[ v09 p253 ]
09:0253(36)CA
The decision of the Authority follows:
9 FLRA No. 36
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL
BORDER PATROL COUNCIL
Charging Party/Intervenor
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2455
Charging Party
and
INTERNATIONAL BROTHERHOOD OF
POLICE OFFICERS
Petitioner
Case Nos. 6-CA-48
6-CA-49
63-CA-565
63-RO-6
DECISION AND ORDER AND DIRECTION OF SECOND ELECTION
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED CONSOLIDATED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS IN CASE
NOS. 6-CA-48, 6-CA-49 AND 63-CA-565, AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED JUDGE'S DECISION. THE JUDGE ALSO RECOMMENDED THAT VARIOUS
OBJECTIONS TO THE CONDUCT OF THE ELECTION IN CASE NO. 63-RO-6 BE
SUSTAINED AND THAT OTHER OBJECTIONS BE DISMISSED BUT, IN ACCORDANCE WITH
SECTION 2422.20(G((1) OF THE AUTHORITY'S RULES AND REGULATIONS, MADE NO
RECOMMENDATION WITH REGARD TO ANY REMEDIAL ACTION TO BE TAKEN CONCERNING
THE OBJECTIONS. THEREAFTER, THE RESPONDENT AND THE PETITIONER FILED
EXCEPTIONS TO THE JUDGE'S DECISION, THE GENERAL COUNSEL AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO FILED OPPOSITIONS TO SUCH
EXCEPTIONS, AND THE LATTER ADDITIONALLY FILED CROSS-EXCEPTIONS.
PURSUANT TO SECTIONS 2422.20 AND 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTIONS 7111 AND 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 ENTIRE RECORD IN THIS CASE, THE AUTHORITY ADOPTS
THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS MODIFIED
BELOW.
THE FACTS ARE SET FORTH IN DETAIL IN THE JUDGE'S DECISION BUT WILL BE
SUMMARIZED HEREIN. THE CHARGING PARTY, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL BORDER PATROL COUNCIL
(HEREINAFTER REFERRED TO AS AFGE), REPRESENTS A NATIONWIDE UNIT OF
APPROXIMATELY 2300 EMPLOYEES OF THE RESPONDENT. THE PETITIONER,
INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS (IBPO), TIMELY FILED A
PETITION SEEKING TO REPRESENT THIS UNIT OF EMPLOYEES (CASE NO. 3-RO-6).
AN ELECTION WAS CONDUCTED IN WHICH THE PETITIONER WON A MAJORITY OF THE
VALID VOTES CAST. HOWEVER, NO CERTIFICATION WAS ISSUED DUE TO THE
TIMELY FILING OF OBJECTIONS BY THE INCUMBENT AFGE. ADDITIONALLY, DURING
THE PERIOD BETWEEN THE FILING OF THE REPRESENTATION PETITION AND THE
HOLDING OF THE ELECTION, WHEN THERE EXISTED A QUESTION CONCERNING
REPRESENTATION, AFGE FILED THE UNFAIR LABOR PRACTICE CHARGES IN CASE
NOS. 6-CA-48 AND 6-CA-49 BASED UPON ACTIONS ALLEGEDLY TAKEN BY THE
RESPONDENT DURING THAT PERIOD. THE CHARGE IN CASE NO. 63-CA-565 WAS
FILED SUBSEQUENT TO THE ELECTION BUT SIMILARLY WAS BASED ON CONDUCT
WHICH WAS ALLEGED TO HAVE OCCURRED DURING THE PERIOD OF THE PENDING
QUESTION CONCERNING REPRESENTATION.
AS A PRELIMINARY MATTER, THE RESPONDENT SEEMINGLY ARGUES THAT IT WAS
PREJUDICED BY THE FACT THAT THE ELECTION WAS CONDUCTED BY THE REGIONAL
DIRECTOR OF THE AUTHORITY'S 3RD REGION NOTWITHSTANDING THE EXISTENCE OF
THE UNFAIR LABOR PRACTICE CHARGES FILED IN THE 6TH REGION. IN THE VIEW
OF THE RESPONDENT, THERE WAS AN IMPROPER FAILURE TO INVOKE THE "BLOCKING
RULE" WHEREBY, IN CERTAIN CIRCUMSTANCES, UNFAIR LABOR PRACTICE CHARGES
MAY SERVE TO DELAY THE HOLDING OF AN ELECTION UNTIL THE CHARGES ARE
RESOLVED. HOWEVER, WHETHER UNFAIR LABOR PRACTICE CHARGES WILL BLOCK AN
ELECTION IS A DISCRETIONARY MATTER WITHIN THE PURVIEW OF THE REGIONAL
DIRECTOR, AND THE AUTHORITY FINDS THAT THE REGIONAL DIRECTOR OF THE 3RD
REGION DID NOT ABUSE HIS DISCRETION, IN THE CIRCUMSTANCES OF THIS CASE,
BY PROCEEDING WITH THE ELECTION. /1/ IT FOLLOWS THAT, CONTRARY TO
ANOTHER ALLEGATION OF THE RESPONDENT, THE REGIONAL DIRECTOR OF THE 6TH
REGION DID NOT ABUSE HIS DISCRETION BY ADJUDICATING THE UNFAIR LABOR
PRACTICE COMPLAINTS AND THE OBJECTIONS TO THE ELECTION CONCURRENTLY.
THE UNFAIR LABOR PRACTICE COMPLAINTS
CASE NO. 6-CA-48
THE JUDGE CONCLUDED THAT CHANGES MADE BY THE RESPONDENT REGARDING
TRAFFIC CHECKPOINTS AND UNIFORMS CONSTITUTED A FAILURE TO ADHERE TO
PREVIOUSLY EXISTING CONDITIONS OF EMPLOYMENT DURING THE ELECTION PERIOD
IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. IN AGREEMENT
WITH THE JUDGE'S CONCLUSION, THE AUTHORITY FINDS THAT THE RESPONDENT WAS
SO OBLIGATED TO MAINTAIN EXISTING CONDITIONS OF EMPLOYMENT DURING THE
PENDENCY OF THE QUESTION CONCERNING REPRESENTATION. THEREFORE, IN THE
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S UNILATERAL CHANGE IN SUCH
CONDITIONS OF EMPLOYMENT DURING THE ELECTION PERIOD CONSTITUTED A
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. /2/
CASE NO. 6-CA-49
THE JUDGE FOUND THAT A PAST PRACTICE OF PERMITTING MORNING COFFEE
BREAKS BY UNIT EMPLOYEES AT THE LAREDO STATION HAD BEEN ESTABLISHED AS A
CONDITION OF EMPLOYMENT AND THAT THE RESPONDENT'S UNILATERAL TERMINATION
OF SUCH PRACTICE WITHOUT PRIOR NOTICE TO THE INCUMBENT UNION CONSTITUTED
A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. IN AGREEMENT
WITH THE JUDGE'S CONCLUSION, THE AUTHORITY FINDS THAT THE RESPONDENT'S
UNILATERAL TERMINATION OF A PAST PRACTICE DURING THE ELECTION PERIOD
VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. /3/
SPECIFICALLY, WITH RESPECT TO THE RESPONDENT'S ASSERTION THAT, IN ANY
EVENT, THE PRACTICE OF MORNING COFFEE BREAKS IS CONTRARY TO LAW, THE
AUTHORITY FINDS THAT THE COMPTROLLER GENERAL DECISIONS RELIED UPON BY
THE RESPONDENT ARE NOT IN POINT. THUS, FOR EXAMPLE, IN COMPTROLLER
GENERAL DECISION B-190011 (DEC. 30, 1977), THE ISSUES PRESENTED AND
DECIDED IN THE NEGATIVE WERE WHETHER AGENCY MANAGEMENT HAD THE AUTHORITY
TO GRANT EMPLOYEES SHORT PERIODS OF COMPENSABLE TIME CONTIGUOUS TO LUNCH
BREAKS; WHETHER AGENCY MANAGEMENT COULD ALLOW EMPLOYEES TO FOREGO A
MORNING OR AFTERNOON REST PERIOD AND ADD THAT TIME TO THE LUNCH BREAK;
AND WHETHER AN EMPLOYEE COULD FOREGO AN AFTERNOON REST PERIOD AND ADD
THAT TIME TO LEAVE SCHEDULED DURING THE EMPLOYEE'S WORK HOURS SO THAT
THE EMPLOYEE COULD DEPART HIS DUTY STATION EARLIER. IN THE INSTANT
CASE, NO QUESTION WAS RAISED AS TO WHETHER EMPLOYEES WERE ATTEMPTING TO
TAKE THEIR BREAKS CONTIGUOUS EITHER TO THEIR LUNCH PERIODS OR TO
SCHEDULED LEAVE. RATHER, THE RECORD INDICATES THAT THE MORNING COFFEE
BREAK WAS TAKEN BY EMPLOYEES AFTER THEY HAD STARTED THEIR NORMAL WORK
DAY. AS NOTED IN THE ABOVE-CITED COMPTROLLER GENERAL DECISION, THE
GRANTING OF SUCH A REST PERIOD IS WITHIN THE DISCRETIONARY AUTHORITY OF
DEPARTMENT HEADS UNDER 5 U.S.C. 301. /4/ IN THE CIRCUMSTANCES HEREIN,
THAT DISCRETION WAS EXERCISED BY THE RESPONDENT IN PERMITTING MORNING
COFFEE BREAKS AND, AS HELD ABOVE, THE UNILATERAL TERMINATION OF SUCH
PRACTICE WAS VIOLATIVE OF THE STATUTE.
CASE NO. 63-CA-565
THE JUDGE FOUND THAT THERE EXISTED A PAST PRACTICE IN THE
RESPONDENT'S NORTHERN REGION OF PERMITTING UNIT EMPLOYEES ASSIGNED TO
EXTENDED OPERATIONAL DETAILS OUTSIDE THE NORTHERN REGION THE OPTION OF
USING THEIR PRIVATELY OWNED VEHICLES. HE FOUND THAT THE RESPONDENT'S
DECISION TO REQUIRE EMPLOYEES TO TRAVEL BY AIR TO A DETAIL IN
CALIFORNIA, AND TO DISALLOW EMPLOYEES THE USE OF THEIR PRIVATELY OWNED
VEHICLES, IMPACTED ON THE WORKING CONDITIONS OF THE DETAILED EMPLOYEES
AND CONCLUDED THAT THE RESPONDENT'S DECISION IN THIS REGARD CONSTITUTED
A UNILATERAL CHANGE IN AN ESTABLISHED PAST PRACTICE IN VIOLATION OF THE
STATUTE.
AS INDICATED BY THE JUDGE, METHODS OF TRANSPORTATION AUTHORIZED FOR
OFFICIAL TRAVEL ARE GOVERNED BY THE FEDERAL TRAVEL REGULATIONS. SUBJECT
TO VARIOUS CRITERIA CONTAINED THEREIN, THE AUTHORITY FINDS THAT
DECISIONS AS TO THE APPROPRIATE MODE OF TRANSPORTATION ARE DISCRETIONARY
ON THE PART OF AGENCY MANAGEMENT, AND THAT THE RESPONDENT HEREIN HAD
EXERCISED THIS DISCRETION BY PERMITTING THE USE OF PRIVATELY OWNED
VEHICLES IN PREVIOUS DETAILS. ACCORDINGLY, IN AGREEMENT WITH THE
CONCLUSION REACHED BY THE JUDGE, THE AUTHORITY FINDS THAT THE
RESPONDENT'S UNILATERAL CHANGE OF THIS PAST PRACTICE DURING THE ELECTION
PERIOD CONSTITUTES A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
STATUTE.
THE OBJECTIONS TO THE ELECTION
THE REPRESENTATION ELECTION CONDUCTED IN THE NATIONWIDE UNIT OF THE
RESPONDENT'S EMPLOYEES RESULTED IN THE FOLLOWING OUTCOME: OF 1313 VALID
VOTES COUNTED, 779 VOTES WERE CAST FOR THE PETITIONER IBPO, 476 VOTES
WERE CAST FOR THE INCUMBENT AFGE, AND 58 VOTES WERE CAST AGAINST
EXCLUSIVE RECOGNITION. AS PREVIOUSLY MENTIONED, CERTIFICATION OF IBPO
WAS WITHHELD PENDING RESOLUTION OF THE OBJECTIONS TO THE ELECTION FILED
BY AFGE.
FOURTEEN SEPARATE OBJECTIONS WERE FILED TO THE ELECTION. OF THESE,
FOUR RELATED TO INCIDENTS WHICH OCCURRED PRIOR TO THE FILING OF IBPO'S
REPRESENTATION PETITION. IN AGREEMENT WITH THE JUDGE, THE AUTHORITY
FINDS THAT THESE FOUR OBJECTIONS MUST BE DISMISSED SINCE CONDUCT
OCCURRING PRIOR TO THE FILING OF A REPRESENTATION PETITION SEEKING AN
ELECTION CANNOT BE SAID TO HAVE INTERFERED WITH THE ELECTION HELD
PURSUANT TO THAT PETITION SO AS TO CONSTITUTE GROUNDS FOR SETTING THAT
ELECTION ASIDE.
OF THE REMAINING OBJECTIONS, ONE WAS WITHDRAWN BY AFGE AT THE HEARING
AND ONE WAS DISMISSED BY THE JUDGE SINCE IT HAD NOT BEEN RAISED PRIOR TO
THE HEARING. THE OBJECTIONS WHICH WERE ADDRESSED ON THEIR MERITS ARE AS
FOLLOWS:
UNILATERAL CHANGE IN LOCAL AGREEMENT, UNILATERAL TERMINATION OF
COFFEE BREAK PRACTICE, UNILATERAL CHANGE IN PAST PRACTICE CONCERNING USE
OF PRIVATELY OWNED VEHICLES.
THE CONDUCT ALLEGED TO HAVE VIOLATED SECTION 7116(A)(1) AND (5) OF
THE STATUTE IN CASE NOS. 6-CA-48, 6-CA-49 AND 63-CA-565, DISCUSSED
SUPRA, ALSO FORMED THE BASIS OF THREE SEPARATE OBJECTIONS TO THE
ELECTION. THE JUDGE FOUND THAT THE RESPONDENT'S UNILATERAL CHANGE IN
THE TERMS OF A LOCAL AGREEMENT AT THE LAREDO STATION AND ITS UNILATERAL
TERMINATION OF PAST PRACTICES REGARDING COFFEE BREAKS AND USE OF
PRIVATELY OWNED VEHICLES DURING THE ELECTION PERIOD COULD REASONABLY
HAVE HAD A SIGNIFICANT IMPACT OR INFLUENCE ON THE FREE CHOICE OF VOTERS
AND THERFORE IMPROPERLY AFFECTED THE RESULTS OF THE ELECTION.
ACCORDINGLY, HE RECOMMENDED THAT THESE OBJECTIONS BE SUSTAINED.
THE ACTS AND CONDUCT OF AGENCY MANAGEMENT DURING AN ELECTION
CAMPAIGN, EVEN WHERE THEY ARE NOT VIOLATIVE OF THE UNFAIR LABOR PRACTICE
PROVISIONS OF SECTION 7116(A) OF THE STATUTE, MAY NONETHELESS CONSTITUTE
OBJECTIONABLE CONDUCT REQUIRING THE ELECTION TO BE SET ASIDE IF SUCH
CONDUCT INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE THEREIN. WHILE
THE AUTHORITY RECOGNIZES THAT IT IS OFTEN DIFFICULT TO ASSESS HOW
PERVASIVE THE IMPACT OF AN AGENCY'S ACTIONS MIGHT BE ON VOTERS, THE
STANDARD FOR DETERMING WHETHER CONDUCT IS OF AN OBJECTIONABLE NATURE IS
ITS POTENTIAL FOR INTERFERING WITH THE FREE CHOICE OF THE VOTERS. IN
THIS CONNECTION, THE AUTHORITY HAS PREVIOUSLY HELD IN DEPARTMENT OF THE
AIR FORCE, AIR FORCE PLANT REPRESENTATIVE OFFICE, DETACHMENT 27, FORT
WORTH, TEXAS, 5 FLRA NO. 62 (1981), THAT STATEMENTS CONTAINED IN AN
EMPLOYER NEWSLETTER POSTED AND DISTRIBUTED TO EMPLOYEES SEVERAL DAYS
PRIOR TO A REPRESENTATION ELECTION VIOLATED THE REQUIREMENTS OF
MANAGEMENT NEUTRALITY DURING AN ELECTION CAMPAIGN, "INTERFERED WITH THE
EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION AND THEREFORE REQUIRED THE
ELECTION TO BE SET ASIDE." IN THE INSTANT CASE, AND IN AGREEMENT WITH
THE JUDGE'S CONCLUSION, THE AUTHORITY SIMILARLY FINDS THAT THE
RESPONDENT'S ACTIONS IN UNILATERALLY CHANGING THE TERMS OF AN EXISTING
AGREEMENT AND UNILATERALLY TERMINATING PAST PRACTICES REGARDING COFFEE
BREAKS AND USE OF PRIVATELY OWNED VEHICLES DURING THE ELECTION PERIOD
INTERFERED WITH THE FREE CHOICE OF EMPLOYEES IN THE ELECTION.
ACCORDINGLY, THE AUTHORITY SHALL SUSTAIN THESE OBJECTIONS.
IBPO USE OF LOCKED MANAGEMENT BULLETIN BOARD SPACE
THE JUDGE FOUND THAT AFGE, AS THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE, HAD NEGOTIATED THE RIGHT TO USE HALF OF A LOCKED
BULLETIN BOARD FOR POSTING VARIOUS NOTICES, AND THAT THE RESPONDENT USED
THE OTHER HALF. DURING THE ELECTION PERIOD, THE RESPONDENT PERMITTED
IBPO TO USE PART OF MANAGEMENT'S HALF OF THE LOCKED BULLETIN BOARD. AT
THE SAME TIME, MANAGEMENT CONTINUED TO POST MATERIAL ON THE SIDE OF THE
BULLETIN BOARD. THE JUDGE FOUND THAT WHEN THE RESPONDENT PERMITTED IBPO
TO USE PART OF MANAGEMENT'S HALF OF THE LOCKED BULLETIN BOARD, THE
RESPONDENT UNFAIRLY FAVORED IBPO SINCE THIS COULD REASONABLY HAVE BEEN
VIEWED BY EMPLOYEES AS ASSISTANCE TO AND SUPPORT OF IBPO. THUS, THE
JUDGE CONCLUDED THAT THIS ACTION CONSTITUTED IMPROPER INTERFERENCE WITH
THE EMPLOYEES' FREE CHOICE IN THE ELECTION. WE AGREE WITH THE JUDGE AND
SHALL SUSTAIN THIS OBJECTION. /5/
INSTRUCTOR STATEMENTS IN SUPPORT OF IBPO
THIS OBJECTION IS BASED UPON STATEMENTS PURPORTEDLY MADE BY AN
INSTRUCTOR AT THE BORDER PATROL ACADEMY TO UNIT EMPLOYEES, WHICH FAVORED
IBPO OVER AFGE. THE JUDGE FOUND THAT THESE STATEMENTS, TO THE EFFECT
THAT IBPO WOULD PROVIDE LEGAL REPRESENTATION TO UNIT EMPLOYEES MORE
EXPEDITIOUSLY THAN WOULD AFGE, THAT IBPO WAS WORKING TO GET A HIGHER
SALARY FOR BORDER PATROL AGENTS, AND THAT AGENTS SHOULD HAVE A UNION
CONSISTING SOLELY OF POLICE OFFICERS, WENT BEYOND THE SCOPE OF
PERMISSIBLE STATEMENTS UNDER SECTION 7116(E) OF THE STATUTE /6/ AND
INTERFERED WITH THE EMPLOYEES' FREEDOM OF CHOICE. IN THIS CONNECTION,
HE NOTED THAT WHILE THE INSTRUCTOR MAY NOT BE A SUPERVISOR OR MANAGEMENT
OFFICIAL, HE IS IN A UNIQUE POSITION IN THAT HE POSSESSES SUASION OVER
HIS STUDENTS AND MUST BE PARTICULARLY CAREFUL NOT TO MAKE STATEMENTS
WHICH COULD DISTORT TRUE EMPLOYEE CHOICE. THE JUDGE THEREFORE
RECOMMENDED THAT THIS OBJECTION BE SUSTAINED. THE AUTHORITY DISAGREES.
AS IT PERTAINS TO REPRESENTATION ELECTIONS, SECTION 7116(E) OF THE
STATUTE LIMITS THE TYPES OF STATEMENTS THAT MAY BE MADE BY AGENCY
MANAGEMENT DURING AN ELECTION CAMPAIGN. THUS, MANAGEMENT MAY MAKE
STATEMENTS ENCOURAGING EMPLOYEES TO VOTE IN ELECTIONS, CORRECTING THE
RECORD WHERE FALSE OF MISLEADING STATEMENTS ARE MADE, OR CONVEYING THE
GOVERNMENT'S VIEWS ON LABOR-MANAGEMENT RELATIONS. IN CONTRAST, THE
EXPRESSION OF PERSONAL VIEWS BY EMPLOYEES DURING AN ELECTION CAMPAIGN IS
PROTECTED BY SECTION 7102 OF THE STATUTE WHICH ASSURES THAT "(E)ACH
EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR
ORGANIZATION . . . FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL . . ."
IN THIS CASE, THERE IS NO EVIDENCE TO INDICATE THAT THE INSTRUCTOR
WAS EITHER A SUPERVISOR OR MANAGEMENT OFFICIAL OR THAT HE WAS ACTING AS
AN AGENT OF THE RESPONDENT WHEN HE MADE THE ALLEGED STATEMENTS. /7/
RATHER, THE INSTRUCTOR AS AN EMPLOYEE WAS ESPOUSING PERSONAL VIEWS
PROTECTED BY THE STATUTE. ACCORDINGLY, THIS OBJECTION SHALL BE
DISMISSED.
ASSAULT FORM
THIS OBJECTION STEMS FROM THE RESPONDENT'S IMPLEMENTATION OF AN
ASSAULT REPORTING FORM WHICH REQUIRED UNIT EMPLOYEES (BORDER PATROL
AGENTS) TO PROVIDE INFORMATION CONCERNING ASSAULTS COMMITTED AGAINST
THEM. THE RECORD INDICATES THAT THE RESPONDENT AND AFGE HAD MET AT
VARIOUS TIMES PRIOR TO THE FILING OF THE REPRESENTATION PETITION TO
NEGOTIATE THE CONTENTS OF THE FORM, WHICH WAS OF PARTICULAR CONCERN TO
UNIT EMPLOYEES BECAUSE OF THE POTENTIAL USES TO WHICH THE FORM COULD BE
PUT. NEGOTIATIONS CEASED AS A RESULT OF THE FILING OF IBPO'S
REPRESENTATION PETITION.
THE JUDGE DETERMINED THAT THE RESPONDENT FAILED TO MAINTAIN EXISTING
PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS
TO THE MAXIMUM EXTENT POSSIBLE WHEN IT IMPLEMENTED THE CONTROVERSIAL
ASSAULT FORM DURING THE ELECTION PERIOD. SUCH CONDUCT, HE CONCLUDED,
HAD A REASONABLY FORESEEABLE NEGATIVE EFFECT ON THE VOTERS' ATTITUDE
TOWARD AFGE AND COULD REASONABLY BE EXPECTED TO HAVE HAD A SIGNIFICANT
IMPACT OR INFLUENCE ON THE ELECTION. ACCORDINGLY, HE RECOMMENDED THAT
THIS OBJECTION BE SUSTAINED.
THE RESPONDENT ARGUED THAT THE ISSUE RAISED IN THIS OBJECTION IS RES
JUDICATA BECAUSE AFGE HAD FILED AN UNFAIR LABOR PRACTICE CHARGE
CONCERNING THE IMPLEMENTATION OF THE ASSAULT FORM WHICH WAS DISMISSED BY
THE REGIONAL DIRECTOR ON THE BASIS THAT THE RESPONDENT HAD MET ITS
BARGAINING OBLIGATION. /8/ SUCH CONTENTION MUST BE REJECTED. AS NOTED
ABOVE, THE ACTS AND CONDUCT OF AGENCY MANAGEMENT DURING AN ELECTION
CAMPAIGN WHICH DO NOT VIOLATE SECTION 7116(A) OF THE STATUTE MAY STILL
CONSTITUTE OBJECTIONABLE CONDUCT. A DETERMINATION, THERFORE, THAT THE
RESPONDENT'S CONDUCT WAS NOT VIOLATIVE OF THE UNFAIR LABOR PRACTICE
PROVISIONS OF THE STATUTE WOULD NOT NECESSARILY DISPOSE OF THE ISSUE OF
WHETHER SUCH CONDUCT REQUIRED THE ELECTION TO BE SET ASIDE. THUS, IN
THIS CASE, THE ALLEGEDLY OBJECTIONABLE CONDUCT MUST BE JUDGED AS TO
WHETHER IT TENDED TO INTERFERE WITH EMPLOYEE FREEDOM OF CHOICE.
THE AUTHORITY FINDS, IN AGREEMENT WITH THE JUDGE'S CONCLUSION, THAT
THE IMPLEMENTATION OF THE CONTROVERSIAL ASSAULT FORM DURING THE ELECTION
PERIOD INTERFERED WITH THE FREE CHOICE OF THE VOTERS. IN THIS
CONNECTION, THE RECORD REVEALS THAT THERE WAS A HISTORY OF PROTRACTED
NEGOTIATIONS BETWEEN THE RESPONDENT AND THE INCUMBENT AFGE CONCERNING
THE CONTROVERSIAL ASSAULT FORM COMMENCING AS EARLY AS 1977, AND THAT THE
RESPONDENT WAS AWARE OF THE UNIT EMPLOYEES' CONCERNS REGARDING THE
NATURE OF THE FORM. NEVERTHELESS, THE RESPONDENT CHOSE TO IMPLEMENT THE
FORM DURING THE ELECTION PERIOD WITHOUT ANY EXPLANATION AS TO WHY
IMPLEMENTATION WAS IMPERATIVE DURING THAT PERIOD OF TIME. /9/ INDEED,
AS NOTED BY THE JUDGE, THE INDIVIDUAL RESPONSIBLE FOR IMPLEMENTING THE
FORM TESTIFIED THAT THERE WAS NO SPECIFIC REASON WHY THE FORM WAS
IMPLEMENTED DURING THE ELECTION PERIOD. ACCORDINGLY, THE AUTHORITY
FINDS, IN AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT'S IMPLEMENTATION
OF THE ASSAULT FORM DURING THE ELECTION PERIOD HAD A REASONABLY
FORESEEABLE NEGATIVE EFFECT ON THE VOTERS' ATTITUDE TOWARD THE INCUMBENT
LABOR ORGANIZATION (AFGE) AND INTERFERED WITH THE FREE CHOICE OF THE
VOTERS IN THE ELECTION. THUS, THE AUTHORITY SHALL SUSTAIN THIS
OBJECTION.
GROOMING STANDARDS
THE JUDGE FOUND THAT AFGE DID NOT SUPPORT BY A PREPONDERANCE OF THE
EVIDENCE ITS POSITION THAT THE RESPONDENT HAD ESTABLISHED AND ENFORCED A
NEW GROOMING STANDARD FOR UNIT EMPLOYEES DURING THE ELECTION PERIOD.
/10/ RATHER, HE FOUND THAT THE GROOMING POLICY HAD BEEN IN EFFECT FOR
SEVERAL YEARS AND THAT THE RESPONDENT'S ENFORCEMENT ACTIONS DURING THE
ELECTION PERIOD COULD REASONABLY HAVE BEEN ASSESSED BY EMPLOYEES AS PART
OF MANAGEMENT'S CONTINUING POLICY OF ENFORCEMENT. THE AUTHORITY AGREES.
ACCORDINGLY, THIS OBJECTION SHALL BE DISMISSED.
NOTICE OF IBPO DEBATE
THE JUDGE FOUND NO PROBATIVE EVIDENCE THAT AN IBPO NOTICE POSTED ON
AN OFFICIAL ANNOUNCEMENT BOARD WAS EVER READ TO EMPLOYEES BY SUPERVISORS
OR IN ANY WAY IMPACTED ON THE FREE CHOICE OF VOTERS. HE THEREFORE
RECOMMENDED DISMISSAL OF THIS OBJECTION. THE AUTHORITY AGREES.
ACCORDINGLY, THIS OBJECTION SHALL BE DISMISSED.
THE REMEDY
HAVING FOUND THAT THE RESPONDENT ENGAGED IN UNFAIR LABOR PRACTICES
VIOLATIVE OF SECTION 7116(A)(1) AND (5) OF THE STATUTE, THE AUTHORITY
SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE
CERTAIN AFFIRMATIVE ACTION AS SET FORTH BELOW. AS A RESULT OF THE
MERITORIOUS OBJECTIONS TO THE ELECTION FILED BY AFGE, WHICH INCLUDE
CONDUCT AT A NUMBER OF LOCATIONS AND ENCOMPASS, INTER ALIA, THE UNFAIR
LABOR PRACTICES, THE AUTHORITY SHALL ORDER THAT THE ELECTION BE SET
ASIDE AND A SECOND ELECTION BE CONDUCTED. IN THIS REGARD, IN DEPARTMENT
OF THE AIR FORCE, AIR FORCE PLANT REPRESENTATIVE OFFICE, DETACHMENT 27,
FORT WORTH, TEXAS, 5 FLRA NO. 62 (1981), THE AUTHORITY DETERMINED THAT
STATEMENTS CONTAINED IN A SINGLE NEWSLETTER POSTED BY THE AGENCY AND
DISTRIBUTED TO SOME UNIT EMPLOYEES SUFFICIENTLY INTERFERED WITH THE
EMPLOYEES' FREEDOM OF CHOICE IN THE ELECTION AS TO REQUIRE THAT THE
ELECTION BE SET ASIDE. IN SO FINDING, THE AUTHORITY NOTED THAT A
CORNERSTONE OF THE STATUTE IS THAT EMPLOYEES SHOULD BE FREE TO CHOOSE OR
REJECT UNION REPRESENTATION WITHOUT COERCION AND WHILE AGENCY
MANAGEMENT
MAINTAINS A POSTURE OF NEUTRALITY. IT FOLLOWS THAT, IN THE INSTANT
CASE, WHERE AT LEAST SOME OF THE CONDUCT FOUND OBJECTIONABLE IS EVEN
MORE FLAGRANT AND VIOLATES SPECIFIC UNFAIR LABOR PRACTICE PROVISIONS OF
THE STATUTE, THE ELECTION MUST BE SET ASIDE AND THE EMPLOYEES GIVEN A
SECOND OPPORTUNITY TO EXERCISE THEIR PROTECTED RIGHTS. /11/
ORDER
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE UNITED STATES DEPARTMENT
OF JUSTICE, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING ESTABLISHED PAST PRACTICES
CONCERNING COFFEE BREAKS, OR THE USE OF PRIVATELY OWNED VEHICLES FOR
TRAVEL BY EMPLOYEES ON EXTENDED OPERATIONAL DETAILS.
(B) FAILING OR REFUSING TO ADHERE TO ESTABLISHED PERSONNEL POLICIES
AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS AT THE LAREDO
STATION.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) RESCIND THE FEBRUARY 5, 1979 ANNOUNCED CHANGE IN THE ESTABLISHED
PRACTICE OF ALLOWING BORDER PATROL AGENTS IN THE LAREDO STATION TO TAKE
COFFEE BREAKS.
(B) RESCIND THE MARCH 16, 1979 CHANGES CONCERNING TRAFFIC CHECKPOINTS
AND UNIFORMS, AND REINSTITUTE THE PREEXISTING ESTABLISHED PERSONNEL
POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
(C) REINSTITUTE THE ESTABLISHED PAST PRACTICE CONCERNING THE USE OF
PRIVATELY OWNED VEHICLES FOR TRAVEL BY EMPLOYEES ON EXTENDED OPERATIONAL
DETAILS.
(D) POST AT ALL OF ITS FACILITIES WHERE BARGAINING UNIT EMPLOYEES ARE
LOCATED COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. SUCH FORMS SHALL BE SIGNED BY
COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, AND SHALL BE
POSTED AND MAINTAINED 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.
(E) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VI, 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 FURTHER ORDERED THAT THE OBJECTIONS NOT HEREIN SUSTAINED BY THE
AUTHORITY BE, AND THEY HEREBY ARE, DISMISSED.
IT IS FURTHER ORDERED THAT, PURSUANT TO SECTIONS 2422.20(I) AND
2429.16 OF THE AUTHORITY'S RULES AND REGULATIONS AND SECTION 7105 OF THE
STATUTE, THE ELECTION CONDUCTED IN THE NATIONWIDE UNIT IN 1979, BE, AND
IT HEREBY IS, SET ASIDE AND A SECOND ELECTION BE CONDUCTED PURSUANT TO
THE DIRECTION OF SECOND ELECTION SET FORTH BELOW.
DIRECTION OF SECOND ELECTION
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT SET FORTH IN THE AGREEMENT FOR CONSENT OR DIRECTED ELECTION
IN CASE NO. 3-RO-6 APPROVED ON MARCH 27, 1979, AS SOON AS FEASIBLE, BUT
NOT EARLIER THAN SIXTY (60) DAYS FROM THE DATE OF POSTING OF THE
ATTACHED NOTICE TO ALL EMPLOYEES. THE APPROPRIATE REGIONAL DIRECTOR
SHALL SUPERVISE OR CONDUCT, AS APPROPRIATE, THE ELECTION SUBJECT TO THE
AUTHORITY'S RULES AND REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE
UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING
THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD
BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING
THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS.
INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE
SINCE THE DESIGNATED PAYROLL PER'OD AND WHO HAVE NOT BEEN REHIRED OR
REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE TO VOTE SHALL VOTE
WHETHER THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
NATIONAL BORDER PATROL COUNCIL; BY THE INTERNATIONAL BROTHERHOOD OF
POLICE OFFICERS; OR BY NEITHER.
ISSUED, WASHINGTON, D.C. JUNE 29, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
MEMORANDUM OF HENRY B. FRAZIER III, MEMBER
THE PETITIONER HAS MOVED THAT I RECUSE MYSELF ON THE GROUNDS THAT I
CANNOT RENDER AN IMPARTIAL, UNBIASED DECISION IN THIS CASE BECAUSE OF MY
PAST ASSOCIATION WITH KENNETH T. BLAYLOCK, THE NATIONAL PRESIDENT OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE). UPON CONSIDERATION
OF THE PETITIONER'S MOTION, I FIND IT HAS NO MERIT.
AS EVIDENCE OF A "CLOSE ASSOCIATION" WITH MR. BLAYLOCK, THE
PETITIONER CITES A PRESS REPORT OF TESTIMONY GIVEN BY ME IN CONNECTION
WITH SPECIAL PROCEEDINGS ORDERED BY THE COURT IN PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION V. FEDERAL LABOR RELATIONS AUTHORITY,
NO. 81-2135 (D.C. CIR., JUNE 11, 1982) TO THE EFFECT THAT I RECEIVED
TELEPHONE CALLS FROM MR. BLAYLOCK, HAD ONE PERSONAL MEETING WITH HIM,
AND IN 1979 HELD A PARTY IN MY HOME AT WHICH MR. BLAYLOCK WAS A GUEST.
THE PETITIONER HAS NOT ALLEGED ANY CONTACT WHATSOEVER BETWEEN MR.
BLAYLOCK AND ME CONCERNING THE CASE AT HAND AND I FAIL TO SEE A NEXUS OF
ANY KIND BETWEEN THE CITED INSTANCES OF MY ASSOCIATION WITH MR. BLAYLOCK
AND MY CONSIDERATION OF THIS CASE. CERTAINLY, THESE INSTANCES PRESENT
NO GROUNDS TO SUPPORT AN ALLEGATION OF PERSONAL BIAS ON MY PART IN THIS
CASE. MY CONSIDERATION OF THIS CASE IS BASED SOLELY ON THE RECORD
BEFORE THE AUTHORITY.
I DO NOT TAKE AN ALLEGATION OF BIAS SUCH AS HERE PRESENTED BY
PETITIONER LIGHTLY. AS A COROLLARY, SUCH ALLEGATIONS SHOULD NOT BE
LIGHTLY RAISED. IN ESSENCE, THE PETITIONER ARGUES THAT I SHOULD
DISQUALIFY MYSELF BECAUSE I AM ACQUAINTED WITH THE NATIONAL PRESIDENT OF
AFGE. AS A MATTER OF FACT, I AM ACQUAINTED WITH, THROUGH MY INVOLVEMENT
IN THE FEDERAL LABOR-MANAGEMENT RELATIONS PROGRAM, THE PRESIDENTS OF
MANY FEDERAL EMPLOYEE UNIONS AND MANY FEDERAL MANAGEMENT OFFICIALS AS
WELL, AS ARE THE OTHER MEMBERS OF THE AUTHORITY. THUS, IN THEIR
TESTIMONY IN THOSE SAME SPECIAL PATCO PROCEEDINGS, ONE OF MY FELLOW
MEMBERS TESTIFIED AS TO TELEPHONE CALLS AND A PERSONAL MEETING WITH MR.
BLAYLOCK AND ANOTHER TESTIFIED AS TO A TELEPHONE CALL WITH HIM. (SEE
PATCO, SUPRA AT N. 39.). AS TO THE 1979 PARTY AT MY HOME CITED BY
PETITIONER, IT WAS HELD IN HONOR OF MESSRS. HAUGHTON AND APPLEWHAITE,
NEWLY ARRIVED IN WASHINGTON. IN ATTENDANCE WERE NUMBERS OF UNION AND
MANAGEMENT OFFICIALS, INCLUDING THE NATIONAL VICE PRESIDENT OF THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES WITH WHICH THE PETITIONER
IS AFFILIATED.
IF MEMBERS OF THE AUTHORITY WERE REQUIRED TO DISQUALIFY THEMSELVES IN
A CASE BASED ON THEIR ACQUAINTANCE WITH UNION PRESIDENTS OR MANAGEMENT
REPRESENTATIVES, THEN RARELY WOULD THE AUTHORITY BE ABLE TO FUNCTION IN
ACCORDANCE WITH ITS STATUTORY MANDATE. THE PETITIONER'S MOTION, WHICH
IF GRANTED WOULD RESULT IN SUCH A SITUATION, VERGES ON THE FRIVOLOUS.
ACCORDINGLY, I HAVE DETERMINED THAT THE PETITIONER'S MOTION THAT I
RECUSE MYSELF IN THIS CASE BE AND HEREBY IS DENIED.
HENRY B. FRAZIER III, MEMBER
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 WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY ALTER OR CHANGE ESTABLISHED PAST PRACTICES
CONCERNING COFFEE BREAKS OR THE USE OF PRIVATELY OWNED VEHICLES FOR
TRAVEL BY EMPLOYEES ON EXTENDED OPERATIONAL DETAILS.
WE WILL NOT FAIL OR REFUSE, DURING THE PENDENCY OF A REPRESENTATION
MATTER, TO ADHERE TO ESTABLISHED PERSONNEL POLICIES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS AT THE LAREDO STATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE FEBRUARY 5, 1979 ANNOUNCED CHANGE IN THE
ESTABLISHED PRACTICE OF ALLOWING BORDER PATROL AGENTS IN THE LAREDO
STATION TO TAKE COFFEE BREAKS.
WE WILL RESCIND THE MARCH 16, 1979 CHANGES CONCERNING TRAFFIC
CHECKPOINTS AND UNIFORMS, AND REINSTITUTE THE PREEXISTING ESTABLISHED
PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS.
WE WILL REINSTITUTE THE ESTABLISHED PAST PRACTICE CONCERNING THE USE
OF PRIVATELY OWNED VEHICLES FOR TRAVEL BY EMPLOYEES ON EXTENDED
OPERATIONAL DETAILS.
WE WILL, DURING THE PENDENCY OF A REPRESENTATION MATTER, ADHERE TO
ESTABLISHED PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS AS SET FORTH IN THE LOCAL AGREEMENT AT THE LAREDO
STATION.
(AGENCY)
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, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 450, DOWNTOWN POST OFFICE, BRYAN AND ERVAY STREETS,
DALLAS, TEXAS 75221 AND WHOSE TELEPHONE NUMBER IS: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ IN SO CONCLUDING, THE AUTHORITY NOTES PARTICULARLY THAT AFGE, THE
CHARGING PARTY IN ALL THREE UNFAIR LABOR PRACTICE CASES, DID NOT REQUEST
THAT THE ELECTION BE POSTPONED EVEN THOUGH THE RESPONDENT WAS ALLEGED TO
HAVE VIOLATED AFGE'S RIGHTS AS THE INCUMBENT EXCLUSIVE REPRESENTATIVE OF
THE UNIT AT ISSUE BY MAKING UNILATERAL CHANGES IN ESTABLISHED CONDITIONS
OF EMPLOYMENT.
/2/ OF COURSE, MANAGEMENT'S OBLIGATION TO ADHERE TO EXISTING
CONDITIONS OF EMPLOYMENT UNTIL THE REPRESENTATION MATTER IS RESOLVED
WOULD NOT PREVENT THE RESPONDENT FROM MAKING CHANGES IN OTHERWISE
NEGOTIABLE PERSONNEL POLICIES, PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS UNDER ALL CIRCUMSTANCES, SUCH AS WHERE SUCH CHANGES WERE
REQUIRED CONSISTENT WITH THE NECESSARY FUNCTIONING OF THE AGENCY.
HOWEVER, AS NOTED BY THE JUDGE, THE RECORD FAILS TO ESTABLISH SUCH
CIRCUMSTANCES HEREIN. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE
CHANGES IMPLEMENTED REGARDING TRAFFIC CHECKPOINTS AND UNIFORMS VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS
CASE.
/3/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE REGARDING THE EXISTENCE OF THE PAST PRACTICE. THE DEMEANOR OF
WITNESSES IS A FACTOR OF CONSEQUENCE IN RESOLVING ISSUES OF CREDIBILITY,
AND THE JUDGE HAS HAD THE ADVANTAGE OF OBSERVING THE WITNESSES WHILE
THEY TESTIFIED. THE AUTHORITY WILL NOT OVERRULE A JUDGE'S RESOLUTION
WITH RESPECT TO CREDIBILITY UNLESS A CLEAR PREPONDERANCE OF ALL THE
RELEVANT EVIDENCE DEMONSTRATES SUCH RESOLUTION WAS INCORRECT. THE
AUTHORITY HAS EXAMINED THE RECORD CAREFULLY, AND FINDS NO BASIS FOR
REVERSING THE JUDGE'S CREDIBILITY FINDINGS.
/4/ 5 U.S.C. SEC. 301 PROVIDES AS FOLLOWS:
SEC. 301. DEPARTMENTAL REGULATIONS
THE HEAD OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT MAY
PRESCRIBE REGULATIONS FOR THE GOVERNMENT OF HIS DEPARTMENT, THE CONDUCT
OF ITS EMPLOYEES, THE DISTRIBUTION AND PERFORMANCE OF ITS BUSINESS, AND
THE CUSTODY, USE, AND PRESERVATION OF ITS RECORDS, PAPERS, AND PROPERTY.
THIS SECTION DOES NOT AUTHORIZE WITHHOLDING INFORMATION FROM THE PUBLIC
OR LIMITING THE AVAILABILITY OF RECORDS TO THE PUBLIC. (PUB. L. 89-554,
SEPT. 6, 1966, 80 STAT. 379.)
/5/ AS TO THE RESPONDENT'S CONTENTION THAT IT DISCLAIMED SUPPORT FOR
IBPO BY VIRTUE OF NOTICES IT POSTED REGARDING THE ACCORDING OF
EQUIVALENT STATUS TO IBPO AND ITS OBLIGATION TO MAINTAIN NEUTRALITY
DURING THE ELECTION, THE AUTHORITY FINDS THAT SUCH NOTICES WERE POSTED
LONG BEFORE IBPO WAS GRANTED THE USE OF MANAGEMENT'S SIDE OF THE LOCKED
BULLETIN BOARD, WERE VERY GENERAL IN NATURE, AND THUS DID NOT
EFFECTIVELY DISCLAIM WHAT COULD REASONABLY HAVE BEEN VIEWED BY EMPLOYEES
AS MANAGEMENT SUPPORT OF IBPO.
/6/ SECTION 7116(E) PROVIDES AS FOLLOWS:
(E) THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT, OPINION OR THE
MAKING OF ANY STATEMENT WHICH--
(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
EMPLOYEES TO EXERCISE THEIR RIGHT TO VOTE IN SUCH ELECTION,
(2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
STATEMENT MADE BY ANY PERSON, OR
(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS AND REPRESENTATION,
SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
OR PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A)
CONSTITUTE AN UNFAIR LABOR PRACTICE UNDER ANY PROVISION OF THIS CHAPTER,
OR (B) CONSTITUTE GROUNDS FOR THE SETTING ASIDE OF ANY ELECTION
CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER.
/7/ SEE DEPARTMENT OF THE AIR FORCE, AIR FORCE PLANT REPRESENTATIVE
OFFICE, DETACHMENT 27, FORT WORTH, TEXAS, 5 FLRA NO. 62 (1981), WHEREIN
THE AUTHORITY QUOTED AND DISCUSSED THE PERTINENT LEGISLATIVE HISTORY OF
SECTION 7116(E) AS SET FORTH IN THE JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE ON CONFERENCE (H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS. AT
156 (1978)) WHICH STATED, IN PART, THAT IT WAS "INTENDED TO REFLECT THE
CURRENT POLICY OF THE CIVIL SERVICE COMMISSION WHEN ADVISING AGENCIES ON
WHAT STATEMENTS THEY MAY MAKE DURING AN ELECTION. . ."
/8/ THE REGIONAL DIRECTOR'S DISMISSAL OF THE CHARGE WAS SUBSEQUENTLY
UPHELD BY THE GENERAL COUNSEL ON APPEAL. UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, CASE NO. 63-CA-459 (JULY 31, 1980).
/9/ MANAGEMENT'S RIGHT TO IMPLEMENT THE FORM, PURSUANT TO SECTION
7106 OF THE STATUTE, IS NOT AT ISSUE HERE.
/10/ SECTION 2422.20(H) OF THE AUTHORITY'S RULES AND REGULATIONS
PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SEC. 2422.20 CERTIFICATION; OBJECTIONS TO ELECTION; DETERMINATION
ON OBJECTIONS AND CHALLENGED BALLOTS.
. . . .
(H) AT A HEARING CONDUCTED PURSUANT TO PARAGRAPH (G) OF THIS SECTION
THE PARTY FILING THE OBJECTIONS SHALL HAVE THE BURDEN OF PROVING ALL
MATTERS ALLEGED IN ITS OBJECTIONS BY A PREPONDERANCE OF THE EVIDENCE . .
. .
/11/ THE PETITIONER FILED A MOTION FOR RECUSAL OF MEMBER HENRY B.
FRAZIER III. THE DISPOSITION OF THIS MOTION, ADDRESSED TO MEMBER
FRAZIER, IS CONTAINED IN MEMBER FRAZIER'S MEMORANDUM OF THIS DATE,
INFRA.