Pennsylvania Army and Air, National Guard (Respondent) and Association of Civilian Technicians (Complainant)
[ v03 p8 ]
03:0008(2)CA
The decision of the Authority follows:
3 FLRA No. 2
PENNSYLVANIA ARMY AND AIR
NATIONAL GUARD
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS
Complainant
Assistant Secretary
Case No. 20-06580(CA)
DECISION AND ORDER
ON AUGUST 27, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER AND THE RESPONDENT FILED A RESPONSE TO THE COMPLAINANT'S
EXCEPTIONS.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040) WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT HEARING AND
FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS AND RESPONDENT'S RESPONSE
TO THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 20-06580(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., APRIL 4, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
DENNIS T. GUISE, ESQUIRE
ASSISTANT ATTORNEY GENERAL
COMMONWEALTH OF PENNSYLVANIA
FORT INDIANTOWN GAP
ANNVILLE, PENNSYLVANIA 17003
FOR THE RESPONDENT
LEONARD SPEAR, ESQUIRE
MERANZE, KATZ, SPEAR AND WILDERMAN
LEWIS TOWER BUILDING-- 12TH FLOOR
N.E. CORNER, 15TH AND LOCUST STREETS
PHILADELPHIA, PENNSYLVANIA 19102
FOR THE COMPLAINANT
BEFORE: ROBERT J. FELDMAN
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
(HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 CFR PART 203. THE
DECISION AND RECOMMENDATION THAT FOLLOWS IS ISSUED FOR THE FEDERAL LABOR
RELATIONS AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND
REGULATIONS PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY
2, 1979, PP. 5-8.
STATEMENT OF THE CASE
THE COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 19(A)(1),
(2), (3), (5) AND (6) OF THE ORDER IN THAT IT PERMITTED REPRESENTATIVES
OF THE NATIONAL GUARD ASSOCIATION INSURANCE TRUST AND THE NORTHWESTERN
LIFE INSURANCE COMPANY TO CONDUCT MEETINGS AND SELL THEIR INSURANCE TO
THE PERSONNEL EMPLOYED BY RESPONDENT. IT IS FURTHER ALLEGED THAT THE
PROFITS FROM THE SALE OF SUCH INSURANCE GO TO THE NATIONAL GUARD
ASSOCIATION, WHICH, HAS TAKEN THE PUBLIC POSITION THAT RESPONDENT'S
TECHNICIANS SHOULD BE REMOVED FROM THE SCOPE AND PROVISIONS OF THE
ORDER.
NONE OF THE DOCUMENTS TRANSMITTED TO THIS OFFICE BY THE REGIONAL
ADMINISTRATOR CONTAINS ANY REFERENCE TO WHAT DISPOSITION, IF ANY, WAS
MADE OF THE ALLEGED VIOLATIONS OF SECTIONS 19(A)(2), (3) OR (5) OF THE
ORDER. IN HIS NOTICE OF HEARING, HOWEVER, THE REGIONAL ADMINISTRATOR
REFERS FOR HEARING ONLY THE ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND
(6). INFERENTIALLY, THEREFORE, IT APPEARS THAT SOME PORTIONS OF THE
COMPLAINT WERE WITHDRAWN OR SETTLED, OR WERE DISMISSED BY THE REGIONAL
ADMINISTRATOR, OR PERHAPS SEVERED AND REFERRED BY HIM TO THE ASSISTANT
SECRETARY UPON STIPULATED FACTS.
WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(A)(3), IT IS
APPARENT FROM THE COMMENTS OF COUNSEL AND FROM A FOOTNOTE IN
RESPONDENT'S POST-HEARING BRIEF THAT SO MUCH OF THE COMPLAINT AS CHARGED
RESPONDENT WITH SPONSORING, CONTROLLING OR ASSISTING A LABOR
ORGANIZATION WAS DISMISSED BY THE REGIONAL ADMINISTRATOR AND NO REQUEST
FOR REVIEW THEREOF WAS MADE. IN ANY EVENT, I CONCLUDE THAT OTHER
ALLEGED VIOLATIONS HAVE BEEN DISPOSED OF IN ACCORDANCE WITH THE
PROVISIONS OF 29 CFR 203.7 AND 203.8, AND THAT THE SOLE QUESTION
REFERRED FOR MY DETERMINATION IS WHETHER THE FACTS AND CIRCUMSTANCES
ESTABLISHED AT THE HEARING CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OR
(6), OR BOTH.
FINDINGS OF FACT
COMPLAINANT IS THE DULY RECOGNIZED EXCLUSIVE BARGAINING AGENT FOR
CIVILIAN TECHNICIANS IN RESPONDENT'S EMPLOY. FOR SOME YEARS, MANY OF
ITS MEMBERS (AND OTHER EMPLOYEES IN THE UNIT) HAD PARTICIPATED IN A
VOLUNTARY INSURANCE PROGRAM KNOWN AS THE TECHNICIAN PROTECTION PLAN,
WHICH WAS ADMINISTERED UNDER THE AUSPICES OF THE NATIONAL GUARD
ASSOCIATION OF THE UNITED STATES (NGAUS) INSURANCE TRUST, WITH THE LIFE
INSURANCE COMPANY OF NORTH AMERICA AS THE CARRIER. RESPONDENT PERMITTED
PREMIUMS UNDER THE PLAN TO BE PAID BY PAYROLL DEDUCTIONS, BUT OTHERWISE
HAD NO VOICE IN ITS MANAGEMENT OR ADMINISTRATION.
NGAUS IS A NATION-WIDE ORGANIZATION OF NATIONAL GUARD OFFICERS.
AMONG ITS PURPOSES ARE TO PROTECT AND PROMOTE THE INTERESTS OF GUARDSMEN
THROUGHOUT THE COUNTRY AND TO MAKE THEIR VIEWS KNOWN TO APPROPRIATE
FEDERAL AGENCIES AND OFFICIALS. IN THE CONDUCT OF ITS LEGISLATIVE
PROGRAM, IT ACTIVELY SUPPORTED A BILL (S. 274) IN THE 95TH CONGRESS TO
PROHIBIT UNION ORGANIZATION AND MEMBERSHIP IN THE ARMED FORCES, AND ITS
EXECUTIVE VICE-PRESIDENT TESTIFIED ON ITS BEHALF BEFORE A SUBCOMMITTEE
OF THE HOUSE ARMED SERVICES COMMITTEE WITH PARTICULAR REFERENCE TO ITS
ADVOCACY OF THE PROVISIONS THEREIN (LATER DELETED BY AMENDMENT)
PROHIBITING UNIONIZATION OF NATIONAL GUARD TECHNICIANS.
LISTED AMONG THE ASSETS OF NGAUS IS A RESTRICTED FUND KNOWN AS THE
CAPITAL IMPROVEMENT FUND, WHICH WAS ESTABLISHED TO PROVIDE FOR
MAINTENANCE AND IMPROVEMENT OF THE NATIONAL GUARD MEMORIAL BUILDING IN
WASHINGTON. ANOTHER RESTRICTED FUND CALLED THE INSURANCE RESERVE
CONTINGENCY FUND IS USABLE SOLELY FOR THE BENEFIT OF INSUREDS AND IS NOT
AVAILABLE FOR ANY OTHER PURPOSE.
UNDER DATE OF JULY 28, 1977, RESPONDENT'S PERSONNEL OFFICER, COL.
NILES, ADVISED THE TECHNICIAN PERSONNEL OFFICE (TPO) THAT ON AUGUST 1,
1977, THE INSURER OR CARRIER FOR THE TECHNICIAN PROTECTION PLAN WOULD BE
CHANGED FROM L.I.N.A. TO NORTHWESTERN NATIONAL LIFE INS. CO., BUT FOR
THE PRESENT, COVERAGE WOULD NOT BE INTERRUPTED. ON OCTOBER 21, 1977,
COL. NILES ADVISED TPO AS FOLLOWS: (1) DUE TO THE CHANGE OF CARRIERS,
EACH TECHNICIAN WOULD HAVE TO EXECUTE A NEW AUTHORIZATION FORM TO
ESTABLISH THE COVERAGE DESIRED; (2) IN ADDITION TO THE TERM LIFE AND
DISABILITY INCOME UNDER THE OLD PLAN, PERMANENT LIFE INSURANCE WOULD NOW
BE AVAILABLE; AND (3) BETWEEN OCTOBER 31 AND NOVEMBER 11, 1977,
BRIEFINGS WOULD BE HELD AT NATIONAL GUARD INSTALLATIONS THROUGHOUT THE
STATE AS PER ATTACHED SCHEDULE, DURING WHICH REPRESENTATIVES OF
NORTHWESTERN NATIONAL LIFE AND OF TPO WOULD EXPLAIN THE COVERAGES
AVAILABLE.
AFTER THE BRIEFINGS WERE INITIATED, COL. NILES RECEIVED NOTICE OF A
UNION OBJECTION TO HOLDING THEM WITHOUT PRIOR CONSULTATION. NO ACTION
WAS TAKEN ON THE OBJECTION, HOWEVER, AND THE BRIEFINGS WERE HELD AS
SCHEDULED.
ALL CIVILIAN TECHNICIANS WERE REQUESTED BY TPO TO ATTEND THE
BRIEFINGS, WHICH WERE HELD IN VARIOUS FACILITIES OF RESPONDENT DURING
WORKING HOURS SO AS TO FACILITATE PARTICIPATION BY TECHNICIANS ASSIGNED
TO EVERY GROUP AT EVERY LOCATION. UNION OFFICIALS WERE AMONG THOSE WHO
ATTENDED. AT EACH SESSION, WHICH WAS CONDUCTED BY A NORTHWESTERN
NATIONAL LIFE REPRESENTATIVE, ASSISTED BY ONE OR TWO NON-COMMISSIONED
OFFICERS FROM TPO, A SLIDE PRESENTATION WAS SHOWN AND THE DETAILS OF THE
INSURANCE AVAILABLE WERE EXPLAINED. THE SLIDE PRESENTATION, WHICH HAD
BEEN PRODUCED FOR AND AT THE DIRECTION OF NGAUS, WAS TO ALL INTENTS AND
PURPOSES A "COMMERCIAL" FOR NGAUS AND ITS TECHNICIAN PROTECTION PLAN.
IT WAS, OF COURSE, EXTREMELY LAUDATORY OF THE WORK AND ACHIEVEMENTS OF
NGAUS ON BEHALF OF GUARDSMEN AND TECHNICIANS, NO MENTION BEING MADE OF
ANY EFFORTS OR ACCOMPLISHMENTS OF COMPLAINANT OR ANY OTHER ORGANIZATION
IN THE INTERESTS OF THE SAME CONSTITUENCY.
WITH RESPECT TO THE COVERAGE OFFERED, IT WAS MADE CLEAR AT EACH
BRIEFING THAT BESIDES THE ADDITION OF OPTIONAL PERMANENT LIFE INSURANCE
FOR TECHNICIANS AND THEIR FAMILIES, TWO SIGNIFICANT CHANGES WERE MADE IN
THE PROGRAM: (A) PREMIUMS WERE INCREASED; AND (B) INSTEAD OF
EXPERIENCE CREDITS (I.E., DIVIDENDS) BEING DISTRIBUTED TO PARTICIPANTS,
THEY WOULD BE PAID TO THE HISTORICAL SOCIETY OF THE MILITIA AND NATIONAL
GUARD (HEREAFTER "HISTORICAL SOCIETY").
THE HISTORICAL SOCIETY IS A NON-PROFIT CHARITABLE AND EDUCATIONAL
CORPORATION, ORGANIZED IN 1975 UNDER THE LAWS OF THE DISTRICT OF
COLUMBIA FOR THE DECLARED PURPOSE OF FOSTERING AND ENCOURAGING AN
ENLIGHTENED PUBLIC APPRECIATION OF THE CONTRIBUTIONS OF THE AMERICAN
MILITIA IN THE FOUNDING OF THIS NATION AND ITS DEFENSE AGAINST ENEMIES
FOREIGN AND DOMESTIC, AND OF THE UNIQUE STATUS OF THE NATIONAL GUARD,
UNDER FEDERAL CONTROL AS RESERVE COMPONENTS OF THE ARMY AND AIR FORCE IN
TIME OF WAR OR NATIONAL EMERGENCY, AND UNDER STATE CONTROL IN THEIR
MILITIA STATUS AT ALL OTHER TIMES. ITS PRIMARY FUNCTION IS TO RAISE
FUNDS FOR THE MAINTENANCE AND PRESERVATION OF THE NATIONAL GUARD
MEMORIAL BUILDING IN WASHINGTON.
AT BRIEFING SESSIONS, TECHNICIANS WERE URGED TO SIGN APPLICATIONS FOR
INSURANCE, OR IN THE ALTERNATIVE, TO SIGN A DECLINATION FORM. NO
ATTENDANCE WAS TAKEN, BUT A RECORD WAS MADE OF THE APPLICATIONS AND
DECLINATION FORMS THEREAFTER RECEIVED. SUBSEQUENTLY, THOSE WHO HAD
SUBMITTED NEITHER WERE NOTIFIED THAT THEY MUST SUBMIT ONE OR THE OTHER.
CONCLUSIONS OF LAW
FROM THE FOREGOING FACTS, THE CONCLUSION IS IRRESISTIBLE THAT
RESPONDENT SPONSORED THE BRIEFINGS AND ASSISTED NGAUS IN ITS PROMOTION
OF ITS TECHNICIAN PROTECTION PLAN. IT APPEARS, HOWEVER, THAT THE
COMPLAINT WAS DISMISSED WITH RESPECT TO SECTION 19(A)(3) ON THE GROUND
THAT NGAUS IS NOT A LABOR ORGANIZATION AS DEFINED BY THE ORDER, CITING
FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC TOWER, A/SLMR NO. 300
(1973). MOREOVER, THE CIRCUMSTANCES OF THIS CASE, WHILE INDICATING A
CALLOUSED DISREGARD OF UNION SENSIBILITIES, MIGHT NOT WARRANT A FINDING
THAT AIDING THE SOLICITATION OF THE INSURANCE IN QUESTION IS PER SE
INCONSISTENT WITH THE PURPOSES OF THE ORDER. SEE DEPARTMENT OF THE AIR
FORCE, GRISSOM AIR FORCE BASE, PERU, INDIANA, FLRC NO. 77A-77, A/SLMR
NO. 1057(1978).
IN CONSIDERING WHETHER RESPONDENT INTERFERED WITH, RESTRAINED OR
COERCED AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER
(SECTION 19(A)(1)), ONE MUST BEAR IN MIND THAT NEITHER PARTICIPATION IN
THE PLAN NOR ATTENDANCE AT THE BRIEFINGS WAS COMPULSORY. THOUGH IT IS
REASONABLE TO INFER FROM THE EVIDENCE THAT RESPONDENT URGED ALL
TECHNICIANS TO DO BOTH, IT HAS NOT BEEN ESTABLISHED THAT ANYONE WAS
ORDERED TO DO EITHER OR THAT ANY ADVERSE ACTION WAS TAKEN WITH RESPECT
TO ANY TECHNICIAN WHO FAILED TO COMPLY WITH EITHER REQUEST.
CONSEQUENTLY, I FIND IT DIFFICULT TO ASCERTAIN WHAT RIGHT, IF ANY,
ASSURED BY THE ORDER, WAS DENIED OR DIMINISHED BY RESPONDENT'S CONDUCT.
IT IS TRUE THAT AT THE BRIEFINGS THOSE PRESENT WERE SUBJECTED TO A
"SALES PITCH" THAT INCLUDED A LAUDATORY DEPICTION OF AN ORGANIZATION
THAT IS AVOWEDLY "ANTI-MILITARY UNION". ALTHOUGH THE PRESENTATION MAY
HAVE OVERSTATED THE CONTRIBUTION OF NGAUS TO THE ADVANCEMENT OF THE
INTERESTS OF TECHNICIANS AND FAILED TO RECOGNIZE THE EFFORTS OF OTHERS,
IT CONTAINED NOTHING DEROGATORY TO COMPLAINANT OR ANY OTHER LABOR
ORGANIZATION. I RECALL NO TESTIMONY TO THE EFFECT THAT ANYONE WAS
PREVENTED FROM WALKING OUT OF A BRIEFING IF HE FOUND IT OBJECTIONABLE.
IF THE PROGRAM WERE NOT ENTIRELY VOLUNTARY, THE CHANGE IN THE
PROVISIONS FOR PAYMENT OF DIVIDENDS MIGHT PRESENT SERIOUS PROBLEMS.
CERTAINLY IT WOULD BE CLEARLY INCONSISTENT WITH THE PURPOSES OF THE
ORDER TO REQUIRE EMPLOYEES TO MAKE MONETARY CONTRIBUTIONS TO THE
HISTORICAL SOCIETY OR ANY SIMILAR ORGANIZATION. THOUGH THE CORPORATE
AND FISCAL RELATIONSHIPS BETWEEN THE HISTORICAL SOCIETY AND NGAUS ARE
NOT CLEARLY SPELLED OUT IN THE RECORD, IT IS NOT UNREASONABLE TO DRAW AN
INFERENCE THAT THE DIVIDENDS TO BE RECEIVED BY THE HISTORICAL SOCIETY
WILL BENEFIT NGAUS TO SOME EXTENT BY DIMINISHING, OR PERHAPS
ELIMINATING, ITS BURDEN OF MAINTAINING THE MEMORIAL BUILDING. AS A
RESULT, IT CAN BE SAID THAT TECHNICIANS WHO PARTICIPATE IN THE NEW PLAN
ARE LIKELY TO CONTRIBUTE INDIRECTLY TO NGAUS. SINCE NONE OF THEM ARE
OBLIGED, HOWEVER, TO PARTICIPATE IN THE PLAN (AND IT WAS NOT SHOWN THAT
SIMILAR COVERAGE IS NOT OTHERWISE AVAILABLE AT COMPARABLE COST), NO SUCH
CONTRIBUTIONS ARE REQUIRED.
AS TO A REFUSAL TO CONSULT, CONFER OR NEGOTIATE WITH THE RECOGNIZED
BARGAINING AGENT AS REQUIRED BY THE ORDER (SECTION 19(A)(6)), THERE IS
NO DOUBT THAT RESPONDENT DECLINED COMPLAINANT'S REQUEST FOR CONSULTATION
ON THE SUBJECT OF THE BRIEFINGS. THOUGH RESPONDENT HAD NO POWER TO
CHANGE THE SELECTION OF A CARRIER, OR TO ALTER ANY OF THE TERMS AND
CONDITIONS OF THE NEW PLAN, IT WOULD BE OBLIGED UNDER THE ORDER TO
CONFER WITH RESPECT TO THE IMPACT OR IMPLEMENTATION THEREOF IF IT
INVOLVED A CHANGE IN EXISTING PERSONNEL POLICIES OR PRACTICES AND OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS. CF. E.G. ROCKY MOUNTAIN
ARSENAL, DENVER, COLORADO, A/SLMR NO. 933(1977.
IT IS THE LAST PROVISION ABOVE THAT CONSTITUTES THE STRONGEST
IMPEDIMENT TO FINDING AN UNFAIR LABOR PRACTICE IN THIS CASE. A CHANGE
IN PREMIUM RATES OR IN DIVIDEND PAYMENTS OF A VOLUNTARY INSURANCE
PROGRAM NOT ADMINISTERED BY A FEDERAL AGENCY OR ACTIVITY DOES NOT SEEM
TO ME TO BE THE KIND OF PERSONNEL ITEM OR THE KIND OF MATTER AFFECTING
WORKING CONDITIONS AS TO WHICH PRIOR CONSULTATION IS REQUIRED BY THE
ORDER. SURELY, A GOVERNMENT AGENCY DOES NOT HAVE TO CONFER WITH ITS
UNION EVERY TIME THAT BLUE CROSS OR AETNA RAISES ITS RATES, EVEN THOUGH
THE AGENCY MAY PERMIT, OR EVEN ENCOURAGE, PAYMENT OF PREMIUMS BY PAYROLL
DEDUCTION, AND EVEN THOUGH THE RATE INCREASE HAS AN OBVIOUS IMPACT ON
PARTICIPATING EMPLOYEES.
IT IS MOST UNFORTUNATE, OF COURSE, THAT IN THIS INSTANCE THE CHANGE
MAY BE FOUND HIGHLY OBJECTIONABLE BY UNION MEMBERS BECAUSE OF THE
POSITION TAKEN BY NGAUS AGAINST THE RIGHT OF NATIONAL GUARD TECHNICIANS
TO ORGANIZE. PERSISTENT PROTESTS-- EVEN A BOYCOTT OF THE PLAN-- WOULD
BE UNDERSTANDABLE AND PERHAPS JUSTIFIED. YET, IN MY VIEW, THE RECORD
HERE DOES NOT SUPPORT A CONCLUSION THAT RESPONDENT HAS VIOLATED SECTIONS
19(A)(1) OR (6) OF THE ORDER. THOUGH RESPONDENT'S ACTIVE SUPPORT OF
NGAUS VIS-A-VIS COMPLAINANT IS CLEARLY NOT CONSONANT WITH THE FOSTERING
OF GOOD LABOR-MANAGEMENT RELATIONS, AND IS THUS FOUND CENSURABLE, I
CANNOT FIND THAT IT HAS COMMITTED AN UNFAIR LABOR PRACTICE WITHIN THE
CONTEMPLATION OF THE ORDER.
WHETHER THE FACTS SHOWN HERE CONSTITUTE A VIOLATION OF ANY PROVISION
OF THE TECHNICIAN PERSONNEL MANUAL OR OTHER INTERNAL REGULATION IS NOT
MATERIAL IN THIS PROCEEDING. THE MOTION FOR ADMINISTRATIVE LEAVE ON
BEHALF OF THREE WITNESSES IS DENIED ON THE GROUND THAT THEIR APPEARANCE
AT THE HEARING WAS NOT ESSENTIAL.
RECOMMENDATION
IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE COMPLAINT HEREIN BE
DISMISSED.
ROBERT J. FELDMAN
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 27, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.