Navy Public Works Center and Louis T. Faison (Authority decision, June 4, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of this transferred unfair labor practice case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

Louis Faison solicited signatures at a Navy Public Works Center parking lot for an election to replace the incumbent union. A Navy official challenged his right to solicit there, but Faison continued collecting signatures and was not ordered to leave. The judge found that the encounter had not been shown to interfere with, restrain, or coerce his protected activity. The Authority adopted the judge's dismissal of the unfair labor practice complaint. No exceptions were filed.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1).
• Outcome: The judge's dismissal of the unfair labor practice complaint was upheld.
• Key point: The record did not show that the Navy official's remarks impeded Faison's solicitation.

Full text (FLRA public release)

[ v01 p378 ]

01:0378(47)CA

The decision of the Authority follows:

1 FLRA No. 47

NAVY PUBLIC WORKS CENTER
U.S.NAVY
Respondent

and

LOUIS T. FAISON
Complainant

Assistant Secretary
Case No. 22-8568(CA)

DECISION AND ORDER

ON FEBRUARY 26, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICE ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY. NO 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 TRANSITION RULES AND
REGULATIONS (44 F.R. 7). 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 TRANSITION
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, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 22-8568(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., JUNE 4, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

APPEARANCES:

WALTER B. BAGBY

LABOR RELATIONS ADVISOR

BUILDING A-67

NAVAL STATION

NORFOLK, VIRGINIA 23511

FOR THE RESPONDENT

LOUIS T. FAISON

944 TIFTON STREET

NORFOLK, VIRGINIA 23513

COMPLAINANT PRO SE

RONALD B. ZEDD, ESQ., OBSERVING

BEFORE: ROBERT J. FELDMAN

ADMINISTRATIVE LAW JUDGE

CASE NO. 22-8568(CA)

DECISION AND ORDER

THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
OF RECORD WAS HELD PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 11491
AS AMENDED (HEREINAFTER REFERRED TO AS "ORDER") AND 29 C.F.R. PART 203.
IN THE LIGHT OF REORGANIZATION PLAN NO.2 OF 1978 AND TITLE VII OF THE
CIVIL SERVICE REFORM ACT OF 1978, THE DECISION AND ORDER HEREIN ARE
RENDERED PURSUANT TO TRANSITION RULES AND REGULATIONS PROMULGATED IN
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, PP. 5-8.

STATEMENT OF THE CASE

THE COMPLAINT AS FILED ALLEGED VIOLATIONS OF SECTION 19(A)(1), (2) &
(3) OF THE ORDER BASED UPON THE CHARGE THAT RESPONDENT'S MASTER OF
TRANSPORTATION HAD ORDERED COMPLAINANT TO LEAVE THE PARKING LOT ON
RESPONDENT'S PREMISES WHERE COMPLAINANT WAS CIRCULATING PETITIONS ON
BEHALF OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) FOR AN
ELECTION TO CHALLENGE THE RECOGNITION OF THE INCUMBENT UNION, TIDEWATER
VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL (THE COUNCIL). PRIOR TO
ISSUING THE NOTICE OF HEARING, THE REGIONAL ADMINISTRATOR DISMISSED THE
19(A)(2) & (3) PORTIONS OF THE COMPLAINT ON THE GROUND THAT THE
COMPLAINANT HAD FAILED TO ESTABLISH A REASONABLE BASIS FOR THE ALLEGED
VIOLATIONS OF THOSE SECTIONS. IN HIS LETTER OF PARTIAL DISMISSAL, THE
REGIONAL ADMINISTRATOR STATED THAT NO EVIDENCE HAD BEEN ADDUCED, NOR HAD
THE INDEPENDENT INVESTIGATION DISCLOSED, ANY BASIS TO CONCLUDE THAT
RESPONDENT'S ACTIONS WERE MOTIVATED IN PART OR IN THEIR ENTIRETY TO
ASSIST, CONTROL OR DOMINATE A LABOR ORGANIZATION. IT DOES NOT APPEAR
THAT ANY APPEAL WAS TAKEN FROM THE PARTIAL DISMISSAL.

IN VIEW OF THE ABOVE, THE SOLE ISSUE TO BE DETERMINED IS WHETHER
RESPONDENT INTERFERED WITH, RESTRAINED, OR COERCED AN EMPLOYEE IN THE
EXERCISE OF A RIGHT ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1).

FINDINGS OF FACT

ON AUGUST 17, 1977, THE COUNCIL WAS THE RECOGNIZED EXCLUSIVE
BARGAINING AGENT FOR THE EMPLOYEE UNIT IN QUESTION. ON THE MORNING OF
THAT DAY, SHORTLY BEFORE THE COMMENCEMENT OF THE DAY SHIFT, COMPLAINANT,
WHO WAS THEN A NATIONAL REPRESENTATIVE OF NAGE AS WELL AS AN EMPLOYEE OF
RESPONDENT, WAS CIRCULATING PETITIONS IN A PARKING LOT ON RESPONDENT'S
PREMISES. THE PETITIONS AUTHORIZED NAGE TO REPRESENT THE SIGNATORIES AS
BARGAINING AGENT AND WERE DESIGNED TO CONSTITUTE A SHOWING OF INTEREST
THAT MIGHT WARRANT AN ELECTION.

COMPLAINANT WORKED THE AFTERNOON SHIFT, SO HE WAS CIRCULATING THE
PETITIONS ON HIS OWN TIME. MOREOVER, HE HAD BEEN EXPRESSLY AUTHORIZED
BY RESPONDENT'S CIVILIAN PERSONNEL DIVISION TO CIRCULATE THE PETITIONS
AT THE TIME AND PLACE IN QUESTION. WHILE SO ENGAGED, HIS RIGHT TO BE
THERE WAS QUESTIONED BY MR. E. J. IYOTT, THEN RESPONDENT'S MASTER OF
TRANSPORTATION, WHO WAS ACCOMPANIED BY AN OFFICIAL OF THE COUNCIL. MR.
IYOTT TOLD COMPLAINANT THAT HE HAD NO RIGHT TO SOLICIT SIGNATURES ON
SUCH PETITIONS IN THE PARKING LOT AT THAT TIME. HE ALSO SPOKE TO ONE
DAVIS, WHO WAS ASSISTING COMPLAINANT IN GETTING SIGNATURES.
NEVERTHELESS, COMPLAINANT CONTINUED TO SOLICIT SIGNATURES UNTIL A FEW
MINUTES BEFORE THE START OF THE SHIFT. HE WAS NOT EVICTED FROM THE
PARKING LOT, NOR WAS HE ORDERED TO LEAVE IT.

CONCLUSIONS OF LAW

IT IS QUESTIONABLE WHETHER IN THE ABSENCE OF A SHOWING THAT THE
EMPLOYEES INVOLVED WERE INACCESSIBLE TO REASONABLE ATTEMPTS BY NAGE TO
COMMUNICATE WITH THEM OUTSIDE OF RESPONDENT'S PREMISES, THE GRANTING OF
ACCESS TO NAGE (WHICH AT THAT POINT DID NOT ENJOY "EQUIVALENT STATUS")
WOULD NOT BE VIOLATIVE OF SECTION 19(A)(3) OF THE ORDER. SEE DEPARTMENT
OF THE NAVY, NAVY COMMISSARY STORE COMPLEX, OAKLAND, A/SLMR 654(1976);
COMMISSARY, FORT MEADE, DEPARTMENT OF THE ARMY, A/SLMR 793(1977). IN
HIS CAPACITY AS A REPRESENTATIVE OF NAGE, COMPLAINANT WAS THUS NOT
EXERCISING A RIGHT ASSURED BY THE ORDER.

RESPONDENT RECOGNIZES THAT AS AN EMPLOYEE, COMPLAINANT HAD A RIGHT
UNDER THE ORDER TO ENGAGE IN SUCH UNION ACTIVITIES. SEE CHARLESTON
NAVAL SHIPYARD, A/SLMR 1 (1970). COMPLAINANT'S OWN TESTIMONY, HOWEVER,
SHOWS AT BEST ONLY A BRIEF INTERRUPTION OF HIS ACTIVITY. IT HAS NOT
BEEN SHOWN THAT COMPLAINANT WAS ACTUALLY PREVENTED FROM OBTAINING A
SINGLE SIGNATURE, NOR THAT HIS SOLICITATION WAS RESTRICTED OR OTHERWISE
AFFECTED BY MR. IYOTT'S REMARKS. CONSEQUENTLY, COMPLAINANT HAS FAILED
TO ESTABLISH BY A FAIR PREPONDERANCE OF THE EVIDENCE THAT HE WAS
INTERFERED WITH, RESTRAINED OR COERCED IN THE EXERCISE OF HIS RIGHTS
UNDER THE ORDER IN VIOLATION OF SECTION 19(A)(1).

ORDER

IN VIEW OF THE FOREGOING, IT IS ORDERED THAT THE COMPLAINT HEREIN BE
AND THE SAME HEREBY IS DISMISSED IN ITS ENTIRETY.

ROBERT J. FELDMAN

ADMINISTRATIVE LAW JUDGE

DATED: FEBRUARY 26, 1979

WASHINGTON, D.C.

RJF:LE

/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 EXECUTIVE ORDER 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.