09:0458(55)CA - Norfolk Naval Shipyard and Tidewater Virginia Federal Employees MTC -- 1982 FLRAdec CA
[ v09 p458 ]
09:0458(55)CA
The decision of the Authority follows:
9 FLRA No. 55
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
Charging Party
Case No. 3-CA-1613
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (8) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND
RECOMMENDING CERTAIN REMEDIAL ACTION. THEREAFTER THE RESPONDENT FILED
EXCEPTIONS TO THE JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF 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 THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. /1A/ IN SO DOING, THE AUTHORITY RECOGNIZES
MANAGEMENT'S NEED, UNDER CERTAIN CIRCUMSTANCES, TO PLACE REASONABLE
LIMITATIONS ON THE EXCLUSIVE REPRESENTATIVE'S PARTICIPATION PURSUANT TO
SECTION 7114(A)(2)(B) OF THE STATUTE DURING AN EXAMINATION OF AN
EMPLOYEE, IN ORDER TO PREVENT AN ADVERSARY CONFRONTATION WITH THAT
REPRESENTATIVE AND TO ACHIEVE THE OBJECTIVE OF THE EXAMINATION. IN THE
INSTANT CASE, THE AUTHORITY RELIES UPON THE JUDGE'S CONCLUSION THAT
EMPLOYEES WERE UNNECESSARILY INTIMIDATED. IT FOLLOWS THAT THE
RESPONDENT'S CONDUCT WENT BEYOND WHAT WAS REASONABLY NECESSARY UNDER
THE
SPECIFIC CIRCUMSTANCES OF THIS CASE.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE NORFOLK NAVAL SHIPYARD SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
TRADES COUNCIL IN THE EXERCISE OF ITS RIGHT TO REPRESENT EMPLOYEES AT
EXAMINATIONS OF EMPLOYEES IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK
NAVAL SHIPYARD IN CONNECTION WITH AN INVESTIGATION, IF THE EMPLOYEE
INVOLVED REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS
REPRESENTATION BY THE COUNCIL.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED TO THEM BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RESCIND THE LETTER OF CAUTION WRITTEN TO DEBRA SHELTON ON
NOVEMBER 12, 1980, AND NOTIFY HER OF THIS ACTION BY CERTIFIED MAIL.
(B) AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
COUNCIL, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, THE
OPPORTUNITY TO PROVIDE FULL AND FAIR REPRESENTATION AT ANY EXAMINATION
OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK NAVAL
SHIPYARD IN CONNECTION WITH AN INVESTIGATION, IF THE EMPLOYEE REASONABLY
BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST
THE EMPLOYEE AND THE EMPLOYEE REQUESTS REPRESENTATION.
(C) POST, AT ITS FACILITIES, COPIES OF THE ATTACHED NOTICE ON FORMS
TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT
OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JULY 16, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERFERE WITH THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL IN THE EXERCISE OF ITS RIGHT TO REPRESENT EMPLOYEES
AT EXAMINATIONS OF EMPLOYEES IN THE UNIT BY A REPRESENTATIVE OF THE
NORFOLK NAVAL SHIPYARD IN CONNECTION WITH AN INVESTIGATION, IF THE
EMPLOYEE INVOLVED REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS
REPRESENTATION BY THE COUNCIL. WE WILL NOT, IN ANY LIKE OR RELATED
MANNER, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF
RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE. WE WILL RESCIND THE LETTER OF CAUTION SENT TO DEBRA SHELTON,
ON NOVEMBER 12, 1980, AND SO INFORM HER BY CERTIFIED MAIL. WE WILL
AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, THE OPPORTUNITY TO
PROVIDE FULL AND FAIR REPRESENTATION AT ANY EXAMINATION OF AN EMPLOYEE
IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK NAVAL SHIPYARD IN
CONNECTION WITH AN INVESTIGATION, IF THE EMPLOYEE REASONABLY BELIEVES
THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
EMPLOYEE AND THE EMPLOYEE REQUESTS REPRESENTATION.
(AGENCY OR ACTIVITY)
DATED: . . . BY: (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY
QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF
THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS:
1111 18TH STREET, N.W., SUITE 700, WASHINGTON, D.C., 20036, AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
W. B. BAGBY AND
JAMES D. MCGOWAN,
FOR THE RESPONDENT
SUSAN SHINKMAN AND
PETER A. SUTTON,
ATTORNEYS FOR THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
BEFORE: ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191 (1978), 5 U.S.C. 7101 ET SEQ. (SUPP.
III, 1979) (HEREINAFTER REFERRED TO AS THE "STATUTE"), AND THE RULES AND
REGULATIONS ISSUED THEREUNDER AND PUBLISHED AT 45 FED.REG. 3486 ET
SEQ., 5 CFR 2400 ET SEQ.
ON FEBRUARY 17, 1981, THE REGIONAL DIRECTOR OF REGION III OF THE
FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER, THE "AUTHORITY") FILED
AN AMENDED COMPLAINT AND NOTICE OF HEARING, BASED ON A CHARGE FILED ON
NOVEMBER 3, 1980, BY THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
TRADES COUNCIL (HEREINAFTER, THE "COUNCIL" OR THE "UNION"). THE AMENDED
COMPLAINT ALLEGES THAT RESPONDENT NORFOLK NAVAL SHIPYARD ("RESPONDENT OR
"SHIPYARD") VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE, THROUGH
ITS AGENT CHARLES RUTLEDGE, BY INTERFERING WITH UNION REPRESENTATIVES
AND EMPLOYEES ATTEMPTING TO EXERCISE RIGHTS PROTECTED BY SECTION
7114(A)(2)(B) OF THE STATUTE. RESPONDENT DENIES THAT IT HAS VIOLATED
THE STATUTE. RESPONDENT ALSO ALLEGES THAT THE ISSUES RAISED IN THIS
CASE WERE FIRST RAISED THROUGH THE PARTIES' NEGOTIATED GRIEVANCE
PROCEDURES AND ARE THEREFORE "PRECLUDED FROM CONSIDERATION UNDER THE
UNFAIR LABOR PRACTICE PROCEDURES BY SECTION 7116(D) OF THE STATUTE."
(RBR 12) /1/
A HEARING IN THE MATTER WAS HELD IN NORFOLK, VIRGINIA, ON MARCH 23
AND 24, 1981. THE PARTIES APPEARED, ADDUCED EVIDENCE, AND EXAMINED AND
CROSS-EXAMINED WITNESSES. BRIEFS WERE FILED ON MAY 15, BY THE GENERAL
COUNSEL, AND ON MAY 8, BY RESPONDENT. BASED ON THE RECORD MADE AT THE
HEARING, MY OBSERVATION OF THE DEMEANOR OF THE WITNESSES, AND A
CONSIDERATION OF THE BRIEFS, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS,
AND RECOMMENDED ORDER.
FINDINGS OF FACT /2/
1. NORFOLK NAVAL SHIPYARD IS AN "AGENCY" AND THE UNION IS A "LABOR
ORGANIZATION" WITHIN THE MEANING OF THE STATUTE. THE UNION IS THE
EXCLUSIVE REPRESENTATIVE OF CERTAIN OF RESPONDENT'S EMPLOYEES, INCLUDING
JAMES LONEY AND DEBRA SHELTON.
2. PREACTION INVESTIGATIONS ARE CONDUCTED BY INVESTIGATORS OF THE
SHIPYARD TO INQUIRE INTO, DISCOVER, AND REPORT PERTINENT FACTS
CONCERNING A MATTER WHICH MAY INVOLVE DISCIPLINARY ACTION OR ADVERSE
ACTION. THE INVESTIGATORS ARE TRAINED BY THE SHIPYARD IN A SPECIAL
COURSE AND ARE DRAWN FROM SHIPYARD SUPERVISORS. CHARLES RUTLEDGE IS AN
ELECTRICIAN FOREMAN AT THE SHIPYARD AND SERVED AS A PREACTION
INVESTIGATOR, FOR THE FIRST TIME, DURING THE PERIOD FROM AUGUST 1
THROUGH OCTOBER 6. /3/ DURING HIS STINT AS A PREACTION INVESTIGATOR, HE
CONDUCTED 35 TO 40 INVESTIGATIONS AND MADE ABOUT A HUNDRED CONTACTS WITH
PEOPLE INVOLVED IN THE INVESTIGATIONS.
3. DURING HIS STINT AS A PREACTION INVESTIGATOR, MR. RUTLEDGE
INTERVIEWED DEBRA SHELTON AND JAMES LONEY. BOTH WERE GRANTED THE RIGHT
TO BE REPRESENTED BY UNION STEWARDS AT THE INTERVIEWS. MS. SHELTON WAS
REPRESENTED BY JANICE STONE. MR. LONEY WAS REPRESENTED BY GORDON
BENTLEY. MR. BENTLEY DOES NOT NOW HOLD ANY UNION POSITION; AND HE
SERVED AS A STEWARD BETWEEN JULY AND SEPTEMBER. MS. STONE WAS A CHIEF
STEWARD FOR ABOUT NINE MONTHS, FROM JUNE UNTIL FEBRUARY, 1981, HAS BEEN
A STEWARD FOR ABOUT FOUR YEARS, AND IS STILL A STEWARD.
4. THE GENERAL COUNSEL CALLED MR. LONEY, MR. BENTLEY, AND MS. STONE
AS WITNESSES. MS. SHELTON NOW WORKS FOR IBM IN ATLANTA, GEORGIA AND DID
NOT APPEAR AS A WITNESS. RESPONDENT CALLED MR. RUTLEDGE AS ITS WITNESS
TO WHAT TRANSPIRED AT HIS INTERVIEWS WITH MR. LONEY AND MS. SHELTON.
MR. RUTLEDGE'S ACCOUNT OF THE INTERVIEWS VARIES, IN SOME SIGNIFICANT
RESPECTS, TO THOSE GIVEN BY THE GENERAL COUNSEL'S WITNESSES. AS A
WITNESS, MR. RUTLEDGE APPEARED TO BE SOMEWHAT LESS THAN CANDID AND
DEFENSIVE. ALSO, IN VIEW OF THE MANY INTERVIEWS HE HELD DURING HIS
SHORT STINT AS AN INVESTIGATOR, HIS MEMORY OF THE PARTICULARS OF EACH
ONE WOULD BE SOMEWHAT DIFFICULT. IN CONTRAST, MR. LONEY AND MR. BENTLEY
GAVE CONSISTENT ACCOUNTS OF THE LONEY INTERVIEW AND APPEARED CONFIDENT
OF THEIR FACTS. MR. BENTLEY IS NO LONGER A STEWARD AND HOLDS NO
POSITION WITH THE UNION, SO HE HAD NO SELF-INTEREST TO PROTECT IN GIVING
HIS TESTIMONY. IN THESE FINDINGS, THEREFORE, I HAVE RESOLVED CONFLICTS
IN THE TESTIMONY BY RELYING ON THAT OF MR. LONEY AND MR. BENTLEY AS
BEING MORE RELIABLE. THERE WAS NO WITNESS TO CORROBORATE MS. STONE'S
ACCOUNT OF THE INTERVIEW OF MS. SHELTON AND, AS PRESENT STEWARD OF THE
UNION, SHE CANNOT BE CHARACTERIZED AS A COMPLETELY UNBIASED WITNESS.
NEVERTHELESS, SHE GAVE HER ACCOUNT IN A FORTHRIGHT, POSITIVE MANNER AND
WAS A MORE BELIEVABLE WITNESS THAN MR. RUTLEDGE. ACCORDINGLY, I HAVE
CREDITED THE ACCOUNT GIVEN BY MS. STONE OF THE INTERVIEWS WITH MS.
SHELTON, WHERE A CONFLICT OCCURRED.
THE LONEY INTERVIEW
5. ON AUGUST 25, MR. RUTLEDGE HELD AN INTERVIEW WITH MR. LONEY ON A
CHARGE OF UNAUTHORIZED ABSENCE FROM JULY 21 THROUGH AUGUST 5. AT THE
TIME OF THE INTERVIEW, MR. LONEY HAD ALREADY BEEN PUT ON SO-CALLED "Z
LEAVE" FOR THOSE DAYS. EMPLOYEES ARE PUT ON Z LEAVE FOR UNAUTHORIZED
ABSENCE FROM WORK. MR. LONEY HAS NEVER BEEN PAID FOR THOSE DAYS.
PLACEMENT ON Z LEAVE IS NOT A DISCIPLINARY OR ADVERSE ACTION, BUT
UNAUTHORIZED LEAVE CAN LEAD TO SUCH AN ACTION. THE INTERVIEW BEGAN WITH
MR. RUTLEDGE ASKING MR. LONEY SOME QUESTIONS FROM A PREVIOUSLY PREPARED
LIST. VERY EARLY IN THE QUESTIONING, MR. BENTLEY OBJECTED TO THE
QUESTIONS AS "UNFAIR" AND NOT "LEGITIMATE" BECAUSE THEY REFERRED TO
ARTICLES AND SECTIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH
EMPLOYEES WOULD NOT BE LIKELY TO KNOW. (TR 63-64, 75) TO MAKE HIS
POINT, MR. BENTLEY ASKED MR. RUTLEDGE ABOUT AN ARTICLE OF THE AGREEMENT
WHICH MR. RUTLEDGE DID NOT KNOW. MR. BENTLEY CONTINUED TO OBJECT AND
DID THE MAJORITY OF THE TALKING IN RESPONSE TO THE QUESTIONS POSED BY
MR. RUTLEDGE. MR. RUTLEDGE BECAME FRUSTRATED AND REPEATEDLY TOLD MR.
BENTLEY TO KEEP QUIET, THAT HE WANTED TO HEAR MR. LONEY'S SIDE OF THE
STORY. MR. RUTLEDGE ALSO TOLD MR. BENTLEY THAT HE WAS NOT A COUNCIL
REPRESENTATIVE AND DID NOT HAVE "THE RIGHT TO SPEAK." (TR 56) MR.
BENTLEY SHOWED MR. RUTLEDGE THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES
TO PROVE THAT HE, MR. BENTLEY, WAS THE COUNCIL REPRESENTATIVE. MR.
BENTLEY CONTINUED TO INSIST THAT MR. BENTLEY REMAIN QUIET. MR. BENTLEY
DID NOT REMAIN QUIET, HOWEVER. MR. LONEY ONLY ANSWERED QUESTIONS WHEN
TOLD TO DO SO BY MR. BENTLEY; AND MR. BENTLEY DISAPPROVED OF EIGHT OF
THE TWELVE PREPARED QUESTIONS. INSTEAD OF ANSWERING THE EIGHT, MR.
BENTLEY ADVISED MR. LONEY TO RESPOND THAT HE WOULD "COVER" THE QUESTION
IN A STATEMENT TO BE MADE AT A LATER DATE. MR. LONEY FOLLOWED MR.
BENTLEY'S ADVICE THROUGHOUT THE INTERVIEW. MR. BENTLEY DID NOT FAIL TO
BRING ANYTHING TO THE ATTENTION OF MR. RUTLEDGE THAT HE SHOULD HAVE.
MR. LONEY NEVER SUBMITTED A WRITTEN STATEMENT, ALTHOUGH INFORMED BY MR.
RUTLEDGE THAT HE HAD AN "AUTOMATIC" RIGHT TO SUBMIT SUCH A STATEMENT.
(TR 72)
6. AT THE CONCLUSION OF THE AUGUST 25 INTERVIEW OF MR. LONEY, MR.
RUTLEDGE HANDED MR. LONEY AN INTERVIEW CHECKLIST TO SIGN. THE CHECKLIST
SHOWS THAT MR. LONEY WAS ADVISED OF HIS RIGHTS TO UNION REPRESENTATION,
THAT HE HAD BEEN INFORMED OF THE ALLEGED INCIDENT BEING INVESTIGATED,
AND THAT HE HAD MADE NO STATEMENT, ORAL OR WRITTEN. MR. LONEY HANDED
THE CHECKLIST TO MR. BENTLEY WHO PROCEEDED TO WRITE ON THE CHECKLIST IN
A SPACE PROVIDED FOR "INVESTIGATOR NOTES." (TR 60 AND R 2) MR. BENTLEY
WAS ATTEMPTING TO WRITE "BUT RESERVES THE RIGHT TO MAKE A STATEMENT AT A
LATER DATE." MR. RUTLEDGE SNATCHED THE PAPER FROM MR. LONEY BEFORE MR.
LONEY HAD COMPLETED WHAT HE WANTED TO WRITE. MR. LONEY AND MR. BENTLEY
SIGNED THE CHECKLIST AND ALSO A SHEET SHOWING THE ANSWERS GIVEN BY MR.
LONEY, INCLUDING THOSE WHERE HE STATED HE WOULD MAKE A STATEMENT LATER.
NO DISCIPLINE RESULTED FROM THE INTERVIEW, OR THE UNEXCUSED ABSENCE.
SEE TR 23.
7. ABOUT A WEEK AFTER THE AUGUST 25 INTERVIEW, MR. LONEY WROTE A
LETTER TO THE CHIEF STEWARD OF THE UNION, IN WHICH HE OBJECTED THAT HE
DID NOT HAVE PROPER REPRESENTATION AT THE INTERVIEW AND STATED THAT HE
WANTED TO FILE A GRIEVANCE AGAINST MR. RUTLEDGE BECAUSE OF HIS "VERY
BAD" MISBEHAVIOR AT THE INTERVIEW. (TR 40, 42 AND 44)
THE SHELTON INTERVIEW
8. ON AUGUST 28, A FIGHT OCCURRED BETWEEN DEBRA SHELTON AND TIMOTHY
CARTER OVER A WORK-RELATED DISPUTE. THERE WERE NO WITNESSES. JANICE
STONE, CHIEF STEWARD FOR THE UNION LEARNED ABOUT IT AND REPORTED TO
SHIPYARD OFFICIALS THAT MR. CARTER HAD BEATEN MS. SHELTON.
9. ON AUGUST 29, MR. RUTLEDGE WAS DIRECTED TO LOOK INTO THIS
ALLEGATION AGAINST MR. CARTER. HE TALKED TO MS. SHELTON IN THE SHIPYARD
DISPENSARY WHERE SHE WAS BEING TREATED FOR INJURIES. MS. SHELTON GAVE
MR. RUTLEDGE A WRITTEN STATEMENT. SHE DID NOT REQUEST UNION
REPRESENTATION.
10. ON SEPTEMBER 9, MR. RUTLEDGE AGAIN MET WITH MS. SHELTON TO GET A
STATEMENT IN A PREACTION INVESTIGATION WHICH WAS INSTITUTED TO LOOK INTO
THE CHARGE AGAINST MR. CARTER. MS. SHELTON, THIS TIME, WAS REPRESENTED
BY THE UNION, IN THE PERSON OF MS. STONE. MR. RUTLEDGE PROCEEDED TO
ASK MS. SHELTON QUESTIONS AND WAS CONTINUALLY INTERRUPTED BY MS. STONE.
MS. STONE INSISTED THAT THE QUESTIONS WERE LEADING AND MISLEADING, AND
THAT MR. RUTLEDGE WAS NOT FOLLOWING THE NEGOTIATED AGREEMENT. MR.
RUTLEDGE REPLIED THAT HE WAS STATING THE QUESTIONS EXACTLY AS HE WANTED
TO STATE THEM, AND THAT HE ONLY HAD TO FOLLOW THE FEDERAL PERSONAL
MANUAL. MS. STONE HAD AN OPPORTUNITY TO CONSULT PRIVATELY WITH MS.
SHELTON. SHE ADVISED HER NOT TO ANSWER LEADING QUESTIONS AND, AT FIRST,
MS. SHELTON FOLLOWED THIS ADVICE. MR. RUTLEDGE KEPT TELLING MS. STONE
TO KEEP QUIET AND NOT INTERRUPT. HE ALSO TOLD HER THAT SHE WAS NOT A
REPRESENTATIVE FOR THE COUNCIL, OR MS. SHELTON. MS. STONE, HOWEVER,
ASSERTED HER RIGHTS OF REPRESENTATION AND DID NOT KEEP QUIET. HOWEVER,
MS. SHELTON BECAME DISTRESSED, STARTED TO CRY, AND EVENTUALLY GAVE MR.
RUTLEDGE ANOTHER STATEMENT, AGAINST THE ADVICE OF MS. STONE. MR.
RUTLEDGE ADMITTED THAT HE RECEIVED A STATEMENT FROM MS. SHELTON AFTER HE
BECAME "A LITTLE MORE ASSERTIVE". (TR 139)
11. ON OR ABOUT SEPTEMBER 16, MR. RUTLEDGE HAD A SECOND MEETING WITH
MS. SHELTON AND MS. STONE. THIS MEETING WAS A PREACTION INVESTIGATION
IN WHICH MS. SHELTON WAS THE SUBJECT OF THE INVESTIGATION. IT TOO
CONCERNED THE SHELTON-CARTER INCIDENT. MR. RUTLEDGE AGAIN WAS
CONTINUALLY INTERRUPTED BY MS. STONE, IN THE COURSE OF HIS QUESTIONING.
MS. STONE OBJECTED THAT MS. SHELTON HAD ALREADY GIVEN TWO STATEMENTS
ABOUT THE INCIDENT AND THAT MR. RUTLEDGE WAS VIOLATING THE NEGOTIATED
AGREEMENT. HE TOLD HER, THREE OR FOUR TIMES, TO KEEP HER MOUTH SHUT,
AND SHE WAS NOT MS. SHELTON'S REPRESENTATIVE. MS. STONE DID NOT CEASE
HER REPRESENTATION EFFORTS ON BEHALF OF MS. SHELTON, HOWEVER. SHE
ADVISED MS. SHELTON NOT TO GIVE ANOTHER STATEMENT; AND THIS TIME MS.
SHELTON FOLLOWED HER ADVICE, GIVING ONLY SOME "SMALL STATEMENTS" AND
COPYING OVER AGAIN THE STATEMENT SHE GAVE THE LAST TIME. MR. RUTLEDGE
GAVE THEM A "DIRECT ORDER" TO SIGN THE STATEMENT AND THEY DID SO.
ALTHOUGH MR. RUTLEDGE WAS NOT THEIR SUPERVISOR, IT IS A SHIPYARD RULE
THAT ANY EMPLOYEE MUST ACCEPT A DIRECT ORDER FROM ANY SUPERVISOR. THE
ONLY REASON GIVEN BY MS. STONE FOR NOT WANTING TO SIGN THE STATEMENT WAS
THAT IT DID NOT STATE THE ALLEGED INCIDENT INVOLVED, AS IS ROUTINELY
REQUIRED.
12. THE INTERVIEW ON OR ABOUT SEPTEMBER 16 WAS INTERRUPTED BEFORE
ITS CONCLUSION BY SUE ALLEN, A PERSONNEL SPECIALIST WHO "VERY POLITELY"
SAID SHE WAS SORRY TO INTERRUPT, BUT THAT MS. STONE COULD NOT REPRESENT
MS. SHELTON AS MS. STONE WAS THE CHIEF STEWARD. (TR 219) THE NEGOTIATED
AGREEMENT PROVIDES REPRESENTATION BY THE "SHOP STEWARD." (R 8.85,
SECTION 2B)
13. ON SEPTEMBER 17, MR. RUTLEDGE ATTENDED A MEETING ALSO ATTENDED
BY RONALD AULT, THE PRESIDENT OF THE UNION AND CHAIRMAN OF ITS
CONFERENCE COMMITTEE, MS. STONE, AND TWO MANAGEMENT OFFICIALS, MR.
HARRIS, AND MS. ALLEN. THIS MEETING WAS A MONTHLY LABOR-MANAGEMENT
MEETING. MR. RUTLEDGE WAS THERE BECAUSE HE HAD RECEIVED A LETTER FROM
MR. HARRIS STATING THAT MS. STONE HAD COMPLAINED ABOUT "SOME
IMPROPRIETIES" COMMITTED BY HIM IN REGARD TO HIS INTERVIEW WITH MS.
SHELTON. (TR 157) MR. RUTLEDGE CLAIMED THAT HE WAS "INNOCENT." (TR 115)
14. ON SEPTEMBER 22, MR. RUTLEDGE CONDUCTED A PREACTION
INVESTIGATION OF MS. SHELTON AND HER ROLE IN THE FIGHT WITH MR. CARTER.
SHE WAS REPRESENTED BY HER COGNIZANT SHOP STEWARD, MR. WILLIAMS. NO
EVIDENCE WAS ADDUCED OF ALLEGED IMPROPRIETIES BY MR. RUTLEDGE, AT THIS
MEETING.
15. ON NOVEMBER 12, 1980, MS. SHELTON WAS GIVEN A LETTER OF CAUTION
BECAUSE OF HER PARTICIPATION IN THE FIGHT WITH MR. CARTER. THE LETTER
RECITES THE ALLEGATIONS MADE BY HER AND MR. CARTER, AND REFERS TO
STATEMENTS SHE MADE "DURING THE PREACTION INVESTIGATION OF THIS
INCIDENT." (GC 3, PARAGRAPH 2) IT STATES THAT EVEN IF MR. CARTER HAD
ABUSED HER, SHE SHOULD HAVE GONE IMMEDIATELY TO A SUPERVISOR AND
REPORTED THE INCIDENT, AND WAS ADMONISHED TO SO CONDUCT HERSELF, IN THE
FUTURE. THE LETTER STATES IT IS A "NON-DISCIPLINARY" WRITTEN NOTICE
THAT WILL NOT GO IN HER PERSONNEL FOLDER, BUT WILL BE RETAINED BY HER
PRODUCTION SUPERINTENDENT FOR A PERIOD NOT TO EXCEED ONE YEAR, AS A
RECORD THAT THE MATTER HAD BEEN BROUGHT TO HER ATTENTION.
THE ALLEGED "GRIEVANCE" FILED BY THE UNION
16. A QUESTION IS RAISED, IN THIS PROCEEDING, AS TO WHETHER A
SEPTEMBER 2 LETTER OF MR. AULT CONSTITUTED A REQUEST FOR A
"COUNCIL-EMPLOYEE" MEETING, PURSUANT TO ARTICLE 32 OF THE NEGOTIATED
AGREEMENT BETWEEN THE UNION AND THE SHIPYARD, OR A "GRIEVANCE", PURSUANT
TO ARTICLE 33 OF THE AGREEMENT. SEE RESPONDENT'S EXHIBIT NO. 8.
A. COUNCIL-EMPLOYEE MEETINGS ARE CALLED "SUBJECT TO THE REQUEST OF
EITHER PARTY" AND "FOR
THE PURPOSE OF CONFERRING AND RESOLVING PROBLEMS INVOLVING PERSONNEL
POLICIES AND PRACTICES,
AND APPROPRIATE MATTERS CONCERNING EMPLOYEE WORKING CONDITIONS." (R
8.86) THE SHIPYARD
COMMANDER AND/OR HIS DESIGNATED REPRESENTATIVE MEET WITH THE UNION'S
CONFERENCE COMMITTEE,
COMPOSED OF THE UNION'S CHAIRMAN, PLUS FOUR MEMBERS, TO DISCUSS THE
MATTERS RAISED. CHIEF
STEWARDS MAY ATTEND.
B. "GRIEVANCE PROCEDURES" ARE SET OUT IN ARTICLE 33 OF THE
NEGOTIATED AGREEMENT
(HEREINAFTER, THE "AGREEMENT"). (R 8.89-94) THESE PROCEDURES ARE
INSTITUTED REGARDING
"IMPROPER APPLICATION OR INTERPRETATION OF TH(E) AGREEMENT, IMPROPER
APPLICATION OF SHIPYARD
DIRECTIVES, DIRECTIVES ISSUED BY HIGHER AGENCY AUTHORITY AND THE
CSC." (R8.89) THE PREACTION
INVESTIGATION PROCEDURES ARE SET OUT IN A SHIPYARD DIRECTIVE. THE
UNION INITIATES A GRIEVANCE
BY INFORMING THE "INDUSTRIAL RELATIONS OFFICER" IN WRITING, OF THE
"ARTICLES AND SECTIONS
MISINTERPRETED, THE INCIDENT GIVING RISE TO THE MISINTERPRETATION,
AND THE CORRECTIVE ACTION
DESIRED." (R 8.92) GENERALLY, GRIEVANCES ARE ASSIGNED A NUMBER BY THE
SHIPYARD, BUT SOMETIMES
NOT UNTIL ARBITRATION IS INVOKED. WITHIN 15 DAYS OF RECEIPT OF A
GRIEVANCE LETTER, THE
PARTIES MEET TO RESOLVE THE MATTER. SEE R 8.92, SECTION 6. THE
INDUSTRIAL RELATIONS OFFICER
(CODE 150) OR HIS DESIGNATEE, WITH OTHER APPROPRIATE MANAGEMENT
OFFICIALS, REPRESENT THE
SHIPYARD. THE COUNCIL'S CONFERENCE CHAIRMAN AND THE OTHER CONFERENCE
MEMBERS REPRESENT THE
UNION. WITNESSES HAVING KNOWLEDGE OF THE GRIEVANCE MAY BE JOINTLY
CALLED BY THE PARTIES. SEE
R 8.92, SECTION 6.
C. THERE HAD BEEN A PRACTICE BY THE UNION OF SENDING GRIEVANCES TO
CODE 160, RATHER THAN
TO CODE 150. /4/ CODE 160 IS THE EMPLOYEE RELATIONS DIVISION HEADED
BY MR. ANDREW
JAMES. MR. JAMES STOPPED THE PRACTICE BY SENDING SUCH MISDIRECTED
GRIEVANCES BACK TO THE
UNION. HE TOOK THIS ACTION SOMETIME AROUND THE END OF 1979, OR
AROUND THE FIRST OF 1980. SEE
TR 234. ACCORDING TO MR. JAMES, GRIEVANCES DO NOT ALWAYS ADDRESS AN
INTERPRETATION OF A
SPECIFIC PART OF A CONTRACT, AND DO NOT ALWAYS INCLUDE A
CORRECTIVE-ACTION PROPOSAL. SEE TR
230. MR. AULT FILES ALL GRIEVANCES ON BEHALF OF THE UNION AND
INDICATED THAT HE FOLLOWS THE
PROCEDURE SET OUT IN THE CONTRACT. SEE TR 209-210.
17. SOMETIME IN FEBRUARY, MR. JAMES WROTE A LETTER TO THE UNION IN
RESPONSE TO UNION COMPLAINTS ABOUT THE WAY THE SHIPYARD WAS CONDUCTING
PREACTION INVESTIGATIONS. THE LETTER STATED THAT THE SHIPYARD WOULD
DEVELOP A TRAINING COURSE, IN RESPONSE TO UNION COMPLAINTS ABOUT THE
NON-STANDARDIZED NATURE OF THE INVESTIGATIONS AND EMPLOYEES BEING DENIED
UNION REPRESENTATION.
18. ON SEPTEMBER 2, MR. AULT DIRECTED A LETTER TO "CODE 160", THE
OFFICE HEADED BY MR. JAMES. (R 7) IT WAS RECEIVED ON SEPTEMBER 3. MR.
AULT WRITES TO MR. JAMES OFTEN, SOMETIMES ON A DAILY BASIS, ON MATTERS
OF GENERAL CONCERN. THE STATED SUBJECT OF THE LETTER IS "PREACTION
INVESTIGATIONS IN NNSY." IT STATES, IN FULL:
PLEASE BE ADVISED THAT MTC HAS REQUESTED A MEETING TO BRING OUR
COMPLAINTS TO YOU OVER THE
FOULED UP MESS, WE COMMONLY CALL A PREACTION INVESTIGATION.
YOU HAVE STEADFASTLY REFUSED TO MEET WITH THE COUNCIL. YOUR REFUSAL
TO ACKNOWLEDGE OUR (&
YOUR) PROBLEM IS LIKE AN OSTRICH STICKING HIS HEAD IN THE SAND TO
HIDE. YOUR ASS IS HANGING
OUT.
WE REQUEST YOU MEET WITH US TO AIR OUR PROBLEM. A JOINT EFFORT CAN
RESOLVE BOTH OUR
PROBLEMS. THE SEPTEMBER 2 LETTER IS TYPICAL OF THE TYPE
CORRESPONDENCE WHICH MR. AULT SENDS TO MR. JAMES. MR. AULT TESTIFIED
THAT THE LETTER WAS "NOT A GRIEVANCE." (TR 217)
19. ON SEPTEMBER 29, A UNION-MANAGEMENT MEETING WAS HELD ON THE
MATTERS RAISED BY THE SEPTEMBER 2 LETTER. IT FOLLOWED AN INFORMAL
MEETING BETWEEN MR. AULT AND MR. JAMES "A FEW DAYS" AFTER MR. JAMES
RECEIVED THE LETTER. SEE TR 175, 176. IN ATTENDANCE AT THE SEPTEMBER
29 MEETING WERE MARILYN SPENCE, A LABOR RELATIONS SPECIALIST, AND SAMUEL
PITTMAN, A PERSONNEL MANAGEMENT SPECIALIST, BOTH REPRESENTING THE
SHIPYARD AND SUPERVISED BY MR. JAMES. REPRESENTING THE UNION WAS ITS
CONFERENCE COMMITTEE. GENERAL PROBLEMS WITH PREACTION INVESTIGATIONS
WERE DISCUSSED. ALSO DISCUSSED WERE SPECIFIC PROBLEMS WITH THREE
PREACTION INVESTIGATORS, INCLUDING MR. RUTLEDGE AND HIS INVESTIGATIONS
INVOLVING MR. LONEY AND MS. SHELTON. DISCUSSED WAS WHETHER MR. RUTLEDGE
DISCRIMINATED AGAINST MS. STONE, ON A RACIAL BASIS; REJECTED STATEMENTS
AS NOT WHAT HE WANTED; WROTE UP CHARGES AGAINST EMPLOYEES AND THEN
ACTED AS THE INVESTIGATOR; DENIED UNION REPRESENTATION TO EMPLOYEES;
HARASSED UNION REPRESENTATIVES; INTIMIDATED EMPLOYEES; AND
MISREPRESENTED HIMSELF TO MS. SHELTON BY GETTING A STATEMENT FROM HER
WITHOUT IDENTIFYING HIMSELF AS A PREACTION INVESTIGATOR. THE UNION DID
NOT REQUEST ARBITRATION, FOLLOWING THIS MEETING, AS IT COULD HAVE DONE
HAD THIS BEEN AN ARTICLE 33 "GRIEVANCE." (R 8.92, SECTION 6B)
20. ON OCTOBER 10, MR. AULT SIGNED A CHARGE ALLEGING THAT ON OR
ABOUT AUGUST 25, THE SHIPYARD, BY MR. RUTLEDGE, ACTING AS A PREACTION
INVESTIGATOR, DID VIOLATE SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY
HARASSMENT, COERCION, REFUSING TO RECOGNIZE A UNION STEWARD, AND
PROHIBITING PROPER REPRESENTATION OF EMPLOYEES AND A FAIR, IMPARTIAL
PREACTION INVESTIGATION. SEE GC1(A). THIS WAS THE CHARGE WHICH
INITIATED THIS PROCEEDING. THE CHARGE WAS FILED BECAUSE, ACCORDING TO
MR. AULT, THE UNION HAD BEEN UNABLE TO OBTAIN ANY RELIEF.
DISCUSSION AND CONCLUSIONS
TWO ISSUES ARE RAISED BY THE PARTIES-- WHETHER SECTION 7116(D) OF THE
STATUTE DEPRIVES THIS AUTHORITY OF JURISDICTION TO CONSIDER THE MERITS
OF THIS CASE; AND WHETHER MR. RUTLEDGE'S BEHAVIOR IN THE CONDUCT OF TWO
PREACTION INVESTIGATIONS CONSTITUTED UNFAIR LABOR PRACTICES UNDER
SECTION 7116(A)(1) AND (8) OF THE STATUTE. /5/
THE JURISDICTIONAL ISSUE
THE PREPONDERANCE OF THE EVIDENCE INDICATES THAT THE SEPTEMBER 2
LETTER OF MR. AULT WAS NOT A "GRIEVANCE" OF THE TYPE SPELLED OUT IN
ARTICLE 33 OF THE AGREEMENT BETWEEN THE PARTIES. WHILE, IN THE PAST,
GRIEVANCES MAY HAVE FAILED TO FOLLOW ONE OF THE PROPER CONTRACT
PROCEDURES, NAMELY, DIRECTING THE GRIEVANCE TO CODE 150, MR. JAMES HAD
STOPPED THE PRACTICE SOMETIME AROUND THE END OF 1979 OR THE FIRST OF
1980. THUS, THE DIRECTION OF THE LETTER TO CODE 160, RATHER THAN TO
CODE 150 IS A DEPENDABLE CLUE THAT THE LETTER WAS NOT INVOKING ARTICLE
33 GRIEVANCE PROCEDURES. THE LETTER ALSO FAILS TO STATE THE CORRECTIVE
ACTION DESIRED, OR SPELL OUT ANY SPECIFIC INSTANCES GIVING RISE TO THE
GRIEVANCE-- ARTICLE 33 REQUIREMENTS FOR A GRIEVANCE. THE LETTER FITS
MUCH MORE EASILY INTO AN ARTICLE 32 CALL FOR A MEETING TO RESOLVE A
PROBLEM WITH PERSONNEL PRACTICES, NAMELY HOW PREACTION INVESTIGATIONS
WERE BEING CONDUCTED. THE FACT THAT THE MEETING WENT FROM GENERAL
MATTERS TO SPECIFIC INSTANCES WAS NATURAL. THE FACT THAT SEVERAL OF THE
INSTANCES WHICH CAME UP FOR DISCUSSION, AS TO THE GENERAL PROBLEM, ARE
ALSO THE SUBJECT OF THIS UNFAIR LABOR PRACTICE PROCEEDING DOES NOT SERVE
TO OUST THIS AUTHORITY OF JURISDICTION.
THE CASES CITED BY RESPONDENT, AT PAGES 15 AND 16 OF ITS BRIEF, ARE
DISTINGUISHABLE. IN THE NORFOLK NAVAL SHIPYARD DECISION REPORTED AT 4
FLRA NO. 91 (1980), THERE WAS NO QUESTION THAT A "GRIEVANCE" HAD BEEN
FILED. THE SPECIFICATIONS IN THAT GRIEVANCE ARE SET FORTH ON PAGE 4 OF
JUDGE DEVANEY'S DECISION, WHICH THE AUTHORITY AFFIRMED; AND THEY TRACK
THE CONTRACTUAL REQUIREMENTS FOR A GRIEVANCE. THE FORMALITY OF THIS
UNDISPUTED GRIEVANCE ILLUSTRATES HOW FAR FROM BEING A GRIEVANCE IS THE
SEPTEMBER 2 LETTER OF MR. AULT.
THE OTHER CASE RELIED UPON BY RESPONDENT IS NORFOLK NAVAL SHIPYARD,
PORTSMOUTH, VIRGINIA, 2 FLRA NO. 104. IT TOO PRESENTED NO ISSUE AS TO
WHETHER A "GRIEVANCE" WAS ACTUALLY FILED IN THE MATTERS AT ISSUE IN THE
UNFAIR LABOR PRACTICE PROCEEDING. SEE, E.G., 2 FLRA 834.
THE UNFAIR LABOR PRACTICE ISSUE
THE REMAINING QUESTION IS WHETHER MR. RUTLEDGE PROPERLY CONDUCTED HIS
ROLE OF AN INVESTIGATOR. THE GENERAL COUNSEL ARGUES THAT "THE PROPER
ROLE OF A REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW IS MORE THAN THAT
OF AN OBSERVER," AND "THE REPRESENTATIVE MUST BE ABLE TO SPEAK FREELY ON
BEHALF OF THE EMPLOYEE." SEE GCBR 9, RELYING ON U.S. CUSTOMS SERVICE,
REGION VII, LOS ANGELES, CALIFORNIA, 5 FLRA NO. 41 (1981) AND PAGE 6 OF
JUDGE NAIMARK'S DECISION, WHICH WAS AFFIRMED BY THE AUTHORITY. /6/
RESPONDENT DOES NOT SEEM TO DISAGREE, BUT ARGUES THAT THE AGENCY
INVESTIGATOR REMAINS "FREE TO INSIST THAT HE IS ONLY INTERESTED, AT THE
TIME, IN HEARING THE EMPLOYEE'S OWN ACCOUNT OF THE MATTER UNDER
INVESTIGATION." SEE RBR9, RELYING ON NLRB V. J. WEINGARTEN, INC., 420
U.S. 251 (1975). /7/
THE EVOLVING LAW, UNDER THE SEMINAL WEINGARTEN CASE, SEEMS TO BE
ADOPTING THE VIEW THAT THE EMPLOYER DOES HAVE A LEGITIMATE INTEREST IN
SEEING THAT AN INVESTIGATORY INTERVIEW DOES NOT BECOME AN ADVERSARIAL
CONTEST OF WILLS BETWEEN THE INVESTIGATOR AND THE UNION REPRESENTATION.
SEE THE CUSTOMS CASE CITED ABOVE, AND ALSO THE DECISION OF THE NATIONAL
LABOR RELATIONS BOARD HOLDING THAT A UNION REPRESENTATION CANNOT BE TOLD
TO REMAIN SILENT AT A WEINGARTEN-TYPE INTERVIEW, BUT RECOGNIZING THAT
THE EMPLOYER HAS A "LIMITED" RIGHT TO REGULATE THE ROLE OF THE
REPRESENTATIVE-- "LIMITED TO A REASONABLE PREVENTION OF . . . (AN)
ADVERSARY CONFRONTATION WITH THE STATUTORY REPRESENTATIVE."
SOUTHWESTERN
BELL TEL., 251 NLRB NO. 61, 105 LRRM 1246, 1247 (1980). THIS VIEW
ACCORDS WITH THE PUBLIC INTEREST IN "THE EFFECTIVE CONDUCT OF PUBLIC
BUSINESS." SEE SECTION 7101(1)(B) OF THE STATUTE STATING CONGRESSIONAL
FINDINGS AND PURPOSE IN ENACTING IT. WHAT CONSTITUTES REASONABLENESS IS
THE DILEMMA HERE.
THE RECORD, FROM THE RESPONDENT'S VIEWPOINT, SHOWS THAT MR. RUTLEDGE
WAS NEW TO THE ROLE OF INVESTIGATOR AND UNCERTAIN AS TO HOW TO PROCEED.
HE WAS UP AGAINST TWO SEASONED AND PERSISTENT UNION STEWARDS WHO
CONTINUOUSLY OBJECTED AND INTERFERED WITH THE WAY HE WANTED TO CONDUCT
THE INVESTIGATION, AND HIS ABILITY TO OBTAIN ANSWERS FROM THE EMPLOYEES.
HIS TELLING THEM TO KEEP QUIET DID NOT RESULT IN THEIR KEEPING QUIET.
THE STEWARDS CONTINUED TO OBJECT, COUNSEL, AND CONFER WITH THE EMPLOYEES
BEING QUESTIONED. HIS PREVENTING MR. BENTLEY FROM WRITING IN A SPACE
RESERVED FOR "INVESTIGATOR'S NOTES" DID NOT PREVENT MR. BENTLEY FROM
DOING ANYTHING HE WAS ENTITLED TO DO.
THE RECORD FROM THE UNION'S VIEWPOINT, HOWEVER, DOES SHOW THAT MR.
RUTLEDGE EXCEEDED "REASONABLE" BOUNDS. MR. RUTLEDGE'S AGGRESSIVENESS
WAS INTIMIDATING TO THE EMPLOYEES. ONE, MS. SHELTON, WAS REDUCED BY HIM
TO TEARS AND WAS, IN EFFECT, COERCED BY HIM INTO GIVING STATEMENTS,
CONTRARY TO THE ADVICE OF HER UNION STEWARD. THE RIGHT PROTECTED, IN
SECTION 7114(A)(2)(B), TO UNION REPRESENTATION AT AN INVESTIGATORY
INTERVIEW, SHOULD NOT BE REDUCED TO A NULLITY BY ALLOWING THE EMPLOYEE
TO BE CAUGHT IN THE CROSSFIRE BETWEEN HER REPRESENTATIVE AND THAT OF HER
EMPLOYER, FOR, IN SUCH A CIRCUMSTANCE, THE EMPLOYEE IS ALL TOO LIKELY TO
ACQUIESCE IN THE DEMANDS OF THE EMPLOYER'S REPRESENTATIVE, LEAVING THE
UNION TO PERSEVERE FOR NAUGHT. MR. RUTLEDGE, IN THE CIRCUMSTANCES WITH
WHICH HE WAS FACED, COULD HAVE, POLITELY INFORMED THE EMPLOYEES THAT
THEIR CHOICE, OF NOT RESPONDING TO HIS QUESTIONS, LEFT HIM WITH NO
CHOICE BUT TO TERMINATE THE INTERVIEW, AND REPORT THE FACTS WITHOUT THE
BENEFIT OF THEIR INPUT. THIS ALWAYS REMAINS THE OPTION OF MANAGEMENT.
SEE THE CUSTOMS CASE CITED ABOVE AND, IN PARTICULAR, PAGE 7 OF THE
JUDGE'S AFFIRMED DECISION. BY INTIMIDATING THE EMPLOYEES AND ATTEMPTING
TO SILENCE THEIR UNION REPRESENTATIVES, MR. RUTLEDGE INTERFERED WITH
PROTECTED RIGHTS, AS ALLEGED IN THE COMPLAINT.
THE REMEDY
THE GENERAL COUNSEL SEEKS AN ORDER RESCINDING MR. LONEY'S Z LEAVE
STATUS FOR JULY 21 THROUGH AUGUST 15; RESCINDING THE LETTER OF CAUTION
ISSUED TO MS. SHELTON ON NOVEMBER 12; AND REQUIRING THE POSTING OF AN
APPROPRIATE NOTICE. SEE GCBR 14.
AS TO MR. LONEY'S Z LEAVE, HE WAS PLACED ON THAT STATUS BEFORE THE
PREACTION INVESTIGATION. NO DISCIPLINE OR ADVERSE ACTION RESULTED FROM
THE INVESTIGATION ITSELF. UNDER THESE CIRCUMSTANCES, RECISSION OF HIS Z
LEAVE STATUS IS INAPPROPRIATE.
MS. SHELTON'S LETTER OF CAUTION, SHOULD BE RESCINDED, HOWEVER. THE
LETTER MAKES SPECIFIC REFERENCE TO STATEMENTS GIVEN BY MS. SHELTON AT
THE PREACTION INVESTIGATION. SEE GC3.1. IT DOES NOT SAY WHICH ONE.
SOME STATEMENTS WERE GIVEN BY HER IN AN ATMOSPHERE OF CONFRONTATION
BETWEEN THE SHIPYARD AND THE UNION REPRESENTATIVES, AN ENCOUNTER DURING
WHICH THE SHIPYARD REPRESENTATIVE WAS AGGRESSIVELY SEEKING STATEMENTS
FROM MS. SHELTON. STATEMENTS SO OBTAINED ARE TAINTED; AND RESULTANT
ACTIONS IN ANY WAY HARMFUL TO AN EMPLOYEE SHOULD BE RESCINDED. WHILE
THE LETTER OF CAUTION IS "NON-DISCIPLINARY" AND IS NOT PUT IN THE
EMPLOYEE'S OFFICIAL PERSONNEL FOLDER, IT IS RETAINED BY A SHIPYARD
OFFICIAL FOR A PERIOD NOT TO EXCEED A YEAR, DOES REFLECT POORLY ON MS.
SHELTON, AND COULD AFFECT HER BEING REHIRED, SHOULD SHE WISH TO RETURN
TO SHIPYARD EMPLOYMENT.
THE POSTING OF A NOTICE TO EMPLOYEES SUMMARIZING THE ORDERS ENTERED
IN THIS PROCEEDING IS ALSO APPROPRIATE.
ULTIMATE FINDINGS AND ORDER
RESPONDENT NORFOLK NAVAL SHIPYARD HAS ENGAGED IN UNFAIR LABOR
PRACTICES, IN VIOLATION OF SECTION 7116(A)(1) AND (8) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
PURSUANT TO SECTION 7118(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7),
AND SECTION 2423.29(B) OF THE RULES AND REGULATIONS OF THE AUTHORITY, 5
CFR 2423.29(B), IT IS HEREBY ORDERED THAT RESPONDENT SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
TRADES COUNCIL IN THE
EXERCISE OF ITS RIGHT TO REPRESENT EMPLOYEES AT AN EXAMINATION OF AN
EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF RESPONDENT IN CONNECTION WITH AN INVESTIGATION, IF
THE EMPLOYEE REASONABLY
BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION
AGAINST THE EMPLOYEE AND THE
EMPLOYEE REQUESTS REPRESENTATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED TO THEM BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RESCIND THE LETTER OF CAUTION WRITTEN TO DEBRA SHELTON ON
NOVEMBER 12, 1980, AND NOTIFY
HER OF THIS ACTION BY CERTIFIED MAIL.
(B) AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
COUNCIL, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, FULL AND FAIR
REPRESENTATION AT ANY EXAMINATION OF
AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK NAVAL
SHIPYARD IN CONNECTION WITH
AN INVESTIGATION, IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS
REPRESENTATION.
(C) POST, AT ITS FACILITIES, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX," ON FORMS TO
BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY, UPON RECEIPT
OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDING OFFICER AND POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICE
TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER SHALL
TAKE REASONABLE STEPS TO
ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE
REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, IN
WRITING, WITHIN 30 DAYS
FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
(S) ISABELLE R. CAPPELLO
ISABELLE R. CAPPELLO
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 18, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REQUIRE ANY EMPLOYEE REPRESENTED BY THE TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL TO TAKE PART IN AN EXAMINATION IN
CONNECTION WITH AN INVESTIGATION, WITHOUT REPRESENTATION BY THE COUNCIL,
IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE, AND THE EMPLOYEE REQUESTS
REPRESENTATION BY THE COUNCIL. WE WILL NOT, IN ANY LIKE OR RELATED
MANNER, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF
RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE. WE WILL RESCIND THE LETTER OF CAUTION SENT TO DEBRA SHELTON,
ON NOVEMBER 12, 1980, AND SO INFORM HER BY CERTIFIED MAIL. WE WILL
AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, FULL AND FAIR
REPRESENTATION AT ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
REPRESENTATIVE OF THE NORFOLK NAVAL SHIPYARD IN CONNECTION WITH AN
INVESTIGATION, IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION
MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE
REQUESTS REPRESENTATION.
(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
QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF
THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS:
1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C., 20005, AND WHOSE
TELEPHONE NUMBER IS: (202) 653-8452.
/1A/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
THE JUDGE. THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
OBSERVING THE WITNESSES WHILE THEY TESTIFIED. THE AUTHORITY WILL NOT
OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
RESOLUTION WAS INCORRECT. THE AUTHORITY HAS EXAMINED THE RECORD
CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
FINDINGS.
--------------- FOOTNOTES$ ---------------
/1/ "RBR" REFERS TO THE BRIEF OF RESPONDENT. OTHER ABBREVIATIONS
USED IN THIS DECISION ARE AS FOLLOWS. "GC" REFERS TO THE EXHIBITS OF
THE GENERAL COUNSEL AND "R" TO THOSE OF RESPONDENT, WITH MULTIPAGE
EXHIBITS REFERENCED BY THE EXHIBIT NUMBER FOLLOWED BY THE PAGE NUMBER.
"TR" REFERS TO THE TRANSCRIPT. "GCBR" REFERS TO THE BRIEF OF THE
GENERAL COUNSEL.
/2/ ALL DATED REFERENCES HEREIN ARE IN 1980, UNLESS OTHERWISE
SPECIFIED.
/3/ SEE TR 124. AT ONE POINT, IN HIS TESTIMONY, MR. RUTLEDGE
REFERRED TO SEPTEMBER 2, AS THE ENDING DATE. SEE TR 156. THIS WAS
OBVIOUSLY AN ERROR, AS HE CONDUCTED ONE INVESTIGATION HERE IN ISSUE ON
SEPTEMBER 9. SEE, E.G., R 3 AND TR 135.
/4/ MR. JAMES SO TESTIFIED; AND HIS TESTIMONY WENT UNREBUTTED.
/5/ THE PERTINENT STATUTORY PROVISIONS ARE AS FOLLOWS:
SECTION 7116(A) PROVIDES THAT " . . . IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY -
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF ANY
RIGHT UNDER THIS CHAPTER; . . . OR (8) TO OTHERWISE FAIL OR REFUSE
TO COMPLY WITH ANY
PROVISION OF THIS CHAPTER."
SECTION 7114(A)(2)(B) PROVIDES THAT: "AN EXCLUSIVE REPRESENTATIVE OF
AN APPROPRIATE UNIT
IN AN AGENCY SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT - .
. . (B) ANY EXAMINATION
OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE AGENCY IN
CONNECTION WITH AN
INVESTIGATION IF - (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE
EXAMINATION MAY RESULT IN
DISCIPLINARY ACTION AGAINST THE EMPLOYEE; AND (II) THE EMPLOYEE
REQUESTS REPRESENTATION."
SECTION 7116(D) PROVIDES THAT " . . . ISSUES WHICH CAN BE RAISED
UNDER A GRIEVANCE
PROCEDURE MAY, IN THE DISCRETION OF AGGRIEVED PARTY, BE RAISED UNDER
THE GRIEVANCE PROCEDURE
OR AS AN UNFAIR LABOR PRACTICE UNDER THIS SECTION, BUT NOT UNDER BOTH
PROCEDURES." /6/ IN
CUSTOMS, THE UNION STEWARD WAS TOLD TO REMAIN SILENT DURING A PORTION
OF THE INTERVIEW; AND HE DID SO.
/7/ WEINGARTEN AROSE UNDER THE NATIONAL LABOR RELATIONS ACT AND
SERVED AS A PROTOTYPE FOR SECTION 7114(A)(2)(B), AS HAS BEEN RECOGNIZED
BY THIS AUTHORITY IN SUCH CASES AS INTERNAL REVENUE SERVICE, WASHINGTON,
D.C., 4 FLRA NO. 37 (1980) (SEE PAGE 10 OF JUDGE ARRIGO'S DECISION WHICH
THE AUTHORITY AFFIRMED).