[ v03 p189 ]
03:0189(27)CA
The decision of the Authority follows:
3 FLRA No. 27
U.S. DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
Respondent
and
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
Complainant
Assistant Secretary
Case No. 31-11732(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. NO EXCEPTIONS WERE FILED.
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
(45 F.R. 3482, JANUARY 17, 1980). 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, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /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 U.S. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
PORTSMOUTH, NEW HAMPSHIRE, SHALL:
1. CEASE AND DESIST FROM:
(A) DISCOURAGING, BY IMPLIED THREATS OR OTHER MEANS, KATHERINE
DOWALIBY OR ANY OTHER
EMPLOYEE FROM EXERCISING THE RIGHTS ACCORDED THEM BY THE ORDER TO
FILE OR PROCESS GRIEVANCES
UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
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
PORTSMOUTH NAVAL SHIPYARD AND SHALL BE POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL
TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., MAY 12, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
KATHERINE DOWALIBY OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS
ACCORDED THEM BY EXECUTIVE ORDER 11491, AS AMENDED, TO FILE OR PROCESS
GRIEVANCES UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
. . . .
(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: 441 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS
02116, AND WHOSE TELEPHONE NUMBER IS: (617)223-0920.
NOVEMBER 2, 1979
MEMORANDUM TO: THE FEDERAL LABOR RELATIONS AUTHORITY
FROM: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO 29 C.F.R. 203.23(B) AS RECENTLY AMENDED BY 5 C.F.R.
2400.2 (FEDERAL REGISTER, VOL. 44, NO. 1, TUESDAY, JANUARY 2, 1979), I
AM HEREBY TRANSFERRING THE ABOVE CASE TO THE AUTHORITY. ENCLOSED ARE
COPIES OF MY DECISION AND THE TRANSMITTAL FORM SENT TO THE PARTIES. I
AM TRANSMITTING DIRECTLY TO THE AUTHORITY THE ORIGINAL AND ADDITIONAL
COPIES OF MY DECISION AS WELL AS THE TRANSCRIPT, EXHIBITS, BRIEFS,
COPIES OF THE SERVICE SHEET AND TRANSMITTAL FORM.
ENCLOSURES
NOTICE OF TRANSMITTAL OF DECISION AND ORDER
THE ABOVE-ENTITLED CASE HAVING BEEN HEARD BEFORE THE UNDERSIGNED
ADMINISTRATIVE LAW JUDGE PURSUANT TO THE REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS, AND THE UNDERSIGNED HAVING
PREPARED HIS DECISION AND ORDER, A COPY OF WHICH IS ATTACHED HERETO, AND
HAVING TRANSFERRED THE CASE TO FEDERAL LABOR RELATIONS AUTHORITY,
PURSUANT TO 29 C.F.R. 203.23(B), AS RECENTLY AMENDED BY 5 C.F.R. 2400.2
(FEDERAL REGISTER, VOL. 44, NO. 1, TUESDAY, JANUARY 2, 1979).
PLEASE BE ADVISED THAT IF ANY PARTY WISHES TO FILE EXCEPTIONS TO THE
ATTACHED DECISION AND ORDER PURSUANT TO SECTION 203.23(C) OF THE
REGULATIONS, SUCH EXCEPTIONS MUST BE RECEIVED BY THE FEDERAL LABOR
RELATIONS AUTHORITY IN WASHINGTON, D.C., ON OR BEFORE NOVEMBER 19, 1979.
EXCEPTIONS SHOULD BE ADDRESSED TO THE FEDERAL LABOR RELATIONS
AUTHORITY, 1900 E STREET, N.W., ROOM 7469, WASHINGTON, D.C. 20424.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 2, 1979
WASHINGTON, D.C.
A. GENE NIRO, ESQUIRE
AREA REPRESENTATIVE
NAVAL CIVILIAN PERSONNEL COMMAND
NORTHERN FIELD DIVISION
666 SUMMER STREET
BUILDING 113
BOSTON, MASSACHUSETTS
FOR THE RESPONDENT
JAMES LYONS
DIRECTOR OF PUBLIC EMPLOYEE AFFAIRS
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
1126-- 16TH STREET, N.W.
SUITE 111
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON JUNE 14, 1978, UNDER
EXECUTIVE ORDER 11491, AS AMENDED, BY THE INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, (HEREINAFTER CALLED THE
UNION OR COMPLAINANT), AGAINST THE U.S. DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD, (HEREINAFTER CALLED THE RESPONDENT OR
ACTIVITY), A "SECOND NOTICE OF HEARING ON COMPLAINT" WAS ISSUED BY THE
REGIONAL DIRECTOR FOR THE BOSTON, MASSACHUSETTS REGION OF THE FEDERAL
LABOR RELATIONS AUTHORITY ON AUGUST 13, 1979.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE OF ITS
ACTIONS IN ATTEMPTING TO DISSUADE AN EMPLOYEE FROM PURSUING A GRIEVANCE
THROUGH ARBITRATION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON SEPTEMBER 18, 1979, IN
BOSTON, MASSACHUSETTS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, ADDUCE EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND ORDER.
FINDINGS OF FACT
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF SOME 1000 NONSUPERVISORY
EMPLOYEES, INCLUDING A NUMBER OF DATA PROCESSORS, LOCATED AT THE
PORTSMOUTH NAVAL SHIPYARD. THE UNION AND THE RESPONDENT ARE PARTIES TO
A COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINS A TWO STEP GRIEVANCE
PROCEDURE CULMINATING IN ARBITRATION.
PRIOR TO THE SPRING OF 1977, THE DATA PROCESSING PERSONNEL, WHICH
HELD THE CLASSIFICATION 115-12 (DATA PROCESSING), CUSTOMARILY WORKED
ONLY THE MORNING (7:30 A.M.-4:00 P.M.) AND AFTERNOON (3:45 P.M.-12:15
A.M.) SHIFTS.
IN THE SPRING OF 1977, KATHERINE DOWALIBY, CLASSIFIED GS-5 CODE
115-12 (DATA PROCESSING), WAS INFORMED THAT RESPONDENT INTENDED TO
ASSIGN HER AS A "TEMPORARY APPOINTMENT" TO THE MIDNIGHT SHIFT. SHE
IMMEDIATELY INFORMED HER SUPERVISOR GORDON WEEKS THAT SHE COULD NOT
EMOTIONALLY AND PHYSICALLY HANDLE THE MIDNIGHT SHIFT AND THAT SHE WAS
GOING TO HAVE TO RESIGN. MR. WEEKS INQUIRED IF SHE WOULD BE WILLING TO
WORK THE SECOND SHIFT IF HE COULD SECURE A VOLUNTEER FOR THE NIGHT
SHIFT. ALTHOUGH SHE HAD BEEN WORKING THE FIRST SHIFT, MS. DOWALIBY
RESPONDED IN THE AFFIRMATIVE.
DURING THE SUMMER OF 1977, MS. DOWALIBY DISCUSSED THE POSSIBILITY OF
FILING A GRIEVANCE OVER THE NEW MIDNIGHT SHIFT ASSIGNMENT WITH BOTH HER
FELLOW DATA PROCESSORS AND HER UNION STEWARD, RUSTY CALLAHAN.
THEREAFTER, MS. DOWALIBY ALONG WITH A NUMBER OF HER FELLOW EMPLOYEES IN
CLASSIFICATION 115-12 (DATA PROCESSING) INDIVIDUALLY SIGNED AND FILED
GRIEVANCES CONCERNING ROTATING CODE 115 EMPLOYEES TO THE MIDNIGHT SHIFT
ASSIGNMENT. THE GRIEVANCES ALLEGED THAT THE CONTRACT DID NOT GIVE
RESPONDENT THE RIGHT TO ASSIGN EMPLOYEES TO A SHIFT BY ROTATION. MS.
DOWALIBY'S GRIEVANCE, WHICH IS DATED SEPTEMBER 28, 1977, TOOK THE
POSITION THAT ROTATION OF CODE 115 EMPLOYEES WAS IN VIOLATION OF THE
CONTRACT AND REQUESTED AS A REMEDY THAT ALL DATA PROCESSORS REMAIN ON
THE MORNING SHIFT (7:30 A.M.-4:00 P.M.).
IN SEPTEMBER OF 1977, MS. DOWALIBY APPLIED FOR AND RECEIVED A
TRANSFER FROM CODE 115 TO CODE 105. THIS TRANSFER REMOVED HER FROM THE
DANGER OF BEING INVOLUNTARILY ASSIGNED TO THE NEWLY CREATED CODE 115
POSITION ON THE MIDNIGHT SHIFT.
SUBSEQUENTLY, ON OR ABOUT OCTOBER 18, 1977, UNION AND MANAGEMENT
REPRESENTATIVES MET FOR PURPOSES OF DISCUSSING THE GRIEVANCES CONCERNING
THE MIDNIGHT SHIFT ASSIGNMENT. INASMUCH AS MS. DOWALIBY HAD BEEN
TRANSFERRED TO CODE 105, HER UNION STEWARD INFORMED HER THAT HER
PRESENCE AT THE MEETING WAS NOT REQUIRED. THE UNION STEWARD, IN
RESPONSE TO AN INQUIRY FROM MR. MORTON PAGE, DIRECTOR OF MANAGEMENT
ENGINEERING AND DATA PROCESSING, WHO WAS REPRESENTING MANAGEMENT OF THE
OCTOBER 18TH MEETING, INFORMED MR. PAGE OF THE REASONS FOR THE ABSENCE
OF MS. DOWALIBY FROM THE MEETING. ACCORDING TO THE UNCONTRADICTED
TESTIMONY OF MR. PAGE, DURING THE COURSE OF THE MEETING HE POINTED OUT
THAT SHOULD BE ARBITRATOR FIND MERIT IN THE GRIEVANCES RESPONDENT MIGHT
WELL BE FORCED TO DISCONTINUE ITS POLICY OF ASSIGNING DATA PROCESSORS ON
A ROTATIONAL BASIS AND INSTEAD ASSIGN A SINGLE DATA PROCESSOR TO THE
MIDNIGHT SHIFT ON A PERMANENT BASIS. FOLLOWING THE MEETING, THE UNION,
WHICH WAS DISSATISFIED WITH RESPONDENT'S POSITION, ELECTED TO PROCESS
THE GRIEVANCES TO ARBITRATION.
IN EARLY NOVEMBER OF 1977, MS. DOWALIBY TRANSFERRED BACK TO CODE OR
CLASSIFICATION 115. INASMUCH AS SHE THEN BECAME SUBJECT TO ASSIGNMENT
TO THE MIDNIGHT SHIFT, WHICH WAS THEN BEING FILLED ON A ROTATING BASIS,
SHE REQUESTED THE UNION TO REINSTATE HER GRIEVANCE AND INCLUDE IT IN THE
PENDING ARBITRATION PROCEEDING. PURSUANT TO HER REQUEST, THE UNION SENT
A LETTER DATED NOVEMBER 23, 1977, TO MR. D. HOLSTER, DIRECTOR OF
INDUSTRIAL RELATIONS, WHEREIN IT WAS REQUESTED THAT HER GRIEVANCE BE
REINSTATED AND SUBMITTED TO ARBITRATION ALONG WITH THE GRIEVANCES OF HER
FELLOW EMPLOYEES IN CODE 115.
ON DECEMBER 6, 1977, AT ABOUT 7:50 A.M. MS. DOWALIBY WAS TOLD BY MS.
MARLENE YOUNG, ADMINISTRATIVE ASSISTANT OF MR. PAGE, THAT MR. PAGE WAS
ON THE TELEPHONE AND WANTED TO TALK TO HER. UPON PICKING UP THE
TELEPHONE, MS. DOWALIBY WAS TOLD BY MR. PAGE THAT HE HAD JUST BEEN
INFORMED THAT SHE HAD REFILED HER GRIEVANCE ABOUT THE MIDNIGHT SHIFT.
MR. PAGE THEN PROCEEDED TO EXPLAIN TO MS. DOWALIBY THAT RESPONDENT COULD
SETTLE THE GRIEVANCES BY MERELY ABANDONING THE ROTATIONAL SYSTEM AND
ASSIGNING ONE PERSON ON A PERMANENT BASIS TO THE MIDNIGHT SHIFT.
INASMUCH AS SHE WAS THE JUNIOR EMPLOYEE IN CODE 115, SHE WOULD MOST
LIKELY GET THE PERMANENT ASSIGNMENT. MS. DOWALIBY REPLIED THAT EMPLOYEE
HELEN ROGERS WAS LEAVING RESPONDENT'S EMPLOY IN THE NEAR FUTURE AND THAT
MS. ROGER'S REPLACEMENT WOULD THEN BE THE JUNIOR EMPLOYEE IN CODE 115.
THE CONVERSATION ENDED WHEN MS. DOWALIBY DECLINED THE OPPORTUNITY TO
THINK THE MATTER OVER AND MADE IT CLEAR THAT SHE DID NOT WANT TO
WITHDRAW HER GRIEVANCE.
ACCORDING TO MR. PAGE, THE REASON HE TELEPHONED MS. DOWALIBY WAS TO
MAKE SURE THAT SHE WAS ACQUAINTED WITH THE DISCUSSIONS WHICH TOOK PLACE
AT THE OCTOBER 18TH MEETING WITH RESPECT TO THE POSSIBLE CONSEQUENCES OF
AN ARBITRATION AWARD IN FAVOR OF THE GRIEVANTS. NAMELY, THAT THE MOST
JUNIOR EMPLOYEE MIGHT BE ASSIGNED TO THE MIDNIGHT SHIFT ON A PERMANENT
BASIS. MR. PAGE FELT THAT ROTATION WAS THE BEST SYSTEM AND DID NOT WANT
TO BE FORCED TO PUT ANYONE ON THE MIDNIGHT SHIFT ON A PERMANENT BASIS.
IT WAS FOR THIS REASON THAT HE HAD ATTEMPTED TO DISSUADE MS. DOWALIBY AS
WELL AS THE OTHER GRIEVANTS FROM PROCEEDING WITH THEIR GRIEVANCES TO
ARBITRATION.
DISCUSSION AND CONCLUSIONS
IT IS WELL SETTLED THAT THE RIGHT TO FILE AND PROCESS GRIEVANCES
UNDER A CONTRACTUAL GRIEVANCE PROCEDURE FALLS WITHIN THE AMBIT OF
SECTION 1(A) OF THE EXECUTIVE ORDER WHICH PROVIDES THAT EMPLOYEES HAVE
THE "RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM,
JOIN AND ASSIST A LABOR ORGANIZATION." ACCORDINGLY, IT HAS BEEN HELD
THAT INTERFERENCE BY AN ACTIVITY WITH THE FILING AND/OR PROCESSING OF A
GRIEVANCE CONSTITUTES A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE
ORDER. /2/
IN THE INSTANT CASE MR. PAGE, RESPONDENT'S REPRESENTATIVE, FOR
REASONS UNRELATED TO THE MECHANICS OF THE CONTRACTUAL GRIEVANCE
PROCEDURE, SAW FIT TO PERSONALLY CONTRACT MS. DOWALIBY CONCERNING THE
POSSIBLE CONSEQUENCES OF HER REINSTATED GRIEVANCE. DURING THE ENSUING
UNSOLICITED DISCUSSION MR. PAGE MADE IT CLEAR THAT HE COULD UNILATERALLY
SETTLE MS. DOWALIBY'S GRIEVANCE AND THOSE OF HER FOUR FELLOW EMPLOYEES
BY UNILATERALLY ABANDONING THE ROTATIONAL SHIFT POLICY AND ASSIGNING ONE
PERSON ON A PERMANENT BASIS TO THE MIDNIGHT SHIFT. MR. PAGE FURTHER
STATED THAT IF SUCH ACTION WAS TAKEN MS. DOWALIBY, BY REASON OF HER LOW
SENIORITY STANDING, WOULD BE THE PERSON ASSIGNED TO THE MIDNIGHT SHIFT.
MR. PAGE ADMITTED THAT HE WAS OF THE OPINION THAT ROTATION WAS THE MOST
EQUITABLE METHOD AND FOR THIS REASON SOUGHT TO DISSUADE THE EMPLOYEES
FROM PROCEEDING FURTHER WITH THEIR RESPECTIVE GRIEVANCES.
VIEWING THE CONVERSATION OF DECEMBER 6TH IN ITS ENTIRETY AND THE
CIRCUMSTANCES SURROUNDING SAME, I.E. THE ABSENCE OF THE MS. DOWALIBY'S
APPOINTED UNION REPRESENTATIVE, I CONCLUDE THAT MR. PAGE, IRRESPECTIVE
OF ANY ALTRUISTIC INTENTIONS HE MAY HAVE HAD, INTERFERED WITH THE RIGHTS
ACCORDED MS. DOWALIBY UNDER SECTION 1(A) OF THE ORDER TO FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL FILE AND/OR PROCESS GRIEVANCES.
WHILE IT MIGHT WELL BE TRUE THAT THE OUTCOME OF THE GRIEVANCES, EITHER
BY UNILATERAL MANAGEMENT ACTION OR AN ADVERSE DECISION OF THE
ARBITRATOR, WOULD BE THE CANCELLATION OF THE POLICY OF ROTATION AND THE
ASSIGNMENT OF AN EMPLOYEE ON A PERMANENT BASIS TO THE MIDNIGHT SHIFT,
THE FACT REMAINS THAT NO SUCH ACTION HAD BEEN EFFECTED. IN SUCH
CIRCUMSTANCES, MR. PAGE'S GRATUITOUS REMARKS CONSTITUTED AN IMPLIED
THREAT TO MS. DOWALIBY THAT IRRESPECTIVE OF THE MERITS OF HER GRIEVANCE,
IF SHE CONTINUED TO PURSUE SAME, SHE, BY VIRTUE OF HER LOW SENIORITY
STANDING, WOULD BE ASSIGNED TO THE MIDNIGHT SHIFT. THIS IS PARTICULARLY
TRUE IN VIEW OF THE FACT THAT RESPONDENT HAD BEEN PUT ON NOTICE THAT MS.
DOWALIBY WOULD RESIGN RATHER THAN WORK THE MIDNIGHT SHIFT.
ACCORDINGLY, BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT
RESPONDENT COERCED, RESTRAINED AND INTERFERED WITH MS. DOWALIBY IN
EXERCISE OF HER SECTION 1(A) RIGHTS IN VIOLATION OF SECTION 19(A)(1) OF
THE EXECUTIVE ORDER.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
AUTHORITY HEREBY ORDERS THAT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH,
NEW HAMPSHIRE, SHALL:
1. CEASE AND DESIST FROM DISCOURAGING, BY IMPLIED THREATS OR OTHER
MEANS, KATHERINE DOWALIBY OR ANY OTHER EMPLOYEE FROM EXERCISING THE
RIGHTS ACCORDED THEM BY THE ORDER TO FILE OR PROCESS GRIEVANCES UNDER
THE CONTRACTUAL GRIEVANCE PROCEDURE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
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 PORTSMOUTH NAVAL SHIPYARD
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 2, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
KATHERINE DOWALIBY OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS
ACCORDED THEM BY EXECUTIVE ORDER 11491, AS AMENDED, TO FILE OR PROCESS
GRIEVANCES UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.
. . . .
(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: 441 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS
02116, AND WHOSE TELEPHONE NUMBER IS: 617-223-0920.
SERVICE SHEET
"DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE BURTON S.
STERNBURG WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
SIGNATURE: LINDA ENOCH
A. GENE NIRO, ESQUIRE
AREA REPRESENTATIVE
NAVAL CIVILIAN PERSONNEL COMMAND RESPONDENT ATTORNEY
NORTHERN FIELD DIVISION
666 SUMMER STREET
BUILDING 113
BOSTON, MA
JAMES LYONS
DIRECTOR OF PUBLIC EMPLOYEE AFFAIRS FOR THE COMPLAINANT
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
1126 - 16TH STREET, NW.
SUITE 111
WASHINGTON, .D.C. 20036
REGULAR MAIL:
FEDERAL LABOR RELATIONS AUTHORITY
1900 "E" STREET, NW., RM. 7469
WASHINGTON, D.C. 20424
ONE COPY TO EACH REGIONAL DIRECTOR - RD BOSTON
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET, NW.
WASHINGTON, D.C. 20415
MR. RODNEY A. BOWER, PRESIDENT
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, AFL-CIO
1126 - 16TH STREET, NW., SUITE 100 WASHINGTON, D.C. 20036
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF 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.
/2/ CF. FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC CONTROL TOWER,
GREATER PITTSBURGH AIRPORT, PITTSBURGH, PA., A/SLMR 920; DEPT. OF
DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR 53; DEPT. OF NAVY, PUGET SOUND
NAVAL SHIPYARD, BREMERTON, WASHINGTON, A/SLMR 582; NLRB, REGION 17, FT.
NOTE 3, A/SLMR 295; U.S. DEPT. OF THE ARMY, FORT POLK, LOUISIANA,
A/SLMR 1100.