25:0447(30)CA - INS, Port of Entry, San Ysidro, CA and INS Council, AFGE Local 2805 -- 1987 FLRAdec CA
[ v25 p447 ]
The decision of the Authority follows:
25 FLRA No. 30 UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, PORT OF ENTRY,SAN YSIDRO, CALIFORNIA Respondent and IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO Charging Party Case No. 8-CA-50544 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the Respondent and the General Counsel to the attached decision of the Administrative Law Judge. The case concerns whether the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute by prohibiting an employee from wearing a union button, or lapel pin, on his uniform while on duty. II. Background The Respondent employs about 50 immigration inspectors at the San Ysidro Port of Entry, working three shifts. The inspectors are rotated among work areas at half-hour intervals each workday. They are supervised by a single first-line supervisor each day, but may be supervised by any of eight first-line supervisors are subordinate to three operations supervisors. The three operations supervisors are subordinate to the assistant port director, who in turn is subordiante to the port director. The inspectors are required to wear a uniform, composed of a light blue shirt with an INS insignia on the arm, dark blue pants, black shoes and socks, a black belt, and a tie with a tie tack. No tie is worn in the summer. A badge is worn on left pocket of the shirt and a name plate is worn on the right pocket. The Respondent's regulations and the inspectors' handbook describe the uniform requirements. First-line supervisors are responsible for ensuring that the inspectors comply with the uniform requirements. The inspectors' handbook states that the uniform should be devoid of ornaments which are not part of the uniform. However, the inspectors have been free to select their own tie tacks and belt buckles. The inspectors have worn a variety of ornaments with their uniforms, aside from buttons issued by the Respondent, without objections from management, including a small pin in the shape of an Olympic torch sold by an employee recreation association and an assortment of tie tacks and belt buckles. The Union president, Stark, has worn tie tacks depicting a football helmet, cartoon characters, handcuffs, aircraft, and small sign reading "I love America." In 1984 Stark wore a team button, 2 and 1/4 inches in diameter, during the major league baseball playoffs and the World Series. The first-line supervisors did not object to these ornaments. From May to August 1985, Stark wore a union lapel pin on the right pocket of his uniform shirt without objection by the first-line supervisors. Shaped like a shield, the pin is about 1/2 inch by 3/8 inch in size, is colored red, white, and blue, and bears the initials "A.F.G.E., AFL-CIO." The initials are recognizable within two feet of the pin. From a greater distance the pin appears to be a patriotic emblem. In August 1985, Stark wore the pin when entering the office of an operations supervisor. The port director, Kelliher, happened to be there. Kelliher asked about the pin and was told that it was a union pin. Kelliher directed Stark to remove the pin. Stark complied. Kelliher testified that he told Stark to remove the pin because it contained a union logo. In his view, everything on the uniform should pertain to law enforcement, to avoid questions from the public which might distract an inspector from his duties. III. Judge's Decision The Judge concluded that the Respondent's action in prohibiting Stark from wearing the union lapel pin with his uniform interfered with Stark's rights under section 7102 of the Statute and, therefore, the Respondent had violated section 7116(a)(1) of the Statute as alleged. He based his conclusion upon the unobtrusive nature of the pin and the absence of any showing that wearing the pin caused any confusion or interference with the duties and responsibilities of the inspectors. He recommended that the Respondent be ordered to cease and desist from prohibiting Stark or any other immigration inspectors from wearing the union membership button with their uniform while on duty. IV. Positions of the Parties The respondent argues that section 7102 does not give its uniformed inspectors the right to wear union insignia when they are on duty. The Respondent also claims that the Union waived the employees' right to wear union insignia under section 7102 when it failed to object to the restrictions on ornaments in the inspector's handbook. Finally, assuming that the Authority affirms the Judge's conclusion that a violation has been committed, the Respondent argues that the Judge's remedy should be amended to authorize only the wearing of pins of the same size as Stark's lapel pin. The General Counsel supports the Judge's decision, but excepts to the Judge's order, which directed no affirmative action other than posting of the notice. The General Counsel argues that the Respondent should be affirmatively ordered to permit Stark, or any other uniformed inspectors, to wear the union button or any other insignia that does not detract from the uniform, as well as "insigna on behalf or any other labor organization that does not detract from the uniform" V. Analysis A. The violation We agree with the Judge's conclusion that the Respondent violated the Statute as alleged in the complaint. Under section 7106(b)(1) of the Statute, an agency may elect not to bargain over the "means" of performing work. The Authority has defined the "means" of performing work to be "any instrumentality, including an agent, tool, device, measure, plan or policy used by the agency for the accomplishing or the furthering of the performing of its work." National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255, 258 (1979). Disputes involving union proposals relating to an agency's choice of a particular means, such as the composition of a uniform, are resolved on the basis of whether the proposals directly interfere with the purpose for which the agency has required a uniform to be worn. For example, American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13 (1986); and U.S. Department of Justice, Immigration and Naturalization Service and National Border Patrol Council, Local 1613, American Federation of Government Employees, 18 FLRA No. 3 (1985). There is no question that the requirement that a uniform be worn by the bargaining unit employees involved in this case is an exercise of the Agency's right to determine the means by which Agency operations are conducted. See American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982), reversed as to other matters sub nom. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984); and AFGE, National Immigration and Naturalization Service Council and Department of Justice, INS, 5 FLRC 105 (1977). Apart from any rights a union may have to bargain over the composition of a uniform, employees have the right under section 7102 of the Statute "to form, join, or assist any labor organization(.)" This section encompasses an employee's right, in the absence of special circumstances, to wear union insignia at the work place. United States Army Support Command, Fort Shafter, Hawaii, 3 FLRA 796 (1980). In Fort Shafter, in determining whether special circumstances existed, the Authority examined all the circumstances, including the size and nature of the insignia (whether or not the insignia was conspicuous), and whether wearing of the insignia could cause confusion among the public customers of the hotel as to whether the two hotel service employees involved were employed by the agency or the union. Thus, in Fort Shafter, the Authority held that the agency did not violate the Statute when it prohibited two hotel service employees from wearing union steward badges when dealing with members of the public. The Administrative Law Judge specifically found in that case that the badges were "not small or inconspicuous," and further that some "customers were confused" about whether the employees were employed by the hotel or the union. Fort Shafter, at 805. The Authority has also found a special circumstance to exist when the union insignia involved could reasonably have been interpreted as promoting illegal concerted activity and as being disruptive of agency operations. Federal Aviation Administration, Spokane Tower/Approach Control and Professional Air Traffic Controllers Organization, MEBA, AFL-CIO, 15 FLRA 668 (1984). The Authority's interpretation of section 7102 as guaranteeing an employee's right to wear union insignia in the absence of special circumstances is consistent with the approach taken in the private sector under the National Labor Relations Act. See Midstate Telephone Corporation, 262 NLRB 1291, 1292 (1982) ("It is well established that in the absence of 'special circumstances,' employees have a Section 7 right . . . to wear insignia at work referring to unions or other matters pertaining to working conditions for the purpose of mutual aid or protection.") See also Republic Aviation Corporation v. NLRB, 324 U.S. 793 (1945). The NLRB has found special circumstances to exist when the interest of employees in wearing union insignia is outweighed by an employer's legitimate interest in maintaining discipline, safety, or efficient production in the workplace. For example, Southwestern Bell Telephone Company, 200 NLRB 667 (1972); and Pratt & Whitney Aircraft Division, 134 NLRB 1632 (1961). In this case, there has been no showing that the wearing of the union lapel pin interfered in any way with the purpose for which the Agency requires the uniform to be worn. There is, therefore, no conflict with the Agency's right under section 7106(b)(1) to determine the means of performing the Agency's work. Further, the Judge found, and we agree, that there are no special circumstances in this case so as to negate the employee's right under section 7102 to wear the insignia. Specifically, the Judge found that the pin is small and unobtrusive and did not and could not reasonably be expected to interfere with Stark's work performance or the performance of other inspectors, or interfere with the public's ability to recognize Stark as a representative of a Government authority. We agree with these findings and conclude that Respondent's action interfered with Stark's rights under section 7102 and violated section 7116(a)(1). Finally, the Respondent's contention that the Union waived the employees' rights under section 7102 by failing to object to the restrictions on the wearing of ornaments which may exist in the inspectors' handbook cannot be sustained. The bargaining representative has no authority to waive rights guaranteed employees under section 7102 of the Statute. Department of Health and Human Services, Social Security Administration, Southeastern Program Service Center, 21 FLRA No. 93 (1986) at n.4 and accompanying text. B. The remedy We find that the Respondent violated the Statute by prohibiting the wearing of particular union insignia in particular circumstances. Therefore, in our order we shall direct that the Respondent cease and desist from interfering with the wearing of the insignia involved, or similar insignia. The Judge clearly was correct that the violation did not merely affect Stark's right under section 7102 of the Statute, but also the statutory rights of the other inspectors at the San Ysidro Port of Entry. As such, we agree with the General Counsel that the purposes and policies of the Statute require an order which affirmatively directs the Respondent to permit Stark and other uniformed inspectors to wear the lapel pin of the American Federation of Government Employees, AFL-CIO or similar insignia while at work. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, it is ordered that the United States Immigration and Naturalization Service, Port of Entry, San Ysidro, California, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing its employees by prohibiting Ted Stark or any other immigration inspector from wearing the American Federation of Government Employees, AFL-CIO, union lapel pin or similar union insignia while on duty. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Permit Mr. Ted Stark or any other immigration inspector to wear an American Federation of Government Employees, AFL-CIO, lapel pin or similar union insignia while they are on duty. (b) Post at its facilities copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Port Director and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. Issued, Washington, D.C., February 2, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT: WE WILL NOT prohibit Ted Stark or any other immigration inspector from wearing the American Federation of Government Employees, AFL-CIO, union lapel pin or similar union insigna while on duty. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL permit Ted Stark or any other immigration inspector to wear an American Federation of Government Employees, AFL-CIO, lapel pin or similar union insignia while they are on duty. Dated: . . . By: . . . This Notice must remain posted for 60 consecutive days from the date of posting, and must not be alterned, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 8-CA-50544 UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, PORT OF ENTRY, SAN YSIDRO, CALIFORNIA Respondent and IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO Charging Party Deborah S. Wagner Esq. For General Counsel Melainie Fitzsimmons, Esq. For Respondent Mr. Richard Walker For Charging Party Before: BURTON S. STERNBURG 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. Section 7101, et seq. and the Rules and Regulations issued thereunder. Pursuant to a charge filed on September 4, 1985, by Local 2805, Immigration and Naturalization Service Council, American Federation of Government Employees, AFL-CIO, (hereinafter called the Union or Local 2805), a Complaint and Notice of Hearing was issued on November 29, 1985 by the Regional Director for Region VIII, Federal Labor Relations Authority, Los Angeles, California. The Complaint alleges that the United States Immigration and Naturalization Service, Port of Entry, San Ysidro, California, (hereinafter called the Respondent or INS), violated Section 7116(a)(1) of the Federal Service Labor-Management Relations Statute by virtue of its actions in forbidding a unit employee from displaying a lapel pin bearing the logo and initials of the Union on his uniform. A hearing was held in the captioned matter on February 24, 1986, in San Diego, California. All parties were afforded the opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on March 24 and March 21, 1986, respectively, which have been duly considered. /1/ Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The INS has recognized American Federation of Government Employees (National Immigration and Naturalization Council), AFGE, as the collective bargaining agent of "all personnel of the Immigration and Naturalization Service, except professionals, those assigned to Border Patrol Sectors and those excluded from coverage by the Civil Service Reform Act." Local 2805, the Charging Party, is the AFGE'S representative at the San Ysidro, California, Port of Entry. Mr. Ted C. Stark, an Immigration Inspector, at the time of the events described herein was president of Local 2805. The approximately fifty Immigration Inspectors employed at the San Ysidro Port of Entry work on three separate shifts and are rotated from one shift to another each pay period. During any given day, the Immigration Inspectors rotate from one designated area to another every half hour. Thus, as explained by Mr. Stark, an Inspector might work the first half hour at pedestrian primary inspecting applicants for entry approaching on foot, then be switched the second half hour to doing secondary inspections on pedestrians, then be switched to a half hour stint inspecting buses, and later be switched to a half hour assignment of inspecting vehicle traffic. While the Inspectors are constantly switching assignments on the half hour, the supervisors do not rotate during the day and are assigned to one office for the entire day. Thus, despite their half-hour rotations, the Immigration Inspectors remain under one supervisor's supervision for the entire day. However, on any given day, an Immigration Inspector can be assigned to any of the eight first line supervisors. Over the first line supervisors are three operations supervisors, who are subordinate to the Assistant Port Director who in turn is subordinate to the Port Director. While working at their inspection duties, the Immigration Inspectors are required to wear a uniform which consists of a light blue shirt with an INS insignia on the arm, dark blue pants, black shoes and socks, a black belt and a tie with a tie tack. In the summer the uniform changes to a short sleeve shirt without a tie. On the shirt the Immigration Inspector wears a badge on the left shirt pocket and a name plate on the right breast shirt pocket. The tie tack worn by Mr. Stark was a U.S. Border Patrol. The INS did not have an official tie tack as of August 26, 1985 when the events underlying the instant complaint occurred. Section 2415.01 of the Administrative Manual, entitled "Service Uniforms -- Immigration Inspector" contains detailed specifications for the uniform and Section 2415 entitled "Service Uniforms -- Inspections" assigns the responsibility of making sure that the uniform is worn properly to the first line supervisors. The Inspectors Officers' Handbook under the title "Personal Appearance" provides in pertinent part as follows: "Where a uniform is required, it should be complete in all details and devoid of ornaments that are not part of the uniform." Despite the proscription in the Officers' Handbook, Mr. Stark testified, without contradiction, that a number of adornments have been worn by the Inspectors over the years without any objection from management. Thus, in 1984, just prior to the Olympics, the prespondent issued a button reading "WE SERVE with Courtesy and Pride, I.N.S." which was some 2 and 1/2 inches in diameter to its Inspectors. Although wearing of the pin was optional, most Inspectors initially wore the pin but as time wore on they ceased wearing it. Another ornament issued by Respondent was a length of service pin, which was a 1/2 inch in diameter. This pin was attached to the name plate; pocket flat, badge, or necktie of the inspector who chose to wear it. Aside from the above pins, it appears that the employees, with tacit approval from management, also wore small pins in the shape of an olympic torch which were sold by the Welfare and Recreation Office, an employee association. These latter pins, unlike the Courtesy and Pride buttons; have continued to be worn by the Inspectors. They are worn in the same position as the length of service pin. In addition to the olympic torch pin, according to Mr. Stark, there have been a number of additional tie tacks and belts worn by the Inspectors. The ornaments worn by Mr. Stark include tie tacks in the shape of a football helmet, cartoon characters like Yosemite Sam and a Smurf, handcuffs, aircraft and a small one inch sign reading "I Love America". Finally, Mr. Stark testified that in 1984 when the San Diego Padres were in the playoffs and World Series, he wore a button depicting a cartoon character swinging a bat and advertising the San Diego Padres. This button was 2 and 1/4 inches in diameter. Mr. Stark's testimony that he wore the above buttons or pins without any objection from the Respondent stands uncontradicted in the record. On or about August 26, 1985, Mr. Stark went into the Operations Supervisor's office wearing a union pin, in the shape of shield bearing the initials A.F.G.E., AFL-CIO, on the flap of his right shirt pocket. The pin, red, white and blue in color, measured 1/2 inch by 3/8 inch. /2/ Port Director Edward Kelliher, who happened to be in the office when Mr. Stark walked in, asked Mr. Stark what the pin was. When Mr. Stark informed Mr. Kelliher that it was a union pin, Mr. Kelliher told him to "take the damn thing off". Mr. Stark immediately complied. According to Mr. Stark, he had been wearing the union pin since May without having had any objections from the various supervisors who had observed him wearing it. At times he wore it on his tie and at other times he wore it on his shirt pocket. According to Mr. Stark, no member of the public had ever commented on the pin or asked its significance. Further, according to Mr. Stark, the wearing of the pin had not confused anyone with respect to whom his employer was. Mr. Kelliher testified that he had Mr. Stark remove the union pin because it contained a union logo. It was his opinion that everything on a uniform should pertain to law enforcement, otherwise someone might question the Inspector about the pin and thereby distract him from his duties. According to Mr. Kelliher only the Courtesy and Pride button and the length of service pins were adornments formally authorized by INS. He considered the Border Patrol tie tack and the olympic torch pin to be permissible although not expressly authorized. Further, according to Mr. Kelliher, if he had observed Inspectors wearing the remaining buttons or pins described, supra, such as football helmets, etc., he would have requested that they be removed, although he admitted that the regulations were silent as to the wearing of tie tacks. Ms. Helen Fillman, a Supervisory Labor Relations Specialist, testified that the Administrative Manual does not regulate tie tacks and therefore the Inspectors were free to select their own tie tacks. Discussion and Conclusions The General Counsel, citing the Authority's decision in United States Support Command, Fort Shafter, Hawaii, 3 FLRA 796 and the Supreme Court Decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793, takes the position that in the absence of special circumstances the employees have a right under the Statute to wear a union insignia at the workplace. Thus, unless the insignia negates the purpose of the uniform and causes confusion, interferes with discipline or work production, or interferes with efficiency and safety, an employee is entitled to wear the union button on his uniform. According to the General Counsel, inasmuch as the special circumstances cited above have not been established, Respondent interfered with Mr. Stark's Section 7102 right to support the Union when it requested him to cease wearing the union button on his uniform and thereby violated Section 7116(a)(1) of the Statute. The Respondent, on the other hand, relying primarily on the negotiability decision of the Federal Labor Relations Council in AFGE, National Immigration and Naturalization Service Council & INS, FLRC No. 76A-26, January 18, 1977, takes the position that wearing of the union button or pin would negate the purposes of the uniform and cause confusion. In such circumstances the Respondent's action in denying Mr. Stark the right to wear the union pin or button was not violative of Section 7116(a)(1) of the Statute. The Respondent further argues that in any event there was no violation of the employee's Section 7102 rights since there was no showing that Mr. Stark was engaged in representational activity or that collective bargaining was in progress. The Respondent also argues that there was no unfair labor practice since the Respondent's activity was at best isolated and devoid of any intent to discourage union activity. Finally, Respondent argues that management rights are preeminent, and that under the circumstances present herein, it was within its rights in banning the wearing of the union button or pin. In support of this latter argument, Respondent states that "this adornment has the potential to cause confusion in the eye of the beholder, to detract from the law enforcement purposes of the uniform, and it had the potential to cause disciplinary problems amongst the employees." It is clear from the Federal Labor Relations Council's decision in AFGE, National Immigration and Naturalization Service Council & INS, supra, the Authority's decision in Fort Shafter, supra, and the Supreme Court's decision in Republic Aviation, supra, that in the absence of Special circumstances, employees have a right both under the Statute and the NLRA to wear a union insignia at the work place. In reaching its decision in AFGE, National Immigration & Naturalization Service Council & INS, supra, that a union proposal to wear a 3x4 inch union insignia as an arm patch on an INS inspector's uniform was non-negotiable due to the fact that the wearing of the patch would cause confusion and negate the purposes of the uniform, the Council stated, among other things, " . . . that the wearing of inconspicuous union buttons or other indicia of union affiliation, which do not negate the purpose for which uniforms are required, would not be violative of Section 12(b)(5)" of Executive Order 11491. Similarly, in Fort Shafter, supra, the Authority, while denying employees the right to wear a union steward's badge approximately 3 inches long by one and one-half inches wide because of its "conspicuous nature", stated "the Authority agrees with the (Administrative Law Judge's) conclusion that in the absence of special circumstances, employees have a riqht under the Statute to wear union insignia at the work place". In Fort Shafter, the employees sought to wear the union badge on their waiter's uniforms. With respect to the wearing of union buttons or pins under the NLRA, which also accords employees the right to "assist" a labor organization, the Supreme Court in Republic Aviation, supra, upheld a National Labor Relations Board finding that, in the absence of unusual or special circumstances, employees had a right to wear union buttons at the work place. In the instant case there has been no showing, whatsoever, that the wearing of the half inch (approximately the size of a dime) union button has in any way interfered with the work performance of Mr. Stark or any other Inspector. In fact, the red, white and blue shield which is the union button would appear to the casual observer to be a patriotic emblem from any distance further than two feet. It is only from a distance of approximately two feet or less that one can discern the letters "A.F.G.E., AFL-CIO". Considering the unobtrusive nature of the dime size union pin, as well as the absence of any showing that the wearing of the pin caused any confusion or interference with the duties and responsibilities of the Inspectors, I find that Respondent's action in prohibiting Mr. Stark from wearing the union button on his uniform while he was in contact with the public interfered with Mr. Stark's Section 7102 rights and thereby violated Section 7116(a)(1) of the Statute. Cf. Consolidated Casino Corp., 164 NLRB No. 132; Floridan Hotel of Tampa, Inc., 137 NLRB No. 161, enf. as modified on other grounds, 318 F. 2d 545; and Department of Transportation, FAA, Aeronautical Center, A/SLMR No. 117, 1 A/SLMR 556, rev. in part on other grounds, 1 FLRC 246, where the NLRB and the Assistant Secretary of Labor on the basis of similar facts reached similar conclusions under the NLRA and Executive Order 11491, respectively. Contrary to Respondent, I can not find that the deprivation of a Section 7102 right is "isolated" solely because only one employee was involved.