[ v24 p653 ]
24:0653(66)CA
The decision of the Authority follows:
24 FLRA No. 66
DEFENSE PROPERTY DISPOSAL REGION
OGDEN, UTAH AND DEFENSE PROPERTY
DISPOSAL OFFICE (DPDO), CAMP
PENDLETON, OCEANSIDE, CALIFORNIA
Respondent
and
LEIGHTON THOMAS LEAVITT, An Individual
Charging Party
Case No. 8-CA-50227
DECISION AND ORDER
I. Statement of the Case
This case is before the Authority based on exceptions to the attached
Administrative Law Judge's Decision filed by the Defense Property
Disposal Region -- Ogden (DPDR) and the Defense Property Disposal Office
-- Pendleton (DPDO) (Respondent). The General Counsel filed an
opposition to the exceptions. The complaint, as amended, alleged that
Respondent violated section 7116(a)(1) of the Statute by engaging in
surveillance and/or monitoring of a bargaining unit employee because he
engaged in representational activities.
II. Background
The facts, more fully set out in the Judge's Decision, indicate that
the Charging Party, Leighton Thomas Leavitt, was employed by Respondent
at the Pendleton DPDO until April 1985 as a preceiver, Sorter,
Classifier. The Pendleton DPDO receives various materials from units at
Pendleton and other locations which it stores and subsequently arranges
for disposition. Some of the materials coming to the facility are
hazardous substances. From late December 1984 until April 1985 Leavitt
served as Shop Steward for the Ogden Regional Council of AFGE Locals
(the Council), which represents various employees at the Pendleton DPDO.
During this period he filed several unfair labor practice charges
against Respondent and several "Notice(s) of Alleged Unsafe or
Unhealthful Working Conditions" with his foreman.
The circumstances giving rise to this action occurred on March 11,
1985, when Leavitt noticed unit employees loading allegedly hazardous
materials onto military vehicles, which in Leavitt's view violated the
collective bargaining agreement between the Council and Respondent.
Leavitt went to a roadway adjacent to the storage site during his
afternoon break and took photographs of the activity in the site and
returned to work. Leavitt's actions were observed by another employee
who informed Leavitt's supervisor, Mac Bojorquez. Bojorquez immediately
telephoned Base Security to inquire whether Leavitt's actions
constituted a breach of security regulations since Leavitt was observed
near a high security area where taking photographs was restricted.
The officer assigned to security duty, Marine Sergeant Jones,
informed Bororquez that he did not think that photographs were permitted
on the site, but he would have to check the regulations to make sure.
Meanwhile Jones told Staff Sergeant Phillips of his conversation with
Bojorquez. Phillips decided to go to the DPDO to investigate the
matter. Upon arriving at Leavitt's work site, Phillips questioned
Leavitt about the incident. Leavitt denied taking pictures or having a
camera. Leavitt did admit to having pretended to take pictures of the
disposal site. When Phillips asked Leavitt why he was taking pictures,
Phillips testified that Leavitt "said something about being a member of
the union." Phillips told Leavitt that he had nothing to do with this
"field" (presumably referring to labor relations) but Leavitt could
explain to the Military Police. Phillips then phoned the Base Military
Police and informed them that they should handle the matter. However,
because of the unavailability of a Military Police Investigator,
Phillips was requested by the Military Police to "observe" Leavitt and
ask Leavitt not to leave the base.
Phillips decided to wait for the Military Police Investigator and was
talking to Leavitt at his desk when Commander of the Guard Jones arrived
with his driver, another guard. The guards remained within 25 feet of
Leavitt when he was at his desk. Leavitt continued to work, sometimes
walking around but closely followed by Jones or Phillips. Jones asked
Leavitt whether he had taken pictures, and Leavitt indicated that he had
only pretended to take pictures. Leavitt gave no further explanation of
his actions.
When Leavitt's workday ended at 3:30 p.m., he asked the guards if he
could leave to pick up a "carpooler," and received no response. He then
went to his car, which was blocked in its space by the security guard's
vehicle. Jones denied knowing that the security vehicle was blocking
Leavitt's car. Shortly after 4:00 p.m., Leavitt went to his car, Jones
moved the security vehicle, and Leavitt left.
After 4:15 p.m., Bojorquez received a call from Colonel Kirkham who
related that research had disclosed that photography was prohibited in
numerous areas in Camp Pendleton, but no such restriction applied to the
DPDO. Bojorquez then told Phillips that the DPDO would take care of the
situation and Phillips telephoned the Military Police to let them know
the state of affairs after which the security guards left the DPDO.
Before the Judge, Jones testified that he was perplexed as to why
anyone would want to pretend to take pictures and was concerned about
possible espionage or sabotage. Leavitt testified that he took the
photographs to record alleged violations of Occupational Safety and
Health Administration (OSHA) requirements and to show that the agency
had not fulfilled its commitments to OSHA regarding the hazardous waste.
Leavitt also asserted that he acted consistent with Article 15,
Section 8 of the parties' collective bargaining agreement, which
provides:
In the course of performing normally assigned work, employees
acting in the capacity of Union representatives will be alert to
observe unsafe practices, equipment and conditions . . . . If an
unsafe or unhealthy condition is observed, the representative
should report to the cognizant immediate supervisor. If the
safety question is not settled by the representative and the
immediate supervisor, or the DPDO . . . , the representative will
refer the matter promptly to . . . the Region Safety and Health
Manager who will act on behalf of the Employer(s).
III. Administrative Law Judge's Decision
The Judge found that Leavitt was engaged in activity protected by the
Statute when he took photographs of the disposal site. The Judge
rejected Respondent's contention that it lacked knowledge that Leavitt
was engaged in union activity when he photographed the disposal site and
found that Leavitt's actions on March 11, 1985, reasonably should have
alerted foreman Bojorquez that Leavitt was engaged in union activity.
The Judge concluded that under the circumstances, Leavitt's being kept
under surveillance by security guards for almost two hours constituted
interference, restraint and coercion of Leavitt for having engaged in
conduct protected by the Statute. The Judge found that the agency's
actions, by their very nature, would tend to intimidate and inhibit a
shop steward from engaging in activity protected by the Statute.
IV. Positions of the Parties
The Respondent excepts to the Administrative Law Judge's decision
that "there does not appear to be any dispute that Leavitt was engaged
in activity protected by the Statute when he took photographs of the
disposal site." Respondent argues that Leavitt's conduct was in
violation of the parties' agreement and, therefore, was not protected by
the Statute. Respondent also objects to the Judge's decision that
circumstances should have alerted Respondent's foreman Bojorquez that
Leavitt was engaged in union activity; the Respondent argues that
employees of the DPDO are permitted to take photographs only with the
express consent of the Defense Property Disposal Officer and Leavitt
failed to notify the appropriate authority that he was going to take
photographs on behalf of the union. Finally, Respondent excepts to the
Administrative Law Judge's findings that control over the DPDO and
security guards' activities remained with foreman Bojorquez at all times
and that the security guards' belief that regulations prohibited taking
pictures at the DPDO and their actions were not reasonable.
The General Counsel filed a brief in response to the Respondnet's
exceptions in which it agreed with the Judge's findings and recommended
Order.
V. Analysis
The question here is whether the Respondent's conduct in observing
Leavitt for a two-hour period tended to interfere with, restrain, or
coerce Leavitt in the exercise of his rights under the Statute.
We find first, and in agreement with the Judge, that Leavitt's
conduct in photographing what he viewed as a possible contract violation
was protected by the Statute. The Authority has previously found that
protected activity under section 7102 of the Statute encompasses an
employee's right to conduct an investigation on his own time to support
a grievance or in contemplation of filing a grievance. Department of
Defense Dependents Schools, Mediterranean Region, Naples American High
School (Naples, Italy), 21 FLRA No. 103 (1986); Department of Justice,
Bureau of Prisons, Federal Correctional Institution, Butner, North
Carolina, 18 FLRA No. 100 (1985). Leavitt's action is protected by the
Statute because the photographs were taken in contemplation of filing
grievances relating to the Respondent's noncompliance with safety
requirements and its alleged violation of the collective bargaining
agreement. /1/ However, in the circumstances of this case, we find that
the Respondent's subsequent conduct in observing Leavitt was not a
violation of the Statute. Rather, the Respondent's action was based on
security considerations.
The record indicates that Leavitt's actions took place within the
confines of a military installation and were subject to certain
restrictions, including restrictions on taking photographs, imposed by
the military host activity on the tenant activity employing him. The
restrictions were imposed to secure the installation and to prevent
sabotage or espionage. The record further shows that Leavitt was
suspected of taking photographs in a prohibited area. Even though
Bojorquez did not witness the incident, when he received the report of
photographing, he called Base Security because of a possible security
breach. The guards who subsequently observed Leavitt were doing so
pending a determination on the security breach issue. Under these
circumstances, the Respondent's conduct was not unreasonable and did not
interfere with Leavitt's rights under the Statute or in any other way
violate section 7116(a)(1) of the Statute.
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. We have considered the
Judge's decision, the positions of the parties and the entire record,
and adopt the Judge's findings and conclusions only to the extent
consistent with the above. We conclude that the Respondent did not
violate section 7116(a)(1) of the Statute by "monitoring" Leavitt's
activity after he was observed taking photographs of the facility and by
questioning Leavitt about a suspected breach of security. Accordingly,
the complaint shall be dismissed in its entirety. /2/
ORDER
The complaint in Case No. 8-CA-50227 is hereby dismissed.
Issued, Washington, D.C., December 19, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CA-50227
DEFENSE PROPERTY DISPOSAL REGION, OGDEN,
UTAH AND DEFENSE PROPERTY DISPOSAL OFFICE
(DPDO), CAMP PENDLETON, OCEANSIDE, CALIFORNIA
Respondent
and
LEIGHTON THOMAS LEAVITT
Charging Party
Thomas E. Fehr, Esq.
For the Respondent
Jonathan S. Levine, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et seq.
Upon an unfair labor practice charge filed by Leighton Thomas
Leavitt, an individual, against the above captioned Respondent, /3/ the
General Counsel of the Authority, by the Regional Director for Region
VIII, issued a Complaint and Notice of Hearing alleging Respondent
violated section 7116(a)(1) of the Statute by engaging in surveillance
and/or monitoring a bargaining unit employee because of his having
engaged in representational activities.
A hearing on the Complaint was conducted in Vista, California at
which Respondent and the General Counsel were represented by counsel /4/
and afforded full opportunity to adduce evidence, call, examine and
cross-examine witnesses and argue orally. Briefs were filed by counsel
for the General Counsel and counsel for Respondent and have been
carefully considered.
Upon the entire record in this case, my observation of the witnesses
and their demeanor and from my evaluation of the evidence, I make the
following:
Findings of Fact
At all times material herein various of Respondent's employees
located at the Camp Pendleton facility of the Defense Property Disposal
Office (herein DPDO) have been represented for collective bargaining
purposes by the Ogden Regional Council of AFGE Locals (herein called the
Council). The Charging Party, Leighton Thomas Leavitt, was employed by
Respondent at the Pendleton DPDO for approximately four years until
being transferred to another facility in April 1985. While at Pendleton
Leavitt was employed as a Receiver, Sorter, Classifier. The Pendleton
DPDO receives various materials from units at Pendleton and other
locations which it stores and subsequently arranges for disposition.
Some of the materials coming to the facility are hazardous substances.
From late December 1984 until sometime in April 1985 Leavitt served
as Shop Steward for the Council at the Pendleton DPDO. During this
period Leavitt filed five unfair labor practice charges against
Respondent and five "Notice(s) of Alleged Unsafe or Unhealthful Working
Conditions" with his foreman. Even before becoming Shop Steward Leavitt
was concerned with health and safety in the work place. Thus, a
complaint from Leavitt to the Occupational Safety and Health
Administration (OSHA) gave rise to an inspection of the Pendleton DPDO
by OSHA in September 1984. /5/ Part of OSHA'S findings reported on
December 28, 1984 indicated: that the Pendleton DPDO had changed its
procedures for handling hazardous substances in that hazardous materials
would no longer be handled by DPDO employees; a contractor was to
remove all such materials within a week, and; thereafter hazardous
materials would not be sent to the Pendleton DPDO.
Subsequently Leavitt observed that Respondent did not fulfill its
commitments made to OSHA. Thus, hazardous material continued to be
stored at the DPDO. On March 11, 1985 Leavitt noticed unit employees
loading the hazardous material onto military vehicles. In his opinion
management's conduct in this regard was violative of the collective
bargaining agreement between the Council and Respondent which was in
effect at all times material herein and required compliance with OSHA
standards. /6/ Accordingly, Leavitt went to a roadway adjacent to the
storage site around 2:00 p.m. during his afternoon break and took some
photographs of the activity in the site and returned to work. Leavitt's
actions had been observed by another employee, Randall Beck, who
informed Leavitt's supervisor, Mac Bojorquez, Property Management
Foreman, that he saw Leavitt about 30 to 40 feet away from the storage
site apparently taking pictures of the men in the storage site loading
the hazardous material onto a truck. /7/
Foreman Bojorquez immediately telephoned Base Security and spoke to
U.S. Marine Corps Staff Sergeant David Jones who was the Commander of
the Guard that day. Bojorquez informed Jones that Leavitt was observed
taking pictures and wished to know if this constituted a breach of
security regulations since Bojorquez was aware that purchasers of DPDO
equipment who came to the site were required to have written
authorization from the Base Commanding Officer before taking pictures.
Jones informed Bojorquez that he didn't think anyone was permitted to
take photographs without written authorization. /8/ Bojorquez then
talked to Leavitt and told him that he had been observed taking pictures
of the site and had called Security and inquired as to regulations
concerning photographing. Bojorquez informed Leavitt that he was not to
be taking pictures much less being near the hazardous area because his
assignment was working in the warehouse.
Foreman Bojorquez then called Defense Property Disposal Region (DPDR)
in Ogden and conveyed what had thus far transpired concerning Leavitt to
U.S. Air Force Colonel Thomas Kirkham, commander of DPDR, and Security
Officer Chuck Lambert. After Bojorquez told Lambert of having been told
by the Security Guard office that regulations against taking pictures
existed, Lambert indicated he would call someone else on the base about
this matter. Thereafter, according to Bojorquez, he remained by his
telephone in the event Colonel Kirkham called and, although he was aware
when security guards arrived, he did not know of their conduct at the
DPDO, infra.
Meanwhile Commander of the Guard Jones told Guard Officer Staff
Sergeant William Phillips of his conversation with Bojorquez. Phillips
decided to go to the DPDO to investigate the matter and arrived at the
warehouse shortly after 2:15 p.m. on that same day. /9/ Phillips
testified when he arrived at the DPDO Bojorquez told him that he saw
Leavitt taking pictures of the disposal site. From Bojorquez's
description of where Leavitt was standing when he took the pictures
Phillips concluded there would have been a clear view of the Pendleton
airfield and this concerned Phillips. /10/
Guard Officer Phillips then went to Leavitt who was at his work desk
in the receiving area. /11/ In response to Phillips' questions, Leavitt
denied taking pictures or having a camera. However, Leavitt did admit
to having pretended to take pictures of the disposal site. Phillips
left Leavitt and went to Bojorquez's work site and told him of Leavitt's
denial. Bojorquez insisted that Leavitt had a camera and Phillips
responded that he did not have the right to make a search. Phillips
went back to Leavitt's work area where Leavitt was standing by a
doorway. Phillips related to Leavitt that Bojorquez said he had a
camera and was taking pictures and Phillips asked Leavitt why he was
taking pictures. Leavitt then said something about being a member of
the Union and began talking about having cancer. /12/ Phillips
indicated he had nothing to do with this "field" but would let Leavitt
explain to the military police. Phillips then telephoned the Base
Military Police and informed them they should handle the matter.
However, the Military Police investigator was not available at the time.
Accordingly, Military Police requested that Phillips "observe" Leavitt
and ask Leavitt not to leave the base.
Guard Officer Phillips decided to wait for the Military Police
investigator and was talking to Leavitt at his desk when Commander of
the Guard Jones arrived around 2:40 p.m. with his driver, another Guard.
Phillips told Leavitt he should wait for the Military Police and
related the stare of affairs to Jones. The three guards remained in
Leavitt's work area frequently very close by but always within 25 feet
from Leavitt when he was at his desk. /13/ Leavitt continued to work,
sometimes walking around but always closely followed by either Phillips
or Jones. /14/ After coming on the scene Jones questioned Leavitt at
his desk as to whether he had taken pictures and Leavitt indicated he
had only pretended to take pictures. Jones acknowledged that when
Leavitt left his desk to go to other areas, he followed Leavitt "trying
to get some answers." He further testified he was perplexed as to why
anyone would want to pretend to take pictures and was concerned about
possible espionage or sabotage. Leavitt gave no further explanation of
his actions but told Jones about various aspects of his work. In any
event, it is apparent that Leavitt was kept under open surveillance at
all times the security guard was at the DPDO.
Leavitt's work day ended at 3:30 p.m. Around that time Leavitt told
the security guards he had a "carpooler" to pick up and asked if he
could leave but received no response. He then went to the loading dock
where he observed that his automobile was blocked in its parking space
by the security guard's vehicle. /15/ Shortly after 4:00 p.m. Leavitt
went to his car, Jones moved the security vehicle and Leavitt left.
After 4:15 p.m. Foreman Bojorquez received a telephone call from
Colonel Kirkham who related that research into the matter disclosed that
although photography was prohibited in numerous areas at Camp Pendleton,
there was no such restriction applicable to the DPDO. Upon receiving
this information Bojorquez told Sergeant Phillips that the DPDO would
take care of the situation and Phillips telephoned the Military Police
to let them know the state of affairs after which the security guards
left the DPDO.
Discussion and Conclusions
Counsel for the General Counsel essentially contends that by having
Shop Steward Leavitt placed in custody and/or monitoring his activities
for having engaged in activities protected by the Statute, Respondent
coerced and restrained Leavitt in the performance of his
representational duties in violation of section 7116(a)(1) of the
Statute.
Counsel for Respondent contends no violation of the Statute has been
established since: Respondent had no knowledge that Leavitt was engaged
in union activity; no agency relationship exists between Respondent and
the security guards and; even if the conduct of the security guards was
attributable to Respondent, such conduct was reasonable under the
circumstances and was therefore privileged.
There does not appear to be any dispute that Leavitt was engaged in
activity protected by the Statute when he took photographs of the
disposal site and I so find. Thus, Leavitt was the Shop Steward;
Respondent had made certain commitments to OSHA regarding the storage
and disposal of hazardous waste; Article 15 of the collective
bargaining agreement addressed the matter of safe and healthful working
conditions and compliance with OSHA standards; and Leavitt's
photographing the disposal site was related to the enforcement of
Article 15 of the agreement.
I reject Respondent's contention that it lacked knowledge that
Leavitt was engaging in union activity when he photographed the disposal
site and therefore no violation of the Statute can stand. Respondent
cannot deny knowledge of the terms of its collective bargaining
agreement, specifically the section relating to OSHA requirements, and
of the OSHA inspection, supra. Moreover, Respondent was also well aware
that Leavitt was the Shop Steward and was particularly concerned with
health and safety in the work place, matters of normal union interest.
/16/ Thus, Leavitt's actions on March 11, 1985 with regard to the
hazardous material, in these circumstances, reasonably should have
alerted foremen Bojorquez that Leavitt was engaged in union activity.
Indeed, if Bojorquez was in doubt of whether Leavitt was photographing
the removal of hazardous waste at the DPDO for personal reasons or for
union related reasons, he could have asked Leavitt, but he did not.
Accordingly, in these circumstances knowledge of union activity must be
inferred.
I also conclude that in the circumstances herein Shop Steward
Leavitt's being kept under open surveillance by security guards for
almost two hours constituted interference, restraint and coercion of
Leavitt for having engaged in conduct protected by the Statute.
Employee Beck, who observed the photographing by Leavitt, informed
foreman Bojorquez that Leavitt was taking a picture of the disposal
site. Bojorquez was aware of Leavitt's concern as Shop Steward over
health and safety matters and that Leavitt was the person who complained
to OSHA over hazardous materials at the site. Although Beck testified
that from Leavitt's position when taking pictures he could not have been
photographing the airfield, he did not convey this fact to Bojorquez.
However, neither did Bojorquez inquire of Beck as to what Leavitt could
observe from his position. True, Bojorquez did not ask the security
guards to investigate the matter and was given information from Sergeant
Jones that subsequently appeared to be incorrect as to regulations
prohibiting photography on the base. But when security guard Sergeant
Phillips investigated the matter Bojorquez, perhaps inadvertently,
conveyed that it was he who observed the photographing and misled
Phillips into believing that from where Leavitt was seen with a camera
he could have been photographing the airfield. Phillips acknowledged
that this triggered his concern and prompted his continued inquiry into
the matter. Thus, it was Bojorquez's failure to make a thorough inquiry
of Beck as to the complete circumstances of Leavitt's actions and
misleading Phillips which set into motion a two hour episode which might
have been disposed of in two minutes if Sergeant Phillips was satisfied
that photographing the airfield was not involved in the incident.
I reject Respondent's contentions that the security guards' conduct
cannot be attributed to Respondent. While foreman Bojorquez did not ask
the security guards to investigate the matter, he provided them with the
misleading information which prompted the investigation and was aware of
their continued presence at the DPDO and with due diligence could have
observed the nature and extent of their activities. Further, it is
clear from the record that control over the DPDO and the security
guards' activities remained with Bojorquez at all times. Thus, when
Bojorquez, after being told by his Commander that Respondent concluded
there were no regulations against Leavitt's activities, informed
Sergeant Phillips that DPDO would handle the matter, the security guards
ceased their inquiry and departed. In my view the facts herein
demonstrate that during this incident Respondent retained sufficient
control over the activities of the security guards to have created an
agency relationship which cannot now be denied.
Nor do I find that the security guards' belief that regulations
prohibited taking pictures at the DPDO and their actions with regard to
Leavitt were reasonable under the circumstances thereby precluding a
finding of violation of the Statute. Leavitt's denial of having taken
pictures may well have exacerbated the situation, but this is
speculative. However, as stated above, Respondent ultimately concluded
Leavitt engaged in no prohibited conduct and accordingly Leavitt should
not have been questioned by the security guards or have had his actions
monitored from the very beginning. Indeed, it was Respondent's
misleading information to Sergeant Phillips and failure to know which
gave rise to a course of events which never should have occurred. In
such circumstances, the security guards conduct may not be regarded as
reasonable and thereby serve to excuse actions which by their very
nature would tend to intimidate and inhibit a shop steward from engaging
in activity protected by the Statute. In view of the entire foregoing I
conclude Respondent, by the conduct described herein, violated section
7116(a)(1) of the Statute and recommend the Authority issue the
following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Defense Property Disposal Region, Ogden, Utah
and Defense Property Disposal Office (DPDO), Camp Pendleton, Oceanside,
California shall:
1. Cease and desist from:
(a). Monitoring the actions of and keeping under surveillance
Leighton Thomas Leavitt, or any other employee, for engaging in
union representational activities.
(b). In any like or related manner interfering with,
restraining, or coercing 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 Federal Service Labor-Management Relations
Statute:
(a). Post at its Camp Pendleton, California DPDO copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they 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 employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by any other material.
(b). Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal
Labor Relations Authority 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
/s/ SALVATORE J. ARRIGO
Administrative Law Judge
Dated: April 3, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Respondent's contention that Leavitt's activity violated the
parties' collective bargaining agreement should be resolved through the
parties' negotiated grievance and arbitration procedures. Department of
Health and Human Services, Social Security Administration and Social
Security Administration Field Operations, New York Region, 23 FLRA No.
62 (1986).
(2) In view of this decision, we find it unnecessary to address the
Agency's remaining exception.
(3) The Respondent appears as amended at the hearing.
(4) The Charging Party was present throughout the hearing but made no
appearance in a representative capacity.
(5) Respondent was aware of Leavitt's complaint to OSHA.
(6) Article 15, Section 1A of that agreement provides:
"The Employer(s) will, to the extent of its authority, provide
and maintain safe and healthful working conditions for all
employees. Safe and healthful working and conditions will be
determined in accordance with the definitions and standards
contained in Section 19 of the Occupational Safety and Health Act
(OSHA), in Executive Order 12196, and in implementing regulations
and directives."
(7) The storage site is in close proximity to Camp Pendleton
airfield. Beck testified that from Leavitt's position while
photographing, it was not possible for him to be taking a picture of the
airfield. This fact however was not conveyed to Bojorquez.
(8) Jones testified he didn't have time to specifically check the
applicable regulations.
(9) When he arrive, Bojorquez was talking on the phone with Security
Office Lambert. Bojorquez turned the phone over to Phillips who also
talked with Lambert. The record does not disclose the content of this
conversation.
(10) Leavitt testified that while there were no signs or regulations
against taking pictures around the DPDO or at Camp Pendleton in general,
he understood some locations around the airfield were "posted".
(11) The following account of what transpired is essentially a
composite of credited portions of the testimony of Leavitt, Phillips and
Jones. I do not credit the entire testimony of any of these witnesses,
each of whom was at times vague, implausible, self contradictory,
inclined to exaggerate and give testimony in a self serving manner. In
addition, I was not particularly impressed with the demeanor of any of
these witnesses.
(12) Leavitt testified he had bladder cancer. In any event,
Leavitt's testimony does not reveal that he attempted to explain that
his actions were in any way related to his Union membership or functions
as Shop Steward.
(13) Another employee was also working in Leavitt's work area.
(14) On one occasion Leavitt went to a bathroom and was followed to
the door by Jones who remained outside.
(15) Jones denied knowing that the security vehicle was blocking
Leavitt's automobile.
(16) I do not find the fact that Leavitt was also concerned about his
personal health in these circumstances to be significant.
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT monitor the actions of and keep under surveillance
Leighton Thomas Leavitt, or any other employee, for engaging in union
representational activities.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
. . . (Agency or Activity)
Dated: . . . By: . . . (Signature)
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 of the Federal Labor Relations Authority, Region VIII,
whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles,
California 90071 and whose telephone number is: (818) 894-3805 or FTS
8-798-3805.