[ v14 p450 ]
The decision of the Authority follows:
14 FLRA No. 73 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-35 Respondents and SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO Charging Party Case No. 8-CO-36 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondents had not engaged in certain unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Judge's decision. /1A/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (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, the Authority hereby adopts the Judge's findings, conclusions and recommended Order. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 8-CO-36 be, and it hereby is, dismissed. Issued, Washington, D.C., May 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CO-36 Ronald Steensland, Esquire For the Respondent Deborah S. Wagner, Esquire Joseph Swerdzewski, Esquire For the General Counsel Mike McDermott, Int'l Representative For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.Section 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411, et seq. Pursuant to a charge filed on February 5, 1981, by the Service Employees International Union, AFL-CIO (hereinafter called the SEIU or Charging Party), a Complaint and Notice of Hearing was issued on July 23, 1981, by the Regional Director for Regional VIII, Federal Labor Relations Authority, Los Angeles, California. The Complaint alleges that the National Association of Government Employees and its Local R12-35 (hereinafter called the Respondents or NAGE and NAGE Local R12-35), violated Section 7116(b)(1) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute or Act), by virtue of their actions in issuing a letter on or about December 29, 1980, wherein their membership was encouraged to destroy any showing of interest petitions then being circulated by representatives of SEIU. A hearing was held in the captioned matter on October 20, 1981, in San Diego, California. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The parties submitted briefs on December 4, 1981, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, /1/ conclusions and recommendations. Findings of Fact NAGE Local R12-35 has represented a unit of employees at the Navy Public Works Center in San Diego, California, since 1969 and been a party to collective bargaining agreements with such Activity. In December of 1980, a time when the current NAGE Local R12-35 collective bargaining agreement with the Activity was due to expire, the SEIU commenced an organizational campaign designed to collect a number of unit employees' signatures for purposes of attaining a sufficient showing of interest to support a petition for an election challenging NAGE Local R12-35's status as exclusive representative. In furtherance of its objective, on or about December 11, 1980, SEIU held an open meeting which was chaired by Mr. Mike McDermott, a west coast labor organizer for the SEIU. In addition to Mr. McDermott and Mr. Jim Hawes, another representative for the SEIU, the meeting was attended by some 11 or 12 Navy Public Work Center employees. Among the Navy Public Work Center employees were Mr. Walter Woodworth and Mr. James McVey, former president and vice-president, respectively, of Local R12-35, and Mr. Albert Abbruzzese, the current president of R12-35. During the course of the meeting Mr. McDermott answered a number of questions from the attendees, including Mr. Abbruzzese, concerning the operation of the SEIU. Following the meeting Mr. Abbruzzese, submitted a complete report thereon to Mr. John Carpenter, a National Vice-President of NAGE, whose office is located in Burbank, California. With regard to Mr. Carpenter's relationship to Local R12-35 in his capacity as a National Vice-President of NAGE, the record indicates that Mr. Carpenter's office generally provides negotiators for contract negotiations, attorneys for arbitration, MSPB or workmens' compensation hearings, assistance in writing grievances and general advice on matters which concern Local R12-35. The aforementioned services are provided not only to Local R12-35 but to all SEIU locals within the NAGE Burbank Office's jurisdiction. On or about December 29, 1980, Mr. Carpenter sent a letter, on NAGE stationery, to approximately 500 members of Local R12-35 informing them that they might be approached by "some smooth talking suede-shoes salesmen to sign a petition to bring in another union". After making some derogatory remarks about the people who might be soliciting their signatures, the letter went on to state as follows: If you see a petition, destroy it. Notify your officers and stewards if you are approached by anyone with a petition. According to Mr. Carpenter, the letter was his own idea and he did not consult with anyone before sending it. He thinks that he probably mentioned it to Mr. Abbruzzese before it was mailed because he was sure that he informed Mr. Abbruzzese as to what documents were in the envelope mailed to the 500 members of Local R12-35 on December 29, 1980. Mr. Abbruzzese testified that he was not informed by Mr. Carpenter about the letter until after it was sent out. Subsequent to the mailing of the letter Mr. Abbruzzese and Mr. Carpenter had a number of conversations concerning the letter. Mr. Abbruzzese acknowledges that neither he nor any other Local R12-35 official at anytime disavowed the instructions contained in Mr. Carpenter's letter with respect to destroying SEIU petitions. Further, according to the testimony of Mr. Abbruzzese, in response to inquiries from the membership concerning the destruction of SEIU's petitions, he informed the employees that if Mr. Carpenter said the destruction was alright, it was alright with him. Mr. Abbruzzese also testified that although he agreed with the letter from Mr. Carpenter and therefore took no specific steps to nullify it, he left it up to the employees' individual choices as to whether the SEIU petitions should be destroyed. With regard to the SEIU petitions, the record indicates that representatives of the SEIU handed out several numerically numbered petitions to interested employees for purposes of soliciting signatures thereon. Subsequently, upon returning to the interested employees the SEIU was unable to retrieve all the petitions it had originally handed out. Although, the SEIU and the General Counsel contend that the missing petitions were destroyed pursuant to the instructions contained in Mr. Carpenter's letter, the record is barren of any evidence whatsoever in support of such contention. In fact both Mr. Woodworth and Mr. McVey, who were primarily responsible for distributing the SEIU petitions and collecting same, admitted that they had no knowledge that the missing petitions had in fact been destroyed. The record is also barren of any evidence indicating that the letter played any part in any employee's individual decision to sign or not sign the SEIU petition. The record further indicates that the SEIU subsequently filed a petition for an election which did not contain a sufficient showing of interest to support an election. Discussion and Conclusions The General Counsel and the Charging Party take the position that the December 29, 1980, letter interfered with, restrained, or coerced the employees in the exercise of their rights protected by the Statute in violation of Section 7116(b)(1). They further contend that both NAGE and NAGE Local R12-35 are responsible for such violation since Mr. Carpenter was acting as agent for NAGE Local R12-35 when he wrote the letter instructing the employees to destroy the SEIU petitions. Respondent on the other hand, denies the agency relationship and takes the position, that in any event, the letter did not interfere with, restrain or coerce the unit employees in the exercise of their rights accorded by the Statute. Contrary to the contention of the General Counsel and the Charging Party, I cannot find that the December 29, 1980, letter, standing alone, was violative of Section 7116(b)(1) of the Statute. Section 7102 of the Statute gives employees the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal. To the extent that a union interferes with, restrains or coerces employees in the exercise of the rights accorded by Section 7102, such union action is violative of Section 7116(b) of the Statute. In view of the foregoing, it is obvious that in order to establish a violation of Section 7116(b)(1) it must be shown that the December 29, 1980, letter in some way coerced, restrained or interfered with the employees right to support the SEIU petition efforts. In the absence of any evidence, whatsoever, that the instruction to destroy the SEIU petitions was accompanied by threats or acts of intimidation, direct or implied, it cannot be said that the instruction, standing alone, did in fact coerce and restrain the employees in connection with their Statutory right to support the SEIU petition for an election. Similarly, in the absence of any evidence that some of the petitions were in fact destroyed, I question how the instruction could be said to have "interfered with" the employees' right to support or sign the SEIU petition. The only possible argument in support of such a finding would have to be predicated on the premise that the instruction some how demonstrated to unit employees the futility of affixing their respective names to petitions which, due to the instruction, stood a good chance of being destroyed. However, in view of the fact that the record indicates that the petitions were generally in control of specified individuals and not left unattended in lunch rooms and other places frequented by unit employees, and the absence of any evidence that any employee was dissuaded from, or reluctant to, sign the petitions because of NAGE's letter, I find the futility argument to be without merit. /2/ Additionally, I cannot accept the argument that the fact that the Union possesses the ability to retaliate against a dissident unit employee in and of itself makes the December 20th letter a per se violation of Section 7116(b)(1), since such a conclusion would be equally applicable to any statement uttered by a union which is designed to retain the support of the unit employees. Accordingly, although I do not condone Respondent's action in advocating the destruction of the SEIU petition, I am constrained to recommend that the Complaint be dismissed in its entirety. In view of the above conclusions I find it unnecessary to determine whether or not Mr. Carpenter was acting as an agent of NAGE Local R12-35 when he mailed out the December 29th letter advocating destruction of the SEIU petitions. ORDER It is hereby ordered that the complaint in Case No. 8-CO-36, be, and hereby is dismissed in its entirety. BURTON S. STERNBURG Administrative Law Judge Dated: December 16, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1A/ The Respondents' opposition to the General Counsel's exceptions was untimely filed and therefore was not considered by the Authority. /1/ Other than NAGE Local R12-35's responsibility for the December 29, letter, the facts for the most part are not in dispute. /2/ In order to reach a contrary conclusion, a finding must be made that the words "interfere with" appearing in Section 7116(b)(1) encompass the acts of "advocating" or "encouraging" interference with the employees statutory rights. However, a review of the legislative history offers no support for such a finding.