[ v14 p450 ]
14:0450(73)CA
The decision of the Authority follows:
14 FLRA No. 73
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-35
Respondents
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO
Charging Party
Case No. 8-CO-36
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondents had not engaged
in certain unfair labor practices alleged in the complaint, and
recommending that the complaint be dismissed in its entirety.
Thereafter, the General Counsel and the Charging Party filed exceptions
to the Judge's decision. /1A/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (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 recommended Order.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 8-CO-36 be, and
it hereby is, dismissed.
Issued, Washington, D.C., May 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CO-36
Ronald Steensland, Esquire
For the Respondent
Deborah S. Wagner, Esquire
Joseph Swerdzewski, Esquire
For the General Counsel
Mike McDermott, Int'l Representative
For the Charging Party
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.Section 7101,
et seq., and the Rules and Regulations issued thereunder, Fed. Reg.,
Vol. 45, No. 12, January 17, 1980, 5 C.F.R.Chapter XIV, Part 2411, et
seq.
Pursuant to a charge filed on February 5, 1981, by the Service
Employees International Union, AFL-CIO (hereinafter called the SEIU or
Charging Party), a Complaint and Notice of Hearing was issued on July
23, 1981, by the Regional Director for Regional VIII, Federal Labor
Relations Authority, Los Angeles, California. The Complaint alleges
that the National Association of Government Employees and its Local
R12-35 (hereinafter called the Respondents or NAGE and NAGE Local
R12-35), violated Section 7116(b)(1) of the Federal Service
Labor-Management Relations Statute (hereinafter called the Statute or
Act), by virtue of their actions in issuing a letter on or about
December 29, 1980, wherein their membership was encouraged to destroy
any showing of interest petitions then being circulated by
representatives of SEIU.
A hearing was held in the captioned matter on October 20, 1981, in
San Diego, California. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The parties submitted briefs on
December 4, 1981, which have been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact, /1/
conclusions and recommendations.
Findings of Fact
NAGE Local R12-35 has represented a unit of employees at the Navy
Public Works Center in San Diego, California, since 1969 and been a
party to collective bargaining agreements with such Activity.
In December of 1980, a time when the current NAGE Local R12-35
collective bargaining agreement with the Activity was due to expire, the
SEIU commenced an organizational campaign designed to collect a number
of unit employees' signatures for purposes of attaining a sufficient
showing of interest to support a petition for an election challenging
NAGE Local R12-35's status as exclusive representative. In furtherance
of its objective, on or about December 11, 1980, SEIU held an open
meeting which was chaired by Mr. Mike McDermott, a west coast labor
organizer for the SEIU. In addition to Mr. McDermott and Mr. Jim Hawes,
another representative for the SEIU, the meeting was attended by some 11
or 12 Navy Public Work Center employees. Among the Navy Public Work
Center employees were Mr. Walter Woodworth and Mr. James McVey, former
president and vice-president, respectively, of Local R12-35, and Mr.
Albert Abbruzzese, the current president of R12-35. During the course
of the meeting Mr. McDermott answered a number of questions from the
attendees, including Mr. Abbruzzese, concerning the operation of the
SEIU. Following the meeting Mr. Abbruzzese, submitted a complete report
thereon to Mr. John Carpenter, a National Vice-President of NAGE, whose
office is located in Burbank, California.
With regard to Mr. Carpenter's relationship to Local R12-35 in his
capacity as a National Vice-President of NAGE, the record indicates that
Mr. Carpenter's office generally provides negotiators for contract
negotiations, attorneys for arbitration, MSPB or workmens' compensation
hearings, assistance in writing grievances and general advice on matters
which concern Local R12-35. The aforementioned services are provided
not only to Local R12-35 but to all SEIU locals within the NAGE Burbank
Office's jurisdiction.
On or about December 29, 1980, Mr. Carpenter sent a letter, on NAGE
stationery, to approximately 500 members of Local R12-35 informing them
that they might be approached by "some smooth talking suede-shoes
salesmen to sign a petition to bring in another union". After making
some derogatory remarks about the people who might be soliciting their
signatures, the letter went on to state as follows:
If you see a petition, destroy it. Notify your officers and
stewards if you are approached by anyone with a petition.
According to Mr. Carpenter, the letter was his own idea and he did
not consult with anyone before sending it. He thinks that he probably
mentioned it to Mr. Abbruzzese before it was mailed because he was sure
that he informed Mr. Abbruzzese as to what documents were in the
envelope mailed to the 500 members of Local R12-35 on December 29, 1980.
Mr. Abbruzzese testified that he was not informed by Mr. Carpenter
about the letter until after it was sent out. Subsequent to the mailing
of the letter Mr. Abbruzzese and Mr. Carpenter had a number of
conversations concerning the letter.
Mr. Abbruzzese acknowledges that neither he nor any other Local
R12-35 official at anytime disavowed the instructions contained in Mr.
Carpenter's letter with respect to destroying SEIU petitions. Further,
according to the testimony of Mr. Abbruzzese, in response to inquiries
from the membership concerning the destruction of SEIU's petitions, he
informed the employees that if Mr. Carpenter said the destruction was
alright, it was alright with him. Mr. Abbruzzese also testified that
although he agreed with the letter from Mr. Carpenter and therefore took
no specific steps to nullify it, he left it up to the employees'
individual choices as to whether the SEIU petitions should be destroyed.
With regard to the SEIU petitions, the record indicates that
representatives of the SEIU handed out several numerically numbered
petitions to interested employees for purposes of soliciting signatures
thereon. Subsequently, upon returning to the interested employees the
SEIU was unable to retrieve all the petitions it had originally handed
out. Although, the SEIU and the General Counsel contend that the
missing petitions were destroyed pursuant to the instructions contained
in Mr. Carpenter's letter, the record is barren of any evidence
whatsoever in support of such contention. In fact both Mr. Woodworth
and Mr. McVey, who were primarily responsible for distributing the SEIU
petitions and collecting same, admitted that they had no knowledge that
the missing petitions had in fact been destroyed.
The record is also barren of any evidence indicating that the letter
played any part in any employee's individual decision to sign or not
sign the SEIU petition.
The record further indicates that the SEIU subsequently filed a
petition for an election which did not contain a sufficient showing of
interest to support an election.
Discussion and Conclusions
The General Counsel and the Charging Party take the position that the
December 29, 1980, letter interfered with, restrained, or coerced the
employees in the exercise of their rights protected by the Statute in
violation of Section 7116(b)(1). They further contend that both NAGE
and NAGE Local R12-35 are responsible for such violation since Mr.
Carpenter was acting as agent for NAGE Local R12-35 when he wrote the
letter instructing the employees to destroy the SEIU petitions.
Respondent on the other hand, denies the agency relationship and takes
the position, that in any event, the letter did not interfere with,
restrain or coerce the unit employees in the exercise of their rights
accorded by the Statute.
Contrary to the contention of the General Counsel and the Charging
Party, I cannot find that the December 29, 1980, letter, standing alone,
was violative of Section 7116(b)(1) of the Statute.
Section 7102 of the Statute gives employees the right to form, join,
or assist any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal. To the extent that a
union interferes with, restrains or coerces employees in the exercise of
the rights accorded by Section 7102, such union action is violative of
Section 7116(b) of the Statute.
In view of the foregoing, it is obvious that in order to establish a
violation of Section 7116(b)(1) it must be shown that the December 29,
1980, letter in some way coerced, restrained or interfered with the
employees right to support the SEIU petition efforts. In the absence of
any evidence, whatsoever, that the instruction to destroy the SEIU
petitions was accompanied by threats or acts of intimidation, direct or
implied, it cannot be said that the instruction, standing alone, did in
fact coerce and restrain the employees in connection with their
Statutory right to support the SEIU petition for an election.
Similarly, in the absence of any evidence that some of the petitions
were in fact destroyed, I question how the instruction could be said to
have "interfered with" the employees' right to support or sign the SEIU
petition. The only possible argument in support of such a finding would
have to be predicated on the premise that the instruction some how
demonstrated to unit employees the futility of affixing their respective
names to petitions which, due to the instruction, stood a good chance of
being destroyed. However, in view of the fact that the record indicates
that the petitions were generally in control of specified individuals
and not left unattended in lunch rooms and other places frequented by
unit employees, and the absence of any evidence that any employee was
dissuaded from, or reluctant to, sign the petitions because of NAGE's
letter, I find the futility argument to be without merit. /2/
Additionally, I cannot accept the argument that the fact that the Union
possesses the ability to retaliate against a dissident unit employee in
and of itself makes the December 20th letter a per se violation of
Section 7116(b)(1), since such a conclusion would be equally applicable
to any statement uttered by a union which is designed to retain the
support of the unit employees.
Accordingly, although I do not condone Respondent's action in
advocating the destruction of the SEIU petition, I am constrained to
recommend that the Complaint be dismissed in its entirety.
In view of the above conclusions I find it unnecessary to determine
whether or not Mr. Carpenter was acting as an agent of NAGE Local R12-35
when he mailed out the December 29th letter advocating destruction of
the SEIU petitions.
ORDER
It is hereby ordered that the complaint in Case No. 8-CO-36, be, and
hereby is dismissed in its entirety.
BURTON S. STERNBURG
Administrative Law Judge
Dated: December 16, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1A/ The Respondents' opposition to the General Counsel's exceptions
was untimely filed and therefore was not considered by the Authority.
/1/ Other than NAGE Local R12-35's responsibility for the December
29, letter, the facts for the most part are not in dispute.
/2/ In order to reach a contrary conclusion, a finding must be made
that the words "interfere with" appearing in Section 7116(b)(1)
encompass the acts of "advocating" or "encouraging" interference with
the employees statutory rights. However, a review of the legislative
history offers no support for such a finding.