[ v02 p54 ]
02:0054(7)CA
The decision of the Authority follows:
2 FLRA No. 7
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON
Respondent
and
BREMERTON METAL TRADES COUNCIL,
AFL-CIO
Complainant
Assistant Secretary
Case Nos. 71-4280(CA)
71-4333(CA)
DECISION AND ORDER
ON MARCH 7, 1979, ADMINISTRATIVE LAW JUDGE THOMAS SCHNEIDER ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT RESPONDENT HAD ENGAGED IN SOME OF THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT CERTAIN OTHER
ALLEGED UNFAIR PRACTICES BE DISMISSED. THEREAFTER, THE RESPONDENT FILED
TIMELY EXCEPTIONS ONLY TO THAT PORTION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER PERTAINING TO HIS FINDING THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) BY ITS ACTION IN SUSPENDING
EMPLOYEE JOHN CLEARY.
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 RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). 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 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, INCLUDING THE RESPONDENT'S EXCEPTIONS AND SUPPORTING BRIEF, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION AS MODIFIED BELOW.
THE ADMINISTRATIVE LAW JUDGE (ALJ) FOUND AS VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER THE TWO DAY SUSPENSION OF A UNION STEWARD WHO HAD
BEEN DISCIPLINED BECAUSE OF HIS REMARKS TO THE GENERAL FOREMAN WHILE
REPRESENTING ANOTHER EMPLOYEE. THE ALJ CONCLUDED THAT THE UNION
STEWARD'S IMPULSIVE LANGUAGE AROSE FROM HIS FRUSTRATION AT TRYING TO
INTERVIEW AN EMPLOYEE REGARDING A GRIEVANCE, AND, THUS, CAME WITHIN THE
DEFINITION OF "ROBUST DEBATE," WHICH THE ALJ CONSIDERED TO BE PROTECTED
ACTIVITY UNDER THE ORDER. WHILE THE AUTHORITY AGREES WITH THE ALJ THAT
THE RESPONDENT VIOLATED THE ORDER IN DISCIPLINING THE UNION STEWARD FOR
HIS IMPULSIVE LANGUAGE, IT REACHES THIS CONCLUSION FOR DIFFERENT
REASONS.
IN THE AUTHORITY'S VIEW FLAGRANT MISCONDUCT BY AN EMPLOYEE, EVEN
THOUGH OCCURRING DURING THE COURSE OF PROTECTED ACTIVITY, MAY JUSTIFY
DISCIPLINARY ACTION BY THE EMPLOYER. ON THE OTHER HAND, NOT EVERY
IMPROPRIETY COMMITTED DURING SUCH ACTIVITY IS BEYOND THE AMBIT OF
PROTECTED ACTIVITY. THE EMPLOYEE'S RIGHT TO ENGAGE IN PROTECTED
ACTIVITY PERMITS LEEWAY FOR IMPULSIVE BEHAVIOR, WHICH IS BALANCED
AGAINST THE EMPLOYER'S RIGHT TO MAINTAIN ORDER AND RESPECT OF ITS
SUPERVISORY STAFF ON THE JOB SITE. THE AUTHORITY NEITHER DEFENDS NOR
ENDORSES THE USE OF INTEMPERATE LANGUAGE IN THE CONDUCT OF LABOR
MANAGEMENT RELATIONS IN THE FEDERAL SECTOR. HOWEVER, UNDER THE
CIRCUMSTANCES OF THIS CASE, THE AUTHORITY FINDS THAT THE NATURE OF THE
STEWARD'S CONDUCT AND LANGUAGE WAS NOT SUFFICIENTLY FLAGRANT TO JUSTIFY
REMOVING IT FROM THE AMBIT OF PROTECTED ACTIVITY. IN THIS REGARD, THE
AUTHORITY NOTES THE UNCONTESTED FINDINGS AND CONCLUSIONS OF THE ALJ TO
THE EFFECT THAT FOR A PERIOD OF APPROXIMATELY ONE MONTH IMMEDIATELY
PRECEEDING THE INCIDENT THE RESPONDENT, AND MOST PARTICULARLY THE
GENERAL FOREMAN, HAD ENGAGED IN A PERVASIVE COURSE OF CONDUCT
CONSTITUTING, AMONG OTHER THINGS, INTERFERENCE WITH, RESTRAINT AND
COERCION OF EMPLOYEES AND UNION STEWARDS IN THE EXERCISE OF THEIR
PROTECTED RIGHT TO UTILIZE THE CONTRACTUALLY ESTABLISHED GRIEVANCE
PROCEDURE. IN THESE CIRCUMSTANCES, THE AUTHORITY CONCLUDES THAT THE
STEWARD'S CONDUCT WAS NOT SUFFICIENTLY FLAGRANT TO REMOVE IT FROM THE
AMBIT OF PROTECTED ACTIVITY, AND, IN AGREEMENT WITH THE ALJ, FINDS THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) OF THE EXECUTIVE ORDER 11491,
AS AMENDED, BY SUSPENDING HIM FOR SUCH CONDUCT. /1/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS TO UTILIZE THE CONTRACTUALLY ESTABLISHED
GRIEVANCE PROCEDURE.
(B) DISCOURAGING EMPLOYEE HESTAND, OR ANY OTHER EMPLOYEE, FROM
MEMBERSHIP IN A LABOR ORGANIZATION BY EXCESSIVE ASSIGNMENT TO ONEROUS OR
UNDESIRABLE WORK DUTIES.
(C) SPONSORING, CONTROLLING, OR OTHERWISE ASSISTING A LABOR
ORGANIZATION, EXCEPT AS PERMITTED BY THE EXECUTIVE ORDER.
(D) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE PURPOSES
OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) MAKE WHOLE, CONSISTENT WITH APPLICABLE LAW AND REGULATIONS, ANY
LOSS OF INCOME EMPLOYEE JOHN CLEARY MAY HAVE SUFFERED BY REASON OF HIS
TWO DAY SUSPENSION, ON OR ABOUT JANUARY 12, 1977, FOR ALLEGED
INSUBORDINATION.
(B) REMOVE OR EXPUNGE ALL REFERENCES TO THE TWO DAY SUSPENSION
SUFFERED BY EMPLOYEE JOHN CLEARY FROM HIS PERSONNEL FILE AND FROM ANY
OTHER DOCUMENTS IN THE POSSESSION OR CONTROL OF THE ACTIVITY IN WHICH
SUCH REFERENCE MAY APPEAR.
(C) POST IN ITS FACILITY AT BREMERTON, WASHINGTON, 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 COMMANDER OF THE PUGET SOUND NAVAL SHIPYARD AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) 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.
IT IS FURTHER ORDERED THAT ALL OTHER ALLEGATIONS IN THE COMPLAINTS IN
CASE NOS. 71-4280(CA) AND 71-4333(CA) BE, AND THEY HEREBY ARE,
DISMISSED. /2/
ISSUED, WASHINGTON, D.C., NOVEMBER 2, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /3/
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 RIGHTS TO UTILIZE THE CONTRACTUALLY ESTABLISHED
GRIEVANCE PROCEDURE.
WE WILL NOT DISCOURAGE EMPLOYEE HESTAND, OR ANY OTHER EMPLOYEE, FROM
MEMBERSHIP IN A LABOR ORGANIZATION BY EXCESSIVE ASSIGNMENT TO ONEROUS OR
UNDESIRABLE WORK DUTIES.
WE WILL NOT SPONSOR, CONTROL OR OTHERWISE ASSIST A LABOR ORGANIZATION
EXCEPT AS PERMITTED BY THE EXECUTIVE ORDER.
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
EXECUTIVE ORDER.
WE WILL MAKE WHOLE, CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS,
ANY LOSS OF INCOME EMPLOYEE JOHN CLEARY MAY HAVE SUFFERED BY REASON OF
HIS TWO DAY SUSPENSION, ON OR ABOUT JANUARY 12, 1977, FOR ALLEGED
INSUBORDINATION.
WE WILL REMOVE OR EXPUNGE ALL REFERENCES TO THE TWO DAY SUSPENSION
SUFFERED BY EMPLOYEE JOHN CLEARY FROM HIS PERSONNEL FILE AND FROM ANY
OTHER DOCUMENTS IN OUR PERSONNEL FILE AND FROM ANY OTHER DOCUMENTS IN
OUR POSSESSION OR CONTROL IN WHICH SUCH REFERENCE MAY APPEAR.
(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
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 450 GOLDEN GATE AVENUE, ROOM 11408, P.O. BOX 36016, SAN
FRANCISCO, CALIFORNIA 94102, AND WHOSE TELEPHONE NUMBER IS: (415)
556-8105.
W. DON WILSON
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN PERSONNEL
WESTERN FIELD DIVISION
DEPARTMENT OF THE NAVY
525 MARKET STREET, SUITE 3522
SAN FRANCISCO, CALIFORNIA 94105
FOR THE RESPONDENT
JON HOWARD ROSEN
ATTORNEY AT LAW
27TH FLOOR, SMITH TOWER BUILDING
506 SECOND AVENUE
SEATTLE, WASHINGTON 98104
FOR THE COMPLAINANT
BEFORE: THOMAS SCHNEIDER
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS
AMENDED; THE NOTICE OF THE HEARING WAS ISSUED BY A REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR; AND THE PROCEEDING WAS CONDUCTED BEFORE THE
ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS. THIS DECISION,
PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44,
NO. 1, JANUARY 2, 1979, PAGES 7-8, IS ISSUED IN THE NAME OF THE
AUTHORITY AND, IN ACCORDANCE WITH SEC. 2400.2 (5 C.F.R. SEC. 2400.2) OF
THE TRANSITION RULES AND REGULATIONS, SHALL BE PROCESSED BY THE
AUTHORITY IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, TITLE 29, CODE OF FEDERAL
REGULATIONS, PART 201, ET SEQ., EXCEPT THAT THE WORD "AUTHORITY" SHALL
BE SUBSTITUTED WHEREVER THE WORDS "ASSISTANT SECRETARY" APPEAR IN THE
RULES AND REGULATIONS OF THE OFFICE OF THE ASSISTANT SECRETARY.
DECISION AND ORDER
THE BREMERTON METAL TRADES COUNCIL ("UNION" OR "COUNCIL") FILED TWO
COMPLAINTS AGAINST THE PUGET SOUND NAVAL SHIPYARD ("ACTIVITY"). THE
COMPLAINT IN CASE NUMBER 71-4280(CA) WAS FILED JUNE 6, 1977 AND THE
COMPLAINT IN CASE NUMBER 71-4333(CA) WAS FILED AUGUST 10, 1977. THE
LATTER COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED SUBSECTIONS (1), (2)
AND (4) OF SECTION 19(A) OF EXECUTIVE ORDER 11491, AS AMENDED ("THE
ORDER"), BY SUSPENDING JOHN E. CLEARY AND BY TERMINATING THE EMPLOYMENT
OF JOSEPH E. PITTSON. THE COMPLAINT IN CASE 71-4280(CA) ALLEGED THAT
THE ACTIVITY VIOLATED SUBSECTIONS (1), (2), (4), (5) AND (6) OF SECTION
19(A) OF THE ORDER, IN A SERIES OF INCIDENTS BETWEEN OCTOBER 1, 1976 AND
FEBRUARY 4, 1977, AS WELL AS BY THE ACTIONS TAKEN AGAINST CLEARY AND
PITTSON.
ON FEBRUARY 24, 1978, THE REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT
SERVICES, AFTER INVESTIGATING, DISMISSED THE COMPLAINT IN CASE
71-4333(CA) IN ITS ENTIRETY AND DISMISSED A LARGE PORTION OF THE
COMPLAINT IN CASE 71-4280(CA).
UPON REVIEW ON JUNE 19, 1978, THE ASSISTANT SECRETARY OF LABOR AGREED
WITH THE REGIONAL ADMINISTRATOR RESPECTING THE DISCHARGE OF JOSEPH
PITTSON, AND HELD THAT SUCH DISCHARGE COULD NOT BE HELD VIOLATIVE OF THE
ORDER SINCE THAT ISSUE COULD PROPERLY BE RAISED UNDER AN APPEALS
PROCEDURE. SEC. 19(D). /4/ HOWEVER, THE ASSISTANT SECRETARY HELD THAT
ALL OTHER ALLEGATIONS OF BOTH COMPLAINTS SHOULD BE RESOLVED ON THE BASIS
OF EVIDENCE ADDUCED AT A HEARING.
SUCH A HEARING WAS HELD BEFORE ME IN BREMERTON, WASHINGTON, ON
SEPTEMBER 11, 12, 13, 21 AND 22, 1978. THE LAST BRIEFS WERE FILED ON
DECEMBER 11, 1978.
FINDINGS OF FACT AND CONCLUSIONS
BACKGROUND
THE ACTIVITY HAS ACCORDED THE UNION EXCLUSIVE RECOGNITION, AND HAS
ENTERED INTO A NEGOTIATED AGREEMENT WITH IT, WHICH WAS IN EFFECT AT ALL
MATERIAL TIMES.
FOR SEVERAL MONTHS PRIOR TO AUGUST 1976, SEVERAL PERSONS IN THE
WELDING SHOP (SHOP 26 OR 926) AT THE ACTIVITY BELIEVED THEY WERE DOING
WORK AT A HIGHER LEVEL THAN THEY WERE BEING PAID FOR. A PERSON AT A
LOWER CLASSIFICATION CAN GET PROMOTED TO A HIGHER CLASSIFICATION. BUT
EVEN WITHOUT BEING PROMOTED, IF A PERSON PERFORMS THE HIGHER
CLASSIFICATION WORK FOR MORE THAN TWO WEEKS HE IS ENTITLED TO A
TEMPORARY PROMOTION-- I.E., HIGHER PAY DURING THE TIME HE PERFORMS THE
WORK AT THE HIGHER LEVEL. (ART. EIGHTEEN, R-A.) /5/
IN ORDER TO INVESTIGATE SUCH COMPLAINTS AND TO ASSIST WITH ANY
GRIEVANCES SUCH COMPLAINTS MIGHT LEAD TO, THE PRESIDENT OF THE COUNCIL
APPOINTED JOSEPH E. PITTSON TO THE POST OF SHOP STEWARD, AND INFORMED
THE ACTIVITY OF HIS APPOINTMENT ON SEPTEMBER 24, 1976 (C-1).
THE ISSUES
IN A LETTER ACCOMPANYING THE NOTICE OF HEARING, DATED AUGUST 11,
1978, THE REGIONAL ADMINISTRATOR FOCUSED ON 26 ISSUES CONCERNING WHICH
HE THOUGHT EVIDENCE SHOULD BE INTRODUCED. THAT LETTER WAS INTRODUCED AS
ALJ EXHIBIT #1, AND THE ISSUES NUMBERED CONSECUTIVELY IN THE MARGIN. I
FOUND THIS SYSTEM OF IDENTIFYING THE ISSUES USEFUL AT TRIAL AND WILL USE
IT IN THE FOLLOWING DISCUSSION. FOR CONVENIENCE, I WILL RESTATE THE
REGIONAL ADMINISTRATOR'S STATEMENT AT THE BEGINNING OF THE DISCUSSION OF
EACH ISSUE.
(1) WERE SECTIONS 19(A)(1) AND (2) OF THE ORDER VIOLATED WHEN FOREMAN
WELDER NULL PREPARED
AN ALLEGED 'POOR' WORK PERFORMANCE APPRAISAL ON A MERIT PROMOTION
APPLICATION FILED BY FORMER
SHOP STEWARD PITTSON?
ONE OF THE WORKERS DESIRING A PROMOTION WAS THE SAME JOSEPH E.
PITTSON, WHO WAS APPOINTED SHOP STEWARD AS MENTIONED ABOVE. HE WAS A
WELDER-LIMITED (WG-8) AND FILED FOR JOURNEYMAN (WG-10) IN APRIL 1976.
ON AUGUST 30 HE WAS FOUND ELIGIBLE FOR WG-10, BUT THE REGISTER WAS
CLOSED. IN SEPTEMBER 1976, PITTSON FILED A NEW APPLICATION. SHORTLY
THEREAFTER, ON OCTOBER 1, 1976, HE WAS EVALUATED AS "JUST BARELY AN
AVERAGE WORKER." THE ACTIVITY CONTENDS THAT THIS IS NOT A "POOR"
APPRAISAL, BUT THAT IN ANY EVENT, IT IS ACCURATE.
THE UNION POINTS OUT THAT IT FOLLOWED SHORTLY AFTER PITTSON WAS
APPOINTED STEWARD TO DEAL WITH WELDER COMPLAINTS, AND THAT PITTSON HAD
PREVIOUSLY BEEN FOUND ELIGIBLE FOR WG-10. THE PAPERS CONCERNING THAT
ELIGIBILITY WERE DESTROYED. THE TESTIMONY OF MR. BLAKEY, HEAD OF THE
ACTIVITY'S PERSONNEL OPERATIONS DIVISION (TR. 843-841), MADE IT CLEAR
THAT THIS DESTRUCTION WAS NOT ROUTINE. NEVERTHELESS IT IS NOT CLEAR
THAT UNION ANIMUS WAS THE MOTIVE BEHIND THE RATING. THE OBVIOUS REASON
FOR A NEW EVALUATION SHORTLY AFTER BEING NOTED "ELIGIBLE" WAS THAT
PITTSON HAD AGAIN APPLIED FOR A PROMOTION (TR. 190).
THERE IS NO NECESSARY INCONSISTENCY BETWEEN THE "ELIGIBLE" RATING IN
AUGUST 1976 (C-10) AND THE "BARELY AVERAGE" APPRAISAL (R-C) PITTSON GOT
IN OCTOBER. CREDITING MR. MCFALL'S STATEMENT (R-C) THAT PITTSON WAS
RANKED 15TH AND 16TH OUT OF 16 IN THE LIST OF ELIGIBLES IN MAY AND JULY
1976, I CONCLUDE THAT THE "BARELY AVERAGE" APPRAISAL WAS, IF NOT
ACCURATE, AT LEAST CONSISTENT WITH THE PREVIOUS APPRAISALS. THEREFORE I
FIND NO VIOLATION OF THE ORDER IN THIS REGARD.
(2) WERE SECTIONS 19(A)(1) AND (2) OF THE ORDER VIOLATED ON OR ABOUT
OCTOBER 4, 1976, WHEN
PITTSON WAS ISSUED A LETTER OF CAUTION AND REQUIREMENT REGARDING THE
ABUSE OF SICK LEAVE?
ON OCTOBER 4, 1976, PITTSON RECEIVED A LETTER OF CAUTION AND
REQUIREMENT TELLING HIM THAT HE WOULD NEED A DOCTOR'S NOTE FOR ANY DAYS
THAT HE TOOK SICK LEAVE.
PITTSON HIMSELF TESTIFIED THAT HE TOOK A LOT OF SICK LEAVE PRIOR TO
NOVEMBER 1976, BECAUSE OF A SHOULDER PROBLEM (TR. 255). THE UNION
CONTENDS THAT HE SHOULD HAVE BEEN ADVISED VERBALLY PRIOR TO BEING ISSUED
A LETTER OF CAUTION AND REQUIREMENT (R-A, ART. TWELVE, SECTION 5). THE
EVIDENCE SHOWS HE WAS ADVISED, ALTHOUGH SEVERAL MONTHS PREVIOUSLY (TR.
430). WHETHER SUCH WARNING COMPLIES WITH THE NEGOTIATED AGREEMENT IS A
QUESTION OF "ARGUABLE INTERPRETATION," AND THEREFORE NOT APPROPRIATE FOR
RESOLUTION BY ME. SEE, DEPARTMENT OF THE ARMY, WATERVLIET ARSENAL AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 2352,
A/SLMR NO. 624(1976); DEPARTMENT OF HEALTH, EDUCATION AND WELFARE AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1802, AFL-CIO, A/SLMR
NO. 1168(1978). BUT EVEN IF IT WERE, I WOULD FIND NO VIOLATION OF THE
ORDER. THE REQUIREMENT STATED IN THE LETTER WAS NOT PARTICULARLY
BURDENSOME-- MERELY TO SUBSTANTIATE SICK LEAVE WITH A DOCTOR'S NOTE.
SUCH A REQUIREMENT SEEMS REASONABLE IN LIGHT OF THE FACT THAT PITTSON
TOOK APPROXIMATELY 15 DAYS OF SICK LEAVE IN THE FIRST NINE MONTHS OF
1976 ON DAYS IMMEDIATELY PRECEDING OR FOLLOWING A SATURDAY OR SUNDAY OR
OTHER SICK LEAVE DAY (R-D).
(3) WAS SECTION 19(A)(1) OF THE ORDER VIOLATED ON OCTOBER 13, 1976,
WHEN PITTSON WAS DENIED
THE RIGHT TO SEE THEN CHIEF STEWARD JOHN CLEARY REGARDING THE
CANCELLATION OF HIS ANNUAL
LEAVE?
JOHN CLEARY WAS CHIEF SHOP STEWARD OF THE MACHINISTS LOCAL, AND
SECRETARY OF THE COUNCIL, AND WAS THE PERSON WHO SUGGESTED THAT PITTSON
BE MADE A STEWARD. LATER, IN DECEMBER, CLEARY WAS ELECTED PRESIDENT OF
THE COUNCIL.
PITTSON HAD APPLIED FOR LEAVE FROM SATURDAY, OCTOBER 16 THROUGH
SUNDAY, OCTOBER 24, TO GO HUNTING. THIS HAD APPARENTLY BEEN GRANTED.
ON WEDNESDAY, OCTOBER 13, SAID LEAVE WAS CANCELLED. AFTER SOME
DISCUSSION BETWEEN PITTSON, CLEARY, GENERAL FOREMAN MEE, AND PITTSON'S
FOREMAN, HENSHAW, THE LEAVE WAS RESTORED.
THE EVIDENCE THUS SHOWS THAT PITTSON IN FACT SAW CLEARY ABOUT THIS
INCIDENT (TR. 203, 691). THEREFORE THERE IS NO VIOLATION OF THE ORDER.
(4) WERE SECTIONS 19(A)(1), (2) AND (3) OF THE ORDER VIOLATED ON OR
ABOUT NOVEMBER 5, 1976,
BY THE THREATENING ACTIONS OF GENERAL FOREMAN RUNTE AND, IN A
SEPARATE INCIDENT, THE ACTIONS
OF WELDER FOREMAN INGRAHAM AND SHOP SUPERINTENDENTS GURLEY, TOWERS,
AND KIDRICK WHILE PITTSON
WAS REPRESENTING EMPLOYEE HESTAND? WERE THE ABOVE SECTIONS VIOLATED
BY THE ALLEGED
THREATENING ACTIONS OF SUPERVISORS ROWLAND, HUGHES, COOPER AND
HENSHAW LATER ON THAT SAME DAY
AS PITTSON WAS ABOUT TO LEAVE WORK?
IN THE MORNING ON FRIDAY, NOVEMBER 5, 1976, AT 0740 HOURS PITTSON
OBTAINED A SLIP FROM HENSHAW, HIS ACTING FOREMAN, AUTHORIZING PITTSON TO
GO TO A MEETING AT THE UNION OFFICE AT 1220 HOURS. AT THAT MEETING
PITTSON OBTAINED A LIST OF PEOPLE TO SEE IN CONNECTION WITH HIS
INVESTIGATION. HE RETURNED AT 1330 HOURS TO ARRANGE TO SEE THE PEOPLE
INVOLVED. ACTING FOREMAN HENSHAW WAS NOT THERE, BUT SUPERINTENDENT
HUGHES WAS. HUGHES WANTED THE NAMES OF THE INDIVIDUALS TO BE SEEN AND
DECIDED IT WOULD BE EASIER FOR PITTSON TO INTERVIEW THE ONES WHO WERE
WORKING ON THE CARRIER KITTY HAWK ALL TOGETHER AND DENIED PERMISSION FOR
PITTSON TO SEE THEM SINGLY AT THAT TIME. PITTSON WANTED TO SEE AT LEAST
TWO OTHER INDIVIDUALS: POTTER, WHO WAS ABOUT TO GO ON LEAVE, AND
HESTAND, WHO WAS NOT ABOARD THE KITTY HAWK. THERE WAS SOME CONFLICT IN
THE TESTIMONY AS TO WHETHER HUGHES GAVE PITTSON PERMISSION TO VISIT THE
SACRAMENTO WHERE HESTAND WAS, OR ONLY TO CALL. IN ANY EVENT, PITTSON
WENT TO THE KITTY HAWK TO SEE POTTER AND THEN TO THE SACRAMENTO /6/ TO
SEE HESTAND.
WHILE PITTSON WAS ABOARD THE SACRAMENTO, INGRAHAM, HESTAND'S FOREMAN,
CALLED HUGHES AND ASKED HIM WHETHER HE HAD GIVEN PERMISSION TO PITTSON
TO BE ABOARD THE SACRAMENTO, LOCATED A CONSIDERABLE DISTANCE FROM HIS
WORKSITE. HUGHES SAID, "NO." INGRAHAM REPORTED TO HIS GENERAL FOREMAN
I, RUNTE. RUNTE CALLED HENSHAW, PITTSON'S ACTING FOREMAN, TO VERIFY
THAT PITTSON HAD NO PERMISSION TO BE ABOARD THE SACRAMENTO. THEREUPON
RUNTE AND INGRAHAM APPROACHED PITTSON AND HESTAND.
THE OSTENSIBLE REASON FOR FOREMAN I, RUNTE TO BE CONCERNED THAT
PITTSON WAS ON BOARD THE SACRAMENTO WAS THAT IT WAS OUT OF HIS
TERRITORY. THE SACRAMENTO WAS MORE THAN HALF A MILE FROM PITTSON'S
WORKSITE. THE PREVAILING PRACTICE WAS TO HAVE THOSE STEWARDS HANDLE
GRIEVANCES WHO WERE LOCATED NEARBY. HOWEVER, FROM ALL THE EVIDENCE IT
APPEARS TO ME THAT MR. RUNTE WAS MORE UPSET ABOUT PITTSON'S PRESENCE
THAN A TECHNICAL VIOLATION OF RULES WOULD WARRANT. BOTH HESTAND AND
PITTSON TESTIFIED THAT WHEN RUNTE APPROACHED THEM RUNTE WAS EXCITED AND
SHAKING HIS FINGER OR FIST AT PITTSON BEFORE THE LATTER HAD SAID
ANYTHING.
RUNTE ASKED PITTSON WHAT HE WAS DOING ABOARD THE SHIP, TO WHICH
PITTSON REPLIED THAT HE WAS ON UNION BUSINESS. RUNTE ORDERED PITTSON TO
LEAVE THE SHIP. PITTSON SAID, "YOU ARE NOT MY FOREMAN." RUNTE REPEATED
HIS ORDER, SHAKING HIS FINGER AT PITTSON. PITTSON REPEATED THAT HE WAS
ON UNION BUSINESS. IT WAS CLOSE TO QUITTING TIME. RUNTE WAS ANGRY. HE
AND INGRAHAM LEFT. PITTSON WAS ANGRY TOO, AND SHAKEN.
I CONCLUDE THAT IT WAS NOT PITTSON'S DISOBEDIENCE OF A DIRECT ORDER
THAT FIRST INFURIATED RUNTE, ALTHOUGH IT UNDOUBTEDLY MADE THE SITUATION
WORSE, BUT PITTSON'S VERY PRESENCE. FURTHERMORE, I CREDIT PITTSON'S
TESTIMONY THAT RUNTE SAID, "YOU CAN STICK THE UNION," (TR. 226) WHEN
PITTSON SOUGHT TO TAKE COVER UNDER THE TERMS OF THE UNION CONTRACT. I
CONCLUDE THAT MR. RUNTE'S CONDUCT HAD THE EFFECT OF INTIMIDATING BOTH
MR. HESTAND AND PITTSON. IN FACT, HESTAND TESTIFIED THAT IF FILING A
COMPLAINT RESULTED IN SUCH A HASSLE "IT WASN'T EVEN REALLY WORTH IT"
(TR. 73). THEREFORE SECTIONS 19(A)(1) AND (2) WERE VIOLATED.
THERE WAS SOME EVIDENCE CONCERNING "THE ACTIONS OF WELDER FOREMAN
INGRAHAM, AND SHOP SUPERINTENDENTS GURLEY, TOWERS, AND KIDRICK,"
DESCRIBED IN THE REGIONAL ADMINISTRATOR'S LETTER, BUT THOSE ACTIONS WERE
OVERSHADOWED BY RUNTE'S CONDUCT AND I FIND NO SEPARATE VIOLATION OF THE
ORDER.
AFTER THE HEATED EXCHANGE BETWEEN RUNTE AND PITTSON, PITTSON WENT TO
THE KITTY HAWK TO MUSTER OUT. THERE HE WAS MET BY ROWLAND WHO WAS
GENERAL FOREMAN II, AND THUS RUNTE'S AND HUGHES' SUPERVISOR, BY HUGHES,
WHO WAS ON THAT DAY ACTING GENERAL FOREMAN, AND THUS HENSHAW'S
SUPERVISOR, AND BY HENSHAW, WHO WAS ACTING FOREMAN AND PITTSON'S
SUPERVISOR. THERE WERE OTHER PEOPLE THERE TOO, BUT THEY PLAYED NO PART
IN THE CONFRONTATION THAT FOLLOWED. HUGHES TOLD PITTSON HE HAD BEEN OFF
THE JOB AND MIGHT BE SUBJECT TO DISCIPLINE (TR. 699). HENSHAW ASKED FOR
PITTSON'S PASS AND ASKED HOW COME IT WASN'T SIGNED. PITTSON SAID HE
DIDN'T HAVE MUCH TIME TO TALK, AND HE DIDN'T NEED THIS JOB. THEN HE
SAID, "I'LL TAKE CARE OF THIS (OR YOU) OUTSIDE." HE THEN LEFT ON
VACATION. CONSIDERING THAT PITTSON HAD JUST REFUSED TO OBEY THE DIRECT
ORDER OF A GENERAL FOREMAN, AND THAT HUGHES AND HENSHAW HAD BEEN ALERTED
OF THIS BY RUNTE, THE SUPERVISORS' CONDUCT AT THE MUSTERING-OUT POINT IS
UNDERSTANDABLE, AND PROPER. I AM FORECLOSED FROM DECIDING WHETHER
PITTSON'S STATEMENT OR THREAT WARRANTED HIS DISMISSAL AS DISCUSSED BELOW
IN ISSUE NO. 24.
(5) WERE SECTIONS 19(A)(1) AND (5) OF THE ORDER VIOLATED ON OR ABOUT
NOVEMBER 8, 1976, BY
THE ACTIONS OF SUPERVISORS INGRAHAM AND RUNTE IN REFUSING TO ALLOW
CLEARY THE RIGHT TO SEE
HESTAND REGARDING A GRIEVANCE?
HESTAND, WHO WAS INTERVIEWED FOR A WHILE BY PITTSON ON BOARD THE
SACRAMENTO ON NOVEMBER 5, AS DESCRIBED ABOVE, HAD A COMPLAINT FOR WHICH
HE WAS TRYING TO FILE A GRIEVANCE. HE WAS A WELDER-HELPER-GENERAL (WG
5) WHO FELT HE WAS DOING WG-8, OR BETTER, WORK. ON NOVEMBER 8, HE MET
WITH CLEARY IN AN OFFICE TO COMPLETE HIS GRIEVANCE. BEFORE FILING A
GRIEVANCE, THE AGREEMENT BETWEEN THE ACTIVITY AND THE UNION REQUIRES
THAT THE MATTER BE DISCUSSED WITH THE GRIEVANT'S IMMEDIATE SUPERVISOR
(-R-A, ART. THIRTY, SECTION 5(A)). IN HESTAND'S CASE THAT WAS HIS
FOREMAN, INGRAHAM. INGRAHAM ENTERED THE OFFICE AND CLEARY ASKED HIM TO
MEET RESPECTING HESTAND'S GRIEVANCE. INGRAHAM DID NOT KNOW WHAT TO DO,
AND THEREFORE WENT TO THE PHONE AND CALLED HIS GENERAL FOREMAN I, RUNTE,
WHO CAME IN SHORTLY THEREAFTER. IMMEDIATELY AFTER INGRAHAM USED THE
PHONE CLEARY CALLED THE UNION'S PRESIDENT, HOLT. THEN CLEARY AND
INGRAHAM TALKED. ACCORDING TO CLEARY HE SHOWED INGRAHAM THE
UNION-ACTIVITY CONTRACT, AND INGRAHAM THREW IT ACROSS THE ROOM, SAYING
THE UNION WOULD SHUT DOWN THE SHIPYARD. ACCORDING TO INGRAHAM, HE SAID
HE WAS POWERLESS TO PROMOTE HESTAND. I BELIEVE BOTH WITNESSES. SOON
THEREAFTER, HOLT CAME IN, IN RESPONSE TO CLEARY'S CALL. AT THAT POINT
RUNTE WENT OUT.
THE ACTIVITY URGES THAT THIS ASPECT OF THE COMPLAINT BE DISMISSED
BECAUSE IT INVOLVES INTERPRETATION OF THE NEGOTIATED AGREEMENT WHICH
COULD BE, AND, THE ACTIVITY CLAIMS WAS, RESOLVED BY OTHER PROCEDURES.
IT DOES NOT SEEM THAT THE INCIDENTS ON NOVEMBER 8 INVOLVED AN
INTERPRETATION OF THE CONTRACT. BUT IT ALSO APPEARS THAT CLEARY AND
HESTAND MET, AND WERE NOT INTERFERED WITH. CLEARY AND HESTAND SOUGHT TO
GET INGRAHAM TO JOIN THEM IN AN INFORMAL MEETING, TO ACCOMPLISH THE
FIRST STEP OF PROCESSING HESTAND'S GRIEVANCE CONCERNING TEMPORARY
PROMOTION. THIS MEETING WAS NOT SUCCESSFUL, IN THAT INGRAHAM COULD NOT
GRANT THE PROMOTION. BUT I FIND NO VIOLATION OF THE ORDER.
(6) WERE SECTIONS 19(A)(1), (5) AND (6) VIOLATED BY THE SHIPYARD'S
ALLEGED ADHERENCE TO
DIFFERENT PROCEDURES IN SHOPS 931 AND 926 FOR ARRANGING APPOINTMENTS
BETWEEN SHOP STEWARDS AND
UNIT EMPLOYEES THROUGHOUT THE PERIOD COVERED BY THE COMPLAINT?
SHOP 931 IS THE MACHINE SHOP IN WHICH CLEARY WORKS. SHOP 926 IS THE
WELDING SHOP. THE WELDING SHOP HAS ITS PERSONNEL WIDELY DISPERSED OVER
THE SHIPYARD. THE MACHINE SHOP IS IN ONE DISCRETE LOCATION. THE
PROCEDURE FOR A STEWARD ARRANGING TO SEE A WORKER IN SHOP 926 AT THE
TIME INVOLVED HERE WAS THAT THE STEWARD WOULD CONTACT HIS SUPERVISOR,
WHO WOULD ARRANGE FOR A MEETING BY CONTACTING THE WORKER'S SUPERVISOR.
IN SHOP 931 THE SUPERVISORS WERE NOT INVOLVED IN MAKING APPOINTMENTS.
STEWARDS MADE THEIR OWN APPOINTMENTS.
THE ACTIVITY EXPLAINED THIS DISPARITY BY THE DIFFERENT GEOGRAPHICAL
DISTRIBUTIONS OF THE SHOPS. IN PERTINENT PART, THE NEGOTIATED AGREEMENT
PROVIDES (ART. SEVEN, SECTION 2):
WHEN ANY COUNCIL OFFICIAL OR STEWARD IS REQUIRED TO LEAVE HIS
WORKSITE ON APPROPRIATE
MATTERS RELATED TO HIS REPRESENTATIONAL DUTIES, HE WILL REQUEST
PERMISSION, ADVISE WHERE HE IS
GOING, AND STATE THE GENERAL NATURE OF HIS BUSINESS. PERMISSION
SHALL ALSO BE OBTAINED FROM
THE COGNIZANT IMMEDIATE SUPERVISOR OF ANY EMPLOYEE BEING CONT()ACTED.
THE SUPERVISOR'S
PERMISSION IN THESE INSTANCES WILL NORMALLY BE GRANTED.
TO THE EXTENT THAT THE DIFFERENT PROCEDURES ARE DIFFERENT
INTERPRETATIONS OF THE AGREEMENT, PARTICULARLY IN THE INTERPRETATION OF
"PERMISSION" IN THE AGREEMENT, I AM PRECLUDED FROM CONSIDERING THEM HERE
BY A/SLMR REPORT NO. 49, AND DEPARTMENT OF THE ARMY, SUPRA, . 5, A/SLMR
NO. 624, AND DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SUPRA, P. 5,
A/SLMR NO. 1168. INSOFAR AS MR. CLEARY OR MR. PITTSON IN PARTICULAR
WAS RESTRAINED IN HIS FUNCTION, I SHALL DEAL WITH SUCH RESTRAINT
SPECIFICALLY IN THE APPROPRIATE ISSUES.
(7) WAS SECTION 19(A)(3) OF THE ORDER VIOLATED ON OR ABOUT NOVEMBER
8, 1976, WHEN
SUPERVISOR WIXSON CALLED STEWARDS OWENS AND SPRENGER INTO HIS OFFICE
ALLEGEDLY TO COMPLAIN
ABOUT MACHINISTS REPRESENTING WELDERS?
ON NOVEMBER 8, 1976, THE MONDAY AFTER THE INCIDENTS ON THE SACRAMENTO
AND THE KITTY HAWK, MAHLON WIXSON, SUPERINTENDENT OF WELDING, SHOP 26,
HAD WHAT HE DESCRIBED AS A "ROUTINE" (TR. 437) MEETING OF CHIEF
STEWARDS. THERE WAS SOME EVIDENCE THAT THERE WERE NO "REGULAR" MEETINGS
(C-8). IN ANY EVENT, PRESENT WERE: LEVI OWENS, CHIEF SHOP STEWARD OF
THE BOILERMAKERS, AND ED SPRENGER, CHIEF SHOP STEWARD OF THE OPERATING
ENGINEERS. JOHN CLEARY, CHIEF SHOP STEWARD OF THE MACHINISTS WAS NOT
THERE. (INCIDENTALLY, I FIND ON THE BASIS OF MY OBSERVATION OF ALL
THREE WITNESSES, THAT CLEARY WAS FAR YOUNGER, MORE AGGRESSIVE AND MORE
ARTICULATE THAN EITHER SPRENGER OR OWENS.) WIXSON TOLD THEM THAT
PITTSON, A MACHINIST, WAS OPERATING OUTSIDE OF HIS GEOGRAPHICAL AREA
AMONG THE WELDERS. THEREUPON SPRENGER WENT TO THE UNION OFFICE, ANGRY
THAT PITTSON WAS ON HIS "TURF."
THE ACTIVITY CONTENDS THAT SINCE THE COMPLAINT DID NOT ALLEGE A
VIOLATION OF SECTION 19(A)(3) OF THE ORDER, THIS ISSUE IS NOT BEFORE ME.
I CONCLUDE THAT SINCE BOTH SIDES INTRODUCED EVIDENCE AND ARGUMENTS
CONCERNING THIS INCIDENT, IT IS BEFORE ME. I FIND THAT ONE PURPOSE MR.
WIXSON HAD IN CALLING THIS MEETING WAS TO INFORM SPRENGER AND OWENS THAT
PITTSON WAS A NEW STEWARD FOR THE WELDERS. SPRENGER'S REACTION WAS TO
IMMEDIATELY TALK TO CLEARY ABOUT THIS. CLEARY RESPONDED THAT PRESIDENT
HOLT HAD APPOINTED PITTSON. THEREUPON SPRENGER "ASKED MR. HOLT WHAT HE
WAS TRYING TO DO BECAUSE I TOLD HIM I THOUGHT WE WERE TRYING TO KEEP . .
. THE STEWARDS FOR THE WELDERS BETWEEN THE BOILERMAKERS AND LOCAL 48
(OPERATING ENGINEERS)." (TR. 130-131.) I HAVE NO DOUBT THAT WIXSON KNEW
ENOUGH ABOUT UNION AFFAIRS AND ABOUT ED SPRENGER TO HAVE FORESEEN THIS
REACTION. SINCE PITTSON HAD THE RIGHT, UNDER SECTION 1 OF THE ORDER TO
ASSIST A LABOR ORGANIZATION, AND SINCE WIXSON'S ACTION WAS AN ATTEMPT TO
INTERFERE WITH THAT RIGHT, A VIOLATION OF SECTION 191(A)(1) IS
ESTABLISHED.
(8) WAS SECTION 19(A)(1) OF THE ORDER VIOLATED ON OR ABOUT NOVEMBER
8, 1976, WHEN
SUPERVISOR RUNTE PURPORTEDLY REFUSED TO ALLOW CLEARY TO MEET HESTAND?
THE EVIDENCE SHOWS THIS INCIDENT OCCURRED ON NOVEMBER 9.
HESTAND HAD DISCUSSED HIS GRIEVANCE CONCERNING HIS TEMPORARY
PROMOTION WITH PITTSON ON THE SACRAMENTO ON NOVEMBER 5, BUT THE
PAPERWORK HAD NOT BEEN COMPLETED. CLEARY WAS ATTEMPTING TO FOLLOW
THROUGH, SINCE PITTSON WAS ON VACATION. A LOGICAL OPPORTUNITY TO DO SO
AROSE ON NOVEMBER 9, 1976, WHEN HESTAND AND CLEARY BOTH WERE IN
INGRAHAM'S OFFICE FOR A SCHEDULED MEETING WITH RUNTE. WHEN RUNTE CAME
IN HE WAS INFORMED THAT THE MEETING WAS CANCELLED. AFTER CHECKING WITH
HIS SUPERIOR, ROWLAND, RUNTE ANNOUNCED THAT THE MEETING WAS OFF, AND
TOLD CLEARY AND HESTAND TO GO BACK TO WORK. CLEARY REQUESTED PERMISSION
TO TALK TO HESTAND RIGHT THEN. RUNTE REFUSED, SAYING THAT THE PROPER
WAY TO DO IT WAS FOR CLEARY TO SET UP AN APPOINTMENT THROUGH HESTAND'S
FOREMAN. SINCE IT WAS OBVIOUS THAT HESTAND'S FOREMAN ALREADY KNEW THAT
HESTAND WAS AT A MEETING, AND PRESUMABLY HAD ACCOMMODATED HIS WORK
SCHEDULE ACCORDINGLY, THE ONLY POSSIBLE EFFECT OF RUNTE'S DECISION WAS
TO INTERFERE WITH HESTAND'S RIGHT TO PURSUE HIS GRIEVANCE. THIS IS A
PATENT VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
THE ACTIVITY CONTENDS THAT THIS ISSUE IS RENDERED MOOT BY THE
NEGOTIATION AND EXECUTION IN APRIL 1977 OF A DOCUMENT ENTITLED "INTENT
OF SPECIFIC ARTICLES AND SECTIONS." THAT DOCUMENT ADDED INTERPRETATIONS
TO SEVERAL SECTIONS OF THE NEGOTIATED AGREEMENT. THE CONTENTION IS THAT
ARGUABLE INTERPRETATIONS OF NEGOTIATED AGREEMENTS ARE NOT TO BE RESOLVED
IN UNFAIR LABOR PRACTICE PROCEEDINGS. IN THE ABSTRACT THAT IS A SOUND
PROPOSITION. BUT THIS CONDUCT BY RUNTE WAS NOT A BONA FIDE DISAGREEMENT
CONCERNING THE INTERPRETATION OF THE NEGOTIATED AGREEMENT. EVEN IF THE
AGREEMENT REQUIRED AN APPOINTMENT MADE BY A SUPERVISOR, IN THIS INSTANCE
THE APPOINTMENT HAD BEEN MADE. IT IS UNREASONABLE TO CONSTRUE THE
AGREEMENT TO REQUIRE MAKING A SECOND APPOINTMENT.
(9) WERE SECTIONS 19(A)(1) AND (2) OF THE ORDER VIOLATED ON OR ABOUT
NOVEMBER 11, 1976,
WHEN SUPERVISOR HUGHES PREPARED AN ALLEGEDLY 'POOR' WORK PERFORMANCE
APPRAISAL ON PITTSON?
THIS APPRAISAL (R-C) WAS SLIGHTLY BETTER ("AVERAGE" RATHER THAN
"BARELY AVERAGE") THAN FOREMAN NULL'S APPRAISAL A MONTH EARLIER, WHICH
IS DISCUSSED ABOVE, IN ISSUE NO. 1. A FORTIORI, I FIND NO VIOLATION OF
THE ORDER.
(10) WAS SECTION 91(A)(1) OF THE ORDER VIOLATED ON OR ABOUT NOVEMBER
12, 1976, WHEN CLEARY,
ALLEGEDLY BECAUSE HE WAS DENIED OFFICIAL TIME TO MEET WITH HESTAND,
HAD TO ARRIVE EARLY TO
WORK TO
HAVE HESTAND SIGN A GRIEVANCE FORM?
SINCE THE ACTIVITY VIOLATED THE ORDER BY REFUSING TO LET CLEARY AND
HESTAND MEET ON NOVEMBER 9, 1976, AS DISCUSSED IN ISSUE NO. 8, AND SINCE
OTHER ATTEMPTS BY HESTAND TO SPEAK TO STEWARDS HAD BEEN SURROUNDED BY
UNPLEASANT INCIDENTS, I.E., THE CONFRONTATION BETWEEN RUNTE AND PITTSON
ON THE SACRAMENTO (ISSUE NO. 4) AND INGRAHAM'S TOSSING THE CONTRACT
ACROSS THE ROOM ON NOVEMBER 8 (ISSUE NO. 5), IT WAS REASONABLE FOR
HESTAND AND CLEARY TO MEET ON OFF DUTY HOURS. THEREFORE IT WAS THE
FORESEEABLE RESULT OF THE VIOLATION DISCUSSED IN ISSUE NO. 8, AND IS
PART OF THE SAME VIOLATION.
(11) WERE SECTIONS 19(A)(2) AND (4) OF THE ORDER VIOLATED ON OR ABOUT
NOVEMBER 15, 1976,
WHEN SUPERVISOR HUGHES INFORMED PITTSON THAT PITTSON WOULD BE CHARGED
LWOP FOR TWO HOURS FOR
NOVEMBER 5, 1976?
THERE WAS NO EVIDENCE TO SHOW THAT PITTSON HAD FILED A COMPLAINT OR
GIVEN TESTIMONY UNDER THE ORDER, SO THAT NO VIOLATION OF SECTION
19(A)(4) IS ESTABLISHED. THE REASON PITTSON WAS GOING TO BE CHARGED
LEAVE WITHOUT PAY FOR TWO HOURS FOR NOVEMBER 5, 1976, WAS THAT HUGHES
DENIED GIVING PITTSON PERMISSION TO TALK TO HESTAND ABOARD THE
SACRAMENTO. SINCE I CREDIT HUGHES IN THIS REGARD, CHARGING THE TIME TO
LWOP SEEMS APPROPRIATE. SINCE CHARGING THE TIME IS APPROPRIATE, IT WAS
ALSO APPROPRIATE TO INFORM PITTSON ACCORDINGLY.
(12) WERE SECTIONS 19(A)(1), (2) AND (4) OF THE ORDER VIOLATED ON OR
ABOUT NOVEMBER 16,
1976, WHEN PITTSON WAS TOLD BY HUGHES THAT PITTSON WOULD BE
INVESTIGATED FOR HIS ACTIONS OF
NOVEMBER 5, 1976?
SINCE THE INCIDENTS ON NOVEMBER 5, 1976, WERE SIGNIFICANT AND
UPSETTING FOR ALL PARTIES, THEY REQUIRED INVESTIGATION. THE NEGOTIATED
AGREEMENT PERMITTED SUCH INVESTIGATION (R-A, ART. TWENTY-ONE, SECTION 4)
AND COMMON COURTESY AS WELL AS DUE PROCESS REQUIRED THAT PITTSON BE
INFORMED OF SUCH AN INVESTIGATION.
(13) WERE SECTIONS 19(A)(1) AND (2) OF THE ORDER VIOLATED ON OR ABOUT
NOVEMBER 29, 1976,
WHEN HESTAND WAS ASSIGNED TO BE "FIRE WATCH?"
BETWEEN DECEMBER 1, 1976 AND JULY 1977, WHEN HE QUIT, HESTAND WAS
ASSIGNED TO "FIRE WATCH" APPROXIMATELY 50 PERCENT OF THE TIME. FIRE
WATCH IS AN ESSENTIAL BUT TEDIOUS FUNCTION, WHICH CONSISTS OF WATCHING
TO INSURE THAT WELDING OPERATIONS DO NOT RESULT IN FIRES. WELDERS WHO
WANT TO ADVANCE AND IMPROVE THEIR SKILLS DO NOT LIKE FIRE WATCH DUTY
BECAUSE IT OFFERS LITTLE OPPORTUNITY TO DEMONSTRATE IMPROVED WELDING
SKILLS.
A SINGLE OR AN OCCASIONAL OR A ROTATING ASSIGNMENT TO "FIRE WATCH"
WOULD NOT BE A VIOLATION OF THE ORDER. BUT TO BE ASSIGNED 50 PERCENT OF
THE TIME FOR A SIX-MONTH PERIOD IS UNUSUAL. SINCE HESTAND HAD BEEN ONE
OF THE PEOPLE TRYING TO PUSH HIS GRIEVANCE WITH PITTSON'S AND CLEARY'S
HELP AND IN VIEW OF HIS ABOVE AVERAGE PERFORMANCE APPRAISALS (C-5 AND 6)
I INFER THAT THE EXCESSIVE FIRE WATCH DUTY WAS IN REPRISAL FOR HIS
PROTECTED ACTIVITIES. IT WAS DIRECTLY INTENDED TO DISCOURAGE HIS
MEMBERSHIP IN THE UNION AND IS A VIOLATION OF SECTIONS 19(A)(1) AND (2)
OF THE ORDER.
(14) WAS SECTION 19(A)(3) OF THE ORDER VIOLATED ON OR ABOUT NOVEMBER
3, 1976, WHEN HESTAND
WAS GIVEN A LIST OF SHOP STEWARDS AND ALLEGEDLY TOLD THAT THESE WERE
THE ONLY STEWARDS FROM
WHICH HE COULD CHOOSE FOR REPRESENTATION?
THE LIST WAS INTRODUCED AS C-7. IT PROBABLY WAS GIVEN TO HESTAND
TOWARD THE END OF NOVEMBER, RATHER THAN ON NOVEMBER 3, 1976 (TR. 105).
HESTAND TESTIFIED THAT HIS FOREMAN, INGRAHAM, GAVE HIM THE LIST EVEN
THOUGH HE WANTED CLEARY, AND LIMITED HIM TO THE NAMES ON IT. INGRAHAM,
ON THE OTHER HAND, DENIED GIVING HESTAND C-7 (TR. 688). THE UNION DOES
NOT ADDRESS THIS ISSUE IN ITS BRIEF. RESOLVING THE CONFLICTS IN THE
EVIDENCE IN FAVOR OF THE ACTIVITY AS BEING MORE PLAUSIBLE ON THIS POINT
I FIND NO VIOLATION OF THE ORDER.
(15) WERE SECTIONS 19(A)(1), (2), (3) AND (4) OF THE ORDER VIOLATED
ON OR ABOUT NOVEMBER
24, 1976, WHEN PITTSON WAS ORDERED BY HUGHES TO SEE SUPERINTENDENT
WIXSON; PITTSON'S REQUEST
TO HAVE CLEARY REPRESENT HIM WAS NOT HONORED; WIXSON APPOINTED A
REPRESENTATIVE FOR
PITTSON; AND PITTSON WAS HANDED A MEMORANDUM DATED NOVEMBER 23,
1976, DEALING WITH
DISCIPLINARY ACTION?
ON NOVEMBER 24, PITTSON WAS TOLD BY HIS SUPERVISOR, HUGHES, TO REPORT
TO SUPERINTENDENT WIXSON'S OFFICE. PITTSON TOLD HUGHES THAT HE WANTED
CLEARY TO BE THERE TO REPRESENT HIM. HUGHES SAID HE'D SEE WHAT HE COULD
DO. IN FACT, HUGHES DID NOTHING. WHEN PITTSON ARRIVED, HE WAS MET BY
SEVERAL PEOPLE, INCLUDING SUPERINTENDENT WIXSON, OTHER SUPERVISORS, AND
HENRY CLANCY, A SHOP STEWARD IN THE OPERATING ENGINEERS LOCAL. CLANCY
HAD BEEN CALLED BY MR. MEE (WELDER GENERAL FOREMAN) TO REPRESENT
PITTSON. PITTSON REFUSED TO HAVE CLANCY AS A REPRESENTATIVE AND THUS
THE MEETING LASTED ONLY LONG ENOUGH FOR WIXSON TO HAND PITTSON A LETTER
(C-14) ADVISING HIM THAT A DETERMINATION IS BEING MADE AS TO WHETHER
DISCIPLINARY ACTION IS WARRANTED, PRESUMABLY AS A RESULT OF THE NOVEMBER
5 INCIDENTS. EVENTUALLY, ON DECEMBER 17 AND DECEMBER 21, PITTSON WAS TO
GET LETTERS OF PROPOSED REMOVAL, AND ON FEBRUARY 4, 1977, HE WAS FINALLY
TERMINATED.
THE ACTIVITY CONTENDS THAT THE MEETING ON NOVEMBER 24, 1976, WAS NOT
A FORMAL MEETING WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER SINCE
IT DEALT SOLELY WITH THE INDIVIDUAL CONDUCT OF MR. PITTSON. EVEN IF IT
BE ASSUMED THAT THE POSSIBILITY OF DISCIPLINARY ACTION AROSE EXCLUSIVELY
BECAUSE OF PITTSON'S CONDUCT AS AN INDIVIDUAL AND NOT AS A UNION STEWARD
ON UNION BUSINESS, ARTICLE TWENTY-ONE OF THE NEGOTIATED AGREEMENT (R-A)
PROVIDES THAT AN EMPLOYEE MAY HAVE COUNCIL REPRESENTATION. APPARENTLY
MR. WIXSON THOUGHT SO TOO, WHICH IS WHY HE ARRANGED, THROUGH MEE, TO
HAVE A STEWARD THERE. IF REPRESENTATION IS TO BE MEANINGFUL IT MUST BE
BY SOMEONE IN WHOM THE EMPLOYEE HAS CONFIDENCE. MANAGEMENT, ESPECIALLY
MR. HUGHES, KNEW THAT PITTSON WANTED CLEARY. YET HUGHES NEVER
COMMUNICATED THIS DESIRE TO ANYONE. THUS, PITTSON WAS DENIED REAL
REPRESENTATION. I FIND THAT, BUT FOR PITTSON'S ACTIVITY IN PUSHING THE
WELDERS' GRIEVANCES, HE WOULD HAVE BEEN ACCORDED THE REPRESENTATIVE OF
HIS CHOICE. THUS, MR. MEE TESTIFIED THAT IT IS NORMAL PRACTICE TO GIVE
AN EMPLOYEE THE STEWARD OF HIS CHOICE, IF REQUESTED (TR. 725). IN ALL
THE CIRCUMSTANCES THIS AMOUNTED TO A VIOLATION OF SECTION 19(A)(1) AND
(3) OF THE ORDER. THERE IS NO VIOLATION OF SECTION 19(A)(4), BECAUSE
THERE IS NO EVIDENCE THAT PITTSON HAD FILED A COMPLAINT OR GIVEN
TESTIMONY UNDER THE ORDER.
(16) WERE SECTIONS 19(A)(1), (2), (3) AND (5) OF THE ORDER VIOLATED
ON OR ABOUT NOVEMBER
29, 1976, WHEN CLEARY WAS DENIED PERMISSION TO SEE PITTSON EVEN
THOUGH CLEARY ALLEGEDLY HAD
OBTAINED PERMISSION TO SEE HIM?
ON NOVEMBER 29, CLEARY WANTED TO HAVE A MEETING WITH HUGHES AND
PITTSON. IN TRYING TO LOCATE HUGHES AND TO GET PERMISSION TO SEE
PITTSON, CLEARY ENTERED THE WELDERS' SUPERVISORS' OFFICE. HE THERE
ENGAGED IN A DISCUSSION DURING WHICH HE WAS GETTING INCREASINGLY
FRUSTRATED BY THE DIFFICULTY HE WAS HAVING IN ARRANGING THE MEETING. AT
THIS POINT WELDER GENERAL FOREMAN I, LYLE RUNTE, ENTERED THE OFFICE, AND
CLEARY MADE THE STATEMENTS THAT ARE DISCUSSED BELOW IN ISSUE NO. 25.
OBVIOUSLY CLEARY WAS UPSET. BECAUSE OF THIS UPSET, I BELIEVE THE
TESTIMONY THAT CLEARY "STORMED OUT OF THE OFFICE" (TR. 739) RATHER THAN
TRYING TO FIND HUGHES TO GET PERMISSION TO TALK TO PITTSON. I FIND THAT
HE WAS NOT DENIED THE OPPORTUNITY TO MEET WITH PITTSON ON THIS OCCASION.
(17) WERE SECTIONS 19(A)(1) AND (5) OF THE ORDER VIOLATED DURING THE
PERIOD BETWEEN
NOVEMBER 23, 1976, AND DECEMBER 1, 1976, BY THE ACTIONS OF
SUPERVISORS DROUIN AND MAYTON IN
REFUSING TO ALLOW PITTSON TO SEE CLEARY TO DISCUSS PITTSON'S
GRIEVANCE?
I CAN FIND NO EVIDENCE IN THE RECORD CONCERNING THESE SPECIFIC
INCIDENTS, AND THEREFORE I MAKE NO RULING ON THEM.
(18) WERE SECTIONS 19(A)(1), (2), (3) AND (4) OF THE ORDER VIOLATED
AT THE END OF NOVEMBER
1976 BY THE ACTIONS OF SUPERVISORS UNGREN AND HUGHES WHEN THEY
ATTEMPTED TO DETERMINE IF
PITTSON HAD PROMPTED THE FILING OF GRIEVANCES BY OTHER EMPLOYEES
AGAINST SHOP 926 REGARDING
TEMPORARY PROMOTIONS?
THE EVIDENCE IS UNCONTRADICTED THAT SUPERVISORS UNGREN AND HUGHES
APPROACHED TWO WORKERS NAMED CHAMP AND DOUGLAS TO ASK THEM WHETHER
THEY
HAD GRIEVANCES. MR. UNGREN DECLINED TO CHARACTERIZE THIS INQUIRY AS AN
ATTEMPT TO SEE WHETHER PITTSON WAS SOLICITING GRIEVANCES. BUT BOTH
DOUGLAS AND CHAMP TESTIFIED THAT THE QUESTION ASKED WAS WHETHER PITTSON
SOLICITED. I BELIEVE THAT, IN FACT, THIS IS THE INFORMATION THE
SUPERVISORS WERE AFTER. PITTSON'S ACTIVITIES WERE CREATING PROBLEMS
(WITNESS THE INCIDENT OF NOVEMBER 5, 1976-- SEE ISSUE NO. 4, ABOVE) AND
IT SEEMS LIKELY THAT MANAGEMENT SOUGHT TO FIND OUT IF PITTSON WAS
BEHAVING ILLEGALLY.
THE EFFECT OF THIS INQUIRY WAS TO DISCOURAGE CHAMP AND DOUGLAS FROM
PURSUING THEIR GRIEVANCES ACTIVELY THEREAFTER, ESPECIALLY AFTER THEY
LEARNED THAT PITTSON WAS BEING FIRED. THIS IS A VIOLATION OF SECTION
19(A)(1), BUT NOT OF ANY OTHER SECTION.
THE UNION ALSO CONTENDS THAT CHAMP WAS OFFERED A PROMOTION IF HE
WOULD DROP HIS GRIEVANCE. THE ACTIVITY'S WITNESSES DENIED THAT SUCH AN
OFFER WAS MADE. CHAMP HIMSELF JUST TESTIFIED THAT "SOME SORT OF
ARRANGEMENT" WAS MENTIONED (TR. 177) AND APPARENTLY NOTHING FURTHER WAS
SAID ABOUT IT. I FIND THIS EVIDENCE INSUFFICIENT TO SUPPORT A VIOLATION
OF THE ORDER IN THIS RESPECT.
(19) WERE SECTION 19(A)(1), (3) AND (5) OF THE ORDER VIOLATED FROM
NOVEMBER 17, 1976, BY
WIXSON'S REFUSAL TO ACCEPT GRIEVANCES FILED BY PITTSON ON BEHALF OF
UNIT EMPLOYEES?
WIXSON TESTIFIED THAT HE RECEIVED A TOTAL OF SIX GRIEVANCES WHICH HE
RETURNED BECAUSE THEY LACKED SPECIFICITY (TR. 444-446; C-4). HE
TESTIFIED THAT THIS WAS NOT A REJECTION OF THE GRIEVANCES, BUT MERELY A
REQUEST FOR FURTHER INFORMATION.
ARTICLE THIRTY, SECTION 5(B)(1) OF THE NEGOTIATED AGREEMENT PROVIDES
IN PART:
. . . THE GRIEVANCE SHALL BE REDUCED TO WRITING ON THE APPROPRIATE
FORM AND SHALL SPECIFY,
AS A MINIMUM, THE FOLLOWING DETAILS: THE NATURE, TIME, AND DATE OF
THE ACTION OR INCIDENT
GIVING RISE TO THE GRIEVANCE, THE AGREEMENT PROVISION ALLEGED
VIOLATED, THE DATE OF THE
INFORMAL DISCUSSION AND THE CORRECTIVE ACTION DESIRED. THE FORM MUST
BE SUBMITTED TO THE HEAD
OF THE SHOP OR BRANCH WITHIN FIVE (5) WORKING DAYS OF THE IMMEDIATE
SUPERVISOR'S INFORMAL
DECISION.
GRIEVANCES DEFICIENT IN REQUIRED DETAILS WILL BE RETURNED TO THE
EMPLOYEE FOR INCLUSION OF
ADDITIONAL NECESSARY INFORMATION. THE SHOP OR BRANCH HEAD SHALL
SCHEDULE A MEETING WITH THE
EMPLOYEE AND HIS STEWARD WITHIN FIVE (5) WORKING DAYS OF RECEIPT OF
THE GRIEVANCE TO ATTEMPT
RESOLUTION.
THE EMPHASIS OF THIS OUTLINED PROCEDURE IS SPEED AND ORAL
COMMUNICATION, WITH WRITING PRIMARILY AS A MEANS OF KEEPING A RECORD.
C-4 SHOWS THAT THE GRIEVANCE CONTAINED THE MINIMUM DETAILS SPECIFIED:
NATURE, TIME AND DATE OF THE INCIDENT GIVING RISE TO THE GRIEVANCE, THE
AGREEMENT PROVISION ALLEGED VIOLATED, THE DATE OF THE INFORMAL
DISCUSSION AND THE CORRECTIVE ACTION DESIRED. MR. WIXSON TESTIFIED THAT
THE STATEMENT OF THE NATURE OF THE GRIEVANCE LACKED SPECIFICITY. IN
THIS REGARD THE GRIEVANCE STATES: "THEY HAVE ASSIGNED ME DUTIES ABOVE
THE LEVEL OF MY POSITION FOR MORE THAN ONE PAY PERIOD WITHOUT
TEMPORARILY PROMOTING ME TO THE HIGHER POSITION." ALTHOUGH THIS DOES NOT
GIVE A DESCRIPTION OF PRECISELY WHAT WORK IS CLAIMED TO BE "ABOVE THE
LEVEL OF MY POSITION," IT IS ENOUGH TO PUT THE ACTIVITY ON NOTICE OF THE
GENERAL NATURE OF THE GRIEVANCE. IF THE THRUST OF THE GRIEVANCE
PROCEDURE WAS WRITTEN COMMUNICATION, A MORE SPECIFIC WRITING WOULD BE
DESIRABLE. BUT THE THRUST IS ORAL, NOT WRITTEN COMMUNICATIONS. A
MEETING INVOLVING THE BRANCH HEAD, EMPLOYEE AND STEWARD IS REQUIRED TO
BE HELD WITHIN FIVE DAYS. IT IS EVIDENT THAT THE ACTIVITY DID NOT
SCHEDULE SUCH A MEETING WITH ANY OF THE GRIEVANTS. AT A MEETING THE
DETAILS COULD EASILY HAVE BEEN SUPPLIED. IN THIS LIGHT, THE RETURN OF
THE GRIEVANCES SEEMS MORE LIKE A TACTIC OF DELAY THAN A BONA FIDE
REQUEST FOR DETAILS. I CONCLUDE THAT THIS WAS A VIOLATION OF SECTION
19(A)(1) OF THE ORDER, BUT NOT OF 19(A)(3) OR (5).
(20) WAS SECTION 19(A)(1) OF THE ORDER VIOLATED ON OR ABOUT DECEMBER
1, 1976, WHEN
SUPERVISOR HUGHES ALLEGEDLY QUESTIONED THE NEED FOR HIS PRESENCE AT A
GRIEVANCE MEETING?
THE QUESTIONING REFERRED TO WAS BASED ON HUGHES' INEXPERIENCE WITH
GRIEVANCE PROCEDURE AND RECTIFIED WHEN HE MET WITH CLEARY AND PITTSON.
THERE WAS NO VIOLATION OF THE ORDER IN THIS RESPECT.
(21) WERE SECTIONS 19(A)(1) AND (4) OF THE ORDER VIOLATED WHEN
HESTAND WAS ISSUED A
MEMORANDUM REGARDING THE NEED FOR DISCIPLINARY ACTION BECAUSE OF
STOLEN TOOLS?
IN PART THIS ISSUE IS ARGUED BY THE PARTIES ON THE POINT WHETHER A
PROPOSED NOTICE OF DISCIPLINE SHOULD HAVE PRECEDED THE MEMORANDUM. THE
CONTRACT IS NOT CLEAR ON THIS POINT (R-A, ARTICLE TWENTY-ONE, SECTIONS
1, 2 AND 5). THE ACTIVITY'S DIRECTOR OF LABOR RELATIONS TESTIFIED IT
WAS NOT CUSTOMARY TO ISSUE PROPOSED LETTERS OF REPRIMAND. I FIND
INSUFFICIENT EVIDENCE UPON WHICH TO PREMISE A VIOLATION OF THE ORDER, IN
THIS RESPECT. FURTHERMORE, ON THIS ASPECT OF THE ISSUE, I AM PRECLUDED
FROM CONSIDERING IT BY THE RULE IN DEPARTMENT OF THE ARMY, SUPRA, P. 5,
A/SLMR NO. 624, AND DEPARTMENT OF HEW, SUPRA, P. 5, A/SLMR NO. 1168.
ON THE MORE BASIC ISSUE, WHETHER A REPRIMAND WAS JUSTIFIED, OR WAS AN
INSTANCE OF REPRISAL, AS WAS THE FIRE WATCH DUTY IMPOSED ON HESTAND, I
ALSO FIND NO VIOLATION OF THE ORDER. IT APPEARS THAT VALUABLE TOOLS
WERE MISSING WHILE IN HESTAND'S CUSTODY. ALTHOUGH HESTAND SUGGESTED
THAT THE TOOLS WERE TAKEN AS A REPRISAL (TR. 117-118), THERE IS NOTHING
TO CORROBORATE THIS SPECULATION.
(22) WERE SECTIONS 19(A)(1) AND (5) OF THE ORDER VIOLATED WHEN A. L.
MCFALL, ON OR ABOUT
DECEMBER 22, 1976, ISSUED A LETTER TO THE BMTC INDICATING THAT A
GRIEVANCE REGARDING SICK
LEAVE FILED AGAINST SUPERVISOR WIXSON SHOULD BE RETURNED TO THE BMTC?
COMPLAINANT DOES NOT ARGUE THIS ISSUE. ONLY MR. MCFALL TESTIFIED ON
IT. I FIND INSUFFICIENT EVIDENCE ON WHICH TO PREMISE A VIOLATION OF THE
ORDER.
(23) WERE SECTIONS 19(A)(1), (2), (3) AND (4) OF THE ORDER VIOLATED
ON OR ABOUT DECEMBER
22, 1976, WHEN A LETTER PROPOSING A TWO DAY SUSPENSION OF J. CLEARY
WAS FORWARDED TO THE BMTC
DESPITE CLEARY'S SPECIFIC INSTRUCTION THAT THE DOCUMENT REMAIN
PRIVATE?
AS A RESULT OF CLEARY'S DISRESPECT TO RUNTE ON NOVEMBER 29 (SEE ISSUE
NO. 25, BELOW), CLEARY'S SUPERINTENDENT ISSUED A LETTER OF PROPOSED
ADVERSE ACTION TO CLEARY, DATED DECEMBER 20, 1976. ON DECEMBER 21,
CLEARY REQUESTED IN WRITING THAT THE UNION NOT BE GIVEN A COPY OF THE
LETTER. ON DECEMBER 22, THE UNION IN FACT RECEIVED A COPY OF THE
LETTER. BASED ON TESTIMONY, WHICH I BELIEVE, THAT THE SHIPYARD
PERSONNEL OFFICE HAD XEROX COPIERS ONLY, AND THE COPY THAT THE UNION
RECEIVED WAS A COPY MADE BY ANOTHER PROCESS, I FIND THAT THE ACTIVITY
DID NOT FURNISH THE UNION A COPY OF THE LETTER OF PROPOSED ADVERSE
ACTION.
(24) WERE SECTIONS 19(A)(1) AND (4) OF THE ORDER VIOLATED ON DECEMBER
20, 1976, WHEN
PITTSON RECEIVED AN OFFICIAL LETTER PROPOSING TO TERMINATE HIS
EMPLOYMENT WITH THE SHIPYARD?
OBVIOUSLY IT DOES NOT VIOLATE THE ORDER TO ISSUE A PROPOSED LETTER OF
ADVERSE ACTION IF THE ADVERSE ACTION ITSELF IS JUSTIFIED. THE BASIC
QUESTION IS WHETHER PITTSON'S TERMINATION WAS IN REPRISAL FOR HIS UNION
ACTIVITY OR WAS A BONA FIDE RESPONSE TO HIS ACTIONS. I AM FORECLOSED
FROM CONSIDERING THIS QUESTION BY THE ASSISTANT SECRETARY OF LABOR'S
DECISION IN HIS LETTER OF JUNE 19, 1978 (ASST. SECY. EXHIBIT 1(E)) AND
BY SECTION 19(D) OF THE ORDER.
(25) WERE SECTIONS 19(A)(1), (2) AND (4) OF THE ORDER VIOLATED ON
DECEMBER 20, 1976, WHEN
CLEARY RECEIVED AN OFFICIAL LETTER PROPOSING TO SUSPEND HIM FOR TWO
DAYS, AND ON DECEMBER 21,
1976, WHEN PITTSON WAS GIVEN A SLIGHTLY REVISED COPY OF THE DECEMBER
20, 1976, LETTER
PROPOSING TO REMOVE HIM?
RESPECTING PITTSON, THIS ISSUE IS DISPOSED OF BY THE DISCUSSION OF
ISSUE NO. 24, ABOVE. RESPECTING CLEARY, THE BASIC ISSUE IS WHETHER THE
TWO-DAY SUSPENSION WAS IN REPRISAL FOR HIS UNION ACTIVITIES OR WAS
JUSTIFIED BY HIS ACTIONS. HIS ACTIONS WERE THAT ON NOVEMBER 29, 1976,
CLEARY, A CHIEF STEWARD, WANTED TO MEET WITH ONE OF HIS STEWARDS,
PITTSON. IN ORDER TO SEE HIM HE HAD TO GET PERMISSION OF PITTSON'S
FOREMAN, HUGHES. CLEARY LOOKED FOR HUGHES IN THE WELDERS' SUPERVISORS'
OFFICE. HUGHES WAS NOT THERE BUT FOREMAN MAIN WAS. MAIN'S CONVERSATION
WITH CLEARY MADE CLEARY MORE AND MORE FRUSTRATED WITH WHAT HE PERCEIVED
AS OBSTACLES PUT HIS WAY. CLEARY, WAS, OF COURSE, AWARE OF THE RUN-IN
PITTSON HAD EARLIER THAT MONTH WITH GENERAL FOREMAN RUNTE (SEE ISSUE NO.
4); AND WITH RUNTE'S REFUSAL TO LET HIM MEET WITH HESTAND ON NOVEMBER 9
(SEE ISSUE NO. 8). AT THAT POINT RUNTE ENTERED THE OFFICE AND CLEARY
SAID, "WHAT IS HE DOING HERE?" AND THEN HE SHOOK HIS FIST IN HIS FACE
AND HE SAID, "I AM GOING TO GET YOUR ASS. I FILED AN UNFAIR LABOR
PRACTICE AND IF THE COUNCIL DOESN'T GET YOUR JOB, THEN SOMETHING IS
WRONG." (TR. 746; SEE ALSO PP. 755-756.) SHORTLY THEREAFTER CLEARY
"STORMED OUT OF THE OFFICE." (TR. 739). THIS WAS THE EXCLUSIVE BASIS
FOR CLEARY'S TWO-DAY SUSPENSION. CLEARY HAD HAD NO DISCIPLINARY ACTIONS
AGAINST HIM PREVIOUSLY. MR. MCFALL, TESTIFIED: "WE HAVE NO PROBLEM
WITH MR. CLEARY IN HIS DISCUSSIONS WITH GENERAL FOREMEN AND SUPERVISORS,
NOW. THERE WERE SOME THINGS SAID, AT THAT TIME, WHICH WERE NOT TYPICAL
OF EVEN HIMSELF." (TR. 405-406.) IN SHORT, CLEARY'S STATEMENT WAS AN
ISOLATED INCIDENT. HE WAS CLEARLY ON UNION BUSINESS. THERE HAD BEEN A
RECENT HISTORY OF INCIDENTS WHICH VIOLATED THE ORDER. IN THESE
CIRCUMSTANCES ALMOST ANY DISCIPLINE WAS IMPROPER, AND A TWO-DAY
SUSPENSION CERTAINLY SO.
CLEARY'S LANGUAGE COMES WITHIN THE DEFINITION OF "ROBUST DEBATE"
WHICH THE SUPREME COURT HAS DECLARED PROTECTED, BOTH UNDER THE NLRA AND
THE ORDER, IN OLD DOMINION BR. NO. 496, NAT. ASSN., LETTER CAR. V
AUSTIN, 418 U.S. 264, 273(1974). IN U.S. SMALL BUSINESS ADMINISTRATION,
CENTRAL OFFICE AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2532, AFL-CIO, A/SLMR NO. 631, THE ASSISTANT SECRETARY ADOPTED THE
FOLLOWING STATEMENT BY ADMINISTRATIVE LAW JUDGE GIESEY:
THE BRIEF ENCOUNTER BETWEEN MR. FOSTER AND MR. GRANT DID OCCUR AND
SOMEWHERE BETWEEN TWO
AND THREE 'DAMNS,' ONE 'ASS' AND ONE 'HELL' WERE SPOKEN BY MR.
FOSTER. AS MR. FOSTER
TESTIFIED, 'I WAS REALLY ANGRY.' I BELIEVE HIM, HE APPEARED AT THE
HEARING TO BE SOMEWHAT
MERCURIAL IN NATURE IN CONTRAST WITH MR. GRANT'S IMPERIOUS AND
GLACIAL DEMEANOR.
I ADOPT THAT LANGUAGE AS APPLICABLE HERE, SUBSTITUTING CLEARY FOR
FOSTER AND RUNTE FOR GRANT. FLAGRANT CONDUCT OF AN EMPLOYEE IN THE
COURSE OF PROTECTED ACTIVITY JUSTIFIES DISCIPLINARY ACTION BY AN
EMPLOYER, BUT THERE MUST BE LEEWAY FOR IMPULSIVE BEHAVIOR. N.L.R.B. V.
THOR POWER TOOL CO., 351 F.2D 584, 587 (7TH CIR. 1965). THIS IS AN
INSTANCE OF SUCH "IMPULSIVE BEHAVIOR." THE DISCIPLINE IMPOSED WAS
EXCESSIVE; IT RESULTED FROM UNION ANIMUS. I FIND THAT SECTION 19(A)(1)
OF THE ORDER WAS VIOLATED.
(26) WERE SECTIONS 19(A)(1), (2) AND (4) OF THE ORDER VIOLATED ON OR
ABOUT JANUARY 12,
1977, WHEN THEN CHIEF STEWARD CLEARY WAS SUSPENDED FOR TWO DAYS FOR
ALLEGED INSUBORDINATION?
THIS ISSUE HAS BEEN DISPOSED OF IN THE DISCUSSION OF ISSUE NO. 25.
RELIEF
FOR RELIEF THE UNION SEEKS THE REINSTATEMENT OF PITTSON WITH BACK
PAY; REIMBURSEMENT FOR CLEARY'S LOST WAGES; PURGING OF REFERENCES TO
CLEARY'S ALLEGED MISCONDUCT AND THE TWO-DAY SUSPENSION FROM ALL
GOVERNMENT RECORDS; ATTORNEY'S FEES AND EXPENSES OF LITIGATION; AND
POSTING OF THE USUAL NOTICE.
DESPITE THE UNION'S CONTENTION, I BELIEVE I AM FORECLOSED FROM
ORDERING PITTSON'S REINSTATEMENT BY THE ASSISTANT SECRETARY OF LABOR'S
DECISION IN HIS LETTER OF JUNE 19, 1978 (ASST. SECY. EXHIBIT 1(E)). I
DO ORDER THE RELIEF REQUESTED RESPECTING CLEARY. PRECEDENT FOR SUCH
ACTION IS FOUND IN PARAGRAPHS 2(A) AND (B) OF THE ORDER ISSUED IN
VETERAN'S ADMINISTRATION, NORTH CHICAGO VETERANS HOSPITAL AND LOCAL
2107, AFGE, A/SLMR NO. 1024(1978).
DESPITE MY REQUEST FOR AUTHORITIES FROM COUNSEL (TR. 10) HE HAS
FURNISHED NONE, AND I HAVE FOUND NONE, THAT WOULD AUTHORIZE THE AWARD OF
ATTORNEY'S FEES AND COSTS. THE CIVIL SERVICE REFORM ACT OF 1978, P.L.
95-454, 92 STAT. 1111, SECTION 702, AMENDS 5 U.S.C. 5596(B) TO PROVIDE
FOR REASONABLE ATTORNEY FEES TO "AN EMPLOYEE OF AN AGENCY" IN CERTAIN
CIRCUMSTANCES. IN THE INSTANT CASE THE EMPLOYEE INVOLVED, JOHN CLEARY,
HAD NO ATTORNEY'S FEES. THE UNION'S COUNSEL REPRESENTED THE UNION, NOT
MR. CLEARY AS AN INDIVIDUAL. THEREFORE THAT PROVISION DOES NOT APPLY.
IN THE ABSENCE OF AUTHORITY AUTHORIZING AWARD OF SUCH FEES AND COSTS I
DECLINE TO ORDER SUCH RELIEF.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, AND THE TRANSITION RULES AND
REGULATIONS PUBLISHED IN 44 FED.REG. 7 (JANUARY 2, 1979) ADDING PART
2400 TO 5 C.F.R., THE FEDERAL LABOR RELATIONS AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER.
(B) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION
IN REGARD TO ANY CONDITIONS OF EMPLOYMENT.
(C) SPONSORING, CONTROLLING, OR OTHERWISE ASSISTING A LABOR
ORGANIZATION EXCEPT AS PERMITTED BY THE EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES OF EXECUTIVE ORDER 11491 AS AMENDED:
(A) REIMBURSE JOHN CLEARY THE WAGES HE WAS NOT PAID AS A RESULT OF
THE TWO-DAY SUSPENSION REFERRED TO IN ISSUE 26 ABOVE.
(B) DELETE ALL REFERENCES TO THE TWO DAY SUSPENSION GIVEN TO JOHN
CLEARY, REFERRED TO IN ISSUE 26 ABOVE, AND DELETE ALL REFERENCES TO THE
CONDUCT OF JOHN CLEARY IN THE PRESENCE OF LYLE RUNTE ON NOVEMBER 29,
1976, FROM CLEARY'S PERSONNEL FILE AND FROM ANY OTHER DOCUMENTS IN THE
ACTIVITY'S POSSESSION OR CONTROL IN WHICH SUCH REFERENCE MAY APPEAR.
(C) POST IN ITS FACILITY AT BREMERTON, WASHINGTON 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 COMMANDER OF THE PUGET SOUND NAVAL SHIPYARD AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, 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.
THOMAS SCHNEIDER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 7, 1979
SAN FRANCISCO, CALIFORNIA
TS:VAG
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 EXECUTIVE ORDER
11491, AS AMENDED LABOR-MANAGEMENT RELATIONS IN THE
FEDERAL SERVICE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOT DISCOURAGE MEMBERSHIP IN THE BREMERTON METAL TRADES
COUNCIL, OR ANY LABOR ORGANIZATION, BY DISCRIMINATING IN REGARD TO ANY
CONDITIONS OF EMPLOYMENT.
WE WILL NOT SPONSOR, CONTROL, OR OTHERWISE ASSIST A LABOR
ORGANIZATION EXCEPT AS PERMITTED BY THE EXECUTIVE ORDER.
WE WILL REIMBURSE JOHN CLEARY THE WAGES HE WAS NOT PAID AS A RESULT
OF THE TWO-DAY SUSPENSION HE RECEIVED ON OR ABOUT JANUARY 12, 1977, FOR
ALLEGED INSUBORDINATION.
WE WILL DELETE ALL REFERENCES TO THE AFORESAID TWO-DAY SUSPENSION AND
DELETE ALL REFERENCES TO THE CONDUCT OF JOHN CLEARY IN THE PRESENCE OF
LYLE RUNTE ON NOVEMBER 29, 1976, FROM CLEARY'S PERSONNEL FILE AND FROM
ANY OTHER DOCUMENTS IN OUR POSSESSION OR CONTROL IN WHICH SUCH
REFERENCES MAY APPEAR.
(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
MATERIAL.
IF ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: ROOM 317, 211 MAIN STREET, SAN FRANCISCO, CALIFORNIA
94105.
/1/ IN VIEW OF THIS FINDING, THE AUTHORITY FINDS IT UNNECESSARY TO
CONSIDER OR PASS UPON THE ALJ'S FINDING THAT THE DISCIPLINE IMPOSED ON
THE STEWARD WAS EXCESSIVE.
/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/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.
/4/ SECTION REFERENCES ARE TO THE ORDER.
/5/ R-A IS RESPONDENT'S EXHIBIT A, THE NEGOTIATED AGREEMENT.
REFERENCES TO RESPONDENT'S EXHIBITS ARE PREFIXED BY R; REFERENCES TO
COMPLAINANT'S EXHIBITS ARE PREFIXED BY C. THE TRANSCRIPT IS REFERRED TO
BY TR. FOLLOWED BY A PAGE REFERENCE.
/6/ THERE IS SOME EVIDENCE THAT THIS WAS THE CAMDEN, BUT THE NAME OF
THE SHIP IS IRRELEVANT FOR PRESENT PURPOSES.