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39 FLRA No. 24

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE ARMY

WATERVLIET ARSENAL

WATERVLIET, NEW YORK

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2109, INDEPENDENT

(Charging Party)

1-CA-90277

DEPARTMENT OF THE ARMY

WATERVLIET ARSENAL

WATERVLIET, NEW YORK

(Respondent)

and

ARTHUR W. BROOKS

(Charging Party)

1-CA-90279

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R2-98

SEIU/AFL-CIO

(Respondent)

and

GEORGE W. LaWARE, JR.

(Charging Party)

1-CO-90029

DECISION AND ORDER

January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent Department of the Army, Watervliet Arsenal, Watervliet, New York (Watervliet Arsenal) violated section 7116(a)(1), (2) and (3) of the Federal Service Labor-Management Relations Statute (the Statute) by its conduct related to an agreement entered into with Respondent National Association of Government Employees Local R2-98, SEIU/AFL-CIO (NAGE) that provided leave procedures for a NAGE-sponsored asbestos testing program. Under those procedures, bargaining unit employees who are dues paying members of NAGE could participate in the program on excused absences, but bargaining unit employees who are not dues paying members of NAGE could participate in the program on off-duty hours only. The Judge further found that by entering into the agreement with Respondent Watervliet Arsenal, Respondent NAGE violated section 7116(b)(1) and (2) and section 7116(b)(1) of the Statute.

Respondent NAGE filed exceptions to the Judge's decision and order. The General Counsel filed an opposition to Respondent NAGE's exceptions. Respondent Watervliet did not file exceptions to the Judge's decision and order.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings,^(*) conclusions and recommended order.

II. Order

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that:

A. The Department of the Army, Watervliet Arsenal, Watervliet, New York shall:

1. Cease and desist from:

(a) Encouraging or discouraging membership in a labor organization by discrimination in connection with a condition of employment by providing for dues paying members of the National Association of Government Employees, Local R2-98, SEIU/AFL-CIO (NAGE) to participate in a NAGE-sponsored asbestos testing program on excused absences (administrative leave) while requiring bargaining unit employees who are not dues paying members of NAGE to participate in the program on off-duty hours only.

(b) Assisting any labor organization, other than to furnish, upon request, customary and routine services and facilities, if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status.

(c) Interfering with, restraining or coercing employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and their right to freely choose, from labor organizations on the ballot, that labor organization which the employees wish to have represent them, or their right to freely choose not to be represented by a labor organization.

(d) 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 in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Afford bargaining unit employees who are not dues paying members of NAGE and who did not participate in the NAGE-sponsored asbestos training program on May 2 and 3, 1989, the opportunity to participate in a make-up program for such employees to be sponsored by NAGE. Nonmembers of NAGE shall be allowed to participate on excused absence (administrative leave). Any bargaining unit employee who previously participated in the program by using annual or sick leave shall have such leave restored.

(b) Post at its facilities at Watervliet Arsenal, Watervliet, New York, where bargaining unit members represented by NAGE are located, copies of the attached Notice (Appendix I) on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such 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 I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

B. The National Association of Government Employees, Local R2-98, SEIU/AFL-CIO shall:

1. Cease and desist from:

(a) Causing or attempting to cause the Department of the Army, Watervliet Arsenal, Watervliet, New York to discriminate against any employee in connection with a condition of employment on the basis of membership or nonmembership in NAGE.

(b) Interfering with, restraining or coercing employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

(c) In any like or related manner interfering with, restraining or coercing unit employees in the exercise of 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) Afford bargaining unit employees who are not dues paying members of NAGE the opportunity to participate in a make-up NAGE-sponsored asbestos testing program for such employees which shall be identical to the testing previously offered to dues paying members of NAGE on an excused absence (administrative leave) basis.

(b) Post at its business offices and in all places where notices to employees in its bargaining unit are customarily posted copies of the attached Notice (Appendix 2) on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the President and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Submit appropriate signed copies of the Notice to the Commanding Officer, Department of the Army, Watervliet Arsenal, Watervliet, New York, for posting in conspicuous places where unit employees represented by NAGE are located. Copies of the Notice should be maintained for a period of 60 consecutive days from the date of posting.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region 1, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

APPENDIX I

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT encourage or discourage membership in a labor organization by discrimination in connection with a condition of employment by providing for dues paying members

of National Association of Government Employees, Local R2-98,

SEIU/AFL-CIO (NAGE) to participate in a NAGE-sponsored asbestos testing program on excused absences (administrative leave) while requiring bargaining unit employees who are not dues paying members of NAGE to participate in the program on off-duty hours only.

WE WILL NOT assist any labor organization, other than to furnish, upon request, customary and routine services and facilities, if the services and facilities are also furnished

on an impartial basis to other labor organizations having equivalent status.

WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and their right to freely choose, from labor organizations on the ballot, that labor organization which the employees wish to have represent them, or their right to freely choose not to be represented by a labor organization.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL afford bargaining unit employees who are not dues paying members of NAGE and who did not participate in the NAGE-sponsored asbestos training program on May 2 and 3, 1989 the opportunity to participate in a make-up program for such employees to be sponsored by NAGE. Nonmembers of NAGE shall be allowed to participate on excused absence (administrative leave). Any bargaining unit employee who previously participated in the program by using annual or sick leave shall have such leave restored.

________________________
(Activity)

Dated:__________ By:________________________

(Signature) (Title)

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, Region I, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.

APPENDIX II

NOTICE TO OUR MEMBERS AND OTHER EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:

WE WILL NOT cause or attempt to cause the Department of the Army, Watervliet Arsenal, Watervliet, New York to discriminate against employees in connection with a condition of employment on the basis of membership or nonmembership in NAGE.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

WE WILL NOT in any like or related manner interfere with, restrain or coerce unit employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL represent the interests of all employees in the unit we represent without discrimination and without regard to labor organization membership.

WE WILL afford bargaining unit employees who are not dues paying members of NAGE the opportunity to participate in a make-up NAGE-sponsored asbestos testing program for such employees which shall be identical to the testing previously offered to dues paying members of NAGE on an excused absence (administrative leave) basis.

_____________________
(Union)

Dated:__________ By:______________________________

(Signature) (Title)

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, Region I, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Judge incorrectly found that the bargaining unit involved in this case is made up of 1200-1300 employees, 400-500 of whom are dues paying members of Respondent NAGE. The record indicates that there are 1787 employees in the unit, 381 of whom are dues paying members of Respondent NAGE. This inadvertent error does not affect the disposition of this case.

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