3 A/SLMR 262; P. 186; CASE NO. 22-3385(RO); MAY 16, 1973.
DEPARTMENT OF THE TREASURY,
BUREAU OF THE MINT
A/SLMR NO. 262
THE SUBJECT CASE INVOLVES A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (AFGE), FOR AN
ELECTION IN AN ACTIVITY-WIDE UNIT OF ALL NONSUPERVISORY PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY. THE ACTIVITY CONTENDED THAT
THE AFGE PETITION WAS BARRED BECAUSE IT INCLUDED IMPROPERLY EMPLOYEES
COVERED BY CURRENT NEGOTIATED AGREEMENTS BETWEEN THE ACTIVITY AND THE
AFGE. THE AFGE, HOWEVER, ASSERTED THAT ONLY THE AGREEMENT COVERING
EMPLOYEES AT THE ACTIVITY'S SAN FRANCISCO ASSAY OFFICE CURRENTLY IS IN
EFFECT. IN THIS CONNECTION, IT INDICATED ITS WILLINGNESS TO WAIVE SUCH
AGREEMENT INSOFAR AS IT CONSTITUTED A BAR TO THE PROCESSING OF THE
PETITION. THE AFGE FURTHER CONTENDED THAT THE NEGOTIATED AGREEMENT
COVERING EMPLOYEES AT THE DENVER MINT COULD NOT OPERATE AS A BAR BECAUSE
IT DID NOT CONTAIN A CLEARLY ENUNCIATED FIXED TERM OR DURATION AND THAT
THE NEGOTIATED AGREEMENTS COVERING EMPLOYEES EMPLOYED IN THE NEW YORK
ASSAY OFFICE AND IN THE PHILADELPHIA MINT WERE NOT BARS AS THEY WERE NOT
SIGNED AT THE TIME THE PETITION HEREIN WAS FILED AND COULD NOT BECOME
EFFECTIVE UNTIL APPROVED AT HIGHER LEVEL OF MANAGEMENT.
THE ASSISTANT SECRETARY FOUND THAT THE ACTIVITY HAD NOT INDICATED A
CLEAR AND UNEQUIVOCAL INTENTION TO WAIVE THE AGREEMENT BAR IN EXISTENCE
AT THE SAN FRANCISCO ASSAY OFFICE. UNDER THESE CIRCUMSTANCES AND IN
ACCORDANCE WITH THE POLICY SET FORTH IN U.S. DEPARTMENT OF DEFENSE, DOD
OVERSEAS DEPENDENT SCHOOLS, A/SLMR NO. 110, THAT AN AGREEMENT BAR MAY
NOT BE WAIVED UNILATERALLY BY ONE OF THE PARTIES TO THE AGREEMENT, HE
CONCLUDED THAT THE AGREEMENT COVERING THE EMPLOYEES AT THE SAN FRANCISCO
ASSAY OFFICE CONSTITUTED A BAR TO THE PROCESSING OF THE AFGE PETITION
INSOFAR AS IT ENCOMPASSED THAT FACILITY.
WITH RESPECT TO THE AGREEMENT COVERING EMPLOYEES EMPLOYED AT THE
DENVER MINT, THE ASSISTANT SECRETARY CONCLUDED THAT SUCH AGREEMENT
CONSTITUTED A BAR BASED ON THE DECISION IN VETERANS ADMINISTRATION,
A/SLMR NO. 240, WHICH HELD, AMONG OTHER THINGS, THAT PARTIES TO A VALID
AGREEMENT, WHICH MAY BE TERMINABLE AT WILL OR CONTAINS OTHER DEFECTS
WHICH WOULD NOT CONSTITUTE A BAR TO AN ELECTION SOUGHT BY A THIRD PARTY,
ARE BOUND BY ITS TERMS ABSENT AN AFFIRMATIVE ACT OF TERMINATION. IN
THIS REGARD, HE FOUND THAT THE RECORD DID NOT SUPPORT A FINDING OF AN
AFFIRMATIVE ACT OF TERMINATION BY THE AFGE.
THE ASSISTANT SECRETARY FURTHER FOUND THAT THE AGREEMENTS COVERING
THE EMPLOYEES EMPLOYED IN THE NEW YORK ASSAY OFFICE AND THE PHILADELPHIA
MINT DID NOT CONSTITUTE BARS ON THE BASIS THAT AT THE PHILADELPHIA
FACILITY NEGOTIATIONS AT THE LOCAL LEVEL FOR AN AGREEMENT WERE NOT
COMPLETED AT THE TIME THE PETITION IN THE SUBJECT CASE WAS FILED.
FURTHER, HE NOTED THAT AT BOTH LOCATIONS THERE WAS NO SIGNED AGREEMENT
IN EFFECT WHEN THE PETITION IN THE INSTANT CASE WAS FILED.
THE ASSISTANT SECRETARY FOUND THAT A RESIDUAL, ACTIVITY-WIDE UNIT WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. HE NOTED THAT THE
ACTIVITY'S EMPLOYEES HAD A SIMILAR MISSION AND MANY WERE ENGAGED IN
SIMILAR DUTIES REQUIRING SIMILAR SKILLS, TRAINING, FUNCTIONS AND
INTERESTS. MOREOVER, THE EVIDENCE INDICATED THAT THERE WAS AN
INTERCHANGE OF WORK AND MATERIALS AMONG THE INSTALLATIONS AND THAT
ACCOMPLISHMENT OF THE MISSION OF THE ACTIVITY REQUIRED COORDINATED
EFFORTS ON THE PART OF EACH OF THE INSTALLATIONS. ADDITIONALLY, HE FOUND
THAT THE RECORD INDICATED THAT LABOR RELATIONS, PERSONNEL POLICIES AND
BASIC REGULATIONS GOVERNING WORKING CONDITIONS AND EMPLOYEES' BENEFITS
WERE ESTABLISHED AT THE HEADQUARTERS LEVEL, AND THAT WHILE THERE WERE
SOME VARIATIONS WITH RESPECT TO LOCAL CONDITIONS, SUCH DIFFERENCES WERE
SUBJECT TO REVIEW AND APPROVAL OR MODIFICATION BY THE OFFICE OF THE
DIRECTOR. UNDER THESE CIRCUMSTANCES, AND NOTING ALSO THAT THE ACTIVITY
HAD NOT DEMONSTRATED THAT A RESIDUAL, ACTIVITY-WIDE UNIT WOULD ADVERSELY
AFFECT EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS OR INHIBIT
THE PARTIES FROM NEGOTIATING LOCAL SUPPLEMENTS TO AN ACTIVITY-WIDE
AGREEMENT, THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN A RESIDUAL
UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE NEW YORK
ASSAY OFFICE, THE PHILADELPHIA MINT, THE WEST POINT DEPOSITORY, THE FORT
KNOX DEPOSITORY, AND THE OFFICE OF THE DIRECTOR.
DEPARTMENT OF THE TREASURY,
BUREAU OF THE MINT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
PETITIONER
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MICHAEL B. CHAIR.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /1/
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AFGE, SEEKS A UNIT OF ALL ELIGIBLE NONSUPERVISORY
EMPLOYEES, INCLUDING ALL PROFESSIONALS IF THEY VOTE FOR INCLUSION, /2/
OF THE BUREAU OF THE MINT, EXCLUDING ALL MANAGEMENT OFFICIALS,
SUPERVISORS, CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A CLERICAL CAPACITY, GUARDS, AND TEMPORARY
EMPLOYEES. /3/
THE ACTIVITY CONTENDS THAT THE PETITION IN THE INSTANT CASE
IMPROPERLY INCLUDES EMPLOYEES COVERED BY NEGOTIATED AGREEMENTS AT FOUR
INSTALLATIONS: THE SAN FRANCISCO ASSAY OFFICE, THE DENVER MINT, THE
PHILADELPHIA MINT AND THE NEW YORK ASSAY OFFICE. THE AFGE ARGUES THAT
ONLY THE NEGOTIATED AGREEMENT COVERING EMPLOYEES AT THE SAN FRANCISCO
ASSAY OFFICE IS IN EFFECT CURRENTLY AND THAT IT IS WILLING TO WAIVE SUCH
AGREEMENT INSOFAR AS IT CONSTITUTES A BAR TO THE PETITION HEREIN. /4/
THE ACTIVITY ALSO ASSERTS THAT THE REQUESTED UNIT IS NOT APPROPRIATE
INSOMUCH AS IT CONTAINS EMPLOYEES WHO DO NOT SHARE A COMMUNITY OF
INTEREST. IN THIS REGARD, THE ACTIVITY NOTES THAT FOUR
INSTALLATION-WIDE UNITS REPRESENTED BY THE AFGE, MENTIONED ABOVE,
ALREADY HAVE BEEN ESTABLISHED AND THAT THE ACTIVITY AND THE AFGE HAVE
ENJOYED A SATISFACTORY BARGAINING RELATIONSHIP ON THIS BASIS FOR AS LONG
AS NINE YEARS. UNDER THESE CIRCUMSTANCES, THE ACTIVITY CONTENDS THAT
THE CLAIMED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. /5/ THE AFGE ARGUES THAT THE UNIT SOUGHT IS
APPROPRIATE BECAUSE, AMONG OTHER THINGS, THERE IS A SIMILARITY OF SKILLS
AMONG THE CLAIMED EMPLOYEES AND THEY SHARE COMMON WORKING CONDITIONS.
I. ALLEGED BARS TO THE PETITION
THE RECORD REVEALS THAT UNDER EXECUTIVE ORDER 10988 CERTAIN AFGE
LOCALS WERE GRANTED EXCLUSIVE RECOGNITION BY THE ACTIVITY AND
SUBSEQUENTLY NEGOTIATED COLLECTIVE-BARGAINING AGREEMENTS AT THE
FOLLOWING FOUR INSTALLATIONS: U.S. ASSAY OFFICE, SAN FRANCISCO; U.S.
MINT, DENVER; U.S. MINT, PHILADELPHIA; AND U.S. ASSAY OFFICE, NEW
YORK.
WITH RESPECT TO THE SAN FRANCISCO ASSAY OFFICE, THE EVIDENCE
ESTABLISHES THAT THE NEGOTIATED AGREEMENT COVERING EMPLOYEES AT THAT
INSTALLATION CURRENTLY IS IN EFFECT. /6/ THE RECORD REVEALS THAT WHILE
THE AFGE IS WILLING TO WAIVE SUCH AGREEMENT INSOFAR AS IT CONSTITUTES A
BAR TO ITS PETITION IN THIS MATTER, THE ACTIVITY HAS NOT STATED
UNEQUIVOCALLY ITS WILLINGNESS TO JOIN IN SUCH A WAIVER WITH THE AFGE.
UNDER THESE CIRCUMSTANCES, AND FOR THE REASONS ENUNCIATED IN U.S.
DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, A/SLMR NO. 110,
IN WHICH IT WAS FOUND THAT AN AGREEMENT BAR MAY NOT BE WAIVED
UNILATERALLY BY ONE OF THE PARTIES TO THE AGREEMENT, I FIND THAT THE
AGREEMENT COVERING THE EMPLOYEES AT THE SAN FRANCISCO ASSAY OFFICE
CONSTITUTES A BAR TO THEIR INCLUSION IN THE CLAIMED UNIT. /7/
AS TO THE NEGOTIATED AGREEMENT COVERING EMPLOYEES AT THE ACTIVITIY'S
DENVER INSTALLATION, THE LATTER ASSERTS THAT THIS AGREEMENT CURRENTLY IS
IN EFFECT AND, THEREFORE, CONSTITUTES A BAR TO THE PETITION FOR AN
ACTIVITY-WIDE UNIT. THE AFGE, RELYING ON THE DECISION IN TREASURY
DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, A/SLMR NO.
45, MAINTAINS THAT THE AGREEMENT AT THE DENVER FACILITY CANNOT OPERATE
AS A BAR TO THE INSTANT PETITION BECAUSE SUCH AGREEMENT DOES NOT CONTAIN
A CLEARLY ENUNCIATED FIXED TERM OR DURATION. /8/ HOWEVER, THE
CIRCUMSTANCES HEREIN DIFFER SUBSTANTIALLY FROM THOSE PRESENT IN THE
TREASURY DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA,
CITED ABOVE. IN THAT CASE, THE PETITIONER WAS A THIRD PARTY SEEKING AN
ELECTION, AND THE LANGUAGE IN THE EXISTING AGREEMENT WITH RESPECT TO ITS
DURATION WAS FOUND TO BE UNCLEAR TO THE EXTENT THAT EMPLOYEES AND LABOR
ORGANIZATIONS COULD NOT ASCERTAIN FROM THE AGREEMENT THE APPROPRIATE
TIME FOR THE FILING OF REPRESENTATION PETITIONS. IN THE SUBJECT CASE,
HOWEVER, THE PETITION IS THE INCUMBENT LABOR ORGANIZATION WHICH IS
SEEKING AN ELECTION IN A BROADER UNIT WHICH WOULD INCLUDE THE EMPLOYEES
COVERED BY ITS EXISTING NEGOTIATED AGREEMENT AT THE DENVER MINT. IN
VETERANS ADMINISTRATION, A/SLMR NO.240, IT WAS FOUND THAT, "WHERE THERE
IS AN OTHERWISE VALID AGREEMENT WHICH IS TERMINABLE AT WILL, OR WHICH
CONTAINS OTHER DEFECTS WHICH WOULD CAUSE SUCH AGREEMENT NOT TO
CONSTITUTE A BAR TO AN ELECTION SOUGHT BY BY A THIRD PARTY, . . . THE
PARTIES TO SUCH AGREEMENT ARE BOUND BY ITS TERMS ABSENT AN AFFIRMATIVE
ACT OF TERMINATION." WHILE THE VETERANS ADMINISTRATION DECISION INVOLVED
ISSUES RELATED TO ADEQUACY OF SHOWING OF INTEREST, I FIND THAT ITS
RATIONALE NOTED ABOVE IS APPLICABLE TO THE SUBJECT CASE WHICH PRESENTS
ESSENTIALLY THE SAME FACTUAL SITUATION. THUS, IN MY VIEW, IN ORDER FOR
THE UNIT OF EMPLOYEES COVERED BY THE EXISTING AGREEMENT AT THE DENVER
MINT TO BE INCLUDED IN THE UNIT PETITIONED FOR HEREIN, THE AFGE (1) MUST
HAVE ACTED AFFIRMATIVELY TO TERMINATE ITS EXISTING AGREEMENT AND (2)
MUST HAVE INDICATED AFFIRMATIVELY ITS WILLINGNESS TO WAIVE ITS EXCLUSIVE
RECOGNITION STATUS AT THE DENVER FACILITY, AND, IN EFFECT, PUT SUCH
STATUS "ON THE LINE" AT THE ELECTION. /9/ THE RECORD INDICATES CLEARLY
THAT THE FIRST REQUIREMENT WAS NOT MET BY THE AFGE. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE EXISTING NEGOTIATED AGREEMENT COVERING
THE ACTIVITY'S DENVER FACILITY CONSTITUTES A BAR TO THE INCLUSION OF THE
EMPLOYEES AT THAT FACILITY IN THE CLAIMED UNIT.
WITH RESPECT TO THE EXCLUSIVELY RECOGNIZED UNITS OF EMPLOYEES AT THE
PHILADELPHIA AND NEW YORK INSTALLATIONS, THE ACTIVITY CONTENDS THAT THE
NEGOTIATED AGREEMENTS COVERING SUCH EMPLOYEES WERE AWAITING APPROVAL IN
THE OFFICE OF THE DIRECTOR OF THE ACTIVITY AT THE TIME THE PETITION
HEREIN WAS FILED AND, THEREFORE, IN ACCORDANCE WITH SECTION 202.3(C) OF
THE ASSISTANT SECRETARY'S REGULATIONS, /10/ SUCH PETITION WAS BARRED AT
THOSE FACILITIES. HOWEVER, THE RECORD REVEALS THAT NEGOTIATIONS AT THE
LOCAL LEVEL FOR AN AGREEMENT COVERING EMPLOYEES AT THE PHILADELPHIA MINT
WERE NOT COMPLETED AND THERE WAS NO SIGNED AGREEMENT IN EXISTENCE AT THE
TIME THE PETITION IN THE SUBJECT CASE WAS FILED. /11/ FURTHER, THE
RECORD INDICATES THAT WHILE NEGOTIATIONS FOR AN AGREEMENT HAD BEEN
COMPLETED PRIOR TO THE FILING OF THE PETITION HEREIN WITH RESPECT TO THE
NEW YORK ASSAY OFFICE, THE PARTIES AT THE LOCAL LEVEL HAD NOT SIGNED AN
AGREEMENT. IN THIS CONNECTION, IT SHOULD BE NOTED THAT SECTION 202.3(C)
OF THE ASSISTANT SECRETARY'S REGULATIONS, CITED ABOVE, PROVIDES FOR AN
AGREEMENT BAR ONLY IN SITUATIONS WHERE THERE IS "A SIGNED AGREEMENT."
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT NO AGREEMENT BAR EXISTS
WITH RESPECT TO THE SUBJECT PETITION INSOFAR AS IT ENCOMPASSES EMPLOYEES
OF THE PHILADELPHIA MINT AND THE NEW YORK ASSAY OFFICE.
II. APPROPRIATE UNIT
THE ACTIVITY IS COMPOSED OF THE OFFICE OF THE DIRECTOR AND SIX FIELD
INSTALLATIONS LOCATED THROUGHOUT THE COUNTRY, NAMELY: THE U.S. MINT,
PHILADELPHIA, PENNSYLVANIA; THE U.S. MINT, DENVER, COLORADO; THE U.S.
ASSAY OFFICE, SAN FRANCISCO, CALIFORNIA; THE U.S. ASSAY OFFICE, NEW
YORK, NEW YORK; THE U.S. BULLION DEPOSITORY, FORT KNOX, KENTUCKY. IT
APPEARS FROM THE RECORD THAT THE ACTIVITY IS ENGAGED IN SUCH FUNCTIONS
AS THE PRODUCTION OF COINS AND MEDALS, ASSAYING OF METALS, CUSTODY,
PROCESSING AND MOVEMENT OF BULLION, AND THE DISTRIBUTION OF COINS FROM
MINTS TO BANKS.
THE HEADQUARTERS OF THE ACTIVITY-- THE OFFICE OF THE DIRECTOR IN
WASHINGTON, D.C.-- HAS RESPONSIBILITY FOR THE OVERALL MANAGEMENT AND
ADMINISTRATION OF THE ACTIVITY. IN THIS CONNECTION, IT DIRECTS ACTIVITY
OPERATIONS AND ESTABLISHES RULES AND REGULATIONS WHICH ARE APPLICABLE
THROUGHOUT THE ENTIRE ACTIVITY. /12/ THE PHILADELPHIA MINT MANUFACTURES
COINS, MEDALS, AND DIES; THE DENVER MINT MANUFACTURES FOREIGN COINS;
THE SAN FRANCISCO ASSAY OFFICE MANUFACTURES PROOF COINS AND ENGAGED IN
SOME REGULAR COINAGE PRODUCTION; THE NEW YORK ASSAY OFFICE OPERATES A
GOLD AND SILVER REFINERY, WITH ASSAY FACILITIES, AND IS RESPONSIBLE FOR
PACKAGING PROOF AND UNCIRCULATED COINS; THE WEST POINT DEPOSITORY
STORES SILVER BULLION AND SOME COINS; AND THE FORT KNOX DEPOSITORY
STORES GOLD BULLION. IT IS CLEAR THAT SEVERAL OF THE ACTIVITY'S BASIC
OPERATIONS-- E.G., PRODUCTION OF COINS AND MEDALS, ASSAYING OF METALS,
STORAGE OF BULLION-- ARE COMMON TO MORE THAN ONE INSTALLATION. THUS,
THE PHILADELPHIA AND DENVER MINTS HAVE PRODUCED THE SAME TYPES OF COINS
FOR CIRCULATION THROUGH SIMILAR METHODS /13/ AND THE PACKAGING OF PROOF
AND UNCIRCULATED COINS, PREVIOUSLY PERFORMED AT THE SAN FRANCISCO ASSAY
OFFICE, WAS TRANSFERRED RECENTLY TO THE NEW YORK ASSAY OFFICE.
SIMILARLY, PRIOR TO THE REACTIVATION OF THE SAN FRANCISCO ASSAY OFFICE
IN 1965, THE MANUFACTURE OF PROOF COINS WAS PERFORMED AT THE
PHILADELPHIA MINT. /14/ THE NUMISMATIC PROGRAM, WHICH THE EVIDENCE
ESTABLISHES IS AN IMPORTANT SEGMENT OF THE ACTIVITY'S OPERATIONS,
INVOLVES ALL INSTALLATIONS WITH THE EXCEPTION OF THE FORT KNOX
DEPOSITORY. CERTAIN TYPES OF EQUIPMENT ARE MANUFACTURED BY THE BUILDING
AND MAINTENANCE DIVISIONS OF THE DENVER, PHILADELPHIA AND SAN FRANCISCO
FACILITIES FOR SHIPMENT TO THE VARIOUS INSTALLATIONS FOR USE AT THEIR
PARTICULAR OPERATIONS. IN THIS REGARD, THE RECORD REVEALS INSTANCES
WHERE ONE FACILITY HAS TAKEN OVER THE MANUFACTURE OF CERTAIN MACHINERY
IN SITUATIONS WHERE ANOTHER FACILITY WAS UNABLE TO COMPLETE THE JOB
BECAUSE OF AN OVERLOAD OF WORK. ALTHOUGH THE RECORD ESTABLISHES THAT
THE MANUFACTURE OF THE DIES AND COIN BAGS IS CARRIED OUT EXCLUSIVELY IN
THE PHILADELPHIA MINT, SUCH MATERIALS ARE SHIPPED TO THE OTHER
INSTALLATIONS.
EACH INSTALLATION HEAD IS RESPONSIBLE FOR THE DAY-TO-DAY OPERATIONS
OF HIS FACILITY AND HAS BEEN DELEGATED AUTHORITY BY THE ACTIVITY IN
CERTAIN LIMITED AREAS. THE RECORD REVEALS THAT THE LATITUDE OF SUCH
DELEGATED AUTHORITY IS DEFINED CLEARLY IN DETAILED INSTRUCTIONS AND ANY
DIFFERENCES WHICH MAY EXIST BETWEEN PARTICULAR FACILITIES RESULT FROM
THE DEMANDS OF PARTICULAR LOCAL CONDITIONS. /15/ FURTHER, THE RECORD
REVEALS THAT MUCH OF THE DELEGATED AUTHORITY IS SUBJECT TO REVIEW AND
AUDIT BY THE OFFICE OF THE DIRECTOR. ALSO, THE EVIDENCE ESTABLISHES
THAT THE OFFICE OF THE DIRECTOR HAS BEEN CALLED UPON TO AID IN THE
RESOLUTION OF LABOR PROBLEMS AT CERTAIN OF THE FIELD INSTALLATIONS.
THE EVIDENCE ESTABLISHES THAT PERSONNEL, LABOR RELATIONS AND
OPERATING POLICIES OF THE ACTIVITY ARE DETERMINED AT THE NATIONAL LEVEL
IN THE OFFICE OF THE DIRECTOR. IN THIS CONNECTION, REGULATIONS COVERING
SUCH MATTERS AS PROMOTION, LEAVE AND BENEFITS ARE PREPARED AT
HEADQUARTERS AND DISSEMINATED THROUGHOUT THE ACTIVITY. PAY SCALES FOR
ALL THE ACTIVITY'S WAGE GRADE EMPLOYEES ARE ESTABLISHED IN ACCORDANCE
WITH THE GOVERNMENT-WIDE WAGE SYSTEM. SIMILARLY, SALARIES OF GENERAL
SCHEDULE EMPLOYEES ARE FIXED UNDER THE GOVERNMENT-WIDE GENERAL SCHEDULE
PAY SYSTEM. THE RECORD INDICATES ALSO INSTANCES WHERE UNRESOLVED LOCAL
LEVEL LABOR RELATIONS PROBLEMS HAVE BEEN SUBMITTED TO HEADQUARTERS FOR
RESOLUTION AND WHERE HEADQUARTERS OFFICIALS HAVE MET WITH AFGE NATIONAL
OFFICE REPRESENTATIVES TO DISCUSS FIELD INSTALLATION PROBLEMS TO ATTEMPT
TO ARRIVE AT SATISFACTORY RESOLUTIONS. ALSO, THERE HAVE BEEN INSTANCES
WHERE OFFICIALS OF THE OFFICE OF THE DIRECTOR VISITED FIELD
INSTALLATIONS TO WORK OUT DIFFICULT LABOR RELATIONS PROBLEMS.
WHILE THE ACTIVITY'S HEADQUARTERS DOES NOT PARTICIPATE IN
NEGOTIATIONS AT THE LOCAL LEVEL, THE EVIDENCE ESTABLISHES THAT
NEGOTIATED AGREEMENTS ARE FORWARDED, UNSIGNED AND UNDATED, TO
HEADQUARTERS FOR REVIEW AND APPROVAL. AND, ONLY AFTER APPROVAL AT
HEADQUARTERS, IS THE AGREEMENT SIGNED BY THE PARTIES AT THE FACILITY
LEVEL.
THE EMPLOYEES IN THE CLAIMED UNIT FREQUENTLY ARE ENGAGED IN SIMILAR
DUTIES REQUIRING SIMILAR SKILLS, TRAINING, FUNCTIONS AND INTERESTS. FOR
EXAMPLE, THERE ARE PRESSMEN, MACHINE OPERATORS, WEIGHERS, COIN
REVIEWERS, SORTERS AND PACKERS, MECHANICS, LABORERS, STENOGRAPHERS,
CLERK-TYPISTS, ADMINISTRATIVE ASSISTANTS AND ADMINISTRATIVE OFFICERS
EMPLOYED AT SEVERAL OF THE ACTIVITY'S INSTALLATIONS PERFORMING
ESSENTIALLY THE SAME KIND OF WORK. /16/
BASED ON THE FOREGOING CIRCUMSTANCES, AND NOTING THE PROCEDURAL
AGREEMENT BAR MATTERS DISCUSSED UNDER ITEM I ABOVE, I FIND THAT A
RESIDUAL, ACTIVITY-WIDE UNIT OF ALL NONSUPERVISORY EMPLOYEES, INCLUDING
PROFESSIONAL EMPLOYEES, OF THE BUREAU OF THE MINT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. THUS, THE RECORD ESTABLISHES THAT THE
ACTIVITY'S EMPLOYEES HAVE A SIMILAR MISSION AND THAT MANY OF SUCH
EMPLOYEES ARE ENGAGED IN SIMILAR DUTIES REQUIRING SIMILAR SKILLS,
TRAINING, FUNCTIONS AND INTERESTS. MOREOVER, THE EVIDENCE INDICATES
THAT THERE IS AN INTERCHANGE OF WORK AND MATERIALS AMONG THE
INSTALLATIONS AND THAT ACCOMPLISHMENT OF THE MISSION OF THE ACTIVITY
REQUIRES COORDINATED EFFORTS ON THE PART OF EACH OF THE INSTALLATIONS.
IN ADDITION, THE RECORD INDICATES THAT LABOR RELATIONS, PERSONNEL
POLICIES AND BASIC REGULATIONS GOVERNING WORKING CONDITIONS AND
EMPLOYEES' BENEFITS ARE ESTABLISHED AT THE HEADQUARTERS LEVEL. AND
WHILE THERE ARE SOME VARIATIONS WITH RESPECT TO LOCAL CONDITIONS, THE
RECORD SHOWS THAT SUCH DIFFERENCES ARE SUBJECT TO REVIEW AND APPROVAL OR
MODIFICATION BY THE OFFICE OF THE DIRECTOR. IN VIEW OF THE EXTENT OF
HEADQUARTERS INVOLVEMENT IN THE ABOVE NOTED MATTERS, IN MY OPINION, THE
ACTIVITY HAS NOT DEMONSTRATED THAT A RESIDUAL, ACTIVITY-WIDE UNIT WOULD
ADVERSELY AFFECT EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS
OR INHIBIT THE PARTIES FROM NEGOTIATING LOCAL SUPPLEMENTS TO ANY
ACTIVITY-WIDE AGREEMENT. UNDER THESE CIRCUMSTANCES, I FIND THAT THE
EMPLOYEES IN THE CLAIMED UNIT, AS MODIFIED BY THE AGREEMENT BAR FINDINGS
SET FORTH ABOVE UNDER ITEM I, SHARE A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST AND THAT SUCH A UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I FIND THAT THE FOLLOWING
EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED: /17/
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
THE TREASURY, BUREAU OF
THE MINT, EMPLOYED IN THE U.S. ASSAY OFFICE, NEW YORK, NEW YORK; THE
U.S. MINT, PHILADELPHIA,
PENNSYLVANIA; THE U.S. DEPOSITORY, WEST POINT, NEW YORK; THE U.S.
DEPOSITORY, FORT KNOX,
KENTUCKY; AND THE OFFICE OF THE DIRECTOR OF THE BUREAU OF THE MINT,
WASHINGTON, D.C.,
EXCLUDING EMPLOYEES EMPLOYED IN THE U.S. ASSAY OFFICE, SAN FRANCISCO,
CALIFORNIA, AND IN THE
U.S. MINT, DENVER, COLORADO, CONFIDENTIAL EMPLOYEES, TEMPORARY
EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER. /18/
AS NOTED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH EMPLOYEES
WHO ARE NOT PROFESSIONALS UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRES
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I, THEREFORE, SHALL
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
THE TREASURY, BUREAU OF THE MINT, EMPLOYED IN THE U.S. ASSAY OFFICE, NEW
YORK, NEW YORK; THE U.S. MINT, PHILADELPHIA, PENNSYLVANIA; THE U.S.
DEPOSITORY, WEST POINT, NEW YORK; THE U.S. DEPOSITORY, FORT KNOX,
KENTUCKY; AND THE OFFICE OF THE DIRECTOR OF THE BUREAU OF THE MINT,
WASHINGTON, D.C., EXCLUDING EMPLOYEES EMPLOYED IN THE U.S. ASSAY OFFICE,
SAN FRANCISCO, CALIFORNIA, AND IN THE U.S. MINT, DENVER, COLORADO,
NONPROFESSIONAL EMPLOYEES, CONFIDENTIAL EMPLOYEES, TEMPORARY EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
THE TREASURY, BUREAU OF THE MINT, EMPLOYED IN THE U.S. ASSAY OFFICE, NEW
YORK, NEW YORK; THE U.S. MINT, PHILADELPHIA, PENNSYLVANIA; THE U.S.
DEPOSITORY, WEST POINT, NEW YORK; THE U.S. DEPOSITORY, FORT KNOX,
KENTUCKY; AND THE OFFICE OF THE DIRECTOR OF THE BUREAU OF THE MINT,
WASHINGTON, D.C., EXCLUDING EMPLOYEES EMPLOYED IN THE U.S. ASSAY OFFICE,
SAN FRANCISCO, CALIFORNIA, AND THE U.S. MINT, DENVER, COLORADO,
PROFESSIONAL EMPLOYEES, CONFIDENTIAL EMPLOYEES, TEMPORARY EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AFGE.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED BY THE
AFGE. IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP
(A) ARE CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONALS,
THE BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING
GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CASE FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE AFGE WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED ON PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER,
AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF
THE TREASURY, BUREAU OF
THE MINT, EMPLOYED IN THE U.S. ASSAY OFFICE, NEW YORK, NEW YORK; THE
U.S. MINT, PHILADELPHIA,
PENNSYLVANIA; THE U.S. DEPOSITORY, WEST POINT, NEW YORK; THE U.S.
DEPOSITORY, FORT KNOX,
KENTUCKY; AND THE OFFICE OF THE DIRECTOR OF THE BUREAU OF THE MINT,
WASHINGTON, D.C.,
EXCLUDING EMPLOYEES EMPLOYED IN THE U.S. ASSAY OFFICE, SAN FRANCISCO,
CALIFORNIA, AND IN THE
U.S. MINT, DENVER, COLORADO, CONFIDENTIAL EMPLOYEES, TEMPORARY
EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE
ORDER, AS AMENDED:
(A) ALL NONPROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF THE TREASURY,
BUREAU OF THE MINT,
EMPLOYED IN THE U.S. ASSAY OFFICE, NEW YORK, NEW YORK; THE U.S.
MINT, PHILADELPHIA,
PENNSYLVANIA; THE U.S. DEPOSITORY, WEST POINT, NEW YORK; THE U.S.
DEPOSITORY, FORT KNOX,
KENTUCKY; AND THE OFFICE OF THE DIRECTOR OF THE BUREAU OF THE MINT,
WASHINGTON, D.C.,
EXCLUDING EMPLOYEES EMPLOYED AT THE U.S. ASSAY OFFICE, SAN FRANCISCO,
CALIFORNIA, AND THE
U.S. MINT, DENVER, COLORADO, PROFESSIONAL EMPLOYEES, CONFIDENTIAL
EMPLOYEES, TEMPORARY
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
(B) ALL PROFESSIONAL EMPLOYEES OF THE DEPARTMENT OF THE TREASURY,
BUREAU OF THE MINT,
EMPLOYED IN THE U.S. ASSAY OFFICE, NEW YORK, NEW YORK; THE U.S.
MINT, PHILADELPHIA,
PENNSYLVANIA; THE U.S. DEPOSITORY, WEST POINT, NEW YORK; THE U.S.
DEPOSITORY, FORT KNOX,
KENTUCKY; AND THE OFFICES OF THE DIRECTOR OF THE BUREAU OF THE MINT,
WASHINGTON, D.C.,
EXCLUDING EMPLOYEES EMPLOYED IN THE U.S. ASSAY OFFICE, SAN FRANCISCO,
CALIFORNIA, AND THE
U.S. MINT, DENVER, COLORADO, NONPROFESSIONAL EMPLOYEES, CONFIDENTIAL
EMPLOYEES, TEMPORARY
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
DATED, WASHINGTON, D.C.
MAY 16, 1973
/1/ AT THE HEARING IN THIS MATTER, THE HEARING OFFICER REJECTED AN
EXHIBIT OFFERED BY THE ACTIVITY WHICH CONTAINED MINUTES OF VARIOUS
MEETINGS BETWEEN THE ACTIVITY AND REPRESENTATIVES OF CERTAIN LOCALS OF
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED
AFGE. SUCH MEETINGS WERE HELD AT FOUR OF THE ACTIVITY'S INSTALLATIONS
WHERE THE AFGE IS THE EXCLUSIVE BARGAINING REPRESENTATIVE. THE EXHIBIT
WAS OFFERED BY THE ACTIVITY IN CONNECTION WITH ITS CONTENTION THAT THE
ACTIVITY-WIDE UNIT SOUGHT IS INAPPROPRIATE BECAUSE, AMONG OTHER REASONS,
THERE IS A HISTORY OF EFFECTIVE COLLECTIVE BARGAINING AT THE
INSTALLATION LEVEL. IN ALL THE CIRCUMSTANCES, I CONCLUDE THAT THE
EXHIBIT IN QUESTION IS RELEVANT TO THE ISSUES IN THE SUBJECT CASE.
ACCORDINGLY, I REVERSE THE HEARING OFFICER'S RULING AND RECEIVE THE
EXHIBIT INTO THE RECORD. BECAUSE, IN REACHING THE DECISION IN THIS
CASE, I HAVE CONSIDERED THE ENTIRE RECORD, INCLUDING THE EXHIBIT IN
QUESTION, THE HEARING OFFICER'S REJECTION OF THE EXHIBIT AT THE HEARING
IS NOT FOUND TO CONSTITUTE PREJUDICIAL ERROR.
/2/ WHILE THE CLAIMED UNIT INCLUDES PROFESSIONAL EMPLOYEES, THE
RECORD DOES NOT SET FORTH SUFFICIENT FACTS WITH RESPECT TO THEIR DUTIES,
TRAINING, EDUCATIONAL BACKGROUND, ETC., SO AS TO PROVIDE A BASIS FOR A
FINDING THAT EMPLOYEES IN PARTICULAR CLASSIFICATIONS ARE PROFESSIONALS.
ACCORDINGLY, I SHALL MAKE NO FINDINGS AS TO WHICH EMPLOYEE
CLASSIFICATIONS HEREIN CONSTITUTE PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ORDER.
/3/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
TEMPORARY EMPLOYEES WERE DEFINED AS THOSE EMPLOYED FOR UP TO 700 HOURS
WITH NO REASONABLE EXCEPTION OF REAPPOINTMENT.
/4/ AT THE HEARING, THE AFGE TOOK THE ALTERNATIVE POSITION THAT IN
THE EVENT THAT THE ASSISTANT SECRETARY SHOULD FIND THE NEGOTIATED
AGREEMENT COVERING EMPLOYEES AT THE SAN FRANCISCO ASSAY OFFICE TO
CONSTITUTE A BAR, AND IN THE EVENT THE ACTIVITY SHOULD REFUSE TO WAIVE
SUCH AGREEMENT BAR, THE AFGE WOULD MOVE TO AMEND ITS PETITION TO EXCLUDE
THE EMPLOYEES COVERED BY SUCH AGREEMENT FROM THE CLAIMED UNIT.
/5/ THE ACTIVITY MOVED THAT THE AFGE PETITION BE DISMISSED ON THE
GROUNDS THAT THERE WAS NO EVIDENCE ADDUCED THAT THE EXISTING
INSTALLATION-WIDE UNITS WERE INAPPROPRIATE OR THAT THEY DID NOT LEND
THEMSELVES TO EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
UNDER THE CIRCUMSTANCES DESCRIBED BELOW, THE ACTIVITY'S MOTION IS HEREBY
DENIED.
/6/ THE AGREEMENT WAS EXECUTED ON SEPTEMBER 17, 1971, AND PROVIDED
FOR A DURATION OF TWO YEARS FROM THE DATE OF EXECUTION.
/7/ AT THE HEARING, THE ACTIVITY STATED THAT IN THE EVENT THAT THE
ASSISTANT SECRETARY SHOULD FIND THE CLAIMED UNIT APPROPRIATE AND THAT
THE NEGOTIATED AGREEMENTS COVERING EMPLOYEES AT THE DENVER MINT AND THE
NEW YORK ASSAY OFFICE DID NOT CONSTITUTE BARS TO AN ELECTION, " . . .
THE AGENCY WOULD GIVE SERIOUS CONSIDERATION, AND WOULD GO AS FAR AS TO
SAY (IT) PROBABLY WOULD AGREE TO WAIVE THIS BAR IN SAN FRANCISCO IF SUCH
AN AGREEMENT (SIC) IS FOUND APPROPRIATE." IN MY VIEW, THIS STATEMENT BY
THE ACTIVITY DOES NOT DEMONSTRATE A CLEAR AND UNEQUIVOCAL INTENTION TO
WAIVE THE AGREEMENT BAR IN EXISTENCE AT THE SAN FRANCISCO ASSAY OFFICE.
/8/ ARTICLE XXII OF THE AGREEMENT STATES, IN PART: "THE AGREEMENT
WILL BE SUBJECT TO REVIEW ANNUALLY AND ANY PROPOSED CHANGES MUST BE
ANNOUNCED IN WRITING NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE
ANNIVERSARY DATE. SUCH NOTICE MUST BE ACKNOWLEDGED BY THE OTHER PARTY
WITHIN TEN (10) DAYS OF RECEIPT." IT WAS NOTED THAT THIS LANGUAGE IS
IDENTICAL TO THAT CONTAINED IN THE PARTIES'NEGOTIATED AGREEMENT COVERING
EMPLOYEES OF THE PHILADELPHIA MINT WHICH AGREEMENT WAS FOUND NOT TO
CONSTITUTE A BAR TO AN ELECTION SOUGHT BY A THIRD PARTY IN TREASURY
DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, CITED ABOVE.
/9/ DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND, FORT
MONMOUTH, NEW JERSEY, A/SLMR NO. 83, AT FOOTNOTE 2.
/10/ SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS,
EFFECTIVE ON THE DATE OF THE FILING OF THE PETITION IN THE SUBJECT CASE,
PROVIDES, IN PART: "WHEN THERE IS A SIGNED AGREEMENT COVERING A CLAIMED
UNIT, A PETITION FOR EXCLUSIVE RECOGNITION OR OTHER ELECTION PETITION
WILL NOT BE CONSIDERED TIMELY IF FILED DURING THE PERIOD WITHIN WHICH
THAT AGREEMENT IS IN FORCE OR AWAITING APPROVAL AT A HIGHER MANAGEMENT
LEVEL . . . "
/11/ IN THIS CONNECTION, I FIND THAT BY ENTERING INTO NEGOTIATIONS
FOR A NEW AGREEMENT WITH RESPECT TO THE PHILADELPHIA FACILITY, THE
PARTIES INDICATED A CLEAR INTENTION TO TERMINATE THEIR EXISTING
AGREEMENT. COMPARE VETERANS ADMINISTRATION, CITED ABOVE.
/12/ INCLUDED AMONG ITS FUNCTIONS ARE ACCOUNTING AND PHYSICAL AUDITS;
REVIEW OF OPERATING PROCEDURES; IMPLEMENTATION OF THE SAFETY PROGRAM
AND DIRECTION OF THE SECURITY PROGRAM; PRODUCTION PROGRAMS; THE
SCHEDULING OF DISTRIBUTION OF COINS TO THE FEDERAL RESERVE BANKS; MEDAL
DISTRIBUTION; AN ASSAY PROGRAM; FINANCIAL MANAGEMENT; PROCUREMENT;
PROGRAM MANAGEMENT AND EVALUATION; MANAGEMENT ANALYSIS WORK; AND THE
ADMINISTRATION OF PERSONNEL POLICIES AND PROCEDURES.
/13/ THE RECORD REVEALS THAT THE EQUIPMENT IN THE PHILADELPHIA MINT
PLANT IS MORE MODERN AND SOPHISTICATED THAN THAT AT THE DENVER MINT.
/14/ THE RECORD DISCLOSES THAT EQUIPMENT AT THE PHILADELPHIA MINT IS
BEING READIED IN ANTICIPATION OF THE POSSIBLE REINSTITUTION OF THIS
OPERATION AT THAT LOCATION. WHILE THE RECORD ESTABLISHES THAT THE
METHOD OF PRODUCING PROOF COINS REQUIRES MORE CARE AND ADDITIONAL STEPS
THAN THAT REQUIRED IN THE MANUFACTURE OF DOMESTIC COINS, IT ALSO
DISCLOSES THAT WITH 30 TO 90 DAYS TRAINING, EMPLOYEES FROM OTHER
INSTALLATIONS ENGAGED IN THE MANUFACTURE OF DOMESTIC COINS ARE ABLE TO
ATTAIN THE NECESSARY SKILL LEVEL TO PERFORM SUCH WORK SATISFACTORILY.
/15/ THE ACTIVITY'S PERSONNEL OFFICER INDICATED THAT THERE IS AN
OVERALL PROMOTION PLAN FOR THE ACTIVITY, BUT THAT AGREEMENTS
SUPPLEMENTING SUCH PLAN MAY VARY FROM INSTALLATION TO INSTALLATION.
/16/ IT WAS NOTED THAT WHEN THE SAN FRANCISCO ASSAY OFFICE WAS
REACTIVATED, THE ACTIVITY FOUND IT NECESSARY TO RECRUIT ON AN
ACTIVITY-WIDE BASIS IN ORDER TO ACQUIRE EXPERIENCED PERSONNEL, AND
CERTAIN EMPLOYEES TRANSFERRED TO SAN FRANCISCO FROM OTHER INSTALLATIONS.
/17/ AT THE OUTSET OF THE HEARING, THE PARTIES STIPULATED THAT
CERTAIN EMPLOYEES SHOULD BE EXCLUDED FROM THE UNIT ON THE BASIS THAT
THEY ARE CONFIDENTIAL EMPLOYEES, SUPERVISORY EMPLOYEES, MANAGEMENT
OFFICIALS OR TEMPORARY EMPLOYEES. AS THERE IS NO EVIDENCE IN THE RECORD
TO INDICATE THAT THE PARTIES' STIPULATION WAS IMPROPER, I FIND THAT SUCH
EMPLOYEES WHOULD BE EXCLUDED FROM THE UNIT FOUND TO BE APPROPRIATE.
/18/ I FIND THAT BY PETITIONING FOR EXCLUSIVE RECOGNITION AND
PROCEEDING TO AN ELECTION IN THE UNIT FOUND APPROPRIATE, THE AFGE WILL
HAVE, IN EFFECT, WAIVED ITS EXCLUSIVE REPRESENTATION STATUS WITH RESPECT
TO EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNITS ENCOMPASSED BY THE UNIT
FOUND APPROPRIATE HEREIN. ACCORDINGLY, THE AFGE MAY CONTINUE TO
REPRESENT THOSE EMPLOYEES ON AN EXCLUSIVE BASIS ONLY IN THE EVENT IT IS
CERTIFIED IN THE UNIT FOUND APPROPRIATE IN THE SUBJECT CASE. SEE
DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH,
NEW JERSEY, A/SLMR NO. 83 AT FOOTNOTE 2.
3 A/SLMR 261; P. 175; CASE NO. 72-3121(26); APRIL 30, 1973.
U.S. DEPARTMENT OF AIR FORCE,
NORTON AIR FORCE BASE
A/SLMR NO. 261
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1485 (COMPLAINANT)
AGAINST THE U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE
(RESPONDENT). THE COMPLAINANT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY REFUSING TO CONSULT,
CONFER, OR NEGOTIATE WITH THE COMPLAINANT OVER THE IMPACT OF A CHANGE IN
THE TOUR OF DUTY OF CIVILIAN GUARDS ASSIGNED TO THE "GRAVEYARD" SHIFT.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT WHILE UNDER SECTION 11(B) OF THE ORDER THERE WAS NO
OBLIGATION TO MEET AND CONFER ON THE RESPONDENT'S DECISION TO ELIMINATE
THE CIVILIAN GUARDS' "GRAVEYARD" SHIFT, THE IMPACT OF SUCH A CHANGE WAS
SUBJECT TO NEGOTIATIONS. IN THIS LATTER REGARD, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S DETERMINATION THAT SUBSEQUENT TO
THE DATE THE COMPLAINANT RECEIVED NOTIFICATION OF THE RESPONDENT'S
INTENT TO CHANGE THE GRAVEYARD SHIFT, BUT PRIOR TO THE ACTUAL
IMPLEMENTATION OF THE CHANGE, THE COMPLAINANT HAD AMPLE OPPORTUNITY TO
REQUEST BARGAINING ON THE IMPACT BUT FAILED TO DO SO. IN THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE
LAW JUDGE'S DETERMINATION THAT THE COMPLAINT HEREIN BE DISMISSED.
WITH A VIEW TOWARD FOSTERING AND AFFORDING AN ATMOSPHERE CONDUCIVE TO
THE SETTLEMENT OF UNFAIR LABOR PRACTICE ALLEGATIONS, THE ASSISTANT
SECRETARY FOUND THAT THE ADMINISTRATIVE LAW JUDGE ERRONEOUSLY ADMITTED
INTO EVIDENCE AN OFFER OF SETTLEMENT BY THE RESPONDENT WHICH ALLEGEDLY
CONTAINED AN ADMISSION AGAINST INTEREST. ACCORDINGLY, THE ASSISTANT
SECRETARY DID NOT CONSIDER SUCH OFFER IN REACHING A DECISION IN THIS
MATTER.
U.S. DEPARTMENT OF AIR FORCE,
NORTON AIR FORCE BASE
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1485
ON JANUARY 24, 1973, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. THEREAFTER, BOTH PARTIES FILED EXCEPTIONS
AND SUPPORTING BRIEFS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. EXCEPT AS MODIFIED BELOW, THE RULINGS
OF THE ADMINISTRATIVE LAW JUDGE ARE HEREBY AFFIRMED. /1/ UPON
CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEFS, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS, AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE. /2/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-3121(26) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 30, 1973
/1/ THE RESPONDENT EXCEPTED TO THE ADMINISTRATIVE LAW JUDGE'S RULING
ADMITTING INTO EVIDENCE AN OFFER OF SETTLEMENT BY THE RESPONDENT, SET
FORTH IN AN AUGUST 30, 1972, LETTER TO A REPRESENTATIVE OF THE
COMPLAINANT, WHICH ALLEGEDLY CONTAINED AN ADMISSION AGAINST INTEREST.
CONTRARY TO THE RULING OF THE ADMINISTRATIVE LAW JUDGE, IF FIND THAT THE
RESPONDENT'S OFFER OF SETTLEMENT IN THIS MATTER SHOULD NOT HAVE BEEN
ADMITTED INTO EVIDENCE. THUS, IN ORDER TO FOSTER AND AFFORD AN
ATMOSPHERE CONDUCIVE TO THE SETTLEMENT OF UNFAIR LABOR PRACTICE
ALLEGATIONS, IT IS CONSIDERED BENEFICIAL AND NECESSARY TO ASSURE TO THE
PARTIES INVOLVED IN SETTLEMENT DISCUSSIONS THAT MATTERS RAISED IN
CONNECTION WITH THEIR DELIBERATIONS ULTIMATELY WILL NOT BE ADMITTED INTO
EVIDENCE. IN MY VIEW, A CONTRARY POLICY NECESSARILY WOULD INHIBIT THE
SETTLEMENT OF UNFAIR LABOR PRACTICE ALLEGATIONS AND THEREBY POSSIBLY
ENCOURAGE NEEDLESS LITIGATION. SUCH A RESULT WOULD BE INCONSISTENT WITH
THE PURPOSES AND POLICIES OF THE ORDER. UNDER THESE CIRCUMSTANCES, IN
REACHING A DECISION IN THIS MATTER NO CONSIDERATION HAS BEEN GIVEN TO
THE OFFER OF SETTLEMENT AND THE ALLEGED ADMISSION AGAINST INTEREST
CONTAINED IN THE RESPONDENT'S LETTER OF AUGUST 30, 1972.
/2/ CF. UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY,
NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106.
U.S. DEPARTMENT OF AIR FORCE
NORTON AIR FORCE BASE
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1485
JOSEPH L. FULLER, MAJOR, USAF
OFFICE OF THE STAFF JUDGE ADVOCATE
NORTON AIR FORCE BASE, CALIFORNIA
AND
NOLAN SKULTE, CAPTAIN, USAF
OFFICE OF THE JUDGE ADVOCATE GENERAL
WASHINGTON, D.C., ON THE
BRIEF FOR RESPONDENT.
NEAL H. FINE, ESQUIRE
ASSISTANT TO THE STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, WASHINGTON, D.C.,
FOR COMPLAINANT.
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING, HEARD IN LOS ANGELES, CALIFORNIA, ON SEPTEMBER 13,
1972, ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER CALLED
THE ORDER) PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON JULY
10, 1972, BY THE REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES
ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, SAN FRANCISCO REGION,
IN ACCORDANCE WITH SECTION 203.8 OF THE REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS (HEREINAFTER CALLED THE
ASSISTANT SECRETARY). THE COMPLAINT, FILED ON FEBRUARY 7, 1972 BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES ON BEHALF OF LOCAL 1485,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (BOTH HEREINAFTER JOINTLY
CALLED COMPLAINANT) ALLEGES THAT THE UNITED STATES DEPARTMENT OF AIR
FORCE FACILITY AT NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA
(HEREINAFTER CALLED RESPONDENT OR THE FACILITY) VIOLATED SECTIONS
19(A)(6) AND (1) OF THE ORDER BY REMOVING SIX POLICEMEN FROM THE
"GRAVEYARD" SHIFT WITHOUT PROPER NEGOTIATION AND CONSULTATION WITH LOCAL
1485, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (HEREINAFTER CALLED
THE UNION), WHICH WAS THE EXCLUSIVE COLLECTION BARGAINING REPRESENTATIVE
OF THE EMPLOYEES INVOLVED. AT THE OPENING OF THE HEARING COUNSEL FOR
COMPLAINANT NARROWED THE SCOPE OF THE COMPLAINT BY ACKNOWLEDGING THAT
RESPONDENT WAS UNDER NO DUTY TO NEGOTIATE WITH THE UNION ON THE CHANGE
OF THE TOUR OF DUTY OF THE "GRAVEYARD" SHIFT EMPLOYEES BUT MAINTAINED,
NEVERTHELESS, THAT RESPONDENT WAS UNDER AN OBLIGATION TO NEGOTIATE WITH
THE UNION ON THE IMPACT OF THE CHANGE ON THE EMPLOYEES INVOLVED.
COMPLAINANT DOES NOT ALLEGE ANY INDEPENDENT VIOLATION OF SECTION
19(A)(1) OF THE ORDER BUT CONTENDS THAT A VIOLATION OF SECTION 19(A)(1)
DERIVES FROM THE ALLEGED VIOLATION OF SECTION 19(A)(6).
AT THE HEARING ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY. ORAL ARGUMENT WAS WAIVED AND
BRIEFS WERE FILED BY BOTH PARTIES.
UPON THE ENTIRE RECORD /1/ IN THIS MATTER, FROM MY READING OF THE
BRIEFS AND FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I
MAKE THE FOLLOWING:
SINCE AUGUST 6, 1968, THE UNION HAS BEEN THE EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE FOR ALL CIVILIAN EMPLOYEES IN THE 63RD
SECURITY POLICE SQUADRON AT NORTON AIR FORCE BASE. AT THE TIME OF THE
HEARING A COLLECTIVE BARGAINING CONTRACT HAD NOT BEEN NEGOTIATED.
PRIOR TO NOVEMBER, 1971, THE UNIT EMPLOYEES INCLUDED A TOTAL OF
APPROXIMATELY 23 TO 25 GUARDS WHO WORKED ON THREE FLIGHTS OR SHIFTS.
THE "GRAVEYARD" SHIFT TOUR OF DUTY CONSISTED OF ONE GS-7 SUPERVISOR AND
FIVE GS-5 PATROLMEN. IT BEGAN AT APPROXIMATELY 11:00 P.M. AND CONTINUED
TO 7:00 A.M. THE FOLLOWING DAY. "GRAVEYARD" SHIFT EMPLOYEES RECEIVED A
10% NIGHT DIFFERENTIAL AND 25% PREMIUM PAY FOR SATURDAY-SUNDAY SHIFTS.
THUS THE "GRAVEYARD" SHIFT EMPLOYEES EARNED APPROXIMATELY $40 TO $50 A
PAY CHECK MORE THAN THOSE GUARDS WORKING ON OTHER TOURS OF DUTY.
EARLY IN SEPTEMBER, 1971, /2/ EUGENE N. STITES, OPERATIONS OFFICER
FOR THE 63RD SECURITY SQUADRON, WAS NOTIFIED BY THE BASE COMPTROLLER
THAT THE CIVILIAN PAYROLL IN THE SECURITY GROUP WAS EXCESSIVE. AT THAT
TIME, THE CIVILIAN PAYROLL WAS ONLY 95% "FUNDED" AND ACCORDINGLY HAD TO
BE REDUCED BY 5% TO MEET THE 95% ALLOCATION. IN ORDER TO ACHIEVE THIS
OBJECTIVE THE BASE COMPTROLLER DIRECTED THAT THE 25% SATURDAY-SUNDAY
PREMIUM BEING PAID TO THE "GRAVEYARD" SHIFT GUARDS BE REDUCED.
THEREAFTER, AROUND SEPTEMBER 17, STITES MET WITH SECURITY POLICE
SQUADRON COMMANDER LT. COLONEL R. S. ESPIRITU AND DISCUSSED THE MATTER
OF REDUCING PREMIUM PAY. AT THIS MEETING STITES PROPOSED THAT THE
"GRAVEYARD" SHIFT BE DISCONTINUED. ON SEPTEMBER 17, STITES SENT A
LETTER /3/ TO GLENN D. RAHR, PRESIDENT OF THE UNION, REQUESTING THAT A
"MANAGEMENT-UNION CONSULTATION MEETING" BE SCHEDULED FOR SEPTEMBER 24.
THE LETTER, RECEIVED BY RAHR ON SEPTEMBER 21, STATED:
1. WE PROPOSE TO CONDUCT A CONSULTATION MEETING AT 1500 HOURS, 24
SEPTEMBER 1971, AT BLDG. 608. YOU AND ONE ELECTED OFFICIAL ARE INVITED
TO ATTEND.
2. TOPIC PROPOSED FOR CONSULTATION IS WORKING HOURS FOR THE CIVILIAN
SECURITY POLICEMEN.
3. IF THE ABOVE DATE AND TIME ARE NOT CONVENIENT, PLEASE CONTACT THE
UNDERSIGNED.
ON SEPTEMBER 24, THE SCHEDULED MEETING WAS HELD. VARIOUS
REPRESENTATIVES OF THE FACILITY AND THE UNION WERE PRESENT INCLUDING
STITES, CAPT.KEWIN, JAG OFFICER, AND MR. GEORGE N. PIERCE OF THE
CIVILIAN PERSONNEL OFFICE, ALL OF WHOM REPRESENTED THE FACILITY. RAHR
AND MR. WERNER SCHALLER, A DAY SHIFT GUARD AND STEWARD FOR LOCAL 1485,
REPRESENTED THE UNION. STITES AND RAHR WERE THE CHIEF SPOKESMEN. THE
MEETING LASTED APPROXIMATELY FORTY MINUTES. EXCEPT FOR RESPONDENT'S
LETTER TO THE UNION OF SEPTEMBER 17, THE UNION REPRESENTATIVES HAD NO
PRIOR INFORMATION AS TO THE MATTERS TO BE DISCUSSED AT THE MEETING.
WHILE SOME DIFFERENCES EXIST IN THE EVIDENCE AS TO WHAT WAS SAID AT
THE MEETING OF SEPTEMBER 24, THERE IS SUBSTANTIAL AGREEMENT IN THE
ESSENTIALS OF THE DISCUSSION. I BELIEVE THAT MANY OF THE VARIANCES
ARISE PRIMARILY FROM FAILURE OF MEMORY IN ATTEMPTING TO RECONSTRUCT A
DISCUSSION WHICH TOOK PLACE APPROXIMATELY ONE YEAR PRIOR TO THE TIME OF
THE HEARING. IN ANY EVENT, VIEWED AS A WHOLE, I FIND THAT THE EVIDENCE
ESTABLISHES THAT AT THE MEETING /4/ THE UNION WAS INFORMED BY STITES
THAT THE "GRAVEYARD" SHIFT WAS BEING ELIMINATED EFFECTIVE OCTOBER 16,
SINCE THE CIVILIAN PAYROLL WAS ONLY 95% FUNDED. /5/ A SAVING WOULD BE
REALIZED THROUGH THE ELIMINATION OF THE NIGHT SHIFT DIFFERENTIAL AND THE
SATURDAY-SUNDAY PREMIUM PAY. OF THE SEVEN GUARDS COMPRISING THE
"GRAVEYARD" SHIFT, THREE WERE TO BE TRANSFERRED TO THE DAY SHIFT AND
THREE TO THE "SWING" SHIFT. THE SEVENTH EMPLOYEE, A GRADE GS-7
SERGEANT, WOULD ALSO BE TRANSFERRED TO ANOTHER SHIFT AND HIS TRANSFER
WOULD POSSIBLY RESULT IN HIS OR ANOTHER GS-7 SERGEANT WITH LESS
SENIORITY BEING REDUCED TO A GS-5 PATROLMAN. RAHR, WHO PREVIOUSLY
WORKED AS A "GRAVEYARD" SHIFT GUARD, ASKED HOW IT WOULD BE DETERMINED TO
WHICH SHIFT THE INDIVIDUALS WOULD BE TRANSFERRED AND RAISED THE QUESTION
OF SENIORITY. STITES REPLIED THAT HE WOULD ASK FIRST FOR VOLUNTEERS AND
IF THAT DID NOT RESOLVE THE MATTER, THE GUARDS WOULD BE GIVEN THEIR
CHOICE BY SENIORITY. A LETTER TO THE INDIVIDUALS EXPLAINING THE
NECESSITY FOR THE CHANGE WAS GOING TO BE SENT TO THE AFFECTED EMPLOYEES
EXPLAINING THE NECESSITY FOR THE CHANGE. RAHR ASKED WHETHER THIS WAS TO
BE HANDLED AS A REDUCTION IN FORCE (RIF). THE MANAGEMENT
REPRESENTATIVES INFORMED RAHR THAT THEY WERE NOT SURE BUT WOULD CHECK
INTO THE MATTER. WHEN RAHR QUESTIONED STITES AS TO WHAT HE THOUGHT
WOULD BE THE BIGGEST COMPLAINT OF THE EMPLOYEES BEING TRANSFERRED,
STITES REPLIED "THE LOSS OF PREMIUM PAY." RAHR ASKED WHERE THE SPECIFIC
"AUTHORITY" FOR THE ACTION CAME FROM AND WAS TOLD BY STITES, AFTER
REPEATED QUESTIONING, THAT IT WAS A DECISION OF THE BASE COMPTROLLER OR
HIS OFFICE. /6/ RAHR ANNOUNCED HE WOULD SEND A LETTER REQUESTING THE
INFORMATION WITH REGARD TO THE "AUTHORITY" FOR THE ACTION IN WRITING SO
HE COULD "CHECK THIS OUT." RAHR ALSO REMINDED THE FACILITY
REPRESENTATIVES THAT IN A SITUATION SUCH AS THIS, THE EMPLOYEES WERE
NORMALLY GIVEN A TWO-WEEK NOTICE PRIOR TO THE CHANGE. STITES SAID HE
WOULD LOOK INTO THE MATTER AND COMMENTED THAT THE FACILITY WAS SENDING
OUT NOTICES IMMEDIATELY OR WITHIN A WEEK. ONE OF THE FACILITY
REPRESENTATIVES REMARKED THAT SUPERVISORS HAD INFORMALLY TALKED TO THE
EMPLOYEES INVOLVED AND THEY HAD NOT RECEIVED ANY OBJECTIONS DURING THE
DISCUSSIONS. RAHR STATED THAT UNLESS THE EMPLOYEES OBJECTED, HE DIDN'T
SEE ANY TROUBLE AS FAR AS THE UNION WAS CONCERNED. RAHR ASKED IF
PATROLMEN WOULD BE PAID OVERTIME IF THEY WERE RELIEVED LATE AND WAS TOLD
THAT THE GUARDS WERE BEING RELIEVED ON TIME, SO THIS WOULD NOT BE A
PROBLEM. WHEN RAHR QUESTIONED WHETHER THE POSITIONS TO BE ELIMINATED
WOULD BE CONVERTED TO MILITARY POSITIONS STITES REPLIED IN THE NEGATIVE.
AS THE MEETING CONCLUDED, RAHR VOICED PERSONAL DISAPPROVAL OF THE
PRESIDENT'S POLICY OF CUTTING BACK OF CIVILIAN EMPLOYMENT BY 5% WHICH HE
UNDERSTOOD TO BE RELATED TO THE ELIMINATION OF THE "GRAVEYARD" SHIFT.
AFTER EXPRESSING HIS DISAGREEMENT WITH THE "PRESIDENT'S WAGE-PRICE
FREEZE" RAHR EXPLAINED THE AFGE NATIONAL UNION'S OPPOSITION TO THE
FREEZE AND WHAT IT WAS DOING TO CONGRESS.
IMMEDIATELY AFTER THE CONCLUSION OF THE MEETING, SCHALLER CONTACTED
"SWING" SHIFT GUARDS AND ASKED THEM TO NOTIFY "GRAVEYARD" SHIFT GUARDS
OF THE FACILITY'S INTENTION TO ELIMINATE THE SHIFT. THEREAFTER,
BEGINNING ON SEPTEMBER 26, THE UNION BEGAN RECEIVING COMPLAINTS FROM THE
INDIVIDUALS INVOLVED IN THE REMOVAL.
ONE OR TWO DAYS AFTER THE MEETING OF SEPTEMBER 24 STITES MET WITH LT.
COLONEL ESPIRITU AND DISCUSSED WHAT HAD TRANSPIRED IN THE MEETING.
COLONEL ESPIRITU DECIDED THAT IF THERE WAS NO STRONG OBJECTION MADE BY
THE UNION OR EMPLOYEES, THE FACILITY WOULD PROCEED WITH THE ELIMINATION
OF THE "GRAVEYARD" SHIFT.
IN A LETTER DATED SEPTEMBER 28, /7/ TO JACK V. COMPTON, CHIEF,
CIVILIAN PERSONNEL OFFICE, NORTON AFB, RAHR REVIEWED VARIOUS MATTERS
DISCUSSED AT THE SEPTEMBER 24 MEETING AND SOUGHT DOCUMENTATION OF THE
AUTHORITY FOR THE ELIMINATION. THE LETTER STATED INTER ALIA:
"THE MAIN TOPIC DISCUSSED WAS THE DISCONTINUANCE OF THE CIVILIAN
GRAVEYARD GS-7 AND FIVE CIVILIAN PATROLMEN IN GRADE OF GS-5'S. THESE
SIX EMPLOYEES WOULD BE DIVIDED UP AND THREE GS-5'S BEING PLACED ON THE
DAY SHIFT AND THREE GS-5'S BEING PLACED ON THE SWING SHIFT. THE GS-7
SGT SUPERVISOR BEING PLACED IN A RIF STATUS AND REDUCED TO THE GRADE OF
GS-5 PATROLMAN. THE FUTURE GRAVEYARD SHIFT TO BE ALL MILITARY IN ORDER
THAT THE SQUADRON COULD SAVE 10 PER CENT NIGHT DIFFERENTIAL ON SIX
CIVILIAN EMPLOYEES, ALSO WOULD SAVE SATURDAY AND SUNDAY PREMIUM PAY.
"I AM AT THIS TIME REQUESTING A COPY OF THE LETTER OR LETTERS FROM
HIGHER AUTHORITY WHICH REQUEST THIS ACTION BE TAKEN WITHIN THE 63RD
SECURITY POLICE SQUADRON. A REQUEST WAS MADE TO MR. EUGENE N. STITES AT
THE CONSULTATION MEETING BUT HE REFUSED TO GIVE THE AUTHORITY AND/OR A
COPY OF THE LETTER DIRECTING SUCH ACTIONS."
COMPTON, BY LETTER DATED OCTOBER 12, /8/ WHICH COMPLAINANT RECEIVED
ON THAT SAME DAY, REPLIED TO RAHR AS FOLLOWS:
1. REFERENCE YOUR LETTER OF 28 SEP 1971, SUBJECT AS ABOVE.
2. THE ACTION TO DISCONTINUE THE CIVILIAN GRAVEYARD SHIFT WAS
INITIATED BY THE SQUADRON COMMANDER AND PROMPTED BY THE FACT THAT THE
BUDGET FOR THE 63RD MILITARY AIRLIFT WING IS NOT SUFFICIENT TO PROVIDE
FUNDING FOR ALL CIVILIAN AUTHORIZATIONS. AS DISCUSSED IN OUR QUARTERLY
CONSULTATION MEETING OF 26 AUG 1971, FUNDS ALLOCATED BY HQ MAC FOR
DIRECT HIRE OF CIVILIAN MAN-YEARS WITHIN THE O&M FUND AREA HAVE SUFFERED
A FIVE PER CENT REDUCTION DURING THIS FISCAL YEAR.
3. THE DISCONTINUANCE OF THE CIVILIAN GRAVEYARD SHIFT OPERATION WILL
NOT AFFECT THE SQUADRON'S OVERALL CIVILIAN-MILITARY MANNING MIX.
ADDITIONALLY, ALL PROPOSED INDIVIDUAL PERSONNEL CHANGES, WITH THE
EXCEPTION OF A SUPERVISORY POSITION, WILL BE EFFECTED THROUGH ABSORPTION
OF THE INDIVIDUALS INTO OTHER SHIFT OPERATIONS. IN THE INSTANCE OF THE
SUPERVISORY POSITION, EVERY REASONABLE EFFORT POSSIBLE WILL BE EXERTED
TO RETAIN THE GRADE OF THE INDIVIDUAL. /9/
ON OR ABOUT OCTOBER 12, A LETTER /10/ SIGNED BY LT. COLONEL ESPIRITU
WAS SENT TO THE "GRAVEYARD" SHIFT EMPLOYEES NOTIFYING THEM OF THEIR
REASSIGNMENT TO DAY AND SWING SHIFT OPERATIONS COMMENCING DURING THE
WEEK OF OCTOBER 24. /11/ THE LETTER STATED AS FOLLOWS:
1. AS A RESULT OF RECENT REDUCTIONS IN O&M FUND ALLOCATIONS FOR 63RD
MILITARY AIRLIFT WING OPERATIONS, IT HAS BECOME NECESSARY TO EXPLORE ALL
POSSIBLE METHODS FOR CONSERVING FUNDS. A REVIEW OF OUR PRESENT SHIFT
OPERATION ARRANGEMENTS INDICATES THAT A MORE EFFICIENT AND ECONOMICAL
ARRANGEMENT CAN BE EFFECTED WITHIN THE SQUADRON.
2. ACCORDINGLY, DURING THE WEEK OF 24 OCT 1971, PERSONNEL PRESENTLY
ASSIGNED TO GRAVEYARD SHIFT WILL BE REASSIGNED TO DAY AND SWING SHIFT
OPERATIONS. THREE INDIVIDUALS WILL BE ASSIGNED TO DAY SHIFT AND THREE
TO SWING SHIFT. EXCLUDING AN EMERGENCY SITUATION, NO GRAVEYARD SHIFT
COMPRISED OF CIVILIAN PERSONNEL WILL BE ESTABLISHED. WITH THE EXCEPTION
OF A SUPERVISORY POSITION, ALL CHANGES IN SHIFT ASSIGNMENTS WILL BE
EFFECTED WITHOUT ANY CHANGE IN PRESENT GRADE LEVELS.
3. YOU ARE REQUESTED TO SUBMIT A FIRST AND SECOND CHOICE OF
ASSIGNMENT. FIRST CHOICES WILL BE SELECTED ON A SENIORITY BASIS.
SECOND CHOICE WILL BE ASSIGNED TO COMPLETE THE ABOVE RATIO.
4. I RECOGNIZE THAT THE CHANGE IN SHIFT OPERATIONS MAY CREATE SOME
TEMPORARY INCONVENIENCES BUT AM CERTAIN THAT YOU WILL UNDERSTAND AND
SUPPORT THE NECESSITY FOR LIVING WITHIN THE REDUCED FUND CEILING.
ON OCTOBER 14 THE UNION FILED AN UNFAIR LABOR PRACTICE WITH THE
COMMANDER OF THE 63RD POLICE SQUADRON ALLEGING VIOLATION OF SECTIONS
19(A)(1), (2), (3), (4), (5), AND (6) AND SECTION 11 OF THE ORDER. /12/
HOWEVER, THE ALLEGATIONS OF VIOLATION OF SECTIONS 19(A)(2), (3), (4),
AND (5) WERE SUBSEQUENTLY WITHDRAWN. THE ORIGINAL CHARGE, AS IT APPLIES
TO THE ELIMINATION OF THE "GRAVEYARD" SHIFT SPEAKS ONLY IN TERMS OF
REMOVAL OF THE EMPLOYEES AND DOES NOT MENTION IN ANY RESPECT THE
FACILITY'S ALLEGED REFUSAL TO BARGAIN WITH REGARD TO THE IMPACT OF THE
ELIMINATION ON THESE EMPLOYEES.
REPRESENTATIVES OF THE FACILITY AND THE UNION MET ON NOVEMBER 3 IN AN
UNSUCCESSFUL ATTEMPT TO INFORMALLY RESOLVE THE DISPUTE. THE UNION'S
OVERRIDING CONCERN AT THIS MEETING WAS TO HAVE THE FACILITY WITHDRAW ITS
DECISION TO ELIMINATE THE "GRAVEYARD" SHIFT. RESPONDENT REFUSED, LT.
COLONEL ESPIRITU TAKING THE POSITION THAT HE WOULD NOT REVERSE HIS
DECISION BECAUSE HE DIDN'T WANT TO SHOW THAT THE FACILITY HAD BEEN
WRONG. THUS THE TESTIMONY OF RAHR, /13/ THE ONLY WITNESS WHO TESTIFIED
ABOUT THIS MEETING, REVEALS THE FOLLOWING:
Q. WHAT WAS SAID NOW. YOU HAVE CHARACTERIZED IT AS WE DISCUSSED.
WHAT WAS SAID" WHO SAID WHAT, WHAT THE RESPONSES WERE, ET CETERA.
A. I DON'T REMEMBER EXACTLY WHO BROUGHT OUT ANY SPECIFIC ITEMS AT
THAT MEETING OTHER THAN-- I RECALL THE GENERAL DISCUSSION OF WHAT TOOK
PLACE AT THAT MEETING.
Q. ALL RIGHT. WOULD YOU GIVE US YOUR RECOLLECTION AS TO WHAT THE
UNION PEOPLE WERE SAYING AND WHAT THE FACILITY WAS SAYING.
A. THE UNION PEOPLE WERE SAYING IF WE SHOULD HAVE BEEN GIVEN A PRIOR
NOTICE OF MANAGEMENT'S INTENT SO THAT WE COULD SIT DOWN AND COME UP WITH
THE VIEWS OF THE UNION AND SUBMIT TO MANAGEMENT OUR POSITION OF WHY
THESE PEOPLE SHOULD NOT HAVE BEEN REMOVED FROM THE GRAVEYARD SHIFT, WE
WOULD MEET THE WORD "CONSULTING,"
Q. ALL RIGHT. CONTINUE.
A. THE ONLY OTHER MAJOR TOPIC THAT I REMEMBER--
Q. WHAT WAS THE POSITION OF THE FACILITY?
A. I DON'T REMEMBER WHAT THEIR ANSWER WAS. JUST HOW THEY PUT IT AT
THIS TIME.
Q. ALL RIGHT. WHAT ELSE WAS DISCUSSED?
A. THE OTHER PART DISCUSSED-- WE CALLED COLONEL ESPIRITU TO THE
MEETING FOR THE PURPOSE OF GOING OVER THIS WITH HIM TO TRY TO GET THE
COMMANDER TO RECONSIDER TO PUT THESE PEOPLE BACK ON THE GRAVEYARD SHIFT.
Q. WHO WAS ESPIRITU NOW?
A. HE WAS THE COMMANDER OF THE 63RD POLICE SQUADRON, LT. COLONEL.
Q. DID COLONEL ESPIRITU FINALLY COME TO THE MEETING?
A. YES, SIR.
Q. WHAT TOOK PLACE WHEN THE MEETING RESUMED?
A. WE DISCUSSED WITH THE COLONEL OUR VIEWS OF WHY THESE PEOPLE
SHOULD BE PUT BACK AND AT THIS TIME THE COLONEL MADE A STATEMENT THAT HE
WAS GOING TO STAND ON THEIR DECISION AND THAT HE DID NOT-- LET'S SEE.
HOW DID HE WORD IT? SOMETHING TO THE EFFECT THAT HE DIDN'T WANT TO SHOW
THAT THEY HAD BEEN WRONG IN TAKING THIS ACTION. HIS EXACT WORDS, I
DON'T REMEMBER JUST HOW IT WAS.
Q. DO YOU RECALL ANYTHING ELSE?
A. NOT ANY OTHER SPECIFIC ITEMS, NO, SIR.
THEREAFTER, ON FEBRUARY 7, 1972, THE UNION FILED THE COMPLAINT IN THE
INSTANT MATTER AGAINST RESPONDENT ALLEGING INTER ALIA ". . . IT IS
CHARGED THAT AT THE TIME OF THIS MEETING (SEPTEMBER 24, 1971) MANAGEMENT
HAD ALREADY MADE UP ITS DECISION IN REGARD TO REMOVING THESE EMPLOYEES
FROM THIS SHIFT AND WAS ONLY INFORMING THE LOCAL OF THE COMPLETED ACTION
. . ." AND ".. . BY REFUSING TO PROPERLY CONSULT WITH LOCAL 1485
MANAGEMENT HAS VIOLATED SECTION 10(E) AND SECTION 11 OF THE EXECUTIVE
ORDER BY FAILING TO CONFER IN GOOD FAITH WITH RESPECT TO WORKING
CONDITIONS, PERSONNEL POLICIES AND PRACTICES OF THE EMPLOYEES IN THE
EXCLUSIVE UNIT WITH THE EXCLUSIVE BARGAINING AGENT. CONSULTATION AND
GOOD FAITH REQUIRE CONSULTATION BEFORE A DECISION IS MADE AND NOT AFTER
A DECISION IS MADE . . ."
AT THE HEARING COMPLAINANT CONCEDED THAT THE DECISION OF THE FEDERAL
LABOR RELATIONS COUNCIL IN THE PLUM ISLAND CASE /14/ WAS CONTROLLING
INSOFAR AS RESPONDENT WAS NOT OBLIGATED TO NEGOTIATE WITH THE UNION ON
THE CHANGE ITSELF. HOWEVER, COMPLAINANT TAKES THE POSITION THAT
RESPONDENT WAS OBLIGED TO "NEGOTIATE" AND AT THE VERY LEAST TO "CONSULT"
WITH THE UNION ON THE IMPACT OF THE REALIGNMENT OF THE WORK FORCE CAUSED
BY THE REMOVAL OF CIVILIAN POLICE FROM THE "GRAVEYARD" SHIFT.
COMPLAINANT FURTHER ALLEGES SUCH NEGOTIATION OR CONSULTATION DID NOT
OCCUR.
RESPONDENT TAKES THE POSITION THAT IT WAS NOT REQUIRED TO NEGOTIATE
ON THE DECISION TO ELIMINATE THE SHIFT NOR WAS IT REQUIRED TO "MEET,
CONFER AND NEGOTIATE" WITH COMPLAINANT CONCERNING THE IMPACT OF THAT
DECISION. RESPONDENT ACKNOWLEDGES A DUTY TO "CONSULT" WITH COMPLAINANT
CONCERNING IMPACT AND MAINTAINS THAT IT IN FACT DID SO.
IT IS READILY APPARENT THAT THE ELIMINATION OF A SHIFT OF GUARDS IS A
MATTER "AFFECTING WORKING CONDITIONS" WITHIN THE MEANING OF SECTION
11(A) OF THE ORDER. HOWEVER, SECTION 11(B) OF THE ORDER RELIEVES AN
AGENCY FROM THE OBLIGATION TO "MEET AND CONFER" IN "MATTERS WITH RESPECT
TO THE MISSION OF AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE NUMBER
OF EMPLOYEES; AND THE NUMBERS, TYPES AND GRADES OF POSITIONS OR
EMPLOYEES ASSIGNED TO AN ORGANIZATION OR UNIT, WORK PROJECT OR TOUR OF
DUTY; . . ." I FIND THAT THE ELIMINATION OF THE "GRAVEYARD" SHIFT WAS
PRIVILEGED UNDER SECTION 11(B) OF THE ORDER /15/ AND THEREFORE,
RESPONDENT WAS UNDER NO OBLIGATION TO MEET AND CONFER OR OTHERWISE
BARGAIN WITH THE UNION ON ITS DECISION TO ELIMINATE THE SHIFT. /16/
ACCORDINGLY, I MAKE NO FINDINGS OR CONCLUSIONS AS TO WHETHER
RESPONDENT'S MANNER OF DEALING WITH THE UNION ON THE CHANGE WOULD, IF
NOT PRIVILEGED, HAVE CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE
ORDER.
IN AGREEMENT WITH THE PARTIES I FURTHER FIND THAT RESPONDENT WAS
UNDER A DUTY TO BARGAIN WITH THE UNION IN SOME FORM (BE IT TO MEET,
NEGOTIATE, CONSULT OR CONFER) OVER THE IMPACT OF ITS DECISION TO
ELIMINATE THE "GRAVEYARD" SHIFT. /17/ HOWEVER, I ALSO FIND THAT THE
UNION NEVER REQUESTED TO BARGAIN ON IMPACT IN ANY MANNER AFTER IT WAS
TIMELY NOTIFIED OF RESPONDENT'S PLANS. ACCORDINGLY, NO REFUSAL TO
BARGAIN IN ANY FORM HAS BEEN ESTABLISHED.
AT THE MEETING OF SEPTEMBER 24, RESPONDENT FREELY DISCUSSED WITH THE
UNION THE PENDING ELIMINATION INCLUDING THE CRITERIA FOR PLACING
"GRAVEYARD" SHIFT EMPLOYEES ON OTHER SHIFTS; GIVING SUFFICIENT
NOTIFICATION TO "GRAVEYARD" SHIFT EMPLOYEES; THE QUESTION OF OVERTIME
IF EMPLOYEES WERE RELIEVED LATE AND WHETHER THE CIVILIAN GUARD POSITIONS
WOULD BE CONVERTED TO MILITARY. IT IS SIGNIFICANT THAT AT THIS MEETING
RAHR STATED THAT HE DIDN'T SEE ANY TROUBLE WITH THE ELIMINATION AS FAR
AS THE UNION WAS CONCERNED. DURING AND AFTER THIS MEETING RESPONDENT
DID NOTHING BY WORD OR DEED TO PRECLUDE FURTHER DISCUSSION ON THE
MATTER. /18/
BETWEEN THE DATE THE UNION RECEIVED NOTIFICATION OF RESPONDENT'S
INTENTIONS TO ELIMINATE THE "GRAVEYARD" SHIFT AND NOVEMBER 15, THE DATE
THAT THE SHIFT WAS ACTUALLY ELIMINATED, THE UNION HAD AMPLE OPPORTUNITY
TO REQUEST BARGAINING ON IMPACT BUT FAILED TO DO SO. IT HAD 17 DAYS
PRIOR TO OCTOBER 12, THE DATE WHEN RESPONDENT NOTIFIED THE EMPLOYEES OF
THEIR REASSIGNMENT AND ALMOST FIVE ADDITIONAL WEEKS BEFORE THE
REASSIGNMENT OCCURRED IN WHICH TO COME FORWARD WITH ANY REQUESTS,
SUGGESTIONS OR PROPOSALS REGARDING IMPACT. THE RECORD IS VOID OF ANY
EVIDENCE OF ANY DESIRE OR ATTEMPT ON THE PART OF THE UNION TO DISCUSS
IMPACT AFTER BEING NOTIFIED OF RESPONDENT'S DECISION IN SEPTEMBER.
RATHER THE RECORD REVEALS AND I FIND THAT THE UNION'S CONCERN AFTER THE
SEPTEMBER MEETING WAS TO PROTEST THE DECISION HAVING BEEN MADE WITHOUT
PRIOR CONSULTATION AND TO CONVINCE RESPONDENT TO REVERSE ITS DECISION.
INDEED THE FOLLOWING TESTIMONY OF RAHR /19/ AND THAT CITED ON PAGES 10
AND 11 OF THIS REPORT CLEARLY SUPPORTS THIS FINDING.
QUESTION: AND YOUR MAIN OBJECTION WAS THAT THERE WAS GOING TO BE AN
ELIMINATION OR THAT NO ONE WOULD TELL YOU WHO MADE THE DECISION TO
ELIMINATE THE GRAVEYARD SHIFT?
ANSWER: THAT'S FALSE. THAT'S WRONG. THAT WASN'T MY OBJECTION.
QUESTION: WHAT WAS YOUR OBJECTION?
ANSWER: MY OBJECTION IS AND STILL IS THAT WE WERE NOT CONSULTED WITH
OR ASKED FOR OUR ADVICE PRIOR TO ANY ACTION BEING TAKEN, OR WHAT THE
DECISION WAS THAT WAS MADE. A DECISION HAD BEEN MADE. WE WERE TOLD
WHAT WAS BEING DONE. WE WERE NOT ASKED IN ANY WAY. /20/
THIS FINDING IS FURTHER SUPPORTED BY AN ANALYSIS OF THE LANGUAGE OF
THE UNION'S CHARGE AGAINST RESPONDENT FILED OCTOBER 12 AND THE LANGUAGE
OF THE COMPLAINT FILED FEBRUARY 7, 1972, BOTH OF WHICH DOCUMENTS
ADDRESSED THEMSELVES TO THE REMOVAL OF EMPLOYEES FROM THE "GRAVEYARD"
SHIFT AND RESPONDENT'S ALLEGED FAILURE TO PROPERLY CONSULT WITH THE
UNION THEREON AS OPPOSED TO AN ALLEGATION THAT RESPONDENT FAILED TO
FULFILL ITS OBLIGATIONS WITH REGARD TO BARGAINING ON IMPACT.
WHILE THEY ARE NOT CONTROLLING, IT IS USEFUL TO CONSIDER DECISIONS OF
THE NATIONAL LABOR RELATIONS BOARD IN CASES INVOLVING SIMILAR ISSUES.
/21/ THE BOARD HAS FREQUENTLY FOUND THAT WHERE PRIOR NOTICE OF A CHANGE
IN WORKING CONDITIONS IS GIVEN A UNION AND THE UNION DOES NOT AVAIL
ITSELF TO THE OPPORTUNITY AFFORDED IT TO MEET FOR THE PURPOSE OF
DISCUSSING THE CHANGE, A REFUSAL TO BARGAIN, COGNIZABLE UNDER THE
NATIONAL LABOR RELATIONS ACT IS NOT ESTABLISHED. /22/ IN TRIPLEX OIL
REFINING DIVISION OF PENTALIC CORPORATION, 194 NLRB NO. 86, 78 LRRM
1711, THE EMPLOYER CLOSED ITS PLANT FOR ECONOMIC REASONS. THEREAFTER
THE EMPLOYER ASKED AN OFFICIAL OF THE UNION TO COME TO THE PLANT TO MAKE
SURE THE TERMINATED EMPLOYEES WERE SATISFIED WITH THE BENEFITS EACH
RECEIVED UNDER THE CONTRACT WHICH THE UNION HAD WITH THE EMPLOYER. THE
UNION OFFICIAL DID SO. THE BOARD HELD THAT THE UNION "THUS HAD AN
OPPORTUNITY TO SEEK NEGOTIATIONS ON THE EFFECTS OF THE CLOSING." THE
BOARD FURTHER HELD "AS THE RESPONDENT FULFILLED ITS BARGAINING
OBLIGATION BY AFFORDING THE UNION THIS OPPORTUNITY, IT CANNOT BE FAULTED
FOR THE UNION'S FAILURE TO PRESENT ANY DEMANDS."
DURING THE HEARING OF THIS MATTER, A LETTER DATED AUGUST 30, 1972,
/23/ FROM COLONEL RALPH W. MISTROT, NORTON AIR FORCE BASE COMMANDER TO
MR. JAMES NEUSTADT, STAFF COUNSEL FOR COMPLAINANT, WAS RECEIVED INTO
EVIDENCE OVER THE OBJECTION OF RESPONDENT. /24/ THE LETTER RECITES,
INTER ALIA, THAT DISCUSSIONS BETWEEN COUNSEL FOR COMPLAINANT AND
REPRESENTATIVES OF AIR FORCE HEADQUARTERS HAD OCCURRED AND THE UNION'S
POSITION WAS CLARIFIED "THAT THE ISSUE IN CONTENTION WAS THE FAILURE TO
CONSULT ON THE CRITERIA OR IMPACT OF MOVING EMPLOYEES FROM ONE SHIFT TO
ANOTHER AS A RESULT OF A CHANGE OF TOUR OF DUTY." THE LETTER FURTHER
STATES:
"3. AS A RESULT OF THE AFOREMENTIONED DISCUSSIONS AND FURTHER REVIEW
AT THIS BASE, WE AGREE THAT THERE WAS FAILURE ON OUR PART TO CONSULT
WITH THE UNION CONCERNING THE IMPACT OF THE ACTION ON THE EMPLOYEES AND
THE CRITERIA FOR THE ASSIGNMENT OF INDIVIDUALS TO PARTICULAR SHIFTS.
YOU MAY BE ASSURED THAT THIS WAS UNINTENTIONAL, AND THAT EVERY EFFORT
WILL BE MADE TO INSURE THAT SUCH OVERSIGHTS ARE NOT REPEATED."
AFTER INDICATING A DESIRE TO MEET WITH REPRESENTATIVES OF THE UNION
"TO ENGAGE IN BONAFIDE CONSULTATION ON THE IMPACT ISSUE" THE LETTER
CONCLUDES:
"WE SINCERELY BELIEVE THIS LETTER TO BE A SATISFACTORY OFFER OF
SETTLEMENT FOR THE COMPLAINT WHICH WILL PERMIT THE BASE AND UNION TO
RESOLVE THE DIFFERENCES BETWEEN THEM. IF THERE ARE ANY QUESTIONS ON THE
FOREGOING, WE WILL BE PLEASED TO DISCUSS THEM WITH YOUR DESIGNEE."
COMPLAINANT CONTENDS THAT RESPONDENT'S LETTER CONSTITUTES AN
ADMISSION THAT IT FAILED TO CONSULT ON THE QUESTION OF IMPACT.
RESPONDENT CONTENDS THAT IT WAS ERROR TO ADMIT THE LETTER INTO EVIDENCE
SINCE THE ALLEGED ADMISSION WAS INTENDED TO EFFECTUATE A SETTLEMENT AND
NOT MEANT TO CONSTITUTE AN ADMISSION. RESPONDENT ARGUES:
"THE APPARENT POLICY AND PURPOSE OF THE INFORMAL SETTLEMENT
PROCEDURES ENUNCIATED IN SECTION 203.2 OF THE RULES AND REGULATIONS OF
THE ASSISTANT SECRETARY ARE TO FOSTER AND PROMOTE SETTLEMENTS BETWEEN
THE PARTIES WITHOUT THE NECESSITY OF FORMAL HEARINGS. INFORMAL
SETTLEMENTS WILL PROMOTE A BETTER WORKING RELATIONSHIP BETWEEN THE
PARTIES AND ENHANCE LABOR-MANAGEMENT RELATIONS. IF SETTLEMENT OFFERS
ARE ADMISSIBLE AS ADMISSIONS AGAINST INTEREST AT AN UNFAIR LABOR
PRACTICE HEARING, INFORMAL SETTLEMENT ATTEMPTS WILL BE DISCOURAGED."
WHILE RESPONDENT'S ARGUMENT THAT SETTLEMENT OFFERS SHOULD NOT BE
ADMISSIBLE AS ADMISSIONS AGAINST INTERESTS HAS MERIT, THE LETTER IN
QUESTION IS MORE THAN MERELY AN OFFER OF SETTLEMENT. IT CONTAINS A
STATEMENT WHICH ARGUABLY CAN BE CONSTRUED AS AN ADMISSION AGAINST
INTEREST. THEREFORE THE ISSUE TO BE RESOLVED IS WHETHER AN ADMISSION
AGAINST INTEREST WHICH ARISES IN THE CONTEXT OF AN OFFER OF SETTLEMENT
SHOULD BE ADMITTED IN EVIDENCE AND CONSIDERED ACCORDINGLY.
THE CREDITED TESTIMONY REVEALS THAT SOMETIME EARLY IN AUGUST, 1972,
NEAL FINE, ESQ., COUNSEL FOR COMPLAINANT, RECEIVED A TELEPHONE CALL FROM
HAROLD LERNER, A LABOR RELATIONS EMPLOYEE OF AIR FORCE HEADQUARTERS.
LERNER WISHED TO DEFINE THE ISSUES TO BE LITIGABLE AT THE HEARING IN
THIS MATTER. FINE INFORMED LERNER THAT AS HE SAW IT, THE ISSUE OF THE
CASE WAS NOT THAT THERE WAS A FAILURE TO CONSULT ON THE CHANGE OF DUTY
HOURS, BUT WHETHER THERE WAS A FAILURE TO CONSULT ON THE IMPACT OF THE
CHANGE IN DUTY HOURS. FINE TOLD LERNER THAT HE COULDN'T DISCUSS
SETTLEMENT SINCE HE HAD NOT BEEN ABLE TO CONTACT THE LOCAL UNION'S
PRESIDENT. NO SETTLEMENT OFFER WAS MADE AT THAT TIME AND THERE WERE NO
FURTHER SETTLEMENT DISCUSSIONS BETWEEN LERNER AND FINE.
THEREAFTER THE LETTER WAS COMPOSED AT AIR FORCE HEADQUARTERS FOR
SIGNATURE BY THE BASE COMMANDER. GEORGE N. PIERCE, LABOR RELATIONS
MANAGER FOR CIVILIAN PERSONNEL AT THE FACILITY RECEIVED THE TEXT OF THE
LETTER DURING A TELEPHONE CONVERSATION WITH ROBERT THOMAS, AN EMPLOYEE
OF MILITARY HEADQUARTERS COMMAND IN ILLINOIS. THOMAS EXPLAINED TO
PIERCE THAT THE LETTER WAS AN ATTEMPT TO SETTLE THE CASE BEFORE HEARING
AND WAS A RESULT OF A CONVERSATION BETWEEN LERNER AND FINE. DURING THIS
CONVERSATION, PIERCE TOLD THOMAS THAT HE THOUGHT THE FACILITY HAD
"CONSULTED" BUT NEVERTHELESS WAS TOLD TO PREPARE THE LETTER FOR
SIGNATURE BY THE BASE COMMANDER. PIERCE THEN PREPARED THE LETTER AND
AFTER SHOWING IT TO STITES, PRESENTED THE LETTER TO COLONEL MISTROT AND
INFORMED HIM OF THE CIRCUMSTANCES GIVING RISE TO THE LETTER. PIERCE DID
NOT TELL MISTROT THAT HE DISAGREED WITH THE CONTENTS OF THE LETTER BUT
DID TELL HIM THAT HE WAS "UNHAPPY WITH THE LANGUAGE" OF THE LETTER AND
THAT MILITARY HEADQUARTERS COMMAND HAD DIRECTED THAT THE LETTER WAS TO
BE SIGNED BY THE BASE COMMANDER. THEREUPON MISTROT SIGNED THE LETTER
AND SENT IT TO NEUSTADT.
SETTLEMENTS WHICH PRECLUDE THE NECESSITY OF FORMAL LITIGATION ARE
ACKNOWLEDGED TO BE OF SUBSTANTIAL VALUE TO SOUND AND STABLE LABOR
RELATIONS AND SHOULD BE ENCOURAGED. HOWEVER, I AM NOT PREPARED TO SAY
THAT ANY ADMISSION AGAINST INTEREST IF MADE IN A CONTEXT OF SETTLEMENT
DISCUSSIONS IS OR SHOULD BE INADMISSIBLE AS EVIDENCE. /25/ TO SO HOLD
WOULD PERMIT THE DESCENT OF AN IMPENETRABLE VEIL AGAINST DISCLOSURE
SIMPLY BECAUSE THE HOPE OF SETTLEMENT IS ENVISIONED IN A DISCUSSION OR
COMMUNICATION. /26/ THIS, IT SEEMS TO ME, IS TOO FAR REACHING A HOLDING
EVEN THOUGH, TO SOME DEGREE, DISCLOSURE MIGHT IMPEDE CANDID AND FRUITFUL
DISCUSSIONS WHILE ATTEMPTING SETTLEMENT OF A MATTER. DIFFERENT FINDINGS
AS TO ADMISSIBILITY MAY BE WARRANTED DEPENDING UPON MANY FACTORS
INCLUDING THE NATURE OF THE COMMUNICATIONS GIVING RISE TO THE ALLEGED
ADMISSION, THE PERSON MAKING THE STATEMENT AND WHETHER THE ALLEGED
ADMISSION IS ONE OF FACT OR THE EXPRESSION OF A LEGAL OPINION.
CONSIDERING THE LIMITED NATURE OF THE DISCUSSION GIVING RISE TO THE
LETTER OF AUGUST 30, 1972, THE FACT THAT ITS CONTENTS WERE VOLUNTARY AND
IN NO WAY SOLICITED AND IN ALL THE CIRCUMSTANCES I REAFFIRM MY RULING
MADE DURING THE HEARING THAT THE LETTER IS ADMISSIBLE AS EVIDENCE.
NEVERTHELESS, THE PROBATIVE VALUE AND THE WEIGHT TO BE GIVEN TO THIS
EVIDENCE IS ANOTHER MATTER.
REGARDLESS OF A PARTY'S EXPRESSION OF OPINION AS TO WHETHER IT
FULFILLED ITS LEGAL BARGAINING OBLIGATION, IT IS FOR THE ADMINISTRATIVE
LAW JUDGE, THE ASSISTANT SECRETARY (AND POSSIBLY THE FEDERAL LABOR
RELATIONS COUNCIL) TO MAKE THIS DETERMINATION BASED UPON ALL THE
EVIDENCE. IN PARAGRAPH 3 OF THE LETTER OF AUGUST 30, 1972, RESPONDENT
CLEARLY ADMITS A FAILURE TO CONSULT WITH THE UNION CONCERNING THE IMPACT
OF THE ACTION TAKEN. HOWEVER, THERE IS NO ADMISSION BY RESPONDENT THAT
IT REFUSED TO BARGAIN ON IMPACT. THE EVIDENCE ESTABLISHES AND I HAVE
FOUND, SUPRA, THAT RESPONDENT DID NOT REFUSE TO BARGAIN WITH THE UNION
ON THIS MATTER. RATHER IF BARGAINING DID NOT OCCUR IT WAS BECAUSE THE
UNION, AFTER ADEQUATE NOTIFICATION AND SUFFICIENT OPPORTUNITY, MADE NO
TIMELY DEMAND FOR BARGAINING ON IMPACT. ACCORDINGLY, IN THE
CIRCUMSTANCES OF THIS CASE, I HAVE GIVEN LITTLE WEIGHT TO THE SUBJECT
LETTER.
IN VIEW OF THE ENTIRE FOREGOING, I CONCLUDE THAT COMPLAINANT HAS NOT
MET ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT
RESPONDENT VIOLATED SECTIONS 19(A)(6) AND (1) OF THE ORDER, AS ALLEGED.
UPON THE BASIS OF THE ABOVE FINDINGS AND CONCLUSIONS I RECOMMEND THAT
THE COMPLAINT HEREIN AGAINST RESPONDENT BE DISMISSED.
DATED AT WASHINGTON, D.C.
JANUARY 24, 1973
/1/ PAGE 4, LINE 25, OF THE HEARING TRANSCRIPT IS HEREBY CORRECTED TO
REFLECT THAT ASSISTANT SECRETARY EXHIBIT 1(A) CONSISTS OF THE COMPLAINT
IN THIS PROCEEDING AND AN "8-PAGE" ATTACHMENT RATHER THAN A "7-PAGE"
ATTACHMENT AS STATED IN THE TRANSCRIPT.
/2/ UNLESS OTHERWISE NOTED ALL DATES HEREAFTER WERE IN 1971.
/3/ COMPLAINANT EXHIBIT NO. 1.
/4/ THIS ACCOUNT OF THE MEETING IS BASED UPON A SYNTHESIS OF THE
TESTIMONY OF RAHR, STITES, PIERCE, AND SCHALLER, AS WELL AS THE
FACILITIES MINUTES OF THE MEETING RECORDED BY A SECRETARY, WHICH WERE
ADMITTED INTO THE RECORD WITHOUT OBJECTION AS RESPONDENT EXHIBIT NO. 1.
/5/ I SPECIFICALLY DO NOT CREDIT STITES' TESTIMONY THAT THE
ELIMINATION OF THE SHIFT WAS CONVEYED TO THE UNION AS A "PROPOSAL" WHICH
WOULD BE PUT INTO EFFECT "IF EVERYBODY AGREED INCLUDING THE UNION."
/6/ I SPECIFICALLY DO NOT CREDIT STITES' TESTIMONY THAT HE TOLD RAHR
THAT THE "AUTHORITY" FOR THE ACTION WAS "MANAGEMENT'S PREROGATIVE."
/7/ COMPLAINANT EXHIBIT 2.
/8/ COMPLAINANT EXHIBIT 3.
/9/ WHILE THERE APPEARS TO BE A DISCREPANCY BETWEEN WHAT WAS SAID AT
THE MEETING OF SEPTEMBER 24 AND WHAT IS CONTAINED IN COMPTON'S LETTER TO
RAHR WITH REGARD TO WHO AUTHORIZED THE ABOLISHMENT OF THE SHIFT,
RESOLUTION OF THE DISCREPANCY IS NOT NECESSARY TO RESOLVE THE UNDERLYING
ISSUES IN THIS CASE.
/10/ RESPONDENT EXHIBIT 3.
/11/ THE REASSIGNMENT ACTUALLY OCCURRED ON OR ABOUT NOVEMBER 15,
1971. STITES EXPLAINED THAT THE DELAY WAS OCCASIONED BY HIS BEING
ASSIGNED TO JURY DUTY DURING THAT PERIOD AND ALSO TO GIVE THE FACILITY
EXTRA TIME TO GIVE THE EMPLOYEES AN OPPORTUNITY TO ADJUST TO THE CHANGE
AND TO GIVE MANAGEMENT TIME SO THEY "COULD LOOK LONGER AT THE IMPACT."
/12/ ASSISTANT SECRETARY EXHIBIT 1(A).
/13/ HEARING TRANSCRIPT PP. 68-69.
/14/ AFGE LOCAL 1940 AND PLUM ISLAND ANIMAL DISEASE LABORATORY, DEPT.
OF AGRICULTURE, GREENPORT, N.Y., FLRC NO. 71A-11 (JULY 9, 1971).
/15/ IBID.
/16/ COMPARE FEDERAL EMPLOYEES METAL TRADES COUNCIL OF CHARLESTON AND
U.S. NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA, FLRC NO. 71A-52
(NOVEMBER 24, 1972).
/17/ PLUM ISLAND, SUPRA.
/18/ I FIND THAT FURTHER REQUESTS OR DISCUSSIONS BY THE UNION WERE
NOT PREVENTED MERELY BECAUSE THE "AUTHORITY" FOR THE ELIMINATION OF THE
SHIFT WAS NOT CLEAR, AS THE UNION CONTENDS. LACK OF SUCH KNOWLEDGE DID
NOT DETER THE UNION FROM DISCUSSING THE MATTER DURING THE SEPTEMBER 24
MEETING NOR COULD IT HAVE IMPEDED A REQUEST TO BARGAIN OR FOR DISCUSSION
ON IMPACT AFTER THE UNION RECEIVED THE LETTER SETTING FORTH THE
AUTHORITY (COMPLAINANT EXHIBIT 3).
/19/ HEARING TRANSCRIPT PP. 40-41.
/20/ I HAVE PREVIOUSLY FOUND THAT RESPONDENT WAS PRIVILEGED TO
ELIMINATE THE "GRAVEYARD" SHIFT WITHOUT BARGAINING WITH THE UNION.
ACCORDINGLY PRIOR NOTIFICATION OR CONSULTATION WITH THE UNION BEFORE
REACHING THAT DECISION IS A MOOT QUESTION.
/21/ SEE CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, P. 3 (1970).
/22/ HOLIDAY INN CENTRAL, 181 NLRB 997; DURFEES TELEVISION CABLE
COMPANY, 174 NLRB 611; BURNS FORD, INC., 182 NLRB 753.
/23/ COMPLAINANT EXHIBIT 4.
/24/ COUNSEL FOR RESPONDENT DID NOT OBJECT TO THE AUTHENTICITY OF THE
DOCUMENT OR THAT THE LETTER WAS A "VALID OFFER OF SETTLEMENT" BUT DID
OBJECT TO THE RECEIPT OF THE LETTER IF IT WAS TO BE USED TO SHOW THAT
RESPONDENT WAS ADMITTING GUILT.
/25/ SEE 4 WIGMORE ON EVIDENCE (3RD ED.) SEC. 1061(C); BUT SEE,
LOCAL 18, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL UNION OF
AMERICA, AFL-CIO, AND JESSE BULLE AND UNION COUNTY BUILDING CONTRACTORS
ASSOCIATION AND THE JOHANSEN COMPANY, PARTIES TO THE CONTRACT, 170 NLRB
8 FN. 7 WHERE THE NATIONAL LABOR RELATIONS BOARD HELD IN A SITUATION
SUBSTANTIALLY DIFFERENT THAN THAT IN THE INSTANT CASE, "WE AGREE THAT
STATEMENTS MADE BY THE PARTIES DURING ATTEMPTED SETTLEMENT DISCUSSIONS
ARE INADMISSIBLE, AND MAY NOT BE RELIED UPON, AS EVIDENCE OF WRONGDOING
IN AN UNFAIR LABOR PRACTICE PROCEEDING."
/26/ SECTION 203.9(C) OF THE REGULATIONS OF THE ASSISTANT SECRETARY
PROVIDES THAT THE REPORT OF INVESTIGATION IS TO BE FURNISHED TO THE
ADMINISTRATIVE LAW JUDGE. THAT REPORT FREQUENTLY DISCLOSES SETTLEMENT
ATTEMPTS BY THE PARTIES.
3 A/SLMR 260; P. 171; CASE NO. 22-3386(RO); MARCH 28, 1973.
DEPARTMENT OF THE ARMY,
UNITED STATES DEPENDENTS' SCHOOLS,
EUROPEAN AREA
A/SLMR NO. 260
THE SUBJECT CASE INVOLVES A REPRESENTATION PETITION FILED BY THE
OVERSEAS EDUCATION ASSOCIATION, NATIONAL EDUCATION ASSOCIATION,
INDEPENDENT (OEA) SEEKING A RESIDUAL UNIT OF ALL NONSUPERVISORY
PROFESSIONAL SCHOOL PERSONNEL WHO ARE EMPLOYED IN THE DEPARTMENT OF
DEFENSE OVERSEAS DEPENDENTS' SCHOOLS, EUROPEAN AREA, EXCLUDING, AMONG
OTHERS, EMPLOYEES WHO OTHERWISE WOULD BE INCLUDED BUT WHO CURRENTLY ARE
REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE UNDER COLLECTIVE-BARGAINING
AGREEMENTS IN EFFECT AS OF MARCH 17, 1972, THE DATE OF THE PETITION.
THE OVERSEAS FEDERATION OF TEACHERS, AMERICAN FEDERATION OF TEACHERS,
AFL-CIO (OFT) INTERVENED IN THE PETITION FILED BY THE OEA AND AGREED
THAT THE CLAIMED RESIDUAL UNIT WAS APPROPRIATE. THE ACTIVITY CONTENDED,
AMONG OTHER THINGS, THAT THE CLAIMED RESIDUAL UNIT WAS INAPPROPRIATE AND
THAT THE APPROPRIATE UNIT SHOULD BE AREA-WIDE IN SCOPE. THE OEA
REQUESTED THAT THE CLAIMED EMPLOYEES SHOULD BE GIVEN AN OPPORTUNITY TO
DETERMINE WHETHER OR NOT THEY DESIRED TO BE REPRESENTED IN THE EXISTING
OVERALL UNIT CURRENTLY REPRESENTED BY OEA.
THE ASSISTANT SECRETARY CONCLUDED THAT THE RESIDUAL UNIT PETITIONED
FOR BY OEA, WHICH INCLUDED ALL NONSUPERVISORY PROFESSIONAL SCHOOL
PERSONNEL IN APPROXIMATELY 32 SCHOOLS IN THE EUROPEAN AREA, WAS
APPROPRIATE. THIS NUMBER INCLUDED FIVE SCHOOLS ESTABLISHED AFTER THE
PETITION WAS FILED. IN REACHING THIS CONCLUSION, THE ASSISTANT
SECRETARY NOTED THAT THE SAME PERSONNEL AND MERIT POLICIES, AND
GRIEVANCE AND ADVERSE ACTION PROCEDURES ARE APPLICABLE TO ALL SCHOOL
PERSONNEL IN ALL SCHOOLS IN THE EUROPEAN AREA, AND THAT THE AREA
SUPERINTENDENT ARRANGES FOR LOGISTICAL SUPPORT FOR THE SCHOOL PROGRAM
AND ITS PERSONNEL AND HAS AUTHORITY TO ASSIGN AND TRANSFER ALL SCHOOL
PERSONNEL WITHIN THE EUROPEAN AREA, INCLUDING THE EMPLOYEES IN THE UNIT
SOUGHT.
ALSO, THE ASSISTANT SECRETARY FOUND THAT BY ITS INTERVENTION IN THE
INSTANT CASE AND BY PROCEEDING TO AN ELECTION IN THE UNIT SOUGHT, THE
OFT, IN EFFECT, WILL HAVE WAIVED ITS EXCLUSIVE REPRESENTATION STATUS AS
TO THOSE EMPLOYEES IN EXISTING UNITS ENCOMPASSED IN THE OEA'S PETITION
AND MAY CONTINUE TO REPRESENT THOSE EMPLOYEES ON AN EXCLUSIVE BASIS ONLY
IN THE EVENT THAT IT IS CERTIFIED IN THE PETITIONED FOR UNIT. FURTHER,
THE ASSISTANT SECRETARY FOUND THAT THE OEA'S REQUEST, THAT EMPLOYEES IN
THE UNIT SOUGHT BE GIVEN THE OPPORTUNITY TO DETERMINE WHETHER OR NOT
THEY DESIRE TO BE REPRESENTED IN THE EXISTING OVERALL UNIT CURRENTLY
REPRESENTED BY OEA RATHER THAN IN THE CLAIMED RESIDUAL UNIT, WAS
CONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER. IN GRANTING
OEA'S REQUEST, THE ASSISTANT SECRETARY NOTED THAT A VOTE FOR OEA WOULD
INDICATE THE PARTICULAR EMPLOYEE'S DESIRE TO BE INCLUDED IN THE EXISTING
OVERALL UNIT CURRENTLY REPRESENTED BY THE OEA AND THAT A VOTE FOR OFT
WOULD INDICATE A DESIRE FOR REPRESENTATION IN A SEPARATE RESIDUAL UNIT.
DEPARTMENT OF THE ARMY,
UNITED STATES DEPENDENTS' SCHOOLS,
EUROPEAN AREA /1/
AND
OVERSEAS EDUCATION ASSOCIATION,
NATIONAL EDUCATION ASSOCIATION,
INDEPENDENT
AND
OVERSEAS FEDERATION OF TEACHERS,
AMERICAN FEDERATION OF TEACHERS,
AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER EARL T. HART. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE CASE, INCLUDING BRIEFS FILED BY ALL OF
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, OVERSEAS EDUCATION ASSOCIATION, NATIONAL
EDUCATION ASSOCIATION, INDEPENDENT, HEREIN CALLED OEA, SEEKS AN ELECTION
IN A UNIT OF ALL NONSUPERVISORY PROFESSIONAL SCHOOL PERSONNEL WHO ARE
EMPLOYED IN THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS' SCHOOLS,
EUROPEAN AREA, INCLUDING THOSE WITH "NOT TO EXCEED" APPOINTMENTS
(NTE'S), BUT EXCLUDING NONPROFESSIONALS, SUBSTITUTE TEACHERS, MANAGEMENT
OFFICIALS, SUPERVISORS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A CLERICAL CAPACITY, GUARDS AND ALL OTHER EMPLOYEES WHO WOULD
OTHERWISE BE INCLUDED BUT WHO ARE CURRENTLY REPRESENTED BY AN EXCLUSIVE
REPRESENTATIVE UNDER COLLECTIVE-BARGAINING AGREEMENTS IN EFFECT AS OF
THE DATE OF THE FILING OF THE PETITION. /2/ THE OEA ASSERTS THAT THE
PETITIONED FOR RESIDUAL UNIT IS APPROPRIATE AND THAT AN ELECTION IN SUCH
A UNIT WOULD BE PROPER. /3/
AT THE HEARING AND IN ITS BRIEF THE OEA REQUESTED THAT THE CLAIMED
EMPLOYEES BE GIVEN THE OPPORTUNITY TO DETERMINE WHETHER OR NOT THEY
DESIRED TO BE REPRESENTED IN THE EXISTING OVERALL UNIT CURRENTLY
REPRESENTED BY THE OEA.
THE DEPARTMENT OF THE ARMY, UNITED STATES DEPENDENTS' SCHOOLS,
EUROPEAN AREA, HEREIN CALLED THE ACTIVITY, CONTENDS THAT THE CLAIMED
RESIDUAL UNIT IS INAPPROPRIATE AND THAT THE APPROPRIATE UNIT SHOULD BE
AREA-WIDE IN SCOPE. IT ARGUES, FURTHER, THAT CERTAIN OF THE PETITIONED
FOR SCHOOLS ARE ACCRETIONS TO THE EXISTING OEA BARGAINING UNIT AND THAT
OTHER EXISTING UNITS, LIMITED IN SCOPE TO INDIVIDUAL SCHOOLS, IN WHICH
OFT HOLDS EXCLUSIVE RECOGNITION, IN EFFECT, HAVE BEEN FOUND TO BE
INAPPROPRIATE BY THE ASSISTANT SECRETARY IN U.S. DEPARTMENT OF DEFENSE,
DOD, OVERSEAS DEPENDENT SCHOOLS, A/SLMR NO. 110.
THE OVERSEAS DEPENDENTS' SCHOOLS SYSTEM, ESTABLISHED IN 1964 BY THE
DEPARTMENT OF DEFENSE, PROVIDES ELEMENTARY AND SECONDARY EDUCATION FOR
MINOR DEPENDENTS OF DEPARTMENT OF DEFENSE MILITARY AND CIVILIAN
PERSONNEL STATIONED OVERSEAS. POLICY DIRECTION OVER THE SCHOOL SYSTEM
HAS BEEN DELEGATED TO THE ASSISTANT SECRETARY OF DEFENSE (MANPOWER AND
RESERVE AFFAIRS). IN 1966, THROUGH AN ADMINISTRATIVE CHANGE, EACH
MILITARY DEPARTMENT, I.E., NAVY, ARMY, AND AIR FORCE, WAS GIVEN
JURISDICTION IN THE ATLANTIC, EUROPEAN, AND PACIFIC AREAS, RESPECTIVELY,
FOR THE ACADEMIC ADMINISTRATION OF THE DEPENDENTS' SCHOOLS SYSTEM IN ITS
PARTICULAR AREA AS WELL AS THE RESPONSIBILITY FOR ALL PERSONNEL EMPLOYED
BY THE OVERSEAS DEPENDENTS' SCHOOLS IN SUCH AREA. AS A RESULT OF THIS
ADMINISTRATIVE CHANGE, THE SECRETARY OF THE ARMY WAS ASSIGNED
RESPONSIBILITY FOR THE OPERATION AND ADMINISTRATION OF ALL DEPARTMENT OF
DEFENSE SCHOOLS IN THE EUROPEAN AREA, AS WELL AS IN AFRICA AND ASIA TO
90 DEGREES EAST LONGITUDE.
CURRENTLY, THE OEA REPRESENTS EXCLUSIVELY ALL NONSUPERVISORY
PROFESSIONAL SCHOOL PERSONNEL IN THE EUROPEAN AREA, EXCEPT FOR CERTAIN
UNREPRESENTED INDIVIDUAL SCHOOLS IN THE EUROPEAN AREA AND CERTAIN
INDIVIDUAL SCHOOLS WHERE THE NONSUPERVISORY PROFESSIONAL SCHOOL
PERSONNEL ARE REPRESENTED BY THE OFT. THE RECORD REVEALS THAT THE OEA
AND THE ACTIVITY WERE PARTIES TO A NEGOTIATED AGREEMENT WHICH COVERED
APPROXIMATELY 183 OF THE APPROXIMATE 222 SCHOOLS IN THE EUROPEAN AREA IN
EXISTENCE AT THE TIME OF THE HEARING. THE OEA'S EUROPEAN NEGOTIATED
AGREEMENT, WHICH HAD A TWO-YEAR DURATION, EXPIRED ON APRIL 1, 1971, AND
A SUBSEQUENT AGREEMENT WAS NEGOTIATED WITH AN EXPIRATION DATE OF JUNE 9,
1972. /4/
THE EVIDENCE ESTABLISHES THAT THE OFT WAS GRANTED EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 10988 IN APPROXIMATELY 16 INDIVIDUAL
SCHOOL UNITS IN THE EUROPEAN AREA. AT THE TIME OF THE FILING OF THE
PETITION IN THE SUBJECT CASE, THE RECORD REVEALS THAT THE OFT HAD
NEGOTIATED AGREEMENTS COVERING FOUR SCHOOLS: FRANKFURT AMERICAN HIGH
SCHOOL, TORREJON ELEMENTARY SCHOOL, TORREJON MIDDLE SCHOOL, AND TORREJON
HIGH SCHOOL. /5/ THE REMAINING UNITS REPRESENTED EXCLUSIVELY BY THE OFT
WERE NOT COVERED BY NEGOTIATED AGREEMENTS AT THE TIME THE OEA FILED ITS
PETITION IN THE INSTANT CASE.
AS NOTED ABOVE, THE RESPONSIBILITY FOR THE OPERATION AND THE
ADMINISTRATION OF THE OVERSEAS DEPENDENTS' SCHOOLS SYSTEM IN THE
EUROPEAN AREA HAS BEEN DELEGATED TO THE SECRETARY OF THE ARMY. THE
EUROPEAN AREA CONSISTS OF APPROXIMATELY 222 SCHOOLS EMPLOYING OVER 5,000
TEACHERS. /6/ THE CHIEF ADMINISTRATIVE OFFICER OF THE EUROPEAN AREA'S
SCHOOL SYSTEM IS THE AREA SUPERINTENDENT WHO IS RESPONSIBLE FOR THE
ORGANIZATION, ADMINISTRATION AND SUPERVISION OF THE DEPENDENTS SCHOOLS'
EDUCATION PROGRAM WITHIN THE AREA. UNDER THE AREA SUPERINTENDENT ARE
SEVERAL DISTRICT SUPERINTENDENTS, EACH OF WHOM SUPERVISES AN UNSPECIFIED
NUMBER OF INDIVIDUAL SCHOOL PRINCIPALS WHO, IN TURN, SUPERVISE THE
TEACHERS EMPLOYED IN THE INDIVIDUAL SCHOOLS. THE AREA SUPERINTENDENT
IMPLEMENTS BASIC GUIDELINES ISSUED BY THE DEPARTMENT OF THE ARMY AND
PREPARES AND ISSUES DOCUMENTS DESIGNED TO PROVIDE UNIFORM ADMINISTRATION
WITHIN THE AREA. THE RECORD REVEALS ALSO THAT THE AREA SUPERINTENDENT
ESTABLISHES THE GENERAL EDUCATIONAL GOALS FOR THE SCHOOLS IN THE AREA
AND, THROUGH THE EXECUTION OF AGREEMENTS WITH INDIVIDUAL LOCAL UNITED
STATES MILITARY INSTALLATIONS, ARRANGES FOR LOGISTICAL SUPPORT FOR THE
PROGRAM AND ITS PERSONNEL.
THE RECORD ESTABLISHES THAT THE MISSION AND GOALS OF ALL ARMY SCHOOL
PERSONNEL IN THE EUROPEAN AREA ARE THE SAME AND THAT ALL SCHOOL
PERSONNEL ARE HIRED BY THE EUROPEAN AREA SUPERINTENDENT WHO MAKES THE
FINAL DECISION ON THE ASSIGNMENT OF SCHOOL PERSONNEL WITHIN THE EUROPEAN
AREA. FURTHER, THE AREA SUPERINTENDENT HAS AUTHORITY TO TRANSFER SCHOOL
PERSONNEL WITHIN THE EUROPEAN AREA PURSUANT TO APPLICABLE ARMY
REGULATIONS. TEACHER TRAINING PROGRAMS, PERSONNEL POLICIES, A MERIT
PROMOTION SYSTEM, A LEAVE PROGRAM AND GRIEVANCE AND ADVERSE ACTION
PROCEDURES ARE ESTABLISHED BY THE DEPARTMENT OF THE ARMY AND ARE
ADMINISTERED BY THE AREA SUPERINTENDENT WITH RESPECT TO ALL SCHOOL
PERSONNEL WITHIN THE EUROPEAN AREA.
THE PETITIONED FOR RESIDUAL UNIT ENCOMPASSES APPROXIMATELY 32 SCHOOLS
AND APPROXIMATELY 705 NONSUPERVISORY PROFESSIONAL SCHOOL PERSONNEL.
EMPLOYEES IN THE FOLLOWING CATEGORIES ARE COVERED BY THE PETITION
HEREIN: COUNSELOR, SCHOOL PSYCHOLOGIST, SOCIAL WORKER, ELEMENTARY
TEACHER, SECONDARY TEACHER, SPECIALTY TEACHER AND GUIDANCE COUNSELOR.
/7/ THESE EMPLOYEE CLASSIFICATIONS ARE FOUND THROUGHOUT THE OVERSEAS
DEPENDENTS' SCHOOLS SYSTEM IN THE EUROPEAN AREA.
UNDER ALL THE CIRCUMSTANCES, AND IN THE ABSENCE OF ANY OTHER LABOR
ORGANIZATION SEEKING TO REPRESENT THE REMAINING UNREPRESENTED
NONSUPERVISORY PROFESSIONAL SCHOOL PERSONNEL OF THE EUROPEAN AREA ON ANY
OTHER BASIS, I FIND THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AMONG ALL OF THE REMAINING UNREPRESENTED NONSUPERVISORY
PROFESSIONAL SCHOOL PERSONNEL IN THE EUROPEAN AREA, AND THAT SUCH A
RESIDUAL UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. /8/ THUS, IT IS CLEAR THAT THE AREA SUPERINTENDENT
ESTABLISHES THE GENERAL EDUCATIONAL GOALS FOR ALL SCHOOLS IN THE
EUROPEAN AREA; PROVIDES FOR THE UNIFORM ADMINISTRATION OF THE AREA'S
EDUCATION PROGRAM; ARRANGES FOR THE LOGISTICAL SUPPORT FOR THE PROGRAM
AND ITS PERSONNEL; AND HAS AUTHORITY TO ASSIGN AND TRANSFER TEACHER
PERSONNEL WITHIN THE AREA. IN ADDITION, THE SAME PERSONNEL AND MERIT
PROMOTION POLICIES, AND GRIEVANCE AND ADVERSE ACTION PROCEDURES ARE
APPLICABLE TO ALL SCHOOL PERSONNEL IN ALL SCHOOLS WITHIN THE AREA. /9/
IN ITS BRIEF, THE OFT ACKNOWLEDGES THAT BY ITS INTERVENTION IN THE
SUBJECT CASE AND BY PROCEEDING TO AN ELECTION IN THE UNIT SOUGHT IT WILL
WAIVE ITS EXCLUSIVE REPRESENTATION STATUS WITH RESPECT TO THE
NONSUPERVISORY PROFESSIONAL SCHOOL PERSONNEL IN THE EXCLUSIVELY
RECOGNIZED UNITS REPRESENTED BY THE OFT ENCOMPASSED BY THE PETITION
HEREIN. IN THIS CONNECTION, THE OFT TAKES THE POSITION THAT IT DESIRES
THAT SUCH UNITS BE INCLUDED WITHIN THE PETITIONED FOR RESIDUAL UNIT.
UNDER THESE CIRCUMSTANCES, I FIND THAT BY PROCEEDING TO AN ELECTION IN
THE UNIT SOUGHT, THE OFT WILL, IN EFFECT, HAVE WAIVED ITS EXCLUSIVE
REPRESENTATION STATUS AS TO THOSE EMPLOYEES IN ITS EXISTING UNITS
ENCOMPASSED BY THE PETITION HEREIN AND MAY CONTINUE TO REPRESENT THOSE
EMPLOYEES ON AN EXCLUSIVE BASIS ONLY IN THE EVENT THAT IT IS CERTIFIED
IN THE UNIT PETITIONED FOR IN THE SUBJECT CASE. /10/
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES OF THE
ACTIVITY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL SCHOOL PERSONNEL EMPLOYED IN THE DEPARTMENT OF
DEFENSE OVERSEAS DEPENDENTS' SCHOOLS, EUROPEAN AREA, INCLUDING THOSE
WITH "NOT TO EXCEED" APPOINTMENTS, EXCLUDING ALL SCHOOL PERSONNEL
COVERED BY NEGOTIATED AGREEMENTS, IN EFFECT AS OF MARCH 17, 1972,
NONPROFESSIONAL EMPLOYEES, SUBSTITUTE TEACHERS, /11/ EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /12/
AS NOTED ABOVE, THE OEA REQUESTED THAT THE CLAIMED EMPLOYEES BE GIVEN
THE OPPORTUNITY TO DETERMINE WHETHER OR NOT THEY DESIRE TO BE
REPRESENTED IN THE EXISTING OVERALL UNIT CURRENTLY REPRESENTED BY THE
OEA. I VIEW SUCH REQUEST TO BE CONSISTENT WITH THE PURPOSES AND
POLICIES OF THE ORDER. ACCORDINGLY, IF A MAJORITY OF THE EMPLOYEES IN
THE UNIT FOUND APPROPRIATE VOTES FOR THE OEA, THEY WILL BE TAKEN TO HAVE
INDICATED THEIR DESIRE TO BE INCLUDED IN THE EXISTING UNIT CURRENTLY
REPRESENTED BY THE OEA AND THE APPROPRIATE AREA ADMINISTRATOR WILL ISSUE
A CERTIFICATION TO THAT EFFECT. IF, ON THE OTHER HAND, A MAJORITY OF
THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE VOTES FOR THE OFT, THEY WILL
BE TAKEN TO HAVE INDICATED THEIR DESIRE TO BE REPRESENTED IN A SEPARATE
RESIDUAL UNIT AND THE APPROPRIATE AREA ADMINISTRATOR WILL ISSUE A
CERTIFICATION TO THAT EFFECT.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO ARE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE OVERSEAS
EDUCATION ASSOCIATION, NATIONAL EDUCATION ASSOCIATION, INDEPENDENT; OR
OVERSEAS FEDERATION OF TEACHERS, AMERICAN FEDERATION OF TEACHERS,
AFL-CIO; OR BY NEITHER.
DATED, WASHINGTON, D.C.
MARCH 28, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING. THE
FOLLOWING LIST OF SCHOOLS INITIALLY WAS AGREED TO BY THE PARTIES AS
APPROPRIATELY INCLUDED IN THE UNIT SOUGHT: ANKARA HIGH SCHOOL, ATHENS
ELEMENTARY SCHOOL, AVELLINO ELEMENTARY SCHOOL, BAHRAIN ELEMENTARY
SCHOOL, BRUNSSUM ELEMENTARY SCHOOL, BRUNNSUM HIGH SCHOOL, DAVID GLASGOW
FARRAGUT JUNIOR/SENIOR HIGH SCHOOL (ROTA), FORREST SHERMAN ELEMENTARY
SCHOOL (NAPLES), FORREST SHERMAN HIGH SCHOOL (NAPLES), HEIDELBERG HIGH
SCHOOL, HOPSTEIN ELEMENTARY SCHOOL, IZMIR ELEMENTARY SCHOOL, IZMIR HIGH
SCHOOL, KAISERSLAUTERN HIGH SCHOOL, KAISERSLAUTERN JUNIOR HIGH SCHOOL,
LEIPHEIM ELEMENTARY SCHOOL, MEMMINGEN ELEMENTARY SCHOOL, RAMSTEIN
ELEMENTARY SCHOOL (NORTH), RAMSTEIN ELEMENTARY SCHOOL (SOUTH), RAMSTEIN
JUNIOR HIGH SCHOOL, SCULTHORPE ELEMENTARY SCHOOL, TODENDORF ELEMENTARY
SCHOOL, VERONA ELEMENTARY SCHOOL, VICENZA HIGH SCHOOL, VICENZA
ELEMENTARY SCHOOL, ZARAGOZA ELEMENTARY SCHOOL, ZARAGOZA JUNIOR/SENIOR
HIGH SCHOOL, AND ZWEIBRUCKEN HIGH SCHOOL. SUBSEQUENTLY, THE PARTIES
AGREED THAT BECAUSE HOPSTEIN ELEMENTARY SCHOOL WAS NO LONGER IN
EXISTENCE IT SHOULD BE STRICKEN FROM THE AGREED UPON LIST.
/3/ THE INTERVENOR, OVERSEAS FEDERATION OF TEACHERS, AMERICAN
FEDERATION OF TEACHERS, AFL-CIO, HEREIN CALLED OFT, WAS IN AGREEMENT
WITH THIS POSITION OF THE OEA.
/4/ THERE IS NO EVIDENCE THAT THE AGREEMENT HAS BEEN EXTENDED.
/5/ AS THE OEA PETITION HEREIN WAS FOR A RESIDUAL UNIT AND EXPRESSLY
DID NOT INCLUDE SCHOOLS COVERED BY EXISTING NEGOTIATED AGREEMENTS, NO
AGREEMENT BAR ISSUE WAS CONSIDERED TO EXIST IN THIS CASE.
/6/ IN ADDITION TO THE 218 SCHOOLS IN EXISTENCE AT THE TIME THE
INSTANT PETITION WAS FILED BY THE OEA, FIVE NEW SCHOOLS WERE OPENED IN
THE EUROPEAN AREA AROUND AUGUST 1972 AND THE HOPSTEIN SCHOOL WAS CLOSED,
BRINGING THE TOTAL NUMBER OF SCHOOLS IN THE AREA TO 222. THE FIVE NEW
SCHOOLS WERE ATHENS ELEMENTARY #2, BAHRAIN HIGH, BICHESTER ELEMENTARY,
NAPLES ELEMENTARY #2, AND JAVER ELEMENTARY. IN VIEW OF THE FACT THAT
THE BAHRAIN ELEMENTARY SCHOOL WAS INCLUDED ON THE LIST OF UNREPRESENTED
SCHOOLS AGREED TO BY THE PARTIES AT THE HEARING TO BE INCLUDED WITHIN
THE RESIDUAL UNIT, IN THE CIRCUMSTANCES OF THIS CASE IT WAS CONSIDERED
UNNECESSARY TO PASS ON THE ISSUE RAISED BY THE OEA AS TO WHETHER THE
BAHRAIN HIGH SCHOOL WAS AN ACCRETION TO THE BAHRAIN ELEMENTARY SCHOOL.
ALSO, THE EVIDENCE WAS NOT SUFFICIENT TO SUPPORT THE ACTIVITY'S
CONTENTION THAT CERTAIN OF THE PETITIONED FOR SCHOOLS ARE ACCRETIONS TO
THE EXISTING OEA BARGAINING UNIT. FURTHER, I FIND THAT THE FIVE NEW
SCHOOLS, NOTED ABOVE, ARE ENCOMPASSED BY THE PETITION HEREIN WHICH SEEKS
AN OVERALL, RESIDUAL UNIT.
/7/ THE PARTIES STIPULATED AND THE RECORD SUPPORTS THAT "NTE'S"
SHOULD BE INCLUDED IN THE UNIT SOUGHT BECAUSE THEY ARE EMPLOYED ON A
YEAR-TO-YEAR BASIS AND HAVE A REASONABLE EXPECTANCY OF CONTINUED
EMPLOYMENT. IN ADDITION, THE PARTIES STIPULATED THAT ALL PERSONNEL
DEFINED IN PUBLIC LAW 86-91 AS TEACHERS, WHO ARE NEITHER SUPERVISORY NOR
MANAGERIAL, SHOULD BE INCLUDED IN THE UNIT SOUGHT.
/8/ IT WAS NOTED THAT UNDER EXECUTIVE ORDER 10988 THE ACTIVITY
ACCORDED EXCLUSIVE RECOGNITION TO THE OEA IN A LESS THAN AREA-WIDE UNIT
AND TO THE OFT IN UNITS LIMITED IN SCOPE TO INDIVIDUAL SCHOOLS. OTHER
THAN MERE CONCLUSIONARY STATEMENTS, THE ACTIVITY PRESENTED NO EVIDENCE
THAT SUCH RELATIONSHIPS HAD HAMPERED THE ACTIVITY'S OPERATIONS OR
PRECLUDED EFFECTIVE DEALINGS BETWEEN THE PARTIES. IN THIS REGARD, CF.
DEPARTMENT OF THE NAVY, ALAMEDA NAVAL AIR STATION, A/SLMR NO. 6, FLRC
NO. 71A-9, WHERE THE FEDERAL LABOR RELATIONS COUNCIL STATED THAT
"EVIDENCE AS TO WHETHER A REQUESTED UNIT WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS IS WITHIN THE SPECIAL KNOWLEDGE OF,
AND MUST BE SUBMITTED BY, THE AGENCY INVOLVED." WITH RESPECT TO THE
ACTIVITY'S CONTENTION THAT THE CLAIMED RESIDUAL UNIT IS INAPPROPRIATE,
SEE DEPARTMENT OF THE NAVY, ALAMEDA NAVAL AIR STATION, A/SLMR NO. 6;
FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 122; AND FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173, WHERE RESIDUAL UNITS WERE FOUND TO BE
APPROPRIATE.
/9/ AS NOTED ABOVE, APPROXIMATELY 12 UNITS REPRESENTED BY THE OFT
WERE NOT COVERED BY NEGOTIATED AGREEMENTS AT THE TIME THE OEA FILED ITS
PETITION IN THE INSTANT CASE. UNDER THE CIRCUMSTANCES DESCRIBED ABOVE,
I FIND THAT THE EMPLOYEES IN THESE UNITS SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST WITH THE REMAINING UNREPRESENTED EMPLOYEES IN THE
RESIDUAL UNIT.
/10/ CF. DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND, FORT
MONMOUTH, NEW JERSEY, A/SLMR NO. 83 AT FOOTNOTE 2; DEPARTMENT OF THE
NAVY, MILITARY SEALIFT COMMAND, A/SLMR NO. 245.
/11/ THE PARTIES STIPULATED AND THE RECORD SUPPORTS A FINDING THAT
SUBSTITUTE TEACHERS SHOULD BE EXCLUDED FROM THE UNIT AS THEY DO NOT HAVE
A REASONABLE EXPECTATION OF PERMANENT EMPLOYMENT.
/12/ I AM ADMINISTRATIVELY ADVISED THAT THE INCLUSION OF THE FIVE NEW
SCHOOLS IN THE UNIT FOUND APPROPRIATE DOES NOT RENDER INADEQUATE THE
SHOWING OF INTEREST SUBMITTED BY THE OEA AND OFT.
3 A/SLMR 259; P. 167; CASE NO. 72-RO-2829(25); MARCH 14, 1973.
CALIFORNIA AIR NATIONAL GUARD HEADQUARTERS,
146TH TACTICAL AIRLIFT WING,
VAN NUYS, CALIFORNIA
A/SLMR NO. 259
PURSUANT TO THE DECISION AND REMAND OF THE ASSISTANT SECRETARY IN
A/SLMR NO. 147, A SUBSEQUENT HEARING WAS HELD IN THIS CASE FOR THE
PURPOSE OF SECURING ADDITIONAL EVIDENCE CONCERNING THE APPROPRIATENESS
OF THE UNIT SOUGHT. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES (NAGE) HAD PETITIONED FOR A UNIT CONSISTING OF ALL CIVILIAN
TECHNICIANS OF THE 146TH TACTICAL AIRLIFT WING, CALIFORNIA AIR NATIONAL
GUARD, EMPLOYED AT THE VAN NUYS AIR NATIONAL GUARD BASE, VAN NUYS,
CALIFORNIA. THE ACTIVITY WAS OF THE VIEW THAT THE CLAIMED UNIT WAS
APPROPRIATE.
THE RECORD REFLECTED THAT WITHIN THE CALIFORNIA AIR NATIONAL GUARD,
FOUR SQUADRONS OF THE 162ND MOBILE COMMUNICATIONS GROUP, TWO OF WHICH
WERE TENANT ORGANIZATIONS ON THE VAN NUYS AIR NATIONAL GUARD BASE, AND
THE PETITIONED FOR UNIT, THE 146TH TACTICAL AIRLIFT WING, WERE THE ONLY
UNREPRESENTED COMPONENTS.
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT, LIMITED
SOLELY TO THE EMPLOYEES OF THE 146TH TACTICAL AIRLIFT WING, WAS
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION IN THAT EMPLOYEES
COVERED BY THE PETITION DID NOT POSSESS A COMMUNITY OF INTEREST SEPARATE
AND DISTINCT FROM THE REMAINING UNREPRESENTED EMPLOYEES OF THE ACTIVITY.
HOWEVER, NOTING IN PARTICULAR THE COMMON MISSION, PERSONNEL POLICIES
AND PROCEDURES, EMPLOYMENT REQUIREMENTS, AND ULTIMATE SUPERVISION OF THE
CALIFORNIA AIR NATIONAL GUARD CIVILIAN TECHNICIANS, AS WELL AS THE FACTS
THAT THERE HAD BEEN TRANSFERS OF EMPLOYEES BETWEEN COMPONENTS OF THE
ACTIVITY SITUATED AT THE VAN NUYS AIR NATIONAL GUARD BASE; TRANSFERS
FROM OTHER LOCATIONS INTO THE 146TH TACTICAL AIRLIFT WING; SOME DEGREE
OF INTERCHANGE AMONG THE EMPLOYEES OF THE DIFFERENT COMPONENTS ON THE
VAN NUYS BASE; AND EMPLOYEES FROM VAN NUYS WERE SENT OUT ON TEMPORARY
DETAILS TO OTHER BASES WITHIN THE STATE, THE ASSISTANT SECRETARY FOUND
THAT A RESIDUAL STATEWIDE UNIT OF ALL UNREPRESENTED CALIFORNIA AIR
NATIONAL GUARD CIVILIAN TECHNICIANS WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. AS THE UNIT FOUND APPROPRIATE DIFFERED
SUBSTANTIALLY FROM THE UNIT PETITIONED FOR ORIGINALLY, THE ASSISTANT
SECRETARY DIRECTED THAT THE ELECTION IN THE RESIDUAL UNIT BE HELD UPON
COMPLETION OF THE POSTING OF A NOTICE OF UNIT DETERMINATION TO PERMIT
POSSIBLE INTERVENTION BY LABOR ORGANIZATIONS FOR THE SOLE PURPOSE OF
APPEARING ON THE BALLOT.
CALIFORNIA AIR NATIONAL GUARD HEADQUARTERS,
146TH TACTICAL AIRLIFT WING,
VAN NUYS, CALIFORNIA
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD IN THE SUBJECT CASE. THEREAFTER, ON APRIL 25, 1972,
I ISSUED A DECISION AND REMAND /1/ , IN WHICH I ORDERED THAT THE SUBJECT
CASE BE REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR THE
PURPOSE OF REOPENING THE RECORD TO SECURE ADDITIONAL EVIDENCE CONCERNING
THE APPROPRIATENESS OF THE UNIT SOUGHT. ON OCTOBER 3, 1972, A FURTHER
HEARING WAS HELD BEFORE HEARING OFFICER ALFRED C. POTTER. THE HEARING
OFFICER'S RULINGS MADE AT THE REOPENED HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE FACTS DEVELOPED AT
THE HEARINGS HELD BOTH PRIOR AND SUBSEQUENT TO THE REMAND, AND A BRIEF
SUBMITTED BY THE ACTIVITY, I FIND:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
HEREIN CALLED NAGE, SEEKS AN ELECTION IN A UNIT OF ALL CIVILIAN
TECHNICIANS OF THE 146TH TACTICAL AIRLIFT WING, CALIFORNIA AIR NATIONAL
GUARD, EMPLOYED AT THE VAN NUYS AIR NATIONAL GUARD BASE, VAN NUYS,
CALIFORNIA, EXCLUDING MANAGERS, SUPERVISORS, GUARDS, AND PERSONS ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY. THE
ACTIVITY AGREES THAT THE PETITIONED FOR UNIT IS APPROPRIATE.
THE CALIFORNIA AIR NATIONAL GUARD IS A STATE-ADMINISTRATED COMPONENT
OF THE CALIFORNIA MILITARY DEPARTMENT, WHOSE MISSION IS TO ORGANIZE,
EQUIP, AND TRAIN FORCES TO THE POINT OF READINESS IN THE EVENT OF A
STATE OR FEDERAL MOBILIZATION.
THE CHIEF OF STAFF OF THE CALIFORNIA AIR NATIONAL GUARD IS
HEADQUARTERED IN SACRAMENTO, CALIFORNIA AND REPORTS DIRECTLY TO THE
COMMANDING GENERAL OF STATE MILITARY FORCES WHO ALSO IS LOCATED IN
SACRAMENTO. UNDER THE CHIEF OF STAFF ARE BASE DETACHMENT COMMANDERS OF
THE CALIFORNIA AIR NATIONAL GUARD'S PRIMARY ORGANIZATIONAL COMPONENTS:
(1) THE 146TH TACTICAL AIRLIFT WING, VAN NUYS AIR NATIONAL GUARD BASE,
VAN NUYS, CALIFORNIA; (2) THE 129TH SPECIAL OPERATIONS GROUP, HAYWARD
AIR NATIONAL GUARD BASE, HAYWARD, CALIFORNIA; (3) THE 144TH AIR DEFENSE
WING, FRESNO AIR NATIONAL GUARD BASE, FRESNO, CALIFORNIA; (4) THE 163RD
FIGHTER GROUP, ONTARIO AIR NATIONAL GUARD BASE, ONTARIO, CALIFORNIA;
AND (5) THE 162ND MOBILE COMMUNICATIONS GROUP, HEADQUARTERED AT THE
NORTH HIGHLANDS AIR NATIONAL GUARD BASE, NORTH HIGHLANDS, CALIFORNIA.
IN ADDITION, A NUMBER OF SUB-COMPONENTS OF THE 162ND MOBILE
COMMUNICATIONS GROUP, LOCATED THROUGHOUT CALIFORNIA, REPORT TO THE BASE
DETACHMENT COMMANDER IN NORTH HIGHLANDS, THROUGH GROUP COMMUNICATIONS
STATION DETACHMENT COMMANDERS (STATION COMMANDERS). SUCH SUB-COMPONENTS
INCLUDE: (1) THE 149TH MOBILE COMMUNICATIONS SQUADRON, NORTH HIGHLANDS;
(2) THE 216TH ELECTRONIC INSTALLATIONS SQUADRON, HAYWARD; (3) THE
234TH MOBILE COMMUNICATIONS SQUADRON, HAYWARD; (4) THE 148TH MOBILE
COMMUNICATIONS SQUADRON, COMPTON; (5) THE 222ND MOBILE COMMUNICATIONS
SQUADRON, COSTA MESA; (6) THE 147TH MOBILE COMMUNICATIONS SQUADRON, VAN
NUYS; AND (7) THE 261ST MOBILE COMMUNICATIONS SQUADRON, VAN NUYS.
BARGAINING HISTORY WITHIN THE STATE REVEALS THAT THE ACTIVITY HAS
ACCORDED EXCLUSIVE RECOGNITION TO VARIOUS LOCALS OF THE NAGE IN EACH OF
THE FOLLOWING UNITS: THE 129TH SPECIAL OPERATIONS GROUP; THE 144TH AIR
DEFENSE WING; THE 163RD FIGHTER GROUP; THE 162ND MOBILE COMMUNICATIONS
GROUP (HEADQUARTERS) AND THE 149TH MOBILE COMMUNICATIONS SQUADRON; AND
THE 216TH ELECTRONIC INSTALLATIONS SQUADRON AND THE 234TH MOBILE
COMMUNICATIONS SQUADRON. UNREPRESENTED AMONG THE ACTIVITY'S EMPLOYEES
ARE THOSE OF THE 146TH TACTICAL AIRLIFT WING, THE PETITIONED FOR UNIT,
HEREIN, AND FOUR SQUADRONS OF THE 162ND MOBILE COMMUNICATIONS GROUP,
I.E., THE 147TH, 261ST, 148TH, AND 222ND MOBILE COMMUNICATIONS
SQUADRONS.
THE RECORD REFLECTS THERE ARE APPROXIMATELY 275 AIR RESERVE
TECHNICIANS (ART'S) IN THE 146TH TACTICAL AIRLIFT WING, VAN NUYS AIR
NATIONAL GUARD BASE. THE PARTICULAR ASSIGNMENT OF THE 146TH TACTICAL
AIRLIFT WING IS TO PERFORM THOSE TASKS ESSENTIAL TO TACTICAL AIRLIFTS.
MORE PRECISELY, THE CLAIMED EMPLOYEES ARE ENGAGED IN ACTIVITIES
PERTAINING TO ADMINISTRATION AND SUPPLY, IN ADDITION TO THOSE DUTIES
REQUIRED FOR MAINTENANCE OR REPAIR OF AIRCRAFT AND ACTUAL AIR
OPERATIONS. THESE EMPLOYEES HOLD DIVERSE GRADES /2/ AND
CLASSIFICATIONS, BUT JOIN ALL OTHER ART'S WITHIN THE STATE IN MEETING
CERTAIN EMPLOYMENT REQUIREMENTS, AS ESTABLISHED BY AIR NATIONAL GUARD
REGULATIONS. IN THIS LATTER REGARD, FOR EXAMPLE, THEY MUST BE MEMBERS
OF THE AIR NATIONAL GUARD AND HOLD MILITARY GRADES THEREIN, AND THEY
MUST MEET THE PHYSICAL STANDARDS FOR THE MILITARY POSITIONS THEY FILL.
AS INDICATED ABOVE, TWO OF THE UNREPRESENTED SQUADRONS OF THE 162ND
MOBILE COMMUNICATIONS GROUP, THE 147TH AND THE 261ST MOBILE
COMMUNICATIONS SQUADRONS, ARE LOCATED AT THE SAME BASE AS THE EMPLOYEES
IN THE CLAIMED UNIT. EACH OF THESE SQUADRONS EMPLOYS APPROXIMATELY 14
ART'S TO ACCOMPLISH ITS PARTICULAR COMMUNICATIONS MISSION. /3/ BY
DIRECTION OF THE AIR DIVISION, OFFICE OF THE COMMANDING GENERAL, STATE
MILITARY FORCES, THE HOST 146TH TACTICAL AIRLIFT WING PROVIDES SUPPORT
SERVICES TO THESE TENANT SQUADRONS WHICH INCLUDE MAINTENANCE OF BOTH
CIVILIAN AND MILITARY PERSONNEL RECORDS, ALL BASE SUPPLY FUNCTIONS,
FINANCIAL SERVICES, AND CIVIL ENGINEERING SUPPORT.
WITH RESPECT TO EMPLOYMENT AND OTHER RELATED PERSONNEL MATTERS
AFFECTING THE ART'S IN THE PRIMARY ORGANIZATIONAL COMPONENTS OF THE
CALIFORNIA AIR NATIONAL GUARD, THE RECORD REVEALS THAT THE COMMANDING
GENERAL OF THE CALIFORNIA MILITARY DEPARTMENT, IN SACRAMENTO, HAS
DESIGNATED EACH OF THE FIVE BASE DETACHMENT COMMANDERS OF THE CALIFORNIA
AIR NATIONAL GUARD AN "APPOINTING OFFICER." AS A RESULT, THE 146TH
TACTICAL AIRLIFT WING'S BASE DETACHMENT COMMANDER HAS THE AUTHORITY TO
HIRE, REDUCE RANK OR COMPENSATION, SUSPEND, FURLOUGH, OR SEPARATE ART'S
IN THE 146TH TACTICAL AIRLIFT WING IN CONFORMANCE WITH REQUIREMENTS
ESTABLISHED BY THE FEDERAL PERSONNEL MANUAL, NATIONAL GUARD BUREAU
PERSONNEL REGULATIONS AND OTHER CONTROLLING DIRECTIVES. THE "APPOINTING
OFFICER" AUTHORITY POSSESSED BY BASE DETACHMENT COMMANDERS IS LIMITED TO
THEIR PARTICULAR COMMAND AND DOES NOT EXTEND TO OTHER COMPONENTS OF THE
CALIFORNIA AIR NATIONAL GUARD, DESPITE THE PHYSICAL PRESENCE OF SEGMENTS
OF SUCH COMPONENTS AS TENANT ORGANIZATIONS ON THEIR PARTICULAR BASE.
THUS, THE BASE DETACHMENT COMMANDER OF THE 146TH TACTICAL AIRLIFT WING
DOES NOT HAVE "APPOINTING OFFICER" AUTHORITY OVER THE ART'S OF THE TWO
TENANT ORGANIZATIONS ON THE VAN NUYS AIR NATIONAL GUARD BASE; RATHER,
THE "APPOINTING OFFICER" AUTHORITY OVER THESE UNITS RESIDES WITH THE
BASE DETACHMENT COMMANDER OF THE 162ND MOBILE COMMUNICATIONS GROUP AT
NORTH HIGHLANDS. /4/
THE RECORD ESTABLISHES THAT ALL EMPLOYEES OF THE CALIFORNIA AIR
NATIONAL GUARD ARE UNDER CERTAIN UNIFORM POLICIES WHICH HAVE BEEN
ESTABLISHED AT THE STATE LEVEL. THUS, THERE IS A MERIT PROMOTION PLAN
WHICH APPLIES TO ALL CALIFORNIA AIR NATIONAL GUARD ART'S AND WHICH
PROVIDES THE PROCEDURES FOR FILLING TECHNICIAN VACANCIES ON THE BASIS OF
MERIT. IN THIS CONNECTION, CERTAIN MINIMUM AREAS OF CONSIDERATION HAVE
BEEN ESTABLISHED WITHIN EACH OF THE MAJOR COMPONENTS FOR THE FILLING OF
VACANCIES. HOWEVER, UNDER THIS SYSTEM, WHILE THE MINIMUM AREA OF
CONSIDERATION FOR ALL WAGE BOARD POSITIONS AND FOR THOSE GENERAL
SCHEDULE POSITIONS BELOW GS-12 IN THE 146TH TACTICAL AIRLIFT WING IS THE
WING ITSELF, FOR POSITIONS GS-12 AND ABOVE, THE AREA OF CONSIDERATION IS
STATEWIDE WITHIN THE CALIFORNIA AIR NATIONAL GUARD. SIMILARLY, THE
MINIMUM AREA OF CONSIDERATION FOR THE TENANT SQUADRONS AT THE VAN NUYS
AIR NATIONAL GUARD BASE INCLUDES ALL SEVEN SUB-COMPONENTS OF THE 162ND
MOBIL COMMUNICATIONS GROUP FOR WAGE BOARD POSITIONS AND THOSE GENERAL
SCHEDULE POSITIONS BELOW GS-12, BUT IT IS STATEWIDE FOR POSITIONS GS-12
AND ABOVE. /5/
THE CHIEF OF STAFF OF THE CALIFORNIA AIR NATIONAL GUARD, OR HIS
DESIGNATED REPRESENTATIVE, PERFORMS THE FUNCTION OF SELECTING OFFICIAL
FOR ALL POSITIONS GS-12 AND ABOVE. WHEN THE SELECTING OFFICIAL IS OTHER
THAN THE CHIEF OF STAFF ALL SUCH APPLICATIONS ARE FORWARDED TO HIM FOR
CONCURRENCE. IN THIS CONNECTION, THE RECORD INDICATES THAT FOR ALL
POSITIONS GS-12 AND ABOVE WITHIN THE STATE, THE TECHNICIAN PERSONNEL
BRANCH (OFFICE OF THE COMMANDING GENERAL) IS UTILIZED TO PERFORM VARIOUS
PERSONNEL FUNCTIONS SUCH AS PREPARATION OF VACANCY ANNOUNCEMENTS AND
CERTIFICATES OF ELIGIBILITY.
THE RECORD REVEALS THAT SEVERAL EMPLOYEES OF THE 146TH TACTICAL
AIRLIFT WING HAVE BEEN SENT TEMPORARILY TO OTHER BASES OF THE CALIFORNIA
AIR NATIONAL GUARD TO PERFORM CERTAIN NECESSARY INSPECTIONS AND, AT SUCH
TIMES, THEY WORK WITH PERSONNEL OF THE PARTICULAR BASE INVOLVED TO
COMPLETE THEIR ASSIGNED TASK. THE EVIDENCE ESTABLISHES, FURTHER, THAT
THERE HAVE BEEN FIVE PERMANENT TRANSFERS INVOLVING EMPLOYEES OF THE
146TH TACTICAL AIRLIFT WING AND THE TENANT SQUADRONS ON THE VAN NUYS
BASE SINCE JANUARY 1, 1969. ALSO, THE ART'S NON-DUTY HOUR SECURITY
GUARD PROGRAM /6/ IS EFFECTED BY AN INTERCHANGE OF EMPLOYEES FROM ALL
THREE UNITS ON THE BASE.
THE RECORD REFLECTS THAT ALL TECHNICIANS OF THE CALIFORNIA AIR
NATIONAL GUARD ARE SUBJECT TO A UNIFORM STATEWIDE GRIEVANCE PROCEDURE.
IN THIS PROCEDURE, THE BASE DETACHMENT COMMANDERS ARE THE DECIDING
OFFICIALS AT THE FIRST FORMAL STEP OF GRIEVANCES. HOWEVER, APPEALS FROM
DECISIONS MADE IN ANY OF THE ACTIVITY'S COMPONENTS ARE HEARD, IN
SUBSEQUENT STEPS OF THE FORMAL PROCEDURE, BY THE CHIEF OF STAFF, AIR, OF
THE CALIFORNIA AIR NATIONAL GUARD AND A HEARING EXAMINER, WITH ALL FINAL
DECISIONS RESTING WITH THE COMMANDING GENERAL, STATE MILITARY FORCES.
ALSO, IN CONNECTION WITH OTHER LABOR-MANAGEMENT RELATIONS MATTERS, THE
COMMANDING GENERAL APPOINTS NEGOTIATING TEAMS WHICH MAY INCLUDE BASE
DETACHMENT COMMANDERS. /7/
BASED ON THE FOREGOING, I FIND THAT THE PETITIONED FOR UNIT, LIMITED
SOLELY TO THE EMPLOYEES OF THE 146TH TACTICAL AIRLIFT WING, IS
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491, AS THE EMPLOYEES DO NOT POSSESS A COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM THE REMAINING UNREPRESENTED EMPLOYEES OF THE
ACTIVITY. THUS, AS NOTED ABOVE, THE EVIDENCE ESTABLISHES THAT THERE IS
SUBSTANTIAL COMMONALITY AMONG ALL OF THE TECHNICIANS OF THE CALIFORNIA
AIR NATIONAL GUARD IN AREAS SUCH AS MISSION, PERSONNEL POLICIES AND
PROCEDURES, EMPLOYMENT REQUIREMENTS, AND ULTIMATE SUPERVISION.
MOREOVER, THE RECORD REVEALS THAT THERE HAVE BEEN TRANSFERS OF EMPLOYEES
BETWEEN COMPONENTS OF THE CALIFORNIA AIR NATIONAL GUARD SITUATED AT THE
VAN NUYS BASE, AS WELL AS TRANSFERS FROM OTHER LOCATIONS INTO THE 146TH
TACTICAL AIRLIFT WING; THAT THERE IS SOME DEGREE OF INTERCHANGE AMONG
THE EMPLOYEES OF THE DIFFERENT COMPONENTS AT THE VAN NUYS BASE; AND
THAT EMPLOYEES FROM VAN NUYS ARE SENT OUT ON TEMPORARY DETAILS TO OTHER
BASES WITHIN THE STATE. THUS, IN MY VIEW, IF I WERE TO FIND THE CLAIMED
UNIT APPROPRIATE THERE WOULD REMAIN FOUR UNREPRESENTED SQUADRONS OF THE
162ND MOBILE COMMUNICATIONS GROUP, INCLUDING TWO TENANT SQUADRONS AT THE
VAN NUYS BASE, CONTAINING EMPLOYEES WHO SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST WITH THE PETITIONED FOR EMPLOYEES. UNDER THESE
CIRCUMSTANCES, I FIND THAT A RESIDUAL STATEWIDE UNIT OF ALL THE
REMAINING UNREPRESENTED ART'S IN THE CALIFORNIA AIR NATIONAL GUARD WOULD
BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. MOREOVER, IN
MY OPINION, SUCH A RESIDUAL STATEWIDE UNIT OF ALL UNREPRESENTED
EMPLOYEES OF THE ACTIVITY WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491: /8/
ALL AIR RESERVE TECHNICIANS IN THE CALIFORNIA AIR NATIONAL GUARD
EMPLOYED BY THE 146TH TACTICAL AIRLIFT WING, THE 147TH MOBILE
COMMUNICATIONS SQUADRON, THE 261ST MOBILE COMMUNICATIONS SQUADRON, THE
148TH MOBILE COMMUNICATIONS SQUADRON, AND THE 222ND MOBILE
COMMUNICATIONS SQUADRON; EXCLUDING EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL
EMPLOYEES, /9/ , MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER. /10/
IN THE CIRCUMSTANCES SET FORTH BELOW, AN ELECTION BY SECRET BALLOT
SHALL BE CONDUCTED AMONG THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE NOT
LATER THAN 60 DAYS FROM THE DATE UPON WHICH THE APPROPRIATE AREA
ADMINISTRATOR ISSUES HIS DETERMINATION WITH RESPECT TO ANY INTERVENTIONS
IN THIS MATTER. THE APPROPRIATE AREA ADMINISTRATOR SHALL SUPERVISE THE
ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO
VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THE PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON
FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON
AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE
DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE
NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR BY ANY OTHER LABOR ORGANIZATION WHICH, AS DISCUSSED BELOW,
INTERVENES IN THIS PROCEEDING ON A TIMELY BASIS.
BECAUSE THE ABOVE DIRECTION OF ELECTION IS IN A UNIT SUBSTANTIALLY
DIFFERENT THAN THAT SOUGHT BY THE NAGE, I SHALL PERMIT IT TO WITHDRAW
ITS PETITION IF IT DOES NOT DESIRE TO PROCEED TO AN ELECTION IN THE UNIT
FOUND APPROPRIATE IN THE SUBJECT CASE UPON NOTICE TO THE APPROPRIATE
AREA ADMINISTRATOR WITHIN 10 DAYS OF THE ISSUANCE OF THIS DECISION.
IF THE NAGE DESIRES TO PROCEED TO AN ELECTION, BECAUSE THE UNIT FOUND
APPROPRIATE IS SUBSTANTIALLY DIFFERENT THAN THE UNIT IT ORIGINALLY
PETITIONED FOR, I DIRECT THAT THE ACTIVITY, AS SOON AS POSSIBLE, SHALL
POST COPIES OF A NOTICE OF UNIT DETERMINATION, WHICH SHALL BE FURNISHED
BY THE APPROPRIATE AREA ADMINISTRATOR, IN PLACES WHERE NOTICES ARE
NORMALLY POSTED AFFECTING THE EMPLOYEES IN THE UNIT I HAVE HEREIN FOUND
APPROPRIATE. SUCH NOTICE SHALL CONFORM IN ALL RESPECTS TO THE
REQUIREMENTS OF SECTION 202.4(B) AND (C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. FURTHER, ANY LABOR ORGANIZATION WHICH SEEKS TO INTERVENE
IN THIS MATTER MUST DO SO IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION
202.5 OF THE ASSISTANT SECRETARY'S REGULATIONS. ANY TIMELY INTERVENTION
WILL BE GRANTED SOLELY FOR THE PURPOSE OF APPEARING ON THE BALLOT IN THE
ELECTION AMONG THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
MARCH 14, 1973
/1/ A/SLMR NO. 147.
/2/ THE RECORD REVEALS THAT THE STRUCTURE AND RANGE OF GRADES WITHIN
THE 146TH TACTICAL AIRLIFT WING IS AS FOLLOWS: GS-3 THROUGH GS-14;
WG-8 THROUGH WG-12; WL-8 THROUGH WL-11; AND WS-9 THROUGH WS-11.
/3/ THE RECORD REVEALS THAT THE TWO OTHER UNREPRESENTED SQUADRONS OF
THE 162ND MOBILE COMMUNICATIONS GROUP, THE 148TH IN COMPTON AND THE
222ND IN COSTA MESA, HAVE EMPLOYEE COMPLEMENTS OF SOME 14 ART'S EACH.
/4/ HOWEVER, IN THIS REGARD, THE STATION COMMANDERS OF THE TWO TENANT
SQUADRONS AT THE VAN NUYS AIR NATIONAL GUARD BASE HAVE BEEN GIVEN
"NOMINATING OFFICER" AUTHORITY, BY MEANS OF WHICH THEY CAN MAKE
RECOMMENDATIONS TO THE BASE DETACHMENT COMMANDER AT NORTH HIGHLANDS.
/5/ THE RECORD INDICATES THAT THE SAME AREAS OF CONSIDERATION WOULD
APPLY DURING A REDUCTION IN FORCE.
/6/ IN A/SLMR NO. 147 IT WAS DETERMINED THAT THE NATURE AND EXTENT OF
THE ART'S DUTIES ASSOCIATED WITH THE SECURITY GUARD PROGRAM DID NOT
RENDER THEM "GUARDS" WITHIN THE MEANING OF SECTION 2(D) OF THE ORDER.
/7/ ANY NEGOTIATED AGREEMENTS, HOWEVER, MUST MEET WITH THE FINAL
APPROVAL OF THE NATIONAL GUARD BUREAU.
/8/ I AM ADVISED ADMINISTRATIVELY THAT THE NAGE HAS SUBMITTED A
SHOWING OF INTEREST WHICH IS IN EXCESS OF THIRTY PERCENT IN THE UNIT
FOUND APPROPRIATE.
/9/ ALTHOUGH NOT SPECIFICALLY EXCLUDED IN THE PETITION, THE RECORD
INDICATES THAT THE NAGE DID NOT CONTEMPLATE THE INCLUSION OF
PROFESSIONAL EMPLOYEES, IF ANY, IN THE PETITIONED FOR UNIT.
/10/ DURING THE HEARING, THE PARTIES AGREED THAT THE FOLLOWING
POSITIONS SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE BECAUSE THE
EMPLOYEES INVOLVED WERE SUPERVISORS: MEDICAL SERVICES TECHNICIAN, GS-8;
AIRCRAFT PROPELLER MECHANIC LEADER, WL-10; FLIGHT LINE MECHANIC
FOREMAN, WS-11; SHEET METAL MECHANIC LEADER, WL-10; ELECTRONIC
EQUIPMENT FOREMAN, WS-10; POWERED GROUND EQUIPMENT LEADER, WL-10;
AIRCRAFT JET ENGINE MECHANIC FOREMAN, WS-10; AIRCRAFT MECHANIC LEADER,
WG-12; AIRCRAFT INSTRUMENT AND CONTROL SYSTEM LEADER, WL-10; AND
AIRCRAFT ELECTRICIAN LEADER, WL-10. AS THERE IS NO EVIDENCE IN THE
RECORD THAT WOULD REQUIRE A CONTRARY CONCLUSION, I FIND THAT THE
EMPLOYEES IN THESE POSITIONS SHOULD BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE. WHILE THE PARTIES MAINTAINED THAT EMPLOYEES IN A NUMBER OF
OTHER CLASSIFICATIONS WERE EITHER SUPERVISORS OR MANAGEMENT OFFICIALS
AND, THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT, I FIND THAT THE
EVIDENCE SUBMITTED IN SUPPORT OF THEIR AGREEMENT IS INSUFFICIENT TO
ENABLE ME TO MAKE ELIGIBILITY DETERMINATIONS WITH RESPECT TO SUCH
POSITIONS.
3 A/SLMR 258; P. 164; CASE NO. 32-2468 E.O.; MARCH 14, 1973.
DEPARTMENT OF THE ARMY,
U.S. ARMY ELECTRONICS COMMAND (ECOM),
FORT MONMOUTH, NEW JERSEY
A/SLMR NO. 258
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476, INDEPENDENT, SEEKING AN
ELECTION IN A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
THE ARMY AVIATION DETACHMENT PHYSICALLY LOCATED IN LAKEHURST, NEW JERSEY
AND VICINITY.
THE ASSISTANT SECRETARY CONCLUDED THAT UNDER ALL THE CIRCUMSTANCES
THE PETITIONED FOR UNIT WAS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. IN REACHING THIS DETERMINATION, THE ASSISTANT SECRETARY
NOTED, AMONG OTHER THINGS, THAT ARMY AVIATION DETACHMENT EMPLOYEES ARE
SUBJECT TO THE SAME CENTRALLY ADMINISTERED PERSONNEL POLICIES AND
PROCEDURES AS ALL OTHER ECOM EMPLOYEES AT FORT MONMOUTH; THE AREA OF
CONSIDERATION FOR PROMOTIONS IS ON AN ACTIVITY-WIDE BASIS; THERE HAVE
BEEN A NUMBER OF TRANSFERS BETWEEN THE ARMY AVIATION DETACHMENT AND ECOM
EMPLOYEES AT FORT MONMOUTH; IT APPEARS THAT THERE ARE COMMON JOB
CLASSIFICATION IN BOTH THE ARMY AVIATION DETACHMENT AND THE ECOM
LABORATORIES AT FORT MONMOUTH; AND THERE IS SUBSTANTIAL CONTACT BETWEEN
ARMY AVIATION DETACHMENT EMPLOYEES AND ECOM EMPLOYEES AT FORT MONMOUTH.
BASED ON THESE FACTORS, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE REQUESTED UNIT DID NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE
ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF THE ARMY,
U.S. ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 476, INDEPENDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1904
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER LOUIS A. SCHNEIDER. THE
HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL
ERROR AND ARE HEREBY AFFIRMED. /1/
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
476, INDEPENDENT, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE ARMY AVIATION
DETACHMENT PHYSICALLY LOCATED IN LAKEHURST, NEW JERSEY AND VICINITY,
EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS, AND EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY. THE ACTIVITY CONTENDS THAT THE CLAIMED UNIT IS INAPPROPRIATE
AND ASSERTS THAT THE ONLY APPROPRIATE UNIT WOULD ENCOMPASS ALL ELIGIBLE
EMPLOYEES OF THE U.S. ARMY ELECTRONICS COMMAND (ECOM) AT FORT MONMOUTH,
NEW JERSEY AND VICINITY, WHICH WOULD INCLUDE THE EMPLOYEES SOUGHT BY THE
PETITION HEREIN. THE AFGE IS IN ESSENTIAL AGREEMENT WITH THE ACTIVITY'S
POSITION. /2/
THE ARMY AVIATION DETACHMENT IS ONE OF APPROXIMATELY 12
ORGANIZATIONAL SUBDIVISIONS OF THE HEADQUARTERS AND INSTALLATION SUPPORT
ACTIVITY (HISA), WHICH PROVIDES OVERALL MAINTENANCE SUPPORT TO ALL
ELEMENTS OF ECOM. AT ITS LOCATION IN LAKEHURST, NEW JERSEY, SOME 35-40
MILES FROM FORT MONMOUTH, THE ARMY AVIATION DETACHMENT IS ENGAGED
PRIMARILY IN PROVIDING FLIGHT SUPPORT FOR THE TESTING AND EVALUATION OF
VARIOUS DEVICES DEVELOPED AT ECOM LABORATORIES. ADDITIONALLY, THE ARMY
AVIATION DETACHMENT TRANSPORTS PASSENGERS AND EQUIPMENT TO OTHER BASES
ACROSS THE COUNTRY FROM FORT MONMOUTH.
THERE ARE 38 CIVILIAN EMPLOYEES IN THE ARMY AVIATION DETACHMENT.
WITH THE EXCEPTION OF EIGHT EMPLOYEES ASSIGNED TO FORT BELVOIR,
VIRGINIA, /3/ ALL ARMY AVIATION DETACHMENT EMPLOYEES WORK IN THE SAME
AREA AT LAKEHURST, NEW JERSEY, AND OCCUPY SUCH JOB CLASSIFICATIONS AS
AIRCRAFT PILOT, QUALITY ASSURANCE SPECIALIST, AIR TRAFFIC CONTROL
SPECIALIST, ELECTRONIC TECHNICIAN, EQUIPMENT SPECIALIST, BUDGET ANALYST,
TOOL STOCK AND PARTS KEEPER, TRAVEL CLERK, ACCOUNTS MAINTENANCE CLERK,
SUPPLY CLERK, AND SECRETARY.
THE RECORD REFLECTS THAT THERE IS A SINGLE, CENTRALIZED CIVILIAN
PERSONNEL OFFICE LOCATED AT FORT MONMOUTH WHICH PROVIDES PERSONNEL
SERVICES FOR ALL ECOM EMPLOYEES AT FORT MONMOUTH, INCLUDING THE ARMY
AVIATION DETACHMENT EMPLOYEES. IN THIS REGARD, SUCH MATTERS AS HIRING
AND FIRING, JOB CLASSIFICATION, MERIT AND CAREER PROMOTIONS, GRIEVANCES,
AND DISCIPLINARY ACTIONS ARE HANDLED BY THIS OFFICE. FURTHER, THE
ACTIVITY HAS A CENTRAL PAYROLL OFFICE, OPERATED BY ITS FINANCIAL
MANAGEMENT PERSONNEL, WHICH SERVICES ALL ECOM EMPLOYEES, INCLUDING THE
ARMY AVIATION DETACHMENT EMPLOYEES.
THE AREA OF CONSIDERATION FOR PROMOTIONAL OPPORTUNITIES FOR ALL HISA
EMPLOYEES, INCLUDING EMPLOYEES OF THE ARMY AVIATION DETACHMENT, IS ON AN
ACTIVITY-WIDE BASIS. ALSO, THE RECORD REVEALS THAT THE ARMY AVIATION
DETACHMENT EMPLOYEES ARE INCLUDED IN THE SAME COMPETITIVE AREA FOR
REDUCTIONS-IN-FORCE AS ALL OTHER EMPLOYEES OF HISA. /4/ THUS, IN THE
EVENT OF A REDUCTION-IN-FORCE ACTION, AN EMPLOYEE OF THE ARMY AVIATION
DETACHMENT WOULD BE ABLE TO "BUMP" INTO ANOTHER SUBDIVISION OF HISA.
THE RECORD SHOWS FURTHER THAT OVER THE PAST TEN YEARS THERE HAVE BEEN
NUMEROUS INSTANCES OF TRANSFER BETWEEN ARMY AVIATION DETACHMENT
PERSONNEL AND PERSONNEL OF ECOM LOCATED AT FORT MONMOUTH. MOREOVER, IT
APPEARS THAT THE ARMY AVIATION DETACHMENT AND THE ECOM LABORATORIES
LOCATED AT FORT MONMOUTH HAVE A NUMBER OF SIMILAR JOB CLASSIFICATIONS
SUCH AS BUDGET ANALYST, TOOL STOCK AND PARTS KEEPER, ELECTRONICS
TECHNICIAN, EQUIPMENT SPECIALIST, TRAVEL CLERK, AND ACCOUNTS MAINTENANCE
CLERK.
WITH RESPECT TO DAILY OPERATIONS OF THE ARMY AVIATION DETACHMENT, THE
RECORD DISCLOSES THAT THERE IS A SIGNIFICANT AMOUNT OF ON-THE-JOB
CONTACT BETWEEN ARMY AVIATION DETACHMENT EMPLOYEES AND EMPLOYEES OF THE
ECOM LABORATORIES AT FORT MONMOUTH. IN THIS REGARD, THE RECORD REVEALS
THAT IT IS NOT UNCOMMON FOR AS MANY AS 50 ECOM LABORATORY EMPLOYEES TO
GO TO LAKEHURST IN ORDER TO WORK ON A PROJECT IN CONJUNCTION WITH ARMY
AVIATION DETACHMENT PERSONNEL. ALSO, AIRCRAFT PILOTS AND QUALITY
ASSURANCE SPECIALISTS FROM THE ARMY AVIATION DETACHMENT FREQUENTLY GO TO
FORT MONMOUTH TO PROVIDE ECOM LABORATORY EMPLOYEES WITH TECHNICAL
ASSISTANCE ON VARIOUS PROJECTS.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE NFFE DOES
NOT CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491. THUS, AS NOTED ABOVE,
EMPLOYEES OF THE ARMY AVIATION DETACHMENT ARE SUBJECT TO THE SAME
CENTRALLY ADMINISTERED PERSONNEL POLICIES AND PROCEDURES AS ALL OTHER
ECOM EMPLOYEES AT FORTH MONMOUTH; THE AREA OF CONSIDERATION FOR
PROMOTIONS IS ON AN ACTIVITY-WIDE BASIS; ARMY AVIATION DETACHMENT
EMPLOYEES ARE INCLUDED IN THE SAME COMPETITIVE AREA FOR
REDUCTIONS-IN-FORCE AS ALL OTHER HISA EMPLOYEES; THERE IS SUBSTANTIAL
CONTACT BETWEEN ARMY AVIATION DETACHMENT EMPLOYEES AND ECOM EMPLOYEES AT
FORT MONMOUTH; THERE HAVE BEEN A NUMBER OF TRANSFERS BETWEEN ARMY
AVIATION DETACHMENT PERSONNEL AND OTHER ECOM PERSONNEL LOCATED AT FORT
MONMOUTH; AND IT APPEARS THAT THERE ARE COMMON JOB CLASSIFICATIONS AT
THE ARMY AVIATION DETACHMENT AND THE ECOM LABORATORIES LOCATED AT FORT
MONMOUTH.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT EMPLOYEES OF THE ARMY
AVIATION DETACHMENT DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER ECOM EMPLOYEES LOCATED AT FORT
MONMOUTH AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL
ORDER THAT THE NFFE'S PETITION HEREIN BE DISMISSED. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 32-2468 E.O. BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1973
/1/ AT THE COMMENCEMENT OF THE HEARING, THE INTERVENOR, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1904, HEREIN CALLED
AFGE, MOVED TO DISMISS THE PETITION ON THE BASIS OF A HEARING BAR. IN
THIS REGARD, IT WAS ALLEGED THAT A PRIOR CONSOLIDATED HEARING INVOLVING
FOUR SEPARATE PETITIONS FOR UNITS AT FORT MONMOUTH CONSTITUTED A BAR TO
THE SUBJECT PETITION UNDER SECTION 202.3(F) OF THE ASSISTANT SECRETARY'S
REGULATIONS IN EFFECT AT THE TIME THE PETITION WAS FILED. THE AFGE'S
MOTION WAS REFERRED BY THE HEARING OFFICER TO THE ASSISTANT SECRETARY
FOR RULING. INASMUCH AS THE UNIT SOUGHT BY THE SUBJECT PETITION WAS NOT
ENCOMPASSED BY ANY OF THE FOUR PETITIONS INVOLVED IN THE PRIOR
CONSOLIDATED HEARING, I FIND THE HEARING BAR RULE IS INAPPLICABLE
HEREIN. ACCORDINGLY, I HEREBY DENY THE AFGE'S MOTION TO DISMISS THE
SUBJECT PETITION.
/2/ IN THIS CONNECTION, HOWEVER, THE AFGE WOULD INCLUDE ALSO IN AN
ACTIVITY-WIDE UNIT THE TENANT ORGANIZATIONS LOCATED AT FORT MONMOUTH.
/3/ THE NFFE INDICATED THAT IT WOULD EXCLUDE THESE EIGHT EMPLOYEES
FROM THE CLAIMED UNIT.
/4/ HISA INCLUDES APPROXIMATELY 1400-1500 EMPLOYEES.
/5/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO MAKE
DETERMINATIONS CONCERNING EITHER THE ELIGIBILITY OR THE PROFESSIONAL
STATUS OF CERTAIN DISPUTED EMPLOYEE CLASSIFICATIONS.
3 A/SLMR 257; P. 160; CASE NO. 50-8235; MARCH 14, 1973.
UNITED STATES CUSTOMS SERVICE,
REGION IX,
CHICAGO, ILLINOIS
A/SLMR NO. 257
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY LOCALS 111, 176 AND 2946, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE). THE COMPLAINANTS ALLEGED THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2), (3) AND (6) OF THE EXECUTIVE ORDER BY
REFUSING TO PAY PER DIEM AND TRAVEL EXPENSES FROM DETROIT TO CHICAGO FOR
FOUR AFGE EMPLOYEE REPRESENTATIVES TO ATTEND A PRE-ELECTION MEETING WITH
REPRESENTATIVES OF THE RESPONDENT ACTIVITY AND A COMPETING UNION.
THE RESPONDENT CONTENDED THAT THE EMPLOYEES PARTICIPATING IN THE
PRE-ELECTION MEETING WERE NOT ENTITLED TO PER DIEM AND TRAVEL EXPENSES
AS THEY WERE ACTING AS REPRESENTATIVES OF A LABOR ORGANIZATION SEEKING
RECOGNITION AND, IN EFFECT, WERE ENGAGED IN UNION BUSINESS. FURTHER, IT
ASSERTED THAT UNDER EXISTING AGENCY REGULATIONS, THEY WERE NOT ENTITLED
TO BE PAID TRAVEL EXPENSES AND PER DIEM.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. HE NOTED THAT IN DEPARTMENT OF THE NAVY AND U.S. NAVAL
WEAPONS STATION, A/SLMR NO. 139, THE ASSISTANT SECRETARY HELD THAT THE
EXECUTIVE ORDER REQUIRES AGENCY MANAGEMENT TO MAKE AVAILABLE ON OFFICIAL
TIME ESSENTIAL WITNESSES AT NONADVERSARY FACT FINDING PROCEEDINGS TO
ENABLE HIM TO PERFORM HIS FUNCTIONS UNDER THE ORDER, BUT THAT ". . .
AGENCIES ARE NOT OBLIGATED TO MAKE AVAILABLE ON OFFICIAL TIME ANY
EMPLOYEES WHO APPEAR SOLELY AS UNION REPRESENTATIVES." THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE FOUR AFGE REPRESENTATIVES
APPEARED AT THE MEETING AS UNION REPRESENTATIVES AND, THEREFORE, WERE
NOT ENTITLED TO BE PAID BY THE AGENCY FOR THEIR TIME AND TRAVEL
EXPENSES.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE.
UNITED STATES CUSTOMS SERVICE,
REGION IX,
CHICAGO, ILLINOIS
AND
LOCALS 111, 176 AND 2946,
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
ON JANUARY 9, 1973, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDINGS, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 50-8235 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1973
BEFORE: MILTON KRAMER, ADMINISTRATIVE LAW JUDGE
APPEARANCES:
CARMEN J. IODICE
REGIONAL COUNSEL OF CUSTOMS, REGION IX
CHICAGO, ILLINOIS
ALLEN J. KAPLAN
NATIONAL VICE-PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NORTHFIELD, ILLINOIS
THIS CASE WAS INITIATED BY A COMPLAINT DATED MARCH 20, 1972 AND FILED
MARCH 21, 1972 UNDER EXECUTIVE ORDER 11491. IT WAS FILED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES FOR LOCALS 111, 176, AND 2946. IT
ALLEGES THAT A PRE-ELECTION MEETING WAS HELD IN CHICAGO ON DECEMBER 22,
1971 AT WHICH WERE PRESENT FOUR NAMED EMPLOYEES OF RESPONDENT
REPRESENTING AFGE, DEPARTMENT OF LABOR OFFICIALS, MANAGEMENT OFFICIALS,
AND OFFICIALS OF A COMPETING UNION. IT IS ALLEGED THAT THE PURPOSE OF
THE MEETING WAS TO REVIEW THE JOB CLASSIFICATIONS IN THE REGION FOR THE
PURPOSE OF DEFINING THE APPROPRIATE UNIT. IT COMPLAINS THAT THE BUREAU
OF CUSTOMS REFUSED TO PAY THE TRANSPORTATION COSTS AND TWO DAYS PER DIEM
EXPENSES AND REFUSED TO GRANT TWO DAYS ADMINISTRATIVE LEAVE TO THE FOUR
EMPLOYEES REPRESENTING AFGE. IT CLAIMS THAT THIS WAS IN VIOLATION OF
SECTIONS 19(A)(1), (2), (3) AND (6) OF EXECUTIVE ORDER 11491.
THE AREA ADMINISTRATOR AND THE REGIONAL ADMINISTRATOR MADE
INVESTIGATIONS. ON OCTOBER 13, 1972 THE REGIONAL ADMINISTRATOR ISSUED A
NOTICE OF HEARING TO BE HELD NOVEMBER 7, 1972 (LATER CHANGED TO NOVEMBER
8) IN CHICAGO, ILLINOIS. HEARINGS WERE HELD ON NOVEMBER 8, 1972 IN
CHICAGO AT WHICH COMPLAINANTS WERE REPRESENTED BY A NATIONAL
VICE-PRESIDENT OF AFGE AND RESPONDENT WAS REPRESENTED BY ITS REGIONAL
COUNSEL. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE,
EXAMINE AND CROSS-EXAMINE WITNESSES, ARGUE ORALLY, AND FILE BRIEFS.
DECEMBER 8, 1972 WAS FIXED AS THE DATE BY WHICH BRIEFS WERE TO BE FILED,
ALL PARTIES CONSENTING. THE RESPONDENT FILED A BRIEF ON DECEMBER 6,
1972. THE COMPLAINANTS DID NOT FILE A BRIEF.
THE FACTS ORIGINALLY AROSE OUT OF A REPRESENTATION PETITION FILED BY
NATIONAL CUSTOMS SERVICE ASSOCIATION COVERING A REGIONWIDE UNIT. /1/
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES WAS THE INTERVENOR AND
RESPONDENT WAS THE ACTIVITY.
A MEETING WAS HELD ON NOVEMBER 15, 1971 IN DETROIT, MICHIGAN AT WHICH
SOME OF THE DETAILS OF THE ELECTION WERE AGREED UPON. IT WAS AGREED
ALSO THAT A FURTHER MEETING WOULD BE HELD ON DECEMBER 22, 1972 IN
CHICAGO, ILLINOIS, WHERE THE RESPONDENT'S CENTRAL RECORDS WERE KEPT, TO
DETERMINE WHAT EMPLOYEES WERE INCLUDED IN THE AGREED-UPON BARGAINING
UNIT.
AT THE MEETING IN CHICAGO ON DECEMBER 22, THE AFGE WAS REPRESENTED BY
FOUR EMPLOYEES OF RESPONDENT, MESSRS. COOK, SEECH, PETTEN, AND POKLODEK,
/2/ WHO WERE EMPLOYED IN DETROIT. (THE MEETING WAS NOT SUCCESSFUL AND
RESULTED IN A HEARING AND A UNIT DETERMINATION BY THE ASSISTANT
SECRETARY. /3/ ) RESPONDENT GRANTED THE FOUR AFGE REPRESENTATIVES
ADMINISTRATIVE LEAVE FOR DECEMBER 22 BUT REFUSED TO PAY THEM FOR THEIR
TRAVEL COSTS /4/ TO AND FROM CHICAGO AND REFUSED TO PAY THEM PER DIEM
FOR THEIR SUBSISTENCE EXPENSES. IT ALSO REFUSED TO GRANT THEM
ADMINISTRATIVE LEAVE FOR DECEMBER 21 AND DECEMBER 23 WHEN THE FOUR
REPRESENTATIVES ALSO WERE ON LEAVE.
AT THE HEARING, AND IN THE NEGOTIATIONS ATTEMPTING TO RESOLVE THEIR
DIFFERENCES RESULTING IN THIS PROCEEDING, THE RESPONDENT OFFERED TO
GRANT THE FOUR MEN AN ADDITIONAL DAY OF ADMINISTRATIVE LEAVE (FOUR HOURS
FOR TRAVEL TO CHICAGO AND FOUR HOURS FOR RETURNING) WITHOUT
ACKNOWLEDGING THAT IT WOULD BE IN LIEU OF TRANSPORTATION AND PER DIEM.
THE COMPLAINANTS REJECTED THE OFFER, INSISTING THE MEN BE GRANTED EITHER
TWO ADDITIONAL DAYS ADMINISTRATIVE LEAVE OR THEIR TRANSPORTATION COSTS
AND PER DIEM. IT WAS AGREED AT THE HEARING THAT THE FOUR
REPRESENTATIVES COULD HAVE GONE TO CHICAGO AND ATTENDED THE MEETING AND
RETURNED TO DETROIT ALL IN ONE DAY.
THE TREASURY PERSONNEL MANUAL, ADOPTED BY THE BUREAU OF CUSTOMS,
PROVIDES:
"ALL REPRESENTATION PROCEEDINGS WILL BE CONDUCTED PURSUANT TO
DEPARTMENT OF LABOR REGULATIONS. * * *."
"AT NO STAGE OF THE REPRESENTATION PROCESS SHOULD OFFICIAL TIME BE
GRANTED TO EMPLOYEES TO PARTICIPATE AS UNION REPRESENTATIVES IN
REPRESENTATION PROCEEDINGS. REPRESENTATION PROCEEDINGS ARE DEFINED TO
INCLUDE ALL MEETINGS, CONFERENCES, HEARINGS, ELECTIONS OR OTHER
PROCEEDINGS WHICH TAKE PLACE IN RELATION TO PETITIONS FOR EXCLUSIVE
RECOGNITION OR DECERTIFICATION."
AT THE REPRESENTATION HEARING IN CASE NO. 52-2743(25) EVENTUATING IN
A/SLMR NO. 210, EMPLOYEES OF RESPONDENT, WHO WERE CALLED AS POTENTIAL
WITNESSES, WERE GIVEN ADMINISTRATIVE LEAVE AND TRAVEL AND PER DIEM,
WHETHER THEY TESTIFIED OR NOT.
IN DEPARTMENT OF THE NAVY AND THE U.S. NAVAL WEAPONS STATION, A/SLMR
NO.139, THE ASSISTANT SECRETARY HELD THAT THE EXECUTIVE ORDER REQUIRES
AGENCY MANAGEMENT TO:
". . . MAKE AVAILABLE ON OFFICIAL TIME ESSENTIAL WITNESSES AT
NON-ADVERSARY FACT FINDING PROCEEDINGS HELD PURSUANT TO THE REGULATIONS
. . . BASED UPON WHICH I CAN FULFILL THE RESPONSIBILITY ASSIGNED ME . .
." (PAGE 6.)
TO DECIDE QUESTIONS, UNDER SECTION 6(A)(1) OF THE ORDER, OF THE
APPROPRIATE UNIT AND RELATED ISSUES.
ACCORDINGLY, HE FOUND A VIOLATION OF SECTION 19(A)(1) OF THE
EXECUTIVE ORDER IN THE APPLICATION OF A POLICY OF REFUSING TO GRANT
ADMINISTRATIVE LEAVE TO NECESSARY WITNESSES:
". . . FOR THE PURPOSE OF PARTICIPATING IN A UNIT DETERMINATION
HEARING HELD PURSUANT TO THE REGULATIONS . . ." (PAGE 7.)
HOWEVER, HE STATED THAT:
". . . AGENCIES ARE NOT OBLIGATED TO MAKE AVAILABLE ON OFFICIAL TIME
EMPLOYEES WHO APPEAR SOLELY AS UNION REPRESENTATIVES." (PAGE 7.)
HE STATED ALSO THAT IF IN THE FUTURE AN AGENCY SHOULD REFUSE TO GRANT
ADMINISTRATIVE LEAVE, "WHICH WOULD INCLUDE PAYMENT OF ANY NECESSARY
TRANSPORTATION AND PER DIEM EXPENSES," TO NECESSARY UNION WITNESSES TO
TESTIFY AT A UNIT-DETERMINATION HEARING, SUCH REFUSAL "MAY" BE
CONSIDERED VIOLATIVE OF SECTION 19(A)(4) OF THE ORDER, WHICH PROHIBITS
DISCIPLINE OR OTHER DISCRIMINATION AGAINST AN EMPLOYEE FOR GIVING
TESTIMONY UNDER THE ORDER.
IT IS THE QUESTION OF THE PROPER APPLICATION OF THOSE HOLDINGS AND
THAT LANGUAGE IN DECISION NO. 139, AND THE QUESTION OF THEIR LOGICAL
EXTENSION, THAT GIVES RISE TO THIS CONTROVERSY. THE COMPLAINANT'S
CONTEND THAT THE DECEMBER 22 MEETING WAS HELD FOR THE PURPOSE OF
ACCOMPLISHING THE PURPOSE OF EXECUTIVE ORDER 11491, THAT SUCH A MEETING
IS NECESSARY TO ACCOMPLISH THAT PURPOSE, AND THEREFORE IT COMES WITHIN
THE AMBIT OF DECISION NO. 139. THEY ARGUE THAT FOR THE ASSISTANT
SECRETARY TO DETERMINE AN APPROPRIATE UNIT AND ITS COMPOSITION, SUCH
MEETINGS ARE NECESSARY WITH UNION PARTICIPATION. AND THEY CONCLUDE THAT
FOR THE UNION TO HAVE EQUAL PARTICIPATION, IT IS NECESSARY FOR THE
AGENCY TO PAY THE COSTS OF THE UNION REPRESENTATIVES TO ATTEND THE
MEETING SINCE IT PAYS THE COSTS OF THE AGENCY REPRESENTATIVES, AND THAT
THEREFORE THE TREASURY REGULATION AND THE BUREAU OF CUSTOMS POLICY ON
THE SUBJECT ARE VIOLATIVE OF THE EXECUTIVE ORDER. THE RESPONDENT ARGUES
THAT UNION REPRESENTATIVES WHO PARTICIPATE IN PRE-ELECTION MEETINGS
PARTICIPATE SIMPLY AS UNION REPRESENTATIVES ENGAGED IN UNION BUSINESS
WORKING FOR THE UNION AND THEIR TIME AND EXPENSES DO NOT FALL WITHIN
DECISION NO. 139. THEY ARGUE THAT THE TREASURY REGULATION AND BUREAU OF
CUSTOMS POLICY PRECLUDING THE GRANTING OF ADMINISTRATIVE LEAVE TO UNION
REPRESENTATIVES IN REPRESENTATION PROCEEDINGS ARE NOT VIOLATIVE OF THE
EXECUTIVE ORDER.
I DO NOT READ DECISION NO. 139 TO REQUIRE, AS COMPLAINANT APPEARS TO
CONTEND, THAT AN AGENCY MUST PAY FOR THE TIME AND EXPENSES OF ITS
EMPLOYEES WHEN THEY ARE ENGAGED IN EFFECTUATING THE PURPOSE OF THE
EXECUTIVE ORDER OR IN EFFECTUATING THE ADMINISTRATION OF THE EXECUTIVE
ORDER. I READ IT TO REQUIRE THAT AN AGENCY MUST SO RECOMPENSE ITS
EMPLOYEES WHEN THEY TESTIFY AT REPRESENTATION HEARINGS, AND PERHAPS WHEN
THEY PERFORM OTHER FUNCTIONS, TO ENABLE THE ASSISTANT SECRETARY
ADEQUATELY TO PERFORM HIS FUNCTIONS UNDER THE ORDER. I DO NOT READ IT
TO REQUIRE SUCH RECOMPENSE BY THE AGENCY WHEN THE EMPLOYEE ENGAGES IN
ACTIVITIES TO ENABLE THE UNION TO PERFORM ITS FUNCTIONS. SOMETIMES THE
SAME ACTIVITIES MAY ENABLE BOTH THE UNION TO PERFORM ITS FUNCTIONS AND
THE ASSISTANT SECRETARY TO PERFORM HIS FUNCTIONS, SUCH AS WAS PRESENT IN
DECISION NO. 139; TESTIFYING IN A NON-ADVERSARY REPRESENTATION HEARING
ENABLED THE UNION TO PRESENT TO THE ASSISTANT SECRETARY WHAT IT
CONSIDERED THE PERTINENT FACTS RELATING TO THE APPROPRIATE UNIT, AND
ENABLED THE ASSISTANT SECRETARY TO ASCERTAIN THE FACTS NECESSARY TO A
PROPER DETERMINATION. SO LONG AS THE PROCEEDING IS NOT ADVERSARY IN
NATURE AND IS CONDUCTED TO ENABLE THE ASSISTANT SECRETARY TO PERFORM HIS
FUNCTION IN A MATTER PENDING BEFORE HIM, I WOULD CONSIDER DECISION NO.
139 TO REQUIRE THE AGENCY TO COMPENSATE ITS EMPLOYEES FOR THEIR TIME AND
NECESSARY TRAVEL EXPENSES.
IT SHOULD BE NOTED THAT IN DECISION NO. 139, THE STATEMENT ON PAGE 7
THAT THE AGENCY IS OBLIGATED TO PAY FOR THE TIME OF EMPLOYEE-WITNESSES
IN A UNIT-DETERMINATION HEARING IS FOLLOWED IMMEDIATELY BY THE STATEMENT
THAT AN AGENCY IS NOT OBLIGATED TO PAY FOR THE TIME OF ITS EMPLOYEES WHO
APPEAR AT THE HEARING SOLELY AS UNION REPRESENTATIVES. THUS, THOSE WHO
ATTENDED THE SAME HEARING TO PRESENT AND EXAMINE THE WITNESSES ON BEHALF
OF THE UNION ARE EXPRESSLY EXCLUDED FROM THE REQUIREMENT OF AGENCY
REIMBURSEMENT. THUS IT IS NOT ONLY THE NATURE OF THE PROCEEDING BUT THE
FUNCTION PERFORMED AT THE PROCEEDING THAT GOVERNS. TO BE ENTITLED TO
OFFICIAL TIME, THE EMPLOYEE MUST APPEAR NOT ONLY IN AN INVESTIGATORY,
NON-ADVERSARY PROCEEDING, BUT MUST APPEAR ALSO IN A NON-ADVERSARY
CAPACITY AS A SUPPLIER OF INFORMATION.
THE RECORD IS QUITE MEAGER ON THE FUNCTION OF THE FOUR EMPLOYEES AT
THE DECEMBER 22 MEETING. WE KNOW ONLY THAT THE PURPOSE WAS TO TRY TO
DETERMINE WHO WAS INCLUDED AND WHO EXCLUDED FROM THE AGREED-UPON UNIT
BECAUSE OF QUESTIONS OF THE SUPERVISORY OR CONFIDENTIAL NATURE OF THEIR
FUNCTIONS, TO TRY TO AGREE UPON THE PROPER SCOPE OF THE UNIT. THE PART
PLAYED BY THE FOUR EMPLOYEES IN QUESTION IS NOWHERE CLEARLY SPELLED OUT.
THE ONE WITNESS CALLED BY COMPLAINANT, A REPRESENTATIVE OF THE AGENCY
WHO HAPPENED TO BE PRESENT AT THE HEARING, WAS UNABLE TO SAY THAT THE
FOUR AFGE MEN WHO ATTENDED THE DECEMBER 22 MEETING WERE THERE TO GIVE
EVIDENCE. /5/ NO OTHER WITNESSES WERE OFFERED. ALMOST ALL THE FACTS I
HAVE FOUND WERE OBTAINED BY STIPULATION AT THE HEARING, ALTHOUGH BOTH
SIDES WERE GIVEN FULL OPPORTUNITY TO PRESENT WITNESSES. THERE WAS NO
STIPULATION CONCERNING THE FUNCTION PERFORMED BY THE FOUR MEN. THEY ARE
REFERRED TO IN THE COMPLAINT /6/ AS REPRESENTING AFGE, AND COMPLAINANT'S
REPRESENTATIVE AT THE HEARING BEFORE ME REPEATEDLY REFERRED TO THEM AS
UNION REPRESENTATIVES. /7/ I THUS CANNOT CONCLUDE THAT THEY SERVED IN
ANY OTHER CAPACITY, AND THEREFORE CONCLUDE THEY WERE NOT ENTITLED UNDER
THE EXECUTIVE ORDER TO BE PAID BY THE AGENCY FOR THEIR TIME AND TRAVEL
EXPENSES.
NOR CAN I CONCLUDE, FROM THE FACT THAT THE RESPONDENT GRANTED THE
FOUR MEN ADMINISTRATIVE LEAVE FOR DECEMBER 22 FOR THE PURPOSE OF
ATTENDING THE MEETING, THAT THEY WERE THERE TO ENABLE THE ASSISTANT
SECRETARY TO PERFORM HIS FUNCTION. I DO NOT KNOW BY WHAT AUTHORITY
RESPONDENT GRANTED SUCH LEAVE, NOR IS IT MY FUNCTION TO DETERMINE
WHETHER IT WAS REQUIRED OR PROPER. THE FACT THAT RESPONDENT MAY HAVE
BEEN LENIENT IN GRANTING SUCH LEAVE DOES NOT MEAN THAT IT MUST BE MORE
LENIENT AND GRANT ALSO TRAVEL EXPENSES.
THE COMPLAINANT ASKS ALSO THAT THE TREASURY REGULATION AND THE
CUSTOMS POLICY PROHIBITING ADMINISTRATIVE LEAVE TO UNION REPRESENTATIVES
IN REPRESENTATION PROCEEDINGS BE DECLARED INVALID.
DETERMINATIONS OF THE VALIDITY OF AGENCY REGULATIONS SHOULD NOT BE
MADE BY US IN A FACTUAL VACUUM. THE APPLICATION OF THAT REGULATION AND
POLICY HAS ARISEN, SO FAR AS WE ARE INFORMED, ONLY TWICE. ONCE WAS THE
INCIDENT INVOLVED IN THIS PROCEEDING IN WHICH I HAVE FOUND THE POSITION
OF THE ACTIVITY TO BE VALID. THE OTHER WAS IN THE HEARING PRECEDING
DECISION NO. 210 INVOLVING THE SAME PARTIES. WITH RESPECT TO THAT
HEARING THE AGENCY PAID FOR THE TIME AND EXPENSES OF EMPLOYEES CALLED AS
WITNESSES. SURELY THE COMPLAINANT IS NOT COMPLAINING OF THAT. SO FAR
AS WE ARE INFORMED, THE REGULATION AND POLICY HAVE NEVER BEEN INVALIDLY
APPLIED. AND IT IS NOTED THAT THE REGULATION AND POLICY, LITERALLY,
PROHIBIT ADMINISTRATIVE LEAVE TO EMPLOYEES TO PARTICIPATE AS UNION
REPRESENTATIVES IN REPRESENTATION PROCEEDINGS. THIS DOES NOT CONTRAVENE
ANYTHING HELD OR SAID IN DECISION NO. 139.
I CONCLUDE THAT THERE IS NOTHING IN THE RECORD TO SUSTAIN THE CHARGED
VIOLATIONS OF SECTION 19(A) OF EXECUTIVE ORDER 11491.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
JANUARY 9, 1973
/1/ CASE NO. 52-2743(25).
/2/ THESE INDIVIDUALS WERE NOT IDENTIFIED AT THE HEARING, BUT THEY
ARE NAMED IN RESPONDENT'S BRIEF.
/3/ UNITED STATES CUSTOMS SERVICE, A/SLMR NO. 210.
/4/ THERE WAS NO EVIDENCE OF SUCH COSTS.
/5/ TR. 19.
/6/ SECTION 2 OF THE COMPLAINT.
/7/ ON PAGE 35, THREE TIMES ON PAGE 36, AND TWICE ON PAGE 37.
3 A/SLMR 256; P. 150; CASE NO. 62-3157(CA); MARCH 14, 1973.
DEPARTMENT OF THE ARMY,
RESERVE COMMAND HEADQUARTERS,
CAMP MCCOY, SPARTA, WISCONSIN,
102ND RESERVE COMMAND,
ST.LOUIS, MISSOURI
A/SLMR NO. 256
THIS CASE INVOLVED A COMPLAINT FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3254, AFL-CIO (COMPLAINANT) AGAINST THE
DEPARTMENT OF THE ARMY, RESERVE COMMAND HEADQUARTERS, CAMP MCCOY,
SPARTA, WISCONSIN, 102ND RESERVE COMMAND, ST. LOUIS, MISSOURI
(RESPONDENT) ALLEGING A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE
ORDER. SPECIFICALLY, THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) BY MAINTAINING A POLICY UNDER WHICH AN EMPLOYEE OF THE
RESPONDENT, WHO PARTICIPATED ON BEHALF OF THE COMPLAINANT AT A FORMAL
UNIT DETERMINATION HEARING BEING HELD PURSUANT TO THE REGULATIONS OF THE
ASSISTANT SECRETARY, WAS NOT PERMITTED TO PARTICIPATE ON OFFICIAL TIME.
THE RESPONDENT CONTENDED, AMONG OTHER THINGS, THAT THE DEPARTMENT OF
DEFENSE HAD ESTABLISHED A POLICY OF NOT GRANTING OFFICIAL TIME STATUS TO
EMPLOYEES APPEARING ON BEHALF OF LABOR ORGANIZATIONS AT SUCH
PROCEEDINGS, AND THAT AS A COMPONENT OF THE DEPARTMENT OF DEFENSE IT HAD
NO AUTHORITY TO DISREGARD THIS POLICY.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE AND BASED ON HIS
DECISION IN DEPARTMENT OF THE NAVY AND THE U.S. NAVAL WEAPONS STATION,
A/SLMR NO. 139, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) OF THE ORDER BY REFUSING TO MAINTAIN ON
OFFICIAL TIME STATUS AN EMPLOYEE WHO APPEARED AS A WITNESS AT THE UNIT
DETERMINATION HEARING ON BEHALF OF THE COMPLAINANT. HE FOUND ALSO THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) BY ITS EXISTING POLICY OF
REFUSING TO MAINTAIN ON OFFICIAL TIME STATUS NECESSARY WITNESSES WHO
APPEAR ON BEHALF OF A LABOR ORGANIZATION AT FORMAL UNIT DETERMINATION
HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY.
FURTHER, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE EMPLOYEE INVOLVED SHOULD BE PLACED ON OFFICIAL
TIME STATUS FOR THE ENTIRETY OF BOTH DAYS OF THE TWO-DAY HEARING. THE
ADMINISTRATIVE LAW JUDGE BASED HIS CONCLUSION IN THIS LATTER REGARD ON,
AMONG OTHER THINGS, THE FACT THAT THE EMPLOYEE WAS INSTRUCTED BY A
REPRESENTATIVE OF THE ASSISTANT SECRETARY TO APPEAR AT THE HEARING;
THAT HE WAS CALLED AS A WITNESS ON BOTH DAYS OF THE HEARING; THAT THE
EMPLOYEE HAD NOT BEEN ADVISED OF ANY CHANGE IN POLICY WITH RESPECT TO
LEAVE; AND THAT THERE WAS NO SHOWING OF ANY INCONVENIENCE ON THE PART
OF THE RESPONDENT.
ALSO, THE ASSISTANT SECRETARY NOTED THAT, IN THE FUTURE, IN ORDER TO
AVOID MISUNDERSTANDINGS AS TO THE STATUS OF A WITNESS TESTIFYING ON
BEHALF OF A LABOR ORGANIZATION AT A UNIT DETERMINATION HEARING HELD
PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY, THE LABOR
ORGANIZATION SEEKING THE APPEARANCE OF AN EMPLOYEE WITNESS SHOULD, PRIOR
TO THE HEARING, MAKE A REQUEST ON THE AGENCY OR ACTIVITY INVOLVED FOR
THE APPEARANCE OF THE EMPLOYEE WITNESS AT THE HEARING. IF THE
REQUESTING LABOR ORGANIZATION DESIRES THAT THE EMPLOYEE WITNESS BE ON
OFFICIAL TIME STATUS FOR THE PERIOD OF HIS PARTICIPATION IN THE HEARING,
THIS DESIRE SHOULD BE COMMUNICATED CLEARLY TO THE AGENCY OR ACTIVITY
INVOLVED. IN THIS CONNECTION, AFTER AN EMPLOYEE WITNESS HAS TESTIFIED,
AN AGENCY OR ACTIVITY MAY REQUEST THAT SUCH WITNESS RETURN TO WORK.
DEPARTMENT OF THE ARMY,
RESERVE COMMAND HEADQUARTERS,
CAMP MCCOY, SPARTA, WISCONSIN,
102ND RESERVE COMMAND,
ST. LOUIS, MISSOURI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3154, AFL-CIO
ON NOVEMBER 8, 1972, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT CEASE AND DESIST FROM SUCH CONDUCT
AND TAKE CERTAIN AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES
AND PROVISIONS OF THE ORDER. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
RESPONDENT'S EXCEPTIONS AND THE PARTIES' BRIEFS, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE.
THE RESPONDENT EXCEPTED TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
ORDER /1/ ON THE GROUNDS THAT (A) AS A COMPONENT OF THE DEPARTMENT OF
DEFENSE (DOD), THE DEPARTMENT OF THE ARMY HAS NO AUTHORITY TO DISREGARD
THE PROVISONS OF A DOD CONTROLLING REGULATION AND, THEREFORE, IT
PROPERLY COMPLIED WITH THE REGULATIONS IN DENYING OFFICIAL TIME STATUS
TO EMPLOYEES REPRESENTING OR APPEARING ON BEHALF OF A LABOR ORGANIZATION
IN A HEARING HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT
SECRETARY; AND (B) A CASE PRESENTING A SIMILAR FACTUAL SITUATION /2/
CURRENTLY IS PENDING BEFORE THE FEDERAL LABOR RELATIONS COUNCIL ON
APPEAL.
IN CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, I REJECTED A RESPONDENT'S
CONTENTION CONCERNING THE CONTROLLING EFFECT OF AGENCY DIRECTIVES OR
POLICY GUIDANCE AS A DEFENSE TO ALLEGEDLY VIOLATIVE CONDUCT. WITH
RESPECT TO THE RESPONDENT'S SECOND EXCEPTION, NOTED ABOVE, IN MY VIEW,
THE FACT THAT A CASE PRESENTING A SIMILAR FACTUAL SITUATION CURRENTLY IS
BEFORE THE FEDERAL LABOR RELATIONS COUNCIL DOES NOT WARRANT DEFERRAL OF
A DECISION IN THIS MATTER BY THE ASSISTANT SECRETARY.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION, I
FIND THAT IN THE CIRCUMSTANCES OF THIS CASE, THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE ORDER BY PLACING THOMAS ON ANNUAL LEAVE ON
FEBRUARY 9 AND 10, 1972, RATHER THAN ON OFFICIAL TIME STATUS, AND BY ITS
MAINTENANCE OF A POLICY OF REFUSING TO MAINTAIN ON OFFICIAL TIME STATUS
NECESSARY WITNESSES WHO APPEAR ON BEHALF OF A LABOR ORGANIZATION AT
FORMAL UNIT DETERMINATION HEARINGS HELD PURSUANT TO THE REGULATIONS OF
THE ASSISTANT SECRETARY. /3/
IN THE FUTURE, IN ORDER TO AVOID MISUNDERSTANDINGS AS TO THE STATUS
OF A WITNESS TESTIFYING ON BEHALF OF A LABOR ORGANIZATION AT A UNIT
DETERMINATION HEARING HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT
SECRETARY, THE LABOR ORGANIZATION SEEKING THE APPEARANCE OF AN EMPLOYEE
WITNESS SHOULD, PRIOR TO THE HEARING, MAKE A REQUEST ON THE AGENCY OR
ACTIVITY INVOLVED FOR THE APPEARANCE OF THE EMPLOYEE WITNESS AT THE
HEARING. IF THE REQUESTING LABOR ORGANIZATION DESIRES THAT THE EMPLOYEE
WITNESS BE ON OFFICIAL TIME STATUS FOR THE PERIOD OF HIS PARTICIPATION
IN THE HEARING, THIS DESIRE SHOULD BE COMMUNICATED CLEARLY TO THE AGENCY
OR ACTIVITY INVOLVED. IN THIS CONNECTION, AFTER AN EMPLOYEE WITNESS HAS
TESTIFIED, AN AGENCY OR ACTIVITY MAY REQUEST THAT SUCH WITNESS RETURN TO
WORK.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I
SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE
SPECIFIC AFFIRMATIVE ACTION, SET FORTH BELOW, DESIGNED TO EFFECTUATE THE
POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
ARMY, RESERVE COMMAND HEADQUARTERS, CAMP MCCOY, SPARTA, WISCONSIN, 102ND
RESERVE COMMAND, ST. LOUIS, MISSOURI, SHALL:
1. CEASE AND DESIST FROM:
INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES BY PROMULGATING
OR MAINTAINING A POLICY OF REFUSING TO MAKE AVAILABLE ON OFFICIAL TIME
NECESSARY UNION WITNESSES FOR PARTICIPATION AT FORMAL UNIT DETERMINATION
HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
A. RESTORE TO MR. CLIFFORD THOMAS ALL ANNUAL LEAVE WITH WHICH HE WAS
CHARGED FOR BOTH FEBRUARY 9 AND 10, 1972, BECAUSE OF HIS ATTENDING AND
TESTIFYING AT THE FORMAL UNIT DETERMINATION HEARING IN CASE NO.
62-2361(RO).
B. TAKE SUCH ACTION AS IS NECESSARY IN ORDER TO BRING ITS
REGULATIONS INTO COMPLIANCE WITH THE REQUIREMENT THAT NECESSARY UNION
WITNESSES BE MADE AVAILABLE ON OFFICIAL TIME TO PARTICIPATE IN FORMAL
UNIT DETERMINATION HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
C. POST AT THE ARMY RESERVE COMMAND HEADQUARTERS, CAMP MCCOY,
SPARTA, WISCONSIN, 102ND RESERVE COMMAND, ST. LOUIS, MISSOURI, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR
COVERED BY ANY OTHER MATERIAL.
D. PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
MARCH 14, 1973
/1/ THE RECOMMENDED ORDER REQUIRED, IN PART, THAT THE RESPONDENT
RESTORE TO THOMAS ALL ANNUAL LEAVE FOR WHICH HE WAS CHARGED FOR BOTH
FEBRUARY 9 AND 10, 1972, AND TAKE SUCH ACTION AS IS NECESSARY TO BRING
ITS REGULATIONS INTO COMPLIANCE WITH THE REQUIREMENT THAT NECESSARY
UNION WITNESSES BE MADE AVAILABLE ON OFFICIAL TIME TO PARTICIPATE IN
FORMAL UNIT DETERMINATION HEARINGS.
/2/ DEPARTMENT OF THE NAVY AND THE U.S. NAVAL WEAPONS STATION, A/SLMR
NO. 139.
/3/ CF. DEPARTMENT OF THE NAVY AND THE U.S. NAVAL WEAPONS STATION,
CITED ABOVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES BY
PROMULGATING OR MAINTAINING A POLICY OF REFUSING TO MAKE AVAILABLE ON
OFFICIAL TIME NECESSARY UNION WITNESSES FOR PARTICIPATION AT FORMAL UNIT
DETERMINATION HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
WE WILL RESTORE TO MR. CLIFFORD THOMAS ALL ANNUAL LEAVE WITH WHICH HE
WAS CHARGED FOR BOTH FEBRUARY 9 AND 10, 1972 BECAUSE OF HIS ATTENDING
AND TESTIFYING AT THE FORMAL UNIT DETERMINATION HEARING IN CASE NO.
62-2361(RO).
WE WILL TAKE SUCH ACTION AS IS NECESSARY IN ORDER TO BRING OUR
REGULATIONS INTO COMPLIANCE WITH THE REQUIREMENT THAT NECESSARY UNION
WITNESSES BE MADE AVAILABLE ON OFFICIAL TIME FOR PARTICIPATION IN FORMAL
UNIT DETERMINATION HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
DATED: . . . BY: . . .
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 2511, FEDERAL OFFICE
BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI 64106.
DEPARTMENT OF THE ARMY
RESERVE COMMAND HEADQUARTERS
CAMP MCCOY, SPARTA, WISCONSIN
102ND RESERVE COMMAND
ST. LOUIS, MISSOURI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3154
GEORGE W. LUNDY, CHIEF OF MANAGEMENT
EMPLOYEES RELATION DIVISION,
CIVILIAN PERSONNEL OFFICE,
CAMP MCCOY, SPARTA, WISCONSIN 54656, AND
ARTHUR R. CHANDLER, PERSONNEL MANAGEMENT
SPECIALIST, CIVILIAN PERSONNEL MANAGEMENT,
CAMP MCCOY, SPARTA, WISCONSIN 54656, ON
BEHALF OF RESPONDENT.
GLENN PETERSON, AREA DIRECTOR OF ORGANIZATION,
POST OFFICE BOX 5699, ST. LOUIS, MISSOURI,
63121, AND
WILLIAM MARTIN, JR., NATIONAL REPRESENTATIVE,
4830 CUPPLES PLACE, ST. LOUIS, MISSOURI,
63113, ON BEHALF OF COMPLAINANT.
BEFORE: SAMUEL A. CHAITOVITZ, ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREINCALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON JUNE 22, 1972, BY
THE REGIONAL ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES ADMINISTRATION,
KANSAS CITY REGION, BASED ON A COMPLAINT FILED BY AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES LOCAL 3154 (HEREINCALLED THE UNION), AGAINST
DEPARTMENT OF THE ARMY RESERVE COMMAND HEADQUARTERS, CAMP MCCOY, SPARTA,
WISCONSIN, 102ND RESERVE COMMAND, SAINT LOUIS, MISSOURI (HEREINCALLED
THE ACTIVITY). THE COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) OF THE ORDER BY PLACING MR. CLIFFORD THOMAS, AN EMPLOYEE, ON
ANNUAL LEAVE RATHER THAN ON DUTY STATUS /1/ FOR BOTH FEBRUARY 9 AND 10,
1972, DURING WHICH DAYS HE WAS ALLEGEDLY A WITNESS AND TESTIFYING ON
BEHALF OF THE UNION AT A REPRESENTATION HEARING CONDUCTED PURSUANT TO
THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON AUGUST 29 AND 30, 1972
AT ST. LOUIS, MISSOURI. BOTH PARTIES WERE REPRESENTED AT THE HEARING,
AND THEIR REPRESENTATIVES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, /2/ AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. /3/ BOTH PARTIES FILED BRIEFS
WITH THE UNDERSIGNED.
FROM THE ENTIRE RECORD IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY ADDUCED AT
THE HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS:
A FORMAL REPRESENTATION HEARING WAS HELD BEFORE HEARING OFFICER ROGER
SCHLEUTER IN CASE NO. 62-2361(RO) ON AUGUST 25, 1971 IN THE FEDERAL
BUILDING. THE PURPOSE OF THE HEARING WAS TO DETERMINE IF THE UNIT
PETITIONED FOR WAS APPROPRIATE. MR. CLIFFORD THOMAS /4/ WAS PRESENT AT
THE HEARING FOR THE ENTIRE DAY BUT ACTUALLY TOOK THE WITNESS STAND AND
TESTIFIED ONLY DURING THE AFTERNOON AND HIS TESTIMONY LASTED
APPROXIMATELY FOUR HOURS. /5/ THE ACTIVITY'S REPRESENTATIVE AT THE
AUGUST 25 HEARING, MR. ARTHUR CHANDLER, TESTIFIED THAT HE COULD NOT
LOCATE OR RECALL ANY NOTICES FROM THE DEPARTMENT OF LABOR ADVISING THE
ACTIVITY OF THE IDENTITY OF THE WITNESSES TO BE CALLED ON BEHALF OF THE
UNION. MR. THOMAS WAS MAINTAINED ON PAY STATUS AND NOT ON LEAVE STATUS
DURING THAT ENTIRE DAY. /6/
THE REPRESENTATION CASE WAS REMANDED FOR FURTHER HEARING AND THE
REOPENED HEARING WAS HELD ON FEBRUARY 9 AND 10 AT THE ARMY CENTER WHICH
IS DIRECTLY ACROSS THE STREET FROM THE PLACE MR. THOMAS WORKS. ON
FEBRUARY 3 OR 4, AT A PREHEARING MEETING, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES' AREA DIRECTOR OF ORGANIZATION GLEN J. PETERSON,
ADVISED A DEPARTMENT OF LABOR REPRESENTATIVE THAT HE WANTED MR. THOMAS
AS A WITNESS AND INQUIRED WHETHER HE SHOULD NOTIFY THE ACTIVITY THAT MR.
THOMAS WOULD BE A WITNESS. THE DEPARTMENT OF LABOR REPRESENTATIVE SAID
THAT THE DEPARTMENT OF LABOR WOULD NOTIFY BOTH THE ACTIVITY AND MR.
THOMAS THAT MR. THOMAS WOULD APPEAR AS A WITNESS. /7/ THE UNION
REQUESTED ONLY TWO WITNESSES TO BE PRESENT, MR. THOMAS AND COL. WILLIAM
B. HOLADAY; THE LATTER IS THE STAFF ADMINISTRATIVE ASSISTANT FOR THE
102ND U.S. ARMY RESERVE COMMAND AND WAS ALSO REQUESTED BY THE ACTIVITY.
IN FACT MR. HOLADAY WAS CALLED AS A WITNESS BY THE ACTIVITY. ON BOTH
FEBRUARY 9 AND 10 THE HEARING LASTED FROM APPROXIMATELY 9 A.M. TO 5:00
P.M. WITH A SHORT LUNCH BREAK AND A COUPLE OF COFFEE BREAKS EACH DAY.
MR.THOMAS DID TAKE THE STAND ON FEBRUARY 9 AND THE PARTIES HEREIN
STIPULATED HE TESTIFIED IN THE AFTERNOON FOR APPROXIMATELY 15 TO 30
MINUTES. THE FEBRUARY 9 TRANSCRIPT INDICATES THAT THE HEARING RAN FROM
PAGE 163-375. THE RECORD SHOWS THAT MR. THOMAS WAS SWORN IN ON PAGE 317
AND EXCUSED ON PAGE 331. AT THE BEGINNING OF THE HEARING MR. PETERSON
STATED THAT MR. THOMAS WAS APPEARING ON BEHALF OF THE UNION. THIS
STATEMENT WAS MADE ON PAGE 166. THE REPRESENTATIVE OF THE RESPONDENT
RAISED NO OBJECTION ON THE RECORD. AT PAGE 177, BEFORE ANY WITNESSES
HAD BEEN CALLED AND AFTER AN OFF THE RECORD DISCUSSION, THE HEARING
OFFICER STATED THAT MR. THOMAS WOULD ONLY BE AN ALTERNATE REPRESENTATIVE
IF FOR ANY REASON MR. PETERSON, THE UNION REPRESENTATIVE HAD TO LEAVE.
HE STATED "OTHER THAN THAT, HE (THOMAS) WILL NOT BE THE REPRESENTATIVE."
MR. PETERSON TESTIFIED THAT THE ACTIVITY'S REPRESENTATIVES HAD OBJECTED
TO MR. THOMAS BEING A UNION REPRESENTATIVE. THIS DOES NOT APPEAR ON THE
RECORD OF THE REPRESENTATION HEARING, ALTHOUGH IT MIGHT HAVE OCCURRED
DURING OFF THE RECORD DISCUSSIONS. IN ANY EVENT A FINDING OF WHETHER OR
NOT RESPONDENT OBJECTED TO MR. THOMAS APPEARING AS A UNION
REPRESENTATIVE IS NOT NECESSARY. /8/
ON FEBRUARY 10, MR. THOMAS TOOK THE STAND AS THE LAST WITNESS AND
TESTIFIED FOR ONE AND ONE-HALF TO TWO HOURS. /9/ MR. THOMAS DID ALSO
MAKE SOME SHORT COMMENTS ON THE RECORD AT VARIOUS TIMES DURING THE
HEARING AND PARTICIPATED IN THE OFF THE RECORD DISCUSSIONS. I CONCLUDE
THAT DURING SUCH TIMES HE WAS ASSISTING THE UNION REPRESENTATIVE.
THE ACTIVITY PLACED MR. THOMAS ON ANNUAL LEAVE, AND NOT ON PAY
STATUS, FOR THE ENTIRETY OF BOTH FEBRUARY 9 AND 10. /10/ MR. THOMAS WAS
NOT ADVISED AND DID NOT LEARN, HOWEVER, THAT HE WAS NOT CARRIED ON PAY
STATUS FOR FEBRUARY 9 AND 10 UNTIL TWO TO FOUR WEEKS AFTER THE HEARING
CLOSED. ALL WITNESSES THAT APPEARED AT THE REPRESENTATION HEARING AT
THE REQUEST OF THE ACTIVITY WERE ON PAY STATUS AND WERE NOT PLACED ON
ANNUAL LEAVE.
THE SUBJECT CASE IS VERY SIMILAR TO DEPARTMENT OF THE NAVY AND THE
U.S. NAVAL WEAPONS STATION, A/SLMR NO. 139. /11/ IN THE U.S. NAVAL
WEAPONS STATION CASE, SUPRA, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS STATED ON PAGE 6 OF HIS DECISION:
"IN THE FEDERAL SECTOR, EXECUTIVE ORDER 11491 REPEATEDLY RECOGNIZES
THAT THE WELL-BEING OF EMPLOYEES AND EFFICIENT ADMINISTRATION OF THE
GOVERNMENT ARE BENEFITTED BY PROVIDING EMPLOYEES AN OPPORTUNITY TO
PARTICIPATE IN THE FORMULATION AND IMPLEMENTATION OF PERSONNEL POLICIES
AND PRACTICES AFFECTING THE CONDITIONS OF THEIR EMPLOYMENT. AN
APPLICATION OF THE EXECUTIVE ORDER PHILOSOPHY OF ENCOURAGING SUCH
RELATIONSHIPS WOULD, IN MY VIEW, REQUIRE NECESSARILY THAT AGENCY
MANAGEMENT MAKE AVAILABLE ON OFFICIAL TIME ESSENTIAL WITNESSES AT
NONADVERSARY FACT-FINDING PROCEEDINGS HELD PURSUANT TO THE REGULATIONS
OF THE ASSISTANT SECRETARY TO ASSURE A FULL AND FAIR HEARING BASED UPON
WHICH I CAN FULFIL THE RESPONSIBILITY ASSIGNED ME BY THE PRESIDENT UNDER
SECTION 6(A)(1) OF EXECUTIVE ORDER 11491."
THE ASSISTANT SECRETARY WENT ON TO CONCLUDE:
"BY THE IMPLEMENTATION AND EFFECTUATION OF A POLICY OF REFUSING TO
MAKE AVAILABLE ON OFFICIAL TIME NECESSARY UNION WITNESSES FOR
PARTICIPATION AT A FORMAL UNIT DETERMINATION HEARING HELD PURSUANT TO
THE REGULATIONS OF THE ASSISTANT SECRETARY, THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491." /12/
THE SUBJECT CASE PRESENTS A SIMILAR FACTUAL SITUATION TO THE ONE
PRESENT IN THE NAVAL WEAPONS STATION CASE, SUPRA. MR. THOMAS WAS ON PAY
STATUS FOR HIS AUGUST 25 APPEARANCE BUT NOT FOR HIS FEBRUARY 9 AND 10
APPEARANCES. /13/ IT IS UNDISPUTED THAT MR. THOMAS WAS INSTRUCTED BY
THE DEPARTMENT OF LABOR TO APPEAR ON FEBRUARY 9 AS A WITNESS AT THE
REPRESENTATION HEARING AND THAT HE DID TAKE THE WITNESS STAND AND
TESTIFY ON BOTH FEBRUARY 9 AND 10. AT NO TIME DID THE ACTIVITY PROTEST
HIS PRESENCE AS A WITNESS, NOR HAS IT AT ANY TIME CONTEND THAT HIS
PRESENCE DURING THE TWO DAYS OF HEARING, FEBRUARY 9 OR 10, UNDULY
INCONVENIENCED THE ACTIVITY OR WAS AN ABUSE OF ANY KIND.
THE ACTIVITY CONTENDS, HOWEVER, THAT IT HAD NOT BEEN ADVISED IN
ADVANCE THAT MR. THOMAS WAS TO BE CALLED AS A WITNESS FOR TWO DAYS AND
HAD IT BEEN SO ADVISED IT WOULD HAVE TAKEN EXCEPTION. THE NAVAL WEAPONS
STATION CASE, SUPRA AT PAGE 10, SPECIFICALLY DOES NOT REQUIRE ALL
REQUESTS FOR WITNESSES TO BE CHANNELED THROUGH THE ASSISTANT SECRETARY'S
REPRESENTATIVES, BUT MERELY WHEN NOTICE IS GIVEN TO AGENCY MANAGEMENT,
IT MAKE ITS OBJECTIONS KNOWN. IN THE INSTANT CASE, THE UNION DID,
HOWEVER, ATTEMPT TO FOLLOW THE PROCEDURES DESCRIBED IN THE NAVAL WEAPONS
STATION CASE, SUPRA, AND DID NOTIFY THE ASSISTANT SECRETARY'S
REPRESENTATIVE. THE ACTIVITY DOES NOT CONTEND MR. THOMAS WAS NOT AN
ESSENTIAL WITNESS, IT DID NOT PRESENT ANY REASONS AS TO WHY MR. THOMAS
SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY OR ON WHAT GROUNDS IT WOULD
HAVE PROTESTED OR OPPOSED HIS BEING CALLED AS A WITNESS IN THE
REPRESENTATION CASE. FURTHER IT MUST BE NOTED THAT MR. THOMAS WAS THE
ONLY EMPLOYEE TO TESTIFY AT THE UNIT DETERMINATION HEARING AT THE
REQUEST OF THE UNION AND THEREFORE IT CANNOT BE URGED THAT CALLING HIM
AS A WITNESS WAS AN ABUSE ON THE UNION'S PART.
IT IS QUITE CLEAR THAT WHEN HE WAS NOT ACTUALLY TESTIFYING AT THE
REPRESENTATION HEARING MR. THOMAS AIDED AND ASSISTED THE UNION
REPRESENTATIVE. /14/ THE ACTIVITY URGES THEREFORE THAT BECAUSE MR.
THOMAS ACTED "PREPONDERANTLY" AS A REPRESENTATIVE OF THE UNION THEY ARE
NOT REQUIRED TO MAINTAIN SUCH PERSONNEL ON PAY STATUS, EVEN THOUGH HE
TESTIFIES AT THE REPRESENTATION HEARING. THE ASSISTANT SECRETARY HELD
IN THE NAVAL WEAPONS STATION CASE, SUPRA, AT PAGE 7: "FURTHER, I FIND
THAT AGENCIES ARE NOT OBLIGATED TO MAKE AVAILABLE ON OFFICIAL TIME ANY
EMPLOYEES WHO APPEAR SOLELY AS UNION REPRESENTATIVES. THUS, IN MY VIEW,
AN EMPLOYEE WHO REPRESENTS A UNION AT A UNIT DETERMINATION HEARING IS,
IN EFFECT, WORKING FOR THAT UNION AND AGENCIES SHOULD NOT BE OBLIGATED
TO GRANT OFFICIAL TIME TO SUCH AN EMPLOYEE." TO EXPAND THIS PRINCIPAL TO
EXCLUDE FROM PAY STATUS ANY EMPLOYEE-WITNESS SOLELY BECAUSE HE MAY ALSO
FAVOR OR ASSIST THE UNION WHILE HE IS NOT ON THE WITNESS STAND WOULD BE
INCONSISTENT WITH THE REASONING OF THE NAVAL WEAPONS STATION CASE,
SUPRA, AND WOULD CONSTITUTE INTERFERENCE WITH EMPLOYEE RIGHTS AS
PROTECTED BY THE ORDER.
THEREFORE, IN THE CIRCUMSTANCES HERE PRESENT AND FOR REASONS SET
FORTH BY THE ASSISTANT SECRETARY IN DEPARTMENT OF THE NAVY AND THE U.S.
NAVAL WEAPONS STATION, SUPRA, I FIND THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) OF THE ORDER WHEN IT PLACED MR. THOMAS ON ANNUAL LEAVE ON
FEBRUARY 9 AND 10 RATHER THAN ON PAY STATUS /15/ AND FURTHER THAT ITS
ADMITTED POLICY AS SET FORTH IN ITS REGULATIONS PARTICULARLY CPR 700
(CH. 9) 711 PARA. VII A.3.B., DATED APRIL 26, 1972, OF REFUSING TO
MAINTAIN ON DUTY STATUS WITNESSES WHO APPEAR ON BEHALF OF LABOR
ORGANIZATIONS AT FORMAL UNIT DETERMINATION HEARINGS ALSO VIOLATES
SECTION 19(A)(1) OF THE ORDER.
THE NEXT QUESTION PRESENTED IS WHETHER MR. THOMAS SHOULD BE ON PAY
STATUS FOR THE ENTIRETY OF BOTH DAYS, FEBRUARY 9 AND 10, OR MERELY FOR
THE PRECISE TIME HE WAS ACTUALLY TESTIFYING. AGAIN, IN THE
CIRCUMSTANCES HERE PRESENT NOTING PARTICULARLY THAT HE WAS A WITNESS ON
BOTH DAYS, THAT HE WAS AT THE HEARING AT THE INSTRUCTION OF THE HEARING
OFFICER, THAT HE HAD NOT BEEN ADVISED OF ANY CHANGE IN POLICY WITH
RESPECT TO LEAVE, /16/ THAT THERE WAS NO SHOWING OF ANY INCONVENIENCE ON
THE PART OF THE ACTIVITY AND ALSO BECAUSE OF THE DIFFICULTY PRESENT IN
CONDUCTING SUCH A FORMAL UNIT DETERMINATION HEARING AND SCHEDULING
WITNESSES, TO CONCLUDE THAT MR. THOMAS SHOULD BE ON PAY STATUS ONLY FOR
THE PRECISE TIME HE APPEARED ON THE WITNESS STAND WOULD FRUSTRATE THE
POLICIES OF THE ORDER FOR THE REASONS SET FORTH IN U.S. NAVAL WEAPONS
STATION CASE, SUPRA. I CONCLUDE THEREFORE THAT HE SHOULD BE ON PAY
STATUS FOR THE ENTIRETY OF BOTH DAYS AND THAT THE ACTIVITY'S PLACING OF
MR. THOMAS ON ANNUAL LEAVE FOR FEBRUARY 9 AND 10, 1972, WAS CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF THE ORDER.
THE UNION REQUESTS A FINDING, BASED ON THE RECORD IN THE INSTANT
PROCEEDING, THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ACT BY
REFUSING TO ALLOW MR. THOMAS TO REMAIN ON DUTY STATUS WHILE TESTIFYING
IN THE INSTANT UNFAIR LABOR PRACTICE HEARING. BECAUSE NO NEW UNFAIR
LABOR PRACTICE CHARGE WAS FILED, THE COMPLAINT WAS NOT AMENDED AND THIS
RAISES NEW AND DISTINCT MATTERS NOT ENCOMPASSED BY THE COMPLAINT AND
NOTICE OF HEARING IN THE INSTANT CASE, I CONCLUDE THAT WHETHER THE
ACTIVITY VIOLATED THE ORDER BY REFUSING TO ALLOW MR. THOMAS TO TESTIFY
IN THE HEARING IN THE INSTANT CASE WHILE ON DUTY STATUS, IS NOT PROPERLY
BEFORE ME.
IN VIEW OF MY FINDINGS AND CONCLUSIONS STATED ABOVE, I MAKE THE
FOLLOWING RECOMMENDATIONS TO THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS:
1. THAT THE UNION'S REQUEST THAT THE ASSISTANT SECRETARY FIND THAT
THE ACTIVITY VIOLATED EXECUTIVE ORDER 11491 BY REFUSING TO ALLOW MR.
THOMAS TO REMAIN ON PAY STATUS WHILE TESTIFYING IN THE SUBJECT UNFAIR
LABOR PRACTICE HEARING BE DENIED;
2. THAT IN LIGHT OF THE CONCLUSION THAT RESPONDENT ENGAGED IN
CONDUCT PROSCRIBED BY SECTION 19(A)(1) OF THE EXECUTIVE ORDER 11491, HE
ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO EFFECTUATE THE POLICIES
OF EXECUTIVE ORDER 11491.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE ARMY
RESERVE COMMAND HEADQUARTERS, CAMP MCCOY, SPARTA, WISCONSIN, 102 RESERVE
COMMAND SAINT LOUIS MISSOURI SHALL:
1. CEASE AND DESIST FROM:
INTERFERRING WITH, RESTRAINING OR COERCING EMPLOYEES BY PROMULGATING
OR MAINTAINING A POLICY OF REFUSING TO MAKE AVAILABLE ON OFFICIAL TIME
NECESSARY UNION WITNESSES FOR PARTICIPATION AT A FORMAL UNIT
DETERMINATION HEARING HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISONS OF THE ORDER:
A) RESTORE TO MR. CLIFFORD THOMAS ALL ANNUAL LEAVE WITH WHICH HE WAS
CHARGED FOR BOTH FEBRUARY 9 AND 10, 1972, BECAUSE OF HIS ATTENDING AND
TESTIFYING AT THE FORMAL UNIT DETERMINATION HEARING IN CASE NO.
62-2361(RO).
B) TAKE SUCH ACTION AS IS NECESSARY IN ORDER TO BRING ITS
REGULATIONS, PARTICULARLY CPR 700 (CH. 9) 711 PARA. VII A.3.B., INTO
COMPLIANCE WITH THE REQUIREMENT THAT NECESSARY UNION WITNESSES BE MADE
AVAILABLE ON OFFICIAL TIME TO PARTICIPATE IN FORMAL UNIT DETERMINATION
HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS.
C) POST AT ITS FACILITY AT THE 102ND RESERVE COMMAND, SAINT LOUIS
MISSOURI, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
COMMANDING OFFICER AND SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY
(60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TEN (10) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED AT WASHINGTON, D.C.
NOVEMBER 8, 1972
WE WILL NOT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES BY
PROMULGATING OR MAINTAINING A POLICY OF REFUSING TO MAKE AVAILABLE ON
OFFICIAL TIME NECESSARY UNION WITNESSES FOR PARTICIPATION AT A FORMAL
UNIT DETERMINATION HEARING HELD PURSUANT TO THE REGULATIONS OF THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
WE WILL RESTORE TO MR. CLIFFORD THOMAS ALL ANNUAL LEAVE WITH WHICH HE
WAS CHARGED FOR BOTH FEBRUARY 9 & 10, 1972 BECAUSE OF HIS ATTENDING AND
TESTIFYING AT THE FORMAL UNIT DETERMINATION HEARING IN CASE NO.
62-2361(RO).
WE WILL TAKE SUCH ACTION AS IS NECESSARY IN ORDER TO BRING OUR
REGULATIONS, PARTICULARLY CPR 700 (CH 9) 711 PARA. VII A.3.B., INTO
COMPLIANCE WITH THE REQUIREMENT THAT NECESSARY UNION WITNESSES BE MADE
AVAILABLE ON OFFICIAL TIME FOR PARTICIPATION IN FORMAL UNIT
DETERMINATION HEARINGS HELD PURSUANT TO THE REGULATIONS OF THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
DATED: . . . BY . . .
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 2511, FEDERAL OFFICE
BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI 64106.
/1/ "DUTY STATUS" HEREIN MEANS BEING PAID FOR THE TIME IN QUESTION
AND NOT BEING REQUIRED TO TAKE ANNUAL LEAVE OR LEAVE WITHOUT PAY. IT
MAY HEREINAFTER ALSO BE REFERRED TO AS "PAY STATUS" AND "OFFICIAL TIME."
/2/ THE UNION ASKED THE UNDERSIGNED TO REQUEST MR. THOMAS TO APPEAR
AND TESTIFY AT THE HEARING. THE UNDERSIGNED CONCLUDED THAT MR. THOMAS'S
TESTIMONY WOULD BE HELPFUL AND THE UNION'S REQUEST WAS GRANTED. THE
ACTIVITY ADVISED, HOWEVER, THAT ALTHOUGH MR. THOMAS WOULD BE ALLOWED TO
ATTEND AND TESTIFY, HE WOULD NOT BE MAINTAINED ON PAY STATUS DURING THIS
TIME. IN THESE CIRCUMSTANCES THE UNION WITHDREW ITS REQUEST AND MR.
THOMAS WAS NOT ASKED BY THE UNDERSIGNED AND HE DID NOT TESTIFY IN THE
SUBJECT HEARING.
/3/ THE FOLLOWING CORRECTIONS HAVE BEEN NOTED AND SHALL BE MADE TO
THE RECORD:
PAGE 26, LINE 6 SHALL BE CORRECTED TO READ-- "NOT TESTIFY, AND THAT I
CANNOT ACT AND, AT THIS TIME, OVERRULE".
PAGE 26, LINE 24-- "24TH" SHOULD BE CHANGED TO "25TH".
PAGE 60, LINE 22 SHOULD BE CORRECTED TO READ-- "NOTED ON HIS TIME AND
ATTENDANCE CARD, THIS WOULD NOT IN AND OF".
/4/ MR. CLIFFORD THOMAS, AN EMPLOYEE OF THE ACTIVITY, WORKED AT 6400
STRATFORD AVENUE, APPROXIMATELY 12 MILES FROM THE PLACE OF THE
REPRESENTATION HEARING.
/5/ JUDICIAL NOTICE IS TAKEN OF THE OFFICIAL TRANSCRIPT OF THE
REPRESENTATION HEARING HELD IN DEPARTMENT OF THE ARMY HEADQUARTERS CAMP
MCCOY, SPARTA, WISCONSIN, CASE NO. 62-2361(RO). IN THIS REGARD THE
TRANSCRIPT INDICATES THAT 162 PAGES OF TRANSCRIPT WERE TAKEN ON AUGUST
25, 1971 AND THAT MR. THOMAS WAS CALLED TO THE WITNESS STAND ON PAGE 106
AND EXCUSED ON PAGE 146.
/6/ THE ACTIVITY INTRODUCED NO EVIDENCE THAT THIS WAS AN ERROR ON
THEIR PART OR THAT MR. THOMAS WAS EVER ADVISED THAT IT WAS AN ERROR.
/7/ THE ACTIVITY DENIES THAT IT WAS EVER NOTIFIED BY THE DEPARTMENT
OF LABOR, OR ANYONE ELSE, THAT MR. THOMAS WOULD APPEAR AS A WITNESS.
MR. THOMAS, HOWEVER, WAS SO NOTIFIED IN WRITING BY THE DEPARTMENT OF
LABOR. HE WAS INSTRUCTED BY THE DEPARTMENT OF LABOR TO APPEAR ON
FEBRUARY 9 AT THE OPENING OF THE HEARING. THE ACTIVITY KNEW IN ADVANCE
THAT MR. THOMAS WOULD APPEAR AT THE HEARING, ALTHOUGH NOT NECESSARILY AS
A WITNESS. FURTHER IT WAS CLEAR THE ACTIVITY KNEW OR SHOULD HAVE KNOWN
THAT MR. THOMAS DID NOT KNOW HE WAS ON ANNUAL LEAVE SINCE HE HAD NOT
APPLIED FOR ANY IN ADVANCE, WHICH WAS THE PRACTICE AT THE ACTIVITY.
ALTHOUGH A WITNESS ON BEHALF OF THE ACTIVITY TESTIFIED THAT THEY DID NOT
KNOW EVEN AFTER THE HEARING STARTED THE IDENTITY OF THE UNION WITNESSES,
IN FACT MR. THOMAS WAS THE ONLY EMPLOYEE CALLED AS A WITNESS AT THE
REQUEST OF THE UNION AND THERE WAS NO EVIDENCE THAT THERE WAS A LARGE
NUMBER OF EMPLOYEES PRESENT AS SPECTATORS AT THE HEARING WHO MIGHT HAVE
CONFUSED THE ACTIVITY'S REPRESENTATIVES.
/8/ IT IS NOTED THAT THE FRONT OF THE TRANSCRIPT FOR BOTH FEBRUARY 9
AND 10 LISTS MR. THOMAS AS BEING, TOGETHER WITH MR. PETERSON, A UNION
REPRESENTATIVE.
/9/ THE RECORD FOR FEBRUARY 10 RUNS FROM PAGE 376 TO PAGE 626. MR.
THOMAS WAS SWORN IN ON PAGE 566 AND EXCUSED ON PAGE 618.
,/10/ THE ACTIVITY'S POLICY WAS, AT THE TIME OF THE REPRESENTATION
HEARING ON FEBRUARY 9 AND 10, THAT WITNESSES APPEARING ON BEHALF OF
LABOR ORGANIZATIONS WERE NOT TO BE ON PAY STATUS FOR THE TIME THEY WERE
WITNESSES. ALTHOUGH THERE IS SOME QUESTION ON THE RECORD AS TO WHAT THE
DEPARTMENT OF THE ARMY'S PRINTED REGULATIONS WERE ON FEBRUARY 9 AND 10,
IT IS CLEAR THAT ON APRIL 26, 1972 THE POLICY WAS THAT EMPLOYEES PRESENT
ON BEHALF OF A LABOR ORGANIZATION AT A HEARING HELD PURSUANT TO THE
REGULATIONS OF THE ASSISTANT SECRETARY SHALL NOT BE ON OFFICIAL TIME
WHEN SO ENGAGED (SEE CPR 700 (CH.9) 711 PARA. VII A.3.B. DATED APRIL 26,
1972). IN ANY EVENT THE ACTIVITY IN ITS BRIEF CONTENDS, AND I DO FIND,
THAT THIS WAS, IN FACT, THE POLICY FOLLOWED BY THE ACTIVITY AT THE TIME
OF THE REPRESENTATION HEARING IN QUESTION AND FURTHER THAT IT WAS
APPLIED TO MR. THOMAS.
/11/ IT SHOULD BE NOTED THAT AN APPEAL FROM THE DECISION IS BEING
CONSIDERED BY THE FEDERAL LABOR RELATIONS COUNCIL AND THE COUNCIL HAS
DIRECTED THAT THE ORDER AND DECISION BE STAYED PENDING FINAL DISPOSITION
OF THE APPEAL.
/12/ IBID AT PAGE 11.
/13/ IN THE SUBJECT CASE, MR. THOMAS WAS AT NO TIME PRIOR TO OR
DURING THE FEBRUARY 9 AND 10 HEARING ADVISED AS TO THIS POLICY CHANGE,
WHERE AS IN THE NAVY WEAPONS STATION CASE, SUPRA, THE NAVY DID ADVISE
THE PROSPECTIVE WITNESSES THAT THE NAVY WAS CHANGING POLICY AND WOULD NO
LONGER PAY WITNESSES.
/14/ I CONCLUDE THAT MR. THOMAS' PARTICIPATION IN THE HEARING, BOTH
ON AND OFF THE RECORD, WHEN HE WAS NOT ACTUALLY A SWORN WITNESS ON THE
WITNESS STAND DID NOT CONSTITUTE BEING A WITNESS AS ENVISIONED BY THE
ASSISTANT SECRETARY IN THE NAVAL WEAPONS STATION CASE. SUCH
PARTICIPATION WAS RATHER IN HIS CAPACITY AS A UNION REPRESENTATIVE AND
ADHERENT.
/15/ THE ACTIVITY URGES THAT BECAUSE THE ASSISTANT SECRETARY'S
DECISION IN THE U.S. NAVAL WEAPONS STATION CASE, SUPRA, ISSUED AFTER
FEBRUARY 9 AND 10 HEARING, TO APPLY IT TO THE ACTIVITY AND MR. THOMAS
WOULD BE A RETROACTIVE APPLICATION. I REJECT THIS CONTENTION BECAUSE I
AM MERELY DECIDING WHETHER CERTAIN CONDUCT WAS PROHIBITED BY SECTION
19(A)(1) OF THE ORDER, WHICH WAS PROMULGATED LONG BEFORE FEBRUARY 9 AND
10, 1972. IT IS FURTHER NOTED THAT THIS IS NOT A CHANGE OF ANY OFFICIAL
INTERPRETATION OF THE ORDER AND WAS PRECISELY THE SITUATION PRESENTED TO
THE ASSISTANT SECRETARY IN THE U.S. NAVAL WEAPONS STATION CASE, SUPRA.
/16/ THE ACTIVITY CONTENDS THAT HAD IT KNOWN MR. THOMAS WOULD BE A
WITNESS AND BE PRESENT FOR TWO DAYS THEY WOULD HAVE OBJECTED. THIS
ARGUMENT IS REJECTED BECAUSE THE ACTIVITY KNEW MR. THOMAS WOULD BE
PRESENT, ALTHOUGH NOT IN WHAT CAPACITY, AND ALSO KNEW THAT HE HAD NOT
REQUESTED ANNUAL LEAVE TO BE PRESENT. THE ACTIVITY DID NOT ADVISE HIM,
IN ADVANCE OF THE CHANGE OF LEAVE POLICY AND MADE NO ATTEMPT TO FIND OUT
WHO THE UNION WITNESSES WOULD BE. FURTHER, THE UNION TOOK ALL
REASONABLE PRECAUTION ON MR. THOMAS' BEHALF, BY NOTIFYING THE DEPARTMENT
OF LABOR THAT THEY INTENDED TO CALL MR. THOMAS AS A WITNESS AND MR.
THOMAS WAS THE ONLY EMPLOYEE CALLED AS A WITNESS BY THE UNION.
3 A/SLMR 255; P. 142; CASE NO. 72-2937(26); MARCH 14, 1973.
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE FLIGHT TEST CENTER,
EDWARDS AIR FORCE BASE, CALIFORNIA
A/SLMR NO. 255
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1406 (COMPLAINANT). THE COMPLAINANT ALLEGED THAT THE RESPONDENT
ACTIVITY VIOLATED SECTION 19(A)(1), (2), AND (6) OF THE ORDER BY
DISREGARDING AN EMPLOYEE'S EXPRESSED DESIRE TO BE REPRESENTED BY THE
COMPLAINANT DURING THE PROCESSING AND PRESENTATION OF A GRIEVANCE AND BY
MAKING DISPARAGING REMARKS TO THE GRIEVANT ABOUT THE COMPLAINANT'S
HANDLING OF THE GRIEVANCE.
UPON COMPLETION OF THE HEARING, THE ADMINISTRATIVE LAW JUDGE ISSUED
HIS REPORT AND RECOMMENDATIONS DISMISSING THE COMPLAINT IN ITS ENTIRETY.
ALTHOUGH THE ADMINISTRATIVE LAW JUDGE NOTED THAT IT MIGHT HAVE BEEN
BETTER PRACTICE FOR THE RESPONDENT TO HAVE ATTEMPTED TO CONTACT THE
COMPLAINANT CONCERNING ALTERNATIVE DATES FOR AN UPCOMING GRIEVANCE
PROCEEDING OR CONCERNING THE COMPLAINANT'S DESIGNATING ANOTHER
REPRESENTATIVE, HE FOUND THAT SUCH CONDUCT DID NOT VIOLATE SECTION
19(A)(6). NOR DID HE FIND A VIOLATION OF THE ORDER BASED ON LETTERS
SENT BY THE RESPONDENT TO THE GRIEVANT, COPIES OF WHICH WERE SENT TO THE
COMPLAINANT, SETTING FORTH ALTERNATIVE DATES FOR THE GRIEVANCE HEARING.
THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE RESPONDENT'S CONDUCT
DID NOT CONSTITUTE AN ATTEMPT TO UNDERMINE OR BY-PASS THE COMPLAINANT.
IN THIS REGARD, HE NOTED THAT AT NO TIME DID RESPONDENT ATTEMPT TO
DISCUSS THE MERITS OF THE GRIEVANCE WITH THE GRIEVANT ALONE AND THAT THE
COMPLAINANT REPRESENTED THE GRIEVANT AT THE SUBSEQUENT GRIEVANCE
PROCEEDING. MOREOVER, HE FOUND THE ALLEGED DISPARAGING REMARKS, IN
FACT, WERE NOT MADE BY THE RESPONDENT TO THE GRIEVANT.
UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE EXCEPTIONS AND
A SUPPORTING BRIEF FILED BY THE COMPLAINANT, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDING, CONCLUSIONS, AND
RECOMMENDATIONS. ALTHOUGH THE ASSISTANT SECRETARY NOTED IT WOULD HAVE
BEEN BETTER PRACTICE FOR THE RESPONDENT TO HAVE CONTACTED THE GRIEVANT'S
CHOSEN REPRESENTATIVE, AN OFFICER OF THE COMPLAINANT, TO DISCUSS
ALTERNATIVE DATES FOR THE UPCOMING GRIEVANCE PROCEEDING RATHER THAN
DISCUSSING SUCH MATTERS DIRECTLY WITH THE GRIEVANT AND SUGGESTING THAT
THE LATTER CHOOSE ANOTHER REPRESENTATIVE OF THE COMPLAINANT IN THE EVENT
HIS CHOSEN REPRESENTATIVE WAS NOT AVAILABLE TO APPEAR AT THE GRIEVANCE
PROCEEDING, HE FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
THAT THE EVIDENCE DID NOT ESTABLISH THAT THIS CONDUCT WAS AN ATTEMPT BY
THE RESPONDENT TO UNDERMINE OR BY-PASS THE COMPLAINANT. RATHER, HE
CONCLUDED THAT THE RESPONDENT WAS ATTEMPTING MERELY TO HAVE THE
GRIEVANCE HEARING ON THE DATE RECOMMENDED BY ITS APPEAL AND GRIEVANCE
EXAMINER, AND AT A TIME WHEN THE EXAMINER WOULD BE AVAILABLE. NOR DID
THE ASSISTANT SECRETARY CONSIDER THE RESPONDENT'S LETTERS OF JUNE 23 AND
JUNE 28, COPIES OF WHICH WERE SERVED ON THE GRIEVANT'S CHOSEN
REPRESENTATIVE, TO BE VIOLATIVE OF THE ORDER.
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE FLIGHT
TEST CENTER, EDWARDS AIR FORCE BASE,
CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1406
ON JANUARY 26, 1973, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT, DEPARTMENT OF THE AIR FORCE HEADQUARTERS,
AIR FORCE FLIGHT TEST CENTER, EDWARDS AIR FORCE BASE, CALIFORNIA, HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS AND A SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE.
WHILE, IN MY OPINION, IT WOULD HAVE BEEN BETTER PRACTICE FOR THE
RESPONDENT TO HAVE CONTACTED MR. WRIGHT'S CHOSEN REPRESENTATIVE, MR.
SMELTZER, AN OFFICER OF THE COMPLAINANT, TO DISCUSS ALTERNATIVE DATES
FOR THE UPCOMING GRIEVANCE PROCEEDING, RATHER THAN DISCUSSING SUCH
MATTERS DIRECTLY WITH WRIGHT AND SUGGESTING THAT THE LATTER CHOOSE
ANOTHER REPRESENTATIVE OF THE COMPLAINANT IN THE EVENT THAT SMELTZER WAS
NOT AVAILABLE TO APPEAR AT THE GRIEVANCE PROCEEDING, THE EVIDENCE DID
NOT ESTABLISH THAT THIS CONDUCT WAS AN ATTEMPT BY THE RESPONDENT TO
UNDERMINE OR BY-PASS THE COMPLAINANT. RATHER, IT APPEARS FROM THE
RECORD THAT THE RESPONDENT WAS SEEKING, MERELY, TO HAVE THE GRIEVANCE
HEARING ON THE DATE RECOMMENDED BY ITS APPEAL AND GRIEVANCE EXAMINER,
AND AT A TIME WHEN THE EXAMINER WOULD BE AVAILABLE. UNDER ALL THE
CIRCUMSTANCES, I FIND IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE
THAT THE RESPONDENT'S CONDUCT IN THIS REGARD WAS NOT VIOLATIVE OF
SECTION 19(A)(6) OF THE ORDER. NOR DO I CONSIDER THE RESPONDENT'S
LETTERS OF JUNE 23 AND JUNE 28, COPIES OF WHICH WERE SERVED ON MR.
SMELTZER, TO BE VIOLATIVE OF THE ORDER IN THE CIRCUMSTANCES OF THIS
CASE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-2937(26) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1973
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1406
CAPTAIN BRENDAN M. DIXON, DEPARTMENT OF THE AIR FORCE,
AIR FORCE FLIGHT TEST CENTER,
EDWARDS AIR FORCE BASE, CALIFORNIA 93523,
NEAL FINE, ESQ., AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, 1325 MASSACHUSETTS AVENUE,
WASHINGTON, D.C.
BEFORE: SAMUEL A. CHAITOVITZ, ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON AUGUST 10, 1972 BY
THE REGIONAL ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES ADMINISTRATION,
SAN FRANCISCO REGION, BASED ON AN AMENDED COMPLAINT FILED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1406 (HEREIN CALLED THE UNION)
AGAINST DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, AIR FORCE FLIGHT TEST
CENTER, EDWARDS AIR FORCE BASE, CALIFORNIA (HEREIN CALLED THE ACTIVITY).
THE AMENDED COMPLAINT ALLEGED THAT THE ACTIVITY VIOLATED SECTION
19(A)(1), (2), AND (6) OF THE ORDER BY DISREGARDING AN EMPLOYEE'S
EXPRESSED DESIRE TO BE REPRESENTED BY THE UNION DURING THE PROCESSING
AND PRESENTING OF A GRIEVANCE AND BY MAKING DISPARAGING REMARKS ABOUT
THE UNION'S HANDLING OF THE GRIEVANCE.
THE PARTIES STIPULATED THAT THE UNION SERVED A "PROPOSED COMPLAINT"
(RESP. EXH.2) ON THE ACTIVITY ON OCTOBER 6, 1971. THIS WAS IN FACT THE
UNFAIR LABOR PRACTICE CHARGE REQUIRED BY THE ORDER AND THE ASSISTANT
SECRETARY'S RULES AND REGULATIONS. THE PARTIES STIPULATED FURTHER THAT
THE UNION SERVED THE "COMPLAINT" ON THE ACTIVITY ON NOVEMBER 5, 1971.
THE "AMENDED COMPLAINT" WAS FILED AND SERVED ON OR ABOUT MAY 26, 1972.
THAT PORTION OF THE COMPLAINT FORM (LMSA 61(1/70)) ENTITLED "2. BASIS
OF THE COMPLAINT" WAS FILLED OUT VIRTUALLY IDENTICALLY IN THE "PROPOSED
COMPLAINT," "COMPLAINT" AND "AMENDED COMPLAINT" DESCRIBED ABOVE. THE
"AMENDED COMPLAINT" DIFFERED FROM THE PRIOR TWO DOCUMENTS ONLY INSOFAR
AS IT ADDED UNDER THAT PORTION OF THE COMPLAINT FORM NUMBERED "1G" AN
ALLEGATION THAT THE ACTIVITY VIOLATED SECTION 19(A)(2) OF THE ORDER, AS
WELL AS THE ALREADY ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF
THE ORDER. NO NEW FACTS OR CONDUCT WERE ALLEGED TO CONSTITUTE THIS
VIOLATION.
THE NOTICE OF HEARING ISSUED BY THE REGIONAL ADMINISTRATOR STATED
THAT THE SUBJECT HEARING WOULD CONSIDER ". . . ALLEGED VIOLATION OF
SECTION(S) 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491." WHEN THE OMISSION
OF THE ALLEGATION OF THE SECTION 19(A)(2) VIOLATION FROM THE NOTICE OF
HEARING WAS BROUGHT TO THE ATTENTION OF THE UNDERSIGNED, HE COMMUNICATED
WITH THE AREA ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES ADMINISTRATION,
LOS ANGELES AREA AND WAS INFORMED THAT THE OMISSION OF THE ALLEGED
SECTION 19(A)(2) VIOLATION WAS A CLERICAL ERROR AND THAT IT SHOULD HAVE
BEEN INCLUDED IN THE NOTICE OF HEARING. THE UNDERSIGNED, ON THE RECORD,
ADVISED THE PARTIES THAT THE NOTICE OF HEARING WOULD BE CONSIDERED AS
INCLUDING THE REFERENCE TO THE ALLEGED VIOLATION OF SECTION 19(A)(2) OF
THE ORDER. /1/
THE ACTIVITY THEN MOVED, AT THE HEARING, THAT THE ALLEGATION THAT
SECTION 19(A)(2) OF THE ORDER HAD BEEN VIOLATED BE DISMISSED AS UNTIMELY
UNDER THE ASSISTANT SECRETARY'S RULES AND REGULATIONS, /2/ BECAUSE THE
"AMENDED COMPLAINT" WHICH FIRST MENTIONED THIS ALLEGED VIOLATION, WAS
FILED AND SERVED MAY 26, 1972. THE ACTIVITY ALLEGES THAT WITH RESPECT
TO THE ALLEGED SECTION 19(A)(2) VIOLATION THAT SINCE THE ALLEGED
UNLAWFUL CONDUCT OCCURRED ON JUNE 17 AND 23, THE REQUIREMENTS OF SECTION
203.2 OF THE RULES AND REGULATIONS WERE NOT COMPLIED WITH AND THIS
ALLEGATION SHOULD THEREFORE BE DISMISSED. THE UNDERSIGNED RESERVED
RULING ON THE MOTION.
THERE IS NO DISPUTE THAT THE "PROPOSED COMPLAINT" (THE CHARGE) AND
THE "COMPLAINT" WERE TIMELY FILED. FURTHER, IT IS NOTED THAT THE
ALLEGATION THAT SECTION 19(A)(2) OF THE ORDER HAD BEEN VIOLATED DID NOT
INVOLVE ANY FACTS OR CONDUCT THAT WERE NOT ALREADY DESCRIBED AND SET
FORTH IN THE "PROPOSED COMPLAINT" AND IN THE "COMPLAINT."
ALTHOUGH NOT NECESSARILY BINDING PRECEDENT IN THESE PROCEEDINGS, THE
POLICY OF THE NATIONAL LABOR RELATIONS BOARD IN INTERPRETING AND
APPLYING SECTION 10(B) OF THE NATIONAL LABOR RELATIONS ACT COMMENDS
ITSELF AND IS APPLICABLE. THE BOARD SEEMS TO CONSIDER THE UNFAIR LABOR
PRACTICE CHARGE AS MERELY THE MECHANISM WHEREBY IT ENTERS THE
CONTROVERSY. SUBSEQUENT AMENDED CHARGES AND THE COMPLAINT, ARE
CONSIDERED TIMELY SO LONG AS THEY ARE, EVEN RATHER REMOTELY, ENCOMPASSED
BY ANY OF THE LANGUAGE OF THE ORIGINAL CHARGE, E.G., FREEMONT HOTEL,
INC. 162 NLRB 820 AND LUBANK CO. 175 NLRB 213.
THE PURPOSE OF SECTION 203.2 OF THE RULES AND REGULATIONS IS TO
REQUIRE THE PARTIES TO ATTEMPT TO DEAL WITH THEIR DISPUTES PROMPTLY AND
TO PREVENT STALE CHARGES FROM BEING RAISED. IN THESE CIRCUMSTANCES,
WHERE THE ACTIVITY WAS TIMELY ADVISED IN THE "PROPOSED COMPLAINT" AND
"COMPLAINT" OF ALL OF THE CONDUCT ALLEGED TO BE VIOLATIVE OF THE ORDER,
AND THE "AMENDED COMPLAINT" ONLY ADDED THE LEGAL CONCLUSION THAT AN
ADDITIONAL SECTION OF THE ORDER WAS VIOLATED, IT IS CONCLUDED THAT THE
ALLEGATION THAT SECTION 19(A)(2) WAS VIOLATED, IS NOT BARRED BY SECTION
203.2 OF THE ASSISTANT SECRETARY'S RULES AND REGULATIONS. TO READ
SECTION 203.2 OF THE RULES AND REGULATIONS AS TECHNICALLY AS REQUESTED
BY THE ACTIVITY WOULD FRUSTRATE THE VERY POLICIES OF THE ORDER WITHOUT
IN ANY WAY ACHIEVING THE PURPOSE OF THE RULE IN QUESTION. IN LIGHT OF
THE FOREGOING, THE ACTIVITY'S MOTION TO DISMISS AS UNTIMELY THE
ALLEGATION THAT SECTION 19(A)(2) OF THE ORDER HAD BEEN VIOLATED IS
DENIED. /3/
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON SEPTEMBER 20, 1972 AT
LOS ANGELES, CALIFORNIA. BOTH PARTIES WERE REPRESENTED AT THE HEARING
AND THEIR REPRESENTATIVES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON
THE ISSUES INVOLVED HEREIN. BOTH PARTIES FILED BRIEFS WITH THE
UNDERSIGNED.
FROM THE ENTIRE RECORD IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY ADDUCED AT
THE HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS:
THE UNION HAS BEEN EXCLUSIVELY RECOGNIZED AS THE COLLECTIVE
BARGAINING REPRESENTATIVE FOR ALL OF THE ACTIVITY'S WAGE GRADE EMPLOYEES
SINCE 1968. AT ALL TIMES MATERIAL HEREIN, MR. CLIFFORD WRIGHT WAS A
WAGE GRADE EMPLOYEE IN THE DESCRIBED UNIT. DURING JUNE 1971 WHEN THE
SUBJECT DISPUTE HEREIN AROSE THERE WAS NO COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE UNION AND THE ACTIVITY IN EXISTENCE.
DURING APRIL 1971 MR. WRIGHT RECEIVED A REPRIMAND FROM THE ACTIVITY.
DURING VERY EARLY JUNE 1971, MR. WRIGHT MET WITH MR. CARSON SMELTZER OF
THE UNION /4/ AND AS A RESULT OF THEIR MEETING TWO DOCUMENTS WERE
PREPARED, DATED AND SIGNED BY MR. WRIGHT. THE FIRST WAS A POWER OF
ATTORNEY DATED JUNE 1, 1971 GRANTING THE UNION MR. WRIGHT'S POWER OF
ATTORNEY TO ACT FOR AND ON HIS BEHALF "IN ALL MATTERS COINCIDENT TO . .
. (HIS) . . .GRIEVANCE AND/OR APPEAL." /5/ THE SECOND WAS A LETTER DATED
JUNE 3, 1971 AND SIGNED BY MR. WRIGHT WHEREBY HE ADVISED THE ACTIVITY'S
COMMANDING OFFICER THAT HE WAS APPEALING THE REPRIMAND, REQUESTING A
HEARING AND DESIGNATING MR. SMELTZER OF THE UNION AS HIS
REPRESENTATIVE. THE LETTER REQUESTED THE COMMANDING OFFICER TO ROUTE
ALL CORRESPONDENCE THROUGH MR. WRIGHT'S REPRESENTATIVE. ON JUNE 4 MR.
WRIGHT DELIVERED THE JUNE 3RD LETTER AND THE POWER OF ATTORNEY TO MR.
DENNIS HEINS' OFFICE. MR. HEINS IS A PERSONNEL STAFFING AND EMPLOYMENT
RELATIONS SPECIALIST FOR THE ACTIVITY. /6/
A MEMORANDUM TRANSMITTED ON JUNE 8 FROM THE ACTIVITY'S CHIEF OF
CIVILIAN PERSONNEL TO THE SACRAMENTO APPELLATE REVIEW OFFICE, COPIES TO
MR. WRIGHT AND MR. SMELTZER, ADVISED THE APPELLATE REVIEW OFFICE OF THE
PENDENCY OF THE GRIEVANCE, THAT MR. WRIGHT HAD DESIGNATED MR. SMELTZER
OF THE UNION AS HIS REPRESENTATIVE AND THAT MR. HEINS WAS THE "GRIEVANCE
LIAISON REPRESENTATIVE FOR THIS GRIEVANCE." BY LETTER DATED JUNE 14,
1971, MR. SMELTZER, PRESIDENT OF THE UNION, ADVISED THE COMMANDER OF THE
ACTIVITY OF THE NAMES OF PROPOSED WITNESSES TO BE CALLED IN CONJUNCTION
WITH MR. WRIGHT'S GRIEVANCE.
ON JUNE 17 MR. HEINS RECEIVED A TELEPHONE CALL FROM MR. DOUGLAS
GOODELL, APPEAL AND GRIEVANCE EXAMINER OF THE SACRAMENTO APPELLATE
REVIEW OFFICE, REQUESTING THAT MR. HEINS ASCERTAIN WHETHER A DATE OF
JUNE 29 FOR CONDUCTING A FACT-FINDING PROCEEDING WOULD BE ACCEPTABLE
WITH MR. WRIGHT AND HIS REPRESENTATIVE. LATER THAT DAY MR. SMELTZER WAS
IN THE BASE CIVILIAN PERSONNEL OFFICE MAKING ARRANGEMENTS TO CONDUCT A
MEMBERSHIP DRIVE AT AN ARMY INSTALLATION LOCATED ON THE SUBJECT AIR
FORCE FACILITY. MR. HEINS SAW MR. SMELTZER AND ASKED HIM TO STEP INTO
HIS OFFICE. MR. HEINS AND MR. SMELTZER DISCUSSED PROPOSED DATES FOR MR.
WRIGHT'S GRIEVANCE HEARING. /7/ MR. HEINS PROPOSED JUNE 29TH AS THE
DESIRABLE DATE. MR. SMELTZER INDICATED, AT LEAST, THAT BECAUSE OF HIS
ORGANIZING CAMPAIGN A LATER DATE WOULD BE PREFERABLE. JULY 7 WAS AGREED
UPON, AT LEAST AS A PROPOSED DATE FOR THE HEARING. MR. SMELTZER THEN
LEFT MR. HEINS' OFFICE.
MR. HEINS TELEPHONED MR. GOODELL AND ADVISED HIM OF THE JULY 7 DATE.
MR. GOODELL INDICATED THAT THIS DATE WAS UNACCEPTABLE TO HIM. HE
INDICATED THAT HE WANTED TO GET THE GRIEVANCE HEARD AS QUICKLY AS
POSSIBLE AND HE INSTRUCTED MR. HEINS TO CONTACT MR. SMELTZER OR MR.
WRIGHT TO ASCERTAIN IF ANOTHER REPRESENTATIVE WOULD BE AVAILABLE ON JUNE
29TH. IF THIS WAS NOT POSSIBLE, THEY SHOULD CHOOSE EITHER OF TWO
SPECIFIC DATES IN JULY AS A HEARING DATE.
MR. HEINS ADMITTEDLY MADE NO ATTEMPT TO CONTACT MR. SMELTZER TO
DISCUSS POSSIBLE HEARING DATES. INSTEAD, HE SENT FOR MR. WRIGHT, WHO
THEN CAME TO MR. HEINS' OFFICE AT APPROXIMATELY 2:15 P.M. MR. WRIGHT
WAS APPARENTLY QUITE NERVOUS AND WAS NOT SURE WHY HE WAS SENT FOR. /8/
UPON ARRIVING AT MR. HEINS' OFFICE THEY DISCUSSED POSSIBLE DATES. MR.
HEINS APPARENTLY ADVISED MR. WRIGHT THAT THE JUNE 29TH DATE WAS THE
PREFERABLE DATE AND THAT IF MR. SMELTZER COULD NOT MAKE IT THAT DAY
PERHAPS ANOTHER REPRESENTATIVE COULD BE CHOSEN. /9/ THE UNION CONTENDS
IN THE COMPLAINT THAT MR. HEINS TOLD MR. WRIGHT ". . . THAT IF IT WAS
NOT FOR THE LOCAL'S INTERFERENCE THAT HIS GRIEVANCE WOULD HAVE BEEN
TAKEN CARE OF ALREADY . . ." MR. WRIGHT'S TESTIMONY ON THIS PART OF THE
CONVERSATION WAS CONFUSED. /10/
MR. HEINS DENIES MAKING ANY SUCH STATEMENT ALTHOUGH HE APPARENTLY DID
INDICATE THAT IT WOULD BE DESIRABLE TO HOLD THE HEARING AS SOON AS
POSSIBLE AND THAT ANY ADDITIONAL DELAY WOULD NOT BE HELPFUL. BECAUSE OF
MR. WRIGHT'S CONFUSION I CREDIT MR. HEINS' VERSION AND CONCLUDE NO
STATEMENT WAS MADE BY MR. HEINS TO THE EFFECT THAT THE UNION'S METHOD OF
HANDLING THE GRIEVANCE WAS HARMFUL TO MR. WRIGHT. MR. WRIGHT INDICATED
HE WANTED ONLY MR. SMELTZER TO BE THE UNION REPRESENTATIVE AND MR. HEINS
THEN SUGGESTED SOME ALTERNATE HEARING DATES. MR. WRIGHT STATED HE DID
NOT WANT TO MAKE ANY DECISION OR DISCUSS THE MATTER FURTHER, BUT RATHER
WANTED TO CONSULT MR. SMELTZER. MR. HEINS THEN REQUESTED MR. WRIGHT GET
TOGETHER WITH MR. SMELTZER AND SEE IF A DATE COULD BE CHOSEN. THE
DISCUSSION THEN ENDED.
BY LETTER DATED JUNE 23 RICHARD SIMMONS, THE ACTIVITY'S CHIEF OF
EMPLOYEE MANAGEMENT SELECTION REQUESTED ON BEHALF OF MR. GOODELL, THAT
EITHER THE WEEK OF JULY 19 OR JULY 26 BE DESIGNATED FOR THE FACT FINDING
HEARING AND THAT A BRIEF STATEMENT BE SUBMITTED AS TO WHAT WILL BE THE
SUBJECT OF THE TESTIMONY OF EACH WITNESS LISTED IN MR. SMELTZER'S JUNE
14 LETTER. THIS LETTER WAS ADDRESSED TO MR. WRIGHT AND CARBON COPIES
WERE SENT TO MR. SMELTZER AND MR. GOODELL. MR. GOODELL, BY LETTER
DATED JUNE 28, ADDRESSED TO MR. WRIGHT, ADVISED HIM THAT SINCE MR.
SMELTZER WAS NOT AVAILABLE FOR JUNE 29 AND SINCE MR. WRIGHT DID NOT WISH
TO DESIGNATE ANOTHER REPRESENTATIVE, THAT HE SHOULD ADVISE MR. GOODELL
OF THE EARLIEST DATE THEY WILL BE READY TO PROCEED TOGETHER WITH CERTAIN
ADDITIONAL INFORMATION. A COPY OF THIS LETTER WAS SENT TO MR. HEINS AND
MR. SMELTZER.
ULTIMATELY THE GRIEVANCE FACT FINDING HEARING WAS HELD AND MR.
WRIGHT WAS REPRESENTED BY MR. SMELTZER.
IT IS CONTENDED BY THE COMPLAINANT THAT THE MEETING AND DISCUSSION OF
JUNE 17 BETWEEN MR. HEINS AND MR. WRIGHT CONCERNING MR. WRIGHT'S
GRIEVANCE WAS AN ATTEMPT ON THE PART OF THE ACTIVITY TO BYPASS THE
UNION, MR. WRIGHT'S CHOSEN REPRESENTATIVE, AND THEREFORE VIOLATED
SECTION 19(A)(6) OF THE ORDER. THE COMPLAINANT CONTENDS FURTHER THAT
THE JUNE 23, 1971 LETTER ADDRESSED TO MR. WRIGHT ALSO CONSTITUTED AN
ATTEMPT TO BYPASS THE UNION IN THE PROCESSING OF THE GRIEVANCE AND
THEREFORE CONSTITUTES A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HAS
HELD THAT AN ATTEMPT BY AN ACTIVITY TO BYPASS THE EXCLUSIVE
REPRESENTATIVE DESIGNATED BY AN EMPLOYEE TO PROCESS HER GRIEVANCE,
CONSTITUTED A FAILURE TO CONSULT, CONFER OR NEGOTIATE IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER. UNITED STATES ARMY SCHOOL TRAINING
CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42.
THE SUBJECT CASE IS FACTUALLY DISTINGUISHABLE FROM THE ARMY SCHOOL
TRAINING CENTER CASE, SUPRA. IN THAT CASE A LETTER ADVISING THE
GRIEVANT THAT A REPRIMAND WAS BEING WITHDRAWN ALSO INFORMED HER THAT THE
SAME RESULT COULD HAVE BEEN OBTAINED HAD SHE DEALT DIRECTLY WITH
MANAGEMENT. THE ASSISTANT SECRETARY CONCLUDED THAT THE LETTER FROM THE
ARMY SCHOOL TRAINING CENTER CLEARLY URGED THE BYPASSING OF THE UNION.
IN THE SUBJECT CASE MR. HEINS DID NOT URGE MR. WRIGHT TO WITHDRAW HIS
DESIGNATION OF THE UNION AS HIS REPRESENTATIVE NOR DID HE INDICATE MR.
WRIGHT WOULD BE AS WELL OR BETTER OFF WITHOUT THE UNION. THE MOST HE
DID AT THE REQUEST OF MR. GOODELL WAS TO DISCOURAGE ANY DELAY AND TO
URGE MR. WRIGHT TO HAVE THE HEARING HELD ON OR ABOUT JUNE 29TH
SUGGESTING HE CONSIDER HAVING THE UNION DESIGNATE SOMEONE OTHER THAN MR.
SMELTZER AS THEIR REPRESENTATIVE. HE DID NOT ATTEMPT TO UNDERMINE THE
UNION AND ONLY MADE THE SUGGESTION BECAUSE HE BELIEVED THAT MR. SMELTZER
WOULD BE UNAVAILABLE ON JUNE 29TH. WHEN MR. WRIGHT INDICATED HE WISHED
TO HAVE MR. SMELTZER AT THE HEARING, MR. HEINS ADVISED HIM OF
ALTERNATIVE DATES FOR THE HEARING. WHEN MR. WRIGHT INDICATED HE DID NOT
WANT TO DISCUSS POSSIBLE DATES BUT RATHER HE WISHED TO LEAVE THAT MATTER
TO MR. SMELTZER, MR. HEINS ACCEDED TO HIS REQUEST. AT NO TIME DID MR.
HEINS ATTEMPT TO DISCUSS THE MERITS OF THE GRIEVANCE WITH MR. WRIGHT,
NOR, AFTER MR. WRIGHT INDICATED HE WISHED TO HAVE THE MATTERS RAISED
CONSIDERED BY MR. SMELTZER OF THE UNION, DID MR. HEINS REFUSE TO ALLOW
HIM OR DISCOURAGE HIM FROM CONSULTING WITH THE UNION. IN FACT MR.
WRIGHT DID CONSULT WITH MR. SMELTZER, THE HEARING WAS HELD, AND HE WAS
REPRESENTED BY MR. SMELTZER. IN THESE CIRCUMSTANCES, ALTHOUGH IT MIGHT
HAVE BEEN BETTER PRACTICE FOR MR. HEINS TO HAVE ATTEMPTED TO CONTACT MR.
SMELTZER ABOUT ALTERNATE DATES OR THE UNION DESIGNATING SOMEONE ELSE, IT
WAS NOT CONDUCT WHICH CONSTITUTED BYPASSING OR UNDERMINING THE UNION SO
AS TO CONSTITUTE A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
SIMILARLY THE JUNE 23 LETTER AND THE JUNE 28 LETTER ALTHOUGH
ADDRESSED TO MR. WRIGHT, WERE ALSO SENT TO MR. SMELTZER AND COULD HARDLY
BE SAID TO CONSTITUTE BYPASSING THE UNION. AGAIN, ALTHOUGH IT MIGHT
HAVE BEEN POOR FORM IT DID NOT CONSTITUTE A VIOLATION OF SECTION
19(A)(6) OF THE ACT.
THE COMPLAINANT CONTENDS THAT MR. HEINS, DURING THE JUNE 17 MEETING
TOLD MR. WRIGHT THAT THE UNION WAS "DOING HIM MORE HARM THAN GOOD FOR
HIM BY DELAYING HIS CASE FOR SO LONG," AND THAT THIS STATEMENT
CONSTITUTED CONDUCT THAT VIOLATED SECTION 19(A)(1) AND 19(A)(2) OF THE
ORDER.
WITH RESPECT TO THE ALLEGATION THAT SECTION 19(A)(2) HAD BEEN
VIOLATED, THERE WAS NO EVIDENCE OFFERED OR PRESENTED WHICH ESTABLISHED
THAT MR. WRIGHT HAD IN ANY WAY BEEN DISCRIMINATED AGAINST. SECTION
19(A)(2) PROVIDES THAT "AGENCY MANAGEMENT SHALL NOT . . . (2) ENCOURAGE
OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT .
. ." IN THE ABSENCE OF ANY SHOWING OF SUCH DISCRIMINATION, A VIOLATION
OF SECTION 19(A)(2) CANNOT BE MAINTAINED.
WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(A)(1) OF THE
ORDER THE FINDINGS OF FACT INDICATE THAT THE STATEMENT AS ALLEGED BY THE
UNION WAS NOT MADE. ALTHOUGH DELAY WAS DISCOURAGED BY MR. HEINS AND MR.
WRIGHT WAS ADVISED TO SEE IF THE UNION COULD DESIGNATE SOMEONE WHO WAS
AVAILABLE ON JUNE 29 OR AT HIS OWN REQUEST, TO DISCUSS WITH THE UNION
POSSIBLE ALTERNATIVE HEARING DATES, SUCH STATEMENTS CAN HARDLY BE SAID
TO INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF
RIGHTS GUARANTEED BY THE ORDER.
IN THE CIRCUMSTANCES HEREPRESENT THEREFORE, I CONCLUDE THAT NONE OF
THE STATEMENTS MADE BY MR. HEINS CONSTITUTED CONDUCT THAT VIOLATED
SECTION 19(A)(1) OF THE ORDER.
IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE, IT IS RECOMMENDED
THAT THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS
DISMISS THE COMPLAINT.
DATED: WASHINGTON, D.C.
JANUARY 26, 1973
/1/ THE ACTIVITY STATED THAT SINCE THIS ADDITIONAL ALLEGATION
INVOLVED NO NEW FACTUAL ALLEGATIONS, IT DID NOT ANTICIPATE NEEDING ANY
ADDITIONAL TIME TO PREPARE OR PRESENT ITS CASE. THE ACTIVITY STATED
THAT IN THE EVENT IT NEEDED ANY ADDITIONAL TIME IT WOULD SO STATE BEFORE
THE CLOSE OF THE HEARING. NO SUCH REQUEST WAS SUBSEQUENTLY MADE.
/2/ SECTION 203.2 OF THE RULES AND REGULATIONS, IN EFFECT DURING THE
TIMES MATERIAL HEREIN, REQUIRED THAT "ANY CHARGE OF AN ALLEGED UNFAIR
LABOR PRACTICE . . . SHALL BE FILED DIRECTLY WITH THE PARTY . . .
AGAINST WHOM THE CHARGE IS DIRECTED WITHIN SIX (6) MONTHS OF THE
OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE." SECTION 203.2 REQUIRED
FURTHER ". . . THAT A COMPLAINT TO THE ASSISTANT SECRETARY SHALL NOT BE
CONSIDERED TIMELY UNLESS FILED WITHIN NINE (9) MONTHS OF THE OCCURRENCE
OF THE ALLEGED UNFAIR LABOR PRACTICE . . ."
/3/ ALTHOUGH THERE IS NO EVIDENCE THAT THIS OBJECTION WAS MADE DURING
THE PREHEARING STAGES OF THIS PROCEEDING, IT IS NOT DISPOSED OF ON THE
GROUNDS SET FORTH IN DEPARTMENT OF THE NAVY AND THE U.S. NAVAL WEAPONS
STATION, A/SLMR 139 AND V.A. HOSPITAL, A/SLMR NO. 87, SINCE THE NOTICE
OF HEARING HAD OMITTED ANY MENTION THAT THE HEARING WOULD CONSIDER THE
ALLEGED SECTION 19(A)(2) VIOLATION.
/4/ AT THE TIME OF THE MEETING MR. SMELTZER WAS THE UNION'S RECORDING
SECRETARY. LATER IN THE MONTH HE BECAME UNION PRESIDENT.
/5/ THE PARTIES STIPULATED THAT THE GRIEVANCE WAS TO BE PROCESSED
PURSUANT TO AIR FORCE REGULATION 40-771.
/6/ THE RECORD ESTABLISHES THAT DURING THE COURSE OF HIS NORMAL
DUTIES MR. HEINS COMMUNICATES WITH EMPLOYEES CONCERNING PERSONNEL
MATTERS, ON BEHALF OF THE ACTIVITY AND STATEMENTS MADE BY HIM ARE
ATTRIBUTABLE TO THE ACTIVITY. HE IS, THEREFORE, AN AGENT OF THE
ACTIVITY AND IT IS RESPONSIBLE FOR HIS STATEMENTS.
/7/ ALTHOUGH THERE IS SOME DIFFERENCE IN THE TESTIMONY OF MR. HEINS
AND MR. SMELTZER AS TO PRECISELY WHAT WAS SAID, THESE VARIATIONS SEEM
ATTRIBUTABLE TO DIFFERING RECOLLECTIONS. IN ANY EVENT THEY ARE FAIRLY
MINOR AND NEED NOT BE RESOLVED BECAUSE THE TWO VERSIONS AGREE ENOUGH TO
PROVIDE A SUFFICIENTLY ACCURATE DESCRIPTION OF THE MEETING.
/8/ AGAIN THE TWO VERSIONS OF THIS MEETING VARY SOMEWHAT. THE
VARIATIONS APPEAR UNINTENTIONAL AND ARE ATTRIBUTABLE TO DIFFERENT
RECOLLECTIONS OF THE MEETING. NO RESOLUTION OF THE DIFFERENCES NEED BE
MADE BECAUSE THE TWO VERSIONS ARE SIMILAR ENOUGH TO PROVIDE A
SUFFICIENTLY ACCURATE PICTURE OF THE DISCUSSION, EXCEPT AS TO ONE
SPECIFIC PART OF THE CONVERSATION, WHICH WILL BE DISCUSSED HEREINAFTER.
/9/ ALTHOUGH IT WAS NOT PRECISELY STATED IT APPEARS CLEAR THAT MR.
HEINS WAS REFERRING TO A DIFFERENT PERSON, I.E., OTHER THAN SMELTZER,
AND NOT A DIFFERENT UNION.
/10/ MR.WRIGHT FIRST TESTIFIED: "AND THEN HE INFORMED ME THAT I
WOULD BE DOING MORE HARM-- THAT IT WOULD BE DOING MORE HARM THAN GOOD
FOR ME BY DELAYING THIS CASE SO LONG." THEN, AFTER BEING LED BY HIS
ATTORNEY'S QUESTIONS MR. WRIGHT'S VERSION CHANGED. THAT PART OF THE
QUESTIONING WAS AS FOLLOWS:
"Q. OKAY. NOW, IN REGARD TO THIS LAST STATEMENT THAT THEY WERE
DOING YOU MORE HARM THAN GOOD; WHAT DO YOU MEAN BY THEY WERE DOING YOU
MORE HARM THAN GOOD?" "DID HE SAY WHO 'THEY' WAS?" "A. THE UNION. AND
I INFORMED HIM I WOULD SEE MY UNION PEOPLE THERE-- MR. SMELTZER AND
THEM-- BECAUSE HE WAS ALREADY SUPPOSED TO HAVE DATES SET UP, AS FAR AS I
KNEW." HOWEVER, AT A LATTER POINT MR. WRIGHT REPEATED THE PRIOR VERSION:
"YES, I TOLD HIM WHAT HE SAID-- THAT HE MADE A STATEMENT THAT IT WAS
DOING MORE HARM THAN GOOD FOR ME BY DELAYING THIS CASE."
3 A/SLMR 254; P. 139; CASE NO. 20-3569(RO); MARCH 13, 1973.
PENNSYLVANIA NATIONAL GUARD
A/SLMR NO. 254
THIS CASE INVOLVED A REPRESENTATION PETITION BY THE ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., PENNSYLVANIA STATE COUNCIL (ACT) FOR A UNIT
OF ALL PENNSYLVANIA AIR NATIONAL GUARD TECHNICIANS. THE ACTIVITY TOOK
THE POSITION THAT THE ONLY APPROPRIATE UNIT WAS AN OVERALL UNIT OF ALL
PENNSYLVANIA ARMY AND AIR NATIONAL GUARD TECHNICIANS.
THE ASSISTANT SECRETARY FOUND THE PETITIONED FOR UNIT OF PENNSYLVANIA
AIR NATIONAL GUARD TECHNICIANS TO BE APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS REGARD, THE FOLLOWING CIRCUMSTANCES WERE
NOTED PARTICULARLY: TRANSFER OF TECHNICIANS BETWEEN THE ARMY AND AIR
NATIONAL GUARD IN PENNSYLVANIA REQUIRES RESIGNATION OF MEMBERSHIP FROM
ONE AND APPLICATION IN THE OTHER AND THERE HAVE BEEN A MINIMAL NUMBER OF
SUCH TRANSFERS; THERE ARE SEPARATE COMPETITIVE AREAS FOR PURPOSES OF
PROMOTION AND REDUCTION-IN-FORCE AMONG PENNSYLVANIA ARMY AND AIR
NATIONAL GUARD TECHNICIANS; AND ARMY AND AIR NATIONAL GUARD TECHNICIANS
HAVE SEPARATE IMMEDIATE SUPERVISION AND DIFFERENT JOB SKILLS.
PENNSYLVANIA NATIONAL GUARD /1/
AND
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
PENNSYLVANIA STATE COUNCIL
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER FRANKLIN D. GREEN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., PENNSYLVANIA STATE
COUNCIL, HEREIN CALLED ACT, SEEKS AN ELECTION IN THE FOLLOWING UNIT:
ALL WAGE BOARD AND GENERAL SCHEDULE AIR NATIONAL GUARD TECHNICIANS
EMPLOYED IN THE COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ALL EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER. /2/
THE ACTIVITY CONTENDS THAT THE ONLY APPROPRIATE UNIT IS A STATEWIDE
UNIT OF ALL ARMY AND AIR NATIONAL GUARD TECHNICIANS INASMUCH AS THESE
EMPLOYEES HAVE A COMMUNITY OF INTEREST AND SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE ACT PREVIOUSLY HAD BEEN CERTIFIED UNDER EXECUTIVE ORDER 11491 FOR
A UNIT OF ALL WAGE BOARD AND GENERAL SCHEDULE AIR NATIONAL GUARD
TECHNICIANS AT THE WILLOW GROVE NAVAL AIR STATION AND AT THE
PHILADELPHIA INTERNATIONAL AIRPORT, AND FOR A UNIT OF ALL ARMY NATIONAL
GUARD TECHNICIANS IN THE COMMONWEALTH OF PENNSYLVANIA. FURTHER, UNDER
EXECUTIVE ORDER 10988 THE ACT HAD BEEN GRANTED EXCLUSIVE RECOGNITION BY
THE ACTIVITY FOR AIR NATIONAL GUARD TECHNICIANS AT THE GREATER
PITTSBURGH AIRPORT AND THE HARRISBURG INTERNATIONAL AIRPORT. IN THIS
REGARD, THE EVIDENCE REVEALS THAT THERE HAVE BEEN NO NEGOTIATED
AGREEMENTS COVERING ANY OF THE ABOVE AIR NATIONAL GUARD UNITS. /3/
ALL NATIONAL GUARD UNITS IN PENNSYLVANIA ARE UNDER THE UNIFIED
COMMAND OF AN ADJUTANT GENERAL. HE HAS ULTIMATE CONTROL OVER AND
RESPONSIBILITY FOR THE TECHNICIANS' PROGRAM AND REPORTS ON THE PROGRAM
TO THE SECRETARIES OF THE ARMY AND THE AIR FORCE THROUGH THE CHIEF OF
THE NATIONAL GUARD BUREAU. OVERALL POLICY AND GUIDANCE RELATING TO THE
CIVILIAN PERSONNEL ADMINISTRATION AND FUNCTIONS OF THE TECHNICIANS ARE
SET FORTH IN JOINT ARMY AND AIR NATIONAL GUARD REGULATIONS. THE
ADJUTANT GENERAL OF THE PENNSYLVANIA NATIONAL GUARD ADMINISTERS THE
TECHNICIANS' PERSONNEL PROGRAM ON A STATE-WIDE BASIS WITHIN THE ABOVE
NOTED REGULATIONS. THUS, HE HAS FINAL AUTHORITY IN THE AREAS OF
ASSIGNMENT, PROMOTION, DISCIPLINE, OR SEPARATION OF TECHNICIANS AS WELL
AS THE RESPONSIBILITY FOR ESTABLISHING THE BASIC WORKWEEK, PRESCRIBING
HOURS OF DUTY AND THE FINAL RESOLUTION OF ANY UNRESOLVED GRIEVANCES.
THE TECHNICIANS' PERSONNEL OFFICE OPERATES ON A CENTRALIZED BASIS,
PERFORMING THE ADMINISTRATIVE AND PERSONNEL FUNCTIONS OF THE ADJUTANT
GENERAL.
THERE ARE APPROXIMATELY 1860 TECHNICIANS EMPLOYED BY THE ACTIVITY,
ABOUT 760 OF WHOM ARE IN AIR NATIONAL GUARD. WHILE THE ARMY NATIONAL
GUARD TECHNICIANS ARE LOCATED AT 150 TO 160 LOCATIONS THROUGHOUT THE
STATE, THE AIR NATIONAL GUARD TECHNICIANS ARE LOCATED AT SIX LOCATIONS
/4/ WITH THE MAJORITY LOCATED AT WILLOW GROVE NAVAL AIR STATION,
PHILADELPHIA INTERNATIONAL AIRPORT, AND HARRISBURG INTERNATIONAL
AIRPORT.
THE EVIDENCE ESTABLISHES THAT THE COMMAND RELATIONSHIP FOR THE ARMY
AND AIR NATIONAL GUARD TECHNICIANS IN PENNSYLVANIA IS SEPARATE AND
DISTINCT EVEN WHERE THEY ARE LOCATED IN THE SAME GEOGRAPHICAL AREA. THE
RECORD ALSO REVEALS THAT ARMY AND AIR NATIONAL GUARD TECHNICIANS IN
PENNSYLVANIA DO NOT WORK TOGETHER; HAVE NO COMMON SUPERVISION; AND
THEIR LEAVE REQUESTS ARE APPROVED BY THEIR IMMEDIATE SUPERVISORS.
ALTHOUGH THE ADJUTANT GENERAL CAN HEAR APPEALS WITH RESPECT TO
GRIEVANCES OF BOTH ARMY AND AIR NATIONAL GUARD TECHNICIANS AND THE SAME
GRIEVANCE POLICIES APPLY TO ALL TECHNICIANS, FOR THE MOST PART, SUCH
GRIEVANCES ARE HANDLED INDEPENDENTLY AT THE LOCAL ARMY OR AIR NATIONAL
GUARD LEVELS.
THE EVIDENCE ESTABLISHES FURTHER THAT UNIFORMS FOR THE ARMY AND AIR
NATIONAL GUARD TECHNICIANS ARE DIFFERENT AND THAT THEY ARE PAID FROM
DIFFERENT FUNDS. MOREOVER, THE JOB DESCRIPTIONS FOR THESE TECHNICIANS
ARE DIFFERENT, THEIR JOBS REQUIRE SPECIALIZED SKILLS, AND EACH SERVICE
OPERATES ITS OWN SERVICE SCHOOLS. IN ADDITION, FOR PURPOSES OF
PROMOTION AND REDUCTION-IN-FORCE, THE AIR AND ARMY NATIONAL GUARD
TECHNICIANS IN PENNSYLVANIA HAVE SEPARATE COMPETITIVE AREAS. THE RECORD
ALSO REVEALS THAT AS A CONDITION OF EMPLOYMENT TECHNICIANS MUST BECOME
MEMBERS OF THE ARMY OR AIR NATIONAL GUARD. AND THEREAFTER, IN ORDER TO
EFFECT A TRANSFER BETWEEN THE ARMY AND AIR NATIONAL GUARD, A TECHNICIAN
MUST RESIGN FROM THE NATIONAL GUARD SERVICE TO WHICH HE IS ASSIGNED AND
APPLY FOR MEMBERSHIP IN THE OTHER. IN THIS CONNECTION, THE INCIDENCE OF
SUCH TRANSFERS BY PENNSYLVANIA NATIONAL GUARD TECHNICIANS HAS BEEN
MINIMAL.
BASED ON THE FOREGOING, I FIND THE PETITIONED FOR UNIT OF
PENNSYLVANIA AIR NATIONAL GUARD TECHNICIANS TO BE APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS REGARD, THE FOLLOWING
CIRCUMSTANCES WERE NOTED PARTICULARLY: TRANSFER OF TECHNICIANS BETWEEN
THE ARMY AND AIR NATIONAL GUARD IN PENNSYLVANIA REQUIRES RESIGNATION
FROM MEMBERSHIP ON ONE AND APPLICATION IN THE OTHER AND THERE HAVE BEEN
A MINIMAL NUMBER OF SUCH TRANSFERS; THERE ARE SEPARATE COMPETITIVE
AREAS FOR PURPOSES OF PROMOTION AND REDUCTION-IN-FORCE AMONG
PENNSYLVANIA ARMY AND AIR NATIONAL GUARD TECHNICIANS; AND ARMY AND AIR
NATIONAL GUARD TECHNICIANS IN PENNSYLVANIA HAVE SEPARATE IMMEDIATE
SUPERVISION AND DIFFERENT JOB SKILLS. UNDER THESE CIRCUMSTANCES, I FIND
THAT THE EMPLOYEES IN THE CLAIMED UNIT SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /5/
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491, AS AMENDED:
ALL WAGE BOARD AND GENERAL SCHEDULE AIR NATIONAL GUARD TECHNICIANS
EMPLOYED IN THE COMMONWEALTH OF PENNSYLVANIA, /6/ EXCLUDING ALL
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER. /7/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., PENNSYLVANIA STATE COUNCIL.
DATED, WASHINGTON, D.C.
MARCH 13, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THE ACT DOES NOT CONTEND THAT THE PENNSYLVANIA AIR NATIONAL GUARD
TECHNICIANS PRESENTLY COVERED BY EXCLUSIVE RECOGNITION SHOULD BE
EXCLUDED FROM THE PETITIONED FOR UNIT. I HAVE HELD IN PRIOR DECISIONS
THAT WHERE A PARTY PETITIONS FOR EXCLUSIVE RECOGNITION AND PROCEEDS TO
AN ELECTION IN AN OVERALL UNIT ENCOMPASSING UNITS IN WHICH IT ALREADY
HOLDS EXCLUSIVE RECOGNITION IT WILL, IN EFFECT, HAVE WAIVED ITS
EXCLUSIVE RECOGNITION STATUS WITH RESPECT TO THOSE UNITS AND MAY
CONTINUE TO REPRESENT THE EMPLOYEES IN SUCH UNITS ON AN EXCLUSIVE BASIS
ONLY IN THE EVENT THAT IT IS CERTIFIED FOR THE OVERALL UNIT. SEE
DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH,
NEW JERSEY, A/SLMR NO. 83, AT FOOTNOTE 2, AND VETERANS ADMINISTRATION,
A/SLMR NO. 240.
/4/ THE SIX LOCATIONS ARE AS FOLLOWS: WILLOW GROVE NAVAL AIR
STATION; PHILADELPHIA INTERNATIONAL AIRPORT; HARRISBURG INTERNATIONAL
AIRPORT; STATE COLLEGE; GREATER PITTSBURGH AIRPORT; AND INDIANTOWN
GAP MILITARY RESERVATION.
/5/ CF. PENNSYLVANIA ARMY NATIONAL GUARD, A/SLMR NO. 9; MINNESOTA
ARMY NATIONAL GUARD, A/SLMR NO. 14; DEPARTMENT OF DEFENSE, NATIONAL
GUARD BUREAU, FLORIDA ARMY NATIONAL GUARD, A/SLMR NO. 37; AND
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, ADJUTANT GENERAL, STATE OF
GEORGIA, A/SLMR NO. 74.
/6/ THE ACTIVITY CONTENDED THAT A CERTIFICATION BAR EXISTED WITH
RESPECT TO THE EMPLOYEES AT THE WILLOW GROVE NAVAL AIR STATION AND THE
EMPLOYEES AT PHILADELPHIA INTERNATIONAL AIRPORT BASED ON A MAY 3, 1971
CERTIFICATION OF REPRESENTATIVE FOR THAT UNIT. HOWEVER, AS THE SUBJECT
PETITION WAS FILED ON JUNE 5, 1972, MORE THAN 12 MONTHS AFTER THE
CERTIFICATION OF REPRESENTATIVE, I FIND THAT NO CERTIFICATION BAR
EXISTED AS TO THE PETITION HEREIN INSOFAR AS IT ENCOMPASSED THE ABOVE
NOTED UNIT. ACCORDINGLY, I SHALL INCLUDE THE ELIGIBLE EMPLOYEES IN THE
EXISTING UNIT AT THE WILLOW GROVE NAVAL AIR STATION AND THE EMPLOYEES AT
PHILADELPHIA INTERNATIONAL AIRPORT IN THE UNIT FOUND APPROPRIATE.
/7/ THE ACTIVITY RAISED ELIGIBILITY QUESTIONS PERTAINING TO CERTAIN
EMPLOYEES EMPLOYED BY THE PENNSYLVANIA ARMY NATIONAL GUARD. IN VIEW OF
THE DISPOSITION OF THIS CASE, I FIND IT UNNECESSARY TO MAKE A
DETERMINATION WITH RESPECT TO THE STATUS OF SUCH EMPLOYEES.
3 A/SLMR 253; P. 137; CASE NO. 63-2589(CA), A/SLMR NO. 117, FLRC
NO. 72A-1; MARCH 5, 1973.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
AERONAUTICAL CENTER
A/SLMR NO. 253
ON DECEMBER 17, 1971, THE ASSISTANT SECRETARY ISSUED A DECISION AND
ORDER IN A/SLMR NO. 117 IN WHICH HE FOUND THAT THE DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION AERONAUTICAL CENTER
(RESPONDENT) HAD VIOLATED SECTION 19(A)(1) OF THE ORDER BY PROMULGATING
AND MAINTAINING AN ORDER THAT PROHIBITED INSTRUCTORS OF THE FEDERAL
AVIATION ADMINISTRATION ACADEMY FROM ENGAGING IN SOLICITATION OF
STUDENTS IN BEHALF OF A LABOR ORGANIZATION AND FROM WEARING UNION
MEMBERSHIP BUTTONS. THE ASSISTANT SECRETARY ORDERED THE RESPONDENT TO
CEASE AND DESIST FROM SUCH CONDUCT AND TO TAKE CERTAIN AFFIRMATIVE
ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND PROVISIONS OF THE ORDER.
ON APRIL 19, 1972, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
DIRECTED THAT THE ASSISTANT SECRETARY'S DECISION AND ORDER BE STAYED
PENDING DISPOSITION OF THE RESPONDENT'S APPEAL. THEREAFTER, ON FEBRUARY
9, 1973, THE COUNCIL ISSUED ITS DECISION ON APPEAL, SETTING ASIDE THE
ASSISTANT SECRETARY'S FINDING THAT THE PROMULGATION OR MAINTAINING OF AN
ORDER PROHIBITING INSTRUCTORS FROM ENGAGING IN THE SOLICITATION OF
STUDENTS IN BEHALF OF A LABOR ORGANIZATION VIOLATES SECTION 19(A)(1) OF
THE ORDER; AND SUSTAINING THE ASSISTANT SECRETARY'S FINDING THAT THE
PROHIBITION AGAINST THE WEARING OF UNION MEMBERSHIP BUTTONS VIOLATES
SECTION 19(A)(1) OF THE ORDER. PURSUANT TO SECTION 2411.17(C) OF ITS
RULES OF PROCEDURE, THE COUNCIL REMANDED THE MATTER TO THE ASSISTANT
SECRETARY FOR PURPOSES OF COMPLIANCE CONSISTENT WITH ITS DECISION.
PURSUANT TO THE COUNCIL'S DECISION ON APPEAL, THE ASSISTANT SECRETARY
ISSUED A SUPPLEMENTAL DECISION AND ORDER IN WHICH HE ORDERED THAT THE
RESPONDENT CEASE AND DESIST FROM PROMULGATING OR MAINTAINING AN ORDER
WHICH PROHIBITS INSTRUCTORS FROM WEARING UNION BUTTONS AND THAT A NOTICE
TO EMPLOYEES IN THIS REGARD BE DISTRIBUTED AND POSTED.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
AERONAUTICAL CENTER
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 2282
ON DECEMBER 17, 1971, I ISSUED A DECISION AND ORDER IN A/SLMR NO.
117, ORDERING THE RESPONDENT HEREIN TO CEASE AND DESIST FROM CERTAIN
CONDUCT AND TO TAKE CERTAIN AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE
THE PURPOSES AND PROVISIONS OF THE ORDER. THEREAFTER, ON APRIL 19,
1972, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) DIRECTED THAT THE
DECISION AND ORDER BE STAYED PENDING FINAL DISPOSITION OF THE
RESPONDENT'S APPEAL.
ON FEBRUARY 9, 1973, THE COUNCIL ISSUED ITS DECISION ON APPEAL IN THE
SUBJECT CASE SETTING ASIDE THE ASSISTANT SECRETARY'S FINDING THAT THE
PROMULGATION OR MAINTAINING OF AN ORDER WHICH PROHIBITS INSTRUCTORS OF
THE FEDERAL AVIATION ADMINISTRATION ACADEMY FROM ENGAGING IN
SOLICITATION OF STUDENTS IN BEHALF OF A LABOR ORGANIZATION VIOLATES
SECTION 19(A)(1) OF THE ORDER; AND SUSTAINING THE ASSISTANT SECRETARY'S
FINDING THAT THE PROHIBITION AGAINST WEARING UNION MEMBERSHIP BUTTONS
VIOLATES SECTION 19(A)(1) OF THE ORDER. IN THIS REGARD, THE COUNCIL
VACATED ITS STAY OF THE ASSISTANT SECRETARY'S DECISION AND ORDER INSOFAR
AS IT AFFECTED THE ORDER THAT THE AGENCY CEASE AND DESIST FROM
PROMULGATING OR MAINTAINING AN ORDER WHICH PROHIBITS INSTRUCTORS FROM
WEARING UNION MEMBERSHIP BUTTONS AND TAKE AFFIRMATIVE ACTION WITH
RESPECT THERETO. PURSUANT TO SECTION 2411.17(C) OF ITS RULES OF
PROCEDURE, THE COUNCIL REMANDED THE MATTER TO THE ASSISTANT SECRETARY
FOR PURPOSES OF COMPLIANCE CONSISTENT WITH ITS DECISION.
PURSUANT TO THE COUNCIL'S DECISION ON APPEAL, AND PURSUANT TO SECTION
6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND SECTION 203.25(B) OF THE
ASSISTANT SECRETARY'S REGULATIONS, THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS HEREBY MODIFIES THE REMEDIAL ORDER SET FORTH
IN A/SLMR NO. 117 AND ORDERS THAT THE DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION AERONAUTICAL CENTER SHALL:
1. CEASE AND DESIST FROM:
(A) PROMULGATING OR MAINTAINING AN ORDER WHICH PROHIBITS INSTRUCTORS
FROM WEARING UNION MEMBERSHIP BUTTONS.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) DISTRIBUTE TO ALL INSTRUCTORS STILL ASSIGNED TO THE FEDERAL
AVIATION ADMINISTRATION ACADEMY THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. SUCH FORMS SHALL BE SIGNED BY THE
SUPERINTENDENT OF THE ACADEMY AND ALSO SHALL BE POSTED AND MAINTAINED BY
HIM FOR 60 DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO INSTRUCTORS ARE CUSTOMARILY POSTED. THE SUPERINTENDENT
OF THE ACADEMY SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) CANCEL ORDER NO. AC 3710.10B TO THE EXTENT THAT IT IS
INCONSISTENT WITH THE ABOVE.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
MARCH 5, 1973
WE WILL NOT PROMULGATE OR MAINTAIN AN ORDER WHICH PROHIBITS
INSTRUCTORS FROM WEARING UNION MEMBERSHIP BUTTONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491.
TO THE EXTENT THAT ORDER AC 3710.10B, DATED AUGUST 5, 1970, IS
INCONSISTENT HEREWITH, IT IS HEREBY CANCELLED.
DATED . . . BY . . .
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 ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
U.S. DEPARTMENT OF LABOR WHOSE ADDRESS IS: 2511 FEDERAL OFFICE
BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI 64106.
3 A/SLMR 252; P. 135; CASE NO. 72-CU-3698(25); MARCH 2, 1973.
CALIFORNIA AIR NATIONAL GUARD
HEADQUARTERS, 163RD FIGHTER GROUP,
ONTARIO INTERNATIONAL AIRPORT,
ONTARIO, CALIFORNIA
A/SLMR NO. 252
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) SEEKING TO
INCLUDE 46 CIVILIAN TECHNICIANS OF THE AUGMENTED SECURITY POLICE FORCE,
WHO WERE ORIGINALLY EXCLUDED AS "GUARDS" FROM THE CERTIFIED UNIT OF
CIVILIAN TECHNICIANS EMPLOYED BY THE ACTIVITY, IN WHICH NAGE WAS
CERTIFIED AS EXCLUSIVE REPRESENTATIVE ON APRIL 14, 1972. THE ACTIVITY
CONTENDS THAT THE CIVILIAN TECHNICIANS OF THE AUGMENTED SECURITY POLICE
FORCE ARE "GUARDS" WITHIN THE MEANING OF THE ORDER AND SHOULD BE
EXCLUDED FROM THE UNIT.
UNDER ALL THE CIRCUMSTANCES, INCLUDING THE FACT THAT MEMBERS OF THE
AUGMENTED SECURITY POLICE FORCE SPENT AN AVERAGE OF ONLY 40-60 HOURS PER
YEAR ENGAGED IN SECURITY ACTIVITIES, THAT THEY RECEIVED ONLY LIMITED
SECURITY GUARD TRAINING, THAT THEY WORE NO SPECIAL UNIFORMS AND DID NOT
ISSUE TRAFFIC TICKETS OR WRITE GUARD REPORTS, AND THAT EVEN WHEN
PERFORMING SECURITY DUTIES THEY CONTINUED TO REPORT TO THEIR REGULAR
SUPERVISORS, THE ASSISTANT SECRETARY FOUND THAT THE CIVILIAN TECHNICIANS
OF THE AUGMENTED SECURITY POLICE FORCE WERE NOT "GUARDS" AS DEFINED IN
SECTION 2(D) OF THE ORDER.
INASMUCH AS THE ASSISTANT SECRETARY FOUND THAT THE CIVILIAN
TECHNICIANS OF THE AUGMENTED SECURITY POLICE FORCE WERE NOT "GUARDS" AS
DEFINED IN SECTION 2(D) OF THE ORDER AND AS THE RECORD REFLECTED THAT
THESE EMPLOYEES PERFORMED ESSENTIALLY THE SAME DUTIES AS THE EMPLOYEES
IN THE CERTIFIED UNIT AND SHARED A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH SUCH EMPLOYEES, HE ORDERED THAT THE UNIT BE CLARIFIED TO
INCLUDE CIVILIAN TECHNICIANS OF THE ACTIVITY'S AUGMENTED SECURITY POLICE
FORCE.
CALIFORNIA AIR NATIONAL GUARD
HEADQUARTERS, 163RD FIGHTER GROUP,
ONTARIO INTERNATIONAL AIRPORT,
ONTARIO, CALIFORNIA /1/
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PATRICK A. LAVIN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN
CALLED NAGE, IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE
ACTIVITY. /3/ IN THIS PROCEEDING, THE NAGE SEEKS TO CLARIFY THE STATUS
OF 46 CIVILIAN TECHNICIANS WHO ARE MEMBERS OF THE ACTIVITY'S AUGMENTED
SECURITY POLICE FORCE. THESE EMPLOYEES WERE EXCLUDED INITIALLY FROM THE
CERTIFIED UNIT BECAUSE IT WAS FELT THAT THEY WERE ENGAGED IN SECURITY
DUTY AND, THEREFORE, WERE EXCLUDABLE AS "GUARDS" WITHIN THE MEANING OF
SECTION 2(D) OF THE ORDER. HOWEVER, THE RECORD REVEALS THAT FOLLOWING
THE ISSUANCE BY THE ASSISTANT SECRETARY OF THE DECISION IN CALIFORNIA
AIR NATIONAL GUARD HEADQUARTERS, 146TH TACTICAL AIRLIFT WING, VAN NUYS,
CALIFORNIA, A/SLMR NO. 147, WHICH INVOLVED EMPLOYEES WHO ALLEGEDLY WERE
SIMILARLY SITUATED TO THOSE INVOLVED IN THE SUBJECT CASE, THE NAGE
CONCLUDED THAT THE PREVIOUSLY EXCLUDED CIVILIAN TECHNICIANS OF THE
AUGMENTED SECURITY POLICE FORCE WERE NOT GUARDS AS DEFINED IN THE ORDER
AND, THEREFORE, SHOULD BE INCLUDED IN THE CERTIFIED UNIT. CONSEQUENTLY,
ON JUNE 14, 1972, THE NAGE FILED THE PETITION FOR CLARIFICATION OF UNIT
(CU) IN THE SUBJECT CASE SEEKING TO INCLUDE THE 46 CIVILIAN TECHNICIANS
OF THE AUGMENTED SECURITY POLICE FORCE IN THE CERTIFIED UNIT WHICH
CONSISTED OF CIVILIAN TECHNICIANS. THE ACTIVITY TAKES THE POSITION THAT
THE REQUIREMENTS, TRAINING AND UTILIZATION OF THE TECHNICIANS INVOLVED
IN THE SUBJECT CASE DIFFER FROM THOSE OF THE AIR TECHNICIANS INVOLVED IN
A/SLMR NO. 147 BECAUSE OF DIFFERENCES IN THE MISSION OF THE ACTIVITY IN
THAT CASE AND THE MISSION OF THE ACTIVITY IN THE SUBJECT CASE.
THE ACTIVITY HEREIN IS LOCATED AT THE ONTARIO AIR NATIONAL GUARD
BASE. ITS MISSION IS TO PROVIDE AN ACTIVE ARMED AIR DEFENSE ALERT FOR
THE PROTECTION OF THE SOUTHERN CALIFORNIA AREA ON A 24-HOUR BASIS. IN
CONNECTION WITH THE PERFORMANCE OF ITS MISSION, THE ACTIVITY IS REQUIRED
TO PROVIDE A SPECIFIED DEGREE OF SECURITY ON THE BASE AS REQUIRED IN THE
AIR DEFENSE COMMAND SUPPLEMENT TO THE AIR FORCE MANUAL. TO ACHIEVE THE
REQUIRED DEGREE OF SECURITY, A SECURITY FORCE OF 45 TO 50 INDIVIDUALS IS
REQUIRED. THE ACTIVITY HAS AN AUTHORIZED FULL-TIME SECURITY FORCE OF
SIX EMPLOYEES, INCLUDING A SUPERVISOR. THE RECORD ESTABLISHES THAT IN
ORDER TO QUALIFY FOR A POSITION AS A FULL-TIME SECURITY GUARD, AN
INDIVIDUAL MUST HAVE TWO YEARS PREVIOUS EXPERIENCE IN CIVIL OR MILITARY
LAW ENFORCEMENT SECURITY FUNCTIONS AND MUST BE ASSIGNED CURRENTLY IN A
SIMILAR POSITION WITH AN AIR NATIONAL GUARD UNIT WITH A CURRENT SECURITY
CLEARANCE OF "SECRET." FURTHER, THE MAJORITY OF THE MEMBERS OF THE
FULL-TIME SECURITY FORCE HAVE COMPLETED A BASIC SECURITY POLICE COURSE
AT AN AIR FORCE TECHNICAL SCHOOL. IN PERFORMING THEIR DUTIES, FULL-TIME
SECURITY GUARDS WEAR UNIFORMS AND BADGES AND ARE RESPONSIBLE FOR WRITING
GUARD REPORTS. THE RECORD REVEALS THAT THE PRIMARY FUNCTIONS PERFORMED
BY THE SECURITY FORCE ARE RELATED TO "ENTRY CONTROL" AND "SABOTAGE
ALERT" WHICH REQUIRE A MINIMUM OF THREE TO FOUR MEN ON EACH SHIFT. /4/
THE AUGMENTED SECURITY POLICE FORCE WAS ESTABLISHED TO FILL THE GAP
IN MANPOWER REQUIREMENTS BETWEEN THE SIX FULL-TIME SECURITY GUARDS
CURRENTLY EMPLOYED IN THE ACTIVITY AND THE 50-MAN SECURITY FORCE
REQUIRED BY THE AIR DEFENSE COMMAND FOR DEFENSE OF THE BASE. TO MEET
THIS REQUIREMENT 46 "AUGMENTEES" WERE CHOSEN FROM AMONG THE CIVILIAN
TECHNICIANS AT THE BASE AND INCLUDE PERSONNEL WHO ARE ENGAGED IN
MAINTENANCE, SUPPLY, PERSONNEL AND OPERATIONS FUNCTIONS. THE RECORD
REVEALS THAT THE "AUGMENTEES" ARE DIVIDED INTO TWO GROUPS: 24 SECURITY
POLICE "AUGMENTEES" USED FOR THE SABOTAGE ALERT TEAM IN SUPPORT OF
"PRIORITY A" RESOURCES; AND 22 SECURITY POLICE "AUGMENTEES" USED
PRIMARILY FOR BASE DEFENSE AND EMPLOYEE SECURITY. THESE INDIVIDUALS ARE
SELECTED BY THEIR IMMEDIATE SUPERVISORS AND, IN MOST CASES, ARE CHOSEN
ON THE BASIS OF THEIR AVAILABILITY TO PERFORM THE DUTIES REQUIRED.
"AUGMENTEES" RECEIVE BETWEEN 16 AND 18 HOURS OF FORMAL TRAINING AND ARE
REQUIRED TO QUALIFY TWICE A YEAR WITH CERTAIN FIREARMS. THEIR TRAINING
IS PRIMARILY IN THE AREA OF ENTRY CONTROL AND SABOTAGE ALERT AND THEY
MAY BE CALLED UPON IN EMERGENCIES TO PERFORM SUCH DUTIES. THE EVIDENCE
ESTABLISHES THAT THE ENTIRE AUGMENTED SECURITY POLICE FORCE IS CALLED TO
ACTIVE DUTY FOUR TIMES A YEAR WHEN THERE ARE ATTACK EVALUATIONS OR
OPERATIONS READINESS INSPECTIONS MADE BY THE INSPECTOR GENERAL. OTHER
THAN ON THESE FOUR OCCASIONS, THE RECORD REVEALS THAT THE MAJORITY OF
THE "AUGMENTEES" ARE NOT CALLED UPON TO PERFORM SECURITY FUNCTIONS. IN
THIS REGARD, THE AVERAGE "AUGMENTEE" SPENDS APPROXIMATELY 40 TO 60 HOURS
PER YEAR ENGAGED IN SECURITY ACTIVITIES. /5/ WHEN ON DUTY, AN
"AUGMENTEE" IS REQUIRED TO WEAR A FIREARM AND, IN SOME CASES, A BADGE.
HOWEVER, THE RECORD REVEALS THAT "AUGMENTEES" DO NOT WEAR UNIFORMS, DO
NOT HAVE THE AUTHORITY TO ISSUE TRAFFIC TICKETS AND ARE NOT REQUIRED TO
WRITE GUARD REPORTS.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE OCCASIONAL AND SPORADIC
PERFORMANCE OF CERTAIN LIMITED SECURITY FUNCTIONS BY THE CIVILIAN
TECHNICIANS OF THE AUGMENTED SECURITY POLICE FORCE DOES NOT RENDER THEM
"GUARDS" WITHIN THE MEANING OF SECTION 2(D) OF THE ORDER. /6/ THUS, AS
NOTED ABOVE, MEMBERS OF THE AUGMENTED SECURITY POLICE FORCE SPEND ON THE
AVERAGE ONLY 40-60 HOURS PER YEAR ENGAGED IN SECURITY ACTIVITIES; THEY
RECEIVE ONLY LIMITED SECURITY GUARD TRAINING; THEY WEAR NO SPECIAL
UNIFORMS; AND THEY DO NOT ISSUE TRAFFIC TICKETS OR WRITE GUARD REPORTS.
MOREOVER, THE RECORD REVEALS THAT EVEN WHEN PERFORMING SECURITY DUTIES
"AUGMENTEES" CONTINUE TO REPORT TO THEIR REGULAR SUPERVISORS. AS THE
RECORD REFLECTS THAT THE EMPLOYEES IN QUESTION PERFORM ESSENTIALLY THE
SAME DUTIES AS THE EMPLOYEES IN THE CERTIFIED UNIT, ARE WITHIN MANY OF
THE SAME JOB CLASSIFICATIONS, AND SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST WITH SUCH EMPLOYEES, I FIND THAT THE EXISTING
EXCLUSIVELY RECOGNIZED UNIT SHOULD BE CLARIFIED TO INCLUDE THE CIVILIAN
TECHNICIANS OF THE ACTIVITY'S AUGMENTED SECURITY POLICE FORCE.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES (NAGE), 3300 WEST OLIVE AVENUE, SUITE A, BURBANK,
CALIFORNIA 91505, ON APRIL 14, 1972, BE, AND IT HEREBY IS, CLARIFIED BY
INCLUDING IN SAID UNIT THE CIVILIAN TECHNICIANS OF THE AUGMENTED
SECURITY POLICE FORCE EMPLOYED BY THE CALIFORNIA AIR NATIONAL GUARD,
163RD FIGHTER GROUP (ADC), ONTARIO INTERNATIONAL AIRPORT, ONTARIO,
CALIFORNIA.
DATED, WASHINGTON, D.C.
MARCH 2, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ ON APRIL 14, 1972, THE NAGE WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE IN A UNIT OF "ALL CIVILIAN TECHNICIANS EMPLOYED BY THE
CALIFORNIA AIR NATIONAL GUARD, 163RD FIGHTER GROUP (ADC), ONTARIO
INTERNATIONAL AIRPORT, ONTARIO, CALIFORNIA. EXCLUDING MANAGERS,
SUPERVISORS, GUARDS, PERSONS PERFORMING FEDERAL PERSONNEL WORK EXCEPT IN
A PURELY CLERICAL CAPACITY AND PROFESSIONAL EMPLOYEES."
/4/ FULL-TIME SECURITY GUARDS HANDLE "ENTRY CONTROL" ON A 24-HOUR
BASIS AND "SABOTAGE ALERT" ON A 16-HOUR BASIS.
/5/ THE RECORD REVEALS THAT WHEN AN "AUGMENTEE" IS SLATED FOR DUTY ON
THE SABOTAGE ALERT TEAM, HE CONTINUES TO PERFORM HIS REGULAR JOB
FUNCTIONS BUT IS REQUIRED TO RESPOND WITHIN FIVE MINUTES AFTER BEING
CALLED BY THE COMBAT ALERT CENTER. DESPITE THE FACT THAT AN "AUGMENTEE"
IS CALLED TO DUTY BY THE COMBAT ALERT CENTER, HE CONTINUES TO REPORT TO
HIS IMMEDIATE SUPERVISOR.
/6/ CF. GENERAL SERVICES ADMINISTRATION, REGION 2, NEW YORK, NEW
YORK, A/SLMR NO. 220; CALIFORNIA AIR NATIONAL GUARD HEADQUARTERS, 146TH
TACTICAL AIRLIFT WING, VAN NUYS, CALIFORNIA, CITED ABOVE; AND UNITED
STATES DEPARTMENT OF THE AIR FORCE, 910TH TACTICAL AIR SUPPORT GROUP
(AFRES), YOUNGSTOWN MUNICIPAL AIRPORT, VIENNA, OHIO, A/SLMR NO. 12.
3 A/SLMR 251; P. 127; CASE NO. 50-5583; MARCH 2, 1973.
OFFICE OF ECONOMIC OPPORTUNITY,
REGION V, CHICAGO, ILLINOIS
A/SLMR NO. 251
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
2816, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (COMPLAINANT)
AGAINST THE OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS
(RESPONDENT), ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF
EXECUTIVE ORDER 11491 BY FAILING TO NEGOTIATE WITH THE COMPLAINANT
CONCERNING WORKING CONDITIONS AT THE RESPONDENT'S NEW LOCATION.
THE COMPLAINANT HAD REPRESENTED EXCLUSIVELY THE EMPLOYEES OF THE
RESPONDENT SINCE 1968. ON APRIL 13, 1971, THE COMPLAINANT AND OTHER
LOCALS OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(AFGE) REQUESTED TO MEET WITH THE "REGIONAL COUNCIL DIRECTORS" TO
NEGOTIATE CERTAIN MATTERS IN CONNECTION WITH THE MOVE OF SEVERAL
AGENCIES TO A NEW LOCATION. ON APRIL 27, 1971, THE RESPONDENT OFFERED
TO MEET AND CONFER WITH THE COMPLAINANT ON MATTERS INVOLVED IN THE MOVE.
THE FOLLOWING DAY, APRIL 28, 1971, THE PARENT ORGANIZATION OF THE
COMPLAINANT WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A
NATIONWIDE UNIT OF EMPLOYEES OF THE OFFICE OF ECONOMIC OPPORTUNITY
(OEO), INCLUDING EMPLOYEES IN THE UNIT REPRESENTED BY THE COMPLAINANT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT DID MEET AND
CONFER WITH REPRESENTATIVES OF THE COMPLAINANT ON A CONTINUING BASIS
PRIOR TO THE MOVE, AND THAT, IN THESE CIRCUMSTANCES, THE RESPONDENT
FULFILLED ITS OBLIGATION TO NEGOTIATE UNDER SECTION 19(A)(6) OF THE
ORDER. IN ARRIVING AT HIS DECISION, THE ADMINISTRATIVE LAW JUDGE FOUND
IT UNNECESSARY TO CONSIDER THE RESPONDENT'S MOTION TO DISMISS THE
COMPLAINT ON THE GROUNDS THAT THE RESPONDENT HAD NO OBLIGATION TO
NEGOTIATE WITH THE COMPLAINANT AS THE LATTER WAS NOT THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE UNIT EMPLOYEES AFTER APRIL 28, 1971,
WHEN THE CERTIFICATION OF THE NATIONWIDE UNIT, INCLUDING THE UNIT
REPRESENTED BY THE COMPLAINANT, OCCURRED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE CASE, THE ASSISTANT
SECRETARY CONCLUDED THAT WHEN A LABOR ORGANIZATION ACQUIRES EXCLUSIVE
RECOGNITION IN A NATIONWIDE UNIT THAT ENCOMPASSES PREVIOUSLY RECOGNIZED,
LESS COMPREHENSIVE UNITS, SUCH LESS COMPREHENSIVE UNITS CEASE TO EXIST.
IN THIS CONNECTION, HE NOTED THAT THE STUDY COMMITTEE, IN ITS REPORT AND
RECOMMENDATIONS (1969), STATED THAT WHEN NATIONAL EXCLUSIVE RECOGNITION
HAS BEEN GRANTED, " . . . NO RECOGNITION SHOULD BE GRANTED TO ANY OTHER
LABOR ORGANIZATION FOR EMPLOYEES WITHIN THE NATIONAL EXCLUSIVE UNIT."
THE ASSISTANT SECRETARY HELD, THEREFORE, THAT UNDER THE CIRCUMSTANCES OF
THE CASE, ONCE THE PARENT ORGANIZATION WAS CERTIFIED ON APRIL 28, 1971,
AS THE EXCLUSIVE REPRESENTATIVE OF A NATIONWIDE UNIT, INCLUDING THE UNIT
REPRESENTED BY THE COMPLAINANT, THE COMPLAINANT'S RECOGNITIONAL STATUS
WAS, IN EFFECT, TERMINATED AND THE RESPONDENT WAS NOT OBLIGATED TO MEET
AND CONFER WITH THE COMPLAINANT ABSENT EVIDENCE THAT THE COMPLAINANT OR
ITS REPRESENTATIVES HAD BEEN AUTHORIZED BY THE NATIONAL EXCLUSIVE
BARGAINING REPRESENTATIVE TO BARGAIN ON ITS BEHALF. ACCORDINGLY, THE
ASSISTANT SECRETARY SUSTAINED THE RESPONDENT'S MOTION TO DISMISS THE
COMPLAINT.
MOREOVER, THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT EVEN IF THERE WAS AN OBLIGATION TO
NEGOTIATE WITH THE COMPLAINANT, THE RESPONDENT HAD FULFILLED SUCH
OBLIGATION DURING NUMEROUS SESSIONS HELD BETWEEN THE PARTIES PRIOR TO
THE MOVE INTO THE NEW QUARTERS.
OFFICE OF ECONOMIC OPPORTUNITY,
REGION V, CHICAGO, ILLINOIS
AND
LOCAL 2816, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
ON NOVEMBER 8, 1972, ADMINISTRATIVE LAW JUDGE ARTHUR M. GOLDBERG
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO,
ILLINOIS, HEREIN CALLED RESPONDENT, HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICE ALLEGED, AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED.
THEREAFTER, LOCAL 2816, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HEREIN CALLED COMPLAINANT, FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS OF THE ADMINISTRATIVE LAW
JUDGE ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION, AND THE ENTIRE RECORD IN THIS CASE,
INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION TO
THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT IN THE INSTANT CASE ALLEGED, IN EFFECT, THAT THE
RESPONDENT VIOLATED SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 BY FAILING
TO NEGOTIATE CONCERNING WORKING CONDITIONS AT THE RESPONDENT'S NEW
LOCATION.
THE ESSENTIAL FACTS OF THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH IN DETAIL IN THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
THE COMPLAINANT HAD REPRESENTED EXCLUSIVELY THE EMPLOYEES OF THE
RESPONDENT SINCE 1968. ON APRIL 13, 1971, THE COMPLAINANT, ALONG WITH
THREE OTHER LOCALS OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE) REPRESENTING EMPLOYEES OF OTHER AGENCIES IN THE CHICAGO
AREA, SENT A JOINT TELEGRAM REQUESTING TO MEET WITH ALL "REGIONAL
COUNCIL DIRECTORS" /1/ TO NEGOTIATE CERTAIN MATTERS IN CONNECTION WITH
AN UPCOMING MOVE OF SEVERAL AGENCIES TO A NEW LOCATION. IT APPEARS
THAT, THEREAFTER, THE REGIONAL COUNCIL INDICATED THAT THE INDIVIDUAL
AGENCIES WOULD MEET WITH THOSE LABOR ORGANIZATIONS WHICH HAD BEEN
ACCORDED EXCLUSIVE RECOGNITION BY THE PARTICULAR AGENCY INVOLVED.
ACCORDINGLY, ON APRIL 27, 1971, THE RESPONDENT OFFERED TO MEET AND
CONFER WITH THE COMPLAINANT ON MATTERS INVOLVED IN THE MOVE. THE
FOLLOWING DAY, APRIL 28, 1971, THE PARENT ORGANIZATION OF THE
COMPLAINANT WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A
NATIONWIDE UNIT OF EMPLOYEES OF THE OFFICE OF ECONOMIC OPPORTUNITY
(OEO), INCLUDING EMPLOYEES IN THE UNIT REPRESENTED BY THE COMPLAINANT.
THE RECORD SHOWS, AND THE ADMINISTRATIVE LAW JUDGE FOUND, THAT
BETWEEN LATE APRIL OR EARLY MAY 1971 AND CONTINUING SOMETIME IN OCTOBER
1971, JUST PRIOR TO THE MOVE, THE RESPONDENT MET AND CONFERRED WITH
REPRESENTATIVES OF THE COMPLAINANT ON A NUMBER OF OCCASIONS. IN THIS
REGARD, THE ADMINISTRATIVE LAW JUDGE FOUND THAT DURING THIS PERIOD OF
THE SEVERAL MONTHS PRIOR TO THE MOVE, REPRESENTATIVES OF THE RESPONDENT
MET ON A CONTINUING BASIS WITH REPRESENTATIVES OF THE COMPLAINANT AND
DISCUSSED ALL MATTERS RAISED BETWEEN THEM REGARDING CONDITIONS OF
EMPLOYMENT TO BE ESTABLISHED IN THE NEW OFFICES. HE CONCLUDED THAT IN
THESE CIRCUMSTANCES THE RESPONDENT HAD FULFILLED ITS OBLIGATION TO
NEGOTIATE UNDER SECTION 19(A)(6) OF THE ORDER.
IN ARRIVING AT HIS CONCLUSION, THE ADMINISTRATIVE LAW JUDGE FOUND IT
UNNECESSARY TO CONSIDER, AMONG OTHER THINGS, /2/ THE RESPONDENT'S MOTION
TO DISMISS THE COMPLAINT ON THE GROUNDS THAT IT HAD NO OBLIGATION TO
NEGOTIATE WITH THE COMPLAINANT AS THE LATTER WAS NOT THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF THE UNIT EMPLOYEES AFTER APRIL 28, 1971,
WHEN THE PARENT ORGANIZATION OF THE COMPLAINANT WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE FOR A NATIONWIDE UNIT ENCOMPASSING THE UNIT
REPRESENTED BY THE COMPLAINANT. IN ITS EXCEPTIONS TO THE ADMINISTRATIVE
LAW JUDGE'S REPORT AND RECOMMENDATION, THE COMPLAINANT NOTED THE FAILURE
OF THE ADMINISTRATIVE LAW JUDGE TO REACH THIS ISSUE, AND RESTATED ITS
POSITION THAT IT DID NOT LOSE ITS EXCLUSIVE REPRESENTATIVE STATUS EVEN
THOUGH THE PARENT ORGANIZATION OF THE COMPLAINANT RECEIVED CERTIFICATION
FOR A NATIONWIDE UNIT.
IN MY VIEW, WHEN A LABOR ORGANIZATION ACQUIRES EXCLUSIVE RECOGNITION
IN A NATIONWIDE UNIT THAT ENCOMPASSES PREVIOUSLY RECOGNIZED, LESS
COMPREHENSIVE EXCLUSIVE BARGAINING UNITS, SUCH LESS COMPREHENSIVE UNITS
CEASE TO EXIST. THUS, THE STUDY COMMITTEE, IN ITS REPORT AND
RECOMMENDATIONS (1969), STATED:
WHEN NATIONAL EXCLUSIVE RECOGNITION HAS BEEN GRANTED IN AN
APPROPRIATE NATIONAL UNIT, NO RECOGNITION SHOULD BE GRANTED TO ANY OTHER
LABOR ORGANIZATION FOR EMPLOYEES WITHIN THE NATIONAL EXCLUSIVE UNIT.
THIS DOES NOT PRECLUDE CONSULTATION OR NEGOTIATION AT ANY LEVEL WITH
REPRESENTATIVES OF THE NATIONALLY RECOGNIZED EXCLUSIVE UNION.
UNDER THE CIRCUMSTANCES OF THE INSTANT CASE, THEREFORE, ONCE THE
PARENT ORGANIZATION OF THE COMPLAINANT WAS CERTIFIED ON APRIL 28, 1971,
AS THE EXCLUSIVE REPRESENTATIVE IN A NATIONWIDE UNIT, INCLUDING THE UNIT
REPRESENTED BY THE COMPLAINANT, THE LATTER'S RECOGNITIONAL STATUS WAS,
IN EFFECT, TERMINATED. THUS, THEREAFTER, THE RESPONDENT WAS NOT
OBLIGATED TO MEET AND CONFER WITH THE COMPLAINANT ABSENT EVIDENCE THAT
THE LATTER OR ITS REPRESENTATIVES HAD BEEN AUTHORIZED BY THE NATIONAL
EXCLUSIVE BARGAINING REPRESENTATIVE TO BARGAIN ON ITS BEHALF. /3/ IN
THESE CIRCUMSTANCES, I SUSTAIN THE RESPONDENT'S MOTION TO DISMISS ON THE
BASIS THAT AT ALL TIMES MATERIAL HEREIN THERE WAS NO BARGAINING
OBLIGATION OWED TO THE COMPLAINANT. /4/
MOREOVER, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT
EVEN ASSUMING AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT EXISTED,
UNDER THE CIRCUMSTANCES OF THIS CASE THE RESPONDENT FULFILLED SUCH
OBLIGATION DURING THE NUMEROUS SESSIONS HELD BETWEEN THE PARTIES PRIOR
TO THE MOVE INTO THE NEW QUARTERS.
ACCORDINGLY, IN ACCORDANCE WITH THE RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE, I SHALL ORDER THAT THE COMPLAINT HEREIN BE
DISMISSED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 50-5583 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 2, 1973
/1/ THE REGIONAL COUNCIL IS COMPOSED OF THE REGIONAL DIRECTORS OR
ADMINISTRATORS OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, THE
OFFICE OF ECONOMIC OPPORTUNITY, THE DEPARTMENT OF LABOR, THE DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT AND THE DEPARTMENT OF TRANSPORTATION.
/2/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE RESPONDENT'S MOTION TO DISMISS ON THE GROUNDS THAT THE REQUEST
TO NEGOTIATE IN THIS MATTER WAS FOR MEETINGS WITH A MULTI-EMPLOYER GROUP
AND MULTI-EMPLOYER BARGAINING IS NOT REQUIRED BY THE EXECUTIVE ORDER.
/3/ THERE WAS NO EVIDENCE IN THE INSTANT CASE THAT SUCH AN
AUTHORIZATION WAS GRANTED TO THE COMPLAINANT OR ITS REPRESENTATIVES.
/4/ I FIND IT UNNECESSARY TO DECIDE WHETHER, UNDER OTHER
CIRCUMSTANCES, NEGOTIATIONS WITH INDIVIDUALS WHO WERE NOT DESIGNATED AS
AGENTS OR REPRESENTATIVES OF THE CERTIFIED EXCLUSIVE BARGAINING
REPRESENTATIVE MAY CONSTITUTE A VIOLATION OF THE ORDER.
OFFICE OF ECONOMIC OPPORTUNITY
REGION V, CHICAGO, ILLINOIS
AND
LOCAL 2816, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
MR. WAYNE KENNEDY, CHICAGO, ILL.
FOR THE COMPLAINANT
EUGENE RING, ESQ., OFFICE OF THE
REGIONAL DIRECTOR, OFFICE OF
ECONOMIC OPPORTUNITY, REGION
V, CHICAGO, ILL.
FOR THE RESPONDENT
BEFORE: ARTHUR M. GOLDBERG
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING WAS HEARD IN CHICAGO, ILLINOIS, ON JULY 18, 1972,
PURSUANT TO AN ORDER RESCHEDULING HEARING ISSUED ON JUNE 28, 1972, /1/
BY THE REGIONAL ADMINISTRATOR FOR THE CHICAGO REGION. THIS MATTER
ARISES UNDER EXECUTIVE ORDER 11491 (HEREINAFTER CALLED THE ORDER)
PURSUANT TO SECTION 203.8 OF THE RULES AND REGULATIONS OF THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS (HEREINAFTER CALLED THE
ASSISTANT SECRETARY). IT WAS INITIATED BY A COMPLAINT FILED ON OCTOBER
29, 1971, /2/ BY LOCAL 2816, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (HEREINAFTER CALLED THE UNION OR THE COMPLAINANT)
ALLEGING THAT THE OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO,
ILLINOIS (HEREINAFTER CALLED THE RESPONDENT OR OEO) HAD VIOLATED SECTION
19(A)(6) OF THE ORDER BY FAILING TO NEGOTIATE CONCERNING WORKING
CONDITIONS AT THE RESPONDENT'S NEW LOCATION.
AT THE OPENING OF THE HEARING THE RESPONDENT MOVED TO DISMISS THE
COMPLAINT ON A NUMBER OF GROUNDS. FIRST, RESPONDENT CONTENDED THAT THE
REQUEST TO NEGOTIATE WAS FOR MEETINGS WITH A MULTI-EMPLOYER GROUP
INCLUDING, IN ADDITION TO RESPONDENT, THE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, DEPARTMENT OF TRANSPORTATION, DEPARTMENT OF LABOR
AND THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT. RESPONDENT MOVED
TO DISMISS ON THE GROUND THAT MULTI-EMPLOYER BARGAINING IS NOT REQUIRED
BY EXECUTIVE ORDER 11491. SECOND, THE MOTION TO DISMISS WAS BASED ON
THE DISPLACEMENT OF THE COMPLAINANT AS BARGAINING REPRESENTATIVE OF THE
UNIT EMPLOYEES BY A CERTIFICATION AS EXCLUSIVE REPRESENTATIVE ISSUED ON
APRIL 28, 1971, TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, THE COMPLAINANT'S PARENT BODY. ERGO, RESPONDENT ARGUED IT HAD
NO DUTY TO NEGOTIATE WITH COMPLAINANT AFTER CERTIFICATION OF THE PARENT
BODY.
RESPONDENT'S MOTION TO DISMISS WAS DENIED WITH THE OBSERVATION THAT
"THESE ARE NOT MATTERS WHICH I BELIEVE SHOULD BE DECIDED ORALLY FROM THE
BENCH."
ALL PARTIES WERE REPRESENTED AT AND PARTICIPATED IN THE HEARING AND
WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO INTRODUCE EVIDENCE, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, TO PRESENT ORAL ARGUMENT AND TO
FILE BRIEFS. ORAL ARGUMENT WAS WAIVED, RESPONDENT FILED A BRIEF AND THE
COMPLAINANT FILED A LENGTHY TELEGRAM IN SUPPORT OF ITS POSITION.
UPON THE ENTIRE RECORD IN THE CASE, FROM MY READING OF THE
POST-HEARING STATEMENTS OF POSITION, AND FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING:
THE UNION WAS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
EMPLOYEES IN REGION V OF THE OFFICE OF ECONOMIC OPPORTUNITY UNTIL ITS
PARENT BODY WAS CERTIFIED ON APRIL 28, 1971, FOR A UNIT OF "ALL
NON-SUPERVISORY GS AND WG EMPLOYEES INCLUDING PROFESSIONALS OF THE
OFFICE OF ECONOMIC OPPORTUNITY, NATIONWIDE." /3/ PURSUANT TO THAT
CERTIFICATION A COLLECTIVE BARGAINING AGREEMENT WAS ENTERED INTO ON
MARCH 31, 1972 BETWEEN OEO AND "THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES AFL-CIO REPRESENTING THE NATIONAL COUNCIL OF OEO LOCALS FOR
OEO EMPLOYEES."
A MOVE OF OEO'S CHICAGO OFFICE TO 300 SOUTH WACKER HAD BEEN UNDER
CONSIDERATION FOR SOME TIME WHEN, ON APRIL 13, 1971, /4/ REGIONAL
DIRECTOR OF OEO'S REGION V IN CHICAGO:
PURSUANT TO EXECUTIVE ORDER 11491 THE UNDERSIGNED REQUESTS TO MEET
WITH ALL REGIONAL COUNCIL DIRECTORS TO NEGOTIATE THE FOLLOWING ITEMS FOR
THE 300 SOUTH WACKER BUILDING (1) DAY CARE (2) HEALTH CLINIC (3) CREDIT
UNION (4 VENDING MACHINES (5) UNION OFFICES (6) OFFICE LANDSCAPING (7)
NON-PROFIT CAFETERIA (8) SHUTTLE SERVICE TO COMMUTER LINES (9) REDUCED
PARKING (10) REST AND RECREATION FACILITIES INCLUDING PHYSICAL FITNESS
(11) FLEXIBLE WORKING HOURS (12) CAREER DEVELOPMENT TRAINING INSTITUTE
(13) CONSOLIDATED PERSONNEL OFFICES (14) COMPREHENSIVE LIBRARY SERVICE.
WE FURTHER REQUEST TO MEET WITH ALL DIRECTORS TO NEGOTIATE
IMPLEMENTATION OF OUR AFFIRMATIVE ACTION SURVEY REQUEST IN ORDER TO
JOINTLY MOUNT HIGH IMPACT SOCIAL PROGRAMS TO ENABLE LOW INCOME AND
MINORITY CITIZENS TO QUALIFY FOR FEDERAL EMPLOYMENT AND UPWARD MOBILITY.
THE CHICAGO FEDERAL SYSTEM MUST BE REFORMED IN ORDER TO RESPOND TO
PRESSING SOCIAL NEEDS AND TO SERVE AS A RESPONSIBLE EMPLOYER. WE LOOK
FORWARD TO MEETING WITH YOU IN ORDER TO PLACE THE FIVE SOCIOECONOMIC
AGENCIES AND THE ENTIRE CHICAGO FEDERAL SYSTEM INTO THE MAIN STREAM OF
SOCIAL CHANGE.
STANLEY STERN, A WITNESS FOR RESPONDENT, /5/ TESTIFIED THAT THE
REGIONAL COUNCIL IS A COORDINATING BODY OF THE VARIOUS GOVERNMENT
AGENCIES OCCUPYING THE OFFICE SPACE INVOLVED IN THESE PROCEEDINGS.
AFTER RECEIPT OF THE TELEGRAM SET FORTH ABOVE THE SEVERAL AGENCIES
DETERMINED THAT THEY WOULD MEET INDIVIDUALLY WITH THE LOCAL UNIONS
AUTHORIZED TO REPRESENT THEIR EMPLOYEES. FURTHER, SOME OF THE AGENCIES
DEALT WITH THEIR EMPLOYEES' REPRESENTATIVES THROUGH THEIR WASHINGTON
HEADQUARTERS AND THE EMPLOYEES OF CERTAIN OF THE AGENCIES WERE NOT
REPRESENTED BY UNIONS. ACCORDINGLY, ON APRIL 27 STERN SENT THE
FOLLOWING TELEGRAM TO MANUEL JUAREZ, THE COMPLAINANT'S PRESIDENT:
THIS IS IN RESPONSE TO THE TELEGRAM OF APRIL 13, 1971, FROM YOU AND
MESSRS. KENNEDY, RIORDAN, ANDERSON, JONES, AND KAPLAN TO ME, WHEREIN YOU
REQUESTED ALL REGIONAL COUNCIL DIRECTORS TO NEGOTIATE CERTAIN LISTED
ITEMS FOR THE 300 SOUTH WACKER BUILDING AND TO NEGOTIATE IMPLEMENTATION
OF YOUR AFFIRMATIVE ACTION SURVEY REQUEST.
WE ARE ADVISED THAT THE REGIONAL COUNCIL HAS RESPONDED TO THE
TELEGRAM BY SUGGESTING THAT NEGOTIATIONS OF THE VARIOUS ITEMS PERTAINING
TO THE 300 SOUTH WACKER BUILDING BE UNDERTAKEN BETWEEN EACH INDIVIDUAL
AGENCY AND THE PARTICULAR LABOR ORGANIZATION THAT HAS BEEN ACCORDED
RECOGNITION BY THAT AGENCY.
THE REGIONAL OFFICE IS WILLING TO MEET WITH LOCAL 2816 AND CONFER
WITH RESPECT TO THOSE ITEMS IN YOUR LIST WHICH CAN BE DEALT WITH BY OUR
AGENCY. PLEASE ADVISE WITH REGARD TO A MEETING TIME. WE WILL ATTEMPT
TO DEFINE THE FOURTEEN ITEMS AND DISCUSS THE PROGRESS.
ON APRIL 28 THE AREA ADMINISTRATOR ACTING FOR THE ASSISTANT SECRETARY
ISSUED A CERTIFICATION TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, FOR A UNIT OF ALL OEO NON-SUPERVISORY GS AND WG
EMPLOYEES INCLUDING PROFESSIONALS, NATIONWIDE, INCLUDING RESPONDENT'S
EMPLOYEES. THUS, THE BARGAINING UNIT REPRESENTED BY THE COMPLAINANT
MERGED INTO THE AFGE'S NATIONWIDE UNIT.
SOMETIME IN APRIL OR MAY THE UNION ELECTED A THREE MEMBER BUILDING
COMMITTEE TO MEET WITH OEO MANAGEMENT ABOUT CONDITIONS TO PERTAIN IN THE
NEW QUARTERS. /6/
THE FOLLOWING ACCOUNT OF THE MEETINGS AND NEGOTIATIONS BETWEEN THE
UNION AND RESPONDENT IS BASED ON A SYNTHESIS OF THE TESTIMONY OF MICHAEL
KANE, A UNION WITNESS, AND THAT OF STANLEY STERN, THE RESPONDENT'S ONLY
WITNESS. BECAUSE I FIND THAT THE RECORD EVIDENCE ESTABLISHES THAT OVER
A PERIOD OF MONTHS OEO MET AND NEGOTIATED WITH THE UNION CONCERNING
CONDITIONS IN THE NEW OFFICE QUARTERS, IRRESPECTIVE OF ANY LEGAL
DEFENSES RAISED BY RESPONDENT'S MOTION TO DISMISS THE COMPLAINT, I SHALL
RECOMMEND DISMISSAL OF THE COMPLAINT HEREIN.
BETWEEN LATE APRIL OR EARLY MAY AND CONTINUING SOMETIME IN OCTOBER,
JUST PRIOR TO THE MOVE INTO THE NEW QUARTERS, THE UNION'S BUILDING
COMMITTEE MET BETWEEN SIX AND TEN TIMES WITH OEO MANAGEMENT. CERTAIN OF
THESE MEETINGS WERE FORMAL IN NATURE, OTHERS WERE MORE CASUAL. IN
ADDITION, THERE WERE OTHER DISCUSSIONS ABOUT THE SUBJECT OF THE
NEGOTIATIONS BETWEEN STERN AND KANE WHEN THEY CHANCED UPON EACH OTHER IN
THE OFFICE. BY SUBJECT MATTER THE FOLLOWING NEGOTIATIONS TOOK PLACE.
FLOOR PLANS AND THE PLACEMENT OF EMPLOYEES IN THE NEW OFFICE SPACE
WAS DISCUSSED FROM THE TIME MANAGEMENT AND THE BUILDING COMMITTEE FIRST
MET IN APRIL OR MAY UNTIL THE LAST MEETING IN OCTOBER. FROM THE START
THE UNION REPRESENTATIVES EXPRESSED THEIR DISPLEASURE WITH THE PLACEMENT
OF THE EMPLOYEES, THE LACK OF PRIVATE OFFICES AND THE PRESSURE ON THEM
TO APPROVE THE PROPOSED PLANS. STERN TESTIFIED THAT OEO WAS UNDER
PRESSURE FROM THE GENERAL SERVICES ADMINISTRATION (HEREINAFTER CALLED
GSA) TO SUBMIT FINAL PLANS. THE UNION AGREED TO THE ASSIGNMENT OF
OFFICES TO SUPERVISORS AND EMPLOYEES AT GRADE GS-13 AND ABOVE. DURING
THE MEETINGS THE UNION NOTED THAT ONE SUPERVISOR HAD BEEN OMITTED FROM
THE LIST OF THOSE ASSIGNED TO PRIVATE OFFICES AND MANAGEMENT MODIFIED
THE PLANS ACCORDINGLY. STERN POINTED OUT TO THE BUILDING COMMITTEE THAT
THEY HAD TO WORK WITHIN GSA RULES ON THE ASSIGNMENT OF SPACE AND OFFICES
ON THE BASIS OF GRADE AND RESPONSIBILITY AND THAT NEITHER MANAGEMENT NOR
THE UNION WAS FREE TO OPERATE OUTSIDE OF GSA GUIDELINES.
DESPITE GSA REGULATIONS AGAINST ASSIGNMENT OF OFFICE SPACE TO THE
EMPLOYEES' REPRESENTATIVE OEO DID SO, SETTING ASIDE AN INSIDE OFFICE FOR
THE UNION'S USE AND MARKING THE SPACE ON THE PLAN SUBMITTED TO GSA AS AN
"INSPECTOR'S" OFFICE. DURING THE COURSE OF THE MEETINGS THE UNION'S
BUILDING COMMITTEE ASKED FOR A WINDOW OFFICE FOR THE UNION. THE INSIDE
OFFICE INITIALLY ASSIGNED TO THE UNION BY OEO IS PRESENTLY USED FOR THAT
PURPOSE.
KANE TESTIFIED THAT THE UNION'S BUILDING COMMITTEE WAS ADVISED BY OEO
MANAGEMENT THAT NEW FURNITURE WAS TO BE PURCHASED FOR EMPLOYEES IN
GRADES 1 THROUGH 12. HE RECALLED THAT THIS MATTER CAME UP EARLY IN THE
MEETINGS, PROBABLY AT THE FIRST SESSION IN MAY. AT THAT TIME RESPONDENT
SOLICITED THE COMMITTEE'S "INPUT" IN LOOKING FOR NEW FURNITURE. THE
COMMITTEE WAS SHOWN A FURNITURE CATALOGUE AND IN JUNE ARRANGEMENTS WERE
MADE FOR THE COMMITTEE TO VISIT THE SUPPLIER'S SHOWROOM.
IN ADDITION TO CONCERN ABOUT THE COST OF THE NEW FURNITURE, AFTER THE
VISIT TO THE SHOWROOM, THE UNION BUILDING COMMITTEE WAS TROUBLED BY AN
APPARENT FAILURE BY THE FURNITURE SUPPLIER TO COMPLY WITH MINORITY
HIRING REQUIREMENTS. SUBSEQUENTLY, A CHARGE WAS FILED ALLEGING THAT THE
SUPPLIER WAS VIOLATING EQUAL EMPLOYMENT STANDARDS.
KANE TESTIFIED THAT SOMETIME BEFORE JULY 1 HE ATTENDED A MEETING WITH
STERN AND TOP LEVEL REPRESENTATIVES OF THE DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, LABOR AND HOUSING AND URBAN DEVELOPMENT AT WHICH
THE DECISION ON ORDERING FURNITURE WAS MADE. /7/
THE ISSUES OF PROFITS FROM THE VENDING MACHINES IN THE NEW BUILDING
AND THE OPERATION OF A NON-PROFIT CAFETERIA BY A MINORITY FIRM BECAME
INTERTWINED DURING THE MEETINGS. THE UNION BUILDING COMMITTEE ASKED
THAT THE VENDING MACHINE PROFITS BE USED FOR AN EMPLOYEE BENEFIT CLUB.
RESPONDENT WAS ADVISED BY GSA THAT SUCH PROFITS HAD TO FLOW TO THE
BLIND. OEO PASSED ON THIS INFORMATION TO THE UNION REPRESENTATIVES. AS
TO THE CAFETERIA THE BUILDING COMMITTEE SUGGESTED THAT IT BE OPERATED BY
A MINORITY BUSINESS FIRM TO PROVIDE MINORITY EMPLOYMENT. HERE AGAIN,
ALTHOUGH RESPONDENT AGREED WITH THE UNION'S GOAL AS IT HAD IN THE CASE
OF VENDING MACHINE PROFITS, GSA REQUIREMENTS AS TO CAPITAL INVESTMENT IN
THE CAFETERIA OPERATION PRECLUDED CARRYING OUT THE PURPOSE AGREED TO BY
THE UNION AND RESPONDENT.
THE CONTRACT FINALLY LET BY GSA FOR OPERATION OF THE VENDING MACHINES
AND THE CAFETERIA WAS TO A PRIVATE FIRM AND THE PROFITS FROM BOTH
OPERATIONS WERE FOR THE BENEFIT OF THE PRIVATE CONTRACTOR.
STERN AND KANE AGREED THAT THE SUBJECT OF A HEALTH CLINIC AROSE EARLY
IN THE MEETINGS. HOWEVER, NEITHER COULD TESTIFY WITH ANY PARTICULARITY
ABOUT THE DISCUSSIONS.
STERN TESTIFIED THAT A HEALTH CLINIC WAS SCHEDULED TO OPEN IN THE NEW
BUILDING A WEEK AFTER THE DATE OF THE HEARING HEREIN.
KANE RECALLED THAT THE BUILDING COMMITTEE HAD ASKED ABOUT THE MANNER
IN WHICH A UNION REPRESENTATIVE HAD BEEN SELECTED TO SERVE ON A
COMMITTEE INVESTIGATING THE POSSIBILITY OF DAY CARE FACILITIES IN THE
NEW BUILDING. THE BUILDING COMMITTEE TOOK THE POSITION THAT IT WAS THE
UNION WHICH SHOULD SELECT ITS REPRESENTATIVE.
STERN TESTIFIED THAT HE HAD TRIED TO RAISE THE ISSUE OF DAY CARE
FACILITIES WITH THE BUILDING COMMITTEE BUT THEY HAD DISCLAIMED AUTHORITY
TO NEGOTIATE ON THE SUBJECT. THEREAFTER, STERN CONDUCTED HIS OWN SURVEY
AMONG RESPONDENT'S EMPLOYEES AS TO THEIR INTEREST IN SUCH A SERVICE.
OFFICE LANDSCAPING PLAYED A PROMINENT ROLE THROUGHOUT THE DISCUSSIONS
BETWEEN RESPONDENT AND THE UNION BUILDING COMMITTEE. OFFICE LANDSCAPING
IS A TECHNIQUE OF PARTITIONING OPEN OFFICE SPACE BY THE USE OF SOUND
DEADENING SCREENS AND NOISE ABSORBING FURNITURE.
THE UNION REPRESENTATIVES WERE CONCERNED ABOUT THE NOISE LEVEL IN THE
OFFICE. STERN TESTIFIED THAT MANAGEMENT SUPPLIED THE BUILDING COMMITTEE
WITH CATALOGUES OF THE OFFICE LANDSCAPING EQUIPMENT, ARRANGED FOR THE
UNION REPRESENTATIVES TO SEE THE FURNITURE WHICH WOULD BE USED AND
FINALLY GAVE THE UNION A COMMITMENT IN WRITING THAT IF THE NOISE FACTOR
EXCEEDED STATED LIMITS ADDITIONAL ACOUSTICAL SCREENS WOULD BE ADDED.
THE UNION BUILDING COMMITTEE EXPRESSED ITS CONCERN EARLY IN THE
MEETINGS ABOUT THE LARGE NUMBER OF EMPLOYEES LEAVING THE BUILDING AT THE
SAME TIME.
STERN TESTIFIED THAT HE DISCUSSED THE IDEA OF STAGGERED WORKING HOURS
WITH KENNEDY OF THE UNION AND THEREAFTER LEARNED THROUGH THE REGIONAL
COUNCIL THAT HEW, THE LARGEST EMPLOYER IN THE BUILDING, WOULD BE
ARRIVING AND LEAVING 15 MINUTES EARLIER THAN THE OTHER TENANTS AND THUS
THE ANTICIPATED PROBLEM WOULD NOT ARISE. ACCORDINGLY, OEO DID NOT
CHANGE ITS OWN SCHEDULE OF HOURS.
STERN ALSO TESTIFIED THAT WITH THE BUILDING COMMITTEE HE STUDIED THE
SCHEDULES OF AVAILABLE BUS ROUTES AND AGREED TO LOOK INTO THE
POSSIBILITY OF ARRANGING FOR THE CHICAGO TRANSIT AUTHORITY TO PROVIDE
ADDITIONAL BUS SERVICE AFTER THE MOVE INTO THE NEW BUILDING.
STERN TESTIFIED WITHOUT CONTRADICTION THAT THERE WAS AT THE TIME OF
THE HEARING A SHUTTLE SERVICE PROVIDED BY THE TRANSIT AUTHORITY.
STERN TESTIFIED THAT HE HAD DISCUSSED A DETAILED SUGGESTION FOR A
BUILDING CREDIT UNION WITH LEROYAL KING, WHO WAS AT THAT TIME PRESIDENT
OF THE UNION. STERN STATED THAT AT THE TIME OF THE HEARING A CREDIT
UNION HAD BEEN OPENED IN THE BUILDING AND WAS AVAILABLE FOR ALL
EMPLOYEES.
STERN TESTIFIED THAT IN AUGUST OR SEPTEMBER HE DISCUSSED WITH THE
BUILDING COMMITTEE AN INVESTIGATION OF THE POSSIBILITY OF SECURING
REDUCED RATE PARKING FOR EMPLOYEES TO BE HOUSED IN THE NEW BUILDING.
HOWEVER, DESPITE THESE EFFORTS THEY WERE UNSUCCESSFUL IN LOCATING SUCH
REDUCED RATE PARKING SPACE.
AS NOTED ABOVE, ALTHOUGH THE RESPONDENT RAISED SEVERAL LEGAL DEFENSES
GOING TO ITS DUTY TO NEGOTIATE WITH THE UNION FOLLOWING CERTIFICATION OF
AFGE FOR A NATIONWIDE UNIT OF OEO EMPLOYEES, I FIND IT UNNECESSARY IN
DECIDING THIS CASE TO REACH THOSE LEGAL DEFENSES. ALTHOUGH THE
TESTIMONY OFFERED BY KANE AND STERN, THE ONLY TWO WITNESSES WHO
PARTICIPATED IN THE MEETINGS BETWEEN RESPONDENT AND THE UNION'S BUILDING
COMMITTEE, DIFFERS IN SOME RESPECTS, THIS VARIANCE ARISES PRIMARILY FROM
FAILURE OF MEMORY RATHER THAN DIVERGENT ACCOUNTS OF THE DISCUSSIONS
WHICH WERE HELD. VIEWED AS A WHOLE I FIND THAT THEIR TESTIMONY
ESTABLISHES THAT DURING THE PERIOD COMMENCING LATE IN APRIL OR EARLY IN
MAY AND CONTINUING UNTIL RESPONDENT MOVED INTO ITS NEW QUARTERS IN
OCTOBER, OEO MET ON A CONTINUING BASIS WITH THE UNION'S REPRESENTATIVES,
DISCUSSED WITHOUT LIMITATION ALL MATTERS RAISED BY THE BUILDING
COMMITTEE AND INDEED ON ITS OWN RAISED MATTERS PERTAINING TO THE
EMPLOYMENT CONDITIONS IN THE NEW PREMISES AND WITHIN THE STRICTURES LAID
DOWN BY GSA SOUGHT TO ACCOMMODATE ITS OWN VIEWS AS TO THE CONDITIONS OF
EMPLOYMENT TO BE ESTABLISHED IN THE NEW OFFICES WITH THOSE OF THE UNION.
THUS, I FIND THAT THE RESPONDENT FULFILLED ITS OBLIGATIONS TO NEGOTIATE
WITH THE UNION SET FORTH IN SECTION 19(A)(6) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS IT IS
RECOMMENDED THAT THE COMPLAINT AGAINST THE RESPONDENT, OFFICE OF
ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, CASE NO. 50-5583, BE
DISMISSED.
DATED AT WASHINGTON, D.C.
NOVEMBER 8, 1972
/1/ THE ORIGINAL NOTICE OF HEARING ISSUED ON MAY 19, 1972.
/2/ UNLESS OTHERWISE NOTED ALL DATES HEREINAFTER WERE IN 1971.
/3/ CASE NO. 22-2299(RO).
/4/ UNLESS OTHERWISE NOTED ALL DATES HEREINAFTER WERE IN 1971.
/5/ DURING THE EVENTS HEREIN STERN WAS DEPUTY REGIONAL DIRECTOR FOR
ADMINISTRATION FOR OEO. AT THE TIME OF THE HEARING HEREIN STERN
OCCUPIED THE POSITION OF SPECIAL ASSISTANT TO THE REGIONAL DIRECTOR FOR
REGIONAL COUNCIL.
/6/ TESTIMONY OF MICHAEL KANE, CHAIRMAN OF THE UNION'S BUILDING
COMMITTEE.
/7/ IN THIS INSTANCE, IN EFFECT, THE UNION'S REPRESENTATIVES
PARTICIPATED IN DISCUSSIONS WITH THE MEMBERS OF THE REGIONAL COUNCIL.
3 A/SLMR 250; P. 123; CASE NOS. 50-5522, 50-5529; MARCH 2, 1973.
FEDERAL AVIATION ADMINISTRATION,
GREAT LAKES REGION,
CHICAGO AIRPORTS DISTRICT OFFICE
A/SLMR NO. 250
THE SUBJECT CASE INVOLVES (1) AN RA PETITION FILED BY THE ACTIVITY
SEEKING AN ELECTION IN A UNIT CURRENTLY REPRESENTED EXCLUSIVELY BY LOCAL
1300, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT (NFFE) ON
THE GROUNDS THAT IT HAS A GOOD FAITH DOUBT AS TO THE NFFE'S CONTINUING
MAJORITY STATUS, AND (2) A PETITION FOR CLARIFICATION OF UNIT (CU) FILED
BY THE NFFE SEEKING TO REFLECT A CHANGE IN THE DESIGNATION OF THE
ACTIVITY RESULTING FROM A REORGANIZATION OF THE ACTIVITY'S OPERATIONS.
THE NFFE AGREED THAT THE UNIT INVOLVED WAS APPROPRIATE BUT CONTENDED
THAT THE RA PETITION SHOULD BE DISMISSED BECAUSE THE ACTIVITY DID NOT
HAVE SUFFICIENT GROUNDS TO SUPPORT A GOOD FAITH DOUBT AS TO ITS MAJORITY
STATUS. BOTH PARTIES STIPULATED TO THE PROPOSED CHANGE IN THE
ACTIVITY'S DESIGNATION.
REGARDING THE RA PETITION, THE ASSISTANT SECRETARY DETERMINED THAT
BECAUSE SECTION 202.2(B) OF THE ASSISTANT SECRETARY'S REGULATIONS, WHICH
WAS IN EFFECT AT THE TIME THE RA PETITION WAS FILED, PROVIDED THAT AN
AGENCY OR ACTIVITY MAY PETITION FOR AND OBTAIN AN ELECTION TO DETERMINE
IF A LABOR ORGANIZATION SHOULD CEASE TO BE THE EXCLUSIVE REPRESENTATIVE
OF ITS EMPLOYEES WHERE THE AGENCY OR ACTIVITY HAS A GOOD FAITH DOUBT
THAT SUCH LABOR ORGANIZATION REPRESENTS A MAJORITY OF THE EMPLOYEES IN
THE UNIT, THE ISSUE AS TO WHETHER AN ELECTION SHOULD BE HELD IN THE
SUBJECT CASE WAS DEPENDENT UPON AN EVALUATION OF THE EVIDENCE PRESENTED
IN SUPPORT OF THE ACTIVITY'S ALLEGED GOOD FAITH DOUBT AS TO THE NFFE'S
MAJORITY STATUS IN THE UNIT. THE ASSISTANT SECRETARY DETERMINED THAT AN
EVALUATION OF THE EVIDENCE IN THE SUBJECT CASE ESTABLISHED THAT THE
ACTIVITY HAD A GOOD FAITH DOUBT AS TO THE NFFE'S CONTINUED MAJORITY
STATUS. IN THIS REGARD, THE ASSISTANT SECRETARY NOTED THAT THERE WERE
NO EMPLOYEES ON CHECK-OFF; THE NFFE HAD PROCESSED ONLY ONE GRIEVANCE
AFTER IT ACHIEVED RECOGNITION; THERE WERE ONLY FOUR UNIT EMPLOYEES
CURRENTLY EMPLOYED WHO WERE EMPLOYED AT THE TIME THE NFFE ACHIEVED ITS
STATUS AS EXCLUSIVE BARGAINING REPRESENTATIVE; AND A UNIT EMPLOYEE, WHO
WAS A VICE-PRESIDENT OF THE NFFE AND WHO HAD BEEN DESIGNATED BY THE NFFE
AS ITS OFFICIAL REPRESENTATIVE IN THE UNIT, ADVISED THE ACTIVITY PRIOR
TO THE HEARING THAT HE DID NOT KNOW IF THE NFFE WAS STILL THE BARGAINING
AGENT FOR THE UNIT EMPLOYEES. THE ASSISTANT SECRETARY FURTHER NOTED
THAT THE NFFE'S REPRESENTATIVE CONCEDED AT THE HEARING IN THIS MATTER
THAT BECAUSE OF PERSONNEL CHANGES WHICH RESULTED FROM THE REORGANIZATION
OF THE ACTIVITY'S OPERATIONS, HE WAS UNCERTAIN AS TO WHETHER THE NFFE
REPRESENTED A MAJORITY OF EMPLOYEES IN THE UNIT AFTER THE
REORGANIZATION. UNDER ALL OF THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY DIRECTED AN ELECTION IN THE APPROPRIATE UNIT.
REGARDING THE CU PETITION, NOTING THE AGREEMENT OF THE PARTIES AND
THE ABSENCE OF ANY EVIDENCE THAT SUCH AGREEMENT WAS INCONSISTENT WITH
THE PURPOSES AND POLICIES OF THE ORDER, THE ASSISTANT SECRETARY ISSUED
AN ORDER CLARIFYING THE UNIT TO REFLECT THE CURRENT DESIGNATION OF THE
ACTIVITY. IN HIS DECISION, THE ASSISTANT SECRETARY NOTED THAT UNDER THE
CURRENT REGULATIONS A PETITION FOR AMENDMENT OF RECOGNITION OR
CERTIFICATION, RATHER THAN A CU PETITION, IS THE APPROPRIATE VEHICLE FOR
SEEKING A CHANGE IN THE DESIGNATION OF AN ACTIVITY.
FEDERAL AVIATION ADMINISTRATION,
GREAT LAKES REGION,
CHICAGO AIRPORTS DISTRICT OFFICE
AND
LOCAL 1300, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT
FEDERAL AVIATION ADMINISTRATION,
GREAT LAKES REGION,
CHICAGO AIRPORTS DISTRICT OFFICE
AND
LOCAL 1300, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, INDEPENDENT
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER J. EDWARD KASEN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY-PETITIONER IN CASE NO. 50-5522 FILED AN RA PETITION
SEEKING AN ELECTION IN A UNIT CONSISTING OF ALL OF ITS PROFESSIONAL
ENGINEERS, EXCLUDING NONPROFESSIONAL EMPLOYEES, CLERICALS, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /2/ THIS UNIT CURRENTLY IS REPRESENTED ON AN EXCLUSIVE BASIS BY
LOCAL 1300, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT,
HEREIN CALLED NFFE. THE ACTIVITY CONTENDS THAT AN ELECTION SHOULD BE
CONDUCTED BECAUSE IT HAS A GOOD FAITH DOUBT THAT THE NFFE CURRENTLY
REPRESENTS A MAJORITY OF THE EMPLOYEES IN THE APPROPRIATE UNIT. /3/ THE
NFFE AGREES THAT THE UNIT INVOLVED HEREIN IS APPROPRIATE BUT CONTENDS
THAT THE RA PETITION SHOULD BE DISMISSED BECAUSE THE ACTIVITY DOES NOT
HAVE SUFFICIENT GROUNDS TO SUPPORT A GOOD FAITH DOUBT AS TO THE NFFE'S
MAJORITY STATUS.
IN CASE NO.50-5529, THE NFFE FILED A PETITION FOR CLARIFICATION OF
UNIT (CU) SEEKING TO REFLECT A CHANGE IN THE DESIGNATION OF THE ACTIVITY
WHICH RESULTED FROM A REORGANIZATION OF THE ACTIVITY'S OPERATIONS. IN
THIS CONNECTION, AT THE HEARING THE ACTIVITY AGREED WITH THE NFFE'S
POSITION CONCERNING THE PROPOSED CHANGE IN THE FORMER'S DESIGNATION.
/4/
THE FEDERAL AVIATION ADMINISTRATION (FAA), WHICH IS ENGAGED IN
PROVIDING FOR THE SAFE AND EXPEDITIOUS FLOW OF AIR TRAFFIC, ACCORDED THE
NFFE RECOGNITION AS EXCLUSIVE BARGAINING AGENT OF THE EMPLOYEES IN THE
UNIT INVOLVED HEREIN ON NOVEMBER 2, 1969, AS THE RESULT OF A
REPRESENTATION ELECTION HELD UNDER EXECUTIVE ORDER 10988. AT THE TIME
OF THE ELECTION, THE FAA WAS DIVIDED INTO FIVE REGIONS WHICH, IN TURN,
WERE DIVIDED INTO GEOGRAPHIC SUBDIVISIONS ADMINISTERED BY AREA OFFICES.
EACH AREA OFFICE WAS RESPONSIBLE FOR ALL OF THE FAA ACTIVITIES WITHIN
THE AREA UNDER ITS JURISDICTION. THE AREA OFFICES ADMINISTERED A NUMBER
OF BRANCH OFFICES, EACH OF WHICH WAS RESPONSIBLE FOR ADMINISTERING A
PARTICULAR FACET OF FAA ACTIVITIES WITHIN A SPECIFIC GEOGRAPHIC AREA.
THE CHICAGO AIRPORTS BRANCH OFFICE, THE OFFICE IN WHICH THE EMPLOYEES
INVOLVED HEREIN WERE EMPLOYED, FORMERLY WAS UNDER THE JURISDICTION OF
THE CHICAGO AREA OFFICE WHICH WAS A SUBDIVISION OF THE FAA'S CENTRAL
REGION. ON APRIL 1, 1971, THE FAA EFFECTUATED A REORGANIZATION PLAN
WHICH INCREASED THE NUMBER OF REGIONS FROM FIVE TO NINE AND ABOLISHED
THE AREA OFFICES. ONE OF THE NEW REGIONS CREATED BY THE REORGANIZATION
WAS THE GREAT LAKES REGION. DURING THE REORGANIZATION, WHICH WAS
COMPLETED ON OR ABOUT AUGUST 1, 1971, THE CHICAGO AIRPORTS BRANCH OFFICE
BECAME A DISTRICT OFFICE OF THE GREAT LAKES REGION, AND IT WAS RENAMED
THE CHICAGO AIRPORTS DISTRICT OFFICE. /5/ THE RECORD REFLECTS THAT THE
REORGANIZATION DID NOT AFFECT SIGNIFICANTLY THE MISSION OF THIS OFFICE.
NOR DID IT AFFECT THE DUTIES AND RESPONSIBILITIES OF THE UNIT EMPLOYEES
EMPLOYED THEREIN. AS NOTED ABOVE, THE PARTIES STIPULATED THAT THE
EXCLUSIVE BARGAINING UNIT REMAINED INTACT AFTER THE REORGANIZATION AND
THAT SUCH UNIT CONTINUES TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER.
THE EVIDENCE ESTABLISHES THAT THE REORGANIZATION RESULTED IN A
DECREASE IN THE NUMBER OF EMPLOYEES IN THE UNIT FROM APPROXIMATELY 16 TO
11. OF THE 11 EMPLOYEES WHO WERE IN THE UNIT IMMEDIATELY AFTER THE
REORGANIZATION WAS EFFECTUATED, 6 HAD BEEN IN THE UNIT PRIOR TO THE
REORGANIZATION AND 5 WERE TRANSFERRED INTO THE UNIT FROM OTHER
POSITIONS. /6/ CURRENTLY, THERE ARE ONLY FOUR EMPLOYEES IN THE UNIT WHO
WERE EMPLOYED AT THE TIME THE REPRESENTATION ELECTION WAS HELD UNDER
EXECUTIVE ORDER 10988. FURTHER, THE RECORD REVEALS THAT A UNIT
EMPLOYEE-- WHO WAS A VICE PRESIDENT OF THE NFFE AND WHO HAD BEEN
DESIGNATED BY THE NFFE AS ITS OFFICIAL REPRESENTATIVE IN THE UNIT--
ADVISED THE ACTIVITY APPROXIMATELY EIGHT MONTHS PRIOR TO THE HEARING IN
THIS MATTER, BUT SUBSEQUENT TO THE FILING OF THE ACTIVITY'S RA PETITION,
THAT HE DID NOT KNOW IF THE NFFE WAS STILL THE BARGAINING AGENT FOR THE
UNIT EMPLOYEES, AND THAT, IN ANY EVENT, HE NO LONGER BELIEVED THERE WAS
A NEED FOR THE NFFE'S REPRESENTATION IN THE UNIT. IN THIS CONNECTION,
THE EVIDENCE ESTABLISHES THAT THE LAST UNIT EMPLOYEE ON CHECK-OFF
REVOKED HIS CHECK-OFF AUTHORIZATION FOR THE NFFE PRIOR TO APRIL 1, 1971,
AND THAT THE NFFE PROCESSED ONLY ONE GRIEVANCE SINCE IT BECAME THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF THE UNIT EMPLOYEES IN 1969.
MOREOVER, WHILE THE NFFE CONTENDS, AMONG OTHER THINGS, THAT IT
REPRESENTED A MAJORITY OF THE UNIT EMPLOYEES PRIOR TO APRIL 1971, AS
WELL AS AT THE TIME THE RA PETITION HEREIN WAS FILED ON SEPTEMBER 13,
1971, AT THE HEARING THE NFFE'S REPRESENTATIVE CONCEDED THAT THE NFFE
WAS UNCERTAIN AS TO WHETHER IT REPRESENTED A MAJORITY OF THE UNIT
EMPLOYEES AFTER THE EFFECTUATION OF THE REORGANIZATION BECAUSE OF THE
CHANGES IN THE PERSONNEL IN THE UNIT. THE NFFE'S REPRESENTATIVE STATED
FURTHER THAT THE NFFE DID NOT HAVE MORE THAN TWO OR THREE MEMBERS IN THE
UNIT SUBSEQUENT TO THE REORGANIZATION AND THAT IT WAS NOT AWARE AS TO
WHETHER IT HAD ANY OTHER SUPPORTERS.
UNDER SECTION 202.2(B) OF THE ASSISTANT SECRETARY'S REGULATIONS, IN
EFFECT AT THE TIME THE RA PETITION HEREIN WAS FILED, AN AGENCY OR
ACTIVITY MAY PETITION FOR AND OBTAIN AN ELECTION TO DETERMINE IF A LABOR
ORGANIZATION SHOULD CEASE TO BE THE EXCLUSIVE REPRESENTATIVE WHERE THE
AGENCY OR ACTIVITY HAS A GOOD FAITH DOUBT THAT THE CURRENTLY RECOGNIZED
OR CERTIFIED LABOR ORGANIZATION REPRESENTS A MAJORITY OF THE EMPLOYEES
IN THE UNIT. THEREFORE, WHETHER OR NOT AN ELECTION MAY BE HELD IN THE
SUBJECT CASE IS DEPENDENT UPON AN EVALUATION OF THE EVIDENCE IN SUPPORT
OF THE ACTIVITY'S ALLEGED GOOD FAITH DOUBT AS TO THE NFFE'S MAJORITY
STATUS IN THE UNIT. /7/
UNDER THE CIRCUMSTANCES SET FORTH ABOVE, I FIND THAT THE ACTIVITY HAD
A GOOD FAITH DOUBT WITH RESPECT TO THE NFFE'S CONTINUED MAJORITY STATUS
IN THE UNIT AND THAT, THEREFORE, AN ELECTION IS WARRANTED IN THIS
MATTER. IN THIS REGARD, PARTICULAR NOTE IS TAKEN OF THE FACTS THAT
THERE ARE NO UNIT EMPLOYEES CURRENTLY ON CHECK-OFF; THAT THE NFFE
PROCESSED ONLY ONE GRIEVANCE AFTER IT ACHIEVED RECOGNITION IN 1969;
THAT THERE ARE ONLY FOUR UNIT EMPLOYEES CURRENTLY EMPLOYED WHO WERE
EMPLOYED AT THE TIME THE REPRESENTATION ELECTION WAS HELD UNDER
EXECUTIVE ORDER 10988; AND THAT A UNIT EMPLOYEE, WHO WAS A
VICE-PRESIDENT OF THE NFFE AND WHO HAD BEEN DESIGNATED BY THE NFFE AS
ITS OFFICIAL REPRESENTATIVE IN THE UNIT, ADVISED THE ACTIVITY PRIOR TO
THE HEARING IN THIS MATTER THAT HE DID NOT KNOW IF THE NFFE WAS STILL
THE BARGAINING AGENT FOR THE UNIT EMPLOYEES. IT IS NOTED FURTHER THAT
AT THE HEARING IN THIS MATTER, THE NFFE'S REPRESENTATIVE CONCEDED THAT
BECAUSE OF PERSONNEL CHANGES IN THE UNIT RESULTING FROM THE
REORGANIZATION, HE WAS UNCERTAIN AS TO WHETHER THE NFFE REPRESENTED A
MAJORITY OF THE EMPLOYEES IN THE UNIT AFTER THE REORGANIZATION.
I FIND THAT, WHEN VIEWED IN THEIR TOTALITY, THE CIRCUMSTANCES NOTED
ABOVE ARE SUFFICIENT TO SUPPORT A GOOD FAITH DOUBT BY THE ACTIVITY AS TO
THE NFFE'S MAJORITY STATUS AND THAT IT WILL EFFECTUATE POLICIES AND
PURPOSES OF THE EXECUTIVE ORDER TO ACCORD THE UNIT EMPLOYEES AN
OPPORTUNITY TO EXPRESS THEIR DESIRES WITH RESPECT TO CONTINUED EXCLUSIVE
REPRESENTATION. ACCORDINGLY, I SHALL DIRECT AN ELECTION IN THE
APPROPRIATE UNIT. FURTHER, IN ACCORD WITH THE AGREEMENT OF THE PARTIES,
AND IN THE ABSENCE OF ANY EVIDENCE THAT SUCH AGREEMENT IS INCONSISTENT
WITH THE PURPOSES AND POLICIES OF THE ORDER, I SHALL ORDER THAT THE UNIT
HEREIN BE CLARIFIED TO REFLECT THE CURRENT DESIGNATION OF THE ACTIVITY.
IT IS HEREBY ORDERED THAT THE UNIT FOR WHICH RECOGNITION WAS GRANTED
UNDER EXECUTIVE ORDER 10988 IN BEHALF OF LOCAL 1300, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, INDEPENDENT, BE, AND IT HEREBY IS, CLARIFIED BY
CHANGING THE DESIGNATION OF THE ACTIVITY FROM THE CHICAGO AIRPORTS
BRANCH OFFICE TO THE CHICAGO AIRPORTS DISTRICT OFFICE.
BASED ON THE FOREGOING, I FIND THE FOLLOWING EMPLOYEES OF THE
ACTIVITY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491:
ALL PROFESSIONAL ENGINEERS OF THE FEDERAL AVIATION ADMINISTRATION,
GREAT LAKES REGION, CHICAGO AIRPORTS DISTRICT OFFICE, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, CLERICALS, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER. /8/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY LOCAL 1300,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT.
DATED, WASHINGTON, D.C.
MARCH 2, 1973
/1/ THE NAME OF THE ACTIVITY-PETITIONER APPEARS AS AMENDED AT THE
HEARING.
/2/ THE UNIT APPEARS AS AMENDED AT THE HEARING. THE RECORD REVEALS
THAT THE UNIT CONSISTS OF CIVIL ENGINEERS WHO ARE ENGAGED IN PROVIDING
EXPERT ADVICE AND ASSISTANCE TO THE AVIATION INDUSTRY AND THE GENERAL
PUBLIC ON AIRPORT DESIGN AND CONSTRUCTION UNDER FEDERAL AIRPORT AND
DEVELOPMENT PROGRAMS.
/3/ INITIALLY, THE ACTIVITY CONTENDED THE UNIT INVOLVED HEREIN HAD
BEEN ABOLISHED AS A RESULT OF A REORGANIZATION. HOWEVER, AT THE
HEARING, THE PARTIES STIPULATED THAT THE PREVIOUSLY RECOGNIZED UNIT
REMAINED IN EXISTENCE AFTER THE REORGANIZATION AND THAT SUCH UNIT IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/4/ AT THE TIME THE NFFE FILED ITS PETITION IT ALSO SOUGHT A FINDING
THAT THE UNIT HEREIN HAD NOT BEEN ABOLISHED AS A RESULT OF THE
ACTIVITY'S REORGANIZATION. IN VIEW OF THE PARTIES' STIPULATION AT THE
HEARING THAT THE UNIT HAD NOT BEEN ABOLISHED, I FIND THAT THIS MATTER
WAS RENDERED MOOT. FURTHER, IT SHOULD BE NOTED THAT UNDER THE ASSISTANT
SECRETARY'S CURRENT REGULATIONS A PETITION FOR AMENDMENT OF RECOGNITION
OR CERTIFICATION, RATHER THAN A CU PETITION, IS THE APPROPRIATE VEHICLE
FOR SEEKING A CHANGE IN THE DESIGNATION OF AN ACTIVITY.
/5/ THE CHICAGO AIRPORTS DISTRICT OFFICE IS ONE OF FOUR SUCH DISTRICT
OFFICES WITHIN THE GREAT LAKES REGION.
/6/ THE EMPLOYEES WHO WERE REMOVED FROM THE UNIT WERE GIVEN OTHER
ASSIGNMENTS IN THE REGION, INCLUDING ASSIGNMENTS TO THE REGIONAL
HEADQUARTERS AND OTHER DISTRICT OFFICES.
/7/ CF. HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST.
LOUIS, MISSOURI, A/SLMR NO. 160.
/8/ THE PARTIES STIPULATED AND THE RECORD SUPPORTS THAT EMPLOYEES IN
THE APPROPRIATE UNIT ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF
THE ORDER.
3 A/SLMR 249; P. 119; CASE NO. 50-5598(25); FEBRUARY 14, 1973.
UNITED STATES DEPARTMENT OF
AGRICULTURE, ANIMAL AND PLANT
HEALTH INSPECTION SERVICE,
VETERINARY SERVICES-ANIMAL
HEALTH PROGRAM,
MADISON, WISCONSIN
A/SLMR NO. 249
THE PETITIONER, LOCAL 3289, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), SOUGHT AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY LIVESTOCK INSPECTORS EMPLOYED BY THE UNITED STATES
DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE IN
THE STATE OF WISCONSIN. THE ACTIVITY AGREED WITH THE AFGE THAT THE UNIT
SOUGHT WAS APPROPRIATE AS THE EMPLOYEES IN THE UNIT CLAIMED HAVE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND APART FROM OTHER
EMPLOYEES OF THE ACTIVITY. IT CONTENDED ALSO THAT THE ESTABLISHMENT OF
SUCH A UNIT WOULD BE CONSISTENT WITH THE AGENCY'S PRACTICE OF
RECOGNIZING BARGAINING UNITS ALONG FUNCTIONAL LINES WHERE THE EMPLOYEES
ARE DISPERSED GEOGRAPHICALLY AND ARE EXPECTED TO PERFORM THEIR DUTIES IN
A RELATIVELY INDEPENDENT MANNER.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE AFGE WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
HE NOTED THAT THE LIVESTOCK INSPECTORS ARE DISPERSED THROUGHOUT THE
STATE OF WISCONSIN, EACH TO AN ASSIGNED TERRITORY, AND THAT THEY HAVE
MINIMAL CONTACT WITH THE OTHER EMPLOYEES OF THE WISCONSIN DIVISION OF
ANIMAL HEALTH. FURTHER, THEY POSSESS SPECIALIZED AND TECHNICAL SKILLS
DIFFERENT FROM THOSE OF OTHER ACTIVITY EMPLOYEES; NO PROGRESSION EXISTS
FROM ANY OF THE OTHER JOB CLASSIFICATIONS TO THAT OF LIVESTOCK
INSPECTORS AND VICE VERSA; AND LIVESTOCK INSPECTORS HAVE WORKING
CONDITIONS THAT ARE DIFFERENT FROM THE OTHER EMPLOYEES IN THE ACTIVITY.
UNDER THESE CIRCUMSTANCES AND NOTING THAT SECTION 10(B) PERMITS THE
ESTABLISHMENT OF A UNIT ON A FUNCTIONAL BASIS AND THAT THE ACTIVITY AND
THE AFGE AGREED AS TO THE APPROPRIATENESS OF THE UNIT SOUGHT, THE
ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE CLAIMED UNIT.
UNITED STATES DEPARTMENT OF
AGRICULTURE, ANIMAL AND PLANT
HEALTH INSPECTION SERVICE,
VETERINARY SERVICES-ANIMAL
HEALTH PROGRAM,
MADISON, WISCONSIN /1/
AND
LOCAL 3289, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER STEPHEN F.
JEROUTEK. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING A BRIEF SUBMITTED BY
THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, LOCAL 3289, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, SEEKS A UNIT COMPOSED OF ALL
NONSUPERVISORY LIVESTOCK INSPECTORS EMPLOYED BY THE UNITED STATES
DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE IN
THE STATE OF WISCONSIN, EXCLUDING SUPERVISORS, PROFESSIONALS, MANAGEMENT
OFFICIALS, GUARDS, LABORATORY TECHNICIANS, CLERICAL EMPLOYEES AND
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY. /2/ THE ACTIVITY AGREES WITH THE AFGE THAT THE UNIT
SOUGHT IS APPROPRIATE. IT TAKES THE POSITION THAT EMPLOYEES IN THE
CLAIMED UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND APART FROM OTHER EMPLOYEES OF THE ACTIVITY AND THAT THE
ESTABLISHMENT OF SUCH A UNIT WOULD BE CONSISTENT WITH THE AGENCY'S
PRACTICE OF RECOGNIZING BARGAINING UNITS ALONG FUNCTIONAL LINES WHERE
THE EMPLOYEES ARE DISPERSED GEOGRAPHICALLY AND ARE EXPECTED TO PERFORM
THEIR DUTIES IN A RELATIVELY INDEPENDENT MANNER. THE ACTIVITY ASSERTS
FURTHER THAT THE FUNCTIONAL UNIT PETITIONED FOR HEREIN WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE MISSION OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, ANIMAL
AND PLANT HEALTH INSPECTION SERVICE (APHIS) IS THE PREVENTION,
ERADICATION AND CONTROL OF ANIMAL AND PLANT DISEASES. INCLUDED AMONG
ITS FUNCTIONS IS THE INSPECTION OF MEAT AND POULTRY PRIOR TO THEIR SALE
TO THE CONSUMER. APHIS ALSO ADMINISTERS FEDERAL ANIMAL AND PLANT HEALTH
PROGRAMS IN COOPERATION WITH STATE GOVERNMENTS.
OVERALL ADMINISTRATION AND MANAGEMENT OF APHIS IS VESTED IN AN
ADMINISTRATOR LOCATED IN A HEADQUARTERS FACILITY IN WASHINGTON, D.C.
REPORTING TO THE ADMINISTRATOR AT THE HEADQUARTERS LEVEL IS THE
ASSOCIATE ADMINISTRATOR FOR ANIMAL AND PLANT HEALTH PROGRAMS, WHO HAS
RESPONSIBILITY FOR ADMINISTRATION OF THE VETERINARY SERVICES PROGRAM AND
THE PLANT PROTECTION AND QUARANTINE PROGRAM. IN ORDER TO ADMINISTER THE
ANIMAL HEALTH PROGRAMS, WHICH CONSTITUTE A SUBDIVISION WITHIN THE
VETERINARY SERVICES PROGRAM, THE FOLLOWING 4 REGIONS HAVE BEEN
ESTABLISHED ALONG GEOGRAPHIC LINES: NORTHEASTERN, NORTH CENTRAL,
SOUTHEASTERN AND WESTERN. THE MISSION OF EACH REGION IS TO PROVIDE
LEADERSHIP AND COORDINATION WITHIN THE REGIONAL AREA INVOLVED IN REGARD
TO THE PROTECTION OF THE HEALTH OF LIVESTOCK AND POULTRY. THE REGIONS
ARE UNDER THE SUPERVISION OF REGIONAL DIRECTORS, ALL OF WHOM ARE LOCATED
IN HYATTSVILLE, MARYLAND. IN THIS REGARD, THE RECORD REVEALS THAT THE
REGIONAL DIRECTORS ARE CONCERNED PRIMARILY WITH MEETING OVERALL GOALS
AND OBJECTIVES OF THE PROGRAM RATHER THAN WITH THE DAY-TO-DAY OPERATION
OF PARTICULAR PROGRAMS WITHIN A PARTICULAR REGION.
WISCONSIN IS ONE OF THE 13 STATES WHICH COMPRISE THE NORTH CENTRAL
REGION. THE ANIMAL HEALTH PROGRAM IN WISCONSIN IS A JOINT STATE-FEDERAL
PROGRAM AND IS LOCATED IN THE DIVISION OF ANIMAL HEALTH OF THE WISCONSIN
ANIMAL HEALTH PROGRAM. THE DIVISION IS HEADED BY AN ADMINISTRATOR,
ASSISTED BY AN ASSOCIATE ADMINISTRATOR, BOTH OF WHOM ARE EMPLOYED
JOINTLY BY THE WISCONSIN DEPARTMENT OF AGRICULTURE AND THE UNITED STATES
DEPARTMENT OF AGRICULTURE. IT IS MADE UP OF THREE BASIC ENTITIES: THE
BUREAU OF FIELD SERVICES, THE BUREAU OF ADMINISTRATIVE SERVICES, AND THE
BUREAU OF TECHNICAL SERVICES.
THE EVIDENCE ESTABLISHES THAT THE BUREAU OF TECHNICAL SERVICES
INCLUDES LABORATORY TECHNICIANS WHO WORK AT EITHER THE CENTRAL ANIMAL
HEALTH DISEASE LABORATORY IN MADISON, WISCONSIN OR AT THE REGIONAL
ANIMAL HEALTH DISEASE LABORATORY IN BARON, WISCONSIN. THESE EMPLOYEES
PERFORM THE REQUIRED TESTING AND LABORATORY WORK NEEDED TO CARRY OUT THE
FUNCTIONS OF VARIOUS PROGRAMS OF THE DIVISION. WITHIN THE BUREAU OF
TECHNICAL SERVICES, BOTH EMPLOYEES OF THE FEDERAL GOVERNMENT AND THE
WISCONSIN STATE GOVERNMENT WORK SIDE BY SIDE IN THE LABORATORIES. THE
RECORD REVEALS THAT THEIR WORK IS CONFINED ESSENTIALLY TO THE
LABORATORIES.
THE BUREAU OF ADMINISTRATIVE SERVICES CONTAINS CLERICAL EMPLOYEES WHO
ACCOUNT FOR A SUBSTANTIAL PROPORTION OF THE BUREAU'S TOTAL EMPLOYMENT.
THESE EMPLOYEES PERFORM THE CLERICAL WORK REQUIRED BY THE DIVISION AND
ARE EMPLOYED BY EITHER THE STATE OR FEDERAL GOVERNMENT. THEY ARE
RESPONSIBLE FOR, AMONG OTHER THINGS, TYPING THE REPORTS SUBMITTED BY THE
LIVESTOCK INSPECTORS IN THE PETITIONED FOR UNIT.
THE BUREAU OF FIELD SERVICES ENCOMPASSES ALL OF THE DIVISION'S FIELD
EMPLOYEES, INCLUDING LIVESTOCK INSPECTORS AND VETERINARIANS. IT
CONSISTS OF THE BRUCELLOSIS RING TEST UNIT AND THE INVESTIGATION SECTION
CONSISTING OF 3 INVESTIGATION UNITS AND 3 FIELD SECTION UNITS. THE
EMPLOYEES IN THE UNIT PETITIONED FOR IN THE INSTANT CASE ARE EMPLOYED IN
THE INVESTIGATION SECTION.
THE RECORD REVEALS THAT THE CHIEF OF THE INVESTIGATION SECTION IS A
STATE EMPLOYEE WHO FUNCTIONS BASICALLY AS A STAFF OFFICER. HE DEVELOPS
REGULATIONS FROM A STATE STANDPOINT AND WHEN THERE ARE STATE
PROSECUTIONS TO BE MADE, HE SIGNS THE WARRANTS AND FUNCTIONS AS THE
PROSECUTOR IN SUCH CASES. IN PERFORMING HIS JOB FUNCTIONS, HE HAS
LITTLE OR NO DIRECT SUPERVISION OVER THE INVESTIGATORS IN THE FIELD.
THE ASSISTANT CHIEF OF THE INVESTIGATION SECTION, WHO IS A FEDERAL
EMPLOYEE, IS RESPONSIBLE FOR THE PERFORMANCE OF THE STATE AND FEDERAL
LIVESTOCK INSPECTORS EMPLOYED BY THE SECTION. HE MAKES THE WORK
ASSIGNMENTS AND IS RESPONSIBLE FOR CHECKING TO ENSURE THAT SUCH
ASSIGNMENTS ARE COMPLETED SATISFACTORILY. THE LIVESTOCK INSPECTORS
UNDER HIS SUPERVISION ARE ASSIGNED THROUGHOUT THE STATE TO PARTICULAR
GEOGRAPHICAL AREAS. THE RECORD INDICATES THAT ESTABLISHED
QUALIFICATIONS FOR THE JOB OF LIVESTOCK INSPECTOR INCLUDE AT LEAST 3
YEARS EXPERIENCE IN THE HANDLING OR RAISING OF LIVESTOCK OR OTHER
ACTIVITIES WHICH WOULD PROVIDE A BASIC FAMILIARITY WITH LIVESTOCK AND
THEIR DISEASES. LIVESTOCK INSPECTORS ARE CHARGED WITH THE ENFORCEMENT
OF VARIOUS FEDERAL AND STATE LAWS AND REGULATIONS PERTAINING TO ANIMAL
HEALTH. IN THIS CONNECTION, THE INSPECTORS MEET WITH LIVESTOCK DEALERS,
REPRESENTATIVES OF THE LIVESTOCK TRUCKING INDUSTRY, AND ALSO MAKE
INSPECTIONS AT PACKING PLANT ESTABLISHMENTS, LIVESTOCK AUCTIONS AND
MARKETS. IN ADDITION, THEY DEAL WITH INDIVIDUAL FARMERS ON VARIOUS
PROBLEMS CONCERNING LIVESTOCK DISEASES AND THE ILLEGAL MOVEMENT OF
ANIMALS. THE LIVESTOCK INSPECTORS PREPARE WRITTEN REPORTS ON THEIR
VARIOUS CASES WHICH ARE SENT TO THE ASSISTANT CHIEF OF THE INVESTIGATION
SECTION WHO, IN TURN, FORWARDS THEM TO THE CLERICALS IN THE BUREAU OF
ADMINISTRATIVE SERVICES FOR FINAL TYPING. DUE TO THE NATURE OF THEIR
WORK, THE LIVESTOCK INSPECTORS' WORKWEEK CONSISTS OF A "FIRST 40 HOURS"
TOUR OF DUTY, /3/ WHILE CLERICALS AND LABORATORY TECHNICIANS IN THE
OTHER TWO BUREAUS WORK A REGULAR 8-HOUR DAY AND 40-HOUR WEEK. THE
LIVESTOCK INSPECTORS' IRREGULAR WORK SCHEDULE IS REQUIRED BECAUSE THEY
MUST ATTEND SALES AND AUCTIONS WHICH MAY LAST FOR MORE THAN EIGHT HOURS
EACH DAY REQUIRING INSPECTION OF HERDS AT ODD TIMES. THE EVIDENCE
ESTABLISHES THAT THERE IS VIRTUALLY NO INTERCHANGE BETWEEN LIVESTOCK
INSPECTORS IN ONE STATE WITH THOSE OF ANOTHER EXCEPT IN EMERGENCIES WHEN
ALL AVAILABLE INSPECTORS MAY BE SENT TO A SPECIFIC CRISIS AREA.
HOWEVER, WHEN THE PARTICULAR CRISIS INVOLVED IS OVER, THE INSPECTORS
RETURN TO THEIR HOME STATE. EXCEPT AS NOTED ABOVE, THEY HAVE NO CONTACT
WITH THE CLERICALS OF THE BUREAU OF ADMINISTRATIVE SERVICES. /4/ NOR DO
THEY HAVE SIGNIFICANT JOB CONTACTS WITH THE LABORATORY TECHNICIANS OF
THE BUREAU OF TECHNICAL SERVICES. THUS, THE INSPECTORS, FOR THE MOST
PART, DO THEIR OWN LABORATORY WORK ON TEST SAMPLES THEY HAVE TAKEN IN
THE FIELD. WHEN SUCH SAMPLES REQUIRE MORE COMPREHENSIVE TESTING, THE
INSPECTORS CONTACT THE ASSISTANT CHIEF WHO HAS A LABORATORY TECHNICIAN
SENT OUT TO THE FIELD TO PERFORM SUCH TESTING. HOWEVER, THE RECORD
INDICATES THAT THE NEED FOR MORE COMPREHENSIVE TESTING OCCURS ON AN
INFREQUENT BASIS. THE RECORD REVEALS ALSO THAT BECAUSE OF THE
PARTICULAR QUALIFICATIONS REQUIRED FOR A LIVESTOCK INSPECTOR POSITION,
THERE HAS BEEN NO PROGRESSION FROM THE LABORATORY TECHNICIAN OR CLERICAL
POSITIONS INTO THAT OF A LIVESTOCK INSPECTOR OR VICE VERSA.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE AFGE IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
THUS, AS NOTED ABOVE, THE RECORD ESTABLISHES THAT THE LIVESTOCK
INSPECTORS IN THE CLAIMED UNIT ARE DISPERSED THROUGHOUT THE STATE OF
WISCONSIN, EACH TO AN ASSIGNED TERRITORY, AND THAT THEY HAVE A MINIMAL
CONTACT WITH THE OTHER EMPLOYEES OF THE DIVISION OR LIVESTOCK INSPECTORS
IN OTHER STATES. IT REVEALS ALSO THAT THEY POSSESS SPECIALIZED AND
TECHNICAL SKILLS DIFFERENT FROM THOSE OF OTHER ACTIVITY EMPLOYEES, THAT
THERE IS NO PROGRESSION FROM OTHER JOB CLASSIFICATIONS TO THAT OF
LIVESTOCK INSPECTOR AND VICE VERSA, AND THAT THE LIVESTOCK INSPECTORS
HAVE WORKING CONDITIONS WHICH ARE DIFFERENT FROM THE OTHER EMPLOYEES OF
THE ACTIVITY. UNDER THESE CIRCUMSTANCES, AND NOTING THAT SECTION 10(B)
OF THE ORDER PERMITS THE ESTABLISHMENT OF A UNIT ON A FUNCTIONAL BASIS
/5/ AND THE FACT THAT THE ACTIVITY AND THE AFGE AGREE AS TO THE
APPROPRIATENESS OF THE UNIT SOUGHT, I FIND THAT THE EMPLOYEES IN THE
CLAIMED UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND
THAT SUCH UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491, AS AMENDED:
ALL LIVESTOCK INSPECTORS EMPLOYED BY THE UNITED STATES DEPARTMENT OF
AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICE IN THE STATE OF
WISCONSIN, EXCLUDING PROFESSIONAL EMPLOYEES, LABORATORY TECHNICIANS,
CLERICAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY LOCAL 3289, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
DATED, WASHINGTON, D.C.
FEBRUARY 14, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE PROPOSED UNIT APPEARS AS AMENDED AT THE HEARING.
/3/ THUS, DURING THE COURSE OF A WORKWEEK, THEIR DUTY IS ENDED WHEN
THEY HAVE WORKED 40 HOURS WITHOUT REGARD TO THE DAY DURING THE WORKWEEK
IN WHICH THE 40-HOUR LIMIT IS REACHED. FOR EXAMPLE, A LIVESTOCK
INSPECTOR COULD WORK 15 HOURS ON MONDAY, 15 HOURS ON TUESDAY AND 10
HOURS ON WEDNESDAY TO SATISFY HIS 40-HOUR WEEK REQUIREMENT.
/4/ AS NOTED ABOVE, ALTHOUGH THE CLERICALS TYPE THE FINAL DRAFTS OF
THE INSPECTORS' REPORTS, THEY RECEIVE THE ROUGH DRAFTS OF SUCH REPORTS
FROM THE ASSISTANT CHIEF. CONSEQUENTLY, INSPECTORS AND THE CLERICALS DO
NOT HAVE DIRECT JOB CONTACTS.
/5/ CF. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, CENTER FOR
DISEASE CONTROL, ATLANTA, GEORGIA, A/SLMR NO. 132.
3 A/SLMR 248; P. 116; CASE NO. 40-3564(CA-26); FEBRUARY 14, 1973.
U.S. DEPARTMENT OF THE AIR FORCE,
AIR FORCE COMMUNICATIONS SERVICE (AFCS),
2024TH COMMUNICATIONS SQUADRON,
MOODY AIR FORCE BASE, GEORGIA
A/SLMR NO. 248
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY MILDRED H. SPRADLEY, AN EMPLOYEE OF THE RESPONDENT
ACTIVITY. THE COMPLAINANT ALLEGED THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY HARASSING, INTIMIDATING, COERCING,
THREATENING, AND DISCRIMINATING AGAINST HER AND UNFAIRLY CHARGING HER
WITH DERELICTION OF ASSIGNED DUTIES BECAUSE OF HER UNION AFFILIATION.
ALTHOUGH A VIOLATION OF SECTION 19(A)(4) OF THE ORDER WAS NOT ALLEGED
SPECIFICALLY BY THE COMPLAINANT, HER COMPLAINT ALSO ALLEGED
DISCRIMINATION AGAINST HER BY THE RESPONDENT BECAUSE SHE HAD FILED A
COMPLAINT UNDER THE ORDER. UNDER THESE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE CONSIDERED THE COMPLAINT AS INCLUDING A
19(A)(4) ALLEGATION.
UPON COMPLETION OF THE HEARING, THE ADMINISTRATIVE LAW JUDGE ISSUED
HIS REPORT AND RECOMMENDATION DISMISSING THE COMPLAINT IN ITS ENTIRETY.
IN THIS REGARD, HE FOUND NO EVIDENCE THAT THE COMPLAINANT'S ALLEGED
MISTREATMENT WAS PROMPTED BY HER UNION MEMBERSHIP OR ACTIVITIES OR
BECAUSE SHE FILED A COMPLAINT.
UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE EXCEPTIONS
FILED BY THE COMPLAINANT, THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.
ACCORDINGLY, HE ORDERED THAT THE COMPLAINT BE DISMISSED.
U.S. DEPARTMENT OF THE AIR FORCE,
AIR FORCE COMMUNICATIONS SERVICE (AFCS),
2024TH COMMUNICATIONS SQUADRON,
MOODY AIR FORCE BASE, GEORGIA
AND
MILDRED H. SPRADLEY
ON SEPTEMBER 14, 1972, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDINGS, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED TIMELY
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
EXCEPTIONS FILED BY THE COMPLAINANT, I HEREBY ADOPT THE FINDINGS, /1/
CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-3564(CA-26)
BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 14, 1973
/1/ IN REACHING THE DISPOSITION OF THIS MATTER, NO WEIGHT WAS
ACCORDED TO THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE OFFICE HELD
BY THE COMPLAINANT IN THE LOCAL UNION-- I.E., SECRETARY-TREASURER-- "WAS
A MINOR UNION OFFICE NOT LIKELY TO BRING HER INTO CLOSE OR SHARP CONTACT
WITH MANAGEMENT." IN THE CIRCUMSTANCES OF THIS CASE, SUCH FINDING WAS
CONSIDERED TO BE SPECULATIVE AND NOT SUPPORTED BY THE RECORD.
2024TH COMMUNICATIONS SQUADRON
AIR FORCE COMMUNICATIONS SERVICE
MOODY AIR FORCE BASE, GEORGIA
AND
MILDRED H. SPRADLEY
MILDRED SPRADLEY,
PRO SE
CAPTAIN MELL J. LACY,
FOR THE RESPONDENT
BEFORE: MILTON KRAMER, ADMINISTRATIVE LAW JUDGE
THIS CASE WAS INITIATED BY A COMPLAINT DATED JANUARY 10, 1972 AND
FILED JANUARY 11, 1972 BY THE COMPLAINANT UNDER EXECUTIVE ORDER 11491.
IT ALLEGES THAT THE RESPONDENT VIOLATED AND IS VIOLATING SECTIONS
19(A)(1) AND 19(A)(2) OF THE EXECUTIVE ORDER BY HARASSING, INTIMIDATING,
COERCING, THREATENING, AND DISCRIMINATING AGAINST HER IN THE TENURE AND
CONDITIONS OF HER EMPLOYMENT BECAUSE OF HER UNION AFFILIATION AND
BECAUSE SHE FILED A COMPLAINT WITH THE SECRETARY, AND BY UNFAIRLY
CHARGING HER WITH DERELICTION OF ASSIGNED DUTIES. ALTHOUGH THE
COMPLAINT DOES NOT IN TERMS CHARGE A VIOLATION OF SECTION 19(A)(4), THE
BODY OF THE COMPLAINT CHARGES CONDUCT THAT WOULD BE A VIOLATION OF THAT
SUBSECTION AND THE COMPLAINT IS HERE TREATED AS CHARGING A VIOLATION OF
THE THREE SUBSECTIONS.
PURSUANT TO SEC. 203.5 OF THE REGULATIONS UNDER THE EXECUTIVE ORDER
(29 CFR SEC. 203.5), THE AREA ADMINISTRATOR MADE AN INVESTIGATION AND
REPORTED TO THE REGIONAL ADMINISTRATOR. THE REPORT CONSISTED OF COPIES
OF THE ESSENTIAL DOCUMENTS. ON APRIL 21, 1972 THE REGIONAL
ADMINISTRATOR ISSUED A NOTICE OF HEARING TO BE HELD ON JUNE 13, 1972 IN
VALDOSTA, GEORGIA.
THE HEARING WAS HELD ON THE DATE AND AT THE PLACE SPECIFIED IN THE
NOTICE. AT THE HEARING THE COMPLAINANT APPEARED PRO SE. SHE STATED
THAT ANOTHER PERSON WOULD APPEAR LATER ALSO TO REPRESENT HER BUT THAT
OTHER PERSON DID NOT APPEAR. THE ACTIVITY WAS REPRESENTED BY A JUDGE
ADVOCATE. BOTH PARTIES WERE AFFORDED FULL OPPORTUNITY TO ADDUCE
EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, ARGUE ORALLY, AND FILE
BRIEFS. AT THE CONCLUSION OF THE HEARING, JULY 7, 1972 WAS FIXED AS THE
DATE FOR FILING BRIEFS. NEITHER PARTY FILED A BRIEF OR TOOK OTHER
POST-HEARING ACTION.
ON THE BASIS OF THE RECORD, THE DEMEANOR OF THE WITNESSES, AND MY
DETERMINATIONS OF THEIR CREDIBILITY, I MAKE THE FOLLOWING FINDINGS AND
CONCLUSIONS.
THE COMPLAINANT IS AND AT ALL RELEVANT TIMES WAS EMPLOYED BY
RESPONDENT AS A CIVILIAN EMPLOYEE IN GRADE GS-5. IN 1971 THE
INTERNATIONAL BROTHERHOOD OF FIREMAN AND OILERS SOUGHT EXCLUSIVE
REPRESENTATION RIGHTS FOR THE UNIT IN WHICH SHE WAS EMPLOYED. AN
ELECTION WAS HELD ON AUGUST 12, 1971, AND THE VOTE WAS AGAINST EXCLUSIVE
RECOGNITION. THE COMPLAINANT WAS SECRETARY-TREASURER OF THE LOCAL LODGE
OF THE UNION.
THE COMPLAINT CHARGES ACTION BY THE ACTIVITY INIMICAL TO
COMPLAINANT'S INTEREST BECAUSE OF HER UNION MEMBERSHIP AND BECAUSE SHE
FILED A COMPLAINT UNDER THE EXECUTIVE ORDER. IF THE CHARGES HAD BEEN
SUSTAINED, SUCH CONDUCT BY THE ACTIVITY WOULD HAVE BEEN IN VIOLATION OF
SECTIONS 19(A)(1), (2), AND (4) OF THE ORDER.
THE MISCONDUCT THAT COMPLAINANT COMPLAINS OF IS BASED ON
ADMINISTRATIVE ACTIONS TAKEN BY THE ACTIVITY WITH WHICH MRS. SPRADLEY
DISAGREES. SHE COMPLAINS THAT THE ACTIVITY FAILED TO GRADE HER POSITION
IN ACCORDANCE WITH APPROPRIATE STANDARDS AND IN VIOLATION OF THE
CLASSIFICATION ACT. SHE SAYS THAT OTHERS DOING THE SAME WORK SHE DOES
HAVE A HIGHER GRADE, AND THAT SHE SHOULD BE CLASSIFIED AS A FUNDS
MANAGER INSTEAD OF HER CLASSIFICATION AS A FUNDS MANAGEMENT CLERK. MRS.
SPRADLEY'S DISSATISFACTION WITH HER CLASSIFICATION LONG ANTEDATES ANY
EVIDENCE OF UNION ACTIVITY BY HER OR THE UNION. IN 1970 SHE APPEALED
HER CLASSIFICATION TO THE REGIONAL OFFICE OF THE CIVIL SERVICE
COMMISSION. ON JUNE 29, 1970 THAT OFFICE SUSTAINED THE CLASSIFICATION
GIVEN HER BY THE ACTIVITY, AND ON FURTHER APPEAL TO THE WASHINGTON
OFFICE THE COMMISSION ON SEPTEMBER 1, 1970 SUSTAINED THE ACTION OF ITS
REGIONAL OFFICE. I FIND THAT THERE IS NO PERSUASIVE EVIDENCE THAT
RESPONDENT'S CLASSIFICATION WAS MOTIVATED BY UNION CONSIDERATIONS.
ON DECEMBER 6, 1971, THE ACTIVITY ADDRESSED A MEMORANDUM TO HER
ENTITLED "DERELICTION OF ASSIGNED DUTIES". THE ACTIVITY INTIMATES, BUT
DOES NOT OFFER DIRECT AFFIRMATIVE EVIDENCE, THAT SUCH NOMENCLATURE WAS
SIMPLY A MISTAKE AND WAS INTENDED TO BE A "DELINEATION" OF ASSIGNED
DUTIES INSTEAD OF A CHARGE OF DERELICTION. IN FACT, HOWEVER, THE BODY
OF THE MEMORANDUM, UNLIKE THE TITLE, SIMPLY SETS FORTH DUTIES TO BE
PERFORMED BY MRS. SPRADLEY AND DOES NOT DISCUSS DERELICTION IN THE
PERFORMANCE OF DUTIES. THE AUTHOR OF THE MEMORANDUM, LIEUTENANT HETZEL,
WHO WAS ONE OF HER SUPERVISORS, TESTIFIED, AND I FIND, THAT IT WAS NOT
INTENDED AS A REPRIMAND. MRS. SPRADLEY HAD COMPLAINED, AS SHE DID AT
THE HEARING, THAT SHE WAS ASSIGNED AN EXCESSIVE WORK LOAD, AND
LIEUTENANT HETZEL WROTE THE MEMORANDUM TO DETAIL THE APPROXIMATE TIME
MRS. SPRADLEY SHOULD DEVOTE TO HER SEVERAL DUTIES. THAT MEMORANDUM WAS
NEVER PLACED IN HER PERSONNEL FILE AND AFTER SHE FILED THE COMPLAINT WAS
REMOVED FROM THE FILES OF THE SQUADRON IN AN EFFORT TO SATISFY HER
COMPLAINT.
AFTER THE COMPLAINT WAS FILED, THE RESPONDENT WAS GIVEN A NOTICE OF
REDUCTION IN FORCE, THE ABOLITION OF HER POSITION, AND AN OFFER OF A
LOWER-PAID POSITION. THIS NOTICE WAS CANCELLED THE NEXT DAY. MRS.
SPRADLEY SAYS THIS RIF NOTICE WAS GIVEN HER IN RETALIATION FOR FILING
THE COMPLAINT, BUT SHE DID NOT AMEND HER COMPLAINT TO CHARGE THIS
MISCONDUCT. THE RIF NOTICE WAS ADDRESSED TO 33 SQUADRONS. THE ACTIVITY
DENIES THAT THERE WAS ANY RELATIONSHIP BETWEEN THE NOTICE AND HER FILING
OF THE COMPLAINT, AND I FIND THAT THERE IS NO BASIS FOR IMPUTING THE
NOTICE TO THE FILING OF THE COMPLAINT EVEN ASSUMING THE COMPLAINT TO BE
AMENDED TO CHARGE THIS MISCONDUCT.
THE RESPONDENT COMPLAINED AT THE HEARING ALSO OF OTHER MISTREATMENT
AND DISCRIMINATION AGAINST HER BECAUSE OF HER SEX AND BECAUSE SHE WAS A
CIVILIAN. SHE SAID THAT CERTAIN JOBS WERE GIVEN ONLY TO MILITARY
PERSONNEL, AND THAT SHE WAS NOT THE ONLY CIVILIAN WHO WAS MISTREATED.
SHE COMPLAINED ALSO THAT OTHERS, ESPECIALLY MILITARY PERSONNEL, WERE
GIVEN CREDIT FOR WORK SHE HAD DONE. SUCH MISCONDUCT OF THE ACTIVITY, IF
PROVEN, MIGHT BE REMEDIABLE WRONGS, BUT THEY WERE NOT CHARGED IN THE
COMPLAINT AND EVEN IF THEY WERE THEY WOULD NOT BE REMEDIABLE UNDER
EXECUTIVE ORDER 11491.
THROUGHOUT THE HEARING MRS. SPRADLEY KEPT SAYING THAT SHE FELT THAT
THESE VARIOUS MISTREATMENTS WERE INFLICTED ON HER BECAUSE OF HER UNION
MEMBERSHIP, THAT SHE WAS SURE THAT WAS THE REASON, THAT IT WAS DIFFICULT
TO BELIEVE THAT THAT WAS NOT THE REASON, THAT THERE HAD TO BE A REASON
FOR SUCH MISTREATMENT AND SHE COULD THINK OF NO OTHER, AND THE LIKE.
SUCH STATEMENTS ARE NOT EVIDENCE OF VIOLATIONS OF THE EXECUTIVE
ORDER. THERE WAS NO EVIDENCE THAT HER MISTREATMENT, IF IT WAS SUCH, WAS
PROMPTED BY HER UNION MEMBERSHIP OR ACTIVITIES. THERE WAS NO EVIDENCE
OF WHAT HER UNION ACTIVITIES WERE OTHER THAN THAT SHE WAS
SECRETARY-TREASURER OF A LOCAL LODGE THAT WAS UNSUCCESSFUL IN ITS
EFFORTS TO BECOME THE REPRESENTATIVE OF THE UNIT IN WHICH SHE WAS
EMPLOYED. THIS WAS MINOR UNION OFFICE NOT LIKELY TO BRING HER INTO
CLOSE OR SHARP CONTACT WITH MANAGEMENT. THERE WAS NO DIRECT EVIDENCE
THAT THE CONDUCT OF WHICH SHE COMPLAINED WAS MOTIVATED BY HER UNION
MEMBERSHIP OR OFFICE. THERE WAS NO EVIDENCE, DIRECT OR INDIRECT, THAT
OTHER UNION OFFICERS OR MEMBERS WERE MISTREATED. SHE DID SAY THAT OTHER
CIVILIANS WERE MISTREATED, BUT THAT WAS ONLY A STATEMENT OF CONCLUSION
AND ALSO IRRELEVANT. THERE WAS NO EVIDENCE THAT SHE WAS TREATED WELL
BEFORE HER UNION MEMBERSHIP AND BADLY AFTER HER UNION MEMBERSHIP. IN
SHORT, THERE WAS NO EVIDENCE, OTHER THAN MRS. SPRADLEY'S FEELINGS AND
HER INABILITY TO THINK OF ANOTHER REASON, TO SHOW THAT THE ACTIVITY'S
TREATMENT OF HER, ASSUMING IT TO HAVE BEEN IMPROPER, WAS CAUSED EVEN IN
PART BY HER UNION MEMBERSHIP OR ACTIVITIES. THAT IS NOT ENOUGH. OF
COURSE, I MAKE NO DETERMINATIONS OF WHETHER HER TREATMENT WAS PROPER OR
IMPROPER; SUCH CONCLUSIONS WOULD BE RELEVANT ONLY IF THE CONDUCT WAS
MOTIVATED BY HER UNION MEMBERSHIP OR ACTIVITIES OR BY HER HAVING FILED A
COMPLAINT.
SECTION 203.14 OF THE REGULATIONS IMPOSES ON THE COMPLAINANT THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE. THAT BURDEN HAS NOT BEEN SUSTAINED.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED FOR FAILURE OF PROOF.
SEPTEMBER 14, 1972
3 A/SLMR 247; P. 106; CASE NO. 70-2414(CA); FEBRUARY 13, 1973.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION, SF,
BURLINGAME, CALIFORNIA
A/SLMR NO. 247
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1 (COMPLAINANT) AGAINST
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, SF, BURLINGAME,
CALIFORNIA (RESPONDENT). THE COMPLAINT ALLEGED THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (3) OF THE EXECUTIVE ORDER BY PERMITTING
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2723
(AFGE LOCAL 2723) USE OF RESPONDENT'S FACILITIES TO UNDERTAKE A
MEMBERSHIP SOLICITATION CAMPAIGN AT A TIME WHEN A QUESTION CONCERNING
REPRESENTATION, RESULTING FROM A REPRESENTATION PETITION FILED BY THE
COMPLAINANT SEEKING AN ELECTION AMONG CERTAIN OF RESPONDENT'S EMPLOYEES,
WAS PENDING BEFORE THE ASSISTANT SECRETARY. AFGE LOCAL 2723 HAD NOT
CROSS-PETITIONED OR INTERVENED IN THE COMPLAINANT'S PETITION.
THE COMPLAINANT CONTENDED THAT U.S. DEPARTMENT OF THE INTERIOR,
PACIFIC COAST REGION, GEOLOGICAL SURVEY CENTER, MENLO PARK, CALIFORNIA,
A/SLMR NO. 143 WAS CONTROLLING AND DISPOSITIVE OF THE ISSUES IN THIS
CASE. IN THAT CASE, WHICH INVOLVED OBJECTIONS TO AN ELECTION, THE
ASSISTANT SECRETARY SET ASIDE AN ELECTION IN A SITUATION WHERE A
NON-INTERVENING LABOR ORGANIZATION WAS GIVEN EQUIVALENT STATUS IN
ELECTIONEERING TO THAT ENJOYED BY A PETITIONING LABOR ORGANIZATION. THE
RESPONDENT CONTENDED THAT MENLO PARK WAS NOT APPLICABLE BECAUSE THE
REPRESENTATION PROCEEDING IN THE INSTANT CASE HAD NOT REACHED THE
"ELECTION PHASE," AND THAT, IN ANY EVENT, NO HARM WAS DONE THE
COMPLAINANT IN ALLOWING AFGE LOCAL 2723 TO USE RESPONDENT'S FACILITIES
TO CONDUCT A MEMBERSHIP DRIVE BECAUSE RESPONDENT'S REPRESENTATION
PETITION EVENTUALLY WAS DISMISSED BY THE ASSISTANT SECRETARY IN HIS
DECISION IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), SAN FRANCISCO, A/SLMR NO. 112.
IN HIS REPORT AND RECOMMENDATIONS, THE HEARING EXAMINER CONCLUDED
THAT THE MENLO PARK CASE WAS NOT DISPOSITIVE OF THE ISSUES IN THE
SUBJECT CASE AND RECOMMENDED THAT THE COMPLAINT BE DISMISSED. IN THIS
CONNECTION, THE HEARING EXAMINER CONCLUDED THAT AFGE LOCAL 2723 DID NOT
SECURE ANY SPECIAL ADVANTAGE BY FAILING TO INTERVENE IN THE
REPRESENTATION PROCEEDING AS NO ELECTION EVER WAS HELD, AND THAT THE
FACTS HEREIN PRESENTED A DIFFERENT SITUATION FROM THE MENLO PARK CASE AS
THERE WAS NO ELECTION PENDING IN THE INSTANT CASE. THUS, THE HEARING
EXAMINER FOUND THAT THE COMPLAINANT AND AFGE LOCAL 2723 HAD EQUIVALENT
STATUS AND THE USE OF THE FACILITIES BY THE LATTER DID NOT INURE TO THE
DETRIMENT OF THE COMPLAINANT. ACCORDINGLY, HE RECOMMENDED THAT THE
COMPLAINT BE DISMISSED.
THE ASSISTANT SECRETARY FOUND THAT RESPONDENT'S ACTION DID, IN FACT,
VIOLATE SECTION 19(A)(1) AND (3) OF THE ORDER. HE HELD THAT ALTHOUGH
MENLO PARK INVOLVED OBJECTIONS TO AN ELECTION, THE PRINCIPLES ENUNCIATED
IN THAT CASE WERE APPLICABLE TO THE INSTANT CASE. THUS, IN THE PRESENT
CASE, WHEN THE REPRESENTATION PETITION WAS FILED BY THE COMPLAINANT, A
QUESTION CONCERNING REPRESENTATION WAS, IN EFFECT, RAISED, AND WHEN AFGE
LOCAL 2723 FAILED TO INTERVENE IN THAT PETITION IT COULD NOT BE VIEWED
AS HAVING EQUIVALENT STATUS WITH THE COMPLAINANT WITHIN THE MEANING OF
SECTION 19(A)(3) OF THE ORDER. THE ASSISTANT SECRETARY HELD FURTHER
THAT THE TEST WHETHER THE RESPONDENT'S ASSISTANCE TO AFGE LOCAL 2723,
WHICH DID NOT HAVE EQUIVALENT STATUS WITH COMPLAINANT, VIOLATED THE
ORDER, WAS DEPENDENT UPON WHETHER THERE EXISTED A QUESTION CONCERNING
REPRESENTATION AT THE TIME WHEN THE PERMISSION TO CONDUCT A MEMBERSHIP
SOLICITATION CAMPAIGN WAS GRANTED AND NOT UPON SUBSEQUENT EVENTS. THUS,
THE FACT THAT COMPLAINANT'S PETITION WAS DISMISSED SUBSEQUENTLY WAS NOT
CONSIDERED DETERMINATIVE.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND (3) OF THE
ORDER, THE ASSISTANT SECRETARY ISSUED A REMEDIAL ORDER.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION, SF,
BURLINGAME, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1
ON AUGUST 23, 1972, HEARING EXAMINER WILLIAM NAIMARK ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-TITLED PROCEEDING FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THE SUBJECT CASE, I HEREBY ADOPT THE HEARING EXAMINER'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS TO THE EXTENT CONSISTENT HEREWITH. /1/
THE COMPLAINT IN THE SUBJECT CASE ALLEGES THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (3) OF EXECUTIVE ORDER 11491 BY PERMITTING
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2723,
HEREIN CALLED AFGE LOCAL 2723, USE OF ITS FACILITIES TO UNDERTAKE A
MEMBERSHIP SOLICITATION CAMPAIGN AT A TIME WHEN A QUESTION CONCERNING
REPRESENTATION, RESULTING FROM A REPRESENTATION PETITION FILED BY THE
COMPLAINANT, WHICH SOUGHT AN ELECTION AMONG CERTAIN OF THE RESPONDENT'S
EMPLOYEES, WAS PENDING BEFORE THE ASSISTANT SECRETARY. /2/ IN THIS
REGARD, THE COMPLAINANT ASSERTS THAT THE ASSISTANT SECRETARY'S DECISION
IN THE U.S. DEPARTMENT OF THE INTERIOR, PACIFIC COAST REGION, GEOLOGICAL
SURVEY CENTER, MENLO PARK, CALIFORNIA, A/SLMR NO. 143, IS CONTROLLING
AND DISPOSITIVE OF THE ISSUES IN THIS CASE. /3/
THE RESPONDENT CONTENDS THAT THE ABOVE CITED CASE IS NOT APPLICABLE
UNDER THE CIRCUMSTANCES PRESENT HEREIN IN THAT, AS DISTINGUISHED FROM
THAT CASE, THE REPRESENTATION PROCEEDING IN THE SUBJECT CASE HAD NOT
REACHED THE "ELECTION PHASE." ALSO, THE RESPONDENT ARGUES THAT IN THE
INSTANT CASE THE ASSISTANT SECRETARY ULTIMATELY DISMISSED THE
COMPLAINANT'S REPRESENTATION PETITION /4/ AND THAT, THEREFORE, NO HARM
TO THE COMPLAINANT OCCURRED AS A RESULT OF THE RESPONDENT'S ALLOWING
AFGE LOCAL 2723 TO CONDUCT A MEMBERSHIP DRIVE WHILE A REPRESENTATION
PETITION WAS PENDING. FINALLY, THE RESPONDENT ASSERTS THAT HAD IT NOT
PERMITTED AFGE LOCAL 2723 TO USE ITS FACILITIES TO CONDUCT A MEMBERSHIP
DRIVE, IT WOULD HAVE BEEN SUBJECT TO AN UNFAIR LABOR PRACTICE CHARGE BY
AFGE LOCAL 2723.
THE RECORD REVEALS THAT ON DECEMBER 7, 1970, THE COMPLAINANT FILED A
PETITION SEEKING AN ELECTION AMONG RESPONDENT'S EMPLOYEES WORKING IN
NORTHERN CALIFORNIA. AFGE LOCAL 2723 NEITHER CROSS-PETITIONED FOR ALL,
OR ANY PORTION, OF THE EMPLOYEES COVERED BY THE PETITION. THEREAFTER,
ON JULY 20, 1971, A CONSOLIDATED UNIT DETERMINATION HEARING WAS HELD ON
COMPLAINANT'S REPRESENTATION PETITION AS WELL AS TWO OTHER PETITIONS
INVOLVING EMPLOYEES OF THE RESPONDENT. /5/ ON NOVEMBER 30, 1971, THE
ASSISTANT SECRETARY DISMISSED THE THREE PETITIONS INVOLVED IN THE
CONSOLIDATED UNIT DETERMINATION HEARING, FINDING EACH OF THE PETITIONED
FOR UNITS TO BE INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
/6/
THE RECORD REFLECTS THAT ON JULY 21, 1971, THE DAY AFTER THE UNIT
DETERMINATION HEARING CLOSED, BUT PRIOR TO THE ISSUANCE OF ANY DECISION
BY THE ASSISTANT SECRETARY, THE RESPONDENT WAS CONTACTED BY A NATIONAL
REPRESENTATIVE OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, WHO REQUESTED THAT THE RESPONDENT PERMIT AFGE LOCAL 2723 TO
CONDUCT A MEMBERSHIP DRIVE AT THE ACTIVITY. FOLLOWING THIS REQUEST, THE
RESPONDENT GRANTED THE USE OF CERTAIN OF ITS FACILITIES TO
REPRESENTATIVES OF AFGE LOCAL 2723, INCLUDING PERMITTING THE
DISTRIBUTION OF LITERATURE AT ITS BURLINGAME, CALIFORNIA, FACILITY /7/
IN THE SAME MANNER AND TO THE SAME EXTENT AS HAD BEEN ACCORDED THE
COMPLAINANT PRIOR TO THE FILING OF ITS REPRESENTATION PETITION. ON JULY
26, 1971, THE RESPONDENT ADVISED THE COMPLAINANT OF THIS ACTION. AS A
RESULT, THE COMPLAINANT FILED A CHARGE AGAINST THE RESPONDENT ON JULY
27, 1971, AND, AFTER INFORMAL ATTEMPTS TO SETTLE THE MATTER HAD FAILED,
THE UNFAIR LABOR PRACTICE COMPLAINT IN THE SUBJECT CASE WAS FILED ON
AUGUST 30, 1971.
IN HIS REPORT AND RECOMMENDATIONS, THE HEARING EXAMINER REJECTED THE
COMPLAINANT'S CONTENTION THAT THE DECISION IN U.S. DEPARTMENT OF THE
INTERIOR, PACIFIC COAST REGION, GEOLOGICAL SURVEY CENTER, MENLO PARK,
CALIFORNIA, CITED ABOVE, WAS DISPOSITIVE OF THE SUBJECT CASE. IN HIS
VIEW, THE FAILURE OF AFGE LOCAL 2723 TO INTERVENE IN THE PRIOR
REPRESENTATION PROCEEDINGS DID NOT, IN ITSELF, SECURE ANY SPECIAL
ADVANTAGES FOR AFGE LOCAL 2723 BECAUSE, UNLIKE THE SITUATION IN THE
MENLO PARK CASE, NO ELECTION WAS TO BE HELD IN THIS CASE. WHILE
ACKNOWLEDGING THAT IT WOULD BE UNFAIR TO PERMIT A NON-INTERVENING LABOR
ORGANIZATION TO CAMPAIGN AGAINST A PETITIONING LABOR ORGANIZATION IN AN
"OBJECTION CASE" THE HEARING EXAMINER NOTED THAT THE FACTS HEREIN
PRESENTED A DISSIMILAR SITUATION IN THAT THERE WAS AN ABSENCE OF A
PENDING ELECTION. THUS, IN HIS VIEW, THE COMPLAINANT AND AFGE LOCAL
2723 HAD EQUIVALENT STATUS, AND THE USE OF THE FACILITIES BY THE LATTER
DID NOT INURE TO THE DETRIMENT OF THE COMPLAINANT. UNDER THESE
CIRCUMSTANCES, THE HEARING EXAMINER FOUND THAT AT THE TIME IT REQUESTED
AND OBTAINED THE USE OF RESPONDENT'S FACILITIES, AFGE LOCAL 2723 WAS
ENTITLED TO TREATMENT EQUIVALENT TO THAT ACCORDED THE COMPLAINANT OR ANY
OTHER LABOR ORGANIZATION, AND, THEREFORE, HE RECOMMENDED THAT THE
COMPLAINT IN THE SUBJECT CASE BE DISMISSED.
IN MY VIEW, THE HEARING EXAMINER ERRED IN FINDING THAT RESPONDENT DID
NOT VIOLATE SECTION 19(A)(1) AND (3) OF THE ORDER BY PERMITTING AFGE
LOCAL 2723 USE OF ITS FACILITIES FOR SOLICITATION PURPOSES WHILE THE
COMPLAINANT'S REPRESENTATION PETITION WAS PENDING. ALTHOUGH THE MENLO
PARK CASE INVOLVED OBJECTIONS TO AN ELECTION, I FIND THAT THE PRINCIPLES
ENUNCIATED IN THAT DECISION ARE APPLICABLE TO THE INSTANT UNFAIR LABOR
PRACTICE PROCEEDING. IN THAT DECISION, I STATED THAT: "WHEN THE
(PETITIONER) FILED A PETITION RAISING A VALID QUESTION CONCERNING
REPRESENTATION AND THE (OTHER LABOR ORGANIZATION), ALTHOUGH NOTIFIED OF
SUCH PETITION, CHOSE NOT TO INTERVENE IN THE PROCEEDINGS, THESE TWO
LABOR ORGANIZATIONS COULD NOT BE CONSIDERED TO HAVE EQUIVALENT STATUS."
SIMILARLY, IN THE INSTANT CASE, WHEN A PETITION WAS FILED, A QUESTION
CONCERNING REPRESENTATION WAS, IN EFFECT, RAISED. UNDER SUCH
CIRCUMSTANCES, WHEN AFGE LOCAL 2723 FAILED TO INTERVENE IN THAT
PETITION, IT COULD NOT BE VIEWED AS HAVING EQUIVALENT STATUS WITH THE
COMPLAINANT WITHIN THE MEANING OF SECTION 19(A)(3) OF THE ORDER. IN
THIS CONNECTION, THE TEST AS TO WHETHER THE RESPONDENT VIOLATED THE
ORDER BY ASSISTING AFGE LOCAL 2723, A LABOR ORGANIZATION NOT HAVING
EQUIVALENT STATUS IN THE PENDING REPRESENTATION MATTER, IS DEPENDENT
UPON WHETHER THERE EXISTED A QUESTION CONCERNING REPRESENTATION IN ALL
OR PART OF THE UNIT IN WHICH THE MEMBERSHIP SOLICITATION CAMPAIGN WAS
PERMITTED, AT THE TIME WHEN SUCH PERMISSION WAS GRANTED AND NOT UPON
SUBSEQUENT EVENTS. THUS, THE FACT THAT THE COMPLAINANT'S PETITION WAS
DISMISSED SUBSEQUENTLY IS NOT CONSIDERED TO BE DETERMINATIVE, WHERE, AS
HERE, EQUIVALENT STATUS WAS GRANTED TO A NON-INTERVENING LABOR
ORGANIZATION DURING THE PENDENCY OF A QUESTION CONCERNING REPRESENTATION
RAISED BY THE FILING OF A REPRESENTATION PETITION.
UNDER ALL THE CIRCUMSTANCES, THEREFORE, I FIND THAT THE RESPONDENT,
BY GRANTING TO AFGE LOCAL 2723 THE USE OF CERTAIN OF ITS FACILITIES FOR
A MEMBERSHIP SOLICITATION DRIVE AMONG EMPLOYEES COVERED BY THE
COMPLAINANT'S PETITION AND BEFORE THE RESOLUTION OF A PENDING QUESTION
CONCERNING REPRESENTATION INVOLVING SUCH EMPLOYEES, INTERFERED WITH
EMPLOYEE RIGHTS ASSURED UNDER SECTION 1(A) AND PROVIDED IMPROPER
ASSISTANCE TO A LABOR ORGANIZATION IN VIOLATION OF SECTION 19(A)(1) AND
(3) OF THE ORDER, AS AMENDED. /8/
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (3) OF EXECUTIVE ORDER 11491, AS
AMENDED, I SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND
TAKE SPECIFIC AFFIRMATIVE ACTION, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, SF, BURLINGAME,
CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) ASSISTING A LABOR ORGANIZATION, WHICH IS NOT A PARTY TO A PENDING
REPRESENTATION PROCEEDING WHICH RAISES A QUESTION CONCERNING
REPRESENTATION, IN THE CONDUCTING OF A MEMBERSHIP SOLICITATION CAMPAIGN
BY PERMITTING THAT LABOR ORGANIZATION THE USE OF ITS FACILITIES IN THE
SAME MANNER AS PERMITTED A LABOR ORGANIZATION WHICH IS A PARTY TO THE
PENDING REPRESENTATION PROCEEDING.
(B) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES BY
PERMITTING A LABOR ORGANIZATION, WHICH IS NOT A PARTY TO A PENDING
REPRESENTATION PROCEEDING WHICH RAISES A QUESTION CONCERNING
REPRESENTATION, THE USE OF ITS FACILITIES FOR A MEMBERSHIP SOLICITATION
CAMPAIGN IN THE SAME MANNER AS PERMITTED A LABOR ORGANIZATION WHICH IS A
PARTY TO THE PENDING REPRESENTATION PROCEEDING.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE COMMANDER, DCAS REGION AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE COMMANDER, DCAS REGION SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
FEBRUARY 13, 1973
/1/ THE HEARING EXAMINER RECOMMENDED DENIAL OF THE RESPONDENT'S
MOTION THAT THE COMPLAINT BE DISMISSED AS BEING AMBIGUOUS BECAUSE THE
COMPLAINANT HAD LEFT BLANK ON THE COMPLAINT FORM THE SPACE PROVIDED WITH
RESPECT TO THE BASIS OF THE COMPLAINT, EXCEPT FOR THE STATEMENT, "SEE
ATTACHED LETTER." IN THIS REGARD, THE RESPONDENT CONTENDED THAT REPORT
ON A RULING OF THE ASSISTANT SECRETARY, NO. 48, WAS CONTROLLING. THIS
REPORT STATES, IN PART, THAT "THE USE OF SUCH PHRASES AS 'SEE ATTACHED
CORRESPONDENCE' RENDERS AN OTHERWISE ADEQUATE COMPLAINT INVALID." I
AGREE WITH THE HEARING EXAMINER THAT UNDER THE CIRCUMSTANCES THE
COMPLAINT HEREIN IS NOT FATALLY DEFECTIVE. THUS, THE STATEMENT OF
POLICY ENUNCIATED IN REPORT NO. 48 WAS DESIGNED SOLELY TO ADVISE
COMPLAINANTS THAT THE AREA OFFICE SHOULD NOT BE REQUIRED TO GO THROUGH
THE PARTIES' ENTIRE REPORT OF INVESTIGATION TO ASCERTAIN THE BASIS OF A
COMPLAINT. HOWEVER, WHERE, AS IN THE INSTANT CASE, THE COMPLAINT FORM
STATES "SEE ATTACHED LETTER" IN THE SPACE PROVIDED FOR THE BASIS OF THE
COMPLAINT AND THE ATTACHED LETTER, IN FACT, CONTAINS A CLEAR AND CONCISE
STATEMENT OF THE BASIS OF THE COMPLAINT, SUCH COMPLAINT WILL NOT BE
CONSIDERED TO BE DEFECTIVE. ACCORDINGLY, AS RECOMMENDED BY THE HEARING
EXAMINER, I SHALL DENY THE RESPONDENT'S MOTION.
/2/ AFGE LOCAL 2723 DID NOT CROSS-PETITION OR INTERVENE IN THE
PETITION FILED BY THE COMPLAINANT.
/3/ IN THAT DECISION AN ELECTION WAS SET ASIDE WHERE THE FACTS
REVEALED THAT A NON-INTERVENING LABOR ORGANIZATION HAD BEEN GIVEN
EQUIVALENT STATUS IN ELECTIONEERING TO THAT ENJOYED BY A PETITIONING
LABOR ORGANIZATION. ALTHOUGH THAT CASE DID NOT INVOLVE AN UNFAIR LABOR
PRACTICE PROCEEDING, I INDICATED THAT THE DISPOSITION WAS BASED ON THE
POLICY SET FORTH IN SECTION 19(A)(3) OF THE ORDER. SECTION 19(A)(3)
PROVIDES THAT, "AGENCY MANAGEMENT SHALL NOT--
(3) SPONSOR, CONTROL, OR OTHERWISE ASSIST A LABOR ORGANIZATION,
EXCEPT THAT AN AGENCY MAY FURNISH CUSTOMARY AND ROUTINE SERVICES AND
FACILITIES UNDER SECTION 23 OF THIS ORDER WHEN CONSISTENT WITH THE BEST
INTERESTS OF THE AGENCY, ITS EMPLOYEES, AND THE ORGANIZATION, AND WHEN
THE SERVICES AND FACILITIES ARE FURNISHED, IF REQUESTED, ON AN IMPARTIAL
BASIS TO ORGANIZATIONS HAVING EQUIVALENT STATUS;".
/4/ SEE DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), SAN FRANCISCO, A/SLMR NO. 112.
/5/ OTHER PETITIONS HAD BEEN FILED BY LOCAL 7, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES AND BY LOCAL 3204, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO. THESE PETITIONS INVOLVED EMPLOYEES LOCATED OUTSIDE
OF THE NORTHERN CALIFORNIA AREA OF RESPONDENT'S REGION. AFGE LOCAL 2723
DID NOT INTERVENE IN EITHER OF THESE PETITIONS.
/6/ SEE DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), SAN FRANCISCO, CITED ABOVE.
/7/ THERE ALSO WAS EVIDENCE THAT SOLICITATION WAS CARRIED ON IN THE
SALT LAKE CITY OFFICE OF THE RESPONDENT BY REPRESENTATIVES OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
/8/ MY FINDING HEREIN IS BASED UPON THE FACT THAT THE SOLICITATION
PRIVILEGES ACCORDED WERE REQUESTED BY A NATIONAL REPRESENTATIVE OF THE
AFGE AND WERE GRANTED BY THE RESPONDENT TO THE LABOR ORGANIZATION AS
DISTINGUISHED FROM SOLICITATION BY AN INDIVIDUAL EMPLOYEE OR EMPLOYEES
OF THE RESPONDENT. AS I HAVE INDICATED PREVIOUSLY, NORMALLY EMPLOYEES
HAVE THE RIGHT TO SOLICIT ON THEIR NON-WORK TIME AND TO DISTRIBUTE
CAMPAIGN MATERIAL ON THEIR NON-WORK TIME AND IN NON-WORK AREAS EVEN WHEN
A QUESTION CONCERNING REPRESENTATION IS PENDING. IN THIS REGARD, SEE
FEDERAL AVIATION ADMINISTRATION, NEW YORK AIR ROUTE TRAFFIC CONTROL
CENTER, A/SLMR NO. 184; AND CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1.
WE WILL NOT ASSIST A LABOR ORGANIZATION, WHICH IS NOT A PARTY TO A
PENDING REPRESENTATION PROCEEDING WHICH RAISES A QUESTION CONCERNING
REPRESENTATION, IN THE CONDUCTING OF A MEMBERSHIP SOLICITATION CAMPAIGN
BY PERMITTING THAT LABOR ORGANIZATION TO USE OUR FACILITIES IN THE SAME
MANNER AS PERMITTED A LABOR ORGANIZATION WHICH IS A PARTY TO THE PENDING
REPRESENTATION PROCEEDING.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
PERMITTING A LABOR ORGANIZATION, WHICH IS NOT A PARTY TO A PENDING
REPRESENTATION PROCEEDING WHICH RAISES A QUESTION CONCERNING
REPRESENTATION, TO USE OUR FACILITIES FOR A MEMBERSHIP SOLICITATION
CAMPAIGN IN THE SAME MANNER AS PERMITTED A LABOR ORGANIZATION WHICH IS A
PARTY TO THE PENDING REPRESENTATION PROCEEDING.
DATED . . . BY . . .
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 ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
U.S. DEPARTMENT OF LABOR WHOSE ADDRESS IS: ROOM 9061 FEDERAL OFFICE
BUILDING, 450 GOLDEN GATE AVE., SAN FRANCISCO, CALIFORNIA 94102.
DEPARTMENT OF DEFENSE
DEFENSE SUPPLY AGENCY
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION, SF
BURLINGAME, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (IND.) LOCAL 1
J. ZUKOR, ESQ.
866 MALCOLM ROAD, BURLINGAME,
CALIFORNIA 94010, FOR THE
RESPONDENT.
HOMER R. HOSINGTON, ESQ.
POST OFFICE BOX 870,
RIALTO, CALIFORNIA 92376, FOR
THE COMPLAINANT.
BEFORE: WILLIAM NAIMARK, HEARING EXAMINER
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON MAY 19, 1972, BY
THE REGIONAL ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES ADMINISTRATION,
SAN FRANCISCO REGION, BASED ON A COMPLAINT FILED BY NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1 (HEREIN CALLED THE COMPLAINANT), AGAINST
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES REGION,
SF., (HEREIN CALLED THE RESPONDENT). THE COMPLAINT ALLEGED A VIOLATION
BY RESPONDENT OF SECTION 19(A)(1) AND (3) OF THE ORDER BY ITS GRANTING A
MEMBERSHIP DRIVE TO LOCAL 2723, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (HEREIN CALLED LOCAL 2723) DESPITE THE FACT THAT LOCAL 2723
FAILED TO INTERVENE IN PENDING REPRESENTATION CASE NO. 70-1860 WHICH
INVOLVED A UNIT DETERMINATION OF RESPONDENT'S EMPLOYEES.
ON JUNE 16, 1972, PRIOR TO THE HEARING, RESPONDENT FILED A MOTION /1/
TO DISMISS THE COMPLAINT WITH THE REGIONAL ADMINISTRATOR. THIS MOTION
WAS RENEWED AT THE HEARING AT WHICH TIME NO RULING HAD AS YET BEEN MADE
BY THE REGIONAL OFFICE. /2/ RESPONDENT CONTENDS, IN SUPPORT THEREOF,
THAT THE COMPLAINT IS AMBIGUOUS, UNINTELLIGIBLE, AND NOT SPECIFIC AS TO
THE CHARGES LEVELED AGAINST IT. FURTHER, RESPONDENT INSISTS THAT SINCE
THE BASIS OF THE COMPLAINT WAS SET FORTH IN AN ATTACHED LETTER, INSTEAD
OF IN THE FORM ITSELF, THE COMPLAINT SHOULD BE DISMISSED. IN RESPECT TO
THE LATTER CONTENTION, RESPONDENT CITES REPORT NO. 48 - REPORT ON RULING
OF THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
THIS REPORT DOES REQUIRE THE COMPLAINT FORM TO CONTAIN THE PARTICULAR
ACTS COMPLAINED OF ALONG WITH ATTENDANT DETAILS. IT ALSO STATES THAT
USING PHRASES SUCH AS "SEE ATTACHED CORRESPONDENCE," AS WAS DONE IN THE
INSTANT COMPLAINT, RENDERS AN OTHERWISE ADEQUATE COMPLAINT INVALID.
THE UNDERSIGNED REJECTS THE ARGUMENT THAT THE COMPLAINT IS AMBIGUOUS
AND DOES NOT APPRISE RESPONDENT OF THE CHARGES AGAINST IT. THE
COMPLAINT NOT ONLY ALLEGES VIOLATIONS OF SECTIONS 19(A)(1) AND (3) OF
THE ORDER, BUT THE CHARGE, WHICH IS ATTACHED THERETO, RECITES THE
SPECIFIC CONDUCT ENGAGED IN BY RESPONDENT WHICH IS ALLEGEDLY VIOLATIVE
OF THESE SECTIONS. NOR DOES THE USE OF THE DISJUNCTIVE IN ALLEGING
VIOLATIONS OF THE ORDER RENDER THE COMPLAINT UNINTELLIGIBLE, FOR SAID
USAGE IS MERELY A RECITATION OF THE LANGUAGE EMPLOYED IN THE ORDER
ITSELF.
IN RESPECT TO REPORT NO. 48, THE UNDERSIGNED CONCLUDES THAT ATTACHING
SUPPORTING DATE, IN LIEU OF SETTING FORTH SUCH FACTUAL MATERIAL ON THE
COMPLAINT FORM, DOES NOT WARRANT DISMISSING THE COMPLAINT. THE OBVIOUS
PURPOSE OF THIS RULING IS TO ELIMINATE NUMEROUS AND IRRELEVANT
ATTACHMENTS TO THE COMPLAINT. NEVERTHELESS, THOUGH IT MAY WELL BE
PREFERABLE TO INCORPORATE FACTS SUPPORTING THE COMPLAINT IN THE FORM,
RESPONDENT IS NOTIFIED BY THE ACCOMPANYING LETTER OF THE FACTS OR BASIS
FOR THE COMPLAINT. IT WOULD SCARCELY SERVE THE ENDS OF JUSTICE TO
CONCLUDE THAT THE FAILURE TO INSERT THE FACTS IN THE FORM ITSELF RENDERS
THE COMPLAINT JURISDICTIONALLY DEFECTIVE. FEDERAL POLICY CALLS FOR
LIBERAL CONSTRUCTION OF PLEADINGS. SEE SHEET METAL WORKER, LOCALS 99
AND 150 (ASSOCIATED PIPE AND FITTINGS MANUFACTURERS) 175 NLRB NO. 116.
DURING THE HEARING RESPONDENT MOVED FURTHER TO DISMISS THE COMPLAINT
ON THE GROUNDS THAT (1) NO VIOLATION EXISTS BASED ON THE EVIDENCE
ADDUCED, (2) THE TESTIMONY PRESENTED BY COMPLAINANT IS NEW, AND
RESPONDENT IS SURPRISED BY SAME AS WELL AS THE EXHIBITS INTRODUCED IN
EVIDENCE.
IN RESPECT TO THE FIRST PORTION OF THIS FURTHER MOTION, THE
UNDERSIGNED WILL TREAT IT LATER IN THIS REPORT. THIS INVOLVES A
CONSIDERATION OF THE MERITS OF THIS CASE.
IN RESPECT TO THE CLAIM THAT NEW MATTER WAS INTRODUCED AT THE
HEARING, THE UNDERSIGNED FINDS NO BASIS FOR THIS CONTENTION.
COMPLAINANT'S TESTIMONY ADDUCED IN THE HEARING WAS IN SUPPORT OF ITS
COMPLAINT AGAINST RESPONDENT, NAMELY, THAT PERMITTING LOCAL 2723 TO
CONDUCT A MEMBERSHIP, OR SIGNATURE-SOLICITATION, CAMPAIGN WAS VIOLATIVE
OF SECTION 19(A)(3) OF THE ORDER. THE FLIERS /3/ DISTRIBUTED BY LOCAL
2723, AND INTRODUCED IN EVIDENCE AT THE HEARING, WERE PART AND PARCEL OF
THAT CAMPAIGN CONDUCTED BY SAID UNION. COMPLAINANT'S THEORY OF AN
ALLEGED VIOLATION WAS NOT ALTERED AT THE HEARING, AND THE CLAIM OF
SURPRISE BY RESPONDENT IS REJECTED.
ACCORDINGLY, THE UNDERSIGNED RECOMMENDS THAT THE ASSISTANT SECRETARY
DENY THE MOTION TO DISMISS THE COMPLAINT BASED ON THE CONTENTIONS THAT
(A) THE COMPLAINT IS AMBIGUOUS, UNINTELLIGIBLE OR NOT SPECIFIC AS TO THE
CHARGES AGAINST RESPONDENT, (B) THE BASIS FOR THE COMPLAINT WAS ATTACHED
TO THE INSTRUMENT IN PLACE OF BEING SET FORTH IN THE COMPLAINT ITSELF,
(C) THE RESPONDENT WAS CONFRONTED WITH NEW MATTER AT THE HEARING FOR
WHICH IT WAS NOT PREPARED, AND THUS WAS SURPRISED THEREBY.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JULY 11, 1972 AT SAN
FRANCISCO, CALIFORNIA. BOTH PARTIES WERE REPRESENTED AT THE HEARING,
AND THEIR REPRESENTATIVES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
ON THE ISSUES INVOLVED HEREIN. ALTHOUGH THE PARTIES WERE GRANTED AN
OPPORTUNITY TO DO SO, NEITHER HAS FILED A BRIEF WITH THE UNDERSIGNED.
FROM THE ENTIRE RECORD IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY ADDUCED AT
THE HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS:
RESPONDENT'S EMPLOYEES HAVE BEEN UNREPRESENTED BY ANY LABOR
ORGANIZATION AS THEIR EXCLUSIVE BARGAINING REPRESENTATIVE. ON DECEMBER
7, 1970 THE COMPLAINANT HEREIN FILED A REPRESENTATION PETITION IN CASE
NO. 70-1860 SEEKING AN ELECTION AMONG RESPONDENT'S EMPLOYEES IN
CALIFORNIA. ITS SISTER LOCAL NO. 7 ALSO FILED A PETITION SEEKING AN
ELECTION AMONG EMPLOYEES OF RESPONDENT LOCATED AT PORTLAND, OREGON IN
CASE NO. 71-1813. A PETITION TO REPRESENT RESPONDENT'S EMPLOYEES IN THE
STATE OF WASHINGTON, OREGON, AND MONTANA WAS FILED IN CASE NO. 71-1681
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3204.
THESE CASES WERE CONSOLIDATED FOR HEARING WHICH WAS HELD ON JULY 20,
1971, AND LOCAL 2723 DID NOT INTERVENE THEREIN. ON NOVEMBER 30, 1971
ALL THREE PETITIONS WERE DISMISSED BY THE ASSISTANT SECRETARY. /4/ HE
FOUND THAT NONE OF THE UNITS CONSTITUTED AN APPROPRIATE UNIT FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491.
SEVERAL DAYS FOLLOWING THE HEARING ON JULY 20, 1971 RESPONDENT
GRANTED PERMISSION TO LOCAL 2723 TO SOLICIT SIGNATURES AMONG
RESPONDENT'S EMPLOYEES IN ORDER TO FILE A REPRESENTATION PETITION FOR A
REGIONAL WIDE UNIT. COMPLAINANT CONTENDS THAT SINCE LOCAL 2723 DID NOT
INTERVENE IN THE REPRESENTATION HEARING ON JULY 20, 1971, IT SHOULD NOT
HAVE BEEN PERMITTED TO CONDUCT A MEMBERSHIP CAMPAIGN ON RESPONDENT'S
PREMISES. MOREOVER, THAT BY GRANTING IT ACCESS TO THE PREMISES, AND
AIDING LOCAL 2723 IN CONTACTING THE EMPLOYEES, RESPONDENT WAS ASSISTING
THIS UNION IN VIOLATION OF THE EXECUTIVE ORDER. IN SUPPORT OF ITS
CONTENTION, COMPLAINANT CITES U.S. DEPARTMENT OF THE INTERIOR, PACIFIC
COAST REGION, GEOLOGICAL SURVEY CENTER, MENLO PARK, CALIFORNIA, A/SLMR
NO. 143.
IT IS RESPONDENT'S POSITION THAT THE CITED CASE IS INAPPLICABLE TO
THE FACTS OF THE PRESENT CASE. RESPONDENT ARGUES THERE WAS NOTHING
ILLEGAL IN ALLOWING LOCAL 2723 TO SOLICIT SIGNATURES SINCE NO ELECTION
WAS INVOLVED. IT URGES THE SAME ACCOMMODATION WAS EXTENDED TO
COMPLAINANT, AND THE LATTER SUFFERED NO DAMAGE WHEN LOCAL 2723 WAS
AFFORDED THE OPPORTUNITY TO CONDUCT ITS DRIVE.
WHETHER RESPONDENT SPONSORED, CONTROLLED, OR ASSISTED LOCAL 2723 BY
PERMITTING IT TO SOLICIT SIGNATURES FOR A REPRESENTATION PETITION, AND
ALLOWING IT THE USE OF RESPONDENT'S FACILITIES, IN VIEW OF LOCAL 2723
HAVING FAILED TO INTERVENE IN PRIOR REPRESENTATION PROCEEDINGS WHICH
INVOLVED RESPONDENT'S EMPLOYEES AND WERE ULTIMATELY DISMISSED.
IT IS NOT DISPUTED, AND RECORD FACTS SHOW, THAT THE EMPLOYER HEREIN
PERMITTED UNIONS TO SOLICIT SIGNATURES PREPARATORY TO FILING A
REPRESENTATIVE PETITION. THUS, BETWEEN NOVEMBER 16 AND DECEMBER 5, 1970
COMPLAINANT CONDUCTED A DRIVE AT RESPONDENT'S BURLINGAME LOCATION TO
OBTAIN SIGNATURES AUTHORIZING IT TO SEEK AN ELECTION. THIS DRIVE WAS
UNDERTAKEN WITH THE SANCTION AND APPROVAL OF RESPONDENT, AND THE LATTER
ARRANGED WITH THE UNION FOR THE USE OF DISPLAY TABLES AND THE CONTACTING
OF EMPLOYEES. THE PETITION IN CASE NO. 70-1860 WAS FILED WITH THE
DEPARTMENT OF LABOR BY COMPLAINANT ON DECEMBER 8, 1970.
SHORTLY AFTER THE REPRESENTATION HEARING ON JULY 20, 1971, GEORGE
CARTER, A NATIONAL REPRESENTATIVE OF AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, REQUESTED PERMISSION OF RESPONDENT, ON BEHALF OF LOCAL 2723,
TO SOLICIT SIGNATURES AMONG ITS EMPLOYEES FOR A REGIONAL WIDE UNIT. THE
REQUEST WAS GRANTED, AND LOCAL 2723 SOLICITED SIGNATURES FROM ABOUT JULY
22 THROUGH AUGUST 31, 1971. DURING ITS CAMPAIGN LOCAL 2723 WAS GRANTED
ACCESS TO THE EMPLOYEES, AS WELL AS THE PRIVILEGE OF DISTRIBUTING
LITERATURE, IN THE SAME MANNER AND TO THE SAME EXTENT AS WAS ACCORDED
COMPLAINANT. NO CONTENTION IS MADE BY COMPLAINANT THAT THE ACTIVITY
GRANTED ACCESS AND ACCOMMODATIONS TO LOCAL 2723 WHICH WERE DENIED TO IT.
ON JULY 26, 1971 RESPONDENT NOTIFIED MIKE GERONDAKIS, NATIONAL
REPRESENTATIVE OF NATIONAL FEDERATION OF FEDERAL EMPLOYEES (HEREIN
CALLED NFFE) THAT IT HAD GIVEN PERMISSION TO LOCAL 2723 TO COMMENCE A
DRIVE TO OBTAIN SIGNATURES FOR THE FILING OF A REGIONAL WIDE
REPRESENTATION PETITION. SINCE THE REPRESENTATIVES OF NFFE FELT THIS
WAS AN UNFAIR LABOR PRACTICE, A MEETING WAS ARRANGED AMONG GERONDAKIS,
DERREL S. FULWIDER, SPECIAL REPRESENTATIVE FOR NFFE, HARRY L. TOVANI AND
J. ZUKOR, PERSONNEL OFFICERS FOR RESPONDENT. THE REPRESENTATIVES OF
BOTH PARTIES MET ON AUGUST 19, 1971, BUT GERONDAKIS WAS UNABLE TO
CONVINCE THE EMPLOYER THAT IT HAD COMMITTED AN UNFAIR LABOR PRACTICE.
ACCORDINGLY, A CHARGE WAS FILED WHICH GAVE RISE TO THE COMPLAINT HEREIN.
SECTION 19(A)(3) OF THE ORDER, WHICH COMPLAINANT ALLEGES HAS BEEN
VIOLATED BY RESPONDENT, PROVIDES AS FOLLOWS:
"(A) AGENCY MANAGEMENT SHALL NOT--
* * *
(3) SPONSOR, CONTROL, OR OTHERWISE ASSIST A LABOR ORGANIZATION,
EXCEPT THAN AN AGENCY MAY FURNISH CUSTOMARY AND ROUTINE SERVICES AND
FACILITIES UNDER SECTION 23 OF THIS ORDER WHEN CONSISTENT WITH THE BEST
INTERESTS OF THE AGENCY, ITS EMPLOYEES, AND THE ORGANIZATION, AND WHEN
THE SERVICES AND FACILITIES ARE FURNISHED, IF REQUESTED, ON AN IMPARTIAL
BASIS TO ORGANIZATIONS HAVING EQUIVALENT STATUS;"
AN EXAMINATION OF THE ABOVE-QUOTED SECTION, TOGETHER WITH SECTION 23,
REVEALS THAT THE ORDER CONTEMPLATES THE USE BY A UNION OF AN ACTIVITY'S
FACILITIES AND SERVICES TO CARRY ON ORGANIZATIONAL AND UNION BUSINESS
UNDER CERTAIN CIRCUMSTANCES. THUS, IF THE ACTIVITY COMPLIES WITH THE
MODIFYING CLAUSE IN SECTION 19(A)(3) IT CANNOT BE GUILTY OF SPONSORING,
CONTROLLING, OR ASSISTING A LABOR ORGANIZATION WHEN FURNISHING IT
CERTAIN ROUTINE SERVICES AND FACILITIES. HOWEVER, WHERE LABOR
ORGANIZATIONS DO NOT ENJOY EQUIVALENT STATUS, AN EMPLOYER WOULD BE
FLOUTING THE ORDER IF IT FURNISHED SERVICES AND FACILITIES ON AN
EQUIVALENT BASIS TO BOTH UNIONS.
THE CASE OF U.S. DEPARTMENT OF THE INTERIOR, PACIFIC COAST REGION,
GEOLOGICAL SURVEY CENTER, MENLO PARK, CALIFORNIA, SUPRA, IS URGED UPON
THE UNDERSIGNED BY COMPLAINANT IN SUPPORT OF ITS POSITION. THE CITED
CASE INVOLVED OBJECTIONS TO AN ELECTION FILED BY NFFE ON THE GROUND,
INTER ALIA, THAT THE ACTIVITY GRANTED PERMISSION TO AFGE TO CONDUCT A
MEMBERSHIP CAMPAIGN, INCLUDING THE DISTRIBUTION AND POSTING OF
PROPAGANDA DURING A FIVE WEEK PERIOD PRIOR TO THE ELECTION. THERE WAS
NO INTERVENTION BY AFGE IN THE PROCEEDING, AND NFFE WAS THE ONLY UNION
ON THE BALLOT. THE ACTIVITY ATTEMPTED TO JUSTIFY ITS AID TO AFGE BASED
ON SAID UNION HAVING BEEN FORMALLY RECOGNIZED UNDER PREVIOUS EXECUTIVE
ORDER 10988.
,##HC115 THE ASSISTANT SECRETARY FOUND THAT BY ANNOUNCING TO
EMPLOYEES IT WAS PERMITTING AFGE TO USE THE FACILITIES ON AN EQUAL
FOOTING WITH NFFE, AND IN FACT GRANTING AFGE ACCESS TO THE FACILITIES TO
CONDUCT A VOTE "NO" CAMPAIGN, THE ACTIVITY INTERFERED WITH THE
EMPLOYEES' FREEDOM OF CHOICE TO SELECT A REPRESENTATIVE. HE DIRECTED
THE ELECTION BE SET ASIDE AND DIRECTED A SECOND ELECTION. THE RATIONALE
OF THAT DECISION RESTS ON THE UNEQUAL STATUS OF NFFE AND AFGE, WHICH
DOES NOT ALLOW FOR EQUAL TREATMENT. THUS, NFFE WAS TO BE ON THE BALLOT,
WHEREAS THE OTHER UNION WOULD NOT BE. SINCE AFGE CHOSE NOT TO
INTERVENE, THE TWO LABOR ORGANIZATIONS WERE NOT VIEWED AS HAVING
EQUIVALENT STATUS. ACCORDINGLY, THE ASSISTANT SECRETARY CONCLUDED AFGE
WAS NOT ENTITLED TO ENJOY THE SAME ELECTIONEERING PRIVILEGES AS NFFE.
WHILE COMPLAINANT URGES THAT THE GEOLOGICAL SURVEY CENTER CASE,
SUPRA, SHOULD CONTROL THE DISPOSITION OF THE CASE HEREIN, THE
UNDERSIGNED REJECTS THIS POSITION AND CONSIDERS THE TWO CASES
DISTINGUISHABLE. ALTHOUGH IT IS TRUE THAT LOCAL 2723 DID NOT INTERVENE
IN THE PRIOR REPRESENTATION PROCEEDINGS, ITS FAILURE TO DO SO DID NOT
SECURE ANY SPECIAL ADVANTAGES. NO ELECTION WAS TO BE HELD IN WHICH
COMPLAINANT WOULD BE ON THE BALLOT, AND LOCAL 2723 WAS THEREFORE NOT
FAVORED WITH ELECTIONEERING PRIVILEGES AS WERE ACCORDED AFGE IN THE
CITED CASE. IT WOULD HAVE BEEN MANIFESTLY UNFAIR TO PERMIT AFGE, WHICH
HAD NOT INTERVENED, TO CAMPAIGN AGAINST NFFE IN THE OBJECTION CASE, AND
THUS, IN EFFECT, URGE THE EMPLOYEES TO VOTE AGAINST NFFE AND THEREBY
FAVOR THE ACTIVITY. IN THE INSTANT CASE, HOWEVER, ALLOWING LOCAL 2723
TO CONDUCT A SIGNATURE-SOLICITATION CAMPAIGN IN ORDER TO FILE A
REPRESENTATIVE PETITION PRESENTS A DISSIMILAR SITUATION. THE ABSENCE OF
A PENDING ELECTION RESULTS IN COMPLAINANT AND LOCAL 2723 HAVING
EQUIVALENT STATUS, AND THE USE OF THE FACILITIES BY THE LATTER UNION
DOES NOT INURE TO THE DETRIMENT OF THE COMPLAINANT. RESPONDENT WAS
ACCORDING LOCAL 2723 THE SAME USE OF ITS FACILITIES-- FOR A SIGNATURE
DRIVE-- AS IT ACCORDED COMPLAINANT PREVIOUSLY. SINCE LOCAL 2723, BY
OBTAINING PERMISSION TO USE THE FACILITIES, WAS CONCERNED SOLELY WITH
OBTAINING SIGNATURES SUFFICIENT TO FILE A PETITION FOR ELECTION, IT WAS
ENTITLED, UNDER THE ORDER, TO TREATMENT EQUIVALENT TO THAT BESTOWED ON
COMPLAINANT AND OTHER LABOR ORGANIZATIONS. ACCORDINGLY, I CONCLUDE THAT
RESPONDENT DID NOT SPONSOR, CONTROL, OR OTHERWISE ASSIST LOCAL 2723 IN
VIOLATION OF SECTION 19(A)(3) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED.
DATED AT WASHINGTON, D.C.
AUGUST 23, 1972
/0/ THIS REPRODUCED COPY REFLECTS ALL OF THE CORRECTIONS CONTAINED IN
THE HEARING EXAMINER'S ERRATA ISSUED ON AUGUST 28, 1972.
/1/ RESPONDENT EXHIBIT 1.
/2/ THE REGIONAL ADMINISTRATOR DENIED THE MOTION TO DISMISS ON AUGUST
3, 1972.
/3/ COMPLAINANT'S EXHIBITS 1A-1H.
/4/ A/SLMR NO. 112.
3 A/SLMR 246; P. 88; CASE NO. 22-1976; JANUARY 24, 1973.
NATIONAL LABOR RELATIONS BOARD
A/SLMR NO. 246
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION (NLRBPA) AGAINST
THE NATIONAL LABOR RELATIONS BOARD (NLRB) ALLEGING THAT BY UNILATERALLY
ADOPTING AND IMPLEMENTING A NEW CASE HANDLING PROCEDURE THE NLRB HAD
VIOLATED SECTION 19(A)(6) AND (1) OF THE EXECUTIVE ORDER. THE NLRB
CONTENDED THAT IT HAD NO OBLIGATION TO NEGOTIATE ON THE MATTERS
INVOLVED.
THE EVIDENCE REVEALED THAT THE NLRB EMPLOYS FOR EACH OF ITS FIVE
BOARD MEMBERS A STAFF OF LEGAL ASSISTANTS, WHO PERFORM VARIOUS TASKS IN
THE PROCESSING OF CASES WHICH ARE BEFORE THE BOARD. IN WHAT WAS TERMED
A "NEW CASE ASSIGNMENT AND DEADLINE PROCEDURE," CHANGES WERE MADE IN THE
MANNER IN WHICH CASES WERE ASSIGNED TO SPECIFIC LEGAL ASSISTANTS, TIME
TARGETS WHICH IN THE PAST WERE FOR THE MOST PART IGNORED WERE
REINSTITUTED, AND A SYSTEM OF PERSONAL ACCOUNTABILITY FOR MEETING THOSE
TIME TARGETS WAS INSTITUTED.
IN AGREEMENT WITH THE HEARING EXAMINER, THE ASSISTANT SECRETARY FOUND
THAT THE CHANGE IN TIME SCHEDULES FOR THE PROCESSING OF CASES SET FORTH
IN RESPONDENT'S MEMORANDUM OF JULY 22, 1970, WAS A MATTER AFFECTING
WORKING CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER. IN
THIS REGARD, THE ASSISTANT SECRETARY FOUND THE RESPONDENT'S ACTIONS WITH
REGARD TO TIME SCHEDULES WERE NOT PRIVILEGED BY VIRTUE OF THE PROVISIONS
CONTAINED IN SECTIONS 11(B) AND 12 OF THE ORDER. NOR DID HE CONSIDER
THE EXISTENCE OF THE PARTIES' CONTRACTUAL GRIEVANCE PROCEDURE TO
PRECLUDE HIS DETERMINATION IN THE MATTER.
ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT RESPONDENT, BY
CHANGING THE TIME SCHEDULES FOR THE PROCESSING OF CASES BY ITS LEGAL
ASSISTANTS WITHOUT AFFORDING THE NLRBPA ADEQUATE NOTICE AND AN
OPPORTUNITY TO BARGAIN PRIOR TO THEIR INSTITUTION, VIOLATED SECTION
19(A)(6) AND (1) OF EXECUTIVE ORDER 11491.
WITH RESPECT TO THE OTHER ASPECTS OF THE COMPLAINT, IN AGREEMENT WITH
THE HEARING EXAMINER, THE ASSISTANT SECRETARY CONCLUDED THAT FURTHER
PROCEEDINGS WERE UNWARRANTED.
NATIONAL LABOR RELATIONS BOARD
AND
NATIONAL LABOR RELATIONS BOARD
PROFESSIONAL ASSOCIATION
ON OCTOBER 19, 1971, HEARING EXAMINER JOHN S. PATTON ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDINGS, FINDING
THAT THE NATIONAL LABOR RELATIONS BOARD, HEREIN CALLED RESPONDENT, HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT TAKE
CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED HEARING
EXAMINER'S REPORT AND RECOMMENDATIONS. THEREAFTER, THE RESPONDENT AND
NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION, HEREIN CALLED
COMPLAINANT, FILED EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT TO THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS OF THE HEARING EXAMINER ARE HEREBY AFFIRMED.
UPON CONSIDERATION OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS
AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE EXCEPTIONS,
STATEMENTS OF POSITION AND BRIEFS, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS, AND THE RECOMMENDATIONS OF THE HEARING EXAMINER. /1/
THE COMPLAINT IN THE INSTANT CASE ALLEGED THAT THE RESPONDENT HAD
VIOLATED SECTION 19(A)(6) AND (1) OF THE EXECUTIVE ORDER BY ADOPTING AND
IMPLEMENTING A NEW CASE HANDLING PROCEDURE. /2/ THE HEARING EXAMINER
CONCLUDED THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) AND (1) OF
EXECUTIVE ORDER 11491 BY UNILATERALLY CHANGING EMPLOYEE CONDITIONS OF
EMPLOYMENT, NAMELY, TIME SCHEDULES FOR THE PROCESSING OF CASES, WITHOUT
PRIOR NEGOTIATIONS WITH THE COMPLAINANT WITH RESPECT TO THOSE CHANGES.
THE HEARING EXAMINER ALSO FOUND THAT OTHER DISPUTED ACTIONS TAKEN BY THE
RESPONDENT EITHER DID NOT CONSTITUTE "CHANGES" IN CONDITIONS OF
EMPLOYMENT OF UNIT EMPLOYEES OR WERE AN EXERCISE OF "MANAGEMENT'S
PREROGATIVE(S)." THE RESPONDENT, WHILE ACKNOWLEDGING THAT IT CHANGED
"FACETS OF A LONG STANDING PROCESS BY WHICH CASES . . . ARE ASSIGNED TO
PROFESSIONAL STAFF MEMBERS . . ." WITHOUT FIRST CONFERRING, CONSULTING,
OR NEGOTIATING WITH THE COMPLAINANT, ARGUED THAT IT WAS NOT OBLIGATED TO
NEGOTIATE OVER SUCH MATTERS. FURTHER, IT CONTENDED THAT IN CERTAIN
OTHER RESPECTS, ITS CONDUCT DID NOT RESULT IN ANY CHANGE IN WORKING
CONDITIONS. THE COMPLAINANT EXCEPTED TO THE FACT THAT THE HEARING
EXAMINER DID NOT FIND ADDITIONAL INCIDENTS OF ALLEGED IMPROPER
UNILATERAL CHANGES IN CONDITIONS OF EMPLOYMENT AND, FURTHER, EXCEPTED TO
THE RECOMMENDED REMEDY.
THE ESSENTIAL FACTS OF THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH, IN DETAIL, IN THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS,
AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
WHILE THERE HAD EXISTED FOR SOME TEN YEARS "TIME TARGETS" GOVERNING
THE PROCESSING OF CASES BEFORE THE BOARD, THE APPLICATION AND
ENFORCEMENT OF SUCH DEADLINES VARIED AMONG THE SEVERAL STAFFS. THUS,
THE RANGE OF APPLICATION OF TIME TARGETS RAN FROM GENERAL DISREGARD OF
THEM TO THE ESTABLISHMENT OF DEADLINES GRANTING LESS TIME THAN THAT
PROVIDED IN THE TIME TARGETS. WHILE RECORDS WERE MAINTAINED ON "OVERAGE
CASES" AND THERE WAS STRESS ON MAINTAINING PRODUCTION, THERE WAS NO
FORMALIZED SYSTEM WHEREBY A LEGAL ASSISTANT HAD TO ACCOUNT FOR FAILING
TO MEET TIME TARGET DATES. UNDER THE "NEW CASE ASSIGNMENT AND DEADLINE
PROCEDURE" INSTITUTED BY THE RESPONDENT, COMPLETION OF THE CASE
ASSIGNMENTS AT THE INITIAL OR FIRST STAGE WAS REQUIRED TO BE EFFECTUATED
IN STRICT ACCORDANCE WITH THE PREVIOUSLY EXISTING TIME TARGETS "AND
WHEREVER POSSIBLE SHOULD BE A PERIOD OF SHORTER DURATION." EXTENSIONS OF
THE DUE DATE WERE TO BE GIVEN ONLY ON THE BASIS OF SUCH FACTORS
DESCRIBED AS "EXTRAORDINARY," "EMERGENCY," AND "TRULY UNUSUAL." LEGAL
ASSISTANTS WERE TO BE HELD STRICTLY ACCOUNTABLE FOR MEETING TIME TARGETS
AND A FAILURE IN THIS REGARD RESULTED IN HAVING TO EXPLAIN THE
DELINQUENCY TO SUPERVISORY PERSONNEL. ADDITIONALLY, PREVIOUSLY EXISTING
TIME TARGETS FOR THE SECOND, OR "INITIAL ACTION TO CIRCULATION" STAGE,
WERE TO BE USED ONLY AS A GUIDE, WITH THE SUB-PANEL NOW HAVING THE
DISCRETION TO MAKE ITS OWN DETERMINATION AS TO THE DEADLINE PROCEDURE IN
THE SECOND STAGE ON AN INDIVIDUAL BASIS.
IN AGREEMENT WITH THE HEARING EXAMINER, I FIND THAT IN THE
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S INSTITUTION OF CHANGES IN
TIME SCHEDULES FOR THE PROCESSING OF CASES AS SET FORTH IN ITS
MEMORANDUM OF JULY 22, 1970, IS A MATTER AFFECTING WORKING CONDITIONS
WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER AND A PROPER SUBJECT
FOR COLLECTIVE BARGAINING. /3/ THUS, SECTION 11(A) OF THE ORDER
REQUIRES THAT AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED
EXCLUSIVE RECOGNITION SHALL MEAT AT REASONABLE TIMES AND CONFER IN GOOD
FAITH WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES. /4/ IN MY VIEW, THE
RIGHT TO ENGAGE IN A DIALOGUE WITH RESPECT TO A CHANGE IN EMPLOYEE
WORKING CONDITIONS BECOMES MEANINGFUL ONLY WHEN AGENCY MANAGEMENT HAS
AFFORDED THE EXCLUSIVE REPRESENTATIVE REASONABLE NOTIFICATION AND AMPLE
OPPORTUNITY TO EXPLORE FULLY THE MATTER PRIOR TO THE IMPLEMENTATION OF
SUCH CHANGE. IF, AS HERE, A PARTY TO AN EXCLUSIVE BARGAINING
RELATIONSHIP WERE FREE TO MAKE UNILATERAL CHANGES IN ESTABLISHED WORKING
CONDITIONS OF UNIT EMPLOYEES, THE OBLIGATION ESTABLISHED UNDER SECTION
11(A) TO MEET AND CONFER ON SUCH WORKING CONDITIONS WITH AN EXCLUSIVE
REPRESENTATIVE WOULD BECOME MEANINGLESS. /5/ IN ADDITION, SUCH
UNILATERAL CONDUCT BY AN AGENCY HAS THE EFFECT OF UNDERCUTTING THE
EXCLUSIVE BARGAINING REPRESENTATIVE, THEREBY DESTROYING ITS
EFFECTIVENESS IN THE EYES OF THOSE WHOM IT REPRESENTS.
BASED ON THE FOREGOING, I FIND THAT BY CHANGING THE TIME SCHEDULES
FOR THE PROCESSING OF CASES BY ITS LEGAL ASSISTANTS WITHOUT AFFORDING
THE COMPLAINANT ADEQUATE NOTICE AND AN OPPORTUNITY TO BARGAIN WITH
RESPECT TO SAID CHANGES PRIOR TO THEIR INSTITUTION, THE RESPONDENT
VIOLATED SECTION 19(A)(6) AND (1) OF THE EXECUTIVE ORDER 11491.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(6) AND (1) OF EXECUTIVE ORDER 11491, I SHALL
ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE SPECIFIC
AFFIRMATIVE ACTION, AS SET FORTH BELOW, DESIGNED TO EFFECTUATE THE
POLICIES OF THE ORDER. /6/
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL LABOR
RELATIONS BOARD SHALL:
1. CEASE AND DESIST FROM:
INSTITUTING CHANGES IN THE TIME SCHEDULES FOR THE PROCESSING OF CASES
BY UNIT EMPLOYEES WITHOUT CONSULTING, CONFERRING, OR NEGOTIATING WITH
THE NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION, THE
EXCLUSIVE REPRESENTATIVE OF ITS UNIT EMPLOYEES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE WITH THE NATIONAL
LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION WITH RESPECT TO CHANGES
IN TIME SCHEDULES FOR THE PROCESSING OF CASES BY UNIT EMPLOYEES.
(B) POST AT ITS WASHINGTON, D.C., OFFICE COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY THE CHAIRMAN OF THE NATIONAL LABOR
RELATIONS BOARD AND THEY SHALL BE NOTED AND MAINTAINED BY THE NATIONAL
LABOR RELATIONS BOARD FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE NATIONAL LABOR RELATIONS BOARD SHALL TAKE REASONABLE STEPS
TO INSURE THAT SUCH NOTICES ARE NOT ALTERED OR DEFACED OR COVERED BY ANY
OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 20 DAYS FROM DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
DATED, WASHINGTON, D.C.
JANUARY 24, 1973
/1/ DURING THE COURSE OF THE PROCEEDING IN THIS CASE, A NEW EXECUTIVE
ORDER, NO. 11616, WAS ISSUED ON AUGUST 26, 1971, EFFECTIVE NOVEMBER 24,
1971, AMENDING PORTIONS OF EXECUTIVE ORDER 11491. NOTWITHSTANDING THAT
THE INSTANT CASE IS GOVERNED BY EXECUTIVE ORDER 11491, AS AMENDED,
CONTAINS NO RELEVANT REVISIONS OF ANY EXECUTIVE ORDER SECTIONS
APPLICABLE HEREIN.
/2/ THE COMPLAINT ADDITIONALLY ALLEGED THAT THE RESPONDENT HAD
VIOLATED SECTION 19(A)(6) AND (1) BY REFUSING TO CONSULT, CONFER, OR
NEGOTIATE IN GOOD FAITH WITH RESPECT TO CERTAIN SPECIFIC CONDITIONS OF
EMPLOYMENT. AS THIS ALLEGATION IN THE COMPLAINT WAS DISMISSED BY THE
REGIONAL ADMINISTRATOR AND WAS NOT APPEALED BY THE COMPLAINANT, IT IS
NOT BEFORE ME AND HAS NOT BEEN CONSIDERED IN REACHING MY ULTIMATE
DISPOSITION HEREIN.
/3/ IN THIS REGARD, IT IS NOTEWORTHY THAT IN THE PARTIES' NEGOTIATED
AGREEMENT, THE COMPLAINANT IS GRANTED THE RIGHT TO PRESENT ITS VIEWS
UPON ALL MATTERS OF CONCERN AND TO HAVE SUCH VIEWS CONSIDERED IN THE
FORMATION, DEVELOPMENT AND IMPLEMENTATION OF POLICIES AND PRACTICES
AFFECTING THE TERMS AND CONDITIONS OF EMPLOYMENT OF ALL UNIT EMPLOYEES.
/4/ THE LIMITATIONS ON THIS REQUIREMENT EXPRESSED IN SECTION 11(A)
WERE NOT DEEMED TO BE APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE.
ALSO, IN AGREEMENT WITH THE HEARING EXAMINER, THE RESPONDENT'S CONDUCT
HEREIN WITH REGARD TO TIME SCHEDULES WAS NOT CONSIDERED TO BE RENDERED
PRIVILEGED BY VIRTUE OF THE PROVISIONS CONTAINED IN SECTIONS 11(B) AND
12 OF THE ORDER. NOR, IN AGREEMENT WITH THE HEARING EXAMINER, DO I
CONSIDER THE EXISTENCE OF THE PARTIES' CONTRACTUAL GRIEVANCE PROCEDURE
TO PRECLUDE MY DETERMINATION IN THE MATTER.
/5/ CF. VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA,
A/SLMR NO. 87.
/6/ THE COMPLAINANT EXCEPTED TO THE HEARING EXAMINER'S REFUSAL TO
RECOMMEND A RETURN TO THE STATUS QUO. UNDER ALL THE CIRCUMSTANCES, I
AGREE WITH THE HEARING EXAMINER'S CONCLUSION THAT A RETURN TO THE STATUS
QUO IS NOT REQUIRED TO ACHIEVE A SATISFACTORY REMEDY IN THIS MATTER.
WE WILL NOT INSTITUTE CHANGES IN THE TIME SCHEDULES FOR THE
PROCESSING OF CASES BY UNIT EMPLOYEES WITHOUT CONSULTING, CONFERRING, OR
NEGOTIATING WITH THE NATIONAL LABOR RELATIONS BOARD PROFESSIONAL
ASSOCIATION, THE EXCLUSIVE REPRESENTATIVE OF OUR UNIT EMPLOYEES.
WE WILL, UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE WITH THE
NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION, WITH RESPECT TO
CHANGES IN TIME SCHEDULES FOR THE PROCESSING OF CASES BY UNIT EMPLOYEES.
DATED . . .
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, WHOSE ADDRESS IS ROOM 1012 PENN SQUARE BUILDING,
1317 FILBERT ST., PHILADELPHIA, PENNSYLVANIA 19107.
IN THE MATTER OF:
NATIONAL LABOR RELATIONS BOARD,
ACTIVITY
AND
NATIONAL LABOR RELATIONS BOARD
PROFESSIONAL ASSOCIATION,
COMPLAINANT
IT APPEARS TO THE HEARING EXAMINER THAT THE FIRST LINE IN THE
APPENDIX TO THE REPORT AND RECOMMENDATIONS ISSUED BY THE UNDERSIGNED
HEARING EXAMINER IN THIS CASE ERRONEOUSLY READ AS FOLLOWS: (NOTICE
APPENDED FOR ADOPTION BY THE EXECUTIVE SECRETARY); AND THAT SAID
SENTENCE SHOULD HAVE READ: (NOTICE APPENDED FOR ADOPTION BY THE
ASSISTANT SECRETARY).
THE FIRST LINE TO SAID APPENDIX TO SAID REPORT AND RECOMMENDATIONS
IS, THEREFORE, HEREBY AMENDED TO READ: (NOTICE APPENDED FOR ADOPTION BY
THE ASSISTANT SECRETARY).
DATE: OCTOBER 19, 1971
IN THE MATTER OF:
NATIONAL LABOR RELATIONS BOARD,
ACTIVITY
AND
NATIONAL LABOR RELATIONS BOARD
PROFESSIONAL ASSOCIATION,
COMPLAINANT
PATRICK HARDIN
JOEL HARMATZ
ATTORNEYS FOR THE NATIONAL
LABOR RELATIONS BOARD
THIS CASE IS BEFORE THE UNDERSIGNED HEARING EXAMINER, JOHN S.
PATTON, UNDER EXECUTIVE ORDER NO. 11491, ON THE COMPLAINT OF THE
NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION FILED SEPTEMBER
3, 1970, ALLEGING THAT THE NATIONAL LABOR RELATIONS BOARD ON OR ABOUT
JULY 22, 1970, ADOPTED AND IMPLEMENTED A NEW CASE HANDLING PROCEDURE IN
VIOLATION OF SECTION 19(A)(6) AND (A)(1) OF EXECUTIVE ORDER NO. 14491.
IT WAS ALLEGED BY THE NATIONAL LABOR RELATIONS BOARD PROFESSIONAL
ASSOCIATION, HEREINAFTER REFERRED TO AS THE ASSOCIATION, THAT THE
NATIONAL LABOR RELATIONS BOARD, HEREINAFTER REFERRED TO AS THE BOARD,
FAILED TO CONSULT, NEGOTIATE, AND BARGAIN IN GOOD FAITH WITH THE
ASSOCIATION PRIOR TO ADOPTING AND IMPLEMENTING SAID NEW CASE HANDLING
PROCEDURE. IT IS ALLEGED THAT BY THESE AND OTHER ACTS THE BOARD HAS
VIOLATED SECTION 19(A)(6) AND (A)(1) OF SAID EXECUTIVE ORDER.
THE ISSUE WAS SUBMITTED TO THE REGIONAL ADMINISTRATOR, WHO ON AUGUST
8, 1971, DISMISSED THE COMPLAINT AND DENIED REQUEST FOR ISSUANCE OF THE
NOTICE OF HEARING. SAID ACTION WAS APPEALED BY THE ASSOCIATION TO THE
ASSISTANT SECRETARY OF LABOR AND ON MAY 20, 1971, SAID ASSISTANT
SECRETARY DIRECTED THE REGIONAL DIRECTOR TO ISSUE A NOTICE OF HEARING.
COMPLAINT WAS INITIALLY ALSO FILED ALLEGING THAT THE NATIONAL LABOR
RELATIONS BOARD HAS REFUSED TO CONSULT, NEGOTIATE, AND BARGAIN IN GOOD
FAITH CONCERNING THE CAREER DEVELOPMENT TASK FORCE REPORT, WHICH ACTION
WAS ALLEGED TO BE IN VIOLATION OF SECTION 19(A)(6) AND (A)(1) OF SAID
EXECUTIVE ORDER. SAID PRAYERS OF THE COMPLAINT WERE ALSO DENIED. THE
ASSOCIATION, HOWEVER, DID NOT APPEAL RULING ON THE ISSUE RELATING TO THE
CAREER DEVELOPMENT TASK FORCE REPORT, AND THAT ISSUE IS NOT BEFORE THE
UNDERSIGNED HEARING EXAMINER AND WILL NOT BE DISCUSSED IN THIS REPORT.
PURSUANT TO SAID DIRECTION TO ISSUE NOTICE OF HEARING, NOTICE OF
HEARING WAS ISSUED ON JUNE 16, 1971, SETTING HEARING OF SAID ISSUES FOR
AUGUST 2, 1971, IN WASHINGTON, D.C. THE CASE CAME ON FOR HEARING BEFORE
JOHN S. PATTON, THE UNDERSIGNED HEARING EXAMINER, AND WAS DULY HEARD ON
AUGUST 2, 1971, AND AUGUST 5, 1971, IN WASHINGTON, D.C. MR. WILLIAM R.
STEWART AND MISS MARY L. GRIFFIN APPEARED AS COUNSEL FOR THE
ASSOCIATION, AND MR. PATRICK HARDIN AND MR. JOEL HARMATZ APPEARED AS
COUNSEL FOR THE BOARD. AT THE HEARING OF THE CAUSE, COUNSEL FOR BOTH
PARTIES WERE AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, EXAMINE AND
CROSS-EXAMINE WITNESSES, SUBMIT ORAL ARGUMENTS, AND FILE BRIEFS. /1/
ALL PARTIES HAVE FILED WRITTEN BRIEFS IN THIS CAUSE. PERMISSION WAS
GRANTED FOR THE FILING OF REPLY BRIEFS, FOLLOWING JOINT APPLICATION FOR
SAID PERMISSION, BUT NO REPLY BRIEFS HAVE BEEN RECEIVED.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM OBSERVATION OF THE
WITNESSES, AND DUE CONSIDERATION OF THE BRIEFS FILED BY THE PARTIES, I
MAKE THE FOLLOWING
LAW AND ISSUES OF THE CASE
SECTION 10 OF EXECUTIVE ORDER 11491 PROVIDES, AS FOLLOWS:
(A) AN AGENCY SHALL ACCORD EVIDENCE RECOGNITION TO A LABOR
ORGANIZATION WHEN THE ORGANIZATION HAS BEEN SELECTED IN A SECRET BALLOT
ELECTION BY A MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT AS THEIR
REPRESENTATIVE. * * *
(E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, IT IS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES, IN THE
UNIT AND IS ENTITLED TO ACT FOR AND TO NEGOTIATE AGREEMENTS COVERING ALL
EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR REPRESENTING THE INTEREST
OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD
TO LABOR ORGANIZATION MEMBERSHIP. THE LABOR ORGANIZATION SHALL BE GIVEN
THE OPPORTUNITY TO BE REPRESENTED IN FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OR EMPLOYEES IN THE UNIT.
SECTION 19 OF EXECUTIVE ORDER 11491 PROVIDES, AS FOLLOWS:
(A)(6) AGENCY MANAGEMENT SHALL NOT REFUSE TO CONSULT, CONFER, OR
NEGOTIATE WITH THE LABOR ORGANIZATION AS REQUIRED BY THIS ORDER.
THE ISSUE FOR DECISION IN THIS CAUSE IS WHETHER THE NATIONAL LABOR
RELATIONS BOARD BY ADOPTING A NEW PROCEDURE FOR CASE HANDLING BY THE
ATTORNEYS REPRESENTED BY ASSOCIATION WITHOUT PRIOR CONSULTATION WITH THE
ASSOCIATION REFUSED TO BARGAIN WITH THE ASSOCIATION IN VIOLATION OF
SECTION 19(A)(6) OF EXECUTIVE ORDER 11491.
IT IS CONCEDED BY ALL PARTIES THAT THE COMPLAINANT, NATIONL LABOR
RELATIONS BOARD PROFESSIONAL ASSOCIATION, HAS BEEN GRANTED RECOGNITION
AS BARGAINING REPRESENTATIVE FOR A UNIT CONSISTING OF THE FOLLOWING
EMPLOYEES:
ALL ATTORNEYS AND OTHER PROFESSIONAL EMPLOYEES PERFORMING COMPARABLE
LEGAL WORK IN THE WASHINGTON OFFICE OF THE BOARD, EXCLUDING (1) ANY
MANAGERIAL EXECUTIVE, (2) ANY EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN PURELY CLERICAL CAPACITY, AND (3) SUPERVISORS WHO
OFFICIALLY EVALUATE THE PERFORMANCE OF EMPLOYEES, AS STATED IN SECTION
6(A) OF EXECUTIVE ORDER 10988.
A COLLECTIVE BARGAINING CONTRACT, ASSOCIATION'S EXHIBIT 3, WAS
EXECUTED BY THE PARTIES OCTOBER 16, 1969, AND HAS BEEN OPERATIVE AT ALL
TIMES RELEVANT HERETO.
MOST OF THE FACTS IN THE CASE ARE NOT IN DISPUTE. THE NATIONAL LABOR
RELATIONS BOARD IS THE AGENCY DESIGNATED BY CONGRESS TO ADMINISTER AND
ENFORCE THE NATIONAL LABOR RELATIONS ACT. THE MATTERS FOR DECISION FALL
INTO TWO MAIN CATEGORIES, COMPLAINT CASES REFERRED TO AS C CASES, AND
REPRESENTATION CASES REFERRED TO AS R CASES. REPRESENTATION CASES
REPRESENT DETERMINATIONS OF WHETHER A UNION SHALL BE CERTIFIED AS THE
BARGAINING REPRESENTATIVE OF THE EMPLOYEES OF THEIR EMPLOYER, AND, IF
SO, WHICH UNION SHALL BE SO CERTIFIED. COMPLAINT CASES INVOLVE
DETERMINATIONS FOLLOWING THE FILING OF A CHARGE AS TO WHETHER THERE HAS
BEEN A VIOLATION OF THE NATIONAL LABOR RELATIONS ACT. THE INITIAL
HEARING IN COMPLAINT CASES IS CONDUCTED BEFORE A TRIAL EXAMINER AND
APPEAL MAY BE MADE TO A FIVE-MAN BODY DESCRIBED AS THE BOARD. THE BOARD
ALSO HEARS SOME APPEALS IN REPRESENTATION CASES. THE BOARD CONSISTS OF
A CHAIRMAN AND FOUR ASSOCIATE MEMBERS. IT WAS TESTIFIED BY THE
EXECUTIVE SECRETARY OF THE BOARD, MR. OGDEN W. FIELDS, AND MR. EDWARD
B. MILLER, CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD, AS WELL AS
OTHER WITNESSES FOR BOTH PARTIES, THAT THE BOARD STRUCTURE AND THE
RELATIONSHIP OF THE BOARD EMPLOYEES REPRESENTED BY THE ASSOCIATION IS AS
FOLLOWS: THE POSITION OF EXECUTIVE SECRETARY, WHICH HAS FOR A NUMBER OF
YEARS BEEN OCCUPIED BY MR. OGDEN FIELDS, IS A STATUTORY POSITION WITH
THE DUTIES, AS STATED BY MR. FIELDS, OF BEING BASICALLY A CHIEF LAW
CLERK OF THE BOARD. ALL DOCUMENTS THAT ARE FILED WITH THE BOARD ARE
FILED IN THE OFFICE OF THE EXECUTIVE SECRETARY, AND THE OFFICE OF THE
EXECUTIVE SECRETARY KEEPS A RECORD OF CASES, INCLUDING THE STATUS OF
CASES AND MOTIONS UNTIL THE CASES ARE ULTIMATELY DISPOSED OF AND CLOSED.
EVERYTHING FORWARDED TO THE BOARD, AS WELL AS EVERYTHING ISSUED BY THE
BOARD, CLEARS THROUGH THE EXECUTIVE SECRETARY'S OFFICE. THE EXECUTIVE
SECRETARY IS APPOINTED BY THE BOARD CHAIRMAN. ASSIGNMENT OF CASES IS
MADE THROUGH THE EXECUTIVE SECRETARY'S OFFICE. EACH OF THE BOARD
MEMBERS HAS UNDER HIS DIRECTION A NUMBER OF ATTORNEYS WHOSE TITLE IS
LEGAL ASSISTANT. EACH BOARD MEMBER HAS APPROXIMATELY 20 LEGAL
ASSISTANTS UNDER HIS DIRECTION. EACH BOARD MEMBER EMPLOYS HIS OWN
ASSISTANTS, AND THE LEGAL ASSISTANTS ARE ULTIMATELY ANSWERABLE TO THE
INDIVIDUAL BOARD MEMBER UNDER WHOSE DIRECTION THEY WORK.
AS TESTIFIED BY MR. EDWARD B. MILLER, CHAIRMAN OF THE NATIONAL LABOR
RELATIONS BOARD, THE FUNCTION OF A LEGAL ASSISTANT IS TO ASSIST THE
BOARD MEMBER IN HIS DECISION MAKING FUNCTION. THEY PERFORM SOME RECORD
REVIEW FOR THE BOARD MEMBER. THEY HELP SORT OUT THE FACTS. THEY HELP
TO ORGANIZE THE CASE, SO THAT THE BOARD MEMBER MAY BETTER UNDERSTAND IT.
THEY MAY PREPARE A MEMO FOR THE ENTIRE BOARD. THEY ASSIST IN DRAFTING
DECISIONS. THE ASSIST IN DRAFTING DISSENTS AND PERFORM OTHER DUTIES ALL
RELATING TO THE DECISION MAKING FUNCTIONS OF THE INDIVIDUAL BOARD
MEMBERS UNDER WHOSE DIRECTION THEY WORK.
ON OCTOBER 5, 1961, AS DESCRIBED IN A DIRECTIVE TO ALL LEGAL
ASSISTANTS FROM OGDEN W. FIELDS, EXECUTIVE SECRETARY, ASSOCIATION'S
EXHIBIT 1, TIME SCHEDULES WERE ESTABLISHED FOR THE PROCESSING OF CASES
BY LEGAL ASSISTANTS. THE TIME SCHEDULES WERE DIVIDED INTO THREE STAGES.
STAGE 1 WAS DEFINED AS "INITIAL ACTION IN A CASE CONSISTING OF
CIRCULATION OF A DRAFT TO A PANEL FOR SIGNATURE WITHOUT HAVING THE CASE
CONSIDERED AT A SUB-PANEL OR ACTION BY A SUB-PANEL OR A PANEL." STAGE 2
WAS DEFINED AS "INITIAL ACTION TO CIRCULATION". IT WAS STATED THAT THIS
STAGE TOOK THE CASE FROM STAGE 1 TO CIRCULATION OF A DRAFT OF THE
DECISION. THUS, FOR EXAMPLE, THE INITIAL ACTION OF THE SUB-PANEL MIGHT
BE TO REFER IT TO A PANEL FOR ACTION. STAGE NO. 3 WAS DESCRIBED AS
"CIRCULATION OF DRAFT OF THE DECISION". HE STATED THIS TOOK THE CASE
FROM CIRCULATION OF DRAFT TO PANEL SIGNATURE AND CLEARANCE OR BOARD
SIGNATURE AND FULL BOARD CASE. THE TIME SCHEDULES SET FORTH WERE AS
FOLLOWS:
STAGE I - ASSIGNMENT TO INITIAL ACTION
INITIAL ACTION CONSISTS OF:
CIRCULATION OF DRAFT TO BOARD FOR SIGNATURE
(CASE NOT REFERRED TO SUB-PANEL) . . . 3 WEEKS /1/
SUB-PANEL ACTION . . . 3 WEEKS
PANEL ACTION . . . 3 WEEKS
REQUEST TO EXECUTIVE SECRETARY FOR PLACEMENT ON BOARD
AGENDA FOR ORAL REPORT. (REQUEST ACCOMPANIED BY ONE-PAGE
SUMMARY OF FACTS FOR CIRCULATION TO BOARD) . . . 3 WEEKS
SUBMISSION OF FULL MEMO (10 PAGES) OR DRAFT-IN-LIEU-OF
MEMO TO EXECUTIVE SECRETARY FOR BOARD AGENDA . . . 4 WEEKS
STAGE II - INITIAL ACTION TO CIRCULATION
SUB-PANEL TO PANEL . . . 2 WEEKS
SUB-PANEL OR PANEL TO REQUEST TO EXECUTIVE SECRETARY
FOR PLACEMENT ON BOARD AGENDA FOR ORAL REPORT (WITH
ONE-PAGE SUMMARY) . . . 1 WEEK
SUB-PANEL OR PANEL ACTION TO CIRCULATION OF DRAFT
FOR SIGNATURE . . . 2 WEEKS /2/
SUB-PANEL OR PANEL ACTION TO SUBMISSION OF FULL MEMO
(10 PAGES) OR DRAFT-IN-LIEU TO EXECUTIVE SECRETARY FOR
BOARD AGENDA . . . 3 WEEKS
BOARD AGENDA ACTION ON ORAL REPORT OR FULL MEMO TO
CIRCULATION OF DRAFT . . . 3 WEEKS /3/
BOARD AGENDA TO MODIFICATION OF DRAFT-IN-LIEU AND
RECIRCULATION . . . 1 WEEK /4/
STAGE III - CIRCULATION TO APPROVAL
CIRCULATION OF DRAFT TO BOARD SIGNATURE (WHETHER DRAFT
EMANATES FROM BOARD MEMBER, SUB-PANEL, PANEL OR FULL
BOARD) . . . 2 WEEKS
CIRCULATING DISSENT AFTER MAJORITY DRAFT IS APPROVES . . . 2 WEEKS
REVISING APPROVED MAJORITY DRAFT AFTER APPROVED DISSENT
DISSENT . . . 1 WEEK
REVISING APPROVED DISSENT AFTER APPROVED REVISED
MAJORITY . . . 1 WEEK
THESE TIME SCHEDULES WERE INCORPORATED IN THE WORK MANUAL ISSUED TO
LEGAL ASSISTANTS.
TESTIMONY OF WITNESSES FOR BOTH PARTIES WAS RATHER UNIFORMLY TO THE
EFFECT THAT NOTWITHSTANDING THE SPECIFIC TIME DEADLINES, AS SET FORTH IN
THE DIRECTIVE OF OCTOBER 5, 1961, THE ACTUAL PROCEDURE WHICH HAD BEEN
FOLLOWED FOR A NUMBER OF YEARS DID NOT UNIFORMLY ENCOMPASS ADHERENCE TO
THESE TIME SCHEDULES.
LEGAL ASSISTANT GRECO TESTIFIED THAT IN FORMER CHAIRMAN MCCULLOCH'S
UNIT THE LEGAL ASSISTANT WOULD SET THE TIME FOR THE SUB-PANEL AND THE
THREE WEEK'S DEADLINES WERE NOT OBSERVED. LEGAL ASSISTANT GOLDMAN
TESTIFIED THAT IN BOARD MEMBER ZAGORIA'S STAFF THE LEGAL ASSISTANT
DECIDED WHEN HE COULD HANDLE ANOTHER CASE. THE LEGAL ASSISTANT ALSO
TOLD THE SUPERVISOR WHEN HE WANTED THE CASE PUT BEFORE A SUB-PANEL. ON
THE OTHER HAND, LEGAL ASSISTANT WILSON STATED THAT BOARD MEMBER BROWN'S
UNIT ENFORCED A SHORTER TIME SCHEDULE THAN THAT SET FORTH IN THE MANUAL
AND IN THE MEMORANDUM OF OCTOBER 5, 1961. MR. LEFF, WHO WAS CHIEF LEGAL
ASSISTANT OF BOARD MEMBER MCCULLOCH FOR A PERIOD OF SEVEN YEARS,
TESTIFIED THAT THE ASSIGNMENT OF CASES FOR HIS PARTICULAR DIVISION WAS
NORMALLY MADE TO A LEGAL ASSISTANT THROUGH HIS IMMEDIATE SUPERVISOR. HE
WOULD READ THE RECORD, REPORT THE CASE TO THE SUPERVISOR, AND PREPARE
THE CASE FOR DISCUSSION AT A SUB-PANEL. A MEMORANDUM WOULD BE PREPARED
FOR THE SUB-PANEL, AND ON SOME OCCASIONS THE MATTER WOULD BE SO SIMPLE
THAT THE SUB-PANEL COULD BE BY-PASSED, AND WHAT WAS CALLED A
DRAFT-IN-LIEU WOULD BE PREPARED, WHICH WOULD GO TO THE EXECUTIVE
SECRETARY AND BE IMMEDIATELY CIRCULATED TO THE BOARD. MR. LEFF
TESTIFIED THAT THERE WAS SOME ADHERENCE TO THE TIME SCHEDULES AS SET
FORTH IN THE MANUAL ON STAGE 1. HE STATED THAT AS TO STAGE III
PROCEDURES WERE MORE HONORED IN THEIR BRANCH THAN IN THIER OBSERVANCE,
AND THAT THIS HAD ALWAYS BEEN TRUE EVEN SUBSEQUENT TO THE INSTITUTION OF
THE NEW PROCEDURES. HE STATED THAT UNDER THE OLD PROCEDURE WHEN A LEGAL
ASSISTANT NEEDED A NEW CASE THE REQUEST WOULD NORMALLY BE MADE THROUGH
HIS SUPERVISOR TO THE ASSOCIATE CHIEF OF THE SECTION, MR. CAMERON, OR AT
TIMES TO MR. LEFF, AS THE CHIEF OF THE SECTION, AND MR. LEFF, IN TURN,
WOULD CALL THE EXECUTIVE SECRETARY'S OFFICE AND REQUEST THAT HE ASSIGN A
CASE TO THE LEGAL ASSISTANT WHO HAD REQUESTED ONE. AT TIMES HE WOULD
INDICATE THE NATURE OF THE CASE THAT HE THOUGHT THE LEGAL ASSISTANT
SHOULD RECEIVE. THE LEGAL ASSISTANT, IN TESTIFYING, STATED THAT FULL
CONSIDERATION WAS GIVEN UNDER THE OLD PROCEDURE TO THEIR OWN REQUEST FOR
A PARTICULAR TYPE OF CASE. FOR EXAMPLE, IF THEY WANTED A CASE INVOLVING
REFUSAL TO BARGAIN OR A SECONDARY BOYCOTT OR A PARTICULAR SUBJECT
MATTER, THEY WOULD MAKE THE REQUEST AND OFTEN THIS REQUEST WOULD BE
HONORED.
MR. MILLER, UPON TAKING OFFICE AS CHAIRMAN OF THE BOARD, WAS OF THE
OPINION THAT THIS PROCEDURE COULD BE IMPROVED. HE TESTIFIED THAT HE WAS
OF THE OPINION THAT THEY NEEDED TO PLACE RESPONSIBILITY FOR CASE
PROCESSING DIRECTLY UNDER THE LINE MANAGEMENT, I.E., THE CHIEF COUNSELS
AND THEIR STAFFS, SUPERVISORS AND SOME OF THEIR STAFFS, INCLUDING THE
DEPUTY CHIEFS, RATHER THAN TO HAVE THE ASSIGNMENT OF CASES DEPENDENT
UPON ASSIGNMENT OF AN INDIVIDUAL CASE BY THE EXECUTIVE SECRETARY'S
OFFICE. MR. MILLER FELT THAT RATHER THAN HAVING THE CASES ASSIGNED OUT
OF THE EXECUTIVE SECRETARY'S OFFICE SOMETIMES IN COOPERATION WITH A
PARTICULAR SUPERVISOR, THE CHOICE OF ASSIGNMENT OF CASES OUGHT TO BE
VESTED IN THE HEAD STAFF MAN WHO REPORTED TO EACH BOARD MEMBER. HE FELT
THIS WOULD ENABLE THE CHIEF COUNSEL OR DEPUTY CHIEF TO MATCH THE ABILITY
AND AVAILABILITY OF EACH LEGAL ASSISTANT AND THAT SAID SUPERVISORS WOULD
BE IN A BETTER POSITION TO HAVE KNOWLEDGE OF THE AVAILABILITY AND
TALENTS OF THE LEGAL ASSISTANTS THAN WOULD THE EXECUTIVE SECRETARY OR
SOMEONE IMMEDIATELY UNDER HIS DIRECTION. HE FURTHER FELT THAT BY MAKING
THIS CHANGE AND MEETING WITH THE CHIEF COUNSELS AND DEPUTY CHIEF THERE
WAS A REITERATION OF THE URGENCY OF THE CASE DEADLINES. CHAIRMAN MILLER
WAS FURTHER DISTURBED BY THE FACT THAT THE FLOW OF CASES THROUGHOUT THE
YEAR WAS UNEVEN, WITH A VERY SUBSTANTIAL INCREASE IN PRODUCTIVITY IN
JUNE, THE LAST MONTH OF THE FISCAL YEAR. THIS LAST MONTH SPURT WAS IN
ORDER TO MEET THE TARGETS FOR THE YEAR, WHICH HAD BEEN TESTIFIED TO
BEFORE CONGRESS. MR MILLER WAS HOPEFUL THAT WITH A NEW AND DIRECT LINE
OF RESPONSIBILITY, AS HEREINABOVE SET FORTH, IT WOULD BE POSSIBLE TO
AVOID THE SO-CALLED JUNE RUSH AND TO HAVE A MORE EVEN FLOW OF
PRODUCTIVITY.
AFTER CONSIDERING THESE FACTORS, THE BOARD ADOPTED A NEW CASE
HANDLING PROCEDURE. ON JULY 22, 1970, A MEMORANDUM FROM THE BOARD'S
EXECUTIVE SECRETARY, MR. FIELDS, WAS DIRECTED TO SUPERVISORY PERSONNEL
OF THE BOARD ADVISING OF A MEETING TO BE HELD ON JULY 23 AT 1:00 P.M.
FOR EXPLANATION OF REVISED CASE ASSIGNMENT AND DEADLINE PROCEDURES "THE
BOARD HAS ADOPTED AND TO DISCUSS IMPLEMENTATION". AT APPROXIMATELY
11:30 A.M., THURSDAY, JULY 23, 1970, THE BOARD SUBMITTED COPIES OF THE
NEW PROCEDURE TO THE ASSOCIATION AND REQUESTED THAT THE ASSOCIATION
SHOULD MEET WITH IT TO DISCUSS SAID PROCEDURES AT 1:00 P.M. THE SAME
DAY. THE ASSOCIATION AT 1:00 P.M. MET WITH THE BOARD, AND THE
ASSOCIATION ADVISED THE BOARD IT WAS NOT ABLE TO MAKE A COMPLETE
ANALYSIS OF THE NEW PROCEDURE AND UNABLE TO PRESENT ANY DETAILED OR
CAREFULLY CONSIDERED OPINION OF THE NEW PROCEDURE. IMMEDIATELY
FOLLOWING SAID MEETING, ANNOUNCEMENT OF SAID NEW PROCEDURE WAS MADE TO
THE AFFECTED EMPLOYEES. THE BOARD ADMITS THAT THE DECISION WAS MADE
PRIOR TO CONSULTATION WITH THE ASSOCIATION AND DOES NOT ALLEGE THAT IT
BARGAINED WITH THE ASSOCIATION AS TO SAID MATTER.
THE PROCEDURE WAS CHANGED IN THE FOLLOWING RESPECTS. EACH WEEK THE
EXECUTIVE SECRETARY WOULD SEND TO THE VARIOUS STAFFS A GROUP OF CASES,
AND THE ASSIGNMENT WOULD BE MADE BY EITHER THE CHIEF OF THE SECTION OR
HIS DEPUTY. THE CASES HAD TO BE DISPOSED OF BY IMMEDIATE ASSIGNMENT TO
THE LEGAL ASSISTANTS, IRRESPECTIVE OF WHAT CASE LOAD THEY MIGHT HAVE HAD
AT THE TIME THE CASES WERE ASSIGNED TO THE SECRETARY. THIS REPRESENTED
A CHANGE IN THAT PREVIOUSLY THE CASES WERE NOT ASSIGNED UNTIL A
SUPERVISOR WOULD ADVISE THE SECTION CHIEF THAT ONE OF THE LEGAL
ASSISTANTS WAS IN NEED OF A CASE AND THEN THE SECTION CHIEF WOULD
REQUEST A CASE FROM THE EXECUTIVE SECRETARY. CHAIRMAN MILLER TESTIFIED
THAT UNDER THE OLD PRACTICE A LEGAL ASSISTANT WOULD OFTEN, HIMSELF,
DIRECTLY APPROACH THE EXECUTIVE SECRETARY WITH A REQUEST FOR A CASE TO
BE ASSIGNED. MR. EFF TESTIFIED THAT, UNDER THE NEW PROCEDURE, IN THE
SECTION OF WHICH HE WAS CHIEF, FOUR OR FIVE CASES A WEEK WOULD BE
ASSIGNED FROM THE EXECUTIVE SECRETARY'S OFFICE TO HIM FOR ASSIGNMENT. A
LEGAL ASSISTANT WOULD HAVE TO TAKE THE "LUCK OF THE DRAW" AND DID NOT
HAVE THE SAME OPPORTUNITY TO REQUEST A CERTAIN TYPE OF CASE THAT HE HAD
FORMERLY ENJOYED.
ON JULY 22, 1970, A MEMORANDUM WAS PREPARED BY MR. FIELDS ADDRESSED
TO THE CHAIRMAN OF THE BOARD AND VARIOUS SUPERVISORS SETTING FORTH THE
DIFFERENCES IN THE PREVIOUS AND THE CHANGED PROCEDURES. AS TO
ASSIGNMENT OF CASES, IT WAS STATED THAT "THE NUMBER OF CASES TO BE
ASSIGNED TO EACH STAFF WOULD DEPEND UPON THE NUMBER OF CASES AVAILABLE
WITHOUT REGARD TO WHETHER SPECIFIC INDIVIDUAL LEGAL ASSISTANTS HAVE
COMPLETED WORK ON CASES THEN ON THEIR DESKS". IT WAS FURTHER STATED
"THE CASES SHALL BE SELECTED IN THE AUTOMATIC ROTATION OF DATE OF
RECEIPT EXCEPT THAT THE ASSOCIATE EXECUTIVE SECRETARY IN CONSULTATION
WITH THE CHIEF COUNSEL OR DEPUTY STAFF DIRECTOR MAY DEPART FROM STRICT
ROTATION FOR REASONS, SUCH AS, WHERE NECESSARY TO MAINTAIN A MIX OF
COMPLEXITY OF ISSUES AND LENGTH OF RECORD, TO RETURN A CASE TO THE STAFF
FROM WHICH IT ORIGINATED, TO PAIR CASES OF LIKE ISSUES TO SAVE RESEARCH
TIME (ALTHOUGH CONSIDERATION SHOULD ALSO BE GIVEN TO THE DESIRABILITY OF
A FRESH POINT OF VIEW WHICH A DIFFERENT STAFF MIGHT CONTRIBUTE OR TO
EXPEDITE THE EXCEPTIONAL CASE". AS TO STAGE I, IT WAS STATED THAT,
EXCEPT IN THE ABNORMAL CASE, DUE DATE FOR INITIAL ACTION SHOULD NOT
EXCEED THE CURRENT DEADLINES AND WHEREVER POSSIBLE SHOULD BE A PERIOD OF
SHORTER DURATION. AS TO STAGE II, IT WAS STATED "AT THE TIME OF INITIAL
ACTION THE SUB-PANEL SHALL DETERMINE THE ALLOWABLE TIME IN WHICH THE
REQUESTED DOCUMENTS MUST BE FURNISHED WITH CURRENT DEADLINES SERVING AS
A GUIDE". AT THAT TIME, THERE WAS NO SPECIFIC CHANGE IN TIME DEADLINES
AT STAGE III. IT WAS PROVIDED THAT IN THE EVENT A REPORT FROM A LEGAL
ASSISTANT WAS OVERDUE THE LEGAL ASSISTANT SHOULD APPEAR BEFORE A
SUB-PANEL AND EXPLAIN THE REASON THAT THE SCHEDULE HAD NOT BEEN MET.
LEGAL ASSISTANT HOWARD B. JOHNSON TESTIFIED THAT HE OBJECTED TO THE
RIGIDITY OF THE TIME SYSTEM; THAT IF HE DID NOT HAVE A DRAFT READY BY
THE DEADLINE, IT WAS NECESSARY TO GO TO THE SUB-PANEL TO EXPLAIN WHY THE
CASE WAS OVERDUE AND THAT THE SUB-PANEL HAD NO DISCRETION WHATSOEVER.
HE STATED THEY HAD NO AUTHORITY TO EXTEND THE TIME, WHICH HE DESCRIBED
AS A DEVIATION FROM FORMER PROCEDURES. HE COMPLAINED THAT TO HIM THIS
WAS VER DEMEANING. HE STATED, HOWEVER, THAT THIS PRACTICE HAD BEEN
AMENDED AND THAT NOW THE SUB-PANELS HAVE THE CAPACITY TO GRANT AN
EXTENSION TO A LEGAL ASSISTANT WHO HAS DIFFICULTY WITH A CASE.
IT WILL BE NOTED FROM THE ABOVE STATED HISTORY OF THE CASE THAT
INITIALLY HEARING WAS DENIED ON THE GROUND THAT SECTION 11(C) OF THE
EXECUTIVE ORDER COVERED THE ISSUES IN THIS CASE AND THAT THE PROPER
AVENUE OF APPEAL WAS TO THE FEDERAL LABOR RELATIONS COUNCIL, RATHER THAN
TO THE HEARING PROCESS BEFORE A HEARING EXAMINER. SECTION 11(C)
PROVIDES IN PART:
"IF IN CONNECTION WITH NEGOTIATIONS, AN ISSUE DEVELOPS AS TO WHETHER
A PROPOSAL IS CONTRARY TO LAW, REGULATIONS, CONTROLLING AGREEMENT, OR
THIS ORDER AND, THEREFORE, NOT NEGOTIABLE, IT SHALL BE RESOLVED AS
FOLLOWS."
THE ASSISTANT SECRETARY OVERRULED THE DISMISSAL OF THE REQUEST FOR
HEARING AND REFERRED THE ISSUE OF WHETHER OR NOT IT WAS A MATTER FOR THE
FEDERAL LABOR RELATIONS COUNCIL TO THE HEARING EXAMINER AS A PART OF HIS
DETERMINATION IN THE CASE. IT APPEARS TO THE HEARING EXAMINER THAT
SECTION 11(C) DOES NOT DEPRIVE THE HEARING EXAMINER OF JURISDICTION OF
THIS CASE. IT WILL BE NOTED THAT THE FIRST WORDS OF THE ABOVE QUOTED
PROVISION ARE: "IF IN CONNECTION WITH NEGOTIATIONS". IT WILL BE NOTED
THAT THIS ENTIRE CASE HINGES ON AN ALLEGATION OF REFUSAL TO NEGOTIATE,
RATHER THAN CONSTITUTING ISSUES ARISING OUT OF NEGOTIATIONS. THE
HEARING EXAMINER IS, THEREFORE, OF THE OPINION THAT SECTION 11(C) DOES
NOT GOVERN THIS CASE AND THAT THE ASSOCIATION WAS ENTITLED TO A HEARING
BEFORE A HEARING EXAMINER.
THE NATIONAL LABOR RELATIONS BOARD CONCEDES THAT IT DID NOT BARGAIN
WITH THE ASSOCIATION PRIOR TO INSTITUTING THE CHANGES IN THE CASE
HANDLING PROCEDURE. THE BOARD, HOWEVER, TAKES THE POSITION THAT UNDER
THE EXECUTIVE ORDER IT WAS NOT REQUIRED TO BARGAIN, BECAUSE THE CHANGES
INITIATED BY THE BOARD ALL FALL WITHIN THE AREA OF MANAGEMENT
PREROGATIVES AS SET FORTH IN THE EXECUTIVE ORDER. SECTION 19(A)(1) AND
(6) OF THE EXECUTIVE ORDER MAKES IT AN UNFAIR LABOR PRACTICE FOR AN
AGENCY TO "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER" AND "REFUSE TO CONSULT,
CONFER, OR NEGOTIATE WITH THE LABOR ORGANIZATION AS REQUIRED BY THIS
ORDER". THE NATIONAL LABOR RELATIONS BOARD ADMITS IT DID NOT BARGAIN
UNDER THE ABOVE PROVISIONS OF THE ACT. THEREFORE, THE ISSUE FOR
DETERMINATION IS WHETHER THE CHANGES INITIATED BY THE NATIONAL LABOR
RELATIONS BOARD CONSTITUTE SUBJECT MATTER CONCERNING WHICH THE EXECUTIVE
ORDER REQUIRES AN AGENCY TO BARGAIN.
SECTION 11(B) OF THE EXECUTIVE ORDER STATES IN PART:
HOWEVER, THE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS
WITH RESPECT TO THE MISSION OF AN AGENCY, ITS BUDGET, ITS ORGANIZATION,
THE NUMBER OF EMPLOYEES, AND THE NUMBERS, TYPES, AND GRADES OF
POSITIONS, OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT WORK PROJECT
OR TOUR OF DUTY, THE TECHNOLOGY OF PERFORMING ITS WORK, OR ITS INTERNAL
SECURITY PRACTICES. THIS DOES NOT PRECLUDE THE PARTIES FROM NEGOTIATING
AGREEMENTS, PROVIDING APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY
AFFECTED BY THE IMPACT OF REALIGNMENT OF WORK FORCES OR TECHNOLOGICAL
CHANGES.
SECTION 12 OF THE EXECUTIVE ORDER PROVIDES:
EACH AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION IS SUBJECT
TO THE FOLLOWING REQUIREMENTS:
(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT IN ACCORDANCE
WITH THE APPLICABLE LAW AND REGULATIONS:
(1) TO DIRECT EMPLOYEES OF THE AGENCY;
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN AND RETAIN EMPLOYEES TO
POSITIONS WITHIN THE AGENCY AND TO SUSPEND, DEMOTE, OR DISCHARGE, OR
TAKE OTHER DISCIPLINARY ACTION AGAINST EMPLOYEES;
(3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
OTHER LEGITIMATE REASONS;
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATION ENTRUSTED
TO THEM;
(5) TO DETERMINE THE METHOD, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE CONDUCTED; AND
(6) TO TAKE WHATEVER ACTION AS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN SITUATION OF EMERGENCY.
EXECUTIVE ORDER 11491 WAS ISSUED OCTOBER 29, 1969, AND, THEREFORE, IS
OF COMPARATIVE RECENT ORIGIN. THE HEARING PROCESS IS TOO RECENT FOR A
SUBSTANTIAL BODY OF PRECEDENT TO HAVE ARISEN. IN THE LIGHT OF THIS
FACT, COUNSEL FOR BOTH PARTIES HAVE MADE A NUMBER OF CITATIONS TO THE
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AND TO THE COURTS IN
INTERPRETATION OF THE NATIONAL LABOR RELATIONS ACT. THERE IS SOME
ANALOGY BETWEEN SOME OF THE PROVISIONS OF THE NATIONAL LABOR RELATIONS
ACT AND THE EXECUTIVE ORDER; HOWEVER, THE ANALOGY IS NOT COMPLETE. THE
AREA OF MANAGEMENT PREROGATIVE IS UNDER THE NATIONAL LABOR RELATIONS
ACT. IN VIEW OF THIS FACT, DECISIONS OF THE NATIONAL LABOR RELATIONS
BOARD OR OF THE COURTS IN INTERPRETATIONS OF THE NATIONAL LABOR
RELATIONS ACT MAY, UNDER CERTAIN CIRCUMSTANCES, BE PERSUASIVE IN THIS
CAUSE BUT ARE NOT BINDING UPON THE HEARING EXAMINER. THE ASSISTANT
SECRETARY SO HELD IN THE CASE OF CHARLESTON NAVAL SHIPYARD AND FEDERAL
EMPLOYEES METAL TRADES COUNCIL, GERR 21:5003. IN INTERPRETING THE
EXECUTIVE ORDER, THE HEARING EXAMINER FEELS THAT HE MUST RESORT TO THE
WELL ESTABLISHED PRINCIPLE OF LAW THAT WHERE A PROVISION IN A LAW IS
AMBIGUOUS IF TAKEN OUT OF THE CONTEXT OF THE ENTIRE ACT, IT IS NECESSARY
TO EXAMINE SAID AMBIGUOUS PROVISION IN THE LIGHT OF THE ENTIRE ACT AND
THE PURPOSES THEREIN SET FORTH TO MAKE A PROPER INTERPRETATION OF SAID
AMBIGUITY. SECTION 12(5) OF THE EXECUTIVE ORDER STATES THAT AN AGENCY
RETAINS THE RIGHT:
TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE CONDUCTED.
THE HEARING EXAMINER IS OF THE OPINION THAT, IF THIS CLAUSE IS GIVEN
ITS BROADEST POSSIBLE INTERPRETATION, IT WOULD IN LARGE MEASURE REMOVE
FROM THE AREA OF BARGAINING ALMOST ALL CONCEIVABLE SUBJECTS AND THAT,
THEREFORE, SUCH A WIDE INTERPRETATION IS NOT JUSTIFIED. A SIMILAR
APPROACH MUST BE MADE TO SECTION 12(4) WHICH READS:
TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED TO
THEM.
IT COULD, OF COURSE, BE INSISTED THAT ANY ACTION OF MANAGEMENT IS
DEVISED TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATION, AND IT
WOULD NOT BE PRESUMED THAT THOSE ADMINISTERING ANY ACT WOULD INITIATE
POLICIES DESIGNED TO BRING ABOUT INEFFICIENCY IN GOVERNMENT.
IT WOULD APPEAR TO THE HEARING EXAMINER THAT IN ADOPTING THE NEW CASE
HANDLING PROCEDURE THE BOARD, IN EFFECT, MADE THREE CHANGES, AS FOLLOWS:
1. THE PERSONS WHO MADE WORK ASSIGNMENTS AND SUPERVISED THE
ENFORCEMENT OF TIME SCHEDULES WERE IN SOME RESPECTS CHANGED.
2. PRIOR TO INSTITUTION OF THE NEW CASE HANDLING PROCEDURE, THE
LEGAL ASSISTANTS' REQUESTS FOR A CERTAIN TYPE OF WORK ASSIGNMENT WERE ON
SOME OCCASIONS HONORED, BUT FOLLOWING ADOPTION OF THE NEW CASE HANDLING
PROCEDURE, THE LEGAL ASSISTANTS WERE REQUIRED TO TAKE WORK ASSIGNMENTS
IN A ROTATION ORDER.
3. THE TIME SCHEDULES FOR THE HANDLING OF CASES ASSIGNED WERE IN
SOME RESPECTS CHANGED.
THE BOARD'S PROCEDURE PRIOR TO THE ADOPTION OF THE NEW PROCEDURE WAS
TO HAVE THE CASES ASSIGNED TO THE LEGAL ASSISTANTS OUT OF THE EXECUTIVE
SECRETARY'S OFFICE, SOMETIMES IN COOPERATION WITH A UNIT SUPERVISOR.
THE METHOD OF ASSIGNMENT WAS CHANGED TO HAVE THE EXECUTIVE SECRETARY
ASSIGN CASES TO THE CHIEF COUNSEL OR DEPUTY CHIEF COUNSEL OFEACH UNIT.
THE CHIEF COUNSEL OR DEPUTY CHIEF WOULD, IN TURN, IMMEDIATELY ASSIGN THE
CASES TO THE LEGAL ASSISTANTS RATHER THAN FOR A LEGAL ASSISTANT TO
REQUEST A CASE. CHAIRMAN MILLER STATED THAT HE WAS OF THE OPINION THE
ASSIGNMENT AND RESPONSIBILITY FOR SUPERVISION OF DEADLINES SHOULD REST
WITH THE UNIT SUPERVISORS WHO HAD MORE DIRECT KNOWLEDGE OF THE SITUATION
IN THE UNIT THAN DID THE EXECUTIVE SECRETARY.
IT IS CONTEMPLATED BY THE EXECUTIVE ORDER THAT SUPERVISORS SHOULD BE
A PART OF MANAGEMENT. SECTION 10(A)(1) PROVIDES THAT A UNIT SHALL NOT
BE ESTABLISHED IF IT INCLUDES "ANY MANAGEMENT OFFICIAL OR SUPERVISOR".
IT IS, THEREFORE, APPARENT THAT SUPERVISORS ARE CONSIDERED A PART OF
MANAGEMENT UNDER MANAGEMENT'S DIRECTION AND CONTROL WITH INTEREST
SEPARATE AND IDENTIFIABLE FROM THAT OF THE EMPLOYEES IN THE UNIT. IN
THIS RESPECT, THE EXECUTIVE ORDER IS ANALOGOUS TO THE NATIONAL LABOR
RELATIONS ACT IN WHICH IT HAS BEEN REPEATEDLY HELD THAT THE EMPLOYMENT,
DISCHARGE, AND ASSIGNMENT OF DUTIES TO SUPERVISORS IS EXCLUSIVELY WITHIN
THE AREA OF MANAGEMENT'S PREROGATIVES. THE HEARING EXAMINER IS,
THEREFORE, OF THE OPINION THAT ANY SHIFT IN THE CHANNELS OF SUPERVISION
UNDER THE NEW CASE HANDLING PROVISION WAS NOT A MATTER CONCERNING WHICH
THE BOARD WAS REQUIRED TO BARGAIN WITH THE ASSOCIATION. IT ALSO MAY BE
SAID THAT THE DETERMINATION OF THE METHOD OF SUPERVISION AND CASE
ASSIGNMENTS COULD WELL FALL UNDER THE PROVISIONS OF SECTION 11(B)
STATING:
HOWEVER, THE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS
WITH RESPECT TO . . . ITS ORGANIZATION.
THE WEIGHT OF THE EVIDENCE, ESTABLISHES TO THE SATISFACTION OF THE
HEARING EXAMINER THAT, PRIOR TO THE INSTITUTION OF THE NEW CASE HANDLING
PROCEDURE, THE ATTORNEYS IN THE BARGAINING UNIT WOULD ON OCCASION MAKE
REQUEST FOR A CERTAIN TYPE OF CASE. FOR EXAMPLE, PERHAPS THEY DESIRED A
CASE INVOLVING THE ISSUE OF REFUSAL TO BARGAIN OR A CASE INVOLVING
SECONDARY BOYCOTT, ETC. THE EVIDENCE WOULD APPEAR TO ESTABLISH THAT,
WHILE ON SOME OCCASIONS THESE REQUESTS WERE HONORED, THE SUPERVISORS
WERE NOT REQUIRED TO HONOR SUCH REQUESTS AND ONLY ON OCCASTION DID THEY
DO SO. IT WAS A MATTER WITHIN THE SUPERVISOR'S DISCRETION UNDER ALL OF
THE CONDITIONS AND CIRCUMSTANCES OF THE CASE LOAD AND CIRCUMSTANCES OF
THE ATTORNEYS ABLE TO PROCESS THAT CASE LOAD. THE HEARING EXAMINER IS
OF THE OPINION THAT THE ASSOCIATION DOES NOT HAVE THE RIGHT TO INSIST
THAT THE EMPLOYEE OF THE BOARD, HIMSELF, HAS THE PRIVILEGE OF
DETERMINING THE PRECISE WORK WHICH WILL BE ASSIGNED TO SAID EMPLOYEE.
THE CHANGED CASE PROCEDURE DID NOT CONSTITUTE A CHANGE IN BASIC DUTIES
OF THE EMPLOYEES NOR IN THE NATURE OF THE CASES HANDLED NOR IN THEIR
BASIC JOB RESPONSIBILITIES. THE ATTORNEYS IN THE UNIT HAVE IN THE PAST
HANDLED, AT ONE TIME OR ANOTHER, ALL TYPES OF CASES; AND, FOLLOWING THE
ADOPTION OF THE NEW CASE HANDLING PROCEDURE, THEY CONTINUED TO DO SO.
THE FACT THAT THE SUPERVISOR, ON OCCASION, HONORED A REQUEST FOR AN
EMPLOYEE FOR A PARTICULAR TYPE OF WORK ASSIGNMENT DID NOT MEAN THAT AT
ANY TIME THE SUPERVISORS WERE REQUIRED OR OBLIGATED TO HONOR SUCH A
REQUEST. FOR THE HEARING EXAMINER TO HOLD THAT AN EMPLOYEE OF THE BOARD
HAS A RIGHT TO DEMAND A PARTICULAR TYPE OF CASE BE ASSIGNED TO SAID
EMPLOYEE AND THAT MANAGEMENT MUST YIELD TO SUCH DICTATION WOULD BE TO
REQUIRE MANAGEMENT TO ABDICATE ITS MANAGEMENT FUNCTION AND TO TURN SAID
FUNCTION OVER TO ITS INDIVIDUAL EMPLOYEES. CERTAINLY, THIS HEARING
EXAMINER DOES NOT FEEL QUALIFIED TO SUBSTITUTE HIS JUDGMENT FOR THAT OF
THE BOARD AND TO DIRECT THE CIRCUMSTANCES UNDER WHICH THE BOARD MUST
GIVE A PARTICULAR TYPE OF CASE TO AN EMPLOYEE.
IN THE CASE OF LITTLE ROCK DOWNTOWNER, INC., 148 NLRB 717, THE MOTEL
HAD HAD COMPLAINTS MADE BY CUSTOMERS THAT THE MAIDS WERE NOT LEAVING THE
ROOM IN A SATISFACTORY CONDITION. IN ORDER TO ALLEVIATE THIS SITUATION,
THE MOTEL REQUIRED THE MAIDS TO WASH THE INSIDE OF WINDOWS DAILY. THERE
WAS SOME EVIDENCE THAT THIS WAS REQUIRED BY WORKING MANUAL, BUT IT WAS
INSISTED THE MANUAL HAD BEEN ABANDONED. THE TRIAL EXAMINER HELD THAT
THIS ACTION HAVING BEEN TAKEN WITHOUT CONSULTATION WITH THE UNION THERE
HAD BEEN A REFUSAL TO BARGAIN. THE BOARD, HOWEVER, IN REVERSING THE
TRIAL EXAMINER SAID:
"WE ARE NOT PERSUADED IN THE FIRST PLACE THAT THE RECORD
SUBSTANTIALLY SUPPORTS THE TRIAL EXAMINER'S FACTUAL PREDICATE FOR
FINDING UNLAWFUL UNILATERAL ACTION; NAMELY, THAT RESPONDENT EFFECTED A
CHANGE IN THE MAIDS' CONDITION OF EMPLOYMENT . . . IN ANY EVENT EVEN IF
WE WERE TO ASSUME THE VALIDITY OF THE TRIAL EXAMINER'S FACTUAL PREMISE
THAT PAINTER'S WINDOW WASHING INSTRUCTIONS TO THE MAID CONSTITUTED IN
EFFECT A REVERSAL OF AN EARLIER ABANDONED MANUAL RULE, WE WOULD NOT BE
DISPOSED SIMPLY BECAUSE THE WORK WAS AFFECTED UNILATERALLY TO BASE AN
8(A)(5) VIOLATION FINDING THEREON." THEREON." /5/
THIS TYPE OF WORK ORDER DOES NOT EXCEED THE COMPASS OF THE JOB DUTIES
THE AFFECTED EMPLOYEES WERE HIRED TO PERFORM AND FALLS WITHIN THE NORMAL
AREA OF DETAILED, DAY-TO-DAY OPERATING DECISIONS RELATING TO THE MANNER
IN WHICH WORK IS TO BE PERFORMED. IN OUR VIEW IT IS NOT OF SUCH A
CHARACTER AS TO REQUIRE UNDER GOOD FAITH BARGAINING STANDARD PRIOR
NOTICE TO, AND CONSULTATION WITH, THE UNION."
THE BOARD FURTHER HELD THAT IT MIGHT BE A MATTER FOR PROCESSING UNDER
GRIEVANCE PROCEDURES. IN THE CASE OF IRVINGTON MOTORS, INC., AND RETAIL
CLERKS, 147 NLRB 565, THE NATIONAL LABOR RELATIONS BOARD HELD:
"WE DO NOT BELIEVE THAT THE REQUIREMENT THAT SALESMEN MAKE FIVE TRUCK
TELEPHONE CALLS PER DAY WAS SO CLEARLY BEYOND THE NORMAL MANAGEMENT
FUNCTION AS TO REQUIRE PRIOR NOTICE TO, AND CONSULTATION WITH, THE
UNION."
NOTWITHSTANDING THE DIFFERENCES IN THE EXECUTIVE ORDER AND IN THE
NATIONAL LABOR RELATIONS ACT, THE HEARING EXAMINER IS OF THE OPINION
THAT THERE IS SOME ANALOGY IN THE ABOVE DECISIONS FROM THE PRIVATE
SECTOR TO THE CASE HERE AT ISSUE. THE HEARING EXAMINER IS OF THE
OPINION THAT IN THE INSTANT CASE THE DETERMINATION OF WHICH CASES TO
ASSIGN ON WHICH OCCASIONS TO THE ATTORNEYS IS EVEN MORE CLEARLY A MATTER
OF MANAGEMENT PREROGATIVE. IN THE CASES CITED, THERE WERE SOME
ADDITIONAL WORK DUTIES ASSIGNED. HOWEVER, IN THE CASE AT BAR THE SAME
TYPE WORK DUTIES WERE PREVIOUSLY ASSIGNED, AND THE ONLY ALTERATION WAS
IN THE PARTICULAR TYPE OF CASE THAT MIGHT BE ASSIGNED UNDER CERTAIN
CIRCUMSTANCES. IT IS ADHERENT IN THE RIGHTS OF MANAGEMENT THAT IT MUST
MAKE THE WORK ASSIGNMENTS, RATHER THAN TO HAVE AN INDIVIDUAL EMPLOYEE ON
A PARTICULAR OCCASION HIMSELF DICTATE THE WORK ASSIGNMENT. THE HEARING
EXAMINER IS OF THE OPINION THAT EVEN UNDER A NARROW CONSTRUCTION OF
SECTION 12(B)(5) THIS TYPE OF MANAGEMENT PREROGATIVE IS COVERED BY SAID
SECTION:
TO DETERMINE THE METHOD, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE CONDUCTED.
SUCH ACTION ALSO IS RESERVED TO MANAGEMENT IN SECTION 12(B)(1) WHICH
RESERVES TO MANAGEMENT THE RIGHT TO "DIRECT EMPLOYEES OF THE AGENCY".
THE HEARING EXAMINER IS OF THE OPINION THAT THE ISSUE OF WHETHER OR
NOT THE NATIONAL LABOR RELATIONS BOARD WAS REQUIRED TO BARGAIN WITH THE
ASSOCIATION AS TO ANY CHANGE IN TIME DEADLINES PRESENTS A MUCH MORE
SERIOUS PROBLEM. IT IS INSISTED BY THE BOARD THAT NO ACTUAL CHANGES
WERE MADE UNDER THE SO-CALLED NEW CASE HANDLING PROCEDURES. THE HEARING
EXAMINER IS OF THE OPINION THAT THE EVIDENCE RATHER CONSISTENTLY
ESTABLISHES TO THE CONTRARY. TIME SCHEDULES WERE IN 1961 ENUNCIATED BY
THE BOARD, AND THESE TIME SCHEDULES WERE SUBSEQUENTLY INCORPORATED IN
THE BOARD'S WORK MANUAL. IT WOULD APPEAR, HOWEVER, THAT THESE TIME
DEADLINES WERE FOR SOME YEARS PRECEDING THE INSTITUTING OF A NEW CASE
HANDLING PROCEDURE HONORED IN THEIR BREACH. MR. LEFF TESTIFIED THAT
THERE WAS SOME ADHERENCE TO THESE TIME SCHEDULES. HOWEVER, IT WILL BE
NOTED THAT THE ATTORNEYS WHO WERE IN THE BARGAINING UNIT WHO TESTIFIED
IN THE CASE UNIFORMLY TESTIFIED THAT THERE WAS A WIDE VARIATION IN THE
EXPECTED TIME SCHEDULES AS BETWEEN THE VARIOUS BOARD UNITS. MEMBER
BROWN'S UNIT WAS HELD TO AN EVEN MORE STRINGENT TIME SCHEDULE THAN THAT
SET FORTH IN THE MANUAL. ON THE OTHER HAND, TESTIMONY IN THE RECORD
ESTABLISHES THAT FORMER CHAIRMAN MCCULLOCH'S UNIT IGNORED THE TIME
SCHEDULES AND THAT THERE WAS NO SPECIFIC DEADLINE ENFORCED FOR THE
MEMBERS OF THE UNIT, THE ONLY CHECK FROM A TIME STANDPOINT BEING THAT IF
A CASE GOT UNDULY OLD INQUIRY WOULD BE MADE ABOUT IT. THE OTHER THREE
BOARD MEMBERS' UNITS APPARENTLY, IN VARYING DEGREES, RANGED BETWEEN THE
POLICY IN FORMER CHAIRMAN MCCULLOCH'S UNIT AND THE UNIT OF BOARD MEMBER
BROWN. THE HEARING EXAMINER IS OF THE OPINION THAT, WHETHER THE NEW
CASE HANDLING PROCEDURE BE COMPARED TO THE WRITTEN INSTRUCTIONS IN THE
MANUAL OR TO THE ACTUAL PRACTICE WHICH HAD FOR SOME YEARS BEEN ADOPTED,
THERE WERE CHANGED IN TIME DEADLINES UNDER THE NEW PROCEDURE. THE
CHANGES AS DESCRIBED IN EXECUTIVE SECRETARY FIELDS' MEMORANDUM OF JULY
22, 1970, REVEAL THE FOLLOWING:
IN STAGE I "EXCEPT IN THE ABNORMAL CASE, THE DUE DATE FOR INITIAL
ACTION SHALL NOT EXCEED CURRENT DEADLINES AND WHEREVER POSSIBLE SHALL BE
A PERIOD OF SHORTER DURATION".
THE ATTORNEYS IN THE BARGAINING UNIT, PRIOR TO THE CHANGE IN CASE
HANDLING PROCEDURES, HAD CERTAIN DEFINITE DEADLINES UNDER THE MANUAL,
WHICH UNDER THE NEW PROCEDURES WOULD BE A MAXIMUM. UNDER ACTUAL
PRACTICE MOST OF THE EMPLOYEES DID NOT HAVE A DEFINITE HARD AND FAST
DEADLINE PRIOR TO THE ADOPTION OF THE NEW PROCEDURE. THE CHANGE ABOVE
QUOTED AND STAGE I, WHILE PROVIDING THAT IN CERTAIN INSTANCES THE
ATTORNEY WOULD HAVE AS MUCH OF A DEADLINE AS THAT SET FORTH IN THE
MANUAL, ALSO PROVIDED THAT WHEREVER POSSIBLE HE WOULD BE GIVEN A SHORTER
DEADLINE. THIS PROVISION "WHEREVER POSSIBLE SHALL BE A PERIOD OF
SHORTER DURATION" DOES IN THE OPINION OF THE HEARING EXAMINER CONSTITUTE
A MATERIAL CHANGE IN THE WORK REQUIREMENTS IF COMPARED TO THE MANUAL AND
THE SETTING OF A DEFINITE MAXIMUM WITH SETTING OF A SHORTER MAXIMUM
WHENEVER POSSIBLE DOES CONSTITUTE A MATERIAL CHANGE AS TO ACTUAL
PRACTICE.
THE SAID MEMORANDUM ESTABLISHES THAT AS TO STAGE II:
AT THE TIME OF INITIAL ACTION THE SUB-PANEL SHALL DETERMINE THE
ALLOWABLE TIME IN WHICH THE REQUESTED DOCUMENT MUST BE FURNISHED WITH
CURRENT DEADLINE SERVING AS A GUIDE.
SO FAR AS THE DEADLINES PROVIDED IN THE MANUAL ARE CONCERNED, THEY
WERE DEFINITE IN THE MANUAL, WHEREAS IN STAGE II UNDER THE REVISED
PROCEDURE THEY WERE TO BE ONLY A GUIDE WITH THE SUB-PANEL HAVING THE
DISCRETION TO MAKE ITS OWN DETERMINATION AS TO THE DEADLINE PROCEDURE IN
STAGE II ON AN INDIVIDUAL BASIS. AGAIN, IT WILL BE NOTED THAT, UNDER
THE ACTUAL PRACTICE PRIOR TO THE REVISION IN PROCEDURES, THERE WAS A
GREAT VARIATION BETWEEN THE VARIOUS UNITS AS TO DEADLINES WITH SOME
UNITS, SUCH AS, FORMER CHAIRMAN MCCULLOCH'S UNIT, HAVING OPERATED
WITHOUT ENFORCEMENT OF SPECIFIC OVERALL DEADLINES. IN THE OPINION OF
THE HEARING EXAMINER WHETHER THE REVISED PROCEDURES BE COMPARED TO THE
PROCEDURES SET FORTH IN THE MANUAL OR TO ACTUAL OPERATION, THERE WAS A
CHANGE IN THE PROCEDURES BROUGHT ABOUT BY THE RULES AS SET FORTH IN THE
MEMORANDUM OF JULY 22, 1970. NO CHANGES IN DEADLINES APPEAR TO HAVE
BEEN MADE AS TO STAGE III.
THERE BEING A CHANGE IN THE TIME DEADLINES FOR THE MEMBERS OF THE
UNITS, THE ISSUE FOR DETERMINATION IS WHETHER THE BOARD WAS AUTHORIZED
TO MAKE SUCH CHANGE AS A MATTER OF MANAGEMENT'S PREROGATIVE WITHOUT
PRIOR CONSULTATION WITH THE ASSOCIATION OR WHETHER SUCH ACTION
CONSTITUTED A REFUSAL TO BARGAIN IN VIOLATION OF THE EXECUTIVE ORDER.
THE HEARING EXAMINER IS OF THE OPINION THAT A CHANGE IN TIME DEADLINES
OF THE MEMBERS OF THE BARGAINING UNIT IS NOT PROTECTED BY THE
MANAGEMENT'S PREROGATIVE PROVISIONS OF THE EXECUTIVE ORDER BUT IS A
PROPER SUBJECT FOR COLLECTIVE BARGAINING. THERE WAS CONSIDERABLE
EVIDENCE IN THE RECORD, PARTICULARLY FROM THE TESTIMONY OF BOARD
CHAIRMAN MILLER AND EXECUTIVE SECRETARY FIELDS, THAT THE CHANGE IN
PROCEDURE HAS IN THE MAIN ACCOMPLISHED ITS OBJECTIVE, THAT THE CASE
PRODUCTION HAS SPEEDED UP AND GENERALLY IMPROVED, AND THAT THE PUBLIC IS
BEING BETTER SERVED. IT IS NOT, HOWEVER, FOR THE HEARING EXAMINER TO
DETERMINE THE WISDOM OR LACK OF WISDOM OF THE ACTION OF THE BOARD. TO
DO SO WOULD BE FOR THE HEARING EXAMINER TO SUBSTITUTE HIS OWN JUDGMENT
FOR THAT OF THE BOARD, AND THE BOARD RATHER THAN THE HEARING EXAMINER
HAS BEEN AUTHORIZED BY CONGRESS TO DETERMINE THE WISDOM OF POLICY
DECISIONS. THE ONLY ISSUE BEFORE THE HEARING EXAMINER IS ONE OF THE
LEGALITY OF THE BOARD'S ACTION IN THE LIGHT OF THE REQUIREMENT OF THE
EXECUTIVE ORDER. THE HEARING EXAMINER THEREFORE, EXPRESSES NO OPINION
AS TO THE WISDOM OR LACK OF WISDOM OF THE ACTIONS OF THE BOARD IN THIS
CASE. IN THE EVENT, HOWEVER, THAT THERE HAD BEEN DEADLINES SET, WHICH
WERE NOT PRACTICAL OR WHICH WERE UNDULY RESTRICTIVE, IT IS ENTIRELY
POSSIBLE THAT BY DISCUSSING THE MATTER WITH THE REPRESENTATIVES OF THOSE
EMPLOYEES WHO WOULD BE OPERATING UNDER SUCH SCHEDULES, THE DEFECTS IN
THE PLAN COULD HAVE BEEN POINTED OUT BY THE EMPLOYEES AND THE BOARD
ADJUSTED ITS PLAN TO WHATEVER MIGHT HAVE BEEN THE REALITIES AND THE
PRACTICALITIES OF THE SITUATION. THIS IS ONE OF THE REASONS THAT THE
EXECUTIVE ORDER WAS ISSUED AND THIS IS INHERENT IN A COLLECTIVE
BARGAINING PROCESS. THE EMPLOYEES PERFORMING THE WORK TASKS MIGHT VERY
WELL BE IN A POSITION DUE TO THEIR OWN EXPERIENCE IN THE MATTER TO MAKE
SUGGESTIONS TO THEIR BARGAINING REPRESENTATIVE WHICH WOULD NOT ONLY BE
IN THE INTERESTS OF THE EMPLOYEES INVOLVED BUT ALSO WOULD BE IN THE
PUBLIC INTEREST AND IN THE INTEREST OF A MORE EFFICIENT OPERATION.
IT IS APPARENT TO THE HEARING EXAMINER THAT THE ISSUE OF TIME
SCHEDULES DOES NOT FALL UNDER THE MANAGEMENT FUNCTION PROVISIONS OF
SECTION 11(B) INSOFAR AS THEY RELATE TO MISSION OF AN AGENCY, ITS
BUDGET, THE NUMBER OF EMPLOYEES, AND THE NUMBERS, TYPES, AND GRADES OF
POSITIONS, OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK
PROJECT, OR TOUR OF DUTY, OR ITS INTERNAL SECURITY PRACTICES. THE NEW
CASE PROCEDURE DID NOT INCREASE OR DECREASE THE NUMBER OF EMPLOYEES, NOR
CHANGE GRADES OR TYPES OF POSITIONS. IT DID NOT CHANGE THE BASIC TYPE
OF WORK PERFORMED BY THE EMPLOYEES, NOR CHANGE THEIR TOURS OF DUTY, AND
IT IN NO WAY RELATED TO INTERNAL SECURITY. THE HEARING EXAMINER IS OF
THE OPINION THAT TIME SCHEDULES ARE NOT ENCOMPASSED IN THE TIME THAT
WORK MUST BE PERFORMED DOES NOT CHANGE THE BASIC STRUCTURE OF
ORGANIZATION, WHICH WOULD CONSIST OF THE NUMBER AND TYPE OF EMPLOYEES
REFERRED TO A PARTICULAR UNIT OR ITS SUPERVISION, ETC. THE ORGANIZATION
COULD REMAIN BASICALLY THE SAME, IRRESPECTIVE OF THE PRECISE TIME SET
FOR TIME SCHEDULES. THE HEARING EXAMINER IS FURTHER OF THE OPINION THAT
IT IS NOT COVERED BY THE PHRASEOLOGY "THE TECHNOLOGY OF PERFORMING ITS
WORK". THE COMMONLY ACCEPTED UNDERSTANDING OF THE WORD "TECHNOLOGY" IS
THAT IT WOULD RELATE TO THE METHOD OF WORK, RATHER THAN THE TIME
REQUIRED TO PERFORM THE WORK. THEREFORE, THE HEARING EXAMINER IS OF THE
OPINION THAT THERE IS NOTHING IN THE EXCLUSIONS OF SECTION 11(B) OF THE
EXECUTIVE ORDER WHICH WOULD EXCUSE THE BOARD FROM AN OBLIGATION TO
BARGAIN WITH THE ASSOCIATION WITH REFERENCE TO CHANGES IN TIME
SCHEDULES.
THE HEARING EXAMINER IS ALSO OF THE OPINION THAT THE BROAD LANGUAGE
OF SECTION 12 OF THE EXECUTIVE ORDER, WHEN CONSTRUED IN THE LIGHT OF THE
PURPOSE OF THE EXECUTIVE ORDER AND THE LANGUAGE OF THE ENTIRE ORDER DOES
NOT ENTITLE THE BOARD TO TREAT THE CHANGE IN TIME SCHEDULES AS A MATTER
OF MANAGEMENT'S PREROGATIVE. IT DOES NOT RESTRICT THEIR RIGHT TO DIRECT
EMPLOYEES OF THE AGENCY. THEY RETAIN THIS RIGHT. IT DOES NOT RELATE TO
HIRING, PROMOTION, TRANSFER, ASSIGNMENT, OR RELIEVING FROM DUTIES
BECAUSE OF LACK OF WORK, ETC. THERE IS NO INDICATION THAT IT WAS AN
EMERGENCY OF SUCH GREAT NATURE AS TO FALL UNDER THE DEFINITION OF
SECTION 12(6) OF THE EXECUTIVE ORDER, AND THE HEARING EXAMINER IS OF THE
OPINION THAT SECTIONS 4 AND 5 OF THE EXECUTIVE ORDER, WHEN CONSTRUED IN
THE LIGHT OF THE ENTIRE ORDER, DO NOT AUTHORIZE THE ACTION TAKEN BY THE
BOARD IN THIS REGARD WITHOUT PRIOR CONSULTATION WITH THE BARGAINING
REPRESENTATIVE. THE HEARING EXAMINER CANNOT BELIEVE, FOR EXAMPLE, THAT
HE IS CALLED UPON AS HEARING EXAMINER TO DETERMINE WHETHER OR NOT THE
ACTION OF THE BOARD IS EFFICIENT WITHIN THE PROVISIONS OF SECTION
12(B)(4). TO DO SO WOULD BE FOR THE HEARING EXAMINER TO SUBSTITUTE HIS
JUDGMENT FOR THAT OF THE BOARD AND TO MAKE POLICY DETERMINATIONS AS TO
WISDOM OR LACK OF WISDOM OF ACTIONS OF MANAGEMENT. AS HEREINABOVE
STATED THE HEARING EXAMINER IS OF THE OPINION THAT HE HAS NO SUCH
AUTHORITY. AS TO 12(B)(5) THERE WAS NO CHANGE IN PERSONNEL TO PERFORM
THE WORK. THERE WAS NO CHANGE IN BASIC METHODS BY WHICH THE WORK WAS
PERFORMED, AND THE HEARING EXAMINER IS OF THE OPINION THAT, WHILE THE
MATTER IS NOT ENTIRELY FREE FROM DOUBT, THE WORK "MEANS" IS RATHER
CLOSELY ANALOGOUS TO THE WORD "METHODS". OF COURSE, HOWEVER, TO SAY
THAT A SUBJECT IS A PROPER SUBJECT FOR BARGAINING IS NOT TO SAY THAT
MANAGEMENT MAY NOT, AFTER GOOD FAITH BARGAINING AND AN IMPASSE HAS BEEN
REACHED, PROCEED TO ENUNCIATE ITS MANAGEMENT POLICIES.
THE POSITION IS TAKEN, HOWEVER, BY THE BOARD THAT, ASIDE FROM OTHER
CONSIDERATIONS, THE WORST FEARS OF THE ASSOCIATION AS TO PROBLEMS WHICH
WOULD BE CREATED FOR ITS MEMBERS BY THE NEW CASE HANDLING PROCEDURE WERE
NOT REALIZED, AND THAT EXPERIENCE HAS ESTABLISHED THAT THE EMPLOYEES
HAVE BEEN ABLE WITHOUT ANY SUBSTANTIAL DIFFICULTY TO MEET THE REVISED
TIME SCHEDULES. THERE IS SUBSTANTIAL EVIDENCE IN THE RECORD FROM
MEMBERS OF THE BARGAINING UNIT TO THE EFFECT THAT THEIR WORST FEARS WERE
NOT REALIZED, THAT THE TIME DEADLINES WERE NOT OPPRESSIVE; AND THAT
THEY HAVE BEEN ABLE IN THE MAIN TO MEET SAID DEADLINES. THE HEARING
EXAMINER IS OF THE OPINION, HOWEVER, THAT IT CANNOT BE SAID THAT THERE
HAS BEEN NO IMPACT UPON THE EMPLOYEES AS A RESULT OF THE CHANGE IN
OPERATIONAL METHODS; AND EVEN IF THE IMPACT HAS NOT BEEN GREAT, THE
PURPOSE OF THE EXECUTIVE ORDER ARE, NOTWITHSTANDING, DEFEATED BY A
REFUSAL TO BARGAIN. WHEN MANAGEMENT UNILATERALLY BARGAINS AND IGNORES
THE BARGAINING REPRESENTATIVE OF ITS EMPLOYEES, THE EFFECT OF SUCH
ACTION IS TO UNDERCUT THE ASSOCIATION AND TO DESTROY ITS EFFECTIVENESS
IN THE EYES OF THOSE WHOM IT REPRESENTS.
THE FACT THAT UNILATERAL CHANGE IN WORKING CONDITIONS IS A REFUSAL TO
BARGAIN WAS DECIDED IN THE CASE OF DISTRICT 50, UNITED MINE WORKERS AND
THE CASE OF VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH
CAROLINA, AND SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL AFL-CIO, GERR
21:4071, IN WHICH CASE THE HEARING EXAMINER SAID:
"IN GENERAL WHERE A UNIT OF EMPLOYEES IS REPRESENTED BY AN EXCLUSIVE
REPRESENTATIVE AND AN AGENCY UNILATERALLY CHANGES WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT WITHOUT PROPER CONSULTATION AND NEGOTIATION WITH
THE EXCLUSIVE REPRESENTATIVE, THE AGENCY WOULD BE IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER, WHICH PROVIDES THAT AGENCY MANAGEMENT
SHALL NOT REFUSE TO CONSULT OR NEGOTIATE WITH THE LABOR ORGANIZATION AS
REQUIRED BY THE ORDER."
REFERRING AGAIN TO THE PRIVATE SECTOR IN THE CASE OF RUSSELL NEWTON
MANUFACTURING COMPANY, INC., 167 NLRB 1112, THE NATIONAL LABOR RELATIONS
BOARD HELD THAT WHEN THE RESPONDENT INSTITUTED A CHANGE IN THE WORK
POINT SYSTEM, WITH 275 POINTS AS THE MINIMUM DESIRABLE POINT AVERAGE OF
PRODUCTION TO BE MAINTAINED BY EMPLOYEES AND PROVIDED FOR DISCIPLINARY
ACTION TO BE TAKEN AGAINST THOSE NOT ATTAINING THAT MINIMUM AND DID NOT
BARGAIN WITH THE BARGAINING REPRESENTATIVE WITH REFERENCE TO SAID
ACTION, THE REFUSAL TO BARGAIN PROVISIONS OF THE NATIONAL LABOR
RELATIONS ACT HAD BEEN VIOLATED. IN THE ABSENCE, AS HEREINABOVE SET
FORTH, OF A SPECIFIC PROVISION OF THE EXECUTIVE ORDER MAKING THE SPEED
OF PRODUCTION A MATTER OF MANAGEMENT'S PREROGATIVE, THE HEARING EXAMINER
IS OF THE OPINION THAT SAID DECISION IN THE PRIVATE SECTOR, WHILE NOT
BINDING UPON THE HEARING EXAMINER, IS PERSUASIVE. THERE IS AN ANALOGY
IN THE REQUIREMENT TO BARGAIN, AND THE HEARING EXAMINER IS OF THE
OPINION THAT THE LABOR BOARD IN THE CASE HERE AT ISSUE WAS IN ERROR IN
TAKING THE POSITION THAT A CHANGE IN TIME SCHEDULE FOR PRODUCTIVITY WAS
A MATTER EXCLUSIVELY OF MANAGEMENT'S PREROGATIVE.
THE BOARD IN ITS BRIEF, HOWEVER, TAKES THE POSITION THAT A COLLECTIVE
BARGAINING CONTRACT HAVING BEEN NEGOTIATED, THE GRIEVANCE PROCEDURE SET
FORTH IN THE CONTRACT SHOULD HAVE BEEN RESORTED TO AND THAT, INASMUCH AS
THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES DID NOT SEEK TO PROCESS A
GRIEVANCE, THE BOARD CANNOT BE HELD TO HAVE VIOLATED THE EXECUTIVE
ORDER. ARTICLE 5 OF THE COLLECTIVE BARGAINING CONTRACT, WHICH WAS
INTRODUCED IN EVIDENCE AS ASSOCIATION'S EXHIBIT 3, CONTAINS THE
FOLLOWING PROVISION IN SECTION 1:
A GRIEVANCE IS A MATTER OF PERSONAL CONCERN OR DISSATISFACTION TO AN
EMPLOYEE, THE CONSIDERATION OF WHICH IS NOT COVERED BY THE OTHER SYSTEMS
FOR AGENCY REVIEW. EMPLOYEE GRIEVANCES DO NOT INCLUDE QUESTIONS OF
POLICY BUT MAY INCLUDE QUESTIONS OF THE APPLICATION OF POLICY TO AN
INDIVIDUAL EMPLOYEE OR TO A GROUP OF EMPLOYEES.
THE HEARING EXAMINER IS OF THE OPINION THAT SAID ARTICLE OF THE
CONTRACT DOES NOT PROVIDE THAT GRIEVANCES SHALL BE A SUBSTITUTE FOR AN
OBLIGATION TO BARGAIN AS SET FORTH IN SECTION 19 OF THE EXECUTIVE ORDER.
IT IS STATED THAT EMPLOYEE GRIEVANCES MAY INCLUDE QUESTIONS OF
APPLICATION OF POLICY TO AN INDIVIDUAL EMPLOYEE OR TO A GROUP OF
EMPLOYEES RELATING TO A MATTER OF PERSONAL CONCERN AND DISSATISFACTION,
THE HEARING EXAMINER IS OF THE OPINION THAT IT WAS NOT CONTEMPLATED BY
THE PARTIES THAT A GRIEVANCE WOULD BE A SUBSTITUTE FOR AN OBLIGATION TO
BARGAIN BUT RATHER THAT QUESTIONS ARISING UNDER THE CONTRACT WOULD BE
DETERMINED, WHERE NOT PROVIDED FOR BY OTHER SYSTEMS FOR AGENCY REVIEW,
BY MEANS OF AGREEMENTS AND ARBITRATION PROCEDURES. IN THE CASE OF
VETERANS ADMINISTRATION HOSPITAL, CHARLESTON SOUTH CAROLINA, AND SERVICE
EMPLOYEES INTERNATIONAL UNION, SUPRA, THE HEARING EXAMINER POINTED OUT
THAT THERE IS A DISTINCTION BETWEEN THE EXECUTIVE ORDER AND THE NATIONAL
LABOR RELATIONS ACT IN THAT THE NATIONAL LABOR RELATIONS ACT PROVIDES
FOR AN APPEAL TO THE COURTS TO ENFORCE COLLECTIVE BARGAINING AGREEMENTS,
WHEREAS THE EXECUTIVE ORDER DOES NOT PROVIDE FOR COURT ACTION. HE
CONCLUDED THAT NOTWITHSTANDING THAT CONDUCT MIGHT CONSTITUTE A BREACH OF
THE NEGOTIATED AGREEMENT THE MATTER MAY STILL PROPERLY BE BROUGHT BEFORE
THE SECRETARY. THIS HEARING EXAMINER IS OF THE OPINION THAT, EVEN IF
THE MATTER CONSTITUTED A BREACH OF THE COLLECTIVE BARGAINING CONTRACT,
IT WOULD STILL BE A MATTER FOR ADJUDICATION BY THE ASSISTANT SECRETARY.
THE HEARING EXAMINER IS FURTHER OF THE OPINION THAT THE OBLIGATION TO
BARGAIN IN THIS INSTANCE IS NOT THE SAME THING AS A GRIEVANCE. IN THE
CASE OF WEST TEXAS UTILITIES COMPANY V. NATIONAL LABOR RELATIONS BOARD,
206 FED2D 442, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HELD:
ALTHOUGH ANY GRIEVANCE MAY BE A SUBJECT OF COLLECTIVE BARGAINING, NOT
ALL SUBJECTS OF COLLECTIVE BARGAINING ARE GRIEVANCES. AS WE VIEW THE
WORD "GRIEVANCES", IT DOES NOT ENCOMPASS, FOR EXAMPLE, THE SETTING OF
WAGE RATES FOR A LARGE PERCENTAGE OF THE EMPLOYEES IN A CERTIFIED
BARGAINING UNIT. THE WORD "GRIEVANCES" IN THE FIELD OF INDUSTRIAL
RELATIONS, PARTICULARLY IN UNIONIZED COMPANIES, USUALLY REFERS TO
SECONDARY DISPUTES IN CONTRAST TO DISAGREEMENTS CONCERNING BROAD ISSUES,
SUCH AS, WAGE RATES, HOURS, AND WORKING CONDITIONS. THE SUPREME COURT,
IN CONSTRUING THE RAILWAY LABOR ACT OF 1934, NOTED THAT GRIEVANCES ARE
OF A COMPARATIVELY MINOR CHARACTER AND TRADITIONALLY AFFECT THE SMALLER
DIFFERENCE WHICH INEVITABLY APPEAR IN THE CARRYING OUT OF MAJOR
AGREEMENTS AND POLICIES OR ARRIVED INCIDENTALLY IN THE COURSE OF AN
EMPLOYMENT. THE FIFTH CIRCUIT TOOK A SIMILAR VIEW IN CONSTRUING SECTION
9(A) OF THE NATIONAL LABOR RELATIONS ACT.
THE HEARING EXAMINER IS OF THE OPINION THAT IF, AS THIS HEARING
EXAMINER FINDS, THE NATIONAL LABOR RELATIONS BOARD WAS GUILTY OF REFUSAL
TO BARGAIN, THE BOARD CANNOT BE HEARD TO SAY THAT ITS ACTION IS EXCUSED
DUE TO THE FACT THAT THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES HAS
REFUSED TO RESORT TO THE GRIEVANCE REMEDY.
THE ASSOCIATION IN ITS BRIEF TAKES THE POSITION THAT THE ONLY
APPROPRIATE REMEDY WOULD BE TO REQUIRE THE BOARD TO, PENDING ENGAGING IN
COLLECTIVE BARGAINING WITH THE ASSOCIATION, RETURN TO ITS FORMER
PROCEDURE AND ABANDON THE NEW CASE HANDLING PROCEDURE. THE HEARING
EXAMINER IS OF THE OPINION THAT SUCH A REMEDY IS NOT REQUIRED UNDER THE
FINDINGS OF THE HEARING EXAMINER IN THIS CASE. THE HEARING EXAMINER
FINDS THAT THE BOARD DID NOT VIOLATE THE EXECUTIVE ORDER BY CHANGING ITS
LINE OF SUPERVISION AND METHOD OF ASSIGNMENT OF CASES; NOR DID IT
VIOLATE THE EXECUTIVE ORDER BY ASSIGNING ITS CASES IN ROTATION. IT
WOULD NOT BE PROPER FOR THE HEARING EXAMINER TO REQUIRE THE BOARD TO
REFRAIN FROM ENGAGING IN LEGAL ACTS MERELY BECAUSE IN SOME RESPECTS THE
BOARD HAS ENGAGED IN OTHER ACTS IN VIOLATION OF THE EXECUTIVE ORDER.
THE HEARING EXAMINER IS FURTHER OF THE OPINION THAT THE PUBLIC
INTEREST WOULD NOT BE SERVED BY REQUIRING THE BOARD TO RETURN TO ITS
PRIOR METHOD OF OPERATION WITH REFERENCE TO TIME DEADLINES FOR THE
PROCESSING OF CASES. IT WOULD BE RATHER DIFFICULT TO DETERMINE WHAT THE
BOARD WOULD BE REQUIRED TO RETURN TO. THE HEARING EXAMINER IS OF THE
OPINION THAT IT WOULD NOT BE PROPER TO REQUIRE THE BOARD TO RETURN TO
THE WRITTEN TIME LIMITATIONS AS SET FORTH IN THE MEMORANDUM OF THE
EXECUTIVE SECRETARY OF OCTOBER 5, 1961, AND SUBSEQUENTLY INCORPORATED IN
THE BOARD'S WORK MANUAL. THE EVIDENCE, AS HEREIN-ABOVE SET FORTH,
CLEARLY ESTABLISHES THAT THESE TIME REQUIREMENTS HAVE NOT BEEN UNIFORMLY
FOLLOWED FOR A NUMBER OF YEARS. THE HEARING EXAMINER FEELS THAT IT
WOULD BE IMPROPER TO REQUIRE THE BOARD TO GO BACK TO THE OPERATION UNDER
TIME SCHEDULES WHICH HAD BEEN ABANDONED LONG BEFORE THE UNFAIR LABOR
PRACTICE WAS COMMITTED.
THE HEARING EXAMINER IS FURTHER OF THE OPINION THAT THERE IS NO
DEFINITE UNIFORM METHOD OF OPERATION TO WHICH THE BOARD COULD BE ORDERED
TO RETURN INSOFAR AS ITS ACTUAL PRACTICE IS CONCERNED. APPARENTLY IN
SOME UNITS THERE WERE DEADLINES, IN OTHER UNITS THERE WERE NO SPECIFIC
DEADLINES, AND IN SOME UNITS THERE WERE DEADLINES WHICH WERE FOLLOWED IN
PART AND NOT FOLLOWED IN PART. ASIDE, HOWEVER, FROM THE DIFFICULTY OF
ASCERTAINING A SPECIFIC PROCEDURE TO WHICH THE BOARD COULD BE ORDERED TO
RETURN, THE HEARING EXAMINER IS OF THE OPINION THAT, UNDER THE FACTS OF
THIS CASE, THE PUBLIC INTEREST WOULD NOT BE SERVED BY SUCH A REMEDY. IT
IS TRUE THAT IN THE PRIVATE SECTOR, AS WELL AS UNDER THE EXECUTIVE
ORDER, THE USUAL REMEDY DOES REQUIRE A RETURN TO THE STATUS QUO WHICH
EXISTED PRIOR TO THE COMMISSION OF THE UNFAIR LABOR PRACTICE. IT WILL
BE NOTED, HOWEVER, THAT THE NATIONAL LABOR RELATIONS BOARD HAS ON
VARIOUS OCCASIONS DUE TO THE CIRCUMSTANCES OF THE CASE NOT REQUIRED SUCH
A REMEDY. THE BOARD SO HELD IN GENERAL MOTORS CORPORATION, 171 NLRB NO.
97. OF COURSE, THE EXECUTIVE ORDER IS REMEDIAL AND NOT PUNITIVE. THE
HEARING EXAMINER IS OF THE OPINION THAT, ALTHOUGH THE BOARD HAD VIOLATED
THE EXECUTIVE ORDER BY ENGAGING IN UNILATERAL ACTIONS, AS HEREINABOVE
SET FORTH, THE BOARD HAS NOT BEEN GUILTY OF A GENERAL FAILURE OF
SUBJECTIVE GOOD FAITH. THIS FACT DOES NOT, HOWEVER, EXCUSE THE REFUSAL
TO BARGAIN. NATIONAL LABOR RELATIONS BOARD V. KATZ, 369 U.S 736. THE
HEARING PROCESS UNDER THE EXECUTIVE ORDER IS OF EXTREMELY RECENT ORIGIN.
NO LARGE BODY OF PRECEDENT HAS AS YET EVOLVED TO GIVE ADEQUATE GUIDE
AND SIGN POSTS AS TO DOUBTFUL ISSUES. THE ISSUE CONCERNING WHICH THE
HEARING EXAMINER IN THIS DECISION FINDS THAT THE BOARD HAS VIOLATED THE
EXECUTIVE ORDER IS ONE UPON WHICH REASONABLE LEGAL MINDS MAY HONESTLY
DIFFER. WHILE THE HEARING EXAMINER IS OF THE OPINION THAT THE BOARD
ERRONEOUSLY CONSTRUED THE MANAGEMENT'S PREROGATIVE SECTIONS IN THE
EXECUTIVE ORDER, THE HEARING EXAMINER IS NOT OF THE OPINION THAT THE
BOARD HAS IN ANY WAY ATTEMPTED TO FLAUNT THE LAW. THE HEARING EXAMINER
IS OF THE OPINION THAT THE RECORD DOES NOT INDICATE THAT RESTITUTION OF
THE FORMER METHOD OF OPERATION PENDING COMPLETION OF BARGAINING IS
NECESSARY IN ORDER TO PREVENT FUTURE VIOLATIONS BY THE BOARD. UNDER
THESE CIRCUMSTANCES, THE HEARING EXAMINER IS OF THE OPINION THAT IT IS
NOT IN THE PUBLIC INTEREST TO APPLY THE REMEDY SUGGESTED BY THE
ASSOCIATION. THE BOARD HAS ALREADY GONE FROM ONE PROCEDURE TO A SECOND
PROCEDURE. BARGAINING NEGOTIATIONS BETWEEN THE ASSOCIATION AND THE
BOARD MAY QUITE POSSIBLY RESULT IN MODIFICATIONS IN THE PRESENT
PROCEDURE OR EVEN THE ADOPTION OF SOME THIRD PROCEDURE. TO REQUIRE THE
BOARD TO RETURN TO THE FIRST PROCEDURE PENDING BARGAINING WOULD BE
MERELY TO REQUIRE STILL ANOTHER CHANGE IN METHOD OF OPERATION. THE
HEARING EXAMINER IS OF THE OPINION THAT NO PUBLIC AGENCY CAN OPERATE AT
TOP EFFICIENCY WITH A CONSTANT CHANGE IN PROCEDURE AND METHOD OF
OPERATION. TO INJECT STILL ANOTHER CHANGE IN TIME DEADLINES WOULD BE TO
UNNECESSARILY FURTHER CONFUSE BOARD PROCESSING OF ITS WORK LOAD AND
WOULD, THEREFORE, ADVERSELY AFFECT THE BOARD'S ABILITY TO MOST
EFFICIENTLY SERVE THE PUBLIC. THE HEARING EXAMINER DOES NOT BY THESE
COMMENTS IN ANY WAY EXPRESS AN OPINION AS TO WHETHER THE PRIOR METHOD OF
OPERATION IS PREFERABLE FROM THE STANDPOINT OF SERVICE TO THE PUBLIC.
THE HEARING EXAMINER IS MERELY STATING THAT THE PUBLIC WOULD BE BETTER
SERVED TO PERMIT THE PRESENT SYSTEM TO CONTINUE UNTIL BARGAINING IN GOOD
FAITH HAS BEEN ENGAGED IN WITH WHATEVER RESULT, INSOFAR AS ANY FURTHER
CHANGED BEING MADE, MAY OCCUR FROM SUCH BARGAINING. THE HEARING
EXAMINER IS, THEREFORE, OF THE OPINION THAT THE APPROPRIATE REMEDY IS
FOR AN ORDER TO BE ENTERED BY THE ASSISTANT SECRETARY REQUIRING THE
BOARD TO POST A NOTICE THAT IT WILL BARGAIN IN GOOD FAITH WITH REFERENCE
TO THE ISSUE OF TIME SCHEDULING AND REQUIRING THE BOARD TO BARGAIN IN
GOOD FAITH WITH REFERENCE TO THE TIME SCHEDULES.
IN VIEW OF MY FINDINGS AND CONCLUSIONS ABOVE, I RECOMMEND THAT THE
ASSISTANT SECRETARY FIND:
(1) RESPONDENT'S, THE NATIONAL LABOR RELATIONS BOARD'S ACTION IN
INSTITUTING A NEW METHOD OF ASSIGNMENT OF CASES WITHOUT ENGAGING IN
COLLECTIVE BARGAINING WITH THE ASSOCIATION WAS AN EXERCISE OF
MANAGEMENT'S PREROGATIVE AND WAS NOT A VIOLATION OF SECTION 19(A)(1) OF
THE EXECUTIVE ORDER.
(2) THAT RESPONDENT BY UNILATERALLY CHANGING THE TIME SCHEDULES FOR
THE PROCESSING OF CASES BY ITS LEGAL ASSISTANTS AND BY FAILING TO
BARGAIN WITH RESPECT TO SAID CHANGES WITH THE ASSOCIATION, THE
REPRESENTATIVE OF ITS LEGAL ASSISTANTS, HAS VIOLATED SECTION 19(A)(1)
AND 19(A)(6) OF EXECUTIVE ORDER 11491.
IT IS MY CONSIDERED JUDGMENT THAT IT WOULD BE APPROPRIATE FOR THE
ASSISTANT SECRETARY TO ADOPT THE FOLLOWING ORDER WHICH IS DESIGNED TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203(25)(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL LABOR
RELATIONS BOARD SHALL:
(1) CEASE AND DESIST FROM-
(A) REFUSING TO CONSULT, CONFER, OR NEGOTIATE WITH THE NATIONAL LABOR
RELATIONS BOARD PROFESSIONAL ASSOCIATION AS THE EXCLUSIVE REPRESENTATIVE
OF ITS EMPLOYEES IN THE FOLLOWING UNIT:
"ALL ATTORNEYS AND OTHER PROFESSIONAL EMPLOYEES PERFORMING COMPARABLE
LEGAL WORK IN THE WASHINGTON OFFICE OF THE BOARD, EXCLUDING (1) ANY
MANAGERIAL EXECUTIVE, (2) ANY EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN PURELY CLERICAL CAPACITY, AND (3) SUPERVISORS WHO
OFFICIALLY EVALUATE THE PERFORMANCE OF EMPLOYEES AS STATED IN SECTION
6(A) OF EXECUTIVE ORDER 10988."
BY AT ANY FUTURE TIME UNILATERALLY CHANGING THE TIME SCHEDULES FOR
PERFORMANCE OF WORK BY THE EMPLOYEES IN SAID UNIT.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES OF PROVISIONS OF THE ORDER:
(A) UPON REQUEST, CONSULT, CONFER, AND NEGOTIATE WITH THE NATIONAL
LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION WITH REFERENCE TO TIME
SCHEDULES FOR PERFORMANCE OF WORK BY ITS EMPLOYEES IN SAID UNIT.
(B) POST AT ITS WASHINGTON, D.C., OFFICE COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX". COPIES OF SAID NOTICE SHALL BE SIGNED BY THE
CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD AND SHALL BE POSTED AND
MAINTAINED BY THE NATIONAL LABOR RELATIONS BOARD FOR 60 DAYS THEREAFTER
IN CONSPICUOUS PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE NATIONAL LABOR RELATIONS BOARD SHALL TAKE REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED OR DEFACED OR COVERED BY ANY
OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 10 DAYS FROM DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
DATE: OCT. 19 1971
(NOTICE APPENDED FOR ADOPTION BY THE EXECUTIVE SECRETARY)
WE WILL NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH NATIONAL
LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION AS EXCLUSIVE
REPRESENTATIVE OF OUR EMPLOYEES IN THE FOLLOWING UNIT,
"ALL ATTORNEYS AND OTHER PROFESSIONAL EMPLOYEES PERFORMING COMPARABLE
LEGAL WORK IN THE WASHINGTON OFFICE OF THE BOARD, EXCLUDING: (1) ANY
MANAGERIAL EXECUTIVE, (2) ANY EMPLOYEE ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN PURELY CLERICAL CAPACITY, AND (3) SUPERVISORS WHO
OFFICIALLY EVALUATE THE PERFORMANCE OF EMPLOYEES AS STATED IN SECTION
6(A) OF THE EXECUTIVE ORDER 10988, BY AT ANY FUTURE TIME UNILATERALLY
CHANGING THE TIME SCHEDULES FOR PERFORMANCE OF WORK BY OUR EMPLOYEES IN
THE ABOVE UNIT.
WE WILL UPON REQUEST CONSULT, CONFER, AND NEGOTIATE WITH NATIONAL
LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION WITH REFERENCE TO TIME
SCHEDULES FOR PERFORMANCE OF WORK BY THE EMPLOYEES IN THE ABOVE UNIT.
/1/ DEADLINES BEYOND 3 WEEKS OR 4 WEEKS FOR ABNORMALLY LONG OR
COMPLICATED CASES WILL BE SET BY EXECUTIVE SECRETARY UPON NEGOTIATION.
/2/ UNUSUAL CASES ARE SUBJECT TO AN ADDITIONAL WEEK BY AUTHORIZATION
OF THE SUB-PANEL OR PANEL.
/3/ UNUSUAL CASES ARE SUBJECT TO AN ADDITIONAL WEEK BY AUTHORIZATION
OF BOARD.
/4/ WHERE DRAFT-IN-LIEU IS SUBSTANTIALLY MODIFIED AT BOARD AGENDA, AN
ADDITIONAL WEEK MAY BE AUTHORIZED BY BOARD.
/5/ SECTION 8(A)(5) OF THE NATIONAL LABOR RELATIONS ACT IS THE
PROVISION REQUIRING AN EMPLOYER TO BARGAIN IN GOOD FAITH WITH HIS
EMPLOYEES' REPRESENTATIVE.
3 A/SLMR 245; P. 85; CASE NO. 22-3048(RO); JANUARY 22, 1973.
DEPARTMENT OF THE NAVY,
MILITARY SEALIFT COMMAND
A/SLMR NO. 245
THE SUBJECT CASE INVOLVES A REPRESENTATION PETITION FILED BY THE
MARINE ENGINEERS' BENEFICIAL ASSOCIATION, DISTRICT NO. 1, PACIFIC COAST
DISTRICT, AFL-CIO (MEBA). THE MEBA SOUGHT A UNIT WHICH ENCOMPASSES ALL
OF THE ACTIVITY'S LICENSED MARINE ENGINEERS EMPLOYED IN ITS ATLANTIC,
PACIFIC, AND FAR EAST AREA COMMANDS.
THE ACTIVITY CONTENDED THE ALREADY EXISTING AREA-WIDE UNITS OF
LICENSED MARINE ENGINEERS WHICH ARE BASED ON ITS COMMAND STRUCTURE
SHOULD REMAIN INTACT AND ARGUED THAT AN ACTIVITY-WIDE UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OR AGENCY OPERATIONS. THE
PARTIES STIPULATED AND THE RECORD SUPPORTED THAT THE LICENSED MARINE
ENGINEERS WERE SUPERVISORS WITHIN THE MEANING OF THE ORDER. NOTING THAT
THE MEBA HAD TRADITIONALLY REPRESENTED EXCLUSIVELY UNITS OF LICENSED
MARINE ENGINEERS OF THE ACTIVITY UNDER EXECUTIVE ORDER 10988 AND IN THE
PRIVATE SECTOR, THE ASSISTANT SECRETARY FOUND THAT A UNIT CONSISTING OF
SUPERVISORY LICENSED MARINE ENGINEERS WAS PERMISSIBLE AND APPROPRIATE
UNDER SECTION 24(2) OF THE ORDER.
THE ASSISTANT SECRETARY FURTHER FOUND THAT THE CLAIMED ACTIVITY-WIDE
UNIT OF SUCH LICENSED MARINE ENGINEERS WAS APPROPRIATE. IN THIS REGARD,
HE NOTED THAT ALL THE LICENSED MARINE ENGINEERS SHARED THE SAME BASIC
SKILLS, TRAINING, FUNCTIONS AND RESPONSIBILITIES; AND PERSONNEL AND
LABOR RELATIONS POLICIES AFFECTING THE LICENSED MARINE ENGINEERS WERE
PROMULGATED AT THE NATIONAL LEVEL. UNDER THESE CIRCUMSTANCES, THE
ASSISTANT SECRETARY CONCLUDED THAT THE CLAIMED UNIT WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE
DIRECTED AN ELECTION IN AN ACTIVITY-WIDE UNIT OF LICENSED MARINE
ENGINEERS.
DEPARTMENT OF THE NAVY,
MILITARY SEALIFT COMMAND
AND
MARINE ENGINEERS' BENEFICIAL
ASSOCIATION, DISTRICT NO. 1,
PACIFIC COAST DISTRICT, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HOWARD S. NAIMAN.
THE HEARING OFFICER'S RULINGS MADE RULINGS AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' BRIEFS,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, MARINE ENGINEERS' BENEFICIAL ASSOCIATION,
DISTRICT NO.1, PACIFIC COAST DISTRICT, AFL-CIO, HEREIN CALLED MEBA,
SEEKS A UNIT OF ALL LICENSED MARINE ENGINEERS IN ALL AREAS OF THE
MILITARY SEALIFT COMMAND, EXCLUDING ALL MANAGEMENT OFFICIALS, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, ENGINEERS ON VESSELS OPERATED BY FOREIGN NATIONALS, GUARDS AND
OTHER SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491. /1/
THE ACTIVITY AGREES THAT LICENSED MARINE ENGINEERS SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST APART FROM OTHER EMPLOYEES, BUT
CONTENDS THAT THE UNIT SOUGHT IS INAPPROPRIATE IN THAT IT CONCLUDES
EXISTING UNITS OF LICENSED MARINE ENGINEERS IN ITS ATLANTIC, PACIFIC AND
FAR EAST COMMANDS WHICH IT ASSERTS SHOULD BE ALLOWED TO REMAIN INTACT.
/2/
BARGAINING HISTORY
THE HISTORY OF COLLECTIVE BARGAINING ON AN EXCLUSIVE BASIS INVOLVING
THE ACTIVITY'S LICENSED MARINE ENGINEERS HAS BEEN LIMITED TO THREE
AREA-WIDE COMMAND UNITS LOCATED IN THE ATLANTIC, PACIFIC AND FAR EAST.
IN ALL, THE MEBA CURRENTLY HOLDS EXCLUSIVE RECOGNITION, GRANTED UNDER
EXECUTIVE ORDER 10988, FOR APPROXIMATELY 519 LICENSED MARINE ENGINEERS
ON 68 VESSELS IN THE ACTIVITY'S ATLANTIC, PACIFIC AND FAR EAST AREA
COMMANDS. THE RECORD REVEALS THAT THE NEGOTIATED AGREEMENTS BETWEEN THE
MEBA AND THE ACTIVITY COVERING THE ABOVE THREE AREA COMMANDS HAVE
EXPIRED AND WOULD NOT CONSTITUTE BARS TO THE INSTANT PETITIONS.
FURTHER, THE EVIDENCE ESTABLISHES THAT HISTORICALLY CERTAIN BARGAINING
FUNCTIONS WITH RESPECT TO THE AREA-WIDE COMMAND UNITS HAVE BEEN ASSUMED
AT THE ACTIVITY'S NATIONAL HEADQUARTERS LEVEL. THUS, IN THE PAST,
HEADQUARTERS PERSONNEL HAVE MET AND DEALT WITH MEBA REPRESENTATIVES
REGARDING AREA PROBLEMS CONCERNING PERSONNEL AND MANNING REQUIREMENTS
ABOARD VESSELS.
APPROPRIATE UNIT
THE ACTIVITY CONTENDS THAT LICENSED MARINE ENGINEERS IN AN AREA-WIDE
COMMAND UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND
THAT THEIR INCLUSION IN AN OVERALL, SINGLE ACTIVITY-WIDE UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS
REGARD, THE ACTIVITY STRESSES ITS EXISTING LABOR-MANAGEMENT RELATIONS
STRUCTURE AND THE DIFFICULTIES THAT AN ACTIVITY-WIDE UNIT WOULD CAUSE
WITH RESPECT TO SUCH STRUCTURE. IN SUPPORT OF ITS PETITION FOR AN
ACTIVITY-WIDE UNIT, THE MEBA ARGUES THAT THE AUTHORITY ALLEGEDLY
DELEGATED TO AREA COMMANDS TO NEGOTIATE AGREEMENTS COULD EASILY BE
RETAINED BY THE HEADQUARTERS COMMAND, THAT THE PRESENT WAGES AND WORKING
CONDITIONS OF UNIT EMPLOYEES ARE ESSENTIALLY THE SAME IN ALL AREAS, AND
THAT EFFICIENCY, EFFECTIVENESS, AND COMMUNITY OF INTEREST WOULD BE
BETTER SERVED BY THE BROADER UNIT.
THE ACTIVITY IS A COMPONENT OF THE OPERATING FORCES OF THE UNITED
STATES NAVY. ITS COMMANDERS HOLD CO-EQUAL STATUS ORGANIZATIONALLY WITH
THE COMMANDERS-IN-CHIEF, U.S. ATLANTIC FLEET, U.S. NAVAL FORCES EUROPE,
AND U.S. PACIFIC FLEET. THE ACTIVITY PROVIDES LOGISTIC SUPPORT TO
BATTLE FLEET ELEMENTS AND A SYSTEM OF OCEAN TRANSPORTATION FOR PERSONNEL
AND CARGO OF ALL ELEMENTS OF THE DEPARTMENT OF DEFENSE. IT ALSO
OPERATES SHIPS IN SUPPORT OF SCIENTIFIC PROJECTS AND OTHER PROGRAMS FOR
GOVERNMENT AGENCIES OR DEPARTMENTS. THE PRIMARY MISSION OF THE ACTIVITY
IS TO PROVIDE IMMEDIATE SEALIFT CAPABILITY IN CASE OF AN EMERGENCY. IN
ORDER TO PERFORM ITS MISSION, THE ACTIVITY OPERATES APPROXIMATELY 113
GOVERNMENT OWNED SHIPS AND CONTROLS UNDER CHARTER AS AN ADDITIONAL 135
PRIVATELY OWNED COMMERCIAL VESSELS. APPROXIMATELY 100 OF THE SHIPS OF
THE FORMER CATEGORY ARE MANNED BY DIRECT HIRE, CIVIL SERVICE SEAMEN, WHO
INCLUDE, AMONG OTHERS, LICENSED MARINE ENGINEERS.
THE ACTIVITY HAS A HEADQUARTERS FACILITY IN WASHINGTON, D.C., A
EUROPEAN AREA COMMAND, AN ATLANTIC AREA COMMAND, A PACIFIC AREA COMMAND,
AND A FAR EAST AREA COMMAND. IT EMPLOYS OVER 8,000 EMPLOYEES AT THESE
VARIOUS LOCATIONS INCLUDING APPROXIMATELY 519 LICENSED MARINE ENGINEERS
LOCATED IN THE ATLANTIC, PACIFIC AND FAR EAST AREA COMMANDS. /3/ AS IN
THE CASE OF OTHER SEAGOING PERSONNEL EMPLOYED BY THE ACTIVITY, LICENSED
MARINE ENGINEERS SERVING ON ACTIVITY VESSELS ARE MEMBERS OF THE SEAGOING
MERCHANT MARINE AND ARE REQUIRED TO MEET ALL UNITED STATES COAST GUARD
QUALIFICATION REQUIREMENTS IN THEIR PARTICULAR CLASSIFICATION. ALL OF
THE SEAGOING PERSONNEL EMPLOYED BY THE ACTIVITY, INCLUDING LICENSED
MARINE ENGINEERS, ARE COMPENSATED IN ACCORDANCE WITH A SECTION OF THE
U.S. CODE WHICH PROVIDES THAT WAGES ARE TO BE "FIXED AND ADJUSTED FROM
TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN
ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME
INDUSTRY."
THE PARTIES STIPULATED AND THE RECORD SUPPORTS THE FACT THAT THE
LICENSED MARINE ENGINEERS INVOLVED HEREIN ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER IN THAT THEY HAVE AUTHORITY, IN THE
INTEREST OF THE AGENCY, TO ASSIGN, REWARD, OR DISCIPLINE OTHER
EMPLOYEES, OR RESPONSIBLY TO DIRECT THEM OR EFFECTIVELY RECOMMEND SUCH
ACTION, AND THAT IN THE EXERCISE OF SUCH AUTHORITY THEY ARE REQUIRED TO
USE INDEPENDENT JUDGMENT. THE RECORD ESTABLISHES ALSO THAT UNITS OF
LICENSED MARINE ENGINEERS ARE NOW AND HAVE BEEN HISTORICALLY OR
TRADITIONALLY REPRESENTED BY THE MEBA BOTH IN THE PRIVATE SECTOR AND IN
THE ACTIVITY. THUS, THE MEBA CURRENTLY HOLDS EXCLUSIVE RECOGNITION
GRANTED UNDER EXECUTIVE ORDER 10988 FOR UNITS OF CERTAIN OF THE
ACTIVITY'S LICENSED MARINE ENGINEERS LOCATED IN THE ATLANTIC, PACIFIC
AND FAR EAST AREA COMMANDS. UNDER THESE CIRCUMSTANCES, I FIND THAT
RECOGNITION OF A UNIT OF SUCH SUPERVISORS IS PERMISSIBLE AND APPROPRIATE
UNDER SECTION 24(2) OF THE ORDER.
THERE ARE 269 LICENSED MARINE ENGINEERS SERVING ON 31 SHIPS IN THE
ATLANTIC AREA COMMAND, 212 SERVING ON 30 SHIPS IN THE PACIFIC AREA
COMMAND, AND 38 SERVING ON 7 SHIPS IN THE FAR EAST AREA COMMAND. THE
PRIMARY MISSION OF THESE ENGINEERS IS TO PERFORM MAINTENANCE AND REPAIR
WORK ON ALL OF THE MACHINERY IN THE ENGINE ROOM AND ON DECK WHICH IS
RELATED TO THE OPERATION OF THE PARTICULAR VESSEL TO WHICH THEY ARE
ASSIGNED. THE RECORD REVEALS THAT ALL OF THE LICENSED MARINE ENGINEERS
INVOLVED HEREIN HAVE HAD SIMILAR TRAINING AND THAT ALTHOUGH OPERATING IN
DIFFERENT AREAS, THEIR JOB FUNCTIONS, WORKING CONDITIONS AND DUTIES ARE
THE SAME. FURTHER, THE BENEFITS, LEAVE, AND PAY SCALES, EXCEPT FOR
LOCAL VARIATIONS, ARE THE SAME FOR ALL LICENSED MARINE ENGINEERS.
THE EVIDENCE ESTABLISHES THAT THE ACTIVITY'S PERSONNEL, LABOR
RELATIONS AND OPERATING POLICIES ARE DETERMINED AT THE NATIONAL
HEADQUARTERS LEVEL. IN THIS REGARD, REGULATIONS ESTABLISHED WITH
RESPECT TO SUCH MATTERS AS LEAVE, MERIT PROMOTION, AND BENEFITS ARE
COMPILED, EDITED, AND PASSED ON TO THE VARIOUS SHIPS' COMMANDS IN THE
FORM OF CIVILIAN MARINE PERSONNEL INSTRUCTIONS, HEREIN CALLED CMPI'S ARE
IMPLEMENTED ON BOARD SHIP IN ALL AREA COMMANDS. WHILE PAY SCALES AND
OTHER WORKING CONDITIONS APPEAR TO BE FIXED BY PRIVATE SECTOR
GUIDELINES, THE RECORD INDICATES THAT THE NATIONAL HEADQUARTERS, THROUGH
ITS COMPILATION OF CMPI'S, HAS LATITUDE IN ESTABLISHING WHAT THE
ULTIMATE GUIDELINES WILL BE, AND, ON OCCASION, HEADQUARTERS PERSONNEL
HAVE MET AND DEALT WITH MEBA REPRESENTATIVES PRIOR TO ESTABLISHING THERE
GUIDELINES OR MAKING CHANGES IN THE CMPI'S. MOREOVER, ON OCCASION,
HEADQUARTERS PERSONNEL, AFTER DISCUSSION WITH THE MEBA REPRESENTATIVES,
HAVE SOUGHT EXCEPTIONS TO COAST GUARD, DEPARTMENT OF NAVY, CIVIL
SERVICES COMMISSION AND DEPARTMENT OF DEFENSE REGULATIONS.
,ALTHOUGH THE ACTIVITY CONTENDS THAT EACH AREA COMMAND HAS BEEN
DELEGATED, TO THE FULLEST EXTENT POSSIBLE, THE AUTHORITY TO ACT UPON
PERSONNEL PROBLEMS WITHIN ITS PARTICULAR AREA, THE EVIDENCE SHOWS THAT
THE NATIONAL HEADQUARTERS AIDS THE AREA COMMANDS IN RESOLVING DAY-TO-DAY
PROBLEMS REGARDING THE CMPI'S. IN THIS CONNECTION, THE RECORD INDICATES
THAT THERE IS FREQUENT CONTACT BETWEEN THE NATIONAL HEADQUARTERS AND THE
AREA COMMANDS WITH REGARD TO THE INTERPRETATION OF CMPI'S. FURTHER,
WHILE THE NATIONAL HEADQUARTERS DOES NOT PARTICIPATE DIRECTLY IN THE
NEGOTIATION OF AGREEMENTS AT THE AREA COMMAND LEVEL, THE EVIDENCE
ESTABLISHES THAT THE NATIONAL HEADQUARTERS REVIEWS NEGOTIATED AGREEMENTS
IN ORDER TO DETERMINE WHETHER THEY ARE IN CONFORMITY WITH ESTABLISHED
CMPI'S. ALSO, ALTHOUGH THERE IS NO DIRECT PARTICIPATION BY THE NATIONAL
HEADQUARTERS IN NEGOTIATIONS AT AN AREA COMMAND LEVEL, NEGOTIATED
AGREEMENTS ARE SUBJECT TO APPROVAL BY THE NATIONAL HEADQUARTERS.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT BY THE MEBA
CONSTITUTES AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. THUS, AS NOTED ABOVE, THE RECORD ESTABLISHES THAT ALL
OF THE CLAIMED LICENSED MARINE ENGINEERS HAVE SIMILAR SKILLS, TRAINING,
AND MISSION, AND PERFORM ESSENTIALLY THE SAME KIND OF WORK ON A
DAY-TO-DAY BASIS. IN ADDITION, THE LABOR RELATIONS AND PERSONNEL
POLICIES OF THE ACTIVITY ARE ESTABLISHED AT THE NATIONAL LEVEL THROUGH
THE COMPILATION OF CMPI'S. IN THIS REGARD, THE RECORD INDICATES THAT
HEADQUARTERS PERSONNEL HAVE MET AND DEALT WITH THE MEBA REPRESENTATIVES
REGARDING PROBLEMS CONCERNING MANNING AND PERSONNEL REQUIREMENTS ABOARD
SHIPS, ITEMS WHICH ARE THE SUBJECT OF EXISTING CMPI'S. FURTHER,
ALTHOUGH THERE MAY BE VARIATIONS IN LABOR RELATIONS AND PERSONNEL
POLICIES TO CONFORM TO AREA OR LOCAL CONDITIONS, IT IS CLEAR THAT SUCH
VARIATIONS ARE SUBJECT TO APPROVAL AND MODIFICATION AT THE NATIONAL
HEADQUARTERS LEVEL. IN VIEW OF THE NATIONAL HEADQUARTERS' INVOLVEMENT
IN SUCH MATTERS IN THE PAST AND THE LACK OF ANY EVIDENCE THAT SUCH
INVOLVEMENT WAS ON AN AD HOC BASIS OR WILL BE DISCONTINUED IN THE
FUTURE, IN MY OPINION, THE ACTIVITY HAS NOT DEMONSTRATED THAT GRANTING
THE PETITIONED FOR UNIT WOULD NECESSARILY UPSET ITS EXISTING BARGAINING
SITUATION AND THEREBY HINDER EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. /4/
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491, AS AMENDED: /5/
ALL LICENSED MARINE ENGINEERS IN ALL AREAS OF THE MILITARY SEALIFT
COMMAND, EXCLUDING EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, ENGINEERS ON VESSELS OPERATED BY
FOREIGN NATIONALS, MANAGEMENT OFFICIALS, OTHER SUPERVISORS, AND GUARDS
AS DEFINED IN THE ORDER. /6/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN
THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE MARINE ENGINEERS'
BENEFICIAL ASSOCIATION, DISTRICT NO. 1, PACIFIC COAST DISTRICT, AFL-CIO.
DATED, WASHINGTON, D.C.
JANUARY 22, 1973
/1/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/2/ THE MEBA AND THE ACTIVITY AGREE THAT LICENSED MARINE ENGINEERS ON
VESSELS WHICH ARE OPERATED BY FOREIGN NATIONALS SHOULD BE EXCLUDED FROM
ANY UNIT FOUND APPROPRIATE. IN THIS CONNECTION, IT APPEARS FROM THE
RECORD THAT NEGOTIATED AGREEMENTS ARE IN EXISTENCE WHICH MAY BAR THE
INCLUSION OF SUCH EMPLOYEES IN THE UNIT SOUGHT. AS THE PARTIES AGREE
WITH RESPECT TO THE EXCLUSION OF LICENSED MARINE ENGINEERS ON VESSELS
OPERATED BY THE FOREIGN NATIONALS, I FIND IT UNNECESSARY TO DECIDE
WHETHER OR NOT SUCH NEGOTIATED AGREEMENTS WOULD CONSTITUTE BARS.
/3/ THIS FIGURE DOES NOT INCLUDE THOSE LICENSED MARINE ENGINEERS ON
VESSELS OPERATED BY FOREIGN NATIONALS. IT WAS NOTED THAT THE ACTIVITY
DOES NOT EMPLOY LICENSED MARINE ENGINEERS IN ITS EUROPEAN AREA COMMAND.
/4/ THE EVIDENCE AS TO WHETHER A REQUESTED UNIT "WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS" IS WITHIN THE
SPECIAL KNOWLEDGE OF, AND MUST BE SUBMITTED BY, THE AGENCY INVOLVED.
SEE DEPARTMENT OF THE NAVY, ALAMEDA NAVAL AIR STATION, FLRC NO. 71A-9.
THE ACTIVITY WAS ACCORDED A FULL OPPORTUNITY AT THE HEARING TO INTRODUCE
ANY SUCH EVIDENCE IT DESIRED AS TO WHETHER THE PROPOSED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE
MEBA TOOK EXCEPTION TO THE HEARING OFFICER'S ALLOWING CERTAIN EVIDENCE
WITH REGARD TO THE IMPACT OF THE UNIT SOUGHT ON EFFICIENCY OF AGENCY
OPERATIONS. IN REACHING THE DECISION HEREIN, I HAVE CONSIDERED THE
ENTIRE RECORD, INCLUDING THE EVIDENCE EXCEPTED TO BY THE MEBA, AS I FIND
THAT THE HEARING OFFICER'S ACCEPTANCE OF SUCH EVIDENCE WAS PROPER.
/5/ ALTHOUGH THE RECORD REVEALS THAT LICENSED MARINE ENGINEERS AT THE
VARIOUS AREA COMMANDS HAVE LIMITED WORK CONTACTS WITH EACH OTHER, ON
BALANCE, THIS FACT WAS NOT CONSIDERED SUFFICIENT TO WARRANT A CONTRARY
CONCLUSION UNDER THE CIRCUMSTANCES SET FORTH ABOVE.
/6/ I FIND THAT BY PETITIONING FOR EXCLUSIVE RECOGNITION AND
PROCEEDING TO AN ELECTION IN THE UNIT SOUGHT, THE MEBA WILL HAVE, IN
EFFECT, WAIVED ITS EXCLUSIVE REPRESENTATION STATUS WITH RESPECT TO
LICENSED MARINE ENGINEERS IN THE EXCLUSIVELY RECOGNIZED UNITS
ENCOMPASSED BY THE PETITION HEREIN. ACCORDINGLY, THE MEBA MAY CONTINUE
TO REPRESENT THOSE EMPLOYEES ON AN EXCLUSIVE BASIS ONLY IN THE EVENT IT
IS CERTIFIED IN THE UNIT PETITIONED FOR IN THE SUBJECT CASE. SEE
DEPARTMENT OF THE ARMY, U.S. ELECTRONICS COMMAND, FORT MONMOUTH, NEW
JERSEY, A/SLMR NO. 83 AT FOOTNOTE 2.
3 A/SLMR 244; P. 82; CASE NO. 50-5569(25); JANUARY 22, 1973.
FIFTH U.S. ARMY,
CAMP MCCOY, WISCONSIN
86TH ARMY RESERVE COMMAND (ARCOM),
AREA ORGANIZATIONAL MAINTENANCE
SHOP G-49
A/SLMR NO. 244
THIS CASE INVOLVES A REPRESENTATION PETITION FILED BY LOCAL 2144,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, FOR A UNIT OF ALL
CIVILIAN EMPLOYEES ASSIGNED TO AREA ORGANIZATIONAL MAINTENANCE SHOP
G-49, MILWAUKEE, WISCONSIN, ONE OF 11 SUCH SHOPS IN THE 86TH ARMY
RESERVE COMMAND (ARCOM), FIFTH U.S. ARMY, CAMP MCCOY, WISCONSIN. THE
PETITIONER CONTENDS THAT THE PETITIONED FOR UNIT, STANDING ALONE, IS
APPROPRIATE, AND ALTERNATIVELY, THE CLAIMED EMPLOYEES SHARE A COMMUNITY
OF INTEREST WITH AN EXISTING CERTIFIED UNIT ENCOMPASSING CERTAIN
EMPLOYEES OF THE FOUR ARCOMS OF THE FIFTH U.S. ARMY LOCATED IN MILWAUKEE
WHICH IS REPRESENTED EXCLUSIVELY BY THE PETITIONER. THE ACTIVITY
ASSERTS THE PETITIONED FOR UNIT IS INAPPROPRIATE BECAUSE IT WOULD
FRAGMENTIZE THE 86TH ARCOM.
THE 11 AREA ORGANIZATIONAL MAINTENANCE SHOPS, 6 IN ILLINOIS AND 5 IN
WISCONSIN, UNDER THE DIRECTION OF THE CHIEF OF MAINTENANCE, 86TH ARCOM
HEADQUARTERS, CHICAGO, ILLINOIS, HAVE AS THEIR OVERALL FUNCTION THE
FURNISHING OF EQUIPMENT MAINTENANCE SUPPORT FOR U.S. ARMY RESERVE UNITS.
THE CIVILIAN EMPLOYEE COMPLEMENT OF SHOP G-49 CONSISTS OF ONE GENERAL
SCHEDULE (GS) AND 14 WAGE (WG), AND IT APPEARS THAT THEY PERFORM
ESSENTIALLY THE SAME DUTIES AS ARE PERFORMED BY OTHER EMPLOYEES WITH
SIMILAR SKILLS AND JOB CLASSIFICATIONS IN THE 86TH ARCOM. ON OCCASION,
EMPLOYEES OF SHOP G-49 HAVE BEEN DETAILED TO ASSIST ANOTHER SHOP AT
DEPERE, WISCONSIN. PERSONNEL ACTIVITIES FOR THE ARCOM ARE CENTRALIZED
IN THE FIFTH U.S. ARMY CIVILIAN PERSONNEL OFFICE, CAMP MCCOY.
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT DOES NOT
CONSTITUTE A DISTINCT AND HOMOGENOUS GROUPING OF THE ACTIVITY'S
EMPLOYEES. HE FOUND THAT NEITHER FUNCTIONALLY NOR ADMINISTRATIVELY DOES
THE CLAIMED UNIT REFLECT THAT THE EMPLOYEES THEREIN SHARE A SEPARATE AND
DISTINCT COMMUNITY OF INTEREST FROM CERTAIN OTHER EMPLOYEES IN THE 86TH
ARCOM. ADDITIONALLY, HE FOUND THAT SUCH A UNIT WOULD, IN EFFECT,
FURTHER DIVIDE AND FRAGMENT, SOLELY ON THE BASIS OF GEOGRAPHIC LOCATION,
THE 86TH ARCOM, AND COULD NOT REASONABLY BE EXPECTED TO PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
FIFTH U.S. ARMY,
CAMP MCCOY, WISCONSIN,
86TH ARMY RESERVE COMMAND (ARCOM)
AREA ORGANIZATIONAL MAINTENANCE
SHOP G-49 /1/
AND
LOCAL 2144,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER PATRICIA ROBERTS. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED. /3/
UPON THE ENTIRE RECORD OF THIS CASE, INCLUDING A BRIEF SUBMITTED BY
THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER SEEKS AN ELECTION IN A UNIT COMPOSED OF ALL
CIVILIAN EMPLOYEES OF THE FIFTH U.S. ARMY, CAMP MCCOY, WISCONSIN, 86TH
ARMY RESERVE COMMAND (ARCOM), ASSIGNED TO AREA ORGANIZATIONAL
MAINTENANCE SHOP G-49, HEREIN CALLED SHOP G-49, AT 5356 NORTH TEUTONIA
AVENUE, MILWAUKEE, WISCONSIN, EXCLUDING MANAGEMENT OFFICIALS,
SUPERVISORS, GUARDS, PROFESSIONAL EMPLOYEES, AND EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
THE PETITIONER CONTENDS THAT THE PETITIONED FOR UNIT, STANDING ALONE,
IS APPROPRIATE, AND ALTERNATIVELY, THE CLAIMED EMPLOYEES SHARE A
COMMUNITY OF INTEREST WITH AN EXISTING CERTIFIED UNIT LOCATED IN
MILWAUKEE WHICH IS REPRESENTED EXCLUSIVELY BY THE PETITIONER. /4/ THE
ACTIVITY ASSERTS THE PETITIONED FOR UNIT IS INAPPROPRIATE BECAUSE IT
WOULD FRAGMENTIZE THE 86TH ARCOM, AND, AS A CONSEQUENCE, WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IT
FURTHER IS OF THE VIEW THAT THE EMPLOYEES IN THE CLAIMED UNIT HAVE THE
SAME COMMUNITY OF INTEREST AS ALL EMPLOYEES OF THE 86TH ARCOM AND THAT
PRIOR DECISIONS OF THE ASSISTANT SECRETARY HAVE FOUND UNITS APPROPRIATE
ON A COMMAND /5/ RATHER THAN A GEOGRAPHIC BASIS. /6/
THERE ARE 13 MAJOR ARCOM'S ALL OF WHICH REPORT TO THE COMMANDING
GENERAL, FIFTH U.S. ARMY. EACH ARCOM FUNCTIONS INDEPENDENTLY FROM OTHER
ARCOM'S, AND THE COMMANDING GENERAL OF ONE COMMAND HAS NO CONTROL OVER
EMPLOYEES OF ANOTHER COMMAND REGARDLESS OF GEOGRAPHIC LOCATION. THE
CIVILIAN PERSONNEL OFFICE SERVICING THE FIFTH U.S. ARMY AT CAMP MCCOY,
HAS BEEN DELEGATED RESPONSIBILITY FOR PERSONNEL ADMINISTRATION BY THE
COMMANDING GENERAL, FIFTH U.S. ARMY. IT IS THE EMANATING SOURCE FOR
MOST PERSONNEL ACTIONS IN THE 13 ARCOM'S. IN THIS CONNECTION,
OPPORTUNITIES FOR PROMOTION IN EACH COMMAND ARE POSTED THROUGHOUT THE 13
ARCOM'S; THE FINAL AUTHORITY FOR HIRING AND ADVERSE RESTS WITH THAT
CIVILIAN PERSONNEL OFFICE; GRIEVANCE AND APPEALS PROCEDURES ARE UNIFORM
THROUGHOUT THE 13 ARCOMS; AND THE CIVILIAN PERSONNEL OFFICER, CAMP
MCCOY, IS THE PRINCIPAL POINT OF CONTACT FOR CONDUCTING LABOR-MANAGEMENT
RELATIONS THROUGHOUT THE AREA HE SERVICES. ALSO, WHILE THE COMPETITIVE
AREAS FOR REDUCTIONS-IN-FORCE ARE THE COMMUTING AREAS, THE CIVILIAN
PERSONNEL OFFICE PREPARES RETENTION REGISTERS AND MAINTAINS RECORDS OF
THE EMPLOYEES' PERFORMANCE. /7/
THE RECORD REVEALS THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT
HEREIN ARE IN SHOP G-49, WHICH IS ONE OF 11 AREA ORGANIZATIONAL
MAINTENANCE SHOPS IN THE 86TH ARCOM, 6 OF WHICH ARE LOCATED IN ILLINOIS
AND 5 IN WISCONSIN. THE OVERALL FUNCTION OF THESE SHOPS IS TO PROVIDE
EQUIPMENT MAINTENANCE SUPPORT FOR U.S. ARMY RESERVE UNITS. ALL OF THE
SHOPS ARE UNDER THE DIRECTION OF THE CHIEF OF MAINTENANCE, 86TH ARCOM,
LOCATED IN THE 86TH ARCOM HEADQUARTERS AT CHICAGO, ILLINOIS. THE RECORD
REVEALS THAT OPERATING INSTRUCTIONS AND DIRECTIVES FOR THE SHOPS ARE
ESTABLISHED BY THE FIFTH U.S. ARMY AND ARE ISSUED BY THE 86TH ARCOM.
THESE INSTRUCTIONS AND DIRECTIVES CONCERN A SHOP'S AREA OF
RESPONSIBILITY, THE UNITS TO RECEIVE SUPPORT, THE DEGREE AND MANNER IN
WHICH SUPPORT IS TO BE RENDERED, AND THE PRIORITY OF MAINTENANCE TO BE
ACCOMPLISHED.
SHOP G-49 IS THE ONLY AREA ORGANIZATIONAL MAINTENANCE SHOP LOCATED IN
THE CITY OF MILWAUKEE AND HAS AS ITS AREA OF RESPONSIBILITY THE
SERVICING OF ALL FIFTH U.S. ARMY RESERVE UNITS IN THE
MILWAUKEE-PEWAUKEE, WISCONSIN, AREA. THE CIVILIAN EMPLOYEE COMPLEMENT
OF THE SHOP CONSISTS OF ONE GENERAL SCHEDULE (GS) EMPLOYEE AND 14 WAGE
GRADE (WG) EMPLOYEES. IN VIEW OF THE AREA ORGANIZATIONAL MAINTENANCE
SHOPS' COMMON MISSION AND FUNCTIONS, IT APPEARS THAT THE EMPLOYEES OF
SHOP G-49 SHARE SIMILAR SKILLS AND CLASSIFICATIONS WITH THOSE EMPLOYEES
OF THE OTHER MAINTENANCE SHOPS UNDER THE 86TH ARCOM. EVIDENCE ADDUCED
AT THE HEARING FURTHER REVEALS THAT, ON OCCASION, EMPLOYEES OF SHOP G-49
HAVE BEEN DETAILED TO ASSIST SHOP G-51 AT DEPERE, WISCONSIN.
UNDER THE CIRCUMSTANCES, I FIND THE PETITIONED FOR UNIT DOES NOT
CONSTITUTE A DISTINCT AND HOMOGENOUS GROUPING OF THE ACTIVITY'S
EMPLOYEES. THE RECORD SHOWS THAT THE EMPLOYEES IN THE CLAIMED UNIT ARE
ONLY SOME OF THOSE IN THE 86TH ARCOM PERFORMING RELATED FUNCTIONS.
THUS, IT APPEARS THAT THE EMPLOYEE IN THE UNIT SOUGHT PERFORM
ESSENTIALLY THE SAME DUTIES AS ARE PERFORMED BY OTHER EMPLOYEES WITH
SIMILAR SKILLS AND JOB CLASSIFICATIONS IN THE 86TH ARCOM. FURTHER,
PERSONNEL ACTIVITIES FOR THE 86TH ARCOM ARE CENTRALIZED IN THE CIVILIAN
PERSONNEL OFFICE, CAMP MCCOY, WISCONSIN. THUS, NEITHER FUNCTIONALLY NOR
ADMINISTRATIVELY DOES THE CLAIMED UNIT REFLECT THAT THE EMPLOYEES
THEREIN SHARE A SEPARATE AND DISTINCT COMMUNITY OF INTEREST FROM CERTAIN
OTHER EMPLOYEES IN THE 86TH ARCOM. MOREOVER, IN MY VIEW, THE UNIT
PROPOSED BY THE PETITIONER WOULD, IN EFFECT, FURTHER DIVIDE AND
FRAGMENT, SOLELY ON THE BASIS OF GEOGRAPHIC LOCATION, THE 86TH ARCOM
SERVICED BY THE CIVILIAN PERSONNEL OFFICE, CAMP MCCOY, AND COULD NOT
REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OR
AGENCY OPERATIONS.
ACCORDINGLY, I SHALL DISMISS THE PETITION HEREIN. /8/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 50-5569(25) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 22, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ AT THE HEARING AN ISSUE WAS RAISED CONCERNING THE ALLEGED REFUSAL
OF THE ACTIVITY TO GRANT ADMINISTRATIVE LEAVE TO A PETITIONER'S WITNESS.
IN MY VIEW, THE PROPER FORUM TO RAISE AN ISSUE CONCERNING AN ALLEGED
IMPROPER REFUSAL TO GRANT SUCH LEAVE IS THROUGH THE UNFAIR LABOR
PRACTICE PROCEDURES. SEE DEPARTMENT OF THE NAVY AND THE U.S. NAVAL
WEAPONS STATION, A/SLMR NO. 139. ACCORDINGLY, I WILL NOT PASS UPON THIS
ISSUE IN THIS PROCEEDING.
/4/ THE RECORD REVEALS THAT THE PETITIONER IS THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF A UNIT OF CERTAIN EMPLOYEES OF THE FOUR FIFTH U.S.
ARMY ARCOMS WHICH HAVE RESERVE UNITS IN FIVE RESERVE CENTERS IN
MILWAUKEE: NAMELY, THE 416TH ENGINEER COMMAND, THE 425TH TRANSPORTATION
BRIGADE, AND THE 86TH ARCOM, ALL HEADQUARTERED IN CHICAGO, ILLINOIS, AND
THE 84TH DIVISION (TRAINING) HEADQUARTERED IN MILWAUKEE. EMPLOYEES OF
SHOP G-49 ARE NOT INCLUDED IN THE UNIT.
/5/ SEE FIRST U.S. ARMY, 83RD ARMY RESERVE COMMAND (ARCOM), U.S.
ARMY SUPPORT FACILITY (FORT HAYES), COLUMBUS, OHIO, A/SLMR NO. 35.
/6/ SEE DEPARTMENT OF THE ARMY, HEADQUARTERS, CAMP MCCOY, WISCONSIN,
ST. LOUIS METROPOLITAN AREA, A/SLMR NO. 166.
/7/ SEE DEPARTMENT OF THE ARMY, HEADQUARTERS, CAMP MCCOY, WISCONSIN,
ST. LOUIS METROPOLITAN AREA, CITED ABOVE, WHICH WAS INTRODUCED INTO
EVIDENCE IN THIS CASE BY THE ACTIVITY WITHOUT OBJECTION BY THE
PETITIONER.
/8/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO PASS
UPON THE ACTIVITY'S REQUEST, SET FORTH IN ITS BRIEF, THAT I ACCEPT AS A
POST-HEARING EXHIBIT ITS LETTER OF JANUARY 7, 1971, TO THE CHICAGO
LABOR-MANAGEMENT SERVICES ADMINISTRATION AREA OFFICE SETTING FORTH ITS
POSITION WITH RESPECT TO THE PETITIONED FOR UNIT.
3 A/SLMR 243; P. 77; CASE NO. 22-2890; JANUARY 22, 1973.
DEPARTMENT OF THE ARMY,
UNITED STATES ARMY BASE COMMAND,
OKINAWA
A/SLMR NO. 243
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1678 (AFGE) SEEKING A
UNIT OF ALL U.S. CITIZEN EMPLOYEES OF THE UNITED STATES ARMY BASE
COMMAND, OKINAWA, IRRESPECTIVE OF PHYSICAL LOCATION. THE ACTIVITY
CONTENDED THAT THE APPROPRIATE UNIT SHOULD BE LIMITED TO EMPLOYEES
LOCATED ON OKINAWA. EVIDENCE ALSO WAS ADDUCED AS TO THE SUPERVISORY
STATUS OF NONE EMPLOYEE JOB CLASSIFICATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE CLAIMED UNIT WAS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS CONNECTION, THE
ASSISTANT SECRETARY NOTED THAT THE EMPLOYEE COVERED BY THE PETITION
GENERALLY ARE GOVERNED BY COMMON PERSONNEL POLICIES AND PRACTICES, THAT
THEY SHARE SIMILAR SKILLS AND BACKGROUNDS, THAT THEY PERFORM SIMILAR JOB
FUNCTIONS, AND THAT NO LABOR ORGANIZATION IS SEEKING TO REPRESENT
OFF-ISLAND EMPLOYEES ON A SEPARATE BASIS. UNDER THESE CIRCUMSTANCES,
THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE CLAIMED
ACTIVITY-WIDE UNIT WHICH INCLUDED PROFESSIONAL EMPLOYEES.
DETERMINATIONS WERE MADE BY THE ASSISTANT SECRETARY AS TO THE
SUPERVISORY STATUS OF EMPLOYEES IN CERTAIN DISPUTED CLASSIFICATIONS.
FURTHER, ABSENT CONTRARY EVIDENCE, THE ASSISTANT SECRETARY FOUND THAT
THE PARTIES' AGREEMENTS CONCERNING PROFESSIONAL AND CONFIDENTIAL
EMPLOYEES WERE PROPER. ACCORDINGLY, HE ACCEPTED THE PARTIES' AGREEMENTS
IN THIS REGARD.
DEPARTMENT OF THE ARMY,
UNITED STATES ARMY BASE COMMAND,
OKINAWA /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
LOCAL 1678 /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE, JR. THE HEARING
OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR
AND ARE HEREBY AFFIRMED. /3/
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY BOTH
PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER SEEKS AN ELECTION IN A UNIT OF ALL NONSUPERVISORY
U.S. CITIZEN EMPLOYEES OF THE UNITED STATES ARMY BASE COMMAND, OKINAWA,
IRRESPECTIVE OF PHYSICAL LOCATION, BUT EXCLUDING SUPERVISORY PERSONNEL,
MANAGEMENT OFFICIALS, GUARDS AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL
WORK IN OTHER THAN PURELY CLERICAL CAPACITY. /4/
THE ACTIVITY CONTENDS THAT THE PETITIONED FOR UNIT IS TOO BROAD IN
THAT IT INCLUDES EMPLOYEES STATIONED IN LOCATIONS OTHER THAN OKINAWA AND
ITS IMMEDIATE VICINITY. IT IS SUBMITTED BY THE ACTIVITY THAT SUCH
EMPLOYEES DO NOT HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
WITH THE EMPLOYEES ON OKINAWA AND THAT TO INCLUDE SUCH EMPLOYEES IN THE
PROPOSED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. FURTHER, CONTRARY TO THE VIEW OF THE PETITIONER, THE
ACTIVITY ASSERTS THAT ALL EMPLOYEES WHOSE SUPERVISORY AUTHORITY IS
LIMITED SOLELY TO FOREIGN NATIONALS AND MILITARY PERSONNEL PROPERLY
SHOULD BE EXCLUDED FROM THE UNIT.
UNIT DETERMINATION
THE UNITED STATES ARMY BASE COMMAND, OKINAWA (USARBCO) IS CHARGED
WITH PROVIDING ADMINISTRATIVE AND LOGISTICAL SUPPORT TO UNITED STATES
ARMY UNITS, BASES AND ESTABLISHMENTS IN THE WESTERN PACIFIC. FORMERLY
KNOWN AS HEADQUARTERS, UNITED STATES ARMY RYUKYU ISLANDS, THE ACTIVITY
WAS REDESIGNATED USARBCO ON MAY 15, 1972, CONCURRENT WITH THE REVERSION
OF OKINAWA TO JAPAN. /5/
THE TOTAL COMPLEMENT OF U.S. CITIZENS EMPLOYEES OF USARBCO IS 1,388.
WITH THE EXCEPTION OF APPROXIMATELY 45 EMPLOYEES STATIONED AT OFF-ISLAND
LOCATIONS, /6/ ALL OF THESE U.S. CITIZEN EMPLOYEES ARE LOCATED ON
OKINAWA OR IN ITS IMMEDIATE VICINITY. THE EVIDENCE ESTABLISHES THAT
OFF-ISLAND EMPLOYEES SHARE SIMILAR SKILLS AND BACKGROUNDS AND PERFORM
SIMILAR JOB FUNCTIONS AS THE EMPLOYEES STATIONED ON OKINAWA.
THE RECORD REVEALS THAT ALL EMPLOYEES OF USARBCO ARE ENGAGED IN THE
ACCOMPLISHMENT OF THE SAME MISSION AND ARE SUBJECT TO THE SAME GENERAL
WORKING CONDITIONS. ADDITIONALLY, ALL EMPLOYEES UTILIZE THE SAME ARMY
GRIEVANCE PROCEDURE. WITH THE EXCEPTION OF CERTAIN OFF-ISLAND EMPLOYEES
LOCATED IN TAIWAN AND THE PHILIPPINES WHO ARE PROVIDED PERSONNEL
SERVICES ON THE BASIS OF CROSS-SERVICE AGREEMENTS WITH THE AIR FORCE,
/7/ ALL USARBCO EMPLOYEES ARE SERVICED BY USARBCO PERSONNEL OFFICES AND
ARE IN A SINGLE COMPETITIVE AREA FOR THE PURPOSE OF REDUCTION IN FORCE.
THUS, OFF-ISLAND EMPLOYEES, OTHER THAN THOSE IN TAIWAN AND THE
PHILIPPINES COVERED UNDER CROSS-SERVICE AGREEMENTS, COULD "BUMP" INTO A
POSITION ON OKINAWA IN THE EVENT OF A REDUCTION IN FORCE, OR TRANSFER TO
OKINAWA IF A VACANCY EXISTS. FURTHER, THE RECORD REVEALS THAT ALL
USARBCO EMPLOYEES, WITH THE EXCEPTION OF OFF-ISLAND EMPLOYEES OPERATING
UNDER CROSS-SERVICE AGREEMENTS, ENJOY A COMMON MERIT PROMOTION PROGRAM.
/8/
I NOTE THE FACT THAT THE EMPLOYEES COVERED BY THE INSTANT PETITION
GENERALLY ARE GOVERNED BY COMMON PERSONNEL POLICIES AND PRACTICES AND
THAT THEY SHARE SIMILAR SKILLS AND BACKGROUNDS AND PERFORM SIMILAR JOB
FUNCTIONS. FURTHER, NO LABOR ORGANIZATION IS SEEKING TO REPRESENT THE
OFF-ISLAND EMPLOYEES ON A SEPARATE BASIS. THUS, UNDER ALL THE
CIRCUMSTANCES, I FIND THAT THE ACTIVITY-WIDE UNIT, AS PROPOSED BY THE
PETITIONER, IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. ACCORDINGLY, I SHALL DIRECT AN ELECTION IN THE UNIT
FOUND APPROPRIATE.
ELIGIBILITY ISSUES
AS NOTED ABOVE, THE PARTIES DISAGREED AS TO THE SUPERVISORY STATUS OF
THOSE EMPLOYEES WHOSE SUPERVISORY AUTHORITY IS LIMITED SOLELY TO FOREIGN
NATIONALS AND MILITARY PERSONNEL. IN DEPARTMENT OF THE AIR FORCE,
MCCONNELL AIR FORCE BASE, KANSAS, A/SLMR NO. 134, I FOUND THAT IN
DETERMINING THE SUPERVISORY STATUS OF CERTAIN INDIVIDUALS, IT WAS
IMMATERIAL WHETHER THE SUPERVISORY AUTHORITY INVOLVED WAS EXERCISED OVER
UNIT EMPLOYEES, NON-UNIT EMPLOYEES, OR OTHER "PERSONS," SUCH AS MILITARY
PERSONNEL, WHO ARE NOT "EMPLOYEES" WITHIN THE MEANING OF SECTION 2(B) OF
THE ORDER. RATHER, IN DETERMINING THE SUPERVISORY STATUS OF
INDIVIDUALS, I STATED THAT THE DETERMINATIVE FACTORS WOULD BE THE DUTIES
PERFORMED BY THE ALLEGED SUPERVISOR AND NOT THE TYPE OF PERSONNEL
WORKING UNDER HIM. I FIND THIS RATIONALE EQUALLY APPLICABLE IN THE
INSTANT CASE. ACCORDINGLY, ALL EMPLOYEES WHO, IN FACT, EXERCISE
SUPERVISORY AUTHORITY OVER U.S. CITIZENS, FOREIGN NATIONALS OR MILITARY
PERSONNEL WILL BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE HEREIN.
AT THE HEARING IN THIS MATTER, THE PARTIES ADDUCED EVIDENCE ON THE
SUPERVISORY STATUS OF THE NINE EMPLOYEE CLASSIFICATIONS DISCUSSED BELOW.
/9/
SUPERVISORY ACCOUNTING TECHNICIAN (CHIEF OF THE REIMBURSABLE BILLING
SECTION)
THE RECORD REVEALS THAT THIS POSITION IS LOCATED IN THE STOCK ROOM
DIVISION OF THE DIRECTORATE FOR COMPTROLLER ACTIVITIES. THE INCUMBENT
PERFORMS BASIC BOOKKEEPING DUTIES, SUCH AS POSTING ACCOUNTS IN LEDGERS
AND MAINTAINING VARIOUS OTHER FINANCIAL RECORDS. THERE ARE FOUR
MILITARY PERSONNEL AND THREE FOREIGN NATIONALS CURRENTLY ASSIGNED TO THE
INCUMBENT'S SECTION.
THE RECORD INDICATES THAT THE INCUMBENT CAN RECOMMEND THE TRANSFER OF
AN EMPLOYEE IF THE LATTER'S PERFORMANCE IS UNSATISFACTORY, APPROVES
LEAVE FOR THE FOREIGN NATIONALS IN THE SECTION AND INITIATES ACHIEVEMENT
AWARDS. MOREOVER, THE EVIDENCE ESTABLISHES THAT THE INCUMBENT HAS THE
AUTHORITY TO ISSUE WRITTEN REPRIMANDS TO THE FOREIGN NATIONALS IN THE
SECTION WHEN SUCH ACTION IS DEEMED WARRANTED.
I FIND THAT THE FOREGOING EVIDENCE ESTABLISHES THAT THE SUPERVISORY
ACCOUNTING TECHNICIAN, CHIEF OF THE REIMBURSABLE BILLING SECTION, IS A
SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ACCORDINGLY, I SHALL EXCLUDE THIS EMPLOYEE FROM THE UNIT FOUND
APPROPRIATE.
MUSEUM CURATOR
THE MUSEUM CURATOR, GS-11, IS EMPLOYED IN THE DIRECTORATE FOR PLANS
AND OPERATIONS. THE INCUMBENT IS RESPONSIBLE FOR THE OPERATION OF THE
ARMED FORCES MUSEUM LOCATED ON OKINAWA. THE RECORD REVEALS THAT THE
DUTIES OF THE EMPLOYEE IN THIS CLASSIFICATION INCLUDE, AMONG OTHER
THINGS, THE PRESENTATION ON A DAILY BASIS OF A FILM TO THE PUBLIC OF THE
BATTLE OF OKINAWA, AND THE PREPARATION AND PRESENTATION OF EXHIBITS. IN
REGARD TO HIS JOB FUNCTIONS, THE RECORD REVEALS THAT THE MUSEUM CURATOR
HAS SUBSTANTIAL INDEPENDENCE AND RECEIVES LITTLE SUPERVISION.
THE MUSEUM CURATOR IS AIDED IN HIS FUNCTIONS BY TWO FOREIGN
NATIONALS. THE RECORD INDICATES THAT THE MUSEUM CURATOR DETERMINES THE
PRIORITY OF WORK TO BE PERFORMED IN THE MUSEUM AND ASSIGNS WORK TO THE
FOREIGN NATIONALS ACCORDINGLY. ADDITIONALLY, HE SIGNS THE FOREIGN
NATIONALS' ATTENDANCE SHEETS AND APPROVES THEIR LEAVE.
BASED UPON THE FOREGOING, I FIND THE MUSEUM CURATOR TO BE A
SUPERVISOR OF THE TWO FOREIGN NATIONALS WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER. ACCORDINGLY, I SHALL EXCLUDE THIS EMPLOYEE FROM THE
UNIT FOUND APPROPRIATE.
SUPERVISORY INVENTORY MANAGEMENT ASSISTANT
THIS POSITION IS LOCATED IN THE DATA SYSTEMS DIRECTORATE. THE
INCUMBENT MONITORS COMPUTER PROGRAM TESTS AND DATES RECORDS. WORKING IN
THE SAME ROOM WITH THE INCUMBENT ARE SIX SCHEDULERS.
THE RECORD REVEALS THAT THE EMPLOYEE IN THIS CLASSIFICATION HAS NO
AUTHORITY TO TAKE DISCIPLINARY ACTION AGAINST ANY EMPLOYEE. MOREOVER,
WHILE HE WORKS WITH CERTAIN SCHEDULERS AND PROGRAMMERS, THE EVIDENCE
ESTABLISHES THAT HE NEITHER DIRECTS THESE EMPLOYEES NOR EVALUATES THEIR
PERFORMANCE. FURTHER, THE RECORD REVEALS THAT PERSONNEL ACTIONS WITH
REGARD TO THESE EMPLOYEES MUST BE INITIATED BY THE CHIEF OF THE BRANCH.
BASED ON THE FOREGOING, I FIND THAT THE SUPERVISORY INVENTORY
MANAGEMENT ASSISTANT DOES NOT POSSESS THE INDICIA OF SUPERVISORY
AUTHORITY AS SET FORTH IN SECTION 2(C) OF THE ORDER. ACCORDINGLY, THIS
EMPLOYEE WILL BE INCLUDED IN THE UNIT FOUND APPROPRIATE.
HEARING MECHANICAL EQUIPMENT FOREMAN
THE POSITION OF HEATING MECHANICAL EQUIPMENT FOREMAN, WBS-9, IS
LOCATED IN THE DIRECTORATE FOR FACILITIES ENGINEERING. THE INCUMBENT IS
RESPONSIBLE FOR THE MAINTENANCE OF THE HEATING SYSTEM CONTAINED IN HOT
WATER BOILERS AND INCINERATORS.
THE RECORD REVEALS THAT THE INCUMBENT WORKS WITH TEN FOREIGN
NATIONALS IN ACCOMPLISHING HIS DUTIES. IN THIS REGARD, THE EVIDENCE
ESTABLISHES THAT HE EFFECTIVELY DIRECTS THE WORK OF THESE INDIVIDUALS,
AND DETERMINES HOW MANY FOREIGN NATIONALS TO ALLOCATE TO A PARTICULAR
PROJECT AND WHAT WORK THEY WILL PERFORM. MOREOVER, HE HAS THE AUTHORITY
TO RECOMMEND A FOREIGN NATIONAL FOR A SUSTAINED SUPERIOR PERFORMANCE
AWARD.
IN THESE CIRCUMSTANCES, I FIND THE HEATING MECHANICAL EQUIPMENT
FOREMAN TO BE A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER. ACCORDINGLY, I SHALL EXCLUDE THIS EMPLOYEE FROM THE UNIT FOUND
APPROPRIATE.
MARINE CARGO PLANNER
THE INCUMBENT IN THIS POSITION IS RESPONSIBLE FOR ALLOCATING TONNAGES
OF MATERIALS TO A SPECIFIC AREA IN AN EMPTY VESSEL IN ORDER TO RENDER
THE VESSEL STABLE. TWO FOREIGN NATIONALS, WHO ARE LOCATED IN THE SAME
ROOM AS THE MARINE CARGO PLANNER, ARE ASSIGNED TO ASSIST HIM IN THIS
MISSION.
THE RECORD INDICATES THAT THE INCUMBENT ASSIGNS WORK TO THESE FOREIGN
NATIONALS. IN THIS CONNECTION, HE INSTRUCTS AND DIRECTS THE FOREIGN
NATIONALS AS TO THE PREPARATION OF FINAL STOW PLANS AND IS RESPONSIBLE
FOR REPORTING ON THE COMPETENCY OF THEIR WORK. THE RECORD INDICATES
ALSO THAT THE INCUMBENT HAS REJECTED A JOB APPLICANT.
IN THESE CIRCUMSTANCES, I FIND THE MARINE CARGO PLANNER TO BE A
SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ACCORDINGLY, I SHALL EXCLUDE THE EMPLOYEE FROM THE UNIT FOUND
APPROPRIATE.
AUTOMOTIVE EQUIPMENT MAINTENANCE GENERAL FOREMAN
THIS POSITION IS LOCATED IN THE DIRECTORATE FOR TRANSPORTATION
OPERATIONS. THE INCUMBENT INSPECTS AND REPAIRS AUTOMOTIVE EQUIPMENT.
LOCATED IN THE SAME MOTOR POOL WITH THE INCUMBENT ARE FIVE DEPARTMENT OF
ARMY CIVILIAN AND 66 FOREIGN NATIONALS.
THE RECORD REVEALS THAT THE INCUMBENT INTERVIEWS JOB APPLICANTS,
RECOMMENDS HIRING, AND MAKES A RECOMMENDATION AT THE END OF A
PROBATIONARY PERIOD AS TO WHETHER TO RETAIN A NEW EMPLOYEE. THE RECORD
FURTHER REVEALS THAT THE INCUMBENT PREPARES PERFORMANCE EVALUATIONS WITH
RESPECT TO THE FIVE CIVILIAN EMPLOYEES IN THE MOTOR POOL WHICH ARE
SUBJECT TO REVIEW AT HIGHER LEVELS AND THAT HE DIRECTS THE WORK OF
SUBORDINATE FOREMEN WHO, IN TURN, DIRECT THE WORK OF OTHERS.
BASED ON THE FOREGOING EVIDENCE, I FIND THE AUTOMOTIVE EQUIPMENT
MAINTENANCE GENERAL FOREMAN TO BE A SUPERVISOR WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER. ACCORDINGLY, I SHALL EXCLUDE THIS EMPLOYEE
FROM THE UNIT FOUND APPROPRIATE.
CHIEF OF THE INVENTORY CYCLE UNIT
THIS POSITION IS LOCATED IN THE DIRECTORATE OF SUPPLY. THE INCUMBENT
IS RESPONSIBLE FOR RECONCILING THE INVENTORY OF THE DEPOT FROM COMPUTER
PRINTOUTS. EIGHT FOREIGN NATIONALS ARE ASSIGNED TO ASSIST THE CHIEF IN
PERFORMING THIS FUNCTION.
THE RECORD SHOWS THAT THE INCUMBENT IS ACCOUNTABLE FOR AND DIRECTS
THE FOREIGN NATIONALS AND, IN THIS REGARD, EFFECTUATES THEIR WORK
ASSIGNMENTS. ALSO, WHEN A CHANGE IN OPERATING PROCEDURE OCCURS, THE
INCUMBENT IS RESPONSIBLE FOR IMPLEMENTING THE CHANGE IN HIS SECTION.
THE RECORD FURTHER SHOWS THAT THE EMPLOYEE IN THIS JOB CLASSIFICATION
HAS INTERVIEWED APPLICANTS FOR TEMPORARY JOBS AND HAS EFFECTIVELY
RECOMMENDED THAT THEY BE HIRED.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THE CHIEF OF THE
INVENTORY CYCLE UNIT TO BE A SUPERVISOR WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER. ACCORDINGLY, I SHALL EXCLUDE THIS EMPLOYEE FROM THE
UNIT FOUND APPROPRIATE.
MARINE CARGO SPECIALIST
THE MARINE CARGO SPECIALIST POSITION, GS-10, IS LOCATED IN THE
DIRECTORATE FOR TRANSPORTATION OPERATIONS. AN INCUMBENT IN THIS
POSITION IS RESPONSIBLE FOR ASSISTING A PRIVATE STEVEDORING CONTRACTOR
IN LOADING AND UNLOADING VESSELS.
ALTHOUGH THE RECORD REVEALS THAT THERE ARE APPROXIMATELY TEN
EMPLOYEES IN THIS CLASSIFICATION, IT IS UNCLEAR AS TO THE NUMBER OF
FOREIGN NATIONAL EMPLOYEES ASSIGNED TO EACH MARINE CARGO SPECIALIST FOR
THE PURPOSE OF ASSISTING HIM IN PERFORMING HIS JOB FUNCTIONS.
FURTHERMORE, THE RECORD IS UNCLEAR AS TO THE DEGREE OF DIRECTION
EXERCISED BY THESE EMPLOYEES OVER FOREIGN NATIONALS OR THE NATURE OF
THEIR DUTIES.
IN THE ABSENCE OF SPECIFIC INFORMATION CONCERNING THE INCUMBENT'S
DUTIES AND THE EXTENT TO WHICH HE PROVIDES DIRECTION TO THE FOREIGN
NATIONALS, I SHALL MAKE NO DETERMINATION AT THIS TIME WITH RESPECT TO
THIS CATEGORY'S INCLUSION IN OR EXCLUSION FROM THE UNIT FOUND
APPROPRIATE.
ASSISTANT GENERAL FOREMAN AND MASTER DIVER
THIS POSITION IS LOCATED IN THE MARINE MAINTENANCE SHOPS DIVISION OF
THE DIRECTORATE OF MARINE MAINTENANCE. THE INCUMBENT, WS-15, HAS A DUAL
MISSION: (1) TO REPAIR SHOPS FOR THE ARMY AND PROVIDE AN IN-DEPTH
MAINTENANCE PROGRAM, AND (2) TO ASSIST THE GENERAL FOREMAN IN THE
OPERATION OF THE VARIOUS SHOPS OF THE DIVISION. /10/
THE RECORD INDICATES THAT THE EMPLOYEE IN THIS CLASSIFICATION HAS
HELD MEETINGS WITH A JAPANESE LABOR ORGANIZATION REPRESENTING FOREIGN
NATIONALS ON OKINAWA PERTAINING TO GRIEVANCES FILED BY FOREIGN NATIONAL
EMPLOYEES. FURTHER, THE INCUMBENT HAS EFFECTIVELY REQUESTED VARIOUS
PERSONNEL ACTIONS, INCLUDING 60-DAY DETAILS FOR EMPLOYEES AND TRAVEL
REQUESTS, EFFECTIVELY REQUESTED REASSIGNMENT OF AN EMPLOYEE, AND HAS
INITIATED AN INCENTIVE AWARD. MOREOVER, IT APPEARS THAT IN THE GENERAL
FOREMAN'S ABSENCE, THE INCUMBENT ASSUMES THE GENERAL FOREMAN'S OVERALL
RESPONSIBILITIES.
IN THESE CIRCUMSTANCES, I FIND THE EMPLOYEE IN THIS CLASSIFICATION TO
BE A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ACCORDINGLY, I SHALL EXCLUDE THIS EMPLOYEE FROM THE UNIT FOUND
APPROPRIATE.
THE PARTIES AGREED THAT BECAUSE THE DIRECTORS OF THE VARIOUS
DIRECTORATES AS WELL AS HIGHER LEVEL OFFICIALS ARE INVOLVED IN LOCAL
LABOR RELATIONS POLICY DETERMINATIONS, THEIR SECRETARIES SHOULD BE
EXCLUDED FROM THE UNIT AS CONFIDENTIAL EMPLOYEES. AS THE RECORD
SUPPORTS THE PARTIES' AGREEMENT IN THIS REGARD, I FIND THE SECRETARIES
TO THE DIRECTORS OF THE ACTIVITY'S VARIOUS DIRECTORATES AS WELL AS TO
HIGHER LEVEL OFFICIALS TO BE CONFIDENTIAL EMPLOYEES. ACCORDINGLY, I
SHALL EXCLUDE SUCH EMPLOYEES FROM THE UNIT FOUND APPROPRIATE. /11/
DURING THE HEARING, THE PARTIES ALSO AGREED THAT EMPLOYEES IN THE
FOLLOWING CATEGORIES AND JOB SERIES ARE PROFESSIONAL EMPLOYEES WITHIN
THE MEANING OF THE ORDER: (1) ACCOUNTANTS AND AUDITORS-510 SERIES; (2)
MEDICAL DOCTORS-602 SERIES; (3) NURSES-610 SERIES (4) GENERAL
ENGINEERS-801 SERIES; (5) CIVIL ENGINEERS-810 SERIES; (6) MECHANICAL
ENGINEERS-830 SERIES; (7) ATTORNEYS-905 SERIES; AND (8)
PHYSICISTS-1310 SERIES. AS THERE IS NO EVIDENCE IN THE RECORD TO
INDICATE THAT THE PARTIES AGREEMENT IS INCONSISTENT WITH THE PURPOSES
AND POLICIES OF THE ORDER, I FIND THAT THE EMPLOYEES IN THE ABOVE
CATEGORIES ARE PROFESSIONAL EMPLOYEES.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE
FOLLOWING EMPLOYEES MAY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE
ORDER 11491:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
ARMY BASE COMMAND, OKINAWA, EXCLUDING CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
AS NOTED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION 10(B)(4) OF
THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT WITH EMPLOYEES
WHO ARE NOT PROFESSIONALS UNLESS THE MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY, THE DESIRE
OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I, THEREFORE, SHALL
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE UNITED STATES
ARMY BASE COMMAND, OKINAWA, EXCLUDING ALL NONPROFESSIONAL EMPLOYEES,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL EMPLOYEES OF THE UNITED STATES ARMY BASE
COMMAND, OKINAWA, EXCLUDING PROFESSIONAL EMPLOYEES, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1678.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1678. IN
THE EVENT THAT A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE
CAST IN FAVOR OF INCLUSION IN THE SAME UNIT AS NONPROFESSIONALS, THE
BALLOTS OF VOTING GROUP (A) SHALL BE COMBINED WITH THOSE OF VOTING GROUP
(B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED INDICATING WHETHER OR NOT
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1678,
WAS SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED IN PART, THEN,
UPON THE RESULTS OF THE ELECTION AMONG PROFESSIONAL EMPLOYEES. HOWEVER,
I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE
UNIT:
1. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT THE
FOLLOWING EMPLOYEES WILL CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE UNITED STATES
ARMY BASE COMMAND, OKINAWA, EXCLUDING CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
2. IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING TWO GROUPS OF EMPLOYEES WILL CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES OF THE UNITED STATES ARMY BASE
COMMAND, OKINAWA, EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, CONFIDENTIAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED BY THE ORDER.
(B) ALL EMPLOYEES OF THE UNITED STATES ARMY BASE COMMAND, OKINAWA,
EXCLUDING PROFESSIONAL EMPLOYEES, CONFIDENTIAL EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN
THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS.
ELIGIBLE TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE
OUT ILL OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO HAVE QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE
DESIGNATED PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED
BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1678.
DATED, WASHINGTON, D.C.
JANUARY 22, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS CORRECTED AT THE HEARING.
/2/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/3/ AT THE CLOSE OF THE HEARING, THE PETITIONER ENTERED A FORMAL
PROTEST CONCERNING THE ACTIVITY'S ALLEGED FAILURE TO GRANT
ADMINISTRATIVE LEAVE TO ITS WITNESSES. THE HEARING OFFICER REFERRED
THIS MATTER TO THE ASSISTANT SECRETARY FOR DECISION. IN MY VIEW, THE
PROPER FORUM TO RAISE AN ISSUE CONCERNING AN ALLEGED IMPROPER REFUSAL TO
GRANT ADMINISTRATIVE LEAVE TO CERTAIN WITNESSES IS THROUGH THE UNFAIR
LABOR PRACTICE PROCEDURES. SEE DEPARTMENT OF THE NAVY AND THE U.S.
NAVAL WEAPONS STATION, A/SLMR NO. 139. ACCORDINGLY, I DO NOT PASS UPON
THE PETITIONER'S CONTENTION IN THIS RESPECT.
/4/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/5/ THE RECORD REVEALS THAT THE PETITIONER WAS ACCORDED FINAL
RECOGNITION ON SEPTEMBER 17, 1962, FOR A UNIT OF ALL NONSUPERVISORS ON
OKINAWA. THIS RECOGNITION WAS TERMINATED ON JULY 1, 1970, PURSUANT TO
SECTION 24(C) OF EXECUTIVE ORDER 11491. ADDITIONALLY, EXCLUSIVE
RECOGNITION WAS ACCORDED THE PETITIONER ON JULY 8, 1964, FOR A UNIT OF
ALL U.S. CITIZEN SUPERVISORY PERSONNEL. SUBSEQUENTLY, EXCLUSIVE
RECOGNITION FOR THE UNIT OF SUPERVISORS WAS TERMINATED ON DECEMBER 31,
1970, PURSUANT TO SECTION 24(D) OF THE ORDER.
/6/ IN THIS REGARD, THE RECORD REVEALS THE FOLLOWING NUMBER OF
EMPLOYEES AND THEIR RESPECTIVE LOCATIONS: 11 EMPLOYEES - TAIWAN; 17
EMPLOYEES-PHILIPPINES; EMPLOYEES-SINGAPORE.
/7/ THE RECORD SHOWS THAT 8 OF THE 11 EMPLOYEES IN TAIWAN AND ALL OF
THE 17 EMPLOYEES IN THE PHILIPPINES OPERATE UNDER THIS TYPE OF
ARRANGEMENT.
/8/ USARBCO PERSONNEL OFFICES MAINTAIN LIMITED PERSONNEL RECORDS FOR
THOSE OFF-ISLAND EMPLOYEES PROVIDED PERSONNEL FUNCTIONS THROUGH
CROSS-SERVICE AGREEMENTS.
/9/ WITH THE EXCEPTION OF THE MARINE CARGO SPECIALIST CLASSIFICATION,
THE RECORD DOES NOT INDICATE THE NUMBER OF EMPLOYEES FALLING WITHIN EACH
OF THESE CLASSIFICATIONS. MOREOVER, IT IS APPARENT THAT THE PARTIES ARE
IN DISAGREEMENT AS TO THE SUPERVISORY STATUS OF A NUMBER OF OTHER
EMPLOYEE CLASSIFICATIONS. HOWEVER, AS NO TESTIMONY CONCERNING THESE
OTHER CLASSIFICATIONS WAS ADDUCED AT THE HEARING, I AM UNABLE TO MAKE
ANY FINDINGS WITH RESPECT TO SUCH CLASSIFICATIONS AND SHALL CONFINE MY
FINDINGS TO THOSE CLASSIFICATIONS WHERE EVIDENCE WAS ADDUCED.
/10/ THERE ARE EIGHT SHOPS IN THE DIVISION - ELECTRIC, MARINE
ELECTRIC, SHIPBUILDING, MACHINE, ENGINE OVERHAUL, BOAT BUILDING,
DRYDOCK, AND DIVING.
/11/ WITH RESPECT TO THE PETITIONER'S CONTENTION THAT SECRETARIES TO
THE CHIEFS AT THE BRANCH AND DIVISION LEVELS SHOULD BE EXCLUDED AS
CONFIDENTIAL EMPLOYEES, I FIND THAT THERE IS INSUFFICIENT EVIDENCE AS TO
THE EXTENT TO WHICH THESE CHIEFS ARE INVOLVED IN THE FORMULATION AND
EFFECTUATION OF MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS.
ACCORDINGLY, I SHALL MAKE NO FINDINGS WITH RESPECT TO THE SECRETARIES OF
THE BRANCH AND DIVISION CHIEFS.
3 A/SLMR 242; P. 60; CASE NO. 40-3520(CA 26); JANUARY 17, 1973.
U.S. ARMY HEADQUARTERS,
U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY,
FORT JACKSON, SOUTH CAROLINA
A/SLMR NO. 242
THIS UNFAIR LABOR PRACTICE PROCEEDING AGAINST THE RESPONDENT ACTIVITY
INVOLVES ALLEGED SECTION 19(A)(1) AND (6) VIOLATIONS OF THE EXECUTIVE
ORDER CHARGED BY THE COMPLAINANT, LOCAL 1909, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO.
THE HEARING EXAMINER FOUND THAT A STATEMENT BY THE RESPONDENT'S
LAUNDRY MANAGER TO A UNION STEWARD, TO SHUT UP UNTIL SPOKEN TO - IN THE
PRESENCE OF OTHER EMPLOYEES AT A MEETING CALLED BY THE LAUNDRY
MANAGER-CONSTITUTED A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. THE
HEARING EXAMINER ALSO FOUND THAT THE RESPONDENT VIOLATED SECTION
19(A)(6) BASED ON THE LATTER'S REFUSAL TO GRANT AN EMPLOYEE'S REQUEST TO
HAVE THE PRESIDENT OF THE COMPLAINANT PRESENT AT A MEETING WHICH WAS
CALLED BY MANAGEMENT FOR THE PURPOSE OF DISCUSSING A LETTER, SENT BY THE
LAUNDRY MANAGER TO THE EMPLOYEE, ON THE SUBJECT OF HER EXTENDED SICK
LEAVE.
THE ASSISTANT SECRETARY FOUND A SECTION 19(A)(6) VIOLATION BASED ON
THE LAUNDRY MANAGER'S HOLDING OF A FORMAL DISCUSSION WITH UNIT EMPLOYEES
WITHOUT AFFORDING THE COMPLAINANT'S PRESIDENT THE OPPORTUNITY TO ATTEND
SUCH A MEETING. HE BASED HIS DECISION ON THE VIEW THAT SECTION 10(E) OF
THE EXECUTIVE ORDER GIVES EXCLUSIVELY RECOGNIZED LABOR ORGANIZATIONS THE
"OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." HE NOTED THAT THE FACTS
SHOWED THAT THE MEETING WAS FORMAL IN NATURE AND CALLED BY THE LAUNDRY
MANAGER TO DISCUSS A MANAGEMENT POLICY AND PRACTICE WHICH HAD CAUSED THE
EMPLOYEE CONCERN. WHEN SHE AND THE STEWARD WERE CALLED INTO THE MEETING
AND ASKED TO EXPLAIN THE EMPLOYEE'S PROBLEM WITH THE LETTER, THE
EMPLOYEE AND THE STEWARD REQUESTED THE PRESENCE OF THE COMPLAINANT
PRESIDENT. THE LAUNDRY MANAGER WAS UNWILLING TO ACCEDE TO THEIR
REQUEST. THE ASSISTANT SECRETARY NOTED THAT IT IS NOT WITHIN THE
PURVIEW OF MANAGEMENT TO DECIDE WHO SHALL REPRESENT A LABOR ORGANIZATION
AT FORMAL DISCUSSIONS WITH EMPLOYEES OR EMPLOYEE REPRESENTATIVES
CONCERNING PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
A SECTION 19(A)(1) VIOLATION ALSO WAS FOUND BY THE ASSISTANT
SECRETARY ON THE BASIS OF REPONDENT'S REMARK TO THE UNION STEWARD AT THE
MEETING IN THE PRESENCE OF ANOTHER EMPLOYEE TO SHUT HER MOUTH UNLESS
SPOKEN TO. IN THIS REGARD, HE NOTED THAT SUCH A REMARK TENDED TO
RESTRAIN EMPLOYEES SUCH AS THE STEWARD FROM EXERCISING THEIR RIGHT TO
ACT AS A REPRESENTATIVE OF A LABOR ORGANIZATION AND ALSO TENDED TO
INDICATE TO UNIT EMPLOYEES THAT MANAGEMENT VIEWED THEIR EXCLUSIVE
BARGAINING REPRESENTATIVE WITH DISDAIN AND THEREBY DISCOURAGED THEM FROM
EXERCISING THEIR RIGHTS GRANTED UNDER SECTION 1(A) OF THE ORDER.
U.S. ARMY HEADQUARTERS,
U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY,
FORT JACKSON, SOUTH CAROLINA
AND
LOCAL 1909,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO
ON JULY 28, 1972, HEARING EXAMINER WILLIAM NAIMARK ISSUED HIS REPORT
AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE
RESPONDENT, U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, HAD ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED HEARING EXAMINER'S
REPORT AND RECOMMENDATIONS. THE HEARING EXAMINER FOUND OTHER ALLEGED
CONDUCT OF THE RESPONDENT NOT TO BE VIOLATIVE OF THE ORDER. THEREAFTER,
THE RESPONDENT FILED EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO
THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THIS CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS AND BRIEF, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE HEARING
EXAMINER AS MODIFIED BELOW.
THE COMPLAINT, WHICH WAS FILED ON DECEMBER 9, 1971, ALLEGED THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. THE
ESSENTIAL FACTS OF THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET FORTH IN
DETAIL IN THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND I SHALL
REPEAT THEM ONLY TO THE EXTENT NECESSARY.
THE COMPLAINANT, LOCAL 1909, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, IS THE EXCLUSIVELY RECOGNIZED BARGAINING
REPRESENTATIVE FOR ALL NON-TEMPORARY WAGE GRADE EMPLOYEES AT FORT
JACKSON, SOUTH CAROLINA. ON FEBRUARY 15, 1971, THE PARTIES EXECUTED A
COLLECTIVE-BARGAINING AGREEMENT WHICH BY ITS TERMS WAS EFFECTIVE FROM
JULY 16, 1971 UNTIL JULY 16, 1973. ON SEPTEMBER 2, 1971, THE
RESPONDENT, THROUGH LAUNDRY MANAGER WALLACE DAY, SENT A LETTER TO
LUCILLE GIBSON, AN EMPLOYEE OF THE RESPONDENT IN ITS LAUNDRY FACILITY
WHO HAD BEEN ON SICK LEAVE SINCE AUGUST 4, WHICH REQUESTED A DOCTOR'S
CERTIFICATE BY SEPTEMBER 9 SETTING FORTH GIBSON'S PHYSICAL CONDITION AS
WELL AS THE DATE ON WHICH SHE WAS EXPECTED TO RETURN TO WORK FULLY
CAPABLE OF PERFORMING HER DUTIES. THE LETTER CONCLUDED WITH THE
STATEMENT, "FAILURE TO COMPLY WITH INSTRUCTIONS IN PARAGRAPH 2 MAY BE
THE BASIS FOR DISCIPLINARY OR ADVERSE ACTION." IN FACT, GIBSON RETURNED
TO WORK ON SEPTEMBER 8 WITH A DOCTOR'S CERTIFICATE ATTESTING TO HER
ILLNESS.
AS FOUND BY THE HEARING EXAMINER, THE RECORD REFLECTS THAT GIBSON WAS
DISTURBED AT RECEIVING THE RESPONDENT'S LETTER AND, AS A RESULT, SHOWED
THE LETTER TO EMILY BENNET, WHO SHE CONSIDERED TO BE HER STEWARD. SHE
REQUESTED THAT BENNETT SHOW THE LETTER TO WOODROW PETERSON, THE
COMPLAINANT'S PRESIDENT. THE HEARING EXAMINER FOUND THAT ON SEPTEMBER
23 PETERSON SOUGHT BY TELEPHONE TO ARRANGE A MEETING WITH DAY, GIBSON,
AND HIMSELF TO DISCUSS GIBSON'S CONCERN OVER THE LETTER AND THAT DAY
DENIED PETERSON'S REQUEST.
THE EVIDENCE ESTABLISHED THAT SHORTLY AFTER HIS TELEPHONE
CONVERSATION WITH PETERSON, DAY CALLED A MEETING AT WHICH SEVERAL
MANAGEMENT REPRESENTATIVES WERE PRESENT, INCLUDING MRS. BELL, GIBSON'S
SUPERVISOR. BOTH GIBSON AND BENNETT WERE SUMMONED TO ATTEND. AT THE
COMMENCEMENT OF THE MEETING, BENNETT AND GIBSON REQUESTED THAT PETERSON
BE PRESENT AND THEY WERE TOLD BY DAY HE WOULD NOT BE THERE. THE HEARING
EXAMINER FOUND THAT WHEN BENNETT REMARKED THAT SHE AND GIBSON WOULD NOT
DISCUSS THE MATTER IN THE ABSENCE OF THE COMPLAINANT'S PRESIDENT, DAY
TOLD HER TO SHUT HER MOUTH UNLESS HE SPOKE TO HER. ALTHOUGH DAY ADVISED
GIBSON SHE HAD REPRESENTATION AT THE MEETING AS A STEWARD OF THE
COMPLAINANT WAS IN ATTENDANCE, NEITHER GIBSON NOR BENNETT WOULD DISCUSS
THE MATTER WITH THE MANAGEMENT REPRESENTATIVES OUTSIDE THE PRESENCE OF
THE COMPLAINANT'S PRESIDENT. THEREUPON, DAY DISMISSED GIBSON BUT ASKED
BENNETT TO STAY. DURING THE COURSE OF THEIR SUBSEQUENT CONVERSATION,
BENNETT INFORMED DAY THAT BECAUSE THE COMPLAINANT WAS UNDER TRUSTEESHIP
SHE DOUBTED THAT SHE WAS A STEWARD. DAY REPLIED THAT HE WANTED A
STEWARD HE COULD TALK TO AND THAT IF HE CAUGHT HER DOING STEWARD WORK
UNTIL HE WAS NOTIFIED SHE WAS, IN FACT, AN OFFICIAL STEWARD, HE KNEW THE
"PROCEDURE TO GO THROUGH." /1/
THE HEARING EXAMINER FOUND THAT THE RESPONDENT VIOLATED SECTION
19(A)(6) OF THE ORDER BASED ON LAUNDRY MANAGER DAY'S REFUSAL TO PERMIT
COMPLAINANT PRESIDENT PETERSON'S ATTENDANCE AT THE SEPTEMBER 23 MEETING
CALLED BY DAY FOR THE PURPOSE OF DISCUSSING WITH TWO UNIT EMPLOYEES,
BENNETT AND GIBSON, THE MANAGEMENT LETTER SENT TO GIBSON ON THE SUBJECT
OF EXTENDED SICK LEAVE.
IN THIS REGARD, THE PERTINENT LANGUAGE OF THE EXECUTIVE ORDER, WHICH
I FIND IS APPLICABLE TO THE INSTANT FACTUAL SITUATION, APPEARS IN THE
LAST SENTENCE OF SECTION 10(E) OF THE ORDER. THUS, THE ORDER STATES
THAT:
THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT. IN MY VIEW, THE RIGHT FLOWING TO A LABOR
ORGANIZATION FROM THIS SECTION OF THE ORDER (I.E., "TO BE REPRESENTED AT
FORMAL DISCUSSIONS") IS ONE THAT FLOWS DIRECTLY TO A LABOR ORGANIZATION
WHICH HAS BEEN ACCORDED EXCLUSIVE RECOGNITION. /2/ THE CIRCUMSTANCES IN
THIS CASE PRESENT A CLEAR EXAMPLE OF THE PRACTICAL APPLICATION OF THIS
SECTION 10(E) RIGHT. THUS, IT IS CLEAR THAT THE MEETING ON SEPTEMBER 23
WOULD NOT HAVE TAKEN PLACE BUT FOR PETERSON'S TELEPHONE CALL TO DAY
ALERTING HIM TO THE FACT THAT GIBSON WAS DISTURBED BY THE SICK LEAVE
LETTER SHE HAD RECEIVED. IT IS CLEAR, ALSO, THAT AT THIS POINT IN TIME
DAY WAS OF THE VIEW THAT NO FORMAL GRIEVANCE HAD BEEN FILED IN
ACCORDANCE WITH THE TERMS OF THE PARTIES' COLLECTIVE-BARGAINING
AGREEMENT, AND THAT DAY, AFTER REJECTING PETERSON'S REQUEST FOR A
MEETING WITH DAY, GIBSON, AND PETERSON, HELD A MEETING IN ORDER TO
ATTEMPT TO RESOLVE THE MATTER IN THE ABSENCE OF THE COMPLAINANT'S
PRESIDENT. IN THIS LATTER REGARD, THE EVIDENCE ESTABLISHES THAT SHORTLY
AFTER PETERSON'S CALL, DAY INSTRUCTED GIBSON'S IMMEDIATE SUPERVISOR TO
SUMMON GIBSON AND BENNETT TO HIS OFFICE. WHEN THE TWO EMPLOYEES
ARRIVED, THEY DID NOT KNOW WHY DAY WANTED TO SEE THEM, AND THEY WERE
CONFRONTED WITH NOT ONLY DAY AND THEIR IMMEDIATE SUPERVISOR BUT ALSO
WITH THREE OTHER MANAGEMENT OFFICIALS, ONE OF WHOM, ACCORDING TO
BENNETT, WAS THERE TO TAKE NOTES OF THE MEETING. DAY BEGAN THE MEETING
BY SHOWING GIBSON A COPY OF THE SICK LEAVE LETTER AND OBTAINING HER
AFFIRMATION THAT SHE HAD RECEIVED SUCH A LETTER. HE STATED THAT THE
PURPOSE OF THE MEETING WAS TO DISCUSS GIBSON'S PROBLEMS WITH RESPECT TO
THE LETTER. AS NOTED ABOVE, BOTH BENNETT AND GIBSON STATED THAT THEY
WANTED PETERSON PRESENT BEFORE THE DISCUSSION PROCEEDED FURTHER. THE
EVIDENCE ESTABLISHES THAT DAY DENIED THIS REQUEST AND ADVISED GIBSON
THAT SHE WAS REPRESENTED ADEQUATELY BY BENNETT, WHO HE CONSIDERED TO BE
THE COMPLAINANT'S STEWARD. /3/ GIBSON AND BENNETT ADHERED TO THEIR
POSITION THAT THEY WOULD NOT TALK ABOUT THE LETTER WITHOUT PETERSON
BEING PRESENT.
UNDER THE FOREGOING CIRCUMSTANCES, I FIND THAT THE SEPTEMBER 23
MEETING CONSTITUTED A "FORMAL" DISCUSSION WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER AND THAT SUCH DISCUSSION CLEARLY INVOLVED MATTERS
RELATING TO "PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." THUS, IN
MY VIEW, THE "FORMAL" NATURE OF THE MEETING WAS SHOWN BY DAY'S ATTEMPT
TO RESOLVE THE MATTER IN THE PRESENCE OF AN INDIVIDUAL WHO HE BELIEVED
REPRESENTED THE COMPLAINANT'S INTERESTS, BY DAY'S REQUIRING THE PRESENCE
AT THE MEETING OF FOUR ADDITIONAL MANAGEMENT REPRESENTATIVES INCLUDING
GIBSON'S IMMEDIATE SUPERVISOR, AND BY THE ADHERENT FACT THAT A RECORD OF
THE MEETING WAS TO BE MADE BY ONE OF THE MANAGEMENT REPRESENTATIVES.
FURTHER, AS THE SUBJECT OF THE MEETING RELATED TO PERSONNEL POLICIES AND
PRACTICES IN THE AREA OF EMPLOYEE SICK LEAVE REQUIREMENTS, WHICH HAD
RAMIFICATIONS FOR ALL UNIT EMPLOYEES, I FIND THAT THE SEPTEMBER 23
DISCUSSION CLEARLY FELL WITHIN THE SCOPE OF SECTION 10(E) OF THE ORDER.
UNDER SECTION 10(E) OF THE ORDER THE EXCLUSIVE REPRESENTATIVE MUST BE
GIVEN THE OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PROCEDURES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT, AND AGENCIES AND ACTIVITIES HAVE THE
CORRESPONDING OBLIGATION TO AFFORD THE EXCLUSIVE REPRESENTATIVE SUCH AN
OPPORTUNITY. /4/ IT IS NOT WITHIN THE PURVIEW OF MANAGEMENT TO DECIDE
WHO FULFILLS THAT ASPECT OF SECTION 10(E) WHICH REQUIRES THAT "LABOR
ORGANIZATION(S) SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT
FORMAL DISCUSSIONS" OF THIS NATURE. THE RIGHT TO CHOOSE ITS
REPRESENTATIVE AT SUCH DISCUSSIONS MUST BE LEFT TO THE DISCRETION OF THE
EXCLUSIVE BARGAINING REPRESENTATIVE AND NOT TO THE WHIM OF MANAGEMENT.
IT IS CLEAR THAT BENNETT, WHO WAS REQUESTED BY MANAGEMENT TO ATTEND THE
MEETING IN HER CAPACITY OF STEWARD, WAS NOT FULFILLING THE ROLE OF THE
CHOSEN REPRESENTATIVE OF THE EXCLUSIVELY RECOGNIZED LABOR ORGANIZATION
AS CONTEMPLATED BY SECTION 10(E). THUS, AS NOTED ABOVE, PETERSON, BY
REQUESTING A MEETING WITH DAY AT THE OUTSET, DREW THE LATTER'S ATTENTION
TO THE FACT THAT HE, PETERSON, WAS THE COMPLAINANT'S REPRESENTATIVE FOR
PURPOSES OF ANY MEETING CONCERNING THE SICK LEAVE LETTER. /5/ HOWEVER,
DAY TOOK IT UPON HIMSELF TO HOLD THE ABOVE-NOTED DISCUSSION DENYING
PETERSON KNOWLEDGE OF ITS OCCURRENCE OR ACCESS TO IT. IT IS BASED UPON
THIS ASPECT OF SECTION 10(E) AND DAY'S CONDUCT IN CALLING SUCH A MEETING
WITHOUT GIVING THE COMPLAINANT AN OPPORTUNITY TO BE REPRESENTED BY AN
INDIVIDUAL OF ITS OWN CHOICE AND, THUS, PRECLUDING THE COMPLAINANT'S
CHOSEN REPRESENTATIVE FROM ATTENDANCE, THAT I FIND THE RESPONDENT TO
HAVE REFUSED IMPROPERLY TO CONSULT, CONFER, OR NEGOTIATE WITH ITS
EMPLOYEES' EXCLUSIVE BARGAINING REPRESENTATIVE IN VIOLATION OF THE
EXECUTIVE ORDER. /6/
THE HEARING EXAMINER FURTHER FOUND A VIOLATION OF SECTION 19(A)(1)
BASED ON LAUNDRY MANAGER DAY'S STATEMENT TO BENNETT AT THE SEPTEMBER 23
MEETING TO THE EFFECT THAT BENNETT SHOULD SHUT HER MOUTH UNLESS SPOKEN
TO. UNDER THE CIRCUMSTANCES INVOLVED HEREIN, I AGREE WITH THE HEARING
EXAMINER'S FINDING. IN REACHING THIS RESULT, I NOTE PARTICULARLY THE
HEARING EXAMINER'S CONCLUSION THAT DESPITE THE DOUBT SUBSEQUENTLY RAISED
BY BENNETT REGARDING HER OFFICIAL CAPACITY AS STEWARD, AT THE TIME DAY
MADE SUCH REMARK TO BENNETT "MANAGEMENT AS WELL AS OTHER EMPLOYEES
VIEWED HER AS THE STEWARD AND SHE WAS TREATED AS A UNION REPRESENTATIVE
BY THE EMPLOYEES." MOREOVER, RESPONDENT'S REFUSAL TO PERMIT PETERSON TO
BE PRESENT AT THE DISCUSSION WAS, IN PART, PREDICTED ON ITS ASSERTION
THAT THE COMPLAINANT'S STEWARD'S PRESENCE WAS SUFFICIENT. /7/ SUCH AN
ADMONISHMENT TO THE COMPLAINANT'S STEWARD IN THE PRESENCE OF OTHER
EMPLOYEES REASONABLY MAY BE VIEWED AS REFLECTING A DISPARAGEMENT OF THE
COMPLAINANT AND HAVE A DUAL EFFECT ON UNIT EMPLOYEES. THUS, IN MY VIEW,
SUCH CONDUCT CLEARLY WOULD TEND TO RESTRAIN EMPLOYEES, SUCH AS BENNETT,
FROM EXERCISING THEIR RIGHT TO ACT AS A REPRESENTATIVE OF A LABOR
ORGANIZATION AND PRESENT THEIR VIEWS TO MANAGEMENT. FURTHER, WITH
KNOWLEDGE THAT THEIR STEWARD HAS BEEN ADVISED BY MANAGEMENT NOT TO
EXPRESS HERSELF ON THEIR BEHALF, EMPLOYEES IN THE BARGAINING UNIT
UNDOUBTEDLY WOULD TEND TO BELIEVE THAT MANAGEMENT VIEWS THEIR EXCLUSIVE
REPRESENTATIVE WITH DISDAIN AND THEREBY WOULD BE DISCOURAGED FROM
EXERCISING THEIR RIGHTS GRANTED UNDER SECTION 1(A) OF THE ORDER. IN ALL
THE CIRCUMSTANCES, I FIND THAT DAY'S REMARK TO BENNETT TO SHUT HER MOUTH
UNLESS HE SPOKE TO HER, IN THE PRESENCE OF ANOTHER EMPLOYEE AT THE
SEPTEMBER 23, 1971, MEETING INTERFERED WITH, RESTRAINED, OR COERCED
EMPLOYEES IN THE EXERCISE OF THEIR SECTION 1(A) RIGHTS IN VIOLATION OF
SECTION 19(A)(1) OF THE ORDER.
BY CONDUCTING A FORMAL DISCUSSION ON SEPTEMBER 23, 1971, CONCERNING
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE BARGAINING UNIT WITHOUT AFFORDING
THE COMPLAINANT'S CHOSEN REPRESENTATIVE THE OPPORTUNITY TO ATTEND SUCH
DISCUSSION, THE RESPONDENT IMPROPERLY REFUSED TO CONSULT, CONFER, OR
NEGOTIATE WITH ITS EMPLOYEES' EXCLUSIVE BARGAINING REPRESENTATIVE IN
VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER. BY ADVISING THE
COMPLAINANT'S STEWARD TO SHUT HER MOUTH UNLESS HE SPOKE TO HER, IN THE
PRESENCE OF ANOTHER EMPLOYEE AT THE SEPTEMBER 23 MEETING, THE RESPONDENT
INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES IN VIOLATION OF
SECTION 19(A)(1) OF THE ORDER.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, I SHALL
ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND TAKE SPECIFIC
AFFIRMATIVE ACTION, AS SET FORTH BELOW, DESIGNED TO EFFECTUATE THE
POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE U.S. ARMY
HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY, FORT JACKSON LAUNDRY
FACILITY, FORT JACKSON, SOUTH CAROLINA, SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT WITHOUT GIVING LOCAL 1909, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
THE OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY ITS OWN CHOSEN
REPRESENTATIVE.
(B) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
PREVENTING A STEWARD OF LOCAL 1909, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, OR ANY OTHER INDIVIDUAL ACTING AS A REPRESENTATIVE
OF SAID LABOR ORGANIZATION, FROM SPEAKING ON BEHALF OF ANY EMPLOYEE IN
THE BARGAINING UNIT AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) NOTIFY LOCAL 1909, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, OF AND GIVE IT THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEE IN THE UNIT.
(B) POST AT ITS FACILITY AT UNITED STATES ARMY HEADQUARTERS, UNITED
STATES ARMY TRAINING CENTER, INFANTRY, FORT JACKSON, SOUTH CAROLINA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING
OFFICER, UNITED STATES ARMY HEADQUARTERS, UNITED STATES ARMY TRAINING
CENTER, INFANTRY, FORT JACKSON, SOUTH CAROLINA, AND THEY SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JANUARY 17, 1973
/1/ IN AGREEMENT WITH THE HEARING EXAMINER, I FIND THAT THIS
STATEMENT WAS NOT VIOLATIVE OF THE ORDER.
/2/ THIS RIGHT SHOULD NOT BE CONFUSED WITH THE POSSIBLE RIGHT OF AN
EXCLUSIVE REPRESENTATIVE TO REPRESENT EMPLOYEES VIS-A-VIS MANAGEMENT IN
SIMILAR SITUATIONS.
/3/ AN AMBIGUITY WITH RESPECT TO BENNETT'S STATUS AS A STEWARD AROSE
BECAUSE THE COMPLAINANT APPARENTLY WAS IN TRUSTEESHIP DURING THE PERIOD
OF THESE EVENTS. THE HEARING EXAMINER FOUND THAT THE RESPONDENT AND ALL
PARTIES CONCERNED TREATED BENNETT AS IF SHE WERE THE COMPLAINANT'S
STEWARD AT THE TIME OF THE MEETING.
/4/ IT WAS NOTED THAT ARTICLE VI OF THE PARTIES'
COLLECTIVE-BARGAINING AGREEMENT SETS FORTH THE "RIGHTS OF THE UNION"
WHICH ALMOST MIRRORS THE LANGUAGE OF SECTION 10(E) OF THE ORDER. IN
QUOTING THIS PROVISION AT PAGE 4 OF THE REPORT AND RECOMMENDATIONS, THE
HEARING EXAMINER INADVERTENTLY USED THE TERM "PERSONAL DISCUSSIONS"
RATHER THAN "FORMAL DISCUSSIONS" WHICH IS FOUND IN THE ABOVE-MENTIONED
PROVISION.
/5/ DESPITE THE APPARENT TRUSTEESHIP IN THIS MATTER, THROUGHOUT THE
PROCEEDING PETERSON WAS REFERRED TO AS THE "ACTING PRESIDENT"; THE
RESPONDENT AND ALL PARTIES CONCERNED TREATED PETERSON AT ALL TIMES AS
THOUGH HE WERE BOTH THE COMPLAINANT'S ACTING PRESIDENT AND OFFICIAL
REPRESENTATIVE; AND NO RECORD EVIDENCE WAS SUBMITTED TO SUPPORT A
CONTRARY FINDING AS TO HIS OFFICIAL STATUS.
/6/ IN VIEW OF MY DECISION HEREIN, I FIND IT UNNECESSARY TO PASS UPON
THE HEARING EXAMINER'S FINDING THAT THE DISPUTE HEREIN INVOLVED A
GRIEVANCE OR AN ASPECT OF THE PARTIES' CONTRACTUAL GRIEVANCE PROCEDURE.
FURTHER, I FIND IT UNNECESSARY TO PASS UPON THE HEARING EXAMINER'S
RATIONALE IN ATTEMPTING TO DISTINGUISH THE RIGHT TO UNION REPRESENTATION
IN SITUATIONS WHERE EMPLOYERS INTERROGATE EMPLOYEES MERELY TO
INVESTIGATE THE FACTS OF A PARTICULAR INCIDENT AS OPPOSED TO SITUATIONS
WHERE AN EMPLOYER'S PURPOSE GOES BEYOND THE INVESTIGATION STAGE AND
ENTERS THE AREA OF POTENTIAL DISCIPLINARY ACTION.
/7/ RESPONDENT IN ITS EXCEPTIONS AND BRIEF STATES THAT BENNETT WAS
THE UNION STEWARD AND THAT DAY "RECOGNIZED BENNETT AS A UNION
REPRESENTATIVE AND INVITED HER TO THE MEETING IN THAT CAPACITY."
WE WILL NOT CONDUCT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS CONCERNING EMPLOYEES IN THE UNIT WITHOUT GIVING LOCAL 1909,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO BE REPRESENTED AT SUCH
DISCUSSIONS BY ITS OWN CHOSEN REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
PREVENTING A UNION STEWARD OF LOCAL 1909, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY INDIVIDUAL ACTING AS A
REPRESENTATIVE OF SAID LABOR ORGANIZATION, FROM SPEAKING ON BEHALF OF
ANY EMPLOYEE IN THE BARGAINING UNIT AT FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS.
WE WILL NOT IN ANY LIKE OR RELATED MATTER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
DATED . . . BY . . .
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS ROOM 300, 1371 PEACHTREE
STREET, N.E., ATLANTA, GEORGIA 30309.
UNITED STATES ARMY HEADQUARTERS
UNITED STATES ARMY TRAINING CENTER,
INFANTRY, FORT JACKSON LAUNDRY FACILITY,
FORT JACKSON, SOUTH CAROLINA
AND
LOCAL 1909, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
THE UNDERSIGNED ADMINISTRATIVE LAW JUDGE HAVING ISSUED HIS REPORT AND
RECOMMENDATION (HEREINCALLED THE REPORT) IN THIS CASE ON JULY 28, 1972,
AND
THE SAID REPORT HAVING INCORRECTLY SET FORTH IN THE THIRD PARAGRAPH
OF THE NOTICE TO ALL EMPLOYEES SET FORTH IN THE APPENDIX THE FOLLOWING
LANGUAGE: "WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH,
RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR."
IT IS HEREBY ORDERED THAT THE ABOVE QUOTED LINES IN THE THIRD
PARAGRAPH OF THE NOTICE TO ALL EMPLOYEES SET FORTH IN THE APPENDIX BE
STRICKEN.
DATED AT WASHINGTON, D.C.
SEPTEMBER 19, 1972
UNITED STATES ARMY HEADQUARTERS
UNITED STATES ARMY TRAINING CENTER,
INFANTRY, FORT JACKSON LAUNDRY FACILITY,
FORT JACKSON, SOUTH CAROLINA
AND
LOCAL 1909, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
CAPTAIN CHARLES A. SCARMINACH, U.S. ARMY,
STAFF JUDGE, ADVOCATE OFFICE, HEADQUARTERS,
U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON, SOUTH CAROLINA 29207,
KAUFMAN E. BELL, CIVILIAN PERSONNEL OFFICER,
DEPARTMENT OF THE ARMY, FORT JACKSON,
SOUTH CAROLINA 29207, ON BEHALF OF THE
RESPONDENT.
DOLPH D. SAND, ASSISTANT TO THE STAFF COUNSEL,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, 400 FIRST STREET, N.W.,
WASHINGTON, D.C. 20001, ON BEHALF OF THE
COMPLAINANT.
BEFORE: WILLIAM NAIMARK, HEARING EXAMINER
PURSUANT TO A NOTICE OF HEARING ISSUED ON MARCH 30, 1972, BY THE
REGIONAL ADMINISTRATOR OF LABOR-MANAGEMENT SERVICES ADMINISTRATION,
ATLANTA REGION, A HEARING WAS HELD IN THE ABOVE-ENTITLED MATTER BEFORE
THE UNDER SIGNED ON MAY 3, 1972, AT COLOMBIA, SOUTH CAROLINA. A
COMPLAINT WAS FILED UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER) BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1909,
AFL-CIO, (HEREIN CALLED THE UNION) AGAINST UNITED STATES ARMY
HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY FORT JACKSON
LAUNDRY FACILITY, (HEREIN CALLED THE RESPONDENT). THE COMPLAINT ALLEGED
A VIOLATION BY RESPONDENT OF SECTION 19(A)(1) AND (6) OF THE ORDER BY
ITS (A) THREATENING EMILY BENNETT, EMPLOYEE, IN THE PRESENCE OF OTHER
EMPLOYEES, (B) DENYING UNION REPRESENTATION TO LUCILLE GIBSON, EMPLOYEE,
AT A MEETING CALLED BY MANAGEMENT REGARDING A COMPLAINT FILED BY SAID
EMPLOYEE.
AT THE HEARING BOTH PARTIES WERE REPRESENTED BY COUNSEL WHO WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED
HEREIN. /1/ BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED
BY THE UNDERSIGNED.
FROM THE ENTIRE RECORD IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF HIS TESTIMONY ADDUCED AT
THE HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS, CONCLUSIONS,
AND RECOMMENDATIONS:
1. UNFAIR LABOR PRACTICES
A. INTRODUCTION AND CONTENTIONS
THE PARTIES HEREIN NEGOTIATED A COLLECTIVE BARGAINING AGREEMENT WHICH
WAS EXECUTED ON FEBRUARY 15, 1971, AND WAS EFFECTIVE BY ITS TERMS FROM
JULY 16, 1971 UNTIL JULY 16, 1973. UNDER THIS AGREEMENT THE UNION IS
THE RECOGNIZED BARGAINING AGENT FOR ALL NON-TEMPORARY WAGE GRADE
EMPLOYEES OF FORT JACKSON, SOUTH CAROLINA. THE CONTRACT SETS FORTH A
GRIEVANCE PROCEDURE PROVIDING FOR THE PROCESSING OF EMPLOYEES'
COMPLAINTS.
THE UNION CONTENDS MANAGEMENT VIOLATED THE ORDER WHEN IT REFUSED
EMPLOYEE LUCILLE GIBSON'S REQUEST TO HAVE THE UNION PRESIDENT BE PRESENT
AT A MEETING TO WHICH SHE WAS SUMMONED. THIS MEETING WAS CALLED BY
RESPONDENT TO DISCUSS A LETTER RECEIVED BY THE EMPLOYEE WHICH WAS A
SOURCE OF DISSATISFACTION AND IRRITATION TO HER. IT IS ALSO CONTENDED
THAT A STATEMENT MADE BY MANAGEMENT TO EMILY BENNETT, AN EMPLOYEE,
AMOUNTED TO A THREAT AND CONSTITUTED INTERFERENCE, RESTRAINT AND
COERCION UNDER THE ORDER.
RESPONDENT MAINTAINS THAT INASMUCH AS NO GRIEVANCE WAS INITIATED BY
LUCILLE GIBSON WITH HER IMMEDIATE SUPERVISOR, AS REQUIRED UNDER THE
GRIEVANCE PROCEDURE IN THE CONTRACT, THE EMPLOYEE WAS NOT ENTITLED TO
HAVE A UNION REPRESENTATIVE PRESENT AT THIS MEETING. IT IS FURTHER
URGED THAT MANAGEMENT PROPOSED NO DISCIPLINARY ACTION AGAINST GIBSON,
BUT WAS MERELY FOLLOWING THE CIVIL SERVICE COMMISSION AND ARMY
REGULATIONS WHEN IT SENT THE LETTER TO SAID EMPLOYEES. SINCE THE
MEETING WAS EXPLANATORY IN NATURE, THERE IS NO JUSTIFICATION FOR
REQUIRING UNION REPRESENTATION THEREAT.
B. ISSUES
1. WHETHER THE STATEMENT BY WALLACE DAY, RESPONDENT'S LAUNDRY
MANAGER, TO EMILY BENNETT, DEEMED TO BE ACTING AS UNION STEWARD, TO SHUT
UP UNTIL SPOKEN TO-- ALL IN THE PRESENCE OF OTHER EMPLOYEES AND AT A
MEETING CALLED BY DAY-CONSTITUTED INTERFERENCE, RESTRAINT, OR COERCION
UNDER SECTION 19(A)(1) OF THE ORDER.
2. WHETHER THE FURTHER STATEMENT BY DAY TO BENNETT AT THE SAME
MEETING, AFTER SHE EXPRESSED DOUBT AS TO HER BEING UNION STEWARD, THAT
IF HE CAUGHT HER DOING UNION STEWARD WORK HE'D KNOW WHAT PROCEDURES TO
FOLLOW, CONSTITUTED INTERFERENCE, RESTRAINT, OR COERCION UNDER SECTION
19(A)(1) OF THE ORDER.
3. WHETHER THE REFUSAL BY RESPONDENT TO GRANT THE REQUEST OF
EMPLOYEE LUCILLE GIBSON TO HAVE THE PRESIDENT OF THE UNION PRESENT AT A
MEETING SHE ATTENDED WITH MANAGEMENT CONSTITUTED A VIOLATION OF SECTION
19(A)(1) AND/OR 19(A)(6) OF THE ORDER.
C. APPLICABLE CONTRACT PROVISIONS
ARTICLE V
RIGHTS OF EMPLOYEES
SECTION 3. EACH EMPLOYEE HAS THE RIGHT, REGARDLESS OF WHETHER HE IS
A MEMBER OF A LABOR ORGANIZATION, TO BRING MATTERS OF PERSONAL CONCERN
TO THE ATTENTION OF APPROPRIATE OFFICIALS UNDER APPLICABLE LAW, RULE,
REGULATIONS, OR ESTABLISHED POLICY OF THE DEPARTMENT OF THE ARMY, OR TO
CHOOSE HIS OWN REPRESENTATIVE IN A GRIEVANCE OR APPELLATE ACTION.
ARTICLE VI
RIGHTS OF THE UNION
SECTION 2. THE UNION SHALL BE GIVEN THE OPPORTUNITY, SUBJECT TO
SECURITY REGULATIONS, TO BE REPRESENTED AT PERSONAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVE CONCERNING
GRIEVANCE, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
ARTICLE XV
SICK LEAVE
SECTION 6. PERIODS OF ABSENCE ON SICK LEAVE IN EXCESS OF THREE
CONSECUTIVE WORKDAYS MUST BE SUPPORTED BY A MEDICAL CERTIFICATE TO BE
FILED WITHIN 7 CALENDAR DAYS AFTER RETURN TO DUTY * * * .
ARTICLE XXXIV
GRIEVANCE PROCEDURE
SECTION 3. THIS GRIEVANCE PROCEDURE IS APPLICABLE TO ALL TYPES OF
GRIEVANCES OF EMPLOYEES IN THE UNIT NORMALLY CONSIDERED UNDER THE
DEPARTMENT OF THE ARMY GRIEVANCE PROCEDURES, SUCH AS:
B. EXPRESSIONS OF DISSATISFACTION WITH WORKING CONDITIONS AND/OR
ENVIRONMENTAL AND RELATIONSHIPS WITH SUPERVISORS OR OTHER EMPLOYEES.
E. DISSATISFACTIONS WITH THE RECEIPT OF AN OFFICIAL LETTER OF
REPRIMAND.
SECTION 5. THE FOLLOWING GENERAL STANDARDS AND PRINCIPLES WILL BE
ADHERED TO BY EMPLOYEES, BY THE EMPLOYER AND BY UNION REPRESENTATIVES:
A. GRIEVANCES CAN BE INITIATED ONLY BY EMPLOYEES EITHER SINGLY OR
JOINTLY. GRIEVANCES CANNOT BE INITIATED BY THE UNION.
SECTION 6. IT IS AGREED THAT THE FOLLOWING PROCEDURES SHALL BE USED
IF THE NEGOTIATED GRIEVANCE PROCEDURE IS ELECTED BY THE AGGRIEVED
EMPLOYEE:
STEP 1. A COMPLAINT SHALL FIRST BE TAKEN UP BY THE AGGRIEVED
EMPLOYEE AND HIS REPRESENTATIVE, IF ANY, WITH THE IMMEDIATE SUPERVISOR.
THE SUPERVISOR SHALL DISCUSS THE MATTER PROMPTLY AND REVIEW THE
SITUATION IMPARTIALLY. . . THE SUPERVISOR SHALL MAKE THE NECESSARY
INVESTIGATION AND SHALL GIVE ANSWER ORALLY TO THE AGGRIEVED EMPLOYEE
WITHIN SEVEN CALENDAR DAYS AFTER THE DATE OF THE DISCUSSION.
STEP 2. IF THE COMPLAINT IS NOT RESOLVED AS A RESULT OF THE FIRST
STEP DISCUSSION, THE SUPERVISOR WILL MAKE ARRANGEMENTS WITHIN FIVE
CALENDAR DAYS FOR A DISCUSSION OF THE MATTER BETWEEN THE EMPLOYEE, THE
DESIGNATED REPRESENTATIVE . . . APPROPRIATE SUPERVISOR . . .
D. AN EMPLOYEE HAS THE RIGHT TO REQUEST, AND HAVE IN ATTENDANCE, A
REPRESENTATIVE OF THE UNION WHO MAY ACT FOR AND IN HIS BEHALF DURING ANY
MEETING CONCERNING HIS COMPLAINT OR GRIEVANCE. . .
STEP 3. IF AN ACCEPTABLE SOLUTION IS NOT REACHED DURING THE SECOND
STEP DISCUSSION, THE COMPLAINT SHALL BE REDUCED TO WRITING, SIGNED BY
THE AGGRIEVED EMPLOYEE. . . THE COMPLAINT THEN BECOMES A FORMAL
GRIEVANCE. . .
D. CORRESPONDENCE AND DISCUSSIONS RE LUCILLE GIBSON'S OBLIGATIONS
WHILE ON SICK LEAVE
FOR APPROXIMATELY 12 OR 13 YEARS LUCILLE GIBSON HAS BEEN EMPLOYED BY
RESPONDENT IN ITS LAUNDRY FACILITY. ON AUGUST 4, 1971, /2/ SHE WENT ON
SICK LEAVE. THEREAFTER, THE PERSONNEL CLERK, MRS. PACE, REPORTED TO
WALLACE E. DAY, CHIEF OF THE LAUNDRY BRANCH, THAT THREE EMPLOYEES WERE
OUT SICK FOR NEARLY THIRTY DAYS. SHE SUGGESTED EACH EMPLOYEE BE
REQUESTED IN WRITING TO INFORM MANAGEMENT AS TO THE NATURE OF HIS
ILLNESS AND THE DATE OF HIS EXPECTED RETURN TO WORK. ACCORDINGLY, A
LETTER /3/ DATED SEPTEMBER 2 WAS SENT TO GIBSON AND THE OTHER TWO
EMPLOYEES FROM MANAGER DAY. THIS LETTER IN PARAGRAPH 2 REQUESTED A
DOCTOR'S CERTIFICATE BY SEPTEMBER 9 INDICATING THE EMPLOYEE'S PHYSICAL
CONDITION AS WELL AS A DATE WHEN SAID INDIVIDUAL EXPECTS TO RETURN FULLY
CAPABLE OF PERFORMING HER DUTIES. THE LETTER CONCLUDED WITH THE
FOLLOWING:
"3. YOU HAVE FAILED TO FOLLOW ADMINISTRATIVE REGULATIONS GOVERNING
THE USE OF SICK LEAVE AND THE PROPER NOTIFICATION REGARDING YOUR
INTENTIONS TO RETURN TO DUTY.
"4. FAILURE TO COMPLY WITH INSTRUCTIONS IN PARAGRAPH 2 MAY BE THE
BASIS FOR DISCIPLINARY OR ADVERSE ACTION."
THE BASIS FOR RESPONDENT'S ACTION, INQUIRING AS TO THE STATUS OF AN
EMPLOYEE WHO IS ABSENT ON SICK LEAVE, RESTS ON SEVERAL REGULATIONS
PROMULGATED BY THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT OF THE
ARMY. THUS, SUBCHAPTER 4 (SICK LEAVE) OF FEDERAL PERSONNEL MANUAL
630-11 /4/ DECLARES THAT AN AGENCY HAS THE AUTHORITY AND RESPONSIBILITY
TO DETERMINE THESE FACTS WHEN AN EMPLOYEE IS ILL. UNDER CPR 990-2(C 1)
/5/ ARE SET FORTH RESPONSIBILITIES OF THE EMPLOYEES IN RESPECT TO
FURNISHING EVIDENCE IN SUPPORT OF SICK LEAVE, AS WELL AS THE
RESPONSIBILITY OF ACTIVITY COMMANDERS TO REQUIRE SAME TO BE FURNISHED.
REGULATIONS OF THE ARMY GOVERNING CIVILIAN PERSONNEL DESIGNATED TC REG
690-1 C 26 /6/ PROVIDE UNDER 27-5 THAT, IN CASE OF PROLONGED ILLNESSES,
SUPERVISORS MAY REQUIRE EMPLOYEES TO FURNISH MEDICAL CERTIFICATES
SETTING FORTH THE INFORMATION REQUESTED BY RESPONDENT HEREIN. MOREOVER,
THIS IS INCLUDED IN A BULLETIN /7/ DATED DECEMBER 17, 1970, WHICH WAS
GIVEN TO EMPLOYEES.
GIBSON RETURNED TO WORK ON SEPTEMBER 8 WITH A DOCTOR'S CERTIFICATE
ATTESTING TO HER ILLNESS. SHE TESTIFIED, AND I FIND, THAT SHE WAS AWARE
OF REGULATIONS GOVERNING SICK LEAVE, ESPECIALLY ONE REQUIRING A DOCTOR'S
CERTIFICATE UPON RETURNING TO DUTY. AS A RESULT OF HER MOVING, GIBSON
DID NOT RECEIVE DAY'S LETTER UNTIL SEPTEMBER 16. THE RECORD REFLECTS
SHE WAS DISTURBED AT RECEIVING THE LETTER, PARTICULARLY SINCE OTHERS HAD
BEEN ABSENT LONGER ON SICK LEAVE AND HAD NOT, ACCORDING TO HER
KNOWLEDGE, RECEIVED SUCH A LETTER. GIBSON TESTIFIED SHE DID NOT CONTACT
HER IMMEDIATE SUPERVISOR, REBECCA BELL, SINCE THE LETTER WAS WRITTEN BY
DAY. MOREOVER, SHE FELT THAT DISCUSSING IT WITH DAY WOULD BE FUTILE IN
VIEW OF PAST EXPERIENCE. HOWEVER, GIBSON DID SHOW THE LETTER TO EMILY
BENNETT, A UNION STEWARD, AND TOLD HER TO GIVE IT TO WOODROW PETERSON,
THE UNION PRESIDENT.
THE GIBSON LETTER WAS TURNED OVER TO PETERSON WHO CALLED DAY ON
SEPTEMBER 23. PETERSON TESTIFIED, AND I FIND, THAT HE ATTEMPTED TO
ARRANGE A MEETING AMONG DAY, GIBSON AND HIMSELF BECAUSE GIBSON WAS UPSET
AND CONCERNED AT RECEIVING THE LETTER. PETERSON COMMENTED TO DAY THAT
GIBSON HAD FOLLOWED THE CONTRACT BY CALLING IN WHEN SHE RETURNED TO DUTY
AND BRINGING A DOCTOR'S CERTIFICATE. DAY REPLIED THAT SUCH ACTION WAS
INSUFFICIENT AS A STATEMENT FROM THE DOCTOR WAS REQUIRED BEFORE THE
EMPLOYEE RETURNED TO WORK, STATING THE DATE WHEN SHE WOULD RETURN TO BE
ABLE TO PERFORM HER DUTIES. HE INFORMED THE UNION PRESIDENT THIS WAS AN
OFFICIAL ARMY REGULATION. FURTHER, PETERSON'S UNDENIED TESTIMONY
REFLECTS THAT DAY REMARKED IF GIBSON HAD NOT COMPLIED WITH THE
REGULATIONS, IT FORMED THE BASIS FOR ADVERSE ACTION BY RESPONDENT.
WHEREUPON PETERSON SUGGESTED THE MEETING WOULD HELP TO CLARIFY THE
APPARENT CONFLICT BETWEEN THE CONTRACT AND THE REQUIREMENT SET FORTH IN
THE LETTER. HE DECLARED THAT GIBSON HAD BROUGHT A DOCTOR'S STATEMENT
AFTER THREE DAYS' ABSENCE FOR ILLNESS, AND THUS SHE DID NOT BELIEVE ANY
OTHER ACTION WAS REQUIRED. IN RESPECT TO HIS CONVERSATION WITH
PETERSON, DAY TESTIFIED THAT PETERSON SAID HE "CONSTITUTED THE LETTER AS
A GRIEVANCE, TO INITIATE A GRIEVANCE, AND HE WANTED ME TO SET UP A
MEETING WITH MRS. GIBSON, MRS. BENNETT AND HIMSELF TO DISCUSS THE
LETTER." RESPONDENT'S OFFICIAL ALSO TOLD PETERSON HE COULD NOT INITIATE
A GRIEVANCE-- THAT IF HE HAD ANY QUESTIONS AS TO THE REGULATORY
REQUIREMENTS, HE SHOULD DISCUSS IT WITH CIVILIAN PERSONNEL. THE RECORD
REVEALS DAY REFUSED TO MEET WITH BOTH PETERSON AND GIBSON, AND THE
MEETING REQUESTED BY THE UNION PRESIDENT WAS DENIED.
E. MANAGEMENT'S MEETING ON SEPTEMBER 23 WITH LUCILLE GIBSON AND
OTHERS
AFTER REFUSING TO MEET WITH PETERSON AND GIBSON, THE LAUNDRY MANAGER
CALLED A MEETING THAT SAME DAY TO EXPLAIN THE LETTER TO GIBSON AND
ANSWER HER QUESTIONS. SEVERAL MANAGEMENT REPRESENTATIVES WERE PRESENT,
INCLUDING MRS. BELL, AND EMPLOYEES GIBSON AND BENNETT WHO WERE SUMMONED
THERETO. DAY INITIATED THE MEETING BY SHOWING GIBSON A COPY OF A LETTER
AND THEN ASKED HER IF SHE RECEIVED ONE LIKE IT. BENNETT ASKED FOR
PETERSON AND WAS TOLD HE WOULD NOT BE THERE. WHEN BENNET REMARKED THEY
WOULD NOT DISCUSS THE MATTER WITHOUT THE UNION PRESIDENT, DAY TOLD HER
TO SHUT HER MOUTH UNLESS HE SPOKE TO HER. THIS REMARK IS UNDENIED BY
DAY, ALTHOUGH BELL ADMITS THE MANAGER ADMONISHED HER TO "HUSH" WHEN SHE
INTERVENED. IN VIEW THEREOF, AND SINCE GIBSON AND BENNETT CONFIRM EACH
OTHER'S TESTIMONY IN THIS RESPECT, I FIND THAT DAY DID TELL BENNET TO
SHUT HER MOUTH AS HEREINABOVE STATED. FURTHER, BOTH BENNETT AND GIBSON
TESTIFIED THAT THE LATTER ASKED TO HAVE PETERSON PRESENT. ALTHOUGH DAY
DENIES THAT SHE MADE THIS REQUEST, RESPONDENT'S OWN WITNESS, BELL,
CORROBORATES THE UNION WITNESSES. ACCORDINGLY, I FIND THAT GIBSON DID
SPECIFICALLY REQUEST TO HAVE PETERSON PRESENT AT THIS MEETING. THE
RECORD FURTHER REVEALS THAT DAY ADVISED GIBSON SHE WAS REPRESENTED SINCE
THE UNION STEWARD WAS THERE. DAY THEN DISMISSED GIBSON, BUT ASKED
BENNETT TO STAY. HE INQUIRED OF ALL MANAGEMENT OFFICIAL WHETHER THEY
KNEW ANYTHING OF THE LETTER, BUT EACH REPLIED NEGATIVELY." DAY ASKED
BENNETT IF SHE WERE THE OFFICIAL STEWARD, AND SHE SAID "NOT UNTIL MR.
PETERSON TELLS ME I AM." BENNETT INFORMED DAY THAT SINCE THE UNION WAS
UNDER A TRUSTEESHIP SHE HAD DOUBTS THAT SHE WAS A FULL STEWARD. THE
MANAGER REPLIED THAT HE WANTED A STEWARD HE COULD TALK TO, AND IF HE
CAUGHT HER DOING STEWARD WORK UNTIL HE IS NOTIFIED SHE IS AN OFFICIAL
STEWARD, HE KNEW THE "PROCEDURE TO GO THROUGH." DAY'S TESTIMONY
INDICATES HE DID NOT BELIEVE ANY UNION REPRESENTATIVE WAS ENTITLED TO BE
PRESENT, AND HE INVITED BENNETT MERELY AS A COURTESY GESTURE.
1. DAY'S STATEMENTS TO BENNETT AS INTERFERENCE, RESTRAINT OR
COERCION
UNDER SECTION 19(A)(1) OF THE ORDER AGENCY MANAGEMENT IS PROHIBITED
FROM INTERFERING WITH, RESTRAINING, OR COERCING AN EMPLOYEE IN THE
EXERCISE OF RIGHTS GUARANTEED BY THE ORDER ITSELF. A VIOLATION THEREOF
WILL CONSTITUTE AN UNFAIR LABOR PRACTICE. THE RIGHTS WHICH ARE ASSURED
TO EMPLOYEES UNDER THE ORDER ARE SET FORTH AS A "POLICY" UNDER SECTION 1
THEREOF. AS RECITED IN SUCH SECTION, EMPLOYEES ARE GRANTED THE RIGHT TO
FORM, JOIN, AND ASSIST A LABOR ORGANIZATION. FURTHER, THE RIGHT TO
ASSIST A UNION EXTENDS TO PARTICIPATION IN THE MANAGEMENT THEREOF, ACT
AS ITS ORGANIZATION REPRESENTATIVE AND PRESENT ITS VIEWS TO APPROPRIATE
AUTHORITY.
THE UNION CONTENDS RESPONDENT VIOLATED SECTION 19(A)(1) OF THE ORDER
BY DAY'S REMARKS TO BENNETT AT THE MEETING ON SEPTEMBER 23. IT URGES
THAT RESPONDENT COERCED AND RESTRAINED ITS EMPLOYEES BY (1) DAY'S
TELLING BENNETT TO SHUT HER MOUTH UNLESS HE SPOKE TO HER, THIS STATEMENT
BEING MADE AFTER BENNETT SAID THEY WOULD NOT DISCUSS THE LETTER WITHOUT
THE UNION PRESIDENT BEING THERE, (2) DAY'S STATING TO BENNETT IF HE
CAUGHT HER DOING STEWARD WORK UNTIL NOTIFIED SHE WAS AN OFFICIAL
STEWARD, HE KNEW THE PROCEDURE TO FOLLOW.
IN RESPECT TO THE FIRST REMARK, I AM CONSTRAINED TO AGREE THAT
TELLING BENNETT TO SHUT HER MOUTH, UNDER THE PARTICULAR CIRCUMSTANCES
HEREIN, WAS RESTRAINING AND COERCIVE UNDER THE ORDER. DESPITE THE FACT
THAT THERE IS DOUBT WHETHER BENNETT ACTED IN THE OFFICIAL CAPACITY OF
UNION STEWARD, MANAGEMENT AS WELL AS OTHER EMPLOYEES VIEWED HER AS THE
STEWARD AND SHE WAS TREATED AS A UNION REPRESENTATIVE BY THE EMPLOYEES.
RESPONDENT'S REFUSAL TO PERMIT PETERSON TO BE PRESENT WAS, IN PART,
PREDICATED ON ITS ASSERTION THAT THE UNION'S STEWARD'S (BENNETT'S)
PRESENCE WAS SUFFICIENT. MOREOVER, BENNETT CONTINUED TO ACT AS THE DE
FACTO STEWARD. ACCORDINGLY, THIS ADMONISHMENT BY DAY TO SHUT HER MOUTH
UNLESS SPOKEN TO CONTRAVENES THE VERY CRUX OF THE ORDER WHICH GRANTS TO
EMPLOYEES THE RIGHT TO ACT AS REPRESENTATIVES OF A UNION AND PRESENT
VIEWS TO MANAGEMENT. STIFLING BENNETT WHEN SHE SPOKE ON BEHALF OF
GIBSON CONSTITUTES, IN MY OPINION, DIRECT INTERFERENCE WITH SUCH RIGHTS.
RESPONDENT HAS DECLARED, IN THE PRESENCE OF OTHER EMPLOYEES AS WELL,
THAT EFFORTS BY A UNION STEWARD TO DISCUSS CONDITIONS OF EMPLOYMENT ARE
A FUTILITY. /8/ IT IS TANTAMOUNT TO A DISREGARD OF THE UNION AS A
REPRESENTATIVE OF THE EMPLOYEES, AND INDICATES TO THE LATTER THAT
MANAGEMENT CAN IGNORE ITS OBLIGATIONS UNDER THE ORDER. SUCH CONDUCT
REFLECTS A DISPARAGEMENT OF THE UNION, AT LEAST, AND CAN SCARCELY BE
COMPATIBLE WITH THE RIGHTS EXTENDED TO EMPLOYEES HEREIN. MOREOVER, THIS
"SHUT UP" STATEMENT BY DAY MUST NECESSARILY HAVE A RESTRAINING INFLUENCE
UPON EMPLOYEES. IF THEIR REPRESENTATIVE, AS AN EMPLOYEE, IS FORBIDDEN
TO EXPRESS HERSELF IN THIS PARTICULAR MANNER, OTHERS WILL UNDOUBTEDLY
FEEL RESTRAINED IN EXERCISING RIGHTS GUARANTEED BY THE ORDER. IN THE
PARTICULAR FRAME OF REFERENCE HEREIN, DAY'S TELLING BENNETT TO SHUT UP
UNTIL SPOKEN TO HAS A COERCIVE EFFECT UPON RESPONDENT'S EMPLOYEES.
THE UNION MAINTAINS THAT RESPONDENT ENGAGED IN A THREAT WHEN DAY TOLD
BENNET HE KNEW WHAT PROCEDURE TO FOLLOW IF HE CAUGHT HER DOING STEWARD
WORK. HOWEVER, THE UNDERSIGNED DOES NOT AGREE THAT, IN THE POSTURE OF
THIS DISCUSSION, IT CONSTITUTED A COERCIVE THREAT UNDER THE ORDER. AT
THIS PARTICULAR POINT IN THE MEETING DAY INQUIRED OF BENNETT WHETHER SHE
WAS THE OFFICIAL STEWARD. SINCE SHE REPLIED NEGATIVELY, DAY COULD WELL
BE CONCERNED THAT SHE NOT PERFORM STEWARD FUNCTIONS IN THE FUTURE.
WHILE HIS STATED RESTRICTIONS ON PERFORMING ANY STEWARD'S WORK MAY HAVE
BEEN TOO BROAD, I AM PERSUADED DAY WAS ATTEMPTING TO CONFINE STEWARD'S
WORK TO THE OFFICIAL STEWARD. HIS COMMENT AS TO KNOWING THE PROCEDURE
TO PURSUE IF SHE DID ACT AS STEWARD COULD WELL BE REFERABLE TO
LEGITIMATE STEPS THAT COULD BE TAKEN BY RESPONDENT. I CONCLUDE IT WAS
NOT A THREAT TO INTERFERE WITH THE PERFORMANCE OF A UNION STEWARD'S
DUTIES, AND, FURTHER, THAT SUCH REMARK BY DAY DID NOT CONSTITUTE
RESTRAINT OR COERCION UNDER THE ORDER.
2. RESPONDENTS' REFUSAL TO PERMIT THE UNION PRESIDENT TO BE PRESENT
AT MEETING WITH GIBSON AS REFUSAL TO CONSULT, CONFER OR NEGOTIATE
THE ORDER CONTEMPLATES THAT, IN CERTAIN DISCUSSIONS BETWEEN EMPLOYEES
AND MANAGEMENT, A UNION WOULD HAVE THE RIGHT AS WELL AS THE OBLIGATION
TO BE PRESENT. THUS, UNDER SECTION 10, DEALING WITH "EXCLUSIVE
RECOGNITION, IT IS PROVIDED IN SUBSECTION (E) THAT A LABOR ORGANIZATION
IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL EMPLOYEES IN THE
UNIT. IT FURTHER PROVIDES AS FOLLOWS:
"THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL DISCUSSION BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT."
WHILE RESPONDENT URGES THAT NO GRIEVANCE WAS INITIATED, AS REQUIRED
BY THE CONTRACT, SECTION 10(E) OF THE ORDER DOES NOT LIMIT THE RIGHT OF
A UNION TO BE PRESENT AT GRIEVANCE MEETINGS. THIS PARTICULAR LANGUAGE
OF THE ORDER IS BROADER IN SCOPE, AND, IN THE OPINION OF THE
UNDERSIGNED, WOULD ENTITLE THE UNION TO APPEAR AT ALL DISCUSSIONS WITH
EMPLOYEES INVOLVING WORKING CONDITIONS. UNLESS IT BE FOUND THAT THE
UNION HEREIN WAS, IN FACT, REPRESENTED ON SEPTEMBER 23 BY THE APPEARANCE
OF BENNETT, I WOULD CONCLUDE THAT IT WAS NOT AFFORDED THE OPPORTUNITY TO
BE PRESENT AS REQUIRED BY SECTION 10(E) OF THE ORDER. THE DIFFICULTY
WITH FINDING SUCH UNION REPRESENTATION, HOWEVER, IS EVIDENCED BY THE
FACT THAT THERE WAS SOME CONFUSION AS TO WHETHER SHE WAS STILL ACTING AS
THE STEWARD - IN LIGHT OF THE UNION'S BEING UNDER TRUSTEESHIP - AND
BENNETT WAS NOT PERMITTED TO FUNCTION AS A UNION REPRESENTATIVE, IN ANY
EVENT, AT THE MEETING. DAY REFUSED TO ALLOW HER TO INTERCEDE, AND, IN
TRUTH, SILENCED HER EFFORTS TO DO SO. APART FROM THE QUESTION AS TO
WHETHER GIBSON HAD THE RIGHT TO SELECT A PARTICULAR UNION REPRESENTATIVE
ON SEPTEMBER 23, I FIND THAT THERE WAS INDEED NO UNION REPRESENTATION AT
THE MEETING ON THE DATE. FURTHER, IN VIEW OF BENNETT'S UNCERTAIN
STATUS, AS WELL AS THE CONDUCT DISPLAYED BY DAY, I CONCLUDE THAT THE
REQUEST BY GIBSON TO HAVE THE UNION PRESIDENT ATTEND WAS MOST
REASONABLE. ACCORDINGLY, I AM CONVINCED THAT THE UNION HEREIN WAS
CERTAINLY NOT AFFORDED THE OPPORTUNITY TO BE REPRESENTED AT THE
SEPTEMBER 23 MEETING.
IN DETERMINING WHETHER THE REFUSAL BY RESPONDENT TO PERMIT A UNION
REPRESENTATIVE AT THE UNION MEETING WAS AN UNFAIR LABOR PRACTICE, RESORT
IS HAD TO THE PRIVATE SECTOR'S CASES WHICH FREQUENTLY DEALT WITH THIS
ISSUE. THE NATIONAL LABOR RELATIONS BOARD, IN CONSIDERING THIS
QUESTION, HAS ADOPTED A GENERAL RULE WHICH SANCTIONS A REFUSAL TO PERMIT
UNION REPRESENTATION WHEN AN EMPLOYER CALLS IN AN EMPLOYEE TO MERELY
INVESTIGATE THE FACTS OF A PARTICULAR INCIDENT. WHERE POTENTIAL
DISCIPLINE OF THE EMPLOYEE IS REMOTE, OR NO DECISION IS MADE BY
MANAGEMENT TO ADVERSELY AFFECT HIM, THE EMPLOYEE IS NOT ENTITLED TO HAVE
A REPRESENTATIVE PRESENT. JACOBE-PEARSON FORD, INC., 172 NLRB NO. 84;
CHEVRON OIL CO., 168 NLRB 574. THIS RULE IS LIKEWISE ADOPTED WHEN AN
EMPLOYER INTERROGATES AN EMPLOYEE TO GATHER INFORMATION WHICH WILL BE
SUBMITTED TO SUPERVISORY OFFICIALS WHO DO HAVE THE AUTHORITY TO
DISCIPLINE AN EMPLOYEE. IN SUCH AN INSTANCE, NO OBLIGATION IS IMPOSED
UPON AN EMPLOYER TO ACCORD UNION REPRESENTATION AT SUCH INTERROGATION.
ILLINOIS BELL TELEPHONE CO., 192 NLRB NO. 138. NOTE IS TAKEN, HOWEVER,
THAT IN THE CITED CASES THE EMPLOYER IS CONCERNED WITH ASCERTAINING THE
FACTS OR EVENTS WHICH OCCURRED AND GAVE RISE TO DERELECTIONS ON THE PART
OF AN EMPLOYEE. THESE SITUATIONS INVOLVE A CONFRONTATION ABSENT ANY
LIKELY DISCIPLINARY ACTION, AND ARE USUALLY AN INCIPIENT INVESTIGATION
INTO THE MATTER. IN TEXACO, INC., 199 NLRB 976 AN EMPLOYEE REFUSED TO
DRIVE CERTAIN EQUIPMENT AND THE EMPLOYER CALLED A MEETING TO INQUIRE AS
TO THE EMPLOYEE'S VERSION OF THE INCIDENT. IN CONCLUDING NO VIOLATION
EXISTED FOR REFUSING TO ALLOW THE EMPLOYEE UNION REPRESENTATION AT THE
MEETING, THE BOARD EMPHASIZED THE FACT THAT THE EMPLOYEE DID NOT
ANTICIPATE, OR HAVE REASON TO EXPECT, ANY POSSIBLE DISCIPLINE WHEN
CALLED TO THE MEETING.
BOARD CASES SUPPORTING A VIOLATION TURN ON FACTS DEMONSTRATING THAT
AN EMPLOYEE'S DISCUSSION WITH AN EMPLOYER GOES BEYOND AN INVESTIGATION.
THUS IN TEXACO, INC., HOUSTON PRODUCING DIVISION, 168 NLRB 360 THE
EMPLOYEE WAS ACCUSED OF THEFT, AND HE REQUESTED THE UNION BE ALLOWED TO
ATTEND THE MEETING TO WHICH HE WAS SUMMONED. REFUSAL BY THE EMPLOYER
WAS FOUND TO BE A REFUSAL TO BARGAIN, THE BOARD CONCLUDING THE MEETING
WAS NOT CALLED JUST TO PROVIDE THE COMPANY WITH INFORMATION. WHILE THE
EMPLOYER SOUGHT TO DEAL WITH THE WORKER AS TO TERMS AND CONDITIONS OF
EMPLOYMENT, THE EMPLOYEES HAD SELECTED THE UNION TO DEAL WITH THE
EMPLOYER AS TO SUCH MATTERS. IT WAS ALSO EMPHASIZED THAT, DESPITE THE
CONTRACT AND ITS GRIEVANCE PROCEDURE NEITHER THE UNION NOR THE EMPLOYEE
AGREED TO CHANNEL DISPUTES CONCERNING THE RIGHT OF REPRESENTATIVES INTO
GRIEVANCE PROCEDURES. THE BOARD'S LANGUAGE, IN PART, STATES:
"ALSO, IN VIEW OF ALANIZ'S (EMPLOYEE) REQUEST FOR UNION
REPRESENTATION AT THE MEETING, AND THE UNION'S EVIDENT WILLINGNESS TO
REPRESENT HIM - BOTH CONVEYED TO MANAGEMENT - WE FIND THAT RESPONDENT'S
REFUSAL TO DEAL WITH THE UNION ON THAT OCCASION TRANSGRESSED ITS
STATUTORY OBLIGATION TO BARGAIN WITH THE UNION CONCERNING THE TERMS AND
CONDITIONS OF EMPLOYMENT OF THE EMPLOYEES IT REPRESENTS."
FURTHER, WHERE AN EMPLOYER HAD REASONABLE GROUNDS FOR BELIEVING
DISCIPLINARY ACTION MIGHT RESULT FROM AN EMPLOYER'S INVESTIGATION, IT
WAS HELD THAT HIS REQUEST FOR UNION REPRESENTATION WAS JUSTIFIABLE. SEE
QUALITY MANUFACTURING CO., 195 NLRB NO. 42; MOBIL OIL CORP., 196 NLRB
NO. 144. IN THE LATTER CASE THE BOARD SAID THE FOLLOWING:
"IN THE INSTANT CASE, BURNETT AND SMITH HAD REASONABLE GROUNDS TO
FEAR THAT THEY WERE SUSPECTED OF THEFT OF COMPANY PROPERTY AND THEREFORE
THAT THE INTERVIEWS COULD ADVERSELY AFFECT THEIR EMPLOYMENT STATUS. . .
THE REQUESTS OF BURNETT AND SMITH FOR UNION REPRESENTATION WERE
CONSISTENT WITH SECTION 7 OF THE ACT WHICH GUARANTEES EMPLOYEES THE
RIGHT TO ENGAGE IN CONCERTED ACTIVITIES FOR THEIR MUTUAL AID AND
PROTECTION. BY DENYING THE REQUESTS, THE RESPONDENT INTERFERED WITH,
RESTRAINED AND COERCED SMITH AND BURNETT IN THE EXERCISE OF THEIR
SECTION 7 RIGHTS, HEREBY VIOLATING SECTION 8(A)(1) OF THE ACT.
APPLICATION OF THE PRIVATE SECTOR LAW TO THE INSTANT CASE WOULD
COMPEL THE UNDERSIGNED TO FIND THAT RESPONDENT EVADED ITS OBLIGATION TO
CONSULT, CONFER OR NEGOTIATE WITH THE UNION, AND INTERFERED WITH,
RESTRAINED AND COERCED ITS EMPLOYEES IN THE EXERCISE OF RIGHTS
GUARANTEED THEM UNDER THE ORDER-- ALL IN VIOLATION OF SECTION 19(A)(1)
AND (6) THEREOF. LAUNDRY CHIEF DAY DID NOT SUMMON GIBSON ON SEPTEMBER
23 TO CONDUCT AN INVESTIGATION REGARDING HER FAILURE TO COMPLY WITH THE
REQUIREMENTS IN THE SEPTEMBER 2 LETTERS. ALTHOUGH DAY MAY HAVE INTENDED
TO MERELY EXPLAIN THE LETTER, GIBSON COULD WELL HAVE SURMISED THAT SOME
ADVERSE ACTION AGAINST HER WAS IMMINENT. IN TRUTH, RESPONDENT SET THE
STAGE FOR GIBSON TO ANTICIPATE SOME REPRIMAND OR DISCIPLINE WHEN IT
RECITED IN THE SAID LETTER THAT FAILURE TO COMPLY WITH THE INSTRUCTIONS
MAY BE THE BASIS FOR DISCIPLINARY OR ADVERSE ACTION. MOREOVER, DAY
INFORMED PETERSON PRIOR TO THE MEETING THAT IF GIBSON HAD NOT COMPLIED
WITH THE REGULATIONS A BASIS EXISTED FOR SOME ADVERSE ACTION BY
RESPONDENT. CONSEQUENTLY, I AM PERSUADED THAT THE MEETING ON SEPTEMBER
23 WAS BEYOND A FACT-FINDING GATHERING, AND THE PREVIOUS ORAL AND
WRITTEN STATEMENT BY RESPONDENT WOULD TEND TO LEAD GIBSON TO CONCLUDE
THAT SHE FACED SOME ADVERSE ACTION BY THE ACTIVITY. IN THIS POSTURE,
HER REQUEST THAT THE UNION PRESIDENT BE PRESENT WAS REASONABLE, AND
DAY'S REFUSAL CONSTITUTED AN EVASION OF ITS OBLIGATIONS UNDER THE ORDER.
APART FROM THE BOARD CASES, I AM CONVINCED THAT THE ORDER'S INTENDMENT
IS TO ASSURE UNIONS THE OPPORTUNITY TO REPRESENT EMPLOYEES AT ALL FORMAL
DISCUSSIONS WITH EMPLOYEES REGARDING WORKING CONDITIONS. AS HERETOFORE
INDICATED, THIS IS SPECIFICALLY PROVIDED FOR IN THE ORDER ITSELF, AND
SHOULD BE GIVEN CONSIDERABLE WEIGHT IN DETERMINING THE ISSUE HEREIN.
THE BROADNESS OF SECTION 10(E) WHEN VIEWED IN CONJUNCTION WITH THE
POLICY SET FORTH IN SECTION 1 OF THE ORDER, AS WELL AS ARTICLE VI,
SECTION 2 OF THE CONTRACT WHICH IS ALMOST IDENTICAL TO THE LANGUAGE IN
SECTION 10(E), IMPELS ME TO CONCLUDE THE UNION HAS THE RIGHT TO
REPRESENT EMPLOYEES AT MEETINGS TO WHICH EMPLOYEES AS GIBSON ARE CALLED
BY THE EMPLOYER. ACCORDINGLY, A DENIAL OF A REQUEST BY THE EMPLOYEE FOR
UNION REPRESENTATION IN SUCH RUNS AFOUL OF THE ORDER. IT NOT ONLY
INTERFERES WITH RIGHTS OF EMPLOYEES GUARANTEED BY THE ORDER BUT
DISREGARDS THE "BARGAINING" OBLIGATIONS THEREUNDER.
RESPONDENT RAISES A SPECIFIC DEFENSE TO THIS PROCEEDING BASED ON
ARTICLE XXXIV, SECTIONS 5 AND 6 OF THE CONTRACT, WHICH DEAL WITH
GRIEVANCE PROCEDURE. SECTION 5 PROVIDES THAT ONLY EMPLOYEES - AND NOT
THE UNION-- MAY INITIATE A GRIEVANCE. SECTION 6 RECITES THAT, UNDER
STEP 1, A COMPLAINT SHALL BE TAKEN UP BY THE AGGRIEVED EMPLOYEE AND HIS
REPRESENTATIVE, IF ANY, WITH THE IMMEDIATE SUPERVISOR. THEREFORE, THE
ACTIVITY ARGUES, GIBSON HAS NO STANDING HEREIN BECAUSE SHE DID NOT
INITIATE THE GRIEVANCE - SHE FAILED TO TAKE THE MATTER UP WITH HER
IMMEDIATE SUPERVISOR, MRS. BELL. THE RESPONDENT THUS CONTENDS NO
GRIEVANCE EXISTED.
THE UNDERSIGNED WOULD REJECT THIS DEFENSE. FIRSTLY, THE BROAD GRANT
OF RIGHT TO UNION REPRESENTATION UNDER THE ORDER WOULD REQUIRE EXPLICIT
LANGUAGE IN THE CONTRACT IF THE PARTIES INTENDED TO CHANNEL DISPUTES AS
TO SUCH RIGHTS INTO THE GRIEVANCE PROCEDURES. ASSUMING ARGUENDO, THAT
GIBSON HAD NOT INITIATED A GRIEVANCE, HER RIGHT TO UNION REPRESENTATION
AT A MEETING TO WHICH SHE IS CALLED IS NOT EXTINGUISHED. IF MANAGEMENT
SEEKS TO CONFRONT AN EMPLOYEE UNDER A CLOUD OF POSSIBLE DISCIPLINARY
ACTION, HER NEED FOR A UNION REPRESENTATIVE IS, AT THE MOMENT, MOST
VITAL. CONDUCT OCCURRING A DISCUSSIONS BETWEEN EMPLOYER AND EMPLOYEE,
DESPITE THE ABSENCE OF INITIATING A GRIEVANCE, MAY LIKEWISE REQUIRE
REPRESENTATION ON THE EMPLOYEE'S BEHALF.
SECONDLY, I AM PERSUADED THAT A GRIEVANCE WAS IN FACT INITIATED BY
GIBSON IN RESPECT TO HER DISSATISFACTION WITH THE RECEIPT OF SAID
LETTER. AT THE SEPTEMBER 23 MEETING DAY WAS AWARE THAT PETERSON HAD, IN
HER WORDS, "CONSTITUTED THE LETTER AS A GRIEVANCE, TO INITIATE A
GRIEVANCE, (SIC)." DAY ALSO KNEW PETERSON INITIATED THE COMPLAINT ON
GIBSON'S BEHALF. ALTHOUGH GIBSON DID NOT DISCUSS THE MATTER WITH MRS.
BELL INITIALLY, DAY SUMMONED GIBSON, BELL, AND OTHERS TO THE MEETING
SINCE HE KNEW GIBSON FELT AGGRIEVED. SUCH CONDUCT, IN MY OPINION, IS
EQUIVALENT TO A WAIVER OF THIS REQUIREMENT SET FORTH IN THE CONTRACT.
DAY'S WILLINGNESS TO MEET REGARDING THE LETTER, AFTER PETERSON HAD
CALLED HIM TO COMPLAIN ABOUT IT, TAKES THE MATTER BEYOND STEP 1. IT ILL
BEHOOVES RESPONDENT TO CALL A FORMAL MEETING IN RESPECT TO THE
SITUATION, AND LATER CONTEND THE EMPLOYEE FAILED TO DISCUSS THE MATTER
WITH HER IMMEDIATE SUPERVISOR. THE PARTIES WERE , IN REALITY, AND STEP
2, AND AT THAT STAGE THE CONTRACT RECITES THAT AN EMPLOYEE HAS THE RIGHT
TO REQUEST, AND HAVE IN ATTENDANCE, A UNION REPRESENTATIVE TO ACT ON HIS
BEHALF. ACCORDINGLY, PURSUANT TO THE GRIEVANCE PROCEDURE IN THE
AGREEMENT, I FIND THAT GIBSON WAS ENTITLED TO HAVE PETERSON REPRESENT
HER AT THE MEETING ON SEPTEMBER 23 REGARDING HER COMPLAINT.
IN SUM, I FIND AND CONCLUDE THAT RESPONDENT VIOLATED SECTION 19(A)(1)
OF THE ORDER BY REASON OF DAY'S TELLING BENNETT TO SHUT UP UNTIL SPOKEN
TO AT THE MEETING ON SEPTEMBER 23, 1971. DENYING THE ACTING UNION
STEWARD THE RIGHT TO SPEAK ON BEHALF OF GIBSON IN THE PRESENCE OF OTHER
EMPLOYEES CONSTITUTED INTERFERENCE, RESTRAINT OR COERCION UNDER THE
ORDER. MOREOVER, I CONCLUDE THAT THE REFUSAL BY DAY TO PERMIT UNION
PRESIDENT PETERSON TO BE PRESENT AT THE SEPTEMBER 23 MEETING, UPON THE
REQUEST OF THE AGGRIEVED EMPLOYEE GIBSON, WAS A VIOLATION OF
RESPONDENT'S OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE-- ALL OF WHICH
VIOLATED SECTION 19(A)(6) OF THE ORDER.
IN RESPECT TO THE STATEMENT MADE BY DAY TO BENNETT THAT IF HE CAUGHT
HER DOING UNION STEWARD WORK HE KNEW WHAT PROCEDURE TO FOLLOW, I FIND
AND CONCLUDE THIS WAS NOT VIOLATIVE OF THE ORDER.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT WHICH IS
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
PURPOSE OF EXECUTIVE.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT UNITED STATES ARMY
HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY, FORT JACKSON
LAUNDRY FACILITY, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, OR PREVENTING, ANY UNION STEWARD OF AMERICA
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1909, AFL-CIO, OR ANY
INDIVIDUAL ACTING AS A REPRESENTATIVE OF SAID LABOR ORGANIZATION, FROM
SPEAKING ON BEHALF OF ANY EMPLOYEE AT ANY MEETING OR FORMAL DISCUSSION
BETWEEN MANAGEMENT AND SUCH EMPLOYEE CONCERNING A GRIEVANCE, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT.
(B) REFUSING THE REQUEST MADE BY LUCILLE GIBSON TO BE REPRESENTED BY
THE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1909, AFL-CIO, AT ANY MEETING OF FORMAL DISCUSSION BETWEEN MANAGEMENT
AND LUCILLE GIBSON CONVENED TO DISCUSS THE CONTENTS OF THE LETTER DATED
SEPTEMBER 2, 1971 SENT FROM WALLACE E DAY, RESPONDENT'S LAUNDRY MANAGER,
TO LUCILLE GIBSON.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) UPON REQUEST, CONSULT, CONFER, OR NEGOTIATE IN GOOD FAITH WITH
THE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1909, AFL-CIO, OR ANY DULY AUTHORIZED REPRESENTATIVE THEREOF, IF
REQUESTED BY ANY EMPLOYEE WHO IS A MEMBER OF THE UNIT OF WHICH THE SAID
LABOR ORGANIZATION IS THE BARGAINING REPRESENTATIVE, AT ANY MEETING OR
FORMAL DISCUSSION BETWEEN MANAGEMENT AND ANY OF ITS EMPLOYEES CONCERNING
A GRIEVANCE, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
(B) POST AT ITS FACILITIES AT UNITED STATES ARMY TRAINING CENTER,
INFANTRY, FORT JACKSON, SOUTH CAROLINA, COPIES OF THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS THEY SHALL
BE SIGNED BY THE COMMANDING OFFICER, UNITED STATES ARMY TRAINING CENTER,
INFANTRY, FORT JACKSON, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TEN (10) DAYS FROM THE DATE OF
THIS ORDER IS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
JULY 28, 1972
WE WILL NOT REFUSE ANY EMPLOYEE IN THE UNIT OF WHICH AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1909, AFL-CIO, OR ANY OTHER
LABOR ORGANIZATION, IS THE BARGAINING REPRESENTATIVE, PERMISSION TO BE
REPRESENTED AT ANY MEETING OR FORMAL DISCUSSION BETWEEN MANAGEMENT AND
SAID EMPLOYEE BY THE PRESIDENT OF THE AFORESAID LABOR ORGANIZATION, OR
ANY DULY AUTHORIZED REPRESENTATIVE, WHERE THE MEETING OR FORMAL
DISCUSSION CONCERNS GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
INTERFERING WITH, OR PREVENTING, ANY UNION STEWARD OF AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1909, AFL-CIO, OR ANY
INDIVIDUAL ACTING AS A REPRESENTATIVE OF SAID LABOR ORGANIZATION, FROM
SPEAKING ON BEHALF OF ANY EMPLOYEE AT ANY MEETING OR FORMAL DISCUSSION
BETWEEN MANAGEMENT AND SUCH EMPLOYEE CONCERNING A GRIEVANCE, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491.
DATED . . .
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
DEPARTMENT OF LABOR WHOSE ADDRESS IN ROOM 300, 1371 PEACHTREE STREET,
N.E., ATLANTA, GEORGIA 30309.
/1/ ON MAY 1, 1972, COMPLAINANT FILED WITH THE AREA ADMINISTRATOR A
COMPLAINT AGAINST THE RESPONDENT HEREIN ALLEGING VIOLATION OF SECTION
19(A)(1), (2), (4) AND (6) OF THE ORDER. AT THE HEARING COMPLAINANT
MOVED TO CONSOLIDATE MOVED TO CONSOLIDATE SAID COMPLAINT WITH THE
PRESENT PROCEEDING. THE UNDERSIGNED DENIED THE MOTION SINCE NO
INVESTIGATION HAS BEEN CONDUCTED, NOR A DETERMINATION MADE, AS TO THE
MERITS OF THE LATEST COMPLAINT. FURTHER, THE NOTICE OF HEARING IS
LIMITED TO CASE NO. 40-3520(CA).
/2/ ALL DATES HEREINAFTER MENTIONED WILL BE IN 1971 UNLESS OTHERWISE
STATED.
/3/ RESPONDENT'S EXHIBIT 1.
/4/ RESPONDENT'S EXHIBIT 3.
/5/ RESPONDENT'S EXHIBIT 5.
/6/ RESPONDENT'S EXHIBIT 6.
/7/ RESPONDENT'S EXHIBIT 7.
/8/ SEE HICKS-PONDER COMPANY, 174 NLRB 51 WHERE THE NATIONAL LABOR
RELATIONS FOUND RESPONDENT VIOLATED SECTION 8(A)(1) OF THE ACT
(COMPARABLE TO 19(A)(1) OF THE ORDER) WHEN IT EMPHASIZED TO EMPLOYEES
THE FUTILITY OF BARGAINING WITH THE UNION.
3 A/SLMR 241; P. 46; CASE NO. 31-5456 E.O.; JANUARY 16, 1973.
PORTSMOUTH NAVAL SHIPYARD,
PORTSMOUTH, NEW HAMPSHIRE
A/SLMR NO. 241
THE SUBJECT CASE INVOLVED A HEARING ON OBJECTIONS TO AN ELECTION
FILED BY THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
UNION 90 (NFFE), TO AN ELECTION BETWEEN IT AND THE INTERVENOR, FEDERAL
EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, PORTSMOUTH, NEW HAMPSHIRE
(MTC). THE OBJECTION BY THE NFFE WHICH WAS THE SUBJECT OF THE HEARING
WAS THAT THE ACTIVITY WAS AWARE THAT SEVERAL EMPLOYEES TOOK LEAVE
WITHOUT PAY TO WORK FULL TIME FOR THE MTC CAMPAIGN, AND THAT THESE
EMPLOYEES CONDUCTED A FULL-SCALE CAMPAIGN DURING WORKING HOURS IN THE
INDUSTRIAL AREAS OF THE SHIPYARD.
THE HEARING EXAMINER CONCLUDED THAT THE NFFE DID NOT MEET THE
NECESSARY BURDEN OF PROOF TO ESTABLISH ITS ALLEGATIONS OF OBJECTIONABLE
CONDUCT. THUS, HE FOUND THAT ANY EMPLOYEE, INCLUDING MEMBERS OF NFFE,
COULD HAVE REQUESTED TO BE PLACED ON LEAVE WITHOUT ANY STATUS, THAT NO
NFFE ADHERENT REQUESTED LEAVE WITHOUT PAY, THAT THEY WERE NOT INHIBITED
FROM DOING SO, AND THAT IF THEY HAD MADE SUCH A REQUEST, IT WOULD HAVE
BEEN GRANTED. IN THESE CIRCUMSTANCES, HE FOUND NO IMPROPER OR DISPARATE
TREATMENT IN GRANTING SUCH STATUS TO THE EMPLOYEES WHO SOUGHT IT. THE
HEARING EXAMINER FUTHER FOUND NO VERIFIED VIOLATIONS OF THE ELECTION
GROUND RULES BY MTC OF WHICH THE ACTIVITY WAS AWARE, AND THUS NO
DISCRIMINATORY APPLICATION OF SUCH RULES.
UPON REVIEW OF THE HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND
THE ENTIRE RECORD IN THE CASE, AND NOTING PARTICULARLY THE ABSENCE OF
EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE HEARING EXAMINER'S
CONCLUSION AND RECOMMENDATION THAT THE OBJECTION BE OVERRULED.
ACCORDINGLY, HE RETURNED THE CASE TO THE REGIONAL ADMINISTRATOR FOR
FINAL ACTION.
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION 90
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
PORTSMOUTH, NEW HAMPSHIRE
ON SEPTEMBER 11, 1972, HEARING EXAMINER MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, CONCLUDING
THAT THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
UNION 90, HAD NOT MET ITS BURDEN OF ESTABLISHING THE MATTERS
CONSTITUTING THE GROUNDS OF ITS OBJECTION. ACCORDINGLY, HE RECOMMENDED
THAT THE OBJECTION BE OVERRULED, THE ELECTION BE CONFIRMED, AND THAT THE
INTERVENOR, FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, PORTSMOUTH,
NEW HAMPSHIRE, BE CERTIFIED AS THE CONTINUING CHOICE OF THE MAJORITY OF
THE EMPLOYEES INVOLVED.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE HEARING
EXAMINER MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
HEARING EXAMINER'S REPORT AND RECOMMENDATIONS AND THE ENTIRE RECORD IN
THIS CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED TO THE
REPORT AND RECOMMENDATIONS, I HEREBY ADOPT THE HEARING EXAMINER'S
CONCLUSION AND RECOMMENDATION THAT THE OBJECTION TO THE ELECTION IN THE
SUBJECT CASE BE OVERRULED.
IT IS HEREBY ORDERED THAT THE OBJECTION TO THE ELECTION IN THE
ABOVE-ENTITLED PROCEEDING BE, AND IT HEREBY IS, OVERRULED AND THE CASE
IS RETURNED TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR FINAL ACTION.
DATED, WASHINGTON, D.C.
JANUARY 16, 1973
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION 90
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
PORTSMOUTH, NEW HAMPSHIRE
GEORGE MARGOLIES, ESQ., STAFF COUNSEL AND
JAMES C. GUYETT, NATIONAL REPRESENTATIVE,
FOR THE PETITIONER.
A. GENE NIRO, ESQ., LABOR-MANAGEMENT RELATIONS
SPECIALIST AND
JOSEPH E. KIETA, EMPLOYEE RELATIONS DIVISION,
FOR THE ACTIVITY.
DOUGLAS L. LESLIE, ESQ., O'DONOGHUE & O'DONOGHUE,
BEFORE: MILTON KRAMER, HEARING EXAMINER
PURSUANT TO AN AGREEMENT FOR CONSENT ELECTION BY UNGRADED EMPLOYEES
OF THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, AN ELECTION
FOR AN EXCLUSIVE REPRESENTATIVE WAS CONDUCTED UNDER THE SUPERVISION OF
THE AREA ADMINISTRATION, LABOR-MANAGEMENT SERVICES ADMINISTRATION,
BOSTON, MASSACHUSETTS, ON NOVEMBER 9, 1971. A RECOUNT /1/ ON NOVEMBER
11, 1971 OF THE TALLY OF BALLOTS SHOWED:
APPROXIMATE NUMBER OF ELIGIBLE VOTERS . . . 3,442
VOTES FOR NATIONAL FEDERATION OF FEDERAL EMPLOYEES /2/ . . . 987
VOTES FOR METAL TRADES COUNCIL, AFL-CIO /3/ . . . 1,286
VOTES AGAINST EXCLUSIVE RECOGNITION . . . 98
VOID BALLOTS . . . 3
CHALLENGED BALLOTS . . . 0
TOTAL VALID VOTES CAST . . . 2,371
ON NOVEMBER 15, 1971, THE PETITIONER FILED ELEVEN TIMELY OBJECTIONS
TO THE ELECTION WITH THE AREA ADMINISTRATOR AND ASKED THAT THE ELECTION
BE SET ASIDE. IN ACCORDANCE WITH SECTION 202.20(C) AND (D) OF THE
REGULATIONS (29 CFR CHAPTER II), THE AREA ADMINISTRATOR INVESTIGATED THE
OBJECTIONS AND REPORTED THEREON TO THE REGIONAL ADMINISTRATOR.
THE REGIONAL ADMINISTRATOR, ON MARCH 15, 1972, ISSUED HIS REPORT AND
FINDINGS ON OBJECTIONS. HE FOUND TEN OF THE ELEVEN OBJECTIONS TO BE
WITHOUT MERIT. HE FOUND THAT OBJECTION #4 RAISED "A RELEVANT QUESTION
OF FACT WHICH MAY HAVE AFFECTED THE RESULTS OF THE ELECTION AND THAT A
SUBSTANTIAL QUESTION OF INTERPRETATION AND POLICY EXISTS." THE REGIONAL
ADMINISTRATOR ANNOUNCED HIS INTENTION TO ISSUE A NOTICE OF HEARING. NO
REVIEW WAS SOUGHT OF THE ADMINISTRATOR'S FINDINGS. HE ISSUED A NOTICE
OF HEARING ON APRIL 18, 1972. THE HEARING WAS HELD ON MAY 2 AND 3,
1972, AT THE PORTSMOUTH NAVAL SHIPYARD. THE PETITIONER, THE ACTIVITY,
AND THE INTERVENOR WERE EACH REPRESENTED BY COUNSEL, EXAMINED AND
CROSS-EXAMINED WITNESSES, INTRODUCED EXHIBITS, AND MADE CLOSING
AGREEMENTS AT THE HEARING, AND SUBMITTED POST-HEARING BRIEFS.
OBJECTION #4, ON WHICH THE HEARING WAS HELD, WAS:
"THE NFFE, LOCAL 90, CHARGE THAT TOP MANAGEMENT OFFICIALS WERE AWARE
THAT DURING THE ELECTIONEERING, SEVERAL EMPLOYEES, EMPLOYED AT THE
SHIPYARD, TOOK LEAVE TO WORK FULL TIME FOR THE METAL TRADES COUNCIL
CAMPAIGN IN THE SHIPYARD. THESE EMPLOYEES WHO WERE ON LEAVE FROM THEIR
SHIPYARD JOBS, CONDUCTED A FULL-SCALE CAMPAIGN DURING THE WORKING HOURS
IN THE INDUSTRIAL AREAS; DOCKS, SHOPS, ETC. AT THE PORTSMOUTH NAVAL
SHIPYARD."
THE LEGAL AND FACTUAL DISAGREEMENTS OF THE PARTIES CENTER AROUND THE
SEVEN EMPLOYEES WHO OBTAINED LEAVE WITHOUT PAY FOR TWO WEEKS BEFORE THE
ELECTION. THESE EMPLOYEES WERE STEWARDS FOR THE VARIOUS CRAFTS
COMPOSING THE METAL TRADES COUNCIL. THE GROUND RULES FOR THE ELECTION
PROVIDED THAT NON-EMPLOYEE REPRESENTATIVES OF THE COMPETING UNIONS COULD
NOT GO TO SECURITY AREAS OF THE SHIPYARD WITHOUT A GUARD ESCORT AND THAT
NO ELECTIONEERING COULD BE CONDUCTED IN WORK AREAS OR DURING WORKING
HOURS. THESE SEVEN LWOP EMPLOYEES WERE REGARDED BY THE ACTIVITY AS
EMPLOYEES AND PERMITTED TO MOVE ABOUT THE YARD WITHOUT ESCORT. THE
GROUND RULES PROVIDED ALSO THAT NOT MORE THAN ONE NON-EMPLOYEE
REPRESENTATIVE OF EITHER SIDE WOULD BE PERMITTED TO CAMPAIGN IN THE YARD
AT THE SAME TIME; THESE SEVEN MEN WERE NOT CONSIDERED AS NON-EMPLOYEE
REPRESENTATIVES FOR SUCH PURPOSE.
THE PETITIONER CONTENDS THAT THESE SEVEN EMPLOYEES ENGAGED IN
ELECTIONEERING IN WORK AREAS AND DURING WORKING HOURS OF THE MEN WITH
WHOM THEY ELECTIONEERED; THAT DURING THEIR PERIOD OF LEAVE WITHOUT PAY
THEY SHOULD HAVE BEEN TREATED AS NON-EMPLOYEE REPRESENTATIVES OF THEIR
UNIONS; THAT PERMITTING THEM TO MOVE ABOUT THE SHIPYARD WITHOUT ESCORT
WHILE NON-EMPLOYEE REPRESENTATIVES OF NFFE WERE REQUIRED TO HAVE AN
ESCORT WAS DISPARATE TREATMENT OF THE COMPETING UNIONS; AND THAT NOT
TREATING THE LWOP MEN AS NON-EMPLOYEE REPRESENTATIVES FOR THE PURPOSE OF
THE GROUND RULE OF NOT-MORE-THAN-ONE IN THE YARD AT THE SAME TIME WAS
ALSO DISPARATE TREATMENT. THE PETITIONER CONTENDS ALSO THAT THE SEVEN
LWOP MEN REPEATEDLY VIOLATED THE GROUND RULES, THAT THE ACTIVITY HAD THE
OBLIGATION AND FAILED TO FULFILL THE OBLIGATION OF POLICING THE GROUND
RULES, THAT THE ACTIVITY TOOK NO ACTION CONCERNING NUMEROUS MTC
VIOLATIONS OF THE GROUND RULES REPORTED TO THE ACTIVITY, AND THAT THESE
CIRCUMSTANCES GAVE AN UNFAIR ADVANTAGE TO THE METAL TRADES COUNCIL. IT
CONTENDS THAT ALL THIS WAS IN VIOLATION OF SECTIONS 1 AND 19(A)(3) OF
EXECUTIVE ORDER 11491.
THE ACTIVITY CONTENDS THAT IT IMPOSED THE LIMITATION OF NOT MORE THAN
ONE NON-EMPLOYEE REPRESENTATIVE AT A TIME ON ITS PREMISES BECAUSE OF
SECURITY REASONS AND ITS LIMITED ABILITY TO FURNISH ESCORT GUARDS FOR
NON-EMPLOYEE REPRESENTATIVES; THAT IT DID NOT APPLY SUCH LIMITATION TO
THE LWOP EMPLOYEES BECAUSE (1) THEY HAD SECURITY CLEARANCE, (2) THEY
WERE EMPLOYEES FOR ALL PURPOSES EXCEPT THE OBLIGATION TO RENDER SERVICES
FOR THE TEMPORARY PERIOD, AND (3) IT WAS THE LONG-STANDING PRACTICE OF
THE SHIPYARD TO PERMIT LWOP EMPLOYEES THEIR USUAL ACCESS TO THE YARD
WHEN ON LWOP STATUS FOR NOT MORE THAN NINETY DAYS; THAT OF THE ALLEGED
VIOLATIONS OF THE GROUND RULES BY THE MTC MEN ONLY TWO WERE REPORTED TO
IT AND NEITHER OF THEM COULD BE CORROBORATED; THAT NFFE COULD HAVE HAD
A REASONABLE NUMBER OF ITS EMPLOYEE-SUPPORTERS ON LWOP STATUS WITH THE
SAME FREEDOM OF MOVEMENT AS THE MTC-LWOP MEN BECAUSE SUCH STATUS WAS A
CONTRACTUAL RIGHT UNDER THE COLLECTIVE BARGAINING AGREEMENT EXCEPT WHEN
IT WOULD UNDULY IMPEDE OPERATIONS; THAT IF THERE WERE VIOLATIONS OF THE
GROUND RULES OF MTC IT WAS WITHOUT THE ACTIVITY'S KNOWLEDGE OR CONSENT;
THAT THE PETITIONER ENGAGED IN CORROBORATED VIOLATIONS OF THE GROUND
RULES WITHOUT SANCTION; AND THAT THE GROUND RULES WERE SELF-ENFORCING
AND IT DID NOT HAVE THE OBLIGATIONS TO POLICE THEM IN THE ABSENCE OF
VERIFIED INFORMATION OF THEIR VIOLATION.
THE INTERVENOR ENDORSES THE POSITION OF THE ACTIVITY AND EMPHASIZES
THAT NO MTC VIOLATIONS OF THE GROUND RULES WERE ESTABLISHED; THAT THE
ACTIVITY'S INTERPRETATIONS AND APPLICATIONS OF THE GROUND RULES WERE NOT
ARBITRARY, DISCRIMINATORY, OR IN BAD FAITH AND HENCE SHOULD NOT BE
OVERTURNED; THAT THE CONFLICTS IN TESTIMONY MUST BE RESOLVED AGAINST
THE PETITIONER; AND THAT SETTING ASIDE AN ELECTION ON THE EVIDENCE
PRESENTED BY THE PETITIONER WOULD SUBJECT EVERY ELECTION TO BEING SET
ASIDE. IT ARGUES ALSO THAT MISCONDUCT BY MTC IS NOT AN ISSUE IN THIS
CASE UNLESS THE ACTIVITY KNEW OF AND CONDONED THE MISCONDUCT, BECAUSE
OBJECTION #4 IS ADDRESSED SOLELY TO DISPARATE TREATMENT OF THE UNIONS BY
MANAGEMENT AND DOES NOT COMPLAIN OF MTC VIOLATIONS OF THE ELECTION
RULES.
AN ELECTION BY SECRET BALLOT FOR EXCLUSIVE REPRESENTATIVE OF UNGRADED
EMPLOYEES (APPROXIMATELY 3,442 WERE ELIGIBLE TO VOTE) WAS HELD ON THE
PREMISES OF THE ACTIVITY ON NOVEMBER 9, 1971, WITH THE RESULT SHOWN
ABOVE. A SWING OF 150 VOTES FROM MTC TO NFFE WOULD HAVE REVERSED THE
RESULT OF THE ELECTION.
THE PARTIES, INCLUDING THE ACTIVITY, HAD A SERIES OF MEETINGS TO
DISCUSS GROUND RULES FOR THE ELECTION. THE FIRST MEETING WAS ON OCTOBER
7, 1971. AT THAT MEETING SEVERAL POINTS WERE AGREED ON BUT NO AGREEMENT
COULD BE REACHED ON THE NUMBER OF NON-EMPLOYEE REPRESENTATIVES WHO WOULD
BE PERMITTED TO HAVE ACCESS TO THE SHIPYARD DURING THE CAMPAIGN PERIOD.
THE SHIPYARD IS A NAVY INSTALLATION WHERE ATOMIC SUBMARINES ARE REPAIRED
AND OVERHAULED AND HENCE PRESENTS SECURITY PROBLEMS. BECAUSE OF SUCH
CONSIDERATIONS, AND SOLELY FOR THAT REASON, THE ACTIVITY INSISTED ON
RESTRICTIONS ON THE NUMBER OF NON-EMPLOYEE REPRESENTATIVES WHO WOULD BE
PERMITTED TO HAVE ACCESS TO THE SECURITY AREAS OF THE SHIPYARD. THE
SECURITY AREAS IN THE YARD ARE IDENTIFIED BY PAINTED WHITE LINES AROUND
THEM AND BY LARGE SIGNS AT ENTRANCES TO BUILDINGS.
A SECOND MEETING ON THE GROUND RULES WAS HELD ON OCTOBER 12. JOSEPH
E. KIETA, HEAD OF THE LABOR RELATIONS OFFICE OF THE ACTIVITY, HAD
CLEARED WITH THE SECURITY OFFICE THAT NON-EMPLOYEE REPRESENTATIVES COULD
HAVE ACCESS TO THE TWO MAIN CAFETERIAS EVEN THOUGH THEY WERE LOCATED IN
SECURITY AREAS. JAMES C. GUYETT, A NATIONL REPRESENTATIVE OF NFFE AND
THE CHIEF OFFICIAL OF THAT ORGANIZATION FOR THE ELECTION CAMPAIGN, WAS
DISSATISFIED AND ASKED FOR AND WAS GIVEN MEETINGS WITH KIETA'S SUPERIORS
AND FINALLY WITH THE COMMANDER OF THE SHIPYARD. THE COMMANDER
TENTATIVELY DECIDED, BECAUSE OF THE LIMITED AVAILABILITY OF ESCORT
GUARDS, THAT THE COMPETING PARTIES WOULD EACH BE PERMITTED TO HAVE ONLY
ONE NATIONAL (NON-EMPLOYEE) REPRESENTATIVE AT A TIME WITH ACCESS TO THE
YARD, BUT ONLY WITH AN ESCORT. MR. GUYETT THEN ASKED FOR ONLY ONE
NON-EMPLOYEE REPRESENTATIVE AT A TIME WITH ACCESS TO THE YARD, AND SAID
HE WOULD BE SATISFIED WITH SUCH LIMITATION.
AT A MEETING ON OCTOBER 13 THE ACTIVITY SAID THAT THE NATIONAL
(NON-EMPLOYEE) REPRESENTATIVES COULD GO TO SECURITY AREAS AND EVEN
INSIDE THE BUILDINGS BUT ONLY IF ESCORTED. MR. JOHN F. MEESE, GRAND
LODGE REPRESENTATIVE OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS (ONE OF THE COMPONENTS OF THE METAL TRADES COUNCIL),
SUGGESTED THAT EACH SIDE BE PERMITTED TO HAVE EIGHT NON-EMPLOYEE
REPRESENTATIVES, WITH ESCORTS, WITH ACCESS TO THE YARD. GUYETT OBJECTED
TO SUCH ARRANGEMENT ON THE GROUND THAT IT WOULD DISADVANTAGE THE
PETITIONER. THE COMMANDER OBJECTED ON THE GROUND THAT HE COULD NOT
FURNISH THAT MANY ESCORTS; THE SECURITY OFFICER HAD DETERMINED THAT HE
COULD NOT FURNISH MORE THAN THREE ESCORTS FOR THE PURPOSE. MEESE THEN
SUGGESTED THAT THE UNIONS DIVIDE THE COST OF FURNISHING THE ADDITIONAL
ESCORTS. GUYETT TESTIFIED THAT HE THOUGHT SUCH SUGGESTION WAS MADE IN
JEST BUT IN ANY EVENT OBJECTED TO SUCH AN ARRANGEMENT. I FIND THAT THE
SUGGESTION WAS NOT MADE IN JEST. THE ACTIVITY TOOK THE POSITION THAT IT
COULD NOT FURNISH THAT MANY ESCORTS REGARDLESS OF WHO PAID FOR THEM AND
THAT THERE WAS SOME LEGAL QUESTION ABOUT ITS AUTHORITY TO OBTAIN
ADDITIONAL ESCORTS WITH THE COST TO BE REIMBURSED BY THE UNIONS. MEESE
COMPLAINED ABOUT THE FINAL DECISION OF THE ACTIVITY THAT ONLY ONE
NATIONAL REPRESENTATIVE FROM EACH SIDE WOULD BE PERMITTED IN THE YARD AT
THE SAME TIME, AND ONLY WITH AN ESCORT, ON THE GROUND THAT THAT WOULD
NOT BE ENOUGH FOR EFFECTIVE CAMPAIGNING, AND FILED A CHARGE OF AN UNFAIR
LABOR PRACTICE BASED ON SUCH DECISION. THE RECORD DOES NOT INDICATE
WHAT DISPOSITION OR OTHER PROCESSING OF THAT CHARGE HAS BEEN HAD. A SET
OF GROUND RULES WAS ISSUED ON AN INTERIM BASIS AT THE CONCLUSION OF THE
MEETING.
THE FOLLOWING DAY, OCTOBER 14, 1971, THE ACTIVITY BASED A REVISED SET
OF GROUND RULES AS THE FINAL GOVERNING RULES WHICH IT STATED IT
CONSIDERED TO BE THE BEST COMPROMISE FOR THE PURPOSES OF MAINTAINING
SECURITY, KEEPING THE COSTS TO THE SHIPYARD WITHIN REASONABLE BOUNDS,
AND PROVIDING BOTH ORGANIZATIONS WITH A REASONABLE OPPORTUNITY TO MAKE
PERSONAL CONTACT WITH THE EMPLOYEES. SO FAR AS HERE PERTINENT THESE
RULES PROVIDED:
"OBSERVERS
ACCESS TO SHIPYARD PREMISES BY NON-EMPLOYEE REPRESENTATIVE
2. . . . . .
A. NON-EMPLOYEE REPRESENTATIVE WILL, UPON ARRIVAL OR PRIOR TO
ARRIVAL, ADVISE THE EMPLOYEE RELATIONS DIVISION . . . OF THE NAMES OF
THE REPRESENTATIVES, THE DESTINATION, THE TIMES OF ARRIVAL AND DEPARTURE
INTENDED.
B. NON-EMPLOYEE REPRESENTATIVES MAY PROCEED WITHOUT ESCORT TO
NON-WORK AREAS IN NON-SECURITY AREAS.
C. NOT MORE THAN ONE NON-EMPLOYEE REPRESENTATIVE AT ONE TIME WILL BE
ALLOWED TO PROCEED, UNDER SHIPYARD ESCORT, TO THE CAFETERIAS IN BUILDING
18 AND BUILDING 174 AND TO THE ENTRANCES TO DESIGNATED SHOP BUILDINGS IN
THE SECURITY AREA, FOR THE PURPOSE OF CAMPAIGNING, DURING SPECIFIED
HOURS. . . . THE NON-EMPLOYEE REPRESENTATIVES OF EACH PARTY DESIRING TO
CAMPAIGN IN THESE AREAS WILL APPEAR PERSONALLY AT GATE 1 TO REQUEST AN
ESCORT.
D. . . . .
3. ALLEGED VIOLATIONS OF THE ABOVE WILL BE REPORTED TO THE EMPLOYEE
RELATIONS DIVISION IMMEDIATELY. VIOLATION OF ANY OF THE ABOVE MAY
RESULT IN IMMEDIATE TERMINATION OF THE PARTY'S PRIVILEGES OF ACCESS TO
THE PREMISES.
ELECTIONEERING AND DISTRIBUTION OF LITERATURE
THE LABOR ORGANIZATIONS INVOLVED MAY ENGAGE IN THE DISTRIBUTION OF
LITERATURE AND ANY OTHER KIND OF LEGITIMATE ELECTIONEERING ACTIVITIES,
INCLUDING LEGITIMATE ELECTIONEERING ACTIVITIES, INCLUDING SOLICITATION .
. . PROVIDED IT IS DONE DURING THE NON-DUTY HOURS OF EMPLOYEES INVOLVED
AND IN NON-WORK AREAS.
* * *
USE OF ACTIVITY FACILITIES
. . . THE ACTIVITY WILL MAKE AVAILABLE FACILITIES FOR THE HOLDING OF
UNION MEETINGS OUTSIDE OF THE WORK HOURS OF EMPLOYEES INVITED TO ATTEND.
EACH LABOR ORGANIZATION MAY BE ALLOWED A MAXIMUM OF THREE SUCH MEETINGS
. . . ONE OF WHICH MAY BE HELD IN THE AUDITORIUM (BUILDING 22).
REQUESTS FOR SUCH MEETINGS WILL BE SUBMITTED IN WRITING TO THE HEAD,
EMPLOYEES RELATIONS DIVISION, AT LEAST 48 HOURS PRIOR TO THE DATE
SOUGHT. . . . .
USE OF ACTIVITY BULLETIN BOARDS
THE LABOR ORGANIZATIONS INVOLVED WILL BE PERMITTED THE USE OF
ACTIVITY BULLETIN BOARDS (WITH LIMITATIONS). . ."
SEVEN EMPLOYEES WHO WERE SHOP STEWARDS OF MTC FOR ITS VARIOUS CRAFTS
APPLIED FOR AND WERE GRANTED LEAVE WITHOUT PAY FOR THE PERIOD OCTOBER
26, 1971 THROUGH NOVEMBER 5, 1971. THE LATTER DATE WAS THE FRIDAY
BEFORE THE ELECTION. THE REASON GIVEN WAS TO SPEND TIME ON "UNION
BUSINESS." THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE ACTIVITY AND
MTC PROVIDED THAT THE ACTIVITY WOULD AUTHORIZE LEAVE WITHOUT PAY UPON AN
EMPLOYEE'S REQUEST "PROVIDED . . . APPROVAL WOULD NOT UNDULY INTERRUPT
OR PROHIBIT MEETING WORK SCHEDULE REQUIREMENTS." /4/
THE AGREEMENT PROVIDED ALSO:
"TIME AWAY FROM THE JOB . . . WILL BE AUTHORIZED WITHOUT LOSS OF PAY
. . . TO PERMIT . . . STEWARDS TO PROPERLY AND EXPEDITIOUSLY DISCUSS
APPROPRIATE MATTERS DIRECTLY RELATED TO GENERAL WORKING CONDITIONS. . .
. IT IS AGREED THAT SUCH TIME . . . SHALL NOT BE USED FOR THE
DISCUSSION OF ANY MATTERS CONNECTED WITH UNION BUSINESS SUCH AS THE
COLLECTION OF DUES, ASSESSMENTS, SOLICITATION OF MEMBERSHIPS . . . THE
DISTRIBUTION OF LITERATURE OR AUTHORIZATION CARDS . . . " /5/
STEWARDS IN THE PAST HAD SOMETIMES USED THIS PROVISION TO OBTAIN TIME
OFF TO CONDUCT UNION BUSINESS AND HAD SOMETIMES TAKEN LEAVE WITHOUT PAY
FOR THAT PURPOSE. THEY HAD NOT IN THE PAST TAKEN AS MUCH AS TWO WEEKS
LWOP TO CONDUCT UNION BUSINESS.
WHEN MR. KIETA (THE ACTIVITY'S HEAD OF LABOR RELATIONS) LEARNED THAT
THE SEVEN STEWARDS HAD REQUESTED AND BEEN GRANTED LWOP FOR TWO WEEKS
PRECEDING THE ELECTION IT OCCURED TO HIM THAT THEY MIGHT SPEND THE TIME
ELECTIONEERING. HE SENT A LETTER ON OCTOBER 21, 1971 ADDRESSED JOINTLY
TO THE PRESIDENT OF THE LOCAL MTC AND THE PRESIDENT OF THE LOCAL NFFE,
WITH COPIES TO EACH OF THE SEVEN STEWARDS AND THEIR SUPERVISORS,
POINTING OUT THE RESTRICTIONS ON CAMPAIGNING OF EMPLOYEES IN A NON-DUTY
STATUS. IN THE PERIODICAL "MANAGEMENT NEWSLETTER" OF OCTOBER 25, 1971,
DISTRIBUTED TO SUPERVISORS, HE ALSO MENTIONED SOME OF THE RIGHTS AND
RESTRICTIONS CONCERNING CAMPAIGNING, AND INSTRUCTED THOSE WHO RECEIVED
THE PUBLICATIONS THAT THEY SHOULD REPORT TO THE EMPLOYEE RELATIONS
DIVISION ANY VIOLATIONS OBSERVED BY OR REPORTED TO THEM.
IT WAS THE PRACTICE OF THE SHIPYARD TO PERMIT EMPLOYEES WHO TOOK TIME
OFF FOR LESS THAN NINETY DAYS TO RETAIN THEIR IDENTIFICATION BADGES AND
TO HAVE THEIR USUAL ACCESS TO THE SHIPYARD FOR LEGITIMATE PURPOSES. THE
SEVEN LWOP RETAINED THEIR BADGES AND WERE PERMITTED THEIR USUAL ACCESS
TO THE YARD.
MR. MEESE, THE IAM GRAND LODGE REPRESENTATIVE DETAILED TO THE
ELECTION AS THE COORDINATOR OF THE CAMPAIGN FOR MTC, TESTIFIED THAT THE
SEVEN STEWARDS TOOK LEAVE WITHOUT PAY TO PERFORM SEVERAL FUNCTIONS FOR
THEIR UNIONS. THESE INCLUDED DISCUSSING WITH THE EMPLOYEES NUMEROUS
PROBLEMS ARISING FROM A CHANGE IN PARKING REGULATIONS AND A SHIFT
CHANGE, CONCERNING WHICH MORE THAN TWO HUNDRED COMPLAINTS WERE MADE, TO
ENGAGE IN ELECTIONEERING IN NON-WORK AREAS DURING NON-WORK TIME, TO
APPROVE HANDBILLS, TO MEET FROM TIME TO TIME TO DECIDE ON STRATEGY IN
THE CAMPAIGN, AND THE LIKE. THE SEVEN VOLUNTEERED FOR THE WORK, AND
WERE NOT PAID FOR THEIR UNION WORK EXCEPT FOR OUT-OF-POCKET EXPENSES.
HE TESTIFIED THAT HE INSTRUCTED THE SEVEN NOT TO ENGAGE IN
ELECTIONEERING WITH EMPLOYEES DURING THEIR WORKING HOURS EVEN IF
ACCOSTED BY THE EMPLOYEES.
THREE OF THE SEVEN (SIMPSON, MOORENOVICH, AND O'BRIEN) TESTIFIED AND
CORROBORATED MEESE'S TESTIMONY. O'BRIEN SPENT MOST OF HIS TIME DURING
THE TWO-WEEK PERIOD ON ANOTHER ELECTION.
NONE OF THE EMPLOYEES WERE OFFICERS OR ADHERENTS OF NFFE SOUGHT LEAVE
WITHOUT PAY, AND OF COURSE THE ACTIVITY DID NOT DENY SUCH LEAVE TO ANY
OF THEM. GUYETT TESTIFIED THAT AT A MEETING WITH KIETA, AT WHICH THEY
WERE THE ONLY PEOPLE PRESENT, KIETA SAID THAT IF ANY NFFE ADHERENTS
SHOULD ASK FOR LWOP THEY WOULD HAVE TO GIVE A REASON, TIME WOULD BE
REQUIRED TO INVESTIGATE THE REQUEST, AND THE REQUEST MIGHT NOT BE
GRANTED. HE TESTIFIED THAT THIS CONVERSATION TOOK PLACE TWO DAYS AFTER
THE SEVEN MTC MEN HAD BEEN GRANTED LWOP. /6/ KIETA DENIED THAT HE TOLD
GUYETT THAT HE WOULD HAVE TO INVESTIGATE SUCH REQUESTS AND THAT IT WOULD
TAKE TIME. HE TESTIFIED THAT UNDER THE COLLECTIVE AGREEMENT ALL
EMPLOYEES HAD A RIGHT TO LEAVE WITHOUT PAY AS DESCRIBED ABOVE, AND HAD
NFFE ADHERENTS ASKED FOR SUCH LEAVE AND STATED THEY WANTED IT FOR UNION
BUSINESS THEY WOULD HAVE BEEN GRANTED THE LEAVE.
GUYETT DID NOT ASK FOR LWOP FOR ANY SPECIFIC EMPLOYEES, AND I FIND
THAT IF ANY NFFE ADHERENTS HAD ASKED FOR LWOP TO WORK ON THE CAMPAIGN
SUCH LEAVE WOULD HAVE BEEN GRANTED REASONABLY PROMPTLY. I FIND, BASED
UPON THE GREATER CREDITABILITY OF KIETA'S TESTIMONY, THAT THE ACTIVITY
DID NOT INHIBIT SUCH REQUESTS.
OBJECTION #4 CHARGES THAT THE ACTIVITY WAS AWARE THAT THE SEVEN MTC
MEN TOOK LWOP TO WORK FULL TIME FOR THE CAMPAIGN IN THE SHIPYARD AND
CONDUCTED A FULL SCALE CAMPAIGN DURING WORKING HOURS IN THE INDUSTRIAL
AREAS OF THE YARD. THE EVIDENCE DOES NOT SUPPORT THE CONTENTIONS THAT
THE ACTIVITY WAS AWARE THAT THE LWOP WAS REQUESTED FOR THE SEVEN MENT TO
WORK FULL TIME ON THE CAMPAIGN IN THE SHIPYARD, NOR DOES IT ESTABLISH
THAT THE SEVEN MEN IN FACT SO SPENT THEIR FULL TIME. THE EVIDENCE DOES
ESTABLISH, AND I FIND, THAT SOME OF THE SEVEN SPENT SOME OF THEIR TIME
ON THE CAMPAIGN, AND THAT THE ACTIVITY SUSPECTED THEY MIGHT DO SO AND
CAUTIONED THEM AND THEIR SUPERVISORS ON THE LIMITATIONS ON CAMPAIGNING
PRESCRIBED BY THE GROUND RULES.
THERE WAS CONSIDERABLE EVIDENCE, MUCH OF IT CONFLICTING, ON THE
ACTIVITIES OF THE SEVEN DURING THEIR LWOP PERIOD, PARTICULARLY
CONCERNING THEIR ALLEGED VIOLATIONS OF THE GROUND RULES.
JOHN F. MEESE, THE COORDINATOR OF THE ELECTION CAMPAIGN FOR MTC WAS A
NON-EMPLOYEE OF THE ACTIVITY, TESTIFIED ON THE PURPOSE OF THE REQUESTS
FOR LWOP AND THE ACTIVITIES OF THE MEN WHO TOOK LWOP. HE TESTIFIED THAT
HE FAMILIARIZED HIMSELF WITH THE GROUND RULES AND KNEW THAT VIOLATIONS
OF THE RULES COULD RESULT IN SUCCESSFUL OBJECTIONS TO AN ELECTION, THAT
HE WENT OVER THE GROUND RULES WITH THE SEVEN MEN AND ADVISED THEM THAT
THEY WERE BOUND BY THE RULES EVEN THOUGH THEY HAD NOT AGREED TO THEM,
AND THAT OTHER NATIONAL REPRESENTATIVES ASSIGNED TO ASSIST MEESE DID NOT
ENTER THE SHIPYARD AT ALL. HE TESTIFIED THAT HE NEEDED THE MEN TO
ASSIST IN PREPARING AND EDITING NEWSLETTERS AND HAVING THEM PRINTED AND
MAILING THEM TO THE EMPLOYEES WITHIN THE BARGAINING UNIT BOTH MEMBERS
AND NON-MEMBERS OF MTC; THAT HE WANTED THEIR ASSISTANCE TO ASCERTAIN
WHAT QUESTIONS WERE IMPORTANT TO THE EMPLOYEES IN THE BARGAINING UNIT
AND TO PREPARE HANDBILLS ON SUCH MATTERS; THAT MTC HAD BEEN CRITICIZED
BY NFFE FOR FAILING TO REPRESENT THE EMPLOYEES IN PROBLEMS ARISING FROM
A SHIFT CHANGE AND A CHANGE IN PARKING POLICY AND HE WANTED THOSE
PROBLEMS, ABOUT WHICH MORE THAN TWO HUNDRED COMPLAINTS HAD BEEN MADE,
HANDLED; AND THAT HE WANTED THE NORMAL SERVICING OF THE COLLECTIVE
BARGAINING AGREEMENT TO CONTINUE DURING THE CAMPAIGN. HE TESTIFIED THAT
THE SEVEN CAMPAIGNED IN NON-WORK AREAS WITH MEN DURING THEIR NON-WORK
TIME, AND MET WITH EACH OTHER FROM TIME TO TIME DURING THE DAY TO
DISCUSS PROGRESS AND DECIDE WHAT TO DO.
HE TESTIFIED ALSO THAT MESSRS MOORENOVICH AND SIMPSON, TWO OF THE
SEVEN, WERE ASSIGNED TWO OR THREE TIMES A DAY TO MAKE A TOUR OF THE YARD
TO CHECK THE BULLETIN BOARDS, TO REPLACE ANY MATERIAL THAT HAD
IMPROPERLY OR MISTAKENLY BEEN REMOVED, AND TO BE SURE NFFE MATERIAL WAS
NOT ON MTC BULLETIN BOARDS.
FREEMAN LINSCOTT TESTIFIED THAT HE HAD BEEN TOLD BY SOME UNIDENTIFIED
MEN THAT SIMPSON (ONE OF THE SEVEN) HAD BEEN ELECTIONEERING DURING A
COFFEE BREAK. /7/ HE TESTIFIED THAT HE REPORTED THIS TO MR. LA ROCHELLE
(A LABOR-MANAGEMENT RELATIONS SPECIALISTS ON KIETA'S STAFF) BY
TELEPHONE, THAT LA ROCHELLE SAID THAT SUCH ACTIVITY WOULD BE IMPROPER
AND THAT HE WOULD INVESTIGATE, AND THAT LINSCOTT HEARD NOTHING FURTHER
ABOUT IT. LA ROCHELLE TESTIFIED THAT HE HAD NO RECORD OR RECOLLECTION
OF SUCH COMMUNICATION AND THAT IT WAS HIS PRACTICE DURING THE CAMPAIGN
TO PREPARE A MEMORANDUM OF ALL TELEPHONE CALLS CONCERNING THE CAMPAIGN.
LINSCOTT TESTIFIED THAT HE OBSERVED OR HAD REPORTED TO HIM OTHER
ACTIVITIES OF SIMPSON, MOORENOVICH, AND O'BRIEN THAT MIGHT HAVE BEEN
VIOLATIONS OF THE GROUND RULES (SOME OF THEM INVOLVED CONVERSATIONS THE
SUBJECT OF WHICH HE DID NOT KNOW OR DID NOT TESTIFY), BUT DID NOT REPORT
THEM BECAUSE NOTHING HAD HAPPENED AS A RESULT OF HIS FIRST COMPLAINT. I
FIND, BASED UPON THE SHAKY NATURE OF LINSCOTT'S TESTIMONY, HIS UNSTABLE
BACKGROUND OF UNION SYMPATHY, AND LA ROCHELLE'S POSITIVE TESTIMONY OF
RECORD KEEPING TOGETHER WITH LACK OF RECOLLECTION OF SUCH TELEPHONE
CALL, THAT THE ACTIVITY WAS NOT AWARE OF ANY OF THESE ALLEGED
VIOLATIONS, INCLUDING THE FIRST ONE. IT IS NOTED THAT LINSCOTT
TESTIFIED THAT HE HAD BELONGED TO A UNION (NOT THE PETITIONER) THAT WAS
A RIVAL OF MTC, THAT HE HAD TRIED TO HAVE MTC DECERTIFIED AS
REPRESENTATIVE, THAT HE THEN JOINED MTC AND BECAME A STEWARD AND
GRIEVANCE COMMITTEE CHAIRMAN AND RESIGNED BECAUSE HE HEARD RUMORS THAT
MTC AND MANAGEMENT WERE COLLUDING TO GET RID OF HIM AS A UNION OFFICIAL,
THAT HE THEN TRIED TO REVIVE HIS OLD UNION AND AGAIN TRIED TO HAVE MTC
DECERTIFIED, AND THAT HE DOES NOT DISLIKE ANY OF THE PRESENT MTC
OFFICERS.
ARVID GUSTAFSON HAD BEEN A MEMBER OF MTC BUT HAD RESIGNED AND JOINED
NFFE. HE TESTIFIED HE SAW SEVERAL OF THE LWOP MEN AND ONE OTHER MTC
STEWARD ENGAGING IN VIOLATIONS OF THE GROUND RULES BY CAMPAIGNING DURING
WORKING HOURS AND REPORTED THEM TO GUYETT. HE TESTIFIED THAT GUYETT
REPORTED THE VIOLATIONS TO KIETA BY TELEPHONE AND THAT HE WAS PRESENT ON
AT LEAST ONE OCCASION WHEN GUYETT DISCUSSED SUCH VIOLATIONS WITH KIETA
IN KIETA'S OFFICE. HE TESTIFIED THAT GUYETT COMPLAINED OF THE
VIOLATIONS IN GENERAL TERMS AND THAT NEITHER HE NOR GUYETT DESCRIBED THE
SPECIFIC VIOLATIONS. I FIND, UPON THE BASIS OF KIETA'S TESTIMONY AND
THE PARTIAL CORROBORATION BY GUSTAFSON, AND NFFE SYMPATHIZER, THAT THE
EVIDENCE DOES NOT ESTABLISH THAT IF THESE VIOLATIONS OCCURRED THAT
MANAGEMENT WAS INFORMED OF THEM.
HARRY C. LATTERBUSH TESTIFIED THAT ON ONE OCCASION HE SAW SIMPSON IN
A SECURITY AREA WITH TWO OR THREE WORKERS SHORTLY BEFORE QUITTING TIME
AND REPORTED IT TO HIS SHOP SUPERVISOR. HE DID NOT KNOW WHETHER HIS
SUPERVISOR REPORTED IT IN TURN TO THE GENERAL FOREMAN. ON ANOTHER
OCCASION HE FOUND MTC CAMPAIGN LITERATURE ON THE TABLES IN A CAFETERIA
WHICH MUST HAVE BEEN PLACED THERE BEFORE THE CAFETERIA WAS OPEN TO THE
SHIFT. HE DID NOT KNOW WHEN OR BY WHOM THE LITERATURE HAD BEEN
DISTRIBUTED. THERE IS NO EVIDENCE THAT EITHER OF THESE INCIDENTS, IF
EITHER OF THEM INVOLVED AN INFRACTION OF THE GROUND RULES, WAS REPORTED
TO TOP MANAGEMENT OR THAT MANAGEMENT OTHERWISE KNEW ABOUT THEM.
KENNETH E. THOMPSON WAS PRESIDENT OF THE NFFE LOCAL AND AN EMPLOYEE
OF THE SHIPYARD. HE TESTIFIED THAT HE SAW SOME LWOP MEN DISTRIBUTING
CAMPAIGN LITERATURE IN WORK AREAS DURING WORK TIME. HE TOLD THIS BY
TELEPHONE TO MR. LA ROCHELLE, A LABOR-MANAGEMENT RELATIONS SPECIALISTS
OF THE ACTIVITY, AND REPORTED IT TO MR. KATSANOS, A PERSONNEL ASSISTANT.
MR. KATSANOS WENT TO THE AREA WITH MR. THOMPSON, BUT WHEN THEY ARRIVED
SIMPSON AND LIBERTY, THE TWO LWOP MEN, WERE LEAVING THE BUILDING. MR.
KATSANOS (WHO HAD BEEN PRESIDENT OF MTC BEFORE TAKING THE PERSONNEL JOB)
TESTIFIED THAT HE LATER SAW LIBERTY AND ASKED HIM ABOUT THE INCIDENT AND
LIBERTY SAID HE KNEW THE GROUND RULES AND HAD NOT PASSED OUT LITERATURE
DURING WORKING HOURS. KATSANOS TRIED TO FIND THE LITERATURE THAT
THOMPSON HAD TOLD HIM HAD BEEN PASSED OUT DURING WORKING HOURS BUT COULD
NOT FIND ANY. THOMPSON TESTIFIED THAT HE REPORTED ANOTHER SIMILAR
INCIDENT TO SECURITY GUARDS WHO DID NOTHING ABOUT IT. I FIND THAT
MANAGEMENT WAS NOT AWARE OF THE SECOND OF THESE INCIDENTS, IF IT
OCCURRED, AND WAS UNABLE TO CONFIRM THE FIRST ALTHOUGH IT TRIED.
THOMPSON TESTIFIED ALSO THAT ON ONE OCCASION WHEN HE ENTERED THE YARD
WITH MR. GUYETT TO GO TO THE CAFETERIA AREA WITH A GUARD THAT THOMPSON
WANTED TO GO ELSEWHERE IN THE SECURITY AREA TO GIVE LITERATURE TO
SOMEONE WHO CALLED TO HIM FOR IT BUT THE GUARD TOLD HIM HE WAS NOT
PERMITTED TO DO SO. HE AND GUYETT COMPLAINED ABOUT THIS SOME DAYS LATER
TO KIETA WHO SAID IT WAS A MISUNDERSTANDING BY THE GUARD BECAUSE
THOMPSON, UNLIKE GUYETT, WAS NOT REQUIRED TO HAVE A GUARD IN THE
SECURITY AREA. THERE IS NO EVIDENCE THAT SUCH INCIDENT RECURRED. I
FIND THAT THIS WAS AN ISOLATED INCIDENT OF ONE NFFE ADHERENT BEING
IMPROPERLY RESTRICTED IN HIS EFFORT TO GIVE CAMPAIGN LITERATURE TO ONE
WORKER ON ONE OCCASION AND THAT IT WAS DUE TO A MISUNDERSTANDING BY A
SECURITY GUARD.
HENRY N. SIMPSON, JOHN O. O'BRIEN, AND WILLIAM C. MOORENOVICH WERE
THREE OF THE MTC MEN ON LWOP. THEY WERE THE SECOND, THIRD, AND FOURTH
WITNESSES CALLED BY THE PETITIONER. EACH OF THEM TESTIFIED THAT HE DID
NOT ENGAGE IN ELECTIONEERING DURING WORK TIME OR IN WORK AREAS AND THE
CONDUCT THEY DESCRIBED THAT THEY DID ENGAGE IN WAS NOT IN CONTRAVENTION
OF THE GROUND RULES. WHEN LATER WITNESSES CALLED BY PETITIONER
TESTIFIED THAT ONE OR MORE OF THESE THREE DID ENGAGE IN CONDUCT IN
VIOLATION OF THE GROUND RULES COUNSEL FOR THE INTERVENOR REPEATEDLY
OBJECTED ON THE GROUND THAT THE ABOVE THREE WITNESSES HAD BEEN CALLED AS
PETITIONER WITNESSES, THAT PETITIONER WAS BOUND BY THEIR TESTIMONY, AND
THAT PETITIONER SHOULD NOT BE PERMITTED TO IMPEACH ITS OWN WITNESSES.
THE OBJECTIONS WERE CONSISTENTLY OVERRULED.
JAMES C. GUYETT IS A NATIONAL REPRESENTATIVE OF NFFE, WAS THE CHIEF
OFFICIAL OF THAT ORGANIZATION FOR THE ELECTION CAMPAIGN, AND WAS THE
ONLY NATIONAL OFFICER OF THAT ORGANIZATION ASSIGNED TO THE CAMPAIGN. HE
HAD BEEN AN EMPLOYEE OF THE SHIPYARD FOR EIGHTEEN YEARS BUT HAD LEFT
THAT EMPLOYMENT SOME TIME BEFORE THE ELECTION AND NO LONGER HAD SECURITY
CLEARANCE.
AS A NON-EMPLOYEE OF THE SHIPYARD HIS MOVEMENT INTO AND AROUND THE
YARD WERE SUBSTANTIALLY MORE LIMITED THAN THE SEVEN LWOP MENT OF MTC.
HE COULD GO TO THE SHOPS, WHICH WERE OF COURSE WITHIN SECURITY
RESTRICTIONS, BUT WAS NOT PERMITTED TO ENTER THEM. SOME OF THE
BUILDINGS HAD MORE THAN ONE ENTRANCE, AND SO BY CAMPAIGNING AT AN
ENTRANCE HE WOULD MISS EMPLOYEES WHO USED OTHER ENTRANCES. SOME OF THE
BUILDINGS HAD LUNCH AREAS CONSISTING OF VENDING MACHINES AND SPACES
AROUND THEM, BUT GUYETT DID NOT HAVE ACCESS TO SUCH AREAS. MTC NATIONAL
REPRESENTATIVES ALSO DID NOT HAVE ACCESS TO THOSE AREAS, BUT THE SEVEN
LWOP MEN DID HAVE SUCH ACCESS.
HE TESTIFIED, AND KIETA DENIED, THAT KIETA REQUIRED HIM TO HAVE AN
ESCORT EVEN TO GO INTO NON-SECURITY AREAS; I FIND THAT THE EVIDENCE
DOES NOT SUBSTANTIATE HIS CONTENTION THAT SUCH LIMITATION WAS IMPOSED ON
HIM. HE COMPLAINED TO KIETA THAT SOME MTC NATIONAL REPRESENTATIVES WERE
PERMITTED TO COME INTO THE YARD WITHOUT ESCORTS. KIETA EXPLAINED THAT
AS EXCLUSIVE BARGAINING REPRESENTATIVES MTC COULD SENT ITS MEN INTO THE
YARD WITHOUT ESCORT. THERE IS NO COMPLAINT OR EVIDENCE THAT THE MTC
NATIONAL REPRESENTATIVES WHO ENTERED THE YARD WITHOUT ESCORT ENGAGED IN
CAMPAIGNING OR IN ANYTHING OTHER THAN ACTIVITIES OF THE NORMAL
ADMINISTRATION OF THE COLLECTIVE BARGAINING. THERE IS AFFIRMATIVE
EVIDENCE, THE TESTIMONY OF MEESE, THAT THE MTC NATIONAL REPRESENTATIVES
ASSIGNED TO THE CAMPAIGN DID NOT DO ANY CAMPAIGNING WITHIN THE YARD.
THE EVIDENCE DOES NOT ESTABLISH THAT ANY MTC NATIONAL REPRESENTATIVES
ENGAGED IN ANY CAMPAIGNING WITHIN THE YARD.
MTC, AS EXCLUSIVE REPRESENTATIVE, HAD AN OFFICE IN THE YARD. IT WAS
LOCATED IN A SECURITY AREA. GUYETT REQUESTED THAT THE OFFICE BE CLOSED
ON THE DAY OF THE ELECTION, BUT THAT REQUEST WAS DENIED. THERE IS NO
EVIDENCE THAT NFFE COMPLAINED ABOUT THAT OFFICE BEING USED BY MTC DURING
THE CAMPAIGN TO FURTHER THE CAMPAIGN.
GUYETT TESTIFIED THAT HE COMPLAINED REPEATEDLY, AT LEAST SIX TIMES,
ABOUT MTC VIOLATIONS OF THE GROUND RULES. KIETA TESTIFIED, AND I FIND,
THAT NFFE ONLY TWICE MADE SPECIFIC COMPLAINTS; THE REMAINDER WERE ONLY
GENERALIZATIONS THAT THE RULES HAD BEEN VIOLATED. THE TWO SPECIFIC
COMPLAINTS ARE DESCRIBED BELOW. ON THE REMAINING COMPLAINTS, KIETA
TESTIFIED, GUYETT MADE ONLY GENERALIZATIONS THAT COULD NOT BE
INVESTIGATED, AND WHEN ASKED FOR SPECIFICS STATED TO KIETA THAT HE WOULD
GIVE THEM TO THE DEPARTMENT OF LABOR. THIS WAS NOT DENIED BY GUYETT,
AND IS PARTIALLY CONFIRMED BY GUSTAFSON, AN NFFE ADHERENT, WHO TESTIFIED
THAT WHEN HE WAS PRESENT WHEN GUYETT PROTESTED TO KIETA ABOUT ALLEGED
VIOLATIONS BY MTC, GUYETT PROTESTED ONLY IN GENERAL TERMS AND DID NOT
DESCRIBE SPECIFIC VIOLATIONS.
THE TWO SPECIFIC ALLEGED VIOLATIONS REPORTED TO KIETA BOTH INVOLVED
CHARGES THAT MTC DISTRIBUTED CAMPAIGN LITERATURE IN WORK AREAS, ONCE BY
SIMPSON AND THE OTHER BY SIMPSON AND LIBERTY. BOTH REPORTS WERE
PROMPTLY INVESTIGATED. ON THE FIRST ONE NO ONE RECALLED SEEING SIMPSON
IN THE AREA, AND THE SECOND WAS THE SAME INCIDENT TESTIFIED TO AS
DESCRIBED ABOVE BY THOMPSON. I FIND THAT IF EITHER VIOLATION OCCURRED
MANAGEMENT WAS NOT AWARE OF IT NOR DID IT CONDONE IT.
AT THE HEARING THE PETITIONER COMPLAINED REPEATEDLY OF DENIAL OF
ACCESS TO THE YARD BY ITS CHIEF COUNSEL GELLER. SINCE HE WAS NOT AN
EMPLOYEE, GELLER WAS SUBJECT TO THE GROUND RULE OF NOT-MORE-THAN-ONE
NON-EMPLOYEE REPRESENTATIVE BUT GUYETT CONCEDED THAT ON ONE OCCASION
BOTH HE AND GELLER WERE PERMITTED IN THE YARD TOGETHER.
ON NOVEMBER 5, 1972 GUYETT CALLED LA ROCHELLE AND ASKED FOR THE USE
OF THE AUDITORIUM BY HIM AND GELLER TOGETHER ON NOVEMBER 8, THE DAY
BEFORE THE ELECTION. LA ROCHELLE TOLD HIM THAT THAT WOULD MEAN THE
PRESENCE OF TWO NON-EMPLOYEES AT THE SAME TIME, AND THAT GUYETT SHOULD
CALL HIM BACK LATER THE SAME DAY FOR A FINAL ANSWER. GUYETT DID NOT
CALL BACK ON THAT MATTER UNTIL NOVEMBER 8 ABOUT 11:30 A.M. OR A FEW
MINUTES LATER, AND ASKED FOR THE USE OF THE AUDITORIUM BY HIM AND GELLER
FOR A MEETING DURING THE DAY SHIFT LUNCH PERIOD WHICH WAS 11:30 A.M. TO
12:10 P.M. LA ROCHELLE ADVISED GUYETT THAT PERMISSION WAS GIVEN FOR
BOTH GUYETT AND GELLER TO GO TO THE AUDITORIUM WITH ONE ESCORT BUT TOLD
GUYETT THAT MTC MIGHT OBJECT TO SUCH DEPARTURE FROM THE GROUND RULES.
LA ROCHELLE HAD OPENED THE AUDITORIUM AT ABOUT 11:20 A.M. LA ROCHELLE
REMAINED THERE, HE TESTIFIED, ABOUT TWENTY MINUTES, AND THE ONLY
EMPLOYEES HE SAW THERE WERE A FEW MTC OFFICERS. HE TESTIFIED THAT AFTER
HE RETURNED TO HIS OFFICE ABOUT 11:40 HE RECEIVED THE CALL FROM GUYETT.
AFTER THEIR CONVERSATION GUYETT AND GELLER WENT INTO THE YARD BUT DID
NOT GO TO THE AUDITORIUM. ROBERT HURLEY, ANOTHER LABOR-MANAGEMENT
RELATIONS SPECIALIST, TESTIFIED THAT HE WAS IN THE AUDITORIUM FROM 11:15
A.M. TO 12:15 P.M., AFTER THE LUNCH PERIOD EXPIRED, AND THE ONLY PEOPLE
HE SAW THERE WERE SOME MTC REPRESENTATIVES.
GUYETT TESTIFIED THAT THE MEETING IN THE AUDITORIUM TO BE ADDRESSED
BY HIM AND GELLER HAD BEEN PLANNED ON NOVEMBER 5 AND NOTICE OF IT PASSED
AROUND BY WORK OF MOUTH AND BY ANNOUNCEMENTS IN THE CAFETERIAS AND
ELSEWHERE. (ABOUT 25% OF THE EMPLOYEES EAT IN THE CAFETERIA). THERE
WERE NO HANDBILLS OR NOTICES ON THE BULLETIN BOARDS ANNOUNCING THE
MEETING GUYETT SAID HAD BEEN PLANNED AND WORD OF WHICH HAD BEEN
CIRCULATED BY ORAL COMMUNICATION. GUYETT TESTIFIED THAT AFTER HIS
TELEPHONE CONVERSATION WITH LA ROCHELLE SOMETIME BETWEEN 11:30 A.M. AND
SHORTLY BEFORE NOON HE SENT TWO MEN TO THE AUDITORIUM TO TELL THOSE WHO
HAD COME FOR THE MEETING THAT HE AND GELLER WOULD NOT BE APPEARING.
THERE IS NO EVIDENCE THAT ANY EMPLOYEE OTHER THAN A FEW MTC OFFICERS
WERE AT THE AUDITORIUM FOR THE MEETING GUYETT TESTIFIED HAD BEEN PLANNED
AND WORD OF WHICH HAD BEEN CIRCULATED.
IN ITS BRIEF, THE ACTIVITY ARGUES THAT GUYETT'S TESTIMONY OF THE
PLANNED MEETING WHICH WAS FRUSTRATED WAS A FABRICATION DESIGNED TO
CREATE A BASIS FOR AN OBJECTION TO THE ELECTION IF PETITIONER LOST. IT
IS UNNECESSARY TO DECIDE WHETHER THE MEETING WAS IN FACT PLANNED AND
ANNOUNCED AND THEN CALLED OFF. IF SUCH ARE THE FACTS THE FRUSTRATION OF
THE MEETING CANNOT BE ATTRIBUTED TO ANY MISCONDUCT OF THE ACTIVITY OR
MTC. THE ACTIVITY DID GIVE PERMISSION TO HOLD THE MEETING WITH BOTH
GUYETT AND GELLER PRESENT. THAT IT WAS NOT GIVEN PROMPTLY WHEN ASKED
FOR ON NOVEMBER 5 IS WITHOUT SIGNIFICANCE; IT WOULD HAVE BEEN AT LEAST
SUPERFICIALLY A VIOLATION OF THE GROUND RULES (THE AUDITORIUM WAS IN A
SECURITY AREA) AND LA ROCHELLE'S REQUEST THAT GUYETT CALL HIM BACK LATER
THAT DAY FOR A FINAL ANSWER WAS REASONABLE. GUYETT DID NOT CALL BACK
UNTIL THE MEETING WAS SUPPOSED TO HAVE BEGUN, AND WAS PROMPTLY GIVEN
PERMISSION. THE FACT THAT LA ROCHELLE ADDED A CAUTION THAT MTC MIGHT
OBJECT WAS SIMPLY GRATUITOUS ADVICE NOT ENTIRELY WITHOUT BASIS. AND
EVEN IF THE GRATUITOUS ADVICE WAS UNSOUND OR UNWISE, AND EVEN IF THAT
WAS THE CAUSE OF CALLING OFF THE MEETING, THAT WAS SO LATE, AND THE
PLANNING AND NOTICE OF THE MEETING SO POORLY ARRANGED, THAT THE
DELETERIOUS EFFECT MUST HAVE BEEN DE MINIMIS IF THERE WAS ANY AT ALL.
IN ADDITION TO KIETA'S TESTIMONY REFERRED TO BELOW, HE TESTIFIED, AND
I FIND, THAT HE DID NOT RECEIVE ANY COMPLAINTS OR REPORTS THAT ANY MTC
NON-EMPLOYEE REPRESENTATIVES WERE IN A SECURITY AREA WITHOUT AN ESCORT,
CONFIRMING MEESE'S TESTIMONY THAT NONE OF THE MTC NON-EMPLOYEE
REPRESENTATIVES CAMPAIGNED IN THE SHIPYARD, OR THAT MTC REPRESENTATIVES
OTHERWISE VIOLATED THE GROUND RULES. HE TESTIFIED ALSO THAT HE DID NOT
DENY ANY NFFE REPRESENTATIVE ACCESS TO A NON-SECURITY AREA, AND SINCE
THERE IS NO EVIDENCE TO THE CONTRARY I SO FIND. GUYETT AND PROVOST,
ANOTHER NON-EMPLOYEE REPRESENTATIVE, WERE FREQUENTLY IN THE YARD AT THE
SAME TIME, WHICH WAS INCONSISTENT WITH THE GROUND RULES SO LONG AS THEY
WERE IN NON-SECURITY AREAS. KIETA TESTIFIED ALSO TO SOME ALLEGED
VIOLATIONS OF THE GROUND RULES BY NFFE, SOME OF WHICH WERE CONFIRMED,
BUT KIETA DID NOT AS A CONSEQUENCE TERMINATE NFFE'S ACCESS TO THE YARD
BECAUSE HE THOUGHT THOSE VIOLATIONS NOT OF SUFFICIENT IMPORTANCE TO
INVOKE SUCH SANCTION. HIS OVERALL IMPARTIALITY, OR LACK OF BIAS AGAINST
NFFE OR IN FAVOR OF MTC IN HIS TREATMENT OF THEM, IS THUS CONFIRMED.
WHATEVER ADVANTAGE MTC ENJOYED DURING THE CAMPAIGN, IT RESULTED NOT FROM
DISPARATE TREATMENT OR MISCONDUCT BUT FROM THE GREATER ABILITY OR
WILLINGNESS OF MTC TO TAKE ADVANTAGE OF THE OPPORTUNITIES AVAILABLE TO
BOTH CONTESTANTS AND PERHAPS TO A SLIGHT EXTENT TO THE NATURAL ADVANTAGE
OF BEING THE INCUMBENT. /8/
OBJECTION #4, THE SOLE SUBJECT FOR WHICH THE HEARING WAS DESIGNATED
BY THE REGIONAL ADMINISTRATOR, CHARGED THAT TOP MANAGEMENT OFFICIALS OF
THE ACTIVITY WERE AWARE THAT DURING THE ELECTION CAMPAIGN SEVERAL
EMPLOYEES OF THE SHIPYARD TOOK LEAVE WITHOUT PAY TO DEVOTE FULL TIME TO
THE MTC CAMPAIGN IN THE SHIPYARD AND CONDUCTED A "FULL-SCALE CAMPAIGN"
DURING WORKING HOURS IN THE YARD'S INDUSTRIAL AREAS. ON THE SURFACE,
THE BARE BONES OF SUCH CHARGE ALLEGE NO INHERENT IMPROPRIETY ON THE PART
OF THE ACTIVITY OR THE INTERVENOR. AT THE HEARING AND IN ITS BRIEF, THE
PETITIONER ARGUED THAT SUCH CONDUCT BY MTC AND KNOWLEDGE OF IT BY THE
ACTIVITY, AND THE TREATMENT BY THE ACTIVITY OF THE LWOP MEN OTHER THAN
AS NON-EMPLOYEE REPRESENTATIVES OF THE INTERVENOR WHILE IMPOSING GREATER
RESTRICTIONS ON THE ACTIVITIES OF NON-EMPLOYEE REPRESENTATIVES OF THE
PETITIONER, CONSTITUTES DISPARATE TREATMENT OF THE CONTESTANTS IN
VIOLATION OF SECTION 19(A)(3) OF EXECUTIVE ORDER 11491 AND ARGUES THAT
IT THEREBY VITIATES THE ELECTION WHICH RESULTED IN A VOTE OF A MAJORITY
OF THE VOTERS IN FAVOR OF THE INCUMBENT INTERVENOR. SUCH ARGUMENT IS
HERE CONSIDERED AS MERELY FLESHING OUT THE BARE BONES OF THE CHARGE AND
AS INCLUDED WITHIN THE CHARGE. WE SHOULD NOT HOLD COMPLAINTS UNDER THE
EXECUTIVE ORDER, WHICH EXPECTEDLY ARE OFTEN FRAMED BY LAYMEN, TO THE
STRICTISSIMI JURIS OF AN ENGLISH STRICT SETTLEMENT.
IDEALLY, OF COURSE, IT WOULD BE DESIRABLE FOR ELECTIONS TO BE
CONDUCTED UNDER THE SEPTIC CONDITIONS OF A METICULOUSLY CONDUCTED
LABORATORY EXPERIMENT TO DETERMINE THE "FREE AND UNTRAMMELED CHOICE" OF
THE EMPLOYEES FOR A BARGAINING REPRESENTATIVE. /9/ OF COURSE, WHEN A
RECORD SHOWS CONDUCT "SO GLARING THAT IT IS ALMOST CERTAIN TO HAVE
IMPAIRED EMPLOYEES' FREEDOM OF CHOICE", /10/ THE ELECTION SHOULD BE SET
ASIDE, WHETHER CONDUCTED UNDER THE EXECUTIVE ORDER OR COMPARABLE LABOR
LEGISLATION. WITHOUT LOSING SIGHT OF THE IDEAL, THE PRACTICALITIES OF
ADMINISTRATION IN REGULATING HUMAN CONDUCT INHIBIT INSISTENCE ON
ACHIEVING THE IDEA IN EVERY ELECTION CONDUCTED BY THE DEPARTMENT. FOR
THE PURPOSES OF THE PRESENT CASE, IT IS ENOUGH TO SUSTAIN THE ELECTION
TO HOLD THAT IT WILL NOT BE SET ASIDE IN THE ABSENCE OF DISCERNIBLE
BIASSED CONDUCT BY THE ACTIVITY.
A SUBSTANTIAL BODY OF LAW HAS EVOLVED IN THE PRIVATE SECTOR
CONCERNING THE VALIDITY OF ELECTIONS OVER THE YEARS OF ADMINISTRATION OF
LEGISLATION PROTECTING THE RIGHT OF COLLECTIVE BARGAINING. THERE ARE
ONLY A FEW SUCH DECISIONS UNDER THE EXECUTIVE ORDER, BUT THE ASSISTANT
SECRETARY HAS SAID THAT NO LESS RIGOROUS STANDARDS FOR THE CONDUCT OF
ELECTIONS AMONG FEDERAL EMPLOYEES SHOULD BE APPLIED THAN IN THE PRIVATE
SECTOR. /11/
BUT WHATEVER THE STANDARDS, IT SHOULD BE BORNE IN MIND THAT THE
PURPOSE OF SUCH STANDARDS AND THEIR APPLICATION IS TO PRESERVE THE
INTEGRITY OF THE EMPLOYEES' EXPRESSION OF THEIR CHOICE OF
REPRESENTATIVE. THE PURPOSE OF AN INQUIRY INTO THE CONDUCT OF AN
ELECTION IS NOT SIMPLY TO DETERMINE WHETHER THERE HAVE BEEN TECHNICAL
VIOLATIONS OF RULES, BUT TO DETERMINE WHETHER THERE IS SUBSTANTIAL RISK
THAT THE EMPLOYEES' EXPRESSION OF THEIR CHOICE OF REPRESENTATION HAS
BEEN UNFAIRLY INFLUENCED BY MISCONDUCT. AND THE OBJECTING PARTY HAS THE
BURDEN OF PROOF CONCERNING THE MATTERS ALLEGED TO HAVE IMPROPERLY
AFFECTED THE RESULTS OF THE ELECTION. 29 C.F.R. 202.20(D). A SHOWING
OF A MERE DEVIATION FROM THE RULES, WITHOUT MORE, DOES NOT SUSTAIN THAT
BURDEN OF PROOF SUFFICIENT TO WARRANT SETTING ASIDE AN ELECTION. /12/
WE HAVE SEEN ABOVE THAT, WITH A TRIVIAL EXCEPTION DISCUSSED BELOW,
THERE IS NO CORROBORATED INSTANCE OF DEPARTURE FROM THE GROUND RULES BY
THE MTC OR THE ACTIVITY, WHILE THERE WERE INSTANCES OF VIOLATIONS BY
PETITIONER, CONFIRMED BY KIETA, CONCERNING WHICH HE TOOK NO ACTION
BECAUSE HE CONSIDERED THEM OF NO MOMENT. IN THE PRIVATE SECTOR, WHERE
THE INCUMBENT UNION VIOLATED THE ELECTION RULES AND THE OBJECTING
PETITIONER ALSO VIOLATED THE RULES BUT LESS EXTENSIVELY, AND THE
EMPLOYER STOPPED ALL VIOLATIONS OF WHICH IT WAS AWARE, THE ELECTION WAS
SUSTAINED ON THE GROUND THAT THE RULES HAD NOT BEEN DISCRIMINATORILY
APPLIED. /13/ IN THIS CASE WE HAVE NO VERIFIED VIOLATIONS OF THE RULES
BY MTC OF WHICH THE ACTIVITY WAS AWARE, AND HENCE NO DISCRIMINATORY
APPLICATION OF THE RULES.
THERE WAS ONE ISOLATED INCIDENT OF AN NFFE ADHERENT, THOMPSON, WHO
WAS AN EMPLOYEE OF THE SHIPYARD, BEING STOPPED BY A SECURITY GUARD FROM
LEAVING THE GUARD TO GIVE CAMPAIGN LITERATURE TO AN EMPLOYEE WHO ASKED
FOR IT. THOMPSON WAS ACCOMPANYING GUYETT TO A SECURITY AREA AND THUS
HAD A GUARD WITH HIM BECAUSE GUYETT COULD GO TO A SECURITY AREA ONLY
WITH A GUARD. THIS ISOLATED INCIDENT WAS DUE SIMPLY TO A
MISUNDERSTANDING BY THE GUARD. SUCH AN ISOLATED INCIDENT, INNOCENT IN
PURPOSE AND NOT SHOWN TO HAVE HAD ANY EFFECT ON THE ELECTION, CANNOT BE
THE BASIS FOR UPSETTING AN ELECTION UNLESS SUBSTANCE IS TO BE IGNORED.
IN THE PRIVATE SECTOR, WHERE THE EMPLOYER BARRED AN EMPLOYEE, WHO WAS A
KEY ORGANIZER FOR THE OUTSIDE UNION, FROM THE COMPANY'S PREMISES WHILE
HE WAS OFF DUTY ALTHOUGH PERMITTING A NON-EMPLOYEE REPRESENTATIVE OF THE
INCUMBENT UNION TO ELECTIONEER ON COMPANY PROPERTY, THE NATIONAL LABOR
RELATIONS BOARD REFUSED TO SET ASIDE THE ELECTION BECAUSE "WE DO NOT
BELIEVE THIS SINGLE LIMITATION ON THE TEAMSTER'S CAMPAIGN PREVENTED THE
EMPLOYEE FROM RECEIVING AN ADEQUATE PRESENTATION OF THE TEAMSTERS'
POSITION AND ARRIVING AT A TRUE AND UNCOERCED EXPRESSION OF THEIR
CHOICE." /14/ A FORTIORI, THIS ISOLATED INCIDENT DID NOT PREVENT THE
EMPLOYEES FROM ARRIVING AT A TRUE AND UNCOERCED EXPRESSION OF THEIR
CHOICE.
THE GRAVAMEN OF PETITIONER'S OBJECTION IS THE ACTIVITY'S TREATMENT OF
THE SEVEN MTC LWOP MEN IN CONTRAST TO THE RESTRICTIONS IT IMPOSED ON
NON-EMPLOYEE REPRESENTATIVES OF NFFE.
THERE WAS NOTHING DISPARATE OR OTHERWISE IMPROPER IN THE ACTIVITY
GRANTING LWOP STATUS TO THOSE SEVEN EMPLOYEES. INDEED, TO HAVE DENIED
IT TO THEM WOULD PROBABLY HAVE BEEN A VIOLATION OF THE COLLECTIVE
BARGAINING AGREEMENT. THAT AGREEMENT PROVIDED THAT SUCH LEAVE WOULD BE
GRANTED AN EMPLOYEE UPON HIS REQUEST UNLESS IT WOULD UNDULY INTERRUPT
THE YARD'S WORK SCHEDULE. THERE IS NO INDICATION THE LEAVE SHOULD HAVE
BEEN DENIED FOR SUCH REASON. NOR WAS SUCH GRANT DISPARATE TREATMENT.
NO NFFE ADHERENT ASKED FOR SUCH LEAVE, AND I HAVE FOUND THAT THEY WERE
NOT INHIBITED BY THE ACTIVITY FROM DOING SO AND THAT IF THEY HAD
REQUESTED IT THEIR REQUEST WOULD HAVE BEEN GRANTED.
NOR WAS THERE ANYTHING IMPROPER IN THE ACTIVITY TREATING THE LWOP MEN
AS EMPLOYEES, WITH FREEDOM OF THE SHIPYARD, DURING THEIR TEMPORARY LEAVE
WITHOUT PAY WHILE IMPOSING RESTRICTIONS ON NON-EMPLOYEE REPRESENTATIVES
OF NFFE. WHILE SUCH TREATMENT WAS DISPARATE, THE DISPARITY WAS BASED ON
SOLID DIFFERENCES IN STATUS. THE FUNCTION OF THE SHIPYARD, THE REPAIR
AND OVERHAULING OF ATOMIC SUBMARINE, WAS OBVIOUSLY HIGHLY SENSITIVE FROM
A SECURITY POINT OF VIEW. THE SEVEN LWOP MEN HAD SECURITY CLEARANCE.
IT WAS THE PRACTICE OF THE SHIPYARD TO PERMIT EMPLOYEES WHO TOOK LWOP
FOR LESS THAN NINETY DAYS TO RETAIN THEIR SECURITY BADGES AND TO HAVE
ACCESS TO THE YARD FOR LEGITIMATE PURPOSES. CAMPAIGNING, SO LONG AS
WITHIN THE GROUND RULES, WAS A LEGITIMATE PURPOSE. I HAVE FOUND NO
CREDITABLE EVIDENCE THAT THE CAMPAIGNING OF THE LWOP MEN TRANSGRESSED
THE GROUND RULES, AND MUCH OF THEIR TIME WAS NOT SPENT IN CAMPAIGNING IN
THE SHIPYARD. INDEED, TO HAVE DENIED THE LWOP MEN THEIR USUAL ACCESS TO
THE SHIPYARD MIGHT WELL HAVE BEEN DISPARATE TREATMENT ADVERSE TO THEM
AND MTC. THE ASSISTANT SECRETARY HAS HELD, IN ACCORD WITH COURT
DECISIONS IN THE PRIVATE SECTOR, THAT WHERE CAMPAIGNING ON NON-WORK TIME
WOULD NOT INTERFERE WITH PRODUCTION, IT MAY NOT BE PROHIBITED. /15/ HAD
NFFE ADHERENTS WHO WERE EMPLOYEES SOUGHT LWOP, THEY WOULD HAVE HAD THE
SAME PRIVILEGES. NON-EMPLOYEES, ON THE OTHER HAND, WERE REASONABLY
RESTRICTED IN THEIR MOVEMENTS IN THIS SENSITIVE AREA.
THERE IS A PLETHORA OF CASES IN THE PRIVATE SECTOR TO THE EFFECT THAT
AN ELECTION WILL NOT BE SET ASIDE UPON THE BASIS OF AN EMPLOYER'S
NON-DISCRIMINATORY APPLICATION OF REASONABLE GROUND RULES, ALTHOUGH SUCH
APPLICATION MAY HAVE ADVERSELY AFFECTED ONE OF THE CONTESTANTS, AS HERE.
THE ASSISTANT SECRETARY HAS CONCURRED IN SUCH PRINCIPLE. /16/ LET US
LOOK AT A COUPLE OF HLRB ON THIS POINT.
IN ELECTRIC AUTO-LITE CO., 89 NLRB 1407, 26 LRRM 1126, (1950), THE
BOARD HELD THAT PERMITTING THE PETITIONER TO HAVE SOME OF ITS ADHERENTS
TAKE TIME OFF TO CAMPAIGN AND TO TRANSPORT EMPLOYEES TO THE POLLS WAS
NOT IMPROPER IF THE SAME PRIVILEGE WAS NOT DENIED TO THE COMPETING
UNION. IN LAPOINTE MACHINE TOOL CO., 113 NLRB 171, 173, 36 LRRM
1273(1955), THE BOARD SAID THAT IT HAD "CONSISTENTLY HELD" THAT
PERMITTING ONE UNION TO SOLICIT ON COMPANY PROPERTY AND ON COMPANY TIME
WAS NOT INTERFERENCE WITH AN ELECTION WHERE THERE WAS NO SHOWING THAT
THE COMPETING UNION HAD REQUESTED AND BEEN DENIED THE SAME PRIVILEGE.
SUCH CONCLUSIONS ARE SOUND AND SHOULD BE APPLIED IN THE FEDERAL SECTOR.
WHERE THERE IS NO DISPARITY OF TREATMENT OR PURPOSE, AND NONE HAS BEEN
SHOWN HERE, AN ELECTION SHOULD NOT BE SET ASIDE BECAUSE OF DISPARITY IN
EFFECT BECAUSE THE COMPETING UNION COULD NOT OR DID NOT AVAIL ITSELF OF
NON-DISCRIMINATORY GROUND RULES OR EMPLOYEE PRIVILEGES.
WE HAVE SEEN THAT THERE WAS NO CREDITABLE SHOWING OF MTC VIOLATIONS
OF THE GROUND RULES AND OF COURSE NO SHOWING THAT THE ACTIVITY CONDONED
ANY THAT OCCURRED. PETITIONER'S OBJECTION #4 DOES NOT IN SUBSTANCE
GROUND THE OBJECTION ON MTC'S MISCONDUCT BUT ONLY ON THE ACTIVITY'S
DISPARATE TREATMENT OF THE CONTESTANTS. BUT AN EMPLOYER IS NOT GUILTY
OF DISPARATE TREATMENT OR OF CONDONING VIOLATIONS OF GROUND RULES WHEN
IT DOES NOT KNOW OF SUCH VIOLATIONS. IN SUPERIOR SLEEPRITE CORP., 117
NLRB 430, 39 LRRM 1264 (1957), THE BOARD HELD THAT MEETINGS HELD BY THE
INTERVENOR ON COMPANY PROPERTY WERE NOT IMPROPER INTERFERENCE WITH AN
ELECTION WHEN THE EMPLOYER DID NOT KNOW ABOUT THEM AND DID NOT DENY THE
PETITIONER THE OPPORTUNITY TO HOLD SUCH MEETINGS. IN EASTERN METAL
PRODUCTS, 114 NLRB 239 36 LRRM 1546 (1955) AN EMPLOYER-PRESCRIBED GROUND
RULE PROHIBITED CAMPAIGNING ON COMPANY PROPERTY DURING WORKING HOURS.
THE PREVAILING UNION VIOLATED THAT RULE. AN OBJECTION TO THE ELECTION
WAS OVERRULED IN THE ABSENCE OF A SHOWING THAT THE EMPLOYER KNEW OF THE
VIOLATIONS. AND IN FISCHER RADIO CORP., 123 NLRB 879, 881, 44 LRRM 1015
(1959), THE PREVAILING UNION POSTED A SIGN INSIDE THE PLANT IN VIOLATION
OF THE EMPLOYER'S ELECTIONEERING RULE. THIS WAS NOT AUTHORIZED BY THE
EMPLOYER AND WAS REMOVED BY THE EMPLOYER WHEN IT LEARNED OF THE PRESENCE
OF THE SIGN. IT WAS HELD THAT THE ELECTION SHOULD NOT BE SET ASIDE.
ALTHOUGH THESE PRECEDENTS ARE NOT BINDING, THE GENERAL PRINCIPLE TO
BE DEDUCED FROM THEM IS SALUTORY AND REALISTIC. NOT EVERY VIOLATION OF
THE RULES BY THE PREVAILING UNION, NOT AMOUNTING TO FRAUD OR COERCION,
IS GROUNDS FOR SETTING ASIDE AN ELECTION IF UNKNOWN TO THE EMPLOYER.
THE INTERVENOR ARGUES THAT THE ACTIVITY HAD THE OBLIGATION TO POLICE THE
GROUND RULES. IT DOES NOT SAY WHENCE THIS OBLIGATION AROSE. NOR DOES
THE ASSISTANT SECRETARY HAVE SUCH OBLIGATION. /17/ FURTHERMORE, IN THIS
CASE, WITH THE EXCEPTION TWO ALLEGED VIOLATIONS THAT WERE NOT CONFIRMED,
THE PETITIONER COMPLAINED TO THE ACTIVITY OF ALLEGED VIOLATIONS ONLY IN
GENERAL TERMS AND REFUSED TO BE SPECIFIC, STATING THAT IT WOULD GIVE THE
FACTS TO THE DEPARTMENT OF LABOR IF IT LOST THE ELECTION. THIS OF
COURSE WAS BEFORE THE ELECTION, WHEN THE ACTIVITY COULD STILL HAVE TAKEN
REMEDIAL ACTION IF THE VIOLATIONS HAD BEEN ESTABLISHED. EVEN IF THESE
ADDITIONAL ALLEGED VIOLATIONS HAD BEEN ESTABLISHED AT THE HEARING, THEY
WERE NOT KNOWN TO THE ACTIVITY AND PETITIONER'S ATTITUDE OF HEADS I WIN
AND TAILS I GET ANOTHER CHANCE TO WIN SHOULD NOT BE ENCOURAGED.
IN CONCLUSIONS, THE PETITIONER HAS NOT MET ITS BURDEN OF ESTABLISHING
THE MATTERS CONSTITUTING THE GROUNDS OF ITS OBJECTION.
THE OBJECTION SHOULD BE OVERRULED, THE ELECTION CONFIRMED, AND THE
METAL TRADES COUNCIL CERTIFIED AS THE CONTINUING CHOICE OF THE MAJORITY
OF THE EMPLOYEES INVOLVED.
DATED, WASHINGTON, D.C.
SEPTEMBER 11, 1972
/1/ THE RECOUNT DID NOT DIFFER FROM THE ORIGINAL TALLY OF BALLOTS IN
ANY MATERIAL RESPECT.
/2/ THE PETITIONER FOR THE ELECTION AND IN THIS PROCEEDING.
/3/ THE METAL TRADES COUNCIL WAS THE INCUMBENT REPRESENTATIVE AND IS
THE INTERVENOR IN THIS PROCEEDING.
/4/ EXH. A-7, ART. XVI, SEC. 1.
/5/ EXH. A-7, ART. VII, SEC. 3.
/6/ THE RECORD DOES NOT SHOW WHEN THESE LEAVE REQUESTS WERE GRANTED,
BUT IT MUST HAVE BEEN BEFORE OCTOBER 21, 1971, THE DATE OF KIETA'S
LETTER ON THE SUBJECT TO THE PRESIDENTS OF THE COMPETING ORGANIZATIONS.
THAT LETTER WAS WRITTEN A WEEK BEFORE THE LEAVE PERIODS BEGAN.
/7/ THERE WERE NO OFFICIAL COFFEE BREAKS BUT THE MEN WERE PERMITTED
TO TAKE THEM; HENCE, COFFEE BREAKS WERE OFFICIALLY ON-DUTY TIME.
/8/ CF. WESTINGHOUSE ELECTRIC CORP., 91 NLRB NO. 150, 26 LRRM 1602,
1604-5 (1950).
/9/ CF. GENERAL SHOE CORPORATION, 77 NLRB 124 (1948).
/10/ IDEM, AT 126
/11/ NORFOLK NAVAL SHIPYARD, A/SLMR NO. 31 (1971).
/12/ U.S. ARMY TRANSPORTATION CENTER, A/SLMR NO. 157 (1972), A CASE
IN WHICH THE RESULT OF THE VOTING WAS FAR CLOSER THAN IN THIS CASE.
/13/ WESTERN ELECTRIC COMPANY, INC., 87 NLRB 183, 25 LRRM 1099
(1949).
/14/ G&H TOWING CO., 168 NLRB 589, 66 LRRM 1343, 1346 (1967).
/15/ CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, (1970).
/16/ NORFOLK NAVAL SHIPYARD, A/SLMR NO. 31, (1971).
/17/ REPORT NO. 20, A/SLMR, (1970); ARMY AND AIR FORCE EXCHANGE
SERVICE, A/SLMR NO. 144, FN. 8, (1972).
3 A/SLMR 240; P. 42; CASE NOS. 22-2635(RO), 22-2692(RO); JANUARY
15, 1973.
VETERANS ADMINISTRATION
A/SLMR NO. 240
THIS CASE INVOLVED REPRESENTATION PETITIONS FILED BY THE COUNCIL OF
AFGE VETERANS ADMINISTRATION LOCALS AND OTHER AFL-CIO AFFILIATES (THE
COUNCIL), AND THE AMERICAN NURSES ASSOCIATION (NURSES). THE NATIONAL
ALLIANCE OF POSTAL AND FEDERAL EMPLOYEES (NAPFE); NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (NFFE); VETERANS ADMINISTRATION AND INDEPENDENT
SERVICE EMPLOYEES UNION; NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(NAGE) AND THE NURSES IN THE PETITION FILED BY THE COUNCIL. THE COUNCIL
AND THE NFFE INTERVENED IN THE PETITION FILED BY THE NURSES. THE
COUNCIL SOUGHT A UNIT WHICH ENCOMPASSED ALL OF THE ACTIVITY'S EMPLOYEES,
INCLUDING PROFESSIONALS, WHEREAS THE NURSES PETITION, AS AMENDED, SOUGHT
A UNIT WHICH CONSISTED OF ALL PROFESSIONAL REGISTERED NURSES EMPLOYED IN
THE DEPARTMENT OF MEDICINE AND SURGERY OF THE ACTIVITY.
THE COUNCIL CONTENDED THAT THE TWO-PHASE HEARING PROCEDURE ADOPTED
FOR THIS CASE, WHICH WOULD FIRST INVOLVE A CONSIDERATION OF THE ADEQUACY
OF THE PETITIONERS' SHOWING OF INTEREST AND THEN A CONSIDERATION OF THE
APPROPRIATENESS OF THE UNITS SOUGHT, WAS ERRONEOUS BECAUSE ONLY BY A
FULL UNIT DETERMINATION HEARING COULD A PROPER DETERMINATION BE REACHED
BY THE ASSISTANT SECRETARY. THE COUNCIL, THEREFORE, REQUESTED THAT THE
CASE BE REMANDED. MOREOVER, THE COUNCIL ALLEGED THAT IT WAS IMPROPER TO
MAKE DETERMINATION WITH RESPECT TO POSSIBLE PROCEDURAL BARS WITHOUT
LITIGATING THE UNIT QUESTION. THE COUNCIL ALSO ARGUED THAT FOR PURPOSES
OF NATIONAL EXCLUSIVE RECOGNITION, THE ASSISTANT SECRETARY'S DECISIONS
CONCERNING LESS COMPREHENSIVE UNITS SHOULD NOT BE APPLIED.
THE NURSES CONTENDED THAT THE TWO-PHASE HEARING PROCEDURE WAS
IMPROPER, AND THAT BECAUSE OF THE RESTRICTIONS IMPOSED ON ITS
CROSS-EXAMINATION BY THE HEARING OFFICER, THE CASE SHOULD BE REMANDED
FOR FURTHER HEARING. THE NURSES ALSO CONTENDED THAT THE AGREEMENTS
PLACED IN EVIDENCE BY THE ACTIVITY WOULD NOT CONSTITUTE BARS TO ITS
PETITION BECAUSE OF VARIOUS DEFECTS AND, THEREFORE, THOSE PREVIOUSLY
COVERED UNITS COULD BE INCLUDED FOR PURPOSES OF SHOWING OF INTEREST.
THE ACTIVITY CONTENDED THAT THE RATIONALE OF THE U.S. DEPARTMENT OF
DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, A/SLMR NO. 110, WHICH HELD THAT
A NEGOTIATED AGREEMENT MAY NOT BE WAIVED UNILATERALLY BY ONE OF THE
PARTIES, SHOULD BE APPLIED IN THESE CASES. IT ASSERTED THAT IT DOES NOT
WAIVE ITS AGREEMENTS WITH THE CONSTITUENTS OF THE COUNCIL OR THE NURSES.
IN THESE CIRCUMSTANCES, THE ACTIVITY CONTENDED THAT THE SHOWING OF
INTEREST IN THIS MATTER BE RECOMPUTED IN VIEW OF THE FACT THAT THE
REMOVAL OF ALL EMPLOYEES EXCLUDED BY THE ASSERTED BARS WOULD CAUSE SUCH
SHOWING TO FALL SHORT OF THE 30 PERCENT REQUIREMENTS IN THE UNIT WHICH
WOULD REMAIN AFTER REMOVING ALL EMPLOYEES EXCLUDED BY THE ASSERTED BARS.
THE ASSISTANT SECRETARY CONCLUDED THAT BOTH PETITIONS SHOULD BE
DISMISSED, AND IN SO DOING SET FORTH THE FOLLOWING PRINCIPLES:
A. THE AGREEMENT BAR PRINCIPLES AS SET FORTH IN SECTION 202.3(C) OF
THE ASSISTANT SECRETARY'S REGULATIONS WILL BE DEEMED APPLICABLE
IRRESPECTIVE OF WHETHER THE UNIT SOUGHT IS NATIONWIDE IN SCOPE. THUS,
WHERE A PETITION FOR A BROAD UNIT SEEKS TO INCLUDE EMPLOYEES WHO ARE
ALREADY REPRESENTED EXCLUSIVELY IN EXISTING LESS COMPREHENSIVE UNITS AND
WHO ARE COVERED BY EXISTING NEGOTIATED AGREEMENTS, ABSENT UNUSUAL
CIRCUMSTANCES, THE ASSISTANT SECRETARY WILL NOT PERMIT THOSE UNITS
COVERED BY NEGOTIATED AGREEMENTS TO BE INCLUDED IN THE BROAD PETITIONED
FOR UNIT. MOREOVER, A PETITIONING LABOR ORGANIZATION MAY NOT UTILIZE IN
ITS SHOWING OF INTEREST FOR A BROAD UNIT, EMPLOYEES IN AN EXISTING UNIT
COVERED BY A SIGNED AGREEMENT WHICH CONSTITUTES A BAR TO AN ELECTION.
B. WHERE AN AGREEMENT BAR EXISTS, SUCH BAR MAY NOT BE WAIVED
UNILATERALLY. IN THE ABSENCE OF A MUTUAL WAIVER OF AN AGREEMENT BAR, A
PETITIONING LABOR ORGANIZATION MAY NOT UTILIZE A SHOWING OF INTEREST
FROM A UNIT IN WHICH THE BAR EXISTS.
C. WHERE A PETITIONER SEEKS A UNIT WHICH ENCOMPASSES A UNIT OR UNITS
IN WHICH IT ALREADY HOLDS EXCLUSIVE RECOGNITION (BUT NO NEGOTIATED
AGREEMENT EXISTS), IN ORDER TO PERMIT THE EMPLOYEES IN SUCH UNIT OR
UNITS TO BE COUNTED FOR PURPOSES OF THE PETITIONER'S SHOWING OF
INTEREST, THE PETITIONER WILL BE REQUIRED TO WAIVE ITS EXCLUSIVE
RECOGNITION STATUS IN SUCH UNIT OR UNITS AND AGREE, IN EFFECT, TO RISK
THAT RECOGNITION IN THE EVENT THAT IT PROCEEDS TO AN ELECTION IN THE
BROAD UNIT AND LOSSES.
D. WHERE THERE ARE AGREEMENTS WHICH ARE TERMINABLE AT WILL OR WHICH
CONTAIN OTHER DEFECTS CAUSING SUCH AGREEMENTS NOT TO CONSTITUTE BARS TO
AN ELECTION SOUGHT BY A THIRD PARTY, THE ASSISTANT SECRETARY FOUND THAT
THE PARTIES TO SUCH AGREEMENTS ARE BOUND BY THEIR TERMS ABSENT AN
AFFIRMATIVE ACT OF TERMINATION. IN THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY CONCLUDED THAT IN ORDER TO UTILIZE EMPLOYEE MEMBERS COVERED BY
SUCH AN AGREEMENT FOR THE PURPOSE OF SHOWING OF INTEREST, A LABOR
ORGANIZATION WHICH IS PARTY TO AN AGREEMENT MUST AFFIRMATIVELY INDICATE
A WILLINGNESS (1) TO TERMINATE THAT AGREEMENT PRIOR TO THE ELECTION, AND
(2) TO WAIVE ITS EXCLUSIVE RECOGNITION STATUS AND, IN EFFECT, PUT SUCH
STATUS "ON THE LINE" AT THE ELECTION.
BASED ON THE PRINCIPLES SET FORTH ABOVE, THE ASSISTANT SECRETARY
FOUND THAT NEITHER OF THE PETITIONERS SUPPORTED THEIR PETITIONS WITH AN
ADEQUATE SHOWING OF INTEREST. ACCORDINGLY, AS THE SHOWING OF INTEREST
IN EACH OF THE SUBJECT CASES WAS INADEQUATE WITH RESPECT TO ANY RESIDUAL
UNIT HEREIN NOT SUBJECT TO PROCEDURAL BARS, THE ASSISTANT SECRETARY
ORDERED THAT THE COUNCIL'S AND THE NURSES' PETITION BE DISMISSED.
VETERANS ADMINISTRATION
AND
COUNCIL OF AFGE VETERANS
ADMINISTRATION LOCALS AND OTHER
AFL-CIO AFFILIATES, CARPENTERS
AND JOINERS OF AMERICA (CJA);
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS (IBEW); INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS (IAFF);
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA (LIUNA); SERVICE
EMPLOYEES INTERNATIONAL UNION (SEIU)
AND
NATIONAL ALLIANCE OF POSTAL AND
FEDERAL EMPLOYEES; NATIONAL
FEDERATION OF FEDERAL EMPLOYEES;
VETERANS ADMINISTRATION AND INDEPENDENT
SERVICE EMPLOYEES UNION;
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES; AMERICAN NURSES ASSOCIATION
VETERANS ADMINISTRATION
AND
AMERICAN NURSES ASSOCIATION
AND
COUNCIL OF AFGE VETERANS
ADMINISTRATION LOCAL AND
OTHER AFL-CIO AFFILIATES,
CARPENTERS AND JOINERS OF
AMERICA; INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS;
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS; LABORERS INTER-
NATIONAL UNION OF NORTH AMERICA;
SERVICE EMPLOYEES INTERNATIONAL
UNION; AND NATIONAL FEDERATION OF
FEDERAL EMPLOYEES (NFFE)
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, A
CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER ANDREW B. BEATH,
FOR THE LIMITED PURPOSE OF ASCERTAINING WHETHER, AND TO WHAT EXTENT, THE
EXISTENCE OF AGREEMENT BARS WHICH HAVE NOT BEEN WAIVED BY ALL PARTIES TO
THE AGREEMENT WOULD EFFECT THE ADEQUACY OF THE PETITIONERS' SHOWING OF
INTEREST IN VIEW OF THE ASSISTANT SECRETARY'S DECISION IN U.S.
DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, A/SLMR NO. 110,
AND THE FACT THAT THE PETITIONERS INCLUDED IN SUPPORT OF THEIR SHOWING
OF INTEREST EMPLOYEES COVERED BY CURRENT NEGOTIATED AGREEMENTS BETWEEN
THEMSELVES AND THE ACTIVITY, THE VETERANS ADMINISTRATION (VA).
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 22-2635(RO) THE PETITIONER, COUNCIL OF AFGE VETERANS
ADMINISTRATION LOCALS AND OTHER AFL-CIO AFFILIATES, NAMELY, CARPENTERS
AND JOINERS OF AMERICA (CJA); INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS (IBEW); INTERNATIONAL ASSOCIATION OF FIREFIGHTERS (IAFF);
LABORERS INTERNATIONAL UNION OF NORTH AMERICA (LIUNA) AND SERVICE
EMPLOYEES INTERNATIONAL UNION (SEIU), HEREIN CALLED THE COUNCIL, SEEKS
AN ELECTION IN THE FOLLOWING UNIT: ALL EMPLOYEES INCLUDING
PROFESSIONALS, (TO BE INCLUDED IN THE UNIT THEY VOTE FOR INCLUSION),
EMPLOYED BY THE VA, EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY AND GUARDS AS DEFINED IN THE ORDER.
IN CASE NO. 22-2692(RO) THE PETITIONER, AMERICAN NURSES ASSOCIATION,
HEREIN CALLED THE NURSES, SEEKS AN ELECTION IN A UNIT OF ALL
PROFESSIONAL REGISTERED NURSES EMPLOYED IN THE DEPARTMENT OF MEDICINE
AND SURGERY OF THE VA, EXCLUDING ALL MANAGEMENT OFFICIALS, SUPERVISORS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS AS DEFINED IN THE ORDER AND ALL OTHER
EMPLOYEES. /2/
POSITIONS OF THE PARTIES
A. CASE NO. 22-2635(RO)
THE COUNCIL CONTENDS THAT THE CASE HANDLING PROCEDURE ADOPTED IN THE
SUBJECT CASE IS INAPPROPRIATE. /3/ IT CONTENDS THAT THERE IS
INSUFFICIENT EVIDENCE ON WHICH THE ASSISTANT SECRETARY CAN BASE A
DECISION AS TO WHETHER OR NOT THE UNIT PETITIONED FOR BY THE COUNCIL IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND, FURTHER, THAT
IT IS IMPROPER TO HEAR EVIDENCE ON, AND MAKE DETERMINATIONS AS TO THE
EFFECTIVENESS OF, THE ALLEGED AGREEMENT, CERTIFICATION, ELECTION AND
HEARING BARS ASSERTED BY THE ACTIVITY WITHOUT ALSO HEARING EVIDENCE AS
TO THE APPROPRIATENESS OF THE UNIT PETITIONED FOR BY THE COUNCIL. THE
COUNCIL, THEREFORE, REQUESTS THAT THE CASE BE REMANDED FOR A FULL AND
COMPLETE HEARINGS ON THE ISSUE OF THE APPROPRIATENESS OF THE UNITS
SOUGHT. IT ARGUES ADDITIONALLY THAT A PETITION FOR NATIONAL EXCLUSIVE
RECOGNITION MUST BE GIVEN SPECIAL CONSIDERATION IF THE NATIONAL
EXCLUSIVE CONCEPT IS TO BE VIABLE. IN SUPPORT OF THIS CONTENTION, IT
URGES THAT THE ASSISTANT SECRETARY'S PRIOR DECISIONS CONCERNING
PROCEDURAL BARS, AS THEY RELATE TO SMALLER UNITS, NOT BE UNIFORMLY
APPLIED TO A PETITION FOR NATIONAL EXCLUSIVE RECOGNITION.
THE ACTIVITY ASSERTS THAT THE NEGOTIATED AGREEMENTS IT WAS PARTY TO
WITH THE COUNCIL ARE PRIMA FACIE BARS TO AN ELECTION. IT ALLEGES THAT
EVIDENCE OF THE VARIOUS BARS HAD BEEN FURNISHED TO THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION AREA OFFICE HANDLING THIS MATTER, AND THAT UNDER
RECENT ASSISTANT SECRETARY DECISIONS /4/ THE EMPLOYEES COVERED BY SUCH
BARS SHOULD NOT BE INCLUDED IN THE PROPOSED UNIT. IN THIS CONNECTION,
THE ACTIVITY MAINTAINS THAT WITH RESPECT TO U.S. DEPARTMENT OF DEFENSE,
DOD OVERSEAS DEPENDENT SCHOOLS, CITED ABOVE, IT DOES NOT WAIVE ANY OF
ITS NEGOTIATED AGREEMENTS WITH THE CONSTITUENTS OF THE COUNCIL WHICH
WOULD BAR AN ELECTION IN THE UNITS COVERED BY SUCH AGREEMENTS. /5/ THE
ACTIVITY CONTENDS THAT THE EXISTENCE OF THESE BARS REQUIRES THAT THE
COUNCIL'S SHOWING OF INTEREST BE RECOMPUTED TO ESTABLISH WHETHER IT HAS
THE REQUIRED 30 PERCENT IN THE UNIT WHICH WOULD REMAIN AFTER REMOVING
ALL EMPLOYEES EXCLUDED BY THE ASSERTED BARS. /6/
THE INTERVENOR, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN
CALLED NFFE, CONTRARY TO THE COUNCIL, CONTENDS THAT ANY UNITS COVERED BY
PROCEDURAL BARS SHOULD BE EXCLUDED FROM THE PETITIONED FOR UNIT, AND
THAT THE COUNCIL'S SHOWING OF INTEREST SHOULD BE RECOMPUTED. THE NFFE
ALSO URGES THAT DISMISSAL IS WARRANTED IN THIS MATTER BASED ON THE
APPLICABILITY OF THE ASSISTANT SECRETARY'S DECISION IN U.S. DEPARTMENT
OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, CITED ABOVE.
THE INTERVENOR, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN
CALLED NAGE, AGREES WITH THE NFFE THAT THE COUNCIL'S SHOWING OF INTEREST
HEREIN MUST BE RECOMPUTED DUE TO THE EXCLUSION OF THOSE FACILITIES WHERE
VALID AGREEMENT OR CERTIFICATION BARS EXIST.
B. CASE NO. 22-2692(RO)
THE NURSES CONTEND THAT THE PURPOSE OF THE HEARING IN THIS MATTER WAS
NOT TO LITIGATE ITS SHOWING OF INTEREST, AND THAT IT ASSUMES THE
ASSISTANT SECRETARY WOULD FIND ITS AMENDED UNIT PRESUMPTIVELY
APPROPRIATE. /7/ HOWEVER, IT MAINTAINS THAT AN EXAMINATION OF THE
NEGOTIATED AGREEMENTS PROFERRED BY THE ACTIVITY AND ALLEGED TO BE BARS
TO THE NURSES' PETITION, IS CRUCIAL. IN THIS RESPECT, THE NURSES ARGUE
THAT IT WAS DENIED DUE PROCESS AT THE HEARING BY VIRTUE OF THE LIMITS
PLACED BY THE HEARING OFFICER ON ITS CROSS-EXAMINATION OF THE ACTIVITY'S
WITNESSES. IT ARGUES THAT BECAUSE THE ACTIVITY ALLEGED EACH NEGOTIATED
AGREEMENT ADMITTED INTO EVIDENCE TO CONSTITUTE A BAR TO THE PETITIONS
HEREIN, IT HAD A RIGHT TO EXAMINE SUCH DOCUMENTS AT THE HEARING IN ORDER
TO SUPPORT ITS CONTENTION THAT THEY ARE NOT BARS. BECAUSE OF THIS
DENIAL OF CROSS-EXAMINATION, THE NURSES CONTEND THAT ONLY A REMAND FOR
AN ADDITIONAL HEARING WOULD AFFORD THE ASSISTANT SECRETARY THE NECESSARY
INFORMATION UPON WHICH TO RENDER A DECISION. /8/ FINALLY, THE NURSES
ARGUE THAT THE AGREEMENTS ENTERED INTO EVIDENCE BY THE ACTIVITY WOULD
NOT CONSTITUTE BARS BECAUSE, AMOUNT OTHER AMONG OTHER THINGS, CERTAIN OF
THEM ARE TERMINABLE AT WILL; WERE AMENDED, MODIFIED, REVISED, OR
TERMINATED /9/; OR HAVE NOT BEEN PROPERLY SIGNED. ALSO, AS ASSERTED BY
THE COUNCIL, THE NURSES CONTEND THAT DIFFERENT PROCEDURAL CONSIDERATIONS
SHOULD BE APPLIED WHERE, AS HERE, A UNIT NATIONAL IN SCOPE IS SOUGHT.
THE ACTIVITY ASSERTS THAT THE PRINCIPLES ESTABLISHED IN U.S.
DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, CITED ABOVE, ARE
APPLICABLE ALSO TO THE NURSES' PETITION. IT CONTENDS THAT THE EXISTENCE
OF PROCEDURAL BARS REQUIRES THAT THE NURSES' SHOWING OF INTEREST BE
RECOMPUTED. FINALLY, IN VIEW OF THE NURSES' AMENDED PETITION WHICH NOW
INCLUDES NURSES IN EXISTING EXCLUSIVELY RECOGNIZED UNITS, AND
SUBSTANTIALLY ENLARGES THE NUMBER OF EMPLOYEES COVERED BY THE PETITION,
THE ACTIVITY CONTENDS THAT THE NURSES' ORIGINAL SHOWING OF INTEREST
SHOULD BE RECOMPUTED.
THE NFFE, IN ADDITION TO THE CONTENTIONS MADE WITH RESPECT TO THE
COUNCIL'S PETITION, ARGUES THAT ANY AND ALL UNITS COVERED BY NEGOTIATED
AGREEMENTS AT THE TIME OF THE FILING OF THE NURSES' PETITION SHOULD BE
BARRED FROM INCLUSION IN THE PETITIONED FOR UNIT AND, THEREFORE, ANY
CONTRIBUTION TO THE SHOWING OF INTEREST ARISING FROM THESE UNITS MUST BE
EXCLUDED FROM THE NURSES' SHOWING OF INTEREST.
THE NAGE CONTENDS THAT THE SHOWING OF INTEREST IN THIS MATTER MUST BE
REEVALUATED IN VIEW OF THE NURSES' AMENDED PETITION.
ADEQUACY OF SHOWING OF INTEREST
THE VA ADMINISTERS LAWS COVERING A WIDE RANGE OF BENEFITS FOR FORMER
MEMBERS AND DEPENDENTS AND BENEFICIARIES OF DECEASED FORMER MEMBERS OF
THE ARMED FORCES. IT ALSO ADMINISTERS LAWS WHICH PROVIDE CERTAIN
BENEFITS TO CURRENT MEMBERS OF THE ARMED FORCES AND TO DEPENDENT
CHILDREN OF SERIOUSLY DISABLED VETERANS. THE VA IS DIRECTED BY THE
ADMINISTRATOR OF VETERANS AFFAIRS AND EMPLOYS SOME 186,000 EMPLOYEES AT
APPROXIMATELY 240 INSTALLATIONS.
AS INDICATED ABOVE, THE HEARING IN THE INSTANT CASE WAS HELD
ESSENTIALLY TO DETERMINE THE EFFECT, IF ANY, THE RATIONALE IN U.S.
DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, CITED ABOVE, HAD
ON THE PETITIONER'S SHOWING OF INTEREST IN THIS MATTER. IN THAT CASE, I
FOUND THAT AN AGREEMENT BAR MAY NOT BE WAIVED UNILATERALLY BY ONE OF THE
PARTIES TO THE NEGOTIATED AGREEMENT. THE EVIDENCE IN THE SUBJECT CASES
ESTABLISHES CLEARLY THAT THE PETITIONERS INCLUDED IN SUPPORT OF THEIR
SHOWING OF INTEREST, EMPLOYEES COVERED BY NEGOTIATED AGREEMENTS BETWEEN
THE PETITIONERS AND THE ACTIVITY AND THAT THE ACTIVITY DID NOT AGREE TO
WAIVE SUCH AGREEMENTS TO THE EXTENT THAT THEY CONSTITUTED PROCEDURAL
BARS TO AN ELECTION.
IN THESE CIRCUMSTANCES, I BELIEVE THAT THE FOLLOWING PRINCIPLES ARE
APPLICABLE:
A. THE AGREEMENT BAR PRINCIPLES AS SET FORTH IN SECTION 202.3(C) OF
THE ASSISTANT SECRETARY'S REGULATIONS WILL BE DEEMED APPLICABLE
IRRESPECTIVE OF WHETHER THE UNIT SOUGHT IS NATIONWIDE IN SCOPE. THUS,
AS I STATED IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173, AND FEDERAL AVIATION ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION, A/SLMR NO. 122, WHICH INVOLVED CLAIMED
UNITS WHICH WERE NATIONWIDE IN SCOPE, WHERE A PETITION FOR A BROAD UNIT
SEEKS TO INCLUDE EMPLOYEES WHO ARE ALREADY REPRESENTED EXCLUSIVELY BY
OTHER LABOR ORGANIZATIONS IN EXISTING LESS COMPREHENSIVE UNITS AND WHO
ARE COVERED BY EXISTING NEGOTIATED AGREEMENTS WHICH CONSTITUTE BARS AT
THE TIME THE PETITION IS FILED, I WILL NOT, ABSENT UNUSUAL
CIRCUMSTANCES, PERMIT THOSE UNITS COVERED BY NEGOTIATED AGREEMENTS TO BE
INCLUDED IN THE BROAD PETITIONED FOR UNIT. NOR WILL I PERMIT A
PETITIONING LABOR ORGANIZATION TO UTILIZE IN ITS SHOWING OF INTEREST FOR
A PETITIONED FOR BROAD UNIT, EMPLOYEES ENCOMPASSED BY THE PETITION WHO
ARE IN AN EXISTING LESS COMPREHENSIVE UNIT REPRESENTED BY ANOTHER LABOR
ORGANIZATION AND COVERED BY A SIGNED AGREEMENT WHICH CONSTITUTES A BAR
TO AN ELECTION.
B. WHERE AN AGREEMENT BAR EXISTS, SUCH BAR MAY NOT BE WAIVED
UNILATERALLY. SEE U.S. DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT
SCHOOLS, CITED ABOVE. IN THE ABSENCE OF A MUTUAL WAIVER OF AN AGREEMENT
BAR, A PETITIONING LABOR ORGANIZATION MAY NOT UTILIZE A SHOWING OF
INTEREST FROM A UNIT IN WHICH THE BAR EXISTS.
C. WHERE A PETITIONER SEEKS A UNIT WHICH ENCOMPASSES A UNIT OR UNITS
IN WHICH IT ALREADY HOLDS EXCLUSIVE RECOGNITION (BUT NO NEGOTIATED
AGREEMENT EXISTS), IN ORDER TO PERMIT THE EMPLOYEES IN SUCH UNIT OR
UNITS TO BE COUNTED FOR PURPOSES OF THE PETITIONER'S SHOWING OF
INTEREST, THE PETITIONER WILL BE REQUIRED TO WAIVE ITS EXCLUSIVE
RECOGNITION STATUS IN SUCH UNIT OR UNITS AND AGREE, IN EFFECT, TO RISK
THAT RECOGNITION IN THE EVENT THAT IT PROCEEDS TO AN ELECTION IN THE
BROAD UNIT AND LOSES. CF. DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS
COMMAND, FORT MONMOUTH, NEW JERSEY, A/SLMR NO. 83, FOOTNOTE 2.
D. WHERE THERE IS AN OTHERWISE VALID AGREEMENT WHICH IS TERMINABLE
AT WILL, OR WHICH CONTAINS OTHER DEFECTS WHICH WOULD CAUSE SUCH
AGREEMENT NOT TO CONSTITUTE A BAR TO AN ELECTION SOUGHT BY A THIRD
PARTY, I FIND THAT THE PARTIES TO SUCH AGREEMENT ARE BOUND BY ITS TERMS
ABSENT AN AFFIRMATIVE ACT OF TERMINATION. THUS, IN MY VIEW, IN ORDER TO
UTILIZE EMPLOYEE MEMBERS COVERED BY SUCH AN AGREEMENT FOR THE PURPOSE OF
SHOWING OF INTEREST, A LABOR ORGANIZATION WHICH IS PARTY TO THE
AGREEMENT MUST AFFIRMATIVELY INDICATE A WILLINGNESS (1) TO TERMINATE ITS
AGREEMENT PRIOR TO THE ELECTION, AND (2) TO WAIVE ITS EXCLUSIVE
RECOGNITION STATUS AND, IN EFFECT, PUT SUCH STATUS "ON THE LINE" AT THE
ELECTION. /10/
AS NOTED ABOVE, THE ACTIVITY HAS INDICATED THAT IT WOULD NOT WAIVE
EXISTING AGREEMENT BARS. FURTHER, AS TO NEGOTIATED AGREEMENTS WHICH,
BECAUSE OF CERTAIN DEFECTS, WOULD NOT CONSTITUTE BARS AS TO THIRD
PARTIES, THE PETITIONERS HAVE NEITHER TAKEN ACTION TO TERMINATE SUCH
AGREEMENTS, NOR INDICATED AN INTENT TO WAIVE THEIR EXCLUSIVE RECOGNITION
STATUS IN THE UNITS ENCOMPASSED BY THEIR PETITIONS IN THIS MATTER, IN
THE EVENT THAT THEY PROCEED TO AN ELECTION IN THEIR BROAD PETITIONED FOR
UNITS AND LOSE. UNDER ALL THESE CIRCUMSTANCES, SUCH EXISTING UNITS MAY
NOT BE INCLUDED IN ANY UNIT FOUND APPROPRIATE AND THE EMPLOYEES IN SUCH
UNITS MAY NOT BE UTILIZED FOR THE PURPOSE OF ESTABLISHING THE
PETITIONERS' SHOWING OF INTEREST IN ANY RESIDUAL UNIT I MIGHT FIND
APPROPRIATE.
ACCORDINGLY, AS I AM ADVISED ADMINISTRATIVELY THAT THE SHOWING OF
INTEREST OF EACH OF THE PETITIONERS IN THE SUBJECT CASES IS INADEQUATE
WITH RESPECT TO ANY RESIDUAL UNITS HEREIN NOT SUBJECT TO PROCEDURAL
BARS, I SHALL DISMISS THE PETITIONS.
IT IS HEREBY ORDERED THAT THE PETITIONS FILED IN CASES NOS.
22-2635(RO) AND 22-2692(RO) BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 15, 1973
/1/ IN U.S. DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS,
CITED ABOVE, I FOUND THAT A PARTY TO A NEGOTIATED AGREEMENT MAY NOT
WAIVE AN AGREEMENT BAR UNILATERALLY. THUS, UNLESS PARTIES TO AN
AGREEMENT AGREE TO WAIVE THE AGREEMENT BAR, THE TIMELINESS OF A PETITION
WITH RESPECT TO A UNIT COVERED BY AN AGREEMENT NECESSARILY WOULD BE
DEPENDENT UPON ITS TIMELINESS UNDER SECTION 202.3(C) OF THE ASSISTANT
SECRETARY'S REGULATIONS.
/2/ THE UNIT APPEARS AS AMENDED. THE UNIT PETITIONED FOR ORGINALLY
WOULD HAVE EXCLUDED REGISTERED NURSES INCLUDED IN EXISTING UNITS
REPRESENTED BY OTHER LABOR ORGANIZATIONS AND COVERED BY NEGOTIATED
AGREEMENTS.
/3/ THE PROCEDURE INVOLVED TWO POSSIBLE PHASES - THE FIRST PHASE TO
DETERMINE WHETHER EACH OF THE PETITIONERS HAD AN ADEQUATE SHOWING OF
INTEREST IN ITS PETITIONED FOR UNIT; AND THE EFFECT, IF ANY, OF U.S.
DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS, CITED ABOVE, UPON
THE ADEQUACY OF THEIR SHOWING OF INTEREST AND THE SECOND PHASE TO
DETERMINE THE APPROPRIATE UNIT QUESTION.
/4/ FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION,
A/SLMR NO. 122; U.S. DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT
SCHOOLS, CITED ABOVE; DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS,
NAVAJO AREA, GALLUP, NEW MEXICO, A/SLMR NO. 99.
/5/ THE RECORD REVEALS FURTHER THAT NEITHER THE COUNCIL, NOR THE
NURSES, WAIVED THEIR NEGOTIATED AGREEMENTS WITH THE ACTIVITY WHICH
CONSTITUTED BARS TO ELECTIONS IN THE UNITS COVERED BY SUCH AGREEMENTS.
/6/ SECTION 202.2(A)(9) OF THE ASSISTANT SECRETARY'S REGULATIONS
REQUIRES THAT A PETITION BE ACCOMPANIED BY A SHOWING OF INTEREST OF NOT
LESS THAN THIRTY (30%) PERCENT OF THE EMPLOYEES IN THE UNIT CLAIMED TO
BE APPROPRIATE.
/7/ THE NURSES TAKE THE ALTERNATIVE POSITION THAT IT WILL PARTICIPATE
IN AN ELECTION IN ITS ORIGINALLY PETITIONED FOR UNIT, OR IN ANY UNIT THE
ASSISTANT SECRETARY FINDS APPROPRIATE.
/8/ IN VIEW OF THE DISPOSITION HEREIN, I HEREBY DENY THE NURSES'
MOTION TO REMAND FOR FURTHER PROCEEDINGS.
/9/ THE NURSES ARGUE ALSO FOR A POLICY DECISION THAT NO BAR WOULD
EXIST WHERE A NEGOTIATED AGREEMENT HAS BEEN REOPENED FOR "MIDTERM"
MODIFICATION. IT CONTENDS THAT THIS ISSUE HAS NOT BEEN CONSIDERED BY
THE ASSISTANT SECRETARY IN PRIOR DECISIONS.
/10/ CF. DEPARTMENT OF THE ARMY, U.S. ARMY ELECTRONICS COMMAND, FORT
MONMOUTH, NEW JERSEY, CITED ABOVE.
3 A/SLMR 239; P. 39; CASE NO. 63-2714; JANUARY 3, 1973.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
AND
DIRECTOR, OFFICE OF LABOR-
MANAGEMENT AND WELFARE-PENSION
REPORTS, UNITED STATES DEPARTMENT
OF LABOR
A/SLMR NO. 239
IN THE SUBJECT CASE ON ADMINISTRATIVE LAW JUDGE ISSUED HIS REPORT AND
RECOMMENDATION RECOMMENDING THAT THE PERSON NAMED IN THE CERTIFICATION
OF ELECTION, ISSUED BY THE DIRECTOR, OFFICE OF LABOR-MANAGEMENT AND
WELFARE-PENSION REPORTS, UNITED STATES DEPARTMENT OF LABOR (DIRECTOR),
BE DECLARED THE DULY ELECTED NATIONAL VICE-PRESIDENT FOR THE TENTH
DISTRICT OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO ,
(AFGE) FOR A FULL CONSTITUTIONAL TERM OF OFFICE, AND THAT THE PROCEEDING
BE DISMISSED.
THIS PROCEEDING, INSTITUTED AT THE DIRECTION OF THE DIRECTOR,
CONCERNED A NOTICE OF HEARING IN WHICH THE DIRECTOR ALLEGED, AMONG OTHER
THINGS, THAT THE AFGE VIOLATED THE ORDER BY DENYING A MEMBER THE RIGHT
TO BE A CANDIDATE FOR OFFICE, BY DENYING MEMBERS A REASONABLE
OPPORTUNITY FOR THE NOMINATION OF CANDIDATES FOR OFFICE, AND IN THE
CONDUCT OF AN ELECTION IN THAT MONEYS RECEIVED BY WAY OF DUES,
ASSESSMENTS OR SIMILAR LEVY WERE USED IN AN IMPROPER MANNER. IT WAS
ALSO ALLEGED THAT THE AFGE VIOLATED THE ORDER AND PROVISIONS OF ITS OWN
CONSTITUTION IN THE CONDUCT OF AN ELECTION.
THEREAFTER, THE AFGE AND THE DIRECTOR ENTERED INTO A STIPULATION,
WHICH WAS APPROVED BY AN ADMINISTRATION LAW JUDGE. IN THE STIPULATION,
THE AFGE, WITHOUT CONCEDING THAT THE PREVIOUSLY HELD ELECTION WAS IN
VIOLATION OF THE ORDER, AGREED TO CONDUCT ITS NEXT REGULAR ELECTION
UNDER THE SUPERVISION OF THE DIRECTOR AND IN ACCORDANCE WITH THE
PROVISIONS OF THE ORDER AND ITS CONSTITUTION. THE ELECTION SUBSEQUENTLY
WAS HELD AND THE DIRECTOR ISSUED A CERTIFICATION OF ELECTION.
UPON CONSIDERATION OF THE FOREGOING, THE ASSISTANT SECRETARY FOUND
THAT THE PERSON NAMED IN THE CERTIFICATION OF ELECTION HAD BEEN DULY
ELECTED AS NATIONAL VICE-PRESIDENT FOR THE TENTH DISTRICT OF THE
RESPONDENT FOR A FULL CONSTITUTIONAL TERM OF OFFICE. ACCORDINGLY, HE
ADOPTED THE RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE AND DISMISSED
THE PROCEEDING.
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO
AND
DIRECTOR, OFFICE OF
LABOR-MANAGEMENT AND
WELFARE-PENSION REPORTS,
UNITED STATES DEPARTMENT OF LABOR
ON AUGUST 8, 1972, ADMINISTRATIVE LAW JUDGE E. WEST PARKINSON ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING
RECOMMENDING THAT THE PERSON NAMED IN THE CERTIFICATION OF ELECTION
(DATED JUNE 21, 1972), FILED BY THE DIRECTOR, OFFICE OF LABOR-MANAGEMENT
AND WELFARE-PENSION REPORTS, UNITED STATES DEPARTMENT OF LABOR, (HEREIN
CALLED THE DIRECTOR), BE DECLARED THE DULY ELECTED NATIONAL
VICE-PRESIDENT FOR THE TENTH DISTRICT OF THE RESPONDENT FOR A FULL
CONSTITUTIONAL TERM OF OFFICE AND THAT THIS PROCEEDING BE DISMISSED.
THIS PROCEEDING WAS INSTITUTED BY A NOTICE OF HEARING ISSUED AT THE
DIRECTION OF THE DIRECTOR ON AUGUST 17, 1971, THROUGH ACTING REGIONAL
ADMINISTRATOR ZELDICH, IN ACCORDANCE WITH SECTION 204.66 AND 204.67 OF
THE ASSISTANT SECRETARY'S REGULATIONS IN FORCE AT THAT TIME AND
EXECUTIVE ORDER 11491. IN THE NOTICE OF HEARING, THE DIRECTOR ALLEGED,
AMONG OTHER THINGS, THAT THE RESPONDENT VIOLATED THE ORDER (1) BY
DENYING A MEMBER IN GOOD STANDING THE RIGHT TO BE A CANDIDATE FOR THE
OFFICE OF NATIONAL VICE-PRESIDENT FOR RESPONDENT'S TENTH DISTRICT; (2)
BY DENYING MEMBERS IN GOOD STANDING A REASONABLE OPPORTUNITY FOR THE
NOMINATION OF CANDIDATES FOR THE OFFICE OF NATIONAL VICE-PRESIDENT FOR
THE RESPONDENT'S TENTH DISTRICT, AND THE RIGHT TO VOTE FOR AND OTHERWISE
SUPPORT CANDIDATES OF THEIR CHOICE; AND (3) IN THE CONDUCT OF THE
ELECTION FOR A NATIONAL VICE-PRESIDENT FOR THE RESPONDENT'S TENTH
DISTRICT, IN THAT MONEYS RECEIVED BY WAY OF DUES, ASSESSMENTS OR SIMILAR
LEVY WERE USED TO PROMOTE THE CANDIDACY OF PARTICULAR INDIVIDUALS IN AN
IMPROPER MANNER. THE DIRECTOR FURTHER ALLEGED THAT THE RESPONDENT
VIOLATED THE ORDER AND PROVISIONS OF ITS OWN CONSTITUTION IN THE CONDUCT
OF THE ELECTION.
THEREAFTER, ON SEPTEMBER 23, 1971, THE RESPONDENT ENTERED INTO A
STIPULATION WITH THE COUNSEL FOR THE DIRECTOR, IN WHICH, WITHOUT
CONCEDING THAT THE PREVIOUSLY HELD ELECTION FOR THE OFFICE OF NATIONAL
VICE-PRESIDENT FOR THE RESPONDENT'S TENTH DISTRICT WAS IN VIOLATION OF
THE ORDER, IT AGREED TO CONDUCT ITS NEXT REGULAR ELECTION FOR THAT
OFFICE UNDER THE SUPERVISION OF THE DIRECTOR, IN ACCORDANCE WITH THE
PROVISIONS OF THE ORDER, THE ASSISTANT SECRETARY'S REGULATIONS, AND SO
FAR AS LAWFUL AND PRACTICABLE, IN ACCORDANCE WITH THE PROVISIONS OF ITS
CONSTITUTION. ON SEPTEMBER 27, 1971, ADMINISTRATIVE LAW JUDGE PARKINSON
ISSUED AN ORDER APPROVING THE STIPULATION.
THEREAFTER, AN ELECTION WAS CONDUCTED ON APRIL 18, 1972, AND ON JUNE
21, 1972, THE DIRECTOR ISSUED A CERTIFICATION OF ELECTION, IN WHICH HE
CERTIFIED THAT THE ELECTION, CONDUCTED UNDER HIS SUPERVISION, WAS IN
ACCORDANCE WITH THE PROVISIONS OF THE ORDER, THE ASSISTANT SECRETARY'S
REGULATIONS, AND SO FAR AS LAWFUL AND PRACTICABLE, IN ACCORDANCE WITH
THE PROVISIONS OF THE RESPONDENT'S CONSTITUTION.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, THE STIPULATION AND ORDER UPON WHICH IT IS BASED, AND
THE ENTIRE RECORD IN THE SUBJECT CASE, I HEREBY FIND THAT TOM SWAIN, THE
PERSON NAMED IN THE CERTIFICATION OF ELECTION ISSUED BY THE DIRECTOR ON
JUNE 21, 1972, HAS BEEN DULY ELECTED AS NATIONAL VICE-PRESIDENT FOR THE
TENTH DISTRICT OF THE RESPONDENT FOR A FULL CONSTITUTIONAL TERM OF
OFFICE. ACCORDINGLY, I HEREBY ADOPT THE RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE THAT THIS PROCEEDING BE DISMISSED.
IT IS HEREBY ORDERED THAT CASE NO. 63-2714 BE, AND IT HEREBY IS,
DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 3, 1973
IN THE MATTER OF
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
IT APPEARING TO THE HEARING DIRECTOR, THAT, PURSUANT TO A STIPULATION
AND ORDER ENTERED ON SEPTEMBER 27, 1971, THE RESPONDENT HAS CONDUCTED AN
ELECTION FOR THE OFFICE OF NATIONAL VICE PRESIDENT FOR THE TENTH
DISTRICT UNDER THE SUPERVISION OF THE DIRECTOR, OFFICE OF
LABOR-MANAGEMENT AND WELFARE-PENSION REPORTS, UNITED STATES DEPARTMENT
OF LABOR AND OF THE CIVIL SERVICE COMMISSION; AND THAT THE DIRECTOR HAS
FILED A CERTIFICATION OF THE ELECTION, CERTIFYING THE NAME OF THE PERSON
WHO WAS ELECTED IN SUCH ELECTION, AND FURTHER CERTIFYING THAT SUCH
ELECTION WAS CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE
ORDER NO. 11491 AND THE RULES AND REGULATIONS ISSUED PURSUANT THERETO BY
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, AND SO
FAR AS LAWFUL AND PRACTICABLE, IN ACCORDANCE WITH THE PROVISIONS OF
RESPONDENT'S CONSTITUTION; AND THE HEARING EXAMINER HAVING CONSIDERED
SUCH CERTIFICATION AND BEING FULLY ADVISED, IT IS UPON MOTION FOR THE
DIRECTOR HEREBY:
RECOMMENDED THAT THE PERSON NAMED IN THE CERTIFICATION OF ELECTION
FILED AS AFORESAID BY THE DIRECTOR, BE DECLARED THE DULY ELECTED
NATIONAL VICE PRESIDENT FOR THE TENTH DISTRICT OF THE RESPONDENT FOR A
FULL CONSTITUTIONAL TERM OF OFFICE AND THAT THIS PROCEEDING BE
DISMISSED.
ENTERED THIS 8TH DAY OF AUGUST, 1972.
3 A/SLMR 238; P. 36; CASE NO. S-E-1 (22-1965); JANUARY 3, 1973.
NATIONAL ALLIANCE OF POSTAL AND
FEDERAL EMPLOYEES
AND
DIRECTOR, OFFICE OF LABOR-MANAGEMENT
AND WELFARE-PENSION REPORTS,
UNITED STATES DEPARTMENT OF LABOR
A/SLMR NO. 238
IN THE SUBJECT CASE AN ADMINISTRATIVE LAW JUDGE ISSUED HIS REPORT AND
RECOMMENDATIONS RECOMMENDING THAT THE PERSONS NAMED IN THE CERTIFICATION
OF ELECTION, ISSUED BY THE DIRECTOR'S OFFICE OF LABOR-MANAGEMENT AND
WELFARE-PENSION REPORTS, UNITED STATES DEPARTMENT OF LABOR (DIRECTOR),
BE DECLARED THE DULY ELECTED PRESIDENT, FIRST VICE-PRESIDENT, SECOND
VICE-PRESIDENT, SECRETARY, TREASURER-COMPTROLLER AND EDITOR OF THE
NATIONAL ALLIANCE OF POSTAL AND FEDERAL EMPLOYEES (NAPFE) FOR A FULL
CONSTITUTIONAL TERM OF OFFICE, AND THAT THE PROCEEDING BE DISMISSED.
THIS PROCEEDING, INSTITUTED AT THE DIRECTION OF THE DIRECTOR,
CONCERNED A NOTICE OF HEARING IN WHICH THE DIRECTOR ALLEGED, AMONG OTHER
THINGS, THAT IN CONNECTION WITH AN ELECTION OF OFFICERS OF THE NAPFE,
WHICH ELECTION WAS SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER 11491,
THE ASSISTANT SECRETARY'S REGULATIONS, AND SECTIONS 401(A) THROUGH
401(G) OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959
(LMRDA), THERE WAS PROBABLE CAUSE TO BELIEVE THAT VIOLATIONS OF THE
ASSISTANT SECRETARY'S REGULATIONS AND THE LMRDA HAD OCCURRED.
SPECIFICALLY, THE DIRECTOR ALLEGED THE NAPFE VIOLATED THE ASSISTANT
SECRETARY'S REGULATIONS AND THE LMRDA, BY DENYING MEMBERS A REASONABLE
OPPORTUNITY TO NOMINATE CANDIDATES FOR OFFICE BY THE IMPOSITION OF A
SELF-NOMINATION RULE; BY THE IMPOSITION OF A FIFTEEN ($15.00) DOLLAR
FILING FEE, BY DENYING MEMBERS THE RIGHT TO VOTE FOR OR OTHERWISE
SUPPORT CANDIDATES OF THEIR CHOICE BY FAILING TO MAIL BALLOTS TO A
SUBSTANTIAL NUMBER OF MEMBERS; BY FAILING TO PRESERVE FOR ONE YEAR THE
BALLOTS AND ALL OTHER RECORDS PERTAINING TO THE ELECTION; AND IN THE
CONDUCT OF THE ELECTION IN THAT MONEYS RECEIVED BY WAY OF DUES,
ASSESSMENT, OR SIMILAR LEVY BY THE WASHINGTON, D.C. BRANCH OF THE NAPFE
WERE CONTRIBUTED TO PROMOTE THE CANDIDACY OF ONE OF THE CANDIDATES FOR
THE OFFICE OF NATIONAL PRESIDENT.
THEREAFTER, THE NAPFE AND COUNSELS FOR THE DIRECTOR ENTERED INTO A
STIPULATION, WHICH WAS APPROVED BY AN ADMINISTRATIVE LAW JUDGE. IN THE
STIPULATION THE NAPFE, WITHOUT CONCEDING THAT THE PREVIOUSLY HELD
ELECTION WAS IN VIOLATION OF THE ORDER, AGREED TO CONDUCT ITS NEXT
REGULAR ELECTION WITH REPRESENTATIVES OF THE DIRECTOR PRESENT TO ADVISE
AND INSURE THAT THE ELECTION WAS CONDUCTED IN ACCORDANCE WITH THE
PROVISIONS OF THE ORDER, THE ASSISTANT SECRETARY'S REGULATIONS AND ITS
OWN CONSTITUTION. THE ELECTION SUBSEQUENTLY WAS HELD AND THE DIRECTOR
ISSUED A CERTIFICATION OF ELECTION.
UPON CONSIDERATION OF THE FOREGOING, THE ASSISTANT SECRETARY FOUND
THAT THE PERSONS NAMED IN THE CERTIFICATION OF ELECTION HAD BEEN DULY
ELECTED PRESIDENT, FIRST VICE-PRESIDENT, SECOND VICE-PRESIDENT,
SECRETARY, TREASURER-COMPTROLLER AND EDITOR OF THE RESPONDENT FOR A FULL
CONSTITUTIONAL TERM OF OFFICE. ACCORDINGLY, HE ADOPTED THE
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE AND DISMISSED THE
PROCEEDING.
NATIONAL ALLIANCE OF POSTAL
AND FEDERAL EMPLOYEES
AND
DIRECTOR, OFFICE OF
LABOR-MANAGEMENT AND
WELFARE-PENSION REPORTS,
UNITED STATES DEPARTMENT OF LABOR
ON NOVEMBER 10, 1972, ADMINISTRATIVE LAW JUDGE E. WEST PARKINSON
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING
RECOMMENDING THAT THE PERSONS NAMED IN THE CERTIFICATION OF ELECTION
(DATED AUGUST 11, 1972), FILED BY THE DIRECTOR, OFFICE OF
LABOR-MANAGEMENT AND WELFARE-PENSION REPORTS, UNITED STATES DEPARTMENT
OF LABOR, (HEREIN CALLED THE DIRECTOR), BE DECLARED THE DULY ELECTED
PRESIDENT, FIRST VICE-PRESIDENT, SECOND VICE-PRESIDENT, SECRETARY,
TREASURER-COMPTROLLER, AND EDITOR OF THE RESPONDENT FOR A FULL
CONSTITUTIONAL TERM OF OFFICE AND THAT THIS PROCEEDING BE DISMISSED.
THIS PROCEEDING WAS INSTITUTED BY A NOTICE OF HEARING ISSUED AT THE
DIRECTION OF THE DIRECTOR ON AUGUST 30, 1971, THROUGH REGIONAL
ADMINISTRATOR OVERATH, IN ACCORDANCE WITH SECTIONS 204.66 AND 204.67 OF
THE ASSISTANT SECRETARY'S REGULATIONS IN FORCE AT THE TIME, AND
EXECUTIVE ORDER 11491. IN THE NOTICE OF HEARING, THE DIRECTOR ALLEGED
THAT, PURSUANT TO AN INVESTIGATION OF A COMPLAINT IN CONNECTION WITH AN
ELECTION OF OFFICERS CONDUCTED BY THE RESPONDENT BETWEEN JUNE 16 AND
JULY 17, 1970, WHICH ELECTION WAS SUBJECT TO THE PROVISIONS OF THE
ORDER, THE ASSISTANT SECRETARY'S REGULATIONS, AND THE PROVISIONS OF
SECTIONS 401(A) THROUGH 401(G) OF THE LABOR-MANAGEMENT REPORTING AND
DISCLOSURE ACT OF 1959 (LMRDA), THERE WAS PROBABLE CAUSE TO BELIEVE THAT
VIOLATIONS OF SECTION 204.29 OF THE ASSISTANT SECRETARY'S REGULATIONS
AND CORRESPONDING VIOLATIONS OF THE LMRDA HAD OCCURED AND HAD NOT BEEN
CORRECTED AT THE TIME OF THE INSTITUTION OF THIS PROCEEDING.
SPECIFICALLY, THE DIRECTOR ALLEGED, AMONG OTHER THINGS, THAT THE
RESPONDENT VIOLATED THE ASSISTANT SECRETARY'S REGULATIONS AND
CORRESPONDING PROVISIONS OF THE LMRDA (1) BY DENYING MEMBERS IN GOOD
STANDING A REASONABLE OPPORTUNITY TO NOMINATE CANDIDATES OF THEIR CHOICE
BY THE IMPOSITION OF A SELF-NOMINATION RULE; (2) BY DENYING MEMBERS IN
GOOD STANDING A REASONABLE OPPORTUNITY TO NOMINATE CANDIDATES OF THEIR
CHOICE BY THE IMPOSITION OF A FIFTEEN ($15.00) DOLLAR FILING FEE FOR ALL
CANDIDATES; (3) BY DENYING MEMBERS IN GOOD STANDING THE RIGHT TO VOTE
FOR OR OTHERWISE SUPPORT CANDIDATES OF THEIR CHOICE BY FAILING TO MAIL
BALLOTS TO A SUBSTANTIAL NUMBER OF MEMBERS; (4) BY FAILING TO PRESERVE
FOR ONE YEAR THE BALLOTS AND ALL OTHER RECORDS PERTAINING TO THE
ELECTION; AND (5) IN THE CONDUCT OF THE ELECTION IN THAT MONEYS
RECEIVED BY WAY OF DUES, ASSESSMENT, OR SIMILAR LEVY BY THE WASHINGTON,
D.C. BRANCH OF THE RESPONDENT WERE CONTRIBUTED TO PROMOTE THE CANDIDACY
OF ONE OF THE CANDIDATES FOR THE OFFICE OF NATIONAL PRESIDENT.
THEREAFTER, ON DECEMBER 14, 1971, THE RESPONDENT ENTERED INTO A
STIPULATION WITH THE COUNSELS FOR THE DIRECTOR'S IN WHICH, WITHOUT
CONCEDING THAT THE PREVIOUSLY HELD ELECTION WAS IN VIOLATION OF THE
ORDER, IT AGREED TO CONDUCT ITS NEXT REGULAR ELECTION WITH
REPRESENTATIVES OF THE DIRECTOR PRESENT TO ADVISE AND INSURE THAT THE
ELECTION WAS CONDUCTED IN ACCORDANCE WITH THE PROVISIONS OF THE ORDER,
THE ASSISTANT SECRETARY'S REGULATIONS, AND SO FAR AS LAWFUL AND
PRACTICABLE, IN ACCORDANCE WITH THE PROVISIONS OF ITS OWN CONSTITUTION.
ON DECEMBER 27, 1971, ADMINISTRATIVE LAW JUDGE PARKINSON ISSUED AN ORDER
APPROVING THE STIPULATION.
THEREAFTER, AN ELECTION WAS CONDUCTED AND, ON AUGUST 11, 1972, THE
DIRECTOR ISSUED A CERTIFICATION OF ELECTION IN WHICH HE STATED THAT THE
ELECTION, CONDUCTED UNDER HIS SUPERVISION, WAS IN ACCORDANCE WITH THE
PROVISIONS OF THE ORDER, THE ASSISTANT SECRETARY'S REGULATIONS, AND SO
FAR AS LAWFUL AND PRACTICABLE, IN ACCORDANCE WITH THE PROVISIONS OF THE
RESPONDENT'S CONSTITUTION.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, THE STIPULATION AND ORDER UPON WHICH IT IS BASED, AND
THE ENTIRE RECORD IN THE SUBJECT CASE, I HEREBY FIND THAT ROBERT L.
(BOB) WHITE, WESLEY YOUNG, CHERRY BROWN, VOTIE D. DIXON, ENORMEL CLARK
AND SNOW F. GRIGSBY, THE PERSONS NAMED IN THE CERTIFICATION OF ELECTION
ISSUED BY THE DIRECTOR ON AUGUST 11, 1972, HAVE BEEN DULY ELECTED,
RESPECTIVELY, AS THE PRESIDENT, FIRST VICE-PRESIDENT, SECOND
VICE-PRESIDENT, SECRETARY, TREASURER-COMPTROLLER AND EDITOR OF THE
RESPONDENT FOR A FULL CONSTITUTIONAL TERM OF OFFICE. ACCORDINGLY, I
HEREBY ADOPT THE RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE THAT
THIS PROCEEDING BE DISMISSED.
IT IS HEREBY ORDERED THAT CASE NO. S-E-1 (22-1965) BE, AND IT HEREBY
IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 3, 1973
IN THE MATTER OF
NATIONAL ALLIANCE OF POSTAL
AND FEDERAL EMPLOYEES,
IT APPEARING TO THE ADMINISTRATIVE LAW JUDGE THAT, PURSUANT TO A
STIPULATION AND ORDER APPROVED BY THE HEARING EXAMINER /1/ ON DECEMBER
27, 1971, THE RESPONDENT HAS CONDUCTED AN ELECTION FOR THE OFFICES OF
PRESIDENT, FIRST VICE-PRESIDENT, SECOND VICE-PRESIDENT, SECRETARY,
TREASURER-COMPTROLLER AND EDITOR UNDER THE SUPERVISION OF THE DIRECTOR;
AND THAT THE DIRECTOR HAS FILED A CERTIFICATION OF ELECTION, CERTIFYING
THE NAMES OF THE PERSONS WHO WERE ELECTED IN SUCH ELECTION, AND FURTHER
CERTIFYING THAT SUCH NEW ELECTION WAS CONDUCTED IN ACCORDANCE WITH THE
PROVISIONS OF EXECUTIVE ORDER 11491 AND THE RULES AND REGULATIONS ISSUED
PURSUANT THERETO BY THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
RELATIONS, AND IN CONFORMITY WITH THE CONSTITUTION OF THE RESPONDENT SO
FAR AS LAWFUL AND PRACTICABLE; AND THE ADMINISTRATIVE LAW JUDGE HAVING
CONSIDERED SAID CERTIFICATION AND BEING FULLY ADVISED, IT IS UPON MOTION
OF THE DIRECTOR HEREBY;
RECOMMENDED: THAT THE PERSONS NAMED IN THE CERTIFICATION OF ELECTION
FILED AS AFORESAID BY THE DIRECTOR, BE DECLARED THE DULY ELECTED
OFFICERS OF THE RESPONDENT FOR A FULL CONSTITUTIONAL TERM OF OFFICE, AND
THAT THIS PROCEEDING BE DISMISSED.
DATED AT WASHINGTON, D.C.
THIS 10TH DAY OF NOVEMBER, 1972.
/1/ TITLE OF HEARING EXAMINER CHANGED TO ADMINISTRATIVE LAW JUDGE
EFFECTIVE IN AUGUST 1972.
3 A/SLMR 237; P. 33; CASE NO. 50-8240(25); JANUARY 3, 1973.
THE DEPARTMENT OF THE TREASURY,
U.S. SAVINGS BONDS DIVISION,
WISCONSIN STATE OFFICE
MILWAUKEE, WISCONSIN
A/SLMR NO. 237
THE PETITIONER, LOCAL 2230, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), SOUGHT AN ELECTION IN A UNIT OF ALL
NON-SUPERVISORY EMPLOYEES IN THE WISCONSIN STATE OFFICE OF THE U.S.
SAVINGS BONDS DIVISION OF THE U.S. DEPARTMENT OF THE TREASURY
(DIVISION). THE WISCONSIN STATE OFFICE REPORTS, TOGETHER WITH STATE
OFFICES IN ILLINOIS AND INDIANA, TO THE NORTH CENTRAL MARKET OFFICE,
HEADQUARTERED IN CHICAGO, ILLINOIS. THE ACTIVITY TOOK THE POSITION THAT
THE PROPOSED UNIT WAS INAPPROPRIATE AND THAT THE APPROPRIATE UNIT WOULD
BE ONE WHICH INCLUDED ALL OF ITS NATIONWIDE FIELD OPERATIONS.
THE ASSISTANT SECRETARY DETERMINED THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT DID NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST SEPARATE AND APART FROM CERTAIN OTHER EMPLOYEES OF THE FIELD
OPERATIONS OF THE DIVISION. IN THIS CONNECTION, HE NOTED THAT ALL OF
THE DIVISION'S FIELD EMPLOYEES HAD A COMMON MISSION, THAT THE CLAIMED
EMPLOYEES IN THE WISCONSIN STATE OFFICE WERE, TOGETHER WITH EMPLOYEES OF
THE STATE OFFICES IN ILLINOIS AND INDIANA, UNDER THE AUTHORITY OF THE
SAME MARKET OFFICE AND MARKET DIRECTOR, THAT THE DIVISION'S MARKET
OFFICES HAD A FUNCTIONAL INTERRELATIONSHIP IN CONNECTION WITH THE
ACCOMPLISHMENT OF THEIR INDIVIDUAL GOALS, AND THAT THERE WAS
COORDINATION AND COOPERATION AMONG BOND SALES PROMOTIONAL
REPRESENTATIVES (BSPR'S) ASSIGNED TO DIFFERENT STATE OFFICES. HE NOTED
ALSO THAT BSPR'S ENGAGED IN TRAINING AT THE NATIONAL LEVEL, THE DIVISION
HAD CENTRALIZED PERSONNEL POLICIES, AND THE AREA OF CONSIDERATION FOR
PROMOTIONS WAS NATIONWIDE FOR BSPR'S. ON THE BASIS OF THE FOREGOING,
THE ASSISTANT SECRETARY WAS OF THE OPINION THAT A FRAGMENTED UNIT
LIMITED TO ONE STATE OFFICE COULD NOT REASONABLY BE EXPECTED TO PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE
FOUND THAT THE PETITIONED FOR UNIT WAS NOT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION AND ORDERED THAT THE PETITION BE DISMISSED.
THE DEPARTMENT OF THE TREASURY
U.S. SAVINGS BONDS DIVISION,
WISCONSIN STATE OFFICE,
MILWAUKEE, WISCONSIN /1/
AND
LOCAL 2230, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER B. W. HOGANCAMP.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE ACTIVITY'S BRIEF,
THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, LOCAL 2230, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, SEEKS AND ELECTION IN A UNIT OF
ALL NONSUPERVISORY EMPLOYEES IN THE WISCONSIN STATE OFFICE OF THE U.S.
SAVINGS BONDS DIVISION OF THE U.S. DEPARTMENT OF THE TREASURY, EXCLUDING
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, PROFESSIONALS, AND SUPERVISORS
AND GUARDS AS DEFINED IN THE EXECUTIVE ORDER.
THE ACTIVITY TAKES THE POSITION THAT THE PROPOSED UNIT IS
INAPPROPRIATE BECAUSE (1) THE EMPLOYEES IN QUESTION DO NOT POSSESS A
SEPARATE AND DISTINCT COMMUNITY OF INTEREST AS CONTRASTED WITH THE CLEAR
AND IDENTIFIABLE COMMONALITY AMONG ALL EMPLOYEES IN THE ACTIVITY'S FIELD
OPERATIONS; (2) RECOGNITION OF SUCH A FRAGMENTED GROUPING WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS; AND (3)
THE AFGE'S PETITION IS BASED SOLELY ON THE EXTENT OF ORGANIZATION. THE
ACTIVITY MAINTAINS THAT THE APPROPRIATE UNIT IS ONE WHICH WOULD INCLUDE
ALL ELEMENTS OF ITS NATIONWIDE FIELD OPERATIONS. /2/
THE MISSION OF THE U.S. SAVINGS BONDS DIVISION IS TO PROMOTE THE SALE
AND RETENTION OF SAVINGS BONDS. ITS OVERALL POLICIES AND PROGRAMS ARE
DEVELOPED AT THE NATIONAL LEVEL AND ARE IMPLEMENTED AT THE LOCAL LEVEL
BY A FIELD ORGANIZATION OPERATING THROUGHOUT THE UNITED STATES.
OVERALL ADMINISTRATION AND MANAGEMENT OF THE DIVISION IS VESTED IN A
NATIONAL DIRECTOR, LOCATED IN THE DIVISION'S HEADQUARTERS IN WASHINGTON,
D.C. REPORTING TO THE NATIONAL DIRECTOR AT THE HEADQUARTERS LEVEL IS
THE DIRECTOR OF MARKETING, CHARGED WITH THE RESPONSIBILITY FOR THE
DIVISION'S FIELD STAFF OF MORE THAN 260 EMPLOYEES. AT THE NEXT LEVEL OF
ORGANIZATION ARE 11 GEOGRAPHICALLY DISPERSED MARKET OFFICES /3/ HEADED
BY MARKET DIRECTORS. EACH MARKET DIRECTOR IS RESPONSIBLE FOR A SEGMENT
OF 42 MARKETING ENTITIES (CALLED STATE OFFICES), SOME COVERING
INDIVIDUAL STATES AND OTHERS CROSSING STATE LINES. THE DIRECTORS OF THE
STATE OFFICES REPORT TO THEIR RESPECTIVE MARKET DIRECTORS. THE
WISCONSIN STATE OFFICE - THE PETITIONED FOR UNIT HEREIN - REPORTS,
TOGETHER WITH THE STATE OFFICES IN ILLINOIS AND INDIANA, TO THE NORTH
CENTRAL MARKET OFFICE, HEADQUARTERED IN CHICAGO, ILLINOIS.
THE WISCONSIN STATE OFFICE CONSISTS OF EIGHT EMPLOYEES. SIX OF THE
OFFICE'S EMPLOYEES ARE LOCATED AT THE OFFICE'S PRIMARY SITUS OF
OPERATIONS IN MILWAUKEE, WISCONSIN. THESE EMPLOYEES INCLUDE THE STATE
DIRECTOR, HIS ADMINISTRATIVE ASSISTANT, TWO BOND SALES PROMOTION
REPRESENTATIVES (BSPR'S) /4/ , AND TWO CLERICALS. TWO ADDITIONAL
BSPR'S, (WHO ARE TERMED "AREA MANAGERS"), ARE SITUATED IN FIELD
LOCATIONS WITHIN THE STATE; NAMELY, KENOSHA AND MADISON, WISCONSIN.
AS IN THE CASE WITH EACH OF THE DIVISION'S OTHER STATE OFFICES, THE
WISCONSIN STATE OFFICE IS RESPONSIBLE FOR CARRYING OUT NATIONAL POLICIES
AND PROGRAMS AT A LOCAL LEVEL. THE RECORD REVEALS THAT AN IMPORTANT
ELEMENT OF THIS FUNCTION IS THE FULFILLMENT OF AN ANNUALLY ASSIGNED GOAL
FOR BOND SALES. IN THIS CONNECTION, THE NATIONAL OFFICE DETERMINES THE
SPECIFIC DOLLAR GOAL FOR EACH MARKET AND STATE OFFICE AS WELL AS THE
SPECIFIC DOLLAR GOAL FOR EACH MARKET AND STATE OFFICE AS WELL AS A
BUDGET WITHIN WHICH SUCH GOAL MUST BE REACHED; EACH MAY BE CHANGED
SOLELY UPON AUTHORIZATION BY THE APPROPRIATE OFFICIALS AT THE NATIONAL
OFFICE. SUBSEQUENT TO THE NATIONAL OFFICE'S ASSIGNMENT OF A PARTICULAR
GOAL TO THE MARKET AND STATE DIRECTORS, THE MARKET DIRECTORS, WITH THE
AID OF THEIR STATE DIRECTORS, DEVELOP A DETAILED MARKET SALES PLAN TO
MEET THE NEEDS OF THE AREAS WITHIN THEIR JURISDICTION. STATE DIRECTORS
THEN ALLOCATE INDIVIDUAL SALES GOALS TO BSPR'S IN THEIR STATE. IN THIS
CONNECTION, THE EVIDENCE SHOWS THAT THE REALIZATION OF THE NORTH GENERAL
MARKET OFFICE'S ASSIGNED DOLLAR OBJECTIVE DEPENDS UPON THE DEGREE OF
ACHIEVEMENT ATTAINED BY THE STATE OFFICES IN ILLINOIS, INDIANA, AND
WISCONSIN, AND THE STATE OFFICES, IN TURN, DEPEND ON THE SUCCESS OF
THEIR INDIVIDUAL BSPR'S. FURTHER, THE RECORD REFLECTS THAT THERE IS A
DEGREE OF INTERRELATIONSHIP AMONG DIFFERENT MARKET OFFICES. THUS, THE
RECORD IN THE INSTANT CASE REVEALS THAT TWO OF WISCONSIN'S NORTHERN
COUNTIES ARE SERVICED BY BSPR'S FROM MINNESOTA, A STATE WHICH IS IN A
SEPARATE MARKET OFFICE AREA, AND THAT ANY SALES IN THESE COUNTIES ARE
CREDITED NOT ONLY TO THE WISCONSIN SALES GOAL AND THE INDIVIDUAL GOALS
OF THE MINNESOTA BSPR'S, BUT ALSO TO THE TWO DISTINCT MARKET OFFICE
GOALS.
TO ACCOMPLISH THEIR ASSIGNED TASK, FIELD PERSONNEL ESTABLISH INITIAL
CONTACTS WITH LOCAL ELEMENTS OF BUSINESS, LABOR, SCHOOLS, AND BANKS WITH
THE OBJECTIVE OF ESTABLISHING SALES CAMPAIGNS AND ORGANIZING THE
VOLUNTEERS WHO ENGAGE IN THE ACTUAL BOND SELLING. IN THE PERFORMANCE OF
THEIR JOB FUNCTIONS, ALL OF THE DIVISION'S BSPR'S ARE IN TRAVEL STATUS
APPROXIMATELY 85 PERCENT OF THE TIME AND ARE REQUIRED TO MAKE AT LEAST
FIVE CALLS TO CLIENTS PER DAY, A MINIMUM ESTABLISHED AT THE NATIONAL
LEVEL. BSPR'S ARE AIDED IN THEIR WORK BY GUIDANCE MATERIALS AND
DIRECTIVES WHICH ARE DISTRIBUTED TO MARKET AND STATE OFFICES BY THE
DIVISION'S NATIONAL OFFICE. THE RECORD REVEALS THAT ANY REQUESTS BY
WISCONSIN BSPR'S FOR SALES CAMPAIGN SUPPLIES ARE DIRECTED TO THEIR STATE
DIRECTOR, WHO SUBMITS SUCH REQUISITIONS TO THE NORTH CENTRAL MARKET
OFFICE HEADQUARTERS WHERE THEY ARE COMPLETED AND SENT OUT.
ALTHOUGH BSPR'S WORK INDEPENDENTLY IN CREATING AND CARRYING OUT AN
EFFECTIVE SALES CAMPAIGN IN THEIR AREA, COORDINATED EFFORTS WITH BSPR'S
IN OTHER STATES AND MARKETS ARE SOMETIMES REQUIRED. THUS, A BSPR IN A
STATE WHERE A LARGE NATIONAL CORPORATION IS HEADQUARTERED WILL ESTABLISH
A SAVINGS BONDS CAMPAIGN WITH THE CORPORATE HEADQUARTERS, WHICH THEN
DISTRIBUTES THE PROGRAM TO THE CORPORATION'S FACILITIES THROUGHOUT THE
UNITED STATES. INFORMATION AS TO THIS PROGRAM IS DISTRIBUTED
SIMULTANEOUSLY BY THE INITIATING BSPR TO BSPR'S IN THE STATES INVOLVED,
THEIR RESPECTIVE STATE DIRECTORS, AND THEIR RESPECTIVE MARKET DIRECTORS,
WITH THE CREDIT FOR SALES WHICH OCCUR APPLIED BOTH TO THE BSPR WHO
ESTABLISHED THE CAMPAIGN AND TO THE STATE WHERE THE SALE IS MADE.
THE DIVISION HAS A CENTRAL PERSONNEL OFFICE LOCATED AT THE WASHINGTON
HEADQUARTERS. PERSONNEL POLICIES ARE ESTABLISHED AND ADMINISTERED AT
THE NATIONAL LEVEL BY THE DIRECTOR OF PERSONNEL, WHO ALSO POSSESSES
AUTHORITY TO ACT IN ALL MATTERS CONCERNING LABOR RELATIONS. PERSONNEL
RECORDS ARE LOCATED CENTRALLY IN THE NATIONAL OFFICE, AND ANY PERSONNEL
ACTIONS ARE APPROVED OR DISAPPROVED BY THIS OFFICE. ALSO, ANY
OCCASIONAL TEMPORARY ASSIGNMENT OF BSPR'S TO COVER UNFILLED VACANCIES
ARE MADE AT THE NATIONAL LEVEL. THE AREA OF CONSIDERATION FOR
PROMOTIONS IS NATIONWIDE FOR BSPR'S AND THE COMMUTING AREA FOR
CLERICALS, WHO MAY ALSO APPLY FOR POSITIONS ANYWHERE IN THE UNITED
STATES. WHILE STATE DIRECTORS INTERVIEW FOR HIRING, PERFORM STANDARD
PERFORMANCE EVALUATIONS ON EMPLOYEES, AND RECOMMEND PROMOTIONS,
TRANSFERS, DISCIPLINE, AND IN-GRADE INCREASES, THE EVIDENCE ESTABLISHES
THAT SUCH ACTIONS AND RECOMMENDATIONS ARE REVIEWED THOROUGHLY BY THEIR
MARKET DIRECTORS AND THEN ARE TRANSMITTED TO THE NATIONAL OFFICE FOR
FINAL DECISION.
TO STANDARDIZE THE METHOD BY WHICH THE WORK OF THE DIVISION IS
CARRIED OUT, EACH BSPR IS REQUIRED TO TAKE THE "PRINCIPLES OF
PROFESSIONAL SALESMANSHIP" TRAINING COURSE WHICH IS ADMINISTERED BY A
TRAINING OFFICER IN THE DIVISION'S HEADQUARTERS. THOSE BSPR'S WITH
LITTLE OR NO SALES EXPERIENCE ARE REQUIRED ALSO TO PARTICIPATE IN A MORE
EXTENSIVE TRAINING PROGRAM INVOLVING 90 DAYS OF ROTATIONAL ASSIGNMENT TO
SEVERAL STATE OFFICES. IN ADDITION, ALL BSPR'S MEET ANNUALLY FOR A
TRAINING PROGRAM WHICH IS HELD NATIONALLY IN WASHINGTON, D.C. EVERY
OTHER YEAR. IN THOSE YEARS WHEN THE TRAINING IS NOT CONDUCTED IN
WASHINGTON, D.C., IT IS HELD ON A REGIONAL BASIS.
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND APART FROM CERTAIN OTHER EMPLOYEES OF THE FIELD
OPERATIONS OF THE DIVISION. THUS, AS NOTED ABOVE, THE EVIDENCE
ESTABLISHES THAT ALL OF THE DIVISION'S FIELD EMPLOYEES HAVE A COMMON
MISSION, THAT THE CLAIMED EMPLOYEES IN THE WISCONSIN STATE OFFICE ARE,
TOGETHER WITH EMPLOYEES OF THE STATE OFFICES IN ILLINOIS AND INDIANA,
UNDER THE AUTHORITY OF THE SAME MARKET OFFICE AND MARKET DIRECTOR, THAT
THE DIVISION'S MARKET OFFICES HAVE A FUNCTIONAL INTERRELATIONSHIP IN
CONNECTION WITH THE ACCOMPLISHMENT OF THEIR INDIVIDUAL GOALS, AND THAT
THERE IS A COORDINATION AND COOPERATION AMONG BSPR'S ASSIGNED TO
DIFFERENT STATE OFFICES. FURTHER, BSPR'S ENGAGE IN TRAINING AT THE
NATIONAL LEVEL, THE DIVISION HAS CENTRALIZED PERSONNEL POLICIES, AND THE
AREA OF CONSIDERATION FOR PROMOTIONS IS NATIONWIDE FOR BSPR'S. IN MY
OPINION, THE FOREGOING EVIDENCE SHOWS THAT A FRAGMENTED UNIT LIMITED TO
ONE STATE OFFICE COULD NOT REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I FIND THAT
THE PETITIONED FOR UNIT IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND I SHALL ORDER THAT THE PETITION HEREIN BE DISMISSED.
/5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 50-8240(25) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 3, 1973
/1/ THE NAME OF THE ACTIVITY APPEARS AS CORRECTED AT THE HEARING.
/2/ IN THE DEPARTMENT OF THE TREASURY, U.S. SAVINGS BONDS DIVISION,
A/SLMR NO. 185, I FOUND THAT A UNIT OF ALL EMPLOYEES IN THE HEADQUARTERS
OFFICE OF THE U.S. SAVINGS BONDS DIVISION, WASHINGTON, D.C., WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/3/ SUBSEQUENT TO THE DECISION IN THE DEPARTMENT OF THE TREASURY,
U.S. SAVINGS BONDS DIVISION, CITED ABOVE, TWO OF THE ACTIVITY'S MARKET
OFFICES WERE CONSOLIDATED, THEREBY REDUCING THE TOTAL NUMBER FROM 12 TO
11.
/4/ MOST OF THE DIVISION'S EMPLOYEES ARE WITHIN THE SAME CIVIL
SERVICE SERIES CLASSIFICATION, GS-011. FIELD PERSONNEL WITHIN THIS
SERIES CLASSIFICATION ARE TERMED BSPR'S AND ARE GIVEN ADDITIONAL JOB
TITLES IN ACCORDANCE WITH THEIR SPECIFIC DUTIES AND RESPONSIBILITIES.
IN THE DEPARTMENT OF THE TREASURY, U.S. SAVINGS BONDS DIVISION, CITED
ABOVE, I FOUND THAT THE BSPR'S, IN CERTAIN JOB CLASSIFICATIONS, LOCATED
AT THE ACTIVITY'S HEADQUARTERS IN WASHINGTON,D.C. WERE NOT PROFESSIONAL
EMPLOYEES WITHIN THE MEANING OF THE ORDER.
/5/ IN VIEW OF THE DISPOSITION OF THIS CASE, I FIND IT UNNECESSARY TO
REACH ISSUES ON THE STATUS AND ELIGIBILITY OF CERTAIN ALLEGED
PROFESSIONAL AND CONFIDENTIAL EMPLOYEES, MANAGEMENT OFFICIALS, AND
SUPERVISORS.
3 A/SLMR 236; P. 30; 63-2903(RO); JANUARY 2, 1973.
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT BLISS POST EXCHANGE,
EL PASO, TEXAS
A/SLMR NO. 236
PURSUANT TO THE DECISION AND REMAND OF THE ASSISTANT SECRETARY IN
A/SLMR NO. 174, A SUBSEQUENT HEARING WAS HELD IN THIS CASE FOR THE
PURPOSE OF SECURING ADDITIONAL EVIDENCE CONCERNING THE APPROPRIATENESS
OF THE UNIT SOUGHT. IN THE SUBJECT CASE, THE PETITIONER, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R 14-22 (NAGE), PETITIONED
FOR A UNIT CONSISTING OF EMPLOYEES OF THE ARMY AND AIR FORCE EXCHANGE
SERVICE EMPLOYED AT THE FORT BLISS EXCHANGE AT FORT BLISS, TEXAS,
INCLUDING ITS SATELLITE EXCHANGES AT MACGREGOR RANGE, DONA ANA RANGE,
ORO GRANDE RANGE, NEW MEXICO, AND THE WILLIAM BEAUMONT GENERAL HOSPITAL,
FORT BLISS, TEXAS.
AS A RESULT OF A REORGANIZATION IN JUNE, 1972, WHITE SANDS MISSILE
RANGE, WHICH WAS INVOLVED IN THE ORIGINAL HEARING, WAS MADE A SEPARATE
COMMAND ENTITY FROM THE FORT BLISS EXCHANGE.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE NAGE, AS
AMENDED AT THE REMAND HEARING, WAS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS REGARD, HE NOTED THE UNIT INCLUDES ALL
EMPLOYEES OF THE FORT BLISS EXCHANGE, INCLUDING ITS SATELLITES; THE
CLOSE GEOGRAPHIC PROXIMITY OF THE SATELLITES AND FORT BLISS; THE
EFFECTIVE DAY-TO-DAY DECISION MAKING AUTHORITY OF THE RESIDENT MANAGER
AT THE FORT BLISS EXCHANGE; AND ALL EMPLOYEES OF THE CLAIMED UNIT ARE
SUBJECT TO SIMILAR PERSONNEL POLICIES, WAGE RATES, FRINGE BENEFITS AND
WORKING CONDITIONS. THE ASSISTANT SECRETARY ALSO NOTED PARTICULARLY
THAT IN ADDITION TO HIS AUTHORITY OVER EMPLOYEE AND PERSONNEL PRACTICES
AT THE FORT BLISS EXCHANGE, THE RESIDENT MANAGER IS RESPONSIBLE FOR
LABOR RELATIONS FOR HIS EXCHANGE AND SATELLITES; AND THAT THIS
AUTHORITY IS EXERCISED IN AN AUTONOMOUS MANNER. IN ADDITION, THE
PARTIES AGREED ON THE APPROPRIATENESS OF THE UNIT AND NO LABOR
ORGANIZATION SOUGHT TO REPRESENT THE EMPLOYEES IN A MORE COMPREHENSIVE
UNIT. AS THE UNIT FOUND APPROPRIATE SUBSTANTIALLY DIFFERED FROM THE
UNIT PETITIONED FOR ORIGINALLY, THE ASSISTANT SECRETARY DIRECTED THAT
THE ELECTION BE HELD UPON COMPLETION OF THE POSTING OF A NOTICE OF UNIT
DETERMINATION TO PERMIT INTERVENTION BY A LABOR ORGANIZATION FOR THE
SOLE PURPOSE OF APPEARING ON THE BALLOT.
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT BLISS POST EXCHANGE,
EL PASO, TEXAS
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R 14-22 /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
A HEARING WAS HELD IN THE SUBJECT CASE. THEREAFTER, ON JULY 27, 1972, I
ISSUED A DECISION AND REMAND, /2/ IN WHICH I ORDERED THAT THE SUBJECT
CASE BE REMANDED TO THE APPROPRIATE REGIONAL ADMINISTRATOR FOR THE
PURPOSE OF REOPENING THE RECORD TO SECURE ADDITIONAL EVIDENCE CONCERNING
THE APPROPRIATENESS OF THE UNIT SOUGHT. ON SEPTEMBER 21, 1972, A
FURTHER HEARING WAS HELD BEFORE HEARING OFFICER JAMES J. LEMMING. THE
HEARING OFFICER'S RULINGS MADE AT THE REOPENED HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE FACTS DEVELOPED AT
THE HEARINGS HELD BOTH PRIOR AND SUBSEQUENT TO THE REMAND, AND A BRIEF
SUBMITTED BY THE ACTIVITY, I FIND:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R 14-22, HEREIN CALLED NAGE, SEEKS AN ELECTION IN THE FOLLOWING
UNIT: "ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN
(HPP) AND COMMISSION PAY PLAN (CPP) EMPLOYEES, INCLUDING ALL OFF DUTY
MILITARY PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES, EMPLOYED BY
FORT BLISS EXCHANGE AT FORT BLISS, TEXAS, MACGREGOR RANGE, DONA ANA
RANGE, ORO GRANDE RANGE, NEW MEXICO, AND WILLIAM BEAUMONT GENERAL
HOSPITAL, FORT BLISS, TEXAS, EXCLUDING TEMPORARY FULL-TIME AND TEMPORARY
PART-TIME EMPLOYEES EMPLOYED FOR A PERIOD OF 180 DAYS OR LESS, ON-CALL
AND CASUAL EMPLOYEES, MANAGERIAL AND SUPERVISORY EMPLOYEES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, PROFESSIONAL EMPLOYEES, GUARDS AND EMPLOYEES OF THE EL PASO
AREA EXCHANGE. /3/
THE RECORD REVEALS THAT PRIOR TO JUNE 1972, THE FORT BLISS AREA
EXCHANGE FUNCTIONED AS A PART OF THE SOUTHWEST EXCHANGE REGION OF THE
WORLDWIDE ARMY AND AIR FORCE EXCHANGE SERVICE. THE WHITE SANDS MISSILE
RANGE EXCHANGE WAS A COMPONENT OF THE FORT BLISS AREA EXCHANGE. AS A
RESULT OF A REORGANIZATION IN JUNE 1972, THE SOUTHWEST EXCHANGE REGION
WAS ABOLISHED, WHITE SANDS MISSILE RANGE EXCHANGE WAS MADE A SEPARATE
ENTITY FROM THE FORT BLISS EXCHANGE /4/ AND IT, TOGETHER WITH THE FORT
BLISS EXCHANGE, THE HOLLOMAN AIR FORCE BASE EXCHANGE, AND THE KIRTLAND
AIR FORCE BASE EXCHANGE NOW COMPRISE WHAT IS KNOWN AS THE EL PASO AREA
EXCHANGE. THE EL PASO AREA EXCHANGE, IN TURN, REPORTS DIRECTLY TO THE
ALAMO EXCHANGE REGION IN SAN ANTONIO, TEXAS. ATTACHED TO, AND PART OF,
THE FORT BLISS EXCHANGE ARE ITS SATELLITES; THE MACGREGOR RANGE, DONA
ANA RANGE, ORO GRANDE RANGE AND THE WILLIAM BEAUMONT GENERAL HOSPITAL.
/5/
THE EL PASO AREA EXCHANGE IS ONE OF MANY INSTALLATIONS OPERATED ALL
OVER THE WORLD BY THE ARMY AND AIR FORCE EXCHANGE SERVICE, WHOSE
FUNCTION IS TO PROVIDE MILITARY PERSONNEL AND OTHER AUTHORIZED PATRONS
WITH CERTAIN MERCHANDISE AND SERVICES. THE EL PASO AREA EXCHANGE IS
DIRECTED BY A GENERAL MANAGER WHO, IN ADDITION TO FORT BLISS, IS
RESPONSIBLE FOR THE HOLLOMAN, WHITE SANDS, CANNON, AND KIRTLAND
EXCHANGES. THE FORT BLISS EXCHANGE IS UNDER THE OVERALL SUPERVISION OF
A RESIDENT MANAGER WHO REPORTS TO THE EL PASO AREA EXCHANGE GENERAL
MANAGER.
THE FORT BLISS EXCHANGE AND ITS SATELLITES EMPLOY A TOTAL OF
APPROXIMATELY 330 INDIVIDUALS WHO ARE ENGAGED IN RETAIL, FOOD AND
SERVICE OPERATIONS. THE FORT BLISS EXCHANGE AT FORT BLISS EMPLOYS
APPROXIMATELY 315 EMPLOYEES IN ITS VARIOUS FACILITIES, SUCH AS THE MAIN
STORE, "TOYLAND," AND THE MAIN CAFETERIA. THE SCOPE OF ACTIVITIES BY
THE SATELLITES NAMED ABOVE APPEARS TO BE LIMITED AND, AS INDICATED
ABOVE, THEY EMPLOY A TOTAL OF APPROXIMATELY 15 EMPLOYEES.
THE RESIDENT MANAGER AT FORT BLISS IS RESPONSIBLE PRIMARILY FOR THE
OPERATION OF THE FORT BLISS EXCHANGE, BUT IS CHARGED ALSO WITH THE
SUPERVISION AND MANAGEMENT OF ITS SATELLITES. THUS, WHILE THE
DAY-TO-DAY OPERATION OF THE SATELLITES IS CONDUCTED UNDER THE DIRECTION
OF AN EMPLOYEE DETAILED FROM FORT BLISS, THIS LATTER EMPLOYEE REPORTS
DIRECTLY TO THE RESIDENT MANAGER AT FORT BLISS, RECEIVES INSTRUCTIONS
AND GUIDANCE FROM THE RESIDENT MANAGER, AND HAS ONLY LIMITED AUTHORITY
IN DIRECTING THE ACTIVITIES OF SATELLITE EMPLOYEES. THE RECORD REVEALS
ALSO THAT INSPECTION TEAMS FROM FORT BLISS PERIODICALLY VISIT THE
SATELLITES FOR PURPOSES OF TRAINING AS WELL AS SUPERVISION, AND THAT THE
CLOSE GEOGRAPHIC LOCATION OF THE SATELLITES AND FORT BLISS RESULTS IN
SUBSTANTIAL CONTROL OF THE SATELLITES BEING EXERCISED BY THE RESIDENT
MANAGER OF THE FORT BLISS EXCHANGE. FURTHER, THE RESIDENT MANAGER HAS
AUTHORITY TO REVIEW THE PERFORMANCE EVALUATIONS OF EMPLOYEES ASSIGNED TO
THE FORT BLISS EXCHANGE AND ITS SATELLITES AS WELL AS ANY DISCIPLINARY
ACTIONS TAKEN BY THE VARIOUS LEVELS OF SUPERVISION. IN THIS CONNECTION,
WHILE EMPLOYEES MAY DISCUSS GRIEVANCES ON AN INFORMAL BASIS WITH THEIR
IMMEDIATE SUPERVISORS, THE RESIDENT MANAGER EXERCISES SUBSTANTIAL
AUTHORITY WITH RESPECT TO THE ADJUSTMENT OF SUCH GRIEVANCES. /6/ THE
RECORD REVEALS THAT THE RECOMMENDATIONS OF THE RESIDENT MANAGER AT FORT
BLISS WITH RESPECT TO SUCH MATTERS AS HIRING, PROMOTIONS, DISCHARGES,
AND LEAVE ARE INVARIABLY APPROVED BY THE GENERAL MANAGER OF THE EL PASO
AREA EXCHANGE. MOREOVER, THE RECORD REVEALS THE RESIDENT MANAGER IS
RESPONSIBLE FOR LABOR RELATIONS FOR HIS EXCHANGE AS WELL AS THE
SATELLITES; IS EMPOWERED WITH THE AUTHORITY TO ENTER INTO
LABOR-MANAGEMENT NEGOTIATIONS WITHOUT PRIOR APPROVAL BY THE GENERAL
MANAGER OF THE EL PASO AREA EXCHANGE, AND IS AUTHORIZED TO SIGN
NEGOTIATED AGREEMENTS.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN
THE PETITIONED FOR UNIT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. THUS, THE UNIT INCLUDES ALL EMPLOYEES
OF THE FORT BLISS EXCHANGE, INCLUDING ITS SATELLITES; ALL OF THE
EMPLOYEES IN THE CLAIMED UNIT ARE LOCATED WITHIN CLOSE GEOGRAPHIC
PROXIMITY TO EACH OTHER; THE RESIDENT MANAGER AT THE FORT BLISS
EXCHANGE HAS EFFECTIVE DAY-TO-DAY DECISION MAKING AUTHORITY AT THAT
LOCATION AS WELL AS AT THE SATELLITES; AND ALL EMPLOYEES IN THE CLAIMED
UNIT ARE SUBJECT TO SIMILAR PERSONNEL POLICIES, WAGE RATES, FRINGE
BENEFITS, AND OTHER WORKING CONDITIONS. FURTHERMORE, IT IS NOTED
PARTICULARLY THAT, IN ADDITION TO HIS AUTHORITY OVER EMPLOYEE AND
PERSONNEL PRACTICES AT THE FORT BLISS EXCHANGE, THE RESIDENT MANAGER AT
FORT BLISS IS RESPONSIBLE FOR THE LABOR RELATIONS AT HIS EXCHANGE AS
WELL AS ALL ITS SATELLITES AND THIS AUTHORITY IS EXERCISED, FOR THE MOST
PART, IN AN AUTONOMOUS MANNER. ACCORDINGLY, AND NOTING ALSO THE
PARTIES' AGREEMENT ON THE APPROPRIATENESS OF THE CLAIMED UNIT, AS
AMENDED, AND THE FACT THAT NO LABOR ORGANIZATION IS SEEKING TO REPRESENT
THE CLAIMED EMPLOYEES ON A MORE COMPREHENSIVE BASIS, I FIND THAT THE
FOLLOWING EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE
ORDER 11491:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME HOURLY PAY PLAN AND
COMMISSION PAY PLAN EMPLOYEES, INCLUDING ALL OFF-DUTY MILITARY PERSONNEL
IN EITHER OF THE FOREGOING CATEGORIES, /7/ EMPLOYED BY THE FORT BLISS
EXCHANGE AT FORT BLISS, TEXAS, INCLUDING MACGREGOR RANGE, DONA ANA
RANGE, ORO GRANDE RANGE, NEW MEXICO, AND THE WILLIAM BEAUMONT GENERAL
HOSPITAL, FORT BLISS, TEXAS, EXCLUDING OTHER EMPLOYEES OF THE EL PASO
AREA EXCHANGE, TEMPORARY FULL-TIME AND TEMPORARY PART-TIME EMPLOYEES,
ON-CALL EMPLOYEES /8/ , EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE
ORDER. /9/
IN THE CIRCUMSTANCES SET FORTH BELOW, AN ELECTION BY SECRET BALLOT
SHALL BE CONDUCTED AMONG THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE NOT
LATER THAN 60 DAYS FROM THE DATE UPON WHICH THE APPROPRIATE AREA
ADMINISTRATOR ISSUES HIS DETERMINATION WITH RESPECT TO ANY INTERVENTION
IN THIS MATTER. THE APPROPRIATE AREA ADMINISTRATOR SHALL SUPERVISE THE
ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO
VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON
FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICES WHO APPEAR IN PERSON
AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE
DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WERE
REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE SHALL
VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R 14-22, OR BY ANY OTHER LABOR ORGANIZATION WHICH, AS DISCUSSED
BELOW, INTERVENES IN THIS PROCEEDING ON A TIMELY BASIS.
INASMUCH AS THE UNIT FOUND APPROPRIATE IS SUBSTANTIALLY DIFFERENT
FROM THAT WHICH WAS PETITIONED FOR INITIALLY, I DIRECT THAT THE
ACTIVITY, AS SOON AS POSSIBLE, SHALL POST COPIES OF A NOTICE OF UNIT
DETERMINATION, WHICH SHALL BE FURNISHED BY THE APPROPRIATE AREA
ADMINISTRATOR, IN PLACES WHERE NOTICES ARE NORMALLY POSTED AFFECTING THE
EMPLOYEES IN THE UNIT I HAVE FOUND APPROPRIATE. SUCH NOTICE SHALL
CONFORM IN ALL RESPECT TO THE REQUIREMENTS OF SECTION 202.4(B) AND (C)
OF THE ASSISTANT SECRETARY'S REGULATIONS. FURTHER, ANY LABOR
ORGANIZATION WHICH SEEKS TO INTERVENE IN THIS MATTER MUST DO SO IN
ACCORDANCE WITH THE REQUIREMENTS OF SECTION 202.5 OF THE ASSISTANT
SECRETARY'S REGULATIONS. ANY INTERVENTION, OTHERWISE TIMELY, WILL BE
GRANTED SOLELY FOR THE PURPOSE OF APPEARING ON THE BALLOT IN THE
ELECTION AMONG ALL THE EMPLOYEE IN THE UNIT FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
JANUARY 2, 1973
/1/ THE NAME OF THE LABOR ORGANIZATION APPEARS AS AMENDED TO THE
HEARING.
/2/ A/SLMR NO. 174.
/3/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE REMAND HEARING.
THE UNIT AS PETITIONED FOR INITIALLY DID NOT INCLUDE EMPLOYEES AT
MACGREGOR RANGE, DONA ANA RANGE, ORO GRANDE RANGE AND THE WILLIAM
BEAUMONT GENERAL HOSPITAL.
/4/ STALLION RANGE, A SATELLITE OF THE WHITE SANDS MISSILE RANGE
EXCHANGE AT THE TIME OF ORIGINAL HEARING, HAS, SINCE THE REMAND, BEEN
CLOSED DOWN.
/5/ THE RECORD REVEALS THAT FORT BLISS IS LOCATED NEAR EL PASO,
TEXAS, AS IS THE WILLIAM BEAUMONT GENERAL HOSPITAL, WHICH IS A TENANT
FACILITY ON THE FORT BLISS GROUNDS, EMPLOYING, AMONG OTHERS, SIX
INDIVIDUALS IN A RETAIL AND FOOD OPERATION. MACGREGOR RANGE, NEW
MEXICO, A YEAR ROUND INSTALLATION EMPLOYING EIGHT INDIVIDUALS, IS
LOCATED ABOUT TWENTY-FIVE MILES NORTHEAST OF FORT BLISS. DONA ANA
RANGE, NEW MEXICO, A SEASONAL OPERATION (SUMMER ONLY), IS LOCATED ABOUT
FIFTEEN MILES WEST OF MACGREGOR RANGE. ORO GRANDE RANGE, NEW MEXICO, IS
A YEAR-ROUND INSTALLATION STAFFED BY A SINGLE EMPLOYEE DETAILED FROM
MACGREGOR RANGE AND IS LOCATED TWENTY MILES NORTH OF MACGREGOR RANGE.
/6/ WHEN GRIEVANCES REACH A FORMAL STAGE THEY MUST BE DIRECTED TO THE
GENERAL MANAGER AT THE EL PASO AREA EXCHANGE.
/7/ THE RECORD REVEALS THAT THERE ARE OFF-DUTY MILITARY PERSONNEL
WORKING AS REGULAR PART-TIME EMPLOYEES AT THE FORT BLISS EXCHANGE. AS I
STATED IN ARMY AND AIR FORCE EXCHANGE SERVICE, FORT HUACHUCA EXCHANGE
SERVICE, FORT HUACHUCA, ARIZONA, A/SLMR NO. 167, OFF-DUTY MILITARY
PERSONNEL WHO OTHERWISE QUALIFY FOR INCLUSION IN A UNIT FOUND
APPROPRIATE AND WHO WORKS A SUFFICIENT NUMBER OF HOURS TO BE CLASSIFIED
AS EITHER REGULAR FULL-TIME OR REGULAR PART-TIME MAY NOT BE EXCLUDED
FROM THE UNIT ON THE BASIS OF AGENCY REGULATIONS WHICH WOULD
AUTOMATICALLY EXCLUDE THEM FROM BARGAINING UNITS.
/8/ THE RECORD DOES NOT INDICATE WHETHER THE ACTIVITY EMPLOYS OR
UTILIZES "CASUAL" EMPLOYEES. ACCORDINGLY, I SHALL MAKE NO FINDINGS AS
TO WHETHER SUCH EMPLOYEES PROPERLY SHOULD BE EXCLUDED FROM THE UNIT.
CF. ALASKAN EXCHANGE SYSTEM, BASE EXCHANGE, FORT GREELY, ALASKA, A/SLMR
NO. 33; ARMY AND AIR FORCE EXCHANGE SERVICE, FORT HUACHUCA EXCHANGE
SERVICE, FORT HUACHUCA, ARIZONA, CITED ABOVE.
/9/ I AM ADVISED ADMINISTRATIVELY THAT THE NAGE HAS SUBMITTED A
SHOWING OF INTEREST WHICH IS IN EXCESS OF THIRTY PERCENT IN THE UNIT
FOUND APPROPRIATE.
3 A/SLMR 235; P. 23; CASE NO. 63-3268 (RO); JANUARY 2, 1973.
U.S. DEPARTMENT OF THE AIR FORCE,
HOLLOMAN AIR FORCE BASE,
ALAMOGORDO, NEW MEXICO
A/SLMR NO. 235
THE PETITIONER, HOLLOMAN AIR FORCE BASE FIGHTERS LOCAL F-164,
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, ALF-CIO (IAFF) SOUGHT TO
REPRESENT A UNIT OF FIRE FIGHTERS INCLUDING THOSE CLASSIFIED AS
SUPERVISORY FIRE FIGHTERS (GENERAL (GS-7) AND (GS-8), COMMONLY REFERRED
TO AS STATION CAPTAINS AND SENIOR STATION CAPTAINS RESPECTIVELY. THE
INCUMBENT INTERVENOR, LOCAL 1031, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., (NFFE) ASSERTED THAT AN AGREEMENT BAR EXISTED AT THE
TIME OF IAFF'S PETITION. ALTHOUGH THE PARTIES DID NOT CONTEST THE
APPROPRIATIONS OF THE CLAIMED UNIT, THE ACTIVITY AND NFFE CONTENDED, IN
OPPOSITION TO IAFF, THAT THE GS-7 AND GS-8 CAPTAINS BE EXCLUDED AS
SUPERVISORS.
WITH REGARD TO THE ALLEGED AGREEMENT BAR, THE RECORD REVEALED THAT
IAFF FILED ITS PETITION DURING THE PERIOD OF A 60-DAY EXTENSION OF THE
BASIC AGREEMENT BETWEEN NFFE AND THE ACTIVITY. BASED ON THE FACT THAT
THE RECORD INDICATED THAT THE 60-DAY EXTENSION AGREEMENT WAS INTENDED TO
BE AN INTERIM ARRANGEMENT DURING THE PERIOD OF NEGOTIATIONS FOR A NEW
OVERALL AGREEMENT, THE ASSISTANT SECRETARY FOUND IAFF'S PETITION TO BE
FILED TIMELY. IN THE OPINION OF THE ASSISTANT SECRETARY, SUCH A
TEMPORARY, STOPGAP ARRANGEMENT DID NOT CONSTITUTE A FINAL, FIXED TERM
AGREEMENT AND LACKED THE STABILITY SOUGHT TO BE ACHIEVED BY THE
AGREEMENT BAR PRINCIPLE.
WITH RESPECT TO THE ELIGIBILITY ISSUE, THE ASSISTANT SECRETARY FOUND
THE STATION CAPTAINS AND SENIOR STATION CAPTAINS TO BE "SUPERVISORS"
WITHIN THE MEANING OF THE ORDER AND, THEREFORE, EXCLUDED FROM THE
CLAIMED UNIT. BASED ON THE EVIDENCE IN THE RECORD, HE FOUND THAT
CAPTAINS POSSESS AND EXERCISE AUTHORITY, IN THE INTEREST OF THE ACTIVITY
INVOLVED, TO EVALUATE EFFECTIVELY EMPLOYEES AND SELECT CANDIDATES TO BE
PROMOTED AND THAT THEY USE INDEPENDENT JUDGMENT IN THE EXERCISE OF THAT
AUTHORITY. IN THIS CONNECTION, THE EVIDENCE INDICATED THAT CAPTAINS
USED THEIR OWN DISCRETION IN EVALUATING THEIR SUBORDINATES; THAT THEIR
EVALUATION WAS A SIGNIFICANT PORTION OF THE TOTAL INPUT OF CRITERIA USED
TO RANK ELIGIBLE EMPLOYEES AS CANDIDATES FOR PROMOTION; AND THAT THEIR
INDEPENDENT SELECTIONS FROM THE LIST OF CANDIDATES RESULTED IN
PROMOTIONS.
MOREOVER, THE ASSISTANT SECRETARY NOTED THAT THE RECORD REVEALED THAT
IN 3 OF THE 4 STATIONS, CAPTAINS WERE THE HIGHEST RANKING FULL-TIME
EMPLOYEE AT THE STATION AND THAT IF THE CAPTAINS WERE NOT EXCLUDED FROM
THE UNIT AS SUPERVISORS, THEN THE RESULTING SUPERVISOR-EMPLOYEE RATIO
WOULD BE 3 TO APPROXIMATELY 133 WHICH, IN HIS VIEW, WOULD BE
UNREASONABLE PARTICULARLY IN VIEW OF THE DISTANCES BETWEEN THE STATIONS
AND THE OFFICES OF THE FIRE CHIEF AND HIS ASSISTANTS. ON THE OTHER
HAND, IF THE SEVEN CAPTAINS INVOLVED HEREIN WERE EXCLUDED AS
SUPERVISORS, THE RESULTING SUPERVISOR-EMPLOYEE RATIO WOULD RESULT IN A
MORE REASONABLE RATIO OF 10 SUPERVISORS TO APPROXIMATELY 126 EMPLOYEES
OR 1 SUPERVISOR FOR EVERY 12.6 EMPLOYEES.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT AN
ELECTION BE HELD IN A UNIT OF ALL CIVILIAN PERSONNEL, EXCLUDING, AMONG
OTHERS, EMPLOYEES CLASSIFIED AS SUPERVISORY FIRE FIGHTERS (GENERAL)
(GS-7) AND (GS-8).
U.S. DEPARTMENT OF THE AIR FORCE,
HOLLOMAN AIR FORCE BASE,
ALAMOGORDO, NEW MEXICO
AND
HOLLOMAN AIR FORCE BASE
FIRE FIGHTERS LOCAL F-164,
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, AFL-CIO
AND
LOCAL 1031,
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, IND.
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HIRAM W. JOHNSON.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FROM FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PETITIONER, HOLLOMAN AIR FORCE BASE FIGHTERS LOCAL 4-164, INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, HEREIN CALLED IAFF, AND THE
INTERVENOR, LOCAL 1031, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND.,
HEREIN CALLED NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IAFF SEEKS AN ELECTION IN A UNIT OF ALL CIVILIAN PERSONNEL
EMPLOYED IN THE FIRE DEPARTMENT, HOLLOMAN AIR FORCE BASE, NEW MEXICO,
EXCLUDING MANAGERS, SUPERVISORS, GUARDS, PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND THE CLERICAL ASSISTANT TO THE FIRE CHIEF,
GS-301-6. /1/
WHILE NOT CONTESTING THE APPROPRIATENESS OF THE CLAIMED UNIT, THE
ACTIVITY AND THE NFFE CONTEND THAT EMPLOYEES CLASSIFIED AS SUPERVISORY
FIRE FIGHTER (GENERAL) (GS-8) AND SUPERVISORY FIRE FIGHTER (GENERAL)
(GS-7), COMMONLY REFERRED TO AS SENIOR STATION CAPTAINS AND STATION
CAPTAINS, RESPECTIVELY, ARE SUPERVISORS WITHIN THE MEANING OF SECTION
2(C) OF THE EXECUTIVE ORDER AND SHOULD BE EXCLUDED FROM THE UNIT.
ADDITIONALLY, THE NFFE CONTENDS THAT THE IAFF'S PETITION SHOULD BE
DISMISSED ON THE BASIS THAT AN AGREEMENT BAR EXISTED AT THE TIME OF
FILING.
ALLEGED AGREEMENT BAR
THE NFFE CLAIMS THAT THE IAFF'S PETITION WAS UNTIMELY IN THAT IT WAS
NOT FILED DURING THE "OPEN PERIOD" PROVIDED FOR IN SECTION 202.3(C) OF
THE ASSISTANT SECRETARY'S REGULATIONS BUT, INSTEAD, WAS FILED DURING THE
PERIOD OF A 60-DAY EXTENSION OF THE BASIC AGREEMENT BETWEEN THE NFFE AND
THE ACTIVITY. /2/ THE IAFF ARGUES THAT NO VALID BAR TO ITS PETITION
EXISTED INASMUCH AS (1) THE BASIC AGREEMENT HAD TERMINATED BY ITS OWN
TERMS, AND (2) EVEN IF THE BASIC AGREEMENT HAD BEEN EXTENDED FOR 60
DAYS, THAT EXTENSION EXPIRED AND, THEREAFTER, NO NEW EXTENTION OR BASIC
AGREEMENT WAS EXECUTED BY THE PARTIES. THE ACTIVITY MAINTAINED A
"NEUTRAL" POSITION AS TO THE EXISTENCE OF AN AGREEMENT BAR.
THE EVIDENCE ESTABLISHES THAT THE ACTIVITY AND THE NFFE EXECUTED A
NEGOTIATED AGREEMENT WHICH BECAME EFFECTIVE ON DECEMBER 8, 1969. BY ITS
TERMS, THE AGREEMENT WAS TO REMAIN IN EFFECT FOR ONE YEAR UNTIL DECEMBER
7, 1970, AND WAS SUBJECT TO AUTOMATIC RENEWAL FOR "ONE ADDITIONAL" YEAR
IF NEITHER PARTY GAVE WRITTEN NOTICE OF ITS DESIRE TO TERMINATE OR
MODIFY THE AGREEMENT. /3/
ON NOVEMBER 12, 1971, THE PRESIDENT OF NFFE, LOCAL 1031 WROTE TO THE
ACTIVITY REQUESTING AN EXTENSION OF THE AGREEMENT FOR 90 DAYS FOR THE
PURPOSE OF RENEGOTIATION. ALTHOUGH THE ACTIVITY REJECTED THE PROPOSED
90-DA6 EXTENSION PERIOD ON THE BASIS THAT SUCH EXTENSION RAISED A LEGAL
QUESTION, ON DECEMBER 2, 1971, A 60-DAY EXTENSION OF THE BASIC AGREEMENT
WAS EXECUTED BY THE PARTIES. THE EXTENSION AGREEMENT PROVIDED, IN PART:
"NEGOTIATIONS HAVE BEGUN ON A NEW CONTRACT. THESE NEGOTIATIONS WILL BE
COMPLETED AND THE NEW AGREEMENT FORWARDED TO HQ USAF FOR APPROVAL PRIOR
TO THE END OF THE 60-DAY PERIOD." /4/ DURING THIS 60-DAY EXTENSION
PERIOD THE IAFF FILED AND AMENDED ITS PETITION IN THE SUBJECT CASE ON
JANUARY 13 AND 25, 1972, RESPECTIVELY.
I FIND, BASED ON THE FOREGOING CIRCUMSTANCES, THAT THE PETITION FILED
BY THE IAFF ON JANUARY 13, AND AMENDED ON JANUARY 25, 1972, WAS TIMELY.
THUS, THE RECORD INDICATES CLEARLY THAT THE 60-DAY EXTENSION AGREEMENT
WAS INTENDED TO BE AN INTERIM ARRANGEMENT DURING THE PERIOD OF
NEGOTIATIONS FOR A NEW OVERALL AGREEMENT BETWEEN THE ACTIVITY AND THE
NFFE. I REJECT THE NFFE'S CONTENTION THAT SUCH AN EXTENSION PERIOD
SHOULD BE TREATED AS AN "INSULATED" PERIOD THEREBY BARRING THE IAFF'S
PETITION IN THIS MATTER. IN MY VIEW, WHERE, AS HERE, PARTIES EXECUTE AN
EXTENSION AGREEMENT TO SERVE MERELY AS AN INTERIM ARRANGEMENT DURING A
PERIOD OF FURTHER NEGOTIATIONS, SUCH AN AGREEMENT MAY NOT OPERATE AS AN
AGREEMENT BAR TO A PETITION WHICH OTHERWISE IS FILED TIMELY. THUS, SUCH
A TEMPORARY, STOPGAP ARRANGEMENT DOES NOT CONSTITUTE A FINAL, FIXED TERM
AGREEMENT AND LACKS THE STABILITY SOUGHT TO BE ACHIEVED BY THE AGREEMENT
BAR PRINCIPLE. UNDER THESE CIRCUMSTANCES, I FIND THAT THE IAFF'S
PETITION IN THIS MATTER WAS FILED TIMELY.
ELIGIBILITY ISSUE
AS STATED ABOVE, THE ACTIVITY AND THE NFFE CONTEND THAT SENIOR
STATION CAPTAINS (GS-8) AND STATION CAPTAINS (GS-7) ARE SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF EXECUTIVE ORDER 11491 AND SHOULD
BE EXCLUDED FROM THE CLAIMED UNIT. THE NFFE ASSERTS ALSO THAT IN
NOVEMBER 1969, WHEN THE NFFE WAS GRANTED EXCLUSIVE RECOGNITION FOR THE
UNIT NOW SOUGHT BY THE IAFF, CAPTAINS WERE EXCLUDED AS SUPERVISORS IN
ACCORDANCE WITH SECTION 6(A) OF EXECUTIVE ORDER 10988 AND THAT THE
DUTIES AND RESPONSIBILITIES OF CAPTAINS AT THE ACTIVITY HAVE NOT CHANGED
IN THE INTERIM. THE IAFF, ON THE OTHER HAND, SEEKS TO INCLUDE BOTH
SENIOR STATION CAPTAINS AND STATION CAPTAINS IN ITS CLAIMED UNIT BASED
UPON THE ASSISTANT SECRETARY'S DETERMINATIONS IN PRIOR DECISIONS IN
WHICH FIRE DEPARTMENT EMPLOYEES, CLASSIFIED AS STATION OR "HOUSE"
CAPTAINS (GS-7 AND GS-6), LIEUTENANTS (GS-6), AND CREW CHIEFS (GS-6)
WERE FOUND NOT TO BE SUPERVISORS WITHIN THE MEANING OF THE ORDER. /5/
THE FIRE DEPARTMENT (OR FIRE PROTECTION BRANCH) OF THE 49TH CIVIL
ENGINEERING SQUADRON AT HOLLOMON AIR FORCE BASE IS RESPONSIBLE FOR
STRUCTURAL AND AIRCRAFT FIRE PREVENTION AND PROTECTION. THE BRANCH HAS
A TOTAL COMPLEMENT OF APPROXIMATELY 136 INDIVIDUALS OF WHOM
APPROXIMATELY 80 ARE CIVILIANS AND THE REMAINING ARE MILITARY PERSONNEL.
/6/ IT IS HEADED BY THE FIRE CHIEF (GS-12). REPORTING DIRECTLY TO THE
CHIEF ARE TWO ASSISTANT CHIEFS (GS-10) AND ONE CLERICAL ASSISTANT
(GS-6). THE BRANCH IS COMPOSED OF THE TECHNICAL SERVICE SECTION AND THE
OPERATIONS SECTION. THE TECHNICAL SERVICES SECTION HAS 7 FIRE
PROTECTION INSPECTORS (GS-7) AND THE OPERATIONS SECTION HAS 2 SENIOR
STATION CAPTAINS (GS-8), 5 STATION CAPTAINS (GS-7), 14 CREW CHIEFS
(GS-6), 30 DRIVER/OPERATORS (GS-5), 16 FIRE FIGHTERS (GS-4), AND 2 ALARM
ROOM OPERATORS (GS-4 AND GS-3). FIRE FIGHTING PERSONNEL ARE DIVIDED
INTO TWO SHIFTS WITH EACH SHIFT WORKING A 72-HOUR WEEK; 24 HOURS ON AND
24 HOURS OFF.
THERE ARE FOUR FIRE STATIONS OPERATING WITHIN THE FIRE DEPARTMENT,
STATION NOS. 1, 2, AND 3 ARE PHYSICALLY LOCATED ON THE PREMISES OF
HOLLOMAN AIR FORCE BASE AND ARE SEPARATED BY DISTANCES RANGING FROM 3 TO
8 MILES. STATION NO. 4, REFERRED TO AS THE SACRAMENTO PEAK (OR "SAC
PEAK") STATION, IS LOCATED 45 MILES FROM THE ACTIVITY AT SUN SPOT, NEW
MEXICO.
STATION NO. 1 IS THE LARGEST OF THE FIRE STATIONS AND IS HOUSED IN
BUILDING NO. 304 WHICH IS LOCATED IN THE "MAIN AREA" OF THE ACTIVITY.
ITS FACILITIES CONSIST OF A BUNK ROOM, LATRINES AND SHOWERS, KITCHEN,
DAY ROOM, DINING ROOM, ALARM ROOM, HOSE TOWER, STORAGE AREAS, AND TWO
APPARATUS ROOMS. IT ALSO INCLUDES A SEPARATE OFFICE, LATRINE, AND BUNK
ROOM FOR THE TWO ASSISTANT CHIEFS. THE RECORD REVEALS THAT WHILE A
SEPARATE OFFICE IS MAINTAINED FOR THE TWO SENIOR CAPTAINS AT STATION NO.
1, THEY SHARE THE SAME EATING, SLEEPING, SHOWER, LATRINE, AND LOCKER
FACILITIES WHICH ARE USED BY ALL PERSONNEL. THE PERSONNEL COMPLEMENT
FOR THE "A" SHIFT AT STATION NO. 1 INCLUDES 1 SENIOR CAPTAIN (GS-8), 12
CIVILIAN PERSONNEL, AND 6 MILITARY PERSONNEL. THE "B" SHIFT INCLUDES
THE OTHER SENIOR CAPTAIN (GS-8) AT STATION NO. 1, 10 CIVILIAN PERSONNEL,
AND 6 MILITARY PERSONNEL. /7/
STATIONS NOS. 2 AND 3 ARE PHYSICALLY COMPARABLE TO STATION NO. 1
EXCEPT THAT THEY EACH HAVE ONLY ONE APPARATUS ROOM, AND THE ALARM ROOM
AND THE STATION CAPTAIN'S OFFICE ARE COMBINED. THE "A" SHIFT OF STATION
NO. 2 IS HEADED BY A MILITARY NONCOMMISSIONED OFFICER (NCO) AND INCLUDES
11 CIVILIAN PERSONNEL AND 6 MILITARY PERSONNEL. THE "B" SHIFT INCLUDES
1 STATION CAPTAIN (GS-7), 10 CIVILIAN PERSONNEL, AND 8 MILITARY
PERSONNEL,. THE PERSONNEL COMPLEMENT FOR THE "A" AND THE "B" SHIFT AT
STATION NO. 3 EACH INCLUDES 1 STATION CAPTAIN (GS-7), 6 CIVILIAN
PERSONNEL AND 4 MILITARY PERSONNEL. /8/ AS IN THE CASE OF STATION NO.
1, THE STATION CAPTAINS AT STATION NOS. 2 AND 3 SHARE THE SAME EATING,
SLEEPING, SHOWER, LATRINE, AND LOCKER FACILITIES WHICH ARE USED BY ALL
PERSONNEL.
STATION NO. 4, OR THE "SAC PEAK" STATION, IS A ONE-STALL FACILITY
WITH ONE FIRE TRUCK. THE STATION'S PERSONNEL COMPLEMENT FOR EACH SHIFT
INCLUDES ONE STATION CAPTAIN (GS-7) AND TWO CIVILIANS. THE STATION
PROTECTS THE SACRAMENTO PEAK OBSERVATORY, AN AIR FORCE FACILITY ENGAGED
IN THE STUDY OF THE SUN. THE RECORD INDICATES THAT TRAVEL TIME BETWEEN
THE BASE AND THE SAC PEAK STATION AVERAGES APPROXIMATELY ONE HOUR DURING
THE SUMMER AND TWO HOURS DURING THE WINTER MONTHS DUE TO THE HEAVY
SNOWFALLS AND MOUNTAINOUS TERRAIN. THE PARTIES STIPULATED THAT BECAUSE
OF THE REMOTENESS OF THE SITE, NEITHER THE FIRE CHIEF NOR THE ASSISTANT
CHIEFS CAN RESPOND IN TIME TO AN EMERGENCY AT THIS LOCATION. ALSO, IT
WAS STIPULATED THAT THE RESPONSIBILITIES OF THE STATION CAPTAINS AT SAC
PEAK ARE THE SAME AS THOSE AT HOLLOMAN AIR FORCE BASE FOR THE STATION
CAPTAINS,GS-7.
THE FIRE CHIEF IS THE ADMINISTRATIVE AND TECHNICAL HEAD OF THE FIRE
PROTECTION BRANCH OF THE ACTIVITY AND IS CHARGED WITH ITS OVERALL
MANAGEMENT AND RESPONSIBILITY. IN THIS REGARD, HE IS RESPONSIBLE FOR
OBTAINING THE PROPER FIRE FIGHTING EQUIPMENT AND PERSONNEL TO MAN THE
EQUIPMENT. HE PREPARES AND ISSUES BRANCH OPERATING INSTRUCTIONS WHICH
SET FORTH THE DUTIES AND RESPONSIBILITIES OF BRANCH PERSONNEL, THE DAILY
ROUTINES, AND THE ESTABLISHED FIRE FIGHTING PROCEDURES FOR RESPONDING TO
EMERGENCIES. THE CHIEF WORKS A 40-HOUR WEEK, 8 HOURS PER DAY, MONDAY
THROUGH FRIDAY. IN CARRYING OUT HIS RESPONSIBILITIES, HE VISITS EACH
FIRE STATION ON THE BASE ONCE A MONTH. HIS OFFICE IS LOCATED IN A
BUILDING APPROXIMATELY TWO BLOCKS AWAY FROM FIRE STATION NO. 1. LOCATED
IN THE SAME BUILDING ARE THE FIRE CHIEF'S CLERICAL ASSISTANT, PERSONNEL
OF THE TECHNICAL SERVICES SECTION, INCLUDING THE FIRE PROTECTION
INSPECTORS, THE RANKING MILITARY NCO ASSIGNED TO THE BRANCH AND THE
EXTINGUISHER MAINTENANCE FACILITY.
THE TWO ASSISTANT CHIEFS, HOUSED AT STATION NO. 1, ROTATE 24-HOUR
SHIFTS. THE ASSISTANT CHIEF ON DUTY IS RESPONSIBLE FOR THE EFFICIENT
OPERATION OF THE FIRE STATIONS AND, IN ADDITION, ASSUMES THE DUTIES OF
THE FIRE CHIEF IN THE LATTER'S OFF-DUTY HOURS. FURTHER, THE ASSISTANT
CHIEF ON DUTY IS REQUIRED TO VISIT THE BASE FIRE STATIONS ONCE EACH
24-HOUR SHIFT, AND HE RESPONDS TO ALL EMERGENCIES AND AUTOMATICALLY
BECOMES FIRE OFFICER IN CHARGE UPON HIS ARRIVAL AT THE SCENE OF AN
EMERGENCY.
THE EVIDENCE DISCLOSES THAT SENIOR CAPTAINS (GS-8) AND STATION
CAPTAINS (GS-7) HAVE EXACTLY THE SAME DUTIES AND RESPONSIBILITIES EXCEPT
FOR THE FORMER'S ADDED RESPONSIBILITY TO ACT IN THE CAPACITY OF THE
ASSISTANT CHIEF WHEN HE IS OFF DUTY FOR ANY REASON. /9/ CAPTAINS /10/
SERVE AS THE OPERATIONAL HEAD OF THE FIRE STATION FOR THE 24-HOUR SHIFT
THEY ARE ON DUTY. IN THIS CONNECTION, THEY ARE RESPONSIBLE FOR
EFFECTUATING THE POLICIES AND PROCEDURES APPLICABLE TO THEIR STATION AS
SET FORTH IN THE BRANCH OPERATING INSTRUCTIONS.
ON A DAILY BASIS, EACH CAPTAIN ON DUTY PREPARES THE WORK AND CREW
ASSIGNMENTS WHICH ARE POSTED ON THE STATION BULLETIN BOARD AND COVER
THAT PARTICULAR 24-HOUR SHIFT. THESE ASSIGNMENTS INCLUDE IN-HOUSE
DETAILS REQUIRED FOR THE MAINTENANCE AND CLEANING OF THE STATION,
POSITION ASSIGNMENTS TO PARTICULAR EQUIPMENT, AND STANDBY DUTY. IN
MAKING SUCH ASSIGNMENTS, THE CAPTAIN TAKES INTO ACCOUNT SUCH FACTORS AS
THE NEED TO ROTATE PERSONNEL, ABSENCES DUE TO SICKNESS OR EMERGENCY
LEAVE, OR WHETHER A FULL CREW IS REQUIRED. BASED ON HIS ASSESSMENT OF
THESE FACTORS, THE CAPTAIN MAY "CROSS-MAN" PERSONNEL ON APPARATUS IN
ORDER TO BALANCE MANPOWER NEEDS.
IN RESPONDING TO EMERGENCIES, FIRE FIGHTING PERSONNEL FOLLOW
PUBLISHED INSTRUCTIONS WHICH INDICATE THE APPARATUS THAT IS TO RESPOND
TO A GIVEN ALARM AND HOW THE ATTACK ON THE FIRE IS TO BE CONDUCTED.
/11/ EACH CAPTAIN INVOLVED IN AN EMERGENCY RIDES WHATEVER EQUIPMENT IS
CALLED OUT. HIS RESPONSIBILITY AS SENIOR OFFICER AT THE SCENE OF THE
EMERGENCY IS TO OVERSEE OPERATIONS UNTIL THE ASSISTANT CHIEF ARRIVES,
AND IF DEEMED NECESSARY, TO CALL OUT ADDITIONAL APPARATUS. ONCE THE
ASSISTANT CHIEF ARRIVES, HE IS BRIEFED BY THE CAPTAIN ON WHAT HAS
OCCURRED, WHAT EQUIPMENT IS ON THE SCENE, AND WHAT, IF ANY, APPARATUS
HAS BEEN ORDERED AND IS ON THE WAY. THEREAFTER, THE CAPTAIN TAKES
ORDERS FROM THE ASSISTANT CHIEF AND TRANSMITS SUCH ORDERS TO THE CREW
CHIEF. /12/
THE RECORD REVEALS THAT A DAILY TRAINING SCHEDULE IS PREPARED BY THE
BRANCH'S NCO TRAINING OFFICER AND IS DISTRIBUTED OVER THE CHIEF'S
SIGNATURE TO ALL STATIONS ON A SEMI-MONTHLY BASIS. THE SCHEDULE IS
BASED UPON MINIMUM REQUIREMENTS ESTABLISHED BY THE AIR FORCE AND
TACTICAL AIR COMMAND FOR DEVELOPING FIRE FIGHTING PROFICIENCY. IT
DESIGNATES THE SUBJECT TO BE COVERED, SPECIFIES WHETHER THE INSTRUCTION
IS TO BE GIVEN BY THE ASSISTANT CHIEF, OR CAPTAIN, OR CREW CHIEF, AND
SETS FORTH TRAINING MANUAL REFERENCES TO BE USED. HOWEVER, IT APPEARS
THAT CAPTAINS MAY EXERCISE THEIR OWN DISCRETION AND SUBSTITUTE OTHER
MANUALS. IN ADDITION, THE RECORD REVEALS THAT CAPTAINS IN EACH STATION
SCHEDULE TRAINING AND TRAINING EXERCISES FOR STATION PERSONNEL WHICH
THEY MAY CONDUCT PERSONALLY OR DELEGATE TO CREW CHIEFS,
DRIVER/OPERATORS, OR FIRE FIGHTERS AS THE OCCASION REQUIRES.
THE EVIDENCE DISCLOSES THAT CAPTAINS, TOGETHER WITH ASSISTANT CHIEFS,
ATTEND WEEKLY STAFF MEETINGS HELD BY THE CHIEF. THESE MEETINGS SERVE TO
INFORM THE CHIEF OF OPERATIONAL, POLICY OR PERSONNEL PROBLEMS WHICH HAVE
ARISEN. AT SUCH MEETINGS THE CHIEF, ON OCCASION, DELEGATES CERTAIN
AUTHORITY TO THE CAPTAINS IN THE ABSENCE OF A PRESCRIBED DELEGATION OF
AUTHORITY.
THE UNIFORMS OF CAPTAINS IN CERTAIN INSTANCES, ARE DISTINGUISHABLE
FROM THOSE WORN BY PERSONNEL OF HIGHER AND LOWER RANK. THE CHIEFS AND
ASSISTANT CHIEFS WEAR WHITE HATS. CAPTAINS WEAR BLUE HATS, AS DO OTHER
PERSONNEL, BUT THEIR HATS HAVE SILVER BRAID. ALL PERSONNEL, EXCEPT THE
CHIEF AND ASSISTANTS, WEAR THE SAME BADGE. FOR SUMMER DRESS, ALL
PERSONNEL WEAR DARK BLUE PANTS. THE CHIEF, ASSISTANTS AND CAPTAINS WEAR
WHITE SHIRTS, WHILE THE REMAINING PERSONNEL WEAR BLUE SHIRTS. ASSISTANT
CHIEFS AND CAPTAINS WEAR KHAKI WORK UNIFORMS, WHILE OTHER SUBORDINATE
PERSONNEL WEAR A BLUE OR GRAY UNIFORM.
THE RECORD INDICATES THAT CAPTAINS HAVE NO AUTHORITY TO HIRE,
TRANSFER, LAYOFF, RECALL OR DISCHARGE EMPLOYEES. NOR DO THEY HAVE
AUTHORITY TO GRANT OVERTIME, CERTIFY JOB DESCRIPTIONS OR SUBORDINATE OR
HANDLE FORMAL WRITTEN GRIEVANCES. WHILE IT APPEARS THAT CAPTAINS HAVE
AUTHORITY TO DELAY OR DENY STEP INCREASES, THERE IS NO EVIDENCE THAT
SUCH AUTHORITY HAS BEEN EXERCISED. ON THE OTHER HAND, CAPTAINS HAVE
AUTHORITY TO RECOMMEND PERSONNEL FOR AWARDS AND HAVE EXERCISED SUCH
AUTHORITY. /13/ FURTHER, THEY HAVE EXERCISED THEIR AUTHORITY TO DETAIL
FIRE FIGHTERS FROM ONE STATION TO ANOTHER FOR ONE 24-HOUR SHIFT TO MEET
MANPOWER REQUIREMENTS. WITH REGARD TO DISCIPLINARY MATTERS, WHILE THE
TESTIMONY INDICATES THAT CAPTAINS HAVE AUTHORITY TO MAKE ORAL
ADMONISHMENTS, ISSUE WRITTEN REPRIMANDS, AND OTHER SUSPENSIONS OF UP TO
FIVE DAYS, IT APPEARS THAT ONLY LETTERS OF REPRIMAND CONCERNING EMPLOYEE
INDEBTEDNESS HAVE BEEN ISSUED BY CAPTAINS.
THE TESTIMONY REVEALS THAT CAPTAINS ASSIST THE ASSISTANT CHIEF IN
PREPARING THE OVERALL SCHEDULE FOR THE YEAR BASED UPON EMPLOYEE LEAVE
REQUESTS SUBMITTED AT THE START OF EACH YEAR AND CONSISTENT WITH
ACTIVITY'S REGULATIONS REGARDING THE NUMBER OF STATION PERSONNEL PER
SHIFT WHO MAY BE ON ANNUAL LEAVE AT THE SAME TIME. ALSO, CAPTAINS MAY
RECOMMEND APPROVAL OR DISAPPROVAL OF LEAVE REQUEST FORMS, BUT THE
ASSISTANT CHIEF MUST SIGN THE FORM. CONFLICTING EMPLOYEE PREFERENCES
GENERALLY ARE RESOLVED MUTUALLY, WITH CAPTAINS SERVING AS "MEDIATORS."
THE RECORD REVEALS THAT CAPTAINS HAVE AUTHORIZED EMERGENCY LEAVE
WHENEVER REQUESTED.
THE EVIDENCE INDICATES THAT CAPTAINS ARE INVOLVED IN EVALUATING THE
PERFORMANCE OF FIRE FIGHTERS ASSIGNED TO THEIR RESPECTIVE SHIFTS. THUS,
THE CAPTAINS ARE REQUIRED TO COMPLETE A "SUPERVISOR'S APPRAISAL OF
EMPLOYEE'S CURRENT PERFORMANCE." THIS APPRAISAL FORM LISTS 15 DIFFERENT
ELEMENTS ON WHICH THE EMPLOYEE MAY BE EVALUATED (E.G., PRODUCTIVITY,
ACCEPTABILITY OF WORK, WILLINGNESS TO FOLLOW INSTRUCTIONS AND CARRY OUT
DECISIONS, EFFECTIVENESS OF SKILLS, WORKING RELATIONSHIPS, PRACTICAL
JUDGMENT IN MEETING WORK PROBLEMS, ABILITY TO UNDERSTAND, DEVELOP AND
MOTIVATE PEOPLE, ABILITY TO PLAN AHEAD AN ANTICIPATE NEEDS, ETC.).
BEFORE EXECUTING THE FORM, THE CAPTAIN REVIEWS ALL ELEMENTS AND SELECTS
THOSE WHICH BEST DESCRIBE THE DUTIES PERFORMED BY THE EMPLOYEE WHOSE
PERFORMANCE HE IS APPRAISING. A MINIMUM OF 7 ELEMENTS MUST BE SELECTED
ALTHOUGH AS MANY AS ARE RELEVANT SHOULD BE USED, ACCORDING TO THE FORM'S
INSTRUCTIONS. IN EXECUTING THIS FORM, THE EVIDENCE ESTABLISHES THAT THE
CAPTAIN MUST GRADE AN EMPLOYEE ON A POINT SCALE RANGING FROM 0 TO 5.
UPON COMPLETION OF THE FORM, THE CAPTAIN SIGNS OFF AS "IMMEDIATE
SUPERVISOR" AND SENDS THE FORM TO THE ASSISTANT CHIEF FOR REVIEW AND
SIGNATURE. THE FORM'S INSTRUCTIONS INDICATE THAT IF THE ASSISTANT CHIEF
WISHES TO MAKE A CHANGE, HE MUST DISCUSS IT WITH THE CAPTAIN AND IT MUST
BE AGREED TO BY THE LATTER. HOWEVER, RECORD TESTIMONY INDICATES THERE
HAVE BEEN NO INSTANCES WHEN THE ASSISTANT CHIEF DISCUSSED AN APPRAISAL
WITH THE CAPTAIN. MOREOVER, THE EVIDENCE ESTABLISHES THAT THE ASSISTANT
CHIEF DOES NOT HAVE THE AUTHORITY TO TELL THE CAPTAIN HOW THE FORM IS TO
BE FILLED OUT. AFTER THE ASSISTANT CHIEF SIGNS THE APPRAISAL HE RETURNS
IT TO THE CAPTAIN WHO DISCUSSES THE CONTENTS OF THE APPRAISAL WITH THE
EMPLOYEE. THEREAFTER, THE FORM IS SENT TO THE CIVILIAN PERSONNEL OFFICE
WHERE REQUIRED COMPUTATIONS ARE MADE AND THE FORM IS THEN PLACED IN THE
EMPLOYEE'S PERSONNEL FOLDER. THE EVIDENCE SHOWS THAT, GENERALLY,
EMPLOYEES ARE GRADED AT POINTS, 2, 3, OR 4.
WHEN A VACANCY OCCURS IN THE BRANCH, THE CHIEF'S SECRETARY INITIATES
THE PROMOTION PROCESS TO FILL THE VACANCY BY SENDING A "REQUEST FOR
PERSONNEL ACTION" TO THE CIVILIAN PERSONNEL OFFICE. THAT OFFICE
PREPARES A "MERIT PROMOTION CERTIFICATE" WHICH IS A RANKED LISTING OF
THE TOP FIVE INDIVIDUALS (OR SIX IN CASE OF TIE RANKINGS) ELIGIBLE FOR
PROMOTIONS TO THE VACANCY, ANY ONE OF WHOM THE CAPTAIN MAY SELECT. THE
RANKINGS ARE BASED ON AN EVALUATION OF EACH ELIGIBLE EMPLOYEE'S
BACKGROUND AND EXPERIENCE TRANSLATED INTO POINTS, USING A SCALE OF A
POSSIBLE 105 POINTS. OF THIS TOTAL, A MAXIMUM OF 50 POINTS MAY BE
ASSIGNED TO AN EMPLOYEE'S TRAINING AND EXPERIENCE AND ANOTHER 50 POINTS
TO HIS "SUPERVISOR'S APPRAISAL OF EMPLOYEE'S CURRENT PERFORMANCE." /14/
THE REMAINING FIVE POINTS ARE ASSIGNED TO SUCH MATTERS AS AWARDS,
SUGGESTIONS, EDUCATIONAL BACKGROUND, SELF-DEVELOPMENT, AND COMMUNITY
ACTIVITIES.
THE PREPARED "MERIT PROMOTION CERTIFICATE" IS SENT TO THE CAPTAINS
WHO HAVE VACANCIES WITHIN THEIR STATIONS. UPON RECEIPT OF THE
CERTIFICATE THEY INTERVIEW EACH OF THE CANDIDATES AND REVIEW THE
PERSONNEL INFORMATION OF THE "SUPERVISOR'S RECORD OF EMPLOYEE." /15/
EACH CAPTAIN'S SELECTION IS DESIGNATED IN WRITING ON THE CERTIFICATE
WHICH IS RETURNED THEN TO THE CIVILIAN PERSONNEL OFFICE WHERE THE
PROMOTION IS CERTIFIED. /16/ THE EVIDENCE ESTABLISHES THAT CAPTAINS ARE
NOT REQUIRED TO CONSULT WITH EITHER THE CHIEF OR HIS ASSISTANTS IN
MAKING THEIR SELECTION, NOR IS THE APPROVAL OF THEIR SUPERIORS REQUIRED
PRIOR TO CERTIFICATION OF THE PROMOTION BY THE CIVILIAN PERSONNEL
OFFICE.
BASED ON THE EVIDENCE PRESENTED IN THIS CASE, I FIND THAT CAPTAINS
POSSESS AND EXERCISE AUTHORITY, IN THE INTEREST OF THE ACTIVITY
INVOLVED, TO EVALUATE EFFECTIVELY EMPLOYEES AND SELECT CANDIDATES TO BE
PROMOTED AND THAT THEY USE INDEPENDENT JUDGMENT IN THE EXERCISE OF SUCH
AUTHORITY. /17/ THUS, THE EVIDENCE INDICATES THAT CAPTAINS USE THEIR
OWN DISCRETION IN EVALUATING THEIR SUBORDINATES; THAT THEIR EVALUATION
IS A SIGNIFICANT PORTION OF THE TOTAL INPUT OF CRITERIA USED TO RANK
ELIGIBLE EMPLOYEES AS CANDIDATES FOR PROMOTION; AND THAT THEIR
INDEPENDENT SELECTIONS FROM THE LIST OF CANDIDATES RESULT IN THE
PROMOTION OF THE INDIVIDUAL THE PARTICULAR CAPTAIN HAS SELECTED. /18/
MOREOVER, THE RECORD IN THIS CASE REFLECTS THAT IN 3 OF THE 4 STATIONS
CAPTAINS ARE THE HIGHEST RANKING FULL-TIME EMPLOYEES AT THE STATION AND
THAT IF THE CAPTAINS WERE NOT EXCLUDED FROM THE UNIT AS SUPERVISORS,
THEN THE RESULTING SUPERVISOR-EMPLOYEE RATIO, INCLUDING CIVILIAN AND
MILITARY PERSONNEL, WOULD BE 3 TO APPROXIMATELY 133, WHICH, IN MY VIEW,
WOULD BE UNREASONABLE, PARTICULARLY IN VIEW OF THE DISTANCES BETWEEN THE
STATIONS AND THE OFFICES OF THE FIRE CHIEF AND ASSISTANTS. ON THE OTHER
HAND, THE EXCLUSION OF THE CAPTAINS FROM THE PETITIONED FOR UNIT ON THE
BASIS THAT THEY ARE SUPERVISORS RESULTS IN A MORE REASONABLE
SUPERVISOR-EMPLOYEE RATIO OF 10 SUPERVISORS TO APPROXIMATELY 126
EMPLOYEES, OR 1 SUPERVISOR FOR EVERY 12.6 EMPLOYEES. /19/
UNDER ALL THE CIRCUMSTANCES, I FIND THAT THE SENIOR STATION CAPTAINS
(SUPERVISORY FIRE FIGHTER, GENERAL, GS-8) AND STATION CAPTAINS
(SUPERVISORY FIRE FIGHTER, GENERAL, GS-7) ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE EXECUTIVE ORDER AND, THEREFORE, SHOULD BE
EXCLUDED FROM THE UNIT FOUND APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION.
BASED ON THE FOREGOING AND NOTING THE AGREEMENT OF THE PARTIES WITH
RESPECT TO THE APPROPRIATENESS OF THE CLAIMED UNIT AND THE FACT THAT
SUCH UNIT HAS BEEN IN EXISTENCE FOR A SUBSTANTIAL PERIOD OF TIME AND HAS
BEEN COVERED BY A NEGOTIATED AGREEMENT, I FIND THAT THE FOLLOWING
EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10 OF EXECUTIVE ORDER 11491,
AS AMENDED:
ALL CIVILIAN PERSONNEL EMPLOYED IN THE FIRE PROTECTION BRANCH OF THE
49TH CIVIL ENGINEERING SQUADRON, HOLLOMON AIR FORCE BASE, NEW MEXICO,
EXCLUDING THE FIRE CHIEF, ASSISTANT CHIEFS, SENIOR STATION CAPTAINS,
STATION CAPTAINS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER. /20/
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NO LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS, ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE HOLLOMAN AIR
FORCE BASE FIRE FIGHTERS LOCAL F-164, INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, AFL-CIO; OR BY LOCAL 1031, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT; OR BY EITHER.
DATED, WASHINGTON, D.C.
JANUARY 2, 1973
/1/ THE UNIT APPEARS AS AMENDED AT THE HEARING. THE RECORD INDICATES
THAT BY THE SCOPE OF THE UNIT IS THE SAME AS THAT REPRESENTED CURRENTLY
BY THE INCUMBENT EXCLUSIVE REPRESENTATIVE, NFFE, EXCEPT FOR THE
EXCLUSION OF THE CLERICAL ASSISTANT TO THE FIRE CHIEF.
/2/ SECTION 202.3(C) STATES, IN PERTINENT PART: "WHEN THERE IS A
SIGNED AGREEMENT COVERING A CLAIMED UNIT, A PETITION FOR EXCLUSIVE
RECOGNITION OR OTHER ELECTION PETITION WILL NOT BE CONSIDERED TIMELY . .
. UNLESS . . . (THE) PETITION IS FILED NOT MORE THAN NINETY (90) DAYS
AND NOT LESS THAN SIXTY (60) DAYS PRIOR TO THE TERMINAL DATE OF SUCH
AGREEMENT. . . ." (THE FOREGOING REGULATION WAS IN EFFECT AT THE TIME
THE PETITION IN THIS MATTER WAS FILED.)
/3/ THE RECORD REVEALS THAT THE PARTIES ENTERED INTO THREE
SUPPLEMENTAL AGREEMENTS TO THE BASIC AGREEMENT DURING THE TWO YEARS IN
WHICH THE AGREEMENT WAS IN EFFECT. THE FIRST, EFFECTIVE DECEMBER 31,
1970, CONCERNED HOURS OF WORK AND TOURS OF DUTY. THE SECOND, EFFECTIVE
APRIL 15, 1971, UPDATED THE BASIC AGREEMENT TO CONFORM WITH EXECUTIVE
ORDER 11491. THE THIRD, EFFECTIVE JUNE 7, 1971, MADE FOUR MINOR
EDITORIAL CHANGES.
/4/ THE EVIDENCE ESTABLISHES THAT NO NEW AGREEMENT WAS FORWARDED TO
"HQ USAF" AND, IN FACT, THERE WERE NO FURTHER NEGOTIATIONS FOR A NEW
AGREEMENT. THUS, THE EXTENSION AGREEMENT EXPIRED BY ITS OWN TERMS; NO
ADDITIONAL EXTENSION WAS ENTERED INTO; AND NO NEW AGREEMENT WAS
EXECUTED SUBSEQUENTLY.
/5/ IN THIS REGARD, THE FOLLOWING DECISIONS WERE NOTED: UNITED
STATES DEPARTMENT OF THE NAVY, UNITED STATES NAVAL WEAPONS STATION,
YORKTOWN, VIRGINIA, A/SLMR NO. 30; FEDERAL AVIATION ADMINISTRATION,
BUREAU OF NATIONAL CAPITAL AIRPORTS, A/SLMR NO. 91; DEPARTMENT OF THE
NAVY, UNITED STATES NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, A/SLMR
NO. 128; DEPARTMENT OF THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO,
CALIFORNIA, A/SLMR NO. 129; AND DEPARTMENT OF THE ARMY, HEADQUARTERS,
U.S. ARMY TRAINING CENTER ENGINEER, FORT LEONARD WOOD, MISSOURI, A/SLMR
NO. 183.
/6/ THE FIRE PROTECTION BRANCH HAS AN AUTHORIZED STAFFING PATTERN OF
154 WITH A MANNING RATIO OF 60 PERCENT CIVILIAN AND 40 PERCENT MILITARY.
/7/ TWO ALARM ROOM OPERATORS ALSO WORK AT STATION NO. 1 AND ARE
RESPONSIBLE TO THE ASSISTANT CHIEFS.
/8/ THE RECORD DID NOT REVEAL WHERE WITHIN THE FIRE PROTECTION BRANCH
THE REMAINING MILITARY PERSONNEL WERE EMPLOYED.
/9/ THE RECORD INDICATES THAT THE ASSISTANT CHIEFS ARE REGULARLY OFF
DUTY ONE FULL DAY EVERY TWO WEEKS OR PAY PERIOD. COUNTING ADDITIONAL
PERIODS OF ANNUAL LEAVE AND TEMPORARY DUTY, THEY ARE OFF DUTY AN AVERAGE
OF BETWEEN 40 AND 45 DAYS EACH YEAR.
/10/ SENIOR STATION CAPTAINS AND STATION CAPTAINS HEREINAFTER WILL BE
REFERRED TO AS "CAPTAINS."
/11/ THESE INSTRUCTIONS ARE KNOWN AS "RESPONSE CARDS" AND "PRE-FIRE
PLANS." THEY ARE MAINTAINED IN ALL STATIONS AND ARE AVAILABLE TO ALL
FIRE FIGHTER PERSONNEL.
/12/ ONE CAPTAIN TESTIFIED THAT HE HAS NEVER HANDLED THE HOSES OR
OTHERWISE HELPED DIRECTLY TO PUT OUT FIRES. ANOTHER CAPTAIN TESTIFIED
THAT ON SEVERAL OCCASIONS HE HANDLED THE HOSES AND PARTICIPATED DIRECTLY
IN PUTTING OUT FIRES.
/13/ OF THE TWO INDIVIDUALS RECOMMENDED BY A CAPTAIN FOR OUTSTANDING
PERFORMANCE AWARDS, ONE RECEIVED THE AWARD.
/14/ THE IMPORTANCE GIVEN THE SUPERVISOR'S APPRAISAL HAS INCREASED
SIGNIFICANTLY WITHIN THE PAST YEAR. PREVIOUSLY IT WAS GIVEN A 5-POINT
WEIGHT IN A TOTAL SCALE OF 100. SINCE JANUARY 15, 1972, THE TESTIMONY
REVEALS THE 50-POINT WEIGHT HAS BEEN ASSIGNED TO IT. THE RECORD REVEALS
THAT THE 50-POINT WEIGHT IS DERIVED FROM PRESCRIBED CALCULATIONS BASED
UPON PARTICULAR RATINGS AND PARTICULAR CATEGORIES INVOLVED.
/15/ THIS REPORT, REFERRED TO AS FORM 971, IS MAINTAINED BY EACH
CAPTAIN ON EACH FIRE FIGHTERS ON HIS SHIFT. IT IS A CONFIDENTIAL RECORD
WHICH SUMMARIZES SUCH DATA AS POSITIONS HELD, TRAINING AWARDS,
PROMOTIONS, SALARY INCREASES AND DISCIPLINARY ACTIONS, IF ANY.
/16/ IF A CAPTAIN DOES NOT SELECT AN ELIGIBLE CANDIDATE FROM THE LIST
HE MUST JUSTIFY IN WRITING HIS REASON THEREFOR. MOREOVER, IF A CAPTAIN
IS NOT SATISFIED WITH THE LIST OF CANDIDATES AFTER INTERVIEWING THEM, HE
MAY REQUEST THE PERSONNEL OFFICE TO PREPARE A NEW ONE. IT WAS NOTED
THAT BECAUSE OF THE NUMBER OF VACANCIES WHICH OCCUR IN THE LIMITED
SUPPLY OF ELIGIBLE CANDIDATES, MOST CANDIDATES ULTIMATELY WILL BE
SELECTED FOR PROMOTION.
/17/ AS NOTED ABOVE AT FOOTNOTE 5, IN SEVERAL DECISIONS I HAVE FOUND
CERTAIN DISPUTED FIRE DEPARTMENT EMPLOYEE CLASSIFICATIONS, INCLUDING
CAPTAINS, NOT TO BE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER. AS DISTINGUISHED FROM THE SUBJECT CASE, IN THOSE CASES THE
EVIDENCE DID NOT SUPPORT THE FINDING THAT EMPLOYEES IN THE DISPUTED
CLASSIFICATIONS EFFECTIVELY EVALUATED THE PERFORMANCE OF EMPLOYEES AND
SELECTED CANDIDATES FOR PROMOTION.
/18/ WHILE, AS NOTED ABOVE, MOST CANDIDATES ULTIMATELY WILL BE
SELECTED FOR PROMOTION BECAUSE OF A NUMBER OF VACANCIES AND THE LIMITED
SUPPLY OF ELIGIBLE CANDIDATES, THIS DOES NOT DETRACT FROM THE FACT THAT
A PARTICULAR CAPTAIN HAS THE AUTHORITY TO SELECT FOR PROMOTION THE
INDIVIDUAL CANDIDATE WHO HE DECIDES IS BEST QUALIFIED TO WORK AT HIS
STATION.
/19/ COMPARE UNITED STATES DEPARTMENT OF THE NAVY, UNITED STATES
NAVAL WEAPONS STATION, YORKTOWN, VIRGINIA, A/SLMR NO. 30.
/20/ INASMUCH AS THE RECORD DOES NOT SET FORTH ANY FACTS CONCERNING
"THE CLERICAL ASSISTANT TO THE FIRE CHIEF, GS-301-6," I WILL MAKE NO
ELIGIBILITY FINDINGS REGARDING THIS CLASSIFICATION.
4 A/SLMR 471; P. 860; CASE NOS. 41-3126(CA), 41-3128(CA),
41-3129(CA); DECEMBER 30, 1974.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
A/SLMR NO. 471
ON DECEMBER 11, 1974, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL)
DETERMINED, BASED ON THE FACTS AND CIRCUMSTANCES PRESENTED, THAT THE
ISSUANCE OF A STAY OF CERTAIN OF THE PARAGRAPHS OF THE ASSISTANT
SECRETARY'S ORDER IN A/SLMR NO. 400 WAS WARRANTED.
AS TO THOSE PORTIONS OF THE ORDER IN A/SLMR NO. 400 WHICH WERE NOT
STAYED BY THE COUNCIL, THE ASSISTANT SECRETARY ORDERED THAT THE
RESPONDENT COMPLY WITH HIS ORDER IN THE MANNER PRESCRIBED IN PARAGRAPH
2.D. OF A/SLMR NO. 400. IN THIS REGARD, HE REQUIRED THAT A NOTICE TO
ALL EMPLOYEES BE POSTED IN ACCORDANCE WITH A/SLMR NO. 400, AS MODIFIED
BY THE COUNCIL'S DECISION.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
LOCAL LODGE 830, AFL-CIO
ON DECEMBER 11, 1974, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL),
PURSUANT TO SECTION 2411.47(C) OF ITS RULES, ISSUED THE ATTACHED
DECISION IN WHICH IT DETERMINED, BASED ON THE FACTS AND CIRCUMSTANCES
PRESENTED, THAT THE ISSUANCE OF A STAY OF PARAGRAPHS 1.C. AND 2.C. OF
THE ASSISTANT SECRETARY'S ORDER IN A/SLMR NO. 400 WAS WARRANTED.
FURTHER, THE COUNCIL CONCLUDED THAT TO THE EXTENT THAT PARAGRAPH 2.D. OF
THE ORDER REQUIRED THE RESPONDENT TO POST A NOTICE WHICH REFLECTED THE
REQUIREMENTS OF PARAGRAPHS 1.C. AND 2.C., A STAY OF PARAGRAPH 2.D. WAS
LIKEWISE WARRANTED.
AS TO THOSE PORTIONS OF THE ORDER IN A/SLMR NO. 400 WHICH WERE NOT
STAYED BY THE COUNCIL, PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER
11491, AS AMENDED, AND SECTION 203.25(B) OF THE REGULATIONS, THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT THE UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE
STATION, LOUISVILLE, KENTUCKY, TAKE SUCH ACTIONS AS WERE REQUIRED UNDER
PARAGRAPHS 1.A., 1.B., 1.D., 1.E., 2.A., 2.B., AND 2.E. OF THE ORDER.
WITH RESPECT TO THE POSTING REQUIREMENTS CONTAINED IN PARAGRAPH 2.D. OF
THE ORDER, ATTACHED HEREWITH IS A MODIFIED NOTICE MARKED "APPENDIX,"
COPIES OF WHICH SHOULD BE POSTED AT THE NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, IN THE MANNER PRESCRIBED IN PARAGRAPH 2.D. OF
A/SLMR NO. 400.
DATED, WASHINGTON, D.C.
DECEMBER 30, 1974
AND IN ORDER TO EFFECTUATE THE POLICIES OF
WE WILL NOT CONDUCT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS CONCERNING EMPLOYEES IN THE UNIT WITHOUT GIVING INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 830,
AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO BE
REPRESENTED AT SUCH DISCUSSIONS BY ITS OWN CHOSEN REPRESENTATIVE.
WE WILL NOT INFORM EMPLOYEES THAT AN OFFICIAL OF THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, IN HIS OFFICIAL CAPACITY,
MAY NOT BE DESIGNATED AS AN EMPLOYEES' REPRESENTATIVE IN MAKING A REPLY
TO A NOTICE OF PROPOSED ADVERSE ACTION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
WE WILL, UPON REQUEST OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, TREAT AS NULL AND VOID
GRIEVANCE EXAMINER SHAW'S REPORT AND RECOMMENDATION RELATIVE TO EMPLOYEE
PAUL PRINCE'S APPEAL OF HIS LETTER OF REPRIMAND, AND WILL RESCIND THE
COMMANDING OFFICER'S APPROVAL AND ADOPTION THEREOF, AND WILL PROCEED
WITH THE PROCESSING OF PAUL PRINCE'S APPEAL OF HIS LETTER OF REPRIMAND
UNDER THE FORMAL ADMINISTRATIVE GRIEVANCE PROCEDURE AS THOUGH GRIEVANCE
EXAMINER SHAW HAD NOT YET CONDUCTED HIS INQUIRY INTO THE MATTER.
DATED . . . BY . . .
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS 1371 PEACHTREE STREET, N.E., ROOM 300, ATLANTA,
GEORGIA 30309.
MR. A. DI PASQUALE, DIRECTOR
LABOR AND EMPLOYEE RELATIONS DIVISION
OFFICE OF CIVILIAN MANPOWER
MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
MR. LOUIS E. SCHMIDT
GRAND LODGE REPRESENTATIVE
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
6500 PEARL ROAD
CLEVELAND, OHIO 44139
GENTLEMEN:
UPON CAREFUL CONSIDERATION OF THE PETITION FOR REVIEW SUBMITTED BY
THE AGENCY IN THE ABOVE-CAPTIONED CASE, THE COUNCIL IS OF THE OPINION
THAT MAJOR POLICY ISSUES ARE RAISED BY THE ASSISTANT SECRETARY'S
DECISION IN THIS CASE, NAMELY:
- WHETHER SECTION 10(E) OF THE ORDER IMPOSES UPON A LABOR
ORGANIZATION HOLDING EXCLUSIVE RECOGNITION AN OBLIGATION TO REPRESENT A
BARGAINING UNIT EMPLOYEE IN AN ADVERSE ACTION PROCEEDING UNTIL SUCH TIME
AS THE EMPLOYEE INDICATES A DESIRE TO CHOOSE HIS OWN REPRESENTATIVE;
AND
- WHETHER AN AGENCY'S FAILURE TO RECOGNIZE A LABOR ORGANIZATION'S
STATUS AS AN EMPLOYEE'S REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING,
UNTIL THE EMPLOYEE ELECTS TO CHOOSE A DIFFERENT REPRESENTATIVE,
CONSTITUTES AN UNFAIR LABOR PRACTICE UNDER THE ORDER?
ACCORDINGLY, PURSUANT TO SECTION 2411.15 OF THE COUNCIL'S RULES OF
PROCEDURE, YOU ARE HEREBY NOTIFIED THAT THE COUNCIL HAS ACCEPTED THE
AGENCY'S PETITION FOR REVIEW OF THE ABOVE-MENTIONED ISSUES. YOU ARE
REMINDED THAT BRIEFS MAY BE FILED, AS PROVIDED IN SECTION 2411.16(A) OF
THE RULES.
THE COUNCIL HAS ALSO CAREFULLY CONSIDERED THE AGENCY'S REQUEST FOR A
STAY OF THE ASSISTANT SECRETARY'S ORDER INSOFAR AS IT DIRECTS THE
ACTIVITY TO CEASE AND DESIST FROM, AND TO TAKE AFFIRMATIVE ACTION WITH
RESPECT TO, THE MATTER APPEALED PENDING COUNCIL RESOLUTION OF THE
INSTANT APPEAL. PURSUANT TO SECTION 2411.47(C) OF ITS RULES, THE
COUNCIL HAS DETERMINED, BASED ON THE FACTS AND CIRCUMSTANCES PRESENTED,
THAT ISSUANCE OF A STAY OF PARAGRAPHS 1.C. AND 2.C. OF THE ASSISTANT
SECRETARY'S ORDER IS WARRANTED IN THIS CASE. FURTHER, TO THE EXTENT
THAT PARAGRAPH 2.D. OF THE ORDER REQUIRES THE AGENCY TO POST A NOTICE
WHICH REFLECTS THE REQUIREMENTS OF PARAGRAPHS 1.C. AND 2.C., A STAY OF
THAT PARAGRAPH IS LIKEWISE WARRANTED. THEREFORE, THE AGENCY'S REQUEST
FOR A STAY OF THOSE PORTIONS OF THE ASSISTANT SECRETARY'S ORDER IS
GRANTED.
BY THE COUNCIL.
CC: A/SLMR
DEPT. OF LABOR
THE QUESTION WAS RAISED WHETHER, FOR THE PURPOSES OF COMPUTING THE
SIXTY (60) DAY FILING PERIOD OF AN APPLICATION FOR DECISION ON
GRIEVABILITY OR ARBITRABILITY UNDER SECTION 205.2(A) OF THE ASSISTANT
SECRETARY'S REGULATIONS, A FINAL WRITTEN REJECTION OF THE ARBITRABILITY
OF A MATTER IN DISPUTE MAY BE MADE PRIOR TO THE ARBITRATION CLAUSE OF
THE NEGOTIATED AGREEMENT ACTUALLY BEING INVOKED.
FOR THE PURPOSES OF COMPUTING THE SIXTY (60) DAY FILING PERIOD OF AN
APPLICATION FOR DECISION ON GRIEVABILITY OR ARBITRABILITY UNDER SECTION
205.2(A) OF THE ASSISTANT SECRETARY'S REGULATIONS, THERE MUST BE A FINAL
WRITTEN REJECTION AFTER THE ARBITRATION CLAUSE IS INVOKED.
THE QUESTION WAS RAISED AS TO WHETHER THE ASSISTANT SECRETARY SHOULD
MAKE A FINDING OF GRIEVABILITY OR ARBITRABILITY, PURSUANT TO AN
APPLICATION FOR DECISION ON GRIEVABILITY OR ARBITRABILITY, WHEN THE
PARTIES HAVE ENTERED INTO A SETTLEMENT AGREEMENT WHICH DISPOSES OF THE
GRIEVANCE.
PURSUANT TO SECTION 6(A)(5) OF THE ORDER, THE ASSISTANT SECRETARY IS
RESPONSIBLE FOR DECIDING "QUESTIONS AS TO WHETHER A GRIEVANCE IS SUBJECT
TO A NEGOTIATED GRIEVANCE PROCEDURE OR SUBJECT TO ARBITRATION UNDER AN
AGREEMENT." ACCORDINGLY, WHERE THE PARTIES HAVE ENTERED INTO A
SETTLEMENT AGREEMENT WHICH DISPOSES OF THE GRIEVANCE, THE ISSUE OR
ISSUES RAISED BY AN APPLICATION FOR DECISION ON GRIEVABILITY OR
ARBITRABILITY WILL BE CONSIDERED TO BE MOOT, AND THE APPLICATION WILL BE
DISMISSED.
4 A/SLMR 470; P. 858; CASE NO. 30-5553(AC); DECEMBER 30, 1974.
VETERANS ADMINISTRATION HOSPITAL,
MONTROSE, NEW YORK
A/SLMR NO. 470
THIS CASE INVOLVED A PETITION FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2440, AFL-CIO (AFGE) SEEKING TO AMEND THE
RECOGNITION GRANTED BY THE ACTIVITY IN DECEMBER 1966, TO THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS, LOCAL 2440, AFL-CIO (CARPENTERS).
ON DECEMBER 6, 1966, THE ACTIVITY EXECUTED A NEGOTIATED AGREEMENT
WITH THE CARPENTERS LOCAL 2440 COVERING A UNIT OF ALL OF THE ACTIVITY'S
WAGE GRADE EMPLOYEES. A SUBSEQUENT AGREEMENT WAS EXECUTED ON FEBRUARY
3, 1971. A DESIRE ON THE PART OF SOME MEMBERS OF CARPENTERS LOCAL 2440
TO AFFILIATE WITH A NATIONAL LABOR ORGANIZATION WHICH DEALT ON A
FULL-TIME BASIS WITH THE PROBLEMS OF FEDERAL EMPLOYEES LED, IN OCTOBER
1973, TO A REQUEST TO THE GENERAL PRESIDENT OF THE CARPENTERS FOR A
RELEASE FROM ITS CHARTER FOR THE PURPOSE OF AFFILIATING WITH THE AFGE.
THIS REQUEST WAS ACCOMPANIED BY A PETITION SIGNED BY SOME 85 OF THE THEN
APPROXIMATELY 120 MEMBERS OF THE CARPENTERS LOCAL 2440. SUBSEQUENTLY,
REPRESENTATIVES OF THE CARPENTERS AND THE AFGE ARRANGED FOR A TRANSFER
OF AFFILIATION, WHICH WAS COMPLETED ON MAY 6, 1974. THE ARRANGEMENT
PROVIDED THAT THE AFGE, THROUGH THE LOCAL OFFICERS WHO REMAINED THE
SAME, WOULD ASSUME RESPONSIBILITY FOR THE AFFAIRS OF CARPENTERS LOCAL
2440 AND WOULD ADMINISTER THE NEGOTIATED AGREEMENT ENTERED INTO BY THE
LATTER AND THE ACTIVITY.
THE ASSISTANT SECRETARY CONCLUDED THAT ANY CHANGE BROUGHT ABOUT AS A
RESULT OF THE PROCESSING OF A PETITION FOR AMENDMENT OF CERTIFICATION OR
RECOGNITION SHOULD NOT AFFECT THE CONTINUITY OF THE UNIT EMPLOYEES'
REPRESENTATION AND CLEARLY SHOULD NOT LEAVE OPEN QUESTIONS CONCERNING
SUCH REPRESENTATION. IN ORDER TO ASSURE THAT ANY SUCH CHANGE IN
AFFILIATION ACCURATELY REFLECTS THE DESIRES OF THE MEMBERSHIP AND THAT
NO QUESTION CONCERNING REPRESENTATION EXISTS, HE STATED IT WAS NECESSARY
THAT THE PROCEDURES INVOKED TO EFFECTUATE THE CHANGE IN AFFILIATION MEET
CERTAIN STANDARDS. THUS, IN ORDER TO ASSURE THAT SUCH AN AMENDMENT
CONFORMS TO THE WISHES OF THE MEMBERSHIP, THE FOLLOWING STEPS, AS A
MINIMUM, SHOULD BE TAKEN: (1) A PROPOSED CHANGE IN AFFILIATION SHOULD
BE THE SUBJECT OF A SPECIAL MEETING OF THE MEMBERS OF THE INCUMBENT
LABOR ORGANIZATION, CALLED FOR THIS PURPOSE ONLY, WITH ADEQUATE ADVANCE
NOTICE PROVIDED TO THE ENTIRE MEMBERSHIP; (2) THE MEETING SHOULD TAKE
PLACE AT A TIME AND PLACE CONVENIENT TO ALL MEMBERS; (3) ADEQUATE TIME
FOR DISCUSSION OF THE PROPOSED CHANGE SHOULD BE PROVIDED, WITH ALL
MEMBERS GIVEN AN OPPORTUNITY TO RAISE QUESTIONS WITHIN THE BOUNDS OF
NORMAL PARLIAMENTARY PROCEDURE; AND (4) A VOTE BY THE MEMBERS OF THE
INCUMBENT LABOR ORGANIZATION ON THE QUESTION SHOULD BE TAKEN BY SECRET
BALLOT, WITH THE BALLOT CLEARLY STATING THE CHANGE PROPOSED AND THE
CHOICES INHERENT THEREIN. THE ASSISTANT SECRETARY CONCLUDED THAT THESE
STEPS ENCOMPASS THE STANDARDS BY WHICH AN AFFILIATION VOTE SHOULD BE
MEASURED.
UNDER THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND INSUFFICIENT
EVIDENCE THAT THE CHANGE OF AFFILIATION FROM THE CARPENTERS TO THE AFGE,
WHICH IS THE BASIS FOR THE INSTANT PETITION FOR AMENDMENT OF
RECOGNITION, TOOK PLACE IN A MANNER WHICH ASSURED THAT THE REQUIRED
STANDARDS WERE MET. IN THIS REGARD, HE NOTED THAT THE EVIDENCE FAILED
TO ESTABLISH THAT ANY SPECIAL MEETING OF THE MEMBERSHIP OF CARPENTERS
LOCAL 2440, LIMITED SOLELY TO THE ISSUE OF A CHANGE IN AFFILIATION, WAS
HELD IN OCTOBER 1973; THAT THE MEMBERS WHO SIGNED THE PETITION
FORWARDED TO THE CARPENTERS HAD THE OPPORTUNITY TO BE FULLY APPRISED OF
THE CONSEQUENCES OF A CHANGE IN AFFILIATION; OR THAT A VOTE OF THE
MEMBERS BY SECRET BALLOT WAS TAKEN ON THE QUESTION. ACCORDINGLY, HE
ORDERED THAT THE PETITION BE DISMISSED.
VETERANS ADMINISTRATION HOSPITAL,
MONTROSE, NEW YORK /1/
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2440, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LOUIS A.
SCHNEIDER. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PETITIONER, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2440,
AFL-CIO, HEREIN CALLED AFGE, AND THE "PARTY-IN-INTEREST," /2/ THE
ASSISTANT SECRETARY FINDS:
THE AFGE FILED THE SUBJECT PETITION FOR AMENDMENT OF RECOGNITION
SEEKING TO AMEND THE DESIGNATION OF THE LABOR ORGANIZATION NAMED IN THE
RECOGNITION GRANTED BY THE ACTIVITY IN DECEMBER 1966. THE ACTIVITY TOOK
NO POSITION REGARDING THE AFGE'S PETITION FOR AMENDMENT OF RECOGNITION.
THE RECORD INDICATES THAT ON MAY 27, 1963, THE ACTIVITY GRANTED
RECOGNITION FOR A UNIT OF ALL OF ITS EMPLOYEES TO THE MONTROSE EMPLOYEES
UNION COUNCIL, WHICH CONSISTED OF THE UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS, LOCAL 2440, AFL-CIO, HEREIN CALLED THE CARPENTERS, AND
LOCAL 178, HOTEL, RESTAURANT AND BARTENDERS INTERNATIONAL UNION. LATER
IN 1963, THE ACTIVITY EXECUTED A NEGOTIATED AGREEMENT WITH THE COUNCIL,
EFFECTIVE OCTOBER 24, 1963. ON DECEMBER 6, 1966, THE ACTIVITY EXECUTED
A SEPARATE NEGOTIATED AGREEMENT WITH THE CARPENTERS COVERING A UNIT OF
ALL OF THE ACTIVITY'S WAGE GRADE EMPLOYEES. THEREAFTER, ON FEBRUARY 3,
1971, THE ACTIVITY EXECUTED ANOTHER NEGOTIATED AGREEMENT WITH THE
CARPENTERS WHICH CONTAINED A TWO-YEAR DURATION PROVISION, AND WHICH WAS
AUTOMATICALLY RENEWABLE THEREAFTER FROM YEAR TO YEAR. THIS LATEST
NEGOTIATED AGREEMENT, WHICH WAS SUPPLEMENTED ON JUNE 26, 1972, WITHOUT
AFFECTING THE TERMINATION DATE, INDICATED THAT THE UNIT CONSISTED OF ALL
THE WAGE GRADE EMPLOYEES OF THE ACTIVITY, INCLUDING WAGE LEADERS. /3/
THE RECORD REFLECTS THAT SOMETIME IN 1971, CERTAIN MEMBERS OF
CARPENTERS LOCAL 2440 INDICATED THEIR DESIRE TO CHANGE THEIR AFFILIATION
FROM THE CARPENTERS TO A NATIONAL LABOR ORGANIZATION WHICH DEALT ON A
FULL-TIME BASIS WITH THE PROBLEMS OF FEDERAL EMPLOYEES. IN THIS REGARD,
ON OCTOBER 29, 1971, A LETTER WAS SENT TO THE GENERAL PRESIDENT OF THE
CARPENTERS, SIGNED BY THE OFFICERS OF CARPENTERS LOCAL 2440 AND
ACCOMPANIED BY CARDS SIGNED BY SOME 102 OF THE 120 MEMBERS, REQUESTING A
RELEASE FROM THE CHARTER BY THE CARPENTERS FOR THE PURPOSE OF
AFFILIATING WITH THE AFGE. THEREAFTER, CARPENTERS LOCAL 2440 WAS ASKED
BY ITS NATIONAL ORGANIZATION TO DEFER ITS REQUEST FOR A YEAR. IN
OCTOBER 1973, CARPENTERS LOCAL 2440 SOLICITED THE VIEWS, THROUGH ITS
SHOP STEWARDS, OF ITS MEMBERS REGARDING THE QUESTION OF CHANGING THEIR
AFFILIATION AND, ON OCTOBER 26, 1973, IT RENEWED ITS REQUEST TO THE
GENERAL PRESIDENT OF THE CARPENTERS FOR A RELEASE FROM ITS CHARTER.
THIS REQUEST WAS ACCOMPANIED BY A PETITION SIGNED BY SOME 85 OF THE THEN
APPROXIMATELY 120 CARPENTERS MEMBERS. THE RECORD EVIDENCE REFLECTS
THAT, SUBSEQUENTLY, REPRESENTATIVES OF THE CARPENTERS AND THE AFGE
ARRANGED FOR A TRANSFER OF AFFILIATION, WHICH WAS COMPLETED ON MAY 6,
1974. /4/ UNDER THIS ARRANGEMENT, THE AFGE, THROUGH THE LOCAL OFFICERS
WHO REMAINED THE SAME, AGREED TO ASSUME RESPONSIBILITY FOR THE AFFAIRS
OF CARPENTERS LOCAL 2440 AND TO ADMINISTER THE NEGOTIATED AGREEMENT
ENTERED INTO BY THE LATTER AND THE ACTIVITY. IT WAS INDICATED THAT THE
LOCAL OFFICERS HAVE CONTINUED TO HOLD REGULAR MEETINGS WITH THE
ACTIVITY, AND HAVE CONTINUED TO REPRESENT THE INTERESTS OF THE MEMBERS
OF THE UNIT.
IN MY VIEW, ANY CHANGE BROUGHT ABOUT AS A RESULT OF THE PROCESSING OF
A PETITION FOR AMENDMENT OF CERTIFICATION OR RECOGNITION SHOULD NOT
AFFECT THE CONTINUITY OF THE UNIT EMPLOYEES' REPRESENTATION AND CLEARLY
SHOULD NOT LEAVE OPEN QUESTIONS CONCERNING SUCH REPRESENTATION. IN THE
INSTANT SITUATION, THE EVIDENCE NOTED ABOVE REVEALS THAT CERTAIN MEMBERS
OF CARPENTERS LOCAL 2440 INITIATED AN ATTEMPT TO CHANGE THE AFFILIATION
OF THEIR EXCLUSIVE REPRESENTATIVE AND THAT A CHANGE IN AFFILIATION WAS
ARRANGED WHICH RESULTED IN THE LOCAL LABOR ORGANIZATION MAINTAINING THE
SAME OFFICERS AS BEFORE THE CHANGE IN AFFILIATION AND IN THE CONTINUED
REPRESENTATION OF THE UNIT EMPLOYEES. HOWEVER, IN MY VIEW, IN ORDER TO
ASSURE THAT ANY SUCH CHANGE IN AFFILIATION ACCURATELY REFLECTS THE
DESIRES OF THE MEMBERSHIP AND THAT NO QUESTION CONCERNING REPRESENTATION
EXISTS, IT IS NECESSARY THAT THE PROCEDURES INVOKED TO EFFECTUATE THE
CHANGE IN AFFILIATION MEET CERTAIN STANDARDS WHICH I FIND WERE NOT MET
IN THE INSTANT CASE. THUS, IN ORDER TO ASSURE THAT AN AMENDMENT FOR
CERTIFICATION OR RECOGNITION CONFORMS TO THE DESIRES OF THE MEMBERSHIP,
THE FOLLOWING STEPS, AT A MINIMUM, SHOULD BE TAKEN: (1) A PROPOSED
CHANGE IN AFFILIATION SHOULD BE THE SUBJECT OF A SPECIAL MEETING OF THE
MEMBERS OF THE INCUMBENT LABOR ORGANIZATION, CALLED FOR THIS PURPOSE
ONLY, WITH ADEQUATE ADVANCE NOTICE PROVIDED TO THE ENTIRE MEMBERSHIP;
(2) THE MEETING SHOULD TAKE PLACE AT A TIME AND PLACE CONVENIENT TO ALL
MEMBERS; (3) ADEQUATE TIME FOR DISCUSSION OF THE PROPOSED CHANGE SHOULD
BE PROVIDED, WITH ALL MEMBERS GIVEN AN OPPORTUNITY TO RAISE QUESTIONS
WITHIN THE BOUNDS OF NORMAL PARLIAMENTARY PROCEDURE; AND (4) A VOTE BY
THE MEMBERS OF THE INCUMBENT LABOR ORGANIZATION ON THE QUESTION SHOULD
BE TAKEN BY SECRET BALLOT, WITH THE BALLOT CLEARLY STATING THE CHANGE
PROPOSED AND THE CHOICES INHERENT THEREIN. IN MY OPINION, THESE STEPS
ENCOMPASS THE STANDARDS BY WHICH AN AFFILIATION VOTE SHOULD BE MEASURED.
UNDER THE CIRCUMSTANCES PRESENTED IN THIS CASE, I FIND INSUFFICIENT
EVIDENCE THAT THE CHANGE OF AFFILIATION FROM THE CARPENTERS TO THE AFGE,
WHICH IS THE BASIS FOR THE INSTANT PETITION FOR AMENDMENT OF
RECOGNITION, TOOK PLACE IN A MANNER WHICH ASSURED THAT THE REQUIRED
STANDARDS WERE MET. THUS, THE EVIDENCE FAILS TO ESTABLISH THAT ANY
SPECIAL MEETING OF THE MEMBERSHIP OF CARPENTERS LOCAL 2440, LIMITED
SOLELY TO THE ISSUE OF A CHANGE IN AFFILIATION, WAS HELD IN OCTOBER
1973; THAT THE MEMBERS WHO SIGNED THE PETITION FORWARDED TO THE
CARPENTERS HAD THE OPPORTUNITY TO BE FULLY APPRISED OF THE CONSEQUENCES
OF A CHANGE IN AFFILIATION; OR THAT A VOTE OF THE MEMBERS BY SECRET
BALLOT WAS TAKEN ON THE QUESTION. ACCORDINGLY, I SHALL ORDER THAT THE
PETITION IN THE INSTANT CASE BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 30-5553(AC) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 30, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1119, IND.,
HEREIN CALLED NFFE, SOUGHT TO INTERVENE IN THIS PROCEEDING IN ACCORDANCE
WITH SECTION 202.5 OF THE ASSISTANT SECRETARY'S REGULATIONS, BY TIMELY
SUBMITTING A TEN PERCENT SHOWING OF INTEREST OF THE EMPLOYEES IN THE
UNIT INVOLVED FOR THE PURPOSE OF ARGUING FOR THE DISMISSAL OF THE AFGE'S
PETITION. THE ASSISTANT REGIONAL DIRECTOR DESIGNATED THE NFFE AS A
"PARTY-IN-INTEREST" AND, IN EFFECT, DENIED THE REQUEST FOR INTERVENTION.
AS A "PARTY-IN-INTEREST," AT THE HEARING, THE NFFE WAS PERMITTED ONLY
TO STATE ITS POSITION WITH REGARD TO THE ISSUES RAISED BY THE INSTANT
PETITION. IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO
RULE UPON THE PROPRIETY OF THE ASSISTANT REGIONAL DIRECTOR'S DENIAL OF
THE NFFE'S REQUEST TO INTERVENE IN THIS MATTER OR UPON THE NFFE'S
OBJECTIONS, MADE AT THE HEARING, THAT THE LIMITATIONS IMPOSED BY ITS
STATUS PREJUDICED ITS POSITION.
/3/ THIS UNIT, WHOSE RECOGNITION THE AFGE SEEKS TO AMEND, CONSISTS OF
SOME 350 EMPLOYEES.
/4/ THE CARPENTERS AT NO TIME SOUGHT TO INTERVENE IN THIS PROCEEDING.
4 A/SLMR 469; P. 848; CASE NO. 62-3834(CO); DECEMBER 19, 1974.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-32
NEWBURG, MISSOURI
(FORT LEONARD WOOD,
FORT LEONARD WOOD, MISSOURI)
A/SLMR NO. 469
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY TWO
INDIVIDUALS (COMPLAINANTS) AGAINST THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R14-32, ALLEGING THAT THE RESPONDENT
VIOLATED SECTION 19(B)(1) AND (2) OF THE EXECUTIVE ORDER BY REPORTING TO
THE ACTIVITY THAT THE COMPLAINANTS, WHO WERE NOT MEMBERS OF THE
RESPONDENT BUT WERE MEMBERS OF ANOTHER LABOR ORGANIZATION, HAD REFUSED
TO PAINT THEIR TRAILERS WHEN, AT THE SAME TIME, THE RESPONDENT TOOK NO
ACTION AGAINST OTHER DELINQUENT DRIVERS WHO WERE MEMBERS OF THE
RESPONDENT.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE RESPONDENT, THE EXCLUSIVE REPRESENTATIVE OF A
BARGAINING UNIT AT FORT LEONARD WOOD ENCOMPASSING THE DRIVERS OF THE
TRANSPORTATION MOTOR POOL (TMP) AND INCLUDING THE TWO COMPLAINANTS
HEREIN, VIOLATED SECTION 19(B)(1) AND (2) OF THE ORDER. IN REACHING HIS
DETERMINATION, THE ASSISTANT SECRETARY RELIED ESSENTIALLY ON THE CONDUCT
AND MOTIVATION OF THE RESPONDENT'S STEWARD WHO, THE EVIDENCE ESTABLISHED
AT ALL TIMES MATERIAL, WAS AWARE OF THE COMPLAINANTS' NONMEMBERSHIP IN
THE RESPONDENT AND THEIR MEMBERSHIP IN ANOTHER LABOR ORGANIZATION.
DURING JUNE 1973, THE DRIVERS OF THE TMP COMMENCED PAINTING THEIR
TRAILERS DURING SLACK PERIODS OF EMPLOYMENT PURSUANT TO AN EARLIER
AGREEMENT BETWEEN THE RESPONDENT AND THE ACTIVITY.
NOTWITHSTANDING THE FACT THAT 6 OR 8 OF THE 16 TRAILERS IN THE TMP
HAD NOT YET BEEN PAINTED AND THAT THE RESPONDENT'S STEWARD KNEW OF THIS
FACT, THE LATTER AND OTHER DRIVERS CONFRONTED THE FOREMEN AND, SINGLING
OUT THE COMPLAINANTS, WANTED TO KNOW WHEN THEY WERE GOING TO PAINT THEIR
TRAILERS. THE STEWARD INFORMED THE FOREMAN THAT, "HE HAD SOME MORE OF
THE UNION MEMBERS ON MY BACK" AND THAT "THEY" SHOULD HAVE TO PAINT THEIR
TRAILERS. ALTHOUGH IT APPEARS THAT THE COMPLAINANTS HAD NEVER REFUSED
TO PAINT THEIR TRAILERS, SHORTLY THEREAFTER, THE RESPONDENT'S STEWARD
COMPLAINED TO THE RESPONDENT'S PRESIDENT THAT THE COMPLAINANTS HAD
REFUSED TO PAINT THEIR TRAILERS AND, AS A RESULT, THE RESPONDENT'S
PRESIDENT NOTIFIED THE ACTIVITY'S CIVILIAN PERSONNEL OFFICE WHICH
INVESTIGATED THE MATTER.
THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S STEWARD'S CONDUCT
IN SINGLING OUT AND REPORTING TO THE ACTIVITY THE ALLEGED WORK
PERFORMANCE DEFICIENCIES OF THE COMPLAINANTS, WHO WERE NOT MEMBERS OF
THE RESPONDENT BUT WHO WERE MEMBERS OF ANOTHER LABOR ORGANIZATION, WHILE
NOT RAISING SIMILAR KNOWN DEFICIENCIES ON THE PART OF CERTAIN OF THE
RESPONDENT'S MEMBERS, IMPROPERLY INTERFERED WITH, RESTRAINED, OR COERCED
THE COMPLAINANTS IN THE EXERCISE OF THEIR RIGHT ASSURED BY THE ORDER TO
REFRAIN FROM UNION ACTIVITY. FURTHER, THE ASSISTANT SECRETARY FOUND
THAT BY SUCH CONDUCT THE RESPONDENT FAILED IN ITS OBLIGATION AS
EXCLUSIVE REPRESENTATIVE TO REPRESENT "THE INTERESTS OF ALL EMPLOYEES IN
THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION
MEMBERSHIP" AS REQUIRED BY SECTION 10(E) OF THE ORDER. ACCORDINGLY, HE
CONCLUDED THAT THE RESPONDENT'S CONDUCT VIOLATED SECTION 19(B)(1) OF THE
ORDER. ADDITIONALLY, BY SUCH CONDUCT, THE ASSISTANT SECRETARY FOUND
THAT THE RESPONDENT ATTEMPTED TO INDUCE THE ACTIVITY TO COERCE THE
COMPLAINANTS IN THE EXERCISE OF THEIR RIGHT UNDER THE ORDER TO REFRAIN
FROM UNION ACTIVITY IN VIOLATION OF SECTION 19(B)(2) OF THE ORDER.
UNDER THESE CIRCUMSTANCES, HE ORDERED THAT THE RESPONDENT CEASE AND
DESIST FROM SUCH CONDUCT AND TAKE CERTAIN AFFIRMATIVE ACTIONS.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-32
NEWBURG, MISSOURI
AND
L. WILLIS AND
JAMES WRIGHT
AND
FORT LEONARD WOOD,
FORT LEONARD WOOD, MISSOURI /1/
ON AUGUST 28, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS FILED BY THE RESPONDENT, I HEREBY ADOPT THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION AS MODIFIED BELOW.
THE COMPLAINT IN THE INSTANT CASE ALLEGED ESSENTIALLY THAT THE
RESPONDENT VIOLATED SECTION 19(B)(1) AND (2) OF THE EXECUTIVE ORDER BY
REPORTING TO THE ACTIVITY THAT THE COMPLAINANTS, WHO WERE NOT MEMBERS OF
THE RESPONDENT BUT WERE MEMBERS OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE), HAD REFUSED TO PAINT THEIR TRAILERS WHEN, AT THE SAME
TIME, NO ACTION WAS TAKEN BY THE RESPONDENT AGAINST OTHER DRIVERS WHO
WERE MEMBERS OF THE RESPONDENT AND HAD NOT PAINTED THEIR TRAILERS.
THE RESPONDENT WAS, AT ALL TIMES MATERIAL HEREIN, THE EXCLUSIVE
REPRESENTATIVE FOR A UNIT COMPOSED OF THE ACTIVITY'S NONSUPERVISORY WAGE
BOARD EMPLOYEES. INCLUDED IN THE UNIT ARE THE 18 OR 19 DRIVERS IN THE
TRANSPORTATION MOTOR POOL (TMP). THE RECORD INDICATES THAT OF THE 18 OR
19 DRIVERS, ALL ARE MEMBERS OF THE RESPONDENT EXCEPT FOR 3 OR 4 DRIVERS,
INCLUDING LEO WILLIS AND JAMES WRIGHT, THE COMPLAINANTS IN THIS CASE,
WHO WERE MEMBERS OF THE NFFE. /2/ THERE WERE APPROXIMATELY 16 TRAILERS
IN THE TMP, OF WHICH 13 OR 14 WERE ASSIGNED TO THE DRIVERS. AS THE
DRIVERS WORKED ON 2 SHIFTS, 12 ON THE DAY SHIFT AND 6 ON THE NIGHT
SHIFT, SOME OF THE TRAILERS WERE ASSIGNED TO 2 DRIVERS.
DURING 1972, GLEN ARRINGTON, THE RESPONDENT'S PRESIDENT, REACHED AN
AGREEMENT WITH THE ACTIVITY THAT DURING SLACK PERIODS DRIVERS WOULD BE
OBLIGATED TO KEEP BUSY BY PAINTING THEIR TRAILERS AND, COMMENCING DURING
JUNE 1973, THE DRIVERS OF THE TMP WERE REQUESTED TO PAINT THEIR TRAILERS
DURING A SLACK PERIOD. UPON RETURNING FROM LEAVE, TMP SUPERVISOR
CHARLES MILLER TESTIFIED THAT HE WAS APPROACHED BY NORMAN FANCHER, ONE
OF THE RESPONDENT'S STEWARDS, AS WELL AS BY SOME OF THE OTHER DRIVERS,
WHO STATED THAT THEY HAD PAINTED THEIR TRAILERS AND ASKED WHEN WILLIS
AND WRIGHT WERE GOING TO PAINT THEIR TRAILERS. FANCHER TESTIFIED THAT
HE ADVISED MILLER THAT, "HE HAD SOME MORE OF THE UNION MEMBERS ON MY
BACK" AND THAT "THEY" SHOULD HAVE TO PAINT THEIR TRAILERS. FANCHER
ACKNOWLEDGED THAT, AT THE TIME HE TALKED TO MILLER, OTHER TRAILERS
BESIDE WILLIS' AND WRIGHT'S HAD NOT BEEN PAINTED. IN THIS REGARD,
MILLER TESTIFIED THAT AT ABOUT THIS TIME 6 OR 8 OF THE 16 TRAILERS HAD
NOT BEEN PAINTED.
SHORTLY THEREAFTER, FANCHER TOLD THE RESPONDENT'S PRESIDENT,
ARRINGTON, THAT THERE WAS A PROBLEM INVOLVING WILLIS AND WRIGHT BECAUSE
ALLEGEDLY THEY HAD REFUSED TO PAINT THEIR TRAILERS. ARRINGTON, WHO
ADMITTED THAT HE KNEW THAT WILLIS AND WRIGHT WERE NOT MEMBERS OF THE
RESPONDENT BUT WERE, IN FACT, MEMBERS OF THE NFFE, WENT DIRECTLY TO THE
CIVILIAN PERSONNEL OFFICE WITHOUT CHECKING AS TO WHETHER OR NOT THE
ALLEGATION BROUGHT TO HIS ATTENTION WAS TRUE. HE SPOKE WITH PERSONNEL
OFFICER ROGER SIMBOLI AND ADVISED THE LATTER THAT THERE WAS A PROBLEM
WITH TRAILER PAINTING IN THE TMP. SIMBOLI ASKED ARRINGTON WHO HE WAS
HAVING TROUBLE WITH AND ARRINGTON REPLIED THAT WILLIS AND WRIGHT
ALLEGEDLY HAD REFUSED TO PAINT THEIR TRAILERS. SIMBOLI THEN ASKED IF
THEY WERE MEMBERS OF THE BARGAINING UNIT AND ARRINGTON REPLIED, "YES,
BUT NON-DUES PAYING." SIMBOLI ADVISED ARRINGTON THAT HE WOULD HAVE
SOMEONE LOOK INTO THE MATTER AND WOULD GET BACK TO HIM. THEREAFTER,
PERSONNEL OFFICER MEADOWS CONTACTED SUPERVISOR MILLER AND ASKED HIM WHAT
WAS BEING DONE ABOUT THE PAINTING. MEADOWS STATED THAT HE UNDERSTOOD
THAT THERE WERE TWO DRIVERS WHO HAD NOT PAINTED THEIR TRAILERS AND THAT
THE TWO WERE EITHER "NON-UNION" OR "NOT MEMBERS OF NAGE." MILLER ASKED
IF HE MEANT WILLIS AND WRIGHT AND MEADOWS REPLIED IN THE AFFIRMATIVE.
MILLER THEN STATED THAT HE HAD ALREADY TALKED TO WRIGHT AND WILLIS AND
THAT THEY WERE WILLING TO PAINT THE TRAILERS. MILLER TESTIFIED THAT
NEITHER WILLIS NOR WRIGHT EVER HAD REFUSED TO PAINT THEIR TRAILERS. ON
JUNE 28, 1973, MILLER AGAIN HAD A SHORT MEETING WITH WILLIS AND WRIGHT
IN WHICH HE ASKED THEM IF THEY WERE READY TO PAINT THEIR TRAILERS AND
THEY REPLIED "YES, ANY TIME." /3/ WRIGHT PAINTED HIS TRAILER A DAY OR
TWO LATER. WILLIS WENT ON LEAVE FOLLOWING THE CONVERSATION OF JUNE 28,
AND, UPON HIS RETURN, AFTER FINDING THAT HIS TRAILER HAD BEEN PAINTED BY
MISTAKE, ASSISTED ANOTHER DRIVER IN PAINTING HIS TRAILER.
A SHORT TIME AFTER TALKING WITH MILLER, MEADOWS INFORMED ARRINGTON
THAT THE TWO TRAILERS IN QUESTION WERE NOT THE ONLY ONES THAT HAD NOT
BEEN PAINTED, AND THAT THE TRAILERS HAD NOT BEEN PAINTED BECAUSE OF WORK
AND LEAVE SCHEDULES. ARRINGTON ACCEPTED THIS EXPLANATION AND HAD AGREED
TO DROP THE MATTER.
I FIND, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT, UNDER
THE CIRCUMSTANCES HEREIN, THE RESPONDENT VIOLATED SECTION 19(B)(1) AND
(2) OF THE EXECUTIVE ORDER. /4/ IN REACHING HIS DETERMINATION, THE
ADMINISTRATIVE LAW JUDGE, IN LARGE MEASURE, RELIED ON THE MOTIVATION AND
CONDUCT OF THE RESPONDENT'S PRESIDENT, ARRINGTON, RATHER THAN ON THE
MOTIVATION AND CONDUCT OF THE RESPONDENT'S STEWARD, FANCHER. IN THIS
RESPECT, I DISAGREE. IN MY VIEW, THE EVIDENCE ESTABLISHES THAT, BY HIS
ACTIONS, FANCHER WAS THE MOVING FORCE BEHIND THE SINGLING OUT OF WILLIS
AND WRIGHT FOR TRAILER PAINTING DUTIES BASED ON THEIR NONMEMBERSHIP IN
THE COMPLAINANT AND THEIR MEMBERSHIP IN THE NFFE. THUS, IN JUNE 1973,
THE RESPONDENT, AS THE EXCLUSIVE REPRESENTATIVE OF THE ACTIVITY'S WAGE
BOARD EMPLOYEES, INCLUDING THE DRIVERS IN THE TMP, AGREED WITH THE
ACTIVITY THAT DURING SLACK PERIODS OF EMPLOYMENT THE DRIVERS IN THE
BARGAINING UNIT WOULD PAINT THEIR OWN TRAILERS. FURTHER, IT APPEARS
THAT, AT ALL TIMES MATERIAL HEREIN, THE RESPONDENT'S AGENTS, INCLUDING
FANCHER, WERE AWARE THAT WILLIS AND WRIGHT WERE NOT MEMBERS OF THE
RESPONDENT, BUT RATHER, HELD MEMBERSHIP IN THE NFFE. NOTWITHSTANDING
THE FACT, AS TESTIFIED TO BY FOREMAN MILLER, THAT 6 OR 8 OF THE 16
TRAILERS IN THE TMP HAD NOT YET BEEN PAINTED, /5/ FANCHER AND OTHER
DRIVERS CONFRONTED FOREMAN MILLER AND COMPLAINED THAT THEY HAD PAINTED
THEIR TRAILERS AND WANTED TO KNOW WHEN WILLIS AND WRIGHT WERE GOING TO
PAINT THEIR TRAILERS. AS NOTED ABOVE, FANCHER TESTIFIED THAT HE ADVISED
MILLER THAT, "HE HAD SOME MORE OF THE UNION MEMBERS ON MY BACK" AND THAT
"THEY" (WILLIS AND WRIGHT) SHOULD HAVE TO PAINT THEIR TRAILERS. SHORTLY
THEREAFTER, FANCHER COMPLAINED TO THE RESPONDENT'S PRESIDENT THAT WILLIS
AND WRIGHT ALLEGEDLY HAD REFUSED TO PAINT THEIR TRAILERS. IT IS CLEAR
THAT NEITHER WRIGHT NOR WILLIS EVER REFUSED TO PAINT THEIR TRAILERS AND,
IN FACT, SHORTLY BEFORE THESE EVENTS OCCURRED, THEY HAD ASSURED MILLER
THAT THEY WOULD PAINT THEM WHEN TIME PERMITTED. FURTHER, IT DOES NOT
APPEAR THAT FANCHER, AT THE TIME HE WAS ADVISING THE RESPONDENT'S
PRESIDENT THAT WILLIS AND WRIGHT ALLEGEDLY HAD REFUSED TO PAINT THEIR
TRAILERS, MENTIONED THE FACT THAT A NUMBER OF OTHER TRAILERS HAD NOT
BEEN PAINTED.
BASED ON THESE CIRCUMSTANCES, I FIND THAT THE RESPONDENT'S STEWARD,
FANCHER, CHOSE TO SINGLE OUT WILLIS AND WRIGHT AND TO INITIATE A
COMPLAINT TO THE ACTIVITY AGAINST THEM BASED UPON THEIR NONMEMBERSHIP IN
THE RESPONDENT AND THEIR MEMBERSHIP IN THE NFFE. THUS, I CONCLUDE THAT
FANCHER'S CONDUCT IN SINGLING OUT AND REPORTING TO AN ACTIVITY
SUPERVISOR THE ALLEGED WORK PERFORMANCE DEFICIENCIES OF NONMEMBERS OF
THE RESPONDENT WHO WERE MEMBERS OF THE NFFE, WHILE NOT RAISING SIMILAR
KNOWN DEFICIENCIES ON THE PART OF CERTAIN OF THE RESPONDENT'S MEMBERS,
IMPROPERLY INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES WILLIS AND
WRIGHT IN THE EXERCISE OF THEIR RIGHT ASSURED BY THE ORDER TO REFRAIN
FROM UNION ACTIVITY-- I.E., REFRAIN FROM JOINING THE RESPONDENT AND FROM
CONTINUING TO BE MEMBERS OF THE NFFE. I FIND ALSO, IN AGREEMENT WITH
THE ADMINISTRATIVE LAW JUDGE, THAT, BY ITS CONDUCT HEREIN, THE
RESPONDENT FAILED IN ITS OBLIGATION AS EXCLUSIVE REPRESENTATIVE, TO
REPRESENT "THE INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP" AS
REQUIRED BY SECTION 10(E) OF THE ORDER. ACCORDINGLY, I CONCLUDE THAT
THE RESPONDENT'S CONDUCT HEREIN VIOLATED SECTION 19(B)(1) OF THE ORDER.
FURTHER, I FIND, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT
THE RESPONDENT'S ATTEMPT TO INDUCE THE ACTIVITY TO BE MORE DEMANDING
WITH RESPECT TO THE WORK PERFORMANCE OF WILLIS AND WRIGHT BECAUSE OF
THEIR NONMEMBERSHIP IN THE RESPONDENT AND MEMBERSHIP IN THE NFFE
CONSTITUTED AN ATTEMPT TO INDUCE THE ACTIVITY TO COERCE THESE EMPLOYEES
IN THE EXERCISE OF THEIR RIGHT UNDER THE ORDER TO REFRAIN FROM THE
ABOVE-NOTED UNION ACTIVITY AND, THEREFORE, CONSTITUTED A VIOLATION OF
SECTION 19(B)(2) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32, NEWBURG, MISSOURI,
SHALL:
1. CEASE AND DESIST FROM:
(A) SINGLING OUT AND REPORTING ALLEGED WORK PERFORMANCE DEFICIENCIES
OF MR. LEO WILLIS AND MR. JAMES S. WRIGHT, OR ANY OTHER EMPLOYEES
BECAUSE OF THEIR NONMEMBERSHIP IN NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-32, AND/OR THEIR MEMBERSHIP IN NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION.
(B) FAILING AND REFUSING TO REPRESENT FAIRLY AND EQUALLY THE
INTERESTS OF MR. LEO WILLIS AND MR. JAMES S. WRIGHT, OR ANY OTHER
EMPLOYEES IN THE BARGAINING UNIT, BECAUSE OF THEIR NONMEMBERSHIP IN
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32, AND/OR THEIR
MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
LABOR ORGANIZATION.
(C) ATTEMPTING TO INDUCE FORT LEONARD WOOD TO COERCE MR. LEO WILLIS
OR MR. JAMES S. WRIGHT, OR ANY OTHER EMPLOYEE, IN THE EXERCISE OF THEIR
RIGHTS UNDER THE ORDER, BECAUSE OF THEIR NONMEMBERSHIP IN NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32, AND/OR THEIR
MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
LABOR ORGANIZATION.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) POST IN ITS LOCAL BUSINESS OFFICE AND IN NORMAL MEETING PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY POSTED,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32, AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY
POSTED. THE PRESIDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE COMMANDING OFFICER,
FORT LEONARD WOOD, FORT LEONARD WOOD, MISSOURI, FOR POSTING IN
CONSPICUOUS PLACES, WHERE UNIT EMPLOYEES ARE LOCATED, WHERE THEY SHALL
BE MAINTAINED FOR A PERIOD OF 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
DECEMBER 19, 1974
/1/ AT THE OUTSET OF THE HEARING, A REPRESENTATIVE OF FORT LEONARD
WOOD WAS PERMITTED TO INTERVENE IN THIS PROCEEDING ON BEHALF OF THE
ACTIVITY.
/2/ THE RECORD INDICATES THAT IT WAS GENERAL KNOWLEDGE THAT THE TWO
COMPLAINANTS WERE NOT MEMBERS OF THE RESPONDENT BUT, RATHER, WERE
MEMBERS OF THE NFFE.
/3/ MILLER ACKNOWLEDGED THAT WILLIS AND WRIGHT HAD BEEN MAKING RUNS
AND THAT HE HAD OFFERED TO GIVE THEM SOME EXTRA TIME TO PAINT THEIR
TRAILERS.
/4/ SECTION 19(B)(1) OF THE ORDER PROVIDES THAT IT IS AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION TO "INTERFERE WITH, RESTRAIN, OR
COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THIS ORDER."
SECTION 19(B)(2) OF THE ORDER PROVIDES THAT IT IS AN UNFAIR LABOR
PRACTICE FOR A LABOR ORGANIZATION TO "ATTEMPT TO INDUCE AGENCY
MANAGEMENT TO COERCE AN EMPLOYEE IN THE EXERCISE OF HIS RIGHTS UNDER
THIS ORDER."
/5/ FANCHER ADMITTED THAT AT THE TIME HE AND OTHER DRIVERS CONFRONTED
FOREMAN MILLER, OTHER TRAILERS BESIDES THOSE OF WILLIS AND WRIGHT, HAD
NOT BEEN PAINTED.
WE WILL NOT SINGLE OUT AND REPORT ALLEGED WORK PERFORMANCE
DEFICIENCIES OF MR. LEO WILLIS AND MR. JAMES S. WRIGHT, OR ANY OTHER
EMPLOYEES, BECAUSE OF THEIR NONMEMBERSHIP IN NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R14-32, AND/OR THEIR MEMBERSHIP IN THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER LABOR
ORGANIZATION.
WE WILL NOT FAIL AND REFUSE TO REPRESENT FAIRLY AND EQUALLY THE
INTERESTS OF MR. LEO WILLIS AND MR. JAMES S. WRIGHT, OR ANY OTHER
EMPLOYEES IN THE BARGAINING UNIT, BECAUSE OF THEIR NONMEMBERSHIP IN
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32, AND/OR THEIR
MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
LABOR ORGANIZATION.
WE WILL NOT ATTEMPT TO INDUCE FORT LEONARD WOOD TO COERCE MR. LEO
WILLIS OR MR. JAMES S. WRIGHT, OR ANY OTHER EMPLOYEE, IN THE EXERCISE OF
THEIR RIGHTS UNDER THE ORDER BECAUSE OF THEIR NONMEMBERSHIP IN NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32, AND/OR THEIR
MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
DATED . . . BY . . .
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 2200, FEDERAL OFFICE BUILDING, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106.
IN THE MATTER OF
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-32
NEWBURG, MISSOURI
AND
L. WILLIS AND
JAMES WRIGHT
AND
FORT LEONARD WOOD,
FORT LEONARD WOOD, MISSOURI
PAUL J. HAYES, ESQ.
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
710 WEST FIFTH STREET
O'FALLON, ILL., 62269
MICHAEL SUSSMAN, ESQ.
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C.
AND
DELORES M. WILLIS
REPRESENTATIVE
ROUTE 2
NEWBURG, MISSOURI
LEROY BATES, ESQ.
FORT LEONARD WOOD, MANAGEMENT-EMPLOYEE
RELATIONS BRANCH
FORT LEONARD WOOD, MISSOURI
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON NOVEMBER 5, 1973, UNDER EXECUTIVE
ORDER 11491, AS AMENDED (HEREIN CALLED THE ORDER BY MR. L. WILLIS AND
MR. JAMES WRIGHT (HEREIN REFERRED TO JOINTLY AS THE COMPLAINANTS)
AGAINST NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R14-32
(HEREIN CALLED NAGE OR RESPONDENT) A NOTICE OF HEARING ON COMPLAINT WAS
USED BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES
FOR THE KANSAS CITY REGION ON MARCH 19, 1974.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON APRIL 30,
1974, IN FORT LEONARD WOOD, MISSOURI. AT THE OUTSET OF THE HEARING FORT
LEONARD WOOD (HEREIN CALLED THE INTERVENOR OR ACTIVITY) WAS PERMITTED TO
INTERVENE IN THIS PROCEEDING. ALL PARTIES WERE REPRESENTED AND AFFORDED
A FULL OPPORTUNITY TO BE HEARD AND TO PRESENT WITNESSES AND TO INTRODUCE
OTHER RELEVANT EVIDENCE. UPON THE CONCLUSION OF THE TAKING OF
TESTIMONY, ALL PARTIES WERE GIVEN AN OPPORTUNITY TO PRESENT ORAL
ARGUMENTS. THE COMPLAINANTS AND THE RESPONDENT FILED TIMELY POSTHEARING
BRIEFS. /1/
UPON THE ENTIRE RECORD HEREIN, INCLUDING THE RELEVANT EVIDENCE
ADDUCED AT THE HEARING AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
NAGE WAS, AT ALL TIMES MATERIAL HEREIN, THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR A UNIT COMPOSED OF THE ACTIVITY'S NONSUPERVISORY WAGE
BOARD EMPLOYEES. COMPLAINANTS WERE EMPLOYED BY THE ACTIVITY AS
TRUCKDRIVERS AND WERE MEMBERS OF THE COLLECTIVE BARGAINING UNIT
REPRESENTED BY NAGE. NEITHER MR. WILLIS NOR MR. WRIGHT WERE MEMBERS OF
NAGE. /2/
DURING 1973 MR. GLEN ARRINGTON, PRESIDENT OF NAGE, AGREED WITH THE
ACTIVITY THAT DURING SLACK PERIODS TRUCKDRIVERS COULD BE REQUIRED TO
PAINT THEIR TRAILERS. ACCORDINGLY, DURING JUNE 1973 THE TRUCKDRIVERS AT
THE TRANSPORTATION MOTOR POOL /3/ WERE ADVISED, /4/ BECAUSE IT WAS A
SLACK PERIOD, TO PAINT THEIR TRAILERS. BECAUSE THEY WERE MAKING VARIOUS
RUNS MR. WRIGHT AND MR. WILLIS HAD NOT PAINTED THEIR TRAILERS.
COMPLAINANTS HAD AGREED WITH MR. MILLER TO PAINT THEIR TRAILERS WHEN
THEY HAD THE OPPORTUNITY.
MR. MILLER TESTIFIED THAT WHEN HE RETURNED FROM LEAVE ON A MONDAY A
FEW DRIVERS, INCLUDING NAGE SHOP STEWARD FANCHER, COMPLAINED THAT THEY
HAD PAINTED THEIR TRAILERS AND WANTED TO KNOW WHEN MR. WILLIS AND MR.
WRIGHT WERE GOING TO PAINT THEIR TRAILERS. MR. FANCHER TESTIFIED THAT
HE ADVISED MR. MILLER THAT HE HAD "SOME MORE OF THE UNION MEMBERS ON MY
BACK" AND THAT "THEY" /5/ SHOULD HAVE TO PAINT THEIR TRUCKS.
MR. FANCHER ALSO ADVISED NAGE PRESIDENT ARRINGTON OF THESE COMPLAINTS
DURING THE LATTER PART OF JUNE, BUT ADMITS HE MIGHT HAVE MENTIONED
COMPLAINANTS' NAMES. MR. ARRINGTON RECALLS THAT MR. FANCHER DID REFER
TO COMPLAINANTS BY NAME.
MR. ARRINGTON THEN WENT TO THE ACTIVITY'S CIVILIAN PERSONNEL OFFICE
WHERE HE SPOKE TO PERSONNEL OFFICER ROGER SIMBOLI. MR. ARRINGTON
ADVISED MR. SIMBOLI THAT THERE WAS A PROBLEM WITH TRUCK PAINTING IN THE
MOTOR POOL. MR. SIMBOLI ASKED MR. ARRINGTON WHO HE WAS HAVING TROUBLE
WITH AND MR. ARRINGTON REPLIED THAT MR. WRIGHT AND MR. WILLIS HAD
ALLEGEDLY REFUSED TO PAINT THEIR TRUCKS. MR. SIMBOLI THEN ASKED IF THEY
WERE MEMBERS OF THE BARGAINING UNIT AND MR. ARRINGTON REPLIED "YES, BUT
NON-DUES-PAYING." MR. SIMBOLI ADVISED MR. ARRINGTON THAT HE WOULD HAVE
SOMEONE LOOK INTO THE MATTER AND WOULD GET BACK TO MR. ARRINGTON.
MR. MILLER THEN RECEIVED A TELEPHONE CALL FROM MR. MEADOWS OF THE
CIVILIAN PERSONNEL OFFICE WHO ASKED WHAT THEY WERE DOING ABOUT THE
PAINTING. MR. MEADOWS STATED THAT HE UNDERSTOOD THAT THERE WERE TWO
DRIVERS THAT HADN'T PAINTED THEIR TRAILERS AND THAT THE TWO WERE EITHER
"NON-UNION" OR "NOT-MEMBERS OF NAGE . . ." MR. MILLER ASKED IF HE MEANT
MR. WILLIS AND MR. WRIGHT AND MR. MEADOWS REPLIED THAT HE DID. MR.
MILLER REPLIED THAT HE HAD ALREADY TALKED TO THE TWO AND THEY WERE
WILLING TO PAINT THE TRUCKS. MR. MEADOWS STATED THAT HIS OFFICE HAD
BEEN CONTACTED BY A UNION REPRESENTATIVE INQUIRING ABOUT THIS PROBLEM.
ON OR ABOUT JUNE 28, 1973, MR. MILLER ADVISED MR. WRIGHT AND MR. WILLIS
THAT HE HAD RECEIVED THE ABOVE DESCRIBED PHONE CALL FROM THE CIVILIAN
PERSONNEL OFFICE AND THE TWO EMPLOYEES AGREED TO PAINT THE TRUCKS WHEN
THEY HAD THE CHANCE. THEY HAD NOT PAINTED THEIR TRUCKS BEFORE BECAUSE
THEY HAD BEEN ON "RUNS." AT THIS TIME ONLY ABOUT ONE HALF OF THE
TRAILERS HAD BEEN PAINTED. MR. WRIGHT PAINTED HIS TRUCK A DAY OR TWO
AFTER THIS JUNE 28TH MEETING.
MR. WILLIS WENT ON ANNUAL LEAVE FOR ABOUT THREE DAYS FOLLOWING THE
JUNE 28TH CONVERSATION. UPON HIS RETURN HE FOUND THAT HIS TRUCK HAD
ALREADY BEEN PAINTED. /6/ MR. BOTTOM ASKED MR. WRIGHT AND MR. WILLIS
TO PAINT ANOTHER TRAILER TO "GET THEM OFF HIS BACK." HE DID NOT EXPLAIN
WHO "THEM" REFERRED TO. MR. WRIGHT AND MR. WILLIS DID PAINT A TRUCK
ASSIGNED TO A MR. LAFERTY. MR. LAFERTY AND ANOTHER EMPLOYEE HELPED
PAINT THIS LATTER VEHICLE.
A FEW DAYS AFTER MR. ARRINGTON'S CONVERSATION WITH MR. SIMBOLI, MR.
MEADOWS CALLED MR. ARRINGTON AND ADVISED HIM THAT THE TWO TRUCKS IN
QUESTION WEREN'T THE ONLY ONES THAT HAD NOT BEEN PAINT4D, THAT MORE WERE
INVOLVED, AND THAT THE TRAILERS HADN'T BEEN PAINTED BECAUSE OF WORK AND
LEAVE SCHEDULES. MR. ARRINGTON REPLIED "I WILL ACCEPT THAT. WE WILL
DROP THE MATTER."
SECTION 19(B)(1) OF THE ORDER MAKES IT AN UNFAIR LABOR PRACTICE OF A
LABOR ORGANIZATION TO "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE
IN THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER; . . ." SECTION 1(A)
OF THE ORDER SECURES TO EACH EMPLOYEE THE RIGHT TO "FORM, JOIN, AND
ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY" AND
PROVIDES FURTHER THAT "EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE
OF THIS RIGHT." SECTION 10(E) OF THE ORDER PROVIDES THAT AN EXCLUSIVE
BARGAINING REPRESENTATIVE "IS RESPONSIBLE FOR REPRESENTING THE INTERESTS
OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD
TO LABOR ORGANIZATION MEMBERSHIP . . ."
THE RECORD ESTABLISHES THAT DURING JUNE THE TRUCK DRIVERS IN THE
TRANSPORTATION MOTOR POOL WERE FACED WITH PERFORMING AN APPARENTLY
ONEROUS TASK, PAINTING THEIR TRUCKS. AFTER ABOUT ONE HALF OF THE TRUCKS
HAD BEEN PAINTED NAGE, THROUGH MR. FANCHER AND MR. ARRINGTON, SINGLED
OUT MR. WILLIS AND MR. WRIGHT FOR SPECIAL TREATMENT AND CONCERN. MR.
FANCHER AND MR. ARRINGTON CLEARLY SINGLED OUT THESE TWO EMPLOYEES AND
COMPLAINED TO THE ACTIVITY TO MAKE SURE THEY PAINTED THEIR TRUCKS, EVEN
THOUGH A NUMBER OF OTHER DRIVERS HAD NOT YET PERFORMED THIS ONEROUS
TASK, BECAUSE THEY WERE NOT MEMBERS OF NAGE AND WERE MEMBERS OF NFFE.
MR. ARRINGTON ADMITTED THAT WHEN HE WAS ASKED IF THE TWO EMPLOYEES IN
QUESTION WERE IN THE UNIT, HE REPLIED THAT THEY WERE BUT WERE
"NON-DUES-PAYING." MR. ARRINGTON FURTHER TESTIFIED THAT HE PICKED OUT
THESE TWO DRIVERS FOR THIS SPECIAL TREATMENT BECAUSE NOT ONLY WERE THEY
NOT MEMBERS OF NAGE BUT WERE IN FACT MEMBERS OF NFFE AND, FURTHER, THAT
IF THEY WERE THE ONLY TWO DRIVERS WHO DID NOT PAINT THEIR VEHICLES IT
WOULD BE VERY DAMAGING FOR NAGE. THESE NAGE REPRESENTATIVES DID NOT
COMPLAIN ABOUT NAGE MEMBERS WHO FAILED TO PAINT THEIR TRUCKS.
THEREFORE, IN VIEW OF THE RECORD AS A WHOLE, AND THE FOREGOING IN
PARTICULAR, IT IS CLEAR THAT THE NAGE REPRESENTATIVE CHOSE TO COMPLAIN
TO THE ACTIVITY ABOUT MR. WRIGHT AND MR. WILLIS BECAUSE THEY WERE NOT
MEMBERS OF NAGE AND WERE MEMBERS OF NFFE.
IN SUCH CIRCUMSTANCES IT IS CONCLUDED THAT THIS CONDUCT ON THE PART
OF NAGE OF OBSERVING AND MAKING SURE THAT EMPLOYEES WHO WERE NOT NAGE
MEMBERS AND WERE NFFE MEMBERS PERFORMED ALL OF THEIR WORK TASKS,
INCLUDING THE ONEROUS ONES, AND OF REPORTING TO THE ACTIVITY THE WORK
PERFORMANCE DEFICIENCIES OF SUCH EMPLOYEES WHILE NOT OBSERVING AND
REPORTING SIMILAR DEFICIENCIES ON THE PART OF NAGE MEMBERS WOULD
NECESSARILY AND UNLAWFULLY RESTRAIN EMPLOYEES FROM DECIDING NOT TO JOIN
AND SUPPORT NAGE AND FROM DECIDING TO JOIN AND SUPPORT NFFE. SIMILARILY
NAGE, THE COLLECTIVE BARGAINING REPRESENTATIVE, FAILED IN ITS
OBLIGATION, AS SET FORTH IN SECTION 10(E) OF THE ORDER, TO REPRESENT ALL
MEMBERS OF THE UNIT "WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP."
IT IS CONCLUDED THAT ALL OF THE FOREGOING CONDUCT BY NAGE WOULD,
THEREFORE, FORESEEABLY HAVE THE EFFECT OF INTERFERRING WITH, RESTRAINING
AND COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS PROTECTED BY
THE ORDER AND WOULD THUS VIOLATE SECTION 19(B)(1) OF THE ORDER.
SECTION 19(B)(2) OF THE ORDER PROVIDES THAT A LABOR ORGANIZATION
SHALL NOT "ATTEMPT TO INDUCE AGENCY MANAGEMENT TO COERCE AN EMPLOYEE IN
THE EXERCISE OF HIS RIGHTS UNDER THIS ORDER." IT IS CONCLUDED, THAT THE
UNION'S ATTEMPT TO INDUCE THE ACTIVITY TO BE MORE DEMANDING WITH RESPECT
TO THE WORK PERFORMANCE OF MR. WILLIS AND MR. WRIGHT BECAUSE THEY WERE
NOT MEMBERS OF NAGE AND WERE MEMBERS OF NFFE WOULD NECESSARILY
CONSTITUTE SUCH AN ATTEMPT TO INDUCE THE ACTIVITY TO COERCE THE
EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS PROTECTED BY THE ORDER AND
WOULD THEREFORE CONSTITUTE A VIOLATION OF SECTION 19(B)(2) OF THE ORDER.
IN VIEW OF THE ENTIRE FOREGOING, I CONCLUDE THAT RESPONDENT NAGE HAS
ENGAGED IN CERTAIN CONDUCT PROHIBITED BY SECTIONS 19(B)(1) AND (2) OF
THE ORDER AND I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE ORDER
AS HEREINAFTER SET FORTH WHICH IS DESIGNED TO EFFECTUATE THE POLICIES OF
THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32 SHALL:
(1) CEASE AND DESIST FROM:
A. KEEPING TRACK OF THE WORK PERFORMANCE OF ANY EMPLOYEES, INCLUDING
MR. LEO WILLIS AND MR. JAMES S. WRIGHT, BECAUSE OF THEIR NONMEMBERSHIP
IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R 14-32, AND/OR
THEIR MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR ANY
OTHER LABOR ORGANIZATION AND REQUIRING ANY SUCH EMPLOYEE, BECAUSE OF HIS
NONMEMBERSHIP IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R
14-32 AND/OR MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR
ANY OTHER LABOR ORGANIZATION, TO DO ANY SPECIFIC WORK RELATED TASKS.
B. FAILING AND REFUSING TO REPRESENT FAIRLY AND EQUALLY THE
INTERESTS OF MR. LEO WILLIS AND MR. JAMES S. WRIGHT, OR ANY OTHER
EMPLOYEE IN THE BARGAINING UNIT BECAUSE OF THEIR NONMEMBERSHIP IN
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND/OR MEMBERSHIP IN
NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR ANY OTHER LABOR
ORGANIZATION.
C. ATTEMPTING TO INDUCE FORT LEONARD WOOD TO COERCE MR. LEO WILLIS
OR MR. JAMES S. WRIGHT, OR ANY OTHER EMPLOYEE IN THE EXERCISING OF THEIR
PROTECTED RIGHTS BECAUSE OF THEIR NONMEMBERSHIP IN NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES AND/OR THEIR MEMBERSHIP IN NATIONAL FEDERATION
OF FEDERAL EMPLOYEES OR ANY OTHER LABOR ORGANIZATION.
D. IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER.
A. POST IN ITS OFFICE AND UPON BULLETIN BOARDS MADE AVAILABLE TO IT
AT THE FACILITY AT FORT LEONARD WOOD, MISSOURI, COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY THE PRESIDENT OF THE NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES LOCAL R 14-32 AND THEY SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE PRESIDENT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.
B. PURSUANT TO SECTION 203.26 OF THE REGULATIONS NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: AUGUST 28, 1974
WASHINGTON, D.C.
WE WILL NOT KEEP TRACK OF THE WORK PERFORMANCE OF ANY EMPLOYEES,
INCLUDING MR. LEO WILLIS AND MR. JAMES S. WRIGHT, BECAUSE OF THEIR
NONMEMBERSHIP IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES LOCAL R
14-32, AND/OR THEIR MEMBERSHIP IN NATIONAL FEDERATION OF FEDERAL
EMPLOYEES OR ANY OTHER LABOR ORGANIZATION AND REQUIRING ANY SUCH
EMPLOYEE, BECAUSE OF HIS NONMEMBERSHIP IN NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES LOCAL R 14-32 AND/OR MEMBERSHIP IN NATIONAL
FEDERATION OF FEDERAL EMPLOYEES OR ANY OTHER LABOR ORGANIZATION, TO DO
ANY SPECIFIC WORK RELATED TASKS.
WE WILL NOT FAIL AND REFUSE TO REPRESENT FAIRLY AND EQUALLY THE
INTERESTS OF MR. LEO WILLIS AND MR. JAMES S. WRIGHT, OR ANY OTHER
EMPLOYEE IN THE BARGAINING UNIT BECAUSE OF THEIR NONMEMBERSHIP IN
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND/OR MEMBERSHIP IN
NATIONAL FEDERATION OF FEDERAL EMPLOYEES OR ANY OTHER LABOR
ORGANIZATION.
WE WILL NOT ATTEMPT TO INDUCE FORT LEONARD WOOD TO COERCE MR. LEO
WILLIS OR MR. JAMES S. WRIGHT, OR ANY OTHER EMPLOYEE IN THE EXERCISING
OF THEIR PROTECTED RIGHTS BECAUSE OF THEIR NONMEMBERSHIP IN NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES AND/OR THEIR MEMBERSHIP IN NATIONAL
FEDERATION OF FEDERAL EMPLOYEES OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
DATED . . . BY . . .
/1/ COMPLAINANTS BRIEF, ALTHOUGH THE AFFIDAVIT OF SERVICE IS DATED
MAY 29, 1974, WAS ACTUALLY FILED AND RECEIVED IN MY OFFICE ON MAY 28,
1974. THE RESPONDENT'S BRIEF, ALTHOUGH RECEIVED ON MAY 29, WAS
APPARENTLY TIMELY MAILED ON MAY 24. IN VIEW OF THE FOREGOING THEREFORE,
BOTH BRIEFS WERE CONSIDERED.
/2/ MR. WILLIS AND MR. WRIGHT WERE MEMBERS OF THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES (HEREIN CALLED NFFE).
/3/ THERE WAS APPROXIMATELY 16 TRAILERS. SOME HOWEVER, HAD TWO
DRIVERS ASSIGNED TO THEM, A DAY DRIVER AND A NIGHT DRIVER.
/4/ LEAD FOREMAN CHARLES MILLER, THE FIRST-LINE SUPERVISOR AND MR.
LEWIS C. BOTTOM, SUPERVISOR OF THE DRIVERS AND OPERATION OF THE
TRANSPORTATION MOTOR POOL, TESTIFIED THAT THE DRIVERS KNEW THEY WERE TO
PAINT THEIR TRAILERS.
/5/ HE DENIED MENTIONING ANY NAMES.
/6/ IT WAS PAINTED, IN ERROR, BY A DETAIL OF SOLDIERS.
4 A/SLMR 468; P. 845; CASE NO. 63-4218(CA); DECEMBER 4, 1974.
DEPARTMENT OF DEFENSE,
AIR FORCE DEFENSE LANGUAGE INSTITUTE,
ENGLISH LANGUAGE BRANCH,
LACKLAND AIR FORCE BASE, TEXAS
A/SLMR NO. 468
ON JUNE 15, 1973, AN ADMINISTRATIVE LAW JUDGE ISSUED HIS REPORT AND
RECOMMENDATIONS IN WHICH HE FOUND THAT THE DEPARTMENT OF DEFENSE, AIR
FORCE DEFENSE LANGUAGE INSTITUTE, ENGLISH LANGUAGE BRANCH, LACKLAND AIR
FORCE BASE, TEXAS, (RESPONDENT) HAD VIOLATED SECTION 19(A)(6) OF THE
ORDER BY UNILATERALLY IMPLEMENTING DEFENSE LANGUAGE INSTITUTE (DLI)
REGULATION 690-2 AND, THUS, CHANGING THE METHOD OR SYSTEM OF SELECTING
UNIT EMPLOYEES STATIONED AT THE ACTIVITY FOR OVERSEAS DUTY OR ASSIGNMENT
WITHOUT MEETING AND CONFERRING WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL UNION 1367 (COMPLAINANT), THE EXCLUSIVE
REPRESENTATIVE OF ITS UNIT EMPLOYEES.
ON NOVEMBER 13, 1973, THE ASSISTANT SECRETARY ISSUED A DECISION AND
ORDER IN A/SLMR NO. 322 IN WHICH HE HELD, AMONG OTHER THINGS, CONTRARY
TO THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT WAS NOT OBLIGATED
TO MEET AND CONFER WITH THE COMPLAINANT OVER THE ADOPTION OF THE DLI
REGULATION 690-2. IN REACHING THIS DETERMINATION, THE ASSISTANT
SECRETARY NOTED THAT IN UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL
1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71A-15, THE FEDERAL
LABOR RELATIONS COUNCIL (COUNCIL) STATED THAT "HIGHER LEVEL PUBLISHED
POLICIES AND REGULATIONS THAT ARE APPLIED UNIFORMLY TO MORE THAN ONE
ACTIVITY MAY PROPERLY LIMIT THE SCOPE OF NEGOTIATIONS . . ." THUS, THE
ASSISTANT SECRETARY, RELYING ON RECORD TESTIMONY THAT THE NEW REGULATION
WAS APPLICABLE TO EMPLOYEES OF OTHER BRANCHES OF THE DEFENSE LANGUAGE
INSTITUTE AS WELL AS EMPLOYEES OF THE RESPONDENT, FOUND THAT DLI
REGULATION 690-2 WAS NOT INCONSISTENT WITH SECTION 11(A) OF THE ORDER
SINCE IT WAS ISSUED "TO ACHIEVE A DESIRABLE DEGREE OF UNIFORMITY AND
EQUALITY . . . COMMON . . . TO EMPLOYEES IN MORE THAN ONE SUBORDINATE
ACTIVITY." ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT THE
RESPONDENT WAS NOT OBLIGATED TO MEET AND CONFER WITH THE COMPLAINANT
CONCERNING THE ISSUANCE OF DLI REGULATION 690-2 AND DISMISSED THE
COMPLAINT.
ON OCTOBER 25, 1974, THE COUNCIL SET ASIDE THE ASSISTANT SECRETARY'S
FINDINGS IN A/SLMR NO. 322, CONCLUDING, CONTRARY TO THE ASSISTANT
SECRETARY, THAT DLI REGULATION 690-2 WAS NOT APPLICABLE UNIFORMLY TO
MORE THAN ONE ACTIVITY IN THAT IT WAS NOT DIRECTED TO A MANAGER OR
MANAGERS OF MORE THAN ONE SUBORDINATE ACTIVITY, PROVIDING GUIDANCE
CONCERNING MATTERS COMMON TO EMPLOYEES OF THESE ACTIVITIES. THUS,
CONTRARY TO THE ASSISTANT SECRETARY, THE COUNCIL FOUND THAT DLI
REGULATION 690-2 MAY NOT SERVE AS AN APPROPRIATE LIMITATION ON THE SCOPE
OF THE NEGOTIATIONS CONCERNING OVERSEAS ASSIGNMENTS UNDER SECTION 11(A)
OF THE ORDER PURSUANT TO ITS HOLDING IN THE MERCHANT MARINE CASE.
ACCORDINGLY, THE COUNCIL REMANDED THE MATTER TO THE ASSISTANT SECRETARY
FOR FURTHER PROCEEDINGS CONSISTENT WITH ITS HOLDING.
PURSUANT TO THE COUNCIL'S DECISION ON APPEAL, THE ASSISTANT SECRETARY
RECONSIDERED THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS
AND THE ENTIRE RECORD IN THIS CASE. HE FOUND, BASED ON THE COUNCIL'S
HOLDING AND THE RATIONALE CONTAINED THEREIN, THAT ADOPTION OF THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS
WERE WARRANTED. UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY
ORDERED THAT THE RESPONDENT CEASE AND DESIST FROM THE CONDUCT FOUND
VIOLATIVE OF THE ORDER AND THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS
CONSISTENT WITH HIS DECISION.
DEPARTMENT OF DEFENSE,
AIR FORCE DEFENSE LANGUAGE INSTITUTE,
ENGLISH LANGUAGE BRANCH,
LACKLAND AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1367
ON JUNE 15, 1973, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE,
ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS, (RESPONDENT)
VIOLATED SECTION 19(A)(6) OF THE ORDER BY UNILATERALLY IMPLEMENTING DLI
REGULATION 690-2 AND THEREBY UNILATERALLY CHANGING THE SYSTEM OF
SELECTING UNIT EMPLOYEES STATIONED AT THE ACTIVITY FOR OVERSEAS DUTY OR
ASSIGNMENT. IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
LIMITATIONS ON THE OBLIGATION TO MEET AND CONFER FOUND IN SECTIONS 11
AND 12 OF THE ORDER DID NOT, UNDER THE CIRCUMSTANCES OF THIS CASE,
RELIEVE THE RESPONDENT FROM ITS OBLIGATION TO BARGAIN ON THE MATTER
INVOLVED HEREIN. THEREAFTER, ON NOVEMBER 13, 1973, THE ASSISTANT
SECRETARY FOUND IN A/SLMR NO. 322 THAT, CONTRARY TO THE ADMINISTRATIVE
LAW JUDGE, THE RESPONDENT WAS NOT OBLIGATED TO MEET AND CONFER WITH THE
COMPLAINANT CONCERNING THE ISSUANCE OF DLI REGULATION 690-2 AND ORDERED
THAT THE SUBJECT COMPLAINT BE DISMISSED. IN REACHING THIS DECISION, THE
ASSISTANT SECRETARY RELIED UPON THE FEDERAL LABOR RELATIONS COUNCIL'S
(COUNCIL) RATIONALE EXPRESSED IN UNITED FEDERATION OF COLLEGE TEACHERS,
LOCAL 1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC 71A-15, AND CONCLUDED
THAT DLI REGULATION 690-2 WAS NOT INCONSISTENT WITH SECTION 11(A) OF THE
ORDER SINCE IT WAS ISSUED "TO ACHIEVE A DESIRABLE DEGREE OF UNIFORMITY
AND EQUALITY . . . COMMON . . . TO EMPLOYEES OF MORE THAN ONE
SUBORDINATE ACTIVITY."
ON OCTOBER 25, 1974, THE COUNCIL ISSUED ITS DECISION ON APPEAL IN THE
SUBJECT CASE FINDING, CONTRARY TO THE ASSISTANT SECRETARY, THAT DLI
REGULATION 690-2 MAY NOT SERVE AS AN APPROPRIATE LIMITATION ON THE SCOPE
OF NEGOTIATIONS CONCERNING OVERSEAS ASSIGNMENTS UNDER SECTION 11(A) OF
THE ORDER. PURSUANT TO SECTION 2411.17(B) OF ITS RULES OF PROCEDURE,
THE COUNCIL REMANDED THE MATTER TO THE ASSISTANT SECRETARY FOR FURTHER
PROCEEDINGS AS TO THE RESOLUTION OF THE SUBJECT UNFAIR LABOR PRACTICE
COMPLAINT IN A MANNER CONSISTENT WITH ITS HOLDING.
BASED ON THE COUNCIL'S HOLDING IN THE INSTANT CASE AND THE RATIONALE
CONTAINED THEREIN, THE ASSISTANT SECRETARY HAS RECONSIDERED THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS, AND THE ENTIRE
RECORD IN THIS CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS AND
SUPPORTING BRIEF, AND HEREBY ADOPTS THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
PURSUANT TO THE COUNCIL'S DECISION ON APPEAL, I SHALL ORDER THAT THE
COMPLAINT IN CASE NO. 63-4218(CA) BE, AND IT HEREBY IS, REINSTATED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF
DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE, ENGLISH LANGUAGE BRANCH,
LACKLAND AIR FORCE BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
UNILATERALLY CHANGING THE METHOD OR SYSTEM OF SELECTING UNIT
EMPLOYEES, STATIONED AT THE LACKLAND AIR FORCE BASE, TEXAS, FOR OVERSEAS
DUTY OR ASSIGNMENT WITHOUT MEETING AND CONFERRING WITH THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1367, THE EXCLUSIVE
REPRESENTATIVE OF ITS UNIT EMPLOYEES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL UNION 1367, WITH RESPECT TO PROPOSED CHANGES
IN THE METHOD OR SYSTEM OF SELECTING UNIT EMPLOYEES FOR OVERSEAS DUTY OR
ASSIGNMENT.
(B) POST AT LACKLAND AIR FORCE BASE, SAN ANTONIO, TEXAS, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDANT OF THE
DEFENSE LANGUAGE INSTITUTE, ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE
BASE, TEXAS, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDANT SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM DATE OF THIS ORDER
AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
DECEMBER 4, 1974
WITH THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1367,
THE EXCLUSIVE REPRESENTATIVE OF OUR UNIT EMPLOYEES.
WE WILL, UPON REQUEST, MEET AND CONFER WITH THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL UNION 1367, WITH RESPECT TO PROPOSED
CHANGES IN THE METHOD OR SYSTEM OF SELECTING UNIT EMPLOYEES FOR OVERSEAS
DUTY OR ASSIGNMENT.
DATED . . . BY . . .
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 2200, FEDERAL OFFICE BUILDING, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106.
4 A/SLMR 467; P. 841; CASE NO. 60-3035(CA); DECEMBER 4, 1974.
NATIONAL LABOR RELATIONS BOARD,
REGION 17, AND NATIONAL LABOR
RELATIONS BOARD
A/SLMR NO. 467
PURSUANT TO HIS DECISION AND REMAND IN A/SLMR NO. 295, THE ASSISTANT
SECRETARY REMANDED THE PROCEEDING IN THE SUBJECT CASE TO THE
ADMINISTRATIVE LAW JUDGE FOR THE PURPOSE OF REOPENING THE RECORD TO
ADDUCE CERTAIN ADDITIONAL EVIDENCE AND TO PREPARE AND SUBMIT TO THE
ASSISTANT SECRETARY A SUPPLEMENTAL REPORT AND RECOMMENDATIONS.
THEREAFTER, HE ISSUED AN ORDER DENYING MOTION, REFERRING CROSS MOTION
AND RESPONSE, AND STAYING REMAND, IN WHICH, AMONG OTHER THINGS, HE
REFERRED TO THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) FOR DECISION
CERTAIN MAJOR POLICY ISSUES CONCERNING THE AVAILABILITY OF ANOTHER
EMPLOYEE'S APPRAISAL TO AN EMPLOYEE OR TO OTHERS IN AN UNFAIR LABOR
PRACTICE PROCEEDING PURSUANT TO THE ORDER.
UPON RECEIPT OF THE CIVIL SERVICE COMMISSION'S INTERPRETATION OF ITS
DIRECTIVES CONCERNING THE ABOVE MAJOR POLICY ISSUES, THE COUNCIL ISSUED
ITS DECISION ON REFERRAL OF MAJOR POLICY ISSUES FROM ASSISTANT SECRETARY
WHEREIN IT WAS FOUND THAT THE FEDERAL PERSONNEL MANUAL (1) PROHIBITS AN
EMPLOYEE OR HIS REPRESENTATIVE FROM SEEING THE APPRAISAL OF ANOTHER
EMPLOYEE, OR ADDUCING EVIDENCE THEREON, IN AN UNFAIR LABOR PRACTICE
PROCEEDING, BUT (2) PERMITS THE ASSISTANT SECRETARY, HIS REPRESENTATIVE
AND/OR THE ADMINISTRATIVE LAW JUDGE, IN A PROCEEDING UNDER THE ORDER, TO
REVIEW SUCH AN APPRAISAL IF NECESSARY FOR THE EXECUTION OF OFFICIAL
RESPONSIBILITY AND IF DONE IN A MANNER THAT MAINTAINS THAT APPRAISAL'S
CONFIDENTIALITY.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY VACATED HIS ORDER
STAYING REMAND AND DIRECTED THE ADMINISTRATIVE LAW JUDGE TO RECONSIDER
HIS DECISION IN THE SUBJECT CASE IN ACCORDANCE WITH THE DECISION AND
REMAND IN A/SLMR NO. 295, AND WITH THE COUNCIL'S DECISION.
NATIONAL LABOR RELATIONS BOARD,
REGION 17, AND NATIONAL LABOR
RELATIONS BOARD
AND
DAVID A. NIXON
IN MY DECISION AND REMAND IN A/SLMR NO. 295, DATED AUGUST 6, 1973, I
REMANDED THE PROCEEDING IN THE SUBJECT CASE TO THE ADMINISTRATIVE LAW
JUDGE FOR THE PURPOSE OF REOPENING THE RECORD TO ADDUCE CERTAIN
ADDITIONAL EVIDENCE AND TO PREPARE AND SUBMIT TO THE ASSISTANT SECRETARY
A SUPPLEMENTAL REPORT AND RECOMMENDATIONS.
THEREAFTER, ON SEPTEMBER 28, 1973, I ISSUED AN ORDER DENYING MOTION,
REFERRING CROSS MOTION AND RESPONSE, AND STAYING REMAND, IN WHICH, AMONG
OTHER THINGS, I REFERRED TO THE FEDERAL LABOR RELATIONS COUNCIL
(COUNCIL) FOR DECISION THE FOLLOWING MAJOR POLICY ISSUES WHICH HAD BEEN
RAISED IN THE CONTEXT OF THIS PROCEEDING:
(1) WHETHER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET
FORTH IN THE FEDERAL PERSONNEL MANUAL, PRECLUDE AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING HELD PURSUANT TO SECTION 6(A)(4) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND (2), IF AN EMPLOYEE OR HIS REPRESENTATIVE IS SO PRECLUDED
FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE APPRAISAL OF
ANOTHER EMPLOYEE, DOES SUCH PROHIBITION APPLY ALSO TO THE ASSISTANT
SECRETARY, HIS REPRESENTATIVES AND/OR ADMINISTRATIVE LAW JUDGES ACTING
PURSUANT TO THEIR RESPONSIBILITIES UNDER THE ORDER?
ON OCTOBER 31, 1974, THE COUNCIL ISSUED THE ATTACHED DECISION ON
REFERRAL OF MAJOR POLICY ISSUES FROM ASSISTANT SECRETARY WHEREIN IT
FOUND, UPON RECEIPT OF THE CIVIL SERVICE COMMISSION'S INTERPRETATION OF
ITS DIRECTIVES CONCERNING THE ABOVE TWO MAJOR POLICY ISSUES, THAT THE
FEDERAL PERSONNEL MANUAL:
(1) PROHIBITS AN EMPLOYEE OR HIS REPRESENTATIVE FROM SEEING AND
ADDUCING EVIDENCE WITH RESPECT TO THE APPRAISAL OF ANOTHER EMPLOYEE IN
THE CONTEXT OF AN UNFAIR LABOR PRACTICE PROCEEDING, BUT (2) PERMITS THE
ASSISTANT SECRETARY, HIS REPRESENTATIVE AND/OR THE ADMINISTRATIVE LAW
JUDGE, ACTING PURSUANT TO THEIR RESPONSIBILITIES IN A PROCEEDING UNDER
THE ORDER, TO SEE THE APPRAISAL OF ANOTHER EMPLOYEE IF REVIEW OF SUCH
APPRAISAL IS NECESSARY FOR THE EXECUTION OF OFFICIAL RESPONSIBILITY, BUT
ONLY IF DONE IN A MANNER THAT MAINTAINS THE CONFIDENTIALITY OF THAT
APPRAISAL, WHILE ACCOMMODATING THE NEED FOR ESTABLISHMENT OF A FORMAL
FILE IN OPEN PROCEEDING BY ADHERING TO THE GUIDELINES SET FORTH IN THE
CIVIL SERVICE COMMISSION RESPONSE.
IN ITS DECISION, THE COUNCIL NOTED THAT WHILE THE ". . . CIVIL
SERVICE REGULATIONS SET FORTH BY WAY OF EXAMPLE ARE NOT BY THEIR OWN
TERMS APPLICABLE TO THE SITUATION HERE PRESENTED, ADOPTION OF
SUBSTANTIALLY SIMILAR PROCEDURES BY THE ASSISTANT SECRETARY WOULD BE
CONSISTENT WITH THE PURPOSES OF THE ORDER WHILE STILL PROTECTING THE
PRIVACY OF THE FEDERAL EMPLOYEES, AS REQUIRED BY APPLICABLE LAW AND
REGULATION."
BASED ON THE FOREGOING CIRCUMSTANCES, THE ORDER STAYING REMAND,
ISSUED SEPTEMBER 28, 1973, IS HEREBY VACATED AND THE ADMINISTRATIVE LAW
JUDGE IS DIRECTED TO RECONSIDER HIS DECISION IN THE SUBJECT CASE IN
ACCORDANCE WITH THE DECISION AND REMAND IN A/SLMR NO. 295, AND WITH THE
COUNCIL'S DECISION IN FLRC NO. 73A-53.
DATED, WASHINGTON, D.C.
DECEMBER 4, 1974
NATIONAL LABOR RELATIONS
BOARD, REGION 17, AND
NATIONAL LABOR RELATIONS BOARD
AND
DAVID A. NIXON
DURING HIS CONSIDERATION OF A MOTION AND A CROSS MOTION FILED BY THE
PARTIES IN CONNECTION WITH HIS DECISION AND REMAND IN A/SLMR NO. 295,
THE ASSISTANT SECRETARY FOUND THAT CERTAIN MAJOR POLICY ISSUES HAD BEEN
RAISED WHICH REQUIRED RESOLUTION BY THE FEDERAL LABOR RELATIONS COUNCIL.
THEREFORE, PURSUANT TO SECTION 2411.4 OF THE COUNCIL'S RULES AND
SECTION 203.25(D) OF THE ASSISTANT SECRETARY'S REGULATIONS, HE REFERRED
THE FOLLOWING MAJOR POLICY ISSUES TO THE COUNCIL FOR DECISION: (1)
"WHETHER APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH
IN THE FEDERAL PERSONNEL MANUAL, PRECLUDE AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING HELD PURSUANT TO SECTION 6(A)(4) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND (2), IF AN EMPLOYEE OR HIS REPRESENTATIVE IS SO PRECLUDED
FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE APPRAISAL OF
ANOTHER EMPLOYEE, DOES SUCH PROHIBITION APPLY ALSO TO THE ASSISTANT
SECRETARY, HIS REPRESENTATIVES AND/OR ADMINISTRATIVE LAW JUDGES ACTING
PURSUANT TO THEIR RESPONSIBILITIES UNDER THE ORDER?"
SINCE THE ISSUES POSED BY THE ASSISTANT SECRETARY'S REFERRAL RAISED A
QUESTION AS TO THE EFFECT OF "APPLICABLE LAW AND REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL," THE COUNCIL ASKED
THE CIVIL SERVICE COMMISSION FOR AN INTERPRETATION OF ITS DIRECTIVES IN
RELATION TO THE TWO MAJOR POLICY ISSUES.
THE COMMISSION REPLIED AS FOLLOWS:
THE APPLICABLE COMMISSION POLICY DIRECTIVE IS FOUND IN SUBCHAPTER 5,
CHAPTER 335 OF THE FEDERAL PERSONNEL MANUAL, WHICH STATES IN PART THAT
" . . . AN EMPLOYEE IS NOT ENTITLED TO SEE AN APPRAISAL OF ANOTHER
EMPLOYEE. NEVERTHELESS, THE REPRESENTATIVE OF AN EMPLOYEE (EVEN THOUGH
AN EMPLOYEE HIMSELF) MAY SEE THE EMPLOYEE'S APPRAISAL, AND AN EMPLOYEE
MAY SEE THE APPRAISAL OF OTHER EMPLOYEES WHEN DICTATED BY HIS OFFICIAL
RESPONSIBILITIES, FOR EXAMPLE, AS MEMBER OF A PROMOTION BOARD."
THIS DIRECTIVE PROHIBITS AN EMPLOYEE OR HIS REPRESENTATIVE FROM
SEEING THE APPRAISAL OF ANOTHER EMPLOYEE UNDER MOST CIRCUMSTANCES,
INCLUDING THE CIRCUMSTANCES OF CASUAL INTEREST OR THE PURSUIT OF A
COMPLAINT THROUGH GRIEVANCE, UNFAIR LABOR PRACTICE, OR OTHER FORMAL OR
INFORMAL MACHINERY. IT, ON THE OTHER HAND, BY ITS OWN TERMS CLEARLY
PERMITS THE ASSISTANT SECRETARY, HIS REPRESENTATIVE, AN ADMINISTRATIVE
LAW JUDGE, OR ANY OTHER PERSON HAVING OFFICIAL RESPONSIBILITY IN
CONNECTION WITH THE INVESTIGATION, EXAMINATION, OR DECISION ON MATTERS
AT ISSUE IN A PROCEEDING TO SEE THE APPRAISAL OF ANOTHER EMPLOYEE IF
REVIEW OF THE APPRAISAL IS NECESSARY FOR THE EXECUTION OF THAT
RESPONSIBILITY. HOWEVER, SUCH PERSON, UPON GAINING ACCESS TO THE
APPRAISAL, MUST CARRY OUT HIS RESPONSIBILITY (INCLUDING ANY
RESPONSIBILITY HE MAY HAVE TO DEVELOP AND MAKE AVAILABLE A COMPLETE
RECORD OR FILE CONTAINING ALL DOCUMENTS RELATED TO THE PROCEEDING) IN
SUCH A FASHION AS TO NOT COMPROMISE THE FUNDAMENTAL REQUIREMENT THAT,
EXCEPT UNDER LIMITED CIRCUMSTANCES NOT GERMANE HERE, "AN EMPLOYEE IS NOT
ENTITLED TO SEE AN APPRAISAL OF ANOTHER EMPLOYEE."
BASIC TO THE ABOVE POLICY IS THE RECOGNITION THAT DISCLOSURE TO
EMPLOYEES (OR THEIR REPRESENTATIVES) OF SUPERVISORY APPRAISALS OF
PERFORMANCE OF OTHER EMPLOYEES, OR THE INCLUSION OF SUCH APPRAISALS IN
AN OPEN FILE, IS POTENTIALLY CLEARLY INVASIVE OF THEIR PERSONAL PRIVACY.
THE ABOVE POLICY, AND THIS INTERPRETATION, ALSO RECOGNIZES THAT
"OFFICIAL RESPONSIBILITIES" IN THE CONTEXT OF THE ABOVE CITED DIRECTIVE
REFERS TO THOSE RESPONSIBILITIES OFFICIALLY ASSIGNED, SUPERVISED, ETC.,
BY OR THROUGH APPROPRIATE AGENCY AUTHORITY. THE FACT THAT A FUNCTION
MAY APPROPRIATELY BE PERFORMED ON OFFICIAL TIME DOES NOT ALONE SERVE TO
BRING IT WITHIN THE EMBRACE OF THE TERM, "OFFICIAL RESPONSIBILITIES."
REASONABLE AMOUNTS OF OFFICIAL TIME MAY BE PERMITTED FOR A NUMBER OF
ACTIVITIES THAT ARE NOT APPROPRIATELY DIRECTED OR SUPERVISED BY PROPER
AGENCY AUTHORITY AND WHICH SIMPLY COULD NOT BE REASONABLY CONSTRUED AS
OFFICIAL RESPONSIBILITIES OF THE EMPLOYEE INVOLVED. EXAMPLES INCLUDE
OFFICIAL TIME FOR AN EMPLOYEE TO PREPARE AN ADVERSE ACTION DEFENSE, OR
OFFICIAL TIME TO SERVE AS A MEMBER OF A UNION NEGOTIATING TEAM.
THE ABOVE POLICY OF COURSE RAISES THE SECONDARY QUESTION OF HOW AN
EMPLOYEE WHO HAS ACCESS TO AN APPRAISAL BY VIRTUE OF HIS OFFICIAL
RESPONSIBILITY FOR INVESTIGATING, EXAMINING, OR ADJUDICATING A COMPLAINT
CAN PROTECT THE PRIVACY OF EMPLOYEES BY MAINTAINING THE CONFIDENTIALLY
OF THAT APPRAISAL UNDER CIRCUMSTANCES WHERE THAT OFFICIAL IS REQUIRED TO
DEVELOP AND MAKE AVAILABLE A COMPLETE RECORD OR FILE CONTAINING ALL
DOCUMENTS RELATING TO THE PROCEEDING.
ILLUSTRATIONS OF HOW THIS MAY BE ACCOMPLISHED ARE FOUND IN A NUMBER
OF PROCEEDINGS FOR WHICH THE COMMISSION HAS RESPONSIBILITY. FOR
EXAMPLE, THE GRIEVANCE SYSTEM ESTABLISHED UNDER THE AUTHORITY OF PART
771 OF THE CIVIL SERVICE REGULATIONS REQUIRES, AS A MATTER OF GRIEVANCE
POLICY, THAT AN AGENCY GRIEVANCE EXAMINER "MUST ESTABLISH AN EMPLOYEE
GRIEVANCE FILE. THIS IS AN INDEPENDENT FILE, SEPARATE AND DISTINCT FROM
THE OFFICIAL PERSONNEL FOLDER. THE GRIEVANCE FILE IS THE OFFICIAL
RECORD OF THE GRIEVANCE PROCEEDINGS AND MUST CONTAIN ALL DOCUMENTS
RELATED TO THE GRIEVANCE . . ." (SUBCHAPTER 3 OF FEDERAL PERSONNEL
MANUAL CHAPTER 771)
HOWEVER, WITH RESPECT TO MATTERS THAT CANNOT BE DISCLOSED TO THE
GRIEVANT, SUBCHAPTER 1 OF THAT CHAPTER PROVIDES, IN PERTINENT PART, THAT
"INFORMATION TO WHICH THE EXAMINER IS EXPOSED WHICH CANNOT BE MADE
AVAILABLE TO THE EMPLOYEE IN THE FORM IN WHICH IT WAS RECEIVED MUST BE
INCLUDED IN THE FILE IN A FORM WHICH THE EMPLOYEE CAN REVIEW OR MUST NOT
BE USED." THUS, UNDER THAT GRIEVANCE SYSTEM, AN EXAMINER MAY CONCLUDE
THAT THE CONTENTS OF A SUPERVISORY APPRAISAL ARE EITHER NOT RELEVANT OR
NOT NECESSARY FOR THE RESOLUTION OF THE MATTER AND THUS NEED NOT BE MADE
A PART OF THE FILE OR, IF ITS CONTENTS ARE RELEVANT AND NECESSARY, THEN
HE MUST INCLUDE IT IN THE FILE "IN A FORM WHICH THE EMPLOYEE CAN
REVIEW."
FOR AN ILLUSTRATION OF HOW THIS CAN BE DONE, WE DRAW FROM ANOTHER
PROCEEDING-- COMPLAINTS OF DISCRIMINATION PROCESSED UNDER PART 713 OF
THE CIVIL SERVICE REGULATIONS. THE HANDBOOK FOR DISCRIMINATION
COMPLAINTS EXAMINERS PUBLISHED BY THE COMMISSION IN APRIL, 1973, GIVES
SPECIFIC INSTRUCTIONS IN THIS AREA AND DOES SO WITH SPECIFIC REFERENCE
TO SUPERVISORY APPRAISALS OF PERFORMANCE. THAT HANDBOOK PROVIDES AS
FOLLOWS:
THE DISCLOSURE OF SUPERVISORY APPRAISALS OF PERFORMANCE AND POTENTIAL
OF EMPLOYEES OTHER THAN THE COMPLAINANT, TO THE COMPLAINANT, CONSTITUTES
AN UNWARRANTED INVASION OF THE PERSONAL PRIVACY OF THE EMPLOYEES
CONCERNED. HOWEVER, THIS DOES NOT PRECLUDE THE INVESTIGATOR OR
COMPLAINTS EXAMINER FROM REVIEWING THE SUPERVISORY APPRAISALS OF OTHER
EMPLOYEES AND INCLUDING INFORMATION FROM THEM IN THE RECORD TO THE
EXTENT THAT THIS CAN BE DONE WITHOUT IDENTIFYING A PARTICULAR EMPLOYEE
AS BEING THE SUBJECT OF A PARTICULAR APPRAISAL. WITNESSES MAY TESTIFY
AT A HEARING TO MATTERS RELEVANT TO SUPERVISORY APPRAISALS OF
PERFORMANCE AND POTENTIAL OF EMPLOYEES.
WHEN THE SUPERVISORY APPRAISALS OF SEVERAL OTHER EMPLOYEES ARE
INVOLVED IN A COMPLAINT, IT MIGHT BE POSSIBLE TO MAKE THEM ANONYMOUS BY
TAPING OVER OR OTHERWISE CONCEALING THE EMPLOYEES' NAMES AND OTHER
IDENTIFYING INFORMATION. COPIES OF THE TAPED-OVER APPRAISALS CAN THEN
BE MADE AND INCLUDED IN THE FILE. IF THE FORM AND CONTENT OF THE
APPRAISALS DO NOT LEND THEMSELVES TO THIS KIND OF TREATMENT TO ASSURE
CONFIDENTIALITY, IT MAY BE POSSIBLE TO INCLUDE PERTINENT EXTRACTS AND,
IF SO, THIS SHOULD BE DONE.
IF THERE IS NO WAY THAT THE APPRAISALS OR EXTRACTS THEREFROM CAN BE
INCLUDED WITHOUT IDENTIFYING THE SUBJECT OF EACH APPRAISAL, THE ONLY
ALTERNATIVE IS FOR THE INVESTIGATOR OR COMPLAINTS EXAMINER TO INCLUDE IN
THE RECORD A NARRATIVE STATEMENT OF THE RESULTS OF HIS REVIEW OF THE
APPRAISALS. THIS CAN CONSIST OF SOMETHING AS SIMPLE AS A STATEMENT THAT
THE INVESTIGATOR OR EXAMINER HAD FOUND THE APPRAISALS NOT MATERIAL TO
THE COMPLAINT, OR SOMETHING AS EXTENSIVE AS A PARAPHRASE OF EACH
APPRAISAL.
IF THE COMPLAINANT CHALLENGES THE ACCURACY OF THE MATERIAL INCLUDED
BY THE INVESTIGATOR CONCERNING OTHER EMPLOYEES' APPRAISALS, THE EXAMINER
MAY VERIFY THE ACCURACY OF THAT MATERIAL BY REVIEWING THE APPRAISALS
HIMSELF. SIMILARLY, THE DECIDING OFFICIAL CAN MAKE AN INDEPENDENT
VERIFICATION IF HE FEELS THE NEED TO DO SO. THIS WOULD NOT BE IN
CONFLICT WITH THE INSTRUCTIONS IN APPENDIX B OF FPM CHAPTER 713 BECAUSE
THE PURPOSE OF ANY REVIEW OF THE APPRAISALS BY THE EXAMINER OR THE
DECIDING OFFICIAL WOULD BE TO ASSURE THE ACCURACY OF THE INFORMATION IN
THE RECORD, NOT TO ACQUIRE AND CONSIDER INFORMATION NOT IN THE RECORD."
THE ABOVE ILLUSTRATIONS ARE CITED NOT TO SUGGEST THEIR SPECIFIC
APPLICABILITY IN THE CASE AT HAND BUT RATHER TO ILLUSTRATE HOW THE
POLICY OF NONDISCLOSURE OF SUPERVISORY APPRAISALS CITED IN CHAPTER 335
OF THE FEDERAL PERSONNEL MANUAL MAY BE ACCOMMODATED IN OPEN PROCEEDINGS
WHERE A FORMAL FILE OR RECORD IS REQUIRED TO BE ESTABLISHED.
THEREFORE, IN RESPONSE TO THE ASSISTANT SECRETARY'S QUESTIONS, THE
FEDERAL PERSONNEL MANUAL: (1) PROHIBITS AN EMPLOYEE OR HIS
REPRESENTATIVE FROM SEEING AND ADDUCING EVIDENCE WITH RESPECT TO THE
APPRAISAL OF ANOTHER EMPLOYEE IN THE CONTEXT OF AN UNFAIR LABOR PRACTICE
PROCEEDING, BUT (2) PERMITS THE ASSISTANT SECRETARY, HIS REPRESENTATIVE
AND/OR THE ADMINISTRATIVE LAW JUDGE, ACTING PURSUANT TO THEIR
RESPONSIBILITIES IN A PROCEEDING UNDER THE ORDER, TO SEE THE APPRAISAL
OF ANOTHER EMPLOYEE IF REVIEW OF SUCH APPRAISAL IS NECESSARY FOR THE
EXECUTION OF OFFICIAL RESPONSIBILITY, BUT ONLY IF DONE IN A MANNER THAT
MAINTAINS THE CONFIDENTIALITY OF THAT APPRAISAL, WHILE ACCOMMODATING THE
NEED FOR ESTABLISHMENT OF A FORMAL FILE IN OPEN PROCEEDING BY ADHERING
TO THE GUIDELINES SET FORTH IN THE CIVIL SERVICE COMMISSION RESPONSE.
WHILE THE COUNCIL NOTES THAT THE CIVIL SERVICE REGULATIONS SET FORTH
BY WAY OF EXAMPLE ARE NOT BY THEIR OWN TERMS APPLICABLE TO THE SITUATION
HERE PRESENTED, ADOPTION OF SUBSTANTIALLY SIMILAR PROCEDURES BY THE
ASSISTANT SECRETARY WOULD BE CONSISTENT WITH THE PURPOSES OF THE ORDER
WHILE STILL PROTECTING THE PRIVACY OF THE FEDERAL EMPLOYEES, AS REQUIRED
BY APPLICABLE LAW AND REGULATION. THAT IS, SUCH PROCEDURES WOULD ENABLE
THE ASSISTANT SECRETARY TO CARRY OUT HIS RESPONSIBILITY OF DECIDING
UNFAIR LABOR PRACTICE COMPLAINTS BASED UPON ALL NECESSARY AND RELEVANT
FACTS, AND STILL PROTECT THE PRIVACY OF FEDERAL EMPLOYEES.
BY THE COUNCIL.
ISSUED: OCTOBER 31, 1974
4 A/SLMR 466; P. 838; CASE NO. 42-2501(RO); DECEMBER 4, 1974.
NAVAL EDUCATION AND TRAINING
INFORMATION SERVICES ACTIVITY,
NAVAL AIR STATION,
PENSACOLA, FLORIDA
A/SLMR NO. 466
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1960, AFL-CIO (AFGE), SOUGHT TO REPRESENT A UNIT OF ALL OF THE EMPLOYEES
OF THE ACTIVITY IN THE STATE OF FLORIDA. SUCH A UNIT WOULD INCLUDE
EMPLOYEES OF THE ACTIVITY LOCATED AT ITS HEADQUARTERS AT PENSACOLA NAVAL
AIR STATION, WHITING NAVAL AIR STATION, AND THE ORLANDO DATA PROCESSING
DIVISION. THE ACTIVITY CONTENDED THAT ONLY THE CLAIMED EMPLOYEES AT THE
PENSACOLA NAVAL AIR STATION SHARED A COMMUNITY OF INTEREST. HOWEVER,
BOTH THE ACTIVITY AND THE AFGE INDICATED THAT THEY WOULD ACCEPT AN
ALTERNATIVE UNIT OF ALL OF THE ACTIVITY'S EMPLOYEES LOCATED AT PENSACOLA
AND WHITING NAVAL AIR STATIONS BECAUSE THE EMPLOYEES AT WHITING SHARE
THE SAME AREA OF CONSIDERATION FOR PROMOTIONS AND REDUCTIONS-IN-FORCE AS
THOSE IN PENSACOLA AND BECAUSE THE FACILITY AT WHITING IS PART OF THE
OPERATIONS DIVISION WHICH, FOR THE MOST PART, IS LOCATED IN PENSACOLA.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PETITIONED FOR UNIT WAS
INAPPROPRIATE BECAUSE: THE COMMUNITY OF INTEREST WAS BASED ESSENTIALLY
ON A COMMON STATE BOUNDARY; THE SEPARATE FACILITIES IN FLORIDA WERE ALL
TENANT ORGANIZATIONS AT DIFFERENT LOCATIONS AND RECEIVED THEIR PERSONNEL
SERVICES AS TENANTS FROM THE LOCAL CIVILIAN PERSONNEL OFFICES; IN THE
CASE OF ORLANDO, THERE IS A DIFFERENT AREA OF CONSIDERATION FOR
PROMOTIONS AND REDUCTIONS-IN-FORCE; AND THERE IS MINIMAL TRANSFER AND
NO INTERCHANGE OR OTHER WORK RELATED CONTACT AMONG THE EMPLOYEES OF THE
SEPARATE FACILITIES. THE ASSISTANT SECRETARY CONCLUDED ALSO THAT AN
ALTERNATIVE UNIT ENCOMPASSING EMPLOYEES OF PENSACOLA AND WHITING WAS
INAPPROPRIATE FOR CERTAIN OF THE ABOVE-NOTED REASONS AND BECAUSE THERE
ARE TWO OTHER FACILITIES OUTSIDE THE STATE OF FLORIDA, MERIDIAN NAVAL
AIR STATION AND CORRY STATION, WHICH ARE PART OF THE ACTIVITY'S
OPERATIONS DIVISION. HOWEVER, THE ASSISTANT SECRETARY FOUND THAT A UNIT
OF ALL OF THE EMPLOYEES OF THE ACTIVITY LOCATED IN PENSACOLA WOULD BE
APPROPRIATE BECAUSE SUCH EMPLOYEES SHARED A COMMON MISSION AND LOCATION,
HAD DAY-TO-DAY WORK CONTACT, RECEIVED THEIR PERSONNEL SERVICES FROM THE
SAME CIVILIAN PERSONNEL OFFICE, AND WERE UNDER THE SAME AREA OF
CONSIDERATION FOR PROMOTIONS AND REDUCTIONS-IN-FORCE. ELIGIBILITY
DETERMINATIONS REGARDING THE ALLEGED SUPERVISORY OR MANAGEMENT OFFICIAL
STATUS OF CERTAIN JOB CLASSIFICATIONS ALSO WERE RENDERED.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED AN ELECTION IN THE UNIT
FOUND APPROPRIATE, IF THE AFGE DESIRED TO PROCEED IN SUCH A UNIT.
NAVAL EDUCATION AND TRAINING
INFORMATION SYSTEMS ACTIVITY,
NAVAL AIR STATION,
PENSACOLA, FLORIDA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1960, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HAZEL M. ELLISON.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /1/
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AFGE SEEKS AN ELECTION IN A UNIT CONSISTING OF ALL
NONPROFESSIONAL EMPLOYEES (WAGE GRADE (WG) AND GENERAL SCHEDULE (GS))
ASSIGNED TO THE NAVAL EDUCATION AND TRAINING INFORMATION SYSTEMS
ACTIVITY IN THE STATE OF FLORIDA. /2/ THE ACTIVITY CONTENDS THAT THE
APPROPRIATE UNIT SHOULD BE LIMITED ONLY TO THE EMPLOYEES OF THE NAVAL
EDUCATION AND TRAINING INFORMATION SYSTEMS ACTIVITY LOCATED AT THE NAVAL
AIR STATION, PENSACOLA. HOWEVER, IN THE ALTERNATIVE, BOTH THE ACTIVITY
AND THE AFGE INDICATED THAT THEY WOULD ACCEPT A UNIT CONSISTING OF THE
EMPLOYEES OF THE NAVAL EDUCATION AND TRAINING INFORMATION SYSTEMS
ACTIVITY LOCATED AT THE NAVAL AIR STATION, PENSACOLA, AND THE NAVAL AIR
STATION, WHITING. ALSO AT ISSUE HEREIN WERE QUESTIONS RAISED BY THE
ASSISTANT REGIONAL DIRECTOR REGARDING THE ELIGIBILITY OF CERTAIN
EMPLOYEE CLASSIFICATIONS.
THE NAVAL EDUCATION AND TRAINING INFORMATION SYSTEMS ACTIVITY WAS
ESTABLISHED ON JULY 1, 1974, UNDER THE DIRECTION OF THE CHIEF OF NAVAL
EDUCATION AND TRAINING, TO PLAN, DESIGN, DEVELOP AND MAINTAIN THE NAVAL
EDUCATION AND TRAINING COMMAND'S MANAGEMENT INFORMATION SYSTEM AND TO
PROVIDE AUTOMATIC DATA PROCESSING SERVICES TO DESIGNATED ACTIVITIES.
THE HEADQUARTERS OF THE NAVAL EDUCATION AND TRAINING INFORMATION SYSTEMS
ACTIVITY IS LOCATED, AS A TENANT ACTIVITY, AT THE NAVAL AIR STATION,
PENSACOLA, FLORIDA. AMONG THE ORGANIZATIONAL ENTITIES OF THE ACTIVITY
LOCATED AT PENSACOLA, AND INCLUDED IN THE PETITIONED FOR UNIT, ARE THE
MANAGEMENT INFORMATION OFFICE (MIO) AND THE DATA PROCESSING SERVICE
CENTER (CENTER). /3/ THE RECORD REVEALS THAT ALL OF THE DIVISIONS OF
THE MIO ARE LOCATED AT PENSACOLA, BUT THAT ONLY ONE OF THE SEVEN
DIVISIONS OF THE CENTER, THE PRODUCTION CONTROL DIVISION, IS LOCATED
ENTIRELY IN PENSACOLA. THUS, ALTHOUGH THE MAJORITY OF THE EMPLOYEES OF
THE CENTER'S OPERATIONS DIVISION, (WHICH HAS TWO BRANCHES-- THE COMPUTER
BRANCH AND THE DATA ENTRY BRANCH), ARE LOCATED AT PENSACOLA, THREE OF
THE EIGHT DATA ENTRY SECTIONS OF THE DATA ENTRY BRANCH ARE LOCATED
OUTSIDE OF PENSACOLA, AT THE MERIDIAN NAVAL AIR STATION, THE WHITING
NAVAL AIR STATION AND THE CORRY STATION. AND OF THESE THREE DATA ENTRY
SECTIONS, ONLY THE ONE AT WHITING WOULD BE INCLUDED IN THE PETITIONED
FOR UNIT BECAUSE IT IS LOCATED IN THE STATE OF FLORIDA, 30 MILES FROM
PENSACOLA. A THIRD DIVISION OF THE CENTER WHICH IS INCLUDED IN THE
PETITIONED FOR UNIT IS THE ORLANDO DATA PROCESSING DIVISION LOCATED IN
ORLANDO, FLORIDA. /4/
THE RECORD REVEALS THAT THE CHIEF OF NAVAL EDUCATION AND TRAINING IN
PENSACOLA SETS BUDGET CEILINGS, APPROVES ALL POSITIONS AT OR ABOVE THE
GS-9 LEVEL, AND CERTIFIES ALL EQUIPMENT PURCHASES AT ALL OF THE
ACTIVITY'S LOCATIONS, INCLUDING PENSACOLA. HOWEVER, EACH FACILITY
LOCATED OUTSIDE OF PENSACOLA RECEIVES ITS PERSONNEL SERVICES, AS A
TENANT ACTIVITY, FROM ITS RESPECTIVE LOCAL CIVILIAN PERSONNEL OFFICE, AS
DOES THE HEADQUARTERS' FACILITY IN PENSACOLA WHICH RECEIVES ITS
PERSONNEL SERVICES FROM THE CIVILIAN PERSONNEL OFFICE OF THE PENSACOLA
NAVAL AIR STATION. SUCH PERSONNEL SERVICES INCLUDE THE MAINTENANCE OF
OFFICIAL PERSONNEL FOLDERS, THE PROCESSING OF PERSONNEL ACTIONS, THE
COUNSELING OF EMPLOYEES, PROVIDING ADVICE ON GRIEVANCES AND
ADMINISTRATIVE APPEALS, AND THE ADMINISTRATION OF PERFORMANCE RATING
PROGRAMS AND INCENTIVE AWARD PROGRAMS. WITH RESPECT TO THE AREA OF
CONSIDERATION FOR PROMOTIONS AND FOR REDUCTIONS-IN-FORCE, THE RECORD
REVEALS THAT THIS WOULD BE THE LOCAL COMMUTING AREA, EXCEPT FOR THE DATA
ENTRY SECTION AT WHITING, WHICH IS INCLUDED IN THE PENSACOLA NAVAL AIR
STATION COMMUTING AREA. BECAUSE THE AREA OF CONSIDERATION IS THE LOCAL
COMMUTING AREA, THE EVIDENCE ESTABLISHED THAT TRANSFERS BETWEEN
FACILITIES LOCATED IN DIFFERENT COMMUTING AREAS HAVE BEEN MINIMAL.
MOREOVER, THERE HAS BEEN NO INTERCHANGE OF EMPLOYEES BETWEEN THE VARIOUS
FACILITIES INVOLVED HEREIN.
WITH RESPECT TO EMPLOYEES OF THE THREE FLORIDA FACILITIES OF THE
ACTIVITY WHICH WOULD BE INCLUDED IN THE PETITIONED FOR UNIT, THE RECORD
REFLECTS THAT THERE IS NO JOB RELATED DAY-TO-DAY CONTACT BETWEEN THE
EMPLOYEES OF THE ORLANDO DATA PROCESSING DIVISION AND THOSE IN PENSACOLA
OR THE WHITING DATA ENTRY SECTION. WHILE JOB CONTACT IS SOMEWHAT CLOSER
BETWEEN THE EMPLOYEES LOCATED IN WHITING AND PENSACOLA BECAUSE OF THE
CLOSE PROXIMITY OF THE TWO FACILITIES AND THE FACT THAT THE WHITING DATA
ENTRY SECTION IS PART OF THE OPERATIONS DIVISION LOCATED IN PENSACOLA,
FLORIDA, THERE IS NO EVIDENCE OF INTERCHANGE OR DAY-TO-DAY WORK RELATED
CONTACT BETWEEN THE EMPLOYEES AT THESE TWO LOCATIONS.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE CLAIMED
UNIT OF ALL OF THE ACTIVITY'S EMPLOYEES LOCATED IN THE STATE OF FLORIDA
IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN
REACHING THIS CONCLUSION, NOTED PARTICULARLY WAS THE FACT THAT THE
CLAIMED EMPLOYEES ARE FOUND AT THREE SEPARATE GEOGRAPHIC LOCATIONS AND
HAVE LITTLE IN COMMON OTHER THAN LOCATION IN THE STATE OF FLORIDA.
THUS, THE EVIDENCE ESTABLISHES THAT THE PETITIONED FOR EMPLOYEES AT EACH
OF THE GEOGRAPHIC LOCATIONS COVERED ARE WITHIN TENANT ACTIVITIES WHICH
RECEIVE THEIR PERSONNEL SERVICES FROM DIFFERENT CIVILIAN PERSONNEL
OFFICES. MOREOVER, WHILE THE WHITING DATA ENTRY SECTION HAS THE SAME
AREA OF CONSIDERATION FOR PROMOTIONS AND REDUCTIONS-IN-FORCE AS THE
HEADQUARTERS IN PENSACOLA, THE ORLANDO DATA PROCESSING DIVISION HAS A
SEPARATE AREA OF CONSIDERATION FOR BOTH. IN ADDITION, THE RECORD
REVEALS MINIMAL EMPLOYEE TRANSFER AND NO EVIDENCE OF INTERCHANGE, OR
REGULAR WORK RELATED CONTACT AMONG THE THREE SEPARATE GEOGRAPHIC
LOCATIONS. FURTHER, I FIND THAT THE ALTERNATIVE UNIT AGREED UPON BY
BOTH PARTIES HEREIN OF ALL EMPLOYEES OF THE ACTIVITY LOCATED AT
PENSACOLA NAVAL AIR STATION AND WHITING NAVAL AIR STATION IS
INAPPROPRIATE. THUS, IN ADDITION TO CERTAIN OF THE CIRCUMSTANCES NOTED
ABOVE, IF FIND THAT THIS ALTERNATIVE UNIT WOULD NOT INCLUDE THE
EMPLOYEES OF THE DATA ENTRY SECTIONS OUTSIDE THE STATE OF FLORIDA AT
MERIDIAN NAVAL AIR STATION AND CORRY STATION, WHO THE RECORD REVEALS
ALSO ARE PART OF THE OPERATIONS DIVISION. HOWEVER, UNDER THE
CIRCUMSTANCES OF THIS CASE, I FIND THAT A UNIT OF ALL OF THE ACTIVITY'S
EMPLOYEES LOCATED AT THE PENSACOLA NAVAL AIR STATION WOULD BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AS SUCH A UNIT
WOULD ENCOMPASS EMPLOYEES WHO SHARE A COMMON MISSION AND LOCATION; HAVE
DAY-TO-DAY WORK CONTACT; RECEIVE ALL OF THEIR PERSONNEL SERVICES FROM
THE SAME CIVILIAN PERSONNEL OFFICE; AND ARE UNDER THE SAME AREA OF
CONSIDERATION FOR PROMOTIONS AND REDUCTIONS-IN-FORCE. IN MY VIEW, SUCH
A UNIT WOULD ENCOMPASS EMPLOYEES WHO SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
THE RECORD REVEALS THAT THERE ARE THREE EMPLOYEES IN THIS JOB
CLASSIFICATION WHO ARE DESIGNATED AS PROGRAMMING SUPERVISORS. THE
EVIDENCE ESTABLISHES THAT EACH OF THESE EMPLOYEES DIRECT THE WORK OF TEN
OR MORE COMPUTER PROGRAMMERS; HAS THE AUTHORITY TO ASSIGN WORK AND
APPROVE LEAVE; HAS PREPARED PERFORMANCE EVALUATIONS WHICH ARE
EFFECTIVE; AND HAS ISSUED LETTERS OF CAUTION. MOREOVER, THE RECORD
REFLECTS THAT RECOMMENDATIONS MADE BY THE EMPLOYEES IN THIS JOB
CLASSIFICATION REGARDING REDUCTIONS-IN-FORCE, DISCIPLINE AFTER THE
ISSUANCE OF LETTERS OF CAUTION, AND QUALITY INCREASES ARE RELIED ON AND
GENERALLY ARE FOLLOWED. UNDER THESE CIRCUMSTANCES, I FIND THAT THE
EMPLOYEES IN THIS CLASSIFICATION ARE SUPERVISORS WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER AND, THEREFORE, I SHALL EXCLUDE THEM FROM THE
UNIT FOUND APPROPRIATE.
THE RECORD REVEALS THAT THE DUTIES OF AN EMPLOYEE IN THIS
CLASSIFICATION INVOLVE DATA ADMINISTRATION AND THE RESPONSIBILITY FOR
DESIGNING DATA BASES AND ESTABLISHING STANDARDS FOR THE ADMINISTRATION
OF DATA. IN ACCOMPLISHING THESE DUTIES, AN EMPLOYEE IN THIS
CLASSIFICATION AT TIMES SERVES AS A TEAM LEADER, OR AS AN ACTING
SUPERVISOR, BUT PRIMARILY HE WORKS ALONE. THE ACTIVITY APPARENTLY SEEKS
TO HAVE AN EMPLOYEE IN THIS CLASSIFICATION EXCLUDED AS A MANAGEMENT
OFFICIAL. HOWEVER, IN MY VIEW, THE EVIDENCE ESTABLISHES THAT AN
EMPLOYEE IN THIS CLASSIFICATION WORKS IN THE ROLE OF AN EXPERT WHO
RENDERS TECHNICAL ADVICE AND RECOMMENDATIONS WITHIN ESTABLISHED
GUIDELINES, RATHER THAN AN EMPLOYEE WHO MAKES POLICY OR ACTIVELY
PARTICIPATES IN THE ULTIMATE DETERMINATION OF POLICY WITH RESPECT TO
PERSONNEL, PROCEDURES OR PROGRAMS. THEREFORE, I SHALL INCLUDE THE
EMPLOYEE IN THIS CLASSIFICATION IN THE UNIT FOUND APPROPRIATE.
THERE ARE FOUR EMPLOYEES IN THIS CLASSIFICATION WHO WORK WITH SIX
LOWER GRADE SYSTEMS ANALYSTS. ALTHOUGH THE PARTIES CONTEND THAT
EMPLOYEES IN THIS CLASSIFICATION ARE SUPERVISORS, THE RECORD REFLECTS
THAT THEIR JOB DESCRIPTION DOES NOT DESIGNATE THEM TO BE SUPERVISORS.
HOWEVER, ONE OF THE EMPLOYEES IN THIS CLASSIFICATION, WHO HAD BEEN IN
THIS POSITION FOR SOME SIX MONTHS, TESTIFIED AS TO CERTAIN SUPERVISORY
FUNCTIONS HE HAD PERFORMED ON OCCASION AND AS TO WHAT FUNCTIONS HE
ANTICIPATED PERFORMING IN THE FUTURE. UNDER THESE CIRCUMSTANCES, I FIND
THAT THERE IS INSUFFICIENT EVIDENCE TO DETERMINE WHETHER OR NOT
EMPLOYEES IN THIS CLASSIFICATION CURRENTLY ARE SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER. ACCORDINGLY, I MAKE NO FINDING AS
TO WHETHER OR NOT SUCH EMPLOYEES SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL EMPLOYEES ASSIGNED TO THE NAVAL EDUCATION AND TRAINING SYSTEMS
ACTIVITY LOCATED AT PENSACOLA NAVAL AIR STATION, INCLUDING COMPUTER
SPECIALISTS, GS-12, STANDARDS DIVISION, MANAGEMENT INFORMATION OFFICE;
EXCLUDING COMPUTER SYSTEMS ANALYSTS, GS-12, DIVISION OF ANALYSIS AND
PROGRAMMING, MANAGEMENT INFORMATION OFFICE, PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS
DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE UPON WHICH THE APPROPRIATE AREA ADMINISTRATOR
ISSUES HIS DETERMINATION WITH REGARD TO ANY INTERVENTIONS IN THIS
MATTER. THE APPROPRIATE AREA ADMINISTRATOR SHALL SUPERVISE THE
ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE TO
VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED DURING THE PAYROLL PERIOD
IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES WHO DID NOT
WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON VACATION OR ON
FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO APPEAR IN PERSON
AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO QUIT OR WERE
DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD AND WHO HAVE
NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE. THOSE ELIGIBLE
SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1960, AFL-CIO, OR BY ANY OTHER LABOR ORGANIZATION
WHICH, AS DISCUSSED BELOW, INTERVENES IN THIS PROCEEDING ON A TIMELY
BASIS.
BECAUSE THE ABOVE DIRECTION OF ELECTION IS IN A UNIT SUBSTANTIALLY
DIFFERENT THAN THAT SOUGHT BY THE AFGE, I SHALL PERMIT IT TO WITHDRAW
ITS PETITION IF IT DOES NOT DESIRE TO PROCEED TO AN ELECTION IN THE UNIT
FOUND APPROPRIATE IN THE SUBJECT CASE UPON NOTICE TO THE APPROPRIATE
AREA ADMINISTRATOR WITHIN 10 DAYS OF THE ISSUANCE OF THIS DECISION. IF
THE AFGE DESIRES TO PROCEED TO AN ELECTION, BECAUSE THE UNIT FOUND
APPROPRIATE IS SUBSTANTIALLY DIFFERENT THAN THE UNIT IT ORIGINALLY
PETITIONED FOR, I DIRECT THAT THE ACTIVITY, AS SOON AS POSSIBLE, SHALL
POST COPIES OF A NOTICE OF UNIT DETERMINATION, WHICH SHALL BE FURNISHED
BY THE APPROPRIATE AREA ADMINISTRATOR, IN PLACES WHERE NOTICES ARE
NORMALLY POSTED AFFECTING THE EMPLOYEES IN THE UNIT I HAVE HEREIN FOUND
APPROPRIATE. SUCH NOTICE SHALL CONFORM IN ALL RESPECTS TO THE
REQUIREMENTS OF SECTION 202.4(B) AND (C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. FURTHER, ANY LABOR ORGANIZATION WHICH SEEKS TO INTERVENE
IN THIS MATTER MUST DO SO IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION
202.5 OF THE ASSISTANT SECRETARY'S REGULATIONS. ANY TIMELY INTERVENTION
WILL BE GRANTED SOLELY FOR THE PURPOSE OF APPEARING ON THE BALLOT IN THE
ELECTION AMONG THE EMPLOYEES IN THE UNIT FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
DECEMBER 4, 1974
/1/ THE HEARING OFFICER REJECTED THE TENDER BY THE PETITIONER,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1960, AFL-CIO, HEREIN
CALLED AFGE, OF A COPY OF A NEGOTIATED AGREEMENT BETWEEN THE PENSACOLA
COMMISSARY STORE COMPLEX AND THE AFGE. SUCH AGREEMENT WAS ALLEGED TO
COVER A SIMILAR TYPE OF UNIT TO THAT PETITIONED FOR IN THE SUBJECT CASE.
IN THE CIRCUMSTANCES, I CONCLUDE THAT THE AGREEMENT IN QUESTION IS
RELEVANT TO THE ISSUES IN THIS CASE. ACCORDINGLY, I REVERSE THE HEARING
OFFICER'S RULING AND RECEIVE THE AGREEMENT INTO THE RECORD. BECAUSE, IN
REACHING THE DECISION IN THIS CASE, I HAVE CONSIDERED THE ENTIRE RECORD,
INCLUDING THE AGREEMENT IN QUESTION, THE HEARING OFFICER'S REJECTION OF
THE AGREEMENT AT THE HEARING WAS NOT FOUND TO CONSTITUTE A PREJUDICIAL
ERROR.
/2/ THE UNIT INCLUSIONS APPEAR AS AMENDED AT THE HEARING. THE
CLAIMED UNIT WOULD ENCOMPASS CERTAIN EMPLOYEES LOCATED AT THE NAVAL AIR
STATIONS IN PENSACOLA AND WHITING AND AT ORLANDO, FLORIDA.
/3/ THE ONLY OTHER ORGANIZATIONAL ENTITY OF THE ACTIVITY IS THE
MEMPHIS DETACHMENT IN MEMPHIS, TENNESSEE, WHICH IS NOT INCLUDED IN THE
PETITIONED FOR UNIT OF ALL EMPLOYEES OF THE ACTIVITY IN THE STATE OF
FLORIDA.
/4/ THE FOUR OTHER DIVISIONS OF THE CENTER ARE THE CORPUS CHRISTI,
SAN DIEGO, GREAT LAKES, AND NEWPORT DATA PROCESSING DIVISIONS, ALL OF
WHICH ARE LOCATED OUTSIDE THE STATE OF FLORIDA AND, THEREFORE, ARE NOT
PART OF THE PETITIONED FOR UNIT.
4 A/SLMR 465; P. 833; CASE NO. 62-3953(CA); DECEMBER 3, 1974.
U.S. DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY,
U.S. ARMY ADJUTANT GENERAL
PUBLICATIONS CENTER,
ST. LOUIS, MISSOURI
A/SLMR NO. 465
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2761, AFL-CIO,
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF EXECUTIVE ORDER 11491 BY ITS ACTION IN UNILATERALLY CHANGING THE
PROCEDURES APPLICABLE TO THE STAFFING OF VACANT POSITIONS WITHIN ITS
INSTALLATION.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THE COMPLAINT
BASED ON THE CONCLUSION THAT AN AGENCY IS UNDER NO OBLIGATION TO CONSULT
AND CONFER PRIOR TO INSTITUTING A CHANGE IN A NON-NEGOTIABLE CONDITION
OF EMPLOYMENT WHICH, AMONG OTHER THINGS, OWES ITS EXISTENCE TO HIGHER
LEVEL PUBLISHED POLICIES AND REGULATIONS THAT ARE APPLICABLE UNIFORMLY
TO MORE THAN ONE ACTIVITY. IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE VACANCIES INVOLVED HEREIN WERE FILLED IN ACCORDANCE WITH
A DEPARTMENT OF DEFENSE (DOD) REGULATION, AMENDED AS OF NOVEMBER 5,
1973, WHICH, AS A SUBORDINATE AGENCY OF THE DOD, THE RESPONDENT WAS
OBLIGATED TO FOLLOW.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED. IN REACHING THIS
DISPOSITION, THE ASSISTANT SECRETARY NOTED THAT THE EVIDENCE DID NOT
ESTABLISH THAT THE APPLICATION OF THE DOD REGULATION HEREIN WAS
INCONSISTENT WITH ANY OF THE PROVISIONS OF THE PARTIES' CURRENT
NEGOTIATED AGREEMENT.
U.S. DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY,
U.S. ARMY ADJUTANT GENERAL
PUBLICATIONS CENTER,
ST. LOUIS, MISSOURI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2761, AFL-CIO
ON SEPTEMBER 18, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-3953(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 3, 1974
/1/ IN REACHING THIS DISPOSITION, IT WAS NOTED THAT THE EVIDENCE DID
NOT ESTABLISH THAT THE DEPARTMENT OF DEFENSE REGULATION (DOD 1400-20-M,
AS AMENDED ON NOVEMBER 5, 1973) CONCERNING THE FILLING OF VACANCIES,
WHICH WAS APPLIED IN THE INSTANT CASE, WAS INCONSISTENT WITH ANY OF THE
PROVISIONS OF THE PARTIES' CURRENT NEGOTIATED AGREEMENT. COMPARE
DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING, CONVERSION AND
REPAIR, PASCAGOULA, MISSISSIPPI, A/SLMR NO. 390.
IN THE MATTER OF
U.S. DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY
U.S. ARMY ADJUTANT GENERAL PUBLICATIONS
CENTER
ST. LOUIS, MISSOURI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
LOCAL 2761, AFL-CIO
ST. LOUIS, MISSOURI
MR. JOSEPH H. MOORE
1901 OVERLAND DRIVE
OVERLAND, MISSOURI 63114
MR. PAUL A. STAPP
ROUTE 2, BOX 163
ST. PETERS, MISSOURI 63376
MR. WILLIAM MARTIN, JR.
4830 CUPPLES PLACE
ST. LOUIS, MISSOURI 63113
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON APRIL 16, 1974, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY LOCAL 2761, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER CALLED THE UNION OR AFGE),
AGAINST THE U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, U.S.
ARMY ADJUTANT GENERAL PUBLICATIONS CENTER, ST. LOUIS, MISSOURI,
(HEREINAFTER CALLED THE ARMY OR AGENCY), A NOTICE OF HEARING ON
COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL DIRECTOR FOR THE KANSAS
CITY, MISSOURI, REGION ON JUNE 26, 1974.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTION
IN UNILATERALLY CHANGING THE PROCEDURES APPLICABLE TO THE STAFFING OF
VACANT POSITIONS WITHIN ITS INSTALLATION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 13, 1974, IN ST.
LOUIS, MISSOURI. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESS AND HIS DEMEANOR, THE STIPULATION OF THE PARTIES AND OTHER
RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING
CONCLUSIONS AND RECOMMENDATIONS:
IN EARLY FEBRUARY 1974, TWO VACANCIES AROSE WITHIN THE AGENCY'S
INSTALLATION, SUPPLY CLERK GS-5 AND SUPPLY CLERK GS-4. THEREUPON, IN
ACCORDANCE WITH USUAL PROCEDURE, REFERRAL AND SELECTION REGISTERS WERE
COMPILED BY THE AGENCY FROM THE EMPLOYEE-ELIGIBLES CURRENTLY WORKING
WITHIN THE INSTALLATION AND FORWARDED TO THE RESPECTIVE SELECTING
OFFICIALS FOR APPROPRIATE ACTION. HOWEVER, IN THE INTERIM, AND BEFORE
ANY ACTION COULD BE TAKEN WITH RESPECT TO THE REFERRAL LISTS, TWO
EMPLOYEES (MEGLITSCH AND HESSEL) EMPLOYED IN ANOTHER ARMY INSTALLATION
(TROOP SUPPORT COMMAND) WHICH WAS ABOUT TO TRANSFER ITS OPERATIONS TO
ANOTHER LOCATION OUT OF STATE, APPEARED AT THE AGENCY'S PERSONNEL OFFICE
WITH TRANSFER OF FUNCTION LETTERS. /1/ BOTH EMPLOYEES, MEGLITSCH AND
HESSEL, WHO CURRENTLY HELD GS-7 POSITIONS WITH TROOP SUPPORT COMMAND,
WERE IMMEDIATELY HIRED FOR THE ABOVE MENTIONED SUPPLY CLERK VACANCIES.
ACCORDING TO MOORE, SUPERVISOR PERSONNEL STAFFING SPECIALIST, WHOSE
TESTIMONY STANDS UNCONTROVERTED, THE HIRING OF THE TWO OUTSIDE EMPLOYEES
WAS IN ACCORDANCE WITH BOTH THE GENERAL REGULATIONS ISSUED BY THE
DEPARTMENT OF DEFENSE (DOD 1400-20-M, CHANGE 4, DATED NOVEMBER 5, 1973)
APPLICABLE TO ALL MILITARY INSTALLATIONS AND PAST PRACTICE. IN THIS
LATTER CONTEXT, MOORE FURTHER TESTIFIED THAT AN IDENTICAL PROCEDURE WAS
UTILIZED IN 1973 WITH RESPECT TO "A GENEVA BROWN WHO WAS PLACED IN A
GS-6 POSITION . . . NONCOMPETITIVELY".
DOD 1400-20-M CHANGE 4, DATED NOVEMBER 5, 1973 ESTABLISHES FIVE
PRIORITY PLACEMENT GROUPS FOR FILLING VACANCIES IN MILITARY
INSTALLATIONS. PRIORITY 2, WHICH IS THE PRIORITY INVOLVED HEREIN, IS
DEFINED IN PERTINENT PART AS FOLLOWS:
EMPLOYEES WHO DECLINE OFFERS OF FUNCTIONAL TRANSFER INVOLVING
RELOCATION OUTSIDE THE COMMUTING AREA AND WHO ARE NOT ELIGIBLE FOR
OPTIONAL RETIREMENT.
OTHER SECTIONS OF DOD 1400-20-M, AS AMENDED BY THE NOVEMBER 5, 1973
CHANGE, MAKE IT CLEAR THAT PRIORITY 2 EMPLOYEES ARE AN EXCEPTION TO THE
COMPETITIVE SYSTEM AND TAKE PRECEDENCE OVER THOSE UNIT EMPLOYEES WHO HAD
PREVIOUSLY BEEN DOWNGRADED DUE TO A REDUCTION IN FORCE WITH RESPECT TO
THE FILLING OF VACANT POSITIONS.
PRIOR TO THE NOVEMBER 5, 1973 AMENDMENT, VACANCIES WERE FILLED IN
ACCORDANCE WITH CPR 300,33.9, WHICH IS THE DEPARTMENT OF THE ARMY'S
REPRINT OF THE THEN EXISTING DOD 1400-20-M REGULATION. CPR 300,33.9,
IDENTIFIED IN THE RECORD AS COMPLAINANT'S EXHIBIT NO. 2, SETS FORTH THE
FOLLOWING SCHEDULE OF REFERRAL WITH RESPECT TO VACANCIES:
(1) PRIORITY 1 EMPLOYEES . . .
(2) PRIORITY 2 EMPLOYEES IN THE COMMUTING AREA, REGARDLESS OF DOD
COMPONENT, WILL BE REFERRED TO THE SELECTING OFFICIAL ALONG WITH ANY
AVAILABLE CURRENT EMPLOYEES OF THE ACTIVITY HAVING THE VACANCY AND SUCH
SURPLUS EMPLOYEES WILL RECEIVE EQUAL CONSIDERATION FOR SELECTION.
(EMPHASIS SUPPLIED.) /2/
IT IS WELL SETTLED THAT AN AGENCY'S ACTION IN UNILATERALLY
INSTITUTING A CHANGE IN A NEGOTIABLE CONDITION OF EMPLOYMENT WITHOUT
PRIOR CONSULTATION WITH THE RECOGNIZED BARGAINING REPRESENTATIVE IS
VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE ORDER. /3/ SIMILARLY, IT
IS ALSO WELL SETTLED THAT ANY AGENCY IS UNDER NO OBLIGATION TO CONSULT
AND CONFER PRIOR TO INSTITUTING A CHANGE IN A NON-NEGOTIABLE CONDITION
OF EMPLOYMENT WHICH, AMONG OTHER THINGS, OWES ITS EXISTENCE TO "HIGHER
LEVEL PUBLISHED POLICIES AND REGULATIONS THAT ARE APPLICABLE UNIFORMLY
TO MORE THAN ONE ACTIVITY . . ." /4/
IN THE INSTANT CASE THE UNION CONTENDS THAT THE AGENCY HAS
UNILATERALLY DEVIATED FROM AN ESTABLISHED AND/OR ANNOUNCED POLICY OF
INCLUDING ALL AVAILABLE CURRENT EMPLOYEES WITHIN THE SECOND AREA OF
CONSIDERATION FOR VACANCIES OF A HIGHER GRADE. IN SUPPORT OF ITS
CONTENTION IN THIS RESPECT THE COMPLAINANT CITES THE LANGUAGE OF CPR
300,33.9, WHICH WAS THE POLICY OR REGULATION IN EFFECT PRIOR TO NOVEMBER
5, 1973. HAD THE ACTION OF THE AGENCY OCCURRED PRIOR TO NOVEMBER 5,
1973, THERE WOULD BE MERIT IN THE COMPLAINANT'S POSITION. HOWEVER, SUCH
IS NOT THE CASE.
AS NOTED ABOVE, ON NOVEMBER 5, 1973, THE DEPARTMENT OF DEFENSE ISSUED
AN AMENDED "NON-NEGOTIABLE" REGULATION APPLICABLE TO ALL INSTALLATIONS
WHEREIN THE AREA AND DEFINITION OF PRIORITY 2 WAS CHANGED. THUS,
ACCORDING TO THE AMENDMENT, FIVE RATHER THAN TWO PRIORITIES IN THE
MATTER OF REFERRALS WERE ESTABLISHED AND THE DEFINITION OF PRIORITY TWO
WAS CHANGED TO INCLUDE ONLY THOSE EMPLOYEES WHO "HAD DECLINED OFFERS OF
FUNCTIONAL TRANSFER INVOLVING RELOCATION OUTSIDE THE COMMUTING AREA AND
WHO WERE NOT ELIGIBLE FOR OPTIONAL RETIREMENT". UNLIKE CPR 300,33.9,
WHICH WAS AMENDED BY THE NOVEMBER 5, 1973 CHANGE, NO PROVISION WAS MADE
FOR THE INCLUSION IN PRIORITY NO. 2 OF THE CURRENT DOWN-GRADED EMPLOYEES
WITHIN THE AREA OF CONSIDERATION FOR THE VACANCIES CARRYING A HIGHER
GRADE.
IN VIEW OF THE FOREGOING AND ABSENT ANY EVIDENCE THAT THE AGENCY'S
ACTION IN FILLING THE TWO SUPPLY CLERK POSITIONS WAS NOT IN ACCORDANCE
WITH THE NEW AMENDMENT TO THE DOD REGULATION, (WHICH, AS A SUBORDINATE
AGENCY IT WAS OBLIGATED TO FOLLOW), OR PRIOR ACTION TAKEN THEREUNDER
SINCE NOVEMBER 5, 1973, INSUFFICIENT BASIS IS DEEMED TO EXIST FOR A
19(A)(1) OR (6) FINDING.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
DATED: SEPTEMBER 18, 1974
WASHINGTON, D.C.
/1/ TRANSFER OF FUNCTION LETTERS ARE NOTIFICATIONS TO AFFECTED
EMPLOYEES THAT THE INSTALLATION IS ABOUT TO MOVE OUTSIDE THE COMMUTING
AREA AND THAT THE EMPLOYEES HAVE THE OPTION OF MOVING WITH THE
INSTALLATION OR FORFEITING THEIR JOB RIGHTS WITH THE INSTALLATION BEING
MOVED.
/2/ INASMUCH AS CPR 300 HAS NOT BEEN INTRODUCED INTO THE RECORD IN
ITS ENTIRETY IT IS IMPOSSIBLE TO DETERMINE THE EXACT DEFINITION OF
PRIORITY 2 WHICH EXISTED PRIOR TO NOVEMBER 5, 1973. HOWEVER, IN VIEW OF
THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, IT IS ASSUMED THAT SUCH
DEFINITION WOULD BE IDENTICAL TO THAT APPEARING IN THE NOVEMBER 5, 1973
AMENDMENT TO DOD 1400-20-M. IN THIS CONNECTION, IT IS NOTED THAT
COMPLAINANT DOES NOT CONTEND THAT THE TWO OUTSIDE EMPLOYEES, MEGLITSCH
AND HESSEL WERE NOT PRIORITY TWO EMPLOYEES.
/3/ CF. VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA
A/SLMR NO. 87
/4/ UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND THE U.S.
MERCHANT MARINE ACADEMY, FLRC NO. 71A-15.
4 A/SLMR 464; P. 827; CASE NO. 21-3825(CA); DECEMBER 3, 1974.
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER
SERVICE
A/SLMR NO. 464
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(COMPLAINANT). THE COMPLAINT ALLEGED THAT THE DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL WEATHER
SERVICE (RESPONDENT) HAD VIOLATED SECTION 19(A)(1) OF THE ORDER BY
STATEMENTS MADE BY ITS SUPERVISOR, THE MANAGER OF THE RESPONDENT'S
FACILITY AT THE GREATER PITTSBURGH AIRPORT, PITTSBURGH, PENNSYLVANIA,
WHICH INTERFERED WITH THE RIGHT OF AN EMPLOYEE TO SEEK THE ADVICE AND/OR
THE ASSISTANCE OF HERE EXCLUSIVE REPRESENTATIVE, THE COMPLAINANT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT ON NOVEMBER 8, 1972, THE
RESPONDENT'S SUPERVISOR AND THE EMPLOYEE INVOLVED HAD ENGAGED IN A
CONVERSATION INVOLVING A DISPUTE OVER THE SCHEDULING OF WORK ON
THANKSGIVING DAY AND CHRISTMAS DAY, 1972. DURING THIS CONVERSATION, THE
EMPLOYEE INDICATED A DESIRE TO CONSULT WITH A REPRESENTATIVE OF THE
COMPLAINANT, AND THE SUPERVISOR REPLIED WITH STATEMENTS TO THE EFFECT
THAT HE DID NOT WANT THE COMPLAINANT MEDDLING IN THE INTERNAL AFFAIRS OF
THE FACILITY AND THAT HE WOULD MAKE THE DECISIONS REGARDING HOLIDAY WORK
ASSIGNMENTS REGARDLESS OF THE EFFORTS OF THE COMPLAINANT. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT, BY SUCH STATEMENTS, THE
SUPERVISOR HAD INDICATED TO THE EMPLOYEE THAT SHE WOULD HAVE TO DEAL
DIRECTLY WITH HIM REGARDING HER PROBLEM AND THAT, WHILE SHE COULD
CONTACT THE COMPLAINANT REGARDING THE PROBLEM, SUCH ACTION WOULD BE
FUTILE. IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, THIS CONDUCT
CONSTITUTED AN ATTEMPT BY THE SUPERVISOR TO CAUSE THE EMPLOYEE TO
RELINQUISH HER RIGHT TO CONSULT WITH HER EXCLUSIVE REPRESENTATIVE IN
VIOLATION OF SECTION 19(A)(1). THE ADMINISTRATIVE LAW JUDGE FURTHER
FOUND THAT A SUBSEQUENT CONVERSATION BETWEEN THE SUPERVISOR AND THE
EMPLOYEE INVOLVED, WHETHER VIEWED ALONE OR IN CONTEXT WITH THE EARLIER
CONVERSATION, DID NOT CONTAIN STATEMENTS WHICH COULD BE CONSTRUED AS
VIOLATIVE OF SECTION 19(A)(1). HAVING FOUND THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT
THE ASSISTANT SECRETARY ORDER THE RESPONDENT TO CEASE AND DESIST FROM
THE IMPROPER CONDUCT AND TO TAKE CERTAIN AFFIRMATIVE ACTIONS.
THE ASSISTANT SECRETARY, NOTING THE ABSENCE OF EXCEPTIONS, ADOPTED
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER
SERVICE
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
ON JULY 26, 1974, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND
RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. NO
EXCEPTIONS WERE FILED WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF
COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL
WEATHER SERVICE SHALL:
1. CEASE AND DESIST FROM:
(A) MAKING STATEMENTS TO EMPLOYEES WHICH INDICATE THAT IT WOULD BE
FUTILE TO SEEK ADVICE OR ASSISTANCE FROM THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, THEIR EXCLUSIVE REPRESENTATIVE, IN HANDLING
EMPLOYEE COMPLAINTS OR GRIEVANCES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) POST AT ITS FACILITY AT THE GREATER PITTSBURGH AIRPORT,
PITTSBURGH, PENNSYLVANIA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE NATIONAL WEATHER SERVICE'S MANAGER AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE NATIONAL WEATHER SERVICE'S MANAGER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS OF THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
DECEMBER 3, 1974
WE WILL NOT MAKE ANY STATEMENTS TO EMPLOYEES WHICH INDICATE THAT IT
WOULD BE FUTILE TO SEEK ADVICE OR ASSISTANCE FROM THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, THEIR EXCLUSIVE REPRESENTATIVE, IN
HANDLING EMPLOYEE COMPLAINTS OR GRIEVANCES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
DATED . . . BY . . .
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 14120 GATEWAY BUILDING, 3535 MARKET
STREET, PHILADELPHIA, PENNSYLVANIA, 19104.
IN THE MATTER OF
DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
DAVID JAY MARKMAN, ESQ.
WASHINGTON, D.C.
NICHOLAS RIZZO, ESQ.
GARDEN CITY, NEW YORK
GORDON J. MYATT, ADMINISTRATIVE LAW JUDGE: PURSUANT TO A COMPLAINT
FILED ON MAY 22, 1973, UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (HEREINAFTER CALLED THE
UNION) AGAINST DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL WEATHER SERVICE (HEREINAFTER CALLED THE
RESPONDENT) A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES ON DECEMBER 18, 1973.
THE COMPLAINT ALLEGED, AMONG OTHER THINGS, THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THIS MATTER ON FEBRUARY 20, 1974, IN
PITTSBURGH, PENNSYLVANIA. ALL PARTIES WERE REPRESENTED AND AFFORDED
FULL OPPORTUNITY TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE ON THE
ISSUES INVOLVED.
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND UPON THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS:
THE COMPLAINING PARTY, FRANCES KENNEY, IS AN EMPLOYEE OF THE NATIONAL
WEATHER SERVICE AT THE GREATER PITTSBURGH AIRPORT. SHE HAS BEEN
EMPLOYED BY THE WEATHER SERVICE FOR 31 YEARS. THE GRAVAMEN OF THE
COMPLAINT IS THAT THE OFFICER IN CHARGE OF MRS. KENNEY'S STATION,
ROBERT BUTLER, VIOLATED SECTION 19(A)(1) OF THE ORDER BY INTERFERING
WITH HER RIGHT TO SEEK UNION ADVISE OR AID. THE DISPUTE CENTERS AROUND
TWO CONVERSATIONS IN NOVEMBER 1972 /1/ BETWEEN MRS. KENNEY AND BUTLER.
MRS. KENNEY TESTIFIED THAT BUTLER APPROACHED HER IN LATE OCTOBER AND
OFFERED TO CHANGE HER WORK SCHEDULE SO AS TO BENEFIT HER AND JOHN
GODOVICHIK, A FELLOW EMPLOYEE, DURING THE THANKSGIVING AND CHRISTMAS
HOLIDAYS. SHE STATED THAT BUTLER SUGGESTED SHE WORK ON THANKSGIVING
DAY, NOVEMBER 23, IN GODOVICHIK'S PLACE SINCE THIS WOULD TIE IN WITH HIS
ANNUAL LEAVE, AND ALSO MEAN THAT GODOVICHIK WOULD LOSE ONLY ONE HOLIDAY
THAT YEAR. BUTLER ADDED THAT HE WAS AWARE THAT CHRISTMAS WAS MRS.
KENNEY'S BIRTHDAY, AND THAT SHE WOULD PROBABLY APPRECIATE BEING OFF THAT
DAY WITH GODOVICHIK WORKING IN HER PLACE. /2/
MRS. KENNEY TESTIFIED THAT ON ABOUT OCTOBER 27 OR 29, THE WORK
SCHEDULE WAS CHANGED TO SHOW THAT SHE WAS SCHEDULED TO GO ON A
SUPERNUMERARY SHIFT ON NOVEMBER 23, AND AN OPERATIONAL SHIFT ON DECEMBER
25. /3/ THIS WAS THE OPPOSITE OF WHAT BUTLER OFFERED IN HIS PRIOR
CONVERSATION. GODOVICHIK WAS SCHEDULED OPERATIONAL ON THE 23RD OF
NOVEMBER AND SUPERNUMERARY ON THE 25TH OF DECEMBER.
MRS. KENNEY MET WITH BUTLER ON NOVEMBER 8 TO DISCUSS THE MATTER. SHE
TOLD BUTLER THAT SHE COULD NOT BE PULLED OFF HER OPERATIONAL SHIFT AND
PLACED ON A SUPERNUMERARY SHIFT BECAUSE "THEY HAD A VOTED CYCLING
SCHEDULE." /4/ MRS. KENNEY STATED THAT SHE WAS GOING TO CONTACT JOE
VAZZO, A REGIONAL COUNCILMAN OF THE UNION, FOR AN INTERPRETATION OF
BUTLER'S SHIFT CHANGING PREROGATIVES. ACCORDING TO MRS. KENNEY, BUTLER
SAID "WHAT DOES JOE VAZZO KNOW ABOUT IT." REPLIED THAT SHE WOULD HAVE TO
FIND OUT WHAT VAZZO KNEW OR CONTACT THE REGIONAL CHAIRMAN FOR HELP.
BUTLER ALLEGEDLY STATED, "I DON'T SEE WHY YOU HAVE TO DO THIS . . .
THERE IS NO REASON TO BRING ANY UNION PEOPLE INTO THIS DISPUTE . . . I
THINK THE OFFICIAL IN CHARGE IS PERFECTLY CAPABLE OF TAKING CARE OF
THESE THINGS AND FIGURING THESE THINGS OUT." MRS. KENNEY TOLD HIM THAT
THE EXECUTIVE ORDER PERMITTED HER TO SOLICIT THE AID OF UNION PEOPLE.
BUTLER RESPONDED BY QUESTIONING THE UNION'S KNOWLEDGE OF ACTIVITY
AFFAIRS. HE ASSERTED THAT THE UNION DID NOT KNOW THE DISTINCT AND
UNIQUE SETUP OF THE WEATHER STATION, AND HE SAW NO REASON FOR ANY UNION
PEOPLE TO MEDDLE IN THE AFFAIRS OF THE GREATER PITTSBURG AIRPORT. /5/
MRS. KENNEY RESPONDED THAT SHE WOULD TALK TO VAZZO. BUTLER TOLD HER TO
GO AHEAD AND TALK TO VAZZO, BUT IT WOULD MAKE NO DIFFERENCE SINCE HE WAS
THE OFFICIAL SUPERVISOR OF THE STATION AND WOULD MAKE THE DECISIONS.
MRS. KENNEY TALKED AT LENGTH WITH VAZZO ABOUT HER SITUATION. SHE
FILED A FORMAL GRIEVANCE (WHICH SHE TERMED A CONTINUING GRIEVANCE) ABOUT
BUTLER'S MANIPULATION OF THE WORK SCHEDULE. THE GRIEVANCE WAS
UNRESOLVED AT THE TIME OF THE HEARING OF THIS MATTER.
BUTLER GAVE A DIFFERENT VERSION OF THE EVENTS LEADING UP TO THE
CONVERSATION OF NOVEMBER 8. HE STATED THAT IN AUGUST OR SEPTEMBER WHEN
HE WAS PLANNING THE GUIDANCE SCHEDULE, HE APPROACHED MRS. KENNEY AND
ASKED HER IF SHE WOULD LIKE TO BE OFF CHRISTMAS DAY RATHER THAN
THANKSGIVING DAY. ACCORDING TO BUTLER, MRS. KENNEY'S REACTION WAS
SILENCE FOLLOWED BY THE COMMENT THAT SHE WAS SUPPOSED TO WORK
THANKSGIVING DAY ANYWAY. /6/ BUTLER THEN DETERMINED THAT JOHN
GODOVICHIK DID NOT WANT TO MAKE THE CHANGE SO HE DECIDED TO DROP THE
MATTER. HE STATED THAT THE OFFER DEPENDED ENTIRELY UPON THE ACCEPTANCE
OF BY GODOVICHIK. /7/
BUTLER TESTIFIED THAT HE COULD FORCE A SCHEDULE CHANGE IF AN
EMERGENCY AROSE, BUT COULD NOT DO SO UNDER ORDINARY CIRCUMSTANCES. HE
ADDED THAT IF TWO PEOPLE DESIRED TO MAKE A SCHEDULE SWAP, HE
AUTOMATICALLY AGREED TO IT.
ON NOVEMBER 24, MRS. KENNEY SENT A MEMO TO BUTLER REQUESTING ANNUAL
LEAVE FOR DECEMBER 24, 28, 29 AND JANUARY 3, 1973. MRS. KENNEY
TESTIFIED THAT BUTLER CAME UP TO HER AND STATED HE WAS GOING TO GRANT
HER LEAVE REQUEST WITH THE EXCEPTION OF DECEMBER 24. HE TOLD HER THAT
HE WAS THE ONLY ONE AVAILABLE TO TAKE HER PLACE ON THAT DATE, AND HE DID
NOT KNOW WHETHER HE WANTED TO SUBSTITUTE FOR HER BECAUSE OF HER
ATTITUDE. MRS. KENNEY RESPONDED BY TELLING BUTLER "NOT TO STRAIN
HIMSELF." SHE STATED THAT TWO OTHER EMPLOYEES WERE SUPERNUMERARY DURING
THAT PERIOD, AND BUTLER HAD INDICATED THAT THEY WERE NOT EXPECTED TO BE
OUT. /8/ ACCORDING TO MRS. KENNEY, SHE STATED THAT HER SWITCH WAS NOT A
MATTER OF MANPOWER AND IF IT WERE, THE REGIONAL OFFICE OF THE UNION
WOULD BE INTERESTED IN LOOKING INTO THE SITUATION. SHE TESTIFIED THAT
BUTLER THEN SAID, "LOOK GIRL, STOP PUSHING ME. IF YOU DON'T STOP
PUSHING ME ON THESE THINGS, I AM GOING TO SHOW YOU HOW REALLY TOUGH I
CAN GET."
MRS. KENNEY THEN SENT BUTLER A SECOND MEMO STATING THAT HE HAD NO
BASIS FOR REFUSING HER LEAVE, AND THAT HE HAD AN UNREASONABLE AND
UNYIELDING ATTITUDE.
BUTLER ON THE OTHER HAND, TESTIFIED THAT AFTER HE RECEIVED MRS.
KENNEY'S LEAVE REQUEST, HE INFORMED HER THAT HE DID NOT THINK IT WOULD
BE POSSIBLE TO GRANT HER LEAVE ON DECEMBER 24. HE STATED THAT HE WAS
SERIOUSLY CONSIDERING CHANGING HIS PERSONAL PLANS SO HE WOULD BE
AVAILABLE TO RELIEVE HER, AND MRS. KENNEY RESPONDED "WELL, YOU HAVE A
WHOLE MONTH." HE THEN TOLD HER IT WAS NOT A MATTER OF TIME, BUT WHETHER
HE COULD ARRANGE HIS PERSONAL AFFAIRS TO COVER HER SHIFT. ACCORDING TO
BUTLER, MRS. KENNEY THEN SAID, "DON'T STRAIN YOURSELF." THIS ANGERED
BUTLER, AND HE TOLD THE EMPLOYEE HE WOULD NOT CONSIDER MAKING
ARRANGEMENTS TO ACCOMMODATE HER BECAUSE OF HER ATTITUDE.
THE SOLE ISSUE HERE IS WHETHER BUTLER'S STATEMENTS TO MRS. KENNEY
CONSTITUTE INTERFERENCE AND RESTRAINT OF THE RIGHTS ASSURED HER UNDER
THE EXECUTIVE ORDER. SECTION 1(A) OF THE ORDER STATES THAT EACH
EMPLOYEE HAS A PROTECTED RIGHT TO "FORM, JOIN AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY," AND ADMONISHES THAT
"NO INTERFERENCE OR RESTRAINT" BE PRACTICED "TO ENCOURAGE OR DISCOURAGE
MEMBERSHIP IN A LABOR ORGANIZATION." THUS, CONDUCT WHICH FALLS WITHIN
THE PROSCRIBED AREA INTERFERES WITH THE RIGHTS ASSURED EMPLOYEES UNDER
THE ORDER AND VIOLATES SECTION 19(A)(1).
IN THE INSTANT CASE, THE DISPUTE OVER THE HOLIDAY ASSIGNMENT OF MRS.
KENNEY WAS CLEARLY A MATTER WHICH AFFECTED GENERAL WORKING CONDITIONS OF
THE EMPLOYEES IN THE UNIT. HER QUESTIONING THE MANNER IN WHICH BUTLER
MADE THE ASSIGNMENTS WAS A SUBJECT OF LIGITIMATE CONCERN, NOT ONLY FOR
THE EMPLOYEE BUT ALSO FOR THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF
THE EMPLOYEES. THUS WHEN MRS. KENNEY INDICATED ON NOVEMBER 8 THAT SHE
WAS GOING TO CHECK WITH HER UNION REPRESENTATIVE REGARDING THE WAY
BUTLER SCHEDULED THE HOLIDAY ASSIGNMENTS, SHE WAS EXERCISING A RIGHT
ASSURED BY THE ORDER. IT IS HIS RESPONSE TO HER DECLARED INTENTION TO
INVOKE THIS RIGHT WHICH IS OF CONCERN HERE.
BY TELLING THE EMPLOYEE THAT HE DID NOT WANT THE UNION MEDDLING IN
THE INTERNAL AFFAIRS OF THE FACILITY AND THAT HE WOULD MAKE THE
DECISIONS REGARDING THE HOLIDAY ASSIGNMENTS, BUTLER MADE IT CLEAR TO THE
EMPLOYEE THAT SHE WOULD HAVE TO DEAL DIRECTLY WITH MANAGEMENT REGARDING
THE PROBLEM. IT IS TRUE THAT HE TOLD MRS. KENNEY TO GO AHEAD AND
CONTACT THE UNION REPRESENTATIVE, BUT HE LEFT LITTLE DOUBT THAT IS WOULD
BE A FUTILE EXERCISE. /9/ IN MY JUDGEMENT THIS IS TANTAMOUNT TO AN
ATTEMPT TO CAUSE THE EMPLOYEE TO BYPASS THE EXCLUSIVE REPRESENTATIVE
CONCERNING HER COMPLAINT AND THUS RELINQUISH THE RIGHT ASSURED HER BY
THE EXECUTIVE ORDER.
A CASE SOMEWHAT IN POINT HAS BEEN DECIDED BY THE ASSISTANT SECRETARY
IN U.S. ARMY SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO.
42. THERE MANAGEMENT TOLD THE EMPLOYEE THAT THE TIME AND EFFORT
EXPENDED ON HER GRIEVANCE COULD HAVE BEEN AVOIDED IF SHE HAD DEALT
DIRECTLY WITH MANAGEMENT RATHER THAN THROUGH THE EXCLUSIVE
REPRESENTATIVE. IT WAS HELD THAT SUCH PRACTICE IS "INCONSISTANT WITH
THE EXCLUSIVE REPRESENTATION RELATIONSHIP," AND THAT AN AGENCY MUST
"REFRAIN FROM INVITING EMPLOYEES TO DEAL DIRECTLY WITH MANAGEMENT AS TO
GRIEVANCES."
IN THE INSTANT CASE THERE IS NOT SUGGESTION THAT MRS. KENNEY'S
COMPLAINT WOULD BE ACTED UPON MORE FAVORABLY IF SHE DID NOT INVOLVE THE
UNION, BUT RATHER THAT IT WOULD BE A FUTILE AND WASTED EFFORT TO SEEK
HELP FROM THE UNION. THE ULTIMATE EFFECT, HOWEVER, IS THE SAME.
BUTLER'S STATEMENTS MADE IT QUITE EVIDENT THAT HE WAS URGING THE
EMPLOYEE TO DEAL DIRECTLY WITH HIM AND FOREGO ANY ASSISTANCE FROM THE
EXCLUSIVE REPRESENTATIVE. /10/
ACCORDINGLY, I FIND THAT BUTLER DID INTERFERE WITH AND RESTRAIN MRS.
KENNEY IN THE EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE ORDER, AND BY
THIS CONDUCT A VIOLATION OF SECTION 19(A)(1) HAS BEEN COMMITTED.
UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS, AND UPON THE
ENTIRE RECORD IN THIS CASE, PURSUANT TO SECTION 203.22(A) OF THE
REGULATIONS, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER
11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT DEPARTMENT OF
COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL
WEATHER SERVICE SHALL:
1. CEASE AND DESIST FROM:
(A) MAKING STATEMENTS TO EMPLOYEES WHICH ARE CALCULATED TO CAUSE THEM
TO DEAL DIRECTLY WITH MANAGEMENT REGARDING COMPLAINTS AND GRIEVANCES
RATHER THAN THROUGH THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
THEIR EXCLUSIVE REPRESENTATIVE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A)
OF EXECUTIVE ORDER 11491.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) POST AT ITS FACILITY AT THE GREATER PITTSBURGH AIRPORT,
PITTSBURGH, PENNSYLVANIA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE NATIONAL WEATHER SERVICE'S MANAGER AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR SIXTY CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY
POSTED. THE NATIONAL WEATHER SERVICE'S MANAGER SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED OR DEFACED OR COVERED
BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 202.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING WITHIN TWENTY DAYS OF THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: JULY 26, 1974
WASHINGTON, D.C.
WE WILL NOT MAKE ANY STATEMENTS TO EMPLOYEES WHICH INDICATE THAT IT
WOULD BE FUTILE TO SEEK ADVICE OR ASSISTANCE FROM THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES IN HANDLING EMPLOYEE COMPLAINTS OR
GRIEVANCES.
WE WILL NOT IN ANY LIKE MANNER INTERFERE WITH, RESTRAIN OR COERCE OUR
EMPLOYEES IN THE EXERCISE OF THE RIGHTS ASSURED THEM BY THE EXECUTIVE
ORDER.
DATED . . . BY . . .
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS ROOM 14120, GATEWAY
BUILDING, 3535 MARKET STREET, PHILADELPHIA, PENNSYLVANIA 19104.
/1/ UNLESS OTHERWISE INDICATED, ALL DATES HEREIN REFER TO THE YEAR
1972.
/2/ THE STATION OSTENSIBLY OPERATED UNDER A SYSTEM WHEREBY A SCHEDULE
GENERALLY COVERING PERIODS OF SIX MONTHS WAS POSTED WHICH SERVED AS A
"GUIDANCE" SCHEDULE. THIS SCHEDULE CONTAINED SEVERAL FIVE-WEEK CYCLE
ROTATIONS (FIVE PEOPLE ROTATING SHIFTS THROUGH A FIVE-WEEK PERIOD). THE
"FIXED" OR PLANNING SCHEDULE PROJECTED AHEAD FOR TWO PAY PERIODS AND WAS
SUPPOSEDLY INFLEXIBLE. THE TESTIMONY INDICATES THAT BUTLER DID NOT
PREPARE A NEW FIXED SCHEDULE AT THE EXPIRATION OF EACH TWO PAY PERIOD
STRETCH, BUT MERELY INCORPORATED THE GUIDANCE AND FIXED SCHEDULE.
/3/ A SUPERNUMERARY SHIFT IS A SWING OR EXTRA-MAN SHIFT. THE
SUPERNUMERARY TAKES THE PLACE OF AN EMPLOYEE WHO IS ON LEAVE. SINCE THE
SUPERNUMERARY IS NOT SUPPOSED TO RECEIVE HOLIDAY PAY, HE IS NOT
PERMITTED TO WORK HOLIDAYS. AN OPERATIONAL SHIFT IS ONE OF THE FIVE
REGULAR WORK PERIODS OF THE WORK DAY.
/4/ IT IS UNCLEAR WHAT MRS. KENNEY MEANT BY A "VOTED CYCLING
SCHEDULE." HOWEVER, THE INFERENCE IS THAT SHE WAS REFERRING TO THE MULTI
UNIT AGREEMENT BETWEEN THE RESPONDENT AND THE UNION.
/5/ THE EASTERN REGIONAL COUNCIL OF THE NATIONAL WEATHER SERVICE
LOCALS OF NAGE WAS AWARDED EXCLUSIVE REPRESENTATIVE STATUS FOR THE
EASTERN REGION OF THE RESPONDENT ACTIVITY IN NOVEMBER 1972.
/6/ BUTLER DENIED THAT MRS. KENNEY WAS SCHEDULED TO WORK THANKSGIVING
DAY (NOVEMBER 23). HOWEVER, THE SCHEDULE SHOWED A PARTIALLY OBLITERATED
SQUARE AROUND THAT DATE WHERE MRS. KENNEY'S NAME WAS LOCATED. BUTLER
STATED THAT IT WAS MERELY AN INDICATION TO HIM THAT NOVEMBER 23RD WAS A
DESIGNATED HOLIDAY. HE ALSO TESTIFIED THAT HE MADE THE OFFER TO MRS.
KENNEY IN AUGUST OR SEPTEMBER WHEN HE WAS "ROUGHING OUT" THE SCHEDULE,
RATHER THAN IN LATE OCTOBER AS INDICATED BY MRS. KENNEY.
/7/ GODOVICHIK TESTIFIED THAT HE KNEW NOTHING OF THE CONVERSATION
THAT TOOK PLACE BETWEEN MRS. KENNEY AND BUTLER ON NOVEMBER 8, NOR DID HE
RECALL BEING TOLD BY BUTLER THAT HE WAS TO WORK THANKSGIVING DAY. HE
STATED THAT HE WOULD HAVE BEEN WILLING TO TAKE THAT DAY OFF.
/8/ MRS. KENNEY TESTIFIED THAT IT WAS THE POLICY OF THE RESPONDENT,
WHEN AN EMPLOYEE APPLIED FOR AND WAS GRANTED LEAVE. TO HAVE THE
SUPERNUMERARY BECOME OPERATIONAL TO FILL THE VACANCY. IF THE
SUPERNUMERARY WERE NOT AVAILABLE, THEN THE OFFICIAL IN CHARGE WAS NEXT
IN LINE AS A REPLACEMENT. IF THIS COULD NOT BE ARRANGED, THEN AN
OVER-TIME, COMPENSATORY-TIME, OR A SHIFT-SWAP ARRANGEMENT WAS USUALLY
WORKED OUT. SHE STATED THAT SHE DID NOT ATTEMPT TO MAKE A SWAP HERSELF,
BUT WAITED TO SEE IF BUTLER WOULD ACCOMMODATE HER REQUEST.
/9/ ALTHOUGH THERE ARE DIFFERENCES IN THE TESTIMONY, THERE ARE FEW
SUBSTANTIVE CONFLICTS IN THE VERSIONS GIVEN BY MRS. KENNEY AND BUTLER.
WHERE THEY ARE IN CONFLICT HOWEVER, I CREDIT THE TESTIMONY OF MRS.
KENNEY.
/10/ IN ARRIVING AT THIS CONCLUSION, I AM NOT RELYING UPON THE
CONVERSATION OCCURED IN THE LATTER PART OF NOVEMBER. IN MY JUDGEMENT,
THE CONVERSATION, WHETHER VIEWED ALONE OR IN THE CONTEXT OF THE
CONVERSATION ON NOVEMBER 8, CONTAINS NOTHING WHICH CAN BE CONSTRUED AS
VIOLATING THE EXECUTIVE ORDER.
4 A/SLMR 463; P. 825; CASE NO. 50-11111(RO); DECEMBER 3, 1974.
DEPARTMENT OF DEFENSE,
DEFENSE CONTRACT AUDIT AGENCY,
CHICAGO BRANCH OFFICE
A/SLMR NO. 463
THIS CASE INVOLVES A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), FOR A UNIT OF ALL
EMPLOYEES, INCLUDING PROFESSIONALS, OF THE DEFENSE CONTRACT AUDIT AGENCY
(DCAA), CHICAGO BRANCH OFFICE. THE CLAIMED UNIT IS THE LARGEST OF
EIGHTEEN FIELD AUDIT OFFICES IN THE CHICAGO REGION OF THE DCAA. THE
ACTIVITY CONTENDED THAT THE ONLY APPROPRIATE UNIT WOULD INCLUDE ALL
EMPLOYEES OF THE CHICAGO REGION, DCAA.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PETITIONED FOR UNIT WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE REPRESENTATION. IN
REACHING THIS DETERMINATION, THE ASSISTANT SECRETARY NOTED THAT THE
CHICAGO REGIONAL OFFICE PERFORMS A CENTRALIZED PLANNING FUNCTION WHICH,
AMONG OTHER THINGS, HAS RESULTED IN INTERCHANGE AND TRANSFER OF
EMPLOYEES AMONG THE VARIOUS FIELD AUDIT OFFICES IN THE REGION.
MOREOVER, THE AREA OF CONSIDERATION FOR COMPETITIVE PROMOTIONS IS
BROADER THAN THE CLAIMED UNIT AND EFFECTIVE CONTROL AND FINAL
RESPONSIBILITY FOR MOST PERSONNEL MATTERS FOR EMPLOYEES IN THE CHICAGO
REGION RESIDES WITHIN THE REGIONAL OFFICE. UNDER THESE CIRCUMSTANCES,
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE CHICAGO BRANCH
OFFICE DID NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM CERTAIN OTHER DCAA EMPLOYEES AND THAT SUCH A
FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF DEFENSE,
DEFENSE CONTRACT AUDIT AGENCY,
CHICAGO BRANCH OFFICE
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER RONALD D. MAILHOT.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL
EMPLOYEES, INCLUDING PROFESSIONALS, OF THE DEFENSE CONTRACT AUDIT AGENCY
(DCAA), CHICAGO BRANCH OFFICE, EXCLUDING MANAGEMENT OFFICIALS,
CONFIDENTIAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS
DEFINED BY EXECUTIVE ORDER 11491, AS AMENDED. /1/
THE ACTIVITY ASSERTS THAT THE PROPOSED UNIT IS INAPPROPRIATE BECAUSE
THE EMPLOYEES IN QUESTION DO NOT POSSESS A SEPARATE AND DISTINCT
COMMUNITY OF INTEREST. IT NOTES, IN THIS REGARD, THAT THE PRINCIPAL
PERSONNEL DECISIONS CONCERNING THE EMPLOYEES SOUGHT ARE MADE AT THE
REGIONAL OFFICE LEVEL, THAT THE NATURE OF THE DCAA'S MISSION MAKES IT
NECESSARY FOR THE REGIONAL OFFICE TO REASSIGN PERSONNEL AMONG THE
VARIOUS SUBORDINATE ACTIVITIES WHICH MAKE UP THE REGION AND THAT,
THEREFORE, THE UNIT SOUGHT HEREIN WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. /2/
THE MISSION OF THE DCAA IS TO PROVIDE ALL CONTRACT AUDITING FOR THE
DEPARTMENT OF DEFENSE AND VARIOUS OTHER GOVERNMENT AGENCIES AND TO
PROVIDE ACCOUNTING AND FINANCIAL ADVISORY SERVICES REGARDING CONTRACTS
AND SUBCONTRACTS TO ALL COMPONENTS OF THE DEPARTMENT OF DEFENSE WHICH
ARE RESPONSIBLE FOR PROCUREMENT AND CONTRACT ADMINISTRATION. IT IS
DIVIDED INTO SEVEN REGIONAL OFFICES, EACH OF WHICH IS UNDER THE
SUPERVISION OF A REGIONAL MANAGER. THE CHICAGO REGION OF THE DCAA
ENCOMPASSES THE STATES OF WISCONSIN, ILLINOIS, INDIANA, OHIO, MICHIGAN
AND PARTS OF KENTUCKY AND PENNSYLVANIA, WITH HEADQUARTERS IN CHICAGO,
ILLINOIS.
THE RECORD REVEALS THAT THE CLAIMED UNIT IN THE CHICAGO BRANCH OFFICE
CONSISTS OF SOME 55 AUDITORS AND 8 CLERICAL EMPLOYEES AND THAT THIS
BRANCH OFFICE IS THE LARGEST OF THE EIGHTEEN FIELD AUDIT OFFICES WITHIN
THE CHICAGO REGION. THE CHICAGO BRANCH OFFICE HAS A CENTRAL OFFICE
WHICH IS LOCATED IN THE SAME BUILDING AS THE REGIONAL OFFICE. THE
CENTRAL OFFICE IS THE HOME BASE FOR THE BRANCH MANAGER, SUPERVISORY
PERSONNEL, THE CLERICAL STAFF, AND PART OF THE AUDITOR STAFF. THE OTHER
AUDITORS ASSIGNED TO THE CHICAGO BRANCH ARE LOCATED AT ONE OF SIX
SUB-OFFICES WHICH ARE LOCATED AS FAR AS 150 MILES FROM THE CENTRAL
OFFICE OF THE BRANCH.
THE EVIDENCE ESTABLISHES THAT THE CHICAGO REGIONAL OFFICE PRIMARILY
IS RESPONSIBLE FOR THE MAJOR OPERATIONAL DECISIONS AFFECTING EMPLOYEES
WITHIN THE REGION. THUS, BASED ON MONTHLY PLANNING REPORTS SUBMITTED BY
THE FIELD OFFICE MANAGERS, THE REGIONAL OFFICE SELECTS AUDITORS FOR
TEMPORARY DUTY ASSIGNMENTS TO OTHER FIELD AUDIT OFFICES. THE REGIONAL
MANAGER IS THE ONLY PERSON AUTHORIZED TO REASSIGN EMPLOYEES BETWEEN THE
VARIOUS FIELD AUDIT OFFICES AND THE EVIDENCE ESTABLISHES THAT EMPLOYEE
INTERCHANGE AND TRANSFER OCCURS AMONG THE VARIOUS FIELD AUDIT OFFICES IN
THE REGION BASED ON WORKLOAD REQUIREMENTS DETERMINED BY THE REGIONAL
OFFICE. FURTHER, INTERCHANGE OF EMPLOYEES BETWEEN CONTRACTORS SERVICED
BY A PARTICULAR FIELD AUDIT OFFICE AND OVERTIME WITHIN THE FIELD AUDIT
OFFICES MUST BE APPROVED BY THE REGIONAL OFFICE. TO INSURE UNIFORMITY
OF SKILLS, A REGIONAL CAREER BOARD FOR MANAGEMENT SELECTS AUDITORS WHO
ATTEND THE DEFENSE CONTRACT AUDIT INSTITUTE, A NATIONWIDE TRAINING
CENTER MAINTAINED BY THE DCAA. THE REGIONAL OFFICE, THROUGH ITS
TRAINING OFFICER, ALSO SELECTS TOPICS FOR TRAINING PROGRAMS WITHIN THE
FIELD AUDIT OFFICES. ALTHOUGH THE AREA OF CONSIDERATION FOR AUDITOR
PROMOTIONS UP TO THE GS-11 LEVEL IS RESTRICTED TO A PARTICULAR FIELD
AUDIT OFFICE, THESE PROMOTIONS BASICALLY ARE CONSIDERED NONCOMPETITIVE.
AT THE COMPETITIVE LEVELS, THE AREA OF CONSIDERATION FOR PROMOTIONS TO
GS-12 AND GS-13 ARE REGIONWIDE AND, FOR POSITIONS GS-14 AND ABOVE, THE
AREA OF CONSIDERATION IS NATIONWIDE. SELECTIONS AT THE COMPETITIVE
LEVELS ARE MADE BY THE REGIONAL MANAGER. ALTHOUGH THE BRANCH MANAGER
INTERVIEWS AND SELECTS EMPLOYEES TO BE HIRED, THE RECORD DISCLOSES THAT
THE REGIONAL OFFICE HAS NOT APPROVED SOME OF THE BRANCH OFFICE
SELECTIONS. MOREOVER, WHILE THE BRANCH MANAGER HAS THE AUTHORITY TO
DISCIPLINE EMPLOYEES, THE RECORD REVEALS THAT THE REGIONAL OFFICE HAS
REJECTED APPROXIMATELY 50 PERCENT OF THE ADVERSE ACTIONS RECOMMENDED BY
THE FIELD AUDIT MANAGERS.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT BY
THE AFGE IN THE INSTANT CASE IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER. IN THIS REGARD, PARTICULAR NOTE
WAS TAKEN OF THE CENTRALIZED PLANNING FUNCTION PERFORMED BY THE REGIONAL
OFFICE WHICH, AMONG OTHER THINGS, HAS RESULTED IN INTERCHANGE AND
TRANSFER OF EMPLOYEES AMONG THE VARIOUS FIELD AUDIT OFFICES IN THE
REGION. MOREOVER, THE AREA OF CONSIDERATION FOR COMPETITIVE PROMOTIONS
IS BROADER THAN THE CLAIMED UNIT AND EFFECTIVE CONTROL AND FINAL
RESPONSIBILITY FOR MOST PERSONNEL MATTERS FOR EMPLOYEES IN THE CHICAGO
REGION RESIDES WITHIN THE REGIONAL OFFICE. UNDER THESE CIRCUMSTANCES, I
FIND THAT THE EMPLOYEES OF THE CHICAGO BRANCH OFFICE DO NOT SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
CERTAIN OTHER DCAA EMPLOYEES AND THAT SUCH A FRAGMENTED UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL ORDER THAT THE AFGE'S PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 50-11111(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
DECEMBER 3, 1974
/1/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/2/ THE ACTIVITY SOUGHT TO EXCLUDE AS SUPERVISORS EMPLOYEES
CLASSIFIED AS AUDITORS-IN-CHARGE, GS-12, WHO ARE SENIOR PERSONS ASSIGNED
TO EACH OF THE SUB-OFFICES OF THE CHICAGO BRANCH OFFICE. IN VIEW OF THE
DISPOSITION HEREIN, I FIND IT UNNECESSARY TO DETERMINE THE SUPERVISORY
STATUS OF THE EMPLOYEES IN SUCH CLASSIFICATION.
4 A/SLMR 462; P. 822; CASE NO. 72-4659; NOVEMBER 27, 1974.
UNITED STATES DEPARTMENT
OF THE AIR FORCE,
DAVIS-MONTHAN AIR FORCE BASE,
ARIZONA
A/SLMR NO. 462
THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL UNION
F-17K, WASHINGTON, D.C., (IAFF), SOUGHT AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY, NONPROFESSIONAL GS FIREFIGHTERS AT THE DAVIS-MONTHAN AIR
FORCE BASE IN ARIZONA.
COMMENCING IN 1964, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL UNION 81, TUCSON, ARIZONA, (NFFE) REPRESENTED A UNIT OF ALL GS
EMPLOYEES AT THE BASE. THE ACTIVITY AND THE NFFE'S LATEST THREE-YEAR
NEGOTIATED AGREEMENT, WHICH WAS EXECUTED ON NOVEMBER 26, 1973, CONTAINED
THE FOLLOWING UNIT DESCRIPTION: "ALL ELIGIBLE UNITED STATES AIR FORCE
CLASSIFICATIONS ACT EMPLOYEES SERVICED BY THE CENTRAL CIVILIAN PERSONNEL
OFFICE (CCPO)." THE EVIDENCE ESTABLISHED THAT FIREFIGHTER CLASSIFICATION
EXISTED AT THE ACTIVITY, AND AT LEAST THREE CIVILIAN FIREFIGHTERS WERE
EMPLOYED IN SUCH CLASSIFICATION, AS EARLY AS JULY 1973, DURING THE TERM
OF THE PARTIES' PREVIOUS AGREEMENT; THAT APPROXIMATELY 13 CIVILIAN
FIREFIGHTER POSITIONS WERE FILLED PRIOR TO THE EXECUTION OF THE CURRENT
AGREEMENT ON NOVEMBER 26, 1973; AND THAT THE FIREFIGHTERS WERE SERVICED
BY THE SAME CIVILIAN PERSONNEL OFFICE AS WERE THE OTHER BARGAINING UNIT
EMPLOYEES. FURTHER, NO EVIDENCE WAS PRESENTED THAT THE PARTIES SOUGHT
OR INTENDED DURING THE NEGOTIATION OF THEIR CURRENT AGREEMENT TO EXCLUDE
THE CIVILIAN FIREFIGHTER CLASSIFICATION FROM THE UNIT, OR THAT THE
FIREFIGHTERS HAD NOT BEEN REPRESENTED EFFECTIVELY BY THE NFFE.
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
UNIT SOUGHT BY THE IAFF WAS COVERED BY A CURRENT NEGOTIATED AGREEMENT
AND THAT, THEREFORE, THE PETITION HEREIN WAS FILED UNTIMELY.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE PETITION BE
DISMISSED.
UNITED STATES DEPARTMENT
OF THE AIR FORCE,
DAVIS-MONTHAN AIR FORCE BASE,
ARIZONA
AND
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
LOCAL UNION F-176,
WASHINGTON, D.C.
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL UNION 81,
TUCSON, ARIZONA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LINDA G. WITTLIN.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
ACTIVITY, THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
LOCAL UNION F-176, HEREIN CALLED IAFF, AND THE INTERVENOR, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL UNION 81, HEREIN CALLED NFFE, THE
ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IAFF SEEKS AN ELECTION IN THE FOLLOWING UNIT:
ALL NONSUPERVISORY, NONPROFESSIONAL GS FIRE FIGHTERS, CREW CHIEFS,
FIRE INSPECTORS, FIRE DISPATCHERS AND TRAINING OFFICERS EMPLOYED AT AND
BY DAVIS-MONTHAN AIR FORCE BASE, ARIZONA, EXCLUDING ALL SUPERVISORS,
PROFESSIONALS, GUARDS, MANAGEMENT OFFICIALS AND EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK, EXCEPT IN A PURELY CLERICAL CAPACITY WITHIN THE
MEANING OF THE ORDER. /1/
THE NFFE AND THE ACTIVITY CONTEND THAT THE EMPLOYEES SOUGHT ARE
COVERED BY AN EXISTING THREE-YEAR NEGOTIATED AGREEMENT, SIGNED ON
NOVEMBER 26, 1973, WHICH CONSTITUTES A BAR TO THE INSTANT PETITION FILED
ON FEBRUARY 19, 1974, AND THAT THE INSTANT PETITION, IN EFFECT,
CONSTITUTES AN ATTEMPT TO SEVER THE FIREFIGHTER EMPLOYEES FROM A UNIT
CURRENTLY REPRESENTED BY THE NFFE. IN THESE CIRCUMSTANCES, THEY ASSERT
THAT THE INSTANT PETITION SHOULD BE DISMISSED. THE IAFF, ON THE OTHER
HAND, ASSERTS THAT THE FIREFIGHTER CLASSIFICATION IS NOT PART OF THE
EXISTING UNIT, BUT IS, IN EFFECT, A NEW EMPLOYEE CLASSIFICATION WHICH IS
UNREPRESENTED. IN THIS REGARD, THE IAFF CONCEDES THAT IF THE
FIREFIGHTER CLASSIFICATION WAS PART OF THE EXCLUSIVE UNIT, SEVERANCE
WOULD NOT BE WARRANTED BASED ON EXISTING PRECEDENT.
THE DAVIS-MONTHAN AIR FORCE BASE IS UNDER THE JURISDICTION OF THE
STRATEGIC AIR COMMAND FOR COMMAND PURPOSES. ITS FACILITIES ARE UTILIZED
BY OTHER MAJOR AIR COMMANDS IN ACCOMPLISHING THEIR SEPARATE AND DISTINCT
RESPONSIBILITIES. THE NFFE HAS REPRESENTED ALL GS EMPLOYEES AT THE BASE
SINCE 1964. THE CURRENT AGREEMENT, WHICH WAS NEGOTIATED BETWEEN AUGUST
28, 1973, AND SEPTEMBER 20, 1973, AND EXECUTED BY THE PARTIES ON
NOVEMBER 26, 1973, FOR A THREE YEAR TERM, CONTAINS, IN PERTINENT PART,
THE FOLLOWING UNIT DESCRIPTION ". . . ALL ELIGIBLE UNITED STATES AIR
FORCE CLASSIFICATIONS ACT EMPLOYEES SERVICED BY THE CENTRAL CIVILIAN
PERSONNEL OFFICE (CCPO), DAVIS-MONTHAN AIR FORCE BASE (DMAFB) . . ." /2/
THE 803 CIVIL ENGINEERING SQUADRON IS ONE OF THE SUBORDINATE SERVICE
UNITS COMPOSING THE 803 COMBAT SUPPORT GROUP. THE CIVIL ENGINEERING
SQUADRON IS DIRECTED BY THE BASE CIVIL ENGINEER WHO IS THE SQUADRON
COMMANDER. THE FIRE PROTECTION BRANCH OR FIRE DEPARTMENT IS ONE OF
EIGHT BRANCHES OF THE CIVIL ENGINEERING SQUADRON, EACH HAVING ITS OWN
SPECIALIZED FUNCTION AND HEADED BY A SEPARATE DIRECTOR WHOSE AUTHORITY
IS LIMITED TO HIS OWN BRANCH.
THE RECORD REVEALS THAT THE FIRE DEPARTMENT RECENTLY HAS UNDERGONE A
CONVERSION FROM ESSENTIALLY A MILITARY DEPARTMENT TO A CIVILIAN
DEPARTMENT. AT THE TIME OF THE HEARING IN THIS MATTER, THERE WERE
APPROXIMATELY 35 CIVILIAN FIREFIGHTERS EMPLOYED IN THE PROPOSED UNIT.
IN JULY 1973, THE DEPARTMENT CONSISTED OF 3 CIVILIAN AND 75 MILITARY
PERSONNEL. /3/ ONLY FOUR FIREFIGHTER POSITIONS ACTUALLY WERE FILLED BY
SEPTEMBER 1973, EIGHT MORE IN OCTOBER 1973, AND ONE IN NOVEMBER 1973.
BY NOVEMBER 1973, APPROXIMATELY 13 POSITIONS WERE FILLED. TWENTY-TWO
ADDITIONAL CIVILIAN FIREFIGHTERS WERE HIRED AFTER JANUARY 1, 1974.
APPROXIMATELY NINE AUTHORIZED POSITIONS REMAINED TO BE FILLED AT THE
TIME OF THE HEARING HEREIN.
THE EVIDENCE ESTABLISHES THAT THE CIVILIAN FIREFIGHTER CLASSIFICATION
EXISTED AT THE ACTIVITY AND THAT THREE CIVILIAN FIREFIGHTERS WERE
EMPLOYED IN SUCH CLASSIFICATION AS EARLY AS JULY 1973, DURING THE TERM
OF THE PARTIES' PRIOR AGREEMENT AND BEFORE THE LATEST AGREEMENT WAS
NEGOTIATED AND SIGNED, WHICH WAS PRIOR TO THE FILING OF THE INSTANT
PETITION. THE RECORD FURTHER SHOWS THAT THE FIREFIGHTERS ARE SERVICED
BY THE SAME CIVILIAN PERSONNEL OFFICE AS OTHER EMPLOYEES IN THE UNIT;
THAT FIREFIGHTERS, LIKE OTHER ACTIVITY EMPLOYEES, ARE ADVISED DURING
THEIR ORIENTATION OF THE EXCLUSIVE REPRESENTATIVE STATUS OF THE NFFE;
AND THAT AN OFFICIAL NFFE BULLETIN BOARD IS MAINTAINED IN THE FIRE
DEPARTMENT AREA. ADDITIONALLY, THE PARTIES STIPULATED THAT THE NFFE HAS
"FULLY, FAIRLY AND EFFECTIVELY PROVIDED REPRESENTATION TO ANY EMPLOYEE
COVERED BY ITS BARGAINING UNIT" AND THAT "THERE HAS BEEN NO REJECTION OF
REPRESENTATION" WITH REGARD TO THE EMPLOYEES IN THE FIRE DEPARTMENT.
BASED ON THE CIRCUMSTANCES HEREIN, I CONCLUDE THAT THE REQUESTED
EMPLOYEES SOUGHT BY THE IAFF ARE PART OF THE EXISTING UNIT AT THE
ACTIVITY COVERED BY A NEGOTIATED AGREEMENT AND THAT THE INSTANT
PETITION, THEREFORE, WAS FILED UNTIMELY. IN REACHING THE DETERMINATION
HEREIN, PARTICULAR NOTE WAS TAKEN OF THE FACT THAT THE CIVILIAN
FIREFIGHTER CLASSIFICATION EXISTED AT THE ACTIVITY, AND THREE CIVILIAN
FIREFIGHTERS WERE EMPLOYED IN THAT CLASSIFICATION, AT LEAST AS EARLY AS
JULY 1973, DURING THE TERM OF THE PREVIOUS NEGOTIATED AGREEMENT; THAT
APPROXIMATELY 13 CIVILIAN FIREFIGHTER POSITIONS WERE FILLED PRIOR TO THE
EXECUTION OF THE CURRENT NEGOTIATED AGREEMENT ON NOVEMBER 26, 1973;
THAT CIVILIAN FIREFIGHTER EMPLOYEES, AS IN THE CASE OF THE OTHER
EMPLOYEES IN THE UNIT, ARE SERVICED BY THE SAME CIVILIAN PERSONNEL
OFFICE; AND THAT THERE WAS NO EVIDENCE PRESENTED THAT THE NFFE AND THE
ACTIVITY SOUGHT OR INTENDED, DURING THE NEGOTIATION OF THEIR CURRENT
AGREEMENT, TO EXCLUDE THE CIVILIAN FIREFIGHTER CLASSIFICATION FROM THE
UNIT. MOREOVER, NO EVIDENCE WAS PRESENTED TO INDICATE THAT CIVILIAN
EMPLOYEES IN THE FIREFIGHTER CLASSIFICATION WERE NOT REPRESENTED
EFFECTIVELY BY THE NFFE. BASED ON THESE CONSIDERATIONS, I FIND THAT THE
NOVEMBER 26, 1973, NEGOTIATED AGREEMENT, WHICH COVERS ALL ELIGIBLE
UNITED STATES AIR FORCE CLASSIFICATION ACT EMPLOYEES AND ENCOMPASSES ALL
EXISTING CLASSIFICATIONS OF SUCH EMPLOYEES AT THE BASE, CONSTITUTES A
BAR TO THE INSTANT PETITION AS SUCH PETITION DID NOT MEET THE TIMELINESS
REQUIREMENTS SET FORTH IN SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. /4/ ACCORDINGLY, I FIND THAT THE DISMISSAL OF THE INSTANT
PETITION IS WARRANTED. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 72-4659 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 27, 1974
/1/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/2/ THE PARTIES HAD A PRIOR NEGOTIATED AGREEMENT WHICH TERMINATED ON
NOVEMBER 23, 1973.
/3/ ON JULY 1, 1973, THE FIRE CHIEF WAS AUTHORIZED TO HIRE SIX
ADDITIONAL FIREFIGHTERS AND ON OCTOBER 1, 1973, ANOTHER AUTHORIZATION
WAS OBTAINED TO HIRE NINE ADDITIONAL FIREFIGHTERS. SEVENTEEN POSITIONS
HAD BEEN AUTHORIZED BY AUGUST 1973, 21 BY JANUARY 1974, AND 46 BY APRIL
1974.
/4/ SECTION 202.3(C) PROVIDES, IN PERTINENT PART, THAT "WHEN AN
AGREEMENT COVERING A CLAIMED UNIT HAS BEEN SIGNED BY AN ACTIVITY AND THE
INCUMBENT EXCLUSIVE REPRESENTATIVE, A PETITION FOR EXCLUSIVE RECOGNITION
OR OTHER ELECTION PETITION WILL BE CONSIDERED TIMELY WHEN FILED AS
FOLLOWS: (1) NOT MORE THAN NINETY (90) DAYS AND NOT LESS THAN SIXTY
(60) DAYS PRIOR TO THE TERMINAL DATE OF AN AGREEMENT HAVING A TERM OF
THREE (3) YEARS OR LESS FROM THE DATE IT WAS SIGNED . . ."
/5/ THE ASSISTANT REGIONAL DIRECTOR REFERRED TO THE ASSISTANT
SECRETARY A MOTION TO DISMISS FILED BY THE ACTIVITY AND AN OPPOSITION
MOTION FILED BY THE IAFF. IN VIEW OF THE DISPOSITION HEREIN, IT WAS
CONSIDERED UNNECESSARY TO PASS UPON THE ACTIVITY'S MOTION.
4 A/SLMR 461; P. 819; CASE NO. 61-2341(RO); NOVEMBER 27, 1974.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
SAN FRANCISCO, CALIFORNIA,
DEFENSE CONTRACT ADMINISTRATION
SERVICES DISTRICT (DCASD),
SALT LAKE CITY, UTAH
A/SLMR NO. 461
THIS CASE AROSE AS THE RESULT OF A PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3540, AFL-CIO, SEEKING A UNIT
OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES EMPLOYED BY THE
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, SALT LAKE CITY, UTAH.
THE ACTIVITY CONTENDED THAT THE PETITIONED FOR UNIT WAS NOT APPROPRIATE
BECAUSE IT EXCLUDES OTHER EMPLOYEES OF THE REGION WHO SHARE A COMMUNITY
OF INTEREST WITH EMPLOYEES IN THE SOUGHT UNIT, AND FURTHER, THAT THE
PETITIONED FOR UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY
OF AGENCY OPERATIONS.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE CLAIMED UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN THIS REGARD, THE ASSISTANT SECRETARY
NOTED THAT THE PETITIONED FOR EMPLOYEES SHARE COMMON OVERALL
DISTRICT-WIDE SUPERVISION, PERFORM THEIR WORK WITHIN AN ASSIGNED
GEOGRAPHICAL LOCALITY, AND DO NOT INTERCHANGE OR HAVE JOB CONTACT WITH
OTHER EMPLOYEES OF THE REGION. MOREOVER, ANY TRANSFERS OCCURRED ONLY IN
SITUATIONS INVOLVING PROMOTION OR REDUCTION-IN-FORCE PROCEDURES. BASED
ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
PETITIONED FOR UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT AN ELECTION BE
CONDUCTED IN THE UNIT FOUND APPROPRIATE.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR),
SAN FRANCISCO, CALIFORNIA,
DEFENSE CONTRACT ADMINISTRATION SERVICES
DISTRICT (DCASD),
SALT LAKE CITY, UTAH /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PAUL HIROKAWA.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEF FILED BY THE
ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3540,
AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES EMPLOYED BY THE DEFENSE
CONTRACT ADMINISTRATION DISTRICT (DCASD), SALT LAKE CITY, UTAH,
EXCLUDING EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
THE ACTIVITY CONTENDS THAT THE CLAIMED UNIT IS NOT APPROPRIATE
BECAUSE IT EXCLUDES EMPLOYEES WHO SHARE A COMMUNITY OF INTEREST TOGETHER
WITH THE EMPLOYEES IN THE SOUGHT UNIT AND, FURTHER, THAT THE SOUGHT UNIT
WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
IN THE ACTIVITY'S VIEW, THE ONLY APPROPRIATE UNIT IN THIS SITUATION IS
A UNIT COMPOSED OF ALL ELIGIBLE EMPLOYEES OF THE DEFENSE CONTRACT
ADMINISTRATION REGION (DCASR), SAN FRANCISCO, CALIFORNIA.
THE DCASR, SAN FRANCISCO, IS ONE OF ELEVEN SUCH REGIONS OF THE
DEFENSE SUPPLY AGENCY (DSA) AND IS A PRIMARY LEVEL FIELD ACTIVITY OF THE
DSA. IT PROVIDES CONTRACT ADMINISTRATION SERVICES AND SUPPORT FOR THE
DEPARTMENT OF DEFENSE, AS WELL AS OTHER FEDERAL AGENCIES, AND
ENCOMPASSES A GEOGRAPHIC AREA WHICH INCLUDES THE STATES OF UTAH,
MONTANA, IDAHO, WASHINGTON, OREGON, ALASKA, HAWAII, AS WELL AS THE
MARIANA ISLANDS, MOST OF NEVADA AND NORTHERN CALIFORNIA. THERE ARE TWO
DCASD'S WITHIN DCASR, SAN FRANCISCO; NAMELY, DCASD, SEATTLE, AND DCASD,
SALT LAKE CITY. IN ADDITION, THE REGION INCLUDES SIX DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICES (DCASO'S) LOCATED IN PORTLAND, OREGON,
AND AT CONTRACTORS' OFFICES AT THE FMC CORPORATION, PHILCO CORPORATION,
SYLVANIA CORPORATION, WESTINGHOUSE CORPORATION AND APPLIED TECHNOLOGY
DIVISION OF ITEK CORPORATION (ATD). WITH THE EXCEPTION OF THE DCASO IN
PORTLAND, WHICH REPORTS THROUGH THE DCASD IN SEATTLE, ALL DCASO'S AND
DCASD'S WITHIN THE REGION REPORT DIRECTLY TO DCASR HEADQUARTERS IN SAN
FRANCISCO. APPROXIMATELY 1,250 CIVILIAN EMPLOYEES ARE EMPLOYED
THROUGHOUT THE DCASR, SAN FRANCISCO, WITH MOST OF THE EMPLOYEES LOCATED
IN NORTHERN CALIFORNIA.
THE DCASR, SAN FRANCISCO, IS HEADED BY A REGIONAL COMMANDER (A
MILITARY OFFICER) WHOSE OFFICE IS LOCATED AT THE DCASR HEADQUARTERS IN
SAN FRANCISCO. DIRECTLY UNDER THE COMMANDER, AND LOCATED AT THE
HEADQUARTERS, ARE A NUMBER OF OFFICES AND DIRECTORATES WHICH ARE
RESPONSIBLE FOR PLANNING AND MONITORING ALL FACETS OF THE DCASR'S
OPERATIONS. IN THIS REGARD, THE OFFICES ARE CONCERNED PRIMARILY WITH
MATTERS REGARDING PLANNING, ADMINISTRATION, CONTRACT COMPLIANCE PROBLEMS
AND SECURITY PROBLEMS AT DEFENSE PLANTS, WHILE THE DIRECTORATES ARE
CONCERNED WITH MATTERS REGARDING CONTRACT ADMINISTRATION, PRODUCTION AND
QUALITY ASSURANCE. THERE IS NO COLLECTIVE BARGAINING HISTORY IN THE
DCASR, SAN FRANCISCO, OR WITH RESPECT TO ANY OF ITS COMPONENT
ORGANIZATIONS, INCLUDING DCASD, SALT LAKE CITY.
THE SALT LAKE CITY DISTRICT GEOGRAPHICALLY ENCOMPASSES THE STATE OF
UTAH AND PORTIONS OF SOUTHERN IDAHO. IT IS UNDER THE SUPERVISION OF A
DISTRICT COMMANDER (A MILITARY OFFICER) AND ORGANIZATIONALLY IS
SUBDIVIDED TO CORRESPOND WITH THE DIRECTORATES OF THE REGIONAL
HEADQUARTERS. THUS, WITHIN THE DCASD, THERE IS A DIVISION OF CONTRACT
ADMINISTRATION, A DIVISION OF PRODUCTION, A DIVISION OF QUALITY
ASSURANCE, AND AN OFFICE OF PLANNING AND ADMINISTRATION. THE COMMANDER
OF THE DISTRICT REPORTS DIRECTLY TO THE REGIONAL COMMANDER.
THE RECORD REVEALS THAT ALL EMPLOYEES ASSIGNED TO THE DCASD ARE
ASSIGNED TO ONE OF THE DIVISIONS COMPRISING THE DCASD, THAT EMPLOYEES
ARE ASSIGNED TO A PARTICULAR DIVISION AND SHARE COMMON JOB
CLASSIFICATIONS WITH OTHER EMPLOYEES IN THE SAME DIVISION, AND THAT
EMPLOYEES SO CLASSIFIED UTILIZE SIMILAR SKILLS AND PERFORM SUBSTANTIALLY
SIMILAR DUTIES. ALL EMPLOYEES OF THE DCASD PERFORM THEIR DUTIES WITHIN
THE GEOGRAPHICAL AREA OF THE DCASD AND SUBMIT DAILY REPORTS OF THEIR
ACTIVITIES TO THEIR FIRST-LINE SUPERVISORS, WHO THEN TRANSMIT THESE
REPORTS TO BRANCH OR DIVISION CHIEFS OF THE DCASD AND, THEREAFTER, TO
THE DISTRICT COMMANDER. THESE REPORTS ULTIMATELY ARE TRANSMITTED TO THE
REGION'S HEADQUARTERS' OFFICE. THE RECORD ALSO REVEALS THAT ALL OF THE
EMPLOYEES OF THE DCASD PERFORM THEIR DUTIES PURSUANT TO POLICIES AND
PROCEDURES ESTABLISHED BY THE REGIONAL HEADQUARTERS' STAFF AND THAT
EMPLOYEES WITHIN THE REGION ARE SUBJECT TO UNIFORM PERSONNEL POLICIES
AND JOB BENEFITS. THERE IS NO EVIDENCE OF ANY DEGREE OF INTERCHANGE OR
JOB CONTACT BETWEEN THE EMPLOYEES OF THE DCASD AND EMPLOYEES OF ANY
OTHER ORGANIZATIONAL COMPONENTS OF THE REGION OUTSIDE OF HEADQUARTERS,
OR BETWEEN EMPLOYEES OF THE DCASD AND EMPLOYEES OF THE REGIONAL
HEADQUARTERS' STAFF, OTHER THAN THE DAILY REPORTS INDICATED ABOVE.
WHILE THE EVIDENCE ESTABLISHES THAT THERE IS SOME DEGREE OF TRANSFER OF
EMPLOYEES AMONG THE VARIOUS ORGANIZATIONAL COMPONENTS WITHIN THE REGION,
GENERALLY SUCH TRANSFERS ARE WITHIN THE CONTEXT OF PROMOTION OR
REDUCTION-IN-FORCE PROCEDURES. THE RECORD DISCLOSES THAT THE AREA OF
CONSIDERATION FOR PROMOTIONS AND REDUCTIONS-IN-FORCE FOR ALL EMPLOYEES
CLASSIFIED GS-8 AND ABOVE IS REGIONWIDE, WHEREAS THE AREA OF
CONSIDERATION FOR PROMOTIONS AND REDUCTIONS-IN-FORCE FOR EMPLOYEES
CLASSIFIED GS-7 AND BELOW, IS WITHIN THE GEOGRAPHIC AREA OF THE
DISTRICT. WHILE ALL EMPLOYEES ASSIGNED TO THE DCASD, WITH ONE
EXCEPTION, WORK OUT OF THE DCASD OFFICE, THE EVIDENCE ESTABLISHES THAT A
SIGNIFICANT NUMBER PERFORM THEIR DUTIES AT THE SITES WHERE CONTRACTS FOR
PARTICULAR PRODUCTS OR SERVICES ARE BEING PERFORMED AND, TO THIS EXTENT,
THE WORKING CONDITIONS OF THE EMPLOYEES MAY VARY FROM ONE ASSIGNMENT TO
ANOTHER. THE RECORD FURTHER REFLECTS THAT WHILE TRAINING PROGRAMS ARE
PREPARED BY HEADQUARTERS' STAFF PERSONNEL, GENERALLY THEY ARE
ADMINISTERED WITHIN THE DCASD, OFTEN BY DCASD PERSONNEL.
UNDER ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT
HEREIN IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. PARTICULARLY NOTED IN THIS REGARD WERE THE FACTS THAT THE
PETITIONED FOR EMPLOYEES SHARE COMMON OVERALL DISTRICT-WIDE SUPERVISION,
PERFORM THEIR DUTIES WITHIN THE ASSIGNED GEOGRAPHICAL LOCALITY OF THE
DCASD, AND DO NOT INTERCHANGE OR HAVE JOB CONTACT WITH ANY OTHER
EMPLOYEES OF THE REGION. MOREOVER, ANY TRANSFER TO OR FROM THE DISTRICT
OFFICE OCCURS ONLY IN SITUATIONS INVOLVING PROMOTION OR
REDUCTION-IN-FORCE PROCEDURES. BASED ON THESE CONSIDERATIONS, I FIND
THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES OF THE REGION. FURTHER, BASED ON THE FOREGOING
CONSIDERATIONS, I FIND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. /2/
ACCORDINGLY, I FIND THAT THE FOLLOWING UNIT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS
AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES EMPLOYED BY THE
DEFENSE CONTRACT ADMINISTRATION DISTRICT, SALT LAKE CITY, UTAH,
EXCLUDING EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
AS STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. /3/ HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY
SECTION 10(B)(4) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A
UNIT WITH NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE
PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION IN SUCH A UNIT. ACCORDINGLY,
THE DESIRES OF THE PROFESSIONAL EMPLOYEES AS TO INCLUSION IN A UNIT WITH
NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT THAT SEPARATE ELECTIONS BE CONDUCTED IN THE FOLLOWING VOTING
GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES EMPLOYED BY THE DEFENSE
CONTRACT ADMINISTRATION DISTRICT, SALT LAKE CITY, UTAH, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
VOTING GROUP (B): ALL NONPROFESSIONAL EMPLOYEES EMPLOYED BY THE
DEFENSE CONTRACT ADMINISTRATION DISTRICT, SALT LAKE CITY, UTAH,
EXCLUDING ALL PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3540, AFL-CIO.
THE EMPLOYEES IN THE PROFESSIONAL VOTING GROUP (A) WILL BE ASKED TWO
QUESTIONS ON THEIR BALLOTS: (1) WHETHER OR NOT THEY WISH TO BE INCLUDED
WITH THE NONPROFESSIONAL EMPLOYEES FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION, AND (2) WHETHER OR NOT THEY WISH TO BE REPRESENTED FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO. IN THE EVENT THAT A MAJORITY OF THE
VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF INCLUSION IN THE
SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF VOTING GROUP (A)
SHALL BE COMBINED WITH THOSE OF VOTING GROUP (B).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST FOR
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THEY WILL BE
TAKEN TO HAVE INDICATED THEIR DESIRE TO CONSTITUTE A SEPARATE UNIT, AND
AN APPROPRIATE CERTIFICATION WILL BE ISSUED BY THE AREA ADMINISTRATOR
INDICATING WHETHER OR NOT THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3540, AFL-CIO, WAS SELECTED BY THE PROFESSIONAL
EMPLOYEES.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN
UPON THE RESULTS OF THE ELECTION AMONG THE PROFESSIONAL EMPLOYEES.
HOWEVER, I WILL NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE
APPROPRIATE UNIT:
(1) IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES DOES NOT VOTE FOR
INCLUSION IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THAT
THE FOLLOWING UNITS ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL EMPLOYEES EMPLOYED BY THE DEFENSE CONTRACT
ADMINISTRATION DISTRICT, SALT LAKE CITY, UTAH, EXCLUDING ALL
NONPROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
(B) ALL NONPROFESSIONAL EMPLOYEES EMPLOYED BY DEFENSE CONTRACT
ADMINISTRATION DISTRICT, SALT LAKE CITY, UTAH, EXCLUDING ALL
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
(2) IF A MAJORITY OF THE PROFESSIONAL EMPLOYEES VOTES FOR INCLUSION
IN THE SAME UNIT AS THE NONPROFESSIONAL EMPLOYEES, I FIND THE FOLLOWING
UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE
MEANING OF SECTION 10 OF THE ORDER:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES EMPLOYED BY THE
DEFENSE CONTRACT ADMINISTRATION DISTRICT, SALT LAKE CITY, UTAH,
EXCLUDING EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THE PERIOD BECAUSE THEY WERE
OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY
SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE
EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3540, AFL-CIO.
DATED, WASHINGTON, D.C.
NOVEMBER 27, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ CF. DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), CLEVELAND, OHIO, ETC., A/SLMR NO. 372. FOR THE
REASONS SET FORTH IN A/SLMR NO. 372, I REJECT THE CONTENTION MADE BY THE
ACTIVITY THAT THE CERTIFICATION OF A LESS THAN REGIONWIDE UNIT WOULD
LIMIT THE SCOPE OF NEGOTIATIONS SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED DISCRETIONARY AUTHORITY OF THE COMMANDER OF THE DISTRICT
OFFICE.
/3/ THE PARTIES STIPULATED, AND I FIND, THAT THREE EMPLOYEES IN THE
CLAIMED UNIT WHO WERE CLASSIFIED AS MECHANICAL ENGINEER, ELECTRICAL
ENGINEER, OR INDUSTRIAL ENGINEER MET THE CRITERIA FOR PROFESSIONAL
EMPLOYEES WITHIN THE MEANING OF THE ORDER. CF. DEPARTMENT OF INTERIOR,
BUREAU OF LAND MANAGEMENT, RIVERSIDE DISTRICT AND LAND OFFICE, A/SLMR
NO. 170.
4 A/SLMR 460; P. 816; CASE NO. 62-3832(DR); NOVEMBER 27, 1974.
U.S. GEOLOGICAL SURVEY,
DEPARTMENT OF THE INTERIOR,
ROLLA, MISSOURI
A/SLMR NO. 460
PURSUANT TO THE DECISION AND REMAND OF THE ASSISTANT SECRETARY IN
A/SLMR NO. 413, A SUBSEQUENT HEARING WAS HELD IN THIS CASE FOR THE
PURPOSE OF ADDUCING EVIDENCE ON THE SUPERVISORY STATUS OF THE PETITIONER
AT THE TIME HE FILED THE INSTANT DECERTIFICATION PETITION. LOCAL 934,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), CONTENDED THAT AT ALL
TIMES MATERIAL TO DRAWING UP, CIRCULATING AND ARRANGING THE PETITION,
THE PETITIONER WAS A SUPERVISOR. THE NFFE'S CONTENTION WAS BASED UPON
THE FACT THAT DURING THE PERIOD SEPTEMBER 1, 1973, TO OCTOBER 24, 1973,
THE PETITIONER HAD ENGAGED IN "COMPILATION REVIEW", WHICH THE NFFE
CONTENDED WAS A SUPERVISORY FUNCTION.
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONER WAS NOT A
SUPERVISOR WITHIN THE MEANING OF THE ORDER AND, THEREFORE, WAS ELIGIBLE
TO FILE THE DECERTIFICATION PETITION. HE BASED HIS FINDING ON THE FACT
THAT WHEN THE PETITIONER WAS ENGAGED IN COMPILATION REVIEW, HE DID NOT
EXERCISE ANY OF THE DUTIES ATTRIBUTED TO A SUPERVISOR AS ENUMERATED IN
SECTION 2(C) OF THE EXECUTIVE ORDER AND THAT, IN FACT, THE JOB AMOUNTED
MERELY TO A TECHNICAL REVIEW UNDER THE OVERALL SUPERVISION OF HIS
SECTION CHIEF.
ACCORDINGLY, PURSUANT TO THE ASSISTANT SECRETARY'S FINDING IN A/SLMR
NO. 413, THAT THE DECERTIFICATION PETITION HAD BEEN TIMELY FILED AND THE
ABOVE FINDING THAT THE PETITIONER WAS ELIGIBLE TO FILE THE
DECERTIFICATION PETITION, THE ASSISTANT SECRETARY ORDERED THAT AN
ELECTION BE HELD IN THE UNIT DESCRIBED IN THE PETITION, WHICH HE FOUND
TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
U.S. GEOLOGICAL SURVEY,
DEPARTMENT OF THE INTERIOR,
ROLLA, MISSOURI
AND
IRVIN J. HAWKINS
AND
LOCAL 934, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD IN THE SUBJECT CASE. THEREAFTER, ON JULY
11, 1974, I ISSUED A DECISION AND REMAND /1/ , IN WHICH, AMONG OTHER
THINGS, I ORDERED THAT THE SUBJECT CASE BE REMANDED TO THE APPROPRIATE
ASSISTANT REGIONAL DIRECTOR FOR THE PURPOSE OF REOPENING THE HEARING TO
OBTAIN EVIDENCE ON THE PETITIONER'S SUPERVISORY STATUS AT THE TIME HE
FILED THE INSTANT DECERTIFICATION PETITION. PURSUANT TO THE ABOVE-NOTED
DECISION AND REMAND, ON AUGUST 28 AND 29, 1974, A HEARING WAS HELD
BEFORE HEARING OFFICER CLARENCE E. TEETERS. THE HEARING OFFICER'S
RULINGS MADE AT THE HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE
HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THOSE FACTS DEVELOPED
AT THE INITIAL AND REOPENED HEARINGS, I FIND:
THE PETITIONER, IRVIN J. HAWKINS, SEEKS THE DECERTIFICATION OF LOCAL
934, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN CALLED THE
INTERVENOR, WHICH CURRENTLY REPRESENTS EXCLUSIVELY A UNIT OF ALL GENERAL
SCHEDULE AND WAGE BOARD EMPLOYEES, INCLUDING THOSE IN PRINTING AND
LITHOGRAPHIC POSITIONS, EMPLOYED BY THE U.S. GEOLOGICAL SURVEY,
DEPARTMENT OF THE INTERIOR, ROLLA, MISSOURI.
THE INTERVENOR CONTENDED THAT THE PETITION SHOULD BE DISMISSED ON THE
GROUNDS THAT THERE EXISTED AN AGREEMENT BAR TO THE ELECTION, AND THAT,
AT ALL TIMES MATERIAL "TO DRAWING UP, CIRCULATING AND ARRANGING THE
PETITION," THE PETITIONER WAS A SUPERVISOR. /2/ IT ALSO CONTENDED THAT
THE PETITIONER'S ACTIVITY PRIOR TO SEPTEMBER 1, 1973, WOULD "GIVE THE
IMPRESSION TO OTHER EMPLOYEES THAT HE WAS A SUPERVISOR." THE PETITIONER,
ON THE OTHER HAND, ASSERTED THAT DURING THE PERIOD BETWEEN SEPTEMBER 1,
1973, AND OCTOBER 24, 1973, IN WHICH HE WAS DRAWING UP, CIRCULATING AND
ARRANGING THE PETITION, HE DID NOT EXERCISE ANY SUPERVISORY AUTHORITY.
THE ACTIVITY WAS IN AGREEMENT WITH THE PETITIONER'S POSITION AND NOTED
IN THIS REGARD, THAT IN THE ORIGINAL ELECTION HELD IN 1971 THE
INTERVENOR DID NOT RAISE A QUESTION AS TO THE SUPERVISORY STATUS OF THE
PETITIONER AND WAS DOING SO IN THIS INSTANCE ONLY BECAUSE THE PETITIONER
HAD FILED A DECERTIFICATION PETITION.
THE PETITIONER IS ONE OF THE 30 EMPLOYEES FOUND IN THE ACITIVITY'S
BRANCH OF PHOTOGRAMMETRY. HE IS ONE OF THE THREE ADVANCED LEVEL GS-11
CARTOGRAPHIC TECHNICIANS IN ONE OF THE TWO UNITS OF COMPILATION WITHIN
THE BRANCH. THE BASIC FUNCTION PERFORMED BY THE PETITIONER AND THE
OTHER CARTOGRAPHIC TECHNICIANS IS TO TRANSFER INFORMATION FROM AERIAL
PHOTOGRAPHS, ALONG WITH OTHER INFORMATION SUPPLIED BY FIELD PERSONNEL,
ONTO A COMPILATION SHEET OR "FLIMSY", WHICH IS THE BASIS FOR THE
PRODUCTION OF MAPS. DUE TO THE NEED FOR A HIGH DEGREE OF ACCURACY IN
THESE MAPS, A COMPILATION REVIEW IS DONE ON EACH COMPILATION SHEET.
COMPILATION REVIEW IS THE PRIME RESPONSIBILITY OF THE SECTION CHIEF WHO
RECEIVES ADDITIONAL HELP FROM THE FIRST-LINE SUPERVISORS. WHEN, BECAUSE
OF WORKLOAD, THE SECTION CHIEF IS UNABLE TO HANDLE THE COMPILATION
REVIEW OF ALL THE COMPILATION SHEETS, HE WILL ASSIGN THIS WORK TO HIS
GS-11 AND, IN SOME CASES, HIS GS-9 SENIOR CARTOGRAPHIC TECHNICIANS WHO
WILL PERFORM THE REQUIRED COMPILATION REVIEW UNDER THE SUPERVISION OF
THE SECTION CHIEF. WHEN THE SENIOR TECHNICIAN HAS FINISHED THE REVIEW
AND RECORDED ANY ERRORS TO BE CORRECTED OR DETAILS THAT WERE OMITTED, HE
BRINGS THE COMPILATION SHEET TO THE SECTION CHIEF WHO CHECKS IT FOR
ERRORS. ONCE THIS IS ACCOMPLISHED, THE SECTION CHIEF RETURNS IT TO THE
SUPERVISOR OF THE EMPLOYEE INVOLVED TO MAKE THE NECESSARY CORRECTIONS OR
ADDITIONS.
WHEN HANDLING COMPILATION REVIEW, THE SENIOR TECHNICIAN EXERCISES NO
CONTROL OR AUTHORITY OVER THE EMPLOYEE OR EMPLOYEES WHOSE WORK HE IS
REVIEWING AND, AS THE COMPILATION REVIEW FUNCTION IS STRICTLY TECHNICAL
IN NATURE, HE DOES NOT MAKE ANY EVALUATION OF AN EMPLOYEE OR EMPLOYEES'
WORK PERFORMANCE. IN THIS REGARD, THE ACTIVITY HAS VARIOUS CODES WHICH
IT USES TO KEEP TRACK OF TIME USAGE AND, WHEN THE SENIOR TECHNICIAN IS
PERFORMING COMPILATION REVIEW, HIS WORK IS CHARGED TO A CATCH-ALL CODE
AS OPPOSED TO A SUPERVISORY CODE.
THE INTERVENOR, IN ASSERTING THAT THE PETITIONER IS A SUPERVISOR,
RELIES PARTICULARLY ON THE FACT THAT DURING THE PERIOD SEPTEMBER 16 TO
SEPTEMBER 30, 1973, THE PETITIONER SPENT 20 HOURS PERFORMING COMPILATION
REVIEW. THE INTERVENOR DID NOT RAISE OR PRESENT ANY FURTHER EVIDENCE TO
SUPPORT ITS ALLEGATION THAT THE PETITIONER WAS A SUPERVISOR. AS THE
RECORD CLEARLY INDICATES THAT WHEN A SENIOR TECHNICIAN IS PERFORMING
COMPILATION REVIEW, HE DOES NOT EXERCISE ANY OF THE DUTIES ATTRIBUTED TO
A SUPERVISOR AS ENUMERATED IN SECTION 2(C) OF THE EXECUTIVE ORDER /3/
AND, IN FACT, HIS JOB AMOUNTS MERELY TO A TECHNICAL REVIEW UNDER THE
OVERALL SUPERVISION OF HIS SECTION CHIEF, I FIND THAT THE FACT THAT THE
PETITIONER ENGAGED IN COMPILATION REVIEW DURING THE PERIOD SEPTEMBER 1,
1973 TO OCTOBER 24, 1973, DID NOT MAKE HIM A SUPERVISOR WITHIN THE
MEANING OF THE ORDER AND DISQUALIFY HIM FROM FILING THE DECERTIFICATION
PETITION IN THIS MATTER. ACCORDINGLY, AS I HAVE FOUND THAT THE
DECERTIFICATION PETITION WAS TIMELY FILED AND THAT THE PETITIONER WAS
ELIGIBLE TO FILE SAID PETITION, I SHALL DIRECT THAT AN ELECTION BE
CONDUCTED IN THE FOLLOWING UNIT, DESCRIBED IN THE PETITION, WHICH I FIND
TO CONSTITUTE AN APPROPRIATE UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES, INCLUDING THOSE IN
PRINTING AND LITHOGRAPHIC POSITIONS, EMPLOYED BY THE U.S. GEOLOGICAL
SURVEY, DEPARTMENT OF THE INTERIOR, ROLLA, MISSOURI, EXCLUDING
PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
60 DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTION, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNIT WHO WERE EMPLOYED
DURING THE PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW,
INCLUDING EMPLOYEES WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY
WERE OUT ILL, OR ON VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE
MILITARY SERVICE WHO APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE
ARE EMPLOYEES WHO QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED
PAYROLL PERIOD, AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE
ELECTION DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY LOCAL 934,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
DATED, WASHINGTON, D.C.
NOVEMBER 27, 1974
/1/ A/SLMR NO. 413.
/2/ IN A/SLMR NO. 413, IT WAS FOUND THAT THE PETITIONER HAD TIMELY
FILED HIS PETITION DURING THE 60-90 DAY OPEN PERIOD OF THE NEGOTIATED
AGREEMENT BETWEEN THE INTERVENOR AND THE ACTIVITY AND, ACCORDINGLY, THAT
THE NEGOTIATED AGREEMENT DID NOT BAR AN ELECTION AMONG THE EMPLOYEES
COVERED BY THE INSTANT DECERTIFICATION PETITION. IT ALSO WAS FOUND THAT
THE HEARING OFFICER ERRED IN NOT PERMITTING THE INTRODUCTION OF EVIDENCE
PERTAINING TO THE ALLEGED SUPERVISORY STATUS OF THE PETITIONER AND THE
CASE WAS REMANDED TO SECURE EVIDENCE ON THIS ISSUE.
/3/ UNDER SECTION 2(C) OF THE ORDER, A SUPERVISOR IS DEFINED AS, "AN
EMPLOYEE HAVING AUTHORITY, IN THE INTEREST OF AN AGENCY, TO HIRE,
TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN, REWARD
OR DISCIPLINE OTHER EMPLOYEES, OR RESPONSIBLY TO DIRECT THEM, OR TO
EVALUATE THEIR PERFORMANCE, OR TO ADJUST THEIR GRIEVANCES, OR
EFFECTIVELY TO RECOMMEND SUCH ACTION, IF IN CONNECTION WITH THE
FOREGOING THE EXERCISE OF AUTHORITY IS NOT OF A MERELY ROUTINE OR
CLERICAL NATURE, BUT REQUIRES THE USE OF INDEPENDENT JUDGMENT."
4 A/SLMR 459; P. 813; CASE NO. 30-5475(RO); NOVEMBER 27, 1974.
FEDERAL DEPOSIT INSURANCE CORPORATION
A/SLMR NO. 459
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3488, AFL-CIO (AFGE),
SEEKING A UNIT OF ALL FULL-TIME, PERMANENT EMPLOYEES OF THE FEDERAL
DEPOSIT INSURANCE CORPORATION'S (FDIC) NEW YORK REGION. THE UNIT SOUGHT
WOULD CONSIST OF APPROXIMATELY 160 BANK EXAMINERS AND 20 CLERICAL
EMPLOYEES. THE ACTIVITY CONTENDED THAT BANK EXAMINERS, GS-11 AND ABOVE
(COMMISSIONED BANK EXAMINERS), ARE SUPERVISORS AND SHOULD BE EXCLUDED
FROM THE APPROPRIATE UNIT, THAT CLERICAL EMPLOYEES SHOULD BE "EXCLUDED"
FROM THE APPROPRIATE UNIT INASMUCH AS THEY DO NOT SHARE A COMMUNITY OF
INTEREST WITH BANK EXAMINERS AND THAT A UNIT CONSISTING OF BOTH BANK
EXAMINERS AND CLERICAL EMPLOYEES WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT BANK EXAMINERS AND CLERICAL
EMPLOYEES DO NOT SHARE A COMMUNITY OF INTEREST INASMUCH AS THE TWO
GROUPS HAVE DIFFERENT FIRST-LEVEL SUPERVISION, WORK LOCATIONS AND
DUTIES, HAVE LITTLE OR NO WORK CONTACT, DO NOT INTERCHANGE AND HAVE
SEPARATE AREAS OF CONSIDERATION IN PROMOTIONS AND REDUCTIONS-IN-FORCE.
HOWEVER, THE ASSISTANT SECRETARY FOUND TWO SEPARATE UNITS, ONE
CONSISTING OF BANK EXAMINERS AND THE OTHER CONSISTING OF CLERICAL
EMPLOYEES, TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
AND, ACCORDINGLY, HE DIRECTED ELECTIONS IN THESE UNITS.
THE ASSISTANT SECRETARY FOUND ALSO THAT BANK EXAMINERS, GS-11 AND
ABOVE, WHO ARE DESIGNATED AS "COMMISSIONED BANK EXAMINERS," WERE NOT
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND,
THEREFORE, SHOULD BE INCLUDED IN THE UNIT OF BANK EXAMINERS FOUND
APPROPRIATE. IN THIS CONNECTION, HE NOTED THAT THE COMMISSIONED BANK
EXAMINERS, WHEN PERFORMING AS EXAMINERS-IN-CHARGE OF BANK EXAMINATIONS
OR WHEN DIRECTING SUBORDINATE EXAMINERS IN EXAMINATION OF A BRANCH OR
DEPARTMENT OF A BANK, ACT WITHIN WELL ESTABLISHED GUIDELINES AND AGENCY
PROCEDURES AND DO NOT PERFORM SUPERVISORY FUNCTIONS. HE NOTED ALSO THAT
COMMISSIONED BANK EXAMINERS FULFILLED EXAMINER-IN-CHARGE FUNCTIONS ONLY
ON A IRREGULAR AND NON-CONTINUING BASIS. MOREOVER, THE ASSISTANT
SECRETARY FOUND THAT THE COMMISSIONED BANK EXAMINERS WERE NOT
SUPERVISORS WHEN THEY ACT AS TRAINING/EVALUATION TEAM LEADERS FOR BANK
EXAMINERS, GS-9 AND BELOW, AS THE DIRECTION PROVIDED BY THE COMMISSIONED
BANK EXAMINERS WHEN ACTING IN THIS CAPACITY IS IN THE NATURE OF A MORE
EXPERIENCED EMPLOYEE ASSISTING LESS EXPERIENCED EMPLOYEES AND THAT THE
EVIDENCE FAILED TO ESTABLISH THAT THE INPUT THEY PROVIDE CONCERNING THE
PERFORMANCE OF SUCH EMPLOYEES EFFECTIVELY LEADS TO PROMOTIONS OR IS
EFFECTIVE FOR ANY OTHER PURPOSE.
FEDERAL DEPOSIT INSURANCE CORPORATION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3488, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ADAM J. CONTI.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING BRIEFS FILED BY THE
PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3488, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL FULL-TIME PERMANENT EMPLOYEES OF THE FEDERAL DEPOSIT INSURANCE
CORPORATION'S (FDIC) NEW YORK REGION, EXCLUDING MANAGEMENT OFFICIALS,
SUPERVISORS, GUARDS, AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY. /1/ THE ACTIVITY CONTENDS THAT
THE PROPOSED UNIT IS INAPPROPRIATE. IN THIS REGARD, IT ASSERTS THAT
CLERICAL EMPLOYEES SHOULD BE "EXCLUDED" FROM THE BARGAINING UNIT
INASMUCH AS THEY DO NOT SHARE A COMMUNITY OF INTEREST WITH THE OTHER
CLAIMED EMPLOYEES AND THAT A UNIT CONSISTING OF BANK EXAMINERS AND
CLERICAL EMPLOYEES WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS. THE ACTIVITY FURTHER CONTENDS THAT BANK
EXAMINERS, GS-11 AND ABOVE, ARE SUPERVISORS WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER AND, THUS, SHOULD BE EXCLUDED FROM ANY UNIT
FOUND APPROPRIATE. ALSO, IT TAKES THE POSITION THAT BANK EXAMINERS
SHOULD BE FOUND TO BE PROFESSIONAL EMPLOYEES.
THE FDIC IS ENGAGED IN BANK EXAMINATION AND SUPERVISION ACTIVITIES.
THE NEW YORK REGION, WHICH ENCOMPASSES NEW YORK, NEW JERSEY, PUERTO RICO
AND THE VIRGIN ISLANDS, IS HEADQUARTERED IN NEW YORK CITY AND HAS FIELD
OFFICES IN ROCHESTER AND ALBANY, NEW YORK, AND IN PUERTO RICO. THE
REGION HAS APPROXIMATELY 180 NONSUPERVISORY EMPLOYEES, OF WHOM
APPROXIMATELY 160 ARE BANK EXAMINERS AND 20 ARE CLERICAL EMPLOYEES.
THE RECORD REVEALS THAT BANK EXAMINERS SPEND VIRTUALLY ALL OF THEIR
WORKING TIME IN BANKS, AWAY FROM THE REGIONAL AND FIELD OFFICES,
PERFORMING DUTIES SUCH AS COUNTING CASH, RECONCILING CORRESPONDENT BANK
ACCOUNTS, PREPARING SCHEDULES, AND EXAMINING LOAN AND INVESTMENT
PORTFOLIOS. BANK EXAMINERS GENERALLY ARE REQUIRED TO HAVE A COLLEGE
DEGREE AND PARTICIPATE IN SPECIALIZED ON-THE-JOB AND CLASSROOM TRAINING
DURING THEIR CAREERS. IN CONTRAST, CLERICAL EMPLOYEES SPEND ALL OF
THEIR WORKING TIME IN THE REGIONAL OFFICE, DO NOT PERFORM DUTIES SIMILAR
TO THOSE PERFORMED BY BANK EXAMINERS, HAVE LITTLE OR NO DAY-TO-DAY
CONTACT WITH BANK EXAMINERS, AND MOST HAVE AS THEIR FIRST LEVEL OF
SUPERVISION THE SUPERVISOR OF THE TYPING POOL.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE ACTIVITY'S BANK
EXAMINERS DO NOT SHARE A COMMUNITY OF INTEREST WITH ITS CLERICAL
EMPLOYEES, AND THAT, AS CONTENDED BY THE ACTIVITY, A UNIT CONSISTING OF
BOTH CLASSIFICATIONS WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS. THUS, THE TWO GROUPS HAVE DIFFERENT FIRST-LEVEL
SUPERVISION, WORK LOCATIONS AND DUTIES, HAVE LITTLE OR NO WORK CONTACT,
DO NOT INTERCHANGE AND HAVE SEPARATE AREAS OF CONSIDERATION IN
PROMOTIONS AND REDUCTIONS-IN-FORCE. I FIND, HOWEVER, THAT A SEPARATE
REGIONWIDE UNIT OF CLERICAL EMPLOYEES, AND A SEPARATE REGIONWIDE UNIT OF
BANK EXAMINERS, WOULD ENCOMPASS EMPLOYEES WHO SHARE A COMMUNITY OF
INTEREST AND THAT SUCH UNITS WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I FIND THAT SUCH UNITS
ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION AND I SHALL
DIRECT A SEPARATE ELECTION IN EACH UNDER THE CIRCUMSTANCES SET FORTH
BELOW. /2/
AS NOTED ABOVE, THE ACTIVITY ASSERTS THAT ALL BANK EXAMINERS, GS-11
AND ABOVE, ARE SUPERVISORS AND SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE. IN THIS REGARD, THE RECORD REVEALS THAT BANK EXAMINERS
GENERALLY ARE HIRED AT THE GS-5 LEVEL AND, AFTER BEING EMPLOYED A
CERTAIN LENGTH OF TIME, ARE PROMOTED TO THE GS-7 AND 9 LEVELS. AFTER
HAVING BEEN EMPLOYED AN ADDITIONAL LENGTH OF TIME AND PASSING A
PROMOTIONAL EVALUATION EXAMINATION, THEY ARE PROMOTED TO THE GS-11
LEVEL, AT WHICH POINT THEY ARE DESIGNATED AS "COMMISSIONED BANK
EXAMINERS." /3/ THE ACTIVITY MAINTAINS THAT COMMISSIONED BANK EXAMINERS
ARE SUPERVISORS INASMUCH AS, ON OCCASION, THEY MAY BE DESIGNATED TO ACT
AS THE EXAMINERS-IN-CHARGE OF BANK EXAMINATIONS, THEY DIRECT THE DUTIES
OF SUBORDINATE EXAMINERS WHEN PLACED IN CHARGE OF THE EXAMINATION OF A
BRANCH OR DEPARTMENT OF A BANK, AND THEY MAY ACT AS LEADERS OF
TRAINING/EVALUATION TEAMS.
THE EVIDENCE ESTABLISHES THAT THE DUTIES PERFORMED BY A COMMISSIONED
BANK EXAMINER, WHEN ACTING AS THE EXAMINER-IN-CHARGE OF A BANK
EXAMINATION OR WHEN PLACED IN CHARGE OF THE EXAMINATION OF A BANK BRANCH
OR DEPARTMENT, ARE WITHIN WELL ESTABLISHED GUIDELINES. THUS, THE AREAS
TO BE EXAMINED DURING A BANK EXAMINATION ARE SET FORTH IN A REPORT OF
INVESTIGATION, AND THE PROCEDURES TO BE UTILIZED IN CONDUCTING THE
EXAMINATION ARE ESTABLISHED BY THE FDIC MANUAL. THE EVIDENCE FURTHER
ESTABLISHES THAT COMMISSIONED BANK EXAMINERS, WHEN ACTING AS
EXAMINERS-IN-CHARGE, DO NOT, EXCEPT IN ISOLATED INSTANCES, APPROVE
LEAVE, DO NOT SIGN TIME AND ATTENDANCE CARDS, DO NOT APPROVE OVERTIME,
HAVE NO AUTHORITY TO HIRE, TRANSFER, REASSIGN OR DISCHARGE, AND DO NOT
INITIATE OR APPROVE PROMOTIONS. MOREOVER, THE RECORD REVEALS THAT THE
COMMISSIONED BANK EXAMINERS FULFILL SUCH EXAMINER-IN-CHARGE DUTIES ON AN
IRREGULAR AND NON-CONTINUING BASIS. THUS, A COMMISSIONED BANK EXAMINER
MAY ACT AS AN EXAMINER-IN-CHARGE IN ONE BANK EXAMINATION, HAVING IN HIS
GROUP OTHER BANK EXAMINERS IN HIGHER OR LOWER GRADES, BUT ON THE NEXT
EXAMINATION HE MAY SERVE IN A GROUP UNDER ANOTHER COMMISSIONED BANK
EXAMINER OF A HIGHER OR LOWER GRADE. ACCORDINGLY, THE RECORD REFLECTS
COMMISSIONED BANK EXAMINERS, AS A GROUP, DO NOT SERVE AS
EXAMINERS-IN-CHARGE ON A REGULAR, CONTINUING BASIS.
WITH RESPECT TO THE ACTIVITY'S CONTENTION THAT COMMISSIONED BANK
EXAMINERS ARE SUPERVISORS INASMUCH AS THEY MAY ACT AS
TRAINING/EVALUATION TEAM LEADERS, THE RECORD DISCLOSES THAT, IN ADDITION
TO THEIR OTHER DUTIES, APPROXIMATELY ONE-THIRD OF THE COMMISSIONED BANK
EXAMINERS, FOR VARYING PERIODS OF TIME, LEAD TRAINING/EVALUATION TEAMS
CONSISTING OF THREE TO FIVE BANK EXAMINERS, GS-9 AND BELOW, COORDINATING
ON-THE-JOB TRAINING AND PROVIDING PERIODIC INPUT FOR PERFORMANCE
EVALUATIONS. /4/ THE RECORD REVEALS, HOWEVER, THAT THE DIRECTION GIVEN
BY THE COMMISSIONED BANK EXAMINER TO THE MEMBERS OF A PARTICULAR
TRAINING/EVALUATION TEAM IS IN THE NATURE OF A MORE EXPERIENCED EMPLOYEE
ASSISTING A LESS EXPERIENCED EMPLOYEE AS DISTINGUISHED FROM SUPERVISION.
/5/ WHILE THE COMMISSIONED BANK EXAMINERS, IN MANY INSTANCES, PROVIDE
INPUT CONCERNING THE PERFORMANCE OF MEMBERS OF THE TRAINING/EVALUATION
TEAMS TO THE REGIONAL DIRECTOR IN THE FORM OF QUARTERLY LETTERS AND
SEMI-ANNUAL FORMS, THE EVIDENCE FAILS TO ESTABLISH THAT SUCH INPUT
EFFECTIVELY LEADS TO PROMOTIONS OR IS EFFECTIVE FOR ANY OTHER PURPOSE.
/6/
BASED ON THE FOREGOING, I FIND THAT THE EVIDENCE IS INSUFFICIENT TO
ESTABLISH THAT SUPERVISORY AUTHORITY HAS BEEN VESTED IN THE ACTIVITY'S
COMMISSIONED BANK EXAMINERS, INASMUCH AS THEY DO NOT HIRE, DISCHARGE, OR
REASSIGN EMPLOYEES AND WHEN THEY ACT AS EXAMINERS-IN-CHARGE, WHICH IS
NOT REQUIRED ON A REGULAR AND CONTINUING BASIS, SUCH DIRECTION AS THEY
GIVE TO OTHER EMPLOYEES IS ROUTINE IN NATURE, IS WITHIN ESTABLISHED
GUIDELINES AND IS DICTATED BY ESTABLISHED PROCEDURES. NOR DOES THE
EVIDENCE ESTABLISH THAT THEY PROMOTE OR EFFECTIVELY EVALUATE OTHER
EMPLOYEES. IN THESE CIRCUMSTANCES, I FIND THAT COMMISSIONED BANK
EXAMINERS, GS-11 AND ABOVE, ARE NOT SUPERVISORS WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER, AND THAT THEY SHOULD BE INCLUDED IN THE UNIT
OF BANK EXAMINERS FOUND APPROPRIATE.
ACCORDINGLY, I FIND THAT THE FOLLOWING EMPLOYEES CONSTITUTE SEPARATE
APPROPRIATE UNITS FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491, AS AMENDED:
ALL BANK EXAMINERS EMPLOYED BY THE NEW YORK REGION OF THE FEDERAL
DEPOSIT INSURANCE CORPORATION, EXCLUDING CLERICAL EMPLOYEES, THE
REGIONAL DIRECTOR, ASSISTANT REGIONAL DIRECTORS, THE EXAMINERS-IN-CHARGE
OF THE ROCHESTER, ALBANY AND PUERTO RICO FIELD OFFICES, THE SUPERVISOR
OF THE TYPING POOL IN THE REGIONAL OFFICE, THE SECRETARY TO THE REGIONAL
DIRECTOR, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
ALL CLERICAL EMPLOYEES EMPLOYED BY THE NEW YORK REGION OF THE FEDERAL
DEPOSIT INSURANCE CORPORATION, EXCLUDING BANK EXAMINERS, THE REGIONAL
DIRECTOR, THE ASSISTANT REGIONAL DIRECTORS, THE EXAMINERS-IN-CHARGE OF
THE ROCHESTER, ALBANY AND PUERTO RICO FIELD OFFICES, THE SUPERVISOR OF
THE TYPING POOL IN THE REGIONAL OFFICE, THE SECRETARY TO THE REGIONAL
DIRECTOR, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND
GUARDS AS DEFINED IN THE ORDER.
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER
THAN 60 DAYS FROM THE DATE UPON WHICH THE APPROPRIATE AREA ADMINISTRATOR
ISSUES HIS DETERMINATION WITH RESPECT TO ANY INTERVENTION IN THIS
MATTER. THE APPROPRIATE AREA ADMINISTRATOR SHALL SUPERVISE THE
ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S REGULATIONS. ELIGIBLE
TO VOTE ARE THOSE IN THE VOTING GROUPS WHO WERE EMPLOYED DURING THE
PAYROLL PERIOD IMMEDIATELY PRECEDING THE DATE BELOW, INCLUDING EMPLOYEES
WHO DID NOT WORK DURING THAT PERIOD BECAUSE THEY WERE OUT ILL, OR ON
VACATION OR ON FURLOUGH, INCLUDING THOSE IN THE MILITARY SERVICE WHO
APPEAR IN PERSON AT THE POLLS. INELIGIBLE TO VOTE ARE EMPLOYEES WHO
QUIT OR WERE DISCHARGED FOR CAUSE SINCE THE DESIGNATED PAYROLL PERIOD,
AND WHO HAVE NOT BEEN REHIRED OR REINSTATED BEFORE THE ELECTION DATE.
THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO BE REPRESENTED
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 3488, AFL-CIO, OR BY ANY OTHER LABOR
ORGANIZATION WHICH, AS DISCUSSED BELOW, INTERVENES IN THIS PROCEEDING ON
A TIMELY BASIS.
BECAUSE THE ABOVE DIRECTION OF ELECTIONS IS IN TWO UNITS
SUBSTANTIALLY DIFFERENT FROM THE ONE SOUGHT BY THE AFGE, I SHALL PERMIT
IT TO WITHDRAW ITS PETITION IF IT DOES NOT DESIRE TO PROCEED TO
ELECTIONS IN THE UNITS FOUND APPROPRIATE IN THE SUBJECT CASE UPON NOTICE
TO THE APPROPRIATE AREA ADMINISTRATOR WITHIN 10 DAYS OF THE ISSUANCE OF
THIS DECISION. IF THE AFGE DESIRES TO PROCEED TO ELECTION (AND IF ITS
SHOWING OF INTEREST IS ADEQUATE), BECAUSE THE UNITS FOUND APPROPRIATE
DIFFER SUBSTANTIALLY FROM THAT IT ORIGINALLY PETITIONED FOR, I DIRECT
THAT THE ACTIVITY, AS SOON AS POSSIBLE, SHALL POST COPIES OF A NOTICE OF
UNIT DETERMINATION, WHICH SHALL BE FURNISHED BY THE APPROPRIATE AREA
ADMINISTRATOR, IN PLACES WHERE NOTICES NORMALLY ARE POSTED AFFECTING THE
EMPLOYEES IN THE UNITS I HAVE HEREIN FOUND APPROPRIATE. SUCH NOTICES
SHALL CONFORM IN ALL RESPECTS TO THE REQUIREMENTS OF 202.4(B) AND (C) OF
THE ASSISTANT SECRETARY'S REGULATIONS. FURTHER, ANY LABOR ORGANIZATION
WHICH SEEKS TO INTERVENE IN THIS MATTER MUST DO SO IN ACCORDANCE WITH
THE REQUIREMENTS OF SECTION 202.5 OF THE ASSISTANT SECRETARY'S
REGULATIONS. ANY TIMELY INTERVENTION WILL BE GRANTED SOLELY FOR THE
PURPOSE OF APPEARING ON THE BALLOT IN THE ELECTION AMONG THE EMPLOYEES
IN THE UNITS FOUND APPROPRIATE.
DATED, WASHINGTON, D.C.
NOVEMBER 27, 1974
/1/ DURING THE HEARING, THE PARTIES STIPULATED THAT THE ACTIVITY'S
REGIONAL DIRECTOR, TWO ASSISTANT REGIONAL DIRECTORS, THREE
EXAMINERS-IN-CHARGE OF THE ROCHESTER, ALBANY AND PUERTO RICO FIELD
OFFICES, AND THE SUPERVISOR OF THE TYPING POOL IN THE REGIONAL OFFICE
WERE SUPERVISORS, AND THAT THE REGIONAL DIRECTOR'S SECRETARY WAS A
CONFIDENTIAL EMPLOYEE. ACCORDINGLY, IT WAS CONTENDED THAT THESE
EMPLOYEES SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE. AS THERE
IS NO EVIDENCE IN THE RECORD TO THE CONTRARY, I SHALL EXCLUDE THESE
EMPLOYEES FROM THE UNITS FOUND APPROPRIATE HEREIN.
/2/ IN VIEW OF THIS DISPOSITION, I FIND IT UNNECESSARY TO DETERMINE
WHETHER OR NOT BANK EXAMINERS ARE PROFESSIONAL EMPLOYEES WITHIN THE
MEANING OF THE ORDER.
/3/ THE ACTIVITY EMPLOYS APPROXIMATELY 70-75 COMMISSIONED BANK
EXAMINERS, RANGING IN GRADE FROM GS-11 THROUGH GS-14.
/4/ WRITTEN PERFORMANCE APPRAISALS ARE SIGNED BY THE REGIONAL
DIRECTOR, RATHER THAN BY COMMISSIONED BANK EXAMINERS.
/5/ CF. DEPARTMENT OF THE NAVY, UNITED STATES NAVAL STATION, ADAK,
ALASKA, A/SLMR NO. 321 AND ARIZONA NATIONAL GUARD, AIR NATIONAL GUARD,
SKY HARBOR AIRPORT, A/SLMR NO. 436.
/6/ CF. FEDERAL AVIATION ADMINISTRATION, NATIONAL CAPITAL AIRPORTS,
A/SLMR NO. 405.
/7/ THE RECORD IN THE SUBJECT CASE IN UNCLEAR AS TO WHETHER THE
FINDING, THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT CONSTITUTE TWO
SEPARATE, APPROPRIATE UNITS WOULD RENDER INADEQUATE THE SHOWING OF
INTEREST IN EITHER OF THE UNITS FOUND APPROPRIATE. ACCORDINGLY, BEFORE
PROCEEDING TO ELECTION IN THE SUBJECT CASE, THE APPROPRIATE AREA
ADMINISTRATOR IS DIRECTED TO REEVALUATE THE SHOWING OF INTEREST. IF HE
DETERMINES THAT THE SHOWING OF INTEREST IS INADEQUATE IN EITHER UNIT, AN
ELECTION SHOULD NOT BE CONDUCTED IN THAT UNIT.
4 A/SLMR 458; P. 811; CASE NOS. 60-3536(RO), 62-3935(RO); NOVEMBER
27, 1974.
DEPARTMENT OF AGRICULTURE, OFFICE OF
AUTOMATED DATA SYSTEMS, ST. LOUIS,
MISSOURI AND KANSAS CITY, MISSOURI
A/SLMR NO. 458
PURSUANT TO THE DECISION AND REMAND OF THE ASSISTANT SECRETARY IN
A/SLMR NO. 387 AND AN ORDER BY THE ASSISTANT REGIONAL DIRECTOR
CONSOLIDATING CASE NO. 62-3935(RO) WITH CASE NO. 3536(RO), A SUBSEQUENT
CONSOLIDATED HEARING WAS HELD FOR THE PURPOSE OF OBTAINING EVIDENCE
PERTAINING TO THE APPROPRIATENESS OF THE UNITS SOUGHT BY NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1633 (NFFE) AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354 (AFGE). THE
NFFE SOUGHT A UNIT OF ALL EMPLOYEES EMPLOYED AT THE DEPARTMENT OF
AGRICULTURE, OFFICE OF AUTOMATED DATA SYSTEMS IN KANSAS CITY, MISSOURI,
AND THE AFGE SOUGHT A UNIT OF ALL EMPLOYEES EMPLOYED AT THE ST. LOUIS
COMPUTER CENTER, OFFICE OF AUTOMATED DATA SYSTEMS. THE ACTIVITIES
CONTENDED THAT THE PETITIONED FOR UNITS WERE INAPPROPRIATE AND THAT THE
ONLY APPROPRIATE UNIT WOULD BE ONE WHICH INCLUDED ALL ELIGIBLE EMPLOYEES
OF ALL OF THE AUTOMATED DATA SYSTEMS' (ADS) COMPUTER CENTERS.
THE ASSISTANT SECRETARY FOUND THAT NEITHER OF THE UNITS SOUGHT WAS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BECAUSE, IN EACH
INSTANCE, THE CLAIMED EMPLOYEES DO NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND APART FROM THE OTHER EMPLOYEES OF THE
ADS COMPUTER CENTERS. IN THIS CONNECTION, HE NOTED THAT THE COMPUTER
CENTERS OPERATE UNDER THE CENTRALIZED CONTROL OF THE ADS DIRECTOR AND
ASSISTANT DIRECTOR; THE OPERATIONS OF THE COMPUTER CENTERS ARE HIGHLY
INTEGRATED; AND THERE IS SUBSTANTIAL INTERCHANGE AND CONTACT BETWEEN
THE EMPLOYEES OF THE COMPUTER CENTERS. FURTHER, HE FOUND THAT THE WORK,
SKILLS, TRAINING, AND EDUCATION OF THE ADS EMPLOYEES IN ALL OF THE
COMPUTER CENTERS ARE SIMILAR, AND ALL EMPLOYEES OF THE COMPUTER CENTERS
OPERATE UNDER THE SAME UNIFORM PERSONNEL PROCEDURES.
BASED ON THESE CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE
SEPARATE UNITS PROPOSED BY THE NFFE AND THE AFGE DO NOT CONTAIN
EMPLOYEES WHO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
DIFFERENT FROM OTHER EMPLOYEES OF THE ADS. MOREOVER, HE FOUND THAT IF
SUCH UNITS WERE ESTABLISHED, THEY WOULD ARTIFICIALLY FRAGMENT THE ADS
AND COULD NOT REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE ORDERED THAT BOTH
PETITIONS BE DISMISSED.
DEPARTMENT OF AGRICULTURE,
OFFICE OF AUTOMATED DATA SYSTEMS,
KANSAS CITY, MISSOURI /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1633, KANSAS CITY
DEPARTMENT OF AGRICULTURE,
OFFICE OF AUTOMATED DATA SYSTEMS,
ST. LOUIS, MISSOURI /2/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3354, ST. LOUIS
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD IN CASE NO. 60-3536(RO). THEREAFTER, ON
MAY 10, 1974, I ISSUED A DECISION AND REMAND, /3/ IN WHICH, AMONG OTHER
THINGS, I ORDERED THAT THE CASE BE REMANDED TO THE APPROPRIATE ASSISTANT
REGIONAL DIRECTOR FOR THE PURPOSE OF REOPENING THE RECORD TO SECURE
ADDITIONAL EVIDENCE CONCERNING THE APPROPRIATENESS OF THE UNIT SOUGHT.
ON MAY 31, 1974, CASE NO. 60-3536(RO) AND A RELATED PETITION IN CASE
NO. 62-3935(RO) WERE ORDERED CONSOLIDATED FOR HEARING BY THE ASSISTANT
REGIONAL DIRECTOR AND, ON JULY 10 AND 11, 1974, A CONSOLIDATED HEARING
WAS HELD BEFORE HEARING OFFICER ROBERT E. LACKLAND. THE HEARING
OFFICER'S RULINGS MADE AT THE CONSOLIDATED HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED. /4/
UPON THE ENTIRE RECORD IN THESE CASES, INCLUDING THE BRIEFS FILED BY
THE PARTIES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 60-3536(RO), THE NFFE SEEKS AN ELECTION IN A UNIT OF
ALL EMPLOYEES EMPLOYED AT THE DEPARTMENT OF AGRICULTURE, OFFICE OF
AUTOMATED DATA SYSTEMS (ADS) IN KANSAS CITY, MISSOURI. IN CASE NO.
62-3935(RO), THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 3354, ST. LOUIS, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT
OF ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES EMPLOYED AT THE ST.
LOUIS ADS COMPUTER CENTER. /5/ THE ACTIVITIES CONTEND THAT THE
PETITIONED FOR UNITS ARE INAPPROPRIATE AND THAT THE ONLY APPROPRIATE
UNIT WOULD BE ONE WHICH INCLUDES ALL ELIGIBLE EMPLOYEES OF ALL OF THE
ADS COMPUTER CENTERS.
THE ADS WAS ESTABLISHED ON MARCH 30, 1972, FOR THE PURPOSE OF
PROVIDING A MORE EFFICIENT AUTOMATED DATA PROCESSING SYSTEM WITHIN THE
DEPARTMENT OF AGRICULTURE TO MEET MANAGEMENT'S INFORMATION NEEDS.
TOWARD THIS END, THE DATA PROCESSING FACILITIES AT VARIOUS DEPARTMENT OF
AGRICULTURE OFFICES THROUGHOUT THE COUNTRY WERE CONSOLIDATED INTO AN
INTEGRATED COMPUTER NETWORK COMPRISED OF COMPUTER CENTERS UNDER THE
DIRECTION OF THE NEWLY CREATED ADS. THIS CONSOLIDATION INVOLVED THE
COMPUTER CENTERS LOCATED AT WASHINGTON, D.C.; NEW ORLEANS, LOUISIANA;
FORT COLLINS, COLORADO; KANSAS CITY, MISSOURI; MINNEAPOLIS, MINNESOTA;
AND ST. LOUIS, MISSOURI. /6/ ALL OF THE COMPUTER CENTERS ARE TIED
INTO AN INTEGRATED COMPUTER NETWORK WHICH ALLOWS FOR AN EVEN
DISTRIBUTION OF WORK AMONG THE CENTERS AND ASSURES SUFFICIENT BACKUP
SUPPORT IN CASES WHERE, BECAUSE OF A LARGE PROJECT, ONE OR TWO CENTERS
MAY NOT BE ABLE TO HANDLE THE MATTER, OR IN THE EVENT OF AN EQUIPMENT
FAILURE AT ANY ONE OF THE CENTERS.
THE CENTRAL OFFICE OF THE ADS IS IN WASHINGTON, D.C., AND INCLUDES
THE OFFICE OF THE DIRECTOR AND THE VARIOUS BRANCHES WHICH ASSIST HIM IN
THE OPERATION OF THE ADS COMPUTER NETWORK. THE DIRECTOR, WHO IS THE
CHIEF EXECUTIVE OFFICER OF THE ADS, EXERCISES CLOSE CONTROL AND HAS THE
FINAL AUTHORITY OVER ALL ASPECTS OF THE ADS OPERATION, INCLUDING ALL
PROCUREMENTS AND FORMAL GRIEVANCES. THE ASSISTANT DIRECTOR OF THE ADS
ASSISTS THE DIRECTOR AND IS RESPONSIBLE DIRECTLY FOR THE COORDINATION OF
OPERATIONAL POLICY AND PROCEDURES AMONG THE COMPUTER CENTERS AND BETWEEN
THE CENTERS AND OTHER ORGANIZATIONAL ELEMENTS OF THE ADS. IN THIS
CONNECTION, THE ASSISTANT DIRECTOR IS IN CONSTANT CONTACT WITH THE
COMPUTER CENTERS AND HE MEETS MONTHLY WITH THE COMPUTER CENTER
DIRECTORS.
EACH OF THE COMPUTER CENTERS IS HEADED BY A COMPUTER CENTER DIRECTOR
WHO IS RESPONSIBLE FOR THE DAY-TO-DAY OPERATION OF THE CENTER. THE
CENTER DIRECTOR HAS THE AUTHORITY TO INITIATE ALL PERSONNEL ACTIONS AND
HAS THE FINAL AUTHORITY OVER PROMOTIONS AND HIRING, GS-11 AND BELOW.
FURTHER, THE CENTER DIRECTOR HANDLES GRIEVANCES AT THE INFORMAL STAGES,
APPROVES TRAVEL, AND REVIEWS INDIVIDUAL EMPLOYEE PERFORMANCE
EVALUATIONS. THE COMPUTER CENTERS ARE DIVIDED INTO THREE BRANCHES: AN
AGENCY LIAISON BRANCH; COMPUTER RESOURCES; AND A SYSTEM ENGINEERING
BRANCH. THE WORK, SKILLS, TRAINING AND EDUCATION OF THE ADS EMPLOYEES
IN ALL OF THE COMPUTER CENTERS ARE SIMILAR AND, EXCEPT FOR MINIMAL
TRAINING IN CERTAIN JOB CATEGORIES RESULTING FROM SLIGHTLY DIFFERENT OR
NEWER EQUIPMENT, THE RECORD REVEALS THAT EMPLOYEES OF ANY ONE UNIT COULD
STEP IN AND PERFORM SIMILAR WORK WITHIN ANY OTHER ADS CENTER.
BECAUSE OF THE HIGHLY INTEGRATED NATURE OF THE ADS, THERE IS
SUBSTANTIAL INTERCHANGE BETWEEN THE EMPLOYEES OF THE VARIOUS COMPUTER
CENTERS. IN THIS REGARD, THE EVIDENCE ESTABLISHES THAT THE ADS
MAINTAINS AN EXTENSIVE CROSS-TRAINING PROGRAM WHERE EMPLOYEES FROM ONE
CENTER WILL GO TO ANOTHER FOR THE PURPOSE OF SPECIALIZED TRAINING IN
EITHER NEW EQUIPMENT AND METHODS, OR IN AN ATTEMPT TO CORRECT A
DEFICIENCY AT THE CENTER INVOLVED. FURTHER, THE ADS UTILIZES A "SPECIAL
TEAMS CONCEPT" AND JOINT PROJECTS WHICH LAST FROM ONE WEEK TO SEVERAL
MONTHS AND WHICH INVOLVE CERTAIN EMPLOYEES FROM DIFFERENT CENTERS BEING
BROUGHT TOGETHER TO SOLVE A PARTICULAR PROBLEM. ALSO, BECAUSE OF THE
NATURE OF THE WORK AND THE COMMON PROBLEMS EXPERIENCED BY THE CENTERS,
THERE IS FREQUENT CONTACT BETWEEN THE EMPLOYEES OF THE VARIOUS CENTERS
IN ORDER TO RESOLVE MUTUAL PROBLEMS. IN THE PAST YEAR, THERE HAVE BEEN
APPROXIMATELY 50 TRANSFERS INVOLVING CENTER EMPLOYEES, WHICH TRANSFERS
HAVE BEEN FACILITATED BY THE SIMILARITY OF THE JOBS AT EACH CENTER.
THE ADS HAS ITS OWN OFFICE OF PERSONNEL WHICH PROVIDES ALL PERSONNEL
SERVICES FOR THE COMPUTER CENTERS IN WASHINGTON, D.C., FORT COLLINS, AND
MINNEAPOLIS. THE PERSONNEL SERVICES FOR THE KANSAS CITY, NEW ORLEANS,
AND ST. LOUIS COMPUTER CENTERS HAVE BEEN CONTRACTED OUT TO OTHER
DEPARTMENT OF AGRICULTURE AGENCIES UNDER A SPECIAL DELEGATION. ALTHOUGH
THESE OTHER AGENCIES PERFORM THE DAY-TO-DAY PERSONNEL SERVICES FOR THE
ABOVE-NAMED CENTERS, THE RECORD REVEALS THAT THEY DO SO UNDER GUIDELINES
ESTABLISHED BY THE ADS PERSONNEL OFFICE AND THAT THE ADS PERSONNEL
OFFICE, UNDER THE ADS DIRECTOR, HAS THE FINAL AUTHORITY IN THE AREA OF
LABOR RELATIONS, FORMAL GRIEVANCES AND PROMOTIONS OR HIRINGS ABOVE
GS-11. THE ADS HAS ACTIVITY-WIDE MERIT PROMOTION, REDUCTION-IN-FORCE
AND EQUAL EMPLOYMENT OPPORTUNITY PLANS AND ALL CENTER EMPLOYEES HAVE THE
SAME FRINGE BENEFITS AND GRIEVANCE PROCEDURES. ALL JOB VACANCIES ARE
ANNOUNCED THROUGH THE ADS PERSONNEL OFFICE AND ALL VACANCIES ABOVE GS-11
MUST BE APPROVED THERE. FURTHER, ALL JOB VACANCIES GS-7 AND ABOVE,
WHICH INCLUDE THE MAJORITY OF THE JOBS FOUND IN THE COMPUTER CENTERS,
ARE POSTED ON AN ACTIVITY-WIDE BASIS.
UNDER ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT NEITHER OF THE
UNITS SOUGHT IN THE SUBJECT CASES IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BECAUSE IN EACH CENTER THE CLAIMED EMPLOYEES DO
NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
APART FROM THE OTHER EMPLOYEES OF THE ADS COMPUTER CENTERS. THUS, THE
RECORD REVEALS, AMONG OTHER THINGS, THAT ALL OF THE COMPUTER CENTERS
OPERATE UNDER THE CENTRALIZED CONTROL OF THE ADS DIRECTOR AND ASSISTANT
DIRECTOR; THE OPERATIONS OF THE COMPUTER CENTERS ARE HIGHLY INTEGRATED;
AND THERE IS SUBSTANTIAL INTERCHANGE AND CONTACT BETWEEN THE EMPLOYEES
OF THE COMPUTER CENTERS. FURTHER, THE EVIDENCE ESTABLISHES THAT THE
WORK, SKILLS, TRAINING, AND EDUCATION OF THE ADS EMPLOYEES IN ALL OF THE
COMPUTER CENTERS ARE SIMILAR, AND ALL CENTER EMPLOYEES OPERATE UNDER THE
SAME UNIFORM PERSONNEL PROCEDURES SET UP BY THE ADS PERSONNEL OFFICE
WHICH HAS THE FINAL AUTHORITY IN ALL PERSONNEL MATTERS.
BASED ON THESE CONSIDERATIONS, I FIND THAT THE SEPARATE UNITS
PROPOSED HEREIN BY THE NFFE AND THE AFGE DO NOT CONTAIN EMPLOYEES WHO
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST DIFFERENT FROM
OTHER EMPLOYEES OF THE ADS. MOREOVER, IN MY VIEW, SUCH UNITS, IF
ESTABLISHED, WOULD ARTIFICIALLY FRAGMENT THE ADS AND COULD NOT
REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. ACCORDINGLY, AS THE UNITS SOUGHT ARE INAPPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, I SHALL ORDER THE PETITIONS
HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASE NO. 60-3536(RO) AND
CASE NO. 62-3935(RO) BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 27, 1974
/1/ THE NAME OF THIS ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THIS ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/3/ A/SLMR NO. 387.
/4/ PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1633,
HEREIN CALLED NFFE, FILED A MOTION TO DISMISS THE ACTIVITY'S OBJECTION
TO THE APPROPRIATENESS OF THE UNIT SOUGHT IN CASE NO. 60-3536(RO).
NOTING THE DISPOSITION HEREIN, THE NFFE'S MOTION IS HEREBY DENIED.
/5/ BOTH OF THE CLAIMED UNITS APPEAR AS AMENDED AT THE HEARING.
/6/ FOLLOWING THE INITIAL HEARING IN THIS MATTER, THE ADS OFFICIALLY
OPENED AND MADE OPERATIONAL THE FORT COLLINS, COLORADO, COMPUTER CENTER.
THE MINNEAPOLIS COMPUTER CENTER, WHICH PREVIOUSLY WAS A BRANCH OF THE
KANSAS CITY COMPUTER CENTER, WAS TRANSFERRED TO THE FORT COLLINS
COMPUTER CENTER AND NOW IS A BRANCH OF THAT CENTER. THE RECORD REVEALS
THAT THE ADS HAS NEARLY COMPLETED THE PHASING OUT OF THE MINNEAPOLIS
COMPUTER CENTER, WITH ITS WORKLOAD BEING TRANSFERRED TO FORT COLLINS AND
ITS NONESSENTIAL EMPLOYEES BEING TRANSFERRED TO KANSAS CITY AND FORT
COLLINS. THE ADS ALSO IS IN THE PROCESS OF PHASING OUT THE OPERATION IN
ST. LOUIS.
4 A/SLMR 457; P. 806; CASE NO. 63-4826(CA); NOVEMBER 26, 1974.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA),
WASHINGTON, D.C.
AND
LYNDON B. JOHNSON SPACE CENTER (NASA),
HOUSTON, TEXAS
A/SLMR NO. 457
THIS CASE INVOLVED A COMPLAINT FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL UNION 2284, AFL-CIO (COMPLAINANT) AGAINST
THE RESPONDENTS, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA),
WASHINGTON, D.C. (AGENCY) AND LYNDON B. JOHNSON SPACE CENTER (NASA),
HOUSTON, TEXAS (ACTIVITY) ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND
(6) OF THE ORDER. THE CASE WAS TRANSFERRED TO THE ASSISTANT SECRETARY
PURSUANT TO SECTION 206.5(A) OF THE ASSISTANT ASECRETARY'S REGULATIONS
AFTER THE PARTIES SUBMITTED A STIPULATION OF FACTS AND EXHIBITS TO THE
ASSISTANT REGIONAL DIRECTOR. SPECIFICALLY, THE COMPLAINT ALLEGED THAT
THE RESPONDENTS VIOLATED SECTION 19(A)(1) AND (6) BY THE AGENCY'S
ASSISTANT ADMINISTRATOR FOR EQUAL OPPORTUNITY PROGRAMS HOLDING OFFICIAL
MEETINGS WITH SEVERAL GROUPS OF EMPLOYEES IN BARGAINING UNITS
REPRESENTED BY THE COMPLAINANT WITHOUT GIVING NOTIFICATION TO THE
EXCLUSIVE REPRESENTATIVE, AND BY DENYING THE COMPLAINANT THE RIGHT TO
HAVE OBSERVERS PRESENT AT THESE MEETINGS.
THE ASSISTANT SECRETARY FOUND THAT THE COMPLAINANT'S RIGHTS AS
EXCLUSIVE REPRESENTATIVE ARE BASED ON THE EXCLUSIVE RECOGNITION ACCORDED
IT BY THE ACTIVITY, AND THAT UNDER THESE CIRCUMSTANCES, THE RESPONDENT
AGENCY WAS NOT OBLIGATED TO MEET AND CONFER WITH THE COMPLAINANT
PURSUANT TO SECTION 11(A) OF THE ORDER. FURTHER, HE CONCLUDED THAT THE
RESPONDENT ACTIVITY DID NOT ACT IN DEROGATION OF ITS BARGAINING
OBLIGATIONS UNDER THE ORDER. IN THIS REGARD, HE NOTED THAT THE EVIDENCE
ESTABLISHED THAT NO MANAGEMENT OFFICIAL OF THE RESPONDENT ACTIVITY
EXERCISED ANY SUPERVISION OR CONTROL OVER THE RESPONDENT AGENCY'S
REPRESENTATIVE WHO CONDUCTED THE MEETINGS IN QUESTION. FURTHER, THERE
WAS NO EVIDENCE THAT THE RESPONDENT ACTIVITY REFUSED TO MEET AND CONFER
WITH THE COMPLAINANT CONCERNING ANY MATTERS INVOLVING PERSONNEL POLICIES
OR PRACTICES UNDER ITS CONTROL OR DIRECTION. BASED ON THESE
CONSIDERATIONS, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT
ACTIVITY DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE ORDER.
MOREOVER, HE FOUND THAT BECAUSE THE RESPONDENT AGENCY WAS NOT A PARTY TO
A BARGAINING RELATIONSHIP WITH THE COMPLAINANT, IT WAS NOT IN VIOLATION
OF 19(A)(6) OF THE ORDER.
WHILE THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT AGENCY DID
NOT VIOLATE SECTION 19(A)(6) OF THE ORDER, HE FOUND THAT SUCH A FINDING
DOES NOT PRECLUDE HIS FINDING AN INDEPENDENT 19(A)(1) VIOLATION WHICH
WAS NOT PREMISED ON THE EXISTENCE OF A BARGAINING RELATIONSHIP BETWEEN
THE RESPONDENT AGENCY AND THE COMPLAINANT. THE ASSISTANT SECRETARY
FOUND THAT THE RESPONDENT AGENCY'S CONDUCTING OF MEETINGS OR INTERVIEWS
WITH UNIT EMPLOYEES IN WHICH THEIR TERMS AND CONDITIONS OF EMPLOYMENT
WERE DISCUSSED, WHILE REFUSING THE REQUEST OF THE EXCLUSIVE
REPRESENTATIVE OF THESE EMPLOYEES TO PARTICIPATE IN SUCH DISCUSSIONS,
RAN COUNTER TO THE PURPOSES AND POLICIES OF THE ORDER WITH REGARD TO THE
OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE AS THE SPOKESMAN OF THE
EMPLOYEES IT REPRESENTS. FURTHER, THE ASSISTANT SECRETARY FOUND SUCH
CONDUCT TO BE INCONSISTENT WITH THE POLICY SET FORTH IN SECTION 1(A) OF
THE ORDER CONCERNING AN AGENCY HEAD'S OBLIGATION TO ASSURE THAT
EMPLOYEES' RIGHTS ARE PROTECTED. UNDER ALL OF THE CIRCUMSTANCES, THE
ASSISTANT SECRETARY FOUND THAT THE RESPONDENT AGENCY'S CONDUCT
CONSTITUTED AN UNDERMINING OF THE STATUS OF THE EXCLUSIVE REPRESENTATIVE
SELECTED BY THE EMPLOYEES OF THE RESPONDENT ACTIVITY. ACCORDINGLY, HE
FOUND THAT THE RESPONDENT AGENCY'S CONDUCT RESULTED IN IMPROPER
INTERFERENCE WITH, RESTRAINT, OR COERCION OF UNIT EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1)
AND HE, THEREFORE, ORDERED THE RESPONDENT AGENCY TO CEASE AND DESIST
FROM SUCH CONDUCT AND TO TAKE CERTAIN AFFIRMATIVE ACTIONS.
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION (NASA),
WASHINGTON, D.C.
AND
LYNDON B. JOHNSON SPACE CENTER (NASA),
HOUSTON, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284, AFL-CIO
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ACTING
ASSISTANT REGIONAL DIRECTOR JAMES W. HIGGINS' ORDER TRANSFERRING CASE TO
THE ASSISTANT SECRETARY OF LABOR PURSUANT TO SECTION 206.5(A) OF THE
ASSISTANT SECRETARY'S REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THE SUBJECT CASE,
INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND
BRIEFS, THE ASSISTANT SECRETARY FINDS:
THE INSTANT COMPLAINT, AS AMENDED, ALLEGES THAT THE RESPONDENTS
VIOLATED SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY HOLDING
OFFICIAL MEETINGS WITH SEVERAL GROUPS OF EMPLOYEES IN BARGAINING UNITS
REPRESENTED BY THE COMPLAINANT WITHOUT GIVING NOTIFICATION TO THE
EXCLUSIVE REPRESENTATIVE, AND BY DENYING THE COMPLAINANT THE RIGHT TO
HAVE OBSERVERS PRESENT AT THESE MEETINGS.
THE RESPONDENT AGENCY TAKES THE POSITION THAT THE COMPLAINANT'S
RIGHTS AS AN EXCLUSIVE REPRESENTATIVE ARE BASED ON EXCLUSIVE RECOGNITION
ACCORDED IT BY THE ACTIVITY RATHER THAN BY THE AGENCY. THUS, IT ASSERTS
THAT THE AGENCY HAS NO OBLIGATION TO MEET AND CONFER WITH THE
COMPLAINANT. IN ADDITION, THE RESPONDENT AGENCY CONTENDS THAT THE
MEETINGS INVOLVED HEREIN WERE PART OF PROGRAM EVALUATION AND MERELY
INVOLVED A FACTFINDING MISSION RATHER THAN FORMAL DISCUSSIONS OF
PROPOSED CHANGES IN PERSONNEL POLICIES OR PRACTICES. FINALLY, IT ARGUES
THAT THE ALLEGED VIOLATION OF SECTION 19(A)(1) WAS NOT RAISED DURING THE
30 DAY PRE-COMPLAINT CHARGE PERIOD AND, THEREFORE, IT WAS DEPRIVED OF
THE OPPORTUNITY TO RESOLVE THIS ALLEGED VIOLATION INFORMALLY. THE
RESPONDENT ACTIVITY CONTENDS THAT IT DID NOT VIOLATE SECTION 19(A)(1)
AND (6) BECAUSE THE MEETINGS INVOLVED HEREIN WERE NOT WITHIN ITS
AUTHORITY OR DISCRETION. FURTHERMORE, IT ARGUES THAT THROUGH FREQUENT
MEETINGS AND CONSULTATION WITH THE COMPLAINANT, WHICH ARE STILL TAKING
PLACE, IT MET ITS OBLIGATION TO CONSULT AND NEGOTIATE.
THE FACTS, AS SET FORTH IN THE PARTIES' STIPULATION, ARE ESSENTIALLY
AS FOLLOWS:
THE RESPONDENT AGENCY HAS ACCORDED NATIONAL CONSULTATION RIGHTS TO
THE NATIONAL OFFICE OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AND THE RESPONDENT ACTIVITY ACCORDED EXCLUSIVE RECOGNITION TO THE
COMPLAINANT IN THREE SEPARATE BARGAINING UNITS AT THE ACTIVITY.
ON APRIL 16, 1973, DR. DUDLEY G. MCCONNELL WAS APPOINTED TO THE
POSITION OF NASA ASSISTANT ADMINISTRATOR FOR EQUAL OPPORTUNITY PROGRAMS,
WHICH POSITION HE ASSUMED ON OR ABOUT JULY 1, 1973. IN ORDER TO ASSESS
THE STATE OF THE RESPONDENT AGENCY'S EQUAL EMPLOYMENT OPPORTUNITY (EEO)
PROGRAMS, DR. MCCONNELL DECIDED THAT IT WAS NECESSARY TO VISIT VARIOUS
NASA CENTERS, INCLUDING THE RESPONDENT ACTIVITY, WHERE HE COULD MEET
WITH THE EEO OFFICERS AND GROUPS OF EMPLOYEES.
ON OR ABOUT AUGUST 30, 1973, DR. MCCONNELL VISITED THE RESPONDENT
ACTIVITY. AT HIS REQUEST, THE ACTIVITY ARRANGED THREE MEETINGS OR
INTERVIEWS BETWEEN DR. MCCONNELL AND VARIOUS EMPLOYEES OR EMPLOYEE
GROUPS, WITHOUT REGARD AS TO WHETHER THEY WERE MEMBERS OF BARGAINING
UNITS. THESE MEETINGS OR INTERVIEWS WERE HELD WITH BLACK, SPANISH
SURNAME AND WOMEN EMPLOYEES OF THE RESPONDENT ACTIVITY. ALL OF THE
EMPLOYEES WITH WHOM MEETINGS OR INTERVIEWS WERE ARRANGED WERE IN ONE OF
THE BARGAINING UNITS FOR WHICH THE COMPLAINANT HAD BEEN ACCORDED
EXCLUSIVE RECOGNITION. IN ADDITION TO THE ABOVE MEETINGS, SEPARATE
MEETINGS OR INTERVIEWS WERE HELD WITH MEMBERS OF COMMUNITY GROUPS AND
REPRESENTATIVES OF THE COMPLAINANT. NO MANAGEMENT OFFICIAL OF THE
RESPONDENT ACTIVITY ATTENDED THESE MEETINGS, NOR DID THE RESPONDENT
ACTIVITY EXERCISE ANY SUPERVISION OR CONTROL OVER DR. MCCONNELL. AT
THESE MEETINGS, DR. MCCONNELL SOLICITED THE OPINIONS OF THE EMPLOYEES
WITH RESPECT TO THE EEO PROGRAM OF THE RESPONDENT AGENCY AND LISTENED TO
THEIR SUGGESTIONS FOR EEO PROGRAM ADDITIONS AND MODIFICATIONS. NO
COMMENTS WERE MADE TO THE EMPLOYEES.
UPON LEARNING OF THE SCHEDULED MEETINGS, BY LETTER DATED AUGUST 21,
1973, THE COMPLAINANT REQUESTED THAT IT "BE ALLOWED TO HAVE AN OBSERVER
PRESENT AT EACH OF THE MEETINGS OF EMPLOYEE GROUPS" AND THAT IT BE
GRANTED A SEPARATE MEETING WITH DR. MCCONNELL IN ORDER TO GIVE ITS
"THOUGHTS" RELATIVE TO THE EEO PROGRAM. ON AUGUST 27, 1973, THE
RESPONDENT ACTIVITY'S PERSONNEL OFFICER RESPONDED BY LETTER AND,
PURSUANT TO DIRECTIONS FROM THE RESPONDENT AGENCY, GRANTED THE
COMPLAINANT'S REQUEST TO MEET SEPARATELY WITH DR. MCCONNELL, BUT DENIED
THE "SPECIFIC REQUESTS FOR UNION PARTICIPATION IN THE MEETINGS . . . "
THE LETTER STATED FURTHER THAT, "IT HAS BEEN DETERMINED THAT THERE IS NO
BASIS FOR AUTHORIZING A UNION OBSERVER AT EACH OF THE GROUP MEETINGS."
IN MY VIEW, BOTH THE RESPONDENT AGENCY AND THE RESPONDENT ACTIVITY
ARE CORRECT IN THEIR CONTENTION THAT THE COMPLAINANT'S RIGHTS AS
EXCLUSIVE REPRESENTATIVE ARE BASED ON THE EXCLUSIVE RECOGNITION ACCORDED
IT BY THE RESPONDENT ACTIVITY AND THAT THE RESPONDENT AGENCY, UNDER
THESE CIRCUMSTANCES, WAS NOT OBLIGATED TO MEET AND CONFER WITH THE
COMPLAINANT PURSUANT TO SECTION 11(A) OF THE ORDER. THUS, THE
OBLIGATION TO MEET AND CONFER UNDER THE ORDER APPLIES ONLY IN THE
CONTEXT OF THE EXCLUSIVE BARGAINING RELATIONSHIP BETWEEN THE EXCLUSIVE
REPRESENTATIVE AND THE ACTIVITY OR AGENCY WHICH HAS ACCORDED EXCLUSIVE
RECOGNITION. AS NOTED ABOVE, THE EVIDENCE HEREIN ESTABLISHES THAT THE
RESPONDENT ACTIVITY AND NOT THE RESPONDENT AGENCY ACCORDED EXCLUSIVE
RECOGNITION TO THE COMPLAINANT. AND, UNDER THE CIRCUMSTANCES OF THIS
CASE, I FIND THAT THE RESPONDENT ACTIVITY DID NOT ACT IN DEROGATION OF
ITS BARGAINING OBLIGATIONS UNDER THE ORDER. THUS, THE EVIDENCE
ESTABLISHES THAT NO MANAGEMENT OFFICIAL OF THE RESPONDENT ACTIVITY
EXERCISED ANY SUPERVISION OR CONTROL OVER THE ACTIVITIES OF DR.
MCCONNELL, THAT THE RESPONDENT AGENCY'S REPRESENTATIVE CALLED FOR AND
DIRECTED THE MEETINGS OR INTERVIEWS IN QUESTION, AND THAT
REPRESENTATIVES OF THE RESPONDENT ACTIVITY DID NOT ATTEND ANY OF THE
MEETINGS. FURTHER, THERE WAS NO EVIDENCE THAT THE RESPONDENT ACTIVITY
REFUSED TO MEET AND CONFER WITH THE COMPLAINANT CONCERNING ANY MATTERS
INVOLVING PERSONNEL POLICIES OR PRACTICES UNDER ITS CONTROL OR
DIRECTION, INCLUDING MATTERS RELATING TO THE EEO PROGRAM. BASED ON
THESE CONSIDERATION, I FIND THAT THE RESPONDENT ACTIVITY DID NOT VIOLATE
SECTION 19(A)(1) AND (6) OF THE ORDER. MOREOVER, I FIND THAT THE
RESPONDENT AGENCY, WHICH WAS NOT PARTY TO A BARGAINING RELATIONSHIP WITH
THE COMPLAINANT, COULD NOT BE IN VIOLATION OF SECTION 19(A)(6) OF THE
ORDER BASED ON DR. MCCONNELL'S MEETINGS WITH SUCH EMPLOYEES.
HOWEVER, WHILE I FIND THAT THE RESPONDENT AGENCY DID NOT VIOLATE
SECTION 19(A)(6) OF THE ORDER, IN MY VIEW, SUCH FINDING DOES NOT
PRECLUDE A FINDING OF AN INDEPENDENT 19(A)(1) VIOLATION, WHICH IS NOT
PREMISED ON THE EXISTENCE OF AN EXCLUSIVE BARGAINING RELATIONSHIP
BETWEEN THE RESPONDENT AGENCY AND THE COMPLAINANT. /1/ AS STATED IN
PREVIOUS DECISIONS, ONCE AN EXCLUSIVE BARGAINING REPRESENTATIVE HAS BEEN
DESIGNATED BY A MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE UNIT, THE
OBLIGATION OF THE AGENCY OR ACTIVITY WHICH HAS ACCORDED RECOGNITION IS
TO DEAL WITH SUCH REPRESENTATIVE CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING WORKING CONDITIONS OF
ALL UNIT EMPLOYEES. SUCH OBLIGATION IS EXCLUSIVE AND CARRIES WITH IT
THE CORRELATIVE DUTY NOT TO TREAT WITH OTHERS. /2/ FURTHER, SECTION
1(A) OF THE ORDER STATES, IN PART, THAT "THE HEAD OF EACH AGENCY SHALL
TAKE THE ACTION REQUIRED TO ASSURE THAT EMPLOYEES IN THE AGENCY ARE
APPRISED OF THEIR RIGHTS UNDER THIS SECTION, AND THAT NO INTERFERENCE,
RESTRAINT, COERCION, OR DISCRIMINATION IS PRACTICES WITHIN HIS AGENCY TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION." IT IS CLEAR
FROM THE PARTIES' STIPULATION THAT THE RESPONDENT ACTIVITY HAD ACCORDED
EXCLUSIVE RECOGNITION TO THE COMPLAINANT AND THAT THE RESPONDENT AGENCY
WAS AWARE OF THIS BARGAINING RELATIONSHIP AT THE TIME OF THE DENIAL OF
THE REQUEST THAT THE COMPLAINANT'S REPRESENTATIVE BE PERMITTED TO
PARTICIPATE IN THE RESPONDENT AGENCY'S EEO DISCUSSIONS WITH UNIT
EMPLOYEES. NEVERTHELESS, THE RESPONDENT AGENCY, THROUGH ITS
REPRESENTATIVE, DR. MCCONNELL, ALTHOUGH CONDUCTING MEETINGS OR
INTERVIEWS WITH UNIT EMPLOYEES IN WHICH CERTAIN OF THEIR TERMS AND
CONDITIONS OF EMPLOYMENT WERE DISCUSSED, REFUSED THE REQUEST OF THE
EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES TO PARTICIPATE IN SUCH
DISCUSSIONS. IN MY VIEW, BY THESE ACTIONS, THE RESPONDENT AGENCY
IMPLICITLY SUGGESTED TO UNIT EMPLOYEES THAT AGENCY MANAGEMENT COULD DEAL
DIRECTLY WITH THEM CONCERNING THEIR TERMS AND CONDITIONS OF EMPLOYMENT
AND, IN EFFECT, INTERFERED WITH THE EXISTING EXCLUSIVE BARGAINING
RELATIONSHIP. I FIND THAT SUCH CONDUCT BY THE RESPONDENT AGENCY IS
INCONSISTENT WITH, AND IN DEROGATION OF, THE EXCLUSIVE BARGAINING
RELATIONSHIP DESCRIBED ABOVE BETWEEN THE RESPONDENT ACTIVITY AND THE
COMPLAINANT, RUNS COUNTER TO THE PURPOSES AND POLICIES OF THE ORDER WITH
REG ARD THE THE OBLIGATION OWED TO AN EXCLUSIVE REPRESENTATIVE AS THE
SPOKESMAN OF THE EMPLOYEES IT REPRESENTS, AND IS INCONSISTENT WITH THE
POLICY SET FORTH IN THE ORDER CONCERNING AN AGENCY HEAD'S OBLIGATION TO
ASSURE THAT EMPLOYEES' RIGHTS ARE PROTECTED.
UNDER THE CIRCUMSTANCES, I CONCLUDE THAT THE RESPONDENT AGENCY'S
CONDUCT CONSTITUTED AN UNDERMINING OF THE STATUS OF THE EXCLUSIVE
REPRESENTATIVE SELECTED BY THE EMPLOYEES OF THE RESPONDENT ACTIVITY.
SUCH CONDUCT, IN MY VIEW, RESULTED IN IMPROPER INTERFERENCE WITH,
RESTRAINT, OR COERCION OF UNIT EMPLOYEES BY THE RESPONDENT AGENCY IN THE
EXERCISE OF THEIR RIGHTS ASSURED UNDER THE ORDER IN VIOLATION OF SECTION
19(A)(1). /3/
HAVING FOUND THAT THE RESPONDENT AGENCY HAS ENGAGED IN CERTAIN
CONDUCT PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS
AMENDED, I SHALL ORDER THAT THE RESPONDENT AGENCY CEASE AND DESIST
THEREFROM AND TAKE SPECIFIC AFFIRMATIVE ACTIONS, AS SET FORTH BELOW,
DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES AT THE
LYNDON B. JOHNSON SPACE CENTER (NASA) WHO ARE REPRESENTED EXCLUSIVELY BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 2284,
AFL-CIO, BY DEALING DIRECTLY WITH SUCH EMPLOYEES WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING THEIR
GENERAL WORKING CONDITIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER.
(A) UPON REQUEST, PERMIT THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES OF THE LYNDON B. JOHNSON SPACE CENTER (NASA), TO PARTICIPATE
IN MEETINGS OR INTERVIEWS WITH UNIT EMPLOYEES WITH REGARD TO PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING THEIR GENERAL WORKING
CONDITIONS.
(B) POST AT THE LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON,
TEXAS, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE ADMINISTRATOR OF
THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES AT THE LYNDON B.
JOHNSON SPACE CENTER (NASA) HOUSTON, TEXAS, ARE CUSTOMARILY POSTED. THE
ADMINISTRATOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
VIOLATION OF SECTION 19(A)(1) AND (6) AGAINST THE RESPONDENT ACTIVITY
AND VIOLATION OF SECTION 19(A)(6) AGAINST THE RESPONDENT AGENCY BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1974
/1/ AS NOTED ABOVE, THE RESPONDENTS CONTEND THAT THE SECTION 19(A)(1)
PORTION OF THE INSTANT COMPLAINT SHOULD BE DISMISSED BECAUSE THE
COMPLAINANT DID NOT RAISE THIS ALLEGED VIOLATION OF THE ORDER DURING THE
PRESCRIBED 30 DAY PRE-COMPLAINT CHARGE PERIOD. IN MY VIEW, THE
PRE-COMPLAINT CHARGE IN THIS MATTER WAS SUFFICIENTLY CLEAR TO PUT THE
RESPONDENTS ON NOTICE OF THE ALLEGATION INVOLVED HEREIN. ACCORDINGLY, I
REJECT THE RESPONDENTS' MOTION TO DISMISS THE SECTION 19(A)(1)
ALLEGATION OF THE COMPLAINT. SEE, IN THIS REGARD, REPORT ON A RULING OF
THE ASSISTANT SECRETARY, NO. 33.
/2/ SEE E.G., VETERANS ADMINISTRATION, VETERANS ADMINISTRATION
HOSPITAL, MUSKOGEE, OKLAHOMA, A/SLMR NO. 301, AND UNITED STATES ARMY
SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42.
/3/ IN REACHING THIS DECISION IT WAS NOTED THAT SECTION 19(A) OF THE
ORDER SETS FORTH VIOLATIONS OF "AGENCY MANAGEMENT" WHICH IS DEFINED IN
SECTION 2(F) OF THE ORDER AS "THE AGENCY HEAD AND ALL MANAGEMENT
OFFICIALS, SUPERVISORS, AND OTHER REPRESENTATIVES OF MANAGEMENT HAVING
AUTHORITY TO ACT FOR THE AGENCY ON ANY MATTERS RELATING TO THE
IMPLEMENTATION OF THE AGENCY LABOR-MANAGEMENT RELATIONS PROGRAM
ESTABLISHED UNDER THIS ORDER."
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE UNIT EMPLOYEES OF THE
LYNDON B. JOHNSON SPACE CENTER (NASA), HOUSTON, TEXAS, WHO ARE
REPRESENTED EXCLUSIVELY BHE THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284, AFL-CIO, BY DEALING DIRECTLY WITH SUCH
EMPLOYEES WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING THEIR GENERAL WORKING CONDITIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, PERMIT THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 2284, AFL-CIO, TO PARTICIPATE IN MEETINGS OR
INTERVIEWS WITH UNIT EMPLOYEES AT THE LYNDON B. JOHNSON SPACE CENTER
(NASA), HOUSTON, TEXAS, REGARDING PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING THEIR GENERAL WORKING CONDITIONS.
DATED . . . BY
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, ROOM 2200 FEDERAL OFFICE BUILDING, 911 WALNUT STREET, KANSAS
CITY, MISSOURI 64106.
4 A/SLMR 456; P. 804; CASE NO. 40-5476(RO); NOVEMBER 26, 1974.
U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
SOUTHERN REGION
A/SLMR NO. 456
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1735,
(NFFE) SOUGHT AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND
NON-PROFESSIONAL EMPLOYEES OF THE ELECTRONIC ENGINEERING BRANCH, AIRWAY
FACILITIES DIVISION OF THE FEDERAL AVIATION ADMINISTRATION'S SOUTHERN
REGION. THE ACTIVITY CONTESTED THE APPROPRIATENESS OF THE UNIT SOUGHT.
THE ASSISTANT SECRETARY DETERMINED THAT THE PROPOSED UNIT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. HE NOTED
PARTICULARLY THAT THE ACCOMPLISHMENT OF THE MISSION OF THE AIRWAY
FACILITIES DIVISION IS DEPENDENT UPON THE INTERACTION AND COOPERATION OF
THE VARIOUS REGIONAL OFFICE SUB-ELEMENTS OF THE DIVISION AND THAT EACH,
INCLUDING THE ELECTRONIC ENGINEERING BRANCH, PERFORMS A NECESSARY PART
OF AN INTEGRATED WORK PROCESS. FURTHER, HE FOUND THAT THE JOB
CLASSIFICATIONS OF ELECTRONIC ENGINEERING BRANCH PERSONNEL ARE NOT
UNIQUE TO THAT PARTICULAR SUB-ELEMENT BUT GENERALLY ARE COMMON
THROUGHOUT THE DIVISION AND THAT THERE HAVE BEEN EMPLOYEE TRANSFERS FROM
BOTH THE REGIONAL OFFICE AND FIELD COMPONENTS OF THE ELECTRONIC
ENGINEERING BRANCH INTO THE OTHER SUB-ELEMENTS OF THE DIVISION. ALSO,
THE ASSISTANT SECRETARY NOTED THAT ALL PERSONNEL SERVICES, INCLUDING THE
MAINTENANCE OF PERSONNEL RECORDS, FOR ALL EMPLOYEES OF THE AIRWAY
FACILITIES DIVISION ARE PROVIDED BY THE MANPOWER DIVISION OF THE
SOUTHERN REGION.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES SOUGHT BY THE NFFE DID NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM CERTAIN OTHER EMPLOYEES
OF THE ACTIVITY AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE
ORDERED THAT THE PETITION BE DISMISSED.
U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
SOUTHERN REGION /1/
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1735
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LEONARD L.
GAROFOLO. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE
FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1735, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE ELECTRONIC ENGINEERING
BRANCH, AIRWAY FACILITIES DIVISION, SOUTHERN REGION, EXCLUDING
MANAGEMENT OFFICIAL, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER IN EXECUTIVE ORDER 11491, AS AMENDED. /2/
THE ACTIVITY CONTENDS THAT THE PETITIONED FOR UNIT IS INAPPROPRIATE.
IN THIS REGARD, THE RECORD REVEALS THAT THERE IS NO HISTORY OF
BARGAINING WITH RESPECT TO THE CLAIMED UNIT OR OTHER AIRWAY FACILITIES
DIVISION PERSONNEL EMPLOYED AT THE ACTIVITY'S REGIONAL OFFICE.
THE EVIDENCE ESTABLISHES THAT THE AIRWAY FACILITIES DIVISION IS ONE
OF FIVE MAJOR OPERATING DIVISIONS OF THE SOUTHERN REGION OF THE FEDERAL
AVIATION ADMINISTRATION. THE DIVISION HAS THE TOTAL RESPONSIBILITY FOR
THE ENGINEERING, INSTALLATION, MODERNIZATION, AND MAINTENANCE OF THE
ELECTRONIC AIDS IN THE REGION, INCLUDING COMMUNICATION, RADAR, AND
NAVIGATIONAL AIDS. AT THE REGIONAL OFFICE IN ATLANTA, GEORGIA, THE
AIRWAY FACILITIES DIVISION CONSISTS OF TWO STAFF COMPONENTS AND OUR
BRANCHES, ALL OF WHICH REPORT DIRECTLY TO THE CHIEF OF THE DIVISION.
/3/ AT THE FIELD LEVEL, THE DIVISION HAS 17 SECTORS WHICH REPORT
DIRECTLY TO THE CHIEF OF THE DIVISION, FIELD MAINTENANCE PARTIES
ASSIGNED TO THE ENVIRONMENTAL OPERATIONS SECTION OF THE MAINTENANCE
OPERATIONS BRANCH, AND TWO CATEGORY IV F AND E FIELD STAFFS, ONE OF
WHICH IS ASSIGNED TO THE ELECTRONIC ENGINEERING BRANCH AND THE OTHER TO
THE ENVIRONMENTAL ENGINEERING BRANCH.
THE RECORD REVEALS THAT IN THE PROCESS OF ACCOMPLISHING ITS MISSION,
THE AIRWAY FACILITIES DIVISION AT THE REGIONAL OFFICE LEVEL PERFORMS A
NUMBER OF TASKS IN RESPONSE TO EACH REQUIREMENT TO FACILITATE AN AIR
TRAFFIC CONTROL JOB OR FUNCTION. THESE TASKS INCLUDE MAKING COST
ESTIMATES, PLANNING, FUNDING, SCHEDULING, ENGINEERING HARDWARE,
CORRELATING THE USE OF FREQUENCIES, ENGINEERING PLANT FACILITIES,
WRITING SPECIFICATIONS, DEVELOPING MAINTENANCE PROGRAMS, AND EVALUATION.
THE ELECTRONIC ENGINEERING BRANCH IS RESPONSIBLE PRIMARILY FOR THE
"ENGINEERING HARDWARE" PART OF THE TASK SERIES. THE EVIDENCE
ESTABLISHES THAT THE BRANCH IS PART OF AN INTEGRATED WORK OPERATION OR
PLANNING AND PROGRAM CYCLE AND PERFORMS ITS FUNCTION BY MEANS OF CLOSE,
DAILY COORDINATION WITH THE OTHER STAFFS AND BRANCHES OF THE DIVISION AT
THE REGIONAL OFFICE. /4/
MOST OF THE PERSONNEL OF THE AIRWAY FACILITIES DIVISION AT THE
REGIONAL OFFICE, INCLUDING THOSE IN THE ELECTRONIC ENGINEERING BRANCH,
ARE ENGINEERS AND A MAJORITY OF THESE ARE ELECTRONIC ENGINEERS, GS-0855.
WITH RESPECT TO THE CATEGORY IV F AND E FIELD STAFF ASSIGNED TO THE
ELECTRONIC ENGINEERING BRANCH, THE RECORD INDICATES THAT IT IS COMPOSED
OF ELECTRONIC ENGINEERS, GS-0855, AND TECHNICIANS, GS-0856. THE DUTIES
OF THE FIELD STAFF CONSTITUTE THE "ESTABLISHMENT OF THE FACILITIES"
PORTION OF THE ELECTRONIC ENGINEERING BRANCH'S FUNCTIONS AND CONSIST
TOTALLY OF THE PHYSICAL INSTALLATION AND MODIFICATION OF ELECTRONIC
HARDWARE THROUGHOUT THE REGION. /5/ ALTHOUGH A NUMBER OF ENGINEERS FROM
THE FIELD STAFF HAVE BEEN PROMOTED AND TRANSFERRED INTO THE REGIONAL
OFFICE, THE MAJORITY OF THESE HAVE BEEN PROMOTED INTO SUB-ELEMENTS OF
THE AIRWAY FACILITIES DIVISION OTHER THAN THE ELECTRONIC ENGINEERING
BRANCH. FURTHER, IT APPEARS THAT OFFICE ENGINEERS OF THE ELECTRONIC
ENGINEERING BRANCH HAVE HAD TEMPORARY AND PERMANENT TRANSFERS INTO OTHER
REGIONAL OFFICE SUB-ELEMENTS OF THE AIRWAY FACILITIES DIVISION.
ACCORDING TO RECORD EVIDENCE, THE MANPOWER DIVISION OF THE SOUTHERN
REGION MAINTAINS ALL PERSONNEL RECORDS AND PROVIDES THE FULL LIKE OF
PERSONNEL SERVICES FOR THE AIRWAY FACILITIES DIVISION. THE RECORD
DISCLOSES THAT ALL ENGINEER PERSONNEL IN THE AIRWAY FACILITIES DIVISION,
WHETHER STATIONED AT THE REGIONAL OFFICE OR IN THE FIELD, SHARE COMMON
PERSONNEL POLICIES, PRACTICES, AND PROCEDURES. IN THIS CONNECTION, ALL
ENGINEER PERSONNEL ARE SUBJECT TO THE SAME REDUCTION IN FORCE
PROCEDURES, THE SAME AGENCY GRIEVANCE PROCEDURE, THE SAME LEAVE POLICY,
THE SAME PROMOTION POLICIES, AND THE SAME AREA OF CONSIDERATION FOR
PROMOTION OPPORTUNITIES.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT HEREIN BY THE
NFFE IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER
EXECUTIVE ORDER 11491, AS AMENDED. IN THIS REGARD, IT WAS NOTED
PARTICULARLY THAT THE ACCOMPLISHMENT OF THE MISSION OF THE AIRWAY
FACILITIES DIVISION IS DEPENDENT UPON THE INTERACTION AND COOPERATION OF
THE VARIOUS REGIONAL OFFICE SUB-ELEMENTS OF THE DIVISION AND THAT EACH
COMPONENT, INCLUDING THE ELECTRONIC ENGINEERING BRANCH, PERFORMS A
NECESSARY PART OF THE INTEGRATED WORK PROCESS. FURTHER, THE JOB
CLASSIFICATIONS OF THE PERSONNEL WITHIN THE ELECTRONIC ENGINEERING
BRANCH ARE NOT UNIQUE TO THAT PARTICULAR SUB-ELEMENT BUT GENERALLY ARE
COMMON THROUGHOUT THE DIVISION. MOREOVER, THERE HAVE BEEN EMPLOYEE
TRANSFERS FROM BOTH THE REGIONAL OFFICE AND FIELD COMPONENTS OF THE
ELECTRONIC ENGINEERING BRANCH INTO THE OTHER SUB-ELEMENTS OF THE
DIVISION. AND, AS NOTED ABOVE, THE EVIDENCE ESTABLISHES THAT ALL
PERSONNEL SERVICES, INCLUDING THE MAINTENANCE OF PERSONNEL RECORDS FOR
ALL EMPLOYEES OF THE DIVISION, ARE PROVIDED BY THE MANPOWER DIVISION OF
THE SOUTHERN REGION.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE
ELECTRONIC ENGINEERING BRANCH DO NOT SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM CERTAIN OTHER EMPLOYEES
OF THE ACTIVITY AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I
SHALL ORDER THAT THE NFFE'S PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 40-5476(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE UNIT DESCRIPTION APPEARS AS AMENDED AT THE HEARING.
/3/ THESE ARE THE EVALUATION STAFF, THE FREQUENCY MANAGEMENT AND
LEASED COMMUNICATIONS STAFF, THE PROGRAM AND PLANNING BRANCH, THE
ELECTRONIC ENGINEERING BRANCH, THE ENVIRONMENTAL ENGINEERING BRANCH, AND
THE MAINTENANCE OPERATIONS BRANCH.
/4/ COORDINATION BETWEEN THE DIVISION SUB-ELEMENTS BEGINS AT THE
BRANCH CHIEF LEVEL AND EXTENDS DOWN TO THE PROJECT ENGINEERS WHO, IN THE
ELECTRONIC ENGINEERING BRANCH, CONSTITUTE APPROXIMATELY 25 PERCENT OF
THE BRANCH PERSONNEL LOCATED AT THE REGIONAL OFFICE.
/5/ THE RECORD REVEALS THAT FIELD PERSONNEL ASSIGNED TO THE
ELECTRONIC ENGINEERING BRANCH DEAL DIRECTLY WITH THE OTHER BRANCH
PERSONNEL AND HAVE VIRTUALLY NO DAILY WORK INTERACTION OR COORDINATION
WITH OTHER SUB-ELEMENTS OF THE DIVISION.
4 A/SLMR 455; P. 800; CASE NO. 62-3838(CA); NOVEMBER 26, 1974.
U.S. DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY,
U.S. ARMY ADJUTANT GENERAL
PUBLICATION CENTER,
ST. LOUIS, MISSOURI
A/SLMR NO. 455
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2761, AFL-CIO (AFGE),
AGAINST THE U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY,
ADJUTANT GENERAL PUBLICATION CENTER, ST. LOUIS, MISSOURI (RESPONDENT),
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY REFUSING TO PROCESS A GRIEVANCE TO ARBITRATION UNDER THE
PROVISIONS OF THE PARTIES' NEGOTIATED AGREEMENT.
THE EVIDENCE REVEALED THAT, UNDER THE TERMS OF THE PARTIES'
NEGOTIATED AGREEMENT, AN EMPLOYEE WHO RECEIVES A SATISFACTORY
PERFORMANCE RATING AND IS DISSATISFIED WITH SUCH RATING MAY RAISE THE
MATTER BEFORE A LOCAL AD HOC BOARD OF REVIEW OR A STATUTORY PERFORMANCE
RATING BOARD OF REVIEW. ON JUNE 28, 1974, AN EMPLOYEE WHO RECEIVED A
SATISFACTORY RATING FILED A GRIEVANCE QUESTIONING THE PROPRIETY OF HIS
RATING THROUGH THE MEDIUM OF THE AD HOC BOARD OF REVIEW AND THE
NEGOTIATED GRIEVANCE PROCEDURE. HE SUBSEQUENTLY WITHDREW THE GRIEVANCE
FROM CONSIDERATION BY TYE BOARD OF REVIEW BUT CONTINUED TO PROCESS THE
MATTER THROUGH THE NEGOTIATED GRIEVANCE PROCEDURE. WHEN THE GRIEVANCE
REACHED THE ARBITRATION STEP IN THE GRIEVANCE PROCEDURE THE RESPONDENT
REFUSED TO PROCEED TO ARBITRATION BECAUSE THE SUBMISSION OF THE
GRIEVANCE TO ARBITRATION WOULD BE IN VIOLATION OF THE NEGOTIATED
AGREEMENT AS WELL AS APPLICABLE REGULATIONS.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT, AS THE EVIDENCE
ESTABLISHED THAT THE NEGOTIATED AGREEMENT PROVIDED THAT GRIEVANCES
RELATING TO SATISFACTORY RATINGS WOULD BE PROCESSED EXCLUSIVELY THROUGH
THE MEDIUM OF THE AD HOC BOARD OF REVIEW OR A STATUTORY PERFORMANCE
RATING BOARD OF REVIEW AND, AS THERE WAS AN ABSENCE OF ANY EVIDENCE OF A
CONTRARY INTENT BY THE PARTIES, THE RESPONDENT'S REFUSAL TO ACCEDE TO
THE COMPLAINANT'S REQUEST TO SUBMIT THE INSTANT GRIEVANCE PERTAINING TO
A SATISFACTORY PERFORMANCE RATING TO ARBITRATION DID NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE AND, ACCORDINGLY, ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
U.S. DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY,
U.S. ARMY ADJUTANT GENERAL
PUBLICATION CENTER,
ST. LOUIS, MISSOURI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2761, AFL-CIO
ST. LOUIS, MISSOURI
ON SEPTEMBER 12, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS NO PREJUDICIAL
ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-3838(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1974
IN THE MATTER OF
U.S. DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY
U.S. ARMY ADJUTANT GENERAL
PUBLICATION CENTER
ST. LOUIS, MISSOURI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
LOCAL 2761, AFL-CIO
ST. LOUIS, MISSOURI
LAWRENCE NEWMEYER, ESQUIRE
7361 NORMANDIE COURT
APARTMENT C
HAZELWOOD, MISSOURI
MR. WALTER VON STEIGER
CHIEF LABOR MANAGEMENT AND EMPLOYEE
LABOR RELATIONS BRANCH. C.P.O.
32 BEACON HILL
ST. LOUIS, MISSOURI
MR. WILLIAM COLE
3641 MARVIN
ST. JOHN, MISSOURI
MR. WILLIAM MARTIN, JR.
4830 CUPPLES PLACE
ST. LOUIS, MISSOURI
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON NOVEMBER 21, 1973,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY LOCAL 2761, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER CALLED THE
UNION OR AFGE), AGAINST THE U.S. ARMY ADJUTANT GENERAL PUBLICATIONS
CENTER, ST. LOUIS, MISSOURI, (HEREINAFTER CALLED THE ARMY OR AGENCY), A
NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL
DIRECTOR FOR THE KANSAS CITY, MISSOURI, REGION ON JUNE 26, 1974.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER BY VIRTUE OF ITS ACTION IN
REFUSING TO PROCESS A GRIEVANCE TO ARBITRATION.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 13, 1974, IN ST.
LOUIS, MISSOURI. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESS AND HIS DEMEANOR AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING CONCLUSIONS AND RECOMMENDATIONS:
THE FACTS ARE NOT IN DISPUTE AND NO CREDIBILITY ISSUES ARE INVOLVED.
THE UNION, WHICH IS THE RECOGNIZED REPRESENTATIVE OF A MAJORITY OF
THE AGENCY'S EMPLOYEES, AND THE ARMY ARE PARTIES TO A COLLECTIVE
BARGAINING CONTRACT DATED MAY 5, 1970. ARTICLE XXXIII OF THE
AFOREMENTIONED CONTRACT CONTAINS A FOUR STEP GRIEVANCE PROCEDURE.
ACCORDING TO STEP FOUR OF THE PROCEDURE, IF THE UNION IS DISSATISFIED
WITH THE DECISION OF THE COMMANDING OFFICER AT THE THIRD STEP OF THE
GRIEVANCE PROCEDURE, IT MAY REQUEST ARBITRATION OF THE MATTER. UPON
SUCH REQUEST, ACCORDING TO THE CONTRACT, IT IS THEN INCUMBENT UPON THE
AGENCY TO PARTICIPATE IN THE SELECTION OF AN ARBITRATOR FOR RESOLUTION
OF THE MATTER IN DISPUTE.
ARTICLE XXIII OF THE CONTRACT PROVIDES AS FOLLOWS:
SECTION 1. THE EMPLOYER AND THE UNION AGREE THAT A WELL CONDUCTED
PERFORMANCE EVALUATION PROGRAM RESULTS IN BENEFITS TO BOTH THE EMPLOYER
AND EMPLOYEES.
SECTION 2. THE EMPLOYER AGREES THAT INFORMAL AND SPONTANEOUS
DISCUSSIONS, IN ADDITION TO PERIODIC COUNSELING SESSIONS, WILL BE HELD
BETWEEN SUPERVISOR AND EMPLOYEE TO DISCUSS PERFORMANCE AND OTHER MATTERS
PERTINENT TO THE EMPLOYEE'S PERFORMANCE. THE SUPERVISOR IN THE COURSE
OF THE EVALUATION PROCESS SHALL DISCUSS WITH THE INDIVIDUAL EMPLOYEE,
TRAINING NEEDS AS RELATED TO HIS PRESENT WORK OR ANTICIPATED
ASSIGNMENTS.
SECTION 3. WHEN AN EMPLOYEE PERFORMED IN ALL MAJOR ASPECTS OF HIS
ASSIGNED WORK DURING THE ENTIRE RATING PERIOD IN SUCH A MANNER THAT HIS
PERFORMANCE NOT ONLY EXCEEDED NORMAL REQUIREMENTS BUT WAS OUTSTANDING,
HE WILL BE RECOMMENDED FOR AN OUTSTANDING PERFORMANCE RATING AND WILL BE
CONSIDERED FOR AN APPROPRIATE AWARD.
SECTION 4. WHEN AN EMPLOYEE BELIEVES THAT HE HAS NOT BEEN FAIRLY AND
OBJECTIVELY RATED, THE PROCEDURE OUTLINED BELOW WILL BE USED:
A. THE EMPLOYEE WILL BE COUNSELED AND EVERY EFFORT MADE TO RESOLVE
HIS PROBLEM ON A VERBAL BASIS.
B. IF THE EMPLOYEE STILL BELIEVES THAT HE HAS NOT BEEN FAIRLY AND
EQUITABLY RATED, HE WILL BE ADVISED OF HIS RIGHT TO HAVE HIS RATING
REVIEWED IMPARTIALLY:
(1) EITHER BY A LOCAL AD HOC BOARD OF REVIEW OR A STATUTORY
PERFORMANCE RATING BOARD OF REVIEW, BUT NOT BY BOTH, WITH DECISION OF
THE BOARD BEING FINAL, IF HE RECEIVED A SATISFACTORY RATING.
(2) EITHER AS A TYPE III GRIEVANCE UNDER CPR E2.4 OR BY A PERFORMANCE
RATING BOARD OF REVIEW, OR BY BOTH IN THAT ORDER, WITH THE DECISION OF
THE BOARD BEING FINAL, IF HE RECEIVED AN UNSATISFACTORY RATING, OR
(3) BY PROCESSING UNDER THE GRIEVANCE PROCEDURES AS SET FORTH IN
ARTICLE XXXIII, THIS CONTRACT, OR BY A PERFORMANCE RATING BOARD OF
REVIEW, OR BOTH IN THAT ORDER, WITH THE DECISION OF THE BOARD BEING
FINAL, IF HE RECEIVED AN UNSATISFACTORY RATING.
ARTICLE XXIII, SECTION 4, QUOTED ABOVE, IS A RESTATEMENT OF
DEPARTMENT OF ARMY, CIVILIAN PERSONNEL REGULATION 400 WHICH IS
APPLICABLE TO ALL CIVILIAN EMPLOYEES OF THE DEPARTMENT OF ARMY.
ON MAY 10, 1973, NORMAN FULKERSON, A CIVILIAN EMPLOYEE OF THE AGENCY,
RECEIVED A SATISFACTORY RATING FROM HIS SUPERVISOR, FORREST WAGGONER.
THEREAFTER, ON JUNE 14, 1973, FULKERSON, WHO WAS NOT SATISFIED WITH THE
RATING, FILED AN APPEAL OF HIS RATING THROUGH THE MEDIUM OF ARTICLE
XXIII OF THE CONTRACT, I.E., AD HOC COMMITTEE. SUBSEQUENTLY, ON JUNE
28, 1973, HE WITHDREW HIS APPEAL UNDER ARTICLE XXIII BUT CONTINUED,
HOWEVER, TO PURSUE HIS COMPLAINT RELATIVE TO HIS EVALUATION THROUGH THE
MEDIUM OF THE GRIEVANCE PROCEDURE, ARTICLE XXXIII. ALTHOUGH NOT CLEAR
FROM THE RECORD, FULKERSON'S GRIEVANCE WHICH WAS BEING PROCESSED BY AFGE
EVENTUALLY REACHED STEP 4 OF THE GRIEVANCE PROCEDURE, SUBMISSION TO
ARBITRATION.
ON AUGUST 16, 1973, COLONEL PENROD, COMMANDING OFFICER OF THE AGENCY,
FOLLOWING REVIEW OF FULKERSON'S GRIEVANCE, WROTE A LETTER TO THE
CHAIRMAN OF THE AFGE GRIEVANCE COMMITTEE WHEREIN HE CITED THE PROVISIONS
OF ARTICLES XXIII AND XXXIII OF THE CONTRACT AND CONCLUDED THAT THE
MATTER OF FULKERSON'S SATISFACTORY APPRAISAL WAS NOT SUBJECT TO THE
GRIEVANCE PROCEDURE. THEREAFTER, REPRESENTATIVES OF THE AFGE AND
COLONEL PENROD EXCHANGED A NUMBER OF LETTERS CONCERNING FULKERSON'S
APPRAISAL. IN THE AFOREMENTIONED LETTERS THE AFGE REQUESTED SUBMISSION
OF THE MATTER TO ARBITRATION AND THE AGENCY, THROUGH COLONEL PENROD,
REFUSED TO TAKE SUCH ACTION POINTING OUT THAT SUBMISSION OF THE MATTER
TO ARBITRATION WOULD BE BOTH A VIOLATION OF THE CONTRACT AND APPLICABLE
REGULATIONS.
IT IS WELL SETTLED THAT AN AGENCY'S REFUSAL, PREDICATED SOLELY ON ITS
OWN UNILATERAL INTERPRETATION OF CONTRACT PROVISIONS, TO SUBMIT A
GRIEVANCE TO ARBITRATION PURSUANT TO THE TERMS OF A NEGOTIATED GRIEVANCE
PROCEDURE IS VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE ORDER. /1/
IN REACHING THIS CONCLUSION THE ASSISTANT SECRETARY HAS FOUND THAT SUCH
ACTION CONSTITUTES A UNILATERAL MODIFICATION OF THE CONTRACT SINCE IT
RENDERS USELESS THE BI-LATERALLY ESTABLISHED GRIEVANCE AND ARBITRATION
MACHINERY, EVIDENCES TO THE RANK AND FILE EMPLOYEES THE FUTILITY OF
JOINING A UNION AND CONSEQUENTLY INTERFERES WITH THE RIGHTS OF EMPLOYEES
ESTABLISHED UNDER SECTION 1(A) OF THE ORDER.
IN THE ABOVE CITED CASES, AS WELL AS OTHERS, THE DETERMINATION HAS
ALWAYS TURNED ON THE FACT THAT THE REFUSAL TO SUBMIT THE GRIEVANCE TO
ARBITRATION WAS PREDICATED SOLELY ON THE AGENCY'S DETERMINATION THAT ITS
INTERPRETATION OF THE CONTRACTUAL TERMS WAS THE CORRECT ONE AND THAT
THEREFORE ANY FURTHER DECISION BY AN ARBITRATOR WOULD BE SUPERFLUOUS.
IN NO CASE DID THE AGENCY'S REFUSAL TURN ON SPECIFIC CONTRACT LANGUAGE
EXCLUDING THE MATTER OR MATTERS IN DISPUTE FROM THE NEGOTIATED GRIEVANCE
PROCEDURE.
WHILE IN THE INSTANT CASE THE PARTIES HAVE AGREED TO A CONTRACT
CONTAINING A GRIEVANCE PROCEDURE, THE FOURTH STEP OF WHICH BEING
ARBITRATION, APPLICABLE TO THE RESOLUTION OF COMPLAINTS INVOLVING THE
INTERPRETATION AND APPLICATION OF THE CONTRACT, THEY HAVE ALSO AGREED TO
ANOTHER SEPARATE AND EXCLUSIVE APPEALS PROCEDURE IN THE AREA OF
"PERFORMANCE EVALUATIONS". BY THE VERY TERMS OF THIS LATTER PROCEDURE
CONTAINED IN ARTICLE XXIII, SECTION 4(1), AN EMPLOYEE BEING DISSATISFIED
WITH HIS "SATISFACTORY RATING" MAY HAVE SUCH RATING REVIEWED "BY A LOCAL
AD HOC BOARD OF REVIEW OR A STATUTORY PERFORMANCE RATING BOARD OF
REVIEW". ONLY IN THE CASE OF AN "UNSATISFACTORY RATING" MAY AN EMPLOYEE
ELECT TO UTILIZE, AMONG OTHER AVENUES OF APPEAL, THE GRIEVANCE PROCEDURE
SET FORTH IN ARTICLE XXXIII OF THE CONTRACT.
IN VIEW OF THE FOREGOING CONTRACTUAL PROVISION, IT IS CLEAR THAT THE
PROCESSING OF ANY GRIEVANCE RELATING TO A "SATISFACTORY RATING" IS TO BE
SOLELY THROUGH THE MEDIUM OF THE AD HOC BOARD OF REVIEW OR A STATUTORY
PERFORMANCE RATING BOARD OF REVIEW. HAD THE INTENT BEEN OTHERWISE THERE
WOULD HAVE BEEN NO NECESSITY FOR MAKING THE DISTINCTION BETWEEN THE
APPEALS AVAILABLE TO THE DIFFERENT TYPES OF RATINGS. /2/
ACCORDINGLY, IN THE ABSENCE OF ANY EVIDENCE WHATSOEVER, INDICATING A
CONTRARY INTENT FROM A LITERAL READING OF THE WORDS CONTAINED IN ARTICLE
XXIII, IT CANNOT BE SAID THAT THE AGENCY'S ACTION IN REFUSING TO ACCEDE
TO THE UNION'S REQUEST FOR ARBITRATION UNDER THE CIRCUMSTANCES HERE
DISCLOSED AMOUNTED TO A UNILATERAL CHANGE IN A CONDITION OF EMPLOYMENT,
IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER. /3/
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
DATED: SEPTEMBER 12, 1974
WASHINGTON, D.C.
/1/ PUGET SOUND NAVAL SHIPYARD, DEPT. OF THE NAVY, BREMERTON,
WASHINGTON A/SLMR NO. 332; NORFOLK NAVAL SHIPYARD, A/SLMR NO. 290;
LONG BEACH NAVAL SHIPYARD A/SLMR NO. 154.
/2/ IN THIS CONNECTION IT IS NOTED THAT ARTICLE XXIII OF THE CONTRACT
IS A RESTATEMENT OF DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION
400 WHICH IS APPLICABLE TO ALL ARMY INSTALLATION AND THEREFORE A
"NON-NEGOTIABLE ITEM". CF. UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL
1460 AND THE U.S. MARINE ACADEMY, FLRC NO. 71A-15.
/3/ HAD THE UNION'S REQUEST FOR ARBITRATION CONCERNED AN
INTERPRETATION OF ARTICLES XXIII AND XXXIII OF THE CONTRACT, A CONTRARY
CONCLUSION MIGHT WELL HAVE BEEN JUSTIFIED. HOWEVER, I DO NOT FIND THE
UNION'S REQUEST TO BE COUCHED IN SUCH TERMS.
4 A/SLMR 454; P. 790; CASE NO. 73-531; NOVEMBER 26, 1974.
ARMY AND AIR FORCE EXCHANGE SERVICE,
PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE
A/SLMR NO. 454
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY INTERFERING WITH THE EXERCISE OF PROTECTED RIGHTS OF
EMPLOYEES EXCLUSIVELY REPRESENTED BY COMPLAINANT AND BY RECLASSIFYING
CERTAIN EMPLOYEES WITHOUT CONSULTING AND CONFERRING IN GOOD FAITH.
THE ASSISTANT SECRETARY CONCURRED WITH THE CHIEF ADMINISTRATIVE LAW
JUDGE'S FINDING THAT, ALTHOUGH THE RESPONDENT WAS NOT OBLIGATED TO MEET
AND CONFER WITH THE COMPLAINANT ON THE RECLASSIFICATION OF THE EMPLOYEES
INVOLVED, IT VIOLATED SECTION 19(A)(6) BY INSTITUTING THE CLASSIFICATION
WITHOUT AFFORDING THE COMPLAINANT A MEANINGFUL OPPORTUNITY TO MEET AND
CONFER ON THE IMPACT OF SUCH ACTION ON ADVERSELY AFFECTED UNIT
EMPLOYEES. IN FINDING THAT RESPONDENT FAILED TO PROVIDE AN OPPORTUNITY
TO MEET AND CONFER ON SUCH IMPACT, IT WAS NOTED THAT ON JUNE 7, 1973,
THE CHIEF OF THE ENGINEERING BRANCH MET WITH THREE STEWARDS OF THE
COMPLAINANT AND INDICATED THAT THE EFFECTIVE DATE OF THE
RECLASSIFICATION WAS "AS OF NOW," LEAVING THE COMPLAINANT'S
REPRESENTATIVES WITH THE BELIEF THAT THE RECLASSIFICATION WAS AN
ACCOMPLISHED FACT AND THAT NO OPPORTUNITY EXISTED FOR THE COMPLAINANT TO
HAVE ANY INPUT INTO THE IMPLEMENTATION OF THE DECISION, EVEN THOUGH THE
EFFECTIVE DATE OF THE RECLASSIFICATION WAS, IN FACT, JUNE 15, 1973.
THE CHIEF ADMINISTRATIVE LAW JUDGE ALSO FOUND THE RESPONDENT'S
CONDUCT CONSTITUTED A VIOLATION OF SECTION 19(A)(1). HE NOTED THAT THIS
FINDING WAS MADE AFTER AN INDEPENDENT EVALUATION OF THE EVIDENCE. IN
HIS DECISION, THE CHIEF ADMINISTRATIVE LAW JUDGE IMPLIED THAT UNDER THE
HOLDINGS OF THE ASSISTANT SECRETARY A SECTION 19(A)(1) VIOLATION MIGHT
NOT BE FOUND AS A DERIVATIVE OF A SECTION 19(A)(6) VIOLATION. IN THIS
REGARD, THE ASSISTANT SECRETARY NOTED THAT THE ORIGINAL LANGUAGE OF
SECTION 19(D) IN EXECUTIVE ORDER 11491, EFFECTIVE JANUARY 1, 1970,
PRECLUDED A FINDING OF A DERIVATIVE SECTION 19(A)(1) VIOLATION BASED ON
A VIOLATION OF OTHER SUBSECTIONS OF SECTION 19(A) BECAUSE OF THE
POSSIBILITY THAT AN ESTABLISHED GRIEVANCE PROCEDURE EXISTED WHICH WOULD
REQUIRE DISMISSAL OF THE SECTION 19(A)(1) ALLEGATION. IN THE ASSISTANT
SECRETARY'S VIEW, EXECUTIVE ORDER 11616, WHICH AMENDED EXECUTIVE ORDER
11491, EFFECTIVE NOVEMBER 24, 1971, MODIFIED THE PERTINENT PARTS OF
SECTION 19(D) SO THAT CURRENTLY WHEN AN AGGRIEVED PARTY HAS ELECTED TO
PROCESS HIS ACTION UNDER THE UNFAIR LABOR PRACTICE PROCEDURES OF THE
ORDER, A DERIVATIVE VIOLATION OF SECTION 19(A)(1) OF THE ORDER MAY BE
FOUND, WHEN ALLEGED IN CONNECTION WITH CONDUCT WHICH IS DETERMINED TO BE
VIOLATIVE OF OTHER SUBSECTIONS OF SECTION 19(A). IN THIS CONNECTION,
THE ASSISTANT SECRETARY NOTED THAT A VIOLATION OF ANY OF THE OTHER
SUBSECTIONS OF SECTION 19(A) NECESSARILY WOULD TEND TO INTERFERE WITH,
RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE
ORDER AND, THEREFORE, ALSO WOULD CONSTITUTE A VIOLATION OF SECTION
19(A)(1). ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT THE
RESPONDENT'S CONDUCT IN THE INSTANT CASE CONSTITUTED A VIOLATION OF
SECTION 19(A)(6) AND, DERIVATIVELY, ALSO VIOLATED SECTION 19(A)(1) OF
THE ORDER.
ARMY AND AIR FORCE EXCHANGE SERVICE,
PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE
AND
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
LOCAL 1186
ON SEPTEMBER 6, 1974, CHIEF ADMINISTRATIVE LAW JUDGE H. STEPHAN
GORDON ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE
ACTION, AS SET FORTH IN THE ATTACHED CHIEF ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION. NO EXCEPTIONS WERE FILED TO THE CHIEF
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE CHIEF
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, I HEREBY ADOPT THE
CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION.
THE CHIEF ADMINISTRATIVE LAW JUDGE ESSENTIALLY FOUND, AND I CONCUR,
THAT ALTHOUGH THE RESPONDENT WAS NOT OBLIGATED TO MEET AND CONFER WITH
THE COMPLAINANT ON THE RECLASSIFICATION OF THE EMPLOYEES INVOLVED IN THE
INSTANT CASE, THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY
INSTITUTING THE RECLASSIFICATION WITHOUT AFFORDING THE COMPLAINANT A
MEANINGFUL OPPORTUNITY TO MEET AND CONFER ON THE IMPACT OF SUCH ACTION
ON ADVERSELY AFFECTED UNIT EMPLOYEES.
IN ADDITION, THE CHIEF ADMINISTRATIVE LAW JUDGE FOUND THAT THIS SAME
CONDUCT OF THE RESPONDENT INTERFERED WITH THE SECTION 1(A) RIGHTS OF THE
EMPLOYEES AFFECTED IN VIOLATION OF SECTION 19(A)(1). IN THIS REGARD, HE
IMPLIED THAT, UNDER THE HOLDINGS OF THE ASSISTANT SECRETARY, SUCH A
19(A)(1) VIOLATION MUST BE FOUND TO CONSTITUTE AN INDEPENDENT VIOLATION
OF THE ORDER, AS DISTINGUISHED FROM A DERIVATIVE VIOLATION OF SECTION
19(A)(6). /1/
SECTION 19(D) OF THE ORIGINAL EXECUTIVE ORDER 11491, WHICH WAS
EFFECTIVE JANUARY 1, 1970, PROVIDED, IN PART:
WHEN THE ISSUE IN A COMPLAINT OF AN ALLEGED VIOLATION OF PARAGRAPH
(A)(1), (2), OR (4) OF
THIS SECTION (19) IS SUBJECT TO AN ESTABLISHED GRIEVANCE OR APPEALS
PROCEDURE, THAT PROCEDURE
IS THE EXCLUSIVE PROCEDURE FOR RESOLVING THE COMPLAINT.
UNDER THIS PROVISION, IT WAS THE VIEW OF THE ASSISTANT SECRETARY THAT
HE WAS PRECLUDED FROM FINDING AUTOMATICALLY A DERIVATIVE SECTION
19(A)(1) VIOLATION BASED ON A VIOLATION OF OTHER SUBSECTIONS OF SECTION
19(A) BECAUSE OF THE POSSIBILITY THAT AN ESTABLISHED GRIEVANCE PROCEDURE
EXISTED WHICH WOULD REQUIRE DISMISSAL OF ANY SECTION 19(A)(1)
ALLEGATION. HOWEVER, EXECUTIVE ORDER 11616, WHICH AMENDED EXECUTIVE
ORDER 11491, EFFECTIVE NOVEMBER 24, 1971, MODIFIED THE PERTINENT PARTS
OF SECTION 19(D) TO READ AS FOLLOWS:
ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES.
THUS, UNDER EXECUTIVE ORDER 11491, AS AMENDED, WHEN AN AGGRIEVED
PARTY HAS ELECTED TO PROCESS HIS ACTION UNDER THE UNFAIR LABOR PRACTICE
PROCEDURES OF THE ORDER, A DERIVATIVE VIOLATION OF SECTION 19(A)(1) OF
THE ORDER MAY BE FOUND, WHEN ALLEGED IN CONNECTION WITH CONDUCT WHICH IS
DETERMINED TO BE VIOLATIVE OF OTHER SUBSECTIONS OF SECTION 19(A), EVEN
THOUGH A N ESTABLISHED GRIEVANCE PROCEDURE IS AVAILABLE. UNDER THESE
CIRCUMSTANCES, I FIND THAT NO BAR EXISTS TO FINDING A DERIVATIVE
VIOLATION OF SECTION 19(A)(1) OF THE ORDER IN SITUATIONS WHERE IT IS
CONCLUDED THAT SECTIONS 19(A)(2), (3), (4), (5), AND/OR (6) HAVE BEEN
VIOLATED. FURTHER, IN MY VIEW, A VIOLATION OF ANY OF THESE FOREGOING
SUBSECTIONS OF SECTION 19 (A) NECESSARILY TENDS TO INTERFERE WITH,
RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
THE ORDER AND, THEREFORE, ALSO IS A VIOLATION OF SECTION 19(A)(1). /2/
ACCORDINGLY, BASED ON THE FOREGOING CONSIDERATIONS, I FIND THAT, IN THE
INSTANT CASE, THE RESPONDENT'S IMPROPER FAILURE TO MEET AND CONFER WITH
THE COMPLAINANT CONSTITUTED A VIOLATION OF SECTION 19(A)(6) AND,
DERIVATIVELY, ALSO VIOLATED SECTION 19(A)(1) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE ARMY AND AIR FORCE
EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM, HAWAII REGIONAL EXCHANGE,
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO NOTIFY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
CONCERNING THE RECLASSIFICATION OF UNIT EMPLOYEES, AND TO AFFORD SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH RECLASSIFICATION
WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(B) ASSIGNING TO RECLASSIFIED EMPLOYEES WORK TASKS DIFFERENT THAN
THOSE ASSIGNABLE PRIOR TO SUCH RECLASSIFICATIONS, WITHOUT AFFORDING THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO MEET AND CONFER,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH
ASSIGNMENTS WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY
INTENDED RECLASSIFICATION OF UNIT EMPLOYEES AND, UPON REQUEST, AFFORD
SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH RECLASSIFICATION
WILL HAE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(B) POST AT ITS FACILITY AT PACIFIC EXCHANGE SYSTEM, HAWAII REGIONAL
EXCHANGE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
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
COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
NOVEMBER 26, 1974
/1/ IN THIS REGARD, THE CHIEF ADMINISTRATIVE LAW JUDGE CITED VETERANS
ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA, A/SLMR NO. 87.
/2/ THIS IS NOT TO SAY THAT SECTION 19(A)(1) MAY NOT BE VIOLATED
INDEPENDENTLY WITHOUT REGARD TO VIOLATIONS OF OTHER SUBSECTIONS OF
SECTION 19(A) OF THE ORDER.
WE WILL NOT FAIL TO NOTIFY THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITH RESPECT TO THE RECLASSIFICATION OF UNIT EMPLOYEES,
AND AFFORD SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH
RECLASSIFICATION WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY
SUCH ACTION.
WE WILL NOT ASSIGN TO RECLASSIFIED EMPLOYEES REPRESENTED BY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, WORK TASKS DIFFERENT THAN THOSE
ASSIGNABLE PRIOR TO SUCH RECLASSIFICATION, WITHOUT AFFORDING
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO MEET AND CONFER,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH
ASSIGNMENTS WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
WE WILL NOTIFY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY
INTENDED RECLASSIFICATION OF UNIT EMPLOYEES AND, UPON REQUEST, AFFORD
SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH RECLASSIFICATION
WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
DATED . . . BY
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR WHOSE ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
ARMY AND AIR FORCE EXCHANGE SERVICE
PACIFIC EXCHANGE SYSTEM
HAWAII REGIONAL EXCHANGE
AND
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCAL 1186
ROBERT E. EDWARDS, ASSISTANT GENERAL COUNSEL
ARMY AND AIR FORCE EXCHANGE SERVICE
9311 WALTON WALKER BOULEVARD
DALLAS, TEXAS 75222
BENJAMIN C. SIGAL, ESQUIRE
333 QUEEN STREET, SUITE 800
HONOLULU, HAWAII 96813
BEFORE: H. STEPHAN GORDON
CHIEF ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED, AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS, 29 C.F.R. PART 203.
THE AMENDED COMPLAINT HERE IN ISSUE WAS FILED BY LOCAL 1186 OF THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (REFERRED TO HEREINAFTER
AS THE UNION) ON OCTOBER 10, 1973, CHARGING THE HAWAII REGIONAL EXCHANGE
(HEREINAFTER REFERRED TO AS H.R.E. OR THE ACTIVITY) WITH INTERFERING
WITH THE EXERCISE BY UNIT EMPLOYEES OF PROTECTED RIGHTS AND FAILING AND
REFUSING TO CONSULT AND CONFER IN GOOD FAITH, THEREBY VIOLATING
SUBSECTIONS (1) AND (6) OF SECTION 19(A) OF THE EXECUTIVE ORDER.
A HEARING ON THE AMENDED COMPLAINT WAS HELD ON FEBRUARY 26, 1974, IN
HONOLULU, HAWAII. BOTH PARTIES WERE PRESENT AND REPRESENTED BY COUNSEL.
EACH WAS ALLOWED FULL OPPORTUNITY TO CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES AND ADDUCE RELEVANT EVIDENCE. POST HEARING BRIEFS WERE
RECEIVED FROM BOTH PARTIES AND HAVE BEEN CAREFULLY CONSIDERED.
ON THE BASIS OF THE ENTIRE RECORD IN THIS CASE AND MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS,
CONCLUSIONS AND RECOMMENDATION TO THE ASSISTANT SECRETARY.
THE ACTIVITY, HAWAII REGIONAL EXCHANGE, FUNCTIONS BASICALLY AS A
RETAIL ORGANIZATION, PROVIDING MERCHANDISE AND SERVICES TO MILITARY
PERSONNEL AND OTHER AUTHORIZED PATRONS AT VARIOUS INSTALLATIONS IN THE
STATE OF HAWAII. H.R.E. IS A SUBORDINATE ORGANIZATIONAL ELEMENT OF THE
PACIFIC EXCHANGE SYSTEM (PACEX) HEADQUARTERED IN HONOLULU, WHICH REPORTS
TO HEADQUARTERS, ARMY AND AIR FORCE EXCHANGE SERVICES IN DALLAS, TEXAS.
THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF ALL UNIT EMPLOYEES. A
NEGOTIATED AGREEMENT FIRST APPROVED SEPTEMBER 25, 1970, AND SUBSEQUENTLY
RENEWED GOVERNS LABOR-MANAGEMENT RELATIONS AT THE ACTIVITY. /1/
ORGANIZATIONALLY, H.R.E. IS DIVIDED INTO SIX BRANCHES. OF THESE,
ONLY THE ENGINEERING BRANCH IS INVOLVED IN THE PRESENT CONTROVERSY.
ENGINEERING, IN TURN, IS DIVIDED INTO TWO SECTIONS, ARCHITECTURE AND
ENGINEERING AND EQUIPMENT AND FACILITIES, BOTH OF WHICH ARE SUPERVISED
BY MR. PHILIP ROACH, CHIEF, ENGINEERING BRANCH. PRIOR TO THE
RECLASSIFICATION OF EMPLOYEES IN THE EQUIPMENT AND FACILITIES SECTION,
FROM WHICH ACTION THE PRESENT CONTROVERSY STEMS, THE TWENTY-FOUR WORKERS
THERE EMPLOYED WERE CLASSIFIED AS SKILLED LABORERS. EMPLOYEES WORKED
UNDER JOB TITLES AS REFRIGERATION AND AIR CONDITIONING MECHANICS,
ELECTRICIANS, CARPENTERS, PLUMBERS, AND PAINTERS, WITH FIVE EMPLOYEES
CARRYING THE GENERALIST JOB TITLE OF MAINTENANCE WORKER IN LOWER GRADE
POSITIONS.
THE EVIDENCE REGARDING THE EVENTS LEADING TO THE FILING OF THE
PRESENT COMPLAINT IS WITHOUT SERIOUS CONFLICT. MR. BARNEY MIYAJI, A
CHIEF UNION STEWARD, MR. HENRY SHINOTSUKA, HIS ALTERNATE AND MR. RICHARD
ASAO, A UNION STEWARD, WERE CALLED TO MR. ROACH'S OFFICE DURING THE
MORNING OF JUNE 7, 1973. THEY WERE SHOWN A DOCUMENT ENTITLED "MANPOWER
AUTHORIZATION VOUCHER" /2/ AND WERE INFORMED BY MR. ROACH THAT THE JOB
TITLES OF EMPLOYEES IN THE SECTION HAD BEEN CHANGED FROM CRAFT
DESIGNATIONS, E.G. "ELECTRICIAN," "PLUMBER," ETC., TO "MAINTENANCE
WORKER," AT SEVERAL GRADE LEVELS. MR. ROACH EXPLAINED THAT THERE WOULD
BE AN INCREASE OF ONE GRADE 7 POSITION IN THE SHOP, AND THAT UNDER THE
NEW CLASSIFICATION SYSTEM THERE WOULD BE GREATER OPPORTUNITY FOR
PROMOTION.
THERE WAS NO DISCUSSION AS TO HOW THE CHANGE WOULD AFFECT THE
EMPLOYEE CONTINGENT AS THEN CONSTITUTED. MR. MIYAJI ASKED MR. ROACH FOR
THE JOB DESCRIPTIONS FOR THE NEW MAINTENANCE WORKER CLASSIFICATIONS AND
WAS INFORMED THAT COPIES WOULD BE SUPPLIED TO HIM THE FOLLOWING DAY.
MR. MIYAJI NOTED THAT IF EACH OF THE EMPLOYEES UNDER THE NEW
CLASSIFICATION WAS GOING TO BE EXPECTED TO PERFORM ALL TYPES OF
SPECIALIZED WORK, A SAFETY HAZARD WOULD BE PRESENTED. HE OBSERVED THAT,
FOR EXAMPLE, AN EMPLOYEE WHO HAD WORKED AS A CARPENTER UNDER THE OLD
CLASSIFICATION SCHEME WAS UNPREPARED AND UNTRAINED FOR ASSIGNMENT TO
POTENTIALLY DANGEROUS ELECTRICAL WORK. IN RESPONSE MR. ROACH QUERIED
WHETHER THE UNION COULD PROVIDE THE TRAINING NECESSARY TO PREPARE
EMPLOYEES ADEQUATELY FOR THE WIDE VARIETY OF WORK ASSIGNMENTS WHICH THE
NEW CLASSIFICATION WOULD ALLOW. WHEN MR. MIYAJI RESPONDED THAT THE
UNION DID NOT HAVE THE RESOURCES TO PROVIDE THE NECESSARY TRAINING THE
SUBJECT WAS DROPPED.
MIYAJI THEN ASKED ROACH WHEN THE NEW CLASSIFICATIONS WERE TO BE PUT
INTO FORCE AND WAS INFORMED THAT THEY WERE EFFECTIVE "AS OF RIGHT NOW."
THE MANPOWER AUTHORIZATION VOUCHER SHOWN TO THE UNION REPRESENTATIVES
INDICATED IN THE SPACE PROVIDED THAT THE EFFECTIVE DATE OF THE
RECLASSIFICATION WAS MAY 19, 1973. /3/ THE DOCUMENT SHOWED THE
SIGNATURE OF GEORGE V. DODSON, EXECUTIVE OF H.R.E. LITTLE ELSE OF
SUBSTANCE WAS DISCUSSED AT THE JUNE 7TH MEETING. AS THE UNION
REPRESENTATIVES PREPARED TO LEAVE, MR. MIYAJI TURNED TO MR. ROACH AND
SAID "I AM GOING TO CONTEST THIS," REFERRING TO THE RECLASSIFICATION, TO
WHICH MR. ROACH REPLIED, "BE MY GUEST."
MR. MIYAJI TESTIFIED THAT PRIOR TO JUNE 7, 1973, HE WORKED UNDER THE
JOB TITLE OF "ELECTRICIAN" AND ALTHOUGH HE, LIKE THE OTHER EMPLOYEES IN
THE SECTION, WAS NOT LICENSED IN HIS JOB SPECIALTY, HE POSSESSED
SUFFICIENT EXPERTISE TO PERFORM ADEQUATELY THE DUTIES REQUIRED OF THE
POSITION. HE TESTIFIED THAT ALTHOUGH HE DID A VARIETY OF DIFFERENT
TYPES OF WORK, 95% OF HIS ASSIGNMENTS WERE ELECTRICAL. ALL OF THE UNION
WITNESSES TESTIFIED THAT SINCE RECLASSIFICATION THEIR WORK ROUTINE HAS
NOT CHANGED AND THAT ALTHOUGH THE JOB DESCRIPTIONS FOR THE NEW
MAINTENANCE WORKER CLASSIFICATIONS WOULD ALLOW THEIR ASSIGNMENT TO ALL
TYPES OF MAINTENANCE WORK, IN PRACTICE THIS HAS NOT OCCURRED.
THE DAY FOLLOWING THE JUNE 7 MEETING MR. ROACH SUPPLIED MR. MIYAJI
WITH COPIES OF THE NEW JOB DESCRIPTIONS AS PROMISED. THERE WAS NO
FURTHER COMMUNICATION BETWEEN THE PARTIES ON THE RECLASSIFICATION ISSUE
UNTIL JUNE 22, 1973, WHEN BY LETTER TO LT. COLONEL JOHN C. BROWN,
COMMANDER H.R.E., JAMES S. YOSHIDA, ASSISTANT BUSINESS MANAGER OF THE
UNION, ACCUSED THE ACTIVITY OF SEVERAL VIOLATIONS OF THE NEGOTIATED
AGREEMENT, INCLUDING ONE CHARGE BASED ON THE INSTITUTION OF THE
RECLASSIFICATION IN THE EQUIPMENT AND FACILITIES SECTION WITHOUT PRIOR
CONSULTATION WITH THE UNION. /4/
THE RESPONSE OF COLONEL BROWN, /5/ DATED JULY 20, 1973, STATED THE
POSITION OF THE ACTIVITY REGARDING THE CONSULTATION ISSUE, WHICH, IN
SUBSTANTIAL FORM REMAINED THE POSITION OF THE ACTIVITY AT THE HEARING.
COLONEL BROWN STATED THAT UNDER RELEVANT SECTIONS OF THE EXECUTIVE ORDER
THE ACTIVITY WAS UNDER NO OBLIGATION TO CONSULT, CONFER OR NEGOTIATE ON
THE MANNER IN WHICH IT ORGANIZED ITS WORK FORCE, INCLUDING THE
CLASSIFICATION OF EMPLOYEES. BROWN WENT ON TO STATE THAT EVEN IF A DUTY
TO CONSULT ON THE SUBJECT WERE TO BE FOUND IN THE ORDER, THE ACTIVITY
HAD MET ITS OBLIGATION AT THE JUNE 7 MEETING. HE OBSERVED, CONTRARY TO
WHAT THE UNION REPRESENTATIVES HAD BEEN TOLD BY MR. ROACH, THAT THE
RECLASSIFICATION WAS NOT GIVEN FINAL APPROVAL UNTIL JUNE 14, 1973, WITH
AN EFFECTIVE DATE OF JUNE 15, 1973. THUS, IN THE ACTIVITY'S VIEW, THERE
WAS SUFFICIENT TIME ALLOWED THE UNION TO MAKE KNOWN ITS COMMENTS ON THE
SUBJECT, AND SUFFICIENT OPPORTUNITY FOR THE UNION TO REQUEST FURTHER
CONSULTATION.
THE ACTIVITY INTRODUCED EVIDENCE AT THE HEARING RELATIVE TO ITS
PROCEDURES FOR THE APPROVAL OF JOB CLASSIFICATION CHANGES. REGARDING
THE RECLASSIFICATION OF EMPLOYEES OF THE EQUIPMENT AND FACILITIES
SECTION, MR. ROACH TESTIFIED THAT IT WAS UPON HIS REQUEST THAT THE
PROCEDURES WERE INVOKED. IT WAS HIS VIEW THAT THE CHANGE TO THE
MAINTENANCE WORKER CLASSIFICATIONS AND JOB DESCRIPTIONS WOULD MORE
ACCURATELY REFLECT THE WORK ACTUALLY PERFORMED BY EMPLOYEES OF THE
SECTION AND WOULD ALLOW FOR GREATER FLEXIBILITY IN THE ASSIGNMENT OF JOB
TASKS TO THE END THAT THE MISSION OF THE SECTION WOULD BE BETTER SERVED.
MR. ROACH'S REQUEST FOR THE CLASSIFICATION CHANGE WAS DIRECTED FIRST TO
THE H.R.E. PERSONNEL OFFICE. VARIOUS COMMUNICATIONS PASSED BETWEEN MR.
ROACH AND RESPONSIBLE PERSONNEL OFFICIALS ON THE SUBJECT AND ON APRIL
16, 1973, A MEETING WAS HELD IN THE OFFICE OF MR. GEORGE HIEL, PACEX
POSITION CLASSIFICATION SPECIALIST, TO DISCUSS THE CHANGE. AT NO TIME
WAS THE UNION INFORMED OF THE ACTION UNDER CONSIDERATION OR INVITED TO
MAKE ITS VIEWS KNOWN.
SOMETIME AFTER THE APRIL MEETING THE H.R.E. PERSONNEL OFFICE GAVE ITS
APPROVAL TO THE CLASSIFICATION CHANGE RECOMMENDED BY MR. ROACH AND THE
MANPOWER AUTHORIZATION VOUCHER PREPARED TO INSTITUTE THE CHANGE WAS
SIGNED BY MR. DODSON INDICATING APPROVAL AT THE H.R.E. LEVEL. THE
CHANGES APPROVED BY MR. DODSON WERE AS REFLECTED ON THE ORIGINAL
VOUCHER, OF WHICH CLAIMANT'S EXHIBIT NO. 1 IS A COPY. THE VOUCHER ALSO
CONTAINED CERTAIN OTHER CLASSIFICATION CHANGES NOT IN ISSUE. GIVEN THE
NATURE OF THE MAINTENANCE WORKER CLASSIFICATIONS, APPROVAL BY MR.
DODSON WAS ONLY AN INTERMEDIATE STEP IN THE AUTHORIZATION PROCEDURE
MANDATED BY CONTROLLING ACTIVITY REGULATIONS.
THE "MAINTENANCE WORKER" JOB CLASSIFICATION IS NOT FOUND IN THE LIST
OF "STANDARD" JOBS CONTAINED IN ARMY AND AIR FORCE MANUAL 2-4. AS A
"NON-STANDARD" JOB, APPROVAL FOR ITS CLASSIFICATION COULD BE APPROVED BY
MR. DODSON AS H.R.E. EXECUTIVE. WHEN, AS WAS THE CASE HERE,
NON-STANDARD AND STANDARD CLASSIFICATIONS WERE COMBINED IN A SINGLE
"JOB-PACKAGE" PACEX RETAINED FINAL APPROVAL AUTHORITY OVER ALL
CLASSIFICATIONS SO SUBMITTED, INCLUDING THE STANDARD JOBS.
THE ORIGINAL MANPOWER AUTHORIZATION VOUCHER SIGNED BY MR. DODSON, IN
DUE COURSE, WAS SUBMITTED TO MR. HEIL AT PACEX. IN THE COURSE OF
REVIEWING THE RECLASSIFICATION CERTAIN CHANGES WERE INCORPORATED IN THE
"PACKAGE" SUBMITTED BY H.R.E. THESE CHANGES (NOT HERE RELEVANT) WERE
MADE ON THE ORIGINAL VOUCHER BY INTERLINIATION. THE EFFECTIVE DATE
SHOWN AS MAY 19, 1973, ALSO WAS CHANGED ON THE FIRST PAGE OF THE
TWO-PAGE VOUCHER TO READ JUNE 12, 1973. /6/ AS INDICATED ABOVE, THE
ALTERED VOUCHER WAS NOT GIVEN FINAL OFFICIAL APPROVAL UNTIL JUNE 14,
1973, WITH AN EFFECTIVE DATE OF JUNE 15, 1973.
FROM THE EVIDENCE ADDUCED IT IS OBVIOUS THAT THE THREE UNION
REPRESENTATIVES LEFT THE JUNE 7 MEETING WITH MR. ROACH WITH THE BELIEF
THAT RECLASSIFICATION WAS AN ACCOMPLISHED FACT AND THAT NO OPPORTUNITY
EXISTED FOR THE UNION TO HAVE ANY INPUT INTO THE DECISION ITSELF OR ITS
IMPLEMENTATION. I CONCLUDE FROM THE EVIDENCE THAT THIS BELIEF WAS
COMPLETELY REASONABLE AND THAT, INDEED, NO OTHER INFERENCE COULD BE
DRAWN FROM THE ACTIONS OF MR. ROACH, AND THE CONTENTS OF THE MANPOWER
AUTHORIZATION VOUCHER, THE EFFECTIVE DATE OF WHICH WAS CLEARLY SHOWN
THEREON. THE FACT THAT FINAL APPROVAL OF THE RECLASSIFICATION WAS NOT
GIVEN BY PACEX UNTIL JUNE 14, 1973, IS NOT RELEVANT TO THE LIMITED ISSUE
PRESENTED HERE.
SECTION 11(A) OF THE EXECUTIVE ORDER SETS OUT THE SCOPE OF THE
ACTIVITY'S DUTY TO "CONFER, CONSULT, OR NEGOTIATE," ENFORCED IN SECTION
19(A)(6). SECTION 11(B) CONTAINS THE PROVISO THAT,
. . . THE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH
WITH RESPECT TO THE
MISSION OF AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE NUMBER OF
EMPLOYEES; AND THE NUMBERS,
TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK PROJECT
OR TOUR OF DUTY; THE TECHNOLOGY OF PERFORMING ITS WORK; OR ITS
INTERNAL SECURITY PRACTICES.
THE RECLASSIFICATION OF EMPLOYEES IN THE EQUIPMENT AND FACILITIES
SECTION, AT ISSUE IN THE INSTANT CASE, IS CLEARLY EXCLUDED BY THE ABOVE
QUOTED LANGUAGE FROM THE SUBJECTS UPON WHICH THE ACTIVITY WOULD BE
OBLIGATED TO CONFER. THE UNION MAKES NO ARGUMENT TO THE CONTRARY. THE
ABOVE LANGUAGE IS NOT DISPOSITIVE OF THE COMPLAINT FILED HEREIN,
HOWEVER, FOR SECTION 11(B) GOES ON TO PROVIDE THAT,
THIS DOES NOT PRECLUDE THE PARTIES FROM NEGOTIATING AGREEMENTS
PROVIDING APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT OF
REALIGNMENT OF WORK FORCES OR
TECHNOLOGICAL CHANGE.
IT MAY THUS BE SEEN THAT WHERE, AS HERE, AN AGENCY IS EXCUSED FROM
CONSULTING OR CONFERRING REGARDING A PROPOSED ACTION IT MAY STILL BE
REQUIRED TO GIVE FOREWARNING TO THE EXCLUSIVE REPRESENTATIVE AND, UPON
REQUEST, CONSULT AND CONFER REGARDING THE IMPACT OF THE PROPOSED ACTION
ON THE EMPLOYEES AFFECTED. THE DUTY TO BARGAIN REGARDING IMPACT HAS
BEEN RECOGNIZED BY THE ASSISTANT SECRETARY AND THE FEDERAL LABOR
RELATIONS COUNCIL IN SEVERAL CASES, SEE FOR EXAMPLE IMMIGRATION AND
NATURALIZATION SERVICE, FLRC NO. 70A-10 (APRIL 15, 1971), PLUM ISLAND
ANIMAL DISEASE LABORATORY, FLRC NO. 71A-11 (JULY 9, 1971), GRIFFISS AIR
FORCE BASE, FLRC NO. 71A-30 (APRIL 19, 1973), NORTON AIR FORCE BASE,
A/SLMR NO. 261 (APRIL 30, 1973), U.S. DEPARTMENT OF INTERIOR, BUREAU OF
INDIAN AFFAIRS, A/SLMR NO. 341 (JANUARY 9, 1974), NEW MEXICO AIR
NATIONAL GUARD, A/SLMR NO. 362 (FEBRUARY 28, 1974).
THAT THE RECLASSIFICATION ACTION FORMALLY TAKEN ON JUNE 14, 1973, HAD
AN IMPACT ON EMPLOYEES IN THE EQUIPMENT AND FACILITIES SECTION IS CLEAR
BEYOND QUESTION. THE CHANGE WAS SOUGHT AND EFFECTED BY THE ACTIVITY AT
LEAST IN PART TO MAKE IT POSSIBLE TO HAVE EMPLOYEES, WHO UNDER THEIR
FORMER CLASSIFICATIONS AND JOB DESCRIPTIONS WERE ASSIGNABLE TO ONLY A
LIMITED TYPE OF WORK, AVAILABLE FOR ASSIGNMENT TO THE VARIETY OF
MAINTENANCE TASKS IT WAS THE DUTY OF THE SECTION TO PERFORM. /7/ AS MR.
MIYAJI OBSERVED AT THE JUNE 7 MEETING WHEN FIRST INFORMED OF THE
RECLASSIFICATION AND AS RECOGNIZED BY MR. HEIL IN TESTIMONY, THE CHANGE
IN THE EMPLOYEE'S POSITION DESCRIPTIONS PRESENTED A POTENTIAL SAFETY
HAZARD IF ADEQUATE TRAINING WAS NOT PROVIDED. FOR THIS REASON ANY
PROPOSAL OF THE UNION DIRECTED TO THE AMELIORATION OF THE POTENTIAL
HAZARD WOULD CLEARLY BE NEGOTIABLE, GRIFFISS AIR FORCE BASE, SUPRA.
IN ORDER THAT THE UNION BE GIVEN A MEANINGFUL OPPORTUNITY TO CONSULT
AND CONFER ON IMPACT ISSUES, OF NECESSITY, IT WOULD HAVE TO BE INFORMED
OF THE ACTION SUFFICIENTLY IN ADVANCE OF ITS IMPLEMENTATION TO ALLOW FOR
THE PREPARATION OF PROPOSALS AND THE GOOD FAITH EXCHANGE OF VIEWS
CONTEMPLATED BY THE ORDER. IF THE ACTIVITY IS FOUND TO HAVE FAILED TO
HAVE AFFORDED THE UNION A MEANINGFUL OPPORTUNITY TO CONFER REGARDING THE
IMPACT OF RECLASSIFICATION ON THE EMPLOYMENT RELATIONSHIP, ESPECIALLY IN
SO VITAL AN AREA AS SAFETY AND HEALTH, THEN A VIOLATION OF SECTION
19(A)(6) MUST BE FOUND.
AS FOUND ABOVE, THE EVIDENCE DEMONSTRATES THAT THE UNION, THROUGH
THREE OF ITS STEWARD REPRESENTATIVES, WAS INFORMED ON JUNE 7, 1973, THAT
EFFECTIVE THAT DATE EMPLOYEES IN THE EQUIPMENT AND FACILITIES SECTION
WERE TO HAVE THEIR JOB CLASSIFICATIONS AND POSITION DESCRIPTIONS
CHANGED. THEY WERE SHOWN A MANPOWER AUTHORIZATION VOUCHER WITH THE
IMPRIMATUR OF THE ACTIVITY'S EXECUTIVE WHICH PLAINLY AUTHORIZED THE
RECLASSIFICATION EFFECTIVE MAY 19, 1973. THE EVIDENCE FURTHER PROVES
THAT CONTRARY TO THE REPRESENTATIONS MADE TO THE UNION STEWARDS ON JUNE
7, THE RECLASSIFICATION WAS NOT GIVEN THE FINAL APPROVAL FROM PACEX
NECESSARY FOR IMPLEMENTATION UNTIL JUNE 14, WITH AN EFFECTIVE DATE OF
JUNE 15.
THE ACTIVITY ARGUES THAT BETWEEN JUNE 7 WHEN THE UNION WAS INFORMED
OF THE RECLASSIFICATION AND JUNE 15 WHEN THE CHANGE EAS OFFICIALLY
INSTITUTED THE UNION HAD THE OPPORTUNITY TO REQUEST CONSULTATION ON
NEGOTIABLE IMPACT ISSUES. NO SUCH OVERTURES HAVING BEEN RECEIVED FROM
THE UNION, THE ACTIVITY CONTENDS IT CANNOT BE FOUND IN VIOLATION OF THE
DUTY TO BARGAIN IN GOOD FAITH. I CANNOT SO CONCLUDE.
ON JUNE 7, THE UNION WAS PRESENTED WITH THE ACCOMPLISHED FACT OF
RECLASSIFICATION. ITS VIEWS WERE NOT SOUGHT THEN AS THEY HAD NOT BEEN
SOUGHT IN THE SEVERAL MONTHS PRECEDING WHILE THE CHANGE WAS BEING
DISCUSSED BOTH WITHIN THE ACTIVITY AND WITH PERSONNEL OFFICIALS IN
PACEX. AS FAR AS THE UNION WAS CONCERNED THERE WAS NO OPPORTUNITY TO
DISCUSS THE IMPACT OF THE RECLASSIFICATION PRIOR TO ITS IMPLEMENTATION.
/8/ THAT THE CHANGE WAS NOT GIVEN FINAL, OFFICIAL CONFIRMATION UNTIL
JUNE 14 IS OF NO MOMENT. TO HOLD AS THE ACTIVITY URGES WOULD BE TO
IMPOSE UPON THE UNION AN OBLIGATION TO REQUEST CONSULTATION REGARDING AN
ACTIVITY ACTION WHICH IT REASONABLY BELIEVED WAS ALREADY INSTITUTED.
THIS, IN EFFECT, WOULD REQUIRE THE UNION TO PERFORM WHAT, UNDER THE
CIRCUMSTANCES, WOULD BE ESSENTIALLY A FUTILE ACT.
I THEREFORE CONCLUDE THAT BY RECLASSIFYING EMPLOYEES IN THE EQUIPMENT
AND FACILITIES SECTION WITHOUT CONFERRING, CONSULTING OR NEGOTIATING
WITH THE UNION REGARDING THE IMPACT OF SUCH ACTION THE ACTIVITY VIOLATED
SECTION 19(A)(6) OF THE ORDER.
I ALSO CONCLUDE THAT THIS SAME CONDUCT OF THE ACTIVITY INTERFERED
WITH THE SECTION 1(A) RIGHTS OF THE EMPLOYEES AFFECTED, IN VIOLATION OF
SECTION 19(A)(1). THIS FINDING IS MADE AFTER AN INDEPENDENT EVALUATION
OF THE EVIDENCE AND IS NOT BASED ON ANY THEORY THAT A 19(A)(1) VIOLATION
IS A DERIVATIVE OF A 19(A)(6) VIOLATION, SEE VETERANS ADMINISTRATION
HOSPITAL, A/SLMR NO. 87 (AUGUST 3, 1971). SECTION 1(A) OF THE ORDER
GRANTS TO EACH EMPLOYEE THE RIGHT TO FORM, JOIN AND ASSIST A LABOR
ORGANIZATION AND SECTION 19(A)(1) PROHIBITS AN AGENCY FROM INTERFERING
WITH THAT RIGHT. WHERE, AS HERE, ACTIVITY MANAGEMENT TAKES A PRIVILEGED
ACTION WITHOUT MEETING ITS OBLIGATION TO CONFER AND CONSULT REGARDING
THE IMPACT AND POTENTIALLY ADVERSE EFFECTS OF THAT ACTION, THE EXCLUSIVE
REPRESENTATIVE IS UNDERCUT AND DISPARAGED SO AS TO AFFECT SECTION 1
RIGHTS OF EMPLOYEES IN VIOLATION OF SECTION 19(A)(1).
UNDER THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW AND
PURSUANT TO SECTION 203.22(A) OF THE RULES AND REGULATIONS, 29 C.F.R.
203.22(A), I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
ORDER DESIGNED TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE RULES AND REGULATIONS, 29 C.F.R. 203.25(B), THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT HAWAII REGIONAL EXCHANGE, PACIFIC EXCHANGE SYSTEM, ARMY AND
AIR FORCE EXCHANGE SERVICE SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO CONSULT, CONFER, OR NEGOTIATE WITH INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 1186, WITH REGARD TO THE IMPACT ON AFFECTED EMPLOYEES
OF CHANGES IN JOB
CLASSIFICATIONS AND POSITION DESCRIPTIONS.
(B) ASSIGNING TO RECLASSIFIED EMPLOYEES WORK TASKS DIFFERENT THAN
THOSE ASSIGNABLE PRIOR TO
RECLASSIFICATION, PENDING FULL CONSULTATION WITH THE EXCLUSIVE
REPRESENTATIVE ON BARGAINABLE
ISSUES.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND
PROVISIONS OF THE EXCLUSIVE ORDER:
(A) UPON THE REQUEST OF THE EXCLUSIVE REPRESENTATIVE, MEET AND
CONFER, CONSULT, OR
NEGOTIATE REGARDING THE IMPACT OF RECLASSIFICATION ON EMPLOYEES
INCLUDING, BUT NOT LIMITED TO,
SAFETY AND HEALTH ISSUES AND TRAINING.
(B) POST AT ITS FACILITIES AT THE HAWAII REGIONAL EXCHANGE, HONOLULU,
HAWAII COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE
HAWAII REGIONAL EXCHANGE EXECUTIVE AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR SIXTY (60)
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE EXECUTIVE SHALL TAKE
REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 202.26 OF THE RULES AND REGULATIONS, 29
C.F.R. 202.26, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN TWENTY (20) DAYS OF THE DATE
OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: SEPTEMBER 6, 1974
WASHINGTON, D.C.
WE WILL NOT REFUSE TO CONFER, CONSULT, OR NEGOTIATE WITH THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1186, REGARDING
THE IMPACT OF RECLASSIFICATION ON AFFECTED EMPLOYEES.
WE WILL NOT ASSIGN WORK TASKS TO RECLASSIFIED EMPLOYEES DIFFERENT
FROM THOSE ASSIGNABLE PRIOR TO RECLASSIFICATION PENDING FULL
CONSULTATION WITH THE EXCLUSIVE REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY SECTION
1(A) OF THE EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST, MEET WITH THE EXCLUSIVE REPRESENTATIVE AND
CONFER, CONSULT, OR NEGOTIATE REGARDING THE IMPACT OF RECLASSIFICATION
OF EMPLOYEES, INCLUDING, BUT NOT LIMITED TO, HEALTH AND SAFETY ISSUES
AND TRAINING.
DATED:
/1/ JOINT EXHIBIT NO. 1, APPENDIX B.
/2/ COMPLAINANT'S EXHIBIT NO. 1.
/3/ MR. KENNETH BASS, CHIEF OF PERSONNEL FOR PACEX HEADQUARTERS,
TESTIFIED THAT IT WAS AN "ADMINISTRATIVE ERROR" TO HAVE INDICATED AN
EFFECTIVE DATE OF MAY 19, 1973, ON THE VOUCHER. THAT DATE WAS CHOSEN
BECAUSE IT WAS THE BEGINNING OF A PAYROLL PERIOD AND IT WAS ANTICIPATED
THAT FINAL APPROVAL FOR THE CHANGE WOULD BE SECURED BY THEN.
/4/ COMPLAINANT'S EXHIBIT NO. 3.
/5/ COMPLAINANT'S EXHIBIT NO. 4.
/6/ RESPONDENT'S EXHIBITS NOS. 1B AND 1C.
/7/ THAT THE DUTIES OF EMPLOYEES HAVE NOT IN FACT BEEN CHANGED SINCE
RECLASSIFICATION IS NOT MATERIAL TO THE INSTANT PROCEEDING. WITH THE
NEW POSITION DESCRIPTIONS PRESENTLY IN EFFECT THE POSSIBILITY THAT
EMPLOYEES WILL BE ASSIGNED TO WORK FOR WHICH THEY ARE UNTRAINED OR
UNDERTRAINED EXISTS, WITH ATTENDANT SAFETY HAZARDS.
/8/ IN THIS CONNECTION SEE THE DECISION OF ADMINISTRATIVE LAW JUDGE
FRANCIS E. DOWD IN ANAHEIM POST OFFICE, AFFIRMED AND ADOPTED BY THE
ASSISTANT SECRETARY IN A/SLMR NO. 324 (NOVEMBER 16, 1973).
4 A/SLMR 453; P. 783; CASE NO. 62-3711(CA); NOVEMBER 5, 1974.
IOWA STATE AGRICULTURAL STABILIZATION
AND CONSERVATION SERVICE OFFICE,
DEPARTMENT OF AGRICULTURE
A/SLMR NO. 453
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 823 (COMPLAINANT),
AGAINST THE IOWA STATE AGRICULTURAL STABILIZATION AND CONSERVATION
SERVICE OFFICE, DEPARTMENT OF AGRICULTURE (RESPONDENT). THE COMPLAINANT
ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER BY INSTITUTING A REDUCTION IN FORCE (RIF) AMONG THE
RESPONDENT'S EMPLOYEES WITHOUT PRIOR NOTICE TO, OR CONSULTATION WITH,
THE COMPLAINANT ALTHOUGH THE LATTER WAS THE RECOGNIZED EXCLUSIVE
REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES.
IN APRIL 1973, THE AGRICULTURAL STABILIZATION AND CONSERVATION
SERVICE (ASCS) OF THE DEPARTMENT OF AGRICULTURE, INSTITUTED A RIF IN ITS
VARIOUS STATE OFFICES, INCLUDING THE RESPONDENT'S, BECAUSE OF AN
IMPOUNDMENT OF FUNDS. ONE OF THE DIVISIONS OF THE ASCS IS HEADED BY THE
DEPUTY ADMINISTRATOR FOR STATE AND COUNTY OPERATIONS (DASCO) AND IS
LOCATED IN WASHINGTON, D.C. THE DASCO HAS SEVERAL REGIONS AND THE
RESPONDENT, THE IOWA STATE OFFICE, IS ONE OF THE STATE OFFICES INCLUDED
IN DASCO'S MIDWEST REGION. UNDER THE DEPUTY ADMINISTRATOR FOR
MANAGEMENT OF THE ASCS IS THE MANAGEMENT FIELD OFFICE (MFO) WHICH IS
LOCATED IN KANSAS CITY, MISSOURI AND WHICH SERVES AS THE PERSONNEL
OFFICE FOR THE 50 STATE OFFICES OF THE ASCS.
AS A RESULT OF THE IMPOUNDMENT OF FUNDS IN DECEMBER 1972, IT WAS
GENERALLY UNDERSTOOD BY EMPLOYEES OF THE ASCS THAT THERE WOULD BE A RIF
IN THE STATE OFFICES. HOWEVER, THE SPECIFICS OF SUCH RIF WERE NOT
KNOWN. IN FEBRUARY 1973, THE ASCS DIRECTED THE MFO TO PREPARE FOR THE
RIF ACTION IN THE VARIOUS STATE OFFICES. EARLY IN APRIL 1973, THE DASCO
DECIDED HOW MANY POSITIONS WERE TO BE ABOLISHED IN EACH STATE OFFICE,
INCLUDING THE RESPONDENT'S, EFFECTIVE AT THE END OF THE FISCAL YEAR AND
DIRECTED THE MFO TO DETERMINE WHICH PERSONS WERE TO BE SEPARATED OR
RETIRED AS THE RESULT OF THE PROJECTED ABOLISHMENT OF THESE POSITIONS.
ACCORDINGLY, THE MFO IN KANSAS CITY DETERMINED IN APRIL 1973, WHICH
EMPLOYEES IN VARIOUS STATE OFFICES, INCLUDING THE RESPONDENT'S, WERE TO
BE SEPARATED OR TRANSFERRED PURSUANT TO THE RIF. DURING THIS PERIOD,
THE RESPONDENT WAS NOT CONSULTED BY EITHER THE DASCO OR THE MFO WITH
RESPECT TO THE RIF ACTION, OR WITH RESPECT TO ANY OF THE PLANS WHICH HAD
BEEN FORMULATED.
ON APRIL 20, 1973, THE MFO PREPARED RIF NOTICES FOR APPROXIMATELY
EIGHT EMPLOYEES IN THE RESPONDENT'S OFFICE, FOUR OF WHOM WERE TO BE
TRANSFERRED AND FOUR TO BE TERMINATED. ON APRIL 25, 1973, A MEETING OF
THE SEVEN STATE EXECUTIVE DIRECTORS OF THE MIDWEST REGION WAS HELD IN
WASHINGTON, D.C. AT THAT TIME, THE RESPONDENT'S DIRECTOR WAS TOLD THAT
A RIF IN HIS OFFICE WOULD TAKE PLACE AND HE WAS GIVEN THE RIF NOTICES TO
DELIVER TO NAMED EMPLOYEES. PRIOR THERETO, HE HAD NO KNOWLEDGE OR
INFORMATION CONCERNING THE NUMBER OF POSITIONS TO BE ABOLISHED IN HIS
OFFICE, THEIR IDENTITY, NOR THE EMPLOYEES TO BE AFFECTED. IMMEDIATELY
UPON LEARNING OF THE RIF ACTION, THE RESPONDENT'S DIRECTOR GAVE HIS
OFFICE INSTRUCTIONS THAT THE COMPLAINANT SHOULD BE ADVISED OF THE RIF
AND STATED THAT HE WOULD BE IN HIS OFFICE THE NEXT MORNING WITH THE
DETAILS. THE FOLLOWING MORNING, HE RETURNED TO HIS OFFICE AND
PERSONALLY ADVISED COMPLAINANT'S PRESIDENT OF THE RIF, AND ALSO SERVED
THE RIF NOTICES ON THE INDIVIDUALS INVOLVED. THE EVIDENCE INDICATES
THAT THE EMPLOYEES INVOLVED RECEIVED MORE THAN 60 DAYS NOTICE BEFORE THE
RIF WAS TO BE EFFECTIVE.
ON MAY 3, 1973, THE COMPLAINANT REQUESTED CERTAIN RIF INFORMATION
WHICH WAS FURNISHED THAT DAY. ON MAY 7, MORE INFORMATION WAS REQUESTED
AND DELIVERED ON MAY 14, AND ON MAY 24, A MEETING WAS HELD BETWEEN BOTH
PARTIES, ARRANGED BY THE COMPLAINANT'S NATIONAL OFFICE, AND ATTENDED BY
DASCO AND MFO OFFICIALS WHICH LISTED ABOUT FIVE HOURS AND IN WHICH THE
RAMIFICATIONS OF THE RIF WERE DISCUSSED. ON JUNE 5, ANOTHER MEETING WAS
HELD INVOLVING THE RESPONDENT'S DIRECTOR AND THE COMPLAINANT'S PAST AND
PRESENT PRESIDENTS. THE RECORD INDICATES THAT FROM THE TIME THE RIF
ACTION WAS ANNOUNCED UNTIL JUN E 30, ITS EFFECTIVE DATE, THE
RESPONDENT'S DIRECTOR AT NO TIME REFUSED TO DISCUSS THE RIF WITH
REPRESENTATIVES OF THE COMPLAINANT.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. IN THIS CONNECTION, HE NOTED THAT THE
RESPONDENT PLAYED NO PART IN THE DECISION TO HAVE A RIF, THE
DETERMINATION OF THE NUMBER OF POSITIONS TO BE ELIMINATED, NOR THE
FORMULATION OF THE PLAN TO EFFECTUATE THE RIF; THAT SUCH AUTHORITY AND
DECISION-MAKING EMANATED FROM THE ASCS AND ITS SUBORDINATE OFFICES,
DASCO AND MFO; THAT WHEN THE RESPONDENT'S DIRECTOR WAS NOTIFIED OF THE
RIF HE PROMPTLY GAVE HIS OFFICE INSTRUCTIONS THAT THE COMPLAINANT WAS TO
BE NOTIFIED OF THE RIF; THAT THERE IS NO EVIDENCE THAT RESPONDENT EVER
REFUSED TO MEET AND CONFER WITH THE COMPLAINANT CONCERNING THE RIF OR
ANY OTHER SUBJECT; AND THAT, IN FACT, AFTER THE DELIVERY OF THE RIF
NOTICES, THE PARTIES MET AND CONFERRED ON THE RIF ACTION AND THERE IS NO
EVIDENCE THAT THE DIRECTOR EVER REFUSED TO CONSIDER RECOMMENDING A
CHANGE OR THAT ANY SPECIFIC SUGGESTION WAS MADE TO HIM. IN CONCLUSION,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, ALTHOUGH MANAGEMENT
REPRESENTATIVES HAD AUTHORITY TO CANCEL THE RIF IF A REASONABLE
ALTERNATIVE PLAN SHOULD BE PROPOSED, NO SUCH ALTERNATIVE WAS PROPOSED.
UNDER ALL OF THE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND NO
VIOLATION OF THE EXECUTIVE ORDER AND RECOMMENDED THAT THE COMPLAINT BE
DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED.
IOWA STATE AGRICULTURAL STABILIZATION
AND CONSERVATION SERVICE OFFICE,
DEPARTMENT OF AGRICULTURE
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 823
ON JULY 29, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN
THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS AND A SUPPORTING
BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-3711(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 5, 1974
IN THE MATTER OF
IOWA STATE AGRICULTURAL STABILIZATION
AND CONSERVATION SERVICE OFFICE,
DEPARTMENT OF AGRICULTURE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 823
MICHAEL SUSSMAN
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
H. JAMES GORMLEY
AGRICULTURAL STABILIZATION AND
CONSERVATION SERVICE
8430 WARD PARKWAY
KANSAS CITY, MISSOURI 66141
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED JUNE 27, 1973 AND FILED JULY 2, 1973.
/1/ THE COMPLAINT ALLEGED THAT LATE IN APRIL 1973, A REDUCTION IN FORCE
WAS INSTITUTED AMONG RESPONDENT'S EMPLOYEES WITHOUT PRIOR NOTICE TO OR
CONSULTATION WITH THE COMPLAINANT ALTHOUGH IT WAS THE RECOGNIZED
EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S EMPLOYEES. THIS WAS ALLEGED TO
CONSTITUTE A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE
ORDER.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. PURSUANT TO A NOTICE OF HEARING BY THE
ASSISTANT REGIONAL DIRECTOR DATED DECEMBER 4, 1973, AND AN ORDER
RESCHEDULING HEARING, HEARINGS WERE HELD MARCH 11 AND 12, 1974 IN DES
MOINES, IOWA. THE COMPLAINANT WAS REPRESENTED BY COUNSEL AND THE
RESPONDENT BY THE CHIEF, PERSONNEL FIELD OFFICE, AGRICULTURAL
STABILIZATION AND CONSERVATION SERVICE, KANSAS CITY, MISSOURI. TIMELY
BRIEFS WERE FILED BY THE PARTIES ON APRIL 12, 1974.
THE COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
RESPONDENT'S NON-SUPERVISORY EMPLOYEES UNDER THE EXECUTIVE ORDER. IT
HAS BEEN RECOGNIZED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE SINCE
APRIL 1964. THE BARGAINING UNIT INCLUDES ABOUT 40 EMPLOYEES. AT THE
TIME OF THE EVENTS INVOLVED HEREIN, THERE WAS NO COLLECTIVE AGREEMENT IN
EFFECT BETWEEN THE PARTIES.
THE AGRICULTURAL STABILIZATION AND CONSERVATION SERVICE ("ASCS") IS A
SEGMENT OF THE DEPARTMENT OF AGRICULTURE, HEADED BY AN ADMINISTRATOR.
ONE OF THE DIVISIONS OF ASCS FOR OPERATIONAL PURPOSES IS HEADED BY THE
DEPUTY ADMINISTRATOR FOR STATE AND COUNTY OPERATIONS ("DASCO"), LOCATED
IN WASHINGTON, D.C. DASCO HAS SEVERAL REGIONS, ONE OF WHICH WAS THE
MIDWEST REGION WITH HEADQUARTERS IN WASHINGTON. INCLUDED IN THE MIDWEST
REGION WERE SEVEN STATE OFFICES, INCLUDING THE IOWA STATE ASCS, THE
RESPONDENT, WITH HEADQUARTERS IN DES MOINES. FOR STAFF PURPOSES
SUPPORTING SUBSTANTIVE OPERATIONS, UNDER THE ADMINISTRATOR OF ASCS IS
THE DEPUTY ADMINISTRATOR FOR MANAGEMENT, WITH HEADQUARTERS IN
WASHINGTON. UNDER THAT DEPUTY ADMINISTRATOR IS THE MANAGEMENT FIELD
OFFICE ("MFO") IN KANSAS CITY, MISSOURI. MFO, AMONG OTHER FUNCTIONS, IS
THE PERSONNEL OFFICE FOR THE 50 STATE OFFICES OF ASCS. THE STATE OFFICE
DOES NOT HAVE AUTHORITY TO HIRE, FIRE, OR DEMOTE EMPLOYEES. WHEN A
POSITION IS VACANT AND NEEDS TO BE FILLED, THE STATE EXECUTIVE DIRECTOR
NOTIFIES THE REGIONAL OFFICE IN WASHINGTON WHICH MAKES THE ARRANGEMENTS
THROUGH THE MANAGEMENT FIELD OFFICE IN KANSAS CITY.
IN MOST ASCS STATE OFFICES THERE IS NO UNION RECOGNITION. IN THOSE
WHERE THERE IS RECOGNITION, IT IS OF DIVERSE LOCALS WITH DIVERSE
NATIONAL AFFILIATIONS.
ONE OF THE PROGRAMS ADMINISTERED BY ASCS WAS THE RURAL ENVIRONMENTAL
ASSISTANCE PROGRAM("REAP"). THIS PROGRAM WAS ADMINISTERED THROUGH THE
STATE AND COUNTY OFFICES OF ASCS. ON DECEMBER 22, 1972, THE FUNDS TO
CARRY OUT THE SUBSTANTIVE ASPECTS OF THIS PROGRAM WERE IMPOUNDED. AS A
CONSEQUENCE, IT WAS GENERALLY UNDERSTOOD BY EMPLOYEES IN ASCS THAT THERE
WOULD BE A REDUCTION IN FORCE IN THE ASCS STATE OFFICES. THIS BELIEF
WAS STRENGTHENED BY A DECLINE IN THE WORK INVOLVED IN ADMINISTERING THE
OTHER PROGRAMS ADMINISTERED THROUGH THE STATE OFFICES.
ABOUT THE MIDDLE OF FEBRUARY 1973, ASCS DECIDED TO EFFECTUATE A RIF
IN ITS STATE OFFICES, AND DIRECTED DASCO TO CARRY IT OUT. DASCO
COMMENCED A STUDY OF THE PROJECTED WORKLOAD IN THE STATE OFFICES AFTER
JUNE 10, 1973. THROUGH THE DEPUTY ADMINISTRATOR FOR MANAGEMENT, IT TOOK
THE MATTER UP WITH THE MANAGEMENT FIELD OFFICE (IN KANSAS CITY),
PREPARING FOR REDUCTIONS IN FORCE IN THE VARIOUS STATE OFFICES. EARLY
IN APRIL 1973, DASCO DECIDED HOW MANY POSITIONS WERE TO BE ABOLISHED IN
EACH STATE OFFICE EFFECTIVE AT THE END OF THE FISCAL YEAR AND ADVISED
MFO TO DETERMINE WHICH PERSONS WERE TO BE SEPARATED OR RETIRED AS A
RESULT OF THE PROJECTED ABOLISHMENT OF THOSE POSITIONS IN THE RESPECTIVE
STATE OFFICES. IT WAS DASCO (IN WASHINGTON) THAT MADE THE DECISIONS,
EARLY IN APRIL 1973, ON WHICH POSITIONS WERE TO BE ABOLISHED IN THE IOWA
STATE OFFICE, AND IT WAS MFO (IN KANSAS CITY) THAT DECIDED (LATER IN
APRIL 1973) WHICH EMPLOYEES IN THE IOWA STATE OFFICES OF ASCS WERE AS A
CONSEQUENCE TO BE SEPARATED OR TRANSFERRED WITHIN THAT OFFICE IN
ACCORDANCE WITH PROCEDURES AND GUIDELINES OF THE CIVIL SERVICE
COMMISSION PROMULGATED IN THE FEDERAL PERSONNEL MANUAL. MFO THEREUPON
UNDERTOOK TO PREPARE THE FINAL RETENTION REGISTERS AND TO PREPARE THE
NOTICES OF REDUCTION IN FORCE TO THE AFFECTED EMPLOYEES.
ABOUT THE MIDDLE OF APRIL 1973, MFO DETERMINED WHICH EMPLOYEES IN THE
IOWA STATE OFFICE WOULD BE ADVERSELY AFFECTED BY SEPARATION OR TRANSFER.
ON APRIL 20, 1973, IT PREPARED THE RIF NOTICES. THEY WERE SIGNED BY
THE CHIEF OF THE PERSONNEL SERVICES DIVISION OF MFO IN KANSAS CITY.
THEY WERE ADDRESSED, BUT NOT MAILED, TO EIGHT EMPLOYEES, FOUR OF WHOM
WERE TO HAVE THEIR EMPLOYMENT TERMINATED AND FOUR OF WHOM WERE TO BE
LATERALLY TRANSFERRED PURSUANT TO THE F.P.M. MFO, AS THE PERSONNEL
OFFICE FOR THE ASCS STATE OFFICES, HAD THE EMPLOYEE'S PERSONNEL FILES.
DURING ALL THIS TIME THERE WAS NO COMMUNICATION WITH THE IOWA STATE
OFFICE CONCERNING THE PLANNED RIF NOR DID THE IOWA STATE OFFICE KNOW
WHEN THE RIF IN THAT OFFICE WOULD TAKE PLACE NOR OF WHAT IT WOULD
CONSIST. ALSO, THERE WAS NO COMMUNICATION OR CONSULTATION WITH THE
COMPLAINANT ON THE MATTER BY THE IOWA STATE OFFICE, MFO, OR DASCO.
A MEETING OF THE SEVEN STATE EXECUTIVE DIRECTORS IN THE MIDWEST
REGION WAS CALLED FOR APRIL 24 AND 25, 1973 IN THE REGION'S HEADQUARTERS
IN WASHINGTON. A STAFF ASSISTANT TO THE ASCS DEPUTY ADMINISTRATOR FOR
STATE AND COUNTY OPERATIONS (DASCO) WAS PRESENT. ABOUT NOON ON APRIL
25, THE IOWA STATE EXECUTIVE DIRECTOR, DALE H. AWTRY, WAS TOLD THAT THE
RIF IN HIS OFFICE WOULD TAKE PLACE AND WAS GIVEN THE RIF NOTICES TO
DELIVER TO THE EMPLOYEES TO WHOM THEY WERE ADDRESSED. THERETOFORE HE
DID NOT KNOW THE NATURE OF THE RIF NOR WHICH EMPLOYEES WOULD BE
AFFECTED, ALTHOUGH HE ASSUMED, AS DID THE OTHER EMPLOYEES IN THE STATE
OFFICES, THAT A RIF WOULD TAKE PLACE BECAUSE OF THE IMPOUNDMENT OF THE
REAP FUNDS AND DECLINE IN OTHER ADMINISTRATIVE WORK. HE HAD NO
KNOWLEDGE OR INFORMATION CONCERNING THE NUMBER OF POSITIONS TO BE
ABOLISHED IN HIS OFFICE, THEIR IDENTITY, NOR THE EMPLOYEES TO BE
AFFECTED.
UPON LEARNING OF THE RIF IN HIS OFFICE, MR. AWTRY CALLED HIS OFFICE
AT 1:15 P.M. THE SAME DAY. HE GAVE INSTRUCTIONS THAT THE COMPLAINANT
SHOULD BE ADVISED OF THE RIF AND THAT HE WOULD BE IN HIS OFFICE THE NEXT
MORNING WITH THE DETAILS. HE RETURNED TO DES MOINES THE SAME DAY AND
WAS IN HIS OFFICE THE NEXT MORNING.
THERE IS A CONFLICT IN THE EVIDENCE ON WHETHER THE PRESIDENT OF THE
COMPLAINANT, PATRICIA A. THOMAS, WAS NOTIFIED OF THE RIF ON APRIL 25 OR
APRIL 26. MR. AWTRY, ON APRIL 25 TOLD HIS SECRETARY BY TELEPHONE TO
TELL THE ADMINISTRATIVE CHIEF TO NOTIFY THE UNION OF THE RIF
IMMEDIATELY, AND THE ADMINISTRATIVE CHIEF, WHO DID NOT TESTIFY AT THE
HEARING, TOLD MR. AWTRY THAT HE HAD DONE SO. THE PRESIDENT OF THE
RESPONDENT, ON THE OTHER HAND, TESTIFIED DIRECTLY THAT IT WAS NOT UNTIL
THE NEXT DAY THAT SHE WAS ADVISED BY THE ADMINISTRATIVE CHIEF OF THE
RIF. IN THESE CIRCUMSTANCES, I FIND THAT THE UNION WAS NOTIFIED OF THE
RIF ON APRIL 26 AND NOT ON APRIL 25.
ON APRIL 26 MR. AWTRY NOTIFIED THE EIGHT EMPLOYEES AFFECTED. FOUR
RECEIVED LATERAL TRANSFERS, AND FOUR WERE TO BE SEPARATED. /2/ HE GAVE
EACH OF THEM THE RIF NOTICE, READ IT TO THE EMPLOYEE, AND READ AND
EXPLAINED THE EMPLOYEE'S RIGHTS. THIS WAS DONE INDIVIDUALLY WITH EACH
EMPLOYEE, AND CONSUMED ABOUT 20 TO 25 MINUTES PER EMPLOYEE. TWO OF THE
EIGHT EMPLOYEES WERE ABSENT THAT DAY, AND WERE NOT NOTIFIED UNTIL A
LATER DATE WHEN THEY RETURNED. IT WAS NOT UNTIL LATE IN THE AFTERNOON
OF APRIL 26 THAT MR. AWTRY COMPLETED NOTIFYING THE SIX EMPLOYEES.
THE FEDERAL PERSONNEL MANUAL PROVIDES THAT A RIF NOTICE SHALL BE
ISSUED AT LEAST 30 DAYS IN ADVANCE OF ITS EFFECTIVE DATE. IN THIS CASE,
EACH OF THE EMPLOYEES RECEIVED THE NOTICE IN EXCESS OF 60 DAYS BEFORE
ITS EFFECTIVE DATE.
ON MAY 3, 1973, MRS. THOMAS (COMPLAINANT'S PRESIDENT) AND A PAST
PRESIDENT OF THE LOCAL CALLED UPON MR. AWTRY TO DELIVER A LETTER ASKING
FOR CERTAIN INFORMATION CONCERNING THE RIF AND ITS IMPACT. THE SAME DAY
AWTRY FURNISHED THE INFORMATION TO THE EXTENT HE HAD IT; THE UNION HAD
ASKED FOR THE NEW CEILING ON NUMBERS OF AUTHORIZED EMPLOYEES AFTER JUNE
30 AND AWTRY DID NOT HAVE THAT INFORMATION.
ON MAY 7 THE COMPLAINANT DELIVERED A LETTER TO AWTRY REQUESTING
ADDITIONAL INFORMATION AND ASKING A NUMBER OF QUESTIONS. ON MAY 11
AWTRY FURNISHED THE ADDITIONAL INFORMATION AND ANSWERED THE QUESTIONS.
ON MAY 14 THE LOCAL AND AWTRY HAD A MEETING AT WHICH THE RIF WAS
DISCUSSED.
ON MAY 24 A MEETING WAS HELD IN THE RESPONDENT'S OFFICE WHICH WAS
ARRANGED BY THE COMPLAINANT'S NATIONAL OFFICE IN WASHINGTON. PRESENT
FOR THE COMPLAINANT WERE LOCAL PRESIDENT THOMAS, PAST PRESIDENT MARVIN
SMITH, AND A STAFF ATTORNEY FROM THE NFFE NATIONAL OFFICE. PRESENT FOR
THE RESPONDENT WERE STATE EXECUTIVE DIRECTOR AWTRY, JAMES GORMLEY
(CHIEF, PERSONNEL FIELD OFFICE, ASCS, KANSAS CITY WHO REPRESENTED THE
RESPONDENT AT THE HEARINGS IN THIS CASE), AND HAROLD L. JAMISON (DEPUTY
DIRECTOR OF THE MIDWEST REGION). THE MEETING BEGAN ABOUT 10:30 A.M. AND
ENDED ABOUT 3:30 P.M. GORMLEY AND JAMISON HAD WITH THEM A TELEGRAM
SIGNED BY THE DEPUTY ADMINISTRATOR FOR STATE AND COUNTY OPERATIONS TO
MFO IN KANSAS CITY WHICH THEY WERE TO SEND IF THE UNION SHOULD PRESENT A
REASONABLE ALTERNATE PROPOSAL FOR THE RIF NOTICES THAT HAD BEEN
DELIVERED. THE TELEGRAM CONTAINED AN INSTRUCTION FROM DASCO TO MFO TO
WITHDRAW THE RIF NOTICES THAT HAD BEEN ISSUED TO THE IOWA STATE OFFICE.
THE TELEGRAM WAS NOT SENT BECAUSE NO ALTERNATIVE PROPOSAL WAS MADE. THE
MEETING CONSISTED LARGELY OF A DISCUSSION OF WHY CERTAIN PEOPLE HAD BEEN
SELECTED FOR THE RIF INSTEAD OF OTHERS.
ON JUNE 5 AWTRY AND HIS ADMINISTRATIVE CHIEF MET WITH THOMAS AND
SMITH AGAIN. AWTRY ADVISED THE UNION REPRESENTATIVES THAT ONE OF THE
RIF NOTICES WOULD BE RESCINDED BECAUSE OF A RESIGNATION IN THE OFFICE.
IN THE PERIOD FROM APRIL 25, 1973, WHEN AWTRY FIRST LEARNED THE
DETAILS OF THE RIF IN HIS OFFICE, TO JUNE 30, 1973, WHEN THE RIF BECAME
EFFECTIVE, AWTRY NEVER REFUSED TO DISCUSS THE RIF WITH REPRESENTATIVES
OF THE COMPLAINANT.
IN UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND SURGERY,
GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289, A NUMBER OF PROPOSITIONS ARE
CLEARLY ESTABLISHED. AMONG THESE ARE FIRST, THAT A RIF IS "A MATTER
AFFECTING WORKING CONDITIONS" CONCERNING WHICH AN AGENCY AND AN
EXCLUSIVE REPRESENTATIVE ARE REQUIRED BY SECTION 11(A) OF THE EXECUTIVE
ORDER TO MEET AT REASONABLE TIMES AND CONFER. SECOND, THAT ALTHOUGH
THERE IS NO OBLIGATIONS TO CONFER ABOUT THE DECISION TO EFFECTUATE A
RIF, THERE IS AN OBLIGATION TO MEET AND CONFER ABOUT THE METHOD AND
IMPACT OF CARRYING IT OUT BEFORE CARRYING IT OUT; THAT THE FINAL PLAN
OF CARRYING OUT THE RIF SHOULD BE ARRIVED AT WITH THE BENEFIT OF
CONSULTATION WHEN THERE IS TIME TO CONSULT. AND THIRD, THAT THE
"REASONABLE TIME" AT WHICH THE CONFERRING SHOULD BEGIN IS AS SOON AS THE
RIF DECISION IS REACHED, AND "PERHAPS SOONER."
IN THAT CASE RIF NOTICES WERE ISSUED BY THE RESPONDENT ON JANUARY 20,
1972, WITHOUT CONSULTATION, TO BE EFFECTIVE MARCH 19, 1972. THE
ASSISTANT SECRETARY HELD THAT SINCE THERE HAD BEEN TIME TO CONSULT
BEFORE ISSUING THE RIF NOTICES AND THE ACTIVITY HAD NOT CONSULTED BEFORE
ISSUING THE NOTICES, IT HAD VIOLATED SECTION 11(A) OF THE ORDER.
HOWEVER, HE HELD THAT SINCE THE UNION HAD NOTICE OF THE RIF ON JANUARY
20, 1972 AND HAD MADE NO EFFORT TO CONSULT CONCERNING THEIR IMPACT PRIOR
TO THEIR EFFECTIVE DATE, MARCH 19, 1972, THERE WAS NOT A VIOLATION OF
SECTION 19(A)(6).
IN THE CASE BEFORE US, THE DECISION THAT THERE WOULD BE A RIF WAS
NOT, UNLIKE IN THE GREAT LAKES NAVAL HOSPITAL CASE, THE DECISION OF THE
RESPONDENT. IT CAME FROM THE OFFICE OF THE ADMINISTRATOR OF ASCS,
WITHOUT CONSULTATION WITH OR ADVICE FROM THE RESPONDENT. NOR WAS THE
DECISION OF HOW MANY POSITIONS IN THE RESPONDENT'S OFFICE WERE TO BE
ELIMINATED THE RESPONDENT'S DECISION. THAT DECISION WAS MADE BY DASCO,
ALSO WITHOUT CONSULTATION WITH OR ADVICE FROM THE RESPONDENT. NOR WAS
THE FORMULATION OF THE PLAN BY WHICH THE POSITIONS WERE TO BE ELIMINATED
THE PRODUCT OF THE RESPONDENT. IT WAS FORMULATED BY THE MANAGEMENT
FIELD OFFICE (MFO), ALSO WITHOUT CONSULTATION WITH OR ADVICE FROM THE
RESPONDENT. IN SHORT, THE RESPONDENT PLAYED NO PART IN THE DECISION TO
HAVE A RIF, THE DETERMINATION OF THE NUMBER OF POSITIONS TO BE
ELIMINATED, NOR THE FORMULATION OF THE PLAN TO EFFECTUATE THE RIF.
AFTER THE DECISIONS ON HAVING A RIF, DETERMINING ITS EXTENT, AND
FORMULATING THE PLAN TO CARRY IT OUT HAD BEEN COMPLETED AND THE RIF
NOTICES PREPARED, THEY WERE HANDED IN WASHINGTON TO RESPONDENT'S
EXECUTIVE DIRECTOR FOR DELIVERY IN DES MOINES TO THE EMPLOYEES AFFECTED.
HE PROMPTLY CALLED HIS OFFICE AND GAVE INSTRUCTIONS THAT THE
COMPLAINANT WAS TO BE NOTIFIED OF THE RIF IMMEDIATELY AND ADVISED THAT
THE DIRECTOR WOULD BE IN DES MOINES THE NEXT DAY WITH THE DETAILS. THAT
THE COMPLAINANT WAS NOT ACTUALLY NOTIFIED UNTIL THE NEXT DAY IS OF NO
MOMENT. THERE IS NO INDICATION OF ANYTHING THAT COULD HAVE BEEN
ACCOMPLISHED DURING THE LESS THEN TWENTY-FOUR HOUR DELAY IN THE ABSENCE
OF THE DETAILS, AND NOTICE THE NEXT DAY WAS REASONABLY PROMPT.
UNTIL THE TIME THAT THE RIF NOTICES WERE DELIVERED, THERE WAS NOTHING
THAT THE RESPONDENT DID OR NOT DO IN VIOLATION OF EXECUTIVE ORDER 11491.
THE EXECUTIVE DIRECTOR DID NOT CONSULT WITH THE COMPLAINANT ABOUT THE
RIF THAT ALL CONTEMPLATED WOULD COME SOME TIME, BUT THERE WAS NOTHING
ABOUT WHICH HE COULD CONSULT WITH THE COMPLAINANT NOR IS THERE ANY
EVIDENCE HE EVER REFUSED TO CONFER WITH THE COMPLAINANT ABOUT THE RIF OR
ANYTHING ELSE. THERE WAS NO VIOLATION BY THE RESPONDENT OF ANY
OBLIGATIONS IMPOSED BY SECTION 10(E) OF THE ORDER.
WE SHOULD NOT IN THIS CASE DECIDE WHETHER DASCO OR MFO VIOLATED THE
EXECUTIVE ORDER IN NOT CONFERRING WITH THE COMPLAINANT ABOUT THE RIF
THAT WAS GOING TO TAKE PLACE IN THE IOWA STATE OFFICE. THEY WERE
WORKING OUT THE RIF AND ITS DETAILS MORE THAN TWO MONTHS BEFORE THE RIF
NOTICES WERE DELIVERED TO THE EMPLOYEES AFFECTED. NEITHER OF THEM IS
NAMED AS A PARTY RESPONDENT. EVEN IF WE ASSUME THAT AN UNFAIR LABOR
PRACTICE CAN BE COMMITTED BY SOMEONE NOT A PARTY TO THE EXCLUSIVE
RECOGNITION, AND A REMEDY AFFORDED, A REMEDY SHOULD NOT BE AFFORDED
AGAINST ONE NOT A PARTY TO THE LITIGATION. I REACH NO CONCLUSION AND
MAKE NO RECOMMENDATION ON WHETHER DASCO OR MFO HAD ANY OBLIGATION OR
VIOLATED ANY OBLIGATION IT HAD WITH RESPECT TO THE COMPLAINANT.
AFTER THE DELIVERY OF THE RIF NOTICES, THE PARTIES CONFERRED FROM
TIME TO TIME. AT THE MOST EXTENSIVE CONFERENCE, THE RESPONDENT WAS
ASSISTED BY DASCO. THE RESPONDENT AT NO TIME BETWEEN THE TIME OF THE
NOTICES AND THEIR EFFECTIVE DATE,-- MORE THAN SIXTY DAYS,-- REFUSED TO
CONSULT. TO BE SURE, THE EXECUTIVE DIRECTOR'S AUTHORITY WAS LIMITED;
HE COULD NOT MAKE ANY CHANGE IN THE IMPLEMENTATION OF THE RIF BUT COULD
ONLY RECOMMEND SUCH CHANGE. THERE IS NO EVIDENCE THAT HE EVER REFUSED
TO CONSIDER RECOMMENDING SUCH A CHANGE, OR THAT ANY SPECIFIC SUGGESTION
WAS MADE TO HIM. AT THE EXTENSIVE MEETING ON MAY 24, 1973 THE
MANAGEMENT REPRESENTATIVES HAD AUTHORITY TO CANCEL THE RIF IN THE IOWA
STATE OFFICE IF A REASONABLE ALTERNATIVE PLAN SHOULD BE PROPOSED BY THE
COMPLAINANT. BUT NO SUCH ALTERNATIVE WAS PROPOSED. ACCORDINGLY, I FIND
NO VIOLATION BY THE RESPONDENT OF ITS OBLIGATION UNDER SECTION 19(A)(7)
OF THE EXECUTIVE ORDER.
THE COMPLAINANT ARGUES THAT THE EXECUTIVE ORDER IMPOSES ON THE AGENCY
(THE DEPARTMENT OF AGRICULTURE) THE OBLIGATION TO DELEGATE TO THE
ACTIVITY (THE IOWA STATE ASCS OFFICE) THE AUTHORITY TO CONFER AND
NEGOTIATE ON ALL SUBJECTS WHICH ARE MANDATORY SUBJECTS OF CONFERRING OR
NEGOTIATION UNDER THE EXECUTIVE ORDER, AND CITES IN SUPPORT UNITED
FEDERATION OF COLLEGE TEACHERS AND U.S. MERCHANT MARINE ACADEMY, FLRC
NO. 71A-15.
IN THAT CASE AN ACT OF CONGRESS IN 1961 HAD AUTHORIZED THE SECRETARY
OF COMMERCE TO EMPLOY TEACHERS AT THE MERCHANT MARINE ACADEMY WITHOUT
REGARD TO THE CLASSIFICATION ACT. THE SECRETARY OF COMMERCE DELEGATED
THAT AUTHORITY WITH RESPECT TO SALARIES TO THE DEPARTMENT'S DIRECTOR OF
PERSONNEL. ANOTHER REGULATION OF THE DEPARTMENT CONFERRED ON EACH
OPERATING UNIT OF THE DEPARTMENT, INCLUDING THE SUPERINTENDENT OF THE
ACADEMY, THE OBLIGATIONS OF THE DEPARTMENT UNDER SECTION 11(A) OF
EXECUTIVE ORDER 11491 INCLUDING THE LIMITATION "SO FAR AS MAY BE
APPROPRIATE UNDER . . . PUBLISHED POLICIES AND REGULATIONS OF THE
DEPARTMENT . . . AND EXECUTIVE ORDER 11491." THERE WAS ONLY ONE MERCHANT
MARINE ACADEMY. THE UNION WAS GRANTED RECOGNITION AS EXCLUSIVE
REPRESENTATIVE OF THE TEACHERS AT THE ACADEMY IN 1965. THE NEGOTIATED
AGREEMENT DID NOT INCLUDE A PROVISION ON SALARIES. LATER THE FEDERATION
MADE TWO PROPOSALS TO THE FACILITY THAT WOULD CHANGE SALARIES. THE
DEPARTMENT HELD THE PROPOSALS NON-NEGOTIABLE BECAUSE BEYOND THE
AUTHORITY OF THE SUPERINTENDENT OF THE ACADEMY, AND THE FEDERAL LABOR
RELATIONS COUNCIL GRANTED REVIEW.
THE COUNCIL HELD THAT THE LIMITATION IN SECTION 11(A) OF THE
EXECUTIVE ORDER, "SO FAR AS MAY BE APPROPRIATE" UNDER PUBLISHED AGENCY
POLICIES AND REGULATIONS, APPLIED ONLY TO REGULATIONS APPLICABLE
GENERALLY OR AT LEAST TO MORE THAN ONE ACTIVITY AND THEREFORE WAS NOT
APPLICABLE TO THE REGULATION LEAVING THE TEACHING SALARIES AT THE
ACADEMY TO THE DIRECTOR OF PERSONNEL WHILE OTHER PERSONNEL POLICIES WERE
FIXED BY OTHER MORE GENERAL REGULATIONS OR BY THE NEGOTIATED AGREEMENT
BETWEEN THE ACADEMY AND THE FEDERATION.
THE DEPARTMENT ARGUED THAT NEVERTHELESS THE REGULATION DELEGATING
AUTHORITY TO ALTER SALARIES TO THE DIRECTOR OF PERSONNEL TOOK THE
SUBJECT OUTSIDE THE SCOPE OF BARGAINING ALTHOUGH ANOTHER REGULATION (NOT
LIMITED TO THE ACADEMY) GAVE THE SUPERINTENDENT AUTHORITY TO FULFILL THE
BARGAINING OBLIGATIONS OF SECTION 11(A) OF THE EXECUTIVE ORDER. THE
COUNCIL DISAGREED. IT HELD THAT INSOFAR AS THE AGENCY REGULATIONS
CONFERRED ON THE SUPERINTENDENT THE RESPONSIBILITY FOR FULFILLING THE
AGENCY'S BARGAINING OBLIGATIONS UNDER THE ORDER, BUT BARRED NEGOTIATIONS
ON A MANDATORY SUBJECT OF BARGAINING, IT WAS IN CONTRAVENTION OF THE
EXECUTIVE ORDER. THAT DID NOT MEAN THAT THE SUPERINTENDENT HAD THE
AUTHORITY TO BARGAIN ON SALARIES. IT MEANT THAT THE OBLIGATION TO
BARGAIN ON SALARIES WAS IN THE DIRECTOR OF PERSONNEL AS THE "APPROPRIATE
REPRESENTATIVE" OF THE AGENCY TO FULFILL THE OBLIGATION "AN AGENCY AND A
LABOR ORGANIZATION . . . SHALL MEET AT REASONABLE TIMES AND CONFER . . .
WITH RESPECT TO . . . MATTERS AFFECTING WORKING CONDITIONS . . . "
EXECUTIVE ORDER 11491, SECTION 11(A).
THE FIRST OF THOSE HOLDINGS IS NOT APPLICABLE TO THIS CASE.
CONSTITUTING MFO THE PERSONNEL OFFICE FOR THE IOWA STATE OFFICE WAS NOT
LIMITED TO THE IOWA STATE OFFICE; MFO WAS THE PERSONNEL OFFICE FOR ALL
50 STATE ASCS OFFICES. AND THE DIRECTION TO DASCO TO DETERMINE THE
NUMBER OF POSITIONS TO BE ABOLISHED WAS ALSO NOT LIMITED TO IOWA; IT
APPLIED TO ALL STATE OFFICES.
WITH RESPECT TO THE SECOND HOLDING IN THAT CASE DESCRIBED ABOVE, THE
MOST THAT COULD BE ARGUED IS THAT DASCO OR MFO WAS THE "APPROPRIATE
REPRESENTATIVE" TO CONFER WITH THE COMPLAINANT ABOUT THE RIF. THE
MERCHANT MARINE ACADEMY CASE CAME UP ON THE ISSUES OF BARGAINABILITY,
NOT AS AN UNFAIR LABOR PRACTICE FOR REFUSAL TO CONSULT OR CONFER AS IN
THIS CASE. BUT NEITHER DASCO NOR MFO IS A RESPONDENT IN THIS CASE, SO
IT IS UNNECESSARY TO DETERMINE WHETHER EITHER OR BOTH OF THEM VIOLATED
SECTION 19(A)(1) OR (6) OF THE EXECUTIVE ORDER.
THE UNFAIR LABOR PRACTICE CHARGE, MADE PURSUANT TO SECTION
203.2(A)(1) OF THE REGULATIONS, WAS MADE AGAINST "MR. DALE AWTRY, STATE
EXECUTIVE DIRECTOR, IOWA STATE ASCS OFFICE". THE COMPLAINT WAS FILED
AGAINST "IOWA STATE AGRICULTURE STABILIZATION AND CONSERVATION SERVICE
(ASCS) OFFICE" AND IT "ALLEGES THAT THE IOWA STATE ASCS OFFICE WAS IN
VIOLATION OF SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 AS AMENDED FOR
FAILURE TO CONSULT WITH NFFE 823 REGARDING THE REDUCTION IN FORCE." AS
WE HAVE SEEN, NEITHER THE IOWA STATE ASCS OFFICE NOR ITS EXECUTIVE
DIRECTOR DID ANYTHING OR FAILED TO DO ANYTHING IN VIOLATION OF EXECUTIVE
ORDER 11491 AS AMENDED.
NOR IS THIS CASE GOVERNED BY THE DECISION IN DEPARTMENT OF NAVY,
NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY, A/SLMR NO. 400, RE
41-3128(CA). IN THAT CASE THE ACTIVITY HAD IMPOSED DISCIPLINE ON AN
EMPLOYEE IN A UNIT REPRESENTED BY A LABOR ORGANIZATION, AND AN APPEAL
WAS TAKEN BY THE EMPLOYEE. UNDER THE ALTERNATE ESTABLISHED APPEAL
PROCEDURE THAT WAS USED, A GRIEVANCE EXAMINER WAS APPOINTED BY ANOTHER
DIVISION OF THE NAVY, THE REGIONAL OFFICE OF CIVILIAN MANPOWER
MANAGEMENT. THE UNION WAS NOT NOTIFIED OF THE APPEAL. UNDER THE APPEAL
PROCEDURE THE EXAMINER'S DECISION WAS ONLY A RECOMMENDATION WHICH THE
RESPONDENT NEED NOT ACCEPT. THE RECOMMENDATION WAS THAT THE IMPOSITION
OF THE DISCIPLINE BE AFFIRMED, AND THE RECOMMENDATION WAS ADOPTED BY THE
RESPONDENT. IN CONSIDERING THE APPEAL AND REACHING HIS DECISION TO
RECOMMEND AFFIRMANCE OF THE DISCIPLINE, THE GRIEVANCE EXAMINER DISCUSSED
THE MATTER IN PRIVATE WITH THE EMPLOYEE; THE UNION WAS NOT INVITED TO
THE DISCUSSION NOR DID IT EVEN KNOW OF THE APPEAL UNTIL LATER.
THE ABSENCE OF NOTIFICATION TO THE UNION AND THE PRIVATE DISCUSSION
WITH THE EMPLOYEE WERE HELD TO BE IN VIOLATION OF THE LAST SENTENCE OF
SECTION 10(E) OF THE EXECUTIVE ORDER WHICH REQUIRES THAT A RECOGNIZED
LABOR ORGANIZATION BE GIVEN THE OPPORTUNITY TO BE PRESENT AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND AN EMPLOYEE CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS. IT WAS HELD THAT ALTHOUGH THE GRIEVANCE EXAMINER
WAS NOT UNDER THE JURISDICTION OF THE RESPONDENT, HE WAS THE
RESPONDENT'S REPRESENTATIVE IN DECIDING THE APPEAL, AND THAT HENCE HIS
PRIVATE DISCUSSION WITH THE EMPLOYEE, WITHOUT THE UNION BEING GIVEN AN
OPPORTUNITY TO BE PRESENT, WAS A FORMAL DISCUSSION BETWEEN MANAGEMENT
AND THE EMPLOYEE CONCERNING GRIEVANCES OR PERSONNEL POLICIES AND
PRACTICES.
IN THIS CASE IT CANNOT BE SAID THAT DASCO AND MFO WERE THE AGENTS OR
REPRESENTATIVES OF THE RESPONDENT IN WORKING OUT THE RIF. UNLIKE THE
SITUATION IN THE NAVAL ORDNANCE STATION CASE, THE DECISION TO HAVE THE
RIF AND THE DECISION ON HOW IT SHOULD BE EFFECTUATED WERE NOT DECISIONS
OF THE RESPONDENT WHICH WAS NOT EVEN CONSULTED IN REACHING THOSE
DECISIONS. AS OBSERVED ABOVE, THE RESPONDENT IN THIS CASE DID NOT DO
ANYTHING OR FAIL TO DO ANYTHING IN VIOLATION OF THE EXECUTIVE ORDER.
SINCE THE RESPONDENT HAS NOT BEEN SHOWN TO HAVE VIOLATED ANY
PROVISION OF EXECUTIVE ORDER 11491, AND THOSE WHO MIGHT ARGUABLY BE
CONSIDERED TO HAVE COMMITTED VIOLATIONS ARE NOT RESPONDENTS IN THIS
CASE, THE COMPLAINT SHOULD BE DISMISSED.
DATED: JULY 29, 1974
WASHINGTON, D.C.
/1/ THE COMPLAINT STATES, IN ITEM 6, THAT IT IS FILED BY MICHAEL
FORSCAY, STAFF ATTORNEY, NATIONAL FEDERATION OF FEDERAL EMPLOYEES. AT
THE HEARING THE COMPLAINT WAS AMENDED TO CHANGE THE NAME OF THE
COMPLAINANT AS STATED IN THE CAPTION ABOVE. TR. 11-12.
/2/ TWO OF THE FOUR TO BE SEPARATED ACCEPTED INVOLUNTARY RETIREMENT.
LATER, AN EMPLOYEE IN THE OFFICE RESIGNED, ELIMINATING THE NEED FOR
ANOTHER RIF SEPARATION. IT APPEARS THAT ONLY ONE EMPLOYEE IN THE RIF
WAS SEPARATED FROM SERVICE INVOLUNTARILY OTHER THAN BY RETIREMENT.
4 A/SLMR 452; P. 776; CASE NO. 72-4280; NOVEMBER 5, 1974.
UNITED STATES NAVY,
NAVAL AIR STATION (NORTH ISLAND),
SAN DIEGO, CALIFORNIA
A/SLMR NO. 452
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FIELD BY
INDIVIDUAL EMPLOYEES (COMPLAINANTS) AGAINST THE UNITED STATES NAVY,
NAVAL AIR STATION (NORTH ISLAND), SAN DIEGO, CALIFORNIA (RESPONDENT).
THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1) AND
7(D)(1) OF THE EXECUTIVE ORDER BY ITS REFUSAL TO ACCEPT A JOINT
GRIEVANCE. AT THE HEARING, THE COMPLAINT WAS AMENDED TO INCLUDE AN
ALLEGED VIOLATION OF SECTION 19(A)(2) OF THE EXECUTIVE ORDER.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THE ASSISTANT SECRETARY CONCURRED IN THE
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE NOTING THE LATTER'S
FINDINGS THAT SECTION 7(D)(1) OF THE ORDER DOES NOT CONFER ANY RIGHTS
ENFORCEABLE UNDER SECTION 19; THAT WHERE EMPLOYEES ARE SUBJECT TO AN
AGENCY GRIEVANCE PROCEDURE, IN THE ABSENCE OF ANTI-UNION MOTIVATION, ANY
IMPROPER FAILURE BY THE AGENCY TO APPLY THE PROVISIONS OF ITS OWN
PROCEDURE CANNOT BE CONSIDERED VIOLATIVE OF THE ORDER; AND THAT WHERE
NO LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, SECTION
10(E) OF THE ORDER IS INAPPLICABLE.
ACCORDINGLY, AND NOTING THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY DISMISSED THE COMPLAINT IN ITS ENTIRETY.
UNITED STATES NAVY,
NAVAL AIR STATION (NORTH ISLAND),
SAN DIEGO, CALIFORNIA
AND
HELEN S. KUHN,-ET AL
ON AUGUST 22, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDATION THAT DISMISSAL OF THE INSTANT COMPLAINT IS
WARRANTED.
IN REACHING THE FOREGOING CONCLUSION, PARTICULARLY NOTED WERE THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS THAT SECTION 7(D)(1) OF THE ORDER
DOES NOT ESTABLISH ANY RIGHTS FOR EMPLOYEES, ORGANIZATIONS OR
ASSOCIATIONS ENFORCEABLE UNDER SECTION 19 OF THE ORDER; /1/ THAT WHERE
EMPLOYEES ARE SUBJECT TO AN AGENCY GRIEVANCE PROCEDURE, IN THE ABSENCE
OF EVIDENCE OF ANTI-UNION MOTIVATION, AN IMPROPER FAILURE BY THE AGENCY
TO APPLY THE PROVISIONS OF ITS OWN PROCEDURE CANNOT BE CONSIDERED
VIOLATIVE OF THE ORDER; /2/ AND THAT WHERE NO LABOR ORGANIZATION HAS
BEEN ACCORDED EXCLUSIVE RECOGNITION, SECTION 10(E) OF THE ORDER IS
INAPPLICABLE. /3/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4280 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
NOVEMBER 5, 1974
/1/ CF. U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL, FORT
WAINWRIGHT, ALASKA, A/SLMR NO. 278; INTERNAL REVENUE SERVICE, CHICAGO
DISTRICT, A/SLMR NO. 279; AND U.S. DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, WESTERN SERVICE CENTER, OGDEN, UTAH, A/SLMR NO. 280.
/2/ CF. OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS,
A/SLMR NO. 334, AFFIRMED, IN PERTINENT PART, FLRC NO. 74A-3. UNDER THE
CIRCUMSTANCES, I VIEW IT AS UNNECESSARY TO PASS UPON THE ADMINISTRATIVE
LAW JUDGE'S INTERPRETATION OF CERTAIN PROVISIONS OF THE FEDERAL
PERSONNEL MANUAL.
/3/ COMPARE U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL,
FORT WAINWRIGHT, ALASKA, CITED ABOVE, AND U.S. ARMY HEADQUARTERS, U.S.
ARMY TRAINING CENTER, INFANTRY, FORT JACKSON LAUNDRY FACILITY, FORT
JACKSON, SOUTH CAROLINA, A/SLMR NO. 242.
IN THE MATTER OF:
UNITED STATES NAVY
NAVAL AIR STATION (NORTH ISLAND)
SAN DIEGO, CALIFORNIA,
AND
HELEN S. KUHN, ET AL,
BASIL L. MAYES, ESQUIRE
LABOR RELATIONS ADVISOR
REGIONAL OFFICE OF CIVILIAN
MANPOWER MANAGEMENT
SUITE 1313
110 WEST "C" STREET
SAN DIEGO, CALIFORNIA 92101
MR. LEO MOLINA
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
LOCAL 1085
2223 EL CAJON BOULEVARD
SAN DIEGO, CALIFORNIA 92104
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED, AND WAS
INITIATED BY A COMPLAINT DATED MAY 29, 1973, AND FILED ON MAY 30, 1973.
THE COMPLAINT ALLEGES VIOLATIONS OF SECTIONS 19(A)(1) AND 7(D)(1) OF THE
EXECUTIVE ORDER BY THE REFUSAL OF RESPONDENT TO ACCEPT A JOINT
GRIEVANCE. AT THE HEARING, THE COMPLAINT WAS AMENDED TO INCLUDE AN
ALLEGATION OF VIOLATION OF SECTION 19(A)(2) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN SAN DIEGO, CALIFORNIA ON DECEMBER 4 AND 5,
1973, AND IN LOS ANGELES, CALIFORNIA ON FEBRUARY 4, 1974. UPON THE
BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND THE RELEVANT EVIDENCE AT THE HEARING, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION:
1. THE RESPONDENT ACTIVITY IS LOCATED ON NORTH ISLAND, SAN DIEGO,
CALIFORNIA. COMPLAINANT HELEN S. KUHN /1/ IS A SUPPLY CLERK IN THE
SUPPLY DEPARTMENT OF RESPONDENT AND ON JANUARY 19, 1973, WAS EMPLOYED IN
THE RC PROCESSING BRANCH OF THE SUPPLY DEPARTMENT. AT THE TIME OF THE
HEARING SHE WAS ON DETAIL IN THE PURCHASE BRANCH OF THE SUPPLY
DEPARTMENT.
2. ON JANUARY 19, 1973, A MATTER OF PERSONAL CONCERN OR
DISSATISFACTION (NASNINST 12770.13, SEC. 6(A), ASS'T. SEC. EXH. 1(A),
EXH. D) TO COMPLAINANT HELEN KUHN AROSE. DISCUSSION WITH THE BRANCH
SUPERVISOR, MRS. YEAGER WAS HAD ON JANUARY 19, 1973, AND SEVERAL DAYS
LATER, THE MATTER NOT HAVING BEEN RESOLVED TO THE SATISFACTION OF
COMPLAINANT KUHN, MR. SERRANO CALLED MRS. YEAGER AND REQUESTED A
MEETING ON COMPLAINANT KUHN'S GRIEVANCE AND A MEETING ON COMPLAINANT
KUHN'S GRIEVANCE WAS SCHEDULED FOR FEBRUARY 13, 1973. AT THE MEETING OF
FEBRUARY 13, COMPLAINANT KUHN'S GRIEVANCE WAS PRESENTED, AND, IN
ADDITION, AN UNCERTAIN AND HESITANT MOVE (NAMES OF OTHER "GRIEVANTS" NOT
DISCLOSED, ETC.) TO CONVERT THE INDIVIDUAL GRIEVANCE INTO A GROUP
GRIEVANCE WAS MADE BUT, WHEN RESPONDENT OBJECTED, THE "GROUP" GRIEVANCE
ASPECT WAS NOT PRESSED. THE MEETING OF FEBRUARY 13, 1973, ENDED
INCONCLUSIVELY WHEN COMPLAINANT KUHN INSISTED THAT THE ONLY SOLUTION
ACCEPTABLE TO HER REMOVAL OF SUPERVISORS YEAGER, WITH WHOM THE MEETING
OF FEBRUARY 13 WAS HELD, AND CLARK. BECAUSE MRS. YEAGER LACKED
AUTHORITY TO RESOLVE THE MATTER, THE GRIEVANCE WAS REFERRED, UNDER
RESPONDENT'S GRIEVANCE PROCEDURE, TO COMMANDER MURPHY.
3. A MEETING WAS HELD ON FEBRUARY 26, 1973, WITH COMPLAINANT KUHN
AND HER REPRESENTATIVE MR. SERRANO, BY COMMANDER MURPHY, THEN DEPUTY
CONTROL OFFICER. ON FEBRUARY 26, 1973, A DIRECT EFFORT TO CONVERT THE
INDIVIDUAL GRIEVANCE OF COMPLAINANT KUHN INTO A GROUP GRIEVANCE WAS MADE
AND RESPONDENT REFUSED TO ENTERTAIN A GROUP GRIEVANCE. THEREAFTER,
COMPLAINANT KUHN'S GRIEVANCE WAS DISCUSSED AND COMMANDER MURPHY OFFERED
SEVERAL PROPOSALS DESIGNED TO RESOLVE THE MATTER. MR. SERRANO AGREED TO
CONSIDER THE PROPOSED RESOLUTION BUT LATER ADVISED RESPONDENT THAT THE
PROPOSED SOLUTION HAD BEEN REJECTED.
4. ON MARCH 3, 1973, A "FORMAL GROUP GRIEVANCE" WAS FILED WITH THE
COMMANDING OFFICER AND WAS REJECTED BY RESPONDENT ON MARCH 14 BECAUSE,
AS TO COMPLAINANT KUHN, THE INITIAL APPEAL WAS TO THE SUPPLY OFFICER
(DEPARTMENT HEAD) UNDER THE SECOND STEP OF THE INFORMAL PROCEDURE, AND,
AS TO THE OTHER GRIEVANTS, EACH GRIEVANT MUST INITIATE AND PROCESS AN
INDIVIDUAL GRIEVANCE UNDER RESPONDENT'S GRIEVANCE PROCEDURE. ALTHOUGH
15 DAYS WERE ALLOWED, COMPLAINANT KUHN DID NOT FILE AN APPEAL TO THE
SUPPLY OFFICER AND NO OTHER GRIEVANT PROCESSED AN INDIVIDUAL GRIEVANCE.
5. DURING THE FIRST WEEK OF APRIL, 1973, COMMANDER MURPHY MET WITH
EMPLOYEES OF THE SUPPLY DEPARTMENT. AS EMPLOYEES OF THE SUPPLY
DEPARTMENT WERE LOCATED IN TWO BUILDINGS ABOUT THREE QUARTERS TO A MILE
APART, A SEPARATE MEETING WAS HELD WITH EMPLOYEES IN EACH BUILDING. /2/
BEFORE ENTERING THE ROOM IN WHICH THE MEETING WAS HELD WHICH COMPLAINANT
KUHN ATTENDED, COMPLAINANT KUHN ASKED COMMANDER MURPHY IF THE MEETING
HAD ANYTHING TO DO WITH HER GRIEVANCE BECAUSE SHE WANTED HER
REPRESENTATIVE PRESENT IF HER GRIEVANCE WERE TO BE DISCUSSED. COMMANDER
MURPHY TOLD COMPLAINANT THAT HE WAS NOT GOING TO DISCUSS HER GRIEVANCE
BUT THAT HE WAS GOING TO DISCUSS RESPONDENT'S GRIEVANCE PROCEDURE.
COMPLAINANT, ON DIRECT, TESTIFIED THAT COMMANDER MURPHY MADE REFERENCE
TO "THE UNION" AND IMPLIED EMPLOYEES SHOULD "BYPASS THE UNION"; BUT ON
CROSS-EXAMINATION ADMITTED THAT COMMANDER MURPHY DID NOT USE THE WORD
"UNION" AND HAD SAID THAT DISCUSSION WITH THE IMMEDIATE SUPERVISOR COULD
BE BYPASSED AND A GRIEVANCE COULD BE BROUGHT DIRECTLY TO HIM. COMMANDER
MURPHY DIRECTLY TESTIFIED THAT HE DID NOT USE THE WORD "UNION" AND THAT
THE ONLY REFERENCE TO "REPRESENTATIVE" OR "REPRESENTATION" WAS THAT HE
STATED THAT GRIEVANCES SHOULD BE PROCESSED UNDER TWO STEP INFORMAL
PROCEDURE AS OUTLINED IN THE INSTRUCTION AND THAT THEY WERE ENTITLED TO
HAVE REPRESENTATION WHEN THEY INITIATED THE PROCEDURE. COMMANDER MURPHY
FURTHER TESTIFIED THAT HE STATED THAT THEY COULD COME DIRECTLY TO HIM,
RATHER THAN TO THEIR IMMEDIATE SUPERVISOR, AS THE FIRST STEP OF THE
GRIEVANCE PROCEDURE FOR THE REASON THAT MANY OF THEM NO LONGER WORKED
FOR THE SAME IMMEDIATE SUPERVISOR THEY MAY HAVE WORKED FOR WHEN A
GRIEVANCE AROSE. COMMANDER MURPHY'S TESTIMONY, SUPPORTED BY THE
TESTIMONY OF CLEO M. HARRIS, A WITNESS CALLED BY COMPLAINANT, BY THE
TESTIMONY OF MR. PARSELL AND EVEN BY THE TESTIMONY OF COMPLAINANT ON
CROSS-EXAMINATION, IS FULLY CREDITED. TO THE EXTENT INCONSISTENT
THEREWITH, THE TESTIMONY OF COMPLAINANT KUHN IS NOT CREDITED.
THE COMPLAINT /3/ ALLEGED A VIOLATION OF SECTIONS 7(D)(1) AND
19(A)(1) BY THE REFUSAL OF RESPONDENT TO ACCEPT A JOINT GRIEVANCE AS
PROVIDED IN FEDERAL PERSONNEL MANUAL, SECTION 3-6(D)(1) AND WAS AMENDED
AT HEARING TO ALLEGE, IN ADDITION, A VIOLATION OF SECTION 19(A)(2) OF
THE EXECUTIVE ORDER.
1. 19(A)(1)-- 7(D)(1) ALLEGATIONS.
COMPLAINANT ASSERTS THAT BECAUSE THE FEDERAL PERSONNEL MANUAL
PROVIDES THAT:
". . . GRIEVANCES CAN BE INITIATED . . . BY EMPLOYEES, EITHER SINGLY
OR JOINTLY . . .: (SEC. 3-6(D)), RESPONDENT'S REFUSAL TO ENTERTAIN A
GROUP GRIEVANCE, I.E., A TWO OR MORE INDIVIDUAL GRIEVANCES, VIOLATED
SECTION 19(A)(1) BY INTERFERING WITH RIGHTS PROVIDED BY THE EXECUTIVE
ORDER AS AMENDED BY SECTION 7(D)(1). SECTION 7(D)(1) SIMPLY PROVIDES
THAT, WHETHER AN EMPLOYEE IS IN A UNIT OF EXCLUSIVE RECOGNITION,
RECOGNITION OF A LABOR ORGANIZATION DOES NOT PREVENT AN EMPLOYEE FROM
EXERCISING GRIEVANCE OR APPELLATE RIGHTS. IT HAS BEEN HELD IN NUMEROUS
CASES THAT SECTION 7(D)(1) OF THE ORDER DOES NOT CONFER ANY RIGHTS
ENFORCEABLE UNDER SECTION 19. INTERNAL REVENUE SERVICE, CHICAGO
DISTRICT AND NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, ET AL,
A/SLMR NO. 279; U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL,
FORT WAINWRIGHT, ALASKA, A/SLMR NO. 278; U.S. DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, WESTERN SERVICE CENTER. OGDEN, UTAH,
A/SLMR NO. 280; IN THE MATTER OF UNITED STATES NAVY, NAVAL AIR STATION
(NORTH ISLAND) SAN DIEGO, CALIFORNIA AND ANTONIO G. SERRANO, NO.
72-4306(1974).
SECTION 3-6 OF THE FEDERAL PERSONNEL MANUAL PROVIDES:
"A. ESTABLISHMENT OF INFORMAL PROCEDURE. (1) EACH AGENCY MUST
ESTABLISH A PROCEDURE APPROPRIATE TO ITS ORGANIZATION AND DELEGATIONS OF
AUTHORITY FOR THE INFORMAL ADJUSTMENT OF GRIEVANCES. /4/
"(4) THE COMMISSION PURPOSELY HAS ESTABLISHED FEW REQUIREMENTS FOR
THE INFORMAL PROCEDURE. IT IS THE COMMISSION'S VIEW THAT AGENCIES
SHOULD TAILOR THEIR INFORMAL PROCEDURE TO THEIR OWN SPECIFIC
REQUIREMENTS AND SHOULD BE FREE TO EXPERIMENT AND DEVISE TECHNIQUES MOST
SUITABLE TO THEIR NEEDS. WITHIN THE FRAMEWORK OF A FEW COMMISSION
REQUIREMENTS, IT IS THE RESPONSIBILITY OF EACH AGENCY TO DEVISE AN
INFORMAL PROCEDURE BEST SUITED TO ITS OWN SIZE, ORGANIZATIONAL
STRUCTURE, AND MISSION.
"D. USING THE INFORMAL PROCEDURE.
(1) INITIATION BY EMPLOYEE. IN KEEPING WITH THE PERSONAL NATURE OF
MATTERS COVERED BY GRIEVANCE PROCEDURES, GRIEVANCES CAN BE INITIATED
ONLY BY EMPLOYEES, EITHER SINGLY OR JOINTLY; THEY MAY NOT BE INITIATED
BY LABOR ORGANIZATIONS.
(2) TIME LIMIT. AN EMPLOYEE MAY PRESENT A GRIEVANCE CONCERNING A
CONTINUING CONDITION AT ANY TIME. HE MUST PRESENT A GRIEVANCE
CONCERNING A PARTICULAR ACT OR OCCURRENCE WITHIN 15 DAYS OF THE DATE OF
THAT ACT OR OCCURRENCE . . .
(3) FORM OF GRIEVANCE. AN EMPLOYEE MAY PRESENT A GRIEVANCE . . .
(5) MANDATORY USE OF INFORMAL PROCEDURE. AN EMPLOYEE MUST COMPLETE
THE INFORMAL PROCEDURE BEFORE THE AGENCY MAY ACCEPT FROM HIM A GRIEVANCE
CONCERNING THE SAME MATTER FOR PROCESSING UNDER THE FORMAL PROCEDURE."
RESPONDENT'S UNILATERAL GRIEVANCE PROCEDURE PROVIDES, IN PART, AS
FOLLOWS:
"7. RIGHT TO PRESENT. AN EMPLOYEE IS ENTITLED TO PRESENT A
GRIEVANCE THROUGH THE PROCEDURES CONTAINED HEREIN . . .
"8. INFORMAL PROCEDURE. IT IS MANDATORY THAT AN EMPLOYEE COMPLETE
ACTION UNDER THE INFORMAL PROCEDURE . . .
"A. TIME LIMIT
"(1) PRESENTING. AN EMPLOYEE SHALL PRESENT A GRIEVANCE CONCERNING A
PARTICULAR ACT OR OCCURRENCE WITHIN 15 DAYS OF THAT DATE OF THE ACT OR
OCCURRENCE . . .
"(2) COMPLETING. ACTION ON THE EMPLOYEE'S GRIEVANCE . . .
"B. FIRST STEP
"(1) GRIEVANCE. AN EMPLOYEE SHALL INITIATE THE INFORMAL PROCEDURE BY
PRESENTING HIS GRIEVANCE ORALLY TO HIS SUPERVISOR . . .
"C. SECOND STEP. IF THE GRIEVANCE IS NOT RESOLVED AT THE FIRST
STEP, THE EMPLOYEE WILL BE REFERRED TO THE DEPARTMENT HEAD. . . . "
(ASS'T. SEC. EXH. 1(A), EXH. D).
ONLY PARAGRAPH 10 PROVIDES FOR JOINT GRIEVANCES AS FOLLOWS:
"10. JOINT GRIEVANCES. WHEN SEVERAL EMPLOYEES WITHIN THE SAME
ACTIVITY HAVE IDENTICAL GRIEVANCES; THAT IS, THE DISSATISFACTION
EXPRESSED AND RELIEF REQUESTED ARE THE SAME, THE COMMANDING OFFICER MAY
REQUIRE THAT THEY BE JOINED AND PROCESSED AS ONE GRIEVANCE APPLICABLE TO
ALL. . . ." (ASS'T. SEC. EXH. 1(A), EXH. D)
THE PRECISE QUESTION OF LAW URGED BY COMPLAINANT, NAMELY, WHETHER A
RIGHT CREATED BY THE FEDERAL PERSONNEL MANUAL IS ENFORCEABLE UNDER
SECTION 19(A)(1) OF THE EXECUTIVE ORDER, IS NEITHER REACHED NOR DECIDED
SINCE, FOR THE REASONS HEREINAFTER SET FORTH, THE FEDERAL PERSONNEL
MANUAL DOES NOT REQUIRE THE ALLOWANCE OF JOINT GRIEVANCES AND/OR DOES
NOT CREATE A RIGHT TO FILE AND PROCESS JOINT GRIEVANCES. THUS, AS THE
PERTINENT PORTIONS OF THE FEDERAL PERSONNEL MANUAL SET FORTH ABOVE
DEMONSTRATE, NOTHING CONTAINED IN THE FEDERAL PERSONNEL MANUAL CREATES
AN OBLIGATION ON AN AGENCY TO PERMIT JOINT GRIEVANCES OR GRANTS TO
EMPLOYEES THE RIGHT TO JOIN INDIVIDUAL GRIEVANCES. TO THE CONTRARY, THE
FEDERAL PERSONNEL MANUAL REPEATEDLY REFERS TO GRIEVANCES, IN TERMS OF
"AN EMPLOYEE'S GRIEVANCE", ETC., AND SUBSECTION D., RELIED UPON BY
COMPLAINANT, WHEN INITIATED ONLY BY EMPLOYEES. THE WORDS "EITHER SINGLY
OR JOINTLY" AS USED IN SUBSECTION D.(1) ARE NOT A MANDATORY REQUIREMENT
THAT AGENCIES MUST PERMIT EMPLOYEES, AT THEIR OPTION, TO INITIATE
GRIEVANCES SINGLY OR JOINTLY. RATHER, AS NOTED, IT IS PART OF THE
LIMITATION THAT GRIEVANCES MAY BE INITIATED ONLY BY EMPLOYEES, EITHER
SINGLY OR JOINTLY-- NOT BY A LABOR ORGANIZATION. INDEED, THE WHOLE
TENOR OF SUBSECTION D.(1) IS IN APPOSITION TO ANY FORM OF AGENT
GRIEVANCES, I.E., THE "PERSONAL NATURE" OF A GRIEVANCE; "GRIEVANCES CAN
BE INITIATED ONLY BY EMPLOYEES"; "THEY MAY NOT BE INITIATED BY LABOR
ORGANIZATIONS". IT WOULD BE A NON-SEQUITUR TO PROHIBIT INITIATION OF A
GRIEVANCE BY A LABOR ORGANIZATION BUT TO REQUIRE ACCEPTANCE BY AN AGENCY
OF A GRIEVANCE INITIATED BY ONE EMPLOYEE ON BEHALF OF ANOTHER.
THROUGHOUT SUBSECTION D., REFERENCE IS TO "EMPLOYEE" IN THE SINGULAR,
INCLUDING THE HEADING OF SUBSECTION (1) ENTITLED "INITIATION BY
EMPLOYEE". MOREOVER, THE FEDERAL PERSONNEL MANUAL STATES THAT "EACH
AGENCY MUST ESTABLISH A PROCEDURE APPROPRIATE TO ITS ORGANIZATION" AND
"IT IS THE RESPONSIBILITY OF EACH AGENCY TO DEVISE AN INFORMAL
PROCEDURE". ACCORDINGLY, RESPONDENT'S INFORMAL GRIEVANCE PROCEDURE IS
FULLY IN ACCORD WITH ALL REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL
AND RESPONDENT'S REQUIREMENT THAT EACH EMPLOYEE INITIATE HIS, OR HER,
GRIEVANCE INDIVIDUALLY WAS WELL WITHIN THE DISCRETION GRANTED EACH
AGENCY TO DEVISE A N INFORMAL PROCEDURE, AND ENTIRELY CONSISTENT WITH
THE TENOR AND PURPOSE OF THE FEDERAL PERSONNEL MANUAL.
SUBSECTION D.(5) OF THE FEDERAL PERSONNEL MANUAL SPECIFICALLY
PROVIDES THAT "AN EMPLOYEE MUST COMPLETE THE INFORMAL PROCEDURE BEFORE
THE AGENCY MAY ACCEPT . . . A GRIEVANCE, UNDER THE FORMAL PROCEDURE."
RESPONDENT HAD THE RIGHT UNDER ITS GRIEVANCE PROCEDURE TO REQUIRE THAT
EACH EMPLOYEE INITIATE HIS, OR HER, GRIEVANCE INDIVIDUALLY AND
RESPONDENT'S REFUSAL TO ACCEPT A GRIEVANCE UNDER THE FORMAL PROCEDURE
PRIOR TO COMPLETION OF THE INFORMAL PROCEDURE WAS PERMITTED, IF NOT
MANDATED, BY THE REQUIREMENT OF SUBSECTION D.(5) OF THE FEDERAL
PERSONNEL MANUAL.
COMPLAINANT'S FURTHER ASSERTION THAT SECTION 10 OF RESPONDENT'S
GRIEVANCE PROCEDURE, WHICH PERMITS THE COMMANDING OFFICER TO REQUIRE
THAT GRIEVANCES BE JOINED, CREATES A CORRELATIVE RIGHT IN EMPLOYEES TO
REQUIRE THAT GRIEVANCES BE JOINED, IS WITHOUT MERIT. THE GRANT OF
DISCRETIONARY POWER TO THE COMMANDING OFFICER TO JOIN IDENTICAL
GRIEVANCES CREATES NO CORRELATIVE RIGHT IN EMPLOYEES. INDEED, NOTHING
IN SECTION 10 ALTERS IN ANY MANNER THE REQUIREMENT THAT EACH EMPLOYEE
INITIATE HIS, OR HER, GRIEVANCE INDIVIDUALLY. SECTION 10 APPLIES ONLY
AFTER TWO OR MORE EMPLOYEES HAVE INITIATED IDENTICAL GRIEVANCES AND
PERMITS, BUT DOES NOT REQUIRE, THE COMMANDING OFFICER TO REQUIRE, AFTER
INITIATION, THAT THEY BE JOINED FOR PROCESSING. BY WAY OF ANALOGY, 29
C.F.R. SEC. 206.6 PROVIDES, IN PART, THAT THE REGIONAL ADMINISTRATOR MAY
CONSOLIDATE CASES; BUT THE POWER OF THE REGIONAL ADMINISTRATOR TO
CONSOLIDATE CASES CREATES NO POWER IN THE PARTIES TO DO SO.
COMPLAINANT'S CONTENTION IS DEFECTIVE FOR THE FURTHER REASON THAT:
A) EXCEPT FOR THE GRIEVANCE OF COMPLAINANT KUHN NO OTHER INDIVIDUAL
GRIEVANCE WAS EVER INITIATED AND, UNTIL TWO OR MORE INDIVIDUAL
GRIEVANCES WERE INITIATED, SECTION 10 OF RESPONDENT'S GRIEVANCE
PROCEDURE HAD NO APPLICABILITY IN ANY EVENT; AND B) GRIEVANCES MAY NOT
PROPERLY BE ACCEPTED UNDER THE FORMAL PROCEDURE, EITHER PURSUANT TO
SECTIONS 7 AND 9 OF RESPONDENT'S GRIEVANCE PROCEDURE OR SUBSECTION D.(5)
OF THE FEDERAL PERSONNEL MANUAL, UNTIL THE INFORMAL PROCEDURE HAS BEEN
COMPLETED. THERE WAS NO DISAGREEMENT THAT COMPLAINANT KUHN'S GRIEVANCE
WAS HEARD BY COMMANDER MURPHY AS A FIRST STEP GRIEVANCE. EVEN IF
COMPLAINANT KUHN UNDERSTOOD THAT THE FIRST AND SECOND STEPS WERE MERGED,
AND NO FINDINGS ON THIS ISSUE HAS BEEN MADE, THE LETTER OF MARCH 14,
1973, GRANTED HER HAS BEEN MADE, THE LETTER OF MARCH 14, 1973, GRANTED
HER 15 DAYS TO FILE AN APPEAL WITH THE SUPPLY OFFICER (DEPARTMENT HEAD).
THERE IS ALSO NO DISAGREEMENT THAT NO OTHER GRIEVANCE WAS EVER
INITIATED BY ANY INDIVIDUAL EMPLOYEE.
THERE WAS NO CONTENTION AND, CERTAINLY, NO EVIDENCE THAT, APART FROM
THE REJECTED CONTENTION CONCERNING THE FEDERAL PERSONNEL MANUAL,
RESPONDENT IN ANY MANNER INTERFERED WITH, RESTRAINED, OR COERCED ANY
EMPLOYEE IN THE EXERCISE OF ANY RIGHT ASSURED BY THE EXECUTIVE ORDER.
IN THE ABSENCE OF DISCRIMINATORY MOTIVATION OR DISPARITY OF TREATMENT
BASED ON UNION MEMBERSHIP CONSIDERATIONS, RESPONDENT'S INSISTENCE ON
COMPLIANCE WITH ITS UNILATERALLY ESTABLISHED GRIEVANCE PROCEDURE WOULD
NOT VIOLATE SECTION 19(A)(1) OF THE EXECUTIVE ORDER. OFFICE OF ECONOMIC
OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 334, AFF'D IN
PERTINENT PART, FLRC NO. 74A-3; IN THE MATTER OF: GENERAL SERVICES
ADMINISTRATION, REGION 7, FORT WORTH, TEXAS, CASE NOS. 63-4757(CA) AND
63-4758(CA) (1974); IN THE MATTER OF: UNITED STATES NAVY, NAVAL AIR
STATION (NORTH ISLAND), SAN DIEGO, CALIFORNIA, AND ANTONIO G. SERRANO,
CASE NO. 72-4306 (1974). THEREFORE I SHALL RECOMMEND THAT THE
ALLEGATIONS OF THE COMPLAINT CHARGING A VIOLATION OF SECTIONS 19(A)(1)
AND 7(D)(1) BE DISMISSED.
COMPLAINANT'S ASSERTIONS IN SUPPORT OF THE 19(A)(2) ALLEGATION ARE:
A) THAT A GROUP OF EMPLOYEES WAS GRIEVING AND THEY WERE INTERFERED WITH
THROUGH THE ADMINISTRATIVE PROCEDURE (TR. 216); AND B) THAT THE UNION
WAS NOT ALLOWED TO HAVE A REPRESENTATIVE PRESENT DURING COMMANDER
MURPHY'S APRIL, 1973, MEETINGS WITH EMPLOYEES (TR. 217-218). AS TO A),
WHAT HAS BEEN SAID WITH REGARD TO THE 19(A)(1)-- 7(D)(1) ALLEGATION IS
EQUALLY APPLICABLE TO THE 19(A)(2) ALLEGATION. RESPONDENT DID NOT
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT BY ITS REFUSAL TO ACCEPT A GROUP GRIEVANCE
AND/OR BY INSISTING UPON COMPLIANCE WITH THE PROVISIONS OF ITS GRIEVANCE
PROCEDURE.
AS TO B), COMMANDER MURPHY MET WITH EMPLOYEES IN APRIL, 1973, TO
EXPLAIN THE PROCEDURE FOR PROCESSING A GRIEVANCE UNDER RESPONDENT'S
GRIEVANCE PROCEDURE. COMPLAINANT KUHN ASKED IF HER GRIEVANCES WERE
GOING TO BE DISCUSSED AS SHE WANTED HER REPRESENTATIVE PRESENT IF IT
WERE TO BE DISCUSSED. COMMANDER MURPHY TOLD HER THAT HER GRIEVANCE
WOULD NOT BE DISCUSSED. COMPLAINANT KUHN THEN ATTENDED THE MEETING AND
THERE WAS NO DISCUSSION OF HER GRIEVANCE. IT IS TRUE, OF COURSE, THAT
NO LABOR ORGANIZATION WAS GIVEN NOTIFICATION OF THE APRIL, 1973,
MEETINGS; BUT NO UNION HAD BEEN ACCORDED EXCLUSIVE RECOGNITION AND,
ACCORDINGLY, SECTION 10(E) OF THE EXECUTIVE ORDER HAS NO APPLICATION.
IN THE ABSENCE OF A RECOGNIZED OR CERTIFIED BARGAINING REPRESENTATIVE,
THERE IS NO OBLIGATION UNDER THE EXECUTIVE ORDER TO GIVE A UNION THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS. ACCORDINGLY, I
SHALL RECOMMEND THAT THE ALLEGATIONS OF THE COMPLAINT, AS AMENDED AT
HEARING, CHARGING A VIOLATION OF SECTION 19(A)(2) BE DISMISSED.
I RECOMMEND THAT THE COMPLAINT HEREIN, AS AMENDED AT THE HEARING, BE
DISMISSED IN ITS ENTIRETY.
DATED: AUGUST 22, 1974
WASHINGTON, D.C.
/1/ OTHER EMPLOYEES PURPORTED TO JOIN IN THE COMPLAINT; HOWEVER, THE
MOVING PARTY WAS HELEN KUHN AND SHE WILL BE REFERRED TO AS COMPLAINANT.
/2/ AT THE TIME THESE MEETINGS WERE HELD, THE TIME ALLOWED IN THE
LETTER OF MARCH 14, 1973, HAD EXPIRED.
/3/ RESPONDENT'S CONTENTION THAT THE COMPLAINT WAS NOT FILED IN
ACCORDANCE WITH SEC. 203.1 AND 203.3 OF THE RULES AND REGULATIONS OF THE
ASSISTANT SECRETARY, 29 C.F.R. SEC. 203.1 AND 203.3, IS WITHOUT MERIT.
THE COMPLAINT WAS SIGNED BY HELEN S. KUHN, IN ACCORDANCE WITH SEC.
203.3(F) AND THE FACT THAT ADDITIONAL PERSONS "JOINED" IN THE COMPLAINT
AND NOT RENDER THE COMPLAINT DEFECTIVE.
/4/ UNDER SUBSECTION A., ESTABLISHMENT . . . ", REFERENCE IS SOLELY
TO "AN EMPLOYEE'S GRIEVANCE"; "THE GRIEVANCE"; "A DISSATISFIED
EMPLOYEE"; "EVERY EMPLOYEE'S GRIEVANCE"; "CONVINCE THE EMPLOYEE THAT
HE HAS BEEN FAIRLY TREATED" (3-6(A)(2)); "THE EMPLOYEE"; "THE EMPLOYEE
MAY PRESENT HIS GRIEVANCE" (3-6(A)(3)).
4 A/SLMR 451; P. 767; CASE NO. 73-541; OCTOBER 31, 1974.
ARMY AND AIR FORCE EXCHANGE SERVICE,
PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE
A/SLMR NO. 451
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF
THE ORDER BY THE CONTRACTING OUT OF CERTAIN AUTO REPAIR OPERATIONS
WITHOUT GOOD FAITH CONSULTATION ON THE IMPACT OF THE CONTRACTING OUT
WITH THE COMPLAINANT.
IN JANUARY 1973, A NEW INDIVIDUAL ASSUMED THE DUTIES OF THE CHIEF OF
PERSONNEL FOR THE HAWAII REGIONAL EXCHANGE. ON JANUARY 10, HE WAS
INFORMED THAT THE RESPONDENT HAD SENT OUT REQUESTS FOR BIDS ON ITS AUTO
REPAIR OPERATIONS TO VARIOUS PRIVATE CONTRACTORS, AND CERTAIN OF THE
RESPONDENT'S AUTO REPAIR OPERATIONS WERE, IN FACT, CONTRACTED OUT AS OF
JULY 1, 1973. THE COMPLAINANT ALLEGED THAT THE RESPONDENT FAILED TO
INFORM THE COMPLAINANT OF THE IMPENDING ACTION AND TURNED ASIDE
INQUIRIES FROM THE COMPLAINANT'S REPRESENTATIVES REGARDING THE RUMORED
CHANGE. THE RESPONDENT CONTENDED THAT ITS CHIEF OF PERSONNEL, AT
SEVERAL MEETINGS AND IN THE COURSE OF SEVERAL TELEPHONE CONVERSATIONS,
INFORMED THE COMPLAINANT OF THE IMPENDING ACTION AND INVITED THE LATTER
TO CONFER REGARDING THE IMPACT OF THE ACTION ON UNIT EMPLOYEES. THE
RESPONDENT FURTHER CONTENDED THAT A COPY OF A LETTER DATED MARCH 27,
1973, ADDRESSED TO ALL EMPLOYEES, ANNOUNCING THE CONTRACTING OUT AND THE
PROCEDURES TO BE USED IN IMPLEMENTING THE CHANGE, WAS SENT TO THE
COMPLAINANT.
THE CHIEF ADMINISTRATIVE LAW JUDGE CREDITED THE TESTIMONY OF THE
COMPLAINANT'S REPRESENTATIVES REGARDING THE PARTIES' MEETINGS PRIOR TO
THE CONTRACTING OUT. IN THIS REGARD, HE CONCLUDED THAT THE RESPONDENT'S
PLANS TO CONTRACT OUT ITS AUTO REPAIR OPERATIONS WERE ALLUDED TO IN THE
DISCUSSIONS BETWEEN THE RESPONDENT AND THE COMPLAINANT IN ONLY A
TENTATIVE AND INCOMPLETE FASHION; THAT THE COMPLAINANT WAS NOT
ADEQUATELY PUT ON NOTICE OF THE PROPOSED ACTIONS; AND THAT THE MARCH
27, 1973, LETTER WAS NOT RECEIVED BY RESPONSIBLE OFFICIALS OF THE
COMPLAINANT. ACCORDINGLY, THE CHIEF ADMINISTRATIVE LAW JUDGE, ALTHOUGH
NOTING THAT UNDER THE EXECUTIVE ORDER THE DECISION TO CONTRACT OUT PART
OF THE RESPONDENT'S OPERATIONS WAS NOT A SUBJECT UPON WHICH THE
RESPONDENT HAD TO MEET AND CONFER WITH THE COMPLAINANT, CONCLUDED THAT
THE RESPONDENT HAD VIOLATED SECTION 19(A)(6) OF THE ORDER BY FAILING TO
NOTIFY THE COMPLAINANT OF ITS INTENTION TO CONTRACT OUT THE WORK,
THEREBY DEPRIVING THE COMPLAINANT OF THE OPPORTUNITY TO SEEK
NEGOTIATIONS REGARDING THE IMPACT OF THE CHANGE ON AFFECTED UNIT
EMPLOYEES.
UPON CONSIDERATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED
THE CHIEF ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION.
ARMY AND AIR FORCE EXCHANGE SERVICE,
PACIFIC EXCHANGE SYSTEM,
HAWAII REGIONAL EXCHANGE
AND
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
LOCAL 1186
ON SEPTEMBER 6, 1974, CHIEF ADMINISTRATIVE LAW JUDGE H. STEPHAN
GORDON ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR
LABOR PRACTICES, AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE
ACTION AS SET FORTH IN THE ATTACHED CHIEF ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION. NO EXCEPTIONS WERE FILED TO THE CHIEF
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE CHIEF
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON
CONSIDERATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE ARMY AND AIR FORCE
EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM, HAWAII REGIONAL EXCHANGE,
SHALL:
1. CEASE AND DESIST FROM:
FAILING TO NOTIFY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
WITH RESPECT TO THE CONTRACTING OUT OF AUTO REPAIR OR OTHER OPERATIONS,
AND TO AFFORD SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTEND CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT SUCH
CONTRACTING OUT WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY AFFECTED BY
SUCH ACTION.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY
INTENDED CONTRACTING OUT OF AUTO REPAIR OR OTHER OPERATIONS AND, UPON
REQUEST, MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT SUCH CONTRACTING OUT WILL HAVE ON THE UNIT
EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
(B) POST AT ITS FACILITY AT THE PACIFIC EXCHANGE SYSTEM, HAWAII
REGIONAL EXCHANGE, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE
SIGNED BY THE COMMAND ER OF THE HAWAII REGIONAL EXCHANGE AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1974
WE WILL NOT FAIL TO NOTIFY THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITH RESPECT TO THE CONTRACTING OUT OF AUTO REPAIR OR
OTHER OPERATIONS, AND AFFORD SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET
AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
IMPACT SUCH CONTRACTING OUT WILL HAVE ON THE UNIT EMPLOYEES ADVERSELY
AFFECTED BY SUCH ACTION.
WE WILL NOTIFY THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL-CIO, LOCAL 1186, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY
INTENDED CONTRACTING OUT OF AUTO REPAIR OR OTHER OPERATIONS AND, UPON
REQUEST, MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE IMPACT SUCH CONTRACTING OUT WILL HAVE ON THE UNIT
EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
DATED . . . BY
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
ARMY AND AIR FORCE EXCHANGE SERVICE
PACIFIC EXCHANGE SYSTEM
HAWAII REGIONAL EXCHANGE
AND
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, LOCAL 1186
ROBERT E. EDWARDS, ASSISTANT GENERAL COUNSEL
ARMY AND AIR FORCE EXCHANGE SERVICE
9311 WALTON WALKER BOULEVARD
DALLAS, TEXAS 75222
BENJAMIN C. SIGAL, ESQUIRE
333 QUEEN STREET, SUITE 800
HONOLULU, HAWAII 96813
BEFORE: H. STEPHAN GORDON
CHIEF ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING, HEARD IN HONOLULU, HAWAII ON FEBRUARY 28, AND MARCH
1, 1974, ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED, (HEREINAFTER
REFERRED TO AS THE ORDER) PURSUANT TO A NOTICE OF HEARING ON COMPLAINT
ISSUED ON JANUARY 22, 1974, BY THE REGIONAL ADMINISTRATOR OF THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, SAN FRANCISCO REGION, IN ACCORDANCE WITH SECTION 203.8 OF THE
RULES AND REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
RELATIONS, 29 C.F.R. 203.8. THE COMPLAINT HERE IN ISSUE, FILED
SEPTEMBER 21, 1973, BY LOCAL 1186 OF THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, (HEREINAFTER REFERRED TO AS THE UNION),
CHARGES THAT THE HAWAII REGIONAL EXCHANGE (HEREINAFTER REFERRED TO AS
H.R.E. OR THE ACTIVITY) FAILED AND REFUSED TO CONSULT, CONFER, AND
NEGOTIATE AS REQUIRED BY THE ORDER, IN VIOLATION OF SECTION 19(A)(6)
THEREOF. THE COMPLAINT ALLEGES THAT EFFECTIVE ON OR ABOUT JULY 1, 1973,
THE ACTIVITY CONTRACTED OUT TO A PRIVATE CONTRACTOR AUTOMOTIVE REPAIR
WORK WHICH HAD PREVIOUSLY BEEN PERFORMED BY ACTIVITY EMPLOYEES, WITHOUT
FIRST HAVING CONFERED, CONSULTED OR NEGOTIATED WITH THE UNION REGARDING
THE IMPACT OF THAT ACTION ON AFFECTED EMPLOYEES.
THE ACTIVITY CONTENDS THAT RESPONSIBLE UNION OFFICIALS WERE APPRISED
OF ITS PLANS FOR CONTRACTING OUT WELL IN ADVANCE OF THEIR IMPLEMENTATION
AND THAT FULL AND SUFFICIENT OPPORTUNITY EXISTED FOR THE UNION TO
REQUEST CONSULTATION REGARDING THE IMPACT OF THE PROPOSED ACTION.
BOTH PARTIES WERE REPRESENTED AT THE FORMAL HEARING AND WERE AFFORDED
FULL OPPORTUNITY TO CALL, EXAMINE AND CROSS-EXAMINE WITNESSES AND ADDUCE
RELEVANT EVIDENCE. POST HEARING BRIEFS RECEIVED FROM BOTH PARTIES HAVE
BEEN GIVEN CLOSE CONSIDERATION. ON THE BASIS OF THE ENTIRE RECORD IN
THE CASE AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR I MAKE
THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS
TO THE ASSISTANT SECRETARY.
IN ACCORDANCE WITH THE STIPULATIONS OF FACT JOINTLY SUBMITTED BY THE
PARTIES AND ACCEPTED IN EVIDENCE /1/ THE FOLLOWING MATTERS RELEVANT TO
THE CONTROVERSY WERE ESTABLISHED:
THE HAWAII REGIONAL EXCHANGE IS A SUBORDINATE ORGANIZATIONAL ELEMENT
OF THE PACIFIC EXCHANGE SYSTEM (HEREINAFTER REFERRED TO AS PACEX)
HEADQUARTERED IN HONOLULU, HAWAII. PACEX IS DIRECTLY RESPONSIBLE TO
HEADQUARTERS ARMY AND AIR FORCE EXCHANGE SERVICE IN DALLAS, TEXAS. THE
MISSION OF THE EXCHANGE SERVICE AND ITS COMPONENT, H.R.E., IS TO PROVIDE
MERCHANDISE AND SERVICES TO AUTHORIZED PATRONS AT LOWER PRICES THAN ARE
FOUND IN THE GENERAL RETAIL MARKET.
H.R.E. IS DIVIDED INTO SIX BRANCHES; OF THESE ONLY THE SERVICES
BRANCH IS HERE IN ISSUE. THE SERVICES BRANCH, IN TURN, IS DIVIDED INTO
THE VENDING AND (AUTO) SERVICES SECTION. THE (AUTO) SERVICES SECTION
PERFORMS THREE FUNCTIONS: (1) RETAIL (PARTS AND ACCESSORIES), (2)
GASOLINE (PUMPING AND SALES), AND (3) AUTO REPAIRS (MECHANICS). PRIOR
TO JULY 2, 1973, THIS LAST FUNCTION WAS PERFORMED AT ALL GARAGES
MAINTAINED BY THE ACTIVITY BY ACTIVITY EMPLOYEES. SUBSEQUENT TO THAT
DATE AUTO REPAIR WORK AT TWO OF THE ACTIVITY'S GARAGE FACILITIES, AT
HICKAM AIR FORCE BASE AND SCHOFIELD BARRACKS, HAS BEEN PERFORMED BY
KEICO INTERNATIONAL INCORPORATED, A PRIVATE CONTRACTOR, UNDER A
CONCESSION AGREEMENT.
LABOR-MANAGEMENT RELATIONS AT THE ACTIVITY ARE GOVERNED BY AN
AGREEMENT /2/ NEGOTIATED BETWEEN H.R.E. AND THE UNION, THE EXCLUSIVE
REPRESENTATIVE OF UNIT EMPLOYEES.
THE CONTROVERSY PRESENTED, AS FRAMED BY THE COMPLAINT AND DEVELOPED
BY THE EVIDENCE ADDUCED AND BRIEFS SUBMITTED BY THE PARTIES, RESOLVES TO
ONE OF FACT. THE UNION, THROUGH THE TESTIMONY OF TWO OF ITS OFFICERS,
SOUGHT TO PROVE THAT FROM JANUARY, 1973 WHEN THE ACTIVITY BEGAN TO
SOLICIT BIDS FROM PRIVATE CONTRACTORS TO ASSUME ITS AUTO REPAIR
OPERATION UNTIL JULY 1, 1973, WHEN KEICO INTERNATIONAL, INC. BEGAN
OPERATING THE ACTIVITY'S AUTO REPAIR SERVICE UNDER A CONCESSIONAIRE
CONTRACT, THE ACTIVITY FAILED TO INFORM THE UNION OF THE IMPENDING
ACTION AND TURNED ASIDE INQUIRIES FROM THE UNION REGARDING THE CHANGE.
THE ACTIVITY, THROUGH THE TESTIMONY OF ITS CHIEF OF PERSONNEL, CONTENDED
THAT AT SEVERAL MEETINGS AND IN THE COURSE OF SEVERAL TELEPHONE
CONVERSATIONS UNION REPRESENTATIVES WERE INFORMED OF THE PROPOSED ACTION
AND INVITED TO CONFER REGARDING THE IMPACT OF THE ACTION ON UNIT
EMPLOYEES. THE RESOLUTION OF THIS CREDIBILITY PROBLEM, IN THE ABSENCE
OF PERSUASIVE DOCUMENTARY EVIDENCE ONE WAY OR THE OTHER, MUST COME AFTER
CAREFUL REVIEW AND ASSESSMENT OF THE TESTIMONY OFFERED, ITS COGENCY,
INTERNAL CONSISTENCY AND INHERENT "BELIEVABILITY," WITH DUE REGARD TO
THE DEMEANOR OF THE WITNESSES AS OBSERVED.
MR. KENNETH R. BASS ASSUMED THE DUTIES OF CHIEF OF PERSONNEL FOR
H.R.E. ON DECEMBER 12, 1972. ON JANUARY 10, 1973, /3/ HE FIRST LEARNED
THAT REQUESTS FOR BIDS ON THE ACTIVITY'S AUTO REPAIR OPERATION HAD BEEN
SENT TO PROSPECTIVE PRIVATE CONTRACTORS. ON THE SAME DATE MR. BASS
FIRST MET MR. JAMES S. YOSHIDA, ASSISTANT BUSINESS MANAGER OF THE UNION,
AND MR. THOMAS FUJIKAWA, ADMINISTRATIVE ASSISTANT WITH THE UNION.
THE UNION AND ACTIVITY HAD AN ESTABLISHED POLICY OF MEETING ONCE A
MONTH TO DISCUSS TOPICS OF COMMON CONCERN WITH THE OBJECT OF CONTINUING
HARMONIOUS LABOR-MANAGEMENT RELATIONS AT THE ACTIVITY. PURSUANT TO
ARTICLE IV OF THE NEGOTIATED AGREEMENT THE ACTIVITY WAS RESPONSIBLE FOR
KEEPING MEMORANDA OF THESE AND OTHER MEETINGS BETWEEN MANAGEMENT
OFFICIALS AND UNION REPRESENTATIVES AND FOR RECORDING THE DATE OF EACH
MEETING, THE NAMES OF THOSE IN ATTENDANCE, THE SUBJECT DISCUSSED, NATURE
OF THE DISCUSSIONS AND DECISIONS REACHED. THE UNION HAD AN OPPORTUNITY
TO REVIEW THE DRAFT MEMORANDUM BEFORE IT BECAME FINAL. A MEMORANDUM WAS
TO BE PREPARED FOR ALL MEETINGS, UNLESS BOTH PARTIES AGREED TO THE
CONTRARY.
AT THE GENERAL MEETING HELD ON JANUARY 18, 1973, MESSRS. BASS,
YOSHIDA AND FUJIKAWA WERE IN ATTENDANCE ALONG WITH SEVERAL OTHER UNION
REPRESENTATIVES. MR. YOSHIDA TESTIFIED THAT AFTER THERE HAD BEEN
DISCUSSION ON SEVERAL MATTERS NOT HERE RELEVANT HE TOLD MR. BASS THAT
HE HAD HEARD OF RUMORS CIRCULATING AMONG EMPLOYEES THAT A CONTRACTING
OUT OF THE AUTO REPAIR OPERATION WAS BEING CONTEMPLATED BY MANAGEMENT.
ACCORDING TO YOSHIDA, BASS REPLIED THAT SOMETHING WAS "IN THE MILL" BUT
THAT NOTHING WAS FINALIZED AND THAT THE UNION WOULD BE KEPT INFORMED OF
DEVELOPMENTS. MR. FUJIKAWA CORROBORATED MR. YOSHIDA'S RECOLLECTION OF
THE JANUARY 18 MEETING IN EVERY RESPECT.
CONTRARY TO MR. YOSHIDA'S TESTIMONY, MR. BASS RECALLED HIMSELF HAVING
BROUGHT UP THE SUBJECT OF THE CONTRACTING OUT AFTER THE GENERAL MEETING
HAD ENDED AND AFTER ALL BUT MR. YOSHIDA HAD LEFT THE ROOM. IT WAS BASS'
TESTIMONY THAT AS THE MEETING WAS BREAKING UP HE ASKED YOSHIDA TO STAY
BEHIND AND INFORMED HIM THAT SOMETHING WAS IN THE WORKS REGARDING
CONTRACTING OUT OF AUTO REPAIR WORK. MR. BASS SAID HE DID NOT MENTION
THE MATTER IN THE PRESENCE OF THE OTHER UNION REPRESENTATIVES BECAUSE HE
DID NOT WANT TO INCITE OR DISTURB THE EMPLOYEES WHILE THE ACTIVITY'S
PLANS WERE STILL UNSETTLED AND THAT HE WAS TRUSTING MR. YOSHIDA'S
JUDGMENT NOT TO BROADCAST THE INFORMATION TO EMPLOYEES. IN RETROSPECT
MR. BASS ADMITTED THAT IT WAS A "POOR CHOICE OF JUDGMENT NOT TO HAVE
MENTIONED THE ACTIVITY'S PLANS IN THE CONTEXT OF THE FORMAL MEETING."
THE MEMORANDUM OF THE JANUARY 18 MEETING, PREPARED BY THE ACTIVITY
AND APPROVED BY THE UNION, MAKES NO MENTION OF ANY DISCUSSION OF
CONTRACTING OUT. HOWEVER, MR. YOSHIDA'S RECOLLECTION OF THE EVENTS OF
THE MEETING IS BOLSTERED NOT ONLY BY THE CORROBORATIVE TESTIMONY OF MR.
FUJIKAWA BUT ALSO THE LATTER'S RECOLLECTION THAT HE LEFT THE MEETING
ROOM ACCOMPANIED BY MR. YOSHIDA AND DROVE AWAY IN THE SAME AUTOMOBILE.
THIS COULD NOT HAVE HAPPENED, OF COURSE, HAD MR. BASS KEPT MR. YOSHIDA
AFTER MR. FUJIKAWA AND THE OTHERS HAD LEFT.
ON JANUARY 19, THE DAY FOLLOWING THE GENERAL MEETING MR. BASS WAS
INFORMED BY OTHER MANAGEMENT OFFICIALS AS TO THE NUMBER OF EMPLOYEES WHO
WOULD BE AFFECTED BY THE CONTRACTING OUT. MR. BASS DID NOT IMMEDIATELY
COMMUNICATE THIS INFORMATION TO MR. YOSHIDA OR ANY OTHER RESPONSIBLE
UNION REPRESENTATIVE.
ON FEBRUARY 6, A SPECIAL MEETING WAS HELD FOR THE PURPOSE OF
DISCUSSING THE RELOCATION OF SOME H.R.E.'S ADMINISTRATIVE PERSONNEL TO
THE BUILDING OCCUPIED BY PACEX HEADQUARTERS STAFF. WHILE CERTAIN OTHER
EXTRANEOUS SUBJECTS WERE DISCUSSED NO MENTION WAS MADE OF THE
CONTRACTING OUT.
THERE WAS AN ADDITIONAL INFORMAL MEETING BETWEEN MR. BASS AND MSSRS.
YOSHIDA AND FUJIKAWA ON FEBRUARY 9. NO MEMORANDUM WAS MADE OF THIS
MEETING BUT MR. BASS TESTIFIED THAT THE MAIN SUBJECT OF DISCUSSION WAS
THE SCHEDULING OF EMPLOYEES AT ONE OF THE ACTIVITY'S STORES. IN
ADDITION MR. BASS RECALLED THAT HE "PROBABLY" RELAYED TO THE UNION
REPRESENTATIVES THE INFORMATION REGARDING THE CONTRACTING OUT THAT HE
HAD LEARNED ON JANUARY 19. BOTH UNION OFFICERS PRESENT AT THE MEETING
DENY THAT THERE WAS ANY DISCUSSION REGARDING CONTRACTING OUT. THE
REGULAR FEBRUARY MEETING WAS HELD ON THE 14TH DAY OF THE MONTH. THE
MEMORANDUM OF THIS MEETING MAKES NO MENTION OF A DISCUSSION OF
CONTRACTING OUT AND MR. YOSHIDA AND MR. FUJIKAWA TESTIFIED THAT THE
SUBJECT WAS NOT RAISED.
AT THE APRIL 26 GENERAL MEETING SEVERAL TOPICS NOT HERE RELEVANT WERE
DISCUSSED AMONG THE LABOR AND MANAGEMENT REPRESENTATIVE ASSEMBLED. MR.
YOSHIDA TESTIFIED THAT DURING THE COURSE OF THIS MEETING HE RAISED THE
SUBJECT OF THE CONTRACTING OUT OF THE AUTO REPAIR WORK PERFORMED BY THE
SERVICE SECTION AND WAS TOLD BY MF. BASS THAT THE MATTER WAS OUT OF HIS
HANDS AND THAT HE HAD HAD NO WORD ON WHAT WAS TO TAKE PLACE. MR. BASS
DENIED THAT THE SUBJECT EVER WAS RAISED AT THE APRIL 26 MEETING. THE
MEMORANDUM OF THE MEETING CONTAINS NO REFERENCE TO THE SUBJECT.
AT THE MAY 23RD MEETING, THE LAST GENERAL MEETING HELD BEFORE THE
PRIVATE CONTRACTOR TOOK OVER OPERATION OF THE ACTIVITY'S AUTO REPAIR
OPERATIONS AT TWO OF ITS GARAGE FACILITIES, NEITHER PARTY BROACHED THE
SUBJECT OF THE CONTRACTING OUT. ONLY AFTER THE CHANGE-OVER WAS
EFFECTED, ON JULY 16 OR 17, WHILE THE PARTIES WERE MEETING TO BEGIN
DISCUSSIONS FOR THE RENEWAL OF THE NEGOTIATED AGREEMENT, WAS THE SUBJECT
RAISED AGAIN. AT THAT TIME MR. YOSHIDA REPORTED THAT THERE WERE NEW
PERSONNEL WORKING AT THE HICKHAM AIR FORCE BASE AND SCHOFIELD BARRACKS
GARAGE FACILITIES AND REQUESTED OF MR. BASS INFORMATION REGARDING THE
NAMES OF UNIT EMPLOYEES WHO WERE AFFECTED. SEVERAL DAYS LATER MR.
YOSHIDA RECEIVED A LIST OF THE EMPLOYEES AFFECTED AND THEIR CURRENT
STATUS. /4/ NO FURTHER INFORMATION WAS SUPPLIED.
IN ADDITION TO THE SEVERAL MEETINGS BETWEEN MSSRS. YOSHIDA AND
FUJIKAWA AND MR. BASS DISCUSSED ABOVE, MR. BASS TESTIFIED THAT DURING
THE PERIOD FROM JANUARY TO JULY, 1973, HE HAD SOME FOURTEEN TELEPHONE
CONVERSATIONS WITH MR. YOSHIDA. IT WAS MR. BASS' TESTIMONY THAT
CONTRACTING OUT WAS DISCUSSED SEVERAL TIMES DURING THE COURSE OF THESE
CONVERSATIONS. THE ONE CONVERSATION OF WHICH MR. BASS HAD SPECIFIC
RECOLLECTION TOOK PLACE ON MAY 23. MR. BASS TESTIFIED THAT ON THAT DATE
MR. YOSHIDA CALLED TO TELL HIM THAT THE UNION WAS INTENDING TO FILE AN
UNFAIR LABOR PRACTICE CHARGE AGAINST THE ACTIVITY BASED ON ITS ALLEGED
FAILURE TO MEET AND CONFER REGARDING THE IMPACT OF THE CONTRACTING OUT.
MR. BASS TESTIFIED THAT HE RESPONDED WITH SURPRISE, REVIEWED HIS EARLIER
COMMUNICATIONS WITH THE UNION ON THE SUBJECT AND INVITED MR. YOSHIDA TO
SIT DOWN AND REVIEW THE REDUCTION-IN-FORCE ROSTER THAT HAD BEEN PREPARED
FOR THE AREAS AFFECTED. ACCORDING TO MR. BASS, MR. YOSHIDA MADE NO MOVE
TO SEEK FURTHER INFORMATION OR TO ACCEPT THE INVITATION TO CONFER.
MR. YOSHIDA DENIED EVER HAVING CALLED MR. BASS TO THREATEN FILING A
CHARGE ON THE CONTRACTING OUT ISSUE BUT DID RECALL HAVING CALLED MR.
BASS SOMETIME IN APRIL TO INFORM HIM THAT AN UNFAIR LABOR PRACTICE
CHARGE WAS GOING TO BE FILED ON AN UNRELATED ISSUE. A CHARGE IN FACT
WAS FILED ON THIS ISSUE BUT LATER DROPPED.
YET ANOTHER CONFLICT IN TESTIMONY AROSE REGARDING A LETTER DATED
MARCH 27 AND SIGNED BY THE ACTIVITY'S EXECUTIVE OFFICER, GEORGE V.
DODSON. THIS LETTER WAS PREPARED BY MR. BASS' STAFF AND WAS ADDRESSED
TO "ALL EMPLOYEES." IT WAS CAPTIONED: "SUBJECT: CONVERSION OF GARAGES
TO CONCESSION ACTIVITIES," AND REPORTED THAT THE AUTO REPAIR ACTIVITIES
AT HICKAM AIR FORCE BASE AND SCHOFIELD BARRACKS WOULD BE TURNED OVER TO
KEICO INTERNATIONAL, INC., EFFECTIVE JUNE 26. THE LETTER WENT ON TO
DETAIL THE PROCEDURES TO BE USED TO ADMINISTER THE REDUCTION-IN-FORCE
(RIF) CAUSED BY THE CONTRACTING OUT. MR. BASS TESTIFIED THAT THIS
LETTER WAS DISTRIBUTED TO ALL EMPLOYEES AT THE AFFECTED WORK SITES
DURING MEETINGS HE CONDUCTED ON APRIL 5. MR. BASS FURTHER TESTIFIED
THAT A COPY OF THE LETTER WAS ALSO SENT BY REGULAR MAIL TO MR. YOSHIDA
AT THE UNION OFFICE. BOTH MR. YOSHIDA AND MR. FUJIKAWA DENY THAT THE
LETTER WAS RECEIVED AT THE UNION OFFICE OR THAT THEY OR ANY OTHER UNION
OFFICIAL RECEIVED ANY WRITTEN CONFIRMATION OF THE RUMORED MANAGEMENT
ACTION.
AS NOTED ABOVE, NONE OF THE MEMORANDA OF THE REGULAR MEETINGS DURING
WHICH MR. BASS RECOLLECTED HAVING DISCUSSED THE CONTRACTING OUR REFLECT
THAT SUCH DISCUSSION WAS HAD. MR. BASS TESTIFIED THAT THE SUBJECT WAS
NOT REPORTED BECAUSE MSSRS. YOSHIDA AND FUJIKAWA DID NOT INDICATE A
DESIRE TO PURSUE THE ISSUE AND APPEARED TO AGREE WITH THE ACTION BEING
TAKEN BY THE ACTIVITY. IN RETROSPECT MR. BASS REGRETTED THAT THE
MEMORANDA DID NOT REFLECT THAT THE SUBJECT WAS DISCUSSED. THE LACK OF
REFERENCES TO THE SUBJECT IN THESE MEMORANDA IS NOT DISPOSITIVE OF THE
FACTUAL ISSUE, HOWEVER, BECAUSE THE TESTIMONY DEMONSTRATED THAT THE
MEMORANDA DID NOT EXHAUSTIVELY REPORT ALL DISCUSSION TOPICS. IT IS
NOTEWORTHY, HOWEVER, THAT THE SIGNIFICANCE TO AFFECTED EMPLOYEES OF THE
CONTRACTING OUT WAS WELL RECOGNIZED BY MR. BASS AND THE UNION
REPRESENTATIVE AND THAT TOPICS OF EQUAL OR LESS SIGNIFICANCE WERE DULY
NOTED IN THE MEMORANDA. THE INESCAPABLE INFERENCE IS THAT HAD THE
SUBJECT BEEN DISCUSSED THE DRAFT MEMORANDA PREPARED BY THE ACTIVITY
WOULD HAVE SO INDICATED OR THAT MR. YOSHIDA WOULD HAVE NOTED THE
OMISSION UPON REVIEW.
LIKEWISE, THE DILIGENCE WITH WHICH MR. YOSHIDA AND MR. FUJIKAWA
REPRESENTED THE INTERESTS OF UNION MEMBERS ON MANY ISSUES, LARGE AND
SMALL, INDICATES TO ME THAT HAD THE ACTIVITY CLEARLY MADE KNOWN ITS
PLANS REGARDING SO MAJOR AN ISSUE AS ITS AUTO REPAIR OPERATIONS THE
UNION WOULD HAVE REQUESTED CONSULTATION ON THE IMPACT OF THE ACTION ON
AFFECTED EMPLOYEES, AND HAD THE ACTIVITY INVITED THE UNION TO CONFER THE
INVITATION WOULD HAVE BEEN ACCEPTED.
ON THE BASIS OF ALL THE EVIDENCE AND MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR I CONCLUDE THAT THE ACTIVITY'S PLANS TO CONTRACT OUT
ITS AUTO REPAIR OPERATION WERE ALLUDED TO IN DISCUSSIONS WITH MSSRS.
YOSHIDA, AND FUJIKAWA IN ONLY A TENTATIVE AND INCOMPLETE FASHION AND
THAT THE UNION WAS NOT ADEQUATELY PUT ON NOTICE OF THE PROPOSED ACTION.
I FIND FURTHER THAT THE ACTIVITY'S MARCH 27, LETTER TO EMPLOYEES ON
THE SUBJECT WAS NOT RECEIVED BY RESPONSIBLE UNION OFFICIALS AND THAT
KNOWLEDGE OF ITS CONTENT CANNOT BE IMPUTED TO THOSE OFFICIALS BY THE
DISTRIBUTION OF THE LETTER TO UNIT EMPLOYEES. IN ADDITION, I FIND THAT
I CANNOT CREDIT MR. BASS' RECOLLECTION OF THE APRIL 23 TELEPHONE
CONVERSATION WITH MR. YOSHIDA DURING WHICH IT WAS REPRESENTED THAT THE
UNION OFFICER WAS INVITED TO EXAMINE THE RIF ROSTER FOR EMPLOYEES IN THE
AUTO REPAIR SECTION AND TO DISCUSS THE IMPACT OF THE PLANNED TRANSFER OF
THE OPERATION TO A PRIVATE CONTRACTOR.
MR. BASS TESTIFIED THAT HE WAS CONCERNED FOR THE WELFARE OF THOSE
EMPLOYEES WHO MIGHT BE DISPLACED BY THE CONTRACTING OUT AND THAT HE TOOK
STEPS TO FIND THEM OTHER EMPLOYMENT POSITIONS. I FIND NO CAUSE TO DOUBT
MR. BASS' TESTIMONY IN THIS REGARD AND FIND NO EVIDENCE OF ANTI-UNION
ANIMUS IN THE CONDUCT OF THE ACTIVITY. AS STATED ABOVE, HOWEVER, I FIND
THAT THE UNION WAS NOT FULLY APPRISED OF THE PROPOSED ACTION PRIOR TO
ITS IMPLEMENTATION.
THE COMPLAINT CHARGES THAT THE ACTIVITY VIOLATED SECTION 19(A)(6) OF
THE EXECUTIVE ORDER /5/ BY CONTRACTING OUT TO A PRIVATE COMPANY WORK
WHICH HAD BEEN PERFORMED BY ACTIVITY EMPLOYEES WITHOUT CONSULTING,
CONFERRING OR NEGOTIATING WITH THE EXCLUSIVE REPRESENTATIVE REGARDING
THE IMPACT OF THAT ACTION ON UNIT EMPLOYEES.
THE ORDER CLEARLY CONTEMPLATES THAT A DECISION TO CONTRACT OUT
CERTAIN OF ITS OPERATIONS IS NOT A SUBJECT UPON WHICH AN AGENCY MUST
"CONFER IN GOOD FAITH" WITH THE EXCLUSIVE REPRESENTATIVE. SECTION 11(B)
/6/ PLAINLY EXCEPTS A SUBJECT OF THIS NATURE FROM THE GENERAL DUTY TO
BARGAIN IMPOSED BY SECTION 11(A). /7/ JUST AS ASSUREDLY, HOWEVER, THE
LANGUAGE OF 11(B) PROVIDES THAT THE DUTY TO CONFER, CONSULT, OR
NEGOTIATE ENFORCED BY SECTION 19(A)(6) MAY BE IMPOSED ON AN ACTIVITY
REGARDING THE IMPACT OF AN ACTION WHICH IS OTHERWISE NONBARGAINABLE.
THIS PRINCIPLE HAS BEEN RECOGNIZED BY THE ASSISTANT SECRETARY AND THE
FEDERAL LABOR RELATIONS COUNCIL IN SEVERAL CASES, SEE FOR EXAMPLE
IMMIGRATION AND NATURALIZATION SERVICE, FLRC NO. 70A-10 (APRIL 15,
1971), PLUM ISLAND ANIMAL DISEASE LABORATORY, FLRC NO. 71A-11 (JULY 9,
1971,) GRIFFISS AIR FORCE BASE, FLRC NO. 71A-30 (APRIL 19, 1973), NORTON
AIR FORCE BASE, A/SLMR NO. 261 (APRIL 30, 1973), U.S. DEPARTMENT OF
INTERIOR, BUREAU OF INDIAN AFFAIRS, A/SLMR NO. 341 (JANUARY 9, 1974),
NEW MEXICO AIR NATIONAL GUARD, A/SLMR NO. 362 (FEBRUARY 28, 1974).
H.R.E. DOES NOT CONTEST THIS READING OF THE ORDER OR DENY THE
APPLICABILITY OF THE DUTY TO BARGAIN REGARDING IMPACT ISSUES UNDER
CERTAIN CIRCUMSTANCES. RATHER, ON THE BASIS OF MR. BASS' TESTIMONY,
H.R.E. ARGUES THAT THE UNION WAS FULLY APPRISED OF THE ACTIVITY'S PLANS
FOR "ONTRACTING OUT WELL IN ADVANCE OF THEIR EXECUTION AND THAT THE
UNION FAILED TO REQUEST CONSULTATION ON NEGOTIABLE IMPACT ISSUES.
THEREFORE, THE ACTIVITY CONCLUDES, NO SECTION 19(A)(6) VIOLATION CAN BE
FOUND. IN SUPPORT OF ITS CONTENTION THE ACTIVITY CITES TO NORTON AIR
FORCE BASE, SUPRA, WHEREIN THE ASSISTANT SECRETARY ADOPTED THE
CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT NO 19(A)(6) VIOLATION
COULD BE FOUND FOR FAILING TO MEET AND CONFER ON NEGOTIABLE IMPACT
ISSUES WHERE THE UNION WAS GIVEN FOREWARNING OF THE ACTIVITY ACTION AND
HAD AMPLE OPPORTUNITY TO REQUEST BARGAINING BUT FAILED TO DO SO.
APPLYING THE RATIONALE OF NORTON AIR FORCE BASE TO THE FACTS AS FOUND
ABOVE I AM COMPELLED TO CONCLUDE, CONTRARY TO THE ACTIVITY'S
CONTENTIONS, THAT THE ORDER WAS VIOLATED BY THE ACTIVITY'S FAILURE
ADEQUATELY TO APPRISE THE UNION OF ITS INTENTIONS, SO AS TO PUT THE
UNION ON NOTICES THAT AN OPPORTUNITY FOR BARGAINING EXISTED. THIS IS
NOT A CASE, AS WAS NORTON AIR FORCE BASE, SUPRA, WHERE A UNION "SAT" ON
ITS RIGHTS. RATHER, I HAVE FOUND THAT THE UNION WAS EAGER FOR
INFORMATION ON THE PROPOSED ACTION AND WAS ASSURED BY THE ACTIVITY THAT
IT WOULD BE KEPT INFORMED OF DEVELOPMENTS. WHEN THE CONTRACTING OUT WAS
ACCOMPLISHED AND UNIT EMPLOYEES SUFFERED THE ADVERSE EFFECTS OF THE
ATTENDANT RIF ACTION WITHOUT THE AID AND SUPPORT OF THEIR ELECTED
REPRESENTATIVE, AS CONTEMPLATED BY THE ORDER, THEY DID SO AS A RESULT OF
THE ACTIVITY'S VIOLATION OF SECTION 19(A)(6).
UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW AND
PURSUANT TO SECTION 203.22(A) OF THE RULES AND REGULATIONS, 29 C.F.R.
203.22(A), I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
ORDER DESIGNED TO EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE RULES AND REGULATIONS, 29 C.F.R. 203.25(B), THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY
ORDERS THAT HAWAII REGIONAL EXCHANGE, PACIFIC EXCHANGE SYSTEM, ARMY AND
AIR FORCE EXCHANGE SERVICE SHALL:
1. CEASE AND DESIST FROM--
REFUSING TO CONSULT, CONFER OR NEGOTIATE WITH THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL 1186, WITH REGARD TO THE ADVERSE EFFECTS SUFFERED BY
UNIT EMPLOYEES AS A RESULT
OF THE CONTRACTING OUT OF CERTAIN AUTO REPAIR OPERATIONS.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND
PROVISIONS OF THE EXECUTIVE ORDER:
(A) UPON REQUEST, MEET AND CONFER, CONSULT OR NEGOTIATE WITH THE
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL 1186, REGARDING THE IMPACT OF
CONTRACTING OUT ON AFFECTED
EMPLOYEES.
(B) POST AT ITS FACILITIES AT THE HAWAII REGIONAL EXCHANGE, HONOLULU,
HAWAII, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS
THEY SHALL BE SIGNED BY THE
HAWAII REGIONAL EXCHANGE EXECUTIVE AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR SIXTY (60)
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE EXECUTIVE SHALL TAKE
REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 202.26 OF THE RULES AND REGULATIONS, 29
C.F.R. 202.26, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN TWENTY (20 ) DAYS OF THE DATE
OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: SEPTEMBER 6, 1974
WASHINGTON, D.C.
WE WILL NOT REFUSE TO CONFER, CONSULT, OR NEGOTIATE WITH THE
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1186, REGARDING
THE IMPACT ON AFFECTED EMPLOYEES OF THE CONTRACTING OUT OF CERTAIN AUTO
REPAIR OPERATIONS.
WE WILL, UPON REQUEST, MEET AND CONFER, CONSULT, OR NEGOTIATE WITH
THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1186,
REGARDING THE IMPACT ON AFFECTED EMPLOYEES OF THE CONTRACTING OUT OF
CERTAIN AUTO REPAIR OPERATIONS.
DATED:
/1/ JOINT EXHIBIT NO. 1.
/2/ JOINT EXHIBIT NO. 1B.
/3/ UNLESS OTHERWISE NOTED ALL DATES HEREAFTER MENTIONED WERE IN
1973.
/4/ COMPLAINANT'S EXHIBIT NO. 6.
/5/ SECTION 19 PROVIDES THAT:
(A) AGENCY MANAGEMENT SHALL NOT
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS ORDER.
/6/ SECTION 11(B) READS AS FOLLOWS:
IN PRESCRIBING REGULATIONS RELATING TO PERSONNEL POLICIES AND
PRACTICES AND WORKING CONDITIONS, AN AGENCY SHALL HAVE DUE REGARD FOR
THE OBLIGATION IMPOSED BY PARAGRAPH (A) OF THIS SECTION. HOWEVER, THE
OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE MATTERS WITH RESPECT TO
THE MISSION OF AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE NUMBER OF
EMPLOYEES; AND THE NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES
ASSIGNED TO AN ORGANIZATIONAL UNIT, WORK PROJECT OR TOUR OF DUTY; THE
TECHNOLOGY OF PERFORMING ITS WORK; OR ITS INTERNAL SECURITY PRACTICES.
THIS DOES NOT PRECLUDE THE PARTIES FROM NEGOTIATING AGREEMENTS PROVIDING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT
OF REALIGNMENT OF WORK FORCES OR TECHNOLOGICAL CHANGE.
/7/ SECTION 11(A) READS AS FOLLOWS:
AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES, SHALL MEET AT
REASONABLE TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, SO FAR
AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY
POLICIES AND REGULATIONS, A NATIONAL OR OTHER CONTROLLING AGREEMENT AT A
HIGHER LEVEL IN THE AGENCY, AND THIS ORDER. THEY MAY NEGOTIATE AN
AGREEMENT, OR ANY QUESTION ARISING THEREUNDER; DETERMINE APPROPRIATE
TECHNIQUES, CONSISTENT WITH SECTION 17 OF THIS ORDER, TO ASSIST IN SUCH
NEGOTIATION; AND EXECUTE A WRITTEN AGREEMENT OR MEMORANDUM OF
UNDERSTANDING.
4 A/SLMR 450; P. 763; CASE NO. 41-3562(CA); OCTOBER 31, 1974.
VETERANS ADMINISTRATION,
BILOXI VETERANS ADMINISTRATION CENTER,
BILOXI, MISSISSIPPI
A/SLMR NO. 450
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2208
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(2) OF EXECUTIVE ORDER 11491 BY ITS ACTIONS IN DISCHARGING A
PROBATIONARY EMPLOYEE FOR PARTICIPATING IN THE FILING OF A GRIEVANCE.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THE COMPLAINT
BASED ON THE CONCLUSION THAT ANY CONNECTION BETWEEN THE FILING OF THE
GRIEVANCE (WHICH, ACCORDING TO THE RECORD, WAS FILED UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE) AND THE PROBATIONARY EMPLOYEE'S
SEPARATION WAS A MERE COINCIDENCE. IN THIS REGARD, THE ADMINISTRATIVE
LAW JUDGE FOUND THAT: (1) IT IS THE GENERAL POLICY OF THE RESPONDENT TO
REVIEW ALL PROBATIONARY EMPLOYEES APPROXIMATELY 10 MONTHS AFTER THEIR
INITIAL EMPLOYMENT; (2) AS TO THE PROBATIONARY EMPLOYEE IN QUESTION,
THE DISENCHANTMENT OF HER SUPERVISOR REGARDING HER ATTITUDE TOWARDS
PERFORMING CERTAIN DUTIES PRE-DATED THE FILING OF THE GRIEVANCE; (3) OF
THE SIX EMPLOYEES WHO SIGNED THE GRIEVANCE, TWO OTHER PROBATIONARY
EMPLOYEES ACHIEVED PERMANENT STATUS WITHOUT DIFFICULTY AND ONE PERMANENT
EMPLOYEE WAS SUCCESSFUL IN BEING REEMPLOYED AFTER A VOLUNTARY
SEPARATION; AND (4) THE PROBATIONARY EMPLOYEE IN QUESTION PLAYED NO
MORE OF AN ACTIVE ROLE IN THE PRESENTATION OR DISCUS.ION OF THE
GRIEVANCE THAN THE OTHER SIGNERS OF THE GRIEVANCE.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED.
VETERANS ADMINISTRATION,
BILOXI VETERANS ADMINISTRATION CENTER,
BILOXI, MISSISSIPPI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2208
ON JULY 25, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 41-3562(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1974
IN THE MATTER OF:
VETERANS ADMINISTRATION
BILOXI VETERANS ADMINISTRATION CENTER
BILOXI, MISSISSIPPI
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2208
RICHARD J. JONES, ESQUIRE
OFFICE OF GENERAL COUNSEL
VETERANS ADMINISTRATION
WACO, TEXAS
R. W. UPCHURCH, ESQUIRE
OFFICE OF GENERAL COUNSEL
VETERANS ADMINISTRATION
JACKSON, MISSISSIPPI
MR. CHARLES STENSLIE
LABOR RELATIONS, V.A.
CENTRAL OFFICE
WASHINGTON, D.C.
MR. GLEN J. PETERSON
P.O. BOX BB
BOERNE, TEXAS
MR. ALPHONSO GARCIA
5911 DWYER ROAD
NEW ORLEANS, LOUISIANA
MR. ROY ENTREKIN
ROUTE 1, BOX 231
OCEAN SPRINGS, MISSISSIPPI
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON DECEMBER 10, 1973,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY LOCAL 2208, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO), (HEREINAFTER CALLED THE
UNION), AGAINST THE VETERANS ADMINISTRATION, BILOXI VETERANS
ADMINISTRATION CENTER, BILOXI, MISSISSIPPI, (HEREINAFTER CALLED THE
AGENCY OR RESPONDENT), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED ON
APRIL 15, 1974, BY THE REGIONAL DIRECTOR FOR THE ATLANTA, GEORGIA,
REGION.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS
ACTIONS IN DISCHARGING EMMA JEAN DOMBROWSKI FOR INSTIGATING AND FILING A
GRIEVANCE.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JUNE 11, 1974, IN
BILOXI, MISSISSIPPI. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, /1/ INCLUDING MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, AND THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING I MAKE THE FOLLOWING CONCLUSIONS AND RECOMMENDATIONS:
EMMA JEAN DOMBROWSKI WAS HIRED BY THE RESPONDENT ON NOVEMBER 6, 1972,
AS A GS-3 TELEPHONE OPERATOR AND WORKED AT SUCH POSITION UNTIL ON OR
ABOUT SEPTEMBER 1, 1973, AT WHICH TIME SHE WAS SEPARATED PURSUANT TO
NOTICE DULY SERVED UPON HER BY THE RESPONDENT ON OR ABOUT AUGUST 20,
1974. INASMUCH AS THE CIVIL SERVICE REGULATIONS PROVIDE THAT THE FIRST
YEAR OF HER THREE YEAR APPOINTMENT WAS TO BE PROBATIONARY SHE WAS NOT
ENTITLED TO ANY RIGHT OF APPEAL FROM THE NOTICE OF SEPARATION.
DURING HER PERIOD OF EMPLOYMENT WITH THE RESPONDENT, MRS.
DOMBROSWKI, AS WELL AS THE OTHER APPROXIMATELY SEVEN OTHER TELEPHONE
OPERATORS EMPLOYED BY THE RESPONDENT IN THE GULFPORT-BILOXI AREA, WAS
UNDER THE IMMEDIATE SUPERVISION OF LUCILLE LADNIER AND JACQUELINE
NEWMAN, CHIEF AND ASSISTANT CHIEF OF OFFICE OPERATIONS, RESPECTIVELY.
ALTHOUGH CLASSIFIED AS A TELEPHONE OPERATOR, MRS. DOMBROWSKI, AS WELL
AS THE OTHER TELEPHONE OPERATORS, ACCORDING TO HER OWN ADMISSION, THE
JOB DESCRIPTION FOR A GS-3 OPERATOR, AND THE CREDITED TESTIMONY OF MRS.
LADNIER, WAS EXPECTED TO PERFORM A NUMBER OF RELATED CLERICAL DUTIES,
INCLUDING REVISING DIRECTORIES, PREPARING TELEPHONE ORDERS, PREPARING
RECEIPTS FOR LOST AND FOUND, MAINTAINING CUSTODY OF LOST AND FOUND
ITEMS, OPERATING THE PAGING SYSTEM AND PREPARING TROUBLE LOGS WITH
REGARD TO TROUBLE ON THE SWITCHBOARD, ALL OF WHICH ENTAIL SOME DEGREE OF
TYPING.
IN APRIL 1973, MRS. LADNIER HELD A DISCUSSION WITH MRS. DOMBROWSKI
WHEREIN HER JOB PERFORMANCE WAS REVIEWED. DURING THE COURSE OF THE
REVIEW MRS. LADNIER POINTED OUT MRS. DOMBROWSKI'S DEFICIENCIES AS WELL
AS HER ATTRIBUTES, STRESSING AMONG OTHER THINGS, THAT MRS. DOMBROWSKI
MADE NO EFFORT TO WORK AT THE ADDITIONAL DUTIES ASSIGNED TO THE
OPERATORS WHEN THEY WERE NOT ACTUALLY OPERATING THE SWITCHBOARD.
ON OR ABOUT APRIL 30, 1973, MRS. LADNIER WAS CALLED UPON TO MEDIATE A
DISPUTE BETWEEN MRS. DOMBROWSKI AND MILDRED HINSON WITH RESPECT TO THE
LOST AND FOUND DUTIES ASSIGNED TO THE OPERATORS. MRS. LADNIER CONCLUDED
THAT THE DIFFICULTY STEMMED FROM MRS. DOMBROWSKI'S ATTITUDE AND
RELUCTANCE TO PARTICIPATE IN THE CLERICAL DUTIES.
ON JUNE 25, 1973, THE EIGHT TELEPHONE OPERATORS WERE ENGAGED IN A
REVISION OF THE TELEPHONE DIRECTORY. UPON BEING ASSIGNED A TWO PAGE
RETYPING ASSIGNMENT MRS. DOMBROWSKI RELUCTANTLY TOOK THE WORK AND
OPINED TO MRS. LADNIER THAT TELEPHONE OPERATORS SHOULD NOT BE ASSIGNED
TYPING DUTIES. /2/
ON OR ABOUT JULY 22, 1973, SIX OF THE EIGHT TELEPHONE OPERATORS
SIGNED AND TOGETHER PRESENTED TO W. F. STOKES, CHIEF OF MEDICAL
ADMINISTRATION SERVICE, A "PETITION FOR GRIEVANCE HEARING" WHEREIN THE
EMPLOYEES COMPLAINED THAT THEY WERE "BEING ASSIGNED DUTIES THAT ARE
UNRELATED TO OUR JOB DESCRIPTION." IN ADDITION TO MRS. DOMBROWSKI, TWO
OTHER TELEPHONE OPERATORS WHOSE NAMES APPEARED ON THE PETITION WERE ALSO
PROBATIONARY EMPLOYEES. OTHER THAN MRS. DOMBROWSKI, THE FIVE REMAINING
OPERATORS SIGNING THE PETITION ARE STILL EMPLOYED BY RESPONDENT. IN
THIS LATTER REGARD, THE ONLY TWO OTHER TELEPHONE OPERATORS TESTIFYING AT
THE HEARING, POLA CANNEDY AND MARION GEAN SHOEMAKER ACKNOWLEDGED THAT
THEY NOW ENJOY BETTER EMPLOYMENT PROSPECTS. TELEPHONE OPERATOR
SHOEMAKER, WHO WAS A PERMANENT EMPLOYEE AT THE TIME THE GRIEVANCE WAS
FILED, FURTHER TESTIFIED THAT SHE VOLUNTARILY LEFT THE RESPONDENT'S
EMPLOY IN JANUARY 1974 TO WORK AT KESSLER AIR FORCE BASE AND, UPON
CHANGING HER MIND SOME SIX WEEKS LATER, ENCOUNTERED NO DIFFICULTY
WHATSOEVER IN RETURNING TO RESPONDENT'S INSTALLATION WHERE SHE IS
CURRENTLY EMPLOYED. LASTLY, ACCORDING TO SHOEMAKER AND CANNEDY, ALL
EMPLOYEES PLAYED AN EQUAL PART IN THE PRESENTATION OF THE GRIEVANCE TO
STOKES.
THEREAFTER, BY MEMORANDUM DATED AUGUST 14, 1973, DIRECTED TO THE
PRESIDENT OF THE UNION, STOKES DENIED THE GRIEVANCE. THE MEMORANDUM,
IDENTIFIED IN THE RECORD AS COMPLAINANT EX. NO. 1, DESCRIBES THREE
MEETINGS HELD ON THE GRIEVANCE AND THE PERSONS IN ATTENDANCE AT SAME.
ACCORDING TO THE MEMORANDUM, ALL SIX OF THE TELEPHONE OPERATORS SIGNING
THE AGREEMENT APPEARED AT ALTERNATE TIMES AT THE THREE MEETINGS HELD ON
THE GRIEVANCE.
ON AUGUST 14, 1973, THE SAME DAY THAT STOKES ISSUED HIS REPLY TO THE
GRIEVANCE, STOKES ALSO DIRECTED A MEMORANDUM TO THE "CHIEF, PERSONNEL
SERVICE," WHEREIN HE REQUESTED THAT MRS. DOMBROWSKI WHO HE FOUND TO BE
"RESENTFUL OF SUPERVISION" BE SEPARATED FROM THE AGENCY, EFFECTIVE
SEPTEMBER 1, 1973. ON AUGUST 20, 1973, R. N. HOUSTON, CHIEF, PERSONNEL
SERVICE, OFFICIALLY NOTIFIED DOMBROWSKI THAT HER EMPLOYMENT WOULD BE
TERMINATED EFFECTIVE SEPTEMBER 1, 1973.
ACCORDING TO THE UNCONTROVERTED TESTIMONY IN THE RECORD, IT IS THE
POLICY OF THE RESPONDENT TO REVIEW THE JOB PERFORMANCE OF ALL
PROBATIONARY EMPLOYEES DURING THE TENTH MONTH OF EMPLOYMENT FOR PURPOSES
OF DETERMINING WHETHER THEY WILL BE RETAINED AFTER THE PASSAGE OF THEIR
ONE YEAR PROBATIONARY PERIOD. PURSUANT TO THIS POLICY THE RESPONDENT'S
COMPUTER HAS BEEN PROGRAMMED TO PUNCH OUT AN EVALUATION CARD OR ORDER ON
EACH PROBATIONARY EMPLOYEE ABOUT 10 MONTHS AFTER THE INITIAL DATE OF
EMPLOYMENT. IN MRS. DOMBROWSKI'S CASE THE CARD WAS PUNCHED OUT AND
SUBMITTED TO MRS. LADNIER ON OR ABOUT AUGUST 1, 1973, APPROXIMATELY TEN
MONTHS AFTER MRS. DOMBROWSKI'S EMPLOYMENT DATE OF NOVEMBER 6, 1972.
UPON RECEIVING THE CARD OR FORM CALLING FOR MRS. DOMBROWSKI'S
APPRAISAL, MRS. LADNIER CONFERRED WITH HER ASSISTANT, MRS. NEWMAN, AND
DECIDED THAT THEY WERE IN MUTUAL AGREEMENT THAT MRS. DOMBROWSKI'S
RESENTMENT OF SUPERVISION AND THE ASSIGNMENT OF CLERICAL WORK MADE HER
AN UNDESIRABLE EMPLOYEE. FOLLOWING THEIR DECISION IN THIS RESPECT THEY
CONFERRED WITH W. F. STOKES WHO DRAFTED THE MEMORANDUM DATED AUGUST 14,
1973, CITED ABOVE.
IT IS WELL ESTABLISHED THAT THE FILING OF A GRIEVANCE FALLS WITHIN
THE RIGHTS GENERALLY ENUMERATED IN SECTION 1(A) OF THE EXECUTIVE ORDER
AND THE ABRIDGEMENT OF SAME CONSTITUTES AN UNFAIR LABOR PRACTICE WITHIN
THE MEANING OF SECTION 19(A)(1). DEPARTMENT OF DEFENSE, ARKANSAS
NATIONAL GUARD A/SLMR NO. 53; NATIONAL LABOR RELATIONS BOARD, REGION
17, FOOTNOTE 3, A/SLMR NO. 295. ACCORDINGLY, SHOULD IT BE DETERMINED
THAT THE SEPARATION OF MRS. DOMBROWSKI WAS IN ANYWAY RELATED TO HER
ACTION IN FILING A GRIEVANCE, THEN A VIOLATION OF SECTION 19(A)(1) AND
(2) OF THE ORDER IS ESTABLISHED. HOWEVER, FOR THE REASONS SET OUT
BELOW, I FIND THAT SUCH IS NOT THE CASE AND WILL THEREFORE RECOMMEND
DISMISSAL OF THE COMPLAINT.
IN THE INSTANT CASE, IT IS CLEAR THAT MRS. LADNIER'S DISENCHANTMENT
WITH MRS. DOMBROWSKI'S ATTITUDE TOWARDS PERFORMING CLERICAL DUTIES
PRE-DATED THE FILING OF THE GRIEVANCE UPON WHICH MRS. DOMBROWSKI AND
FIVE OTHER TELEPHONE OPERATORS AFFIXED THEIR SIGNATURES. WHILE IT IS
TRUE THAT THE SUBJECT MATTER OF THE GRIEVANCE WAS RELATED TO THE GROUNDS
UTILIZED BY THE RESPONDENT IN SUPPORT OF MRS. DOMBROWSKI'S SEPARATION, I
FIND THE EVIDENCE TO BE INSUFFICIENT TO SUPPORT A FINDING THAT THE
FILING OF THE GRIEVANCE PLAYED ANY PART IN RESPONDENT'S DECISION TO
SEPARATE MRS. DOMBROWSKI. IN REACHING THIS CONCLUSION I NOTE THAT THE
TWO OTHER PROBATIONARY EMPLOYEES WHOSE NAMES APPEARED ON THE GRIEVANCE
HAVE ACHIEVED PERMANENT STATUS WITHOUT DIFFICULTY, ANOTHER OPERATOR
APPEARING THEREON HAS BEEN SUCCESSFULLY REEMPLOYED AFTER A VOLUNTARY
SEPARATION, THAT MRS. DOMBROWSKI DID NOT PLAY ANY MORE ACTIVE ROLE IN
THE PRESENTATION OR DISCUSSION OF THE GRIEVANCE THAN THE OTHER FIVE
TELEPHONE OPERATORS LISTED THEREON, AND THAT IT WAS THE GENERAL POLICY
OF THE RESPONDENT TO REVIEW ALL PROBATIONARY EMPLOYEES APPROXIMATELY 10
MONTHS AFTER THEIR INITIAL EMPLOYMENT. IN VIEW OF THE FOREGOING, I FIND
THAT ANY CONNECTION BETWEEN THE FILING OF THE GRIEVANCE AND MRS.
DOMBROWSKI'S SEPARATION WAS A MERE COINCIDENCE.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, I HEREBY
RECOMMEND TO THE ASSISTANT SECRETARY THAT THE COMPLAINT HEREIN AGAINST
RESPONDENT BE DISMISSED IN ITS ENTIRETY.
DATED: JULY 25, 1974
WASHINGTON, D.C.
/1/ RESPONDENT'S MOTION TO CORRECT ERRORS IN THE TRANSCRIPT IS
GRANTED IN THE FOLLOWING RESPECTS: PAGE 38, LINE 10, THE SPELLING OF
THE WITNESS' SURNAME IS CHANGED TO "CANNEDY"; PAGE 42, LINE 24, "NO" IS
CHANGED TO "NOT"; PAGE 48, LINE 22, "AND" IS CHANGED TO "THAT",
/2/ THE FOREGOING SUMMARY OF FACTS IS BASED UPON THE UNCONTROVERTED
AND CREDITED TESTIMONY OF MRS. LADNIER. MRS. DOMBROWSKI WHO
ACKNOWLEDGED BOTH THE COUNSELING AND/OR EVALUATION MEETING IN EARLY
APRIL AND THE MEETING RELATIVE TO THE DISPUTE WITH MILDRED HINSON PLACES
THE LATTER MEETING AS OCCURRING ON OR ABOUT MAY 4, 1974.
4 A/SLMR 449; P. 758; CASE NO. 72-4268; OCTOBER 31, 1974.
VETERANS ADMINISTRATION,
WADSWORTH HOSPITAL CENTER,
LOS ANGELES, CALIFORNIA
A/SLMR NO. 449
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061, AFL-CIO
(COMPLAINANT), ALLEGING THAT THE RESPONDENT ACTIVITY VIOLATED SECTION
19(A)(1), (2) AND (6) OF THE ORDER BY CAUSING THE ARREST OF THE LOCAL
PRESIDENT AND ANOTHER OFFICIAL OF THE COMPLAINANT ON MARCH 21, 1973; BY
CAUSING THE ARREST OF THE SAME LOCAL OFFICIAL ON APRIL 3, 1973; AND BY
REFUSING TO CONSULT WITH THE COMPLAINANT REGARDING THE ARREST OF TWO
UNIT EMPLOYEES ON MARCH 20, 1973. THE RESPONDENT CONTENDS THAT IT HAD
NOTHING TO DO WITH THE ARRESTS OF THE COMPLAINANT'S OFFICIALS WHICH
RESULTED FROM A COMPLAINT FILED B Y ONE OF ITS CRIMINAL INVESTIGATORS
ALLEGING THAT THE OFFICIALS OBSTRUCTED THE ARREST OF TWO UNIT EMPLOYEES
WHO HAD BEEN INDICTED BY A FEDERAL GRAND JURY FOR BOOKMAKING. FURTHER,
THE RESPONDENT CONTENDS THAT IT NEVER REFUSED TO CONSULT REGARDING THE
ARREST OF THE TWO UNIT EMPLOYEES.
THE ADMINISTRATIVE LAW JUDGE FOUND NO INDICATION THAT THE RESPONDENT
HAD ANYTHING TO DO WITH ANY OF THE ARRESTS, OR THAT THERE WAS ANY
INTIMATION THAT ANY OF THE INCIDENTS WERE MOTIVATED BY ANTI-UNION
ANIMUS. THUS, HE DETERMINED THAT THE COMPLAINT, WHICH RESULTED IN THE
ARREST OF THE COMPLAINANT'S OFFICIALS, WAS FILED BY THE CRIMINAL
INVESTIGATOR ON HIS OWN INITIATIVE, AND THERE WAS NO INDICATION THAT ANY
OF THE RESPONDENT'S POLICE, INVOLVED IN THE ARRESTS, ACTED OTHER THAN IN
ACCORDANCE WITH WHAT THEY BELIEVED TO BE THEIR DUTY. IN ADDITION, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE COMPLAINANT'S OFFICIALS IN
ASSISTING THE UNIT EMPLOYEES, WHO WERE BEING ARRESTED FOR A CRIME
UNRELATED TO THEIR EMPLOYMENT, WERE NOT EXERCISING RIGHTS ASSURED BY THE
ORDER, NOR WERE THEY FULFILLING THE OBLIGATION IMPOSED BY SECTION 10(E)
OF THE ORDER ON THE EXCLUSIVE REPRESENTATIVE TO REPRESENT EMPLOYEES.
THEREFORE, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THERE WAS NO
VIOLATION OF SECTION 19(A)(1). MOREOVER, HE FOUND NO EVIDENCE OF
DISCRIMINATION WITH RESPECT TO ANY CONDITION OF EMPLOYMENT AND,
THEREFORE, NO VIOLATION OF SECTION 19(A)(2). FINALLY, HE FOUND NO
EVIDENCE THAT THE RESPONDENT EVER REFUSED TO CONSULT OR CONFER REGARDING
THE ARREST OF THE TWO UNIT EMPLOYEES FOR BOOKMAKING, OR WAS EVER ASKED
TO DO SO.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THE CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
VETERANS ADMINISTRATION,
WADSWORTH HOSPITAL CENTER,
LOS ANGELES, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1061, AFL-CIO
ON SEPTEMBER 4, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4268 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1974
VETERANS ADMINISTRATION
WADSWORTH HOSPITAL CENTER
LOS ANGELES, CALIFORNIA
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 1061
APPEARANCES:
DOLPH DAVID SAND, ESQ.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20036
STEPHAN L. SHOCKET, ESQ.
OFFICE OF THE GENERAL COUNSEL
VETERANS ADMINISTRATION
WASHINGTON, D.C. 20420
MICHAEL RUDD
LABOR RELATIONS OPERATIONS DIVISION
VETERANS ADMINISTRATION
WASHINGTON, D.C. 20420
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED MAY 20, 1973 AND FILED MAY 23, 1973. THE
COMPLAINT ALLEGES VIOLATIONS BY THE RESPONDENT OF SECTIONS 19(A)(1),
(2), AND (6) OF THE EXECUTIVE ORDER. THE VIOLATIONS WERE ALLEGED TO
CONSIST IN PART OF CAUSING THE PRESIDENT AND ANOTHER OFFICIAL OF LOCAL
1061 TO BE ARRESTED ON MARCH 21, 1973, THEREBY INTERFERING WITH THOSE
OFFICIALS IN THE EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE ORDER,
DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION, AND SUBJECTING THE
OFFICIALS TO RIDICULE AND ONE OF THEM TO HARASSMENT AND FORCIBLE
MANHANDLING TO THE POINT OF PHYSICAL DISABILITY. THE VIOLATION WAS
ALLEGED TO CONSIST FURTHER OF AGAIN ARRESTING ONE OF THE OFFICIALS ON
APRIL 3, 1973, THEREBY HOLDING LOCAL 1061 UP TO RIDICULE. THE
VIOLATIONS WERE ALLEGED TO CONSIST ALSO OF REFUSING TO CONSULT OR CONFER
WITH THE COMPLAINANT CONCERNING THE RIGHTS OF TWO OTHER MEMBERS OF THE
COMPLAINANT CONCERNING THEIR ARREST ON MARCH 20, 1973.
ON JUNE 15, 1973, THE RESPONDENT FILED AN ANSWER TO THE COMPLAINT
DENYING ANY VIOLATIONS OF THE EXECUTIVE ORDER.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. PURSUANT TO A NOTICE OF HEARING ISSUED BY
THE ASSISTANT REGIONAL DIRECTOR ON APRIL 13, 1974 AND AN ORDER
RESCHEDULING HEARING DATED APRIL 18, 1974, HEARINGS WERE HELD ON MAY 30
AND 31, 1974 IN LOS ANGELES, CALIFORNIA. BOTH PARTIES WERE REPRESENTED
BY COUNSEL.
AT THE CONCLUSION OF THE HEARING THE TIME FOR FILING BRIEFS WAS
EXTENDED TO JULY 5, 1974. THE RESPONDENT FILED A BRIEF ON JULY 3, 1974.
THE COMPLAINANT DID NOT FILE A BRIEF.
THE COMPLAINANT IS AND AT ALL RELEVANT TIMES WAS THE EXCLUSIVE
REPRESENTATIVE OF THE RESPONDENT'S NON-SUPERVISORY, NON-MANAGERIAL, AND
NON-PROFESSIONAL EMPLOYEES, INCLUDING GUARDS AND POLICE OFFICERS. THE
POLICE OFFICERS HAVE AUTHORITY TO MAKE ARRESTS ON THE PREMISES OF THE
RESPONDENT INCLUDING THE AUTHORITY TO MAKE ARRESTS, UPON REQUEST OF THE
UNITED STATES ATTORNEY OR ONE OF HIS ASSISTANTS, OF EMPLOYEES OF THE
RESPONDENT FOR WHOSE ARREST A WARRANT HAS BEEN ISSUED.
ON MARCH 20, 1973, ANDREW E. EVANS, AN EMPLOYEE OF THE RESPONDENT
WITH POLICE FUNCTIONS, WAS CALLED BY THE UNITED STATES ATTORNEY WHO TOLD
HIM THAT A FEDERAL GRAND JURY HAD RETURNED AN INDICTMENT FOR BOOKMAKING
ON FEDERAL PREMISES AGAINST STELLA FERGUSON AND CORRINE MITCHELL,
EMPLOYEES OF THE RESPONDENT. THE U.S. ATTORNEY TOLD EVANS THAT A
WARRANT HAD BEEN ISSUED FOR THE ARREST OF FERGUSON AND MITCHELL AND
REQUESTED THAT THEY BE ARRESTED AND BROUGHT TO THE OFFICE OF THE UNITED
STATES MARSHAL. FERGUSON AND MITCHELL WERE EMPLOYED IN THE CANTEEN OF
THE RESPONDENT, AND WERE MEMBERS OF THE COMPLAINANT. EVANS CALLED THE
CANTEEN MANAGER AND TOLD HIM HE WAS COMING TO ARREST FERGUSON AND
MITCHELL. THEY CALLED RHEA BUTLER, THE PRESIDENT OF LOCAL 1061, AND
EXCITEDLY TOLD HER THEY WERE BEING ARRESTED. SHE CALLED JOHN A.
ZDUNIAK, AN OFFICER OF THE LOCAL WHOSE OFFICE WAS CLOSER TO THE CANTEEN
THAN BUTLER'S, AND TOLD HIM TO GO TO THE CANTEEN TO ASSIST TWO UNION
MEMBERS WHO WERE BEING ARRESTED, AND THAT SHE WOULD MEET HIM THERE.
IT WAS THE PRACTICE OF RESPONDENT'S POLICE, WHEN ARRESTING A FEMALE,
TO HAVE A FEMALE POLICE OFFICER PRESENT. EVANS ASKED LOIS J. COPPAGE, A
POLICE OFFICER, TO ASSIST HIM IN THE ARREST OF FERGUSON AND MITCHELL.
THEY WENT TO THE CANTEEN OFFICE WHERE THEY MET FERGUSON AND MITCHELL.
ZDUNIAK CAME IN AND ASKED EVANS TO WAIT FOR BUTLER'S ARRIVAL.
BUTLER ARRIVED WITHIN A FEW MINUTES AND ASKED WHAT WAS GOING ON.
EVANS TOLD HER AND ZDUNIAK IT WAS A CRIMINAL MATTER, NOT A UNION MATTER.
BUTLER ASKED TO SEE THE WARRANTS FOR THE ARREST OF FERGUSON AND
MITCHELL. EVANS TOLD HER HE DID NOT HAVE THEM IN HIS POSSESSION, AND
BUTLER SAID HE COULD NOT ARREST FERGUSON AND MITCHELL WITHOUT THE
WARRANTS. SHE TOLD THEM NOT TO GO WITH EVANS AND COPPAGE BECAUSE THEY
DID NOT HAVE WARRANTS AND HAD NO AUTHORITY WITHOUT THE WARRANTS.
EVANS CALLED HENRY C. LEPAGE, THE CHIEF OF THE PROTECTIVE SERVICES
(INCLUDING THE POLICE) AND TOLD HIM THAT BUTLER AND ZDUNIAK WERE
INTERFERING WITH THE ARREST AND ASKED FOR ADVICE. LEPAGE SUGGESTED THAT
EVANS CALL THE ASSISTANT U.S. ATTORNEY AND HAVE HIM SPEAK TO MRS.
BUTLER. EVANS TRIED TO CALL THE ASSISTANT U.S. ATTORNEY BUT WAS UNABLE
TO REACH HIM AND CALLED THE UNITED STATES MARSHAL AND TOLD HIM THE
PROBLEM. THE MARSHAL SPOKE TO BUTLER WITH ZDUNIAK LISTENING ON AN
EXTENSION AND TOLD THEM THAT EVANS COULD PERFORM AN ARREST WITHOUT A
WARRANT SO LONG AS THERE WAS A WARRANT AND THERE WAS A WARRANT FOR THIS
ARREST. BUTLER THEN TERMINATED HER OBJECTION TO THE ARRESTS AND EVANS
AND COPPAGE TOOK FERGUSON AND MITCHELL TO THE MARSHAL'S OFFICE. BECAUSE
OF THE CONDUCT OF ZDUNIAK AND BUTLER THE ARRESTS WERE DELAYED ABOUT
FORTY MINUTES. BUTLER AND ZDUNIAK WERE GIVEN ADMINISTRATIVE LEAVE FOR
THE TIME SPENT IN THIS MATTER.
AFTER DELIVERING FERGUSON AND MITCHELL TO THE UNITED STATES MARSHAL,
EVANS SPOKE TO ASSISTANT U.S. ATTORNEY HANDZLIK AND TOLD HIM WHAT HAD
HAPPENED AT THE ARREST. HANDZLIK TOLD HIM A COMPLAINT COULD BE ISSUED
UPON EVAN'S AFFIDAVIT AND A WARRANT OBTAINED FOR THE ARREST OF BUTLER
AND ZDUNIAK FOR INTERFERING IN THE ARREST OF FERGUSON AND MITCHELL.
THAT WAS DONE AND THE WARRANT WAS ISSUED ABOUT 3:00 P.M. EVANS THEN
CALLED LEPAGE, THE CHIEF OF HIS SECTION, AND TOLD HIM ABOUT THE WARRANT
HE HAD OBTAINED. LEPAGE TOLD EVANS NOT TO MAKE THE ARRESTS THAT
AFTERNOON BUT TO BRING THE COMPLAINT TO HIS OFFICE AT 8:00 A.M. THE NEXT
MORNING. IT WAS THE POLICY OF THE RESPONDENT'S POLICE TO TRY TO AVOID
MAKING ARRESTS LATE IN THE AFTERNOON BECAUSE AN ARRAIGNING MAGISTRATE
MIGHT NOT BE AVAILABLE AND THE ARRESTED PERSON MIGHT HAVE TO SPEND THE
NIGHT IN JAIL.
EVANS WENT TO LEPAGE'S OFFICE AT 8:00 A.M. THE NEXT MORNING WITH THE
COMPLAINT. MR. MAYNARD ENOS, A REGIONAL PROTECTIVE SPECIALIST OF THE
VETERANS ADMINISTRATION, WAS PRESENT ON A ROUTINE VISIT. LEPAGE TOLD
EVANS TO GET JOHN W. CIRINCIONE, A SENIOR CRIMINAL INVESTIGATOR AND
POLICE OFFICER, TO ACCOMPANY HIM IN THE ARREST OF ZDUNIAK AND TO GET
LOIS COPPAGE TO ACCOMPANY HIM IN THE ARREST OF MRS. BUTLER.
THE ARREST OF ZDUNIAK ON MARCH 21 WAS UNEVENTFUL AND HE WAS TAKEN TO
THE POLICE OFFICE TO WAIT. EVANS AND CIRINCIONE THEN ASKED POLICEWOMEN
LOIS COPPAGE TO ACCOMPANY THEM FOR THE ARREST OF BUTLER. LEPAGE AND
ENOS ALSO WENT TO OBSERVE THE ARRESTING TECHNIQUE IN THE ARREST OF
BUTLER. THIS WAS AT THE SUGGESTION OF ENOS WHO WAS ON A ROUTINE
INSPECTION TRIP. HE HAD BEEN TOLD BY LEPAGE THAT BUTLER WAS A PERSON
WITH WHOM IT WAS DIFFICULT TO GET ALONG; WHEN SHE DISAPPROVED OF
SOMETHING THE POLICE HAD DONE SHE WOULD COME TO THEIR OFFICE AND SHOUT
AND POUND THE TABLE AND GIVE THEM A "HARD TIME".
EVANS, CIRINCIONE, AND COPPAGE WENT TO THE BUILDING WHERE BUTLER'S
OFFICE WAS LOCATED AND ENTERED HER OFFICE. THEY MET LEPAGE AND ENOS IN
THE HALL, AND LEPAGE AND ENOS WATCHED THE ARREST FROM JUST OUTSIDE THE
DOOR OF THE OFFICE.
EVANS SHOWED BUTLER THE COMPLAINT AND TOLD HER IT WAS A COMPLAINT FOR
HER ARREST. HE PLACED IT ON HER DESK IN FRONT OF HER AND READ IT TO
HER, BUT SHE DID NOT LOOK AT IT. SHE HIT HER FIST ON HER DESK AND SAID
SHE WAS NOT GOING "ANY GOD DAMN PLACE" WITH THEM AND THAT IF THE UNITED
STATES MARSHAL WANTED HER HE COULD COME AND GET HER HIMSELF. CIRINCIONE
TRIED TO CALM BUTLER AND TO PERSUADE HER TO COME ALONG PEACEFULLY, BUT
WAS UNSUCCESSFUL. CIRINCIONE, AFTER ABOUT TEN MINUTES, CAME TO LEPAGE
AND ASKED HIM WHAT TO DO. LEPAGE SUGGESTED THAT THE ONLY THING LEFT WAS
TO TAKE BUTLER PHYSICALLY. CIRINCIONE WENT BACK AND TOLD HER THEY WERE
GOING TO HANDCUFF HER AND TAKE HER. SHE SAID THEY WOULD NOT. EVANS
THEN PLACED A HANDCUFF ON ONE OF HER WRISTS AND CIRINCIONE HELD HER
OTHER ARM. SHE WAS SEATED AT THE TIME. SHE HAD AN EXPENSIVE AND
ATTRACTIVE BRACELET ON THE WRIST THAT WAS HANDCUFFED. SHE AROSE AND
SAID THE HANDCUFF WAS DAMAGING HER BRACELET AND WANTED THE HANDCUFF
REMOVED. CIRINCIONE TOLD HER THAT IF SHE WOULD COME PEACEFULLY THE
HANDCUFF WOULD COME OFF. SHE SAID SHE WOULD GO PEACEFULLY, THE HANDCUFF
WAS REMOVED, AND THE ARREST WAS COMPLETED WITH NO FURTHER SIGNIFICANT OR
UNUSUAL INCIDENTS.
BUTLER TESTIFIED THAT EVANS AND CIRINCIONE EACH PLACED A HANDCUFF ON
HER AND TWISTED HER ARMS UP BEHIND HER BACK, CAUSING LACERATIONS ON HER
BACK FROM THE HANDCUFFS AND CONTUSIONS AND ABRASIONS OF THE RIB CAGE AND
CHEST. EVANS, CIRINCIONE, COPPAGE, AND LEPAGE TESTIFIED THAT ONLY ONE
HANDCUFF WAS PLACED ON HER AND THAT THERE WAS NO TWISTING OF ARMS OR
OTHER VIOLENCE EXCEPT CIRINCIONE PLACING ONE HANDCUFF ON ONE WRIST WHILE
SHE WAS SEATED AND EVANS HOLDING HER OTHER ARM. ON MARCH 6, 1974 THE
DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION, OFFICE OF
FEDERAL EMPLOYEES' COMPENSATION AWARDED MRS. BUTLER COMPENSATION FOR AN
INJURY SUSTAINED ON MARCH 21, 1973 CONSISTING OF SPRAINED ARMS,
CONTUSION OF THE CHEST, AND LOW BACK SPRAIN. SHE WAS GIVEN COMPENSATION
FOR THE PERIOD CLAIMED, APRIL 9, 1973 THROUGH JULY 20, 1973 AND MEDICAL
BILLS AGGREGATING $405.50 WERE PAID. THERE IS NO EVIDENCE THAT THE
INJURY ALLOWED BY THE DEPARTMENT OCCURRED DURING HER ARREST, AND IN THE
LIGHT OF ALL THE TESTIMONY I DO NOT BELIEVE IT DID. BUT IN LIGHT OF THE
CONCLUSION I REACH, IT IS IRRELEVANT WHETHER IT DID OR NOT.
ON APRIL 3, 1973, SHORTLY BEFORE 8:00 A.M., RESPONDENT'S POLICE
DESPATCHER HINES RECEIVED A TELEPHONE CALL WHICH HE HAD DIFFICULTY
UNDERSTANDING. HE GAVE THE CALL TO LIEUTENANT ELGIN D. CAMPBELL. THE
CALLER SAID HE WAS ASSISTANT U.S. ATTORNEY EDWARDS AND WANTED SOMEONE
RE-ARRESTED, BUT CAMPBELL COULD NOT HEAR CLEARLY THE NAME OF THE PERSON
TO BE RE-ARRESTED. CAMPBELL'S SHIFT WAS ABOUT TO END AND HE GAVE THE
CALL TO VERLIN R. WERTH, THE ASSISTANT CHIEF OF PROTECTIVE SERVICES, WHO
HAD ARRIVED EARLY FOR HIS SHIFT AS WAS HIS CUSTOM. CAMPBELL TOLD WERTH
IT WAS ASSISTANT U.S. ATTORNEY EDWARDS CALLING. THERE WAS AN ASSISTANT
U.S. ATTORNEY NAMED EDWARDS AND WERTH RECOGNIZED THE NAME. THE CALLER
TOLD WERTH THAT BUTLER AND ZDUNIAK WERE TO BE RE-ARRESTED, THAT A U.S.
MARSHAL WOULD PICK UP BUTLER AT HER HOME (SHE HAD NOT WORKED SINCE MARCH
21, THE DAY SHE WAS ARRESTED), AND THE RESPONDENT'S POLICE WERE ASKED TO
RE-ARREST ZDUNIAK. WERTH TOLD THE CALLER IT WAS EVANS' CASE AND HE
WOULD GIVE THE INFORMATION TO EVANS, AND HE DID SO.
WHEN EVANS RECEIVED THE INFORMATION THAT "EDWARDS" HAD ASKED FOR THE
RE-ARREST OF ZDUNIAK, HE TRIED TO VERIFY THE INFORMATION. HE CALLED THE
U.S. ATTORNEY'S OFFICE AND THEN THE U.S. MARSHAL'S OFFICE, BUT NEITHER
ANSWERED BECAUSE IT WAS ONLY 8:15 A.M., BEFORE THEIR OPENING TIME.
EVANS AND CIRINCIONE THEN RE-ARRESTED ZDUNIAK AND BROUGHT HIM TO THE
MARSHAL'S OFFICE. THERE THEY LEARNED THAT THERE WAS NO WARRANT
OUTSTANDING FOR ZDUNIAK'S RE-ARREST. EVANS THEN WENT TO EDWARDS' OFFICE
BUT HE WAS OUT. WHEN HE CAME BACK HE TOLD EVANS HE HAD NOT MADE THE
CALL. EVANS AND CIRINCIONE THEN RELEASED ZDUNIAK AND TOOK HIM BACK TO
THE HOSPITAL ABOUT NOON. ZDUNIAK WAS GIVEN ADMINISTRATIVE LEAVE FOR THE
TIME SPENT IN THIS INCIDENT.
THE FEDERAL BUREAU OF INVESTIGATION WAS REQUESTED TO MAKE AND DID
MAKE AN INVESTIGATION TO TRY TO LEARN WHO HAD IMPERSONATED AN ASSISTANT
U.S. ATTORNEY IN THE TELEPHONE CALL OF APRIL 3. TO THE TIME OF THE
HEARING IN THIS CASE THE IDENTITY OF THE CALLER WAS STILL NOT
ASCERTAINED.
FERGUSON AND MITCHELL PLEADED GUILTY TO THE CHARGE OF BOOKMAKING,
WERE GIVEN A SUSPENDED SENTENCE, AND PLACED ON PROBATION. THEY ARE
STILL EMPLOYED BY THE RESPONDENT. ZDUNIAK WAS ACQUITTED OF THE CHARGE
AGAINST HIM. HE IS STILL EMPLOYED BY THE RESPONDENT. BUTLER WAS
CONVICTED ON ONE COUNT OF THE INDICTMENT AGAINST HER BUT ON MOTION THE
DISTRICT JUDGE SET ASIDE THE VERDICT BECAUSE HE THOUGHT THAT WHILE
BUTLER SHOULD HAVE ACTED LESS AGGRESSIVELY HER CONDUCT DID NOT WARRANT
THE "FULL FORCE OF FEDERAL CRIMINAL PROCEEDINGS." BUTLER IS STILL A,
EMPLOYEE OF THE RESPONDENT BUT HAS NOT WORKED SINCE MARCH 21, 1973
BECAUSE OF PHYSICAL DISABILITY.
THERE IS NO INDICATION THAT THE MANAGEMENT OF THE RESPONDENT HAD
ANYTHING TO DO WITH ANY OF THE ARRESTS. THE ARREST OF UNION MEMBERS
FERGUSON AND MITCHELL ARE NOT EVEN ALLEGED TO HAVE BEEN IMPROPER. THEY
PLEADED GUILTY. THE RECORD IS CLEAR THAT EVANS OBTAINED THE WARRANTS
FOR THE ARRESTS OF BUTLER AND ZDUNIAK ON HIS OWN INITIATIVE. THE CHIEF
OF HIS SECTION DID NOT EVEN KNOW ABOUT THEM UNTIL EVANS TOLD HIM ABOUT
THE ARREST WARRANTS AFTER HE OBTAINED THEM. THERE IS NO INDICATION THAT
EVANS OR ANY OF THE OTHER POLICY OFFICERS ACTED OTHER THAN IN ACCORDANCE
WITH WHAT THEY HONESTLY BELIEVED TO BE THEIR DUTY AS POLICE OFFICERS.
THAT FACT IS NOT DIMINISHED BY THE FACTS THAT ZDUNIAK WAS ACQUITTED BY
THE JURY OF THE CHARGE AGAINST HIM AND THAT THE JUDGE SET ASIDE THE
JURY'S CONVICTION OF BUTLER BECAUSE HE THOUGHT HER CONDUCT, WHILE
IMPROPER, DID NOT JUSTIFY A FEDERAL CRIMINAL PROSECUTION. THERE IS NO
INTIMATION THAT ANY OF THE INCIDENTS WAS MOTIVATED IN ANY PART BY
ANTI-UNION ANIMUS OR THAT ANY SUCH ANIMUS EXISTED.
WHEN BUTLER AND ZDUNIAK, THE UNION OFFICIALS INVOLVED, TRIED TO
ASSIST FERGUSON AND MITCHELL WHEN THEY WERE BEING ARRESTED FOR A CRIME
UNRELATED TO THEIR EMPLOYMENT, THE UNION OFFICIALS WERE NOT EXERCISING
RIGHTS ASSURED BY THE EXECUTIVE ORDER OR FULFILLING THE OBLIGATION
IMPOSED ON UNIONS BY SECTION 10(E) OF THE EXECUTIVE ORDER TO REPRESENT
THE INTERESTS OF ALL EMPLOYEES IN THE UNIT. THAT OBLIGATION IS TO
REPRESENT EMPLOYEES WITH RESPECT TO THEIR EMPLOYMENT AND DOES NOT
INCLUDE THE OBLIGATION TO REPRESENT THEM WITH RESPECT TO CRIMES
UNRELATED TO THEIR EMPLOYMENT. TO BE SURE, THERE IS NOTHING IMPROPER IN
A UNION TRYING TO ASSIST MEMBERS BEING ARRESTED FOR A CRIME UNRELATED TO
THEIR EMPLOYMENT. BUT THE RIGHT OR OBLIGATION OF A UNION OR ITS
OFFICERS TO DO SO IS NOT A RIGHT OR OBLIGATION ASSURED OR IMPOSED BY THE
ORDER. I CONCLUDE THERE WAS NO VIOLATION OF SECTION 19(A)(1).
THERE IS NO EVIDENCE THAT ANYTHING THAT HAPPENED WAS DISCRIMINATORY
WITH RESPECT TO ANY CONDITION OF EMPLOYMENT. I CONCLUDE THERE WAS NO
VIOLATION OF SECTION 19(A)(2).
THE COMPLAINT ALLEGES A VIOLATION OF SECTION 19(A)(6) IN REFUSING TO
CONSULT OR CONFER "IN THE MATTER OF THE RIGHTS OF STELLA FERGUSON AND
CORRINE MITCHELL REGARDING THEIR ARREST ON 3-20-73." THERE IS NO
EVIDENCE THAT THE RESPONDENT EVER REFUSED TO CONSULT OR CONFER ON THAT
MATTER OR WAS EVER ASKED TO DO SO. I CONCLUDE THERE WAS NO VIOLATION OF
SECTION 19(A)(6).
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: SEPTEMBER 4, 1974
WASHINGTON, D.C.
4 A/SLMR 448; P. 748; CASE NO. 40-4927(CA); OCTOBER 31, 1974.
INTERNAL REVENUE SERVICE,
SOUTHEAST SERVICE CENTER,
CHAMBLEE, GEORGIA
A/SLMR NO. 448
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL TREASURY EMPLOYEES UNION, AND CHAPTER 070,
NATIONAL TREASURY EMPLOYEES UNION (COMPLAINANTS). THE COMPLAINANTS
ALLEGED THAT THE RESPONDENT ACTIVITY VIOLATED SECTION 19(A)(1), (2) AND
(6) OF THE ORDER BY HOLDING A FORMAL MEETING WITH EMPLOYEES IN THE UNIT
REPRESENTED BY THE COMPLAINANTS WITHOUT THE PRESENCE OF A REPRESENTATIVE
OF THE COMPLAINANTS AND BY ITS SUPERVISORS MEETING WITH INDIVIDUAL
GRIEVANTS TO PERSUADE THEM TO WITHDRAW THEIR GRIEVANCES WITHOUT
NOTIFYING OR ALLOWING TO BE PRESENT REPRESENTATIVES OF THE COMPLAINANTS
DESIGNATED BY SAID GRIEVANTS.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THE ASSISTANT SECRETARY FOUND, IN AGREEMENT
WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE ABSENCE OF THE DESIGNATED
SUBSTITUTE REPRESENTATIVE OF THE EXCLUSIVE REPRESENTATIVE AT A REGULARLY
SCHEDULED EMPLOYEE MEETING, DUE TO A CONFLICT IN WORK SCHEDULES DID NOT
RESULT IN A VIOLATION OF THE ORDER. THE ADMINISTRATIVE LAW JUDGE BASED
HIS FINDINGS ON THE FACT THAT THE REGULAR ATTENDING REPRESENTATIVE KNEW
WELL IN ADVANCE THAT THERE WAS A CONFLICT IN DATES WHICH WOULD KEEP HER
FROM ATTENDING THE PREVIOUSLY SCHEDULED MEETING BUT DID NOT ADVISE THE
RESPONDENT UNTIL LATE IN THE DAY BEFORE THE MEETING. WHILE THE
REPRESENTATIVE'S ALTERNATE COULD NOT BE RELEASED FROM DUTY DUE TO WORK
SCHEDULES, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT HAD
MADE SINCERE EFFORTS TO ASSURE THAT THE EXCLUSIVELY RECOGNIZED LABOR
ORGANIZATION WAS REPRESENTED AT THE MEETING AND THAT A SUBSTITUTE
REPRESENTATIVE, IN FACT, ATTENDED AND PARTICIPATED IN THE MEETING.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
CONCLUDED THAT THE RESPONDENT'S FAILURE TO NOTIFY THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES CONCERNING FORMAL DISCUSSIONS BETWEEN
SUPERVISORS AND GRIEVANTS WITH RESPECT TO EMPLOYEE GRIEVANCES
CONSTITUTED A VIOLATION OF THE ORDER. IN THIS CONNECTION, THE
GRIEVANCES WERE FILED BY SOME 33 EMPLOYEES UNDER THE AGENCY GRIEVANCE
PROCEDURE CONCERNING THE CHARGE OF FOUR HOURS OF ANNUAL LEAVE BECAUSE OF
THE ABSENCE OF THESE EMPLOYEES AFTER THE FACILITY HAD REOPENED FOLLOWING
A SEVERE ICE STORM IN THE ATLANTA, GEORGIA, AREA. THE ADMINISTRATIVE
LAW JUDGE FOUND THAT ALTHOUGH THE COMPLAINANTS ARGUE THAT THEY NEVER
ALLEGED AN UNFAIR LABOR PRACTICE IN THE GRIEVANCES, THE STATEMENTS
CONTAINED IN A LETTER FROM A NATIONAL FIELD REPRESENTATIVE TO THE AGENCY
GRIEVANCE EXAMINER REFLECTED THAT THERE WAS A COMPLAINT ABOUT THE
FAILURE TO HAVE THE DESIGNATED REPRESENTATIVES PRESENT AT THE
SUPERVISORY INTERVIEWS. THUS, HE CONCLUDED THAT THE PROVISIONS OF
SECTION 19(D) OF THE ORDER WERE APPLICABLE BECAUSE, IN HIS VIEW, THE
COMPLAINANTS HAD PURSUED THE ALLEGED UNFAIR LABOR PRACTICE THROUGH THE
ESTABLISHED GRIEVANCE PROCEDURE. THE ASSISTANT SECRETARY FOUND THAT THE
ISSUE RAISED UNDER THE GRIEVANCE PROCEDURE BY VIRTUE OF THE NATIONAL
FIELD REPRESENTATIVE'S LETTER WAS NOT THE SAME ISSUE AS THAT RAISED IN
THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT. THUS, THE ISSUE INVOLVED
IN THE GRIEVANCES CONCERNED ESSENTIALLY THE RIGHTS OF INDIVIDUAL
EMPLOYEES UNDER THE AGENCY PROCEDURE TO RECEIVE RELIEF FROM DISCIPLINARY
ACTION, WHICH RIGHTS WERE COVERED IN THE AGENCY GRIEVANCE PROCEDURE
CITED BY THE ADMINISTRATIVE LAW JUDGE, WHEREAS THE RIGHTS INVOLVED IN
THE COMPLAINT WERE THOSE OF AN EXCLUSIVE REPRESENTATIVE UNDER SECTION
10(E) OF THE ORDER. THE ASSISTANT SECRETARY CONCLUDED, THEREFORE, THAT
SECTION 19(D) OF THE ORDER WAS INAPPLICABLE INSOFAR AS THE COMPLAINT
ALLEGES VIOLATION OF RIGHTS ASSURED TO AN EXCLUSIVE REPRESENTATIVE. IN
HIS VIEW, THE ISSUE PRESENTED WAS WHETHER THE RESPONDENT'S FAILURE TO
NOTIFY THE EXCLUSIVE REPRESENTATIVE OF SUCH MEETINGS WAS CONTRARY TO THE
REQUIREMENTS OF SECTION 10(E) OF THE ORDER AND, THEREFORE, VIOLATIVE OF
SECTION 19(A)(6). NOTING PARTICULARLY THAT THE MEETINGS RELATED TO THE
PROCESSING OF PREVIOUSLY FILED GRIEVANCES, THE ASSISTANT SECRETARY FOUND
THAT UNDER SECTION 10(E) AN EXCLUSIVE REPRESENTATIVE MUST BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS CONCERNING
GRIEVANCES. UNDER THE CIRCUMSTANCES OF THE CASE, HE FOUND THAT THE
FAILURE TO INFORM THE EXCLUSIVE REPRESENTATIVE OF THE MEETINGS WHICH HE
FOUND WERE FORMAL DISCUSSIONS OF GRIEVANCES, AND AFFORD IT AN
OPPORTUNITY TO BE REPRESENTED, CONSTITUTED A VIOLATION OF SECTION 19
(A)(6) OF THE ORDER. THE ASSISTANT SECRETARY CONCLUDED ALSO THAT THIS
IMPROPER CONDUCT NECESSARILY HAD A RESTRAINING INFLUENCE UPON UNIT
EMPLOYEES AND HAD A CONCOMITANT COERCIVE EFFECT UPON THEIR RIGHTS
ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1).
ACCORDINGLY, THE ASSISTANT SECRETARY ISSUED A REMEDIAL ORDER WITH
RESPECT TO THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND HE DISMISSED THE
COMPLAINT IN ALL OTHER RESPECTS.
INTERNAL REVENUE SERVICE
SOUTHEAST SERVICE CENTER,
CHAMBLEE, GEORGIA
CASE NO. 40-4927(CA)
AND
NATIONAL TREASURY EMPLOYEES
UNION, AND CHAPTER 070,
NATIONAL TREASURY EMPLOYEES
UNION
ON JUNE 27, 1974, ADMINISTRATIVE LAW JUDGE THOMAS W. KENNEDY ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANTS FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION TOGETHER WITH A SUPPORTING BRIEF.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION,
ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGED, AMONG OTHER THINGS, THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE EXECUTIVE ORDER 11491, AS
AMENDED, BY ITS SUPERVISORS MEETING WITH INDIVIDUAL GRIEVANTS TO
PERSUADE THEM TO WITHDRAW THEIR GRIEVANCES WITHOUT NOTIFYING, OR
ALLOWING TO BE PRESENT, REPRESENTATIVES OF THE COMPLAINANTS' DESIGNATED
BY SAID GRIEVANTS.
THE ESSENTIAL FACTS IN THE CASE ARE SET FORTH IN DETAIL IN THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION, AND I SHALL REPEAT
THEM ONLY TO THE EXTENT NECESSARY.
CHAPTER 070 OF THE NATIONAL TREASURY EMPLOYEES UNION IS THE
EXCLUSIVELY RECOGNIZED REPRESENTATIVE OF THE EMPLOYEES INVOLVED IN THIS
PROCEEDING. HOWEVER, NO NEGOTIATED AGREEMENT WAS IN EFFECT AT THE TIME
OF THE EVENTS HEREIN. ON JANUARY 7, 1973, THERE OCCURRED A SEVERE ICE
STORM IN THE ATLANTA, GEORGIA, AREA, WHICH RESULTED IN POWER FAILURES
AND HAZARDOUS DRIVING CONDITIONS THROUGHOUT THE AREA. THE RESPONDENT
FACILITY WAS WITHOUT POWER WHICH FORCED A SHUTDOWN OF OPERATIONS FROM
THE NIGHT SHIFT ON SUNDAY, JANUARY 7, UNTIL TUESDAY, NOON, JANUARY 9.
ADMINISTRATIVE LEAVE FOR THAT PERIOD WAS GRANTED TO ALL EMPLOYEES. SOME
EMPLOYEES, FOR VARIOUS REASONS RELATED TO THE STORM, DID NOT REPORT TO
WORK UNTIL JANUARY 10. THESE EMPLOYEES WERE CHARGED WITH ANNUAL LEAVE.
ON JANUARY 24, 1973, APPROXIMATELY 33 OF THESE EMPLOYEES, WHO OBJECTED
TO THE LOSS OF ANNUAL LEAVE, FILED GRIEVANCES WHICH DESIGNATED THE
COMPLAINANT LOCAL'S PRESIDENT AND ITS ATTORNEY AS THEIR REPRESENTATIVES.
ON JANUARY 29, 1973, SUPERVISORS, ACTING UNDER INSTRUCTIONS FROM THEIR
SUPERIORS, CALLED THE GRIEVANTS TO THEIR DESKS TO INTERVIEW THEM WITH
RESPECT TO THEIR GRIEVANCES. THE DESIGNATED REPRESENTATIVES WERE
NEITHER NOTIFIED OF, NOR WERE THEY PRESENT AT, THE INTERVIEWS. AS A
RESULT OF THE INTERVIEWS SOME OF THE GRIEVANCES WERE WITHDRAWN, BUT
OTHER EMPLOYEES INDICATED THAT THEY WANTED THEIR GRIEVANCES PROCESSED,
EVEN THOUGH, ACCORDING TO TESTIMONY, THERE WAS A SUGGESTION THAT THEY
WITHDRAW THE GRIEVANCES.
ON FEBRUARY 9, 1973, THE COMPLAINANTS FILED UNFAIR LABOR PRACTICE
CHARGES WITH THE RESPONDENT, AND ON JUNE 22, 1973, THE COMPLAINT IN THE
INSTANT CASE WAS FILED. /1/ IN JUNE 1973, PURSUANT TO THE AGENCY'S
GRIEVANCE PROCEDURE, A GRIEVANCE EXAMINER WAS APPOINTED WHO CONDUCTED AN
INVESTIGATION AND ISSUED A REPORT DISCUSSING EACH CASE SEPARATELY. IN
THIS CONNECTION, ON JULY 12, 1973, A NATIONAL FIELD REPRESENTATIVE OF
THE NATIONAL TREASURY EMPLOYEES UNION SENT A LETTER TO THE GRIEVANCE
EXAMINER WHICH, AMONG OTHER THINGS, STATED:
. . . THE RECORD SHOULD INDICATE THAT IN EACH INSTANCE THE EMPLOYEE
WAS APPROACHED BY HIS
OR HER SUPERVISOR AND A DISCUSSION REGARDING THE SUBJECT MATTER OF
THE GRIEVANCE ENSUED. THE
OFFICIAL UNION REPRESENTATIVES WERE NOT INFORMED NOR GIVEN A CHANCE
TO BE PRESENT AT THESE
MEETINGS . . .
AS YOU KNOW, UNFAIR LABOR PRACTICE CHARGES STEMMING FROM THIS
GRIEVANCE ARE CURRENTLY
PENDING BEFORE THE DEPARTMENT OF LABOR. THE RECORD IN THIS GRIEVANCE
IS VITAL TO THE FAIR AND
JUST DISPOSITION OF THOSE CHARGES. I HEREBY FORMALLY REQUEST A COPY
OF THE GRIEVANCE FILE AND
ANY OTHER INFORMATION YOU HAVE ON THIS MATTER.
IN HIS REPORT, THE GRIEVANCE EXAMINER CONCLUDED THAT THE FAILURE TO
AFFORD THE REPRESENTATIVES OF THE AFFECTED EMPLOYEES NOTICE OF THE
MEETINGS INVOLVED WAS A "PROCEDURAL ERROR" BUT WAS NOT "FATAL."
THE ADMINISTRATIVE LAW JUDGE FOUND THAT ALTHOUGH THE COMPLAINANTS
ARGUE THAT THEY NEVER ALLEGED AN UNFAIR LABOR PRACTICE IN THE
GRIEVANCES, THE STATEMENTS CONTAINED IN THE JULY 12, 1973, LETTER TO THE
GRIEVANCE EXAMINER REFLECT THAT THERE WAS, IN FACT, A COMPLAINT TO THE
GRIEVANCE EXAMINER ABOUT THE FAILURE TO HAVE THE DESIGNATED
REPRESENTATIVES PRESENT AT THE SUPERVISORY INTERVIEWS. HE CONCLUDED,
THEREFORE, THAT THE PROVISIONS OF SECTION 19(D) OF THE ORDER WERE
APPLICABLE BECAUSE, IN HIS VIEW, THE COMPLAINANTS HAD PURSUED THE
ALLEGED UNFAIR LABOR PRACTICE THROUGH THE ESTABLISHED GRIEVANCE
PROCEDURE. ACCORDINGLY, HE RECOMMENDED THAT THIS ASPECT OF THE
COMPLAINT BE DISMISSED ON THE BASIS THAT THE MATTER COULD NOT BE
PROCESSED THROUGH THE UNFAIR LABOR PRACTICE PROCEDURE AFFORDED IN THE
ORDER. I DO NOT AGREE.
IN MY VIEW, THE ISSUE RAISED UNDER THE GRIEVANCE PROCEDURE BY VIRTUE
OF THE NATIONAL FIELD REPRESENTATIVE'S LETTER OF JULY 12, 1973, TO THE
GRIEVANCE EXAMINER WAS NOT THE SAME ISSUE AS IS RAISED BY THE INSTANT
UNFAIR LABOR PRACTICE COMPLAINT. THUS, THE ISSUE INVOLVED IN THE
GRIEVANCES CONCERNED ESSENTIALLY THE RIGHTS OF INDIVIDUAL EMPLOYEES
UNDER THE AGENCY PROCEDURE TO RECEIVE RELIEF RESULTING FROM AN AGENCY
DISCIPLINARY ACTION, WHILE THE RIGHTS INVOLVED IN THE INSTANT UNFAIR
LABOR PRACTICE COMPLAINT ARE THOSE OF AN EXCLUSIVE REPRESENTATIVE UNDER
SECTION 10(E) OF THE ORDER. /2/ IN THIS REGARD, SECTION 113 OF THE
AGENCY GRIEVANCE PROCEDURE, CITED BY THE ADMINISTRATIVE LAW JUDGE,
REQUIRED THE INCORPORATION IN A GRIEVANCE OF CERTAIN UNFAIR LABOR
PRACTICE ALLEGATIONS INVOLVING ALLEGED VIOLATION OF INDIVIDUAL RIGHTS
ASSURED UNDER ORDER, BUT DOES NOT REQUIRE THE INCLUSION OF UNFAIR LABOR
PRACTICE ALLEGATIONS RELATING TO THE OBLIGATION OF AN AGENCY TO MEET AND
CONFER WITH AN EXCLUSIVE REPRESENTATIVE, WHICH IS THE GRAVAMEN OF THE
INSTANT COMPLAINT IN THIS REGARD. ACCORDINGLY, I FIND THAT THE AGENCY
GRIEVANCE PROCEDURE HEREIN DID NOT COVER OR RESOLVE ALL OF THE MATTERS
RAISED BY THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT AND THAT,
THEREFORE, SECTION 19(D) OF THE ORDER IS APPLICABLE, INSOFAR AS THE
INSTANT COMPLAINT ALLEGES A VIOLATION OF RIGHTS ASSURED TO AN EXCLUSIVE
REPRESENTATIVE.
THUS, THE ISSUE PRESENTED IS WHETHER THE RESPONDENT'S FAILURE TO
NOTIFY THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE OF THE INTERVIEW MEETINGS
WITH THE GRIEVANTS WAS CONTRARY TO THE REQUIREMENTS OF SECTION 10(E) OF
THE ORDER AND, THEREFORE, VIOLATIVE OF SECTION 19(A)(6). IN THIS
REGARD, IT WAS NOTED PARTICULARLY THAT THE MEETINGS WITH THE INDIVIDUAL
SUPERVISORS, ACTING UNDER INSTRUCTIONS FROM THEIR SUPERIORS, RELATED TO
THE PROCESSING OF PREVIOUSLY FILED GRIEVANCES UNDER THE AGENCY GRIEVANCE
PROCEDURE. /3/ AS INDICATED ABOVE, SECTION 10(E) OF THE ORDER
SPECIFICALLY PROVIDES THAT AN EXCLUSIVE REPRESENTATIVE MUST BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES WHICH CONCERN GRIEVANCES.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE FAILURE TO INFORM EXCLUSIVE
REPRESENTATIVE OF THE MEETINGS INVOLVED AND AFFORD IT AN OPPORTUNITY TO
BE REPRESENTED AT SUCH MEETINGS, WHICH I FIND WERE FORMAL DISCUSSIONS OF
GRIEVANCES WITHIN THE MEANING OF SECTION 10(E), CONSTITUTED A VIOLATION
OF SECTION 19(A)(6) OF THE ORDER. /4/
MOREOVER, I FIND THAT THE RESPONDENT'S IMPROPER CONDUCT IN THIS
REGARD NECESSARILY HAD A RESTRAINING INFLUENCE UPON UNIT EMPLOYEES AND
HAD A CONCOMITANT COERCIVE EFFECT UPON THEIR RIGHTS ASSURED BY THE
ORDER. ACCORDINGLY, I CONCLUDE THAT THE RESPONDENT'S CONDUCT HEREIN
ALSO VIOLATED SECTION 19(A)(1) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE INTERNAL REVENUE
SERVICE, SOUTHEAST SERVICE CENTER, CHAMBLEE, GEORGIA, SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT WITHOUT GIVING CHAPTER 070, NATIONAL TREASURY
EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE
OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY ITS OWN CHOSEN
REPRESENTATIVE.
(B) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
FAILING TO PROVIDE CHAPTER 070, NATIONAL TREASURY EMPLOYEES UNION, THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT
AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER.
(A) NOTIFY CHAPTER 070, NATIONAL TREASURY EMPLOYEES UNION OF, AND
GIVE IT THE OPPORTUNITY TO BE REPRESENTED AT, FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
(B) POST AT ITS FACILITY AT INTERNAL REVENUE SERVICE, SOUTHEAST
SERVICE CENTER, CHAMBLEE, GEORGIA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE DIRECTOR, INTERNAL REVENUE SERVICE, SOUTHEAST SERVICE
CENTER, CHAMBLEE, GEORGIA, AND THEY SHALL BE POSTED AND MAINTAINED BY
HIM FOR SIXTY (60) CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES,
INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.
THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.24 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
ADDITIONAL VIOLATIONS OF SECTION 19(A)(1), (2) AND (6) BE, AND IT HEREBY
IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1974
/1/ THE COMPLAINT WAS AMENDED ON AUGUST 15 AND AUGUST 27, 1973.
/2/ SECTION 10(E) PROVIDES, IN PART, THAT AN EXCLUSIVE BARGAINING
REPRESENTATIVE " . . . SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED
AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES,
OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT."
/3/ IN MY VIEW, IT IS IMMATERIAL FOR THE PURPOSES OF SECTION 10(E)
WHETHER SUCH GRIEVANCES WERE AT AN "INFORMAL" OR "FORMAL" STAGE UNDER AN
AGENCY GRIEVANCE PROCEDURE. IT WAS NOTED IN THIS REGARD THAT THE
FEDERAL LABOR RELATIONS COUNCIL IN MARE ISLAND NAVAL SHIPYARD, VALLEJO,
CALIFORNIA, FLRC NO. 72A-12, IN ANOTHER CONTEXT, STATED THAT THE TERM
"GRIEVANCE," AS USED IN SECTION 2(C) OF THE ORDER, "INCLUDES BOTH FORMAL
AND INFORMAL GRIEVANCES."
/4/ CF. FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO.
438.
WE WILL NOT CONDUCT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT WITHOUT GIVING CHAPTER 070, NATIONAL
TREASURY EMPLOYEES UNION, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE
OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY ITS OWN CHOSEN
REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
DATED . . . BY
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS
IS: ROOM 300, 1371 PEACHTREE ST., N.E., ATLANTA, GEORGIA 90309.
IN THE MATTER OF
INTERNAL REVENUE SERVICE,
SOUTHEAST SERVICE CENTER,
CHAMBLEE, GEORGIA
AND
NATIONAL TREASURY EMPLOYEES UNION,
AND CHAPTER 070, NATIONAL TREASURY
EMPLOYEES UNION
WILLIAM F. LONG, JR., ESQ.
OFFICE OF THE GENERAL COUNSEL
INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE
WASHINGTON, D.C. 20224
THOMAS ANGELO, ESQ.
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: THOMAS W. KENNEDY
ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON OCTOBER 25, 1973,
BY THE ACTING REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, ATLANTA REGION, BASED ON A SECOND AMENDED COMPLAINT
FILED ON AUGUST 27, 1973, BY NATIONAL ASSOCIATION OF INTERNAL REVENUE
EMPLOYEES AND CHAPTER 070, NATIONAL ASSOCIATION OF INTERNAL REVENUE
EMPLOYEES. (AFTER THE FILING OF THE COMPLAINT HEREIN, THE PARENT LABOR
ORGANIZATION CHANGED ITS NAME TO NATIONAL TREASURY EMPLOYEES UNION.
THAT LABOR ORGANIZATION AND ITS LOCAL 070 ARE REFERRED TO HEREIN JOINTLY
AS THE UNION OR COMPLAINANTS.) THE COMPLAINT WAS FILED AGAINST INTERNAL
REVENUE SERVICE, SOUTHEAST SERVICE CENTER, CHAMBLEE, GEORGIA (HEREIN
CALLED RESPONDENT) AND ALLEGES VIOLATIONS OF SECTION 19, SUBSECTIONS
(A)(1), (A)(2), AND (A)(6) OF THE ORDER, IN THAT RESPONDENT; (1) HELD A
FORMAL MEETING WITH EMPLOYEES IN THE UNIT REPRESENTED BY THE UNION
WITHOUT THE PRESENCE OF A REPRESENTATIVE OF THE UNION; (2) CONDUCTED A
FORMAL MEETING WITH AN EMPLOYEE TO DISCUSS HER APPLICATION FOR
RETIREMENT WITHOUT NOTIFYING AND ALLOWING TO BE PRESENT THE UNION
REPRESENTATIVE DESIGNATED BY SAID EMPLOYEE; AND (3) MET WITH INDIVIDUAL
GRIEVANTS TO PERSUADE THEM TO WITHDRAW THEIR GRIEVANCES WITHOUT
NOTIFYING OR ALLOWING TO BE PRESENT UNION REPRESENTATIVES DESIGNATED BY
SAID GRIEVANTS. /2/
A HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED
ADMINISTRATIVE LAW JUDGE ON JANUARY 15 AND 16, 1974, IN ATLANTA,
GEORGIA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. OPPORTUNITY WAS ALSO AFFORDED THE PARTIES TO
ARGUE ORALLY AND TO FILE BRIEFS. COMPLAINANTS AND RESPONDENT FILED
BRIEFS, WHICH HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
A. BACKGROUND
IN CHAMBLEE, GEORGIA, A SUBURB OF ATLANTA, THE INTERNAL REVENUE
SERVICE OPERATES ITS SOUTHEAST SERVICE CENTER. STRUCTURED IN THE USUAL
GOVERNMENTAL FASHION WITH DIVISIONS, BRANCHES AND SECTIONS, THERE IS,
AMONG OTHER THINGS, A COMPUTER BRANCH, UNDER THE DIRECTION OF BRANCH
CHIEF WILLIAM H. MILLECAN. SECTIONS WITHIN THAT BRANCH INCLUDE COMPUTER
OPERATIONS UNDER SECTION CHIEF ROBERT SMITH AND BRANCH TRAINING UNDER
SECTION CHIEF JAMES H. DUKE. THE WORK OF THE COMPUTER BRANCH INCLUDES
THE OPERATION OF HONEYWELL AND GENERAL ELECTRIC COMPUTERS AND INVOLVES
AROUND-THE-CLOCK PROGRAMS UTILIZING THREE SHIFTS OF EMPLOYEES. THE DAY
SHIFT, DURING THE TIMES MATERIAL HEREIN, WAS UNDER THE CONTROL OF SHIFT
MANAGER MARVIN MICHAEL, WHO SUPERVISED THE WORK OF SEVERAL COMPUTER
OPERATORS. ALSO INVOLVED IN THE OPERATIONS OF THE INSTALLATION IS A
PROGRAM KNOWN AS INTEGRATED DATA RETRIEVAL SYSTEM (IDRS) MANNED BY IDRS
EXAMINERS, ONE OF WHOM WAS MRS. JEAN WHITENER, WHO WAS ALSO THE
PRESIDENT OF LOCAL 070, ONE OF THE COMPLAINANTS HEREIN.
THE REPRESENTATIVE STATUS OF COMPLAINANTS IS NOT IN ISSUE.
RESPONDENTS RECOGNIZED THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES IN A UNIT APPROPRIATE FOR THE PURPOSES OF COLLECTIVE
BARGAINING, ALTHOUGH THERE WAS NOT IN EFFECT AT ANY TIME MATERIAL HEREIN
A VALID COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND
RESPONDENT.
B. THE ALLEGED UNFAIR LABOR PRACTICES
WITH ONE ELEMENT WITHDRAWN, THERE REMAIN FOR RESOLUTION TWO
ALLEGATIONS IN THE COMPLAINT. ONE OF THESE INVOLVES A MEETING HELD BY
RESPONDENT WITH A GROUP OF EMPLOYEES, REFERRED TO AS A "DIAGONAL SLICE
MEETING," AND THE ISSUE IS WHETHER OR NOT RESPONDENT DENIED THE UNION
REPRESENTATION AT THE MEETING. THE OTHER ALLEGATION INVOLVES INDIVIDUAL
MEETINGS BETWEEN SUPERVISORS AND EMPLOYEES WHO HAD FILED GRIEVANCES
AFTER BEING CHARGED ANNUAL LEAVE FOR ABSENCE DURING A SEVERE ICE STORM,
AND AGAIN THE ISSUE INVOLVES THE DENIAL OF REPRESENTATION AT THESE
MEETINGS.
1. THE "DIAGONAL SLICE" MEETING
FOR SOME TIME PRIOR TO THE OCCURRENCES HEREIN RESPONDENT MET ON THE
FIRST WEDNESDAY OF EACH MONTH WITH A GROUP OF EMPLOYEES FOR THE PURPOSE
OF DISCUSSING THE MISSION AND PROBLEMS INVOLVED IN RESPONDENT'S
OPERATIONS AND PROBLEMS OR OTHER ITEMS OF INTEREST INVOLVING THE
EMPLOYEES AND THEIR ASSIGNMENTS AND WORKING CONDITIONS. USUALLY IN
ATTENDANCE AT THESE MEETINGS WERE THE DIRECTOR OF THE INSTALLATION, THE
CHIEF OF THE PERSONNEL BRANCH, THE LABOR RELATIONS OFFICER, AND A GROUP
OF EMPLOYEES RANDOMLY SELECTED BY RESPONDENT SO AS TO BE REPRESENTATIVE.
WHILE SELECTING EMPLOYEES IN RANDOM FASHION, RESPONDENT MADE CERTAIN
THAT THE VARIOUS BRANCHES AND SECTIONS WERE REPRESENTED AS WELL AS THE
VARIOUS GRADE LEVELS, IN ORDER THAT THE GROUP WOULD CONSTITUTE A
CROSS-SECTION OF THE EMPLOYEE FORCE; HENCE THE NAME "DIAGONAL SLICE."
RESPONDENT RECOGNIZED THE RIGHT OF THE UNION TO HAVE A REPRESENTATIVE IN
ATTENDANCE, AND TO PARTICIPATE AS SUCH, IN THESE MONTHLY MEETINGS, AND
IN MOST INSTANCES, AT LEAST FOR SEVERAL MONTHS PRIOR TO THE EVENTS
HEREIN, THAT REPRESENTATIVE WAS JEAN WHITENER, PRESIDENT OF CHAPTER 070
OF THE UNION.
THE FIRST WEDNESDAY IN 1973 WAS JANUARY 3, AND PURSUANT TO STANDARD
PRACTICE, NOTICE OF A "DIAGONAL SLICE" MEETING WAS DISTRIBUTED TO ALL
CONCERNED DURING THE LATTER PART OF DECEMBER 1972, SETTING FORTH THE
DETAILS FOR THE MEETING SCHEDULED FOR JANUARY 3. AMONG THE RECIPIENTS
OF THAT NOTICE WAS PRESIDENT JEAN WHITENER OF THE UNION. IT SO HAPPENED
THAT AROUND THE SAME TIME RESPONDENT'S BRANCH TRAINING COORDINATOR,
JAMES H. DUKE, WAS SCHEDULING ONE OF HIS PERIODIC TRAINING CLASSES
RELATING TO THE INDIVIDUAL MASTER FILE PROGRAM (CALLED IMF TRAINING
CLASSES). JEAN WHITENER, IN HER CAPACITY AS AN IDRS EXAMINER WAS
SELECTED TO ATTEND THE UPCOMING IMF TRAINING CLASS, WHICH WAS SCHEDULED
TO BEGIN ON WEDNESDAY MORNING, JANUARY 3, 1973. THE CONFLICT APPARENTLY
WENT UNNOTICED BY ALL CONCERNED, FOR IT WAS NOT UNTIL THE AFTERNOON OF
TUESDAY, JANUARY 2, THAT JEAN WHITENER IN FLIPPING THROUGH HER CALENDAR
CONCLUDED THAT ON THE FOLLOWING MORNING SHE WAS TO BE IN TWO PLACES AT
THE SAME TIME. DESIROUS OF ATTENDING THE IMF TRAINING CLASS AND AT THE
SAME TIME CONSCIOUS OF HER UNION RESPONSIBILITY, SHE TELEPHONED THE
LABOR RELATIONS OFFICER, CLAUDE BURNS, AND TOLD HIM OF THE CONFLICT,
ADVISING THAT SHE WOULD LIKE TO HAVE ALONZO ALLEN, A COMPUTER OPERATOR
WHO WAS ALSO SPECIAL ASSISTANT TO THE UNION CHAPTER PRESIDENT, ATTEND
THE "DIAGONAL SLICE" MEETING IN HER PLACE THE FOLLOWING MORNING. BURNS
INDICATED ACQUIESCENCE IN THIS ARRANGEMENT, BUT UPON CHECKING WITH SHIFT
MANAGER MICHAEL, HE LEARNED THAT THE SCHEDULED WORK FOR THE COMPUTER
BRANCH MAY BE SUCH THAT ALLEN COULD NOT BE SPARED. THIS CONVERSATION
TOOK PLACE NEAR THE END OF THE SHIFT, AND MICHAEL TOLD BURNS HE WOULD BE
MORE CERTAIN OF THE PROBLEM THE FOLLOWING MORNING.
THE FOLLOWING MORNING, JANUARY 3, JEAN WHITENER, BELIEVING THAT THE
SUBSTITUTE ARRANGEMENTS WERE COMPLETE, BEGAN HER TRAINING CLASS AT 7:30.
ON THAT SAME MORNING MICHAEL CONFIRMED HIS EVALUATION CONCERNING THE
FEASIBILITY OF RELEASING ALONZO ALLEN TO ATTEND THE "DIAGONAL SLICE"
MEETING. ACCORDING TO MICHAEL, THEY WERE SHORT-HANDED IN THE COMPUTER
BRANCH. THERE WERE IMPORTANT PROGRAMS SCHEDULED FOR THE HONEYWELL AND
GENERAL ELECTRIC COMPUTERS, IT WAS THE FIRST WEEK AFTER THE CLOSE OF THE
TAX YEAR, AND A CRASH PROGRAM WAS INITIATED TO TRANSFER MANY ACCOUNTS OR
RETURNS TO THE MEMPHIS INSTALLATION. ALLEN WAS ONE OF A FEW EXPERIENCED
COMPUTER OPERATORS, AND SINCE ONE OF THE OTHER FEW WAS JUST RETURNING
FROM LEAVE ON THAT VERY DAY, IT WAS CONCLUDED THAT ALLEN COULD NOT BE
SPARED. BURNS AGREED TO TRY TO GET ANOTHER SUBSTITUTE AND TELEPHONED
WHITENER, GETTING HER OUT OF HER TRAINING CLASS TO ADVISE HER OF THE
PROBLEM. WHITENER SAID SHE WOULD CHECK INTO THE MATTER. SHE
IMMEDIATELY CONTACTED ALLEN AND, AFTER DISCUSSING THE MATTER WITH HIM
AND OTHER EMPLOYEES, CONCLUDED THAT THE PROBLEM WAS NOT SUCH THAT ALLEN
COULD NOT BE SPARED. SHE CALLED BURNS AND ADVISED HIM THAT SHE WAS
INSISTING THAT ALLEN ATTEND THE MEETING, THREATENING TO "GO HIGHER" IF
ALLEN WAS NOT ALLOWED TO ATTEND. BY THIS TIME IT WAS BEYOND THE
SCHEDULED STARTING TIME FOR THE MEETING, AND BURNS PRESENTED THE PROBLEM
TO THE DIRECTOR, WHO NOTICED THAT THE ROSTER CONTAINED THE NAME OF ED
DYER AMONG THOSE RANDOMLY SELECTED FOR ATTENDANCE. DYER WAS KNOWN TO
HOLD SOME OFFICE IN THE UNION /3/ , SO THE DIRECTOR SUGGESTED THAT BURNS
TALK AGAIN WITH WHITENER WITH THE IDEA IN MIND THAT SHE ACCEPT DYER AS A
SUBSTITUTE, SINCE HE WAS TO BE AT THE MEETING ANYWAY. ONCE AGAIN BURNS
CALLED WHITENER, GETTING HER OUT OF HER TRAINING CLASS TO DISCUSS THE
SUGGESTED SOLUTION, NAMELY USING DYER AS THE UNION REPRESENTATIVE AT THE
MEETING. ACCORDING TO BURNS' RECOLLECTION OF THAT CONVERSATION, IT
ENDED WITH THE UNDERSTANDING THAT DYER WOULD BE THE REPRESENTATIVE OF
THE UNION AT THE MEETING. WHILE HAVING THE "IMPRESSION" THAT THERE WAS
AGREEMENT CONCERNING THE SUBSTITUTE ARRANGEMENT, BURNS CONCEDED THAT
WHITENER WAS NOT HAPPY WITH IT. WHITENER'S VERSION INDICATES
RESIGNATION RATHER THAN AGREEMENT. HAVING CONCLUDED THAT MANAGEMENT WAS
NOT GOING TO RETREAT FROM ITS POSITION THAT ALLEN COULD NOT BE SPARED,
WHITENER, WHEN HEARING THE SUGGESTION THAT DYER BE UTILIZED AS THE
UNION'S REPRESENTATIVE, INDICATED HER FRUSTRATION AND RESIGNATION BY
RETORTING, "DO I HAVE ANY CHOICE?" AS HER FINAL REMARK BEFORE
TERMINATING THE CONVERSATION. BURNS REPORTED TO THE DIRECTOR THAT DYER
COULD BE THE UNION'S REPRESENTATIVE, AND THE "DIAGONAL SLICE" MEETING
THEREUPON GOT UNDERWAY AND WAS CONCLUDED WITH DYER ACTIVELY
PARTICIPATING AS THE REPRESENTATIVE OF THE UNION.
2. THE "ICE STORM" GRIEVANCES
ON SUNDAY EVENING, JANUARY 7, 1973, A SEVERE ICE STORM STRUCK THE
ATLANTA AREA, KNOCKING DOWN POWER LINES AND FORMING ICE COATINGS ON THE
HIGHWAYS, RESULTING IN HAZARDOUS DRIVING CONDITIONS. RESPONDENT
CANCELLED ITS NIGHT SHIFT SUNDAY AND ALL OPERATIONS AT THE CHAMBLEE
CENTER FOR MONDAY, JANUARY 8. ESTABLISHED NOTIFICATION PROCEDURES WERE
PUT INTO EFFECT, AND FULL OPERATIONS WERE RESUMED AT NOON ON TUESDAY,
JANUARY 9. SOME EMPLOYEES, FOR VARIOUS REASONS RELATED TO THE STORM,
DID NOT RETURN TO WORK UNTIL WEDNESDAY, JANUARY 10. THOSE EMPLOYEES
LEARNED AT THAT TIME THAT THEY WERE TO BE CHARGED 4 HOURS ANNUAL LEAVE
FOR THE AFTERNOON OF TUESDAY, JANUARY 9, ADMINISTRATIVE LEAVE HAVING
BEEN GRANTED FROM SUNDAY NIGHT TO NOON TUESDAY. MANY EMPLOYEES WHO WERE
CHARGED ANNUAL LEAVE FOR TUESDAY AFTERNOON OBJECTED, CLAIMING THAT FOR
VARIOUS REASONS RELATED TO THE STORM THEY COULD NOT GET TO WORK ON THAT
DAY. SOME 33 EMPLOYEES FILED GRIEVANCES. SOME FILED ON A ROUND-ROBIN
TYPE PETITION, OTHERS ON THE OFFICIAL GRIEVANCE FORM, AND SOME DID BOTH.
THE GRIEVING EMPLOYEES IN ALL INSTANCES NAMED JEAN WHITENER, PRESIDENT
OF THE UNION'S LOCAL 070 AND ROY BUCKHOLZ, UNION ATTORNEY, AS THEIR
REPRESENTATIVES. THEY PROTESTED THE DECISION NOT TO GRANT
ADMINISTRATIVE LEAVE FOR THE AFTERNOON OF TUESDAY, JANUARY 9.
SUPERVISORS, ACTING UNDER INSTRUCTIONS FROM THEIR SUPERIORS,
INTERVIEWED THOSE WHO HAD GRIEVED, AND AS A RESULT OF THOSE INTERVIEWS
SOME WITHDREW THEIR GRIEVANCES, SOME REFILED ON THE GRIEVANCE FORM, AND
OTHERS STATED THAT THEY WANTED THEIR GRIEVANCES PROCESSED, EVEN THOUGH,
ACCORDING TO SOME TESTIMONY, THERE WAS STRONG SUGGESTION THAT THEY
WITHDRAW. NEITHER OF THE DESIGNATED REPRESENTATIVES WAS PRESENT AT ANY
OF THESE INDIVIDUAL INTERVIEWS.
THE GRIEVANCES WERE PROCESSED UNDER THE PROCEDURES SET OUT IN
RESPONDENT'S INTERIM HANDBOOK OF EMPLOYEE ADVERSE ACTION AND GRIEVANCE
APPEALS (RESP. EXH. 1). THIS WAS THE ONLY PROCEDURE AVAILABLE, SINCE
THERE WAS NO NEGOTIATED AGREEMENT WITH THE UNION. UNDER THE ESTABLISHED
PROCEDURES A GRIEVANCE EXAMINER WAS APPOINTED AND, AFTER CONDUCTING AN
INVESTIGATION, HE ISSUED HIS REPORT, DISCUSSING EACH CASE SEPARATELY AND
FINDING IN SOME CASES THAT RESPONDENT WAS WARRANTED IN CHARGING ANNUAL
LEAVE, WHILE IN OTHER CASES CONDEMNING SUCH ACTION. THIS REPORT, WHICH
IS IN EVIDENCE AS RESPONDENT'S EXHIBIT 2, IS NOT UNDER ATTACK BY THE
COMPLAINANTS, NOR IS THERE AN ATTEMPT TO RETRY THE GRIEVANCES IN THIS
PROCEEDING. RATHER, COMPLAINANTS ALLEGE SIMPLY THAT THE FAILURE TO
ACCORD THE GRIEVANTS REPRESENTATION OF THEIR CHOICE AT THE INDIVIDUAL
CONFERENCES HELD BY THE SUPERVISORS CONSTITUTED UNFAIR LABOR PRACTICES
UNDER THE ORDER.
COMPLAINANTS ALLEGE THAT RESPONDENT'S FAILURE OR REFUSAL TO ALLOW
ALONZO ALLEN TO ATTEND THE "DIAGONAL SLICE" MEETING CONSTITUTED
VIOLATIONS OF SECTION 19(A)(1) AND (2) OF THE ORDER. /4/ RESPONDENT
CONCEDES THAT ALLEN WAS NOT ALLOWED TO ATTEND THE MEETING AND CONCEDES
ALSO THAT THE UNION HAD THE RIGHT TO HAVE A REPRESENTATIVE PRESENT. IT
ARGUES, HOWEVER, THAT SUCH RIGHT IS NOT ABSOLUTE AND FURTHER THAT THE
UNION WAS ACTUALLY REPRESENTED AT THE MEETING.
WE NEED NOT HERE DECIDE THE APPLICATION OF SECTION 10(E) OF THE
ORDER, FOR RESPONDENT CONCEDES THAT THE UNION HAD A RIGHT TO HAVE A
REPRESENTATIVE PRESENT AT THE "DIAGONAL SLICE" MEETINGS. INDEED, THAT
RIGHT WAS ALWAYS RECOGNIZED AND THE UNION WAS ALWAYS NOTIFIED AND WAS
ALWAYS REPRESENTED. THE PROBLEM WITH THE JANUARY 3 MEETING WAS THAT
JEAN WHITENER HAD A CONFLICT AND WANTED TO NAME A SUBSTITUTE FOR THE
MEETING. IN RESPONDENT'S JUDGMENT THAT SUBSTITUTE COULD NOT BE SPARED.
IN THE ABSENCE OF ANY EVIDENCE OF ILLEGAL MOTIVE I ACCEPT THAT JUDGMENT,
AND FURTHER CONCLUDE THAT IT IS IMMATERIAL WHETHER LATER DEVELOPMENTS
PROVED THAT JUDGMENT TO BE CORRECT OR FAULTY. THE TRAINING PROGRAM
WHICH JEAN WHITENER WANTED TO ATTEND AND WHICH WAS THE CAUSE OF THE
CONFLICT WAS TO BE REPEATED AT A LATER DATE. WHILE NO ONE APPARENTLY
SUGGESTED IT TO HER, SHE UNDOUBTEDLY COULD HAVE ELECTED TO ATTEND A
LATER SESSION AND ATTENDED THE MEETING OF JANUARY 3, JUST AS SHE HAD
ATTENDED SEVERAL SUCH MEETINGS IN THE PAST. INSTEAD, HOWEVER, SHE
INSISTED ON THE EVE OF THE SCHEDULED MEETING, THAT ALONZO ALLEN BE
ALLOWED TO ATTEND IN HER STEAD. THERE WAS NO PREEMPTORY REFUSAL; THERE
WAS, IN MY OPINION, A SINCERE EFFORT TO ACCOMMODATE TO THE SITUATION.
HERE THE RULE OF REASON MUST PREVAIL, AND WHILE THERE WAS NOT
"AGREEMENT", IN THE TRUE SENSE OF THE WORD, IN THE UTILIZATION OF ED
DYER AS THE UNION REPRESENTATIVE AT THE MEETING, THERE WAS SOME
ACQUIESCENCE, ALBEIT BORN OF RESIGNATION AND FRUSTRATION, IN THE
SOLUTION PROPOSED BY RESPONDENT. I DO NOT VIEW THE RIGHT OF A LABOR
ORGANIZATION TO "BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES" TO BE ABSOLUTE AS TO
COMPEL MANAGEMENT TO ADJUST TO LAST MINUTE SUBSTITUTIONS REGARDLESS OF
PROBLEMS RELATING TO THE MISSION OF THE AGENCY. FINALLY, AND NOT THE
LEAST IMPORTANT, IS THE MOTIVATION INVOLVED. IN THE INSTANT CASE THERE
IS NO EVIDENCE WHATSOEVER OF ANY ANTI-UNION ANIMUS ON THE PART OF
RESPONDENT. ON THE CONTRARY, ALL EVIDENCE POINTS TO HARMONIOUS
RELATIONS BASED ON A COMPLETE RECOGNITION OF THE UNION'S RIGHTS AND
MANAGEMENT'S OBLIGATIONS. IN SHORT, I CONCLUDE THAT THERE IS
INSUFFICIENT EVIDENCE TO WARRANT A CONCLUSION THAT RESPONDENT VIOLATED
ANY PROVISIONS OF THE ORDER IN ITS ACTIONS AND CONDUCT SURROUNDING THE
"DIAGONAL SLICE" MEETING.
TURNING NOW TO THE "ICE STORM GRIEVANCES", WE FACE THE SITUATION
WHERE THE ONLY GRIEVANCE PROCEDURE WAS THE ONE PROMULGATED BY
RESPONDENT. THERE NECESSARILY COME INTO PLAY THE PROVISIONS OF SECTION
19(D) OF THE ORDER:
ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
NOT BE RAISED UNDER THIS
SECTION. ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY,
IN THE DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES . . .
COMPLAINANTS ARGUE THAT THEY ARE NOT SELECTING ANOTHER FORUM; THAT
THE GRIEVANCES HAVE BEEN HEARD AND THE DECISION HAS ISSUED. THE ISSUE,
THEY ASSERT, DOES NOT RELATE TO THE GRIEVANCES BUT ONLY TO THE PROCEDURE
IN THE EARLY STAGE OF THE GRIEVANCES, SPECIFICALLY, TO THE FAILURE TO
ALLOW A DESIGNATED REPRESENTATIVE TO BE PRESENT DURING THE INITIAL
INTERVIEWS.
AS POINTED OUT ABOVE, THE ONLY GRIEVANCE PROCEDURE AVAILABLE TO
EMPLOYEES WAS THAT PROMULGATED BY RESPONDENT IN ITS HANDBOOK OF EMPLOYEE
ADVERSE ACTION AND GRIEVANCE APPEALS (RESP. EXH. 1). SECTION 113 OF
THAT DOCUMENT READS AS FOLLOWS:
113. ALLEGATIONS OF UNFAIR LABOR PRACTICES
(1) AN ALLEGATION OF AN UNFAIR LABOR PRACTICE MADE IN CONNECTION WITH
AN APPEAL OR
GRIEVANCE SHALL BE INCORPORATED IN THE APPEAL OR GRIEVANCE AND
PROCESSED UNDER THESE
PROCEDURES WHEN THE ALLEGATION CONSTITUTES A COMPLAINT THAT AGENCY
MANAGEMENT HAS:
(A) INTERFERED WITH, RESTRAINED, OR COERCED AN EMPLOYEE IN THE
EXERCISE OF THE RIGHTS
ASSURED BY EXECUTIVE ORDER 11491;
(B) ENCOURAGED OR DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITION OF
EMPLOYMENT; OR
(C) DISCIPLINED OR OTHERWISE DISCRIMINATED AGAINST AN EMPLOYEE
BECAUSE HE FILED A COMPLAINT
OR GAVE TESTIMONY UNDER EXECUTIVE ORDER 11491.
WHILE COMPLAINANTS ARGUE THAT THEY NEVER ALLEGED AN UNFAIR LABOR
PRACTICE IN THE GRIEVANCES, IT IS CLEAR THAT THEY COMPLAINED TO THE
GRIEVANCE EXAMINER ABOUT RESPONDENT'S SUPERVISORS HAVING CONDUCTED
INTERVIEWS WITHOUT ALLOWING DESIGNATED REPRESENTATIVES TO BE PRESENT.
THUS, IN A LETTER TO THE GRIEVANCE EXAMINER FROM A NATIONAL FIELD
REPRESENTATIVE OF THE UNION THERE IS THIS STATEMENT:
. . . THE RECORD SHOULD INDICATE THAT IN EACH INSTANCE THE EMPLOYEE
WAS APPROACHED BY HIS
OR HER SUPERVISOR AND A DISCUSSION REGARDING THE SUBJECT MATTER OF
THE GRIEVANCE ENSUED. THE
OFFICIAL UNION REPRESENTATIVES WERE NOT INFORMED NOR GIVEN A CHANCE
TO BE PRESENT AT THESE
MEETINGS . . . (RESP. EXH. 3)
AND THE GRIEVANCE EXAMINER SPOKE TO THIS ISSUE. ON PAGE 1 OF HIS
REPORT HE STATES:
. . . A REVIEW OF THE ACTIONS TAKEN INDICATED THAT THE SERVICE CENTER
FAILED TO COMPLY WITH
TWO PROCEDURAL REQUIREMENTS OF THE CIVIL SERVICE COMMISSION AND
SERVICE REGULATIONS IN THE
INFORMAL STAGES OF THESE GRIEVANCES. ALL THE GRIEVANTS WERE NOT
AFFORDED AN OPPORTUNITY TO
DISCUSS THEIR DISSATISFACTION WITH THEIR IMMEDIATE SUPERVISORS. THE
REPRESENTATIVES OF THOSE
EMPLOYEES WHO WERE COUNSELLED BY THEIR IMMEDIATE SUPERVISORS WERE NOT
GIVEN NOTICE OF THE
MEETINGS. NEITHER OF THESE PROCEDURAL ERRORS PROVED FATAL.
THEREFORE, THE GRIEVANCE EXAMINER
WENT INTO THE FORMAL STAGES OF THE GRIEVANCE PROCEDURE . . . (RESP.
EXH. 2)
I CONCLUDE THAT THE PROVISIONS OF SECTION 19(D) OF THE ORDER ARE
CLEARLY APPLICABLE TO THE SITUATION PRESENTED HERE. COMPLAINANTS
PURSUED THE MATTER THROUGH THE ESTABLISHED GRIEVANCE PROCEDURE AND
CANNOT NOW PROCESS THEIR COMPLAINT THROUGH THE UNFAIR LABOR PRACTICE
PROCEDURE AFFORDED IN THE ORDER. TO HOLD OTHERWISE WOULD DO VIOLENCE TO
THE PROVISIONS OF SECTION 19(D).
THE SITUATION HERE IS NOT UNLIKE THAT IN OFFICE OF ECONOMIC
OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 334, WHICH WAS
RECENTLY AFFIRMED IN PERTINENT PART BY THE FEDERAL LABOR RELATIONS
COUNCIL (FLRC NO. 74 A-3). THERE THE ASSISTANT SECRETARY STATED:
. . . (W)HERE, AS HERE, THE GRIEVANCE PROCEDURE WHICH ALLEGEDLY HAS
BEEN VIOLATED BY THE
AGENCY INVOLVED, IS A PROCEDURE ESTABLISHED BY THE AGENCY ITSELF
RATHER THAN THROUGH THE
PROCESS OF BILATERAL NEGOTIATIONS, I FIND THAT DIFFERENT
CONSIDERATIONS APPLY. THUS, AN
AGENCY GRIEVANCE PROCEDURE DOES NOT RESULT FROM ANY RIGHTS ACCORDED
TO INDIVIDUAL EMPLOYEES OR
TO LABOR ORGANIZATIONS UNDER THE ORDER. MOREOVER, SUCH A PROCEDURE
IS APPLICABLE TO ALL
EMPLOYEES OF AN AGENCY NOT COVERED BY A NEGOTIATED PROCEDURE,
REGARDLESS OF WHETHER OR NOT
THEY ARE INCLUDED IN EXCLUSIVELY RECOGNIZED BARGAINING UNITS. UNDER
THESE CIRCUMSTANCES, I
FIND THAT, EVEN ASSUMING THAT AN AGENCY IMPROPERLY FAILS TO APPLY THE
PROVISIONS OF ITS OWN
GRIEVANCE PROCEDURE, SUCH A FAILURE, STANDING ALONE, CANNOT BE SAID
TO INTERFERE WITH RIGHTS
ASSURED UNDER THE ORDER AND THEREBY BE VIOLATIVE OF SECTION 19(A)(1)
. . . AND, IN THE ABSENCE OF EVIDENCE OF DISCRIMINATORY MOTIVATION OR
DISPARITY OF
TREATMENT BASED ON UNION MEMBERSHIP, CONSIDERATIONS, I FIND . . .
THAT THE RESPONDENT'S
CONDUCT HEREIN WAS NOT VIOLATIVE OF SECTION 19(A)(2) OF THE ORDER . .
.
THE RATIONALE AND CONCLUSIONS QUOTED ABOVE WITH RESPECT TO THE
UTILIZATION OF A UNILATERALLY ESTABLISHED AGENCY GRIEVANCE PROCEDURE ARE
EQUALLY APPLICABLE TO THE FACTS PRESENTED HEREIN, AND IN THE ABSENCE OF
ANY PROBATIVE EVIDENCE INDICATING THAT THE DENIAL OF REPRESENTATION TO
THE GRIEVANTS WAS DISCRIMINATORILY MOTIVATED OR CONSTITUTED DISPARATE
TREATMENT BASED ON UNION CONSIDERATIONS, I CONCLUDE THAT THERE IS
INSUFFICIENT BASIS FOR FINDING ANY VIOLATION OF THE ORDER.
IN SUMMARY, CONSIDERING ALL THE EVIDENCE IN THIS CASE, I FIND AND
CONCLUDE THAT THE RECORD DOES NOT SUPPORT A FINDING THAT RESPONDENT
VIOLATED THE EXECUTIVE ORDER AS ALLEGED IN THE COMPLAINT.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED IN ITS ENTIRETY.
DATED, JUNE 27, 1974
WASHINGTON, D.C.
/1/ COMPLAINANTS' NAMES ARE SHOWN AS AMENDED AT THE HEARING.
/2/ AT THE HEARING HEREIN COMPLAINANTS WITHDREW ALLEGATION NO. 2,
(TR. 89-91)
/3/ DYER WAS THE ELECTED HISTORIAN OF CHAPTER 070 AND ALSO WAS THE
SHOP STEWARD IN THE SECTION WHERE HE WORKED.
/4/ THE COMPLAINT AGAINST AGENCY (ASST. SEC'S EXH. 1-A) ALLEGES
VIOLATIONS OF SECTION 19(A)(1)(2) AND (6) OF THE ORDER, BUT EACH OF THE
THREE INCIDENTS DESCRIBED IN THE COMPLAINT MAKES REFERENCE TO AN
ATTACHED LETTER FROM THE NATIONAL PRESIDENT OF THE UNION WHICH ALLEGES
SEPARATE VIOLATIONS FOR EACH INCIDENT. WITH REFERENCE TO THE "DIAGONAL
SLICE" MEETING, THE LETTER MENTIONS "ALONZO BELL". I FIND THIS TO BE AN
INADVERTENCE AND THAT IT SHOULD READ "ALONZO ALLEN". THAT SAME LETTER
ATTACHED TO THE COMPLAINT ALLEGES VIOLATIONS OF SECTION 19(A)(1) AND
(2). THIS MAY BE ANOTHER INADVERTENCE IN FAILING TO MENTION SUBSECTION
(6). WHILE IT IS DIFFICULT TO SEE THE APPLICATION OF SUBSECTION (2), IT
IS NOTED THAT COMPLAINANTS' BRIEF STATES THAT THE ISSUES CONCERNING THE
MEETING IN QUESTION RELATE TO SECTIONS 19(A)(1)(2) AND (6) AND IN ONE
PLACE IN THE BRIEF (PROBABLY INADVERTENTLY) MENTIONS SUBSECTION (A)(3)
AS BEING IN ISSUE. I HAVE TREATED THE PLEADINGS IN THE BROADEST ASPECT
AND HAVE CONSIDERED THE MATTER AS IF EVERY SECTION OR SUBSECTION
MENTIONED HAD BEEN PROPERLY PLEADED.
4 A/SLMR 447; P. 742; CASE NO. 52-4956; OCTOBER 31, 1974.
UNITED STATES ARMY TANK AUTOMATIVE
COMMAND, WARREN, MICHIGAN
A/SLMR NO. 447
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
1658, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
(COMPLAINANT) AGAINST UNITED STATES ARMY TANK AUTOMOTIVE COMMAND,
WARREN, MICHIGAN (RESPONDENT). THE COMPLAINT ALLEGED THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE EXECUTIVE ORDER BY
PLACING AN EMPLOYEE MEMBER OF THE COMPLAINANT IN AN AUTHORIZED GS-13
POSITION WHILE KEEPING HIM AT THE GS-12 LEVEL, AND BY FAILING TO FULFILL
ITS PROMISE TO PROMOTE HIM AFTER SERVING AS TEAM CHIEF, THEREBY
DISCOURAGING MEMBERSHIP IN THE COMPLAINANT.
THE ADMINISTRATIVE LAW JUDGE, IN RECOMMENDING DISMISSAL OF THE
COMPLAINT, CONCLUDED THAT THE ISSUE OF JOB CONTENT RAISED BY THE
COMPLAINT, THAT IS, WHETHER THE EMPLOYEE INVOLVED WAS PERFORMING GS-13
WORK WHILE BEING PAID AT THE GS-12 LEVEL, COUND PROPERLY BE RAISED UNDER
THE RESPONDENT'S JOB EVALUATION COMPLAINT AND APPEALS PROCEDURE AND,
THEREFORE, SECTION 19(D) OF THE ORDER WOULD CONSTITUTE A BAR TO THE
PROCEEDING.
IN MAKING THIS DETERMINATION, THE ADMINISTRATIVE LAW JUDGE NOTED THAT
A STATEMENT MADE TO THE EMPLOYEE BY HIS SUPERVISOR THAT SO LONG AS HE
WAS ACTIVE IN THE UNION, HE WOULD NEVER BE PROMOTED TO GS-13, (WHICH WAS
NOT ALLEGED AS AN INDEPENDENT VIOLATION OF SECTION 19(A)(1)), HAD BEEN
FULLY EXPLAINED AND BROUGHT INTO PROPER CONTEXT BY SUBSEQUENT TESTIMONY
AT THE HEARING. THUS, IN HIS VIEW, THE MOTIVATION FOR SUCH STATEMENT
WAS BASED UPON THE SUPERVISOR'S BELIEF THAT THE EMPLOYEE'S UNION
BUSINESS TOOK UP SO MUCH TIME THAT HE WAS PREVENTED FROM FULLY
DEVELOPING HIS POTENTIAL.
THE ASSISTANT SECRETARY FOUND, UNDER THE CIRCUMSTANCES OF THIS CASE,
THAT IF THE ABOVE STATEMENT BY THE EMPLOYEE'S SUPERVISOR HAD BEEN
PROPERLY ALLEGED IN THE COMPLAINT AS AN INDEPENDENT VIOLATION OF SECTION
19(A)(1) OF THE ORDER, RATHER THAN ALLEGED AS EVIDENCE OF DISCRIMINATORY
MOTIVATION IN THE DENIAL OF A PROMOTION, HE WOULD FIND THAT IT
IMPROPERLY INTERFERED WITH, RESTRAINED, OR COERCED THE EMPLOYEE IN THE
EXERCISE OF HIS RIGHTS ASSURED UNDER THE ORDER. HE NOTED THAT TO ADOPT
THE ADMINISTRATIVE LAW JUDGE'S RATIONALE THAT SUCH STATEMENT WAS
PROPERLY EXPLAINED BY THE RESPONDENT WOULD RESULT IN IMPROPERLY
PENALIZING EMPLOYEES WHO, AS UNION REPRESENTATIVES, ARE EXERCISING
RIGHTS ASSURED UNDER THE ORDER AND CONTAINED IN NEGOTIATED AGREEMENTS.
UNDER THE CIRCUMSTANCES, THE ASSISTANT SECRETARY, NOTING THAT NO
EXCEPTIONS WERE FILED, ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION THAT THE INSTANT COMPLAINT BE DISMISSED BASED ON SECTION
19(D) OF THE ORDER.
UNITED STATES ARMY TANK AUTOMOTIVE
COMMAND, WARREN, MICHIGAN
AND
LOCAL 1658, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
ON JULY 29, 1974, ADMINISTRATIVE LAW JUDGE THOMAS W. KENNEDY ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDATION THAT THE INSTANT COMPLAINT BE DISMISSED.
IN HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE LAW JUDGE
REFERRED TO A STATEMENT MADE BY EMPLOYEE PORTER'S SUPERVISOR THAT SO
LONG AS PORTER WAS ACTIVE IN THE UNION HE WOULD NEVER BE PROMOTED TO
GS-13, AND CONCLUDED THAT SUCH STATEMENT (WHICH WAS NOT ALLEGED TO
CONSTITUTE AN INDEPENDENT VIOLATION OF SECTION 19(A)(1) BUT, RATHER, WAS
ALLEGED TO CONSTITUTE EVIDENCE OF DISCRIMINATORY MOTIVATION IN THE
DENIAL OF A PROMOTION) WAS FULLY EXPLAINED AND BROUGHT INTO PROPER
CONTEXT BY SUBSEQUENT TESTIMONY. IN THIS REGARD, THE ADMINISTRATIVE LAW
JUDGE NOTED THAT AT THE TIME THE STATEMENT WAS MADE PORTER WAS SPENDING
SOMEWHERE AROUND 70 PERCENT OF HIS TIME ON UNION MATTERS WHILE THE
NEGOTIATED AGREEMENT IN EFFECT AT THE TIME PROVIDED UNION OFFICIALS
EMPLOYED BY THE RESPONDENT WITH ONLY A "REASONABLE" TIME FOR ENGAGING IN
SUCH ACTIVITY. THUS, IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, THE
MOTIVATION FOR SUCH STATEMENT WAS BASED UPON THE SUPERVISOR'S BELIEF
THAT PORTER'S UNION BUSINESS TOOK UP SO MUCH OF HIS TIME THAT HE WAS
PREVENTED FROM FULLY DEVELOPING HIS POTENTIAL.
UNDER THE CIRCUMSTANCES OF THIS CASE, IF PROPERLY ALLEGED IN THE
COMPLAINT AS AN INDEPENDENT VIOLATION OF SECTION 19(A)(1), I WOULD FIND
THAT THE ABOVE STATEMENT BY PORTER'S SUPERVISOR IMPROPERLY INTERFERED
WITH, RESTRAINED, OR COERCED PORTER IN THE EXERCISE OF HIS RIGHTS
ASSURED UNDER SECTION 1(A) OF THE ORDER. TO ADOPT THE ADMINISTRATIVE
LAW JUDGE'S RATIONALE THAT SUCH STATEMENT WAS PROPERLY EXPLAINED BY THE
RESPONDENT BASED ON THE LATTER'S BELIEF THAT PORTER'S UNION BUSINESS
PREVENTED HIM FROM FULLY DEVELOPING HIS POTENTIAL WOULD, IN MY VIEW,
RESULT IN IMPROPERLY PENALIZING EMPLOYEES WHO, AS UNION REPRESENTATIVES,
ARE EXERCISING RIGHTS ASSURED UNDER THE ORDER AND CONTAINED IN
NEGOTIATED AGREEMENTS. HOWEVER, NOTING THAT THE SUPERVISOR'S STATEMENT
HEREIN WAS NOT ALLEGED AS A VIOLATION OF THE ORDER AND THE ABSENCE OF
EXCEPTIONS, I FIND THAT FURTHER PROCEEDINGS IN THIS REGARD UNDER SECTION
19(A)(1) ARE UNWARRANTED. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 52-4956 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 31, 1974
/1/ WITH RESPECT TO THE REFERENCE ON PORTER'S APPRAISAL FORM MADE BY
SUPERVISOR BILYK CONCERNING PORTER'S UNION ACTIVITY, IT WAS CONCLUDED
THAT FURTHER PROCEEDINGS IN THIS REGARD ARE UNWARRANTED IN VIEW OF THE
FACT THAT SUCH REFERENCE SUBSEQUENTLY WAS DELETED. NOR WAS THIS MATTER
ALLEGED TO CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
COMPARE WESTERN DIVISION OF NAVAL FACILITIES ENGINEERING COMMAND, SAN
BRUNO, CALIFORNIA, A/SLMR NO. 264.
IN THE MATTER OF
UNITED STATES ARMY TANK AUTOMOTIVE
COMMAND,
WARREN, MICHIGAN
AND
LOCAL 1658, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
CLYDE W. MCKENZIE, ESQUIRE
UNITED STATES ARMY TANK
AUTOMOTIVE COMMAND
WARREN, MICHIGAN 48090
GARY B. LANDSMAN, ESQUIRE
STAFF COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
JOSEPH H. JAMES, ESQUIRE
STAFF COUNSEL
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
8335 OHIO STREET
DETROIT, MICHIGAN 48204
BEFORE: THOMAS W. KENNEDY
ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON OCTOBER 4, 1973,
BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICE
ADMINISTRATION, CHICAGO REGION, BASED ON A COMPLAINT FILED ON APRIL 17,
1973, BY LOCAL 1658, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (HEREIN CALLED COMPLAINANT OR UNION). THE COMPLAINT WAS FILED
AGAINST UNITED STATES MARY TANK AUTOMOTIVE COMMAND, WARREN, MICHIGAN
(HEREIN CALLED RESPONDENT) AND ALLEGES VIOLATIONS OF SECTION 19,
SUB-SECTIONS (A)(11) AND (A)(2) OF THE ORDER, IN THAT RESPONDENT
DISCRIMINATED AGAINST TWO UNION MEMBERS, RALPH I. PORTER AND ALBERT E.
BEAUFORE, BY PLACING THEM IN AUTHORIZED GS-13 POSITIONS WHILE KEEPING
THEM AT THE GS-12 LEVEL. /1/ THE COMPLAINT GOES ON TO STATE THAT THE
TWO UNION MEMBERS WERE PROMISED PROMOTIONS AFTER SERVING AS TEAM CHIEFS
BUT THAT AFTER SO SERVING THEY WERE NOT PROMOTED AND THAT SUCH
DISCRIMINATION DISCOURAGED MEMBERSHIP IN THE UNION.
A HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED
ADMINISTRATIVE LAW JUDGE ON DECEMBER 4, 1973, AND APRIL 24 AND 25, 1974,
IN DETROIT, MICHIGAN. /2/ ALL PARTIES WERE REPRESENTED BY COUNSEL AND
WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. OPPORTUNITY WAS ALSO AFFORDED THE
PARTIES TO ARGUE ORALLY AND TO FILE BRIEFS. COMPLAINANT, BY ITS
PRESIDENT, FILED A BRIEF, AND RESPONDENT FILED MOTION TO DISMISS, WHICH
DOCUMENTS HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
A. THE FAILURE TO PROMOTE
RALPH I. PORTER HAS BEEN EMPLOYED BY RESPONDENT FOR APPROXIMATELY
ELEVEN YEARS. DURING THE TIME MATERIAL HEREIN HE WAS CLASSIFIED AS COST
ACCOUNTANT, GS-12. HE WAS ALSO DURING TIMES MATERIAL HEREIN THE
PRESIDENT OF LOCAL 1658, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
THE COMPLAINANT IN THIS CASE.
AMONG RESPONDENT'S OPERATIONS IS THE COST ECONOMIC INFORMATION
OFFICE, REFERRED TO AS CEI, UNDER THE SUPERVISION OF WALTER S. BILYK.
THE MISSION OF THAT OFFICE, WHICH INVOLVES MANAGEMENT CONTROL SYSTEMS IN
THE ACQUISITION PROCESS, WAS FIRST ASSIGNED TO RESPONDENT IN 1968, BUT
THE OFFICE WAS NOT STAFFED UNTIL THE END OF 1969, FOLLOWING A REDUCTION
IN FORCE (RIF) AND THE CONSEQUENT REORGANIZATION OF RESPONDENT'S OFFICE
OF PROCUREMENT AND PRODUCTION. IN EARLY JULY 1970, AS A RESULT OF
ANOTHER RIF, THE CEI OFFICE WAS RECONSTITUTED, AT WHICH TIME RALPH
PORTER, WHOSE POSITION HAD BEEN ABOLISHED IN THE RIF, WAS ASSIGNED TO
CEI AS A COST ACCOUNTANT, GS-12. ALBERT BEAUFORE, CLASSIFIED AS
ECONOMIST, WAS ALREADY A PART OF CEI, HAVING BEEN IN THAT OFFICE SINCE
IT BECAME OPERATIONAL IN JANUARY OF 1970. THE GRAVAMEN OF THE COMPLAINT
IS THAT RESPONDENT ASSIGNED PORTER AND BEAUFORE, TWO UNION MEMBERS, TO
GS-13 POSITIONS BUT RETAINED THEM AT THE GS-12 PAY LEVEL. /3/
APPARENTLY PORTER'S PERFORMANCE WAS MORE THAN SATISFACTORY, FOR IN
HIS CAREER APPRAISAL EXECUTED IN OCTOBER 1971, CHIEF BILYK DESCRIBED
PORTER'S SKILLS AND CHARACTERISTICS IN GLOWING TERMS AND ASSIGNED A
RATING OF "OUTSTANDING" OR "ABOVE AVERAGE" IN ALL DELINEATED CATEGORIES.
THAT APPRAISAL FORM, WHICH IS IN EVIDENCE AS COMPLAINANT'S EXHIBIT 16,
ALSO CONTAINED THE FOLLOWING COMMENT BY SUPERVISORY BILYK:
MR. PORTER'S POSITION AS PRESIDENT OF AFGE UNION IS INCREASINGLY
DEMANDING MORE OF HIS
TIME. THIS RESULTS IN A LESS THAN DESIRABLE WORK SITUATION FOR
PRODUCTIVITY AND DEVELOPMENT
IN OFFICE MISSION RESPONSIBILITY. HE HAS ACQUIRED THE SPECIALIZED
TRAINING ESTABLISHED FOR
THE 0FFICE MISSION AND HAS THE POTENTIAL FOR HANDLING GREATER MISSION
RESPONSIBILITY. THIS
WAS DEMONSTRATED BY HIS EXCELLENT PERFORMANCE AS A TEAM MEMBER FOR
MANAGEMENT SYSTEMS ANALYSIS
OF LTV ON THE LANCE MISSILE.
AROUND APRIL OF 1972 PORTER FILED A GRIEVANCE OVER THE FAILURE OF
RESPONDENT TO PROMOTE HIM. AFTER PROCEEDING THROUGH THE FIRST TWO STEPS
WITH NEGATIVE RESULTS, PORTER, ON JUNE 16, 1972, WROTE TO RESPONDENT'S
COMMANDING GENERAL PIELIK, REQUESTING THAT THE GRIEVANCE BE FURTHER
PROCESSED. IN THAT LETTER PORTER STATED:
THE EXACT NATURE OF MY GRIEVANCE IS:
(A) THERE ARE FIVE GS-13 POSITIONS IN THE DIVISION. DURING THE PAST
TWO YEARS I HAVE
FILLED ONE OF THE POSITIONS AS A GS-12. AT VARIOUS TIMES THREE OF
THE OTHER POSITIONS HAVE
BEEN FILLED BY GS-13'S; ONE IS STILL FILLED AT THE GS-13 LEVEL; YET
WE HAVE ALL BEEN DOING THE
SAME LEVEL OF WORK. (B) THE CORRECTIVE ACTION REQUESTED IS THAT I BE
PROMOTED
(NONCOMPETITIVELY) TO A GS-13 POSITION RETROACTIVE TO THE DATE I
STARTED WORK IN THE CEI
OFFICE. THIS ACTION WOULD BE IN CONSONANCE WITH THE COMMANDING
GENERAL'S STATEMENT THAT AN
"EQUAL DAY'S PAY BE GIVEN FOR AN EQUAL DAY'S WORK." /4/
ON JULY 20, 1972, CIVILIAN PERSONNEL OFFICER BLAKESLEE WROTE TO
PORTER, ADVISING THAT THE U.S. ARMY CIVILIAN APPELLATE REVIEW AGENCY
(USACARA), THE FINAL AUTHORITY IN THE GRIEVANCE PROCEDURE, HAD DENIED
THE GRIEVANCE. THE LETTER, IN EVIDENCE AS RESPONDENT'S EXHIBIT 1,
STATED THAT PORTER'S GRIEVANCE WAS REJECTED "BECAUSE IT PERTAINED SOLELY
TO POSITION AND PAY MANAGEMENT MATTERS. A GRIEVANCE ARISING FROM A
POSITION CLASSIFICATION DETERMINATION NOT INVOLVING AN ADVERSE PERSONNEL
ACTION IS SPECIFICALLY EXCLUDED FROM PROCESSING UNDER THE GRIEVANCE
PROCEDURE . . . " THE LETTER WENT ON TO STATE:
IN THE PROCESS OF REJECTING YOUR GRIEVANCE, USACARA DETERMINED THAT
THE JOB EVALUATION
COMPLAINT AND APPEAL PROCEDURE IS THE APPROPRIATE PROCEDURE FOR YOU
TO USE IN SEEKING A
SATISFACTORY RESOLUTION OF YOUR COMPLAINT. IN THIS RESPECT, YOUR
ATTENTION IS PARTICULARLY
DIRECTED TO SECTION 11B, PARAGRAPH 9 OF THE INCLOSED REPORT OF
FINDINGS AND RECOMMENDATIONS.
JOB EVALUATION COMPLAINT AND APPEAL PROCEDURE IS CONTAINED IN CHAPTER
26, SUPERVISOR'S
PERSONNEL MANAGEMENT MANUAL. MISS TRUDY BACH OF THE POSITION AND PAY
MANAGEMENT BRANCH,
EXTENSION 31304, IS AVAILABLE TO ANSWER ANY QUESTIONS YOU MIGHT HAVE
CONCERNING THE PROCEDURE
TO BE FOLLOWED.
PORTER DID NOT PURSUE THE MATTER THROUGH THE CLASSIFICATION APPEALS
PROCEDURE. AT THE HEARING HE TESTIFIED THAT THE REASON HE DID NOT
FOLLOW SUCH COURSE WAS THAT HIS EXPERIENCE WITH THE AGENCY APPEALS
PROCEDURE WHILE REPRESENTING EMPLOYEES WAS SUCH THAT HE HAD NO FAITH
THAT HE COULD PREVAIL BY TAKING SUCH COURSE OF ACTION. IN FACT, IN JUNE
1972 PORTER WROTE TO TWO U.S. CONGRESSMEN TO COMPLAIN, AMONG OTHER
THINGS, THAT "(T)HE ARMY DOES NOT PROVIDE GRIEVANCE PROCEDURES THAT
AFFORD ANY APPRECIABLE RELIEF TO GRIEVING EMPLOYEES." /5/
IN SEPTEMBER 1972 RESPONDENT MADE A COMMITMENT TO PORTER AND BEAUFORE
TO CONSIDER THEM FOR PROMOTION TO GS-13 IF THEY DEMONSTRATED THEIR
ABILITY TO SERVE IN THE CAPACITY OF TEAM CHIEF AND CONDUCT A CONTRACT
DEMONSTRATION REVIEW, A COMPLICATED TASK INVOLVING THE COORDINATION OF
MANY PHASES OF A MANAGEMENT SYSTEM ANALYSIS, CULMINATING IN THE
PREPARATION AND DISSEMINATION OF A WRITTEN REPORT. APPARENTLY PURSUANT
TO THIS COMMITMENT, RESPONDENT ON OCTOBER 19, 1972, ISSUED SPECIAL
ORDERS APPOINTING MEMBERS TO A DEMONSTRATION REVIEW TEAM AND NAMING
PORTER AS TEAM CHIEF AND BEAUFORE AS ASST. TEAM CHIEF. THE TEAM
PERFORMED ITS TASK AND ISSUED ITS DEMONSTRATION REVIEW REPORT IN MARCH
1973. THERE IS NO CONTENTION THAT PORTER'S PERFORMANCE AS TEAM CHIEF
WAS OTHER THAN CREDITABLE.
WHILE PERFORMING AS TEAM CHIEF, PORTER, IN FEBRUARY 1973, WROTE TO
RESPONDENT TO REMIND THE CHIEF OF STAFF OF THE COMMITMENT MADE /6/ AND
ON MARCH 1, 1973, WROTE TO RESPONDENT'S COMMANDING GENERAL, CHARGING AN
UNFAIR LABOR PRACTICE BY ASSIGNING HIM TO A GS-13 POSITION WHILE
RETAINING HIM IN THE GS-12 PAY GRADE. /7/ THERE WERE TWO SEPARATE
REACTIONS TO THIS LETTER. ON MARCH 29, 1973, COLONEL RICE, PROCUREMENT
& PRODUCTION DIRECTOR, WROTE TO THE CIVILIAN PERSONNEL OFFICER, PRAISING
THE WORK OF PORTER AS TEAM CHIEF, MAKING REFERENCE TO THE COMMITMENT TO
CONSIDER FOR PROMOTION, AND RECOMMENDING THAT PORTER "BE CONSIDERED FOR
PROMOTION TO GS-510-13." /8/ ON THE FOLLOWING DAY, MARCH 30, THE
CIVILIAN PERSONNEL OFFICER WROTE TO PORTER, ACKNOWLEDGING HIS MARCH 1
LETTER AND ADVISING THAT A DETERMINATION HAD BEEN MADE THAT HIS
PERFORMANCE WARRANTED CONSIDERATION FOR PROMOTION TO GS-13, BUT THAT ANY
SUCH PROMOTION WOULD HAVE TO BE ACCOMPLISHED THROUGH COMPETITIVE
PROMOTION PROCEDURES. THE LETTER CONCLUDED WITH THE STATEMENT THAT
"(A)NY MANAGEMENT ACTION WILL BE DEFERRED UNTIL THE CURRENT REALIGNMENT
ACTIONS ARE FINALIZED AND A DETERMINATION MADE BY THE COMPTROLLER THAT
THERE IS A CONTINUING REQUIREMENT FOR A GS-510-13 POSITION." /9/
PROMOTION DID NOT MATERIALIZE, AND PORTER, ON APRIL 11, 1973, FILED THE
COMPLAINT HEREIN.
B. MOTIVATION
THERE IS TESTIMONY BY PORTER THAT RESPONDENT ENGAGED IN HARASSING
TACTICS DIRECTED TOWARD HIM BECAUSE HE ZEALOUSLY PERFORMED HIS UNION
DUTIES. THIS TESTIMONY IS VAGUE AND GENERAL AT BEST AND, OTHER THAN THE
FAILURE TO PROMOTE HIM, REFERS MOSTLY TO THE REQUIREMENT THAT HE
DOCUMENT HIS TELEPHONE CALLS AND ACCOUNT FOR HIS TIME. BUT EVEN AS TO
THAT, PORTER CONCEDED THAT SUCH TACTICS HAD CEASED. THERE IS, HOWEVER,
ONE STATEMENT ATTRIBUTED TO RESPONDENT, WHICH, STANDING ALONE, OFFERS
STRONG SUPPORT TO THE ALLEGATION THAT THE FAILURE TO PROMOTE PORTER WAS
RELATED TO HIS UNION ACTIVITY. THUS, PORTER TESTIFIED THAT HIS
SUPERVISOR, CHIEF BILYK, HAD STATED THAT AS LONG AS PORTER WAS AS ACTIVE
AS HE WAS IN THE UNION, HE WOULD NEVER BE PROMOTED TO GS-13. BILYK DID
NOT TESTIFY, NOR DID RESPONDENT OFFER ANY EXPLANATION FOR NOT CALLING
HIM TO TESTIFY. CONSEQUENTLY, THE STATEMENT ATTRIBUTED TO BILYK IS
UNDENIED, AND I FIND THAT IT WAS MADE BY HIM. THAT STATEMENT,
INTERESTINGLY ENOUGH, WAS BROUGHT OUT IN CROSS-EXAMINATION OF PORTER,
BUT THROUGH FURTHER CROSS-EXAMINATION IT WAS BROUGHT INTO PROPER CONTEXT
AND FULLY EXPLAINED. PORTER TESTIFIED THAT AT THE TIME THE STATEMENT
WAS MADE HE WAS SPENDING SOMEWHERE AROUND 70% OF HIS TIME ON UNION
BUSINESS AND THAT LATER HE SPENT 100% OF HIS TIME ON UNION MATTERS. THE
CONTRACT IN EFFECT AT THE TIME PROVIDED "REASONABLE" TIME FOR UNION
BUSINESS BY UNION OFFICIALS EMPLOYED BY RESPONDENT. THE STATEMENT,
THEN, TAKES ON NEW MEANING WHEN WE CONSIDER THAT THE SUPERVISOR WHO MADE
IT IS THE SAME ONE WHO INCLUDED IN AN APPRAISAL FORM A STATEMENT
PRAISING PORTER'S ABILITY, PERFORMANCE AND POTENTIAL, BUT LAMENTING THE
FACT THAT PORTER'S UNION BUSINESS TOOK UP SO MUCH OF HIS TIME THAT HE
WAS PREVENTED FROM FULLY DEVELOPING HIS POTENTIAL. /10/ NOTHING ELSE
WAS ADDUCED TO ATTRIBUTE AN ILLEGAL MOTIVE TO THE FAILURE TO PROMOTE
PORTER TO GS-13. INDEED, HE WAS GIVEN A SPECIAL ASSIGNMENT TO AID IN
QUALIFYING FOR PROMOTION AND WAS PRAISED FOR HIS PERFORMANCE AND
RECOMMENDED FOR CONSIDERATION FOR PROMOTION.
PORTER SOUGHT TO BE RECLASSIFIED TO GRADE GS-13 BECAUSE HE CLAIMED HE
WAS PERFORMING GS-13 WORK. THIS WAS THE SOLE BASIS SET OUT IN THE
GRIEVANCE HE FILED. THAT GRIEVANCE WAS DENIED AT THE FINAL STAGE OF THE
AGENCY GRIEVANCE PROCEDURE.
SECTION 19(D) OF THE ORDER STATES IN PART:
. . . ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN
THE DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES.
HERE PORTER CHOSE TO SEEK HIS REMEDY VIA THE GRIEVANCE ROUTE, AND THE
ABOVE-QUOTED PROVISION OF SECTION 19(D) APPEARS TO BE CLEARLY
APPLICABLE. BUT THE GRIEVANCE WAS DENIED, NOT ON THE MERITS, BUT ON THE
GROUND THAT THE MATTER INVOLVED THE PAY RATE FOR THE WORK PERFORMED AND
THAT ANY REMEDY MUST BE PROCESSED THROUGH THE AGENCY'S APPEAL PROCEDURE
OR FILED DIRECTLY WITH THE CIVIL SERVICE COMMISSION (5 CFR 511.603 ET
SEQ.). IT COULD BE ARGUED, THEN, THAT SINCE A GRIEVANCE COULD NOT BE
FILED TO REMEDY PORTER'S SITUATION, THE REJECTION OF THE GRIEVANCE AT
THE FINAL STAGE CONSTITUTED NULLIFICATION, AND PORTER SHOULD NOT BE
CHARGED WITH HAVING UTILIZED THE GRIEVANCE PROCEDURE. STATED ANOTHER
WAY, SINCE THE ISSUE COULD NOT "BE RAISED UNDER A GRIEVANCE PROCEDURE,"
THEN THE ABOVE-QUOTED PROVISION OF SECTION 19(D) SHOULD NOT APPLY. BUT
THEN THERE MUST COME INTO PLAY THE FIRST SENTENCE OF SECTION 19(D):
ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
NOT BE RAISED UNDER THIS
SECTION . . .
WHILE IT IS NOT CLEAR WHETHER THE ISSUE OF MOTIVATION; THAT IS,
WHETHER RESPONDENT WAS MOTIVATED BY UNION CONSIDERATIONS, COULD BE
RAISED UNDER THE CLASSIFICATION APPEAL PROCEDURE, IT IS CLEAR THAT THE
ISSUE OF JOB CONTENT; THAT IS, WHETHER PORTER WAS PERFORMING GS-13 WORK
WHILE BEING PAID GS-12 SALARY, COULD "PROPERLY BE RAISED" UNDER
RESPONDENT'S JOB EVALUATION COMPLAINT AND APPEAL PROCEDURE. INDEED, IN
MY VIEW, THE CLASSIFICATION APPEAL PROCESS IS THE ONLY MEANS OF
DETERMINING WHETHER PORTER WAS PROPERLY CLASSIFIED. THEREFORE, SECTION
19(D) OF THE ORDER WOULD CONSTITUTE A BAR TO THIS PROCEEDING, WHETHER WE
CONSIDER PORTER AS HAVING UTILIZED THE GRIEVANCE PROCEDURE OR AS HAVING
FAILED TO UTILIZE AN AVAILABLE APPEALS PROCEDURE.
PORTER ASSERTS AS THE REASON FOR HIS NOT UTILIZING THE APPEALS
PROCEDURE HIS LACK OF CONFIDENCE IN THAT PROCESS, THE FEELING THAT HE
WOULD NOT GET A "FAIR SHAKE." BUT SUCH AN EVALUATION OF THE AVAILABLE
PROCEDURE, EVEN IF WELL FOUNDED, WILL NOT RENDER THE EXPLICIT PROVISIONS
OF SECTION 19(D) INAPPLICABLE. I CONCLUDE, THEREFORE, THAT THE
ASSISTANT SECRETARY IS WITHOUT JURISDICTION IN THIS MATTER AND WILL
RECOMMEND THAT THE COMPLAINT BE DISMISSED. (UNITED STATES POSTAL
SERVICE, BERWYN POST OFFICE, ILLINOIS, A/SLMR NO. 272. SEE ALSO OFFICE
OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 334.
I AM NOT UNMINDFUL OF THE ARGUMENT THAT SINCE THE GRIEVANCE FILED IN
THIS MATTER DID NOT MENTION PORTER'S UNION ACTIVITY AS THE UNDERLYING
REASON FOR RESPONDENT'S FAILURE TO RECLASSIFY HIM TO GS-13, THE
PROVISIONS OF SECTION 19(D) OF THE ORDER WOULD NOT APPLY, SINCE THE
UNFAIR LABOR PRACTICE ISSUE COULD NOT "PROPERLY BE RAISED". I DO NOT
FIND THIS ARGUMENT CONVINCING, PARTICULARLY IN LIGHT OF THE CASES CITED
ABOVE AND THE HISTORY OF THE DEVELOPMENT OF SECTION 19(D) OF THE ORDER,
BUT IF SUCH WERE THE HOLDING, THEN, OF COURSE, THE ASSISTANT SECRETARY
WOULD HAVE JURISDICTION. BUT EVEN IN THAT EVENT I WOULD BE CONSTRAINED
TO MAKE THE SAME RECOMMENDATION, FOR, AS STATED ABOVE, THE ONE STATEMENT
ATTRIBUTED TO RESPONDENT WHICH COULD SUPPORT A FINDING OF ILLEGAL MOTIVE
WAS PROPERLY EXPLAINED. I CONCLUDE, THEREFORE, THAT THERE IS
INSUFFICIENT EVIDENCE TO WARRANT A FINDING THAT RESPONDENT FAILED OR
REFUSED TO PROMOTE PORTER BECAUSE OF HIS UNION ACTIVITY AND THAT THERE
IS INSUFFICIENT EVIDENCE TO WARRANT A FINDING THAT RESPONDENT VIOLATED
THE PROVISIONS OF THE ORDER AS ALLEGED IN THE COMPLAINT.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED IN ITS ENTIRETY.
DATED JULY 29, 1974
WASHINGTON, D.C.
/1/ AT THE TIME OF THE HEARING HEREIN BEAUFORE HAD BEEN PROMOTED TO
GS-13. COMPLAINANT, IN ITS BRIEF SUBMITTED BY PORTER, SEEKS REMEDY ONLY
AS TO PORTER.
/2/ HEARING OPENED ON DECEMBER 4, 1973, BUT WAS ADJOURNED SINE DIE
WHEN THE PARTIES ADVISED THAT THE CASE HAD BEEN SETTLED AND THAT THE
SETTLEMENT AGREEMENT WAS BEING FORWARDED TO THE ASSISTANT REGIONAL
DIRECTOR FOR APPROVAL. ON FEBRUARY 7, 1974, THE ACTING ASSISTANT
REGIONAL DIRECTOR ADVISED THAT THE SETTLEMENT AGREEMENT WAS DISAPPROVED,
AND ON APRIL 2, 1974, THE ASSISTANT REGIONAL DIRECTOR ISSUED "ORDER
SCHEDULING CONTINUED HEARING", WHICH HEARING RESUMED ON APRIL 24, 1974,
AND WAS CONCLUDED ON THE FOLLOWING DAY.
/3/ AS NOTED IN FOOTNOTE 2 SUPRA, BEAUFORE WAS PROMOTED TO GS-13
BEFORE THE HEARING IN THIS MATTER OPENED.
/4/ ALTHOUGH THE LETTER, IN EVIDENCE AS RESPONDENT'S EXHIBIT 2, DID
NOT ASCRIBE TO RESPONDENT ANY ANTI-UNION MOTIVE AS A BASIS FOR ITS
FAILURE TO PROMOTE, IT WAS WRITTEN ON COMPLAINANT'S STATIONERY AND
SIGNED BY PORTER IN HIS CAPACITY OF UNION PRESIDENT, AND COPIES WERE
SENT TO NATIONAL UNION OFFICERS.
/5/ COMPLAINANT'S EXHIBIT 17.
/6/ COMPLAINANT'S EXHIBIT 2.
/7/ ASST. SECRETARY'S EXHIBIT 1-A.
/8/ COMPLAINANT'S EXHIBIT 5. ALTHOUGH MAKING NO REFERENCE TO
PORTER'S MARCH 1 LETTER, THE MEMO LABELS THE SUBJECT AS "UNFAIR LABOR
PRACTICE COMPLAINT."
/9/ COMPLAINANT'S EXHIBIT 6. THE PHRASE "CURRENT REALIGNMENT
ACTIONS" APPARENTLY IS A REFERENCE TO A REDUCTION-IN-FORCE WHICH TOOK
PLACE IN THE CEI OFFICE IN MARCH 1973, RESULTING IN THE ABOLITION OF
JOBS AND REASSIGNMENT OF PERSONNEL. PORTER WAS ONE OF THOSE WHOSE JOBS
WERE ABOLISHED, AND IN AUGUST 1973 HE WAS REASSIGNED IN GRADE TO A
DIFFERENT JOB IN THE SAME ACCOUNTANT SERIES.
/10/ THE STATEMENT, FROM COMPLAINANT'S EXHIBIT 16, IS QUOTED
VERBATIM, SUPRA.
4 A/SLMR 446; P. 733; CASE NO. 42-2359(CA); OCTOBER 22, 1974.
UNITED STATES DEPARTMENT OF NAVY,
NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA
A/SLMR NO. 446
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (COMPLAINANT) AGAINST
UNITED STATES DEPARTMENT OF NAVY, NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA, (RESPONDENT) ALLEGING THAT THE RESPONDENT HAD
VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY TEMPORARILY ASSIGNING
AN EMPLOYEE WHO WAS EMPLOYED IN THE ELECTRONIC INSTALLATIONS SHOP TO A
LESS DESIRABLE JOB IN THE PACKAGING SHOP BECAUSE HE FILED A GRIEVANCE
AND SOUGHT UNION REPRESENTATION. THE COMPLAINT ALSO ALLEGED THAT THE
RESPONDENT'S CONDUCT CONSTITUTED A VIOLATION OF SECTION 19(A)(4) AND
THAT SUCH SECTION WAS FURTHER VIOLATED ON THE BASIS THAT THE EMPLOYEE'S
TEMPORARY ASSIGNMENT TO THE PACKAGING SHOP WAS EXTENDED BECAUSE HE FILED
A PRE-COMPLAINT CHARGE.
BASED ON THE EVIDENCE WHICH ESTABLISHED THAT THE RESPONDENT HAD A
POLICY OF TEMPORARILY ASSIGNING EMPLOYEES EMPLOYED IN THOSE OF ITS SHOPS
WHERE THEIR SERVICES WERE NOT NEEDED TO SHOPS WHERE THERE EXISTED A NEED
FOR SUCH EMPLOYEES AND THAT THE TEMPORARY ASSIGNMENT INVOLVED HEREIN TO
THE PACKAGING SHOP WAS IN ACCORD WITH SUCH POLICY, AND IN THE ABSENCE OF
ANY EVIDENCE THAT THE ASSIGNMENT HEREIN WAS BASED ON EITHER THE
EMPLOYEE'S HAVING FILED A GRIEVANCE AND SOUGHT UNION REPRESENTATION, OR
HIS HAVING FILED A PRE-COMPLAINT CHARGE, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE ALLEGATIONS IN THE COMPLAINT WERE WITHOUT MERIT.
BECAUSE IT WAS CLEAR THAT THE EMPLOYEE'S ASSIGNMENT WAS BASED SOLELY ON
ECONOMIC CONSIDERATIONS, THE ADMINISTRATIVE LAW JUDGE FOUND IT
UNNECESSARY TO DETERMINE WHETHER IN PROCESSING AN AGENCY GRIEVANCE THE
EMPLOYEE WAS ENGAGED IN ACTIVITY PROTECTED BY THE ORDER, OR WHETHER THE
PROTECTION AFFORDED BY SECTION 19(A)(4) EXTENDS EITHER TO GIVING
TESTIMONY DURING THE PROCESSING OF A GRIEVANCE OR TO THE FILING OF A
PRE-COMPLAINT CHARGE UNDER THE ORDER. UNDER THESE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS IN THIS CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS
WERE FILED, THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE. ACCORDINGLY, HE
ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
UNITED STATES DEPARTMENT OF NAVY,
NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
ON JULY 25, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 42-2359(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 22, 1974
IN THE MATTER OF
UNITED STATES DEPARTMENT OF NAVY
NAVAL AIR REWORK FACILITY
JACKSONVILLE, FLORIDA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
STUART M. FOSS
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
1735 NORTH LYNN STREET
ARLINGTON (ROSSLYN), VA 22209
E. C. NEWTON
LABOR RELATIONS ADVISOR
DEPARTMENT OF THE NAVY
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
REGIONAL OFFICE, BOX 88
NAVAL AIR STATION
JACKSONVILLE, FA 32212
DAVID J. MARKMAN, ESQ.
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
1341 G STREET, N.W., SUITE 512
WASHINGTON, DC 20005
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINANT FILED ON AUGUST 20, 1973, AND AMENDED ON
SEPTEMBER 24, 1973, UNDER EXECUTIVE ORDER 11491, AS A MENDED (HEREIN
CALLED THE ORDER) BY NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(HEREAFTER CALLED THE COMPLAINANT OR THE UNION) AGAINST UNITED STATES
DEPARTMENT OF NAVY, NAVAL AIR REWORK FACILITY, JACKSONVILLE, FLORIDA,
(HEREINAFTER CALLED THE ACTIVITY OR RESPONDENT) A NOTICE OF HEARING ON
COMPLAINT WAS ISSUED BY THE ACTING ASSISTANT REGIONAL DIRECTOR FOR
LABOR-MANAGEMENT SERVICES FOR THE ATLANTA REGION ON NOVEMBER 21, 1973.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON FEBRUARY
5 AND 6, 1973, IN JACKSONVILLE, FLORIDA. ALL PARTIES WERE REPRESENTED
AND AFFORDED A FULL OPPORTUNITY TO BE HEARD AND TO PRESENT WITNESSES AND
TO INTRODUCE OTHER RELEVANT EVIDENCE ON THE ISSUES INVOLVED. UPON THE
CONCLUSION OF THE TAKING OF TESTIMONY, BOTH PARTIES WERE GIVEN AN
OPPORTUNITY TO PRESENT ORAL ARGUMENTS AND BOTH PARTIES FILED BRIEFS ON
MARCH 15, 1974.
UPON THE ENTIRE RECORD HEREIN, INCLUDING THE RELEVANT EVIDENCE
ADDUCED AT THE HEARING AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
A. BACKGROUND:
THE ACTIVITY IS LOCATED IN THE NAVAL AIR STATION, JACKSONVILLE,
FLORIDA, /1/ WHERE IT IS ENGAGED IN PERFORMING REWORK /2/ ON FLEET
AIRCRAFT. AT ALL TIMES MATERIAL HEREIN /3/ AND FOR THE PURPOSES OF THIS
PROCEEDING THE ACTIVITY WAS ENGAGED IN PERFORMING REWORK ON TWO SPECIFIC
TYPES OF AIRCRAFT, THE A-4 AND THE A-7.
THE ACTIVITY IS DIVIDED INTO A NUMBER OF SEVERAL DEPARTMENTS. THE
DEPARTMENT RELEVANT HEREIN IS THE PRODUCTION DEPARTMENT WHICH IS IN TURN
DIVIDED INTO A NUMBER OF DIVISIONS INCLUDING THE WEAPONS DIVISION (NO.
95000). THE WEAPONS DIVISION IS THEN DIVIDED INTO A NUMBER OF BRANCHES
INCLUDING THE AIRCRAFT REWORK BRANCH (A-7)(NO. 95600). THE AIRCRAFT
BRANCH (NO. 95600) IS DIVIDED INTO VARIOUS SECTIONS, ONE OF WHICH IS
THE AVIONICS SECTION (NO. 95680) WHICH CONTAINS A NUMBER OF SHOPS
INCLUDING THE ELECTRONICS INSTALLATION SHOP (NO. 95685). /4/ AT THE
TIMES MATERIAL HEREIN SHOP NO. 95685 WORKED ON THE "B" SHIFT, 3:30 P.M.
TO 12:00 MIDNIGHT; /5/ ITS CORRESPONDING SHOP ON THE "A" SHIFT, 7:00
A.M. TO 3:30 P.M., WAS SHOP NO. 95675. /6/ THESE SHOPS ROTATE BETWEEN
"A" AND "B" SHIFTS EVERY 6 WEEKS. THE WEAPONS DIVISION IS APPARENTLY
RESPONSIBLE FOR PERFORMING THE BASIC REWORK MISSION OF THE ACTIVITY. AT
ALL TIMES MATERIAL HEREIN THE WEAPONS DIVISION WAS HEADED BY PRODUCTION
SUPERINTENDENT DONALD T. ROHWELLER. MR. ROHWELLER WAS RESPONSIBLE FOR
SUPERVISING THE OPERATION OF THE WEAPONS DIVISION AND ITS 600 EMPLOYEES
DIVIDED INTO FOUR BRANCHES, EIGHT SECTIONS AND APPROXIMATELY 50 SHOPS.
THE AIRCRAFT BEING REWORKED WAS WORKED UPON BY EACH OF THE AIRCRAFT
TRADES IN THEIR TURN. USUALLY THE AIRFRAME AND METAL WORK WAS DONE
FIRST AND THE ELECTRONICS WAS USUALLY AMONG THE WORK DONE LAST. SOME
ELECTRICAL WORK /7/ WOULD BE PERFORMED AT VARIOUS STAGES OF WORK.
THE AMOUNT OF TIME SPENT BY EACH TRADE ON A PARTICULAR AIRCRAFT
DEPENDS ON THE TYPE OF REWORK PROGRAM INVOLVED. THERE WERE THREE BASIC
REWORK PROGRAMS BEING CARRIED ON DURING THE PERIOD MATERIAL HEREIN. THE
"PROGRESSIVE AIRCRAFT REWORK PROGRAM" (HEREIN CALLED PAR) INVOLVES THE
MOST EXTENSIVE REWORK AND THE GREATEST AMOUNT OF EMPLOYEE TIME BECAUSE
IT CONSISTS OF SCHEDULED PERIODIC MAINTENANCE ON THE ENTIRE AIRCRAFT IN
ORDER TO KEEP IT OPERATIONAL FOR A SPECIFIC PERIOD OF TIME. THE
"AIRCRAFT CONDITION EVALUATION PROGRAM" (HEREIN CALLED ACE) INVOLVES THE
PERFORMANCE OF NECESSARY MAINTENANCE WORK ON THE AIRCRAFT AS REVEALED BY
AN INSPECTION OF THE PLANE WHEN IT COMES INTO THE FACILITY. "CHANGE
252" (HEREIN CALLED PRIDE) ACTUALLY CONSISTS OF CERTAIN ELECTRONIC
MODIFICATION OF AN AIRCRAFT RATHER THAN A REWORK PROGRAM.
THE UNION WAS THE RECOGNIZED COLLECTIVE BARGAINING REPRESENTATIVE FOR
A UNIT OF CERTAIN OF THE ACTIVITY'S CIVILIAN EMPLOYEES. MR. JOHN H.
RUNTON, THE ALLEGED DISCRIMINATEE HEREIN, WAS EMPLOYED IN SHOP NO. 95685
AS AN ELECTRONICS WORKER. BECAUSE HE HAD A CRYPTOGRAPHY CLEARANCE, MR.
RUNTON WAS NOT INCLUDED IN THE COLLECTIVE BARGAINING UNIT, UNTIL ON OR
ABOUT MAY 31, 1973, AT WHICH TIME HE BECAME PART OF THE COLLECTIVE
BARGAINING UNIT REPRESENTED BY THE UNION.
B. ACTIVITY'S WORKLOAD AND THE LOAN SYSTEM:
DURING APRIL, MAY, AND JUNE 1973 AIRCRAFT REWORK BRANCH, NO. 95600
WAS IN THE PROCESS OF CHANGING FROM THE PAR SYSTEM TO THE ACE SYSTEM AND
AT THAT TIME THE PRIDE SYSTEM WAS ALSO BEING INTRODUCED. /8/ BY MAY AND
JUNE THE WEIGHT OF THE PROBATIVE EVIDENCE IN THE RECORD ESTABLISHES THAT
THERE WAS A DECREASING WORKLOAD IN SHOP NO. 95685, AS WELL AS IN THE
OTHER ELECTRONIC AND ELECTRICAL SHOPS. THE RECORD ESTABLISHES THAT THE
NUMBER OF AIRCRAFT UNDERGOING THE REWORK SYSTEMS BEING UTILIZED DURING
MAY AND JUNE 1973 REQUIRED FEWER EMPLOYEE WORK HOURS IN THE ELECTRONICS
TRADES. THE COMPLAINANT DID NOT PRODUCE EVIDENCE TO ATTACK THE ACCURACY
OF PROBATIVE VALUE OF THE VARIOUS PRODUCTION AND FLOW CHARTS AND RECORDS
SUBMITTED AT THE HEARING UPON WHICH THE FOREGOING FINDINGS WERE, TO A
LARGE PART, BASED. RATHER IT SUBMITTED A FEW WITNESSES WHO EITHER
GENERALLY TESTIFIED THAT THERE SEEMED TO BE WORK AVAILABLE IN SHOP NO.
95685 OR THAT THEY RECOLLECTED RATHER VAGUELY THE NUMBER OF PLANES
UNDERGOING REWORK DURING MAY AND JUNE. HOWEVER, EVEN COMPLAINANT'S
WITNESSES ADMITTED THAT ONLY ONE OR TWO AIRCRAFT WERE RECEIVING PRIDE
CHANGES DURING MAY AND JUNE. /9/ MR. RUNTON HIMSELF ADMITTED THEIR WAS
A DECLINING WORKLOAD. THE ACTIVITY'S WITNESSES TESTIFIED AS TO THE
SUBSTANTIAL DECREASE IN THE WORKLOAD DURING MAY AND JUNE AND THEY WERE
SUPPORTED AND CORROBORATED BY THE RECORDS AND PRODUCTION CHARTS WHICH
WERE PLACED IN EVIDENCE.
THE RECORD ESTABLISHES THAT THE ACTIVITY HAD A NORMAL AND CUSTOMARY
PRACTICE THAT WHEN A LACK OF WORK IS ANTICIPATED IN A PARTICULAR SHOP,
ITS SUPERVISOR WOULD DECLARE THE APPROPRIATE NUMBER OF EMPLOYEES AS
"EXCESS," THEREBY MAKING THEM AVAILABLE FOR "LOAN" TO OTHER SHOPS THAT
ARE IN NEED OF EMPLOYEES, UNTIL SUCH TIME AS THE WORKLOAD IN THE PARENT
SHOP NECESSITATES THERE RECALL. A "LOAN" IN THIS SITUATION IS A
TEMPORARY TRANSFER OF AN EMPLOYEE FROM ONE DIVISION TO ANOTHER. /10/
SHIFTING OF AN EMPLOYEE FROM ONE SHOP TO ANOTHER WITHIN THE SAME BRANCH
IS NOT CONSIDERED A LOAN AND IS HANDLED MORE INFORMALLY.
ARTICLE XX OF THE COLLECTIVE BARGAINING AGREEMENT PROVIDES IN PART,
THAT "ALL EMPLOYEES WILL BE GIVEN FAIR AND EQUITABLE TREATMENT WITH
REGARD TO LOANS OUTSIDE THERE DIVISION. . ." THIS "LOAN" SYSTEM WAS FOR
THE PURPOSE OF PROVIDING THE ACTIVITY WITH FLEXIBILITY SO THAT IF A
PARTICULAR SHOP HAD EXCESS EMPLOYEES AT A GIVEN TIME, THE SHOP WAS NOT
REQUIRED EITHER TO PROVIDE "MAKE WORK" FOR THE EMPLOYEES OR TO RESORT TO
A REDUCTION IN FORCE, BUT RATHER THE EMPLOYEES COULD BE LOANED ELSEWHERE
SO THAT THEY COULD PERFORM PRODUCTIVE AND MEANINGFUL WORK, MAKING THE
ACTIVITY'S OPERATION MORE EFFICIENT.
UNDER THE LOAN SYSTEM, WHEN THE SUPERVISOR OF A PARTICULAR SHOP
DETERMINES OR ANTICIPATES A DECREASING LOAD SO THAT AT SOME TIME IN THE
FAIRLY NEAR FUTURE HE WILL NOT HAVE SUFFICIENT WORK TO KEEP ALL THE
EMPLOYEES IN THE SHOP PRODUCTIVELY OCCUPIED, HE WOULD DECLARE CERTAIN
EMPLOYEES EXCESS AND PROVIDE A WRITTEN LIST OF NAMES OF THESE EXCESS
EMPLOYEES /11/ TO THE SECTION SUPERVISOR. THE SECTION SUPERVISOR WOULD
ATTEMPT TO PLACE THEM IN OTHER SHOPS IN THE SECTION OR BRANCH. IF HE IS
UNSUCCESSFUL IN PLACING THESE EXCESS EMPLOYEES, HE TRANSMITS THEIR NAMES
TO THE BRANCH SUPERVISOR, WHO ATTEMPTS TO PLACE THEM WITHIN THE BRANCH
OR IN OTHER BRANCHES IN THE DIVISION. IF THE BRANCH SUPERVISOR IS
UNSUCCESSFUL, HE WILL PASS THEIR NAMES TO THE WEAPONS DIVISION
SUPERINTENDENT WHO, IF HE IS UNABLE TO PLACE THEM WITHIN THE WEAPONS
DIVISION, NOTIFIES THE PRODUCTION DEPARTMENTAL OFFICE. IF THE
DEPARTMENT SUPERINTENDENT IS UNABLE TO FIND PRODUCTIVE WORK FOR THESE
EMPLOYEES IN ANY OF THE OTHER DIVISIONS IN HIS DEPARTMENT, THEY ARE MADE
AVAILABLE FOR LOANS TO OTHER DIVISIONS. /12/
DURING APRIL AND MAY, ARTIS H. HALL WAS THE SUBSTITUTE FOREMAN FOR
SHOP NO. 95685. /13/ MR. HALL PROJECTED, BASED ON THE WORK AT HAND, THE
WORK SOON TO BE COMPLETED, AND THE WORK SCHEDULED TO COME IN, THAT HE
WOULD NOT HAVE, IN THE NEAR FUTURE, SUFFICIENT WORK TO KEEP ALL THE
EMPLOYEES IN SHOP NO. 96585 PRODUCTIVELY EMPLOYED. THEREFORE, ON OR
ABOUT MAY 29, MR. HALL DETERMINED AND DECLARED MR. JOHN H. HUNTON AND
THREE OTHER ELECTRONICS WORKERS, VASCO COLLINS, RONALD GOTTSCHALK AND
GLEN HELFRICK, /14/ TO BE EXCESS. /15/ HE DID NOT DECLARE ANY
ELECTRONICS MECHANICS /16/ EXCESS. THE FOUR ELECTRONICS WORKERS
DECLARED EXCESS COMPRISED ALL THE ELECTRONIC WORKERS IN SHOP NO. 95685.
/17/ ALTHOUGH MR. RUNTON HAD SOME EXTRA EXPERIENCE IN THE PRIDE CHANGES,
THIS WOULD HARDLY HAVE JUSTIFIED NOT DECLARING HIM EXCESS SINCE OTHER
EMPLOYEES HAD WORKED ON THE PRIDE CHANGES THAT HAD ALREADY BEEN
COMPLETED; THE AMOUNT OF PRIDE WORK WAS AT A MINIMUM; AND THE
ELECTRONICS MECHANICS LEFT HAD THE SKILL REQUIRED TO PERFORM THIS WORK.
MR. HALL SENT A MEMORANDUM DECLARING THE FOUR ELECTRONICS WORKERS,
INCLUDING MR. RUNTON, EXCESS TO MR. JACK FREEMAN, THE SECTION CHIEF AND
AT THAT TIME, HALL'S IMMEDIATE SUPERVISOR. THIS MEMORANDUM WAS
FORWARDED BY MR. FREEMAN TO MR. WILLIAM N. GENTRY WHO PREPARED A
MEMORANDUM DATED MAY 29 DIRECTED TO MR. DONALD T. ROHWELLER PRODUCTION
SUPERINTENDENT OF THE WEAPONS DIVISION, ADVISING HIM THAT THE FOUR
ELECTRICAL WORKERS IN SHOP NO. 95685, INCLUDING MR. RUNTON, WERE EXCESS.
/18/ MR. ROHWELLER PREPARED A MEMORANDUM DATED MAY 29 DIRECTED TO
"PRODUCTION DEPARTMENT MANPOWER," THAT MR. RUNTON AND THE OTHER THREE
ELECTRONICS WORKERS WERE EXCESS AND AVAILABLE FOR LOAN FOR ABOUT THREE
WEEKS. /19/ THIS WAS DONE SO THE PRODUCTION DEPARTMENT COULD FIND A
PLACE TO PRODUCTIVELY UTILIZE THESE FOUR EMPLOYEES. ON JUNE 4
ELECTRONICS WORKERS GOTTSCHALK AND HELFRICK, WHO WERE DECLARED EXCESS BY
MR. HALL IN THE SAME MEMORANDUM WITH MR. RUNTON, WERE LOANED TO THE
DISASSEMBLY SHOP (SHOP NO. 96221) OF THE POWER PLANT DIVISION (NO.
96000) AND THEY REMAINED ON TEMPORARY DETAIL THERE UNTIL NOVEMBER 12.
ON JUNE 6 MR. RUNTON AND MR. COLLINS, THE REMAINING TWO DECLARED
EXCESS BY MR. HALL, WERE LOANED TO THE PACKAGING SHOP (NO. 93154) OF THE
PROCESS AND MANUFACTURING DIVISION (NO. 93000) ALONG WITH FIVE OTHER
EMPLOYEES OF THE ACTIVITY. /20/ MR. RUNTON, AND THE OTHER EMPLOYEES,
WERE ASSIGNED TO PACKING AND UNPACKING VARIOUS EQUIPMENT AND MATERIAL.
IT IS UNDISPUTED AND THE RECORD ESTABLISHES, THAT WHILE MR. RUNTON WAS
WORKING IN THE PACKAGING SHOP THERE WAS PLENTY OF WORK THERE AND
ALTHOUGH, THE EMPLOYEES REGULARLY ASSIGNED TO THE PACKAGING SHOP WERE IN
A LOWER PAY GRADE THAN MR. RUNTON, HIS RATING WAS NOT CHANGED AND HE
LOST NO PAY. MR. RUNTON CONTENDS THAT THE WORK AT THE PACKAGING SHOP
WAS LESS DESIRABLE THAN THE WORK HE PERFORMED IN SHOP NO. 95685, BECAUSE
IT APPARENTLY INVOLVED MORE MANUAL LABOR AND LESS SKILL THAN THE
ELECTRONICS WORKER'S POSITION. MR. RUNTON'S CONTENTION IS SUPPORTED BY
THE RECORD. MR. RUNTON WAS LOANED TO THE PACKAGING SHOP FOR SIX WEEKS
AND RETURNED TO SHOP NO. 95685 ON JULY 18. /21/ DURING THE PERIOD OF
TIME THAT MR. RUNTON WAS TEMPORARY ASSIGNED TO THE PACKAGING SHOP NO
EMPLOYEES WERE LOANED TO OR TEMPORARILY TRANSFERRED TO SHOP NO. 95685.
AN AIRCRAFT ELECTRIC IAN, MR. JAMES CLARK, WHO HAD WORKED PREVIOUSLY IN
SHOP NO. 95685, /22/ WAS BORROWED DURING THIS PERIOD TO CORRECT
PREVIOUSLY DONE WORK OF THE TYPE DONE BY ELECTRICIANS; (E.G. REWIRING,
ETC.). SUCH ASSIGNMENTS WERE RELATIVELY FEW AND DID NOT LAST MORE THAN
TWO SHIFTS.
ALTHOUGH AT THAT TIME SOME OF THE OTHER SHOPS IN THE WEAPONS
DIVISION, WHICH MIGHT DO SOME WORK IN THE ELECTRICAL FIELD AND IN TRADES
RELATED TO MR. RUNTON'S, APPEARED FROM SOME OF THE RECORDS AND WORKLOAD
PROJECTIONS TO NEED ADDITIONAL EMPLOYEES IN THE NEAR FUTURE, MOST OF
THESE SHOPS IN QUESTION RARELY UTILIZED ELECTRONICS WORKERS AND IN FACT
THE PROJECTED INCREASE IN THEIR WORKLOAD NEVER MATERIALIZED.
ON JUNE 4, MR. CARSE RETURNED TO SHOP NO. 95685 AS THE FOREMAN AND
BECAME AWARE THAT FOUR EMPLOYEES HAD BEEN DECLARED EXCESS. ALTHOUGH MR.
CARSE AGREED THAT THE WORKLOAD IN THE SHOP HAD JUSTIFIED MR. HALL'S
DETERMINATION THAT THE FOUR EMPLOYEES WERE EXCESS, HE FELT THAT, WITH
THE PROJECTED WORKLOAD, HE COULD KEEP THESE EMPLOYEES PRODUCTIVELY
EMPLOYED. HE THEREFORE SENT A MEMORANDUM DATED JUNE 4 ASKING BRANCH
SUPERVISOR GENTRY TO, IN EFFECT, WITHDRAW MR. COLLINS' AND MR. RUNTON'S
/23/ NAMES FROM THE LIST OF EMPLOYEES DETERMINED TO BE EXCESS. MR.
GENTRY ADVISED MR. CARSE, BY MEMORANDUM THAT HE WOULD RECALL THE
EMPLOYEES AS NEEDED WHEN THE WORK IN THE SHOP JUSTIFIED IT; HE FURTHER
ADVISED HIM THAT THE SHOP DID NOT NEED THE EMPLOYEES AT THAT TIME. MR.
CARSE TESTIFIED AND THE RECORD ESTABLISHES THAT THE INCREASED WORKLOAD
THAT HE ANTICIPATED NEVER MATERIALIZED, /24/ AND THE STAFF HE HAD COULD
ADEQUATELY PERFORM THE WORK THAT NEEDED TO BE DONE.
C. MR. RUNTON'S GRIEVANCE:
ON OR ABOUT APRIL 20, 1974, MR. RUNTON APPROACHED MR. DESMOND V.
HATCHER, AN INSTRUMENT WORKER /25/ AND THE UNION'S CHIEF STEWARD, AND
ASKED MR. HATCHER IF HE WOULD REPRESENT HIM IN AN ACTION ATTEMPTING TO
GET HIS POSITION UPGRADED. MR. HATCHER CONSENTED. ON MAY 23 MR. RUNTON
AND MR. HATCHER PRESENTED THE GRIEVANCE TO MR. HALL. THE GRIEVANCE WAS
TO BE PROCESSED UNDER THE RESPONDENT'S ADMINISTRATIVE GRIEVANCE
PROCEDURE. ON MAY 31 THE PARTIES MET IN AN ATTEMPT TO RESOLVE THE
GRIEVANCE. ON JUNE 4 MR. RUNTON AND MR. HATCHER MET WITH MR.
ROHWELLER, THE WEAPONS DIVISION PRODUCTION SUPERINTENDENT. AFTER A
BRIEF DISCUSSION IT WAS DETERMINED TO ADJOURN THE MEETING SO THAT BOTH
PARTIES COULD PRESENT WITNESSES. ON JUNE 11 A SECOND MEETING WAS HELD
AT WHICH TIME BOTH SIDES PRODUCED SOME WITNESSES. BY MEMORANDUM DATED
JUNE 14 MR. RUNTON'S GRIEVANCE WAS DENIED AT THIS STILL INFORMAL STAGE.
BY MEMORANDUM DATED JUNE 18 SIGNED BY MR. RUNTON AND MR. HATCHER /26/
A FORMAL GRIEVANCE UNDER THE ACTIVITY'S GRIEVANCE PROCEDURE WAS FILED.
THERE IS APPARENTLY SOME QUESTION RAISED AS TO WHETHER MR. HATCHER WAS
REPRESENTING MR. RUNTON IN MR. HATCHER'S CAPACITY AS UNION CHIEF STEWARD
OR AS AN INDIVIDUAL. FROM THE FACTS HERE PRESENT, NOTING PARTICULARLY
THAT MR. HATCHER WAS THE UNION'S CHIEF STEWARD WHEN MR. RUNTON
APPROACHED HIM, NO EVIDENCE WAS SUBMITTED THAT MR. RUNTON SPECIFICALLY
STATED HE WANTED MR. HATCHER AS AN INDIVIDUAL, AND HE DESIGNATED HIM AS
THE UNION CHIEF STEWARD IN THE JUNE 14 MEMORANDUM, IT MUST BE FOUND THAT
MR. HATCHER WAS APPEARING IN HIS UNION CAPACITY AND THAT THE ACTIVITY
WOULD SO CONCLUDE. /27/ THE ACTIVITY ADVISED MR. RUNTON THAT SINCE HE
HAD BECOME A PART OF THE COLLECTIVE BARGAINING UNIT ON JUNE 1 THE
GRIEVANCE SHOULD BE PROCESSED UNDER THE NEGOTIATED PROCEDURE. /28/ THE
RECORD DOES NOT ESTABLISH AND THE COMPLAINANT DOES NOT ALLEGE THAT THE
PROCESSING OF THIS GRIEVANCE WAS IN ANY WAY AFFECTED BY THE FACT THAT
MR. RUNTON WAS DECLARED EXCESS AND LOANED OUT OF THE DIVISION.
THE UNION CONTENDS THAT THE ACTIVITY INTERFERED WITH MR. RUNTON'S
PROTECTED RIGHTS IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER BY
DECLARING HIM EXCESS AND TRANSFERRING HIM TO THE PACKAGING SHOP BECAUSE
MR. RUNTON HAD FILED A GRIEVANCE AND SOUGHT UNION REPRESENTATION, WHICH
ARE CONTENDED TO BE RIGHTS PROTECTED BY THE ORDER.
THE UNION CONTENDS FURTHER THAT THE FOREGOING CONDUCT CONSTITUTED
UNLAWFUL DISCRIMINATION AGAINST MR. RUNTON BECAUSE IT HAD THE EFFECT OF
DISCOURAGING UNION MEMBERSHIP AND THEREFORE VIOLATED SECTION 19(A)(2) OF
THE ORDER.
FINALLY THE UNION CONTENDS THAT THE ALLEGED DISCRIMINATION AGAINST
MR. RUNTON BECAUSE HE FILED A GRIEVANCE CONSTITUTED A VIOLATION OF
SECTION 19(A)(4) OF THE ACT AND ALSO THAT THIS SECTION WAS FURTHER
VIOLATED BECAUSE HIS TEMPORARY TRANSFER WAS EXTENDED BECAUSE HE FILED
THE SUBJECT UNFAIR LABOR PRACTICE CHARGE.
THE ACTIVITY DENIES THAT MR. RUNTON WAS DECLARED EXCESS OR
TEMPORARILY TRANSFERRED BECAUSE HE HAD FILED A GRIEVANCE AND SOUGHT
UNION ASSISTANCE; RATHER, IT CONTENDS HE WAS DECLARED EXCESS AND
TEMPORARILY TRANSFERRED BECAUSE OF A DECLINING WORKLOAD AND AS PART OF
THE ACTIVITY'S NORMAL PROCEDURES. ALSO THE ACTIVITY CONTENDS THAT THE
ORDER DOES NOT PROTECT THE RIGHT OF AN EMPLOYEE TO PROCESS A GRIEVANCE
UNDER THE AGENCY'S OWN ADMINISTRATION PROCEDURE. FINALLY THE ACTIVITY
CONTENDS THAT SECTION 19(A)(4) OF THE ORDER APPLIES ONLY TO
DISCRIMINATION BECAUSE OF TESTIMONY GIVEN IN POST CHARGE PROCEEDINGS AND
DOES NOT EXTEND TO TESTIMONY GIVEN IN A GRIEVANCE PROCEDURE.
THE RECORD FAILS TO ESTABLISH THAT MR. RUNTON WAS DECLARED EXCESS,
AND TEMPORARILY TRANSFERRED TO THE PACKAGING SHOP FOR A PERIOD OF SIX
WEEKS BECAUSE HE FILED A GRIEVANCE AND REQUESTED THE UNION TO REPRESENT
HIM. RATHER THE RECORD HAS ESTABLISHED THAT MR. RUNTON WAS DECLARED
EXCESS IN SHOP NO. 95685 AND TEMPORARILY TRANSFERRED TO THE PACKAGING
SHOP FOR SIX WEEKS IN ORDER TO USE HIM PRODUCTIVELY BECAUSE THE WORKLOAD
IN SHOP NO. 95685 WAS DECREASING AND THE INCREASED WORKLOAD IN THE
PACKAGING SHOP WAS SUCH AS TO REQUIRE THAT ADDITIONAL EMPLOYEES BE
ASSIGNED TO THAT SHOP. IN THIS REGARD IT IS PARTICULARLY NOTED THAT
THERE WAS A DECLINING WORKLOAD IN THE SHOP NO. 95685; ALL ELECTRONICS
WORKERS REGULARLY ASSIGNED TO THAT SHOP WERE DECLARED EXCESS AND
TEMPORARILY LOANED TO OTHER SHOPS; /29/ AND THE PACKAGING SHOP WAS IN
NEED OF ADDITIONAL EMPLOYEES AND A NUMBER, INCLUDING MR. RUNTON WERE
TEMPORARILY ASSIGNED TO IT. IT IS FURTHER NOTED THAT TWO OF THE
ELECTRICAL WORKERS FROM SHOP NO. 95685 WERE TEMPORARILY TRANSFERRED FOR
PERIODS OF TIME LONGER THAN WAS MR. RUNTON; DURING THIS PERIOD NO
EMPLOYEES WERE TEMPORARILY TRANSFERRED INTO SHOP NO. 95685; AND NO
INCREASE IN THE WORKLOAD OF SHOP NO. 95685 MATERIALIZED TO JUSTIFY MR.
RUNTON'S EARLY RETURN TO HIS PARENT SHOP FROM THE PACKAGING SHOP.
FINALLY THE WEIGHT OF THE EVIDENCE ADEQUATELY ESTABLISHES THE PROCEDURES
FOLLOWED WITH RESPECT TO MR. RUNTON WERE THE NORMAL AND STANDARD LOAN
PROCEDURES UTILIZED BY THE ACTIVITY WHEN FLUCTUATING WORKLOADS REQUIRED
IT.
A. SECTION 19(A)(2)
SECTION 19(A)(2) OF THE ORDER STATES:
"SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITION OF EMPLOYMENT;"
IN ORDER TO VIOLATE SECTION 19(A)(2) OF THE ORDER THE COMPLAINANT
MUST ESTABLISH THAT THE EMPLOYEE WAS TREATED IMPROPERLY BECAUSE THE
EMPLOYER WAS MOTIVATED BY A DESIRE TO ENCOURAGE OR DISCOURAGE UNION
ACTIVITY. /30/ IN ORDER, THEREFORE TO ESTABLISH A VIOLATION OF SECTION
19(A)(2) OF THE ORDER IT MUST BE ESTABLISHED THAT THE ALLEGED
DISCRIMINATEE WAS ENGAGING IN CONDUCT WHICH IS PROTECTED BY THE ORDER,
THAT THE ACTIVITY KNEW THAT THE EMPLOYEE WAS ENGAGED IN THIS PROTECTED
CONDUCT AND DISCRIMINATED AGAINST HIM WITH RESPECT TO "HIRING TENURE,
PROMOTION AND OTHER CONDITIONS OF EMPLOYMENT . . . " BECAUSE HE ENGAGED
IN THE PROTECTED ACTIVITY. THE ACTIVITY MUST BE FOUND TO HAVE ENGAGED
IN THE ABOVE DESCRIBED DISCRIMINATION FOR THE PURPOSE OF ENCOURAGING OR
DISCOURAGING UNION MEMBERSHIP.
IN THE INSTANT CASE, IT NEED NOT BE DETERMINED WHETHER MR. RUNTON, IN
PROCESSING HIS GRIEVANCE WAS ENGAGED IN PROTECTED ACTIVITY BECAUSE IT IS
CLEAR THAT MR. RUNTON WAS NOT DECLARED EXCESS AND TEMPORARILY
TRANSFERRED TO THE PACKAGING SHOP FROM JUNE 6 TO JULY 18 BECAUSE HE
ENGAGED IN THIS ALLEGED PROTECTED ACTIVITY. RATHER THE RECORD HERE
ESTABLISHES THAT HE WAS DECLARED EXCESS AND TEMPORARILY TRANSFERRED
UNTIL JULY 18 SOLELY BECAUSE OF A FLUCTUATING WORKLOAD AND OTHER VALID
BUSINESS AND MANAGEMENT CONSIDERATIONS AND THAT THE LOAN PROCEDURES
FOLLOWED WERE PERFECTLY CONSISTENT WITH THE ACTIVUTY'S NORMAL AND
CUSTOMARY PRACTICES THAT WERE ALSO FOLLOWED WITH RESPECT TO MANY OF MR.
RUNTON'S COWORKERS.
IN THE SUBJECT CASE THE SOLE CONSIDERATION AND MOTIVATION FOR THE
ALLEGED DISCRIMINATION, THE DECLARING MR. RUNTON EXCESS AND HIS
TEMPORARY TRANSFER UNTIL JULY 18, WAS NOT BASED ON UNION OR OTHER
PROTECTED ACTIVITIES, BUT RATHER WAS BASED ON THE VALID BUSINESS
CONSIDERATION OF ATTEMPTING TO USE EMPLOYEES PRODUCTIVELY. IT IS
CONCLUDED THAT THE ACTIVITY DID NOT ENGAGE IN CONDUCT VIOLATIVE OF
SECTION 19(A)(2) OF THE ORDER.
B. SECTION 19(A)(1)
SECTION 19(A)(1) OF THE ORDER STATES:
"SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT
(1) INTERFERE WITH RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF
THE RIGHTS ASSURED BY THIS ORDER;"
SECTION 19(A)(1) DOES NOT REQUIRE THE ALLEGED UNLAWFUL CONDUCT
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION AS DOES
SECTION 19(A)(2), BUT MERELY REQUIRES THAT IT INTERFERE WITH RIGHTS
ASSURED BY THE ORDER. THEREFORE ALTHOUGH, PERHAPS, AN ACTIVITY NEED NOT
INTEND TO INTERFERE WITH PROTECTED RIGHTS, IF IT HOWEVER ENGAGES IN
CONDUCT WHICH WOULD FORESEEABLY HAVE THAT EFFECT, AND THERE IS NO
OVERRIDING ECONOMIC NECESSITY FOR SUCH CONDUCT, IT MIGHT CONSTITUTE A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
AS HAS BEEN DISCUSSED ABOVE THE WORKLOAD AND OTHER VALID BUSINESS
REASONS WHERE THE CONSIDERATIONS WHICH LEAD TO MR. RUNTON BEING DECLARED
EXCESS AND TEMPORARILY TRANSFERRED TO THE PACKAGING SHOP, USING THE
AGENCY'S PROCEDURES WHICH WERE NORMALLY AND AUTOMATICALLY UTILIZED IN
SUCH SITUATIONS. OTHER EMPLOYEES WERE ALSO DECLARED EXCESS DURING THE
TIME IN QUESTION AND WERE LOANED TO OTHER SHOPS USING THESE VERY SAME
PROCEDURES. IT CANNOT BE CONCLUDED THAT TREATING MR. RUNTON IN THE SAME
MANNER THAT THE OTHER EMPLOYEES, SIMILARILY SITUATED, WERE BEING
TREATED, ACCORDING TO EXISTING PROCEDURES, AND BECAUSE OF A FLUCTUATING
WORKLOAD, WOULD FORESEEABLY TEND TO INTERFERE WITH THE EMPLOYEES
EXERCISING THEIR RIGHTS ASSURED BY THE ORDER. IN FACT QUITE THE
CONTRARY MIGHT HAVE BEEN TRUE; HAD THE ACTIVITY TREATED MR. RUNTON
DIFFERENTLY THAN THE OTHER EMPLOYEES AND NOT IN ACCORDANCE WITH THE
NORMAL PROCEDURES, BECAUSE HE HAD FILED A GRIEVANCE AND SOUGHT UNION
ASSISTANCE, THAT MIGHT HAVE CONSTITUTED INTERFERENCE WITH THE EMPLOYEES
EXERCISING RIGHTS PROTECTED BY THE ORDER, IN VIOLATION OF SECTION
19(A)(1) OF THE ORDER.
IN LIGHT OF THE FOREGOING, THEREFORE, IT IS CONCLUDED THAT THE
ACTIVITY DID NOT ENGAGE IN CONDUCT WHICH CONSTITUTED A VIOLATION OF
SECTION 19(A)(1) OF THE ORDER.
C. SECTION 19(A)(4)
SECTION 19(A)(4) STATES:
"SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL NOT--
(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
HE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER;" AS
DISCUSSED ABOVE COMPLAINANT ALLEGES THAT MR. RUNTON WAS TEMPORARILY
TRANSFERRED BECAUSE HE FILED A GRIEVANCE AND THAT HIS TEMPORARY TRANSFER
TO THE PACKAGING SHOP WAS EXTENDED TO JULY 18 BECAUSE OF THE UNFAIR
LABOR PRACTICE CHARGE FILED IN THIS CASE ON JUNE 19 OR 20, 1973. /31/
THE COMPLAINANT CONTENDS THAT THE PROTECTION WHICH SECTION 19(A)(4)
AFFORDS TO FILING A COMPLAINT OR GIVING TESTIMONY UNDER THE ORDER
EXTENDS TO FILING A "GRIEVANCE" AND TESTIFYING DURING THAT GRIEVANCE
PROCEDURE AND FURTHER THAT IT EXTENDS TO THE FILING OF A CHARGE UNDER
THE ORDER. /32/
IT IS UNNECESSARY TO DECIDE WHETHER THE PROTECTION AFFORDED BY
SECTION 19(A)(4) IS AS BROAD AS THE UNION CONTENDS BECAUSE, AS FOUND
ABOVE, MR. RUNTON WAS DECLARED EXCESS AND TEMPORARILY TRANSFERRED TO THE
PACKAGING SHOP NOT BECAUSE OF THE FILING OF THE GRIEVANCE OR THE FILING
OF THE CHARGE BUT RATHER BECAUSE OF THE FLUCTUATING WORKLOAD. FURTHER
THE RECORD FAILS TO ESTABLISH THAT HIS TRANSFER WAS EXTENDED BECAUSE HE
FILED A CHARGE; RATHER IT ESTABLISHES THAT HE WAS NEEDED AND ASSIGNED
TO THE PACKAGING SHOP UNTIL JULY 18 BECAUSE OF ITS WORKLOAD. /33/
IN THESE CIRCUMSTANCES THEREFORE IT IS CONCLUDED THAT THE ACTIVITY
DID NOT ENGAGE IN CONDUCT WHICH VIOLATED SECTION 19(A)(4) OF THE ORDER.
IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE, IT IS RECOMMENDED
THAT THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS DISMISS THE
COMPLAINT.
DATED: JULY 25, 1974
WASHINGTON, D.C.
/1/ IT ALSO HAS EMPLOYEES ASSIGNED TO CECIL FIELD, WHICH IS ALSO
LOCATED IN THE JACKSONVILLE AREA.
/2/ "REWORK" DESCRIBES WORK IN THE NATURE OF OVERHAUL OR MAINTENANCE
OF THE AIRCRAFT. THE PRECISE NATURE AND EXTENT OF THE REWORK IN
QUESTION VARIES ACCORDING TO THE PARTICULAR PROGRAM OR SYSTEM USED AT
ANY PRECISE TIME AND THE AIRCRAFT INVOLVED. THE NATURE OF THE "REWORK"
INVOLVED HEREIN WILL BE DESCRIBED WHERE APPROPRIATE AND NECESSARY.
/3/ UNLESS OTHERWISE NOTED ALL DATES HEREIN REFER TO 1973.
/4/ THE ELECTRONICS SHOPS ARE COMPOSED OF ELECTRONICS MECHANICS,
ELECTRONICS WORKERS AND ELECTRONICS HELPERS. AT TIMES MATERIAL HEREIN
THERE WERE NO HELPERS IN SHOP NO. 95685. EACH SHOP IS DUPLICATED BY
ANOTHER SHOP COMPRISED OF EMPLOYEES OF THE SAME TRADE DOING THE SAME
WORK, ONLY ON A DIFFERENT SHIFT.
/5/ THERE WAS ALSO A SMALL OVERLAPPING "C" SHIFT, WHICH WAS
ORGANIZATIONALLY PART OF THE "B" SHIFT.
/6/ SHOP NUMBER 95685 WAS PART OF SECTION NO. 95670. SECTION NO.
95670 CONTAINS THE SAME TRADE AND CRAFT SHOPS AS SECTION NO. 95680, ONLY
IT WORKS ON THE ALTERNATE SHIFT.
/7/ "ELECTRICAL WORK" IS DISTINGUISHED FROM "ELECTRONIC WORK."
ELECTRICAL WORK IS DONE IN ELECTRIC INSTALLATION SHOPS AND NORMALLY
INVOLVES REPLACEMENT OF THE REGULAR ELECTRICAL PARTS OF THE AIRCRAFT
(E.G., CABLES, WIRES, ELECTRICAL INSTRUMENTS, LIGHTING, ETC.).
ELECTRONIC WORK CONCERNS THE AIRCRAFTS' WEAPONS, WEAPONS SUPPORT AND
MISSION SYSTEMS (E.G. RADAR, CRYPTOGRAPHY SYSTEMS, ETC.).
/8/ THE ACTIVITY WAS ALSO DISPATCHING EMPLOYEES TO CECIL FIELD TO DO
REWORK AT THAT CITE.
/9/ OF TWELVE AIRCRAFT INITIALLY SCHEDULED FOR PRIDE CHANGES, SEVEN
HAD ALREADY BEEN TOTALLY COMPLETED (I.E., WORK OF ALL TRADES COMPLETED).
/10/ IF THE "LOAN" EXCEEDS 30 DAYS A FORM SF-52 MUST BE COMPLETED.
/11/ IN THE WEAPONS DIVISION EMPLOYEES DECLARED EXCESS, AND THEREFORE
ELIGIBLE FOR LOAN, ARE CHOSEN FROM AN ALPHABETICAL ROSTER, BY SHOP, RATE
AND SHIFT. IT SHOULD BE NOTED SHIFT AND SHOP OFTEN REFER TO THE SAME
ENTITY. THIS IS THE NORMAL SYSTEM IN THE WEAPONS DIVISION, BUT IT CAN
BE DEPARTED FROM FOR OVERRIDING REASONS. OTHER DIVISIONS MAY UTILIZE
SLIGHTLY DIFFERENT SYSTEMS FOR DECLARING EMPLOYEES EXCESS.
/12/ WITHIN THIS FRAMEWORK OF ATTEMPTING TO FIND PRODUCTIVE WORK FOR
ALL ITS EMPLOYEES, EVERY ATTEMPT IS MADE TO PLACE EMPLOYEES IN SHOPS
WHERE THEIR WORK WOULD BE AS CLOSELY RELATED AS POSSIBLE TO THEIR TRADE
SKILLS.
/13/ MR. HALL WAS NORMALLY THE SUPERVISOR OF THE ELECTRONICS SYSTEM
REPAIR SHOP, NO. 94242. THE REGULAR FOREMAN OF SHOP NO. 95685 WAS
CHARLES H. CARSE. FOR TRAINING PURPOSES MR. HALL AND MR. CARSE HAD
TRADED SUPERVISORY DUTIES AND SHOPS. THIS TRAINING TOUR ENDED AND BOTH
CARSE AND HALL RETURNED TO THEIR RESPECTIVE SHOPS ON JUNE 4.
/14/ OTHER FOREMEN IN THE WEAPONS DIVISION WERE ALSO AFFECTED BY THE
DECREASING WORKLOAD AND A NUMBER OF AIRCRAFT ELECTRICIANS AND AIRCRAFT
ELECTRICAL WORKERS WERE MADE AVAILABLE FOR LOAN AT THIS TIME.
/15/ MR. HALL ADMITTEDLY KNEW, AT THIS TIME THAT MR. RUNTON HAD FILED
A GRIEVANCE.
/16/ ELECTRONICS MECHANICS WERE APPARENTLY HIGHER GRADED AND MORE
SKILLED THAN ELECTRONICS WORKERS.
/17/ TWO OTHER ;ELECTRICAL WORKERS, MR. GARLINGTON AND MR. VAUGHN
WERE PERMANENTLY ASSIGNED TO SHOP NO. 95365 (A-4 AIRCRAFT) WHICH
ALTHOUGH NORMALLY SUPERVISED BY MR. CARSE, WAS SEPARATE FROM SHOP NO.
95685. THESE TWO EMPLOYEES DURING THE TIME IN QUESTION MIGHT HAVE DONE
THE SAME WORK IN SHOP NO. 95685. FURTHER, HOWEVER, THEY TOO WERE
DECLARED EXCESS ON JUNE 6.
/18/ BY MEMORANDUM DIRECTED TO THE WEAPONS DIVISION SUPERINTENDENT,
DATED MAY 30, AND BY AN ADDITION TO THE MEMORANDUM DATED JUNE 1, A
NUMBER OF AIRCRAFT ELECTRICAL WORKERS AND AIRCRAFT ELECTRICIANS WERE
DECLARED TO BE EXCESS BY MR. GENTRY.
/19/ MR. ROHWELLER PREPARED A MEMORANDUM DATED JUNE 1 ADVISING THE
PRODUCTION DEPARTMENT THAT FIVE ELECTRICAL WORKERS AND TWO ELECTRICIANS
WERE EXCESS AND AVAILABLE FOR LOAN FOR THREE WEEKS. ON JUNE 7 THE
ACTING HEAD OF THE WEAPONS DIVISION, MR. G. E. HAM, STATED THAT TWO MORE
ELECTRICAL WORKERS WERE EXCESS.
/20/ ALTHOUGH MR. RUNTON HAD WORKED IN SHOP NO. 95685 FOR MORE THAN
FOUR YEARS AND HAD BEEN DECLARED EXCESS BEFORE, HE HAD NEVER BEEN LOANED
OUT OF HIS DIVISION OR TRADE DURING THIS PERIOD.
/21/ MR. COLLINS WAS LOANED FOR A PERIOD OF A TERMINATED ONE. TWO
OTHER EMPLOYEES WHO HAD BEEN "LOANED" TO THE PACKAGING SHOP, MR.
JENNINGS AND MR. SPENCER, ALSO HAD THEIR "LOAN" TERMINATED ON JULY 18
ALSO A WEEK EARLIER.
/22/ MR. CLARK HAD APPARENTLY BEEN TEMPORARILY ASSIGNED TO SHOP NO.
95685 ON SHIFT "C" UNTIL ABOUT JUNE 12, WHEN HE RETURNED TO HIS HOME
SHOP.
/23/ THE OTHER TWO EMPLOYEES, MR. GOTTSCHALK AND MR. HELFRICK, WHO
HAD BEEN DECLARED EXCESS BY MR. HALL HAD ALREADY BEEN LOANED TO ANOTHER
SHOP.
/24/ THE RECORD FAILS TO ESTABLISH THAT MR. CARSE THEREAFTER EVER
REQUESTED THAT MR. RUNTON BE RETURNED TO SHOP NO. 95685 BECAUSE OF AN
ACTUAL INCREASE IN WORKLOAD.
/25/ MR. HATCHER WAS ASSIGNED TO SHOP NO. 94114.
/26/ THE FIRST PARAGRAPH OF THIS MEMORANDUM STATES: "I HAVE
DESIGNATED MR. DESMOND V. HATCHER, CHIEF STEWARD FOR NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES AS MY LEGAL REPRESENTATIVE IN THIS
GRIEVANCE ACTION."
/27/ THE FACT THAT MR. RUNTON WAS NOT IN THE UNIT WHEN THE GRIEVANCE
FIRST AROSE DOES NOT INDICATE HE WOULD NOT SEEK UNION ASSISTANCE.
FURTHER THE TESTIMONY OF THE UNION PRESIDENT, WHO WAS NOT A PARTY TO MR.
RUNTON'S CONVERSATION WITH MR. HATCHER IS NOT PERSUASIVE. HE MERELY
SEEMED TO DRAW CONCLUSIONS FROM THE FACT THAT MR. RUNTON DID NOT SOMEHOW
FORMALLY REQUEST THE UNION TO REPRESENT HIM. IT IS FOUND THAT BY GOING
TO THE UNION CHIEF STEWARD MR. RUNTON WAS REASONABLY FOLLOWING THE
COURSE OF SEEKING UNION ASSISTANCE THAT ANY EMPLOYEE MIGHT FOLLOW.
/28/ THE GRIEVANCE WAS PRESENTED TO THE ASSISTANT SECRETARY FOR A
GRIEVABILITY/ARBITRARILY DETERMINATION (CASE NO. 42-2451).
/29/ AS WERE ELECTRONIC AND ELECTRICAL EMPLOYEES FROM OTHER SHOPS.
/30/ C.F. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, HOUSTON AREA OFFICE, A/SLMR NO. 126; VETERANS
ADMINISTRATION, A/SLMR NO. 296. ALTHOUGH NOT BINDING THE RATIONALE
EXPRESSED BY THE SUPREME COURT IN RADIO OFFICER'S UNION V. NLRB, 347
U.S. 17 (1954) IS PERSUASIVE.
/31/ THE PARTIES MET INFORMALLY TO DISCUSS THE UNFAIR LABOR PRACTICE
CHARGE ON JULY 9, 1973.
/32/ THE UNION APPARENTLY RELIES ON THE REASONING OF THE SUPREME
COURT IN NLRB V SCRIVENER, 405 U.S. 117.
/33/ IN THIS REGARD IT IS NOTED TWO ELECTRONICS WORKERS FROM SHOP NO.
95685 WERE TRANSFERRED TO DIFFERENT SHOPS BEFORE MR. RUNTON AND THEIR
TEMPORARY TRANSFERS DID NOT TERMINATE UNTIL NOVEMBER 1973, WELL AFTER
MR. RUNTON'S.
4 A/SLMR 445; P. 730; CASE NO. 31-7559(CA); OCTOBER 22, 1974.
U.S. DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD
A/SLMR NO. 445
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
AN INDIVIDUAL, DANIEL F. MILLETT (COMPLAINANT), ALLEGING THAT THE U.S.
DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD (RESPONDENT) VIOLATED
SECTION 19(A)(1) AND (2) OF THE ORDER BY VIRTUE OF ITS ACTION IN ISSUING
A LETTER OF REPRIMAND TO THE COMPLAINANT, WHICH ACTION WAS ALLEGEDLY
DESIGNED TO DISCOURAGE BOTH UNION ACTIVITY AND MEMBERSHIP.
THE EVIDENCE DISCLOSED THAT THE COMPLAINANT, A CRANE OPERATOR, WAS
THE CURRENT PRESIDENT OF A LOCAL OF THE INTERNATIONAL UNION OF OPERATING
ENGINEERS AT THE PORTSMOUTH NAVAL SHIPYARD AND, AS CHIEF STEWARD FOR
THAT LOCAL, HAD BEEN ENGAGED IN GRIEVANCE REPRESENTATION AND OTHER UNION
ACTIVITIES. ON OCTOBER 4, 1973, THE COMPLAINANT, WHO PREVIOUSLY HAD
BEEN GIVEN AN ORAL REPRIMAND IN DECEMBER 1973, FOR BACKING A CRANE INTO
A PARKED CAR, "BOOMED" HIS CRANE DOWN INTO THE CARRIER CAB CAUSING
DAMAGE TO BOTH THE CRANE AND THE CAB. FOLLOWING DISCUSSIONS CONCERNING
THE ACCIDENT WITH HIS IMMEDIATE SUPERVISOR, THE COMPLAINANT WAS GIVEN A
WRITTEN REPRIMAND CHARGING HIM WITH A "SECTION 10 OFFENSE" UNDER THE
STANDARD SCHEDULE OF DISCIPLINARY OFFENSES AND PENALITIES, I.E.,
CARELESS WORKMANSHIP. THE PRESCRIBED PENALTY FOR A FIRST INFRACTION OF
SECTION 10 EXTENDS FROM A WRITTEN REPRIMAND TO A FIVE-DAY SUSPENSION.
THE COMPLAINANT CONTENDED THAT THE PENALTY ACCORDED HIM WAS MORE
SEVERE THAN NORMALLY ACCORDED TO OTHER EMPLOYEES FOR SIMILAR
INFRACTIONS. IN SUPPORT OF HIS POSITION, THE COMPLAINANT CITED THREE
OTHER EMPLOYEES WHO HAD ALLEGEDLY DAMAGED GOVERNMENT EQUIPMENT WITHOUT
RECEIVING "WRITTEN REPRIMANDS."
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE COMPLAINANT HAD
FAILED TO SUSTAIN THE BURDEN OF PROOF IN SUPPORT OF HIS ALLEGATIONS IN
THE COMPLAINT. IN THIS REGARD, HE FOUND THAT WHILE THE COMPLAINANT'S
UNCONTROVERTED TESTIMONY ESTABLISHED THE EXISTENCE OF OTHER SIMILAR
ACCIDENTS, IT DID NOT DISCLOSE ANY INFORMATION AS TO THE CIRCUMSTANCES
SURROUNDING THE ACCIDENTS, THE SPECIFIC PENALITIES IMPOSED AGAINST THE
EMPLOYEES, OR WHETHER OR NOT THE ACCIDENTS WERE THE FIRST FOR THE
EMPLOYEES INVOLVED. THUS, AND NOTING THAT THE WRITTEN REPRIMAND GIVEN
THE COMPLAINANT WAS THE LEAST OF ALL POSSIBLE PENALTIES SUGGESTED ON THE
DISCIPLINARY SCHEDULE, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
RECORD DID NOT ESTABLISH THAT THE PENALTY ACCORDED THE COMPLAINANT FOR
DAMAGING GOVERNMENT EQUIPMENT CONSTITUTED DISPARATE TREATMENT AND THAT
THE COMPLAINANT HAD FAILED TO ESTABLISH ANY UNION ANIMUS OR THAT THE
PENALTY IMPOSED UPON HIM WAS IN ANY WAY RELATED TO HIS UNION ACTIVITIES
IN VIOLATION OF SECTIONS 19(A)(1) AND (2) OF THE ORDER.
THE ASSISTANT SECRETARY, NOTING THE ABSENCE OF EXCEPTIONS, ADOPTED
THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE, AND ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
U.S. DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD
AND
DANIEL F. MILLETT
ON AUGUST 19, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 31-7559(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 22, 1974
IN THE MATTER OF
U.S. DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
AND
DANIEL F. MILLETT
A. GENE NIRO, ESQUIRE
U.S. NAVY DEPARTMENT
REGIONAL OFFICE OF CIVILIAN
MANPOWER MANAGEMENT
495 SUMMER STREET
BOSTON, MASSACHUSETTS
MR. DANIEL F. MILLETT
MIDDLE ROAD
AMESBURY, MASSACHUSETTS
MR. CHARLES PALUSKA
REPRESENTATIVE
INTERNATIONAL UNION OF OPERATING
ENGINEERS
1125 17TH STREET, N.W.
WASHINGTON, D.C.
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON JANUARY 23, 1974,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY DANIEL F. MILLETT, AN
INDIVIDUAL, AGAINST THE U.S. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL
SHIPYARD, HEREINAFTER CALLED THE RESPONDENT OR AGENCY, A NOTICE OF
HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL DIRECTOR FOR
THE NEW YORK REGION ON JUNE 11, 1974.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER BY VIRTUE OF ITS ACTION
IN ISSUING A LETTER OF REPRIMAND TO MILLETT, THE COMPLAINANT HEREIN,
SINCE SUCH ACTION WAS DESIGNED TO DISCOURAGE BOTH UNION ACTIVITY AND
MEMBERSHIP.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JULY 23, 1974, IN
PORTSMOUTH, NEW HAMPSHIRE. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND THE RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS AND
RECOMMENDATIONS:
THE METAL TRADES COUNCIL, WHICH CONSISTS OF THE INTERNATIONAL UNION
OF OPERATING ENGINEERS AND FIFTEEN OTHER CRAFT UNIONS, HAS BEEN THE
BARGAINING REPRESENTATIVE FOR APPROXIMATELY NINETY PERCENT OF THE
EMPLOYEES OF THE PORTSMOUTH NAVAL SHIPYARD SINCE ABOUT 1963. /1/ EACH
OF THE SIXTEEN AFFILIATED CRAFT UNION LOCALS COMPRISING THE METAL TRADES
COUNCIL HAVE THEIR OWN DULY ELECTED PRESIDENTS WHO USUALLY SERVE AS THE
"CHIEF STEWARDS" FOR THE METAL TRADES COUNCIL. ADDITIONALLY, THE LOCAL
PRESIDENTS ALSO SERVE ON THE COUNCIL'S EXECUTIVE BOARD. IN ADDITION TO
THE CHIEF STEWARDS THERE ARE APPROXIMATELY FORTY TO FIFTY SHOP STEWARDS.
MILLETT, A CRANE OPERATOR AND THE COMPLAINANT HEREIN, IS CURRENTLY
PRESIDENT OF THE INTERNATIONAL OPERATING ENGINEERS LOCAL AT THE
PORTSMOUTH NAVAL SHIPYARD AND A CHIEF STEWARD. THE RECORD INDICATES
THAT HE ACHIEVED SUCH POSITION SOMETIME IN 1971. /2/ AS CHIEF STEWARD,
MILLETT PARTICIPATED IN THE FILING OF A NUMBER OF GRIEVANCES AS THE
REPRESENTATIVE OF VARIOUS EMPLOYEES AND HAD CONSTANT CONTACT WITH
MANAGEMENT OVER THE RESOLUTION OF SUCH GRIEVANCES.
ON OCTOBER 4, 1973, MILLETT, WHO HAD BEEN GIVEN AN ORAL REPRIMAND
BACK IN DECEMBER 1972, FOR BACKING A CRANE INTO A PARKED CAR, "BOOMED"
HIS CRANE DOWN INTO THE CARRIER CAB CAUSING DAMAGE TO BOTH THE CRANE AND
CAB IN THE AMOUNT OF $481.50. THEREAFTER, ON OCTOBER 12, 1973,
FOLLOWING DISCUSSIONS WITH JOHN KNOWLTON, CRANE OPERATOR FOREMAN,
MILLETT WAS GIVEN A WRITTEN REPRIMAND BY KNOWLTON. KNOWLTON, APPLYING
THE STANDARD SCHEDULE OF DISCIPLINARY OFFENSES AND PENALTIES ISSUED BY
THE COMMANDER OF THE PORTSMOUTH NAVAL SHIPYARD, CHARGED MILLETT WITH A
SECTION 10 OFFENSE, I.E. CARELESS WORKMANSHIP. THE PRESCRIBED PENALTY
FOR THE FIRST INFRACTION OF SECTION 10 EXTENDS FROM A REPRIMAND TO A
FIVE DAY SUSPENSION. FURTHER, ACCORDING TO THE SCHEDULE OF DISCIPLINARY
OFFENSE, MILLETT COULD HAVE BEEN CHARGED WITH A SECTION 13 OFFENSE,
DAMAGE TO GOVERNMENT PROPERTY. THE SUGGESTED PENALTY FOR A FIRST
INFRACTION OF SECTION 13 EXTENDS FROM A REPRIMAND TO A TEN DAY
SUSPENSION.
MILLETT, WHO WAS THE SOLE WITNESS FOR COMPLAINANT, CONTENDS THAT THE
PENALTY ACCORDED HIM, I.E. WRITTEN REPRIMAND, WAS MORE SEVERE THAN
NORMALLY ACCORDED TO OTHER EMPLOYEES FOR SIMILAR INFRACTIONS. IN
SUPPORT OF HIS POSITION IN THIS REGARD, HE CITED THREE OTHER EMPLOYEES
WHO HAD ALLEGEDLY DAMAGED GOVERNMENT EQUIPMENT WITHOUT RECEIVING
"WRITTEN REPRIMANDS." WHEN QUESTIONED AS TO THE SOURCE OF HIS
INFORMATION WITH REGARD TO THE PENALTIES METED OUT TO THE THREE CITED
EMPLOYEES, MILLETT ATTRIBUTED HIS INFORMATION TO THE ABSENCE OF ANY
NOTICE FROM THE RESPONDENT TO THE METAL TRADES COUNCIL WITH RESPECT TO
DISCIPLINARY ACTION TAKEN AGAINST THE THREE EMPLOYEES. ACCORDING TO
MILLETT, WHOSE TESTIMONY IN THIS REGARD STANDS UNDISPUTED, THE METAL
TRADES COUNCIL IS TO RECEIVE A COPY OF ANY DISCIPLINARY ACTION THAT
TAKES PLACE IN THE SHIPYARD. HOWEVER, MILLETT FURTHER ACKNOWLEDGED THAT
ON OCCASION THE METAL TRADES COUNCIL DOES NOT RECEIVE COPIES OF
DISCIPLINARY ACTIONS BECAUSE OF MAIL OR OTHER DIFFICULTIES, AND THAT HE
DID NOT KNOW THE SUPERVISOR INVOLVED IN THE INCIDENTS OR WHETHER THE
INFRACTIONS WERE THE FIRST FOR THE EMPLOYEES INVOLVED. LASTLY, MILLETT
ACKNOWLEDGED THAT REPORTS OF ORAL REPRIMANDS WOULD NOT BE SENT TO THE
COUNCIL.
MILLETT, WHO FURTHER CONTENDED THAT THE DISPARATE TREATMENT ACCORDED
HIM WAS MOTIVATED BY DISCRIMINATORY CONSIDERATIONS, OFFERED NO EVIDENCE
INDICATING UNION ANIMUS ON THE PART OF RESPONDENT'S REPRESENTATIVES.
SECTION 203.14 OF THE REGULATIONS IMPOSES UPON THE COMPLAINANT THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE. MILLETT, THE COMPLAINANT HEREIN, HAS FAILED TO SUSTAIN
THIS BURDEN.
AS NOTED ABOVE, MILLETT CONTENDS THAT THE PENALTY ACCORDED HIM, I.E.
WRITTEN REPRIMAND, CONSTITUTES DISPARATE TREATMENT SINCE SUCH PENALTY
WAS MORE SEVERE THAN THAT GIVEN TO THREE OTHER EMPLOYEES FOR SIMILAR
ACCIDENTS. WHILE HIS UNCONTROVERTED TESTIMONY ESTABLISHED THE EXISTENCE
OF THE OTHER ACCIDENTS, IT DOES NOT, HOWEVER, DISCLOSE THE CIRCUMSTANCES
SURROUNDING THE ACCIDENTS, THE SPECIFIC PENALTIES IMPOSED AGAINST THE
EMPLOYEES, /3/ NOR WHETHER OR NOT THE ACCIDENTS WERE THE FIRST FOR THE
RESPECTIVE EMPLOYEES INVOLVED. IN VIEW OF THE ABSENCE OF SUCH EVIDENCE,
AND NOTING THAT THE WRITTEN REPRIMAND GIVEN MILLETT, BY A NEWLY
APPOINTED SUPERVISOR, WAS THE LEAST OF ALL POSSIBLE PENALTIES SUGGESTED
ON THE DISCIPLINARY SCHEDULE, I FIND THAT THE RECORD AS A WHOLE DOES NOT
ESTABLISH THAT THE PENALTY ACCORDED MILLETT FOR DAMAGING GOVERNMENT
EQUIPMENT CONSTITUTES DISPARATE TREATMENT. MOREOVER, EVEN ASSUMING A
CONTRARY CONCLUSION, I FIND THAT MILLETT HAS FAILED TO ESTABLISH THAT
THE PENALTY IMPOSED UPON HIM WAS IN ANY WAY RELATED TO HIS UNION
ACTIVITIES IN VIOLATION OF SECTIONS 19(A)(1) AND (2) OF THE ORDER. IN
REACHING THIS LATTER CONCLUSION, I NOTE THE ABSENCE OF ANY EVIDENCE OF
UNION ANIMUS AND THE FACT THAT MILLETT'S PREDECESSORS AS CHIEF STEWARDS
LEFT SUCH POSITIONS UPON BEING REWARDED WITH PROMOTIONS TO SUPERVISORY
POSITIONS.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
DATED AUGUST 19, 1974
WASHINGTON, D.C.
/1/ THE PORTSMOUTH NAVAL SHIPYARD HAS ALSO GRANTED EXCLUSIVE
RECOGNITION TO FOUR OTHER LAB R ORGANIZATIONS WHICH APPARENTLY REPRESENT
THE REMAINING TEN PERCENT OF THE SHIPYARD'S PERSONNEL.
/2/ MILLETT'S PREDECESSORS IN SUCH POSITION, JIM SPILLANE AND IRWIN
PIKE, LEFT THE POSITION IN 1971 AND 1968, RESPECTIVELY, UPON BEING
PROMOTED TO FOREMEN.
/3/ ALTHOUGH MILLETT CONTENDS THAT THE PENALTIES IMPOSED WERE LESS
THAN A WRITTEN REPRIMAND SINCE OTHERWISE THE UNION WOULD HAVE BEEN
INFORMED, HE ACKNOWLEDGES THAT, DESPITE THE OBLIGATION IMPOSED UPON
RESPONDENT, THE UNION DOES NOT ALWAYS RECEIVE COPIES OF ALL DISCIPLINARY
ACTIONS.
4 A/SLMR 444; P. 717; CASE NO. 41-3403(CA); OCTOBER 22, 1974.
INTERNAL REVENUE SERVICE,
MEMPHIS SERVICE CENTER,
MEMPHIS, TENNESSEE
A/SLMR NO. 444
THIS PROCEEDING AROSE UPON THE FILING BY THE NATIONAL TREASURY
EMPLOYEES UNION AND NATIONAL TREASURY EMPLOYEES UNION, LOCAL CHAPTER 098
(COMPLAINANT) OF AN UNFAIR LABOR PRACTICE COMPLAINT INVOLVING THREE
SEPARATE INSTANCES IN WHICH THE INTERNAL REVENUE SERVICE, MEMPHIS
SERVICE CENTER, MEMPHIS, TENNESSEE (RESPONDENT) ALLEGEDLY VIOLATED THE
ORDER.
IN THE FIRST INSTANCE IT WAS ARRESTED, IN SUBSTANCE, THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1), (2) AND (4) OF THE ORDER BY THE
ALLEGED IMPROPER STATEMENT OF A SUPERVISOR TO AN EMPLOYEE AT A MEETING
BETWEEN THE TWO. THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF
THIS ALLEGATION. HE BASED HIS RECOMMENDATION PRIMARILY ON HIS
CREDIBILITY RESOLUTION THAT THE SUPERVISOR'S VERSION OF THE EVENTS OF
THE MEETING WAS THE MORE CREDIBLE RECOLLECTION OF THE MEETING INVOLVED.
IN THE SECOND INSTANCE IT WAS ASSERTED, IN SUBSTANCE, THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1), (2) AND (4) OF THE ORDER BY THE
ALLEGED STATEMENTS OF A SUPERVISOR AND A SENIOR EMPLOYEE TO AN EMPLOYEE
TO THE EFFECT THAT THE EMPLOYEE WOULD RECEIVE A POOR EVALUATION IF SHE
VOLUNTARILY FURLOUGHED HERSELF OTHER THAN DURING THE PRESCRIBED FURLOUGH
PERIOD AND WOULD CONTINUE TO RECEIVE POOR EVALUATIONS IF SHE WENT TO HER
EXCLUSIVE REPRESENTATIVE AND GRIEVED. THE SENIOR EMPLOYEE WHO WAS
PRESENT ALLEGEDLY INDICATED THAT THIS WAS TRUE AS IT HAD HAPPENED TO
HER. THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THIS
ALLEGATION BASED ON HIS CREDIBILITY RESOLUTIONS.
IN THE THIRD INSTANCE THE COMPLAINANT ASSERTED, IN SUBSTANCE, THAT
THE RESPONDENT, THROUGH A SUPERVISOR, VIOLATED SECTION 19(A)(1), (2) AND
(6) BY ALLEGEDLY CONFRONTING AN EMPLOYEE CONCERNING THE SUBJECT MATTER
OF A PENDING GRIEVANCE WHILE THE EMPLOYEE WAS WITHOUT REPRESENTATION.
THE ADMINISTRATIVE LAW JUDGE IN RECOMMENDING DISMISSAL OF THE ALLEGATION
AGAINST THE RESPONDENT NOTED THE LACK OF ANY EVIDENCE AS TO WHAT
TRANSPIRED AT THE ALLEGED MEETING BETWEEN THE SUPERVISOR AND EMPLOYEE,
MUCH LESS WHETHER IT WAS A MATTER RELATING TO THE GRIEVANCE WHICH HAD
BEEN FILED. IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE NOTED THAT THE
FACT THAT NO ONE AT THE ALLEGED MEETING TESTIFIED AT THE HEARING.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, HIS CREDIBILITY FINDINGS, AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S
ANSWERING BRIEF, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
INTERNAL REVENUE SERVICE,
MEMPHIS SERVICE CENTER,
MEMPHIS, TENNESSEE
AND
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, LOCAL CHAPTER 098
ON MAY 23, 1974, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE RESPONDENT FILED AN ANSWERING BRIEF.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS FILED BY THE COMPLAINANT AND THE ANSWERING BRIEF FILED BY THE
RESPONDENT, I HEREBY ADOPT THE FINDINGS, /1/ CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 41-3403 (CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 22, 1974
/1/ WITH RESPECT TO THE ADOPTION OF THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS, SEE NAVY EXCHANGE, U.S. NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND, A/SLMR NO. 180.
IN THE MATTER OF
INTERNAL REVENUE SERVICE
MEMPHIS SERVICE CENTER
MEMPHIS, TENNESSEE,
AND
NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, LOCAL CHAPTER 098,
ROBERT J. WILSON, ESQ.
OFFICE OF CHIEF COUNSEL
ROOM 4109-INTERNAL REVENUE SERVICE
1111 CONSTITUTION AVENUE, N.W.
WASHINGTON, D.C. 20224,
MICHAEL E. GOLDMAN
ASSISTANT COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
1730 K STREET, N.W., SUITE 1101
WASHINGTON, D.C. 20006,
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
ON OR ABOUT MAY 1, 1973, RESPONDENT'S SUPERVISOR, NORMA DENNIS AND
SENIOR BETTY SHANLY CALLED EMPLOYEE SUSAN HIGGENBOTHAM FROM OVERTIME
DUTY TO A CANTEEN TO DISCUSS MATTERS PERTAINING TO MRS. HIGGENBOTHAM'S
EMPLOYMENT; MRS. HIGGENBOTHAM WAS ALLEGEDLY TOLD SHE WOULD RECEIVE A
POOR EVALUATION IF SHE VOLUNTARILY FURLOUGHED HERSELF AND WOULD CONTINUE
TO RECEIVE POOR EVALUATIONS IF SHE WENT TO THE UNION AND GRIEVED; BETTY
SHANLY, ASSURED HER THIS WAS TRUE AS IT HAD HAPPENED TO HER. SUCH
ACTIONS WERE CONSIDERED AN ATTEMPT TO COERCE AND INTIMIDATE AN EMPLOYEE
INTO NOT FILING A GRIEVANCE AND EXERCISING HER RIGHTS IN VIOLATION OF
SECTION 19(A)(1), (2) AND (4) OF THE ORDER.
ON OR ABOUT APRIL 26, 1973, A GRIEVANCE WAS FILED ON BEHALF OF KATHY
CARSON AND IT NAMED ANDY PCHOLA, NAIRE, LOCAL CHAPTER 098, PRESIDENT AND
FRED D'ORAZIO, NAIRE FIELD REPRESENTATIVE AS HER OFFICIAL
REPRESENTATIVES; THE GRIEVANCE CONCERNED A WRITTEN REPRIMAND AND AN
ORAL ULTIMATUM BASED THEREON BY RESPONDENT'S SUPERVISOR, BETTY MILLER
THAT EMPLOYEE KATHY CASON WOULD BE TERMINATED IN TWO WEEKS IF HER WORK
DID NOT IMPROVE; THE GRIEVANCE WAS PENDING ON MAY 10, 1973, WHEN BETTY
MILLER MET WITH KATHY CASON AND TOLD HER THAT SHE HAD ONE WEEK WITHIN
WHICH TO RESIGN OR HER SERVICES WOULD BE TERMINATED; SINCE KATHY CARSON
WAS WITHOUT REPRESENTATION WHEN CONFRONTED BY HER SUPERVISOR ABOUT THE
SUBJECT MATTER OF A PENDING GRIEVANCE HER ACTIONS WERE ALLEGED TO
VIOLATE SECTIONS 19(A)(1), (2) AND (6) OF THE ORDER.
A HEARING WAS HELD IN THE AFOREMENTIONED MATTER ON FEBRUARY 12 AND
13, 1974, IN MEMPHIS, TENNESSEE. ALL PARTIES WERE REPRESENTED AND
THROUGH THEIR COUNSEL WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING ON
THE ISSUES HEREIN AND TO MAKE ORAL ARGUMENT. BRIEFS HAVE BEEN SUBMITTED
BY COUNSEL FOR THE PARTIES FOR CONSIDERATION OF THE UNDERSIGNED.
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR AND UPON THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
MRS. BEVERLY CASPER IS A TAX EXAMINER IN THE RESPONDENT'S ADJUSTMENT
BRANCH OF THE IRS, /1/ MEMPHIS SERVICE CENTER, MEMPHIS, TENNESSEE.
DURING AUGUST 1972, EMPLOYEES WERE BEING RECRUITED OR SELECTED FOR
TRAINING IN A NEW UNIT IN THE ADJUSTMENTS BRANCH OF THE CENTER CALLED
THE FIRST READ ORGANIZATION. SOME OF THOSE BEING SOUGHT WERE CONCERNED
ABOUT WHAT THEIR FUTURE WOULD BE IN THIS NEW ORGANIZATION AND RICHARD
STEFANIK, WHO WAS THEN CHIEF, ADJUSTMENTS BRANCH, TESTIFIED THEY WERE
TOLD THAT UPON COMPLETION OF TRAINING, IF THEY WERE OTHERWISE QUALIFIED,
THEY WOULD BE PROMOTED; ABOUT THE TIME THAT TRAINING WAS COMPLETED
THERE WAS A PRESIDENTIAL FREEZE ON ALL PROMOTIONS IN THE FEDERAL SERVICE
AND THIS WAS NOT LIFTED UNTIL LATE FEBRUARY OR MARCH 1973; WHEN THE
FREEZE WAS LIFTED SOME SEVENTY OR EIGHTY PEOPLE PROMOTED AND DISCUSSIONS
CONCERNING PROMOTIONS WERE BEING HELD WITH ALL EMPLOYEES AT THE CENTER
AT THE TIME. ONE OF THESE EMPLOYEES WAS BEVERLY CASPER. MRS. CASPER
TESTIFIED THAT HER ACTING SUPERVISOR HAZEL HOWARD TOLD HER SHE WOULD GET
A PROMOTION BUT ABOUT TWO WEEKS LATER ON MARCH 13, 1973, MRS. BARBARA
FANT, HER SUPERVISOR TOLD HER THAT SHE WAS NOT GOING TO GET THE
PROMOTION SHE HAD EXPECTED. THE REASON FOR NOT GRANTING THE PROMOTION
WAS STATED TO HAVE BEEN LOW PRODUCTION. SHE ADMITTED ON
CROSS-EXAMINATION OF BECOMING EMOTIONAL AND MAKING ABUSIVE REMARKS TO
THE SUPERVISOR. DOCUMENTARY EVIDENCE REFERS TO SUCH REMARKS AS: "IF
THAT'S THE WAY YOU FEEL YOU CAN TAKE THIS DAMN JOB AND STICK IT UP YOUR
ASSES; I'M TIRED OF TRYING TO APPEASE THESE DAMN PEOPLE; I'M SICK OF
THIS GOD-DAMN PLACE; . . . THIS GOD-DAMN PLACE IS TERRIBLE."
THE RECORD REVEALS THAT MRS. CASPER DID NOT REPORT FOR WORK ON MARCH
14 AND 15, 1973. ON MARCH 16, 1973, MR. STEFANIK CALLED HER INTO HER
OFFICE AND EXPLAINED TO HER THAT HE HAD CALLED THE CONFERENCE BECAUSE HE
WAS CONCERNED WITH HER BEHAVIOR ON MARCH 13, 1973, AND WHY SHE FELT THAT
WAY. MRS. CASPER ON DIRECT EXAMINATION TO AN INQUIRY AS TO WHAT
TRANSPIRED AT THE MEETING STATED:
"WELL HE CALLED ME IN THERE, AND I HAVE BEEN UPSET THE OTHER DAY WHEN
I LEFT THE BUILDING
AND HE ASKED MY REASON FOR MY OUTBURST, AND I SAID, WELL IT WAS
BECAUSE I WAS TOLD I WAS
GETTING A PROMOTION, AND THEN I ASKED HIM WHO HAD STOPPED MY
PROMOTION. HE SAID HE HAD
STOPPED IT BECAUSE MY PRODUCTION WASN'T HIGH ENOUGH. I SAID WHAT IS
PRODUCTION, I HAD NEVER
SEEN ANY FIGURES. HE SAID I DON'T HAVE THE FIGURES RIGHT HERE NOW
EITHER, SO THIS IS WHAT HE
CALLED ME IN THERE FOR."
SHE ALSO AFFIRMED ON CROSS-EXAMINATION THAT THE FIRST THING MR.
STEFANIK SAID AT THE MEETING RELATED TO HER CONDUCT ON MARCH 13. DURING
THE COURSE OF THE MEETING ON MARCH 16, ACCORDING TO MRS. CASPER SHE
INFORMED MR. STEFANIK THAT SHE WAS THINKING OF FILING A GRIEVANCE AND HE
REPLIED YOU CAN FILE A GRIEVANCE ON THIS "BUT I'VE GOT MORE ON YOU THAN
YOU'LL EVER GET ON ME, AND IF YOU DO FILE A GRIEVANCE, NO OTHER PART OF
THE SERVICE CENTER WILL WANT YOU." MRS. CASPER ALSO RELATED THAT A SHORT
WHILE BEFORE THE MARCH 13, 1973 INCIDENT SHE HAD BEEN ASKED BY THE CHIEF
OF THE MICROFILM RESEARCH SECTION IF SHE WOULD LIKE TO COME ON THE NIGHT
SHIFT AND GET A PROMOTION TO GRADE 6; SHE DECLINED AT THE TIME BECAUSE
SHE HAD BEEN TOLD SHE WOULD RECEIVE HER PROMOTION IN THE ADJUSTMENTS
SECTION; WHEN SHE RECONSIDERED AND WENT BACK TO APPLY FOR THE POSITION
IN THE MICROFILM SECTION AFTER MARCH 16, 1973, IT HAD ALREADY BEEN
FILLED. SHE FURTHER TESTIFIED THAT A FEW DAYS AFTER THE MARCH 16
INCIDENT SHE FILED A GRIEVANCE ON HER LACK OF PROMOTION; THAT WHEN SHE
LEARNED OF THE PRODUCTION REQUIREMENTS, SHE INCREASED HERS AND WAS
PROMOTED IN JULY 1973. THE TESTIMONY REVEALS THAT NEITHER SHE NOR HER
UNION REPRESENTATIVE EVEN CHECKED TO DETERMINE WHETHER THERE WERE ANY
DETRIMENTAL REMARKS IN HER PERSONNEL FOLDER.
MR. STEFANIK STATED THAT A UNIT SUPERVISOR HAD REPORTED THAT MRS.
CASPER HAD BECOME UPSET AND USED PROFANE LANGUAGE TO HER ON MARCH 13;
HE CALLED THE CONFERENCE ON MARCH 16 BECAUSE SHE WAS ABSENT ON THE 14TH
AND 15TH AND HE WAS CONCERNED WITH HER BEHAVIOR; WHEN HE ASKED HER TO
EXPLAIN SHE BECAME BELLIGERENT AND TOLD ME SHE DIDN'T FEEL IT WAS MY
DUTY OR RESPONSIBILITY TO TALK TO HER ABOUT HER BEHAVIOR BECAUSE SHE
FELT SHE HAD BEEN MISTREATED BY HAVING BEEN DENIED HER PROMOTION; WE
DISCUSSED SOME OF THE FACTS IN HER EVALUATION INCLUDING PRODUCTION AND
SHE INSISTED THAT SHE WAS ENTITLED TO IT SINCE IT HAD BEEN PROMISED BY
HER SUPERVISOR; I TOLD HER I COULD NOT DENY THAT BECAUSE I DIDN'T KNOW
WHETHER IT WAS TRUE OR NOT BUT THAT SHE WAS NOT PERFORMING ADEQUATELY TO
BE PROMOTED AT THAT TIME; AT THAT POINT SHE MENTIONED FILING A
GRIEVANCE AND I TOLD HER, "BEVERLY I THINK THAT IS YOUR PRIVILEGE AND
YOUR RIGHT TO DO SO, YOU CAN DO THIS. HOWEVER, I DON'T REALLY THINK YOU
HAVE BEEN MISTREATED, YOU HAD BEEN TREATED FAIRLY; YOU HAD BEEN RANKED
WITH ALL THE OTHER EMPLOYEES IN THE BRANCH, DOING LIKE WORK, AND THERE
WAS REALLY NO BASIS FOR A GRIEVANCE." MR. STEFANIK ALSO STATED THAT THE
QUESTION OF TRANSFER TO THE RESEARCH BRANCH CAME UP IN THE DISCUSSION
AND HE TOLD HER THAT IF SHE WAS SERIOUS ABOUT IT TO WRITE A LETTER AND
HE WOULD TAKE IT UP WITH THE APPROPRIATE BRANCH CHIEF AND SEE IF WE CAN
GET YOUR JOB BACK. I TOLD HER THAT I FELT THAT SHE WOULD NOT GET A GOOD
EVALUATION BECAUSE OF HER BEHAVIOR AND LOW PRODUCTIVITY AT THIS TIME.
THERE WERE NO WITNESSES AT THE MARCH 16, 1973 MEETING BETWEEN MR.
STEFANIK AND MRS. CASPER. LINDA REINERSMAN TESTIFIED THAT SHE HAD BEEN
A TAX EXAMINER IN THE ADJUSTMENTS UNIT AT THE MEMPHIS SERVICE CENTER
SINCE JULY 1972; WHEN MRS. CASPER CAME OUT OF MR. STEFANIK'S OFFICE ON
MARCH 16, 1973, SHE STOPPED BY FERN STOKLEY'S DESK FOR A MOMENT AND THEN
CAME OVER TO SEE ME; BEVERLY STATED THAT MR. STEFANIK HAD TOLD HER:
"I'VE GOT MORE ON YOU THAN YOU'VE GOT ON ME AND GO AHEAD AND FILE A
GRIEVANCE, THAT HE WOULD PUT SOMETHING IN HER PERSONNEL FOLDER SO THAT
NO OTHER AREA IN THE SERVICE CENTER WOULD WANT HER." /2/
(1) MRS. CASPER AND LINDA REINERSMAN TESTIFIED THAT MR. STEFANIK
PROMISED IN AUGUST 1972 TO PROMOTE THEM WHEN THEY COMPLETED A TRAINING
PROGRAM. LINDA REINERSMAN DID NOT GET HER PROMOTION UNTIL ABOUT APRIL
1973 AND MRS. CASPER IN JULY 1973.
(2) COMPLAINANT THROUGH VARIOUS WITNESSES INCLUDING UNION CHIEF
REPRESENTATIVE ANDREW PCHOLA, PRESENTED TESTIMONY THAT RICHARD STEFANIK
SHOULD NOT BE BELIEVED BECAUSE HE HAD TOLD EMPLOYEES THEY WOULD HAVE TO
WORK ON THE DAY OF PRESIDENT JOHNSON'S FUNERAL AND IT LATER DEVELOPED
THAT THEY DID NOT HAVE TO DO SO. IN THIS CONNECTION PCHOLA TESTIFIED
THAT A UNION OFFICIAL WAS TOLD THAT STEFANIK'S POSITION WAS CORRECT THAT
THE GOVERNMENT COULD REQUIRE AN EMPLOYEE OR GROUP OF EMPLOYEES TO APPEAR
FOR WORK ON A DAY OF MOURNING BUT THE UNION IN THIS MATTER GOT HIM
OVERRULED.
(3) THE TARWELL INCIDENT. UNION REPRESENTATIVE PCHOLA TESTIFIED THAT
SOMETIME IN 1972 MR. STEFANIK HAD SEEN HIM TALKING TO JUDY TARWELL THAT
HE WANTED TO TALK WITH HIM AND HE PROCEEDED TO EXPLAIN WHY JUDY HAD BEEN
TRANSFERRED TO ANOTHER AREA; HE WANTED TO KNOW WHETHER A GRIEVANCE WAS
CONTEMPLATED AND WHEN TOLD THAT IT WAS HE STATED THAT IF YOU ARE
SUCCESSFUL IN GETTING HER BACK IN THIS BRANCH, I'LL MAKE THINGS SO BAD
FOR HER, THAT YOU KNOW, SHE'LL WISH THAT SHE HADN'T FILED THAT GRIEVANCE
AND THEN BROUGHT BACK IN THIS BRANCH.
RICHARD STEFANIK TESTIFIED THAT JUDY TARWELL WAS ONE OF THE
APPLICANTS THAT WAS NOT SELECTED FOR THE NEW READ ORGANIZATION AND SHE
WAS CONCERNED ABOUT THIS AND ANDREW PCHOLA CAME IN TO DISCUSS THE
MATTER. THE SUBSTANCE OF THE CONVERSATION WAS THAT WE WERE NOT GOING TO
SELECT JUDY. AT THAT TIME, PCHOLA INDICATED THAT HE HAD HEARD JUDY'S
STORY AND JUST WANTED TO HEAR MY SIDE OF IT. STEFANIK STATED THAT HE
DIDN'T RECALL ANYTHING ABOUT A GRIEVANCE BEING FILED AND DID NOT STATE
THAT IF JUDY CAME BACK HE WOULD MAKE THINGS BAD FOR HER.
(4). THE ELECTION INCIDENT. ANDREW PCHOLA TESTIFIED THAT A WEEK
PRIOR TO THE UNION GAINING EXCLUSIVE RECOGNITION AT THE CENTER MR.
STEFANIK CALLED HIM, MARK DOLPHMAN AND JUSTINE ULSH INTO HIS OFFICE AND
WANTED TO KNOW HOW WE KNEW THAT WE WOULD BE MONITORS FOR THE UNION IN
THE ELECTION; WE TOLD HIM WE HAD VOLUNTEERED FOR THE JOB AND SPOKE TO A
NAIRE REPRESENTATIVE AND WOULD TAKE OUR OWN LEAVE; HE SAID OKAY, THAT
HE JUST WANTED TO GET THINGS STRAIGHT BECAUSE EMPLOYEES SOMETIMES GET
HURT IN THESE DEALINGS BETWEEN THE UNION AND MANAGEMENT.
(1) I FIND THAT THE PURPOSE OF THE MARCH 16, 1973 MEETING BETWEEN
BEVERLY CASPER, EMPLOYEE AND RICHARD STEFANIK, CHIEF ADJUSTMENT BRANCH
AT THE MEMPHIS SERVICE CENTER WAS TO DISCUSS HER CONDUCT ON MARCH 13,
1973, AND NOT HER PROMOTION AS ERRONEOUSLY ALLEGED IN THE COMPLAINT.
THE RECORD CLEARLY DEMONSTRATES THAT MRS. CASPER KNEW AND HAD AMPLE
REASON TO KNOW BY HER PAST CONDUCT THAT THIS WAS THE SUBJECT TO BE
DISCUSSED WHEN SHE WAS CALLED INTO CONFERENCE WITH MR. STEFANIK ON MARCH
16, 1973, AND HER TESTIMONY AT THE HEARING AFFIRMS THIS.
(2) MRS. CASPER'S DISAPPOINTMENT IN NOT RECEIVING A PROMOTION THAT
SHE WAS ANTICIPATING WAS A SUBJECT SHE BROUGHT INTO THE PICTURE AT THE
CONFERENCE ON MARCH 16, 1973, TO EXPLAIN OR MITIGATE THE CIRCUMSTANCES
RELATING TO HER CONDUCT WITH HER SUPERVISOR ON MARCH 13, 1973. MR.
STEFANIK DISCUSSED HER EVALUATION WITH HER IN AN ATTEMPT TO EXPLAIN WHY
A PROMOTION WAS NOT CONSIDERED WARRANTED AT THAT TIME.
(3) MRS. CASPER ADVANCED THE SUBJECT OF A TRANSFER TO MICROFILM
RESEARCH SECTION AND WAS TOLD THAT IF SHE WAS SERIOUS ABOUT A TRANSFER
TO WRITE A LETTER TO THAT EFFECT AND AN ATTEMPT WOULD BE MADE TO SECURE
A TRANSFER FOR HER; IT WAS ALSO EXPLAINED TO HER; THAT IN VIEW OF HER
RECENT BEHAVIOR AND LOW PRODUCTION SHE MIGHT NOT GET A GOOD EVALUATION
AT THIS TIME. NO REQUEST FOR TRANSFER IS SUBSEQUENTLY SHOWN TO HAVE
BEEN RECEIVED NOR WAS THIS PART OF MR. STEFANIK'S TESTIMONY DISPUTED.
(4) UPON CONSIDERATION OF THE TESTIMONY RELATING TO THE FACTS AND
CIRCUMSTANCES AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I
FIND THAT THE TESTIMONY OF RICHARD STEFANIK REFLECTS SUBSTANTIALLY WHAT
OCCURRED AT THE MARCH 16, 1973 CONFERENCE AND THAT HE DID NOT STATE TO
MRS. CASPER THAT IF SHE FILED A GRIEVANCE NO ONE WOULD WANT HER AFTER HE
FINISHED WITH HER PERSONNEL FOLDER.
(5) THE INCIDENTS RELATING TO THE PROMOTION FREEZE AND THE JOHNSON
FUNERAL DO NOT IMPEACH OR DISCREDIT MR. STEFANIK'S TESTIMONY AND I
DISCREDIT THE TESTIMONY OF ANDREW PCHOLA REGARDING THE IMPLICATION OF
THIS AND THE TARWELL INCIDENT. THE ELECTION INCIDENT IS NOT MATERIAL OR
RELATED IN TIME TO THE ISSUE HEREIN AND IN ANY EVENT DOES NOT DISCREDIT
THE TESTIMONY OF STEFANIK REGARDING THE MARCH 16, 1973 CONFERENCE OR THE
VIOLATION ALLEGED IN CHARGE A OF THE COMPLAINT.
(6) THE OFFER OF PROOF REGARDING WILLIAM GLANKER'S PURPORTED
TESTIMONY THAT HE HAD SEEN A NOTATION ON A PROMOTION REGISTER IN
MICROFILM RESEARCH SECTION ALONGSIDE MRS. CASPER'S NAME THAT SHE HAD
FILED AN UNFAIR LABOR PRACTICE COVERED AN EVENT OVER WHICH NO TIMELY
CHARGE OR ALLEGATION IN THE COMPLAINT HAD BEEN FILED; FURTHER, THE
NOTATION ALONG WITHOUT FURTHER EVIDENCE AS TO TIME AND CIRCUMSTANCES
WOULD NOT RELATE THE REMARKS TO THE MARCH 16, 1973 CONFERENCE; WHEN
THIS MOTION WAS MADE NO SATISFACTORY EXPLANATION WAS GIVEN AS TO WHY THE
INFORMATION FROM MR. GLANKLER WAS NOT PREVIOUSLY AVAILABLE AND WHEN
RENEWED, IT DID NOT APPEAR THAT IT WOULD CHANGE THE RESULT EVEN ASSUMING
IT TO BE TRUE.
(A) THE REQUIREMENTS OF THE ORDER. SECTION 19(A) OF THE ORDER
PROVIDES THAT AGENCY MANAGEMENT SHALL NOT: "(1) INTERFERE WITH,
RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
THIS ORDER; (2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING TENURE, PROMOTION, OR
OTHER CONDITIONS OF EMPLOYMENT; . . .
"(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
HE HAS FILED A
COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER."
SECTION 1(A) OF THE ORDER ENUNCIATES POLICY AND PROVIDES IN PART
THAT:
"EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS
THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN AND ASSIST A LABOR
ORGANIZATION OR TO
REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED
IN THE EXERCISE OF THIS
RIGHT. . . ."
IN THIS CASE, THE COMPLAINANT PREDICATED ITS CHARGE ON THE BASIS THAT
MRS. CASPER WAS CALLED INTO CONFERENCE ON MARCH 16, 1973, TO DISCUSS THE
PROMOTION SHE HAD BEEN RECENTLY DENIED RATHER THAN HER BEHAVIOR ON MARCH
13 WHICH WAS THE REAL REASON FOR THE MEETING. THE RECORD DOES NOT
DISCLOSE THAT OTHER THAN REPORTS HE MAY HAVE RECEIVED FROM HER
SUPERVISORS AS TO HER CONDUCT, MR. STEFANIK'S HAD ANY PREVIOUS CONTACTS,
AT LEAST OF A DETRIMENTAL NATURE, WITH HER BEFORE THE MARCH 16, 1973
CONFERENCE. SHE GIVES NO REASON FOR THE REMARKS SHE ATTRIBUTES TO HIM
THAT IF SHE FILED A GRIEVANCE HE WOULD HAVE MORE ON HER THAN SHE HAD ON
HIM AND NO ONE WOULD WANT HER AFTER HE FINISHED WITH HER PERSONNEL
FOLDER. SUCH REMARK, I FIND IS NOT IN CONTEXT WITH THE CREDIBLE
EVIDENCE OF RECORD, AND IS PREDICATED ON VARIOUS STATEMENTS TAKEN OUT OF
CONTEXT WITH THE EXPLANATION OFFERED IN CONNECTION WITH THE DENIAL OF
HER PROMOTION. MOREOVER, THE WAGE PRICE FREEZE INCIDENT WHICH DELAYED
PROMOTIONS OF THE UNIT PERSONNEL AND THE JOHNSON FUNERAL INCIDENT
CERTAINLY DID NOT IMPEACH THE CREDIBILITY OF RICHARD STEFANIK.
AS TO THE OFFER OF PROOF REGARDING WHAT MR. GLANKLER PURPORTEDLY TOLD
MRS. CASPER IT RELATED TO A MATTER ON WHICH THERE WAS NO TIMELY CHARGE
OR COMPLAINT. THE RELATION OF A STATUTE OF LIMITATIONS TO PROOF AT A
HEARING WAS ADDRESSED BY THE SUPREME COURT WHEN THEY INTERPRETED SECTION
10(B) OF THE NATIONAL LABOR RELATIONS ACT WHICH IS A SIX MONTH STATUTE
OF LIMITATIONS FOR THE ACT. IN LOCAL LODGE 1424 V. NLRB, 363 U.S. 411,
45 LRRM 3212 (1960) AT 3214-3215, THE COURT HELD:
IT IS DOUBTLESS TRUE THAT SECTION 10(B) DOES NOT PREVENT ALL USE OF
EVIDENCE RELATING TO
EVENTS TRANSPIRING MORE THAN SIX MONTHS BEFORE THE FILING AND SERVICE
OF AN UNFAIR LABOR
PRACTICE CHARGE. HOWEVER, IN APPLYING RULES OF EVIDENCE AS TO THE
ADMISSIBILITY OF PAST
EVENTS, DUE REGARD FOR THE PURPOSES OF SECTION 10(B) REQUIRES THAT
TWO DIFFERENT KINDS OF
SITUATIONS BE DISTINGUISHED. THE FIRST IS ONE WHERE OCCURRENCES
WITHIN THE SIX MONTH
LIMITATIONS PERIOD IN AND OF THEMSELVES MAY CONSTITUTE, AS A
SUBSTANTIVE MATTER, UNFAIR LABOR
PRACTICES. THERE, EARLIER EVENTS MAY BE UTILIZED TO SHED LIGHT ON
THE TRUE CHARACTER OF
MATTER OCCURRING WITHIN THE LIMITATIONS PERIOD; AND FOR THAT PURPOSE
SECTION 10(B) ORDINARILY
DOES NOT BAR SUCH EVIDENTIARY USE OF ANTERIOR EVENTS. THE SECOND
SITUATION IS THAT WHERE
CONDUCT OCCURRING WITHIN THE LIMITATIONS PERIOD CAN BE CHARGED TO BE
AN UNFAIR LABOR PRACTICE
ONLY THROUGH RELIANCE ON AN EARLIER UNFAIR LABOR PRACTICE. THERE THE
USE OF THE EARLIER
UNFAIR LABOR PRACTICE IS NOT MERELY "EVIDENTIARY", SINCE IT DOES NOT
SIMPLY LAY BARE A
PUTATIVE CURRENT UNFAIR LABOR PRACTICE. RATHER, IT SERVES TO CLOAK
WITH ILLEGALITY THAT WHICH
WAS OTHERWISE LAWFUL. AND WHERE A COMPLAINT BASED UPON THAT EARLIER
EVENT IS TIME BARRED, TO
PERMIT THE EVENT ITSELF TO BE SO USED IN EFFECT RESULTS IN REVIVING A
LEGALLY DEFUNCT UNFAIR
LABOR PRACTICE.
IN NATIONAL LABOR RELATIONS BOARD, REGION 17 AND NATIONAL LABOR
RELATIONS BOARD A/DLMR, NO. 295 THE ASSISTANT SECRETARY HELD THAT:
"WHILE A COMPLAINT MUST BE FILED WITH A CERTAIN SPECIFIED TIME PERIOD
. . . EVENTS
OCCURRING OUTSIDE SUCH PERIODS MAY PROPERLY BE INTRODUCED TO PROVIDE
BACKGROUND INFORMATION
AND TO SHED LIGHT ON EVENTS OCCURRING WITHIN THE TIME PERIOD. . . ."
IN VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL A/SLMR,
NO. 301, IT WAS HELD THAT THE ASSISTANT SECRETARY WOULD ONLY VIEW ACTS
OUTSIDE THE STATUTORY PERIOD AS BACKGROUND INFORMATION AND WOULD BASE NO
VIOLATION ON SUCH ACTS.
THE COMPLAINANT MISSTATED IN ITS CHARGE THE PRIMARY REASON FOR THE
OCTOBER 16, 1973 CONFERENCE AND FROM THAT POINT HAS ATTEMPTED TO UTILIZE
UNRELATED EVENTS, CIRCUMSTANCES AND ISOLATED BITS AND PIECES OF EVIDENCE
TO PYRAMID AND BOLSTER ITS ALLEGATION OF UNFAIR LABOR PRACTICE. ITS
PATCHWORK EFFORTS MADE NO MEANINGFUL PATTERN. EVEN IF I WERE TO
CONCLUDE THAT ONE OR TWO QUESTIONABLE INCIDENTS OCCURRED, I SHOULD HAVE
TO CONSIDER THEM HAPHAZARD AND ISOLATED.
WESTERN DIVISION OF NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO,
CALIFORNIA, A/SLMR, NO. 264, WAS CITED BY THE COMPLAINANT AS SUPPORTING
ITS POSITION. IN THAT CASE THE COMPLAINANT SPECIFICALLY ALLEGED THAT
THE RESPONDENT HAD INTERFERED WITH, RESTRAINED, OR COERCED ITS EMPLOYEES
BY THE ACTIONS OF ITS SUPERVISOR IN INSERTING IN AN APPRAISAL FORM OF
EMPLOYEE JOSEPH GORGANE THE REMARK "ACTIVE IN THE UNION." THERE WAS NO
SUCH CHARGE IN THE COMPLAINT IN THIS CASE NOR DID THE EVIDENCE
SUBSTANTIATE THAT THE ALLEGED THREATS IN THE COMPLAINT WERE MADE.
THE APPLICABILITY OF THE DECISION IS DIFFERENTIATED ON A FACTUAL
BASIS. ALSO PERSUASIVE, IS THE FACT THAT THE PROMOTION CERTIFICATE
REGISTER IN APRIL 1973 WAS SUBMITTED AND SHOWS MRS. CASPER LISTED
THEREON AS ELIGIBLE FOR PROMOTION WITHOUT ANY NOTATIONS, /3/ AND SHE WAS
PROMOTED IN JULY 1973 WHEN HER PRODUCTION INCREASED. THE CERTIFICATE
BEARS THE SIGNATURE OF HENRY DUCHEMIN, JR., WHOM MRS. CASPER TESTIFIED
WAS CHIEF OF THE MICROFILM SECTION WHERE SHE EXPRESSED A DESIRE TO
TRANSFER.
IN VIEW OF THE FOREGOING AND THE ENTIRE RECORD, I CONCLUDE THAT THE
COMPLAINANT HAS NOT SUSTAINED ITS BURDEN OF PROVING BY A PREPONDERANCE
OF THE EVIDENCE THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2) AND
(4) OF THE ORDER AND WILL RECOMMEND THAT THE VIOLATIONS ALLEGED IN PART
A OF THE COMPLAINT BE DISMISSED.
SUSAN HIGGENBOTHAM WAS EMPLOYED AS A TAX EXAMINER AT THE MEMPHIS
SERVICE CENTER FROM JANUARY 1973 UNTIL THE MONTH OF JUNE 1973. THE
SERVICE CENTER HAS MANY EMPLOYEES AND EVERY YEAR THE WORK LOAD PEAKS AND
FALLS BECAUSE OF THE TAX FILING SEASON. BECAUSE OF THE SEASONAL NATURE
OF THE WORK LOAD THERE IS A FURLOUGH PROCEDURE UTILIZED AFTER THE TAX
FILING SEASON. UNDER THE PROCEDURE ALL OF THOSE WHO VOLUNTARILY
REQUESTED TO BE RELIEVED FROM DUTY WERE PERMITTED TO LEAVE AND THE
REMAINDER WERE EVALUATED ON THE BASIS OF QUANTITY AND QUALITY OF WORK
AND DEPENDABILITY; THESE ESTABLISHED STANDARDS WERE INCORPORATED IN
ARTICLE 26 OF THE MULTI-CENTER AGREEMENT EXECUTED APRIL 13, 1973; THE
AGREEMENT, HOWEVER, DID NOT BECOME EFFECTIVE UNTIL JULY 1, 1973. THOSE
EMPLOYEES NOT EXPECTED TO REMAIN DURING THE SUMMER OR UNTIL THEIR NEXT
RECALL WERE ENCOURAGED TO FURLOUGH THEMSELVES SO THAT THOSE DESIRING
PERMANENT WORK WOULD NOT BE DEPRIVED OF EMPLOYMENT. THEY HAD BEEN
INFORMED THAT THEY COULD FURLOUGH THEMSELVES ON MAY 9, 1973, BUT THOSE
WHO DID NOT DO SO WOULD BE EXPECTED TO REMAIN 1973, BUT THOSE WHO DID
NOT DO SO WOULD BE EXPECTED TO REMAIN UNTIL AUGUST 1973.
NORMA DENNIS, A UNIT MANAGER AND SUPERVISOR AT THE CENTER TESTIFIED
THAT SHE HAD HEARD RUMORS THAT SUSAN HIGGENBOTHAM INTENDED TO GET A
DOCTOR'S CERTIFICATE AND FURLOUGH HERSELF AND SHE WANTED TO VERIFY
WHETHER OR NOT THIS WAS SO. ON MAY 1, 1973, SHE ASKED SUSAN TO
ACCOMPANY HER TO A BREAK ROOM AND SHE ALSO CALLED BETTY SHANLY, A SENIOR
TAX EXAMINER TO ACCOMPANY HER AS A WITNESS. MRS. HIGGENBOTHAM TESTIFIED
IN RESPONSE TO AN INQUIRY BY MISS DENNIS AS TO HER FURLOUGH PLANS THAT:
"I PLANNED TO WORK TO AUGUST, BUT I DIDN'T KNOW FOR SURE WHAT WOULD
OCCUR BETWEEN NOW AND
AUGUST. YOU KNOW, I HAVE CHILDREN. IF MY BABYSITTER QUIT AND I
COULDN'T FIND ANOTHER ONE I
WOULD HAVE TO FURLOUGH AND SHE TOLD ME THAT IF I FURLOUGHED MYSELF
AFTER MAY 9 AND BEFORE
AUGUST IT WOULD BE HELD AGAINST ME AS FAR AS MY EVALUATION WENT. AND
I ASKED HER-- I THOUGHT
THAT, YOU KNOW, I THOUGHT THAT WE WERE EVALUATED ON PRODUCTION BASIS,
AND SHE SAID YES, BUT
THERE ARE OTHER THINGS THAT THEY CAN EVALUATE YOU ON LIKE
DEPENDABILITY AND OTHER THINGS LIKE
THAT OUTSIDE OF THE PRODUCTION."
MRS. DENNIS STATED THAT SUSAN DENIED THE RUMOR CONCERNING THE
FURLOUGH BUT ADMITTED THAT SHE WAS HAVING BABYSITTING PROBLEMS AND
WANTED TO DISCUSS WITH HER HUSBAND AS TO WHETHER HE WANTED HER TO TAKE A
FURLOUGH AND SHE WOULD LET ME KNOW THE FOLLOWING DAY. SUSAN ALSO
MENTIONED HAVING BEEN TO THE UNION AND THAT IF SHE DID FURLOUGH HERSELF
THERE WAS NOTHING WE COULD DO ABOUT IT. I TOLD HER THAT GOING TO THE
UNION WAS HER BUSINESS AND I HAD NO COMMENT ABOUT IT' SHE ASKED ME HOW
IT WOULD AFFECT HER EVALUATION AND I TOLD HER IT WOJLDN'T AND THAT WAS
IT ON EVALUATIONS. WHEN I FINISHED TALKING TO SUSAN, BETTY SHANLY THEN
STARTED TALKING TO HER BUT I CAN'T RELATE THEIR CONVERSATION BECAUSE
WHEN I HEARD THE WORD NAIRE I CUT IT OFF; THEY PROCEEDED TO TALK ABOUT
EVALUATIONS AND I CHOSE NOT TO COMMENT.
WHILE MRS. HIGGENBOTHAM HAD INDICATED SHE DID NOT INTEND TO FURLOUGH
HERSELF SHE LATER DID SO WHEN SHE WAS UNABLE TO REPLACE HER BABY SITTER
AND SUBSEQUENTLY WAS ASKED TO RETURN TO WORK FOR THE CURRENT TAX FILING
SEASON.
BETTY SHANLY STATED THAT SHE WAS A SENIOR TAX EXAMINER IN MAY 1973
AND HAD WORKED FOR THE IRS CENTER FOR EIGHT YEARS; THAT MRS. DENNIS
ASKED HER TO ATTEND AND BE A WITNESS AT THE MAY 1, 1973 MEETING WITH
SUSAN HIGGENBOTHAM CONCERNING SUSAN'S FURLOUGH PLANS FOR THE SUMMER;
AFTER THE THREE-WAY CONVERSATION WAS OVER, IT WAS JUST SUSAN AND I, AND
I TOLD HER I WOULD NOT GO TO THE UNION OR WHATEVER WITH PETTY THINGS
BECAUSE ALL IT DOES IS IRRITATE MANAGEMENT AND SHE SAID, "WELL, WHAT CAN
THEY DO ABOUT IT?" ON CROSS-EXAMINATION SHANLY TESTIFIED AS FOLLOWS:
"Q. . . . AT ANYTIME DURING THE CONVERSATION DID NORMA DENNIS TELL
SUSAN IF SHE FURLOUGHED
HERSELF SHE WOULD GET A BAD EVALUATION.
"A. NO.
"Q. . . . DID NORMA TELL SUSAN THAT IF SUSAN FURLOUGHED HERSELF THERE
WOULDN'T BE ANY
CONSEQUENCES?
"A. AS FAR AS I KNOW, SHE DID LIKE I SAID, THIS HAPPENED A LONG TIME
AGO AND IT WAS HARD
TO RECALL YOU KNOW, EVERYTHING THAT WAS SAID.
"Q. OKAY, WHEN YOU MADE THE STATEMENT TO SUSAN HIGGENBOTHAM
REGARDING WHERE YOU STATED THE
FACT THAT SHE SHOULDN'T GO THE UNION WITH PETTY THINGS, YOU TESTIFIED
THAT NORMA DENNIS WAS
NOT PRESENT, IS THAT CORRECT?
"A. YES.
"Q. YOU WERE WALKING BACK TO YOUR UNIT, YOU TESTIFIED.
"A. YES.
"Q. HAD YOU SAID ANYTHING IN NORMA DENNIS' PRESENCE WITH REGARD TO
WHETHER OR NOT SUSAN
SHOULD GO TO THE UNION?
"A. NOT THAT I RECALL. I ONLY RECALL MAKING ONE STATEMENT AT THE
MEETING. I WAS A
WITNESS AND I SHOULDN'T HAVE MADE A STATEMENT AT ALL. THE ONLY THING
I RECALL SAYING WAS THAT
IF SHE WAS GOING TO FURLOUGH HERSELF VERY SHORTLY THAT PERHAPS THERE
WERE OTHER PEOPLE THAT
NEEDED TO WORK BADLY THAT WOULD HAVE BEEN FURLOUGHED AND IT WAS
SOMETHING TO THINK ABOUT.
"Q. THAT'S ALL YOU SAID WHILE THE THREE OF YOU WERE TOGETHER?
"A. THAT'S THE ONLY THING THAT I RECALL THAT I SAID.
"Q. OKAY. ARE YOU A MEMBER OF THE UNION?
"A. YES, I AM."
SHE TESTIFIED THAT SHE WAS PRESENTLY ON DUES AND IT WAS STIPULATED
THAT SUPERVISORS WERE NOT ENTITLED TO DUES WITH HOLIDAYS, THAT HER
CONVERSATION WITH SUSAN WAS AS A FRIEND AND NOT AS HER SENIOR AND NO
MEMBER OF MANAGEMENT HAD EVER TOLD HER TO SAY ANY OF THE THINGS
MENTIONED TO SUSAN NOR DID SHE OBSERVE OR RECALL NORMA NODDING HER HEAD
OR SAYING THAT'S RIGHT TO ANYTHING SHE HAD SAID.
THE COMPLAINANT URGES THAT SECTION 1(A) OF THE ORDER /4/ GRANTS EACH
EMPLOYEE OF THE FEDERAL GOVERNMENT THE UNFETTERED RIGHT TO FREELY ENGAGE
IN UNION ACTIVITY /5/ AND THAT SECTION 10(E) GRANTS AN EMPLOYEE THE
RIGHT TO HAVE THE EXCLUSIVE REPRESENTATIVE REPRESENT HIS INTERESTS. THE
CONSEQUENCES OF MRS. SHANLY'S STATEMENT INFRINGED UPON HER PROTECTED
RIGHTS.
THE COMPLAINT CHARGED THAT MRS. HIGGENBOTHAM WAS TOLD SHE WOULD
RECEIVE A POOR EVALUATION IF SHE VOLUNTARILY FURLOUGHED HERSELF AND
WOULD CONTINUE TO RECEIVE POOR EVALUATIONS IF SHE WENT TO THE UNION AND
GRIEVED.
I FIND THAT THE REMARK WAS NOT MADE DURING THE MAY 1, 1973 SESSION
BETWEEN MRS. DENNIS, SHANLY AND HIGGENBOTHAM WHEREIN MRS. DENNIS SOUGHT
TO ASCERTAIN WHETHER HIGGENBOTHAM PLANNED TO FURLOUGH HERSELF DURING THE
SUMMER MONTHS AND AFTER THE MAY 9 FURLOUGH PROCEDURE DATE; RATHER IT
WAS MRS. SHANLY WHO MADE THE REMARK TO MRS. HIGGENBOTHAM NOT TO TAKE
PETTY MATTERS TO THE UNION AFTER THE MEETING HAD ENDED AND THE TWO WERE
RETURNING TO THEIR DESKS. IT DOES NOT APPEAR FROM THE RECORD THAT
COMPLAINANT CONTENDS THAT SHANLY WAS A SUPERVISOR, AND EVEN IF SO, I
FIND THE EVIDENCE TO THE CONTRA. /6/
MRS. SHANLY AS A RANKING SENIOR TAX EXAMINER IN THE UNIT WOULD APPEAR
TO BE THE PERSON WHO WOULD BE EXPECTED TO WITNESS A MEETING OF THIS TYPE
AND HER UNION MEMBERSHIP HAD NOT AFFECTED HER SELECTION; SHE TESTIFIED
IN A FRANK AND FORTHRIGHT MANNER AND I CREDIT HER TESTIMONY AS
SUPPORTING THAT OF NORMA DENNIS AS TO WHAT TRANSPIRED AT AND AFTER THE
MAY 1 MEETING. MRS. HIGGENBOTHAM WAS OBVIOUSLY CONFUSED AS TO THE
SEQUENCE OF EVENTS, WITH WHOM THEY OCCURRED AND THE CONTENT OF WHAT
TRANSPIRED; HER MANNER, DEMEANOR, AND TESTIMONY DID NOT IMPRESS ME THAT
HER ACCOUNT OF WHAT TRANSPIRED WAS A COMPLETE AND ACCURATE ASSESSMENT OF
THE FACTS AND CIRCUMSTANCES THAT OCCURRED. I DISCREDIT HER TESTIMONY AS
TO THE REMARKS ATTRIBUTED TO MRS. DENNIS.
SECTION 10(E) OF THE ORDER CONFERS A RIGHT ON THE EXCLUSIVE
BARGAINING REPRESENTATIVE TO BE PRESENT AT FORMAL DISCUSSIONS REGARDING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES OR MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES, AND A CONCOMITANT RIGHT FLOW TO
EMPLOYEES IN THE UNIT. SEE U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION
MOTOR POOL, FORT WAINRIGHT, ALASKA A/SLMR NO. 279. THE RIGHT IS THUS
RESTRICTED SO AS NOT TO EXIST WITH RESPECT TO FORMAL MEETINGS OR
SESSIONS BETWEEN AN EMPLOYEE AND A SUPERVISOR. IN THE RECENT CASE OF
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD,
A/SLMR NO. 336, "COUNSELLING" SESSIONS TOOK PLACE WITH AN EMPLOYEE TO
DISCUSS HIS USE OF ABUSIVE LANGUAGE AS WELL AS HIS FAILURE, TO FOLLOW A
UNIFORM REQUIREMENT ON THE JOB. THE ASSISTANT SECRETARY CONCLUDED THESE
WERE DISCUSSIONS CONCERNING AN EMPLOYEE'S SHORTCOMINGS AND WERE PECULIAR
TO THAT INDIVIDUAL. AS SUCH, THOSE SESSIONS DID NOT PERTAIN TO GENERAL
WORKING CONDITIONS AND WERE NOT DEEMED TO BE FORMAL IN NATURE. HENCE,
NO VIOLATION OF SECTION 19(A)(1) WAS FOUND BY VIRTUE OF A DENIAL OF
REPRESENTATION THEREAT.
IN THE CASE AT BAR THE DISCUSSION BETWEEN HIGGENBOTHAM AND DENNIS AND
SHANLY ON MAY 1, 1973, INVOLVED THE MATTER OF ASCERTAINING WHETHER
HIGGENBOTHAM AS A SEASONAL EMPLOYEE EXPECTED TO UTILIZE THE FURLOUGH
PROCEDURE AT THE CENTER FOR THE SUMMER MONTHS. INFORMATION WAS VITAL TO
DETERMINE THE NUMBER OF EMPLOYEES THAT WOULD BE FURLOUGHED. IT IS
APPARENT THAT THE SESSION WAS NEVER INTENDED TO BE FORMAL BUT DESIGNED
TO OBTAIN INFORMATION NECESSARY TO EFFECT ESTABLISHED PERSONNEL FURLOUGH
PROCEDURE NOW INCORPORATED IN ARTICLE 26 OF THE COLLECTIVELY BARGAINING
AGREEMENT. THERE WAS NO PUNISHMENT SHOWN TO HAVE BEEN INTENDED AND THE
PURPOSE OF THE MEETING WAS TO OBTAIN NECESSARY INFORMATION FOR
COORDINATING ESTABLISHED FURLOUGH PROCEDURE. TO THIS EXTENT I FIND THE
DISCUSSION WAS SIMILAR TO THE COUNSELLING SESSION CALLED IN TEXAS AIR
NATIONAL GUARD CASE, SUPRA. I CONCLUDE THAT THE MEETING AND DISCUSSION
ON MAY 1, 1973, WAS INFORMAL IN NATURE AND A DENIAL OF REPRESENTATION
THEREAT EVEN HAD SUCH BEEN REQUESTED, WOULD NOT SUSTAIN A VIOLATION OF
SECTION 19(A)(1) BASED ON SECTION 10(E) OF THE ORDER. I FURTHER
CONCLUDE THAT MRS. SHANLY WAS NOT AN AGENT OF MANAGEMENT AND THE REMARKS
THAT SHE MADE TO MRS. HIGGENBOTHAM CONCERNING CARRYING PETTY GRIEVANCES
TO THE UNION AFTER MRS. DENNIS TERMINATED THE MAY 1 DISCUSSION WAS AN
EXPRESSION OF OPINION BETWEEN RANK AND FILE EMPLOYEES AND IN NO WAY WERE
THEY SOUGHT OR SANCTIONED BY AGENCY MANAGEMENT.
THE COMPLAINANT HAS ALSO ALLEGED THAT SECTION 19(A)(2) OF THE ORDER
PROVIDING THAT AGENCY MANAGEMENT SHALL NOT
"ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO
HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT,"
WAS VIOLATED IN THAT MRS. HIGGENBOTHAM WAS HELD UP TO RIDICULE AND
HARRASSED BECAUSE OF HER UNION ACTIVITY.
ASSUMING ARGUENDO THAT MRS. DENNIS TOLD MRS. HIGGENBOTHAM THAT HER
EVALUATION WOULD NOT BE BASED ONLY ON PRODUCTION BUT OTHER FACTORS
INCLUDING DEPENDABILITY AS CLAIMED THIS WOULD NOT CONSTITUTE A VIOLATION
OF SECTION 19(A)(2). QUANTITY, QUALITY AND DEPENDABILITY WERE ALL
ESTABLISHED ELEMENTS OF EVALUATION FOR CONSIDERATION REGARDING EMPLOYEES
SUBJECT TO FURLOUGH; THESE ELEMENTS HAD BEEN INCORPORATED IN THE
COLLECTIVE BARGAINING AGREEMENT ON APRIL 13, 1973, BUT THE EFFECTIVE
DATE OF THE AGREEMENT WAS SET FOR JULY 1; NEVERTHELESS, THESE ELEMENTS
HAD BEEN UTILIZED EVEN BEFORE SIGNING OF THE AGREEMENT AND IT IS NOT A
THREAT TO DIVULGE CORRECT INFORMATION. I DO NOT FIND THAT HIGGENBOTHAM
WAS MISLED OR THREATENED AT THE MAY 1, 1973 DISCUSSION REGARDING REMARKS
MADE RELATING TO EVALUATION.
THE COMPLAINANT AT THE HEARING, SOUGHT TO PICTURE ONE OCCASION WHEN
HIGGENBOTHAM HAD FILED A GRIEVANCE TO ESTABLISH THE ATTITUDE OF
EMPLOYEES REGARDING THE FILING OF GRIEVANCES AND SHOW THAT SUPERVISOR
DENNIS AND SENIOR SHANLY WERE RESPONSIBLE FOR SPREADING A FALSE RUMOR
THAT THE GRIEVANCE HAD BEEN FILED ON BEHALF OF ALL EMPLOYEES. THE
INCIDENT HAD NO RELATIONSHIP TO THE MAY 1, 1973 MEETING; IT WAS
ADMITTED INTO EVIDENCE AS BACKGROUND INFORMATION; HIGGENBOTHAM WAS AT A
MEETING HELD AFTER THE GRIEVANCE INCIDENT AND WAS THE ONLY PERSON WHO
COMPLAINED; TO ATTRIBUTE THE REACTION SHE RECEIVED FOLLOWING THE
INCIDENT TO SUPERVISOR DENNIS AND SHANLEY, WAS MOST SPECULATIVE AND
UNWARRANTED. IN ANY EVENT IT IS NOT SHOWN TO BE MATERIAL OR RELEVANT TO
THE ALLEGED VIOLATION IN THE COMPLAINT. OTHER INCIDENTS MENTIONED ARE,
LIKEWISE TO BE WITHOUT MERIT. BACKGROUND INFORMATION IS NOT A
SUBSTITUTE FOR PROOF OF AN UNFAIR LABOR PRACTICE CHARGE AND THE INSTANT
CASE THE PURPOSE FOR WHICH IT WAS ADMITTED WAS NOT SUBSTANTIATED NOR WAS
THE ALLEGED VIOLATION OF SECTION 19(A)(2) ESTABLISHED. I CONCLUDE THAT
THE RESPONDENT DID NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT.
IT IS ALSO CONTENDED THAT SUPERVISOR DENNIS' ACTION IN INFORMING THE
UNIT THAT MRS. HIGGENBOTHAM FILED AN UNFAIR LABOR PRACTICE CHARGE,
RESULTED IN HER BEING HELD UP TO SCORN, THUS VIOLATING SECTION 19(A)(2)
AND (4) OF THE ORDER. THE ALLEGATION IN THE FIRST PLACE IS AN
OVERSTATEMENT OF THE FACTS. ON CROSS-EXAMINATION MRS. DENNIS TESTIFIED:
"Q. DID YOU DISCUSS WITH ANYONE THE FACT THAT SUSAN HIGGENBOTHAM HAD
FILED AN UNFAIR LABOR
PRACTICE?
"A. YES.
"Q. DO YOU RECALL IF YOU SPOKE TO-- DID YOU TELL THIS TO OTHER
EMPLOYEES IN YOUR UNIT?
"A. YES, I MENTIONED IT.
"Q. DID YOU TELL IT TO BETTY SHANLY?
"A. YES, I DID.
NO EMPLOYEE OTHER THAN SHANLY WAS IDENTIFIED OR MENTIONED AS TO
HAVING BEEN TOLD OF THE UNFAIR LABOR PRACTICE COMPLAINT. MRS. DENNIS
DENIED MENTIONING ANYTHING ABOUT THE GRIEVANCE THAT HIGGENBOTHAM HAD
PREVIOUSLY FILED ABOUT THE TELEPHONE INCIDENT. IT IS EVIDENT THAT THE
COMPLAINANT SOUGHT TO SUBSTITUTE INCIDENTS ADMITTED FOR BACKGROUND
INFORMATION FOR PROOF OF THE ALLEGATIONS MADE IN ITS COMPLAINT. THE
BACKGROUND INFORMATION WAS NOT DOCUMENTARY AND IN MANY INSTANCES
AMOUNTED TO EXPRESSIONS OF OPINION AND HEARSAY. I FIND THAT THE
COMPLAINANT HAS NOT SUSTAINED ITS BURDEN OF PROOF AND CONCLUDE THAT
THERE WAS NO VIOLATION OF SECTION 19(A)(2) OF THE ORDER NOR DID THE
RESPONDENT DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE SHE FILED A COMPLAINT OR GAVE TESTIMONY UNDER THE ORDER IN
VIOLATION OF SECTION 19(A)(4) OF THE ORDER.
KATHY CASON, A PROBATIONARY EMPLOYEE AT THE IRS MEMPHIS SERVICE
CENTER, FILED A GRIEVANCE AGAINST THE RESPONDENT ON APRIL 26, 1973,
ALLEGING THAT A WRITTEN REPRIMAND HAD BEEN PLACED IN HER PERSONNEL
FOLDER THAT PRECEEDING DAY WHICH CONCERNED HER WORKING ABILITY AND SHE
REQUESTED THAT IT BE WITHDRAWN BECAUSE OF ITS UNFAIRNESS. ACCORDING TO
THE GRIEVANCE /7/ REFERENCE WAS MADE TO A WRITTEN REPRIMAND BUT AT THE
HEARING IT WAS URGED THAT SHE ALLEGEDLY HAD BEEN ORALLY INFORMED THAT
HER SERVICES WOULD BE TERMINATED IN TWO WEEKS UNLESS HER PERFORMANCE
IMPROVED. SHE NAMED ANDREW PCHOLA AND FRED D'ORAZIO AS HER NAIRE
REPRESENTATIVES. THE INFORMAL GRIEVANCE RECORD REPORT /8/ DATED MAY 17,
1973, SHOWS THAT THE SUPERVISOR'S DETERMINATION WAS THAT THE MATTER WAS
NOT GRIEVABLE SINCE NO WRITTEN REPRIMAND HAD BEEN PLACED IN KATHY A.
CASON'S FOLDER. MR. PCHOLA WAS ADVISED ON JUNE 12, 1973, THAT THE
MEMORANDUM OF DISCUSSION BETWEEN CASON AND HER SUPERVISOR BETTY MILLER
WOULD NOT BE PURSUED TO COMPLETION BECAUSE SHE WAS NO LONGER AN EMPLOYEE
OF THE SERVICE.
THE UNFAIR LABOR PRACTICE COMPLAINT FILED BY COMPLAINANT UNION,
CHARGES THAT WHILE THE GRIEVANCE WAS PENDING ON MAY 10, 1973, SUPERVISOR
BETTY MILLER MET WITH KATHY CASON AND INFORMED HER THAT SHE HAD ONE WEEK
WITHIN WHICH TO RESIGN OR HER SERVICES WOULD BE TERMINATED. IT IS
STATED THAT MISS CASON WAS WITHOUT REPRESENTATION WHEN CONFRONTED BY HER
SUPERVISOR CONCERNING THE SUBJECT MATTER OF A PENDING GRIEVANCE.
NEITHER THE AGENCY SUPERVISOR BETTY MILLER OR EMPLOYEE KATHY CASON
TESTIFIED AT THE HEARING.
BARRY L. PARR, LABOR RELATIONS SPECIALIST FOR THE RESPONDENT WAS
CALLED BY COMPLAINANT AS A WITNESS AND TESTIFIED THAT BETTY MILLER
REMINDED HIM ON MAY 10, 1973, THAT IT HAD BEEN TWO WEEKS SINCE THE PRIOR
COUNSELING SESSION CONCERNING MISS CASON'S WORK PERFORMANCE AND IT WAS
TIME TO TALK TO HER AGAIN SINCE HER PERFORMANCE HAD NOT IMPROVED. SHE
ASKED ME WHAT TO TALK ABOUT AND I TOLD HER TO TALK ABOUT PRODUCTION, TO
EXPLAIN TO HER WHAT SHE HAD DONE WRONG AND ANSWER ANY QUESTIONS; SHE
ASKED WHETHER A UNION REPRESENTATIVE SHOULD BE PRESENT AND I RESPONDED
NO, HE SHOULD NOT; THE REASON GIVEN FOR NOT HAVING A REPRESENTATIVE WAS
THAT IT PERTAINED TO ACTIONS THAT HAD HAPPENED SUBSEQUENT TO THE FILING
OF THE GRIEVANCE AND A MEETING TO DISCUSS TERMINATION OR RESIGNATION OF
A PROBATIONARY EMPLOYEE WAS CONSIDERED A COUNSELING SESSION. MR. PARR
ALSO TESTIFIED ON CROSS-EXAMINATION THAT A MEETING TO DISCUSS THE
TERMINATION OF A PROBATIONARY EMPLOYEE WAS NOT CONSIDERED A DISCIPLINARY
OR ADVERSE ACTION NOR WAS THE TERMINATION OF A PROBATIONARY GRIEVANT ONE
OF THE AGENCY GRIEVANCE PROCEDURES. ALSO, HE TESTIFIED THAT HE DID NOT
ATTEND ANY MEETING ON MAY 10, 1973, CONCERNING KATHY CASON.
ANDREW PCHOLA TESTIFIED THAT KATHY CASON HAD INFORMED HIM OF WHAT
TRANSPIRED AT A MEETING ON MAY 10, 1973, AND THAT BARRY PARR HAD ALSO
STATED WHAT HAD HAPPENED. ON DIRECT EXAMINATION MR. PCHOLA WAS QUITE
POSITIVE IN HIS TESTIMONY BUT AFTER LENGTHY CROSS-EXAMINATION ADMITTED
THAT BARRY PARR HAD TOLD HIM HE WAS NOT AT THE MEETING AND THAT THE
SUBJECT MATTER AT THE MAY 10 MEETING RELATED TO PRACTICES OCCURRING
AFTER THE FILING OF THE GRIEVANCE AND NONE WHICH WAS THE SUBJECT OF THE
GRIEVANCE; HE WAS NOT SURE WHETHER HE HAD INITIALLY GOTTEN INFORMATION
FROM MR. PARR CONCERNING THE MEETING OVER THE PHONE ON MAY 10, 1973, OR
BY TALKING TO HIM LATER IN HIS OFFICE, BUT HE BELIEVED HE HAD TALKED TO
HIM ON MAY 10. PCHOLA ADMITTED BEING PRESENT AT EACH STEP CONCERNING
KATHY CASON'S GRIEVANCE ACTION, SPECIFICALLY ON MAY 15 AND 29, AND JUNE
7, 1973; FOLLOWING EACH MEETING HE RECEIVED AN ANSWER FROM THE AGENCY
AS TO THE CONTENT AND RESULTS OF EACH MEETING.
THE COMPLAINANT MAINTAINS THAT A MEETING WAS HELD ON MAY 10, 1973,
WHICH CONCERNED THE SAME ISSUES THAT WERE PRESENT IN THE GRIEVANCE IN
WHICH D'ORAZIO AND PCHOLA WERE DESIGNATED AS REPRESENTATIVES OF KATHY
CASON AND SINCE THEY WERE NOT PRESENT AT THE SCHEDULED MEETING ON MAY
10, THIS VIOLATED SECTIONS 13(A) AND 10(E) OF THE EXECUTIVE ORDER
REGARDLESS OF WHETHER CASON HAD REQUESTED A MEETING IN HER GRIEVANCE.
IT IS NOT DEEMED NECESSARY TO PASS ON THIS CONTENTION BECAUSE I DO NOT
FIND THE COMPLAINANT ESTABLISHED BY ANY SUBSTANTIAL EVIDENCE THAT THERE
WAS IN FACT A MEETING HELD ON MAY 10, 1973, AT WHICH THE GRIEVANCE FILED
BY KATHY CASON WAS A SUBJECT OF DISCUSSION.
THE RESPONDENT MOVED TO DISMISS THE COMPLAINT AT CLOSE OF
COMPLAINANT'S PROOF ON THE BASIS: (1) THE COMPLAINANT FAILED TO
ESTABLISH ITS CASE BY A PREPONDERANCE OF THE EVIDENCE; (2) THE RECORD
IS DEVOID OF PROBATIVE AND EVEN A SCINTILLA OF SUBSTANTIVE EVIDENCE TO
SUPPORT THE CHARGE RELATING TO PART C OF THE COMPLAINT; (3) SINCE THE
EVIDENCE IS ENTIRELY HEARSAY THE RESPONDENT IS DENIED THE RIGHT TO
CROSS-EXAMINE THE WITNESSES RESPONSIBLE FOR CHARGING IT WITH HAVING
VIOLATED THE ORDER; (4) THE MEETING SCHEDULED FOR MAY 10 WAS NOT A
FORMAL ONE UNDER SECTION 10(E) OF THE ORDER BUT A COUNSELING SESSION
WITH THE PURVIEW OF DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS
AIR NATIONAL GUARD, A/SLMR, NO. 336, (5) THE MEETING WAS NOT AN ADVERSE
ACTION TYPE AS CONTENDED BY THE UNION ENTITLING IT TO BE PRESENT BUT WAS
IN FACT A SCHEDULED MEETING CONCERNING THE TERMINATION OF A PROBATIONARY
EMPLOYEE AND CIVIL SERVICE AND AGENCY REGULATIONS HAVE NEVER AFFORDED
SUCH RIGHTS.
THE ARGUMENT IS MADE BY COMPLAINANT THAT BECAUSE KATHY CASON WAS NOT
ACTUALLY TERMINATED FROM HER EMPLOYMENT AS AN PROBATIONARY EMPLOYEE THE
ACTION HEREIN WAS NOT A SEPARATION PROCEDURE.
5 CFR 752.103(A)(5) WHICH IS INCORPORATED IN THE FEDERAL PERSONNEL
MANUAL PROVIDES THAT AN EMPLOYEE CURRENTLY SERVING A PROBATION PERIOD IS
EXCLUDED FROM APPLICABILITY AS TO PART 752 CONCERNING ADVERSE ACTIONS BY
GOVERNMENT AGENCIES.
I FIND: (1) THAT ON APRIL 26, 1973, THAT KATHY CASON WAS NOTIFIED
THAT HER PERFORMANCE WAS NOT SATISFACTORY AND THAT SHE WOULD BE
TERMINATED AT THE EXPIRATION OF HER PROBATIONARY PERIOD UNLESS HER
PERFORMANCE IMPROVED; (2) THAT THIS WARNING WAS THE COMMENCEMENT OF HER
SEPARATION PROCEDURE FOR TERMINATION OF HER PROBATIONARY EMPLOYMENT;
(3) THE MEETING SCHEDULED ON MAY 10, 1973, RELATED TO A FOLLOW-UP ON THE
PROCEDURE COMMENCED APRIL 26, 1973, REGARDING CIRCUMSTANCES AS TO HER
PERFORMANCE SUBSEQUENT TO THAT DATE; (4) CASON WAS A PROBATIONARY
EMPLOYEE WHOSE IMPENDING SEPARATION WAS NOT AN ADVERSE ACTION WITHIN THE
PURVIEW OF 5 CFR 752.103(A)(5); NO ONE WHO ATTENDED THE MAY 10, 1973
MEETING TESTIFIED AT THE HEARING IN FEBRUARY 1974 AND APART FROM
HEARSAY, THERE WAS NO SUBSTANTIAL EVIDENCE PRESENTED FOR CONSIDERATION;
AND (6) BETTY MILLER WHO WAS CASON'S SUPERVISOR, WAS NOT SHOWN TO BE
UNAVAILABLE TO COMPLAINANT AS A WITNESS TO TESTIFY AS TO WHETHER IN FACT
THERE WAS A MEETING ON MAY 10, 1973, AND IF SO, WHAT TRANSPIRED AT SUCH
MEETING.
ASSUMING ARGUENDO THAT A MEETING WAS HELD ON MAY 10, 1973, AS
ALLEGED, THERE IS NOT A SCINTILLA OF SUBSTANTIAL EVIDENCE AS TO WHAT
TRANSPIRED THEREAT OR THAT IT WAS A MATTER RELATING TO THE GRIEVANCE
WHICH HAD BEEN FILED. ONLY TWO WITNESSES, ANDREW PCHOLA, LOCAL UNION
098 PRESIDENT AND REPRESENTATIVE, AND BARRY PARR, LABOR RELATIONS
SPECIALIST, TESTIFIED AND NEITHER HAD ATTENDED A MEETING ON MAY 10,
1973, CONCERNING KATHY CASON.
THE ASSISTANT SECRETARY IS NOT BOUND BY CASES DECIDED IN THE PRIVATE
SECTOR; SUCH MAY BE CONSIDERED AS GUIDELINES WHEN NOT IN CONFLICT WITH
THE ORDER AND REGULATIONS. FROM THE EVIDENCE PRESENTED IN THE INSTANT
CASE, I CONCLUDE AS A MATTER OF LAW THAT THERE MUST BE SOME SUBSTANTIAL
EVIDENCE OF RECORD, APART FROM HEARSAY, UPON WHICH TO PREDICATE A
DECISION.
SUPPORTING THE CONCLUSION, I FIND IN CAMERO V. U.S. (1965), 345 F.2D
798, 170 CT.CL. 490, THAT:
"SUBSTANTIAL EVIDENCE TO SUPPORT DISCHARGE OF CLASSIFIED CIVIL
SERVICE EMPLOYEE MUST BE
MORE THAN A SCINTILLA, AND MEANS SUCH RELEVANT EVIDENCE AS A
REASONABLE MIND MIGHT ACCEPT AS
ADEQUATE TO SUPPORT A CONCLUSION, BUT MERE UNCORROBORATED HEARSAY OR
RUMOR DOES NOT CONSTITUTE
SUBSTANTIAL EVIDENCE."
IN WILLIAPOINT OYSTERS V. EWING, C.A. 9, 1949, 174 F.2D 676, CERT.
DENIED 70 S.CT. 101; 338 U.S. 860, 94 L.ED. 527, REHEARING DENIED 70
S.CT. 793, 339 U.S. 945, 94 L.ED. 1360, IT WAS HELD THAT:
"REQUIREMENT OF THIS SECTION THAT ADMINISTRATIVE FINDING ACCORD WITH
SUBSTANTIAL EVIDENCE
DOES NOT FORBID ADMINISTRATIVE UTILIZATION OF PROBATIVE HEARSAY
EVIDENCE ALTHOUGH FINDINGS, TO
BE VALID, CANNOT BE BASED UPON HEARSAY ALONE, OR UPON HEARSAY
CORROBORATED BY MERE
SCINTILLA; AND TEST WHETHER EVIDENCE IS SUBSTANTIAL IS WHETHER THERE
IS SUCH RELEVANT EVIDENCE
AS A REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT A
CONCLUSION."
IN FIRST CITIZENS BANK AND TRUST CO. V. CAMP, D.C. N.C. 1968, 281
F.SUPP. 786, AFFIRMED 409 F.2D. 1086, THE COURT HELD:
"SUBSTANTIAL EVIDENCE IN ADMINISTRATIVE LAW IS EVIDENCE SUFFICIENT TO
JUSTIFY, IF TRIAL
WERE TO A JURY, A REFUSAL TO DIRECT VERDICT WHEN CONCLUSION SOUGHT TO
BE DRAWN FROM IT IS ONE
OF FACT FOR JURY."
I FURTHER CONCLUDE THAT THE RESPONDENT DID NOT REFUSE TO CONSULT,
CONFER OR NEGOTIATE IN GOOD FAITH UNDER SECTION 19(A)(6) OF THE ORDER
NOR DID IT ENGAGE IN CONDUCT VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER
BY INTERFERING WITH, RESTRAINING OR COERCING EMPLOYEES OF THE
COMPLAINANT IN THE EXERCISE OF RIGHTS ASSURED BY THIS ORDER, /9/ NOR DID
IT ENGAGE IN CONDUCT VIOLATIVE OF SECTION 19(A)(2) OF THE ORDER BY
ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT.
BASED ON THE ENTIRE RECORD, I CONCLUDE THAT THE COMPLAINANT HAS NOT
SUSTAINED ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT
THE RESPONDENT VIOLATED SECTIONS 19(A)(1)(2) AND (6) OF THE ORDER.
UPON THE BASIS OF THE FINDINGS, CONCLUSIONS AND THE ENTIRE RECORD
RELATING TO PARTS A, B AND C OF THE COMPLAINT, I RECOMMEND THAT THE
ASSISTANT SECRETARY DISMISS EACH OF THE COMPLAINTS IN THE THREE SEPARATE
UNRELATED CASES AGAINST THE RESPONDENT IN THEIR ENTIRETY. /10/
DATED: MAY 23, 1974
WASHINGTON, D.C.
/1/ INTERNAL REVENUE SERVICE.
/2/ IN A WRITTEN STATEMENT REPORTED TO HAVE BEEN MADE SHORTLY AFTER
THE INCIDENT LINDA REINERSMAN REFERRED TO BEVERLY AS HAVING STATED: "HE
SAID THAT IF SHE FILED A GRIEVANCE THAT HE WOULD PUT SOMETHING IN HER
PERSONNEL FOLDER SO THAT NO OTHER AREA WOULD TAKE HER." (COMPLAINANT
EXHIBIT NO. 3).
/3/ RESPONDENT'S EXHIBIT NO. 9.
/4/ SECTION 1(A) OF THE ORDER PROVIDES THAT:
"EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS
THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A
LABOR ORGANIZATION OR TO
REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED
IN THE EXERCISE OF THIS
RIGHT. . . ."
/5/ WESTERN DIVISION OF NAVAL FACILITIES ENGINEERING COMMAND, SAN
BRUNO, CALIFORNIA, A/SLMR, NO. 264.
/6/ SEE U.S. AIR FORCE, TYNDALL AIR FORCE BASE FLORIDA, A/SLMR, NO.
266, 926TH TACTICAL AIRLIFT GROUP, U.S. AIR FORCE RESERVE, NAVAL AIR
STATION, BELLE CHASSE, LOUISIANA, A/SLMR NO. 221; ARMY AND AIR FORCE
EXCHANGE SERVICE, RICHARDS-GEBOUR CONSOLIDATED EXCHANGE, RICHARDS GEBOUR
AIR FORCE BASE, MISSOURI, A/SLMR NO. 219, U.S. CUSTOMS SERVICE, REGION
IX, CHICAGO, ILLINOIS, A/SLMR, NO. 219; U.S. DEPARTMENT OF INTERIOR,
BUREAU OF RECLAMATION, REGION IX, WEBER BASIN JOB CORPS, CIVILIAN
CONSERVATION CENTER, OGDEN, UTAH, A/SLMR NO. 204.
/7/ COMPLAINANT'S EXHIBIT NO. 6.
/8/ RESPONDENT'S EXHIBIT NO. 7.
/9/ SEE FOOTNOTE 7, SUPRA.
/10/ INCLUDES COMPLAINANT'S MOTION TO DISMISS PART C OF COMPLAINT
MADE AT CLOSE OF ITS PROOF SINCE NO WITNESSES WERE CALLED BY THE
RESPONDENT.
4 A/SLMR 443; P. 708; CASE NO. 71-2691; OCTOBER 22, 1974.
UNITED STATES AIR FORCE,
KINGSLEY FIELD,
KLAMATH FALLS, OREGON
A/SLMR NO. 443
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 704, INDEPENDENT (NFFE)
ALLEGING THAT THE UNITED STATES AIR FORCE, KINGSLEY FIELD (RESPONDENT)
VIOLATED SECTION 19(A)(1) OF THE ORDER BY INSTITUTING, WITHOUT PRIOR
EXPLANATION OR CONSULTATION, A NEW PROCEDURE WHEREBY THE NFFE LOCAL'S
PRESIDENT WAS REQUIRED TO MAINTAIN A PERMANENT LOG OF THE TIME HE WAS
AWAY FROM HIS DUTY STATION ON AUTHORIZED UNION BUSINESS. IT WAS
CONTENDED THAT THE INSTITUTION OF THIS PROCEDURE INTERFERED WITH,
COERCED AND OTHERWISE RESTRAINED THE PRESIDENT IN THE EXERCISE OF RIGHTS
GUARANTEED TO HIM UNDER THE ORDER AND HAD A CHILLING EFFECT UPON OTHER
EMPLOYEES AND MEMBERS OF THE COMPLAINANT IN THEIR EXERCISE OF RIGHTS
GUARANTEED TO THEM UNDER THE ORDER.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. ALTHOUGH CONCLUDING THROUGH CREDIBILITY RESOLUTIONS THAT,
UPON THE IMPLEMENTATION OF THE NEW PROCEDURE, THE PURPOSE OF THE LOG WAS
NOT FULLY EXPLAINED TO THE LOCAL PRESIDENT, THE ADMINISTRATIVE LAW JUDGE
FOUND NO EVIDENCE THAT THE LOCAL PRESIDENT WAS SINGLED OUT FOR THE
LOG-KEEPING ASSIGNMENT IN ORDER TO HARASS HIM BECAUSE OF HIS STATUS OR
ACTIVITY ON BEHALF OF THE COMPLAINANT. IN THIS REGARD, THE
ADMINISTRATIVE LAW JUDGE ACCEPTED THE RESPONDENT'S EXPLANATION THAT THE
PROCEDURE WAS EXPERIMENTAL AND WAS INSTITUTED AS A RESULT OF A
SUGGESTION FOR A BETTER COST ACCOUNTING PROCEDURE. THE ADMINISTRATIVE
LAW JUDGE FOUND, FURTHER, THAT ALTHOUGH THE LOG-KEEPING ASSIGNMENT
REPRESENTED A CHANGE IN THE PRESIDENT'S WORKING CONDITIONS, THE ORDER
DID NOT REQUIRE THE RESPONDENT TO VOLUNTEER AN EXPLANATION IN THE
ABSENCE OF A REQUEST OR SHOWING OF INTEREST BY THE COMPLAINANT.
WHILE ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDINGS PERTAINING TO
THE RESPONDENT'S MOTIVATION IN INSTITUTING THE LOG-KEEPING PROCEDURE AND
THE LACK OF EVIDENCE THAT SUCH CHANGE IN THE PRESIDENT'S WORKING
CONDITIONS WAS MADE TO HARASS HIM BECAUSE OF HIS UNION STATUS, THE
ASSISTANT SECRETARY DISAGREED WITH HIS CONCLUSION THAT THE RESPONDENT'S
CONDUCT HEREIN WAS NOT VIOLATIVE OF THE ORDER. THE ASSISTANT SECRETARY
NOTED THAT NOTWITHSTANDING THE TERMS OF THE PARTIES' NEGOTIATED
AGREEMENT, IN WHICH THE RESPONDENT AGREED TO CONSULT WITH THE
COMPLAINANT PRIOR TO MAKING ANY CHANGES IN PERSONNEL POLICIES, PRACTICES
AND PROCEDURES THAT WERE APPLICABLE TO EMPLOYEES IN THE UNIT, THE
RESPONDENT UNILATERALLY SELECTED THE LOCAL PRESIDENT OF THE EXCLUSIVE
REPRESENTATIVE AND IMPOSED ON HIM A NEW WORKING CONDITION DIFFERENT FROM
THAT GOVERNING OTHER EMPLOYEES. IN HIS VIEW, THE NATURAL AND
FORESEEABLE CONSEQUENCE OF SUCH A POLICY WOULD BE TO REFLECT TO OTHER
UNIT EMPLOYEES A DISPARAGEMENT OF AN OFFICIAL OF THEIR EXCLUSIVE
REPRESENTATIVE AND WOULD TEND TO RESTRAIN BARGAINING UNIT EMPLOYEES FROM
EXERCISING THEIR SECTION 1(A) RIGHTS UNDER THE ORDER. ADDITIONALLY, HE
FOUND THAT THE RESPONDENT'S UNILATERAL CONDUCT HAD THE IMPROPER EFFECT
OF EVIDENCING TO UNIT EMPLOYEES THAT IT COULD ACT UNILATERALLY WITH
RESPECT TO THEIR TERMS AND CONDITIONS OF EMPLOYMENT WITHOUT REGARD TO
THEIR EXCLUSIVE REPRESENTATIVE.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
RESPONDENT'S CONDUCT HEREIN VIOLATED SECTION 19(A)(1) OF THE ORDER AND
HE, THEREFORE, ORDERED THE RESPONDENT TO CEASE AND DESIST FROM SUCH
CONDUCT AND TAKE CERTAIN AFFIRMATIVE ACTIONS.
UNITED STATES AIR FORCE,
KINGSLEY FIELD,
KLAMATH FALLS, OREGON
AND
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 704, INDEPENDENT,
KLAMATH FALLS, OREGON
ON MAY 28, 1974, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR PRACTICE AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. THEREAFTER, THE
COMPLAINANT FILED EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION AND THE RESPONDENT FILED AN ANSWERING
BRIEF.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND THE RESPONDENT'S ANSWERING BRIEF, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE
LAW JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINANT ALLEGES, IN ESSENCE, THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE ORDER BY INSTITUTING, WITHOUT PRIOR EXPLANATION
OR CONSULTATION, A NEW PROCEDURE WHEREBY MR. LAWRENCE E. LEWIS,
PRESIDENT OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL
704, /1/ WAS REQUIRED TO MAINTAIN A PERMANENT LOG OF THE TIME HE WAS
AWAY FROM HIS DUTY STATION ON AUTHORIZED UNION BUSINESS. IT IS
CONTENDED THAT THE INSTITUTION OF THIS PROCEDURE INTERFERED WITH,
COERCED AND OTHERWISE RESTRAINED LEWIS IN THE EXERCISE OF RIGHTS
GUARANTEED TO HIM UNDER THE ORDER AND HAD A CHILLING EFFECT UPON OTHER
EMPLOYEES AND MEMBERS OF THE COMPLAINANT IN THEIR EXERCISE OF RIGHTS
GUARANTEED TO THEM UNDER THE ORDER.
THE ESSENTIAL FACTS ARE NOT IN DISPUTE AND I SHALL REPEAT THEM ONLY
TO THE EXTENT DEEMED NECESSARY.
LEWIS IS AN EMPLOYEE IN THE VEHICLE MAINTENANCE SECTION (VMS) OF THE
RESPONDENT'S DIRECTORATE OF LOGISTICS. AT ALL TIMES MATERIAL HEREIN,
TECHNICAL SERGEANT CHARLES R. SEIFNER WAS LEWIS' IMMEDIATE SUPERVISOR
AND RESPONSIBLE TO CAPTAIN FREDRICK A. LINVILLE, DIRECTOR OF LOGISTICS.
THE ESTABLISHED PROCEDURE FOR ALL EMPLOYEES IN THE VMS WHO DESIRED TO
LEAVE THEIR WORK AREA FOR ANY REASON WAS THAT THEY WOULD CHECK WITH
SEIFNER AND SIGN OUT ON A BLACKBOARD IN SEIFNER'S OFFICE AREA GIVING THE
TIME OUT AND DESTINATION. THE MESSAGE WAS ERASED UPON THE EMPLOYEE'S
RETURN. BLANKET PERMISSION TO LEAVE WAS GRANTED IN THE EVENT SEIFNER
WAS NOT IN THE WORK AREA. THE RECORD REVEALS THAT THE ONLY PURPOSE OF
THE PROCEDURE WAS TO INFORM ANYONE WHO MIGHT BE LOOKING FOR THE EMPLOYEE
INVOLVED OF THE TIME HE LEFT THE WORK AREA AND HIS WHEREABOUTS.
THE DIRECTORATE OF LOGISTICS AND THE CIVIL ENGINEERING DEPARTMENT ARE
THE ONLY COMPONENTS OF THE RESPONDENT TO UTILIZE A MAN-HOUR ACCOUNTING
SYSTEM. THE RECORD REVEALS THAT THE LOG IN QUESTION WAS INSTITUTED IN
THE VMS OF THE DIRECTORATE OF LOGISTICS AS A RESULT OF A SUGGESTION
SUBMITTED TO THE AEROSPACE DEFENSE COMMAND (ADC) BY THE RESPONDENT'S
CIVILIAN PERSONNEL OFFICER (CPO) BASED UPON WHAT HE CONSIDERED TO BE A
DISTORTION IN COST ACCOUNTING FIGURES RESULTING FROM THE THEN EXISTING
SYSTEM OF REPORTING NONPRODUCTIVE TIME SPENT ON AUTHORIZED UNION
ACTIVITIES UNDER TIME CODES ALSO UTILIZED FOR PRODUCTIVE TIME. /2/
SEIFNER FURNISHED LEWIS WITH A LOG SHEET CAPTIONED, "LOG FOR TIME
SPENT ON UNION ACTIVITIES," AND INSTRUCTED HIM TO ENTER THE DATE, HIS
TIME OUT, DESTINATION AND TIME IN WHENEVER HE HANDLED UNION BUSINESS
OUTSIDE OF HIS SECTION. /3/ SEIFNER TESTIFIED THAT HE EXPLAINED THE
PURPOSE OF THE LOG TO LEWIS. LEWIS TESTIFIED THAT HE WAS OFFERED NO
EXPLANATION OTHER THAN THAT IT WAS AN ORDER FROM CAPTAIN LINVILLE, AND
ALTHOUGH HE HAD QUESTIONS REGARDING THE PURPOSE OF THE LOG, HE DID NOT
FEEL IT WISE TO PROTEST AT THAT TIME. THE LOG WAS IN EFFECT FROM APRIL
10 THROUGH MAY 14, 1973. EIGHT ENTRIES IN THE LOG WERE MADE BY LEWIS,
WHICH REQUIRED NO MORE THAN A TOTAL OF 30 MINUTES TO PREPARE, AND THERE
WAS NO CHANGE IN THE BLANKET PERMISSION IN EFFECT IN THE VMS REGARDING
LEWIS' CONDUCT OF UNION BUSINESS.
FOLLOWING CONSULTATION WITH NFFE HEADQUARTERS, LEWIS FILED AN UNFAIR
LABOR PRACTICE CHARGE IN THIS MATTER. CREDITED TESTIMONY REVEALS THAT
LEWIS FIRST LEARNED OF THE PURPOSE OF THE LOG AT A FACTFINDING COMMITTEE
HEARING ON HIS CHARGE UPON WHICH THE INSTANT COMPLAINT IS BASED. THE
FACTFINDING COMMITTEE WAS CONVENED BY THE RESPONDENT AND DETERMINED THAT
LEWIS' RIGHTS UNDER THE ORDER HAD NOT BEEN COMPROMISED.
LEWIS TESTIFIED THAT THE REQUIREMENT THAT HE MAINTAIN A PERMANENT LOG
OF HIS UNION BUSINESS WAS HIGHLY UNNECESSARY AND ANNOYING AND CONTENDED
THAT SUCH ACTION WAS HARASSMENT BY CAPTAIN LINVILLE BECAUSE OF THE
PARTIES' DISAGREEMENT WITH RESPECT TO ANOTHER LABOR-MANAGEMENT MATTER.
FURTHER, LEWIS ASSERTED THAT A MEMBER OF THE COMPLAINANT HAD ASKED HIM
IN JEST WHETHER IT WAS STILL SAFE TO BELONG TO THE UNION, AND THAT
PEOPLE WAITED UNTIL EVENING WHEN HE WAS AT HOME TO APPROACH HIM ABOUT
UNION AFFAIRS RATHER THAN CALL HIM OR SEE HIM ON DUTY. THE RECORD FAILS
TO REVEAL ANY EVIDENCE, APART FROM THE FOREGOING TESTIMONY, THAT
MAINTAINING THE LOG HAD ANY ADVERSE EFFECT ON LEWIS' PERFORMANCE OF HIS
UNION DUTIES. LINVILLE TESTIFIED THAT IN INSTITUTING THE LOG PROCEDURE
HE HAD NO INTENTION OF HARASSING LEWIS AND STATED THAT HE SELECTED LEWIS
BECAUSE HE BELIEVED THAT TIME SPENT ON UNION BUSINESS BY THE PRESIDENT
OF THE COMPLAINANT WOULD BE A SIGNIFICANT PORTION OF THE TOTAL TIME
SPENT ON AUTHORIZED UNION BUSINESS. LINVILLE TESTIFIED FURTHER THAT HE
EXPLAINED FULLY THE PURPOSE OF THE LOG TO SEIFNER AND INSTRUCTED HIM TO
SO INFORM LEWIS. THE CPO TESTIFIED THAT HE DID NOT CONSIDER THE USE OF
THE LOG TO BE A CHANGE IN PERSONNEL POLICY, BUT RATHER IT WAS INTENDED
AS A TEST TO DETERMINE THE FEASIBILITY OF ESTABLISHING ON A PERMANENT
BASIS A COST ACCOUNTING CODE FOR TIME SPENT ON AUTHORIZED UNION
BUSINESS.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT ALTHOUGH SEIFNER DID NOT
FULLY EXPLAIN THE PURPOSE OF THE LOG TO LEWIS, /4/ THERE WAS NO EVIDENCE
THAT THE LATTER WAS SINGLED OUT FOR THE LOG-KEEPING ASSIGNMENT IN ORDER
TO HARASS HIM BECAUSE OF HIS STATUS OR ACTIVITY ON BEHALF OF THE
COMPLAINANT. IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, THE IMPOSITION OF
THE LOGGING REQUIREMENT HAD NEITHER THE PURPOSE NOR THE EFFECT OF
INTERFERING WITH SECTION 1 RIGHTS OF EMPLOYEES. IN THIS REGARD, HE
ACCEPTED THE RESPONDENT'S EXPLANATION THAT THE PROCEDURE WAS
EXPERIMENTAL, DESIGNED TO ELICIT INFORMATION ABOUT THE FEASIBILITY OF
CHANGING THE COST ACCOUNTING SYSTEM, AND LIMITED TO LEWIS BECAUSE HE WAS
THE MOST ACTIVE UNION OFFICIAL IN THE ONLY DEPARTMENT INTERESTED IN
TESTING THE SUGGESTION. IT WAS NOTED THAT LEWIS REMAINED FREE AT ALL
TIMES TO ATTEND TO UNION BUSINESS AND, AS IN THE PAST, HE WAS NEVER
REFUSED PERMISSION TO DO SO. THUS, THE ADMINISTRATIVE LAW JUDGE
REJECTED THE CONTENTION THAT THE REQUIRED USE OF THE LOG INTERFERED WITH
LEWIS' RIGHTS UNDER SECTION 1 OF THE ORDER. THE ADMINISTRATIVE LAW
JUDGE FOUND, FURTHER, THAT ALTHOUGH THE LOG-KEEPING ASSIGNMENT
REPRESENTED A CHANGE IN LEWIS' WORKING CONDITIONS AND CLEARLY MADE HIM
APPREHENSIVE, THE ORDER DID NOT REQUIRE THE RESPONDENT TO VOLUNTEER AN
EXPLANATION IN THE ABSENCE OF A REQUEST OR SHOWING OF INTEREST BY THE
COMPLAINANT. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
THE RESPONDENT DID NOT ENGAGE IN ANY CONDUCT VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER.
WHILE I ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS PERTAINING TO
THE RESPONDENT'S MOTIVATION IN INSTITUTING THE LOG-KEEPING PROCEDURE
NOTING THE LACK OF EVIDENCE THAT SUCH CHANGE WAS MADE TO HARASS LEWIS
BECAUSE OF HIS UNION STATUS, I, NEVERTHELESS, DISAGREE WITH HIS
CONCLUSION THAT THE RESPONDENT'S CONDUCT HEREIN WAS NOT VIOLATIVE OF THE
ORDER. THUS, NOTWITHSTANDING THE TERMS OF THE PARTIES" NEGOTIATED
AGREEMENT, IN WHICH THE RESPONDENT AGREED TO CONSULT WITH THE
COMPLAINANT PRIOR TO MAKING ANY CHANGES IN PERSONNEL POLICIES, PRACTICES
AND PROCEDURES THAT WERE APPLICABLE TO EMPLOYEES IN THE UNIT, /5/ THE
RESPONDENT, THROUGH ITS AGENT, SERGEANT SEIFNER, UNILATERALLY SELECTED
THE PRESIDENT OF THE EXCLUSIVE REPRESENTATIVE AND, WITHOUT EXPLANATION,
IMPOSED A NEW WORKING CONDITION ON HIM DIFFERENT FROM THAT GOVERNING
OTHER UNIT EMPLOYEES OF THE RESPONDENT. IN MY VIEW, UNDER THESE
CIRCUMSTANCES, THE NATURAL AND FORESEEABLE CONSEQUENCE OF SUCH A POLICY
AIMED SOLELY AT THE WORKING CONDITIONS OF THE COMPLAINT'S PRESIDENT
WOULD BE TO REFLECT TO OTHER UNIT EMPLOYEES A DISPARAGEMENT OF AN
OFFICIAL OF THEIR EXCLUSIVE REPRESENTATIVE AND WOULD TEND TO RESTRAIN
EMPLOYEES, SUCH AS PRESIDENT LEWIS, FROM EXERCISING THEIR RIGHT TO JOIN
AND ASSIST A LABOR ORGANIZATION BY PARTICIPATING IN OR ACTING AS A
REPRESENTATIVE OF THAT LABOR ORGANIZATION AND PRESENTING THEIR VIEWS TO
MANAGEMENT. /6/ IN ADDITION, I FIND THAT THE RESPONDENT'S UNILATERAL
CONDUCT HEREIN IN IMPLEMENTING A CHANGE IN WORKING CONDITIONS WITHOUT
AFFORDING THE EXCLUSIVE REPRESENTATIVE NOTICE AND AN OPPORTUNITY TO MEET
AND CONFER THEREON HAD THE IMPROPER EFFECT OF EVIDENCING TO UNIT
EMPLOYEES THAT IT COULD ACT UNILATERALLY WITH RESPECT TO THEIR TERMS AND
CONDITIONS OF EMPLOYMENT WITHOUT REGARD TO THEIR EXCLUSIVE
REPRESENTATIVE. /7/ UNDER ALL OF THESE CIRCUMSTANCES, I CONCLUDE THAT
THE RESPONDENT'S CONDUCT HEREIN VIOLATED SECTION 19(A)(1) OF THE ORDER.
/8/
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I
SHALL ORDER THAT THE RESPONDENT CEASE AND DESIST THEREFROM AND TAKE
CERTAIN SPECIFIC AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE UNITED STATES AIR
FORCE, KINGSLEY FIELD, KLAMATH FALLS, OREGON, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN THE WORKING CONDITIONS OF OFFICIALS OF THE
EXCLUSIVE REPRESENTATIVE, OR ANY OTHER UNIT EMPLOYEES REPRESENTED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 704, INDEPENDENT, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT NOTIFYING THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 704, INDEPENDENT, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER ON SUCH MATTERS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED THEM BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT KINGSLEY FIELD COPIES OF THE ATTACHED
NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT
SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH
FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING OFFICER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
OCTOBER 22, 1974
/1/ NFFE LOCAL 704 IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN
EMPLOYEES OF THE RESPONDENT.
/2/ THE HEAD OF THE CIVIL ENGINEERING DEPARTMENT WAS OF THE VIEW THAT
ITS PRESENT PROCEDURES WERE ADEQUATE AND, THEREFORE, IT DID NOT
PARTICIPATE IN THE NEW LOG PROCEDURE.
/3/ FOLLOWING THE FILING OF THE CHARGE IN THIS MATTER, SEIFNER ADDED
THE PHRASE, "FOR BACK-UP FOR SUGGESTION THAT HAS BEEN SUBMITTED," TO THE
CAPTION ON THE LOG.
/4/ IN THIS RESPECT, THE ADMINISTRATIVE LAW JUDGE ACCEPTED AS
CREDIBLE LEWIS' TESTIMONY THAT SEIFNER DID NOT, IN FACT, FULLY EXPLAIN
THE PURPOSE AND INTENT OF THE LOG-KEEPING ASSIGNMENT.
/5/ SPECIFICALLY, ARTICLE 2, SECTION 2.4 ENTITLED, "CONSULTATION,"
PROVIDED, IN PART: "THE EMPLOYER AGREES TO CONSULT WITH NFFE 704 PRIOR
TO MAKING ANY CHANGES IN PERSONNEL POLICIES, PRACTICES AND PROCEDURES
THAT ARE APPLICABLE TO EMPLOYEES IN THE UNIT EXCEPT FOR EMERGENCY
SITUATIONS, AND THE EMPLOYER FURTHER AGREES TO FURNISH FIVE (5) COPIES
OF ANY PROPOSED CHANGES IN AFOREMENTIONED PERSONNEL POLICIES, PRACTICES
AND PROCEDURES TO NFFE 704 FOR REVIEW AND CONSULTATION AS SOON AS
POSSIBLE PRIOR TO THE PROPOSED EFFECTIVE DATE. . . ."
/6/ CF. U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, A/SLMR NO.
242.
/7/ SEE ANAHEIM POST OFFICE, U.S. POSTAL SERVICE, ANAHEIM,
CALIFORNIA, A/SLMR NO. 324. THE FACT THAT LEWIS DID NOT PROTEST
IMMEDIATELY OR INQUIRE ABOUT THE PURPOSE OF THE NEW LOG-KEEPING
PROCEDURE WAS NOT CONSIDERED TO REQUIRE A CONTRARY RESULT WHERE, AS
HERE, THE EVIDENCE ESTABLISHES THAT THE NEW PROCEDURE WAS INSTITUTED ON
THE SAME DAY THAT NOTIFICATION WAS GIVEN TO LEWIS. CF. NATIONAL LABOR
RELATIONS BOARD, A/SLMR NO. 246.
/8/ IT WAS NOTED THAT THE COMPLAINANT DID NOT ALLEGE A VIOLATION OF
SECTION 19(A)(6) OF THE ORDER.
WE WILL NOT INSTITUTE CHANGES IN WORKING CONDITIONS OF OFFICIALS OF
THE EXCLUSIVE REPRESENTATIVE, OR ANY OTHER UNIT EMPLOYEES REPRESENTED BY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 704, INDEPENDENT, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT NOTIFYING NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 704, INDEPENDENT, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO
MEET AND CONFER ON SUCH MATTERS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THE RIGHTS ASSURED THEM BY
THE EXECUTIVE ORDER.
DATED . . . BY . . .
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
UNITED STATES AIR FORCE,
KINGSLEY FIELD
KLAMATH FALLS, OREGON
AND
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
LOCAL 704, INDEPENDENT,
KLAMATH FALLS, OREGON
BRUCE LEMAR, CAPT., U.S.A.F.
OFFICE OF THE COMMAND JUDGE ADVOCATE
HEADQUARTERS, AEROSPACE DEFENSE COMMAND
ENT AIR FORCE BASE, COLORADO
GEORGE A. GARDIS, UNION REPRESENTATIVE
4605 SHASTA WAY
KLAMATH FALLS, OREGON
LAWRENCE E. LEWIS, PRESIDENT
LOCAL 704, NFFE
2449 WANTLAND AVENUE
KLAMATH FALLS, OREGON
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING WAS INITIATED UPON THE FILING OF A COMPLAINT ALLEGING
A VIOLATION OF SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED,
(HEREINAFTER REFERRED TO AS THE ORDER) BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 704, (HEREINAFTER REFERRED TO AS THE
COMPLAINANT OR UNION) AGAINST THE U.S. AIR FORCE, KINGSLEY FIELD,
KLAMATH FALLS, OREGON (HEREINAFTER REFERRED TO AS THE RESPONDENT OR
ACTIVITY) ON JUNE 28, 1973. THE COMPLAINT CHARGES THAT WITHOUT
CONSULTATION WITH THE UNION, ACTIVITY MANAGEMENT INSTITUTED A NEW
PROCEDURE WHEREBY MR. LAWRENCE E. LEWIS, PRESIDENT OF LOCAL 704, WAS
REQUIRED TO MAINTAIN A PERMANENT LOG OF THE TIME HE WAS AWAY FROM HIS
DUTY STATION AT THE ACTIVITY ON AUTHORIZED UNION BUSINESS. THIS
PRACTICE, IT IS ALLEGED, INTERFERED WITH, COERCED AND OTHERWISE
RESTRAINED MR. LEWIS IN THE EXERCISE OF THE RIGHTS GUARANTEED TO HIM BY
SECTION 1 OF THE ORDER AND LIKEWISE HAD A CHILLING AFFECT UPON OTHER
EMPLOYEES AND MEMBERS OF THE UNION IN THEIR EXERCISE OF SECTION 1
RIGHTS.
A NOTICE OF HEARING ON THE COMPLAINT WAS ISSUED ON OCTOBER 1, 1973,
BY THE REGIONAL ADMINISTRATOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION,
SAN FRANCISCO REGION. PURSUANT THERETO, A HEARING WAS HELD OCTOBER 25,
1973, IN KLAMATH FALLS, OREGON. BOTH PARTIES WERE PRESENT AT THE
HEARING AND WERE AFFORDED FULL OPPORTUNITY TO CALL AND EXAMINE WITNESSES
AND ADDUCE RELEVANT EVIDENCE. BRIEFS FILED BY BOTH PARTIES HAVE BEEN
CAREFULLY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER AND MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS TO THE ASSISTANT SECRETARY.
COMPLAINANT IS THE EXCLUSIVE REPRESENTATIVE FOR ALL UNIT EMPLOYEES AT
THE ACTIVITY. MR. LEWIS, THE UNION PRESIDENT, IS AN EMPLOYEE OF THE
ACTIVITY ASSIGNED TO THE VEHICLE MAINTENANCE SECTION OF THE DIRECTORATE
OF LOGISTICS. A COLLECTIVE BARGAINING AGREEMENT IN EFFECT BETWEEN THE
UNION AND THE ACTIVITY GOVERNED LABOR-MANAGEMENT RELATIONS AT THE
FACILITY AT THE TIME DURING WHICH THE ALLEGED UNFAIR LABOR PRACTICE
OCCURRED. /1/
ARTICLE 4 OF THIS AGREEMENT PROVIDES, IN PART, THAT UNION SHOP
REPRESENTATIVES WILL BE ALLOWED TO LEAVE THEIR ASSIGNED WORK DUTIES,
WITHOUT LOSS OF LEAVE OR PAY, TO ATTEND TO CERTAIN LISTED CATEGORIES OF
UNION BUSINESS. WHEN WISHING TO LEAVE HIS WORK AREA TO ENGAGE IN
AUTHORIZED UNION BUSINESS THE SHOP REPRESENTATIVE IS REQUIRED TO REQUEST
THE PERMISSION OF HIS IMMEDIATE SUPERVISOR. ARTICLE 4 PROVIDES THAT
PERMISSION WILL BE GRANTED IN THE ABSENCE OF "COMPELLING CIRCUMSTANCES
PREVENTING IT."
ON FEBRUARY 12, 1973, /2/ ROBERT E. MEANS, CIVILIAN PERSONNEL OFFICER
AT THE ACTIVITY, SUBMITTED A SUGGESTION TO THE AEROSPACE DEFENSE COMMAND
(ADC) UNDER PROCEDURES ESTABLISHED IN AIR FORCE MANUAL (AFM) 900-4. THE
SUGGESTION /3/ PROPOSED THE INSTITUTION OF A NEW TIME KEEPING CODE FOR
USE IN WORK AREAS OF THE ACTIVITY EMPLOYING A MAN-HOUR ACCOUNTING
SYSTEM. THIS NEW CODE WOULD BE USED TO DESIGNATE PAID TIME SPENT ON
AUTHORIZED UNION BUSINESS. PAST PRACTICE HAD HAD THIS TIME ACCOUNTED
FOR UNDER TIME CODES FOR ADMINISTRATION, OVERHEAD OR INDIRECT LABOR
COSTS. MR. MEANS WAS PROMPTED TO INTRODUCE HIS SUGGESTION BY WHAT HE
CONSIDERED TO BE THE DISTORTION IN COST ACCOUNTING FIGURES RESULTING
FROM THE REPORTING OF NONPRODUCTIVE TIME SPENT ON AUTHORIZED UNION
ACTIVITIES UNDER TIME CODES ALSO UTILIZED FOR PRODUCTIVE TIME. THE
ADDITION OF THE PROPOSED TIME-CODE WOULD, IN MEANS' OPINION, HAVE
PROVIDED SUPERVISORS AND MANAGERS WITH THE FLEXIBILITY NECESSARY TO COST
ACCOUNT FOR WORK ORDERS OR PROJECTS IN A REALISTIC WAY.
ON FEBRUARY 15, ADC RETURNED THE SUGGESTION TO MEANS AND DIRECTED
THAT HE GET A LOCAL EVALUATION OF THE PROPOSAL FROM EITHER THE CIVIL
ENGINEERING DEPARTMENT OR THE VEHICLE MAINTENANCE SECTION OF THE
DIRECTORATE OF LOGISTICS, THE TWO WORK AREAS AT THE ACTIVITY WHICH
EMPLOYED THE MAN-HOUR ACCOUNTING SYSTEM. APPROXIMATELY TWO UNION
OFFICERS AND FOUR STEWARDS WERE EMPLOYED IN THE TWO WORK AREAS. MEANS
CONTACTED CAPTAIN THOMAS M. HANSON, HEAD OF CIVIL ENGINEERING AND
CAPTAIN FREDRICK A. LINVILLE, DIRECTOR OF LOGISTICS, TO SEEK THEIR
EVALUATION OF THE SUGGESTION. CAPTAIN HANSON SUBMITTED HIS COMMENTS BY
LETTER DATED MARCH 28 /4/ WHEREIN HE INDICATED HIS BELIEF THAT LOCAL
PROCEDURES WERE ADEQUATE TO ACCOUNT FOR TIME SPENT ON UNION ACTIVITIES.
HE LATER INDICATED THAT HE HAD NO INTEREST IN IMPLEMENTING THE NEW TIME
CODE IN HIS SECTION TO TEST ITS EFFECTIVENESS.
CAPTAIN LINVILLE'S RESPONSE WAS MORE FAVORABLE. HE AGREED TO
EVALUATE THE SUGGESTION AND MET WITH MEANS TO DISCUSS POSSIBLE METHODS
TO EMPLOY IN GATHERING THE NECESSARY BACKGROUND DATA. LINVILLE'S
APPARENT CONCERN WAS TO DISCOVER WHETHER A SIGNIFICANT AMOUNT OF PAID
EMPLOYEE TIME WAS OCCUPIED BY UNION ACTIVITIES SUCH THAT ESTABLISHMENT
OF A NEW CODE WOULD BE WARRANTED. HE THEREFORE DETERMINED THAT SOME
SORT OF TIME RECORD WOULD HAVE TO BE KEPT. AFTER MEETING WITH TECHNICAL
SERGEANT CHARLES R. SEIFNER, SUPERVISOR OF THE VEHICLE MAINTENANCE
SECTION, CAPTAIN LINVILLE DECIDED TO HAVE MR. LEWIS KEEP A LOG OF THE
TIME HE SPENT AWAY FROM THE SECTION ON UNION REPRESENTATIONAL BUSINESS.
LINVILLE CHOSE MR. LEWIS TO KEEP THE LOG BECAUSE HE BELIEVED THAT AS
THE UNION PRESIDENT LEWIS WOULD SPEND MORE TIME ON UNION DUTIES THAN
OTHER UNION REPRESENTATIVES IN THE SECTION, AND THAT THE TIME HE SO
SPENT WOULD BE A SIGNIFICANT PORTION OF THE TOTAL TIME SPENT BY
EMPLOYEES OF THE SECTION ON AUTHORIZED UNION BUSINESS.
CAPTAIN LINVILLE THUS INSTRUCTED SERGEANT SEIFNER TO PREPARE A LOG IN
WHICH LEWIS WOULD MAINTAIN A PERMANENT RECORD OF THE TIME HE LEFT THE
WORK AREA ON UNION BUSINESS, HIS DESTINATION AND THE TIME OF HIS RETURN.
LINVILLE FURTHER ORDERED SGT. SEIFNER TO INSTRUCT MR. LEWIS TO
MAINTAIN THE LOG AND DIRECTED THAT THE PURPOSE OF THE ASSIGNMENT BE MADE
CLEAR.
ON APRIL 10 SEIFNER CALLED MR. LEWIS INTO HIS OFFICE AND INSTRUCTED
HIM IN THE USE OF THE LOG. SERGEANT SEIFNER TESTIFIED THAT PURSUANT TO
CAPTAIN LINVILLE'S ORDER HE EXPLAINED TO MR. LEWIS THE REASON FOR WHICH
HE WAS BEING REQUIRED TO KEEP THE PERMANENT LOG. LEWIS TESTIFIED THAT
SEIFNER OFFERED NO EXPLANATION FOR THE MAINTENANCE OF THE LOG AND THAT
ALTHOUGH HE HAD QUESTIONS REGARDING ITS PURPOSE HE DID NOT FEEL IT WISE
TO PROTEST. THIS TESTIMONY CONCERNING THE APRIL 10 MEETING IN SEIFNER'S
OFFICE PRESENTS THE ONLY SIGNIFICANT CONFLICT OF EVIDENCE IN THE RECORD.
AFTER FULL REVIEW AND CONSIDERATION, HOWEVER, I AM PERSUADED BY MR.
LEWIS' TESTIMONY THAT SERGEANT SEIFNER DID NOT IN FACT FULLY EXPLAIN THE
PURPOSE AND INTENT OF THE LOG KEEPING ASSIGNMENT AND DID NOT INDICATE
ITS RELATIONSHIP TO THE EARLIER FILED SUGGESTION. ON THE OTHER HAND,
LEWIS DID NOT PROTEST OR SEEK AN EXPLANATION OF THE REASONS FOR THE NEW
PROCEDURE.
PRIOR TO APRIL 10 IT HAD BEEN THE PRACTICE FOR MR. LEWIS ALONG WITH
ALL OTHER EMPLOYEES IN THE SECTION TO APPROACH SUPERVISOR SEIFNER WHEN
WISHING TO LEAVE THE WORK AREA FOR ANY REASON. UPON EXPLAINING THE
PURPOSE OF THE ABSENCE THE EMPLOYEE WOULD SIGN OUT ON A BLACK BOARD AND
LEAVE. THE ONLY PURPOSE FOR THIS PROCEDURE WAS TO INFORM ANYONE WHO
MIGHT BE LOOKING FOR THE EMPLOYEE OF THE TIME HE LEFT THE WORK AREA AND
HIS WHEREABOUTS. THE MESSAGE WOULD BE ERASED UPON THE EMPLOYEE'S
RETURN. /5/ IN THE EVENT SERGEANT SEIFNER WAS NOT PRESENT IN THE WORK
AREA WHEN MR. LEWIS WANTED TO LEAVE ON UNION BUSINESS HE HAD "BLANKET
PERMISSION" TO DO SO. ALL THAT WAS REQUIRED WAS FOR HIM TO SIGN OUT
AND, IF SEIFNER WAS PRESENT ON HIS RETURN, INFORM HIM OF THE REASON FOR
HIS ABSENCE.
FROM APRIL 10 UNTIL MAY 14, LEWIS MAINTAINED THE PERMANENT LOG AS
SEIFNER HAD DIRECTED. DURING THAT TIME A TOTAL OF EIGHT ENTRIES WERE
MADE. /6/ LEWIS CONTENDED, IN CREDITED TESTIMONY, THAT HE LEARNED OF
THE PURPOSE OF THE LOG ONLY AFTER HE FILED AN INFORMAL COMPLAINT WITH
COLONEL NAT B. KING, BASE COMMANDER. /7/ IN RESPONSE TO LEWIS' CHARGES
COL. KING CONVENED A BILATERAL FACT FINDING COMMITTEE, WHICH, AFTER
GATHERING EVIDENCE, ISSUED A REPORT ON MAY 7, IN WHICH THE PURPOSE OF
THE LOG KEEPING ASSIGNMENT AND ITS RELATION TO THE MEAN'S SUGGESTION WAS
DISCUSSED AND A FINDING MADE THAT MR. LEWIS' RIGHTS UNDER THE ORDER HAD
NOT BEEN COMPROMISED. /8/
THE LOG WAS DISCONTINUED ON MAY 15, AFTER ADC HAD AGAIN REVIEWED THE
MEANS SUGGESTION AND PRELIMINARY REPORTS FROM CIVIL ENGINEERING AND THE
VEHICLE MAINTENANCE SECTION AND DETERMINED THAT INSTITUTION OF A NEW
PERMANENT TIME CODE FOR UNION BUSINESS WAS UNNECESSARY.
IN THE TIME DURING WHICH THE LOG WAS KEPT THERE WAS NO CHANGE IN THE
BLANKET PERMISSION POLICY IN EFFECT IN THE VEHICLE MAINTENANCE SECTION
REGARDING LEWIS' CONDUCT OF UNION BUSINESS. LEWIS SPENT NO MORE THAN 30
MINUTES MAKING ENTIRES IN THE LOG DURING THE ENTIRE PERIOD HE WAS
REQUIRED TO DO SO. NO EVIDENCE WAS ADDUCED THAT THIS ADDITIONAL DUTY
HAD ANY DELETERIOUS EFFECT ON LEWIS' PERFORMANCE OF HIS UNION
RESPONSIBILITIES, APART FROM LEWIS' TESTIMONY THAT ONE UNION MEMBER HAD
ASKED HIM IN JEST WHETHER IT WAS STILL "SAFE" TO BELONG TO THE UNION,
AND THAT PEOPLE WOULD AVOID CALLING HIM OR COMING TO SEE HIM WHILE ON
DUTY AND WOULD WAIT UNTIL EVENING WHEN HE WAS AT HOME TO APPROACH HIM
ABOUT UNION AFFAIRS. ALTHOUGH THE LOG KEEPING ASSIGNMENT WAS MADE TO
LEWIS SHORTLY AFTER A LABOR-MANAGEMENT DISPUTE IN WHICH BOTH LEWIS AND
COL. LINVILLE WERE INVOLVED HAD ARISEN AT THE ACTIVITY, I FIND THE
INSTANCES UNRELATED.
THE UNION CONTENDS THAT BY REQUIRING MR. LEWIS ALONE AMONG UNION
MEMBERS TO KEEP A LOG OF HIS UNION ACTIVITIES, ACTIVITY MANAGEMENT
INTERFERED WITH HIS SECTION 1 RIGHTS AND INTIMIDATED OTHER UNION MEMBERS
IN THE EXERCISE OF THEIR PROTECTED RIGHTS. IN ADDITION THE UNION ARGUES
THAT IN IMPOSING UPON MR. LEWIS THE TASK OF KEEPING A LOG OF HIS UNION
ACTIVITIES WITHOUT FIRST CONSULTING OR CONFERRING WITH THE UNION,
ACTIVITY MANAGEMENT FURTHER VIOLATED SECTION 19(A)(1) OF THE ORDER.
THE ACTIVITY MAINTAINS THAT THE LOG KEEPING REQUIREMENT IMPOSED ON
MR. LEWIS WAS A TEMPORARY, EXPERIMENTAL MEASURE; THAT IT WAS A
LEGITIMATE TOOL BY WHICH TO GATHER EVIDENCE TO EVALUATE MR. MEANS'
SUGGESTION; THAT THE SELECTION OF MR. LEWIS TO KEEP A RECORD OF THE
TIME HE SPENT ON UNION ACTIVITIES WAS A LOGICAL WAY TO OBTAIN THE NEEDED
DATA AND THAT NO INJURY WAS WORKED AGAINST LEWIS OR OTHER UNION MEMBERS
THEREBY. THE ACTIVITY FURTHER CONTENDS THAT IT FULLY MET ANY BURDEN
IMPOSED BY THE ORDER TO CONSULT WITH THE UNION ABOUT THE PROCEDURE.
1. DID THE REQUIREMENT THAT UNION PRESIDENT LEWIS KEEP A LOG OF TIME
SPENT ON UNION MATTERS INTERFERE WITH, RESTRAIN, OR COERCE HIM IN THE
EXERCISE OF RIGHTS SECURED BY THE ORDER, AND DID IT HAVE A CHILLING
EFFECT UPON THE EXERCISE OF SUCH RIGHTS BY OTHER EMPLOYEES?
AS INDICATED IN THE RECITATION OF FACTS, I FIND NO EVIDENCE THAT
RESPONDENT IMPOSED THIS REQUIREMENT ON MR. LEWIS IN ORDER TO HARASS HIM
BECAUSE OF HIS STATUS OR BECAUSE OF HIS DISCHARGE OF HIS DUTIES AS UNION
PRESIDENT. RATHER, I ACCEPT THE RESPONDENT'S EXPLANATION THAT THE
PROCEDURE WAS EXPERIMENTAL, DESIGNED TO ELICIT INFORMATION ABOUT THE
FEASIBILITY OF CHANGING THE COST ACCOUNTING SYSTEM, AND LIMITED TO MR.
LEWIS BECAUSE HE WAS THE MOST ACTIVE UNION OFFICIAL IN THE ONLY
DEPARTMENT INTERESTED IN TESTING THE SUGGESTION. MR. LEWIS REMAINED
FREE AT ALL TIMES TO ATTEND TO UNION BUSINESS. AS IN THE PAST, HE WAS
NEVER REFUSED PERMISSION TO DO SO. THE ONLY DIFFERENCE BETWEEN THE NEW
AND THE OLD PROCEDURE WAS THE NEW CALLED FOR A PERMANENT RECORD OF
DEPARTURE TIME, DESTINATION AND RETURN TIME, WHEREAS THE OLD REQUIRED
ENTRY OF THE FIRST TWO ON A BLACKBOARD, AND THEIR ERASURE UPON RETURN.
THUS, I CONCLUDE THAT IMPOSITION OF THE NEW REQUIREMENT DID NOT CAUSE
ANY UNDUE DELAY OR INCONVENIENCE TO MR. LEWIS IN THE PERFORMANCE OF HIS
UNION DUTIES. AT MOST, IT CAUSED A MOMENTARY DELAY. I THEREFORE REJECT
THE CONTENTION THAT THE REQUIRED USE OF THE LOG INTERFERED WITH MR.
LEWIS' RIGHTS UNDER SECTION 1 OF THE ORDER. THE ADDITIONAL BURDEN UPON
HIM WAS AT MOST, MINIMAL, AND IT WAS TEMPORARY AND EXPERIMENTAL IN
NATURE. I OTHERWISE REJECT THE CONTENTION THAT MR. LEWIS WAS SINGLED
OUT FOR SUCH TREATMENT, THUS MANIFESTING MANAGEMENT'S CAPACITY TO HARASS
HIM WITH IMPUNITY AND IN CONSEQUENCE DISCOURAGING OTHER EMPLOYEES IN THE
EXERCISE OF THEIR SECTION 1 RIGHTS. RATHER, THE EVIDENCE STRONGLY
SUPPORTS RESPONDENT'S EXPLANATION THAT A STUDY OF THE FEASIBILITY OF THE
SUGGESTION WAS LIMITED TO THE VEHICLE MAINTENANCE SECTION BECAUSE CIVIL
ENGINEERING WAS NOT INTERESTED. FURTHERMORE, AS THE STUDY WAS DESIGNED
TO DISCOVER WHETHER A SUFFICIENT AMOUNT OF TIME WAS DEVOTED TO UNION
ACTIVITIES TO WARRANT THE ESTABLISHMENT OF A NEW TIME CODE, IT MADE
SENSE TO CENTER IT ON THE INDIVIDUAL WHO HANDLED MOST (IF NOT ALL) OF
THE UNION REPRESENTATIONAL WORK IN THAT SECTION. I FIND THAT RESPONDENT
WAS MOTIVATED BY A LEGITIMATE DESIRE TO DETERMINE WHETHER SUFFICIENT
WORK-TIME WAS ABSORBED IN UNION ACTIVITY TO WARRANT A NEW CODING SYSTEM
WHICH WOULD SEPARATE OUT SUCH NONPRODUCTIVE TIME FROM OTHER
NONPRODUCTIVE TIME, AND THAT ITS IMPOSITION OF THE LOGGING REQUIREMENT
HAD NEITHER THE PURPOSE NOR THE EFFECT OF INTERFERING WITH THE SECTION 1
RIGHTS OF EMPLOYEES.
2. DID RESPONDENT VIOLATE SECTION 19(A)(1) OF THE ORDER BY FAILING
TO CONSULT WITH THE UNION BEFORE IMPOSING UPON MR. LEWIS THE REQUIREMENT
THAT HE KEEP SUCH A LOG?
AS NOTED IN THE FINDINGS OF FACT, I ACCEPT MR. LEWIS' TESTIMONY THAT
HE WAS NEVER GIVEN AN EXPLANATION OF THE REASONS BEHIND THE DECISION TO
REQUIRE HIM TO KEEP A LOG UNTIL AFTER HIS APRIL 15 LETTER OF PROTEST TO
THE BASE COMMANDER. MR. LEWIS ALSO TESTIFIED THAT HE DID NOT, ON APRIL
10, PROTEST TO SGT. SEIFNER, OR REQUEST AN EXPLANATION OF HIM. ALTHOUGH
THE EXTRA BURDEN PLACED UPON HIM WAS SLIGHT, IT REPRESENTED A CHANGE IN
HIS WORKING CONDITIONS, AND IT WAS ONE WHICH CLEARLY MADE HIM
APPREHENSIVE. GOOD LABOR RELATIONS MIGHT HAVE DICTATED IN THE
CIRCUMSTANCES A RATHER FULL AND CAREFUL EXPLANATION OF THE UNDERLYING
PURPOSE OF THE REQUIREMENT. I CONCLUDE, HOWEVER, THAT THE ORDER DOES
NOT REQUIRE MANAGEMENT TO VOLUNTEER SUCH AN EXPLANATION IN THE ABSENCE
OF A REQUEST OR SHOW OF INTEREST BY THE UNION. HERE THE CHANGE
AFFECTED, AND IT WAS ANNOUNCED TO, THE UNION PRESIDENT. HE DID NOT
PROTEST, NOR DID HE INQUIRE ABOUT ITS PURPOSE. RATHER, HE WAITED, AS
HIS LETTER SHOWS, TO CONTACT HIS HEADQUARTERS BEFORE LODGING A PROTEST.
HE THEREAFTER RECEIVED AN EXPLANATION. I CONCLUDE THAT IT WAS INCUMBENT
UPON MR. LEWIS TO MAKE A REQUEST FOR CONSULTATION BEFORE ANY OBLIGATION
TO CONSULT COULD ARISE. I FIND, IN VIEW OF HIS FAILURE TO SEEK
CONSULTATION, THAT THERE IS NO MERIT TO THIS ALLEGATION OF THE
COMPLAINT.
I THEREFORE CONCLUDE THAT THIS RECORD FAILS TO ESTABLISH THAT THE
ACTIVITY ENGAGED IN ANY CONDUCT VIOLATIVE OF SECTION 19(A)(1) OF THE
ORDER.
IN VIEW OF THESE FINDINGS AND CONCLUSIONS, I RECOMMEND THAT THE
ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT RELATIONS DISMISS THE
COMPLAINT.
DATED: MAY 28, 1974
WASHINGTON, D.C.
/1/ COMPLAINANT'S EXHIBIT NO. 5.
/2/ ALL DATES HEREAFTER MENTIONED OCCURRED IN 1973.
/3/ RESPONDENT'S EXHIBIT NO. 2.
/4/ RESPONDENT'S EXHIBIT NO. 4.
/5/ SECTION EMPLOYEES USED THE SIGN-OUT BOARD ON THE ORAL ORDERS OF
SERGEANT SEIFNER. THE PRACTICE WAS NOT REQUIRED UNDER THE COLLECTIVE
BARGAINING AGREEMENT OF PUBLISHED ACTIVITY REGULATIONS.
/6/ COMPLAINANT'S EXHIBIT NO. 4.
/7/ COMPLAINANT'S EXHIBIT NO. 3.
/8/ AT THE HEARING RESPONDENT MOVED FOR DISMISSAL OF THE COMPLAINT ON
THE GROUND THAT THE ALLEGATIONS WERE IN EFFECT, CLAIMED VIOLATIONS OF
CONTRACT, AND THAT SECTION 19(D) OF THE ORDER REQUIRED, IN THESE
CIRCUMSTANCES, THAT A REMEDY BE SOUGHT THROUGH THE NEGOTIATED GRIEVANCE
PROCEDURES RATHER THAN UNDER THE ORDER. THERE IS NO EVIDENCE THAT MR.
LEWIS ELECTED TO INVOKE THE GRIEVANCE MACHINERY. ON THE CONTRARY, HE IN
FACT FILED AN UNFAIR LABOR PRACTICE CHARGE, THUS PROVOKING THE CREATION
OF THE BILATERAL COMMITTEE IN AN UNSUCCESSFUL EFFORT TO SECURE AN
INFORMAL RESOLUTION OF HIS CHARGE. ACCORDINGLY, THE MOTION IS DENIED.
4 A/SLMR 442; P. 703; CASE NO. 50-11021(CO); OCTOBER 22, 1974.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (PATCO-MEBA), INDIANAPOLIS,
INDIANA AIR ROUTE TRAFFIC CONTROL CENTER
A/SLMR NO. 442
THE INSTANT COMPLAINT, FILED BY AN INDIVIDUAL, ALLEGED THAT THE
RESPONDENT LABOR ORGANIZATION VIOLATED SECTION 19(B)(1) OF THE ORDER BY
REFUSING THE COMPLAINANT PARTICIPATION IN A REDUCED AIR FARE PROGRAM,
AND BY INFORMING HIM THAT MEMBERSHIP IN THE RESPONDENT WAS A
PREREQUISITE FOR PARTICIPATION IN THE PROGRAM.
IN RECOMMENDING THAT THE COMPLAINT BE DISMISSED, THE ADMINISTRATIVE
LAW JUDGE NOTED THAT DISTINCTION BETWEEN AN INCIDENT OF MEMBERSHIP AND A
CONDITION OF EMPLOYMENT AND THE CONSEQUENCES WHICH FLOW THEREFROM.
CONCLUDING THAT THE EVIDENCE ESTABLISHED THAT THE RESPONDENT'S REDUCED
AIR FARE PROGRAM, RESTRICTED TO PARTICIPATION OF UNION MEMBERS AND THEIR
FAMILIES, WAS MERELY AN INCIDENT OF MEMBERSHIP, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT NO VIOLATION OCCURRED WHEN THE COMPLAINANT, AN EMPLOYEE
IN THE BARGAINING UNIT, BUT NOT A MEMBER OF THE RESPONDENT, WAS ADVISED
OF THE MEMBERSHIP REQUIREMENTS FOR PARTICIPATION IN THE PROGRAM. HE
NOTED ADDITIONALLY THAT THERE WAS NOTHING IN THE ORDER WHICH PROHIBITED
THE RESPONDENT FROM SEEKING SUCH ARRANGEMENTS OR OBTAINING THE
EMPLOYER'S ACKNOWLEDGMENT THAT IT DOES NOT OPPOSE THESE EFFORTS.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT DISMISSAL OF THE INSTANT COMPLAINT WAS WARRANTED
BASED ON THE VIEW THAT THE EVIDENCE ESTABLISHED MERELY THAT THE REDUCED
AIR FARE PROGRAM WAS AN INCIDENT OF MEMBERSHIP IN THE RESPONDENT LABOR
ORGANIZATION. THE ASSISTANT SECRETARY NOTED IN THIS REGARD THAT THE
EVIDENCE FAILED TO ESTABLISH THAT THE RESPONDENT ACTED INCONSISTENT WITH
ITS OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO REPRESENT THE
INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND
WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP INASMUCH AS IT WAS NOT
ESTABLISHED BY THE COMPLAINANT THAT THE RESPONDENT HAD OBTAINED, BY
AGREEMENT WITH THE FEDERAL AVIATION ADMINISTRATION (FAA), A TERM AND
CONDITION OF EMPLOYMENT APPLICABLE ONLY TO MEMBERS OF THE RESPONDENT AND
THEIR IMMEDIATE FAMILIES. RATHER, IN THE ASSISTANT SECRETARY'S VIEW,
THE EVIDENCE REVEALED THAT THE RESPONDENT MERELY HAD OBTAINED THE FAA'S
ACKNOWLEDGMENT THAT IT WOULD NOT OPPOSE THE FORMER'S EFFORTS TO OBTAIN
FOR ITS MEMBERS A REDUCED OR FREE AIR FARE ARRANGEMENT OR CONSIDER THE
TAKING ADVANTAGE OF REDUCED AIR FARES TO BE VIOLATIVE OF ITS CODE OF
ETHICS. ACCORDINGLY, THE ASSISTANT SECRETARY, NOTING THE ABSENCE OF
EXCEPTIONS, ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS AND ORDERED THAT THE COMPLAINT BE DISMISSED.
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (PATCO-MEBA),
INDIANAPOLIS, INDIANA AIR ROUTE
TRAFFIC CONTROL CENTER
AND
JOSEPH CARSON RATTZ, SR.
ON AUGUST 7, 1974, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS OF THE ADMINISTRATIVE LAW
JUDGE ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION THAT
THE COMPLAINT HEREIN BE DISMISSED.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT DISMISSAL
OF THE INSTANT COMPLAINT IS WARRANTED BASED ON THE VIEW THAT THE
EVIDENCE HEREIN ESTABLISHES MERELY THAT THE REDUCED AIR FARE PROGRAM WAS
AN INCIDENT OF MEMBERSHIP IN THE RESPONDENT LABOR ORGANIZATION. THUS,
IN MY VIEW, THE EVIDENCE FAILS TO ESTABLISH THAT THE RESPONDENT ACTED
INCONSISTENT WITH ITS OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO
REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE UNIT WITHOUT
DISCRIMINATION AND WITHOUT REGARD TO LABOR ORGANIZATION MEMBERSHIP
INASMUCH AS IT WAS NOT ESTABLISHED BY THE COMPLAINANT THAT, BY VIRTUE OF
ARTICLE XV OF ITS NEGOTIATED AGREEMENT WITH THE FEDERAL AVIATION
ADMINISTRATION (FAA), THE RESPONDENT OBTAINED A TERM AND CONDITION OF
EMPLOYMENT APPLICABLE ONLY TO MEMBERS OF THE RESPONDENT AND THEIR
IMMEDIATE FAMILIES. RATHER, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE,
THE EVIDENCE ADDUCED REVEALS THAT THE RESPONDENT MERELY OBTAINED THE
FAA'S ACKNOWLEDGMENT THAT IT WOULD NOT OPPOSE THE FORMER'S EFFORTS TO
OBTAIN FOR ITS MEMBERS A REDUCED OR FREE AIR FARE ARRANGEMENT OR
CONSIDER THE TAKING ADVANTAGE OF REDUCED AIR FARES TO BE IN VIOLATION OF
ITS CODE OF ETHICS.
UNDER THESE CIRCUMSTANCES, I CONCLUDE THAT THE COMPLAINANT FAILED TO
SUSTAIN HIS BURDEN OF PROOF IN ESTABLISHING A VIOLATION OF THE ORDER
AND, ACCORDINGLY, I SHALL ORDER THAT THE INSTANT COMPLAINT BE DISMISSED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 50-11021 (CO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
OCTOBER 22, 1974
IN THE MATTER OF
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (PATCO-MEBA), INDIANAPOLIS,
INDIANA AIR ROUTE TRAFFIC CONTROL CENTER
AND
JOSEPH CARSON RATTZ, SR., AN INDIVIDUAL
WILLIAM B. PEER, ESQ.
BARR AND PEER
1101 17TH STREET, N.W.
SUITE 1002
WASHINGTON, D.C.
ROBERT E. MEYER
PATCO GREAT LAKES REGIONAL REPRESENTATIVE
3518 DES PLAINES AVENUE
SUITE 216
DES PLAINES, ILL. 60018
JOSEPH C. RATTZ, SR.
4029 OLIVE BRANCH ROAD
GREENWOOD, INDIANA
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING HEARD IN INDIANAPOLIS, INDIANA ON APRIL 30, 1974,
ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER CALLED THE
ORDER). PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS (HEREAFTER CALLED THE ASSISTANT SECRETARY), A
NOTICE OF HEARING ON COMPLAINT ISSUED ON APRIL 1, 1974, WITH REFERENCE
TO AN ALLEGED VIOLATION OF SECTION 19(B)(1) OF THE ORDER. THE COMPLAINT
FILED ON NOVEMBER 7, 1973, ALLEGES THAT "(O)N OR ABOUT SEPTEMBER 23,
1973, P.A.T.C.O. INDIANAPOLIS A LOCAL OF THE PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION BY ITS AGENT AND REPRESENTATIVE BILL SPENCER,
P.A.T.C.O. INDIANAPOLIS PRESIDENT . . ." REFUSED COMPLAINANT
PARTICIPATION IN A REDUCED AIR FARE PROGRAM AND INFORMED HIM THAT
MEMBERSHIP IN P.A.T.C.O. WAS A PREREQUISITE FOR PARTICIPATION IN THE
PROGRAM. COMPLAINANT ALLEGES THAT THE FOREGOING COERCED HIM, AND OTHER
NONUNION CONTROLLERS, INTO JOINING THE UNION.
AT THE HEARING RESPONDENT, P.A.T.C.O., INDIANAPOLIS, WAS REPRESENTED
BY COUNSEL AND COMPLAINANT REPRESENTED HIMSELF. BOTH PARTIES WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES, ARGUE ORALLY AND FILE BRIEFS.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY READING OF THE BRIEFS
FILED BY BOTH PARTIES AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING:
P.A.T.C.O. (NATIONAL) IS THE COLLECTIVE BARGAINING REPRESENTATIVE OF
VARIOUS AIR TRAFFIC CONTROL SPECIALISTS (CONTROLLERS) EMPLOYED BY THE
FEDERAL AVIATION ADMINISTRATION (FAA) AT NUMEROUS LOCATIONS INCLUDING
INDIANAPOLIS, INDIANA. P.A.T.C.O. (NATIONAL) AND FAA ARE PARTIES TO A
COLLECTIVE BARGAINING AGREEMENT COVERING THESE EMPLOYEES, SAID AGREEMENT
HAVING AN EFFECTIVE DATE OF APRIL 4, 1973 AND IN EFFECT AT ALL TIMES
MATERIAL HEREIN. THE COLLECTIVE BARGAINING AGREEMENT CONTAINS THE
FOLLOWING PROVISION. /1/
"WHERE APPLICABLE LAW AND REGULATIONS PERMIT, THE EMPLOYER
ACKNOWLEDGES THAT THE UNION MAY
ENTER INTO AGREEMENT WITH ANY COMMERCIAL PASSENGER AIRLINE, WHETHER
INTERNATIONAL, DOMESTIC,
INTERSTATE, OR INTRASTATE, TO OBTAIN REDUCED OR FREE FARES FOR ITS
MEMBERS AND THEIR IMMEDIATE
FAMILIES. THIS ALSO APPLIES TO ANY DESIGNATED AIR TAXI GOVERNED BY
LOCAL, STATE, OR FEDERAL
REGULATIONS."
TESTIMONY ADDUCED AT THE HEARING ESTABLISHES THAT WHILE P.A.T.C.O.
(NATIONAL) HAS ENTERED INTO REDUCED AIR FARE AGREEMENTS WITH CERTAIN
"COMMUTER" AIRLINES WHICH ARE UNREGULATED BY THE CIVIL AERONAUTICS BOARD
(CAB), IT HAS NOT ENTERED INTO ANY SUCH AGREEMENTS WITH ANY COMMERCIAL
PASSENGER AIRLINES REGULATED BY CAB. A REDUCED AIR FARE AGREEMENT WITH
ONE OF THESE LATTER CARRIERS WOULD REQUIRE APPROVAL BY THE CAB BEFORE IT
WOULD BECOME EFFECTIVE. HOWEVER, NO CAP APPROVAL IS REQUIRED FOR A
REDUCED AIR FARE AGREEMENT WITH A "COMMUTER" AIRLINE. IN EITHER CASE,
NO FAA ENDORSEMENT, APPROVAL OR ACTION IS REQUIRED BEFORE ENTERING INTO
REDUCED AIR FARE AGREEMENTS.
ON OR ABOUT SEPTEMBER 23, 1973, JOSEPH CARSON RATTZ, SR., (HEREAFTER
SOMETIMES CALLED COMPLAINANT), A CONTROLLER EMPLOYED AT THE FAA'S
INDIANAPOLIS FACILITY AND A MEMBER OF THE COLLECTIVE BARGAINING UNIT,
ASKED WILLIAM E. SPENCER, PRESIDENT OF P.A.T.C.O. INDIANAPOLIS LOCAL
UNION (P.A.T.C.O., INDIANAPOLIS) IF HE COULD PARTICIPATE IN THE REDUCED
AIR FARE PROGRAM. MR. SPENCER INFORMED MR. RATTZ THAT HE COULD NOT.
MR. RATTZ THEN ASKED WHAT HE WOULD HAVE TO DO TO PARTICIPATE IN THE
PROGRAM AND MR. SPENCER REPLIED, "JOIN P.A.T.C.O." AT NO TIME MATERIAL
HEREIN HAS MR. RATTZ BEEN A MEMBER OF P.A.T.C.O.
COMPLAINANT CONTENDS THAT ARTICLE 15 OF THE AGREEMENT, RECITED ABOVE,
MUST APPLY TO ALL MEMBERS OF THE COLLECTIVE BARGAINING UNIT AND REFUSAL
TO ALLOW A MEMBER OF THE COLLECTIVE BARGAINING UNIT PARTICIPATION IN THE
REDUCED AIR FARE PROGRAM BECAUSE OF NONMEMBERSHIP IN THE UNION VIOLATES
SECTION 19(B)(1) OF THE ORDER.
RESPONDENT CONTENDS THAT THE COMPLAINANT SHOULD BE DISMISSED IN THAT:
"(1) THE NAMED RESPONDENT IS NOT CULPABLE BECAUSE IT HAS NOTHING
WHATEVER TO DO WITH THE REDUCED AIR FARE PROGRAM AND IS NOT RESPONSIBLE
THEREFORE; AND (2) THE P.A.T.C.O. NATIONAL REDUCED AIR FARE PROGRAM IS
NOT A CONDITION OF EMPLOYMENT, RATHER IT IS AN INCIDENT OF MEMBERSHIP,
AND IS NOT PRESCRIBED OR PROHIBITED BY EXECUTIVE ORDER 11491, AS
AMENDED."
I REJECT RESPONDENT'S CONTENTION THAT P.A.T.C.O. INDIANAPOLIS IS NOT
A PARTY TO THIS PROCEEDING. WHILE THE LOCAL UNION IS NOT A SIGNATORY
PARTY TO THE COLLECTIVE BARGAINING AGREEMENT AND REDUCED AIR FARE
ARRANGEMENTS ARE NEGOTIATED BY P.A.T.C.O. (NATIONAL), WILLIAM SPENCER,
PRESIDENT OF THE LOCAL UNION, TESTIFIED THAT THE LOCAL REPRESENTS THE
CONTROLLERS IN THE UNIT AT THE INDIANAPOLIS FACILITY IN DEALING WITH
LOCAL FAA MANAGEMENT. PRESIDENT SPENCER FURTHER TESTIFIED: ". . . MY
POSITION IS TO SEE THAT THE CONTRACT IS UPHELD . . .". I ALSO NOTE
THAT THE COLLECTIVE BARGAINING AGREEMENT PROVIDES, INTER ALIA, FOR
PAYROLL DEDUCTIONS FOR PAYMENT OF LOCAL UNION DUES AND ALL OF
P.A.T.C.O.'S ALBEIT STANDARDIZED AT THE DIRECTION OF THE P.A.T.C.O.
EXECUTIVE BOARD.
UNDER ALL THESE CIRCUMSTANCES I FIND P.A.T.C.O. INDIANAPOLIS LOCAL
UNION TO BE A RESPONSIBLE PARTY CHARGEABLE WITH THE UNFAIR LABOR
PRACTICE ALLEGED HEREIN BY VIRTUE OF ITS OPERATION AND OVERALL ROLE IN
THE ADMINISTRATION OF THE COLLECTIVE BARGAINING AGREEMENT,
REPRESENTATION OF UNIT EMPLOYEES AND ITS RELATIONSHIP TO THE FACILITY'S
UNIT EMPLOYEES. ACCORDINGLY THE LEGAL CONSEQUENCES OF PRESIDENT
SPENCER'S UTTERANCES ARE APPROPRIATE FOR CONSIDERATION IN THIS
PROCEEDING. /2/
HOWEVER, I DO NOT FIND THAT RESPONDENT VIOLATED THE ORDER THROUGH
PRESIDENT SPENCER'S STATEMENT RELATIVE TO EXCLUDING MR. RATTZ FROM
PARTICIPATION IN THE REDUCED AIR FARE PROGRAM BECAUSE OF HIS LACK OF
UNION MEMBERSHIP. RESPONDENT ARGUES PERSUASIVELY THAT THE REDUCED AIR
FARE PROGRAM FOR UNION MEMBERS IS AN INCIDENT OF MEMBERSHIP AND NOT A
CONDITION OF EMPLOYMENT AND ACCORDINGLY IT IS FREE TO DISCRIMINATE
AGAINST NONMEMBERS IN SUCH MATTERS. THUS, IN ARTICLE 15 OF THE
COLLECTIVE BARGAINING AGREEMENT, THE FAA MERELY "ACKNOWLEDGES" THAT
P.A.T.C.O. MAY SEEK TO OBTAIN BENEFICIAL AIR FARES FOR ITS MEMBERS.
THE EMPLOYER DOES NOT BESTOW OR PROVIDE ANY BENEFIT TO UNION MEMBERS OR
INDIRECTLY ASSIST P.A.T.C.O. IN THIS ENDEAVOR BUT ESSENTIALLY STATES IN
THE ARTICLE THAT IT HAS NO OBJECTION IF P.A.T.C.O. WISHES TO SEEK SUCH
BENEFICIAL TREATMENT FROM THIRD PARTIES. /3/ THE BENEFIT THEREFORE, IF
OBTAINED, IS NOT IN ANY SENSE DERIVED FROM THE EMPLOYER. ON THE FACTS
OF THE CASE HEREIN I DO NOT FIND THAT THE REDUCED AIR FARE PROGRAM IS A
CONDITION OF EMPLOYMENT NOR DO I FIND ANYTHING IN THE ORDER WHICH
PROHIBITS P.A.T.C.O. FROM SEEKING SUCH ARRANGEMENTS OR OBTAINING THE
EMPLOYER'S "ACKNOWLEDGEMENT" THAT IT DOES NOT OPPOSE THESE EFFORTS.
WHILE THIS ISSUE IS ONE OF FIRST IMPRESSION UNDER THE ORDER, SIMILAR
ISSUES ARISING IN THE PRIVATE SECTOR UNDER THE LABOR-MANAGEMENT
RELATIONS ACT HAVE BEEN DECIDED BASED UPON THE DISTINCTION BETWEEN AN
INCIDENT OF MEMBERSHIP AND A CONDITION OF EMPLOYMENT AND THE LEGAL
CONSEQUENCES THAT FLOW THEREFROM. IN AMALGAMATED LOCAL 286,
INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS AMERICA, AFL, 110 NLRB
371 (1955) THE NATIONAL LABOR RELATIONS BOARD WHILE FINDING THAT CERTAIN
INSURANCE BENEFITS IN THAT CASE WERE A CONDITION OF EMPLOYMENT, IT
NEVERTHELESS RECOGNIZED THAT IF THE INSURANCE BENEFITS WERE AN INCIDENT
OF MEMBERSHIP AND NOT A CONDITION OF EMPLOYMENT, THE UNION'S THREATENED
WITHDRAWAL OF THE BENEFITS FROM MEMBERS FOR DISCIPLINARY REASONS WOULD
HAVE BEEN PRIVILEGED. THE U.S. COURT OF APPEALS (7TH CIR) /4/ IN
REVERSING THE BOARD SIMILARLY RECOGNIZED THIS DISTINCTION WHEN IT UPHELD
THE UNION'S RIGHT TO DENY ITS INSURANCE BENEFITS TO EMPLOYEES WHO FAILED
TO REMAIN MEMBERS OF THE UNION IN GOOD STANDING. THE COURT FOUND THAT
THE FACTS OF THE CASE ESTABLISHED THAT INSURANCE COVERAGE ". . . WAS A
BENEFIT INCIDENTAL TO UNION MEMBERSHIP AND NOT A CONDITION OF
EMPLOYMENT" AND THEREFORE THE UNION'S THREAT TO WITHDRAW SAID BENEFITS
WAS IN FULL CONFORMITY WITH ITS RIGHT TO REGULATE ITS INTERNAL AFFAIRS.
SUBSEQUENT TO THIS DECISION, IN ANOTHER CASE, THE GENERAL COUNSEL OF THE
NATIONAL LABOR RELATIONS BOARD REFUSED TO ISSUE A COMPLAINT AGAINST A
UNION RELATIVE TO THE UNION'S REFUSAL TO PAY WELFARE BENEFITS TO CERTAIN
DELINQUENT MEMBERS, SUCH BENEFITS HAVING BEEN DETERMINED TO BE INCIDENTS
OF MEMBERSHIP RATHER THAN CONDITIONS OF EMPLOYMENT. /5/
UNDER ALL THE CIRCUMSTANCES, I CONCLUDE THAT THE REDUCED AIR FARE
PROGRAM CONSTITUTES AN INCIDENT OF MEMBERSHIP IN P.A.T.C.O. AND
ACCORDINGLY I DO NOT FIND THAT PRESIDENT SPENCER VIOLATED THE ORDER WHEN
HE INFORMED COMPLAINANT OF THE MEMBERSHIP REQUIREMENTS FOR PARTICIPATION
IN THE PROGRAM.
BASED UPON THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT
THE COMPLAINT HEREIN BE DISMISSED.
DATED: AUGUST 7, 1974
WASHINGTON, D.C.
/1/ ARTICLE 15, SECTION 1, ENTITLED "REDUCED AIR FARES."
/2/ RESPONDENT'S COUNSEL ALLEGES THAT AT THE HEARING COMPLAINANT
STIPULATED THAT MR. SPENCER WAS ACTING AS AN AGENT OF P.A.T.C.O.
NATIONAL WHEN COMPLAINANT WAS REFUSED PARTICIPATION IN THE PROGRAM. THE
RECORD REVEALS THAT WHILE COUNSEL FOR RESPONDENT OFFERED SUCH A
STIPULATION, COMPLAINANT EXPRESSED CONFUSION OVER THE LEGAL CONSEQUENCES
OF THE STIPULATION AND NEVER CLEARLY AGREED TO ENTER INTO IT. UNDER
THESE CIRCUMSTANCES I REJECT RESPONDENT'S CONTENTION.
/3/ COUNSEL FOR RESPONDENT TESTIFIED THAT HE WAS THE CHIEF NEGOTIATOR
FOR P.A.T.C.O. IN THE NEGOTIATIONS WHICH GAVE RISE TO ARTICLE 15. HE
TESTIFIED THAT BECAUSE OF THE ROLE OF CONTROLLERS IN PERFORMING THEIR
DUTIES AND BEING IN A POSITION TO GIVE PREFERENCE TO AIRLINES, FAA AT
ONE TIME HAD A PROBLEM OF WHETHER IT MIGHT CONSTITUTE A CONFLICT OF
INTEREST FOR CONTROLLERS TO OBTAIN REDUCED AIR FARES FROM CERTAIN
CARRIERS. THEREFORE, THE ARTICLE WAS NEGOTIATED WITH FAA IN ORDER TO
PRECLUDE THE POSSIBILITY THAT FAA MIGHT CHARGE UNION CONTROLLERS TAKING
ADVANTAGE OF REDUCED AIR FARES OBTAINED BY P.A.T.C.O. WITH VIOLATION OF
ITS CODE OF ETHICS.
/4/ NLRB V. AMALGAMATED LOCAL 286, INTERNATIONAL UNION, UNITED
AUTOMOBILE WORKERS OF AMERICA, AFL, 222 F.2D 95, 36 LRRM 2049.
/5/ ADMINISTRATIVE RULINGS OF THE NLRB GENERAL COUNSEL, CASE NO.
SR-656 (1960).
4 A/SLMR 441; P. 681; CASE NO. 35-1785(CA); SEPTEMBER 30, 1974.
NEW YORK ARMY AND AIR
NATIONAL GUARD,
ALBANY, NEW YORK
A/SLMR NO. 441
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS
(COMPLAINANT) AGAINST THE NEW YORK ARMY AND AIR NATIONAL GUARD, ALBANY,
NEW YORK (RESPONDENT). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY
UNILATERALLY CHANGING THE WORKING CONDITIONS OF CERTAIN UNIT EMPLOYEES
THROUGH THE ISSUANCE OF INSTRUCTIONS WHICH CALLED FOR THE STRICT
ENFORCEMENT OF NATIONAL GUARD BUREAU REGULATIONS WHICH REQUIRE CIVILIAN
TECHNICIANS IN THE EXCEPTED SERVICE TO WEAR MILITARY UNIFORMS WHEN
PERFORMING THEIR TECHNICIAN FUNCTIONS AND WHICH, AS A COROLLARY, ARE
INTERPRETED AS REQUIRING THAT THE TECHNICIANS USE MILITARY FORMS OF
ADDRESS EVEN WHEN IN THEIR CIVILIAN JOB STATUS, ALTHOUGH BY PAST
PRACTICE MANY EMPLOYEES NEITHER WORE UNIFORMS NOR USED MILITARY FORMS OF
ADDRESS. THE EVIDENCE REVEALED THAT THESE CHANGES WERE IMPLEMENTED AT A
TIME WHEN THE PARTIES WERE NEGOTIATING FOR A COLLECTIVE BARGAINING
AGREEMENT.
AFTER SOME PRELIMINARIES, THE PARTIES, IN MARCH 1971, BEGAN
NEGOTIATING THEIR FIRST COLLECTIVE BARGAINING AGREEMENT. SOON
THEREAFTER, IT BECAME APPARENT THAT THEY WERE DIAMETRICALLY OPPOSED
REGARDING THE ABOVE-NOTED ISSUES. NATIONAL GUARD BUREAU REGULATION
(NGR) 690-2 REQUIRES THAT ALL CIVILIAN TECHNICIANS IN THE EXCEPTED
SERVICE WEAR MILITARY UNIFORMS WHILE PERFORMING IN THEIR CIVILIAN JOB
STATUS. THE REGULATION ALSO HAD BEEN INTERPRETED AS REQUIRING THAT THE
TECHNICIANS USE MILITARY FORMS OF ADDRESS IN THEIR FORMAL DEALINGS WHEN
IN THEIR CIVILIAN EMPLOYMENT STATUS. HOWEVER, NGR 690-2 GAVE THE CHIEF
OFFICER OF EACH OF THE STATE NATIONAL GUARDS THE PREROGATIVE OF
AUTHORIZING OTHER THAN MILITARY ATTIRE FOR THE TECHNICIANS WHEN HE
DEEMED IT APPROPRIATE. THE ADMINISTRATIVE LAW JUDGE FOUND, IN THIS
REGARD, THAT THE RESPONDENT TOLERATED EXTENSIVE DEVIATIONS FROM THE
REGULATORY REQUIREMENT. IN MAY 1971, THE RESPONDENT ISSUED MEMORANDA TO
SOME UNIT EMPLOYEES WHICH REITERATED THE REQUIREMENT THAT MILITARY FORMS
OF ADDRESS BE USED IN FORMAL CORRESPONDENCE, THEREBY EFFECTIVELY
CHANGING THE WORKING CONDITIONS OF UNIT EMPLOYEES WHO HAD NOT USED RANK.
SPORADIC NEGOTIATIONS CONTINUED FOR OVER A YEAR. ON MAY 22, 1972, THE
RESPONDENT SUBMITTED A PROPOSAL THAT STATED THAT AS OF SEPTEMBER 1,
1972, THE REGULATION REGARDING UNIFORM WEARING WOULD BE FULLY
IMPLEMENTED THROUGHOUT THE ACTIVITY. AT THIS STAGE OF THE NEGOTIATIONS,
THE COMPLAINANT WAS SUBMITTING PROPOSALS FRAMED IN TERMS OF THE
EXCEPTIONS CLAUSE OF THE REGULATION. ON JUNE 2, 1972, THE RESPONDENT
STATED THAT EXCEPTIONS TO THE REGULATION WOULD BE CONSIDERED ONLY IF IT
COULD BE SHOWN THAT A JOB COULD NOT BE DONE IN UNIFORM OR THAT TO WEAR
THE UNIFORM WOULD BE DETRIMENTAL TO THE SAFETY OR HEALTH OF AN EMPLOYEE.
ON AUGUST 5, 1972, THE RESPONDENT ISSUED A PAMPHLET TO THE UNIT
EMPLOYEES NOTIFYING THEM OF ITS INTENTION TO IMPLEMENT FULLY THE UNIFORM
WEARING REQUIREMENTS OF THE REGULATION AS OF SEPTEMBER 5, 1972.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT HAD THE
OBLIGATION TO MEET AND CONFER IN GOOD FAITH WITH THE COMPLAINANT
REGARDING THOSE EXCEPTIONS TO THE REQUIREMENTS OF NGR 690-2 WHICH ARE
WITHIN THE AUTHORITY OF THE CHIEF OFFICER OF EACH STATE (IN THIS CASE,
THE CHIEF OF STAFF TO THE GOVERNOR IN NEW YORK) TO DETERMINE. HE FOUND
THAT THE MAY 1971, MEMORANDA REGARDING THE USE OF MILITARY FORMS OF
ADDRESS, ISSUED TO SOME OF THE RESPONDENT'S EMPLOYEES, CONSTITUTED A
UNILATERAL CHANGE IN THE WORKING CONDITIONS OF CERTAIN UNIT EMPLOYEES.
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE IN THIS
REGARD FINDING THAT THE RESPONDENT'S FAILURE TO NOTIFY THE COMPLAINANT
AND AFFORD IT THE OPPORTUNITY TO MEET AND CONFER REGARDING THE CHANGE IN
POLICY WITH RESPECT TO THE USE OF MILITARY TITLES CONSTITUTED A
VIOLATION OF SECTION 19(A)(6). IN THE ASSISTANT SECRETARY'S VIEW, SUCH
UNILATERAL CONDUCT BY THE RESPONDENT, IN EFFECT, CONSTITUTED A BY-PASS
OF THE EXCLUSIVE BARGAINING REPRESENTATIVE, UNDERMINED ITS EXCLUSIVE
REPRESENTATIVE STATUS, AND WAS CLEARLY INCONSISTENT WITH THE
RESPONDENT'S OBLIGATIONS SET FORTH IN SECTION 11(A) OF THE ORDER.
FURTHER, THE ASSISTANT SECRETARY FOUND THAT SUCH CONDUCT BY THE
RESPONDENT WAS IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER AS IT
NECESSARILY HAD A RESTRAINING INFLUENCE UPON UNIT EMPLOYEES AND HAD A
CONCOMITANT COERCIVE EFFECT UPON THEIR RIGHTS ASSURED BY THE ORDER.
THE ADMINISTRATIVE LAW JUDGE FURTHER FOUND THAT THE MAY 22, 1972,
PROPOSAL MADE BY THE RESPONDENT WITH RESPECT TO ITS INTENTION TO
IMPLEMENT THE REGULATION REGARDING UNIFORM WEARING CONSTITUTED
APPROPRIATE NOTICE OF THAT CHANGE IN POLICY WHICH IT FORMALLY ANNOUNCED
TO THE EMPLOYEES ON AUGUST 5, 1972. IN HIS VIEW, BY NEGOTIATING FOR
OVER A YEAR REGARDING THE ISSUE OF UNIFORM WEARING, THE RESPONDENT MET
ITS OBLIGATION TO CONSULT WITH THE COMPLAINANT ON THIS ISSUE. HE
CONCLUDED, THEREFORE, THAT THE EVIDENCE FAILED TO ESTABLISH THAT THE
RESPONDENT VIOLATED THE ORDER BY CHANGING ITS POLICY THROUGH THE
ISSUANCE OF THE AUGUST 5, 1972, PAMPHLET. HE ALSO FOUND THAT THE
RESPONDENT HAD NOT VIOLATED THE ORDER BY FAILING TO PROVIDE ITS CHIEF
NEGOTIATOR WITH SUFFICIENT BARGAINING AUTHORITY. HE NOTED IN THIS
REGARD THAT THE COMPLAINANT HAD MADE PROPOSALS WHICH WENT TO THE
QUESTION OF THE RESPONDENT'S AUTHORITY UNDER THE BUREAU'S REGULATIONS
AND, THEREFORE, IT WAS NOT IMPROPER FOR THE RESPONDENT'S NEGOTIATORS TO
SEEK TIME TO EVALUATE AND DISCUSS SUCH BROAD PROPOSALS. HE ALSO FOUND
THAT THE RESPONDENT'S MAY 22, 1972, PROPOSAL, WHICH CONTEMPLATED THE
ESTABLISHMENT OF A STUDY GROUP TO EVALUATE POSSIBLE EXCEPTIONS TO THE
UNIFORM WEARING REGULATION WHILE LEAVING THE FINAL DECISION WITH THE
CHIEF OF STAFF, WAS A PROPOSAL WHICH THE COMPLAINANT WAS FREE TO REJECT,
AND THAT, STANDING ALONE, IT WAS NOT VIOLATIVE OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE FOUND, HOWEVER, THAT THE RESPONDENT
FAILED TO FULFILL ITS OBLIGATION TO MEET AND CONFER IN GOOD FAITH WHEN
IT ESTABLISHED UNILATERAL CRITERIA FOR THE DISCUSSION OF EXCEPTIONS TO
THE UNIFORM WEARING REGULATION WHICH WENT BEYOND THE LIMITS INHERENT IN
THE REGULATION. WHILE THE RESPONDENT COULD ULTIMATELY REFUSE TO ACCEDE
TO THE COMPLAINANT'S POSITION ON EXCEPTIONS TO THE UNIFORM REQUIREMENT
AND THE CRITERIA THEREFOR, IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, IT
COULD NOT UNILATERALLY LIMIT DISCUSSION TO ITS OWN CRITERIA FOR
EXCEPTIONS. THE ASSISTANT SECRETARY ADOPTED THE FINDING OF VIOLATION OF
SECTION 19(A)(1) AND (6) IN THIS REGARD BY THE ADMINISTRATIVE LAW JUDGE.
BASED ON THE FOREGOING CIRCUMSTANCES, THE ASSISTANT SECRETARY ORDERED
THAT THE RESPONDENT CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF
THE EXECUTIVE ORDER AND THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS
CONSISTENT WITH HIS DECISION.
NEW YORK ARMY AND AIR
NATIONAL GUARD,
ALBANY, NEW YORK
AND
NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
ON MARCH 22, 1974, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTIONS AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE
RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT. THEREAFTER, BOTH PARTIES FILED EXCEPTIONS AND
SUPPORTING BRIEFS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING
THE EXCEPTIONS AND SUPPORTING BRIEFS FILED BY BOTH PARTIES, I HEREBY
ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS. /1/
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, WHILE THE EMPLOYEES OF THE
UNITED STATES PROPERTY AND FISCAL OFFICE, BROOKLYN, NEW YORK, AND THE
HEADQUARTERS, 42ND INFANTRY DIVISION, COMPONENTS OF THE RESPONDENT, WERE
REQUIRED BY REGULATION TO USE MILITARY TITLES IN FORMAL COMMUNICATIONS,
THE REGULATION WAS NOT STRICTLY OR UNIFORMLY ENFORCED. IN MAY 1971, THE
EMPLOYEES AT THESE FACILITIES WERE INFORMED, BY MEMORANDA, THAT THE
REGULATION HENCEFORTH WOULD BE STRICTLY ENFORCED. THE ADMINISTRATIVE
LAW JUDGE FOUND THAT, BY VIRTUE OF AN EXCEPTIONS CLAUSE WITHIN THE
REGULATION WHICH GAVE DISCRETION TO THE CHIEF OFFICER OF THE RESPONDENT
TO AUTHORIZE MODIFICATIONS THERETO, AND THE FACT THAT NO EXCEPTION TO
THE REGULATION AT THE FACILITIES IN QUESTION HAD BEEN TACITLY AUTHORIZED
SINCE JANUARY 1, 1969, THE RESPONDENT WAS OBLIGED TO MEET AND CONFER
WITH THE COMPLAINANT, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
REGARDING ANY CHANGE IN THE ENFORCEMENT OF THE REQUIREMENT THAT
EMPLOYEES USE MILITARY TITLES. IN THIS CONNECTION, THE EVIDENCE
ESTABLISHED THAT THE RESPONDENT DID NOT MEET AND CONFER WITH THE
COMPLAINANT PRIOR TO THE ISSUANCE OF THE MAY 1971, MEMORANDA ANNOUNCING
ITS INTENTION TO ENFORCE STRICTLY THE ABOVE-MENTIONED REGULATION.
UNDER THESE CIRCUMSTANCES, I FIND, IN ESSENTIAL AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S FAILURE TO NOTIFY THE
COMPLAINANT AND AFFORD IT THE OPPORTUNITY TO MEET AND CONFER REGARDING
THE CHANGE OF POLICY WITH RESPECT TO THE USE OF MILITARY TITLES
CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER. THUS, IN MY
VIEW, SUCH UNILATERAL CONDUCT BY THE RESPONDENT, IN EFFECT, CONSTITUTED
A BY-PASS OF THE EXCLUSIVE BARGAINING REPRESENTATIVE, UNDERMINED ITS
EXCLUSIVE REPRESENTATIVE STATUS, AND WAS CLEARLY INCONSISTENT WITH THE
RESPONDENT'S OBLIGATIONS SET FORTH IN SECTION 11(A) OF THE ORDER. /2/
FURTHER, I FIND THAT SUCH CONDUCT BY THE RESPONDENT NECESSARILY HAD A
RESTRAINING INFLUENCE UPON UNIT EMPLOYEES AND HAD A CONCOMITANT COERCIVE
EFFECT UPON THEIR RIGHTS ASSURED BY THE ORDER. CONSEQUENTLY, I CONCLUDE
THAT THE RESPONDENT'S IMPROPER CONDUCT DESCRIBED ABOVE ALSO VIOLATED
SECTION 19(A)(1) OF THE ORDER.
HAVING FOUND THAT THE RESPONDENT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, I SHALL ORDER THAT THE RESPONDENT CEASE AND DESIST THEREFROM
AND TAKE SPECIFIC AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NEW YORK
ARMY AND AIR NATIONAL GUARD, ALBANY, NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO NOTIFY THE NEW YORK STATE COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING
CHANGED IN THE IMPLEMENTATION OF REGULATIONS WHICH REQUIRE SOME OF ITS
EMPLOYEES TO USE MILITARY FORMS OF ADDRESS, OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER IN GOOD FAITH ON SUCH
MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
(B) REFUSING TO MEET AND CONFER IN GOOD FAITH WITH THE NEW YORK STATE
COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITH RESPECT TO EXCEPTIONS TO THE REQUIREMENT THAT
UNIFORMS WILL BE WORN BY AFFECTED EMPLOYEES BY LIMITING DISCUSSIONS TO
ITS UNILATERALLY ESTABLISHED CRITERIA FOR SUCH EXCEPTIONS.
(C) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
FAILING TO NOTIFY THE NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING CHANGES
IN THE IMPLEMENTATION OF REGULATIONS WHICH REQUIRE SOME OF ITS EMPLOYEES
TO USE MILITARY FORMS OF ADDRESS, OR OTHER MATTERS AFFECTING THE WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER IN GOOD FAITH ON SUCH MATTERS TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) NOTIFY THE NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING CHANGES
IN THE IMPLEMENTATION OF REGULATIONS WHICH REQUIRE SOME OF ITS EMPLOYEES
TO USE MILITARY FORMS OF ADDRESS, OR OTHER MATTERS AFFECTING THE WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORD SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER IN GOOD FAITH ON SUCH MATTERS TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS.
(B) UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH THE NEW YORK
STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, WITH RESPECT TO EXCEPTIONS TO THE REQUIREMENT
THAT UNIFORMS WILL BE WORN BY AFFECTED EMPLOYEES WITHOUT LIMITING
DISCUSSIONS TO ITS UNILATERALLY ESTABLISHED CRITERIA FOR SUCH
EXCEPTIONS.
(C) POST AT THE FACILITIES OF THE NEW YORK ARMY AND AIR NATIONAL
GUARD, STATE OF NEW YORK, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE CHIEF OF STAFF TO THE GOVERNOR OF NEW YORK STATE 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
CHIEF OF STAFF SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES
ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
ADDITIONAL VIOLATIONS OF SECTION 19(A)(1) AND (6) BE, AND IT HEREBY IS,
DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE RESPONDENT'S
MOTION TO DISMISS, BASED ON THE COMPLAINANT'S ALLEGED NONCOMPLIANCE WITH
THE PRECOMPLAINT CHARGE REQUIREMENTS OF THE ASSISTANT SECRETARY'S
REGULATIONS, BE DENIED ON THE GROUNDS THAT, "WHEN THE ALLEGED VIOLATIONS
OCCURRED THE PARTIES POSITIONS AND DISPOSITIONS WERE WELL-KNOWN TO ONE
ANOTHER AND IT IS OBVIOUS THAT RITUALISTIC ADHERENCE TO THE REGULATION
REQUIRING THE FILING OF A FORMAL WRITTEN CHARGE ON THE MATTER BEFORE
FILING A COMPLAINT WOULD HAVE BEEN A FUTILITY AND HAVE SERVED NO USEFUL
PURPOSE." WHILE I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION IN THIS REGARD THAT THE MOTION TO DISMISS BE DENIED, I DO
NOT ADOPT HIS RATIONALE SET FORTH ABOVE. RATHER, I FIND THAT DENIAL OF
THE MOTION TO DISMISS IS WARRANTED BASED ON THE VIEW THAT THE RESPONDENT
FAILED TO RAISE THIS MATTER IN A TIMELY FASHION WITH THE AREA
ADMINISTRATOR DURING THE INVESTIGATION PERIOD PROVIDED FOR IN SECTION
203.5 OF THE ASSISTANT SECRETARY'S REGULATIONS OR WITH THE ASSISTANT
REGIONAL DIRECTOR PRIOR TO THE ISSUANCE OF THE NOTICE OF HEARING IN THIS
CASE. CF. VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA,
A/SLMR NO. 87.
/2/ CF. VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, LOS
ANGELES, CALIFORNIA, A/SLMR NO. 388; VETERANS ADMINISTRATION, VETERANS
ADMINISTRATION HOSPITAL, MUSKOGEE, OKLAHOMA, A/SLMR NO. 301; AND UNITED
STATES ARMY SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO.
42.
WE WILL NOT IMPLEMENT CHANGES IN THE ENFORCEMENT OF REGULATIONS WHICH
REQUIRE SOME OF OUR EMPLOYEES TO USE MILITARY FORMS OF ADDRESS, OR OTHER
MATTERS AFFECTING THE WORKING CONDITIONS OF EMPLOYEES IN THE UNIT,
WITHOUT AFFORDING THE NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, PRIOR NOTIFICATION
OF SUCH CHANGES, AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO
MEET AND CONFER IN GOOD FAITH ON SUCH MATTERS TO THE EXTENT CONSONANT
WITH LAW AND REGULATIONS.
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH WITH THE NEW YORK
STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, WITH RESPECT TO EXCEPTIONS TO THE REQUIREMENT
THAT UNIFORMS WILL BE WORN BY AFFECTED EMPLOYEES BY LIMITING DISCUSSIONS
TO OUR UNILATERALLY ESTABLISHED CRITERIA FOR SUCH EXCEPTIONS.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
FAILING TO NOTIFY THE NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING CHANGES
IN THE ENFORCEMENT OF REGULATIONS WHICH REQUIRE SOME OF OUR EMPLOYEES TO
USE MILITARY FORMS OF ADDRESS, OR OTHER MATTERS AFFECTING THE WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER IN GOOD FAITH ON SUCH MATTERS TO THE
EXTENT CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOTIFY THE NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED
CHANGE IN THE ENFORCEMENT OF REGULATIONS WHICH REQUIRE SOME OF OUR
EMPLOYEES TO USE MILITARY FORMS OF ADDRESS, OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF EMPLOYEES IN THE UNIT, AND AFFORD THE NEW YORK
STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, THE OPPORTUNITY TO MEET AND CONFER IN GOOD
FAITH ON SUCH MATTERS TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
WE WILL, UPON REQUEST, MEET AND CONFER IN GOOD FAITH WITH THE NEW
YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, WITH RESPECT TO EXCEPTIONS TO THE REQUIREMENT
THAT UNIFORMS WILL BE WORN BY AFFECTED EMPLOYEES WITHOUT LIMITING
DISCUSSION TO OUR UNILATERALLY ESTABLISHED CRITERIA FOR SUCH EXCEPTIONS.
DATED . . . BY . . .
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 WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WHOSE ADDRESS IS:
SUITE 3515, 1515 BROADWAY, NEW YORK, NEW YORK 10036.
IN THE MATTER OF
NEW YORK ARMY AND AIR NATIONAL GUARD
AND
NEW YORK STATE COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC.
NOEL J. CIPRIANO
COLONEL, JAGC-RET.
LEGAL OFFICER
DIVISION OF MILITARY AND NAVAL AFFAIRS
PUBLIC SECURITY BUILDING
STATE CAMPUS, ALBANY, NEW YORK
VICTOR ALAN OLIVERI, ESQUIRE
& THOMAS H. PALMER, ESQUIRE
786 ELLICOTT SQUARE BUILDING
BUFFALO, NEW YORK 14203
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING, HEARD IN ALBANY, NEW YORK, ON JUNE 13, 14, AND 15,
AND JULY 10 AND 11, 1973, ARISES UNDER EXECUTIVE ORDER 11491, AS
AMENDED, (HEREINAFTER CALLED THE ORDER). PURSUANT TO THE REGULATIONS OF
THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS, (HEREINAFTER
CALLED THE ASSISTANT SECRETARY), A NOTICE OF HEARING ON COMPLAINT ISSUED
ON MARCH 2, 1973, WITH REFERENCE TO AN ALLEGED VIOLATION OF SECTION
19(A)(6) OF THE ORDER AND ON MAY 30, 1973, THE HEARING WAS ORDERED
RESCHEDULED BY NEW YORK REGIONAL ADMINISTRATOR BENJAMIN B. NAUMOFF.
ON JULY 26, 1971, A COMPLAINT WAS FILED BY NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., (HEREINAFTER CALLED
COMPLAINANT OR THE UNION) AGAINST NEW YORK ARMY AND AIR NATIONAL GUARD
(HEREINAFTER CALLED RESPONDENT OR THE ACTIVITY) ALLEGING THAT DURING
CONTRACT NEGOTIATIONS THE ACTIVITY UNILATERALLY REQUIRED CIVILIAN
TECHNICIAN EMPLOYEES AT VARIOUS OF ITS FACILITIES TO USE MILITARY TITLES
ON OFFICIAL CORRESPONDENCE AND IN BUSINESS DISCUSSIONS, THEREBY
VIOLATING SECTION 19(A)(6) OF THE ORDER. ON AUGUST 22, 1972, THE UNION
AMENDED THE COMPLAINT BY ALLEGING THAT DURING CONTRACT NEGOTIATIONS
RESPONDENT FURTHER VIOLATED SECTION 19(A)(6) OF THE ORDER BY
UNILATERALLY REQUIRING NATIONAL GUARD MEMBERS TO WEAR MILITARY UNIFORMS
WHILE EMPLOYED AS CIVILIAN TECHNICIANS. FURTHER, AT THE HEARING, OVER
OBJECTION OF COUNSEL FOR RESPONDENT, I PERMITTED THE UNION TO AMEND THE
COMPLAINT TO INCLUDE AN ALLEGATION OF VIOLATION OF SECTION 19(A)(1) OF
THE ORDER RELATIVE TO ALLEGED ACTIVITY CONDUCT AT CERTAIN NEGOTIATING
MEETINGS.
DURING THE HEARING RESPONDENT MOVED TO DISMISS THE COMPLAINT
CONTENDING THAT COMPLAINANT FAILED TO STATE A CLAIM UPON WHICH RELIEF
CAN BE GRANTED. RESPONDENT ARGUED THAT THE MATTERS GIVING RISE TO THE
COMPLAINT WERE NON-NEGOTIABLE AND UNTIL THE QUESTION OF NEGOTIABILITY
WAS RULED UPON BY THE FEDERAL LABOR RELATIONS COUNCIL THROUGH THE
PROCEDURES SET FORTH IN SECTION 11(C) OF THE ORDER, THE COMPLAINT MAY
NOT BE ADJUDICATED BY THE ASSISTANT SECRETARY. RESPONDENT ALSO MOVED TO
DISMISS THE COMPLAINT ALLEGING THAT NO CHARGE WAS FILED BEFORE THE
COMPLAINT WAS FILED IN THIS MATTER AS REQUIRED BY THE REGULATIONS AND,
ACCORDINGLY, THE COMPLAINT WAS NOT PROPERLY BEFORE THE ASSISTANT
SECRETARY. COMPLAINANT OPPOSED THE MOTIONS TO DISMISS. AT THE HEARING,
I RESERVED RULING ON THE ABOVE MOTIONS.
FOR REASONS WHICH HEREINAFTER WILL BE SET FORTH, I FIND THAT THE
COMPLAINT DOES STATE A CLAIM WHICH IS LITIGABLE BEFORE THE ASSISTANT
SECRETARY. AS TO THE CONTENTION THAT THE UNION FAILED TO FOLLOW
APPROPRIATE COMPLAINT PROCEDURES AS REQUIRED BY THE REGULATIONS,
RESPONDENT RELIES ON SECTION 203.2(A) OF THE REVISED REGULATIONS WHICH
REQUIRES, PRIOR TO FILING A COMPLAINT, THE FILING OF A WRITTEN CHARGE,
ETC., AS WELL AS AN INVESTIGATION BY THE PARTIES AND AN ATTEMPT TO
INFORMALLY RESOLVE THE MATTER.
THE RECORD REVEALS THAT COMPLAINANT NOTIFIED RESPONDENT, BY LETTER
DATED 31 MAY 1971, /1/ THAT IT WAS OBJECTING TO THE MATTERS WHICH GAVE
RISE TO ITS COMPLAINT OF JULY 26, 1972, AND SPECIFICALLY INDICATED THAT
THE LETTER CONSTITUTED NOTIFICATION REQUIRED BY THE REGULATIONS.
FURTHER, WHILE A WRITTEN UNFAIR LABOR PRACTICE CHARGE WAS NOT FILED
PRIOR TO THE FILING OF THE AMENDED COMPLAINT ON AUGUST 22, 1972, IT IS
APPARENT THAT THE ADDITIONAL ALLEGED VIOLATIONS CONTAINED THEREIN
OCCURRED DURING CONTRACT NEGOTIATIONS BETWEEN THE PARTIES AND WAS ORALLY
PROTESTED DURING NEGOTIATIONS. THE PURPOSE OF FILING A WRITTEN CHARGE
IS TO ENABLE THE PARTIES TO INFORMALLY RESOLVE THE ALLEGED UNFAIR LABOR
PRACTICE. /2/ WHEN THE ALLEGED VIOLATIONS OCCURRED THE PARTIES
POSITIONS AND DISPOSITIONS WERE WELL KNOWN TO THE REGULATION REQUIRING
THE FILING OF A FORMAL WRITTEN CHARGE ON THE MATTER BEFORE FILING A
COMPLAINT WOULD HAVE BEEN A FUTILITY AND HAVE SERVED NO USEFUL PURPOSE.
ACCORDINGLY, UNDER THE CIRCUMSTANCES HEREIN, I RECOMMEND THAT
RESPONDENT'S MOTIONS TO DISMISS BE DENIED.
AT THE HEARING BOTH PARTIES WERE REPRESENTED BY COUNSEL AND HAD FULL
OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED BY BOTH PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, AND FROM MY READING OF THE
BRIEFS AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE
THE FOLLOWING:
I. INTRODUCTION
AT ALL TIMES SINCE MAY 1970 COMPLAINANT HAS BEEN THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE OF THE ACTIVITY'S ARMY, AIR AND AIR
DEFENSE NATIONAL GUARD TECHNICIANS AND EMPLOYEES IN THE UNITED STATES
PROPERTY AND FISCAL OFFICE (USP&FO) LOCATED IN THE STATE OF NEW YORK,
EXCLUDING ALL SUPERVISORS, MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
PERSONNEL WORK OTHER THAN CLERICAL AND GUARDS. /3/ THE COLLECTIVE
BARGAINING UNIT TOTALS APPROXIMATELY 1,800 EMPLOYEES AND IS COMPRISED OF
APPROXIMATELY 900 ARMY NATIONAL GUARD TECHNICIANS OF WHICH APPROXIMATELY
50 PERCENT ARE EMPLOYED AS MECHANICS; 300 ARMY NATIONAL GUARD AIR
DEFENSE TECHNICIANS; AND 600 AIR NATIONAL GUARD TECHNICIANS. AT THE
TIME OF THE HEARING HEREIN NO COLLECTIVE BARGAINING AGREEMENT HAD BEEN
EXECUTED BETWEEN THE PARTIES.
BY STATUTE EFFECTIVE JANUARY 1, 1969, FORMER STATE EMPLOYEES SERVING
IN THEIR RESPECTIVE NATIONAL GUARD UNITS WERE CONVERTED TO EXCEPTED
FEDERAL SERVICE EMPLOYEES. THE STATUTE ALSO REQUIRED EMPLOYEES ENTERING
THE EXCEPTED SERVICE BE MEMBERS OF THE NATIONAL GUARD IN ORDER TO RETAIN
EMPLOYMENT AS TECHNICIANS WITH THE ACTIVITY. A SMALL NUMBER OF THE
ACTIVITY'S TECHNICIANS WERE TRANSFERRED TO THE FEDERAL COMPETITIVE
SERVICE AT THIS TIME.
THE "ADJUTANT GENERAL" IS THE HIGHEST RANKING OFFICER AND THE
COMMANDING OFFICER IN MOST STATE'S NATIONAL GUARD UNITS. HOWEVER, IN
NEW YORK STATE, THE "CHIEF OF STAFF TO THE GOVERNOR OF NEW YORK" IS THE
HIGHEST RANKING OFFICER AND, AS SUCH, IS RESPONSIBLE TO THE GOVERNOR FOR
SOME PURPOSES AND IS RESPONSIBLE TO THE NATIONAL GUARD BUREAU OF THE
DEPARTMENT OF THE ARMY AND AIR FORCE AND THE DEPARTMENT OF DEFENSE FOR
OTHER PURPOSES.
II. CHRONOLOGY OF EVENTS /4/
AFTER THE MAY 1970 RECOGNITION OF THE UNION AS THE COLLECTIVE
BARGAINING REPRESENTATIVE OF UNIT EMPLOYEES, THE PARTIES MET IN NOVEMBER
1970 TO DISCUSS PROCEDURES FOR NEGOTIATING A COLLECTIVE BARGAINING
AGREEMENT. THEREAFTER, CONTRACT PROPOSALS WERE EXCHANGED BETWEEN THE
PARTIES IN DECEMBER OF 1970. WITH REGARD TO THE WEARING OF MILITARY
UNIFORMS AND THE USE OF MILITARY RANK OR TITLES, THE UNION'S PROPOSAL
READ:
"NO MILITARY UNIFORM TO BE WORN. NO MILITARY TITLES TO BE USED
DURING WORKING HOURS."
THE ACTIVITY'S PROPOSAL IN THIS REGARD STATED:
"EMPLOYEES IN THE EXCEPTED SERVICE SHALL WEAR THE MILITARY UNIFORM IN
ACCORDANCE WITH THE
INSTRUCTIONS OF THE CHIEF OF STAFF TO THE GOVERNOR" AND "EMPLOYEES IN
THE EXCEPTED SERVICE
SHALL BE ADDRESSED BY THEIR MILITARY TITLE."
THE FIRST NEGOTIATION SESSION BETWEEN THE PARTIES WAS HELD ON MARCH
19, 1971. /5/ EARLY IN NEGOTIATIONS, PERHAPS AT THE SECOND MEETING ON
MARCH 20, 1971, THE PROPOSALS WITH REGARD TO THE WEARING OF UNIFORMS AND
USE OF MILITARY TITLES WERE DISCUSSED. BOTH PARTIES ADAMANTLY ADHERED
TO THEIR INITIAL WRITTEN PROPOSALS ON THESE ISSUES BUT BY MUTUAL
AGREEMENT DECIDED TO DEFER NEGOTIATIONS ON THEM UNTIL AFTER OTHER LESS
CONTROVERSIAL PROPOSALS HAD BEEN NEGOTIATED.
FROM THE INCEPTION OF NEGOTIATIONS THE ACTIVITY RELIED UPON EXISTING
NATIONAL GUARD REGULATIONS TO SUPPORT THEIR POSITION RELATIVE TO THEIR
PROPOSAL ON THE WEARING OF UNIFORMS AND THE USE OF MILITARY TITLES.
SPECIFICALLY THE ACTIVITY RELIED UPON NATIONAL GUARD REGULATIONS NGR
690-2, PARAGRAPH 2-5, TO SUPPORT ITS POSITION. /6/ THAT REGULATION,
EFFECTIVE MARCH 1, 1970, PROVIDES:
"WEARING OF THE UNIFORM. TECHNICIANS IN THE EXCEPTED SERVICE WILL
WEAR THE MILITARY
UNIFORM APPROPRIATE TO THEIR SERVICE AND FEDERALLY RECOGNIZED GRADE
WHEN PERFORMING TECHNICIAN
DUTIES. WHEN THE UNIFORM IS DEEMED INAPPROPRIATE FOR SPECIFIC
POSITIONS AND FUNCTIONS,
ADJUTANTS GENERAL MAY AUTHORIZE OTHER APPROPRIATE ATTIRE. . . ."
THE REGULATION GOVERNING THE WEARING OF UNIFORMS BY TECHNICIANS
BETWEEN JANUARY 1, 1969, AND MARCH 1, 1970, WAS IDENTICAL TO NGR 690-2,
PARAGRAPH 2-5 AS QUOTED ABOVE. THE APPROPRIATE PREDECESSOR REGULATION
COVERING THE WEARING OF UNIFORMS WAS IN EFFECT FROM 1964 TO JANUARY 1,
1969, AND PROVIDED:
"ARMY AIR DEFENSE TECHNICIANS ARE REQUIRED TO WEAR AUTHORIZED ARADCOM
SHOULDER SLEEVE
INSIGNIA AND THE UNIFORM PRESCRIBED BY THE DEFENSE COMMANDER. ALL
OTHER TECHNICIANS WILL WEAR
THE UNIFORM PRESCRIBED BY THE STATE ADJUTANT GENERAL."
THE UNION RELIED UPON PAST PRACTICE TO SUPPORT THEIR POSITION ON
THEIR PROPOSAL RELATIVE TO THE WEARING OF UNIFORMS AND THE USE OF
MILITARY TITLES. THE RECORD REVEALS THAT THE PAST PRACTICE WITH RESPECT
TO THE WEARING OF UNIFORMS AT ALL TIMES RELEVANT HERETO WAS THAT WHILE
ARMY NATIONAL GUARD AIR DEFENSE TECHNICIANS AND AIR NATIONAL GUARD
TECHNICIANS GENERALLY WORE THEIR UNIFORMS WHILE PERFORMING THEIR
TECHNICIAN DUTIES, ARMY NATIONAL GUARD TECHNICIANS GENERALLY DID NOT.
THE RECORD FURTHER REVEALS THAT WITH REGARD TO THE USE OF MILITARY
TITLES IN ORAL COMMUNICATIONS, THE GENERAL PRACTICE VARIED WIDELY
DEPENDING UPON THE CIRCUMSTANCES OF THE DISCUSSION, THE RANK OF THE
INDIVIDUALS INVOLVED AND THE DEGREE OF THE PARTIES PERSONAL FAMILIARITY.
THUS, TECHNICIANS FREQUENTLY WERE NOT REQUIRED AND INDEED DID NOT USE
RANK OR TITLES WHEN DISCUSSING BUSINESS MATTERS WITH FELLOW TECHNICIANS
OF THE SAME RANK OR BELOW. HOWEVER, IT WAS THE USUAL PRACTICE TO
ADDRESS A SUPERIOR, ESPECIALLY AN OFFICER, BY RANK. MOREOVER, IT IS
APPARENT THAT WHETHER THE UNIFORM WAS WORN DURING WORK HOURS AFFECTED
WHETHER OR NOT TITLES WERE USED DURING DISCUSSIONS. /7/
AS NEGOTIATIONS PROCEEDED THE PARTIES REACHED AGREEMENT ON VARIOUS
ITEMS OF DISCUSSION, DEFERRING DISCUSSION ON DISPUTED PROVISIONS TO
FUTURE SESSIONS. WHEN THE DISCUSSIONS TOUCHED THE PROPOSALS RELATIVE TO
THE WEARING OF UNIFORMS AND THE USE OF TITLES, THE ACTIVITY MAINTAINED
ITS POSITION THAT THE UNION'S PROPOSALS WERE CONTRARY TO REGULATIONS,
AND THE UNION CONTINUED TO SUPPORT ITS PROPOSALS BY RELYING ON PAST
PRACTICE. HOWEVER, THE PARTIES DID NOT ENGAGE IN ANY IN-DEPTH
DISCUSSION OF THESE ISSUES UNTIL THE EIGHT NEGOTIATING SESSION WHICH
OCCURRED ON MAY 21, 1971.
COLONEL MCCLURE TESTIFIED THAT IN EARLY MAY 1971 "IT CAME TO HIS
ATTENTION" THAT FOR THE ENTIRE LENGTH OF THE TECHNICIAN PROGRAM, UNITED
STATES PROPERTY IN FISCAL OFFICE (USP&FO) PERSONNEL /8/ HAD NOT COMPLIED
WITH WHAT HE BELIEVED TO BE STANDING POLICY AND PRACTICE WITH REGARD TO
THE USE OF MILITARY TITLES IN CORRESPONDENCE AND COMMUNICATIONS.
COLONEL MCCLURE FURTHER TESTIFIED THAT HE HAD NO INDICATION THAT ANY
OTHER ACTIVITY PERSONNEL WERE NOT USING MILITARY TITLES IN
CORRESPONDENCE AND COMMUNICATIONS. AFTER CONSULTATION WITH MAJOR
GENERAL BAKER, COLONEL MCCLURE ISSUED, ON MAY 5, 1971, EXECUTIVE OFFICER
AT THE USP&FO:
"1. REFERENCE IS MADE TO OUR TELEPHONE CONVERSATION OF 3 MAY 1971
REGARDING THE USE OF
MILITARY TITLES BY TECHNICIANS.
"2. THE POLICY OF DAMNA IS THAT IN ALL ACTIONS INVOLVING A MEMBER OF
THE ORGANIZED MILITIA
OF THE STATE OF NEW YORK, THE MILITARY TITLE OF THE INDIVIDUAL WILL
BE USED.
"3. THEREFORE ALL ACTIONS OR CORRESPONDENCE CONTAINING A REFERENCE
TO, OR SIGNATURE OF, AN
EXCEPTED TECHNICIAN SHOULD INDICATE HIS MILITARY GRADE."
COLONEL MCCLURE'S MEMORANDUM WAS APPARENTLY POSTED ON THE FACILITY'S
BULLETIN BOARD TOGETHER WITH A MEMORANDUM FROM COLONEL HOLSCLAW'S OFFICE
DATED MAY 10, 1971, WHICH STATED THAT "MILITARY TITLES WILL BE SHOWN ON
ALL CORRESPONDENCE" AND "ALL MILITARY PERSONNEL SHALL BE ADDRESSED BY
RANK" /9/ A SIMILAR MEMORANDUM DATED MAY 11, 1971, FROM COLONEL GANNON,
ADMINISTRATIVE ASSISTANT, USP&FO TO "ALL LEVEL SUPERVISORS" WAS ALSO
POSTED ON THE FACILITY'S BULLETIN BOARD. THAT MEMORANDUM STATES AS
FOLLOWS:
"A RECENT DIRECTIVE ANNOUNCED THAT ALL MEMBERS OF THE NEW YORK ARMY
NATIONAL GUARD EMPLOYED
AS FEDERAL TECHNICIANS WOULD USE THEIR NATIONAL GUARD TITLES IN
CORRESPONDENCE AND IN BUSINESS
DISCUSSIONS.
"ATTACHED HERETO IS A LIST OF THE INDIVIDUALS EMPLOYED AS TECHNICIANS
IN THE USP&FO-NEW
YORK WHO ARE MEMBERS OF THE NYARNG. THE SECOND COLUMN INDICATES THE
RANK WHICH WILL BE SHOWN
ON ALL CORRESPONDENCE. THE THIRD COLUMN INDICATES THE MANNER IN
WHICH THESE INDIVIDUALS WILL
BE ADDRESSED ORALLY." /10/
THEREAFTER THE ACTIVITY'S 42ND INFANTRY DIVISION /11/ ISSUED A
"WEEKLY BULLETIN" DATED MAY 18, 1971, WHICH ANNOUNCED INTER ALIA,
"A. ALL MEMBERS OF THE 42ND INFANTRY DIVISION EMPLOYED AS FEDERAL
TECHNICIANS WILL USE
THEIR NATIONAL GUARD MILITARY TITLES IN ALL CORRESPONDENCE AND
BUSINESS DISCUSSIONS, AND
"B. WHEN ANSWERING THE TELEPHONE, TECHNICIANS IN ADDITION TO
INDICATING THE UNIT THEY
REPRESENT WILL ANNOUNCE BOTH THEIR NAME AND MILITARY RANK."
THE FIRST NEGOTIATING MEETING AFTER THE DISTRIBUTION OF THE ABOVE
DIRECTIVES TO THE USP&FO AND THE 42ND INFANTRY DIVISION OCCURRED ON MAY
21, 1971. AT THIS MEETING FREDERICK S. TEDESCO, THE UNION'S NEW YORK
STATE CHAIRMAN, CHIEF NEGOTIATOR AND A UNIT EMPLOYEE, CHARGED THE
ACTIVITY WITH HAVING CHANGED ITS POLICY WITH REGARD TO THE USE OF RANK
BY UNIT EMPLOYEES AT THE FACILITIES IN QUESTION. CHAIRMAN TEDESCO
OBJECTED TO THE UNION RECEIVING NO ADVANCE NOTICE OF THE ALLEGED CHANGE
IN POLICY AND CONTENDED THAT THE CHANGE SHOULD NOT HAVE BEEN PUT INTO
EFFECT WHILE THE MATTER WAS BEING NEGOTIATED. THE ACTIVITY TOOK THE
POSITION THAT THE ANNOUNCEMENTS DID NOT CONSTITUTE A CHANGE IN POLICY
BUT WERE MERELY A REITERATION OF EXISTING POLICY AND PRACTICE.
THE EVIDENCE REVEALS THAT ON APRIL 1, 1966, A MEMORANDUM WAS SENT TO
ALL USP&FO-NEW YORK PERSONNEL FROM COLONEL HOLSCLAW RELATIVE TO MILITARY
CORRESPONDENCE ORIGINATING WITHIN THE OFFICE OF USP&FO. THAT MEMORANDUM
PROVIDES INTER ALIA AS FOLLOWS:
"OFFICERS AND WARRANT OFFICERS CURRENTLY MEMBERS OF THE NEW YORK ARMY
OR AIR NATIONAL GUARD
WILL USE THEIR MILITARY RANK. NON NATIONAL GUARD PERSONNEL WILL USE,
AS APPROPRIATE, MR.,
MRS. OR MISS. ENLISTED PERSONNEL OF THE ARMY OR AIR NATIONAL GUARD
PERSONNEL MAY USE THEIR
MILITARY RANK OR THE PREFIX OF MR., AT THEIR OPTION. HOWEVER, ONCE
SELECTED, CONTINUITY OF
THE PREFIX CHOSEN SHOULD BE MAINTAINED."
OTHER THAN AS STATED ABOVE, THERE EXISTED NO OTHER SPECIFIC
REGULATION GOVERNING THE USE OF MILITARY RANK OR TITLES BY TECHNICIANS
AT THE USP&FO OR THE 42ND INFANTRY DIVISION.
BASED UPON THE RECORD EVIDENCE I FIND THAT PRIOR TO THE
AFOREMENTIONED DIRECTIVES DISTRIBUTED TO TECHNICIANS IN MAY OF 1971, THE
POLICY AT THE USP&FO WITH REGARD TO THE USE OF MILITARY TITLES IN
WRITTEN CORRESPONDENCE PROVIDED TECHNICIANS WITH AN OPTION AS SET FORTH
IN COLONEL HOLSCLAW'S MEMO OF APRIL 1, 1966. AS TO THE USE OF MILITARY
TITLES BY TECHNICIANS IN ORAL COMMUNICATIONS, I FIND THAT AT THE USP&FO
AND THE 42ND INFANTRY DIVISION THE PREVAILING PRACTICE VARIED FROM
INDIVIDUAL TO INDIVIDUAL AND DID NOT PRECLUDE TECHNICIANS ADDRESSING ONE
ANOTHER WITHOUT USING RANK OR TITLE WHILE PERFORMING THEIR CIVILIAN
TECHNICIAN DUTIES, AT LEAST AS TO CONVERSATIONS BETWEEN TECHNICIANS OF
SIMILAR RANK AND WHEN TECHNICIANS OF A HIGHER RANK ADDRESSED TECHNICIANS
OF A LOWER RANK. /12/
THE NEXT NEGOTIATING SESSION WAS CONDUCTED ON JUNE 2, 1971. BY THIS
TIME NUMEROUS CONTRACT PROPOSALS HAD BEEN AGREED TO. HOWEVER, THE
PARTIES HAD NOT COME TO AGREEMENT ON FOUR ISSUES: (1) WEARING OF
UNIFORMS; (2) USE OF MILITARY TITLES; (3) LOWER GRADE TECHNICIANS
TRAINING HIGHER GRADE TECHNICIANS; AND (4) NATIONAL GUARD STATUS OF A
TECHNICIAN ON LEAVING THE TECHNICIAN PROGRAM. WITH REGARD TO THE ISSUES
OF UNIFORM AND TITLES, THE PARTIES AT THE JUNE 2 MEETING ADHERED TO
THEIR INITIAL POSITIONS. THE ACTIVITY INTERPRETED NGR 690-2, PARAGRAPH
2-5 SO AS TO RENDER NON-NEGOTIABLE THE UNION'S PROPOSAL SINCE IT WOULD
HAVE THE EFFECT OF TAKING ALL TECHNICIANS OUT OF UNIFORM. IT WAS THE
ACTIVITY'S POSITION THAT THE REGULATION SPOKE FOR ITSELF-- THAT UNIFORM
WEARING WAS REQUIRED AND EXCEPTIONS COULD BE GRANTED ONLY ON THE BASIS
OF INAPPROPRIATENESS. HOWEVER, RESPONDENT DID NOT FEEL THAT ANY
TECHNICIAN FUNCTION OR POSITION WAS INAPPROPRIATE. RANK WAS INHERENTLY
TIED TO AND FOLLOWED THE WEARING OF UNIFORMS. THE UNION CONTENDED THAT
THEIR PROPOSAL WAS NEGOTIABLE AND BASED ITS POSITION ON PAST PRACTICE.
ACCORDINGLY SINCE BOTH PARTIES RIGIDLY MAINTAINED THEIR POSITIONS, THE
MEETING ADJOURNED WITHOUT ANY AGREEMENT ON THE UNRESOLVED MATTERS. THE
PARTIES AGREED THAT AN IMPASSE HAD BEEN REACHED.
THE NEXT NEGOTIATING SESSION OCCURRED ON SEPTEMBER 2, 1971. AT THIS
MEETING THE PARTIES POSITIONS STILL DID NOT VARY. HOWEVER, THE ACTIVITY
SUGGESTED THAT THE UNION REWORD ITS PROPOSAL ON UNIFORMS AND SUCH
PROPOSAL WOULD BE DISCUSSED WITH MAJOR GENERAL BAKER. BY LETTER DATED
SEPTEMBER 11, 1971, /13/ CHAIRMAN TEDESCO INFORMED COLONEL MCCLURE THAT
ALTHOUGH IT WAS AGREED AT THE SEPTEMBER 2, 1971, NEGOTIATING SESSION
THAT THE UNION WOULD SUBMIT AN ALTERNATE PROPOSAL CONCERNING THE WEARING
OF UNIFORMS, SINCE THE ACTIVITY DID NOT IN ANY WAY ALTER ITS POSITION
FROM THAT PREVIOUSLY STATED, THE UNION'S NEGOTIATING TEAM DECIDED NOT TO
SUBMIT A REVISED PROPOSAL BUT RATHER WOULD "GO TO IMPASSE" UNLESS THE
ACTIVITY FELT THAT FURTHER NEGOTIATIONS WOULD BE FRUITFUL, OR IF IT
DESIRED TO SUBMIT THEIR OWN MODIFICATIONS ON ANY OF THE FOUR POINTS
REMAINING IN DISPUTE. BY LETTER DATED SEPTEMBER 24, 1971, COLONEL
MCCLURE INFORMED CHAIRMAN TEDESCO INTER ALIA:
"THE CHIEF OF STAFF TO THE GOVERNOR DOES NOT CONSIDER THAT THE
WEARING OF THE UNIFORM IS A
NEGOTIABLE MATTER AND THEREFORE, NOT AN ITEM FOR CONTRACT DISCUSSION.
THIS, OF COURSE, WOULD
PERTAIN ALSO TO THE USE OF MILITARY RANK. . . .
"IT IS THEREFORE PROPOSED THAT THE PRESENTLY AGREED UPON ARTICLES AND
SECTIONS CONSTITUTE
THE CONTRACT AND THAT IT BE SIGNED BY UNION AND MANAGEMENT AS FINAL
AGREEMENT."
ON SEPTEMBER 28, 1971, THE UNION SENT A REQUEST TO THE FEDERAL
SERVICE IMPASSES PANEL ASKING IT TO CONSIDER THE PARTIES NEGOTIATION
IMPASSE. BEFORE THE PANEL THE ACTIVITY MAINTAINED THAT THE UNION'S
PROPOSAL THAT MILITARY TITLES NOT BE USED WAS ALSO NOT NEGOTIABLE,
CONTENDING THAT SINCE UNIFORMS ARE TO BE WORN BY REGULATION, "IT STANDS
TO REASON" THAT MILITARY RANK MUST ALSO BE USED.
BEFORE THE PANEL THE UNION CONTENDED THAT THE WEARING OF UNIFORMS WAS
A NEGOTIABLE MATTER POINTING TO THE FACT THAT ORIGINALLY THE ACTIVITY
MADE A COUNTERPROPOSAL ON THE ITEM. IN ADDITION, THE UNION REPRESENTED
THAT A CONTRACT HAD BEEN SIGNED BY THE STATE ADJUTANT GENERAL FOR THE
STATE OF ILLINOIS WHICH CONTAINED A CLAUSE RELATING TO THE WEARING OF
UNIFORMS. THAT CLAUSE PROVIDED FOR THE WEARING OF MILITARY UNIFORMS AND
ALLOWED FOR EXCEPTIONS (A) ON OCCASIONS WHEN THE ADJUTANT GENERAL DEEMED
THE WEARING OF A MILITARY UNIFORM INAPPROPRIATE AND (B) IN CERTAIN
DESIGNATED FUNCTIONAL AREAS WHERE THE WEARING OF MILITARY UNIFORMS OR
CIVILIAN ATTIRE WAS OPTIONAL. THEREAFTER, BY LETTER DATED NOVEMBER 10,
1971, THE PANEL CONCLUDED THAT SINCE THE PARTIES DID NOT HAVE THE
OPPORTUNITY TO CONSIDER THE ILLINOIS CONTRACT LANGUAGE, A RE-EVALUATION
BY THE PARTIES OF THEIR POSITIONS ON THE ISSUES IN LIGHT OF SUCH LABOR
AGREEMENT COULD CONTRIBUTE TO THE RESOLUTION OF THE IMPASSE. THE PANEL
DETERMINED THAT NEGOTIATIONS SHOULD BE RESUMED.
THE PARTIES RETURNED TO NEGOTIATIONS ON NOVEMBER 23, 1971. AT THIS
TIME VINCENT J. PATERNO, NATIONAL PRESIDENT OF THE ASSOCIATION OF
CIVILIAN TECHNICIANS, ENTERED NEGOTIATIONS. DURING THIS SESSION THE
UNION ATTEMPTED TO MODIFY ITS ORIGINAL POSITION ON UNIFORMS BY OFFERING
AN ORAL "EXPLORATORY" PROPOSAL DEALING WITH TECHNICIAN'S FUNCTIONS WHICH
MIGHT BE EXCEPTED FROM THE REQUIREMENT THAT TECHNICIANS WEAR UNIFORMS,
BASED UPON THE LANGUAGE OF NGR 690-2. OTHER MATTERS SUCH AS LOCKER
SPACE, BADGES, CIVILIAN DRESS CLOTHES AND UNIFORM ALLOWANCES WERE ALSO
DISCUSSED. THE ACTIVITY REJECTED THE UNION'S PROPOSAL CONTENDING THAT
THE EXCEPTIONS AS DEFINED BY THE UNION WOULD PUT VIRTUALLY ALL
TECHNICIANS OUT OF UNIFORM. TOWARD THE END OF THE MEETING THE PARTIES
DISCUSSED THE POSSIBILITY OF SUBSEQUENTLY REVIEWING EACH TECHNICIAN
POSITION REGARDING THE WEARING OF THE UNIFORM. /14/ THE UNION WAS TOLD
BY THE ACTIVITY THAT THERE COULD BE NO NEGOTIATIONS WHICH WOULD RESULT
IN ALL THE TECHNICIANS BEING TAKEN OUT OF UNIFORM AND THE UNION WAS
ENCOURAGED TO SUBMIT ANOTHER PROPOSAL. THEREAFTER, IN DECEMBER 1971 THE
UNION MAILED THE FOLLOWING PROPOSAL TO THE ACTIVITY:
"1. ARMY NATIONAL GUARD
A. ALL TECHNICIANS IN THE ARMY NATIONAL GUARD PERFORMING WORK OF AN
ADMINISTRATIVE NATURE
WILL WEAR CIVILIAN CLOTHING DURING THEIR TECHNICIAN DUTY TIME. SUCH
CIVILIAN CLOTHING WILL BE
IN GOOD TASTE AND WILL BE NEAT AND CLEAN AND WILL BE APPROPRIATE TO
THEIR JOB ASSIGNMENT AND
POSITION.
B. ALL TECHNICIANS IN THE ARMY NATIONAL GUARD ASSIGNED TO SHOPS,
ATEP, OMS'S, WAREHOUSES,
WHO PERFORM WORK OF A NATURE OTHER THAN ADMINISTRATIVE WILL WEAR A
STANDARD WORK OUTFIT
MUTUALLY AGREED UPON BY MANAGEMENT AND THE UNION, BUT BEARING NO
MILITARY RANK OR INSIGNIA.
"2. AIR DEFENSE
A. ALL AIR DEFENSE TECHNICIANS WILL WEAR A FATIGUE TYPE (OG-107)
OUTFIT BEARING NO
INSIGNIA AND NO RANK BUT WITH A STANDARD PATCH BEARING THE LAST NAME
OVER THE LEFT BREAST
POCKET AND A PATCH BEARING THE WORDS 'NATIONAL GUARD MISSILE
TECHNICIAN' OVER THE RIGHT
BREAST POCKET. SAID CLOTHING WILL BE MAINTAINED IN A CLEAN AND NEAT
MANNER COMMENSURATE WITH
JOB ASSIGNMENT.
"3. AIR NATIONAL GUARD
A. MILITARY UNIFORMS TO BE OPTIONAL TO EACH INDIVIDUAL ON A DAILY
BASIS. WHEN OPTION IS
FOR CIVILIAN ATTIRE, IT WILL BE NEAT AND ORDERLY. SHIRT, TIE AND
JACKET WILL BE WORN.
B. FOUL WEATHER GEAR AND PROTECTIVE CLOTHING IS PERMITTED TO BE WORN
WITH BOTH THE
MILITARY UNIFORM AND THE PRESCRIBED WORK CLOTHES INDICATED IN THE
PRECEDING PARAGRAPHS
(SECTION . . . ).
"4. THE MILITARY UNIFORM MAY BE WORN TO ALL SOCIAL FUNCTIONS (BALLS,
REVIEWS, DANCES) AS
DEEMED APPROPRIATE.
"1. MILITARY RANK WILL ONLY BE USED WHEN INDIVIDUAL IS WEARING THE
MILITARY UNIFORM."
THE NEXT NEGOTIATING SESSION WAS CONDUCTED ON JANUARY 4, 1972. THE
ACTIVITY REJECTED THE DECEMBER PROPOSAL SINCE IT WAS THE SAME AS THE
UNION'S ORIGINAL PROPOSAL AND ACCORDINGLY UNACCEPTABLE. ONE OF THE
ACTIVITY'S NEGOTIATORS SUGGESTED PREPARING A LIST AND REVIEWING EACH
PARTICULAR JOB BY FUNCTION AND THEREBY DETERMINING WHETHER WEARING THE
UNIFORM WOULD BE APPROPRIATE. COLONEL MCCLURE, THE ACTIVITY'S CHIEF
NEGOTIATOR, COUNTERMANDED THIS SUGGESTION BECAUSE OF THE GREAT LENGTH OF
TIME WHICH HE FELT WOULD BE INVOLVED DUE TO THE SUBSTANTIAL NUMBER OF
POSITIONS IN THE TECHNICIAN PROGRAM. AT THIS MEETING PRESIDENT PATERNO
MADE AN ORAL PROPOSAL BASED UPON THE EXCEPTIONS TO THE WEARING OF THE
UNIFORM THAT HAD BEEN IN EXISTENCE THROUGHOUT THE TIME TECHNICIANS HAD
BEEN GOVERNED BY NGR 690-2. THERE WAS NO MEETING OF THE MINDS DURING
THIS SESSION AND THE ACTIVITY THEREFORE INFORMED THE UNION THAT IT WOULD
REFER THE MATTER TO THE NATIONAL GUARD BUREAU FOR A NEGOTIABILITY
DETERMINATION. BY LETTER DATED FEBRUARY 2, 1972, PURSUANT TO SECTION
11(C)(2) OF THE ORDER AND RELEVANT DEPARTMENT OF DEFENSE DIRECTIVES, THE
ACTIVITY REQUESTED THAT THE NATIONAL GUARD BUREAU MAKE A DETERMINATION
AS TO THE NEGOTIABILITY OF THE FOUR UNION PROPOSALS THE PARTIES HAD NOT
YET RESOLVED WHICH INCLUDED THE WEARING OF UNIFORMS AND THE USE OF
MILITARY TITLES. THE ACTIVITY'S LETTER /15/ STATES INTER ALIA:
"1. THE ATTACHED PROPOSALS /16/ WERE SUBMITTED BY THE ASSOCIATION OF
CIVILIAN TECHNICIANS
AS ITEMS TO BE INCLUDED IN AN AGREEMENT BETWEEN THE ORGANIZATION AND
THE CHIEF OF STAFF TO THE
GOVERNOR OF NEW YORK. PREVIOUS SIMILAR PROPOSALS WERE THE SUBJECT OF
PRIOR COMMUNICATIONS
BETWEEN THIS DIVISION AND YOUR OFFICE.
"2. THIS DIVISION DOES NOT CONSIDER THE PROPOSALS AS NEGOTIABLE.
THE REASONS FOR THIS
ARE:
A. UNIFORMS. THE EXCEPTIONS PROPOSED ADD UP TO THE ENTIRE
TECHNICIAN FORCE.
B. MILITARY RANK. THE REQUIREMENT FOR THE UNIFORM MAKES THE USE OF
RANK A NECESSITY. A
SIMILAR CONCLUSION WAS REACHED IN YOUR TWX OF 24 NOVEMBER 1971. . .
.
"3. THE LABOR ORGANIZATION DISPUTES THE POSITION OF MANAGEMENT ON
THESE ISSUES AND
MAINTAINS THAT ALL FOUR ITEMS ARE NEGOTIABLE. . . ."
PRESIDENT PATERNO RECEIVED A COPY OF THE ACTIVITY'S LETTER TO THE
NATIONAL GUARD BUREAU /17/ AND THEREAFTER, BY LETTER DATED FEBRUARY 10,
1972, PRESIDENT PATERNO REQUESTED THE FEDERAL SERVICE IMPASSES PANEL TO
SEND BOTH PARTIES BACK TO THE BARGAINING TABLE WITH DIRECTIONS TO
NEGOTIATE WITH THIRD PARTY ASSISTANCE. THE LETTER DISPUTED THE
ACTIVITY'S CLAIM THAT THE "ATTACHED" PROPOSALS WERE THE UNION'S FINAL
PROPOSALS.
ON FEBRUARY 24, 1972, THE NATIONAL GUARD BUREAU RESPONDED TO THE
ACTIVITY'S REQUEST FOR A NEGOTIABILITY DETERMINATION OF THE UNION'S
PROPOSALS. THE REPLY INDICATED THAT THE BUREAU RECEIVED A COPY OF
PRESIDENT PATERNO'S REQUEST TO THE FEDERAL SERVICE IMPASSES PANEL BUT
THE BUREAU COULD NOT MAKE A NEGOTIABILITY DETERMINATION ON THE PROPOSALS
SINCE THEY APPARENTLY WERE STILL IN QUESTION WITH REGARD TO FINALITY.
THE BUREAU FURTHER SUGGESTED THAT BOTH PARTIES CLEAR UP THE ISSUES AND
"IF A QUESTION OF NEGOTIABILITY STILL EXIST SUBMIT THE PROPOSALS AS
OUTLINED IN SECTION 11(C) OF EXECUTIVE ORDER 11491."
THEREAFTER THE PARTIES MET AGAIN ON MARCH 23, 1972. /18/ THE FOUR
UNRESOLVED ISSUES STILL REMAINED IN DISPUTE. AT THIS MEETING THE
ACTIVITY INDICATED THAT IT WOULD BE WILLING TO ALLOW ARMY NATIONAL GUARD
MAINTENANCE MECHANICS AND TECHNICIANS EMPLOYED AT THE USP&FO TO REMAIN
OUT OF UNIFORM, IF THE UNION WAS WILLING TO SIGN AN AGREEMENT WHICH
WOULD PROVIDE THAT THE REMAINDER OF THE ARMY NATIONAL GUARD
ADMINISTRATIVE SUPPLY TECHNICIANS WOULD BE REQUIRED TO WEAR THE UNIFORM.
/19/ THE UNION SUGGESTED THAT MECHANICS PERFORMING SIMILAR WORK IN THE
AIR NATIONAL GUARD, WHO HISTORICALLY WORE THE UNIFORM, ALSO BE EXCEPTED
FROM THE UNIFORM REQUIREMENT. THE ACTIVITY REFUSED AND INSISTED THAT,
EXCEPT AS PROPOSED, ALL OTHER UNIT EMPLOYEES WOULD BE REQUIRED TO WEAR
THE UNIFORM. THE UNION REJECTED THE ACTIVITY'S PROPOSAL SINCE THE
EFFECT WOULD BE TO REDUCE THE TOTAL NUMBER OF UNIT EMPLOYEES CURRENTLY
NOT WEARING THE UNIFORM. DISCUSSION ON THE ISSUE CONTINUED AND
PRESIDENT PATERNO WITHOUT CAUCUS, PROPOSED THAT THE PARTIES SIGN A
CONTRACT WHICH WOULD PROVIDE THAT THE PEOPLE WHO WERE PRESENTLY OUT OF
UNIFORM REMAIN OUT OF UNIFORM AND A JOINT STUDY GROUP BE FORMED WHICH
WOULD REVIEW UNIT POSITIONS AND DECIDE WHICH POSITIONS WOULD NOT REQUIRE
UNIFORMS. THE ACTIVITY COUNTERED WITH A PROPOSAL THAT ALL EMPLOYEES
IMMEDIATELY GET INTO UNIFORM AND THEN A STUDY GROUP WOULD BE FORMED BUT
FINAL DECISION ON EXCEPTIONS WOULD REST WITH THE CHIEF OF STAFF. THE
UNION CAUCUSED AND DECIDED TO WITHDRAW PATERNO'S PROPOSAL. THEREAFTER
THE DISCUSSION RETURNED TO THOSE POSITIONS WHICH MIGHT BE EXCEPTED FROM
THE UNIFORM REQUIREMENT. THE UNION BARGAINING TEAM ATTEMPTED TO EXPAND
ON THOSE PEOPLE WHO MIGHT BE EXCEPTED FROM THE WEARING OF UNIFORM BEYOND
ARMY NATIONAL GUARD TECHNICIANS AND THE ACTIVITY RESISTED. THE ACTIVITY
CONTENDED THAT THE EXCEPTIONS BECAME TOO BROAD AND THE SESSION "GOT
NOWHERE".
THE PARTIES MET AGAIN ON APRIL 13 AND 14, 1972. AT ONE OF THESE
MEETINGS THE UNION OFFERED AN "EXPLORATORY" PROPOSAL WHICH CONSISTED OF
A TWO PAGE WRITTEN PROPOSAL WITH REGARD TO THE WEARING OF THE MILITARY
UNIFORM. /20/ THE PROPOSAL HAD THE FOLLOWING INTRODUCTORY SENTENCE:
"THE MILITARY UNIFORM OF THE APPROPRIATE SERVICE, AND OF A TYPE
BEFITTING WORK OF SERVICES
TO BE ACCOMPLISHED SHALL BE WORN BY THE EMPLOYEES COVERED BY THIS
AGREEMENT EXCEPT AS PROVIDED
BELOW."
THEREAFTER THE PROPOSAL LISTED EXTENSIVE EXCEPTIONS. INDEED THE
UNION ADMITS THAT ALMOST ALL TECHNICIANS WOULD HAVE BEEN INCLUDED UNDER
THE EXCEPTIONS. ALTHOUGH THERE WAS SOME DISCUSSION OF THE PROPOSAL, THE
ACTIVITY WAS QUICK TO REALIZE THAT THE EXCEPTIONS INCLUDED PRACTICALLY
ALL TECHNICIANS AND ACCORDINGLY TOOK THE POSITION THAT THE PROPOSAL
AMOUNTED TO A BLANKET EXCEPTION TO THE WEARING OF UNIFORMS WHICH COULD
NOT BE GRANTED UNDER THE REGULATION. NEVERTHELESS, THE ACTIVITY'S
NEGOTIATORS INFORMED THE UNION THEY WOULD TAKE THE PROPOSAL AND SHOW
GENERAL BAKER WHAT HAD BEEN SUBMITTED.
ON MAY 22, 1972, THE PARTIES ENTERED THEIR SIXTEENTH NEGOTIATING
SESSION. AT THIS MEETING THE ACTIVITY PRESENTED THE FOLLOWING PROPOSAL:
"ARTICLE-- UNIFORM REQUIREMENTS
SECTION 1. TECHNICIANS IN THE EXCEPTED SERVICES ARE REQUIRED TO WEAR
THE MILITARY UNIFORM
APPROPRIATE TO THEIR SERVICE AND FEDERALLY RECOGNIZED GRADE WHEN
PERFORMING TECHNICIAN DUTIES,
PURSUANT TO PARAGRAPH 2-5, NGR 690-2/ANGR 40-01.
SECTION 2. THE CHIEF OF STAFF TO THE GOVERNOR, BY THE PROVISIONS OF
PARAGRAPH 2-5, NGR
690-2/ANGR 40-01, IS PERMITTED TO AUTHORIZE OTHER APPROPRIATE ATTIRE
WHEN HE DEEMS THE UNIFORM
IS NOT APPROPRIATE FOR SPECIFIC POSITIONS AND FUNCTIONS.
SECTION 3. THOSE TECHNICIANS WHO CURRENTLY WEAR THE UNIFORM WILL
CONTINUE TO DO
SO. EFFECTIVE 1 SEPTEMBER 1972, ALL TECHNICIANS, REGARDLESS OF
SERVICE POSITION OR FUNCTION
WILL WEAR THE PRESCRIBED UNIFORM EXCEPT THOSE WHO HAVE BEEN EXPRESSLY
AUTHORIZED BY THE CHIEF
OF STAFF TO THE GOVERNOR TO WEAR OTHER APPROPRIATE ATTIRE.
"SECTION 4. THOSE TECHNICIANS TO BE EXCEPTED FROM WEARING THE
UNIFORM AND TO BE AUTHORIZED
TO WEAR OTHER APPROPRIATE ATTIRE WILL BE DETERMINED AS FOLLOWS:
A). IT IS AGREED THAT AS SOON AS POSSIBLE AFTER THIS AGREEMENT HAS
BEEN SIGNED BY BOTH
PARTIES, BUT NO LATER THAN TEN (10) DAYS AFTER THE SIGNING, A STUDY
GROUP SHALL CONSIDER
TECHNICIAN POSITIONS AND FUNCTIONS IN THE EXCEPTED SERVICE, AND WILL
RECOMMEND TO THE CHIEF OF
STAFF TO THE GOVERNOR WHICH OF THE POSITIONS AND FUNCTIONS NEED NOT
BE PERFORMED IN MILITARY
UNIFORM.
B). THE STUDY GROUP SHALL BE COMPOSED OF SIX MEMBERS, THREE
APPOINTED BY THE EMPLOYEE
ORGANIZATION AND THREE BY THE EMPLOYER. THE GROUP SHALL ELECT A
MEMBER TO PERFORM THE DUTIES
OF CHAIRMAN.
C). THE STUDY GROUP SHALL CONSIDER THE POSITIONS AND FUNCTIONS OF
THE TECHNICIANS IN THE
EXCEPTED SERVICE OTHER THAN THOSE IN AIR DEFENSE UNITS, AND DETERMINE
THOSE FOR WHICH OTHER
APPROPRIATE ATTIRE SHOULD BE AUTHORIZED. IF THIS AGREEMENT IS SIGNED
ON OR BEFORE 1 JUNE 1972
THE STUDY GROUP SHALL SUBMIT FINDINGS AND RECOMMENDATIONS WITHIN
SIXTY DAYS OF THE SIGNING OR
1 AUGUST 1972 WHICHEVER IS LATER, WITH RESPECT TO EACH TECHNICIAN
POSITION AND FUNCTION FOR
WHICH THE WEARING OF THE UNIFORM IS NOT CONSIDERED APPROPRIATE AND
WHAT OTHER ATTIRE IN LIEU
THEREOF IS APPROPRIATE. IF THE SIGNING OCCURS AFTER 1 JUNE 1972, THE
STUDY GROUP SHALL SUBMIT
ITS REPORT NO LATER THAN SIXTY DAYS THEREAFTER. THE FINDINGS AND
RECOMMENDATIONS WILL BE
ADDRESSED TO THE CHIEF OF STAFF TO THE GOVERNOR.
D). IF THE SIGNING OCCURS ON OR BEFORE 1 JUNE 1972, THE CHIEF OF
STAFF TO THE GOVERNOR
AGREES WITHIN NINETY DAYS OF THE SIGNING OR 1 SEPTEMBER 1972,
WHICHEVER IS LATER TO ANNOUNCE
HIS DECISION, IF THE SIGNING OCCURS AFTER 1 JUNE 1972, HIS DECISION
WILL BE ANNOUNCED NO LATER
THAN NINETY DAYS THEREAFTER.
E.) THE DECISION OF THE CHIEF OF STAFF TO THE GOVERNOR SHALL BE
FINAL."
THE UNION REJECTED THE ACTIVITY'S PROPOSAL SINCE IT GAVE NOTHING
OTHER THAN AN AGREEMENT TO DISCUSS EXCEPTIONS AND LEFT WITH THE CHIEF OF
STAFF THE FINAL DECISION AS TO WHO WOULD BE EXCEPTED FROM THE UNIFORM
REQUIREMENT. THE FEDERAL MEDIATOR SUGGESTED THAT THE PARTIES GO THROUGH
TECHNICIAN FUNCTIONS, POSITION BY POSITION, WITHIN THE FRAME WORK OF NGR
690-2. COLONEL MCCLURE EXPRESSED THE OPINION THAT GOING THROUGH THE
VARIOUS POSITIONS WOULD TAKE TOO MUCH TIME AND REQUESTED THAT THE UNION
COME BACK TO THE NEXT SESSION WITH PROPOSALS FOR EXCEPTIONS WHICH THE
ACTIVITY WOULD ENTERTAIN IF BASED ON CRITERIA THAT THE JOB COULD NOT BE
DONE IN UNIFORM OR THAT WEARING THE UNIFORM WOULD BE DETRIMENTAL TO
HEALTH OR SAFETY. THE ACTIVITY MADE CLEAR THAT NGR 690-2 WOULD BE
IMPLEMENTED ON SEPTEMBER 1, AND BY THAT DATE ALL TECHNICIANS WOULD BE IN
UNIFORM UNLESS THE UNION CAME UP WITH VALID EXCEPTIONS. APPARENTLY
THERE WAS SOME ATTEMPT TO GO OVER VARIOUS POSITIONS BUT BECAUSE OF
COLONEL MCCLURE'S CONCERN WITH THE TIME INVOLVED TO GO THROUGH THE
VARIOUS POSITIONS, THE UNION SUGGESTED AND THE ACTIVITY AGREED TO
DISCUSS THE POSITIONS OF ADMINISTRATIVE SUPPLY TECHNICIAN AND GENERAL
MECHANICS AT THE NEXT MEETING. HOWEVER, THE ACTIVITY STRESSED THE ABOVE
STATED CRITERIA FOR EXCEPTIONS.
ON JUNE 2, 1972, THE PARTIES MET AGAIN. AT THIS MEETING THE UNION
SUBMITTED THE FOLLOWING PROPOSAL:
"THE FOLLOWING PROPOSAL SUBMITTED REGARDING THE WEARING OF THE
MILITARY UNIFORM. (SIC)
AST
1. AS A FEDERAL CIVILIAN EMPLOYEE WEARING OF THE MILITARY UNIFORM
DURING CIVILIAN WORK
HOURS WOULD TEND TO CREATE A FEELING OF UNEASINESS (SIC) DUE TO THE
FACT THAT MILITARY
PROTOCOL AND REGULATIONS WOULD PREVAIL RATHER THAN CIVILIAN
REGULATIONS.
GENERAL MECH
1. AS A FEDERAL CIVILIAN EMPLOYEE WEARING OF THE MILITARY UNIFORM
DURING CIVILIAN WORK
HOURS WOULD TEND TO CREATE A FEELING OF UNEASINESS (SIC) DUE TO FACT
THAT MILITARY PROTOCOL
AND REGULATIONS WOULD PREVAIL RATHER THAN CIVILIAN REGULATIONS."
THERE WAS CONSIDERABLE DISCUSSION AS TO THE ADMINISTRATIVE SUPPLY
TECHNICIAN AND MECHANIC POSITIONS. HOWEVER, THE ACTIVITY WAS OF THE
OPINION THAT THE UNION WAS MERELY PRESENTING HOW WELL THE JOB COULD BE
PERFORMED IN CIVILIAN CLOTHES AND NOT THAT THE JOB COULD NOT BE
PERFORMED IN UNIFORM WHICH, COLONEL MCCLURE UNDERSTOOD WAS THE PURPOSE
OF THE MEETING. ACCORDINGLY, COLONEL MCCLURE INFORMED THE UNION
REPRESENTATIVES THAT IF THEY WERE NOT GOING TO PRESENT THEIR ARGUMENTS
ON THE BASIS OF A TECHNICIAN'S INABILITY TO PERFORM THE JOB IN UNIFORM,
THERE WAS NO NEED FOR FURTHER DISCUSSION AND THE MEETING WAS ADJOURNED
WITHOUT AGREEMENT ON THE UNIFORM ISSUE. /21/
THE NEXT NEGOTIATING SESSION WAS CONDUCTED ON JULY 22, 1972. AT THIS
TIME THE UNION PRESENTED THE FOLLOWING PROPOSAL WITH REGARD TO THE
WEARING OF UNIFORMS: /22/
"KNOWING THE DIFFICULTY THAT HAS SERVED TO HAMPER FINAL CONTRACT
TERMS WITH THE CHIEF OF
STAFF TO THE GOVERNOR OF THE STATE OF NEW YORK, IN THE TERMS OF
DIRECT EXPERIENCE ON THE
NEGOTIATING TEAM FOR SOME OF THE SESSIONS, AND CONCERNED THAT THE
SITUATION DOES NOT PROVOKE
RASH OR INJUDICIOUS ACTIONS THAT COULD SERVE TO DESTROY
LABOR-MANAGEMENT RELATIONS, I AM
TAKING THE LIBERTY OF SUGGESTING A PROPOSAL THAT COULD MAINTAIN
EQUITY, IF ACCEPTED, AND ALLOW
RATIONAL PROCESSES TO DEVELOP.
"THE EMPLOYER AND THE UNION, IN RECOGNITION OF THE DIFFICULTIES THAT
HAVE DEVELOPED IN THE
ATTEMPTS TO CONTRACTUALLY DEFINE THE FUNCTIONS AND SPECIFIC POSITIONS
DEEMED INAPPROPRIATE FOR
THE WEARING OF THE MILITARY UNIFORM BY TECHNICIANS, DO HEREIN AGREE
THAT THE UNION AND THE
EMPLOYER SHALL STUDY THE MATTER IN FULL DEGREE. THESE STUDIES SHALL
BE CONDUCTED BOTH
INDEPENDENTLY AND THROUGH SUCH CONSULTIVE PROCEDURES THAT MAY
MUTUALLY BE DECIDED UPON. THESE
STUDIES SHALL BE PRESENTED TO THE CHIEF OF STAFF TO THE GOVERNOR, AND
TO THE UNION, NO LATER
THAN FOUR MONTHS FROM THE DATE OF THIS AGREEMENT. SUCH EXCEPTIONS TO
THE WEARING OF THE
UNIFORM THAT HAVE BEEN IN EFFECT DURING THE NEGOTIATION OF THIS
CONTRACT SHALL
CONTINUE. EITHER PARTY SHALL HAVE THE RIGHT, WITH OR WITHOUT MUTUAL
AGREEMENT, TO OPEN THIS
AND OTHER EFFECTED SECTIONS OF THE CONTRACT, SIX MONTHS FROM THE DATE
OF OFFICIAL APPROVAL OF
THE CONTRACT.
"IT IS RECOGNIZED THAT THIS PROPOSAL DOES NOT MEET THE DESIRES OF
YOUR MEMBERSHIP, IN TERMS
OF TIME OR COVERAGE, BUT I AM CERTAIN THAT IF IT IS EXPLAINED TO THEM
AS AN ATTEMPT TO UTILIZE
THE PROCEDURES OF GOOD AND RESPONSIBLE LABOR-MANAGEMENT RELATIONS AND
TO AVOID CRISIS AND THE
ATTITUDES OF CONFRONTATION, THEY WILL RATIFY IT IN GOOD FAITH. YOUR
WELL KNOWN PERSUASIVE
ABILITIES ARE CERTAIN TO PREVAIL.
"IT IS NOT COMMON FOR THE NATIONAL TO ENTER THE NEGOTIATION PROCESS,
AS YOU KNOW, BUT THE
OBVIOUS INTENSITY OF THE DISPUTE DICTATES AN ATTEMPT TO ASSIST.
OTHER MEMBERS OF THE
EXECUTIVE BOARD ARE IN AGREEMENT."
DURING THE MEETING THE UNION ALSO SUBMITTED THE FOLLOWING WRITTEN
PROPOSAL WITH REGARD TO THE USE OF MILITARY RANK AND COURTESY.
"A. MILITARY RANK WILL BE ONLY REQUIRED WHEN THE EMPLOYEE IS
ACTUALLY PERFORMING MILITARY
DUTIES.
"B. MANAGEMENT RECOGNIZES THE SEPARATE STATUS OF UNION OFFICIALS
WHEN CONDUCTING UNION
BUSINESS AND THE USE OF MILITARY COURTESY SHALL NOT BE USED TO IMPAIR
THE RIGHTS GIVEN SUCH
UNION OFFICIALS UNDER THE EXECUTIVE ORDER 11616 AND ITS PREDECESSOR
ORDERS."
AFTER SOME DISCUSSION ON THE UNIFORM AND RANK ISSUES, THE ACTIVITY
AGREED TO STUDY THE UNION'S PROPOSALS AND DISCUSS THE MATTER WITH THE
CHIEF OF STAFF WHO WOULD HAVE TO MAKE A DETERMINATION ON THE MATTER.
SUBSEQUENTLY, COLONEL MCCLURE SENT TO CHAIRMAN TEDESCO THE FOLLOWING
LETTER DATED JULY 28, 1972:
"1. THE PROPOSAL SUBMITTED BY YOU ON 22 JULY 1972, REGARDING THE
WEARING OF UNIFORMS BY
TECHNICIANS HAS BEEN CAREFULLY REVIEWED BY THIS DIVISION.
"2. FOLLOWING CONSIDERATION OF THE NEGOTIATIONS TO DATE, THE
DIRECTIVE OF THE NATIONAL
GUARD BUREAU AND THE CHANGING CIRCUMSTANCES AFFECTING RECRUITING, THE
CONCLUSION HAS BEEN
REACHED THAT NO PARTICULAR PURPOSE IS SERVED BY FURTHER DELAYING THE
IMPLEMENTING OF THE
REGULATION CONCERNING THE WEARING OF THE UNIFORM.
"3. WHILE THERE IS NO OBJECTION TO THE IDEA OF STUDY GROUPS, IT IS
POINTED OUT THAT THE
PROCEDURES FOR REQUESTING EXCEPTIONS HAVE BEEN THOROUGHLY DISCUSSED
IN THE PAST. THE CHIEF OF
STAFF TO THE GOVERNOR WILL CONSIDER ANY RECOMMENDATIONS WITHIN THE
GUIDELINES WHICH HAVE BEEN
PREVIOUSLY STATED.
"4. AGREEMENT WAS REACHED ON 17 APRIL 1971 REGARDING THE REOPENING
OF THE CONTRACT, AND
THE TERMS WERE CONSIDERED TO BE IN THE BEST INTERESTS OF BOTH
PARTIES. UNILATERAL OPENING OF
ANY PART OF A CONTRACT DOES NOT APPEAR TO BE A FEASIBLE METHOD OF
OPERATION.
"5. IN VIEW OF THE ABOVE, YOU ARE ADVISED THAT YOUR PROPOSAL IN ITS
PRESENT FORM IS NOT
ACCEPTABLE."
BY LETTER OF JULY 28, 1972, THE ACTIVITY MADE A REQUEST TO THE
NATIONAL GUARD BUREAU FOR A NEGOTIABILITY DETERMINATION WITH REGARD TO
NATIONAL GUARD STATUS OF A TECHNICIAN LEAVING THE TECHNICIAN PROGRAM AND
THE USE OF MILITARY RANK AND COURTESY. THE MILITARY RANK PROPOSAL
SUBMITTED BY THE ACTIVITY WAS THE UNION'S PROPOSAL OF MAY 22, SUPRA.
THEREAFTER, AND WITHOUT FURTHER NOTIFICATION TO THE UNION, THE
ACTIVITY, ON AUGUST 5, 1972, ISSUED A PAMPHLET TO THIS TECHNICIANS
WHICH, IN EFFECT, REQUIRED THAT UNIFORMS MUST BE WORN BY ALL THE
ACTIVITY'S TECHNICIANS, EFFECTIVE SEPTEMBER 5, 1972. /22A/
THE PARTIES FINAL NEGOTIATING SESSION OCCURRED ON AUGUST 31, 1972.
THE MEETING WHICH LASTED APPROXIMATELY 10 MINUTES HAD BEEN CALLED BY A
FEDERAL MEDIATOR AT THE REQUEST OF THE UNION. THE PARTIES WERE AWARE
THAT OUTSIDE THE BUILDING WHERE THE SESSION WAS HELD A NUMBER OF
TECHNICIANS WERE DEMONSTRATING, APPARENTLY OBJECTING TO THE ACTIVITY'S
REQUIREMENT THAT UNIFORMS WERE TO BE WORN. AS THE MEETING OPENED,
COLONEL NOEL J. CIPRIANO, THE ACTIVITY'S COUNSEL AND A MEMBER OF THE
ACTIVITY'S NEGOTIATING TEAM, INFORMED THE UNION THAT THE DEMONSTRATION
OUTSIDE CONSTITUTED AN ILLEGAL ACT. PRESIDENT PATERNO, WHO WAS THE
UNION'S SPOKESMAN, REPLIED THAT IF THE UNION HAD COMMITTED AN ILLEGAL
ACT "THAT WAS ANOTHER PROBLEM." PATERNO THEN EXPRESSED HIS OPPOSITION TO
THE ACTIVITY'S PAMPHLET OF AUGUST 5, 1972. COLONEL MCCLURE ASKED IF THE
MEETING WAS CALLED TO HEAR THE PROPOSAL. PATERNO ANSWERED "YES" AND
MCCLURE ASKED TO HEAR THE PROPOSAL. PATERNO CONTINUED WITH HIS
EXPRESSION OF OPPOSITION TO THE PAMPHLET AND MCCLURE AGAIN ASKED IF THE
UNION HAD A PROPOSAL. PATERNO INDICATED THAT THE UNION WAS PREPARED TO
NEGOTIATE EXCEPTIONS TO THE WEARING OF UNIFORMS AND MADE A COMMENT
CHALLENGING MCCLURE'S CREDIBILITY AS A NEGOTIATOR. MCCLURE REPLIED THAT
THE UNION WOULD HAVE TO ACCEPT GENERAL BAKER'S STANDARDS AS TO WHEN IT
WOULD BE APPROPRIATE FOR UNIFORMS NOT TO BE WORN, APPARENTLY REFERRING
TO THE PRIOR MENTIONED CRITERIA THAT THE ACTIVITY WOULD CONSIDER
EXCEPTIONS TO THE UNIFORM REQUIREMENT IF THE UNION COULD SHOW THAT A JOB
COULD NOT BE PERFORMED IN UNIFORM OR WEARING THE UNIFORM WOULD BE
DETRIMENTAL TO THE HEALTH OR SAFETY OF THE TECHNICIAN. PATERNO THEN
REPLIED, "GODDAM IT TO HELL, WE'RE EQUALS AT THIS TABLE. I'M NOT GOING
TO ACCEPT YOUR GODDAMNED STANDARDS. WE'RE GOING TO TALK ABOUT THEM."
MCCLURE REPLIED "I'M NOT GOING TO STAY HERE ANY LONGER. I'VE ASKED YOU
TWICE FOR A PROPOSAL. OBVIOUSLY YOU CALLED THIS MEETING AS A FORM FOR
THE DEMONSTRATION OUTSIDE." WITH THAT, THE ACTIVITY LEFT THE MEETING AND
APPARENTLY NO FURTHER MEETINGS WERE HELD PRIOR TO THE HEARING HEREIN.
BY MEMORANDUM DATED SEPTEMBER 27, 1972, THE DEPARTMENT OF DEFENSE
ISSUED ITS NEGOTIABILITY DETERMINATION ON THE QUESTIONS PREVIOUSLY
SUBMITTED BY THE ACTIVITY UNDER SECTION 11(C) OF THE ORDER. /23/ THE
DEPARTMENT OF DEFENSE, BASED UPON THE LANGUAGE OF THE GOVERNING
REGULATIONS AS HEREINBEFORE SET FORTH, FOUND THAT THE UNION'S PROPOSAL
REGARDING THE USE OF MILITARY RANK AND COURTESY:
". . . CONFLICTS WITH PUBLISHED REGULATIONS AND IS NOT WITHIN THE
AUTHORITY OF THE STATE
ADJUTANT GENERAL TO NEGOTIATE. THE PROPOSAL IN QUESTION WOULD
ELIMINATE ANY REQUIREMENT THAT
EMPLOYEES OBSERVE MILITARY RANK WHILE PERFORMING TECHNICIAN AS
OPPOSED TO MILITARY
DUTIES. THIS WOULD ALSO HAVE THE EFFECT OF PRECLUDING AGENCY
MANAGEMENT FROM REQUIRING
EMPLOYEES TO WEAR THE MILITARY UNIFORM DURING PERFORMANCE OF
TECHNICIAN DUTIES, SINCE THE USE
OF MILITARY RANK AND THE WEARING OF THE UNIFORM ARE INSEPARABLY
RELATED. WHEN TECHNICIANS ARE
IN UNIFORM, MILITARY RANK MUST BE OBSERVED. NEGOTIABILITY QUESTIONS
CONCERNING THE USE OF
MILITARY RANK, THEREFORE, CANNOT BE DECIDED WITHOUT CONSIDERATION OF
THEIR RELATIONSHIP TO THE
WEARING OF THE UNIFORM."
THE DEPARTMENT'S DETERMINATION CONTINUED:
". . . THE PROPOSAL . . . IS CLEARLY INCONSISTENT WITH THIS
REGULATION, WHICH ESTABLISHES A
REQUIREMENT THAT TECHNICIANS WILL WEAR THE MILITARY UNIFORM WHEN
PERFORMING TECHNICIAN
DUTIES. THE AUTHORITY OF STATE ADJUTANTS GENERAL TO AUTHORIZE
EXCEPTIONS TO THIS REQUIREMENT
IS LIMITED TO 'SPECIFIC POSITIONS AND FUNCTIONS' FOR WHICH THE
UNIFORM IS DEEMED
INAPPROPRIATE. ADJUTANTS GENERAL, UNDER THIS REGULATION, DO NOT HAVE
AUTHORITY TO AGREE TO
ANY GENERAL RELAXATION OF THE UNIFORM REQUIREMENT. WITHOUT SUCH
AUTHORITY, ADJUTANTS GENERAL
ALSO LACK THE AUTHORITY TO AGREE TO ANY GENERAL RELAXATION OF
MILITARY RANK. ALTHOUGH AN
ADJUTANT GENERAL MAY AGREE TO A SPECIFIC EXCEPTION TO THE REQUIREMENT
FOR WEARING OF THE
UNIFORM, HE MAY DO SO ONLY WHERE HE DETERMINES THAT THE WEARING OF
THE MILITARY UNIFORM WOULD
BE INAPPROPRIATE IN A PARTICULAR SITUATION OR UNDER PARTICULAR
CONDITIONS. IN VIEW OF THIS
REGULATORY LIMITATION ON THE AUTHORITY OF ADJUTANTS GENERAL,
INCLUDING THE ADJUTANT GENERAL OF
NEW YORK, WE FIND . . . THE PROPOSAL TO BE NONNEGOTIABLE."
THE DEPARTMENT WENT TO STATE THAT IT COULD NOT MAKE A NEGOTIABILITY
DETERMINATION WITH REGARD TO THE USE OF MILITARY COURTESY BY UNION
OFFICIALS WHEN CONDUCTING UNION BUSINESS. THE REASON GIVEN WAS THE
DEPARTMENT DID NOT KNOW WHAT WAS MEANT BY THE PHRASE "THE SEPARATE
STATUS OF UNION OFFICIALS" OR THE REFERENCE TO THE USE OF MILITARY
COURTESY "TO IMPAIR THE RIGHTS" OF SUCH OFFICIALS.
BY LETTER DATED OCTOBER 26, 1972, /24/ THE UNION APPEALED THE
DEPARTMENT OF DEFENSE'S NEGOTIABILITY DETERMINATION TO THE FEDERAL LABOR
RELATIONS COUNCIL. BY DECISION DATED DECEMBER 27, 1973, /25/ THE
FEDERAL LABOR RELATIONS COUNCIL FOUND THAT THE REGULATION AS INTERPRETED
BY THE AGENCY HEAD WAS NOT INVALID UNDER APPLICABLE LAW OR THE ORDER AND
ACCORDINGLY, THE COUNCIL UPHELD THE AGENCY'S DETERMINATION OF
NON-NEGOTIABILITY OF THE UNION'S PROPOSAL, BASED ON THE REGULATION.
III. POSITIONS OF THE PARTIES
ESSENTIALLY, COMPLAINANT CONTENDS THAT THE ACTIVITY, DURING
NEGOTIATIONS, FAILED TO BARGAIN IN GOOD FAITH THEREBY VIOLATING SECTION
19(A)(6) AND (1) OF THE ORDER BY: UNILATERALLY CHANGING TERMS AND
CONDITIONS OF EMPLOYMENT BY REQUIRING THE USE OF MILITARY RANK OR
TITLES; UNILATERALLY CHANGING TERMS AND CONDITIONS OR EMPLOYMENT BY
REQUIRING ALL TECHNICIANS TO WEAR MILITARY UNIFORMS; AND FAILING TO
PROVIDE NEGOTIATORS, WHO HAD SUFFICIENT AUTHORITY TO CONCLUDE AN
AGREEMENT ON ALL RELEVANT ISSUES. /26/ IN ADDITION, COMPLAINANT
CONTENDS THAT THE ACTIVITY'S BAD FAITH BARGAINING IS EVIDENCED BY THE
TAKE-IT-OR-LEAVE-IT PRESENTATION OF ITS MAY 22, 1972, PROPOSAL WITH
REGARD TO THE WEARING OF UNIFORMS WHICH CONTAINED "INHERENT THREATS" AND
CONSTITUTED "DURESS".
RESPONDENT DENIES THAT ANY UNILATERAL CHANGE OCCURRED CONTENDING
RATHER THAT IT WAS MERELY ATTEMPTING TO HAVE ALL TECHNICIANS CONFORM TO
EXISTING REGULATIONS. RESPONDENT REASONS THAT SINCE EXISTING
REGULATIONS GOVERNED THE USE OF MILITARY RANK OR TITLES AND THE WEARING
OF UNIFORMS, THESE MATTERS WERE NOT NEGOTIABLE AND QUESTIONS OF
NEGOTIABILITY ARE FOR DETERMINATION BY THE FEDERAL LABOR RELATIONS
COUNCIL UNDER PROCEDURES SET FORTH IN THE ORDER. RESPONDENT ALSO TAKES
THE POSITION THAT IT CONSULTED, CONFERRED AND NEGOTIATED AS FAR AS IT
COULD UNDER EXISTING REGULATIONS AND URGES THAT IN ALL OTHER RESPECTS
COMPLAINANT FAILED TO MEET ITS BURDEN OF PROOF TO ESTABLISH THAT
RESPONDENT VIOLATED THE ORDER.
1. PRELIMINARY CONSIDERATIONS
COMPLAINANT ALLEGES THAT THE ACTIVITY HAS NOT FULFILLED ITS
OBLIGATION UNDER SECTION 19(A)(6) OF THE ORDER TO "CONSULT, CONFER, OR
NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED BY (THE) ORDER." SECTION
11(A) OF THE ORDER REQUIRES THAT:
"AN AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, THROUGH
APPROPRIATE REPRESENTATIVES, SHALL MEET AT REASONABLE TIMES AND
CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS, SO FAR
AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS,
INCLUDING POLICIES SET FORTH IN
THE FEDERAL PERSONNEL MANUAL, PUBLISHED AGENCY POLICIES AND
REGULATIONS, A NATIONAL OR OTHER
CONTROLLING AGREEMENT AT A HIGHER LEVEL IN THE AGENCY, AND THIS
ORDER." /27/
REGULATION NGR 690-2 PARAGRAPH 2-5 HAS BEEN INTERPOSED TO SUPPORT THE
ACTIVITY'S ACTIONS HEREIN. THE REGULATION PROVIDES THAT TECHNICIANS IN
THE EXCEPTED SERVICE WILL WEAR THE MILITARY UNIFORM WHEN PERFORMING
TECHNICIANS DUTIES, BUT ADJUTANTS GENERAL (THE CHIEF OF STAFF HEREIN)
MAY AUTHORIZE OTHER APPROPRIATE ATTIRE WHEN THE UNIFORM IS DEEMED
INAPPROPRIATE FOR SPECIFIC POSITIONS AND FUNCTIONS. /28/ IN AN
UNRELATED CASE, THE DEPARTMENT OF DEFENSE IN MAKING A NEGOTIABILITY
DETERMINATION UNDER SECTION 11(C)(3) OF THE ORDER, /29/ HELD ON DECEMBER
3, 1971, THAT:
". . . NEGOTIABLE MATTERS ARE THOSE WITHIN THE SCOPE OF AUTHORITY OF
THE RESPONSIBLE
MANAGEMENT OFFICIALS. THE AUTHORITY OF ADJUTANTS GENERAL WHO
AUTHORIZE EXCEPTIONS TO THE
REQUIREMENT THAT TECHNICIANS WEAR THE UNIFORM IS LIMITED BY PARAGRAPH
2-5 . . . TO 'SPECIFIC
POSITIONS AND FUNCTIONS' FOR WHICH THE UNIFORM HAS BEEN DETERMINED TO
BE
INAPPROPRIATE. ADJUTANTS GENERAL HAVE NO AUTHORITY TO AGREE TO A
GENERAL RELAXATION OF THE
UNIFORM REQUIREMENT. . . "
FURTHER, DURING THE NEGOTIATING SESSION OF SEPTEMBER 2, 1971, THE
UNION BROUGHT TO THE ACTIVITY'S ATTENTION A TELEGRAM OF JUNE 1971 FROM
THE NATIONAL GUARD BUREAU TO THE ADJUTANT GENERAL OF THE MONTANA
NATIONAL GUARD /30/ WHICH INDICATED THAT WHILE UNDER NGR 690-2 THE
MATTER OF EXEMPTING SPECIFIC POSITIONS OR FUNCTIONS MAY BE NEGOTIATED,
THE REGULATION "PRECLUDES WEARING OF THE UNIFORM FROM BEING A NEGOTIABLE
ITEM AS AN ENTITY. . . "
THE CHIEF OF STAFF'S AUTHORITY UNDER THE REGULATION WAS FURTHER
DELINEATED IN A LETTER OF FEBRUARY 23, 1973, FROM THE NATIONAL GUARD
BUREAU CHIEF TO THE "ADJUTANTS GENERAL OF ALL STATES, PUERTO RICO AND
THE DISTRICT OF COLUMBIA." /31/ IN THAT LETTER /32/ THE NATIONAL GUARD
BUREAU CHIEF STATES, INTER ALIA:
". . . THE AUTHORITY TO DEVIATE IS FOR USE IN UNUSUAL CIRCUMSTANCES
WHERE WEARING OF THE
UNIFORM MAY BE CONSIDERED, BY THE ADJUTANT GENERAL, TO BE
INAPPROPRIATE FOR AN INDIVIDUAL OR
GROUP OF INDIVIDUALS. SUCH CIRCUMSTANCES MAY (BUT NOT NECESSARILY)
INCLUDE TECHNICIANS
EMPLOYED AT SPECIFIC LOCATIONS OR IN THE PROXIMITY OF DISTURBANCE
AREAS, TECHNICIANS IN A
TRAVEL STATUS OR ATTENDING COURSES OF INSTRUCTION AT OTHER THAN
MILITARY INSTALLATIONS, OR
TECHNICIANS ENGAGING IN MATTERS PERTAINING TO LABOR/MANAGEMENT SUCH
AS NEGOTIATING
AGREEMENTS. IT IS EMPHASIZED THAT THESE EXAMPLES ARE NOT AN
AUTOMATIC EXCLUSION FROM THE
REQUIREMENT TO WEAR THE UNIFORM. HOWEVER, THEY DO EXEMPLIFY THE
TYPES OF CIRCUMSTANCES WHICH
ARISE AND FOR WHICH CONSIDERATION IS NECESSARY IN THE EXERCISE OR
RESPONSIBLE MANAGEMENT
PRACTICES."
IT IS CLEAR THEREFORE THAT THE ACTIVITY'S OBLIGATION UNDER THE ORDER
TO MEET AND CONFER IN GOOD FAITH ENCOMPASSES THE SCOPE OF THE CHIEF OF
STAFF'S AUTHORIZATION TO GRANT EXCEPTIONS TO THE GENERAL REQUIREMENTS OF
NGR 690-2 (I.E. WHEN THE UNIFORM IS DEEMED INAPPROPRIATE FOR SPECIFIC
POSITIONS AND FUNCTIONS). SO WHILE THE ACTIVITY HAS AN OBLIGATION UNDER
THE ORDER TO MEET AND CONFER IN GOOD FAITH, THE OBLIGATION IS NOT
WITHOUT LIMITATION.
IN ADDITION TO THE ABOVE, THE VARIOUS CIRCUMSTANCES SURROUNDING THE
ACTIVITY'S ACTIONS MUST ALSO BE CONSIDERED WHEN VIEWING THIS CASE.
THUS, PRIOR TO THE ACTIVITY'S FULL ENFORCEMENT OF 690-2 THE REGULATION
HAD BEEN IN EFFECT FOR A LONG PERIOD OF TIME BUT THE ACTIVITY DID NOT
ENFORCE THE REGULATION WITH REGARD TO A SUBSTANTIAL NUMBER OF ITS
TECHNICIANS. FURTHER, ENFORCEMENT OF THE REGULATION OCCURRED WHEN THE
PARTIES WERE NEGOTIATING THE ISSUE OF EXCEPTIONS. MOREOVER, THE
ACTIVITY'S OBLIGATION TO ENFORCE ITS REGULATIONS IS ALSO A RELEVANT
CONSIDERATION WHEN ASSESSING THE RELATIVE RIGHTS AND OBLIGATION OF THE
PARTIES TO THIS PROCESSING. I AM UNAWARE OF ANY CASE WHERE THE
ASSISTANT SECRETARY HAS TREATED THE PRECISE ISSUES PRESENTED HEREIN.
HOWEVER IN ONE CASE /33/ THE ASSISTANT SECRETARY, RELYING ON UNITED
FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND U.S. MERCHANT MARINE
ACADEMY, FLRC NO. 71A-15, HELD THAT AN ACTIVITY WAS NOT OBLIGATED TO
MEET AND CONFER WITH A UNION OVER THE ADOPTION OF A REGULATION UNIFORMLY
APPLICABLE TO ALL SIMILARLY SITUATED EMPLOYEES OF AN AGENCY AND THE
MATTERS CONTAINED IN THE REGULATION WERE THEREFORE REMOVED FROM THE
SCOPE OF NEGOTIATIONS AT THE LOCAL LEVEL. HOWEVER, THAT CASE IS
DISTINGUISHABLE FROM THE INSTANT CASE SINCE THE REGULATION HEREIN
PROVIDES THAT THE CHIEF OF STAFF MAY ALLOW EXCEPTIONS, AS SET FORTH
ABOVE.
2. THE USE OF MILITARY TITLES
THE RECORD REVEALS THAT IN MAY 1971, WHEN THE ACTIVITY ANNOUNCED TO
THE EMPLOYEES OF THE USP&FO AND THE 42ND INFANTRY DIVISION THAT THEY
WERE OBLIGED TO USE MILITARY TITLES IN COMMUNICATIONS, NGR 690-2
PARAGRAPH 2-5 WAS IN EFFECT BUT NOT STRICTLY OR UNIFORMLY ENFORCED. AT
THAT TIME IT WAS THE POLICY AT THE USP&FO TO ALLOW TECHNICIANS THE
DISCRETIONARY USE OF TITLES IN CORRESPONDENCE. THAT POLICY WAS
PROMULGATED IN WRITING BY AN AGENT OF THE ACTIVITY BY MEMORANDUM DATED
APRIL 1, 1966, AND WAS NEVER SPECIFICALLY WITHDRAWN OR MODIFIED PRIOR TO
MAY 1971. THE PRACTICE FOLLOWED BY UNIT EMPLOYEES AT THE FACILITIES IN
QUESTION WITH REGARD TO THE USE OF TITLES IN ORAL COMMUNICATIONS VARIED
WIDELY AND UNIT EMPLOYEES WERE NOT OBLIGED TO EITHER WEAR THE UNIFORM OR
USE TITLES IN DISCUSSIONS. INDEED, THIS PRACTICE WAS ACTIVITY-WIDE AND
RESPONDENT WAS WELL AWARE OF IT. FURTHER, AT THE TIME OF THE MAY 1971
DIRECTIVES THE WEARING OF UNIFORMS AND THE USE OF MILITARY TITLES BY
UNIT EMPLOYEES WAS THE SUBJECT OF NEGOTIATIONS, BOTH PARTIES HAVING
SUBMITTED CONTRACT PROPOSALS ON THE SUBJECT BUT, BY MUTUAL CONSENT,
DEFERRING DISCUSSION ON THE ISSUES UNTIL A LATER TIME. ALTHOUGH THE
ACTIVITY HAD IN THE PART NOTIFIED THE UNION OF FORTHCOMING CHANGES IN
POLICIES BEFORE SUCH CHANGES WERE EFFECTUATED, NO PRIOR NOTIFICATION WAS
GIVEN TO THE UNION RELATIVE TO THE MAY 1971 ANNOUNCEMENTS.
I FIND AND CONCLUDE THAT UNDER THE CIRCUMSTANCES HEREIN, RESPONDENT
WAS NOT PRIVILEGED TO UNILATERALLY CHANGE THE TERMS AND CONDITIONS OF
EMPLOYMENT OF USP&FO EMPLOYEES RELATIVE TO THE USE OF TITLES IN BOTH
CORRESPONDENCE AND DISCUSSIONS OR UNILATERALLY CHANGE THE TERMS AND
CONDITIONS OF EMPLOYMENT OF 42ND INFANTRY DIVISION EMPLOYEES WITH REGARD
TO DISCUSSIONS WITHOUT PRIOR NOTICE AND CONSULTATION WITH THE UNION AND
ACCORDINGLY RESPONDENT HAS VIOLATED SECTION 19(A)(6) AND (1) OF THE
ORDER. FURTHER, SUCH UNILATERAL ACTIONS HAD THE EFFECT OF EVIDENCING TO
EMPLOYEES THAT THE ACTIVITY COULD ACT WITHOUT REGARD TO THE EMPLOYEE'S
EXCLUSIVE REPRESENTATIVE AND UNDERMINED, DEMEANED AND DISPARAGED THE
UNION IN THE EYES OF EMPLOYEES IT REPRESENTS, THEREBY VIOLATING SECTION
19(A)(1) OF THE ORDER. /34/
I REJECT THE ARGUMENT THAT NGR 690-2 PARAGRAPH 2-5 PRIVILEGED
RESPONDENT TO TAKE THE AFOREMENTIONED UNILATERAL ACTIONS WITH REGARD TO
THE USE OF MILITARY RANK. ASSUMING THAT RANK IS INHERENTLY AND
INSEPARABLY RELATED TO THE WEARING OF UNIFORMS AND ALSO ASSUMING THAT
THE USE OF RANK IS NORMALLY TRADITIONAL IN THE NATIONAL GUARD WHEN THE
UNIFORM IS WORN, /35/ NEVERTHELESS NGR 690-2 AUTHORIZES THE CHIEF OF
STAFF TO MAKE EXCEPTIONS TO THE UNIFORM REQUIREMENT. IT FOLLOWS
THEREFORE THAT THE AUTHORITY TO EXCEPT TECHNICIANS FROM THE UNIFORM
REQUIREMENT (AS APPROPRIATE) /36/ WOULD EXTEND TO THE USE OF RANK BY
TECHNICIANS WHO WERE NOT IN UNIFORM. AT THE TIME OF THE MAY 1971
ANNOUNCEMENTS, THE REGULATION WAS NOT ENFORCED SO AS TO OBLIGATE
TECHNICIANS IN THE ARMY NATIONAL GUARD TO WEAR THE UNIFORMS /37/ AND
TECHNICIANS AT THE USP&FO AND 42ND INFANTRY DIVISION WERE PART OF THE
ARMY NATIONAL GUARD. ACCORDINGLY, IT IS REASONABLE TO INFER THAT AN
EXCEPTION TO THE REGULATION BOTH AS TO THE WEARING OF UNIFORMS AND THE
USE OF MILITARY TITLES WAS TACITLY AUTHORIZED, SINCE FROM JANUARY 1,
1969, TO MAY 1971, /38/ TECHNICIANS AT THE USP&FO AND THE 42ND INFANTRY
DIVISION WERE, BY PRACTICE, NOT OBLIGED TO WEAR UNIFORMS OR ALWAYS USE
MILITARY RANK IN THE PERFORMANCE OF THEIR TECHNICIAN DUTIES AND SUCH
WAS, AT ALL TIMES MATERIAL HEREIN, WITHIN THE KNOWLEDGE OF RESPONSIBLE
AGENTS OF THE ACTIVITY. IN ANY EVENT, THE ACTIVITY DID NOT GIVE THE
UNION ANY PRIOR NOTIFICATION OR OPPORTUNITY TO CONSULT WITH REGARD TO
THE CHANGE WHICH, IN MY VIEW, IS REQUIRED BY THE ORDER.
3. THE WEARING OF UNIFORMS
AS STATED ABOVE, UNDER PAST PRACTICE NGR 690-2 PARAGRAPH 2-5 WAS NOT
ENFORCED SO AS TO REQUIRE THAT THE UNIFORM WOULD BE WORN BY ARMY
NATIONAL GUARD TECHNICIANS. FROM THE TIME OF THE EARLIEST NEGOTIATING
SESSIONS IN MARCH 1971, THE ACTIVITY SOUGHT, THROUGH NEGOTIATIONS, TO
HAVE ALL TECHNICIANS COMPLY WITH THE TERMS OF THE REGULATION. AS
NEGOTIATIONS PROGRESSED IT BECAME ABUNDANTLY CLEAR THAT THE ACTIVITY'S
FAILURE TO ENFORCE THE REGULATION AS TO THE GROUP OF APPROXIMATELY 900
ARMY NATIONAL GUARD TECHNICIANS WAS CONTRARY TO THE NATIONAL GUARD
BUREAU'S INTERPRETATION OF THE REGULATION. ALTHOUGH EXCEPTIONS TO THE
UNIFORM REQUIREMENT WERE PERMITTED UNDER THE REGULATION, DURING THE
NEGOTIATIONS THE ACTIVITY WOULD ADMIT TO NO REASON WHY ALL TECHNICIANS
SHOULD NOT BE REQUIRED TO WEAR UNIFORMS AND ACCORDINGLY TOOK A "SHOW ME"
STAND. THE UNION WISHED TO HAVE AS MANY TECHNICIANS AS POSSIBLE FREE OF
THE UNIFORM REQUIREMENT AND "HARD BARGAINING" ON THE ISSUE FOLLOWED.
IN MAY 1972, AFTER OVER ONE YEAR OF BARGAINING ON THE MATTER, THE
ACTIVITY INFORMED THE UNION THAT ON SEPTEMBER 1 NGR 690-2 WOULD BE
ENFORCED AND ALL TECHNICIANS WOULD BE REQUIRED TO WEAR UNIFORMS UNLESS
EXCEPTIONS WERE AGREED TO BY THE PARTIES. THE ACTIVITY DID NOT RETREAT
FROM THIS POSITION AND BY LETTER DATED JULY 28, 1972, (RESPONDENT
EXHIBIT NO. 19) THE ACTIVITY WROTE CHAIRMAN TEDESCO TO INFORM HIM THAT,
". . . NO PARTICULAR PURPOSE IS SERVED BY FURTHER DELAYING THE
IMPLEMENTING OF THE REGULATION. . ." ON AUGUST 5, 1972, THE ACTIVITY,
RELYING ON NGR 690-2, ORDERED ALL ITS TECHNICIANS TO WEAR THE PRESCRIBED
SERVICE UNIFORMS WHILE PERFORMING TECHNICIAN DUTIES. /39/
THE ACTIVITY THROUGH ITS DESIGNATED OFFICERS IS OBLIGATED TO ENFORCE
APPLICABLE REGULATIONS ISSUED BY HIGHER AUTHORITY. NGR 690-2 IS
APPLICABLE TO ALL NATIONAL GUARD TECHNICIANS IN NEW YORK STATE AND THE
VARIOUS OTHER STATES AS WELL. HOWEVER IN NEW YORK STATE THE REGULATION
FROM ITS INCEPTION IN 1969 WAS NOT ENFORCED WITH REGARD TO ARMY NATIONAL
GUARD TECHNICIANS WHO COMPROMISED A SUBSTANTIAL PART OF THE TOTAL NUMBER
OF THE STATE'S TECHNICIANS, AND THERE DEVELOPED A PAST PRACTICE OF
NON-ENFORCEMENT OF A CONDITION OF EMPLOYMENT. THEREFORE, THIS CASE
PRESENTS A SITUATION WHICH INVOLVES THE BALANCING OF THE ACTIVITY'S
OBLIGATION TO SEE THAT REGULATIONS ARE ENFORCED WITH THE ACTIVITY'S
OBLIGATION UNDER THE ORDER TO CONSULT, CONFER AND NEGOTIATE IN GOOD
FAITH WITH THE TECHNICIAN'S COLLECTIVE BARGAINING REPRESENTATIVE.
IN MY VIEW, IN THE CIRCUMSTANCES OF THIS CASE, THE ACTIVITY'S
OBLIGATION UNDER THE ORDER WERE FULFILLED BY GIVING THE UNION PROPER
NOTIFICATION OF ITS INTENTION TO ENFORCE THE REGULATION AND CONSULTING
WITH THE UNION ON THIS MATTER. THE FACT THAT EXCEPTIONS TO THE UNIFORM
REQUIREMENT ARE PERMISSIBLE /40/ SHOULD NOT PRECLUDE THE ACTIVITY FROM
CARRYING OUT ITS OBLIGATION IN SEEING TO IT THAT TECHNICIANS WERE IN
SUBSTANTIAL COMPLIANCE WITH THE REGULATION. THE UNION WAS INFORMED OF
THE ACTIVITY'S DISPOSITION TO ENFORCE THE REGULATION AND THE REASONS
THEREFORE FOR WELL OVER A YEAR. AT ALL TIMES AFTER MAY 22, 1972, THE
UNION WAS AWARE THAT NOTWITHSTANDING NEGOTIATIONS ON EXCEPTIONS, THE
ACTIVITY INTENDED TO ENFORCE THE REGULATION AS OF SEPTEMBER AND THE
ACTIVITY DID NOTHING TO LEAD THE UNION INTO BELIEVING THAT THE
REGULATION WOULD NOT BE PUT INTO EFFECT AS STATED. ACCORDINGLY I
CONCLUDE THAT COMPLAINANT HAS NOT ESTABLISHED, BY A PREPONDERANCE OF THE
EVIDENCE, THAT THE ACTIVITY'S ENFORCEMENT OF NGR 690-2 BY ISSUANCE OF
THE PAMPHLET ON AUGUST 5, 1972, CONSTITUTED A VIOLATION OF THE ORDER.
4. OTHER ALLEGATIONS OF BAD FAITH BARGAINING
THE UNION ALLEGES THAT DURING CONTRACT NEGOTIATIONS THE ACTIVITY
FAILED TO PROVIDE REPRESENTATIVES WHO HAD SUFFICIENT AUTHORITY TO
CONCLUDE AN AGREEMENT ON ALL RELEVANT ISSUES. THIS CONTENTION IS
UNSUPPORTED BY THE EVIDENCE. ALTHOUGH AT TIMES THE ACTIVITY'S
NEGOTIATORS TOOK THE POSITION THAT PURSUANT TO REGULATION AND HIGHER
AUTHORITY INTERPRETATION THEREOF, BROAD AND GENERAL EXCEPTIONS TO NGR
690-2 AS PROPOSED BY THE UNION WERE NOT NEGOTIABLE, THE ORDER PROVIDES
THAT SUCH MATTERS SHOULD BE RESOLVED THROUGH THE PROCEDURES SET FORTH IN
SECTION 11(C) OF THE ORDER. WITH REGARD TO THE ACTIVITY'S NEGOTIATORS
INDICATING AT VARIOUS TIMES THAT THEY WOULD HAVE TO DISCUSS THE UNION'S
PROPOSALS ON UNIFORMS AND TITLES WITH THE CHIEF OF STAFF, CONSIDERING
THE SCOPE OF THE UNION'S PROPOSALS, I CONCLUDE THAT ACTIVITY'S COMMENTS
WERE IN THE NATURE OF SEEKING TIME TO EVALUATE AND DISCUSS THE PROPOSALS
AND DID NOT EVIDENCE A LACK OF AUTHORITY TO CONCLUDE AN AGREEMENT ON
RELEVANT ISSUES. THUS, THE BROADNESS OF THE UNION'S PROPOSALS CREATED
SUBSTANTIAL QUESTIONS WHICH WENT TO THE ACTIVITY'S AUTHORITY TO AGREE
UNDER NGR 690-2.
FURTHER, I DO NOT CONCLUDE THAT THE ACTIVITY'S ALLEGED
"TAKE-IT-OR-LEAVE-IT" PROPOSAL OF MAY 22, 1972, CONTAINED INHERENT
THREATS OR AMOUNTED TO DURESS VIOLATIVE OF THE ORDER. BY ITS PROPOSAL
THE ACTIVITY NOTIFIED THE UNION OF ITS INTENT TO ENFORCE NGR 690-2 AND
SUGGESTED THAT FURTHER DISCUSSIONS ON EXCEPTIONS BE CONDUCTED BY A STUDY
GROUP. ALTHOUGH THE PROPOSAL PROVIDED THAT ANY AGREEMENT OF THE STUDY
GROUP WOULD HAVE TO BE APPROVED BY THE CHIEF OF STAFF, ESSENTIALLY THE
PROPOSAL CONVEYED THAT THE CHIEF OF STAFF WAS NOT GOING TO DELEGATE TO
THE STUDY GROUP HIS RIGHT TO AGREE OR DISAGREE WITH WHATEVER EXCEPTIONS
THE STUDY GROUP SUGGESTED. IN MY VIEW, THE CHIEF OF STAFF WAS FREE TO
MAINTAIN THIS POSITION WITHOUT VIOLATING THE ORDER. MOREOVER, THE
ENTIRE STUDY GROUP CONCEPT WAS MERELY A PROPOSAL WHICH THE UNION WAS
FREE TO REJECT.
HOWEVER, I FIND THAT THE ACTIVITY DID NOT FULFILL ITS OBLIGATION TO
NEGOTIATE IN GOOD FAITH WITH THE UNION WHEN IT TOOK THE POSITION THAT IT
WOULD DISCUSS EXCEPTIONS TO THE UNIFORM REQUIREMENT ONLY IF BASED ON THE
ACTIVITY'S CRITERIA THAT THE TECHNICIAN'S JOB COULD NOT BE PERFORMED IN
UNIFORM OR THAT THE UNIFORM WAS DETRIMENTAL TO THE HEALTH OR SAFETY OF A
TECHNICIAN. /41/ THUS, THE MEETING OF JUNE 2, 1972, WAS ABORTED BY THE
ACTIVITY WHEN THE UNION ATTEMPTED TO PRESENT THEIR ARGUMENTS OUTSIDE OF
THE ACTIVITY'S CRITERIA. FURTHER THE MEETING OF AUGUST 31, 1972, BROKE
OFF, IN PART, BECAUSE THE UNION WISHED TO DISCUSS THE STANDARDS FOR
EXCEPTIONS BUT WAS PREVENTED FROM DOING SO SINCE THE ACTIVITY WOULD
PROCEED WITH THE DISCUSSION ONLY IF THE DISCUSSION FOLLOWED ITS OWN
GROUND RULES.
ESSENTIAL TO VIABLE GOOD FAITH NEGOTIATIONS IS FULL AND OPEN
DISCUSSION ON THE MATTER IN ISSUE. WHILE IN THE INSTANT CASE THE
ACTIVITY COULD ULTIMATELY REFUSE TO ACCEDE TO THE UNION'S POSITION ON
EXCEPTIONS TO THE UNIFORM REQUIREMENT AND THE CRITERIA THEREFOR, AND
ADHERE TO ITS OWN POSITION ON THE MATTER, IT COULD NOT UNILATERALLY
LIMIT DISCUSSION TO ITS OWN CRITERIA FOR EXCEPTIONS. SUCH CONDUCT, I
FIND, VIOLATES SECTION 19(A)(6) AND (1) OF THE ORDER. /42/
IN VIEW OF THE ENTIRE FOREGOING, I MAKE THE FOLLOWING RECOMMENDATIONS
TO THE ASSISTANT SECRETARY:
1. THAT RESPONDENT'S MOTIONS TO DISMISS BE DENIED.
2. THAT RESPONDENT BE FOUND TO HAVE ENGAGED IN CONDUCT VIOLATIVE OF
SECTION 19(A)(1) AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND THAT AN ORDER, AS
HEREINAFTER SET FORTH WHICH IS
DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER, BE ADOPTED. /43/
3. THAT ANY ALLEGED VIOLATIONS OF THE ORDER NOT SPECIFICALLY FOUND
HEREIN BE DISMISSED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE NEW YORK ARMY AND
AIR NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
A. UNILATERALLY CHANGING TERMS AND CONDITIONS OF EMPLOYMENT BY
ENFORCING PREVIOUSLY
UNENFORCED OR ONLY PARTIALLY ENFORCED REGULATIONS INVOLVING EMPLOYEES
EXCLUSIVELY REPRESENTED
BY NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITHOUT NOTIFYING NEW YORK STATE COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS,
INC., OR ANY OTHER EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY
TO MEET AND CONFER IN GOOD FAITH TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS.
B. REFUSING TO DISCUSS WITH NEW YORK STATE COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS,
INC., OR ANY OTHER EXCLUSIVE REPRESENTATIVE, EXCEPTIONS TO THE
REQUIREMENT THAT UNIFORMS WILL
BE WORN BY AFFECTED EMPLOYEES BY LIMITING DISCUSSIONS TO ITS
UNILATERALLY ESTABLISHED CRITERIA
FOR SUCH EXCEPTIONS OR IN ANY LIKE OR RELATED MANNER REFUSING TO
CONSULT, CONFER OR NEGOTIATE
IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, WITH
NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
C. INTERFERING WITH, RESTRAINING OR COERCING EMPLOYEES BY
UNILATERALLY CHANGING THEIR
TERMS AND CONDITIONS OF EMPLOYMENT WITHOUT MEETING AND CONFERRING IN
GOOD FAITH WITH THEIR
EXCLUSIVE BARGAINING REPRESENTATIVE.
D. IN ANY LIKE OO RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
A. NOTIFY NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND AFFORD SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER IN
GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, PRIOR
TO CHANGING TERMS AND
CONDITIONS OF EMPLOYMENT BY ENFORCING PREVIOUSLY UNENFORCED OR ONLY
PARTIALLY ENFORCED
REGULATIONS INVOLVING EMPLOYEES EXCLUSIVELY REPRESENTED BY NEW YORK
STATE COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS, INC,, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
B. UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND
REGULATIONS, WITH NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING EXCEPTIONS TO THE
REQUIREMENT THAT UNIFORMS WILL BE
WORN BY AFFECTED EMPLOYEES WITHOUT LIMITING DISCUSSIONS TO ITS
UNILATERALLY ESTABLISHED
CRITERIA FOR SUCH EXCEPTIONS.
C. POST AT ITS FACILITIES, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE CHIEF OF STAFF TO THE
GOVERNOR OF NEW YORK STATE AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY POSTED. THE CHIEF OF STAFF TO THE GOVERNOR OF NEW
YORK STATE SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
D. PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN
WRITING, WITHIN TWENTY (20) DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN
TO COMPLY HEREWITH.
DATED: MARCH 22, 1974
WASHINGTON, D.C.
WE WILL NOT UNILATERALLY CHANGE TERMS AND CONDITIONS OF EMPLOYMENT BY
ENFORCING PREVIOUSLY UNENFORCED OR ONLY PARTIALLY ENFORCED REGULATIONS
INVOLVING EMPLOYEES EXCLUSIVELY REPRESENTED BY NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITHOUT NOTIFYING NEW YORK STATE COUNCIL, ASSOCIATION OF
CIVILIAN TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE REPRESENTATIVE, AND
AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER IN GOOD
FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS.
WE WILL NOT REFUSE TO DISCUSS WITH NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, EXCEPTIONS TO THE REQUIREMENT THAT UNIFORMS WILL BE WORN
BY AFFECTED EMPLOYEES BY LIMITING DISCUSSIONS TO OUR OWN CRITERIA FOR
SUCH EXCEPTIONS OR IN ANY LIKE OR RELATED MANNER REFUSE TO CONSULT,
CONFER OR NEGOTIATE IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, WITH NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES BY
UNILATERALLY CHANGING THEIR TERMS AND CONDITIONS OF EMPLOYMENT WITHOUT
MEETING AND CONFERRING IN GOOD FAITH WITH NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., OUR EMPLOYEES EXCLUSIVE
BARGAINING REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
WE WILL NOTIFY NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE REPRESENTATIVE, AND AFFORD
SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER IN GOOD FAITH, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, PRIOR TO CHANGING TERMS
AND CONDITIONS OF EMPLOYMENT BY ENFORCING PREVIOUSLY UNENFORCED OR ONLY
PARTIALLY ENFORCED REGULATIONS INVOLVING EMPLOYEES EXCLUSIVELY
REPRESENTED BY NEW YORK STATE COUNCIL, ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, WITH NEW YORK STATE COUNCIL,
ASSOCIATION OF CIVILIAN TECHNICIANS, INC., OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, CONCERNING EXCEPTIONS TO THE REQUIREMENT THAT UNIFORMS
WILL BE WORN BY AFFECTED EMPLOYEES, WITHOUT LIMITING DISCUSSIONS TO OUR
OWN ESTABLISHED CRITERIA FOR SUCH EXCEPTIONS.
DATED . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED OR COVERED BY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS ROOM 3515, FEDERAL OFFICE BUILDING, 1515 BROADWAY, NEW YORK,
NEW YORK 10036.
/1/ COMPLAINANT EXHIBIT NO. 5.
/2/ ASSISTANT SECRETARY REPORT NO. 33.
/3/ FOR SOME TIME PRIOR THERETO COMPLAINANT WAS AFFORDED FORMAL
RECOGNITION AS COLLECTIVE BARGAINING REPRESENTATIVE OF VARIOUS OF THE
ACTIVITY'S TECHNICIANS LOCATED IN CERTAIN OF THE ACTIVITY'S FACILITIES
WITHIN THE STATE OF NEW YORK.
/4/ TO A LARGE EXTENT THE FACTS ARE NOT IN DISPUTE. WHILE THERE WAS
SOME DISPARITY IN THE TESTIMONY OF WITNESSES, IT APPEARS THAT, IN THE
MAIN, VARIANCES IN TESTIMONY IS THE RESULT OF FAULTY RECOLLECTION OF
EVENTS WHICH OCCURRED MANY MONTHS PRIOR TO THE DATE OF TESTIMONY RATHER
THAN DELIBERATE FALSIFICATION OF FACTS.
/5/ THE PARTIES HELD APPROXIMATELY 19 NEGOTIATING SESSIONS BETWEEN
MARCH 19, 1971, AND AUGUST 31, 1972.
/6/ THE APPLICABLE AIR NATIONAL GUARD REGULATION IS IDENTICAL TO NGR
690-2, PARAGRAPH 2-5.
/7/ RESPONDENT TAKES THE POSITION THAT THE USE OF MILITARY TITLES BY
TECHNICIANS IS CONTROLLED BY MILITARY CUSTOM AND PRACTICE AND SINCE
UNIFORMS WERE REQUIRED TO BE WORN, IT FOLLOWS THAT TITLES WERE TO BE
USEE BY TECHNICIANS WHEN PERFORMING ON-THE-JOB DUTIES. HOWEVER, IT IS
ACKNOWLEDGED THAT 50 TO 55 PERCENT OF THE TECHNICIANS (VIRTUALLY ALL OF
THE ARMY NATIONAL GUARD TECHNICIANS) WERE OUT OF UNIFORM DURING THE
PERIOD FROM UNION RECOGNITION TO SEPTEMBER 1972. WHILE THE CHIEF OF
STAFF, MAJOR GENERAL BAKER AND COLONEL CHARLES J. MCCLURE, TECHNICIAN
PERSONNEL OFFICER AND THE ACTIVITY'S CHIEF NEGOTIATOR, BOTH TESTIFIED
THAT THEY PRESUMED THAT TECHNICIANS WERE USING MILITARY TITLES WHILE
PERFORMING TECHNICIAN DUTIES, NEVERTHELESS THEY BOTH KNEW THE EXTENT OF
WHICH TECHNICIANS WERE OUT OF UNIFORM. FURTHER, MAJOR GENERAL BAKER WHO
BECAME CHIEF OF STAFF IN FEBRUARY 1971, ACKNOWLEDGED IT WAS REASONABLE
TO ASSUME THAT WHERE UNIFORMS WERE NOT WORN, PEOPLE WOULD BE SOMEWHAT
REMISS IN USING MILITARY TITLES. ACCORDINGLY, UNDER ALL CIRCUMSTANCES,
I FIND THAT IN MAY 1971 THE ACTIVITY WAS WELL AWARE THAT THE PREVAILING
PRACTICE WITH REGARD TO THE USE OF MILITARY TITLES VARIED WIDELY AS SET
FORTH ABOVE.
/8/ THE USP&FO IS A FACILITY OF THE ACTIVITY LOCATED IN BROOKLYN, NEW
YORK, AND EMPLOYS APPROXIMATELY 100 UNIT TECHNICIANS.
/9/ COMPLAINANT EXHIBIT NO. 5.
/10/ THE ATTACHMENT TO COLONEL GANNON'S MEMORANDUM REVEALS, FOR
EXAMPLE, THAT A SERGEANT FIRST CLASS WOULD, IN CORRESPONDENCE, BE
DESIGNATED AS "SFC" AND BE ORALLY ADDRESSED AS "SERGEANT."
/11/ WHILE THE 42ND INFANTRY DIVISION IS A SEPARATE FACILITY IT IS
LOCATED IN THE SAME GENERAL AREA AS THE USP&FO AND THE FACILITIES ARE IN
CLOSE ASSOCIATION WITH ONE ANOTHER.
/12/ INDEED, AS STATED ABOVE, THE RECORD CLEARLY ESTABLISHES THAT
SUCH PRACTICE WAS NOT LIMITED TO THE USP&FO AND THE 42ND INFANTRY
DIVISION BUT RATHER EXTENDED TO THE ENTIRE ACTIVITY. HOWEVER, THE
RECORD DOES NOT CONTAIN SUFFICIENT EVIDENCE TO REACH A FINDING AS TO THE
PRACTICE OF TECHNICIANS WITH REGARD TO THE USE OF MILITARY TITLES IN
WRITTEN COMMUNICATIONS EITHER AT THE USP&FO OR ANYWHERE ELSE WITHIN THE
ACTIVITY.
/13/ COMPLAINANT EXHIBIT NO. 5.
/14/ APPARENTLY RANK WAS NOT DISCUSSED IN ANY DETAIL. CHAIRMAN
TEDESCO TESTIFIED THAT IN HIS OPINION "ONCE YOU TOOK THE UNIFORM OFF A
MAN, HE HAD NO RANK."
/15/ RESPONDENT EXHIBIT NO. 17.
/16/ THE UNION'S PROPOSALS OF DECEMBER 1971, SUPRA.
/17/ PATERNO'S COPY OF THE CORRESPONDENCE DID NOT CONTAIN THE
ATTACHED PROPOSALS.
/18/ COMPLAINANT EXHIBIT NO. 13, A LETTER FROM THE ACTIVITY TO THE
UNION DATED MARCH 13, 1972, REVEALS THAT THE PARTIES WERE IN TELEPHONE
COMMUNICATION ON MARCH 7, 1972. THE LETTER STATES:
"AS INDICATED, THIS DIVISION, IS PREPARED TO MEET AT THE TIME. YOU
AGREED TO ESTABLISH A
TIME AND A DATE. HOWEVER, NO FURTHER INFORMATION OR RESPONSE HAS
BEEN RECEIVED FROM YOU.
"WHEN MAY WE EXPECT A DECISION ON YOUR PART?"
THE LETTER INDICATES THAT COPIES WERE SENT TO THE FEDERAL MEDIATION
AND CONCILIATION SERVICE AND THE FEDERAL SERVICE IMPASSES PANEL.
/19/ MECHANICS AND ADMINISTRATIVE SUPPLY TECHNICIANS MAKE UP THE TWO
LARGEST EMPLOYMENT GROUPS IN THE ARMY NATIONAL GUARD. THE GROUP OF 900
ARMY NATIONAL GUARD TECHNICIANS IS COMPRISED OF APPROXIMATELY 50 PERCENT
MECHANICS AND 50 PERCENT ADMINISTRATIVE SUPPLY TECHNICIANS, THE LATTER
INCLUDING APPROXIMATELY 100 ADMINISTRATIVE SUPPLY TECHNICIANS LOCATED AT
THE USP&FO.
/20/ COMPLAINANT EXHIBIT NO. 6.
/21/ HOWEVER THE PARTIES APPARENTLY REACHED SOME AGREEMENT ON THE
ISSUE OF LOWER-GRADE TECHNICIANS TEACHING HIGHER GRADE TECHNICIANS.
/22/ THE PROPOSAL IS ACTUALLY A LETTER SENT BY PRESIDENT PATERNO TO
CHAIRMAN TEDESCO.
/22A/ THE PAMPHLET (COMPLAINANT EXHIBIT NO. 7) PERMITTED CERTAIN
LIMITED EXCEPTIONS TO THE UNIFORM REQUIREMENT UPON SUPERVISORY
RECOMMENDATION AND CHIEF OF STAFF APPROVAL.
/23/ PART OF THIS DETERMINATION ALSO DEALT WITH THE QUESTION OF A
TECHNICIAN'S SEPARATION FROM THE NATIONAL GUARD AT THE TIME HE CEASES TO
BE A TECHNICIAN. THAT MATTER IS NOT RELEVANT TO THE ISSUES HEREIN.
/24/ COMPLAINANT EXHIBIT NO. 15.
/25/ ASSOCIATION OF CIVILIAN TECHNICIANS, INC., AND STATE OF NEW YORK
NATIONAL GUARD, FLRC NO. 72A-47.
/26/ WITH REGARD TO THE LATTER CONTENTION. THE UNION ALLEGES THAT THE
ACTIVITY PRESENTED A NEGOTIATING TEAM "SO ENCUMBERED WITH THE MILITARY
CHAIN OF COMMAND AND WITH SUCH A COLLECTIVELY CLOSED MIND THAT IT COULD
NOT FULFILL ITS OBLIGATIONS TO NEGOTIATE AS REQUIRED BY THE ORDER."
/27/ IN MY VIEW THE MANDATORY WEARING OF UNIFORMS AND THE USE OF
MILITARY TITLES ARE MATTERS AFFECTING WORKING CONDITIONS WITHIN THE
MEANING OF THE ORDER MUCH THE SAME AS ANY OTHER PLANT OR WORK RULE.
SUCH REQUIREMENTS IMPOSE OBLIGATIONS ON THE EMPLOYEE IN THE PERFORMANCE
OF HIS JOB AND FAILURE TO FOLLOW EITHER OF THESE REQUIREMENTS COULD
CONCEIVABLY LEAD TO DISCIPLINARY ACTION.
/28/ THE DEPARTMENT OF DEFENSE DETERMINED, SUPRA., THAT THE WEARING
OF THE UNIFORM AND THE USE OF MILITARY COURTESY (RANK OR TITLES) ARE
"INSEPARABLY RELATED", AND THE REGULATION IS EQUALLY APPLICABLE TO BOTH.
THE FLRC FOUND THIS DETERMINATION TO BE VALID.
/29/ RESPONDENT EXHIBIT NO. 2, ATTACHMENT 1.
/30/ COMPLAINANT EXHIBIT NO. 9.
/31/ RESPONDENT EXHIBIT NO. 20.
/32/ PERHAPS OCCASIONED IN PART BY THE CONTROVERSY HEREIN.
/33/ DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE,
ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS, A/SLMR NO. 322.
/34/ CF. CALIFORNIA NATIONAL GUARD, STATE MILITARY FORCES,
SACRAMENTO, CALIFORNIA, A/SLMR NO. 348; ANAHEIM POST OFFICE, U.S.
POSTAL SERVICE, ANAHEIM, CALIFORNIA, A/SLMR NO. 324; VETERANS
ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA, A/SLMR NO. 87.
/35/ ALTHOUGH CERTAINLY NOT UNIFORMLY FOLLOWED WITHIN THE ACTIVITY.
/36/ I NOTE THAT THE ACTIVITY'S ORAL PROPOSAL OF MARCH 23, 1972,
SUPRA, WOULD HAVE RELIEVED TECHNICIANS AT THE USP&FO (AND OTHERS) FROM
THE OBLIGATION TO WEAR UNIFORMS.
/37/ INDEED ARMY NATIONAL GUARD TECHNICIANS WERE GENERALLY NOT
WEARING THE UNIFORM DURING THIS PERIOD.
/38/ THROUGHOUT THIS PERIOD THE RELEVANT TERMS OF THE GOVERNING
REGULATIONS REMAINED THE SAME.
/39/ CHAIRMAN TEDESCO TESTIFIED THAT HE DID NOT RECEIVE THE
ACTIVITY'S JULY 28 CORRESPONDENCE UNTIL AFTER THE PAMPHLET WAS RELEASED
ON AUGUST 5, SINCE HE WAS IN ACTIVE DUTY MILITARY TRAINING STATUS AT
THAT TIME. BY LETTER DATED JULY 14, 1972, TO COLONEL MCCLURE, TEDESCO
ADVISED THE ACTIVITY THAT GEORGE PORTER WOULD BE ACTING STATE CHAIRMAN
FROM JULY 27 THROUGH AUGUST 13, 1972.
COLONEL MCCLURE TESTIFIED THAT HE DID NOT RECEIVE CHAIRMAN TEDESCO'S
LETTER WHEN HE SENT HIS CORRESPONDENCE OF JULY 28. HE FURTHER TESTIFIED
THAT HE ASSUMED TEDESCO MADE ARRANGEMENTS FOR RECEIVING ANYTHING MAILED
TO HIM DURING HIS ABSENCE.
UNDER THE CIRCUMSTANCES HEREIN, I FIND THAT THE ACTIVITY DID NOT
ATTEMPT TO BY-PASS INFORMING THE UNION OF THE PENDING ISSUANCE OF THE
PAMPHLET. IN ANY EVENT THE UNION BY THIS TIME HAD FULL KNOWLEDGE THAT
THE REGULATION WAS GOING TO BE ENFORCED AS OF SEPTEMBER AND AT MOST IT
WAS MERELY THE PRECISE MANNER IN WHICH THE NOTIFICATION WOULD BE
CONVEYED TO TECHNICIANS THAT WAS NOT PREVIOUSLY DISCUSSED.
/40/ THE ACTIVITY APPARENTLY RECOGNIZED ITS CONTINUING OBLIGATION
UNDER THE ORDER TO NEGOTIATE ON EXCEPTIONS TO THE UNIFORM REQUIREMENT
AND ITS CONDUCT WITH REGARD TO THE AUGUST 5, 1972, PAMPHLET DID NOT
FORECLOSE FURTHER BARGAINING ON THE SUBJECT.
/41/ THE ACTIVITY REINFORCED THIS POSITION IN ITS LETTER TO CHAIRMAN
TEDESCO OF JULY 28, 1972, WHEN IT STATED: "WHILE THERE IS NO OBJECTION
TO THE IDEA OF STUDY GROUPS, IT IS POINTED OUT THAT THE PROCEDURES FOR
REQUESTING EXCEPTIONS HAVE BEEN THOROUGHLY DISCUSSED IN THE PAST. THE
CHIEF OF STAFF TO THE GOVERNOR WILL CONSIDER ANY RECOMMENDATIONS WITHIN
THE GUIDELINES WHICH HAVE BEEN PREVIOUSLY STATED."
/42/ THE UNION ALSO ALLEGES THAT THE ACTIVITY: ENGAGED IN DILATORY
TACTICS DURING NEGOTIATIONS; NEVER SHOWED AN INTENT TO NEGOTIATE
DIFFICULT MATTERS; AND ACCEDED ONLY TO PETTY UNCONTROVERSIAL ITEMS. I
CONCLUDE THAT THE COMPLAINANT HAS NOT MET ITS BURDEN OF PROOF WITH
REGARD TO THESE ALLEGATIONS.
/43/ I HAVE FOUND THAT RESPONDENT VIOLATED THE ORDER BY UNILATERALLY
CHANGING A CONDITION OF EMPLOYMENT WHEN IT, BY DIRECTIVE REQUIRED
CERTAIN OF ITS TECHNICIANS TO USE MILITARY TITLES. HOWEVER I HAVE ALSO
FOUND THAT IT HAS NOT BEEN ESTABLISHED THAT RESPONDENT'S ENFORCEMENT OF
NGR 690-2, BY ISSUANCE OF THE PAMPHLET ON AUGUST 5, 1972, CONSTITUTED A
VIOLATION OF THE ORDER. SINCE IT APPEARS TO ME THAT THE USE OF MILITARY
TITLES AND THE WEARING OF UNIFORMS ARE TO BE CONSIDERED TOGETHER AND
SINCE NO VIOLATION OF THE ORDER WAS ESTABLISHED WITH REGARD TO
RESPONDENT'S REQUIREMENT THAT ALL TECHNICIANS MUST NOW WEAR UNIFORMS, IT
FOLLOWS THAT RANK MUST ALSO BE USED. ACCORDINGLY I WILL NOT RECOMMEND
THAT THE ACTIVITY WITHDRAW ITS DIRECTIVES OF MAY 1971, AND REINSTITUTE
THE PRACTICE WHICH PREVAILED PRIOR TO THEIR ISSUANCE.
4 A/SLMR 440; P. 675; CASE NO. 41-3408(CA); SEPTEMBER 30, 1974.
UNITED STATES NAVAL ORDNANCE STATION,
UNITED STATES DEPARTMENT OF THE NAVY,
DEPARTMENT OF DEFENSE,
LOUISVILLE, KENTUCKY
A/SLMR NO. 440
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
LODGE 830 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO (COMPLAINANT), AGAINST THE NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY (RESPONDENT). IT WAS ALLEGED THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER BY THE ACTIONS OF
ONE OF ITS SUPERVISORS IN ALLEGEDLY TEARING UP AN INSERT TO THE
NEGOTIATED AGREEMENT AND STATING THAT THE AGREEMENT WAS "NO GOOD."
THE EVIDENCE REVEALED THAT TWO INDIVIDUALS WHO WERE EMPLOYED IN THE
RESPONDENT'S PRINT SHOP WERE DIRECTED TO WORK IN THE PRINT SHOP'S
BINDERY SECTION ON A TEMPORARY BASIS. THE TWO EMPLOYEES TOOK THE
POSITION THAT THE NEGOTIATED AGREEMENT PROHIBITED SUCH TEMPORARY
ASSIGNMENTS, AND SHOWED THE PRINT SHOP SUPERVISOR AN INSERT TO THE
AGREEMENT WHICH WAS THEN BEING PRINTED AND BOUND IN THE PRINT SHOP.
DURING THE ENSUING CONVERSATION THE SUPERVISOR TORE THE INSERT IN HALF.
BASED UPON HIS CREDIBILITY RESOLUTIONS AND THE ESTABLISHED PRINT SHOP
CUSTOM OF DESTROYING MARKED DOCUMENTS, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE TEARING OF THE MARKED AGREEMENT INSERT DID NOT
CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. IN THIS
REGARD, HE NOTED THAT THE SUPERVISOR MADE NO SPECIAL SHOW OR DISPLAY OF
TEARING THE INSERT, AGREED WITH THE TWO EMPLOYEES THAT THEY COULD
CONSULT WITH THE COMPLAINANT SINCE THEY DISAGREED WITH HIM, AND STATED
THAT HE WOULD REVIEW THEIR JOB DESCRIPTION TO SEE IF THEY COULD GET
CREDIT FOR THEIR ASSIGNMENT TO THE BINDERY SECTION. THE ADMINISTRATIVE
LAW JUDGE FURTHER CONCLUDED THAT THE SUPERVISOR DID NOT STATE THAT THE
AGREEMENT WAS "NO GOOD," BUT, RATHER, IN RESPONSE TO A QUESTION ADVISED
THE EMPLOYEES THAT HE DID NOT FEEL THE AGREEMENT WAS RELEVANT IN THAT
SITUATION. THE ADMINISTRATIVE LAW JUDGE ALSO CONCLUDED THAT THE RECORD
DID NOT ESTABLISH THAT THE RESPONDENT HAD ENGAGED IN CONDUCT WHICH
VIOLATED SECTION 19(A)(2) AND (6) OF THE ORDER. ACCORDINGLY, HE
RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THIS CASE, AND NOTING THAT NO
EXCEPTIONS WERE FILED THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY.
UNITED STATES NAVAL ORDNANCE STATION,
UNITED STATES DEPARTMENT OF THE NAVY,
DEPARTMENT OF DEFENSE,
LOUISVILLE, KENTUCKY
AND
LOCAL LODGE 830 OF THE
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
ON JULY 31, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR
PRACTICE AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 41-3408(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
IN THE MATTER OF
UNITED STATES NAVAL ORDNANCE STATION
UNITED STATES DEPARTMENT OF NAVY
DEPARTMENT OF DEFENSE
LOUISVILLE, KENTUCKY
AND
LOCAL LODGE 830 OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO
EDWARD BORDA, ESQ.
NAVY LABOR RELATIONS ADVISOR
DEPARTMENT OF THE NAVY
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
WASHINGTON, D.C. 20390
LEWIS S. SCHMIDT
GRAND LODGE REPRESENTATIVE
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS
AFL-CIO
6500 PEARL ROAD, SUITE 200
CLEVELAND, OHIO 44130
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON AUGUST 20, 1973, UNDER EXECUTIVE
ORDER 11491, AS AMENDED (HEREIN CALLED THE ORDER) BY LOCAL LODGE 830,
INTERNATION ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO
(HEREAFTER CALLED THE COMPLAINANT OR THE UNION) AGAINST UNITED STATES
NAVAL ORDNANCE STATION, UNITED STATES DEPARTMENT OF NAVY, DEPARTMENT OF
DEFENSE, LOUISVILLE, KENTUCKY (HEREINAFTER CALLED THE ACTIVITY OR
RESPONDENT) A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES FOR THE ATLANTA REGION
ON JANUARY 7, 1974.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON MARCH 12,
1974 IN LOUISVILLE, KENTUCKY. ALL PARTIES WERE REPRESENTED AND AFFORDED
A FULL OPPORTUNITY TO BE HEARD AND TO PRESENT WITNESSES AND TO INTRODUCE
OTHER RELEVANT EVIDENCE ON THE ISSUES INVOLVED. UPON THE CONCLUSION OF
THE TAKING OF TESTIMONY, BOTH PARTIES WERE GIVEN AN OPPORTUNITY TO
PRESENT ORAL ARGUMENTS AND TO FILE BRIEFS. /1/
UPON THE ENTIRE RECORD HEREIN, INCLUDING THE RELEVANT EVIDENCE
ADDUCED AT THE HEARING AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
AT ALL TIMES MATERIAL HEREIN THE UNION AND THE ACTIVITY HAVE BEEN
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING CERTAIN CIVILIAN
EMPLOYEES AT THE ACTIVITY, INCLUDING ROBERT WOOD AND PAUL BEGLEY.
ON JUNE 5, 1973, MR. WOOD AND MR. BEGLEY WERE EMPLOYED AS WRAPPERS IN
THE MAIL SECTION OF THE PRINT SHOP. ALSO PART OF THE PRINT SHOP LOCATED
ADJACENT TO THE MAIL SECTION IS THE BINDERY SECTION. ON JUNE 5 MR.
MOORMAN, LEADER BINDER WORKER, CALLED TO MR. WOOD AND MR. BEGLEY TO ASK
THEM TO WORK IN THE BINDERY SECTION BECAUSE THE BINDERY SECTION HAD A
LOT OF WORK. MR. BEGLEY WENT OVER TO MR. MOORMAN WITH A FOUR PAGE
INSERT CONTAINING ARTICLE 15 OF THE COLLECTIVE BARGAINING AGREEMENT.
SECTION 7 OF THAT ARTICLE HAD BEEN UNDERLINED IN RED BY MR. BEGLEY. /2/
MR. BEGLEY HANDED THE CONTRACT INSERT TO MR. MOORMAN AND SAID THAT HE
DID NOT BELIEVE MR. MOORMAN COULD ASSIGN THEM TO THE BINDERY SECTION.
MR. MOORMAN STATED THAT HE COULD.
MR. MOORMAN SAW MR. MAURICE COPE, THE PRINT SHOP SUPERVISOR, STANDING
NEARBY. HE WENT OVER TO MR. COPE, HANDED HIM THE CONTRACT INSERT,
STATING THAT MR. BEGLEY HAD GIVEN IT TO HIM. MR. MOORMAN ADVISED MR.
COPE THAT MR. WOOD AND MR. BEGLEY DID NOT WANT TO ASSIST IN THE BINDERY
SECTION. MR. COPE FOLLOWED BY MR. MOORMAN WALKED OVER TO WHERE MR.
BEGLEY WAS STANDING. MR. WOOD ALSO WALKED OVER.
AS TO THE SUBSEQUENT CONVERSATION THERE IS SOME DIFFERENCE BETWEEN
THE VERSIONS OF THE VARIOUS WITNESSES AS TO WHAT PRECISELY OCCURRED AND
WAS SAID.
MR. WOOD TESTIFIED THAT IN RESPONSE TO HIS QUESTION MR. COPE REPLIED
THAT HE COULD MOVE THEM AROUND ANYWHERE THAT HE WANTED WITHOUT A DETAIL.
MR. WOOD REPLIED THAT HE THOUGHT A PERSON WAS SUPPOSED TO HAVE A DETAIL
/3/ FOR 30 DAYS. MR. WOOD THEN TESTIFIED THAT HE THEN ASKED MR. COPE ".
. . YOU MEAN THE UNION CONTRACT ISN'T ANY GOOD . . ." AND MR. COPE
REPLIED "NO" AND THEN TORE UP THE PAGES OF THE CONTRACT THAT HE HELD.
/4/ MR. WOOD FURTHER TESTIFIED THAT THERE THEN WAS SOME IMPENDING BIG
LAYOFF AND THAT THESE EMPLOYEES WOULD PROBABLY HAVE TO WORK ALMOST ANY
PLACE BEFORE THAT PROBLEM WAS OVER. MR. COPE FURTHER ALLEGEDLY STATED
THAT MR. WOOD WOULD PROBABLY BE SAFE BECAUSE OF HIS LONG GOVERNMENT
SERVICE. /5/ MR. COPE THEN LEFT THE AREA.
MR. WOOD TESTIFIED THAT MR. COPE WAS PERTURBED, ALTHOUGH HE DID NOT
SWEAR OR SHOUT. /6/ MR. WOOD AT FIRST CHARACTERIZED MR. COPE AS ANGRY
AND THEN MODIFIED HIS OBSERVATION CHARACTERIZING IT ONLY AS PERTURBED.
THE MAIN OBJECTION THAT MR. WOOD AND MR. BEGLEY HAD TO WORKING IN THE
BINDERY AREA WAS THAT IT WAS A HIGHER PAYING JOB AND WHEN THEY WORKED AT
IT THEY DID NOT RECEIVE THE HIGHER PAY AND IT WAS NOT RECORDED ON THEIR
RECORDS THAT THEY HAD PERFORMED WORK AT THE HIGHER CLASSIFICATION. THEY
FELT THIS RECORDING OF THIS WORK WAS IMPORTANT IF THEY APPLIED FOR
HIGHER PAYING POSITIONS. THIS ENTIRE CONVERSATION LASTED NOT MORE THAN
5 MINUTES.
IN THE AREA OF THE CONVERSATION /7/ THERE WERE MANY COPIES OF THE
FOUR PAGE CONTRACT INSERT THAT MR. BEGLEY HAD GIVEN TO MR. MOORMAN.
THESE PAGES WERE BEING INSERTED IN THE BACK OF THE CONTRACT WHICH WAS
ALREADY BOUND. /8/
MR. BEGLEY SUBSTANTIALLY CORROBORATED MR. WOOD'S VERSION EXCEPT HE
TESTIFIED THAT IN REPLY TO MR. WOOD'S INQUIRY, MR. COPE STATED THAT
WASN'T THE WAY HE READ THE CLAUSE OF THE CONTRACT, RIPPED THE INSERT IN
HALF AND SAID THAT THIS THING IS "NO DAMN GOOD" AND THAT HE HAD BEEN
THROUGH IT IN THE CONTEXT THAT HE WAS ASKING FOR EMPLOYEE COOPERATION SO
IT COULD BE AVOIDED. MR. BEGLEY IN ADDITION TESTIFIED THAT MR. COPE WAS
MAD.
MR. COPE TESTIFIED THAT WHEN HE APPROACHED THE EMPLOYEES THEY ADVISED
HIM THAT ACCORDING TO SECTION 7 OF ARTICLE THEY COULDN'T BE MOVED. MR.
COPE ADVISED THE EMPLOYEES THAT HE NEEDED THEIR HELP ON A RUSH JOB. HE
TRIED TO APPEAL TO THEM FOR HELP. MR. BEGLEY STATED, HOWEVER, THAT
ACCORDING TO THE CONTRACT THEY COULDN'T BE MOVED. MR. COPE REPLIED THAT
THIS ARTICLE DIDN'T" PERTAIN TO THIS SITUATION " AND TESTIFIED THAT HE
PROBABLY SAID HE COULD MOVE THEM FOR A PERIOD OF 29 DAYS. MR. COPE
TESTIFIED THAT HE THOUGHT MR. BEGLEY MIGHT HAVE SAID THAT IN OTHER WORDS
THIS PARTICULAR ARTICLE DOESN'T MEAN ANYTHING. MR. COPE DENIED HAVING
SAID THAT EITHER THE CONTRACT OR THE ARTICLE WAS NO GOOD. FURTHER,
ALTHOUGH MR. COPE DENIES HAVING MENTIONED THE WORD "LAYOFF," HE
TESTIFIED THAT IN CONNECTION TO ASKING THE EMPLOYEES TO HELP OUT AND
WORK WHERE NEEDED, HE MIGHT HAVE ADVISED THE TWO EMPLOYEES THAT HE WAS
TRYING TO SCRAPE UP THE MONEY TO PAY SALARIES FOR NEXT YEAR AND THAT THE
MORE TIME HE COULD SPEND DEVOTED TO THAT OBJECTIVE, THE BETTER THE
CHANCE OF OBTAINING THE NECESSARY FUNDS. HE FURTHER TESTIFIED THAT HE
MIGHT HAVE SAID THAT HE WOULD RATHER NOT LOSE ANYBODY, AND THAT HE WOULD
RATHER SEE EVERYBODY GAINFULLY EMPLOYED.
MR. COPE TESTIFIED THAT NEAR THE CLOSE OF THE CONVERSATION, WHICH
LASTED ONLY ABOUT 5 MINUTES, HE TORE THE FOUR PAGE CONTRACT INSERT IN
HALF BECAUSE IT WAS MARKED AND THIS WAS THE CUSTOM IN THE PRINT SHOP
WHEN SOME PIECE OR PAGE OF PRINTING WAS DISFIGURED. MR. WOOD AND MR.
BEGLEY THEN ALLEGEDLY ADVISED HIM THAT THEY WOULD TAKE IT UP WITH THE
UNION. HE ADVISED THEM THAT THAT WAS THEIR PREROGATIVE. MR. COPE
TESTIFIED THAT THE TWO EMPLOYEES DID SAY THAT THEY OBJECTED TO BEING
MOVED TO HIGH PAYING JOBS BECAUSE THEY WERE NOT GETTING CREDIT FOR THAT
TIME AND THAT HE ADVISED THEM THAT HE WOULD REVIEW THE JOB DESCRIPTIONS
AND, IF NECESSARY, REWRITE THEM TO MAKE SURE THAT THE EMPLOYEES RECEIVED
CREDIT FOR THE TIME THEY SPENT.
IN FACT, MR. COPE TESTIFIED HE REVIEWED AND REWROTE THE JOB
DESCRIPTIONS IMMEDIATELY, MET WITH THE TWO EMPLOYEES AND A UNION
REPRESENTATIVE, AND DISCUSSED THE NEW JOB DESCRIPTIONS.
IN LATE MAY MR. COPE ADVISED THE ENTIRE STAFF THAT THERE HAD BEEN A
BUDGET CUT AND THAT HE WAS TRYING TO RAISE FUNDS IN ORDER TO KEEP
EVERYONE GAINFULLY EMPLOYED.
MR. MOORMAN TESTIFIED THAT HE WAS STANDING BEHIND MR. COPE DURING THE
CONVERSATION, WASN'T REALLY PAYING ATTENTION, AND DIDN'T HEAR MOST OF
WHAT WAS SAID.
ALTHOUGH THE VERSIONS SEEM SUBSTANTIALLY DIFFERENT, IN FACT, THERE
ARE ONLY TWO MAIN AREAS OF DIFFERENCE THAT ARE RELEVANT, AND THEY ARE
NOT TO GREAT.
IT IS FOUND THAT MR. COPE DID NOT SAY THAT EITHER THE CONTRACT OR THE
ARTICLE WAS NO GOOD BUT RATHER, I CREDIT MR. WOOD AND MR. COPE THAT MR.
WOOD, IN THE CONTEXT OF DISCUSSING MR. COPE'S RIGHT TO MOVE EMPLOYEES,
STATED OR ASKED SOMETHING TO THE EFFECT OF WHETHER MR. COPE MEANT THAT
THE CONTRACT WASN'T ANY GOOD AND MR. COPE INDICATED AGREEMENT BY SAYING
THAT IT WASN'T OR IT DIDN'T PERTAIN TO THAT SITUATION. /9/
IT IS FOUND, AS TESTIFIED BY MR. WOOD AND MR. BEGLEY THAT MR. COPE
MENTIONED A POSSIBLE LAYOFF, AND THAT IT WOULD PROBABLY NOT AFFECT MR.
WOOD. HOWEVER IT IS FURTHER FOUND AS MR. COPE TESTIFIED, THAT HE WAS
SEEKING THE COOPERATION AND ASSISTANCE OF THESE EMPLOYEES AND WAS
ADVISING AND REMINDING THEM OF THE BUDGET CUT, THE FINANCIAL PROBLEMS
AND THAT HE WOULD RATHER SEE EVERYONE GAINFULLY EMPLOYED. IT IS FOUND
THAT MR. COPE DID USE THE WORD "LAYOFF;" ALTHOUGH HE DENIES IT HIS
ADMITTED STATEMENTS ARE TANTAMOUNT TO ADVISING THE EMPLOYEES OF A
POSSIBILITY OF A LAYOFF AND THE REASONS THEREFORE.
IN THE COMPLAINT IN THIS CASE THE UNION ALLEGES THAT THE ACTIVITY
VIOLATED SECTIONS 19(A)(1), (2), AND (6) OF THE ORDER BASED ON THE FACTS
THAT ON JUNE 5 MR. COPE "TORE UP A LABOR CONTRACT IN THE PRESENCE OF
APPROXIMATELY FIFTEEN (15) BARGAINING UNIT EMPLOYEES DURING A DISCUSSION
ABOUT AN ALLEGED CONTRACT VIOLATION AND EMPHATICALLY INFORMED THE
EMPLOYEES THAT THE CONTRACT WAS NO GOOD."
A. ALLEGED VIOLATION OF SECTION 19(A)(1) OF THE ORDER
SECTION 19(A)(1) OF THE ORDER MAKES IT AN UNFAIR LABOR PRACTICE FOR
AN ACTIVITY TO "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER . . ." THE ISSUE PRESENTED
THEN IS WHETHER THE STATEMENTS AND CONDUCT OF MR. COPE ON JUNE 5
INTERFERED WITH, RESTRAINED OR COERCED EMPLOYEES IN THE EXERCISE OF
THEIR PROTECTED RIGHTS.
THE COMPLAINANT ALLEGES THAT MR. COPE'S STATEMENTS WERE MADE IN THE
PRESENCE OF FIFTEEN EMPLOYEES. ALTHOUGH THE RECORD ESTABLISHES THAT A
NUMBER OF OTHER EMPLOYEES WERE IN THE WORK AREA, BECAUSE OF THE NOISE
AND DISTANCES INVOLVED, IT DOES NOT ESTABLISH THAT THEY WERE AWARE OF OR
SHOULD HAVE BEEN AWARE OF WHAT MR. COPE WAS SAYING AND DOING. THE
RECORD DOES ESTABLISH, HOWEVER, THAT MR. WOOD, MR. BEGLEY AND MR.
MOORMAN, WHO WERE PRESENT AT THE CONVERSATION, WERE EMPLOYEES IN THE
COLLECTIVE BARGAINING UNIT REPRESENTED BY THE UNION. IT IS ALSO CLEAR
THAT MR. WOOD AND MR. BEGLEY WERE ENGAGING IN ACTIVITY PROTECTED BY THE
ORDER WHEN THEY BROUGHT TO MR. COPE'S ATTENTION THERE CONTENTION THAT
THE ATTEMPT TO MOVE THEM TO THE BINDERY SECTION WOULD VIOLATE PART OF
THE COLLECTIVE BARGAINING AGREEMENT. THIS ATTEMPT ON THE PART OF MR.
WOOD AND MR. BEGLEY TO INVOKE THOSE CONTRACT RIGHTS SECURED BY THE
UNION, AT LEAST AS THEY INTERPRETED THEM, IS ONE OF THE MOST BASIC
ACTIVITIES THAT THE ORDER IS DESIGNED TO SECURE AND PROTECT.
FINALLY THEN IT MUST BE DETERMINED WHETHER MR. COPE'S STATEMENTS AND
CONDUCT WOULD FORESEEABLY HAVE THE EFFECT OF INTERFERRING WITH,
RESTRAINING, AND COERCING THESE EMPLOYEES IN EXERCISING THEIR PROTECTED
RIGHTS. AS HAS BEEN FOUND ABOVE WHILE DISCUSSING MR. COPE'S POSITION
THAT HE COULD, DESPITE ARTICLE 15 SECTION 7 OF THE CONTRACT, ASSIGN THE
TWO EMPLOYEES TO THE BINDERY SECTION, MR. WOOD COMMENTED, OR ASKED, IF
THAT MEANT THAT THE CONTRACT OR CLAUSE WAS NO GOOD OR DIDN'T MEAN ANY
THING. IN THE CONTEXT OF THAT DISCUSSION AND MR. COPE'S POSITION THAT
SECTION 7 WAS IRRELEVANT, MR. COPE REPLIED THAT IT WASN'T. IN THESE
CIRCUMSTANCES, AND CLEARLY IN REPLY TO MR. WOOD, WHO MIGHT HAVE USED AN
UNFORTUNATE PHRASE, MR. COPE WAS MERELY ADVISING THE EMPLOYEES THAT HE
INTERPRETED THE CONTRACT DIFFERENTLY THAN THEY DID AND THAT THE SPECIFIC
CLAUSE UPON WHICH THEY WERE RELYING, WAS NOT APPLICABLE TO THAT
SITUATION. IN RESPONSE TO MR. WOOD'S QUESTION, MR. COPE WAS NOT
GENERALLY SAYING THE CONTRACT WAS NO GOOD OR GENERALLY DEROGATING THE
CONTRACT AND THE UNION, BUT RATHER HE WAS STATING THAT IN MR. WOOD'S
TERMS, THE CLAUSE WASN'T "ANY GOOD" IN SO FAR AS THE EMPLOYEES CONTENDED
IT PREVENTED THEM FROM BEING SHIFTED; HE, IN CONTEXT, WAS CLEARLY
ADVISING THEM THAT HE DID NOT FEEL THE CONTRACT CLAUSE WAS RELEVANT TO
THAT DISPUTE AND DID NOT PREVENT HIM FROM MOVING THE EMPLOYEES.
IT IS CONCLUDED THAT WHEN A SUPERVISOR MERELY ADVISES EMPLOYEES, AT
THEIR REQUEST, OF HIS INTERPRETATION OF A CONTRACT CLAUSE, ABSENT ANY
PROMISES OF BENEFITS OR THREATS OF RETALIATION, HE DOES NOT VIOLATE
SECTION 19(A)(1) OF THE ORDER.
THE RECORD ESTABLISHES THAT MR. COPE TORE UP MR. BEGLEY'S CONTRACT
INSERT TOWARDS THE CLOSE OF THEIR DISCUSSION. THE RECORD FURTHER
INDICATES THAT WHILE MR. COPE WAS ADVISED BY MR. MOORMAN THAT MR. BEGLEY
HAD GIVEN MR. MOORMAN THE CONTRACT INSERT, MR. COPE WAS NOT ADVISED THAT
IT WAS MARKED THERE WERE MANY COPIES OF THE SAME INSERT NEARBY BEING
WORKED ON, AND IT WAS A HABIT OR CUSTOM IN THE PRINTING ROOM TO DESTROY
MARKED DOCUMENTS. MR. COPE'S MOTIVATION IN TEARING UP THE CONTRACT IS
IRRELEVANT, IF SUCH ACTION WOULD FORESEEABLY HAVE THE EFFECT OF
INTERFERRING WITH EMPLOYEE RIGHTS, UNLESS THERE WERE SOME OVERRIDING
BUSINESS CONSIDERATION.
IN ALL THE CIRCUMSTANCES HERE PRESENT IT COULD HARDLY BE CONCLUDED
THAT THE TEARING UP OF THE CONTRACT CONSTITUTED CONDUCT SUFFICIENTLY
SERIOUS TO CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
/10/ IN THIS REGARD IT IS NOTED THAT APPARENTLY MR. COPE MADE NO SPECIAL
SHOW OR DISPLAY WHEN HE TORE UP THE CONTRACT INSERT; HE AGREED WITH THE
EMPLOYEES THAT THEY COULD CONSULT WITH THE UNION SINCE THEY DISAGREED
WITH HIM; AND THAT HE WOULD REVIEW THEIR JOB DESCRIPTIONS TO SEE IF
THEY COULD GET CREDIT FOR THE ASSIGNMENT TO THE BINDERY SECTION. /11/
WITH RESPECT TO THE MENTION OF "LAYOFF" THIS WAS IN THE CONTEXT OF
ASKING EMPLOYEES' COOPERATION IN THE WORK ASSIGNMENT BECAUSE THE
ACTIVITY HAD EXPERIENCED A BUDGET CUT AND MR. COPE WAS TRYING TO RAISE
ADDITIONAL FUNDS. THIS HAD BEEN RAISED DURING THE LATTER PART OF MAY
WITH THE ENTIRE STAFF AND HE WAS AGAIN, IN THESE CIRCUMSTANCES, SEEKING
THE COOPERATION OF EMPLOYEES SO THAT HE COULD SPEND TIME SEEKING
ADDITIONAL FUNDS. THE RECORD DOES NOT ESTABLISH THAT HE THREATENED THEM
WITH A LAYOFF BECAUSE THEY WERE ENGAGING IN ANY PROTECTED ACTIVITY, BUT
MERELY, WAS SEEKING COOPERATION IN LIGHT OF THESE FINANCIAL
DIFFICULTIES. AGAIN, RATHER THAN THREATENING THEM FOR ENGAGING IN
PROTECTED ACTIVITY, HE ADVISED THEM THAT HE WOULD REVIEW THEIR COMPLAINT
OF NOT RECEIVING CREDIT FOR THE WORK ASSIGNMENT, AND SEE WHAT COULD BE
DONE.
IN LIGHT OF ALL OF THE FOREGOING, AND NOTING THERE WAS NO ALLEGATIONS
OF UNION ANIMUS ON THE PART OF THE ACTIVITY, IT IS CONCLUDED THAT THE
ACTIVITY DID NOT ENGAGE IN CONDUCT WHICH VIOLATED SECTION 19(A)(1) OF
THE ORDER.
B. ALLEGED VIOLATION OF SECTION 19(A)(2) OF THE ORDER.
SECTION 19(A)(2) OF THE ORDER PROVIDES THAT IT IS AN UNFAIR LABOR
PRACTICE FOR AN ACTIVITY TO "ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A
LABOR ORGANIZATION BY DISCRIMINATING IN REGARD TO HIRING, TENURE,
PROMOTION OR OTHER CONDITIONS OF EMPLOYMENT."
THE RECORD ESTABLISHES THAT THE SHIFTING OF MR. BEGLEY AND MR. WOOD
TO HELP OUT IN THE BINDERY SECTION WAS THE CUSTOM AND PRACTICE AND HAD
OCCURRED ON MANY OCCASIONS PRIOR TO JUNE 5. THE RECORD TOTALLY FAILS TO
ESTABLISH THAT THEY WERE, ON JUNE 5, MOVED TO THE BINDERY SECTION
BECAUSE OF THEIR UNION MEMBERSHIP /12/ OR BECAUSE THEY ENGAGED IN ANY
OTHER ACTIVITY PROTECTED BY THE ORDER. IN FACT THE ONLY OTHER POSSIBLE
PROTECTED OR UNION ACTIVITY THAT THEY ENGAGED IN, ACCORDING TO THE
RECORD, WAS THE ATTEMPT TO ENFORCE THE CONTRACT IN SUCH A WAY AS TO
PREVENT THEIR ASSIGNMENT TO THE BINDERY SECTION AND THEY ENGAGED IN THAT
CONDUCT ONLY AFTER THEY HAD BEEN ASSIGNED TO THE BINDERY SECTION BY MR.
MOORMAN. IN SUCH CIRCUMSTANCES IT CAN BE HARDLY FOUND THAT THEY WERE SO
ASSIGNED TO THE BINDERY SECTION BECAUSE THEY ENGAGED IN CONDUCT
SUBSEQUENT TO THE ASSIGNMENT. THE RECORD DOES NOT ESTABLISH ANY OTHER
ACTION TAKEN BY THE ACTIVITY WHICH COULD BE CONSIDERED "DISCRIMINATION"
WITHIN THE MEANING OF SECTION 19(A)(2) OF THE ORDER.
IN THESE CIRCUMSTANCES IT IS CONCLUDED THAT THE RECORD DOES NOT
ESTABLISH THAT THE ACTIVITY ENGAGED IN CONDUCT WHICH VIOLATED SECTION
19(A)(2) OF THE ORDER.
C. ALLEGED VIOLATION OF SECTION 19(A)(6) OF THE ORDER:
SECTION 19(A)(6) OF THE ORDER PROVIDES THAT IS AN UNFAIR LABOR
PRACTICE FOR AN ACTIVITY TO "REFUSE TO CONSULT, CONFER, OR NEGOTIATE
WITH A LABOR ORGANIZATION AS REQUIRED BY THIS ORDER. . ."
THE RECORD HEREIN DOES NOT CONTAIN ANY EVIDENCE TO THE EFFECT THAT
MR. COPE AT ANY TIME REFUSED ANY REQUEST BY ANY UNION REPRESENTATIVE
/13/ TO CONSULT, CONFER OR NEGOTIATE ABOUT ANY MATTER. IN FACT HE MADE
IT QUITE CLEAR TO MR. WOOD AND MR. BEGLEY THAT THEY WERE FREE TO CONSULT
A UNION REPRESENTATION AND HE DID SUBSEQUENTLY MEET WITH THE UNION
REPRESENTATIVE AND THE TWO EMPLOYEES TO DISCUSS THE WORK ASSIGNMENT,
PROBLEM AND REVISED JOB DESCRIPTION.
THE ONLY POSSIBLE VIOLATION OF THE DUTY TO NEGOTIATE /14/ MIGHT BE A
CONTENTION THAT THE ACTIVITY UNILATERALLY CHANGED WORKING CONDITIONS BY
ASSIGNING THE TWO EMPLOYEES TO THE BINDERY SECTION. HOWEVER, AS
DISCUSSED ABOVE THE RECORD ESTABLISHES THAT THE PAST PRACTICE AND CUSTOM
WAS FOR THESE TWO EMPLOYEES, QUITE OFTEN, TO BE ASSIGNED TO THE BINDERY
SECTION WHEN NEEDED. FURTHER THE UNION SUBMITTED NO EVIDENCE, OTHER
THAN THE GENERAL POSITION OF THE TWO EMPLOYEES, THAT IN FACT MR. COPE'S
POSITION THAT HE COULD ASSIGN THE EMPLOYEES, VIOLATED ARTICLE 15,
SECTION 7 OF THE CONTRACT. IN ANY EVENT, WHERE THE EXISTING PRACTICE
WAS TO PERMIT SUCH ASSIGNMENTS, THIS WOULD AT MOST CONSTITUTE A BREACH
OF THE COLLECTIVE BARGAINING AGREEMENT INVOLVING AN INTERPRETATION OF
THE CONTRACT, BUT NOT A REFUSAL TO BARGAIN. IN FACT MR. COPE INDICATED
HE WAS WILLING TO, AND DID, UPON REQUEST, MEET WITH THE UNION
REPRESENTATIVE CONCERNING THIS MATTER.
THE RECORD THEREFORE DOES NOT ESTABLISH THAT THE ACTIVITY IN ANY
REFUSED TO NEGOTIATE IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
IN VIEW OF ALL OF THE FOREGOING, I CONCLUDE THAT THE RECORD HEREIN
DOES NOT ESTABLISH THAT THE RESPONDENT ACTIVITY VIOLATED SECTION
19(A)(1), (2) AND (6) OF THE ORDER.
UPON THE BASIS OF THE ABOVE FINDINGS AND CONCLUSIONS, I RECOMMEND
THAT THE COMPLAINT HEREIN BE DISMISSED.
DATED: JULY 31, 1974
WASHINGTON, D.C.
/1/ THE ACTIVITY FILED A BRIEF ON APRIL 15, 1973. THE UNION FILED NO
BRIEF.
/2/ SECTION 7 OF ARTICLE 15 STATES:
"THE EMPLOYER AGREES TO COMPENSATE EMPLOYEES ON THE BASIS OF THE
HIGHEST LEVEL OF DUTIES
PERFORMED FOR A REPRESENTATIVE PERIOD OF TIME. IN THIS REGARD
UNGRADED UNIT EMPLOYEES WHO ARE
UNASSIGNED TO AND PERFORM A MAJORITY OF THEIR DUTIES ABOVE THE LEVEL
OF THEIR RATING FOR
PERIODS OF NINETY (90) DAYS OR MORE, OR WHERE IT CAN REASONABLY BE
DETERMINED IN ADVANCE THAT
SUCH ASSIGNMENTS WILL BE MADE FOR PERIODS IN EXCESS OF NINETY (90)
DAYS, SUCH EMPLOYEES SHALL
BE TEMPORARILY PROMOTED TO THE HIGHER LEVEL POSITION NO LATER THAN
THE NEXT PAY PERIOD,
PROVIDED SUCH EMPLOYEES MEET THE MINIMUM REQUIREMENTS FOR PROMOTION.
IT IS FURTHER AGREED
THAT THE EMPLOYER WILL REFRAIN FROM ROTATING HIGHER LEVEL DUTIES
AMONG EMPLOYEES TO AVOID
COMPENSATING EMPLOYEES AT THE HIGHER LEVEL.
/3/ BY "DETAIL" THE EMPLOYEES WERE APPARENTLY REFERRING TO SOME
FORMAL WRITTEN ACTION.
/4/ MR. COPE RETAINED POSSESSION OF THE TORN PAGES.
/5/ MR. BEGLEY HAD SUBSTANTIALLY LESS SERVICE THAN MR. WOOD.
/6/ ACCORDING TO MR. WOOD, MR. COPE'S VOICE WAS SOMEWHAT RAISED.
/7/ WITHIN 10 OR 15 FEED.
/8/ THERE WERE SOME OTHER EMPLOYEES IN THE GENERAL AREA, BUT THE
RECORD FAILED TO ESTABLISH, ESPECIALLY IN THE VIEW OF THE FACT THAT THE
EMPLOYEES WERE SOME DISTANCE AWAY AND A COLLATING MACHINE AND PRINTING
MACHINE WERE OPERATING AND MAKING SUBSTANTIAL NOISE, THAT THESE OTHER
EMPLOYEES OVER HEARD WHAT WAS SAID.
/9/ IT IS FOUND THAT THIS DIFFERENCE IN ANSWERS IS IMMATERIAL AND
MEAN VIRTUALLY THE SAME.
/10/ THIS DOES NOT MEAN THAT IN ALL CASES THE TEARING UP OF A
CONTRACT, OR PART OF A CONTRACT, WOULD NOT VIOLATE THE ORDER.
/11/ IN FACT THE EMPLOYEES DID CONSULT THE UNION AND SUBSEQUENTLY MET
WITH THE UNION REPRESENTATIVE AND MR. COPE.
/12/ THE RECORD FAILS TO ESTABLISH THAT MR. WOOD AND MR. BEGLEY WERE
ACTUALLY UNION MEMBERS OR THAT THE ACTIVITY KNEW THAT THEY WERE.
/13/ THERE IS NO EVIDENCE IN THE RECORD THAT ESTABLISHES THAT EITHER
MR. BEGLEY OR MR. WOOD WERE UNION REPRESENTATIVES.
/14/ THE POSITION OF THE UNION WAS NOT PRECISELY SET FORTH AT THE
HEARING AND THE UNION FILED NO BRIEF TO CLARIFY ITS CONTENTION.
4 A/SLMR 439; P. 670; CASE NO. 63-4784(CA); SEPTEMBER 30, 1974.
UNITED STATES AIR FORCE,
WEBB AIR FORCE BASE, TEXAS
A/SLMR NO. 439
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFL-CIO), LOCAL 1926
(COMPLAINANT) AGAINST THE UNITED STATES AIR FORCE, WEBB AIR FORCE BASE,
TEXAS (RESPONDENT), ALLEGING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS AMENDED, BY THE ISSUING OF
A DIRECTIVE REDUCING THE WEEKLY HOURS OF CERTAIN HOURLY-RATED
UNREPRESENTED EMPLOYEES WHILE AN ORGANIZING DRIVE WAS BEING CONDUCTED BY
THE COMPLAINANT AMONG SUCH EMPLOYEES. IT WAS ALLEGED FURTHER THAT THE
DIRECTIVE WAS ISSUED FOR THE PURPOSE OF DISCREDITING THE COMPLAINANT AND
TO DISCOURAGE MEMBERSHIP BY MAKING IT MORE DIFFICULT FOR PROSPECTIVE
MEMBERS TO PAY DUES.
THE COMPLAINANT IS THE EXCLUSIVE REPRESENTATIVE OF ALL CIVILIAN
NONSUPERVISORY EMPLOYEES AT THE BASE WHO ARE PAID FROM APPROPRIATED
FUNDS, BUT IT DOES NOT REPRESENT THE NON-APPROPRIATED FUND EMPLOYEES IN
WHICH THE ORGANIZING CAMPAIGN HEREIN WAS CONDUCTED. THE COMPLAINANT
UNDERTOOK AN ORGANIZING CAMPAIGN AMONG THE NON-APPROPRIATED FUND
EMPLOYEES AND, ON MAY 15, 1973, A NOTICE WAS POSTED ON BULLETIN BOARDS
OF AN ORGANIZING MEETING TO BE HELD ON MAY 22. THE PRIME ORGANIZERS OF
THE CAMPAIGN WERE THE MAIDS WHO WORKED IN THE VARIOUS QUARTERS ON THE
BASE AND WERE EMPLOYED BY THE BILLETING FUND.
FOR THE SEVEN MONTHS SINCE OCTOBER 1972, THE BILLETING FUND HAD
OPERATED AT A DEFICIT. ABOUT FEBRUARY 1973, THE ACCOUNTING DEPARTMENT
OF THE RESPONDENT MADE SUGGESTIONS THAT THE BILLETING FUND'S PROBLEMS
AROSE MAINLY FROM ITS LABOR WHICH WAS TOO COSTLY, AND IT SUGGESTED THAT
THE LABOR COST BE REDUCED. ON MAY 1, 1973, A NEW BILLETING OFFICER WAS
APPOINTED AND HE BECAME CUSTODIAN OF THE BILLETING FUND. THE CUSTODIAN
HAD BEEN INSTRUCTED BY, AMONG OTHERS, THE BASE COMMANDER TO DEVELOP A
PLAN TO MAKE THE BILLETING FUND PROFITABLE AND, PURSUANT TO THESE
INSTRUCTIONS, HE MADE A DETAILED STUDY FROM WHICH HE CONCLUDED THAT THE
ONLY WAY THAT A SAVINGS COULD BE EFFECTED AND A PROFIT SHOWN WAS CUTTING
LABOR (WHICH MEANT REDUCING THE MAIDS TO A 35-HOUR INSTEAD OF A 40-HOUR
WEEK), ELIMINATING THE MAID SUPERVISOR, DISCONTINUING SOME MAIDS'
DUTIES, INCREASING THE CHARGE FOR MAID SERVICE, AND INCREASING SOME OF
THE CHARGES TO TRANSIENTS. ALL THESE RECOMMENDATIONS WERE APPROVED BY
THE BASE COMMANDER ON MAY 31, 1973, AND HE ORDERED THAT THEY BE
IMPLEMENTED AS SOON AS POSSIBLE AND THAT ADEQUATE NOTICE BE GIVEN TO THE
AFFECTED PERSONNEL. ON JUNE 1, 1973, THE CUSTODIAN GAVE THE MAIDS
NOTICE OF THE REDUCTION IN HOURS EFFECTIVE JULY 1, 1973.
THE INSTANT COMPLAINT WAS PRECIPITATED BY THE REDUCTION IN WEEKLY
HOURS OF THE MAIDS AND THE CONSEQUENT REDUCTION IN THEIR WEEKLY
EARNINGS. SUCH CONDUCT WAS ALLEGED TO HAVE HAD A SUBSTANTIAL EFFECT ON
THE CAMPAIGN TO ORGANIZE THE NON-APPROPRIATED FUND EMPLOYEES, WITH SOME
OF THE MAIDS CONSTRUING THE REDUCTION IN HOURS AS RETALIATION BY THE
RESPONDENT FOR THEIR ORGANIZING EFFORTS.
IN HIS DECISION, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THERE
WAS NO EVIDENCE OF ANTI-UNION ANIMUS BY THE RESPONDENT. THUS, HE FOUND
THAT THE CUSTODIAN BELIEVED THAT THE PLAN HE HAD DEVELOPED WAS THE BEST
WAY TO CUT THE OPERATING DEFICITS OF THE BILLETING FUND AND, TO SHOW A
PROFIT AS HE HAD BEEN INSTRUCTED TO DO, AND THAT THE CUSTODIAN DID NOT
KNOW THAT THE ORGANIZING EFFORT WAS TAKING PLACE AT THE TIME WHEN HE WAS
WORKING ON THE PLAN. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE CASE, AND NOTING
PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
UNITED STATES AIR FORCE,
WEBB AIR FORCE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO), LOCAL 1926
ON AUGUST 6, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN
THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 63-4784 (CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
UNITED STATES AIR FORCE
WEBB AIR FORCE BASE, TEXAS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO) LOCAL 1926
APPEARANCES:
PETER EVANS
NATIONAL REPRESENTATIVE, AFGE
4347 SOUTH HAMPTON ROAD
DALLAS, TEXAS 75232
JOSE A. PEREZ
PRESIDENT, LOCAL 1926
909 SOUTH RUNNELS STREET
BIG SPRING, TEXAS 79720
CAPTAIN DONALD L. SCHWENDIMAN
CAPTAIN DONALD J. ELLIS
78TH FLYING TRAINING WING
OFFICE OF THE STAFF JUDGE ADVOCATE
WEBB AIR FORCE BASE, TEXAS 79720
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED NOVEMBER 28, 1973 AND FILED NOVEMBER 29,
1973. THE COMPLAINT ALLEGED A VIOLATION BY THE RESPONDENT OF SECTIONS
19(A)(1) AND (2) OF THE EXECUTIVE ORDER ON OR ABOUT JUNE 1, 1973. THE
VIOLATION WAS ALLEGED TO CONSIST OF AN AUTHORIZED REPRESENTATIVE OF THE
RESPONDENT ISSUING A DIRECTIVE REDUCING THE WEEKLY HOURS OF CERTAIN
HOURLY-RATED EMPLOYEES (AND HENCE THEIR WEEKLY EARNINGS) WHILE AN
ORGANIZING DRIVE WAS BEING CONDUCTED BY COMPLAINANT AMONG THOSE
EMPLOYEES (THERETOFORE UNREPRESENTED). IT WAS ALLEGED THAT THE
DIRECTIVE WAS ISSUED FOR THE PURPOSE OF DISCREDITING THE COMPLAINANT AND
TO DISCOURAGE MEMBERSHIP IN THE COMPLAINANT BY MAKING IT MORE DIFFICULT
FOR PROSPECTIVE MEMBERS TO PAY DUES.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. PURSUANT TO A NOTICE OF HEARING ISSUED BY
THE ASSISTANT REGIONAL DIRECTOR DATED FEBURARY 27, 1974, AMENDED APRIL
5, 1974, HEARINGS WERE HELD ON MAY 7, 1974 IN BIG SPRING, TEXAS. THE
COMPLAINANT WAS REPRESENTED BY A NATIONAL REPRESENTATIVE AND BY THE
PRESIDENT OF LOCAL 1926. THE RESPONDENT WAS REPRESENTED BY TWO
ATTORNEYS WHO WERE OFFICERS IN THE STAFF JUDGE ADVOCATE OF RESPONDENT.
AT THE CONCLUSION OF THE HEARING THE TIME FOR FILING BRIEFS WAS
EXTENDED TO JUNE 3, 1974. NEITHER PARTY FILED A BRIEF OR REQUESTED A
FURTHER EXTENSION OF TIME.
THE COMPLAINANT IS THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE OF ALL
CIVILIAN NON-SUPERVISORY EMPLOYEES AT WEBB AIR FORCE BASE WHO ARE PAID
FROM APPROPRIATED FUNDS. THERE ARE ABOUT 85 EMPLOYEES PAID FROM
NON-APPROPRIATED FUNDS. THEY DO NOT HAVE A REPRESENTATIVE. ABOUT
FIFTEEN OF THEM ARE MAIDS IN THE BACHELOR ENLISTED QUARTERS, BACHELOR
NON-COMMISSIONED OFFICERS QUARTERS, BACHELOR OFFICERS QUARTERS, AND
VISITORS QUARTERS. AT THE TIME OF THE ALLEGED UNFAIR LABOR PRACTICE
THERE WERE ABOUT THIRTEEN MAIDS.
IN LATE MARCH 1973 THE COMPLAINANT UNDERTOOK AN ORGANIZING CAMPAIGN
AMONG THE NON-APPROPRIATED FUND EMPLOYEES. ON MAY 15 A NOTICE WAS
POSTED ON APPROPRIATE BULLETIN BOARDS OF AN ORGANIZING MEETING TO BE
HELD MAY 22. SOME EMPLOYEES HAD SIGNED AUTHORIZATION CARDS BETWEEN THE
TIME THE ORGANIZING CAMPAIGN BEGAN AND MAY 22, AND SOME SIGNED AT THE
MAY 22 MEETING. THE PRINCIPAL ORGANIZERS, OTHER THAN THE OFFICERS OF
THE LOCAL, WERE THE MAIDS.
THE QUARTERS WHERE THE MAIDS WERE EMPLOYED WERE OPERATED BY A
SEPARATE NON-APPROPRIATED FUND KNOWN AS THE BILLETING FUND. IT HAD
ABOUT SIXTEEN EMPLOYEES, THREE JANITORS AND ABOUT THIRTEEN MAIDS. IT
RECEIVED ITS INCOME FROM BILLETING CHARGES AND A SEPARATE CHARGE FOR
OPTIONAL MAID SERVICE FOR PERMANENT RESIDENTS. BEGINNING WITH OCTOBER
1972 THE BILLETING FUND OPERATED AT A DEFICIT FOR SEVEN CONSECUTIVE
MONTHS. BEGINNING IN FEBRUARY, 1973 THE ACCOUNTING DEPARTMENT OF
RESPONDENT MADE SUGGESTIONS THAT LABOR COSTS BE SOMEHOW REDUCED. LABOR
COSTS WERE ABOUT 85% OF THE FUND'S EXPENSE.
ON MAY 1, 1973 JOHN D. HILL, JR. BECAME THE BILLETING OFFICER AND ON
JUNE 1, 1973 HE BECAME ALSO THE CUSTODIAN OF THE BILLETING FUND. PRIOR
TO COMING TO WEBB AIR FORCE BASE HE HAD BEEN EMPLOYED IN SIMILAR WORK AT
ANOTHER AIR FORCE BASE. UPON ENTERING HIS DUTIES WITH THE RESPONDENT HE
WAS INFORMED OF THE STATUS OF THE BILLETING FUND AND WAS TOLD BY SEVERAL
OFFICERS, INCLUDING THE BASE COMMANDER, TO WORK UP A PLAN TO MAKE THE
BILLETING FUND PROFITABLE.
HILL MADE A DETAILED STUDY AND ON MAY 24, 1973 SUBMITTED A DETAILED
PLAN TO THE BASE COMMANDER. IT INCLUDED THE ELIMINATION OF A CIVILIAN
MAID SUPERVISOR PAID FROM THE BILLETING FUND AND THE SUBSTITUTION OF AN
OFFICER AS SUPERVISOR; THE REDUCTION OF THE MAIDS' WORK WEEK TO NOT
MORE THAN 35 HOURS; THE DISCONTINUANCE OF SOME MAID DUTIES; INCREASES
IN THE CHARGE FOR MAID SERVICE; AND AN INCREASE IN SOME CHARGES TO
TRANSIENTS. THE BASE COMMANDER APPROVED ALL THE RECOMMENDATIONS ON MAY
31, 1973 AND ORDERED THAT ALL NECESSARY STEPS BE TAKEN TO PUT THEM IN
EFFECT AS SOON AS POSSIBLE AND THAT ADEQUATE NOTICE BE GIVEN TO THE
PERSONNEL TO BE AFFECTED.
ON JUNE 1, 1973, THE DAY AFTER THE BASE COMMANDER'S APPROVAL AND
DIRECTION, MR. HILL GAVE INDIVIDUAL NOTICE TO EACH MAID THAT EFFECTIVE
JULY 1, 1974 THEIR WORKING HOURS WOULD BE CHANGED FROM EIGHT HOURS PER
DAY TO SEVEN HOURS PER DAY FIVE DAYS PER WEEK. /1/ IN ADDITION, THE
AFTERNOON FIFTEEN-MINUTE COFFEE BREAK WAS ELIMINATED. SOME OF THE
RECOMMENDATIONS REQUIRED THE APPROVAL OF THE BILLETING FUND COUNCIL
WHICH WAS COMPOSED PRIMARILY OF REPRESENTATIVES OF THE RESIDENTS OF THE
QUARTERS INVOLVED. THEY MET ON JUNE 6 AND APPROVED TEN OF MR. HILL'S
RECOMMENDATIONS THREE OF WHICH AFFECTED THE MAIDS.
AFTER JULY 1, 1973 THE BILLETING FUND OPERATED AT A PROFIT. THREE
PART-TIME ADDITIONAL MAIDS WERE EMPLOYED TO WORK ON WEEKENDS AND SUCH
OTHER DAYS AS THEY MIGHT BE NEEDED. SINCE JULY 1, 1973 THE ONLY MAIDS
ADDED BY THE BILLETING FUND WERE HIRED TO REPLACE MAIDS WHO QUIT AND TO
PERFORM A FUNCTION FORMERLY FINANCED WITH APPROPRIATED FUNDS THAT WAS
TRANSFERRED TO THE BILLETING FUND.
THE REDUCTION IN WEEKLY HOURS OF THE MAIDS AND THE CONSEQUENT
REDUCTION IN WEEKLY EARNINGS HAD A CHILLING EFFECT ON THE CAMPAIGN TO
ORGANIZE THE NON-APPROPRIATED FUND EMPLOYEES. THE MAIDS WERE THE MOST
INTERESTED OF THE NON-APPROPRIATED FUND EMPLOYEES IN THE ORGANIZING
EFFORT. FOR THE MOST PART THEY WERE OF MEAGRE EDUCATION AND ENGLISH WAS
NOT THEIR NATIVE TONGUE. SOME OF THEM CONSTRUED THEIR REDUCTION IN
HOURS AS RETALIATION BY THE RESPONDENT FOR THEIR ORGANIZING EFFORTS
(ALTHOUGH ONLY TWO OR THREE OF THEM WERE ACTIVE), AND SOME FELT THAT
WITH THE REDUCTION IN EARNINGS THEY COULD NOT AFFORD TO PAY UNION DUES.
AT THE TIME MR. HILL WORKED ON AND PREPARED HIS PLAN TO CONVERT THE
BILLETING FUND FROM A DEFICIT OPERATION TO A PROFITABLE OPERATION HE DID
NOT KNOW OF THE ORGANIZING DRIVE OF THE COMPLAINANT. HE TESTIFIED, AND
I CREDIT HIS TESTIMONY, THAT BEFORE HE HELD SUPERVISOR POSITIONS HE
BELONGED TO TWO UNIONS AND BELIEVED IN THE DESIRABILITY OF UNIONS. THE
CHAIRMAN OF THE BILLETING FUND COUNCIL THAT APPROVED THE REDUCTION IN
THE WEEKLY HOURS OF THE MAIDS AND THE REDUCTION IN THEIR DUTIES DID NOT
KNOW OF THE ORGANIZING EFFORTS UNTIL A MONTH AFTER THE COUNCIL'S
ACTIONS.
THERE WAS NO EVIDENCE THAT THE REDUCTION IN HOURS WAS MADE FOR THE
PURPOSE OF DISCREDITING THE COMPLAINANT OR IN FACT DISCREDITED THE
COMPLAINANT; ON THE CONTRARY, AFTER THE REDUCTION THE MAIDS BELIEVED
THAT UNIONIZATION WAS EVEN MORE DESIRABLE THAN BEFORE THE REDUCTION.
BUT AFTER JUNE 1, 1973, THE DAY THE MAIDS RECEIVED NOTICE OF THE
REDUCTION IN HOURS EFFECTIVE A MONTH LATER, ORGANIZING EFFORTS CEASED
BECAUSE THE MAIDS WERE FEARFUL THAT THE REDUCTION WAS IN RETALIATION FOR
THE ORGANIZING EFFORT AND TO MAKE THE PAYMENT OF DUES MORE CUMBERSOME.
AT THE TIME THE HOURLY WAGE OF THE MAIDS, WHICH VARIED WITH LENGTH OF
TENURE, AVERAGED $1.68. IN APRIL 1974 THE MAIDS WERE GIVEN AN INCREASE
OF 26 CENTS PER HOUR RETROACTIVE TO SEPTEMBER 1973. IN MAY 1973 UNION
DUES WERE $3.50 PER MONTH. SHORTLY THEREAFTER THEY WERE RAISED TO $4.00
PER MONTH.
THERE WAS NO EVIDENCE THAT THE HOURS OR EARNINGS OF ANY
NON-APPROPRIATED FUND EMPLOYEES OTHER THAN THE MAIDS WERE REDUCED. ONLY
THE MAIDS AND THE THREE JANITORS WERE UNDER THE JURISDICTION OF MR.
HILL.
A REDUCTION IN HOURS AND CONSEQUENT REDUCTION IN EARNINGS DURING AN
ORGANIZING EFFORT COULD FORESEEABLY HAVE A CHILLING EFFECT ON THE
ORGANIZING EFFORT. THUS, SUCH ACTION, STANDING BY ITSELF, COULD BE
FOUND TO CONSTITUTE INTERFERENCE WITH THE RIGHT CONFERRED ON EMPLOYEES
BY THE FIRST SENTENCE OF SECTION 1 OF EXECUTIVE ORDER 11491 AND THUS A
VIOLATION OF SECTION 19(A)(1). SIMILARLY, WHERE SUCH REDUCTION IS MADE
ONLY IN THE HOURS OF THAT GROUP OF THE EMPLOYEES BEING ORGANIZED AMONG
WHICH WERE THE EMPLOYEES MORE ACTIVE IN THE ORGANIZING EFFORT SUCH FACT,
STANDING BY ITSELF, COULD BE FOUND TO CONSTITUTE A VIOLATION OF SECTION
19(A)(2) BY DISCOURAGING MEMBERSHIP BY DISCRIMINATION IN REGARD TO A
CONDITION OF EMPLOYMENT.
BUT WHEN, AS HERE, THE EVIDENCE IS OVERWHELMING THAT THE ACTION WAS
TAKEN OUT OF ECONOMIC NECESSITY AND THAT THE EMPLOYER OFFICIAL WHO
WORKED OUT THE PLAN DID NOT EVEN KNOW THAT THE ORGANIZING EFFORT WAS
TAKING PLACE, TO FIND A VIOLATION OF THE EXECUTIVE ORDER WOULD BE
UNREALISTIC. CS. NATIONAL LAB. REL. BD. V. GREAT DANE TRAILERS, 388
U.S. 26, 87 S.CT. 1792 (1967).
SO FAR AS THE RECORD SHOWS, IT WAS ONLY THE BILLETING FUND THAT WAS
IN ECONOMIC DIFFICULTY. HILL HAD JURISDICTION ONLY OVER THE
NON-APPROPRIATED FUND EMPLOYEES PAID FROM THE BILLETING FUND. EXCEPT
FOR THE THREE JANITORS, THE MAIDS WERE THE ONLY EMPLOYEES PAID FROM THE
BILLETING FUND. THE SUGGESTIONS THAT ECONOMIES IN SALARIES PAID FROM
THAT FUND BE MADE BEFORE THE ORGANIZING EFFORT WAS COMMENCED. PAYROLL
CONSTITUTED ABOUT 85% OF THE EXPENSES OF THE BILLETING FUND; THERE WAS
NO ROOM FOR SIGNIFICANT ECONOMIES ELSEWHERE.
THE COMPLAINANT ALREADY REPRESENTED THE CIVILIAN NONSUPERVISORY
EMPLOYEES PAID WITH APPROPRIATED FUNDS, AND THERE WAS NO INDICATION THAT
RELATIONS BETWEEN COMPLAINANT AND RESPONDENT WERE ANYTHING BUT
COMPLETELY HARMONIOUS. THERE WAS NO EVIDENCE OF ANTI-UNION ANIMUS.
IMPROPER MOTIVATION HAS NOT BEEN SHOWN. ALTHOUGH THERE WAS ARGUMENT,
AND PERHAPS WHAT COULD BE CONSIDERED EVIDENCE, THAT THE ECONOMIES COULD
HAVE BEEN EFFECTUATED WITHOUT REDUCING WEEKLY HOURS AND EARNINGS, I
CONCLUDE THAT WHEN MR. HILL WAS WORKING OUT THE PLAN, WHICH WAS ADOPTED,
HE SINCERELY BELIEVED IT WAS THE BEST PLAN TO END THE PERSISTENT
OPERATING DEFICITS OF THE BILLETING FUND. EVEN IF WE ASSUME, AS THE
COMPLAINANT ARGUED, THAT HIS JUDGMENT WAS MISTAKEN, THAT WOULD NOT
CONSTITUTE A VIOLATION OF THE EXECUTIVE ORDER SO LONG AS IT WAS SINCERE.
I HAVE NO DOUBT OF ITS SINCERITY.
THE COMPLAINT ALLEGES THAT THE REDUCTION IN HOURS WAS FOR THE PURPOSE
OF DISCREDITING THE COMPLAINANT AND TO DISCOURAGE MEMBERSHIP IN THE
COMPLAINANT. THE EVIDENCE FALLS SHORT OF SUSTAINING THE ALLEGATION BY
THE BURDEN OF PROOF REQUIRED BY SECTION 203.14 OF THE REGULATIONS.
INDEED, THE PREPONDERANCE OF THE EVIDENCE IS DECIDEDLY TO THE CONTRARY.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: AUGUST 6, 1974
WASHINGTON, D.C.
/1/ THE AIR FORCE MANUAL PROVIDES THAT A REGULAR FULL TIME EMPLOYEE
IS ONE WITH NO FORESEEN TERMINATION DATE WITHIN A YEAR AND WITH A
REGULAR TOUR OF DUTY OF AT LEAST 35 HOURS PER WEEK.
4 A/SLMR 438; P. 647; CASE NO. 32-2927(CA); SEPTEMBER 30, 1974.
FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY
A/SLMR NO. 438
THIS MATTER INVOLVED FIVE UNFAIR LABOR PRACTICE COMPLAINTS WHICH WERE
CONSOLIDATED FOR HEARING. THE COMPLAINT IN CAST NO. 32-2927 (CA),
JOINTLY FILED BY LOCAL 1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(NFFE), AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2335,
AFL-CIO, AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R2-43,
ALLEGED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER BASED UPON THE
RESPONDENTS FAILURE TO AFFORD THE COMPLAINANTS THE OPPORTUNITY TO
PARTICIPATE IN THE FORMULATION OF A PLAN FOR THE REDUCTION OF THE
AVERAGE GRADE OF EMPLOYEES.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT, UNDER THE PROVISIONS OF
SECTIONS 11(B) AND 12(B) OF THE ORDER, THE RESPONDENT WAS NOT REQUIRED
TO BARGAIN WITH THE COMPLAINANTS CONCERNING ITS DECISION TO ISSUE THE
PLAN. HOWEVER, UNDER THE PRINCIPLES ENUNCIATED BY THE ASSISTANT
SECRETARY IN UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289, HE FOUND
THAT THE RESPONDENT WAS OBLIGED TO MEET AND CONFER WITH THE COMPLAINANTS
ON THE FORMULATION OF AND PROCEDURES TO BE UTILIZED IN EFFECTUATING THE
PLAN AND ON THE IMPACT OF THE PLAN WITH RESPECT TO ADVERSELY AFFECTED
EMPLOYEES. UNDER THE CIRCUMSTANCES OF THIS CASE, THE ADMINISTRATIVE LAW
JUDGE CONCLUDED THAT THE RESPONDENT FULFILLED ITS OBLIGATION IN THIS
REGARD BY AFFORDING THE COMPLAINANTS AN OPPORTUNITY TO MAKE PROPOSALS
AND RECOMMENDATIONS. HE NOTED, HOWEVER, THAT THE COMPLAINANTS DID NOT
AVAIL THEMSELVES OF THIS OPPORTUNITY. ACCORDINGLY, THE ADMINISTRATIVE
LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE DISMISSED. THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE IN THIS MATTER.
THE COMPLAINT IN CASE NO. 32-33-6 (CA), FILED BY THE NFFE, ALLEGED
VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) OF THE ORDER BASED UPON THE
CONDUCT OF THE RESPONDENT IN HOLDING THREE SEPARATE MEETINGS WITH
EMPLOYEES CONCERNING THE IMPLEMENTATION OF A MANDATORY 48-HOUR WORKWEEK
AND FAILING TO PROVIDE THE NFFE WITH AN OPPORTUNITY TO BE PRESENT AT
SUCH MEETINGS, WHICH WERE CONTENDED TO BE "OFRMAL DISCUSSIONS" WITHIN
THE MEANING OF SECTION 10(E) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE, IN RECOMMENDING DISMISSAL OF THE
COMPLAINT, FOUND IT UNNECESSARY TO DETERMINE WHETHER OR NOT THE THREE
MEETINGS IN QUESTION WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E) BASED ON THE VIEW THAT THE NFFE WAS AFFORDED AN
OPPORTUNITY TO BE PRESENT AT THE MEETINGS AND, IN FACT, WAS PRESENT AT
THE FIRST MEETING IN THE PERSON OF ITS VICE PRESIDENT. THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE IN THIS MATTER.
THE COMPLAINT IN CASE NO. 32-3071 (CA), FILED BY THE NFFE, ALLEGED
VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) OF THE ORDER BASED ON THE
RESPONDENT'S FAILURE TO INFORM AN EMPLOYEE OF HER RIGHT TO UNION
REPRESENTATION OR TO AFFORD HER EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE
PRESENT DURING A DISCUSSION BETWEEN THE EMPLOYEE AND HER SUPERVISOR.
THE RECORD REVEALED THAT THE EMPLOYEE INVOLVED HAD FIVE SEPARATE
MEETINGS WITH VARIOUS SUPERVISORS OF THE RESPONDENT CONCERNING HER
PERFORMANCE EVALUATION. THE FIRST SUCH MEETING WITH HER IMMEDIATE
SUPERVISOR RESULTED IN THE EMPLOYEE MEETING WITH TWO FIRST LEVEL
SUPERVISORS AND A SECOND LEVEL SUPERVISOR ON THE FOLLOWING DAY WHERE THE
SUGGESTION WAS MADE AND ACCEDED TO BY THE EMPLOYEE THAT A PERIOD OF
"CLOSE SUPERVISION" BE PERFORMED BY TWO DIFFERENT SUPERVISORS AND A
TRAINING OFFICER WHO WOULD SUPERVISE THE EMPLOYEE INDIVIDUALLY FOR
EVALUATION PURPOSES. THE SECOND LEVEL SUPERVISOR ACKNOWLEDGED THAT SUCH
A PROCEDURE WAS "UNORTHODOX" OR "UNPRECEDENTED." THEREAFTER,
APPROXIMATELY ONE WEEK LATER, THE EMPLOYEE MET WITH THE FIRST AND SECOND
LEVEL SUPERVISORS AND THE RESPONDENT'S EEO OFFICER WHERE HER EVALUATION
AND THE UNPRECEDENTED EVALUATION PROCEDURE WERE DISCUSSED. THE
FOLLOWING DAY THE EMPLOYEE AND THE FIRST LEVEL SUPERVISOR MET PRIVATELY
AND DISCUSSED THE FORMER'S EVALUATION WHICH RESULTED IN THE SUPERVISOR
ALTERING ONE RATING IN THE EVALUATION. SUBSEQUENTLY, THE EMPLOYEE AGAIN
MET WITH HER FIRST AND SECOND LEVEL SUPERVISORS AND WAS INFORMED THAT
NOTHING ELSE IN THE EVALUATION COULD BE CHANGED AND SHE PROCEEDED TO
FILE A GRIEVANCE.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT CERTAIN OF THE ABOVE
MEETINGS WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E)
OF THE ORDER, AND THAT THE FAILURE OF THE RESPONDENT TO NOTIFY THE NFFE
AND AFFORD IT THE OPPORTUNITY TO BE PRESENT CONSTITUTED A VIOLATION OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER. IN REACHING THIS CONCLUSION,
THE ADMINISTRATIVE LAW JUDGE NOTED, AMONG OTHER THINGS, THAT CERTAIN OF
THE MEETINGS INVOLVED THE INSTITUTION OF A DEPARTURE FROM THE MERE
REVIEW OF AN INDIVIDUAL WORK PERFORMANCE EVALUATION AND ENTERED INTO
MATTERS WHICH HAD POTENTIALLY FAR REACHING EFFECTS WITH WIDER
RAMIFICATIONS THAN THE DISPUTE RELATIVE TO THE EMPLOYEE'S INDIVIDUAL
RATING. THUS, HE NOTED THAT A NEW METHOD OF EVALUATION WAS DEVELOPED
WHICH ADMITTEDLY WOULD HAVE TO BE APPLIED TO OTHER EMPLOYEES IF THEY SO
DESIRED. AS TO ONE OF THE MEETINGS INVOLVED HEREIN, THE ADMINISTRATIVE
LAW JUDGE FOUND THAT IT DID NOT CONSTITUTE A "FORMAL DISCUSSION" WITHIN
THE MEANING OF SECTION 10(E) BECAUSE THE MATTER DISCUSSED WAS RESTRICTED
SOLELY TO THE INDIVIDUAL EMPLOYEE AND HER SUPERVISOR. THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE IN THIS MATTER.
THE COMPLAINT IN CASE NO. 32-3297(CA), FILED BY THE NFFE, ALLEGED
VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) OF THE ORDER BASED UPON THE
RESPONDENT'S CONDUCTING OF A PARTICULAR MEETING CONCERNING THE REPRIMAND
OF AN EMPLOYEE WITHOUT AFFORDING THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE
AN OPPORTUNITY TO BE PRESENT AT SUCH MEETING. IN ADDITION, THE
COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) IN
REFUSING TO ALLOW THE EMPLOYEE INVOLVED IN SUCH MEETING TO HAVE A
PERSONAL REPRESENTATIVE PRESENT.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE MEETING INVOLVED,
BETWEEN A DIVISION CHIEF AND THE EMPLOYEE, WAS A FORMAL DISCUSSION
WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. IN THIS REGARD, HE
NOTED THAT THE MEETING WAS WITH A FOURTH LEVEL SUPERVISOR, THAT SUCH
MEETING WAS AN INTEGRAL AND NECESSARY PART OF TAKING FORMAL DISCIPLINARY
ACTION AGAINST THE EMPLOYEE, AND THAT THE SUBJECT MATTER UNDER
DISCUSSION CONCERNED PERSONAL CONDUCT UNDER WHICH AN EMPLOYEE'S JOB
TENURE COULD BE AFFECTED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
CONCLUDED THAT THE MEETING INVOLVED IN THIS MATTER DID NOT CONSTITUTE A
FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. IN
THIS REGARD, HE NOTED THAT THE SUBJECT MATTER OF THE MEETING RELATED
ONLY TO THE APPLICATION OF THE RESPONDENT'S REGULATIONS TO AN INDIVIDUAL
EMPLOYEE AND THAT NO GRIEVANCE HAD BEEN FILED. ACCORDINGLY, BECAUSE THE
MEETING DID NOT INVOLVE MATTERS COGNIZABLE UNDER SECTION 10(E) OF THE
ORDER, THE ASSISTANT SECRETARY FOUND THAT THE DENIAL OF UNION
REPRESENTATION AT THE MEETING DID NOT CONSTITUTE A VIOLATION OF SECTIONS
19(A)(1) AND (6) OF THE ORDER.
THE COMPLAINT IN CASE NO. 32-3300(CA), FILED BY THE NFFE, ALLEGED
VIOLATIONS OF SECTIONS 19(A)(1), (5) AND (6) BASED UPON THE RESPONDENT'S
CONDUCTING OF A PARTICULAR MEETING CONCERNING THE GRIEVANCE OF AN
EMPLOYEE WITHOUT AFFORDING THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE AN
OPPORTUNITY TO BE PRESENT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE MEETING INVOLVED,
PERTAINING TO A GRIEVANCE FILED BY THE EMPLOYEE, CONSTITUTED A "FORMAL
DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND,
THEREFORE, THE FAILURE OF THE RESPONDENT TO AFFORD THE NFFE AN
OPPORTUNITY TO BE PRESENT AT SUCH MEETING CONSTITUTED A VIOLATION OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER. THE ASSISTANT SECRETARY ADOPTED
THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE.
FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY
AND
LOCAL 1340, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2335, AFL-CIO
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R2-43
FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY
AND
LOCAL 1340, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
ON JUNE 13, 1974, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINTS IN CASE NOS. 32-3071 (CA), AND 32-3300 (CA)
AND HAD NOT ENGAGED IN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS
IN CASE NOS. 32-2927 (CA) AND 32-3306 (CA). WITH REGARD TO THOSE
MATTERS FOUND VIOLATIVE OF THE ORDER IN CASE NOS. 32-3017 (CA), 32-3297
(CA), AND 32-3300 (CA), THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT
THE RESPONDENT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS, AND THAT
ALL OTHER MATTERS ALLEGED IN THE COMPLAINTS IN CASE NOS. 32-3071 (CA),
32-2927 (CA) AND 32-3306 (CA) BE DISMISSED. THEREAFTER, THE RESPONDENT
AND THE COMPLAINANT, LOCAL 1340, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, (NFFE), FILED EXCEPTIONS AND SUPPORTING BRIEFS WITH RESPECT
TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. /1/
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING
THE EXCEPTIONS AND SUPPORTING BRIEFS FILED BY THE RESPONDENT AND THE
NFFE, I HEREBY ADOPT THE ADMINSTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS
/2/ AND RECOMMENDATIONS, EXCEPT AS MODIFIED BELOW.
WITH REGARD TO CASE NO. 32-3297(CA), THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE MEETING OF MAY 9, 1973, INVOLVING EMPLOYEE KRAVITZ AND
MR. QUIG, CHIEF OF THE RESPONDENT'S LOGISTICS DIVISION, CONSTITUTED A
"FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER.
ACCORDINGLY, HE CONCLUDED THAT THE RESPONDENT'S FAILURE TO AFFORD THE
NFFE WITH AN OPPORTUNITY TO BE PRESENT AT THAT MEETING CONSTITUTED A
VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER. I DO NOT AGREE.
THE EVIDENCE ESTABLISHES THAT THE SOLE PURPOSE FOR THE MEETING ON MAY
9, 1973, WAS FOR MR. QUIG TO INFORM EMPLOYEE KRAVITZ OF THE BASIS UPON
WHICH THE RESPONDENT INTENDED TO ISSUE AN OFFICIAL LETTER OF REPRIMAND.
IN THIS CONTEXT, I FIND THAT THE SUBJECT MATTER OF THE MEETING DID NOT
INVOLVE GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER. THUS, NOTING PARTICULARLY THE
ABSENCE OF A PENDING GRIEVANCE, IN MY VIEW THE MEETING OF MAY 9, 1973,
PERTAINED MERELY TO THE APPLICATION OF THE RESPONDENT'S REGULATIONS TO
AN INDIVIDUAL EMPLOYEE AND HAD NOT WIDER RAMIFICATIONS FOR OTHER
EMPLOYEES IN THE UNIT. ACCORDINGLY, AS THIS MEETING DID NOT INVOLVE
MATTERS ENCOMPASSED WITHIN SECTION 10(E) OF THE ORDER, I FIND THAT THE
FAILURE OF THE RESPONDENT TO AFFORD THE NFFE THE OPPORTUNITY TO BE
PRESENT AT SUCH MEETING DID NOT CONSTITUTE A VIOLATION OF SECTIONS
19(A)(1) AND (6) OF THE ORDER. /3/ ACCORDINGLY, I SHALL ORDER THE
COMPLAINT IN CASE NO. 32-3297 (CA) BE DISMISSED IN ITS ENTIRETY.
IN A COMPANION CASE INVOLVING THE SAME EMPLOYEE, CASE NO. 32-3300
(CA), THE ADMINISTRATIVE LAW JUDGE FOUND THAT A MAY 14, 1973, MEETING
ATTENDED BY EMPLOYEE KRAVITZ, HER PERSONAL REPRESENTATIVE PLOFKER, AND
WILLIAMS, THE EXECUTIVE OFFICER OF THE RESPONDENT, WAS A "FORMAL
DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER.
ACCORDINGLY, HE CONCLUDED THAT THE FAILURE OF THE RESPONDENT TO AFFORD
THE NFFE AN OPPORTUNITY TO BE PRESENT AT THIS MEETING CONSTITUTED A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER. I AGREE.
IN REACHING THIS CONCLUSION, NOTED PARTICULARLY WAS THE
ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE PURPOSE OF THE MEETING WAS
TO DISCUSS A WRITTEN GRIEVANCE FILED BY EMPLOYEE KRAVITZ UNDER THE
AGENCY GRIEVANCE PROCEDURE PERTAINING TO HER TREATMENT AT AN EARLIER
MEETING AT THE HANDS OF MR. QUIG, CHIEF OF THE RESPONDENT'S LOGISTICS
DIVISION. SECTION 10(E) OF THE ORDER SPECIFICALLY PROVIDES TH-T AN
EXCLUSIVE REPRESENTATIVE MUST BE GIVEN THE OPPORTUNITY TO BE REPRESENTED
AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES WHICH CONCERN GRIEVANCES. /4/ BECAUSE, IN THE INSTANT
CASE, THE MEETING INVOLVED CONCERNED AN EXISTING GRIEVANCE FILED BY
KRAVITZ, I FIND, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT
THE SUBJECT OF SUCH MEETING INVOLVED MATTERS COGNIZABLE UNDER SECTION
10(E) OF THE ORDER. /5/ ACCORDINGLY, AS THE MEETING OF MAY 14
CONSTITUTED A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E),
IT FOLLOWS THAT THE FAILURE OF THE RESPONDENT TO AFFORD THE NFFE AN
OPPORTUNITY TO BE REPRESENTED THEREIN CONSTITUTED A VIOLATION OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE FEDERAL AVIATION
ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE
REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT WITHOUT
GIVING LOCAL 1340,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE
OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY ITS OWN CHOSEN
REPRESENTATIVES.
(B) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY
FAILING TO PROVIDE LOCAL
1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) NOTIFY LOCAL 1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES OF,
AND GIVE IT THE
OPPORTUNITY TO BE REPRESENTED AT, FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT.
(B) UPON REQUEST OF LOCAL 1340, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, RESCIND EXECUTIVE
OFFICER HAROLD WILLIAMS' REPORT OF MAY 18, 1973, PERTAINING TO A
GRIEVANCE FILED BY EMPLOYEE
DOROTHY L. KRAVITZ.
(C) POST AT ITS FACILITY AT FEDERAL AVIATION ADMINISTRATION, NATIONAL
AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, COPIES OF THE
ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR, FEDERAL AVIATION
ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY,
AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING WITHIN 20 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINTS IN CASE NOS. 32-2927 (CA),
32-3297 (CA), AND 32-3306 (CA) BE, AND THEY HEREBY ARE, DISMISSED IN
THEIR ENTIRETY AND THAT THE COMPLAINTS IN CASE NOS. 32-3071 (CA) AND
32-3300 (CA) INSOFAR AS THEY ALLEGE INDEPENDENT VIOLATION OF SECTION
19(A)(1) OF THE ORDER OR VIOLATION OF SECTION 19(A)(5) OF THE ORDER, BE,
AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ THE NFFE FILED TIMELY EXCEPTIONS AND A SUPPORTING BRIEF WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS IN
CASE NO. 32-2927 (CA). THE RESPONDENT FILED TIMELY EXCEPTIONS AND A
SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT
AND RECOMMENDATIONS IN CASE NOS. 32-3071 (CA), 32-3297 (CA) AND 32-3300
(CA). NO OTHER EXCEPTIONS WERE FILED.
/2/ IN ADOPTING THE FINDINGS AND CONCLUSIONS OF THE ADMINISTRATIVE
LAW JUDGE IN CASE NO. 32-2927 (CA), IT WAS NOTED THAT, AS DISTINGUISHED
FROM THE CIRCUMSTANCES INVOLVED IN NATIONAL LABOR RELATIONS BOARD,
A/SLMR NO. 246, THE COMPLAINANTS IN THIS MATTER AT NO TIME SPECIFICALLY
INDICATED TO THE RESPONDENT THAT THERE WAS INSUFFICIENT TIME TO REVIEW
THE DRAFT AVERAGE GRADE CONTROL PLAN AND TO FORMULATE MEANINGFUL
COMMENTS, OR REQUESTED ADDITIONAL TIME IN WHICH TO DO SO. MOREOVER, AS
FOUND BY THE ADMINISTRATIVE LAW JUDGE, AT NO TIME SUBSEQUENT TO THE JULY
26, 1972, MEETING WITH THE RESPONDENT DID ANY OF THE COMPLAINANTS SEEK
TO MEET AND DISCUSS THE MATTER FURTHER NOR DID THEY OFFER ANY
SUGGESTIONS OR COMMENTS RELATIVE TO THE PLAN.
/3/ SEE DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, A/SLMR NO. 336 AND INTERNAL REVENUE SERVICE MID-ATLANTIC
SERVICE CENTER, A/SLMR NO. 421.
/4/ THUS, SECTION 10(E) OF THE ORDER PROVIDES, IN PERTINENT PART:
"THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT."
/5/ CF. UNITED STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE
STATION, LOUISVILLE, KENTUCKY, A/SLMR NO. 400
WE WILL NOT CONDUCT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS CONCERNING EMPLOYEES IN THE UNIT WITHOUT GIVING LOCAL 1340,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY
ITS OWN CHOSEN REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF LOCAL 1340, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, RESCIND EXECUTIVE OFFICER HAROLD WILLIAMS' REPORT OF MAY 18,
1973, PERTAINING TO A GRIEVANCE FILED BY EMPLOYEE DOROTHY L. KRAVITZ.
DATED . . . BY . . .
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 3515, 1515 BROADWAY, NEW YORK, NEW YORK
10036.
IN THE MATTER OF
FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY
AND
LOCAL 1340, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES,
LOCAL 2335, AFL-CIO
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES,
LOCAL R-2-43
FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY
AND
LOCAL 1340, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
JANE GOLDEN, ESQ.
& E. L. JACK EMBREY
800 INDEPENDENCE AVENUE, S.W.
WASHINGTON, D.C. 20591
MICHAEL FORCEY, ESQ., ON BEHALF OF COMPLAINANT
LOCAL 1340,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
JOSEPH GIRLANDO, ON BEHALF OF COMPLAINANT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2335, AFL-CIO
300 MAIN STREET
ORANGE, NEW JERSEY 07050
MR. PAUL RILEY, ON BEHALF OF COMPLAINANT
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R-2-43
102 SOUTH RICHARDS AVENUE
VENTNOR, NEW JERSEY 08406
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THESE CASES, HEARD IN ATLANTIC CITY, NEW JERSEY, ON OCTOBER 2 AND 3,
1973, ARISE UNDER EXECUTIVE ORDER 11491 AS AMENDED, (HEREAFTER CALLED
THE ORDER). PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS (HEREAFTER CALLED THE ASSISTANT SECRETARY),
AN AMENDED NOTICE OF HEARING AND ORDER CONSOLIDATING CASE ISSUED ON
SEPTEMBER 17, 1973, WITH REFERENCE TO ALLEGED VIOLATIONS OF VARIOUS
SECTIONS OF THE ORDER AS SET FORTH IN THE ABOVE CAPTIONED COMPLAINTS
FILED AGAINST THE FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES EXPERIMENTAL CENTER (NAFEC), ATLANTIC CITY, NEW JERSEY
(HEREAFTER CALLED THE ACTIVITY OR RESPONDENT).
AT THE HEARING ALL PARTIES WERE REPRESENTED AND WERE AFFORDED FULL
OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND CROSS EXAMINE
WITNESSES, AND ARGUE ORALLY. /1/ BRIEFS WERE FILED BY RESPONDENT AND
COMPLAINANT LOCAL 1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY READING OF THE BRIEFS
AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, FINDINGS OF FACT
AND CONCLUSIONS OF LAW ARE MADE AS FOLLOWS:
I. CASE NO. 32-2927(CA)
ON SEPTEMBER 8, 1972, A COMPLAINT WAS FILED AGAINST THE ACTIVITY BY
LOCAL 1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, (NFFE) AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2335, AFL-CIO, (AFGE)
AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R-2-43, (NAGE),
SAID LABOR ORGANIZATIONS HEREAFTER SOMETIMES JOINTLY REFERRED TO AS THE
UNIONS OR COMPLAINANTS. THE UNIONS CONTEND THAT THE ACTIVITY VIOLATED
SECTION 19(A)(6) OF THE ORDER BY IGNORING ITS OBLIGATION TO AFFORD THEM
AN OPPORTUNITY TO PARTICIPATE IN THE FORMULATION AND IMPLEMENTATION OF A
NEW ACTIVITY PLAN DESIGNED TO REDUCE AND CONTROL THE AVERAGE GRADE OF
EMPLOYEES AT THE ATLANTIC CITY FACILITY. THE UNIONS ALLEGE THAT THE
PLAN CONSTITUTED A PERSONNEL POLICY AND PRACTICE AFFECTING EMPLOYEES
CONDITIONS OF EMPLOYMENT AND THE ACTIVITY REFUSED TO CONSULT IN A
MEANINGFUL MANNER IN GOOD FAITH WITH REGARD THERETO.
RESPONDENT CONTENDS THAT UNDER THE ORDER IT WAS NOT OBLIGATED TO
CONFER WITH THE UNIONS WITH REGARD TO THE AVERAGE GRADE CONTROL PLAN.
RESPONDENT RELIES ON THE LANGUAGE OF SECTION 11(B) AND SECTION 12(B) OF
THE ORDER, WHICH SECTIONS LIMIT THE ACTIVITY'S OBLIGATION TO "MEET AND
CONFER" ON SPECIFIC MATTERS SOMETIMES REFERRED TO AS "MANAGEMENT
RIGHTS." RESPONDENT FURTHER CONTENDS THAT IN ANY EVENT IT FULFILLED ANY
OBLIGATION IT MIGHT HAVE HAD TO CONSULT WITH THE UNION ON THE MATTER.
THE ACTIVITY EMPLOYS APPROXIMATELY 1400 FULL-TIME EMPLOYEES. EACH OF
THE COMPLAINANTS HEREIN REPRESENTS ONE OR MORE COLLECTIVE BARGAINING
UNITS OF EMPLOYEES AT THE ACTIVITY. NFFE REPRESENTS APPROXIMATELY
600-700 EMPLOYEES; AFGE REPRESENTS APPROXIMATELY 370 EMPLOYEES; AND
NAGE REPRESENTS APPROXIMATELY 33 EMPLOYEES.
ON THURSDAY JULY 20, 1972, THE ACTIVITY RECEIVED A LETTER /2/ FROM
THE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
NOTIFYING IT THAT AN AGENCY-WIDE FREEZE IN PROMOTIONS WHICH HAD BEEN IN
EFFECT SINCE FEBRUARY 18, 1972, WAS CANCELLED. THE LETTER SET THE
ACTIVITY'S AVERAGE GRADE GOAL TO BE ACHIEVED BY JUNE 30, 1973, AT
9.3255. THE ACTIVITY'S AVERAGE GRADE AS OF JUNE 30, 1972, WAS 9.6198.
THE ACTIVITY WAS RESPONSIBLE FOR CONTROLLING ITS AVERAGE GRADE AND WAS
GIVEN " . . . THE FLEXIBILITY NEEDED TO MAKE THE DECISIONS REQUIRED IN
MANAGING THEIR PROGRAMS AND ORGANIZING THEIR WORK FORCE." IN ADDITION,
THE LETTER FROM THE FEDERAL AVIATION ADMINISTRATION ALSO PROVIDED INTER
ALIA:
"IN ARRIVING AT YOUR INDIVIDUAL ACTION PLANS TO MEET YOUR AVERAGE
GRADE GOALS, THE
FOLLOWING SPECIFIC MEASURES FOR REDUCING YOUR AVERAGE GRADE SHOULD BE
APPLIED.
1. BACKFILL VACANCIES AT GRADE LEVELS BELOW THOSE OF THE PREVIOUS
OCCUPANTS.
2. HIRE AT ENTRY LEVELS.
3. USE TECHNICIANS WHERE PROFESSIONALS ARE NOT BEING UTILIZED AT
THEIR FULL SKILL LEVELS.
4. ELIMINATE "LAYERING," UNNEEDED DEPUTY OR ASSISTANT POSITIONS, AND
PROJECTED SUPERVISORY
POSITIONS THAT DO NOT HAVE SUFFICIENT SUBORDINATES.
5. REVIEW LOCAL ORGANIZATIONAL STRUCTURE OF EACH UNIT TO DETERMINE
IF EXISTING STAFFING
PATTERNS ARE STILL APPROPRIATE IN VIEW OF PROGRAM CHANGES. ALTHOUGH
WE ARE NOT PLANNING ON
ANY NATIONWIDE REORGANIZATION AT THIS TIME, THERE IS SOME LEEWAY FOR
LOCAL RESTRUCTURING OF
THE SUBORDINATE ORGANIZATIONS WITHIN THE FRAMEWORK OF THE STANDARD
ORGANIZATIONS."
UPON RECEIPT OF THE LETTER, HAROLD WILLIAMS, THE ACTIVITY'S EXECUTIVE
OFFICER, DISCUSSED THE MATTER WITH "WASHINGTON" AND WITH THE ACTIVITY'S
DIRECTOR. IT WAS WILLIAMS' CONCLUSION THAT, BASED UPON THE LETTER FROM
THE FEDERAL AVIATION ADMINISTRATION, PROMOTIONS COULD NOT PROCEED
WITHOUT A PROMOTION "PLAN." ACCORDINGLY, AFTER RECEIVING INFORMATION
COLLECTED BY HIS STAFF, WILLIAMS, ON JULY 25, 1973, DRAFTED THE "NAFEC
POSITION MANAGEMENT AND AVERAGE GRADE CONTROL PLAN OF ACTION, JULY
1972." /3/ THE PLAN WAS DIVIDED INTO VARIOUS SECTIONS ENTITLED;
PROBLEMS; OBJECTIVES; ACTION; REVIEW PROCEDURES; RESPONSIBILITIES;
AND REPORTS.
THE "ACTION" PORTION OF THE PLAN PROVIDES:
"INITIAL ACTION WILL CONSIST OF A REVIEW OF ALL CURRENT VACANCIES TO
ASCERTAIN (A) IF THEY
MUST BE FILLED, AND (B) CONSIDERING ESSENTIAL MISSION REQUIREMENTS,
DETERMINE THE LOWEST
POSSIBLE GRADE FOR THOSE WHICH MUST BE FILLED.
SUBSEQUENT ACTIONS WILL CONSIST OF:
A. A CAREFUL REVIEW OF EACH POSITION WHICH BECOMES VACANT DURING THE
REMAINDER OF THE
FISCAL YEAR FOR THE SAME REASONS AS THE INITIAL REVIEW.
B. A SYSTEMATIC REVIEW OF THE ORGANIZATIONAL STRUCTURE ON A
CONTINUING BASIS THROUGHOUT
THE FISCAL YEAR. THE PURPOSE OF THIS REVIEW SHALL BE TO ELIMINATE
HIGH LEVEL POSITIONS
THROUGH CONSOLIDATION AND/OR ELIMINATION OF FUNCTIONS AND STAFFING.
POSITIONS MAY BE FILLED AT SUPERVISORY OR JOURNEYMAN LEVELS ONLY
AFTER THE DIVISION/STAFF
CHIEF INVOLVED HAS ASCERTAINED AND DOCUMENTED THAT SUCH ACTION IS
ESSENTIAL TO HIS
MISSION. THIS DOCUMENTATION WILL ACCOMPANY THE REQUEST FOR PERSONNEL
ACTION (FORM 52) AND
WILL BE SUBJECT TO REVIEW BY THE POSITION MANAGEMENT COMMITTEE AND
APPROVAL BY THE DIRECTOR."
THE "REVIEW PROCEDURES" SECTION OF THE PLAN STATES:
"A. ORGANIZATION. EACH ORGANIZATIONAL ELEMENT WILL BE CAREFULLY
EVALUATED TO DETERMINE IF IT COULD BE ELIMINATED OR COMBINED WITH
ANOTHER ELEMENT. IN ADDITION, THE STAFFING LEVELS WILL BE ANALYZED TO
DETERMINE IF LOWER LEVEL POSITIONS CAN BE SUBSTITUTED FOR HIGH LEVEL
JOBS. ADJUSTMENTS BY RIF ARE NOT CONTEMPLATED; HOWEVER, CONCERTED
EFFORTS TO EFFECT REASSIGNMENTS WILL BE MADE WHEN IMBALANCES ARE
IDENTIFIED.
B. VACANCIES. EACH VACANCY WILL BE REVIEWED INDIVIDUALLY IN
ACCORDANCE WITH THE FOLLOWING CRITERIA:
1. IS THE VACANCY ESSENTIAL OR COULD IT BE ELIMINATED OR
REALLOCATED.
2. COULD THE NATURE OF PERFORMANCE BE ALTERED TO A LOWER GRADE-RANGE
OCCUPATIONAL
CATEGORY, E.G., PROFESSIONAL TO SUBPROFESSIONAL OR TECHNICIAN,
SPECIALIST TO CLERICAL,
STENOGRAPHER TO TYPIST, ETC.
3. CAN SUPERVISORY DUTIES BE ELIMINATED BY REASSIGNING THEM UPWARD,
DOWNWARD OR LATERALLY.
4. CAN DUTIES BE REDISTRIBUTED AMONG POSITIONS REASSIGNING THE
HIGHER GRADE-DETERMINING
DUTIES SO THAT GRADE LEVELS CAN BE LOWERED.
5. CAN GRADE LEVELS BE LOWERED THROUGH ASSESSMENT OF WORKLOADS, SPAN
OF CONTROL OR PROGRAM
REQUIREMENTS.
6. CAN INTERNAL PROCESSES AND PROCEDURES BE SIMPLIFIED OR
STREAMLINED TO REDUCE THE NEED
FOR HIGH GRADE DUTIES.
C. RECLASSIFICATIONS. RECLASSIFICATION ACTIONS WILL BE REQUESTED
ONLY WHEN THE HIGHER LEVEL DUTIES ARE ESSENTIAL AND AT LEAST ONE OF THE
FOLLOWING CONDITIONS PREVAIL:
1. THE HIGHER LEVEL DUTIES CANNOT BE REDISTRIBUTED.
2. THE EMPLOYEE IS IN A DEVELOPMENTAL STATUS AND HAS CLEARLY
DEMONSTRATED PROMISING
POTENTIAL.
3. WHERE RECLASSIFICATION IS THE RESULT OF CHANGES IN CLASSIFICATION
STANDARDS AND GUIDES,
TO CORRECT CLASSIFICATION ERRORS OR WHEN DIRECTED BY CSC OR HIGHER
ADMINISTRATIVE AUTHORITY."
UNDER "RESPONSIBILITIES" THE PLAN PROVIDES THAT "(T)HE MANPOWER
OFFICE WILL NOT PROCESS PERSONNEL ACTIONS WHICH HAVE NOT BEEN REVIEWED
ACCORDING TO THIS PLAN OR WITH INDIVIDUAL SERVICE PLANS IN THE CASE OF
NAFEC TENANTS."
AT 8:15 A.M., ON JULY 26, 1972, WILLIAMS PRESENTED THE PLAN TO
VARIOUS OF THE ACTIVITY'S MANAGEMENT OFFICIALS FOR CONSIDERATION AND
COMMENT. AT 10:30 A.M., THAT SAME MORNING, REPRESENTATIVES OF THE
ACTIVITY MET WITH REPRESENTATIVES OF EACH OF THE THREE UNIONS INVOLVED.
THE UNIONS HAD BEEN NOTIFIED OF THE TIME AND SUBJECT MATTER OF THE
MEETING EARLIER THAT MORNING. AT THE MEETING WITH THE UNIONS, COPIES OF
THE PLAN WERE PROVIDED TO THE UNIONS' REPRESENTATIVES. THE ACTIVITY
REPRESENTATIVES INFORMED THE UNIONS THAT THE FREEZE ON PROMOTIONS HAD
BEEN RECINDED AND THE PLAN WAS AN ATTEMPT TO PERMIT PROMOTIONS AND AT
THE SAME TIME DECREASE THE AVERAGE GRADE AT THE FACILITY. THE PLAN WAS
PRESENTED AS A "DRAFT" AND THE UNIONS' REPRESENTATIVES WERE GIVEN A
BRIEF ORAL RESUME OF THE PLAN AND ASKED TO SUBMIT ANY COMMENTS ON THE
PLAN BY 4:00 P.M., THAT SAME DAY. THE UNIONS ASKED VARIOUS QUESTIONS
AND THERE WAS SOME DISCUSSION AS TO HOW THE ACTIVITY COULD PROMOTE
EMPLOYEES AND STILL DECREASE THE AVERAGE GRADE. THE ACTIVITY ASSURED
THE UNIONS' REPRESENTATIVES THAT NO ONE WOULD BE DOWNGRADED AS A RESULT
OF THE PLAN. THE ACTIVITY REPRESENTATIVES WERE ASKED WHY SUCH A SHORT
PERIOD FOR COMMENT WAS PROVIDED AND THEY REPLIED THAT COMMENTS HAD TO BE
RECEIVED BY THE END OF THE DAY SO THAT THE PLAN COULD ISSUE AND
PROMOTIONS COULD BEGIN AGAIN AS QUICKLY AS POSSIBLE. THE UNION'S
REPRESENTATIVES VOICED SOME DISSATISFACTION WITH THE TIME LIMIT FOR
COMMENT, ONE UNION REPRESENTATIVE MAKING THE STATEMENT THAT "THIS WAS A
VERY SHORT TIME TO STUDY A DOCUMENT OF THIS KIND," SINCE IT COULD
POSSIBLY HAVE FAR REACHING EFFECTS. THE MEETING ADJOURNED AFTER
APPROXIMATELY ONE-HALF HOUR AND NO FURTHER COMMENT ON THE PROPOSED PLAN
WAS MADE BY THE UNIONS AT ANY TIME THEREAFTER.
HAVING RECEIVED NO COMMENTS ON THE PLAN FROM ANY ONE FROM MANAGEMENT
OR THE UNIONS, ON JULY 27, 1972, EXECUTIVE OFFICER WILLIAMS HAD THE
DRAFT PLAN TYPED IN FINAL AND SIGNED BY THE FACILITY DIRECTOR. ON JULY
28 THE PLAN WAS IMPLEMENTED BY DISSEMINATION TO VARIOUS MANAGEMENT
OFFICIALS WHO WERE RESPONSIBLE FOR TAKING SPECIFIC ACTIONS UNDER THE
PLAN. PROMOTIONS WERE THEREBY UNFROZEN AND APPROXIMATELY 80 EMPLOYEES
RECEIVED PROMOTIONS EFFECTIVE AUGUST 6, 1972.
APPARENTLY, ON OR ABOUT AUGUST 3, 1972, THE UNIONS FILED UNFAIR LABOR
PRACTICE CHARGES AGAINST RESPONDENT RELATIVE TO THE ISSUANCE OF THE
AVERAGE GRADE PLAN. BY LETTER DATED AUGUST 22, 1972, THE ACTIVITY
RESPONDED TO THE UNIONS STATING, INTER ALIA:
"WE READILY ACKNOWLEDGE THAT THE TIME WHICH YOU WERE GIVEN TO RESPOND
TO THIS PROPOSED PLAN
WAS EXCEPTIONALLY SHORT. WE SUBMIT, HOWEVER, THAT THERE WERE, IN
THIS INSTANCE, OVERRIDING
CONSIDERATIONS WHICH, AT LEAST IN OUR JUDGMENT, JUSTIFIED THIS SHORT
SUSPENSE. AS YOU KNOW,
WE HAVE HAD A FREEZE ON UPGRADING POSITIONS SINCE AUGUST 1971. IN
ADDITION, THERE HAD BEEN A
TOTAL FREEZE ON PROMOTIONS SINCE FEBRUARY 1972. IT WAS NECESSARY
THAT WE DEVELOP AND
IMPLEMENT A PLAN FOR AVERAGE GRADE CONTROL SO THAT WE COULD PROCEED
WITH DESERVING
PROMOTIONS. THIS WAS THE ONLY REASON FOR THE SHORT SUSPENSE.
IT IS TRUE THAT THE DRAFT WAS ISSUED, AS THE PLAN, WITHOUT CHANGE.
HOWEVER, IT WAS NOT
INTENDED TO BE SO. THIS DRAFT WAS INTENDED ONLY AS A STARTING POINT
AND WE FULLY INTENDED TO
INCLUDE SUGGESTIONS BY NAFEC LABOR ORGANIZATIONS AND NAFEC MANAGEMENT
WHERE POSSIBLE. IT WAS
DRAFTED DURING THE AFTERNOON OF 25 JULY 1972 AND WAS INTENDED TO
SERVE AS A WORKING PAPER
ONLY. A SECRETARY WORKED LATE ON 25 JULY TO REPRODUCE THE DRAFT SO
IT WOULD BE AVAILABLE THE
FIRST THING WEDNESDAY MORNING. IT WAS PASSED OUT AT THE DIRECTOR'S
STAFF MEETING WEDNESDAY
MORNING AND ALL DIVISION AND STAFF OFFICE CHIEFS WERE REQUESTED TO
REVIEW IT AND PROVIDE
SUGGESTIONS FOR CHANGES AND/OR ADDITIONS. THEY WERE GIVEN UNTIL 4:00
P.M. THE SAME DAY (26
JULY 1972) TO PROVIDE THESE SUGGESTED CHANGES. IN OTHER WORDS,
MANAGEMENT HAD ESSENTIALLY THE
SAME AMOUNT OF TIME AS THAT AFFORDED LABOR ORGANIZATIONS.
YOUR CONVICTION THAT WE DID NOT INTEND TO CONSIDER YOUR SUGGESTIONS
IS IN ERROR. WE DID
WANT YOUR SUGGESTIONS AND STILL DO FOR THAT MATTER. WE WOULD BE
PLEASED TO CONSIDER ANY
SUGGESTION YOU WILL PRESENT AND ASSURE YOU THAT ANYTHING YOU SUGGEST
THAT WILL LESSEN THE
IMPACT ON EMPLOYEES AND CONTRIBUTE TO THE REDUCTION GOAL WILL BE
GIVEN MOST SERIOUS
CONSIDERATION. WE WILL REVISE THE PLAN AT ANY TIME TO ACHIEVE THIS
RESULT. FURTHERMORE, WE
ARE READY AND WILLING TO MEET WITH YOU AT A MUTUALLY CONVENIENT TIME
AND PLACE TO DISCUSS ANY
SUGGESTIONS YOU MIGHT HAVE. . . .
. . . IN SUMMARY, PLEASE BE ASSURED THAT PARTICIPATION BY YOU IN
FORMULATION OF
IMPLEMENTING PROCEDURES TO ACHIEVE THE AVERAGE GRADE REDUCTION GOALS
WOULD BE MOST WELCOME AND
ANY SUGGESTIONS YOU HAVE WILL RECEIVE VERY SERIOUS CONSIDERATION.
THE MISUNDERSTANDING
ENGENDERED BY OUR EAGERNESS TO GET PROMOTIONS STARTED AGAIN IS
GENUINELY REGRETTED."
AT NO TIME THEREAFTER DID THE UNIONS SEEK TO MEET OR DISCUSS THE
MATTER FURTHER NOR DID THEY OFFER ANY SUGGESTIONS OR COMMENTS RELATIVE
TO THE PLAN IN ANY MANNER WHATSOEVER. THE ACTIVITY NEVER REACHED ITS
AVERAGE GRADE GOAL AND IN JULY 1973, THE PLAN WAS SUSPENDED.
I FIND THAT THE AVERAGE GRADE CONTROL PLAN CONSTITUTED A PERSONNEL
POLICY AND MATTER AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF
SECTION 11(A) OF THE ORDER. THUS, THE ACTIVITY ACKNOWLEDGES THAT UNDER
THE PLAN IT HAS ELIMINATED SOME TECHNICAL, SUPERVISORY AND
ADMINISTRATIVE POSITIONS AND ELIMINATED AND REDISTRIBUTED SOME DUTIES OF
SOME OF ITS EMPLOYEES. HOWEVER, I FURTHER FIND THAT UNDER SECTION 11(B)
AND 12(B) OF THE ORDER THE ACTIVITY'S DECISION TO ISSUE THE PLAN WAS NOT
A MATTER ABOUT WHICH IT WAS OBLIGED TO MEET AND CONFER WITH THE UNIONS.
NEVERTHELESS, THE ACTIVITY WAS OBLIGED TO MEET AND CONFER WITH THE
UNIONS WITH REGARD TO THE FORMULATION OF THE FINAL PLAN AND
IMPLEMENTATION THEREOF. IN UNITED STATES DEPARTMENT OF NAVY, BUREAU OF
MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO.
289, THE ASSISTANT SECRETARY HELD IN A CASE INVOLVING A RIF ACTION THAT
"THE FORMULATION OF THE FINAL PLAN OF CARRYING OUT THE RIF SHOULD BE
DONE WITH THE BENEFIT OF CONSULTATION. . ." IN ADDITION THE ASSISTANT
SECRETARY HAS HELD ON NUMEROUS OCCASIONS /4/ IN SIMILAR CIRCUMSTANCES
THAT NOTWITHSTANDING THE FACT THAT A PARTICULAR MANAGEMENT DECISION IS
NON NEGOTIABLE, AGENCY OR ACTIVITY MANAGEMENT IS REQUIRED UNDER THE
ORDER TO MEET AND CONFER ON PROCEDURES MANAGEMENT INTENDS TO USE IN
IMPLEMENTING THE DECISION INVOLVED AND ON THE IMPACT OF SUCH DECISION ON
ADVERSELY AFFECTED EMPLOYEES. ACCORDINGLY, I FIND THAT RESPONDENT
HEREIN WAS OBLIGED TO AFFORD COMPLAINANTS A REASONABLE OPPORTUNITY TO
MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE
FORMULATION OF AND PROCEDURES TO BE UTILIZED IN EFFECTUATING THE NEW
AVERAGE GRADE CONTROL PLAN AND ON THE IMPACT, IF ANY, SUCH NEW PLAN MAY
HAVE ON ADVERSELY AFFECTED EMPLOYEES.
RESPONDENT'S CONTENTION THAT IT WAS NOT OBLIGATED TO MEET AND CONFER
WITH THE UNION SINCE RESPONDENT DID NOT CONTEMPLATE SEPARATION,
DOWN-GRADING OR REALIGNMENT OF EMPLOYEES, IS WITHOUT MERIT. UNDER THE
PLAN RESPONDENT HAS A WIDE LATITUDE TO MAKE WHATEVER DECISIONS ARE
REQUIRED TO CONTROL AVERAGE GRADES INCLUDING ELIMINATION AND
REDISTRIBUTION OF DUTIES, REORGANIZATION OF THE WORK FORCE AND
REFRAINING FROM FILLING VACANCIES AT HIGHER LEVEL POSITIONS.
ACCORDINGLY, THE POTENTIAL AFFECT UPON THE WORK FORCE COULD HAVE BEEN
SUBSTANTIAL AND WIDE-SPREAD AND RESPONDENT ACKNOWLEDGES THAT THE PLAN
COULD HAVE AFFECTED INCUMBENT'S HAD THEY ELECTED TO DO SO. THE PLAN WAS
THE PREDICATE FOR A NEW APPROACH TO PROMOTIONS. FURTHER, RESPONDENT
ADMITS THAT UNDER THE PLAN SOME EMPLOYEES' DUTIES HAVE BEEN
REDISTRIBUTED AND SOME POSITIONS ELIMINATED.
HOWEVER, IN THE CIRCUMSTANCES OF THIS CASE I FIND THAT THE ACTIVITY
FULFILLED ITS OBLIGATION TO MEET AND CONFER ON THE MATTER. THUS, ON
JULY 26, 1972, THE ACTIVITY MET WITH THE UNIONS AND PRESENTED A "DRAFT"
PLAN AND REQUESTED THEIR COMMENTS. THE PLAN WAS INTRODUCED NOT AS A
FINAL DOCUMENT BUT RATHER AS A "DRAFT" AND AS SUCH COULD HAVE BEEN
MODIFIED PRIOR TO ITS PROMULGATION IF APPROPRIATE COMMENTS OR
SUGGESTIONS WERE RECEIVED. THE UNIONS HAD THE OPPORTUNITY AT THIS
MEETING AND AT ANY TIME PRIOR TO THE PROMULGATION OF THE PLAN ON JULY
28, 1972, TO MAKE SUGGESTIONS OR PROPOSALS WITH REGARD TO MODIFYING THE
PLAN. THIS IT FAILED TO DO AND THERE IS NO EVIDENCE THAT RESPONDENT
EXHIBITED A "CLOSED MIND" ON THE SUBJECT SO THAT THE UNIONS COULD HAVE
REASONABLY BELIEVED THAT THEIR SUGGESTIONS WOULD HAVE BEEN FUTILE. /5/
MOREOVER THE UNIONS, DURING THE MEETING OF JULY 26 AND THEREAFTER COULD
HAVE VOICED ITS OPPOSITION WITH REGARD TO THE AMOUNT OF TIME THE
ACTIVITY SET FOR COMMENTS IN SUCH A MANNER SO AS TO CLEARLY CONVEY THEIR
DESIRE TO FORESTALL IMPLEMENTATION OF THE PLAN SO THAT THE UNIONS MIGHT
HAVE ADDITIONAL TIME TO REVIEW AND ENGAGE IN FURTHER CONSULTATION ON THE
PLANS. NO SUCH REQUEST WAS MADE. /6/ NOR DO I INTERPRET THE UNIONS
EXPRESSION OF DISSATISFACTION WITH THE SHORT DURATION OF TIME ALLOWED
FOR COMMENTS AT THE JULY 26 MEETING TO CONSTITUTE AN OBJECTION BY THE
UNIONS. ALTHOUGH THE PERIOD OF TIME BETWEEN NOTIFICATION AND
IMPLEMENTATION OF THE PLAN WAS SHORT, THE UNIONS WERE MADE AWARE, IF
THEY WERE NOT ALREADY AWARE, OF THE DESIRABILITY OF PROMPTLY PROMOTING
DESERVING EMPLOYEES. IN SUCH CIRCUMSTANCES THE ACTIVITY COULD
REASONABLY CONCLUDE THAT WHILE THE UNIONS WOULD HAVE PREFERRED MORE TIME
TO REVIEW THE PLAN, THEY HAD NO OBJECTIONS TO IT AND THE ACTIVITY COULD
THEREUPON PROCEED ACCORDINGLY. THEREFORE I FIND THAT THE UNIONS, AFTER
HAVING RECEIVED PRIOR NOTIFICATION OF THE ACTIVITY'S PLAN AND INTENTIONS
RELATING THERETO, HAVE, BY THEIR SILENCE AND INACTION, WAIVED ANY RIGHT
TO CLAIM A FAILURE TO CONSULT AFTER THE PLAN WAS IMPLEMENTED. /7/
IN VIEW OF THE ENTIRE FOREGOING I RECOMMEND THAT THE COMPLAINT HEREIN
BE DISMISSED.
II. CASE NO. 32-3306 (CA)
THE COMPLAINT HEREIN, FILED ON AUGUST 3, 1973, BY LOCAL 1340,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, (HEREINAFTER REFERRED TO AS
THE UNION OR COMPLAINANT) ALLEGES THAT RESPONDENT VIOLATED SECTION
19(A)(1), (5), AND (6) OF THE ORDER BY CONDUCTING THREE SEPARATE
MEETINGS WITH EMPLOYEES RELATIVE TO THE IMPLEMENTATION OF A MANDATORY
48-HOUR WORKWEEK. COMPLAINANT CONTENDS THAT THE MEETINGS WITH EMPLOYEES
WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER AND THE UNION WAS NOT AFFORDED AN OPPORTUNITY TO BE PRESENT AT THE
MEETINGS AS REPRESENTATIVES OF THE UNION. RESPONDENT CONTENDS THAT THE
MEETINGS WERE NOT "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER, AND IN ANY EVENT, THE UNION WAS NOTIFIED OF THE
ACTIVITY'S INTENTION TO HAVE SUCH MEETINGS AND ACCORDINGLY HAD AN
OPPORTUNITY TO BE PRESENT AND INDEED A UNION REPRESENTATIVE WAS PRESENT
AT ONE OF THE MEETINGS.
ON JUNE 11, 1973, MR. JOHN K. LACY, THE ACTIVITY'S CHIEF OF AIR
TRAFFIC SYSTEMS DIVISION AT NAFEC, HELD A MEETING WITH REPRESENTATIVES
OF THE UNION FOR ;HE PURPOSE OF CONSULTING WITH THE UNION ON A PROPOSED
MANDATORY 48-HOUR WORKWEEK IN THE ACTIVITY'S COMPUTER OPERATOR SECTION.
COMPLAINANT IS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF
EMPLOYEES IN THAT SECTION. /8/ TWO OTHER ACTIVITY OFFICIALS ATTENDED
THE MEETING; MR. YANNETTI, BRANCH CHIEF, AND MR. ROGER MINGO, CHIEF OF
OPERATIONS SECTION 8131. THE UNION WAS REPRESENTED BY ITS PRESIDENT,
MR. MICHAEL MASSIMINO, AND ITS VICE-PRESIDENT, MRS. CHICK BRADBURY.
AT THE MEETING, WHICH WAS APPROXIMATELY TWO HOURS IN DURATION, THE
DETAILS OF THE PROPOSED 48-HOUR MANDATORY WORKWEEK WHICH WAS TO BE PUT
INTO EFFECT ON JUNE 25, WERE EXPLAINED AND DISCUSSED. THE UNION
REPRESENTATIVES EXPRESSED DISSATISFACTION OVER THE MANDATORY NATURE OF
THE SCHEDULED WORKWEEK AND MR. LACEY EXPLAINED THE REASONS WHY THE
ACTIVITY FELT COMPELLED TO INCREASE THE WORKWEEK FROM 40 HOURS TO 48
HOURS ON A MANDATORY BASIS. THE PARTIES DISCUSSED VARIOUS ALTERNATIVES
TO A MANDATORY 48-HOUR WORKWEEK AS WELL AS THE ADVERSE IMPACT THE
ENLARGED WORKWEEK MIGHT HAVE ON THE EMPLOYEES. THE DISCUSSION ALSO
INCLUDED THE SUBJECT OF POSSIBLE DISCIPLINARY ACTIONS WHICH COULD HAVE
RESULTED FROM A REFUSAL TO PERFORM THE ADDITIONAL MANDATORY 8 HOURS
WORK.
NEAR THE CONCLUSION OF THE MEETING, THE ACTIVITY INFORMED THE UNION
THAT IT WOULD NOTIFY COMPUTER OPERATORS OF THE MANDATORY 48-HOUR
WORKWEEK BY POSTING A NOTICE AT LEAST 7 DAYS PRIOR TO A CHANGE IN WORK
SCHEDULE AND POSSIBLY ALSO NOTIFY THE EMPLOYEES BY LETTER. MR. LACY IN
THE PRESENCE OF THE UNION REPRESENTATIVES ADVISED MR. YANNETTI AND MR.
MINGO THAT THEY SHOULD DEVISE A WAY TO PERSONALLY INFORMED THE AFFECTED
EMPLOYEES, "EYEBALL-TO-EYEBALL," OF THE NEW WORKWEEK BEFORE THE FORMAL
NOTICE WAS POSTED. THE UNION REPRESENTATIVES DID NOT OBJECT OR EXPRESS
ANY INTEREST IN BEING PRESENT AT THE EMPLOYEE MEETINGS.
WITHOUT FURTHER DISCUSSION WITH THE UNION, ON JUNE 12 AND 13, 1973,
THE ACTIVITY CONDUCTED THREE MEETINGS WITH EMPLOYEES IN THE COMPUTER
OPERATOR UNIT. THE MEETINGS WERE CONDUCTED AFTER EACH OF THE THREE WORK
SHIFTS AT APPROXIMATELY 4 P.M., 12 MIDNIGHT, AND 8 A.M. THE EMPLOYEES
WERE NOTIFIED THAT ATTENDANCE AT THE MEETINGS WAS VOLUNTARY. MR. MINGO
ADDRESSED THE EMPLOYEES AT EACH OF THE THREE MEETINGS INFORMING THEM OF
THE NEW WORKWEEK AND ANSWERING QUESTIONS RELATED THERETO.
THE FIRST SUCH MEETING WAS HELD AT APPROXIMATELY 4 P.M., ON JUNE 12,
1973, AND WAS ATTENDED BY APPROXIMATELY 15 EMPLOYEES INCLUDING THE
UNION'S VICE-PRESIDENT, MRS. BRADBURY, A COMPUTER OPERATOR ON THE 8
A.M. TO 4 P.M., SHIFT. ALTHOUGH MRS. BRADBURY DID NOT TESTIFY IN THIS
PROCEEDING, IT UNDENIED THAT ALTHOUGH SHE DID NOT RECEIVE AN INVITATION
TO ATTEND THIS MEETING IS THE UNION'S REPRESENTATIVE, SHE NEVERTHELESS
DID ATTEND THE MEETING AND PARTAKE IN THE DISCUSSION. /9/ MRS. BRADBURY
WAS THE UNION'S "POINT OF CONTACT" FOR THE COMPUTER OPERATOR UNIT AND AS
SUCH WAS EXPECTED TO REPRESENT THE UNION AT ANY MEETINGS BETWEEN THE
ACTIVITY AND UNION RELATIVE TO MATTERS AFFECTING THIS GROUP OF
EMPLOYEES.
PUTTING ASIDE THE QUESTION OF WHETHER THE THREE MEETINGS DISCUSSED
ABOVE WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF
THE ORDER, I FIND THAT THE UNION WAS AFFORDED AN OPPORTUNITY TO BE
PRESENT AT THE MEETINGS AND ACCORDINGLY NO VIOLATION OF THE ORDER HAS
BEEN ESTABLISHED. /10/ THUS, AT THE MEETING OF JUNE 11, 1973, BETWEEN
REPRESENTATIVES OF THE ACTIVITY AND THE UNION, COMPLAINANT WAS MADE
AWARE THAT IN THE NEAR FUTURE PERSONAL MEETINGS WERE TO OCCUR BETWEEN
THE ACTIVITY AND UNIT EMPLOYEES TO EXPLAIN THE CHANGE IN WORKWEEK.
HOWEVER, THE UNION MADE NO INQUIRIES ABOUT THE INTENDED MEETINGS WITH
UNIT EMPLOYEES NOR DID THEY OFFER ANY OBJECTIONS OR EXPRESS ANY INTEREST
IN ATTENDING SUCH MEETINGS. MOREOVER, THE UNION'S VICE-PRESIDENT AND
"POINT OF CONTACT," MRS. BRADBURY, OBVIOUSLY RECEIVED SPECIFIC
NOTIFICATION OF THE FIRST MEETING AND WAS PRESENT AND PARTICIPATED IN
WHATEVER DISCUSSION TRANSPIRED.
THE UNION URGES THAT SOME FORM OF PERSONALIZED NOTICE OF THE SPECIFIC
MEETINGS WAS REQUIRED TO BE GIVEN TO MRS. BRADBURY OR THE UNION
PRESIDENT AS REPRESENTATIVES OF THE UNION. I REJECT THIS CONTENTION IN
THE CIRCUMSTANCES OF THIS CASE. SINCE THE UNION WAS PUT ON NOTICE THAT
MEETINGS WITH EMPLOYEES WERE TO BE HELD IN THE IMMEDIATE FUTURE AND FROM
ITS LACK OF CONCERN THE ACTIVITY COULD HAVE REASONABLY CONCLUDED THAT
THE UNION WAS NOT INTERESTED IN ATTENDING SUCH MEETINGS. IN ANY EVENT,
ACTUAL NOTICE OF THE JUNE 12 MEETING TO MRS. BRADBURY, THE UNION'S
"POINT OF CONTACT," IRRESPECTIVE OF WHETHER SHE RECEIVED NOTIFICATION AS
THE UNION'S REPRESENTATIVE OR AN EMPLOYEE, SATISFIES ANY REQUIREMENT OF
SECTION 10(E) OF THE ORDER THAT THE UNION BE GIVEN AN OPPORTUNITY TO BE
REPRESENTED AT THE MEETING. /11/ FURTHER, I NOTE THAT AT THE TIME OF
THE JUNE 12 MEETING MRS. BRADBURY DID NOT OBJECT TO HAVING NOT RECEIVED
NOTIFICATION OF THE MEETING AS A "UNION REPRESENTATIVE" /12/ AND THROUGH
HER ATTENDANCE AT THE MEETING SHE WAS AGAIN PUT ON NOTICE THAT OTHER
SUCH MEETINGS WOULD IN ALL LIKELIHOOD OCCUR. SHE WAS, AT THAT TIME, IN
A POSITION TO INQUIRE AS TO THE DETAILS OF THE FOLLOWING MEETINGS, SUCH
AS THE TIME AND PLACE, BUT APPARENTLY MADE NO EFFORT TO DO SO. I CAN
ONLY ASSUME THAT IF MRS. BRADBURY DID NOT ATTEND THE SUBSEQUENT
MEETINGS, SHE KNEW OR SHOULD HAVE KNOWN OF THESE MEETINGS BUT DECIDED TO
DO NOTHING WITH RESPECT THERETO.
ACCORDINGLY I FIND THAT IN THE CIRCUMSTANCES OF THIS CASE COMPLAINANT
HAS NOT MET ITS BURDEN OF PROVING THE ALLEGATION IN THE COMPLAINT BY A
PREPONDERANCE OF THE EVIDENCE AND I RECOMMEND THAT THE COMPLAINT HEREIN
BE DISMISSED IN ITS ENTIRETY.
III. CASE NO. 32-3071 (CA)
THE COMPLAINT IN THIS MATTER, FILED ON NOVEMBER 14, 1972, BY LOCAL
1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, (HEREAFTER REFERRED TO
AS THE UNION OR COMPLAINANT) ALLEGES THAT RESPONDENT VIOLATED SECTION
19(A)(1), (5), AND (6) OF THE ORDER. COMPLAINANT CONTENDS THAT
RESPONDENT VIOLATED THE ORDER WHEN THE ACTIVITY'S REPRESENTATIVES MET
WITH AN EMPLOYEE ON VARIOUS OCCASIONS WITHOUT AFFORDING THE UNION AN
OPPORTUNITY TO BE PRESENT AS REQUIRED BY SECTION 10(E) OF THE ORDER AND
WITHOUT INFORMING THE EMPLOYEE OF HER RIGHT TO UNION REPRESENTATION AT
THE MEETINGS.
ON AUGUST 16, 1972, MRS. CLEO JONES, A SIMULATOR OPERATOR /13/ AT THE
ACTIVITY HAD A MEETING WITH HER SUPERVISOR, MRS. LOUISE DILKS AND WAS
GIVEN A PERFORMANCE EVALUATION ON A PROJECT SHE HAD RECENTLY COMPLETED.
IN THE NORMAL COURSE OF HER EMPLOYMENT MRS. JONES COULD BE EXPECTED TO
WORK ON THREE OR FOUR PROJECTS DURING THE COURSE OF A YEAR AND UPON THE
COMPLETION OF A PROJECT AN EMPLOYEE IS GIVEN A PROJECT EVALUATION.
DURING THE MEETING OF AUGUST 16, MRS. JONES WAS GIVEN HER EVALUATION
FOR A PROJECT SHE WORKED ON BETWEEN APRIL 11, 1972, AND JULY 28, 1972.
THE EVALUATION DISCLOSED THAT MRS. JONES WAS GENERALLY RATED AS "MEETS
REQUIREMENTS" /14/ IN THOSE AREAS OF HER PERFORMANCE FOR WHICH SHE WAS
RATED. MRS. JONES CONTESTED HER EVALUATION CONTENDING THAT IF ANY
SIMULATOR OPERATOR RECEIVED A RATING OF "EXCEEDS REQUIREMENTS" OR "FAR
EXCEEDS REQUIREMENTS" THEN SHE SHOULD ALSO RECEIVE SUCH A RATING. /15/
ACCORDINGLY, MRS. JONES WOULD NOT SIGN THE EVALUATION. MRS. DILKS ASKED
MRS. JONES TO INDICATE IN WRITING WHY SHE FELT SHE SHOULD BE RATED
HIGHER AND IN WHAT CATEGORIES. MRS. JONES REFUSED. SINCE THE PARTIES
COULD NOT AGREE ON THE EVALUATION, MRS. DILKS SUGGESTED THAT THE MATTER
BE TAKEN UP WITH MRS. DORIS CANADA, WHO WAS MRS. DILKS' SUPERVISOR AND
MRS. JONES' SECOND-LEVEL SUPERVISOR.
ON THE FOLLOWING DAY (AUGUST 17) WHILE WALKING IN THE CAFETERIA MRS.
JONES MET MICHAEL MASSIMINO, THE UNION PRESIDENT. MRS. JONES INFORMED
MR. MASSIMINO OF HER DISSATISFACTION WITH HER EVALUATION AND HER REFUSAL
TO SIGN IT. MASSIMINO TOLD MRS. JONES THAT IF SHE WISHED, SHE COULD
SIGN THE EVALUATION AND PLACE A COMMENT ON THE DOCUMENT TO THE EFFECT
THAT SHE OBJECTED TO THE RATINGS. MR. MASSIMINO ALSO TOLD MRS. JONES
THAT SHE COULD APPEAL THE EVALUATION IF SHE WANTED AND INVITED HER TO
KEEP HIM "INFORMED."
LATER THAT DAY MRS. DILKS TOLD MRS. JONES THAT SHE WAS WANTED IN MRS.
CANADA'S OFFICE FOR A MEETING. MRS. JONES REPORTED TO MRS. CANADA'S
OFFICE WHERE SHE WAS MET BY MRS. CANADA, /16/ MRS. DILKS AND MRS. KIRKS,
A SUPERVISOR WHO SUPERVISED MRS. JONES DURING A PORTION OF HER WORK ON
THE PROJECT IN QUESTION AND ACCORDINGLY HAD SOME PARTIAL INPUT WITH
REGARD TO MRS. JONES' EVALUATION. IT IS STANDARD PROCEDURE THAT WHEN A
SIMULATOR OPERATOR DOES NOT AGREE WITH HER FIRST LINE SUPERVISOR'S
RATING, THEN IT IS THEREAFTER DISCUSSED WITH MRS. CANADA. MRS. CANADA
HAD BEEN ADVISED BY MRS. DILKS OF THE CONTROVERSY AND AT THE MEETING HAD
MRS. JONES' EVALUATION IN HER POSSESSION. MRS. CANADA ASKED MRS. JONES
IF SHE COULD JUSTIFY HER ASSESSMENT OF HER WORK WHICH MIGHT WARRANT A
HIGHER RATING AND MRS. JONES AGAIN REPEATED THAT IF ANY ONE OF THE
SIMULATOR OPERATORS RECEIVED AN "EXCEEDS" OR "FAR EXCEEDS," SHE DESERVED
THE SAME RATING. MRS. JONES WAS REQUESTED TO PUT HER POSITION IN
WRITING AND SHE REFUSED. THE PARTIES CONTINUED TO DISCUSS THE
EVALUATION PROCESS AND MRS. CANADA SUGGESTED THAT, IN ORDER TO GET AN
INDEPENDENT VIEW OF MRS. JONES' WORK SINCE THERE APPEARED TO BE A
"STAND-OFF," TWO DIFFERENT SUPERVISORS AND A TRAINING OFFICER WATCHED
MRS. JONES WORK DURING A "RUN" ON HER MACHINE AT SEPARATE TIMES. THOSE
WHO OBSERVED MRS. JONES WOULD THEN DETERMINE WHETHER OR NOT HER RATING
WAS PROPER, AND ALL PARTIES WOULD BE BOUND BY THIS DETERMINATION. MRS.
CANADA ACKNOWLEDGED THAT SUCH A PROCEDURE WAS "UNORTHODOX" OR
"UNPRECEDENTED" AND INFORMED MRS. JONES THAT IF ANOTHER SIMILAR CASE
AROSE, THIS NEW PROCEDURE WOULD HAVE TO BE FOLLOWED. THE ORIGINAL
EVALUATION WOULD BE HELD IN ABEYANCE UNTIL THE EVALUATIONS WERE OBTAINED
FROM THE CLOSE SUPERVISION APPROACH. MRS. AGREED WITH THIS SUGGESTED
PROCEDURE BUT NONETHELESS, TOWARD THE CONCLUSION OF THE MEETING,
INDICATED THAT SHE INTENDED TO FILE A GRIEVANCE OF THE RATING. THE
MEETING LASTED APPROXIMATELY 45 MINUTES.
SOMETIME AFTER HER MEETING IN MRS. CANADA'S OFFICE, BUT ON THE SAME
DAY, MRS. JONES WENT TO THE ACTIVITY'S PERSONNEL OFFICE TO INQUIRE ABOUT
A "BID" SHE HAD PLACED FOR A COMPUTER OPERATOR JOB. DURING HER
CONVERSATION WITH A PERSONNEL EMPLOYEE MRS. JONES DISCUSSED HER
DIFFICULTIES WITH REGARD TO HER CURRENT EVALUATION. THE PERSONNEL
EMPLOYEE SUGGESTED THAT MRS. JONES TALK TO MR. JOHN CARROLL, THE
ACTIVITY'S EEO OFFICER.
SHORTLY THEREAFTER, MRS. JONES MET WITH MR. CARROLL IN HIS OFFICE.
MRS. JONES EXPLAINED THE NATURE OF HER PROBLEM WITH REGARD TO HER
EVALUATION AND INDICATED HER CONCERN THAT THE EVALUATION MIGHT EFFECT
HER PROMOTIONAL OPPORTUNITIES. MRS. JONES ALSO COMPLAINED OF BEING
TREATED UNFAIRLY. MR. CARROLL INFORMED MRS. JONES THAT HE WOULD LOOK
INTO HER PROBLEM AND INDICATED THAT HIS INQUIRY WOULD NOT BE MADE IN
SECRET.
ON AUGUST 23, 1972, MR. CARROLL MET WITH MRS. CANADA AND REQUESTED
THAT A MEETING BE CONDUCTED WITH ALL THE PARTIES IN ORDER TO DISCUSS
MRS. JONES' PROBLEM. THEREUPON MRS. CANADA SENT FOR MRS. JONES AND MRS.
DILKS. THE MEETING WAS CONDUCTED IN MRS. CANADA'S OFFICE AND LASTED
APPROXIMATELY ONE HOUR. IN ATTEMPTING TO ASCERTAIN THE NATURE OF THE
PROBLEM MR. CARROLL QUESTIONED THE PARTICIPANTS ABOUT THE EVALUATION
PROCESS AND INQUIRED INTO AREAS RELATIVE TO PERSONAL HOSTILITY AND THE
FAIRNESS OF THE RATING PROCESS ITSELF. MRS. CANADA'S PROPOSAL TO HAVE
SEPARATE CLOSE SUPERVISION OBSERVE MRS. JONES TO RESOLVE THE EVALUATION
PROBLEM WAS ALSO DISCUSSED. MR. CARROLL INDICATED THAT HE FELT IT WAS
NOT A GOOD POLICY TO HAVE MRS. JONES' WORK "MONITORED." WHILE SEEKING AN
INFORMAL RESOLUTION OF MRS. JONES' PROBLEM, MR. CARROLL SUGGESTED THAT
MRS. JONES AND MRS. DILKS MEET PRIVATELY TO REVIEW THE RATING SINCE IT
APPEARED TO HIM THAT SUCH A DISCUSSION WITH SOME "GIVE AND TAKE" ON BOTH
SIDES MIGHT SETTLE THE MATTER. THIS SUGGESTION WAS ACCEPTABLE TO BOTH
MRS. JONES AND MRS. DILKS.
ON AUGUST 24, 1972, MRS. JONES WAS INFORMED BY SUPERVISOR THAT MRS.
DILKS WISHED TO SEE HER IN THE "A LAB." DURING THIS MEETING MRS. DILKS
INFORMED MRS. JONES THAT SHE REVIEWED THE EVALUATION AND COULD NOT SEE
ANY AREA WHERE MRS. JONES' RATING SHOULD BE CHANGED. AFTER SOME FURTHER
DISCUSSION MRS. DILKS GAVE MRS. JONES A HIGHER RATING IN ONE CATEGORY
AND MRS. JONES ACCEPTED HER RATING IN ANOTHER CATEGORY.
ON THE FOLLOWING DAY, AUGUST 25, MRS. JONES WAS CALLED INTO MRS.
CANADA'S OFFICE. MRS. CANADA HAD BEEN ADVISED BY MRS. DILKS OF THE
MEETING OF THE PRIOR DAY BETWEEN MRS. DILKS AND MRS. JONES AND
APPARENTLY CLEARED UP SOME MISUNDERSTANDING WITH REGARD TO MRS. JONES
ACCEPTING A RATING IN ONE CATEGORY. MRS. CANADA INFORMED MRS. JONES
THAT NOTHING ELSE IN THE EVALUATION COULD BE CHANGED AND IT WOULD GO ON
FILE IN THAT MANNER. MRS. JONES STATED THAT SHE WAS STILL NOT SATISFIED
WITH THE EVALUATION AND WOULD FILE A GRIEVANCE. MRS. CANADA REPLIED
THAT SHE HAD TEN DAYS TO DO SO.
MRS. JONES FILED AN INFORMAL GRIEVANCE ON AUGUST 28, 1972, AND A
FORMAL GRIEVANCE ON SEPTEMBER 2, 1972, CONCERNING HER EVALUATION. THE
UNION REPRESENTED HER THROUGHOUT THE PROCESSING OF THIS GRIEVANCE.
THE UNION CONTENDS THAT THE MEETINGS OF AUGUST 17 AND 23, 1972,
BETWEEN THE ACTIVITY'S SUPERVISORS AND MRS. JONES WERE "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND
ACCORDINGLY WITH THE ACTIVITY WAS OBLIGATED TO AFFORD THE UNION AN
OPPORTUNITY TO BE PRESENT AND TO INFORM MRS. JONES OF HER RIGHT TO UNION
REPRESENTATION AT THESE MEETINGS. AT THE HEARING THE UNION DID NOT
CONTEND THAT THE MEETINGS OF AUGUST 16, 24, AND 25, 1972 BETWEEN
ACTIVITY REPRESENTATIVES AND MRS. JONES WERE "FORMAL DISCUSSIONS" BUT
NEVERTHELESS IT TOOK THE POSITION THAT IF THE MEETINGS OF AUGUST 17 AND
23 WERE NOT FOUND TO BE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF THE
ORDER AND OBLIGATIONS TO THE UNION AND THE EMPLOYEE AS EXPLAINED ABOVE
WOULD FLOW THEREFROM. HOWEVER, IN ITS BRIEF, COMPLAINANT CONTENDS THAT
THE MEETINGS OF AUGUST 24 AND 25 BETWEEN THE ACTIVITY AND THE EMPLOYEE
ALSO MEET THE CRITERIA OF "FORMAL DISCUSSIONS" AS DEFINED IN SECTION
10(E) OF THE ORDER AND ACCORDINGLY THE UNION SHOULD HAVE BEEN AFFORDED
THE OPPORTUNITY TO BE PRESENT AT THOSE MEETINGS AS WELL.
THE ACTIVITY DENIES THAT ANY OF ITS MEETINGS WITH MRS. JONES IN
CONTENTION HEREIN WERE "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E) OF THE ORDER. IT CONTENDS THAT SUCH MEETINGS WERE
PERSONAL AND SPONTANEOUS AND DID NOT CONCERN ANY MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT AND ACCORDINGLY IT
CONTENDS NO UNFAIR LABOR PRACTICE CAN BE FOUND TO HAVE OCCURRED WITH
REGARD TO EITHER UNION OR EMPLOYEE RIGHTS.
SECTION 10(E) OF THE ORDER PROVIDES:
"WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION,
IT IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND TO NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR
REPRESENTING THE INTEREST OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP. THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO
BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT."
ACCORDINGLY, IN ORDER TO ESTABLISH AN OBLIGATION ON THE PART OF THE
ACTIVITY TO GIVE THE UNION AN OPPORTUNITY TO BE REPRESENTED AT ANY OF
THE MEETINGS IT MUST BE ESTABLISHED THAT THE MEETING: WAS A "FORMAL
DISCUSSION;" AND CONCERNED "GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT."
WITH REGARD TO THE MEETING OF AUGUST 17, 1972, /16/ I FIND THAT THIS
MEETING CONSTITUTED A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER. THUS THE MEETING WAS HELD BEFORE THE EMPLOYEE'S
SECOND LEVEL SUPERVISOR WHO ATTEMPTED TO RESOLVE THE MATTER, IN HER
OFFICE, AND IN THE PRESENCE OF BOTH OF MRS. JONES FIRST LEVEL
SUPERVISORS WHO PARTICIPATED IN HER EVALUATION. /17/
I FURTHER FIND THAT THE MEETING OF AUGUST 17 DEALT WITH MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT WITHIN THE
MEETING OF SECTION 10(E) OF THE ORDER. THE DECISION DEPARTED FROM
MERELY A REVIEW OF AN INDIVIDUAL'S WORK PERFORMANCE EVALUATION AND
ATTEMPTS TO RESOLVE DIFFERENCES RELATIVE TO THAT EVALUATION /18/ AND
ENTERED INTO MATTERS WHICH HAD POTENTIALLY FAR REACHING EFFECTS WITH
WIDER RAMIFICATIONS THEN THE RESOLUTION OF THE DISPUTE RELATIVE TO MRS.
JONES' INDIVIDUAL RATINGS. AT THE MEETING MRS. CANADA SUGGESTED AND
MRS. JONES AGREED TO AN "UNORTHODOX" OR "UNPRECEDENTED" METHOD OF
EVALUATING MRS. JONES, I.E. CLOSE SUPERVISION BY TWO SUPERVISORS AND A
TRAINING OFFICER. THIS METHOD OF EVALUATION CONSTITUTED A DEPARTURE
FROM PAST PRACTICE IN THE EVALUATION OF EMPLOYEES WHEN DISPUTES AROSE,
WHICH DEPARTURE MRS. CANADA ADMITTED WOULD HAVE TO BE APPLIED TO OTHER
EMPLOYEES IF THEY SO DESIRED THEREBY ACKNOWLEDGING THE PRECEDENTIAL
NATURE OF THIS NEW PROCEDURE. MOREOVER, CLOSE TO THE CONCLUSION OF THIS
MEETING IT BECAME APPARENT THAT MRS. JONES' CHALLENGE TO HER EVALUATIONS
WAS IN REALITY AN INCIPIENT GRIEVANCE. INDEED MRS. JONES EXPRESSLY
STATED THAT SHE WAS GOING TO FILE A GRIEVANCE AND IN FACT A WRITTEN
GRIEVANCE WAS SUBSEQUENTLY FILED ON THE MATTER.
WHILE AT THE BEGINNING OF THE MEETING OF AUGUST 17 THE ACTIVITY MIGHT
NOT HAVE BEEN ABLE TO FORESEE THE TURN OF EVENTS WHICH OCCURRED, IN MY
VIEW AT SOME POINT DURING THE DISCUSSION, AT LEAST BEFORE A DEFINITE
CONCLUSION AND AGREEMENT WAS REACHED WITH REGARD TO THE NEW EVALUATION
PROCEDURE, IT BECAME INCUMBENT ON THE ACTIVITY TO NOTIFY THE UNION OF
THE STATUS OF THE DISCUSSION AND AFFORD IT AN OPPORTUNITY TO BE PRESENT
AT WHATEVER FURTHER DISCUSSION MIGHT ENSUE. THIS IT FAILED TO DO.
ACCORDINGLY, I CONCLUDE THAT THE ACTIVITY'S FAILURE TO AFFORD THE UNION
AN OPPORTUNITY TO BE PRESENT AT THIS MEETING, IN THE CIRCUMSTANCE
HEREIN, CONSTITUTED A VIOLATION OF BOTH 19(A)(1) /19/ AND 19(A)(6) /20/
OF THE ORDER.
EVEN IF THIS MEETING DID NOT CONSTITUTE A SECTION 10(E) DISCUSSION I
WOULD NEVERTHELESS FIND THAT RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER THROUGH ITS NEGOTIATING WITH AN INDIVIDUAL EMPLOYEE AT
THIS MEETING AND THEREBY AGREEING TO A CHANGE IN EVALUATION PROCEDURES
WITHOUT CONSULTATION WITH THE UNION. IN MY VIEW, THE PROCEDURE USED IN
EVALUATING EMPLOYEES IS A CONDITION OF EMPLOYMENT AND THE ACTIVITY WAS
NOT PRIVILEGED TO PROPOSE AND AGREE TO CHANGE SUCH A CONDITION WITHOUT
AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN ON THE MATTER SINCE THE
UNION HEREIN IS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF
ALL EMPLOYEES IN THE UNIT. THE ASSISTANT SECRETARY HAS PREVIOUSLY HELD
THAT TO BYPASS OR DISREGARD THE EXCLUSIVE REPRESENTATIVE AND TO DEAL
WITH UNIT EMPLOYEES DIRECTLY CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES OR OTHER MATTERS AFFECTING THE WORKING CONDITIONS OF UNIT
EMPLOYEES, IMPROPERLY UNDERMINES THE STATUS OF THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE AND HEREBY VIOLATES SECTION 19(A)(1) AND (6) OF THE
ORDER. /21/
I ALSO CONCLUDE THAT THE MEETING OF AUGUST 23, 1972, BETWEEN MRS.
JONES, MRS. CANADA, MRS. DILKS, AND MR. CARROLL HELD IN MRS. CANADA'S
OFFICE CONSTITUTED A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION
10(E) OF THE ORDER. BOTH THE NATURE OF THE MEETING AND THE CAPACITY OF
THE ACTIVITY'S PARTICIPANTS SUPPORT THIS CONCLUSION. FURTHER, IN THE
ATTEMPT TO RESOLVE THE DISPUTE RELATIVE TO MRS. JONES' EVALUATION, THE
CLOSE SUPERVISION PROCEDURE ORIGINALLY SUGGESTED BY MRS. CANADA WAS
AGAIN DISCUSSED ALTHOUGH SUCH PROCEDURE WAS REJECTED BY MR. CARROLL.
INDEED IT WAS ENTIRELY FORESEEABLE THAT THE DISCUSSION WOULD INVOLVE
THIS NEW PROCEDURE AND MIGHT WELL HAVE PLAYED A MAJOR ROLE IN THE
DISCUSSION AND THE ATTEMPT TO RESOLVE THE DISPUTE. ACCORDINGLY, I
CONCLUDE THAT THIS MEETING CONCERNED A MATTER AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT AND THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY NOT AFFORDING THE UNION AN OPPORTUNITY
TO BE REPRESENTED THEREAT.
I FURTHER CONCLUDE THAT THE MEETING OF AUGUST 25, 1972, BETWEEN MRS.
JONES AND MRS. CANADA IN MRS. CANADA'S OFFICE WAS, IN EFFECT, AN
EXTENSION OF THE MEETINGS OF AUGUST 17 AND 23 AND THE UNION SHOULD HAVE
BEEN AFFORDED AN OPPORTUNITY TO BE PRESENT. I DO NOT FIND IT
CONTROLLING THAT THERE WAS NO DISCUSSION OF THE CLOSE SUPERVISION
PROCEDURE AT THIS MEETING. AT THIS MEETING THERE EXISTED A STRONG
POSSIBILITY OF FURTHER DISCUSSION WITH REGARD TO THE PLAN FOR CLOSE
SUPERVISION OF MRS. JONES TO RESOLVE THE DISPUTE. ACCORDING TO MRS.
CANADA'S TESTIMONY HER FIRST KNOWLEDGE OF MRS. JONES' WITHDRAWAL FROM
HER AGREEMENT FOR CLOSE SUPERVISION CAME WHEN MRS. JONES FILED HER
INFORMAL GRIEVANCE IN WRITING ON AUGUST 28. THEREFORE IN MY VIEW IT WAS
ONLY BY HAPPENSTANCE THAT THE CLOSE SUPERVISION PROCEDURE WAS NOT
DISCUSSED IN DETAIL ON AUGUST 25. UNDER SUCH CIRCUMSTANCES I FIND THAT
THE REQUIREMENTS FOR A SECTION 10(E) DISCUSSION WERE MET AND THE UNION
SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO BE REPRESENTED AT THIS
MEETING.
I REJECT RESPONDENT'S CONTENTION THAT THE UNION'S RIGHT TO BE GIVEN
AN OPPORTUNITY TO BE REPRESENTED AT THE MEETINGS DESCRIBED HEREIN WOULD
ARISE ONLY UPON MRS. JONES REQUESTING UNION REPRESENTATION. UNDER
SECTION 10(E) OF THE ORDER THE UNION'S RIGHT TO BE REPRESENTED AT
"FORMAL DISCUSSIONS" FLOWS PRIMARILY FROM ITS RIGHT AND RESPONSIBILITY
TO REPRESENT ALL UNIT EMPLOYEES AND IS INDEPENDENT OF AN EMPLOYEE'S
CONCOMITANT RIGHT TO CHOSE THE EXCLUSIVE REPRESENTATIVE AS HIS
REPRESENTATIVE. /22/
I ALSO REJECT COMPLAINANT'S CONTENTION THAT THE MEETING BETWEEN MRS.
JONES AND MRS. DILKS IN "A LAB" ON AUGUST 24, 1972, WAS A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E). WHAT TRANSPIRED AT THIS
MEETING WAS MERELY A REVIEW OF AN EMPLOYEE'S EVALUATION BY A FIRST LINE
SUPERVISOR IN AN ATTEMPT TO REACH SOME FORM OF AGREEMENT WITH REGARD TO
THE EVALUATION. THE MEETING WAS AKIN TO THE INITIAL MEETING BETWEEN
THESE TWO INDIVIDUALS ON AUGUST 16 BOTH OF WHICH I FIND LACKED THE
REQUISITE FORMALITY TO CONSTITUTE A SECTION 10(E) MEETING. MOREOVER IT
IS OBVIOUS THAT MRS. DILKS, UNLIKE MRS. CANADA, DID NOT POSSESS THE
AUTHORITY TO REVISE THE EVALUATION PROCESS OR ALTER MRS. CANADA'S
AGREEMENT WITH MRS. JONES.
FURTHER, I DO NOT CONCLUDE THAT UNDER THE ORDER RESPONDENT WAS
OBLIGED TO INFORM MRS. JONES OF HER RIGHT TO UNION REPRESENTATION AT THE
AUGUST 17, 23, AND 25 MEETINGS. /23/ WHILE THE ASSISTANT SECRETARY HAD
HELD THAT UNDER SECTION 10(E), EMPLOYEES HAVE A CONCOMITANT RIGHT TO
REQUEST UNION REPRESENTATION DURING "FORMAL DISCUSSIONS" /24/ I DO NOT
READ SECTION 10(E) OF THE ORDER AS TO REQUIRE THE ACTIVITY TO NOTIFY
MRS. JONES OF HER RIGHT TO REQUEST UNION REPRESENTATION IN THE
CIRCUMSTANCES HEREIN. /25/
IN VIEW OF THE FOREGOING, I MAKE THE FOLLOWING RECOMMENDATIONS TO THE
ASSISTANT SECRETARY:
1. THAT RESPONDENT BE FOUND TO HAVE ENGAGED IN CONDUCT VIOLATIVE OF
SECTION 19(A)(1) AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED, AND THAT AN ORDER, AS
HEREINAFTER SET FORTH WHICH IS
DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER, BE ADOPTED.
2. THAT ANY ALLEGED VIOLATIONS OF THE ORDER NOT SPECIFICALLY FOUND
HEREIN BE DISMISSED.
IV. CASE NOS. 32-3297 (CA) AND 32-3300 (CA)
THE ABOVE CAPTIONED COMPLAINTS WERE FILED ON JULY 23, 1973 AND JULY
25, 1973, RESPECTIVELY, BY LOCAL 1340, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (HEREAFTER REFERRED TO AS THE UNION OR COMPLAINANT) AND
ALLEGED THAT RESPONDENT VIOLATED SECTION 19(A)(1), (5) AND (6) OF THE
ORDER. THE CASES INVOLVE TWO MEETINGS THE ACTIVITY HAD WITH AN EMPLOYEE
WHICH MEETINGS THE UNION CONTENDS AND THE ACTIVITY DENIES WERE "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER.
ON APRIL 25, 1973, THE ACTIVITY ISSUED AN OFFICIAL LETTER OF
REPRIMAND TO MRS. DOROTHY L. KRAVITZ WHO WAS EMPLOYED BY THE ACTIVITY IN
A UNIT FOR WHICH THE UNION HAD EXCLUSIVE REPRESENTATIONAL RIGHTS. /26/
ON THIS SAME DAY OR SHORTLY THEREAFTER, MRS. KRAVITZ BROUGHT THE MATTER
TO THE ATTENTION OF MR. MICHAEL MISSIMINO, PRESIDENT OF THE UNION. MR.
MASSIMINO FELT THAT IF THERE WERE ANY FURTHER PROCEEDINGS REGARDING THE
LETTER OF REPRIMAND THEY WOULD INVOLVE THE AGENCY GRIEVANCE PROCEDURE
AND ACCORDINGLY INFORMED MRS. KRAVITZ THAT HE DID NOT, AT THE TIME,
BELIEVE THAT IT WAS SOMETHING THAT THE UNION COULD DO ANYTHING ABOUT "AS
A UNION." MR. MASSIMINO TOLD MRS. KRAVITZ THAT HE WOULD ASK MR. EUGENE
POLFKER IF HE WOULD SERVE AS HER EMPLOYEE REPRESENTATIVE IN THE MATTER.
MR. POLFKER HAD PREVIOUSLY SUCCESSFULLY REPRESENTED ANOTHER EMPLOYEE IN
AN ADVERSE ACTION CASE, HAVING BEEN INVOLVED IN THAT MATTER FOR THE PAST
FIVE YEARS DUE TO THE COMPLEX NATURE OF THE SITUATION. MR. MASSIMINO
CONTACTED MR. POLFKER AND REQUESTED THAT HE ACT AS MRS. KRAVITZ'S
PERSONAL REPRESENTATIVE IN THE MATTER. MRS. KRAVITZ ALSO CALLED MR.
POLFKER AND HE AGREED TO ACT AS HER PERSONAL REPRESENTATIVE.
BY LETTER DATED MAY 1, 1973, TO MR. ROBERT QUIG, CHIEF OF THE
ACTIVITY'S LOGISTICS DIVISION AND ORIGINATOR OF MRS. KRAVITZ'S LETTER OF
REPRIMAND, MRS. KRAVITZ NOTIFIED MR. QUIG THAT SHE WAS DESIGNATING MR.
PLOFKER AS HER REPRESENTATIVE WITH REGARD TO THE LETTER OF REPRIMAND OF
APRIL 25, 1973. /27/ ON MAY 4, 1973, MR. PLOFKER TELEPHONED MR. QUIG
AND REQUESTED A MEETING. MR. QUIG THEN CALLED MRS. KRAVITZ AND ASKED
HER TO BE IN HIS OFFICE AT THE APPOINTED TIME OF THE MEETING AND ALSO
CALLED MR. MASSIMINO, INFORMED HIM OF THE MEETING AND ASKED HIM IF HE
WISHED TO ATTEND. IN RESPONSE TO A QUESTION ON CROSS-EXAMINATION AS TO
WHY HE ASKED MR. MASSIMINO TO ATTEND THE MEETING OF MAY 4, MR. QUIG
TESTIFIED: "I HAD ISSUED A LETTER OF REPRIMAND WHICH I CONSIDERED TO BE
AN OFFICIAL DISCIPLINARY ACTION AND I-- WITH MY PREVIOUS MEETINGS WITH
MR. MASSIMINO, I THINK HE AND I WERE IN AGREEMENT THAT AN ACTION SUCH
AS THIS BEING AN OFFICIAL ACTION, THAT ANY MEETINGS SUBSEQUENT TO SUCH
AN ACTION WOULD BE ATTENDED BY THE UNION REPRESENTATIVE EITHER MR.
MASSIMINO OR SOMEONE HE MIGHT DESIGNATE."
THE MEETING OF MAY 4 WAS HELD IN MR. QUIG'S OFFICE AND WAS ATTENDED
BY MR. QUIG, MRS. KRAVITZ, MR. PLOFKER, AND MR. MASSIMINO. DURING THE
DISCUSSION MR. PLOFKER POINTED OUT SEVERAL PROCEDURAL DEFECTS WITH
RESPECT TO THE LETTER OF REPRIMAND INDICATING THAT THE LETTER WAS IN
VIOLATION OF VARIOUS REGULATIONS ESPECIALLY SINCE THE LETTER OF
REPRIMAND DID NOT SPECIFICALLY SET FORTH THE MATTER ABOUT WHICH MRS.
KRAVITZ WAS BEING REPRIMANDED. MR. QUIG DEFENDED THE LETTER INDICATING
THAT IT WAS SIMILAR TO OTHER LETTERS OF REPRIMAND HE HAD ISSUED IN THE
PAST. AFTER SOME DISCUSSION MR. QUIG AGREED TO WITHDRAW THE LETTER OF
REPRIMAND BECAUSE OF THE PROCEDURAL DEFICIENCIES AND ISSUE A NEW LETTER
IN STRICT ACCORDANCE WITH FAA REGULATIONS. ON THAT SAME DAY THE LETTER
OF REPRIMAND WAS OFFICIALLY WITHDRAWN BY MR. QUIG. THE WITHDRAWAL
LETTER /28/ INDICATES THAT SEPARATE COPIES OF THE LETTER WERE SENT TO
MR. PLOFKER AND MR. MASSIMINO.
ON MAY 9, 1973, MR. QUIG HAD HIS SECRETARY CALL MRS. KRAVITZ'S
SUPERVISOR AND REQUEST THAT MRS. KRAVITZ REPORT TO HIS OFFICE. UPON
MEETING WITH MRS. KRAVITZ, MR. QUIG ADVISED HER THAT HE WANTED TO
DISCUSS, IN ACCORDANCE WITH FAA PROCEDURES, THE BASIS FOR WHICH HE FELT
A LETTER OF REPRIMAND SHOULD BE ISSUED TO HER. MRS. KRAVITZ REPLIED
THAT SHE DID NOT WANT TO DISCUSS THE MATTER WITHOUT HER REPRESENTATIVE
MR. PLOFKER BEING PRESENT. MR. QUIG INFORMED HER THAT IT WAS NOT
NECESSARY TO HAVE MR. PLOFKER PRESENT SINCE THE MEETING INVOLVED A
PERSONAL MATTER OF A SUPERVISOR-EMPLOYEE RELATIONSHIP. /29/ MRS.
KRAVITZ DID NOT AGREE WITH MR. QUIG AND AGAIN REQUESTED THE ATTENDANCE
OF MR. PLOFKER. MR. QUIG AGAIN REFUSED THIS REQUEST AND INFORMED MRS.
KRAVITZ THAT SHE COULD CALL THE PERSONNEL OFFICE TO ASCERTAIN HER
ENTITLEMENT TO REPRESENTATION AT THE MEETING AND OFFERED TO CALL HIMSELF
IF SHE DESIRED. MRS. KRAVITZ REJECTED THIS PROPOSAL AND INDICATED THAT
SHE DID NOT WISH TO TALK TO ANYONE BUT MR. POLFKER. DURING THE
DISCUSSION MR. QUIG SPELLED OUT THE SPECIFIC OFFENSES WITH WHICH MR.
KRAVITZ HAD BEEN CHARGED AND THE SPECIFIC REGULATIONS DEALING THEREWITH.
MR. KRAVITZ QUESTIONED A NUMBER OF MATTERS DEALING WITH THE FACTUAL
BACKGROUND FOR THE REPRIMAND AND ALSO QUESTIONED MR. QUIG'S AUTHORITY TO
DISCIPLINE HER FOR OFF-THE-JOB CONDUCT. /30/ THROUGHOUT THE MEETING
MRS. KRAVITZ CONTINUALLY EXPRESSED THE DESIRE FOR MR. PLOFKER'S
PRESENCE.
A NEW OFFICIAL REPRIMAND WAS ISSUED TO MRS. KRAVITZ BY MR. QUIG ON
MAY 10, 1973. THIS LETTER SPELLED OUT IN SOME DETAIL THE REASONS FOR
THE REPRIMAND. /31/ ON THAT SAME DAY MRS. KRAVITZ DISCUSSED THE MATTER
WITH MR. PLOFKER AND HE ASSISTED HER IN DRAFTING A LETTER OF COMPLAINT
/32/ ADDRESSED TO MR. HAROLD WILLIAMS, THE ACTIVITY'S EXECUTIVE OFFICER.
IN THE LETTER, MRS. KRAVITZ STATED THAT SHE WISHED TO FILE AN INFORMAL
COMPLAINT AGAINST MR. QUIG ALLEGING HARASSMENT BY HIM WITH REGARD TO
VARIOUS MATTERS INCLUDING MR. QUIG'S FAILURE TO PERMIT HER TO HAVE A
REPRESENTATIVE PRESENT AT THE MEETING OF MAY 9.
AFTER RECEIVING THE COMPLAINT MR. WILLIAMS CONCLUDED THAT HE NEEDED
MORE SPECIFICS AND ACCORDINGLY DIRECTED HIS SECRETARY TO ASK MRS.
KRAVITZ TO COME TO HIS OFFICE AND ADVISE HER THAT SHE COULD BRING WITH
HER ANYONE SHE WISHED. MR. WILLIAMS SECRETARY CALLED MRS. KRAVITZ WHO
INDICATED THAT SHE WISHED TO HAVE MR. PLOFKER REPRESENT HER. THEREUPON
MR. WILLIAMS SECRETARY CALLED MR. PLOFKER AND INFORMED HIM OF THE
MEETING TO BE HELD ON MAY 14, 1973. THE ACTIVITY MADE NO EFFORT TO
NOTIFY ANY UNION OFFICIAL OF THE INTENDED MEETING. /33/
ON MAY 14, A TWO-HOUR MEETING WAS HELD IN MR. WILLIAMS' OFFICE AND
WAS ATTENDED BY MR. WILLIAMS, MRS. KRAVITZ AND MR. PLOFKER. MR.
WILLIAMS TESTIFIED THAT THE PURPOSE OF THE MEETING WAS TO "PIN DOWN"
SOME SPECIFICS OF THE ALLEGATIONS. /34/ ACCORDINGLY, AT THE MEETING MR.
WILLIAMS INDICATED THAT THE CHARGE WAS A SERIOUS ONE AND HE REQUIRED
MORE INFORMATION RELATIVE TO THE NATURE OF THE ALLEGED HARASSMENT. MR.
PLOFKER DID MOST OF THE TALKING ON BEHALF OF MRS. KRAVITZ AND AT ONE
TIME WAS ADMONISHED BY MR. WILLIAMS FOR NOT LETTING MRS. KRAVITZ SPEAK.
MR. PLOFKER OBJECTED TO THIS ADMONISHMENT STATING THAT HE WAS "HER
REPRESENTATIVE." AT THIS MEETING MR. PLOFKER CONTENDED THAT THE SECOND
LETTER OF REPRIMAND GIVEN TO MRS. KRAVITZ ON MAY 10 WAS ALSO
PROCEDURALLY DEFECTIVE. THE PARTIES REACHED NO AGREEMENT AND MR.
WILLIAMS CONCLUDED THE MEETING BY INDICATING THAT HE WOULD FILE HIS
REPORT IN RESPONSE TO THE COMPLAINT.
MR. WILLIAMS' REPORT DATED MAY 18, 1973, A THREE PAGE DOCUMENT, /35/
FOUND NO EVIDENCE TO SUPPORT MRS. KRAVITZ'S CLAIM OF HARASSMENT BY MR.
QUIG. THE LETTER INFORMED MRS. KRAVITZ THAT IF SHE DESIRED TO FILE A
FORMAL GRIEVANCE IN THE MATTER SHE SHOULD SUBMIT IT WITHIN FIVE DAYS
AFTER RECEIPT OF HIS INFORMAL DECISION.
THE STATUS OF EUGENE PLOFKER
THE ACTIVITY CONTENDS AND THE UNION DENIES THAT MR. PLOFKER WAS A
REPRESENTATIVE OF THE UNION. IF MR. PLOFKER WAS A REPRESENTATIVE OF THE
UNION THEN THE NOTIFICATION TO HIM WITH REGARD TO THE MEETING OF MAY 14,
1973, WOULD CONSTITUTE NOTIFICATION TO THE UNION. THUS THE UNION WOULD
HAVE BEEN ACCORDED AN "OPPORTUNITY TO BE REPRESENTED" AT THE MEETING OF
MAY 14 AND NO BREACH OF A DUTY UNDER SECTION 10(E) OF THE ORDER WOULD BE
ESTABLISHED.
THE EVIDENCE REVEALS THAT IN OCTOBER 1972, THE UNION ISSUED A NOTICE
TO ITS MEMBERS WHICH STATED INTER ALIA: "ADJUSTMENT AND GRIEVANCE
COMMITTEE GEN PLOFKER IS CHAIRMAN AND WILL APPOINT MEMBERS AS REQUIRED."
THE NOTICE ALSO CONTAINED THE NOTATIONS "DO NOT POST" AND "FOR MEMBERS
ONLY." MR. PLOFKER TESTIFIED THAT WHILE HE IS A MEMBER OF THE UNION HE
HOLDS NO OFFICE. HE ASSERTS THAT THE NOTICE OF OCTOBER 1972, WAS ISSUED
WITHOUT HIS CONSENT AND NO COMMITTEE WAS EVER ORGANIZED NOR DID HE AT
ANY TIME REPRESENT THE UNION IN ANY GRIEVANCE MATTERS ALTHOUGH HE
ACKNOWLEDGED THAT FROM TIME TO TIME HE DISCUSSED GRIEVANCES WITH MR.
MASSIMINO.
THE EVIDENCE ALSO DISCLOSES THAT ON TWO OCCASIONS MR. PLOFKER SAT IN
AT A MEETING BETWEEN THE ACTIVITY AND THE UNION AS A REPRESENTATIVE FOR
THE UNION. ON ONE OCCASION IN SEPTEMBER OR OCTOBER 1972, MR. MASSIMINO
COULD NOT ATTEND THE MEETING AND REQUESTED MR. PLOFKER TO REPRESENT THE
UNION. ON ANOTHER OCCASION IN MARCH OR APRIL 1973, MR. MASSIMINO SOUGHT
MR. PLOFKER'S ATTENDANCE TO ACCOMPANY HIM TO A MEETING WITH THE
ACTIVITY.
I DO NOT CONCLUDE THAT THE EVIDENCE ESTABLISHES THAT MR. PLOFKER WAS
A UNION REPRESENTATIVE. THUS THE NOTIFICATION OF OCTOBER 1972, WAS
NEVER PUBLISHED TO THE ACTIVITY AND THEREAFTER MR. PLOFKER DID NOT
ENGAGE IN ANY ACTIVITY WHICH COULD BE CONSTRUED AS ACTING AS CHAIRMAN OR
REPRESENTATIVE OF A GRIEVANCE COMMITTEE. NOR AM I PERSUADED THAT BASED
UPON MR. PLOFKER'S INTERMITTENT, AD HOC APPEARANCES AS A UNION
REPRESENTATIVE THE ACTIVITY COULD HAVE REASONABLY ASSUMED THAT HE WAS A
REPRESENTATIVE OF THE UNION FOR ALL PURPOSES. MOREOVER I FIND THAT AT
NO TIME WAS MR. PLOFKER DESIGNATED TO ACT FOR MRS. KRAVITZ AS A
REPRESENTATIVE OF THE UNION. RATHER, HIS ACTIONS ON BEHALF OF MRS.
KRAVITZ WERE AS A PERSONAL REPRESENTATIVE. I FURTHER FIND THAT THE
ACTIVITY WAS WELL AWARE OF MR. PLOFKER'S STATUS AS A PERSONAL
REPRESENTATIVE OF MRS. KRAVITZ, NOTING PARTICULARLY MRS. KRAVITZ'S
NOTICE OF MR. QUIG OF MAY 1 DESIGNATING MR. PLOFKER AS HER
REPRESENTATIVE; /36/ MR. QUIG'S SEPARATE NOTIFICATION TO MR. MASSIMINO
OF THE MAY 4 MEETING AND HIS TESTIMONY THAT MR. MASSIMINO WAS INVITED
SINCE HE THOUGHT THE UNION SHOULD BE REPRESENTED AT THE MEETING; MR.
QUIG'S NOTIFICATION TO BOTH MR. PLOFKER AND MR. MASSIMINO THAT AS A
RESULT OF THE MAY 4 MEETING MRS. KRAVITZ'S NOTICE OF REPRIMAND WAS BEING
WITHDRAWN; /37/ AND MRS. KRAVITZ'S LETTER OF COMPLAINT TO MR. WILLIAMS
DATED MAY 10, 1973, /38/ WHEREIN SHE ALLEGES THAT MR. QUIG CAUSED
DIFFICULTY AND INCONVENIENCE NOT ONLY PERSONALLY, BUT ALSO TO HER
REPRESENTATIVE MR. PLOFKER AND THE UNION OFFICIALS. FURTHER THERE WAS
NO TESTIMONY AT THE HEARING THAT EITHER MR. QUIG OR MR. WILLIAMS AT THE
TIME OF THE MEETINGS WITH MRS. KRAVITZ WERE AWARE OF OR RELIED ON THE
OCTOBER 1972, UNION NOTICE DISCUSSED ABOVE OR CONSIDERED MR. PLOFKER TO
BE ANYTHING MORE THAN MRS. KRAVITZ'S PERSONAL REPRESENTATIVE.
THE UNION CONTENDS THAT THE ACTIVITY VIOLATED THE ORDER BY ITS
FAILURE TO AFFORD THE UNION AN OPPORTUNITY TO BE REPRESENTED AT THE
MEETINGS OF MAY 9 AND MAY 14, 1973, WHICH IT ALLEGES WERE "FORMAL
DISCUSSIONS" WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. THE
UNION FURTHER ALLEGES THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) OF THE
ORDER BY ITS REFUSAL TO PERMIT MRS. KRAVITZ TO BE REPRESENTED BY HER
PERSONAL REPRESENTATIVE DURING THE MEETING OF MAY 9.
THE ACTIVITY TAKES THE POSITION THAT THE MEETINGS OF MAY 9 AND MAY
14, 1973, WITH MRS. KRAVITZ DID NOT CONSTITUTE "FORMAL DISCUSSIONS"
WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. IT CONTENDS THAT THE
MEETINGS LACKED THE FORMALITY REQUIRED BY SECTION 10(E) AND DID NOT
INVOLVE SUBJECT MATTER ENCOMPASSED BY SECTION 10(E). THE ACTIVITY ALSO
CONTENDS THAT A UNION REPRESENTATIVE (MR. PLOFKER) IN FACT ATTENDED THE
MEETING OF MAY 14. FURTHER THE ACTIVITY ARGUES THAT NO VIOLATION OF
SECTION 19(A)(1) OF THE ORDER IS ESTABLISHED WHERE, DURING A SECTION
10(E) MEETING, AN ACTIVITY DENIES AN INDIVIDUAL AN OPPROTUNITY TO BE
REPRESENTED BY A PERSONAL REPRESENTATIVE. THE MEETING
THE MEETING OF MAY 9
I CONCLUDE THAT THE MEETING OF MAY 9, 1973, BETWEEN MR. QUIG AND MRS.
KRAVITZ WAS A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF
THE ORDER BOTH AS TO THE FORMALITY OF THE DISCUSSION AND THE SUBJECT
MATTER UNDER CONSIDERATION. THUS THE FORMALITY OF THE MEETING IS
SUPPORTED BY THE FACT THAT MRS. KRAVITZ MET WITH THE CHIEF OF THE
ACTIVITY'S LOGISTIC DIVISION, HER FOURTH LEVEL SUPERVISOR IN HIS OFFICE.
WAS AN INTEGRAL AND NECESSARY PART OF TAKING FORMAL DISCIPLINARY ACTION
AGAINST MRS. KRAVITZ. THE DECISION TO ISSUE A LETTER OF REPRIMAND TO
MRS. KRAVITZ HAD LONG SINCE BEEN MADE. IN A MEMO DATED APRIL 25, 1973,
FROM MR. QUIG TO THE ACTIVITY'S SECURITY DIVISION /39/ MR. QUIG STATED,
INTER ALIA: ". . . IN VIEW OF SUCH CONDUCT, I HAVE DETERMINED IN
ACCORDANCE WITH HANDBOOK 3750.4, MRS. KRAVITZ SHOULD BE ISSUED A LETTER
OF REPRIMAND. ACCORDINGLY, A LETTER OF REPRIMAND WILL BE ISSUED TO MRS.
KRAVITZ NOT LATER THAN APRIL 27, 1973." THE SERIOUS NATURE OF A FORMAL
LETTER OF REPRIMAND IS ATTESTED TO BY THE ACTIVITY'S OWN REGULATIONS
WHICH INCLUDE LETTERS OF REPRIMAND UNDER "FORMAL DISCIPLINARY ACTIONS"
/40/ AND STATES INTER ALIA: "THIS TYPE OF DISCIPLINARY ACTION SHOULD BE
USED WHEN THE SITUATION OR OFFENSE IS SERIOUS AND WARRANTS MORE THAN AN
INFORMAL CORRECTION, OR IN THE CASE OF REPEATED INFRACTIONS OF A MINOR
NATURE."
I FURTHER CONCLUDE THAT THE SUBJECT MATTER OF THE DISCUSSION WAS A
MATTER "AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES OF THE UNIT."
/41/ REGULATIONS CONCERNING PERSONAL CONDUCT UNDER WHICH AN EMPLOYEE'S
JOB TENURE MAY BE AFFECTED ARE ONE OF THE CONDITIONS OF EMPLOYMENT. THE
UNION HAS A VITAL INTEREST ON BEHALF OF ALL EMPLOYEES IN THE UNIT AS TO
HOW THESE REGULATIONS ARE INTERPRETED AND APPLIED. THUS THE
INTERPRETATION AND APPLICATIONS OF REGULATIONS OFTEN TIMES HAVE
PRECEDENTIAL VALUE WITH REGARD TO OTHER EMPLOYEES CONDUCT AND BY
PARTICULARIZING THOSE SITUATIONS WHERE DISCIPLINARY ACTION MAY BE TAKEN,
THE PARAMETERS OF ACCEPTABLE AND UNACCEPTABLE EMPLOYEE CONDUCT IS
DEMONSTRATED AND EMPLOYEES IN THE UNIT MUST GOVERN THEIR ACTIONS
ACCORDINGLY. MOREOVER, MR. QUIG INDICATED THAT THE ISSUANCE OF A LETTER
OF REPRIMAND TO MRS. KRAVITZ WAS DISCRETIONARY WITH HIM. ACCORDINGLY,
THE UNION SHOULD HAVE BEEN ACCORDED AN OPPORTUNITY TO OBSERVE AND
PARTAKE IN THE DISCUSSION SINCE THEY WERE IN A POSITION TO KNOW MORE
THAN ANY INDIVIDUAL EMPLOYEE WHETHER THE INTERPRETATION AND APPLICATION
OF THE REGULATIONS WITH REGARD TO MRS. KRAVITZ FOLLOWED OR DEVIATED
FROM PAST PRACTICE OR WAS RELEVANT TO OTHER CONCURRENT SITUATIONS. /42/
THE UNION AS THE COLLECTIVE BARGAINING REPRESENTATIVE OF ALL EMPLOYEES
IN THE UNIT THEREFORE MUST BE ACCORDED AN OPPORTUNITY TO OBSERVE AND
PARTAKE IN SUCH DISCUSSIONS.
IN VIEW OF THE FOREGOING I FIND THAT RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER BY ITS FAILURE TO AFFORD THE UNION AN
OPPORTUNITY TO BE REPRESENTED AT THE MEETING BETWEEN MRS. KRAVITZ AND
MR. QUIG ON MAY 9, 1973.
I DO NOT FIND HOWEVER THAT RESPONDENT'S CONDUCT VIOLATED SECTION
19(A)(5) OF THE ACT AND ACCORDINGLY SHALL RECOMMEND DISMISSAL OF THE
ALLEGATION. THE ASSISTANT SECRETARY HELD IN UNITED STATES ARMY
SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42, THAT
SECTION 19(A)(5) REFERS TO MATTERS RELATED TO ACCORDING APPROPRIATE
RECOGNITION RATHER THAN THE CONDUCT OF THE BARGAINING RELATIONSHIP AS
INVOLVED HEREIN.
NOR DO I FIND THAT SECTION 19(A)(1) OF THE ORDER WAS VIOLATED WHEN
THE ACTIVITY REFUSED TO ALLOW MRS. KRAVITZ TO HAVE A PERSONAL
REPRESENTATIVE PRESENT AT THE MEETING OF MAY 9. THE ASSISTANT SECRETARY
HELD IN U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL, FORT
WAINWRIGHT, ALASKA, A/SLMR NO. 278 THAT UNDER SECTION 10(E) OF THE ORDER
EMPLOYEES HAVE A CONCOMITANT RIGHT TO CHOSE THE EXCLUSIVE REPRESENTATIVE
AS THEIR REPRESENTATIVE IN "FORMAL DISCUSSIONS." A RIGHT TO A PERSONAL
REPRESENTATIVE IS NOT ESTABLISHED BY OPERATION OF THE ORDER AND
ACCORDINGLY REFUSAL TO ALLOW REPRESENTATION BY A PERSONAL REPRESENTATIVE
IN A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER DOES NOT ESTABLISH A VIOLATION OF SECTION 19(A)(1). /43/
THE MEETING OF MAY 14
THE MEETING OF MAY 14, 1973, BETWEEN MR. WILLIAMS, MRS. KRAVITZ AND
MR. PLOFKER WAS PART OF MR. WILLIAMS INQUIRY INTO THE DETAILS OF MRS.
KRAVITZ'S COMPLAINT AGAINST MR. QUIG REGARDING AN ALLEGATION OF
HARASSMENT BY MR. QUIG. UNDER AGENCY REGULATIONS MRS. KRAVITZ'S
COMPLAINT OF MAY 10 WAS LABELED AN "INFORMAL COMPLAINT" AND UNDER AGENCY
REGULATIONS THE MEETING WAS A STEP IN THE "INFORMAL GRIEVANCE
PROCEDURE." HOWEVER THESE LABELS DO NOT DISPOSE OF THE QUESTION OF
WHETHER A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER WAS INVOLVED HEREIN. RATHER WE MUST LOOK TO THE FACTS AND
CIRCUMSTANCES OF THE MEETING TO SEE WHETHER OR NOT A SECTION 10(E)
DISCUSSION TOOK PLACE ON MAY 14.
I FIND THE MEETING OF MAY 14 WAS A "FORMAL DISCUSSION" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER BOTH AS TO THE FORMALITY OF THE
DISCUSSION AND THE SUBJECT MATTER UNDER CONSIDERATION. THE FORMALITY OF
THE MEETING IS ESTABLISHED IN THAT THE MEETING WAS HELD IN THE OFFICE OF
AND BY THE ACTIVITY'S EXECUTIVE OFFICER, A HIGH MANAGERIAL OFFICER FOR
THE ACTIVITY WHO WAS DIRECTLY RESPONSIBLE TO THE ACTIVITY'S DIRECTOR.
MOREOVER THE MEETING CONCERNED A GRIEVANCE AGAINST ANOTHER HIGH RANKING
MEMBER OF MANAGEMENT.
I ALSO FIND THAT THE MEETING OF MAY 14, 1973, CONCERNED SUBJECT
MATTERS COGNIZABLE UNDER SECTION 10(E) OF THE ORDER. THUS A GRIEVANCE
HAD BEEN FILED AND THAT GRIEVANCE CONCERNED THE TREATMENT OF AN EMPLOYEE
IN HER MEETINGS WITH A SUPERVISOR. /44/ IN MY VIEW, THIS GRIEVANCE
CONCERNED A MATTER AFFECTING GENERAL WORKING CONDITIONS OF ALL EMPLOYEES
IN THE UNIT SINCE MEETINGS BETWEEN SUPERVISORS AND EMPLOYEES ARE NORMAL
INCIDENTS OF EMPLOYMENT. THE NATURE OF AN EMPLOYEE'S TREATMENT IN SUCH
MEETINGS AND A RESOLUTION OF THE QUESTION OF WHAT CONSTITUTES HARASSMENT
BY A MANAGEMENT OFFICIAL IS A LEGITIMATE CONCERN OF AND HAS A GENERAL
IMPACT ON ALL EMPLOYEES IN THE UNIT. IT IS FREQUENTLY THROUGH THE
RESOLUTION OF GRIEVANCES THAT THE "LAW OF THE SHOP" IS ESTABLISHED AND
THE FUTURE CONDUCT OF MANAGEMENT AND ALL EMPLOYEES IS GUIDED BY SUCH
DECISIONS. THEREFORE THE UNION SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY
TO BE PRESENT DURING THE MEETING AND FULFILL ITS RESPONSIBILITY TO
REPRESENT THE INTEREST OF ALL EMPLOYEES IN THE UNIT. /45/ ACCORDINGLY,
I FIND THAT THE ACTIVITY BY ITS FAILURE TO AFFORD THE UNION AN
OPPORTUNITY TO BE PRESENT AT THE MEETING OF MAY 14, VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER. /46/
AS TO BOTH MEETINGS OF MAY 9 AND MAY 14, THE FACT THAT A UNION
REPRESENTATIVE WAS NOT REQUESTED BY MRS. KRAVITZ IS IMMATERIAL TO A
FINDING OF VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER WITH
REGARD TO THE ACTIVITY'S FAILURE TO AFFORD THE UNION AN OPPORTUNITY TO
ATTEND THE MEETINGS. SECTION 10(E) OF THE ORDER PROVIDES SPECIFICALLY
THAT A LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT SUCH FORMAL DISCUSSIONS. THIS IS A RIGHT GRANTED TO A
LABOR ORGANIZATION UNDER THE ORDER BY VIRTUE OF ITS FUNCTION AS THE
EXCLUSIVE REPRESENTATIVE OF ALL UNIT EMPLOYEES AND DOES NOT DEPEND UPON
A PARTICULAR EMPLOYEE REQUESTING ITS PRESENCE AT SUCH A MEETING.
SINCE THE UNION WAS NOT ACCORDED AN OPPORTUNITY TO BE PRESENT AT THE
MEETINGS OF MAY 9 AND 14, 1973, IT IS IMPOSSIBLE TO ASCERTAIN WHAT
AFFECT THE UNION'S PRESENCE MIGHT HAVE HAD ON BOTH MR. QUIG'S DECISION
TO ISSUE THE LETTER OF REPRIMAND TO MRS. KRAVITZ AND MR. WILLIAMS'
REPORT OF MAY 18, 1973. IT IS ALSO IMPOSSIBLE UNDER SUCH CIRCUMSTANCES
TO ASCERTAIN WHAT RIGHTS OF UNIT EMPLOYEES MIGHT HAVE BEEN AFFECTED BY
THE ACTIVITY'S CONDUCTING SUCH MEETINGS IN DEROGATION OF THE UNION'S
REPRESENTATIONAL RIGHTS. MOREOVER, THE RESTRAINING AND COERCIVE EFFECTS
SUCH CONDUCT HAS ON UNIT EMPLOYEES CAN BEST BE DISSIPATED BY
DEMONSTRATING TO THE EMPLOYEES THAT SUCH PAST CONDUCT IN DEROGATION OF
THE UNION'S RIGHTS OF REPRESENTATION WILL NOT BE ALLOWED TO REMAIN
UNREMEDIED. ACCORDINGLY I SHALL RECOMMEND THAT, UPON REQUEST OF THE
UNION, MRS. KRAVITZ'S LETTER OF REPRIMAND AND MR. WILLIAMS' RESPONSE TO
HER GRIEVANCE BE RECINDED. IF THE ACTIVITY WISHES TO PURSUE THESE
MATTERS FURTHER THEY MAY PROCEED IN ACCORDANCE WITH THE DICTATES OF THE
ORDER.
HAVING FOUND THAT RESPONDENT IN CASE NOS. 32-3297 (CA) AND 32-3300
(CA) HAS ENGAGED IN CERTAIN CONDUCT PROHIBITED BY SECTION 19(A)(1) AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT THE ASSISTANT
SECRETARY ADOPT THE ORDER AS HEREINAFTER SET FORTH WHICH IS DESIGN TO
EFFECTUATE THE POLICIES OF THE ORDER. I ALSO RECOMMEND THAT THE SECTION
19(A)(5) ALLEGATION AND THE INDEPENDENT SECTION 19(A)(1) ALLEGATION, AS
HEREINBEFORE SET FORTH, BE DISMISSED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE FEDERAL AVIATION
ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY SHALL:
1. CEASE AND DESIST FROM:
(A) CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE
REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT WITHOUT
GIVING LOCAL 1340,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE
OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY ITS CHOSEN
REPRESENTATIVE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE EXECUTIVE ORDER:
(A) NOTIFY LOCAL 1340, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OF
AND GIVE IT THE
OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OF OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT.
(B) UPON REQUEST OF LOCAL 1340, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, RESCIND THE
LETTER OF REPRIMAND GIVEN TO MRS. DOROTHY KRAVITZ ON MAY 10, 1973,
AND EXECUTIVE OFFICER
HAROLD WILLIAMS' REPORT OF MAY 18, 1973.
(C) POST AT ITS FACILITY AT FEDERAL AVIATION ADMINISTRATION, NATIONAL
AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, COPIES OF THE
ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR, FEDERAL AVIATION
ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER,
ATLANTIC CITY, NEW JERSEY,
AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY
POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN
WRITING WITHIN 20 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY
HEREWITH.
DATED: JUNE 13, 1974
WASHINGTON, D.C.
WE WILL NOT CONDUCT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND
EMPLOYEES OR EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL
POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS CONCERNING EMPLOYEES IN THE UNIT WITHOUT GIVING LOCAL 1340,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE OPPORTUNITY TO BE REPRESENTED AT SUCH DISCUSSIONS BY
ITS OWN CHOSEN REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL, UPON REQUEST OF LOCAL 1340, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, RESCIND THE LETTER OF REPRIMAND GIVEN TO MRS. DOROTHY KRAVITZ
ON MAY 10, 1973, AND EXECUTIVE OFFICER HAROLD WILLIAMS' REPORT OF MAY
18, 1973.
DATED . . . BY . . .
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, UNITED STATES
DEPARTMENT OF LABOR, WHOSE ADDRESS IS ROOM 3515, 1515 BROADWAY, NEW
YORK, NEW YORK 10036.
/1/ DURING THE HEARING THE PARTIES INDICATED THEIR DESIRE TO HAVE
SEPARATE DECISIONS ISSUE ON A NUMBER OF THE COMPLAINTS WHICH ARE THE
SUBJECT MATTER OF THIS PROCEEDING. HOWEVER, IN OFFICE OF ECONOMIC
OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 334, WHICH ISSUED
ON DECEMBER 4, 1973, THE ASSISTANT SECRETARY HELD, IN SIMILAR
CIRCUMSTANCES, THAT AN ADMINISTRATIVE LAW JUDGE DOES NOT POSSESS THE
AUTHORITY TO SEVER CASES WHICH PREVIOUSLY HAD BEEN CONSOLIDATED FOR
HEARING. ACCORDINGLY, SINCE IT WOULD BE IMPROPER TO SEVER THE CASES BY
ISSUING SEPARATE REPORTS, I SHALL ISSUE ONE REPORT WHICH SHALL ENCOMPASS
THE ALLEGATIONS OF ALL THE ABOVE CAPTIONED COMPLAINTS.
/2/ JOINT EXHIBIT NO. 1.
/3/ HEREAFTER REFERRED TO AS THE PLAN.
/4/ NEW MEXICO AIR NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS,
OFFICE OF THE ADJUTANT GENERAL, SANTA FE, NEW MEXICO, A/SLMR NO. 362,
AND CASES CITED THEREIN INCLUDING FEDERAL AVIATION ADMINISTRATION,
NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW
JERSEY, A/SLMR NO. 329.
/5/ UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY,
NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS, TENN., A/SLMR NO. 106.
/6/ ID.
/7/ CF. U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE, A/SLMR
NO. 261.
/8/ THE PARTIES DO NOT HAVE A COLLECTIVE BARGAINING AGREEMENT
COVERING THE EMPLOYEES IN THIS UNIT.
/9/ NO EVIDENCE WAS PRESENTED RELATIVE TO NOTICE OF OR ATTENDANCE AT
THE NEXT TWO MEETINGS OTHER THAN THAT THE MEETINGS TOOK PLACE AND WERE
VOLUNTARY IN NATURE.
/10/ SECTION 10(E) PROVIDES IN RELEVANT PART: "THE LABOR
ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE REPRESENTATIVES
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF THE EMPLOYEES IN THE
UNIT."
/11/ CF. AIR TRAFFIC CONTROL, FEDERAL AVIATION ADMINISTRATION,
ANCHORAGE, ALASKA, A/SLMR NO. 379.
/12/ NO EVIDENCE WAS ADDUCED AT THE HEARING TO INDICATE THAT THE
ACTIVITY'S FAILURE TO NOTIFY MRS. BRADBURY OF THE MEETING AS A UNION
REPRESENTATIVE WAS FOR THE PURPOSE OF DEMEANING THE UNION IN THE EYES OF
THE UNIT EMPLOYEES.
/13/ AT ALL TIMES MATERIAL HERETO THE UNION WAS EXCLUSIVE COLLECTIVE
BARGAINING REPRESENTATIVE FOR A UNIT OF ACTIVITY'S SIMULATOR OPERATORS.
MRS. JONES IS A MEMBER OF THAT UNIT.
/14/ THE PROJECT EVALUATION REPORT (RESPONDENT EXHIBIT NO. 1)
INDICATES THAT THERE ARE FOUR CATEGORIES OF RATINGS: "NEEDS TO IMPROVE
TO MEET REQUIREMENTS;" "MEETS REQUIREMENTS;" "EXCEEDS REQUIREMENTS;" AND
"FAR EXCEEDS REQUIREMENTS."
/15/ MRS. JONES WAS CONCERNED ABOUT HER PERFORMANCE RATING SINCE SHE
FELT THAT THESE RATINGS WOULD ULTIMATELY BE CONSIDERED ON QUESTIONS OF
PROMOTION.
/16/ DORIS W. CANADA IS THE SIMULATOR OPERATIONS SUPERVISOR AND
ALTHOUGH SHE SIGNS THE EVALUATION OF EMPLOYEES UNDER HER GENERAL
SUPERVISION, SHE PLAYS NO PART IN THE ACTUAL RATING OF THESE EMPLOYEES.
IT IS NOT ALLEGED AND I DO NOT FIND THAT THE MEETING OF AUGUST 16
BETWEEN MRS. JONES AND HER SUPERVISOR MRS. DILKS, INDEPENDENTLY
CONSTITUTED A "FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 10(E) OF
THE ORDER. NOR DO I FIND THAT THIS MEETING, WHEN CONSIDERED IN
CONJUNCTION WITH THE OTHER MEETINGS DISCUSSED HEREIN, CONSTITUTED A
"FORMAL DISCUSSION" WITHIN THE MEANING OF THE ORDER.
/17/ U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITIES, FORT JACKSON, SOUTH CAROLINA, A/SLMR
NO. 242, AND U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL,
FORT WAINWRIGHT, ALASKA, A/SLMR NO. 278.
/18/ IN MY VIEW IT IS UNNECESSARY TO RESOLVE THE QUESTION OF WHETHER
A "FORMAL DISCUSSION" RELATING TO AN AGENCY'S EVALUATION OF AN
EMPLOYEE'S WORK PERFORMANCE IS A MATTER AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES OF THE UNIT. WHILE IT IS ARGUABLE THAT A
"FORMAL DISCUSSION" ON AN EMPLOYEES EVALUATION HAS NO WIDER RAMIFICATION
THAN A RESOLUTION OF A DISPUTE BETWEEN THE EMPLOYEE AND THE ACTIVITY
(CF. DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL
GUARD, A/SLMR NO. 336) IT IS ALSO ARGUABLE THAT THE AGENCY'S EVALUATION
OF AN INDIVIDUAL'S WORK PERFORMANCE AND THE STANDARDS USED AFFECT OTHER
EMPLOYEES SINCE THOSE STANDARDS ARE GENERALLY UNIFORMALLY APPLICABLE TO
ALL SIMILAR EMPLOYEES. THUS A MISUSE OR MISAPPLICATION OF A STANDARD
MAY WELL OPERATE TO THE DETRIMENT OF UNIT EMPLOYEES GENERALLY SINCE AN
ADVANTAGE OR DISADVANTAGE GIVEN TO ONE EMPLOYEE IN AN EVALUATION COULD
WELL RESULT IN A CORRESPONDING DISADVANTAGE OR ADVANTAGE TO ANOTHER
EMPLOYEE OR EMPLOYEES IN THE UNIT. EVALUATIONS ARE USED IN APPRAISING
PROMOTION POTENTIAL AND THEN RELATIVE CAPABILITIES OF EMPLOYEES AND IN
THIS SENSE EMPLOYEES ARE IN COMPETITION WITH ONE ANOTHER. THEREFORE AN
EMPLOYEE'S EVALUATION INHERENTLY HAS A POTENTIAL TO AFFECT THE
PROMOTIONAL POSSIBILITIES OF OTHER EMPLOYEES WHICH, IT COULD BE ARGUED,
CONSTITUTES A GENERAL WORKING CONDITION OF EMPLOYEES IN THE UNIT.
HOWEVER AS STATED ABOVE, THIS QUESTION NEED NOT BE RESOLVED TO MEET THE
ISSUES HEREIN AND ACCORDINGLY I SPECIFICALLY MAKE NO FINDINGS IN THIS
REGARD.
/19/ CF. U.S. DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS,
INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO, A/SLMR NO. 341.
/20/ U.S. ARMY HEADQUARTERS ETC., (FORT JACKSON), SUPRA AND U.S.
DEPARTMENT OF THE ARMY ETC., (FORT WAINWRIGHT) SUPRA.
/21/ VETERANS ADMINISTRATION, VETERANS ADMINISTRATION CENTER,
HAMPTON, VIRGINIA, A/SLMR NO. 385, AND UNITED STATES ARMY
SCHOOL/TRAINING CENTER, FORT MCCLELLAN, ALABAMA, A/SLMR NO. 42.
/22/ U.S. DEPARTMENT OF THE ARMY ETC., (FORT WAINWRIGHT) SUPRA.
/23/ U.S. DEPARTMENT OF ARMY, ETC., (FORT WAINWRIGHT), SUPRA.
/24/ SEE GENERALLY U.S. DEPARTMENT OF THE ARMY, ETC., (FORT
WAINWRIGHT) SUPRA. IN THAT CASE, WHEN CONSIDERING AN ACTIVITY'S DENIAL
OF AN EMPLOYEES REQUEST TO BE REPRESENTED IN A FORMAL DISCUSSION, THE
ASSISTANT SECRETARY HELD THAT SECTION 7(D) OF THE ORDER DOES NOT
ESTABLISH ANY RIGHTS FOR EMPLOYEES ENFORCEABLE UNDER SECTION 19 OF THE
ORDER.
/25/ THIS IS NOT TO SAY, HOWEVER, SUCH AN OBLIGATION MIGHT NOT ARISE
IN ANOTHER CASE DUE TO THE PARTICULAR FACTS AND CIRCUMSTANCES OF THAT
CASE. HOWEVER, I DO NOT FIND THAT THE FACTS OF THIS CASE SUPPORT SUCH A
FINDING.
/26/ AT NO TIME MATERIAL HERETO DID THE UNION AND THE ACTIVITY HAVE A
COLLECTIVE BARGAINING AGREEMENT FOR THIS UNIT OF EMPLOYEES.
/27/ COMPLAINANT EXHIBIT NO. 6.
/28/ COMPLAINANT EXHIBIT NO. 2.
/29/ THERE ARE THREE LEVELS OF SUPERVISION BETWEEN MR. QUIG AND MRS.
KRAVITZ. THE INTERMEDIATE SUPERVISORS INCLUDE UNITE CHIEF, SECTION
CHIEF, AND BRANCH CHIEF.
/30/ THE BASIS FOR THE LETTER OF REPRIMAND CONSISTED OF MRS. KRAVITZ
BEING ARRESTED AND CONVICTED ON A DISORDERLY PERSON'S CHARGE AND BEING
FINED $25.00.
/31/ THE PRIOR LETTER OF REPRIMAND OF APRIL 25, 1973, MERELY
INDICATED THAT MRS. KRAVITZ WAS BEING REPRIMANDED "FOR MISCONDUCT WHICH
IS CONSIDERED TO BE PREJUDICIAL TO THE GOVERNMENT."
/32/ COMPLAINANT EXHIBIT NO. 4.
/33/ MR. MASSIMINO TESTIFIED THAT WHILE IT WAS POSSIBLE THAT MR.
PLOFKER OR MRS. KRAVITZ MAY HAVE INFORMED HIM OF THE MAY 14 MEETING
PRIOR THERETO, HE DID NOT RECALL RECEIVING ANY SUCH INFORMATION. THERE
IS NO EVIDENCE THAT EITHER MRS. KRAVITZ OR MR. PLOFKER NOTIFIED MR.
MASSIMINO OF THE SCHEDULED MEETING AT ANY TIME BEFOREHAND. ACCORDINGLY
I FIND THAT THE UNION RECEIVED NO NOTIFICATION OF THE PENDING MEETING
PRIOR TO THE ACTUAL CONDUCT OF THE MEETING ON MAY 14, 1973.
/34/ MR. WILLIAMS TESTIFIED THAT ALTHOUGH HE TALKED TO MR. QUIG PRIOR
TO THE MAY 14 MEETING AND INDICATED THAT HE HAD THE COMPLAINT, HE DID
NOT DISCUSS THE MATTER WITH MR. QUIG IN ANY DETAIL UNTIL MAY 15.
/35/ RESPONDENT EXHIBIT NO. 3.
/36/ COMPLAINANT EXHIBIT NO. 6.
/37/ COMPLAINANT EXHIBIT NO. 2.
/38/ COMPLAINANT EXHIBIT NO. 4.
/39/ COMPLAINANT EXHIBIT NO. 8.
/40/ COMPLAINANT EXHIBIT NO. 1.
/41/ THE RELEVANT PORTION OF SECTION 10(E) OF THE ORDER PROVIDES:
"THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED
AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICES AND PRACTICES
OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN
THE UNIT."
/42/ I DO NOT FIND THE FACT THAT AN EMPLOYEE MAY APPEAL A LETTER OF
REPRIMAND TO BE CONTROLLING. IN SUCH SUBSEQUENT PROCEEDINGS THE
EMPLOYEE MAY NOT REMEMBER WHAT TRANSPIRED DURING THE MEETING AND INDEED
MAY NOT CONSIDER CERTAIN TOPICS WHICH WERE DISCUSSED TO BE PARTICULARLY
RELEVANT WHEN SUCH MATTERS WOULD BE IMMEDIATELY RECOGNIZED BY THE UNION
AS BEING DETRIMENTAL TO THE UNIT AS A WHOLE.
/43/ CF. OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS,
A/SLMR NO. 344.
/44/ COMPARE DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, A/SLMR NO. 336.
/45/ U.S. DEPARTMENT OF THE ARMY, ETC., (FORT WAINWRIGHT), SUPRA.
/46/ FOR THE REASONS STATED ABOVE, I RECOMMEND THAT THE 19(A)(5)
ALLEGATION BE DISMISSED.
4 A/SLMR 437; P. 636; CASE NO. 72-4190; SEPTEMBER 30, 1974.
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE, CALIFORNIA
A/SLMR NO. 437
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001 (COMPLAINANT),
ALLEGING THAT THE ARMY AND AIR FORCE EXCHANGE SERVICE, VANDENBERG AIR
FORCE BASE, CALIFORNIA (RESPONDENT) VIOLATED SECTION 19(A)(1) AND (2) OF
THE ORDER BY ITS TREATMENT OF A UNIT EMPLOYEE WHO ALSO WAS A UNION
REPRESENTATIVE. THE COMPLAINANT CONTENDED THAT THE ALLEGED
DISCRIMINATEE WAS "BERATED," ASSIGNED "MENIAL" DUTIES, AND HER SCHEDULE
WAS CHANGED BY HER SUPERVISOR BECAUSE OF HER ACTIVITIES AS A UNION
REPRESENTATIVE. IN ADDITION, THE COMPLAINANT ALLEGED THAT THE
RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY ITS
UNRESPONSIVENESS IN RESOLVING THE DISPUTE HEREIN. THE RESPONDENT DENIED
THAT IT "BERATED" THE EMPLOYEE INVOLVED, OR THAT IT ASSIGNED HER DUTIES
OTHER THAN THOSE IN HER JOB DESCRIPTION. THE RESPONDENT ALSO CLAIMED
THAT THE SCHEDULE CHANGE WAS NOT DISCRIMINATORY IN THAT IT INVOLVED
OTHER EMPLOYEES, WAS IN RESPONSE TO BUSINESS DEMANDS, AND THAT THERE WAS
NO MERIT TO THE 19(A)(6) ALLEGATION.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE SECTION 19(A)(6)
ALLEGATION BE DISMISSED; HOWEVER, HE CONCLUDED THAT THE RESPONDENT'S
CONDUCT CONSTITUTED A VIOLATION OF SECTION 19(A)(1) AND (2) OF THE
ORDER.
THE ASSISTANT SECRETARY REJECTED THE ADMINISTRATIVE LAW JUDGE'S
FINDING OF A 19(A)(2) VIOLATION WITH REGARD TO THE SCHEDULE CHANGE.
THUS, HE FOUND THAT THE EVIDENCE DID NOT ESTABLISH THAT THE SCHEDULE
CHANGE WAS DISCRIMINATORY IN NATURE OR THAT IT WAS INTENDED TO
DISCOURAGE THE EMPLOYEE INVOLVED IN THE EXERCISE OF HER UNION
ACTIVITIES. THE ASSISTANT SECRETARY ALSO REJECTED THE ADMINISTRATIVE
LAW JUDGE'S FINDING THAT THERE WAS A 19(A)(2) VIOLATION REGARDING THE
THREATENED ASSIGNMENT OF ADDITIONAL DUTIES BECAUSE THERE WAS NO EVIDENCE
THAT THE ALLEGED DISCRIMINATEE ACTUALLY WAS ASSIGNED ANY OF THESE
DUTIES.
HOWEVER, THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT VIOLATED SECTION 19(A)(1)
OF THE ORDER WITH RESPECT TO THE THREATENED ASSIGNMENT OF ADDITIONAL
DUTIES AND THE ANNOUNCEMENT OF A SCHEDULE CHANGE, AS SUCH CONDUCT WAS IN
RETALIATION FOR THE EMPLOYEE INVOLVED HAVING ENGAGED IN UNION
ACTIVITIES. AS TO THE ANNOUNCEMENT OF THE SCHEDULE CHANGE BY HER
IMMEDIATE SUPERVISOR, HE NOTED THAT SUCH ACTION WAS INTENDED TO BE
PERCEIVED AS BEING THE IMMEDIATE SUPERVISOR'S RETALIATION FOR THE
EMPLOYEE'S ENGAGING IN UNION ACTIVITIES.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT
CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND HE
FURTHER ORDERED THAT THE COMPLAINT BE DISMISSED INSOFAR AS IT ALLEGED
VIOLATIONS OF SECTION 19(A)(2) AND (6).
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001
ON MAY 21, 1974, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT, ARMY AND AIR FORCE EXCHANGE SERVICE, VANDENBERG AIR
FORCE BASE, CALIFORNIA, HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES
AND RECOMMENDING THAT IT TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION. THE
ADMINISTRATIVE LAW JUDGE FOUND OTHER ALLEGED CONDUCT OF THE RESPONDENT
NOT TO BE VIOLATIVE OF THE ORDER. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS AND A SUPPORTING BRIEF WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION. /1/
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE FINDINGS /2/ , CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE
LAW JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT IN THE INSTANT CASE ALLEGED ESSENTIALLY THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BY ITS
TREATMENT OF A UNIT EMPLOYEE, MRS. SHIRLEY BEARD, WHO ALSO WAS A UNION
REPRESENTATIVE. IN THIS REGARD, THE COMPLAINANT CHARGED THAT MRS. BEARD
WAS "BERATED," ASSIGNED "MENIAL" DUTIES, AND HER SCHEDULE WAS CHANGED BY
HER SUPERVISOR, MR. ROBERT DUPUIS, BASED ON HER ACTIVITIES AS A UNION
REPRESENTATIVE. IN ADDITION, IT IS ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(6) OF THE ORDER BY ITS UNRESPONSIVENESS IN RESOLVING THE
DISPUTE HEREIN.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE SECTION 19(A)(6)
ALLEGATION BE DISMISSED; HOWEVER, HE CONCLUDED THAT THE RESPONDENT'S
CONDUCT IN THIS MATTER CONSTITUTED A VIOLATION OF SECTION 19(A)(1) AND
(2) OF THE ORDER.
THE EVIDENCE ESTABLISHED THAT ON FEBRUARY 15, 1973, MRS. BEARD, AS AN
APPOINTED REPRESENTATIVE OF THE COMPLAINANT, ATTENDED A MEETING BETWEEN
THE COMPLAINANT, THE RECENTLY CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE
RESPONDENT'S EMPLOYEES, AND THE RESPONDENT. PRIOR TO THAT MEETING ON
FEBRUARY 9, BEARD HAD BEEN TOLD BY HER SUPERVISOR THAT SHE WOULD NOT BE
AFFECTED BY A PLANNED REVISION OF WORK SCHEDULES SO THAT AS A UNION
STEWARD SHE COULD HAVE CONTACT WITH OTHER PEOPLE. AT THE CONCLUSION OF
THE MEETING ON FEBRUARY 15, BEARD RAISED, ON BEHALF OF HERSELF AND OTHER
EMPLOYEES OF THE "DISCOUNT SELF-SERVICE ISLAND," A PROBLEM REGARDING THE
SCHEDULING OF BREAK TIME. SHE WAS ADVISED BY THE GENERAL MANAGER OF THE
BASE EXCHANGE THAT HE WOULD CALL HER SUPERVISOR, DUPUIS, AND THAT SHE
SHOULD RETURN AND SPEAK TO DUPUIS ABOUT THE PROBLEM HERSELF. DUPUIS
ADMITS HAVING BEEN CALLED AND REPRIMANDED REGARDING THE BREAK PROBLEM BY
THE GENERAL MANAGER. ACCORDING TO BEARD'S TESTIMONY, WHICH WAS CREDITED
BY THE ADMINISTRATIVE LAW JUDGE, DUPUIS BECAME VERY ANGRY WITH BEARD
AFTER HE HAD RECEIVED THE REPRIMAND FROM THE GENERAL MANAGER. ALONG
WITH THREATENING THE ASSIGNMENT OF MORE "MAKE WORK" IN ADDITION TO HER
REGULAR DUTIES, DUPUIS STATED TO BEARD, "WELL, YOU WON THE FIRST GOD
DAMN ROUND, BUT I WON ROUND TWO." IN ADDITION, THE CREDITED TESTIMONY
ESTABLISHED THAT DUPUIS THEN TURNED TO HIS ASSISTANT AND TOLD HIM THAT
BEARD'S SCHEDULE WOULD BE CHANGED.
CONTRARY TO THE FINDING OF THE ADMINISTRATIVE LAW JUDGE, IN MY VIEW
THE EVIDENCE DOES NOT SUPPORT A FINDING OF A VIOLATION OF SECTION
19(A)(2) WITH REGARD TO THE SCHEDULE CHANGE. THUS, THE EVIDENCE
ESTABLISHES THAT SOMETIME PRIOR TO THE ABOVE-NOTED INCIDENTS OF FEBRUARY
15, 1973, MR. ZIELINSKI, THE SERVICE OPERATIONS MANAGER OF THE BASE
EXCHANGE, WHO IS DUPUIS' IMMEDIATE SUPERVISOR, ACTUALLY MADE AND
FORWARDED TO DUPUIS A SCHEDULE CHANGE INVOLVING BEARD AND OTHER
EMPLOYEES. ALTHOUGH THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THIS
SCHEDULE WAS NOT FINAL AND IRREVOCABLE, THE EVIDENCE DOES NOT ESTABLISH
THAT DUPUIS HAD THE AUTHORITY TO MAKE FINAL CHANGES IN THE SCHEDULE, OR
THAT HE DID, IN FACT, RECOMMEND OR PROPOSE ANY CHANGES TO ZIELINSKI.
FURTHERMORE, WHETHER OR NOT THE SCHEDULE PREPARED BY ZIELINSKI WAS
CONSIDERED AS FINAL OR MERELY AS A PROPOSAL, THE RECORD DOES NOT REFLECT
THAT THE SCHEDULE SENT TO DUPUIS BY ZIELINSKI EVER WAS ACTUALLY MODIFIED
ON OR AFTER FEBRUARY 15. UNDER THESE CIRCUMSTANCES, I FIND NO BASIS FOR
THE CONCLUSION THAT THE SCHEDULE CHANGE WAS DISCRIMINATORY IN NATURE AND
WAS INTENDED TO DISCOURAGE BEARD IN THE EXERCISE OF HER UNION ACTIVITIES
AS THE RECORD EVIDENCE IS INSUFFICIENT TO SUPPORT A CONCLUSION THAT THE
SCHEDULE, PREPARED BY ZIELINSKI BEFORE FEBRUARY 15, WAS CHANGED
SUBSEQUENT TO THE EARLIER MEETING WITH RESPONDENT THAT BEARD HAD
ATTENDED ON THAT DATE. ACCORDINGLY, I SHALL DISMISS THE ALLEGATION THAT
THE RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER BASED ON THE
EFFECTUATION OF A CHANGE IN BEARD'S SCHEDULE. /3/
HOWEVER, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT
DUPUIS' CONDUCT IN THREATENING THE ADDITION OF "MAKE WORK" TO BEARD'S
REGULAR DUTIES AND HIS ANNOUNCING OF HER SCHEDULE CHANGE WERE IN
RETALIATION FOR HER ENGAGING IN UNION ACTIVITIES AND, THUS, WERE
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. IN THIS REGARD, THE
CREDITED EVIDENCE, SET FORTH ABOVE, REVEALS THAT ALTHOUGH BEARD'S
SCHEDULE CHANGE WAS MADE BY ZIELINSKI PRIOR TO FEBRUARY 15, 1973, DUPUIS
INTENDED THAT BEARD PERCEIVE IT AS HIS CHANGE AND, THEREFORE, HIS
RETALIATION FOR THE REPRIMAND DUPUIS HAD RECEIVED BECAUSE OF BEARD'S
ACTIVITY AS A UNION REPRESENTATIVE AT THE MEETING OF FEBRUARY 15, 1973,
BETWEEN THE COMPLAINANT AND THE RESPONDENT.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE ARMY AND AIR FORCE
EXCHANGE SERVICE, VANDENBERG AIR FORCE BASE, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
INTERFERING WITH, RESTRAINING, OR COERCING MRS. SHIRLEY BEARD, OR ANY
OTHER EMPLOYEE, IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, BY THREATENING THE ASSIGNMENT OF ADDITIONAL
DUTIES TO REGULAR DUTIES IN RETALIATION FOR ENGAGING IN UNION ACTIVITY
OR BY ANNOUNCING A SCHEDULE CHANGE WITH THE INTENT THAT IT BE PERCEIVED
AS BEING IN RETALIATION FOR ENGAGING IN UNION ACTIVITY.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE PURPOSES
AND PROVISIONS OF THE ORDER:
(A) POST AT ITS FACILITIES AT VANDENBERG AIR FORCE BASE, CALIFORNIA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT
OF SUCH FORMS THEY SHALL BE SIGNED BY THE GENERAL MANAGER OF THE BASE
EXCHANGE AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE GENERAL MANAGER SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
VIOLATIONS OF SECTION 19(A)(2) AND (6) OF THE ORDER BE, AND IT HEREBY
IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ ALTHOUGH THE COMPLAINANT WAS GRANTED ADDITIONAL TIME UNDER
SECTION 203.24(B) OF THE ASSISTANT SECRETARY'S REGULATIONS, IN WHICH TO
FILE AN ANSWERING BRIEF TO THE EXCEPTIONS FILED BY THE RESPONDENT, IT
FAILED TO DO SO.
/2/ WITH RESPECT TO THE ADOPTION OF THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS, SEE NAVY EXCHANGE, U.S. NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND, A/SLMR NO. 180.
/3/ AS THERE WAS NO EVIDENCE ADDUCED THAT MRS. BEARD ACTUALLY WAS
ASSIGNED ANY OF THE THREATENED ADDITIONAL DUTIES, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, I FIND NO BASIS FOR CONCLUDING THAT THE
RESPONDENT VIOLATED SECTION 19(A)(2) OF THE ORDER IN THIS REGARD.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE MRS. SHIRLEY BEARD OR
ANY OTHER EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED, BY THREATENING THE ASSIGNMENT OF ADDITIONAL
DUTIES TO REGULAR DUTIES IN RETALIATION FOR ENGAGING IN UNION ACTIVITY,
OR BY ANNOUNCING A SCHEDULE CHANGE WITH THE INTENT THAT IT BE PERCEIVED
AS BEING IN RETALIATION FOR ENGAGING IN UNION 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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 9061, FEDERAL BUILDING, 450 GOLDEN GATE
AVENUE, BOX 36017, SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001
ROBERT E. EDWARDS, ASSISTANT GENERAL
COUNSEL, LABOR RELATIONS LAW BRANCH,
ARMY AND AIR FORCE EXCHANGE SERVICE
DALLAS, TEXAS 75222
HOMER R. HOISINGTON, REGIONAL BUSINESS
AGENT, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, P.O. BOX 870
RIALTO, CALIFORNIA 92376
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED, WAS
INITIATED BY THE FILING OF A COMPLAINT BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1001 (HEREINAFTER REFERRED TO AS THE
COMPLAINANT OR THE UNION) AGAINST THE ARMY AND AIR FORCE EXCHANGE
SERVICE AT VANDENBERG AIR FORCE BASE, CALIFORNIA (HEREINAFTER REFERRED
TO AS THE ACTIVITY) ON MAY 8, 1973. THE COMPLAINT CHARGES THAT THE
ACTIVITY VIOLATED SECTIONS 19(A)(1), (2), AND (6) OF THE ORDER BY ITS
TREATMENT OF MRS. SHIRLEY BEARD, ACTIVITY EMPLOYEE AND UNION
REPRESENTATIVE.
A HEARING ON THE COMPLAINT WAS HELD BEFORE ME ON OCTOBER 31, 1973.
BOTH PARTIES WERE PRESENT AND REPRESENTED AND WERE AFFORDED FULL
OPPORTUNITY TO CALL AND EXAMINE WITNESSES AND TO ADDUCE RELEVANT
EVIDENCE. BRIEFS FILED BY BOTH PARTIES HAVE BEEN CAREFULLY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE AND MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS:
THE UNION COMPLAINS THAT SUPERVISOR DUPUIS "BERATED" MRS. BEARD,
ASSIGNED HER TO "MENIAL" DUTIES AND LATER CHANGED HER WORK SCHEDULE, ALL
BECAUSE SHE WAS APPOINTED AS STEWARD AND ACTED AS EMPLOYEE
REPRESENTATIVE IN A MEETING WHICH TOOK PLACE ON 15 FEBRUARY 1973.
FURTHER, THE UNION CLAIMS THAT MANAGEMENT WAS SO UNRESPONSIVE TO ITS
DEMANDS TO DISCUSS THE BEARD INCIDENT THAT IT SHOULD BE HELD IN
VIOLATION OF SECTION 19(A)(6) OF THE ORDER. AS A RESULT, THE UNION
CONTENDS THAT THE ACTIVITY SHOULD BE FOUND GUILTY OF AN UNFAIR LABOR
PRACTICE AND BE ORDERED TO FORMALLY NOTIFY THE EMPLOYEES OF MRS. BEARD'S
APPOINTMENT AND THAT IN THE FUTURE SHE WOULD REPRESENT UNIT EMPLOYEES IN
THE SERVICE STATION.
THE ACTIVITY GENERALLY DENIES ALL CHARGES AND SPECIFICALLY DENIES
THAT ANY OF ITS SUPERVISORS ENGAGED IN ANY BEHAVIOR THAT COULD BE
CHARACTERIZED AS "BERATING" OR THAT ANY TASKS, OTHER THAN THOSE
CONTAINED IN HER JOB DESCRIPTION, WERE ASSIGNED TO MRS. BEARD.
ACCORDING TO THE ACTIVITY, THE NEW SCHEDULE, WHICH ALTERED THE SCHEDULE
OF SEVERAL EMPLOYEES OTHER THAN MRS. BEARD, WAS PREPARED IN RESPONSE TO
THE BUSINESS DEMANDS OF THE SERVICE STATION OPERATION; WAS BASED ON
LEGITIMATE MANAGEMENT NEEDS; AND WAS PREPARED FAR IN ADVANCE OF THE 15
FEBRUARY MEETING WHEN MRS. BEARD WAS APPOINTED AS A STEWARD. THE
ACTIVITY FURTHER CONTENDS THAT THE UNION'S CHARGE THAT IT FAILED TO MEET
AND DISCUSS THE BEARD CASE AS REQUIRED BY SECTION 19(A)(6) IS TOTALLY
LACKING IN MERIT.
1. THE PARTIES STIPULATED THAT THE ACTIVITY IS A COMPONENT OF A
NONAPPROPRIATED FUND INSTRUMENTALITY OF THE UNITED STATES GOVERNMENT
PERFORMING BASICALLY AS A RETAIL ORGANIZATION AT THE VANDENBERG AIR
FORCE BASE, CALIFORNIA. AS PART OF ITS OPERATIONS THE ACTIVITY OPERATES
TWO SERVICE STATIONS ON THE FACILITY.
2. ON JANUARY 26, 1972, THE UNION PETITIONED THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION OF THE U.S. DEPARTMENT OF LABOR TO BE ALLOWED TO
REPRESENT THE HOURLY EMPLOYEES OF THE ACTIVITY.
3. ON JANUARY 19, 1973, AFTER AN ELECTION WAS CONDUCTED AMONG UNIT
EMPLOYEES, THE UNION WAS DULY CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE.
4. MRS. SHIRLEY BEARD, WHO PLAYS A CENTRAL ROLE IN THIS MATTER, WAS
EMPLOYED ON JULY 24, 1971, AS A SERVICE STATION ATTENDANT, GRADE 1, AT
ONE OF THE STATIONS RUN BY THE ACTIVITY. SHE REMAINED IN THAT POSITION
UNTIL JULY 28, 1973, AT WHICH TIME SHE WAS PROMOTED TO CASHIER-CHECKER,
GRADE 2.
5. ON FRIDAY, FEBRUARY 9, MRS. BEARD HAD A CONVERSATION WITH HER
SUPERVISOR, ROBERT DUPUIS, IN WHICH HE TOLD HER THAT SHE WOULD NOT BE
AFFECTED BY A PLANNED REVISION OF WORK SCHEDULES AND THAT HER HOURS
WOULD REMAIN THE SAME SO THAT, AS UNION STEWARD, SHE COULD HAVE CONTACT
WITH OTHER PEOPLE. THEY DISCUSSED THE DUTIES OF A UNION STEWARD AND HE
ASKED HER IF SHE WOULD COME TO HIM FIRST WITH EMPLOYEE PROBLEMS, INSTEAD
OF GOING TO THE UNION, AND SHE AGREED. AS OF THIS DATE, BEARD WAS ONLY
RUMORED TO BECOME A STEWARD AND HAD NOT BEEN OFFICIALLY DESIGNATED.
6. MARIE C. BROGAN, PRESIDENT OF THE UNION, TESTIFIED THAT SOON
AFTER THE ORGANIZATION WAS CERTIFIED SHE CONTACTED THOMAS W. JOHNSON,
GENERAL MANAGER OF THE BASE EXCHANGE, AND MRS. STORDAHL, PERSONNEL
OFFICER OF THE EXCHANGE, REGARDING THE SCHEDULING OF CONSULTATION
MEETINGS. IT WAS AGREED THAT REGULAR MEETINGS WOULD BE HELD THE SECOND
TUESDAY OF EACH MONTH. BROGAN SUBMITTED TO JOHNSON A LIST OF FOUR
EMPLOYEES DESIGNATED TO REPRESENT THE UNION AT THESE MEETINGS UNTIL
STEWARDS WERE SELECTED FOR THAT PURPOSE. AMONG THE FOUR INDIVIDUALS SO
DESIGNATED WAS SHIRLEY BEARD
7. THE INITIAL MEETING WAS SET FOR FEBRUARY 13, 1973. ON FEBRUARY
5, 1973, BROGAN SUBMITTED TO JOHNSON AN AGENDA OF TOPICS FOR DISCUSSION
AT THE FIRST MEETING. BECAUSE OF SCHEDULING DIFFICULTIES THE MEETING
WAS RESCHEDULED FOR 1:00 P.M. ON FEBRUARY 15, 1973. JOHNSON UNDERTOOK
TO INFORM THE SUPERVISORS OF DESIGNATED UNION REPRESENTATIVES OF THEIR
PARTICIPATION IN THE CONFERENCE AND TO DIRECT THEIR RELEASE FROM WORK
ASSIGNMENTS FOR THE MEETING. AMONG THOSE NOTIFIED WAS ROBERT DUPUIS,
SUPERVISOR OF THE GAS STATION WHERE SHIRLEY BEARD WORKED. ON THE
MORNING OF FEBRUARY 15, DUPUIS INFORMED BEARD OF THE MEETING.
8. THE MEETING WAS HELD AS SCHEDULED WITH JOHNSON AND STORDAHL
PRESENT FOR MANAGEMENT AND BROGAN AND THE FOUR EMPLOYEE REPRESENTATIVES
PRESENT FOR THE UNION. DISCUSSION CENTERED UPON THE TOPICS LISTED IN
BROGAN'S AGENDA. BEARD WAS SUBSTANTIALLY TARDY FOR THE MEETING BECAUSE
HER SUPERVISOR HAD FAILED TO RELEASE HER IN TIME TO ALLOW HER PROMPT
ATTENDANCE. /1/ ALTHOUGH THE TOPIC WAS NOT ON THE AGENDA, BEARD RAISED
THE SUBJECT OF BREAK TIME AS THE MEETING WAS ABOUT TO CONCLUDE. IT WAS
HER CONTENTION THAT SHE AND OTHER ATTENDANTS AT THE SELF-SERVICE PUMPS
OF THE SERVICE STATION WERE NOT BEING ALLOWED TWO FIFTEEN-MINUTE BREAK
PERIODS DURING THE WORK DAY AS REQUIRED BY THE REGULATIONS. MRS.
BEARD'S COMPLAINT WAS MADE ON BEHALF OF HERSELF AND OTHER EMPLOYEES WHO
WORKED ON THE "DISCOUNT SELF-SERVICE" ISLAND. SHE KNEW OF THEIR
COMPLAINTS BECAUSE SHE HAD DISCUSSED THEM PRIOR TO FEBRUARY 15. THE
EMPLOYEES ON "FULL-SERVICE" WERE NOT COMPLAINING.
BEARD TESTIFIED THAT WHEN SHE WAS FIRST HIRED AT THE SERVICE STATION,
BUSINESS WAS RATHER LIGHT AND THE STATION MANAGER, ROBERT DUPUIS, HAD
INSTRUCTED HER TO USE THE TIME WHEN NO CARS NEEDED ATTENTION AS HER
BREAK OR "GOOF-OFF" TIME. BEARD AGREED TO THIS ARRANGEMENT. WHEN
BUSINESS INCREASED AT THE STATION AND BEARD WAS ASSIGNED TO THE POPULAR
SELF-SERVICE PUMP ISLANDS, IDLE TIME BECAME SCARCE AND BEARD AND
SIMILARLY SITUATED EMPLOYEES FOUND BREAK TIME UNAVAILABLE UNDER DUPUIS'
INFORMAL SYSTEM. SHE EXPLAINED THIS TO JOHNSON AS THE FEBRUARY 15
MEETING WAS TERMINATING. JOHNSON TOLD BEARD THAT SHE SHOULD SPEAK WITH
DUPUIS REGARDING THE PROBLEM AND THAT IN THE EVENT THERE WAS NO
RESOLUTION OF THE PROBLEM AT THE LOWER LEVEL SHE SHOULD RETURN TO SPEAK
WITH HIM. JOHNSON TOLD BEARD THAT HE WOULD CALL DUPUIS TO ALERT HIM
THAT SHE WOULD BE DISCUSSING THE SUBJECT WITH HIM. AFTER THE MEETING
ENDED BEARD AND THE OTHER EMPLOYEE REPRESENTATIVES RETURNED TO THEIR
WORK STATIONS.
9. BEARD TESTIFIED THAT WHEN SHE RETURNED TO THE SERVICE STATION SHE
FOUND DUPUIS ON THE TELEPHONE AND HEARD HIM SAY TO THE PARTY WITH WHOM
HE WAS SPEAKING: "WELL, ALL SHE DOES IS SIT ON HER GOD DAMN ASS
ANYWAY." BEARD PRESUMED THAT JOHNSON WAS ON THE OTHER END OF THE LINE
BUT DUPUIS DID NOT INDICATE WHO IT ACTUALLY WAS. /2/ DUPUIS TOLD BEARD
TO WAIT FOR HIM IN THE OUTER OFFICE AND WHEN HE JOINED HER HE SAID,
ACCORDING TO MRS. BEARD'S ACCOUNT, WHICH I CREDIT, "WELL, YOU WON THE
FIRST GOD DAMN ROUND, BUT I WON ROUND TWO." BEARD TESTIFIED THAT DUPUIS
THEN TURNED TO HIS ASSISTANT, JOSEPH LETOURNEAU, AND SAID, "JOE, HER
SCHEDULE WILL BE CHANGED . . . TO 10:45 TO 7:15." /3/
10. ACCORDING TO BEARD, THIS WAS THE FIRST SHE HAD HEARD OF A CHANGE
IN HER WORK SCHEDULE. /4/ SHE WAS AWARE THAT DUPUIS WAS PREPARING A NEW
SCHEDULE WHICH WOULD CHANGE THE WORK HOURS OF CERTAIN OTHER EMPLOYEES,
BUT TESTIFIED THAT PRIOR TO THE FEBRUARY 15 MEETING DUPUIS HAD ASSURED
HER THAT NO CHANGE WOULD BE MADE IN HER HOURS. IN ADDITION, BEARD
RECALLED HAVING READ EARLIER THAT SAME DAY A DRAFT COPY OF A NEW
SCHEDULE IN WHICH HER WORKING HOURS REMAINED 7:15 A.M. TO 3:45 P.M. IT
IS NOT CLEAR FROM THE RECORD, HOWEVER, WHETHER SHE WAS LOOKING AT A
PROPOSED OR FINAL SCHEDULE.
11. MRS. BEARD ALSO TESTIFIED ABOUT WHAT DUPUIS TOLD HER, AS
FOLLOWS:
HE TOLD ME THAT I WOULD HAVE TO TAKE MY ASS OUT THERE AND CLEAN THE
PUMPS ALL DAY AND THAT
I WOULD KEEP DOING IT, IF I AM NOT DOING ANYTHING, IF I WASN'T BUSY
MAKING CHANGE OR WRITING
CREDIT CARDS, THAT I WOULD SWEEP AND I WOULD WASH THE DAMN PUMPS DOWN
AND I WOULD WASH THE
WINDOWS AND I WOULD SWEEP THE BOOTHS AND I JUST SAT THERE AND LOOKED
AT HIM.
ALTHOUGH THESE FUNCTIONS WERE PART OF HER NORMAL DUTIES, SHE WAS NOT
USUALLY REQUIRED TO BE DOING THEM CONSTANTLY AS A FORM OF "MAKE WORK."
12. DUPUIS DENIED THAT HE EVER EXPLAINED TO BEARD THAT HER SCHEDULE
HAD BEEN DISAPPROVED (TR. 94) BUT ADMITS THAT WITHIN 5 OR 10 MINUTES
AFTER THE DISCUSSION OF THE "BREAK PERIOD" HE HAD A CONVERSATION WITH
HER ABOUT THE NEW SCHEDULE AND SHE STATED SHE DIDN'T LIKE BEING
TRANSFERRED TO THE NIGHT SHIFT (TR. 95). MR. DUPUIS' EXPLANATION (TR.
118, 123, 124) FOR THIS DISCREPANCY IS THAT HE WAS DISCUSSING THE
SUBJECT WITH HIS ASSISTANT, MR. HEARD, AND MRS. BEARD OVERHEARD HIM AND
INQUIRED AS TO WHAT HER HOURS WOULD BE. DUPUIS STATES THAT HE RESPONDED
TO HER QUESTION BY INFORMING HER OF HER NEW SCHEDULE.
13. SUBSEQUENT TO THE FEBRUARY 15 INCIDENT, MRS. BEARD SPOKE WITH
ROBERT HEARD, DUPUIS' SUBORDINATE, ABOUT THE CHANGE IN HER SCHEDULE AND
HE COMMENTED THAT SCHEDULING A WOMAN TO NIGHT HOURS WAS UNFAIR AND THAT
WITH HER NEW HOURS BEARD WOULD NOT BE ABLE TO ATTEND UNION MEETINGS. IN
THE CONTEXT IN WHICH THE STATEMENT WAS MADE, HEARD WAS NOT IN MY OPINION
STATING A REASON WHY BEARD'S HOURS WERE CHANGED BUT, RATHER, WAS ONLY
COMMENTING UPON THE EFFECT OF THIS CHANGE ON HER ABILITY TO ATTEND UNION
MEETINGS AT NIGHT. THE CHANGE IN BEARD'S SCHEDULE NEVER DID HAVE THIS
EFFECT, HOWEVER, AS ARRANGEMENTS WERE MADE FOR HER EARLY RELEASE ON THE
DAYS WHEN UNION MEETINGS WERE HELD.
RESPONDENT'S DEFENSE TO THE ALLEGATION THAT DUPUIS CHANGED BEARD'S
WORK SCHEDULE IN RETALIATION FOR HER ENGAGING IN PROTECTED ACTIVITY IS
THAT HE WAS NOT IN A POSITION TO CHANGE THE SCHEDULE AND THAT, INDEED,
IT HAD ALREADY BEEN CHANGED BY MR. ZIELINSKI, THE SERVICE OPERATIONS
MANAGER, AND DUPUIS' SUPERVISOR. ZIELINSKI TESTIFIED THAT HE HAD
PREVIOUSLY ASKED DUPUIS TO DRAW UP A NEW WORK SCHEDULE TO BETTER
ACCOMMODATE THE CUSTOMER FLOW AT THE STATION THROUGHOUT THE DAY AND TO
AVOID PREMIUM PAY FOR EMPLOYEES REQUIRED IN CERTAIN CIRCUMSTANCES BY
RECENTLY ENACTED LEGISLATION. DUPUIS HAD PREPARED A DRAFT SCHEDULE IN
WHICH BEARD'S HOURS WERE NOT CHANGED AND HAD SUBMITTED IT TO ZIELINSKI
FOR HIS APPROVAL. HOWEVER, ZIELINSKI DID NOT APPROVE DUPUIS' SUBMISSION
AND IN CONJUNCTION WITH MR. HEARD, DUPUIS' ASSISTANT, PREPARED A NEW
SCHEDULE IN WHICH THE HOURS OF MRS. BEARD, AMONG OTHERS, WERE CHANGED.
ZIELINSKI TESTIFIED THAT THE NEW SCHEDULED WAS ARRANGED SOLELY ON THE
BASIS OF MAXIMIZING EMPLOYEE PRESENCE AT PEAK BUSINESS HOURS AND
MINIMIZING PAYROLL EXPENDITURES. ZIELINSKI TESTIFIED THAT HE SENT THE
REVISED SCHEDULE BACK TO DUPUIS IN THE WEEK OF FEBRUARY 15, BUT PRIOR TO
FEBRUARY 15.
SINCE IT IS ADMITTED THAT DUPUIS ORIGINALLY PLANNED NOT TO CHANGE
BEARD'S HOURS, AND THAT THIS WAS CONVEYED TO BEARD BY DUPUIS, THE IMPORT
AND PURPOSE OF ZIELINSKI'S TESTIMONY IS TO PLACE ON HIS SHOULDERS THE
ULTIMATE RESPONSIBILITY FOR MAKING THE CHANGE IN BEARD'S SCHEDULE. MY
IMPRESSION OF ZIELINSKI IS THAT HE WILLINGLY AND HAPPILY ASSUMED THIS
RESPONSIBILITY. THE COMPLAINANT COULD NOT, OF COURSE, INTRODUCE ANY
CONTRARY EVIDENCE. BUT THERE IS ONE CRITICAL ASPECT OF ZIELINSKI'S
TESTIMONY THAT DOES NOT RING TRUE. IF HE HAD THE FINAL AUTHORITY, AS HE
TESTIFIED, TO DETERMINE WHAT THE SCHEDULE WOULD BE, WHY DID HE RETURN IT
TO DUPUIS? WHAT PURPOSE WAS SERVED BY DOING THIS? WHY DIDN'T HE SIMPLY
HAVE IT TYPED IN FINAL FORM IN HIS OFFICE AND DISSEMINATE IT IN
ACCORDANCE WITH APPLICABLE PROCEDURES.
IN THIS REGARD, ZIELINSKI TESTIFIED THAT HE "ASKED MR. HEARD TO TAKE
THAT SCHEDULE OVER TO MR. DUPUIS AND RETURN IT TO ME SO PROPER
NOTIFICATION COULD BE GIVEN." IN ATTEMPTING TO ASCERTAIN WHY THE
SCHEDULE WAS BEING RETURNED TO DUPUIS, THE TESTIMONY OF RESPONDENT'S
WITNESS ROBERT HEARD IS HELPFUL. HEARD TESTIFIED THAT HE BROUGHT BACK
THE SCHEDULE "FOR MR. DUPUIS TO LOOK AT." HEARD TESTIFIED THAT THE COPY
OF THE SCHEDULE WAS IN LONGHAND AND WAS "FOR MR. DUPUIS TO LOOK AT AND
SEE WHAT HE THOUGHT." HEARD CONCEDED THAT DUPUIS COULD MAKE SOME CHANGES
OR SUGGESTIONS IF HE WISHED TO, BUT DID NOT KNOW IF HE DID. HEARD'S
TESTIMONY MAKES A GOOD DEAL OF SENSE. AFTER DUPUIS HAD GONE TO THE
TROUBLE OF SUBMITTING HIS OWN PROPOSED SCHEDULE, COMMON COURTESY WOULD
SEEM TO REQUIRE THAT A NEW AND DRASTICALLY DIFFERENT SCHEDULE SHOULD BE
RETURNED TO HIM AS MANAGER OF THE EMPLOYEES INVOLVED SO THAT HE COULD
APPROVE IT, VETO IT, OR MAKE RECOMMENDATIONS FOR CHANGES, DEPENDING UPON
THE NATURE AND EXTENT OF HIS AUTHORITY. ALSO, THE FACT THAT THE
ZIELINSKI SCHEDULE WAS IN LONGHAND SUGGESTS, TO ME AT LEAST, THAT THIS
WAS NOT NECESSARILY THE FINAL SCHEDULE, AND WAS SUBJECT TO POSSIBLE
CHANGE. FINALLY, I WOULD NOTE THAT HEARD, WHEN ASKED WHETHER HE WAS
AWARE OF ANY OCCASION WHEN BEARD WAS INFORMED OF HER SCHEDULE CHANGE,
RESPONDED AS FOLLOWS, WITH RESPECT TO THE INCIDENT ON FEBRUARY 15: "THE
ONLY ONE I THINK I MIGHT KNOW OF WAS WHEN MR. DUPUIS BROUGHT HIS
PROPOSAL INTO THE OFFICE WHERE MR. LETOURNEAU AND MYSELF WAS." (EMPHASIS
SUPPLIED) MR. HEARD'S USE OF THE WORD "PROPOSAL" IS RATHER STRANGE. ON
THE ONE HAND, IT COULD BE SIMPLY A MISTAKE AS TO THE PROPER TERMINOLOGY
TO BE USED AT THIS STAGE IN THE PROCEEDING. ON THE OTHER HAND, IT
SOUNDED MORE LIKE AN HONEST SLIP OF THE TONGUE DENOTING A MENTAL STATE
OF MIND AND WOULD BE CONSISTENT WITH MY CONCLUSION THAT THE ZIELINSKI
SCHEDULE WAS STILL NOT FINAL AND IRREVOCABLE WHEN IT WAS RETURNED TO
DUPUIS. I FURTHER CONCLUDE THAT DUPUIS HAD AN OPPORTUNITY TO REVISE THE
ZIELINSKI SCHEDULE IF HE WISHED TO OR AT LEAST MAKE SOME RECOMMENDATIONS
CONCERNING CHANGES.
THIS BRINGS ME TO ANOTHER MATTER. WHY DID ZIELINSKI CHANGE BEARD'S
HOURS IN THE FIRST PLACE? HE TESTIFIED THAT THERE WAS "NO REAL
PARTICULAR REASON" WHY BEARD WAS PUT ON THE LATER PART OF THE DAY. HE
TESTIFIED THAT IT "JUST SO HAPPENED THE WAY WE DREW UP THE SCHEDULE MRS.
BEARD CAME OUT TO THAT PARTICULAR SHIFT." ON THE CONTRARY, HOWEVER,
DUPUIS TESTIFIED THAT BEARD WAS INTENTIONALLY PLACED ON THE LATER SHIFT
BECAUSE SHE WAS AN EXPERIENCED EMPLOYEE.
AS PREVIOUSLY NOTED, BEARD TESTIFIED THAT DUPUIS TOLD HER SHE HAD WON
ROUND ONE BUT HE HAD WON ROUND TWO. WAS HE SIMPLY REFERRING TO THE MORE
ONEROUS MAKE-WORK HE WAS TELLING HER TO DO? HAD HE ALREADY CALLED
ZIELINSKI AND DISCUSSED HER WORK SCHEDULE? HAD HE DECIDED TO CHANGE
ZIELINSKI'S SCHEDULE TO ACCOMODATE BEARD'S KNOWN DESIRE AND WAS NOW
GOING TO RESCIND THIS CHANGE? WHY DID HE EVER CHOOSE THIS PARTICULAR
TIME WHEN HE WAS OBVIOUSLY VERY ANGRY WITH BEARD TO INTRODUCE THE
SUBJECT OF WORK SCHEDULES? WELL, ACCORDING TO DUPUIS, HE HAD COMPLETED
HIS DISCUSSION WITH BEARD ABOUT 15 MINUTE BREAKS, AND HAD RETURNED TO
THE REAR OFFICE WHERE HE HAD BEEN DISCUSSING THE SHIFT SCHEDULE WITH MR.
HEARD "ALL DAY LONG." ABOUT 5 OR 10 MINUTES LATER HE RETURNED TO THE
FRONT OFFICE WHERE BEARD HAPPENED TO BE SITTING AND HE GAVE A WORK
SCHEDULE TO HEARD AND TOLD HIM THAT THIS WAS THE NEW SCHEDULE TO BE
IMPLEMENTED ON MARCH 10. (DIDN'T HEARD ALREADY KNOW THIS SINCE HE
ASSISTED ZIELINSKI IN PREPARING THE SCHEDULE?) MR. LETOURNEAU, NIGHT
SHIFT SUPERVISOR, WAS ALSO THERE. HE DID NOT TESTIFY. ACCORDING TO
DUPUIS, MRS. BEARD THEN INQUIRED ABOUT HER SCHEDULE AND HE TOLD HER
ABOUT HER BEING TRANSFERRED TO THE NIGHT SHIFT.
THE FOREGOING VERSION BY DUPUIS IS DIFFERENT FROM BEARD'S TESTIMONY--
PREVIOUSLY RECITED HEREIN-- BUT CONTAINS SOME COMMON ELEMENTS. FOR
EXAMPLE, DUPUIS, HEARD, AND BEARD ALL AGREE THAT DUPUIS LEFT THE FRONT
OFFICE AREA AFTER THE INITIAL CONVERSATION IN WHICH THE WORD "DAMN" WAS
USED, WENT TO THE REAR OFFICE, AND THEN RETURNED TO THE FRONT OFFICE
WITH A WORK SCHEDULE AT WHICH TIME BEARD LEARNED OF HER NEW HOURS. I
FIND HEARD'S TESTIMONY (TR. 149) TO BE EVASIVE AS TO WHAT DUPUIS SAID TO
BEARD ON THIS OCCASION AND, AS NOTED ABOVE, LETOURNEAU DID NOT TESTIFY.
I CONCLUDE FROM MY ANALYSIS OF THE FOREGOING EVIDENCE AND THE ENTIRE
RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
THAT SHIRLEY BEARD'S ACCOUNT OF WHAT TRANSPIRED ON FEBRUARY 15 IS THE
MORE PLAUSIBLE AND CREDITABLE VERSION.
SECTION 19(A)(1) MAKES IT UNLAWFUL FOR MANAGEMENT TO "INTERFERE WITH,
RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
. . ." EXECUTIVE ORDER 11491. INCLUDED IN THESE ASSURED RIGHTS ARE
THOSE GRANTED IN SECTION 1(A) OF THE ORDER WHICH READS IN PERTINENT
PART:
EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS
THE RIGHT, FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A
LABOR ORGANIZATION OR TO
REFRAIN FROM ANY SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED
IN THE EXERCISE OF THIS
RIGHT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS ORDER, THE
RIGHT TO ASSIST A LABOR
ORGANIZATION EXTENDS TO PARTICIPATION IN THE MANAGEMENT OF THE
ORGANIZATION AND ACTING FOR THE
ORGANIZATION IN THE CAPACITY OF AN ORGANIZATION REPRESENTATIVE,
INCLUDING PRESENTATION OF ITS
VIEWS TO OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR OTHER
APPROPRIATE AUTHORITY.
THERE IS NO DOUBT THAT MRS. BEARD'S PRESENTATION TO MR. JOHNSON OF A
COMPLAINT REGARDING BREAK TIME REPRESENTED PRIVILEGED AND PROTECTED
ACTIVITY UNDER THE LANGUAGE ABOVE QUOTED.
IT IS LIKEWISE CERTAIN, FROM THE EVIDENCE ADDUCED, THAT WHEN INFORMED
BY MR. JOHNSON OF BEARD'S COMPLAINT, MR. DUPUIS BECAME VERY ANGRY AND
LOST HIS TEMPER. AS INDICATED BY THE CREDITED TESTIMONY OF MRS. BEARD,
HE INTENDED HER CHANGE IN WORK HOURS TO BE HIS VICTORY IN "ROUND TWO"
FOLLOWING HIS "DEFEAT" BEFORE MR. JOHNSON AT THE HANDS OF MRS. BEARD IN
"ROUND ONE." THE RELATIONSHIP BETWEEN THE TWO INCIDENTS IS CLEAR.
DISCRIMINATORY ACTION TAKEN AGAINST AN EMPLOYEE BECAUSE OF HIS OR HER
ACTIVITY AS A UNION REPRESENTATIVE IS A VIOLATION OF SECTION 19(A)(1),
ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, A/SLMR NO.
136.
SECTION 19(A)(2) PROVIDES THAT IT IS AN UNFAIR LABOR PRACTICE TO
"ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT." THE ASSISTANT SECRETARY HAS SAID WITH REGARD
TO THIS LANGUAGE THAT EVIDENCE OF ACTUAL ENCOURAGEMENT OR DISCOURAGEMENT
OF MEMBERSHIP IS NOT NECESSARY TO SUPPORT A FINDING OF A VIOLATION IF
THE DISCRIMINATORY ACTS, BY THEIR VERY NATURE, INHERENTLY WOULD TEND TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION,
ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, SUPRA. NOR
SHOULD "MEMBERSHIP" AS USED IN SECTION 19(A)(2) BE CONFINED IN MEANING
TO THE MERE JOINING OR REMAINING ON A UNION ROSTER. ALL THE
PREROGATIVES PRESERVED TO FEDERAL EMPLOYEES BY SECTION 1 OF THE ORDER
WITH REGARD TO UNION ACTIVITY ARE PROTECTED AGAINST DISCRIMINATION BY
SECTION 19(A)(2).
ON THE BASIS OF ALL THE EVIDENCE I FIND THAT THE CHANGE IN MRS.
BEARD'S WORK SCHEDULE AND THE ADDITION OF ONEROUS WORK CHORES TO HER
DUTIES WAS IN RETALIATION FOR HER PROTECTED ACTIONS IN COMPLAINING TO
MR. JOHNSON ABOUT NOT BEING ALLOWED ADEQUATE BREAK TIME. THE CHANGE IN
ASSIGNED DUTIES MADE ONLY WITH RESPECT TO MRS. BEARD IS CLEARLY
DISCRIMINATORY. /5/ THE ACTIVITY ARGUES, HOWEVER, THAT THE RESCHEDULING
OF MRS. BEARD'S WORK HOURS WAS EFFECTED SOLELY IN THE INTEREST OF
IMPROVING THE MANAGEMENT OF THE SERVICE STATION AND IN AN EFFORT TO
LEGITIMATELY AVOID ADDITIONAL PAYROLL COSTS. THE SUPREME COURT HAS HELD
IN AN ANALOGOUS SITUATION UNDER THE LABOR MANAGEMENT RELATIONS ACT, 29
U.S.C. 151 ET SEQ., THAT WHEN IT IS FOUND THAT BY HIS ACTION AN EMPLOYER
SUBJECTIVELY INTENDED TO ENCOURAGE OR DISCOURAGE UNION MEMBERSHIP, ANY
CLAIM THAT THE ACTION WAS UNDERTAKEN FOR A LEGITIMATE BUSINESS PURPOSE
WILL BE OVERCOME, NLRB V. ERIE RESISTOR CORPORATION, 373 U.S. 221, 83
ST.CT. 1139 (1963). THE TEST, AS STATED BY THE TENTH CIRCUIT IN NLRB V.
OKLA-INN, 488 F.2D 498, 507, 84 LRRM 2585, 2592 (1973), IS AS FOLLOWS:
"IN DETERMINING WHETHER AN EMPLOYEE'S WORKING CONDITIONS HAVE BEEN
CHANGED OR HIS
EMPLOYMENT TERMINATED FOR DISCRIMINATORY REASONS, IT IS NECESSARY TO
ASSESS 'THE DEGREE OF
SIGNIFICANCE TO BE GIVEN TO THE EMPLOYER'S EXPLANATION' AND TO INFER
FROM ALL THE AVAILABLE
EVIDENCE WHETHER THE STATED EXPLANATION IS THE REAL REASON OR MERELY
A PRETEXT TO MASK
ANTI-UNION MOTIVATION." (CITATIONS OMITTED)
IN THE LIGHT OF THE SEQUENCE OF EVENTS LEADING TO THE CHANGE IN MRS.
BEARD'S WORK HOURS AND DUTIES AND THE ATTITUDE OF MR. DUPUIS IN
ANNOUNCING THE CHANGE TO HER, I FIND THAT THE CHANGE SO EFFECTED WAS
DISCRIMINATORY AND WAS INTENDED TO DISCOURAGE THE EXERCISE BY MRS. BEARD
AND BY EXAMPLE OTHER EMPLOYEES OF THE RIGHTS GUARANTEED BY SECTION 1.
IN THE CIRCUMSTANCES OF THIS CASE, NOTING THAT SHIRLEY BEARD WAS
SUBSEQUENTLY PROMOTED TO A DIFFERENT POSITION, I FIND IT UNNECESSARY TO
ORDER THAT HER PREVIOUS WORK SCHEDULE BE REINSTATED.
THE COMPLAINT FURTHER CONTENDS THAT THE RESPONDENT ACTIVITY REFUSED
TO CONSULT, CONFER, OR NEGOTIATE WITH THE COMPLAINANT UNION REGARDING
THE CHARGE FILED BY THE UNION AND REFUSED TO COOPERATE IN AN ATTEMPT TO
INFORMALLY RESOLVE THE DISPUTE INVOLVING MRS. BEARD. THIS, THE
COMPLAINANT ARGUES, WORKED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
THE DUTY TO ATTEMPT AN INFORMAL RESOLUTION OF PENDING CHARGES OF
UNFAIR LABOR PRACTICES IS NOT ONE FOUND IN THE EXECUTIVE ORDER. IF AT
ALL, SUCH DUTY IS IMPOSED BY THE REGULATIONS PROPOUNDED BY THE ASSISTANT
SECRETARY FOR THE CONDUCT OF UNFAIR LABOR PRACTICE PROCEEDINGS, 29 CFR
PART 203.
IT IS NOT NECESSARY IN THIS PROCEEDING, HOWEVER, TO EXAMINE WHETHER
THE ACTIVITY HAS RUN AFOUL OF CERTAIN OF THE REGULATIONS OF THE
ASSISTANT SECRETARY. FOR AS THE ASSISTANT SECRETARY HAS HELD,
. . . THE OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE RELATES TO THE
COLLECTIVE BARGAINING RELATIONSHIP BETWEEN AN INCUMBENT LABOR
ORGANIZATION AND AN AGENCY OR ACTIVITY. IT DOES NOT RELATE TO WHETHER
ONE OF THE PARTIES IN A COLLECTIVE BARGAINING RELATIONSHIP IS COMPLYING
WITH SECTION 203 OF THE ASSISTANT SECRETARY'S REGULATIONS. U.S.
DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, ET AL., A/SLMR NO. 211.
THE ASSISTANT SECRETARY HAS RECENTLY REITERATED HIS VIEW THAT A
19(A)(6) CHARGE GROUNDED ON AN ALLEGED VIOLATION OF PART 203 IS
INAPPROPRIATE FOR RESOLUTION IN AN UNFAIR LABOR PRACTICE PROCEEDING,
LONG BEACH NAVAL SHIPYARD, A/SLMR NO. 352.
IN VIEW OF THE ASSISTANT SECRETARY'S POSITION, AND BASED UPON MY OWN
INDEPENDENT EVALUATION OF THE EVIDENCE IN THIS PROCEEDING, I RECOMMEND
DISMISSAL OF THAT PORTION OF THE COMPLAINT RAISING THE SECTION 19(A)(6)
ALLEGATION.
IN VIEW OF MY FINDINGS AND CONCLUSIONS ABOVE, I MAKE THE FOLLOWING
RECOMMENDATIONS TO THE ASSISTANT SECRETARY:
(A) THAT THE ALLEGATIONS IN THE COMPLAINT REGARDING A VIOLATION OF
SECTION 19(A)(6) BE DISMISSED;
(B) THAT HAVING FOUND AND CONCLUDED THAT THE RESPONDENT HAS ENGAGED
IN CONDUCT PROHIBITED BY SECTION 19(A) SUBSECTIONS (1) AND (2) OF
EXECUTIVE ORDER 11491, THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
RECOMMENDED ORDER DESIGNED TO EFFECTUATE THE PURPOSES OF EXECUTIVE ORDER
11491.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE ARMY AND AIR FORCE
EXCHANGE SERVICE, VANDENBERG AIR FORCE BASE, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING MRS. SHIRLEY BEARD OR
ANY OTHER EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE
ORDER 11491 BY DISCRIMINATION WITH REGARD TO THE ASSIGNMENT OF
ADDITIONAL AND MORE ONEROUS WORK DUTIES AND BY CHANGING HER WORK
SCHEDULE.
(B) ENCOURAGING OR DISCOURAGING MEMBERSHIP IN NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1001 OR ANY OTHER LABOR ORGANIZATION BY
DISCRIMINATION WITH REGARD TO THE ASSIGNMENT OF ADDITIONAL AND MORE
ONEROUS WORK DUTIES AND BY CHANGING HER WORK SCHEDULE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE THE PURPOSES
AND PROVISIONS OF THE ORDER:
(A) POST AT ITS FACILITIES AT VANDENBERG AIR FORCE BASE, CALIFORNIA,
COPIES OF THE ATTACHED NOTICE WORDED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT
OF SUCH FORMS THEY SHALL BE SIGNED BY THE GENERAL MANAGER OF THE BASE
EXCHANGE AND SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60)
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE GENERAL MANAGER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TEN (10) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: MAY 21, 1974
WASHINGTON, D.C.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE MRS. SHIRLEY BEARD OR
ANY OTHER EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491 BY DISCRIMINATION WITH REGARD TO THE ASSIGNMENT OF
ADDITIONAL AND MORE ONEROUS WORK DUTIES AND BY CHANGING HER WORK
SCHEDULE.
WE WILL NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1001 OR ANY OTHER LABOR ORGANIZATION BY
DISCRIMINATION WITH REGARD TO THE ASSIGNMENT OF ADDITIONAL AND MORE
ONEROUS WORK DUTIES AND BY CHANGING HER WORK SCHEDULE.
DATED: . . . BY . . . SIGNATURE
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, UNITED STATES
DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 9061, FEDERAL BUILDING, 450
GOLDEN GATE AVENUE, BOX 36017, SAN FRANCISCO, CALIFORNIA 94102.
/1/ MR. DUPUIS' EXPLANATION FOR NOT RELEASING MRS. BEARD ON TIME IS
THAT HE SIMPLY FORGOT ABOUT THE MEETING. THIS EXPLANATION WAS ACCEPTED
BY MRS. BEARD AND I ATTACH NO SIGNIFICANCE TO THIS EVENT INSOFAR AS THIS
COMPLAINT IS CONCERNED.
/2/ DUPUIS ADMITS THAT JOHNSON CALLED HIM AFTER THE MEETING AND
REPRIMANDED HIM FOR NOT GIVING HIS EMPLOYEES THIER 15 MINUTE BREAKS.
HOWEVER, HE DENIES THAT HE WAS TALKING TO JOHNSON WHEN MRS. BEARD
ENTERED THE ROOM. HE SAYS HE WAS TALKING TO A CUSTOMER. MRS. JOHNSON
DID NOT TESTIFY. WHILE I CREDIT MRS. BEARD'S ACCOUNT, I AM UNABLE TO
CONCLUDE ON THIS RECORD, HOWEVER SUSPICIOUS THE TIMING MAY BE, THAT
DUPUIS WAS TALKING TO JOHNSON AND REFERRING TO MRS. BEARD.
/3/ THE TRANSCRIPT OF THESE PROCEEDINGS CLEARLY SHOWS THAT THE CHANGE
ACTUALLY MADE IN MRS. BEARD'S WORKING HOURS WAS FROM 7:15 A.M. UNTIL
3:45 P.M. TO 10:45 A.M. UNTIL 7:15 P.M.
/4/ THE COMPLAINT CHARGES THAT MR. DUPUIS INFORMED MRS. BEARD OF THE
CHANGE IN HER WORK SCHEDULE ON FEBRUARY 20, 1973. THE COMPLAINT IS
CLEARLY INCONSISTENT WITH THE PROOF ON THIS POINT. RESPONDENT HAS NOT
BEEN PREJUDICED, HOWEVER, AND THEREFORE THE ERROR IS NOT CRITICAL TO THE
PRESENT INQUIRY.
/5/ IT IS CLEAR THAT MANAGEMENT HAD NO KNOWLEDGE PRIOR TO THE 15
FEBRUARY MEETING THAT MRS. BEARD WOULD BE SERVING AS AN EMPLOYEE
REPRESENTATIVE; NEITHER DOES THE UNION SERIOUSLY CONTEND THAT IT HAD
SUCH PRIOR KNOWLEDGE. ITS COMPLAINT ALLEGES THAT THE 15 FEBRUARY
MEETING WAS THE FIRST OCCASION ON WHICH IT GAVE NOTICE TO MANAGEMENT;
MRS. BEARD WAS NOT AWARE THAT SHE WAS TO BE A REPRESENTATIVE AND
FORTHRIGHTLY ADMITS THAT SHE WAS NOT ACTING AS A UNION STEWARD UNTIL SHE
ACTUALLY APPEARED AT THE MEETING. I FIND NO MERIT IN THE COMPLAINANT'S
CONTENTION THAT THE DISCRIMINATION AGAINST BEARD WAS BASED UPON HER
STATUS AS A UNION REPRESENTATIVE.
4 A/SLMR 436; P. 634; CASE NO. 72-4725(CU); SEPTEMBER 30, 1974.
ARIZONA NATIONAL GUARD,
AIR NATIONAL GUARD,
SKY HARBOR AIRPORT
A/SLMR NO. 436
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY SEEKING CLARIFICATION OF THE STATUS OF ONE EMPLOYEE, AN
AIRCRAFT INSTRUMENT AND CONTROL SYSTEMS MECHANIC (LEADER), WG-12,
(MECHANIC, LEADER) IN THE INSTRUMENT SUBFUNCTION OF THE ACTIVITY. THE
ACTIVITY TOOK THE POSITION THAT THE INCUMBENT IN THAT POSITION WAS A
SUPERVISOR AND SHOULD BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY, NOTING THAT THE MECHANIC (LEADER) DID NOT
HIRE, FIRE, OR TRANSFER EMPLOYEES; THAT THE DIRECTION GIVEN THE ONLY
OTHER EMPLOYEE IN THE INSTRUMENT SUBFUNCTION WAS ROUTINE IN NATURE, DID
NOT REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT, AND WAS DICTATED BY
ESTABLISHED PROCEDURES; AND THAT THE EVIDENCE DID NOT ESTABLISH THAT
THE MECHANIC (LEADER) PROMOTED OR EFFECTIVELY EVALUATED THE OTHER
EMPLOYEE IN THE INSTRUMENT SUBFUNCTION, CONCLUDED THAT THE INCUMBENT IN
THE POSITION IN QUESTION WAS NOT A SUPERVISOR WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY CLARIFIED THE EXCLUSIVELY
RECOGNIZED UNIT BY INCLUDING WITHIN THE UNIT THE POSITION OF AIRCRAFT
INSTRUMENT AND CONTROL SYSTEMS MECHANIC (LEADER), WG-12.
ARIZONA NATIONAL GUARD,
AIR NATIONAL GUARD,
SKY HARBOR AIRPORT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3046
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORCER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HENRY C. LEE, JR.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER FILED A PETITION FOR CLARIFICATION OF AN EXISTING UNIT
OF ALL AIR NATIONAL GUARD TECHNICIANS EMPLOYED AT THE SKY HARBOR
AIRPORT, PHOENIX, ARIZONA, FOR WHICH THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3046, HEREIN CALLED AFGE, IS THE
EXCLUSIVELY RECOGNIZED REPRESENTATIVE. SPECIFICALLY, THE PETITIONER
SEEKS TO CLARIFY THE STATUS OF AN EMPLOYEE IN THE JOB CLASSIFICATION OF
AIRCRAFT INSTRUMENT AND CONTROL SYSTEMS MECHANIC (LEADER), WG-12,
REFERRED TO HEREINAFTER AS THE MECHANIC (LEADER). IT CONTENDS THAT THIS
EMPLOYEE IS A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER
AND, THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT.
THE RECORD REVEALS THAT THE POSITION IN QUESTION IS ONE OF TWO
FULL-TIME POSITIONS IN THE PETITIONER'S AUTOMATIC FLIGHT CONTROL SYSTEMS
- INSTRUMENT SUBFUNCTION. /1/ THE INSTRUMENT SUBFUNCTION PERFORMS
MAINTENANCE WORK ON AIRCRAFT INSTRUMENT EQUIPMENT AND IS UNDER THE
GENERAL DIRECTION OF THE ELECTRONICS MECHANIC FOREMAN, WS-10. IT IS
ASSERTED THAT THE MECHANIC (LEADER), WHO HAS BEEN IN THIS POSITION SINCE
SEPTEMBER 1, 1973, SUPERVISES THE OTHER EMPLOYEE IN THE INSTRUMENT
SUBFUNCTION, AN AIRCRAFT INSTRUMENT AND CONTROL SYSTEMS MECHANIC, WG-10.
THE EVIDENCE ESTABLISHES THAT WORK IS ASSIGNED TO THE INSTRUMENT
SUBFUNCTION BY MAINTENANCE CONTROL, WHICH ESTABLISHES WORK PRIORITIES
FOR THE INSTRUMENT SUBFUNCTION. THE ELECTRONICS MECHANIC FOREMAN,
WS-10, WHO, AS NOTED ABOVE, IS THE OVERALL SUPERVISOR OF THE INSTRUMENT
SUBFUNCTION, IS LOCATED APPROXIMATELY 150 FEET AWAY FROM THE INSTRUMENT
SUBFUNCTION IN THE SAME HANGAR AND VISITS IT 2 OR 3 TIMES DAILY TO SEE
THAT THE WORK IS PROPERLY PERFORMED.
WHILE THE PETITIONER ALLEGES THAT THE MECHANIC (LEADER) EXERCISES
CERTAIN SUPERVISORY FUNCTIONS WITH RESPECT TO THE OTHER EMPLOYEE IN THE
INSTRUMENT SUBFUNCTION, THE RECORD INDICATES THAT SUCH FUNCTIONS EITHER
ARE NOT ENGAGED IN OR ARE IN THE NATURE OF A MORE EXPERIENCED EMPLOYEE
ASSISTING A LESS EXPERIENCED EMPLOYEE AS DISTINGUISHED FROM SUPERVISION.
/2/ THUS, THE EVIDENCE ESTABLISHES THAT THE MECHANIC (LEADER) SPENDS 95
PERCENT OF HIS TIME WORKING WITH THE OTHER EMPLOYEE IN THE INSTRUMENT
SUBFUNCTION PERFORMING WORK ON AIRCRAFT INSTRUMENTS, AND THAT SUCH
ASSIGNMENTS AS ARE MADE TO THE OTHER EMPLOYEE ARE ROUTINE IN NATURE AND
ARE WITHIN WELL ESTABLISHED PROCEDURES. FURTHER, HE DOES NOT APPROVE
LEAVE OR SIGN TIME AND ATTENDANCE CARDS, DOES NOT APPROVE OVERTIME, DOES
NOT ATTEND SUPERVISORS' MEETINGS, HAS NO AUTHORITY TO HIRE, TRANSFER,
REASSIGN, OR DISCHARGE, AND DOES NOT HAVE THE AUTHORITY TO RECOMMEND,
INITIATE OR APPROVE PROMOTIONS.
WHILE THE RECORD REVEALS THAT IN ONE INSTANCE THE MECHANIC (LEADER)
EXPRESSED VERBAL APPROVAL OF A PAY INCREASE WITH RESPECT TO THE OTHER
EMPLOYEE IN THE INSTRUMENT SUBFUNCTION, THERE IS NO EVIDENCE THAT HIS
RECOMMENDATION WAS REQUIRED BEFORE APPROVAL OF THE RAISE OR THAT THE
RECOMMENDATION EFFECTIVELY LED TO THE PAY INCREASE. MOREOVER, ALTHOUGH
THE INCUMBENT WAS ONE OF THREE INDIVIDUALS COMPRISING A BOARD WHICH
RATED THE QUALIFICATIONS OF APPLICANTS FOR THE POSITION OF AIRCRAFT
INSTRUMENT AND CONTROL SYSTEMS MECHANIC, WG-10, THERE IS NO EVIDENCE
THAT ANY RECOMMENDATION THE INCUMBENT MAY HAVE MADE LED TO THE SELECTION
OF AN INDIVIDUAL TO FILL THE POSITION. THE INCUMBENT TESTIFIED THAT
WHILE HE HAS NEVER EVALUATED THE PERFORMANCE OF THE OTHER EMPLOYEE IN
THE INSTRUMENT SUBFUNCTION, HE WOULD BE EXPECTED TO PREPARE A WRITTEN
PERFORMANCE APPRAISAL WITH RESPECT TO THAT EMPLOYEE IF THE OCCASION
AROSE. THE EVIDENCE FAILS TO ESTABLISH, HOWEVER, THAT ANY SUCH
APPRAISAL WOULD EFFECTIVELY LEAD TO A PROMOTION OR BE EFFECTIVE FOR ANY
OTHER PURPOSE. /3/
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH THAT SUPERVISORY AUTHORITY HAS BEEN VESTED IN
THE AIRCRAFT INSTRUMENT AND CONTROL SYSTEMS MECHANIC (LEADER), WG-12 AS
HE DOES NOT HIRE, FIRE, OR TRANSFER EMPLOYEES AND SUCH DIRECTION AS HE
GIVES TO THE OTHER EMPLOYEE IN THE INSTRUMENT SUBFUNCTION IS ROUTINE IN
NATURE, DOES NOT REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT, AND IS
DICTATED BY ESTABLISHED PROCEDURES. NOR DOES THE EVIDENCE ESTABLISH
THAT HE PROMOTES OR EFFECTIVELY EVALUATES THE OTHER EMPLOYEE IN THE
INSTRUMENT SUBFUNCTION. ACCORDINGLY, I FIND THAT THE AIRCRAFT
INSTRUMENT AND CONTROL SYSTEMS MECHANIC (LEADER), WG-12, IS NOT A
SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER, AND THAT THE
EMPLOYEE IN THIS CLASSIFICATION SHOULD BE INCLUDED IN THE UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3046, ON SEPTEMBER 29, 1969, AT THE
SKY HARBOR AIRPORT, PHOENIX, ARIZONA, BE, AND IT HEREBY IS, CLARIFIED BY
INCLUDING IN SAID UNIT THE POSITION OF AIRCRAFT INSTRUMENT AND CONTROL
SYSTEMS MECHANIC (LEADER), WG-12.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ THE RECORD INDICATES THAT ONE TO FOUR MILITARY RESERVISTS ARE
ASSIGNED TO THE INSTRUMENT SUBFUNCTION FOR TWO TO THREE WEEKS EACH YEAR.
THE EVIDENCE DOES NOT ESTABLISH THAT THE INCUMBENT EXERCISES
SUPERVISORY AUTHORITY WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER
OVER THESE RESERVISTS DURING THEIR BRIEF PERIOD OF MILITARY SERVICE.
/2/ CF. DEPARTMENT OF THE NAVY, UNITED STATES NAVAL STATION, ADAK,
ALASKA, A/SLMR NO. 321.
/3/ CF. FEDERAL AVIATION ADMINISTRATION, NATIONAL CAPITAL AIRPORTS,
A/SLMR NO. 405.
4 A/SLMR 434; P. 619; CASE NO. 20-4033(CA); SEPTEMBER 30, 1974.
DEPARTMENT OF THE NAVY,
AVIATION SUPPLY OFFICE,
PHILADELPHIA, PENNSYLVANIA
A/SLMR NO. 434
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED SECTION 19(A)(1) AND
(2) ALLEGATIONS FILED BY ANTHONY L. GOMEZ, (COMPLAINANT), A FORMER
EMPLOYEE OF THE DEPARTMENT OF THE NAVY, AVIATION SUPPLY OFFICE,
PHILADELPHIA, PENNSYLVANIA, (RESPONDENT). THE COMPLAINANT ALLEGED
ESSENTIALLY THAT THE RESPONDENT FOLLOWED A PATTERN OF HARRASSMENT
AGAINST HIM BECAUSE OF HIS UNION ACTIVITIES WHICH CAUSED HIM TO TRANSFER
TO A POSITION WITH ANOTHER AGENCY. SUCH CONDUCT, IN THE COMPLAINANT'S
VIEW, CONSTITUTED A CONSTRUCTIVE DISCHARGE IN VIOLATION OF THE ORDER.
THE RESPONDENT CONTENDED, AMONG OTHER THINGS, THAT THE ASSISTANT
SECRETARY HAD NO JURISDICTION IN THIS MATTER BECAUSE THE ALLEGED
CONSTRUCTIVE DISCHARGE WOULD CONSTITUTE AN ADVERSE ACTION AND THAT SUCH
ADVERSE ACTION MIGHT PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE
AVAILABLE TO THE COMPLAINANT. ACCORDINGLY, UNDER SECTION 19(D) OF THE
ORDER, THE ISSUE COULD NOT BE RAISED BEFORE THE ASSISTANT SECRETARY IN
AN UNFAIR LABOR PRACTICE PROCEEDING.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINANT BE
DISMISSED IN ITS ENTIRETY. IN THIS CONNECTION, HE NOTED THAT THE ISSUE
OF THE ALLEGED CONSTRUCTIVE DISCHARGE INVOLVED AN ALLEGATION WHICH WAS
SUBJECT TO AN ADVERSE ACTION PROCEDURE. HE CONCLUDED, THEREFORE, THAT
AS AN APPEALS PROCEDURE WAS AVAILABLE TO THE COMPLAINANT, THE ASSISTANT
SECRETARY WAS WITHOUT AUTHORITY UNDER SECTION 19(D) TO PROCEED ON A
SECTION 19 COMPLAINT.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY ADOPTED THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE THAT AS
THE ISSUE IN THIS MATTER PROPERLY COULD HAVE BEEN RAISED UNDER AN
APPEALS PROCEDURE, IT COULD NOT BE RAISED UNDER SECTION 19.
ACCORDINGLY, HE ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF THE NAVY,
AVIATION SUPPLY OFFICE,
PHILADELPHIA, PENNSYLVANIA
AND
ANTHONY L. GOMEZ
ON JULY 11, 1974, ADMINISTRATIVE LAW JUDGE THOMAS W. KENNEDY ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT DISMISSAL OF THE INSTANT COMPLAINT WAS WARRANTED ON THE BASIS THAT
UNDER SECTION 19(D) OF THE ORDER THE ASSISTANT SECRETARY WAS WITHOUT
AUTHORITY TO PROCEED. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE
LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I FIND, IN AGREEMENT WITH
THE ADMINISTRATIVE LAW JUDGE, THAT, UNDER THE CIRCUMSTANCES, FURTHER
PROCEEDINGS ON THE COMPLAINT HEREIN WERE UNWARRANTED. THUS, AS THE
ISSUE IN THIS MATTER PROPERLY COULD HAVE BEEN RAISED UNDER AN APPEALS
PROCEDURE, IN ACCORDANCE WITH SECTION 19(D) OF THE ORDER IT MAY NOT BE
RAISED UNDER SECTION 19.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 20-4033(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
IN THE MATTER OF:
DEPARTMENT OF THE NAVY,
AVIATION SUPPLY OFFICE,
PHILADELPHIA, PENNSYLVANIA
AND
ANTHONY L. GOMEZ, AN INDIVIDUAL
JOHN J. CONNERTON, ESQUIRE
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
JOSEPH J. DALLAS, ESQUIRE
REGIONAL OFFICE OF CIVILIAN
MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
PHILADELPHIA NAVAL BASE
PHILADELPHIA, PENNSYLVANIA 19112
HERBERT G. KEENE, JR., ESQUIRE
1330 TWO GIRARD PLAZA
PHILADELPHIA, PENNSYLVANIA 19102
BEFORE: THOMAS W. KENNEDY
ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER. A NOTICE OF HEARING THEREUNDER WAS ISSUED ON OCTOBER 31, 1973,
BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, PHILADELPHIA REGION, BASED ON A COMPLAINT FILED BY
ANTHONY L. GOMEZ /1/ (HEREIN CALLED GOMEZ OR COMPLAINANT) AGAINST THE
DEPARTMENT OF THE NAVY, NAVAL PUBLICATIONS AND FORMS CENTER, /2/
PHILADELPHIA, PENNSYLVANIA (HEREIN CALLED RESPONDENT). THE COMPLAINT
ALLEGES THAT RESPONDENT VIOLATED SECTION 19(A), SUBSECTIONS (1), (2) AND
(6) OF THE ORDER. /3/ SPECIFICALLY, THE COMPLAINANT ALLEGES THAT
RESPONDENT FOLLOWED A PATTERN OF HARRASSMENT AGAINST COMPLAINANT BECAUSE
OF HIS UNION ACTIVITIES, THUS FORCING HIM TO TRANSFER TO ANOTHER
EMPLOYER. IT IS ALLEGED, THEREFOR, THAT THIS TRANSFER CONSTITUTED A
CONSTRUCTIVE DISCHARGE IN VIOLATION OF THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED
ADMINISTRATIVE LAW JUDGE ON FEBRUARY 5,6,20,21, AND 22, 1974, IN
PHILADELPHIA, PENNSYLVANIA. ALL PARTIES WERE REPRESENTED AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED
HEREIN. OPPORTUNITY TO FILE BRIEFS WAS GRANTED, BUT ONLY RESPONDENT
AVAILED ITSELF OF THIS OPPORTUNITY.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND THE RELEVANT EVIDENCE ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS:
A. BACKGROUND
ANTHONY L. GOMEZ WAS FIRST EMPLOYED BY RESPONDENT AROUND AUGUST OF
1970 AS A SECURITY GUARD IN RESPONDENT'S SECURITY DIVISION. INITIALLY
AT LEVEL GS-3 AND LATER AT GS-4, HE WAS, AT ALL TIMES MATERIAL HEREIN,
"...A CAREER NAVY EMPLOYEE IN A COMPETITIVE STATUS AND WAS ENTITLED TO
ALL OF THE RIGHTS SET FORTH IN THE PERTINENT CIVIL SERVICE STATUTE AND
REGULATIONS WITH RESPECT TO ADVERSE ACTIONS." /4/ HE WAS A MEMBER OF
LODGE 81, FRATERNAL ORDER OF POLICE, WHICH WAS THE EXCLUSIVE
REPRESENTATIVE FOR A UNIT OF ALL NON-SUPERVISORY GUARDS AND DETECTIVES
OF THE POLICE BRANCH IN RESPONDENT'S SECURITY DIVISION, AND DURING HIS
EMPLOYMENT WAS ELECTED TO THE POSITION OF WATCH DIRECTOR ON THE DAY
SHIFT, A UNION TITLE WHICH PARALLELS THE MORE COMMONLY USED "SHOP
STEWARD." FOLLOWING THIS ELECTION, COMPLAINANT ALLEGES THAT THERE
EMERGED A PATTERN OF HARASSMENT, WHICH INVOLVED DISCIPLINARY MEASURES
TAKEN BY RESPONDENT AGAINST COMPLAINANT IN RESPONSE TO HIS ZEALOUS
EXECUTION OF HIS UNION DUTIES. COMPLAINANT FURTHER ALLEGES THAT BUT FOR
THIS ILLEGAL HARASSMENT HE WOULD NOT HAVE TRANSFERRED, AS HE DID ON
SEPTEMBER 18, 1972, TO ANOTHER GOVERNMENT AGENCY. AND A TRANSFER
INDUCED IN THIS MANNER, CLAIMS COMPLAINANT, IS A CONSTRUCTIVE DISCHARGE
IN VIOLATION OF SECTION 19(A)(1) AND (2) OF THE ORDER.
B. THE ALLEGED PATTERN OF HARASSMENT
THE ALLEGED PATTERN OF HARASSMENT WAS COUCHED CHIEFLY IN DISCIPLINARY
MEASURES: THREE LETTERS OF REPRIMAND, /5/ A WARNING OF A LETTER OF
REPRIMAND, A RECOMMENDATION FOR A SUSPENSION, AND A POST-TRANSFER
ATTEMPT BY RESPONDENT TO DISCREDIT COMPLAINANT IN HIS NEW EMPLOYMENT.
IN ADDITION, COMPLAINANT DESCRIBES CONSTANT VERBAL ABUSE BY IMMEDIATE
SUPERVISORS AND UNEQUAL, "SINGLING OUT" TREATMENT IN GENERAL WORK
DIRECTIVES.
THE INITIAL LETTER OF REPRIMAND WAS ISSUED TO GOMEZ ON DECEMBER 1,
1971, ON THE GROUND OF "LEAVING JOB TO WHICH ASSIGNED DURING WORKING
HOURS WITHOUT PROPER PERMISSION." FOUR SPECIFIC INSTANCES OF
UNAUTHORIZED ABSENCES WERE CITED THEREIN, ON SEPTEMBER 22, OCTOBER 11
AND 13, AND NOVEMBER 2, 1971. ANOTHER INCIDENT CITED WAS UNAUTHORIZED
USE OF A TELEPHONE ON OCTOBER 6, 1971.
GOMEZ GRIEVED THE MATTER OF THE LETTER OF REPRIMAND TO LT. BRYANT,
DIRECTOR OF THE SECURITY DIVISION AND THE NEXT-LEVEL SUPERVISOR. AFTER
AN INVESTIGATION, BRYANT AFFIRMED THE LETTER BASED ON THE FOUR ABSENCES,
ALTHOUGH HE DID NOT CREDIT THE TELEPHONE INCIDENT BECAUSE OF POSSIBLE
EQUIPMENT DIFFICULTIES.
CONTINUING HIS APPEAL, COMPLAINANT NEXT WENT TO THE ADMINISTRATIVE
DEPARTMENT DIRECTOR, COMMANDER SWAYNE. ON FEBRUARY 1, 1972, COMMANDER
SWAYNE ISSUED HER DECISION, WHICH REDUCED THE DISCIPLINARY MEASURE TO A
LETTER OF CAUTION, /6/ STATING THAT SHE FELT THIS WOULD SERVE TO CORRECT
THE PROBLEM. COMPLAINANT HAD NEVER BEFORE BEEN DISCIPLINED.
THE SECOND LETTER OF REPRIMAND WAS ISSUED ON JUNE 18, 1972 - THIS
TIME FOR "FAILURE TO CARRY OUT INSTRUCTIONS OF YOUR SUPERVISOR." ONE
INCIDENT, OCCURRING ON JUNE 8, 1972, PRODUCED THIS LETTER OF REPRIMAND.
APPARENTLY, COMPLAINANT WAS DIRECTED TO REMAIN AT THE SITE OF A POSSIBLE
FIRE UNTIL THE FIREMAN ARRIVED, BUT INSTEAD RAN ACROSS THE STREET TO THE
POLICE OFFICE TO SUGGEST THAT THEY ALSO CALL AN ELECTRICIAN, SINCE THE
SMELL OF THE SMOKE INDICATED TO HIM AN ELECTRICAL FIRE, THEN RETURNED TO
HIS POST TO AWAIT THE FIREMEN.
GOMEZ GRIEVED THIS SECOND REPRIMAND THROUGH THE ADMINISTRATIVE
PROCEDURES, AND THIS TIME COMMANDER SWAYNE UPHELD THE LETTER OF
REPRIMAND. UPON FURTHER APPEAL, A TWO DAY HEARING WAS HELD BEFORE A
NAVY DEPARTMENT ADMINISTRATIVE HEARING EXAMINER, IN AUGUST, 1972. A
DECISION WAS NEVER RENDERED, HOWEVER, THE ISSUE BECOMING MOOT BY
REGULATION UPON COMPLAINANT'S TRANSFER. /7/
ON AUGUST 22, 1972, COMPLAINANT RECEIVED THE THIRD LETTER OF
REPRIMAND, WHICH WAS AGAIN BASED ON A SINGLE INCIDENT OF "FAILURE TO
CARRY OUT A WORK ASSIGNMENT." THE INCIDENT, WHICH OCCURRED ON AUGUST 8,
1972, INVOLVED THE FAILURE TO OPEN A BUSY BASE GATE AT THE APPROPRIATE
TIME IN THE MORNING. AGAIN COMPLAINANT GRIEVED AND AGAIN BRYANT DENIED
HIS APPEAL.
ON JUNE 5, 1972, LT. BRYANT ISSUED TO GOMEZ A "MEMORANDUM OF
UNDERSTANDING." THIS, IN ESSENCE, AFTER CITING FIVE SPECIFIC OCCASIONS
WHEN GOMEZ EXCEEDED THE NORMAL CHAIN OF COMMAND TO DISCUSS PROBLEMS
WITHIN THE SECURITY DIVISION, WAS A CLEAR WARNING THAT THE NEXT SUCH
OCCASION WOULD RESULT IN DISCIPLINARY ACTION. AT THE END OF AUGUST, LT.
BRYANT RECOMMENDED THAT GOMEZ BE SUSPENDED FOR FIVE DAYS FOR HAVING: 1)
VIOLATED THE JUNE 5 MEMORANDUM BY CONTACTING AN OFFICIAL OUTSIDE THE
CHAIN OF COMMAND; AND 2) ACQUIRED TWO LETTERS OF REPRIMAND SUBSEQUENT
TO THAT MEMORANDUM. SUCH SUSPENSION WAS NEVER IMPLEMENTED, HOWEVER, DUE
TO GOMEZ' TRANSFER.
GOMEZ TRANSFERRED TO FRANKFORD ARSENAL ON OR ABOUT SEPTEMBER 18,
1972, AND HAS BEEN CONTINUOUSLY SO EMPLOYED UP TO THE DATE OF THE
HEARING IN THE INSTANT CASE. SHORTLY AFTER THE TRANSFER, SGT. RODA, WHO
HAD BEEN GOMEZ' IMMEDIATE SUPERVISOR, PERSONALLY DELIVERED GOMEZ'
PERSONNEL EVALUATION VOUCHER TO FRANKFORD ARSENAL. SUCH VOUCHERS ARE
GENERALLY MAILED, BUT RODA FORGOT TO MAIL IT. BRYANT THEN ASKED RODA,
WHO WAS ON SICK LEAVE, TO TAKE IT THERE HIMSELF TO EXPEDITE DELIVERY.
AT THE ARSENAL, A CONVERSATION DEVELOPED BETWEEN RODA AND POLICE CHIEF
COLEMAN, GOMEZ' NEW SUPERVISOR, ABOUT GOMEZ' EMPLOYEE QUALITIES. GOMEZ
CONTENDS THAT RODA'S REMARKS WERE DISCRIMINATORY, DEROGATORY AND A
CONTINUATION OF RESPONDENT'S HARASSMENT. RESPONDENT CONTENDS THESE
REMARKS WERE BONA FIDE ANSWERS TO COLEMAN'S QUESTIONS.
FINALLY, HIGHLIGHTING THESE SPECIFIC ACTIONS BY RESPONDENT, WHICH
COMPLAINANT CONTENDS CONSTITUTE A PATTERN OF HARASSMENT AGAINST HIM FOR
VIGOROUSLY PURSUING HIS UNION ACTIVITIES, ARE A NUMBER OF ALLEGED
PRACTICES BY RESPONDENT WHICH TENDED TO DISCRIMINATE AGAINST
COMPLAINANT. SOME OF THESE ALLEGED PRACTICES ARE: 1) VERBAL ABUSE BY
CERTAIN SUPERVISORS WHICH WOULD TEND TO DISCREDIT COMPLAINANT BEFORE
OTHER UNION MEMBERS; 2) STRICT BREAK TIME MONITORING BY RESPONDENT
LIMITED TO COMPLAINANT; 3) DISPARAGING REMARKS MADE BY SUPERVISORS
AGAINST THE UNION, AND 4) A GENERAL PRACTICE OF STRICTLY AND
UNREASONABLY ENFORCING REGULATIONS AGAINST COMPLAINANT BUT NOT AGAINST
OTHER GUARDS NOT ACTIVE IN UNION AFFAIRS.
C. POSITIONS OF THE PARTIES
1. POSITION OF COMPLAINANT
THE POSITION OF THE COMPLAINANT IS THAT THE ALLEGED PATTERN OF
HARASSMENT, AS DESCRIBED ABOVE, CULMINATED IN HIS TRANSFER TO ANOTHER
EMPLOYER, THEREBY CONSTITUTING A CONSTRUCTIVE DISCHARGE IN VIOLATION OF
SECTIONS 19(A)(1) AND (2) OF THE ORDER.
2. POSITION OF RESPONDENT
RESPONDENT REVEALS THREE MAJOR JURISDICTIONAL DEFENSES AND FOUR
ARGUMENTS ON THE MERITS: 1) THE ALLEGED INCIDENTS WHICH OCCURRED PRIOR
TO JULY 7, 1972, ARE UNTIMELY UNDER SECTION 203.2(B)(3) OF THE
REGULATIONS; 2) THE ALLEGATIONS INVOLVED HEREIN CONSTITUTED GRIEVANCES,
AND SINCE COMPLAINANT GRIEVED THESE MATTERS, UNDER SECTION 19(D) HE
CANNOT RAISE THEM IN THIS FORUM; 3) THE COMPLAINT CONTAINS ISSUES THAT
CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE AND THUS MAY NOT BE
RAISED UNDER SECTION 19 OF THE ORDER; AND 4) ON THE MERITS, THE FACTS
DO NOT SUPPORT A FINDING THAT RESPONDENT VIOLATED THE ORDER.
RESPONDENT'S FIRST ARGUMENT ASSERTS A "STATUTE OF LIMITATIONS" BAR TO
ANY "INCIDENTS" WHICH OCCURRED PRIOR TO JULY 17, 1972, CITING SECTION
203.2(B)(3) OF THE REGULATIONS. THIS SECTION READS:
(3) A COMPLAINT MUST BE FILED WITH NINE (9) MONTHS OF THE OCCURRENCE
OF THE ALLEGED UNFAIR
LABOR PRACTICE OR WITHIN SIXTY (60) DAYS OF THE SERVICE OF A
RESPONDENT'S WRITTEN FINAL
DECISION ON THE CHARGING PARTY, WHICHEVER IS THE SHORTER PERIOD OF
TIME. (EMPHASIS SUPPLIED.)
A DISTINCTION MUST BE DRAWN BETWEEN ANY "INCIDENTS" WHICH MAY
CONTRIBUTE TO AN UNFAIR LABOR PRACTICE AND THE "UNFAIR LABOR PRACTICE"
ITSELF. SECTION 203.2(A)(3) REFERS TO THE "FACTS CONSTITUTING THE
UNFAIR LABOR PRACTICE" AND LATER TO THE "PARTICULAR ACTS" INVOLVED.
CLEARLY, THE "FACTS", "ACTS", AND "INCIDENTS" WHICH LEAD UP TO AND CAUSE
THE ALLEGED UNFAIR LABOR PRACTICE, HERE A CONSTRUCTIVE DISCHARGE, CANNOT
BE BARRED FROM CONSIDERATION IF THE RESULTING ALLEGED UNFAIR LABOR
PRACTICE COMPLAINT IS TIMELY.
HERE THE ALLEGED UNFAIR LABOR PRACTICE OCCURRED WITH COMPLAINANT'S
TRANSFER IN SEPTEMBER, 1972, AND THE COMPLAINT WAS FILED ON APRIL 19,
1973 - WELL WITHIN THE NINE MONTH PERIOD. ACCORDINGLY, I FIND THE
COMPLAINT TIMELY AND WOULD CONSIDER ANY FACTS OR INCIDENTS LEADING UP TO
THE ALLEGED UNFAIR LABOR PRACTICE.
RESPONDENT'S SECOND ARGUMENT INVOLVES THE SECOND SENTENCE OF SECTION
19(D) OF THE ORDER, AS AMENDED. THIS READS:
ISSUES WHICH CAN BE RAISED UNDER A GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE
AGGRIEVED PARTY, BE RAISED UNDER THAT PROCEDURE OR THE COMPLAINT
PROCEDURE UNDER THIS SECTION,
BUT NOT UNDER BOTH PROCEDURES. (EMPHASIS ADDED.)
RESPONDENT ARGUES, THEN, THAT SINCE THE "ISSUES", HERE MEANING THE
LETTERS OF REPRIMAND, WERE ALREADY GRIEVED, COMPLAINANT HAS ELECTED HIS
AVENUE OF RECOURSE AND IS PRECLUDED FROM FURTHER PURSUIT UNDER SECTION
19. BUT HERE AGAIN THE ALLEGED UNFAIR LABOR PRACTICE MUST BE
DISTINGUISHED FROM THE VARIOUS DISCIPLINARY ACTIONS. IF THE ALLEGED
UNFAIR LABOR PRACTICE MERELY INVOLVED ONE LETTER OF REPRIMAND FOR WHICH
A COMPLAINT WAS FILED AFTER IT HAD ALREADY BEEN GRIEVED, THEN THIS
LANGUAGE OF THE ORDER WOULD PROBABLY BAR JURISDICTION. BUT HERE,
WHETHER THE INDIVIDUAL DISCIPLINARY ACTIONS CONSTITUTE A PATTERN OF
HARASSMENT WHICH RESULTED IN A CONSTRUCTIVE DISCHARGE IS THE "ISSUE" FOR
THE PURPOSES OF THE ABOVE QUOTED LANGUAGE, AND NOT WHETHER THE LETTERS
OF REPRIMAND WERE, INDEED, WARRANTED. ACCORDINGLY, I FIND RESPONDENT'S
CONTENTION OF PRECLUDED JURISDICTION DUE TO PRIOR GRIEVANCE PROCEEDINGS
TO BE WITHOUT MERIT.
RESONDENT'S THIRD AND MOST CONVINCING ARGUMENT IS THAT THE COMPLAINT
CONTAINS ISSUES THAT CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE
AND THUS MAY NOT BE RAISED UNDER SECTION 19 OF THE ORDER. /8/ THE FIRST
SENTENCE OF SECTION 19(D), AS AMENDED, READS:
ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY
NOT BE RAISED UNDER THIS
SECTION. (EMPHASIS ADDED.)
IN DECIDING WHETHER THIS LANGUAGE ACTUALLY BARS JURISDICTION, WE MUST
CONSIDER WHETHER, GIVEN THE ISSUES INVOLVED, AN "APPEALS PROCEDURE"
WHERE THESE ISSUES COULD BE RAISED WAS AVAILABLE TO COMPLAINANT.
HERE, THE ISSUE IS CHARACTERIZED AS A "CONSTRUCTIVE DISCHARGE,"
WHICH, IN THE FEDERAL SERVICE, CONSTITUTES AN ADVERSE ACTION.
FURTHERMORE, IN TITLE 5 OF THE UNITED STATES CODE, AN ADVERSE ACTION IS
DEFINED AS "A REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS, FURLOUGH
WITHOUT PAY, OR REDUCTION IN RANK OR PAY." /9/ BUT A TRANSFER IS NOT
TANTAMOUNT TO A REMOVAL UNLESS THE TRANSFER WAS INVOLUNTARY. IN THIS
REGARD, THE FEDERAL PERSONEL MANUAL SUPPLEMENT 752-1, READS IN PERTINENT
PART:
A. GENERAL. (1) SEPARATIONS AND REDUCTIONS IN RANK OR PAY VOLUNTARILY
INITIATED BY AN
EMPLOYEE ARE BY THEIR VERY NATURE ACTIONS WHICH DO NOT REQUIRE THE
USE OF ADVERSE ACTION
PROCEDURES. ON THE OTHER HAND, A NORMALLY VOLUNTARY ACTION - I.E., A
RESIGNATION, OPTIONAL
RETIREMENT, OR REDUCTION IN RANK OR PAY AT THE EMPLOYEE'S REQUEST -
IS AN ADVERSE ACTION IF IT
IS OBTAINED BY DURESS, TIME PRESSURE, INTIMIDATION, OR DECEPTION.
WHETHER AN ACTION IS
VOLUNTARY OR INVOLUNTARY IS DETERMINED NOT BY THE FORM OF THE ACTION,
BUT BY THE CIRCUMSTANCES
THAT PRODUCED IT. (EMPHASIS SUPPLIED.)
THEREFORE, THE TRANSFER BY COMPLAINANT, TO BE A CONSTRUCTIVE
DISCHARGE, WOULD HAVE TO BE CONSIDERED AN INVOLUNTARILY INITIATED
ACTION, OBTAINED UNDER DURESS AND INTIMIDATION - WHICH, GIVEN THE ABOVE,
CLEARLY CONSTITUTES AN ADVERSE ACTION.
THE QUESTION THEN BECOMES, IF COMPLAINANT WERE THE SUBJECT OF AN
ADVERSE ACTION, WAS THERE AN "APPEALS PROCEDURE" AVAILABLE TO HIM FOR
THE PURPOSE OF SECTION 19(D)? ADMINISTRATIVE LAW JUDGE DOWD, IN A
SIMILAR CASE, HAS SUGGESTED CERTAIN CRITERIA WHICH AN APPEALS PROCEDURE
SHOULD MEET IN ORDER TO SATISFY SECTION 19(D) OF THE ORDER:
BASED UPON MY REVIEW OF THE MATTER, I CONCLUDE THAT IN ORDER FOR AN
APPEALS PROCEDURE TO
COME WITHIN THE MEANING OF 19(D) IT MUST MEET THE FOLLOWING CRITERIA:
(1) IT MUST BE AN
APPEALS PROCEDURE IN WHICH THE UNFAIR LABOR PRACTICE ISSUE "CAN BE
RAISED;" AND (2) IT MUST BE
AN APPEALS PROCEDURE PROVIDING FOR THIRD-PARTY REVIEW OF THE UNFAIR
LABOR PRACTICE ISSUE SO
RAISED. (AT PAGE 15) /10/
IN THE INSTANT CASE, SINCE COMPLAINANT WAS IN THE COMPETITIVE SERVICE
HE WAS SUBJECT TO 5 C.F.R. PARTS 752 AND 771 AND THE CORRESPONDING
F.P.M. SECTIONS. SUBPART B OF PART 752 SETS OUT THE MECHANICS WHEREBY
ONE IN COMPLAINANT'S POSITION CAN CONTEST AN ADVERSE ACTION TAKEN BY AN
AGENCY. /11/ MOREOVER, THE PROCEDURES FOR APPEALING AN AGENCY DECISION,
AS GUARANTEED BY STATUTE /12/, ARE SET FORTH IN SUBPART B OF PART 771.
IF WE WERE NOT WO APPLY JUDGE DOWD'S TEST FOR ADEQUACY OF THE "APPEALS
PROCEDURE" UNDER 19(D), WE WOULD SEE: 1) THAT THE REGULATIONS
SPECIFICALLY DIRECT THAT ANY UNFAIR LABOR PRACTICE CHARGE BE RAISED;
/13/ AND 2) THAT THIRD PARTY APPELLATE REVIEW IS AVAILABLE WERE THE
UNFAIR LABOR PRACTICE CHARGE COULD BE CONSIDERED, TO THE EXTENT THAT
FURTHER APPEAL TO THE CIVIL SERVICE COMMISSION IS AVAILABLE AFTER THE
AGENCY APPELLATE DECISION IS ISSUED. /14/ FURTHER EVIDENCE OF "THIRD
PARTY REVIEW" IS ILLUSTRATED BY REGULATIONS WHICH REQUIRE AS ARBITERS
DISINTERESTED EXAMINERS AND AUTHORIZED OFFICIALS OF A HIGHER
ADMINISTRATIVE LEVEL THAN THE ORIGINAL DECISION MAKER. /15/ THEREFORE,
EVEN APPLYING THESE DEMANDING CRITERIA, IT IS APPARENT THAT COMPLAINANT
HAD, INDEED, AN APPEALS PROCEDURE AVAILABLE TO HIM. (SEE TEXAS AIR
NATIONAL GUARD, A/SLMR #336.)
THE ASSISTANT SECRETARY HAS ALREADY TREATED THE ISSUE OF THE SECTION
19(D) BAR TO JURISDICTION IN UNITED STATES POSTAL SERVICE, BERWYN POST
OFFICE, ILLINOIS, A/SLMR NO. 272. THERE, THE ASSISTANT SECRETARY
STATED IN SUMMARY:
IT IS MY VIEW THAT, HAVING FOUND THAT THE AGENCY APPEALS PROCEDURE
HEREIN WAS AVAILABLE TO
THE COMPLAINANT AND THAT UNDER SECTION 19(D) I AM WITHOUT AUTHORITY
TO REVIEW THE APPLICATION
OF SUCH PROCEDURE AS TO THE COMPLAINANT, FURTHER PROCEEDINGS ON THE
INSTANT COMPLAINT ARE
UNWARRANTED. (PAGE 5) /16/
SINCE I HAVE FOUND THAT THE AGENCY APPEALS PROCEDURES WERE AVAILABLE
TO COMPLAINANT, I AM CONSTRAINED TO FIND THE ASSISTANT SECRETARY WITHOUT
AUTHORITY UNDER SECTION 19(D) TO PROCEED ON A SECTION 19 COMPLAINT.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED IN ITS ENTIRETY.
DATED: JULY 11, 1974
WASHINGTON, D.C.
/1/ ALTHOUGH THE COMPLAINT WAS ORIGINALLY FILED BY BOTH COMPLAINANT
GOMEZ AND LODGE 81, FRATERNAL ORDER OF POLICE, THE REGIONAL
ADMINISTRATOR ON OCTOBER 1, 1973, DISMISSED LODGE 81 AS A PARTY FOR
FAILING TO COMPLY WITH SECTION 203.2 OF THE RULES AND REGULATIONS.
/2/ THE CHARGE AND THE SUBSEQUENT COMPLAINT NAME THE NAVAL
PUBLICATIONS AND FORMS CENTER AS THE RESPONDENT. HOWEVER, ON JULY 1,
1973, DUE TO AN ADMINISTRATIVE CHANGE, THE NAME OF THE RESPONDENT WAS
CHANGED FROM THE NAVAL PUBLICATIONS AND FORMS CENTER TO THE AVIATION
SUPPLY OFFICE. AT THE HEARING HEREIN THE PLEADINGS WERE AMENDED TO
REFLECT THIS CHANGE IN NAME.
/3/ ON SEPTEMBER 25, 1973, COMPLAINANT, THROUGH COUNSEL, WITHDREW THE
SECTION 19(A)(6) ALLEGATION.
/4/ STIPULATED BY COUNSEL (T.515).
/5/ A LETTER OF REPRIMAND IS A FORMAL DISCIPLINARY PROCEDURE AND IS
PLACED IN THE INVOLVED EMPLOYEE'S PERSONNEL FILE FOR THE RECKONING
PERIOD - GENERALLY ONE YEAR.
/6/ A LETTER OF CAUTION IS AN INFORMAL DISCIPLINARY ACTION WHICH IS
NOT PLACED IN THE EMPLOYEE'S FILE BUT IS RETAINED BY THE ISSUING
OFFICER.
/7/ F.P.M. SUPPLEMENT 990-1, BOOK III, SECTION 771.305(B).
/8/ RESPONDENT HAS RAISED THIS ARGUMENT EARLIER IN THE CASE AND TWICE
DURING THE HEARING BY WAY OF MOTION TO DISMISS. THE MOTION WAS, ON EACH
OCCASION, DENIED.
/9/ 5 U.S.C. 7511(2).
/10/ VETERANS ADMINISTRATION, VETERANS BENEFITS OFFICE AND FLONOIRAL
MERRITT, CASE NO. 22-3533(CA) (ALJ REPORT AND RECOMMENDATIONS, MAY 24,
1973), AFF'D, A/SLMR NO. 296.
/11/ I FIND THAT COMPLAINANT IS COVERED BY BOTH THESE PARTS 5 C.F.R.
752.201 AND 771.103.
/12/ 5 U.S.C. 7701
/13/ 5 U.S.C. 771.106(A) READS:
SECTION 771.106 ALLEGATIONS OF UNFAIR LABOR PRACTICES. (A) AN
ALLEGATION OF AN UNFAIR
LABOR PRACTICE MADE IN CONNECTION WITH AN APPEAL OR GRIEVANCE AND
PROCESSED UNDER THIS
PART; HOWEVER, THE DECISION ON THE APPEAL OR GRIEVANCE MAY NOT BE
CONSTRUED AS AN UNFAIR LABOR
PRACTICE DECISION UNDER EXECUTIVE ORDER 11491, AS AMENDED.
/14/ 5 C.F.R. 771.22 READS IN PART:
SECTION 771.22 FURTHER APPEAL AFTER AGENCY APPELLATE DECISION.
(A) IF THE AGENCY HAS ONLY ONE APPELLATE LEVEL, THE EMPLOYEE IS
ENTITLED TO APPEAL TO THE COMMISSION ON RECEIPT OF THE AGENCY APPELLATE
DECISION.
(B) IF THE AGENCY HAS MORE THAN ONE APPELLATE LEVEL, THE EMPLOYEE IS
ENTITLED TO APPEAL EITHER TO THE AGENCY SECOND LEVEL OR TO THE
COMMISSION ON RECEIPT OF THE AGENCY FIRST-LEVEL APPELLATE DECISION. IF
THE EMPLOYEE APPEALS TO THE AGENCY SECOND LEVEL, HE FORFEITS HIS RIGHT
TO APPEAL TO THE COMMISSION. IF THE EMPLOYEE APPEALS TO THE COMMISSION,
HE FORFEITS HIS RIGHT TO APPEAL TO THE AGENCY SECOND LEVEL.
/15/ 5 C.F.R. 771.209 AND 771.218.
/16/ EVEN THOUGH THIS CASE WAS BROUGHT UNDER THE UNAMENDED ORDER, THE
EFFECT IS THE SAME, SINCE THE EXISTENCE OF AN APPEALS PROCEDURE, PER SE,
BARRED JURISDICTION BEFORE AND AFTER THE AMENDMENT. WHERE GRIEVANCE
PROCEDURES WERE PRESENT, THE AMENDMENT GAVE A COMPLAINANT AN ELECTION OF
RECOURSE UNDER EITHER THE GRIEVANCE PROCEDURES OR THE ORDER.
VANDENBERG AFB, 4392D AEROSPACE
SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA
A/SLMR NO. 435
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001, VANDENBERG AFB,
CALIFORNIA (COMPLAINANT) AGAINST THE RESPONDENT ACTIVITY ALLEGING THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
11491, AS AMENDED, BY ITS CONDUCT AT A MARCH 12, 1973, NEGOTIATION
SESSION.
THE INCIDENT WHICH GAVE RISE TO THE UNFAIR LABOR PRACTICES IN THIS
CASE OCCURRED ON MARCH 12, 1973, AT A REGULARLY SCHEDULED NEGOTIATION
SESSION BETWEEN THE PARTIES HEREIN. PRIOR TO THIS SESSION, THE PARTIES
HAD MET ON APPROXIMATELY SEVEN OR EIGHT OCCASIONS BEGINNING IN DECEMBER
1972. THE PURPOSE OF THE MEETINGS WAS TO ARRIVE AT A NEGOTIATED
AGREEMENT FOR THE PROFESSIONAL UNIT AT THE BASE. THE COMPLAINANT
REPRESENTED BOTH THE PROFESSIONALS AND NONPROFESSIONALS IN TWO
SEPARATELY CERTIFIED UNITS. PRIOR TO THE MARCH 12 MEETING, AT THE
SUGGESTION OF THE COMPLAINANT, THE PARTIES ATTEMPTED UNSUCCESSFULLY TO
ENGAGE IN JOINT NEGOTIATIONS LEADING TO A SINGLE AGREEMENT COVERING BOTH
UNITS. HOWEVER, THE RESPONDENT RECEIVED PERMISSION FROM THE COMPLAINANT
TO PLACE ON THE PARTIES' AGENDA AT THE MEETING TO TAKE PLACE ON MARCH
12, 1973-- WHICH MEETING PERTAINED ONLY TO THE PROFESSIONAL UNIT,-- THE
CONCEPT OF DUAL SIMULTANEOUS NEGOTIATIONS LEADING TO TWO SEPARATE
AGREEMENTS IN THE TWO UNITS.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT AT THE MARCH 12 MEETING THE
COMPLAINANT'S REPRESENTATIVE DISCUSSED MATTERS EXTRANEOUS TO THE AGENDA
FOR APPROXIMATELY TWO HOURS, EVEN THOUGH IT WAS THE PRACTICE OF THE
PARTIES TO FOLLOW STRICTLY THE ITEMS THAT HAD BEEN SET FORTH IN THE
AGENDA FOR DISCUSSION. HOWEVER, AFTER TWO HOURS DURING WHICH NO
AGREEMENT WAS REACHED UPON THE ITEMS DISCUSSED, THE RESPONDENT ATTEMPTED
TO MOVE TO THE JOINT NEGOTIATIONS QUESTION WHICH WAS ON THE REGULARLY
SCHEDULED AGENDA. THE COMPLAINANT REFUSED TO DISCUSS THE MATTER STATING
THAT ITS PROPOSALS FOR JOINT NEGOTIATIONS HAS BEEN DISCUSSED TOO LONG
WITHOUT AGREEMENT. AT THIS POINT, THE RESPONDENT FELT THAT THE
COMPLAINANT HAD BREACHED THE AGREEMENT EXPRESSED IN THE PARTIES' GROUND
RULES AND IT ANNOUNCED THE NEGOTIATIONS TO BE AT AN IMPASSE AND THAT IT
WOULD REQUEST THE INTERVENTION OF THE FEDERAL MEDIATION AND CONCILIATION
SERVICE. THE COMPLAINANT'S REPRESENTATIVE SOUGHT TO DISCUSS ANOTHER
AGENDA ITEM AND THE RESPONDENT REFUSED, STATING THAT NEGOTIATIONS SHOULD
BE SUSPENDED PENDING MEDIATION OF THE IMPASSE. THE RESPONDENT THEN
STATED THAT IT WAS NOT OBLIGATED TO NEGOTIATE THE SAME SUBJECT MATTER
TWICE WITH THE SAME UNION AND WOULD NOT NEGOTIATE FURTHER UNLESS THE
GROUND RULES WERE AMENDED. WHEN THE PARTIES COULD NOT ARRIVE AT AN
AGREEMENT AS TO HOW TO PROCEED, THE RESPONDENT'S BARGAINING TEAM LEFT
THE CONFERENCE ROOM AND THE BARGAINING SESSION ENDED. THE FOLLOWING
DAY, THE RESPONDENT CALLED THE COMPLAINANT AND OFFERED TO CONTINUE
NEGOTIATIONS WITHOUT DISCUSSION OF THE ITEM IN QUESTION AND WAS INFORMED
THAT THE OFFER WOULD BE CONSIDERED BUT THAT AN UNFAIR LABOR PRACTICE
CHARGE MIGHT BE FILED. ALSO, ON THAT DAY, ANOTHER MEMBER OF THE
RESPONDENT'S NEGOTIATING TEAM INFORMALLY CONTACTED THE COMPLAINANT
REQUESTING THAT THE PARTIES CONTINUE NEGOTIATIONS STATING THAT THE
RESPONDENT WAS READY TO OMIT THE MATTER OVER WHICH THE DISAGREEMENT HAD
ARISEN. THEREAFTER, THE COMPLAINANT CHARGED THE RESPONDENT WITH AN
UNFAIR LABOR PRACTICE BASED ON THE MARCH 12 INCIDENT. THE RESPONDENT
TOOK THE POSITION THAT ITS NEGOTIATING TEAM WOULD BE PRESENT FOR THE
NEXT BARGAINING SESSION AND THAT IT WOULD THEN BE PREPARED "TO NEGOTIATE
SERIOUSLY ON ANY APPROPRIATE MATTER." DESPITE SOME INFORMAL MEETINGS
BETWEEN THE PARTIES IN JUNE 1973, ARRANGED BY A COMMISSIONER OF THE
FEDERAL MEDIATION AND CONCILIATION SERVICE, NO FORMAL MEETING BETWEEN
THE PARTIES HAS TAKEN PLACE CONCERNING AN AGREEMENT COVERING THE
PROFESSIONAL EMPLOYEE UNIT DESPITE REPEATED REQUESTS BY THE RESPONDENT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT, ALTHOUGH THE RESPONDENT WAS
GREATLY DISAPPOINTED AND SURPRISED BY THE COMPLAINANT'S REFUSAL TO
DISCUSS THE JOINT NEGOTIATION QUESTION, IT WAS NOT A SUBJECT OVER WHICH
MANAGEMENT COULD INSIST TO IMPASSE BECAUSE THE COMPLAINANT WAS NOT
REQUIRED TO BARGAIN AWAY ITS LEGAL RIGHT TO SEPARATE BARGAINING FOR
SEPARATE AGREEMENTS FOR THE SEPARATELY CERTIFIED UNITS. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED, THEREFORE, THAT THE RESPONDENT HAD
COMMITTED A "TECHNICAL VIOLATION" OF SECTION 19(A)(6) WHEN IT WALKED OUT
OF THE MEETING IN THAT IT DID NOT HAVE A RIGHT TO INSIST TO THE POINT OF
IMPASSE THAT THE COMPLAINANT DISCUSS ITS PROPOSAL FOR DUAL SIMULTANEOUS
NEGOTIATIONS. HOWEVER, HE FURTHER FOUND THAT THE VIOLATION WAS RENDERED
"MOOT" THE FOLLOWING DAY WHEN THE COMPLAINANT WAS ADVISED TWICE THAT THE
RESPONDENT HAD RECEDED FROM ITS POSITION AND WAS WILLING TO RETURN TO
THE BARGAINING TABLE AND, THEREFORE, NO REMEDIAL ORDER WAS REQUIRED.
ACCORDINGLY, HE RECOMMENDED THAT THE COMPLAINT IN THIS MATTER BE
DISMISSED IN ITS ENTIRETY.
THE ASSISTANT SECRETARY CONCLUDED THAT UNDER THE CIRCUMSTANCES OF
THIS CASE THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY
UNILATERALLY TERMINATING THE MARCH 12, 1973, MEETING BASED ON AN ALLEGED
IMPASSE WITH RESPECT TO ONE SUBJECT OF BARGAINING AND REFUSING TO MEET
AND CONFER ON OTHER SUBJECTS OF BARGAINING. FURTHER, THE ASSISTANT
SECRETARY FOUND THAT SUCH CONDUCT ALSO VIOLATED SECTION 19(A)(1) OF THE
EXECUTIVE ORDER. THE ASSISTANT SECRETARY, HOWEVER, DISAGREED WITH THE
ADMINISTRATIVE LAW JUDGE THAT UNDER THE CIRCUMSTANCES HEREIN THE
RESPONDENT'S IMPROPER CONDUCT WAS MERELY A "TECHNICAL VIOLATION" WHICH
DID NOT REQUIRE A REMEDIAL ORDER.
HAVING FOUND THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER, AND THAT SUCH CONDUCT REQUIRED THE ISSUANCE OF A REMEDIAL
ORDER, THE ASSISTANT SECRETARY ISSUED SUCH AN ORDER.
VANDENBERG AFB 4392D AEROSPACE
SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1001,
VANDENBERG AFB, CALIFORNIA
ON JUNE 10, 1974, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT'S CONDUCT IN UNILATERALLY DECLARING A NEGOTIATION
IMPASSE CONCERNING ITS PROPOSAL FOR DUAL SIMULTANEOUS BARGAINING,
WALKING OUT OF THE BARGAINING SESSION, AND REFUSING TO DISCUSS OTHER
SUBJECTS, WAS "UNLAWFUL." HOWEVER, HE FOUND SUCH CONDUCT TO CONSTITUTE
MERELY A "TECHNICAL VIOLATION" WHICH WAS RENDERED "MOOT" BY SUBSEQUENT
ACTIONS ON THE PART OF THE RESPONDENT. THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED, THEREFORE, THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS AND A SUPPORTING BRIEF
WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE INSTANT COMPLAINT, AS AMENDED, ALLEGES THAT THE RESPONDENT
REFUSED TO NEGOTIATE IN VIOLATION OF SECTION 19(A)(1) AND (6) OF THE
ORDER BY ITS CONDUCT AT A MARCH 12, 1973, NEGOTIATION SESSION BY
REFUSING TO BARGAIN WITH THE COMPLAINANT AND BY WALKING OUT OF THE
MEETING. IT IS ASSERTED THAT SUCH ACTIONS, AS WELL AS THE RESPONDENT'S
STATEMENT AT THE MEETING THAT IT WAS NOT OBLIGATED TO NEGOTIATE THE SAME
SUBJECT TWICE, CONSTITUTED AN IMPROPER REFUSAL TO NEGOTIATE.
I AGREE WITH THE ADMINISTRATIVE LAW JUDGE THAT, IN THE PARTICULAR
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT VIOLATED SECTION 19(A)(6) OF
THE ORDER BY UNILATERALLY TERMINATING THE PARTIES' MARCH 12, 1973,
NEGOTIATION SESSION BASED ON AN ALLEGED IMPASSE WITH RESPECT TO ONE
SUBJECT OF BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER SUBJECTS
OF BARGAINING. IN ADDITION, I FIND THAT SUCH CONDUCT ALSO CONSTITUTED
AN IMPROPER INTERFERENCE WITH EMPLOYEE RIGHTS IN VIOLATION OF SECTION
19(A)(1) OF THE ORDER. HOWEVER, I DISAGREE WITH THE ADMINISTRATIVE LAW
JUDGE'S CONCLUSION THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE
RESPONDENT'S IMPROPER CONDUCT CONSTITUTED MERELY A "TECHNICAL VIOLATION"
OF THE ORDER WHICH DID NOT REQUIRE A REMEDIAL ORDER. ACCORDINGLY, I
SHALL ORDER THAT THE RESPONDENT REMEDY ITS VIOLATION OF SECTION 19(A)(1)
AND (6) OF THE ORDER.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, I SHALL ORDER THE RESPONDENT TO CEASE AND DESIST THEREFROM AND
TAKE SPECIFIC AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS, HEREBY ORDERS THAT THE VANDENBERG AFB
4392D AEROSPACE SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO MEET AND CONFER IN GOOD FAITH WITH THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001, VANDENBERG AFB, CALIFORNIA,
BY UNILATERALLY TERMINATING SCHEDULED NEGOTIATION SESSIONS BASED ON AN
ALLEGED IMPASSE WITH RESPECT TO ONE SUBJECT OF BARGAINING AND REFUSING
TO MEET AND CONFER ON OTHER SUBJECTS OF BARGAINING.
(B) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001,
VANDENBERG AFB, CALIFORNIA, BY REFUSING TO MEET AND CONFER IN GOOD FAITH
WITH SUCH EXCLUSIVE REPRESENTATIVE BY UNILATERALLY TERMINATING SCHEDULED
NEGOTIATION SESSIONS BASED ON AN ALLEGED IMPASSE WITH RESPECT TO ONE
SUBJECT OF BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER SUBJECTS
OF BARGAINING.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 1001,
VANDENBERG AFB, CALIFORNIA, THAT IT WILL MEET AND CONFER IN GOOD FAITH
AND WILL NOT UNILATERALLY TERMINATE SCHEDULED NEGOTIATION SESSIONS BASED
ON AN ALLEGED IMPASSE WITH RESPECT TO ONE SUBJECT OF BARGAINING.
(B) POST AT THE VANDENBERG AFB 4392D AEROSPACE SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDING OFFICER OF THE 4392D AEROSPACE SUPPORT
GROUP, VANDENBERG AFB, CALIFORNIA, AND SHALL BE POSTED AND MAINTAINED BY
THE COMMANDING OFFICER OF THAT GROUP FOR 60 CONSECUTIVE DAYS THEREAFTER,
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDING
OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH WITH THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001, VANDENBERG AFB, CALIFORNIA,
BY UNILATERALLY TERMINATING SCHEDULED NEGOTIATION SESSIONS BASED ON AN
ALLEGED IMPASSE WITH RESPECT TO ONE SUBJECT OF BARGAINING AND REFUSING
TO MEET AND CONFER ON OTHER SUBJECTS OF BARGAINING.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES REPRESENTED
EXCLUSIVELY BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001,
VANDENBERG AFB, CALIFORNIA, BY REFUSING TO MEET AND CONFER IN GOOD FAITH
WITH SUCH EXCLUSIVE REPRESENTATIVE BY UNILATERALLY TERMINATING SCHEDULED
NEGOTIATION SESSIONS BASED ON AN ALLEGED IMPASSE WITH RESPECT TO ONE
SUBJECT OF BARGAINING AND REFUSING TO MEET AND CONFER ON OTHER SUBJECTS
OF BARGAINING.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN GATE AVENUE,
SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
VANDENBERG AFB 4392D AEROSPACE
SUPPORT GROUP, VANDENBERG AFB
CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001
VANDENBERG AFB, CALIFORNIA
CHARLES L. WIEST, JR., CAPTAIN USAF
HEADQUARTERS, 15TH AIR FORCE
JUDGE ADVOCATE OFFICE
MARCH AIR FORCE BASE, CALIFORNIA 92508
HOMER H. HOUSINGTON
NATIONAL FEDERATION OF EMPLOYEES
POST OFFICE BOX 870
RIALTO, CALIFORNIA 92376
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER
REFERRED TO AS THE ORDER) WAS HEARD BEFORE THE UNDERSIGNED ON NOVEMBER
1, 1973, PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON
SEPTEMBER 18, 1973, BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, SAN
FRANCISCO REGION. INVOLVED HEREIN IS THE AMENDED COMPLAINT OF LOCAL
1001 OF THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (NFFE) (HEREAFTER
REFERRED TO AS THE UNION) AGAINST VANDENBERG AIR FORCE BASE, CALIFORNIA
(HEREAFTER REFERRED TO AS THE ACTIVITY). THE AMENDED COMPLAINT ALLEGES
THAT THE ACTIVITY VIOLATED SECTION 19, SUBSECTIONS (A)(1) AND (6) OF THE
ORDER BY REFUSING TO BARGAIN WITH THE UNION AND BY WALKING OUT OF A
MARCH 12, 1973, NEGOTIATION SESSION. /1/
BOTH PARTIES WERE REPRESENTED BY COUNSEL AT THE HEARING AND WERE
AFFORDED FULL OPPORTUNITY TO EXAMINE AND CROSS-EXAMINE WITNESSES AND TO
ADDUCE RELEVANT EVIDENCE. THE ACTIVITY HAS FILED A POST HEARING BRIEF
WHICH HAS BEEN DULY CONSIDERED.
ON THE BASIS OF THE ENTIRE RECORD HEREIN AND MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDATIONS TO THE ASSISTANT SECRETARY.
1. COMPLAINANT IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF TWO
UNITS OF EMPLOYEES AT THE ACTIVITY: ONE COMPRISED OF ALL PROFESSIONAL
EMPLOYEES AND THE OTHER A BASE-WIDE UNIT INCLUDING ALL NONPROFESSIONAL,
NONSUPERVISORY, NONGUARD EMPLOYEES. AT THE TIME OF THE INCIDENT
COMPLAINED OF THEIR WAS A COLLECTIVE BARGAINING AGREEMENT IN EFFECT
BETWEEN THE ACTIVITY AND THE UNION FOR THE BASE-WIDE UNIT. THE
AGREEMENT WAS TO EXPIRE IN MAY OF 1973.
2. PREPARATORY TO NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE ACTIVITY AND THE UNIT OF PROFESSIONAL EMPLOYEES, THE PARTIES
NEGOTIATED AND AGREED UPON A MEMORANDUM OF AGREEMENT, /2/ SIGNED
NOVEMBER 15, 1972, WHICH WAS TO GOVERN THE CONDUCT OF CONTRACT TALKS.
3. SHORTLY THEREAFTER THE UNION SUBMITTED TO THE ACTIVITY PROPOSALS
FOR THE SUBSTANTIVE TERMS OF AN AGREEMENT. CONSISTENT WITH THE GROUND
RULES ESTABLISHED IN THE MEMORANDUM OF AGREEMENT THE ACTIVITY FILED
COUNTERPROPOSALS /3/ WITH THE UNION ON DECEMBER 21, 1972. NEGOTIATIONS
BEGAN WITH A MEETING BETWEEN THE PARTIES ON JANUARY 8, 1973. /4/ AT
SUBSEQUENT MEETINGS ON THE 15TH AND 22ND OF JANUARY THE PARTIES
DISCUSSED PROPOSALS FOR TERMS TO BE INCLUDED IN THE PROFESSIONAL UNIT
CONTRACT. THESE DISCUSSIONS CENTERED ON A UNION PROPOSAL TO INCLUDE AN
ARTICLE GOVERNING THE BASIC WORKWEEK AND HOURS OF WORK FOR
PROFESSIONALS. WHEN THE ACTIVITY REFUSED TO AGREE TO ITS INCLUSION THE
MATTER WAS TABLED.
4. AT THE JANUARY 29 NEGOTIATING SESSION MR. FRANCIS D. O'NEILL,
CHIEF UNION SPOKESMAN, ANNOUNCED THAT IT WAS HIS PERSONAL PREFERENCE,
/5/ IN THE INTERESTS OF ECONOMY OF TIME AND ENERGY, THAT THE ONGOING
NEGOTIATION FOR A CONTRACT FOR PROFESSIONALS BE COMBINED WITH UPCOMING
NEGOTIATIONS FOR A NEW CONTRACT FOR THE BASE-WIDE UNIT. THIS IDEA WAS
WELL RECEIVED BY THE ACTIVITY, WHICH PROMPTLY PROPOSED, BY LETTER DATED
FEBRUARY 2, THAT THE CURRENT NEGOTIATIONS BE EXPANDED TO INCLUDE BOTH
UNITS. /6/
5. AT THE REGULAR FEBRUARY 5 NEGOTIATING SESSION THE UNION
REPRESENTATIVES EXPRESSED APPROVAL OF THE CONCEPT OF JOINT NEGOTIATIONS.
THE ACTIVITY SPOKESMAN INDICATED THAT PROPOSED AMENDMENTS TO THE
MEMORANDUM OF AGREEMENT TO ALLOW FOR THE CHANGE IN NEGOTIATIONS WOULD BE
SUBMITTED. TALKS ON THE PROFESSIONAL UNIT CONTRACT WERE TO BE SUSPENDED
PENDING DECISION ON THE JOINT NEGOTIATIONS PROPOSAL. TO INSURE AGAINST
HAVING NEGOTIATIONS ON THE PROFESSIONAL CONTRACT STALLED INTERMINABLY,
THE PARTIES AGREED TO PLACING A DEADLINE OF MARCH 19 ON DISCUSSIONS
CONCERNING JOINT NEGOTIATIONS.
6. ON FEBRUARY 9 THE ACTIVITY SUBMITTED PROPOSED AMENDMENTS TO THE
MEMORANDUM OF AGREEMENT TO PROVIDE FOR JOINT NEGOTIATIONS. /7/ THE
UNION MEMBERSHIP APPROVED OF THE CONCEPT OF COMBINED BARGAINING AT A
MEETING HELD FEBRUARY 13TH.
7. DISCUSSION OF THE ACTIVITY'S FEBRUARY 9 PROPOSALS WAS INITIATED
AT A MEETING OF THE PARTIES HELD MARCH 5. NEGOTIATIONS HIT A SNAG ON
TWO ITEMS RAISED WITH REGARD TO THE PROPOSED CONTRACT FOR BOTH UNITS.
THE PARTIES COULD NOT REACH AGREEMENT ON THE DURATION OR TERM OF THE
PROPOSED JOINT CONTRACT OR ON PROVISIONS FOR A MID-TERM REOPENER. WITH
NEGOTIATIONS DEADLOCKED ON THESE ITEMS BOTH PARTIES ABANDONED THE
CONCEPT OF JOINT NEGOTIATIONS LEADING TO A SINGLE CONTRACT FOR BOTH
UNITS AND AGREED THAT AT THE NEXT BARGAINING SESSION SCHEDULED FOR MARCH
12, DISCUSSION WOULD RETURN TO A SEPARATE CONTRACT FOR THE PROFESSIONAL
UNIT.
8. AS REQUIRED BY THE NOVEMBER 15, 1972 MEMORANDUM OF AGREEMENT THE
UNION SUBMITTED A PROPOSED AGENDA FOR THE MARCH 12 MEETING PERTAINING
ONLY TO THE PROFESSIONAL UNIT. ON MARCH 9 THE ACTIVITY REQUESTED AND
RECEIVED PERMISSION FROM THE UNION TO ADD TO THE AGENDA, /8/ AS ITEM
NUMBER 1 FOR DISCUSSION, THE FOLLOWING ITEM: "MANAGEMENT LETTER OF 9
MARCH 1973 TRANSMITTING AN AMENDMENT TO THE GROUND RULES." THE
ACTIVITY'S LETTER /9/ SUGGESTED THE AMENDMENT OF THE MEMORANDUM OF
AGREEMENT TO ALLOW, IN THE ACTIVITY'S WORDS, FOR DUAL-SIMULTANEOUS
NEGOTIATIONS LEADING TO SEPARATE AGREEMENTS WITH EACH OF THE UNITS
REPRESENTED BY THE UNION. UNDER THE PROPOSED AMENDMENT THERE WOULD BE
NEGOTIATIONS WITH THE UNION OVER CONTRACT ITEMS SELECTED BY THE UNION
WITH THE CONCURRENCE OF THE ACTIVITY APPLICABLE SOLELY TO THE
PROFESSIONAL UNIT. ITEMS SELECTED BY THE UNION AND AGREED TO BY THE
ACTIVITY AS APPLICABLE BOTH TO THE PROFESSIONAL AND BASE-WIDE UNITS
WOULD BE JOINTLY NEGOTIATED AND MADE PART OF EACH CONTRACT.
9. AT THE OPENING OF THE MARCH 12 MEETING MR. O'NEIL BROUGHT UP FOR
DISCUSSION THE TOPICS WHICH HAD BEEN TABLED ON MARCH 5, THAT IS,
CONTRACT DURATION AND MID-TERM REOPENER. ALTHOUGH GROUND RULES FOR
NEGOTIATIONS PROVIDED THAT ONLY ITEMS ON THE AGENDA WERE TO BE
DISCUSSED, MR. RICHARD K. JACOBY, CHIEF ACTIVITY SPOKESMAN, PERMITTED
/10/ THIS VARIATION FROM THE RULES AND THE PARTIES SPENT APPROXIMATELY
TWO HOURS OF THE SCHEDULED FOUR-HOUR MEETING DISCUSSING THE ITEMS TABLED
ON MARCH 5.
FROM THE TESTIMONY OF THE UNION WITNESSES IT WOULD APPEAR THAT THEY
REGARDED THE DISCUSSION OF CONTRACT DURATION AND MID-TERM REOPENER AS
ALSO BEING PART OF A DISCUSSION OF AGENDA ITEM 1-- MANAGEMENT'S PROPOSAL
FOR DUAL-SIMULTANEOUS NEGOTIATIONS. THIS IS BECAUSE O'NEIL, IN HIS OWN
MIND, HAD DECIDED THAT CONSIDERATION OF THESE ISSUES SHOULD BE A
PRECONDITION TO AGREEING WITH ANY PROPOSAL FOR JOINT OR
DUAL-SIMULTANEOUS NEGOTIATIONS. HOWEVER, IT SEEMS QUITE CLEAR TO ME
THAT, IN THIS REGARD, THE RECORD SUPPORTS THE ACTIVITY'S CONTENTION THAT
THE DISCUSSIONS OF CONTRACT DURATION AND MID-TERM REOPENER WERE NOT
INTENDED TO BE PART OF AGENDA ITEM NUMBER 1; INDEED, THESE ITEMS WERE
NOT EVEN ON THE AGENDA AND IT WAS A COURTESY TO THE UNION THAT THEY WERE
EVEN DISCUSSED AT ALL. WHILE I CAN UNDERSTAND WHY THE UNION MAY HAVE
REASONED AS IT DID, THE FACT REMAINS THAT THESE TOPICS WERE NOT ON THE
AGENDA AND THEIR DISCUSSION WAS NOT EQUIVALENT TO DISCUSSING THE
ACTIVITY'S PROPOSAL WHICH WAS THE REAL AGENDA ITEM NUMBER 1.
10. WHEN NO AGREEMENT COULD BE REACHED ON THESE NONAGENDA TOPICS MR.
JACOBY TURNED TO ITEM NUMBER 1 ON THE AGENDA, THE ACTIVITY'S MARCH 9
PROPOSALS. MR. JACOBY ATTEMPTED TO EXPLAIN THE MEANING AND EFFECT OF
THE PROPOSED AMENDMENTS TO THE NEGOTIATING GROUND RULES BUT COULD NOT
ELICIT MUCH COMMENT FROM MR. O'NEIL WHO STATED THAT PROPOSALS FOR JOINT
NEGOTIATIONS HAD BEEN DISCUSSED TOO LONG WITHOUT AGREEMENT.
MR. JACOBY TESTIFIED THAT AT THIS JUNCTURE IN THE MEETING, TENSIONS
WERE HIGH AND NERVES FRAYED. JACOBY HAD COME TO THE MARCH 12 MEETING
WITH THE HOPE THAT IF IT WAS NOT POSSIBLE TO HAVE JOINT NEGOTIATIONS
LEADING TO ONE CONTRACT FOR BOTH UNITS, AT LEAST THE PARTIES COULD AGREE
TO JOINT NEGOTIATIONS ON CERTAIN SUBJECTS LEADING TO AGREEMENT ON
CONTRACT TERMS TO BE INCLUDED IN THE SEPARATE AGREEMENTS WITH EACH UNIT.
JACOBY TESTIFIED THAT HE WAS UPSET BECAUSE HE FELT THE UNION HAD
BREACHED ITS AGREEMENT EXPRESSED IN THE GROUND RULES TO AT LEAST
NEGOTIATE EACH ITEM THAT APPEARED ON THE AGENDA.
I AM SATISFIED, BASED UPON MY REVIEW OF THE ENTIRE RECORD, INCLUDING
THE CREDITED TESTIMONY OF JACOBY ON THIS POINT, THAT THE UNION
REPRESENTATIVES WERE REFUSING TO DISCUSS AGENDA ITEM NUMBER 1. I AM
SATISFIED THAT THE COMPLETE DETAILS AND RAMIFICATIONS OF MANAGEMENT'S
MARCH 9 PROPOSAL NEVER WERE FULLY EXPLAINED AND DEVELOPED BECAUSE OF THE
UNION'S UNWILLINGNESS TO SPEND ANY TIME ON THE SUBJECT. THE POINT I AM
MAKING IS NOT THAT THE UNION WAS REQUIRED TO AGREE ON THIS AGENDA ITEM
BUT, RATHER, THAT THE UNION FIRST ACQUIESCED IN PUTTING THIS ITEM ON THE
AGENDA AND THEN ACTED UNREASONABLY AND PERHAPS EVEN DISCOURTEOUSLY IN
REFUSING TO LET THE ACTIVITY EXPLAIN ITS POSITION. IT SEEMS QUITE CLEAR
THAT THE ACTIVITY'S PROPOSAL HAD NOT PREVIOUSLY BEEN CONSIDERED AT ANY
NEGOTIATION SESSION. ACCORDINGLY, IT WAS A NEW TOPIC TO BE PUT ON THE
TABLE FOR DISCUSSION BEFORE BEING ACCEPTED, REJECTED OR TABLED. IN THIS
REGARD, I NOTE THAT THERE IS NO EVIDENCE CONTRADICTING JACOBY'S
TESTIMONY THAT THE GROUND RULES WERE ACCOMPANIED BY AN UNDERSTANDING TO
AT LEAST NEGOTIATE EACH ITEM ON THE AGENDA.
11. AFTER THE UNION REFUSED TO DISCUSS THE ACTIVITY'S MARCH 9
PROPOSALS (AGENDA ITEM NUMBER 1), MR. JACOBY ANNOUNCED THAT HE
CONSIDERED THE NEGOTIATIONS TO BE AT AN IMPASSE AND THAT HE WOULD
REQUEST THE INTERVENTION OF THE FEDERAL MEDIATION AND CONCILIATION
SERVICE. MR. O'NEIL, SPEAKING FOR THE UNION, THEN SOUGHT TO MOVE ALONG
TO THE SECOND ITEM ON THE AGENDA. MR. JACOBY REFUSED, STATING THAT
NEGOTIATIONS SHOULD BE SUSPENDED PENDING MEDIATION OF THE IMPASSE.
ACCORDING TO O'NEIL, JACOBY THEN STATED THAT MANAGEMENT WAS NOT
OBLIGATED TO NEGOTIATE THE SAME SUBJECT MATTER TWICE WITH THE SAME UNION
AND WOULD NOT NEGOTIATE FURTHER UNLESS THE GROUND RULES WERE AMENDED.
JACOBY TESTIFIED THAT HE DID NOT RECALL HIS EXACT WORDS BUT DID NOT
BELIEVE HE MADE THAT STATEMENT. INSTEAD, HE TESTIFIED THAT HE HAD "USED
THE TERM DIFFICULT, 'IF NOT IMPOSSIBLE ' TO REACH AGREEMENT ON MATTERS
THAT WERE COMMON TO BOTH CONTRACTS." TO THE EXTENT THAT THERE IS ANY
CONFLICT IN THESE TWO VERSIONS, I RESOLVE IT IN FAVOR OF THE UNION, NOT
BASED UPON A CREDIBILITY RESOLUTION BUT, RATHER, MY EVALUATION OF ALL
THE TESTIMONY OF THESE WITNESSES, AND THE CORROBORATIVE TESTIMONY OF MS.
BROGAN. I ALSO FIND THAT THE IMPORT OF JACOBY'S TESTIMONY TENDS TO
SUPPORT O'NEIL'S RECOLLECTION.
AS TEMPERS ON BOTH SIDES OF THE BARGAINING TABLE FLARED, O'NEIL
ANNOUNCED THAT THE UNION MIGHT FILE AN UNFAIR LABOR PRACTICE CHARGE
AGAINST THE ACTIVITY IF JACOBY WOULD NOT PROCEED WITH DISCUSSION OF ITEM
NUMBER TWO ON THE AGENDA. WHEN THE PARTIES COULD NOT ARRIVE AT
AGREEMENT AS TO HOW TO PROCEED, THE ACTIVITY BARGAINING TEAM LEFT THE
CONFERENCE ROOM AND THE SESSION ENDED.
12. ON THE DAY FOLLOWING THE INCIDENT, MARCH 13, JACOBY MET WITH HIS
TEAM AND DETERMINED THAT EVEN THOUGH THEY FELT THEY WOULD BE UPHELD ON
ANY EVALUATION OF THE IMPASSE, IT WOULD BE MORE PRACTICAL IN TERMS OF
GETTING AN AGREEMENT AND SHOWING GOOD FAITH TO RESUME NEGOTIATIONS.
ACCORDINGLY, JACOBY TELEPHONED O'NEIL AND TOLD HIM THAT THE ACTIVITY WAS
PREPARED TO RETURN TO THE BARGAINING TABLE TO CONTINUE NEGOTIATIONS ON
THE PROFESSIONAL UNIT CONTRACT. ACCORDING TO JACOBY, O'NEIL INDICATED
THAT THE OFFER WOULD BE CONSIDERED, BUT THAT AN UNFAIR LABOR PRACTICE
CHARGE MIGHT BE FILED ON THE INCIDENT.
ALSO ON THE 13TH OF MARCH JAMES A HUNT, A MEMBER OF THE ACTIVITY
BARGAINING TEAM, HAD AN INFORMAL DISCUSSION WITH O'NEIL ON A PARKING LOT
LOCATED ON THE ACTIVITY. HUNT TESTIFIED THAT HE INFORMED O'NEIL THAT
THE ACTIVITY BARGAINING REPRESENTATIVES HAD DECIDED NOT TO STAND AT
IMPASSE, THAT THE FEDERAL MEDIATION AND CONCILIATION SERVICE WAS NOT
GOING TO BE CONTACTED AND THAT THE ACTIVITY WAS READY TO RESUME
NEGOTIATIONS ON THE ITEMS OF MARCH 12 AGENDA, SKIPPING OVER ITEM NUMBER
1 FROM WHICH THE FUROR HAD ARISEN.
13. BY LETTER DATED MARCH 15 MR. O'NEIL, WRITING FOR THE UNION,
FILED OFFICIAL CHARGES AGAINST THE ACTIVITY FOR THE ACTIONS OF THE
ACTIVITY NEGOTIATING TEAM IN THE MARCH 12 MEETING. THE ACTIVITY
RESPONDED TO THE UNION CHARGE ON MARCH 16 WITH A LETTER BY COLONEL W.
A. LENZ, CHIEF OF THE PERSONNEL DIVISION. /11/ THE LETTER ANNOUNCED
THAT THE MANAGEMENT NEGOTIATING TEAM WOULD BE PRESENT FOR THE NEXT
SCHEDULED BARGAINING SESSION ON MARCH 19 AND WOULD THEN BE PREPARED "TO
NEGOTIATE SERIOUSLY ON ANY APPROPRIATE MATTER." THE LETTER STATED THAT
THIS "CONSTITUTES MANAGEMENT'S DECISION ON YOUR CHARGE." BY LETTER OF
THE SAME DATE MR. O'NEIL INFORMED MR. JACOBY THAT A FORMAL COMPLAINT
WOULD SOON BE FILED WITH THE DEPARTMENT OF LABOR, AND THAT PENDING
RESOLUTION BY THE ASSISTANT SECRETARY THE UNION WISHED TO SUSPEND
NEGOTIATIONS. /12/
14. AT SOME TIME IN JUNE OF 1973, WHILE NEGOTIATIONS WERE STILL
STALLED, COMMISSIONER SWIEGART OF THE FEDERAL MEDIATION AND CONCILIATION
SERVICE ON HIS OWN INITIATIVE CALLED THE TWO SIDES TOGETHER IN AN
ATTEMPT TO SETTLE THEIR DIFFERENCES. /13/ FROM THE DATE OF THAT MEETING
TO THE DATE OF THE HEARING SEVERAL INFORMAL CONFERENCES HAD BEEN HELD
BETWEEN THE PARTIES WITH REGARD TO A CONTRACT FOR THE UNIT OF
PROFESSIONAL EMPLOYEES. THE ACTIVITY HAS MADE REPEATED OVERTURES TO THE
UNION TO RESUME FORMAL TALKS BUT THE UNION HAS REFUSED, PENDING
RESOLUTION OF THE INSTANT COMPLAINT.
THE COMPLAINT ALLEGES THAT THE ACTIVITY REFUSED TO NEGOTIATE IN
VIOLATION OF SECTION 19(A)(6), (1) AND (2), BY ITS CONDUCT AT THE MARCH
12 NEGOTIATION MEETING. SPECIFICALLY, IT IS ALLEGED THAT THE ACTIVITY'S
REFUSAL TO DISCUSS AGENDA ITEM NUMBER 2, COUPLED WITH ITS WALKING OUT OF
THE MEETING AND ITS STATEMENT THAT IT WAS NOT OBLIGATED TO NEGOTIATE THE
SAME SUBJECT TWICE, ALL ADDS UP TO A REFUSAL TO NEGOTIATE.
AS NOTED IN PARAGRAPH 10 HEREIN, JACOBY WAS LOOKING FORWARD AT THIS
MEETING TO DISCUSSING MANAGEMENT'S PROPOSAL FOR DUAL-SIMULTANEOUS
NEGOTIATIONS LEADING TO SEPARATE CONTRACTS. JACOBY'S HIGH HOPES WERE
BASED ON THE TELEPHONE CALL FROM O'NEIL ON MARCH 9, AS DISCUSSED IN
PARAGRAPH 8 HEREIN. IT WAS, THEREFORE, WITH GREAT SURPRISE AND
DISAPPOINTMENT THAT JACOBY LEARNED-- AFTER SPENDING 2 HOURS DISCUSSING
NONAGENDA TOPICS-- THAT THE UNION WAS UNWILLING TO EVEN DISCUSS WHAT
APPEARED ON THE AGREED UPON AGENDA AS ITEM NUMBER 1; I.E., THE PROPOSAL
FOR DUAL-SIMULTANEOUS NEGOTIATIONS. THE PROBLEM, HOWEVER, IS THE MANNER
IN WHICH THE ACTIVITY REACTED TO THE UNION'S UNWILLINGNESS TO DISCUSS
THIS TOPIC.
WHILE I CAN UNDERSTAND THE ACTIVITY'S DISAPPOINTMENT IN NOT BEING
ABLE TO AT LEAST DISCUSS, NO LESS REACH AGREEMENT, ITS PROPOSAL FOR
DUAL-SIMULTANEOUS BARGAINING, NEVERTHELESS, IT WAS CHILDISH AND, INDEED,
UNLAWFUL TO UNILATERALLY DECLARE THE NEGOTIATIONS AT IMPASSE AND WALK
OUT OF THE MEETING. IN THE FIRST PLACE, THE MERE FACT THAT ONE PART
BELIEVES AN IMPASSE EXISTS OVER A PARTICULAR SUBJECT DOES NOT GIVE THAT
PARTY A RIGHT TO UNILATERALLY DECLARE AN IMPASSE AND THEN REFUSE TO
DISCUSS OTHER SUBJECTS. THE WHOLE PROCESS OF COLLECTIVE BARGAINING
INCLUDES "GIVE AND TAKE," COMPROMISE, AND CONCESSIONS ABOUT A NUMBER OF
CONTRACT ITEMS. IN THE SECOND PLACE, AGENDA ITEM NUMBER 1--
DUAL-SIMULTANEOUS BARGAINING-- IS NOT THE TYPE OF BARGAINING SUBJECT
OVER WHICH MANAGEMENT CAN INSIST TO IMPASSE BECAUSE A UNION MAY NOT BE
REQUIRED TO BARGAIN AWAY ITS LEGAL RIGHT TO SEPARATE BARGAINING FOR
SEPARATE CONTRACTS FOR SEPARATELY CERTIFIED UNITS. /14/
ACCORDINGLY, I CONCLUDE THAT AS OF MARCH 12, WHEN THE ACTIVITY WALKED
OUT OF THE MEETING, IT HAD COMMITTED A TECHNICAL VIOLATION OF SECTION
19(A)(6) OF THE EXECUTIVE ORDER IN THAT IT DID NOT HAVE A RIGHT TO
INSIST, TO THE POINT OF IMPASSE, THAT THE UNION DISCUSS ITS PROPOSAL FOR
DUAL-SIMULTANEOUS NEGOTIATIONS. HOWEVER, I FURTHER FIND THAT THIS
VIOLATION WAS RENDERED MOOT THE FOLLOWING DAY WHEN THE UNION WAS ADVISED
TWICE, BY HUNT AND ALSO BY JACOBY, THAT THE ACTIVITY HAD RECEDED FROM
ITS POSITION AND WAS WILLING TO RETURN TO THE BARGAINING TABLE. IN
THESE CIRCUMSTANCES, I CANNOT UNDERSTAND WHY THE UNION REFUSED TO ACCEPT
THIS OFFER BY THE ACTIVITY. EVEN IF THE UNION HAD SOME DOUBT ABOUT THE
ACTIVITY'S GOOD FAITH, IT COULD QUICKLY TEST THIS GOOD FAITH BY
RETURNING TO THE BARGAINING TABLE. INSTEAD, THE UNION INSISTED UPON
FILING AN UNFAIR LABOR PRACTICE CHARGE TO WHICH THE ACTIVITY PROMPTLY
RESPONDED, BY LETTER FROM COLONEL LENZ, THAT THE ACTIVITY'S DECISION
WITH RESPECT TO THE CHARGE WAS TO "NEGOTIATE SERIOUSLY ON ANY
APPROPRIATE MATTER." THERE IS NO EVIDENCE IN THE RECORD TO SUGGEST THAT
THE ACTIVITY HAD IN MIND ANYTHING BUT TO DO PRECISELY WHAT AN ASSISTANT
SECRETARY'S ORDER WOULD ACCOMPLISH IF A VIOLATION WERE FOUND, I.E., TO
ORDER THE ACTIVITY BACK TO THE BARGAINING TABLE. I CONCLUDE THAT AS OF
THE DATE THAT THE UNFAIR LABOR PRACTICE CHARGE WAS FILED, THE ACTIVITY
WAS NOT INSISTING TO IMPASSE UPON MULTI-UNIT BARGAINING AS A CONDITION
PRECEDENT TO BARGAINING. THEREFORE, I RECOMMEND THAT NO VIOLATION OF
SECTION 19(A)(6), (1) AND (2) OF THE EXECUTIVE ORDER BE FOUND.
IN THE LIGHT OF THE FOREGOING, I FURTHER CONCLUDE THAT THE UNION'S
CONDUCT IN THIS ENTIRE MATTER, BOTH AT THE MARCH 12 MEETING AND
THEREAFTER, RAISES A SERIOUS QUESTION AS TO ITS OWN GENUINE WILLINGNESS
TO BARGAIN IN GOOD FAITH. IT IS NOTED, HOWEVER, THAT APPARENTLY THE
ACTIVITY DID NOT FILE AN UNFAIR LABOR PRACTICE CHARGE AGAINST THE UNION.
INSTEAD, THE ACTIVITY HAS ATTEMPTED TO BARGAIN WITH THE UNION, DESPITE
THE UNION'S APPARENT UNWILLINGNESS TO DO SO, AT THE SAME TIME THAT IT IS
BARGAINING IN GOOD FAITH WITH THE SAME UNION FOR A CONTRACT GOVERNING A
DIFFERENT UNIT AT THE SAME LOCATION.
ON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND
THAT THE COMPLAINT IN THIS MATTER BE DISMISSED IN ITS ENTIRETY.
DATED: JUNE 10, 1974
WASHINGTON, D.C.
/1/ THE ORIGINAL COMPLAINT FILED ON MARCH 20, 1973, MADE
SUBSTANTIALLY THE SAME ALLEGATIONS AS THE AMENDED COMPLAINT. IT
CHARGED, HOWEVER, THAT SECTION 19(A)(2) HAD ALSO BEEN VIOLATED BY THE
ACTIVITY'S ACTIONS.
/2/ COMPLAINANT'S EXHIBIT NO. 1.
/3/ COMPLAINANT'S EXHIBIT NO. 2.
/4/ UNLESS OTHERWISE INDICATED ALL DATES HEREINAFTER MENTIONED ARE IN
1973.
/5/ I ASSUME O'NEIL WAS SPEAKING IN HIS REPRESENTATIVE CAPACITY.
CERTAINLY, THE ACTIVITY WAS WARRANTED IN SO CONCLUDING.
/6/ COMPLAINANT'S EXHIBIT NO. 3.
/7/ COMPLAINANT'S EXHIBIT NO. 4.
/8/ COMPLAINANT'S EXHIBIT NO. 5.
/9/ COMPLAINANT'S EXHIBIT NO. 6.
/10/ ACTUALLY, O'NEIL CLEARED THIS WITH JACOBY BY TELEPHONE THE
PRECEDING TUESDAY, MARCH 9, AFTER RECEIVING AND READING THE ACTIVITY'S
MARCH 9 LETTER.
/11/ COMPLAINANT'S EXHIBIT NO. 9.
/12/ COMPLAINANT'S EXHIBIT NO. 8.
/13/ COMMISSIONER SWIEGART HAD BEEN CALLED IN BY THE PARTIES TO
MEDIATE AN EARLIER DISPUTE WHICH HAD ARISEN DURING DISCUSSIONS ON THE
GROUND RULES FOR THE PROFESSIONAL UNIT NEGOTIATIONS. HIS SECOND
INVOLVEMENT WITH THE PARTIES CAME AFTER HE INQUIRED INFORMALLY ABOUT THE
STATUS OF THE NEGOTIATIONS.
/14/ IT IS WELL ESTABLISHED CASE LAW, UNDER THE NATIONAL LABOR
RELATIONS ACT, THAT A UNION MAY GIVE UP THIS LEGAL RIGHT, IF IT WISHES
TO DO SO, WITH OR WITHOUT RECEIVING A BARGAINING CONCESSION IN RETURN.
BUT ONCE THE UNION DECIDES THAT IT DOES NOT WISH TO ENGAGE IN JOINT
BARGAINING FOR A SINGLE CONTRACT, OR JOINT BARGAINING FOR SEPARATE
CONTRACTS, OR DUAL-SIMULTANEOUS BARGAINING FOR SEPARATE CONTRACTS, THEN
THAT SHOULD BE THE END OF THE MATTER.
4 A/SLMR 433; P. 608; CASE NO. 35-2875(CA); SEPTEMBER 30, 1974.
VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK
A/SLMR NO. 433
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY LOCAL 491, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(COMPLAINANT). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
ACTIVITY ATTEMPTED TO DISSUADE ONE OF ITS EMPLOYEES FROM SEEKING UNION
REPRESENTATION BY INDICATING TO HER THAT HER RETURN TO DUTY FOLLOWING AN
ABSENCE ON LEAVE WITHOUT PAY (LWOP) NECESSITATED BY MEDICAL PROBLEMS
WOULD ONLY BE COMPLICATED SHOULD SHE SEEK SUCH ASSISTANCE. IT WAS
ALLEGED THAT THIS ACT OF DISSUASION WAS PART OF A PATTERN OF CONDUCT BY
THE RESPONDENT WHICH RESULTED IN THE EMPLOYEE'S TERMINATION, BASED IN
PART ON THE EMPLOYEE'S HAVING SOUGHT UNION ASSISTANCE IN RESOLVING HER
DIFFICULTIES, AND, THEREFORE, WAS IN VIOLATION OF SECTION 19(A)(1) AND
(2) OF THE ORDER.
WITH RESPECT TO THE FIRST ALLEGATION, THE ASSISTANT SECRETARY ADOPTED
THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE RESPONDENT'S CONDUCT
VIOLATED SECTION 19(A)(1) OF THE ORDER. IN THIS REGARD, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED, BASED ON THE CREDITED TESTIMONY OF
THE AGGRIEVED EMPLOYEE, THAT THE ASSISTANT CHIEF OF PERSONNEL STATED TO
HER, IN EFFECT, THAT SHOULD SHE INVOLVE THE COMPLAINANT IN THE MATTER OF
HER REINSTATEMENT FOLLOWING THE PERIOD OF HER LWOP, EVERYTHING WOULD GO
INTO HER RECORDS AND THAT THIS MIGHT HURT HER. THE ADMINISTRATIVE LAW
JUDGE CONCLUDED THAT THIS CONSTITUTED AN ATTEMPT BY THE RESPONDENT TO
ENCOURAGE THE EMPLOYEE TO BY-PASS HER EXCLUSIVE REPRESENTATIVE AND DEAL
DIRECTLY WITH THE RESPONDENT WITH REGARD TO THE RESOLUTION OF HER
DIFFICULTIES, IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
AS TO THE ALLEGATION THAT THE RESPONDENT'S ACTIONS VIOLATED SECTION
19(A)(2) OF THE ORDER, THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THERE WAS INSUFFICIENT
EVIDENCE TO ESTABLISH THAT THE RESPONDENT'S REFUSAL TO ALLOW THE
EMPLOYEE TO RETURN TO WORK AND HER SUBSEQUENT TERMINATION WERE BASED ON
ANTI-UNION CONSIDERATIONS OR FOR ENGAGING IN CONDUCT PROTECTED UNDER THE
ORDER.
VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK
AND
LOCAL 491,
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
ON JULY 9, 1974, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT, VETERANS ADMINISTRATION CENTER, BATH, NEW YORK, HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT TAKE
CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE
LAW JUDGE'S REPORT AND RECOMMENDATIONS. THE ADMINISTRATIVE LAW JUDGE
FOUND OTHER ALLEGED CONDUCT OF THE RESPONDENT NOT TO BE VIOLATIVE OF THE
ORDER.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS /1/ AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE VETERANS
ADMINISTRATION CENTER, BATH, NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
URGING OR ADMONISHING THEM TO REFRAIN FROM SEEKING REPRESENTATION OR
ASSISTANCE FROM LOCAL 491, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER
MATTERS AFFECTING WORKING CONDITIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT VETERANS ADMINISTRATION CENTER, BATH, NEW
YORK, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE VETERANS ADMINISTRATION CENTER, BATH, NEW YORK AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ IN VIEW OF THE DISPOSITION HEREIN ON THE MERITS, IT WAS
CONSIDERED UNNECESSARY TO DECIDE WHETHER SECTION 19(D) HAD ANY
APPLICABILITY IN THIS MATTER. CF. CALIFORNIA NATIONAL GUARD, STATE
MILITARY FORCES, SACRAMENTO, CALIFORNIA, A/SLMR NO. 348.
WE WILL NOT URGE OR ADMONISH OUR EMPLOYEES TO REFRAIN FROM SEEKING
REPRESENTATION OR ASSISTANCE FROM LOCAL 491, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING WORKING CONDITIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR WHOSE ADDRESS IS: ROOM 3515, 1515 BROADWAY, NEW YORK, NEW YORK
10036.
IN THE MATTER OF
VETERANS ADMINISTRATION CENTER,
BATH, NEW YORK
AND
LOCAL 491, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
STEPHAN L. SHOCHET, ESQ.
OFFICE OF THE GENERAL COUNSEL
VETERANS ADMINISTRATION
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C. 20420
GEORGE TILTON, ESQ.
ASSOCIATE GENERAL COUNSEL
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING, HEARD IN BATH, NEW YORK ON NOVEMBER 15 AND 16, 1973,
ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREAFTER CALLED THE
ORDER). PURSUANT TO THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS (HEREAFTER CALLED THE ASSISTANT SECRETARY) A
NOTICE OF HEARING ON COMPLAINT ISSUED ON OCTOBER 10, 1973, WITH
REFERENCE TO ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND (2) OF THE
ORDER. /1/ THE COMPLAINT FILED ON MAY 23 1973, BY LOCAL 491, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (HEREAFTER CALLED COMPLAINANT OR THE
UNION) ALLEGED THAT THE VETERANS ADMINISTRATION CENTER, BATH, NEW YORK
(HEREAFTER CALLED RESPONDENT OR THE ACTIVITY) VIOLATED THE ORDER AS
FOLLOWS:
"(1) SPECIFICALLY THAT ON AUGUST 29, 1972 ATTEMPTS WERE MADE TO
DISSUADE ONE KAREN
KARWOSKI, BATH V.A.C. FROM RELATING TO THE UNION IN HER OWN BEST
INTERESTS AND THAT ATTEMPTS
WERE OTHERWISE MADE TO SO CONDITION UNION OFFICIALS, SPECIFICALLY THE
PRESIDENT AND
VICE-PRESIDENT, IN VIOLATION OF THE EXECUTIVE ORDER 11491 SECTION
19(A)(1). (SEE ATTACHMENTS)
(2) THAT THESE ATTEMPTS, TOGETHER WITH CLANDESTINE ACTIVITY DESIGNED
TO OBSCURE IMPROPER
ACTIONS AND PROCEDURES TAKEN BY MANAGEMENT OVER A PERIOD OF SEVERAL
MONTHS, REFLECTED CONTEMPT
OF RECOGNIZED LABOR UNION AND V.A. REGULATIONS AND BASIC CIVIL
RIGHTS, RESULTING IN DEFACTO
DISCOURAGEMENT OF MEMBERSHIP, REFUSAL TO CONSULT IN MEANINGFUL WAY AS
EVIDENCED IN TRANSCRIPTS
ATTACHED OF MEETINGS, AND REFUSAL TO DIVULGE THE BACKGROUND FACTS
(MANAGEMENT'S ACTIONS) OR
HONESTLY REVEAL MANAGEMENT'S INTENTIONS. (SEE ATTACHMENTS)
(3) THAT THE UNION'S INVOLVEMENT PRECIPITATED ADVERSE ACTION BY
MANAGEMENT AGAINST MISS
KARWOSKI WHICH, MANAGEMENT PERSONNEL ADMITTING, WOULD NOT HAVE
OCCURRED OTHERWISE, CLAIMING
THEY WERE FORCED TO TAKE SUCH ACTION. THAT THIS ACTION INFLICTED
HARM UPON THE EMPLOYEE
BECAUSE SHE SOUGHT TO PROTECT HERSELF IN A LEGALLY CONSTITUTED WAY,
BUT ONE WHICH WOULD REVEAL
MANAGEMENT'S FAILURES, MISJUDGMENTS AND VIOLATIONS OF THE LAW AND/OR
REGULATIONS. (SEE
ATTACHMENTS)"
THE RELEVANT "ATTACHMENTS" CARRY THE CAPTION "COLLABORATING AND
SUPPORTIVE SEQUENCES" AND STATE:
"STEWARD'S RECORD OF EMPLOYEE-MANAGEMENT SEQUENCES #2. THIS AGENCY
HAS DENIED THE RIGHT TO
EMPLOYMENT FOR WHICH AN EMPLOYEE HAD BEEN HIRED: 8/10/72, 8/7/72,
8/29/72 BATH V.A.C.
THIS AGENCY HAS THREATENED THE EMPLOYEES AND DEMEANING ACTS AND
GESTURES HAVE BEEN IMPOSED
ON HER AS WELL AS BELABORING THE EMPLOYEE WITH UNREASONABLE DEMANDS
AND DENIALS: I.E. 8/10/72,
8/23/72, 8/24/72, 8/29/72 BATH V.A.C. 9/4/72, 9/8/72, 9/11/72,
9/15/72 PRATTSBURG,
N.Y. 10/18/72, 10/24/72, BATH V.A.C.
THE AGENCY HAS ARBITRARILY PROPOSED AND EFFECTED AN EMPLOYEE'S STATUS
CHANGE AND
REMOVAL: 9/14/72, 9/15/72, 10/27/72, 11/10/72 BATH V.A.C.
THE AGENCY HAD DENIED PROPER HEARING AND THE EMPLOYEE WAS DENIED
REGULATORY
REQUIREMENTS. SHE WAS IMPROPERLY USED, TRANSPORTED, RIDICULED AND
DEGRADED BOTH ON AND OFF
FEDERAL RESERVATION AS DIRECTLY PRECIPITATED BY ADVERSE AND IMPROPER
ACTIONS OF
MANAGEMENT. NO EFFORT HAS BEEN MADE BY MANAGEMENT TO DEVELOP
IMPARTIAL AND REASONABLE
RECONCILIATION OF FACTS. MANAGEMENT HAS DENIED THE EMPLOYEE AND THE
UNION THE RIGHT TO REVIEW
ANY EVIDENCE FILE THEY HAVE, IF SUCH EXISTS. 8/72 - 9/21/72 AND
10/5/72 - UNFAIR LABOR CHARGE
- BATH V.A.C."
IN ITS RESPONSE TO THE COMPLAINT, THE ACTIVITY CONTENDED THAT THE
UNION'S UNFAIR LABOR PRACTICE CHARGE DATED OCTOBER 5, 1972, DID NOT
COMPLY WITH SECTION 203.2(A)(3) OF THE REGULATIONS AND THE COMPLAINT DID
NOT COMPLY WITH SECTION 203.3(A)(3) OF THE REGULATIONS. /2/ ACCORDINGLY
IT MOVED THAT THE COMPLAINT BE DISMISSED. RESPONDENT'S MOTION TO
DISMISS STATES, IN RELEVANT PART:
"IN THE LETTER OF CHARGES, THE SO-CALLED FACTS SET FORTH IN SUPPORT
OF THE ALLEGED
VIOLATIONS OF SUBSECTIONS 19(A)(2), (5) AND (6) ARE SO VAGUE THAT
RESPONDENT IS UNABLE TO
UNDERSTAND THE NATURE OF THE UNFAIR LABOR PRACTICES WITH WHICH IT IS
CHARGED. THE SO-CALLED
FACTS SET FORTH IN SUPPORT OF THE ALLEGED VIOLATION OF SUBSECTION
19(A)(1) FAIL TO DISCLOSE
WHEN OR WHERE THE EVENT TOOK PLACE, OR WHAT WAS THE NATURE OF THE
ALLEGED INJUSTICE BEING
IMPOSED ON THE EMPLOYEE.
WITH RESPECT TO THE COMPLAINT FILED HEREIN, THE ALLEGATIONS IN
PARAGRAPHS (2) AND (3), IN
ITEM 2 OF THE COMPLAINT, ARE SO VAGUE THAT RESPONDENT IS UNABLE TO
FORMULATE A SPECIFIC
ANSWER. PARAGRAPH (1), IN ITEM 2 OF THE COMPLAINT, APPARENTLY REFERS
TO THE SAME INCIDENT
MENTIONED IN THE LETTER OF CHARGES IN SUPPORT OF THE ALLEGED
VIOLATIONS OF SUBSECTION
19(A)(1). HOWEVER, THIS PARAGRAPH REFERS TO OTHER INCIDENTS
CONCERNING UNION OFFICIALS WHICH
WERE NOT EVEN ALLUDED TO IN THE LETTER OF CHARGES. THUS, THE
COMPLAINANT HAS ALSO FAILED TO
COMPLY WITH SECTION 203.2(A)(1) OF THE REGULATIONS, SINCE RESPONDENT
WAS NEVER CHARGED WITH
THE ATTEMPTS TO "CONDITION UNION OFFICIALS" (SIC) (R A/S NO. 16)."
THE MOTION TO DISMISS WAS NOT SPECIFICALLY RULED UPON
ADMINISTRATIVELY. RESPONDENT RENEWED THE MOTION AT THE OUTSET OF THE
HEARING AT WHICH TIME I RESERVED RULING ON THE MATTER.
IT IS MY RECOMMENDATION THAT THE MOTION SHOULD BE GRANTED IN PART AND
DENIED IN PART. IN MY VIEW THE UNFAIR LABOR PRACTICE CHARGE DESCRIBES
WITH SUFFICIENT PARTICULARITY THAT THE MATTERS ALLEGED TO HAVE
CONSTITUTED VIOLATIONS OF SECTIONS 19(A)(1) AND (2) OF THE ORDER /3/
WERE A SPECIFIC REMARK TO EMPLOYEE KAREN KARWOSKI MADE BY THE ACTIVITY'S
ASSISTANT CHIEF OF PERSONNEL AND THE ACTIVITY'S DENYING HER REQUEST THAT
SHE BE ALLOWED TO RETURN TO WORK (WHICH EVENTUALLY INCLUDED
TERMINATION.) GIVEN THE DETAILS WHICH PRECEDED EMPLOYEE KARWOSKI'S
SEPARATION FROM EMPLOYMENT, AS WILL HEREINAFTER BE SET FORTH, IT CANNOT
BE GAINSAID THAT THE ACTIVITY WAS ABUNDANTLY CLEAR AS TO THE FACTS AND
CIRCUMSTANCES OF THE SECTION 19(A)(2) ALLEGATION. WHILE THE UNFAIR
LABOR PRACTICE CHARGE DOES NOT SPECIFICALLY SET FORTH THE DATE OR PLACE
THAT THE ALLEGED 19(A)(1) STATEMENT WAS MADE, THAT DEFECT WAS CURED WHEN
MISS KARWOSKI AND THE ASSISTANT CHIEF OF PERSONNEL MET ON OCTOBER 24,
1972, UNDER THE AUSPICES OF THE UNION AND THE ACTIVITY. AT THE MEETING
PRECISE DETAILS OF THE ALLEGED STATEMENT, INCLUDING THE TIME AND PLACE
OF THE OCCURRENCE, WERE CONVEYED TO THE ACTIVITY THEREBY PLACING THE
PARTIES IN A POSITION TO RESOLVE THE MATTER INFORMALLY. /4/
HOWEVER, WITH REGARD TO THE UNION'S REFERENCE IN THE COMPLAINT TO
"ATTEMPTS...MADE TO SO CONDITION UNION OFFICIALS" AND "CLANDESTINE
ACTIVITY DESIGNED TO OBSCURE IMPROPER ACTIONS...", I DO NOT FIND THAT
SUCH ALLEGATIONS MEET THE REQUISITE SPECIFICITY REQUIRED BY THE
REGULATIONS. THUS THE UNFAIR LABOR PRACTICE CHARGE IS TOTALLY SILENT ON
SUCH ALLEGED CONDUCT AND THE COMPLAINT DOES NOT RECITE WHAT "ATTEMPTS"
OR "ACTIONS" OF THE ACTIVITY OTHERWISE ALLEGEDLY VIOLATED THE ORDER OR
INDICATE THE TIME AND PLACE OF SUCH ACTS. MOREOVER, AT THE HEARING THE
UNION ACKNOWLEDGED THAT THE ONLY SPECIFIC ACT IT WAS ALLEGING TO BE
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER WAS THE ACTIVITY'S ALLEGED
ATTEMPT TO INTERFERE WITH MISS KARWOSKI'S RIGHTS TO OBTAIN UNION
ASSISTANCE AND THAT OTHER MATTERS ON WHICH TESTIMONY WAS ADDUCED AT THE
HEARING WAS ONLY INTENDED TO SHOW THAT SUCH CONDUCT WAS PART OF THE SAME
COMMON SCHEME TO DEPRIVE MISS KARWOSKI OF HER RIGHTS. THEREFORE, BASED
ON THE FOREGOING I SHALL ADDRESS ONLY THE QUESTION OF WHETHER THE
ACTIVITY VIOLATED THE ORDER WITH REGARD TO THE ALLEGED STATEMENT MADE TO
MISS KARWOSKI ON AUGUST 29, 1972, AND THE ADVERSE ACTION TAKEN AGAINST
HER. /5/
AT THE HEARING THE PARTIES WERE REPRESENTED BY COUNSEL AND WERE
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE, AND
CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED BY BOTH
PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY READING OF THE BRIEFS
AND FROM MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING:
IN JULY 1972, KAREN KARWOSKI, A NURSING ASSISTANT EMPLOYED IN THE
ACTIVITY'S NURSING HOME CARE UNIT AND A MEMBER OF THE COLLECTIVE
BARGAINING UNIT, /6/ EXPERIENCED SOME EMOTIONAL PROBLEMS. ON JULY 17
SHE RELATED HER PROBLEMS AND NEED FOR ASSISTANCE TO A PERSONAL FRIEND,
DR. HOWARD SYMMONS, A CLINICAL PSYCHOLOGIST EMPLOYED AT THE ACTIVITY.
ON THAT SAME DAY DR. SYMMONS CONTACTED DR. WINSTON HAINSWORTH, CHIEF OF
STAFF AND DR. HAROLD GINSBURG, CHIEF OF PSYCHOLOGY, AND INFORMED THEM OF
THE SITUATION. DR. GINSBURG EXAMINED MISS KARWOSKI AND HE CONCURRED
WITH DR. SYMMONS OPINION THAT MISS KARWOSKI NEEDED MEDICAL ASSISTANCE.
THEREUPON DR. SYMMONS TOOK MISS KARWOSKI TO A PSYCHIATRIST AT A NEARBY
HOSPITAL WHERE SHE REMAINED AS A PATIENT FOR A SHORT TIME. SHE WAS
RELEASED FROM CARE AT THE HOSPITAL IN THE LAST WEEK OF JULY 1972.
AFTER BEING RELEASED FROM THE HOSPITAL MISS KARWOSKI RETURNED TO WORK
AT THE ACTIVITY. SHORTLY AFTER HER RETURN, ON AUGUST 8, 1972, MISS
KARWOSKI INSERTED A HYPODERMIC SYRINGE CONTAINING ORANGE JUICE AND GIN
INTO HER ARM BUT DID NOT INJECT THE SUBSTANCE INTO HER VEIN. ON THE
FOLLOWING DAY MISS KARWOSKI INFORMED DR. SYMMONS AND MR. PAUL CRATICK, A
SOCIAL SERVICE EMPLOYEE, OF THE EPISODE. THEY CONCLUDED THAT MISS
KARWOSKI NEEDED EMERGENCY PSYCHIATRIC CARE. DR. SYMMONS TURNED THE
SYRINGE OVER TO DR. HAINSWORTH AND THEY ARRANGED FOR IMMEDIATE
PSYCHIATRIC CARE AT ANOTHER HOSPITAL. MR. CRATICK THEN DROVE MISS
KARWOSKI TO THE OTHER HOSPITAL WHERE SHE RECEIVED SOME ATTENTION AND WAS
PUT ON OUT-PATIENT STATUS.
ON AUGUST 10, 1972, DR. SYMMONS MET WITH MISS KARWOSKI AND TOLD HER
THAT HE THOUGHT SHE SHOULD GO ON LEAVE AND WOULD TALK TO HER SUPERVISOR
ABOUT THE MATTER. LATER THAT SAME DAY MISS KARWOSKI MET WITH HER
SUPERVISOR, MARY ALVERMANN AND DONALD HOWE, THE ACTIVITY'S ASSISTANT
CHIEF OF PERSONNEL IN HIS OFFICE. MRS. ALVERMANN HAD INFORMED MR. HOWE
THAT SHE HAD BEEN ADVISED BY DR. HAINSWORTH THAT MISS KARWOSKI WOULD BE
GONE FOR AN INDEFINITE PERIOD OF TIME AND WOULD REQUIRE A COMPLETE
MEDICAL CLEARANCE BEFORE SHE WOULD BE ALLOWED TO RETURN TO WORK. MRS.
ALVERMANN ALSO TOLD MR. HOWE THAT MISS KARWOSKI HAD VERY LITTLE SICK OR
ANNUAL LEAVE LEFT TO HER CREDIT. MR. HOWE ARRANGED THE MEETING SO THAT
MISS KARWOSKI COULD SIGN A LEAVE WITHOUT PAY REQUEST.
AT THE MEETING, /7/ WHICH WAS OF SHORT DURATION, MR. HOWE EXPLAINED
TO MISS KARWOSKI THAT SHE WAS BEING ASKED TO SIGN A LEAVE WITHOUT PAY
SLIP AND IF AFTER 30 DAYS SHE NEEDED MORE TIME SHE COULD COME BACK AND
MAKE ANOTHER REQUEST TO THE DIRECTOR FOR MORE LEAVE WITHOUT PAY. SHE
WAS ALSO INFORMED THAT PRIOR TO HER RETURN TO WORK SHE WOULD BE REQUIRED
TO FURNISH A COMPLETE MEDICAL CLEARANCE. MISS KARWOSKI ASKED IF SHE
COULD RETURN IN TWO WEEKS IF SHE RECEIVED HER CLEARANCE AND WAS TOLD
THAT SHE DID NOT HAVE TO WAIT THE FULL 30 DAYS IF THE OBTAINED HER
CLEARANCE BEFORE THAT TIME. MISS KARWOSKI SIGNED THE LEAVE WITHOUT PAY
REQUEST WITHOUT PROTEST AND MRS. ALVERMANN LEFT THE MEETING. VERY
SHORTLY THEREAFTER SHE OBSERVED MISS KARWOSKI LEAVE THE ROOM.
LATER THAT SAME DAY MISS KARWOSKI AND HER MOTHER MET WITH DR.
HAINSWORTH, DR. SYMMONS, AND ANOTHER DOCTOR. AT THIS MEETING IT WAS
RECOMMENDED THAT MISS KARWOSKI SEEK TREATMENT WHICH COULD INVOLVE A
REHABILITATION PROGRAM AND MIGHT INCLUDE AN ASSIGNMENT TO A WORK AREA
WHERE THERE WOULD BE LESS "RISK" THAN IN A SEMI-INDEPENDENT NURSING
AREA. MISS KARWOSKI WAS ALSO ADVISED THAT BEFORE SHE WOULD BE ALLOWED
TO RETURN TO WORK SHE WOULD HAVE TO HAVE A CERTIFICATE FROM A QUALIFIED
PSYCHIATRIST. /8/
ON AUGUST 24, 1972, MISS KARWOSKI MET WITH MRS. ALVERMANN AND MARY
PIERCE, CHIEF OF NURSING SERVICES. WHILE THERE IS A CONFLICT IN THE
TESTIMONY AS TO WHAT TRANSPIRED AT THAT MEETING, IN ANY EVENT ON AUGUST
25 MISS KARWOSKI FILED A GRIEVANCE WITH THE UNION ALLEGING THAT IN THE
AUGUST 24 MEETING SHE WAS TOLD THAT IF SHE DIDN'T RESIGN, SHE WOULD BE
TERMINATED. /9/
AFTER HAVING FILED THE GRIEVANCE WITH THE UNION ON AUGUST 25, 1972,
MISS KARWOSKI AND CHARLES LESPERANCE, THE UNION'S EXECUTIVE OFFICER AND
A STEWARD, MET WITH MR. HOWE IN HIS OFFICE ON THAT SAME DAY. THE
GATHERING LASTED APPROXIMATELY 25 MINUTES. MR. LESPERANCE TESTIMONY
REGARDING THE MEETING CONSISTED ONLY OF READING FROM NOTES HE TOOK AND
RETAINED ON THE SUBJECT. THOSE NOTES CONTAINED THE FOLLOWING:
"GRIEVANCE FILED. CONSULT WITH PERSONNEL. NOTHING IN FILE. PERSONNEL
IGNORANT OF WHAT WAS GOING ON. NO EVIDENCE OF LEAVE WITHOUT PAY IN
RECORD. PERSONNEL CHART OF EMPLOYEE-CLEAR." MR. HOWE TESTIFIED THAT, AS
REQUIRED BY REGULATIONS, HE REMAINED WITH MR. LESPERANCE AND MISS
KAROWSKI WHILE THEY REVIEWED HER PERSONNEL FILE BUT DID NOT DISCUSS WITH
THEM THE NATURE OR REASON FOR THE INQUIRY. /10/ MISS KARWOSKI TESTIFIED
THAT MR. HOWE TOLD HER AT THIS TIME THAT THERE WAS NO ADVERSE ACTION
AGAINST HER AND ALLUDED TO THE 30-DAY LEAVE WITHOUT PAY PERIOD.
SOMETIME THAT SAME DAY (AUGUST 25) DR. SYMMONS TELEPHONED MISS
KARWOSKI. DURING THE CONVERSATION MISS KARWOSKI TOLD DR. SYMMONS THAT
SHE WOULD NOT TALK TO HIM OR SEE HIM WITHOUT A UNION REPRESENTATIVE
PRESENT. SHE REFUSED TO EXPLAIN THE REASON FOR HER ATTITUDE.
ACCORDINGLY, DR. SYMMONS HAD NO FURTHER CONTACT WITH MISS KARWOSKI
RELATIVE TO THIS MATTER.
ON SUNDAY, AUGUST 27, 1972, MISS KARWOSKI REPORTED FOR WORK AT THE
FACILITY. SHE HAD NOT PREVIOUSLY OBTAINED A PSYCHIATRIC CERTIFICATE OF
READINESS FOR WORK AND THEREFORE WAS REFUSED PERMISSION TO WORK. AS A
RESULT THEREOF, ON AUGUST 28 SHE FILED ANOTHER GRIEVANCE WITH THE UNION.
MR. LESPERANCE'S NOTES FOR THAT DAY REVEALED "UPON RECEPTION OF THE
GRIEVANCE, PERSONNEL CONSULTED." AT THIS TIME, ACCORDING TO MISS
KARWOSKI, MR. HOWE ASKED HER IF SHE WAS PERMITTED TO WORK ON THE
PREVIOUS SUNDAY AND SHE RESPONDED "NO." MR. HOWE REPLIED THAT THE MATTER
WAS OUT OF HIS HANDS.
MISS KARWOSKI WENT TO THE FACILITY AGAIN ON AUGUST 29 IN AN EFFORT TO
RETURN TO WORK. ACCORDING TO HER TESTIMONY SHE WAS SITTING IN A CHAIR
OUTSIDE THE PERSONNEL OFFICE WHEN MR. HOWE WALKED BY AND MOTIONED HER TO
THE AREA OUTSIDE OF HIS OFFICE. HE THEN TOLD MISS KARWOSKI THAT SHE
COULD BE SITTING THERE ALL DAY BEFORE ANYONE WOULD SEE HER. SHE REPLIED
THAT SHE WOULD SIT THERE ALL DAY AND THE NEXT AND THE NEXT IF NEED BE.
MR. HOWE THEN REPLIED WITH WORDS TO THE EFFECT THAT IF THE UNION PRESSED
THIS ISSUE, EVERYTHING WOULD HAVE TO GO INTO MISS KARWOSKI'S RECORDS AND
THAT MIGHT HURT HER.
MR. HOWE TESTIFIED TO A DIFFERENT VERSION OF THIS CONVERSATION,
DENYING THAT HE EVER MENTIONED THE UNION'S INVOLVEMENT ON MISS
KARWOSKI'S BEHALF. ACCORDING TO MR. HOWE, ON AUGUST 28 OR 29 UPON
ENTERING HIS OFFICE HE NOTICED MISS KARWOSKI SITTING ON A CHAIR IN THE
HALLWAY OUTSIDE THE PERSONNEL OFFICE. MR. HOWE'S IMMEDIATE SUPERVISOR
ASKED HIM TO FIND OUT WHAT MISS KARWOSKI WAS DOING IN THE HALLWAY AND
MR. HOWE RETURNED TO THE HALLWAY AND ASKED MISS KARWOSKI IF HE COULD
HELP HER. MISS KARWOSKI REPLIED SHE WAS READY TO GO BACK TO WORK. MR.
HOWE ASKED IF SHE HAD A MEDICAL STATEMENT FROM A PSYCHIATRIST AND MISS
KARWOSKI REPLIED "NO" AND MENTIONED THAT SHE HAD REPORTED FOR WORK ON
THE PREVIOUS SUNDAY. THIS, ACCORDING TO MR. HOWE, WAS THE EXTENT OF HIS
CONVERSATION WITH MISS KARWOSKI ON THAT OCCASION.
ACCORDING TO MR. HOWE, THE ONLY OTHER PRE-UNFAIR LABOR PRACTICE
CHARGE /11/ CONVERSATION HE HAD WITH MISS KARWOSKI RELATIVE TO THIS
MATTER OCCURRED ON AUGUST 10, 1972. IN THIS REGARD MR. HOWE TESTIFIED
IN DIRECT EXAMINATION AS FOLLOWS:
"Q. . . . YOU HEARD HER TESTIFY THAT YOU SAID TO HER, I THINK THE
WORDS SHE USED WAS, OFF
THE BOOKS OF SOMETHING LIKE THAT, THAT YOU SAID TO HER THAT IF THE
UNION GOT INVOLVED THIS
WOULD HAVE TO GO INTO HER PERSONNEL RECORD OR "IT" WOULD HAVE TO GO
INTO HER PERSONNEL RECORD,
DO YOU REMEMBER THAT?
A. YES.
"Q. DO YOU REMEMBER ANY OF THOSE WORDS?
A. YES.
Q. DID YOU EVER REMEMBER SAYING ANYTHING LIKE THAT TO HER?
A. I DON'T RECALL IT.
Q. WOULD YOU RECALL IT?
A. IT SEEMS AS THOUGH I WOULD.
Q. IT SEEMS AS THOUGH YOU WOULD OR YOU WOULD?
A. YES, I WOULD.
Q. DID YOU EVER DISCUSS THE UNION WITH HER?
A. (NO RESPONSE.)
Q. DID YOU EVER TELL HER THAT SHE HAD A RIGHT TO GO TO THE UNION?
A. I ALWAYS DISCUSS UNION WITH EMPLOYEES. IF THEY ASKED-- IF THERE
IS ANY ACTION BEING
TAKEN WE ALWAYS TELL THEM THAT THEY MAY HAVE THEIR UNION
REPRESENTATIVE PRESENT IF THEY
DESIRE. THIS IS THE REQUIREMENT.
Q. DID YOU TELL KAREN ABOUT THAT ON THE 28TH OR THE DAY SHE WAS
SITTING OUT THERE?
A. NOT ON THAT DAY, NO.
Q. DID YOU TELL HER THAT ON THE 10TH WHEN SHE SIGNED THE LEAVE
WITHOUT PAY SLIP?
A. THAT, I CANNOT SAY. I EXPLAINED A LOT OF THINGS AND REGULATIONS
ON THAT DATE.
Q. YOU MIGHT HAVE MENTIONED THE UNION TO HER?
A. I MIGHT HAVE MENTIONED IT TO HER, YES.
Q. AND, MIGHT HAVE YOU MENTIONED TO H-R, AT THAT TIME, THAT NO
ADVERSE ACTION WOULD BE
TAKEN AND THERE WOULD BE NO NEED FOR HER TO GO TO THE UNION AT THAT
TIME?
"A. MIGHT I HAVE MENTIONED THIS?
Q. WELL, DID YOU?
A. NO.
Q. WAS THERE ANY MENTION AT ALL THAT LEAVE WITHOUT PAY WAS NOT IN
ANY ADVERSE ACTION?
A. THAT, I MIGHT HAVE SAID, YES. LEAVE WITHOUT PAY IS A REQUEST
FROM AN EMPLOYEE AND IS
NOT AN ADVERSE ACTION."
ON CROSS-EXAMINATION ON THIS SUBJECT MR. HOWE TESTIFIED FOLLOWS:
"Q. MR. HOWE, DID YOU IN ANY WAY DISCOURAGE HER FROM GOING TO THE
UNION?
A. I DID NOT.
Q. DID YOU SUGGEST PERHAPS THERE WAS A LESS OR NO POINT OF HER GOING
TO THE UNION?
A. NONE WHATSOEVER.
Q. ARE YOU CERTAIN OF THAT?
A. YES.
Q. I'M GOING TO ASK YOU ONE MORE TIME. YOU'RE UNDER OATH.
A. YES.
Q. YOU'RE CERTAIN OF THAT?
A. YES."
FURTHER CROSS-EXAMINATION OF MR. HOWE REVEALED THAT HE PARTICIPATED
IN A MEETING WITH MISS KARWOSKI AND TWO UNION REPRESENTATIVES ON OCTOBER
24, 1972. THE MEETING WAS CALLED FOR THE PURPOSE OF ATTEMPTING TO
RESOLVE THE CREDITIBILITY CONFLICT WHICH AROSE FROM THE DISPARATE
VERSIONS OF THE AUGUST 29 MEETING. THE TRANSCRIPT OF THE OCTOBER 24
MEETING /12/ REVEALS THAT WHEN QUESTIONED ABOUT THE ALLEGED REFERENCE TO
THE UNION ACTING IN MISS KARWOSKI'S BEHALF, MR. HOWE ADMITTED MENTIONING
THE UNION TO MISS KARWOSKI BUT INSISTED THAT THE CONVERSATION OCCURRED
ON AUGUST 10. MR. HOWE STATED AT THE OCTOBER 24 MEETING:
"I AM TELLING YOU THAT WE - SHE ASKED ME ABOUT GOING TO THE UNION THE
FIRST TIME WE WERE IN
THEIR. I ALWAYS ADVISE THE EMPLOYEES THEY HAVE THE RIGHT TO GO TO
THE UNION AND THIS IS WHAT
I WAS DOING. THE FIRST TIME WE WERE IN THE OFFICE I WAS ADVISING HER
OF HER RIGHTS. I SAID I
SEE NO REASON TO GO TO THE UNION AT THIS POINT - NO ADVERSE ACTION
HAD BEEN TAKEN AGAINST
HER. SHE SIGNED A VOLUNTARY LEAVE WITHOUT PAY STATEMENT IN MY
PRESENCE. THAT'S ALL THAT
HAPPENED THAT DAY.
WELL WE'RE GETTING OFF THE SUBJECT. THE POINT IS THAT SHE SAYS THAT
I TOLD HER NOT TO GO
TO THE UNION. I SAY I DID NOT TELL HER NOT TO GO TO THE UNION. I
ONLY TOLD HER THERE WAS NO
ACTION INVOLVED ADVERSELY AT THAT TIME AND I SEE NO NEED TO GO TO THE
UNION AT THAT POINT."
UPON FURTHER CROSS-EXAMINATION AT THE HEARING MR. HOWE TESTIFIED:
"A. THIS TRANSCRIPT IS NOT IN ERROR. NO PLACE IN HERE DID I TELL
HER NOT TO GO TO THE
UNION OR THAT SHE SHOULDN'T GO TO THE UNION.
Q. THAT THERE WAS NO NEED FOR HER TO GO TO THE UNION?
A. ON THE DAY THAT SHE CAME IN ON AUGUST 10 I EXPLAINED TO HER THE
REGULATIONS, SHE WAS
SIGNING A LEAVE WITHOUT PAY AND I TOLD HER HER RIGHTS TO GO TO THE
UNION IF SHE HAD A
GRIEVANCE BUT AT THAT TIME ALL SHE WAS DOING WAS SIGNING A VOLUNTARY
REQUEST FOR LEAVE WITHOUT
PAY. NOW, ON THAT DAY THIS IS WHAT I TOLD HER.
Q. DID YOU TELL HER THERE WAS NO POINT IN HER GOING TO THE UNION?
A. NOT IN SO MANY WORDS. I TOLD HER THAT SHE DID NOT HAVE A
GRIEVANCE WHEN YOU SIGN FOR A
VOLUNTARY LEAVE WITHOUT PAY THAT SHE WAS REQUESTING."
MR. HOWE FURTHER TESTIFIED:
"Q. WHEN YOU TALKED TO HER ON AUGUST 10 AS YOU SAY AT THAT TIME, DID
YOU TELL HER THAT YOU
WERE NOT TAKING ADVERSE ACTION AGAINST HER?
"A. I EXPLAINED TO HER THE LEAVE WITHOUT PAY; WHAT LEAVE WITHOUT
PAY WAS AND SO FORTH AND
THAT IT WAS NOT AN ADVERSE ACTION, YES, THAT WAS REQUESTED BY THE
EMPLOYER.
Q. YOU TOLD HER THAT THIS WAS NOT AN ADVERSE ACTION AND THEREFORE
THERE WAS NO NEED FOR
HER TO GO TO THE UNION?
A. I DID NOT TELL HER THERE WAS NO NEED FOR HER TO GO TO THE UNION.
Q. ON AUGUST 10 YOU DIDN'T TELL HER THAT?
A. I DID NOT TELL HER THAT.
Q. EVER?
A. EVER.
FROM MY EVALUATION OF THE TESTIMONY /13/ AND FROM BY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR I CREDIT MISS KARWOSKI'S VERSION OF THE
AUGUST 29, 1972 CONVERSATION.
SOMETIME IN SEPTEMBER 1972, DR. HAINSWORTH TELEPHONED MR. IRVING
MORROW A RETIRED ACTIVITY EMPLOYER WHO WAS THE UNION'S PRESIDENT AT THE
TIME. DR. HAINSWORTH ANNOUNCED THAT HE WAS CALLING WITH REGARD TO MISS
KARWOSKI AND SUGGESTED THAT WITH REGARD TO THE ACTIVITY HELPING MISS
KARWOSKI RECEIVE PROPER MEDICAL CARE, IT WOULD BE MUCH MORE DIFFICULT IF
THE UNION WAS INCLUDED IN THE MATTER. MR. HAINSWORTH STRONGLY URGED
THAT THE UNION REFRAIN FROM GETTING INVOLVED IN THE SITUATION. MR.
MORROW RESPONDED THAT THE UNION FELT IT COULD OFFER SOME ASSISTANCE TO
MISS KARWOSKI IN ADDITION TO THAT WHICH WAS BEING PROVIDED BY THE
ACTIVITY.
BY LETTER DATED SEPTEMBER 14, 1972, THE ACTIVITY NOTIFIED MISS
KARWOSKI THAT THEY WERE PROPOSING HER TERMINATION. THE LETTER STATED,
INTER ALIA:
"I. THIS IS TO NOTIFY YOU THAT IT IS PROPOSED TO REMOVE YOU BASED ON
THE FOLLOWING
REASONS:
"1. ON AUGUST 29, 1972 AT 10:30 A.M. YOU WERE SCHEDULED FOR MEDICAL
EXAMINATION IN THE
PERSONNEL PHYSICIAN'S OFFICE TO DETERMINE YOUR MENTAL AND PHYSICAL
FITNESS TO RETURN TO
DUTY. THE PERSONNEL PHYSICIAN AND A PSYCHIATRY CONSULTANT STOOD BY
FOR YOUR
APPOINTMENT. EVEN AFTER BEING PAGED ON THE PA SYSTEM YOU FAILED TO
KEEP THE APPOINTMENT NOR
HAVE WE BEEN ADVISED OF WHAT YOU PLAN TO DO AS REGARDS YOUR RETURN TO
DUTY.
2. YOUR LWOP ENDED ON SEPTEMBER 7, 1972 AND FROM THAT DATE ON WE
HAVE TO CARRY YOU ON AN
AWOL STATUS SINCE WE ARE UNABLE TO DETERMINE YOUR PLANS.
4. THE FINAL DECISION TO EFFECT THE ACTION PROPOSED HAS NOT BEEN
MADE. THE CENTER
DIRECTOR WHO WILL MAKE THE FINAL DECISION, WILL GIVE FULL AND
IMPARTIAL CONSIDERATION TO YOUR
REPLY, IF A REPLY IS SUBMITTED.
7. AS INDICATED IN PARAGRAPH 1 ABOVE, YOU ARE BEING CARRIED IN AN
AWOL STATUS. THIS WILL
CONTINUE DURING THIS NOTICE PERIOD UNLESS YOU CONTACT US IMMEDIATELY.
WE HOPE THAT YOU WILL
DO SO AND WE CAN MAKE ADJUSTMENTS TO YOUR LEAVE RECORD IF MEDICAL
CLEARANCE IS OBTAINED."
ON SEPTEMBER 29, 1972, CHAPLIN RONALD A. GUNTON, AN EMPLOYEE OF THE
ACTIVITY AND THE FIRST VICE-PRESIDENT OF THE UNION, MET DR. SYMMONS /14/
WHO ATTEMPTED TO DISCUSS THE KARWOSKI SITUATION WITH HIM. WHEN REVEREND
GUNTON REFUSED TO DISCUSS THE MATTER, DR. SYMMONS TURNED TO ANOTHER
PHYSICIAN AND INFORMED HIM THAT MISS KARWOSKI WAS SICK AND NEEDED HELP.
DR. SYMMONS ALSO STATED THAT "(MISS KARWOSKI) HAD GONE TO THE UNION AND
WE'RE TERRIBLY AFRAID NOW WE WON'T BE ABLE TO HELP HER . . . THERE IS
NOTHING WE CAN DO FOR HER BECAUSE SHE HAD GONE TO THE UNION" OR WORDS OF
THAT EFFECT.
SOMETIME THEREAFTER MISS KARWOSKI'S EMPLOYMENT WAS TERMINATED.
ACCORDING TO THE ACTIVITY, IT HAD NO ALTERNATIVE TO TAKING SUCH ACTION
SINCE MISS KARWOSKI DID NOT OBTAIN PSYCHIATRIC CLEARANCE RELATIVE TO
RETURNING TO WORK NOR DID SHE REQUEST FURTHER LEAVE WITHOUT PAY. THE
RECORD IS SILENT AS TO WHAT SUBSEQUENTLY TRANSPIRED EXCEPT THAT MISS
KARWOSKI THEREAFTER APPEALED HER SEPARATION AND, AS A RESULT OF THE
APPEAL, WAS REINSTATED TO EMPLOYMENT IN MARCH OF 1973 AFTER TAKING
VARIOUS "EXAMINATIONS."
I CONCLUDE THAT MR. HOWE'S STATEMENT TO MISS KARWOSKI IN AUGUST 29,
1972, TO THE EFFECT THAT IF THE UNION PRESSED THE ISSUE, EVERYTHING
WOULD TO INTO HER RECORDS AND THAT MIGHT HURT HER, VIOLATED SECTION
19(A)(1) OF THE ORDER. THUS, THE STATEMENT, IN MY VIEW, URGED MISS
KARWOSKI TO BY-PASS THE UNION AND DEAL DIRECTLY WITH THE ACTIVITY WITH
REGARD TO THE RESOLUTION OF HER DIFFICULTIES. THE SUGGESTION THAT UNION
REPRESENTATION IN THE MATTER MIGHT RESULT IN SOME FORM OF ADVERSE
CONSEQUENCE TO MISS KARWOSKI CONSTITUTES COERCION AND "RUNS COUNTER TO
VERY PRACTICE AND PHILOSOPHY OF EXCLUSIVE RECOGNITION." /15/ HOWEVER
WELL-INTENTIONED THE ACTIVITY MIGHT HAVE BEEN IN ITS DESIRE TO ASSIST
MISS KARWOSKI WITH A MINIMUM OF ADMINISTRATIVE COMPLICATION, IT COULD
NOT, UNDER THE ORDER, IMPEDE MISS KARWOSKI'S FREE AND FULL ACCESS TO
UNION REPRESENTATION AND ASSISTANCE.
WITH REGARD TO THE SECTION 19(A)(2) ALLEGATION, I DO NOT FIND THAT
COMPLAINANT HAS MET ITS BURDEN OF PROVING, BY A PREPONDERANCE OF
EVIDENCE, THAT RESPONDENT VIOLATED THE ORDER BY REFUSING TO PERMIT MISS
KARWOSKI TO RETURN TO WORK AND SUBSEQUENTLY TERMINATING HER. THUS, MISS
KARWOSKI WAS CONSISTENTLY ADVISED, FROM VIRTUALLY THE ONSET OF HER
SEPARATION FROM DUTY, THAT A PSYCHIATRISTS' CERTIFICATION WOULD BE
REQUIRED BEFORE SHE COULD RETURN TO WORK. SHE WAS ALSO MADE AWARE THAT
HER LEAVE WITHOUT PAY STATUS WAS GOOD FOR ONLY 30 DAYS AND RENEWAL OF
SUCH STATUS REQUIRED A REQUEST TO THE FACILITY DIRECTOR AND HIS APPROVAL
THEREOF. BOTH OF THESE REQUIREMENTS FOR RETURN TO WORK WERE PLACED ON
MISS KARWOSKI PRIOR TO HER SEEKING UNION ASSISTANCE AND THE ACTIVITY DID
NOT AT ANY TIME MATERIAL HERETO, BY WORD OR DEED, WITHDRAW THESE
REQUIREMENTS. NEITHER DID MISS KARWOSKI AT ANY TIME MATERIAL HERETO
MEET THESE REQUIREMENTS. ACCORDINGLY, IT HAS NOT BEEN ESTABLISHED THAT
THE ACTIVITY'S REFUSAL TO PERMIT MISS KARWOSKI'S RETURN TO WORK AND HER
SUBSEQUENT TERMINATION WAS, IN ANY WAY, THE RESULT OF HER SEEKING UNION
HELP.
FURTHER, WHILE THE ACTIVITY WAS OBVIOUSLY DESIROUS OF HANDLING MISS
KARWOSKI'S PROBLEMS WITHOUT INTERVENTION OF THE UNION, THIS ALONE DOES
NOT ESTABLISH THAT THE ACTIVITY ENGAGED IN ANY ACTION ADVERSE TO MISS
KARWOSKI BECAUSE OF THE UNION'S INVOLVEMENT. I CONSTRUE DR.
HAINSWORTH'S STATEMENT TO MR. MORROW IN SEPTEMBER 1972, AND DR. SYMMONS'
STATEMENT MADE IN THE PRESENCE OF REVEREND GUNTON ON SEPTEMBER 29, 1972,
TO BE EXPRESSIONS OF THE SENTIMENT THAT MISS KARWOSKI'S REINSTATED WAS
MADE ADMINISTRATIVELY MORE DIFFICULT SINCE THE UNION WAS CHALLENGING THE
ACTIVITY'S REQUIREMENT THAT MISS KARWOSKI OBTAIN PSYCHIATRIC CLEARANCE.
/16/ THE ACTIVITY SAW THIS AS A MATTER WHICH COULD BE RESOLVED
EXPEDITIOUSLY IF MISS KARWOSKI SIMPLY OBTAINED PSYCHIATRIC CLEARANCE
WHILE ON LEAVE WITHOUT PAY BUT AFTER MISS KARWOSKI SOUGHT UNION
ASSISTANCE, THE RESOLUTION APPEARED TO BE NOT READILY FORTHCOMING THUS
COMPLICATING THE SITUATION IN THE ACTIVITY'S JUDGEMENT. HOWEVER, THE
ACTIVITY'S CONCLUSION IN THIS REGARD DOES NOT ESTABLISH THAT IT TOOK ANY
ACTION ADVERSE TO MISS KARWOSKI BECAUSE OF HER SEEKING UNION
REPRESENTATION. /17/
RESPONDENT CONTENDS THAT SINCE MISS KARWOSKI PURSUED HER TERMINATION
OF EMPLOYMENT THROUGH THE ACTIVITY'S APPEALS PROCEDURE, INDEED
SUCCESSFULLY, SECTION 19(D) OF THE ORDER /18/ IS CONTROLLING AND
ACCORDINGLY, THE ALLEGATION OF VIOLATION OF SECTION 19(A)(2) OF THE
ORDER SHOULD BE DISMISSED. HOWEVER, THE RECORD IS NOT CLEAR WHETHER THE
APPEALS PROCEDURE UTILIZED HEREIN PERMITTED MISS KARWOSKI TO RAISE THE
ISSUE WHETHER THE TERMINATION WAS DISCRIMINATORILY MOTIVATED AND IN
VIOLATION OF RIGHTS PROTECTED BY THE ORDER. /19/ MOREOVER, THE SUBJECT
MATTER OF THE 19(A)(2) ALLEGATION LITIGATED HEREIN CONCERNED NOT ONLY
MISS KARWOSKI'S TERMINATION BUT THE ACTIVITY'S REFUSAL TO PERMIT HER TO
RETURN TO WORK WITHOUT A PSYCHIATRIC CLEARANCE. IT IS NOT CLEAR FROM
THE RECORD THAT THIS LATTER ISSUE WAS OR COULD HAVE BEEN CONSIDERED IN
THE APPEAL. ACCORDINGLY, IN ALL THE CIRCUMSTANCES, I REJECT
RESPONDENT'S CONTENTION WITH REGARD TO THE APPLICABILITY OF SECTION
19(D) TO THE CASE HEREIN.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I RECOMMEND THAT
THE ASSISTANT SECRETARY ADOPT THE ORDER AS HEREINAFTER SET FORTH WHICH
IS DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER. I ALSO RECOMMEND
THAT THE SECTION 19(A)(2) ALLEGATION BE DISMISSED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT VETERANS
ADMINISTRATION CENTER, BATH, NEW YORK, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY URGING
OR ADMONISHING THEM TO REFRAIN FROM SEEKING REPRESENTATION OR ASSISTANCE
FROM LOCAL 491, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
WORKING CONDITIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT VETERANS ADMINISTRATION CENTER, BATH, NEW
YORK, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR 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
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED: JULY 9, 1974
WASHINGTON, D.C.
WE WILL NOT URGE OR ADMONISH OUR EMPLOYEES TO REFRAIN FROM SEEKING
REPRESENTATION OR ASSISTANCE FROM LOCAL 491, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING WORKING CONDITIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
DATED: . . . BY: . . . (SIGNATURE) . . . (TITLE)
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, ROOM 3515, FEDERAL OFFICE BUILDING, 1515
BROADWAY, NEW YORK, NEW YORK 10036.
/1/ THE COMPLAINT ALSO ALLEGED VIOLATIONS OF SECTIONS 19(A)(5) AND
(6) OF THE ORDER. THE REGIONAL ADMINISTRATOR FOUND NO MERIT TO THESE
ALLEGATIONS AND THAT PORTION OF THE COMPLAINT WAS DISMISSED. NO APPEAL
WAS TAKEN FROM THE DISMISSAL.
/2/ THE RELEVANT PORTION OF THE UNFAIR LABOR PRACTICE CHARGE
PROVIDES:
"I. THAT YOU ARE IN VIOLATION OF SECTION 19(A)(1) WHICH REQUIRES
THAT AGENCY MANAGEMENT SHALL NOT INTERFERE WITH, RESTRAIN, OR COERCE AN
EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY EXECUTIVE ORDER 11491.
1. THAT THE ASSISTANT CHIEF OF PERSONNEL DID IN FACT ADVISE EMPLOYEE
KAREN KARWOSKI NOT TO CONSULT WITH THE UNION IN PURSUIT OF CORRECTING
THE CURRENT INJUSTICE IMPOSED ON HER BY MANAGEMENT.
"II. THAT YOU ARE IN VIOLATION OF SECTION 19(A)(2) WHICH REQUIRES
THAT AGENCY MANAGEMENT SHALL NOT ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A
LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE,
PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT.
THE FACTS TENDING TO ESTABLISH THIS CHARGE ARE:
1. DESPITE NUMEROUS LETTERS TO THE CONTRARY ADVISING OF EMPLOYEE
KAREN KARWOSKI'S AVAILABILITY FOR WORK, YOU HAVE DISCRIMINATED AGAINST
HER REQUEST TO RETURN TO WORK BY ARBITRARILY ESTABLISHING SUBJECTIVE
RULES WITHOUT SPECIFIC STATEMENTS OF ACTUAL DUTIES THIS EMPLOYEE HAS
BEEN UNABLE TO PERFORM. THIS TYPE OF DISCRIMINATION RELATIVE TO
CONDITIONS OF EMPLOYMENT HAS PERSISTED DESPITE ADVISEMENT FROM UNION
OFFICIALS AND PHYSICIANS TO THE CONTRARY."
/3/ THESE ARE THE ONLY ISSUES BEFORE ME SINCE THE SECTION 19(A)(5)
AND (6) ALLEGATIONS WERE DISMISSED.
/4/ SEE REPORT ON A DECISION OF THE ASSISTANT SECRETARY, REPORT
NUMBER 33.
/5/ RESPONDENT ACKNOWLEDGES IN ITS BRIEF THAT THESE MATTERS ARE
PROPER FOR CONSIDERATION BY THE ASSISTANT SECRETARY AND THE
ADMINISTRATIVE LAW JUDGE.
/6/ AT ALL TIMES MATERIAL HERETO THE UNION HAS BEEN THE EXCLUSIVE
COLLECTIVE BARGAINING REPRESENTATIVE OF ALL THE ACTIVITY'S PROFESSIONAL
AND NON-PROFESSIONAL EMPLOYEES EXCLUDING SUPERVISING AND MANAGERIAL
EMPLOYEES. THE UNION AND THE ACTIVITY ARE PARTIES TO A NEGOTIATED
AGREEMENT WHICH WAS EFFECTIVE FOR A TWO-YEAR PERIOD COMMENCING APRIL
1972.
/7/ THIS VERSION OF THE MEETING OF AUGUST 10 IS A SYNTHESIS OF THE
TESTIMONY OF MISS KARWOSKI, MRS. ALVERMANN AND THOSE PORTIONS OF MR.
HOWE'S TESTIMONY ON THIS MEETING WHICH I CREDIT. I HAVE RELIED
PRIMARILY ON MRS. ALVERMANN'S TESTIMONY WHICH IS SUBSTANTIALLY
CORROBORATED BY MISS KARWOSKI. IT IS REASONABLE THAT MRS. ALVERMANN'S
TESTIMONY WAS MORE VIVID AND COMPLETE THAN THAT OF MISS KARWOSKI
CONSIDERING THE EVENTS WHICH OCCURRED INVOLVING MISS KARWOSKI ON THE
PRECEDING DAY AND HER OBVIOUSLY DISTURBED CONDITION AT THIS TIME. I
SHALL SUBSEQUENTLY FURTHER DISCUSS MR. HOWE'S TESTIMONY REGARDING THIS
MEETING.
/8/ THIS ACCOUNT IS PRIMARILY BASED UPON THE TESTIMONY OF DR.
SYMMONS. DR. HAINSWORTH'S TESTIMONY REGARDING THIS MEETING WAS SKETCHY
AND SOMEWHAT CONFUSING. MISS KARWOSKI OFFERED NO TESTIMONY RELATIVE TO
THE MEETING BUT IN A GRIEVANCE SHE FILED WITH THE UNION ON AUGUST 28,
1972, SHE RELATED THAT DR. HAINSWORTH, IN THE PRESENCE OF HER MOTHER,
TOLD HER ON AUGUST 17, EXACTLY ONE WEEK AFTER AUGUST 10, THAT A
"DOCUMENT" FROM A PSYCHIATRIST WAS REQUIRED BEFORE SHE WOULD BE ALLOWED
TO RETURN TO WORK.
/9/ MRS. ALVERMANN AND MISS PIERCE DENY HAVING MADE SUCH A STATEMENT.
A CREDIBILITY RESOLUTION ON THIS DISCUSSION IS NOT NECESSARY TO A
DISPOSITION OF THE COMPLAINT HEREIN AND ACCORDINGLY, NONE WILL BE MADE.
/10/ UNDER THE CIRCUMSTANCES OF THIS MEETING, I FIND THAT THE
ACTIVITY WAS PUT ON NOTICE AT THIS TIME THAT MISS KARWOSKI HAD SOUGHT
AND OBTAINED THE UNION'S ASSISTANCE IN DEALING WITH HER DIFFICULTIES.
/11/ AS STATED PREVIOUSLY, THE UNFAIR LABOR PRACTICE CHARGE IN THIS
CASE (RESPONDENT EXHIBIT NO. 2) WAS DATED OCTOBER 5, 1972.
/12/ COMPLAINANT EXHIBIT NO. 4.
/13/ ON CROSS-EXAMINATION, MISS KARWOSKI DENIED THE ESSENCE OF MR.
HOWE'S VERSION OF THE AUGUST 10 MEETING. MOREOVER, MRS. ALVERMANN, A
WITNESS CALLED BY RESPONDENT WHO WAS PRESENT VIRTUALLY THROUGHOUT THE
AUGUST 10 MEETING, DID NOT GIVE ANY TESTIMONY WHICH WOULD CORROBORATE
MR. HOWE'S TESTIMONY AS DESCRIBED ABOVE.
/14/ I FIND THAT DR. SYMMONS DURING THE PERIOD RELEVANT HERETO, WAS A
SUPERVISOR WITHIN THE MEANING OF THE ORDER. THE EVIDENCE REVEALS THAT
DR. SYMMONS IN THE NORMAL COURSE OF HIS EMPLOYMENT WAS ASSIGNED A
TECHNICIAN AS AN ASSISTANT. WITH REGARD TO THIS EMPLOYEE DR. SYMMONS
WAS FULLY RESPONSIBLE TO ASSIGN TASKS TO BE PERFORMED AT THE HOSPITAL
AND DIRECT THE TECHNICIAN IN THE MANNER OF CARRYING OUT HIS DUTIES.
FURTHER, DR. SYMMONS EVALUATED THE PERFORMANCE OF THE TECHNICIAN AND THE
CHIEF OF PSYCHIATRY GENERALLY RELIED UPON DR. SYMMONS WRITTEN AND ORAL
EVALUATION OF THE EMPLOYEE WHEN SIGNING AN EMPLOYEE'S YEARLY APPRAISAL
AS TO WHETHER THAT EMPLOYEE WAS PERFORMING IN A SATISFACTORY MANNER.
/15/ CF. UNITED STATES ARMY SCHOOL/TRAINING CENTER, FORT MCCLELLAN,
ALABAMA, A/SLMR NO. 42.
/16/ THE TRANSCRIPT OF A MEETING BETWEEN THE ACTIVITY AND THE UNION
HELD ON OCTOBER 19, 1972 (COMPLAINANT EXHIBIT NO. 3) INDICATES THAT THE
UNION STRONGLY CONTESTED TO THE ACTIVITY'S POSITION IN THIS REGARD.
/17/ I ALSO REJECT THE UNION'S CONTENTION THAT ANY SECTION 19(A)(1)
VIOLATION OF THE ORDER ALSO VIOLATES SECTION 19(A)(2). WHILE A SECTION
19(A)(1) VIOLATION MAY WELL DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION, BY THE EXPRESS PROVISIONS OF SECTION 19(A)(2) THE
DISCOURAGEMENT MUST BE THE RESULT OF "DISCRIMINATION IN REGARD TO
HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT." AS SET
FORTH ABOVE, NO SUCH DISCRIMINATION HAS BEEN ESTABLISHED HEREIN.
/18/ SECTION 19(D) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT,
"ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY NOT
BE RAISED UNDER THIS SECTION..."
/19/ SEE DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, A/SLMR NO. 336.
4 A/SLMR 432; P. 590; CASE NOS. 70-2477, 70-2496 AND 70-4076;
SEPTEMBER 30, 1974.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION,
FALLON, NEVADA
A/SLMR NO. 432
THIS CASE INVOLVED UNFAIR LABOR PRACTICE COMPLAINTS FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1841 (COMPLAINANT)
AGAINST DEPARTMENT OF THE NAVY, NAVAL AIR STATION, FALLON, NEVADA
(RESPONDENT), ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER. SPECIFICALLY, THE COMPLAINT ALLEGED THAT RESPONDENT
REFUSED TO BARGAIN IN GOOD FAITH: BY ITS CONDUCT AND CERTAIN STATEMENTS
MADE BY ITS REPRESENTATIVES DURING NEGOTIATIONS HELD IN JUNE 1972; BY
ITS POSTING A LETTER DATED JANUARY 16, 1973, FROM THE ACTIVITY COMMANDER
TO THE COMPLAINANT'S PRESIDENT ON BULLETIN BOARDS THROUGHOUT THE STATION
WITH INSTRUCTIONS THAT IT BE READ AND INITIALED BY EMPLOYEES, AND BY
VIRTUE OF CERTAIN STATEMENTS IT MADE AT A LABOR-MANAGEMENT MEETING HELD
ON APRIL 26, 1973, AND ITS POSTING ON BULLETIN BOARDS OF THE MINUTES OF
THAT MEETING.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT, AMONG OTHER THINGS, THE POSTING OF MINUTES OF THE APRIL
26, 1973, LABOR-MANAGEMENT MEETING DID NOT VIOLATE SECTION 19(A)(1) AND
(6) OF THE ORDER, ALTHOUGH NOT ADOPTING THE RATIONALE FOR HIS FINDING.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE APRIL 26 MINUTES ACCURATELY
REFLECTED WHAT HAD OCCURRED AT THE PARTIES' LABOR-MANAGEMENT MEETING AND
THAT IT CONTAINED NO THREATS OR PROMISE OF BENEFIT. UNDER THE
CIRCUMSTANCES, HE FOUND THAT THE POSTING OF THE MINUTES CONSTITUTED AN
EXERCISE OF THE RESPONDENT'S RIGHT TO COMMUNICATE WITH ITS EMPLOYEES
WHICH, STANDING ALONE, DID NOT INTERFERE WITH ANY PROTECTED EMPLOYEE
RIGHTS. THE ASSISTANT SECRETARY FOUND THAT, ABSENT MUTUAL AGREEMENT
BETWEEN AN EXCLUSIVE BARGAINING REPRESENTATIVE AND AN AGENCY OR ACTIVITY
CONCERNING THE LATTERS' RIGHT TO COMMUNICATE DIRECTLY WITH UNIT
EMPLOYEES OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING
RELATIONSHIP, DIRECT COMMUNICATIONS, SUCH AS HERE INVOLVED, NECESSARILY
TENDED TO UNDERMINE THE STATUS OF AN EXCLUSIVE BARGAINING
REPRESENTATIVE. IN THE ASSISTANT SECRETARY'S VIEW, BY DIRECTLY
REPORTING TO UNIT EMPLOYEES MATTERS WHICH HAVE ARISEN IN THE CONTEXT OF
THE COLLECTIVE BARGAINING RELATIONSHIP, AN AGENCY OR ACTIVITY
NECESSARILY UNDERMINES AN EXCLUSIVE REPRESENTATIVES' RIGHT TO BE DEALT
WITH EXCLUSIVELY IN MATTERS AFFECTING THE TERMS AND CONDITIONS OF
EMPLOYMENT OF THE UNIT EMPLOYEES IT REPRESENTS. ANY LESSER STANDARD IN
HIS OPINION, CLEARLY WOULD BE IN DEROGATION OF THE COLLECTIVE BARGAINING
RELATIONSHIP. HOWEVER, NOTING THE ADMINISTRATIVE LAW JUDGE'S FINDING
THAT THE PARTIES, THROUGH MUTUAL AGREEMENT AND PAST PRACTICE, HAD
ESTABLISHED A PROCEDURE FOR THE POSTING OF MINUTES OF SUCH
LABOR-MANAGEMENT MEETINGS, THE ASSISTANT SECRETARY CONCLUDED THAT THE
COMPLAINANT WAS ESTOPPED FROM CONTENDING THAT THE APRIL 26, 1973,
POSTING WAS IN VIOLATION OF THE ORDER.
THE ASSISTANT SECRETARY REJECTED THE ADMINISTRATIVE LAW JUDGE'S
FINDING THAT THE POSTING OF A JANUARY 16, 1973, LETTER FROM THE
RESPONDENT'S COMMANDING OFFICER TO THE COMPLAINANT'S PRESIDENT DID NOT
VIOLATE THE ORDER. ALTHOUGH NOTING THAT THE LETTER CONTAINED STATEMENTS
WHICH MIGHT BE OFFENSIVE TO THE COMPLAINANT, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT IT WAS NOT SO OUTRAGEOUS OR CAPRICIOUS AS TO INTERFERE
WITH PROTECTED RIGHTS. HE REASONED THAT AN ACTIVITY CAN COMMUNICATE
WITH EMPLOYEES AND REPORT ITS VERSION OF ANY MEETINGS AS ITS POSITION IN
LABOR-MANAGEMENT MATTERS SO LONG AS THE COMMUNICATIONS DO NOT INVOLVE
UNLAWFUL THREATS AND PROMISE OF BENEFIT AND DO NOT CONSTITUTE AN ATTEMPT
TO BYPASS THE EXCLUSIVE REPRESENTATIVE. THE EVIDENCE ESTABLISHED THAT
THE POSTING IN THIS INSTANCE DID NOT INVOLVE "MINUTES" OF A MONTHLY
LABOR-MANAGEMENT MEETING, BUT RATHER, AS NOTED ABOVE, INVOLVED A LETTER
FROM THE RESPONDENT'S BASE COMMANDER REFLECTING EVENTS WHICH OCCURRED AT
A SPECIAL MEETING BETWEEN COMPLAINANT'S PRESIDENT AND THE RESPONDENT'S
EXECUTIVE OFFICER HELD TO SOLVE A NEGOTIATING PROBLEM AND AN UNFAIR
LABOR CHARGE. THE ASSISTANT SECRETARY FOUND, CONSISTENT WITH THE ABOVE
RATIONALE, THAT, ABSENT AGREEMENT BY AN EXCLUSIVE REPRESENTATIVE, IT IS
IMPROPER FOR AGENCIES OR ACTIVITIES TO COMMUNICATE DIRECTLY WITH UNIT
EMPLOYEES WITH RESPECT TO MATTERS RELATING TO THE COLLECTIVE BARGAINING
RELATIONSHIP. HE NOTED THAT THE NEED FOR SUCH POLICY IS CLEARLY
DEMONSTRATED IN THE INSTANT CASE WHERE THE RESPONDENT'S COMMUNICATION TO
UNIT EMPLOYEES CREATED AN UNFAVORABLE IMPRESSION WITH RESPECT TO
COMPLAINANT'S PRESIDENT AND, IN HIS VIEW, NECESSARILY TENDED TO DEROGATE
THE COMPLAINANT'S EXCLUSIVE BARGAINING STATUS. ACCORDINGLY, HE FOUND
THAT SUCH ACTION WAS INCONSISTENT WITH THE RESPONDENT'S OBLIGATION TO
DEAL EXCLUSIVELY WITH THE EXCLUSIVE REPRESENTATIVE IN VIOLATION OF
19(A)(6) OF THE ORDER. HOWEVER, HE FOUND THAT SUCH CONDUCT NECESSARILY
INTERFERED WITH THE RIGHTS OF UNIT EMPLOYEES IN VIOLATION OF SECTION
19(A)(1).
BASED ON THE ABOVE RATIONALE, THE ASSISTANT SECRETARY ALSO FOUND, IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE REQUIREMENT THAT
EMPLOYEES READ AND INITIAL THE POSTED JANUARY 16 LETTER WAS VIOLATIVE OF
SECTION 19(A)(1) AND (6) OF THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THE RESPONDENT TO CEASE
AND DESIST FROM THE CONDUCT FOUND VIOLATIVE OF THE ORDER AND TO TAKE
CERTAIN AFFIRMATIVE ACTIONS TO REMEDY SUCH CONDUCT.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION,
FALLON, NEVADA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1841
ON JULY 10, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN AN UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINT IN CASE NO. 70-2496 AND RECOMMENDING THAT IT
TAKE CERTAIN AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. THE
ADMINISTRATIVE LAW JUDGE ALSO FOUND OTHER ALLEGED IMPROPER CONDUCT OF
THE RESPONDENT NOT TO BE VIOLATIVE OF THE ORDER. THEREAFTER, THE
COMPLAINANT FILED EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING THE
COMPLAINANT'S EXCEPTIONS, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, EXCEPT AS MODIFIED BELOW.
THE COMPLAINTS HEREIN ALLEGED ESSENTIALLY THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY THE FOLLOWING CONDUCT:
(1) BY ITS CONDUCT AND CERTAIN STATEMENTS MADE BY ITS REPRESENTATIVES
DURING CONTRACT NEGOTIATIONS HELD ON JUNE 5, 7, 9, 14, 16, AND 19, 1972;
(2) BY ITS POSTING OF A LETTER DATED JANUARY 16, 1973, FROM THE
RESPONDENT TO THE COMPLAINANT'S PRESIDENT ON BULLETIN BOARDS THROUGHOUT
THE NAVAL AIR STATION WITH INSTRUCTIONS THAT IT BE READ AND INITIALED BY
EMPLOYEES, WITHOUT FIRST SHOWING THE LETTER TO THE COMPLAINANT; AND (3)
BY VIRTUE OF CERTAIN STATEMENTS IT MADE AT A LABOR-MANAGEMENT MEETING
HELD ON APRIL 26, 1973, AND ITS POSTING ON BULLETIN BOARDS OF THE
MINUTES OF THAT MEETING.
THE ESSENTIAL FACTS OF THE CASE ARE SET FORTH IN DETAIL IN THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS AND I SHALL REPEAT
THEM ONLY TO THE EXTENT NECESSARY.
THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER THINGS, THAT THE
RESPONDENT'S POSTING OF THE MINUTES OF THE APRIL 26, 1973,
LABOR-MANAGEMENT MEETING DID NOT VIOLATE SECTION 19(A)(1) AND (6) OF THE
ORDER. IN THIS CONNECTION, HE NOTED THAT THE PARTIES' EXPIRED
NEGOTIATED AGREEMENT HAD CONTAINED A PROVISION FOR THE POSTING OF SUCH
MINUTES AND THAT THE COMPLAINANT DID NOT PROVIDE FOR ANY CHANGE IN THE
PROCEDURE FOR POSTING IN ITS NEW CONTRACT PROPOSALS. /1/ FURTHERMORE,
HE NOTED THAT THERE EXISTED A PAST PRACTICE FOR THE POSTING OF MINUTES
IRRESPECTIVE OF WHETHER OR NOT THE COMPLAINANT AGREED TO THEIR ACCURACY.
IN FINDING THAT THE RESPONDENT'S POSTING OF THE APRIL 26 MINUTES WAS
NOT VIOLATIVE OF THE ORDER, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
THE MINUTES ACCURATELY REFLECTED WHAT OCCURRED AT THE LABOR-MANAGEMENT
MEETING INVOLVED AND CONTAINED NO THREATS OR PROMISE OF BENEFIT TO THE
EMPLOYEE. UNDER ALL OF THESE CIRCUMSTANCES, HE FOUND THAT THE POSTING
OF THESE MINUTES CONSTITUTED AN EXERCISE OF THEACTIVITY'S RIGHT TO
COMMUNICATE WITH ITS EMPLOYEES WHICH, STANDING ALONE, DID NOT INTERFERE
WITH ANY PROTECTED EMPLOYEE RIGHTS.
WHILE I ADOPT THE ULTIMATE DISPOSITION OF THE ADMINISTRATIVE LAW
JUDGE IN THIS REGARD, I DO NOT ADOPT HIS RATIONALE. THUS, CONTRARY TO
THE ADMINISTRATIVE LAW JUDGE, I FIND THAT, ABSENT MUTUAL AGREEMENT
BETWEEN AN EXCLUSIVE BARGAINING REPRESENTATIVE AND AN AGENCY OR ACTIVITY
CONCERNING THE LATTERS' RIGHT TO COMMUNICATE DIRECTLY WITH UNIT
EMPLOYEES OVER MATTERS RELATING TO THE COLLECTIVE BARGAINING
RELATIONSHIP, DIRECT COMMUNICATIONS SUCH AS THAT INVOLVED IN THIS
SITUATION NECESSARILY TEND TO UNDERMINE THE STATUS OF THE EXCLUSIVE
BARGAINING REPRESENTATIVE. SECTION 10(E) OF THE ORDER PROVIDES, IN
PART, THAT "WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION, IT IS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN THE UNIT
. . . IS ENTITLED TO ACT FOR . . . ALL EMPLOYEES IN THE UNIT . . . AND
IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL EMPLOYEES IN THE
UNIT . . ." IN MY VIEW, BY DIRECTLY REPORTING TO UNIT EMPLOYEES MATTERS
WHICH HAVE ARISEN IN THE CONTEXT OF THE COLLECTIVE BARGAINING
RELATIONSHIP, AN AGENCY OR ACTIVITY NECESSARILY UNDERMINES AN EXCLUSIVE
REPRESENTATIVE'S RIGHTS SET FORTH IN SECTION 10(E) TO BE DEALT WITH
EXCLUSIVELY IN MATTERS AFFECTING THE TERMS AND CONDITIONS OF EMPLOYMENT
OF THE UNIT EMPLOYEES IT REPRESENTS. ANY LESSER STANDARD CLEARLY WOULD
BE IN DEROGATION OF THE COLLECTIVE BARGAINING RELATIONSHIP.
AS NOTED ABOVE, HOWEVER, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
PARTIES HEREIN, THROUGH MUTUAL AGREEMENT AND PAST PRACTICE, HAD
ESTABLISHED A PROCEDURE FOR THE POSTING ON BULLETIN BOARDS THE MINUTES
OF THE PARTIES' MONTHLY LABOR-MANAGEMENT MEETINGS. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE COMPLAINANT IS ESTOPPED FROM CONTENDING
THAT RESPONDENT'S POSTING OF THE MINUTES OF THE APRIL 26, 1973,
LABOR-MANAGEMENT MEETING WAS VIOLATIVE OF THE ORDER. ACCORDINGLY, IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
RESPONDENT'S CONDUCT IN THIS REGARD DID NOT VIOLATE SECTION 19(A)(1) AND
(6) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE POSTING BY THE
RESPONDENT OF THE JANUARY 16, 1973, LETTER FORM CAPTAIN MUNCIE TO MS.
SANDERS DID NOT CONSTITUTE EITHER AN ATTEMPT TO BYPASS THE COMPLAINANT
OR TO INTERFERE WITH ANY OTHER RIGHTS PROTECTED UNDER THE ORDER. UNDER
THE CIRCUMSTANCES, I DISAGREE WITH THIS FINDING OF THE ADMINISTRATIVE
LAW JUDGE. THUS, THE EVIDENCE ESTABLISHED THAT THE POSTING IN THIS
INSTANCE DID NOT INVOLVE THE POSTING OF "MINUTES" OF A MONTHLY
LABOR-MANAGEMENT MEETING IN ACCORDANCE WITH ARTICLE V, SECTION 3 OF THE
PARTIES' EXPIRED NEGOTIATED AGREEMENT, BUT, RATHER, INVOLVED THE POSTING
OF THE CONTENTS OF A LETTER TO THE COMPLAINANT'S PRESIDENT REFLECTING
THE EVENTS WHICH OCCURRED AT A SPECIAL MEETING BETWEEN THE RESPONDENT'S
EXECUTIVE OFFICER AND THE COMPLAINANT'S PRESIDENT HELD TO SOLVE A
NEGOTIATING PROBLEM AND AN UNFAIR LABOR CHARGE. IN CONSIDERING THE
POSTING OF THIS LETTER, THE ADMINISTRATIVE LAW JUDGE REASONED THAT AN
ACTIVITY CAN COMMUNICATE WITH EMPLOYEES AND REPORT ITS VERSION OF ANY
MEETINGS AS ITS POSITION IN LABOR-MANAGEMENT MATTERS SO LONG AS THE
COMMUNICATIONS DO NOT INVOLVE UNLAWFUL THREATS AND PROMISE OF BENEFIT
AND DO NOT CONSTITUTE AN ATTEMPT TO BYPASS THE EXCLUSIVE REPRESENTATIVE.
ALTHOUGH NOTING THAT THE LETTER CONTAINED STATEMENTS WHICH MIGHT BE
OFFENSIVE TO THE COMPLAINANT, HE FOUND THAT THE LETTER WAS NOT SO
OUTRAGEOUS OR CAPRICIOUS AS TO INTERFERE WITH PROTECTED RIGHTS.
AS DISCUSSED ABOVE, ABSENT AGREEMENT BY AN EXCLUSIVE REPRESENTATIVE,
I FIND THAT IT IS IMPROPER FOR AGENCIES OR ACTIVITIES TO COMMUNICATE
DIRECTLY WITH UNIT EMPLOYEES WITH RESPECT TO MATTERS RELATING TO THE
COLLECTIVE BARGAINING RELATIONSHIP. THE NEED FOR SUCH A POLICY IS
CLEARLY DEMONSTRATED IN THIS INSTANCE WHERE THE RESPONDENT'S
COMMUNICATION TO UNIT EMPLOYEES CREATED AN UNFAVORABLE IMPRESSION WITH
RESPECT TO THE ACTIONS OF THE COMPLAINANT'S PRESIDENT AND, IN MY VIEW,
NECESSARILY TENDED TO UNDERMINE THE COMPLAINANT'S EXCLUSIVE BARGAINING
STATUS. UNDER THESE CIRCUMSTANCES, THEREFORE, I FIND THAT THE
RESPONDENT'S POSTING OF CAPTAIN MUNCIE'S LETTER OF JANUARY 16, 1973, TO
THE COMPLAINANT'S PRESIDENT WAS INCONSISTENT WITH ITS OBLIGATION UNDER
THE ORDER TO DEAL EXCLUSIVELY WITH THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES IN VIOLATION OF SECTION 19(A)(L). MOREOVER, I FIND THAT SUCH
CONDUCT NECESSARILY INTERFERED WITH THE RIGHTS OF UNIT EMPLOYEES IN
VIOLATION OF SECTION 19(A)(1).
FURTHER, CONSISTENT WITH THE ABOVE RATIONALE, I FIND, IN AGREEMENT
WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE REQUIREMENT THAT EMPLOYEES
READ AND INITIAL THE POSTED JANUARY 16 LETTER WAS VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER. AND BASED ON THE RATIONALE OUTLINED ABOVE, SUCH
CONDUCT ALSO WAS CONSIDERED TO BE VIOLATIVE OF SECTION 19(A)(6) OF THE
ORDER.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
NAVY, NAVAL AIR STATION, FALLON, NEVADA SHALL:
1. CEASE AND DESIST FROM:
(A) POSTING LETTERS ON BULLETIN BOARDS RELATING TO MEETINGS
PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP BETWEEN FALLON
NAVAL AIR STATION AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1841, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE UNLESS THERE EXISTS A
MUTUAL AGREEMENT TO PERMIT SUCH POSTING;
(B) REQUIRING EMPLOYEES TO READ AND INITIAL COMMUNICATIONS POSTED ON
BULLETIN BOARDS PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP
BETWEEN FALLON NAVAL AIR STATION AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1841, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, UNLESS
THERE EXISTS A MUTUAL AGREEMENT TO PERMIT SUCH ACTION;
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT NAVAL AIR STATION, FALLON, NEVADA, COPIES
OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER,
DEPARTMENT OF THE NAVY, NAVAL AIR STATION, FALLON, NEVADA, AND THEY
SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINTS IN CASE NOS. 70-2477 AND
70-4076 BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ ARTICLE V, SECTION 3 OF THE EXPIRED AGREEMENT STATED, IN
PERTINENT PART: "MINUTES OF THESE MEETINGS/(MONTHLY LABOR-MANAGEMENT
MEETINGS) WILL BE POSTED ON CIVILIAN BULLETIN BOARDS BY THE EMPLOYER AND
THREE (3) COPIES FURNISHED TO THE UNION."
WE WILL NOT POST LETTERS ON BULLETIN BOARDS RELATING TO MEETINGS
PERTAINING TO THE COLLECTIVE BARGAINING RELATIONSHIP BETWEEN FALLON
NAVAL AIR STATION AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1841, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, UNLESS THERE EXISTS A
MUTUAL AGREEMENT TO PERMIT SUCH POSTING.
WE WILL NOT REQUIRE OUR EMPLOYEES TO READ AND INITIAL COMMUNICATIONS
POSTED ON BULLETIN BOARDS PERTAINING TO THE COLLECTIVE BARGAINING
RELATIONSHIP BETWEEN THE FALLON NAVAL AIR STATION AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1841, OUR EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, UNLESS THERE EXISTS A MUTUAL AGREEMENT TO PERMIT SUCH
ACTION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
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
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, WHOSE ADDRESS IS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
DEPARTMENT OF THE NAVY
NAVAL AIR STATION
FALLON, NEVADA,
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1841,
A. S. CALCAGNO
NAVY REGIONAL OFFICE OF
CIVILIAN MANPOWER MANAGEMENT
PHELAN BUILDING
760 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94102
RICHARD TAYLOR
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO)
3501 ARDEN CREEK ROAD
SACRAMENTO, CALIFORNIA 95825
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON JANUARY 3, 1973, AND AN AMENDED
COMPLAINT FILED ON JANUARY 16, 1973, IN CASE NO. 70-2477; A COMPLAINT
FILED ON MAY 8, 1973, IN CASE NO. 70-2496; AND A COMPLAINT FILED ON
SEPTEMBER 19, 1973, IN CASE NO. 70-4076; ALL UNDER EXECUTIVE ORDER
11491, AS AMENDED, (HEREINAFTER CALLED THE ORDER) BY AFGE LOCAL 1
(HEREINAFTER CALLED THE COMPLAINANT OR UNION) AGAINST DEPARTMENT OF THE
NAVY, NAVAL AIR STATION, FALLON, NEVADA (HEREINAFTER CALLED THE
RESPONDENT OR ACTIVITY) AN ORDER CONSOLIDATING CASES AND NOTICE OF
HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL ADMINISTRATOR FOR THE
SAN FRANCISCO REGION ON NOVEMBER 27, 1973.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON DECEMBER
11 AND 12, 1973, IN RENO, NEVADA. ALL PARTIES WERE REPRESENTED AND
AFFORDED A FULL OPPORTUNITY TO BE HEARD AND TO PRESENT WITNESSES AND TO
INTRODUCE OTHER RELEVANT EVIDENCE ON THE ISSUES INVOLVED. UPON THE
CONCLUSION OF THE TAKING OF TESTIMONY BOTH PARTIES WERE GIVEN AN
OPPORTUNITY TO MAKE ORAL ARGUMENT. ON OR ABOUT FEBRUARY 11, 1974, BOTH
PARTIES FILED BRIEFS WITH THE UNDERSIGNED. UPON THE ENTIRE RECORD
HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR,
AND UPON THE RELEVANT EVIDENCE ADDUCED AT THE HEARING, /1/ I MAKE THE
FOLLOWING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
THE UNION CONTENDS THAT THE ACTIVITY VIOLATED THE ORDER IN FOLLOWING
THREE AREAS:
A. CASE NO. 70-2477. THE COMPLAINANT ALLEGES THAT THE ACTIVITY
REFUSED TO BARGAIN IN GOOD FAITH IN VIOLATION OF SECTIONS 19(A)(6) AND
(1) OF THE ORDER BY ITS CONDUCT AND CERTAIN STATEMENTS MADE BY ITS
REPRESENTATIVES DURING CONTRACT NEGOTIATIONS HELD ON JUNE 5, 7, 9, 14,
16, AND 19, 1972.
B. CASE NO. 70-2496. THE COMPLAINANT ALLEGES THAT THE ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY POSTING A LETTER DATED
JANUARY 16, 1973, FROM THE ACTIVITY COMMANDER TO THE UNION PRESIDENT ON
BULLETIN BOARDS THROUGHOUT THE STATION WITH INSTRUCTIONS THAT IT BE READ
AND INITIALED BY EMPLOYEES. THIS LETTER WAS POSTED WITHOUT FIRST BEING
SHOWN TO AND APPROVED BY THE UNION AND IT ALLEGEDLY CONTAINS THREATS AND
ALLEGEDLY DEMONSTRATES THAT THE ACTIVITY HOLDS THE UNION IN DISDAIN.
C. CASE NO. 704096. THE COMPLAINANT ALLEGES THAT THE ACTIVITY
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY POSTING ON BULLETIN
BOARDS MINUTES OF A LABOR-MANAGEMENT MEETING HELD ON APRIL 26, 1973, AND
BY ITS DISCUSSION OF PERSONNEL DETAILS AT THIS MEETING.
THE ACTIVITY DENIES THAT IT ENGAGED IN CONDUCT WHICH VIOLATED THE
EXECUTIVE ORDER. THE ACTIVITY ARGUES FURTHER THAT NEITHER THE CHARGE
LETTER NOR THE ORIGINAL COMPLAINT FILED IN CASE NO. 70-2477 COMPLIED
WITH THE REQUIREMENTS OF THE RULES AND REGULATIONS.
I. BACKGROUND
AT ALL TIMES MATERIAL HEREIN THE UNION WAS THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR ALL CIVILIAN EMPLOYEES OF THE FALLON NAVAL AIR
STATION EXCLUDING SUPERVISORY, MANAGEMENT, AND PROFESSIONAL EMPLOYEES,
AND EMPLOYEES OF THE NONAPPROPRIATED FUNDS, AND OF ANY OTHER MILITARY
UNIT. AT THE TIME OF THE ALLEGED VIOLATIONS THERE WERE BETWEEN 180 AND
200 EMPLOYEES IN THE UNIT REPRESENTED BY THE UNION. THE UNION AND THE
ACTIVITY HAD A COLLECTIVE BARGAINING AGREEMENT WHICH BECAME EFFECTIVE ON
MAY 12, 1970, AND WAS DUE TO EXPIRE ON MAY 11, 1972. /2/
II. NEGOTIATIONS:
A. COMMENCEMENT.
ON OR ABOUT NOVEMBER 30, 1971, BASE COMMANDER, CAPTAIN W. B. MUNCIE,
ADVISED THE UNION TO GET ITS PROPOSALS FOR A NEW CONTRACT READY. ON
FEBRUARY 16, 1972, THE ACTIVITY FORWARDED IT'S CONTRACT PROPOSALS TO THE
UNION. SOON THEREAFTER THE ACTIVITY SENT THE UNION TWO ADDITIONAL
PROPOSED CONTRACT ARTICLES. THE UNION DID NOT AT THAT TIME SUBMIT ANY
OF ITS PROPOSALS BUT RATHER INSISTED UPON REACHING AGREEMENT AS TO
GROUND RULES FOR NEGOTIATIONS BEFORE IT SUBMITTED ITS PROPOSALS. THE
ACTIVITY TRIED TO CONVINCE THE UNION TO TRY TO REACH AN AGREEMENT ON A
CONTRACT THROUGH INFORMAL MEANS. THE UNION WANTED FORMAL GROUND RULES
FIRST. THE PARTIES MET AND GROUND RULES FOR NEGOTIATIONS WERE AGREED
UPON AND SIGNED JUNE 2, 1972. /3/ THESE GROUND RULES PROVIDED THAT A
MAXIMUM OF FOUR UNION NEGOTIATORS WOULD BE ON OFFICIAL TIME DURING
NEGOTIATIONS UNTIL A TOTAL OF 160 HOURS HAD BEEN CONSUMED BY ALL
EMPLOYEES.
THE UNION FINALLY SUBMITTED ITS CONTRACT PROPOSALS DURING LATE MAY
1972. IT CONTAINED ABOUT 32 ARTICLES. THE ACTIVITY ALLEGEDLY TOOK
ABOUT 17 OF THE UNION'S PROPOSED ARTICLES, REWROTE AND SHORTENED THEM
AND ADDED THEM TO THE ACTIVITY'S EXISTING CONTRACT PROPOSAL AND
SUBMITTED IT TO THE UNION ON OR ABOUT JUNE 2.
(B) JUNE 5 MEETING
THE FIRST NEGOTIATION MEETING WAS HELD ON JUNE 5, 1972. THE CHIEF
UNION NEGOTIATOR WAS DANA GREENLEAF, WHO REMAINED THE UNION'S CHIEF
NEGOTIATOR UNTIL THE MEETING OF JUNE 14 AT WHICH TIME PHYLLIS SANDERS
BECAME THE UNION'S CHIEF NEGOTIATOR. THE ACTIVITY'S CHIEF NEGOTIATOR
WAS COMMANDER S. W. DUNTON, WHO THE RECORD ESTABLISHED HAD FULL AND
COMPLETE AUTHORITY TO BARGAIN, NEGOTIATE AND REACH AGREEMENT ON BEHALF
OF THE ACTIVITY. MS. SANDERS KEPT NOTES OF THESE MEETINGS; WHICH NOTES
WERE SOON AFTERWARDS WRITTEN INTO THE FORM OF MINUTES AND TYPED. /4/
CAPTAIN MUNCIE OPENED THE MEETING AND ADDRESSED THE NEGOTIATORS. HE
URGED THOSE PRESENT TO AGREE UPON A CONTRACT AS QUICKLY AS POSSIBLE.
THE UNION ALLEGES AND IT IS FOUND THAT CAPTAIN MUNCIE STATED THAT THE
ACTIVITY SUBMITTED WELL WRITTEN COUNTER-PROPOSALS "WITHOUT ALL THAT
GARBAGE," AND THAT MR. GREENLEAF HAD SAID HE COULD NEGOTIATE A CONTRACT
IN TWO DAYS. CAPTAIN MUNCIE STATED FURTHER THAT ". . . I WILL NOT
ACCEPT ANY CONTRACT THAT HAS ANY UNNECESSARY AND RIDICULOUS REQUESTS.
WE HAVE HAD GOOD CONTRACTS IN THE PAST AND I WANT THIS ONE TO BE THE
SAME. NO GARBAGE." CAPTAIN MUNCIE DID NOT DENY THAT HE MIGHT HAVE USED
THE ABOVE LANGUAGE BUT STATED IT WAS IN THE CONTEXT OF URGING THE
NEGOTIATORS TO TRY TO REACH A CONTRACT AS QUICKLY AS POSSIBLE AND THAT
SUCH CONTRACT REACHED SHOULD BE WRITTEN IN CLEAR AND CONCISE LANGUAGE
AND SHOULD NOT CONTAIN A LOT OF UNCLEAR OR IRRELEVANT MATTERS.
COMMANDER DUNTON IS ALLEGED TO HAVE SAID THAT THE UNION SHOULD JUST
SIGN MANAGEMENT'S COUNTER-PROPOSALS; THE NEGOTIATIONS COULD BE
CONCLUDED IN 10 MINUTES. COMMANDER DUNTON IS ALLEGED TO HAVE REPEATED,
A NUMBER OF TIMES DURING THE NEGOTIATIONS THAT THE UNION SHOULD SIGN THE
ACTIVITY'S COUNTER-PROPOSALS. /5/ THE PARTIES THEN GOT DOWN TO
NEGOTIATIONS /6/ AND COMMENCED DISCUSSING FIRST THE PREAMBLE AND THEN
CERTAIN ARTICLES. THERE WAS A DISPUTE AS TO WHICH NUMBERING SYSTEM, THE
UNION'S OR MANAGEMENT'S, SHOULD BE USED, EACH SIDE INSISTING ON THEIR
OWN. ALTHOUGH IT WAS NOT CLEAR WHETHER ONE OR THE OTHER WAS USED
THROUGHOUT NEGOTIATIONS, THE MINUTES INDICATED THAT AT LEAST AT THIS
MEETING, TO SOME DEGREE, THE UNION'S NUMBERING SYSTEM WAS USED. THE
PARTIES DISCUSSED THE PREAMBLE AND A NUMBER OF ARTICLES AND REACHED
AGREEMENT ON A PREAMBLE /7/ AND SOME ARTICLES. THE PARTIES GAVE THEIR
REASONS FOR THEIR DEMANDS AND FOR THE SPECIFIC LANGUAGE DIFFERENCES. IN
SOME CASES THEY MODIFIED VARIOUS LANGUAGE AS PROPOSED BY EACH SIDE
BEFORE AGREEING TO PARTICULAR ARTICLES. /8/ WITH RESPECT TO ARTICLES
NOT AGREED TO, EACH SIDE EXPRESSED ITS DEMANDS AND THE REASONS AND
JUSTIFICATION IN SUPPORT THEREOF. THERE WAS SOME DISCUSSION AND
DISAGREEMENT AS TO PRECISE LANGUAGE TO BE USED IN CERTAIN OTHER
ARTICLES. /9/ THE RECORD ESTABLISHES THAT THESE LANGUAGE DIFFERENCES
WERE SUBSTANTIAL AND NOT MERELY FRIVOLOUS. THE PARTIES IN ADDITION TO
AGREEING TO CERTAIN ARTICLES SET OTHERS ASIDE. THE RECORD ESTABLISHES
THAT OFTEN AS ARTICLES WERE RAISED COMMANDER DUNTON URGED THE UNION TO
SIGN THE ACTIVITY'S COUNTER-PROPOSAL. THE MINUTES INDICATE THAT WITH
RESPECT TO ARTICLE I THE ACTIVITY'S NEGOTIATING COMMITTEE, DURING A
BREAK, MET WITH CAPTAIN MUNCIE AND THEN ADVISED THE UNION THAT THE
ACTIVITY WISHED TO CONTINUE TO URGE ITS COUNTER-PROPOSAL.
THE MINUTES INDICATE THAT CAPTAIN MUNCIE RETURNED TO THE MEETING AND
STATED THAT HE HAD "BAD NEWS" FOR THE UNION. HE STATED THAT SOME
FIRE-FIGHTERS HAD BEEN IN CONTACT WITH THE NATIONAL FIRE FIGHTERS
ASSOCIATION AND WISHED TO WITHDRAW FROM THE UNION. CAPTAIN MUNCIE
ADVISED THE UNION TO BE CAREFUL "SOME OTHER UNION MAY TAKE OVER AND THEN
WE WOULD HAVE TWO UNIONS. SO I SUGGEST THAT YOU GET THE CONTRACT SIGNED
QUICKLY." CAPTAIN MUNCIE DID NOT RECALL RETURNING TO THAT MEETING BUT
DID RECALL INFORMING THE UNION THAT SOME DISGRUNTLED FIRE-FIGHTERS HAD
ADVISED HIM THAT THEY WISHED TO WITHDRAW FROM THE UNION AND THAT THE
UNION MIGHT BEFORE LONG BE IN A POSITION TO BE CHALLENGED. /10/ AT THE
CLOSE OF THE MEETING THE PARTIES AGREED TO ALTERNATE DRAWING UP THE
AGENDA FOR SUCCEEDING MEETINGS. THE UNION SUBMITTED AND THE ACTIVITY
AGREED TO AN AGENDA FOR THE JUNE 7 MEETING. THIS FIRST MEETING LASTED,
WITH BREAKS, FROM 8:00 A.M. UNTIL 3:30 P.M.
(C) JUNE 7 MEETING
AT THE JUNE 7 NEGOTIATING MEETING, AT THE ACTIVITY'S REQUEST AND WITH
THE UNION'S AGREEMENT, THE PARTIES DISCUSSED THOSE ARTICLES THAT HAD
BEEN BROUGHT UP AND DISCUSSED AT THE JUNE 5 MEETING BUT HAD NOT BEEN
AGREED UPON. A DISPUTE AROSE AS TO A COUNTER-PROPOSAL BY THE ACTIVITY
WITH RESPECT TO SECTION C OF ARTICLE V, MANAGEMENT RIGHTS AND
RESPONSIBILITIES. THE ACTIVITY'S PROPOSAL INDICATED AT THE BOTTOM THAT
IT HAD BEEN "TAKEN RIGHT FROM THE E.O.". THE UNION ALLEGED THAT IT WAS
NOT EXACTLY TAKEN FROM THE EXECUTIVE ORDER. THE ACTIVITY ASKED TO
MERELY CROSS OUT THE LANGUAGE "TAKEN FROM E.O." THE UNION INSISTED THEY
BE GIVEN A COPY OF THE COUNTER-PROPOSAL WITH THAT LANGUAGE INCLUDED.
THE ACTIVITY REFUSED. THIS ENTIRE ARTICLE WAS THEN SET ASIDE TO ALLOW
THE UNION AN OPPORTUNITY TO STUDY CERTAIN COUNTER-PROPOSALS.
THERE WAS ALSO SOME CONFUSION WHEN THE UNION REQUESTED A COPY OF THE
MAY 12, 1972 EDITION OF "THE FEDERAL LABOR CONSULTANT." THE ACTIVITY'S
REPRESENTATIVES AT FIRST DID NOT SEEM TO KNOW WHAT THE UNION WAS
REFERRING TO AND AFTER A DISCUSSION OF ABOUT 30 MINUTES FURNISHED THE
UNION A COPY OF THE PUBLICATION.
THE UNION'S PROPOSED ARTICLE VII, EMPLOYER-UNION COOPERATION, WHICH
PROVIDED, INTER ALIA, THAT "NOTIFICATION OF EMPLOYEES, THEIR EMPLOYMENT,
RETIREMENT OR DEATH, WILL BE MADE TO THE UNION MONTHLY . . ." THE
PRECEEDING SENTENCE IN THE PROPOSAL PROVIDED THAT MANAGEMENT WILL GIVE
THE UNION A LIST OF "ALL EMPLOYEES IN THE UNIT" (EMPHASIS ADDED).
DURING THE DISCUSSION OF THIS ARTICLE THE ACTIVITY'S REPRESENTATIVE IS
ALLEGED IN THE MINUTES TO HAVE STATED THAT IN ORDER TO SUPPLY SUCH A
LIST IT MUST HAVE A LIST OF UNION MEMBERS. THE MINUTES QUOTED THE
ACTIVITY REPRESENTATIVE AS STATING: "HOW ELSE WOULD MANAGEMENT KNOW WHO
TO INCLUDE ON THE LIST . . .?" THE ACTIVITY CONTENDS THAT IT REQUESTED
THE LIST OF UNION MEMBERS BECAUSE THE UNION WANTED TO KNOW WHEN THE
UNION MEMBERS WERE TRANSFERRED. IT IS CONCLUDED, NOTING PARTICULARLY
THE SIMILARITY BETWEEN THE WORDS "UNIT" AND "UNION" AND WHAT WAS
ACTUALLY SAID AT THE NEGOTIATIONS, THAT THERE WAS SUBSTANTIAL CONFUSION
BETWEEN THE PARTIES AS TO WHETHER THE UNION WISHED TO BE NOTIFIED OF
TRANSFERS OF MEMBERS OF THE UNIT OF MEMBERS OF THE UNION. IT SHOULD BE
NOTED THAT THE MINUTES INDICATE THAT THE PARTIES THEN DID SUBSTANTIALLY
AGREE TO ARTICLE VII WHICH CONSISTED OF SECTIONS A THROUGH H, SOME OF
WHICH SECTIONS WERE IN THE LANGUAGE PROPOSED BY THE UNION AND SOME WERE
PROPOSED BY THE ACTIVITY, EXCEPT THAT IN ONE SECTION THE ACTIVITY WISHED
TO ADD THE WORD "LEGAL" BEFORE THE WORD "ACTIVITIES" TO THAT SECTION
WHICH PROVIDED THAT THERE SHALL BE NO RESTRAINT OF UNION REPRESENTATIVES
BECAUSE OF HIS "INVOLVEMENT IN UNION ACTIVITIES." THE MINUTES INDICATE
THAT THIS WAS SO AS NOT TO PROTECT EMPLOYEES WHO MAY "GET INVOLVED IN
ILLEGAL UNION ACTIVITIES." WHILE MAKING THE STATEMENT COMMANDER DUNTON
ASKED IF THE UNION MEMBERS PRESENT WERE PROUD OF THEIR INVOLVEMENT IN
THE UNION. THE UNION REPRESENTATIVES REPLIED "YES". DURING THIS
MEETING THE PARTIES REACHED AGREEMENT AS TO SOME ARTICLES AND NOT AS TO
OTHERS. DURING THESE DISCUSSIONS OF PROPOSED ARTICLES BOTH SIDES
APPARENTLY EXPLAINED THEIR POSITIONS AND LISTENED TO THE OTHER SIDES
POSITION. AGAIN THEIR WAS SOME DISCUSSION AS TO THE PRECISE WORDS TO BE
USED IN CERTAIN ARTICLES. WHEN DISCUSSING ARTICLE XIX, TRAINING AND
EMPLOYEE DEVELOPMENT, COMMANDER DUNTON IS ALLEGED TO HAVE SAID THAT
EMPLOYEES SHOULD NOT GO TO A TRAINING PROGRAM; THAT EMPLOYEES SHOULD
REMAIN ON THE JOB AND EARN THEIR PAY CHECKS. COMMANDER DUNTON DENIED
MAKING SUCH A STATEMENT. IN FACT THIS ARTICLE WAS THEN RATHER QUICKLY
AGREED TO BY THE TWO PARTIES. THIS ENTIRE DISCUSSION AND AGREEMENT WITH
RESPECT TO ARTICLE XIX, AS REFLECTED IN MINUTE TOOK LESS THAN 45
MINUTES.
THE ACTIVITY SUBMITTED AND THE UNION ACCEPTED AN AGENDA FOR THE JUNE
9 MEETING.
(D) JUNE 9 MEETING
THIS MEETING WAS QUITE SHORT. THE PARTIES DISCUSSED THEIR RESPECTIVE
POSITION OF ARTICLE XXVIII, EMPLOYEE DEBTS. THERE WAS SUBSTANTIAL
DISAGREEMENT AS TO THIS ARTICLE; IT HAD BEEN DISCUSSED AT THE PRIOR
MEETING. AFTER ABOUT AN HOUR OF DISCUSSION IT WAS AGREED TO SET IT
ASIDE. THE PARTIES THEN DISCUSSED ARTICLE IX, USE OF OFFICIAL
FACILITIES. THERE WAS A DISCUSSION AS TO WHETHER THE ACTIVITY WOULD
PROVIDE THE UNION WITH A PERMANENT OFFICE, AS THE UNION DESIRED OR WITH
AN OFFICE ON A "SPACE AVAILABLE" BASIS, AS THE ACTIVITY OFFERED. BOTH
SIDES EXPLAINED THEIR POSITIONS BUT NO AGREEMENT WAS REACHED ON THIS
POINT. THERE WAS, HOWEVER, SUBSTANTIAL AGREEMENT ON THE OTHER SECTIONS
OF THIS ARTICLE. THE BASE COMMANDER WAS GOING ON LEAVE FOR ABOUT TWO
WEEKS AND COMMANDER DUNTON, WHO WOULD BE ACTING COMMANDER, REQUESTED
THAT THE MEETING ADJOURN SO THAT HE COULD CONFER WITH CAPTAIN MUNCIE
ABOUT MATTERS CONCERNING THE RUNNING OF THE POST. THIS WAS AGREED TO BY
THE UNION AND THE NEXT MEETING WAS SCHEDULED FOR JUNE 14.
(E) JUNE 14 MEETING.
THIS IS THE MEETING AT WHICH MS. SANDERS REPLACED MR. GREENLEAF AS
THE CHIEF UNION NEGOTIATOR. THIS MEETING APPARENTLY CONVENED AT 8:00
A.M. THE UNION AT FIRST STATED THAT IT WISHED TO CONTINUE DISCUSSING
ARTICLE IX, USE OF OFFICIAL FACILITIES, BECAUSE SUCH DISCUSSION HAD NOT
BEEN COMPLETED. BEFORE THE DISCUSSION STARTED, HOWEVER, THE UNION
REPRESENTATIVE GAVE A TALK CONCERNING THE AIMS OF THE UNION NEGOTIATORS,
REFERRING TO THE NATIONAL LABOR RELATIONS ACT AND THE FEDERAL
LABOR-MANAGEMENT CONSULTANT.
NEITHER THE UNION OR THE ACTIVITY CHANGED THEIR POSITION WITH RESPECT
TO ARTICLE IX AND APPARENTLY RATHER THAN DISCUSS IT FURTHER, THE UNION
DECIDED TO SET IT ASIDE. THE PARTIES THEN DISCUSSED THE OTHER ARTICLES
ON THE AGENDA. NO AGREEMENTS WERE MADE-- BOTH SIDES INSISTED UPON THEIR
PROPOSALS. IN A FEW SITUATIONS THE ACTIVITY INSISTED ON ITS PROPOSAL
OR, IN THE ALTERNATIVE STATED THAT THE ACTIVITY'S REGULATIONS WOULD BE
SUFFICIENT AND NO ARTICLE IN THE CONTRACT WAS NECESSARY. AT 10:10 A.M.
ALL THE ARTICLES ON THE AGENDA HAD BEEN BROUGHT UP, ALTHOUGH THE
DISCUSSIONS WERE APPARENTLY QUITE BRIEF, AND THE UNION LEFT THE MEETING.
THE ACTIVITY'S REPRESENTATIVES PROTESTED, STATING THEY WERE PREPARED TO
STAY FOR THE ENTIRE DAY TO DISCUSS THE ARTICLES.
(F) JUNE 16 MEETING.
THE MEETING CONVENED AT ABOUT 8:00 A.M. AT THE OUTSET OF THIS
MEETING THE UNION AND MANAGEMENT DISAGREED AS TO WHETHER THERE WAS ANY
UNFINISHED BUSINESS AND WHETHER THERE WERE TOO MANY NEW ARTICLES SLATED
FOR DISCUSSION. THE PARTIES AGREED TO FIRST TAKE UP UNFINISHED BUSINESS
OR SET ASIDE ARTICLES AND THEN TO DISCUSS THE FIRST EIGHT ARTICLES ON
THE UNION'S AGENDA. THE PARTIES AGAIN DISCUSSED WHETHER ARTICLE I
SHOULD SET FORTH THAT IT APPLIED TO EMPLOYEES OF THE NAVAL AIR STATION,
FALLON, AS THE EMPLOYER URGED, OR EITHER MERELY REFER TO THE "UNIT" OR
TO EMPLOYEES "SERVICED BY THE PERSONNEL OFFICE" AT NAVAL AIR STATION,
FALLON. MANAGEMENT STATED THE REFERENCE TO "UNIT" WAS TOO VAGUE AND THE
REFERENCE TO THE "PERSONNEL OFFICE" WAS UNACCEPTABLE BECAUSE SOME
EMPLOYEES NOT IN THE UNIT WERE SERVICED BY THE PERSONNEL OFFICE. THIS
ARTICLE WAS THEN SET ASIDE.
MANAGEMENT RIGHTS AND RESPONSIBILITIES, ARTICLE V, WAS THEN DISCUSSED
AND AGREEMENT WAS TENTATIVELY REACHED ON SOME SECTIONS. THE PARTIES
AGREED TO CERTAIN CHANGES, ADDITIONS AND DELETIONS IN THE VARIOUS
SECTIONS. WHILE DISCUSSING ONE SECTION OF THIS ARTICLE THE ACTIVITY
ASKED PRECISELY WHETHER THE WORDS "THEIR RIGHTS" REFERRED TO EMPLOYEE OR
EMPLOYER RIGHTS. THE UNION ADVISED IT MEANT "MANAGEMENT'S RIGHTS". AT
FIRST MANAGEMENT SUGGESTED CHANGING THE LANGUAGE FROM "THEIR RIGHTS" TO
"ITS RIGHTS" AND THEN SUGGESTED CHANGING "ITS RIGHTS" TO "MANAGEMENT'S
RIGHTS", THE UNION THEN PROPOSED SETTING THE ENTIRE ARTICLE V ASIDE.
THE PARTIES THEN AGAIN DISCUSSED ARTICLE VII WHEREIN THE ACTIVITY
RENEWED ITS PROPOSAL TO INSERT THE WORD "LEGAL" BEFORE THOSE UNION
ACTIVITIES WHICH WERE PROTECTED. THE UNION REFUSED TO AGREE AND THE
ACTIVITY SUGGESTED THAT IN LIEU OF THE WORD "LEGAL", ADDING THE WORD
"AUTHORIZED" BEFORE UNION ACTIVITIES.
THE PARTIES CONTINUED TO DISCUSS PROPOSED ARTICLES THAT HAD BEEN
BROUGHT UP AT PREVIOUS MEETINGS. THE PARTIES THEN DISCUSSED THE NEW
BUSINESS. THE FIRST NEW ARTICLE BROUGHT UP WAS ARTICLE 24, SECURITY, TO
WHICH THE ACTIVITY IMMEDIATELY AGREED. THE PARTIES THEN DISCUSSED THE
ADDITIONAL ARTICLES ON THE AGENDA BUT NO NEW AGREEMENTS WERE REACHED.
MANAGEMENT WANTED TO CONTINUE DISCUSSIONS BUT THE UNION TERMINATED THE
MEETING AT 2:10 P.M. BECAUSE IT FELT NO MORE MEANINGFUL DISCUSSIONS
COULD TAKE PLACE. MANAGEMENT SUBMITTED ITS PROPOSED AGENDA FOR THE NEXT
MEETING. THE UNION REFUSED TO AGREE TO THE PROPOSED AGENDA EVEN THOUGH
IT WAS THE ACTIVITY'S TURN TO PROPOSE THE AGENDA, BECAUSE THE NUMBERING
SYSTEM OF THE ARTICLES APPARENTLY REFERRED TO MANAGEMENT'S PROPOSED
NUMBERING SYSTEM AND NOT THE NUMBERING SYSTEM OF THE BASIC AGREEMENT.
THE UNION SAID MANAGEMENT MUST FOLLOW THE NUMBERING SYSTEM OF THE BASIC
AGREEMENT, OTHERWISE IT WOULD CREATE CONFUSION. THE UNION THEN LEFT.
(G) JUNE 19 MEETING.
THIS MEETING STARTED AT 8:03 A.M. WITH THE UNION AGAIN REFUSING TO
ACCEPT THE ACTIVITY'S PROPOSED AGENDA, INSISTING THAT THE AGENDA MUST
FOLLOW THE ARTICLES IN THE BASIC AGREEMENT. THE UNION AND THE ACTIVITY
COULD NOT AGREE ON AN AGENDA AND THE UNION, DESPITE ACTIVITY'S
STATEMENTS THAT IT WISHED TO STAY AND NEGOTIATE, LEFT THE MEETING AT
8:10 A.M. AT THIS STAGE, WHEN NEGOTIATIONS BROKE OFF, THE PARTIES HAD
SIGNED OFF OR TENTATIVELY AGREED TO A "PREAMBLE" AND EIGHT ARTICLES OF
THE NEW CONTRACT.
III. LABOR-MANAGEMENT MEETING OF APRIL 26, 1973
THE ACTIVITY AND THE UNION HAD MONTHLY LABOR-MANAGEMENT MEETINGS AND
ON APRIL 26, 1973, SUCH A MEETING WAS HELD. PRESENT AT THIS MEETING
WERE, INTER ALIA, COMMANDER GLADE, THE ACTIVITY'S EXECUTIVE OFFICER, AND
MS. SANDERS, WHO WAS AT THAT TIME THE UNION PRESIDENT. THE MINUTES OF
THE MEETING, AS RECORDED BY THE ACTIVITY, CONSISTED OF SIX PAGES AND
ELEVEN NUMBERED ITEMS. ALL PARTIES AGREED THAT THESE MINUTES ACCURATELY
REFLECT WHAT OCCURRED AT THE MEETING.
ITEM 7 OF THE MINUTES STATES:
"THE EXECUTIVE OFFICER MADE A PERSONAL OBSERVATION AS TO WHAT HE
THINKS HAS TRANSPIRED
BETWEEN MANAGEMENT AND THE UNION SINCE HE ARRIVED AT NAS FALLON,
ABOUT EIGHT MONTHS AGO. HE
SAID HE FELT THAT LABOR RELATIONS ALONG WITH MANAGEMENT RELATIONS
HAVE BEEN STRAINED, AND THAT
PERSONALITIES ARE ENTERING INTO NEGOTIATIONS TO THE POINT THAT
NOTHING IS BEING
ACCOMPLISHED. IT'S MANAGEMENT'S VIEW THAT MANAGEMENT IS HERE TO
SERVE ALL THE EMPLOYEES OF
THE STATION, AND THAT THE UNION SHOULD FEEL THAT THEY ARE ALSO
REPRESENTING NOT ONLY THE
MEMBERS OF THE UNION BUT ALL THE EMPLOYEES OF THE STATION. HE SAID
HE THOUGHT IT IMPORTANT TO
THE UNION THAT THEY HAVE A CONTRACT AND THAT A CONTRACT WOULD BE A
MOTIVATING FACTOR. IT
PROTECTS THE RIGHTS OF THE EMPLOYEES AND GETS RELATIONSHIPS MUCH MORE
ON AN EVEN KEEL FOR ALL
CONCERNED. HE SAID THERE HAVE BEEN TWO UNFAIR LABOR PRACTICES
AGAINST MANAGEMENT THIS PAST
YEAR. THE COMMAND RECEIVED A CALL FROM MR. BLACK, WHO IS IN CHARGE
OF OCMM, WASHINGTON. HIS
LAWYERS HAVE REVIEWED THE UNFAIR LABOR PRACTICES AND IN HIS OPINION
THERE IS NO SUBSTANCE TO
THE CHARGES THAT HAVE BEEN SUBMITTED. THE EXECUTIVE OFFICER POINTED
OUT THAT A VAST AMOUNT OF
EXPENSE OF TAXPAYERS MONEY AND TIME GOES INTO UNFAIR LABOR PRACTICE,
BUT THAT IT IS CERTAINLY
THE RIGHT OF THE EMPLOYEES AND THE MEMBERS OF THE UNION TO SUBMIT
SUCH CHARGES, WHEN IN
ORDER. HOWEVER, WHEN THE CHARGES DO NOT HAVE SUBSTANCE THEY ARE NOT
CONDUCIVE TO GOOD WORKING
RELATIONSHIP. HE SAID CAPTAIN MUNCIE HAS BEEN GIVEN AN EXTENSION
HERE AT NAS FALLON FOR AN
ADDITIONAL YEAR AS COMMANDING OFFICER. THE EXECUTIVE OFFICER SAID HE
PERSONALLY FELT THAT NOT
MUCH HEADWAY HAS BEEN MADE IN UNION/MANAGEMENT AFFAIRS AND THAT
PERHAPS A CHANGE IN ATTITUDE
AND CHANGE IN PERSONALITY MIGHT BE IN ORDER. HE SAID FROM HIS
PERSONAL STANDPOINT, HE WOULD
LIKE TO SUGGEST THE UNION LOOK VERY SERIOUSLY TO A CHANGE IN THEIR
LEADERSHIP, WHEREBY PERSONS
IN HEAD OFFICES SUCH AS UNION CHIEF NEGOTIATOR AND MANAGEMENT'S
NEGOTIATOR COULD WORK MORE
HARMONIOUSLY WITH ONE ANOTHER. HE SAID IF THE UNION SO DESIRES, HE
WOULD BE WILLING TO SUBMIT
HIS RESIGNATION AS MANAGEMENT'S CHIEF NEGOTIATOR IF THEY FELT THAT
HIS PERSONALITY WAS NOT
CONDUCIVE TO GOOD RELATIONSHIP. HE SAID HE WOULD LIKE THE UNION TO
TAKE THIS MATTER TO THEIR
MEMBERSHIP AND GO OVER THEIR ACHIEVEMENTS DURING THE PAST YEAR AND
SEE WHAT THEY HAVE
ACHIEVED, AND TO SEE IF HIS SUGGESTIONS MIGHT NOT BE IN ORDER. HE
EXTENDED AN OFFER TO MEET
PRIVATELY OR IN OPEN SESSION WITH ANY OF THE UNION TO SUGGEST
ALTERNATIVES TO GET THE
NEGOTIATIONS BACK TO THE TABLE AND TO ATTEMPT TO GET A CONTRACT
SETTLED. HE SAID THE UNION
HAS ALREADY EXHAUSTED APPROXIMATELY ONE-HALF OF THEIR CLOCK TIME FOR
NEGOTIATIONS AND VERY
LITTLE HAS BEEN SETTLED THUS FAR. HE SAID THERE WILL NOT BE AN
EXTENSION OF ON THE CLOCK TIME
AND WHEN NEGOTIATIONS DO RESUME EVERY EFFORT MUST BE MADE TO UTILIZE
THE REMAINING TIME IN
RESPONSIBLE FASHION."
ITEM 9 OF THE MINUTES STATES, IN PART:
" . . . MS. SANDERS SAID FROM THE CONVERSATION, IT APPEARS THE
STATION INSTRUCTION 12300.1
IS NOT BEING FOLLOWED WHEN DETAILS ARE MADE. WHEN ASKED IF SHE HAD
ANY SPECIFICS, SHE REPLIED
THAT THE UNION WILL NOT BRING UP ANY SPECIFIC EXAMPLES BECAUSE THE
DETAILING PROCEDURES ARE OF
INTEREST TO ALL EMPLOYEES, AND THE UNION DOES NOT WANT TO JEOPARDIZE
ANY EMPLOYEE. SHE SAID
ANY EMPLOYEE WHO IS DETAILED FOR 30 DAYS OR LESS MUST BE ADVISED OF
THE REASON, THE DUTIES OF
THE JOB AND PROBABLE DURATION. IF OVER 30 DAYS THE DETAIL MUST BE
DOCUMENTED AND IRO AND THE
EMPLOYEE ARE TO HAVE A COPY. MR. MOON EXPLAINED THAT THE SUPERVISORS
SHOULD REQUEST
DOCUMENTATION OF A DETAIL. THIS IS DONE ON STANDARD FORM 52. HE
SAID THE ONLY PURPOSE OF
DOCUMENTING A DETAIL IS TO DOCUMENT EXPERIENCE WHICH IS NOT IN THE
MAN'S NORMAL
POSITION. JUST BECAUSE A MAN IS MOVED FROM ONE PLACE TO ANOTHER IS
NOT AN INDICATION THAT HE
IS BEING DETAILED, PROVIDING HE IS DOING THE WORK OF HIS POSITION."
A COPY OF THESE MINUTES WAS SENT TO THE UNION. THE UNION SUBMITTED
NO EVIDENCE THAT IT IN ANY WAY OBJECTED TO THE ACCURACY OF THESE MINUTES
AND COMMANDER GLADE DID NOT RECALL RECEIVING ANY SUCH OBJECTIONS.
SUBSEQUENTLY THE MINUTES WERE POSTED ON BULLETIN BOARDS WHERE EMPLOYEES
COULD READ THEM.
THE RECORD ESTABLISHES THAT THE CONTRACT THAT HAD EXPIRED PROVIDED,
AND THE PAST PRACTICES HAD BEEN, FOR SUCH MINUTES TO BE POSTED. THE
ACTIVITY, BECAUSE THE UNION SO REQUESTED, WOULD FORWARD THE MINUTES TO
THE UNION FOR ITS COMMENTS AND OBJECTIONS AS TO THE ACCURACY OF THE
MINUTES. IF THE ACTIVITY AGREED WITH THE COMMENTS AND OBJECTIONS THE
MINUTES WOULD BE CHANGED AND POSTED; /11/ IF THE ACTIVITY DISAGREED AND
FELT THAN ITS MINUTES WERE ACCURATE, IT WOULD POST THEM DESPITE THE
UNION'S OBJECTIONS. THE UNION, IN THE MONTHLY MEETINGS, PROTESTED THIS
PROCEDURE OF POSTING SUCH MINUTES WHEN THE UNION HAD OBJECTIONS TO THE
ACCURACY OF THE MINUTES. /12/ THE CONTRACT PROPOSED BY THE UNION DID
NOT PROVIDE FOR ANY CHANGE IN THE LANGUAGE CONCERNING THE PROCEDURE FOR
POSTING MINUTES.
IV. JANUARY 16 LETTER
MS. SANDERS, PRESIDENT OF THE UNION, STATES THAT AT THE MONTHLY
LABOR-MANAGEMENT MEETING WHICH WAS HELD ON JANUARY 11, 1973, SHE WAS
HANDED A LETTER FROM CAPTAIN MUNCIE WHICH DISCUSSED NEGOTIATIONS, ETC.,
AND STATED THAT IF SHE WAS INTERESTED IN SOLVING THE "NEGOTIATING
PROBLEM OR THE UNFAIR LABOR CHARGE . . ." SHE COULD CONTRACT COMMANDER
GLADE. THE NEXT MORNING SHE CALLED COMMANDER GLADE AND MADE AN
APPOINTMENT TO MEET HIM LATER THAT MORNING.
MS. SANDERS TESTIFIED THAT THEY DISCUSSED THE LABOR-MANAGEMENT
MEETING OF THE DAY BEFORE; COMMANDER GLADE'S TRIP TO WASHINGTON WHERE
HE WAS ADVISED THAT THE PARTS OF THE CONTRACT WERE UNACCEPTABLE; AND
THE FIELD OF LABOR-MANAGEMENT RELATIONS GENERALLY. SHE DENIED THAT
THERE WAS ANY DISCUSSION OF THE PENDING UNFAIR LABOR PRACTICE CHARGE OR
THAT SHE OFFERED TO WITHDRAW THE CHARGE.
COMMANDER GLADE TESTIFIED THAT DURING THE MEETING IN QUESTION MS.
SANDERS STATED THAT CAPTAIN MUNCIE WAS IN DEEP TROUBLE AND THAT THE
UNION HAD ENOUGH EVIDENCE TO GET HIM RELIEVED OF COMMAND. SHE ASKED IF
CAPTAIN MUNCIE WOULD AGREE TO EXTENDING THE 40 HOURS FOR NEGOTIATING THE
CONTRACT, NOTING THAT 20 HOURS HAD ALREADY BEEN USED. SHE ALSO STATED
THAT CAPTAIN MUNCIE SHOULD SIGN THE UNION CONTRACT PROPOSALS AND SOME
NEW UPDATED PROPOSALS THAT HAD NOT YET BEEN SUBMITTED OR ELSE SHE WOULD
HAVE HIM RELIEVED OF DUTY AS COMMANDING OFFICER. SHE STATED THAT IF THE
ACTIVITY COMPLIED SHE WOULD WITHDRAW THE UNFAIR LABOR PRACTICE CHARGE.
WITH RESPECT TO THIS MEETING, I CREDIT COMMANDER GLADE'S VERSION
RATHER THAN MS. SANDERS'. SHE DENIED THAT SHE EVEN MENTIONED THE UNFAIR
LABOR PRACTICE CHARGE YET SHE ALSO TESTIFIED THAT ONE OF THE PURPOSES
SHE CALLED AND SET UP THE MEETING WITH COMMANDER GLADE WAS TO DISCUSS
RESOLVING THE UNFAIR LABOR PRACTICE COMPLAINT. FURTHER HER VERSION OF
THE MEETING ALMOST TOTALLY OMITTED ANY MENTION OF THE CONTRACT
NEGOTIATIONS WHEREAS RESOLVING THE PROBLEMS INVOLVING NEGOTIATIONS WAS
ONE OF THE MAIN REASONS FOR THE MEETING. COMMANDER GLADE'S VERSION IS
MUCH MORE PROBABLE AND CONSISTENT WITH SURROUNDING CIRCUMSTANCES AND IS
THEREFORE CREDITED.
ON THAT DAY OR THE NEXT, COMMANDER GLADE BRIEFED CAPTAIN MUNCIE ON
THE MEETING AND AS A RESULT A LETTER WAS DRAFTED AND SENT TO MS. SANDERS
CONCERNING THIS MEETING. I FIND THIS LETTER ACCURATELY REFLECTS WHAT
OCCURRED AT THE MEETING. THIS LETTER IS ATTACHED HERETO AND MADE A PART
HEREOF AS "APPENDIX A".
WHEN THIS LETTER WAS SENT TO MS. SANDERS IT WAS ALSO SIMULTANEOUSLY
POSTED ON THE ACTIVITY'S BULLETIN BOARDS. ALTHOUGH IT WAS NOT ACTIVITY
POLICY, ONE SUPERVISOR, MR. W. D. DELANEY, POSTED THE LETTER WITH THE
NOTATION ON THE TOP.
"CIVIL SERVICE PERSONNEL-READ AND INITIAL", FOLLOWED BY A SERIES OF
INITIALS. MR. DELANEY TESTIFIED THAT HE FOLLOWED THIS PROCEDURE
WHENEVER HE POSTED NOTICES BECAUSE HE HAD MEN WHO WORKED ON A NUMBER OF
SHIFTS AND SOME OF WHOM HE OFTEN DIDN'T SEE. THIS PERMITTED HIM TO BE
SURE THAT EVERYONE HAD READ THE POSTED NOTICE BEFORE HE TOOK IT DOWN.
HE NOTED THAT ONE EMPLOYEE REFUSED TO INITIAL THE LETTER IN QUESTION AND
ADVISED MR. DELANEY HE DIDN'T WISH TO INITIAL IT. MR. DELANEY REPLIED,
"WELL, FINE. AT LEAST YOU SAW IT ANYWAY."
I. PRELIMINARY MATTERS
THE ACTIVITY CONTENDS THAT THE UNFAIR LABOR PRACTICE CHARGE AND
COMPLAINT IN CASE NO. 70-2477 WAS NOT SUFFICIENTLY PRECISE TO MEET THE
REQUIREMENTS OF THE ORDER AND RULES AND REGULATIONS SEC. 203.2. BOTH
THE LETTER OF OCTOBER 24, 1972 (THE CHARGE) AND THE ORIGINAL COMPLAINT
DATED JANUARY 3, 1973, ADVISED THE RESPONDENT THAT THE ACTIVITY WAS
ALLEGED TO HAVE FAILED TO BARGAIN IN GOOD FAITH DURING THE NEGOTIATIONS
OF JUNE 1972 AND TO HAVE THEREBY VIOLATED SECTION 19(A)(6) OF THE ORDER.
AN AMENDED COMPLAINT WAS FILED JANUARY 16, 1973, WHICH WAS MUCH MORE
SPECIFIC THAN THE PRIOR TWO DOCUMENTS. NEVERTHELESS, IT IS CONCLUDED
THAT THE ORIGINAL CHARGE AND COMPLAINT WERE SUFFICIENTLY SPECIFIC TO
ADVISE RESPONDENT, IN COMPLIANCE WITH THE ORDER AND REGULATIONS, THAT
ITS CONDUCT DURING THE NEGOTIATION MEETINGS CONSTITUTED VIOLATIONS OF
SECTION 19(A)(6) OF THE ORDER.
II. THE NEGOTIATIONS
(A) THE MEETINGS
THE RECORD ESTABLISHES THAT ON JUNE 5, 7, 9, 14, AND 16, 1972, THE
PARTIES HAD FAIRLY LENGTHLY NEGOTIATION MEETINGS. /13/ DURING THESE
MEETINGS THE ACTIVITY'S REPRESENTATIVES PRESENTED THE ACTIVITY'S
PROPOSAL, EXPLAINED THE REASONS FOR THEM AND LISTENED TO AND CONSIDERED
THE UNION'S PROPOSALS AND THE REASONS GIVEN IN THEIR SUPPORT. THE
PARTIES MADE REASONABLE PROGRESS, MADE COMPRISES AND REACHED AGREEMENTS
DURING THE FIRST TWO OR THREE NEGOTIATION MEETINGS. THE RECORD DOES NOT
ESTABLISH THAT THE ACTIVITY WAS EITHER STALLING NEGOTIATIONS OR WAS
BARGAINING WITH A CLOSED MIND. QUITE THE CONTRARY IT SEEMED EAGER TO
KEEP NEGOTIATIONS MOVING AND ALTHOUGH IT MAY HAVE BEEN ENGAGING IN "HARD
BARGAINING" AND MAY HAVE BEEN STRONGLY URGING AND INSISTING UPON MANY OF
ITS PROPOSALS, THE ACTIVITY WAS QUITE READY TO CONSIDER UNION PROPOSALS
AND TO EXPLAIN ITS POSITIONS. THE ACTIVITY'S POSITIONS WITH RESPECT TO
THE VARIOUS PROPOSALS AND THE SPECIFIC LANGUAGE DIFFERENCES IT HAD WITH
THE UNION WERE QUITE REASONABLE AND WERE NOT FRIVOLOUS. SIMILARLY IT
WAS NOT UNREASONABLE IN DESIRING THAT ITS PROPOSED NUMBERING SYSTEM BE
FOLLOWED OR IN ITS WISHING TO FURTHER DISCUSSING PROPOSED ARTICLES THAT
HAD NOT BEEN AGREED UPON DURING EARLIER MEETINGS. /14/
IN THIS REGARD THE UNION REPRESENTATIVES, AT LEAST COMMENCING WITH
THE JUNE 14 MEETING, SEEMED TO HAVE A MISCONCEPTION OF THE ACTIVITY'S
BARGAINING OBLIGATIONS. /15/ THE ACTIVITY IS NOT REQUIRED TO AGREE ON
THE UNION'S PROPOSALS /16/ OR TO MAKE CONCESSION, C.F. DEPARTMENT OF
THE ARMY DIRECTORATE, UNITED STATES DEPENDANT SCHOOLS, EUROPEAN AREA,
A/SLMR NO. 138. RATHER IT NEED ONLY ATTEND THE SESSIONS AND ENTER
NEGOTIATIONS WITH THE INTENT TO REACH AN AGREEMENT WITH THE UNION AND TO
CONSIDER THE UNION'S PROPOSALS. NEITHER "HARD BARGAINING" NOR A FAILURE
TO MAKE CONCESSIONS CONSTITUTES A FAILURE TO FULFILL ITS BARGAINING
OBLIGATION. THE UNION'S OBLIGATION IS THE SAME.
THE RECORD ESTABLISHES THAT THE ACTIVITY WANTED TO MEET AND DISCUSS
AND EXPLORE THE VARIOUS UNION AND ACTIVITY PROPOSALS AND TO TRY TO REACH
AGREEMENT, WHEREAS COMMENCING AT THE JUNE 14 MEETING THE UNION SEEMED
INTENT UPON ASCERTAINING, AS QUICKLY AS POSSIBLE IF THE PARTIES AGREED
TO EACH PARTICULAR ARTICLE, AND IF NOT TO SET THOSE ARTICLES ASIDE,
APPARENTLY IN ORDER TO USE AS LITTLE OF THE UNION NEGOTIATOR'S "ON THE
CLOCK" TIME AS POSSIBLE. THE RECORD, AS A WHOLE, ESTABLISHES THAT
COMMENCING WITH THE JUNE 14 MEETING THE UNION REPRESENTATIVES SEEMED
VERY RELUCTANT TO ENGAGE IN ANY EXTENDED DISCUSSIONS OF THE CONTRACT
PROPOSALS. THE MEETINGS, BECAUSE OF THE UNION'S CONDUCT, BECAME QUITE
BRIEF AND THE DISCUSSIONS ABBREVIATED. THE MEETINGS WAS NOT SUFFICIENT
TO DEMONSTRATE THAT THE ACTIVITY WAS STALLING, REFUSING TO CONSIDER THE
UNION'S PROPOSALS, BARGAINING WITH A CLOSED MIND, OR IN ANY OTHER WAY
FAILING TO FULFILL ITS BARGAINING OBLIGATION. SIMILARLY ALTHOUGH IT MAY
BE DESIRABLE FOR NEGOTIATIONS TO BE CONCLUDED DURING THE UNION'S
REPRESENTATIVE'S ON THE CLOCK TIME, THE ACTIVITY IS NOT REQUIRED BY THE
ORDER TO REACH AGREEMENT DURING THIS PERIOD. THE RECORD DOES NOT
ESTABLISH ANY INTENTIONAL STALLING BY THE ACTIVITY.
(B) COMMANDER DUNTON'S STATEMENT
IN ITS COMPLAINT THE UNION ATTRIBUTES TO COMMANDER DUNTON A NUMBER OF
STATEMENTS DURING NEGOTIATIONS TO THE EFFECT THAT ALL UNION HAD TO DO
WAS SIGN THE ACTIVITY'S PROPOSALS, AND THAT, DURING DISCUSSIONS, CERTAIN
ARTICLES WERE NOT NECESSARY BECAUSE THE ACTIVITY'S REGULATIONS
ADEQUATELY COVERED THE AREAS IN QUESTION. SIMILARLY HE IS ALLEGED TO
HAVE ASKED THE UNION REPRESENTATIVES ON OCCASION IF THEY WERE PROUD OF
WHAT THE UNION HAD DONE.
IN THE CONTEXT OF THE MEETINGS, IT IS CONCLUDED THAT THE STATEMENTS
ATTRIBUTED TO COMMANDER DUNTON WERE ON SOME OCCASIONS MERELY PART OF THE
"HARD BARGAINING" ENGAGED IN BY THE ACTIVITY AND ON OTHERS, MERELY AN
ATTEMPT TO KEEP SOME CONVERSATION GOING. THE COMMENT WITH RESPECT TO
WHETHER THE UNION REPRESENTATIVES WERE PROUD OF WHAT THE UNION HAD DONE
WAS IN CONTEXT OF DISCUSSING THE REASONABLENESS OF THE ACTIVITY'S
POSITION WITH RESPECT TO WHETHER THE WORDS "LEGAL" OR "AUTHORIZED"
SHOULD MODIFY "UNION CONDUCT" WHICH WAS TO BE PROTECTED BY THE CONTRACT.
IN THESE CIRCUMSTANCES IT WAS RELEVANT TO THE DISCUSSION AND THE POINT
THE ACTIVITY WAS TRYING TO MAKE. SIMILARLY THE ACTIVITY'S REQUEST THAT
THE UNION PROVIDE IT WITH A LIST OF UNION MEMBERS WAS MADE DURING A
RATHER CONFUSED DISCUSSION OF THE UNION'S DESIRE TO BE NOTIFIED OF UNIT
EMPLOYEES WHO RETIRE, DIE, ETC. IN THIS CONTEXT NOTING ESPECIALLY THE
ACTIVITY'S EXPLANATION TO THE UNION THAT IT NEEDED THE LIST TO KNOW WHO
THE UNION WISHED TO BE ADVISED ABOUT, THE UNION EITHER REALIZED OR
SHOULD HAVE RECOGNIZED THE CONFUSION AND COULD HAVE EASILY CLARIFIED ITS
UNDERLYING REQUEST. IT IS CLEAR THE ACTIVITY'S REQUEST IN THIS CONTEXT
DID NOT VIOLATE THE ORDER.
THE PROCESS OF NEGOTIATIONS MUST ALLOW THE PARTIES SUFFICIENT LEEWAY
IN THE USE OF LANGUAGE TO PERMIT THEM TO EXPRESS AND EXPLAIN THEIR
PROPOSALS AND POSITIONS. NEGOTIATIONS ARE DESIGNED TO ENCOURAGE A TRUE
EXCHANGE OF IDEAS SO THAT THE PARTIES CAN UNDERSTAND EACH OTHER AND
THEREBY AGREE UPON A MUTUALLY ACCEPTABLE CONTRACT. THIS SOMETIMES MAY
INVOLVE BLUNT TALK AND MAY IRRITATE SENSIBILITIES. ON THE OTHER HAND SO
LONG AS THE LANGUAGE AND STATEMENTS DO NOT INDICATE ANY STALLING OR
OTHER REFUSAL OR RELUCTANCE TO NEGOTIATE OR BARGAINING IN GOOD FAITH AND
DO NOT CONTAIN ANY UNLAWFUL THREATS, COERCION, OR PROMISES OF BENEFITS,
SUCH LANGUAGE AND STATEMENTS MUST BE PERMITTED FOR NEGOTIATIONS TO BE
MEANINGFUL.
(C) CAPTAIN MUNCIE'S STATEMENTS
THE RECORD ESTABLISHES THAT AT THE OUTSET OF THE NEGOTIATIONS CAPTAIN
MUNCIE MADE SOME BRIEF OPENING REMARKS DURING WHICH HE URGED THE PARTIES
TO AGREE UPON A CONTRACT AS QUICKLY AS POSSIBLE. HE STATED THAT SUCH A
CONTRACT SHOULD BE WRITTEN IN CLEAR AND CONCISE LANGUAGE AND SHOULD NOT
CONTAIN A LOT OF UNCLEAR OF IRRELEVANT MATTER. IN THIS CONTEXT HE
STATED THAT THE ACTIVITY'S COUNTER-PROPOSALS WERE WRITTEN "WITHOUT ALL
THAT GARBAGE", AND HE URGED THE UNION TO ACCEPT THESE COUNTER-PROPOSALS.
HE STATED FURTHER: "I WILL NOT ACCEPT ANY CONTRACT THAT HAS ANY
UNNECESSARY AND RIDICULOUS REQUESTS. WE HAVE HAD GOOD CONTRACTS IN THE
PAST AND I WANT THIS ONE TO BE THE SAME. NO GARBAGE."
THESE OPENING REMARKS, TAKEN AS A WHOLE, HARDLY CONSTITUTED EITHER A
FAILURE OF THE ACTIVITY TO LIVE UP TO ITS BARGAINING OBLIGATION NOR DID
IT INTERFER WITH, RESTRAIN OR COERCE EMPLOYEES FROM ENGAGING IN CONDUCT
PROTECTED BY THE ORDER. RATHER IT WAS A FRANK AND HONEST STATEMENT OF
THE ACTIVITY'S AIMS AND HOPES FOR THE BARGAINING SESSIONS. THEY DID NOT
EITHER INDICATE A CLOSED MIND OR AN UNWILLINGNESS TO NEGOTIATE AND
CONSIDER ALL PROPOSALS. IT WAS A PLEA TO KEEP NEGOTIATIONS ON THE TRACK
AND TO KEEP IRRELEVANT MATTERS OUT OF ANY CONTRACT AND TO KEEP THE
CONTRACT CLEAR AND CONCISE. PERHAPS THE USE OF THE WORD "GARBAGE" WAS
SOMEWHAT INDELICATE, BUT UNION NEGOTIATORS AND REPRESENTATIVES AT
NEGOTIATIONS CANNOT BE SO THIN-SKINNED THAT SUCH A WORD WOULD INTERFER
WITH OR RESTRAIN THEM FROM ADEQUATELY AND COMPLETELY REPRESENTING THE
UNION AND PRESENTING ITS POSITIONS.
AT THIS FIRST MEETING, SOMETIME LATER, CAPTAIN MUNCIE RETURNED AND
ADVISED THE UNION THAT HE HAD BEEN ADVISED BY SOME DISGRUNTLED
FIRE-FIGHTERS THAT THEY WISHED TO WITHDRAW FROM THE UNION AND HAVE BEEN
IN CONTRACT WITH ANOTHER LABOR ORGANIZATION. HE FURTHER STATED THAT
"SOME OTHER UNION MAY TAKE OVER AND THEN WE WOULD HAVE TWO UNIONS. SO I
SUGGEST THAT YOU GET THE CONTRACT SIGNED QUICKLY." THE UNION PRODUCED NO
EVIDENCE THAT THESE STATEMENTS WERE NOT TRUE OR WERE, IN ANY WAY,
INACCURATE. NOR WAS THERE ANY EVIDENCE THAT THE ACTIVITY ENCOURAGED THE
FIRE-FIGHTERS' ALLEGED DISPLEASURE OR THREATENED THE UNION WITH ANY
IMPROPER CONDUCT ON THE PART OF THE ACTIVITY. IT IS CONCLUDED THAT THE
FOREGOING STATEMENTS CONCERNING THE FIRE-FIGHTERS, WHICH ADVISED THE
UNION OF CERTAIN FACTS, AND THEN ENCOURAGED THE UNION TO AGREE UPON A
CONTRACT AS QUICKLY AS POSSIBLE IN ORDER TO AVOID CHALLENGE BY AN
OUTSIDE UNION, DO NOT VIOLATE THE ORDER. THEY ARE NEITHER A THREAT BY
THE ACTIVITY TO ENGAGE IN ANY IMPROPER CONDUCT NOR AN ATTEMPT BY THE
ACTIVITY TO AVOID ITS BARGAINING OBLIGATIONS.
FURTHER THESE STATEMENTS BY CAPTAIN MUNCIE DID NOT INCLUDE THREATS OR
PROMISES OF BENEFIT NOR DID IT HOLD THE UNION UP TO RIDICULE SO AS TO
CONSTITUTE A VIOLATION OF THE ORDER. THE ORDER INSURES THAT THE RIGHTS
AND OBLIGATIONS SET FORTH THEREIN WILL BE PROTECTED; IT DOES NOT
PROHIBIT THE ACTIVITY FROM SAYING SOMETHING MERELY BECAUSE THE UNION
MIGHT NOT WISH TO HEAR IT.
IN LIGHT OF THE FOREGOING, IT IS CONCLUDED, WITH RESPECT TO THE
NEGOTIATIONS DURING JUNE OF 1972, THAT THE RECORD FAILS TO ESTABLISH
THAT THE ACTIVITY ENGAGED IN CONDUCT WHICH VIOLATES SECTIONS 19(A)(1)
AND (6) OF THE ORDER.
III. LABOR-MANAGEMENT MEETING OF APRIL 26
THE UNION AND THE ACTIVITY HELD REGULAR MONTHLY MEETINGS DURING WHICH
THEY DISCUSSED VARIOUS LABOR RELATIONS MATTERS. AT THE REGULAR
LABOR-MANAGEMENT MEETING HELD ON APRIL 26, 1973, COMMANDER GLADE STATED
THAT SINCE HE HAD ARRIVED AT THE BASE EIGHT MONTHS BEFORE,
LABOR-MANAGEMENT RELATIONS HAD BEEN STRAINED. HE DISCUSSED THE
DESIRABILITY FOR ALL CONCERNED TO HAVE A CONTRACT. HE ALSO DISCUSSED
THE ACTIVITY'S POSITION THAT THE PENDING UNFAIR LABOR PRACTICE COMPLAINT
WAS WITHOUT MERIT. HE WENT ON AND STATED THAT HE FELT NOT MUCH HEADWAY
WAS MADE IN "UNION/MANAGEMENT AFFAIRS AND THAT PERHAPS A CHANGE IN
ATTITUDE AND CHANGE IN PERSONALITY MIGHT NOT BE IN ORDER." ACCORDING TO
THE MINUTES OF THE MEETING, COMMANDER GLADE STATED, "FROM HIS PERSONAL
STANDPOINT, HE WOULD LIKE TO SUGGEST THAT UNION LOOK VERY SERIOUSLY TO A
CHANGE IN THEIR LEADERSHIP, WHEREBY PERSONS IN HEAD OFFICES SUCH AS
UNION CHIEF NEGOTIATORS AND MANAGEMENT NEGOTIATORS COULD WORK MORE
HARMONIOUSLY WITH ONE ANOTHER. HE SAID IF THE UNION SO DESIRES, HE
WOULD BE WILLING TO SUBMIT HIS RESIGNATION AS MANAGEMENT'S CHIEF
NEGOTIATOR IF THEY FELT THAT HIS PERSONALITY WAS NOT CONDUCIVE TO GOOD
RELATIONSHIP. HE SAID HE WOULD LIKE THE UNION TO TAKE THIS MATTER TO
THEIR MEMBERSHIP AND GO OVER THEIR ACHIEVEMENTS DURING THE PAST YEAR AND
SEE WHAT THEY HAVE ACHIEVED, AND TO SEE IF HIS SUGGESTION MIGHT NOT BE
IN ORDER. HE EXTENDED AN OFFER TO MEET PRIVATELY OR IN OPEN SESSION
WITH ANY OF THE UNION TO SUGGEST ALTERNATIVES TO GET NEGOTIATIONS BACK
TO THE TABLE AND TO ATTEMPT TO GET A CONTRACT SETTLED. HE SAID THE
UNION HAD ALREADY EXHAUSTED APPROXIMATELY ONE-HALF OF THEIR CLOCK TIME
FOR NEGOTIATIONS AND VERY LITTLE HAD BEEN SETTLED THUS FAR. HE SAID
THERE WILL NOT BE ANY EXTENSION OF THEIR CLOCK TIME AND WHEN
NEGOTIATIONS DO RESUME EVERY EFFORT MUST BE MADE TO UTILIZE THE
REMAINING TIME IN A RESPONSIBLE FASHION".
THE STATEMENTS OF COMMANDER GLADE ATTEMPTED TO PROPOSE TO THE UNION
VARIOUS SUGGESTIONS FOR GETTING THE BARGAINING SESSIONS STARTED AGAIN.
HE SUGGESTED THAT PERHAPS THERE WAS A PERSONALITY CLASH. THEREFORE, HE
SUGGESTED THAT THE UNION CONSIDER CHANGING ITS CHIEF NEGOTIATOR. /17/
COMMANDER GLADE, HIMSELF, OFFERED TO RESIGN AS THE ACTIVITY'S CHIEF
NEGOTIATOR, IF THE UNION FELT IT WOULD HELP NEGOTIATIONS. COMMANDER
GLADE DID NOT DEMAND SUCH A CHANGE OF THE UNION'S NEGOTIATORS, RATHER HE
SUGGESTED IT AS A POSSIBLE WAY TO START NEGOTIATIONS MOVING AGAIN.
SIMILARLY HIS OFFER TO MEET PUBLICLY OR PRIVATELY WITH THE UNION /18/ TO
SUGGEST ALTERNATIVES FOR GETTING NEGOTIATIONS STARTED AGAIN WAS A
PROPOSED METHOD FOR EXAMINING OTHER POSSIBLE SOLUTIONS.
IT IS CONCLUDED THAT THESE STATEMENTS AND SUGGESTIONS MADE DURING A
LABOR-MANAGEMENT MEETING, IN ORDER TO EXPLORE WAYS TO GET NEGOTIATIONS
STARTED AGAIN DID NOT INTERFER WITH OR RESTRAIN EMPLOYEES FROM
EXERCISING PROTECTED RIGHTS AND DID NOT CONSTITUTE A FAILURE TO BARGAIN
IN GOOD FAITH. SIMILARLY THE DISCUSSION OF DETAILS OF EMPLOYEES DID NOT
CONSTITUTE A FAILURE TO BARGAIN IN GOOD FAITH.
THE NEXT QUESTION THAT MUST BE EXAMINED IS WHETHER THE POSTING OF
THESE MINUTES OF THE MEETING, ADMITTEDLY ACCURATE MINUTES, CONSTITUTED A
VIOLATION OF THE ORDER. THE UNION CONTENDS THAT THE POSTING OF SUCH
MINUTES WITHOUT ITS CONSENT CONSTITUTES A VIOLATION OF SECTION 19(A)(1)
AND (6) OF THE ORDER.
THE ORDER DOES NOT FORBID THE ACTIVITY FROM COMMUNICATING WITH ITS
EMPLOYEES CONCERNING LABOR-MANAGEMENT RELATIONS. RATHER IT PROTECTS THE
EMPLOYEES RIGHTS TO ENGAGE IN OR REFRAIN FROM ENGAGING IN UNION ACTIVITY
AND FURTHER IT PROTECTS A COLLECTIVE BARGAINING REPRESENTATIVE'S RIGHT
TO REPRESENT THE MEMBERS OF THE COLLECTIVE BARGAINING UNIT. SO LONG AS
THE ACTIVITY'S EXERCISING ITS RIGHT OF COMMUNICATION WITH EMPLOYEES DOES
NOT INTERFER WITH THE PROTECTED RIGHTS, THE ACTIVITY'S COMMUNICATION
DOES NOT VIOLATE THE ORDER. ABSENT AN AGREEMENT TO THE CONTRARY, THE
ACTIVITY NEED NOT SECURE THE UNION'S PERMISSION OR APPROVAL TO
COMMUNICATE WITH ITS EMPLOYEES. /19/
IN THE INSTANT SITUATION THE COMMUNICATION ACCURATELY REFLECTS WHAT
OCCURRED AT A LABOR-MANAGEMENT MEETING AND DOES NOT CONTAIN ANY THREATS
OR PROMISES OF BENEFIT. IT DOES NOT CONSTITUTE AN ATTEMPT BY THE
ACTIVITY TO BYPASS THE UNION AND BARGAIN DIRECTLY WITH THE EMPLOYEES OR
TO IMPROPERLY URGE THE EMPLOYEES TO PUT PRESSURE ON THE UNION TO PURSUE
CERTAIN COURSES OF CONDUCT. RATHER, ALTHOUGH THE DRAWING OF A LINE MAY
IN SOME INSTANCES MAY BE QUITE DIFFICULT, THE ACTIVITY WAS MERELY
REPORTING TO THE EMPLOYEES IT VERSION OF WHAT HAD OCCURRED. /20/
FURTHER THERE WAS NO EVIDENCE SUBMITTED FROM WHICH ANY INFERENCE COULD
BE DRAWN THAT THE STATEMENTS WERE MADE AT THE MEETING FOR THE PURPOSE OF
REPORTING THEM IN THE MINUTES AND THEREBY POSSIBLY UNDERCUTTING THE
UNION.
IT IS CONCLUDED THEREFORE THAT THE POSTING OF THE INSTANT MINUTES DID
NOT VIOLATE SECTIONS 19(A)(1) AND (6) OF THE ORDER.
IV. JANUARY 16 LETTER
DURING THE MEETING OF JANUARY 12, 1973, BETWEEN COMMANDER GLADE AND
MS. SANDERS, MS. SANDERS STATED THAT CAPTAIN MUNCIE "WAS IN DEEP TROUBLE
AS A RESULT OF THE UNFAIR LABOR PRACTICE", AND INDICATED THAT SHE COULD
GET THE CAPTAIN OUT OF THIS SERIOUS TROUBLE BY WITHDRAWING THE "UNFAIR
LABOR CHARGE" IF THE ACTIVITY SIGNED THE UNION'S CONTRACT PROPOSALS AND
AGREED TO EXTEND THE ON THE CLOCK TIME FOR NEGOTIATIONS FOR NEW UNION
PROPOSALS. COMMANDER GLADE CHARACTERIZED THIS PROPOSAL AS "BLACKMAIL",
STATED THE UNFAIR LABOR PRACTICE CHARGE FILED BY THE UNION WAS ONLY A
METHOD TO FORCE THE ACTIVITY TO ACCEPT THE UNION'S PROPOSALS AND STATED
THAT SUCH TACTICS HAD NO PLACE IN LABOR MANAGEMENT RELATIONS.
THE STATEMENTS MADE BY COMMANDER GLADE DID NOT CONSTITUTE ANY
VIOLATION OF THE ORDER, BUT MERELY EXPRESSED THE ACTIVITY'S
INTERPRETATION AND VIEW OF MS. SANDERS OFFER AND STATEMENTS. THE
STATEMENTS OF CAPTAIN GLADE DID NOT INCLUDE ANY IMPROPER THREATS NOR
WERE THEY SO OUTRAGEOUS OR CAPRICIOUS AS TO INTERFER WITH RIGHTS
PROTECTED BY THE ORDER.
IT IS FURTHER CONCLUDED THAT THE POSTING ON BULLETIN BOARDS BY THE
ACTIVITY OF THE JANUARY 16 LETTER FROM CAPTAIN MUNCIE TO MS. SANDERS DID
NOT CONSTITUTE EITHER AN ATTEMPT TO UNLAWFULLY BYPASS THE UNION OR
INTERFERE WITH ANY OTHER PROTECTED RIGHTS. THIS LETTER ACCURATELY
REFLECTS WHAT OCCURRED AT THE MEETING IN QUESTION. AS DISCUSSED ABOVE
THE ACTIVITY CAN COMMUNICATE WITH EMPLOYEES AND REPORT ITS VERSION OF
ANY MEETINGS AS ITS POSITION IN LABOR-MANAGEMENT MATTERS SO LONG AS
THERE ARE NO UNLAWFUL THREATS AND PROMISES OF BENEFIT, AND IT IS NOT AN
ATTEMPT TO BYPASS THE COLLECTIVE BARGAINING REPRESENTATIVES AND BARGAIN
DIRECTLY WITH THE EMPLOYEES, URGING THEM TO PUT PRESSURE IN THE UNION TO
TAKE CERTAIN ACTIONS. THE POSTING OF THIS LETTER DOES NOT APPEAR TO
CONSTITUTE SUCH AN ATTEMPT TO BYPASS THE UNION. THE STATEMENT IN THE
LETTER THAT THE ACTIVITY CONSIDERS THE UNION'S CONDUCT AS VIOLATING THE
ORDER AND THE THREAT BY THE ACTIVITY TO FILE UNFAIR LABOR PRACTICE
CHARGES ARE NOT CONSIDERED THE TYPE OF THREAT THAT WOULD VIOLATE SECTION
19(A)(1) OF THE ORDER. RATHER IT IS AN EXPRESSION OF A LEGAL POSITION
WHICH MAY RESULT IN FOLLOWING A PROCEDURE SPECIFICALLY PROVIDED BY THE
ORDER, I.E., FILING AN UNFAIR LABOR PRACTICE CHARGE. IT WAS NOT A
THREAT TO WITHHOLD BENEFITS OR TO TAKE ANY OTHER DIRECT ACTION RELATED
TO EMPLOYMENT OR COLLECTIVE BARGAINING RIGHTS OTHER THAN TO PURSUE
CERTAIN LEGAL AVENUES. SUCH A STATEMENT INVOLVING POSSIBLE RECOURSE TO
THE PROCEDURES PROVIDED IN THE ORDER COULD NOT POSSIBLY BE FOUND TO
VIOLATE THE ORDER.
ALTHOUGH THE USE OF THE WORD "BLACKMAIL" MAY OFFEND THE UNION, IT IS
NOT SUCH A CHARACTERIZATION AS TO PER SE CONSTITUTE INTERFERENCE WITHIN
THE MEANING OF THE ORDER. IF THE UNION DISAGREES WITH THE ACTIVITY'S
CHARACTERIZATION IT IS FREE TO COMMUNICATE WITH THE EMPLOYEES AND TO
PRESENT ITS POSITIONS. THIS WOULD APPEAR TO BE THE MORE ACCEPTABLE
ROUTE RATHER THAN TO UNDULY LIMIT THE ACTIVITY'S OPPORTUNITY TO
COMMUNICATE WITH EMPLOYEES. THERFORE IT IS CONCLUDED THAT THE
STATEMENTS MADE DURING THE MEETING AND THE POSTING OF THE JANUARY 16
LETTER DO CONSTITUTE VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE
ORDER.
FINALLY, HOWEVER, ALTHOUGH THE ACTIVITY MAY HAVE A RIGHT TO
COMMUNICATE WITH EMPLOYEES, THESE EMPLOYEES HAVE A RIGHT TO JOIN AND
SUPPORT THE UNION OR TO REFRAIN FROM SUCH CONDUCT. THE REQUIREMENT AND
POSTED NOTATION BY ONE SUPERVISOR, ON HIS OWN, BUT FOR WHOM THE ACTIVITY
IS RESPONSIBLE, /21/ THAT EMPLOYEES MUST READ AND INITIAL THE POSTED
LETTER CONSTITUTED AN UNDUE INTERFERENCE WITH THOSE EMPLOYEES' RIGHTS TO
SUPPORT OR REFRAIN FROM SUPPORTING THE UNION. IT WAS MAKING THEM DO
SOMETHING WHICH THEY HAD A RIGHT TO REFRAIN FROM DOING AND THEREFORE
THIS NOTATION AND REQUIREMENT, CONSTITUTED A VIOLATION OF SECTION
19(A)(1) OF THE ORDER.
HAVING FOUND THAT RESPONDENT ACTIVITY, BY REQUIRING EMPLOYEES TO READ
AND INITIAL THE JANUARY 16 LETTER, HAD ENGAGED IN CONDUCT WHICH IS IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER, I RECOMMEND THAT THE
ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER. WITH RESPECT TO ALL
ALLEGED VIOLATIONS OF SECTIONS 19(A)(1) AND ALL ALLEGED VIOLATIONS OF
SECTION 19(A)(6) OF THE ORDER IT IS RECOMMENDED THAT THE COMPLAINTS BE
DISMISSED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE DEPARTMENT OF THE
NAVY, NAVAL AIR STATION, FALLON, NEVADA, SHALL:
(1) CEASE AND DESIST FROM:
(A) REQUIRING EMPLOYEES TO READ AND INITIAL COMMUNICATIONS BETWEEN
THE FALLON NAVAL AIR STATION AND LOCAL 1841, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, WHICH ARE POSTED BY THE ACTIVITY ON BULLETIN
BOARDS;
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
(2) TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT ITS FACILITY AT NAVAL AIR STATION, FALLON, NEVADA, COPIES
OF THE ATTACHED NOTICE MARKED "APPENDIX B" ON FORMS TO BE FURNISHED BY
THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS. UPON
RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER AND SHALL
BE POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(B) PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREIN.
DATED: JULY 10, 1974
WASHINGTON, D.C.
FROM: COMMANDING OFFICER, NAVAL AIR STATION, FALLON, NEVADA
TO: PRESIDENT, AFGE #1841 (MRS. PHYLLIS SANDERS, SPECIAL SERVICES
DIVISION)
SUBJ: CONDUCT OF BUSINESS MANAGEMENT, NAS FALLON AND AFGE UNION NO.
1841
1. IT HAS BEEN BROUGHT TO MY ATTENTION THAT YOU HAVE RECENTLY
INVOLVED YOURSELF IN HIGHLY IRREGULAR TACTICS AND PROCEDURES WHICH, IF
MANAGEMENT SO CHOSE, COULD RESULT IN A VALID COMPLAINT TO THE UNDER
SECRETARY OF LABOR FOR LABOR AND MANAGEMENT RELATIONS. SPECIFICALLY, IT
HAS BEEN RELATED TO ME THAT YOU CALLED THE EXECUTIVE OFFICER ON 12
JANUARY 1973 AND REQUESTED A PRIVATE CONFERENCE TO DISCUSS LABOR AND
MANAGEMENT BUSINESS. AT THIS MEETING YOU WERE QUOTED AS MAKING HIGHLY
SUSPICIOUS STATEMENTS, CONCERNING MANAGEMENT, WHICH PROMPTS ME TO
QUESTION CERTAIN LOYALTIES AND INTEGRITIES MANIFESTED BY YOU IN
EXERCISING THE CALLING OF YOUR OFFICE. DURING THIS SESSION YOU
REPORTEDLY MADE STATEMENT TO THE FACT THAT . . ." THE CAPTAIN (REFERRING
TO THE COMMANDING OFFICER, NAS FALLON) WAS IN DEEP DEEP TROUBLE AS A
RESULT OF THE UNFAIR LABOR PRACTICE WHICH HAS BEEN SUBMITTED BY LOCAL
AFGE 1841". FURTHER, YOU INDICATED THAT AS PRESIDENT OF THE UNION IT
WAS WITHIN YOUR POWER TO GET THE CAPTAIN OUT OF SERIOUS TROUBLE BY
WITHDRAWING THE UNFAIR LABOR CHARGE. YOU AGREED TO TAKE THIS STEP IF
AND WHEN THE COMMAND MET CERTAIN DEMANDS ON THE PART OF THE UNION.
THESE DEMANDS INCLUDED:
A. MANAGEMENT TO SIGN IN TO THE UNION'S CONTRACT PROPOSALS AS
SUBMITTED BY UNION IN JUNE OF 1972; WITHOUT RESERVATION; WITHOUT
COLLECTIVE BARGAINING; WITHOUT FURTHER NEGOTIATIONS.
B. IN ADDITION, MANAGEMENT TO AGREE TO EXTENDING THE ALLOTTED
ON-THE-CLOCK TIME FOR FURTHER NEGOTIATIONS REGARDING PROVISIONS OF THE
ABOVE PROPOSALS WHICH THE UNION FELT WERE OUTMODED SINCE FIRST SUBMITTED
IN JUNE 1972.
2. IN RESPONDING TO THE ABOVE, THE EXECUTIVE OFFICER STATED THAT THE
COMMAND WOULD NOT BE INTIMIDATED BY ANY "BLACKMAIL" TACTICS ON THE PART
OF THE UNION. FURTHER, THAT IN MANAGEMENT'S VIEW THE UNFAIR LABOR
CHARGE, AS SUBMITTED BY UNION, WAS UNFOUNDED AND WAS A DELIBERATE MOVE
TO PRESSURE MANAGEMENT INTO SIGNING THE UNION'S PROPOSALS. IT WAS
EXPLAINED TO YOU AT THIS TIME THAT COLLECTIVE BARGAINING IS A PROCESS OF
BI-LATERAL NEGOTIATIONS AND THAT TACTICS SUCH AS INTIMIDATION, THREATS
AND "BLACKMAIL" HAD NO PLACE IN LABOR-MANAGEMENT RELATIONS. IT WAS ALSO
MADE CLEAR TO YOU THAT AS COMMANDING OFFICER I HAD ALLOWED THE MAXIMUM
POSSIBLE ON-THE-CLOCK TIME FOR NEGOTIATION SESSIONS. THIS MAXIMUM WAS
ESTABLISHED BY EXECUTIVE ORDER 11491, AS AMENDED, AND IN NO WAY CAN
ADDITIONAL TIME BE ALLOWED FOR THIS PURPOSE. FURTHERMORE, 40 HOURS IS
MORE THAN ADEQUATE HAD YOU CHOSEN TO NEGOTIATE IN GOOD FAITH.
DOCKET NO. . . . OFFICIAL EXHIBIT NO. . . .
3. AS A RESULT OF THE ABOVE, YOU ARE ADVISED THAT ANY FURTHER
TACTICS ON YOUR PART TO CONVEY THREATS, INTIMIDATIONS OR OTHERWISE SEEK
TO HAMPER THE COLLECTIVE BARGAINING PROCESS WILL RESULT IN A CHARGE OF
FAILING TO NEGOTIATE IN GOOD FAITH. YOUR ACTIONS ARE CLEARLY
RECOGNIZABLE AS VIOLATIONS UNDER THE EXECUTIVE ORDER 11491, AS AMENDED,
AND IF CONTINUED WILL RESULT IN FORMAL CHARGES.
COPY TO:
BULLETIN BOARDS
WE WILL NOT REQUIRE OUR EMPLOYEES TO READ AND INITIAL COMMUNICATIONS
BETWEEN THE FALLON NAVAL AIR STATION AND LOCAL 1841, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES WHICH ARE POSTED BY THE ACTIVITY ON BULLETIN
BOARDS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFER WITH, RESTRAIN, OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
DATED: . . . BY: (SIGNATURE) . . . (TITLE)
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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
/1/ THE TRANSCRIPT OF THE HEARING HEREIN IS CORRECTED SO THAT ON PAGE
42, LINE 17, THE WORD "INCLUDING" IS DELETED AND THE WORD "EXCLUDING" IS
SUBSTITUTED FOR IT.
/2/ THIS AGREEMENT FOLLOWED ANOTHER TWO-YEAR AGREEMENT WHICH HAD
BECOME EFFECTIVE APRIL 23, 1968.
/3/ THE UNION CONTENDS THAT GENERALLY MANAGEMENT STALLED IN REACHING
AN AGREEMENT AS TO THESE GROUND RULES. THE ACTIVITY DENIES THIS, WHILE
ADMITTING IT ENCOURAGED THE UNION TO SUBMIT ITS CONTRACT PROPOSALS EARLY
AND TO ATTEMPT TO REACH AGREEMENT ON A CONTRACT THROUGH INFORMAL
NEGOTIATIONS, AND ALLEGES THAT AFTER IT AGREED TO MEET CONCERNING GROUND
RULES, THE UNION DID NOT PROMPTLY SUBMIT ITS PROPOSED GROUND RULES. NO
SPECIFIC EVIDENCE, OTHER THAN THE GENERAL ALLEGATION OF STALLING WAS
PRODUCED BY THE UNION. NO FINDING NEED BE MADE, HOWEVER, SINCE THERE
WAS NO ALLEGATION THAT THERE WAS ANY VIOLATION THE ORDER CONCERNING THE
NEGOTIATION OF THE GROUND RULES.
/4/ THE RECORD ESTABLISHES THAT THESE MINUTES WERE NOT A COMPLETE AND
VERBATIM RECORD OF WHAT OCCURRED AND TOOK STATEMENTS OF CONTEXT AND WERE
INCOMPLETE; THE RECORD FURTHER ESTABLISHES, HOWEVER, THAT INSOFAR AS
THEY WENT ALTHOUGH THEY TENDED TO FORESHORTENED AND ABBREVIATE WHAT WAS
SAID, THEY REASONABLY ACCURATELY QUOTED OR REPORTED PARTICULAR
STATEMENTS.
/5/ IT IS FOUND THAT AS THE VARIOUS INDIVIDUAL ARTICLES WERE RAISED,
COMMANDER DUNTON URGED THE UNION TO SIGN THE ACTIVITY'S PROPOSALS.
/6/ MS. SANDERS SEEMED TO INDICATE THAT THE UNION'S NEGOTIATORS WERE
INTIMIDATED BY THE ACTIVITY'S REPRESENTATIVE SITTING THERE IN A "BIG
UNIFORM", WITH ALL THE MEDALS."
/7/ THERE SEEMED TO BE SOME CONFLICT BETWEEN UNION CHIEF NEGOTIATOR
GREENLEAF AND MS. SANDERS, A UNION REPRESENTATIVE ON THE NEGOTIATING
TEAM, AS TO WHETHER THE UNION SHOULD HAVE AGREED TO THE PREAMBLE AS
MODIFIED.
/8/ FOR EXAMPLE, THE UNION AGREED TO CHANGE CERTAIN LANGUAGE IN EQUAL
EMPLOYMENT OPPORTUNITY ARTICLE FROM "PROHIBITING" DISCRIMINATION TO
"COMBATTING" IT. SIMILARLY LANGUAGE CHANGES AND MODIFICATIONS WERE MADE
AND AGREED TO BY BOTH PARTIES WITH RESPECT TO OTHER ARTICLES.
/9/ FOR EXAMPLE, WITH RESPECT TO ARTICLE I THE UNION WANTED THE
CONTRACT COVERAGE TO REFER ONLY TO THE EMPLOYEES IN THE "UNIT" WHEREAS
THE ACTIVITY WANTED IT TO BE MORE SPECIFIC, TO AVOID CONFUSION, AND
WANTED IT TO REFER TO EMPLOYEES OF NAVAL AIR STATION, FALLON.
/10/ DESPITE THE CONFUSION AS TO AT WHICH MEETING THESE STATEMENTS
WERE MADE, THE VERSIONS ARE NOT SUBSTANTIALLY DIFFERENT. BECAUSE OF THE
MINUTES AND THE OTHER TESTIMONY, I FIND THESE STATEMENTS WERE MADE AT
THE JUNE 5 MEETING.
/11/ MS. SANDERS TESTIFIED THAT NO CHANGES WERE EVER MADE AT THE
REQUEST OF THE UNION. SHE HAD BEEN UNION PRESIDENT SINCE NOVEMBER 1972.
/12/ THESE PROTESTS WERE APPARENTLY FIRST RAISED BY THE UNION DURING
THE JANUARY 1973 LABOR-MANAGEMENT MEETING.
/13/ THE JUNE 9 MEETING WAS THE SHORTEST AND LASTED ABOUT TWO HOURS.
THE MEETING HELD ON JUNE 19 LASTED LESS THAN 10 MINUTES.
/14/ THE ACTIVITY'S POSITION THAT PROPOSED ARTICLES THAT HAD BEEN
DISCUSSED BUT NOT AGREED TO WAS "UNFINISHED BUSINESS" UNDER THE GROUND
RULES, AND THEREFORE THE FIRST ITEM THAT SHOULD BE DISCUSSED DURING
MEETINGS WAS NOT UNREASONABLE OR CLEARLY ERRONEOUS.
/15/ MS. SANDERS TESTIFIED:
"FOR INSTANCE, MANAGEMENT OFTENS REFERS TO THEIR STATION
INSTRUCTIONS. THEY HAVE A RIGHT TO WRITE THEIR STATION INSTRUCTIONS AS
THEY SEE BEST FOR MANAGEMENT.
"THEY CAN SUBMIT THOSE STATION INSTRUCTIONS TO THE UNION AND DISCUSS
THEM AND THE UNION CAN POINT OUT THAT THEY DO NOT FOLLOW CERTAIN RULES
AND REGULATIONS, OR IF THEY ARE IN VIOLATIONS OF, SAY, THE EXECUTIVE
ORDER OR ANYTHING ELSE, THEN, IF MANAGEMENT WAS NEGOTIATING THEM
MANAGEMENT WOULD CHANGE OR DELETE OR RE-WRITE THOSE CRITICAL PASSAGES.
"THEY SUBMIT A CONTRACT TO THE MANAGEMENT AND ITS MANAGEMENT DUTY,
THEN, TO ACCEPT WHAT IS GOOD IN THE CONTRACT AND ONLY TO FAULT WHAT IS
AGAINST THE RULES AND THE REGULATIONS, AND THE EXECUTIVE ORDER, AND SUCH
AS THIS.
". . . IT WOULD HAVE TO BE VIOLATING SOMETHING TO BE WORTHY OF AN
OBJECTION."
MS. SANDERS FURTHER TESTIFIED THAT THE UNION REPRESENTATIVES WERE
INTIMIDATED BY THE FACT THAT THE ACTIVITY REPRESENTATIVES WERE OFFICERS
IN UNIFORMS WITH MEDALS.
/16/ NEITHER NEED IT CONSENT TO THE UNION'S NUMBERING SYSTEM.
/17/ ALTHOUGH HE MIGHT HAVE REFERRED TO CHANGING THE UNION'S
"LEADERSHIP", IT IS QUITE CLEAR FROM THE CONTEXT OF THE DISCUSSION AND
THE SUBSEQUENT LANGUAGE USED, THAT THE COMMANDER GLADE WAS REFERRING TO
THE UNION'S BARGAINING REPRESENTATIVES.
/18/ HERE AGAIN IN THE CONTEXT OF THE DISCUSSIONS AND AS TESTIFIED TO
BY COMMANDER GLADE THIS WAS AN OFFER TO MEET WITH ANY UNION
REPRESENTATIVE, NOT UNION MEMBER, TO DISCUSS THE ALTERNATIVES. THE
STATEMENT TO MEET "PUBLICLY" OR "PRIVATELY" REFERRED TO EITHER PUBLIC
MEETINGS, IN A CONFERENCE ROOM AND WITH MINUTES, OR TO PRIVATE MEETINGS
IN HIS OFFICE WITH NO MINUTES..
/19/ THIS IS ESPECIALLY SO WHERE SUCH POSTING OF MINUTES HAD BEEN A
PAST PRACTICE WHICH THE UNION HAD APPROVED.
/20/ IT IS UNNECESSARY TO DECIDE WHETHER THE ORDER WOULD BE VIOLATED
IF THE MINUTES HAD BEEN INACCURATE OR WHETHER THE UNION'S ABILITY TO
COMMUNICATE WITH EMPLOYEES WOULD NEUTRALIZE ANY SUCH VIOLATION.
/21/ IT IS NOTED THAT THIS WAS NOT AN OFFICIAL POLICY OF THE
ACTIVITY.
4 A/SLMR 431; P. 586; CASE NO. 21-3976(CO); SEPTEMBER 30, 1974.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2028
(VETERANS ADMINISTRATION HOSPITAL,
PITTSBURGH, PENNSYLVANIA)
A/SLMR NO. 431
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY ARTHUR
WILLIAMS (COMPLAINANT) AGAINST THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2028, (RESPONDENT). THE COMPLAINT ALLEGED THAT THE
RESPONDENT REFUSED TO PROCESS A GRIEVANCE FILED BY THE COMPLAINANT
BEYOND THE SECOND STEP OF THE NEGOTIATED GRIEVANCE PROCEDURE CONTAINED
IN THE NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY AND RESPONDENT BECAUSE
OF THE COMPLAINANT'S OPPOSITION TO THE CURRENT LOCAL UNION LEADERSHIP IN
VIOLATION OF SECTION 19(B)(1) OF THE EXECUTIVE ORDER.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE NEWLY ELECTED CHIEF
STEWARD DID NOT REFUSE TO PROCESS THE COMPLAINANT'S GRIEVANCE BUT MERELY
DECLINED TO BE THE LATTER'S REPRESENTATIVE DUE TO THE FACT THAT HE WAS,
AND HAD BEEN, REPRESENTING THE OTHER COMBATANT INVOLVED IN THE
COMPLAINANT'S GRIEVANCE. FURTHER, THE ADMINISTRATIVE LAW JUDGE NOTED
THAT THERE WAS NO EVIDENCE TO INDICATE ANIMUS ON THE PART OF THE NEWLY
ELECTED SLATE OF THE RESPONDENT'S OFFICERS TOWARDS THE COMPLAINANT OR
ANY OTHER FORMER OFFICIAL OF THE RESPONDENT. ACCORDINGLY, HE CONCLUDED
THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE ALLEGATIONS OF THE
COMPLAINT IN THIS MATTER.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS
AND RECOMMENDATION THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2028
(VETERANS ADMINISTRATION HOSPITAL,
PITTSBURGH, PENNSYLVANIA)
AND
ARTHUR WILLIAMS
ON JULY 11, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED
IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS WITH RESPECT
TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS FILED BY THE COMPLAINANT, I HEREBY ADOPT THE FINDINGS, /1/
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 21-3976(CO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ WITH RESPECT TO THE ADOPTION OF THE ADMINISTRATIVE LAW JUDGE'S
CREDIBILITY FINDINGS, SEE NAVY EXCHANGE, U.S. NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND, A/SLMR NO. 180
IN THE MATTER OF
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2028, VETERANS ADMINISTRATION HOSPITAL,
PITTSBURGH, PENNSYLVANIA
AND
ARTHUR WILLIAMS
JOHN W. FORD, ESQUIRE
821 HAWTHORNE DRIVE
PITTSBURGH, PENNSYLVANIA 15235
MR. ISAAC J. SAXON
7718 ALSACE STREET
PITTSBURGH, PENNSYLVANIA 15208
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON DECEMBER 19, 1973,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY ARTHUR WILLIAMS, AN
INDIVIDUAL, AGAINST AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2028, HEREINAFTER CALLED THE UNION, A NOTICE OF HEARING ON COMPLAINT WAS
ISSUED BY THE REGIONAL DIRECTOR FOR THE PHILADELPHIA, PENNSYLVANIA,
REGION ON MARCH 29, 1974.
THE COMPLAINT ALLEGES THAT THE UNION REFUSED TO PROCESS A GRIEVANCE
FILED BY ARTHUR WILLIAMS BEYOND THE SECOND STEP OF THE GRIEVANCE
PROCEDURE BECAUSE OF HIS OPPOSITION TO THE CURRENT LOCAL UNION
LEADERSHIP IN VIOLATION OF SECTION 19(B)(1) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON JUNE 4, 1974, IN
PITTSBURGH, PENNSYLVANIA. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO
BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING CONCLUSIONS AND
RECOMMENDATIONS:
THE UNION AND THE VETERANS ADMINISTRATION HOSPITAL, UNIVERSITY DRIVE,
PITTSBURGH, PENNSYLVANIA, ARE PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT WHICH CONTAINS A FIVE STEP GRIEVANCE PROCEDURE. STEPS ONE AND
TWO OF THE GRIEVANCE PROCEDURE PROVIDE FOR DISCUSSIONS AMONG THE
AFFECTED EMPLOYEE, HIS SELECTED STEWARD AND THE RESPECTIVE
REPRESENTATIVE OF THE MANAGEMENT AGENCY INVOLVED. FAILING SATISFACTORY
RESOLUTION OF THE GRIEVANCE IN STEPS ONE AND TWO, THE EMPLOYEE GRIEVANT
MAY AT HIS OPTION PROCEED TO STEP THREE OF THE GRIEVANCE PROCEDURE.
STEP THREE, WHICH IS THE PROVISION OF THE GRIEVANCE PROCEDURE UNDERLYING
THE INSTANT COMPLAINT, PROVIDES AS FOLLOWS:
STEP 3 - IF NOT SATISFIED WITH THE DECISION IN STEP 2, THE EMPLOYEE
AND THE STEWARD MAY REFER THE COMPLAINT TO THE CHIEF STEWARD. THE CHIEF
STEWARD WILL CONTACT THE DIVISION OR SERVICE CHIEF WITHIN (5) CALENDAR
DAYS FROM THE DATE OF IMMEDIATE SUPERVISOR'S REPLY. AT THIS POINT, THE
EMPLOYEE, THE CHIEF STEWARD, AND THE DIVISION OR SERVICE CHIEF WILL MEET
AS SOON AS POSSIBLE TO ATTEMPT RESOLUTION OF THE MATTER. A DECISION
WILL BE GIVEN IN WRITING BY THE SERVICE OR DIVISION CHIEF WITHIN FIVE
(5) CALENDAR DAYS FOLLOWING THE LAST OF THESE DISCUSSIONS.
DURING THE PERIOD JANUARY - JULY 17, 1973, ACCORDING TO THE ISOLATED
REFERENCES IN THE RECORD ON THE POINT, FOLLOWING A RERUN ELECTION DUE TO
SOME UNSPECIFIED CHARGES AND/OR COMPLAINTS, A NEW SLATE OF UNION
OFFICERS, COMMITTEEMEN AND STEWARDS WAS FINALLY ELECTED. THUS, ON JULY
17, 1973, JAMES K. TYLER AND WALTER TARWACKI, SUCCEEDED ISAAC J. SAXON
AND EDWARD JAMISON, AS PRESIDENT AND CHIEF STEWARD OF LOCAL 2028,
RESPECTIVELY. ARTHUR WILLIAMS, THE COMPLAINANT HEREIN, WAS NOT
REELECTED TO HIS FORMER POSITION OF SERGEANT-AT-ARMS.
ON MAY 6, 1973, COMPLAINANT WILLIAMS AND EMPLOYEE BERNYCE HAMLIN,
BOTH OF WHOM WORKED IN DIETETIC SERVICE, WERE ENGAGED IN SOME SORT OF
PHYSICAL CONTACT WHICH RESULTED, ACCORDING TO AN "ADMONISHMENT"
SUBSEQUENTLY ISSUED BY FOOD SERVICE SUPERVISOR LOWE ON JUNE 25, 1973, IN
EACH OF THE PARTICIPANTS" REQUIRING MEDICAL TREATMENT, FILING REPORTS OF
INJURY, ABSENCE FROM DUTY DUE TO THE CONFRONTATION, . . . "
FOLLOWING RECEIPT OF THE ABOVE-MENTIONED "ADMONISHMENT" DATED JUNE
25, 1973, BERNYCE HAMLIN APPROACHED AND SECURED WALTER TARWACKI AND
MARCELLUS LUCK AS HER PERSONAL REPRESENTATIVES FOR PURPOSES OF FILING A
GRIEVANCE OVER THE "ADMONISHMENT." TARWACKI, WHO AT THE TIME HELD NO
OFFICIAL POSITION IN THE UNION, ALONG WITH LUCK SUBSEQUENTLY PROCESSED A
GRIEVANCE ON BEHALF OF BERNYCE HAMLIN THROUGH THE FIRST AND SECOND STEPS
OF THE GRIEVANCE PROCEDURE. UPON RECEIVING A NEGATIVE RESPONSE FROM
SUPERVISOR LOWE IN THE FIRST AND SECOND STEPS OF THE GRIEVANCE
PROCEDURE, THE GRIEVANCE FOR SOME UNEXPLAINED REASON WAS DROPPED AND
NEVER PURSUED TO THE THIRD STEP OF THE GRIEVANCE PROCEDURE, I.E.
REFERRAL TO THE CHIEF STEWARD.
COMPLAINANT WILLIAMS RECEIVED HIS JUNE 25, 1973, "ADMONISHMENT" BY
CERTIFIED MAIL ON JUNE 28, 1973, WHILE AT HOME ON SICK LEAVE. UPON
RECEIVING THE "ADMONISHMENT", WILLIAMS HELD SEVERAL TELEPHONE
CONVERSATIONS WITH SAXON AND JAMISON, THE THEN PRESIDENT AND CHIEF
STEWARD, RESPECTIVELY, OF THE UNION, WHEREIN HE WAS ADVISED THAT THE
TIME LIMITS IN SECTION 1 OF THE GRIEVANCE PROCEDURE WOULD NOT BEGIN TO
RUN UNTIL SUCH TIME AS HE RETURNED TO WORK AND INITIATED THE GRIEVANCE
PROCEDURE BY FILING A GRIEVANCE. FOLLOWING HIS RETURN TO WORK ON OR
ABOUT JULY 15, 1973, WILLIAMS CONTACTED SHOP STEWARD SISCO RELATIVE TO
HIS GRIEVANCE. THEREAFTER, ON AUGUST 2, 1973, SISCO AND WILLIAMS MET
WITH SUPERVISOR LOWE AND ENTERED INTO THE FIRST STEP OF THE GRIEVANCE
PROCEDURE, I.E., INFORMAL DISCUSSION OF THE SUBJECT MATTER UNDERLYING
THE GRIEVANCE. FOLLOWING A NEGATIVE RESPONSE FROM LOWE TO THEIR REQUEST
THAT THE "ADMONISHMENT" BE REMOVED FROM WILLIAMS' PERSONNEL FILE, THE
GRIEVANCE WAS REDUCED TO WRITING AND SUBMITTED ON AUGUST 12, 1973,
PURSUANT TO STEP 2 OF THE GRIEVANCE PROCEDURE, TO LOWE FOR A WRITTEN
REPLY WITHIN FIVE DAYS. BY MEMORANDUM DATED AUGUST 15, 1973, SUPERVISOR
LOWE REFUSED TO REMOVE THE "ADMONISHMENT" FROM WILLIAMS' PERSONNEL FILE,
THUS COMPLETING STEP 2 OF THE GRIEVANCE PROCEDURE.
FOLLOWING THE REJECTION OF HIS GRIEVANCE IN STEP 2, WILLIAMS SOUGHT
OUT AND EVENTUALLY MET CHIEF STEWARD TARWACKI AND INFORMED HIM THAT HE
WISHED TO PROCESS HIS GRIEVANCE THROUGH THE THIRD STEP OF THE GRIEVANCE
PROCEDURE. TARWACKI, WHO APPARENTLY WAS ABOUT TO GO ON ANNUAL LEAVE,
INFORMED WILLIAMS THAT HE WAS AND HAD BEEN REPRESENTING BERNYCE HAMLIN,
THE OTHER PARTY INVOLVED IN THE GRIEVANCE, AND THAT HE THOUGHT THAT IT
WOULD BE A CONFLICT OF INTEREST TO ALSO REPRESENT WILLIAMS. TARWACKI
THEN SUGGESTED THAT WILLIAMS CONTACT SHOP STEWARD TALBERT, WHO HE
THOUGHT HAD BEEN PROCESSING WILLIAMS' GRIEVANCE IN THE EARLY STAGES, AND
TELL HIM THAT TARWACKI HAD AUTHORIZED HIM (TALBERT) TO ACT IN TARWACKI'S
BEHALF IN PROCESSING THE GRIEVANCE OF WILLIAMS THROUGH THE THIRD STEP OF
THE GRIEVANCE PROCEDURE. /1/ THEREAFTER, WILLIAMS MADE NO ATTEMPT TO
CONTACT TALBERT OR ANY OTHER NAMED SHOP STEWARD WITH RESPECT TO
PROCESSING HIS GRIEVANCE THROUGH THE THIRD STEP. WILLIAMS DID, HOWEVER,
ON OR ABOUT AUGUST 16, 1973, INFORMALLY SUBMIT A SHORT NOTE TO LOCAL
2028 PRESIDENT TYLER WHEREIN HE NOTED THAT THE CHIEF STEWARD AND HIS
ASSISTANT WERE ON VACATION AND URGED HIM TO KEEP HIS GRIEVANCE MOVING
THROUGH THE 3RD STEP OF THE GRIEVANCE PROCEDURE. THE NOTE WAS
UNACCOMPANIED BY ANY DATA BEARING ON THE GRIEVANCE OR ANY EXPLANATION
THEREOF.
ALTHOUGH COMPLAINANT WILLIAMS CONTENDS THAT THE ALLEGED REFUSAL WAS
PREDICATED ON HIS SUPPORT FOR AN OPPOSING SLATE OF CANDIDATES, NO
EVIDENCE WAS ENTERED INTO THE RECORD INDICATING ANIMUS ON THE PART OF
THE NEWLY ELECTED SLATE OF LOCAL 2028 OFFICERS, STEWARDS AND/OR
COMMITTEEMEN TOWARDS WILLIAMS OR ANY OTHER FORMER OFFICIAL OF LOCAL
2028.
SECTION 1(A) OF EXECUTIVE ORDER 11491, AS AMENDED, GUARANTEES EACH
EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT THE RIGHT TO
FREELY AND WITHOUT PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A
LABOR ORGANIZATION OR TO REFRAIN FROM SUCH ACTIVITY. THE "RIGHT TO
ASSIST A LABOR ORGANIZATION EXTENDS TO PARTICIPATION IN THE MANAGEMENT
OF THE ORGANIZATION." UNION ABRIDGEMENT OF SUCH RIGHTS CONSTITUTES A
VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
IN VIEW OF THE FOREGOING CITED PROVISIONS OF THE ORDER, IT IS CLEAR
THAT IF CHIEF STEWARD TARWACKI'S ALLEGED REFUSAL TO PROCESS WILLIAMS'
GRIEVANCE WAS IN ANY WAY CONNECTED WITH WILLIAMS' ACTIVITIES IN SUPPORT
OF AN OPPOSING SLATE OF LOCAL 2028 OFFICERS, SUCH REFUSAL WOULD BE
VIOLATIVE OF SECTION 19(B)(1) OF THE ORDER. HOWEVER, I FIND THAT SUCH
WAS NOT THE CASE.
TARWACKI IN HIS CAPACITY AS CHIEF STEWARD AND A RESPONSIBLE UNION
REPRESENTATIVE DID NOT REFUSE TO PROCESS WILLIAMS' GRIEVANCE BUT MERELY
DECLINED TO BE HIS REPRESENTATIVE THEREON DUE TO THE FACT THAT HE WAS,
AND HAD BEEN, REPRESENTING THE OTHER COMBATANT INVOLVED IN WILLIAMS'
GRIEVANCE. WHETHER, AS HE CONCLUDED, REPRESENTATION OF BOTH GRIEVANTS
WOULD HAVE RESULTED IN A CONFLICT OF INTEREST, THE FACT REMAINS THAT HE
SUGGESTED AND AUTHORIZED ANOTHER UNION REPRESENTATIVE TO ACT IN HIS
STEAD. ACCORDINGLY, IN THE ABSENCE OF ANY EVIDENCE THAT SUCH AUTHORIZED
ALTERNATE REPRESENTATIVE, WHO WILLIAMS ADMITTEDLY DID NOT CONTACT, HAD
EITHER REFUSED TO PROCESS WILLIAMS' GRIEVANCE, WAS UNACCEPTABLE TO
MANAGEMENT, OR ACTED IN A DILATORY MANNER TO WILLIAMS DETRIMENT, I FIND
INSUFFICIENT EVIDENCE TO SUPPORT THE ALLEGATIONS OF THE COMPLAINT.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(B)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I
RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
DATED: JULY 11, 1974
WASHINGTON, D.C.
/1/ WHILE WILLIAMS ACKNOWLEDGES SUCH A CONVERSATION WITH TARWACKI, HE
PLACES IT AS OCCURRING AFTER TARWACKI HAD RETURNED FROM ANNUAL LEAVE AND
AT A DATE WELL PASSED THE TIME LIMITS SET FORTH IN STEP 3 FOR FURTHER
PROCESSING A REJECTED STEP 2 GRIEVANCE. WILLIAMS FURTHER TESTIFIED THAT
THE CONVERSATION HE HAD WITH TARWACKI PRIOR TO TARWACKI TAKING ANNUAL
LEAVE CONCERNED ITSELF SOLELY WITH THE TIME LIMITS INVOLVED IN
PROCESSING A GRIEVANCE FROM STEP 2 TO STEP 3 AND THAT TARWACKI ASSURED
HIM THAT HE COULD TAKE UP TO 300 DAYS TO PROCESS SAME. TARWACKI DENIED
EVER DISCUSSING TIME LIMITS WITH WILLIAMS OR HAVING MORE THAN ONE
DISCUSSION WITH HIM RELATIVE TO HIS GRIEVANCE. HAVING OBSERVED BOTH
WITNESSES, I AM INCLINED TO VIEW TARWACKI'S RECOLLECTION OF THE EVENTS
AS THE MORE RELIABLE AND ACCORDINGLY CREDIT HIS TESTIMONY IN THIS
RESPECT. WILLIAMS, ON THE OTHER HAND, WHILE APPEARING TO BE A MOST
SINCERE WITNESS HAD EXTREME DIFFICULTY IN RECOLLECTING THE SEQUENCE OF
EVENTS UNDERLYING THE PROCESSING OF HIS GRIEVANCE.
4 A/SLMR 430; P. 580; CASE NO. 53-6627; SEPTEMBER 30, 1974.
FEDERAL AVIATION ADMINISTRATION
CLEVELAND ARTC CENTER,
A/SLMR NO. 430
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
CLEVELAND CENTER, PATCO-MEBA, AFL-CIO (COMPLAINANT), ALLEGING THAT THE
RESPONDENT ACTIVITY VIOLATED SECTIONS 19(A)(1), (5), AND (6) OF THE
ORDER WHEN IT REFUSED THREE OF ITS EMPLOYEES REPRESENTATION DURING A
PROCEEDING BEFORE THE RESPONDENT'S FACILITY REVIEW BOARD. THE
COMPLAINANT CONTENDS THAT THIS PROCEEDING CONSTITUTED A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER, AND THAT
DENIAL OF REPRESENTATION INTERFERED WITH THE EMPLOYEES RIGHTS UNDER THE
ORDER, DENIED RECOGNITION TO THE EXCLUSIVE REPRESENTATIVE, AND WAS A
FAILURE TO NEGOTIATE OR CONSULT WITH COMPLAINANT REGARDING THE
ESTABLISHMENT OF A PROCEDURE WHICH WOULD INSURE THE EXCLUSIVE
REPRESENTATIVE PRESENCE AT THIS TYPE OF MEETING.
THE ADMINISTRATIVE LAW JUDGE FOUND NO EVIDENCE THAT THE RESPONDENT
EVER REFUSED TO NEGOTIATE OR CONSULT ON THIS OR ANY OTHER SUBJECT AND,
THEREFORE, HE RECOMMENDED DISMISSING THE 19(A)(6) ALLEGATION. WITH
REGARD TO THE 19(A)(1) AND 19(A)(5) ALLEGATION, THE ADMINISTRATIVE LAW
JUDGE CONCLUDED THAT THE PURPOSE OF THE FACILITY REVIEW BOARD, WHICH
INVESTIGATES SYSTEM ERRORS, WAS CLEARLY INVESTIGATIVE IN NATURE AND THAT
IT ONLY HAD THE AUTHORITY TO RECOMMEND REMEDIAL ACTION, INCLUDING
DISCIPLINE. THEREFORE, IN THE ADMINISTRATIVE LAW JUDGE'S VIEW, EVEN
ASSUMING THAT THE PROCEEDINGS OF THE FACILITY REVIEW BOARD INCLUDED
FORMAL DISCUSSION BETWEEN MANAGEMENT AND EMPLOYEES, THE DISCUSSION DID
NOT CONCERN GRIEVANCES OR PERSONNEL POLICIES AND PRACTICES OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT AS
PRESCRIBED BY SECTION 10(E) OF THE ORDER. ACCORDINGLY, HE RECOMMENDED
THAT THE COMPLAINT BE DISMISSED.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE
PROCEEDINGS BEFORE THE FACILITY REVIEW BOARD DID NOT CONSTITUTE A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. UNDER
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S
DENIAL OF UNION REPRESENTATION TO THE CONTROLLERS WHO APPEARED BEFORE
THE BOARD WAS NOT VIOLATIVE OF SECTIONS 19(A)(1), (5) OR (6) OF THE
ORDER. ACCORDINGLY, HE ORDERED THAT THE UNFAIR LABOR PRACTICE COMPLAINT
BE DISMISSED.
FEDERAL AVIATION ADMINISTRATION,
CLEVELAND ARTC CENTER,
OBERLIN, OHIO
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, CLEVELAND CENTER,
PATCO-MEBA, AFL-CIO
ON JULY 31, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED IN
THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. NO EXCEPTIONS WERE FILED TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I FIND, IN AGREEMENT WITH
THE ADMINISTRATIVE LAW JUDGE, THAT, UNDER THE CIRCUMSTANCES, THE
PROCEEDINGS BEFORE THE FACILITY REVIEW BOARD DID NOT CONSTITUTE A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND THAT
DENIAL OF UNION REPRESENTATION TO THE CONTROLLERS WHO APPEARED BEFORE
THE BOARD WAS NOT VIOLATIVE OF SECTIONS 19(A)(1), (5) OR (6) OF THE
ORDER. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 53-6627 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ SEE, IN THIS REGARD, DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, LAS VEGAS AIR TRAFFIC CONTROL TOWER, LAS VEGAS,
NEVADA, A/SLMR NO. 429.
IN THE MATTER OF
FEDERAL AVIATION ADMINISTRATION,
CLEVELAND ARTC CENTER,
OBERLIN, OHIO
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, CLEVELAND CENTER
PATCO-MEBA, AFL-CIO
E. L. EMBRY
OFFICE OF LABOR RELATIONS
FEDERAL AVIATION ADMINISTRATION
800 INDEPENDENCE AVENUE, S.W.
WASHINGTON, D.C. 20591
ROBERT E. MEYER
VICE PRESIDENT-PATCO
3158 DES PLAINES AVENUE
DES PLAINES, ILLINOIS 60018
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED MAY 1, 1973 AND FILED MAY 7, 1973. THE
COMPLAINT ALLEGED THAT THREE EMPLOYEES IN THE UNIT REQUESTED UNION
REPRESENTATION BY THE UNIT'S RECOGNIZED REPRESENTATIVE AT AN INCIDENT
REVIEW BOARD HEARING AND THAT SUCH REQUEST WAS DENIED, AND THAT AS A
RESULT OF THE HEARING AND RESULTING FINDINGS ONE OF THE THREE EMPLOYEES
WAS ORALLY ADMONISHED BY HIS SUPERVISOR. THIS WAS ALLEGED TO CONSTITUTE
A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER FOR INTERFERING
WITH THE EMPLOYEE'S RIGHT TO REPRESENTATION; A VIOLATION OF SECTION
19(A)(5) BY DENYING RECOGNITION TO AN EXCLUSIVE REPRESENTATIVE; AND A
VIOLATION OF SECTION 19(A)(6) "BY THE ACTIVITY'S FAILING TO NEGOTIATE OR
CONSULT ON ESTABLISHING A PROCEDURE WHICH WOULD INSURE THAT THE
EXCLUSIVELY RECOGNIZED REPRESENTATIVE BE PRESENT AT THIS TYPE OF
MEETING."
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. ON MARCH 4, 1974 THE ASSISTANT REGIONAL
DIRECTOR ISSUED A NOTICE OF HEARING ON THE COMPLAINT TO BE HELD ON MARCH
27, 1974 IN OBERLIN, OHIO. HEARINGS WERE HELD ON MARCH 27 AND 28 IN
OBERLIN. THE COMPLAINANT WAS REPRESENTED BY ITS REGIONAL VICE PRESIDENT
(GREAT LAKES REGION) AND THE RESPONDENT BY THE CHIEF OF UNION MANAGEMENT
RELATIONS DIVISION, OFFICE OF LABOR RELATIONS, FEDERAL AVIATION
ADMINISTRATION. PURSUANT TO EXTENSIONS OF TIME REQUESTED AND GRANTED,
BRIEFS WERE TIMELY FILED BY THE PARTIES JUNE 3, 1974.
PATCO-MEBA, AFL-CIO, IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE OF THE
AIR TRAFFIC CONTROLLERS OF THE FEDERAL AVIATION ADMINISTRATION INCLUDING
THOSE EMPLOYED AT THE CLEVELAND ARTC CENTER. CERTIFICATION OF PATCO WAS
ON OCTOBER 20, 1972 BUT IT WAS NOT UNTIL APRIL 1973 THAT IT ENTERED INTO
A FORMAL CONTRACT, INCLUDING A NEGOTIATED GRIEVANCE PROCEDURE, WITH FAA.
PRIOR TO APRIL 1973 THERE WAS AN AGENCY PRESCRIBED GRIEVANCE PROCEDURE.
ON JANUARY 2, 1973 A SYSTEM ERROR OCCURRED WITH RESPECT TO AN
AIRPLANE PASSING FROM THE CONTROL OF THE CLEVELAND CENTER TO THE CONTROL
OF THE NEW YORK CENTER. AS A RESULT OF THE ERROR, THERE WAS A LESS THAN
STANDARD SEPARATION OF AIRPLANES.
AN FAA ORDER IN EFFECT AT THE TIME CONTAINED, AMONG MANY OTHER
PROVISIONS, THE FOLLOWING:
"3. AT SYSTEM ERROR. AN OPERATIONAL ERROR IN WHICH A FAILURE OF THE
EQUIPMENT, HUMAN, PROCEDURAL, AND/OR OTHER SYSTEM ELEMENTS, INDIVIDUALLY
OR IN COMBINATION, RESULTS IN LESS THAN THE APPROPRIATE SEPARATION
MINIMA . . . BEING PROVIDED TO AN AIRCRAFT RECEIVING AN AIR TRAFFIC
SERVICE . . .
"4. INTRODUCTION. AN IMPORTANT FUNCTION OF EFFECTIVE AIR TRAFFIC
CONTROL MANAGEMENT IS THE IDENTIFICATION AND CORRECTION OF SYSTEM ERRORS
WHICH OCCUR AS A RESULT OF BASIC WEAKNESSES INHERENT IN THE COMPOSITE
MAN-MACHINE SYSTEM. THIS PROGRAM IS ORIENTED TOWARD THE IDENTIFICATION
OF ALL THE CAUSES OF SYSTEM ERRORS SO THAT EFFECTIVE CORRECTIVE ACTION
MAY BE IMPLEMENTED IN ALL AREAS OF THE SYSTEM.
"7. RESPONSIBILITIES
B. THE FACILITY CHIEF . . .
(1) RESPONSIBILITY. THE FACILITY CHIEF SHALL BE RESPONSIBLE FOR
ESTABLISHING FACILITY REVIEW BOARD AND SHALL BE ACCOUNTABLE FOR ITS
FUNCTIONS OF:
(A) INVESTIGATION AND REPORTING, IN ACCORDANCE WITH THE SYSTEM ERROR
REPORTING FORM AND ITS ACCOMPANYING INSTRUCTIONS, ALL SYSTEM ERRORS
OCCURRING IN THE FACILITY.
(B) RECOMMENDING TO THE FACILITY CHIEF CORRECTIVE ACTIONS BASED ON AN
OBJECTIVE ANALYSIS OF THE INFORMATION DERIVED FROM THE INVESTIGATION.
BOARD FINDINGS SHALL IDENTIFY WHETHER THE ERROR WAS PRIMARILY "HUMAN" OR
DUE TO OTHER SYSTEM ELEMENTS ("MACHINE"). IF HUMAN ERROR WAS INVOLVED,
THE FULL BOARD SHALL PARTICIPATE IN IDENTIFYING THE ERROR AND THE
DEVELOPMENT OF THE GENERAL NATURE OF CORRECTIVE ACTION RECOMMENDED;
I.E., DISCUSSION, TRAINING, DISCIPLINARY ACTION, OTHER PERSONNEL
ACTIONS."
ATTACHMENT 1 TO THE ORDER, PROVIDED
"25. RECOMMENDATIONS FOR CORRECTIVE ACTION. SPECIFIC CORRECTIVE
ACTIONS COMMENSURATE WITH THE BASIC CAUSES DEVELOPED IN THE ANALYSIS
SHOULD BE RECOMMENDED FOR EACH OCCURRENCE. RECOMMENDATIONS FOR
CORRECTIVE ACTIONS DEALING WITH "MACHINE" ELEMENTS SHOULD INCLUDE SUCH
ITEMS AS NEW OR REVISED PROCEDURES, EQUIPMENT CHANGES OR MODIFICATIONS,
FACILITY LAYOUT, ENVIRONMENTAL CONDITIONS, ETC. RECOMMENDATIONS FOR
CORRECTIVE ACTIONS DEALING WITH THE "HUMAN" ELEMENT MAY TAKE THE FORM OF
DISCUSSION, TRAINING, DISCIPLINARY ACTION, OR OTHER FORMS OF PERSONNEL
ACTIONS.
ON FEBRUARY 1, 1973 THE AUTHORITY OF THE FACILITY SYSTEM ERROR REVIEW
BOARD TO RECOMMEND CORRECTIVE ACTION WITH RESPECT TO THE "HUMAN" ELEMENT
IN A SYSTEM ERROR WAS DELETED, AND THE FACILITY CHIEF WAS TO TAKE
APPROPRIATE CORRECTIVE ACTION, IF ANY, ON HIS OWN INITIATIVE.
IN ACCORDANCE WITH THE FAA ORDER QUOTED FROM ABOVE, AFTER THE SYSTEM
ERROR OF JANUARY 2, 1973 THE FACILITY SYSTEM ERROR REVIEW BOARD
SCHEDULED A HEARING FOR JANUARY 23, 1973 TO INVESTIGATE AND REPORT ON
THE ERROR. AMONG THOSE REQUESTED TO APPEAR AT THE HEARING AND PRESENT
STATEMENTS WERE AIR TRAFFIC CONTROLLERS CLYDE R. GATES, EUGENE A.
HORVATT, AND JOHN M. PAOLINO. ON JANUARY 22, THEY JOINTLY REQUESTED OF
THE FACILITY CHIEF THAT THE LOCAL PRESIDENT OF PATCO, REX EVELSIZER, BE
PRESENT AT THE HEARING. THEY MADE THE REQUEST BECAUSE THEY WERE
APPREHENSIVE THAT DISCIPLINE MIGHT RESULT FROM THE INVESTIGATION. THE
REQUEST WAS DENIED THE SAME DAY.
GENERALLY, AND IN THE CASE, INDIVIDUALS GIVE EVIDENCE SEPARATELY TO
THE FACILITY SYSTEM ERROR REVIEW BOARD; NO OTHER WITNESSES WERE PRESENT
WHEN A WITNESS TESTIFIED. THERE IS NO TRANSCRIPT OF THE PROCEEDINGS
BEFORE THE SYSTEM ERROR REVIEW BOARD. THE PERSONS APPEARING SUBMIT
STATEMENTS TO THE BOARD AND THE BOARD MAY THEN ASK QUESTIONS OR ENGAGE
IN DISCUSSION.
THE PURPOSE OF AN INQUIRY BY THE SYSTEM ERROR REVIEW BOARD, AS
TESTIFIED TO BY ITS CHAIRMAN AND BY THE FACILITY CHIEF AND PROVIDED IN
THE FAA ORDER, /1/ IS TWO-FOLD. FIRST, TO INVESTIGATE AND EVALUATE ALL
FACTORS ASSOCIATED WITH THE CAUSE OF THE ERROR, SUCH AS: THE FAILURE,
MALFUNCTION, OR SUBSTANDARD PERFORMANCE OF EQUIPMENT OR DEFICIENCY IN
ITS LAYOUT; HUMAN CAUSE, SUCH AS SUBSTANDARD PERFORMANCE OR
NON-ADHERENCE TO PROCEDURES BY FACILITY PERSONNEL; PROCEDURAL ERROR,
SUCH AS THE ABSENCE, INADEQUACY, OR INCORRECTNESS OF EXISTING
INSTRUCTIONS; UNREASONABLY HIGH TRAFFIC VOLUME, UNEXPECTED TRAFFIC
SITUATIONS; UNUSUAL WEATHER, NOISE, DISTRACTIONS, ERRONEOUS INFORMATION
FROM OUTSIDE SOURCES, "UNTENABLE" ENVIRONMENTAL CONDITIONS, OR ANY OTHER
CAUSE. THE SECOND PURPOSE OF THE INQUIRY BY THE REVIEW BOARD IS TO MAKE
RECOMMENDATIONS ON STEPS TO BE TAKEN TO PREVENT A RECURRENCE OF THE
ERROR.
THE BOARD MADE ITS REPORT TO THE FACILITY CHIEF, M.L. KOEHLER,
SOMETIME AFTER JANUARY 25 AND BEFORE FEBRUARY 3, 1973. (THE REPORT WAS
NOT INTRODUCED IN EVIDENCE). IT CONTAINED FIVE RECOMMENDATIONS, ONE OF
WHICH WAS THAT HORVATH'S SUPERVISOR ORALLY ADMONISH HIM CONCERNING HIS
FAILURE TO EFFECTUATE A RADAR HANDOFF (DESPITE HIS EFFORTS TO DO SO).
UPON RECEIVING A REPORT AND RECOMMENDATION FROM THE SYSTEM REVIEW
BOARD, THE FACILITY CHIEF USUALLY MAKES HIS OWN ADDITIONAL INVESTIGATION
AND EVALUATION, AND MR. KOEHLER DID SO IN THIS CASE. ON FEBRUARY 5, HE
DIRECTED HORVATH'S SUPERVISOR TO ADMONISH HORVATH ORALLY AND DISCUSS
WITH HIM PRIORITY OF DUTIES. THE SUPERVISOR DID SO, PRIVATELY, WITH NO
ONE ELSE PRESENT. THE FACILITY CHIEF ALSO ASKED EACH OF THE SEVEN
ASSISTANT CHIEFS TO TELL EACH SUPERVISOR OF THE ERROR THAT HAD OCCURRED
SO THAT THE SUPERVISORS COULD TELL THE OTHER CONTROLLERS WHAT HAD
HAPPENED RESULTING IN TWO AIRCRAFT UNDER THE CONTROL OF THE NEW YORK
CENTER COMING WITHIN LESS THAN STANDARD SEPARATION.
THE FACILITY CHIEF DID NOT CONSIDER THE ORAL ADMONISHMENT TO HORVATH
TO BE THE IMPOSITION OF DISCIPLINE OR ADVERSE ACTION OF ANY KIND. THERE
IS NO RECORD MADE IN AN EMPLOYEE'S PERSONNEL FILE OF AN ORAL
ADMONISHMENT. UNDER THE AGENCY (NON-NEGOTIATED) GRIEVANCE PROCEDURE,
DISCIPLINE SUCH AS A LETTER OF WARNING OR A LETTER OF REPRIMAND OR MORE
SEVERE ACTION CAN BE THE SUBJECT OF A GRIEVANCE OR AN APPEAL. BEFORE
ANY SUCH ACTION IS TAKEN THE INDIVIDUAL IS TOLD IT IS CONTEMPLATED AND
HAS A RIGHT TO REPRESENTATION AT SUBSEQUENT PROCEEDINGS AND HIS
REPRESENTATIVE HAS ACCESS TO ALL PERTINENT MATERIALS. THAT PROCEDURE
WAS NOT FOLLOWED IN THIS CASE.
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION 19(A)(6)
OF THE EXECUTIVE ORDER IN FAILING TO NEGOTIATE OR CONSULT ON
ESTABLISHING A PROCEDURE THAT WOULD GIVE THE EXCLUSIVE REPRESENTATIVE A
RIGHT TO BE PRESENT AT MEETINGS OF A SYSTEM ERROR REVIEW BOARD. THERE
IS NO EVIDENCE THAT THE RESPONDENT EVER REFUSED TO NEGOTIATE OR CONSULT
ON THAT OR ANY OTHER SUBJECT.
AN EXAMINATION OF THE PERTINENT FAA ORDER UNDER WHICH THE FACILITY
SYSTEM ERROR REVIEW BOARD FUNCTIONS (R. EXH. 1) MAKES IT PLAIN THAT ITS
PURPOSE IS TO INVESTIGATE AND REPORT ON WHAT HAPPENED WHEN AIRCRAFT IN
FLIGHT GET CLOSER THAN STANDARD SEPARATION AND TO RECOMMEND REMEDIAL
ACTION. IT HAS NO POWER TO ADOPT OR INSTITUTE REMEDIAL ACTION. WHEN
THE FACILITY CHIEF RECEIVES THE BOARD'S REPORT HE MAKES HIS OWN
ADDITIONAL INVESTIGATION AND EVALUATION AND THEN FOLLOWS OR DOES NOT
FOLLOW THE BOARD'S RECOMMENDATIONS. AT THE TIME OF ITS INVESTIGATION IN
THIS CASE THE BOARD COULD INCLUDE DISCIPLINARY ACTION AMONG ITS
RECOMMENDATIONS; A WEEK LATER THE AUTHORITY TO INCLUDE SUCH A
RECOMMENDATION WAS DELETED.
THE COMPLAINANT PREDICATES ITS CONTENTION THAT GATES, HORVATH, AND
PAOLINO HAD A RIGHT TO UNION REPRESENTATION, AS THEY REQUESTED, AT THE
BOARD'S INVESTIGATION ON THE LAST SENTENCE OF SECTION 10(E) OF THE
EXECUTIVE ORDER. THAT SENTENCE STATES:
THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO BE
REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR EMPLOYEE
REPRESENTATIVES CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING
CONDITIONS OF EMPLOYEES IN THE UNIT.
IT MAY FAIRLY BE ASSUMED THAT THE PROCEEDINGS AT THE BOARD'S
INVESTIGATION INCLUDED FORMAL DISCUSSIONS. IT MAY BE ASSUMED, ALTHOUGH
IT IS SOMEWHAT QUESTIONABLE, THAT IN PART THEY INCLUDED FORMAL
DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES. BUT IT IS NOT AT ALL SUCH
DISCUSSIONS THAT A RECOGNIZED REPRESENTATIVE HAS THE RIGHT TO AN
OPPORTUNITY TO BE REPRESENTED. IT IS ONLY AT THOSE THAT CONCERN
"GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT."
THE DISCUSSIONS AT THE BOARD'S INVESTIGATION DID NOT CONCERN
GRIEVANCES; NO GRIEVANCE WAS PENDING. NOR DID THEY INVOLVE "PERSONNEL
POLICIES AND PRACTICES" AS THAT TERM IS NORMALLY UNDERSTOOD. I
UNDERSTAND SUCH TERM TO INCLUDE SUCH MATTERS AS PROMOTIONS, THE
IMPOSITION OF DISCIPLINE, THE TIMING OF VACATIONS, ASSIGNMENT OF
OVERTIME WORK, TRANSFERS, ASSIGNMENT TO SHIFTS, AND THE LIKE. I DO NOT
UNDERSTAND THAT TERM TO INCLUDE SUCH MATTERS AS THE METHODS AND
PERSONNEL BY WHICH THE AGENCY'S FUNCTIONS ARE TO BE PERFORMED. SUCH
MATTERS ARE EXPRESSLY REMOVED FROM THE BARGAINING OBLIGATION BY SECTION
12(B)(5) OF THE EXECUTIVE ORDER.
NOR WERE THE PROCEEDINGS OF THE REVIEW BOARD CONCERNED WITH "OTHER
MATTERS AFFECTED GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT."
AT LEAST THEY WERE NOT CONCERNED WITH SUCH "GENERAL WORKING CONDITIONS"
AS THE SCOPE OF THAT TERM IS DELINEATED IN DEPARTMENT OF DEFENSE, TEXAS
AIR NATIONAL GUARD, A/SLMR NO. 336. IN THAT CASE THE ASSISTANT
SECRETARY HELD THAT A DISCUSSION WAS NOT A DISCUSSION INVOLVING GENERAL
WORKING CONDITIONS WHEN IT "HAD NO WIDER RAMIFICATIONS THAN . . .
DISCUSSIONS AT A PARTICULAR TIME WITH AN INDIVIDUAL EMPLOYEE . . .
CONCERNING PARTICULAR INCIDENTS AS TO HIM." (AT PAGE 4.) THE DISCUSSIONS
IN THIS CASE WITH THE THREE CONTROLLERS WERE INDIVIDUAL DISCUSSIONS
CONCERNING INDIVIDUAL CONDUCT AT A PARTICULAR TIME CONCERNING A
PARTICULAR INCIDENT.
THE FACT THAT EACH OF THE THREE CONTROLLERS WAS APPREHENSIVE THAT THE
BOARD'S INVESTIGATION MIGHT LEAD TO DISCIPLINARY ACTION IS ALSO
IRRELEVANT IN THE LIGHT OF THE TEXAS AIR NATIONAL GUARD CASE. IN
FOOTNOTE 8 IN THAT CASE THE ASSISTANT SECRETARY SAID:
"IN MY VIEW, AN INDIVIDUAL EMPLOYEE IS NOT ENTITLED IN EVERY INSTANCE
TO HAVE HIS EXCLUSIVE
REPRESENTATIVE PRESENT BECAUSE OF A CONCERN THAT A MEETING MAY
ULTIMATELY LEAD TO A GRIEVANCE
OR 'ADVERSE ACTION.'"
I CONCLUDE THAT THE COMPLAINANT DID NOT HAVE THE RIGHT TO AN
OPPORTUNITY TO BE REPRESENTED AT THE INVESTIGATION HERE INVOLVED AND
THAT THE EMPLOYEES DID NOT HAVE THE RIGHT TO HAVE THEIR REPRESENTATIVE
GIVEN SUCH OPPORTUNITY.
DECISIONS UNDER THE NATIONAL LABOR RELATIONS ACT, WHILE NOT
CONTROLLING, FURNISH INTERESTING CORROBORATION OF THE CONCLUSION REACHED
ABOVE. IN A NUMBER OF CASES THE NATIONAL LABOR RELATIONS BOARD HAS HELD
THAT WHEN AN INTERVIEW OR MEETING WITH AN EMPLOYEE IS HELD TO DETERMINE
THE FACTS CONCERNING SUSPECTED MISCONDUCT, AND THE REPRESENTATIVES OF
THE EMPLOYER AT THE INTERVIEW DO NOT HAVE THE AUTHORITY TO IMPOSE
DISCIPLINE BUT ONLY TO REPORT TO A MANAGEMENT OFFICIAL WHO DOES HAVE
DISCIPLINARY AUTHORITY, THE
STEP 3 - IF NOT SATISFIED WITH THE DECISION IN STEP 2, THE EMPLOYEE
REPRESENTATIVE BE PRESENT AT THE INTERVIEW OR MEETING. /2/ IN THE THREE
CASES IN WHICH THE BOARD HELD THAT THE EMPLOYER COMMITTED AN UNFAIR
LABOR PRACTICE IN SUCH SITUATION, BECAUSE THE EMPLOYEE HAD REASONABLE
GROUNDS FOR BELIEVING THAT DISCIPLINE MIGHT EVENTUATE AS A RESULT OF THE
MEETING /3/ OR FOR OTHER REASONS /4/, THE BOARD WAS REVERSED BY THE
COURTS OF APPEALS. /5/ THE SUPREME COURT GRANTED A PETITION FOR A WRIT
OF CERTIORARI IN THE QUALITY MANUFACTURING CO. CASE AND THAT CASE WILL
BE HEARD AT THE OCTOBER, 1974 TERM, SO PERHAPS WE SHALL SOON HAVE MORE
DEFINITIVE ENLIGHTENMENT ON THIS LINE OF CASES.
SINCE THERE WAS NO EVIDENCE AT ALL TO SUSTAIN THE ALLEGED VIOLATION
OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER, THAT CLAIMED VIOLATION
SHOULD BE DISMISSED. AND SINCE THE EVIDENCE ADDUCED DOES NOT SUSTAIN,
BY A PREPONDERANCE OF THE EVIDENCE, THE ALLEGATIONS OF VIOLATIONS OF
SECTIONS 19(A)(1) AND 19(A)(5), THE COMPLAINT SHOULD BE DISMISSED IN ITS
ENTIRETY.
DATED: JULY 31, 1974
WASHINGTON, D.C.
/1/ R. EXH 1, ATTACHMENT 1, PP. 1-2
/2/ CHEVRON OIL CO., 66 LRRM 1353 (1967); ILLINOIS BELL TEL. CO., 78
LRRM 1109 (1971); LAFAYETTE RADIO ELECTRONICS, 78 LRRM 1693 (1971);
WESTERN ELECTRIC CO., 80 LRRM 1705 (1972).
/3/ QUALITY MFG. CO., 79 LRRM 1269 (1972); MOBIL OIL CORP., 80 LRRM
1188 (1972).
/4/ TEXACO, INC., 66 LRRM 1296 (1967).
/5/ TEXACO INC. V. NAT'L. LABOR REL. BD., 408 F. 2D 142 (5TH CIR.
1969); N.L.R.B. V. QUALITY MFG. CO., 481 F. 2D 1018 (4TH CIR. 1973),
PENDING ON GRANT OF CERTIORARI; MOBIL OIL CORP. V. N.L.R.B., 482 F. 2D
842 (7TH CIR. 1973).
4 A/SLMR 429; P. 569; CASE NO. 72-4176; SEPTEMBER 30, 1974.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
LAS VEGAS AIR TRAFFIC CONTROL TOWER,
LAS VEGAS, NEVADA
A/SLMR NO. 429
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION AFFILIATED WITH MARINE
ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (PATCO) AGAINST DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, LAS VEGAS AIR TRAFFIC
CONTROL TOWER (RESPONDENT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) OF THE ORDER BY REFUSING TO ACCORD HARRY HICKS, AN EMPLOYEE,
THE RIGHT TO HAVE A REPRESENTATIVE OF THE PATCO PRESENT DURING A
PROCEEDING BEFORE THE RESPONDENT'S FACILITY REVIEW BOARD, WHICH
PROCEEDING ALLEGEDLY CONSTITUTED A FORMAL DISCUSSION WITHIN THE MEANING
OF SECTION 10(E) OF THE ORDER. THE RESPONDENT DENIED HICKS' REQUEST FOR
REPRESENTATION BY THE PATCO DURING HIS APPEARANCE BEFORE THE FACILITY
REVIEW BOARD WHICH WAS CONDUCTING AN INVESTIGATION OF A SYSTEM ERROR IN
WHICH HICKS HAD BEEN INVOLVED. THE EVIDENCE ESTABLISHED THAT THE
FUNCTION OF THE FACILITY REVIEW BOARD, CONSISTING OF FIVE MEMBERS, TWO
OF WHOM ARE REQUIRED TO BE NONSUPERVISORY, IS WHOLLY INVESTIGATIVE AND
THAT IT HAS NO AUTHORITY TO RECOMMEND HUMAN CORRECTIVE ACTION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE PROCEEDINGS BEFORE
THE FACILITY REVIEW BOARD DID NOT CONSTITUTE A FORMAL DISCUSSION WITHIN
THE MEANING OF SECTION 10(E) OF THE ORDER. HE NOTED THAT SUCH
INVESTIGATION DID NOT CONCERN A GRIEVANCE, PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT AND RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
HE FURTHER CONCLUDED THAT EVEN IF THE RESPONDENT HAD VIOLATED THE ORDER
AS ALLEGED, HE WOULD RECOMMEND DISMISSAL OF THE COMPLAINT BECAUSE THE
MATTER HAD BEEN RENDERED MOOT IN VIEW OF THE FACT THAT THE RESPONDENT'S
EMPLOYEES NOW HAVE THE RIGHT TO UNION REPRESENTATION IN APPEARANCE
BEFORE THE FACILITY REVIEW BOARD.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE
PROCEEDINGS BEFORE THE FACILITY REVIEW BOARD DID NOT CONSTITUTE A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. UNDER
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S
DENIAL OF UNION REPRESENTATION DURING CONTROLLER HICKS' APPEARANCE
BEFORE THE BOARD WAS NOT VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. IN
VIEW OF THIS DISPOSITION, THE ASSISTANT SECRETARY FOUND IT UNNECESSARY
TO DECIDE WHETHER THE MATTER INVOLVED HEREIN HAD BEEN RENDERED MOOT.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
LAS VEGAS AIR TRAFFIC CONTROL TOWER,
LAS VEGAS, NEVADA
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFFILIATED WITH
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO
SAN FRANCISCO, CALIFORNIA
ON JULY 16, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I FIND, IN AGREEMENT WITH
THE ADMINISTRATIVE LAW JUGE, THAT UNDER THE CIRCUMSTANCES, THE
PROCEEDINGS BEFORE THE FACILITY REVIEW BOARD DID NOT CONSTITUTE A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND THAT THE
DENIAL OF UNION REPRESENTATION WHILE CONTROLLER HICKS WAS APPEARING
BEFORE THE BOARD WAS NOT VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
/1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4176 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ IN VIEW OF THIS DISPOSITION, I FIND IT UNNECESSARY TO DECIDE
WHETHER, AS CONCLUDED BY THE ADMINISTRATIVE LAW JUDGE, THE RESPONDENT'S
ACTION IN CHANGING ITS POLICY TO PERMIT REPRESENTATION BEFORE THE
FACILITY REVIEW BOARD RENDERED MOOT FURTHER PROCEEDINGS IN THIS MATTER.
IN THE MATTER OF:
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
LAS VEGAS AIR TRAFFIC CONTROL TOWER
LAS VEGAS, NEVADA,
AND
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION
AFFILIATED WITH MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO
SAN FRANCISCO, CALIFORNIA,
MR. E. L. EMBREY
LABOR-MANAGEMENT RELATIONS OFFICER
FEDERAL AVIATION ADMINISTRATION
800 INDEPENDENCE AVENUE, S.W.
WASHINGTON, D.C. 20590
MR. DARRELL D. REAZIN
REGIONAL VICE PRESIDENT
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION
WESTERN REGION
SUITE 400
220 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94104
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED. THE ISSUE
PRESENTED IS WHETHER THE AGENCY, FEDERAL AVIATION ADMINISTRATION, (FAA)
VIOLATED THE ORDER BY REFUSING TO PERMIT AN EMPLOYEE TO HAVE UNION
REPRESENTATION WHEN APPEARING BEFORE A FACILITY REVIEW BOARD CONVENED TO
INVESTIGATE A SYSTEM ERROR. IT WAS STIPULATED THAT A SYSTEM ERROR
OCCURRED ON FEBRUARY 23, 1973 (TR. 11) AND IT IS CONCEDED THAT, AT THE
TIME IN QUESTION, THE RESPONSIBILITY OF THE FACILITY REVIEW BOARD WAS TO
INVESTIGATE AND IDENTIFY THE CAUSE OF THE SYSTEM ERROR AND THAT THE
FACILITIES REVIEW BOARD DID NOT HAVE THE AUTHORITY TO, AND DID NOT IN
THIS INSTANCE, RECOMMEND DISCIPLINARY ACTION (BRIEF OF COMPLAINANT, PP.
4, 5).
THE COMPLAINT HEREIN, DATED MAY 4, 1973, AND FILED MAY 7, 1973, AND
THE AMENDED COMPLAINT, DATED MAY 9, 1973, AND FILED MAY 11, 1973,
ALLEGED A VIOLATION OF SECTION 19(A)(1) OF THE ORDER. A HEARING WAS
HELD IN LAS VEGAS, NEVADA, ON DECEMBER 11, 1973, AT WHICH BOTH PARTIES
WERE REPRESENTED AND TIMELY BRIEFS WERE THEREAFTER SUBMITTED. UPON THE
BASIS OF THE ENTIRE RECORD IN THIS CASE, I MAKE THE FOLLOWING FINDINGS
OF FACT, CONCLUSIONS AND RECOMMENDATIONS:
THE FACTS ARE NOT IN DISPUTE AND NO CREDITIBILITY ISSUES ARE
INVOLVED. THE FOLLOWING FINDINGS REFLECT THE ESSENTIAL FACTS INVOLVED.
1. PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFFILIATED
WITH MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO (PATCO), WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF AIR TRAFFIC CONTROLLERS IN
THE LAS VEGAS TOWER ON AUGUST 20, 1972. /1/ NEGOTIATIONS FOR A NATIONAL
AGREEMENT WERE IN PROGRESS AS OF FEBRUARY 23, 1973, BUT NO AGREEMENT HAD
BEEN REACHED AS OF THAT DATE. THE FIRST CONTRACT COVERING LAS VEGAS WAS
SIGNED APRIL 4, 1973.
2. ON FRIDAY, FEBRUARY 23, 1973, AT APPROXIMATELY 10:15 A.M., A
SYSTEM ERROR /2/ OCCURRED IN WHICH MR. HARRY HICKS, THEN AN AIR TRAFFIC
CONTROLLER IN THE LAS VEGAS AIR TRAFFIC CONTROL TOWER, WAS INVOLVED.
THE SYSTEM ERROR TOOK PLACE ABOUT ONE MINUTE AFTER MR. HICKS HAD BEEN
RELIEVED AT THE COMBINED RADAR POSITIONS (ARRIVAL EAST AND DEPARTURE
WEST) BY CONTROLLER ALBERT GEMOATS AND WHILE CONTROLLER HICKS WAS
STANDING BEHIND CONTROLLER GEMOATS. WHEN THE SYSTEM ERROR OCCURRED, THE
COORDINATOR, A TEAM SUPERVISOR, IMMEDIATELY STOOD UP AND WENT TO THE
ASSISTANT CHIEF. MR. HICKS WAS ASKED TO MAKE A STATEMENT OF THE SYSTEM
ERROR ABOUT TWO HOURS AFTER THE ERROR OCCURRED AND WAS THEN REMOVED FROM
RADAR CONTROL DUTIES AND ASSIGNED TO FLIGHT DATA DUTIES, (NON-CONTROL).
THE COMPENSATION FOR FLIGHT DATA WAS THE SAME AS THE COMPENSATION FOR
RADAR CONTROL.
3. THE AIR TRAFFIC SYSTEM ERROR REPORTING PROGRAM IS SET FORTH IN
FAA ORDER 8020.3 AND ATTACHMENT 1 THERETO, (RES. EXH. 1) /3/ DATED
DECEMBER 16, 1965. ON FEBRUARY 1, 1973, /4/ ORDER 8020.3 WAS AMENDED
AND REVISED TO SPECIFICALLY PROVIDE THAT FACILITY REVIEW BOARDS SHALL
NOT MAKE RECOMMENDATIONS FOR HUMAN CORRECTIVE ACTION (RES. EXH. 2).
PURSUANT TO ORDER 8020.3, THE CHIEF OF THE LAS VEGAS CONTROL TOWER
DESIGNATED THE MEMBERS OF THE FACILITY REVIEW BOARD ON JANUARY 24, 1973
(LASZ.2R, RES. EXH. 3). MR. HICKS WAS AN ALTERNATE MEMBER.
WHEN A SYSTEM ERROR OCCURS, IT IS INVESTIGATED BY THE FACILITY REVIEW
BOARD, THE MEMBERSHIP OF WHICH IS CONSTITUTED ON A CONTINUING BASIS, IN
ACCORDANCE WITH THE PROCEDURES AND GUIDELINES SET FORTH IN ORDER 8020.3.
THE FACILITY REVIEW BOARD CONSISTS OF FIVE MEMBERS, TWO OF WHOM MUST BE
NON-SUPERVISORY CONTROLLERS. THE FACILITY REVIEW BOARD CONDUCTS A GROUP
INVESTIGATION AND THE MEMBERS REACH A CONSENSUS AS TO THE FACTS
SURROUNDING THE INCIDENT. THE REPORT OF THE BOARD IS ORDINARILY, AND
WAS IN THE CASE OF THE SYSTEM ERROR OF FEBRUARY 23, 1973, WRITTEN BY THE
CHAIRMAN. AFTER THE REPORT OF THE BOARD IS WRITTEN, IT IS SUBMITTED TO
THE FACILITY CHIEF WHO MUST AGREE, OR NOT AGREE, WITH THE FINDINGS OF
THE BOARD. THE REPORT, WITH OR WITHOUT AGREEMENT OF THE FACILITY CHIEF,
IS FORWARDED TO THE REGIONAL REVIEW COMMITTEE FOR REVIEW, ALTHOUGH THE
EXTENT OF REVIEW IS UNCERTAIN SINCE THE REGIONAL COMMITTEE CAN NOT
OVERRULE OR CHANGE THE FINDINGS OF THE FACILITY REVIEW BOARD.
4. IN ANTICIPATION OF THE CONVENING OF THE FACILITY REVIEW BOARD TO
INVESTIGATE THE SYSTEM ERROR OF FEBRUARY 23, 1973, ON FEBRUARY 24, 1973,
MR. HICKS SUBMITTED A REQUEST, IN WRITING, TO MR. STUART A. HAYTER,
CHIEF, LAS VEGAS CONTROL TOWER, FOR PATCO REPRESENTATION WHILE APPEARING
BEFORE THE FACILITY REVIEW BOARD.(ASS'T. SEC. EXH. 1(A), EXHIBIT A,
ATTACHMENT 3) /5/ THIS REQUEST WAS DENIED, VERBALLY, BY MR. HAYTER ON
FEBRUARY 26, 1973. THE PRESIDENT OF THE PATCO LAS VEGAS TOWER LOCAL,
MR. NORMAN R. FISCHER, ALSO ASKED MR. HAYTER FOR PERMISSION TO REPRESENT
MR. HICKS BEFORE THE FACILITY REVIEW BOARD, IF IT SHOULD BECOME
NECESSARY FOR MR. HICKS TO APPEAR BEFORE IT, AND MR. HAYTER DENIED MR.
FISCHER'S REQUEST.
5. THE FACILITY REVIEW BOARD CONVENED ON FEBRUARY 26, 1973, TO
INVESTIGATE THE SYSTEM ERROR OF FEBRUARY 23, 1973, AND MR. HICKS
APPEARED BEFORE THE BOARD, WITHOUT REPRESENTATION AND UNDER PROTEST, ON
FEBRUARY 26, 1973. MR. HICKS HAD ALREADY SUBMITTED A WRITTEN STATEMENT,
AS NOTED ABOVE, THE MEMBERS OF THE BOARD ASKED QUESTIONS. OTHER PERSONS
WERE CALLED BEFORE THE FACILITY REVIEW BOARD, INCLUDING MR. GEMOATS.
MR. GEMOATS DID NOT REQUEST REPRESENTATION AND THERE WAS NO INDICATION
THAT ANY PERSON, OTHER THAN MR. HICKS OR MR. FISCHER ON HIS BEHALF,
REQUESTED REPRESENTATION WHILE APPEARING BEFORE THE FACILITY REVIEW
BOARD. ONLY MEMBERS OF THE FACILITY REVIEW BOARD WERE PRESENT DURING
THE APPEARANCE OF ANY WITNESSES.
6. MR. HICKS TESTIFIED THAT FACILITY REVIEW BOARDS MEET TO DETERMINE
FACTS (TR 18), ALTHOUGH HE FURTHER STATED THAT THEIR DETERMINATIONS LEAD
TO DISCIPLINARY ACTION IN THE CASE OF A PERSON WHO IS FOUND TO BE
NEGLIGENT OR WHO IS FOUND TO BE LACKING IN HIS OPERATIONAL TECHNIQUES.
/6/ THE PRESIDENT OF THE PATCO LOCAL, MR. FISCHER, TESTIFIED THAT A
FACILITY REVIEW BOARD IS A FACT FINDING PROCEDURE BY MANAGEMENT OF THE
CONTROL FACILITY AND THAT AFTER THE FACT FINDING BY THE BOARD IS MADE,
SOMEONE ELSE IN MANAGEMENT MAKES A DECISION AS TO WHETHER ANY
DISCIPLINARY ACTION SHOULD BE TAKEN (TR. 42-43).
NOT ONLY WAS FAA ORDER 8020.3 AMENDED FEBRUARY 1, 1973, PRIOR TO THE
CONVENING OF THE FACILITY REVIEW BOARD TO INVESTIGATE THE SYSTEM ERROR
OF FEBRUARY 23, 1973, TO RESCIND ANY AUTHORITY BY A FACILITY REVIEW
BOARD TO RECOMMEND ANY HUMAN CORRECTIVE ACTION (RES. EXH. 2), BUT THE
EVIDENCE IS BOTH CLEAR AND WITHOUT CONTRADICTION THAT: A) THIS WAS
FULLY UNDERSTOOD PRIOR TO THE PROCEEDINGS OF FEBRUARY 26, 1973; AND B)
THE FACILITY REVIEW BOARD, IN ITS REPORT CONCERNING THE SYSTEM ERROR OF
FEBRUARY 23, 1973, DID NOT MAKE ANY RECOMMENDATION FOR HUMAN CORRECTIVE
ACTION.
7. MR. HICKS TESTIFIED THAT HE "WAS VERY SATISFIED WITH THE RESULTS
OF THE FINDINGS OF THE REVIEW BOARD" (TR. 19, 21-22).
8. THE FEBRUARY 1, 1973, AMENDMENT OF FAA ORDER 8020.3 PLACED IN
EACH FACILITY CHIEF THE EXCLUSIVE AUTHORITY FOR INITIATING CORRECTIVE
ACTIONS, INCLUDING, IF APPROPRIATE IMMEDIATE DISCIPLINARY ACTION (RES.
EXH. 2). MR. STUART HAYTER, CHIEF OF THE LAS VEGAS CONTROL TOWER,
TESTIFIED THAT IN MAKING A DECISION AS TO WHETHER DISCIPLINARY ACTION IS
CALLED FOR, AS A RESULT OF A SYSTEM ERROR, HE DOES NOT RELY UPON "THE
REPORT-SYSTEM ERROR REPORT ITSELF /7/ MY OWN PERSONAL INVESTIGATION
WHICH COULD INCLUDE AND DOES GENERALLY INCLUDE REVIEWING THE VOICE
RECORDINGS, THE DOCUMENTS INVOLVED, SPEAKING PERSONALLY WITH THE PEOPLE
INVOLVED. A FAIRLY TOTAL INVESTIGATION IF YOU WANT TO CALL IT THAT."
(TR. 76-77).
SOME LITTLE TIME AFTER FEBRUARY 26, 1973, /8/ MR. HAYTER ISSUED A
FORMAL WRITTEN REPRIMAND TO MR. HICKS AND DIRECTED THAT HE BE PLACED IN
REMEDIAL TRAINING. (TR. 21) /9/ . SUBSEQUENTLY, MR. HICKS BID, AND
WAS SELECTED FOR, A POSITION AT THE REDDING, CALIFORNIA, AIR TRAFFIC
CONTROL TOWER AS AN AIR TRAFFIC CONTROLLER.
9. ON OR BEFORE JANUARY 4, 1973, PATCO HAD SUBMITTED IN ITS NATIONAL
NEGOTIATIONS, INTER ALIA, A PROPOSAL THAT THE AGENCY ACKNOWLEDGES THE
RIGHT OF THE UNION AND ITS REPRESENTATIVES TO PARTICIPATE IN ANY
AIRCRAFT ACCIDENT/INCIDENT INVESTIGATION. (RES. EXH. 4, "ARTICLE XL").
ON JUNE 20, 1973, THE AGENCY IN A GENERAL NOTICE TO ALL ATC FACILITIES
DIRECTED, INTER ALIA, THAT UPON REQUEST AN EMPLOYEE BE PERMITTED
REPRESENTATION WHILE APPEARING BEFORE A FACILITY REVIEW BOARD. (COMP.
EXH. 1). /10/
10. MR. HICKS AND COMPLAINANT WERE FULLY AWARE OF THE RIGHT TO
GRIEVE THE REPRIMAND AND DIRECTION OF REMEDIAL TRAINING UNDER THE
AGENCY'S GRIEVANCE PROCEDURE, AND THE RIGHT OF REPRESENTATION IN ANY
SUCH GRIEVANCE PROCEDURE WAS CONCEDED. THERE WAS NO EVIDENCE AS TO
WHETHER ANY GRIEVANCE WAS EVER FILED.
PATCO WAS THE CERTIFIED BARGAINING REPRESENTATIVE OF AIR CONTROLLERS
IN THE LAS VEGAS AIR TRAFFIC CONTROL TOWER FROM AND AFTER AUGUST 20,
1972, AND NATIONAL NEGOTIATIONS WERE IN PROGRESS AS OF FEBRUARY, 1973,
BUT THE FIRST COLLECTIVE BARGAINING CONTRACT COVER THE LAS VEGAS
FACILITY WAS NOT SIGNED UNTIL APRIL 4, 1973. A SYSTEM ERROR OCCURRED ON
FEBRUARY 23, 1973, IN WHICH MR. HICKS, A CONTROLLER AND MEMBER OF THE
PATCO BARGAINING UNIT, WAS INVOLVED AND MR. HICKS WAS DENIED THE RIGHT
TO HAVE UNION REPRESENTATION WHILE APPEARING BEFORE A FACILITY REVIEW
BOARD CONVENED TO INVESTIGATE AND IDENTIFY THE CAUSES OF THE SYSTEM
ERROR OF FEBRUARY 23, 1973. THE FACILITY REVIEW BOARD HAD NO AUTHORITY
TO RECOMMEND ANY HUMAN CORRECTIVE ACTION AND IN ITS REPORT WITH RESPECT
TO THE SYSTEM ERROR OF FEBRUARY 23, 1973, THE BOARD MADE NO SUCH
RECOMMENDATION.
SOMETIME AFTER THE REPORT OF THE FACILITY REVIEW BOARD WAS FILED, THE
CHIEF OF THE LAS VEGAS TOWER, MR. HAYTER, ISSUED A FORMAL WRITTEN
REPRIMAND TO MR. HICKS AND DIRECTED THAT HE BE PLACED IN REMEDIAL
TRAINING. THE DECISION TO IMPOSE DISCIPLINE WAS SOLELY MR. HAYTER'S;
HOWEVER, IN MAKING THIS DECISION, MR. HAYTER DID RELY UPON THE REPORT OF
THE FACILITY REVIEW BOARD AS WELL AS HIS OWN PERSONAL INVESTIGATION
INCLUDING REVIEWING THE VOICE RECORDINGS, THE DOCUMENTS INVOLVED, AND
SPEAKING PERSONALLY WITH THE PEOPLE INVOLVED. THE DISCIPLINE IMPOSED
WAS SUBJECT TO THE AGENCY'S GRIEVANCE PROCEDURE AND THE RIGHT TO UNION
REPRESENTATION AT ALL STAGES OF THE GRIEVANCE PROCEDURE WAS CONCEDED BY
THE COMPLAINANT.
WHILE IT IS TRUE, AS STATED BY MR. HICKS, THAT "REVIEW BOARDS MEET TO
DETERMINE FACTS WHICH LEAD TO DISCIPLINARY ACTION IN THE CASE OF A
PERSON WHO IS FOUND TO BE NEGLIGENT OR WHO IS FOUND TO BE LACKING IN HIS
OPERATIONAL TECHNIQUES", THE FUNCTIONS OF THE FACILITY REVIEW BOARD HERE
INVOLVED WAS WHOLLY INVESTIGATIVE AND IT HAD NO AUTHORITY TO RECOMMEND,
NOR DID IT RECOMMEND, ANY HUMAN CORRECTIVE ACTION. FROM FEBRUARY 1,
1973, ONLY THE FACILITY CHIEF HAD THE AUTHORITY TO INITIATE CORRECTIVE
ACTIONS, INCLUDING APPROPRIATE DISCIPLINARY ACTION. FROM, AND AFTER,
FEBRUARY 1, 1973, DISCIPLINE WAS ENTIRELY SEPARATE FROM THE
INVESTIGATIVE FUNCTION OF THE FACILITY REVIEW BOARD, ALTHOUGH THE
FACILITY CHIEF IN DECIDING WHETHER TO INITIATE DISCIPLINARY ACTION DOES,
IN PART, RELY UPON THE REPORT OF THE FACILITY REVIEW BOARD AS TO ITS
FINDINGS AS TO THE CAUSES OF THE SYSTEM ERROR, BUT HE ALSO MAKES HIS OWN
PERSONAL INVESTIGATION.
INVESTIGATION BY A FACILITY REVIEW BOARD IS MARKEDLY DIFFERENT FROM
THE INVESTIGATIVE TECHNIQUES NORMALLY ENCOUNTERED. FACILITY REVIEW
BOARDS CONDUCT FACT FINDING PURSUANT TO LONG ESTABLISHED GUIDELINES OF A
PUBLISHED AGENCY ORDER; ITS MEMBERSHIP IS COMPOSED OF PROFESSIONAL
SPECIALISTS, TWO OF WHOM MUST BE NON-SUPERVISORY; ITS REPORT DOES NOT
IDENTIFY INDIVIDUALS BY NAME, BUT ONLY BY KEY CODE; SINCE FEBRUARY 1,
1973, SUCH BOARDS HAVE HAD NO AUTHORITY TO RECOMMEND HUMAN CORRECTIVE
ACTION; AND DETERMINATIONS OF THE BOARD ARE CONSENSUS DECISIONS OF ALL
MEMBERS.
COMPLAINANT ASSERTS THAT BECAUSE THE REPORT OF THE FACILITY REVIEW
BOARD IS RELIED UPON AS A "BIG FACTOR" BY THE FACILITY CHIEF IN DECIDING
WHETHER HE SHALL INITIATE DISCIPLINE, THIS PLACES THE FACILITY REVIEW
BOARD IN THE DISCIPLINARY PROCEDURE; THAT SECTION 10(E) OF THE
EXECUTIVE ORDER APPLIES; AND THAT DENIAL OF UNION REPRESENTATION TO MR.
HICKS WHILE APPEARING BEFORE THE FACILITY REVIEW BOARD ON FEBRUARY 26,
1973, VIOLATED SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
IN EVALUATING AFFIRMATIVE RIGHTS UNDER THE EXECUTIVE ORDER, INCLUDING
THOSE GRANTED BY SECTION 10(E), RESERVED RIGHTS OF MANAGEMENT MUST FIRST
BE CONSIDERED. SECTION 12(B) PROVIDES, IN PART, AS FOLLOWS:
"(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE LAWS AND REGULATION-
(1) TO DIRECT EMPLOYEES OF THE AGENCY;
(2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
POSITIONS WITHIN THE AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE
OTHER DISCIPLINARY ACTION AGAINST EMPLOYEES;
(3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
OTHER LEGITIMATE REASONS;
(4) TO MAINTAIN THE EFFICIENCY OF THE GOVERNMENT OPERATIONS ENTRUSTED
TO THEM;
(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE CONDUCTED; AND
(6) TO TAKE WHATEVER ACTIONS AS MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN SITUATIONS OF EMERGENCY; . . ."
THE ADMINISTRATOR OF THE FEDERAL AVIATION PROGRAM IS EMPOWERED AND
CHARGED WITH THE DUTY TO PROMOTE SAFETY OF FLIGHT OF CIVIL AIRCRAFT IN
AIR COMMERCE. SEE, FOR EXAMPLE 49 U.S.C. 1354, 1421(A)(6); 14 C.F.R.
65.31, 91.87, 91.90. THE IDENTIFICATION OF ALL CAUSES OF SYSTEM ERRORS
IN AIR TRAFFIC CONTROLLER OPERATIONS IS A STATUTORY DUTY IMPOSED BY
CONGRESS ON THE AGENCY IN THE FURTHERANCE OF AIR SAFETY. PURSUANT TO
THAT DUTY, THE AGENCY PROMULGATED AND HAS FOLLOWED FOR MANY YEARS PRIOR
TO EXECUTIVE ORDER 11491, OR ITS PREDECESSOR EXECUTIVE ORDER 10988, AN
AIR TRAFFIC SYSTEM ERROR REPORTING PROGRAM (SEE, RES. EXH. 1).
SECTION 12(B) OF THE EXECUTIVE ORDER, RESERVED TO THE AGENCY THE
ABSOLUTE AND UNILATERAL RIGHT, INTER ALIA, TO MAINTAIN THE EFFICIENCY OF
THE GOVERNMENT OPERATIONS ENTRUSTED TO IT, INCLUDING PROMOTION OF AIR
SAFETY; TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE CONDUCTED; ETC., EXCEPT TO THE EXTENT THAT THE
ABSOLUTE AND UNILATERAL AUTHORITY OF THE AGENCY WAS SPECIFICALLY
RESTRICTED OR LIMITED BY THE PROVISIONS OF EXECUTIVE ORDER 11491, AS
AMENDED.
SECTION 10(E), IN RELEVANT PORTION /11/ , PROVIDES AS FOLLOWS:
"(E) WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION. . .THE LABOR ORGANIZATION SHALL BE GIVEN THE OPPORTUNITY TO
BE REPRESENTED AT FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OR
EMPLOYEE REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES, OR OTHER, MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT."
IT SEEMS PLAIN THAT AN INVESTIGATION OF A SYSTEM ERROR BY THE
FACILITY REVIEW BOARD DOES NOT INVOLVE "PERSONNEL POLICIES OR PRACTICES"
OR "MATTERS AFFECTING GENERAL WORKING CONDITIONS" AS THOSE TERMS ARE
USED IN SECTION 10(E). HOWEVER "FORMAL" THE PROCEDURE, "DISCUSSION" IN
CONNECTION THEREWITH, IN LABOR RELATIONS PARLANCE, HAS THE DEFINITE
CONNOTATION OF PROPOSING CHANGES IN WORKING CONDITIONS. THE FUNCTION OF
THE FACILITY REVIEW BOARD IS WHOLLY DIFFERENT. ITS FUNCTION IS TO
IDENTIFY CAUSES OF A SYSTEM ERROR. EVEN THOUGH THE IDENTIFICATION OF
CAUSES OF A SYSTEM ERROR MAY LEAD, AT SOME LATER POINT, TO "FORMAL
DISCUSSIONS", THE FACILITY REVIEW BOARD IS NOT A "FORMAL DISCUSSION"
PROCESS. TO THE CONTRARY, AS NOTED, THE FACILITY REVIEW BOARD HAS NO
AUTHORITY TO RECOMMEND ANY HUMAN CORRECTIVE ACTION; BUT PERFORMS A PURE
INVESTIGATIVE FUNCTION. BY THE SAME TOKEN, EVEN IF THE FACILITY REVIEW
BOARD WERE DEEMED A "FORMAL DISCUSSION", IT DOES NOT CONCERN GRIEVANCES,
AND, THERE BEING NO DISCIPLINE, THERE IS NO ACTION SUBJECT TO A
GRIEVANCE. THESE CONCLUSIONS ARE BORNE OUT BY THE DECISIONS CONSTRUING
SECTION 10(E).
THUS, IN DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR
NATIONAL GUARD, A/SLMR NO. 336 (1974), IT WAS CON TENDED THAT DENIAL OF
UNION REPRESENTATION AT "COUNSELLING SESSIONS" WAS VIOLATIVE OF SECTION
19(A)(1). IN FINDING THAT THERE WAS NO VIOLATION OF SECTION 19(A)(1)
THE ASSISTANT SECRETARY STATED:
". . . THE EVIDENCE DOES NOT ESTABLISH THAT THE 'COUNSELLING
SESSIONS' INVOLVED. . . WERE 'FORMAL DISCUSSIONS' CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR WORKING CONDITIONS WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER. THUS, THE SESSIONS INVOLVED DID
NOT RELATE TO THE PROCESSING OF A GRIEVANCE. MOREOVER, THE MATTERS
DISCUSSED AT THE SESSIONS DID NOT INVOLVE GENERAL WORKING CONDITIONS AND
WORK PERFORMANCES. RATHER, THEY WERE RELATED, RESPECTIVELY, TO AN
INDIVIDUAL EMPLOYEE'S ALLEGED SHORT-COMINGS WITH RESPECT TO ALLEGED
ABUSIVE LANGUAGE USED TO HIS SUPERVISOR, AND TO THE SAME EMPLOYEE'S
ALLEGED FAILURE TO FOLLOW A UNIFORM REQUIREMENT ON THE BASE. . . .
ACCORDINGLY, AS THE TWO INCIDENTS DID NOT CONSTITUTE 'FORMAL
DISCUSSIONS' IN WHICH THE EXCLUSIVE REPRESENTATIVE WAS ENTITLED TO BE
REPRESENTED BY VIRTUE OF SECTION 10(E) OF THE ORDER, IT FOLLOWS THAT THE
DENIAL OF REPRESENTATION AT THE COUNSELLING SESSIONS'. . .DID NOT
CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER." (A/SLMR NO.
336 AT PP. 3-4).
THE ABOVE CASE INVOLVED SPECIFIC INSTANCES OF ALLEGED, AND
IDENTIFIED, SHORT-COMINGS BY AN EMPLOYEE. BY CONTRAST, THE FUNCTION OF
THE FACILITY REVIEW BOARD IS ONE STEP FURTHER REMOVED, I.E., ITS SOLE
FUNCTION IS TO DETERMINE THE CAUSE OF A SYSTEM ERROR. AT THE TIME THE
FACILITY REVIEW BOARD FUNCTIONS NO EMPLOYEE "SHORT-COMING" HAS BEEN
IDENTIFIED. BUT MORE IMPORTANT, THE ASSISTANT SECRETARY, IN FOOTNOTE 8,
FURTHER STATED,
"IN MY VIEW, AN INDIVIDUAL EMPLOYEE IS NOT ENTITLED IN EVERY INSTANCE
TO HAVE HIS EXCLUSIVE REPRESENTATIVE PRESENT BECAUSE OF A CONCERN THAT A
MEETING MAY ULTIMATELY LEAD TO A GRIEVANCE OR 'ADVERSE ACTION.'"
U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY, FORT
JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, A/SLMR NO. 242
(1973), UNLIKE THE INSTANT CASE, INVOLVED A COLLECTIVE BARGAINING
AGREEMENT AND THE FINDING OF A SECTION 19(A)(1) VIOLATION IS WHOLLY
DISTINGUISHABLE; NEVERTHELESS, THE DECISION OF THE ASSISTANT SECRETARY
AS TO THE MEANING OF THE TERMS USED IN SECTION 10(E) IS INSTRUCTIVE.
THUS, THE ASSISTANT SECRETARY STATED:
". . .THE SEPTEMBER 23 MEETING CONSTITUTED A 'FORMAL' DISCUSSION
WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER AND THAT SUCH
DISCUSSION CLEARLY INVOLVED MATTERS RELATING TO 'PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT'. . . .AS THE SUBJECT OF THE MEETING RELATED TO
PERSONNEL POLICIES AND PRACTICES IN THE AREA OF EMPLOYEE SICK LEAVE
REQUIREMENTS, WHICH HAD RAMIFICATIONS FOR ALL UNIT EMPLOYEES, I FIND
THAT THE SEPTEMBER 23 DISCUSSION CLEARLY FELL WITHIN THE SCOPE OF
SECTION 10(E) OF THE ORDER. . . .PETERSON, BY REQUESTING A MEETING WITH
DAY. . .DREW THE LATTER'S ATTENTION TO THE FACT THAT HE, PETERSON, WAS
THE COMPLAINANT'S REPRESENTATIVE FOR PURPOSES OF ANY MEETING CONCERNING
THE SICK LEAVE LETTER. HOWEVER, DAY TOOK IT UPON HIMSELF TO HOLD THE
ABOVE-NOTED DISCUSSION DENYING PETERSON KNOWLEDGE OF ITS OCCURRENCE OR
ACCESS TO IT. IT IS BASED UPON THIS ASPECT OF SECTION 10(E) AND DAY'S
CONDUCT IN CALLING SUCH A MEETING WITHOUT GIVING THE COMPLAINANT AN
OPPORTUNITY TO BE REPRESENTED BY AN INDIVIDUAL OF ITS OWN CHOICE. .
.THAT I FIND RESPONDENT TO HAVE REFUSED IMPROPERLY TO CONSULT, CONFER,
OR NEGOTIATE. . .IN VIOLATION OF THE EXECUTIVE ORDER." (A/SLMR NO. 242
AT PP. 4, 5).
BY CONTRACT, THE INVESTIGATION OF A SYSTEM ERROR DOES NOT RELATE TO
"PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
WORKING CONDITIONS OF EMPLOYEES IN THE UNIT." THE PURPOSE OF THE
FACILITY REVIEW BOARD IS TO IDENTIFY CAUSES OF A SYSTEM ERROR, NOT TO
CHANGE OR TO MODIFY, OR OTHERWISE AFFECT, IN ANY MANNER PERSONNEL
POLICIES, PRACTICES OR OTHER MATTERS AFFECTING GENERAL WORKING
CONDITIONS. ANY CORRECTIVE ACTION, WHETHER INVOLVING PERSONNEL
POLICIES, PRACTICES, OR MATTERS AFFECTING GENERAL WORKING CONDITIONS,
MUST BE INITIATED BY THE FACILITY CHIEF IN A SEPARATE AND DISTINCT STEP.
CHARLESTON NAVAL SHIPYARD, CHARLESTON, SOUTH CAROLINA, A/SLMR NO.
340 (1973), INVOLVED REPRESENTATION AT AN INVESTIGATIVE DISCUSSION, BUT
FACTUALLY IS NOT IN POINT AS TO THE ISSUE DECIDED. ONE EMPLOYEE
OPERATING A PORTAL CRANE COLLIDED WITH A REACTOR ASSESS ENCLOSURE.
THERE WAS A PRELIMINARY INVESTIGATION AT THE SCENE OF THE ACCIDENT ON
THE DAY THAT IT HAPPENED. THE FOLLOWING DAY, THE EMPLOYEE WAS SENT A
NOTICE OF INVESTIGATIVE DISCUSSION AND REPLY DIRECTING HIM TO APPEAR
"FOR INVESTIGATIVE DISCUSSION WHICH COULD RESULT IN DISCIPLINARY ACTION
BEING TAKEN AGAINST YOU." THE EMPLOYEE WAS ADVISED OF HIS RIGHT TO BE
REPRESENTED IN ACCORDANCE WITH THE PROVISIONS OF THE APPLICABLE
COLLECTIVE BARGAINING CONTRACT. ANOTHER EMPLOYEE OPERATED A CRANE
WITHOUT A PILOT OR TRACK WALKER (FLAGMAN) AT THE FOOT OF THE CRANE WHILE
IT WAS IN MOTION. HE, LIKE THE OTHER EMPLOYEE, WAS GIVEN NOTICE TO
APPEAR FOR AN INVESTIGATIVE DISCUSSION. BOTH WERE ACCORDED THE RIGHT OF
REPRESENTATION AT THE "INVESTIGATIVE DISCUSSION" IN ACCORDANCE WITH THE
COLLECTIVE BARGAINING CONTRACT. THE ISSUE WAS WHETHER DENIAL OF
REPRESENTATION BY OTHER THAN DESIGNATED UNION OFFICIALS OR ANY EMPLOYEE
WAS A VIOLATION OF THE ACT. THE ASSISTANT SECRETARY HELD THAT IT WAS
NOT. HE HELD, IN PART, AS FOLLOWS:
". . .SECTION 7(D)(1) OF THE ORDER DOES NOT ESTABLISH RIGHTS WHICH
ARE ENFORCEABLE UNDER SECTION 19 OF THE ORDER. (A/SLMR NO. 304 AT P.
2).
ALTHOUGH THIS CASE MUST BE READ IN CONJUNCTION WITH TEXAS AIR
NATIONAL GUARD, SUPRA, AND FORT JACKSON LAUNDRY FACILITY, SUPRA, AND
FORT WAINWRIGHT, INFRA, AS RECOGNIZING THE EXISTENCE OF SECTION 10(E)
RIGHTS PRIOR TO THE INCEPTION OF A "GRIEVANCE", /12/ THE DECISION IS A
FURTHER HOLDING THAT UNION REPRESENTATION IS REQUIRED BY THE ORDER ONLY
WHEN THE CONDITIONS OF SECTION 10(E) GRANTING SUCH RIGHT ARE FULLY MET.
IT IS INTERESTING THAT WHERE AN INVESTIGATION OF AN ACCIDENT WAS
CONDUCTED ON THE DAY IT OCCURRED NO CONTENTION WAS MADE THAT
REPRESENTATION WAS REQUIRED AT SUCH INVESTIGATION, WHICH LIKE THE
INVESTIGATIONS CONDUCTED BY THE FACILITY REVIEW BOARD, WAS, WHOLLY, A
MATTER OF DETERMINING THE CAUSE OF THE ACCIDENT, OR AS IN THE PRESENT
CASE IN THE CAUSE OF THE SYSTEM ERROR SINCE, THANKFULLY, NO ACCIDENT
RESULTED THEREFROM.
U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL, FORT
WAINWRIGHT, ALASKA, A/SLMR NO. 278 (1973), LIKE CHARLESTON NAVAL
SHIPYARD, SUPRA, HELD THAT SECTION 7(D)(1) DOES NOT CREATE RIGHTS
ENFORCEABLE UNDER SECTION 9 OF THE ORDER. FORT WAINWRIGHT CONCERNED A
MEETING HELD BY THE AGENCY REGARDING THE IMPLEMENTATION OF A DECISION BY
A U.S. CIVIL SERVICE COMMISSION HEARING EXAMINER WHICH MEETING WAS FOUND
TO CONSTITUTE A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E).
THE ASSISTANT SECRETARY HELD, IN PART,
". . .AGENCY CONDUCT DENYING THE RIGHT OF UNIT EMPLOYEES TO BE
REPRESENTED BY THEIR EXCLUSIVE REPRESENTATIVE, VIOLATES SECTION 19(A)(1)
OF THE ORDER." (A/SLMR NO. 278 AT P. 3).
TO SUMMARIZE, THE AGENCY UNDER SECTION 12(B) OF THE EXECUTIVE ORDER
HAD THE RIGHT, SUBJECT ONLY TO THE SPECIFIC ORDER, AND SPECIFICALLY IN
THIS CASE BY SECTION 10(E), TO CONDUCT INVESTIGATIONS TO DETERMINE THE
CAUSE OF SYSTEM ERRORS IN FURTHERANCE OF ITS STATUTORY DUTY TO PROMOTE
SAFETY OF AIR TRANSPORTATION. SECTION 10(E) OF THE EXECUTIVE ORDER
ACCORDS LABOR ORGANIZATIONS THE RIGHT TO BE REPRESENTED AT FORMAL
DISCUSSIONS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE
UNIT. THE INVESTIGATION BY THE FACILITY REVIEW BOARD OF THE SYSTEM
ERROR OF FEBRUARY 23, 1973, WAS NOT A "FORMAL DISCUSSION" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER; AND ITS INVESTIGATION DID NOT
CONCERN A GRIEVANCE, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS
AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
ACCORDINGLY, COMPLAINANT HAD NO INHERENT RIGHT UNDER SECTION 10(E) OF
THE EXECUTIVE ORDER TO BE REPRESENTED IN PROCEEDINGS BEFORE THE FACILITY
REVIEW BOARD. THEREFORE, THE DENIAL OF THE REQUEST BY HARRY O. HICKS
FOR UNION REPRESENTATION WHILE HE WAS APPEARING BEFORE THE FACILITY
REVIEW BOARD AND/OR THE DENIAL OF THE REQUEST OF PATCO TO REPRESENT
HARRY O. HICKS WHILE APPEARING BEFORE THE FACILITY REVIEW WAS NOT A
VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
THE EXECUTIVE ORDER IS NOT THE SAME AS THE LABOR MANAGEMENT RELATIONS
ACT (NLRA) AND THE RIGHTS ACCORDED UNDER THE EXECUTIVE ORDER ARE NOT AS
BROAD AS THE RIGHTS UNDER NLRA. BUT EVEN UNDER THE NLRA, DENIAL OF
REPRESENTATION IS AN INVESTIGATIVE PROCEDURE WHERE THERE IS NO AUTHORITY
AT THE INVESTIGATORY STAGE TO RECOMMEND DISCIPLINE, WOULD NOT CONSTITUTE
AN UNFAIR LABOR PRACTICE. WESTERN ELECTRIC COMPANY, 198 NLRB NO. 82, 80
LRRM 1705 (1972); LAFAYETTE RADIO ELECTRONICS CORP., 194 NLRB NO. 77,
78 LRRM 1693 (1971); ILLINOIS BELL TELEPHONE COMPANY, 192 NLRB NO. 138,
78 LRRM 1109 (1971); CHEVRON OIL COMPANY, 168 NLRB NO. 84, 66 LRRM 1353
(1967).
IN CHEVRON OIL COMPANY, SUPRA, THE EMPLOYER INTERVIEWED EMPLOYEES
PRIOR TO ARRIVING AT A DECISION ON WHETHER DISCIPLINARY ACTION WAS
WARRANTED. THE EMPLOYER, UNDER ESTABLISHED PROCEDURES, LACKED THE
AUTHORITY TO DISCIPLINE EMPLOYEES AT THESE FACT-FINDING MEETINGS. THE
BOARD HELD THAT EXCLUSION OF THE UNION STEWARD FROM THESE INTERVIEWS WAS
LAWFUL. APPLYING THIS RATIONALE TO THE INSTANT CASE, DENIAL OF
REPRESENTATION BEFORE THE FACILITY REVIEW BOARD WAS LAWFUL BECAUSE,
UNDER ESTABLISHED PROCEDURES, IT LACKED AUTHORITY TO DISCIPLINE
EMPLOYEES. LIKE REASONING WAS APPLIED IN ILLINOIS BELL TELEPHONE
COMPANY, SUPRA. IN LAFAYETTE RADIO ELECTRONIC, SUPRA, THE RATIONALE WAS
THAT DENIAL OF UNION REPRESENTATION IN INVESTIGATORY INTERVIEWS IS
LAWFUL BECAUSE THE INTERROGATIONS (THEFT OF COMPANY PROPERTY) WERE PART
OF AN INVESTIGATION AND THE EMPLOYER DID NOT THEREBY DEAL WITH EMPLOYEES
ABOUT TENURE AND CONDITIONS OF EMPLOYMENT. FINALLY, IN WESTERN ELECTRIC
COMPANY, SUPRA, THE BOARD HELD EVEN MORE BROADLY THAT DENIAL OF UNION
REPRESENTATION DURING INVESTIGATORY INTERVIEWS DOES NOT VIOLATE SECTION
8(A)(5).
THREE DECISIONS OF THE NLRB HAVE BEEN TO THE CONTRARY. FIRST,
TEXACO, INC., 168 NLRB NO. 49, 66 LRRM 1296 (1967), ENF'T DENIED, 408
F.2D 142, 70 LRRM 3045 (5TH CIR. 1969), REH'G DENIED, 2D . . ., 71 LRRM
2320 (5TH CIR. 1969). MOREOVER, IN WESTERN ELECTRIC COMPANY, SUPRA, THE
BOARD SPECIFICALLY REFERRED TO TEXACO, INC. AND STATED THAT SUCH ISSUE
"HAS BEEN CONSIDERED AND REJECTED BY THIS BOARD IN A NUMBER OF INSTANCES
SINCE OUR EARLIER DECISION IN THE TEXACO CASE." SEE, ALSO,
JACOBE-PEARSON FORD, INC., 172 NLRB NO. 84, 68 LRRM 1305 (1968);
TEXACO, INC., LAS ANGELES SALES TERMINAL, 179 NLRB 976, 72 LRRM 1596
(1969).
SECOND, MOBILE OIL CORPORATION, 196 NLRB NO. 144, 80 LRRM 2823 (7TH
CIR. 1973). IN ITS DECISION DENYING ENFORCEMENT, THE COURT STATED, IN
PART, AS FOLLOWS:
". . .NOR DOES THE TEXT SUGGEST THE SOURCE OF THE BOARD'S VIEW THAT
THE RIGHT OF REPRESENTATION DEPENDS ON WHETHER THE EMPLOYEE HAS ANY
REASONABLE BASIS FOR BELIEVING THAT HIS JOB IS IN JEOPARDY. THE
CAREFULLY TAILORED LIMITATIONS OF THIS PROCEDURAL RIGHT WERE DESIGNED BY
THE BOARD, NOT BY ANY STATUTORY MANDATE.
"A FAIR INTERPRETATION OF THE BROAD PURPOSE AND LANGUAGE OF SEC. 7
PERSUADES US THAT THE NOVEL 'RIGHT TO REPRESENTATION' RECOGNIZED BY THE
BOARD IN THIS CASE IS NOT A 'CONCERTED ACTIVITY' WITHIN THE MEANING OF
THE ACT. THIS CONCLUSION IS SUPPORTED BY PRECEDENT, NLRB V. ROSS GEAR &
TOOL CO., 158 F.2D 607, 19 LRRM 2190 (7TH CIR. 1947); TEXACO, INC. V.
NLRB, 408 F.2D 142, 70 LRRM 3045 (5TH CIR. 1969); AND BY HISTORY. . ."
(83 LRRM AT 2827).
THE COMMENT OF THE COURT WITH RESPECT TO FEAR THAT AN INVESTIGATION
MAY RESULT IN ADVERSE ACTION, EMPHASIZES THE CORRECTNESS OF THE
ASSISTANT SECRETARY'S STATEMENT IN FOOTNOTE 8 OF HIS DECISION IN TEXAS
AIR NATIONAL GUARD, A/SLMR NO. 336 (1974).
THIRD, QUALITY MANUFACTURING COMPANY, 195 NLRB NO. 42, 79 LRRM 1269
(1972), ENF'T DENIED, IN PART AND GRT'D IN PART, 481 F.2D 1018 (4TH CIR.
1973), CERT. GRANTED. U.S. . . ., 42 U.S.LAW WEEK 3610 (1974).
BECAUSE CERTIORARI HAS BEEN GRANTED IN THIS CASE A BRIEF REVIEW OF THE
FACTS AND THE DECISION OF THE BOARD AND OF THE COURT IS APPROPRIATE
SINCE, AS WILL APPEAR FROM SUCH REVIEW, THIS CASE IS WHOLLY DISSIMILAR
FROM THE INSTANT CASE. ON FRIDAY, OCTOBER 10, 1969, THE UNION
CHAIRLADY, MULFORD, AND TWO OTHER EMPLOYEES, INCLUDING EMPLOYEE KING,
MET WITH THE COMPANY ABOUT THE INABILITY TO EARN A SATISFACTORY WAGE
UNDER THE PIECE RATE THEN IN EFFECT. NO SOLUTION WAS REACHED. LATER
THAT DAY, EMPLOYEE KING SHUT DOWN HER MACHINE AND WAS CAUSING A MINOR
DISTURBANCE. TWO OTHER EMPLOYEES STOPPED THEIR MACHINE TO WATCH. A
SUPERVISOR ORDERED KING TO RESUME WORK. KING RESPONDED WITH A FLIPPANT
REMARK AND THE SUPERVISOR ORDERED KING TO GO TO THE PRESIDENT'S OFFICE.
KING COMPLIED, BUT ENROUTE ASKED MULFORD, THE UNION CHAIRLADY, TO
ACCOMPANY HER. MULFORD LEFT HER WORK AND WENT TO THE ANTEROOM OF THE
PRESIDENT'S OFFICE WHERE THE PRESIDENT TOLD MULFORD TO RETURN TO WORK.
MULFORD REFUSED. KING REFUSED TO GO INTO THE PRESIDENT'S OFFICE WITHOUT
MULFORD. THE PRESIDENT THEN DIRECTED BOTH MULFORD AND KING TO RETURN TO
THEIR WORK STATIONS AND THEY DID SO. ON SUNDAY, MULFORD WAS SUSPENDED
FOR TWO DAYS. THE FOLLOWING WEEK SIMILAR CONFRONTATIONS OCCURRED WITH
ASSISTANT CHAIRLADY COCHRAN SEEKING TO REPRESENT KING. THE ULTIMATE
RESULT WAS SUSPENSION OF COCHRAN, DISCHARGE OF MULFORD AND KING AND,
WHEN COCHRAN ATTEMPTED TO FILE GRIEVANCES ON BEHALF OF MULFORD, KING AND
HERSELF, WAS DISCHARGED. THE BOARD HELD THAT THE COMPANY VIOLATED
SECTIONS 8(A)(3) AND (1) UPON A FINDING THAT COCHRAN WAS DISCHARGED
BECAUSE SHE SOUGHT TO ENGAGE IN A PROTECTED UNION ACTIVITY, I.E., FILING
GRIEVANCES; THAT THE COMPANY VIOLATED SECTION 8(A)(1) BY DISCHARGING
KING BECAUSE OF HER INSISTANCE ON UNION REPRESENTATION WHEN SUMMONED TO
AN INTERVIEW AT WHICH SHE HAD "REASONABLE GROUNDS TO BELIEVE THAT
DISCIPLINARY ACTION MIGHT RESULT FROM THE EMPLOYER'S INVESTIGATION OF
HER CONDUCT," AND BY SUSPENDING AND DISCHARGING CHAIRLADY MULFORD AND
SUSPENDING ASSISTANT CHAIRLADY COCHRAN BECAUSE THEY SOUGHT TO REPRESENT
KING AT SUCH AN INTERVIEW.
THE FOURTH CIRCUIT GRANTED ENFORCEMENT OF THAT PORTION OF THE BOARD'S
ORDER RELATING TO THE ILLEGAL DISCHARGE OF COCHRAN BUT DENIED
ENFORCEMENT OF THE REMAINDER OF THE BOARD'S ORDER. THE COURT STATED, IN
PART, AS FOLLOWS:
". . .EVERY SITUATION WHEREIN AN EMPLOYEE IS DIRECTED BY MANAGEMENT
TO COOPERATE IN AN INVESTIGATORY INTERVIEW CARRIES THE IMPLICIT THREAT
OF DISCIPLINE. . .THE BOARD HAS MANY TIMES BEEN CONFRONTED WITH AN
ALLEGED VIOLATION OF SECTION 8(A)(1) IN THE CONTEXT OF A DENIAL OF UNION
REPRESENTATION AT EMPLOYER-EMPLOYEE INTERVIEWS. BY NECESSARY
IMPLICATION, SECTION 7 RIGHTS HAVE BEEN AT ISSUE IN EACH OF THESE CASES.
YET NEVER HAS IT BEEN THOUGHT, AS THE BOARD WOULD HOLD HERE, THAT SUCH
RIGHTS REQUIRE AN EMPLOYER TO PERMIT AN EMPLOYEE TO HAVE A UNION
REPRESENTATIVE PRESENT WHENEVER THE EMPLOYEE 'HAS REASONABLE GROUND TO
FEAR THAT THE INTERVIEW WILL ADVERSELY AFFECT HIS CONTINUED EMPLOYEMENT,
OR EVEN HIS WORKING CONDITIONS.' . . .
"IT IS CLEAR BEYOND QUESTION, HOWEVER, THAT THE BOARD HAS NO POWER TO
ALTER OR REARRANGE EMPLOYER-EMPLOYEE RELATIONS TO SUIT ITS VERY WHIM.
RATHER, THE BOARD CAN ONLY DETERMINE WHETHER THE ACT HAS BEEN VIOLATED.
AND IT WOULD APPEAR THAT IN THE ENTIRE HISTORY OF THE LAW AS DEVELOPED
ABOVE, THE MANAGEMENT PREROGATIVE OF CONDUCTING IN INVESTIGATORY
INTERVIEW, SUCH AS QUALITY ATTEMPTED HERE, HAS NOT BEE CONSIDERED A
VIOLATION OF THE ACT. . ." (83 IRRM AT 2822-2823).
THE INTERVIEW INVOLVED IN QUALITY WAS NOT MERELY INVESTIGATORY; THE
PRESIDENT, WHO SOUGHT TO CONDUCT THE PRIVATE INTERVIEW, HAD THE POWER TO
DISCIPLINE IN THAT PROCEDURE. ACCORDINGLY, QUALITY IS NOT FACTUALLY
COMPARABLE TO INVESTIGATORY PROCEEDINGS CONFINED TO ASCERTAINING FACTS
WITHOUT AUTHORITY TO DISCIPLINE. CONSEQUENTLY, IT IS QUESTIONABLE THAT
THE DECISION OF THE SUPREME COURT IN QUALITY, SET FOR ARGUMENT AT TERM
OF COURT BEGINNING IN OCTOBER 1974, WILL CHANGE THE PARALLEL LINE OF
DECISIONS REPRESENTED BY CHEVRON OIL COMPANY, SUPRA, AND RELATED CASES
CITED ABOVE, DEALING WITH PURE FACT FINDING.
THE DECISIONS OF THE NLRB UNIFORMLY HOLD, NOTWITHSTANDING THE NEW AND
NOVEL CONTENTION OF "APPREHENSION" IN MOBILE AND QUALITY (REJECTED,
HOWEVER, BY BOTH THE SEVENTH AND FOURTH CIRCUITS), THAT WHERE THE
INVESTIGATION IS FACT FINDING AND WITHOUT AUTHORITY AT THE INVESTIGATORY
STAGE TO IMPOSE DISCIPLINE, DENIAL OF UNION REPRESENTATION IS NOT AN
UNFAIR LABOR PRACTICE.
DENIAL OF REPRESENTATION BEFORE THE FACILITY REVIEW BOARD EVEN IF THE
BROADER RIGHTS OF SECTION 7 OF NLRA APPLIED, WHICH, OF COURSE, IS NOT
THE CASE, WOULD, NEVERTHELESS, NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
A FORTIORI, DENIAL OF REPRESENTATION BEFORE THE FACILITY REVIEW BOARD
UNDER THE APPLICABLE TERMS OF THE EXECUTIVE ORDER WAS NOT A VIOLATION OF
SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
THE SINGLE VIOLATION ALLEGED IN THIS PROCEEDING IS THAT THE AGENCY
VIOLATED SECTION 19(A)(1) BY DENYING REPRESENTATION TO A MEMBER OF THE
BARGAINING UNIT WHILE APPEARING BEFORE A FACILITY REVIEW BOARD. THE
DECISION OF THE FACILITY CHIEF, MR. HAYTER, TO IMPOSE DISCIPLINE WAS
SEPARATE AND APART FROM THE INVESTIGATION BY THE FACILITY REVIEW BOARD
WHICH HAD NO AUTHORITY TO RECOMMEND ANY HUMAN CORRECTIVE ACTION. THE
DISCIPLINE IMPOSED ON MR. HICKS WAS GRIEVABLE UNDER THE AGENCY'S
UNILATERAL PROCEDURE. EVEN IF DENIAL OF REPRESENTATION CONSTITUTED A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER, JURISDICTION TO REMEDY SUCH
VIOLATION COULD REACH ONLY THAT VIOLATION-NOT THE MERITS OF THE
DISCIPLINE WHICH WAS SUBJECT TO CHALLENGE AND REVIEW UNDER AN
ESTABLISHED PROCEDURE. THEREFORE, THE MAXIMUM REMEDY PERMISSIBLE IN
THIS PROCEEDING WOULD BE AN ORDER DIRECTING THE AGENCY TO CEASE AND
DESIST FROM DENYING, UPON REQUEST, SUCH REPRESENTATION. SUCH ORDER
WOULD, NECESSARILY, OPERATE ONLY IN THE FUTURE. SEE, FOR EXAMPLE, FORT
JACKSON LAUNDRY FACILITY, A/SLMR NO. 242 (1973).
ON JUNE 20, 1973, THE AGENCY UNILATERALLY ISSUED THE FOLLOWING
GENERAL NOTICE TO ALL ATC FACILITIES:
". . .EFFECTIVE IMMEDIATELY AN EMPLOYEE IN AN ALLEGED SYSTEM ERROR
MAY IF HE REQUESTS BE ASSISTED BY AN APPROPRIATE UNION REPRESENTATIVE
WHILE LISTENING TO THE TAPES/PREPARING A STATEMENT OR APPEARING BEFORE A
SYSTEM ERROR REVIEW BOARD. AT FACILITIES WHERE NO EXCLUSIVE RECOGNITION
EXISTS OR WHERE THERE IS NO RECOGNIZED UNION REPRESENTATIVE THE EMPLOYEE
INVOLVED MAY BE ASSISTED BY A FELLOW EMPLOYEE, IF HE SO REQUESTS. THE
ROLE OF THE EMPLOYEE'S REPRESENTATIVE WILL BE LIMITED TO ASSISTING THE
EMPLOYEE WITHIN THE CONTEXT OF THE ESTABLISHED REVIEW BOARD. THE
REPRESENTATIVE WILL BE PRESENT ONLY WHILE THE EMPLOYEE IS APPEARING."
(COMP. EXH. 1).
THE AGENCY HAS CHANGED ITS OWN FACILITY REVIEW BOARD PROCEDURE TO
PROVIDE THE VERY RELIEF COMPLAINANT SEEKS IN THIS PROCEEDING. INDEED,
THE AGENCY HAS GONE WELL BEYOND THE RELIEF SOUGHT HEREIN. THE ACTION OF
THE AGENCY HAS, THUS, RENDERED MOOT FURTHER PROCEEDINGS IN THIS MATTER
AND THE COMPLAINT SHOULD, FOR THAT REASON ALONE, BE DISMISSED.
NEITHER PARTY HAS ADDRESSED ITSELF TO THE MOOTNESS ISSUE. NO ISSUE
HAS BEEN RAISED, AND NO DECISION IS MADE, CONCERNING THE EFFECT OF
POSSIBLE UNILATERAL WITHDRAWAL OF THE RIGHTS UNILATERALLY GRANTED BY THE
GENERAL NOTICE OF JUNE 20, 1973, EXCEPT TO NOTE THAT ANY CHANGE IN
ESTABLISHED CONDITIONS MAY INVOKE THE PROVISIONS OF SECTION 19(A)(6).
TO REPEAT, NO SUCH ISSUE IS BEFORE ME FOR DECISION AND NO DECISION IS
MADE, OR IS TO BE INFERRED, AS TO ANY SUCH ISSUE.
HAVING FOUND THAT DENIAL OF REPRESENTATION BEFORE THE FACILITY REVIEW
BOARD WAS NOT A VIOLATION OF SECTION 19(A)(1) OF EXECUTIVE ORDER 11491,
AS AMENDED, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
ENTIRETY.
ALTERNATIVELY, AS THE ACTION OF RESPONDENT ON JUNE 20, 1973, IN
CHANGING ITS POLICY TO PERMIT, INTER ALIA, REPRESENTATION BEFORE
FACILITY REVIEW BOARDS, HAS PROVIDED THE MAXIMUM RELIEF SOUGHT HEREIN,
SAID ACTION HAS RENDERED FURTHER PROCEEDING IN THIS MATTER MOOT, WHETHER
OR NOT A VIOLATION OF SECTION 19(A)(1) OCCURRED ON FEBRUARY 26, 1973,
AND, FOR THIS REASON ALONE, I RECOMMEND THAT THE COMPLAINT HEREIN BE
DISMISSED IN ITS ENTIRETY.
DATED JULY 16, 1974
WASHINGTON, D.C.
/1/ MR. REAZIN'S LETTER TO THE AREA ADMINISTRATOR, DATED MAY 4, 1973,
(ASS'T. SEC. EXH. 1(A), EXH. A, ATTACHMENT 1) STATES THAT THE DATE OF
CERTIFICATION WAS OCTOBER 20, 1972. THE DATE OF CERTIFICATION IS NOT IN
ISSUE. ACCORDINGLY, AS BOTH MESSRS. REAZIN AND EMBREY INDICATED AN
AUGUST, 1972, DATE AS THE DATE OF CERTIFICATION (TR. 12), AUGUST 26,
1972, IS ASSUMED FOR PRESENT PURPOSES TO BE CORRECT.
/2/ NOT EXPLAINED ON THE RECORD; BUT STATED IN COMPLAINANT'S BRIEF,
AT P. 2, TO HAVE INVOLVED AN IMPERMISSIBLE SEPARATION BETWEEN TWO
AIRPLANES.
/3/ THIS CANCELLED ORDER OA 8020.3, DATED OCTOBER 29, 1963.
/4/ THE FOLLOWING APPEARS ON LINE 2 OF THE TEXT OF RESPONDENT'S
EXHIBIT 2, "CNL 1 SEP 73." (SEE, ALSO ASS'T. SEC. EXH. 1(A) EXH. B,
ATTACHMENT 1). THE TESTIMONY OF ALL PARTIES, AS WELL AS MR. STUART A.
HAYTER'S LETTER TO THE AREA ADMINISTRATOR, DATED JUNE 1, 1973 (ASS'T.
SEC. EXH. 1(A), EXHIBIT D AT P. 2), CONCLUSIVELY ESTABLISHES IN THIS
PROCEEDING THAT THE AMENDMENT WAS DEEMED BY ALL PARTIES HERETO AS
EFFECTIVE FEBRUARY 1, 1973, AND THE QUOTED PHRASE WILL BE DISREGARDED
FOR ALL PURPOSES HEREIN, AND NO DETERMINATION OF THE MEANING OF, OR
EXPLANATION FOR, THE PHRASE IS TO BE IMPLIED.
/5/ THE LETTER ON ITS FACE, WENT WELL BEYOND THE ALLEGATIONS OF THE
COMPLAINT AND THE TESTIMONY OF MESSRS. HICKS AND FISCHER IN SUPPORT OF
THE MORE LIMITED ALLEGATIONS OF THE COMPLAINT. FOR THE PURPOSES OF THIS
PROCEEDING, THE REQUEST WILL BE ASSUMED, AS ALLEGED IN THE COMPLAINT AND
TESTIMONY, TO HAVE BEEN MERELY A REQUEST FOR REPRESENTATION WHILE
APPEARING BEFORE THE FACILITY REVIEW BOARD. NO EVIDENCE OR TESTIMONY
WAS PRESENTED WITH REGARD TO ANY OTHER, OR BROADER, REQUEST.
/6/ SEE, ASS'T. SEC. EXH. 1(A), EXHIBIT C, ATTACHMENT 5.
/7/ THE REPORT OF THE FACILITY REVIEW BOARD DOES NOT IDENTIFY
INDIVIDUALS BY NAME BUT ONLY BY A KEY CODE.
/8/ NEITHER THE DATE OF THE REPORT NOR THE DATE OF THE DISCIPLINARY
ACTION TAKEN WITH RESPECT TO MR. HICKS WAS DISCLOSED AT THE HEARING.
MR. HICKS TESTIFIED ONLY THAT "AFTER THE REVIEW BOARD, MY STATUS
REMAINED MORE OR LESS IN LIMBO FOR A CONSIDERABLE PERIOD OF TIME. I DO
NOT REMEMBER THAT EXACT LENGTH OF TIME, BUT IT WAS A TIME SUFFICIENT
THAT A CONTROLLER WOULD LOSE HIS PROFICIENCY; WHATEVER PROFICIENCY HE
MIGHT HAVE HAD." (TR. 20-21). THE DATE OF MR. HAYTER'S ACTION, BUT NOT
THE DATE OF THE FACILITY REVIEW BOARD'S REPORT, IS STATED IN MR.
REAZIN'S LETTER OF MAY 4, 1973, TO THE AREA ADMINISTRATOR (ASS'T. SEC.
EXH. 1(A), EXHIBIT A, ATTACHMENT 1) AS MARCH 16, 1973.
/9/ CF., ASS'T. SEC. EXH. 1(A), EXHIBIT A, ATTACHMENT 1; SEE, ALOS,
ASS'T. SEC. EXH. 1(A), EXHIBIT C, ATTACHMENT 5.
/10/ RESPONDENT'S EXHIBIT 4 WAS RECEIVED OVER THE OBJECTION OF
COMPLAINANT AND COMPLAINANT'S EXHIBIT 1 WAS RECEIVED OVER THE OBJECTION
OF RESPONDENT. IT IS TRUE, OF COURSE, THAT BOTH EXHIBITS INVOLVED, OR
LED TO, DIRECTLY OR INDIRECTLY, EVIDENCE OF AN EVENT AFTER THE DATE OF
THE ALLEGED UNFAIR LABOR PRACTICE; HOWEVER, NEITHER EXHIBIT WAS
RECEIVED TO ESTABLISH, NOR COULD EITHER CONSTITUTE EVIDENCE OF, AN
UNFAIR LABOR PRACTICE PRIOR TO THE DATE THEREOF. RESPONDENT'S EXHIBIT
4, AS OF FEBRUARY 26, 1973, ESTABLISHES ONLY THAT AS OF THE DATE PATCO
HAD REQUESTED A PROVISION AFFIRMING ITS RIGHT TO PARTICIPATE IN
"INCIDENT" INVESTIGATION AND THAT RESPONDENT HAD NOT, AS OF FEBRUARY 26,
1973, AGREED TO THE PROPOSAL. TO SUPPORT RESPONDENT'S ASSERTION ". .
.THAT THE COMPLAINANT IS ATTEMPTING TO ACCOMPLISH BY THE UNFAIR LABOR
PRACTICE ROUTE, THAT WHICH IT WAS UNABLE TO ACCOMPLISH BY COLLECTIVE
BARGAINING PROCESS," REFERENCE WOULD HAVE TO BE MADE TO THE FACT THAT A
CONTRACT WAS SIGNED ON APRIL 4, 1973, WITHOUT SUCH A PROVISION.
ACCORDINGLY, THE RULING RECEIVING RESPONDENT'S EXHIBIT 4, IS REAFFIRMED
BUT ONLY FOR THE PURPOSE OF SHOWING THAT, AS OF FEBRUARY 26, 1973, THE
UNION CONTRACT PROPOSAL IN QUESTION WAS THE SUBJECT OF ONGOING
COLLECTIVE BARGAINING.
COMPLAINANT'S EXHIBIT 1, BECAUSE IT WAS ISSUED ON JUNE 20, 1973, LONG
AFTER THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE, WAS NOT
RECEIVED, NOR WILL IT BE CONSIDERED, AS EVIDENCE OF THE OCCURRENCE OF AN
UNFAIR LABOR PRACTICE ON FEBRUARY 26, 1973. THE RULING RECEIVING
COMPLAINANT'S EXHIBIT 1 IS REAFFIRMED, HOWEVER, FOR THE REASONS THAT THE
AGENCY ACTION OF JUNE 10, 1973, WOULD APPEAR, AS HEREINAFTER DISCUSSED,
TO HAVE RENDERED MOOT THE INSTANT PROCEEDING. COMPLAINANT'S EXHIBIT 1
WAS NOT RECEIVED, AND WILL NOT BE CONSIDERED, AS EVIDENCE, AS ASSERTED
BY COMPLAINANT, THAT AN UNFAIR LABOR PRACTICE WAS COMMITTED ON FEBRUARY
26, 1973.
RESPONDENT'S CONTENTION THAT COMPLAINANT'S EXHIBIT 1 MUST BE REJECTED
BECAUSE IT WAS A "SETTLEMENT AGREEMENT" OF THIS AND OTHER PENDING UNFAIR
LABOR PRACTICE CHARGES IS WITHOUT MERIT, AS NOTED, THE EXHIBIT WAS NOT
RECEIVED, NOR WILL IT BE CONSIDERED, AS EVIDENCE OF THE COMMISSION OF AN
UNFAIR LABOR PRACTICE. ASSUMING, BUT WITHOUT DECIDING THAT THE CHANGE
IN POLICY REFLECTED BY COMPLAINANT'S EXHIBIT 1 WAS A SETTLEMENT, RECEIPT
OF THE EXHIBIT WAS, NEVERTHELESS, PROPER AND NECESSARY UNDER THE
CIRCUMSTANCES, TO DETERMINE WHETHER THE ACTION TAKEN HAS, OR HAS NOT,
RENDERED FURTHER PROCEEDINGS HEREIN MOOT.
/11/ THIS CASE DOES NOT INVOLVE ANY ISSUE CONCERNING THE
BARGAINABILITY OF ANY DEMAND, INCLUDING BARGAINABILITY OF A DEMAND BY
PATCO FOR PARTICIPATION IN "INCIDENT" INVESTIGATION. TO THE CONTRARY,
THE RECORD SHOWS THAT THE PARTIES, IN FACT, BARGAINED ABOUT PATCO'S
DEMAND (RES. EXH. 4). BECAUSE NO ISSUE OF BARGAINABILITY IS INVOLVED
HEREIN, NO OPINION IS EXPRESSED, OR INTENDED, CONCERNING THE SCOPE OF
BARGAINING.
/12/ " . . . A REQUEST BY AN EMPLOYEE, OR BY A GROUP OF EMPLOYEES
ACTING AS INDIVIDUALS, FOR PERSONAL RELIEF IN A MATTER OF CONCERN OR
DISSATISFACTION WHICH IS SUBJECT TO CONTROL OF AGENCY MANAGEMENT."
FEDERAL PERSONNEL MANAGEMENT CHAPTER 771, INST. 154, MAY 25, 1971, SUB.
CH. 1, PAR. 1-2(7).
4 A/SLMR 428; P. 567; CASE NO. 30-5468(CU); SEPTEMBER 30, 1974.
U.S. DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
PLUM ISLAND ANIMAL DISEASE CENTER
A/SLMR NO. 428
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, PLUM
ISLAND ANIMAL DISEASE CENTER, SEEKING CLARIFICATION OF THE STATUS OF
THREE EMPLOYEE CLASSIFICATIONS. THE UNIT INVOLVED CURRENTLY IS
REPRESENTED BY LOCAL 1940, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE). CONTRARY TO THE VIEW OF THE ACTIVITY, THE AFGE
CONTENDED THAT THE EMPLOYEES CLASSIFIED AS SECRETARY TO THE ACTIVITY'S
DIRECTOR, SECRETARY TO THE CHIEF, ENGINEERING AND PLAN MANAGEMENT GROUP,
AND CLERK-TYPIST FOR THE ADMINISTRATIVE OFFICER, SHOULD BE INCLUDED IN
THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE SECRETARIES TO THE ACTIVITY'S
DIRECTOR AND CHIEF, ENGINEERING AND PLAN MANAGEMENT GROUP WERE
CONFIDENTIAL EMPLOYEES. IN THIS RESPECT, IT WAS NOTED THAT THE
SECRETARY TO THE ACTIVITY'S DIRECTOR ATTENDS STAFF MEETINGS AT WHICH
LABOR RELATIONS POLICIES ARE DISCUSSED, PREPARES AND TYPES MEMORANDA OF
THESE MEETINGS AND CORRESPONDENCE CONCERNING LABOR RELATIONS POLICY, AND
HAS ACCESS, NOT NORMALLY GRANTED TO OTHER MEMBERS OF THE BARGAINING
UNIT, TO PERSONNEL FILES OF BARGAINING UNIT MEMBERS. WITH REGARD TO THE
SECRETARY TO THE CHIEF, ENGINEERING AND PLAN MANAGEMENT GROUP, IT WAS
NOTED THAT THE INCUMBENT PREPARES CORRESPONDENCE, MEMORANDA AND REPORTS
IN CONNECTION WITH GRIEVANCES AND NEGOTIATIONS AND HAS ACCESS TO CERTAIN
INFORMATION CONCERNING GRIEVANCES, WAGE SURVEYS AND REPORTS WHICH
PERTAINS TO LABOR-MANAGEMENT RELATIONS AND WHICH ARE NOT AVAILABLE TO
THE AFGE OR TO MEMBERS OF THE BARGAINING UNIT. ALSO NOTED WAS THE FACT
THAT HER IMMEDIATE SUPERVISOR, THE CHIEF, ENGINEERING AND PLAN
MANAGEMENT GROUP, IN ADDITION TO SUPERVISING OR DIRECTING MORE THAN HALF
OF THE EMPLOYEES IN THE BARGAINING UNIT, IS RESPONSIBLE FOR THE FORMAL
AND INFORMAL PROCESSING OF GRIEVANCES UNDER THE ACTIVITY'S GRIEVANCE
PROCEDURE, PREPARES INVESTIGATIVE REPORTS IN CONNECTION WITH GRIEVANCES,
IS A MEMBER OF THE ACTIVITY'S NEGOTIATING TEAM, AND PREPARES
CONFIDENTIAL WAGE REPORTS AND SURVEYS TO BE USED BY MANAGEMENT IN
FORMULATING ITS POSITION FOR NEGOTIATIONS.
THE ASSISTANT SECRETARY FURTHER FOUND THAT THE CLERK-TYPIST WHO
PERFORMS ADMINISTRATIVE SERVICES FOR BOTH THE ADMINISTRATIVE OFFICER AND
THE OFFICE SERVICES MANAGER WAS NOT ACTING IN A CONFIDENTIAL CAPACITY TO
PERSONS WHO FORMULATE AND EFFECTUATE POLICIES IN THE FIELD OF LABOR
RELATIONS AND SHOULD BE INCLUDED WITHIN THE BARGAINING UNIT. IN THIS
REGARD, HE NOTED THAT MERE ACCESS TO PERSONNEL OR STATISTICAL
INFORMATION WOULD NOT BE DEEMED SUFFICIENT TO ESTABLISH THAT AN EMPLOYEE
IS SERVING IN A CONFIDENTIAL CAPACITY UNDER THE ORDER.
U.S. DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
PLUM ISLAND ANIMAL DISEASE CENTER
AND
LOCAL 1940, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ADAM J. CONTI.
THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, U.S. DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH
SERVICE, PLUM ISLAND DISEASE CENTER, SEEKS CLARIFICATION OF AN
EXCLUSIVELY RECOGNIZED UNIT. SPECIFICALLY, IT SEEKS TO CLARIFY THE
EXISTING UNIT BY EXCLUDING THREE SECRETARIAL OR CLERICAL EMPLOYEES AS
CONFIDENTIAL EMPLOYEES. /1/ THE CURRENT EXCLUSIVELY RECOGNIZED UNIT
INCLUDES THE THREE DISPUTED EMPLOYEES. LOCAL 1940, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, CONTENDS THAT THE
THREE EMPLOYEES INVOLVED DO NOT PERFORM CONFIDENTIAL LABOR-MANAGEMENT
DUTIES WHICH WOULD REQUIRE THAT THEY SHOULD BE EXCLUDED FROM THE UNIT.
THE PETITIONER IS ENGAGED IN THE RESEARCH OF ANIMAL DISEASES AND HAS
THE RESPONSIBILITY FOR DEVELOPING INFORMATION ON ANIMAL DISEASES WHICH
MIGHT ENTER THE COUNTRY. SINCE 1963 THE AFGE HAS BEEN THE EXCLUSIVE
BARGAINING REPRESENTATIVE FOR THE EMPLOYEES OF THE PETITIONER. THE
THREE EMPLOYEE CLASSIFICATIONS INVOLVED IN THE INSTANT PETITION ARE THE
SECRETARY TO THE PETITIONER'S DIRECTOR; THE SECRETARY TO THE CHIEF,
ENGINEERING AND PLAN MANAGEMENT GROUP; AND A CLERK-TYPIST FOR THE
ADMINISTRATIVE OFFICER.
THE EVIDENCE ESTABLISHES THAT THE SECRETARY TO THE PETITIONER'S
DIRECTOR ATTENDS SUPERVISORY STAFF MEETINGS HELD EVERY FOUR TO SIX WEEKS
AT WHICH LABOR RELATIONS POLICIES ARE DISCUSSED, THAT THE INCUMBENT
PREPARES AND TYPES MEMORANDA OF THESE MEETINGS AND CORRESPONDENCE
CONCERNING LABOR RELATIONS POLICY FOR THE DIRECTOR'S SIGNATURE, AND THAT
SHE HAS ACCESS NOT NORMALLY GRANTED TO OTHER MEMBERS OF THE BARGAINING
UNIT, TO PERSONAL FILES OF BARGAINING UNIT MEMBERS. MOREOVER, THE
POSITION DESCRIPTION FOR THIS POSITION DESCRIBES THE JOB AS A
"CONFIDENTIAL" POSITION.
WITH REGARD TO THE SECRETARY TO THE CHIEF, ENGINEERING AND PLAN
MANAGEMENT GROUP, THE RECORD REVEALS THAT THE CHIEF IS RESPONSIBLE FOR
THE DIRECTION OR SUPERVISION OF MORE THAN HALF OF THE EMPLOYEES IN THE
BARGAINING UNIT AND THAT HE IS RESPONSIBLE FOR THE FORMAL AND INFORMAL
PROCESSING OF GRIEVANCES UNDER THE EXISTING GRIEVANCE PROCEDURE.
FURTHER, HE PREPARES MEMORANDA AND INVESTIGATIVE REPORTS IN CONNECTION
WITH GRIEVANCES AND, AS A MEMBER OF THE PETITIONER'S NEGOTIATING TEAM,
PARTICIPANTS IN NEGOTIATIONS AND PREPARES CONFIDENTIAL WAGE REPORTS AND
SURVEYS TO BE USED BY MANAGEMENT IN FORMULATING ITS POSITION FOR
NEGOTIATIONS. THE SECRETARY TO THE CHIEF PREPARES CORRESPONDENCE,
MEMORANDA AND REPORTS INVOLVING THE ABOVE FUNCTIONS AND HAS ACCESS TO
CERTAIN INFORMATION CONCERNING GRIEVANCES, WAGE REPORTS AND SURVEYS
WHICH PERTAINS TO LABOR-MANAGEMENT RELATIONS AND WHICH IS NOT AVAILABLE
TO THE AFGE OR TO MEMBERS OF THE BARGAINING UNIT.
UNDER THE ABOVE CIRCUMSTANCES, I FIND THAT THE SECRETARIES TO THE
PETITIONER'S DIRECTOR AND CHIEF, ENGINEERING AND PLAN MANAGEMENT GROUP,
ACT IN CONFIDENTIAL CAPACITIES WITH RESPECT TO OFFICIALS WHO FORMULATE
OR EFFECTUATE GENERAL LABOR RELATIONS POLICIES AND THAT THEY HAVE
REGULAR ACCESS TO CONFIDENTIAL LABOR RELATIONS MATERIALS AND TO OFFICE
AND PERSONNEL FILES NOT AVAILABLE TO OTHER EMPLOYEES IN THE UNIT. IT
HAS BEEN FOUND PREVIOUSLY THAT IT WOULD EFFECTUATE THE PURPOSES AND
POLICIES OF THE ORDER IF EMPLOYEES, SUCH AS THE SECRETARY TO THE
DIRECTOR AND SECRETARY TO THE CHIEF, ENGINEERING AND PLAN MANAGEMENT
GROUP, WHO ASSIST AND ACT IN A CONFIDENTIAL CAPACITY TO PERSONS WHO
FORMULATE AND EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF LABOR
RELATIONS, WERE EXCLUDED FROM EXCLUSIVE BARGAINING UNITS. /2/2
ACCORDINGLY, I FIND THAT THE JOB CLASSIFICATIONS OF SECRETARY TO THE
DIRECTOR AND SECRETARY TO THE CHIEF, ENGINEERING AND PLAN MANAGEMENT
GROUP SHOULD BE EXCLUDED FROM THE UNIT.
THE RECORD INDICATES THAT THE CLERK-TYPIST FOR THE ADMINISTRATIVE
OFFICER IS UNDER THE DIRECT SUPERVISION OF THE OFFICE SERVICES MANAGER
AND PERFORMS ADMINISTRATIVE SERVICES FOR BOTH THE ADMINISTRATIVE OFFICER
AND THE OFFICE SERVICES MANAGER. THE ADMINISTRATIVE OFFICER IS
PRIMARILY RESPONSIBLE FOR THE BUDGET AND STAFFING LEVELS OF THE
PETITIONER. HE ALSO ACTS AS A MEMBER OF THE MANAGEMENT NEGOTIATING
TEAM, ATTENDS STAFF MEETINGS, PROVIDES INPUT ON STAFFING AND BUDGET
MATTERS AND, ON OCCASION, GATHERS INFORMATION PERTAINING TO EMPLOYEE
GRIEVANCES. THE EVIDENCE ESTABLISHES THAT THE INCUMBENT CLERK-TYPIST
HANDLES CORRESPONDENCE FOR THE ADMINISTRATIVE OFFICER RELATING TO
PERSONNEL STAFFING AND BUDGETARY MATTERS USED IN CONTRACT NEGOTIATIONS
AND THAT SHE ALSO HANDLES A WIDE RANGE OF ADMINISTRATIVE, ACCOUNTING AND
PROCUREMENT MATTERS FOR THE OFFICE SERVICES MANAGER WHICH REQUIRES
ACCESS TO RECORDS AND FILES. IN ADDITION, SHE WORKS CLOSELY WITH THE
ACCOUNTING TECHNICIAN IN COMPILING OTHER REPORTS AND SHE CODES
PROCUREMENT ACTIONS FOR BUDGET AND ACCOUNTING PURPOSES.
UNDER ALL OF THE CIRCUMSTANCES, I DO NOT CONSIDER THE CLERK-TYPIST
FOR THE ADMINISTRATIVE OFFICER TO BE AN EMPLOYEE WHO ASSISTS OR ACTS IN
A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE AND EFFECTUATE POLICIES
IN THE FIELD OF LABOR RELATIONS. AS HAS BEEN PREVIOUSLY FOUND, MERE
ACCESS TO PERSONNEL OR STATISTICAL INFORMATION WOULD NOT BE DEEMED
SUFFICIENT TO ESTABLISH THAT AN EMPLOYEE IS SERVING IN A CONFIDENTIAL
CAPACITY UNDER THE ORDER. /3/ NOR, IN THE CIRCUMSTANCES OF THIS CASE,
DO I FIND THAT THE INCUMBENT'S HANDLING OF CORRESPONDENCE WHICH
ULTIMATELY MAY BE UTILIZED IN CONTRACT NEGOTIATIONS WARRANTS HER
EXCLUSION FROM THAT UNIT. ACCORDINGLY, I FIND THAT THE JOB
CLASSIFICATION OF CLERK-TYPIST FOR THE ADMINISTRATIVE OFFICER SHOULD BE
INCLUDED IN THE UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED ON JUNE 21, 1963, TO LOCAL 1940,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AT THE U.S.
DEPARTMENT OF AGRICULTURE, AGRICULTURAL RESEARCH SERVICE, PLUM ISLAND
ANIMAL DISEASE CENTER, OREINT POINT, NEW YORK, BE, AND IT HEREBY IS,
CLARIFIED BY EXCLUDING FROM SAID UNIT THE EMPLOYEE JOB CLASSIFICATIONS,
SECRETARY TO THE DIRECTOR OF THE PLUM ISLAND ANIMAL DISEASE CENTER AND
SECRETARY TO THE CHIEF, ENGINEERING AND PLAN MANAGEMENT GROUP, AND BY
INCLUDING IN SAID UNIT THE CLERK-TYPIST FOR THE ADMINISTRATIVE OFFICER.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
/1/ AT THE HEARING, THE PETITIONER EXCLUDED FROM THE COVERAGE OF ITS
PETITION A FOURTH EMPLOYEE POSITION WHICH PRESENTLY IS VACANT.
/2/ SEE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, AIRWAY FACILITIES SECTOR, FORT WORTH, TEXAS, A/SLMR NO.
230; DEPARTMENT OF TREASURY, DIVISION OF DISBURSEMENT, BIRMINGHAM,
ALABAMA, A/SLMR NO. 217; DEPARTMENT OF INTERIOR, BUREAU OF LAND
MANAGEMENT DISTRICT OFFICE, LAKEVIEW, OREGON, A/SLMR NO. 212; UNITED
STATES CUSTOM SERVICE, REGION IX, CHICAGO, ILLINOIS, A/SLMR NO. 210;
THE DEPARTMENT OF THE TREASURY, U.S. SAVINGS BONDS DIVISION, A/SLMR NO.
185; ST. LOUIS REGION, UNITED STATES CIVIL SERVICE COMMISSION, ST.
LOUIS, MISSOURI, A/SLMR NO. 162; AND VIRGINIA NATIONAL GUARD
HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, A/SLMR NO. 69.
/3/ SEE VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION, 111TH
ARTILLERY, CITED ABOVE.
4 A/SLMR 427; P. 565; CASE NO. S-E-3 (63-4032); SEPTEMBER 30,
1974.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (DISTRICT NINE)
AND
DIRECTOR, OFFICE OF LABOR-MANAGEMENT
AND WELFARE-PENSION REPORTS,
UNITED STATES DEPARTMENT OF LABOR
A/SLMR NO. 427
IN THE SUBJECT CASE AN ADMINISTRATIVE LAW JUDGE ISSUED HIS REPORT AND
RECOMMENDATION RECOMMENDING THAT THE COMPLAINT IN THIS MATTER, FILED BY
THE DIRECTOR, OFFICE OF LABOR-MANAGEMENT AND WELFARE-PENSION REPORTS,
UNITED STATES DEPARTMENT OF LABOR (DIRECTOR) PURSUANT TO SECTION 204.66
AND 204.67 OF THE ASSISTANT SECRETARY'S REGULATIONS, BE DISMISSED.
IN THE COMPLAINT, THE DIRECTOR ALLEGED THAT THE ELECTION OF DELEGATES
TO THE NATIONAL CONVENTION OF THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (DISTRICT NINE) (AFGE) BY CERTAIN LOCALS IN DISTRICT
NINE WAS IN VIOLATION OF THE ORDER AND REQUESTED THAT THE ELECTION OF
THE AFGE'S VICE-PRESIDENT OF THE NINTH DISTRICT BE SET ASIDE AND THAT
THE AFGE BE ORDERED TO HOLD A NEW ELECTION FOR VICE-PRESIDENT OF THE
NINTH DISTRICT, INCLUDING THE ELECTION OF DELEGATES.
THEREAFTER, THE DIRECTOR AND THE AFGE ENTERED INTO A STIPULATION IN
WHICH THE AFGE, WITHOUT CONCEDING THAT THE PREVIOUSLY HELD ELECTION WAS
IN VIOLATION OF THE ORDER, AGREED TO CONDUCT ITS NEXT REGULARLY
SCHEDULED ELECTION FOR DISTRICT NINE VICE-PRESIDENT WITH THE TECHNICAL
ASSISTANCE OF THE OFFICE OF LABOR-MANAGEMENT AND WELFARE-PENSION REPORTS
AND AGREED THAT SUCH ELECTION WOULD BE IN ACCORDANCE WITH THE EXECUTIVE
ORDER, THE ASSISTANT SECRETARY'S REGULATIONS, AND, SO FAR AS LAWFUL AND
PRACTICABLE, THE PROVISIONS OF ITS CONSTITUTION. THE ADMINISTRATIVE LAW
JUDGE THEREUPON CANCELLED THE PREVIOUSLY SCHEDULED HEARINGS IN THIS
MATTER AND DIRECTED THE PARTIES TO ADVISE HIM, AFTER THE NEXT ELECTION
OF DELEGATES IN DISTRICT NINE AND THE NEXT ELECTION FOR DISTRICT NINE
VICE-PRESIDENT, AS TO WHETHER THE TERMS OF THE STIPULATION WERE CARRIED
OUT. THE DIRECTOR AND THE AFGE SUBSEQUENTLY ADVISED THE ADMINISTRATIVE
LAW JUDGE THAT THE TERMS OF THE STIPULATION HAD BEEN CARRIED OUT AND
REQUESTED THAT THE COMPLAINT BE DISMISSED.
UPON CONSIDERATION OF ALL THE FOREGOING, THE ASSISTANT SECRETARY
ADOPTED THE RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE AND ORDERED
THAT THE COMPLAINT BE DISMISSED.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (DISTRICT NINE)
AND
DIRECTOR, OFFICE OF LABOR-MANAGEMENT
AND WELFARE-PENSION REPORTS,
UNITED STATES DEPARTMENT OF LABOR
ON JULY 29, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING RECOMMENDING
THAT THE COMPLAINT BE DISMISSED.
THIS PROCEEDING WAS INSTITUTED BY A COMPLAINT FILED BY THE DIRECTOR
ON JANUARY 29, 1973, IN ACCORDANCE WITH SECTIONS 204.66 AND 204.67 OF
THE ASSISTANT SECRETARY'S REGULATIONS AND EXECUTIVE ORDER 11491, AS
AMENDED. IN THE COMPLAINT, THE DIRECTOR ALLEGED, AMONG OTHER THINGS,
THAT THERE WAS PROBABLE CAUSE TO BELIEVE THAT THE RESPONDENT HAD
VIOLATED THE EXECUTIVE ORDER AND SECTION 204.29 OF THE ASSISTANT
SECRETARY'S REGULATIONS BASED ON THE CONDUCT OF ITS MAY 6, 1972,
ELECTION IN THAT IT FAILED TO ELECT ITS OFFICERS EITHER BY SECRET BALLOT
AMONG THE MEMBERS IN GOOD STANDING OR AT A CONVENTION OF DELEGATES
CHOSEN BY SECRET BALLOT. SPECIFICALLY, IT WAS ALLEGED THAT THE
RESPONDENT'S ELECTION FOR NATIONAL VICE-PRESIDENT WAS IMPROPER IN THAT
DELEGATES TO THE NATIONAL CONVENTION WHO VOTED IN THE MAY 6, 1972,
ELECTION WERE NOT ELECTED BY SECRET BALLOT. THE DIRECTOR REQUESTED,
AMONG OTHER THINGS, THAT THE RESPONDENT BE DIRECTED TO HOLD A NEW
ELECTION FOR VICE-PRESIDENT OF THE NINTH DISTRICT INCLUDING ELECTION OF
DELEGATES UNDER THE DIRECTION OF THE DIRECTOR.
THEREAFTER, ON JULY 25, 1973, THE RESPONDENT ENTERED INTO A
STIPULATION WITH THE DIRECTOR IN WHICH, WITHOUT CONCEDING THAT THE 1972
ELECTION FOR THE OFFICE OF NATIONAL VICE-PRESIDENT FOR DISTRICT NINE WAS
IN VIOLATION OF THE ORDER, IT AGREED, AMONG OTHER THINGS, THAT THE NEXT
REGULARLY SCHEDULED ELECTION OF DELEGATES IN DISTRICT NINE WOULD BE
CONDUCTED WITH THE TECHNICAL ASSISTANCE OF THE OFFICE OF
LABOR-MANAGEMENT AND WELFARE-PENSION REPORTS AND WOULD BE IN ACCORDANCE
WITH THE PROVISIONS OF THE ORDER, THE ASSISTANT SECRETARY'S REGULATIONS,
AND, SO FAR AS LAWFUL AND PRACTICABLE, THE PROVISIONS OF THE
RESPONDENT'S CONSTITUTION.
IN VIEW OF THE STIPULATION, ON AUGUST 31, 1973, THE ADMINISTRATIVE
LAW JUDGE CANCELLED THE SCHEDULED HEARINGS AND ORDERED THAT HE BE
ADVISED, AFTER THE NEXT ELECTION OF DELEGATES IN DISTRICT NINE AND THE
NEXT ELECTION FOR DISTRICT NINE VICE-PRESIDENT, AS TO WHETHER THE TERMS
OF THE STIPULATION WERE CARRIED OUT.
SUBSEQUENTLY, ON JULY 18, 1974, THE RESPONDENT AND THE DIRECTOR
ENTERED INTO A "JOINT ATTESTATION OF COMPLIANCE AND REQUEST FOR
DISMISSAL OF COMPLAINT" IN WHICH THE PARTIES JOINTLY ADVISED THE
ADMINISTRATIVE LAW JUDGE THAT THE TERMS OF THE STIPULATION HAD BEEN
CARRIED OUT AND REQUESTED THAT THE COMPLAINT BE DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, THE STIPULATION AND "JOINT ATTESTATION OF COMPLIANCE AND
REQUEST FOR DISMISSAL OF COMPLAINT" UPON WHICH IT IS BASED, AND THE
ENTIRE RECORD IN THE SUBJECT CASE, I HEREBY ADOPT THE RECOMMENDATION OF
THE ADMINISTRATIVE LAW JUDGE THAT THE COMPLAINT BE DISMISSED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. S-E-3 (63-4032)
BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
SEPTEMBER 30, 1974
IN THE MATTER OF
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (DISTRICT NINE)
IN THIS CASE A COMPLAINT WAS FILED BY THE DIRECTOR, OFFICE OF
LABOR-MANAGEMENT AND WELFARE-PENSION REPORTS, AND RECEIVED IN THE OFFICE
OF ADMINISTRATIVE LAW JUDGES ON FEBRUARY 5, 1973. THE COMPLAINT
ALLEGED, INTER ALIA, THAT THE ELECTION OF DELEGATES IN 1972 TO THE
NATIONAL CONVENTION OF RESPONDENT BY CERTAIN LOCALS IN DISTRICT NINE OF
RESPONDENT WAS IN VIOLATION OF EXECUTIVE ORDER 11491 AS AMENDED, AND
ASKED THAT THE ELECTION OF RESPONDENT'S VICE-PRESIDENT OF THE NINTH
DISTRICT BE SET ASIDE AND THAT RESPONDENT BE ORDERED TO HOLD A NEW
ELECTION FOR VICE-PRESIDENT OF THE NINTH DISTRICT, INCLUDING ELECTION OF
DELEGATES, AND THAT SUCH ELECTIONS BE HELD UNDER THE DIRECTION OF THE
DIRECTOR.
ON MARCH 12, 1973 THE RESPONDENT FILED AN ANSWER DENYING SOME
ALLEGATIONS OF THE COMPLAINT AND RAISING A NUMBER OF AFFIRMATIVE
DEFENSES. ON THE SAME DAY IT FILED A MOTION TO DISMISS, A MOTION TO
STRIKE, AND A MOTION TO SEVER CERTAIN ISSUES. EACH OF THE MOTIONS
CONTAINED A REQUEST FOR ORAL ARGUMENT PRIOR TO THE CASE BEING SCHEDULED
FOR EVIDENTIARY HEARING. ON MARCH 23, 1973 THE REQUESTS FOR ORAL
ARGUMENT WERE GRANTED AND HEARING ON THE MOTIONS SCHEDULED FOR APRIL 19,
1973. ON APRIL 6, 1973, THE COMPLAINANT FILED OBJECTIONS TO EACH OF THE
MOTIONS.
ON APRIL 19, 1973 ORAL ARGUMENT WAS HEARD. AN ORAL ORDER ON THE
MOTIONS WAS MADE THE SAME DAY, AND A WRITTEN ORDER ISSUED ON APRIL 23,
1973, DENYING THE MOTION TO DISMISS, DENYING THE MOTION TO SEVER, AND
DENYING IN PART THE MOTION TO STRIKE AND GRANTING IT IN PART.
ON APRIL 19, 1973 A PREHEARING CONFERENCE WAS HELD TO DISCUSS DATES
AND PLACES FOR HEARINGS FOR THE INTRODUCTION OF EVIDENCE. ON MAY 1,
1973 A NOTICE OF HEARINGS WAS ISSUED FOR EVIDENTIARY HEARINGS AT FIVE
LOCALITIES ON ELEVEN DATES BETWEEN SEPTEMBER 11 AND OCTOBER 25, 1975.
ON AUGUST 10, 1973 THE PARTIES FILED A STIPULATION WHICH WAS APPROVED
BY THE ADMINISTRATIVE LAW JUDGE THE SAME DAY. THE STIPULATION PROVIDED
FOR WHAT THE PARTIES AGREED WAS THE APPROPRIATE REMEDIAL ACTION FOR THE
VIOLATIONS ALLEGED IN THE COMPLAINT. IT INCLUDED A PROVISION THAT THE
NEXT SCHEDULED ELECTION OF DELEGATES IN DISTRICT NINE AND THE NEXT
REGULARLY SCHEDULED ELECTION FOR DISTRICT NINE VICE-PRESIDENT WOULD BE
CONDUCTED IN A PRESCRIBED MANNER. IT INCLUDED ALSO A PROVISION THAT
UPON FULFILLMENT OF THE SUBSTANTIVE TERMS OF THE STIPULATION THE
COMPLAINT SHOULD BE DISMISSED.
ON AUGUST 13, 1973, THE ADMINISTRATIVE LAW JUDGE ISSUED AN ORDER
CANCELLING THE SCHEDULED HEARINGS AND DIRECTING THAT PROMPTLY AFTER THE
NEXT ELECTION OF DELEGATES IN DISTRICT NINE AND THE NEXT ELECTION FOR
DISTRICT NINE VICE-PRESIDENT THE PARTIES ADVISE HIM WHETHER THE TERMS OF
THE STIPULATION HAD BEEN CARRIED OUT.
ON JULY 19, 1974, THE PARTIES FILED A "JOINT ATTESTATION OF
COMPLIANCE AND REQUEST FOR DISMISSAL OF COMPLAINT", AND
ACCORDINGLY, I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: JULY 29, 1974
WASHINGTON, D.C.
4 A/SLMR 426; P. 562; CASE NOS. 63-4764(RO), 63-4776(RO);
SEPTEMBER 4, 1974.
ACADEMY OF HEALTH SCIENCES,
U.S. ARMY,
FORT SAM HOUSTON, TEXAS
HEADQUARTERS, U.S. ARMY,
HEALTH SERVICES COMMAND,
FORT SAM HOUSTON, TEXAS
A/SLMR NO. 426
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 28
(NFFE), SOUGHT AN ELECTION IN TWO UNITS, ONE CONSISTING OF ALL GENERAL
SCHEDULE (GS) EMPLOYEES OF THE ACADEMY OF HEALTH SCIENCES, U.S. ARMY,
FORT SAM HOUSTON, TEXAS, AND THE OTHER CONSISTING OF ALL GS EMPLOYEES OF
THE HEADQUARTERS, U.S. ARMY, HEALTH SERVICES COMMAND, FORT SAM HOUSTON,
TEXAS. THE ACTIVITY CONTENDED THAT THE APPROPRIATE UNIT SHOULD INCLUDE
THE HEADQUARTERS, HEALTH SERVICES COMMAND, AND ITS FOUR SUBORDINATE
ORGANIZATIONAL ENTITIES LOCATED AT FORT SAM HOUSTON, WHICH WOULD INCLUDE
THE ACADEMY OF HEALTH SCIENCES.
THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE ADDUCED DURING THE
HEARING OF THIS CASE DID NOT PROVIDE A SUFFICIENT BASIS UPON WHICH A
DECISION COULD BE MADE REGARDING THE APPROPRIATENESS OF THE CLAIMED
UNITS. IN THIS REGARD, THE ASSISTANT SECRETARY NOTED THAT THERE WAS
INSUFFICIENT EVIDENCE WITH RESPECT TO THE DUTIES, CLASSIFICATIONS,
SKILLS, SUPERVISION, TRANSFER AND WORK CONTACTS OF THE EMPLOYEES IN THE
UNIT SOUGHT. HE ALSO NOTED THAT THERE WAS INSUFFICIENT EVIDENCE TO
ENABLE HIM TO DETERMINE WHETHER OR NOT AN AGREEMENT BAR EXISTED WITH
RESPECT TO CERTAIN EMPLOYEES OF THE ACADEMY OF HEALTH SCIENCES.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY REMANDED THE MATTER
TO THE ASSISTANT REGIONAL DIRECTOR FOR THE PURPOSE OF SECURING
ADDITIONAL EVIDENCE IN ACCORDANCE WITH HIS DECISION.
ACADEMY OF HEALTH SCIENCES,
U.S. ARMY,
FORT SAM HOUSTON, TEXAS /1/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 28
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO /2/
HEADQUARTERS, U.S. ARMY
HEALTH SERVICES COMMAND,
FORT SAM HOUSTON, TEXAS /3/
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 28
UPON PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491, AS
AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER A. J.
LEWIS. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE FREE FROM
PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THESE CASES, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 63-4764(RO), THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 28, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF
ALL GENERAL SCHEDULE (GS) PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
EMPLOYED AT THE ACADEMY OF HEALTH SCIENCES, FORT SAM HOUSTON, TEXAS,
EXCLUDING SUPERVISORS, MANAGEMENT OFFICIALS, GUARDS, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
ALL WAGE GRADE (WG) EMPLOYEES.
IN CASE NO. 63-4776(RO), THE NFFE SEEKS AN ELECTION IN A UNIT OF ALL
GS PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES EMPLOYED BY THE
HEADQUARTERS, HEALTH SERVICES COMMAND, FORT SAM HOUSTON, TEXAS,
EXCLUDING SUPERVISORS, MANAGEMENT OFFICIALS, GUARDS, EMPLOYEES ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
ALL WG EMPLOYEES.
THE ACTIVITY CONTENDS THAT A SINGLE UNIT INCLUDING BOTH GS AND WG
EMPLOYEES ASSIGNED TO ALL MEDICAL ACTIVITIES LOCATED AT FORT SAM HOUSTON
UNDER THE JURISDICTION OF THE U.S. ARMY HEALTH SERVICES COMMAND IS
APPROPRIATE. THIS UNIT WOULD ENCOMPASS THE HEADQUARTERS, HEALTH
SERVICES COMMAND, AND FOUR SUBORDINATE ORGANIZATIONAL ENTITIES,
INCLUDING THE ACADEMY OF HEALTH SCIENCES. THE INTERVENOR IN CASE NO.
63-4764(RO), THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
HEREIN CALLED AFGE, TAKES THE POSITION THAT THE APPROPRIATE UNIT SHOULD
CONSIST OF ALL EMPLOYEES SERVICED BY THE CIVILIAN PERSONNEL OFFICE AT
FORT SAM HOUSTON WHO ARE NOT PRESENTLY REPRESENTED IN EXCLUSIVELY
RECOGNIZED UNITS. ADDITIONALLY, THE AFGE CONTENDS THAT CERTAIN
EMPLOYEES OF THE ACADEMY OF HEALTH SCIENCES ARE SUBJECT TO AN AGREEMENT
BAR WHICH WOULD EXCLUDE THEM FROM ANY UNIT FOUND TO BE APPROPRIATE.
THE RECORD REVEALS THAT, PURSUANT TO A MAJOR ARMY-WIDE REORGANIZATION
ENTITLED "OPERATION STEADFAST," MOST OF WHICH WAS EFFECTIVE ON JULY 1,
1973, THE U.S. ARMY HEALTH SERVICES COMMAND WAS CREATED. THE NEWLY
CREATED ORGANIZATION HAS THE MISSION OF HEALTH CARE DELIVERY THROUGHOUT
THE UNITED STATES AND IS COMPRISED OF A HEADQUARTERS AT FORT SAM HOUSTON
AND 58 SUBORDINATE ELEMENTS, FOUR OF WHICH ARE LOCATED AT FORT SAM
HOUSTON. THE FOUR SUBORDINATE ELEMENTS LOCATED AT FORT SAM HOUSTON.
THE FOUR SUBORDINATE ELEMENTS LOCATED AT FORT SAM HOUSTON ARE THE
ACADEMY OF HEALTH SCIENCES, THE BROOKE ARMY MEDICAL CENTER, THE U.S.
ARMY REGIONAL DENTAL ACTIVITY, AND THE U.S. ARMY MEDICAL LABORATORY
(REGIONAL.)
THE HEADQUARTERS, HEALTH SERVICES COMMAND, IS A NEW ORGANIZATION
STAFF WITH EMPLOYEES TRANSFERRED FROM THE OFFICE OF THE SURGEON GENERAL,
WASHINGTON, D.C. REASSIGNED FROM OTHER ORGANIZATIONS LOCATED AT FORT SAM
HOUSTON, TRANSFERRED FROM THE BROOKE ARMY MEDICAL CENTER MANAGEMENT
INFORMATION SYSTEMS OFFICE, AND A NUMBER OF NEWLY HIRED EMPLOYEES. THE
RECORD REVEALS THAT IT HAS APPROXIMATELY 377 GS EMPLOYEES. THE ACADEMY
OF HEALTH SCIENCES, CONSISTING OF 317 GS AND 40 WG EMPLOYEES, WAS
STAFFED WITH EMPLOYEES OF THE FORMER U.S. ARMY MEDICAL TRAINING CENTER,
WHICH HAD BEEN A PORT OF THE HEADQUARTERS, FORT SAM HOUSTON COMMAND, AND
EMPLOYEES OF THE FORMER U.S. MEDICAL FIELD SERVICE SCHOOL AND OTHER
FORMER BROOKE ARMY NATIONAL CENTER EDUCATION AND TRAINING ELEMENTS. THE
BROOKE ARMY MEDICAL CENTER, WITH 753 GS AND 300 WG EMPLOYEES, EXISTED
PRIOR TO THE IMPLEMENTATION OF OPERATION STEADFAST, BUT IN ITS PREVIOUS
CONFIGURATION INCLUDED A NUMBER OF EMPLOYEES AND FUNCTIONS WHICH WERE
TRANSFERRED TO OTHER ORGANIZATIONAL ENTITIES AS A RESULT OF THE
REORGANIZATION. THE RECORD DOES NOT DISCLOSE ANY INSTANCES OF EMPLOYEES
HAVING BEEN TRANSFERRED INTO THE BROOKE ARMY MEDICAL CENTER AS A RESULT
OF THE REORGANIZATION. THE U.S. ARMY REGIONAL DENTAL ACTIVITY, WITH 6
GS EMPLOYEES, AND THE U.S. ARMY MEDICAL LABORATORY (REGIONAL), WITH 34
GS AND 5 WG EMPLOYEES, WERE TRANSFERRED INTACT TO THE HEALTH SERVICES
COMMAND. THE EVIDENCE ESTABLISHES THAT THE COMMANDING OFFICER OF EACH
OF THE FOUR SUBORDINATE ELEMENTS AT FORT SAM HOUSTON REPORTS TO THE
COMMANDER OF THE HEALTH SERVICES COMMAND, WHO, IN TURN, REPORTS TO THE
U.S. ARMY CHIEF OF STAFF.
ALSO LOCATED AT FORT SAM HOUSTON IS THE INSTITUTE OF SURGICAL
RESEARCH. THIS ORGANIZATION IS NOT A COMPONENT OF THE HEALTH SERVICES
COMMAND, BUT RATHER IS A SEPARATE ENTITY AND REPORTS TO THE SURGEON
GENERAL, DEPARTMENT OF THE ARMY. THE RECORD IS UNCLEAR AS TO WHAT THE
MISSION OF THE INSTITUTE OF SURGICAL RESEARCH IS AND GIVES NO INDICATION
AS TO THE NUMBER, TYPES OR DUTIES OF THE EMPLOYEES UNDER ITS
JURISDICTION.
PRIOR TO THE IMPLEMENTATION OF OPERATION STEADFAST, THE AFGE HELD
EXCLUSIVE RECOGNITION FOR SEVERAL UNITS INCLUDING CERTAIN EMPLOYEES NOW
EMPLOYED BY THE HEALTH SERVICES COMMAND. SPECIFICALLY, A UNIT OF
APPROXIMATELY 1200 GS AND WG EMPLOYEES OF HEADQUARTERS, FORT SAM
HOUSTON, FIFTH ARMY, WAS REPRESENTED BY AFGE LOCAL 2154. ALSO, AFGE
LOCAL 2169 HELD EXCLUSIVE RECOGNITION FOR TWO UNITS AT THE BROOKE ARMY
MEDICAL CENTER: A UNIT OF APPROXIMATELY 310 WG EMPLOYEES AND A UNIT OF
APPROXIMATELY 125 GS NURSING ASSISTANTS. THE RECORD REVEALS THAT THERE
WAS NO NEGOTIATED AGREEMENT COVERING THE EMPLOYEES IN THE LATTER TWO
UNITS IN EFFECT AT THE TIME OF THE FILING OF THE PETITION IN THE INSTANT
CASE, AND, THEREFORE, SUCH EMPLOYEES WOULD NOT BE BARRED FROM BEING
INCLUDED IN ANY UNIT FOUND TO BE APPROPRIATE ON THE BASIS OF AN
AGREEMENT BAR.
WITH RESPECT TO THE UNIT REPRESENTED BY AFGE LOCAL 2154, THE RECORD
REVEALS THAT PRIOR TO THE IMPLEMENTATION OF OPERATION STEADFAST THE U.S.
ARMY MEDICAL TRAINING CENTER WAS PART OF HEADQUARTERS, FORT SAM HOUSTON,
AND, AS SUCH, ITS APPROXIMATELY 35 EMPLOYEES WERE REPRESENTED BY AFGE
LOCAL 2154. AS A RESULT OF THE REORGANIZATION, THE MEDICAL TRAINING
CENTER BECAME A PART OF THE ACADEMY OF HEALTH SCIENCES. AN AGREEMENT
COVERING AFGE LOCAL 2154'S UNIT OF EMPLOYEES OF HEADQUARTERS, FORT SAM
HOUSTON, EXPIRED ON MARCH 15, 1973, BUT WAS EXTENDED UNTIL JULY 1, 1973,
THE EFFECTIVE DATE OF THE REORGANIZATION. THE RECORD REVEALS THAT A
SUCCESSOR AGREEMENT BETWEEN THE PARTIES WAS SIGNED AT THE LOCAL LEVEL BY
THE HEADQUARTERS, FORT SAM HOUSTON AND THE AFGE ON APRIL 25, 1973, AND
WAS APPROVED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, ON NOVEMBER 1,
1973. THUS, ANY EMPLOYEES WITHIN THIS UNIT WOULD NOT BE ELIGIBLE FOR
INCLUSION IN A UNIT OF EMPLOYEES OF THE ACADEMY OF HEALTH SCIENCES
BECAUSE THE INSTANT PETITION FOR THE EMPLOYEES OF THE ACADEMY OF HEALTH
SCIENCES WAS FILED ON NOVEMBER 19, 1973, SUBSEQUENT TO THE INITIAL
SIGNING OF THE ABOVE-NOTED AGREEMENT. HOWEVER, INASMUCH AS THE EVIDENCE
IN THE RECORD IS INSUFFICIENT TO DETERMINE WHETHER THE RELOCATION OF THE
EMPLOYEES OF THE MEDICAL TRAINING CENTER CONSTITUTES A FUNCTIONAL
RELOCATION OF A PORTION OF THE EXCLUSIVELY RECOGNIZED UNIT, I SHALL MAKE
NO FINDING AT THIS TIME CONCERNING WHETHER OR NOT AN AGREEMENT BAR
EXISTS PRECLUDING THE INCLUSION OF THESE EMPLOYEES IN ANY UNIT FOUND
APPROPRIATE.
THERE ARE SUBSTANTIAL AMBIGUITIES REGARDING THE COMPOSITION OF THE
PETITIONED FOR UNITS. THUS, SUFFICIENT INFORMATION UPON WHICH TO MAKE A
DECISION IS LACKING WITH RESPECT TO THE DUTIES OF THE EMPLOYEES IN THE
CLAIMED UNITS AND THEIR RELATIONSHIP TO ONE ANOTHER. IN THIS REGARD,
THERE IS NO INFORMATION WITH REGARD TO THE NUMBER OF EMPLOYEES WITHIN
EACH SUBDIVISION OF THE HEADQUARTERS, HEALTH SERVICES COMMAND AND THE
ACADEMY OF HEALTH SCIENCES, THEIR JOB TITLES AND CLASSIFICATIONS, THE
TYPE OF WORK THEY PERFORM AND THE SKILLS INVOLVED, THEIR SUPERVISION,
THE EXTENT OF WORK CONTACT BETWEEN GS AND WG EMPLOYEES, THE EXTENT, IF
ANY, OF INTERCHANGE AND TRANSFERS WITHIN THE HEADQUARTERS, HEALTH
SERVICES COMMAND AND THE ACADEMY OF HEALTH SCIENCES, AND THE EMPLOYEES'
WORKING CONDITIONS. LIKEWISE, THE RECORD IS DEVOID OF INFORMATION
CONCERNING THE DEGREE OF INTERCHANGE, IF ANY, WORK CONTACTS AND ANY
OTHER INDICIA OF A COMMUNITY OF INTEREST BETWEEN THE EMPLOYEES OF THE
HEADQUARTERS' ORGANIZATION AND THE EMPLOYEES OF ITS FOUR SUBSIDIARY
ENTITIES LOCATED AT FORT SAM HOUSTON. FURTHER, AS NOTED ABOVE, THE
RECORD IS SUFFICIENT TO DETERMINE WHETHER OR NOT AN AGREEMENT BAR EXISTS
WITH RESPECT TO THE EMPLOYEES OF THE FORMER MEDICAL TRAINING CENTER NOW
EMPLOYED BY THE ACADEMY OF HEALTH SCIENCES.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE RECORD DOES NOT
PROVIDE AN ADEQUATE BASIS UPON WHICH TO DETERMINE THE APPROPRIATENESS OF
THE UNITS BEING SOUGHT. THEREFORE, I SHALL REMAND THE SUBJECT CASES TO
THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR FOR THE PURPOSE OF REOPENING
THE RECORD IN ORDER TO SECURE ADDITIONAL EVIDENCE AS TO THE
APPROPRIATENESS OF THE CLAIMED UNITS.
IT IS HEREBY ORDERED THAT THE SUBJECT CASES BE, AND THEY HEREBY ARE,
REMANDED TO THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR.
DATED, WASHINGTON, D.C.
SEPTEMBER 4, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE INTERVENOR APPEARS AS AMENDED AT THE HEARING.
/3/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
4 A/SLMR 425; P. 551; CASE NO. 71-2572; AUGUST 28, 1974.
PUGET SOUND NAVAL SHIPYARD
DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON
A/SLMR NO. 425
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
BREMERTON METAL TRADE COUNCIL ON BEHALF OF ITS AFFILIATE MEMBER AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 48, AFL-CIO, (COMPLAINANT)
AGAINST PUGET SOUND NAVAL SHIPYARD, DEPARTMENT OF THE NAVY, BREMERTON,
WASHINGTON (RESPONDENT) ALLEGING THAT THE LATTER VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY DENYING A PROMOTION TO ONE OF ITS
EMPLOYEES BECAUSE OF HIS UNION ACTIVITIES.
THE EVIDENCE REVEALED THAT THE ASSISTANT REGIONAL DIRECTOR ISSUED TO
THE COMPLAINANT A NUMBER OF BLANK REQUESTS FOR PRODUCTION OF DOCUMENTS
TWO DAYS PRIOR TO THE COMMENCEMENT OF THE HEARING IN THE INSTANT CASE
AND THAT COMPLAINANT, AFTER FILLING IN SUCH REQUESTS, SERVED THEM ON
RESPONDENT ON THE DAY PRIOR TO THE HEARING. AT THE HEARING, THE
RESPONDENT MADE A MOTION TO QUASH THE REQUESTS CONTENDING, AMONG OTHER
THINGS, THAT THE REQUESTS WERE NOT ISSUED IN ACCORDANCE WITH SECTION
206.7(B) AND (C) OF THE ASSISTANT SECRETARY'S REGULATIONS. THE
ADMINISTRATIVE LAW JUDGE DENIED THE MOTION TO QUASH ON THE GROUNDS THAT
IT WAS NOT HIS FUNCTION TO DETERMINE THE PROPRIETY OF THE ASSISTANT
REGIONAL DIRECTOR'S ACTIONS IN ISSUING THE REQUESTS AND THAT HE WAS NOT
THEN IN A POSITION TO ASCERTAIN THE REASONS FOR THE ASSISTANT REGIONAL
DIRECTOR'S ACTIONS. THEREAFTER, AND PURSUANT TO A MOTION BY THE
COMPLAINANT, THE ADMINISTRATIVE LAW JUDGE ISSUED HIS OWN REQUESTS FOR
THE PRODUCTION OF DOCUMENTS COVERING THE SAME DOCUMENTS PREVIOUSLY
REQUESTED EXCEPT THOSE BE DETERMINED WERE READILY OBTAINABLE BY THE
COMPLAINANT.
THE RESPONDENT REFUSED TO COMPLY WITH THE REQUESTS ISSUED BY THE
ADMINISTRATIVE LAW JUDGE CONTENDING THAT THE ADMINISTRATIVE LAW JUDGE
WAS WITHOUT JURISDICTION TO ISSUE SUCH REQUESTS TO PRODUCE AS LONG AS
THE REQUESTS ISSUED BY THE ASSISTANT REGIONAL DIRECTOR WERE OUTSTANDING.
IN REACHING HIS DECISION IN THIS MATTER, THE ADMINISTRATIVE LAW JUDGE
EXCLUDED FROM EVIDENCE ALL OF THE DOCUMENTS WHICH RESPONDENT SOUGHT TO
INTRODUCE WHICH WERE COVERED BY HIS REQUESTS TO PRODUCE BUT UNDER THE
CIRCUMSTANCES DECIDED NOT TO EXCLUDE ANY OF THE EVIDENCE RELATED TO SUCH
DOCUMENTS. ALSO, WHILE FINDING THAT THERE WAS INSUFFICIENT EVIDENCE TO
ESTABLISH THAT THE EMPLOYEES INVOLVED WAS DENIED A PROMOTION BECAUSE OF
HIS UNION ACTIVITIES, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE
RESPONDENT BE REQUIRED TO PROVIDE THE EMPLOYEE BECAUSE OF ITS FAILURE TO
COMPLY WITH THE REQUESTS TO PRODUCE DOCUMENTS.
THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT THE RESPONDENT'S REFUSAL TO COMPLY WITH THE
ADMINISTRATIVE LAW JUDGE'S REQUESTS FOR THE PRODUCTION OF DOCUMENTS WAS
PATENTLY UNJUSTIFIED. ALSO, WHILE THE ASSISTANT SECRETARY AGREED WITH
THE ADMINISTRATIVE LAW JUDGE'S DECISION TO EXCLUDE FROM EVIDENCE ALL OF
THE DOCUMENTS SOUGHT BY THE ADMINISTRATIVE LAW JUDGE WHICH RESPONDENT
ATTEMPTED TO INTRODUCE IN ITS OWN CASE, HE FOUND THAT UNDER THE
CIRCUMSTANCES WHICH REVEALED RESPONDENT HAD NO JUSTIFIABLE REASON FOR
FAILING TO COMPLY WITH THE INSTANT REQUESTS, THAT ALL WRITTEN AND ORAL
EVIDENCE RELATED TO THE DOCUMENTS COVERED BY THE REQUESTS SHOULD HAVE
BEEN EXCLUDED PURSUANT TO SECTION 206.7(E) OF THE ASSISTANT SECRETARY'S
REGULATIONS AND NOT CONSIDERED IN THE DETERMINATION OF THE CASE. IN
THIS CONNECTION, HE NOTED THAT THE ASSISTANT SECRETARY LACKS SUBPOENA
ENFORCEMENT POWERS, AND CONCLUDED THAT IT IS NECESSARY TO UTILIZE ALL
MEANS AVAILABLE TO THE ASSISTANT SECRETARY UNDER SECTION 206.7(E) TO
SECURE THE COOPERATION OF PARTIES WITH, AMONG OTHERS, ADMINISTRATIVE LAW
JUDGES AND HEARING OFFICERS, IN THEIR EFFORTS TO PERFORM THEIR
RESPONSIBILITY OF DEVELOPING COMPLETE AND ACCURATE RECORDS UPON WHICH
DECISIONS BY THE ASSISTANT SECRETARY CAN BE BASED.
REGARDING THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT THE
RESPONDENT BE REQUIRED TO PROMOTE THE EMPLOYEE INVOLVED BECAUSE OF ITS
FAILURE TO COMPLY WITH THE REQUESTS TO PRODUCE DOCUMENTS, THE ASSISTANT
SECRETARY CONCLUDED THAT SUCH A REMEDY BASED SOLELY ON A FAILURE TO
COMPLY WITH THE ASSISTANT SECRETARY'S REGULATIONS WAS PUNITIVE IN NATURE
AND WOULD NOT EFFECTUATE THE PURPOSE AND POLICIES OF THE ORDER.
NOTING THAT IN HIS REPORT AND RECOMMENDATIONS THE ADMINISTRATIVE LAW
JUDGE RELIED ON CERTAIN WRITTEN AND ORAL EVIDENCE WHICH WAS RELATED TO
THE DOCUMENTS WHICH RESPONDENT REFUSED TO PRODUCE, THE ASSISTANT
SECRETARY REMANDED THE CASE TO THE ADMINISTRATIVE LAW JUDGE FOR THE
PURPOSE OF ISSUING A SUPPLEMENTAL REPORT AND RECOMMENDATION WITHOUT
CONSIDERING SUCH RELATED EVIDENCE.
PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON
AND
BREMERTON METAL TRADES COUNCIL
ON BEHALF OF ITS AFFILIATE MEMBER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 48, AFL-CIO
ON APRIL 29, 1974, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER BY ITS FAILURE TO PROMOTE JAMES M. BYRD TO THE POSITION OF METAL
INSPECTOR "A" AS ALLEGED IN THE COMPLAINT. HOWEVER, BASED ON, AMONG
OTHER THINGS, THE RESPONDENT'S "PATENTLY UNJUSTIFIED" REFUSAL TO HONOR
REQUESTS FOR PRODUCTION OF DOCUMENTS ISSUED BY THE ADMINISTRATIVE LAW
JUDGE, THE LATTER RECOMMENDED THAT THE RESPONDENT BE REQUIRED TO PROMOTE
BYRD TO THE ABOVE-NOTED POSITION. THEREAFTER, THE RESPONDENT FILED
EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND A SUPPORTING BRIEF.
THE ASSISTANT SECRETARY HAS REVIEWED THE RULINGS OF THE
ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING. EXCEPT AS PROVIDED BELOW,
THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS AND THE ENTIRE
RECORD IN THE SUBJECT CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS AND
SUPPORTING BRIEF, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT
HEREIN.
ON OCTOBER 23, 1973, TWO DAYS PRIOR TO THE COMMENCEMENT OF THE
HEARING IN THIS MATTER, THE ASSISTANT REGIONAL DIRECTOR ISSUED TO THE
COMPLAINANT A NUMBER OF BLANK REQUESTS FOR PRODUCTION OF DOCUMENTS. THE
COMPLAINANT FILLED IN THE BLANK REQUESTS AND SERVED THEM ON THE
RESPONDENT NEAR THE CLOSE OF THE BUSINESS ON THE NEXT DAY, OCTOBER 24,
1973. AFTER THE HEARING OPENED, THE RESPONDENT FILED A MOTION TO QUASH
THE REQUESTS WITH THE ADMINISTRATIVE LAW JUDGE CONTENDING, AMONG OTHER
THINGS, THAT THE REQUESTS WERE VOID AS THEY WERE NOT ISSUED IN
COMPLIANCE WITH SECTIONS 206.7(B) AND (C) OF THE ASSISTANT SECRETARY'S
REGULATIONS. THE ADMINISTRATIVE LAW JUDGE DENIED THE MOTION TO QUASH ON
THE GROUNDS THAT IT WAS NOT HIS FUNCTION TO DETERMINE THE PROPRIETY OF
THE ACTIONS OF THE ASSISTANT REGIONAL DIRECTOR AND THAT HE WAS NOT THEN
IN A POSITION TO ASCERTAIN THE REASONS FOR THE ASSISTANT REGIONAL
DIRECTOR'S ACTIONS. NOTWITHSTANDING THE ADMINISTRATIVE LAW JUDGE'S
RULING DENYING THE MOTION TO QUASH, THE RESPONDENT CONTINUED IN ITS
REFUSAL TO PRODUCE THE DOCUMENTS ON THE GROUND THAT THE REQUESTS WERE
VOID. THEREAFTER, PURSUANT TO A REQUEST OF THE COMPLAINANT AND IN
ACCORDANCE WITH THE ASSISTANT SECRETARY'S REGULATIONS, THE
ADMINISTRATIVE LAW JUDGE ISSUED HIS OWN REQUESTS FOR PRODUCTION OF
DOCUMENTS COVERING ALL OF THE DOCUMENTS PREVIOUSLY REQUESTED EXCEPT
THOSE HE DETERMINED WERE READILY OBTAINABLE BY THE COMPLAINANT.
THE RESPONDENT REFUSED TO COMPLY WITH THE REQUESTS ISSUED BY THE
ADMINISTRATIVE LAW JUDGE AND REFUSED TO PRODUCE THE DOCUMENTS SOUGHT
HEREIN, EXCEPT THOSE IT CHOSE TO INTRODUCE IN ITS OWN CASE. IT
CONTENDED, IN ESSENCE, THAT THE ADMINISTRATIVE LAW JUDGE WAS WITHOUT
JURISDICTION TO ISSUE SUCH REQUESTS SO LONG AS THE REQUESTS ISSUED BY
THE ASSISTANT REGIONAL DIRECTOR WERE OUTSTANDING. /1/ IN VIEW OF THE
RESPONDENT'S REFUSAL TO COMPLY WITH HIS REQUEST TO PRODUCE DOCUMENTS,
THE ADMINISTRATIVE LAW JUDGE EXCLUDED FROM EVIDENCE ALL OF THE DOCUMENTS
WHICH THE RESPONDENT SOUGHT TO INTRODUCE IN CONNECTION WITH ITS OWN CASE
WHICH WERE COVERED BY HIS REQUESTS TO PRODUCE BUT, UNDER THE PARTICULAR
CIRCUMSTANCES, DECIDED NOT TO EXCLUDE THE RESPONDENT'S EVIDENCE WHICH
WAS RELATED TO SUCH DOCUMENTS. ALSO, WHILE FINDING THAT THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH THAT BYRD WAS DENIED A PROMOTION
BECAUSE OF HIS UNION ACTIVITIES, THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED THAT THE RESPONDENT BE REQUIRED TO PROMOTE BYRD AS A REMEDY
FOR ITS FAILURE TO COMPLY WITH HIS REQUESTS TO PRODUCE DOCUMENTS.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
RESPONDENT'S REFUSAL TO COMPLY WITH THE ADMINISTRATIVE LAW JUDGE'S
REQUESTS TO PRODUCE DOCUMENTS WAS PATENTLY UNJUSTIFIED. IN MY VIEW,
SUCH INDEFENSIBLE CONDUCT AS WAS DISPLAYED BY THE RESPONDENT IN ITS
REFUSAL TO PRODUCE THE DOCUMENTS REQUESTED BY THE ADMINISTRATIVE LAW
JUDGE MUST NOT BE ALLOWED TO IMPEDE THE ASSISTANT SECRETARY AND
ADMINISTRATIVE LAW JUDGES IN THEIR EFFORTS TO SECURE DOCUMENTARY
EVIDENCE WHICH IS DEEMED MATERIAL AND RELEVANT TO THE MATTERS BEING
CONSIDERED. ANY POLICY TO THE CONTRARY WOULD PERMIT PARTIES EFFECTIVELY
TO INTERFERE WITH THE PROCESS ESTABLISHED BY THE ASSISTANT SECRETARY IN
THE EXERCISE OF HIS AUTHORITY UNDER THE EXECUTIVE ORDER. IN THIS
CONNECTION, IT SHOULD BE NOTED THAT THE ASSISTANT SECRETARY LACKS
SUBPOENA ENFORCEMENT POWER AND, THUS, MAY RELY ON THE COOPERATION OF THE
PARTIES WITH, AMONG OTHERS, ADMINISTRATIVE LAW JUDGES AND HEARING
OFFICERS IN THEIR EFFORTS TO PERFORM THEIR RESPONSIBILITY OF DEVELOPING
COMPLETE AND ACCURATE RECORDS UPON WHICH DECISIONS BY THE ASSISTANT
SECRETARY CAN BE BASED. /2/ IN THESE CIRCUMSTANCES, I FIND THAT IT IS
NECESSARY TO UTILIZE ALL MEANS AVAILABLE TO THE ASSISTANT SECRETARY
UNDER SECTION 206.7(E) OF THE ASSISTANT SECRETARY'S REGULATIONS TO
DISCOURAGE PARTIES FROM WITHHOLDING DOCUMENTARY EVIDENCE WHERE, AS HERE,
SUCH EVIDENCE HAS BEEN PROPERLY REQUESTED BY AN ADMINISTRATIVE LAW
JUDGE. /3/ AS NOTED ABOVE, I AGREE WITH THE ADMINISTRATIVE LAW JUDGE
THAT THE ARGUMENTS ADVANCED BY THE RESPONDENT TO SUPPORT ITS REFUSAL TO
COMPLY WITH THE ADMINISTRATIVE LAW JUDGE'S REQUESTS WERE UNJUSTIFIED IN
THAT THEY HAD NO RELATION TO THE ULTIMATE ISSUE OF WHETHER OR NOT THE
COMPLAINANT AND THE ADMINISTRATIVE LAW JUDGE WERE ENTITLED TO THE
DOCUMENTS SOUGHT IN THE REQUESTS. AND WHILE I AGREE WITH THE
ADMINISTRATIVE LAW JUDGE'S DECISION TO EXCLUDE ALL OF THE DOCUMENTS
SOUGHT BY THE ADMINISTRATIVE LAW JUDGE WHICH THE RESPONDENT SOUGHT TO
INTRODUCE IN ITS OWN CASE, UNDER THE CIRCUMSTANCES HEREIN WHICH REVEAL
THAT THE RESPONDENT HAD NO JUSTIFIABLE REASON FOR FAILING TO COMPLY WITH
THE REQUESTS, I FIND THAT ALL WRITTEN AND ORAL EVIDENCE RELATED TO THOSE
DOCUMENTS COVERED BY SUCH REQUESTS SHOULD HAVE BEEN EXCLUDED FROM THE
RECORD BY THE ADMINISTRATIVE LAW JUDGE PURSUANT TO SECTION 206.7(E) OF
THE ASSISTANT SECRETARY'S REGULATIONS AND NOT CONSIDERED IN THE
DETERMINATION OF THIS MATTER. /4/
NOTING THAT IN HIS REPORT AND RECOMMENDATION THE ADMINISTRATIVE LAW
JUDGE RELIED ON CERTAIN WRITTEN AND ORAL EVIDENCE WHICH WAS RELATED TO
THE DOCUMENTS WHICH THE RESPONDENT REFUSED TO PRODUCE PURSUANT TO THE
ADMINISTRATIVE LAW JUDGE'S REQUEST TO PRODUCE, I SHALL REMAND THE CASE
TO THE ADMINISTRATIVE LAW JUDGE FOR THE PURPOSE OF ISSUING A
SUPPLEMENTAL REPORT AND RECOMMENDATIONS, WITHOUT CONSIDERING SUCH
RELATED EVIDENCE. IN THIS REGARD, BOTH PARTIES SHALL BE AFFORDED THE
OPPORTUNITY TO SUBMIT BRIEFS, AT A TIME SPECIFIED BY THE ADMINISTRATIVE
LAW JUDGE, ON THE ISSUE AS TO WHICH EVIDENCE IS RELATED TO THE SUBJECT
DOCUMENTS AS WELL AS THE EFFECT THE EXCLUSION OF SUCH EVIDENCE MAY HAVE
ON THE MERITS OF THE INSTANT CASE.
IT IS HEREBY ORDERED THAT THIS PROCEEDING BE, AND IT HEREBY IS,
REMANDED TO THE ADMINISTRATIVE LAW JUDGE FOR THE PURPOSE OF PREPARING A
SUPPLEMENTAL REPORT AND RECOMMENDATION CONSISTENT WITH THE ABOVE
DECISION, AND SUBMITTING SUCH SUPPLEMENTAL REPORT AND RECOMMENDATIONS TO
THE ASSISTANT SECRETARY IN ACCORDANCE WITH SECTION 203.22 OF THE
ASSISTANT SECRETARY'S REGULATIONS.
DATED, WASHINGTON, D.C.
AUGUST 28, 1974
/1/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND NO MERIT
IN RESPONDENT'S CONTENTION THAT THE CONTINUED EXISTENCE OF THE REQUESTS
ISSUED BY THE ASSISTANT REGIONAL DIRECTOR DEPRIVED THE ADMINISTRATIVE
LAW JUDGE OF THE AUTHORITY TO ISSUE HIS OWN REQUESTS.
/2/ CF. UNITED STATES CUSTOMS SERVICE, REGION IX, CHICAGO, ILLINOIS,
A/SLMR NO. 210.
/3/ SECTION 206.7(E) OF THE ASSISTANT SECRETARY'S REGULATIONS
PROVIDES IN PERTINENT PART, "IF ANY PARTY, OFFICER OR OFFICIAL OF ANY
PARTY FAILS TO COMPLY WITH SUCH (REQUEST(S) . . . THE ASSISTANT REGIONAL
DIRECTOR FOR LABOR-MANAGEMENT SERVICES, HEARING OFFICER, ADMINISTRATIVE
LAW JUDGE, OR THE ASSISTANT SECRETARY MAY DISREGARD ALL RELATED EVIDENCE
OFFERED BY THE PARTY FAILING TO COMPLY, OR TAKE SUCH OTHER ACTION AS MAY
BE APPROPRIATE."
/4/ WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION
THAT, NOTWITHSTANDING THE FACT THAT THE EVIDENCE ESTABLISHED THE
RESPONDENT DID NOT VIOLATE THE ORDER WHEN IT REFUSED TO PROMOTE BYRD,
THE RESPONDENT SHOULD BE ORDERED TO PROMOTE HIM BECAUSE OF ITS FAILURE
TO COMPLY WITH THE REQUESTS TO PRODUCE DOCUMENTS, IN MY VIEW, SUCH A
REMEDY BASED ON A FAILURE TO COMPLY WITH THE ASSISTANT SECRETARY'S
REGULATIONS IS PUNITIVE IN NATURE AND WOULD NOT EFFECTUATE THE PURPOSE
AND POLICIES OF THE ORDER. THEREFORE, I DO NOT ADOPT THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS AND RECOMMENDATIONS IN THIS REGARD.
IN THE MATTER OF
PUGET SOUND NAVAL SHIPYARD
DEPARTMENT OF THE NAVY
BREMERTON, WASHINGTON,
AND
BREMERTON METAL TRADES COUNCIL
ON BEHALF OF ITS AFFILIATE MEMBER
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 48, AFL-CIO,
H. TIM HOFFMAN
AVERBUCK & HOFFMAN
OAKLAND, CALIFORNIA 94612
STUART M. FOSS
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
WASHINGTON, D.C. 20390
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED MARCH 2, 1973 AND FILED MARCH 5, 1973.
IT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (2) OF THE
EXECUTIVE ORDER. THE VIOLATION WAS ALLEGED TO CONSIST OF PROMOTING
SEVERAL EMPLOYEES ON OR ABOUT SEPTEMBER 5, 1972, TO THE POSITION OF
METALS INSPECTOR "A" BUT NOT INCLUDING JAMES M. BYRD AMONG THOSE
PROMOTED BECAUSE OF HIS UNION ACTIVITIES.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. ON MARCH 26, 1973, THE RESPONDENT FILED
WITH THE ASSISTANT REGIONAL DIRECTOR (THEN THE REGIONAL ADMINISTRATOR) A
MOTION TO DISMISS. ON AUGUST 30, 1973 THE ASSISTANT REGIONAL DIRECTOR
ISSUED A NOTICE OF HEARING TO BE HELD ON OCTOBER 25, 1973 IN SEATTLE,
WASHINGTON. THE SAME DAY HE REFERRED THE MOTION TO DISMISS TO THE
ADMINISTRATIVE LAW JUDGE. BY AN AMENDED NOTICE OF HEARING THE PLACE OF
THE HEARING WAS CHANGED TO BREMERTON, WASHINGTON.
HEARINGS WERE HELD IN BREMERTON ON OCTOBER 25, OCTOBER 26, AND
NOVEMBER 13, 1973. BOTH SIDES WERE REPRESENTED BY COUNSEL. PURSUANT TO
EXTENSIONS OF TIME GRANTED THEREFOR, THE PARTIES FILED TIMELY BRIEFS ON
FEBRUARY 11, 1974.
THE HEARINGS IN THIS CASE WERE SCHEDULED BY THE NOTICE OF HEARINGS ON
AUGUST 30, 1973 TO BEGIN, AND DID BEGIN, ON OCTOBER 25, 1973. ON
FRIDAY, OCTOBER 19, 1973, COUNSEL FOR THE COMPLAINANT (WHOSE OFFICE IS
IN OAKLAND, CALIFORNIA) CALLED THE OFFICE OF THE ASSISTANT REGIONAL
DIRECTOR IN SAN FRANCISCO AND STATED THAT HE HAD RECENTLY BEEN RETAINED
AND WANTED SOME REQUESTS FOR THE PRODUCTION OF DOCUMENTS. THE PERSON TO
WHOM HE SPOKE TOLD HIM THAT THE ENTIRE PROFESSIONAL STAFF WAS OUT OF
TOWN; THAT THE FOLLOWING MONDAY (OCTOBER 22) WAS A FEDERAL LEGAL
HOLIDAY, AND THAT A MEMBER OF THE PROFESSIONAL STAFF WOULD CALL HIM BACK
ON TUESDAY. ON OCTOBER 23, 1973 AN OFFICIAL OF THE SAN FRANCISCO OFFICE
RETURNED THE CALL. WHEN TOLD WHAT COMPLAINANT'S COUNSEL WANTED, HE SAID
HE WOULD HAVE THE REQUESTS MADE OUT AND SIGNED IN BLANK AND SENT TO THE
OFFICE OF COUNSEL FOR THE COMPLAINANT, AND THAT COMPLAINANT'S COUNSEL
COULD FILL IN THE NAMES OF THE WITNESSES AND DOCUMENTS REQUESTED.
COMPLAINANT'S COUNSEL SENT FOR THE BLANK REQUESTS, SIGNED BY THE
ASSISTANT REGIONAL DIRECTOR, AND RECEIVED THEM THE SAME DAY, OCTOBER 23,
1973.
COMPLAINANT'S COUNSEL FILLED IN SIX BLANK REQUESTS, THREE IN THE FORM
OF REQUESTS TO SPECIFIED INDIVIDUALS TO APPEAR AT THE HEARING IN
BREMERTON, WASHINGTON AT 10:00 A.M. ON OCTOBER 25, 1973 AND THREE OTHERS
IN THE FORM OF REQUESTS TO CERTAIN INDIVIDUALS TO APPEAR AND BRING WITH
THEM DOCUMENTS DESCRIBED THEREIN. THE NEXT DAY, OCTOBER 24, THE
REQUESTS WERE SERVED ON RESPONDENT AT 4:00 P.M. THE RESPONDENT'S
OFFICIAL BUSINESS DAY ENDED AT 4:30 P.M. THE REQUESTS WERE THAT THE
INDIVIDUALS APPEAR AT 10:00 A.M. OCTOBER 25.
AFTER THE OPENING OF THE HEARING ON OCTOBER 25, THE RESPONDENT FILED
WITH ME A COPY OF A MOTION TO QUASH THE REQUESTS TO PRODUCE SIGNED BY
THE ASSISTANT REGIONAL DIRECTOR. A COPY HAD BEEN SERVED ON THE
COMPLAINANT THE EVENING BEFORE. THE MOTION TO QUASH WAS BASED ON THE
GROUNDS THAT THEY WERE NOT ISSUED IN ACCORDANCE WITH THE REGULATIONS
(SECTION 206.7), THAT THEY ALLOWED INSUFFICIENT TIME FOR COMPLIANCE,
THAT THE REQUESTS FOR PRODUCTION OF DOCUMENTS WERE A "FISHING
EXPEDITION", AND THAT THE REQUESTS WERE SERVED ON THE WRONG PERSONS.
THIS LAST GROUND WAS LATER WAIVED.
SECTION 206.7 OF THE REGULATIONS PROVIDED IN PART AT THE TIME HERE
PERTINENT:
"(A) REGIONAL ADMINISTRATORS, HEARING OFFICERS, OR HEARING EXAMINERS,
AS APPROPRIATE, UPON THEIR OWN MOTION, OR UPON MOTION OF ANY PARTIES TO
A PROCEEDING, MAY ISSUE A REQUEST FOR APPEARANCE OF WITNESSES OR REQUEST
FOR PRODUCTION OF DOCUMENTS AT A HEARING HELD PURSUANT TO PARTS 202,
203, AND 205 OF THIS CHAPTER.
"(B) A PARTY'S MOTION TO A REGIONAL ADMINISTRATOR SHALL BE IN WRITING
AND FILED WITH THE REGIONAL ADMINISTRATOR NOT LESS THAN TEN (10) /1/
DAYS PRIOR TO THE OPENING OF A HEARING OR WITH A HEARING OFFICER OR
HEARING EXAMINER DURING THE HEARING, AND SHALL NAME AND IDENTIFY THE
WITNESS(ES) OR DOCUMENT(S) SOUGHT, OR BOTH, AND STATE THE REASONS
THEREFOR. SIMULTANEOUSLY WITH THE FILING OF THE MOTION WITH THE
REGIONAL ADMINISTRATOR, COPIES SHALL BE SERVED ON THE OTHER PARTIES AND
A WRITTEN STATEMENT OF SUCH SERVICE SHALL BE FILED WITH THE REGIONAL
ADMINISTRATOR.
"(C) WITHIN FIVE (5) DAYS AFTER SERVICE OF THE MOTION, A PARTY MAY
FILE ITS OBJECTION TO THE MOTION WITH THE REGIONAL ADMINISTRATOR AND
STATE ITS REASONS THEREFOR. SIMULTANEOUSLY WITH THE FILING OF THE
OBJECTION WITH THE REGIONAL ADMINISTRATOR, COPIES SHALL BE SERVED ON THE
OTHER PARTIES AND A WRITTEN STATEMENT OF SUCH SERVICE SHALL BE FILED
WITH THE REGIONAL ADMINISTRATOR."
AT THE HEARING I RULED THAT IT WAS NOT MY FUNCTION TO REVIEW THE
ACTIONS OF THE ASSISTANT REGIONAL DIRECTOR; THAT I DID NOT KNOW WHY HE
ACTED AS HE DID AND WAS NOT THEN IN A POSITION TO ASCERTAIN HIS REASONS.
THEREFORE, I DENIED THE MOTION TO QUASH. HOWEVER, SINCE IT WAS WITHIN
MY FUNCTION TO PASS ON WHAT SANCTIONS, IF ANY, SHOULD BE IMPOSED FOR
NON-COMPLIANCE, I ANNOUNCED THAT I WOULD NOT IMPOSE ANY SANCTION FOR
NONCOMPLIANCE WITH CERTAIN PARTS OF THE REQUESTS TO PRODUCE DOCUMENTS
AND WOULD RESERVE JUDGMENT ON WHAT SANCTIONS, IF ANY, TO IMPOSE FOR NOT
COMPLYING WITH THE REMAINDER OF THE REQUESTS TO PRODUCE ISSUED BY THE
ASSISTANT REGIONAL DIRECTOR.
SUBSEQUENTLY THE RESPONDENT STATED THAT IT WOULD COMPLY WITH THE
REQUESTS TO PRODUCE WITNESSES BUT WOULD NOT COMPLY WITH THE REQUESTS TO
PRODUCE DOCUMENTS ON THE GROUND THAT THEY WERE VOID FOR NOT HAVING BEEN
ISSUED IN COMPLIANCE WITH SECTIONS 206.7(B) AND (C). /2/ THE REFUSAL TO
PRODUCE TE DOCUMENTS AT THE HEARING PURSUANT TO THE REQUESTS WAS NOT ON
THE GROUND THAT THERE WAS INADEQUATE TIME TO DO SO BUT ON THE GROUND
THAT THE REQUESTS WERE VOID. HOWEVER, IT STATED THAT IT INTENDED TO
OFFER SOME OF THE REQUESTED DOCUMENTS IN EVIDENCE AS PART OF
RESPONDENT'S CASE.
THEREAFTER THE COMPLAINANT MOVED THAT PURSUANT TO SECTIONS 206.7(A)
AND (B) THE ADMINISTRATIVE LAW JUDGE ISSUE A REQUEST FOR THE PRODUCTION
OF THE SAME DOCUMENTS AS HAD BEEN REQUESTED IN THE REQUESTS OF THE
ASSISTANT REGIONAL DIRECTOR. THE RESPONDENT DID NOT OPPOSE THE GRANTING
OF THE MOTION ON THE GROUND THAT THERE WOULD BE INSUFFICIENT TIME TO
COMPLY WITH SUCH REQUESTS BY THE TIME THE HEARING BEGAN ON THE MERITS;
I MADE IT PLAIN I WOULD BE SYMPATHETIC WITH SUCH A CONTENTION. THE ONLY
GROUNDS OF OPPOSITION WERE THAT I WAS WITHOUT JURISDICTION TO ISSUE SUCH
REQUESTS WHILE THE REQUESTS OF THE ASSISTANT REGIONAL DIRECTOR WERE
OUTSTANDING AND NOT COMPLIED WITH /3/ AND THAT THE REGULATIONS PERMITTED
MOVING FOR THE ISSUANCE OF SUCH REQUESTS BY THE ASSISTANT REGIONAL
DIRECTOR OR THE ADMINISTRATIVE LAW JUDGE BUT NOT BOTH. /4/4 I GRANTED
THE MOTION AND MADE THE REQUESTS. /5/
THE RESPONDENT AGREED TO PRODUCE, AND DID PRODUCE, THE WITNESSES.
BUT IT ADHERED TO ITS POSITION NOT TO PRODUCE THE DOCUMENTS, EXCEPT SUCH
OF THEM AS IT CHOSE TO INTRODUCE AS PART OF ITS OWN CASE. SUCH OF THE
DOCUMENTS AS WERE PRODUCED WERE PRODUCED ONLY AS PART OF RESPONDENT'S
DEFENSE.
ALTHOUGH I RULED THAT THE REQUESTS OF THE ASSISTANT REGIONAL DIRECTOR
WERE NOT NULLITIES (OR, AS RESPONDENT CONTENDED, "VOID AB INITIO") ITS
POSITION THAT THEY WERE INVALID IS NOT DEVOID OF ANY MERIT. RESPECTABLE
AUTHORITY COULD BE CITED ON EITHER SIDE OF THAT QUESTION. WHICH
PROCEDURAL STEPS ARE JURISDICTIONAL PREREQUISITES TO FURTHER STEPS, AND
WHAT TIME LIMITATIONS ARE JURISDICTIONAL, ARE SELDOM CLEAR. THE WIDE
DISPARITY BETWEEN THE PROCEDURE SPECIFIED FOR OBTAINING REQUESTS FROM AN
ASSISTANT REGIONAL DIRECTOR AND THE PROCEDURE FOR OBTAINING REQUESTS
FROM AN ADMINISTRATIVE LAW JUDGE INDICATES THAT COMPLIANCE WITH THE
FORMER IS NOT JURISDICTIONAL. BUT THE QUESTION IS NOT FREE OF DOUBT.
HENCE I WOULD IMPOSE ONLY A SLIGHT SANCTION FOR NONCOMPLIANCE WITH THE
REQUESTS OF THE ASSISTANT REGIONAL DIRECTOR. I HAVE LITTLE DOUBT OF THE
SINCERITY OF THE REFUSAL TO COMPLY WITH THOSE REQUESTS.
THE REFUSAL TO COMPLY WITH THE REQUESTS OF THE ADMINISTRATIVE LAW
JUDGE STANDS ON A DIFFERENT FOOTING. THE ARGUMENT THAT I WAS WITHOUT
JURISDICTION TO MAKE THE REQUESTS BECAUSE THAT ASSISTANT REGIONAL
DIRECTOR'S REQUESTS WERE OUTSTANDING AND NOT COMPLIED WITH IS VIRTUALLY
INCOMPREHENSIBLE. THE RESPONDENT TOOK THE POSITION THAT IF I WOULD
QUASH THE REQUESTS OF THE ASSISTANT REGIONAL DIRECTOR I WOULD THEN HAVE
JURISDICTION TO ISSUE MY OWN REQUESTS. BUT THE RESPONDENT'S ARGUMENT
WAS THAT THE REQUESTS FROM THE REGIONAL OFFICE WERE NULLITIES, OR, AS HE
STATED IT A NUMBER OF TIMES, "VOID AB INITIO." IT IS DIFFICULT TO
COMPREHEND THE RATIONALE BEHIND AN ARGUMENT THAT THE EXISTENCE OF A VOID
DOCUMENT DEPRIVES THE ADMINISTRATIVE LAW JUDGE OF JURISDICTION HE WOULD
OTHERWISE HAVE. I FIND THIS ARGUMENT TO BE WITHOUT SUBSTANCE.
THE ARGUMENT THAT SECTION 206.7 OF THE REGULATIONS AUTHORIZES MOTIONS
FOR REQUESTS TO BE MADE TO AN ASSISTANT REGIONAL DIRECTOR OR TO AN
ADMINISTRATIVE LAW JUDGE, BUT NOT BOTH, IS OF A SIMILAR NATURE. THE
RESPONDENT'S POSITION IS THAT THE MOTION MADE TO THE REGIONAL OFFICE WAS
INVALID BECAUSE NOT IN WRITING AND NOT MADE WITH SERVICE AND NOTICE AS
PRESCRIBED IN THE REGULATIONS. IT IS DIFFICULT TO COMPREHEND THE
RATIONALE BEHIND AN ARGUMENT THAT AN INVALID MOTION MADE TO THE REGIONAL
OFFICE RENDERS INVALID WHAT WOULD OTHERWISE BE A VALID MOTION MADE TO AN
ADMINISTRATIVE LAW JUDGE WHO COULD ENTERTAIN THE MOTION. I FIND THIS
ARGUMENT TO BE WITHOUT SUBSTANCE. ALSO, I DO NOT READ THE OPENING WORDS
OF SECTION 206.7(A) TO BE IN THE DISJUNCTIVE. THE PHRASE "REGIONAL
ADMINISTRATORS, HEARING OFFICERS, OR HEARING EXAMINERS" DOES NOT
REASONABLY MEAN THAT THE MOTION MAY PROPERLY BE ADDRESSED TO ONLY ONE OF
THEM IN THE SAME CASE. I CONCLUDE THAT IF A MOTION IS MADE TO ONE AND
IS INEFFECTUAL, ANOTHER MOTION MAY BE MADE TO WHO HAS AUTHORITY TO
ENTERTAIN IT.
ADDITIONALLY, AN ADMINISTRATIVE LAW JUDGE IS GIVEN AUTHORITY BY
SECTION 206.7(A) TO ISSUE REQUESTS ON HIS OWN MOTION. THE EXISTENCE OF
SUCH AUTHORITY WOULD GO FAR TOWARD VALIDATING A REQUEST FOR PRODUCTION
OF DOCUMENTS ISSUED AFTER AN INVALID APPLICATION THEREFOR. BUT I HAVE
FOUND THAT THE APPLICATION WAS NOT INVALID.
WITH RESPECT TO THE REFUSAL TO COMPLY WITH THE REQUESTS FOR
PRODUCTION OF DOCUMENTS, THERE REMAINS THE QUESTION OF WHAT SANCTIONS
SHOULD BE IMPOSED.
THE REQUESTS TO PRODUCE WITNESSES AND DOCUMENTS ISSUED BY THE
ASSISTANT REGIONAL DIRECTOR ARE IN EVIDENCE AS EXHIBITS C1 THROUGH C6.
THE REQUESTS ISSUED BY THE ADMINISTRATIVE LAW JUDGE WERE ORAL; THEY
ADOPTED THE REQUESTS ISSUED BY THE REGIONAL OFFICE WITH SPECIFIED
EXCEPTIONS.
IN THE COURSE OF PRESENTING ITS EVIDENCE IN SUPPORT OF THE DEFENSE TO
THE COMPLAINT, THE RESPONDENT OFFERED A NUMBER OF EXHIBITS IN EVIDENCE.
SOME OF THEM WERE DOCUMENTS CALLED FOR BY THE REQUESTS WHICH THE
RESPONDENT REFUSED TO PRODUCE PURSUANT TO THE REQUESTS BUT LATER OFFERED
AS PART OF ITS EVIDENCE. EXHIBITS R3, R5, AND R9 WERE CALLED FOR BY
PARAGRAPH 3 OF EXHIBIT C5. EXHIBIT R10 WAS CALLED FOR BY PARAGRAPH 5 OF
EXHIBIT C5. EXHIBITS R11 THROUGH R16 WERE CALLED FOR BY PARAGRAPH 3 OF
EXHIBIT C5. OTHER EXHIBITS OFFERED BY THE RESPONDENT ARE CLAIMED BY THE
COMPLAINANT TO HAVE BEEN CALLED FOR BY THE REQUESTS BUT I FIND THAT
THESE ADDITIONAL RESPONDENT EXHIBITS EITHER WERE NOT CALLED FOR OR WERE
CALLED FOR ONLY BY REQUESTS OF THE ASSISTANT REGIONAL DIRECTOR WITH
RESPECT TO WHICH I HELD I WOULD NOT IMPOSE ANY SANCTION FOR FAILURE TO
PRODUCE.
SECTION 206.7(E) OF THE REGULATIONS PROVIDES IN PART:
". . . IF ANY PARTY, OR OFFICER, OR OFFICIAL OF ANY PARTY FAILS TO
COMPLY WITH SUCH REQUEST(S). . .THE REGIONAL ADMINISTRATOR, HEARING
OFFICER, HEARING EXAMINER, OR THE ASSISTANT SECRETARY MAY DISREGARD ALL
RELATED EVIDENCE OFFERED BY THE PARTY FAILING TO COMPLY OR TAKE SUCH
OTHER ACTION AS MAY BE APPROPRIATE."
THE COMPLAINANT OBJECTED TO THE RECEIPT IN EVIDENCE OF EXHIBITS R3,
5, AND 9 THROUGH 16 ON THE GROUND THAT THEY HAD BEEN CALLED FOR BY THE
REQUESTS FOR PRODUCTION AND HAD NOT BEEN PRODUCED PURSUANT TO THE
REQUESTS. I RECEIVED THOSE EXHIBITS IN EVIDENCE WITH THE EXPRESS CAVEAT
THAT IN WRITING MY REPORT AND RECOMMENDATION I MIGHT DECIDE, UNDER THE
ABOVE-QUOTED PROVISION, NOT TO GIVE THEM ANY CONSIDERATION.
I NOW DECIDE NOT TO GIVE EXHIBITS 3, 5, AND 9 THROUGH 16 ANY
CONSIDERATION. THE FACTS FOUND BELOW ARE FOUND WITHOUT CONSIDERATION OF
THOSE EXHIBITS. HOWEVER, EVEN DISREGARDING THOSE EXHIBITS BUT
CONSIDERING RELATED TESTIMONY, AS IS SEEN BELOW, I CONCLUDE THAT THE
COMPLAINANT HAS FAILED, SO FAR AS THE RECORD SHOWS THE FACTS, TO SUSTAIN
ITS BURDEN OF PROOF UNDER SECTION 203.14 OF THE REGULATIONS. THE
REASONS FOR CONSIDERING THE RELATED TESTIMONY, AND THE QUESTION OF WHAT,
IF ANY, FURTHER SANCTION SHOULD BE IMPOSED FOR FAILURE TO COMPLY WITH
THE REQUESTS OF THE ADMINISTRATIVE LAW JUDGE, ARE DISCUSSED BELOW UNDER
THE CAPTION DISCUSSION AND CONCLUSIONS.
JAMES M. BYRD WAS EMPLOYED BY THE RESPONDENT ON JANUARY 27, 1969 AS A
METALS INSPECTOR "B" IN THE NONDESTRUCTIVE TESTING DIVISION. THE GRADES
OF METALS INSPECTOR, IN ASCENDING ORDER, ARE METALS INSPECTOR HELPER,
METALS INSPECTOR "C", METALS INSPECTOR "B", AND METALS INSPECTOR "A".
CLASSIFICATIONS OF METALS INSPECTOR HIGHER THAN "A" ARE SUPERVISORY
POSITIONS.
PRIOR TO HIS EMPLOYMENT BY THE RESPONDENT SHIPYARD, BYRD HAD BEEN
EMPLOYED AS A METALS INSPECTOR BY THE PEARL HARBOR NAVAL SHIPYARD. HE
COMMENCED HIS EMPLOYMENT THERE IN OCTOBER 1964 AS A HELPER. IN APRIL
1965 HE WAS PROMOTED TO METALS INSPECTOR "C", IN NOVEMBER 1965 HE WAS
PROMOTED TO METALS INSPECTOR "B", AND ON DECEMBER 1, 1968 HE WAS
PROMOTED TO METALS INSPECTOR "A". ON DECEMBER 13, 1968 HE RESIGNED FROM
HIS EMPLOYMENT AT THE PEARL HARBOR NAVAL SHIPYARD TO RETURN TO THE
CONTINENTAL UNITED STATES.
TO BE QUALIFIED AS A METALS INSPECTOR, AN EMPLOYEE NEEDS A DEGREE OF
EXPERTISE IN SEVERAL FIELDS. AN EMPLOYEE'S QUALIFICATION. BYRD WAS
QUALIFIED AT BOTH PEARL HARBOR NAVAL SHIPYARD AND PUGET SOUND NAVAL
SHIPYARD AS A NUCLEAR AND NON-NUCLEAR RADIOGRAPHER, IN MAGNETIC PARTICLE
INSPECTION METHOD, AND IN NUCLEAR AND NON-NUCLEAR LIQUID PENETRANT
INSPECTION METHOD. IN ADDITION, HE WAS QUALIFIED AT PUGET SOUND TO BE
RADIOGRAPHER IN CHARGE, AND SOMETIMES ACTED IN THAT CAPACITY. ALTHOUGH
THE STANDARDS FOR THE GRADE OF METALS INSPECTOR "A" REQUIRED SOMEWHAT
MORE VERSATILITY AT PUGET SOUND THAN AT PEARL HARBOR, BYRD WAS QUALIFIED
FOR THAT GRADE AT EITHER SHIPYARD.
IN JUNE 1969 BYRD JOINED LOCAL 48 OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES. LOCAL 48 IS A COMPONENT OF BREMERTON METAL TRADES
COUNCIL, AFL-CIO. THE COUNCIL IS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN OF RESPONDENT'S EMPLOYEES, INCLUDING METALS INSPECTORS. BYRD
WAS EXECUTIVE VICE PRESIDENT OF LOCAL 48 IN 1972, CHIEF STEWARD FROM
LATE 1970 THROUGH 1972, AND A SHOP STEWARD THEREAFTER. IN HIS CAPACITY
AS CHIEF STEWARD, BYRD PROCESSED ABOUT TWELVE INFORMAL GRIEVANCES, ABOUT
HALF OF THEM TO THE FIRST LINE SUPERVISOR AND DEPARTMENT HEAD, AND ABOUT
HALF OF THOSE TO THE SHIPYARD COMMANDER. STEWARDS COULD ENGAGE IN UNION
BUSINESS DURING WORKING HOURS. THEY WERE ALWAYS, UPON REQUEST, GIVEN
TIME TO DO THIS BUT NOT ALWAYS AT THE TIMES REQUESTED. BYRD SPENT ABOUT
FOUR HOURS PER WEEK OF WORKING TIME ON UNION BUSINESS. THE CHIEF
STEWARD OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS, ANOTHER
COMPONENT OF THE METAL TRADES COUNCIL, SPENT ABOUT HALF HIS WORKING TIME
ON UNION BUSINESS.
IN AUGUST 1969 THERE WERE PROMOTIONS TO METALS INSPECTOR "A". BYRD
APPLIED FOR THE PROMOTION. HE WAS RATED INELIGIBLE AND NOT PROMOTED.
HE FILED AN INFORMAL GRIEVANCE FOR NOT HAVING BEEN PROMOTED. LOCAL 48
DECLINED TO PURSUE THE GRIEVANCE AND BYRD ENLISTED THE ASSISTANCE OF A
VICE PRESIDENT OF A.F.G.E., MORTEN J. DAVIS. THEY WENT TO THE
INDUSTRIAL RELATIONS OFFICE, AND SPOKE TO JAMES RICH. RICH SAID THAT
SINCE BYRD HAD BEEN A METALS INSPECTOR "A" AT PEARL HARBOR, ALTHOUGH
BRIEFLY, HIS RATING AS INELIGIBLE FOR THAT POSITION AT PUGET SOUND HAD
BEEN A MISTAKE. HE SAID THAT BECAUSE OF THE ERROR THE NEXT TIME THERE
WERE PROMOTIONS TO METALS INSPECTOR "A" BYRD WOULD BE GIVEN "PRIORITY
CONSIDERATION." A FORMAL GRIEVANCE WAS NOT PRESENTED.
THE NEXT TIME THERE WERE PROMOTIONS TO METALS INSPECTOR "A" WAS IN
SEPTEMBER 1972. BYRD WAS NOT GIVEN PRIORITY CONSIDERATION. THE RECORD
DOES NOT SHOW WHAT POSITION RICH HELD IN THE INDUSTRIAL RELATIONS OFFICE
OR THAT HE EVER MADE A RECORD OR TOLD ANYONE THAT BYRD SHOULD BE GIVEN
PRIORITY CONSIDERATION BECAUSE OF THE ERROR IN AUGUST 1969. THERE IS
NOTHING IN THE RECORD THAT INDICATES THAT THE ERROR, OR RICH'S NOT
TELLING ANYONE THAT BYRD SHOULD BE GIVEN PRIORITY CONSIDERATION THE NEXT
TIME BECAUSE OF THE ERROR, WAS MOTIVATED BY BYRD'S UNION ACTIVITIES. AT
THE TIME BYRD HAD BEEN A MEMBER OF LOCAL 48 FOR TWO MONTHS.
THE INCIDENT OF FEBRUARY 4, 1971
ON FEBRUARY 4, 1971, IN THE COURSE OF PERFORMING HIS WORK AS A METALS
INSPECTOR "B", BYRD WAS INSPECTING A HEAVY CASTING. TO COMPLETE HIS
INSPECTION IT WAS NECESSARY THAT THE CASTING BE INVERTED. HE SPOKE TO
LYLE CLARK, HIS IMMEDIATE SUPERVISOR AT THE TIME. BYRD CALLED ALFRED D.
MALLOY, A UNION STEWARD, TO BE PRESENT. DURING THE DISCUSSION REYNOLDS
E. LEWIS, SENIOR SUPERVISOR, INSPECTOR OF METALS, CAME BY ON A NORMAL
TOUR OF HIS WORK AREA. LEWIS WAS BYRD'S THIRD TIER SUPERVISOR. CLARK
OFFERED BYRD HELP IN TURNING OVER THE CASTING BUT BYRD SAID HE THOUGHT
IT WAS RIGGER'S WORK. IN THE COURSE OF THE CONVERSATION CLARK AND
MALLOY TURNED OVER THE CASTING.
AFTER CLARK LEFT THE DISCUSSION, LEWIS (THE THIRD TIER SUPERVISOR),
CONTINUED TALKING WITH BYRD AND MALLOY. LEWIS MADE A COMMENT WHICH BYRD
AND MALLOY UNDERSTOOD TO MEAN THAT WHEN THE TIME CAME FOR RATING METALS
INSPECTORS "B" FOR PROMOTION TO "A" BYRD COULD NOT BE WELL RATED BECAUSE
HE WAS ABSENT SO MUCH OF THE TIME ON UNION BUSINESS AND THEREFORE NEEDED
MORE THAN NORMAL SUPERVISION. NEEDING "MORE THAN NORMAL SUPERVISION" IS
ONE OF THE STANDARD CRITERIA FOR EVALUATING PEOPLE FOR PROMOTION TO
METALS INSPECTOR "A". LEWIS TESTIFIED THAT HE DID SAY THAT BYRD
REQUIRED MORE THAN NORMAL SUPERVISION; HE HAD BEEN SO TOLD BY BYRD'S
IMMEDIATE SUPERVISORS. LEWIS TESTIFIED THAT HE HAD NO RECOLLECTION OF
HIS HAVING SAID THAT HIS VIEW WAS PREDICATED IN ANY PART ON BYRD'S UNION
ACTIVITIES, AND IF WHAT HE SAID WAS SO UNDERSTOOD, IT WAS NOT SO
INTENDED.
IN CORROBORATION OF BYRD'S RECOLLECTION OF THAT CONVERSATION,
COMPLAINANT INTRODUCED EXHIBIT C8. THAT WAS A PHOTOCOPY (THE ORIGINAL
WAS DISPLAYED AT THE HEARING) OF A PAGE IN A SMALL NOTEBOOK THAT BYRD
CARRIED WITH HIM IN WHICH HE RECORDED ALL SORTS OF MATTERS THAT OCCURRED
THAT HE WANTED TO RECORD, INCLUDING SUCH MATTERS AS HIS WIFE TELLING HIM
TO PICK UP A LOAF OF BREAD ON THE WAY HOME. EXHIBIT C8 WAS A NOTE HE
WROTE IN THAT NOTEBOOK WITHIN AN HOUR AFTER THE CONVERSATION ON FEBRUARY
4, 1971 AND PROMPTLY SHOWED TO MALLOY. IT IS HANDWRITTEN, AND READS AS
FOLLOWS:
"FEB. 4, 1971.
MR. LEWIS MADE THE STATEMENT THAT I REQUIRED MORE THAN NORMAL
SUPERVISION (BECAUSE OF UNION ACTIVITIES) AND THAT WHEN RATES CAME OUT
PEOPLE WHO DIDN'T REQUIRE MORE THAN NORMAL SUPERVISION WOULD BE RATED.
WITNESSED BY AL MALLOY, SHOP STEWARD."
BYRD TESTIFIED THAT THE PARENTHETICAL PHRASE "BECAUSE OF UNION
ACTIVITIES" WAS PLACED IN PARENTHESES BECAUSE THAT WAS HIS WAY OF
EMPHASIZING WORDS IN WHAT HE WROTE. IF THAT IS BYRD'S WAY OF
EMPHASIZING WORDS IN WHAT HE WRITES, IT IS AN EXTREMELY UNUSUAL FORM OF
EMPHASIS, IF NOT UNIQUE TO BYRD.
I FIND THAT LEWIS ON FEBRUARY 4, 1971 SAID TO BYRD THAT BYRD WOULD
NOT BE RATED HIGHLY FOR PROMOTION TO METALS INSPECTOR "A", WHEN THE
OCCASION SHOULD ARISE, BECAUSE BYRD REQUIRED MORE THAN NORMAL
SUPERVISION; AND THAT ALTHOUGH LEWIS DID NOT SAY OR MEAN THAT BYRD'S
NEED FOR MORE THAN NORMAL SUPERVISION WAS BECAUSE OF BYRD'S UNION
ACTIVITIES, BYRD AND MALLOY UNDERSTOOD LEWIS SO TO IMPLY.
MALLOY, THE SHOP STEWARD, TESTIFIED THAT HE KNEW LEWIS FAIRLY WELL,
AND THAT HE BELIEVED THAT LEWES WAS NEITHER OPPOSED TO NOR IN FAVOR OF
UNIONS, AND THAT LEWIS WAS NEUTRAL ON THE MATTER. LEWIS TESTIFIED THAT
HE THOUGHT UNIONS WERE NECESSARY. BEFORE HE REACHED HIS PRESENT
POSITION, HE HAD BEEN A MEMBER OF TWO UNIONS, ONE FOR TWO AND A HALF
YEARS AND THE OTHER FOR EIGHT YEARS. IN THE LATTER UNION HE HAD BEEN
TREASURER FOR THREE YEARS. I FIND THAT LEWIS DID NOT SAY OR MEAN TO
IMPLY THAT BYRD, SHOULD THE OCCASION ARISE, WOULD NOT BE WELL RATED FOR
PROMOTION BECAUSE OF HIS UNION ACTIVITIES, AND THAT LEWIS DID NOT HAVE
AN ANTI-UNION ANIMUS. I FIND FURTHER THAT IF LEWIS BELIEVED THAT BYRD
SHOULD NOT BE HIGHLY RATED FOR PROMOTION, BECAUSE OF HIS UNION
ACTIVITIES OR FOR ANY OTHER REASON, THERE IS NOTHING IN THE RECORD TO
SUPPORT A CONCLUSION THAT HE EVER COMMUNICATED SUCH VIEW TO ANYONE OTHER
THAN BYRD AND MALLOY.
THE SEPTEMBER 1972 PROMOTIONS
IN AUGUST 1972 THE RESPONDENT DECIDED TO PROMOTE SIX METALS
INSPECTORS "B" TO METALS INSPECTORS "A". NORMALLY ABOUT ONE-THIRD OF
THE 75 METALS INSPECTORS IN THE NONDESTRUCTIVE TESTING DIVISION WERE
METALS INSPECTORS "A", BUT WITH THE INEVITABLE TURNOVER IN SO LARGE A
NUMBER, THE RATIO FLUCTUATED SOMEWHAT. ANNOUNCEMENT WAS MADE OF THE
PROPOSED PROMOTIONS AND 24 METALS INSPECTORS "B", INCLUDING BYRD, PUT IN
APPLICATIONS FOR THE PROMOTION. AT ABOUT THE SAME TIME ANNOUNCEMENT WAS
MADE OF PROPOSED PROMOTIONS TO METALS INSPECTOR "B".
IN RATING APPLICANTS FOR PROMOTION, TWO KINDS OF EVALUATION ARE MADE.
ONE, BY A "SUBJECT MATTER EXPERT", RATES THE VALUE OF THE PERTINENT
APPLICANT'S EXPERIENCE. THE OTHER RATING IS OF THE APPLICANT'S PERSONAL
QUALIFICATIONS AS DISTINGUISHED FROM HIS EXPERIENCE.
THE PROMOTIONS TO METALS INSPECTOR "A" WERE MADE ON SEPTEMBER 5,
1972. BYRD WAS NOT INCLUDED AMONG THE SIX PROMOTED. LEWIS WAS NEITHER
THE SUBJECT MATTER EXPERT ON THE PROMOTIONS TO METALS INSPECTOR "A" NOR
DID HE RATE THE APPLICANTS' PERSONAL QUALIFICATIONS. HE WAS THE SUBJECT
MATTER EXPERT ON THE PROMOTIONS TO METALS INSPECTOR "B", IN WHICH BYRD
WAS NOT INVOLVED. WHEN BYRD MADE SOME INQUIRIES AT THE INDUSTRIAL
RELATIONS OFFICE ABOUT THE PROMOTIONS, HE WAS TOLD BY SOME UNIDENTIFIED
PERSON THERE THAT LEWIS WAS THE SUBJECT MATTER EXPERT ON THE PROMOTIONS
TO METALS INSPECTOR "A". THIS WAS SIMPLY AN ERROR. LEWIS PLAYED NO
PART IN THE EVALUATING OR SELECTING OF APPLICANTS FOR PROMOTION TO
METALS INSPECTOR "A".
THOSE WHO RATED BYRD'S QUALIFICATIONS FOR PROMOTION WERE LYLE CLARK
AND JOSEPH L. MAGGI. CLARK HAD BEEN BYRD'S IMMEDIATE SUPERVISOR FOR TWO
YEARS AND MAGGI FOR PART OF THE REMAINING TIME BYRD HAD BEEN EMPLOYED.
CLARK WAS OF THE VIEW THAT WHILE BYRD HAD THE TECHNICAL CAPABILITIES
FOR BEING A GOOD METALS INSPECTOR "A", HE WAS DEFICIENT IN SOME ASPECTS
OF THE APPLICATION OF HIS ABILITIES. HE BELIEVED HE HAD MORE TROUBLE
THAN WITH OTHER INSPECTORS IN GETTING BYRD TO COMPLETE A JOB WITHOUT
COMING BACK TO HIM WITH MINOR AND EVEN PETTY QUESTIONS OR OTHER DETAILS,
THAT BYRD LACK INITIATIVE, AND THAT HE (CLARK) SPENT MUCH MORE TIME WITH
BYRD THAN WITH OTHER INSPECTORS FOR BYRD TO FINISH A JOB. HE RATED BYRD
POORLY ON ABILITY TO PERFORM HIS WORK WITHOUT MORE THAN NORMAL
SUPERVISION AND LESS THAN SATISFACTORY IN DEALING WITH OTHERS ON THE
JOB. SOME OTHER EMPLOYEES HAD COMPLAINED ABOUT WORKING WITH BYRD
BECAUSE THEY FELT HE RAISED TOO MANY PICAYUNE MATTERS.
MAGGI WAS ALSO OF THE VIEW THAT IN PERFORMING HIS WORK BYRD RAISED
TOO MANY MINOR PROBLEMS BUT IMPROVED AFTER MAGGI SPOKE TO HIM ABOUT IT.
BOTH CLARK AND MAGGI TESTIFIED, AND I FIND, THAT NEITHER LEWIS NOR
ANYONE ELSE SUGGESTED TO THEM OR SPOKE TO THEM ABOUT HOW THEY SHOULD
RATE BYRD, THAT THEY DID NOT KNOW ABOUT THE CONVERSATION OF FEBRUARY 4,
1971, OF LEWIS, BYRD, AND MALLOY, AND THAT THEY GAVE NO CONSIDERATION TO
BYRD BEING A UNION STEWARD OR BYRD'S OTHER UNION ACTIVITIES.
THE RATINGS BY THE SUPERVISORS OF THE 24 WHO WERE CONSIDERED FOR
PROMOTION TO METALS INSPECTOR "A" WERE EVALUATED BY A RATING PANAL OF
THREE MEMBERS. TWO OF THEM WERE THE SUBJECT MATTER EXPERTS FOR THE
PROMOTION. ONE OF THE TWO, ROBERT A. FLOMER, TESTIFIED. HE TESTIFIED
THAT LEWIS DID NOT INFLUENCE THEIR RATINGS OR TRY TO DO SO, BUT ON
ANOTHER OCCASION HAD SAID THAT INSPECTORS TAKING COMPENSATED TIME OFF
FROM WORK TO SPEND IT ON SUCH MATTERS AS THE UNION OR THE RECREATION
ASSOCIATION AFFECTED COSTS BY INCREASING OVERHEAD. FLOMER THOUGHT BYRD
WAS HIGHLY QUALIFIED AND GAVE HIM A HIGH SCORE FOR TECHNICAL ABILITY BUT
A LOWER SCORE FOR GETTING WORK DONE WITHOUT SUPERVISION. HE HAD REACHED
THAT CONCLUSION FROM BYRD'S RATINGS BY HIS SUPERVISORS AND FROM PERSONAL
OBSERVATION IN THE SHOP. HE TESTIFIED ALSO THAT BYRD TOO OFTEN WENT TO
HIS SUPERVISORS ON MATTERS HE SHOULD HAVE RESOLVED HIMSELF. HE HAD ALSO
HEARD COMPLAINTS BY MECHANICS WHO DID THE WORK BYRD INSPECTED THAT BYRD
WAS EXCESSIVELY INSISTENT ON LITERAL PERFECTION. LEWIS ALSO TESTIFIED
ABOUT SUCH COMPLAINTS.
OF THE 24 WHO WERE CONSIDERED FOR PROMOTION TO METALS INSPECTORS "A",
SEVENTEEN, INCLUDING BYRD, WERE RATED HIGHLY QUALIFIED, BUT BYRD WAS
RATED FIFTEENTH OF THE SEVENTEEN. SIX WERE PROMOTED. FOUR OF THEM WERE
QUALIFIED AS RADIOGRAPHERS-IN-CHARGE; IN BYRD'S OWN SHOP ONLY HE AND
LEWIS WERE SO QUALIFIED. ALL SIX HAD MORE SENIORITY THAN BYRD, BUT
SENIORITY IS NOT A FACTOR IN PROMOTION UNLESS EVERYTHING ELSE IS EQUAL.
THE SIX FINALLY SELECTED WERE THE SIX MOST HIGHLY RATED BY THE RATING
PANEL.
THE EVIDENCE IN THE RECORD.
THE PROBLEM IN THIS CASE IS NOT SIMPLY TO DETERMINE WHETHER BYRD WAS
BETTER QUALIFIED FOR PROMOTION THAN THE SIX WHO WERE PROMOTED (OR ANY
ONE OF THEM), AND THEREFORE SHOULD HAVE BEEN PROMOTED. WE DO NOT SIT IN
GENERAL REVIEW OF THE CONDUCT OF AN AGENCY OR AN ACTIVITY IN SELECTING
EMPLOYEES FOR PROMOTION. THE ISSUE IS MUCH NARROWER. THE COMPLAINT
ALLEGES A VIOLATION OF SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER
11491, AS AMENDED. THE ISSUE, THEN, IS TO DETERMINE WHETHER BYRD WAS
NOT PROMOTED TO INTERFERE WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE
OF A RIGHT ASSURED BY THE ORDER ("THE RIGHT, FREELY AND WITHOUT FEAR OF
PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION"),
OR TO DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
PROMOTION. IF NOT PROMOTING BYRD WAS THE RESULT OF ANYTHING ELSE,
HOWEVER REPREHENSIBLE OR MERITORIOUS, IT WAS NOT A VIOLATION OF THE
EXECUTIVE ORDER.
TO ASCERTAIN WHAT MOTIVATED BYRD'S NON-SELECTION FOR PROMOTION, LET
US LOOK AT WHAT THE OFFICIALS WHO PARTICIPATED IN THE SELECTION OF THOSE
TO BE PROMOTED DID, AND WHAT MOTIVATED THEM.
THE SELECTING OFFICIAL WAS COMMANDER HORWATH, THE QUALITY ASSURANCE
OFFICER. HE SELECTED THE SIX WHO WERE RATED THE BEST QUALIFIED BY THE
RATING PANEL. THERE IS NOT A WORK IN THE RECORD ABOUT COMMAND HORWATH
OTHER THAN THAT HE WAS THE QUALITY ASSURANCE OFFICER, DID THE SELECTING,
AND SELECTED THE SIX MOST HIGHLY RATED BY THE RATING PANEL. NO
VIOLATION OF THE EXECUTIVE ORDER CAN BE FOUND IN SUCH CONDUCT. IT DOES
NOT APPEAR THAT HE HAD A BIAS FOR OR AGAINST BYRD OR UNIONS OR UNION
ACTIVITIES.
NOR IS THERE ANYTHING TO INDICATE THAT ANY MEMBER OF THE RATING PANEL
ACTED IN CONTRAVENTION OF THE EXECUTIVE ORDER, EITHER AS MEMBERS OF THE
PANEL OR AS SUBJECT MATTER EXPERTS. THERE IS NOTHING TO INDICATE THAT
ANY OF THEM ACTED ON THE BASIS OF ANYTHING OTHER THAN THE RATINGS BEFORE
THEM AND THEIR SINCERE BELIEF OF THE RELATIVE MERITS OF THE PERSONS
BEING CONSIDERED. THAT ONE OR MORE OF THEM MAY HAVE, OR HAVE NOT,
DEPARTED FROM A STRICT APPLICATION OF THE FEDERAL PERSONNEL MANUAL IS
IRRELEVANT TO THIS PROCEEDING SO LONG AS THE DEPARTURE, IF THERE WAS
ANY, WAS NOT MOTIVATED BY UNION CONSIDERATIONS OR FORESEEABLY AND
REASONABLY COULD HAVE HAD AN IMPACT OR UNION MEMBERSHIP OR ACTIVITIES.
THE SUPERVISORS WHO RATED BYRD'S ABILITIES WERE NOT SHOWN TO HAVE ANY
IMPROPER MOTIVES OR OTHERWISE TO HAVE ACTED IMPROPERLY. THERE IS
NOTHING IN THE RECORD TO INDICATE THAT CLARK OR MAGGI HAD ANY BIAS WITH
RESPECT TO UNIONS OR WERE INFLUENCED IN ANY PART BY BYRD'S UNION
ACTIVITIES. MAGGI, INDEED, APPEARED TO BE SYMPATHETIC TOWARD BYRD; HE
SIMPLY THOUGHT THAT WHILE BYRD WAS WELL QUALIFIED SOME OTHERS WERE
BETTER QUALIFIED. THERE IS NOTHING TO INDICATE SUCH BELIEF WAS NOT
SINCERE. CLARK WAS OF THE VIEW THAT WHILE BYRD HAD EXCELLENT TECHNICAL
QUALIFICATIONS HE WAS LACKING IN INITIATIVE, WAS OVERLY TECHNICAL IN THE
APPLICATION OF INSPECTION STANDARDS, CREATED DISSATISFACTION AMONG OTHER
EMPLOYEES, AND REQUIRED TOO MUCH OF CLARK'S TIME TO GET A JOB DONE.
THERE IS NOTHING IN THE RECORD TO INDICATE SUCH VIEWS WERE NOT SINCERELY
HELD BY CLARK AND VERY LITTLE TO INDICATE THEY WERE NOT JUSTIFIED.
OTHERS APPARENTLY SHARED AT LEAST SOME OF THOSE VIEWS.
THE ONLY PERSON ABOUT WHOM THERE IS ANY EVIDENCE THAT HE EXPRESSED
VIEWS WHICH, IF CARRIED OUT, WOULD BE VIOLATIVE OF SECTION 19(A)(1) OR
19(A)(2) WAS LEWIS, BYRD'S THIRD TIER SUPERVISOR. IT WAS TESTIFIED BY
BYRD AND MALLOY THAT ON FEBRUARY 4, 1971 LEWIS SAID THAT WHEN PROMOTIONS
TO METALS INSPECTOR "A" CAME AROUND BYRD WOULD NOT BE RATED QUALIFIED
BECAUSE HE REQUIRED MORE THAN NORMAL SUPERVISION BECAUSE OF HIS UNION
ACTIVITIES. I HAVE FOUND THAT LEWIS DID NOT MAKE OR INTEND SUCH
STATEMENT ALTHOUGH BYRD AND MALLOY UNDERSTOOD HIM SO TO IMPLY.
BUT EVEN IF LEWIS DID MAKE SUCH STATEMENT, THE SUBSEQUENT
NON-PROMOTION OF BYRD WOULD NOT BE A VIOLATION OF THE EXECUTIVE ORDER.
/6/ FIRST, IT WAS AN ISOLATED INSTANCE OF AN EXPRESSION OF ANTI-UNION
VIEWS NINETEEN MONTHS BEFORE THE ALLEGED DISCRIMINATORY ACTION. AND
SECOND, LEWIS WAS NOT SHOWN TO HAVE HAD ANYTHING TO DO WITH THE
PROMOTIONS NINETEEN MONTHS LATER, AND MUCH TO SHOW THAT HE DID NOT.
THOSE WHO DID PARTICIPATE IN THE PROMOTION ACTIONS UNIFORMLY TESTIFIED
THEY KNEW NOTHING ABOUT LEWIS' ALLEGED STATEMENT OF FEBRUARY 4, 1971 AND
WERE NOT INFLUENCED BY LEWIS IN THE ACTIONS THEY TOOK NOR DID LEWIS TRY
TO INFLUENCE OR PERSUADE THEM. THE COMPLAINANT'S ARGUMENT IS LITTLE
MORE THAN AN ARGUMENT THAT ON FEBRUARY 4, 1971 LEWIS A SUPERVISOR,
PREDICTED THAT WHEN PROMOTIONS CAME BYRD WOULD NOT BE PROMOTED BECAUSE
OF HIS UNION ACTIVITIES; NINETEEN MONTHS LATER, WHEN PROMOTIONS CAME,
BYRD WAS NOT PROMOTED (BY OTHERS); ERGO, BYRD WAS NOT PROMOTED BECAUSE
OF HIS UNION ACTIVITIES. THAT SUCH AN ARGUMENT REACHES A NON SEQUITUR
NEED NOT BE EXPLICATED.
ON THE BASIS OF THE RECORD, THE COMPLAINANT HAS NOT SUSTAINED ITS
BURDEN OF SHOWING THAT BYRD WAS NOT GIVEN A PROMOTION BECAUSE OF HIS
UNION ACTIVITIES.
RESPONDENT'S REFUSAL TO COMPLY WITH REQUESTS FOR THE PRODUCTION OF
DOCUMENTS.
IN THE DISCUSSION, SUPRA, UNDER THE CAPTION "REQUESTS FOR PRODUCTION
OF WITNESSES AND DOCUMENTS", I CONCLUDED THAT WHILE WE SHOULD DISREGARD
CERTAIN EXHIBITS INTRODUCED BY THE RESPONDENT BECAUSE OF THE
RESPONDENT'S RECALCITRANCE IN NOT PRODUCING THOSE DOCUMENTS PURSUANT TO
THE REQUESTS, WE SHOULD NOT DISREGARD ALL RELATED EVIDENCE.
TO DISREGARD ALL RELATED EVIDENCE WOULD RESULT IN A DECISION CONTRARY
TO WHAT WE KNOW ARE THE FACTS. FOR EXAMPLE, BYRD AND BOYD TESTIFIED
THAT SOMEONE IN THE INDUSTRIAL RELATIONS OFFICE TOLD THEM, AFTER THE
PROMOTIONS HAD BEEN MADE, IN ANSWER TO A QUESTION, THAT LEWIS HAD BEEN
THE SUBJECT MATTER EXPERT ON PROMOTIONS TO METALS INSPECTOR "A". THE
NAMES OF THE SUBJECT MATTER EXPERTS COULD REASONABLY BE FOUND TO BE
INCLUDED IN THE DOCUMENTS REQUESTED TO BE PRODUCED BY ROBERT BRITTEN,
DIRECTOR OF INDUSTRIAL RELATIONS. EXHIBIT C5. TO DISREGARD ALL
RESPONDENT'S EVIDENCE ON THE IDENTITY OF THE SUBJECT MATTER EXPERT WOULD
LEAVE US ONLY WITH UNCERTAIN EVIDENCE THAT IT WAS LEWIS AND THAT HE
THEREFORE PLAYED A PART IN THE DETERMINATION OF THE PROMOTIONS TO "A".
BUT THE EVIDENCE IS OVERWHELMING THAT LEWIS WAS NOT THE SUBJECT MATTER
EXPERT IN THE "A" PROMOTIONS. HE WAS THE SUBJECT MATTER EXPERT IN THE
CONCURRENT PROMOTIONS TO METALS INSPECTOR "B", PROMOTIONS HAVING NOTHING
TO DO WITH THIS CASE. THE STATEMENT MADE BY AN UNIDENTIFIED EMPLOYEE IN
THE INDUSTRIAL RELATIONS OFFICE TO BYRD AND BOYD THAT LEWIS AS THE
SUBJECT MATTER EXPERT IN THE "A" PROMOTIONS, WAS SIMPLY A MISTAKE. WE
SHOULD NOT PERMIT THE RESPONDENT'S CONTUMACY TO CLOSE OUR MINDS SO THAT
WE ACCEPT AS FACT WHAT WE KNOW NOT TO BE FACT.
NEVERTHELESS, I BELIEVE IT WOULD BE APPROPRIATE TO ORDER THAT THE
RESPONDENT PROMOTE JAMES M. BYRD TO THE GRADE OF METALS INSPECTOR "A".
SEE LAST SENTENCE OF SECTION 206.7(E) AND SECTION 203.25(B) OF THE
REGULATIONS. I REACH SUCH CONCLUSION ON TWO BASES.
I HAVE CONCLUDED ABOVE THAT THE REFUSAL TO COMPLY WITH MY REQUESTS
FOR PRODUCTION OF DOCUMENTS WAS PATENTLY UNJUSTIFIED, WHATEVER DOUBTS
THERE MAY BE ABOUT THE REQUESTS OF THE ASSISTANT REGIONAL DIRECTOR. TO
DISMISS THE COMPLAINT FOR FAILURE OF PROOF WOULD PERMIT UNJUSTIFIED
RECALCITRANCE TO PASS WITHOUT MEANINGFUL SANCTION. TO REQUIRE THE
RESPONDENT TO PROMOTE BYRD WOULD NOT REQUIRE IT TO PROMOTE A PERSON
UNQUALIFIED TO BE PROMOTED. BYRD IS CONCEDEDLY HIGHLY QUALIFIED FOR THE
HIGHER POSITION. THE RESPONDENT DOES NOT WANT TO PROMOTE BYRD BECAUSE
IT FOUND SIX OTHERS MORE HIGHLY QUALIFIED. THE NORMAL COMPLEMENT OF "A"
INSPECTORS IS ABOUT ONE-THIRD OF ALL INSPECTORS, OR ABOUT 25 "A"
INSPECTORS, BUT IT FLUCTUATES ABOVE OR BELOW ONE-THIRD BECAUSE OF
TURNOVER. TO REQUIRE THE RESPONDENT TO PROMOTE BYRD WOULD NOT UNDULY
PREJUDICE THE PUBLIC INTEREST BUT WOULD REQUIRE RESPONDENT TO DO
SOMETHING SIGNIFICANT IT DOES NOT WANT TO DO AND WOULD BE A MEANINGFUL
SANCTION.
THERE IS AN ALTERNATIVE BASIS FOR REQUIRING RESPONDENT TO PROMOTE
BYRD. WE KNOW WHAT IS CONTAINED IN THE REQUESTED DOCUMENT RESPONDENT
INTRODUCED IN SUPPORT OF ITS OWN CASE, BUT WE DO NOT KNOW WHAT IS IN THE
OTHER DOCUMENTS RESPONDENT REFUSED TO PRODUCE. THEY MAY HAVE CONTAINED
INFORMATION THAT WOULD HAVE DESTROYED RESPONDENT'S CASE. I CANNOT FIND
AS A FACT THAT THEY DO, BECAUSE I DO NOT KNOW, BUT THEY MAY HAVE. IT IS
THE RESPONDENT THAT HAS PREVENTED US FROM KNOWING. IN SUCH
CIRCUMSTANCES IT IS FAIR TO ASSUME THAT THE MISSING DOCUMENTS SHOW THAT
BYRD WAS DENIED PROMOTION BECAUSE OF HIS UNION ACTIVITIES. I MAKE THIS
ASSUMPTION NOT BECAUSE I BELIEVE IT TO BE A FACT, BUT BECAUSE
RESPONDENT'S RECALCITRANCE MAKES IT FAIR TO MAKE THAT ASSUMPTION, AND IT
PRODUCES AN EQUITABLE RESULT. THUS THE DECISION IS MADE AS THOUGH THE
MISSING DOCUMENTS PROVED COMPLAINANT'S CASE, REGARDLESS OF ANY BELIEF IN
WHETHER THEY DO.
THIS REACHES THE SAME RESULT AS "PRESUMING" THAT THE WITHHELD
DOCUMENTS HAVE ESTABLISHED COMPLAINANT'S CASE OR DESTROYED RESPONDENT'S
CASE. I DO NOT BASE MY CONCLUSION IN TERMS OF "PRESUMPTION". NORMALLY,
THE REFUSAL OF A PARTY TO PRODUCE DOCUMENTS CONTAINING EVIDENCE OF A
FACT RAISES A PRESUMPTION THAT THE FACT IS AGAINST HIM. IN LEGAL
PARLANCE, A "PRESUMPTION" IS "AN INFERENCE. . .OF. . ." BOUVIER'S LAW
DICTIONARY, THIRD REVISION. I CANNOT, IN THIS CASE, SAY THAT THE
PROBABLE REASON FOR RESPONDENT'S NOT PRODUCING THE REQUESTED DOCUMENTS
WAS THAT THEY CONTAIN EXPLOSIVE INFORMATION. TO BE SURE, THEY
CONCEIVABLY DO. BUT I DO NOT KNOW, AND MY SPECULATION, IN LIGHT OF THE
DEMEANOR OF RESPONDENT'S COUNSEL AND WITNESSES, IS THAT THEY DO NOT
CONTAIN SUCH INFORMATION. I BELIEVE IT MORE LIKELY THAN NOT THAT
RESPONDENT'S RECALCITRANCE WAS MOTIVATED BY OBSTINACY RESULTING FROM
BEING INCENSED WITH THE MANNER IN WHICH THE REQUESTS WERE ISSUED BY THE
REGIONAL OFFICE AND THE MANNER IN WHICH COMPLAINANT USED THEM.
THUS I DO NOT PRESUME A FACT I BELIEVE IS LIKELY NOT SO. I BELIEVE
THIS CASE PRESENTS A SITUATION IN WHICH A "PRESUMPTION OF LAW" SHOULD BE
IMPOSED, I.E., AN INFERENCE TO BE ACCEPTED REGARDLESS OF THE FACT, FROM
MOTIVES OF LEGAL POLICY. IN THIS CASE, NOT TO MAKE SUCH PRESUMPTION OF
LAW WOULD, OR COULD, FRUSTRATE THE OPERATION OF SECTION 206.7 OF THE
REGULATIONS. I BELIEVE THAT MAKING SUCH PRESUMPTION OF LAW FAILS WITHIN
THE PERMISSIBLE ACTIONS TO BE TAKEN UNDER THAT PORTION OF THE LAST
SENTENCE OF SECTION 206.7(E) WHICH AUTHORIZES US TO "TAKE SUCH OTHER
ACTION AS MAY BE APPROPRIATE." SUCH ACTION IS APPROPRIATE WHERE THE
LEGAL THEORIES ADVANCED IN JUSTIFICATION OF NOT COMPLYING WITH THE
REQUESTS OF THE ADMINISTRATIVE LAW JUDGE ARE NOT ONLY WRONG BUT UTTERLY
UNTENABLE, AND TAKING SUCH ACTION IS NECESSARY TO EFFECTUATE SIGNIFICANT
REMEDIAL ACTION.
IN THIS CASE, WHERE WE ORDER REMEDIAL ACTION NOT TO VINDICATE THE
SUBSTANTIVE PROVISIONS OF THE EXECUTIVE ORDER BUT TO VINDICATE THE LEGAL
PROCEDURES UNDER THE ORDER, A REQUIREMENT OF THE POSTING OF A NOTICE BY
THE ACTIVITY WOULD BE INAPPROPRIATE. THE POSTING OF A NOTICE IS USUALLY
APPROPRIATE IN CASES IN WHICH AN ACTUAL VIOLATION OF SUBSTANTIVE
PROVISIONS OF THE EXECUTIVE ORDER IS FOUND. THAT IS NOT THIS CASE.
THERE IS NO REASON TO BELIEVE THAT ANYONE WAS OR MIGHT HAVE BEEN
INTIMIDATED IN THE EXERCISE OF RIGHTS GRANTED BY THE EXECUTIVE ORDER BY
RESPONDENT'S REFUSAL TO FOLLOW THE PRESCRIBED PROCEDURES OF THE
REGULATIONS IN THE PROCESSING OF A COMPLAINT OF VIOLATION OF SECTION
19(A) OF THE ORDER. THE POSTING OF A NOTICE THAT HENCEFORTH THEY WILL
COMPLY WITH THE PROCEDURES INCLUDING LAWFUL REQUESTS FOR PRODUCTION,
WOULD APPROACH THE MEANINGLESS. THE FACT OF REQUIRING THE ACTIVITY TO
PROMOTE BYRD WOULD BE WHOLESOME.
I RECOMMEND THAT THE ACTIVITY BE ORDERED TO PROMOTE BYRD TO METALS
INSPECTOR "A".
DATED: APRIL 29, 1974
WASHINGTON, D.C.
/1/ BY AMENDMENT OF NOVEMBER 8, 1973, THIS TEN-DAY PERIOD WAS CHANGED
TO FIFTEEN DAYS. 38 FED.REG. 30875.
/2/ TR. 79-81.
/3/ TR. 98-99, 102.
/4/ TR. 97.
/5/ TR. 90-102.
/6/ THE STATEMENT MAY HAVE BEEN A VIOLATION WHEN MADE, IF MADE, BUT
THAT WAS TOO LONG BEFORE THE FILING OF THE COMPLAINT TO CONSTITUTE A
COGNIZABLE VIOLATION OF THE EXECUTIVE ORDER. 29 C.F.R.SEC. 203.2(B).
4 A/SLMR 424; P. 540; CASE NO. 40-4955(CA); AUGUST 27, 1974.
VETERANS ADMINISTRATION HOSPITAL,
SALISBURY, NORTH CAROLINA
A/SLMR NO. 424
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1738, (COMPLAINANT),
THE EXCLUSIVE REPRESENTATIVE OF CERTAIN PROFESSIONAL EMPLOYEES INCLUDING
NURSES OF THE VETERANS ADMINISTRATION HOSPITAL, SALISBURY, NORTH
CAROLINA (RESPONDENT). IT WAS ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (3) OF THE ORDER BY GRANTING CERTAIN OF ITS NURSES
ADMINISTRATIVE LEAVE TO ATTEND A PROFESSIONAL WORKSHOP CONFERENCE
CONDUCTED BY THE NORTH CAROLINA STATES NURSES' ASSOCIATION (NCSNA), AN
AFFILIATE OF THE AMERICAN NURSES' ASSOCIATION, WHICH WAS PERMITTED TO
INTERVENE IN THE PROCEEDINGS AS A PARTY IN INTEREST.
THE EVIDENCE REVEALED THAT THE RESPONDENT HAS A POLICY OF GRANTING
ADMINISTRATIVE LEAVE TO ITS PROFESSIONAL EMPLOYEES, INCLUDING NURSES, TO
ATTEND EDUCATIONAL CONFERENCES AND WORKSHOPS AND THAT PURSUANT TO THIS
POLICY IT GRANTED ADMINISTRATIVE LEAVE TO CERTAIN OF ITS NURSES TO
ATTEND A PROFESSIONAL WORKSHOP CONDUCTED BY THE NCSNA. THE EVIDENCE
ALSO REVEALED THAT THE NCSNA DID NOT ATTEMPT TO ENGAGE IN MEMBERSHIP
SOLICITATION AT THE WORKSHOP AND THAT ITS ONLY CONTACT WITH THE
RESPONDENT WAS THROUGH AN ANNOUNCEMENT MAILED TO SOME 615 OTHER
INDIVIDUALS AND INSTALLATIONS SETTING FORTH THE PROGRAM OF THE WORKSHOP
AND CONTAINING INFORMATION CONCERNING SUCH MATTERS AS THE REGISTRATION
FEES FOR ATTENDING NURSES. ADDITIONALLY, THERE WAS NO EVIDENCE THAT THE
NCSNA HAD ATTEMPTED TO INTERFERE WITH THE BARGAINING RELATIONSHIP
BETWEEN THE RESPONDENT AND THE COMPLAINANT.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT'S POLICY OF
PERMITTING ITS PROFESSIONAL EMPLOYEES TO ATTEND STRICTLY PROFESSIONAL
MEETINGS OR WORKSHOPS CONDUCTED BY PROFESSIONAL ASSOCIATIONS THAT ARE
LABOR ORGANIZATIONS WITHIN THE MEANING OF THE ORDER IS NOT PER SE
VIOLATIVE OF THE ORDER. HE FURTHER FOUND THAT AS THE EVIDENCE REVEALED
THAT THE SUBJECT MATTER OF THE WORKSHOP WAS STRICTLY PROFESSIONAL IN
NATURE AND THERE WAS NO EVIDENCE THAT THE RESPONDENT CONSULTED OR DEALT
WITH THE NCSNA IN DEROGATION OF ITS COLLECTIVE BARGAINING OBLIGATION
OWED TO THE COMPLAINANT, THE RESPONDENT DID NOT VIOLATE THE ORDER BY
ACCORDING ITS NURSES ADMINISTRATIVE LEAVE TO ATTEND THE WORKSHOP. IN
THIS CONNECTION, HE NOTED THAT THERE WAS NO SIGNIFICANT CONTACT BETWEEN
THE RESPONDENT AND THE NCSNA REGARDING THE WORKSHOP OTHER THAN THE
MAILED ANNOUNCEMENT AND THAT THE RESPONDENT'S ACTION IN GRANTING THE
ADMINISTRATIVE LEAVE WAS CONSISTENT WITH THE NEGOTIATED AGREEMENT
BETWEEN THE RESPONDENT AND THE COMPLAINANT WHICH ENCOURAGED THE
RESPONDENT'S SUPERVISORS TO SCHEDULE TOURS OF DUTY TO ACCOMMODATE
PROFESSIONAL EMPLOYEES DESIRING TO TAKE ADVANTAGE OF EDUCATIONAL
OPPORTUNITIES JUDGED TO BE OF CAREER VALUE.
ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE
COMPLAINANT HAD NOT SUSTAINED ITS BURDEN OF PROVING BY A PREPONDERANCE
OF THE EVIDENCE THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (3) OF
THE ORDER.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE CASE, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
VETERANS ADMINISTRATION HOSPITAL,
SALISBURY, NORTH CAROLINA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1738
AND
NORTH CAROLINA STATE NURSES'
ASSOCIATION
ON APRIL 4, 1974, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE ALLEGED UNFAIR LABOR
PRACTICES AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY. THEREAFTER, THE COMPLAINANT FILED EXCEPTIONS WITH RESPECT TO
THE ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. FURTHER, THE
RESPONDENT AND PARTY IN INTEREST WERE GRANTED LEAVE TO FILE ANSWERING
BRIEFS TO THE COMPLAINANT'S EXCEPTIONS.
THE ASSISTANT SECRETARY 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 REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE COMPLAINANT, AND THE
ANSWERING BRIEFS TO THE COMPLAINANT'S EXCEPTIONS FILED BY THE RESPONDENT
AND THE PARTY IN INTEREST, I HEREBY ADOPT THE FINDINGS, /1/ CONCLUSIONS
AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-4955(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 27, 1974
/1/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND ON THE
BASIS OF THE RECORD HEREIN THAT THE RESPONDENT DID NOT VIOLATE THE ORDER
WHEN IT EXTENDED LEAVE TO CERTAIN OF ITS EMPLOYEES TO ATTEND A
PROFESSIONAL WORK CONFERENCE SPONSORED BY THE PARTY IN INTEREST.
IN THE MATTER OF
VETERANS ADMINISTRATION HOSPITAL
SALISBURY, NORTH CAROLINA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1738,
AND
NORTH CAROLINA STATE NURSES' ASSOCIATION,
RAYMOND J. MALLOY, ESQ.
ASSISTANT GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
JOHN S. MEARS, ESQ.
VETERANS ADMINISTRATION
810 VERMONT AVENUE, N.W.
WASHINGTON, D.C. 20420
COSINO C. ABATO, ESQ.
415 ST. PAUL PLACE
BALTIMORE, MARYLAND 21202
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491 (HEREINAFTER CALLED
THE ORDER) PURSUANT TO A NOTICE OF HEARING ISSUED SEPTEMBER 21, 1973, BY
THE ASSISTANT REGIONAL DIRECTOR, U.S. DEPARTMENT OF LABOR,
LABOR-MANAGEMENT SERVICES ADMINISTRATION, ATLANTA REGION IN WHICH THE
VETERANS ADMINISTRATION HOSPITAL, SALISBURY, NORTH CAROLINA WAS
DESIGNATED AS THE RESPONDENT, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES' LOCAL 1738 AS COMPLAINANT, AND NORTH CAROLINA STATE NURSES'
ASSOCIATION AS PARTY IN INTEREST IN THIS PROCEEDING.
ON JULY 16, 1973, A COMPLAINT WAS FILED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES ON BEHALF OF LOCAL 1738, SALISBURY, NORTH CAROLINA
(HEREIN REFERRED TO AS AFGE AND/OR COMPLAINANT) AGAINST VETERANS
ADMINISTRATION HOSPITAL, SALISBURY, NORTH CAROLINA (HEREIN CALLED
RESPONDENT). THE COMPLAINANT CHARGED THE RESPONDENT WITH HAVING
VIOLATED SECTIONS 19(A)(1) AND (3) OF THE ORDER. ESSENTIALLY, THE
COMPLAINANT CHARGED THAT ON APRIL 16, 1973, PAT HAYES OF THE NORTH
CAROLINA STATE NURSES ASSOCIATION (HEREINAFTER CALLED NCSNA), AN
AFFILIATE OF THE AMERICAN NURSES' ASSOCIATION (HEREINAFTER CALLED ANA)
ISSUED A MEMORANDUM TO ALL PSYCHIATRIC-MENTAL HEALTH NURSES IN NORTH
CAROLINA ANNOUNCING A WORKSHOP CONFERENCE SCHEDULED TO BE HELD ON MAY
24-25, 1973; SOME OF THE BROADER OBJECTIVES SUGGESTED FOR THE GROUP TO
CONSIDER INCLUDED: (1) TO BECOME INVOLVED IN STATE BUT NATIONAL ISSUES
AFFECTING PSYCHIATRIC-MENTAL HEALTH NURSES NOW AND IN THE FIGURE SO THAT
GROUP CONCENSUS AND PRESSURE CAN BE EXERTED TO BRING ABOUT PREDICTABLE
CHANGE; (2) TO SHARE CLINICAL PRACTICE ROLES IN ORDER TO DECREASE
ISOLATION, INCREASE IDENTITY WITH NURSING AND IMPROVE NURSING PRACTICES;
(3) TO DISTRIBUTE AND KEEP CURRENT A PEER CONSULTATION LIST.
MEMBERSHIP IN THE GROUP WAS MENTIONED AND ALL PSYCHIATRIC-MENTAL HEALTH
NURSES WERE INVITED TO ATTEND. /1/ A FLYER ATTACHED TO THE MEMORANDUM
SPECIFIED THAT THE WORKSHOP CONFERENCE WOULD BE HELD AT REIDSVILLE,
NORTH CAROLINA ON MAY 24 AND 25, 1973, AND SPECIFIED THE TOPIC FOR
DISCUSSION. ON APRIL 27, 1973, RUBY MILLER /2/ ADDRESSED A REFERENCE
SLIP TO MRS. BRANDT /3/ AND ATTACHED IT TO THE APRIL 16, 1973,
ANNOUNCEMENT AND FLYER STATING: "ADMINISTRATIVE LEAVE WILL BE GRANTED
WHERE NURSES CAN BE SPARED. NO FUNDS AVAILABLE TO DEFRAY EXPENSES.
SUBMIT NAMES OF INTERESTED PARTIES TO MISS RUBY MILLER BY MAY 9, 1975."
/4/ THE ACTION BY THE VETERANS ADMINISTRATION IN GRANTING ADMINISTRATIVE
LEAVE TO EMPLOYEES TO ATTEND THE WORKSHOP CONFERENCE AND SOLICITING
PARTICIPANTS ON BEHALF OF NCSNA WAS ALLEGED TO CONSTITUTE UNFAIR LABOR
PRACTICE VIOLATIONS SINCE AFGE LOCAL 1738 WAS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES AT THE SALISBURY VA HOSPITAL AND ANA AS WELL
AS ITS AFFILIATE THE NCSNA WERE RECOGNIZED LABOR ORGANIZATIONS WITHIN
THE FEDERAL SECTOR.
A HEARING WAS HELD IN THE ABOVE-CAPTIONED MATTER ON DECEMBER 4 AND 5,
1973, AT SALISBURY, NORTH CAROLINA. ALL PARTIES WERE REPRESENTED BY
COUNSEL WHO WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
HEREIN. ORAL ARGUMENT WAS WAIVED. BRIEFS WERE SUBMITTED BY COUNSEL FOR
ALL PARTIES WITHIN THE EXTENDED TIME ALLOTED AND HAVE BEEN CONSIDERED BY
THE UNDERSIGNED.
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR AND UPON THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
AT THE BEGINNING OF THE HEARING THE COMPLAINANT MOVED TO DISMISS THE
NCSNA AS A PARTY IN INTEREST TO THE PROCEEDING OR IN THE ALTERNATIVE FOR
CLARIFICATION OF ITS POSITION STATUS. THE STATUS OF NCSNA WAS DISCUSSED
AT THE HEARING. /5/ THE MOTION TO DISMISS WAS DENIED TO PERMIT
LITIGATION OF ALL ISSUES AND HAVE A COMPLETE RECORD; THE PARTIES WERE
DIRECTED TO BRIEF ME FURTHER ON THIS ISSUE FOR MY FINAL DECISION AND
RECOMMENDATION TO THE ASSISTANT SECRETARY. AFTER REVIEWING THE RECORD,
I REAFFIRM MY DENIAL OF COMPLAINANT'S MOTION TO DISMISS NCSNA AS A PARTY
IN INTEREST FOR REASONS INCLUDING: (A) THE MATTERS SPECIFIED IN THE
COMPLAINT WERE SUCH THAT THE POSITION OF NCSNA WAS ESSENTIAL TO COMPLETE
INVESTIGATION OF THE ALLEGATIONS MADE; (B) NCSNA WAS A PROPER PARTY
DESIGNATED BY THE ASSISTANT REGIONAL DIRECTOR (FORMERLY REGIONAL
ADMINISTRATOR) PURSUANT TO 29 C.F.R.,PART II, SECTION 201.21 OF THE
REGULATIONS OF THE ASSISTANT SECRETARY; AND (C) THE PROCEEDING BEFORE
ME IS NOT THE APPROPRIATE FORUM FOR DISMISSAL OF A PARTY IN INTEREST
DESIGNATED BY THE ASSISTANT REGIONAL DIRECTOR.
I ALSO REAFFIRM MY DENIAL OF COMPLAINANT'S MOTION FIRST MADE AT THE
HEARING TO ADD ALLEGED VIOLATIONS UNDER SECTION 19(A)(2), (5) AND (6) OF
THE ORDER TO THOSE IN THE COMPLAINT; THERE HAD NEVER BEEN ANY CHARGE
WITH RESPECT TO THESE ALLEGED VIOLATIONS WHICH WERE MORE THAN SIX MONTHS
AFTER OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE; THE COMPLAINT
DID NOT SPECIFY SECTIONS OTHER THAN 19(A)(1) AND (3) OF THE ORDER TO
HAVE BEEN VIOLATED AND NO SATISFACTORY EXPLANATION WAS PROFERRED AS TO
THE DELAY IN WAITING UNTIL THE DAY OF THE HEARING TO PROPOSE THE
AMENDMENT TO INCLUDE ALLEGED VIOLATIONS OF SECTIONS 19(A)(2), (5) AND
(6) OF THE ORDER. SINCE THERE HAD BEEN NO PRIOR NOTICE TO THE PARTIES
TO THE PROCEEDING AND NO INVESTIGATION OR COMPLIANCE WITH APPLICABLE
REGULATIONS /6/ TO MATTERS ALLEGED IN THE PROPOSED AMENDMENT, I WAS OF
THE OPINION THAT THE MOTION WAS PART OF AN ATTEMPT TO DELAY THE
PROCEEDING AND AN ABUSE OF THE ADMINISTRATIVE PROCESS OF THE ASSISTANT
SECRETARY. THUS, I DID NOT CONSIDER IT APPROPRIATE TO PERMIT THE
AMENDMENT ADDING THREE OBJECTIVE VIOLATIONS OF SECTION 19(A) OF THE
ORDER MADE FOR THE FIRST TIME AT THE HEARING, ABSENT A COMPELLING
REASON. I WILL RECOMMEND THAT THE COMPLAINANT'S MOTION TO ADD
VIOLATIONS OF SECTION 19(A)(2), (5) AND (6) TO THE COMPLAINT BE DENIED.
THE COMPLAINANT ALSO MOVED DURING THE HEARING TO AMEND ITS
COMPLAINANT TO INCLUDE ALLEGATIONS OF UNFAIR LABOR PRACTICES RELATING TO
THE WINSTON-SALEM CONFERENCE ON MAY 1, 1973. AFTER ENTERTAINING
OBJECTIONS FROM COUNSEL FOR RESPONDENT AND THE PARTY IN INTEREST, I
INITIALLY DENIED THE MOTION BUT LATER DURING THE COURSE OF THE HEARING
PERMITTED EVIDENCE AS TO THE MAY 1 MEETING FOR BACKGROUND INFORMATION.
UPON RENEWAL OF THE MOTION THE PARTIES WERE ADVISED THAT I WOULD RESERVE
JUDGMENT AS TO FURTHER CONSIDERATION OF THE ISSUE AND TO ARGUE THE
MOTION IN THEIR POST-HEARING BRIEFS. /7/
DESPITE THE FACT THAT THE MOTION FOR AMENDMENT INCLUDED AN ADDITIONAL
INCIDENT OF SECTION 19(A)(1) AND (3) VIOLATIONS OF THE ORDER, IT
OCCURRED MORE THAN SIX MONTHS BEFORE THE MOTION AND HEARING; THERE HAD
BEEN NO PRIOR CHARGE FILED DIRECTLY WITH THE PARTY OR PARTIES AGAINST
WHOM THE CHARGE WAS DIRECTED AND THERE HAD BEEN NO ATTEMPT TO RESOLVE
THE MATTER BY THE PARTIES OR INVESTIGATION THEREOF BY THE ASSISTANT
REGIONAL DIRECTOR. UNDER THE CIRCUMSTANCES AND IN THE ABSENCE OF ANY
COMPELLING REASON TO EXPLAIN THE BELATED MOTION TO AMEND THE COMPLAINT
TO INCLUDE THE WINSTON-SALEM CONFERENCE ON MAY 1, 1973, I FIND THAT THE
MATTER WAS NOT PROPERLY BEFORE ME BECAUSE THE PRE-COMPLAINT CHARGE AND
REQUIREMENTS OF SECTION 203.2 AND 203.3 /8/ OF REGULATIONS OF THE
ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS WERE NOT COMPLIED
WITH BY THE COMPLAINANT AND I WILL RECOMMEND THAT THE MOTION TO AMEND IN
THIS MATTER BE DENIED.
ESSENTIALLY, THE BASIC ISSUE TO BE RESOLVED IS:
WHETHER THE RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (3) OF THE
ORDER BY GRANTING ADMINISTRATIVE LEAVE TO CERTAIN OF ITS EMPLOYEES TO
ATTEND A PROFESSIONAL WORKSHOP SPONSORED BY THE NORTH CAROLINA STATE
NURSES' ASSOCIATION AN AFFILIATE OF THE AMERICAN NURSES' ASSOCIATION.
INCIDENTAL TO THIS ISSUE IS THE QUESTION OF WHETHER THE POLICY OF THE
RESPONDENT WITH RESPECT TO EDUCATIONAL MEETINGS SPONSORED BY THE NA AND
ANA AND ITS AFFILIATES INCLUDING NCSNA IS IN VIOLATION OF THE EXECUTIVE
ORDER.
THE POLICY OF THE RESPONDENT'S DEPARTMENT OF MEDICINE AND SURGERY
WITH RESPECT TO GRANTING ADMINISTRATIVE LEAVE FOR ATTENDANCE OF ITS
PROFESSIONAL EMPLOYEES AT EDUCATIONAL CONFERENCES IS OF RECORD. /9/ IT
CONTENDS THAT CONTRARY TO COMPLAINANT'S EFFORT TO CHARACTERIZE ITS
ACTION AS SOLICITING EMPLOYEES TO ATTEND A MEETING OR MEETINGS OF A
RIVAL LABOR ORGANIZATION, IT IS CLEAR THAT RESPONDENT WAS SIMPLY
FOLLOWING A LONGSTANDING POLICY OF PERMITTING ITS NURSES TO ATTEND
WORTHWHILE EDUCATIONAL PROGRAMS, WHEN THEY COULD BE SPARED, IN AN EFFORT
TO ENHANCE THEIR ABILITY TO DELIVER PATIENT CARE.
THE COMPLAINANT URGES THAT THE RESPONDENT'S POLICY OF PERMITTING ITS
EMPLOYEES TO ATTEND NCSNA WORKSHOP CONFERENCE ON ADMINISTRATIVE LEAVE
CONSTITUTES A VIOLATION OF SECTION 19(A)(3) OF THE ORDER. IT IS FURTHER
URGED THAT SUCH POLICY ENCOURAGES MEMBERSHIP BY RESPONDENT'S EMPLOYEES
IN ANA AND ITS AFFILIATE NCSNA AND DISCOURAGES MEMBERSHIP IN OTHER LABOR
ORGANIZATIONS SUCH AS THE COMPLAINANT WHICH HOLDS EXCLUSIVE RECOGNITION
AT SALISBURY, NORTH CAROLINA VA HOSPITAL AND THIS ALSO INTERFERES WITH
ITS RIGHTS UNDER SECTION 19(A)(1) OF THE ORDER.
COUNSEL FOR NCSNA OPINES THAT THE POLICY OF RESPONDENT WITH RESPECT
TO EDUCATIONAL MEETINGS SPONSORED BY THE ANA AND ITS AFFILIATES DOES NOT
VIOLATE THE EXECUTIVE ORDER. IT IS STATED THAT THERE IS A MATTER FOR
RESOLUTION OF WHETHER A POLICY WILL BE ADOPTED WHICH WILL SERIOUSLY
PREJUDICE THE RIGHTS OF ANA AND ITS AFFILIATES SUCH AS NCSNA TO CONDUCT
CONTINUING EDUCATION NOT ONLY FOR THE PROFESSIONAL NURSES OF THE
RESPONDENT BUT FOR NURSES EMPLOYED THROUGHOUT THE FEDERAL GOVERNMENT.
SECTION 19(A) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT SHALL NOT
-
"(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED BY THIS ORDER; . . .
"(3) SPONSOR, CONTROL, OR OTHERWISE ASSIST A LABOR ORGANIZATION. . .
."
SECTION 7(D) PROVIDES THAT RECOGNITION OF A LABOR ORGANIZATION DOES
NOT-
"3. PRECLUDE AN AGENCY FROM CONSULTING OR DEALING WITH A RELIGIOUS,
SOCIAL, FRATERNAL, PROFESSIONAL /10/ OR OTHER LAWFUL ASSOCIATION, NOT
QUALIFIED AS A LABOR ORGANIZATION, WITH RESPECT TO MATTERS OR POLICIES
WHICH INVOLVE INDIVIDUAL MEMBERS OF THE ASSOCIATION OR ARE OF PARTICULAR
APPLICABILITY TO IT OR ITS MEMBERS. CONSULTATIONS AND DEALINGS UNDER
SUBPARAGRAPH (3) OF THIS PARAGRAPH SHALL BE SO LIMITED THAT THEY DO NOT
ASSUME THE CHARACTER OF FORMAL CONSULTATION ON MATTERS OF GENERAL
EMPLOYEE-MANAGEMENT POLICY, EXCEPT AS PROVIDED IN PARAGRAPH (E) OF THIS
SECTION, OR EXTEND TO AREAS WHERE RECOGNITION OF THE INTERESTS OF ONE
EMPLOYEE GROUP MAY RESULT IN DISCRIMINATION AGAINST AN INJURY TO THE
INTERESTS OF OTHER EMPLOYEES."
THE MATERIAL FACTS IN THIS PROCEEDING ARE NOT IN ESSENTIAL DISPUTE,
MANY HAVING BEEN STIPULATED OR UNCONTRADICTED AT THE HEARING AND ARE
FOUND TO BE AS FOLLOWS: AFGE LOCAL 1738 HAS BEEN SINCE 1964 THE
RECOGNIZED LABOR ORGANIZATION IN A UNIT OF ALL EMPLOYEES EXCEPT
PROFESSIONALS AS RESPONDENT'S SALISBURY, NORTH CAROLINA HOSPITAL, AND
SINCE 1966 HAS BEEN RECOGNIZED IN A UNIT OF PROFESSIONALS INCLUDING
NURSES AT THIS INSTALLATION. A COLLECTIVELY BARGAINED AGREEMENT IS
CURRENTLY IN EFFECT FOR THE PROFESSIONAL UNIT.
NCSNA AND ITS PARENT ANA ARE NOW BOTH LABOR ORGANIZATIONS WITHIN THE
MEANING OF EXECUTIVE ORDER 11491, AS AMENDED, /11/ SUCH STATUS HAVING
BEEN ACQUIRED SOMETIME PRIOR TO 1968. NCSNA HAS SINCE AT LEAST 1968
BEEN THE RECOGNIZED LABOR ORGANIZATION IN A UNIT CONSISTING OF NURSES AT
RESPONDENT'S INSTALLATION AT FAYETTEVILLE, NORTH CAROLINA AND THIS IS
THE ONLY FACILITY OF RESPONDENT IN WHICH NCSNA HOLDS RECOGNITION IN
NORTH CAROLINA.
VETERANS ADMINISTRATION NURSING SERVICE WAS ESTABLISHED IN 1922
BEATRICE E. JAMES, CHIEF OF NURSING SERVICE REGION 3, WHICH INCLUDES
SALISBURY, NORTH CAROLINA TESTIFIED THAT BASIC EDUCATION AS A NURSE IS
JUST THE BEGINNING AND YOU MUST HAVE NOT ONLY IN-SERVICE BUT CONTINUING
EDUCATION PROGRAMS TO MAINTAIN PROFESSIONAL COMPETENCE WITHIN THE
SERVICE. THE RESPONDENT CONDUCTS ITS OWN EDUCATIONAL PROGRAMS TO
ACHIEVE THIS OBJECTIVE AND SINCE 1926 HAS, IN ADDITION, GRANTED ITS
NURSES AUTHORIZED ABSENCE TO ATTEND PROGRAMS CONDUCTED BY OTHER
ORGANIZATIONS, INCLUDING SINCE AT LEAST 1952 THE ANA AND ITS AFFILIATES
SUCH AS NCSNA.
PRIOR TO 1967 THE RESPONDENT AND ITS SALISBURY FACILITY ENCOURAGED
THE PARTICIPATION OF ITS NURSES IN THE PROFESSIONAL ACTIVITIES OF THE
ANA. /12/ HOWEVER, AFTER AN ANA CONSTITUENT STATE NURSES' ASSOCIATION
WAS OFFICIALLY RECOGNIZED BY THE VETERANS ADMINISTRATION AS A LABOR
ORGANIZATION, THE CHIEF MEDICAL DIRECTOR ISSUED ON APRIL 14, 1967,
LETTER NO. 67-12 STATING IN PART:
"2. THE PROVISION OF CHAPTER 20, PART I, MP-5, EMPLOYEE ORGANIZATION
WILL HENCEFORTH APPLY TO ANA AND ITS CONSTITUENTS. IN KEEPING WITH VA
POLICIES, NO INTERFERENCE, RESTRAINT, COERCION, OR DISCRIMINATION SHALL
BE PRACTICED IN THE VA TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN THE
ASSOCIATION. NO INTERNAL ANA BUSINESS SUCH AS THE SOLICITATION OF
MEMBERSHIP OR DUES COLLECTION SHALL BE CONDUCTED ON OFFICIAL TIME.
"3. EXCUSED ABSENCE WITHOUT CHARGE TO LEAVE FOR ATTENDANCE AT ANA
MEETINGS WHERE THE SUBJECT OF THE MEETING IS PRIMARILY PROFESSIONAL MAY
CONTINUE TO BE GRANTED IN ACCORDANCE WITH MP-5, PART II, CHAPTER 7, AND
MP-3, PART II, CHAPTER 3. WHERE THE SUBJECT OF THE MEETING IS PRIMARILY
CONCERNED WITH INTERNAL ORGANIZATION BUSINESS OF ANA, EXCUSED ABSENCE IS
NOT AUTHORIZED. SIMILARLY, CENTRAL OFFICE WILL CONTINUE TO AUTHORIZE,
WHEN POSSIBLE, SUPPORT OF TRAVEL AND PER DIEM COSTS AND FEES FOR
MEETINGS WHICH ARE PRIMARILY PROFESSIONAL IN NATURE BUT WILL NOT APPROVE
REQUESTS FOR MEETINGS WHICH ARE PRIMARILY CONCERNED WITH INTERNAL
ORGANIZATION BUSINESS OF ANA."
THIS POLICY WAS REEMPHASIZED IN CLARIFICATION LETTERS ISSUED NOVEMBER
5, 1968, AND JULY 26, 1973. /13/
RUBY MILLER, ASSOCIATE CHIEF, NURSING SERVICE FOR EDUCATION,
TESTIFIED IN SUBSTANCE THAT SHE RECEIVED ALL ANNOUNCEMENTS FROM NON-VA
ORGANIZATIONS SENT TO THE HOSPITAL CONCERNING THEIR EDUCATIONAL
PROGRAMS. WHEN AN ANNOUNCEMENT WAS RECEIVED, SHE, IN CONSULTATION WITH
THE CHIEF NURSE AND ASSISTANT CHIEF NURSE, EVALUATED THE PROGRAM AS TO
ITS POTENTIAL BENEFITS RELATING TO CONTINUING EDUCATION OF THE NURSES
AND BETTER CARE AS TO THE NEEDS OF PATIENTS. NO REGARD WAS GIVEN TO THE
IDENTITY OF THE SPONSOR. ON THOSE ANNOUNCEMENT WITH PROGRAMS INDICATED
AND FOUND TO BE WORTHWHILE, /14/ COPIES WERE MADE AND TRANSMITTED TO
NURSING SUPERVISORS IN THE AREAS OF ACTIVITY RELATING TO THE PROGRAM
CONTENT. THUS DISTRIBUTION, WHETHER GENERAL OR LIMITED, DEPENDED ON THE
PROGRAM CONTENT. THE SUPERVISORS, UPON RECEIPT OF THE ANNOUNCEMENT AND
ATTACHMENTS CONCERNING THE MEETING BROUGHT THE MATTER TO THE ATTENTION
OF THEIR NURSES ADVISING THAT IF THEY WISHED TO ATTEND AND COULD BE
SPARED THEY WOULD BE GRANTED AUTHORIZED LEAVE. /15/ A NURSE EXPRESSING
HER WISH TO ATTEND SUBMITTED A MEMORANDUM TO HER HEAD NURSE WHO IN TURN
INDICATED WHETHER SHE COULD BE SPARED; IT WAS THEN FORWARDED TO THE
CHIEF NURSING SERVICE. IF THE NURSE COULD BE SPARED SHE WAS GRANTED
ADMINISTRATIVE LEAVE TO ATTEND. NURSES ATTENDING SUCH PROGRAMS REPORTED
ON WHAT THEY HAD LEARNED AT SUBSEQUENT MONTHLY GENERAL NURSES' MEETINGS.
A. REIDSVILLE CONFERENCE
THE PRINCIPLE DISTINCTION BETWEEN THE WINSTON-SALEM CONFERENCE HELD
ON MAY 1, 1973, AND THE REIDSVILLE WORKSHOP ON MAY 24, 1973, WAS THAT
THE FORMER WAS SPONSORED BY THE NCSNA AND THE LATTER BY A CONFERENCE
GROUP OF THE NCSNA.
WITHIN THE NCSNA THERE ARE FIVE CONFERENCE GROUPS DESIGNATED TO
IMPROVE NURSING PRACTICE IN A GIVEN AREA OF CLINICAL SPECIALTY AND
PROVIDE A PROGRAM OF CONTINUING EDUCATION IN THAT SPECIALTY. THE
PSYCHIATRIC-MENTAL HEALTH CONFERENCE GROUP WAS ONE OF THE FIVE GROUPS;
IT SPONSORED THE WORKSHOP ON MAY 24 AND 25, 1973, IN REIDSVILLE, NORTH
CAROLINA. /16/ IT PLANNED THE PROGRAM AND THE NCSNA ASSISTED IN THE
SELECTION OF A SUITABLE PLACE TO HOLD THE WORKSHOP CONFERENCE, THE
TYPING AND MAILING OF THE ANNOUNCEMENTS WITH ATTACHMENTS AND PROVISION
OF EDUCATIONAL MATERIALS USED AT THE CONFERENCE. THE NOTICES ANNOUNCING
THE MEETING WITH PROGRAM ATTACHMENT CONTAINED INFORMATION AS TO THE
REGISTRATION FEE AND A BLANK REQUISITION FORM. FACULTY FOR THE
CONFERENCE PROGRAM WAS DETERMINED ON THE BASIS OF THE PERSONS HAVING THE
BEST EXPERTISE TO PRESENT THE SUBJECT AND WAS NOT LIMITED TO MEMBERSHIP
IN ANY ORGANIZATION OR ASSOCIATION. THE BROAD OBJECTIVE HERETOFORE SET
FORTH IN THE COMPLAINT WAS ALSO SPECIFIED. PATRICIA HAYES TESTIFIED
THAT IN ADDITION TO BEING A LABORATORY ASSISTANT AT THE SCHOOL OF
NURSING, UNIVERSITY OF NORTH CAROLINA, SHE WAS PRESENTLY CHAIRMAN OF THE
PSYCHIATRIC-MENTAL HEALTH CONFERENCE GROUP OF NCSNA; SHE RELATED THAT
THE FIRST OBJECTIVE OR ITEM LISTED IN THE ANNOUNCEMENT ALSO MENTIONED IN
THE COMPLAINT HAD REFERRED TO PREPARATION BY ANA OF SOME STANDARDS ON
PSYCHIATRIC-MENTAL HEALTH, BUT THE MATERIAL AND STANDARDS DID NOT ARRIVE
IN TIME FOR USE AT THE MEETING AND ITEM NO. 1 WAS NOT DISCUSSED AT THE
REIDSVILLE CONFERENCE; THE SECOND AND THIRD WERE TO PREPARE A LIST OF
NURSES WHO AGREED TO ACT AS CONSULTANTS IN RESPONSE TO PEOPLE WHO WERE
LONELY AND NEEDED THEIR SERVICES IN DELIVERY OF PATIENT CARE AND TO
SHARE CLINICAL PRACTICE ROLES BY HAVING CLOSER IDENTITY WITH PATIENTS
WHO WERE FREE TO CALL ON THEM FOR SERVICES. THE ANNOUNCEMENT WITH
ATTACHMENTS WAS THEN MAILED TO 615 INDIVIDUALS AND INSTALLATIONS
INCLUDING THE SALISBURY VA HOSPITAL. THERE WAS NO OTHER CONTACT MADE BY
THE CONFERENCE GROUP OR THE NCSNA WITH RESPONDENT'S SALISBURY HOSPITAL
RELATING TO THE REIDSVILLE CONFERENCE WORKSHOP. THE RESPONDENT
REPRODUCED A SUFFICIENT NUMBER OF THE ANNOUNCEMENTS AND PROGRAMS FOR
NOTICE TO ITS SUPERVISORS. WHEN THE COMPLETED REGISTRATION FORM WAS
RECIEVED FROM THE WARD NURSES AND FORWARDED TO NCSNA A SECOND MAILING
WAS MADE BY NCSNA DIRECTLY TO THE REGISTRANT NURSE; IT CONTAINED
ADDITIONAL INFORMATION AS TO THE REIDSVILLE WORKSHOP AND A MAP AS TO ITS
LOCATION. THERE WERE 59 NURSES REPORTED TO HAVE ATTENDED THE CONFERENCE
INCLUDING TWO NON-SUPERVISORY NURSES AND ONE HEAD NURSE FROM THE
RESPONDENT'S SALISBURY HOSPITAL. THE COMPLAINANT OFFERED THE TESTIMONY
OF VENITA YANCEY AND JOAN HART BROCKMAN WHO ATTENDED THE REIDSVILLE
CONFERENCE. ONE LEARNED OF THE CONFERENCE FROM HER HEAD NURSE AND THE
OTHER FROM HER WARD COORDINATOR. EACH TESTIFIED THE CONFERENCE WAS
EDUCATIONALLY BENEFICIAL. NEITHER RECALLED SEEING ANY ANA OR NCSNA
MEMBERSHIP APPLICATIONS AT THE MEETING AND THERE WAS NO REFERENCE TO
MEMBERSHIP HAVING BEEN MENTIONED AT ANY OF THE CONFERENCE DISCUSSIONS.
B. THE WINSTON-SALEM CONFERENCE
TESTIMONY REGARDING THIS CONFERENCE WAS PERMITTED FOR BACKGROUND
INFORMATION. THIS CONFERENCE WAS SPONSORED BY THE NCSNA AND WAS HELD ON
MAY 1, 1973; IT WAS ONE OF A SERIES OF THREE IN NORTH CAROLINA FOR THE
PURPOSE OF DISSEMINATING INFORMATION COMPILED IN A RESEARCH BOOK PROJECT
RELATING TO "OPERATION INPUT" SPONSORED BY THE NCSNA IN COLLABORATION
WITH THE NORTH CAROLINA BOARD OF NURSING AND THE SCHOOL OF NURSING OF
THE UNIVERSITY OF NORTH CAROLINA /17/ THE PROJECT HAD BEEN FUNDED IN
PART WITH FUNDS GRANTED BY THE UNITED STATES DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE TO THE REGIONAL MEDICAL PROGRAM AND TO THE
RESEARCH PROJECT AT THE UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL
WHICH MADE THE PROJECT POSSIBLE. ANNOUNCEMENT OF THE WORKSHOP
CONFERENCE WAS MAILED BY THE SPONSOR TO ALL SCHOOLS OF NURSING,
HOSPITALS (INCLUDING RESPONDENT'S HOSPITAL AT SALISBURY, AND HEALTH CARE
FACILITIES EMPLOYING NURSES IN THE STATE OF NORTH CAROLINA. AS AT
REIDSVILLE, NO CONTACT WAS MADE BY NCSNA, OTHER THAN MAILING THE
ANNOUNCEMENT TO RESPONDENT SALISBURY HOSPITAL AND ANY OF THE OTHER
INSTALLATIONS OR FACILITIES. IT WAS ESTIMATED THAT 110 TO 115
REGISTRANTS ATTENDED INCLUDING SEVERAL FROM SALISBURY. THERE WAS NO
CHARGE FOR THIS SESSION AS REGISTRANTS PAID FOR THEIR OWN LUNCH AND THE
EXPENSES OF THE NCSNA STAFF WERE PAID BY THE ASSOCIATION. THREE STAFF
NURSES EMPLOYED AT SALISBURY WHO ATTENDED THE CONFERENCE TESTIFIED AT
THE HEARING. THEIR TESTIMONY WAS SIMILAR TO THAT INVOLVING THE
REIDSVILLE WORKSHOP. ALL SAID THAT THE CONFERENCE WAS BENEFICIAL TO
THEIR CONTINUING EDUCATION AS NURSES. NO ONE TESTIFIED THAT ANA
MEMBERSHIP APPLICATIONS WERE CONTAINED IN THE PACKAGE THEY HAD RECEIVED
BEFORE THE MEETING BUT ONE OR MORE OF THE WITNESSES MENTIONED THAT SUCH
WERE AVAILABLE ALONG WITH OTHER PUBLICATIONS AND MATERIALS ON AN
ENTRANCE DESK AT THE CONFERENCE.
THERE WAS NO REFERENCE TO MEMBERSHIP HAVING BEEN MENTIONED OR
DISCUSSED AT ANY GROUP MEETING OR DISCUSSION AT EITHER THE REIDSVILLE OR
WINSTON-SALEM CONFERENCES AND NONE OF THE WITNESSES TESTIFIED THAT THEY
WERE URGED TO JOIN THE ANA OR NCSNA.
FRANCIS N. MILLER, NCSNA DIRECTOR, TESTIFIED THAT ALL MATERIAL,
FLYERS, ANNOUNCEMENTS, REGISTRATION FORMS, ETC., FOR THE MAY 1973
MEETING WERE TYPED, PRINTED, COLLATED AND MAILED BY THE NCSNA STATE
OFFICE STAFF. ITS STAFF ALSO HANDLED THE BOOKKEEPING FUNCTIONS FOR BOTH
MEETINGS, OBTAINING THE MEETING PLACE AND MAKING HOTEL OR LODGING
ARRANGEMENTS. NCSNA ACCEPTED THE PRE-REGISTRATIONS, REPRODUCED SPECIAL
MATERIAL FOR THOSE MEETINGS, FURNISHED STANDARD MATERIALS INCLUDING
MEMBERSHIP FORMS THAT WERE USED AT THE MEETINGS. THE COSTS OF PUTTING
ON THE PROGRAM AND DETERMINING THE REGISTRATION FEE WAS ALSO DONE BY
NCSNA. THERE WAS NO CHARGE FOR THE MAY 1 MEETING AS REGISTRANTS PAID
THEIR OWN LUNCHEON EXPENSE.
THIS CONTROVERSY CONCERNS WHETHER AN AGENCY OF THE FEDERAL
GOVERNMENT, IN THIS CASE THE RESPONDENT SALISBURY VETERANS
ADMINISTRATION HOSPITAL, MAY, WITHOUT VIOLATING THE ORDER, GRANTS ITS
NURSING PERSONNEL COMPOSED OF A PROFESSIONAL UNIT REPRESENTED BY
COMPLAINANT, ADMINISTRATIVE LEAVE TO ATTEND AN EDUCATIONAL MEETING OR
WORKSHOP CONFERENCE SPONSORED IN WHOLE OR IN PART BY A PROFESSIONAL
ASSOCIATION ALSO RECOGNIZED AS A LABOR ORGANIZATION. IT HAS BEEN
STIPULATED THAT THE MAY 24-25 CONFERENCE AT REIDSVILLE, NORTH CAROLINA,
WAS SPONSORED BY A CONFERENCE GROUP OF THE NCSNA AND THE LATTER IS
RECOGNIZED AS A LABOR UNION UNDER THE ORDER.
THE COMPLAINANT URGES THAT SECTION 7(D)(3) OF THE ORDER PROVIDING
THAT:
"RECOGNITION OF A LABOR ORGANIZATION DOES NOT
"(3) PRECLUDE AN AGENCY FROM CONSULTING OR DEALING WITH A RELIGIOUS,
SOCIAL, FRATERNAL, PROFESSIONAL OR OTHER LAWFUL ASSOCIATION, NOT
QUALIFIED AS A LABOR ORGANIZATION, WITH RESPECT TO MATTERS OR POLICIES
WHICH INVOLVE INDIVIDUAL MEMBERS OF THE ASSOCIATION OR ARE OF PARTICULAR
APPLICABILITY TO IT OR ITS MEMBERS. CONSULTATIONS AND DEALINGS UNDER
SUBPARAGRAPH (3) OF THIS PARAGRAPH SHALL BE SO LIMITED THAT THEY DO NOT
ASSUME THE CHARACTER OF FORMAL CONSULTATION ON MATTERS OF GENERAL
EMPLOYEE-MANAGEMENT POLICY, EXCEPT AS PROVIDED IN PARAGRAPH (E) /18/ OF
THIS SECTION, OR EXTEND TO AREAS WHERE RECOGNITION OF THE INTERESTS OF
ONE EMPLOYEE GROUP MAY RESULT IN DISCRIMINATION AGAINST OR INJURY TO THE
INTERESTS OF OTHER EMPLOYEES."
MEANS JUST WHAT IT SAYS AND THE CONDITIONING WORDS, "NOT QUALIFIED AS
A LABOR ORGANIZATION" ELIMINATES ALL LABOR ORGANIZATIONS FROM BEING
DEALT WITH UNDER THIS SECTION.
THE PARTY IN INTEREST STATES THAT UNLESS THE POLICY OF RESPONDENT IS
VIOLATIVE OF THE ORDER-- A CONCLUSION CLEARLY NOT CALLED FOR BY REASONS
WHICH HAVE BEEN ADVANCED, THERE IS NO BASIS FOR FINDING A VIOLATION OF
THE ORDER BY THE RESPONDENT. THE POLICY OF THE RESPONDENT WITH RESPECT
TO ITS DEALINGS WITH ALL ORGANIZATION INCLUDING PROFESSIONAL
ASSOCIATIONS SUCH AS NCSNA BOTH PRIOR TO AND AFTER THE LATTER WAS
RECOGNIZED AS A LABOR ORGANIZATION HAS PREVIOUSLY BEEN SET FORTH; /19/
IN INTERNAL REVENUE SERVICE, CHICAGO DISTRICT, A/SLMR, NO. 279 THE
ASSISTANT SECRETARY ADOPTED THE FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
". . . THAT SECTION 7(D)(1) OF THE ORDER DOES NOT CONFER RIGHTS ON
EMPLOYEES BUT SIMPLY DISAVOWS TAKING AWAY CERTAIN RIGHTS THAT MAY BE
CONFERRED ELSEWHERE BY LAW OR REGULATION." I AM OF THE OPINION THAT THE
SAME APPLIES TO SECTION 7(D)(3) AS EXPRESSED BY THE ADMINISTRATIVE LAW
JUDGE IN HIS DECISION UPON WHICH A/SLMR NO. 279 WAS BASED. SECTION
7(D)(3) PROVIDES THAT EXCLUSIVE RECOGNITION DOES NOT PRECLUDE DEALING
WITH RELIGIOUS, PROFESSIONAL, OR OTHER LAWFUL ASSOCIATIONS NOT QUALIFIED
AS A LABOR ORGANIZATION CONCERNING MATTERS OF PARTICULAR APPLICABILITY
TO MEMBERS OF SUCH ASSOCIATION. SURELY, IT IS NOT ARGUED THAT SECTION
7(D)(3) CONFERS ON SUCH ASSOCIATIONS THE RIGHT TO BE DEALT WITH
CONCERNING SUCH MATTERS; IT IS SIMPLY NOT PRECLUDED. THE PROVISIONS OF
SECTION 7(D)(1) CONCERNING THE SELECTION OF A REPRESENTATIVE IN A
GRIEVANCE PROCEEDING, ARE THE SAME, MUTATIS MUTANDIS, AS THE PROVISIONS
OF SECTION 7(D)(2) AND 7(D)(3). THESE PROVISIONS SPEAK AS TO WHAT THEY
DO NOT DO. THEY DO NOT PRECLUDE CERTAIN CONDUCT BY EXECUTIVE AGENCIES.
THEY DO NOT THEREBY CREATE ANY RIGHTS IN THE ORGANIZATIONS OR THEIR
EMPLOYEES TO ENGAGE IN THAT CONDUCT.
IN FEDERAL AVIATION ADMINISTRATION, ATLANTA, ATC TOWER, A/SLMR NO.
300, THE ASSISTANT SECRETARY HELD THAT THE AIR TRAFFIC CONTROL
ASSOCIATION, INC., (ATCA) HAD MATERIALLY CHANGED ITS ORGANIZATIONS AND
OPERATIONS SINCE THE ISSUANCE OF A/SLMR NO. 10, AND THAT ITS CURRENT
RELATIONSHIP WITH THE FEDERAL AVIATION ADMINISTRATION IS CONSISTENT WITH
THAT PERMITTED A PROFESSIONAL ASSOCIATION UNDER SECTION 7(D)(3) OF THE
ORDER. FURTHER, IT WAS STATED:
"IN FINDING THAT THE ADMINISTRATIVE LAW JUDGE HAD TOO NARROWLY
INTERPRETED THE TYPES OF 'CONSULTATIONS' AND 'DEALINGS' WHICH A
PROFESSIONAL ASSOCIATION AND AN AGENCY OR AN ACTIVITY MAY PROPERLY
ENGAGE IN UNDER SECTION 7(D)(3) WITHOUT CAUSING THE PROFESSIONAL
ASSOCIATION TO ASSUME THE CHARACTERISTICS OF A LABOR ORGANIZATION WITHIN
THE MEANING OF SECTION 2(E) OF THE ORDER, THE ASSISTANT SECRETARY NOTED
THAT ATCA'S CONSULTATIONS AND DEALINGS WITH THE FAA DID NOT ASSUME THE
CHARACTER OF FORMAL CONSULTATIONS OF GENERAL EMPLOYEE-MANAGEMENT POLICY.
WITH RESPECT TO SUCH DEALINGS HE OBSERVED THAT THE PERTINENT ISSUE IS
NOT THE AMOUNT OF CONTACT BETWEEN A PROFESSIONAL ASSOCIATION AND AN
AGENCY OR ACTIVITY, BUT, RATHER, THE NATURE OF THEIR CONSULTATIONS AND
DEALINGS. TO PUT A MORE RESTRICTIVE MEANING ON THE CONSULTATIONS AND
DEALINGS PERMITTED A PROFESSIONAL ASSOCIATION UNDER SECTION 7(D)(3)
WOULD, IN THE ASSISTANT SECRETARY'S VIEW RENDER THAT SECTION NUGATORY
AND BE INCONSISTENT WITH THE INTENT OF THE ORDER AS EXPRESSED IN THE
REPORT AND RECOMMENDATIONS (1971) OF THE FEDERAL LABOR RELATIONS
COUNCIL."
IT HAS BEEN LONG WELL ESTABLISHED THAT AN ACTIVITY'S RELIANCE ON
AGENCY DIRECTIVES DOES NOT DIVEST THE ASSISTANT SECRETARY OF AUTHORITY
TO FIND VIOLATION OF SECTION 19(A) OF THE EXECUTIVE ORDER. (CHARLESTON
NAVAL SHIPYARD, A/SLMR, NO. 1). WHEN THE RESPONDENT'S POLICY RELATING
TO ATTENDANCE OF ITS EMPLOYEES AT PROFESSIONAL MEETINGS OR CONFERENCES
IS EXAMINED, IT IS NOT MATERIALLY DIFFERENT FROM THAT EXPRESSED BY THE
ASSISTANT SECRETARY IN FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC
TOWER, A/SLMR, NO. 300. WHILE THE MOST UTMOST CARE MUST BE EXERCISED BY
AN AGENCY TO ASSURE THAT THE NATURE OF ITS CONTACTS BETWEEN A
PROFESSIONAL ASSOCIATION THAT IS ALSO A LABOR ORGANIZATION DO NOT ASSUME
THE CHARACTER OF FORMAL CONSULTATION ON MATTERS OF GENERAL
EMPLOYEE-MANAGEMENT POLICY, I DO NOT FIND IT A PER-SE VIOLATION OF THE
ORDER FOR AGENCY PROFESSIONAL EMPLOYEES TO ATTEND PROFESSIONAL WORKSHOP
CONFERENCES RELATED TO THEIR CAREER EDUCATIONAL AND PROFESSIONAL
DEVELOPMENT. THUS, I DO NOT FIND THE RESPONDENT'S POLICY OF PERMITTING
ITS PROFESSIONAL EMPLOYEES TO ATTEND A STRICTLY PROFESSIONAL MEETING OR
CONFERENCE OF A PROFESSIONAL ASSOCIATION WHICH IS ALSO A LABOR
ORGANIZATION AS BEING IN VIOLATION OF SECTION 19(A)(1) AND (3) OF THE
ORDER.
I ALSO FIND THAT THERE WERE NOT CONSULTATIONS OR DEALINGS BY IT WITH
THE RESPONDENT WHICH ASSUMED THE CHARACTER OF FORMAL CONSULTATIONS OF
GENERAL EMPLOYEE-MANAGEMENT POLICY. ALL MATTERS AT REIDSVILLE, WERE
SPONSORED BY THE PSYCHIATRIC-MENTAL HEALTH GROUP AND WERE FOR ALL
PRACTICAL PURPOSES HEREIN CONCERNED ENTIRELY OF A PROFESSIONAL NATURE.
I FURTHER FIND THAT THERE WERE NO CONSULTATIONS OR DEALINGS BETWEEN
RESPONDENT AND NCSNA WHICH EXTENDED TO AREAS WHERE RECOGNITION OF THE
INTERESTS OF ONE EMPLOYEE GROUP COULD RESULT IN DISCRIMINATION AGAINST
OR INJURY TO THE INTERESTS OF OTHER EMPLOYEES.
THE SUPPLEMENTAL AGREEMENT FOR PROFESSIONAL UNIT SIGNED BY
REPRESENTATIVES OF THE AGENCY AND AFGE LOCAL 1738 APPROVED DURING 1970
CONTAINS THE FOLLOWING PROVISION IN SECTION XII, ENTITLED SELECTION OF
TOURS OF DUTY, PARAGRAPH 9:
"WHEN PRACTICABLE, SUPERVISORS WITH THE CONCURRENCE OF THE
APPROPRIATE DIVISION OF SERVICE CHIEF ARE ENCOURAGED TO SCHEDULE AN
EMPLOYEE'S HOURS OF DUTY THAT HE MAY TAKE ADVANTAGE OF EDUCATIONAL
OPPORTUNITIES WHICH ARE JUDGED TO BE OF A CAREER VALUE. AN EXCEPTION TO
THE SCHEDULING PROVISIONS OF THIS AGREEMENT MAY BE MADE FOR THIS
PURPOSE." /20/
THE UNDISPUTED EVIDENCE AS IT RELATES TO THE POLICY OF RESPONDENT
AGENCY WAS THAT IT HAD BEEN GRANTING TO ITS PROFESSIONAL NURSES SINCE
1926, WHEN THEY COULD BE SPARED, ADMINISTRATIVE LEAVE TO ATTEND
WORTHWHILE EDUCATIONAL PROGRAMS OF CAREER VALUE DESIGNATED TO IMPROVE OR
ENHANCE THEIR ABILITY TO DELIVER BETTER PATIENT CARE. SPONSORS OF SUCH
PROGRAMS WERE IMMATERIAL; MANY CONFERENCES HAD BEEN PROMOTED IN WHOLE
OR PARTY BY VA AND NON-VA HOSPITALS, EDUCATIONAL INSTITUTIONS SUCH AS
STATE UNIVERSITIES AND VARIOUS PROFESSIONAL ORGANIZATIONS AND
ASSOCIATIONS INCLUDING ANA AND NCSNA SINCE AT LEAST 1952. IT IS
INTERESTING TO NOTE THAT SOME OF THE WITNESSES WHO ATTENDED THE
CONFERENCES IN MAY 1973 WERE UNAWARE AS TO WHAT ORGANIZATION WAS
SPONSORING THE RESPECTIVE PROGRAM, BUT ALL TESTIFIED AS TO THE
ENRICHMENT AND EDUCATIONAL VALUE THEY DERIVED BY HAVING ATTENDED. I
FIND THAT THE SUBJECT MATTER OF THE MAY 1973 WORKSHOP CONFERENCE WAS OF
A PROFESSIONAL AND EDUCATIONAL NATURE RELATED TO IMPROVEMENT OF NURSING
CARE AND PRACTICE AND THERE WERE NO DEALINGS OR CONSULTATIONS BY THE
RESPONDENT WITH THE NCSNA IN CONFLICT WITH THE COLLECTIVE BARGAINING
AGREEMENT.
THE RESPONDENT AGENCY HAD THE RESPONSIBILITY UNDER SECTION 12(B) OF
THE ORDER TO MAINTAIN THE EFFICIENCY OF GOVERNMENT OPERATIONS EXTENDED
TO IT AND TO DETERMINE THE METHODS, MEANS AND PERSONNEL BY WHICH ITS
OPERATIONS WERE TO BE CONDUCTED. PAYMENT OF SALARY FOR ADMINISTRATIVE
LEAVE TO AGENCY PROFESSIONAL EMPLOYEES TO ATTEND WORTHWHILE EDUCATIONAL
PROGRAMS OF CAREER VALUE IS A MATTER OF PRIVILEGE RESERVED TO AGENCY
MANAGEMENT UNDER THAT SECTION. THIS IS PARTICULARLY SO WHERE THERE IS
NO DIRECT OR SIGNIFICANT CONTACT BETWEEN THE AGENCY AND PROGRAM SPONSOR
AND THE ONLY BENEFIT INVOLVED IS SALARY PAID DIRECTLY TO PROFESSIONALS
FOR THE ADMINISTRATIVE LEAVE GRANTED TO ATTEND A PROFESSIONAL MEETING.
THE REGISTRATION CHARGE WAS PAID BY THE EMPLOYEE TO COVER THE EXPENSE OF
THE MEETING AND THERE WAS NO PAYMENT BY THE RESPONDENT OF ANY SUM
INURING TO THE BENEFIT OF THE PSYCHIATRIC MENTAL HEALTH CONFERENCE GROUP
OR THE NCSNA. THE MATTER OF PRIVILEGE WITH REGARD TO PAYMENT DOES NOT
EXTEND TO WHETHER THE GRANTING OF ADMINISTRATIVE LEAVE MAY BE IN
VIOLATION OF THE ORDER. HOWEVER, IN THIS CASE, IT IS NOTED THAT THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES PROVIDED FOR AND
ENCOURAGED TOURS OF DUTY TO ACCOMMODATE EMPLOYEES DESIRING TO TAKE
ADVANTAGE OF EDUCATIONAL OPPORTUNITIES JUDGED TO BE OF CAREER VALUE.
IN ANY EVENT, SECTION XII, PARAGRAPH 9 OF THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN RESPONDENT AND COMPLAINANT ENCOURAGED AGENCY CHIEFS OR
SUPERVISORS TO SCHEDULE ITS EMPLOYEES HOURS OF DUTY TO TAKE ADVANTAGE OF
EDUCATIONAL OPPORTUNITIES JUDGED TO BE OF A CAREER VALUE. THE
UNCONTRADICTED TESTIMONY SHOWS THAT THE CONFERENCE OR PROGRAMS SPONSORED
BY THE NCSNA IN MAY 1973 MET THIS TEST.
ON THE BASIS OF THE FOREGOING AND THE ENTIRE RECORD, I FIND:
1. THAT THE POLICY OF RESPONDENT WITH RESPECT TO GRANTING
ADMINISTRATIVE LEAVE TO ITS PROFESSIONAL NURSING EMPLOYEES REPRESENTED
BY COMPLAINANT TO ATTEND EDUCATIONAL MEETINGS SPONSORED BY ORGANIZATIONS
AND ASSOCIATIONS INCLUDING THE NCSNA WAS NOT IN VIOLATION OF SECTION
19(A)(3) OF THE ORDER.
2. THERE WERE NO CONSULTATIONS AND DEALINGS BY NCSNA WITH THE
VETERANS ADMINISTRATION WHICH ASSUMED THE CHARACTER OF FORMAL
CONSULTATIONS OF GENERAL EMPLOYEE-MANAGEMENT POLICY OR WHICH EXTENDED TO
AREAS WHERE RECOGNITION OF THE INTERESTS OF ONE EMPLOYEE GROUP MAY
RESULT IN DISCRIMINATION AGAINST OR INJURY TO THE INTERESTS OF OTHER
EMPLOYEES.
3. THAT THE GRANT OF ADMINISTRATIVE LEAVE BY THE RESPONDENT TO ITS
AGENCY PROFESSIONAL EMPLOYEES WAS IN CONFORMITY WITH AND NOT IN
VIOLATION OF THE COLLECTIVE BARGAINING AGREEMENT BETWEEN COMPLAINANT AND
RESPONDENT WHEREBY AGENCY SUPERVISORS WERE ENCOURAGED TO SCHEDULE
EMPLOYEES' HOURS OF DUTY TO TAKE ADVANTAGE OF EDUCATIONAL OPPORTUNITIES
JUDGED TO BE OF CAREER VALUE; THE RESPONDENT IS NOT FOUND TO HAVE A
SPONSORED, CONTROLLED OR GIVEN ASSISTANCE TO A LABOR ORGANIZATION IN
VIOLATION OF SECTION 19(A)(3) OF THE ORDER; AND
4. THAT RESPONDENT'S AGENCY MANAGEMENT DID NOT VIOLATE SECTION
19(A)(1) OF THE ORDER BY INTERFERING WITH, RESTRAINING, OR COERCING ANY
OF ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED THEM UNDER THE ORDER.
/21/
IN VIEW OF THE ENTIRE RECORD, I CONCLUDE THAT THE COMPLAINANT HAS NOT
SUSTAINED ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT
THE RESPONDENT VIOLATED THE PROVISIONS OF SECTION 19(A)(1) AND (3) OF
THE ORDER. /22/
UPON THE BASIS OF THE ABOVE FINDING, CONCLUSION, AND THE ENTIRE
RECORD, I RECOMMEND THAT THE ASSISTANT SECRETARY:
1. DENY THE COMPLAINANT'S MOTION TO DISMISS THE NCSNA AS A PARTY IN
INTEREST TO THIS PROCEEDING;
2. DENY THE COMPLAINANT'S MOTION AND AMEND THE COMPLAINT BY ADDING
ALLEGED VIOLATIONS OF SECTION 19(A)(2), (5), AND (6) OF THE ORDER TO
THOSE SPECIFIED IN THE COMPLAINT;
3. DENY THE COMPLAINANT'S MOTION TO AMEND ITS COMPLAINT TO INCLUDE
ALLEGATIONS OF AN UNFAIR LABOR PRACTICE INCIDENT OCCURRING MORE THAN SIX
MONTHS PRIOR TO THE HEARING AND RELATING TO THE WINSTON-SALEM, NORTH
CAROLINA CONFERENCE HELD ON MAY 1, 1973; AND
4. DISMISS ON THE MERITS THE COMPLAINT ALLEGING VIOLATIONS OF
SECTION 19(A)(1) AND (3) OF THE ORDER.
DATED: APRIL 4, 1974
WASHINGTON, D.C.
/1/ THE MEMORANDUM, COMPLAINANT EXHIBIT 3-B, SATED THAT MEMBERSHIP IN
THE CONFERENCE GROUP WAS OPEN TO ANY MEMBER OF NCSNA WHO HOLDS A
POSITION IN THE MENTAL HEALTH FIELDS WHO WAS INTERESTED IN THIS AREA OF
NURSING PRACTICES BUT THAT THE PROGRAM SESSIONS WERE OPEN TO ANY NURSE
WHETHER OR NOT SHE HOLDS MEMBERSHIP IN NCSNA.
/2/ RUBY MILLER WAS IDENTIFIED DURING THE HEARING AS BEING ASSOCIATE
CHIEF, NURSING SERVICE FOR EDUCATION AT SALISBURY VA HOSPITAL AND A
MEMBER OF ANA.
/3/ IDENTIFIED DURING THE HEARING AS WANDA BRANDT, ONE OF NINE HEAD
NURSES AT VA HOSPITAL, SALISBURY, NORTH CAROLINA; SHE WAS NOT A MEMBER
OF ANA.
/4/ SEE ALSO COMPLAINANT EXHIBIT NO. 3-A.
/5/ I DID NOT CONSIDER IT NECESSARY TO CONSIDER THE NCSNA MOTION TO
DISMISS COMPLAINANT'S MOTION TO ELIMINATE NCSNA AS A PARTY IN INTEREST
IN ORDER TO INTERVENE AT THE HEARING UNDER SECTION 203.11 OF THE
REGULATIONS, INASMUCH AS IT HAD ALREADY BEEN DESIGNATED AS A PARTY IN
INTEREST BY THE ASSISTANT REGIONAL DIRECTOR, OR TO EXERCISE DISCRETION
UNDER SECTION 203.18 AND 203.15(G) AND (N) TO PERMIT INTERVENTION AT THE
HEARING.
/6/ SEE 29 C.F.R., PART II, SECTION 203.3, 203.4, 203.5(A)(2) AND (B)
AND 203.9(A)(4), (B) AND (C).
/7/ TESTIMONY OF THE PRESIDENT OF AFGE LOCAL 1738 AND DOCUMENTARY
EVIDENCE SUBMITTED SHOW THAT COMPLAINANT WAS AWARE OF THE REIDSVILLE AND
WINSTON-SALEM CONFERENCES IN JUNE 1973 AND THERE HAD BEEN NO CHANGE IN
SITUATION PRIOR TO OR WITHIN A REASONABLE PERIOD AFTER FILING OF THE
COMPLAINT WHICH WOULD HAVE PRECLUDED DISCLOSURE AND INVESTIGATION OF THE
CHARGES BY THE ASSISTANT REGIONAL DIRECTOR HAD SUCH BEEN ALLEGED.
/8/ SECTION 203.2 PROVIDES THAT:
"ANY CHARGE OF AN UNFAIR LABOR PRACTICE OCCURRING AFTER JANUARY 1,
1970, SHALL BE FILED DIRECTLY WITH THE PARTY OR PARTIES AGAINST WHOM THE
CHARGE IS DIRECTED WITHIN SIX (6) MONTHS OF THE OCCURRENCE OF THE
ALLEGED UNFAIR PRACTICE. THE ALLEGED UNFAIR LABOR PRACTICES SHALL BE
INVESTIGATED BY THE PARTIES INVOLVED AND INFORMAL ATTEMPTS TO RESOLVE
THE MATTER SHALL BE MADE BY THE PARTIES. IF INFORMAL ATTEMPTS ARE
UNSUCCESSFUL IN DISPOSING OF THE MATTER WITHIN (30) DAYS, (A) THE
PARTIES MAY AGREE TO STIPULATE THE FACTS TO THE ASSISTANT SECRETARY AND
REQUEST A DECISION WITHOUT A HEARING OR (B) A PARTY MAY FILE A COMPLAINT
REQUESTING THE ASSISTANT SECRETARY TO ISSUE A DECISION IN THE MATTER:
PROVIDED, HOWEVER, THAT A COMPLAINT TO THE ASSISTANT SECRETARY SHALL NOT
BE CONSIDERED TIMELY UNLESS FILED WITHIN NINE (9) MONTHS OF THE
OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE OR WITHIN THIRTY (30)
DAYS OF THE RECEIPT OF THE CHARGING PARTY OF THE FINAL DECISION
WHICHEVER IS THE SHORTER PERIOD OF TIME.
SECTION 203.3 PROVIDES IN PART THAT A COMPLAINT ALLEGING A VIOLATION
OF SECTION 19 OF THE ORDER SHALL BE SUBMITTED ON FORMS PRESCRIBED BY THE
ASSISTANT SECRETARY AND SHALL CONTAIN THE FOLLOWING:
"(C) A CLEAR AND CONCISE STATEMENT OF THE FACTS CONSTITUTING THE
ALLEGED UNFAIR LABOR PRACTICE, INCLUDING THE TIME AND PLACE OF
OCCURRENCE OF THE PARTICULAR ACTS AND A STATEMENT OF THE PORTION OR
PORTIONS OF THE ORDER ALLEGED TO HAVE BEEN VIOLATED."
/9/ RESPONDENT EXHIBIT NO. 2, PP. 7-9.
/10/ PROFESSIONAL WAS ADDED TO THE TYPES OF LAWFUL ASSOCIATIONS NOT
QUALIFIED AS LABOR ORGANIZATION BY EXECUTIVE ORDER 11616 ON AUGUST 26,
1971, WHICH AMENDED EXECUTIVE ORDER 11491. IN THE RECOMMENDATION FOR
AMENDMENT OF SECTION 7(D)(3) IT WAS STATED:
"IN SOME INSTANCES, AGENCIES MAY BE OVERLY FEARFUL OF VIOLATING THE
RIGHTS OF RECOGNIZED ORGANIZATIONAL AND UNNECESSARILY REFRAIN FROM
PROPER DEALINGS WITH PROFESSIONAL ASSOCIATIONS ON PURELY PROFESSIONAL
MATTERS. TO MAINTAIN SUCH COMMUNICATIONS AND TO AVOID FURTHER
MISUNDERSTANDINGS, WE RECOMMEND THAT 'PROFESSIONAL' BE EXPLICITLY
INCLUDED AMONG THE TYPES OF ASSOCIATIONS LISTED IN SECTION 7(D)(3) WITH
WHICH AN AGENCY MAY HAVE LIMITED DEALINGS NOT INCONSISTENT WITH THE
RIGHTS OF RECOGNIZED LABOR ORGANIZATIONS.
/11/ LABOR ORGANIZATION AS DEFINED UNDER SECTION 2(E) OF THE ORDER
"MEANS A LAWFUL ORGANIZATION OF ANY KIND IN WHICH EMPLOYEES PARTICIPATE
AND WHICH EXIST FOR THE PURPOSE, IN WHOLE OR IN PART, OF DEALING WITH
AGENCIES CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR
OTHER MATTERS AFFECTING THE WORKING CONDITIONS TO THEIR EMPLOYEES."
/12/ A 1963 PROFESSIONAL SERVICE LETTER-NO. 63-2 STATED IN PART:
"THE AMERICAN NURSES' ASSOCIATION PURPOSES INCLUDE 'TO FOSTER HIGH
STANDARDS OF NURSING PRACTICE AND TO PROMOTE THE PROFESSIONAL AND
EDUCATIONAL ADVANCEMENT OF NURSES.' PLEASE BRING TO THE ATTENTION OF ALL
NURSES THE FACT THAT THESE GOALS OF THE ASSOCIATION ARE UNIQUELY IN
HARMONY WITH THE DEPARTMENT'S BASIC POLICY CONCERNING PROFESSIONAL
RELATIONSHIPS AND THAT PARTICIPATION IN THE NURSES'S ASSOCIATION
PROFESSIONAL ACTIVITIES SHOULD LEAD TO IMPROVEMENTS IN NURSING CARE
PRACTICES. TO THE LATTER END, YOU WILL RECALL THAT PRESENT POLICY ALSO
AUTHORIZES HOSPITAL DIRECTORS TO EXCUSE THE ABSENCES OF NURSES TO ATTEND
NATIONAL, STATE, AND LOCAL PROFESSIONAL MEETINGS WITHOUT CHARGE TO
LEAVE."
/13/ RESPONDENT'S EXHIBIT 1-D AND 1-E. ALSO DMES SUPPLEMENT TO MP-5,
PART II, CHAPTER 7, CHANGE 1, PARAGRAPH H(2) WHICH PROVIDES:
"EDUCATION AND TRAINING. HEADS OF FIELD STATIONS OR THEIR STAFF ARE
AUTHORIZED TO APPROVE WITHOUT CHARGE TO LEAVE THE ABSENCE OF PHYSICIANS,
DENTISTS, AND NURSES . . . AND CAREER INTERNS AND CAREER RESIDENTS . . .
TO ATTEND EDUCATIONAL CONFERENCES, SEMINARS, COURSES OF INSTRUCTION, ETC
. . . SUCH ABSENCES MAY BE AUTHORIZED PROVIDED THE EMPLOYEE CAN BE
SPARED AND NO EXPENDITURE OF GOVERNMENT FUNDS OTHER THAN SALARY IS
INVOLVED . . . . IN APPROVING REQUESTS FOR AUTHORIZED ABSENCES FOR
EDUCATIONAL PURPOSES, CONSIDERATION WILL BE GIVEN TO THE TYPE OF
PROGRAM, THE POTENTIAL VALUE TO THE VA OF SUCH ATTENDANCE AND THE VALUE
TO BE DERIVED FROM ESTABLISHING AND MAINTAINING A LIAISON BETWEEN
COLLEGES OR UNIVERSITIES AND THE DEPARTMENT OF MEDICINE AND SURGERY.
/14/ NOTHING WAS DONE IF THE PROGRAMS WAS CONSIDERED UNWORTHWHILE.
/15/ TESTIMONY AT THE HEARING REVEALED THE METHODS OF NOTICE OF A
CONFERENCE WOULD BE AN ANNOUNCEMENT AT A GENERAL MEETING OF NURSES,
POSTING ON THE NURSES' BULLETIN BOARD, OR BY WORD PASSED ALONG TO WARD
NURSES BY A SUPERVISOR OR ASSOCIATE NURSE WHO HAD SEEN OR LEARNED OF THE
ANNOUNCEMENT.
/16/ PARTY IN INTEREST EXHIBIT NO. 2 AND COMPLAINANT EXHIBIT NO.
3(B) AND (C).
/17/ PARTY IN INTEREST EXHIBIT NO. 7.
/18/ SECTION 7(E) AND (F) OF THE ORDER PROVIDES:
"(E) AN AGENCY SHALL ESTABLISH A SYSTEM FOR INTRA-MANAGEMENT
COMMUNICATION AND CONSULTATION WITH ITS SUPERVISORS OR ASSOCIATION OF
SUPERVISORS. THESE COMMUNICATIONS AND CONSULTATIONS SHALL HAVE AS THEIR
PURPOSES THE IMPROVEMENT OF AGENCY OPERATIONS, THE IMPROVEMENT OF
WORKING CONDITIONS OF SUPERVISORS, THE EXCHANGE OF INFORMATION, THE
IMPROVEMENT OF MANAGERIAL EFFECTIVENESS AND ESTABLISHMENT OF POLICIES
THAT BEST SERVE THE PUBLIC INTEREST IN ACCOMPLISHING THE MISSION OF THE
AGENCY.
"(F) INFORMAL RECOGNITION OR FORMAL RECOGNITION SHALL NOT BE
AWARDED."
/19/ SEE FOOTNOTES 11 AND 12, SUPRA.
/20/ COMPLAINANT EXHIBIT NO. 4.
/21/ EMPLOYEE RIGHTS ARE SET FORTH IN SECTION 1(A) OF THE ORDER
AWARDS IT IS PROVIDED THAT:
"EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS
THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM,
JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM ANY SUCH
ACTIVITY, AND ANY SUCH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF
THIS RIGHT. . . ."
/22/ SECTION 203.14 OF THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR MANAGEMENT RELATIONS PROVIDES:
"A COMPLAINANT IN ASSERTING A VIOLATION OF THE ORDER SHALL HAVE THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE."