National Army and Air Technicians Association, Local 371 (Respondent) and New Jersey Department of Defense (Charging Party)
[ v07 p154 ]
07:0154(22)CO
The decision of the Authority follows:
7 FLRA No. 22
NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371
Respondent
and
NEW JERSEY DEPARTMENT OF DEFENSE
Charging Party
Case No. 2-CO-16
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND
ORDER, AND THE CHARGING PARTY FILED A REPLY TO THE RESPONDENT'S
EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. /1/ UPON CONSIDERATION OF
THE JUDGE'S DECISION AND ORDER, AND THE ENTIRE RECORD, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
/2/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING JOSEPH BONAR, OR ANY
OTHER UNIT EMPLOYEE, BY THREATENING TO IMPLICATE THE EMPLOYEE IN AN
UNFAIR LABOR PRACTICE CHARGE UNLESS THE EMPLOYEE RETRACTED HIS DECISION
TO TERMINATE DUES DEDUCTIONS FROM HIS PAY AND REMAINED A MEMBER OF THE
UNION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING UNIT 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 STATUTE:
(A) POST AT ALL OFFICES OF THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE PRESIDENT OF LOCAL 371 AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO MEMBERS
ARE CUSTOMARILY POSTED. THE PRESIDENT SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE SENIOR TECHNICIAN
PERSONNEL OFFICER OF THE NEW JERSEY DEPARTMENT OF DEFENSE FOR POSTING IN
CONSPICUOUS PLACES, WHERE UNIT EMPLOYEES ARE LOCATED, WHERE THEY SHALL
BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION II, ROOM 241, 26
FEDERAL PLAZA, NEW YORK, NEW YORK 10278, IN WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH
THIS ORDER.
ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLCIIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND ALL EMPLOYEES OF THE
NEW JERSEY DEPARTMENT OF DEFENSE THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE JOSEPH BOGNAR, OR ANY
OTHER UNIT EMPLOYEE, BY THREATENING TO IMPLICATE HIM IN AN UNFAIR LABOR
PRACTICE PROCEEDING UNLESS SAID EMPLOYEE RETRACTED HIS DECISION TO
TERMINATE DUES DEDUCTIONS FROM HIS PAY AND REMAIN A MEMBER OF THE
NATIONAL ARMY AND AIR TECHNICIANS ASSOCIATION, LOCAL 371.
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.
NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371
DATED: . . . BY: . . . PRESIDENT
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 QUESTION CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW
YORK 19278.
-------------------- ALJ$ DECISION FOLLOWS --------------------
LEONARD SPEAR, ESQUIRE
FOR THE RESPONDENT
MAJOR WILLIAM S. GREENBURG, ESQUIRE
FOR THE CHARGING PARTY
RONI SCHNITZER, ESQUIRE AND
ROBERT J. WARNER, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON MAY 29, 1980, BY THE
REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, NEW
YORK, NEW YORK, AGAINST THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371 ("RESPONDENT" OR "UNION").
THIS PROCEEDING WAS INITIATED BY THE FILING OF A CHARGE DATED JANUARY
15, 1980 BY THE NEW JERSEY DEPARTMENT OF DEFENSE. RESPONDENT MOVES TO
DISMISS THE INSTANT ACTION ON THE GROUND THAT THE AGGRIEVED PARTY IN
THIS CASE IS ONE OF THE CHARGING PARTY'S EMPLOYEES RATHER THAN THE
CHARGING PARTY ITSELF. THIS MOTION MUST BE DENIED IN VIEW OF SECTION
2423.3 OF THE AUTHORITY'S REGULATIONS WHICH PROVIDES THAT A CHARGE MAY
BE FILED BY "ANY PERSON." THIS IS SIMILAR TO THE RULE IN THE PRIVATE
SECTOR WHERE IT HAS BEEN HELD THAT THE CHARGING PARTY NEED NOT BE AN
"AGGRIEVED" PERSON. BROPHY ENGRAVING COMPANY, 94 NLRB 719(1951).
THE ONLY ISSUE PRESENTED FOR DECISION IS WHETHER THE UNION THREATENED
TO IMPLICATE ITS MEMBER, JOSEPH J. BOGNAR, JR., IN AN UNFAIR LABOR
PRACTICE CHARGE AGAINST THE NEW JERSEY DEPARTMENT OF DEFENSE UNLESS SAID
EMPLOYEE RETRACTED HIS DECISION TO TERMINATE DUES DEDUCTIONS FROM HIS
PAY AND REMAINED A MEMBER OF THE UNION. THE GENERAL COUNSEL ALLEGES
THAT, BY DOING SO, THE UNION INTERFERED WITH, RESTRAINED, AND COERCED AN
EMPLOYEE IN THE EXERCISE OF HIS RIGHTS UNDER THE STATUTE IN VIOLATION OF
5 U.S.C. 7116(B)(1).
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT NEW YORK
CITY, NEW YORK ON SEPTEMBER 23, 1980. ALL PARTIES WERE REPRESENTED BY
COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE, AND EXAMINE AND CROSS-EXAMINE WITNESSES. THE PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE
THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED
ORDER:
FINDINGS AND CONCLUSIONS
AT ALL TIMES MATERIAL HEREIN, THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371, THE RESPONDENT HEREIN, HAS BEEN A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 7103(A)(4) OF THE STATUTE AND
HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF
EMPLOYEES OF THE NEW JERSEY DEPARTMENT OF DEFENSE. THE LATTER IS AND
HAS BEEN AN AGENCY WITHIN THE MEANING OF SECTION 7103(A)(3) OF THE
STATUTE.
ON SEPTEMBER 20, 1979 JOSEPH J. BOGNAR, A FIRST SERGEANT AT THE
CHARGING PARTY'S HACKETTSTOWN, NEW JERSEY, ARMORY, EXECUTED A FORM 1188
FOR THE PURPOSE OF TERMINATING THE WITHDRAWAL OF UNION DUES FROM HIS
PAY. IN ACCORDANCE WITH THE CUSTOMARY PRACTICE, THE UNION WAS PROMPTLY
NOTIFIED OF BOGNAR'S ACTION. WITHIN A FEW DAYS, BOGNAR RECEIVED A
TELEPHONE CALL FROM ROBERT SPONBURG, AN OFFICER OF THE UNION WHO HAD
PREVIOUSLY BEEN A FRIEND OF BOGNAR. SPONBURG AND OTHER UNION OFFICERS
SUSPECTED THAT THE NEW JERSEY DEPARTMENT OF DEFENSE WAS ATTEMPTING TO
"UNION BUST" BY TELLING THE EMPLOYEES THAT THEY WOULD NOT BE PROMOTED
UNLESS THEY LEFT THE UNION. IN HIS CONVERSATION WITH BOGNAR, SPONBURG
ASKED HIM WHY HE WAS LEAVING THE UNION AND SPECIFICALLY ASKED IF HIS
COMMAND ADMINISTRATIVE ASSISTANT (CAA), CAPT. PIEKLIK, HAD PUT PRESSURE
ON BOGNAR TO CANCEL HIS MEMBERSHIP. BOGNAR'S RESPONSE PERMITTED
SPONBURG TO HARBOR HIS PREVIOUS SUSPICION THAT PIEKLIK HAD, IN FACT, PUT
PRESSURE ON BOGNAR TO RESIGN FROM THE UNION. /3/
SPONBURG IMMEDIATELY CALLED RICHARD W. SPENCER, THE BUSINESS
REPRESENTATIVE FOR THE UNION, TO INFORM HIM OF HIS CONVERSATION WITH
BOGNAR. ALSO, DURING THE SAME TIME PERIOD, SPONBURG CALLED EDWARD
SNOOK, A UNION STEWARD. SNOOK TOLD SPONBURG THAT HE WAS NOT AWARE OF
ANY PROBLEMS BETWEEN MANAGEMENT AND THE EMPLOYEE BUT THAT HE WOULD LOOK
INTO THE MATTER. SNOOK THEN CALLED BOGNAR AND ASKED IF THE LATTER WAS
IN FACT BEING PRESSURED BY THE AGENCY. BOGNAR TOLD HIM THAT HE HAD NOT
HAD ANY PRESSURE OR PROBLEMS WITH MANAGEMENT, AND THAT HIS REASONS FOR
LEAVING THE UNION WERE PERSONAL IN NATURE. THEN SNOOK RELAYED THIS
INFORMATION TO SPONBURG; THE LATTER WAS UPSET BY SNOOK'S REPORT BECAUSE
BOGNAR WAS APPARENTLY "BACKING OFF" FROM HIS PREVIOUS POSITION.
SPONBURG THEN CALLED BOGNAR AGAIN AND TOLD HIM THAT HE HAD A RIGHT TO
BELONG TO THE UNION AND THAT BOGNAR SHOULD NOT LET MANAGEMENT PUT
PRESSURE ON HIM TO RESIGN. BOGNAR THEN INDICATED THAT HE DID NOT WANT
TO BE "BOTHERED" BY THE UNION IN THE FUTURE CONCERNING THIS MATTER. HE
STATED THAT HE DID NOT INTEND TO REJOIN THE UNION.
SHORTLY AFTER RECEIVING THE ABOVE CALL FROM SPONBURG, SPENCER CALLED
PIEKLIK AND CONFRONTED HIM WITH BOGNAR'S PURPORTED ACCUSATION. /4/
SPENCER TOLD PIEKLIK THAT BOGNAR HAD "CHARGED" PIEKLIK WITH FORCING
BOGNAR TO RESIGN FROM THE UNION AND THAT THE UNION INTENDED TO BRING AN
UNFAIR LABOR PRACTICE PROCEEDING AGAINST PIEKLIK. PIEKLIK DENIED ANY
WRONGDOING, AND AGREED WITH SPENCER THAT A MEETING BETWEEN SPENCER,
BOGNAR, AND PIEKLIK WOULD BE APPROPRIATE. THE MEETING WAS SCHEDULED FOR
OCTOBER 31, 1979, AND BOGNAR WAS ASKED TO ATTEND.
AT ABOUT THE SAME TIME, BOGNAR RECEIVED A TELEPHONE CALL FROM AN
UNIDENTIFIED PERSON WHO YELLED AT HIM AND ACCUSED BOGNAR OF NOT BEING
"MAN ENOUGH TO STAND UP FOR YOUR RIGHTS," AND THAT NO ONE COULD FORCE
BOGNAR TO GET OUT OF THE UNION. WHEN BOGNAR ASKED WHO WAS CALLING, THE
SPEAKER SAID "YOU KNOW WHO THIS IS." AT THAT POINT, BOGNAR HUNG UP. A
FEW MINUTES LATER, SPENCER CALLED BOGNAR AND IDENTIFIED HIMSELF BY NAME.
BOGNAR REALIZED THAT THIS WAS THE SAME PERSON WHO HAD CALLED HIM A FEW
MINUTES BEFORE. SPENCER REITERATED THE UNION'S SUSPICIONS REGARDING
ALLEGED "UNION-BUSTING" ACTIVITIES BY MANAGEMENT AND TOLD BOGNAR THAT
MANAGEMENT COULD NOT FORCE HIM TO RESIGN FROM THE UNION. BOGNAR AGAIN
DENIED HAVING ACCUSED PIEKLIK OF THREATENING HIM AND DENIED THAT THERE
WAS ANY PRESSURE ON HIM.
SUBSEQUENTLY BOGNAR MET WITH PIEKLIK AND DENIED THAT HE HAD ACCUSED
PIEKLIK OF PUTTING PRESSURE ON HIM. SINCE PIEKLIK WAS STILL SUSPICIOUS
OF BOGNAR, THE LATTER MADE A TELEPHONE CALL IN PIEKLIK'S PRESENCE TO A
SENIOR MANAGEMENT OFFICIAL AND ASKED IF HE HAD TO "TAKE VERBAL ABUSE" OR
TALK TO ANYONE FROM THE UNION. BOGNAR WAS TOLD THAT MANAGEMENT WOULD
ATTEMPT TO RESOLVE THE PROBLEM.
ON OCTOBER 31, 1979 SPENCER FLEW UP TO THE DESIGNATED MEETING PLACE
IN HIS PRIVATE PLANE. HE WAS MET BY ROBERT MAGNO, PRESIDENT OF THE
LOCAL UNION, WHO ACCOMPANIED SPENCER TO THE PREARRANGED MEETING WITH
PIEKLIK. WHEN THEY ARRIVED, THEY WERE INFORMED BY PIEKLIK THAT BOGNAR
WOULD NOT BE ATTENDING THE MEETING. AFTER WAITING A FEW MINUTES,
SPENCER AND MAGNO WALKED OVER TO AN EMPLOYEE WORK AREA AND BEGAN TO
DISCUSS THIS MATTER WITH THE EMPLOYEES.
SPENCER WAS ANGRY THAT BOGNAR HAD FAILED TO ATTEND THE MEETING. AT
THAT POINT, EDWARD SNOOK, A UNION STEWARD, HAD A TELEPHONE CONVERSATION
WITH BOGNAR, WHO WAS HOME ON LEAVE. SNOOK TOLD HIM THAT SPENCER AND THE
EMPLOYEES AT THE SHOP WERE UPSET BECAUSE BOGNAR HAD FAILED TO ATTEND THE
MEETING AND BECAUSE HE WAS TRYING TO RESIGN FROM THE UNION. SNOOK ALSO
STATED THAT THEY WERE ANGRY BECAUSE BOGNAR WAS NOT THERE TO ANSWER
QUESTIONS REGARDING THE "CHARGES" THAT HE HAD PREVIOUSLY MADE REGARDING
PIEKLIK. SENSING THAT THE UNION INTENDED TO PURSUE THIS MATTER, BOGNAR
ASKED SNOOK IF THE UNION WOULD DROP THE ENTIRE MATTER IF BOGNAR REJOINED
THE UNION. SNOOK STATED THAT HE DID NOT KNOW, BUT THAT HE WOULD ASK
SPENCER, WHO WAS STANDING NEARBY.
AT THIS POINT SPENCER CAME TO THE TELEPHONE AND ANGRILY TOLD BOGNAR
THAT HE WAS NOT "MAN ENOUGH TO COME DOWN AND ANSWER THE CHARGES." HE LED
BOGNAR TO BELIEVE THAT "CHARGES" WERE BEING BROUGHT AGAINST BOTH BOGNAR
AND PIEKLIK. SPENCER KNEW THAT THE ONLY "CHARGE" THAT HE COULD EVER
HAVE HOPED TO BRING WOULD HAVE BEEN AN UNFAIR LABOR PRACTICE CHARGE
AGAINST THE AGENCY FOR FORCING BOGNAR OUT OF THE UNION; HOWEVER, IT
WOULD HAVE BEEN NECESSARY TO GET BOGNAR TO TESTIFY ON BEHALF OF THE
UNION. SINCE SPENCER KNEW THAT BOGNAR HAD PERSISTED IN DENYING THAT
PIEKLIK HAD EVER THREATENED HIM IN THIS REGARD, IT WAS OBVIOUS TO
SPENCER THAT HE COULD NOT PROVE THIS "CASE" AGAINST PIEKLIK. HOWEVER,
SPENCER CONTINUED TO THREATEN TO ENTANGLE BOGNAR IN THE UNFAIR LABOR
PRACTICE PROCEEDING EVEN THOUGH HE KNEW THAT BOGNAR DESPERATELY DESIRED
TO EXTRICATE HIMSELF FROM HIS DILEMMA. SPENCER THEN TOOK ADVANTAGE OF
BOGNAR'S FEAR AND IGNORANCE OF THE LAW, AND TOLD BOGNAR THAT HE WOULD
DROP THE "CHARGES" AGAINST HIM AND PIEKLIK IF BOGNAR WOULD FILL OUT
ANOTHER FORM 1188 AND GET BACK INTO THE UNION. IT IS THE LATTER
STATEMENT THAT IS ALLEGED BY THE GENERAL COUNSEL TO CONSTITUTE A
VIOLATION OF SECTION 7116(B)(1) OF THE STATUTE. I AGREE. /5/
SECTION 7116(B)(1) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE
FOR A LABOR ORGANIZATION TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THE STATUTE.
SECTION 7102 PROVIDES THAT EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM,
JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH
ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL. IN THE
INSTANT CASE, BOGNAR MADE IT CLEAR TO THE UNION THAT HE DID NOT WANT TO
BE A MEMBER OF THE UNION. SPENCER VIOLATED BOGNAR'S RIGHT TO REFRAIN
FROM JOINING THE UNION BY THREATENING TO BRING VAGUE "CHARGES" AGAINST
HIM UNLESS HE REJOINED. UNDER THESE CIRCUMSTANCES SPENCER MADE IT
IMPOSSIBLE FOR BOGNAR TO REFRAIN FROM JOINING THE UNION "FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL." MOREOVER, SPENCER'S THREAT TO CALL
BOGNAR AS A WITNESS IN AN UNFAIR LABOR PRACTICE PROCEEDING AGAINST
PIEKLIK, WHEN HE KNEW HE COULD NEVER BRING SUCH A CHARGE UNLESS BOGNAR
CHANGED HIS TESTIMONY TO SUPPORT THE UNION'S POSITION, CONSTITUTED UNDUE
COERCION FOR THE PURPOSE OF FORCING BOGNAR TO RETAIN HIS MEMBERSHIP IN
THE UNION.
IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE AUTHORITY ADOPT THE
FOLLOWING:
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT THE NATIONAL ARMY AND AIR TECHNICIANS ASSOCIATION, LOCAL
371, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING JOSEPH BOGNAR, OR ANY
OTHER UNIT EMPLOYEE, BY THREATENING TO IMPLICATE THE EMPLOYEE IN AN
UNFAIR LABOR PRACTICE CHARGE UNLESS THE EMPLOYEE RETRACTED HIS DECISION
TO TERMINATE DUES DEDUCTIONS FROM HIS PAY AND REMAINED A MEMBER OF THE
UNION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING UNIT 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 STATUTE:
(A) POST AT ALL OFFICES OF THE NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX"
ON FORMS TO BE FURNISHED BY THE REGIONAL DIRECTOR OF THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED
BY THE PRESIDENT OF LOCAL 371 AND SHALL BE POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO MEMBERS ARE
CUSTOMARILY POSTED. THE PRESIDENT SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(B) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE SENIOR TECHNICIAN
PERSONNEL OFFICER OF THE NEW JERSEY DEPARTMENT OF DEFENSE FOR POSTING IN
CONSPICUOUS PLACES, WHERE UNIT EMPLOYEES ARE LOCATED, WHERE THEY SHALL
BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION II, ROOM 241, 26 FEDERAL
PLAZA, NEW YORK, NEW YORK 10278, IN WRITING, WITHIN 30 DAYS FROM THE
DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 18, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES
AT THE NEW JERSEY DEPARTMENT OF DEFENSE THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE JOSEPH BOGNAR, OR ANY
OTHER UNIT EMPLOYEE, BY THREATENING TO IMPLICATE HIM IN AN UNFAIR LABOR
PRACTICE PROCEEDING UNLESS SAID EMPLOYEE RETRACTED HIS DECISION TO
TERMINATE DUES DEDUCTIONS FROM HIS PAY AND REMAINED A MEMBER OF THE
NATIONAL ARMY AND AIR TECHNICIANS ASSOCIATION, LOCAL 371.
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.
NATIONAL ARMY AND AIR TECHNICIANS
ASSOCIATION, LOCAL 371
DATED: . . . BY: . . . PRESIDENT
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 QUESTION CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS
AUTHORITY, WHOSE ADDRESS IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW
YORK 10278.
--------------- FOOTNOTES: ---------------
/1/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES SUCH RESOLUTION
WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD CAREFULLY, AND
FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY FINDINGS.
/2/ THE RESPONDENT MOVED TO DISMISS THE COMPLAINT ON THE GROUND THAT
THE AGGRIEVED PARTY IS ONE OF THE CHARGING PARTY'S EMPLOYEES RATHER THAN
THE CHARGING PARTY ITSELF. THE JUDGE DENIED THE MOTION. IN AGREEMENT
WITH THE JUDGE, THE AUTHORITY NOTES THAT UNDER SECTION 2423.3 OF THE
AUTHORITY'S RULES AND REGULATIONS, A CHARGE MAY BE FILED BY "ANY
PERSON", AS DEFINED IN SECTION 7103(A)(1) OF THE STATUTE, AND THAT THE
PHRASE "ANY PERSON" INCLUDES AGENCIES AND ACTIVITIES SUCH AS THE
CHARGING PARTY HEREIN; I.E., THE "PERSON" FILING A CHARGE NEED NOT BE
THE ALLEGED AGGRIEVED PARTY. CF. NATIONAL TREASURY EMPLOYEES UNION AND
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 53, 6 FLRA NO. 37(1981)
(WHEREIN THE AUTHORITY ORDERED A UNION STEWARD TO BE REINSTATED TO HIS
UNION POSITION PURSUANT TO AN UNFAIR LABOR PRACTICE FINDING IN A CASE IN
WHICH THE AGENCY WAS THE COMPLAINANT.) THE AUTHORITY THUS FINDS IT
UNNECESSARY TO ADOPT THE JUDGE'S REFERENCE TO PRIVATE SECTOR PRECEDENT
IN THIS REGARD AT PAGE 1 OF HIS DECISION.
/3/ ALTHOUGH BOGNAR DOES NOT RECALL LEADING SPONBURG TO THIS
CONCLUSION, I INFER FROM THE CIRCUMSTANCES THAT BOGNAR FOUND IT
CONVENIENT TO INSINUATE THAT HIS WITHDRAWAL WAS MOTIVATED, AT LEAST IN
PART, BY HIS SUPERVISOR. I MAKE NO FINDING, HOWEVER, AS TO THE
CULPABILITY OF PIEKLIK.
/4/ IT IS NOT CLEAR WHETHER SPENCER WAS AWARE AT THIS POINT THAT
BOGNAR WAS NOW DENYING THAT MANAGEMENT HAD APPLIED ANY PRESSURE ON HIM
TO RESIGN.
/5/ SPENCER STATES THAT THIS WAS THE FIRST CONVERSATION THAT HE HAD
EVER HAD WITH BOGNAR AND DENIES TELLING BOGNAR THAT HE WOULD DROP THE
CHARGES IF THE LATTER REJOINED THE UNION. I HAVE CHOSEN TO DISCREDIT
SPENCER'S TESTIMONY, AND TO CREDIT THE TESTIMONY OF BOGNAR. THE
LATTERS' TESTIMONY WAS LARGELY CORROBORATED BY THE TESTIMONY OF SNOOK.