14:0450(73)CA - NAGE, NAGE Local R12-35 and Service Employees International Union -- 1984 FLRAdec CA

 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.