Navy Public Works Center, U.S. Navy (Respondent) and Louis T. Faison (Complainant) 

 



[ v01 p378 ]
01:0378(47)CA
The decision of the Authority follows:


 1 FLRA No. 47
 
 NAVY PUBLIC WORKS CENTER
 U.S.NAVY
 Respondent
 
 and
 
 LOUIS T. FAISON
 Complainant
 
                                            Assistant Secretary
                                            Case No. 22-8568(CA)
 
                            DECISION AND ORDER
 
    ON FEBRUARY 26, 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 PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE
 COMPLAINT BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    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 TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  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 TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 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, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, 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. 22-8568(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JUNE 4, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    APPEARANCES:
 
    WALTER B. BAGBY
 
    LABOR RELATIONS ADVISOR
 
    BUILDING A-67
 
    NAVAL STATION
 
    NORFOLK, VIRGINIA 23511
 
                            FOR THE RESPONDENT
 
    LOUIS T. FAISON
 
    944 TIFTON STREET
 
    NORFOLK, VIRGINIA 23513
 
                            COMPLAINANT PRO SE
 
    RONALD B. ZEDD, ESQ., OBSERVING
 
    BEFORE:  ROBERT J. FELDMAN
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 22-8568(CA)
 
                            DECISION AND ORDER
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 OF RECORD WAS HELD PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 11491
 AS AMENDED (HEREINAFTER REFERRED TO AS "ORDER") AND 29 C.F.R. PART 203.
 IN THE LIGHT OF REORGANIZATION PLAN NO.2 OF 1978 AND TITLE VII OF THE
 CIVIL SERVICE REFORM ACT OF 1978, THE DECISION AND ORDER HEREIN ARE
 RENDERED PURSUANT TO TRANSITION RULES AND REGULATIONS PROMULGATED IN
 FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PP. 5-8.
 
                           STATEMENT OF THE CASE
 
    THE COMPLAINT AS FILED ALLEGED VIOLATIONS OF SECTION 19(A)(1), (2) &
 (3) OF THE ORDER BASED UPON THE CHARGE THAT RESPONDENT'S MASTER OF
 TRANSPORTATION HAD ORDERED COMPLAINANT TO LEAVE THE PARKING LOT ON
 RESPONDENT'S PREMISES WHERE COMPLAINANT WAS CIRCULATING PETITIONS ON
 BEHALF OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) FOR AN
 ELECTION TO CHALLENGE THE RECOGNITION OF THE INCUMBENT UNION, TIDEWATER
 VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL (THE COUNCIL).  PRIOR TO
 ISSUING THE NOTICE OF HEARING, THE REGIONAL ADMINISTRATOR DISMISSED THE
 19(A)(2) & (3) PORTIONS OF THE COMPLAINT ON THE GROUND THAT THE
 COMPLAINANT HAD FAILED TO ESTABLISH A REASONABLE BASIS FOR THE ALLEGED
 VIOLATIONS OF THOSE SECTIONS.  IN HIS LETTER OF PARTIAL DISMISSAL, THE
 REGIONAL ADMINISTRATOR STATED THAT NO EVIDENCE HAD BEEN ADDUCED, NOR HAD
 THE INDEPENDENT INVESTIGATION DISCLOSED, ANY BASIS TO CONCLUDE THAT
 RESPONDENT'S ACTIONS WERE MOTIVATED IN PART OR IN THEIR ENTIRETY TO
 ASSIST, CONTROL OR DOMINATE A LABOR ORGANIZATION.  IT DOES NOT APPEAR
 THAT ANY APPEAL WAS TAKEN FROM THE PARTIAL DISMISSAL.
 
    IN VIEW OF THE ABOVE, THE SOLE ISSUE TO BE DETERMINED IS WHETHER
 RESPONDENT INTERFERED WITH, RESTRAINED, OR COERCED AN EMPLOYEE IN THE
 EXERCISE OF A RIGHT ASSURED BY THE ORDER IN VIOLATION OF SECTION
 19(A)(1).
 
                             FINDINGS OF FACT
 
    ON AUGUST 17, 1977, THE COUNCIL WAS THE RECOGNIZED EXCLUSIVE
 BARGAINING AGENT FOR THE EMPLOYEE UNIT IN QUESTION.  ON THE MORNING OF
 THAT DAY, SHORTLY BEFORE THE COMMENCEMENT OF THE DAY SHIFT, COMPLAINANT,
 WHO WAS THEN A NATIONAL REPRESENTATIVE OF NAGE AS WELL AS AN EMPLOYEE OF
 RESPONDENT, WAS CIRCULATING PETITIONS IN A PARKING LOT ON RESPONDENT'S
 PREMISES.  THE PETITIONS AUTHORIZED NAGE TO REPRESENT THE SIGNATORIES AS
 BARGAINING AGENT AND WERE DESIGNED TO CONSTITUTE A SHOWING OF INTEREST
 THAT MIGHT WARRANT AN ELECTION.
 
    COMPLAINANT WORKED THE AFTERNOON SHIFT, SO HE WAS CIRCULATING THE
 PETITIONS ON HIS OWN TIME.  MOREOVER, HE HAD BEEN EXPRESSLY AUTHORIZED
 BY RESPONDENT'S CIVILIAN PERSONNEL DIVISION TO CIRCULATE THE PETITIONS
 AT THE TIME AND PLACE IN QUESTION.  WHILE SO ENGAGED, HIS RIGHT TO BE
 THERE WAS QUESTIONED BY MR. E. J. IYOTT, THEN RESPONDENT'S MASTER OF
 TRANSPORTATION, WHO WAS ACCOMPANIED BY AN OFFICIAL OF THE COUNCIL.  MR.
 IYOTT TOLD COMPLAINANT THAT HE HAD NO RIGHT TO SOLICIT SIGNATURES ON
 SUCH PETITIONS IN THE PARKING LOT AT THAT TIME.  HE ALSO SPOKE TO ONE
 DAVIS, WHO WAS ASSISTING COMPLAINANT IN GETTING SIGNATURES.
 NEVERTHELESS, COMPLAINANT CONTINUED TO SOLICIT SIGNATURES UNTIL A FEW
 MINUTES BEFORE THE START OF THE SHIFT.  HE WAS NOT EVICTED FROM THE
 PARKING LOT, NOR WAS HE ORDERED TO LEAVE IT.
 
                            CONCLUSIONS OF LAW
 
    IT IS QUESTIONABLE WHETHER IN THE ABSENCE OF A SHOWING THAT THE
 EMPLOYEES INVOLVED WERE INACCESSIBLE TO REASONABLE ATTEMPTS BY NAGE TO
 COMMUNICATE WITH THEM OUTSIDE OF RESPONDENT'S PREMISES, THE GRANTING OF
 ACCESS TO NAGE (WHICH AT THAT POINT DID NOT ENJOY "EQUIVALENT STATUS")
 WOULD NOT BE VIOLATIVE OF SECTION 19(A)(3) OF THE ORDER.  SEE DEPARTMENT
 OF THE NAVY, NAVY COMMISSARY STORE COMPLEX, OAKLAND, A/SLMR 654(1976);
 COMMISSARY, FORT MEADE, DEPARTMENT OF THE ARMY, A/SLMR 793(1977).  IN
 HIS CAPACITY AS A REPRESENTATIVE OF NAGE, COMPLAINANT WAS THUS NOT
 EXERCISING A RIGHT ASSURED BY THE ORDER.
 
    RESPONDENT RECOGNIZES THAT AS AN EMPLOYEE, COMPLAINANT HAD A RIGHT
 UNDER THE ORDER TO ENGAGE IN SUCH UNION ACTIVITIES.  SEE CHARLESTON
 NAVAL SHIPYARD, A/SLMR 1 (1970).  COMPLAINANT'S OWN TESTIMONY, HO