[ v08 p561 ]
08:0561(109)CA
The decision of the Authority follows:
8 FLRA No. 109
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
REGION IV
MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION
Charging Party
Case No. 4-CA-442
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND MAKE CERTAIN AFFIRMATIVE ACTIONS. NO
EXCEPTIONS WERE FILED.
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 (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 THE SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE
OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE 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 DEPARTMENT OF THE TREASURY, UNITED
STATES CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA SHALL:
(1) CEASE AND DESIST FROM:
(A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY COUNSELING
ALBERT MARCANTONIO, OR OTHER REPRESENTATIVE OF THE NATIONAL TREASURY
EMPLOYEES UNION AS REPRISAL OR RETALIATION FOR ASSISTING BARGAINING UNIT
EMPLOYEES IN THE PRESENTATION OF A COMPLAINT OR GRIEVANCE AGAINST THE
RESPONDENT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) REMOVE OR EXPUNGE FROM ITS FILES THE FIRST AND THIRD PARAGRAPHS
OF THE MARCH 30, 1980 RECORD OF COUNSELING EXECUTED BY CHIEF INSPECTOR
BOBBIE R. PEACOCK IN CONNECTION WITH HIS MARCH 30, 1980 COUNSELING OF
ALBERT MARCANTONIO.
(B) POST AT ALL UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI,
FLORIDA FACILITIES AND INSTALLATIONS COPIES OF THE ATTACHED NOTICE ON
FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE REGIONAL COMMISSIONER
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. THE REGIONAL
COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION IV, FEDERAL LABOR
RELATIONS AUTHORITY, SUITE 501, 1776 PEACHTREE STREET, N.W., NORTH WING,
ATLANTA, GEORGIA 30309 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., MAY 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
COUNSELING ALBERT MARCANTONIO, OR OTHER REPRESENTATIVE OF THE NATIONAL
TREASURY EMPLOYEES UNION AS REPRISAL OR RETALIATION FOR ASSISTING
BARGAINING UNIT EMPLOYEES IN THE PRESENTATION OF A COMPLAINT OR
GRIEVANCE AGAINST THE RESPONDENT.
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 REMOVE OR EXPUNGE FROM OUR FILES THE FIRST AND THIRD
PARAGRAPHS OF THE MARCH 30, 1980 RECORD OF COUNSELING EXECUTED BY CHIEF
INSPECTOR BOBBIE R. PEACOCK IN CONNECTION WITH HIS MARCH 30, 1980
COUNSELING OF ALBERT MARCANTONIO.
(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
MATERIALS. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: SUITE 501, 1776 PEACHTREE STREET, N.W., NORTH WING,
ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS : (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MARC L. BARBAKOFF, ESQUIRE
FOR THE RESPONDENT
BRENDA S. GREEN, ESQUIRE
MATHILDE L. GENOVESE, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101 ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
THE COMPLAINT, AS AMENDED, ALLEGED THAT ON MARCH 30, 1980, THE
RESPONDENT, THROUGH BOBBIE R. PEACOCK, CHIEF INSPECTOR (CI), PORT OF
ATLANTA, ATLANTA, GEORGIA, /1/ VIOLATED SECTIONS 7116(A)(1) AND (2) OF
THE STATUTE BY COUNSELING, AND FILING A RECORD OF COUNSELING, OF ALBERT
MARCANTONIO, A CUSTOMS INSPECTOR ASSIGNED TO THE PORT OF ATLANTA, AND
WHO WAS THEN SERVING AS PRESIDENT OF CHAPTER 177, OF THE NATIONAL
TREASURY EMPLOYEES UNION (HEREINAFTER CALLED "THE UNION" AND "CHARGING
PARTY"). IT WAS ALLEGED THAT THE COUNSELING RELATED TO A MARCH 29, 1980
COMPLAINT MADE BY MARCANTONIO THAT TOO MANY PASSENGERS WERE BEING SENT
TO SECONDARY INSPECTION LINES. /2/
THE RESPONDENT ADMITS THAT CI PEACOCK PARTICIPATED IN THE MARCH 30,
1980 COUNSELING SESSION, BUT DENIES VIOLATING SECTION S 7116(A)(1) AND
(2). RESPONDENT ALSO DEFENDS BY ASSERTING THAT MARCANTONIO WAS
COUNSELED FOR LEGITIMATE MANAGERIAL PURPOSES.
IN THE POST-HEARING BRIEF FILED BY COUNSEL FOR THE RESPONDENT AN
ATTEMPT IS MADE TO "RENEW" MOTIONS MADE ON BEHALF OF THE RESPONDENT
PRIOR TO AND AT THE OPENING OF THE HEARING. THESE MOTIONS WERE DENIED
(TR. 16-23). /3/ THE POST-HEARING BRIEF SETS FORTH NOTHING NEW
REGARDING ISSUES RELATING TO THE MENTIONED MOTIONS, AND PROVIDES NO
BASIS FOR RECONSIDERATION OF DENIALS ENTERED INTO THE RECORD.
ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
RESPONDENT. THESE HAVE BEEN DULY CONSIDERED. BASED UPON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION:
FINDING OF FACT
ROLE OF INSPECTOR MARCANTONIO
THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF CUSTOMS
INSPECTORS EMPLOYED AT THE PORT OF ATLANTA, ATLANTA, GEORGIA. INSPECTOR
MARCANTONIO HAS HELD THE POSITION OF PRESIDENT OF CHAPTER 177 OF THE
UNION FOR NEARLY TWO YEARS. AS PRESIDENT HE IS THE CHIEF SPOKESMAN FOR
THE BARGAINING UNIT. HIS DUTIES INVOLVE PROCESSING AND PRESENTING
WRITTEN AND ORAL BARGAINING UNIT COMPLAINTS TO MANAGEMENT OFFICIALS
EMPLOYED BY THE RESPONDENT (TR. 36-37, 208).
COUNSEL REPRESENTING THE RESPONDENT STIPULATED THAT PEACOCK KNEW THAT
MARCANTONIO WAS THE PRESIDENT OF THE UNION (TR. 33), AND THAT HE WAS
VERY ACTIVE AS A UNION OFFICER (TR. 50). HOWEVER, SPECIFIC
REPRESENTATION WORK PERFORMED BY MARCANTONIO WILL BE DESCRIBED IN DETAIL
IN ORDER TO DEVELOP THE FACTUAL SITUATION PRESENTED PRIOR TO THE
COUNSELING SESSION UNDERLYING ALLEGATIONS IN THE COMPLAINT.
THE RECORD ESTABLISHED THAT MARCANTONIO HAD WRITTEN TO MEMBERS OF
CONGRESS IN HIS CAPACITY AS A UNION OFFICER IN AN EFFORT TO RESOLVE
COMPLAINTS; THAT HE DEALT OFTEN WITH CI PEACOCK AND OTHER HIGHER
MANAGEMENT OFFICIALS IN THE CUSTOMS SERVICE IN CONNECTION WITH UNION
BUSINESS; THAT HE HAD, AS A UNION OFFICIAL, COMPLAINED THAT PEACOCK AND
PORT DIRECTOR KENNETH ANDERBERG WERE THE SOURCE OF MORALE PROBLEM AT
THE
PORT OF ATLANTA; THAT MARCANTONIO WAS DEEPLY INVOLVED IN FEBRUARY 1980
NEGOTIATIONS LEADING TO EFFECTUATION OF A POLICY CHANGE ON MARCH 3,
1980, WHEREBY CI PEACOCK'S AUTHORITY TO SCHEDULE OVERTIME FOR CUSTOMS
INSPECTORS WAS LIMITED SUBSTANTIALLY; THAT ON MARCH 26, 1980 HE
REQUESTED THAT THE PORT DIRECTOR NEGOTIATE CONCERNING A "TACTICAL
ENFORCEMENT TEAM," AND THAT ON MARCH 27, 1980, THE POST DIRECTOR
ACKNOWLEDGED THE REQUEST AND AGREED TO NEGOTIATE; THAT HE HAD RECRUITED
UNION MEMBERS; AND THAT HE CONDUCTED UNION MEETINGS AS NEEDED. IT WAS
MARCANTONIO'S PRACTICE TO ADVISE MANAGEMENT WHEN HE WAS SPEAKING IN A
PERSONAL AS DISTINCT FROM A REPRESENTATIVE CAPACITY (TR. 134-135).
ON MARCH 29, 1980. THE DAY ON WHICH EVENTS LEADING UP TO THE
COUNSELING OCCURRED, AND PRIOR TO SUCH EVENTS, MARCANTONIO MET WITH CI
PEACOCK CONCERNING CERTAIN COMPLAINTS RELATING TO THE SUBJECT OF
OVERTIME WORK (TR. 68-69). ON MARCH 30, 1980, PRIOR TO THE COUNSELING
SESSION, MARCANTONIO AGAIN, IN HIS CAPACITY AS THE UNION'S SPOKESMAN,
CONVERSED WITH PEACOCK CONCERNING A DISPUTE RELATING TO AN OVERTIME
CLAIM (TR. 69-70.) /4/
DUTIES OF CUSTOMS INSPECTORS OUTLINED
MARCANTONIO'S DUTIES AS A CUSTOMS INSPECTOR INCLUDED THE INSPECTION
OF PASSENGERS AND LUGGAGE AT THE DELTA INTERNATIONAL ARRIVAL BUILDING
(DIAB) IN THE PORT OF ATLANTA. THE CUSTOMS SERVICE UTILIZES THE CUSTOMS
ACCELERATED PASSENGER INSPECTION SYSTEM (CAPIS) AT THIS FACILITY, AND
HAS DONE SO SINCE ABOUT MAY OF 1978. A NUMBER OF CONFIGURATIONS OF
CAPIS ARE USED BY THE CUSTOMS SERVICE. ALL INVOLVE THE EMPLOYMENT OF
PRIMARY INSPECTORS AND SECONDARY INSPECTORS. AT THE DIAB THE SERVICE
USES MODULES WITH TWO PRIMARY INSPECTORS AND TWO SECONDARY INSPECTORS.
EACH SECONDARY INSPECTOR IS LOCATED DIRECTLY BEHIND A PRIMARY INSPECTOR,
AND THEY ARE USUALLY SEPARATED BY DISTANCES OF ABOUT EIGHT TO
TWENTY-FIVE FEET. VISUAL CONTACT OF THE SECONDARY INSPECTOR BY THE
PRIMARY INSPECTOR IS POSSIBLE IF THE PRIMARY INSPECTOR TURNS AROUND TO
OBSERVE THE SECONDARY INSPECTOR (TR. 191).
PASSENGERS ARE FIRST DIRECTED TO PRIMARY INSPECTORS WHO EXAMINE THEIR
DOCUMENTS (PASSPORT, DECLARATION AND AIRLINE TICKET), AND MAKE AN
INITIAL CUSTOMS EXAMINATION. PRIMARY INSPECTION MAY COMPLETE THE
INSPECTION PROCESS ENTIRELY, OR REFER THE PASSENGER BACK TO A SECONDARY
INSPECTOR FOR MORE DETAILED PROCESSING AS APPROPRIATE. IN SUCH CASES
THE PRIMARY INSPECTOR CODES PASSENGER DECLARATIONS TO OWING, POSSESSION
OF AGRICULTURAL PRODUCTS, SUSPICIOUS APPEARANCE, OR OTHER REASON
WARRANTING A MORE INTENSIVE SEARCH). THE SECONDARY INSPECTOR THEN
COMPLETES THE PROCESSING OF THE PASSENGER. UNDER CAPIS THE PRIMARY
INSPECTOR HAS AUTHORITY TO REFER PASSENGERS BACK FOR INITIAL PROCESSING
IF A SECONDARY INSPECTOR IS NOT OTHERWISE ENGAGED IN THE INSPECTION
PROCESS. IF THE SECONDARY INSPECTOR HAS A PROBLEM ON HIS LINE, THE
PRIMARY INSPECTOR WOULD NOT BE AUTHORIZED TO REFER PASSENGERS BACK FOR
INITIAL INSPECTION WORK (TR. 279). ORDINARILY, THERE IS COMMUNICATION
BETWEEN PRIMARY AND SECONDARY INSPECTORS IN ORDER TO EXPEDITE THE
INSPECTION PROCESS.
IT WAS ESTABLISHED THAT THE PRIMARY INSPECTOR HAS AUTHORITY TO REFER
PASSENGERS TO A SECONDARY INSPECTOR FOR THE REASONS OUTLINED, BUT THE
SECONDARY HAS NO AUTHORITY TO REFER THEM BACK TO THE PRIMARY INSPECTOR
(TR. 146-147). THAT IS, THE PRIMARY INSPECTOR HAS THE AUTHORITY TO
CONTROL THE WORKFLOW (TR. 147, 247-249). THE TESTIMONY OF SUPERVISORY
CUSTOMS INSPECTOR (SCI) RICHARD HORTON ESTABLISHED THAT A PRIMARY
INSPECTOR COULD OVERLOAD A SECONDARY INSPECTOR, AND THAT THE PRIMARY
INSPECTOR SHOULD BE VISUALLY OBSERVING THE WORKFLOW TO INSURE THAT
SECONDARY INSPECTORS ARE NOT SENT TOO MANY PASSENGERS TO PROCESS (TR.
386-387). HE ALSO ESTABLISHED THAT THE PRIMARY AND SECONDARY INSPECTORS
WERE PAID AT THE SAME GRADE LEVEL, AND THAT IT WOULD BE HIS FUNCTION TO
SPEAK TO A PRIMARY INSPECTOR WHO WAS KNOWINGLY SENDING TOO MANY
PASSENGERS TO A SECONDARY INSPECTOR FOR PROCESSING (TR. 389).
DUTIES PERFORMED UNDER CAPIS AT THE RESPONDENT'S ATLANTA LOCATION ARE
SUPERVISED BY CI PEACOCK, AND FIRST LINE SCI'S HORTON AND ROBERT J.
COWAN. THESE THREE ARE IN TURN SUPERVISED BY KENNETH A. ANDERBERG,
DIRECTOR, OF THE PORT OF ATLANTA. PEACOCK'S TESTIMONY ESTABLISHED THAT
HE IS RESPONSIBLE FOR BEING AWARE OF WORK ACTIVITY BEING DIRECTLY
SUPERVISED BY HORTON AND COWAN, AND THAT HE IS OFTEN PRESENT DURING THE
PROCESSING OF PASSENGERS (TR. 170, 190).
OVERLOADING OF SECONDARY INSPECTORS REPORTED TO SCI HORTON AND TO
INSPECTOR MARCANTONIO
IN FEBRUARY OR MARCH OF 1980, PRIOR TO EVENTS LEADING TO THE
COUNSELING SESSION, CUSTOMS INSPECTOR JACK BROOKS REPORTED TO SCI HORTON
THAT CUSTOMS INSPECTOR PATRICIA MCCANTS, WHILE ACTING AS A PRIMARY
INSPECTOR, IMPROPERLY REFERRED TOO MANY PASSENGERS TO HIM FOR INITIAL
INSPECTION WHEN HE WAS ACTING IN A SECONDARY POSITION (TR. 182-183,
194). THIS CAUSED CONGESTION IN HIS LINE (TR. 203). HE WAS INSTRUCTED
BY HORTON TO DISCUSS THE MATTER WITH MCCANTS. HE DID SO, BUT WAS UNABLE
TO OBTAIN HER COOPERATION (TR. 183, 187). BROOKS REPORTED HIS FAILURE
TO OBTAIN COOPERATION TO THE UNION THROUGH MARCANTONIO BECAUSE HE WAS
UNABLE TO RESOLVE THE ISSUE BY TALKING TO HORTON AND MCCANTS (TR.
183-184, 189-190). BROOKS CONTINUED TO HAVE SIMILAR PROBLEMS WITH
MCCANTS AFTER HIS MEETING WITH HER (TR. 190).
DURING THE SAME TIME PERIOD CUSTOMS INSPECTOR BETH CRAIG EXPERIENCED
A PASSENGER FLOODING OF HER SECONDARY POSITION AS A RESULT OF REFERRALS
FROM MCCANTS' PRIMARY INSPECTION POSITION (TR. 209). SHE COMPLAINED TO
HORTON, WHO RESPONDED BY EXPLAINING IN GENERAL TERMS HOW THE CAPIS
PROCEDURE WAS DESIGNED TO FUNCTION (TR. 361-362). HORTON DID NOT ADVISE
CRAIG TO COMMUNICATE WITH MCCANTS ABOUT THE PROBLEM (TR. 389). INSTEAD,
HORTON TOOK THE INITIATIVE AFTER RECEIVING CRAIG'S COMMENTS AND SPOKE
DIRECTLY TO MCCANTS THAT SAME DAY FOR THE PURPOSE OF RELAYING CRAIG'S
COMPLAINT (TR. 389). /5/ CRAIG ALSO REPORTED THE PROBLEM TO MARCANTONIO
BECAUSE HE WAS THE UNION PRESIDENT AND SHE DID NOT FEEL THAT SHE COULD
DO A SATISFACTORY JOB IN THE SECONDARY POSITION IF MCCANTS REFERRED TOO
MANY PASSENGERS TO THE SECONDARY POSITION (TR. 210).
IN ADDITION TO COMPLAINTS RECEIVED FROM CRAIG AND BROOKS RELATIVE TO
THE METHOD USED BY MCCANTS TO REFER PASSENGERS TO SECONDARY INSPECTORS,
MARCANTONIO RECEIVED A SIMILAR COMPLAINT FROM CUSTOMS INSPECTOR ROGER
MOYER, AND ALSO OTHER EARLIER COMPLAINTS OF THIS SAME NATURE (TR.
62-63).
INSPECTOR MARCANTONIO REPORTS COMPLAINT RELATING TO OVERLOADING
SECONDARY INSPECTORS
SOMETIME IN FEBRUARY OF 1980 MARCANTONIO REPORTED TO SCI COWAN,
DETAILS OF BARGAINING UNIT MEMBER COMPLAINTS WHICH HE HAD RECEIVED TO
THE EFFECT THAT MCCANTS WAS OVERLOADING SECONDARY INSPECTORS (TR.
65-66). MARCANTONIO WAS NOT INSTRUCTED TO COMMUNICATE WITH MCCANTS
CONCERNING THE PROBLEM (TR. 110). SCI COWAN'S TESTIMONY WAS EXTREMELY
VAGUE; HOWEVER, HE FREELY ACKNOWLEDGED RECEIPT OF SUCH INFORMATION FROM
MARCANTONIO PRIOR TO EVENTS RELATING TO THE COUNSELING, AND THE FACT
THAT HE ADVISED MARCANTONIO THAT HE (COWAN) "WOULD TAKE CARE OF IT," AND
FURTHER THAT HE "WOULD TALK TO (MCCANTS) ABOUT." (TR. 331). HIS
TESTIMONY ALSO ESTABLISHED THAT HE DID IN FACT SPEAK TO MCCANTS ABOUT
THE PROBLEM (TR. 334, 344-345). /6/
EVENTS RELATING TO COUNSELING OF INSPECTOR MARCANTONIO
ON MARCH 29, 1980, THE INCIDENT GIVING RISE TO THE COUNSELING SESSION
OCCURRED. WHILE MARCANTONIO WAS WORKING A CAPIS MODULE ON A SECONDARY
POSITION DIRECTLY BEHIND MCCANTS, A NUMBER OF PASSENGERS WERE REFERRED
TO MARCANTONIO BY MCCANTS CAUSING MARCANTONIO'S LINE TO BECOME CONGESTED
(TR. 66-67). MARCANTONIO SUMMONED SCI HORTON OVER TO HIS POSITION, AND
COMPLAINED TO SCI COWAN (TR. 67). CI PEACOCK WAS PRESENT AT THE TIME
MARCANTONIO COMPLAINED (TR. 67, 119). /7/ MARCANTONIO'S SECONDARY
POSITION WAS THEN ABOUT TEN FEET AWAY FROM MCCANTS, AND SHE COULD HAVE
EASILY OBSERVED MARCANTONIO'S WORK SITUATION (TR. 302-303).
IN RESPONSE TO MARCANTONIO'S COMPLAINT, HORTON AND PEACOCK EXPLAINED
TO MARCANTONIO IN GENERAL TERMS THE NEED FOR PRIMARY AND SECONDARY
INSPECTORS TO COOPERATE AND COMMUNICATE WITH ONE ANOTHER (TR. 67, 297),
AND ALSO, SUGGESTED THAT MARCANTONIO DISCUSS THE MATTER WITH MCCANTS
(TR. 117-118). /8/ IT WAS ESTABLISHED THAT PEACOCK WAS NOT PERSONALLY
AWARE OF THE FACTS RELATING TO MCCANTS' REFERRAL OF PASSENGERS TO
MARCANTONIO; HOWEVER, HE RECOGNIZED THAT MARCANTONIO COULD HAVE BEEN
FACING A PROBLEM WARRANTING SUPERVISORY ATTENTION (TR. 306, 309-310).
MARCANTONIO EXPLAINED THAT HE (MARCANTONIO) WAS NOT SUPERVISOR, THAT
HE AND MCCANTS WERE BOTH JOURNEYMEN INSPECTORS, THAT HE HAD NO AUTHORITY
OVER MCCANTS, AND THAT IT WAS A MATTER FOR A SUPERVISOR TO HANDLE (TR.
66-67, 118). PEACOCK AND HORTON CONTINUED TO EXPLAIN THAT CAPIS
REQUIRED COMMUNICATION BETWEEN PRIMARY AND SECONDARY INSPECTORS.
MARCANTONIO DID NOT RESPOND TO THE SUGGESTION BECAUSE HE HAD PREVIOUSLY
DISCUSSED THE MATTER WITH COWAN AND COWAN SAID HE WOULD ATTEND TO THE
PROBLEM; BECAUSE MCCANTS HAD BEEN UNRESPONSIVE IN THE PAST; BECAUSE HE
FELT THAT HORTON WAS AWARE OF THE PROBLEM AS A RESULT OF PRIOR
COMPLAINTS; BECAUSE HE FELT SUCH AN EFFORT WOULD BE FUTILE; AND
BECAUSE HE WAS OF THE OPINION THAT ONLY A SUPERVISOR COULD PROVIDE A
REMEDY (TR. 138-140). PRIOR TO COMPLETION OF THE DISCUSSION PEACOCK
LEFT HORTON AND MARCANTONIO AS THEY CONTINUED TO DISCUSS THE MATTER (TR.
297).
ON MARCH 30, 1980, AFTER MARCANTONIO HAD A DISCUSSION WITH PEACOCK
CONCERNING THE OVERTIME QUESTION, PEACOCK ANNOUNCED THAT HE WAS GOING TO
COUNSEL MARCANTONIO CONCERNING TWO INCIDENTS WHICH HAD OCCURRED ON THE
PREVIOUS DAY, THAT IS, THE FAILURE TO MEET AN INCOMING FLIGHT AND THE
MARCH 29, 1980 DISCUSSION THAT HORTON AND PEACOCK HAD WITH MARCANTONIO
CONCERNING MCCANTS' REFERRAL OF TOO MANY PASSENGERS TO MARCANTONIO
WHILE
HE WAS FUNCTIONING AS A SECONDARY INSPECTOR. WITH RESPECT TO THE LATER
PORTION OF THE COUNSELING, THE ONLY ELEMENT PLACED IN ISSUE IN THIS
CASE, PEACOCK PREPARED A MEMORANDUM FOR MARCANTONIO'S PERSONNEL FILE.
IT INCLUDED THE FOLLOWING:
3/30/80 . . . IN THE PRESENCE OF SCI COWAN I COUNSELED INSPECTOR
MARCANTONIO REGARDING THE
INCIDENT AT THE DELTA IAB RE: HIS COMPLAINT THAT INSPECTOR MCCANTS
WAS PUTTING TOO MANY
PASSENGERS ON HIS SECONDARY COUNTER AND HIS INABILITY TO COMMUNICATE
WITH HER. I EXPLAINED TO
MARCANTONIO HOW WE WANTED THE COUNTERS TO OPERATE. I EXPLAINED THAT
THEY WERE DESIGNED TO
MOVE PASSENGERS THAT WE DID NOT WANT TO SEE AND TO TAKE AS MUCH TIME
AS WE WANTED WITH THOSE
THAT WE WANTED TO SEE AND IF A SECONDARY INSPECTOR WAS TIED UP WITH A
PASSENGER IT WAS HIS
RESPONSIBILITY TO NOTIFY THE PRIMARY INSPECTOR . . .
THE RECORD DISCLOSED THAT SCI COWAN WAS PRESENT AS A WITNESS
THROUGHOUT THE COUNSELING (TR. 283-284,347), AND FURTHER THAT COWAN WAS
AWARE OF WHAT WAS OCCURRING (TR. 349). IN A SOMEWHAT ANGRY VOICE (TR.
71, 168), CI PEACOCK INFORMED MARCANTONIO THAT HIS RELUCTANCE TO
COMMUNICATE WITH MCCANTS REGARDING HER REFERRAL OF AN EXCESSIVE NUMBER
OF PASSENGERS TO HIS POSITION WAS AN INDICATION OF A FAILURE TO
UNDERSTAND CAPIS PROCEDURES; THAT COOPERATION AND COMMUNICATION
BETWEEN
PRIMARY AND SECONDARY INSPECTORS WERE ESSENTIAL AND THAT THE FAILURE ON
MARCANTONIO'S PART TO PERCEIVE AN OBLIGATION TO COMMUNICATE WITH MCCANTS
EXHIBITED INADEQUATE PERFORMANCE ON HIS PART (TR. 329).
MARCANTONIO EXPLAINED THAT HE HAD, AS UNION PRESIDENT, PREVIOUSLY
RAISED THE MATTER WITH SCI COWAN (TR. 70). HE THEN TURNED TO COWAN AND
REQUESTED HIM TO VERIFY THE PRIOR CONVERSATION WHEREIN MARCANTONIO HAD
COMPLAINED ON BEHALF OF OTHER INSPECTORS (TR. 70, 125). COWAN
ACKNOWLEDGED IN PEACOCK'S PRESENCE THAT MARCANTONIO HAD PREVIOUSLY
RAISED THE SUBJECT WITH HIM (TR. 70, 125). MARCANTONIO ALSO ASKED "HOW
MANY TIMES CAN (RESPONDENT) BE TOLD ABOUT A SITUATION AND BY HOW MANY
INDIVIDUALS." (TR. 54). PEACOCK ACKNOWLEDGED THAT DURING THE COUNSELING
MARCANTONIO AGAIN INFORMED HIM THAT OTHER INSPECTORS HAD COMPLAINED
ABOUT MCCANTS "STACKING UP THE LINES." (TR. 169). HE ALSO ADMITTED THAT
HE WOULD HAVE CONSIDERED RECEIPT OF A NUMBER OF COMPLAINTS A SERIOUS
PROBLEM WARRANTING HIS INTERVENTION (TR. 171-172). /9/
PEACOCK'S TESTIMONY ESTABLISHED THAT HE FELT MARCANTONIO'S
SHORTCOMING TO BE A "SERIOUS MATTER" (TR. 288-289), AND FURTHER THAT
MARCANTONIO'S CONDUCT COULD HAVE BEEN CONSTRUED AS "POOR PERFORMANCE OF
HIS DUTY OR UNSUBORDINATION OR A DISCIPLINARY TYPE MATTER." (TR. 287).
HOWEVER, AT THE SAME TIME HE ADMITTED THAT AT THE TIME OF THE COUNSELING
HE STILL DID NOT KNOW WHAT HAD HAPPENED AFTER HE LEFT HORTON AND
MARCANTONIO ON DECEMBER 29TH (TR. 297-298); THAT HE DID NOT INVESTIGATE
THE FACTS SURROUNDING THE ALLEGATIONS AGAINST MCCANTS, ALTHOUGH HE
ORDINARILY DID SO BEFORE COUNSELING EMPLOYEES; AND THAT MCCANTS'
CONDUCT COULD HAVE PRESENTED A SPECIAL PROBLEM OBVIATING THE NEED FOR
ANY EFFORT ON MARCANTONIO'S PART (TR. 307-309). PEACOCK ALSO
ACKNOWLEDGED THAT HE DID NOT ASK FOR MARCANTONIO'S SIDE OF THE STORY
PRIOR TO COUNSELING HIM (TR. 311).
IT WAS ESTABLISHED THAT IF EMPLOYEE BEHAVIOR AT RESPONDENT'S ACTIVITY
IS DEEMED A "SERIOUS" PROBLEM AND COUNSELING OCCURS, A REPORT IS
PREPARED AND RETAINED IN THE EMPLOYEE'S PERSONNEL FILE (TR. 162). ONLY
RECORDATIONS OF "SERIOUS COUNSELING" ARE FILED. IN THIS CASE CI PEACOCK
CAUSED THE RECORD OF THE COUNSELING TO BE FILED IN MARCANTONIO'S
PERSONNEL FILE. /10/ PERSONNEL FILES ARE REGULARLY USED FOR PURPOSES OF
WORK APPRAISALS, PROMOTIONS, AWARDS, AND DISCIPLINARY ACTION (TR. 162).
CIRCUMSTANCES RELATING TO EVALUATION OF INSPECTOR MARCANTONIO'S WORK
PERFORMANCE
THE RECORD DISCLOSED THAT INSPECTOR MARCANTONIO WORKED WITH THE
CUSTOMS SERVICE FOR SEVEN YEARS, THE LAST TWO YEARS OF WHICH HE WAS
ASSIGNED TO THE PORT OF ATLANTA (TR. 35-36, 79). HE HAS WORKED ON CAPIS
MODULES SINCE THE PROCEDURE WAS INTRODUCED IN MID 1978 (TR. 269), OR
FOR A PERIOD OF ABOUT TWO YEARS (TR. 62). CI PEACOCK'S TESTIMONY
CLEARLY ESTABLISHED THAT RESPONDENT'S REPRESENTATIVES RECEIVED NO
EVIDENCE THAT MARCANTONIO DID NOT UNDERSTAND THE CAPIS PROCEDURES PRIOR
TO MARCH 29, 1980, AND THAT NO PRIOR FAILURE TO COMMUNICATE WAS EVER
OBSERVED OR NOTED (TR. 269-270). PRIOR TO MARCH 30, 1980, MARCANTONIO
HAD NEVER BEEN COUNSELED FOR A FAILURE TO COMMUNICATE OR FOR FAILURE TO
WORK CAPIS PROPERLY (TR. 131, 168). CI PEACOCK STATED THAT HE NEVER HAD
ANY PRIOR PROBLEM WITH MARCANTONIO BEFORE THE INCIDENT IN QUESTION, AND
THAT HE NEVER HAD TO MAKE A RECORD OF THIS NATURE FOR HIS PERSONNEL FILE
(TR. 169).
APPROXIMATELY THREE WEEKS AFTER THE MARCH 30, 1980 COUNSELING, SCI'S
COWAN AND HORTON AND CI PEACOCK COMPLETED AN APPRAISAL OF MARCANTONIO'S
PERFORMANCE FOR A ONE YEAR PERIOD WHICH INCLUDED MARCH 29-30, 1980 (G.C.
EXH. 9). IT REFLECTED NO REFERENCE TO MARCANTONIO'S FAILURE TO
COMMUNICATE, NOR WAS HE DOWNGRADED IN ANY WAY FOR THE ALLEGED
MISCONDUCT. IN WORK APPRAISAL CATEGORIES RELATING TO ADAPTABILITY,
QUALITY OF WORK, AND TACT, HE RECEIVED A "5," THE HIGHEST POSSIBLE
GRADE, WHICH INDICATED THAT HE EXCELLED IN EVERY SITUATION RELEVANT TO
THESE FACTORS. HE WAS RATED AT THE "4" LEVEL, OR THE NEXT HIGHEST
LEVEL, IN CATEGORIES RELATING TO ATTITUDE, RESPONSIBILITY, JOB
KNOWLEDGE, WORK PRODUCTION, LEARNING ABILITY, ORAL COMMUNICATION AND
KNOWLEDGE OF CUSTOMS. THE "4" LEVEL INDICATED THAT HE DEMONSTRATED
ABILITY TO A DEGREE CLEARLY ABOVE THAT EXPECTED FOR COMPETENCE. /11/
THE RECORD REFLECTED THAT MARCANTONIO WAS ALSO GIVEN A WITHIN GRADE
INCREASE IN PAY SHORTLY AFTER THE MARCH 29-30, 1980 PERIOD (R. EXH. 7).
CI PEACOCK SIGNED THE AUTHORIZATION ON BEHALF OF THE RESPONDENT.
DISCUSSION AND CONCLUSIONS
IN ORDER TO ESTABLISH A VIOLATION OF SECTION 7116(A)(2) THERE MUST BE
A SHOWING THAT THE ALLEGED DISCRIMINATEE WAS ENGAGING IN PROTECTED
ACTIVITY, THAT THE RESPONDENT HAD KNOWLEDGE OF SUCH ACTIVITY, AND THAT
THE RESPONDENT TOOK ACTION AGAINST THE DISCRIMINATEE BECAUSE OF
ANTI-UNION ANIMUS. UNITED STATES DEPARTMENT OF LABOR, 1 FLRA NO. 120
(SEPTEMBER 28, 1979); VETERANS ADMINISTRATION CENTER, LEAVENWORTH,
KANSAS, 1 FLRA NO. 111 (SEPTEMBER 20, 1979); U.S. CUSTOMS SERVICE,
REGION IV, MIAMI, FLORIDA, 1 FLRA NO. 108 (SEPTEMBER 13, 1979). THE
ELEMENT OF DISCRIMINATORY MOTIVATION NEEDED TO ESTABLISH A SECTION
7116(A)(2) VIOLATION MAY BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE. U.S.
CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, SUPRA; VETERANS
ADMINISTRATION CENTER, LEAVENWORTH, KANSAS, SUPRA.
IN THIS CASE THE EPISODE GIVING RISE TO THE COUNSELING IN ISSUE AROSE
DIRECTLY OUT OF INSPECTOR MARCANTONIO'S EFFORTS AS A UNION OFFICIAL
REPRESENTING BARGAINING UNIT MEMBERS. IN FEBRUARY OF 1980 HE INTERPOSED
A COMPLAINT RELATING TO MCCANTS' REPEATED REFERRAL OF AN EXCESSIVE
NUMBER OF PASSENGERS TO SECONDARY INSPECTORS. HIS MENTION OF THE MATTER
OF MARCH 29, 1980 TO CI PEACOCK AND SCI HORTON WAS MERELY A REITERATION
OF HIS EARLIER COMPLAINT. ALTHOUGH THE INITIAL COMPLAINT WAS LODGED
WITH SCI COWAN, THE RECORD REFLECTS THAT SIMILAR COMPLAINTS HAD BEEN
LODGED WITH SCI HORTON BY OTHER BARGAINING UNIT MEMBERS, AND THAT ON
MARCH 30, 1980 SCI COWAN AND CI PEACOCK ACTED JOINTLY DURING THE
COUNSELING OF MARCANTONIO. THUS, THE RECORD MAKES IT CLEAR THAT
MARCANTONIO WAS ENGAGING IN PROTECTED UNION ACTIVITY WHEN HE DISCUSSED
THE SUBJECT WITH CI PEACOCK AND SCI HORTON ON MARCH 29, 1980, AND WHEN
HE DISCUSSED IT AGAIN WITH CI PEACOCK AND SCI COWAN ON MARCH 30, 1980.
OTHER ELEMENTS IN THE RECORD INDICATE THAT THE RESPONDENT'S
REPRESENTATIVES WOULD HAVE HAD TO BE AWARE OF MARCANTONIO'S ROLE IN
EFFORTS TO REMEDY COMPLAINTS AGAINST MCCANTS. THE NATURE OF
MARCANTONIO'S UNION ACTIVITY GENERALLY WAS WELL KNOWN, AND INVOLVED
CONTACTS WITH CI PEACOCK ON MARCH 29 AND 30, 1980, PRIOR TO DISCUSSION
OF THE PROBLEM RELATING TO INSPECTOR MCCANTS. ALTHOUG4 UNNECESSARY TO
RELY UPON INFERENCES JUSTIFYING A FINDING THAT SCI COWAN ACTUALLY
APPRISED CI PEACOCK OF MARCANTONIO'S PRIOR COMPLAINT BEFORE MARCH 29,
1980, SCI COWAN'S TESTIMONY GIVES RISE TO THE POSSIBILITY. MOREOVER, IT
WAS CLEARLY CI PEACOCK'S DUTY TO BE AWARE OF PROBLEMS OF THIS NATURE,
AND CI PEACOCK WAS OFTEN IN THE WORK AREA WHERE CAPIS PROCEDURES WERE
BEING UTILIZED.
MARCANTONIO'S ACT OF INVITING ATTENTION TO THE PROBLEM POSED BY
MCCANTS' CONDUCT PRECIPITATED A PATTERN OF ADMINISTRATIVE ACTION IN
OPPOSITION TO HIS BRINGING THE MATTER TO THE ATTENTION OF THE
RESPONDENT. A CAREFUL REVIEW OF THE RECORD DISCLOSES NUMEROUS REASONS
FOR CONCLUDING THAT THE BASIS FOR CI PEACOCK'S DECISION TO COUNSEL
MARCANTONIO WAS PRETEXTUAL IN NATURE. ALTHOUGH INSPECTOR MARCANTONIO
WAS CRITICIZED FOR FAILING TO COMMUNICATE WITH MCCANTS, SCI COWAN AND
SCI HORTON HAD BOTH PREVIOUSLY DEEMED THE PROBLEM TO BE OF SUFFICIENT
IMPORTANCE TO JUSTIFY THEIR OWN DIRECT PERSONAL INTERVENTION. THIS WAS
MANIFESTED BY THEM SPEAKING TO MCCANTS ABOUT THE MATTER. IT WAS BROUGHT
OUT THAT ONLY A SHORT DISTANCE SEPARATED THE PRIMARY AND SECONDARY
INSPECTORS, AND THAT MCCANTS WOULD HAVE, AT LEAST IN THE CAPIS MODULE
INVOLVED HERE, BEEN IN A POSITION TO OBSERVE THAT SECONDARY INSPECTORS
WERE BEING REFERRED TOO MANY PASSENGERS. THUS THE NEED FOR
COMMUNICATION IN THIS INSTANCE WAS AT LEAST GROSSLY EXAGGERATED ON
NON-EXISTENT.
THE NATURE OF AUTHORITY CONFERRED UPON PRIMARY INSPECTORS BY THE
RESPONDENT INDICATED THAT THEY, AND NOT SECONDARY INSPECTORS, WERE
PERMITTED TO CONTROL THE WORKFLOW, AND THAT IT WAS THEIR TASK TO MAKE
CERTAIN THAT SECONDARIES WERE NOT OVERBURDENED. FURTHER, THE SECONDARY
INSPECTORS WERE OF THE SAME GRADE LEVEL AS THE PRIMARY INSPECTORS, AND
WERE NOT AUTHORIZED TO BECOME INVOLVED IN CASES WHEREIN A PRIMARY
INSPECTOR KNOWINGLY WAS ACTING IMPROPERLY. THE RECORD HERE REFLECTS AN
ABUNDANCE OF EVIDENCE THAT SUCH WAS IN FACT THE CASE, AND FURTHER THAT
RESPONDENT'S REPRESENTATIVES HAD IN FACT TRIED TO REMEDY THE PROBLEM
BEFORE MARCH 29TH.
EVIDENCE OF THE PRETEXTUAL BASIS FOR THE COUNSELING INVOLVED IS ALSO
REFLECTED BY PEACOCK'S UNUSUAL FAILURE TO GATHER FACTS ABOUT THE MATTER
BEFORE COUNSELING MARCANTONIO, ALTHOUGH HE REGULARLY DID SO IN SUCH
CASES; BY HIS OWN ADMISSION THAT MARCANTONIO COULD POSSIBLY HAVE BEEN
FACING A PROBLEM FALLING WITHIN PEACOCK'S SUPERVISORY PURVIEW; AND BY
THE SUBSEQUENT HIGH PERFORMANCE RATING RECEIVED BY MARCANTONIO DESPITE
PEACOCK'S PROTESTATIONS THAT MARCANTONIO'S SHORTCOMINGS WERE SERIOUS IN
NATURE.
BASED UPON THE KNOWLEDGE OF INSPECTOR MARCANTONIO'S UNION ACTIVITY,
THE TIMING OF ADMINISTRATIVE ACTION TAKEN AGAINST HIM, AND THE LACK OF
ANY CREDIBLE AND PERSUASIVE REASON THEREFOR, IT IS, DETERMINED THAT CI
PEACOCK'S COUNSELING OF INSPECTOR MARCANTONIO WAS MOTIVATED SOLELY BY
ANTI-UNION CONSIDERATIONS AND TAKEN AS A REPRISAL AND RETALIATION FOR
HIS UNION ACTIVITY. ACCORDINGLY, IT IS DETERMINED THAT THE CONDUCT OF
CI PEACOCK CONSTITUTES A VIOLATION OF SECTION 7116(A)(2) OF THE STATUTE.
SINCE ANY VIOLATION OF SECTION 7116(A) OTHER THAN SECTION 7116(A)(1),
NECESSARILY TENDS TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE, THE CONDUCT
DESCRIBED IS ALSO A VIOLATION OF SECTION 7116(A)(1).
HAVING FOUND THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (2)
IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA SHALL:
1. CEASE AND DESIST FROM:
(A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY COUNSELING
ALBERT MARCANTONIO, OR
OTHER REPRESENTATIVE OF THE NATIONAL TREASURY EMPLOYEES UNION AS
REPRISAL OR RETALIATION FOR
ASSISTING BARGAINING UNIT EMPLOYEES IN THE PRESENTATION OF A
COMPLAINT OR GRIEVANCE AGAINST
THE RESPONDENT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) REMOVE OR EXPUNGE FROM ITS FILES THE FIRST AND THIRD PARAGRAPHS
OF THE MARCH 30, 1980
RECORD OF COUNSELING EXECUTED BY CHIEF INSPECTOR BOBBIE R. PEACOCK
IN CONNECTION WITH HIS
MARCH 30, 1980 COUNSELING OF ALBERT MARCANTONIO.
(B) POST AT ALL UNITED STATES CUSTOMS SERVICE, REGION IV, MIAMI,
FLORIDA FACILITIES AND
INSTALLATIONS 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
REGIONAL COMMISSIONER 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. THE REGIONAL COMMISSIONER SHALL
TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
OTHER MATERIAL.
(C) NOTIFY THE 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.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 10, 1981
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES 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 DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
COUNSELING ALBERT MARCANTONIO, OR OTHER REPRESENTATIVE OF THE NATIONAL
TREASURY EMPLOYEES UNION AS REPRISAL OR RETALIATION FOR ASSISTING
BARGAINING UNIT EMPLOYEES IN THE PRESENTATION OF A COMPLAINT OR
GRIEVANCE AGAINST THE RESPONDENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL REMOVE OR EXPUNGE FROM OUR FILES THE FIRST AND THIRD
PARAGRAPHS OF THE MARCH 30, 1980 RECORD OF COUNSELING EXECUTED BY CHIEF
INSPECTOR BOBBIE R. PEACOCK IN CONNECTION WITH HIS MARCH 30, 1980
COUNSELING OF ALBERT MARCANTONIO.
(AGENCY OR ACTIVITY)
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
MATERIALS.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: SUITE 501, 1776 PEACHTREE STREET, N.W., NORTH WING,
ATLANTA, GEORGIA 30309, AND WHOSE TELEPHONE NUMBER IS: (404) 881-2324.
--------------- FOOTNOTES: ---------------
/1/ THE EVENTS OCCURRING HEREIN RELATE TO ACTIVITY AT RESPONDENT'S
ATLANTA, GEORGIA LOCATION IN REGION IV.
/2/ DURING THE SAME COUNSELING SESSION MARCANTONIO WAS ALSO
CRITICIZED FOR FAILURE TO MEET AN INCOMING FLIGHT FOR THE PURPOSE OF
PERFORMING INSPECTION DUTIES. HOWEVER, COUNSEL FOR THE GENERAL COUNSEL
DOES NOT QUESTION THIS ELEMENT OF RESPONDENT'S ADMINISTRATIVE ACTION AND
SEEKS NO REMEDY REGARDING THIS FACET OF THE COUNSELING (TR. 32, 78-79).
/3/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. EXH. " OR "R.
EXH. ."
/4/ PEACOCK TESTIFIED THAT HE WAS UNABLE TO RECALL THE MARCH 29 AND
30, 1980 CONVERSATIONS RELATING TO UNION BUSINESS. HOWEVER, WITH REGARD
TO THE MARCH 29TH CONVERSATION, HE ACKNOWLEDGED THAT IT COULD HAVE
OCCURRED (TR. 159-160).
/5/ HORTON EXPLAINED THAT HE DID NOT FEEL THAT CRAIG SHOULD HAVE BEEN
COUNSELED FOR NOT COMMUNICATING HER COMPLAINT DIRECTLY TO MCCANTS
BECAUSE CRAIG WAS A NEW CUSTOMS INSPECTOR (TR. 374). HOWEVER, AS NOTED,
HORTON DID NOT INSTRUCT CRAIG TO COMMUNICATE WITH MCCANTS, AND FURTHER
HE DETERMINED THAT IT WAS A MATTER OF SUFFICIENT CONCERN TO WARRANT HIS
OWN INTERVENTION AS A SUPERVISOR. THUS, HORTON'S TESTIMONY THAT CRAIG
WAS INVOLVED IN POSSIBLE MISCONDUCT STEMMING FROM A FAILURE TO
COMMUNICATE WITH MCCANTS IN THIS SITUATION IS DEEMED DISCREDITED BY
PEACOCK'S OWN TESTIMONY.
/6/ HE NOTED THAT THIS WAS APPROPRIATE BECAUSE MARCANTONIO WAS
OTHERWISE ENGAGED AND THAT IT WOULD HAVE BEEN DISRUPTIVE TO THE
INSPECTION PROCEDURE IF MARCANTONIO WERE ALLOWED TO LEAVE HIS SECONDARY
POSITION TO SPEAK TO MCCANTS (TR. 333-334, 351). HOWEVER, IT ALSO
APPEARED THAT HE DEEMED IT A MATTER OF SUPERVISORY CONCERN (TR. 345,
348).
/7/ PEACOCK ACKNOWLEDGED THAT HE WAS THEN AWARE THAT MARCANTONIO WAS
THE PRESIDENT OF THE UNION (TR. 287).
/8/ ALTHOUGH CI PEACOCK'S RECORD OF THE MARCH 29, 1980 CONVERSATION
INDICATES THAT HORTON "ADVISED" MARCANTONIO TO COMMUNICATE DIRECTLY WITH
MCCANTS (G.C. EXH. 8), THE RECORD REFLECTS THAT THIS WAS NO MORE THAN A
GENERAL SUGGESTION, AND FURTHER THAT MARCANTONIO WAS NOT SPECIFICALLY
DIRECTED TO CONFER WITH MCCANTS ABOUT THE MATTER (TR. 117, 130-131).
/9/ COWAN TESTIFIED THAT HE COULD NOT RECALL WHETHER HE ADVISED
PEACOCK CONCERNING MARCANTONIO'S PRE-MARCH 29TH COMPLAINT ABOUT MCCANTS
(TR. 335). HE SUBSEQUENTLY SAID THAT HE DID NOT THINK THAT IT WAS
NECESSARY AT THAT TIME (TR. 345). IN HIS FINAL VERSION OF EVENTS HE
TESTIFIED THAT HE MIGHT HAVE DISCUSSED THE MCCANTS PROBLEM WITH PEACOCK
PRIOR TO THE COUNSELING SESSION (TR. 349-350).
/10/ ONLY PARAGRAPHS ONE AND THREE OF THE RECORD OF COUNSELING RELATE
TO THE PORTIONS OF THE COUNSELING SESSION REFERRED TO IN THE COMPLAINT
(G.C. EXH. 8).
/11/ INSPECTOR MARCANTONIO'S APPRAISAL FOR THE PRECEDING YEAR WAS
SUBSTANTIALLY THE SAME IN ALL CATEGORIES (TR. 152-153, 290-291).