New York-New Jersey Council, Local 3369, American Federation of Government Employees, AFL-CIO (Respondent) and Social Security Administration, Office of Program Operations, Baltimore, Maryland (Complainant)
[ v04 p126 ]
04:0126(22)CO
The decision of the Authority follows:
4 FLRA No. 22
NEW YORK-NEW JERSEY COUNSEL
LOCAL 3369, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Respondent
and
SOCIAL SECURITY ADMINISTRATION
OFFICE OF PROGRAM OPERATIONS
BALTIMORE, MARYLAND
Complainant
Assistant Secretary
Case No. 30-8907(CO)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING, ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, 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 RULES AND REGULATIONS
(5 CFR 2400.2). 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 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, INCLUDING THE EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
EXCEPT AS MODIFIED HEREIN.
THE INSTANT DISPUTE AROSE ON THE AFTERNOON OF MAY 25, 1978, WHEN, AS
A RESULT OF A UNION MEETING HELD THAT MORNING, APPROXIMATELY SIXTY
EMPLOYEES OF COMPLAINANT'S FLATBUSH DISTRICT OFFICE, LED BY TWO UNION
REPRESENTATIVES, LEFT THEIR WORK STATIONS TO GATHER BEFORE THE OFFICE
DIRECTOR IN ORDER TO PROTEST AND ORALLY GRIEVE THE POOR PHYSICAL
CONDITIONS AND MAINTENANCE OF THE OFFICE. THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE INCIDENT WAS AN ILLEGAL WORK STOPPAGE IN VIOLATION OF
SECTION 19(B)(4) OF EXECUTIVE ORDER 11491, AS AMENDED.
IN ADOPTING THE RECOMMENDED DECISION AND ORDER OF THE ADMINISTRATIVE
LAW JUDGE, THE AUTHORITY NOTES PARTICULARLY HIS CONCLUSION ON THE BASIS
OF THE TOTAL CIRCUMSTANCES, THAT THE "CONFRONTATION WITH COMPLAINANT BY
THE EMPLOYEES, AND THEIR UNION LEADERS" WAS A WORK STOPPAGE WITHIN THE
CONTEMPLATION OF SECTION 19(B)(4), RATHER THAN THE PRESENTING OF A
GRIEVANCE. IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE NOTED THAT THE
CONTRACT SET FORTH SPECIFIC STEPS TO FOLLOW WHEN INITIATING AND
PRESENTING A GRIEVANCE, NONE OF SUCH PROCEDURES ENCOMPASSING THE ACTIONS
RESORTED TO BY THE EMPLOYEES. MOREOVER, THE AUTHORITY CONCURS WITH THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT HE COULD NOT AGREE THAT A
CESSATION OF WORK BY SIXTY EMPLOYEES TO ORALLY GRIEVE IS AN ACCEPTABLE
METHOD OF PRESENTING A GRIEVANCE, OR THAT SUCH WAS CONTEMPLATED BY THE
AGREEMENT, SO AS TO BE EXCLUDED FROM THE DEFINITION OF WORK STOPPAGE
UNDER THE ORDER.
IN REGARD TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED ORDER, THE
AUTHORITY AGREES THAT POSTING OF THE NOTICE SHOULD TAKE PLACE AT ALL
LOCATIONS WHERE THE RESPONDENT REPRESENTS EMPLOYEES OF THE COMPLAINANT,
BUT CONCLUDES THAT, IN THE TOTAL CIRCUMSTANCES OF THIS CASE, IT IS
UNNECESSARY FOR THE RESPONDENT TO MAIL A COPY OF THE NOTICE TO EACH OF
ITS MEMBERS HOME ADDRESS. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE 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 NEW YORK-NEW JERSEY COUNCIL, LOCAL 3369, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO SHALL:
1. CEASE AND DESIST FROM:
(A) ENCOURAGING OR ENGAGING IN A WORK STOPPAGE AGAINST THE SOCIAL
SECURITY ADMINISTRATION,
FLATBUSH, NEW YORK DISTRICT OFFICE, OR ANY OTHER AGENCY OF THE
GOVERNMENT OF THE UNITED
STATES, OR ASSISTING OR PARTICIPATING IN SUCH ACTIVITY.
(B) CONDONING ANY SUCH ACTIVITY BY THE FAILURE TO TAKE AFFIRMATIVE
ACTION TO PREVENT OR
STOP IT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT ALL OTHER
PLACES WHERE NOTICES TO MEMBERS AND TO EMPLOYEES OF THE SOCIAL
SECURITY ADMINISTRATION,
FLATBUSH, NEW YORK DISTRICT OFFICE ARE CUSTOMARILY POSTED, INCLUDING
SPACES ON BULLETIN BOARDS
MADE AVAILABLE TO NEW YORK-NEW JERSEY COUNCIL, LOCAL 3369, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO BY THE SOCIAL SECURITY ADMINISTRATION, FLATBUSH,
NEW YORK DISTRICT OFFICE,
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 PRESIDENT
OF NEW YORK-NEW JERSEY COUNCIL, LOCAL 3369, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, AND SHALL BE POSTED FOR A PERIOD OF 60 CONSECUTIVE DAYS.
REASONABLE STEPS SHALL BE
TAKEN BY THE NEW YORK-NEW JERSEY COUNCIL, LOCAL 3369, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, TO ENSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) FURNISH SUFFICIENT COPIES OF SAID NOTICE WITHIN 14 DAYS OF THE
DATE OF THIS DECISION TO
THE SOCIAL SECURITY ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT
OFFICE FOR POSTING IN
CONSPICUOUS PLACES WHERE IT CUSTOMARILY POSTS INFORMATION TO ITS
EMPLOYEES. THE SOCIAL
SECURITY ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT OFFICE SHALL
MAINTAIN SUCH NOTICES FOR A
PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(C) 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.
ISSUED, WASHINGTON, D.C., AUGUST 29, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL MEMBERS AND 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 ALL EMPLOYEES OF THE SOCIAL SECURITY
ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT OFFICE THAT:
WE WILL NOT ENCOURAGE OR ENGAGE IN A WORK STOPPAGE AGAINST THE SOCIAL
SECURITY ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT OFFICE, OR ANY
OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, OR ASSIST OR
PARTICIPATE IN SUCH ACTIVITY.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED CONDUCT AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT, IN THE EVENT IT OCCURS.
NEW YORK-NEW JERSEY COUNCIL
LOCAL 3369, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
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 MEMBERS OR OTHER 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, NEW YORK REGION, WHOSE ADDRESS IS 26 FEDERAL PLAZA, ROOM 241,
NEW YORK, NEW YORK 10278, AND WHOSE TELEPHONE NUMBER IS (212) 264-4934.
-------------------- ALJ$ Decision Follows -----------------
PETER BROIDA, ESQUIRE
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
FOR THE RESPONDENT
WILSON E. SCHUERHOLZ, ESQUIRE
ROOM 2218, WEST HIGH RUN
6401 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
FOR THE COMPLAINANT
JAMES E. PETROCCI, ESQUIRE
REGIONAL ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
1515 BROADWAY
NEW YORK, NEW YORK
FOR THE REGIONAL DIRECTOR, NEW YORK REGION, FEDERAL LABOR
RELATIONS AUTHORITY (PARTY IN INTEREST)
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREIN
CALLED THE ORDER). A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JULY
31, 1979 AT NEW YORK, NEW YORK PURSUANT TO A NOTICE OF HEARING ON
COMPLAINT ISSUED ON JUNE 21, 1979 BY THE REGIONAL DIRECTOR FOR THE
FEDERAL LABOR RELATIONS AUTHORITY.
A COMPLAINT WAS FILED ON NOVEMBER 20, 1978 BY SOCIAL SECURITY
ADMINISTRATION, OFFICE OF PROGRAM OPERATIONS, BALTIMORE, MARYLAND
(HEREIN CALLED THE COMPLAINANT) AGAINST NEW YORK-NEW JERSEY COUNCIL,
LOCAL 3369, AFGE, AFL-CIO (HEREIN CALLED THE RESPONDENT). IT ALLEGED
THAT ON MAY 25, 1978 THE RESPONDENT, THROUGH ITS REPRESENTATIVE GEORGE
KEARON AND ELIOT TOW, LED 60 EMPLOYEES IN A WORK STOPPAGE TO PROTEST
WORKING CONDITIONS; THAT THE EMPLOYEE LEFT THEIR WORK STATIONS WITHOUT
AUTHORIZATION-- ALL IN VIOLATION OF 19(B)(4) OF THE ORDER.
RESPONDENT FILED A RESPONSE ON NOVEMBER 27, 1978 WHEREIN IT AVERRED
THAT THE UNION REPRESENTATIVES DID NOT LEAD A WORK STOPPAGE, BUT WERE
MERELY ATTEMPTING TO BRING TO MANAGEMENT'S ATTENTION THE EXTREMELY BAD
PHYSICAL CONDITIONS OF THE PREMISES.
ALL PARTIES /2/ WERE REPRESENTED AT THE HEARING. THEY WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL
AS CROSS-EXAMINE WITNESSES. THEREAFTER ALL PARTIES FILED BRIEFS /3/
WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATIONS OF THE
WITNESSES, AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND
EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIME MATERIAL HEREIN RESPONDENT HAS BEEN, AND STILL IS,
THE COLLECTIVE BARGAINING REPRESENTATIVE /4/ OF THOSE EMPLOYEES WHO ARE
EMPLOYED AT THE SOCIAL SECURITY ADMINISTRATION, FLATBUSH, NEW YORK
DISTRICT OFFICE AND WHO ARE CLASSIFIED AS CLAIMS REPRESENTATIVES, DESK
TYPISTS SERVICE REPRESENTATIVES AND RECEPTIONISTS. BOTH COMPLAINANT AND
RESPONDENT ARE PARTIES TO A WRITTEN COLLECTIVE BARGAINING AGREEMENT
WHICH IS EFFECTIVE, BY ITS TERMS FROM JANUARY 15, 1976 FOR A PERIOD OF
TWO YEARS AND WAS AUTOMATICALLY RENEWED AT ITS EXPIRATION. THE SAID
AGREEMENT CONTAINED A GRIEVANCE PROCEDURE AND A PROVISION FOR ULTIMATE
ARBITRATION UNDER ARTICLE XXXIV THEREOF.
2. AT ALL TIME SINCE FEBRUARY 1975, WHEN THIS DISTRICT OFFICE
OCCUPIED ITS PRESENT SITE, THE PHYSICAL CONDITIONS OF THE PREMISES HAVE
BEEN VERY BAD AS WELL AS SOMEWHAT HAZARDOUS. THE DISTRICT MANAGER,
SIMON DUBLIRER, WROTE MORE THAN 40 LETTERS TO OFFICIALS OF GSA AND
SOCIAL SECURITY ADMINISTRATION COMPLAINING OF VARIOUS DEFECTS AND THE
LACK OF SAFETY CAUSED THEREBY. SOME OF THE UNSANITARY AND UNHEALTHFUL
CONDITIONS INCLUDED: LACK OF HEAT, COCKROACH INFESTATION, CIRCUIT
BREAKER SPARKING, LADIES' ROOMS FLOODING WITH WATER AND URINE, GARBAGE
PILE-UPS, COLLAPSE OF TILE IN LADIES ROOM, LACK OF PROPER VENTILATION,
AND ROOF LEAKAGE WHICH SPOILED SUPPLIES.
3. ON MAY 24, 1978, GEORGE KEARON, ON-SITE REPRESENTATIVE OF
RESPONDENT UNION, ASKED DISTRICT MANAGER DUBLIRER IF THE UNION COULD
HOLD A MEETING THE FOLLOWING MORNING ON THE PREMISES. DUBLIRER
CONSENTED TO THE REQUEST AND THE UNION POSTED A NOTICE ON THE BULLETIN
BOARD.
4. IN ACCORDANCE THERETO, A UNION MEETING WAS HELD AT 8:00 A.M. ON
MAY 25TH ATTENDED BY OVER 40 EMPLOYEES. THE MEETING, PRESIDED OVER BY
KEARON, WAS HELD TO DISCUSS THE ADVERSE WORKING CONDITIONS. HAVING
DECIDED IT WAS UNHEALTHY TO WORK IN THE OFFICE, THE EMPLOYEES AGREED
THAT AT 2:00 P.M. THEY WOULD FILE A GRIEVANCE IN AN UNORTHODOX MANNER,
TO WIT: THE EMPLOYEES WOULD GO TO THE MANAGER'S OFFICE AND TELL HIM
THEY WERE GRIEVED BY THE TERRIBLE CONDITIONS. THEY FURTHER DECIDED TO
SEND A LETTER TO THEIR CONGRESSWOMAN IN WHICH THEY WOULD REGISTER THEIR
COMPLAINT, AND ALL THE EMPLOYEES AGREED TO SIGN THE LETTER.
5. IN THE AFTERNOON OF MAY 25, AT 2:00 P.M. AT LEAST 60 EMPLOYEES,
IN PURSUANCE OF THE PRIOR PLAN, LEFT THEIR DESKS AND PROCEEDED TO THE
DISTRICT MANAGER'S OFFICE. /5/ THERE WERE BETWEEN 20-40 CLAIMANTS IN
THE OFFICE AT THE TIME WHO WERE BEING ATTENDED TO BY THE CLAIM'S
REPRESENTATIVES. UPON LEAVING THE CLAIMANTS, OR THE DESKS, THE
EMPLOYEES WALKED DOWN THE CENTER AISLE OF THE FLOOR AND CONFRONTED
DUBLIRER WHO JUST LEFT HIS OFFICE AFTER MEETING WITH OTHER MANAGEMENT
OFFICIALS. ON SITE REPRESENTATIVE KEARON AND SHOP STEWARD TOW WERE IN
THE FOREFRONT OF THE GROUP AND TOW ACTED AS SPOKESMAN.
6. WHEN THE EMPLOYEES REACHED THE DISTRICT MANAGER'S OFFICER, TOW
STATED TO DUBLIRER THAT IT WAS A FORMAL PROTEST OF THE CONDITIONS
EXISTENT AT THE PREMISES; THAT THE EMPLOYEES WERE UNHAPPY BECAUSE OF
SUCH CONDITIONS, AND THE SITUATION MUST BE CORRECTED. WHEREUPON
DUBLIRER TOLD THE EMPLOYEES THEY WOULD BE HELD RESPONSIBLE FOR THEIR
ACTIONS AND THAT DISCIPLINARY ACTION WOULD BE TAKEN. HE THEN DIRECTED
THEM TO RETURN TO THEIR DESKS. THE UNION OFFICIALS TOLD THE EMPLOYEES
TO GO BACK TO WORK AND MOTIONED THEM TO DO SO. THE ENTIRE INCIDENT,
BETWEEN THE TIME THE EMPLOYEES LEFT THEIR WORK STATIONS AND RETURNED TO
WORK, TOO ABOUT 3-6 MINUTES.
7. BOTH KEARON AND TOW WERE ISSUED A FORMAL REPRIMAND BY DUBLIRER
WHICH, AFTER ONE YEAR, WAS REMOVED FROM THEIR FILES BY THE EMPLOYER.
8. RECORD FACTS SHOW THAT IT WAS CUSTOMARY FOR THE UNION
REPRESENTATIVES TO MEET WITH MANAGEMENT CONCERNING WORKING CONDITIONS
OR
PERSONNEL PROBLEMS WHICH EXISTED AT THE DISTRICT OFFICE. SUCH MEETINGS
WERE USUALLY FORMAL IN NATURE AND ANNOUNCED IN ADVANCE THEREOF.
CONCLUSIONS
COMPLAINANT AND THE REGIONAL DIRECTOR MAINTAIN THAT RESPONDENT WAS
RESPONSIBLE FOR, AND LED, A STRIKE OR WORK STOPPAGE OF ITS EMPLOYEES IN
VIOLATION OF SECTION 19(B)(4) OF THE ORDER. THEY INSIST THAT WHEN THE
EMPLOYEES LEFT THEIR DESKS ON MAY 25, 1978 TO PROTEST THEIR WORKING
CONDITIONS TO MANAGEMENT, SUCH CONDUCT CONSTITUTED A STRIKE OR WORK
STOPPAGE WHICH IS OUTLAWED IN THE PUBLIC SECTOR.
CONTRARIWISE, RESPONDENT CONTENDS THERE WAS NO WORK STOPPAGE ON SAID
DATE WHICH RAN AFOUL OF THE ORDER. FURTHER, IT INSISTS THAT, ASSUMING
ARGUENDO, SUCH A STOPPAGE OCCURRED, THE UNION IS NOT RESPONSIBLE
THEREFOR SINCE IT HAD NO PRIOR KNOWLEDGE OF THE INCIDENT NOR DID IT
ENCOURAGE THE ACTIVITY. THE UNION ALSO CLAIMS THAT ABNORMAL AND UNSAFE
WORKING CONDITIONS EXIST AT THE FLATBUSH OFFICE WHICH JUSTIFIED THE
CESSATION OF WORK UNDER THE CIRCUMSTANCES. /6/ MOREOVER, IT MAINTAINS
THAT ANY STOPPAGE WAS DE MINIMUS AND THUS THE COMPLAINT SHOULD BE
DISMISSED.
THE PRINCIPAL ISSUES THUS PRESENTED FOR DETERMINATION ARE: (1)
WHETHER THE RESPONDENT UNION WAS RESPONSIBLE FOR THE STOPPAGE OR
CESSATION OF WORK BY THE EMPLOYEES WHICH OCCURRED ON MAY 25, 1978; (2)
WHETHER SUCH CESSATION OF WORK BY EMPLOYEES CONSTITUTED A STRIKE OR WORK
STOPPAGE UNDER 19(B)(4) OF THE ORDER; (3) WHETHER THE INCIDENT WAS SO
SLIGHT AS TO JUSTIFY INVOKING THE DE MINIMUS DOCTRINE AND A DISMISSAL
HEREIN.
(1) RECORD FACTS BELIEVE AN ATTEMPT BY RESPONDENT TO DISCLAIM
RESPONSIBILITY FOR THE ACTS OF THE EMPLOYEES ON MAY 25. IT CALLED A
"UNION" MEETING THAT MORNING TO DISCUSS PLANS FOR THE PROTEST BY THE
WORKERS TO MANAGEMENT. KEARON PRESIDED THREAT, AND ARRANGEMENTS WERE
MADE TO APPROACH DUBLIRER EN MASSE AT 2:00 P.M. FURTHER, THE UNION
OFFICERS NOT ONLY WERE IN THE LEAD OF THE GROUP, BUT THEY ACTED AS
SPOKESMEN IN ADVISING THE EMPLOYER OF THE REASON FOR THE PROTEST.
THE FOREGOING LEAVES LITTLE DOUBT IN MY MIND THAT RESPONDENT UNION
SPONSORED AND LED THE EMPLOYEES IN THEIR ACTIVITY ON MAY 25. THAT THE
BARGAINING REPRESENTATIVE HAD KNOWLEDGE OF THE PLANNED CONFRONTATION IS
SCARCELY REFUTABLE IN VIEW OF THE MEETINGS CALLED BY IT AND THE
DISCUSSIONS THEREAT. MOREOVER, IT ACTUALLY LED THE WORKERS WHEN THEY
APPROACHED MANAGEMENT. RESPONDENT'S SUPPORT OF THE ACTION TAKEN BY
EMPLOYEES IN LEAVING THEIR DESKS TO SPEAK WITH DUBLIRER IS APPARENT FROM
THE FACT THAT THE SHOP STEWARD, AS SPOKESMAN FOR THE GROUP, ADVISED THE
DIRECTOR THAT THEY WANTED TO PROTEST THE WORKING CONDITIONS. FURTHER,
IT IS INCUMBENT UPON A UNION TO TAKE EFFECTIVE ACTION TO PREVENT A
CESSATION OR STOPPAGE OF WORK IN ORDER TO AVOID RESPONSIBILITY THEREFOR.
OTHERWISE, THE INFERENCE IS INESCAPABLE THAT THE BARGAINING
REPRESENTATIVE CONDONED SAID ACTION BY THE WORKERS. SEE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3486, AFL-CIO, A/SLMR NO. 864;
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, INC., ET AL, SUPRA.
RESPONDENT DID NOT DO SO HERE, BUT, ON THE CONTRARY, IT ENCOURAGED AND
ASSISTED THE EMPLOYEES IN THEIR LEAVING WORK AND CONFRONTING DUBLIRER RE
THEIR WORKING CONDITIONS. ACCORDINGLY, I REJECT THE ARGUMENT THAT
RESPONDENT WAS NOT RESPONSIBLE FOR THE WORK STOPPAGE ON MAY 25, 1978.
(2) WHILE RESPONDENT CONCEDES THE EMPLOYEES CEASED WORK TO PROTEST
EXISTENT WORKING CONDITIONS, IT INSISTS THAT SUCH CONDUCT WAS NOT A
STRIKE OR WORK STOPPAGE WITHIN THE MEANING OF SECTION 19(B)(4) OF THE
ORDER. IT TAKES THE POSITION THAT THE STOPPAGE IS NOT EQUITABLE WITH A
STRIKE; THAT THE LATTER TERM CONNOTES REFUSAL TO PROVIDE SERVICES,
WHICH WAS NOT THE INTENT OF THE EMPLOYEES HEREIN. RATHER WAS IT THE
INTENTION OF THE WORKERS TO PRESENT A GRIEVANCE TO MANAGEMENT, AND THIS
RIGHT WAS AFFORDED THEM UNDER THE CONTRACT. (ARTICLE XXXIV, SECTION 3)
THIS PARTICULAR ISSUE HAS BEEN DEALT WITH IN THE PRIVATE SECTOR WHERE
A STRIKE, OTHER THAN ONE OCCURRING IN FACE OF A NO-STRIKE CLAUSE, IS
GENERALLY PROTECTED ACTIVITY. HOWEVER, IN THE PUBLIC SECTOR THIS
CONSTITUTES A CASE OF FIRST IMPRESSION. NEITHER THE ORDER NOR THE STUDY
COMMITTEE REPORT AND RECOMMENDATIONS, WHICH LED TO EXECUTIVE ORDER
11491, IS PARTICULARLY HELP IN DETERMINING TO WHAT INTENT A CESSATION OF
WORK SHALL BE DEEMED A STRIKE OR WORK STOPPAGE WHICH IS OUTLAWED HEREIN.
SECTION 19(B)(4) OF THE ORDER MERELY PROVIDES THAT A LABOR ORGANIZATION
SHALL NOT "CALL OR ENGAGE IN A STRIKE, WORK STOPPAGE, OR SLOW DOWN . . .
OR CONDONE ANY SUCH ACTIVITY BY FAILING TO TAKE AFFIRMATIVE ACTION TO
PREVENT OR STOP IT." THE REPORT & RECOMMENDATION, AFTER SPECIFICALLY
DECLARING THAT A LABOR ORGANIZATION MUST NOT CONDONE A STRIKE /7/ BY ANY
GROUP IT REPRESENTS, DOES STATE AS FOLLOWS:
"OFFICIALS OF THE ORGANIZATION HAVE THE DUTY, IN VIEW OF THE
PROCEDURES PROVIDED FOR
PEACEFUL AND ORDERLY RESOLUTION OF DISPUTES AND DIFFERENCES BETWEEN
EMPLOYEES AND MANAGEMENT,
TO EXERCISE ALL ORGANIZATIONAL AUTHORITY AVAILABLE TO THEM TO PREVENT
OR STOP ANY SUCH ACTION
BY THE ORGANIZATIONS OR ANY OF ITS LOCALS, AFFILIATES, OR MEMBERS."
TURNING TO THE PRIVATE SECTOR FOR GUIDANCE, IT IS NOTED THAT THE
NATIONAL LABOR RELATIONS BOARD HAS HAD OCCASION TO CONSIDER WHETHER
CERTAIN WORK STOPPAGES RAN COUNTER TO NO-STRIKE CLAUSES CONTAINED IN
COLLECTIVE BARGAINING AGREEMENTS. THUS, IN ANHEUSER-BUSCH, INC., 239
NLRB NO. 23, SEVERAL EMPLOYEES REFUSED TO REPORT TO THEIR ASSIGNED
DUTIES SINCE WELDING OPERATIONS WERE BEING PERFORMED IN THE BUILDING AND
THEY VIEWED CONDITIONS AS BEING HAZARDOUS. IT WAS FOUND BY THE BOARD
THAT THE WORK STOPPAGE WAS NOT THE TYPE CONTEMPLATED BY THE NO-STRIKE
PROVISIONS IN THE CONTRACT BETWEEN THE EMPLOYER AND THE UNION. THIS
CONCLUSION WAS REACHED BECAUSE THE STOPPAGE WAS OF BRIEF DURATION, DID
NOT INTERFERE WITH PRODUCTION, AND THE EMPLOYEES HAD NO INTENTION OF
PRESSURING THE COMPANY TO GRANT CONCESSIONS OR TO PROTEST THE FIRM'S
PROCEDURES. ACCORDINGLY, THE BOARD CONCLUDED THE REFUSAL TO REPORT THE
BE ASSIGNED DUTIES WAS NOT A STRIKE. MOREOVER, IN NEWPORT NEWS
SHIPBUILDING, 236 NLRB NO. 197 A WORK STOPPAGE WAS NOT DEEMED A STRIKE
IN VIOLATION OF A NO-STRIKE CLAUSE WHERE 20 EMPLOYEES, WHILE WAITING TO
LEARN IF THEY COULD BE SENT HOME DUE TO THE COLD, WERE NOT PERFORMING
THEIR WORK TASKS. THEIR CONCERTED ACTIVITY WAS DEEMED PROTECTED SO THAT
A DISCHARGE OF THE LEADER AND A REPRIMAND OF OTHERS WERE HELD UNLAWFUL.
THE BOARD FOUND IT SIGNIFICANT THAT THERE WAS NO ATTEMPT TO SUBVERT THE
GRIEVANCE AND ARBITRATION PROCEDURES, AND, MOREOVER, THE EMPLOYEES WERE
NOT ATTEMPTING TO EXERT PRESSURE UPON THE EMPLOYER TO SEND THEM HOME.
THE WORK STOPPAGE WAS NOT DEEMED TO BE THE TYPE OF CONDUCT CONTEMPLATED
BY THE NO-STRIKE CLAUSE IN THE PARTIES' AGREEMENT.
THUS IT BECOMES CLEAR THAT IN THE PRIVATE SECTOR THERE IS A
RELUCTANCE TO CHARACTERIZE A CESSATION OF WORK AS A STRIKE ABSENT AN
ATTEMPT TO BRING PRESSURE UPON AN EMPLOYER, OR TO PROTEST WORKING
CONDITIONS. IN MASONIC & EASTERN STAR HOME OF THE DISTRICT OF COLUMBIA,
206 NLRB NO. 127 THE EMPLOYEES AND THEIR UNION REPRESENTATIVE CONFRONTED
BY MANAGEMENT TO GRIEVE RE THE EMPLOYER'S USE OF DOGS AND A SPEECH MADE
BY THE LABOR RELATIONS ADVISOR. THE ABSENCE OF THE WORKERS FROM THEIR
DUTIES DID NOT, IN THE BOARD'S MIND, REACH THE LEVEL OF A STRIKE. IT
WAS, HOWEVER, DEEMED A WORK STOPPAGE DESIGNED TO PRESENT A GRIEVANCE
COLLECTIVELY TO THE EMPLOYER. SUCH A STOPPAGE TO GRIEVE RE CONDITIONS
OF EMPLOYMENT WAS PROTECTED ACTIVITY UNDER THE NATIONAL LABOR RELATIONS
ACT.
WHILE WE ARE NOT BOUND BY THE DECISIONAL LAW IN THE PRIVATE SECTOR, I
CONCLUDE THAT THE RATIONALE EXPRESSED IN THE CITED CASES SHOULD BE
EQUALLY APPLICABLE HEREIN. THUS THE TOUCHSTONE OF WHETHER ABSENCE FROM
DUTIES CONSTITUTES A WORK STOPPAGE, WHICH TRANSGRESSES THE ORDER, MUST
REST ON THE CIRCUMSTANCES SURROUNDING THE CESSATION. IF THE STOPPAGE IS
ENGAGED IN TO PROTEST EMPLOYMENT CONDITIONS OR GRIEVE ABOUT THEM, SUCH
ACTIVITY WOULD, IN MY OPINION, FLOUT THE ORDER. FURTHER, SUCH CONDUCT,
IF TO BE DESIGNED TO BRING PRESSURE TO BEAR UPON MANAGEMENT, MUST FALL
WITHIN THE PROSCRIPTION OF 19(B)(4).
IN THE CASE AT BAR I AM PERSUADED THAT THE CONFRONTATION WITH
COMPLAINANT BY THE EMPLOYEES, AND THEIR UNION LEADERS, ON MAY 25, 1978
WAS A WORK STOPPAGE WITHIN THE CONTEMPLATION OF SECTION 19(B)(4). THE
WORKERS CEASED WORKING TO PROTEST THE PHYSICAL CONDITIONS AT THE
PREMISES. THEIR CONVERTED CONDUCT, WITH THE LEADERSHIP OF THEIR
BARGAINING REPRESENTATIVES, WAS DIRECTLY RELATED TO THEIR EMPLOYMENT.
MOREOVER, WHEN 60 EMPLOYEES LEAVE THEIR STATION AND APPROACH AN EMPLOYER
TO GRIEVE RE WORKING CONDITIONS, ALBEIT THE LATTER ARE DEPLORABLE, SUCH
ACTION MAY BE PROPERLY TERMED A PRESSURE TACTIC. AS SUCH, IT IS A
CONCERTED WORK STOPPAGE. SEE MASONIC EASTERN STAR HOME OF D.C., SUPRA.
RESPONDENT ARGUES IN THIS RESPECT, THAT THE WORKERS WERE DOING WHAT IS
PERMITTED UNDER THE CONTRACT, I.E., PRESENTING A GRIEVANCE TO DUBLIRER.
HOWEVER, THE CONTRACT HEREIN SET FORTH SPECIFIC STEPS TO FOLLOW WHEN
INITIATING AND PRESENTING A GRIEVANCE. NONE OF SUCH PROCEDURES
ENCOMPASSES THE ACTION RESORTED TO HERE BY THE EMPLOYEES. I CANNOT
AGREE THAT A CESSATION OF WORK BY 60 EMPLOYEES TO ORALLY GRIEVE IS AN
ACCEPTABLE METHOD OF PRESENTING A GRIEVANCE, OR THAT SUCH WAS
CONTEMPLATED BY ARTICLE XXXIV OF THE AGREEMENT, SO AS TO BE EXCLUDED
FROM THE DEFINITION OF WORK STOPPAGE UNDER THE ORDER.
RESPONDENT STRESSES THE ARGUMENT THAT THE WORKERS HEREIN DID NOT
REFUSE TO PROVIDE SERVICES, AND THAT SUCH A REFUSAL IS THE SINE QUA NON
OF A STRIKE. IT MAY WELL BE THAT THE INDIVIDUALS WERE CONCERNED
PRIMARILY WITH PROTESTING TO MANAGEMENT, BUT THE FACT REMAINS THAT THEY
WITHHELD SERVICES IN THE COURSE THEREOF. DESPITE THE BRIEF TERM OF THE
CESSATION, THIS CONCERTED ACTION WAS UTILIZED AS A MEANS OF BRINGING
PRESSURE TO BEAR UPON MANAGEMENT. IN MY OPINION THE ORDER INTENDED TO
OUTLAW ANY WORK STOPPAGE OF THIS NATURE, AND, ACCORDINGLY I FIND IT RAN
AFOUL OF 19(B)(4) THEREOF.
(3) IN CONTENDING THAT THE WORK STOPPAGE WAS OF BRIEF DURATION AND
THUS IS PROPERLY DEEMED DE MINIMUS, RESPONDENT CITES VARIOUS CASES IN
THE PUBLIC SECTOR IN SUPPORT THEREOF. IT APPEARS, HOWEVER, THAT THESE
CASES DEAL WITH BRIEF INTERRUPTIONS DURING COLLECTIVE BARGAINING WHERE
NEGOTIATIONS ARE CONTINUED THEREAFTER. I CONSIDER THESE INSTANCES AS
INAPPOSITE IN DETERMINING WHETHER THE STOPPAGE HEREIN WAS, IN FACT, DE
MINIMUS IN NATURE. THE BRIEF INTERRUPTION DURING NEGOTIATIONS IS VIEWED
IN THE CONTEXT OF THE TOTALITY OF THE EMPLOYER'S BARGAINING CONDUCT. IN
SUCH AN INSTANCE, THE CONCLUSION THAT THE CESSATION HAS LITTLE EFFECT
UPON THE TOTAL CONDUCT IS QUITE JUSTIFIABLE. CF. VANDENBERG AIR FORCE
BASE, ET. AL, FLBC NO. 74A-77. A STRIKE OR WORK STOPPAGE, HOWEVER, OF
AT LEAST 60 EMPLOYEES, IN THE PRESENCE OF MEMBERS OF THE PUBLIC WHO ARE
CUSTOMERS, IS MORE THAN A BRIEF INTERRUPTION. IT IS ALSO A SHOW OF
FORCE, AND NOT A MINOR OCCURRENCE. BY ITS VERY NATURE A WORK STOPPAGE
UNDER THESE CIRCUMSTANCES RUNS COUNTER TO A DE MINIMUS ACTION, AND I
REJECT RESPONDENT'S CONTENTION IN THIS REGARD.
HAVING FOUND THAT RESPONDENT UNION ENGAGED IN ACTIVITY WHICH VIOLATED
SECTION 19(B)(4). I SHALL RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ADOPT THE FOLLOWING RECOMMENDED ORDER DESIGNED TO EFFECTUATE
THE POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT NEW YORK-NEW JERSEY COUNCIL, LOCAL 3369,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO SHALL:
1. CEASE AND DESIST FROM:
(A) ENCOURAGING OR ENGAGING IN A WORK STOPPAGE AGAINST THE SOCIAL
SECURITY ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT OFFICE, OR ANY
OTHER AGENCY OF THE GOVERNMENT OF THE UNITED STATES, OR ASSISTING OR
PARTICIPATING IN SUCH ACTIVITY.
(B) CONDONING ANY SUCH ACTIVITY BY THE FAILURE TO TAKE AFFIRMATIVE
ACTION TO PREVENT OR STOP IT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE EXECUTIVE ORDER:
(A) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT ALL OTHER PLACES WHERE NOTICES TO MEMBERS AND TO EMPLOYEES OF THE
SOCIAL SECURITY ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT OFFICE ARE
CUSTOMARILY POSTED, INCLUDING SPACES ON BULLETIN BOARDS MADE AVAILABLE
TO NEW YORK-NEW JERSEY COUNCIL, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3369 BY THE SOCIAL SECURITY ADMINISTRATION, FLATBUSH,
NEW YORK DISTRICT OFFICE, 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
PRESIDENT OF NEW YORK-NEW JERSEY COUNCIL, LOCAL 3369 AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, AND SHALL BE POSTED FOR A PERIOD OF 60
CONSECUTIVE DAYS. REASONABLE STEPS SHALL BE TAKEN BY THE NEW YORK-NEW
JERSEY COUNCIL, LOCAL 3369, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO TO ENSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) MAIL A COPY OF SAID NOTICE TO EACH OF ITS MEMBERS AT HIS OR HER
LAST KNOWN HOME ADDRESS.
(C) FURNISH SUFFICIENT COPIES OF SAID NOTICE WITHIN 14 DAYS OF THE
DATE OF HIS DECISION TO THE SOCIAL SECURITY ADMINISTRATION, FLATBUSH,
NEW YORK DISTRICT OFFICE FOR POSTING IN CONSPICUOUS PLACE WHERE IT
CUSTOMARILY POSTS INFORMATION TO ITS EMPLOYEES. THE SOCIAL SECURITY
ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT OFFICE SHALL MAINTAIN SUCH
NOTICES FOR A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(D) PURSUANT TO SECTION 203.37 OF THE REGULATIONS 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.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 23, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF THE SOCIAL
SECURITY ADMINISTRATION FLATBUSH, NEW YORK DISTRICT
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SERVICE
WE HEREBY NOTIFY OUR MEMBERS AND ALL EMPLOYEES OF THE
SOCIAL SECURITY ADMINISTRATION, FLATBUSH, NEW YORK
DISTRICT THAT:
WE WILL NOT ENCOURAGE OR ENGAGE IN A WORK STOPPAGE AGAINST THE SOCIAL
SECURITY ADMINISTRATION, FLATBUSH, NEW YORK DISTRICT, OR ANY OTHER
AGENCY OF THE GOVERNMENT OF THE UNITED STATES, OR ASSIST OR PARTICIPATE
IN SUCH ACTIVITY.
WE WILL NOT CONDONE ANY OF THE ABOVE-MENTIONED CONDUCT AND WE WILL
TAKE AFFIRMATIVE ACTION TO PREVENT OR STOP IT, IN THE EVENT IT OCCURS.
NEW YORK-NEW JERSEY COUNCIL
LOCAL 3369, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
DATED: BY:
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, NEW YORK
REGION, WHOSE ADDRESS IS 26 FEDERAL PLAZA, ROOM 1751, NEW YORK, NEW YORK
10007.
--------------- FOOTNOTES$ ---------------
/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.
/2/ COUNSEL FOR RESPONDENT OBJECTED AT THE HEARING TO THE APPEARANCE
OF THE REGIONAL ATTORNEY ON BEHALF OF THE REGIONAL DIRECTOR FOR THE NEW
YORK REGION. THIS OBJECTION WAS OVERRULED SINCE UNDER SECTION 203.7 OF
THE REGULATIONS THE DIRECTOR IS A PARTY TO PROCEEDINGS INVOLVING ALLEGED
VIOLATIONS OF 19(B)(4). I FIND NO REASON TO CHANGE MY RULING
NOTWITHSTANDING THAT THE PROCEEDINGS WAS NOT EXPEDITED UNDER SAID
SECTIONS. SEE AFGE, LOCAL 3486, AFL-CIO, A/SLMR NO. 864.
/3/ COUNSEL FOR THE REGIONAL DIRECTOR FILED WITH HIS BRIEF A MOTION
TO CORRECT THE TRANSCRIPT HEREIN. THE MOTION, WHICH IS ATTACHED HERETO,
IS GRANTED AND THE TRANSCRIPT IS CORRECTED ACCORDINGLY.
/4/ LOCAL 3369 REPRESENTS EMPLOYEES AT 50 DISTRICT OFFICES.
/5/ WHILE THE RECORD REFLECTS SLIGHT VARIATIONS IN THE RESPECTIVE
VERSIONS OF WHAT OCCURRED, AS WELL AS THE SPECIFIC STATEMENTS MADE AT
THE CONFRONTATION, THE ESSENTIAL FACTS RE THE CONFRONTATION AT THE
OFFICE ARE NOT IN DISPUTE.
/6/ RESPONDENT URGES THAT SECTION 502 OF THE NLRA SHOULD BE
APPLICABLE HEREIN. THE CITED SECTION PROVIDES THAT QUITTING WORK DUE TO
ABNORMALLY DANGEROUS CONDITIONS AT WORK IS NOT DEEMED A STRIKE. WHILE
IMMINENT DANGER TO LIFE OR HEALTH MIGHT EXCUSE EMPLOYEES WHO LEAVE THEIR
WORK, I CONCLUDE NO SUCH CLEAR AND PRESENT DANGER EXISTED AT THIS
DISTRICT OFFICE.
/7/ THE USE OF THIS TERM IS TAKEN TO INCLUDE A WORK STOPPAGE SINCE
THE ORDER PROHIBITS BOTH ACTIVITIES.