[ v01 p755 ]
01:0755(85)CA
The decision of the Authority follows:
1 FLRA No. 85
NAVAL AIR REWORK FACILITY,
MARINE AIR STATION,
CHERRY POINT, NORTH CAROLINA
Respondent
and
LOCAL LODGE 2297, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Complainant
Assistant Secretary
Case No. 40-8713(CA)
DECISION AND ORDER
ON FEBRUARY 23, 1979, ADMINISTRATIVE LAW JUDGE ROBERT C. MAHONY
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 FUNCTION' 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 THIS CASE, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION ONLY TO THE EXTENT
CONSISTENT HEREWITH.
IN HIS RECOMMENDED DECISION AND ORDER, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE RESPONDENT'S SUPERVISOR REMOVED A UNIT EMPLOYEE FROM AN
INFORMAL LIST OF SHOP EMPLOYEES WHO WISHED TO BE CONSIDERED FOR THE
POSITION OF ALTERNATE RELIEF SUPERVISOR "OUT OF PIQUE BECAUSE HIS
DECISION TO DENY (THE EMPLOYEE'S) LEAVE WAS BROUGHT TO THE ATTENTION OF
THE DIVISION DIRECTOR BY THE UNION . . . " NEVERTHELESS, HE CONCLUDED
THAT THE REMOVAL WAS NOT VIOLATIVE OF SECTION 19(A)(1) AND (2) OF THE
ORDER BECAUSE THE RECORD WOULD NOT SUPPORT A FINDING THAT THE CONDUCT
INVOLVED HEREIN WAS MOTIVATED BY ANTI-UNION ANIMUS. /1/ CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES THAT A SECTION
19(A)(2) AND (1) VIOLATION IS CLEARLY ESTABLISHED BY THE ADMINISTRATIVE
LAW JUDGE'S FINDING THAT AN EMPLOYEE WAS DISCRIMINATED AGAINST AS A
RESULT OF EXERCISING HIS ASSISTANCE. /2/
THE REMEDY
ACCORDINGLY, HAVING FOUND THAT THE RESPONDENT ENGAGED IN CERTAIN
CONDUCT PROHIBITED BY SECTION 19(A)(2) AND (1) OF THE EXECUTIVE ORDER
11491, AS AMENDED, THE AUTHORITY SHALL DIRECT THAT IT CEASE AND DESIST
THEREFROM, AND TAKE CERTAIN AFFIRMATIVE ACTION, AS SET FORTH BELOW,
DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE NAVAL AIR REWORK FACILITY, MARINE AIR STATION, CHERRY POINT,
NORTH CAROLINA, SHALL:
1. CEASE AND DESIST FROM:
(A) REMOVING FROM CONSIDERATION FOR THE POSITIONS OF RELIEF
SUPERVISOR AND ALTERNATE RELIEF SUPERVISOR, ROBERT L. BAKER, OR ANY
OTHER EMPLOYEE, BECAUSE THEY HAVE EXERCISED THEIR RIGHT UNDER THE
EXECUTIVE ORDER BY SEEKING THE ASSISTANCE OF THEIR EXCLUSIVE
REPRESENTATIVE TO RESOLVE A DISPUTE OVER A CONDITION OF EMPLOYMENT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) POST AT ITS FACILITIES AT THE NAVAL AIR REWORK FACILITY, MARINE
AIR STATION, CHERRY POINT, NORTH CAROLINA, COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED
BY THE COMMANDING OFFICER, NAVAL AIR REWORK FACILITY, MARINE AIR
STATION, CHERRY POINT, NORTH CAROLINA, AND THEY SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUD'NG ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE NAVAL AIR REWORK FACILITY, MARINE AIR STATION, CHERRY
POINT, NORTH CAROLINA, SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT INSOFAR AS IT ALLEGES
VIOLATION OF SECTION 19(A)(4) OF THE ORDER BE, AND HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 17, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE OF 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 EMPLOYEES THAT:
WE WILL NOT REMOVE FROM CONSIDERATION FOR THE POSITIONS OF RELIEF
SUPERVISOR AND ALTERNATE RELIEF SUPERVISOR ROBERT L. BAKER, OR ANY OTHER
EMPLOYEE, BECAUSE THEY EXERCISED THEIR RIGHT UNDER THE EXECUTIVE ORDER
BY SEEKING THE ASSISTANCE OF THEIR EXCLUSIVE REPRESENTATIVE TO RESOLVE A
DISPUTE OVER A CONDITION OF EMPLOYMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: SUITE 540, 1365 PEACHTREE STREET, N.E., ATLANTA, GEORGIA
30309, AND WHOSE TELEPHONE NUMBER IS: (404) 881-4237.
MR. WALTER BAGBY
LABOR MANAGEMENT RELATIONS SPECIALIST
OFFICE OF CIVILIAN PERSONNEL
BUILDING A67
NAVAL STATION
NORFOLK, VIRGINIA
FOR THE RESPONDENT
MR. TERRY A. WEDDINGTON
DISTRICT 110
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
POST OFFICE BOX 716
HAVELOCK, NORTH CAROLINA 28532
FOR THE COMPLAINANT
BEFORE: ROBERT G. MAHONY
ADMINISTRATIVE LAW JUDGE
PRELIMINARY STATEMENT
THIS PROCEEDING ARISES UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491,
AS AMENDED, (HEREINAFTER REFERRED TO AS THE ORDER). PURSUANT TO THE
REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS
(HEREINAFTER REFERRED TO AS THE ASSISTANT SECRETARY), A NOTICE OF
HEARING ON COMPLAINT ISSUED ON JUNE 6, 1978 WITH REFERENCE TO ALLEGED
VIOLATIONS OF SECTIONS 19(A)(1)(2)(4) AND SECTION 1 OF THE ORDER. /3/
THE COMPLAINT, FILED ON MARCH 2, 1978 ALLEGES, IN ESSENCE, THAT THE
ORDER WAS VIOLATED BECAUSE A UNION MEMBER WAS TOLD BY MANAGEMENT THAT
HIS NAME WAS BEING REMOVED FROM CONSIDERATION AS ALTERNATE RELIEF
SUPERVISOR IN HIS WORKSHOP BECAUSE HE FILED A GRIEVANCE AND "DID NOT GO
ALONG WITH MANAGEMENT'S POSITION." /4/
A HEARING WAS HELD ON AUGUST 17, 1978 AT THE MARINE CORPS AIR
STATION, CHERRY POINT, NORTH CAROLINA AT WHICH TIME THE PARTIES WERE
GIVEN AN OPPORTUNITY TO EXAMINE WITNESSES, INTRODUCE DOCUMENTARY
ARGUMENT AND PRESENT ORAL ARGUMENT. THE PARTIES FILED TIMELY BRIEFS BY
OCTOBER 6, 1978.
STATEMENT OF THE CASE
ON OCTOBER 25, 1977, ROBERT L BAKER AN EMPLOYEE IN SHOP 94206,
SUBMITTED A LEAVE SLIP TO HIS ACTING SUPERVISOR, MR. HORACE TYLER
REQUESTING FOUR HOURS ANNUAL LEAVE FOR "PERSONAL BUSINESS." MR. BOBBY
NELSON, WHO WAS THE PERMANENT SUPERVISOR OF SHOP 94206, BUT ON THIS DATE
WAS ACTING BRANCH CHIEF, SAW THE LEAVE REQUEST ON A DESK AND DISAPPROVED
IT. /5/
UPON LEARNING OF THE DISAPPROVAL, MR. BAKER HAD HIS UNION
REPRESENTATIVE, MR. VICTOR WIKHAUSER BRING IT TO THE ATTENTION OF MR.
JOHN SAVAGE, THE DIVISION DIRECTOR. MR. SAVAGE DIRECTED THAT THE LEAVE
REQUEST BE RESUBMITTED TO MR. TYLER WHO APPROVED IT ON OCTOBER 27, 1977.
ON OCTOBER 31, 1977, MR. NELSON RETURNED TO HIS PERMANENT POSITION AS
SHOP 94206 SUPERVISOR AND ON THIS DATE ADVISED MR. BAKER THAT HE WOULD
NOT BE CONSIDERED FOR THE POSITION OF ALTERNATE RELIEF SUPERVISOR FOR
THE REMAINDER OF THE QUARTER ENDING DECEMBER 31, 1977.
IT WAS THE REMOVAL OF MR. BAKER FROM CONSIDERATION AS ALTERNATIVE
RELIEF SUPERVISOR BY MR. NELSON THAT PRECIPITATED THE FILING OF THE
CHARGE AND COMPLAINT HEREIN.
THE UNION CONTENDS THAT THE REMOVAL OF BAKER FROM CONSIDERATION OF
ALTERNATE RELIEF SUPERVISOR WAS A RETALIATORY ACT BY MANAGEMENT BECAUSE
BAKER GRIEVED THE DENIAL OF LEAVE BY MR. NELSON. THE UNION FURTHER
CONTENDS THAT THE REMOVAL OF BAKER CAUSED HIM TO LOSE EXPERIENCE AND
ALSO CAUSED UNION MEMBERSHIP TO DECLINE.
MANAGEMENT TAKES SEVERAL POSITIONS IN DEFENSE OF BAKER'S REMOVAL:
1) THERE WAS NO GRIEVANCE BECAUSE THE DISCUSSION BETWEEN MR.
WIKHAUSER AND MR. SAVAGE WAS AN INFORMAL WAY OF SOLVING A PROBLEM.
2) MANAGEMENT WAS NOT REQUIRED UNDER ANY CIRCUMSTANCES TO HAVE AN
ALTERNATE RELIEF SUPERVISOR.
3) BAKER WAS REMOVED FROM CONSIDERATION BECAUSE MANAGEMENT FELT THAT
HIS PERSONAL USE OF LEAVE WAS EXCESSIVE AND HE WOULD NOT PROPERLY
SUPERVISE OTHER EMPLOYEES' LEAVE REQUESTS IF HE WERE TO BE IN THE
POSITION OF ALTERNATE RELIEF SUPERVISOR.
ISSUE
DID THE REMOVAL ON OCTOBER 31, 1977 BY MR. BOBBY NELSON OF MR.
ROBERT L. BAKER FROM FURTHER CONSIDERATION AS ALTERNATE RELIEF
SUPERVISOR FOR THE REMAINDER OF THE QUARTER ENDING DECEMBER 31, 1977
CONSTITUTE A VIOLATION OF SECTION 19(A)(1)(2) AND (4) AND SECTION 1 OF
THE ORDER.
DISCUSSION
MR. NELSON TESTIFIED THAT THE POSITIONS OF RELIEF SUPERVISOR AND
ALTERNATE RELIEF SUPERVISOR WERE STARTED BY HIM WHEN HE BECAME
SUPERVISOR OF THE RADAR SHOP. THEY WERE NOT POSITIONS THAT WERE
REQUIRED THROUGH ANY CONTRACTUAL AGREEMENT WITH THE UNION BUT WERE AN
ESTABLISHED PRACTICE IN THAT SHOP.
THE EVIDENCE ESTABLISHED THAT MR. NELSON MAINTAINED AN INFORMAL LIST
OF SHOP EMPLOYEES WHO WISHED TO BE CONSIDERED FOR THESE POSITIONS AND
THEY WOULD GENERALLY BE FILLED ON A ROTATING BASIS.
BEFORE OCTOBER 1977, BAKER SERVED ONE WEEK AS ALTERNATE RELIEF
SUPERVISOR. SINCE JANUARY 1, 1978 HE HAS BEEN RESTORED TO THE LIST AND
APPOINTED SUBSTITUTE SUPERVISOR.
NELSON DENIES THAT THERE WAS ANY CAUSAL CONNECTION BETWEEN BAKER'S
REMOVAL FROM THE LIST AND THE EPISODE INVOLVING BAKER'S LEAVE. RATHER,
NELSON MAINTAINS THAT BAKER WAS REMOVED BECAUSE HE USED SUBSTANTIAL
AMOUNTS OF LEAVE AND THEREFORE NELSON DIDN'T BELIEVE BAKER WOULD SUPPORT
MANAGEMENT'S "POSITION" ON LEAVE REQUESTS DURING A PERIOD WHEN THE
GRANTING OF LEAVE HAD TO BE TIGHTLY CONTROLLED.
THIS IS A CONTENTION THAT I PERCEIVE TO BE MADE OF "WHOLE CLOTH." IN
MY VIEW, MR. NELSON'S TESTIMONY EXPLAINING THE REASONS FOR HIS REMOVAL
OF MR. BAKER FROM CONSIDERATION AS ALTERNATE RELIEF SUPERVISOR IS NOT
CREDIBLE. BASED UPON MY REVIEW OF ALL THE TESTIMONY AND THE DEMEANOR OF
THE WITNESSES, PARTICULARITY, MR. NELSON, I FIND THAT HE REMOVED BAKER
OUT OF PIQUE BECAUSE HIS DECISION TO DENY BAKER LEAVE WAS BROUGHT TO THE
ATTENTION OF THE DIVISION DIRECTOR BY THE UNION AND ULTIMATELY REVERSED.
HAD MANAGEMENT BEEN CONCERNED ABOUT BAKER'S USE OF ANNUAL LEAVE OVER
AN EXTENDED PERIOD, IT COULD HAVE DENIED ANY OR ALL OF THE LEAVE
REQUESTS, AS IS ITS PREROGATIVE. IT CANNOT GRANT THE LEAVE AND THEN USE
IT AS A REASON TO PENALIZE AN EMPLOYEE. MANAGEMENT, IN THIS CASE, IS
GRASPING AT STRAWS IN AN EFFORT TO JUSTIFY NELSON'S ACTION OF REMOVAL.
THIS INTERPRETATION OF MR. NELSON'S ACTION IS STRENGTHENED BY BAKER'S
RESTORATION TO THE LIST BEGINNING IN JANUARY 1978. THERE IS NO
INDICATION THAT HE WAS BETTER ABLE TO SUPPORT MANAGEMENT'S POSITION
REGARDING OTHER EMPLOYEES' LEAVE AS OF JANUARY 1, 1978 THEN HE WOULD
HAVE BEEN ON NOVEMBER 1, 1977, 60 DAYS EARLIER.
FURTHER, THE SEQUENCE OF EVENTS OVER A SHORT PERIOD OF TIME (6 DAYS)
BETWEEN BAKER'S LEAVE REQUEST, AND HIS REMOVAL BY MR. NELSON FROM THE
LIST ON THE FIRST DAY NELSON RETURNED AS SHOP SUPERVISOR, CONVINCES ME
THAT THE EPISODE INVOLVING THE LEAVE WAS CAUSALLY RELATED TO BAKER'S
REMOVAL FROM THE LIST.
THE MORE DIFFICULT QUESTION, GIVEN THAT I FIND NELSON'S REMOVAL
ACTION AGAINST BAKER TO BE MOTIVATED BY THE REVERSAL OF NELSON'S DENIAL
OF BAKER'S LEAVE, IS WHETHER THIS REMOVAL FROM CONSIDERATION AS
ALTERNATE RELIEF SUPERVISOR FOR A 60 DAY PERIOD CONSTITUTES AN UNFAIR
LABOR PRACTICES AS ALLEGED.
IN ORDER TO SUSTAIN A VIOLATION OF SECTION 19(A)(1) AND (2)
ANTI-UNION ANIMUS MUST BE PROVEN. THIS RECORD WILL NOT SUPPORT SUCH A
FINDING. WHEN THE UNION BROUGHT THE LEAVE ISSUE TO THE ATTENTION OF
MANAGEMENT, IT WAS PROMPTLY RESOLVED (WHETHER OR NOT THE GRIEVANCE
PROCEDURE WAS BEING UTILIZED). I VIEW MR. NELSON'S ACTION TO BE
MOTIVATED BY HIS PERSONAL IRRITATION WITH BAKER INDIVIDUALLY, NOT
BECAUSE THE LEAVE ISSUE MAY HAVE BEEN HANDLED THROUGH THE GRIEVANCE
PROCEDURE, OR BECAUSE BAKER BELONGED TO A UNION. I DO NOT ASCRIBE ANY
ANTI-UNION BIAS TO HIS ACT OF REMOVING BAKER FROM CONSIDERATION AS AN
ALTERNATE RELIEF SUPERVISOR ESPECIALLY SINCE BAKER HAS BEEN RESTORED TO
THE LIST. VETERANS ADMINISTRATION REGIONAL HOSPITAL, HONOLULU, HAWAII
AND SERVICE EMPLOYEES INTERNATIONAL UNION, A/SLMR 976, (FEBRUARY 1,
1978).
VIOLATION OF SECTION 19(A)(4)
REGARDING THE ALLEGED VIOLATION OF SECTION 19(A)(4), I CONCUR WITH
THE ACTIVITY'S POSITION THAT THERE IS NO EVIDENCE THAT MR. BAKER WAS
DISCIPLINED OR DISCRIMINATED AGAINST BECAUSE HE FILED A COMPLAINT OR
GAVE TESTIMONY UNDER THIS ORDER. LIKEWISE, THERE IS NO EVIDENCE THAT
WOULD SUPPORT A FINDING THAT SECTION 1 OF THE ORDER WAS VIOLATED, IN
THAT MR. BAKER WAS IN ANY WAY INHIBITED OR PREVENTED FROM ENGAGING IN
UNION ACTIVITIES.
FOR THE FOREGOING REASON, I CONCLUDE THAT THE UNION HAS FAILED TO
PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE ACTIVITY HAS VIOLATED
SECTION 19(A)(1)(2) AND (4) AND SECTION 1 OF THE ORDER AS ALLEGED.
RECOMMENDATION
IT IS RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
ROBERT G. MAHONY
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 23, 1979
WASHINGTON, D.C.
/1/ THE ADMINISTRATIVE LAW JUDGE FOUND THAT "(I)N ORDER TO SUSTAIN A
VIOLATION OF SECTION 19(A)(1) AND (2) ANTI-UNION ANIMUS MUST BE PROVEN."
IT IS NOTED HOWEVER THAT UNDER ASSISTANT SECRETARY PRECEDENT ANIMUS NEED
NOT BE PRESENT TO SUPPORT A FINDING OF AN INDEPENDENT SECTION 19(A)(1)
VIOLATION. DEPARTMENT OF DEFENSE, ARKANSAS NATIONAL GUARD, 1 A/SLMR
274, 275, A/SLMR NO. 53 (1971).
/2/ 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.
/3/ SECTION 1 OF THE ORDER STATES:
SECTION 1. POLICY. (A) EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE
FEDERAL GOVERNMENT HAS THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN
FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE
EXERCISE OF THIS RIGHT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
ORDER, THE RIGHT TO ASSIST A LABOR ORGANIZATION EXTENDS TO PARTICIPATION
IN THE MANAGEMENT OF THE ORGANIZATION AND ACTING FOR THE ORGANIZATION IN
THE CAPACITY OF AN ORGANIZATION REPRESENTATIVE, INCLUDING PRESENTATION
OF ITS VIEWS TO OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR
OTHER APPROPRIATE AUTHORITY. THE HEAD OF EACH AGENCY SHALL TAKE THE
ACTION REQUIRED TO ASSURE THAT EMPLOYEES IN THE AGENCY ARE APPRISED OF
THEIR RIGHTS UNDER THIS SECTION, AND THAT NO INTERFERENCE, RESTRAINT,
COERCION, OR DISCRIMINATION IS PRACTICED WITHIN HIS AGENCY TO ENCOURAGE
OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION.
(B) PARAGRAPH (A) OF THIS SECTION DOES NOT AUTHORIZE PARTICIPATION IN
THE MANAGEMENT OF A LABOR ORGANIZATION OR ACTING AS A REPRESENTATIVE OF
SUCH AN ORGANIZATION BY A SUPERVISOR, EXCEPT AS PROVIDED IN SECTION 24
OF THIS ORDER, OR BY AN EMPLOYEE WHEN THE PARTICIPATION OR ACTIVITY
WOULD RESULT IN A CONFLICT OR APPARENT CONFLICT OF INTEREST OR OTHERWISE
BE INCOMPATIBLE WITH LAW OR WITH THE OFFICIAL DUTIES OF THE EMPLOYEE.
SECTION 19 OF THE ORDER STATES, IN PERTINENT PART:
UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED BY THIS ORDER;
(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT;
(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
HE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER.
/4/ THE TRANSCRIPT REFERS TO THE POSITIONS AS "RELEASE" SUPERVISOR.
IT SHOULD BE "RELIEF" SUPERVISOR. IT IS ALSO REFERRED TO AS ALTERNATE
SUBSTITUTE SUPERVISOR.
/5/ THE UNION CONTRACT PROVIDED THAT THE FIRST LINE SUPERVISOR WOULD
MAKE THE INITIAL DETERMINATION ON GRANTING OR DENYING A LEAVE REQUEST.
ON THIS DATE, MR. TYLER WAS OCCUPYING MR. NELSON'S DESK DUE TO THEIR
RESPECTIVE "ACTING" POSITIONS, AND WAS THE FIRST LINE SUPERVISOR.
NELSON TESTIFIED THAT HE JUST HAPPENED TO BE GOING THROUGH THE SHOP AND
SAW THE LEAVE REQUEST ON WHAT WAS NORMALLY HIS DESK AND HE JUST
DISAPPROVED IT.