[ v09 p199 ]
09:0199(31)CA
The decision of the Authority follows:
9 FLRA No. 31
FEDERAL MEDIATION AND CONCILIATION
SERVICE
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-118
Charging Party
Case No. 3-CA-818
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY. THE GENERAL COUNSEL
FILED EXCEPTIONS TO THE JUDGE'S DECISION, AND THE RESPONDENT FILED AN
OPPOSITION THERETO.
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. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-818 BE, AND
IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
ISSUED, WASHINGTON, D.C., JUNE 24, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
FEDERAL MEDIATION AND CONCILIATION SERVICE
RESPONDENT
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-118 /2/
CHARGING PARTY
NANCY B. BROFF, ESQ.
TED M. CHASKELSON, ESQ.
FOR THE RESPONDENT
ANA DE LA TORRE, ESQ.
MARGARET BERKOWITZ, ESQ.
FOR THE GENERAL COUNSEL
THOMAS A. MAKOWSKI, ESQ.
FOR THE CHARGING PARTY
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN
UNFAIR LABOR PRACTICE CHARGED FILED JANUARY 22, 1980, WITH THE FEDERAL
LABOR RELATIONS AUTHORITY. CONSEQUENTLY, ON JUNE 23, 1980, THE ACTING
REGIONAL DIRECTOR, REGION III, OF THE AUTHORITY ISSUED A COMPLAINT
ALLEGING THAT RESPONDENT VIOLATED SECTION 7116(A)(1) OF THE STATUTE BY
ACTIONS AND STATEMENTS MADE BY ITS AGENTS AT MEETINGS WHICH TOOK PLACE
ON AUGUST 2, 1979; OCTOBER 10, 1979; AND DECEMBER 14, 1979.
RESPONDENT DENIES THAT ANY MEETING OR ANY STATEMENT MADE AT THOSE
MEETINGS CONTRAVENES THE STATUTE. RESPONDENT ALSO MOVES TO DISMISS THE
COMPLAINT FOR FAILURE TO STATE AN UNFAIR LABOR PRACTICE.
A HEARING WAS HELD ON DECEMBER 16, 1980, IN WASHINGTON, D.C. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
AND TO INTRODUCE EVIDENCE. POST HEARING BRIEFS HAVE BEEN FILED AND
CONSIDERED. UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS.
FINDINGS OF FACT
THE UNION BEGAN ORGANIZING IN JUNE OF 1979. SEVERAL OF THE
PARTICIPANTS, INCLUDING MARY DURKIN WHO WAS TO BECOME PRESIDENT AND
PATRICIA YANKUS WHO WAS TO BECOME SECRETARY-TREASURER OF THE UNION,
BEGAN DISTRIBUTING UNION LITERATURE AND SOLICITING SIGNATURES TO
EVIDENCE INTEREST IN ORGANIZING. RESPONDENT WAS WELL AWARE OF THIS
ACTIVITY SINCE IT BEGAN IN AN OPEN ATMOSPHERE WITH THE ORGANIZERS
PUBLICLY REVEALING THEIR LEADERSHIP IN NEWSLETTERS.
EARLY ON, THE FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS) TOOK
SOME EXCEPTION TO THE HANDBILLING CARRIED OUT BY THE ORGANIZERS AND TO
THE USE OF CONFERENCE ROOMS FOR UNION BUSINESS. /3/ THIS INITIAL PHASE
OF UNION ORGANIZING COINCIDED WITH A PERIOD OF DELICATE NEGOTIATIONS
BETWEEN RESPONDENT AND THE OFFICE OF MANAGEMENT AND BUDGET CONCERNING
STAFFING LEVELS AND BUDGET AT FMCS. THE FOCUS OF THE NEGOTIATIONS WAS
ON DESK AUDITS SEEKING TO JUSTIFY THE RETENTION OF EACH JOB AND TO AVOID
ANY REDUCTION-IN-FORCE. RESPONDENT WAS CONCERNED THAT CONFIDENTIAL
BUDGET AND PERSONNEL INFORMATION, PERTINENT TO THOSE NEGOTIATIONS, HAD
BEEN DISCLOSED IN THE NASCENT UNION'S PUBLICATIONS. IT FEARED FURTHER
DISCLOSURES SINCE HANDBILLS WERE BEING PLACED DIRECTLY ON TOP OF
EMPLOYEE DESKS WHERE SUCH CONFIDENTIAL INFORMATION WAS LEFT OVERNIGHT
AND EXPOSED TO THE VIEW OF ANYONE WITH ACCESS TO THE DESK BEFORE OR
AFTER WORKING HOURS. THESE WERE THE CIRCUMSTANCES WHICH LED TO A
MEETING ON AUGUST 2, 1979, BETWEEN MS. DURKIN AND MR. KENNETH MOFFETT
AND THE FIRST OF THE THREE ALLEGED UNFAIR LABOR PRACTICES REFERRED TO IN
THE COMPLAINT.
MS. DURKIN, THE PRESIDENT OF THE UNION, IS A BUDGET ANALYST WITH
FMCS. SHE HAS BEEN EMPLOYED BY RESPONDENT SINCE SEPTEMBER, 1973.
ALTHOUGH HER JOB IS NOT CATEGORIZED AS "CONFIDENTIAL", SHE HAS ACCESS TO
CONFIDENTIAL BUDGET INFORMATION IN THE ROUTINE PERFORMANCE OF HER
DUTIES. ON A NUMBER OF OCCASIONS AS A MEMBER OF A GROUP PARTICIPATING
IN BRIEFING SESSIONS PREPARATORY TO BUDGET SUBMISSIONS TO CONGRESS AND
OMB, MS. DURKIN HAS MET WITH MR. MOFFETT, DEPUTY DIRECTOR OF RESPONDENT.
EMPLOYEES OF RESPONDENT ROUTINELY ADDRESS MR. MOFFETT BY HIS FIRST NAME
AND HE STATED THAT HE WAS ON A FIRST NAME BASIS WITH MS. DURKIN. SHE
STATED THAT SHE DOESN'T CALL HIM ANYTHING. MR. MOFFETT INITIATED THE
PRIVATE MEETING HELD BETWEEN THEM ON AUGUST 2, 1979.
AS NOTED ABOVE, MR. MOFFETT WAS CONCERNED WITH THE POSSIBLE
DISCLOSURE DURING THE ORGANIZING CAMPAIGN OF CONFIDENTIAL INFORMATION
DETRIMENTAL TO RESPONDENT'S NEGOTIATING POSITION WITH OMB. TO THAT END,
HE SOUGHT TO CONVEY TO MS. DURKIN SOME "FRIENDLY ADVICE" AT THIS
MEETING. MS. DURKIN BROUGHT A NOTE PAD BECAUSE SHE WAS NERVOUS. MR.
MOFFETT SAID THAT HE WANTED TO TALK ABOUT THE UNION AND "CLEAR THE AIR",
AND THAT HE WANTED TO DISCUSS HER HANDLING OF CONFIDENTIAL INFORMATION.
HE SAID THAT HE WANTED TO "FOREWARN" HER ABOUT THIS CONFIDENTIALITY.
SHE ASKED WHETHER SHE NEEDED A REPRESENTATIVE AND WHETHER THIS MATTER
WOULD LEAD TO A DISCIPLINARY CHARGE. HE STATED NO, THAT HE MERELY
WANTED TO FOREWARN HER.
HE PREFACED HIS ADVICE BY TELLING HER THAT HE HAD SPENT ALMOST FIVE
YEARS AS A STAFF ORGANIZER WITH THE MINE WORKERS, THAT HIS GRANDFATHER
HAD BEEN IN THE MINE WORKERS' UNION AND THAT HIS FATHER HAD BEEN A UNION
ORGANIZER FOR MOST OF HIS LIFE BEFORE BECOMING PRESIDENT OF AN
INTERNATIONAL UNION FOR THIRTEEN YEARS. HE ALSO TOLD HER THAT HE KNEW
THE HISTORY OF HER FAMILY. BY THESE REMARKS, MR. MOFFETT ATTEMPTED TO
CONVEY TO MS. DURKIN THAT HE WAS AWARE OF HOW UNION BUSINESS COULD BE
CONDUCTED OTHER THAN IN THE WAY HE FELT IT WAS BEING CONDUCTED AT THAT
TIME AT FMCS. /4/
THERE IS NO DISPUTE AS TO THE BALANCE OF THE CONVERSATION. NERVOUS,
AND UNCONVINCED THAT THIS MEETING WOULD NOT LEAD TO SOME ACTION AGAINST
HER, MS. DURKIN TYPED UP HER NOTES IN THE FORM OF A NEWSLETTER WHICH WAS
DISTRIBUTED THE NEXT DAY, BUT NOT BEFORE IT WAS CLEARED BY THE UNION
ATTORNEY WHO WANTED "TO MAKE SURE THAT NOTHING CONTAINED IN THE
NEWSLETTER WOULD JEOPARDIZE OUR CHANCES OF FILING A CHARGE LATER."
REFERRING TO MR. MOFFETT, THE NEWSLETTER CONTAINED THE FOLLOWING:
HE SAID THAT OUR NEWSLETTERS WERE "GLIB" AND "CHATTY" AND THAT
WHETHER THE DOORS TO
PERSONNEL ARE LOCKED IS NONE OF OUR BUSINESS.
HE SAID "IF YOU ARE GOING TO BE A UNION, YOU OUGHT TO ACT LIKE ONE,"
AND THAT HE WOULD
PREFER US TO HAND OUT OUR NEWSLETTERS IN FRONT OF THE BUILDING-- NOT
DESK TO DESK.
HE SAID THAT HE DID NOT KNOW HOW MUCH EXPERIENCE I HAD IN UNIONIZING,
BUT THAT HE HAD NEVER
HEARD OF A REQUEST FOR CONFERENCE ROOMS ON "MANAGEMENT PROPERTY". I
SAID I BELIEVED THERE WAS
A DIFFERENCE IN FEDERAL SECTOR UNIONIZING, AS OPPOSED TO PRIVATE
SECTOR ORGANIZING-- THAT
OPPOSITION OF A UNION WAS O.K. IN THE PRIVATE SECTOR, BUT THAT
MANAGERS WERE TO REMAIN NEUTRAL
IN THE FEDERAL SECTOR. HE WANTED TO CONTINUE TO DISCUSS THE
CONFERENCE ROOM ISSUE, BUT I SAID
SINCE IT WAS BEFORE THE FLRA, I DID NOT WANT TO DISCUSS IT.
HE SAID AGAIN THAT HE WANTED TO REMIND ME ABOUT THE CONFIDENTIAL
NATURE OF MY JOB.
-- MARY DURKIN
MS. DURKIN DID NOT KNOW OF ANY OTHER BUDGET ANALYSTS WHO WERE
SIMILARLY REMINDED OF THE CONFIDENTIAL NATURE OF THEIR POSITIONS.
HOWEVER, THERE IS NO EVIDENCE THAT OTHERS WITH SIMILAR JOB DESCRIPTIONS
WERE IN POSITIONS TO PUBLISH CONFIDENTIAL INFORMATION IN CONNECTION WITH
THE ORGANIZING CAMPAIGN. THERE WAS EVIDENCE THAT EMPLOYEES WHOSE
POSITIONS WERE QUESTIONED AS BEING CONFIDENTIAL HAD BEEN REMINDED OF
RESPONDENT'S POLICY OF NONDISCLOSURE OF SUCH INFORMATION.
THE SECOND MEETING REFERRED TO IN THE COMPLAINT OCCURRED ON OCTOBER
10, 1979. THE UNIT STATUS OF SEVERAL EMPLOYEES WAS IN QUESTION BUT,
WHEN IT WAS ASCERTAINED THAT THE NUMBER OF CHALLENGED POSITIONS HAD
FALLEN BELOW FIFTEEN PERCENT, THE AUTHORITY REPRESENTATIVES PRESENT
INDICATED THAT AN ELECTION COULD BE HELD. AT THIS POINT IN THE MEETING
DAVID VAUGHN, RESPONDENT'S GENERAL COUNSEL, INDICATED THAT FMCS HAD
SERIOUS CONCERNS ABOUT THE STATUS OF PATRICIA YANKUS, A SECRETARY IN A
POSITION CHALLENGED BY RESPONDENT TO BE CONFIDENTIAL. AS NOTED ABOVE,
MS. YANKUS WAS A UNION OFFICER AND RESPONDENT WAS CONCERNED THAT SHE
WOULD BE PLACED IN A POSITION OF POSSIBLE CONFLICT OF INTEREST SINCE SHE
HAD ACCESS TO AGENCY CONFIDENTIAL INFORMATION AND AGENCY CONFIDENTIAL
INFORMATION HAD BEEN DISCLOSED IN UNION ORGANIZING LITERATURE. MS.
YANKUS WAS NOT BEING ACCUSED OF LEAKING INFORMATION NOR HAD SHE EVER
BEEN REPRIMANDED AT ANY PRIOR TIME FOR SO DOING. MR. VAUGHN DID STATE
THAT ANY EMPLOYEE RESPONSIBLE FOR LEAKING CONFIDENTIAL INFORMATION WOULD
BE DEALT WITH ACCORDINGLY. SPEAKING THEN TO THE POTENTIAL CONFLICT OF
INTEREST, MR. VAUGHN SUGGESTED THAT ONE ALTERNATIVE MIGHT BE THAT MS.
YANKUS TAKE A LEAVE OF ABSENCE FROM HER UNION POSITION PENDING THE
RESOLUTION OF HER STATUS AS A CONFIDENTIAL EMPLOYEE. /5/ THE UNION
ATTORNEY THEN STATED THAT THAT WOULD BE A MATTER FOR INTERNAL UNION
CONSIDERATION. MR. VAUGHN AGREED.
MS. YANKUS TOOK MR. VAUGHN'S REMARKS AS A THREAT TO "PULL SOMETHING"
IF SHE DIDN'T LEAVE. MS. DURKIN WAS VERY UPSET AND ANGRY. SHE THOUGHT
IF MS. YANKUS LEFT, THAT WOULD BE THE END OF THE UNION.
THE UNION WON THE REPRESENTATION ELECTION IN NOVEMBER, 1979. TWO
NEGOTIATION SESSIONS OVER COLLECTIVE BARGAINING WERE THEN HELD IN
DECEMBER, ONE ON THE 7TH AND ONE ON THE 14TH. THE SESSION ON THE 14TH
BECAME A SUBJECT MATTER OF THE COMPLAINT.
AT THE NEGOTIATION SESSION ON DECEMBER 14, 1979, ASSISTANT GENERAL
COUNSEL NANCY BROFF, ACTING AS CHIEF NEGOTIATOR FOR RESPONDENT, TOLD MS.
YANKUS THAT IF IT WERE LATER DETERMINED THAT HER POSITION WAS EXCLUDED
FROM THE BARGAINING UNIT, SHE WOULD HAVE TO PAY BACK ALL OFFICIAL TIME
USED OUT OF HER ANNUAL LEAVE BALANCE. MS. YANKUS RESPONDED THAT SHE WAS
AWARE THAT SHE WOULD BE CHARGED FOR ANNUAL LEAVE IF SHE WERE FOUND NOT
TO BE A MEMBER OF THE BARGAINING UNIT BUT THAT THE UNION FELT THAT SHE
WAS INDEED A MEMBER OF THAT UNIT. /6/ NOTWITHSTANDING, MS. YANKUS
CONTINUED HER PARTICIPATION BUT TOOK THE STATEMENT AS THREATENING, AND
TWO MEMBERS OF THE UNION NEGOTIATING TEAM, MS. DURKIN AND SUSAN
MCMENAMIN, THOUGHT THE TEAM WOULD BE WEAKENED IF MS. YANKUS WERE FORCED
TO LEAVE IT.
DISCUSSION AND CONCLUSIONS
AS NOTED ABOVE, RESPONDENT MOVED TO DISMISS THE COMPLAINT FOR FAILURE
TO STATE AN UNFAIR LABOR PRACTICE. THE RULES AND REGULATIONS OF THE
AUTHORITY PROVIDE THAT THE COMPLAINT SHALL INCLUDE A "CLEAR AND CONCISE
DESCRIPTION OF THE ACTS WHICH ARE CLAIMED TO CONSTITUTE UNFAIR LABOR
PRACTICES". 5 CFR 2423.12(B)(7). HOWEVER, THE RULES OF THE AUTHORITY
SHOULD BE CONSTRUED NO LESS LIBERALLY THAN THE FEDERAL RULES OF CIVIL
PROCEDURE WHICH PROVIDE THAT THOSE RULES ARE TO BE CONSTRUED "TO SECURE
THE JUST, SPEEDY, AND INEXPENSIVE DETERMINATION OF EVERY ACTION" (RULE
1) AND THAT PLEADINGS "SHALL BE SO CONSTRUED AS TO DO SUBSTANTIAL
JUSTICE" (RULE 8).
IN SUNDSTRAND CORPORATION V. STANDARD KOLLSMAN INDUS., INC., /7/ THE
DISTRICT COURT REFUSED TO ADMIT PLAINTIFF'S EVIDENCE PROVING FRAUD
BEYOND THE SPECIFIC ACTS ALLEGED IN THE COMPLAINT, DESPITE THE FACT THE
DEFENDANTS HAD NOTICE OF THE ADDITIONAL CLAIMS WHEN THE PLAINTIFF FILED
ITS RESPONSE TO DEFENDANT'S INTERROGATORIES. REVERSING THE DISTRICT
COURT, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT STATED, "PERHAPS THE
MOST STRIKING DEVELOPMENT OF MODERN PROCEDURE HAS BEEN THE RECOGNITION
THAT PLEADING IS IMPORTANT ONLY TO INFORM THE OPPOSING PARTY OF WHAT IS
CLAIMED AND THE GROUND UPON WHICH THE CLAIM RESTS." /8/ IN DECIDING THAT
THE DEFENDANTS HAD ACTUAL NOTICE, THE COURT LOOKED BEYOND THE PLEADINGS
TO THE "PRETRIAL CONDUCT AND COMMUNICATIONS OF THE PARTIES." /9/
IN THIS CASE, PARAGRAPH 6 OF THE COMPLAINT STATES:
ON OR ABOUT AUGUST 2, 1979, WHICH WAS 9 DAYS AFTER THE UNION FILED A
REPRESENTATION
PETITION WITH THE AUTHORITY, RESPONDENT, BY KENNETH E. MOFFETT, MET
WITH MARY DURKIN, FEDERAL
MEDIATION AND CONCILIATION SERVICE (HEREINAFTER FMCS) BUDGET ANALYST
AND UNION PRESIDENT, TO
DISCUSS THE CONFIDENTIALITY OF DURKIN'S AGENCY POSITION.
HOWEVER, THE AMENDED CHARGE WHICH WAS SERVED ON RESPONDENT IN MARCH
OF 1980 STATES AS A BASIS FOR A CHARGE THAT "THE PRESIDENT, MARY P.
DURKIN, WAS VERBALLY THREATENED BY DEPUTY DIRECTOR KENNETH E. MOFFETT
WHEN HE CALLED HER TO HIS OFFICE TO 'FOREWARN YOU ABOUT THE CONFIDENTIAL
NATURE OF YOUR POSITION 'REPEATEDLY." THIS WAS PREFACED BY A CHARGE THAT
OFFICIALS OF THE UNION HAVE EXPERIENCED DISCRIMINATION FOR ENGAGING IN
UNION ACTIVITIES.
WHILE IT HAS NOT BEEN CONTENDED THAT MEETING WITH AN EMPLOYEE, WHO
HAPPENS TO BE A UNION OFFICIAL, FOR THE PURPOSE OF DISCUSSING THE NATURE
OF THE EMPLOYEE'S JOB, IS AN UNFAIR LABOR PRACTICE, /10/ IT IS BEYOND
CAVIL TO CONTEND THAT A THREAT, DISCRIMINATORILY AIMED AT A UNION
OFFICIAL IS NOT PROSCRIBED BY THE STATUTE. THEREFORE, BASED ON THE
ACTUAL KNOWLEDGE RESPONDENT HAD OF THE THEORY OF THE CASE AND THE FACTS
AS ALLEGED IN THE COMPLAINT AND THE CHARGE BY THE GENERAL COUNSEL, I
DECLINE TO DISMISS THE COMPLAINT ON PROCEDURAL GROUNDS ALTHOUGH I WOULD
DO SO IF I CONSIDERED MERELY THE LANGUAGE OF THE COMPLAINT BY ITSELF.
HOWEVER, I ALSO DECLINE TO ENTERTAIN WHAT IS IN EFFECT AN ATTEMPT TO
BROADEN THE COMPLAINT BY COUNSEL FOR THE GENERAL COUNSEL WHO HAS ARGUED
ON BRIEF THAT CERTAIN COMMENTS BY MR. MOFFETT ARE VIOLATIONS OF THE
STATUTE BECAUSE THEY DISPARAGE THE UNION AND UNION AND MS. DURKIN'S
EFFORTS ON ITS BEHALF. /11/ SINCE THE OTHER CHARGES IN THE COMPLAINT
COULD CONSTITUTE UNFAIR LABOR PRACTICES UNDER APPROPRIATE CIRCUMSTANCES,
I DENY THE MOTION TO DISMISS AS TO THE REMAINING PARAGRAPHS OF THE
COMPLAINT.
AS TO THE CONVERSATION BETWEEN MS. DURKIN AND MR. MOFFETT, THE
GENERAL COUNSEL ARGUES THAT THE STATEMENT MADE TO "FOREWARN" HER ABOUT
THE CONFIDENTIALITY OF HER POSITION WAS A PRETEXT USED TO INTIMIDATE HER
IN THE DISCHARGE OF HER DUTIES. IN ADDITION, IT IS ARGUED THAT THE
TIMING OF THE STATEMENT AND THE PERCEPTION OF THE STATEMENT AS COERCIVE
IS ENOUGH TO MAKE OUT A VIOLATION OF THE STATUTE. RESPONDENT ARGUES
THAT THE STATEMENTS WERE NOT IN THEMSELVES COERCIVE, NOR WERE THE
CIRCUMSTANCES.
SECTION 7116(A)(1) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY
TO "INTERFERE WITH, RESTRAIN, OR COERCE" ANY EMPLOYEE IN THE EXERCISE OF
THAT EMPLOYEE'S RIGHTS UNDER THE STATUTE. SINCE THIS LANGUAGE CLOSELY
PARALLELS THAT OF THE NATIONAL LABOR RELATIONS ACT, 29 U.S.C. 151 ET
SEQ., AND IS INTENDED TO CONFER UPON PUBLIC SECTOR EMPLOYEES RIGHTS
SIMILAR TO THOSE ENJOYED BY EMPLOYEES IN THE PRIVATE SECTOR, CASES UNDER
THE NLRA MAY GIVE GUIDANCE TO THE STANDARD TO BE APPLIED UNDER THIS
SECTION TO MAKE OUT A VIOLATION. THAT STANDARD BY WHICH ONE MAY
DETERMINE INTERFERENCE, RESTRAINT OR COERCION, IS NOT THE SUBJECTIVE
PERCEPTIONS OF THE EMPLOYEE, NOR IS IT THE INTENT OF THE EMPLOYER.
RATHER THE TEST IS WHETHER, UNDER THE CIRCUMSTANCES OF THE CASE, THE
EMPLOYER'S CONDUCT MAY REASONABLY TEND TO COERCE OR INTIMIDATE THE
EMPLOYEE, /12/ OR, IN THE CASE OF A STATEMENT, WHETHER THE EMPLOYEE
COULD REASONABLY HAVE DRAWN A COERCIVE INFERENCE FROM THE STATEMENT.
/13/ THE EFFECT OF THE EMPLOYER'S STATEMENTS MUST BE JUDGED IN THE LIGHT
OF CIRCUMSTANCES IN WHICH WORDS, INNOCENT IN AND OF THEMSELVES, MAY BE
UNDERSTOOD AS THREATS. /14/ IN DELIMITING THE PERMISSIBLE BOUNDS OF AN
EMPLOYER'S REMARKS, THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT STATED:
THERE IS NO SANCTION IMPOSED UPON THE RIGHT OF AN EMPLOYER TO EXPRESS
HIS VIEWS ON LABOR
POLICIES OR PROBLEMS, OR TO EXPRESS HIS PREFERENCE OF ONE COMPETING
UNION OVER ANOTHER, EVEN
TO TAKE SIDES PROVIDED HE DOES NOT COERCE, RESTRAIN OR INTERFERE WITH
THE SELECTION OF A
BARGAINING REPRESENTATIVE. /15/
THE CIRCUMSTANCES SURROUNDING THE STATEMENTS MADE BY MR. MOFFETT TO
MS. DURKIN MILITATE AGAINST A FINDING OF A VIOLATION OF THE STATUTE.
HERE WAS A FORMER UNION ORGANIZER, KNOWN ON A FIRST NAME BASIS
THROUGHOUT HIS AGENCY, CONCERNED THAT AN ORGANIZING CAMPAIGN IN THAT
AGENCY MIGHT BE LEADING TO THE DISCLOSURE OF INFORMATION DETRIMENTAL TO
THE AGENCY AND ALL OF ITS EMPLOYEES. INSTEAD OF BRINGING HIS CONCERNS
TO THE UNION IN A RIGID ACROSS-THE-TABLE FASHION, HE OPTED FOR A
FRIENDLY CHAT WITH THE UNION PRESIDENT, A PERSON WHOSE FAMILY HISTORY
WAS KNOWN TO HIM.
NOTHING IN MR. MOFFETT'S HISTORY OR THE FACTS SURROUNDING THIS
MEETING INDICATES UNION ANIMUS ON HIS PART OR THAT OF THE AGENCY. THE
FACT AN UNFAIR LABOR PRACTICE CHARGE WAS THEN CURRENTLY OUTSTANDING
AGAINST THE AGENCY DOES NOT ALTER THIS CONCLUSION. THIS SINGLE CASE
ONLY INDICATES THAT A DISPUTE BETWEEN THE UNION AND RESPONDENT AROSE
EARLY IN THE ORGANIZING CAMPAIGN AND WAS SETTLED WITHOUT FINDINGS MADE
AGAINST EITHER PARTY.
THE TIMING OF THE MEETING INDICATES NOTHING UNTOWARD. ALTHOUGH MS.
DURKIN HAD BEEN AND WAS ENGAGING IN PROTECTED ACTIVITY THROUGHOUT THIS
PERIOD OF TIME, THE DISCLOSURE OF CONFIDENTIAL INFORMATION WAS TAKING
PLACE AT THE SAME TIME. RESPONDENT'S CONCERN WAS THAT THE DISCLOSURE
STOP; NOTHING INDICATES THAT RESPONDENT ATTEMPTED TO THWART THE UNION
IN ITS ORGANIZING EFFORTS, ALTHOUGH IT DID WISH TO AVOID A CONFLICT
BETWEEN THE UNION'S RIGHT TO ORGANIZE AND RESPONDENT'S EFFORTS NOT TO
JEOPARDIZE ITS NEGOTIATIONS WITH OMB, EFFORTS WHICH WOULD BENEFIT ALL OF
RESPONDENT'S EMPLOYEES (INCLUDING THOSE WHO WERE ACTIVE IN THE
ORGANIZING CAMPAIGN.
THE CRUX OF THE GENERAL COUNSEL'S POSITION IS THAT USE OF THE WORD
"FORWARN" SOMEHOW EQUATES WITH A THREAT. IN FACT, THE TWO ARE QUITE
DIFFERENT. A THREAT SEEKS TO COMPEL ACTION AND IS AN EXPRESSION OF
INTENT TO DO HARM. A WARNING, ON THE OTHER HAND, INFORMS AND CAUTIONS.
IT DOES NOT PROMISE ACTION ON THE PART OF THE SPEAKER BUT IT MAY GIVE
NOTICE OF THE CONSEQUENCES OF THE RECIPIENT'S ACTIONS. TO WARN SOMEONE
ABOUT SKATING ON THIN ICE IS NOT TO THREATEN TO PUSH THAT PERSON ONTO
THE ICE. IN THIS CASE, A MAN WITH A HISTORY OF UNION EXPERIENCE IN
ORGANIZING CAMPAIGNS FOUND THIS UNION'S ACTIVITIES TO BE SOMEWHAT
QUIXOTIC. TO PARAPHRASE CERVANTES, HE THOUGHT THAT IF HE COULD
"FOREWARN" MS. DURKIN ABOUT CONFIDENTIAL MATERIAL, IT WOULD "FOREARM"
THE UNION, ALL TO THE BENEFIT OF THE ORGANIZING CAMPAIGN AND
RESPONDENT'S NEGOTIATIONS WITH OMB AS WELL. HE SOUGHT NOT TO DISPARAGE
THE UNION BUT TO STRENGTHEN IT BY PREVENTING IT FROM BEING ATTACKED BY
ITS MEMBERS FOR PRECIPITATING A REDUCTION-IN-FORCE. AT WORSE, THESE
WERE "PERFUNCTORY REMARKS, NOT THREATENING OR INTIMIDATING IN
THEMSELVES, MADE BY AN EMPLOYER WITH NO ANTI-UNION BACKGROUND AND NOT
ASSOCIATED AS PART OF A PATTERN OR COURSE OF CONDUCT HOSTILE TO UNIONISM
. . . (WHICH) CANNOT, STANDING NAKED AND ALONE, SUPPORT A FINDING OF
VIOLATION" /16/ OF THE STATUTE. IN NO WAY DID MR. MOFFETT'S REMARKS
COMPEL OR PROHIBIT ACTION ON THE PART OF THE UNION OR MS. DURKIN. AS
SUCH THEY COULD HAVE BEEN TAKEN MERELY AS GRATUITOUS AND IGNORED. I
CONCLUDE THAT THEY DID NOT AMOUNT TO AN UNFAIR LABOR PRACTICE.
PARAGRAPH 7 OF THE COMPLAINT ALLEGES THAT IT WAS AN UNFAIR LABOR
PRACTICE FOR GENERAL COUNSEL VAUGHN TO SUGGEST THAT MS. YANKUS TAKE A
LEAVE OF ABSENCE FROM HER DUTIES AS SECRETARY-TREASURER OF THE UNION
BECAUSE HER AGENCY POSITION WAS AT ISSUE IN A CLARIFICATION OF UNIT
PETITION BEFORE THE AUTHORITY. THE AMENDED CHARGE ALLEGES THAT MS.
YANKUS WAS THREATENED WITH DISCIPLINARY ACTION IF CONFIDENTIAL MATTERS
WERE LEAKED.
AS NOTED IN THE COMPLAINT, A LEAVE OF ABSENCE WAS SUGGESTED AS AN
ALTERNATIVE OR AN OPTION TO CONTINUING IN A POSITION OF POSSIBLE
CONFLICT OF INTEREST. NO DEMAND WAS MADE, NOR WAS THERE VOICED ANY
DIRECT OR IMPLIED THREAT OF ADVERSE CONSEQUENCES TO MS. YANKUS SHOULD
THE SUGGESTION NOT BE TAKEN. AS A MATTER OF FACT, MR. VAUGHN AGREED
WITH THE UNION ATTORNEY THAT THE QUESTION OF MS. YANKUS' STATUS WAS
COMPLETELY FOR INTERNAL RESOLUTION BY THE UNION. THE GENERAL COUNSEL'S
CITATION TO UNITED STATES ARMY, CORPUS CHRISTE ARMY DEPOT, CORPUS
CHRISTE, TEXAS, 4 FLRA 80(1980) IS INAPPOSITE. IN THAT CASE MANAGEMENT
MADE IT CLEAR THAT IF UNION ACTIVITY WERE NOT CURTAILED, FUTURE
OPPORTUNITIES WOULD BE LIMITED FOR THOSE EMPLOYEES ACTIVE IN THE UNION.
SINCE NOTHING IN MR. VAUGHN'S SUGGESTION, MADE UNDER THE CIRCUMSTANCES
FOUND IN THIS CASE, CAN BE REASONABLY INTERPRETED AS TENDING TO COERCE A
RESIGNATION OR AS SUGGESTING PERSONAL RISK FOR CONTINUED PARTICIPATION,
I CONCLUDE THAT IT DID NOT VIOLATE THE STATUTE.
SIMILARLY, MR. VAUGHN'S STATEMENT THAT ANY EMPLOYEE RESPONSIBLE FOR
LEAKING CONFIDENTIAL INFORMATION WOULD BE DEALT WITH ACCORDINGLY, DOES
NOT VIOLATE THE STATUTE. THIS STATEMENT WAS NOT DIRECTED SOLELY AT MS.
YANKUS AND IS MERELY CONSISTENT WITH MANAGEMENT'S CONCERN, EXPRESSED BY
MR. VAUGHN AND MR. MOFFETT TO VARIOUS EMPLOYEES BOTH WITHIN AND WITHOUT
THE BARGAINING UNIT, THAT CONFIDENTIAL INFORMATION WAS BEING LEAKED, TO
THE DETRIMENT OF THE AGENCY AND ITS EMPLOYEES. THE TIMING OF THE
STATEMENT DOES NOT ALTER ITS NATURE. WHILE IT WAS MADE AT A PREELECTION
MEETING, IT WAS ALSO MADE AT A TIME WHEN RESPONDENT HAD A LEGITIMATE
RIGHT TO BE CONCERNED ABOUT THE PUBLICATION OF CONFIDENTIAL MATERIAL.
THERE IS NO EVIDENCE UPON WHICH I COULD CONCLUDE THAT MANAGEMENT'S
CONCERN WITH DISCIPLINARY ACTION FOR DISCLOSING INFORMATION WAS MERELY A
PRETEXT FOR SINGLING OUT UNION MEMBERS FOR PUNITIVE TREATMENT. UNDER
THE CIRCUMSTANCES MANAGEMENT IS WITHIN ITS RIGHTS TO DISCIPLINE ANY
EMPLOYEE WHO DOES IN FACT DISCLOSE CONFIDENTIAL INFORMATION. /17/ SINCE
THE STATEMENT DOES NOT VIOLATE THE STATUTE, ITS AFFECT ON OTHER MEMBERS
OF THE UNION IS OF NO MOMENT.
PARAGRAPH 8 OF THE COMPLAINT ALLEGES A VIOLATION OF SECTION
7116(A)(1) OF THE STATUTE BY THE STATEMENT TO MS. YANKUS BY ASSISTANT
GENERAL COUNSEL NANCY BROFF THAT IF MS. YANKUS' POSITION WERE
SUBSEQUENTLY EXCLUDED THROUGH CLARIFICATION OF UNIT PROCEEDINGS,
OFFICIAL TIME GRANTED TO HER IN THE NEGOTIATION OF A
COLLECTIVE-BARGAINING AGREEMENT WOULD BE CHARGED AGAINST HER ANNUAL
LEAVE. THE GENERAL COUNSEL ARGUES THAT THE TIMING AND HARSHNESS OF THE
THREATENED PENALTY IS INDICATIVE THAT THE STATEMENT HAD A RESTRAINING
AND INTIMIDATING EFFECT. RESPONDENT COUNTERS THAT MS. BROFF WAS MERELY
MAKING A FACTUAL STATEMENT AND WAS NOT ATTEMPTING TO TELL MS. YANKUS
WHAT TO DO.
MS. BROFF BELIEVED HER STATEMENT TO BE ONE OF FACT AND ANY HARSHNESS
OF REPAYING ANY OFFICIAL TIME GRANTED WAS MERELY ONE OF THE FACTS SHE
BELIEVED WAS TRUE. /18/ I NEED NOT AND DO NOT REACH THE QUESTION
WHETHER THE STATEMENT WAS AN ACCURATE EXPOSTULATION OF THE LAW. I DO
NOTE, HOWEVER, THAT THE STATEMENT WAS MADE IN THE CONTEXT MERELY OF
INFORMING MS. YANKUS OF THE POTENTIAL CONSEQUENCES OF HER CONTINUED
REPRESENTATION AND NOT IN THE CONTEXT OF ATTEMPTING TO HAVE HER REMOVED
OR REPLACED AS A BARGAINING REPRESENTATIVE. MOREOVER, THE STATEMENT WAS
NOT DIRECTED AT MS. YANKUS BECAUSE SHE DID OR SAID SOMETHING IN THE
EXERCISE OF PROTECTED ACTIVITY; THE STATEMENT WAS PROMPTED BY THE
UNIQUE SITUATION IN WHICH SHE APPEARED AT THE MEETING, THAT OF A UNION
OFFICIAL WHOSE POSITION AS A MEMBER OF THE BARGAINING UNIT WAS UNDER
LEGAL CHALLENGE.
SPEECH IS NOT COERCIVE IF IT DOES NOT CONVEY A THREAT OF ECONOMIC
REPRISAL TAKEN SOLELY ON THE EMPLOYER'S VOLITION /19/ AND IF IT HAS SOME
BASIS IN OBJECTIVE FACT. /20/ HERE THE REFERENCE TO LOSS OF ANNUAL
LEAVE WAS SEEN AS A POSSIBLE CONSEQUENCE SOLELY OF AUTHORITY DECISION
AND LEGAL COMPULSION. RESPONDENT DOES NOT CLAIM NOR DID IT IMPLY AT THE
MEETING THAT IT MIGHT HAVE DISCRETION TO DENY OFFICIAL TIME IF MS.
YANKUS' POSITION WERE DETERMINED TO BE CONFIDENTIAL. SINCE MS. YANKUS
INDICATED THAT SHE WAS AWARE OF THE POSSIBILITY THAT SHE MIGHT HAVE TO
PAY BACK ANY OFFICIAL TIME GRANTED, THERE IS NO QUESTION WHETHER THE
STATEMENT HAS ANY BASIS IN OBJECTIVE FACT. I CONCLUDE THAT THE
STATEMENT CONTAINED NO THREAT OF REPRISAL, WAS NOT MADE UNDER COERCIVE
CIRCUMSTANCE AND, THEREFORE, DID NOT VIOLATE THE STATUTE.
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 CFR 2423.29(C).
ORDER
ORDERED, THAT THE COMPLAINT IN CASE NO. 3-CA-818 IS DISMISSED.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 11, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ WHILE THE JUDGE CITED AND RELIED UPON PRIVATE SECTOR PRECEDENT IN
REACHING HIS FINDINGS AND CONCLUSIONS HEREIN, THE AUTHORITY NOTES THAT
THE PRECEDENT ESTABLISHED UNDER THE STATUTE IS TO THE SAME EFFECT. SEE,
E.G., DEPARTMENT OF THE ARMY, FORT BRAGG SCHOOLS, 3 FLRA 363(1980);
GENERAL SERVICES ADMINISTRATION, NATIONAL CAPITAL REGION, 4 FLRA NO.
69(1980).
/2/ AT THE HEARING THE COMPLAINT WAS AMENDED TO REFLECT THE CURRENT
NAME OF THE UNION.
/3/ THE QUESTION OF UNION ENTITLEMENT TO THE USE OF CONFERENCE ROOMS
ACTUALLY BECAME THE SUBJECT OF AN UNFAIR LABOR PRACTICE CHARGE FILED
AGAINST RESPONDENT EARLY IN THE CAMPAIGN AND SETTLED WITH A NONADMISSION
CLAUSE AND WITHOUT HEARING.
/4/ NONE OF THE EVIDENCE GIVEN BY MS. DURKIN REGARDING THIS MEETING
REFERRED TO THESE REMARKS BY MR. MOFFETT. HOWEVER, I FULLY CREDIT MR.
MOFFETT'S TESTIMONY BASED ON HIS DEMEANOR, THE CONSISTENCY OF HIS OTHER
TESTIMONY, AND THE FACT THAT HIS TESTIMONY STANDS UNCHALLENGED.
/5/ WHILE IT IS APPARENT THAT MR. VAUGHN DID NOT TAKE IT UPON HIMSELF
TO SUGGEST OTHER ALTERNATIVES, IT IS CLEAR BY HIS TESTIMONY THAT HE WAS
CAREFUL NOT TO STATE THAT A LEAVE OF ABSENCE WAS THE ONLY ALTERNATIVE.
ALTHOUGH BOTH MS. DURKIN AND MS. YANKUS PERCEIVED MR. VAUGHN'S
REMARKS AS THREATENING BECAUSE THEY BELIEVED HE WAS LOOKING STRAIGHT AT
MS. YANKUS WHILE HE WAS MAKING HIS STATEMENTS (THERE IS NO EVIDENCE OF
THE RELATIVE SEATING POSITIONS OF THOSE INVOLVED), I DECLINE TO MAKE
THAT FINDING BECAUSE I CREDIT MR. VAUGHN'S TESTIMONY THAT WHILE HE MAY
HAVE LOOKED AT MS. YANKUS DURING THE COURSE OF HIS REMARKS, HE WAS
ADDRESSING THE MEETING AS A WHOLE. ALTHOUGH THE TESTIMONY OF MS. DURKIN
AND MS. YANKUS IS CONSISTENT THROUGHOUT, AS WILL BE SHOWN FURTHER ON IN
THE TEXT, IT IS CONSISTENT EVEN WHEN IT IS IN ERROR. I FIND NOTHING
INSIDIOUS IN THIS; ONLY THAT I PERCEIVE THAT IN THEIR HONEST EFFORT TO
PREPARE THEIR TESTIMONY, WHERE ONE'S MEMORY WAS INACCURATE AND THE
OTHER'S UNSURE, THE INACCURACY WAS TAKEN FOR FACT AND REINFORCED BY
CONSISTENT TESTIMONY. OF COURSE COUNSEL FOR THE GENERAL COUNSEL COULD
HAVE CALLED TO THE WITNESS STAND ONE OF THE AUTHORITY AGENTS WHO WAS IN
ATTENDANCE AT THE MEETING. ONE CAN ONLY PRESUME THAT THE FAILURE TO
CALL AN "UNBIASED" WITNESS INDICATES THAT THAT WITNESS WOULD NOT
CORROBORATE THE TESTIMONY OF THE WITNESSES FOR THE CHARGING PARTY.
/6/ THE FINDINGS WITH RESPECT TO THE DECEMBER 14, 1979, MEETING ARE
BASED ON THE TESTIMONY OF MS. ROBIN BROOKS, A MEMBER OF RESPONDENT'S
NEGOTIATION TEAM AT THE TIME. MS. BROOKS TOOK NOTES INTENDED TO COVER
THE SALIENT POINTS RAISED AT THE BARGAINING SESSIONS. THOSE NOTES
SERVED TO REFRESH HER RECOLLECTION AND BOLSTER HER OTHERWISE CREDIBLE
TESTIMONY. SINCE SHE NO LONGER WORKS FOR RESPONDENT, SHE COULD HAVE NO
MOTIVE TO BE OTHER THAN CANDID. HER NOTES AND TESTIMONY SHOW THAT THE
GENERAL ISSUE OF USE OF OFFICIAL TIME FOR BARGAINING SESSIONS HAD BEEN
PREVIOUSLY DISCUSSED ON DECEMBER 7, 1979. THAT GENERAL SUBJECT AND THE
SPECIFIC ISSUE OF OFFICIAL TIME FOR MS. YANKUS WERE CONFUSED BY MS.
DURKIN AND MS. YANKUS IN THEIR TESTIMONY. THEIR MEMORIES OF THE TWO
DECEMBER SESSIONS SHOW THAT THEY HAVE MERGED SOME OF THE FACTS FROM ONE
MEETING INTO THE OTHER. FOR EXAMPLE, THEY BOTH INSIST THAT ATTORNEY
YOUNGDAHL WAS PRESENT AT THE SESSION ON DECEMBER 14. HOWEVER, MS.
BROOKS' NOTES SHOW THAT HE WAS PRESENT ON THE 7TH AND NOT THE 14TH.
COUNSEL FOR THE GENERAL COUNSEL AND FOR THE UNION DID NOT OFFER TO
INTRODUCE THE UNION NOTES OF THESE MEETINGS.
/7/ 488 F.2D 807(7TH CIR. 1973).
/8/ ID. AT 811
/9/ ID. (CITATIONS OMITTED).
/10/ ON BRIEF, THE GENERAL COUNSEL DID NOT SPEAK TO THE MOTION TO
DISMISS.
/11/ AT THE HEARING, COUNSEL FOR THE GENERAL COUNSEL MOVED TO CONFORM
THE PLEADINGS TO THE PROOF. IN PART, IT WAS TO AVOID THE TYPE OF POST
HOC "SHOTGUN" APPROACH TO ISSUE FRAMING TAKEN ON BRIEF BY THE GENERAL
COUNSEL THAT THIS MOTION WAS DENIED. WHILE AMENDMENTS SHOULD ORDINARILY
BE ALLOWED UNDER A POLICY OF CONSTRUING THE RULES LIBERALLY, THEY SHOULD
NOT BE ENTERTAINED WHERE THE OPPOSING PARTY WOULD BE TAKEN BY SURPRISE
OR PUT TO GREAT DISADVANTAGE OR UNDUE DIFFICULTY. SEE E.G. GAINES W.
HARRISON & SONS, INC. V. J. I CASE CO., 180 F.SUPP. 243, 247(D.S.C.
1960), AND DEAKYNE V. COMMISSIONERS OF LEWES, 416 F.2D 190,300(3RD CIR.
1969).
/12/ RUSSELL STOVER CANDIES, INC. V. N.L.R.B., 551 F.2D 204(8TH CIR.
1977).
/13/ STEIN SEAL CO. V. N.L.R.B., 605 F.2D 703,706(3RD CIR. 1979).
/14/ N.L.R.B. V. CRYSTAL TIRE COMPANY, 410 F.2D 916,918(8TH CIR.
1969).
/15/ LAKE CITY FOUNDRY COMPANY V. N.L.R.B., 432 F.2D 1162,1181(1970).
/16/ SAX V. N.L.R.B., 171 F.2D 769,772-3(7TH CIR. 1948).
/17/ SEE E.G., BELL FEDERAL SAVINGS AND LOAN ASSOCIATION OF BELLEVUE,
214 NLRB 75(1974).
/18/ HER TESTIMONY WAS THAT SHE WAS PASSING ON AN OPINION RECEIVED
FROM THE OFFICE OF PERSONNEL MANAGEMENT. THERE IS CONFLICTING TESTIMONY
AS TO WHETHER SHE COMMUNICATED THAT FACT TO THOSE IN ATTENDANCE AT THE
MEETING. RESOLUTION OF THAT CONFLICT IS NOT NECESSARY TO THIS DECISION.
/19/ SINGER CO. V. N.L.R.B., 480 F.2D 269(19TH CIR. 1973).
/20/ N.L.R.B. V. LENKURT ELECTRIC COMPANY, 438 F.2D 1102, 1106(9TH
CIR. 1971).