[ v05 p311 ]
05:0311(42)CA
The decision of the Authority follows:
5 FLRA No. 42
NAVY RESALE SYSTEM FIELD
SUPPORT OFFICE COMMISSARY
STORE GROUP
Respondent
and
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R4-45
Charging Party
Case No. 3-CA-493
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 AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IS CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THEREFORE, 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 (5 U.S.C. 7101-7135), 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, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE NAVY RESALE SYSTEM FIELD SUPPORT OFFICE
COMMISSARY STORE GROUP SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY MAKING
THREATS OF REPRISAL BECAUSE THEY SOUGHT REPRESENTATION BY LOCAL R4-45,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) POST AT ITS NAVY RESALE SYSTEM FIELD SUPPORT OFFICE COMMISSARY
STORE GROUP COPIES OF THE ATTACHED NOTICE, MARKED "APPENDIX," ON FORMS
TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY AN APPROPRIATE OFFICIAL OF RESPONDENT, AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. SUCH OFFICIAL SHALL TAKE
REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, 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., MARCH 19, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX 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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR STATUTORY RIGHTS BY THREATENING THEM WITH REPRISAL
BECAUSE THEY SEEK REPRESENTATION BY LOCAL R4-45, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(AGENCY OR ACTIVITY)
DATED
BY
(SIGNATURE) (TITLE)
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III,
WHOSE ADDRESS IS: 1133 15TH STREET, NW., ROOM 300, WASHINGTON, D.C.,
20005, AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
SUSAN SHINKMAN, ESQUIRE &
BRUCE D. ROSENSTEIN, ESQUIRE
FOR THE GENERAL COUNSEL
WALTER B. BAGBY, ESQUIRE
FOR THE RESPONDENT
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 30, 1980, BY THE
REGIONAL DIRECTOR, REGION 3, FEDERAL LABOR RELATIONS AUTHORITY. THE
COMPLAINT ALLEGED THAT RESPONDENT UNLAWFULLY INTERROGATED AND
THREATENED
EMPLOYEE WILLIAM TATEM CONCERNING HIS EFFORTS TO SEEK THE ASSISTANCE OF
THE UNION.
A HEARING WAS HELD ON JUNE 19, 1980, IN NORFOLK, VIRGINIA. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE WITNESSES
AND TO INTRODUCE EVIDENCE. UPON THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
RESPONDENT OPERATES A COMMISSARY STORE AT ITS NAVAL AIR STATION IN
OCEANA, VIRGINIA. LIEUTENANT WILLIAM RUSSELL IS THE COMMISSARY STORE
OFFICER, SUPERVISING OVER 90 EMPLOYEES. WILLIAM TATEM IS A MEATCUTTER
AT THE OCEANA FACILITY.
ON JULY 17, 1979 TATEM WAS INJURED AT WORK, AND WAS THEREAFTER ABSENT
FOR ABOUT THREE WEEKS. HE SOUGHT ADVANCED SICK LEAVE (AND/OR
COMPENSATION) WITHOUT IMMEDIATE SUCCESS. HE VISITED THE OFFICE SEVERAL
TIMES AND SPOKE TO LT. RUSSELL ABOUT THE STATUS OF HIS REQUEST. WHETHER
BECAUSE OF HIS OWN FAILURE TO MAKE TIMELY SUBMISSION OF THE NECESSARY
PAPERS, RUSSELL'S FAILURE TO FORWARD THEM EXPEDITIOUSLY, OR DELAYS IN
THE PAYROLL UNIT, TATEM HAD NOT BEEN GRANTED SICK LEAVE WHEN HE RECEIVED
HIS CHECK ON AUGUST 30. HE THEN WENT TO RUSSELL'S OFFICE TO COMPLAIN,
AND WAS APPARENTLY GIVEN THE NAME AND ADDRESS OF A PAYROLL UNIT EMPLOYEE
HE SHOULD SEE. HE THEN CALLED UNION PRESIDENT SINGLETON AT NORFOLK
NAVAL BASE, WHO CALLED RUSSELL'S SUPERIOR, CAPTAIN MURRAY. SINGLETON
REPORTED BACK THAT MURRAY SAID THE LEAVE REQUEST HAD BEEN APPROVED AND
THAT TATEM SHOULD SPEAK TO RUSSELL'S ASSISTANT, CHIEF PETTY OFFICER
WHITE. TATEM THEN WENT TO RUSSELL'S OFFICE, WHERE WHITE CONFIRMED THE
APPROVAL, SAID IT SHOULD HAVE BEEN REFLECTED IN HIS PAYCHECK, AND LEFT
THE OFFICE. RUSSELL IN SOME ANGER AND FRUSTRATION, THEN SAID, IN
SUBSTANCE:
WHY, WHEN YOU HAVE PROBLEMS, DO YOU GO TO SINGLETON ALL THE TIME?
THINGS WOULD GO A LOT
SMOOTHER IF YOU WOULD COME TO ME INSTEAD OF HIM. I RUN THE
COMMISSARY, NOT SINGLETON. /1/
CONCLUSION
EXCEPT FOR THE STATEMENT REPORTED BY SNIPES, THERE IS NO EVIDENCE
THAT LT. RUSSELL WAS HOSTILE TO THE UNION AS SUCH. THERE IS EVIDENCE,
IN FACT, THAT HE DEALT REGULARLY WITH THE STEWARD FOR THE COMMISSARY. I
THEREFORE REJECT THE NOTION THAT HE SOUGHT TO INDUCE EMPLOYEES TO BYPASS
THEIR COLLECTIVE BARGAINING REPRESENTATIVE AND DEAL DIRECTLY WITH HIM.
RATHER, I CONCLUDE THAT RUSSELL REACTED AGAINST PROBLEMS BEING TAKEN TO
UNION PRESIDENT SINGLETON, AND HENCE TO HIS SUPERIOR, CAPTAIN MURRAY.
AS A NAVAL OFFICER, HE WAS CLEARLY ANGERED AND EMBARRASSED BY HIS
FAILURE TO KEEP WHAT HE REGARDED TO BE RELATIVELY SMALL MATTERS FROM THE
CAPTAIN, AT LEAST UNTIL EVERY EFFORT HAD BEEN MADE TO SOLVE THEM AT HIS
LEVEL. HIS REMARKS TO STITH MAKE CLEAR THAT HIS CONCERN WAS THAT
SINGLETON DID NOT COME TO HIM FIRST, BUT INSTEAD CONTACTED THE CAPTAIN.
HIS RESPECT FOR THE CHAIN-OF-COMMAND CONCEPT AND HIS DETERMINATION TO
SHIELD HIS SUPERIOR MOTIVATED HIS STATEMENT. HOWEVER, HE EXPRESSED
HIMSELF IN A WAY WHICH CLEARLY VIOLATED SECTION 7116(A)(1).
LT RUSSELL COULD HAVE DISCUSSED HIS LEGITIMATE CONCERNS WITH THE
UNION. CONTRACTS PROVIDE FOR THE ORDERLY ELEVATION OF FORMAL
GRIEVANCES, AND UNDERSTANDINGS CAN BE REACHED FOR THE ORDERLY HANDLING
OF INFORMAL GRIEVANCES. A REQUEST THAT SINGLETON ATTEMPT TO IRON OUT
COMMISSARY PROBLEMS WITH RUSSELL BEFORE INVOLVING THE CAPTAIN, MIGHT
HAVE AVOIDED ALL OF THIS. INSTEAD, RUSSELL SPOKE TO TATEM, REMINDING
HIM ANGRILY THAT HE WAS THE BOSS AND THAT THINGS WOULD GO MORE SMOOTHLY
IF PROBLEMS WERE BROUGHT TO HIM AND SINGLETON WAS LEFT OUT OF SUCH
MATTERS. IT IS OBVIOUS THAT A SUBORDINATE WOULD ATTACH OMINOUS
OVERTONES TO SUCH A STATEMENT, AND WOULD THINK TWICE ABOUT EXERCISING
HIS RIGHT TO SEEK SINGLETON'S ASSISTANCE IN THE RESOLUTION OF AN
EMPLOYMENT PROBLEM. IT FOLLOWS THAT RUSSELL'S STATEMENT WAS COERCIVE OF
THE STATUTORY RIGHT OF EMPLOYEE TO REQUEST THEIR UNION'S REPRESENTATION.
I FURTHER CONCLUDE THAT RUSSELL'S QUESTION CONCERNING WHY TATEM WENT TO
SINGLETON WAS RHETORICAL, A SIMPLE STATEMENT THAT TATEM SHOULD NOT HAVE
DONE SO. AS IT WAS NOT AN INQUIRY IT COULD NOT CONSTITUTE UNLAWFUL
INTERROGATION VIOLATIVE OF SECTION 7116(A)(1).
HAVING CONCLUDED THAT RESPONDENT VIOLATED SECTION 7116(A)(1), I
RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY ENTER THE FOLLOWING
ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, AND SECTION 2423.29 OF THE RULES AND
REGULATIONS, IT IS HEREBY ORDERED THAT THE NAVAL RESALE SYSTEM FIELD
SUPPORT OFFICE COMMISSARY STORE GROUP, NORFOLK, VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY MAKING
THREATS OF REPRISAL
BECAUSE THEY SOUGHT REPRESENTATION BY LOCAL R4-45, NATIONAL
ASSOCIATION OF GOVERNMENT
EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHT ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES
OF THE STATUTE:
(A) POST AT ITS NAVAL RESALE SYSTEMS FIELD SUPPORT OFFICE COMMISSARY
STORE GROUP COPIES OF
THE ATTACHED NOTICE, MARKED "APPENDIX", ON FORMS TO BE FURNISHED BY
THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY AN APPROPRIATE
OFFICIAL OF RESPONDENT, AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES
TO EMPLOYEES ARE
CUSTOMARILY POSTED. SUCH OFFICIAL SHALL TAKE REASONABLE STEPS TO
ENSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING, WITHIN
30 DAYS OF THIS ORDER,
AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 10, 1980
WASHINGTON, D.C.
APPENDIX 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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR STATUTORY RIGHTS BY THREATENING THEM WITH REPRISAL
BECAUSE THEY SEEK REPRESENTATION BY LOCAL R4-45, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
(AGENCY OR ACTIVITY)
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III,
WHOSE ADDRESS IS: 1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C.,
20005.
--------------- FOOTNOTES$ ---------------
/1/ RUSSELL TESTIFIED THAT TATEM APPROACHED HIM SAYING THAT HE WISHED
TO SEE CAPTAIN MURRAY, AND THAT HE TRIED TO DISSUADE HIM ON EMINENTLY
SENSIBLE CHAIN-OF-COMMAND GROUNDS. I CREDIT TATEM'S VERSION, WHICH WAS
STRONGLY REINFORCED BY SEVERAL OTHER CREDIBLE WITNESSES TO HIGHLY
COMPARABLE CONDUCT ON RUSSELL'S PART. THUS, TREASURE STITH, WHEN
UNSUCCESSFUL IN HER EFFORT TO HAVE HER HOURS ADJUSTED, CONTACTED UNION
PRESIDENT SINGLETON UP AT THE NORFOLK "COMPLEX" (HEADQUARTERS). SHE WAS
THEN CALLED INTO RUSSELL'S OFFICE, WHERE HE ANGRILY TOLD HER THAT SHE
HAD NO RIGHT TO GO TO SINGLETON, THAT SINGLETON RUNS TO THE COMPLEX
(I.E. THE CAPTAIN), AND DOESN'T EVEN COME TO HIM FIRST. SIMILARLY,
WILLIAM SNIPES, AN INJURED MEATCUTTER, GREW IMPATIENT ABOUT HIS
APPLICATION FOR COMPENSATION AND CONTACTED SINGLETON, WHO SAID HE WOULD
CALL THE COMPLEX. LATER THAT DAY SNIPES WAS CALLED INTO RUSSELL'S
OFFICE, AND WAS TOLD THAT THE COMPLEX HAD CALLED ABOUT THE COMPENSATION
MATTER. RUSSELL THEN SAID THAT HE WAS TIRED OF PEOPLE RUNNING TO THE
UNION AND SINGLETON, THAT SINGLETON COULDN'T DO ANYTHING, AND THAT HE,
RUSSELL, WAS THE ONE WHO GETS THE BALL ROLLING. THESE 1980 INCIDENTS
WERE NOT ALLEGED AS VIOLATIONS, BUT WERE OFFERED TO BUTTRESS TATEM'S
CREDIBILITY AND TO SHOW A COURSE OF CONSISTENT CONDUCT ON RUSSELL'S PART
IN HIGHLY SIMILAR SITUATIONS.