[ v05 p725 ]
05:0725(97)CA
The decision of the Authority follows:
5 FLRA No. 97
UNITED STATES MARINE CORPS
MARINE CORPS LOGISTICS BASE
BARSTOW, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO
Charging Party
Case No. 8-CA-554
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-NOTED PROCEEDING ISSUED HIS
RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED
IN THE UNFAIR LABOR PRACTICES 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 TO THE JUDGE'S RECOMMENDED
DECISION AND ORDER.
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. /1/ THE RULINGS ARE HEREBY AFFIRMED.
UPON CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND
THE ENTIRE RECORD IN THIS CASE, AND NOTING PARTICULARLY THE ABSENCE OF
EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS.
ORDER /2/
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 UNITED STATES MARINE CORPS, MARINE
CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) TERMINATING, AND OTHERWISE DISCRIMINATING AGAINST, EMPLOYEES
BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 1482.
(B) MAKING STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO MUCH
TIME ON THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
(C) INTERFERING WITH THE INVESTIGATION OF GRIEVANCES BY
REPRESENTATIVES OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1482.
(D) MAKING STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
RECOMMENDED BECAUSE OF THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
(E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) OFFER OSCAR CARR IMMEDIATE AND FULL REINSTATEMENT TO HIS FORMER
OR SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY
OR OTHER RIGHTS AND PRIVILEGES, AND MAKE HIM WHOLE, CONSISTENT WITH
APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME HE MAY HAVE
SUFFERED BY REASON OF HIS UNLAWFUL TERMINATION BY PAYING TO HIM A SUM OF
MONEY EQUAL TO THE AMOUNT HE WOULD HAVE EARNED OR RECEIVED FROM THE DATE
OF HIS TERMINATION TO THE DATE OF THE OFFER OF REINSTATEMENT, LESS ANY
AMOUNT EARNED THROUGH OTHER EMPLOYMENT DURING THE ABOVE-NOTED PERIOD.
(B) POST AT ITS MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA,
FACILITIES 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 COMMANDING OFFICER OF THE MARINE
CORPS LOGISTICS BASE, 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 COMMANDING OFFICER, SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
ISSUED, WASHINGTON, D.C., MAY 28, 1981
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 TERMINATE, OR OTHERWISE DISCRIMINATE AGAINST, OUR
EMPLOYEES BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 1482.
WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO
MUCH TIME ON THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
WE WILL NOT INTERFERE WITH THE INVESTIGATION OF GRIEVANCES BY
REPRESENTATIVES OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1482.
WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
RECOMMENDED BECAUSE OF THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL OFFER OSCAR CARR IMMEDIATE AND FULL REINSTATEMENT TO HIS
FORMER OR SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS
SENIORITY AND OTHER RIGHTS AND PRIVILEGES, AND MAKE HIM WHOLE,
CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME
HE MAY HAVE SUFFERED BY REASON OF HIS UNLAWFUL TERMINATION BY PAYING TO
HIM A SUM OF MONEY EQUAL TO THE AMOUNT HE WOULD HAVE EARNED OR RECEIVED
FROM THE DATE OF HIS TERMINATION TO THE DATE OF THE OFFER OF
REINSTATEMENT, LESS ANY AMOUNT EARNED THROUGH OTHER EMPLOYMENT DURING
THE ABOVE-NOTED PERIOD.
(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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 8, WHOSE
ADDRESS IS: 350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CA
90071, AND WHOSE TELEPHONE NUMBER IS (213) 688-3805; FTS 798-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ROBERT F. GRIEM, ESQ. AND
RICHARD A.SCHULTZ, ESQ.
FOR THE RESPONDENT
E. A. JONES, ESQ. AND
JOSEPH SWERDZEWSKI, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON JULY 30, 1980 BASED UPON A CHARGE FILED ON JUNE 13, 1980 BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO, HEREIN
CALLED THE UNION.
THE COMPLAINT ALLEGES THAT THE MARINE CORPS LOGISTICS BASE, BARSTOW,
CALIFORNIA, HEREIN CALLED THE RESPONDENT, HAD ENGAGED IN, AND IS
ENGAGING IN, UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTION
7116(A)(1) AND (2) OF THE STATUTE, IN THAT (1) ON OR ABOUT JUNE 27,
1980, RESPONDENT TERMINATED, AND HAS FAILED AND REFUSED, AND CONTINUES
TO FAIL AND REFUSE, TO REINSTATE EMPLOYEE OSCAR CARR, HEREIN CALLED
CARR, TO HIS FORMER POSITION OF EMPLOYMENT WITH RESPONDENT BECAUSE HE
ENGAGED IN ACTIVITY PROTECTED BY 5 USC 7102; (2) ON OR ABOUT JUNE 11,
1980, RESPONDENT, THROUGH ITS AGENT AND SUPERVISOR, ROBERT WATKINS, AT
ITS MARINE CORPS LOGISTICS BASE, MADE STATEMENTS TO EMPLOYEES THAT THEY
WERE SPENDING TOO MUCH TIME ON UNION BUSINESS AND THAT THEY COULD SPEND
ONLY ONE HOUR ON OFFICIAL TIME INVESTIGATING GRIEVANCES; AND (3) ON OR
ABOUT JUNE 11, 1980, RESPONDENT, THROUGH JOHN FITE, ITS AGENT AND
SUPERVISOR, AT ITS MARINE CORPS LOGISTICS BASE, MADE A STATEMENT TO
EMPLOYEES THAT THEIR REMOVAL WAS BEING RECOMMENDED FOR SPENDING TOO
MUCH
TIME ON UNION BUSINESS.
RESPONDENT DENIES ANY VIOLATION OF THE STATUTE AND ASSERTS THAT CARR
WAS TERMINATED FOR TARDINESS, ABSENTEEISM AND MISUSE OF LEAVE. FURTHER,
RESPONDENT CONTENDS THAT CARR'S TERMINATION WAS "IN THE WORKS" EVEN
BEFORE THE ALLEGED SEC. 7116(A)(1) STATEMENTS WHICH IT ALSO DENIES.
AT THE HEARING IN BARSTOW, CALIFORNIA ON SEPTEMBER 16, 1980, ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE,
EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. THEREAFTER,
RESPONDENT AND COUNSEL FOR GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN
DULY CONSIDERED. TO THE EXTENT APPLICABLE, THE PROPOSED FINDINGS OF
FACT AND CONCLUSIONS OF LAW SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED
WITH APPROPRIATE MODIFICATION.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, /3/ AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
FINDINGS OF FACT
1. OSCAR CARR WAS HIRED BY THE MARINE CORPS LOGISTICS BASE, BARSTOW,
CALIFORNIA, ON SEPTEMBER 26, 1979, AS A WAREHOUSEMAN-FORKLIFT OPERATOR
IN THE MATERIAL DIVISION. SHORTLY AFTER HIS HIRING, CARR JOINED THE
UNION AS A MEMBER. CARR UNDERWENT TRAINING AS A SHOP STEWARD FOR TWELVE
WEEKS FROM JANUARY THROUGH APRIL 1980. RESPONDENT WAS NOTIFIED OF
CARR'S CERTIFICATION AS A SHOP STEWARD IN MATERIEL DIVISION ON APRIL 10,
1980 (G.C. EXH. NO. 23). /4/
2. CARR WAS HIRED UNDER THE VETERANS READJUSTMENT APPOINTMENT (VRA)
PROGRAM, WHICH IS DESIGNED TO ASSIST VETERANS IN FINDING CIVILIAN
EMPLOYMENT AND IN ADJUSTING TO CIVILIAN LIFE (G.C. EXH. NO. 2). CARR,
WHO IS THIRTY-SEVEN YEARS OLD, HAS OVER NINETEEN YEARS OF MILITARY
SERVICE. EMPLOYEES HIRED UNDER THE VRA PROGRAM ARE REQUIRED TO JOINTLY
DEVELOP WITH THEIR SUPERVISOR A TRAINING OR EDUCATIONAL PROGRAM TO
DEVELOP THE EMPLOYEE'S JOB SKILLS (G.C. EXH. NO. 7). CARR COMPLETED A
COURSE ON WAREHOUSING ON APRIL 24, 1980, AND HAD ALMOST COMPLETED A
SECOND, SIMILAR COURSE AT THE TIME OF HIS TERMINATION ON JUNE 27, 1980
(G.C. EXH. NO. 9).
3. A FURTHER REQUIREMENT UNDER THE VRA PROGRAM IS THAT AN EMPLOYEE
BE PERIODICALLY EVALUATED ON HIS JOB PERFORMANCE (G.C. EXH. NO. 7). ON
OR ABOUT FEBRUARY 25, 1980, CARR RECEIVED AN EVALUATION FOR THE PERIOD
OF OCTOBER 1, 1979, THROUGH DECEMBER 31, 1979, FROM HIS SUPERVISOR, JOHN
FITE. CARR WAS RATED IN ATTENDANCE AND PUNCTUALITY BY FITE AS
"REGULAR," AND IN DEPENDABILITY AS "USUALLY DEPENDABLE." FITE NOTED WITH
REGARD TO "QUANTITY OF WORK" THAT CARR MET REQUIREMENTS WHILE IN
"QUALITY OF WORK" HE WAS AVERAGE. OVERALL, FITE AND REVIEWER ROBERT
WATKINS (FITE'S GENERAL FOREMAN) RATED CARR "AVERAGE" (G.C. EXH. NO.
10).
A. DURING THE PERIOD COVERED BY CARR'S FIRST EVALUATION-- OCTOBER 1
THROUGH DECEMBER 31, 1979-- CARR WAS ONLY LATE FOR WORK TWICE, AT THE
BEGINNING OF THE RATING PERIOD (G.C. EXH. NO. 12). ON NOVEMBER 19,
1979, CARR WAS ON SICK LEAVE AFTER BEING SENT TO THE BASE DISPENSARY BY
FITE WITH A FEVER. THE CORPSMAN AT THE DISPENSARY TOLD CARR TO SEE HIS
PERSONAL PHYSICIAN. NOT HAVING ONE, CARR WENT TO THE FORT IRWIN
DISPENSARY (CARR'S NATIONAL GUARD UNIT TRAINS THERE). THOUGH NOT
REQUIRED TO, CARR GAVE FITE A COPY OF THE SICK SLIP OBTAINED FROM THE
FORT IRWIN DISPENSARY.
4. CARR RECEIVED A SECOND EVALUATION FROM FITE ON APRIL 15, 1980,
FOR THE PERIOD JANUARY 1, 1980, TO MARCH 31, 1980 (G.C. EXH. NO. 11).
CARR'S RATING FOR ATTENDANCE AND PUNCTUALITY REMAINED "REGULAR," BUT HIS
DEPENDABILITY IMPROVED TO "ABOVE AVERAGE." SIMILARLY, HIS RATING FOR
QUANTITY OF WORK WAS RAISED TO "FREQUENTLY EXCEEDS REQUIREMENTS" AND HIS
RATING FOR QUALITY OF WORK WAS RAISED TO "VERY GOOD." OVERALL, CARR'S
PERFORMANCE WAS RATED BY FITE (AND REVIEWED BY WATKINS) AS "VERY GOOD"
AND IMPROVEMENT FROM HIS PREVIOUS RATING OF "AVERAGE."
A. DURING THE PERIOD COVERED BY CARR'S APRIL 15 EVALUATION, HE WAS
LATE ONCE-- THIRTY MINUTES ON JANUARY 18, 1980-- WHEN THE CAR IN WHICH
HE WAS CARPOOLING BROKE DOWN. CARR WAS ON SICK LEAVE ON JANUARY 21, 22,
AND 23, 1980, AS A RESULT OF AN ACCIDENT DUE TO HIS CAR'S STUCK
ACCELERATOR. HE KEPT FITE APPRISED OF HIS WHEREABOUTS ON EACH OF THE
DAYS AND, THOUGH NOT REQUIRED TO, SUPPLIED FITE, ON JANUARY 24, WITH A
COPY OF THE DOCTOR'S SLIP ORDERING TWO DAYS' BED REST FOR JANUARY 22 AND
23, AND INDICATING HE WAS SEEN BY A DOCTOR ON JANUARY 21. ON FEBRUARY
15, 1980, CARR WAS GRANTED FOUR HOURS OF ANNUAL LEAVE BY FITE TO LOOK
FOR A NEW CAR. ON MARCH 24, 1980, CARR WAS ON EIGHT HOURS SICK LEAVE.
THE ONLY COUNSELING CARR RECEIVED REGARDING HIS USE OF LEAVE DURING THIS
PERIOD WAS IN THE SESSION WITH FITE REGARDING HIS APRIL 15, 1980,
PERFORMANCE EVALUATION, FROM WHICH, AS NOTED ABOVE, CARR UNDERSTOOD THAT
HIS ATTENDANCE WAS SATISFACTORY.
B. CARR WAS GRANTED EIGHT HOURS ANNUAL LEAVE FOR MONDAY, APRIL 7,
1980, TO SERVE AS A PALL BEARER IN THE FUNERAL OF THE WIFE OF A FRIEND.
THIS LAST APPROVAL WOULD HAVE OCCURRED ONE WEEK BEFORE FITE COMPLETED
CARR'S SECOND EVALUATION. /5/ AS PREVIOUSLY NOTED, THE WRITTEN
EVALUATION RATED CARR'S ATTENDANCE AS "REGULAR" AND HIS DEPENDABILITY AS
"ABOVE AVERAGE."
5. CARR WAS ON ACTIVE DUTY FOR MILITARY TRAINING FOR THE NATIONAL
GUARD FOR A 3-WEEK PERIOD FROM APRIL 16, 1980, THROUGH MAY 7, 1980. FOR
TWO OF THESE WEEKS (APRIL 16 THROUGH APRIL 22 AND FROM APRIL 30 TO MAY
7), HE WAS CARRIED ON MILITARY LEAVE. FOR THE WEEK OF VOLUNTARY
MILITARY TRAINING IN BETWEEN, CARR, BY HIS ADVANCE REQUEST, WAS ON
APPROVED ANNUAL LEAVE. ALTHOUGH FITE APPARENTLY HAD NO PROBLEM IN
APPROVING THE LEAVE REQUEST, HIS SUPERIOR, WATKINS, FELT DIFFERENTLY
ABOUT THE MATTER WHEN HE HEARD ABOUT IT. THUS AFTER CARR RETURNED FROM
HIS MILITARY LEAVE, FITE TOLD CARR THAT WATKINS HAD CHEWED HIM OUT FOR
GRANTING CARR THE ADDITIONAL FORTY HOURS OF ANNUAL LEAVE FOR MILITARY
TRAINING. THIS WAS CONFIRMED BY WATKINS AT THE HEARING.
6. ON MAY 8, 1980, CARR CALLED IN SICK. THE FOLLOWING DAY CARR CAME
IN AND WENT TO THE BASE DISPENSARY AND TOOK A SLIP TO WATKINS AND FITE,
WHO COUNSELED HIM CONCERNING HIS METHOD OF CALLING IN ON MAY 8. FITE
APPROVED HIS LEAVE FOR BOTH DAYS (G.C. EXH. NO. 8). ON MAY 20 AND MAY
21, 1980, CARR WAS ON APPROVED ANNUAL LEAVE AS A RESULT OF HIS
AUTOMOBILE'S BREAKDOWN AND THE NECESSITY OF TOWING AND REPAIRING IT. ON
BOTH DAYS CARR ALERTED HIS SUPERVISOR OF THE SITUATION PRIOR TO THE
START OF HIS SHIFT. ON MAY 22, 1980, CARR WAS ON APPROVED SICK LEAVE
BECAUSE OF A COLD AND TEMPERATURE. THE FOLLOWING DAY CARR REPORTED TO
WORK BUT WAS UNABLE TO FINISH THE DAY DUE TO ILLNESS. HIS SUPERVISOR
SENT HIM TO THE BASE DISPENSARY WITH HIS LEADMAN; THE CORPSMAN THERE
SENT HIM HOME AND THE LEADMAN SO INFORMED FITE.
7. CARR FIRST WORKED AS A UNION STEWARD FOR ABOUT THREE HOURS TOTAL
ON MAY 28 AND 29, 1980. THEREAFTER, CARR WAS ASSIGNED BY UNION
PRESIDENT CHARLES WARE ON JUNE 5, 1980, TO STEWARD DUTIES ON A UNION
GRIEVANCE INVOLVING SAFETY SHOES. WHEN CARR REQUESTED A GREEN SLIP /6/
FROM FITE, FITE REPEATEDLY QUESTIONED CARR AS TO WHETHER HE WAS ACTUALLY
WORKING ON A UNION GRIEVANCE. CARR WAS EVENTUALLY RELEASED ON A GREEN
SLIP. GENERAL FOREMAN WATKINS CONTACTED WARE AND QUESTIONED HIM ABOUT
CARR'S ACTING AS A SHOP STEWARD. WATKINS EXPRESSED CONCERN TO WARE THAT
HE "DIDN'T HAVE TIME FOR THIS, THAT THEY HAD PRODUCTION WORK THAT HAD TO
BE DONE." CARR SPENT APPROXIMATELY FIVE TO SIX HOURS ON THE GRIEVANCE--
SOME OF THE TIME NECESSITATED BY A LACK OF COOPERATION FROM THE BASE
SAFETY OFFICE.
8. THE NEXT DAY, JUNE 6, 1980, CARR SOUGHT A GREEN SLIP FROM FITE TO
FURTHER INVESTIGATE THE SAFETY SHOE GRIEVANCE. FITE CLOSELY QUESTIONED
CARR ON THE MATTER EVEN AFTER CARR HAD GIVEN FITE THE INFORMATION
NECESSARY TO OBTAIN HIS RELEASE ON OFFICIAL TIME. FITE CALLED WARE FOR
VERIFICATION AND QUESTIONED HIM AS TO WHETHER CARR WAS ACTUALLY WORKING
ON A GRIEVANCE AND SUGGESTED THAT CARR HAD BEEN HIRED TO WORK, NOT TO
INVESTIGATE GRIEVANCES. WARE EXPLAINED THE REQUIREMENTS OF THE CONTRACT
AND THE LAW REGARDING OFFICIAL TIME FOR STEWARDS. CARR WAS FINALLY
GIVEN A GREEN SLIP BY FITE AND SPENT THREE TO FOUR HOURS ON THE
GRIEVANCE THAT DAY.
9. LATER, ON JUNE 6, CARR WAS AUTHORIZED BY CHIEF STEWARD BROWN TO
INVESTIGATE AN EMPLOYEE COMPLAINT. IN THE ABSENCE OF HIS SUPERVISOR,
CARR OBTAINED A GREEN SLIP FROM HIS LEADMAN AND PROCEEDED TO INTERVIEW
THE INVOLVED EMPLOYEE AND SUPERVISORS. LATER THAT DAY, WHILE CARR WAS
SPEAKING WITH THE COMPLAINANT AND A SUPERVISOR, FITE APPROACHED HIM AND
IN A DISTURBED MANNER ASKED HIM WHAT HE WAS DOING. AFTER CARR EXPLAINED
THE CIRCUMSTANCES, FITE TOOK CARR'S GREEN SLIP AND ASKED WHO HAD SIGNED
IT. CARR TOLD FITE THAT THE LEADMAN HAD SIGNED IT. FITE FOLDED THE
SLIP, PUT IT IN HIS POCKET AND WALKED AWAY WITHOUT ANY FURTHER COMMENT.
CARR, UNEASY AT BEING DEPRIVED OF THE GREEN SLIP-- WHICH AUTHORIZED HIM
TO BE OUTSIDE HIS WORK AREA-- CONTACTED CHIEF STEWARD BROWN AND RELATED
BOTH WHAT HAD OCCURRED AND HIS CONCERN ABOUT HOW HE WAS GOING TO GET
BACK INTO HIS WORK AREA (CARR, TR. 55:12-19; BROWN, TR. 118:21-25;
YOST, TR. 109:15 TO 110:2). BROWN CONTACTED FITE AND ADVISED HIM THAT
HE WAS INTERFERING WITH A STEWARD'S GRIEVANCE INVESTIGATION. ACCORDING
TO BROWN, FITE SAID HE INADVERTENTLY TOOK THE SLIP BUT AGREED TO RETURN
IT TO CARR. BROWN INSTRUCTED CARR WHERE HE COULD MEET FITE TO GET THE
SLIP. HOWEVER, FITE DID NOT RETURN THE GREEN SLIP TO CARR. WHEN CARR
LATER ASKED FITE ABOUT THE GREEN SLIP, FITE JUST WALKED OUT THE DOOR.
10. SOMETIME AFTER THE END OF MAY, WATKINS AND FITE DISCUSSED CARR'S
ABSENCE FROM WORK FOR UNION BUSINESS. WATKINS TOLD FITE THAT HE
CONSIDERED CARR'S UNION ACTIVITY EXCESSIVE, THAT CARR WAS SPENDING AN
"AWFUL LOT" OF TIME ON UNION BUSINESS (FITE, TR. 206:23 TO 208:12;
WATKINS, TR. 237:19 TO 138:6).
11. ON JUNE 11, 1980, CARR WAS ASSIGNED A GRIEVANCE TO INVESTIGATE
BY ACTING CHIEF STEWARD DELLA YOST. BECAUSE FITE WAS NOT AVAILABLE AT
THE WORK SITE, CARR CONTACTED WATKINS FOR A GREEN SLIP-- AS FITE HAD
INSTRUCTED HIM TO DO UNDER SUCH CIRCUMSTANCES. WATKINS MET CARR IN
FITE'S OFFICE AND AT THE OUTSET INDICATED CARR HAD BEEN TAKING OFF TOO
MUCH TIME FOR UNION BUSINESS. CARR RESPONDED THAT THE CONTRACT PROVIDED
FOR SUCH TIME OFF. WATKINS REJOINED THAT CARR HAD TAKEN TOO MUCH TIME
OFF LATELY, THAT HE WAS GONE ON UNION BUSINESS 50% OF THE TIME. CARR
AGAIN TRIED TO EXPLAIN THE CONTRACT REQUIREMENTS BUT WATKINS SAID HE
WANTED CARR BACK IN THE AREA IN ONE HOUR, THAT HE WAS LIMITED TO ONE
HOUR. CARR PROTESTED THAT MORE TIME MIGHT BE NECESSARY AND THAT THE
CONTRACT DID NOT HAVE SUCH A TIME LIMIT. WATKINS SAID CARR COULD MAKE
ANOTHER APPOINTMENT FOR ANOTHER TIME. CARR SUBSEQUENTLY CONTACTED DELLA
YOST AND REPEATED WHAT WATKINS HAD SAID TO HIM.
A. ACCORDING TO YOST'S CREDITED TESTIMONY, HE CONTACTED WATKINS AND
ASKED HIM IF HE HAD LIMITED CARR TO ONE HOUR. WATKINS AFFIRMED TO YOST
THAT HE HAD DONE SO AND THAT IT WAS BECAUSE CARR WAS SPENDING TOO MUCH
TIME ON UNION BUSINESS. YOST TOLD WATKINS HE WAS VIOLATING THE CONTRACT
AND READ ARTICLE 22, SECTION 4 TO HIM. WATKINS TOLD YOST THAT HE NEEDED
PRODUCTION FROM CARR AND THAT CARR COULD GET ANOTHER GREEN SLIP IF HE
NEEDED MORE TIME. AFTER CARR INVESTIGATED THE GRIEVANCE HE RETURNED TO
HIS WORK AREA AND WAS ASSIGNED WORK IN WAREHOUSE 406, WHERE HE SAW
WATKINS. WATKINS ASKED CARR IF FITE HAD SPOKEN TO HIM YET. CARR SAID
NO AND ASKED WHY. WATKINS TOLD CARR NOT TO WORRY ABOUT IT BECAUSE FITE
WOULD TALK TO HIM, AND HE THEN WALKED AWAY.
B. AROUND 2:30 THAT AFTERNOON-- JUNE 11-- FITE PULLED CARR AWAY FROM
HIS PAPERWORK IN BUILDING 406 AND TOOK HIM TO THE OFFICE WHERE HE CLOSED
THE DOOR. FITE INFORMED CARR THAT HE WAS GOING TO BE TERMINATED.
ACCORDING TO CARR, WHOM I CREDIT, FITE TOLD HIM THAT HIS WORK WAS NOT UP
TO PAR, THAT HE WAS SPENDING TOO MUCH TIME OFF HANDLING UNION BUSINESS,
AND THAT HE WAS GONE FROM WORK TOO MUCH. CARR ASKED FITE FOR A GREEN
SLIP TO TALK TO CHIEF STEWARD BROWN. FITE DENIED CARR THE OPPORTUNITY
TO CONSULT WITH THE CHIEF STEWARD, TELLING HIM HE COULD DO THAT ON
NON-DUTY TIME. THEREAFTER, CARR CONTACTED DELLA YOST AND TOLD HER THAT
HE HAD BEEN TERMINATED FOR SPENDING TOO MUCH TIME ON UNION BUSINESS.
/7/
12. ON JUNE 16, 1980, CARR REQUESTED OF FITE EIGHT HOURS OF ANNUAL
LEAVE FOR A JOB INTERVIEW IN LONG BEACH. IN WHAT APPEARS TO BE A
PARTICULARLY VINDICTIVE ACTION, FITE DENIED CARR THE LEAVE. CARR THEN
CONTACTED CHIEF STEWARD BROWN WHO THEN MET WITH CARR. AFTER LUNCH THEY
MET WITH FITE AND DISCUSSED FITE'S DENIAL OF THE LEAVE. FITE INDICATED
HE WOULD APPROVE THE LEAVE IF BROWN VERIFIED THE INTERVIEW; BROWN SAID
THAT THAT WAS INAPPROPRIATE AND RIDICULOUS. CARR LEFT THE MEETING AND
BROWN TALKED FURTHER WITH FITE. BROWN ASKED FITE IF THERE WAS ANY
ACTIONS PENDING AGAINST CARR. FITE SAID HE HAD MADE A RECOMMENDATION
FOR CARR'S "USE OF ANNUAL LEAVE, SICK LEAVE, MILITARY LEAVE AND TIME OFF
THE JOB FOR UNION AFFAIRS." /8/
13. LATER ON JUNE 16, 1980, FITE TOOK CARR AND ANOTHER EMPLOYEE TO
THE NEBO BASE WHERE THEY DROPPED OF SIGNS TO BE PAINTED. WITHOUT
EXPLANATION, FITE TOOK CARR INTO THE MATERIEL DIVISION BUILDING TO THE
MOWASP BRANCH DIRECTOR'S OFFICE WHERE CARR WAS HANDED A LETTER OF
TERMINATION DATED JUNE 16, 1980, AND EFFECTIVE JUNE 27, 1980 (G.C. EXH.
NO. 12). THE JUNE 16 LETTER SIGNED BY ACTING DIRECTOR JAMES BLAIR OF
MATERIEL DIVISION STATED THAT CARR'S EMPLOYMENT WAS BEING TERMINATED
BECAUSE OF HIS USE, DURING THE PERIOD SEPTEMBER 26, 1979 TO JUNE 10,
1980, OF 72 HOURS OF LEAVE (32 HOURS OF WHICH WERE CLAIMED TO BE
UNSCHEDULED) AND 66 HOURS OF SICK LEAVE (50.5 OF WHICH WERE ALLEGED TO
HAVE BEEN IN CONJUNCTION WITH A WEEKEND). IN ADDITION, THE LETTER CITED
THREE INSTANCES OF TARDINESS (G.C. EXH. NO. 12). /9/
14. SOMETIME SHORTLY AFTER CARR RECEIVED THE JUNE 16, 1980, NOTICE OF
REMOVAL, UNION PRESIDENT WARE ATTEMPTED TO ARRANGE A MEETING WITH ACTING
DIRECTOR BLAIR TO GIVE CARR A CHANCE TO GIVE HIS SIDE OF THE STORY TO
THE MANAGER WITH DECISION-MAKING AUTHORITY. BLAIR REFUSED SUCH A
MEETING INDICATING THAT THE MAN (CARR) WAS GOING OUT AND THAT WAS ALL
THERE WAS TO IT. CARR'S LAST DAY OF EMPLOYMENT WAS JUNE 27, 1980.
PROCEDURAL RULING-- SEQUESTRATION OF WITNESSES
AT THE COMMENCEMENT OF THE HEARING, THERE WERE NOT WITNESSES IN THE
COURTROOM AND THE UNDERSIGNED ASSUMED THAT THE PARTIES THEMSELVES HAD
AGREED UPON THE SEQUESTRATION OF WITNESSES. THE FIRST WITNESS FOR THE
GENERAL COUNSEL WAS CHARLES WARE, UNION PRESIDENT. UPON COMPLETION OF
HIS TESTIMONY THE GENERAL COUNSEL REQUESTED THAT WARE BE PERMITTED TO
REMAIN IN THE COURTROOM AS A TECHNICAL ASSISTANT INASMUCH AS HE WAS THE
CHARGING PARTY. THE REQUEST WAS GRANTED (TR. 34, 35). THE SECOND
WITNESS WAS OSCAR CARR WHO WAS "NAMED IN" THE CHARGE AS THE ALLEGED
DISCRIMINATE IN THIS CASE. CARR WAS NOT THE CHARGING PARTY ALTHOUGH HE
HAPPENED TO HAVE SIGNED THE CHARGE ON BEHALF OF THE CHARGING PARTY.
UPON CONCLUSION OF HIS TESTIMONY, THE GENERAL COUNSEL REQUESTED THAT
CARR BE PERMITTED TO REMAIN IN THE COURTROOM. RESPONDENT OBJECTED
UNLESS THE GENERAL COUNSEL WAIVED HIS RIGHT TO RECALL CARR AS A REBUTTAL
WITNESS.
THE GENERAL COUNSEL NOTED THAT THERE HAD BEEN NO SEQUESTRATION OF
WITNESSES (BY THE JUDGE). TO THIS, RESPONDENT ASSERTED THAT IT HAD
ASSUMED THAT ALL WITNESSES HAD BEEN SEQUESTRATED PURSUANT TO A "GENERAL"
AGREEMENT ENTERED INTO A PRIOR CASE AND ASSUMED TO BE APPLICABLE TO ALL
CASES (TR. 106). HAVING HEARD THE TESTIMONY OF CARR, AND NOTING THAT
DETERMINATION OF THE ISSUE NECESSARILY WOULD HINGE UPON CLOSE
CREDIBILITY RESOLUTIONS, I EXERCISED MY DISCRETION TO TREAT CARR IN THE
SAME MANNER AS ANY OTHER WITNESS AND REFUSED TO PERMIT HIM TO REMAIN IN
THE COURTROOM WHILE OTHER WITNESSES ON BOTH SIDES WOULD BE GIVING
TESTIMONY. I REMINDED THE GENERAL COUNSEL THAT HE COULD, OF COURSE,
CALL CARR AS A REBUTTAL WITNESS SHOULD HE SO DESIRE. THE GENERAL
COUNSEL TAKES EXCEPTION TO MY RULING AND IN HIS BRIEF REQUESTS "THAT THE
ADMINISTRATIVE LAW JUDGE RULE ON THIS OBJECTION IN HIS DECISION IN ORDER
TO PUT THIS QUESTION SQUARELY BEFORE THE AUTHORITY FOR DECISION." IN THE
PAGES THAT FOLLOW I HAVE ATTEMPTED TO ACCOMMODATE THIS REQUEST.
AT THE OUTSET, I WOULD POINT OUT THAT MOST OF THE DECIDED CASES ON
THIS SUBJECT USUALLY ARISE IN THE CONTEXT OF WHETHER IT IS AN ABUSE OF
DISCRETION FOR A JUDGE TO REFUSE TO EXCLUDE WITNESSES WHO ARE ALLEGED
DISCRIMINATES. HERE, I HAVE DONE JUST THE OPPOSITE; I HAVE EXCLUDED AN
ALLEGED DISCRIMINATE WHO, THE GENERAL COUNSEL ARGUES, HAD A RIGHT TO
REMAIN IN THE COURTROOM. IN THIS REGARD, THE GENERAL COUNSEL RELIES ON
POLICY OF THE NATIONAL LABOR RELATIONS BOARD, TO BE DISCUSSED LATER IN
THIS DECISION.
SECTION 2423.19(R) OF THE AUTHORITY'S RULES AND REGULATIONS GIVES AN
ADMINISTRATIVE LAW JUDGE THE AUTHORITY TO-- "SEQUESTER WITNESSES WHERE
APPROPRIATE." EVEN IF THE WITNESS IS A "PARTY" UNDER SECTION 2423.16, IT
IS CLEAR THAT "THE PARTICIPATION OF ANY PARTY SHALL BE LIMITED TO THE
EXTENT PRESCRIBED BY THE ADMINISTRATIVE LAW JUDGE." ACCORDINGLY, IN THE
ABSENCE OF ANY RULE OR POLICY TO THE CONTRARY, I CONCLUDE THAT THERE IS
NO LIMITATION ON MY DISCRETION IN THIS MATTER. WHETHER THERE SHOULD BE
SOME LIMITATION DEPENDS UPON WHETHER THE AUTHORITY WANTS TO ADOPT A
CONTROVERSIAL POLICY PROMULGATED BY A MAJORITY OF THE NATIONAL LABOR
RELATIONS BOARD MEMBERS, OR WHETHER IT WISHES TO ADOPT THE THINKING
EXPRESSED IN NUMEROUS COURT DECISIONS ON THIS SUBJECT.
THE ISSUE BEFORE THE AUTHORITY IN THIS CASE IS SIMPLY THIS: DID I
ABUSE MY DISCRETION BY EXCLUDING CARR AND, IF I DID, WAS THIS
PREJUDICIAL ERROR?
THE LEAD CASE ON SEQUESTRATION OF WITNESSES IN UNFAIR LABOR PRACTICE
HEARING IS N.L.R.B. V. STARK, 525 F.2D 422 (C.A. 2, 1975), 90 LRRM 3076,
CERT. DENIED 424 U.S. 967(1976), WHERE DISTINGUISHED JUDGE ALFRED
FRIENDLY, SPEAKING FOR THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
SEVERELY CRITICIZED THE NATIONAL LABOR RELATIONS BOARD'S POLICY OF
PERMITTING ALLEGED DISCRIMINATES TO REMAIN IN THE COURTROOM WHILE OTHER
WITNESSES WERE TESTIFYING. AS POINTED OUT BY THE COURT, IT WAS A
LONG-STANDING POLICY OF THE FEDERAL COURTS TO GIVE THE TRIAL JUDGE
DISCRETION TO EXCLUDE WITNESSES. EFFECTIVE JULY 1, 1976, HOWEVER, RULE
615 OF THE FEDERAL RULES OF EVIDENCE WENT EVEN FURTHER AND ADOPTED A
"MANDATORY EXCLUSION" RULE LONG ADVOCATED BY WIGMORE, AN EMINENT
AUTHORITY ON THE RULES OF EVIDENCE.
IN HIS LENGTHLY AND ERUDITE DISCUSSION OF THE ISSUES, JUDGE FRIENDLY
REFERRED TO PRIOR DECISIONS OF OTHER FEDERAL COURTS AS FOLLOWS:
EVEN BEFORE THE TIGHTENING EFFECTED BY THE TAFT-HARTLEY ACT, THE
BOARD HAD RECEIVED TWO
JUDICIAL INSTRUCTIONS WITH RESPECT TO APPLICATION OF "THE RULE." IN
N.L.R.B. V. QUALITY &
SERVICE LAUNDRY, INC., 131 F.2D 182, 183, 11 LRRM 621 (4 CIR. 1932),
CERT. DENIED, 318
U.S. 775, 12 LRRM 890(1943), A DISTINGUISHED PANEL (PARKER, SOPER AND
DOBIE, C.J.J.) ADVISED,
IN A PER CURIAM OPINION, THAT IN COURTS OF LAW THE ISSUE WHETHER OR
NOT WITNESSES ARE TO BE
SEPARATED "IS A MATTER RESTING IN THE SOUND DISCRETION OF THE TRIAL
COURT" AND THAT THE SAME
PRINCIPLE "SHOULD BE APPLIED TO HEARINGS BEFORE THE BOARD OR ITS
EXAMINERS." SHORTLY
THEREAFTER, JUDGE FLORENCE ALLEN, WRITING IN N.L.R.B. V. BURKE MACH.
TOOL CO., 133 F.2D 618,
621, 12 LRRM 546 (6 CIR. 1943), PUT THE MATTER MORE POSITIVELY:
THE BREADTH OF THE BOARD'S POWER EMPHASIZES THE IMPORTANCE OF
STRIVING FOR THAT ATMOSPHERE
OF PERFECT IMPARTIALITY WHICH IS SO MUCH TO BE DESIRED IN ANY HEARING
TO SETTLE CONTROVERSIAL
ISSUES. RULINGS AS TO THE RECEPTION OF EVIDENCE AND THE GENERAL
CONDUCT OF HEARINGS SHOULD
NOT ONLY KEEP WITHIN THE BOUNDS OF BOARD DISCRETION NECESSARILY
IMPOSED UPON THE TRIAL
EXAMINER BUT ALSO REFLECT AN ENDEAVOR TO IMPRESS THE EMPLOYER, AS
WELL AS THE EMPLOYEE, THAT
EVERY REASONABLE EFFORT HAS BEEN MADE TO ENABLE ALL PARTIES TO
PRESENT THEIR THEORY OF WHAT
HAS TRANSPIRED.
IN DECIDING WHETHER TO ENFORCE THE BOARD'S DECISION, THE COURT IN
STARK SET FORTH THE ISSUE IN THIS MANNER:
HAD THIS BEEN A COURT TRIAL INVOLVING ORDINARY WITNESSES, IT WOULD
HAVE CONSTITUTED A
CLASSIC CASE FOR SEQUESTRATION-- A PRINCIPLE WHOSE LINEAGE IS TRACED
BACK TO DANIEL'S
EFFECTIVE CROSS-EXAMINATION OF THE ELDERS WHO TRADUCED SUSANNA, SEE 6
WIGMORE, EVIDENCE
SEC. 1837 AT 347-48 (3D ED. 1940), AND WHOSE HIGH STANDING IN THE LAW
OF EVIDENCE IS ATTESTED
BY THE QUAINT PRACTICE OF REFERRING TO IT SIMPLY AS "THE RULE." THE
QUESTIONS FOR US ARE
WHETHER A COURT SHOULD REQUIRE THE NLRB TO APPLY "THE RULE" TO UNFAIR
LABOR PRACTICE
PROCEEDINGS AND, IF THAT QUESTION BE ANSWERED AFFIRMATIVELY, WHAT
SIGNIFICANCE SHOULD BE GIVEN
TO THE FACT THAT PARTICULAR WITNESSES ARE ALLEGED DISCRIMINATES.
IN CONCLUDING THAT "THE RULE" SHOULD BE APPLIED IN NLRB HEARINGS EVEN
WHERE THE WITNESSES ARE ALLEGED DISCRIMINATES, THE COURT FURTHER STATED:
EXCLUSION OF DISCRIMINATES FOR A PORTION OF THE HEARING, EVEN IF IT
WERE TO BE ASSUMED
THAT, BECAUSE OF RULE 615, PERSONS SIMILARILY SITUATED COULD NOT NOW
BE EXCLUDED IN A SIMILAR
TYPE OF ACTION IN A DISTRICT COURT-- AN ASSUMPTION WHICH MAY OR MAY
NOT BE VALID-- WOULD BE A
SMALL PRICE FOR THEM TO PAY FOR THE GENERAL COUNSEL'S PROSECUTING THE
COMPLAINT ON THEIR
BEHALF. WEIGHING THE RELATIVE IMPORTANCE OF THE PRESENCE OF A
DISCRIMINATE AT EVERY MOMENT OF
THE TRIAL TO THE ZEALOUS ADVOCACY OF HIS CAUSE AGAINST THE DANGER
THAT HIS FINANCIAL INTEREST
MAKES THE TEMPTATION TO PERJURY GREAT, AND CONSIDERING THE IMBALANCE
FROM FAILURE TO APPLY
"THE RULE" TO DISCRIMINATES WHILE IT WOULD GENERALLY BE APPLICABLE
AGAINST THE EMPLOYER, WE
THINK THAT THE ALJ SHOULD HAVE AUTHORITY TO APPLY "THE RULE" TO
DISCRIMINATE AND THAT, WHERE
SEVERAL DISCRIMINATES ARE TO BE CALLED AS WITNESSES TO THE SAME
INCIDENT, THE PRESUMPTION IN
FAVOR OF SEQUESTRATION DURING SUCH TESTIMONY COULD BE REBUTTED, IF AT
ALL, ONLY BY A
PARTICULARIZED SHOWING OF NEED FOR THE DISCRIMINATES TO HEAR EACH
OTHER'S EVIDENCE-- A SHOWING
WE FIND EXTREMELY HARD TO VISUALIZE. AS MAY BE SEEN FROM THE ABOVE,
AND FROM A READING OF THE COMPLETE TEXT, THE COURT IN STARK WAS ALSO
TROUBLED BY THE QUESTION OF WHETHER A DISCRIMINATE WHO IS A "PARTY"
UNDER THE BOARD'S REGULATIONS SHOULD THEREFORE BE EXEMPTED FROM THE
MANDATORY SEQUESTRATION "RULE" NOTWITHSTANDING THE CLEAR EXEMPTION IN
VIEW FEDERAL RULE 615.
IF THERE WERE ANY DOUBT ABOUT THE SECOND CIRCUIT'S INSISTENCE THAT
THE NATIONAL LABOR RELATIONS BOARD RECONSIDER ITS POLICY, ONE NEED ONLY
REFER TO THE FLORSHEIM SHOE STORE CO. OF PITTSBURGH V. N.L.R.B., 565
F.2D 1240 (C.A. 2 1977) WHERE IT STATED:
"NEVERTHELESS, IT IS LESS THAN SATISFACTORY THAT FIVE MONTHS AFTER
THE VERY COMPLETE
DISCUSSION IN NLRB V. STARK, 2D CIR. 1975, 525 F.2D 422, 426-430, OF
THE MATTER OF
SEQUESTERING DISCRIMINATES WHO ARE TO BE CALLED AS WITNESSES IN BOARD
PROCEEDINGS, THERE IS NO
INDICATION THAT THE MATTER OF SEQUESTRATION HAS BEEN RECONSIDERED. .
. . IT IS TRUSTED THAT
THE BOARD WILL CONSIDER THE MATTER IN THE VERY NEAR FUTURE, IF IT HAS
NOT ALREADY DONE SO." IN THE MEANTIME, THE SECOND CIRCUIT'S VIEWS AS
EXPRESSED IN STARK RECEIVED APPROVAL, IN WHOLE IT IN PART, BY OTHER
CIRCUIT COURTS. HALE MANUFACTURING COMPANY, INC., 570 F.2D 705 (C.A.
8); STURGIS NEWPORT BUSINESS FORMS, INC., 563 F.2D 1252 (C.A. 5); AND
L.S. AYRES & COMPANY, 551 F.2D 586 (C.A. 4).
EVENTUALLY, THE BOARD DID RECONSIDER AND CHANGE ITS POLICY IN UNGA
PAINTING CORPORATION, 237 NLRB 1306, AND IT PURPORTED TO FOLLOW STARK,
AT LEAST IN PART, BY THE FORMULATION OF THE FOLLOWING RULE:
WEIGHING THE IMPORTANCE OF A DISCRIMINATEE'S UNRESTRICTED PRESENCE
DURING THE BOARD HEARING
WITH THE OBJECTIVES OF THE EXCLUSION PROCESS AND OVERALL PURPOSES OF
THE ACT, WE HAVE DECIDED
TO ALTER OUR EXISTING PRACTICE AND TO EXCLUDE DISCRIMINATES FROM
HEARING TO A LIMITED
EXTENT. SPECIFICALLY, ALLEGED DISCRIMINATES SHOULD BE EXCLUDED ONLY
DURING THAT PORTION OF
THE HEARING WHEN ANOTHER OF THE GENERAL COUNSEL'S OR CHARGING PARTY'S
WITNESSES IS TESTIFYING
ABOUT EVENTS TO WHICH THE DISCRIMINATES HAVE TESTIFIED, OR WILL OR
MAY TESTIFY, EITHER IN THE
CASE-IN-CHIEF OR ON REBUTTAL, UNLESS, IN THE JUDGMENT OF THE
ADMINISTRATIVE LAW JUDGE, THERE
ARE SPECIAL CIRCUMSTANCES WARRANTING THE UNRESTRICTED PRESENCE OF
DISCRIMINATES OR TOTAL
EXCLUSION WHEN NOT TESTIFYING. THE BOARD'S DECISION WAS NOT
UNANIMOUS. MEMBER BETTY SOUTHARD MURPHY WROTE A LENGTHY DISSENTING
OPINION, WITH WHICH I AGREE, STRONGLY TAKING ISSUE WITH THE BOARD'S NEW
RULE AND REASONS THEREFOR. AS SHE CORRECTLY POINTED OUT, THE BOARD'S
NEW RULE COULD BE CUMBERSOME TO ADMINISTER AND "TURN THE HEARING ROOM
INTO A REVOLVING DOOR WITHOUT A TURNSTILE." INSTEAD, MEMBER MURPHY
PROPOSED THAT FEDERAL RULE 615 BE APPLIED WITHOUT LIMITATION. THUS,
WITH RESPECT TO DISCRIMINATES WHO ARE NOT PARTIES, RULE 615 DOES NOT
ACCORD THEM ADDITIONAL RIGHTS AND, INDEED, REQUIRES THEIR EXCLUSION
EXCEPT WHERE IT IS SHOWN THAT A PARTICULAR DISCRIMINATEE'S PRESENCE IS
ESSENTIAL TO THE PRESENTATION. UNLIKE THE BOARD MAJORITY IN UNGA
PAINTING, DISSENTING MEMBER MURPHY WOULD PERMIT DISCRIMINATES WHO ARE
PARTIES TO PARTICIPATE FULLY, SHOULD THEY SO DESIRE, IN ACCORDANCE WITH
RULE 615 AND THE BOARD'S OWN RULES AND REGULATIONS.
AS A JUDGE, I AM CONCERNED ABOUT THE PROSPECT OF PERMITTING ANY
DISCRIMINATE TO LISTEN TO ALL THE TESTIMONY AND THEN BE CALLED AS A
REBUTTAL WITNESS. IN MY OPINION, THIS APPEARS TO GIVE AN UNFAIR AND
UNNECESSARY ADVANTAGE TO THE PROSECUTOR; I.E., THE GENERAL COUNSEL.
NEVERTHELESS, I RECOGNIZE THAT WHERE THE DISCRIMINATE IS A PARTY, HE OR
SHE SHOULD HAVE THE TRADITIONAL RIGHTS ACCORDED TO PARTIES. MEMBER
MURPHY'S SOLUTION TO THIS PROBLEM IS AS FOLLOWS:
WHATEVER REBUTTAL TESTIMONY THEY GIVE MAY BE VIEWED IN LIGHT OF THE
FACT THAT THEY HEARD
THE TESTIMONY OF OTHER WITNESSES-- AND PROPERLY SO. IN THE EVENT
THERE IS MORE THAN ONE
CHARGING PARTY, PERHAPS ONE OR MORE OF THEM CAN BE PERSUADED TO LEAVE
DURING THE TESTIMONY OF
THE OTHERS-- OR, ALTERNATIVELY, THEIR TESTIMONY CAN BE EVALUATED BY
THE ADMINISTRATION LAW
JUDGE IN LIGHT OF THE FACT THAT THEY HAD ALREADY HEARD RELATED
TESTIMONY. THIS IS NOT A REAL
PROBLEM WHEN BALANCED AGAINST DUE PROCESS REQUIREMENTS; IF THEY ARE
NOT ALLOWED TO BE PRESENT
AT ALL TIMES, THEY BASICALLY WILL BE WITHOUT RIGHTS UNDER SECTION
102.38, OR AT LEAST THEY
WILL NOT BE ABLE TO EXERCISE THEIR RIGHTS WITHOUT OBTAINING COUNSEL
TO REPRESENT THEM. THUS,
THEY WILL NOT, AS A PRACTICAL MATTER, BE ABLE TO CALL AND EXAMINE
THEIR OWN WITNESSES OR TO
CROSS-EXAMINE WITNESSES CALLED BY GENERAL COUNSEL OR ANOTHER CHARGING
PARTY. AS A PRACTICAL MATTER THE PROBLEM SHOULD NOT COME UP TOO OFTEN
SINCE MOST CHARGES ARE FILED BY UNIONS ON BEHALF OF EMPLOYEES.
I TURN NOW TO THE QUESTION OF WHAT POLICY, IF ANY, SHOULD BE ADOPTED
BY THE AUTHORITY. UNLIKE CASES ARISING IN THE PRIVATE SECTOR, IT MAY BE
THAT THIS WILL NOT BE A CONSTANTLY RECURRING PROBLEM IN THE FEDERAL
SECTOR. FURTHER, I WOULD NOTE THAT WHILE THE CIRCUMSTANCES OF THIS CASE
DO NOT NECESSARILY REQUIRE FORMULATION OF A POLICY AT THIS TIME, I
BELIEVE THAT IT WOULD BE HELPFUL TO HAVE A UNIFORM POLICY IN THE
INTERESTS OF JUSTICE AND AN EFFECTIVE ADMINISTRATION OF THE STATUTE.
IT IS WELL ESTABLISHED UNDER THE EXECUTIVE ORDER, AND EQUALLY
APPLICABLE UNDER THE STATUTE, THAT THE FEDERAL LABOR RELATIONS AUTHORITY
IS NOT BOUND BY POLICIES AND DECISIONAL PRECEDENTS OF THE NATIONAL LABOR
RELATIONS BOARD, ALTHOUGH SUCH DECISIONS MAY OFFER SOME GUIDANCE AND
ASSISTANCE. RATHER, THE AUTHORITY RESERVES THE RIGHT AS AN INDEPENDENT
AGENCY TO FORMULATE ITS OWN POLICIES. IN SO DOING, THE AUTHORITY WOULD
CERTAINLY EXAMINE, AND CONSIDER HOW WELL THE POLICIES OF A SISTER AGENCY
LIKE THE NLRB HAVE FARED IN THE UNITED STATES COURT OF APPEALS BECAUSE
THESE SAME CIRCUIT COURTS HAVE JURISDICTION TO REVIEW AUTHORITY
DECISIONS UNDER SECTION 7123 OF THE STATUTE.
ALSO OF CONSIDERATION HERE IS THE FACT THAT THE AUTHORITY, UNLIKE THE
BOARD, IS NOT REQUIRED BY STATUTE TO FOLLOW THE FEDERAL RULES OF
EVIDENCE "SO FAR AS PRACTICABLE." INDEED, SECTION 2423.17 OF THE
AUTHORITY'S REGULATIONS STATES THAT THE "PARTIES SHALL NOT BE BOUND BY
THE RULES OF EVIDENCE, WHETHER STATUTORY, COMMON LAW, OR ADOPTED BY
COURT." ACCORDINGLY, THE AUTHORITY HAS SUBSTANTIAL LATITUDE IN DECIDING
HOW THIS QUESTION SHOULD BE RESOLVED.
IN MY OPINION, SUBSTANTIAL WEIGHT SHOULD BE PLACED ON THE VIEWS OF
THE FEDERAL COURTS AND THE CHOICE SHOULD BE MADE BETWEEN THE OLD RULE--
WHERE THE DECISION TO EXCLUDE WITNESSES IS COMPLETELY DISCRETIONARY WITH
THE JUDGE; OR THE NEW RULE (FEDERAL RULE 615)-- WHERE SEQUESTRATION OF
WITNESSES (EXCEPT PARTIES) IS A MATTER OF RIGHT. THIS LATTER RULE IS
SET FORTH IN THE FEDERAL RULES OF EVIDENCE AS FOLLOWS:
RULE 615. EXCLUSION OF WITNESSES
AT THE REQUEST OF A PARTY THE COURT SHALL ORDER WITNESSES EXCLUDED SO
THAT THEY CANNOT HEAR
THE TESTIMONY OF OTHER WITNESSES, AND IT MAY MAKE THE ORDER OF ITS
OWN MOTION. THIS RULES
DOES NOT AUTHORIZE EXCLUSION OF (1) A PARTY WHO IS A NATURAL PERSON,
OR (2) AN OFFICER OR
EMPLOYEE OF A PARTY WHICH IS NOT A NATURAL PERSON DESIGNATED AS ITS
REPRESENTATIVE BY ITS
ATTORNEY, OR (3) A PERSON WHOSE PRESENCE IS SHOWN BY A PARTY TO BE
ESSENTIAL TO THE
PRESENTATION OF HIS CAUSE. FOR THE REASONS EXPRESSED IN THE
DISSENTING OPINION IN UNGA PAINTING, SUPRA, I WOULD RECOMMEND FOLLOWING
FEDERAL RULE 615.
AT THE BEGINNING OF THIS DISCUSSION I POINTED OUT THAT THE GENERAL
COUNSEL OBJECTED TO MY RULING EXCLUDING CARR AND REQUESTED THAT I RULE
ON THIS OBJECTION IN MY DECISION IN ORDER "TO PUT THIS QUESTION SQUARELY
BEFORE THE AUTHORITY FOR DECISION." BASED UPON MY REVIEW OF THE MATTER
AND MY ANALYSIS OF THE APPLICABLE PRECEDENT, I CONCLUDE THAT I HAD THE
DISCRETION TO MAKE THE RULING, THAT I DID NOT ABUSE MY DISCRETION, AND
THAT THE GENERAL COUNSEL HAS FAILED TO SHOW ANY PREJUDICE TO CARR AS THE
RESULT OF MY DECISION. ACCORDINGLY, I ADHERE TO THAT RULING.
DISCUSSION AND CONCLUSIONS OF LAW
SECTION 7102 OF THE STATUTE GUARANTEES TO EACH EMPLOYEE OF THE
FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN
FROM SUCH ACTIVITY. AGENCY MANAGEMENT'S ABRIDGEMENT OF THESE RIGHTS BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROTECTION OR OTHER
CONDITIONS OR EMPLOYMENT IS VIOLATIVE OF SECTION 7116(A)(2).
TO FIND A SECTION 7116(A)(2) VIOLATION, THE EVIDENCE MUST SHOW THAT
AGENCY MANAGEMENT HAS DISCRIMINATORILY AFFECTED THE EMPLOYEE'S TERMS AND
CONDITIONS OF EMPLOYMENT BASED UPON UNION CONSIDERATIONS. /10/ THUS, IN
THE INSTANT CASE THERE WILL BE A VIOLATION IF IT IS SHOWN THAT CARR'S
ACTIVITY AS A UNION STEWARD WAS A REASON FOR HIS BEING DISCHARGED AND
THAT RESPONDENT'S ASSERTED REASONS OF ALLEGED LEAVE ABUSE WAS A MERE
PRETEXT FOR THE DISCHARGE. BUT, IT ALSO WILL BE FOUND TO BE A VIOLATION
IF THIS TURNS OUT TO BE A "MIXED MOTIVE" SITUATION; I.E. WHERE A
LEGITIMATE BASIS FOR MANAGEMENT ACTION EXISTS, BUT WHERE UNION
CONSIDERATIONS ALSO ARE SHOWN TO HAVE PLAYED A PART. /11/
IN MY OPINION RESPONDENT HAS NOT SATISFACTORILY DEMONSTRATED THAT THE
DISCHARGE OF CARR WAS "IN THE WORKS" PRIOR TO HIS ACTIVITY AS A UNION
STEWARD AND THAT HE WOULD HAVE BEEN DISCHARGED ON JUNE 16 IN ANY EVENT
BECAUSE OF HIS ALLEGEDLY POOR LEAVE RECORD. /12/ THEREFORE, I DO NOT
REGARD THIS AS A TYPICAL "MIXED MOTIVE" CASE. IT IS MY OPINION THAT
CARR'S ACTIVITIES AS A UNION STEWARD, WHICH REQUIRED HIM TO BE ABSENT
FROM HIS WORK SITE TO INVESTIGATE GRIEVANCES AND OTHER MATTERS,
TRIGGERED RESPONDENT'S DECISION TO DISCHARGE HIM AND THAT HIS ALLEGEDLY
POOR LEAVE RECORD WAS A PRETEXT TO COVER UP THE REAL REASON FOR THE
DISCHARGE.
IN REACHING THESE CONCLUSIONS, I NOTE THAT FROM THE DATE OF CARR'S
HIRING ON SEPTEMBER 26, 1979 UNTIL HIS SECOND WRITTEN EVALUATION ON
APRIL 15, CARR'S PUNCTUALITY AND ATTENDANCE WAS RATED AS "REGULAR" AND
THERE IS NO EVIDENCE OF ANY WRITTEN WARNINGS ADMONISHING HIM THAT HE HAD
A PROBLEM WITH LEAVE USAGE THAT NEEDED TO BE CORRECTED. /13/ FROM APRIL
15 TO MAY 28, CARR'S ABSENCES DURING THIS PERIOD ON MILITARY, ANNUAL AND
SICK LEAVE WERE ALL APPROVED BY RESPONDENT'S SUPERVISOR. IT WAS ONLY
AFTER CARR BEGAN TO COMMENCE ACTIVITIES AS A UNION STEWARD THAT LEAVE
USAGE BECAME A "PROBLEM." THE PERSON WHO WAS MOST CONCERNED ABOUT CARR'S
ACTIVITIES WAS GENERAL FOREMAN WATKINS, NOT FITE. WHEN WATKINS FOUND
OUT THAT FITE HAS APPROVED 5 DAYS ANNUAL LEAVE IN ADDITION TO TWO WEEKS
MILITARY LEAVE, HE WAS UPSET AND CHEWED FITE OUT. ACCORDING TO WATKINS
HE HAD NEVER HEARD OF MILITARY LEAVE BEING ANYTHING BUT TWO
"CONSECUTIVE" WEEKS. WATKINS WAS CONCERNED THAT CARR WOULD NOT HAVE ANY
LEAVE REMAINING FOR THE USUAL CHRISTMAS SHUTDOWN. AFTER CARR BECAME A
STEWARD, WATKINS ADMITS TELLING FITE HE THOUGHT THAT CARR WAS USING AN
"EXCESSIVE AMOUNT" OF TIME FOR UNION BUSINESS (TR. 207, 238). WATKINS'
STATEMENT TO FITE WAS NOT MADE IN THE PRESENCE OF ANY EMPLOYEES, BUT
WATKINS'S FEELINGS WERE SOON KNOWN TO EMPLOYEES. THUS, ON JUNE 11,
WATKINS HAD OCCASION TO TELL CARR (IN PERSON) AND TO DELLA YOST (ON THE
TELEPHONE) THAT CARR WAS TAKING OFF TOO MUCH TIME FOR UNION BUSINESS.
IN MY OPINION SUCH STATEMENTS TEND TO DISCOURAGE EMPLOYEES IN THEIR
RIGHT TO ENGAGE IN PROTECTED UNION ACTIVITY AND CONSTITUTE A VIOLATION
OF SECTION 7116(A)(1). ALSO, ON JUNE 11, WATKINS RESTRICTED CARR TO
ONLY ONE HOUR TO HANDLE THE ASSIGNED GRIEVANCE. /14/ SINCE THERE WAS NO
CONTRACT PROVISION LIMITING THE TIME TO BE SPENT ON GRIEVANCES BY A
STEWARD, THIS RESTRICTION INTERFERED WITH THE INVESTIGATION OF THE
GRIEVANCE AND DISCOURAGED EMPLOYEES IN THEIR RIGHT TO ENGAGE IN ACTIVITY
ON BEHALF OF THE UNION. IN MY VIEW, THIS IS A SEPARATE AND ADDITIONAL
VIOLATION OF SECTION 7116(A)(1). /15/
LATER THAT SAME DAY, JUNE 11, JOHN FITE TOLD CARR HE WAS RECOMMENDING
HIS DISCHARGE BECAUSE HE WAS, AMONG OTHER THINGS, "TAKING TOO MUCH TIME
OFF HANDLING UNION BUSINESS." THIS ALSO CONSTITUTES A SEPARATE VIOLATION
OF SECTION 7116(A)(1) AS IT CLEARLY IS THE TYPE OF STATEMENT WHICH
INTERFERES WITH, RESTRAINS AND COERCES AN EMPLOYEE IN THE EXERCISE OF A
STATUTORY RIGHT, THE RIGHT TO CARRY OUT THE DUTIES OF A STEWARD; I.E.
INVESTIGATING GRIEVANCES.
WITH THE FOREGOING VIOLATIONS OF SECTION 7116(A)(1) CLEARLY SHOWING
ANTI-UNION ANIMUS BY RESPONDENT'S AGENTS, FITE AND WATKINS, AND NOTING
THE TIMING OF CARR'S DISCHARGE IN RELATION TO HIS COMMENCEMENT OF
STEWARD DUTIES, /16/ THE CONCLUSION IS INESCAPABLE THAT RESPONDENT
DISCHARGED CARR BECAUSE OF HIS UNION ACTIVITIES. BY SO DOING,
RESPONDENT HAS DISCRIMINATED AGAINST CARR IN VIOLATION OF SECTION
7116(A)(2), AND RESTRAINED AND COERCED HIM IN VIOLATION OF SECTION
7116(A)(1). THE OBVIOUS CONSEQUENCE OF CARR'S DISCHARGE IS TO DISCOURAGE
EMPLOYEES FROM JOINING AND ASSISTING A LABOR ORGANIZATION. THIS IS
INHERENTLY DESTRUCTIVE OF RIGHTS ASSURED BY THE STATUTE.
HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED SECTION
7116(A)(1) AND (2) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE
THE FOLLOWING:
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, U.S. FED. REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) TERMINATING, AND OTHERWISE DISCRIMINATING AGAINST, EMPLOYEES
BECAUSE OF THEIR
ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 1482.
(B) MAKING STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO MUCH
TIME ON THEIR PROTECTED
UNION ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482.
(C) INTERFERING WITH THE INVESTIGATION OF GRIEVANCES BY
REPRESENTATIVES OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
(D) MAKING STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
RECOMMENDED BECAUSE OF THEIR
PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
1482.
(E) IN ANY LINE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE
IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) UPON REQUEST, OFFER TO OSCAR CARR IMMEDIATE AND FULL
REINSTATEMENT TO HIS FORMER
POSITION OR, IF THAT POSITION NO LONGER EXISTS, TO A SUBSTANTIALLY
EQUIVALENT POSITION,
WITHOUT PREJUDICE TO HIS SENIORITY AND OTHER RIGHTS AND PRIVILEGES,
AND MAKE HIM WHOLE FOR ANY
LOSS OF BACK WAGES OR OTHER BENEFITS SUFFERED BECAUSE OF THE
DISCRIMINATION AGAINST HIM.
(B) POST AT ITS MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA,
COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY
THE REGIONAL DIRECTOR FOR
REGION 8, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL
BE POSTED BY IT
IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES
ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR FOR REGION 8, IN WRITING, WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 10, 1981
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 TERMINATE, OR OTHERWISE DISCRIMINATE AGAINST, OUR
EMPLOYEES BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES LOCAL 1482.
WE WILL OFFER TO OSCAR CARR IMMEDIATE AND FULL REINSTATEMENT TO HIS
FORMER POSITION OR, IF THAT POSITION NO LONGER EXISTS, TO A
SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY
AND OTHER RIGHTS AND PRIVILEGES, AND WE WILL MAKE HIM WHOLE FOR ANY LOSS
OF BACK WAGES OR OTHER BENEFITS SUFFERED BECAUSE OF THE DISCRIMINATION
AGAINST HIM.
WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO
MUCH TIME ON THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1482.
WE WILL NOT INTERFERE WITH THE INVESTIGATION OF GRIEVANCES BY
REPRESENTATIVES OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL
1482.
WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
RECOMMENDED BECAUSE OF THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1482.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
REGION 8, 350 SOUTH FIGUEROA STREET 10TH FLOOR, LOS ANGELES, CA 90071;
TELEPHONE: (213) 688-3805; FTS 798-3805.
--------------- FOOTNOTES$ ---------------
/1/ NOTING THE GENERAL COUNSEL'S OBJECTIONS MADE BOTH AT THE HEARING
AND IN ITS POST-HEARING BRIEF, THE ADMINISTRATIVE LAW JUDGE CONCLUDED IN
HIS RECOMMENDED DECISION AND ORDER THAT HE PROPERLY RULED AT THE HEARING
TO REQUESTER OSCAR CARR, THE DISCRIMINATE, DURING THE TESTIMONY OF OTHER
WITNESSES. IN VIEW OF THE OUTCOME HEREIN, AND THE FACT THAT NO
EXCEPTIONS WERE FILED TO THE JUDGE'S DECISION, THE AUTHORITY FINDS IT
UNNECESSARY TO RULE ON THIS ISSUE.
/2/ PARAGRAPH 2(A) OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER HAS BEEN CHANGED TO REFLECT THE REQUIREMENTS OF THE
BACKPAY ACT, 5 U.S.C. 5596(B)(1)(A)(I), WHICH REQUIRES THAT BACKPAY BE
OFFSET BY "AMOUNTS EARNED BY THE EMPLOYEE THROUGH OTHER EMPLOYMENT
DURING THAT PERIOD . . ."
/3/ AS NOTED BY RESPONDENT IN ITS WELL-PREPARED BRIEF, THIS CASE
ESSENTIALLY INVOLVES FACTUAL QUESTIONS AND THIS IN TURN RESTS ON MAKING
CREDIBILITY DETERMINATIONS. I WAS NOT IMPRESSED WITH RESPONDENT'S
WITNESSES FITE AND WATKINS AND UNABLE TO CREDIT THEIR TESTIMONY DENYING
THE 7116(A)(1) STATEMENTS ATTRIBUTED TO THEM. CARR WAS A MUCH MORE
CREDIBLE AND PERSUASIVE WITNESS WHOSE TESTIMONY WAS BELIEVABLE,
ESPECIALLY WHERE CORROBORATED BY YOST AND BROWN, BOTH OF WHOM WERE
HIGHLY CONVINCING AND CREDIBLE WITNESSES. ACCORDINGLY, I CREDIT CARR'S
TESTIMONY.
/4/ THE TRANSCRIPT WILL BE REFERRED TO HEREIN AS "TR." FOLLOWED BY
REFERENCE TO THE APPROPRIATE PAGE AND LINE NUMBER. GENERAL COUNSEL'S
EXHIBITS WILL BE REFERRED TO HEREIN AS "G.C. EXH. NO." WITH THE
APPROPRIATE EXHIBIT NUMBER THEREAFTER.
/5/ FITE TESTIFIED THAT HE WENT TO THE FUNERAL AND RETURNED TO WORK
AND THAT CARR WAS NOT A PALLBEARER. FITE SAID HE NEVER SPOKE TO CARR
ABOUT THAT. FITE DID NOT TESTIFY THAT CARR WAS NOT AT THE FUNERAL.
/6/ UNDER ARTICLE 22, SECTION 3 OF THE PARTIES NEGOTIATED AGREEMENT
(G.C. EXH. NO. 8), A STEWARD MUST OBTAIN WRITTEN PERMISSION-- THE GREEN
SLIP-- FROM HIS IMMEDIATE SUPERVISOR BEFORE LEAVING HIS ASSIGNED WORK
AREA OR BUILDING TO RESPOND TO THE REQUEST OF AN EMPLOYEE TO INVESTIGATE
A GRIEVANCE.
/7/ RESPONDENT CORRECTLY NOTES THAT FITE'S REFERENCE TO UNION
BUSINESS WAS NOT CONTAINED IN CARR'S JULY 12 SUMMARY OF THE EVENTS IN
QUESTION (RESP. EXH. NO. 1). HOWEVER, CARR'S TESTIMONY IS CORROBORATED
BY YOST WHO TESTIFIED THAT IMMEDIATELY FOLLOWING CARR'S CONVERSATION
WITH FITE, CARR CALLED YOST AND, IN A DISTRAUGHT MANNER, RELATED TO HER
"THAT HE WAS BEING TERMINATED FOR SPENDING TOO MUCH TIME ON UNION
BUSINESS" (TR. 111). CARR'S TESTIMONY, AS CORROBORATED BY YOST IS
CREDITED.
/8/ BROWN, WHOSE TESTIMONY I CREDIT, ASKED FITE ABOUT PENDING ACTIONS
BECAUSE OF RUMORS BROWN HAD HEARD AND BECAUSE OF FITE'S STATEMENT DURING
THE MEETING THAT HE FELT PRESSURED AND WAS TIRED OF TAKING THE POSITION
HE HAD TO TAKE AND THAT SOMETHING HAD TO BE DONE.
/9/ I AM ABSOLUTELY UNIMPRESSED BY RESPONDENT'S ATTEMPT TO MERELY
RECITE ALL LEAVE TAKEN BY AN INDIVIDUAL EMPLOYEE AND THEN LABEL IT
"EXCESSIVE," WITHOUT REGARD TO THE FACT THAT A LARGE PART OF THE LEAVE
WAS APPROVED IN ADVANCE AND THE BALANCE WAS APPROVED AFTER CARR'S
REASONS WERE FOUND ACCEPTABLE. AND I CERTAINLY WOULD DISREGARD ANY
TARDINESS OR UNSCHEDULED LEAVE PRIOR TO THE DATE OF HIS WRITTEN
EVALUATION ON APRIL 15. "REGULAR", TO ME, MEANS THAT HIS USE OF LEAVE
WAS NO WORSE THAN ANY OTHER EMPLOYEE. AND, I FURTHER NOTE FITE'S
TESTIMONY THAT ALL EMPLOYEES USE A LOT OF LEAVE (TR. 195) AND THAT IN
HIS 13 YEARS AS A SUPERVISOR HE HAD NEVER TAKEN ADVERSE ACTION AGAINST
AN EMPLOYEE FOR LEAVE ABUSE. NOR COULD WATKINS CITE ANY SPECIFIC
EXAMPLES. THIS PARTICULAR POINT IS PERSUASIVELY DISCUSSED IN FN. 7 OF
THE GENERAL COUNSEL'S BRIEF.
/10/ DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, 2
FLRA NO. 118(1980); U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
MILWAUKEE AREA OFFICE, 8 A/SLMR 948, 969(1977).
/11/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER, 2 FLRA NO. 12(1979);
DEPARTMENT OF THE ARMY, UNITED STATES ARMY INFANTRY CENTER, 5 A/SLMR
325; ALSO SEE VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE
CENTER, WHITE RIVER JUNCTION, VERMONT, CASE NO. 1-CA-147, ALJ DECISION
(SEPT. 19, 1980) FOR A DISCUSSION OF THE NLRB'S RECENT "REFINEMENT" OF
ITS RATIONALE IN MIXED MOTIVE CASES.
/12/ RESPONDENT'S ARGUMENT TO THE CONTRARY IS PERSUASIVELY ANSWERED
IN THE GENERAL COUNSEL'S BRIEF (AT PP 16-24) AND, IN VIEW OF MY DECISION
HEREIN, DOES NOT REQUIRE ELABORATION HERE.
/13/ THE APRIL 15 WRITTEN EVALUATION IS SOMETHING IN THE NATURE OF AN
ADMISSION AGAINST INTEREST BECAUSE, QUITE FRANKLY, IT WEAKENS
RESPONDENT'S DEFENSE. ORAL TESTIMONY BY FITE (TR. 135) ATTEMPTING TO
BACK OFF OR CONTRADICT HIS OWN WRITTEN EVALUATION IS PRETTY MUCH
WORTHLESS, IN MY OPINION, UNLESS ADMITTED BY CARR. ACCORDINGLY, EVEN
WITHOUT CARR'S CREDITED TESTIMONY (TR. 44) THAT FITE SAID HIS ATTENDANCE
WAS "SATISFACTORY," I WOULD HAVE TO REJECT FITE'S TESTIMONY AND INSTEAD
RELY ON HIS WRITTEN EVALUATION WHICH IS DEVOID OF ANY CRITICISM
CONCERNING PUNCTUALITY AND ATTENDANCE, AND WHICH FINDS CARR'S
DEPENDABILITY TO HAVE IMPROVED UPWARDS TO "ABOVE AVERAGE."
/14/ WATKINS' BELATED EXPLANATION FOR HIS CONDUCT IS NOT BELIEVABLE.
HE HAD PREVIOUSLY APPROVED CARR'S RELEASE AND HE WAS AWARE OF THE
CONTRACTUAL REQUIREMENTS. IT IS MUCH MORE LIKELY THAT HE WAS IRRITATED
BY CARR'S REQUEST FOR OFFICIAL LEAVE AND JUST DECIDED TO BE DOWNRIGHT
ORNERY ABOUT IT.
/15/ IT SEEMS TO ME THAT WHEN A UNION STEWARD IS SIMPLY TRYING TO DO
HIS JOB AND A SUPERVISOR GIVES HIM A "HARD TIME" AS IN THIS CASE,
RESPONDENT'S "CONDUCT" IS COERCIVE IN NATURE AND CONSTITUTES
INTERFERENCE WITH PROTECTED ACTIVITY. U.S. DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE, 4 FLRA NO.87(1980).
/16/ BETWEEN APRIL 15, THE DATE OF HIS WRITTEN EVALUATION, AND JUNE
11 WHEN FITE TOLD CARR HE WAS RECOMMENDING HIS DISCHARGE, CARR'S
REQUESTS FOR LEAVE (MILITARY, SICK AND ANNUAL) WERE ALL APPROVED BY
RESPONDENT. ON MAY 28, 29 AND JUNE 5, 6, 9, 10 AND 11, CARR REQUESTED
AND RECEIVED OFFICIAL TIME TO PERFORM DUTIES OF A STEWARD. TO FITE AND
WATKINS, CARR'S FREQUENT USE OF LEAVE FOR UNION BUSINESS APPEARED TO BE
EXCESSIVE. INDEED, IT WAS THE STRAW THAT BROKE THE CAMEL'S BACK AND
PRECIPITATED CARR'S DISCHARGE.