09:0060(10)CA - Navy, Puget Sound Naval Shipyard, Bremerton, WA and Federal Employees MTC -- 1982 FLRAdec CA
[ v09 p60 ]
09:0060(10)CA
The decision of the Authority follows:
9 FLRA No. 10
DEPARTMENT OF THE NAVY
PUGET SOUND NAVAL SHIPYARD
BREMERTON, WASHINGTON
Respondent
and
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case Nos. 9-CA-750
9-CA-762
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT RESPONDENT HAD NOT
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND
(2) OF THE STATUTE AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED. NO
EXCEPTIONS WERE FILED BY EITHER PARTY.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CONSOLIDATED CASES, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS,
THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT IN CASE NOS.
9-CA-750 AND 9-CA-762 BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JUNE 11, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
A. S. CALCAGNO, ESQ.
FOR THE RESPONDENT
STEPHANIE ARTHUR, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
CASE NOS. 9-CA-750
9-CA-762
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
OF UNFAIR LABOR PRACTICE CHARGES FILED NOVEMBER 10 AND NOVEMBER 17,
1980, WITH THE FEDERAL LABOR RELATIONS AUTHORITY. AMENDED CHARGES WERE
FILED ON JANUARY 23, 1981, AND CONSEQUENTLY, ON JANUARY 28, 1981, THE
REGIONAL DIRECTOR OF THE AUTHORITY ISSUED AN ORDER CONSOLIDATING THE TWO
CASES, A COMPLAINT AND A NOTICE OF HEARING. THE CONSOLIDATED COMPLAINT
ALLEGES THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1) AND (2) OF THE
STATUTE WHEN, (1) ON OCTOBER 28, 1980, IT ISSUED UNIT EMPLOYEE RICHARD
SLOVER A LETTER OF CAUTION; (2) ON OCTOBER 29, 1980, IT TERMINATED MR.
SLOVER BECAUSE HE HAD ENGAGED IN PROTECTED ACTIVITIES; AND (3) ON
OCTOBER 29, 1980, IT TERMINATED UNIT EMPLOYEE JAMES BANASIAK BECAUSE HE
SOUGHT THE ASSISTANCE OF A UNION REPRESENTATIVE IN PRESENTING A
GRIEVANCE. RESPONDENT DENIES THE ALLEGATIONS AND CONTENDS THAT THE
ACTIONS TAKEN AGAINST THE TWO EMPLOYEES WERE THE CULMINATION OF A LONG
HISTORY OF UNSATISFACTORY BEHAVIOR AND WORK PERFORMANCE.
A HEARING WAS HELD ON MARCH 26 AND 27, 1981, IN BREMERTON,
WASHINGTON. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE
WITNESSES AND TO INTRODUCE EVIDENCE. POST HEARING BRIEFS HAVE BEEN
FILED AND CONSIDERED. UPON THE ENTIRE RECORD, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS, AND RECOMMENDATION:
FINDINGS OF FACT
BACKGROUND
THE MESSENGER SECTION, CORRESPONDENCE BRANCH, ADMINISTRATIVE SERVICES
DIVISION, ADMINISTRATIVE DEPARTMENT OF RESPONDENT ACTIVITY IS ASSIGNED
THE SORTING AND DELIVERING OF ALL MAIL WITHIN THE ACTIVITY, INCLUDING
SORTING AND DELIVERY OF MAIL BY MOTOR VEHICLE MESSENGER SERVICE TO ALL
ACTIVITY SHOPS AND OFFICES. FAILURE TO PROCESS THE MAIL CORRECTLY AND
IN A TIMELY MANNER CAN DIRECTLY AFFECT THE ACTIVITY'S PRODUCTIVE
EFFORTS. DELAYS AND ERRORS ARE NOTICED IMMEDIATELY AND TRIGGER
COMPLAINTS FROM VARIOUS LEVELS IN OTHER ACTIVITY ORGANIZATIONAL UNITS.
AT BEST, WORKING CONDITIONS IN THE MESSENGER SECTION ARE DIFFICULT
AND PRESENT SPECIAL SUPERVISORY CONTROL PROBLEMS. SINCE TIMELY DELIVERY
OF THE MAIL IS CRITICAL, EMPLOYEES IN THE MESSENGER SECTION WORK IN A
PRESSURE COOKER ATMOSPHERE WHERE SPEED AND ACCURACY ARE EXPECTED WHILE
THEY WORK INDOORS IN CRAMPED CONDITIONS. OUTDOOR WORK MUST BE PERFORMED
REGARDLESS OF WEATHER CONDITIONS.
THE WORKFORCE IS MADE UP PRIMARILY OF VETERAN'S READJUSTMENT
APPOINTMENTS. AS THE NAME IMPLIES, THESE APPOINTMENTS ARE MADE FOR THE
PURPOSE OF READJUSTING VETERANS TO CIVILIAN EMPLOYMENT AND, AS A RESULT,
ACTION TO TERMINATE AN EMPLOYEE BECAUSE OF POOR PERFORMANCE OR CONDUCT
IS NOT TAKEN AS SOON AS IT MIGHT BE WITH OTHER NEW EMPLOYEES. THE
EMPLOYEES TEND TO BE SOMEWHAT OLDER AND THE PAY IS VERY LOW. WORKING IN
THE MESSENGER SECTION GIVES THEM THE OPPORTUNITY TO ADJUST AND IS
GENERALLY SEEN AS A STEPPING STONE TO OTHER HIGHER PAYING JOBS. THE
SECTION IS ALSO A TEMPORARY REPOSITORY FOR REGULAR EMPLOYEES WHO, FOR
VARIOUS REASONS SUCH AS INJURY, CANNOT CONTINUE TO PERFORM MORE ARDUOUS
DUTIES.
THE VEHICLE DELIVERY SERVICE IS ACCOMPLISHED BY USING TWO VANS. THE
LARGER ONE IS DRIVEN BY AN EMPLOYEE FROM THE TRANSPORTATION SHOP, PUBLIC
WORKS DEPARTMENT OF RESPONDENT ACTIVITY. THE LARGER VAN MAKES
APPROXIMATELY 100 STOPS COVERING 35 TO 40 BUILDINGS ONCE EACH MORNING
AND ONCE EACH AFTERNOON. THE MAIL DELIVERED AND SORTED INCLUDES ALL
UNITED STATES MAIL, INTERNAL MAIL, AND BOXES OF COMPUTER PRINTOUTS. IT
IS PARTICULARLY IMPORTANT THAT THE LARGER VAN COMPLETE ITS ROUNDS
BECAUSE IT PROVIDES SERVICE TO THE PRODUCTION SHOPS. COMPLETION OF THE
ROUTE IS REFERRED TO AS "GOING OVER THE HILL" AND ALL EMPLOYEES INVOLVED
ARE INSTRUCTED THAT THEY ARE TO INFORM THE SECTION SUPERVISORY
IMMEDIATELY BY TELEPHONE IF THEY ARE NOT GOING TO MAKE IT "OVER THE
HILL". ON SOME MONDAYS AND SOME HEAVY THURSDAYS THE VAN DOES NOT MAKE
IT.
IN ACCORDANCE WITH ARTICLE FIVE OF THE PARTIES' NEGOTIATED AGREEMENT,
UNION STEWARDS ARE ASSIGNED BY AREA AND RESPONDENT HAS THE RIGHT TO
RESTRICT THOSE STEWARDS TO THOSE AREAS. THE UNION PERIODICALLY INFORMS
RESPONDENT WHO THE STEWARDS ARE AND RESPONDENT, IN TURN, POSTS THE
INFORMATION ON BULLETIN BOARDS. IN THOSE CASES WHERE THERE IS NO
STEWARD FOR AN AREA, THE SUPERVISOR MAKES ARRANGEMENTS FOR THE EMPLOYEE
TO SEE A STEWARD WHO HAS BEEN DESIGNATED BY THE CHIEF STEWARD. THIS IS
GENERALLY THE STEWARD LOCATED CLOSEST TO THE WORKSITE OF THE EMPLOYEE.
RICHARD SLOVER
RICHARD SLOVER BEGAN EMPLOYMENT IN THE MESSENGER SECTION IN FEBRUARY
1980 AS A CAREER-CONDITIONAL VETERAN'S READJUSTMENT ACT APPOINTMENT. AS
IS THE CASE WITH SUCH NEW EMPLOYEES, HE WAS ASSIGNED TO WORK WITH A MORE
EXPERIENCED EMPLOYEE TO LEARN THE CODING SYSTEM, SORTING, AND THE
BUILDING MAIL RUNS. AT THE END OF THREE WEEKS, HE WAS NOT DEMONSTRATING
THE PROGRESS NORMALLY EXPECTED OF A NEW EMPLOYEE AND LOREE "REE" BAYNE,
THE SECTION SUPERVISOR, BROUGHT HIS SPECIFIC PERFORMANCE DEFICIENCIES TO
HIS ATTENTION. SHE DISCUSSED HIS SORTING ERRORS AND INFORMED HIM THAT
HE COULD NOT STOP SORTING FOR UP TO 15 MINUTES WHILE HE TALKED. SHE
INFORMED HER SUPERVISOR, JAN HUGHES, OF THIS DISCUSSION AND, THEREAFTER,
SHE DISCUSSED HIS PERFORMANCE PROBLEMS WITH MS. HUGHES ON A FREQUENT
BASIS. SINCE HIS PERFORMANCE DID NOT IMPROVE AFTER THE INITIAL
DISCUSSION, MS. BAYNE INFORMED MS. HUGHES THAT SHE THOUGHT SHE WOULD TRY
MR. SLOVER ON THE BIG VAN SINCE SHE HAD HAD SUCCESS IN OTHER PROBLEM
CASES WHEN MEN WERE MOVED FROM INSIDE TO OUTSIDE WORK. HOWEVER, AFTER
THREE WEEKS ON THE VAN, MR. SLOVER WAS STILL HAVING HIS PROBLEMS WITH
MEMORIZING CODES AND SORTING MAIL. HE TOLD MS. BAYNE THAT HE HAD A
PERSONAL PROBLEM AND SHE SUGGESTED THAT, LIKE OTHER VETERAN'S
REHABILITATION APPOINTEES, HE MAKE AN APPOINTMENT FOR COUNSELING SERVICE
AT RESPONDENT'S FACILITY. HE SAID THAT HE HAD STUDIED PSYCHIATRY AND
KNEW MORE THAN THE COUNSELOR. RAISING HIS VOICE, HE ACCUSED MS. BAYNE
OF PICKING ON HIM. SHE TOLD HIM THAT SHE WANTED HIM TO APPLY HIMSELF
AND LEARN THE CODES WITHIN THE NEXT TWO WEEKS.
WHILE ON THE VAN, MR. SLOVER CONTINUED TO MAKE ERRORS IN SORTING AND,
ON A DAILY OR TWICE DAILY BASIS, WOULD LEAVE BEHIND THREE OR FOUR LARGE
BAGS OF MAIL. THE PRODUCTION AREAS BEGAN TO COMPLAIN DAILY ABOUT ERRORS
IN MAIL DELIVERY. ALTHOUGH OTHER EMPLOYEES MADE OCCASIONAL ERRORS, MR.
SLOVER'S ERROR RATE WAS EXCEPTIONAL. NOTWITHSTANDING, IN THE SUMMER MS.
BAYNE DECIDED TO PUT HIM IN CHARGE OF THE VAN IN ORDER TO BOLSTER HIS
CONFIDENCE. APPARENTLY HER DECISION HAD INITIAL SUCCESS BECAUSE SHE DID
NOT RECEIVE COMPLAINT CALLS FOR TWO DAYS AT A TIME AND SHE COMPLIMENTED
MR. SLOVER ON THE REDUCTION OF COMPLAINTS. /1/ AT THIS TIME, JAMES
BANASIAK WAS ASSIGNED TO THE VAN AND RAYMOND LEE WAS ASSIGNED FROM THE
TRANSPORTATION SHOP TO BE THE DRIVER. SHORTLY THEREAFTER, LESTER
CHRISTIANSEN WAS ASSIGNED TO THE VAN.
ONE WEEK AFTER MR. SLOVER WAS PUT IN CHARGE OF THE VAN, MS. BAYNE
AGAIN BEGAN TO RECEIVE COMPLAINTS ON MAIL DELIVERY AND FOUND THAT THE
VAN WAS NOT COMPLETING ITS FULL RUN. MISDELIVERY OF MAIL TO THE
WATERFRONT OCCURRED BECAUSE AS SHIPS PROGRESSED THROUGH REPAIRS, THE
CODES CONSTANTLY CHANGED AND THIS REQUIRED SPOT CHECKING OF THOSE CODES.
MS. BAYNE ASKED MR. SLOVER ABOUT THESE PROBLEMS. HE RESPONDED BY
WAVING HIS ARMS AND SHOUTING AT HER THAT HE DID NOT HAVE TIME TO SPOT
CHECK THE CODES AND THAT THE ERRORS OCCURRED IN THE MAILROOM AND NOT IN
THE VAN. /2/ MR. SLOVER THEN YELLED TO MR. BANASIAK THAT MS. BAYNE
WANTED THEM TO SPOT CHECK THE CODES. MR. BANASIAK CAME OVER TO HER DESK
AND HE AND MR. SLOVER THEN SCREAMED AT HER THAT SHE HAD NO RIGHT TO GIVE
THEM SUCH AN ORDER. AT THAT TIME, ANOTHER EMPLOYEE CAME OVER AND TOLD
THEM THAT HE HAD BEEN ON THE VAN FOR A YEAR AND THAT, FOR A NUMBER OF
REASONS, HE WOULD BE REQUIRED TO SPOT CHECK THE CODES AND THAT THEY
SHOULD ALSO DO IT. HOWEVER, NEITHER BEGAN TO SPOT CHECK.
MS. BAYNE WAS STILL CONCERNED THAT THE VAN WAS NOT MAKING IT "OVER
THE HILL". UPON INQUIRING OF OTHER EMPLOYEES WHO WORKED ON THE VAN, SHE
DISCOVERED THAT MR. SLOVER, MR. BANASIAK, AND MR. LEE WERE ATTEMPTING TO
ENLIST PEOPLE TO ATTEND A RALLY FOR THE AMERICAN HOSTAGES IN IRAN. THEY
WERE PASSING OUT LITERATURE AND ENGAGING IN CONVERSATIONS OF 20 TO 30
MINUTES DURING WORKING HOURS. IN EARLY SEPTEMBER, MR. SLOVER WAS
SUMMONED TO TALK TO MS. BAYNE AND MS. HUGHES ABOUT THESE ACTIVITIES.
AS A RESULT OF THIS DISCUSSION AND THE RECOMMENDATION OF THE INDUSTRIAL
RELATIONS OFFICE, MS. HUGHES AND MS. BAYNE DECIDED TO TAKE MR. SLOVER
OFF THE VAN. MR. SLOVER THEN REQUESTED A MEETING WITH A UNION
REPRESENTATIVE TO DISCUSS HIS BEING TAKEN OFF THE VAN. /3/ SUCH A
MEETING WAS HELD IN MS. HUGHES' OFFICE WITH UNION REPRESENTATIVES
PRESENT. ALTHOUGH MR. SLOVER WAS NOT RETURNED TO THE VAN, A COOLING OFF
PERIOD FOR A WEEK WAS SUGGESTED BY THE UNION'S CHIEF STEWARD. HIS
SUGGESTION WAS TAKEN AND THINGS WERE QUIET FOR THE NEXT WEEK.
SOON THEREAFTER, MR. SLOVER RAN INTO FURTHER DIFFICULTIES ON A
CONTINUAL BASIS. HE GOT INTO ARGUMENTS WITH OTHER EMPLOYEES. HIS
SORTING WAS DEFICIENT. HE WAS ABSENT FROM THE WORKPLACE. HE DID NOT
DELIVER SOME PACKAGES ON A DUMB WAITER AND, WHEN ASKED TO DO SO A SECOND
TIME, WAITED 18 MINUTES BEFORE COMPLYING. HE BECAME THE OBJECT OF OTHER
EMPLOYEES' COMPLAINTS. HE LEFT EARLY FOR LUNCH. HE STOPPED SORTING 10
MINUTES BEFORE QUITTING TIME. THIS LATTER INCIDENT PROMPTED ANOTHER
MEETING IN MS. HUGHES' OFFICE. MR. SLOVER ASKED FOR AND WAS GRANTED
UNION REPRESENTATION FOR THAT MEETING. ALTHOUGH MS. BAYNE RECOMMENDED A
LETTER OF CAUTION, MR. HUGHES SAID THAT IF HE STRAIGHTENED OUT, NONE
WOULD ISSUE, AND NONE DID. MR. SLOVER EXPRESSED CONCERN TO HIS UNION
REPRESENTATIVE THAT MS. BAYNE MIGHT HOLD HIM BACK BECAUSE OF THIS
INCIDENT. SHE ASSURED HIM THAT, AS SHE HAD DONE IN SIMILAR CASES, IF HE
DID HIS JOB, MS. BAYNE WOULD NOT LIE AND WOULD NOT HOLD HIM BACK. /4/
THE PRACTICE IN THE MAILROOM HAS BEEN FOR THE MESSENGERS TO SHARE THE
WORK EQUALLY AND TO WRITE THEIR NAMES ON A GLASS COVERED SCHEDULE
INDICATING WHICH FLOOR RUNS THEY WERE GOING TO COMPLETE. ON THE MORNING
FOLLOWING THE MEETING IN MS. HUGHES' OFFICE, MR. SLOVER WROTE HIS NAME
IN FOR EVERY RUN. THIS CAUSED DISRUPTION AMONG THE WORK FORCE AND LED
TO AN ALTERCATION BETWEEN MR. SLOVER AND ANOTHER EMPLOYEE DURING WHICH
HE STATED TO THAT EMPLOYEE (REFERENCING MS. BAYNE), "I'M NOT OUT TO GET
YOU. IF I WANT TO GET ANYONE, IT'S HER." /5/
ON OCTOBER 28, 1980, MS. BAYNE CALLED MR. SLOVER INTO MS. HUGHES'
OFFICE WHERE SHE ATTEMPTED TO GIVE HIM A "LETTER OF CAUTION AND
REQUIREMENT" FOR ABSENCE FROM THE WORKPLACE, INATTENTION TO DUTY AND
CARELESS WORK PERFORMANCE. HE BECAME EXTREMELY UPSET, REFUSED TO ACCEPT
THE LETTER, AND GRAPHICALLY DESCRIBED WHERE HE THOUGHT THE LETTER SHOULD
BE SHOVED. HE THEN DEMANDED A UNION REPRESENTATIVE AND STORMED OUT OF
THE OFFICE. SINCE THE FLOOR WAS WITHOUT A DESIGNATED STEWARD AT THAT
TIME, MS. BAYNE CALLED THE CHIEF STEWARD, DUANE MILLER. WHILE SHE WAS
WAITING FOR HIM TO RETURN HER CALL, MR. SLOVER RETURNED SHOUTING FOR
UNION REPRESENTATION. MS. BAYNE TOLD HIM THAT SHE WOULD GET BACK TO HIM
AFTER MR. MILLER CALLED. MR. SLOVER SLAMMED THE DOOR AND LEFT.
AFTER HEARING FROM THE CHIEF STEWARD, MS. BAYNE GAVE MR. SLOVER A
NOTE CONTAINING THE NAME AND PHONE NUMBER OF ROSEMARY BROWN, THE
STEWARD
ASSIGNED TO REPRESENT HIM. MR. SLOVER BEGAN TO POUND MS. BAYNE'S DESK
AND BEGAN A TORRENT OF VERBAL ABUSE DURING WHICH HE SWUNG HIS ARMS AND
CALLED HER, AMONG OTHER THINGS, A "FUCKING BITCH". BELIEVING HIM TO BE
OUT OF CONTROL, MS. BAYNE WENT TO MS. HUGHES' OFFICE AND TOLD HER TO
CALL THE POLICE. MS. HUGHES WENT BACK TO THE MAILROOM WHERE MR. SLOVER
HAD, IN THE MEANTIME, DAMAGED A HEAVY MAIL BASKET. SHE ASKED HIM TO
CALM DOWN. AS A RESULT OF THIS INCIDENT MS. BAYNE ASKED TO HAVE HIS
EMPLOYMENT TERMINATED.
BASED ON HER PERSONAL EFFORTS TO GIVE MR. SLOVER EVERY CHANCE TO
IMPROVE HIS PERFORMANCE AND CONDUCT, AND THE CULMINATION OF THAT EFFORT
WHICH SHE PERCEIVED TO BE MR. SLOVER'S REFUSAL TO ACCEPT THE LETTER OF
CAUTION AND HIS EXHORTATION TO "SHOVE IT", MS. HUGHES RECOMMENDED TO
GWEN F. BROWN, HEAD OF THE ADMINISTRATIVE SERVICES DIVISION, THAT MR.
SLOVER'S EMPLOYMENT BE TERMINATED. THE ACTUAL DECISION TO TERMINATE HIS
EMPLOYMENT WAS MADE BY MS. BROWN BASED ON THE RECOMMENDATIONS OF MS.
HUGHES AND MS. BAYNE AND THEIR CONTINUAL REPORTS TO HER OF MR. SLOVER'S
EMPLOYMENT DEFICIENCIES.
ON THE MORNING OF OCTOBER 29, 1980, ROSEMARY BROWN MET WITH MR.
SLOVER PURSUANT TO AN APPOINTMENT PROPERLY MADE THROUGH SUPERVISORS. AT
THAT TIME SHE DID NOT KNOW THAT A DECISION TO TERMINATE MR. SLOVER HAD
BEEN MADE AND SHE MADE ARRANGEMENTS TO RETURN IN THE AFTERNOON TO
INVESTIGATE THE MATTER FURTHER. HOWEVER, SHE HAD ASKED FOR A MEETING,
OR WAS SUMMONED TO A MEETING IN GWEN BROWN'S OFFICE, TO DISCUSS MR.
SLOVER. SHE WAS NOTIFIED THAT THE MEETING WOULD TAKE PLACE THAT
AFTERNOON. IN ATTENDANCE AT THAT MEETING WERE ROSEMARY BROWN, CHIEF
STEWARD MILLER, MR. SLOVER, MR. BANASIAK, GWEN BROWN, MS. HUGHES, AND
MS. BAYNE. DURING THIS MEETING, TERMINATION NOTICES WERE HANDED TO MR.
SLOVER AND MR. BANASIAK.
JAMES BANASIAK
JAMES BANASIAK BEGAN HIS EMPLOYMENT AT THE PUGET SOUND NAVAL SHIPYARD
ON A TEMPORARY APPOINTMENT WHICH BEGAN MAY 27, 1980. HE WAS HIRED UNDER
THE VETERAN'S REEMPLOYMENT ACT. INITIALLY, HE WAS ASSIGNED TO AN
EXPERIENCED EMPLOYEE IN THE MAILROOM TO LEARN THE WORK WHICH WOULD BE
REQUIRED OF HIM. AT THE END OF THE FIRST TWO WEEKS, MS. BAYNE FOUND
THAT HE WAS NOT LEARNING HOW TO SORT MAIL PROPERLY. SHE ALSO KNEW THAT
HE WAS GETTING ALMOST HOURLY CALLS FROM HIS WIFE DURING WORKING HOURS.
SHE DISCUSSED HIS LESS THAN ADEQUATE PERFORMANCE WITH HIM AND TOLD HIM
TO INFORM HIS WIFE TO RESTRICT HER PHONE CALLS. DURING THESE
DISCUSSIONS WITH MR. BANASIAK, MS. BAYNE LEARNED THAT HE WAS HAVING BAD
MARITAL AND FINANCIAL PROBLEMS. SHE SUGGESTED COUNSELING HELP AND,
ALTHOUGH HE DECLINED THE SUGGESTION AT FIRST, HE LATER CHANGED HIS MIND
AND MS. BAYNE MADE AN APPOINTMENT FOR HIM. IN THE MEANTIME, SHE
DISCUSSED HIS SITUATION WITH MS. HUGHES.
AT ABOUT THE BEGINNING OF SEPTEMBER 1980, MS. BAYNE FOUND NO
IMPROVEMENT IN HIS SORTING AND SHE DECIDED TO TRY HIM ON THE BIG VAN TO
SEE IF THAT KIND OF CHANGE WOULD HELP HIS PERFORMANCE.
WITHIN A WEEK OF HIS ASSIGNMENT TO THE VAN, /6/ MR. BANASIAK BEGAN TO
REACT IN A HOSTILE MANNER AND WOULD SHOUT AT MS. BAYNE WHENEVER HE WAS
GIVEN AN ORDER OR INFORMED THAT HE HAD MADE A MISTAKE OR FORGOT MAIL.
DURING ONE DISCUSSION WITH MS. BAYNE CONCERNING HIS DEFICIENCIES, HE
EXPLAINED THAT HE WAS BEING PRESSURED BY HIS DIVORCE.
MS. BAYNE HAD TO DISCUSS HIS PERFORMANCE WITH HIM ONCE EVERY 10 DAYS.
WHEN ORDERED TO CHANGE A PRACTICE INITIATED ON THE VAN WITHOUT HER
APPROVAL, MR. BANASIAK FAILED TO DO SO. SHE REPORTED HER PROBLEMS WITH
HIM TO MS. HUGHES AT LEAST ONCE A WEEK AND MS. HUGHES, IN TURN,
DISCUSSED THEM WITH GWEN BROWN.
IN EARLY TO MID-OCTOBER, AN INCIDENT OCCURRED WHICH INVOLVED PLAYING
BACKGAMMON ON THE VAN. MR. BANASIAK, MR. CHRISTIANSEN AND WAYNE BRAGGER
WERE THE PLAYERS WHO WERE SEEN FROM THE DENTAL BUILDING WHILE THE VAN
WAS STOPPED FOR SOME 20 MINUTES OR SO. APPARENTLY RAYMOND LEE WAS THE
DRIVER AT THE TIME ALTHOUGH HE WAS NOT A PARTICIPATING PLAYER ON THAT
PARTICULAR DAY. /7/ MR. BRAGGER AND MR. CHRISTIANSEN APOLOGIZED FOR THE
INFRACTION BUT MR. BANASIAK DIDN'T THINK PLAYING THE GAME MADE ANY
DIFFERENCE SINCE THEY WERE DONE FOR THE DAY AND, THEREFORE, HAD NO
REASON TO HURRY BACK.
ON THURSDAY, OCTOBER 23, MR. BANASIAK COMPLAINED TO AN EMPLOYEE, WHO
WAS MONITORING PERFORMANCE ON THE VAN, THAT HE RECEIVED INADEQUATE
TRAINING FROM TERRY BRYANT. THE MONITOR ASKED MR. BANASIAK TO REPEAT
THAT CHARGE TO MS. BAYNE, WHICH HE DID. MR. BANASIAK THEN COMPLAINED
ABOUT AN INCIDENT WITH MR. BRYANT THAT HAD TAKEN PLACE MORE THAN A MONTH
BEFORE. HE BEGAN SCREAMING AND HOLLERING AT MS. BAYNE AND ASKED WHAT
SHE WAS GOING TO DO TO MR. BRYANT. SHE TALKED TO HIM AND SUCCEEDED IN
CALMING HIM DOWN AND SENDING HIM BACK TO WORK. HE RETURNED TO THE VAN
BUT HE WAS STILL UPSET AND DISCUSSED THE INCIDENT WITH MR. CHRISTIANSEN
AND MR. LEE. ON DIRECT EXAMINATION HE WAS ASKED WHAT HE SAID TO MR. LEE
AND HE RESPONDED:
. . . I ALSO GOT TO THE FACT THAT I WAS A LITTLE BIT TIRED OF THE
FACT OR THE WAY REE HAD
BEEN ACTING TOWARDS ME AS AN INDIVIDUAL. I WAS JUST THOROUGHLY UPSET
AND DISGUSTED AT BEING
CALLED A CHILD AND BEING TREATED LIKE ONE.
MR. LEE THEREUPON SUGGESTED THAT MR. BANASIAK RETURNED TO MS. BAYNE
AND ASK TO SEE A UNION STEWARD. MR. LEE HAD RECENTLY BEEN APPOINTED A
UNION STEWARD AND HE TOLD MR. BANASIAK THAT HE WOULD REPRESENT HIM. AT
THE TIME, MR. BANASIAK WAS NOT A MEMBER OF THE UNION BUT MR. LEE GOT HIM
THE APPROPRIATE PAPERWORK AND MR. BANASIAK JOINED THAT AFTERNOON.
UNDER THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES, MR.
LEE HAD NO AUTHORITY TO REPRESENT MR. BANASIAK AS HIS UNION STEWARD.
ON MONDAY MORNING, OCTOBER 27, MR. BANASIAK ASKED MS. BAYNE FOR A
WALKING CHIT TO SEE "A SHOP STEWARD". SHE SAID THAT SHE WOULD MAKE AN
APPOINTMENT FOR HIM TO SEE A STEWARD BUT THAT HE COULD NOT SEE A "SHOP
STEWARD", WHICH TERM SHE TOOK TO MEAN A STEWARD WHO WAS ASSIGNED TO ONE
OF THE VARIOUS SHOPS LOCATED IN THE SHIPYARD. HE DECLINED TO SPECIFY
WHERE HE WISHED TO GO OR WHOM HE WISHED TO SEE. SHE SAID SHE WOULD NOT
GIVE HIM A WALKING CHIT BECAUSE IT WAS MONDAY, THEIR HEAVIEST WORKING
DAY, AND BECAUSE SHE COULD NOT FILL IT OUT WITHOUT THE INFORMATION HE
FAILED TO PROVIDE. SHE OFFERED TO MAKE AN APPOINTMENT FOR HIM TO SEE A
UNION STEWARD BUT HE SAID THAT HE WOULD DO SO HIMSELF. HE THEN WENT TO
MS. HUGHES' OFFICE AND LEFT A MESSAGE WITH MR. LEE'S DISPATCHER.
AT APPROXIMATELY 9:00 THAT MORNING, MR. LEE APPROACHED MS. BAYNE AND
STATED IN AN UGLY TONE THAT HE UNDERSTOOD THAT MR. BANASIAK HAD ASKED TO
SEE HIM. MS. BAYNE INFORMED HIM THAT MR. BANASIAK HAD NOT ASKED TO SEE
HIM AND SHE REFUSED TO CALL MR. BANASIAK BACK TO HER OFFICE, TELLING MR.
LEE THAT IT WAS MONDAY MORNING AND THAT HE KNEW FULL WELL THAT HE WAS
THE WRONG STEWARD AND COULD NOT REPRESENT ANY OF HER PEOPLE.
IN THE AFTERNOON, MR. BANASIAK AND MR. LEE RETURNED TO MS. BAYNE TO
REQUEST A MEETING TO DISCUSS MR. BANASIAK'S COMPLAINT. MS. BAYNE
REITERATED THAT MR. LEE WAS NOT THE APPROPRIATE STEWARD AND THAT HE
COULD ARRANGE A PROPER APPOINTMENT. AT THAT POINT, MS. BAYNE DIRECTED
MR. BANASIAK TO RETURN TO WORK. HE SHOOK HIS HEAD TO INDICATE "NO".
/8/ SHE TOLD HIM TO RETURN TO THE TRUCK AGAIN AND MR. LEE SAID, "DON'T
DO IT." SHE AGAIN TOLD HIM TO GET BACK TO THE TRUCK AND THAT IT WAS A
DIRECT ORDER. HE AGAIN SHOOK HIS HEAD IN THE NEGATIVE. MR. BANASIAK,
WITHOUT AND EXPRESSLY AGAINST MS. BAYNE'S PERMISSION, AND MR. LEE WENT
TO DISCUSS THE MATTER WITH MS. HUGHES. MR. BANASIAK SHORTLY THEREAFTER
LEFT MR. LEE IN MS. HUGHES' OFFICE AND RETURNED TO WORK.
SHORTLY BEFORE THE MEETING IN GWEN BROWN'S OFFICE DURING WHICH
TERMINATION PAPERS WERE PRESENTED TO THE TWO EMPLOYEES, ROSEMARY BROWN
WAS TOLD THAT MR. BANASIAK WAS INVOLVED. SHE SPOKE WITH HIM FOR A FEW
MINUTES BEFORE THE MEETING. MR. BANASIAK'S TERMINATION NOTICE STATED,
"EMPLOYEE HAD POOR WORK PERFORMANCE AND UNCOOPERATIVE ATTITUDE." AT THE
MEETING, MR. BANASIAK AND ROSEMARY BROWN ATTEMPTED TO LEARN MORE
SPECIFIC REASONS FOR HIS TERMINATION. OTHER THAT REFERENCE TO THE
BACKGAMMON INCIDENT, THE RESPONSES WERE GENERAL. ACCORDING TO ROSEMARY
BROWN, GWEN BROWN MADE A COMMENT THAT MR. BANASIAK'S WORK WAS GOOD. /9/
INSUBORDINATION WAS NEVER MENTIONED.
DISCUSSION AND CONCLUSIONS
THE ULTIMATE QUESTION IN THESE CASES IS WHETHER THE ACTIONS TAKEN
AGAINST MR. SLOVER AND MR. BANASIAK WERE MOTIVATED IN ANY RESPECT BY
ANTI-UNION CONSIDERATIONS. THE SHORT ANSWER TO THAT QUESTION IS A
RESOUNDING NO. IN THE FIRST PLACE, THE ULTIMATE DECISION TO TERMINATE
THEIR EMPLOYMENT WAS MADE BY GWEN BROWN. THERE IS NOT THE PROVERBIAL
SCINTILLA OF EVIDENCE THAT HER ACTIONS WERE BASED ON ANY CONSIDERATIONS
OTHER THAN THE RECOMMENDATIONS OF HER SUBORDINATES, MS. HUGHES AND MS.
BAYNE. AND AS TO THOSE TWO SUPERVISORS, THE ONLY DIRECT EVIDENCE OF
ANTI-UNION ANIMUS WAS PRESENTED THROUGH A WITNESS IN WHOSE TESTIMONY I
CAN GIVE NO CREDENCE. ON THE OTHER HAND, EVIDENCE GIVEN BY UNION
STEWARDS, OTHER THAN RAYMOND LEE, INDICATES THAT THE TWO SUPERVISORS IN
QUESTION HAVE, IN THE PAST, BEEN NOTHING BUT COOPERATIVE WITH UNION
OFFICIALS IN THEIR ATTEMPTS TO RESOLVE OTHER ISSUES RAISED IN THE
CONTEXT OF LABOR-MANAGEMENT RELATIONS.
AS FAR AS THE SUBJECT EMPLOYEES THEMSELVES ARE CONCERNED, THERE IS
LITTLE, IF ANY, EVIDENCE TO SHOW THAT THEIR UNION ACTIVITIES WERE KNOWN
TO MANAGEMENT ASIDE FROM THE FACT THAT THEY SOUGHT ASSISTANCE FROM A
COLLEAGUE WHO HAPPENED TO HAVE BEEN APPOINTED AS A UNION STEWARD
CONTEMPORANEOUSLY WITH THEIR EMPLOYMENT DIFFICULTIES. RICHARD SLOVER
WAS FAR FROM A UNION ACTIVIST ALTHOUGH IT WAS CLEAR TO MANAGEMENT THAT
HE WAS A MEMBER OF THE UNION. HIS POLITICAL ACTIVITIES ON BEHALF OF THE
AMERICAN HOSTAGES IN IRAN WERE WELL KNOWN BECAUSE OF THE EXTENT THOSE
ACTIVITIES INTERFERED WITH HIS EMPLOYMENT RESPONSIBILITIES. BUT IT IS
CLEAR THAT HIS POLITICAL CONCERNS ONLY BECAME AN ISSUE TO THE
SUPERVISORS WHEN HIS ACTIVITIES IN THAT REGARD INTERFERED WITH HIS
OFFICIAL DUTIES. MR. BANASIAK BECAME A MEMBER OF THE UNION ONLY AFTER
HIS EMPLOYMENT DIFFICULTIES CAME TO A HEAD. AND EVEN AT THAT POINT, HE
BECAME INVOLVED WITH A UNION STEWARD WHO WAS ACTING OUTSIDE OF HIS
OFFICIAL AUTHORITY. BOTH MR. BANASIAK AND MR. LEE WERE TOLD BY THE TWO
SUPERVISORS THAT MR. LEE HAD NO AUTHORITY TO ACT IN BEHALF OF MR.
BANASIAK AND THE RECORD CAN SUPPORT NO OTHER CONCLUSION. UNDER THESE
CIRCUMSTANCES ONE CANNOT CONCLUDE THAT MR. BANASIAK WAS ENGAGED IN
PROTECTED ACTIVITY WHEN HE AND MR. LEE CONFRONTED MS. BAYNE AND MS.
HUGHES.
AS TO MR. LEE, HE CAN BE DESCRIBED AS NOTHING MORE THAN AN UNGUIDED
MISSILE, LAUNCHED IN AN EFFORT TO ASSIST TWO FRIENDS IN THEIR CAMPAIGN
TO DISCREDIT A COMMON ENEMY. TO QUOTE MR. BANASIAK, HE AND MR. SLOVER
WERE "ALWAYS AT ODDS WITH MS. BAYNE." IT IS CLEAR FROM OTHER TESTIMONY
THAT THEY TOOK PERSONALLY ALL CRITICISM OF THEIR EMPLOYMENT
DEFICIENCIES. NO OBJECTIVE EVIDENCE WAS OFFERED TO BACK UP THEIR CLAIMS
THAT THEY WERE TREATED UNFAIRLY OR THAT THEIR TREATMENT DERIVED FROM
OTHER THAN A CONCERN THAT THEIR DUTIES BE PERFORMED IN A MANNER
CONSISTENT WITH THE BEST INTERESTS OF THE FEDERAL SERVICE.
ON THE OTHER HAND, THE EVIDENCE SHOWS THAT CONDITIONS IN THE
MESSENGER SECTION WERE DIFFICULT AT BEST AND THAT BOTH SUPERVISORS BENT
OVER BACKWARDS IN AN ATTEMPT TO SALVAGE WHATEVER EMPLOYMENT POTENTIAL
ANY EMPLOYEE MIGHT DEMONSTRATE. THEIR HISTORY INDICATED THAT THEY BOTH
WOULD ENDURE FAR MORE DIFFICULTIES THAN OTHER SUPERVISORS WOULD BECAUSE
OF THE UNIQUE NATURE OF THEIR PARTICULAR EMPLOYEES. IN THIS PARTICULAR
CASE, THE TWO EMPLOYEES IN QUESTION WERE GIVEN AN UNLIMITED AMOUNT OF
LATITUDE AND THEY MANAGED TO EXCEED IT. GRANTED THAT NEITHER MS. BAYNE
NOR MS. HUGHES, NOR MS. BROWN FOR THE MATTER, ARTICULATED WITH ANY
PRECISION THE SPECIFIC REASONS FOR THEIR DECISION TO TERMINATE THE TWO
MEN. HOWEVER, IT IS BEYOND CAVIL THAT THOSE REASONS WERE GROUNDED IN
THEIR EMPLOYMENT PERFORMANCE AND THAT THOSE REASONS HAD ABSOLUTELY
NOTHING TO DO WITH THE FACT THAT THEY WERE MEMBERS OF THE UNION OR THAT
THEY MADE ATTEMPTS TO HAVE THE UNION REPRESENT THEM. /10/ GIVING
CONSIDERATION TO ALL THE FACTS AND ARGUMENTS RAISED IN THIS CASE, I AM
CERTAIN THAT THEIR MEMBERSHIP IN THE UNION AND THEIR ENLISTMENT OF UNION
REPRESENTATION HAD NOTHING TO DO WITH THE DECISION TO TERMINATE THEIR
EMPLOYMENT.
HAVING FOUND AND CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE THE
STATUTE AS ALLEGED, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS
AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5 C.F.R. 2423.29(C):
ORDER
ORDERED, THAT THE COMPLAINTS IN CASE NOS. 9-CA-750 AND 9-CA-762 ARE
DISMISSED.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: JULY 24, 1981
WASHINGTON, DC
--------------- FOOTNOTES$ ---------------
/1/ DURING THIS PERIOD OF TIME MR. SLOVER RECEIVED HIS SIX MONTHS
EVALUATION WHICH WAS SATISFACTORY. IN VIEW OF THE EFFORTS BEING MADE BY
HIS SUPERVISOR TO ASSIST HIM IN HIS READJUSTMENT TO CIVILIAN EMPLOYMENT,
I AM NOT SURPRISED AT THAT RATING DESPITE THE LITANY OF PERFORMANCE
PROBLEMS SHE HAD WITH HIM. I CREDIT MS. BAYNE'S TESTIMONY BASED ON HER
DEMEANOR AND THE CONSISTENCY OF OTHER CREDITED TESTIMONY. RAYMOND LEE,
WHO FOR A TIME DROVE THE VAN, TESTIFIED THAT MR. SLOVER WAS "ORGANIZED"
AND THAT OTHER EMPLOYEES LOOKED UP TO AND ASKED QUESTIONS OF MR. SLOVER.
I DO NOT CREDIT HIS TESTIMONY. HIS EMPLOYMENT CONTACT WITH MR. SLOVER
WAS CONFINED TO A SHORT PERIOD OF TIME ON THE VAN AND, AS WILL BE
DISCUSSED INFRA, HIS ROLE IN THIS WHOLE DRAMA IS SUSPECT.
/2/ MS. BAYNE AGREED THAT NOT ALL ERRORS OCCURRED ON THE VAN.
/3/ I CREDIT MS. HUGHES' TESTIMONY THAT THE REQUEST FOR UNION
REPRESENTATION CAME AFTER MR. SLOVER WAS REMOVED FROM THE VAN AND NOT
BEFORE. I DO SO ON THE BASIS OF HER DEMEANOR AND OTHER CONSISTENT
TESTIMONY. I DO NOT CREDIT MR. SLOVER'S VERSION TO THE CONTRARY. HIS
TESTIMONY WAS CONTRADICTED NOT ONLY BY MS. HUGHES AND MS. BAYNE, BUT
ALSO BY HIS UNION REPRESENTATIVE WHO TESTIFIED THAT HE COMPLAINED THAT
HE WAS TAKEN OFF THE VAN FOR HIS POLITICAL ACTIVITIES, NOT BECAUSE HE
ASKED FOR UNION REPRESENTATION. MR. SLOVER'S CREDIBILITY WAS ALSO
IMPAIRED WHEN, ON THE ONE HAND, HE TESTIFIED THAT LESTER CHRISTIANSEN
TOLD HIM THAT HE WAS CAUTIONED BY MS. BAYNE NOT TO ASSOCIATE WITH MR.
SLOVER. MR. CHRISTIANSEN, ON THE OTHER HAND, DENIED THAT SUCH A
STATEMENT HAD BEEN MADE AND FURTHER, HE STATED THAT HE REFUSED TO SIGN A
STATEMENT WHICH HAD BEEN PREPARED TO BOLSTER MR. SLOVER'S POSITION IN
THIS CASE.
/4/ THE UNION REPRESENTATIVE WAS SARANN SANDNESS. HER TESTIMONY
GIVES SHORT SHRIFT TO ANY CLAIM OF ANTI-UNION REMARKS ON THE PART OF MS.
BAYNE OR MS. HUGHES. IN FACT, SHE SPECIFICALLY TOLD MR. SLOVER THAT HE
SHOULD HAVE NO FEAR OF HAVING UNION REPRESENTATION BECAUSE SHE HAD NEVER
FELT ANY PROBLEM IN THAT REGARD WITH EITHER OF THOSE TWO SUPERVISORS.
ANOTHER UNION REPRESENTATIVE, ROSEMARY BROWN, TESTIFIED THAT MANAGEMENT
NEVER REFUSED TO HAVE HER PRESENT AS A STEWARD WHEN HER PRESENCE WAS
REQUESTED BY A UNION MEMBER. THUS, I CANNOT CREDIT MR. SLOVER'S CLAIM
THAT MS. HUGHES ADVISED HIM TO "STAY AWAY FROM THE UNION BECAUSE YOU ARE
GOING TO BE MARKED AS A TROUBLE MAKER." IN LIGHT OF THE QUESTION OF HIS
CREDIBILITY AS RAISED IN FOOTNOTE 3, I CANNOT ACCEPT HIS UNCORROBORATED,
SELF-SERVING ASSERTION OF SUCH A CONVERSATION WITH MS. HUGHES. ALTHOUGH
SHE WAS NOT SPECIFICALLY ASKED TO DENY THAT SHE MADE SUCH A STATEMENT,
SHE DID TESTIFY THAT THE NEXT CONVERSATION SHE HAD WITH MR. SLOVER WAS
WHEN HE WAS PRESENTED WITH A LETTER OF CAUTION, DISCUSSED INFRA, AT A
MEETING ATTENDED BY MS. BAYNE. I ALSO DO NOT CREDIT THE TESTIMONY OF
STEVEN CARUTHERS WHO CLAIMED THAT, AFTER MR. SLOVER WAS TERMINATED, HE
OVERHEARD MS. BAYNE TELL "TERRY", A FORMER EMPLOYEE, THAT IF MR. SLOVER
AND MR. BANASIAK HAD LEFT THE UNION OUT OF IT, THEY WOULD NOT HAVE BEEN
FIRED. "TERRY" WAS NEVER CALLED TO CORROBORATE THIS TESTIMONY NOR WAS
ANY EXPLANATION OF HIS ABSENCE OFFERED. MOREOVER, RAY KOZEL, A FRIEND
OF MR. CARUTHERS AND A LABOR RELATIONS SPECIALIST AT THE SHIPYARD,
TESTIFIED THAT HE SPOKE TO MR. CARUTHERS THE MORNING BEFORE THE HEARING
AND THAT MR. CARUTHERS SAID THAT HE WAS ANXIOUS TO TESTIFY IN THIS
PROCEEDING, THAT HE WAS A FRIEND OF MR. SLOVER, AND THAT HE DID NOT LIKE
MS. BAYNE.
/5/ MR. SLOVER'S CONTENTION THAT HE SIGNED UP FOR ALL THE FLOOR RUNS
TO DEMONSTRATE HIS CAPABILITIES IS PLAINLY LUDICROUS. THE EVIDENCE
BELIES THE PHYSICAL POSSIBILITY OF SUCH A PERFORMANCE.
/6/ AT THE TIME, MR. SLOVER WAS IN CHARGE OF THE VAN. MR.
CHRISTIANSEN WAS SOON THEREAFTER ASSIGNED TO THE VAN. RAYMOND LEE WAS
THE DRIVER OF THE VAN. APPARENTLY AFTER MR. SLOVER WAS TAKEN OFF THE
VAN (SOMETIME SHORTLY AFTER MR. BANASIAK WAS ASSIGNED TO IT), WAYNE
BRAGGER JOINED THE CREW.
/7/ OTHER TESTIMONY INDICATED THAT MR. LEE WAS AT LEAST A SOMETIME
PLAYER OF BACKGAMMON DURING MAIL RUNS. ALSO, HE SEEMS TO BE THE COMMON
THREAD WHICH UNITED BOTH MR. SLOVER AND MR. BANASIAK AGAINST MS. BAYNE.
HE WAS DESCRIBED AS AN "INSTIGATOR" BY MR. CHRISTIANSEN WHO BELIEVED
THAT BECAUSE OF HIS POSITION AS A UNION STEWARD, HE COULD HELP THEM
"GET" MS. BAYNE. MR. CHRISTIANSEN WAS A CREDIBLE WITNESS. HE HAD
HELPED MR. SLOVER IN HIS POLITICAL ACTIVITIES ON BEHALF OF THE AMERICAN
HOSTAGES IN IRAN AND I FIND NO EVIDENCE OF ANY PERSONAL ANIMOSITY
BETWEEN THEM OR BETWEEN MR. BANASIAK AND HIM. MR. LEE'S TESTIMONY
CONTRADICTS MR. CHRISTIANSEN'S AND BASED ON DEMEANOR, I DO NOT CREDIT
MR. LEE.
/8/ MR. BANASIAK'S TESTIMONY IS THAT HE DID NOT SAY ANYTHING TO MS.
BAYNE. THIS DOES NOT CONTRADICT HIS TESTIMONY THAT HE MERELY SHOOK HIS
HEAD. NO TESTIMONY WAS OFFERED TO REBUT MS. BAYNE'S AND, IN ANY EVENT,
I CREDIT HER VERSION OF THE FACTS.
/9/ ALTHOUGH I CREDIT ROSEMARY BROWN'S TESTIMONY THAT THIS REMARK WAS
MADE, I DON'T GIVE ANY WEIGHT TO THE SUBSTANCE OF GWEN BROWN'S REMARK.
I ATTRIBUTE IT TO NERVOUSNESS UNDER THE PRESSURE OF AN EXIT INTERVIEW.
THE REMARK, OTHERWISE, DOES NOT FIT IN WITH THE OTHER FACTS FOUND TO
HAVE TAKEN PLACE. MOREOVER, ACCORDING TO ROSEMARY BROWN, GWEN BROWN
THEN SAID, IN ANSWER TO THE QUESTION "WHAT REALLY IS THE PROBLEM?",
"WELL, THINGS JUST AREN'T GOING WELL. HE DOESN'T WORK VERY WELL. I
DON'T LIKE HIS ATTITUDE VERY WELL."
/10/ THE DECISION ON APPEAL BY THE EMPLOYMENT SECURITY DEPARTMENT OF
THE STATE OF WASHINGTON, FINDING THAT MR. BANASIAK WAS NOT DISQUALIFIED
TO RECEIVE UNEMPLOYMENT COMPENSATION, DOES NOT ALTER THIS CONCLUSION.
THE ONLY TESTIMONY IN THAT CASE WAS FROM MR. BANASIAK (ALTHOUGH A
REPRESENTATIVE OF RESPONDENT DID MAKE A STATEMENT OF COUNSEL). THE
ISSUES IN THIS CASE WERE NOT FULLY LITIGATED BEFORE THAT TRIBUNAL AND,
BASED ON THE FULLER RECORD IN THE INSTANT CASE, I CANNOT ADOPT, NOR DO I
FIND THAT I AM OBLIGED TO BE BOUND BY, THE FACTS AS FOUND BY THE APPEAL
EXAMINER IN THAT CASE.