[ v05 p788 ]
05:0788(105)CA
The decision of the Authority follows:
5 FLRA No. 105
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
Respondent
and
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL NO. 1
Charging Party
and
TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case Nos. 3-CA-63
3-CA-20
3-CA-21
3-CA-456
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491,
AS AMENDED AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7101-7135), AS ALLEGED IN THE COMPLAINTS, AND RECOMMENDING THAT
IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS SET
FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER. THE ADMINISTRATIVE LAW JUDGE FOUND FURTHER THAT THE
RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR
PRACTICES UNDER THE STATUTE, AND RECOMMENDED THE DISMISSAL OF THOSE
PORTIONS OF THE COMPLAINTS. THEREAFTER, THE GENERAL COUNSEL FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER IN CASE NOS. 3-CA-63 AND 3-CA-456. NO EXCEPTIONS WERE FILED BY
ANY PARTY TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER IN CASE NOS. 3-CA-20 AND 3-CA-21.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTION 2423.1 AND 2423.29 OF THE AUTHORITY'S
RULES AND REGULATIONS AND SECTIONS 7135(B) AND 7118 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 HEREIN,
INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS
AS MODIFIED BELOW.
IN CASE NOS. 3-CA-20 AND 3-CA-21, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) OF EXECUTIVE ORDER 11491,
AS AMENDED, ON THE BASIS OF CERTAIN THREATS MADE TO EMPLOYEES BY ONE OF
RESPONDENT'S SUPERVISORS. THE ADMINISTRATIVE LAW JUDGE FURTHER FOUND
THAT THE DENIAL OF A WITHIN-GRADE INCREASE TO AN EMPLOYEE FOR ENGAGING
IN PROTECTED UNION ACTIVITIES AND GIVING TESTIMONY TO AGENTS OF THE
AUTHORITY CONSTITUTED A VIOLATION OF SECTION 19(A)(1), (2) AND (4) OF
THE ORDER. NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS BY ANY PARTY
TO THE FOREGOING FINDINGS, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS IN CASE NOS. 3-CA-20
AND 3-CA-21. /1/
IN CASE NO. 3-CA-456, THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER
THINGS, THAT THE RESPONDENT DISPARAGED AND DEMEANED THE UNION IN A
MANNER VIOLATIVE OF SECTION 7116(A)(1) OF THE STATUTE WHEN A SUPERVISOR
VERBALLY REPRIMANDED A UNION STEWARD, IN THE PRESENCE OF ANOTHER
EMPLOYEE, FOR ENGAGING IN PROTECTED ACTIVITY, AND INSTRUCTED THE UNION
STEWARD TO TELL THE EMPLOYEE THAT SHE COULD NOT TALK WITH THE UNION
STEWARD WITHOUT THE SUPERVISOR'S PERMISSION. THE AUTHORITY CONCLUDES,
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE'S FINDING, NOTING
PARTICULARLY THE ABSENCE OF ANY EXCEPTIONS THERETO, THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) OF THE STATUTE BY VIRTUE OF THE FOREGOING
CONDUCT.
THE AUTHORITY FURTHER ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDING
IN CASE NO. 3-CA-456 THAT THE EVIDENCE FAILED TO ESTABLISH A UNILATERAL
CHANGE BY RESPONDENT IN ANY PREEXISTING POLICY FOR ASSIGNING OVERTIME IN
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. IN THIS REGARD,
AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE DISPUTE HEREIN DID NOT
INVOLVE A BREACH OF THE PARTIES' AGREEMENT BUT RATHER CONCERNS THE
MEANING AND INTERPRETATION OF A PROVISION CONTAINED IN THE PARTIES'
AGREEMENT AND THUS IS A MATTER APPROPRIATE FOR RESOLUTION UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE. IN SO CONCLUDING, THE AUTHORITY FINDS
IT UNNECESSARY TO REACH AND SPECIFICALLY DOES NOT ADOPT THE
ADMINISTRATIVE LAW JUDGE'S COMMENTS IN FOOTNOTE 9 OF HIS RECOMMENDED
DECISION AND ORDER CONCERNING THE APPLICABILITY OF SECTION 7116(D) OF
THE STATUTE.
WITH REGARD TO THE FURTHER ALLEGATIONS IN CASE NO. 3-CA-456
CONCERNING THE RESPONDENT'S REFUSAL TO COMPLY WITH THE GENERAL COUNSEL'S
DEMAND (AFTER THE HEARING HAD BEEN ADJOURNED FOR THE DAY) THAT TWO
EMPLOYEES WHO HAD BEEN UNDER SUBPOENA TO TESTIFY BE CONTINUED ON
OFFICIAL TIME IN ORDER TO ASSIST THE GENERAL COUNSEL IN PREPARING FOR
THE FOLLOWING DAY'S HEARING, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
RESPONDENT'S CONDUCT DID NOT VIOLATE SECTION 7116(A)(1) OF THE STATUTE
AS ALLEGED. IN THIS REGARD, HE FOUND THERE WAS NO EVIDENCE IN THE
RECORD TO DEMONSTRATE THAT THE EMPLOYEE'S PARTICIPATION IN THE
PREPARATION OF THE GENERAL COUNSEL'S CASE WAS NECESSARY, BUT ONLY THAT
COUNSEL FOR THE GENERAL COUNSEL RELIED UPON THE FACT THAT THE EMPLOYEES
WERE UNDER SUBPOENA IN REQUESTING THEIR CONTINUED AVAILABILITY ON
OFFICIAL TIME. ACCORDINGLY, HE RECOMMENDED THAT THIS ALLEGATION OF THE
COMPLAINT IN CASE NO. 3-CA-456 BE DISMISSED. IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THE AUTHORITY CONCLUDES THAT THE RESPONDENT
DID NOT VIOLATE SECTION 7116(A)(1) OF THE STATUTE IN THE CIRCUMSTANCES
OF THIS CASE. IN SO CONCLUDING, THE AUTHORITY NOTES, AS DID THE
ADMINISTRATIVE LAW JUDGE, THAT WHILE SECTION 2429.13 OF THE AUTHORITY'S
INTERIM RULES AND REGULATIONS /2/ PROVIDES THAT "THE PARTICIPATION OF
ANY EMPLOYEE IN ANY PHASE OF ANY PROCEEDING BEFORE THE AUTHORITY"
ENCOMPASSES PREPARATION FOR A FORMAL HEARING SUCH AS THE UNFAIR LABOR
PRACTICE PROCEEDING HEREIN, IT FURTHER PROVIDES THAT EMPLOYEES SHALL BE
GRANTED OFFICIAL TIME FOR SUCH PARTICIPATION "(I)F . . . DEEMED
NECESSARY BY THE AUTHORITY . . . ." IN THE INSTANT CASE, AS PREVIOUSLY
STATED, THE ADMINISTRATIVE LAW JUDGE FOUND THAT COUNSEL FOR THE GENERAL
COUNSEL HAD FAILED TO PROVIDE ANY EVIDENCE ON THE RECORD TO DEMONSTRATE
THAT THE EMPLOYEES IN QUESTION WERE NECESSARY TO THE PREPARATION OF THE
GENERAL COUNSEL'S CASE. UNDER THESE CIRCUMSTANCES, THE AUTHORITY
CONCLUDES, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE
FOREGOING ALLEGATION OF THE COMPLAINT IN CASE NO. 3-CA-456 MUST BE
DISMISSED. IN THIS REGARD, THE AUTHORITY CONCLUDES THAT ONCE AN UNFAIR
LABOR PRACTICE HEARING HAS CONVENED AND BEFORE THE CLOSE OF THE HEARING,
AS HERE, THE ADMINISTRATIVE LAW JUDGE HAS THE POWER UNDER THE
AUTHORITY'S RULES AND REGULATIONS TO DETERMINE, SUBJECT TO REVIEW BY THE
AUTHORITY, WHETHER THE PARTICIPATION OF ANY EMPLOYEE IN ANY PHASE OF ANY
PROCEEDING BEFORE THE AUTHORITY IS NECESSARY, AND THEREFORE THE
ADMINISTRATIVE LAW JUDGE CLEARLY WAS ACTING WITHIN THE SCOPE OF HIS
AUTHORITY IN FINDING NO EVIDENCE HAD BEEN PRESENTED THAT THE EMPLOYEES
IN QUESTION WERE NECESSARY TO THE PREPARATION OF THE GENERAL COUNSEL'S
CASE. /3/
FINALLY, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION IN CASE NO. 3-CA-63 THAT THE RESPONDENT DID NOT VIOLATE
SECTION 7116(A)(1) OF THE STATUTE IN THE CIRCUMSTANCES OF THIS CASE AS A
RESULT OF THE SHIPYARD COMMANDER'S NEWSPAPER ARTICLE WHICH ENCOURAGED
ALL EMPLOYEES TO CONDUCT THEMSELVES SO AS TO BRING CREDIT ON THE
SHIPYARD.
ORDER
PURSUANT TO SECTIONS 2423.1 AND 2423.29 OF THE FEDERAL LABOR
RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTIONS 7118 AND 7135
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY
HEREBY ORDERS THAT THE NORFOLK NAVAL SHIPYARD, NORFOLK, VIRGINIA SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO TAKE STRINGENT ACTION AGAINST EMPLOYEES IF LOCAL
1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS DID
NOT CEASE ITS REPRESENTATIONAL ACTIVITIES.
(B) INSTRUCTING EMPLOYEES THAT THEY ARE NOT TO COMMUNICATE WITH LOCAL
1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
WITHOUT PERMISSION FROM THEIR SUPERVISOR.
(C) THREATENING TO MAKE WORKING CONDITIONS MORE BURDENSOME OR ONEROUS
BECAUSE EMPLOYEES HAVE GIVEN TESTIMONY IN A PRE-COMPLAINT INVESTIGATION.
(D) THREATENING AN OFFICER OF LOCAL 1, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS, THAT HER ELIGIBILITY FOR PROMOTION
MADE IT A GOOD TIME TO INSTRUCT HER ON HOW PROPERLY TO CARRY OUT HER
REPRESENTATIONAL ACTIVITIES.
(E) THREATENING TO WITHHOLD, AND WITHHOLDING, A WITHIN-GRADE
PROMOTION FROM AN OFFICER OF LOCAL 1, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS, BECAUSE OF TIME SPENT ON
REPRESENTATIONAL FUNCTIONS OR BECAUSE HE GAVE A STATEMENT TO AN AGENT OF
THE FEDERAL LABOR RELATIONS AUTHORITY.
(F) SPEAKING TO AN OFFICER OF LOCAL 1, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL ENGINEERS, IN THE PRESENCE OF EMPLOYEES, IN
AN ABUSIVE, DISPARAGING AND DEMEANING MANNER, AND INSTRUCTING HER THAT
SHE WAS NOT TO SPEAK TO EMPLOYEES WITHOUT HER SUPERVISOR'S PERMISSION.
(G) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOINT AND ASSIST LOCAL 1,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, OR ANY
OTHER LABOR ORGANIZATION, OR TO VINDICATE SUCH RIGHTS IN ANY PROCEEDINGS
BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT THE NORFOLK NAVAL SHIPYARD 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
SHIPYARD COMMANDER 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 SHIPYARD COMMANDER SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
OTHER MATERIAL.
(B) NOTIFY THE REGIONAL DIRECTOR OF REGION III, 1133 15TH STREET,
N.W., ROOM 300, WASHINGTON, D.C. 20005, IN WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-63
AND THE PORTION OF THE COMPLAINT IN CASE NO. 3-CA-456 FOUND NOT TO BE
VIOLATIVE OF THE STATUTE BE, AND THEY HEREBY ARE DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 29, 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 THREATEN TO TAKE STRINGENT ACTION AGAINST OUR EMPLOYEES
IF LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, DOES NOT CEASE ITS REPRESENTATIONAL ACTIVITIES IN THEIR
BEHALF.
WE WILL NOT INSTRUCT EMPLOYEES NOT TO COMMUNICATE WITH LOCAL 1,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
WITHOUT FIRST RECEIVING PERMISSION FROM THEIR SUPERVISOR.
WE WILL NOT THREATEN TO MAKE THE WORKING CONDITIONS OF OUR EMPLOYEES
MORE BURDENSOME AND ONEROUS BECAUSE THEY HAVE EXERCISED THEIR RIGHTS TO
GIVE TESTIMONY IN PRE-COMPLAINT INVESTIGATIONS.
WE WILL NOT THREATEN TO WITHHOLD PROMOTIONS FROM OFFICIALS OF LOCAL
1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
UNLESS AND UNTIL THEY CARRY OUT THE REPRESENTATION OF EMPLOYEES AS THEIR
SUPERVISORS INSTRUCT THEM TO DO SO.
WE WILL NOT THREATEN TO, NOR WILL WE WITHHOLD WITHIN-GRADE PROMOTIONS
FROM OFFICIALS OF LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, BECAUSE OF THEIR ACTIVITIES ON BEHALF OF THAT LABOR
ORGANIZATION, NOR WILL WE DISCRIMINATE AGAINST THEM BECAUSE THEY HAVE
COOPERATED WITH AGENTS OF THE FEDERAL LABOR RELATIONS AUTHORITY IN THE
INVESTIGATION OF UNFAIR LABOR PRACTICE CHARGES.
WE WILL NOT SPEAK TO OFFICIALS OF LOCAL 1, INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL ENGINEERS, IN AN ABUSIVE MANNER WHICH
DISPARAGES AND DEMEANS THAT LABOR ORGANIZATION AND DIMINISHES ITS
EFFECTIVENESS IN THE EYES OF THE EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, OR ASSIST LOCAL 1,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, OR ANY
OTHER LABOR ORGANIZATION, OR TO VINDICATE SUCH RIGHTS IN ANY PROCEEDINGS
BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY.
(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1133 15TH STREET, N.W., SUITE 300, WASHINGTON, D.C. 20005, AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
D. RANDALL FRYE
HEATHER BRIGGS GOTTS
COUNSEL FOR GENERAL COUNSEL
NONA J.JORDAN
WALTER B. BAGBY
COUNSEL FOR RESPONDENT
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING ARISES FROM COMPLAINTS FILED ON AUGUST 29, 1979
ALLEGING VIOLATIONS OF SECTIONS 19(A)(1), (2) AND (4) OF EXECUTIVE ORDER
11491 (CASES 3-CA-20 AND 21); AND ON OCTOBER 19, 1979, ALLEGING
VIOLATIONS OF SECTION 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR
MANAGEMENT RELATIONS STATUTE (CASES 3-CA-63 AND 456). LOCAL 1,
INTERNATIONAL FEDERATION OF PROFESSIONALS AND TECHNICAL ENGINEERS IS THE
CHARGING PARTY IN ALL CASES EXCEPT 3-CA-63, WHICH WAS BROUGHT BY THE
TIDEWATER FEDERAL EMPLOYEES METAL TRADES COUNCIL. IN ESSENCE, NORFOLK
NAVAL SHIPYARD IS ACCUSED IN 3-CA-63, OF INTERFERING WITH THE RIGHTS OF
ITS EMPLOYEES TO LEND ASSISTANCE AND SUPPORT TO THE STEELWORKERS UNION
IN ITS STRIKE AGAINST NEWPORT NEWS SHIPYARD. THE BALANCE OF THE
ALLEGATIONS CONCERN THE CHEMICAL LABORATORY, PARTICULARLY THAT BRANCH
SUPERVISED BY MR. PAUL WILSON, WHERE IT IS ASSERTED THAT VARIOUS ACTS OF
INTIMIDATION OF UNION ACTIVISTS OCCURRED, AND A WITHIN-GRADE INCREMENT
WAS DISCRIMINATORILY WITHHELD FROM MR. ROBERT COLGIN. AT THE HEARING
THE COMPLAINT IN 3-CA-456 WAS AMENDED TO ALLEGE THAT MR. WILSON SPOKE TO
A UNION OFFICIAL ON OCTOBER 11, 1979 IN AN ABUSIVE, DISPARAGING AND
DEMEANING MANNER, THAT WILSON AND MR. SAUL LOWE, HIS IMMEDIATE
SUPERVISOR HAD ON OCTOBER 29, 1979, INSTRUCTED EMPLOYEES UNDER SUBPOENA
NOT TO APPEAR AT THE HEARING, AND THAT MR. ANDY JAMES, RESPONDENT'S
CHIEF INDUSTRIAL RELATIONS OFFICER, ON OCTOBER 30, 1979, REFUSED
OFFICIAL TIME TO MR. RALPH MCELFRESH AND MR. HANSEL HUGHES, EMPLOYEES
SUBPOENAED TO APPEAR.
A HEARING WAS HELD IN NORFOLK, VIRGINIA. ALL PARTIES WERE AFFORDED
AN OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND
TO PRESENT EVIDENCE. ON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE DEMEANOR OF WITNESSES, I MAKE THE FOLLOWING FINDINGS
OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS.
FINDINGS OF FACT
BACKGROUND:
CAPTAIN ALFRED KURZENHAUSER IS COMMANDER OF NORFOLK NAVAL SHIPYARD.
THE CHEMICAL LABORATORY (CODE 134) IS HEADED BY SAUL LOWE. CODE 134.1,
A BRANCH OF THE LAB, IS SUPERVISED BY PAUL WILSON. LOWE REPORTS, IN
TURN, TO MR. MAC WILLIAMS, CHIEF QUALITY ASSURANCE ENGINEER. AT
RELEVANT TIMES THE CHARGING PARTIES WERE RECOGNIZED REPRESENTATIVES OF
UNITS OF RESPONDENT'S EMPLOYEES AND WERE PARTIES TO COLLECTIVE
BARGAINING AGREEMENTS. TEN EMPLOYEES WORKED IN CODE 134.1, AND AT
VARIOUS TIMES FOUR OF THEM HAVE HELD OFFICE IN LOCAL 1. ROBERT COLGIN
HAS BEEN FINANCIAL SECRETARY SINCE 1976, AND HAS SERVED ON THE
NEGOTIATING TEAMS DEALING WITH THE COLLECTIVE AGREEMENT, SHIPYARD
INSTRUCTIONS AND LOCALIZED WORKING CONDITIONS. HE HAS ALSO REPRESENTED
INDIVIDUAL EMPLOYEES. JOANNA CULVER WAS STEWARD FOR THAT BRANCH.
COLGIN AND WILSON HAD WORKED TOGETHER AS CHEMISTS FROM 1965, AND
APPEAR TO HAVE BEEN FRIENDS AT LEAST UNTIL WILSON WAS PROMOTED TO
SUPERVISORY CHEMIST IN CODE 134.1 IN 1976. IT IS CLEAR THAT COLGIN AND
OTHER CHEMISTS DID NOT HAVE GREAT RESPECT FOR WILSON'S TECHNICAL
ABILITY, THAT WILSON WAS AWARE OF THIS AND THAT HE WAS VERY SENSITIVE
ABOUT HIS SUBORDINATES' RESPECT FOR HIS AUTHORITY AND POSITION.
WILSON WAS A MORE FORCEFUL SUPERVISOR THAN HIS PREDECESSOR, AND
APPEARS TO HAVE ATTEMPTED TO CRACK DOWN ON NONWORK RELATED READING AND
OTHER MATTERS. IN ANY EVENT, RELATIONSHIPS DETERIORATED TO THE POINT
WHERE COLGIN, LOCAL 1 TREASURER BILL ROBERTS AND LOCAL 1 PRESIDENT RALPH
MCELFRESH MET WITH CHIEF QUALITY ASSURANCE ENGINEER WILLIAMS ON APRIL 3,
1978 TO DISCUSS PROBLEMS THE CHEMISTS WERE HAVING WITH WILSON,
PARTICULARLY HIS THREATS TO SEND EMPLOYEES HOME AND A POLICY HE HAD
RECENTLY ANNOUNCED RESTRICTING ACCESS TO HIM. /4/ THE NEXT DAY A
SIMILAR MEETING WAS HELD WITH SAUL LOWE PRESENT, AT WHICH UNFAIR LABOR
PRACTICE CHARGES FILED BY THE UNION WERE DISCUSSED, AND COLGIN INDICATED
THAT FURTHER CHARGES MIGHT BE FILED AS A CONSEQUENCE OF AN ALLEGED
CHANGE OF POLICY REGARDING ACCESS TO FILES WHICH WILSON HAD ANNOUNCED ON
MARCH 31, 1979. WILSON ANSWERED COLGIN WITH A REMARK TO THE EFFECT THAT
SUCH CHARGES ARE A BIG JOKE TO HIM AND ARE TAKEN AS SERIOUSLY AS THE
COMICS BY THE LABOR RELATIONS SECTION. ON APRIL 10, PRESIDENT MCELFRESH
WROTE THE LABOR RELATIONS OFFICE TO COMPLAIN ABOUT THIS ATTITUDE AND ON
THE FOLLOWING DAY A PRE-COMPLAINT CHARGE WAS FILED CONCERNING THE
ALLEGED CHANGE.
APPARENTLY ALSO IN APRIL OF 1978, WILSON DISTRIBUTED TO LABORATORY
EMPLOYEES COPIES OF THE NEW COLLECTIVE BARGAINING AGREEMENT TOGETHER
WITH A DOCUMENT ENTITLED "REMEMBER THIS", A COPY OF WHICH IS ATTACHED AS
APPENDIX A. NOTWITHSTANDING THE FACT THAT WILSON HAD BEEN A UNION
ACTIVIST AND STEWARD, THIS MESSAGE, DISTRIBUTED WITH THE CONTRACT, AND
AT A TIME WHEN WILSON WAS HAVING TROUBLES WITH THE UNION, RATHER CLEARLY
INDICATES HIS DISPLEASURE WITH SUCH CRITICISM. IT IS ALSO A WITNESS TO
THE SENSITIVITY MENTIONED ABOVE, AND CONTAINS A BLATANT THREAT TO THOSE
WHO DARE CRITICIZE.
ON APRIL 18, 1978, A MISUNDERSTANDING OCCURRED IN WHICH WILSON
THOUGHT THAT CHEMIST HANSEL HUGHES WAS DELIBERATELY DISREGARDING HIS
INSTRUCTIONS THAT LABORATORY CUSTOMERS WERE NOT TO BE PERMITTED TO WAIT
WHILE SAMPLES THEY BROUGHT WERE ANALYZED. AS A CONSEQUENCE, WILSON
ORDERED HUGHES HOME. COLGIN INTERCEDED, INFORMING WILSON THAT THE
REGULATIONS DID NOT PERMIT ORDERING AN EMPLOYEE HOME IN SUCH A
SITUATION. WILSON ANGRILY ORDERED THEM TO HIS OFFICE AND THERE ACCUSED
COLGIN OF INTERFERING WITH HIS EFFORT TO SUPERVISE AN EMPLOYEE.
SUBSEQUENTLY HUGHES WAS TOLD TO ACCOMPANY WILSON TO LOWE'S OFFICE, AND
REQUESTED THAT COLGIN ACCOMPANY HIM. WHEN COLGIN ARRIVED AT LOWE'S
OFFICE, WILSON SLAMMED THE DOOR IN HIS FACE, AND AFTER HE ENTERED, AND
HUGHES HAD MADE KNOWN HIS WISH TO BE REPRESENTED, WILSON ORDERED HIM TO
LEAVE. WHEN COLGIN REFUSED, WILSON ORDERED HIM TO REPORT TO HIS OFFICE,
WITH HIS UNION REPRESENTATIVE IN 30 MINUTES, BECAUSE HE INTENDED TO TAKE
DISCIPLINARY ACTION. AT THAT MEETING, WILSON TOLD COLGIN OF HIS
INTENTION TO ISSUE A WRITTEN REPRIMAND BASED ON INSUBORDINATION. THE
REPRIMAND ISSUED ON AUGUST 3, 1978 (GC EXH. 10). ON SEPTEMBER 7,
DEPARTMENT HEAD LOWE ADVISED COLGIN BY MEMORANDUM THAT THE REPRIMAND
HAD
BEEN WITHDRAWN AND EXPUNGED FROM THE FILES BECAUSE OF "ADMINISTRATIVE
ERRORS" CONTAINED IN IT (GC EXH. 11). /5/
COLGIN AND WILSON HAD A FURTHER CLASH IN MAY, 1978, WHEN COLGIN
REQUESTED PERMISSION TO ATTEND A 1:30 P.M. MEETING CONCERNING A
PRE-COMPLAINT CHARGE. WILSON REPLIED HE WOULD LET COLGIN KNOW AT THAT
TIME. THE MEETING WAS CANCELLED BECAUSE OF THE UNCERTAIN ATTENDANCE OF
A NECESSARY PARTICIPANT. WHEN WILSON GRANTED COLGIN PERMISSION AT 12:45
P.M., WILSON ACCUSED HIM OF LYING ABOUT THE 1:30 TIME LIMIT.
ALL OF THE ABOVE IS BACKGROUND EVIDENCE, UPON WHICH NO UNFAIR LABOR
PRACTICE FINDING MAY BE MADE. THIS HISTORY DOES, HOWEVER, CLEARLY
ESTABLISH A DISPOSITION ON WILSON'S PART TO REACT WITH ANGER AND WITH
THREATS TO WHAT HE PERCEIVED AS INSUFFICIENT RESPECT FOR HIS AUTHORITY
OR AS AN EFFORT TO LAUNDER DIRTY LINEN OUTSIDE CODE 134.1.
UNFORTUNATELY, THIS OFTEN INCLUDED FORMS OF PERFECTLY LEGITIMATE, AND
THUS PROTECTED, UNION ACTIVITY. WILSON TESTIFIED THAT UNION OFFICERS
COLGIN AND CULVER TENDED TO CONFUSE THEIR ROLES AS OFFICIALS WITH THEIR
ROLES AS EMPLOYEES SUBORDINATE TO HIM. I FIND THAT A FAR MORE SERIOUS
PROBLEM WAS WILSON'S CONFUSION ON THIS SCORE: AN EVIDENT INABILITY TO
SEPARATE CRITICISMS OF HIM MADE IN CHARGES FILED UNDER THE ORDER OR
STATUTE, OR IN REPRESENTATIONAL ACTIVITY, FROM THE RESPECT AND DEFERENCE
OWED A SUPERVISOR BY HIS SUBORDINATE ON THE JOB. WHILE THE RECORD
INDICATES INSTANCES OF DISRESPECT FOR WILSON'S POSITION AND AUTHORITY,
SOMETIMES EXPRESSED BY UNION OFFICIALS IN THE CAPACITY AS EMPLOYEES, IT
IS CLEAR THAT HE ROUTINELY RESPONDED TO CRITICISMS MADE UNDER THE AEGIS
OF THE UNION OR THE LAW WITH THREATS OF PUNISHMENT, REPRIMANDS, AND
DISCRIMINATION. HE COULD NOT DIFFERENTIATE BETWEEN THE DISRESPECT
AND/OR INSUBORDINATION WHICH SOMETIMES MANIFESTED ITSELF ON THE JOB, AND
THAT WHICH WAS AN UNAVOIDABLE INGREDIENT OF UNION ACTIVITIES PROTECTED
BY LAW. I CONCLUDE FROM THIS BACKGROUND EVIDENCE THAT HE WAS DISPOSED
TO VIEW PROTECTED UNION ACTIVITY NOT ONLY AS TROUBLESOME AND ANNOYING,
BUT AS DISLOYAL AND INSUBORDINATE, AND TO ACT ACCORDINGLY.
EVENTS WITHIN THE SCOPE OF THE COMPLAINTS OR ALLEGEDLY FULLY
LITIGATED:
IN JUNE OR JULY, WILSON CONVEYED TO PRESIDENT MCELFRESH, THROUGH
EQUAL OPPORTUNITY SPECIALIST BROWN, THE MESSAGE THAT HE WAS "TIRED OF
THIS SHIT, AND IF HE DOESN'T CALL OFF THE DOGS I'M GOING TO PUT HIM OUT
OF BUSINESS" (OR "TAKE MORE STRINGENT ACTION AGAINST THE PEOPLE"). THIS
WAS PROVOKED BY MCELFRESH'S VISIT TO THE LABORATORY TO INTERVIEW
EMPLOYEES IN CONNECTION WITH AN INVESTIGATION OF A CHARGE FILED IN CASE
22-09154(CA). WHILE THERE WAS MUCH DISPUTE CONCERNING WHETHER MCELFRESH
HAD RECEIVED APPROPRIATE CLEARANCE FOR SUCH AN INVESTIGATION, IT IS
CLEAR THAT ROOM WAS MADE AVAILABLE AND EMPLOYEES RELEASED ON SCHEDULE TO
ACCOMMODATE THE INVESTIGATION. I FIND IT INCONCEIVABLE THAT A MASSIVE
AND UNAUTHORIZED INTRUSION INTO THE LABORATORY WOULD HAVE BEEN TOLERATED
BY MANAGEMENT. I THEREFORE FIND THAT THE MESSAGE CONVEYED TO MCELFRESH
WAS INTENDED TO THWART FURTHER UNION ACTIVITY.
IN MID-JULY, VERY SHORTLY AFTER FURTHER UNFAIR LABOR PRACTICE CHARGES
WERE FILED, WILSON CALLED HIS STAFF TOGETHER AND INFORMED THEM THAT
THOSE WITH PROBLEMS WERE TO COME TO HIM FIRST, AND WERE NOT ALLOWED TO
SPEAK TO EEO OR ANY OTHER SOURCE, INCLUDING LOWE, WITHOUT HIS
PERMISSION.
IN LATE AUGUST, WILSON CALLED JOANNA CULVER INTO HIS OFFICE, WHERE HE
EXPLAINED TO HER, AS SHOP STEWARD, THAT HE PLANNED A "VERY STRICT"
MEETING AT WHICH HE WOULD INFORM EMPLOYERS THAT HE WOULD BE "GOING BY
THE BOOK" ON TELEPHONE USE, PUNCTUALITY, WORK HABITS AND OTHER MATTERS,
BECAUSE A NUMBER OF EMPLOYEES BORE FALSE WITNESS AGAINST HIM IN THE
COLGIN GRIEVANCE, AND BECAUSE HE HAD OVERHEARD EMPLOYEES, ON THE
INTERCOM, MAKING COMMENTS ABOUT HIM AND URGING A SLOW DOWN.
ON SEPTEMBER 28, 1978 STEWARD CULVER ASKED WILSON WHETHER HE HAD
FOUND A MISPLACED LIST OF QUESTIONS PREPARED BY THE UNION AND RESPONSES
MADE BY DIVISION HEAD LOWE WHICH CONCERNED PROBLEMS THE CHEMISTS WERE
HAVING, PARTICULARLY WITH THE SUPERVISION PROVIDED BY WILSON. WILSON
REPLIED THAT HE HAD THEM, WAS SURPRISED THAT THEY BELONGED TO HER AND
WOULD NOT RETURN THEM. AGAIN, CONFRONTED WITH CRITICAL MATERIALS, HE
BECAME ANGRY AND BERATED CULVER FOR GOING TO THE DIVISION HEAD WITH
"QUESTIONS PERTAINING TO FIRST-LINE SUPERVISORS". HE THEN TOLD HER THAT
AS HER PROMOTION WOULD BE COMING UP SOON, IT WAS A GOOD TIME FOR HIM AND
LOWE TO MEET WITH HER AND TELL HER HOW TO ACT AS UNION STEWARD. ON THE
FOLLOWING DAY HE CALLED A STAFF MEETING AND TOLD THE EMPLOYEES THAT
THEIR FIRST OBLIGATION WAS TO ANSWER TO HIM, AND NOT TO ANYONE ELSE.
ON NOVEMBER 18, COLGIN AND CULVER RECEIVED PERMISSION TO GIVE
TESTIMONY TO AN AUTHORITY AGENT IN CASE 22-09154, FILED AGAINST WILSON.
ON THE FOLLOWING DAY WILSON GAVE TESTIMONY. ON THE NEXT DAY HE GATHERED
THE STAFF TO ANNOUNCE A MORE RESTRICTIVE POLICY CONCERNING PHONE CALLS.
AT COLGIN'S REQUEST THAT ANY CHANGE BE NEGOTIATED, A MEETING TOOK PLACE
INVOLVING HIM, WILSON AND LOWE. WILSON INFORMED COLGIN THAT FURTHER
PURSUIT OF THE TELEPHONE MATTER WOULD RESULT IN EMPLOYEES GETTING NO
CALLS. LATER IN THE DAY, WILSON TOLD COLGIN THAT THE FORMS FOR COLGIN'S
SALARY INCREMENT (WITHIN GRADE RAISE) HAD ARRIVED SOME TIME AGO, BUT
THAT HE HAD AWAITED AN "APPROPRIATE TIME" TO TELL HIM THAT HIS
PERFORMANCE WAS NOT GOOD. WILSON SAID THAT COLGIN WAS SLOW, WAS OUT OF
HIS WORK AREA FOR EXTENDED PERIODS AND WAS ENGAGED IN "NON-WORK RELATED
ACTIVITIES". COLGIN RESPONDED THAT HE DID ONLY NECESSARY UNION WORK FOR
WHICH HE HAD RECEIVED PERMISSION. SEVERAL WEEKS LATER A DISPUTE
DEVELOPED OVER ASBESTOS SAMPLES WHICH CHEMIST GEORGE LINDSAY WAS
WORKING
ON, AND WITH RESPECT TO WHICH HE HAD SOUGHT COLGIN'S ASSISTANCE IN
WILSON'S ABSENCE. DIVISION HEAD LOWE (WHOM LINDSAY HAD NOT APPROACHED
BECAUSE OF WILSON'S KNOWN REACTION TO THOSE WHO WENT OVER HIS HEAD)
LEARNED OF THE PROBLEM, SPOKE TO COLGIN AND LINDSAY AND PROMISED TO
DISCUSS THE MATTER WITH WILSON. ON THE FOLLOWING DAY, WILSON, VISIBLY
UPSET ABOUT THE TIME REQUIRED TO ANALYZE THE SAMPLES (AND PERHAPS ABOUT
LOWE'S AS WELL AS COLGIN'S INVOLVEMENT) INTERROGATED BOTH CHEMISTS ABOUT
THE SAMPLES. WHEN TOLD BY COLGIN THAT THEY HAD SPENT ABOUT THREE HOURS
ON THE MATTER, HE TOLD COLGIN TO REPORT TO HIS OFFICE ON DECEMBER 4.
THERE A MEETING TOOK PLACE AT WHICH JAMES O'BRIANT REPRESENTED COLGIN,
AND SUPERVISOR BRAD CASAS WITNESSED MATTERS FOR WILSON. WILSON SAID
THAT COLGIN'S PERFORMANCE HAD NOT IMPROVED SINCE THEIR MID-NOVEMBER
MEETING, AND SPECIFICALLY REFERRED TO THE LENGTH OF TIME SPENT ON THE
ASBESTOS SAMPLES, TO COLGIN'S HABIT OF SPENDING TOO MUCH TIME AWAY FROM
WORK AREAS, AND TO THE FACT THAT HE SPENT TOO MUCH TIME ON "NON-JOB
RELATED" DUTIES. HE POINTEDLY REMINDED COLGIN THAT HIS JOB WAS WHERE HE
GOT HIS MONEY-- NOT UNION ACTIVITIES OR ADVISING OTHER PEOPLE WHAT TO
DO, AND THAT THE FUNCTION OF THE UNION WAS TO HELP PEOPLE TO WORK
TOGETHER WITH THE MANAGER, AND NOT AGAINST HIM. HE TOLD COLGIN THAT HIS
PERFORMANCE WOULD IMPROVE IF HE PAID MORE ATTENTION TO HIS JOB AND LESS
TO OTHER PEOPLE'S AFFAIRS. WHILE THERE IS CONTROVERSY AS TO WHETHER
EXPLICIT MENTION OF THE UNION WAS MADE IN A MANNER SUGGESTING IT
IMPACTED IMPROPERLY ON THE PERFORMANCE EVALUATION, EVEN SUPERVISOR CASAS
CONCEDED THAT THERE WERE REFERENCES TO NON-JOB RELATED FUNCTIONS WHICH
WERE REFERENCES TO UNION ACTIVITIES. IT IS CLEAR THAT WILSON THINLY
VEILED SUCH IMPERMISSIBLE THREATS WITH TALK OF "THIS TYPE OF THING",
"TALKING TO OTHER PEOPLE", BEING "AWAY FROM THE WORK AREA" AND ENGAGING
IN "NON-JOB RELATED" ACTIVITIES. TO BE SURE, MANY CRITICISMS OF COLGIN'S
PERFORMANCE UNCONNECTED WITH HIS UNION ROLE WERE ALSO MADE, AND
RESPONDENT RELIES HEAVILY ON THE SUGGESTION THAT MUCH OF IT WAS VALID
CRITICISM OF COLGIN'S EXCESSIVE USE OF TIME FOR UNION PURPOSES. THERE
IS, HOWEVER, NO EVIDENCE THAT WILSON EVER CRITICIZED COLGIN ON A
SPECIFIC OCCASION, ABOUT TAKING TOO MUCH TIME AS A UNION REPRESENTATIVE.
AGAIN, SAUL LOWE ADMITTED THAT WILSON'S CHIEF CONCERNS WERE COLGIN'S
SLOWNESS AND HIS BEING AWAY FROM WORK STATIONS. THERE IS NO PERSUASIVE
EVIDENCE THAT COLGIN'S ABSENCES FROM THE WORK AREA WERE FOR ANY REASON
OTHER THAN UNION REPRESENTATION. LOWE ALSO, LIKE EVERY WITNESS ASKED
THE QUESTION, REGARDED COLGIN AS AN EXCELLENT CHEMIST. THE MEETING
ENDED ON THE NOTE THAT COLGIN'S PERFORMANCE WOULD NOT WARRANT AN
INCREMENT, BUT THAT THEY WOULD MEET AGAIN ON DECEMBER 15. NO SUCH
MEETING WAS HELD, AND ON DECEMBER 22, THE WITHIN-GRADE RAISE WAS
WITHHELD. COLGIN WAS ADVISED OF THIS BY THE PAYROLL SECTION ON JANUARY
2, 1979. A REQUEST FOR RECONSIDERATION WAS FILED ON FEBRUARY 6,
PURSUANT TO FPM SUPP. 990-2, BOOK 531, SUBCHAPTERS 4-9, WHICH APPARENTLY
CORRESPONDS TO THE REGULATIONS SET FORTH AT 5 C.F.R. 531 407(D), WHICH
DERIVE FROM 5 U.S.C. 5335. THOSE REGULATIONS REQUIRE AGENCIES TO USE
UNIFORM PROCEDURES ENSURING A NUMBER OF THINGS IN THE HANDLING OF
APPEALS FROM NEGATIVE WITHIN-GRADE DETERMINATIONS, AND THEY PROVIDE FOR
APPEAL TO OPM (THEN CSC) IF THE AGENCY AFFIRMS THE DETERMINATION UPON
RECONSIDERATION. THEY MAKE NO EXPLICIT MENTION OF AN EMPLOYEE'S RIGHT
TO LITIGATE THE QUESTION WHETHER CONSIDERATIONS OF UNION MEMBERSHIP
UNLAWFULLY IMPACTED UPON THE DETERMINATION. IT IS NOT KNOWN WHETHER THE
NAVY'S REGULATIONS IMPLEMENTING 5 C.F.R. 531 407(D) DO SO.
THERE ARE A NUMBER OF FACTORS, NOT EASILY WOVEN INTO THIS NARRATIVE,
WHICH BEAR UPON WILSON'S DECISION THAT COLGIN'S WORK WAS NOT AT AN
ACCEPTABLE LEVEL OF COMPETENCE. THUS, FOR EXAMPLE, THERE WAS MUCH
EVIDENCE AND CONTINUES TO BE ARGUMENT CONCERNING ALLEGEDLY INSUBORDINATE
CONDUCT BY COLGIN. HE ADMITTED TELLING WILSON TO RUN THE OFFICE AND
THAT HE (COLGIN) WOULD RUN THE LABORATORY. WILSON, HOWEVER, STATED THAT
INSUBORDINATION HAD NOTHING TO DO WITH THE DECISION TO WITHHOLD THE
WITHIN-GRADE. MORE IMPORTANTLY MUCH EVIDENCE WAS TAKEN WITH RESPECT TO
WHETHER COLGIN WAS DOING SLOW WORK. HIS PEERS UNIFORMLY PRAISED HIM,
AND HIS SUPERVISORS CONCEDED HIS COMPETENCE. HE HAD CLEARLY BEEN
ASSIGNED NEW AND DIFFICULT ANALYSES. THE QUESTION IS WHETHER HE WAS
DOGGING IT. DURING THE MONTHS SURROUNDING THE WITHIN-GRADE APPRAISAL HE
SPENT MUCH OF HIS TIME OFF THE CLOCK OF CODE 134.1. THE MAJOR MATTER
WAS IN CODE 134.2 WHERE HE WORKED ON A STEAM GENERATOR CLEANING
PROCEDURE. FOR SEVERAL MONTHS THIS CONSUMED 4 HOURS PER DAY. IT LASTED
FROM OCTOBER TO JANUARY. ACCORDING TO WILLIAM ROBERTS, A NUCLEAR
CO-ORDINATOR WHO SUPERVISED THIS WORK, AND WHO WAS OBVIOUSLY IMPRESSED
BY COLGIN, HE WAS ONE OF 13 PEOPLE SELECTED TO WORK IN THE PROJECT, AND
HE SCORED VERY HIGH IN THE TESTS ADMINISTERED BY WESTINGHOUSE
CORPORATION. I CREDIT ROBERT'S TESTIMONY THAT LETTERS OF APPRECIATION
WERE, ACCORDING TO LOWE, TO BE ISSUED SHORTLY TO ALL PARTICIPANTS. FOR
MORE IMPORTANTLY, I CREDIT HIS TESTIMONY THAT WILSON DID NOT INVOLVE HIM
IN THE ASSESSMENT OF COLGIN'S PERFORMANCE, EVEN THOUGH THE STEAM
GENERATOR WORK OCCURRED AT A CRITICAL TIME FOR WITHIN-GRADE RAISE
PURPOSES.
ON FEBRUARY 7, WILSON PREPARED A MEMO STATING THAT, BASED ON COLGIN'S
PERFORMANCE DURING THE LAST 60 DAYS, NO SOUND BASIS EXISTED TO GRANT THE
INCREASE. ON FEBRUARY 27, COLGIN AND MCELFRESH MET WITH CHIEF QUALITY
ASSURANCE ENGINEER WILLIAMS TO DISCUSS THE MATTER. ON MARCH 1, WILLIAMS
ADDRESSED A MEMO TO COLGIN, GRANTING THE INCREASE RETROACTIVELY AND
STATING THAT MR. WILSON HAD REPORTED A NOTICEABLE IMPROVEMENT IN HIS
PERFORMANCE DURING THE LAST 60 DAYS. IN APPARENT, AND RATHER SURPRISING
SUPPORT OF THIS DECISION, WILLIAMS FORWARDED A COPY OF WILSON'S FEBRUARY
7 STATEMENT THAT NO SOUND REASON FOR REVERSAL EXISTED. IT IS DIFFICULT
TO AVOID THE CONCLUSION THAT WILLIAMS IN FACT, FOR THE SECOND TIME, IN
EFFECT INSTRUCTED WILSON TO RESCIND AN EARLIER PERSONNEL ACTION.
ON MARCH 9, CAPTAIN KURZENHAUSER PUBLISHED A COLUMN IN THE SHIPYARD
HOUSE-ORGAN, THE TEXT OF WHICH IS ATTACHED AS APPENDIX B. IT DEALT WITH
HOW SHIPYARD EMPLOYEES SHOULD SO COMPORT THEMSELVES AS TO IMPROVE THE
IMAGE OF GOVERNMENT EMPLOYEES WITH THE TAXPAYING PUBLIC. IT REMINDED
THEM THAT THIS RESPONSIBILITY TO CONVEY THE RIGHT IMAGE CARRIED OVER
INTO NON-WORK TIME WHENEVER THE ASSOCIATION WITH THE SHIPYARD WAS MADE
KNOWN. IN MANY RESPECTS IT WAS SIMPLY A PEP TALK, DESIGNED TO IMPROVE
MORALE AND TO ACHIEVE GREATER PRIDE IN WORK. WITHIN THE SPACE OCCUPIED
BY THE COLUMN WAS A PHOTOCOPY OF SEVERAL PARAGRAPHS FROM A LOCAL
NEWSPAPER ARTICLE ANNOUNCING "NAVAL SHIPYARD WORKERS TO JOIN PENINSULA
PICKETS". THE TEXT REPORTED THAT THE METAL TRADES COUNCIL AT THE
SHIPYARD HAD ANNOUNCED THAT ABOUT 50 MEMBERS WOULD MARCH WITH
STEELWORKERS PICKETS IN SUPPORT OF THAT UNION'S STRIKE AGAINST NEWPORT
NEWS SHIPYARD.
ON AUGUST 22,STEWARD CULVER UNDERSTOOD WILSON TO TELL HER THAT SHE
WOULD RECEIVE FOUR HOURS OVERTIME THAT AFTERNOON, AND TO REQUEST HER TO
GET LEE WILSON WHO WOULD ALSO BE WORKING. THE WORK INVOLVED EMISSION
SPECTROGRAPHIC ANALYSIS, THE VERY JOB SHE WAS ASSIGNED TO THAT DAY. /6/
WHEN SHE RETURNED TO HIS OFFICE HE TOLD HER THAT SHE HAD MISUNDERSTOOD
HIM, AND EXPLAINED THAT HE DID NOT ASSIGN OVERTIME TO EMPLOYEES WHO HAD
WORKED 16 HOURS THE DAY BEFORE. /7/ CULVER GRIEVED, CITING ARTICLE 8,
SECTION 2 OF THE AGREEMENT, WHICH STATES THAT "FIRST PRIORITY FOR
OVERTIME ASSIGNMENTS SHALL BE GIVEN TO THE EMPLOYEE WHO IS REGULARLY AND
CURRENTLY ASSIGNED TO THE JOB TO BE WORKED ON AN OVERTIME SCHEDULE. ALL
OTHER ASSIGNMENTS TO OVERTIME SHALL BE DISTRIBUTED IN A FAIR, JUST AND
NONDISCRIMINATORY MANNER AMONG THE EMPLOYEES QUALIFIED TO PERFORM THE
WORK AND WHO ROUTINELY PERFORM THE WORK DURING THE REGULAR WORK WEEK".
AS CORRECTIVE ACTION CULVER SOUGHT "COMPENSATION EQUAL TO FOUR HOURS
OVERTIME AND EQUITABLE DISTRIBUTION OF OVERTIME . . . IN ACCORDANCE WITH
ARTICLE 8 OF THE AGREEMENT."
ON OCTOBER 11, WILSON FOUND CHEMIST TIARE EMORY APPROACHING CHEMIST
LEE WILSON, WHO SHE BELIEVED TO BE THE ACTING SUPERVISOR IN WILSON'S
ABSENCE, WITH RESPECT TO AN URGENT OIL SAMPLE ANALYSIS REQUESTED BY A
CUSTOMER. WILSON, IN ANGER, INFORMED HER THAT SHE WAS NOT TO TAKE A
WORKER TO THE ALTERNATE WHEN SHE KNEW HE WAS IN THE BUILDING AND THAT
SHE SHOULD BRING HER REPRESENTATIVE TO HIS OFFICE IN THE MORNING AND BE
PREPARED FOR DISCIPLINARY ACTION. EMORY THEN APPROACHED STEWARD CULVER
TO TELL HER OF THE PROBLEM AND REQUESTED HER REPRESENTATION. ALMOST
IMMEDIATELY WILSON LAUNCHED INTO A TIRADE, TELLING THE TWO THAT THEY
COULD NOT CONDUCT UNION BUSINESS ON THE JOB, POINTING HIS FINGER AT AND
INSTRUCTING CULVER TO TELL EMORY THAT SHE COULD NOT TALK TO CULVER
WITHOUT HIS PERMISSION AND CULVER THAT SHE COULD NOT TALK TO EMORY
WITHOUT HIS PERMISSION. WHEN CULVER REPLIED THAT SHE BELIEVED THE
EMPLOYEE COULD LET HER KNOW THAT HE HAD TOLD HER TO BRING A UNION
REPRESENTATIVE TO HIS OFFICE, WILSON ASKED WHERE IN THE CONTRACT IT SAID
SO, AND CHALLENGED HER TO FIND THE CONTRACT PROVISION GIVING HER THE
RIGHT TO TALK TO EMPLOYEES DURING WORKING HOURS. THIS INCIDENT FOLLOWED
CLOSELY UPON CULVER'S PERMITTED REPRESENTATION OF HUGHES THAT MORNING.
LATE IN THE WORK DAY ON OCTOBER 29, THE DAY BEFORE THIS HEARING
COMMENCED, WILSON CALLED THE STAFF TOGETHER. HE TOLD THEM THAT HE
UNDERSTOOD SOME OF THEM HAD PIECES OF PAPER INSTRUCTING THEM TO APPEAR
IN COURT THE FOLLOWING DAY AND THAT THERE SEEMED TO BE SOME QUESTION
WHETHER THEY SHOULD REPORT DIRECTLY TO THE COURTROOM OR SHOULD FIRST
REPORT TO THE LAB. HE TOLD THEM TO REPORT AS USUAL AT 7:20 A.M., AND
THAT HE WOULD LET THEM KNOW WHEN IT WAS TIME TO GO TO COURT. A FEW
MOMENTS LATER SAUL LOWE TOLD THEM THAT HE HAD JUST FINISHED SPEAKING TO
THE INDUSTRIAL RELATIONS OFFICE, WHICH HAD INFORMED HIM THAT ANOTHER
CASE MIGHT HAVE PRIORITY OVER THEIRS, GIVING RISE TO THE POSSIBILITY
THAT THE CASE IN WHICH THEY WERE TO TESTIFY MIGHT NOT BE HEARD ON THE
FOLLOWING DAY. HE INSTRUCTED THEM TO REPORT TO WORK AS USUAL, AND TO BE
PREPARED FOR THE POSSIBILITY THAT THEY WOULD WORK THE ENTIRE DAY. HE
FURTHER TOLD THEM THEY WOULD BE INFORMED IF THEY WERE NEEDED AND THE
DRIVERS WOULD BE REIMBURSED FOR THEIR EXPENSES. THE COMPLAINT WAS
AMENDED TO ALLEGE THAT WILSON AND LOWE HAD INSTRUCTED WITNESSES NOT TO
APPEAR PURSUANT TO THEIR SUBPOENAS. ALL WITNESSES, WERE, IN FACT,
RELEASED IN TIME TO APPEAR AT THE HEARING ON OR BEFORE THE 10:00 A.M.
SCHEDULED COMMENCEMENT ON OCTOBER 30.
THE HEARING WAS RECESSED THAT DAY SHORTLY AFTER NOON, WHEN VOLUMINOUS
SUBPOENAED MATERIALS WERE DELIVERED, THE REVIEW OF WHICH BY THE GENERAL
COUNSEL WOULD REQUIRE MUCH TIME. A DISCUSSION ENSUED BETWEEN COUNSEL
AND MYSELF CONCERNING THE SCHEDULING OF WITNESSES FROM THE LAB FOR THE
FOLLOWING DAY. AFTER THIS WAS RESOLVED, ANDREW JAMES, CHIEF INDUSTRIAL
RELATIONS OFFICER, OVERHEARD COUNSEL FOR THE GENERAL COUNSEL GOTTS
TELLING COUNSEL FOR THE GENERAL COUNSEL FRYE THAT TWO OF THE WITNESSES
IN ATTENDANCE WOULD BE NEEDED THAT AFTERNOON-- UNION PRESIDENT MCELFRESH
AND CHEMIST HANSEL HUGHES. JAMES SAID TO FRYE THAT THE TWO EMPLOYEES
WOULD REQUIRE PERMISSION FROM THEIR IMMEDIATE SUPERVISORS TO BE EXCUSED
FROM WORK THAT AFTERNOON BECAUSE THE SUBPOENAS HAD BEEN COMPLIED WITH
AND ALL OTHER EMPLOYEES HAD RETURNED TO WORK. FRYE RESPONDED THAT THE
WITNESSES WERE STILL UNDER SUBPOENAS AND HIS JURISDICTION. JAMES
RESPONDED THAT THE SUBPOENAS REQUIRED THEIR ATTENDANCE AT THE HEARING TO
TESTIFY. FRYE THEN SAID THAT HE WANTED THESE PEOPLE TO ASSIST IN THE
PREPARATION OF THE CASE THAT AFTERNOON, AND JAMES TOLD HIM THAT "ANY
PHASE OF THE PROCEEDING" (SEE SEC. 2429.3 OF THE FINAL RULES) DID NOT,
IN HIS JUDGEMENT, INCLUDE PREPARATION OF THE GENERAL COUNSEL'S CASE.
MCELFRESH AND HUGHES WERE DENIED OFFICIAL TIME. ALTHOUGH JAMES STATED
THAT ONLY THE COMMANDER HAD AUTHORITY TO GRANT OR DENY OFFICIAL TIME, IT
IS CLEAR THAT THE EMPLOYEES WERE TOLD THEY COULD BE RELEASED ONLY WITH
THE PERMISSION OF THEIR IMMEDIATE SUPERVISORS, AND THAT OFFICIAL TIME
WAS NOT AVAILABLE IN THE CIRCUMSTANCES. IT WAS STIPULATED THAT
MCELFRESH WAS DENIED OFFICIAL TIME AND IS CLEAR FROM THE RECORD THAT
HUGHES WAS ALSO. ON THE FOLLOWING MORNING CASE THE COMPLAINT IN CASE
3-CA-456 AMENDED TO ALLEGE THIS DEPRIVATION AS A VIOLATION OF SECTION
7116(A)(1), (5) AND (8).
CONCLUSIONS
CASES 3 CA 20 AND 21.
THERE IS SOME DOUBT WHETHER THE CHARGES FILED ON JANUARY 18, 1979
WOULD EMBRACE THE UNPLEADED BUT FULLY LITIGATED CONDUCT INVOLVING
WILSON'S "CALL OFF THE DOGS" THREAT, MADE IN JUNE OR JULY, AND HIS
STATEMENT TO THE STAFF IN MID-JULY THAT EMPLOYEES WERE TO BRING THEIR
PROBLEMS TO HIM FIRST, AND WERE NOT TO TAKE THEM TO EEO OR ANY OTHER
SOURCE WITHOUT HIS PERMISSION. NEVERTHELESS THE STATUTE OF LIMITATIONS
WAS NOT PLEADED AS A DEFENSE AND IS CONSEQUENTLY WAIVED. I FIND
WILSON'S STATEMENT ORDERING PRESIDENT MCELFRESH TO CALL OFF THE DOGS OR
BE PUT OUT OF BUSINESS (OR HAVE STRINGENT ACTION TAKEN AGAINST THE
EMPLOYEES), MADE HARD ON THE HEELS OF PROTECTED CONDUCT BY MCELFRESH,
WAS A CLEAR BREACH OF SECTION 19(A)(1) PROHIBITION. LIKEWISE, WILSON'S
STATEMENT TO THE STAFF PROHIBITING EMPLOYEES FROM TAKING THEIR PROBLEMS
TO EEO "OR OTHER SOURCES" WAS A THINLY VEILED REFERENCE TO THE UNION,
MADE SHORTLY AFTER UNFAIR LABOR PRACTICES WERE FILED, AND HENCE WAS AN
OBVIOUS INTERFERENCE WITH THEIR RIGHT TO COMMUNICATE WITH, AND TO SEEK
THE UNION'S ASSISTANCE AND REPRESENTATION. FURTHER, HIS STATEMENT IN
AUGUST TO STEWARD CULVER, THAT HE INTENDED TO CRACKDOWN AND "GO BY THE
BOOK" AS REGARDS TO WORKING CONDITIONS, BECAUSE EMPLOYEES BORE FALSE
WITNESS AGAINST HIM, WAS A NAKED THREAT TO PUNISH THOSE ENGAGED IN
PROTECTED ACTIVITIES AND THUS VIOLATIVE OF SECTION 19(A)(1). AGAIN, ON
SEPTEMBER 28, RESPONDENT VIOLATED SECTION 19(A)(1) WHEN WILSON, ANNOYED
AT CULVER'S ACTION IN DISCUSSING THE CHEMISTS' EMPLOYMENT CONCERNS WITH
DIVISION HEAD LOWE, REMINDED HER THAT HER IMMINENT ELIGIBILITY FOR
PROMOTION MADE IT A GOOD TIME TO TELL HER HOW TO ACT AS UNION STEWARD.
THOUGH NO LECTURE FOLLOWED, A MORE EXPLICIT THREAT THAT DISCRIMINATION
IN EMPLOYMENT TERMS WOULD OCCUR IF AGGRESSIVE UNION ACTIVITY DID NOT
CEASE, COULD NOT HAVE BEEN MADE.
THE MATTER OF WITHHOLDING COLGIN'S WITHIN-GRADE INCREASE IS EQUALLY
FREE FROM DOUBT. HE WAS AN EXCELLENT CHEMIST, WHOSE WILLINGNESS TO WORK
WAS DOUBTED BY NOBODY BUT WILSON. AS NOTED, HE WAS, AT TIMES CRITICAL
TO THE ASSESSMENT OF HIS PERFORMANCE FOR WITHIN-GRADE PURPOSES,
SUBSTANTIALLY OCCUPIED IN MATTERS OUTSIDE WILSON'S JURISDICTION. THE
STEAM GENERATOR ASSIGNMENT, FOR EXAMPLE, WAS ONE IN WHICH COLGIN'S WORK
MORE THAN PLEASED HIS SUPERVISORS, AND YET WILSON MADE NO CHECK
REGARDING HIS PERFORMANCE. I AM NOT PERSUADED BY WILSON'S TESTIMONY
THAT CALLS TO LABS IN OTHER NAVAL SHIPYARDS INDICATED THAT COLGIN TOOK
DAYS TO DO WHAT OTHER, LOWER GRADE CHEMISTS DID IN A MATTER OF HOURS.
IT IS NOT CLEAR WHY WILSON DID NOT LEARN HOW SUCH QUICK ANALYSES WERE
MADE AND INSTRUCT HIS OWN ALLEGEDLY BLUNDERING SUBORDINATES. HE OF
COURSE DID NOT, AND ONE IS LEFT WITH THE IMPRESSION THAT HE DID NOT KNOW
HOW TO DO SO. ELEMENTARY MANAGEMENT CONSIDERATIONS WOULD DICTATE THAT
HE EITHER INSTRUCT THEM IN HOW TO DO THE WORK PROPERLY, OR TAKE SEVERE
DISCIPLINARY ACTION AGAINST ANYONE WHO KNOWS THE WORK AND YET
DELIBERATELY CONSUMES MULTIPLES OF THE TIME REASONABLY REQUIRED FOR THE
JOB. WERE THERE ANY DOUBT ABOUT THE MATTER, IT WOULD BE REMOVED BY THE
TIMING OF WILSON'S DECISION AND THE REMARKS HE MADE DURING THE
COUNSELING EPISODE OF DECEMBER 4. THE FIRST INTIMATION THAT COLGIN WAS
IN TROUBLE FOLLOWED IMMEDIATELY HIS HAVING GIVEN TESTIMONY TO THE
FEDERAL LABOR RELATIONS AUTHORITY FIELD AGENT, AND HIS HAVING REQUESTED
BARGAINING ON WILSON'S ANNOUNCED INTENTION TO RESTRICT THE USE OF
TELEPHONES. WILSON RELIED, IN INFORMING COLGIN THAT HIS SALARY
INCREMENT MIGHT NOT BE FORTHCOMING, NOT ONLY UPON SLOWNESS, BUT ON THE
EXTENDED ABSENCES FOR "NON-WORK RELATED ACTIVITIES". NO EXAMPLE OF
ABUSE OF PERMITTED ABSENCES FOR REPRESENTATION DUTIES WAS PROVIDED, AND
AS THE DECEMBER 4 DISCUSSION CLEARLY ILLUSTRATES, "NON-WORK" WAS A
EUPHEMISM FOR UNION. THUS IT IS CLEAR THAT WILSON'S THREATS TO WITHHOLD
THE INCREMENT WERE VIOLATIVE OF SECTION 19(A)(1), AS THEY INTERFERED
WITH THE RIGHT NOT ONLY TO ENGAGE IN UNION ACTIVITIES BUT TO GIVE
TESTIMONY TO AGENTS OF THE FEDERAL LABOR RELATIONS AUTHORITY. /8/ FOR
THE SAME REASONS, DENIAL OF THE WITHIN-GRADE RAISE VIOLATED SECTIONS
19(A)(1), (2) AND (4).
IN ITS BRIEF RESPONDENT FOR THE FIRST TIME ARGUES THAT COLGIN WAS
PRECLUDED FROM PURSUING A UNFAIR LABOR PRACTICE REMEDY IN THIS MATTER
BECAUSE SECTION 19(D) PROVIDES THAT "ISSUES WHICH CAN PROPERLY BE RAISED
UNDER APPEALS PROCEDURE MAY NOT BE RAISED UNDER THIS SECTION".
ASSUMING, ARGUENDO, THAT THIS IS A JURISDICTIONAL MATTER WHICH
RESPONDENT CAN RAISE AT ANY STATE OF THE PROCEEDING, I CONCLUDE THAT IT
DOES NOT CONSTITUTE A DEFENSE HERE. COLGIN'S REQUEST FOR
RECONSIDERATION WAS FILED PURSUANT TO FPM SUPP. 990-2, BOOK 531,
SUBCHAPTERS 4-9, WHICH APPEARS TO TRACK THE PROVISION OF 5 C.F.R.
531.407(D), WHICH IN TURN DERIVES FROM 5 U.S.C. 5335. HE THUS INVOKED A
STATUTORY APPEALS PROCEDURE, AND ONE WHICH MET THE REQUIREMENT OF
NEUTRAL THIRD-PARTY REVIEW OF THE ISSUE BY THE CIVIL SERVICE COMMISSION.
HOWEVER, ON THIS RECORD IT CANNOT BE DETERMINED WHETHER THERE COULD
HAVE BEEN SUCH REVIEW OF THE UNFAIR LABOR PRACTICE ISSUE. THE RELEVANT
NAVY REGULATIONS ARE NOT IN EVIDENCE. WHILE I TOOK OFFICIAL NOTICE OF
THE UNITED STATES CODE AND THE CODE OF FEDERAL REGULATIONS, THEY DO NOT
EXPLICITLY ADDRESS THE ISSUE WHETHER COLGIN COULD HAVE LITIGATED THE
IMPACT OF HIS EXERCISE OF RIGHTS UNDER THE ORDER UPON DENIAL OF A
WITHIN-GRADE INCREASE. AS THAT QUESTION CANNOT BE ANSWERED ON THIS
RECORD, AND AS IT WAS RESPONDENT'S BURDEN TO MAKE THE NECESSARY RECORD,
I CONCLUDE THAT SECTION 19(D) IS UNAVAILABLE TO IT. SEE TEXAS AIR
NATIONAL GUARD, 4A/SLMR 336.
CASE 3-CA-456
THIS COMPLAINT ALLEGED THAT WILSON UNILATERALLY CHANGED THE POLICY
FOR ASSIGNMENT OF OVERTIME IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF
THE STATUTE. IT IS UNDISPUTED THAT WILSON'S DECISION NOT TO ASSIGN THE
DISPUTED OVERTIME TO CULVER WAS, AT LEAST IN PART, MOTIVATED BY HIS
EXPRESSED POLICY NOT TO GIVE OVERTIME TO EMPLOYEES WHO HAD WORKED 16
HOURS THE DAY BEFORE. THERE IS MUCH DISPUTE AS TO WHETHER WILSON HAD,
IN FACT, FOLLOWED SUCH A POLICY, AND OVERTIME RECORDS WERE INTRODUCED
WHICH ARE INCONCLUSIVE; I.E. THEY DO NOT MAKE IT POSSIBLE TO DETERMINE
WHETHER THIS PROVISION WAS ADMINISTERED SO AS TO AVOID WHERE POSSIBLE
SUCCESSIVE DAYS OF OVERTIME. IT IS ENTIRELY POSSIBLE THAT WILSON SOUGHT
TO AVOID SUCH ASSIGNMENTS AND YET OFTEN WAS UNSUCCESSFUL IN THE ATTEMPT,
SO THAT HIS SUBORDINATES WERE IN FACT UNAWARE OF ANY SUCH POLICY. IN
ANY EVENT, RESPONDENT URGES THAT SECTION 7116(D) PRECLUDES CONSIDERATION
OF THIS ALLEGATION BECAUSE CULVER GRIEVED THE SAME MATTER AND ALSO THAT
THE DISPUTE IS, AT MOST, ONE OF CONTRACT INTERPRETATION TO BE PURSUED
THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE. NEITHER THE CHARGE NOR THE
GRIEVANCE ASSERTS THAT WILSON UNILATERALLY ESTABLISHED A NEW OVERTIME
ASSIGNMENT METHOD OUT OR ANY TOTAL REJECTION OF COLLECTIVE BARGAINING,
NOR DO I FIND THAT SUCH A CHANGE, IF INDEED IT WAS A CHANGE, IS SUCH A
FLAGRANT AND PATENT BREACH OF CONTRACT AS TO CONSTITUTE A UNILATERAL
CHANGE IN VIOLATION OF THE DUTY TO BARGAIN. RATHER, I CONCLUDE THIS IS
A DISPUTE OVER THE MEANING AND INTERPRETATION OF ARTICLE 8, SECTION 2,
AND THUS A MATTER FOR RESOLUTION UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE. ARMY, WATERVLIET ARSENAL, A/SLMR NO. 624.6. /9/
COMPLAINT IN CASE 3-CA-456 WAS AMENDED AT THE HEARING TO ALLEGE THAT
WILSON SPOKE TO CULVER IN AN ABUSIVE, DISPARAGING AND DEMEANING MANNER,
THAT HE AND LOWE INSTRUCTED SUBPOENAED EMPLOYEES NOT TO APPEAR AT THE
HEARING, AND THAT INDUSTRIAL RELATIONS OFFICER ANDY JAMES DENIED
OFFICIAL TIME TO WITNESSES, IN VIOLATION OF THE STATUTE. AS TO THE
FIRST INCIDENT, ON OCTOBER 11, 1979, I HAVE FOUND THAT WILSON APPROACHED
STEWARD CULVER AND CHEMIST EMORY AND, IN A TIRADE, UPBRAIDED CULVER FOR
CONDUCTING UNION BUSINESS ON THE JOB AND INSTRUCTED HER TO TELL EMORY
THAT SHE COULD NOT TALK TO HER WITHOUT HIS PERMISSION. EMORY WAS MERELY
EXPLAINING THAT SHE GOT INTO A JAM WITH WILSON, AND HAD BEEN TOLD TO GET
A REPRESENTATIVE. I CONCLUDE THAT WILSON'S CONDUCT DISPARAGED AND
DEMEANED THE UNION IN A MANNER VIOLATIVE OF SECTION 7116(A)(1).
AS TO THE ALLEGED INTERFERENCE WITH SUBPOENAS, I DO NOT FIND THAT
RESPONDENT HAS VIOLATED THE STATUTE. THE SUBPOENAS COMMANDED THE
PRESENCE OF EMPLOYEES AT THE HEARING AT 10:00 A.M. SUPERVISORS LOWE AND
WILSON CALLED A MEETING BECAUSE THEY WERE RECEIVING QUESTIONS AS TO
WHETHER EMPLOYEES SHOULD REPORT TO WORK AT 7:20 A.M. OR GO DIRECTLY FROM
HOME TO THE HEARING. THEY WERE INSTRUCTED TO REPORT TO WORK AND ASSURED
THAT APPROPRIATE ARRANGEMENTS WOULD BE MADE TO ENSURE THEIR TIMELY
ARRIVAL IN THE COURTROOM. ALL WERE IN FACT IN THE COURTROOM ON TIME.
THEY WERE ALSO TOLD THAT THE ORDER OF CASES MIGHT BE CHANGED, IN WHICH
EVENT THEIR PRESENCE IN COURT WOULD NOT BE REQUIRED THAT DAY, THAT THEY
WOULD BE KEPT INFORMED AND SHOULD BE PREPARED FOR THE POSSIBILITY THEY
WOULD WORK ALL DAY.
I SIMPLY FAIL TO UNDERSTAND HOW AN ORDER TO REPORT TO WORK WHICH DID
NOT PREVENT EMPLOYEES UNDER SUBPOENA FROM APPEARING IN COURT AT THE HOUR
SET FORTH IN THE SUBPOENA CAN CONSTITUTE INTERFERENCE WITH THE SUBPOENA
PROCESS. I THEREFORE RECOMMEND DISMISSAL OF THIS ALLEGATION. /10/
SECTION 7131(C) PROVIDES THAT "THE AUTHORITY SHALL DETERMINE WHETHER
ANY EMPLOYEE PARTICIPATING FOR, OR ON BEHALF OF, A LABOR ORGANIZATION IN
ANY PHASE OF PROCEEDINGS BEFORE THE AUTHORITY SHALL BE AUTHORIZED
OFFICIAL TIME FOR SUCH PURPOSE DURING THE TIME THE EMPLOYEE OTHERWISE
WOULD BE IN DUTY STATUS." SECTION 2429.13 OF THE INTERIM RULES AND
REGULATIONS IMPLEMENTS THIS AS FOLLOWS:
IF THE PARTICIPATION OF ANY EMPLOYEE IN ANY PHASE OF ANY PROCESSING
BEFORE THE AUTHORITY,
INCLUDING THE INVESTIGATION OF UNFAIR LABOR PRACTICE CHARGES . . .
AND PARTICIPATION IN
HEARINGS . . . IS DEEMED NECESSARY BY THE AUTHORITY, SUCH EMPLOYEE
SHALL BE GRANTED OFFICIAL
TIME FOR SUCH PARTICIPATION, INCLUDING NECESSARY TRAVEL TIME . . . .
I FIND NO RELEVANT LEGISLATIVE HISTORY EXCEPT, PERHAPS, FOR THE
STATEMENT, WITH RESPECT TO SECTION 7131(C) THAT THE HOUSE DEBATE MADE
CLEAR THAT ANY ACTIVITIES INVOLVING AN "INTERFACE" WITH MANAGEMENT,
INCLUDING PREPARATION FOR SUCH ACTIVITIES, WERE NOT "INTERNAL BUSINESS",
AND THUS COULD BE PERFORMED ON OFFICIAL TIME AS NEGOTIATED BY THE
PARTIES.
PROCEEDING IS DEFINED IN BLACK'S LAW DICTIONARY AS "THE FORM OR
MANNER OF CONDUCTING JURIDICAL BUSINESS BEFORE A COURT OR JUDICIAL
OFFICER. JURIDICAL IN TURN HAS TO DO WITH THE ADMINISTRATION OF JUSTICE
OR OFFICE OF A JUDGE, AND A JURIDICAL DAY IS ONE WHEN COURT IS IN
SESSION. WHETHER CONGRESS IN PROVIDING FOR OFFICIAL TIME FOR "ANY PHASE
OF ANY PROCEEDINGS BEFORE THE AUTHORITY" MEANT TO LIMIT IT TO FORMAL
MATTERS, AS, FOR EXAMPLE HEARINGS IN REPRESENTATION OR UNFAIR LABOR
PRACTICE CASES, OR PRESENTATIONS TO THE IMPASSES PANEL, IS HOWEVER, NOT
FOR ME TO DECIDE. THE AUTHORITY, IN ITS REGULATION, HAS DEFINED THE
PHRASE "ANY PHASE OF ANY PROCEEDING" TO INCLUDE INVESTIGATION OF UNFAIR
LABOR PRACTICE CHARGES AND REPRESENTATION PETITIONS. WHILE IT CAN BE
ARGUED THAT THE ABSENCE OF ANY REFERENCE TO PREPARATION FOR HEARING
INDICATES AN INTENTION NOT TO COVER SUCH MATTERS THE CONSEQUENCES WOULD
BE ANOMALOUS INDEED, FOR INVESTIGATIONS COULD THEN BE CONDUCTED ON
OFFICIAL TIME TO DETERMINE WHETHER A COMPLAINT SHOULD ISSUE, WHEREAS
PREPARATION OF THE PROOF THAT A VIOLATION OCCURRED WOULD BE ON
EMPLOYEES' OWN TIME. I CONCLUDE, THAT THE RULE'S REFERENCE TO "ANY
PHASE OF ANY PROCEEDING BEFORE THE AUTHORITY" ENCOMPASSES PREPARATION
FOR A FORMAL HEARING. THIS READING OF THE RULE WOULD APPEAR TO BE
STRENGTHENED WHERE, AS HERE, OFFICIAL TIME IS REQUESTED DURING A
MID-HEARING RECESS. /11/ THERE REMAINS, HOWEVER, THE ISSUE WHETHER AN
EMPLOYEE'S PARTICIPATION "IS DEEMED NECESSARY BY THE AUTHORITY". THIS
SUGGESTS THAT IT MAY BE NECESSARY FOR AN APPROPRIATE OFFICIAL OF THE
AUTHORITY, AS, E.G., A REGIONAL DIRECTOR, HEARING OFFICER OR
ADMINISTRATIVE LAW JUDGE TO DEEM PARTICIPATION NECESSARY, AND TO SO
INFORM THE ACTIVITY, BEFORE A VIOLATION CAN ARISE FROM NONCOMPLIANCE.
IN PARTICULAR, THE QUESTION ARISES WHETHER COUNSEL FOR THE GENERAL
COUNSEL CAN SIMPLY DECIDE CERTAIN INDIVIDUALS ARE NECESSARY TO THE
PREPARATION OF HIS/HER PROSECUTION, SO INFORM RESPONDENT AND THEREBY SET
THE STAGE FOR A PRIMA FACIE VIOLATION SHOULD OFFICIAL TIME NOT BE MADE
AVAILABLE AT SUCH TIMES AS, AND FOR SO LONG AS, THE GENERAL COUNSEL
DEEMS NECESSARY AND REASONABLE.
THIS IS NOT AN IDLE QUESTION, FOR LEGITIMATE CONTROVERSIES CAN ERUPT
CONCERNING THE USES OF OFFICIAL TIME. THUS, IN THIS MATTER, A
SUBSTANTIAL NUMBER OF THE CHEMISTS IN CODE 134.1 WERE AT THE HEARING
UNDER USBPOENA ON THE FIRST DAY. CASE 3-CA-456, NOT INVOLVING THEM, WAS
THEN PRESENTED FIRST. WHEN THE HEARING WAS RECESSED UPON DELIVERY OF
SUBPOENAED MATERIALS AT MID-DAY, BEFORE ANY OF THEM TESTIFIED, A DISPUTE
AROSE OVER THE GENERAL COUNSEL'S INSTRUCTION THAT ALL SHOULD APPEAR AT
THE COMMENCEMENT OF THE HEARING ON THE FOLLOWING DAY. RESPONDENT
OBJECTED TO WHAT IT CONSIDERED UNNECESSARY DISRUPTION OF ITS LABORATORY.
IN OFF-THE-RECORD DISCUSSION I TOLD COUNSEL THAT IT SHOULD NOT BE
DIFFICULT TO ESTABLISH A MUTUALLY ACCEPTABLE SCHEDULE FOR THE RELEASE OF
WITNESSES WHICH WOULD BOTH ACCOMMODATE TO THE HEARING PROCESS AND
ELIMINATE NEEDLESS INTERFERENCE WITH RESPONDENT'S OPERATIONS. I CITE
THIS ONLY AS AN ILLUSTRATION OF THE FACT THAT DISPUTES WILL OCCUR OVER
APPLICATION OF THE RULE, EVEN GIVEN AN INTENTION SCRUPULOUSLY TO OBEY
IT, AND TO SUGGEST THE NEED FOR AN ORDERLY PROCEDURE FOR THE RESOLUTION
OF SUCH DISPUTES BEFORE THE ULTIMATE STEP OF AN UNFAIR LABOR PRACTICE
PROCEEDING IS TAKEN.
WHETHER THE RULE CALLS FOR A DECISION THAT MCELFRESH AND HUGHES
SHOULD OR SHOULD NOT BE PLACED ON OFFICIAL TIME, OR REQUIRES A DECISION
AT THIS JUNCTURE WHETHER DENIAL OF OFFICIAL TIME TO THEM VIOLATED
SECTION 7116(A)(1) AND (8), THERE IS LACKING HERE ANY EVIDENCE THAT
THEIR PARTICIPATION IN THE PREPARATION OF THE GENERAL COUNSEL'S CASE WAS
NECESSARY. THE RECORD INDICATES ONLY THAT COUNSEL FOR THE GENERAL
COUNSEL REQUESTED THAT THEY BE MADE AVAILABLE TO HIM ON OFFICIAL TIME,
PRESUMABLY TO ASSIST HIM IN CULLING THE SUBPOENAED RECORDS, AND THAT HE
BOTTOMED HIS AUTHORITY TO DO SO ON THE FACT THAT THEY WERE UNDER
SUBPOENA. SURELY HE CANNOT SIMPLY COMMANDEER SUCH ASSISTANCE AS HE
THINKS HE NEEDS FROM RESPONDENT'S STAFF. NOR WOULD CONSIDERATIONS OF
DUE PROCESS APPEAR TO PERMIT A DETERMINATION AS TO NECESSITY MERELY UPON
HIS REPRESENTATION THAT THEY WERE NECESSARY TO HIS TRIAL PREPARATION. I
ACCORDINGLY CONCLUDE THAT, ON THIS RECORD, NO DETERMINATION OF THE NEED
FOR THEIR PARTICIPATION IN THIS PHASE OF THE PROCEEDING CAN BE MADE, AND
RECOMMEND THAT THIS ALLEGATION OF THE COMPLAINT IN CASE 3-CA-456 BE
DISMISSED.
CASE 3-CA-63
FINALLY, THERE IS THE QUESTION WHETHER CAPTAIN KURZENHAUSER'S COLUMN
INTERFERED WITH THE SECTION 7102 RIGHT OF THE SHIPYARD EMPLOYEES . . .
"ASSIST ANY LABOR ORGANIZATION . . . FULLY AND WITHOUT FEAR OF PENALTY
OR REPRISAL . . . ". THE ARTICLE ENCOURAGED EMPLOYEES TO SO CONDUCT
THEMSELVES AS TO REFLECT CREDIT ON THEMSELVES AS SHIPYARD WORKERS. THE
INJUNCTION WAS TO APPLY EVEN TO NON-DUTY CONDUCT, WHENEVER THEIR STATUS
AS SHIPYARD WORKERS WAS KNOWN. THE PHOTOCOPIED EXCERPT FROM THE LOCAL
NEWSPAPER ARTICLE, EMBRACED ON THREE SIDES BY HIS COLUMN, INDICATED THAT
SOME 50 METAL TRADES COUNCIL MEMBERS WOULD PICKET IN COMMON CAUSE WITH
THE STEELWORKERS UNION AT NEWPORT NEWS SHIPYARD. GIVEN THIS
JUXTAPOSITION OF THE REPORT ON PICKETING TO THE BASE COMMANDER'S LECTURE
ON, OR APPEAL FOR, PROPER DEPARTMENT, THE INFERENCE IS NOT ONLY FAIR,
BUT TO ME STRONG, THAT HE LABELED SUCH PICKETING AS YET ANOTHER INSTANCE
OF THE KINDS OF ACTIVITY WHICH BRING SHIPYARD WORKERS INTO PUBLIC
DISREPUTE, AND OF KINDS OF ACTIVITY WHICH BRING SHIPYARD WORKERS INTO
PUBLIC DISREPUTE, AND OF WHICH HE PERSONALLY DISAPPROVED. /12/ IT WAS
THUS AN EFFORT TO DISSUADE EMPLOYEES FROM SUCH SUPPORT OF THE
STEELWORKERS. THE QUESTION REMAINS WHETHER SECTION 7116(E) RENDERS IT A
PERMISSIBLE EXPRESSION OF PERSONAL VIEW OR OPINION SO LONG AS
UNACCOMPANIED BY ANY "THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT
(AND) NOT MADE UNDER COERCIVE CONDITIONS." IN ADDITION, THERE IS THE
QUESTION WHETHER SUCH PICKETING IS A RIGHT PROTECTED BY SECTION 7102.
ADMINISTRATIVE LAW JUDGES DEVANEY AND MASON HAVE REACHED OPPOSITE
RESULTS IN CONSTRUING SECTION 7116(E). /13/ THE FORMER HAS SET FORTH AT
LENGTH THE CONFUSING LEGISLATIVE HISTORY AND I SHALL NOT REPEAT THE
EFFORT. THE TEXT IS PUZZLING. THE HISTORY INDICATES THAT THE SENATE
WISHED TO GRANT MANAGEMENT RATHER MORE LATITUDE IN THE EXPRESSION OF
PERSONAL VIEWS, ARGUMENTS OR OPINIONS THAN THE ASSISTANT SECRETARY HAD
PERMITTED. AT CONFERENCE IT SEEMS THERE WAS SIMULTANEOUSLY AN
ACCEPTANCE OF THE SENATE'S DESIRE NOT TO SO MUZZLE MANAGEMENT AND A
STATEMENT THAT, FOR UNFAIR LABOR PRACTICE PURPOSES, A CODIFICATION OF
THE LAW LAID DOWN BY THE ASSISTANT SECRETARY WAS THE INTENTION. I
SUBSCRIBE TO THE VIEW THAT 7116(E) WAS INTENDED TO PERMIT MANAGEMENT TO
MAKE ONLY THE THREE ENUMERATED KINDS OF STATEMENTS IN ELECTION
SITUATIONS, BUT TO ALLOW IT SOMEWHAT GREATER LATITUDE IN NON-ELECTION
SITUATIONS. WHILE THE PRECISE PARAMETERS OF MANAGEMENT "FREE SPEECH"
WOULD BE MOST DIFFICULT TO DETERMINE, ESPECIALLY AGAINST A BACKDROP OF
DECISIONS UNDER THE ORDER WHICH DID NOT PERMIT THE EXPRESSION OF VIEWS
CONTAINING NEITHER THREAT NOR PROMISE, /14/ I CONCLUDE THAT SECTION
7116(E) PERMITS THE KIND OF EXPRESSION OF A PERSONAL VIEW, ARGUMENT OR
OPINION MADE HERE BY CAPTAIN KURZENHAUSER. /15/ IT CONTAINED NO EXPLICIT
THREAT, AND WAS NOT ATTENDED BY COERCIVE CONDITIONS (WHILE UNFAIR LABOR
PRACTICES HAD OCCURRED, THEY WERE LIMITED TO A CHEMISTRY LAB EMPLOYING
ABOUT A DOZEN OUT OF OVER 12,000 EMPLOYEES). IN GISSEL THE SUPREME
COURT SAID THAT SECTION 8(E) WAS A MERE STATUTORY RECOGNITION OF THE
FIRST AMENDMENT'S REQUIREMENTS: "THUS, AN EMPLOYER IS FREE TO
COMMUNICATE TO HIS EMPLOYEES ANY OF HIS GENERAL VIEWS ABOUT UNIONISM, OR
ANY OF HIS SPECIFIC VIEWS ABOUT A PARTICULAR UNION, SO LONG AS THE
COMMUNICATIONS DO NOT CONTAIN A 'THREAT OF REPRISAL OR FORCE OR PROMISE
OF BENEFIT'." WHILE ONE MIGHT INTERPRET THE COMMANDER'S COLUMN AS A
DIRECTIVE NOT TO PICKET, THAT WOULD BE A MOST TENUOUS CONCLUSION. AT
MOST, HE INFORMED SHIPYARD WORKERS THAT HE WOULD REGARD SUCH PICKETING
WITH DISAPPROVAL, PERHAPS OUT OF COMMITMENT, PERHAPS BECAUSE HE
ANTICIPATED PUBLIC DISAPPROVAL AND A CONSEQUENT PUBLIC RELATIONS BLACK
EYE. I CONCLUDE THAT THE MESSAGE CONVEYED DOES NOT RISE TO THE LEVEL OF
A VIOLATION OF SECTION 7116(A)(1), EVEN ASSUMING THE ACTIVITY FROWNED
UPON CONSTITUTED ASSISTANCE TO A LABOR ORGANIZATION. I THEREFORE NEED
NOT REACH THE LATTER QUESTION, AND I RECOMMEND THAT THE COMPLAINT ON
CASE 3-CA-63 BE DISMISSED.
RECOMMENDATION
HAVING CONCLUDED THAT RESPONDENT VIOLATED SECTIONS 19(A)(1), (2) AND
(4) OF EXECUTIVE ORDER 11491, AND SECTION 7116(A)(1) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, I HEREBY RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO 5 U.S.C. 7135, AND SECTION 2423.29(B)(1) OF THE FINAL
RULES, 45 FED.REG. 3482, THE AUTHORITY HEREBY ORDERS THAT THE NORFOLK
NAVAL SHIPYARD, NORFOLK, VIRGINIA SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO TAKE STRINGENT ACTION AGAINST EMPLOYEES IF LOCAL
1, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS DID NOT CEASE ITS
REPRESENTATIONAL
ACTIVITIES.
(B) INSTRUCTING EMPLOYEES THAT THEY ARE NOT TO COMMUNICATE WITH LOCAL
1, INTERNATIONAL
FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS WITHOUT PERMISSION
FROM THEIR SUPERVISOR.
(C) THREATENING TO MAKE WORKING CONDITIONS MORE BURDENSOME OR ONEROUS
BECAUSE EMPLOYEES
HAVE GIVEN TESTIMONY IN A PRE-COMPLAINT INVESTIGATION.
(D) THREATENING AN OFFICER OF LOCAL 1, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND
TECHNICAL ENGINEERS, THAT HER ELIGIBILITY FOR PROMOTION MADE IT A
GOOD TIME TO INSTRUCT HER ON
HOW PROPERLY TO CARRY OUT HER REPRESENTATIONAL ACTIVITIES.
(E) THREATENING TO WITHHOLD, AND WITHHOLDING, A WITHIN-GRADE
PROMOTION FROM AN OFFICER OF
LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, BECAUSE OF TIME
SPENT ON REPRESENTATIONAL FUNCTIONS OR BECAUSE HE GAVE A STATEMENT TO
AN AGENT OF THE FEDERAL
LABOR RELATIONS AUTHORITY.
(F) SPEAKING TO AN OFFICER OF LOCAL 1, INTERNATIONAL FEDERATION OF
PROFESSIONAL AND
TECHNICAL ENGINEERS, IN THE PRESENCE OF EMPLOYEES, IN AN ABUSIVE,
DISPARAGING AND DEMEANING
MANNER, AND INSTRUCTING HER SHE WAS NOT TO SPEAK TO EMPLOYEES WITHOUT
HER SUPERVISOR'S
PERMISSION.
(G) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, TO FORM, JOIN
AND ASSIST LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL
TECHNICAL ENGINEERS, OR ANY OTHER
LABOR ORGANIZATION, OR VINDICATE SUCH RIGHTS IN ANY PROCEEDINGS
BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT THE NORFOLK NAVAL SHIPYARD COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX C" ON
FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY
THE BASE COMMANDER 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 BASE 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, WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DATED:
WASHINGTON, D.C.
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 THREATEN TO TAKE STRINGENT ACTION AGAINST OUR EMPLOYEES
IF LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, DOES NOT CEASE ITS REPRESENTATIONAL ACTIVITIES IN THEIR
BEHALF.
WE WILL NOT INSTRUCT EMPLOYEES NOT TO COMMUNICATE WITH LOCAL 1,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
WITHOUT HAVING FIRST RECEIVED PERMISSION FROM THEIR SUPERVISOR.
WE WILL NOT THREATEN TO MAKE THE WORKING CONDITIONS OF OUR EMPLOYEES
MORE BURDENSOME AND ONEROUS BECAUSE THEY HAVE EXERCISED THEIR RIGHT TO
GIVE TESTIMONY IN PRECOMPLAINT INVESTIGATIONS.
WE WILL NOT THREATEN TO WITHHOLD PROMOTIONS FROM OFFICIALS OF LOCAL
1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS,
UNLESS AND UNTIL THEY CARRY OUT THE REPRESENTATION OF EMPLOYEES AS THEIR
SUPERVISORS INSTRUCT THEM TO DO SO.
WE WILL NOT THREATEN TO, NOR WILL WE WITHHOLD WITHIN-GRADE PROMOTIONS
FROM OFFICIALS OF LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, BECAUSE OF THEIR ACTIVITIES ON BEHALF OF THAT LABOR
ORGANIZATION, NOR WILL WE DISCRIMINATE AGAINST THEM BECAUSE THEY HAVE
COOPERATED WITH AGENTS OF THE FEDERAL LABOR RELATIONS AUTHORITY IN THE
INVESTIGATION OF UNFAIR LABOR PRACTICE CHARGES.
WE WILL NOT SPEAK TO OFFICIALS OF LOCAL 1, INTERNATIONAL FEDERATION
OF PROFESSIONAL AND TECHNICAL ENGINEERS, IN AN ABUSIVE MANNER WHICH
DISPARAGES AND DEMEANS THAT LABOR ORGANIZATION AND ITS EFFECTIVENESS IN
THE EYES OF EMPLOYEES.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN OR ASSIST LOCAL 1,
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, OR ANY
OTHER LABOR ORGANIZATION, OR TO VINDICATE SUCH RIGHTS IN PROCEEDINGS
BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY.
(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, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1133 15TH STREET, NW., SUITE 300, WASHINGTON, D.C. 20005.
--------------- FOOTNOTES$ ---------------
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), CASE NOS. 3-CA-20 AND 3-CA-21 ARE 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 WITH RESPECT TO THE FOREGOING
CASES DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR APPLICATION
OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH WOULD HAVE
BEEN REACHED BY THE AUTHORITY IF THE CASES HAD ARISEN UNDER THE STATUTE
RATHER THAN THE EXECUTIVE ORDER.
/2/ THE AUTHORITY'S INTERIM RULES AND REGULATIONS (44 F.R. 44740 ET
SEQ.(1979) WERE IN EFFECT WHEN THE ALLEGED UNFAIR LABOR PRACTICE
OCCURRED. SECTION 2429.13 (44 F.R. 44771) PROVIDED:
SEC. 2429.13 OFFICIAL TIME.
IF THE PARTICIPATION OF ANY EMPLOYEE IN ANY PHASE OF ANY PROCEEDING
BEFORE THE AUTHORITY,
INCLUDING THE INVESTIGATION OF UNFAIR LABOR PRACTICE CHARGES AND
REPRESENTATION PETITIONS AND
THE PARTICIPATION IN HEARINGS AND REPRESENTATION ELECTIONS, IS DEEMED
NECESSARY BY THE
AUTHORITY, SUCH EMPLOYEE SHALL BE GRANTED OFFICIAL TIME FOR SUCH
PARTICIPATION, INCLUDING
NECESSARY TRAVEL TIME, AS OCCURS DURING THE EMPLOYEE'S REGULAR WORK
HOURS AND WHEN THE
EMPLOYEE WOULD OTHERWISE BE IN WORK OR PAID LEAVE STATUS. IN
ADDITION, NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES SHALL BE PAID BY THE EMPLOYING
ACTIVITY OR AGENCY.
/3/ SECTION 2429.13 OF THE AUTHORITY'S RULES AND REGULATIONS WAS
SUBSEQUENTLY REVISED (5 CFR 2429.13(1980) TO PROVIDE THAT ANY EMPLOYEE
PARTICIPATING IN ANY PHASE OF ANY PROCEEDING BEFORE THE AUTHORITY SHALL
BE GRANTED OFFICIAL TIME FOR SUCH PARTICIPATION IF DEEMED NECESSARY "BY
THE AUTHORITY, THE GENERAL COUNSEL, ANY ADMINISTRATIVE LAW JUDGE,
REGIONAL DIRECTOR, HEARING OFFICER, OR OTHER AGENT OF THE AUTHORITY
DESIGNATED BY THE AUTHORITY . . . ." THE AUTHORITY'S ACCOMPANYING
EXPLANATION (45 F.R. 3486(1980) INDICATES THAT THE FOREGOING REVISION
WAS INTENDED "TO MAKE IT CLEAR THAT DETERMINATIONS THAT THE
PARTICIPATION OF AN EMPLOYEE IN A PARTICULAR PHASE OF A PROCEEDING
BEFORE THE AUTHORITY IS NECESSARY MAY BE MADE BY THE AUTHORITY, THE
GENERAL COUNSEL, ANY ADMINISTRATIVE LAW JUDGE, REGIONAL DIRECTOR,
HEARING OFFICER OR OTHER DESIGNATED AGENT OF THE AUTHORITY." THUS, THE
AUTHORITY'S FINAL RULES AND REGULATIONS WERE INTENDED TO CLARIFY RATHER
THAN MODIFY THE INTERIM REGULATIONS IN THIS REGARD.
/4/ AT SOMETIME WILSON EXPRESSED TO STEWARD JOANNA CULVER HIS BELIEF
THAT THE UNION WAS THE CAUSE OF FIRE AND SAFETY INSPECTIONS AND WAS "OUT
TO GET HIM". SAUL LOWE, WHILE DENYING THAT WILSON BELIEVED THAT THE
UNION WAS BEHIND SABOTAGE HE BELIEVED WAS OCCURRING IN THE LABORATORY,
ADMITTED THAT WILSON EXPRESSED THE VIEW THAT THE UNION WAS OUT TO GET
HIM.
/5/ THIS WITHDRAWAL OCCURRED AFTER SEVERAL MEETINGS, IN WHICH THE
UNION ADVISED THAT IT HAD SIGNED STATEMENTS FROM CHEMISTS WHO HAD
WITNESSED THE HUGHES-- WILSON ENCOUNTER. THIS PROVOKED WILSON ANGRILY
TO STATE THAT HE WOULD "DEAL WITH" EMPLOYEES WHO SIGNED FALSE
STATEMENTS. IT IS EVIDENT, AS WILSON CONCEDED, THAT HE WAS ORDERED TO
"RESCIND" HIS LETTER OF REPRIMAND.
/6/ I DO NOT CREDIT WILSON'S STATEMENT THAT THIS WAS A NEW JOB. WERE
THAT THE CASE, THERE WOULD HAVE BEEN NO OCCASION TO EXPLAIN HIS
ASSIGNMENT ON THE BASIS OF THIS POLICY. EQUITABLE DISTRIBUTION WOULD
HAVE DICTATED THE SELECTION OF LEE WILSON.
/7/ THERE WAS MUCH DISPUTE AS TO WHETHER CULVER WAS PROMISED THE WORK
AND WHEN THE WORK ORDER WAS CALLED IN. I DO NOT RESOLVE IT BECAUSE ONLY
THE ALLEGED UNILATERAL CHANGE IN ASSIGNING OVERTIME IS BEFORE ME.
WILSON TESTIFIED THAT HE TOLD CULVER, IN AN EFFORT TO CORRECT HER
MISUNDERSTANDING, THAT HE TRIED TO MAKE AN EQUITABLE DISTRIBUTION OF
OVERTIME, THAT LEE WILSON HAD RECEIVED ONLY 2 1/2 HOURS OF OVERTIME THAT
YEAR AS OPPOSED TO HER 200 HOURS, THAT SHE HAD WORKED 16 HOURS THE DAY
BEFORE, AND THAT HE AVOIDS SUCCESSIVE 16 HOUR DAYS IF POSSIBLE. THUS,
THOUGH HE SUBORDINATES THE LATTER FACTOR TO CONSIDERATIONS OF EQUAL
DISTRIBUTION, BOTH AGREE IT WAS RELIED UPON IN DEFENSE OF THE REFUSAL TO
ASSIGN HER THE JOB.
/8/ I FIND NO VIOLATION OF SECTION 19(A)(4) BASED UPON THREATS ALONE,
AS IT ENCOMPASSES DISCRIMINATORY ACTION.
/9/ ABSENT THIS RESOLUTION, I WOULD RECOMMEND DISMISSAL OF THIS
ALLEGATION PURSUANT TO SECTION 7116(D) BECAUSE AN IRREVOCABLE ELECTION
WAS MADE WHEN CULVER GRIEVED. I AM AWARE THAT A DISTINCTION IS TO BE
DRAWN BETWEEN A UNION'S OR AN INDIVIDUAL'S EFFORT TO INDICATE STATUTORY
RIGHTS AND A PARALLEL PROCEEDING TO SECURE CONTRACT RIGHTS. ESPECIALLY
WHERE DIFFERENT PARTIES PURSUE DISCRETE INTERESTS, PRECLUSION SHOULD NOT
OCCUR. SEE DOD DEPENDENT SCHOOLS, 1 FLRA 15, FOOTNOTE 7. WHILE A UNION
OFFICIAL AND A UNION MAY HAVE DISPARATE INTERESTS, SO THAT ACTION BY THE
ONE SHOULD NOT IMPACT ON THE OTHER'S RIGHTS, HERE THERE IS IN FACT, NO
SUGGESTION THAT THE STEWARD AND THE UNION WHICH REPRESENTS HER IN THE
GRIEVANCE DO NOT HAVE A COMMON PURPOSE. THUS, THERE EXISTS AN IDENTITY
OF INTEREST BETWEEN THE UNION-COMPLAINANT AND THE STEWARD-GRIEVANT AND
AN IDENTITY OF RELIEF SOUGHT IN THAT THE GRIEVANCE, LIKE THE UNFAIR
LABOR PRACTICE CHARGE, SEEKS RESPONDENT'S COMPLIANCE WITH THE CONTRACT
AS RESPECTS OVERTIME ASSIGNMENTS IN THE UNIT. IN SUCH CIRCUMSTANCES, TO
PERMIT LITIGATION OF THE ISSUE IN BOTH FORUMS, WITH POTENTIALLY
CONFLICTING RESULTS, IS TO INVITE WHAT SECTION 7116(D) WAS DESIGNED TO
AVOID. CF. EEOC, 6 A/SLMR 485.
/10/ THERE IS SOME SUGGESTION, PARTICULARLY FROM RESPONDENT'S BRIEF,
THAT THE ALLEGED INTERFERENCE IS GROUNDED ON THE FACT THAT THE ORDER TO
REPORT TO WORK CONFLICTED WITH COUNSEL FOR THE GENERAL COUNSEL'S
INSTRUCTION THAT THE EMPLOYEES REPORT TO HIS MOTEL THAT MORNING. ON
THIS RECORD THERE IS NO EVIDENCE THAT SUCH WAS THE CASE. IF IT WERE, IT
WOULD RAISE ISSUES, NOT ALLEGED, REGARDING OFFICIAL TIME. IT WOULD NOT
FORTIFY THE CONTENTION THAT UNLAWFUL INTERFERENCE WITH THE SUBPOENA
PROCESS OCCURRED.
/11/ CF. SECTION 206.7(G) OF THE ASSISTANT SECRETARY'S RULES AND
REGULATIONS, WHICH PROVIDED FOR OFFICIAL TIME WHILE AN EMPLOYEE EITHER
GAVE TESTIMONY ON WAS WAITING TO GIVE TESTIMONY. SEE ALSO, FOR A
DISCUSSION OF PAYMENT TO AN EMPLOYEE WHILE ACCOMPANYING AN OSHA
INSPECTORS ON A PLANT VISIT, MARSHALL V. OHIO BELL TELEPHONE, USDC,
OHIO, DLR NO. 91.
/12/ IT MAY BE ARGUED THAT THE COMMANDER MEANT ONLY TO ENCOURAGE
THOSE WHO DID PICKET TO DO SO WITH DIGNITY. I FIND HIS DISAPPROBATION
WAS AIMED AT THE VERY ACT OF PICKETING.
/13/ SEE OKLAHOMA CITY AIR LOGISTICS CENTER, CASE NO. 6-CA-175 AND
DOA, FORT BRAGG SCHOOLS, CASE NOS. 4-CA-148-152.
/14/ SEE, E.G., VA HOSPITAL, SHREVEPORT, LA., 1 FLRA NO. 48.
/15/ ON THE CORRESPONDING PROVISION OF THE NLRA (8(C)), SEE NLRB V.
GISSELL PACKING CO., 395 U.S. 575, 616-20(1969); NLRB V. THREADS, INC.,
308 F.2D 1, 8 AND 9 (4 CCA, 1962).