERTIME DURING THE PERIOD NOVEMBER 4 TO DECEMBER 27, 1977.
. . .
(AGENCY OR ACTIVITY)
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, WHOSE ADDRESS IS
SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA, GEORGIA 30309.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS 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 AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR 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 EXECUTIVE ORDER.
/2/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/3/ SECTION 19(A)(1) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT
SHALL NOT "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER." SECTION 1(A) OF THE ORDER
GUARANTEES TO EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL
GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO
FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM ANY SUCH
ACTIVITY.