National Association of Government Employees, Federal Aviation Science and Technological Association (Respondent) and John Esposito (Charging Party)
[ v07 p140 ]
07:0140(21)CO
The decision of the Authority follows:
7 FLRA No. 21
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, FEDERAL AVIATION SCIENCE
AND TECHNOLOGICAL ASSOCIATION
Respondent
and
JOHN ESPOSITO
Charging Party
Case No. 2-CO-1
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS AMENDED,
AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S DECISION AND ORDER. THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER
THAT THE RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER UNFAIR LABOR
PRACTICES UNDER EXECUTIVE ORDER 11491, AS AMENDED, AS ALLEGED IN THE
COMPLAINT, AND RECOMMENDED THE DISMISSAL OF THAT PORTION OF THE
COMPLAINT. THEREAFTER THE GENERAL COUNSEL FILED EXCEPTIONS TO THAT
PORTION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER
RECOMMENDING DISMISSAL OF PORTIONS OF THE COMPLAINT.
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 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) 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 DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE EXCEPTIONS OF THE GENERAL COUNSEL, THE AUTHORITY HEREBY
ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS AS MODIFIED HEREIN. /1/
ORDER /2/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, FEDERAL AVIATION SCIENCE
AND TECHNOLOGICAL ASSOCIATION SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING JOHN ESPOSITO, OR ANY OTHER EMPLOYEE, THAT IT WILL
NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE EMPLOYEE UNLESS HE
DISCONTINUES TO CEASES HIS ACTIVITIES ON BEHALF OF THE PROFESSIONAL
AIRWAYS SYSTEMS SPECIALISTS (PASS), OR ANY OTHER LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT PLACES WHERE NOTICES TO MEMBERS AND TO EMPLOYEES OF FEDERAL
AVIATION ADMINISTRATION, AIRWAY FACILITIES, JOHN F. KENNEDY
INTERNATIONAL AIRPORT SECTOR ARE CUSTOMARILY POSTED, INCLUDING
FACILITIES PROVIDED BY THE ACTIVITY TO THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO
BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE SIGNED BY THE PRESIDENT OF THE FEDERAL AVIATION
SCIENCE AND TECHNOLOGICAL ASSOCIATION, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER. REASONABLE STEPS
SHALL BE TAKEN BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION TO INSURE 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 II, 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 HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT FOUND
NOT TO BE VIOLATIVE OF EXECUTIVE ORDER 11491, AS AMENDED, BE, AND IT
HEREBY IS DISMISSED.
ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT THREATEN JOHN ESPOSITO, OR ANY OTHER EMPLOYEE, THAT WE
WILL NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE EMPLOYEE UNLESS
HE DISCONTINUES OR CEASES HIS ACTIVITIES ON BEHALF OF THE PROFESSIONAL
AIRWAYS SYSTEMS SPECIALISTS (PASS), OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
. . . (LABOR ORGANIZATION)
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 MEMBERS OR OTHER EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
REGION II WHOSE ADDRESS IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, N.Y.
10007, AND WHOSE TELEPHONE NUMBER IS: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
EDWARD J. GILDEA, ESQUIRE
FOR THE RESPONDENT
JAMES E. PETRUCCI, ESQUIRE
FOR THE GENERAL COUNSEL
RONI N. SCHNITZER, ESQUIRE
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN THE ABOVE CAPTIONED CASE
ON MAY 16, 1980 AT NEW YORK, NY PURSUANT TO A COMPLAINT AND NOTICE OF
HEARING ISSUED ON FEBRUARY 26, 1980 BY THE REGIONAL DIRECTOR FOR THE
FEDERAL LABOR RELATIONS AUTHORITY, NEW YORK, NY REGION.
THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREIN
CALLED THE ORDER). IT IS BASED ON AN AMENDMENT CHARGE FILED ON OCTOBER
31, 1979 BY JOHN ESPOSITO, AN INDIVIDUAL, AGAINST NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL
ASSOCIATION (HEREIN CALLED RESPONDENT OR FASTA).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTION
19(B)(1) OF THE ORDER BY THE FOLLOWING ACTS AND CONDUCT: (1) ON
NOVEMBER 2, 1978 THREATENING ESPOSITO THAT IT WOULD DROP HIS PENDING
GRIEVANCES UNLESS HE CEASED HIS ACTIVITIES ON BEHALF OF ANOTHER LABOR
ORGANIZATION; (2) ON NOVEMBER 30, 1978 WITHDRAWING ITS REQUEST TO
ARBITRATE ESPOSITO'S PENDING GRIEVANCES, AND CEASING TO PROCESS SAID
GRIEVANCES, BECAUSE ESPOSITO ENGAGED IN ACTIVITIES ON BEHALF OF ANOTHER
LABOR ORGANIZATION. BASED ON THE FOREGOING, IT WAS ALLEGED THAT
RESPONDENT INTERFERED WITH, RESTRAINED OR COERCED ITS EMPLOYEES UNDER
THE ORDER.
AN ANSWER DATED MARCH 24, 1980 WAS FILED BY RESPONDENT IN WHICH IT
DENIED THE ESSENTIAL ALLEGATIONS OF THE COMPLAINT AS WELL AS THE
COMMISSION OF ANY UNFAIR LABOR PRACTICES.
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN RESPONDENT UNION (FASTA) HAS BEEN,
AND STILL IS, THE COLLECTIVE BARGAINING REPRESENTATIVE OF ALL EMPLOYEES
OF THE AIRWAY FACILITIES DIVISION LOCATED IN THE REGIONS OF THE FEDERAL
AVIATION ADMINISTRATION (FAA).
2. BOTH RESPONDENT AND FAA ARE PARTIES TO A WRITTEN COLLECTIVE
BARGAINING AGREEMENT WHICH COVERS THE AFORESAID UNIT AND IS EFFECTIVE,
BY ITS TERMS, FOR A PERIOD OF TWO YEARS FROM DECEMBER 1, 1977.
3. THE SAID AGREEMENT INCLUDES A GRIEVANCE PROCEDURE (ARTICLE 56)
WHICH PROVIDES FOR CONSIDERATION AND SETTLEMENT OF SPECIFIED GRIEVANCES.
ARTICLE 56 SETS FORTH A 3 STEP PROCEDURE FOR THE RESOLUTION THEREOF.
IN THE INITIAL STEP, WHICH IS INFORMAL IN NATURE, THE GRIEVANT MAY SEEK
RESOLUTION FROM HIS SUPERVISOR. THE SECOND STEP AFFORDS THE GRIEVANT
AND/OR HIS UNION REPRESENTATIVE THE OPPORTUNITY TO MEET WITH THE SECTOR
MANAGER OR BRANCH CHIEF AND MAKE AN ORAL PRESENTATION. IF THE UNION IS
NOT SATISFIED WITH THE SECOND STEP DECISION, IT MAY SEEK REVIEW BY THE
CHIEF, AIRWAY FACILITIES DIVISION, OR THE LATTER'S DESIGNEE. WITHIN 30
DAYS FOLLOWING THE DATE OF THE REGIONAL DECISION, THE UNION AT THE
NATIONAL LEVEL MAY ADVISE THE FAA THAT IT DESIRES TO SUBMIT THE MATTER
TO ARBITRATION. /3/
4. THE CHARGING PARTY HEREIN, JOHN ESPOSITO, IS, AND HAS BEEN AT ALL
TIMES MATERIAL HEREIN, EMPLOYED BY FAA AS AN ELECTRONIC TECHNICIAN AT
THE JOHN F. KENNEDY INTERNATIONAL AIRPORT, JAMAICA, NEW YORK.
5. PRIOR TO ATTENDING A THREE WEEK TRAINING SESSION SCHEDULED TO
COMMENCE ON JUNE 28, 1978 AT THE FAA ACADEMY IN OKLAHOMA CITY, OKLAHOMA,
ESPOSITO REQUESTED USE OF POV (PRIVATELY OWNED VEHICLE) TO MAKE THE
TRIP. SINCE HE HAD FIVE CHILDREN, THE EMPLOYEE WANTED TO EASE HIS
WIFE'S BURDEN AND TAKE SEVERAL YOUNGSTERS WITH HIM. THE REQUEST WAS
DENIED ALTHOUGH THE EMPLOYER AGREED TO REIMBURSE ESPOSITO FOR THE COST
OF A PLANE TICKET FOR HIMSELF.
6. THEREAFTER ON JUNE 23 ESPOSITO FILED GRIEVANCE NO. 78-58 WITH HIS
EMPLOYER PROTESTING ITS REFUSAL TO GRANT POV USE, WITH ATTENDANT
EXPENSES, TO DRIVE TO THE TRAINING SESSION IN OKLAHOMA CITY. HE ALLEGED
THEREIN THAT FAA, BY ITS DENIAL, VIOLATED ARTICLE 20, SECTION 2 OF THE
AGREEMENT /4/ BETWEEN FAA AND FASTA, AS WELL AS SECTION 13 OF THE ORDER.
THE SAID GRIEVANCE WAS DENIED BY FAA IN A LETTER TO ESPOSITO DATED JUNE
30.
7. DESPITE THE DENIAL TO USE POV BY MANAGEMENT, ESPOSITO DROVE HIS
CAS WITH TWO CHILDREN TO OKLAHOMA CITY WHERE HE ARRIVED ON JUNE 27. /5/
HE WAS CONFRONTED WITH VARIOUS PROBLEMS AT THE MOTELS, INCLUDING
UNPLEASANT ACCOMODATIONS AND LACK OF PROPER CARE FOR HIS YOUNGSTERS.
AFTER TRYING TO CONTACT SUPERVISOR KRAMER WITHOUT SUCCESS, ESPOSITO LEFT
THE TRAINING SESSION ON JUNE 28 AND DROVE BACK TO NEW YORK. UPON
ARRIVING THEREAT HE TELEPHONED HIS SUPERVISOR, MR. FERRY, AND RELATED
WHAT HAD OCCURRED. FERRY ADVISED HIM TO RETURN TO OKLAHOMA CITY,
STATING THAT ESPOSITO WAS AWOL AND WOULD BE IN TROUBLE UNLESS HE DID SO.
WHEREUPON THE EMPLOYEE DROVE BACK TO THE TRAINING SESSION IN OKLAHOMA.
SINCE HE WAS ABSENT FROM THE ACADEMY ON JUNE 29 AND JUNE 30, HE WAS NOT
PAID FOR THOSE TWO DAYS.
8. WHILE IN OKLAHOMA CITY ATTENDING THE ACADEMY, AND ON JULY 13,
ESPOSITO JOINED THE PROFESSIONAL AIRWAYS SYSTEM SPECIALISTS (HEREIN
CALLED PASS) WHICH ALSO REPRESENTED ELECTRONIC TECHNICIANS AT VARIOUS
FAA LOCATIONS. UPON HIS RETURN TO NEW YORK ESPOSITO BECAME ACTIVE ON
BEHALF OF PASS. HE OBTAINED SIGNATURES ON PETITIONS FOR REPRESENTATION,
SPOKE TO EMPLOYEES ON BEHALF OF THIS UNION, AND DISTRIBUTED LITERATURE
THROUGHOUT THE AGENCY. MANAGEMENT TOLD ESPOSITO TO REMOVE THEM FROM
MAILSLOTS SINCE IT WAS CONCERNED WITH THE CLUTTER OF CIRCULARS.
9. SHORTLY THEREAFTER IN THE MIDDLE OF JULY, RALPH LOPEZ, WHO IS
REPRESENTATIVE OF FASTA FOR BOTH THE JFK AIRPORT SECTOR AND THE EASTERN
REGION, VISITED ESPOSITO AT HIS HOME. THE UNION REPRESENTATIVE TOLD THE
EMPLOYEE THAT IF HE WANTED HIS GRIEVANCE TO GO TO ARBITRATION, HE MUST
JOIN FASTA. /6/ ESPOSITO TESTIFIED, AND I FIND, THAT HE INFORMED LOPEZ
OF HIS AFFILIATION WITH PASS; THAT WHILE THE UNION AGENT DID NOT VOICE
ANY OPPOSITION, HE DID INDICATE THAT HE PREFERRED THE EMPLOYEE WOULD
BELONG SOLELY TO FASTA. WHEREUPON ESPOSITO SIGNED AN APPLICATION FORM
TO JOIN RESPONDENT UNION.
10. ESPOSITO FILED GRIEVANCE NO. 78-65 WITH FAA ON AUGUST 1
PROTESTING THE DECISION BY MANAGEMENT THAT HE WAS CHARGED WITH BEING
AWOL FOR TWO DAYS (JUNE 29 & 30). THE GRIEVANT ALLEGED THAT ARTICLES 19
(SECTION 1), 20 (SECTION 2), AND 41 (SECTIONS 5 AND 6) OF THE COLLECTIVE
BARGAINING AGREEMENT WERE VIOLATED BY THE EMPLOYER. /7/ THIS GRIEVANCE
WAS DENIED BY FAA IN A LETTER DATED AUGUST 8. THE DENIAL WAS REVOKED ON
AUGUST 14 SINCE ESPOSITO HAD NOT BEEN AFFORDED AN OPPORTUNITY TO PRESENT
HIS CASE ORALLY. SUBSEQUENTLY ON AUGUST 17 GRIEVANCE NO. 78-65 WAS
DENIED AGAIN ON THE GROUND THAT ESPOSITO HAD NOT RECEIVED AUTHORIZATION
TO LEAVE THE ACADEMY IN OKLAHOMA AND RETURN TO NEW YORK.
11. A LETTER OF REPRIMAND DATED AUGUST 14 WAS ISSUED BY FAA TO
ESPOSITO FOR HAVING LEFT HIS DUTY STATION ON JUNE 29 AND 30, AND THE
EMPLOYEE WAS ADVISED THE LETTER WOULD BE PUT IN HIS PERSONNEL FILE.
12. A THIRD GRIEVANCE WAS FILED BY ESPOSITO AGAINST FAA ON SEPTEMBER
2, DESIGNATED AS NO. 78-84, CLAIMING THAT THE REPRIMAND WAS IMPROPER AND
ILLEGAL. THE GRIEVANT ALSO REITERATED HIS PROTESTS RE MANAGEMENT'S
REFUSAL TO ALLOW USE OF POV AS WELL AS PLACING HIM ON AWOL FOR TWO DAYS.
THE GRIEVANCE RECITED THAT ARTICLE 17 (SECTION 1) OF THE AGREEMENT, AS
WELL AS THOSE ARTICLES MENTIONED IN THE TWO PREVIOUS GRIEVANCES, WERE
VIOLATED BY THE EMPLOYER. THIS GRIEVANCE WAS DENIED BY FAA IN A LETTER
DATED SEPTEMBER 22.
13. THE RECORD REFLECTS THAT LOPEZ, AS SECTOR REPRESENTATIVE,
HANDLES GRIEVANCES UP TO THE THIRD STEP OF THE GRIEVANCE PROCEDURE AND
PRIOR TO THEIR SUBMISSION TO ARBITRATION. HE ARGUES THE GRIEVANCE OR
TRIES TO RESOLVE IT WITH THE SECTOR MANAGER. WHEN THE GRIEVANCE GOES
BEYOND THE SECTOR LEVEL, LOPEZ HAS NO FURTHER ROLE IN PROCESSING IT
EXCEPT TO FORWARD SAME TO THE REGIONAL PRESIDENT. THOMAS TOMCHECK,
REGIONAL PRESIDENT OF FASTA'S EASTERN REGION, GENERALLY MEETS WITH THE
REGIONAL DIRECTOR OF THE AGENCY AND ARGUES THE GRIEVANCE ON BEHALF OF
THE GRIEVANT WHO MAY, AT TIMES, GIVE AN ORAL PRESENTATION. EITHER THE
SECTOR REPRESENTATIVE OR THE REGIONAL REPRESENTATIVE MAY RECOMMEND
ARBITRATION OF THE GRIEVANCE. THE FINAL DECISION AS TO SEEKING
ARBITRATION RESTS WITH STANLEY A. LYMAN, EXECUTIVE VICE-PRESIDENT OF
RESPONDENT AND THE FASTA COUNCIL.
14. IN RESPECT TO THE THREE GRIEVANCES FILED BY ESPOSITO AGAINST
FAA, LOPEZ REPRESENTED THE EMPLOYEE DURING DISCUSSIONS WITH THE
EMPLOYER. THE UNION OFFICIAL ACCOMPANIED ESPOSITO ON AT LEAST ONE
OCCASION DURING INFORMAL MEETINGS WITH MANAGEMENT AND WAS IN ATTENDANCE
DURING DISCUSSIONS RE THE THIRD GRIEVANCE. /8/
15. IN ACCORDANCE WITH HIS USUAL PROCEDURE, LOPEZ FORWARDED TO THE
NATIONAL OFFICE OF RESPONDENT THE ENTIRE PACKAGE DEALING WITH ESPOSITO'S
GRIEVANCES. THE PACKAGE INCLUDED THE GRIEVANCES TOGETHER WITH ALL
LETTERS OR REPLIES FROM MANAGEMENT. FURTHER, AS IS CUSTOMARY, LOPEZ
RECOMMENDED THAT THE NATIONAL UNION REVIEW THE GRIEVANCES AND GO
FORWARD
TO ARBITRATION.
16. THE RECORD REFLECTS THAT UPON RECEIPT OF A GRIEVANCE PACKAGE
FROM THE REGIONAL REPRESENTATIVE, STANLEY A. LYMAN, EXECUTIVE
VICE-PRESIDENT OF RESPONDENT USUALLY REQUESTS ARBITRATION IN ADVANCE OF
ANY THOROUGH REVIEW OF THE MERITS OF A GRIEVANCE. HE FOLLOWS THIS
PROCEDURE IN ORDER TO PROTECT THE TIMELINESS OF SUBMISSIONS FOR
ARBITRATION.
17. BY LETTER DATED AUGUST 24, LYMAN WROTE EDWARD V. CURRAN,
DIRECTOR OF LABOR RELATIONS OF FAA IN WASHINGTON, REQUESTING THAT
GRIEVANCE NO. 78-58 BE SUBMITTED TO ARBITRATION PURSUANT TO ARTICLE 56,
SECTION 5 OF THE COLLECTIVE BARGAINING AGREEMENT SINCE THE REGIONAL
RESPONSE TO THIS GRIEVANCE WAS DEEMED BY THE UNION TO BE UNSATISFACTORY.
SIMILAR LETTERS WERE WRITTEN BY LYMAN REQUESTING ARBITRATION IN RESPECT
TO GRIEVANCES NO. 78-65 AND NO. 78-84 ON SEPTEMBER 12 AND NOVEMBER 13
RESPECTIVELY.
18. ON NOVEMBER 2 LOPEZ APPROACHED ESPOSITO WHO WAS STANDING IN THE
COFFEE AREA IN THE TOWER BUILDING TALKING TO EMPLOYEE THOMAS DUFFY.
RECORD FACTS DISCLOSE THE UNION OFFICIAL STATED HE JUST LEARNED THAT
ESPOSITO WAS TRYING TO SIGN UP EMPLOYEES TO JOIN PASS; THAT ESPOSITO
SHOULD EITHER STOP GATHERING SIGNATURES AND CEASE HIS ACTIVITIES ON
BEHALF OF PASS OR LOPEZ WOULD HAVE THE EMPLOYEE'S GRIEVANCES DROPPED.
WHEN ESPOSITO RETORTED THAT HE WANTED TO REMAIN WITH PASS AND HOPED
LOPEZ WOULD NOT TAKE SUCH ACTION, THE LATTER REPLIED HE WOULD CALL
TOMCHECK AND HAVE THE GRIEVANCES DROPPED BECAUSE OF ESPOSITO'S
ACTIVITIES ON BEHALF OF PASS. FOLLOWING THIS CONVERSATION, THE UNION
AGENT MADE A TELEPHONE CALL WHICH WAS WITNESSED, BUT NOT OVERHEARD, BY
DUFFY AND EMPLOYEE JAMES MANTA. /9/
19. LYMAN TESTIFIED HE DID NOT KNOW ESPOSITO WAS A MEMBER OF PASS
ALTHOUGH HE WAS AWARE OF THE FACT THAT SAID UNION WAS ORGANIZING IN THE
EAST. RESPONDENT'S VICE-PRESIDENT STATED THAT LOPEZ DID NOT TELL HIM TO
DROP ESPOSITO'S GRIEVANCES AND WITHDRAW THEM FROM ARBITRATION. HE
TESTIFIED THAT THE LEGAL STAFF OF THE NATIONAL UNION CONCLUDED THERE WAS
NO MERIT TO THE GRIEVANCES, AND LYMAN WROTE LOPEZ TO THE EFFECT THAT THE
LEGAL STAFF HAD ADVISED THERE WAS NO BASIS FOR SUBMITTING ESPOSITO'S
GRIEVANCES TO ARBITRATION; THAT, BY REASON OF SUCH ADVICE, LYMAN WOULD
NOT SUBMIT THESE GRIEVANCES TO ARBITRATION.
20. IN A LETTER DATED NOVEMBER 30 LYMAN WROTE CURRAN STATING THAT
AFTER FURTHER REVIEWING GRIEVANCES 78-58, 65 AND 84, THE UNION DESIRED
TO WITHDRAW THE REQUEST THAT THEY BE HEARD BY AN ARBITRATOR. NO
NOTIFICATION WAS SENT TO ESPOSITO RE ITS WITHDRAWAL OF THE GRIEVANCES
FROM ARBITRATION.
21. THE RECORD INDICATES THAT IN 1978 RESPONDENT UNION REQUESTED
ARBITRATION OF 300-400 GRIEVANCES, AND APPROXIMATELY 3%-5% WERE
ARBITRATED. THE REMAINDER THEREOF WERE WITHDRAWN.
CONCLUSIONS
THE ISSUES PRESENTED HEREIN FOR DETERMINATION ARE SIMPLY STATED:
WHETHER RESPONDENT VIOLATED SECTION 19(B)(1) OF THE ORDER BY (1)
THREATENING EMPLOYEE ESPOSITO TO CEASE PROCESSING HIS GRIEVANCES UNLESS
HE DISCONTINUED HIS ACTIVITIES ON BEHALF OF ANOTHER LABOR ORGANIZATION,
(2) WITHDRAWING ITS REQUEST TO ARBITRATE ESPOSITO'S GRIEVANCES AFTER THE
UNION HAD PREVIOUSLY SUBMITTED THEM FOR ARBITRATION.
(1) IT IS PROVIDED UNDER SECTION 19(B)(1) OF THE ORDER THAT A LABOR
ORGANIZATION SHALL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS UNDER THE ORDER. THIS PARTICULAR PROVISION
HAS BEEN DEEMED TO ACCORD PROTECTION TO AN EMPLOYEE IN THE FILING OF
GRIEVANCES AS WELL AS HIS UNION ACTIVITIES. THUS, COERCIVE OR
INTIMIDATING STATEMENTS WHICH SUGGEST ADVERSE CONSEQUENCES TO AN
EMPLOYEE IN SEEKING ASSISTANCE TO FILE A GRIEVANCE WAS HELD VIOLATIVE OF
10(A)(1) OF THE ORDER. FEDERAL AVIATION ADMINISTRATION, AIRWAYS
FACILITIES SECTOR, TAMPA, FLA., A/SLMR NO. 725. IN THE CITED CASE
MANAGEMENT IMPLIED TO AN EMPLOYEE THAT IF THE LATTER DROPPED A PENDING
GRIEVANCE, CERTAIN PROMOTIONAL OPPORTUNITIES WOULD BE IN THE OFFING.
THE ASSISTANT SECRETARY FOUND SUCH STATEMENTS TO AN EMPLOYEE TO BE CLEAR
INTERFERENCE AND COERCION BY THE EMPLOYER. MOREOVER, SUCH REMARKS WILL
NECESSARILY DISCOURAGE EMPLOYEES FROM INITIATING AND FILING GRIEVANCES.
SEE FAA, AIR TRAFFIC CONTROL TOWER ET AL., A/SLMR NO. 920.
FURTHER, IT IS APPARENT THAT THREATS OF THIS NATURE WHICH EMANATE
FROM THE BARGAINING REPRESENTATIVE TO EMPLOYEES ARE LIKEWISE COERCIVE.
IT IS NO LESS AN INTERFERENCE WITH THE RIGHTS OF AN EMPLOYEE TO GRIEVE
UNDER THE CONTRACT WHEN THE UNION ATTEMPTS TO THWART THE EMPLOYEE IN
THIS REGARD. THE INDIVIDUAL IS ALSO ENTITLED TO BE FREE FROM RESTRAINT
OR DISCOURAGEMENT AT THE HANDS OF HIS BARGAINING REPRESENTATIVE WHEN
PURSUING A GRIEVANCE. WHILE RESPONDENT MAINTAINS OTHERWISE, I HAVE
CONCLUDED THAT UNION REPRESENTATIVE LOPEZ DID TELL ESPOSITO ON NOVEMBER
2 THAT HIS GRIEVANCES WOULD NOT BE PROCESSED UNLESS HE CEASED ACTIVITIES
ON BEHALF OF PASS. THIS REMARK IS INHERENTLY COERCIVE, INTERFERES WITH
THE RIGHT OF ESPOSITO TO PURSUE HIS GRIEVANCES, AND TENDS TO DISCOURAGE
THE EMPLOYEE IN THE EXERCISE OF HIS RIGHTS UNDER THE ORDER.
ACCORDINGLY, I FIND THAT RESPONDENT, BY SUCH CONDUCT, VIOLATED SECTION
19(B)(1) THEREOF.
(2) IT IS ALSO ESTABLISHED BOTH IN THE PRIVATE AND PUBLIC SECTORS
THAT AN EXCLUSIVE BARGAINING REPRESENTATIVE HAS AN OBLIGATION TO FAIRLY
REPRESENT UNIT EMPLOYEES. THIS DUTY ENCOMPASSES GOOD FAITH
REPRESENTATION IN THE PROCESSING OF GRIEVANCES THROUGH ARBITRATION.
COMMUNICATION WORKERS OF AMERICA, AFL-CIO (PACIFIC NORTHWEST BELL
TELEPHONE CO.), 205 NLRB 940; LOCAL R7-51, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES (NAGE), A/SLMR NO. 896. NEVERTHELESS, THIS
RESPONSIBILITY ON THE PART OF THE EXCLUSIVE REPRESENTATIVE DOES NOT
PROVIDE EMPLOYEES WITH AN ABSOLUTE RIGHT TO HAVE EVERY GRIEVANCE
PROCESSED ON THEIR BEHALF BY THE LABOR ORGANIZATION. SEE U.S.
DEPARTMENT OF THE NAVY, NAVAL ORDINANCE SYSTEM, LOUISVILLE, KY, A/SLMR
NO. 400 AT FOOTNOTE 5. THE DUTY TO PROVIDE FAIR REPRESENTATION IS
BREACHED ONLY WHEN THE CONDUCT OF THE REPRESENTATIVE IS ARBITRARY,
DISCRIMINATORY OR IN BAD FAITH. THUS, AS THE SUPREME COURT STATED IN
VACA V. SIPES, 368 U.S. 171(1967) A UNION MAY REFUSE TO REQUEST
ARBITRATION OF AN EMPLOYEE'S GRIEVANCE WHERE IT ACTS IN GOOD FAITH AND
DETERMINES THAT SUCH PROCEDURE WOULD BE FRUITLESS. THE COURT ECHOED THE
DOCTRINE THAT WHILE THE REPRESENTATIVE MAY NOT IGNORE A MERITORIOUS
GRIEVANCE, THE EMPLOYEE HAS NO ABSOLUTE RIGHT TO HAVE HIS GRIEVANCE
TAKEN TO ARBITRATION.
UPON CAREFUL CONSIDERATION OF THE RECORD HEREIN, I AM PERSUADED THAT
THE REFUSAL BY RESPONDENT TO REQUEST ARBITRATION OF ESPOSITO'S
GRIEVANCES WAS NOT BOTTOMED UPON DISCRIMINATORY MOTIVATION. IT DOES NOT
APPEAR THAT NATIONAL REPRESENTATIVE LYMAN WAS AWARE OF ESPOSITO'S
ACTIVITIES ON BEHALF OF PASS. NEITHER DOES THE RECORD REFLECT THAT
LOPEZ COMMUNICATED WITH LYMAN AND INFORMED HIM OF SUCH ACTIVITIES.
WHILE GENERAL COUNSEL SUGGESTS AN INFERENCE MAY BE DRAWN THAT THE LOCAL
REPRESENTATIVE INSTIGATED THE WITHDRAWAL OF THE GRIEVANCES FROM
ARBITRATION, I AM UNABLE TO SO INFER FROM THE STATE OF THE RECORD
HEREIN. THERE IS AMPLE EVIDENCE TO SUPPORT THE DETERMINATION MADE BY
THE RESPONDENT'S LEGAL STAFF THAT THE GRIEVANCES LACKED MERIT. AT THE
TIME ESPOSITO ATTENDED THE SUMMER SESSION IN OKLAHOMA CITY, THE EMPLOYER
HAD NOT AGREED TO A PROVISION WHICH PERMITTED EMPLOYEES TO USE A
PRIVATELY OWNED VEHICLE TO ATTEND MEETINGS. THUS, THIS EMPLOYEE HAD
USED HIS OWN CAR WITHOUT AUTHORIZATION AND DID, IN TRUTH, MISS TWO DAYS
FROM THE SESSION WITHOUT PERMISSION. ACCORDINGLY, A REASONABLE BASIS
PREVAILED FOR THE DISCIPLINE OF ESPOSITO. THEREFORE, THE BARGAINING
REPRESENTATIVE ACTED REASONABLY IN REFUSING TO PROCESS THE GRIEVANCE
THROUGH ARBITRATION IN THE FACE OF SUCH UNAUTHORIZED ACTIONS BY THIS
EMPLOYEE.
WHILE IT IS TRUE THE RESPONDENT SUBMITTED THE GRIEVANCES TO
ARBITRATION AT THE OUTSET, RECORD FACTS SHOW LYMAN DID SO IN ORDER TO
ASSURE TIMELY SUBMISSION UNDER THE CONTRACT. FURTHER, THERE IS
TESTIMONY THAT, DESPITE THE NUMBER OF GRIEVANCES SUBMITTED EACH YEAR BY
RESPONDENT, A VERY SMALL PERCENTAGE RESULTED IN ARBITRATION SINCE MOST
GRIEVANCES WERE WITHDRAWN. NOTE MUST BE TAKEN THAT THE RECORD IS BARREN
OF EVIDENCE INDICATING THAT RESPONDENT PROSECUTED GRIEVANCES UNDER
SIMILAR CIRCUMSTANCES IN THE PAST BUT REFUSED TO DO SO ON BEHALF OF
ESPOSITO. IN FINDING NO VIOLATION BY A UNION FOR FAILING TO PROCESS A
GRIEVANCE OF AN EMPLOYEE, THE NATIONAL LABOR RELATIONS BOARD TOOK SUCH A
FACTOR INTO CONSIDERATION IN LOCAL 1268 UAW (CHRYSLER CORP.), 193 NLRB
898.
BASED ON THE FOREGOING, I AM PERSUADED GENERAL COUNSEL FAILED TO
ESTABLISH THAT RESPONDENT ACTED ARBITRARILY OR IN BAD FAITH WHEN IT
WITHDREW ESPOSITO'S GRIEVANCES FROM ARBITRATION. CONSIDERABLE LATITUDE
MUST, I CONCLUDE, BE AFFORDED A BARGAINING REPRESENTATIVE IN ASSESSING
THE MERITS OF A GRIEVANCE. IN THE ABSENCE OF A SHOWING THAT
REPRESENTATION WAS NOT ACCORDED AN EMPLOYEE BECAUSE OF DISCRIMINATORY
REASONS, A UNION MAY NOT BE CHARGED WITH COMMITTING AN UNFAIR LABOR
PRACTICE. NO SUCH SHOWING IS EVIDENT IN THE CASE AT BAR AND THEREFORE I
FIND THAT RESPONDENT DID NOT VIOLATE SECTION 19(B)(1) BY REASON OF ITS
REFUSAL TO SUBMIT ESPOSITO'S GRIEVANCES TO ARBITRATION.
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTION 19(B)(1) OF THE
ORDER BY REFUSING OR FAILING TO REQUEST ARBITRATION OF JOHN ESPOSITO'S
GRIEVANCES BECAUSE OF HIS ACTIVITIES ON BEHALF OF ANOTHER LABOR
ORGANIZATION, I RECOMMEND DISMISSAL OF THIS ALLEGATION IN THE COMPLAINT
HEREIN. HAVING FOUND THAT RESPONDENT VIOLATED SECTION 19(B)(1) OF THE
ORDER BY REASON OF THREATENING TO DISCONTINUE PROCESSING JOHN ESPOSITO'S
GRIEVANCES UNLESS HE DISCONTINUED HIS ACTIVITIES ON BEHALF OF ANOTHER
LABOR ORGANIZATION. I RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING
ORDER.
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND REGULATIONS, IT
IS HEREBY ORDERED THAT THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION, SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING JOHN ESPOSITO, OR ANY OTHER EMPLOYEE, THAT IT WILL
NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE EMPLOYEE UNLESS HE
DISCONTINUES OR CEASES HIS ACTIVITIES ON BEHALF OF PROFESSIONAL AIRWAYS
SYSTEM SPECIALISTS (PASS), OR ANY OTHER LABOR ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE ACT.
2. TAKE THE FOLLOWING ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND
POLICIES OF THE ACT. /10/
(A) POST AT THE BULLETIN BOARDS PROVIDED FOR THE POSTING OF UNION
MATERIAL BY THE FEDERAL AVIATION ADMINISTRATION, AIRWAY FACILITIES, JOHN
F. KENNEDY INTERNATIONAL AIRPORT COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE PRESIDENT OF FEDERAL AVIATION SCIENCE AND
TECHNOLOGICAL ASSOCIATION AND SHALL BE POSTED, WITH THE CONSENT AND
APPROVAL OF THE FEDERAL AVIATION ADMINISTRATION AIRWAYS FACILITIES, JOHN
F. KENNEDY INTERNATIONAL AIRPORT FOR 60 CONSECUTIVE DAYS THEREAFTER.
REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR OF REGION II, ROOM 241, 26 FEDERAL
PLAZA, NEW YORK, NY IN WRITING WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: JULY 8, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL MEMBERS
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF THE
FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE
LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SECTOR
WE HEREBY NOTIFY OUR MEMBERS THAT:
WE WILL NOT THREATEN OR COERCE JOHN ESPOSITO, OR ANY OTHER EMPLOYEE,
THAT WE WILL NOT CONTINUE TO PROCESS ANY GRIEVANCES FILED BY THE
EMPLOYEE UNLESS HE DISCONTINUES OR CEASES HIS ACTIVITIES ON BEHALF OF
PROFESSIONAL AIRWAYS SYSTEM SPECIALISTS (PASS), OR ANY OTHER LABOR
ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE ACT.
. . . (UNION OR LABOR ORGANIZATION)
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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, ROOM 241, FEDERAL
PLAZA, NEW YORK, NY.
--------------- FOOTNOTES: ---------------
/1/ THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED ORDER AND NOTICE HAVE
BEEN MODIFIED TO CONFORM TO CUSTOMARY AUTHORITY FORMAT, AND TO EXTEND
THE POSTING AREA TO ENCOMPASS THE JOHN F. KENNEDY INTERNATIONAL AIRPORT
FACILITIES SECTOR, THE AREA OF THE ACTIVITY UNDER THE RESPONSIBILITY OF
THE UNION OFFICIAL WHOSE ACTION HEREIN WAS FOUND TO HAVE VIOLATED THE
ORDER.
/2/ 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 E.O. 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.
/3/ ONLY THOSE GRIEVANCES INVOLVING INTERPRETATION OR APPLICATION OF
THE AGREEMENT, AND APPLICATION OF FAA POLICIES AND REGULATIONS NOT
CONTAINED IN THE AGREEMENT, MAY BE SUBMITTED TO AN ARBITRATOR.
/4/ THIS ARTICLE DEALS WITH "TEMPORARY ASSIGNMENT AND ASSOCIATION PER
DIEM" AND PROVIDES THAT EMPLOYEES ASSIGNED TO TEMPORARY DUTY SHALL
RECEIVE FULL PER DIEM APPLICABLE TO THEIR TRAVEL SITUATION AS PRESCRIBED
BY LAW AND REGULATIONS.
/5/ ALL DATES OCCUR IN 1978 UNLESS OTHERWISE SPECIFIED.
/6/ WHILE LOPEZ DENIES HE INSISTED THAT ESPOSITO WOULD BE REQUIRED TO
JOIN FASTA IF HE WANTED A GRIEVANCE TO BE ARBITRATED, I CREDIT ESPOSITO
IN THIS REGARD. THIS CREDIBILITY DETERMINATION IS BASED, IN LARGE PART,
UPON THE FACT THAT, AS DESCRIBED INFRA, TWO WITNESSES CORROBORATED
ESPOSITO'S VERSION OF ANOTHER CONVERSATION HE HELD WITH LOPEZ.
/7/ ALTHOUGH ARTICLE 19 IS ENTITLED "TRAVEL AND PER DIEM" NO
SUBSTANTIVE PROVISIONS WITH RESPECT THERETO ARE SET FORTH. THE PARTIES
WERE NEGOTIATING FOR THE POV PROVISION BUT IT HAD NOT BEEN SETTLED AT
THE TIME OF ESPOSITO'S GRIEVANCE. AT A LATER DATE, ARTICLE 19 PROVIDED
THAT A TECHNICIAN ATTENDING THE TRAINING SESSION IN OKLAHOMA WOULD BE
ALLOWED THE USE OF HIS VEHICLE WITH MILEAGE AND PER DIEM. SECTIONS 5
AND 6 OF ARTICLE 41 DEAL WITH THE APPROVAL BY MANAGEMENT OF REQUESTS FOR
ANNUAL LEAVE AND THE USE THEREOF BY EMPLOYEES.
/8/ WHILE NEITHER ESPOSITO NOR LOPEZ WAS ABLE TO RECALL WITH
EXACTITUDE THE NUMBER OF MEETINGS ATTENDED BY THE UNION AGENT, ESPOSITO
TESTIFIED THAT LOPEZ ADEQUATELY REPRESENTED HIM AS TO ALL THREE
GRIEVANCES.
/9/ LOPEZ DENIES HE WARNED ESPOSITO TO DISCONTINUE SOLICITING ON
BEHALF OF PASS OR THE EMPLOYEE'S GRIEVANCES WOULD BE DROPPED. HE
ADMITTED, HOWEVER, THAT HE TOLD ESPOSITO IF HE DID NOT CEASE SOLICITING
SIGNATURES, THE UNION OFFICIAL WOULD ASK SECTION MANAGER MORRISON TO
DEAL WITH THE PROBLEM. THE FACTS SET FORTH ABOVE REPRESENT THE CREDITED
VERSION OF WHAT OCCURRED AS TESTIFIED TO BY ESPOSITO AND CORROBORATED BY
DUFFY AND MANTA WHO OVERHEARD THE DISCUSSION ON NOVEMBER 2.
/10/ SINCE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES FOR THE USE
OF BULLETIN BOARDS FOR UNION MATERIAL, I SHALL ORDER THE NOTICE HEREIN
TO BE POSTED THEREON. NO PROVISION IS THEREFORE MADE FOR THE MAILING OF
NOTICES TO UNION MEMBERS.