[ v40 p469 ]
The decision of the Authority follows:
40 FLRA No. 44
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 did not violate section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute). The complaint alleges that the Respondent violated section 7116(a)(1) when an inspector from the Respondent's Inspection Service stated, while testifying at the grievant's arbitration hearing, that if the arbitrator reversed the agency's discharge of the grievant, the Respondent could pursue other avenues, including the referral of the matter to the U.S. Attorney for criminal prosecution. The General Counsel and the Union filed exceptions to the Judge's decision. The Respondent filed an opposition to the General Counsel's and the Union's exceptions.
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 the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(*)
The complaint is dismissed.
(If blank, the decision does not have footnotes.)
*/ We reject, in this regard, the General Counsel's and the Charging Party's assertion that the decision of the U.S. Supreme Court in Sure-Tan v. NLRB, 467 U.S. 883 (1984), compels a conclusion that the Respondent violated section 7116(a)(1) of the Statute. In Sure-Tan, the employer was charged with violating section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3), by reporting to the Immigration and Naturalization Service certain employees known to be undocumented aliens in retaliation for their having engaged in union activity. Section 8(a)(1) and (3) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA or to discriminate in regard to conditions of employment to encourage or discourage membership in a labor organization. The Court noted that, consistent with long-standing precedent of the National Labor Relations Board, an employer violates section 8(a)(3) when it takes action "for the purpose of discouraging union activity," and that the employer did not dispute that "the anti-union animus element of this test was . . . 'flagrantly met.'" Id. at 894 (citation omitted). The Court also noted, in this regard, that the "reporting of any violation of the criminal laws is conduct which ordinarily should be encouraged," and that it is "only when the evidence establishes that the reporting of the presence of an illegal alien employee is in retaliation for the employee's protected union activity that the Board finds a violation of § 8(a)(3)." Id. at 895-86. In the case now before us, the Judge applied long-standing Authority precedent and determined, based on the entire record, that the disputed statement did not constitute unlawful interference, restraint, or coercion under section 7116(a)(1) of the Statute. We agree with the Judge's analysis and findings. Accordingly, Sure-Tan provides no basis for reversing the Judge's conclusion that an unfair labor practice was not committed in this case.