General Services Administration, National Capital Region (Respondent) and National Federation of Federal Employees (Charging Party)
[ v04 p502 ]
04:0502(69)CA
The decision of the Authority follows:
4 FLRA No. 69
GENERAL SERVICES ADMINISTRATION,
NATIONAL CAPITAL REGION
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
Charging Party
Case No. 3-CA-229
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT RESPONDENT HAD
ENGAGED IN AN UNFAIR LABOR PRACTICE, 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 GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER, BUT NO EXCEPTIONS THERETO
WERE FILED BY THE RESPONDENT.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), 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
SUBJECT CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED BY THE RESPONDENT, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY
RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE AUTHORITY
HEREBY ORDERS THAT THE GENERAL SERVICES ADMINISTRATION, NATIONAL CAPITAL
SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY CONVEYING THE
IMPRESSION THAT THEIR CONDUCT WILL BE MORE CLOSELY MONITORED AS A RESULT
OF FILING AN UNFAIR LABOR PRACTICE CHARGE UNDER THE STATUTE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT ITS NATIONAL CAPITAL REGION, COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY THE
REGIONAL DIRECTOR FOR REGION 3, AFTER BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF,
AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR FOR REGION 3, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER WHAT STEPS IT HAS TAKEN TO COMPLY
HEREWITH.
ISSUED, WASHINGTON, D.C., OCTOBER 23, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY CONVEYING THE
IMPRESSION THAT THEIR CONDUCT WILL BE MORE CLOSELY MONITORED AS A RESULT
OF FILING AN UNFAIR LABOR PRACTICE CHARGE UNDER THE STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
. . .
(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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005
AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
EDWARD P. DENNEY
FOR THE RESPONDENT
ANA DE LA TORRE, ESQUIRE
PETER B. ROBB, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
ET SEQ.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (THE UNION) ON MAY 17, 1979, AGAINST GENERAL
SERVICES ADMINISTRATION, NATIONAL CAPITAL REGION, /1/ THE GENERAL
COUNSEL OF THE AUTHORITY, BY THE REGIONAL DIRECTOR FOR REGION 3, ISSUED
A COMPLAINT AND NOTICE OF HEARING ON JANUARY 31, 1980, ALLEGING THAT
RESPONDENT HAD ENGAGED IN AND IS ENGAGING IN UNFAIR LABOR PRACTICES
WITHIN THE MEANING OF SECTIONS 7116(A)(1) AND (4) OF THE STATUTE. THE
COMPLAINT ALLEGES THAT ON MAY 7, 1979, RESPONDENT THROUGH ITS AGENT
PETER BOULAY INSTRUCTED SUPERVISORS AMON COMFORT AND WILLIAM KORNEGAY TO
KEEP A CLOSE SURVEILLANCE ON ROBERT REESE BECAUSE REESE WAS NAMED AS A
DISCRIMINATEE IN A PRIOR UNFAIR LABOR PRACTICE CHARGE FILED AGAINST
RESPONDENT AND HAD FULLY PARTICIPATED IN THE AUTHORITY'S INVESTIGATION
OF THAT CHARGE. RESPONDENT DENIES THE ALLEGATIONS.
A HEARING ON THE COMPLAINT HEREIN WAS CONDUCTED ON MARCH 4, 1980, IN
WASHINGTON, D.C., AT WHICH TIME THE GENERAL COUNSEL AND RESPONDENT WERE
REPRESENTED AND AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL,
EXAMINE AND CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED
BY COUNSEL FOR THE GENERAL COUNSEL AND RESPONDENT.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT
ON MAY 2, 1979, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
AGAINST RESPONDENT ALLEGING THAT EMPLOYEE ROBERT REESE, A STEWARD IN THE
UNION'S LOCAL 1800, WAS DENIED A PROMOTION BECAUSE OF HIS UNION
ACTIVITIES. /2/ REESE HAD BEEN THE LOCAL'S CHIEF STEWARD SINCE APRIL
1978 AND WAS VERY ACTIVE IN PROCESSING GRIEVANCES AND ASSISTING OTHER
UNION STEWARDS IN THEIR REPRESENTATIONAL ACTIVITIES. REESE, A GS-11
INVENTORY MANAGEMENT SPECIALIST WITH RESPONDENT, WAS ELIGIBLE FOR A
PROMOTION IN FEBRUARY 1979 AND WHEN THE PROMOTION FAILED TO MATERIALIZE
THE UNION FILED THE UNFAIR LABOR PRACTICE ON HIS BEHALF.
THE CHARGE CAME TO THE ATTENTION OF PETER BOULAY, RESPONDENT'S
ASSISTANT REGIONAL ADMINISTRATOR FOR SUPPLY, AND ON MAY 7, 1979, BOULAY
ASSEMBLED VARIOUS SUPERVISORY PERSONNEL INCLUDING AMON COMFORT, REESE'S
SECOND-LINE SUPERVISOR AND WILLIAM KORNEGAY, REESE'S FIRST-LINE
SUPERVISOR. BOULAY CALLED THE MEETING TO ASCERTAIN WITHER THE UNFAIR
LABOR PRACTICE CHARGE HAD ANY VALIDITY AND TO DETERMINE THE
CIRCUMSTANCES WHICH LED UP TO THE CHARGE. DURING THE DISCUSSION WHICH
ENSUED COMFORT DENIED THAT REESE FAILED TO RECEIVE THE PROMOTION BECAUSE
OF UNION ACTIVITIES, EXPLAINING THAT REESE WAS NOT RECOMMENDED FOR
PROMOTION BASICALLY BECAUSE OF HIS LACK OF DEPENDABILITY. COMFORT
EXPLAINED THAT REESE HABITUALLY LEFT HIS DUTY STATION WITHOUT ANNOUNCING
HIS WHEREABOUTS AND HIS SUPERVISORS WOULD NOT KNOW WHERE HE WAS FOR
LONG
PERIODS OF TIME. FURTHER, COMFORT COMPLAINED THAT REESE TOOK EXTENDED
LUNCH AND RELIEF BREAKS AND EVERY YEAR WENT INTO A NEGATIVE SICK AND
ANNUAL LEAVE STATUS. COMFORT ALSO EXPLAINED THAT REESE WAS SOMETIMES
LOUD AND BOISTEROUS AND A PROBLEM ALSO EXISTED WITH REESE NOT COMPLETING
HIS WORK ASSIGNMENTS IN A TIMELY FASHION. COMFORT ADDED THAT HE WAS
ATTEMPTING TO CORRECT REESE'S NEGATIVE WORK HABITS AND THAT REESE HAD
THE POTENTIAL TO BE A GOOD EMPLOYEE WHO WOULD BE RECOMMENDED FOR
PROMOTION WHEN REESE RECTIFIED HIS DEFICITS. /3/ BOULAY HAD PREVIOUSLY
DISCUSSED REESE'S DEFICIENCIES WITH COMFORT AND KORNEGAY AND BECAME
AWARE THAT REESE WAS A "PROBLEM EMPLOYEE" SHORTLY AFTER BOULAY BECAME
ASSOCIATED WITH REESE'S WORK AREA IN OCTOBER 1978. DURING THOSE PRIOR
OCCASIONS BOULAY ENCOURAGED REESE'S SUPERVISORS TO DOCUMENT THE
SPECIFICS OF REESE'S UNACCEPTABLE CONDUCT. AT THE MAY 7, 1979, MEETING
BOULAY INSTRUCTED HIS SUPERVISORS, AS HE HAD DONE PREVIOUSLY, THAT
WHENEVER THEY HAD COMPLAINTS ABOUT AN EMPLOYEE, INFRACTIONS WERE TO BE
ADEQUATELY DOCUMENTED IN ORDER TO SUPPORT TAKING DISCIPLINARY ACTION
AGAINST THAT EMPLOYEE. BOULAY INSISTED HE WANTED "THESE THINGS
DOCUMENTED." ANOTHER SUPERVISOR AT THE MEETING INTERJECTED THAT REESE
COULD NOT BE SINGLED OUT FOR THIS TREATMENT AND BOULAY AGREED. COMFORT
ADDED THAT THEY HAD BEEN DOCUMENTING REESE'S NEGATIVE WORK HABITS AND
SUGGESTED THAT THIS INFORMATION SIMPLY HADN'T REACHED BOULAY'S LEVEL OF
MANAGEMENT.
ON THAT SAME DAY OR THE FOLLOWING DAY REESE WAS CALLED TO A MEETING
WITH COMFORT AND KORNEGAY. /4/ COMFORT TOLD REESE THAT HE AND KORNEGAY
HAD MET WITH BOULAY REGARDING REESE'S UNFAIR LABOR PRACTICE CHARGE AND
DISCUSSED HIS UNACCEPTABLE WORK HABITS. COMFORT TOLD REESE THAT BOULAY
INSTRUCTED THEM TO WATCH REESE AND TO DOCUMENT HIS MOVEMENTS. COMFORT
SAID HE WAS NOT IN FAVOR OF DOING THIS BUT WOULD IF BOULAY INSISTED.
REESE WAS TOLD THAT HE WOULD HAVE TO LET HIS SUPERVISORS KNOW EXACTLY
WHERE HE WAS GOING WHEN HE LEFT THE WORK AREA. REESE ASKED IF THAT
INCLUDED GOING TO THE MEN'S ROOM AND THE REPLY WAS "YES." COMFORT THEN
ADVISED REESE THAT IF HE DIDN'T "WATCH HIS STEP" THERE WAS A POSSIBILITY
THAT HE MIGHT BE FIRED. COMFORT ADDED THAT HE THOUGHT "THEY" WERE
TRYING TO FIRE REESE. WHEN ASKED BY REESE IF HE WAS GOING TO KEEP A
"BOOK" ON HIM, COMFORT REPLIED THAT HE DIDN'T KNOW. REESE ASKED IF HE
HAD BEEN "SINGLED OUT" AND COMFORT REPLIED IN THE NEGATIVE.
REESE AND KORNEGAY LEFT COMFORT'S OFFICE TOGETHER. REESE ASKED
KORNEGAY WHAT HIS FEELINGS WERE IN THE MATTER AND KORNEGAY INDICATED
THAT WHILE IT WASN'T HIS IDEA, HE WOULD DO WHAT WAS REQUIRED OF HIM.
SOMETIME AFTER THE FILING OF THE INSTANT UNFAIR LABOR PRACTICE CHARGE
ON MAY 17, 1979, WHICH SPECIFICALLY ALLEGED THAT BOULAY DIRECTED COMFORT
TO "DOCUMENT EVERY MOVE . . . REESE . . . MADE," COMFORT MENTIONED TO
REESE THAT HE HAD BEEN "CHEWED OUT" BY BOULAY FOR GIVING REESE "TOO MUCH
INFORMATION."
PRIOR TO THE MEETING BETWEEN REESE, COMFORT AND KORNEGAY, DESCRIBED
ABOVE, WHEN REESE LEFT HIS WORK PLACE TO PURSUE UNION REPRESENTATIONAL
BUSINESS REESE FOLLOWED THE PROCEDURE OF INFORMING KORNEGAY WHERE HE
WAS
GOING AND WHEN HE EXPECTED TO RETURN. ALTHOUGH BEING COUNSELLED FROM
TIME TO TIME FOR EXCESSIVE USE OF OFFICIAL TIME TO ENGAGE IN
REPRESENTATIONAL DUTIES, NORMALLY LITTLE CONCERN WAS EXPRESSED IF REESE
OVERSTAYED HIS ANTICIPATED TIME OF RETURN FROM THESE TRIPS. HOWEVER,
AFTER THE MEETING WHEN REESE WOULD INDICATE HE WAS NEEDED OUT OF THE
OFFICE FOR UNION BUSINESS, HE WAS MORE CLOSELY QUESTIONED AS TO WHERE HE
WAS GOING AND HOW LONG HE EXPECTED TO BE AWAY. FURTHER, HE WAS
THEREAFTER FREQUENTLY REMINDED OF THE 30 MINUTE LIMITATION PLACED ON ALL
UNION REPRESENTATIVES' ACTIVITIES ALTHOUGH HE WAS NOT STRICTLY HELD TO
SUCH TIME AND UPON RETURNING TO HIS WORK STATION REESE WAS QUESTIONED BY
KORNEGAY MORE CLOSELY THAN PREVIOUSLY ABOUT HIS WHEREABOUTS WHEN
EXCEEDING THE TIME HE ESTIMATED HE WOULD BE GONE FROM THE WORK PLACE.
IN ADDITION, AFTER THE MEETING WITH HIS SUPERVISORS, REESE'S WORK WAS
CHECKED SOMEWHAT MORE FREQUENTLY AND THE INSPECTIONS OF HIS WORK FILES
NOW OCCURRED AT HIS DESK AS OPPOSED TO THE PRIOR PROCEDURE OF HAVING HIS
WORK REVIEWED IN COMFORT'S OFFICE.
DISCUSSION AND CONCLUSIONS
THE COMPLAINT ALLEGES AND RESPONDENT DENIES THAT RESPONDENT VIOLATED
THE STATUTE BY ORDERING ITS SUPERVISORS TO KEEP A CLOSE SURVEILLANCE ON
EMPLOYEE REESE BECAUSE REESE HAD FILED AN UNFAIR LABOR PRACTICE CHARGE
AGAINST RESPONDENT. I CONCLUDE THAT COUNSEL FOR THE GENERAL COUNSEL HAS
NOT ESTABLISHED BY A PREPONDERANCE OF EVIDENCE THAT ANY REPRISAL WAS
TAKEN AGAINST REESE FOR HIS HAVING FILED AN UNFAIR LABOR PRACTICE
CHARGE.
IT IS ACKNOWLEDGE THAT RESPONDENT'S SUPERVISORS MET ON MAY 7, 1979,
TO CONSIDER REESE'S UNFAIR LABOR PRACTICE CHARGE, REGARDING HIS FAILURE
TO RECEIVE A PROMOTION. IT IS ALSO ADMITTED THAT REESE'S ACTIONS AS AN
EMPLOYEE WERE REVIEWED AT THAT MEETING. HOWEVER, OTHER THAN BEING THE
OCCASION FOR THE MEETING THERE IS NO EVIDENCE THAT THE UNFAIR LABOR
PRACTICE CHARGE WAS DISCUSSED FURTHER OR PLAYED ANY PART IN THE
DISCUSSION WHICH ENSUED CONCERNING REESE'S WORK HABITS, A NATURAL
OUTGROWTH OF COMFORT'S STATEMENTS TO BOULAY AS TO WHY HE HAD NOT
RECOMMENDED REESE FOR PROMOTION. BOULAY, ALREADY AWARE THAT REESE WAS A
"PROBLEM EMPLOYEE," WAS OBVIOUSLY DISMAYED THAT HIS SUBORDINATES HAD
ALLOWED REESE TO CONTINUE ON WITH HIS POOR WORK HABITS AND EXCESSES.
THUS, BOULAY INSISTED HIS SUPERVISORS CONFORM TO HIS PAST INSTRUCTIONS
TO DOCUMENT INFRACTIONS IN ORDER TO SUPPORT DISCIPLINARY ACTION AND, IN
EFFECT, CARRY OUT THEIR SUPERVISORY RESPONSIBILITIES. BOULAY'S
INSTRUCTIONS CONCERNING DOCUMENTATION WERE NO DOUBT UTTERED WITH SOME
DEGREE OF ENTHUSIASM. INDEED, BOULAY ACKNOWLEDGED AT THE HEARING THAT
WHILE HE DID NOT UTTER THE PRECISE WORDS, KEEPING A "CLOSE SURVEILLANCE"
ON REESE COULD HAVE BEEN INTERPRETED FROM HIS INSTRUCTIONS TO REESE'S
SUPERVISORS.
TRUE, AFTER REESE FILED HIS CHARGE MANAGEMENT DISCUSSED HIS ON THE
JOB CONDUCT AND THE DISCUSSION RESULTED IN MORE STRINGENT CONTROLS BEING
PLACED ON HIS ACTIONS. THE TIMING, OF COURSE, GIVES RISE TO THE
SUSPICION THAT A REPRISAL WAS TAKEN AGAINST REESE BECAUSE HE FILED THE
CHARGE. HOWEVER, SUSPICION IS NOT PROOF. RESPONDENT'S REASONABLE
EXPLANATION OF EVENTS, WHEN VIEWED IN THE CONTEXT OF ALL THE
CIRCUMSTANCES INCLUDING REESE'S WORK HISTORY AND THE ABSENCE OF EVIDENCE
OF GENERAL UNION ANIMUS OR PRIOR HOSTILITY TOWARDS REESE BASED ON HIS
UNION ACTIVITIES, LEADS ME TO FIND THAT BOULAY'S ORDERS FOR
DOCUMENTATION WERE NOT GIVEN AS A REPRISAL AGAINST REESE FOR FILING THE
CHARGE. ACCORDINGLY, I CONCLUDE THAT THE EVIDENCE IS INSUFFICIENT TO
ESTABLISH THAT BOULAY'S CONDUCT CONSTITUTED A VIOLATION OF SECTION
7116(A)(1) OF THE STATUTE.
NEVERTHELESS, I CONCLUDE THAT COMFORT'S STATEMENT TO REESE DURING HIS
MEETING WITH REESE AND KORNEGAY SHORTLY AFTER MAY 7 VIOLATED THE
STATUTE. CLEARLY MANAGEMENT HAS THE RIGHT TO REQUIRE THAT EMPLOYEES
FULFILL THEIR WORK OBLIGATIONS AND COMPLY WITH STANDARDS OF JOB
PERFORMANCE. PRIOR TO THE BOULAY MEETING REESE WAS ABUSING THE GROUND
RULES FOR ABSENCES IN PERFORMING HIS UNION REPRESENTATIONAL DUTIES AND
WAS COUNSELLED FOR SUCH CONDUCT BUT APPARENTLY WITHOUT SUCCESS.
MANAGEMENT WAS THEREFORE PRIVILEGED TO TAKE FURTHER ACTION TO ASSURE
COMPLIANCE WITH THE ACCEPTED UNIFORM POLICY IN THIS REGARD.
HOWEVER, WHEN COMFORT INFORMED REESE OF THE MEETING WITH BOULAY HE
LINKED, PERHAPS INADVERTENTLY, REESE'S FILING OF THE UNFAIR LABOR
PRACTICE CHARGE WITH BOULAY'S INSTRUCTION TO DOCUMENT REESE'S FUTURE
MOVEMENTS. UNDER THESE CIRCUMSTANCES REESE COULD FAIRLY INTERPRET THAT
RESPONDENT'S PRESENT CONCERN WITH HIS MOVEMENTS RESULTED FROM HIS FILING
THE CHARGE. THUS, DUE TO THE MANNER IN WHICH COMFORT CONVEYED
MANAGEMENT'S DISPLEASURE WITH REESE'S CONDUCT, COMFORT CREATED THE
IMPRESSION THAT REESE'S FILING THE UNFAIR LABOR PRACTICE CHARGE WAS THE
REASON FOR HIS SUPERVISORS NOW GIVING CLOSE ATTENTION TO HIS ACTIVITIES.
THIS IN MY VIEW CONSTITUTED INTERFERENCE, RESTRAINT AND COERCION UPON
REESE IN THE GENERAL EXERCISE OF HIS RIGHT TO PERFORM HIS DUTIES AS
UNION STEWARD, A RIGHT PROTECTED BY THE STATUTE. ACCORDINGLY, I
CONCLUDE THAT BY THIS CONDUCT RESPONDENT VIOLATED SECTION 7116(A)(1) OF
THE STATUTE. /5/
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTION
7116(A)(1) OF THE STATUTE, I RECOMMEND THE AUTHORITY ISSUE THE
FOLLOWING:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL
RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT GENERAL SERVICES
ADMINISTRATION, NATIONAL CAPITAL REGION SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY CONVEYING THE
IMPRESSION THAT THEIR CONDUCT WILL BE MORE CLOSELY MONITORED AS A RESULT
OF FILING AN UNFAIR LABOR PRACTICE CHARGE UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND NECESSARY
TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) POST AT ITS NATIONAL CAPITAL REGION, COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY THE
REGIONAL DIRECTOR FOR REGION 3, AFTER BEING SIGNED BY AN AUTHORIZED
REPRESENTATIVE, SHALL BE POSTED BY IT IMMEDIATELY UPON RECEIPT THEREOF,
AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR FOR REGION 3, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY
HEREWITH.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: MAY 30, 1980
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 INTERFERE WITH, RESTRAIN OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE BY CONVEYING THE
IMPRESSION THAT THEIR CONDUCT WILL BE MORE CLOSELY MONITORED AS A RESULT
OF FILING AN UNFAIR LABOR PRACTICE CHARGE UNDER THE STATUTE.
(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:
1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005 AND WHOSE
TELEPHONE NUMBER IS (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ THE NAME OF RESPONDENT APPEARS AS AMENDED AT THE HEARING.
/2/ CASE NO. 3-CA-186, THE MERITS OF WHICH ARE NOT AT ISSUE HEREIN.
/3/ FOR A SUBSTANTIAL PERIOD OF TIME PRIOR TO THIS MEETING REESE HAD
BEEN COUNSELLED BY COMFORT OR KORNEGAY ON NUMEROUS OCCASIONS. THE
TOPICS FOR THE COUNSELLINGS PRIMARILY INCLUDED EXCESSES IN THE USE OF
OFFICIAL TIME FOR UNION REPRESENTATIONAL ACTIVITIES AND, TO A LESSER
EXTENT, NOT KEEPING UP WITH HIS WORK.
/4/ THIS VERSION IS TAKEN LARGELY FROM THE TESTIMONY OF REESE WHICH I
CREDIT TO A SUBSTANTIAL DEGREE ALTHOUGH HE SEEMED INCLINED TO EMPHASIZE
AND DE-EMPHASIZE EVENTS ACCORDING TO WHAT APPEARED MOST BENEFICIAL TO
HIMSELF AND PRESENTED HIS TESTIMONY IN A SOMEWHAT DISJOINTED FASHION.
IN SO FINDING I HAVE NOTED THAT KORNEGAY TESTIFIED AT THE HEARING BUT NO
TESTIMONY WAS ELICITED FROM HIM RELATIVE TO SPECIFICALLY WHAT TRANSPIRED
AT THIS MEETING. FURTHER, I FOUND COMFORT'S ACCOUNT OF WHAT OCCURRED
TOO ABBRIEVIATED TO RELY UPON ENTIRELY.
I RECOGNIZE THAT FRAGMENTARY ACCOUNTS OF EVENTS SOMETIMES RESULT FROM
FAULTY MEMORY, DIMINISHED ARTICULATION DUE TO THE CIRCUMSTANCES OF A
TRAIL AND INADVERTENCE. IN ANY EVENT, IN REACHING THIS AND OTHER
CREDIBILITY RESOLUTIONS INHERENT IN THE FACTUAL FINDINGS HEREIN I HAVE
TAKEN PARTICULAR NOTE OF THE FAILURE TO DENY OR EXPLAIN SIGNIFICANT
ADVERSE TESTIMONY AND THE LACK OF CORROBORATION WHERE ONE MIGHT EXPECT
IT TO BE PRODUCED, IF AVAILABLE.
/5/ ALTHOUGH THE COMPLAINT CONTAINED NO SPECIFIC ALLEGATION WITH
REGARD TO COMFORT'S MEETING WITH REESE, THE DISCUSSION WAS AN ADJUNCT TO
THE MATTER SET FORTH IN THE COMPLAINT AND WAS AN ISSUE IN CONTENTION AND
LITIGATED AT THE HEARING.