4 A/SLMR 423; P. 532; CASE NO. 71-2709; AUGUST 26, 1974.
SEATTLE REGIONAL OFFICE,
SMALL BUSINESS ADMINISTRATION,
SEATTLE, WASHINGTON
A/SLMR NO. 423
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3196 (COMPLAINANT)
AGAINST THE SEATTLE REGIONAL OFFICE, SMALL BUSINESS ADMINISTRATION,
SEATTLE, WASHINGTON (RESPONDENT) ALLEGING THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BY THE UNILATERAL WITHDRAWAL OF AN
AGREEMENT DURING THE COURSE OF NEGOTIATIONS REGARDING DUES WITHHOLDING
AND ADMINISTRATIVE LEAVE AND BY CONDITIONING SUCH WITHDRAWAL UPON THE
COMPLAINANT'S MODIFICATION OF ITS POSITION DURING NEGOTIATIONS WITH
RESPECT TO CERTAIN IMPASSED ITEMS. IT ALSO WAS ALLEGED THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER ON THE BASIS
THAT ITS CONDUCT AS DESCRIBED WAS DIRECTED TOWARD DISCOURAGING
MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATING AGAINST EMPLOYEES
WITH RESPECT TO TERMS AND CONDITIONS OF EMPLOYMENT.
THE EVIDENCE ESTABLISHED THAT THE RESPONDENT AND THE COMPLAINANT
COMMENCED NEGOTIATIONS IN JANUARY 1973, AND REACHED AN IMPASSE ON FOUR
ISSUES ON OR ABOUT APRIL 25, 1973. ON APRIL 25, 1973, THE RESPONDENT
WITHDREW ITS PRIOR AGREEMENT WITH RESPECT TO AN ADMINISTRATIVE LEAVE
PROVISION BASED ON ITS DETERMINATION THAT THE TERMS OF THE PROVISION
WERE IN CONFLICT WITH POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL. AT THE SAME TIME, THE RESPONDENT WITHDREW ITS PREVIOUS
AGREEMENT WITH RESPECT TO A DUES CHECKOFF WITHHOLDING ARTICLE BASED ON A
STUDY BEING CONDUCTED BY ITS CENTRAL OFFICE ON THE COST OF DUES CHECKOFF
TO THE AGENCY WHICH IT BELIEVED WOULD POSSIBLY RESULT IN A CHANGE IN
AGENCY POLICY PRIOR TO CONSUMMATION OF THE AGREEMENT. THE COMPLAINANT
CONTENDED THAT THE RESPONDENT'S ACTION IN WITHHOLDING THESE PROVISIONS
WAS VIOLATIVE OF THE ORDER BECAUSE SUCH ACTION WAS CONTRARY TO THE TERMS
OF THE PARTIES' MEMORANDUM OF UNDERSTANDING WHICH THE COMPLAINANT
CLAIMED PRECLUDED EITHER PARTY FROM WITHDRAWING AGREED-UPON ITEMS,
ABSENT THE MUTUAL CONSENT OF BOTH PARTIES.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT BECAUSE THE PROVISION ON
ADMINISTRATIVE LEAVE WAS IN CONFLICT WITH THE POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL AND SECTION 12 OF THE ORDER, THE RESPONDENT'S
WITHDRAWAL OF ITS AGREEMENT AS TO THIS PROVISION WAS NOT VIOLATIVE OF
THE ORDER. FURTHER, ALTHOUGH FINDING THAT UNDER THE TERMS OF THE
PARTIES' MEMORANDUM OF UNDERSTANDING ONE PARTY COULD NOT UNILATERALLY
WITHDRAW FROM CONSIDERATION ITEMS PREVIOUSLY AGREED UPON BETWEEN THE
PARTIES, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S
WITHDRAWAL OF THE DUES WITHHOLDING ARTICLE WAS NOT VIOLATIVE OF THE
ORDER. IN THIS LATTER REGARD, HE NOTED, AMONG OTHER THINGS, THAT THE
RESPONDENT ACTED IN GOOD FAITH THROUGHOUT THE NEGOTIATIONS AND DID ALL
THAT COULD BE REASONABLY EXPECTED OF IT TO ARRIVE AT A FINAL AGREEMENT;
THAT THE RESPONDENT REACHED AN AGREEMENT WITH THE COMPLAINANT ON THE
ISSUES OF THE DUES WITHHOLDING BY REINSTATING ITS PRIOR AGREEMENT; AND
THAT THE RESPONDENT CONTINUED ITS EFFORTS TO REACH AN AGREEMENT WITH THE
COMPLAINANT EVEN AFTER THE LATTER TERMINATED THE NEGOTIATIONS.
ACCORDINGLY, HE CONCLUDED THAT THE 19(A)(1) AND (6) ALLEGATIONS IN THE
COMPLAINT WERE WITHOUT MERIT AND SHOULD BE DISMISSED.
AS TO THE ALLEGED VIOLATION OF SECTION 19(A)(2) OF THE ORDER, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THERE WAS NO EVIDENCE THAT THE
RESPONDENT HAD ENGAGED IN ANY DISCRIMINATORY CONDUCT AGAINST EMPLOYEES
WHICH WAS DESIGNED TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION. UNDER THESE CIRCUMSTANCES, HE RECOMMENDED DISMISSAL OF
THE 19(D)(2) ALLEGATION.
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 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE. HOWEVER, IN REACHING HIS DECISION, THE
ASSISTANT SECRETARY DID NOT ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDING
THAT IN WITHDRAWING ITS PREVIOUS AGREEMENT TO A PROVISION CONCERNING
DUES WITHHOLDING, THE RESPONDENT BREACHED THE TERMS OF THE PARTIES'
MEMORANDUM OF UNDERSTANDING. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
SEATTLE REGIONAL OFFICE,
SMALL BUSINESS ADMINISTRATION,
SEATTLE, WASHINGTON
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3196
ON MAY 6, 1974, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW 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
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. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 71-2709 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 26, 1974
LABOR FOR LABOR-MANAGEMENT RELATIONS
/1/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT UNDER
ALL OF THE CIRCUMSTANCES OF THIS CASE, THE RESPONDENT NEGOTIATED IN GOOD
FAITH AND DID NOT ACT IN A MANNER INCONSISTENT WITH ITS BARGAINING
OBLIGATIONS UNDER THE ORDER WHEN IT WITHDREW PREVIOUSLY AGREED-UPON
PROVISIONS WHILE NEGOTIATIONS STILL WERE IN PROGRESS. HOWEVER, IN
REACHING THE DECISION HEREIN, I DO NOT ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDING THAT IN WITHDRAWING ITS PREVIOUS AGREEMENT TO A
PROVISION CONCERNING DUES WITHHOLDING, THE RESPONDENT BREACHED THE TERMS
OF THE PARTIES' MEMORANDUM OF UNDERSTANDING.
IN THE MATTER OF
SEATTLE REGIONAL OFFICE
SMALL BUSINESS ADMINISTRATION
SEATTLE, WASHINGTON,
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 3196
SEATTLE, WASHINGTON,
APPEARANCES:
CARSON L. STANDIFER
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
4614 EAST 143RD STREET
TACOMA, WASHINGTON 98446
ERNEST J. NORMAN, ESQUIRE
SMALL BUSINESS ADMINISTRATION
1441-L STREET, N.W.
WASHINGTON, D.C. 20416
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT ON AUGUST 21, 1973, BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO) LOCAL UNION 3196, SEATTLE, WASHINGTON (HEREINAFTER
REFERRED TO AS COMPLAINANT AND/OR UNION) AGAINST THE SEATTLE REGIONAL
OFFICE SMALL BUSINESS ADMINISTRATION (HEREINAFTER REFERRED TO AS THE
RESPONDENT), ALLEGING THAT THE RESPONDENT ENGAGED IN CERTAIN CONDUCT
VIOLATIVE OF SECTIONS 19(A)(1), (2) AND (6) OF EXECUTIVE ORDER 11491
(HEREINAFTER CALLED THE ORDER). ESSENTIALLY, THE COMPLAINT CHARGES
THAT:
(1) THE SMALL BUSINESS ADMINISTRATION THROUGH ITS CHIEF NEGOTIATOR,
AGENT AND ACTING REGIONAL COUNSEL, DULCIE YOUNG, SINCE ABOUT MAY 14,
1973, ENGAGED IN CONDUCT VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE
ORDER BY THE UNILATERAL WITHDRAWAL OF AN AGREEMENT DURING THE COURSE OF
NEGOTIATIONS REGARDING THE WITHHOLDING OF DUES AND ADMINISTRATIVE LEAVE
FOR LOCAL 3196 UNION EMPLOYEES.
(2) THE ACTIVITY FURTHER VIOLATED SECTIONS 19(A)(1) AND (6) OF THE
ORDER WHEN ITS AGENTS CONDITIONED NEGOTIATIONS WITH RESPECT TO CERTAIN
IMPASSED ITEMS TO WITHDRAW ITS AGREEMENT ON DUES WITHHOLDING AND
ADMINISTRATIVE LEAVE POSITIONS UNLESS THE EXCLUSIVE REPRESENTATIVE WOULD
MODIFY ITS DEMANDS AT THE NEGOTIATING TABLE WITH RESPECT TO CERTAIN
IMPASSED ITEMS; AND
(3) THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER AS
ITS CONDUCT HAD THE AIM OR OBJECT OF DISCOURAGING MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATING AGAINST EMPLOYEES WITHIN THE EXCLUSIVE
UNIT FROM ENJOYING CERTAIN TERMS AND CONDITIONS OF EMPLOYMENT INCLUDING
BUT NOT LIMITED TO ADMINISTRATIVE LEAVE AND HAVING THEIR DUES WITHHELD.
A HEARING WAS HELD IN THE ABOVE-CAPTIONED MATTER ON JANUARY 24, AND
25, 1974, IN SEATTLE, WASHINGTON. THE PARTIES THROUGH THEIR COUNSEL
AND/OR REPRESENTATIVES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE BEARING ON
THE ISSUES HEREIN AND TO PRESENT ORAL ARGUMENT AND FILE BRIEFS IN
SUPPORT OF THEIR POSITIONS. A BRIEF FROM THE RESPONDENT WAS SUBMITTED
FOR CONSIDERATION OF THE UNDERSIGNED.
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR AND UPON THE RELEVANT EVIDENCE INTRODUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATION.
(1) FOR ABOUT THREE YEARS PRIOR TO THE HEARING, THE COMPLAINANT HAS
BEEN CERTIFIED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL
NON-PROFESSIONAL AND PROFESSIONAL EMPLOYEES IN A NON-SUPERVISORY
CAPACITY AT THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE IN
SEATTLE, WASHINGTON.
(2) IN SEPTEMBER 1972 THE COMPLAINANT AND THE RESPONDENT NEGOTIATED A
MEMORANDUM OF UNDERSTANDING /2/ (HEREIN CALLED MOU) TO SERVE AS THE
GROUND RULES REGARDING NEGOTIATIONS FOR A COLLECTIVE BARGAINING BETWEEN
THE PARTIES.
(3) THE MOU WAS SIGNED ON SEPTEMBER 27, 1972, BY DULCIE C. YOUNG,
CHIEF NEGOTIATOR FOR RESPONDENT AND NICHOLAS KONDUR, ALTERNATE CHIEF
NEGOTIATOR AND PRESIDENT OF AFGE LOCAL 3196 FOR THE COMPLAINANT.
IT PROVIDED, INTER ALIA, THAT: (1) EACH PARTY WOULD HAVE FOUR
MEMBERS, INCLUDING THE CHIEF NEGOTIATOR, COMPRISING ITS MEMBERSHIP
COMMITTEE; (2) THE CHIEF NEGOTIATOR OF EACH PARTY WOULD BE THE OFFICIAL
SPOKESMAN TO COMMIT HIS TEAM TO A COURSE OF ACTION; (3) UPON REACHING
AN AGREEMENT ON EACH ARTICLE, THE CHIEF NEGOTIATORS WOULD SIGNIFY THE
AGREEMENT BY INITIALING THE AGREED-UPON ITEM; HOWEVER, THIS DID NOT
PRECLUDE THE PARTIES FROM RECONSIDERING OR REVISING THE AGREED UPON
ITEMS UNTIL A FINAL AGREEMENT WAS REACHED, (4) NO PART OF THE MOU WAS
BINDING ON THE PARTIES UNTIL AGREEMENT WAS REACHED ON THE ENTIRE
MEMORANDUM AND IT HAD BEEN APPROVED BY THE PERSON DESIGNATED BY
MANAGEMENT TO SO APPROVE, AND RATIFIED BY THE MEMBERSHIP OF THE LOCAL;
(5) THE MOU PROVIDED FOR IMPASSED ITEMS TO BE SET ASIDE, SUBMITTED TO
THE FEDERAL MEDIATION, AND CONCILIATION SERVICE FOR MEDIATION AND
ULTIMATELY TO THE FEDERAL SERVICES IMPASSES PANEL IF NOT RESOLVED BY THE
MEDIATOR.
(4) NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT COMMENCED IN
EARLY JANUARY 1973. EACH SIDE WAS REPRESENTED BY FOUR MEMBERS INCLUDING
ITS CHIEF NEGOTIATOR. NICHOLAS KONDUR WAS INITIALLY THE CHIEF
NEGOTIATOR FOR COMPLAINANT, BUT WAS LATER REPLACED BY UNION
REPRESENTATIVE CARSON L. STANDIFER; DULCIE YOUN WAS THE CHIEF
NEGOTIATOR FOR THE RESPONDENT. THERE WERE A NUMBER OF FORMAL BARGAINING
SESSIONS BETWEEN JANUARY 8 AND APRIL 25, 1973, AND THE PARTIES AS OF THE
LATTER DATE HAD SIX ITEMS REMAINING UPON WHICH THEY HAD NOT REACHED AN
AGREEMENT. IT WAS CONCLUDED AT THE CLOSE OF THE APRIL 25, 1973, SESSION
THAT THE SERVICES OF A FEDERAL MEDIATOR WERE ESSENTIAL AND ARRANGEMENTS
WERE MADE TO SECURE ONE. FOUR OF THE SIX ITEMS IN CONTROVERSY WERE
PRESENTED BY COMPLAINANT AND INCLUDED: (1) HOURS OF WORK; (2)
REPRIMANDS AND ADMONISHING; (3) MERIT PROMOTION; AND (4) COMPULSORY
ARBITRATION. THE TWO ITEMS PROFERRED BY THE RESPONDENT AS BEING IN
DISPUTE WERE ADMINISTRATIVE LEAVE AND DUES WITHHOLDING. TENTATIVE
APPROVAL AS TO THE LATTER TWO ITEMS HAD BEEN WITHDRAWN AT THE APRIL 25,
1973, SESSION; THE REASON ADVANCED FOR TENTATIVE WITHDRAWAL ACTION AS
TO DUES WITHHOLDING WAS THAT A STUDY WAS BEING CONDUCTED BY THE CENTRAL
OFFICE AS TO DUES DEDUCTION COST TO THE AGENCY AND THE INFORMATION AS TO
COST LIMITATIONS OF 7-1/2 TO 12 CENTS PER WEEK, WOULD REFLECT A POSSIBLE
CHANGE IN AGENCY POLICY BEFORE CONSUMPTION OF THE CONTRACT; AS TO
ADMINISTRATIVE LEAVE, THE RESPONDENT'S CHIEF NEGOTIATOR TESTIFIED THAT A
CIVIL SERVICE COMMISSION REPRESENTATIVE HAD CALLED HER ATTENTION TO A
COMPTROLLER GENERAL'S DECISION WHICH WAS INCORPORATED INTO THE FEDERAL
PERSONNEL MANUAL THAT PRECLUDED THE TYPE OF AGREEMENT THAT THE PARTIES
HAD INITIALED. /3/
(5) THE NEGOTIATING TEAMS FOR COMPLAINANT AND RESPONDENT MET IN A
MEDIATION SESSION WITH COMMISSIONER BARRY TONER, FEDERAL MEDIATOR AND
CONCILIATION SERVICE ON MAY 7, 1973, AND AT THIS SESSION TWO ARTICLES,
HOURS OF WORK AND REPRIMANDS AND ADMONISHMENTS WERE RESOLVED. /4/ THE
SECOND SESSION ON MAY 14 WITH THE MEDIATOR WAS SPENT WITH THE
COMPLAINANT STATING ITS POSITION AND FOR THE THIRD SESSION ON MAY 21,
THE MEDIATOR HAD REQUESTED WRITTEN POSITION STATEMENTS THAT WERE TO BE
DISCUSSED; AT THIS SESSION, THE RESPONDENT CHANGED OR MADE CONCESSIONS
WITH REGARD TO THE REMAINING FOUR CONTROVERTED ARTICLES AS FOLLOWS: (A)
ON DUES WITHHOLDING, IT ADOPTED THE TWO-CENT PER MEMBER DEDUCTION AS
INITIALLY PROPOSED BY THE COMPLAINANT; /5/ (B) ON LEAVE POLICY ITS
PRIOR POSITION ON SEMINAR LEAVE WAS CHANGED FROM ZERO TO EIGHT HOURS;
(C) ON MERIT PROMOTIONS IT CHANGED ITS POSITION SO THERE WOULD BE NO
DELETION OF A NAME FROM THE REFERRED LIST WHERE THE SELECTING OFFICIAL
REQUESTED RECONSIDERATION OF A CANDIDATE AND THE PANEL ADDED THAT
CANDIDATE TO THE LIST; IT ALSO AGREED TO CHANGE ITS PROPOSAL ON
TEMPORARY PROMOTIONS FROM A PERMISSIVE BASIS ONLY AT THE DISCRETION OF
THE AGENCY AND COVERING A 60-DAY PERIOD, TO CONSIDERATION OF TEMPORARY
PROMOTIONS ON A MANDATORY BASIS; AND (D) IT PROPOSED SEVERAL
ALTERNATIVES FOR CONSIDERATION AS TO NEGOTIATED GRIEVANCE, PARTICULARLY
THE QUESTION OF ARBITRATION. THE LAST MEETING WITH THE NEGOTIATING
TEAMS WAS ON JUNE 5, 1973, AND AT THIS MEETING THE COMPLAINANT INSISTED
ON COMPULSORY ARBITRATION OF THE ENTIRE CONTRACT. THE PARTIES DID AGREE
TO THE MEDIATOR'S SUGGESTION THAT BINDING ARBITRATION ON SPECIFIED
ISSUES BE CONSIDERED AS OPPOSED TO THE CONTRACT IN ITS ENTIRETY AND THAT
THEREAFTER ONLY THE CHIEF NEGOTIATORS MEET WITH THE MEDIATOR. I FIND
THAT AS OF THE MAY 21, 1973, MEETING THE QUESTION OF DUES WITHHOLDING
WAS NO LONGER AN ITEM OF CONTROVERSY BETWEEN THE COMPLAINANT AND
RESPONDENT.
(6) BETWEEN JUNE 5 AND THE MIDDLE OF SEPTEMBER 1973, THE CHIEF
NEGOTIATORS MET WITH THE FEDERAL MEDIATOR ABOUT FIVE TIMES. THE
REMAINING ISSUES IN CONTROVERSY WERE DISCUSSED WITH RESPECT TO LEAVE
POLICY, MERIT PROMOTION AND NEGOTIATED GRIEVANCE PROCEDURE. DULCIE C.
YOUNG EXPRESSED AN OPINION THAT AN AGREEMENT WAS REACHED AND TESTIFIED
AS FOLLOWS:
"ON LEAVE POLICY WE ENDED UP WITH NO HOURS. LET ME GIVE AN
EXPLANATION ON THAT. I HAD LAST OFFERED EIGHT HOURS; THEN I OFFERED
SIXTEEN AS LONG AS THERE WAS A CONDITION IN IT THAT THIS WOULD BE ALL OF
THE SEMINAR LEAVE OFFERED.
"MR. STANDIFER THEN VOLUNTARILY ABANDONED IT BECAUSE HE OBJECTED TO
THE LIMITATION OF THIS, WOULD BE ALL, AND FELT HE WOULD BE BETTER
ADVISED TO RELY ON OUR EXISTING SOP'S WHICH ALSO PROVIDED FOR SEMINAR
LEAVE, AND PURSUE IN THE EVENT HE FELT SO INCLINED A GRIEVANCE UNDER THE
AGENCY PROCEDURE FOR ABUSE OF DISCRETION, SO THAT WAS VOLUNTARY
ABANDONED. . . .
ON MERIT PROMOTION THE UNION'S PROPOSAL TO DROP ONE NAME FROM THE
REFERRED LIST WHEN AN ADDITIONAL NAME HAD BEEN ADDED UPON THE REQUEST OF
THE SELECTING OFFICIAL WAS ADOPTED IN THE FINAL CONTRACT, AND THE SECOND
POINT IN CONTROVERSY ON THE MERIT PROMOTIONS, THE UNION'S PROPOSAL FOR
MANDATORY TEMPORARY PROMOTIONS WAS ADOPTED, AND THE PERIOD WAS THREE PAY
PERIODS.
"Q. FINALLY, THE LAST ARTICLE WHICH WAS NEGOTIATED GRIEVANCE
PROCEDURE. WHAT'S THE FINAL RESOLUTION BETWEEN PARTIES OR THAT?
"A. ADVISORY ARBITRATION WITH A ONE-YEAR REOPENING CLAUSE FOR
NEGOTIATION."
THE UNION CHIEF NEGOTIATOR TESTIFIED AS FOLLOWS WHEN CALLED AS A
WITNESSES TO THE RESPONDENT:
"Q. DID YOU NOT CALL THE MEDIATOR AT ONE POINT AND SAID THE
AGREEMENT HAD BEEN REACHED?
"A. BASED ON AN ORAL DISCUSSION WITH MS. YOUNG, BASED ON THAT
DISCUSSION, I CALLED THE FEDERAL MEDIATOR AND I SAID, AS SOON AS SHE
GIVES ONE THE WRITTEN LANGUAGE, ORALLY WE HAVE DISCUSSED IT; WE HAVE
WORKED THIS THING OUT, AND WHEN THAT WRITTEN LANGUAGE COME DOWN AND I
REVIEW IT TO MAKE SURE IT STATES THAT WE HAVE AGREEMENT, I SAID WE'RE
ALL THROUGH.'"
A LETTER DATED NOVEMBER 19, 1973, REGARDING THE GENERAL AGREEMENT
BETWEEN COMPLAINANT AND RESPONDENT WAS SENT TO THE COMPLAINANT'S CHIEF
NEGOTIATOR INVITING COMMENT AS TO EARLIER DISCUSSIONS REGARDING A
NEGOTIATED GRIEVANCE PROCEDURE ARTICLE. NO REPLY WAS RECEIVED AND ON
NOVEMBER 30, A COPY OF THE CONTRACT AS DRAFTED WAS SENT TO COMPLAINANT'S
CHIEF NEGOTIATOR. A FURTHER LETTER WAS SENT TO HIM ON NOVEMBER 20,
1973, /6/ AND ON JANUARY 8, 1974, THE RESPONDENT ADVISED THE
COMMISSIONER OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE BY LETTER
/7/ THAT SHE HAD BEEN UNABLE TO GET A RESPONSE FROM COMPLAINANT
REGARDING THEIR AGREEMENT.
AT THE BEGINNING OF THE SECOND DAY OF HEARING ON FEBRUARY 5, 1974,
THE COMPLAINANT REQUESTED AND WAS GRANTED TIME TO DISCUSS WITH
RESPONDENT'S COUNSEL A PROPOSED ARTICLE IN THE CONTRACT ON LEAVE POLICY
CONCERNING ADMINISTRATIVE LEAVE IN HOPE OF REACHING A SETTLEMENT IN THE
MATTER. THE FOLLOWING ENSUED:
JUDGE BURROW: "I TAKE IT THAT'S THE ONLY PROPOSITION WE HAVE LEFT?
ON EVERY OTHER POINT THERE IS SUBSTANTIAL AGREEMENT.
MR. STANDIFER: YES, SIR. . . ."
AFTER GRANTING TIME TO CONSIDER THE PROPOSAL AND A COUNTER-PROPOSAL
THE FOLLOWING TRANSPIRED:
JUDGE BURROW: "DO YOU WANT TO COMMENT ON THE COUNTER-PROPOSAL, MR.
STANDIFER?
MR. STANDIFER: "ONLY IN RESPECT THAT WE ARE IN AGREEMENT WITH THE
MANAGEMENT'S COUNTER-PROPOSAL AS STATED INTO THE RECORD. . . ."
JUDGE BURROW: "THE COMPLAINANT WAS GIVEN OPPORTUNITY TO CAUCUS, DO
YOU HAVE A REPORT AS TO THE STATUS OF YOUR-- -
MR. STANDIFER: "YES, WE CAUCUSED ON THE MANAGEMENT'S PROPOSAL ON
ADVISORY ARBITRATION, AND WE FOUND IN THAT PROPOSAL A PARAGRAPH THAT WE
HAD NEVER AGREED TO AND COULDN'T POSSIBLY LIVE WITH AND THERE IS NO WAY
WE CAN ACCEPT THAT PORTION OF THE ADVISORY ARBITRATION ARTICLE.
MR. NORMAN: "WELL, I'M AFRAID AT THIS POINT IN TIME-- THE-- AFTER
MAKING A GOOD FAITH EFFORT TO RESOLVE THIS AS TO WHAT WE THOUGHT WAS IN
DISPUTE, THE ARTICLE DEALING WITH SEMINAR TIME THAT WE WILL WITHDRAW OUR
OFFER OF SETTLEMENT AND CONTINUE WITH THE HEARING."
I FIND THAT THE ITEM RELATING TO LEAVE POLICY AS TENTATIVELY AGREED
TO BY THE RESPONDENT WITH THE COMPLAINANT WAS WITHDRAWN BECAUSE IT WAS
SUBSEQUENTLY FOUND TO BE IN VIOLATION OF EXISTING LAW AND REGULATIONS
AND WAS NOT CONDITIONED ON A DEMAND BY COMPLAINANT TO MODIFY ITS
POSITION WITH RESPECT TO CERTAIN IMPASSED ITEMS. FURTHER, I FIND THAT
AFTER TENTATIVE WITHDRAWAL OF THE ITEMS OF DUES WITHHOLDING AND
ADMINISTRATIVE OR SEMINAR LEAVE THE PARTIES REACHED AN AGREEMENT ON BOTH
OF THESE ARTICLES.
SECTION 11(A) OF THE ORDER PROVIDES THAT: "AN AGENCY AND 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 ON AGREEMENT, OR ANY QUESTION
ARISING THEREUNDER; DETERMINE APPROPRIATE TECHNIQUES, CONSISTENT WITH
SECTION 17 OF THE ORDER, TO ASSIST IN SUCH NEGOTIATION AND EXECUTE A
WRITTEN AGREEMENT OR MEMORANDUM OF UNDERSTANDING."
SECTION 12 OF THE ORDER PROVIDES IN PART THAT EACH AGREEMENT BETWEEN
AN AGENCY AND A LABOR ORGANIZATION IS SUBJECT TO THE FOLLOWING
REQUIREMENTS: "(A) IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE
AGREEMENT, OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE
LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES
SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES
AND REGULATIONS IN EXISTENCE AT THE TIME AND AGREEMENT WAS APPROVED;
AND BY SUBSEQUENTLY PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED
BY LAW OR BY THE REGULATIONS OF APPROPRIATE AUTHORITIES, OR AUTHORIZED
BY THE TERMS OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL."
IT IS CONTEMPLATED UNDER SECTION 11 OF THE ORDER, THAT AN AGENCY AND
A RECOGNIZED UNION SHALL MEET AND CONFER WITH THE AIM OF NEGOTIATING A
COLLECTIVE BARGAINING AGREEMENT. WHILE THERE ARE LIMITATIONS PLACED ON
MATTERS WHICH MAY BE PROPERLY NEGOTIATED, PERMISSIBLE SUBJECTS MAY FORM
THE CONTENT OF A CONTRACT WHEN AGREED UPON BETWEEN THE PARTIES. THE
OBLIGATION TO MEET AND CONFER CARRIES WITH IT THE DUTY TO REDUCE TO
WRITING, AND SIGN, THE TERMS AND CONDITIONS OF EMPLOYMENT ASSENTED TO
AND FINALIZED, DURING SUCH NEGOTIATIONS. WHILE THERE IS NO REQUIREMENT
TO AGREE ON PROPOSALS OR CONCESSIONS, A PARTY MAY NOT PROPERLY REFUSE TO
SIGN AN AGREEMENT ONCE IT IS REACHED. SUCH REFUSAL IS VIOLATIVE OF
SECTION 19(A)(6) OF THE ORDER. HEADQUARTERS U.S. ARMY AVIATION SYSTEMS
COMMAND, A/SLMR NO. 168. SUCH REFUSAL ON THE PART OF THE UNION WOULD
LIKEWISE BE A VIOLATION OF THE ORDER SINCE UNDER SECTION 19(B)(6) IT HAS
A CORRESPONDING DUTY TO CONSULT, CONFER AND NEGOTIATE WITH AN AGENCY AS
REQUIRED BY THE ORDER.
IN THE CASE AT BAR, THE RECORD SHOWS THAT AS OF APRIL 25, 1973, THE
COMPLAINANT'S AND RESPONDENT'S CHIEF NEGOTIATORS HAD PREVIOUSLY
INITIALED ALL EXCEPT FOUR OF THE PROPOSED ARTICLES OF THE MOU LEADING TO
A COLLECTIVE BARGAINING AGREEMENT. OF THE AGREED UPON ITEMS, THE UNION
WITH THE PERMISSION OF RESPONDENT HAD BEEN PERMITTED TO CHANGE ITS
POSITION ON TWO ARTICLES THAT WERE NO LONGER IN DISPUTE, /8/ BUT WHEN
THE RESPONDENT ASSERTED THE SAME RIGHT ON APRIL 25, 1973, IT WAS CHARGED
WITH AN UNFAIR LABOR PRACTICE. DESPITE THE TENTATIVE WITHDRAWAL OF THE
ITEMS OF DUES WITHHOLDING AND ADMINISTRATIVE LEAVE THE RESPONDENT
MAINTAINS THAT IT CONTINUED TO NEGOTIATE IN GOOD FAITH UNTIL AN
AGREEMENT ON THOSE WAS REACHED; IT REDUCED THE CONTRACT TO WRITING, BUT
THE COMPLAINANT REFUSED THEREAFTER TO CONSIDER OR COMMENT ON IT OR TO
RETURN IT TO THE RESPONDENT.
AN ISSUE THUS PRESENTED FOR DETERMINATION IS WHEN AND UNDER WHAT
CIRCUMSTANCES, IF ANY, A CHIEF NEGOTIATOR MAY IN GOOD FAITH WITHDRAW
FROM CONSIDERATION, A PREVIOUSLY AGREED UPON ITEM IN THE MOU.
THE RESPONDENT ARGUES THAT THE MOU PROVIDING THAT:
WHEN A POINT OR SUBPOINT OF AN AGREEMENT HAS BEEN REACHED AND
INITIALED BY THE CHIEF NEGOTIATORS SIGNIFYING THEIR APPROVAL, THIS WILL
PRECLUDE THEM FROM RECONSIDERING OR REVISING THE AGREED UPON ITEMS UNTIL
FINAL AGREEMENT IS REACHED.
PERMITS THE UNILATERAL WITHDRAWAL OF A CONTRACT PROPOSAL ITEM AT ANY
TIME PRIOR TO FINAL AGREEMENT.
I FIND AND CONCLUDE FROM THE RECORD THAT YOUNG ON BEHALF OF THE
MANAGEMENT TEAM AND STANDIFER FOR THE UNION'S TEAM VESTED AND CLOAKED
WITH THE AUTHORITY TO NEGOTIATE AND AGREE UPON THE TERMS OF A CONTRACT
BETWEEN THE PARTIES. I DO NOT ACCEPT THE CONTENTION THAT UNDER THE
TERMS OF THEIR MOU ONE PARTY COULD UNILATERALLY WITHDRAW FROM
CONSIDERATION ITEMS IN TOTO PREVIOUSLY AGREED UPON BETWEEN THE PARTIES.
ALLOWING WITHDRAWAL AT WILL OF PREVIOUSLY AGREED UPON ITEMS BY EITHER
PARTY COULD MAKE A MOCKERY AND TRAVESTY OF THE BARGAINING PROCESS.
IT IS INHERENT THAT BARGAINING PROCEDURES BE FLEXIBLE TO PERMIT
RECONCILIATION OF DIFFERENCES BETWEEN THE NEGOTIATING PARTIES.
MEMORANDA OF UNDERSTANDING SHOULD BE INTERPRETED IN THEIR BROAD AND
OVERALL RATHER THAN NARROW CONCEPT TO ALLOW THAT FLEXIBILITY NECESSARY
TO CARRY OUT THE INTENT OF THE PARTIES IN REACHING AN UNDERSTANDING ON
AN AGREEMENT. WHILE THE MOU DID NOT PRECLUDE RECONSIDERATION OR
REVISION OF AGREED UPON ITEMS UNTIL FINAL AGREEMENT WAS REACHED, SUCH
WAS DESIGNED TO PERMIT CHANGE OR REFINEMENT IN LANGUAGE TO RECONCILE IT
WITH OTHER ARTICLES THAT MIGHT BE IN CONFLICT RATHER THAN AFFORDING ONE
PARTY THE PRIVILEGE OF WITHDRAWING THE SUBSTANCE OF A PREVIOUSLY AGREED
UPON ITEM. I CONCLUDE THAT THE MOU PER SE DID NOT ALLOW THE RESPONDENT
TO WITHDRAW ITS APPROVAL OF THE TWO PREVIOUSLY AGREED UPON ITEMS DUES
WITHHOLDING AND ADMINISTRATIVE LEAVE FROM CONSIDERATION IN REACHING A
COLLECTIVE BARGAINING AGREEMENT.
IN THE NEGOTIATION OF AGREEMENTS, SECTION 11 OF THE ORDER REQUIRES
THAT THE PARTIES MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH.
SECTION 12 OF THE ORDER SPECIFIES THAT IN MATTERS COVERED BY THE
AGREEMENT, OFFICIALS AND EMPLOYEES ARE GOVERNED BY EXISTING OR FUTURE
LAWS AND THE REGULATIONS OF APPROPRIATE AUTHORITIES, INCLUDING POLICIES
SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED AGENCY POLICIES
AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED;
AND BY SUBSEQUENT PUBLISHED AGENCY POLICIES AND REGULATIONS REQUIRED BY
LAW OR BY REGULATIONS OF APPROPRIATE AUTHORITIES, OR AUTHORIZED BY THE
TERMS OF A CONTROLLING AGREEMENT AT A HIGHER AGENCY LEVEL. APPLYING
SECTION 12 PROVISIONS OF THE ORDER TO THE FACTS IN THE CASE AT BAR, IT
IS EVIDENT THAT THE MOU AS IT IS RELATED TO APPROVAL OF 40 HOURS
ADMINISTRATIVE LEAVE FOR ONE INDIVIDUAL AND DELEGATING TO THE UNION THE
AUTHORITY TO DISPENSE SUCH LEAVE WAS CONTRA TO THE FEDERAL PERSONNEL
MANUAL PROVISION REQUIRING THAT: ". . . AGENCIES DETERMINE
ADMINISTRATIVELY THE SITUATIONS IN WHICH THEY WILL EXCUSE EMPLOYEES FROM
DUTY WITHOUT CHARGE TO LEAVE" /9/ AND SUBCHAPTER S-1(B)(2) STATING THAT:
"THE COMPTROLLER GENERAL ISSUES DECISIONS ON QUESTIONS CONCERNING LEAVE
AND THESE DECISIONS ARE BINDING ON ALL AGENCIES." SINCE THE SUPPLEMENT
SPECIFIES A COMPTROLLER GENERAL'S OPINION WHICH PROHIBITS MORE THAN
EIGHT HOURS OF ADMINISTRATIVE LEAVE PER EMPLOYEE REPRESENTATIVE TO
ATTEND UNION SPONSORED SEMINAR, THE LEAVE POLICY ARTICLE AGREED UPON BY
THE RESPONDENT VIOLATED THE COMPTROLLER GENERAL'S OPINION AND THE
SECTION 12 PROVISIONS OF THE ORDER. I CONCLUDE THAT WHERE AN AGREEMENT
HAS BEEN REACHED IN A MOU ARTICLE THAT IS IN VIOLATION OF THE ORDER,
EXISTING LAWS, PERSONNEL POLICIES SET FORTH IN THE FEDERAL PERSONNEL
MANUAL SUCH ARTICLE IS A PROPER MATTER FOR WITHDRAWAL BY AN AGENCY AND
REFERRAL FOR FURTHER CONSIDERATION BY THE CHIEF NEGOTIATORS; THIS IS
OBVIOUSLY SO WHERE AS HERE, THE SUBSTANCE OF THE ARTICLE ITSELF REVEALS
IT IS CONTRA TO LAW, REGULATIONS, THE CONTROLLING AGREEMENT OR THIS
ORDER AND NOT NEGOTIABLE THUS OBVIATING THE NECESSITY FOR A HIGHER
AGENCY LEVEL REVIEW OR AN APPEAL TO THE COUNSEL UNDER THE PROVISIONS OF
SECTION 11(C) OF THE ORDER.
AS TO WITHDRAWAL OF THE ITEM IN THE MOU MEETING TO DUES WITHHOLDING
AT THE APRIL 25, 1973 SESSION, I CONCLUDE THAT THE RESPONDENT'S ACTION
WAS MADE IN GOOD FAITH BUT WAS AT LEAST PREMATURE; IN THIS SITUATION
THERE WERE NO WRITTEN AGENCY REGULATIONS OR PUBLISHED POLICIES TO
ESTABLISH THAT THE DUES WITHHOLDING AGREED UPON IN THE MOU WAS IN
VIOLATION OF THE ORDER, EXISTING LAWS, OR PERSONNEL POLICIES SET FORTH
IN THE FEDERAL PERSONNEL MANUAL; WHILE THERE WAS TESTIMONY THAT A COST
STUDY AS TO DUES WITHHOLDING WAS BEING MADE THE RESULTS OF SUCH STUDY
HAD NOT CRYSTALIZED IN MORE THAN AN ESTIMATE VARYING FROM 7 1/2 TO 12
CENTS.
NOT EVERY BREACH OF AGREEMENT OR PREMATURE ACTION BY A PARTY TO AN
AGREEMENT OR MEMORANDA CONSTITUTES A VIOLATION OF THE ORDER. IN
ASCERTAINING WHETHER THERE IS A VIOLATION OF THE ORDER, THE OVERALL
CONDUCT OF THE PARTIES WILL BE EXAMINED IN THE LIGHT OF THE ALLEGED
CIRCUMSTANCES AS THEY RELATE TO THE TOTAL PICTURE OR STRUCTURE OF EVENTS
RATHER THAN TO AN ISOLATED HAPPENING. WHEN EXAMINED IN THIS LIGHT IT IS
CONCLUDED: (A) THE RESPONDENT ACTED IN GOOD FAITH PRIOR TO APRIL 25,
1973 AND THIS IS UNDISPUTED; (B) BASED ON ITS INTERPRETATION OF THE MOU
BETWEEN THE PARTIES THE RESPONDENT RAISED THE ISSUE OF DUES WITHHOLDING
IN GOOD FAITH AND SOUGHT TO WITHDRAW THIS ITEM WHICH HAD PREVIOUSLY BEEN
AGREED UPON BETWEEN THE PARTIES FROM THE LIST OF AGREED ARTICLES; (C)
AT THE FIRST MEETING WITH THE FEDERAL MEDIATOR ON MAY 7, 1973, THE
RESPONDENT MANIFESTED GOOD FAITH EFFORTS TO RESOLVE THE SIX FORMERLY
UNRESOLVED ARTICLES BY ACCEDING TO THE UNION'S POSITION AS TO HOURS OF
WORK AND REPRIMANDS; (D) ON SUBSEQUENT OCCASIONS RESPONDENT'S ADVANCED
VARIOUS ALTERNATIVES TO ISSUES IN CONTROVERSY DEMONSTRATING FLEXIBILITY
IN ATTITUDE AND A WILLINGNESS TO COMPROMISE STEADFAST POSITIONS ASSUMED
BY IT AND THE UNION; (E) SPECIFICALLY, THE RESPONDENT REACHED AN
AGREEMENT WITH THE UNION REGARDING THE ITEM OF DUES WITHHOLDING BY
AGREEING THAT THE PER MEMBER DEDUCTION WOULD BE RESTORED TO TWO CENTS
FOR THE DURATION OF THE CONTRACT AS COMPREHENDED IN THE ORIGINAL
AGREEMENT BEFORE THE WITHDRAWAL ACTION ON APRIL 25, 1973; /10/
THE WITHDRAWAL OF THE PREVIOUSLY AGREED UPON AND AFOREMENTIONED
SPECIFIC ARTICLES OF AGREEMENT BY THE AGENCY ON APRIL 25, 1973 WERE NOT
PREDICATED ON DEMANDS MADE BY THE COMPLAINANT AT THE NEGOTIATING TABLE
WITH RESPECT TO CERTAIN ITEMS IT HAD IMPASSED AS ALLEGED IN THE
COMPLAINT; (G) THE RESPONDENT REDUCED THE COLLECTIVE BARGAINING
AGREEMENT TO WRITING AND SENT IT TO THE COMPLAINANT'S CHIEF NEGOTIATOR
FOR COMENT, RESPONSE AND/OR SIGNATURE BEFORE REFERRING IT TO A HIGHER
AGENCY LEVEL OF APPROVAL; (H) THE RESPONDENT'S CONTINUED EFFORTS TO
CONSULT, CONFER AND NEGOTIATE REGARDING THE COLLECTIVE BARGAINING
AGREEMENT WERE THWARTED BY THE COMPLAINANT'S CHIEF NEGOTIATOR WHEN HE
BROKE OFF RELATIONSHIP WITH RESPONDENT AND FAILED TO RESPOND TO PHONE
CALLS AND LETTERS SENT TO HIM REGARDING THE COLLECTIVE BARGAINING
AGREEMENT THEY WERE ATTEMPTING TO NEGOTIATE; (I) THE RESPONDENT IS
FOUND TO HAVE ACTED IN GOOD FAITH THROUGHOUT THE BARGAINING SESSIONS AND
DID ALL THAT COULD BE REASONABLY EXPECTED OF IT TO EXPEDITE A FINAL
AGREEMENT.
IN VIEW OF THE FOREGOING, I 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. /11/
I FURTHER CONCLUDE THAT THE EVIDENCE PRESENTED DOES NOT SUSTAIN THE
ALLEGED VIOLATION OF 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." THROUGHOUT THE NEGOTIATIONS THE
RESPONDENT IS SHOWN TO HAVE BARGAINED IN GOOD FAITH AND THERE ARE NO
ACTIONS SHOWN TO HAVE BEEN COMMITTED BY IT WHICH HAD THE EFFECT OF
ENCOURAGING OR DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION, OR OTHER
CONDITIONS OR EMPLOYMENT. THE CONTROVERSIAL ITEMS OF PER MEMBER DUES
DEDUCTION COSTS AND ADMINISTRATIVE LEAVE FOR UNION SPONSORED SEMINARS
DID NOT INTERFERE WITH CONTINUING UNINTERRUPTED COLLECTIVE BARGAINING
SESSIONS OR OTHERWISE RESULT IN DISCRIMINATION RELATED 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 ABOVE FINDINGS, CONCLUSIONS, AND THE ENTIRE
RECORD, I RECOMMEND THAT THE ASSISTANT SECRETARY DISMISS THE COMPLAINT
HEREIN AGAINST THE RESPONDENT IN ITS ENTIRETY.
DATED: MAY 6, 1974
WASHINGTON, D.C.
/1/ THE COMPLAINANT HAD ALSO ALLEGED A VIOLATION OF SECTION 19(A)(5)
OF THE ORDER BUT THIS WAS WITHDRAWN PRIOR TO THE HEARING AND IS NOT
CONSIDERED IN THIS PROCEEDING. SEE WITHDRAWAL REQUEST AND APPROVAL,
COMPLAINANT'S EXHIBIT NO. 1.
/2/ COMPLAINANT'S EXHIBIT NO. 2.
/3/ SEE RESPONDENT'S EXHIBIT NO. 4.
/4/ THE SUBSTANCE OF THE TWO ITEMS THAT WERE RESOLVED AT THIS SESSION
ARE IN RESPONDENT'S EXHIBIT NO. 8, ARTICLE XII, SECTIONS (A) PAGE 9 AND
ARTICLE XXVI, PAGE 18; ALSO COMPLAINANT'S WITNESS ROBERT F. ARMOUR
TESTIFIED THAT THESE TWO ISSUES WERE RESOLVED. TRANSCRIPT PAGE 85.
/5/ THE REPORTED CENTRAL OFFICE COST STUDY HAD BEEN STATED TO REFLECT
AN OUTSIDE COST OF 12 CENTS PER MEMBER AND LATER 7-1/2 CENTS. HOWEVER,
AT THE TIME ADDITIONAL STUDIES WERE REPORTED AS BEING IN PROGRESS AND
RESPONDENT WITHDREW ITS POSITION CONTESTING THE DUES DEDUCTION COSTS
THAT IT HAD INITIATED PURSUANT TO THE MOU.
/6/ THE THREE LETTERS HEREIN ARE IN RESPONDENT'S EXHIBIT NO. 6.
/7/ RESPONDENT'S EXHIBIT NO. 7.
/8/ THE RESPONDENT'S POSITION WAS THAT IT DID NOT QUESTION THE
UNION'S RIGHT TO DO SO IN VIEW OF THE MOU PROVISION THAT BY INITIALING
THE AGREED UPON ITEM, THIS DID NOT PRECLUDE THE PARTIES FROM
RECONSIDERING OR REVISING THE AGREED UPON ITEMS UNTIL A FINAL AGREEMENT
WAS REACHED. IT MAINTAINED IT HAD THE SAME RIGHT AS IT HAD CONCEDED TO
THE UNION.
/9/ FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, BOOK 630, SUB-CHAPTER
S-11-5(A); RESPONDENT'S EXHIBIT NO. 4.
/10/ ALSO, SEE TRANSCRIPT P.P. 109, 110 WHEREIN THE PRESIDENT OF
LOCAL 3196 TESTIFIED THAT HE RECALLED THE UNION CHIEF NEGOTIATOR
INFORMING HIM THAT ALL UNRESOLVED ISSUES HAD BEEN SETTLED EXCEPT AS TO
ARBITRATION AND IN THIS REGARD THE AGENCY WANTED A PERIOD OF ADVISORY
ARBITRATION RATHER THAN COMPULSORY.
/11/ SECTION 1(A) OF THE ORDER PROVIDES IN PART THAT: "EACH EMPLOYEE
OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS THE RIGHT FREELY
AND WITHOUT FEAR OR PENALTY OF 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 OF THIS RIGHT. . . ."
4 A/SLMR 422; P. 527; CASE NO. 72-4306; AUGUST 26, 1974.
UNITED STATES NAVY,
NAVAL AIR STATION (NORTH ISLAND),
SAN DIEGO, CALIFORNIA
A/SLMR NO. 422
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY
ANTONIO G. SERRANO, AN INDIVIDUAL (COMPLAINANT), 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) OF THE EXECUTIVE ORDER BY ITS REFUSAL TO
ACCEPT A GRIEVANCE AT STEP ONE OF THE AGENCY'S GRIEVANCE PROCEDURE BY
REQUIRING THAT THE COMPLAINANT SUBMIT HIS GRIEVANCE IN WRITING. 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 FOUND THAT THE COMPLAINANT HAD SUBMITTED
AN ORAL GRIEVANCE TO HIS IMMEDIATE SUPERVISOR PURSUANT TO THE FIRST STEP
OF THE RESPONDENT'S GRIEVANCE PROCEDURE AND THAT THIS ORAL GRIEVANCE WAS
NOT ACCEPTED BY HIS IMMEDIATE SUPERVISOR OR THE STORAGE BRANCH MANAGER
ON THE BASIS THAT THE GRIEVANCE, AS WELL AS OTHER MATTERS THE
COMPLAINANT SOUGHT TO DISCUSS, SHOULD BE SUBMITTED IN WRITING. THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT EVEN IF THE RESPONDENT HAD,
WITHOUT JUSTIFICATION, INSISTED THAT THE COMPLAINANT STATE HIS GRIEVANCE
IN WRITING, SUCH A VIOLATION OF ITS UNILATERALLY ESTABLISHED GRIEVANCE
PROCEDURE, IN THE ABSENCE OF DISCRIMINATORY MOTIVATION, OR DISPARITY OF
TREATMENT BASED ON UNION MEMBERSHIP CONSIDERATIONS, WOULD NOT VIOLATE
SECTION 19(A)(1) OR (2) OF THE ORDER. IN THIS LATTER REGARD, IT WAS
FOUND THAT THERE WAS NO EVIDENCE THAT THE COMPLAINANT WAS DISCRIMINATED
AGAINST IN REGARD TO HIRING, TENURE, PROMOTION OR OTHER CONDITIONS OF
EMPLOYMENT, OR THAT THE RESPONDENT INTERFERED WITH, RESTRAINED, OR
COERCED THE COMPLAINANT IN THE EXERCISE OF HIS RIGHTS IN VIOLATION OF
SECTION 19(A)(1) OR (2) OF THE EXECUTIVE ORDER. THE ADMINISTRATIVE LAW
JUDGE ALSO CONCLUDED THAT SECTION 7(D)(1) OF THE ORDER DOES NOT CONFER
ANY RIGHTS ENFORCEABLE UNDER SECTION 19. ACCORDINGLY, THE
ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, 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 NAVY,
NAVAL AIR STATION (NORTH ISLAND),
SAN DIEGO, CALIFORNIA
AND
ANTONIO G. SERRANO, AN INDIVIDUAL
ON JUNE 14, 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 NOTHING
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. 72-4306 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 26, 1974
IN THE MATTER OF:
UNITED STATES NAVY
NAVAL AIR STATION (NORTH ISLAND)
SAN DIEGO, CALIFORNIA
AND
ANTONIO G. SERRANO, AN INDIVIDUAL
BASIL L. MAYES, ESQUIRE
LABOR RELATIONS ADVISOR
REGIONAL OFFICE OF CIVILIAN MANPOWER
MANAGEMENT
SUITE 1313
110 WEST "C" STREET
SAN DIEGO, CALIFORNIA 92101
LEO MOLINA, ESQUIRE
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 AND WAS INITIATED BY A
COMPLAINT DATED JUNE 12, 1973, AND FILED JUNE 14, 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 GRIEVANCE AT STEP ONE OF
THE AGENCY'S UNILATERAL GRIEVANCE PROCEDURE BY REQUIRING THAT
COMPLAINANT SUBMIT HIS GRIEVANCE IN WRITING. AT THE HEARING, THE
COMPLAINT WAS AMENDED, WITHOUT OBJECTION BY RESPONDENT, 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, 1973.
COMPLAINANT'S REQUEST FOR EXTENSION OF TIME FOR FILING BRIEFS, CONSENTED
TO BY RESPONDENT, WAS GRANTED FOR GOOD CAUSE. THE PARTIES' TIMELY
BRIEFS WERE RECEIVED ON OR ABOUT 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 IS A CIVILIAN EMPLOYEE OF THE SCREENING SECTION
OF THE SUPPLY DEPARTMENT. COMPLAINANT IS NOT IN A BARGAINING UNIT;
HOWEVER HE IS A MEMBER OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (HEREINAFTER ALSO REFERRED TO AS "AFGE"), WHICH REPRESENTS WAGE
BOARD (BLUE COLLAR) EMPLOYEES IN THE SAME SECTION OF THE SUPPLY
DEPARTMENT, AND HAD ASSISTED THE NATIONAL REPRESENTATIVE OF AFGE, MR.
MOLINA, IN THE HANDLING OF BARGAINING UNIT GRIEVANCES FOR SOME THREE TO
FOUR MONTHS PRIOR TO THE HEARING.
2. COMPLAINANT TESTIFIED THAT ON MARCH 26, 1973, HE TOLD HIS
IMMEDIATE SUPERVISOR, MR. ANTHONY MARUSCH, THAT HE WAS GRIEVING ABOUT
THE FACT THAT HE AND ANOTHER EQUIPMENT SPECIALIST HAD TO TAKE ANNUAL
LEAVE WHILE THERE WERE WAREHOUSEMEN ASSIGNED ON A TRAINING PROGRAM DOING
EQUIPMENT SPECIALIST WORK. COMPLAINANT WAS VERY CANDID ABOUT RAISING
OTHER NON-GRIEVANCE MATTERS. HE STATED, FOR EXAMPLE,
". . . I INDICATED THAT I KNEW HE COULD NOT DO NOTHING ABOUT IT OR
THESE OTHER MATTERS THAT I BROUGHT UP-- THE SAFETY AND IN REGARD TO
SAFETY GLASSES AND SIGNS BEING POSTED." (TR. 14; SEE, ALSO TR. 20-21)
COMPLAINANT WANTED TO TALK TO MR. DONALD BRACKMAN, STORAGE BRANCH
MANAGER, AND HE TESTIFIED THAT MR. MARUSCH TOLD HIM IN THE COURSE OF
THEIR MEETING ON MARCH 26, THAT HE WOULD TRY AND SET UP A MEETING WITH
MR. BRACKMAN; THAT ON THE MORNING OF MARCH 28, MR. MARUSCH TOLD HIM
MR. BRACKMAN "WANTED MY GRIEVANCE IN WRITING" (TR. 15); THAT HE,
COMPLAINANT, PROTESTED PUTTING HIS GRIEVANCE IN WRITING AND SHOWED MR.
MARUSCH NASNI INSTRUCTION 12770.1B WHICH PROVIDED, IN THE FIRST STEP OF
THE GRIEVANCE PROCEDURE THAT, "AN EMPLOYEE SHALL INITIATE THE INFORMAL
PROCEDURE BY PRESENTING HIS GRIEVANCE ORALLY TO HIS SUPERVISOR." (ASS'T.
SEC. EXH. 1(A)). AGAIN, COMPLAINANT STATED THAT HE TOLD MR. MARUSCH,
"YOU CAN TELL HIM (MR. BRACKMANN) THAT THERE'S OTHER PROBLEMS THAT I
WANT TO TALK TO HIM ABOUT, TOO, IN REGARDS TO SAFETY." (TR. 15).
COMPLAINANT FURTHER TESTIFIED THAT ON THE AFTERNOON OF MARCH 28, MR.
MARUSCH TOLD HIM THAT "MR. BRACKMAN STILL WANTS IT IN WRITING." (TR.
15). COMPLAINANT TOOK NO FURTHER ACTION UNDER THE GRIEVANCE PROCEDURE
BUT FILED AN UNFAIR LABOR PRACTICE CHARGE.
3. COMPLAINANT'S REPRESENTATIVE, MR. MOLINA, IN A LETTER DATED JUNE
1, 1973, ADDRESSED TO MR. JOHN SHEA, U.S. DEPARTMENT OF LABOR-LMSA MADE
THE FOLLOWING REQUEST:
"IT IS FURTHER REQUESTED THAT MR. SERRANO'S COMPLAINT BE REFERRED
BACK TO THE SECOND LEVEL OF THE GRIEVANCE PROCEDURE AND THAT THE
SUPERVISOR BE INSTRUCTED TO ACCEPT THE GRIEVANCE ON AN INFORMAL BASIS
AND TO ACT PROMPTLY AND FAIRLY ON IT." (ASS'T. SEC. EXH. 1(A), EXHIBIT
E).
COMPLAINANT, BY LETTER DATED JULY 12, 1973, ADDRESSED TO MR. SHEA,
CONCLUDED WITH THIS STATEMENT,
". . . THEREFORE, I NOW REQUEST THAT MY COMPLAINT NOT BE REMANDED
BACK TO THE AGENCY, BUT ADJUDICATED BY THE DEPARTMENT OF LABOR, SINCE
MANAGEMENT (CAPTAIN MCKENZIE) HAS CHOSEN TO REFUSE MY ALLEGATIONS BASED
ON FALSE AND IRRESPONSIBLE STATEMENTS MADE BY HIS AGENTS." (ASS'T. SEC.
EXH. 1(A), EXHIBIT F; COMPLAINANT'S EXH. 1).
ALTHOUGH COMPLAINANT FIRST DENIED THAT HE STATED HE WAS NO LONGER
INTERESTED IN PURSUING HIS GRIEVANCE, AS REQUESTED BY MR. MOLINA, WHEN
CONFRONTED WITH THE CORRESPONDENCE ADMITTED THAT HE HAD BECAUSE HE
DIDN'T BELIEVE THE GRIEVANCE WOULD BE HANDLED PROPERLY (TR. 29).
4. MR. MARUSCH TESTIFIED THAT ON MARCH 26, 1973, COMPLAINANT ASKED
TO TALK TO HIM AND THAT COMPLAINANT SAID HE WAS CONCERNED ABOUT SAFETY
PROCEDURES, SIGNS, TRAINING PROGRAMS AND INCIDENTALS AND SAID "I WOULD
LIKE TO PERSONALLY TALK WITH MR. BRACKMANN." MR. MARUSCH DENIED THAT
COMPLAINANT USED THE WORD GRIEVANCE AND/OR THAT COMPLAINANT WAS
PROCEEDING UNDER THE NORTH ISLAND GRIEVANCE PROCEDURE. MR. MARUSCH
TALKED TO MR. BRACKMANN AND TOLD HIM THAT COMPLAINANT WANTED TO TALK TO
HIM ABOUT THE SAFETY AND TRAINING PROGRAM; THAT MR. BRACKMANN SAID
"REAL FINE" BUT HE WOULD LIKE MR. SERRANO (COMPLAINANT) TO PUT DOWN WHAT
HE WANTS TO DISCUSS IN WRITING SO HE (BRACKMANN) CAN BE PREPARED AND
DISCUSS THE MATTER WITH HIM; THAT WHEN HE TOLD COMPLAINANT THAT MR.
BRACKMANN WOULD LIKE TO HAVE THE MATTERS WRITTEN DOWN SO HE COULD
PREPARE AND DISCUSS THEM WITH HIM, COMPLAINANT GOT UPSET AND USED A
LITTLE OBSENCE LANGUAGE. MR. MARUSCH ADMITTED THAT COMPLAINANT QUOTED A
DIRECTIVE OF SOME SORT. MR. MARUSCH DENIED THAT HE HAD A SECOND
CONVERSATION WITH COMPLAINANT ON MARCH 28.
5. MR. GLEN SILVERS, ALSO AN EQUIPMENT SPECIALIST, WAS CALLED AS A
WITNESS BY COMPLAINANT. MR. SILVERS FIRST TESTIFIED THAT MR. MARUSCH
USED THE WORD "GRIEVANCE" BUT IMMEDIATELY RETRACTED AND SAID THAT MR.
MARUSCH ASKED COMPLAINANT WHAT HE WANTED TO DISCUSS WITH MR. BRACKMANN
AND THEN SAID; "WELL, PUT IT IN WRITING" (TR. 33).
6. MR. BRACKMANN TESTIFIED THAT WHEN MR. MARUSCH TALKED TO HIM ON
MARCH 26, HE ASKED WHAT COMPLAINANT WANTED TO TALK ABOUT; THAT MR.
MARUSCH SAID COMPLAINANT WANTED TO TALK ABOUT A NUMBER OF THINGS
INCLUDING SAFETY, SOME DETAIL PROCEDURES AND OTHER ITEMS; THAT HE TOLD
MR. MARUSCH TO ASK COMPLAINANT TO SCRIBBLE DOWN THE ITEMS HE WANTED TO
DISCUSS SO THAT HE (BRACKMANN) COULD GET THE NECESSARY DOCUMENTS, OR
PREPARATION, SO THAT HE COULD DISCUSS THE MATTERS WITH THE COMPLAINANT.
MR. BRACKMANN STATED THAT MR. MARUSCH DID NOT USE THE WORD "GRIEVANCE"
AND HE STATED THAT HE HAD NEVER NEGLECTED OR REFUSED TO DISCUSS A
GRIEVANCE WITH COMPLAINANT. ON CROSS-EXAMINATION, MR. BRACKMANN STATED
THAT UNDER THE NORTH ISLAND GRIEVANCES PROCEDURE IF THE IMMEDIATE
SUPERVISOR IS UNABLE TO RESOLVE THE PROBLEM THAT THE EMPLOYEE BRINGS, HE
IS TO REFER IT TO WHOMEVER DOES HAVE THE AUTHORITY TO RESOLVE THE
PROBLEM, AND ADMITTED THAT THAT WAS WHAT MR. MARUSCH WAS DOING WHEN HE
CALLED TO TALK ABOUT COMPLAINANT'S PROBLEMS. NEVERTHELESS, MR.
BRACKMANN TESTIFIED THAT HE DID NOT INSIST ON HAVING COMPLAINANT'S
GRIEVANCE IN WRITING; THAT HE SIMPLY ASKED FOR A LIST OF SUBJECTS THAT
COMPLAINANT WISHED TO DISCUSS.
7. AFTER THE UNFAIR LABOR PRACTICE CHARGE WAS FILED, A MEETING WAS
SCHEDULED FOR MAY 2, 1973, TO DISCUSS THE MATTER. COMPLAINANT'S
REPRESENTATIVE, MR. MOLINA, SUFFERED A HEART ATTACK AND WAS HOSPITALIZED
AND ON OR ABOUT APRIL 25, MR. BRACKMANN, HAVING LEARNED OF MR. MOLINA'S
ILLNESS, SAW COMPLAINANT AND ASKED IF HE WANTED ANOTHER REPRESENTATIVE,
OR IF HE WANTED TO DISCUSS THE UNFAIR LABOR PRACTICE CHARGE WITH MR.
BRACKMANN AT THAT TIME. COMPLAINANT DECLINED TO DISCUSS THE MATTER AT
THAT TIME AND SAID HE WANTED TO GO FORWARD WITH THE MEETING ALREADY
SCHEDULED FOR MAY 2. ON OR ABOUT APRIL 27, 1973, MR. DAVE JOHNSON, OF
THE INDUSTRIAL RELATIONS DEPARTMENT, CALLED COMPLAINANT AND ASKED IF HE
WOULD MEET WITH MR. BRACKMAN AND OFFICIALS FROM THE IRD OFFICE.
COMPLAINANT TOLD MR. JOHNSON THAT HE HAD ALREADY TALKED TO MR. BRACKMAN,
AND HAD TOLD MR. BRACKMANN THAT HE WANTED HIS REPRESENTATIVE PRESENT AT
THE MEETING ALREADY SET FOR MAY 2. COMPLAINANT FURTHER TESTIFIED THAT
MR. RON GROAT, ALSO OF THE IRD OFFICE, THEREAFTER CONTACTED HIM AND
AGAIN ASKED IF HE WOULD MEET WITH MR. BRACKMANN AND OFFICIALS FROM IRD.
COMPLAINANT RESPONDED "NO, WE WILL MEET ON THE 2ND OF MAY." (TR. 17).
8. WITHOUT EXPLANATION, RESPONDENT CANCELLED THE MEETING SCHEDULED
FOR MAY 2, 1973, FOR THE PURPORTED REASON THAT,
". . . ATTEMPTS WERE MADE INFORMALLY TO RESOLVE THE MATTER OR TO AT
LEAST DISCUSS THE BASIS FOR IT. . . WHEN THE ATTEMPTS WERE REBUFFED,
THE MEETING THAT HAD BEEN SCHEDULED FOR MAY 2 WAS CANCELLED. . ."
(ASS'T. SEC. EXH. 1(A), EXHIBIT B, LETTER DATED JULY 5, 1973, ADDRESSED
TO AREA ADMINISTRATOR AND SIGNED BY CAPT. ROBERT P. MCKENZIE; TR.
87-88).
I FIND THAT COMPLAINANT PRESENTED AN ORAL GRIEVANCE TO HIS IMMEDIATE
SUPERVISOR; THAT, PRESUMABLY, THE GRIEVANCE CONCERNED THE FORCED TAKING
OF ANNUAL LEAVE; AND THAT BOTH MR. MARUSCH AND MR. BRACKMANN KNEW THAT
COMPLAINANT HAD A GRIEVANCE WHICH HE SOUGHT TO BRING UNDER THE NORTH
ISLAND GRIEVANCE PROCEDURE. I FURTHER FIND THAT IN ADDITION TO A
GRIEVANCE, COMPLAINANT REQUESTED, THROUGH HIS IMMEDIATE SUPERVISOR MR.
MARUSCH, A MEETING WITH MR. BRACKMANN TO DISCUSS OTHER MATTERS ABOUT
WHICH HE STATED HE WAS NOT GRIEVING. AS A RESULT, MR. BRACKMAN, WHILE
INDICATING A COMPLETE WILLINGNESS TO DISCUSS ANY PROBLEM WITH
COMPLAINANT, WAS UNCERTAIN WHAT SUBJECTS COMPLAINANT WISHED TO DISCUSS
AND ASKED THAT COMPLAINANT WRITE DOWN WHAT HE WANTED TO TALK ABOUT.
COMPLAINANT CONSTRUED THIS REQUEST AS A DEMAND THAT HE REDUCE HIS
GRIEVANCE TO WRITING. MR. MARUSCH ADMITTED THAT COMPLAINANT QUOTED A
DIRECTIVE WHICH COMPLAINANT FURTHER IDENTIFIED AS NASNI INSTRUCTION
12770.1B, AND SPECIFICALLY THAT PORTION WHICH PROVIDED THAT A GRIEVANCE
IN THE FIRST STEP "SHALL" BE PRESENTED "ORALLY". NEITHER COMPLAINANT
NOR RESPONDENT DID ANYTHING TO RESOLVE THE MATTER. COMPLAINANT, WHILE
INSISTING THAT HE HAD A RIGHT TO PRESENT HIS GRIEVANCE ORALLY, CONTINUED
TO RENEW HIS REQUEST TO TALK TO MR. BRACKMAN ABOUT MATTERS OTHER THAN
HIS GRIEVANCE AND NEVER INDICATED ANY WILLINGNESS TO JOT DOWN THE
SUBJECTS, OTHER THAN HIS GRIEVANCE, THAT HE WANTED TO TALK ABOUT.
RESPONDENT NEVER SUGGESTED THAT COMPLAINANT SIMPLY LIST THE SUBJECTS
OTHER THAN HIS GRIEVANCE THAT HE WANTED TO DISCUSS WITH MR. BRACKMANN.
FROM ALL OF THE TESTIMONY AND EVIDENCE I FIND THAT RESPONDENT DID,
KNOWINGLY, INSIST THAT COMPLAINANT STATE IN WRITING WHAT HIS GRIEVANCE
WAS, AS WELL AS INSIST THAT COMPLAINANT STATE IN WRITING THE OTHER
SUBJECTS HE WISHED TO DISCUSS WITH MR. BRACKMANN. WHILE I HAVE FOUND
THAT RESPONDENT KNEW THAT COMPLAINANT WAS PRESENTING A GRIEVANCE UNDER
THE NORTH ISLAND GRIEVANCE PROCEDURE, IT WAS FAR FROM CLEAR WHAT
COMPLAINANT WAS GRIEVING ABOUT, IN PART, BECAUSE CLAIMANT REQUESTED A
MEETING WITH MR. BRACKMANN ABOUT A VARIETY OF MATTERS MOST OF WHICH HE
WAS NOT PRESENTING AS GRIEVANCES, AND, IN PART, BECAUSE, EVEN FROM
COMPLAINANT'S TESTIMONY, IT WAS NOT CLEAR WHAT HIS GRIEVANCE WAS. THUS,
HE TESTIFIED THAT HIS GRIEVANCE WAS "THE FACT THAT WE WERE TO TAKE 40
HOURS ANNUAL LEAVE, BUT WE HAD WAREHOUSEMEN IN OUR SECTION DOING
EQUIPMENT SPECIALIST WORK" (TR. 14); BUT HE STATED HE DIDN'T BELIEVE IT
PROPER FOR. . .(EQUIPMENT SPECIALISTS) TO OPEN BOXES, WHICH CALLS FOR A
WAREHOUSEMEN'S JOB" (TR. 14); AND HE STATED, REFERRING TO MR. MARUSCH,
"HE HAD TRIED TO RESOLVE MATTERS REGARDING SAFETY" (TR. 21), "WE HAD
TRIED TO RESOLVE MATTERS REGARDING SAFETY" (TR.21), "WE HAD TALKED OF
THIS AS PRIVATELY BETWEEN HIM AND MYSELF PREVIOUSLY, AND NOT IN A
GRIEVING MANNER AND HAD DISCUSSED THE SITUATION. I FINALLY DECIDED TO
FILE A GRIEVANCE AFTER MUCH THOUGHT" (TR. 21).
OF COURSE, A PROVISION, SUCH AS NORTH ISLAND'S WHICH PROVIDES THAT
GRIEVANCES SHALL BE PRESENTED ORALLY, DESIGNED TO SIMPLIFY AND TO
EXPEDITE THE PRESENTATION OF GRIEVANCES, BECAME AN ACUTE DETERRENT TO
EXPEDITION HERE. ON THE ONE HAND, CLAIMANT PASSIONATELY EMBRACED
"SHALL" PRESENT HIS GRIEVANCE "ORALLY" AS A SACRED RIGHT ON WHICH HE
INSISTED TO THE POINT THAT HE REFUSED TO PUT IN WRITING THE MATTERS,
APART FROM HIS GRIEVANCE, THAT HE WISHED TO DISCUSS. ON THE OTHER HAND,
RESPONDENT'S REPRESENTATIVES SHOWED NO TRUE WILLINGNESS TO REACH A
SATISFACTORY SOLUTION AND RESPONDENT'S ACT OF CANCELLING THE SCHEDULED
MEETING OF MAY 2, 1973, WAS IMPROVIDENT AND ILL-ADVISED AND THE ASSERTED
JUSTIFICATION THEREFOR WAS A DISCREDIT TO RESPONDENT.
DEPLORABLE AS THE ACTION OF RESPONDENT WAS IN CANCELLING THE MEETING
OF MAY 2, 1973, THERE IS NO EVIDENCED INDICATING THAT RESPONDENT THEREBY
VIOLATED SECTIONS 19(A)(1) OR 19(A)(2) OF THE EXECUTIVE ORDER. THE
PURPOSE OF THE MEETING SCHEDULED FOR MAY 2, 1973, WAS TO ATTEMPT
INFORMALLY TO RESOLVE THE UNFAIR LABOR PRACTICE CHARGE AS REQUIRED BY
SECTION 203.2(A)(4) OF THE REGULATIONS. ONE WOULD HAVE TO BE CALLOUS
AND TOTALLY INSENSITIVE TO PURPOSE AND INTENT OF SECTION 203.2(A)(4) TO
EQUATE RESPONDENT'S ACTION WITH COMPLIANCE WITH "ATTEMPT INFORMALLY TO
RESOLVE" THE UNFAIR LABOR PRACTICE. A MEETING HAD BEEN SCHEDULED FOR
THIS PURPOSE FOR MAY 2. PRIOR THERETO, RESPONDENT ON THREE OCCASIONS
ASKED COMPLAINANT IF HE WANTED TO DISCUSS THE MATTER PRIOR TO MAY 2 AND
ON EACH OCCASION COMPLAINANT STATED THAT HE WOULD DISCUSS THE MATTER AT
THE MEETING ALREADY SCHEDULED FOR MAY 2. TO CONCLUDE, AS RESPONDENT
ASSERTED IN ITS LETTER OF JULY 5, 1973, TO THE AREA ADMINISTRATOR
(ASS'T. SEC. EXH. 1(A), EXHIBIT B), THAT "ATTEMPTS WERE MADE INFORMALLY
TO RESOLVE THE MATTER OR TO AT LEAST DISCUSS THE BASIS FOR IT", WOULD
MAKE A HOLLOW MOCKERY OF SECTION 203.2(A)(4). THE FURTHER ASSERTION
THAT ". . . THE ATTEMPTS WERE REBUFFED", AS JUSTIFICATION FOR
CANCELLATION OF THE MEETING SCHEDULED FOR MAY 2, IS AS ABSURD AS IT IS
FALSE. ALTHOUGH I FIND THAT RESPONDENT MADE NO ATTEMPT INFORMALLY TO
RESOLVE THE UNFAIR LABOR PRACTICE, THERE WAS NO CONTENTION THAT THE
REFUSAL TO ATTEMPT INFORMALLY TO RESOLVE THE MATTER CONSTITUTED AN
UNFAIR LABOR PRACTICE. INDEED, THE GRAVAMEN OF THE COMPLAINT WAS THAT
RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) AND 7(D)(1) OF THE
EXECUTIVE ORDER BY ITS REFUSAL TO ACCEPT THE ORAL GRIEVANCE. AS THE
CHARGED UNFAIR LABOR PRACTICE HAD ALREADY OCCURRED, THE REFUSAL TO
ATTEMPT TO RESOLVE THE UNFAIR LABOR PRACTICE INFORMALLY DID NOT CAUSE,
OR BRING ABOUT, THE ACT-REFUSAL TO ACCEPT, IN VIOLATION OF RESPONDENT'S
OWN UNILATERAL GRIEVANCE PROCEDURE, AN ORAL GRIEVANCE-ALLEGED TO HAVE
CONSTITUTED THE UNFAIR LABOR PRACTICE. IT APPEARS THAT THE REQUIREMENT
OF SECTION 203.2(A)(4), THAT THE PARTIES ATTEMPT INFORMALLY TO RESOLVE
THE MATTER, IS AN ADMINISTRATIVE REQUIREMENT PRIOR TO ISSUANCE OF A
NOTICE OF HEARING AND THAT NON-COMPLIANCE WOULD NOT PER SE, CONSTITUTE
AN UNFAIR LABOR PRACTICE; HOWEVER, AS THIS ISSUE IS NOT BEFORE ME IN
THIS PROCEEDING, NO DETERMINATION OF THAT QUESTION IS MADE.
THE "FORCED ANNUAL LEAVE" DECISION APPLIED TO ALL EMPLOYEES OF THE
MATERIAL DIVISION (ASS'T. SEC. EXH. 1(A), LETTER ANNOUNCEMENT DATED 15
MARCH 1973, SIGNED BY CAPTAIN R. B. POLK); THE DETAIL OF EMPLOYEES TO
SCREENING DUTIES WAS IN OPERATION BY SEPTEMBER 1972 TO MEET A THEN
EXISTING HIGH WORK VOLUME (TR. 55); RESPONDENT NEVER REFUSED TO MEET
WITH COMPLAINANT; ETC. IN SHORT, THERE WAS, NO EVIDENCE THAT
RESPONDENT EVER DISCRIMINATED IN REGARD TO HIRING, TENURE, PROMOTION, OR
OTHER CONDITIONS OF EMPLOYMENT WHICH ENCOURAGED OF DISCOURAGED
COMPLAINANT'S MEMBERSHIP IN A LABOR ORGANIZATION; OR THAT RESPONDENT
INTERFERED WITH, RESTRAINED, OR COERCED COMPLAINANT IN THE EXERCISE OF
HIS RIGHTS, IN VIOLATION OF SECTION 19(A)(1) OR (2) OF THE EXECUTIVE
ORDER, EXCEPT THAT RESPONDENT DID REFUSE TO ACCEPT COMPLAINANT'S ORAL
GRIEVANCE AND INSISTED THAT COMPLAINANT STATE HIS GRIEVANCE IN WRITING,
CONTRARY TO RESPONDENT'S UNILATERAL GRIEVANCE PROCEDURE.
AS NOTED ABOVE, COMPLAINANT CREATED A SITUATION THAT INVITED THE
ACTION RESPONDENT TOOK, NAMELY, TO REQUEST THAT COMPLAINANT STATE IN
WRITING WHAT HE WANTED TO DISCUSS, INCLUDING THE STATEMENT OF HIS
GRIEVANCE IN WRITING. BUT EVEN IF RESPONDENT HAD, WITHOUT SUCH
JUSTIFICATION, INSISTED THAT COMPLAINANT STATE HIS GRIEVANCE IN WRITING,
SUCH VIOLATION OF ITS UNILATERALLY ESTABLISHED GRIEVANCE PROCEDURE, IN
THE ABSENCE OF DISCRIMINATORY MOTIVATION OR DISPARITY OF TREATMENT BASED
ON UNION MEMBERSHIP CONSIDERATIONS, WOULD NOT THEREBY VIOLATE SECTION
19(A)(1) OR (2). OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO,
ILLINOIS, A/SLMR NO. 334, AFFIRMED IN PERTINENT PART, FLRC NO. 74A-3;
IN THE MATTER OF: GENERAL SERVICES ADMINISTRATION, REGION 7, FORTH
WORTH, TEXAS, CASE NOS. 63-4757(CA) AND 63-4758(CA) (REPORT AND
RECOMMENDATION OF ADMINISTRATIVE LAW JUDGE, DATED MAY 17, 1974).
WITH RESPECT TO SECTION 7(D)(1), THAT SECTION 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 WAINEWRIGHT, ALASKA, A/SLMR NO. 278;
U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, WESTERN
SERVICE CENTER, OGDEN, UTAH, A/SLMR. NO. 280.
HAVING FOUND THAT RESPONDENT HAD NOT ENGAGED IN 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 JUNE 14, 1974
WASHINGTON, D.C.
4 A/SLMR 421; P. 519; CASE NO. 20-4025(CA); AUGUST 26, 1974.
INTERNAL REVENUE SERVICE,
MID-ATLANTIC SERVICE CENTER
A/SLMR NO. 421
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION AND CHAPTER NO. 071, NATIONAL TREASURY
EMPLOYEES UNION (COMPLAINANTS) AGAINST THE INTERNAL REVENUE SERVICE,
MID-ATLANTIC SERVICE CENTER, PHILADELPHIA, PENNSYLVANIA (RESPONDENT).
THE COMPLAINANTS ALLEGED THAT THE RESPONDENT VIOLATED: (1) SECTION
19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY REFUSING TO ALLOW UNION
REPRESENTATION DURING AN ALLEGED "COUNSELLING SESSION," AND; (2)
SECTION 19(A)(1) OF THE ORDER BY ALLEGED INTERFERENCE WITH, AND
RESTRAINT OF, THE UNION PRESIDENT.
THE 19(A)(6) ALLEGATION WAS PRECIPITATED BY THE RESPONDENT'S
"COUNSELLING SESSION" WITH AN EMPLOYEE OVER HER ALLEGED EXCESSIVE USE OF
LEAVE. THE EMPLOYEE PREVIOUSLY HAD UNDERGONE A PHYSICAL EXAMINATION BY
THE RESPONDENT'S PHYSICIAN AND WAS FOUND FIT FOR DUTY. SHE ALSO WAS
UNDER THE TERMS OF THE "LEAVE LETTER" WHICH REQUIRED HER TO PRODUCE
MEDICAL OR OTHER ACCEPTABLE EVIDENCE FOR ANY ABSENCE DUE TO SICKNESS
REGARDLESS OF DURATION, WITH FAILURE TO COMPLY RESULTING IN THE EMPLOYEE
BEING CHARGED WITH ABSENCE WITHOUT LEAVE. THEREAFTER, THE EMPLOYEE
ALLEGEDLY TOOK SICK AND UNDER THE TERMS OF THE LEAVE LETTER PRODUCED A
DOCTOR'S CERTIFICATE AS JUSTIFICATION FOR TIME SHE WAS AWAY FROM THE
JOB. UPON REVIEW OF THE CERTIFICATE, THE RESPONDENT'S PHYSICIAN FOUND
ONLY ONE DAY'S LEAVE TO BE JUSTIFIED, AND RECOMMENDED THAT THE EMPLOYEE
BE FOUND ABSENT WITHOUT LEAVE (AWOL) FOR THE REST OF THE TIME. THE
FOREGOING DECISION WAS DISCUSSED BY MANAGEMENT REPRESENTATIVES WHO WERE
ADVISED BY THE RESPONDENT'S PHYSICIAN THAT THE EMPLOYEE SHOULD BE
COUNSELLED WITH RESPECT TO HER LEAVE PROBLEM. THEREAFTER, THE EMPLOYEE
WAS CALLED TO A MEETING WITH THE RESPONDENT'S EMPLOYEE-RELATIONS
SPECIALIST AND HER OWN SUPERVISOR BUT WAS PREVENTED FROM HAVING HER
UNION REPRESENTATIVE ATTEND THE MEETING ON THE GROUNDS THAT "THE MEETING
WAS AN INFORMAL DISCUSSION WITH AN EMPLOYEE ABOUT HER LEAVE AND DID NOT
INVOLVE A GRIEVANCE." AT THE MEETING, THE EMPLOYEE'S LEAVE RECORD WAS
REVIEWED, SHE WAS INFORMED OF THE REASON WHY THE RESPONDENT'S PHYSICIAN
WOULD NOT APPROVE HER MEDICAL CERTIFICATE, AND, IN ACCORDANCE WITH THE
FINDINGS OF THE RESPONDENT'S PHYSICIAN, SHE WAS MARKED AWOL FOR PART OF
THE PERIOD OF HER ABSENCE.
THE ADMINISTRATIVE LAW JUDGE FOUND CONTROLLING THE HOLDING IN
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD,
A/SLMR NO. 336, IN WHICH THE ASSISTANT SECRETARY CONCLUDED THAT CERTAIN
COUNSELLING SESSIONS WERE NOT "FORMAL DISCUSSIONS" WITHIN THE MEANING OF
SECTION 10(E) OF THE ORDER. HE NOTED THAT THE "COUNSELLING SESSION" IN
THE INSTANT CASE DID NOT INVOLVE A GRIEVANCE OVER THE EMPLOYEE'S LATEST
REQUEST FOR LEAVE, NOR DID IT RESULT IN ANY ADVERSE ACTION, ALTHOUGH THE
POTENTIAL FOR ADVERSE ACTION WAS PRESENT BY HER BEING MARKED AWOL. THE
ADMINISTRATIVE LAW JUDGE ALSO CONCLUDED IN THIS REGARD THAT WHILE HE WAS
AWARE THAT THE UNION WAS CONCERNED ABOUT THE INDIVIDUAL APPLICATIONS OF
LEAVE STANDARDS BY THE DIFFERENT SUPERVISORS, THIS WAS NOT THE ISSUE AT
THE EMPLOYEE'S CONFERENCE WITH HER SUPERIORS, AND THAT THE ENTIRE
DISCUSSION AT THE "COUNSELLING SESSION" CENTERED AROUND THE INDIVIDUAL
EMPLOYEE'S CONTINUED USE OF LEAVE, AND THE FACT THAT THE RESPONDENT'S
DOCTOR RECOMMENDED DENIAL OF A PORTION OF HER LATEST REQUEST FOR LEAVE.
ACCORDINGLY, HE CONCLUDED THAT THE DENIAL OF UNION REPRESENTATION DID
NOT VIOLATE SECTION 19(A)(6) OF THE ORDER AS THE COMPLAINANT WAS NOT
ENTITLED TO BE REPRESENTED DURING THE "COUNSELLING SESSION," AND
FURTHER, THAT THE DENIAL OF SUCH REPRESENTATION DID NOT INTERFERE WITH
ANY RIGHTS ASSURED BY THE EXECUTIVE ORDER, AND THEREFORE, DID NOT
VIOLATE SECTION 19(A)(1).
THE ADMINISTRATIVE LAW JUDGE FOUND ALSO THAT THE ALLEGED INTERFERENCE
WITH THE RESTRAINT OF THE UNION PRESIDENT WAS NOT VIOLATIVE OF SECTION
19(A)(1). THIS ALLEGATION AROSE AS THE RESULT OF AN ALLEGED STATEMENT
BY THE RESPONDENT'S DIRECTOR TO THE COMPLAINANT'S PRESIDENT THAT SHE
WOULD BE SORRY IF THE UNION POSTED BULLETINS IN THE MAIN BUILDING OF THE
ACTIVITY, URGING EMPLOYEES TO BOYCOTT FREE COFFEE AND CAKE PROVIDED BY A
VENDING MACHINE OPERATOR TO PROMOTE ITS FOOD SERVICE OPERATION. THE
ADMINISTRATIVE LAW JUDGE FOUND THAT UNDER THE ENTIRE CIRCUMSTANCES THE
STATEMENT BY THE DIRECTOR WAS NOT COERCIVE, AS IT WAS NOT MOTIVATED BY
ANY ANIMUS TOWARD THE UNION OR ITS OFFICIALS, AND REFLECTED ONLY THE
DIRECTOR'S OVERRIDING DESIRE TO SOLVE THE FOOD SERVICE PROBLEM AT THE
FACILITY. IN THIS REGARD, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT,
IN THE CONTEXT OF THE DIRECTOR'S CONCERN THAT THE FOOD SERVICE OPERATOR
WOULD TERMINATE ITS CONTRACT AND LEAVE THE FACILITY WITHOUT ANY FOOD
SERVICES, THE STATEMENT WAS NOT A THREAT OF REPRISAL OR ANY RETALIATION
AGAINST THE UNION PRESIDENT OR ANY OTHER UNION OFFICIAL, BUT MERELY AN
INDICATION THAT THE UNION WOULD HAVE TO BEAR FULL RESPONSIBILITY FOR ANY
TERMINATION OF FOOD SERVICE.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE
COMPLAINANTS' EXCEPTIONS AND SUPPORTING BRIEF, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
INTERNAL REVENUE SERVICE,
MID-ATLANTIC SERVICE CENTER
AND
NATIONAL TREASURY EMPLOYEES UNION
CHAPTER NO. 071 AND
NATIONAL TREASURY EMPLOYEES UNION /1/
ON MAY 1, 1974, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT 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 COMPLAINANTS 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 THIS CASE, INCLUDING THE
COMPLAINANTS' EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 20-4025(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 26, 1974
/1/ THE NAMES OF THE COMPLAINANTS APPEAR AS AMENDED AT THE HEARING.
IN THE MATTER OF
INTERNAL REVENUE SERVICE
MID-ATLANTIC SERVICE CENTER,
AND
NATIONAL TREASURY EMPLOYEES UNION
AND CHAPTER NO. 071, NATIONAL
TREASURY EMPLOYEES UNION /1/
ROBERT M. TOBIAS, ESQ.,
WASHINGTON, D.C.
G. JERRY SHAW, ESQ.,
WASHINGTON, D.C.
BEFORE: GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON APRIL 9, 1973, UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES
AND ITS CHAPTER NO. 071 (HEREINAFTER CALLED THE UNION) AGAINST INTERNAL
REVENUE SERVICE, MID-ATLANTIC SERVICE CENTER (HEREINAFTER CALLED THE
RESPONDENT), A NOTICE OF HEARING WAS ISSUED BY THE ASSISTANT REGIONAL
DIRECTOR FOR LABOR-MANAGEMENT SERVICES FOR THE PHILADELPHIA REGION ON
JULY 3, 1973. THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED
SECTIONS 19(A)(1), AND (6) OF THE EXECUTIVE ORDER. /2/
A HEARING WAS HELD IN THIS MATTER ON SEPTEMBER 27, 1973 IN
PHILADELPHIA, PENNSYLVANIA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE
ON THE ISSUES INVOLVED. BRIEFS WERE FILED BY THE PARTIES AND HAVE BEEN
DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATIONS OF THE
WITNESSES AND THEIR DEMEANOR, AND UPON THE RELEVANT EVIDENCE ADDUCED AT
THE HEARING I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
THE CONDUCT COMPLAINED OF IN THIS CASE INVOLVES TWO UNRELATED ISSUES
WHICH THE COMPLAINANT ALLEGES TO BE SEPARATE VIOLATIONS OF THE EXECUTIVE
ORDER. FOR REASONS OF CLARITY AND CONVENIENCE, EACH WILL BE TREATED
SEPARATELY HEREIN.
JOHN WALDER HAD BEEN EMPLOYED BY THE INTERNAL REVENUE SERVICE SINCE
1966. AT THE TIME OF THE HEARING, SHE WAS ASSIGNED TO THE MID-ATLANTIC
SERVICE CENTER IN THE STONITE BUILDING. /3/ SINCE 1967, MS. WILDER HAS
BEEN EXPERIENCING A PROBLEM REGARDING EXCESSIVE USE OF HER LEAVE. THE
RECORD EVIDENCE DISCLOSES FREQUENT ABSENCES INVOLVING THE USE OF ANNUAL
LEAVE, SICK LEAVE AND LEAVE WITHOUT PAY. THE PROBLEM BECAME SO ACUTE
THAT HER SUPERVISOR, NAOMI SHEPARD, PLACED HER UNDER A "LEAVE LETTER" ON
JANUARY 20, 1971. /4/
MS. WALDER'S USE OF HER LEAVE DID NOT IMPROVE AND HER SUPERVISOR
REQUESTED THAT A PHYSICAL EXAMINATION BE GIVEN BY THE RESPONDENT'S
PHYSICIAN TO DETERMINE IF SHE WERE FIT FOR DUTY. THIS EXAMINATION WAS
GIVEN ON MAY 10, 1972, AND MS. WALDER WAS CERTIFIED BY THE RESPONDENT'S
DOCTOR TO BE FIT FOR DUTY. ON JUNE 29, 1972 MRS. SHEPARD AGAIN ISSUED
ANOTHER "LEAVE LETTER" TO MS. WALDER REQUIRING THE PRODUCTION OF A
MEDICAL CERTIFICATE TO SUPPORT ANY ABSENCE DUE TO SICKNESS. IN THIS
LETTER, HOWEVER, IT WAS STATED THAT DR. MADIANOS, THE RESPONDENT'S
PHYSICIAN, WOULD REVIEW THE CERTIFICATES AND IF HE RECOMMENDED THAT THE
LEAVE SHOULD NOT BE GRANTED, MS. WALDER WOULD BE CHARGED ABSENCE WITHOUT
LEAVE. THE LETTER ALSO CONTAINED A WARNING THAT REPEATED INSTANCES OF
AWOL WERE GROUNDS FOR DISCIPLINARY ACTION.
MS. WALDER WAS ABSENT FROM WORK ON SEPTEMBER 8, 1972 DUE TO ILLNESS
AND THE ENTIRE FOLLOWING WEEK (SEPTEMBER 11 THROUGH 15). WHEN SHE
RETURNED TO WORK, MS. WALDER SUBMITTED A DOCTOR'S CERTIFICATE TO HER
SUPERVISOR COVERING THE PERIOD SEPTEMBER 8 THROUGH SEPTEMBER 14. THE
CERTIFICATE DID NOT RELATE TO HER ABSENCE ON SEPTEMBER 15.
IN ACCORDANCE WITH THE TERMS OF THE LEAVE LETTER, THE CERTIFICATE WAS
SUBMITTED TO DR. MADIANOS. HE DETERMINED THAT THE ILLNESS FOR THE WEEK
BEGINNING SEPTEMBER 11 WAS UNRELATED TO THE ILLNESS SHE SUFFERED ON
SEPTEMBER 8. HE RECOMMENDED APPROVAL OF THE LEAVE FOR SEPTEMBER 8, BUT
DISAPPROVAL OF THE ABSENCE FOR THE WEEK COMMENCING SEPTEMBER 11. THE
DOCTOR'S RECOMMENDATION WAS SENT TO JAMES MCNALLY, AN EMPLOYEE RELATIONS
SPECIALIST WHO WORKED IN THE EMPLOYEE-MANAGEMENT RELATIONS SECTION.
MCNALLY INFORMED ROBERT STANTON, CHIEF OF THE PERSONNEL BRANCH, OF THE
DOCTOR'S RECOMMENDATION REGARDING MS. WALDER'S MEDICAL CERTIFICATE.
STANTON AND MCNALLY THEN CONFERRED WITH DR. MADIANOS TO DETERMINE THE
BASIS FOR HIS DISAPPROVAL OF THE REQUESTED LEAVE. THE DOCTOR SUGGESTED
THAT MS. WALDER BE CALLED IN AND ADVISED THAT BASED ON HER RECENT
FITNESS FOR DUTY EXAMINATION THERE WAS NO UNDERLYING REASON FOR HER
CONSTANT USE OF LEAVE DUE TO ILLNESS. THE DOCTOR INDICATED THAT THE
EMPLOYEE SHOULD BE TOLD TO MAKE AN EFFORT TO COME TO WORK EVEN WHEN SHE
FELT SOME DISCOMFORT AND TO UTILIZE THE SERVICES OF THE RESPONDENT'S
HEALTH UNIT.
AFTER THE CONFERENCE WITH THE DOCTOR, STANTON INSTRUCTED MCNALLY TO
CALL IN THE EMPLOYEE AND HER SUPERVISOR AND TO "COUNSEL" THE EMPLOYEE ON
THE MATTERS DISCUSSED WITH THE DOCTOR. MCNALLY CONTACTED MRS. SHEPARD
AND THE MEETING WAS ARRANGED FOR THE AFTERNOON OF SEPTEMBER 22. MRS.
SHEPARD INFORMED MS. WALDER THAT SHE WAS TO ACCOMPANY HER TO THE
BOULEVARD BUILDING FOR A MEETING WITH MCNALLY. MS. WALDER SUSPECTED
THAT THIS MEETING WOULD INVOLVE HER ABSENCE THE PRIOR WEEK AS SHE HAD
NOT RECEIVED WORD REGARDING APPROVAL OF HER MEDICAL CERTIFICATE. SHE
THEREUPON CALLED HELEN MCCAULEY, PRESIDENT OF THE LOCAL CHAPTER OF THE
UNION, AND ASKED HER TO BE PRESENT AT THE MEETING. BECAUSE THEY DID NOT
KNOW EACH OTHER BY SIGHT, MRS. MCCAULEY ARRANGED FOR MS. WILDER TO
IDENTIFY HER WHEN SHE CAME TO THE BOULEVARD BUILDING FOR THE MEETING.
MRS. MCCAULEY WORKED IN THE SAME SECTION WHERE THE EMPLOYEE RELATIONS
SPECIALIST'S OFFICE WAS LOCATED.
DURING THE COURSE OF THE TELEPHONE COMMUNICATIONS BETWEEN MRS.
MCCAULEY AND MS. WALDER, MRS. SHEPARD CONCLUDED THAT THE EMPLOYEE WAS
SEEKING TO HAVE THE UNION PRESIDENT REPRESENT HER AT THE MEETING. SHE
TELEPHONED MCNALLY WHO IN TURN PASSED ON THE INFORMATION TO STANTON.
STANTON TOLD MCNALLY THAT NO DISCIPLINARY ACTION WAS CONTEMPLATED AND
THERE WERE NO ISSUES AFFECTING OTHER EMPLOYEES. HE STATED THAT IT WAS
TO BE A COUNSELLING SESSION AND THE UNION DID NOT HAVE A RIGHT TO BE
PRESENT.
WHEN MRS. SHEPARD AND MS. WALDER ENTERED MCNALLY'S OFFICE, MRS.
MCCAULEY CAME IN TO ATTEND THE MEETING. MCNALLY TOLD THE UNION
PRESIDENT THAT THE MEETING WAS AN INFORMAL DISCUSSION WITH AN EMPLOYEE
ABOUT HER LEAVE AND THAT IT DID NOT INVOLVE A GRIEVANCE. HE ASKED MRS.
MCCAULEY TO LEAVE THE MEETING BECAUSE THERE WAS NO NEED FOR THE UNION
REPRESENTATIVE TO BE PRESENT. MRS. MCCAULEY OBJECTED TO THE DECISION,
BUT LEFT THE MEETING STATING THAT SHE WOULD CHECK WITH THE NATIONAL
OFFICE OF THE UNION. /5/
DURING THE COURSE OF THE "COUNSELLING" SESSION, MCNALLY AND MRS.
SHEPARD REVIEWED MS. WALDER'S LEAVE RECORD. MCNALLY TOLD THE EMPLOYEE
THE REASONS WHY DR. MADIANOS WOULD NOT APPROVE HER MEDICAL CERTIFICATE,
AND HE PASSED ON THE DOCTOR'S ADVICE THAT SHE SHOULD MAKE AN EFFORT TO
COME TO WORK EVEN WHEN SHE FELT A LITTLE DISCOMFORT. HE ALSO INFORMED
THE EMPLOYEE THAT THE RESPONDENT DID NOT CONTEMPLATE ANY DISCIPLINARY
ACTION AT THAT TIME. MRS. SHEPARD TOLD THE EMPLOYEE THAT SHE WAS GOING
TO ABIDE BY DOCTOR'S RECOMMENDATION AND WOULD APPROVE THE LEAVE FOR
SEPTEMBER 8, BUT WOULD MARK THE EMPLOYEE AWOL FOR THE WEEK OF SEPTEMBER
11 THROUGH SEPTEMBER 15. THE MEETING CONCLUDED AND MS. WALDER RETURNED
TO HER JOB. SHE HAS SINCE TRANSFERRED TO ANOTHER SECTION AND HER LEAVE
RECORD HAS APPARENTLY IMPROVED.
COUNSEL FOR THE COMPLAINANT, IN A WELL-REASONED BRIEF, MAKES A COGENT
ARGUMENT FOR THE FINDING OF A VIOLATION OF 19(A)(6). THE THRUST OF THE
COMPLAINANT'S CONTENTION IS THAT AN AGENCY CANNOT DISREGARD THE
EXCLUSIVE REPRESENTATIVE AND DEAL WITH EMPLOYEES INDIVIDUALLY CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS. UNITED STATES ARMY SCHOOL/TRAINING CENTER,
FT. MCCLELLAN, ALABAMA, A/SLMR NO. 42. ON THE BASIS OF THE ASSISTANT
SECRETARY'S DECISIONS IN THE FORT JACKSON /6/ AND FORT WAINWRIGHT /7/
CASES, THE COMPLAINANT ARGUES THAT THE RESPONDENT MUST AFFORD THE UNION
AN 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. AS THIS RIGHT FLOWS TO THE
UNION BY UNION BY VIRTUE OF SECTION 10(E) /8/ OF THE EXECUTIVE ORDER,
THE DENIAL OF THE RIGHT CONSTITUTES A VIOLATION OF SECTION 19(A)(6). IN
ADDITION, IT IS URGED THAT THE DENIAL OF UNION REPRESENTATION INTERFERES
WITH THE RIGHT OF THE EMPLOYEE AFFECTED TO ASSIST THE LABOR ORGANIZATION
AND TO BE FAIRLY REPRESENTED BY THE UNION, AND THEREBY CONSTITUTES A
VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE ORDER.
WERE THESE THE ONLY DECISIONS BEARING ON THIS ISSUE OR WERE THIS A
CASE OF FIRST IMPRESSION, I WOULD BE PERSUADED A VIOLATION HAD INDEED
OCCURRED. BUT THE COMPLAINANT'S ARGUMENT FAILS TO TAKE INTO ACCOUNT A
MORE RECENT DECISION OF THE ASSISTANT SECRETARY WHICH I FIND TO BE
SQUARELY IN POINT. THIS DECISION ISSUED JANUARY 8, 1974, IN DEPARTMENT
OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD, A/SLMR NO.
336. IN THIS LATTER CASE THE EMPLOYEE WAS CALLED IN FOR A "COUNSELLING
SESSION" REGARDING VERBAL ABUSE OF A SUPERIOR WHO REFUSED TO ALLOW HIM
TO HAVE A UNION REPRESENTATIVE PRESENT DURING A DISCUSSION OF JOB
CHANGES AFFECTING THE EMPLOYEE. A SECOND INCIDENT OCCURRED WHEN THE
EMPLOYEE WORE CIVILIAN CLOTHES TO WORK CONTRARY TO A REGULATION
REQUIRING THE WEARING OF A UNIFORM WHILE AT THE BASE. THE EMPLOYEE WAS
AGAIN CALLED IN BY A SUPERIOR FOR "COUNSELLING" AND HE WAS DENIED THE
RIGHT TO HAVE A UNION REPRESENTATIVE PRESENT. THE ASSISTANT SECRETARY
HELD THAT IN EACH INSTANCE THE MATTERS DISCUSSED RELATED "TO AN
INDIVIDUAL EMPLOYEE'S ALLEGED SHORTCOMINGS WITH RESPECT TO THE ALLEGED
ABUSIVE LANGUAGE" AND TO THE EMPLOYEE'S "ALLEGED FAILURE TO FOLLOW A
UNIFORM REQUIREMENT. . ." THE ASSISTANT SECRETARY HELD THAT THE
INCIDENTS "HAD NO WIDER RAMIFICATIONS THAN BEING LIMITED TO DISCUSSIONS
AT A PARTICULAR TIME WITH AN INDIVIDUAL EMPLOYEE CONCERNING PARTICULAR
INCIDENTS AS TO HIM." THUS THE ASSISTANT SECRETARY FOUND THAT THE
COUNSELLING SESSIONS DID NOT CONSTITUTE FORMAL DISCUSSIONS WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER AND THE DENIAL OF REPRESENTATION
DID NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(6).
IN VIEW OF THIS MORE RECENT DECISION OF THE ASSISTANT SECRETARY, I AM
CONSTRAINED TO FIND THAT IN THE INSTANT CASE A VIOLATION OF THE
EXECUTIVE ORDER HAS NOT BEEN COMMITTED. THE "COUNSELLING SESSION" OF
MS. WALDER INDEED RELATED TO HER OWN PARTICULAR SHORTCOMINGS REGARDING
HER EXTENSIVE USE OF LEAVE OVER A LONG PERIOD OF TIME. MS. WALDER'S
CONTINUED USE OF HER LEAVE RESULTED IN THE RESPONDENT ISSUING TWO "LEAVE
LETTERS" TO HER AND ALSO REQUIRING HER TO SUBMIT TO A PHYSICAL
EXAMINATION TO DETERMINE IF HER USE OF LEAVE WAS WARRANTED FROM A HEALTH
STANDPOINT. THE "COUNSELLING SESSION" DID NOT INVOLVE A GRIEVANCE OVER
MS. WALDER'S LATEST REQUEST FOR LEAVE NOR DID IT RESULT IN ANY ADVERSE
ACTION-- ALTHOUGH THE POTENTIAL FOR ADVERSE ACTION WAS PRESENT BY HER
BEING MARKED AWOL. I AM FULLY COGNIZANT OF THE FACT THAT THE UNION WAS
CONCERNED ABOUT THE VARIANCE IN THE APPLICATION OF LEAVE STANDARDS BY
DIFFERENT SUPERVISORS, BUT THAT WAS NOT THE ISSUE REGARDING MS. WALDER'S
CONFERENCE WITH THE EMPLOYEE RELATIONS SPECIALIST. THE ENTIRE
DISCUSSION CENTERED AROUND MS. WALDER'S CONTINUED USE OF LEAVE AND THE
FACT THAT THE DOCTOR RECOMMENDED DENIAL OF A PORTION OF HER LATEST
REQUEST FOR LEAVE. IN THESE CIRCUMSTANCES, I CANNOT DRAW A DISTINCTION
BETWEEN THE SITUATION IN THIS CASE AND THE SITUATION IN THE TEXAS AIR
NATIONAL GUARD CASE. ACCORDINGLY, I AM COMPELLED TO HOLD THAT THE
DENIAL OF UNION REPRESENTATION HERE DID NOT VIOLATE SECTION 19(A)(6) OF
THE EXECUTIVE ORDER AND FIND THAT THE UNION WAS NOT ENTITLED TO BE
REPRESENTED DURING THE "COUNSELLING SESSION". IT FOLLOWS THEREFORE,
THAT THE DENIAL OF SUCH REPRESENTATION DID NOT INTERFERE WITH ANY RIGHTS
ASSURED MS. WALDER BY THE EXECUTIVE ORDER AND THUS, DID NOT CONSTITUTE A
VIOLATION OF 19(A)(1).
THE SECOND ISSUE INVOLVED IN THIS CASE RELATES TO A DISPUTE BETWEEN
THE UNION OFFICIALS AND THE RESPONDENT REGARDING THE TYPE OF FOOD
SERVICE AVAILABLE TO THE EMPLOYEES WORKING AT THE STONITE BUILDING. AS
PREVIOUSLY NOTED, THE SERVICE CENTER IS HOUSED IN TWO SEPARATE BUILDINGS
LOCATED SEVERAL MILES APART. THE MAJORITY OF THE EMPLOYEES WORK IN THE
MAIN OR BOULEVARD BUILDING, AND THE RESPONDENT IS IN THE PROCESS OF
EXPANDING THAT FACILITY TO ENABLE ALL OF THE EMPLOYEES TO WORK IN ONE
BUILDING. THE WORK FORCE AT THE STONITE BUILDING HAS BEEN STEADILY
DECREASING AS SPACE BECOMES AVAILABLE IN THE MAIN FACILITY.
THE BOULEVARD BUILDING CONTAINS A CAFETERIA OPERATED BY A PRIVATE
CONCESSIONAIRE CALL ARA. /9/ OVER A PERIOD OF TIME THE EMPLOYEES AND
THE UNION OFFICIALS BECAME DISSATISFIED WITH THE QUALITY OF THE FOOD
SERVICE PROVIDED BY ARA. THE DISSATISFACTION WAS FREQUENTLY EXPRESSED
BY THE UNION OFFICIALS IN MEETINGS WITH THE MANAGEMENT AND OFTEN TO THE
MANAGER OF ARA AS WELL. FEELINGS OFTEN RAN HIGH, AND ARA ON MORE THAN
ONE OCCASION THREATENED TO TERMINATE ITS CONTRACT.
AT THE STONITE BUILDING A CAFETERIA HAD BEEN ORIGINALLY OPERATED BY
HORN & HARDART UNTIL SOME TIME IN 1969. IT WAS THEN REPLACED BY TWO
SMALL LUNCH-TYPE FACILITIES OPERATED BY TWO BLIND CONCESSIONARIES UNDER
THE SPONSORSHIP OF THE STATE AGENCY FOR THE BLIND. THEY SERVED PRE-MADE
SANDWICHES AND THE LIKE. THE VOLUME OF BUSINESS DIMINISHED AT THE
STONITE BUILDING AS THE WORK FORCE DECREASED DUE TO THE PHASING OUT
PROGRAM OF THE RESPONDENT. IN THE LATE SUMMER OF 1972, ONE OF THE BLIND
CONCESSIONARIES LEFT THE STONITE BUILDING BECAUSE OF THE DECLINE IN
BUSINESS. THE REMAINING BLIND CONCESSIONAIRE BECAME QUITE CONCERNED
OVER THE DROP IN THE VOLUME OF BUSINESS AND ALSO THREATENED TO LEAVE.
ON OCTOBER 3, 1972 THE REMAINING BLIND CONCESSIONAIRE PULLED OUT FROM
THE STONITE BUILDING. HE GAVE THE RESPONDENT APPROXIMATELY 10 DAYS
NOTICE OF HIS INTENTION TO LEAVE AND HE TOOK ALL OF THE FOOD SERVICE
EQUIPMENT WHICH REMAINED IN THE BUILDING. /10/ BECAUSE OF THE
INACCESSIBILITY TO OUTSIDE EATING FACILITIES, MANAGEMENT BECAME QUITE
CONCERNED THAT THE EMPLOYEES AT STONITE WOULD BE WITHOUT ANY TYPE OF
FOOD SERVICE. MORRILL, DIRECTOR OF THE SERVICE CENTER AND A
REPRESENTATIVE OF GSA APPROACHED OFFICIALS OF ARA IN AN EFFORT TO GET
THAT FIRM TO PROVIDE FOOD SERVICES FOR THE STONITE EMPLOYEES. BECAUSE
OF THE DISSATISFACTION WITH THE ENTIRE SERVICE CENTER CONTRACT, THE
OFFICIALS OF ARA WERE RELUCTANT TO ASSUME THIS RESPONSIBILITY. THE
UNION OFFICIALS IN MEETINGS WITHIN MANAGEMENT PROPOSED THAT ARA OPERATE
A COMPLETE CAFETERIA AT STONITE WITH HOT ENTREES. ARA REJECTED THIS
IDEA AND OFFERED TO PROVIDE A VENDING MACHINE TYPE OF SERVICE. THE
UNION OFFICIALS THEN POLLED THE EMPLOYEES OF BOTH BUILDINGS TO DETERMINE
WHETHER THEY PREFERRED ARA VENDING SERVICES OR NO FACILITIES AT ALL. A
LITTLE LESS THAN 50% OF THE EMPLOYEES RESPONDED TO THE QUESTIONAIRE. OF
THIS NUMBER APPROXIMATELY 1,200 OPTED FOR NO SERVICES AT ALL AND 25 WERE
IN FAVOR OF THE VENDING MACHINES.
ON OCTOBER 30, 1972, THERE WAS A MEETING BETWEEN MORRILL, A
REPRESENTATIVE OF GSA, REPRESENTATIVES OF ARA, AND MRS. MCCAULEY AND
O'SHOUGHNESSY /11/ OF THE UNION. THE UNION OFFICIALS WERE RESISTING THE
VENDING MACHINE TYPE SERVICE. MORRILL AND THE REPRESENTATIVE OF GSA
TOOK THE POSITION THAT ARA WAS THE ONLY CONCESSIONNAIRE AVAILABLE TO
PROVIDE SOME TYPE OF FOOD SERVICE, AND THAT IT SHOULD BE INSTITUTED AS
QUICKLY AS POSSIBLE. MANY HEATED STATEMENTS WERE MADE DURING THE COURSE
OF THE MEETING. MRS. MCCAULEY TESTIFIED THAT MORRILL STATED THE UNION
WOULD BE RESPONSIBLE IF THERE WERE NO CAFETERIA FACILITIES AT ALL AT THE
SERVICE CENTER. /12/
ALTHOUGH IT WAS UNDER NO OBLIGATION TO PROVIDE FOOD SERVICE TO THE
STONITE EMPLOYEES, ARA FINALLY AGREED TO INVEST IN A VENDING MACHINE
TYPE OPERATION. ARA'S OFFICIALS INSISTED, HOWEVER, THAT RESPONDENT GIVE
THE OPERATION ITS FULL SUPPORT. ARA INSTALLED THE VENDING MACHINES, AND
AS A PROMOTIONAL EFFORT TO CREATE GOOD WILL DECIDED TO SERVE FREE COFFEE
AND CAKE TO THE EMPLOYEES OF BOTH BUILDINGS ON NOVEMBER 2, 1972. THE
UNION POSTED LEAFLETS IN THE STONITE BUILDING URGING THE EMPLOYEES TO
REFUSE THE COFFEE AND CAKE AND TO SUPPORT THE LOCAL CHAPTER OF THE
UNION. THE MANAGER OF ARA WAS QUITE DISTURBED OVER THE LEAFLETS AND
CONFRONTED MORRILL ABOUT THE SITUATION. HE INDICATED THAT THE BOYCOTT
BY THE EMPLOYEES HAD ALREADY TAKEN PLACE AT THE STONITE BUILDING AND HE
WAS CONCERNED THAT THE NOTICE WOULD BE POSTED IN THE BOULEVARD BUILDING
AS WELL. HE REMINDED MORRILL THAT ARA HAD MADE A CONSIDERABLE
INVESTMENT IN EQUIPMENT FOR THE STONITE OPERATION AND THERE WAS NOW A
POSSIBILITY THAT THE SERVICE WOULD BE BOYCOTTED ENTIRELY. THE MANAGER
THREATENED TO RECOMMEND THAT ARA TERMINATE ITS CONTRACT WITH THE ENTIRE
SERVICE CENTER.
MORRILL CALLED MRS. MCCAULEY AND O'SHAUGHNESSY TO HIS OFFICE. THERE
IS SOME CONFLICT AS TO WHAT WAS SAID DURING THE CONVERSATION BETWEEN
THEM. ACCORDING TO MRS. MCCAULEY, MORRILL WANTED TO KNOW IF THE UNION
WERE GOING TO POST THE BULLETINS IN THE MAIN BUILDING, MRS. MCCAULEY
REPLIED THAT SHE DID NOT KNOW. SHE TESTIFIED THAT THE DIRECTOR THEN
TOLD HER THAT IF SHE DID SO SHE WOULD BE SORRY. MORRILL, ON THE OTHER
HAND, TESTIFIED THAT HE REMINDED MRS. MCCAULEY AND O'SHAUGHNESSY THAT
THE EMPLOYEES DEPENDED UPON THE CAFETERIA FOR FOOD SERVICES AND IF ARA
TERMINATED ITS CONTRACT, THERE WOULD BE NO FACILITIES AVAILABLE. HE
STATED THAT MRS. MCCAULEY TOOK THE POSITION THAT THE EMPLOYEES WOULD
RATHER HAVE NO SERVICE AT ALL IN PREFERENCE TO ARA. HE THEN TOLD MRS.
MCCAULEY THAT IF THERE WERE NO SERVICE AT ALL SHE MIGHT WELL BE SORRY
FOR THAT DECISION.
THE COMPLAINANT TAKES THE POSITION THAT MORRILL'S STATEMENT TO MRS.
MCCAULEY THAT SHE WOULD BE SORRY IF SHE POSTED THE LEAFLETS WAS
INHERENTLY COERCIVE AND INTIMIDATING, AND THEREFORE RESTRAINED MRS.
MCCAULEY AS THE UNION PRESIDENT IN THE EXERCISE OF HER RIGHTS UNDER
SECTION 1(A) OF THE EXECUTIVE ORDER. I DO NOT AGREE. AS CORRECTLY
POINTED OUT IN THE COMPLAINANT'S BRIEF, THE DETERMINATION OF WHETHER
MORRILL'S STATEMENTS WERE COERCIVE MUST TAKE INTO CAREFUL ACCOUNT THE
ENTIRE CIRCUMSTANCES SURROUNDING THE MAKING OF THIS STATEMENT. THE
FACTS CLEARLY SHOW THAT THERE HAD BEEN A LONG RUNNING DISPUTE BETWEEN
THE UNION OFFICIALS AND THE MANAGER OF ARA OVER THE POSITION OF THE
CAFETERIA SERVICES IN THE BOULEVARD BUILDING. THERE IS NO QUESTION THAT
THE UNION OFFICIALS WERE DISSATISFIED WITH THE QUALITY OF THE SERVICE
AND VOICED THEIR COMPLAINTS VERY STRONGLY IN MEETINGS WITH THE OFFICIALS
OF THE RESPONDENT AND THE OFFICIALS OF ARA. IT IS EQUALLY CLEAR THAT
THE DIRECTOR OF THE CENTER WAS CONCERNED ABOUT PROVIDING SOME TYPE OF
FOOD SERVICE FOR THE EMPLOYEES, BOTH IN THE BOULEVARD BUILDING AND THE
STONITE BUILDING, BECAUSE OF THE INACCESSIBILITY OF EATING
ESTABLISHMENTS NEAR THE SERVICE CENTER. THERE IS NO INDICATION HERE
THAT THE DIRECTOR OF THE SERVICE CENTER WAS MOTIVATED BY ANY ANIMUS
TOWARD THE UNION OR THE UNION OFFICIALS. INDEED THE RECORD REFLECTS
MANY MEETINGS BETWEEN THE RESPONDENT'S OFFICIALS AND THE UNION
REPRESENTATIVES REGARDING THIS PROBLEM. THE FACT THAT THE RESPONDENT
DECIDED TO GO AHEAD WITH THE VENDING OPERATION AT THE STONITE BUILDING
AGAINST THE WISHES OF THE UNION DOES NOT CONSTITUTE, IN MY JUDGEMENT,
UNION ANIMUS. IT IS OBVIOUS THAT THE OVERRIDING CONCERN WAS TO PROVIDE
SOME TYPE OF FOOD SERVICES AND ARA WAS THE ONLY CONCESSIONAIRE
AVAILABLE. WHEN MORRILL SPOKE TO MRS. MCCAULEY IT WAS APPARENT THAT HE
WAS CONCERNED OVER THE COMPLAINTS BY THE ARA MANAGER THAT THE COFFEE AND
CAKE "PEACE OFFERING" WAS BEING BOYCOTTED AT THE URGING OF THE UNION.
THIS CONCERN WAS INTENSIFIED BY THE POSSIBILITY THAT ARA WOULD TERMINATE
ITS CONTRACT AT THE SERVICE CENTER AND LEAVE THAT FACILITY VOID OF ANY
FOOD SERVICES. TAKEN IN THIS CONTEXT, IT IS QUITE CLEAR THAT MORRILL
WAS HOLDING THE UNION OFFICIALS RESPONSIBLE IF THE EMPLOYEES WERE
WITHOUT ANY TYPE OF FOOD SERVICE. THERE WAS NO THREAT OF REPRISAL IN
HIS STATEMENT NOR WAS THERE ANY INDICATION THAT THERE WOULD BE ANY
RETALIATION AGAINST MRS. MCCAULEY OR ANY OTHER UNION OFFICIAL. IN MY
JUDGMENT, MORRILL WAS SIMPLY STATING THAT THE UNION WOULD HAVE TO BEAR
FULL RESPONSIBILITY IF ARA DECIDED THAT IT WOULD TERMINATE ITS CONTRACT
WITH THE SERVICE CENTER.
ACCORDINGLY, I FIND NOTHING IN THESE CIRCUMSTANCES TO INDICATE THAT
MORRILL WAS THREATENING MRS. MCCAULEY, EITHER PERSONALLY OR AS THE CHIEF
REPRESENTATIVE OF THE LOCAL CHAPTER OF THE UNION. I FURTHER FIND THAT
HIS STATEMENTS DID NOT INTERFERE WITH OR RESTRAIN MRS. MCCAULEY IN THE
EXERCISE OF ANY RIGHTS ASSURED HER UNDER THE EXECUTIVE ORDER. I SHALL,
THEREFORE, RECOMMEND DISMISSAL OF THIS PORTION OF THE COMPLAINT.
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
DATED: MAY 1, 1974
WASHINGTON, D.C.
/1/ THE NAME OF THE COMPLAINANTS APPEAR AS AMENDED AT THE HEARING.
/2/ AT THE HEARING COUNSEL FOR THE COMPLAINANT REQUESTED PERMISSION
TO WITHDRAW THE ALLEGATION THAT THE RESPONDENT VIOLATED SECTION
19(A)(2). PERMISSION WAS GRANTED AND THE ONLY ISSUES TRIED IN THIS
MATTER WERE THE ALLEGED VIOLATIONS OF SECTION 19(A)(1) AND 19(A)(6).
/3/ THE MAIN FACILITY HOUSING THE SERVICE CENTER IS REFERRED TO AS
THE BOULEVARD BUILDING AND IS APPROXIMATELY TWO MILES FROM THE STONITE
FACILITY.
/4/ A "LEAVE LETTER" REQUIRED THE EMPLOYEE TO PRODUCE MEDICAL OR
OTHER ACCEPTABLE EVIDENCE FOR ANY ABSENCE DUE TO SICKNESS, REGARDLESS OF
DURATION. THE FAILURE TO COMPLY WITH THE CONDITIONS OF THE LEAVE LETTER
WOULD RESULT IN THE EMPLOYEE BEING CHARGED WITH ABSENCE WITHOUT LEAVE
AND SUBJECT TO DISCIPLINARY ACTION. NORMALLY THE CONDITIONS OF THE
LEAVE LETTER WERE FOR A PERIOD OF SIX MONTHS, AT WHICH TIME THE
EMPLOYEE'S LEAVE RECORD WOULD BE REVIEWED.
/5/ MRS. MCCAULEY TESTIFIED THAT THE UNION OFFICIALS WERE CONCERNED
OVER THE RESPONDENT'S POLICY, OR LACK THEREOF, REGARDING THE GRANTING OF
LEAVE. IT WAS APPARENTLY THE RESPONSIBILITY OF THE SUPERVISOR TO
APPROVE OR DISAPPROVE LEAVE REQUESTS. ACCORDING TO MRS. MCCAULEY, EACH
SUPERVISOR APPLIED A DIFFERENT STANDARD. SHE TESTIFIED THAT SHE HAD
REPRESENTED 6 OR 8 EMPLOYEES AT FORMAL GRIEVANCES REGARDING LEAVE, AND
THAT THE UNION ATTORNEYS ASKED HER TO HOLD LEAVE GRIEVANCES IN ABEYANCE
UNTIL THE RESPONDENT DEVELOPED A FIRM POLICY.
/6/ FT. JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA,
A/SLMR NO. 242. IN THIS CASE THE ACTIVITY SENT THE EMPLOYEE A LETTER
REQUESTING A DOCTOR'S CERTIFICATE FOR CERTAIN LEAVE AND DEMANDED THE
DATE ON WHICH THE EMPLOYEE COULD BE EXPECTED TO RETURN TO WORK. THE
LETTER CONTAINED A WARNING THAT FAILURE TO COMPLY WITH THE REQUEST "MAY"
RESULT IN DISCIPLINARY ACTION. AT A SUBSEQUENT MEETING REGARDING THE
LETTER THE EMPLOYEE ACCOMPANIED BY HER UNION STEWARD INSISTED THAT THE
UNION PRESIDENT BE ALLOWED TO ATTEND. MANAGEMENT DENIED THIS RIGHT AND
THE EMPLOYEE AND STEWARD REFUSED TO DISCUSS THE MATTER. THE ASSISTANT
SECRETARY HELD THIS TO BE A FORMAL DISCUSSION WITHIN THE MEANING OF
SECTION 10(E) AND FOUND THAT THE UNION PRESIDENT SHOULD HAVE BEEN
AFFORDED AN OPPORTUNITY TO ATTEND. THEREFORE HE FOUND THAT THE ACTIVITY
VIOLATED SECTION 19(A)(6).
/7/ U.S. DEPARTMENT OF ARMY, TRANSPORTATION MOTOR POOL, FORT
WAINWRIGHT, ALASKA, A/SLMR NO. 278. THIS CASE INVOLVED MANAGEMENT
REFUSING TO PERMIT THE EXCLUSIVE REPRESENTATIVE TO BE PRESENT AT A
MEETING HELD BY MANAGEMENT FOR THE PURPOSES OF DISCUSSING THE
IMPLEMENTATION OF A CIVIL SERVICE COMMISSION HEARING EXAMINER'S
RECOMMENDATION IN AN EEO MATTER. THE ASSISTANT SECRETARY FOUND THAT THE
MEETING CONSTITUTED A FORMAL DISCUSSION WHICH HAD RAMIFICATIONS ON THE
UNIT EMPLOYEES CONCERNING PERSONNEL PRACTICES AND POLICIES AND GENERAL
WORKING CONDITIONS. THEREFORE, THE FAILURE TO ALLOW THE LABOR
ORGANIZATION TO BE PRESENT VIOLATED THE RIGHT ACCORDED BY SECTION 10(E)
AND CONSTITUTED A VIOLATION OF SECTION 19(A)(6).
/8/ SECTION 10(E) 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 THE
EMPLOYEES IN THE UNIT."
/9/ ARA OPERATES THE CAFETERIA UNDER CONTRACT WITH THE GENERAL
SERVICES ADMINISTRATION (GSA). IT IS CLEAR FROM THE EVIDENCE, HOWEVER,
THAT THE RESPONDENT HAD CONSIDERABLE INPUT IN THE NEGOTIATIONS BETWEEN
GSA AND ARA FOR THE TYPE OF FOOD SERVICES IT WANTED PROVIDED FOR ITS
EMPLOYEES.
/10/ ALTHOUGH NOT ENTIRELY CLEAR IN THE RECORD, IT IS APPARENT THAT
THE EQUIPMENT WAS PROVIDED BY THE STATE AGENCY FOR THE BLIND.
/11/ O'SHOUGHNESSY WAS AN INTERNATIONAL VICE PRESIDENT OF THE UNION
AND AN EMPLOYEE OF THE RESPONDENT. ALTHOUGH HE WAS PRESENT AT SEVERAL
MEETINGS WITH MANAGEMENT, HE DID NOT TESTIFY IN THESE PROCEEDINGS.
/12/ MORRILL DENIED MAKING SUCH A STATEMENT DURING THE MEETING. I DO
NOT FIND IT NECESSARY, HOWEVER, TO RESOLVE THIS MINOR CONFLICT IN THE
TESTIMONY IN ORDER TO DECIDE THE ISSUE HERE.
4 A/SLMR 420; P. 509; CASE NO. 40-4790(CO); AUGUST 1, 1974.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
A/SLMR NO. 420
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY JERRY
L. NORRIS (COMPLAINANT) ALLEGING VIOLATION OF SECTION 19(B)(1) AND (3)
OF THE ORDER. THE COMPLAINT ALLEGED THAT THE RESPONDENT LABOR
ORGANIZATION, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987,
VIOLATED THE ORDER WHEN ON FEBRUARY 15, 1973, AGENTS OF THE RESPONDENT
CONFRONTED THE COMPLAINANT ON TWO OCCASIONS AND REQUESTED THE
COMPLAINANT TO CEASE PASSING OUT DUES REVOCATION FORMS. THE COMPLAINT
ALLEGES FURTHER THAT ONE OF THE RESPONDENT'S AGENTS THREATENED TO
"BLACKBALL" THE COMPLAINANT IF HE ATTEMPTED TO REJOIN THE UNION AND THAT
HIS WORK PERFORMANCE WAS IMPEDED BY THIS CONFRONTATION.
THE COMPLAINANT, NORRIS, WAS A SHEET METAL MECHANIC WHO, AT THE TIME
IN QUESTION, ALSO SERVED AS AN ALTERNATE TO THE SUPERVISOR OF HIS
SUB-UNIT. ON FEBRUARY 14, 1973, NORRIS EXECUTED A FORM WHICH SERVED TO
REVOKE HIS VOLUNTARY DUES CHECKOFF AND, ON THE SAME DATE, DURING DUTY
HOURS, PASSED OUT COPIES OF THE FORM TO EMPLOYEES IN HIS UNIT. HOWEVER,
THERE WAS NO EVIDENCE NORRIS HAD FORMALLY RESIGNED FROM THE UNION AT THE
TIME OF THE INCIDENTS IN QUESTION. THE NEXT DAY, THREE OF THE
RESPONDENT'S STEWARDS APPROACHED NORRIS AND REQUESTED THAT HE STOP
PASSING OUT COPIES OF THE REVOCATION FORM, AND ONE OF THE STEWARDS TOLD
NORRIS HE WOULD "BLACKBALL" NORRIS IF NORRIS SHOULD LATER SEEK TO REJOIN
THE UNION. AT A SECOND MEETING THE SAME DAY, THE STEWARDS AND A
REPRESENTATIVE OF THE RESPONDENT AGAIN SOUGHT TO HAVE NORRIS DISCONTINUE
PASSING OUT THE DUES REVOCATION FORMS.
THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT NORRIS WAS NOT A SUPERVISOR WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER, AND THAT THE RESPONDENT DID NOT VIOLATE
SECTION 19(B)(3) OF THE ORDER BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO
ESTABLISH THAT THE ACTIONS OF RESPONDENT'S AGENTS WERE FOR THE PURPOSE
OF HINDERING OR IMPEDING NORRIS' WORK PERFORMANCE.
THE ASSISTANT SECRETARY FOUND ALSO THAT THE RESPONDENT'S OVERALL
CONDUCT IN ATTEMPTING TO STOP NORRIS FROM PASSING OUT THE DUES
REVOCATION FORMS DID NOT VIOLATE SECTION 19(B)(1) OF THE ORDER. IN THIS
REGARD, HE NOTED THAT A LABOR ORGANIZATION IS ENTITLED TO PROTECT ITSELF
FROM THE ACTS OF ITS MEMBERS WHICH THREATEN IS CONTINUED EXISTENCE, AND
THAT NORRIS' ACTION CONSTITUTED SUCH AN ACT. THE ASSISTANT SECRETARY
FURTHER NOTED THAT THE RESPONDENT'S RIGHT TO PROTECT ITSELF FROM SUCH
ACTS WAS UNRELATED TO A SPECIFIC TIME FRAME AND, THEREFORE, CONTRARY TO
THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
HELD IT WAS IMMATERIAL WHETHER OR NOT NORRIS DISTRIBUTED THE DUES
REVOCATION FORM DURING WORKTIME AND WHETHER HIS ACTIONS CONTRAVENED
SECTION 20 OF THE ORDER. IN ADDITION, THE ASSISTANT SECRETARY FOUND,
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT IN THE CIRCUMSTANCES OF
THE CASE, THE STATEMENT BY ONE OF THE STEWARDS THAT HE WOULD "BLACKBALL"
NORRIS IF HE SOUGHT TO REJOIN THE UNION WAS NOT VIOLATIVE OF THE ORDER.
HAVING FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTION 19(B)(1) AND
(3) OF THE ORDER, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
AND
JERRY L. NORRIS
ON APRIL 8, 1974, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD VIOLATED SECTION 19(B)(1) OF EXECUTIVE ORDER
11491, AS AMENDED, AND RECOMMENDING, AMONG OTHER THINGS, 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 CONDUCT BY THE RESPONDENT NOT TO BE VIOLATIVE OF THE ORDER.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS AND 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, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE FINDINGS, /1/ CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE
LAW JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH. /2/
THE COMPLAINT IN THE INSTANT CASE ALLEGED THAT THE RESPONDENT
VIOLATED SECTION 19(B)(1) AND (3) OF THE ORDER WHEN ON FEBRUARY 15,
1973, AGENTS OF THE RESPONDENT CONFRONTED THE COMPLAINANT ON TWO
OCCASIONS AND REQUESTED THE LATTER TO CEASE PASSING OUT DUES REVOCATION
FORMS. IT IS ALLEGED FURTHER THAT A REPRESENTATIVE OF THE RESPONDENT
THREATENED TO "BLACKBALL" THE COMPLAINANT IF HE ATTEMPTED TO REJOIN THE
UNION AND THAT HIS WORK PERFORMANCE WAS IMPEDED BY THIS CONFRONTATION.
THE ESSENTIAL FACTS OF THE CASE, WHICH ARE NOT IN DISPUTE, 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 COMPLAINANT, JERRY NORRIS, A SHEET METAL MECHANIC OF THE U.S.
AIR FORCE WARNER ROBINS MATERIAL AREA AT ROBINS AIR FORCE BASE, GEORGIA,
AT THE TIME IN QUESTION ALSO SERVED AS AN ALTERNATE TO THE SUPERVISOR OF
HIS SUB-UNIT. THE RESPONDENT IS THE EXCLUSIVE REPRESENTATIVE FOR FIVE
BARGAINING UNITS AT THE WARNER ROBINS MATERIAL AREA. ON FEBRUARY 14,
1973, NORRIS EXECUTED A FORM WHICH SERVED TO REVOKE HIS VOLUNTARY DUES
CHECKOFF /3/ AND, ON THE SAME DATE, DURING DUTY HOURS, PASSED OUT COPIES
OF THE FORM TO EMPLOYEES IN HIS UNIT. THE FOLLOWING DAY, THREE OF THE
RESPONDENT'S STEWARDS-LASSITER, SHEPHARD AND HANEY,-APPROACHED NORRIS,
AND LASSITER REQUESTED THAT HE STOP PASSING OUT COPIES OF THE REVOCATION
FROM CLAIMING THAT SUCH ACTIVITY VIOLATED EXECUTIVE ORDER 11491. NORRIS
STATED THAT HE DISAGREED AND, IN THE DISCUSSION WHICH FOLLOWED, LASSITER
TOLD NORRIS HE WOULD "BLACKBALL" NORRIS IF HE LATER ATTEMPTED TO REJOIN
THE UNION. AT A SUBSEQUENT MEETING WITH NORRIS, THE STEWARDS AND BOBBY
HARNAGE (AN EMPLOYEE OF THE RESPONDENT) AGAIN IMPORTUNED HIM TO
DISCONTINUE PASSING OUT THE DUES REVOCATION FORMS.
THE ADMINISTRATIVE LAW JUDGE FOUND, AND I AGREE, THAT UNDER THE
CIRCUMSTANCES OF THIS CASE NORRIS WAS NOT A SUPERVISOR WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER. HE FOUND FURTHER THAT NORRIS'
DISTRIBUTION OF THE DUES REVOCATION FORMS WAS CONDUCT PROTECTED BY
SECTION 1(A) OF THE ORDER, BUT THAT SUCH CONDUCT LOST ITS PROTECTED
STATUS BECAUSE IT OCCURRED DURING DUTY HOURS, WHICH, IN THE
ADMINISTRATIVE LAW JUDGE'S VIEW, CONSTITUTED A VIOLATION OF SECTION 20
OF THE ORDER. UNDER THESE CIRCUMSTANCES, HE CONCLUDED THAT, WITH THE
EXCEPTION OF LASSITER'S STATEMENT THAT HE WOULD "BLACKBALL" NORRIS IF HE
LATER ATTEMPTED TO REJOIN THE UNION, THE RESPONDENT'S CONDUCT WAS NOT
VIOLATIVE OF SECTION 19(B)(1) OF THE ORDER. MOREOVER, THE
ADMINISTRATIVE LAW JUDGE FOUND, AND I AGREE, THAT THE RESPONDENT DID NOT
VIOLATE SECTION 19(B)(3) OF THE ORDER BECAUSE THERE WAS INSUFFICIENT
EVIDENCE TO ESTABLISH THAT THE ACTIONS OF THE RESPONDENT'S AGENTS WERE
FOR THE PURPOSE OF HINDERING OR IMPEDING NORRIS' WORK PERFORMANCE.
I CONCUR IN THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE
RESPONDENT'S OVERALL CONDUCT IN ATTEMPTING TO STOP NORRIS' DISTRIBUTION
OF DUES REVOCATION FORMS DID NOT CONSTITUTE A VIOLATION OF SECTION
19(B)(1) OF THE ORDER. HOWEVER, CONTRARY TO THE ADMINISTRATIVE LAW
JUDGE, I FIND ALSO THAT LASSITER'S "BLACKBALL" STATEMENT WAS NOT, IN THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, VIOLATIVE OF SECTION 19(B)(1) AND
THAT THE PROVISIONS OF SECTION 20 OF THE ORDER ARE NOT RELEVANT IN
REACHING THE DISPOSITION HEREIN.
IN MY VIEW, A LABOR ORGANIZATION IS ENTITLED TO PROTECT ITSELF FROM
THOSE ACTS OF ITS MEMBERS /4/ WHICH THREATEN ITS CONTINUED EXISTENCE.
/5/ IN THIS REGARD, THE DISTRIBUTION OF DUES REVOCATION NOTICES
CONSTITUTES SUCH AN ACT AND WAS OF LEGITIMATE CONCERN TO THE RESPONDENT.
THUS, THE RESPONDENT'S EFFORT TO HAVE NORRIS DISCONTINUE HIS ACTION OF
DISTRIBUTING DUES REVOCATION CARDS WAS IN FURTHERANCE OF ITS PROPER
INTERESTS AND WAS CONSISTENT WITH ITS RIGHTS UNDER THE ORDER. /6/
MOREOVER, I FIND, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT
LASSITER'S ISOLATED STATEMENT CONCERNING HIS INTENT TO "BLACKBALL"
NORRIS IN THE FUTURE IF HE ATTEMPTED TO REJOIN THE UNION WAS NOT
IMPROPER UNDER THE CIRCUMSTANCES OF THIS CASE. IN THIS CONNECTION, IT
WAS NOTED THAT THE STATEMENT WAS MADE DURING THE HEIGHT OF A HEATED
CONFRONTATION BETWEEN NORRIS AND THE RESPONDENT'S AGENTS, WAS MADE IN
ONLY ONE INSTANCE BY ONE OF THE THREE AGENTS OF THE RESPONDENT PRESENT,
ENTAILED NO JOB RELATED THREAT OR THREAT OF BODILY INJURY AND, IN
EFFECT, WAS A STATEMENT BY ONE INDIVIDUAL MEMBER CONCERNING HIS
INTENTIONS IF NORRIS IN THE FUTURE SOUGHT TO REENTER THE UNION. /7/
ACCORDINGLY, AS I FIND THAT THE RESPONDENT'S CONDUCT HEREIN DID NOT
VIOLATE SECTION 19(B)(1) AND (3) OF THE ORDER, I SHALL ORDER THAT THE
INSTANT COMPLAINT BE DISMISSED IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-4790(CO) BE,
AND IT IS HEREBY, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 1, 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.
/2/ ON PAGE 11 OF HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE
LAW JUDGE INADVERTENTLY REFERRED TO "AGENCY MANAGEMENT" RATHER THAN TO
"A LABOR ORGANIZATION," IN SETTING FORTH THE PROVISIONS OF SECTION
19(B)(1) OF THE ORDER. THIS INADVERTENCE IS HEREBY CORRECTED.
/3/ THERE WAS NO EVIDENCE NORRIS HAD FORMALLY RESIGNED FROM THE UNION
AT THE TIME OF THE INCIDENTS IN QUESTION.
/4/ EVEN IF NORRIS WAS NO LONGER A MEMBER OF THE UNION, AS HE CLAIMS,
THE REQUEST FOR HIM TO DISCONTINUE HIS ACTIONS DID NOT, IN MY OPINION,
VIOLATE SECTION 19(B)(1) OR (3) OF THE ORDER IN THE ABSENCE OF EVIDENCE
OF ANY THREATS TO HIS JOB OR THREATS OF BODILY INJURY.
/5/ IN MY VIEW, A LABOR ORGANIZATION MAY, PURSUANT TO SECTION 19(C)
OF THE ORDER, SUBJECT ITS MEMBERS TO DISCIPLINE, INCLUDING, IN
APPROPRIATE CASES, EXPULSION, TO PROTECT ITS CONTINUED EXISTENCE, IF
SUCH DISCIPLINE IS METED OUT IN ACCORDANCE WITH PROCEDURES UNDER THE
LABOR ORGANIZATION'S CONSTITUTION OR BY-LAWS WHICH CONFORM TO THE
REQUIREMENTS OF THE ORDER. CF., LOCAL 1858, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES (REDSTONE ARSENAL, ALABAMA), A/SLMR NO. 275, AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1650, BEEVILLE, TEXAS
(NAVAL AIR STATION, CHASE FIELD, BEEVILE, TEXAS, ET AL., A/SLMR NO. 294.
/6/ AS THE PROTECTING OF THE RESPONDENT'S LEGITIMATE INTEREST, NOTED
ABOVE, IS UNRELATED TO A SPECIFIC TIME FRAME, IT IS IMMATERIAL WHETHER
OR NOT NORRIS DISTRIBUTED THE DUES REVOCATION FORMS DURING WORKTIME AND
WHETHER HIS CONDUCT CONTRAVENED THE PROVISIONS OF SECTION 20 OF THE
ORDER. ACCORDINGLY, I FIND IT UNNECESSARY TO PASS UPON THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS WITH RESPECT TO THE OBLIGATION OF
AGENCY MANAGEMENT AND LABOR ORGANIZATIONS UNDER SECTION 20.
/7/ WHETHER THE RESPONDENT COULD, IN FACT, PREVENT NORRIS FROM
REJOINING THE UNION IN THE FUTURE WOULD, OF COURSE, DEPEND ON WHETHER
SUCH EXCLUSION WAS CONSISTENT WITH THE REQUIREMENTS OF SECTION 19(C) OF
THE ORDER. SEE, IN THIS REGARD, THE ASSISTANT SECRETARY'S DECISIONS
CITED ABOVE AT FOOTNOTE 5.
IN THE MATTER OF
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 987
AND
JERRY L. NORRIS
BOBBY L. HARNAGE
SPECIAL ASSISTANT
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 987
P.O. BOX 1079
WARNER ROBINS, GEORGIA 31093
LEWIS M. SCAGGS
P.O. BOX 205
WARNER ROBINS, GEORGIA 31093
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
THIS CASE CONCERNS AN UNFAIR LABOR PRACTICE ALLEGEDLY COMMITTED BY
RESPONDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987 (THE
UNION) AGAINST COMPLAINANT, JERRY L. NORRIS. BY COMPLAINT FILED APRIL
16, 1973, /1/ MR. NORRIS CHARGES THAT THE UNION VIOLATED SECTION
19(B)(1) AND (3) OF EXECUTIVE ORDER 11491, AS AMENDED.
PURSUANT TO AN ORDER RESCHEDULING HEARING, A HEARING ON THE COMPLAINT
WAS HELD ON SEPTEMBER 25, 1973, IN MACON, GEORGIA. BOTH PARTIES WERE
REPRESENTED AND WERE ALLOWED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. THEREAFTER, THE PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
BASED UPON MY REVIEW OF THE ENTIRE RECORD IN THIS CASE, AND FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS:
JERRY NORRIS, THE COMPLAINANT HEREIN, WAS TOLD BY A SUPERVISOR THAT
THE UNION WAS IN SOME WAY RESPONSIBLE FOR NORRIS' FAILURE TO RECEIVE A
PROMOTION. THIS MADE NORRIS UNHAPPY AND SO HE DECIDED TO RESIGN FROM
THE UNION. ON FEBRUARY 14, HE ALSO EXECUTED STANDARD FORM 1188,
ENTITLED "REVOCATION OF VOLUNTARY AUTHORIZATION FOR ALLOTMENT OF
COMPENSATION FOR PAYMENT OF EMPLOYEE ORGANIZATION DUES." THE FOLLOWING
DAY HE DISTRIBUTED THIS FORM TO A NUMBER OF HIS FELLOW EMPLOYEES. THE
DISTRIBUTION TOOK PLACE DURING WORKING HOURS AND AT THE JOB SITES OF THE
EMPLOYEES INVOLVED.
WORD OF COMPLAINANT'S ACTIVITY REACHED THE UNION VERY QUICKLY AND
REPRESENTATIVES OF THE UNION WERE DISPATCHED TO COMPLAINANT'S WORK SITE
THE FOLLOWING MORNING. THE PURPOSE OF THEIR MISSION IS NOT IN DISPUTE.
THEY BELIEVED THAT NORRIS WAS ENGAGING IN IMPROPER AND UNLAWFUL ACTIVITY
AND THEY TOLD HIM SO. THEY ALSO ASKED HIM TO CEASE SUCH ACTIVITIES.
TO SAY THE LEAST, NORRIS WAS UNHAPPY AND UPSET ABOUT THIS
CONFRONTATION WITH THE UNION REPRESENTATIVES. HE DIDN'T LIKE BEING TOLD
BY THE UNION THAT HE WAS VIOLATING THE LAW AND HE DIDN'T THINK THEY
SHOULD BE INTERRUPTING HIM WHILE CARRYING OUT HIS DUTIES AS AN ACTING
SUPERVISOR. BY HIS OWN WORDS, NORRIS "BLEW HIS COOL." AS A RESULT, THE
DISCUSSION BECAME RATHER HEATED AND THE PARTICIPANTS FOUND IT NECESSARY
TO RAISE THEIR VOICES TO BE HEARD. TEMPERS WERE SHORT AND THE
DISCUSSION DID NOT END ON AN AMICABLE CHORD. IT IS THIS CONDUCT BY THE
UNION REPRESENTATIVES ON THE MORNING OF FEBRUARY 15, 1973 AND CERTAIN
STATEMENTS ALLEGEDLY MADE BY THEM TO NORRIS THAT FORM THE BASIS FOR THIS
PROCEEDING.
THE ISSUES TO BE RESOLVED ARE AS FOLLOWS:
(1) WHETHER NORRIS WAS A SUPERVISOR WITHIN THE MEANING OF SECTION
2(C) OF THE ORDER.
(2) WHETHER THE DISTRIBUTION OF UNION DUES CHECKOFF REVOCATION FORMS
BY AN EMPLOYEE IS A RIGHT PROTECTED BY SECTION 1(A) OF EXECUTIVE ORDER
11491, AS AMENDED.
(3) WHETHER THE DISTRIBUTION OF UNION DUES CHECKOFF REVOCATION FORMS
BY AN EMPLOYEE DURING DUTY HOURS TO EMPLOYEES AT THEIR OFFICIAL WORK
STATIONS IS AN ACTIVITY PROHIBITED BY SECTION 20 OF THE ORDER. IF SO,
WHETHER A RIGHT PROTECTED BY SECTION 1(A) LOSES ITS PROTECTED STATUS IF
EXERCISED IN VIOLATION OF SECTION 20 OF THE ORDER.
(4) WHETHER THE UNION REPRESENTATIVES' CONDUCT-- IN ASKING NORRIS TO
CEASE HIS ACTIVITIES-- WAS A VIOLATION OF SECTION 19(B)(1) AND (3).
(5) WHETHER A STATEMENT BY A UNION REPRESENTATIVE-- THAT HE WOULD
"BLACKBALL" NORRIS SHOULD HE EVER ATTEMPT TO REJOIN THE UNION-- IS A
VIOLATION OF SECTION 19(B)(1) OF THE ORDER.
1. THE RESPONDENT UNION IS THE EXCLUSIVE REPRESENTATIVE FOR FIVE
BARGAINING UNITS OF EMPLOYEES ORGANIZED AT THE U.S. AIR FORCE WARNER
ROBINS AIR MATERIAL AREA (THE ACTIVITY) LOCATED AT ROBINS AIR FORCE
BASE, GEORGIA.
2. COMPLAINANT NORRIS IS EMPLOYED WITH THE ACTIVITY AS AN AIRCRAFT
SHEET METAL MECHANIC, WG-10 AND AT THE TIME OF THE ALLEGED UNFAIR LABOR
PRACTICE, WAS A MEMBER IN GOOD STANDING IN THE LARGEST OF THE UNITS
REPRESENTED BY THE UNION. THIS "BASEWIDE UNIT" INCLUDED ALL
NONPROFESSIONAL, NONSUPERVISORY GENERAL SCHEDULE AND WAGE GRADE
EMPLOYEES AT THE ACTIVITY, EXCLUDING FIRE FIGHTERS.
3. ACTIVITY MANAGEMENT HAD DIVIDED THE "BASEWIDE UNIT" OF WHICH
NORRIS WAS A MEMBER INTO SEVERAL DIRECTORATES BY FUNCTION. EACH
DIRECTORATE WAS IN TURN DIVIDED INTO VARIOUS LEVELS OF SUPERVISION. IN
DESCENDING ORDER OF AUTHORITY THESE LEVELS WERE: DIVISION, BRANCH,
SECTION, UNIT AND SUB-UNIT. MR. NORRIS' POSITION DESCRIPTIONS /2/
DETAILS HIS PLACE WITHIN THE ACTIVITY'S ORGANIZATION AS FOLLOWS:
DIRECTORATE OF MAINTENANCE, MANUFACTURE AND REPAIR DIVISION, PRODUCTION
BRANCH, SHEET METAL SECTION, METAL BOND UNIT. THE POSITION DESCRIPTION
STATES THE PURPOSES OF THE AIRCRAFT SHEET METAL MECHANIC POSITION AS
BEING "TO PERFORM GENERAL AIRCRAFT METAL WORK INCLUDING MAJOR STRUCTURAL
REPAIRS AND MODIFICATIONS." THE POSITION ENTAILS NO ADMINISTRATIVE OR
SUPERVISORY DUTIES OR RESPONSIBILITIES.
4. IN ADDITION TO HIS DUTIES AS A SHEET METAL MECHANIC MR. NORRIS
SERVED, DURING THE TIME IN QUESTION, AS THE ALTERNATE TO MR. BERRY,
SUPERVISOR FOR NORRIS' SUB-UNIT. THIS DESIGNATION AUTHORIZED NORRIS, IN
BERRY'S ABSENCE, TO ASSIGN WORK TO EMPLOYEES IN THE SUB-UNIT, TO GIVE
JOB ASSISTANCE WHEN REQUIRED, TO ROUTE WORK ITEMS TO OTHER SHOPS IN THE
ACTIVITY AND TO COMPLETE THE PAPERWORK REQUIRED FOR SUCH TRANSFERS.
WHILE ACTING AS MR. BERRY'S ALTERNATE NORRIS HAD NO AUTHORITY WITH
REGARD TO HIRINGS OR LAYOFFS, PROMOTIONS, SUSPENSIONS, DISCIPLINE,
GRIEVANCE ADJUSTMENTS OR THE GRANTING OF LEAVE TIME.
5. ON FEBRUARY 14 NORRIS EXECUTED A STANDARD FORM 1188, ENTITLED
"REVOCATION OF VOLUNTARY AUTHORIZATION FOR ALLOTMENT OF COMPENSATION FOR
PAYMENT OF EMPLOYEE ORGANIZATION DUES." /3/ EXECUTION OF THIS FORM HAD
THE EFFECT OF TERMINATING THE UNION DUES CHECKOFF FROM NORRIS' PAYCHECK
EFFECTIVE MARCH 1, 1973. ACCORDING TO NORRIS, HIS FELLOW EMPLOYEES WERE
AWARE OF HIS UNHAPPINESS WITH THE UNION. RESPONDENT, IN ITS BRIEF,
POINTS OUT THAT NORRIS WAS NOT MOTIVATED SOLELY, IF AT ALL, BY A DESIRE
TO ASSIST HIS FELLOW EMPLOYES BUT, RATHER, WAS MOTIVATED BY A SPIRIT OF
VINDICTIVENESS. IN THIS REGARD, THE TESTIMONY OF NORRIS IS THAT HE WAS
ONCE TOLD BY HIS UNIT SUPERVISOR, JOHN WORLEY, THAT UNION DISFAVOR
PREVENTED HIM FROM RECEIVING A PROMOTION. ALSO, SHEPHERD TESTIFIED THAT
NORRIS REFUSED TO DISCONTINUE PASSING OUT THE FORM 1188'S BECAUSE THE
UNION HAD HELPED HIM OUT AND HE WAS GOING TO "HELP THEM OUT." WHILE I
FIND MERIT IN RESPONDENT'S CONTENTION, I DON'T BELIEVE NORRIS' MOTIVE,
OR MOTIVES, IN ENGAGING IN THIS PARTICULAR ACTIVITY IS RELEVANT TO A
DISPOSITION OF THIS MATTER.
6. ON FEBRUARY 14, 1973, NORRIS WAS ACTING AS BERRY'S ALTERNATE
BECAUSE OF THE LATTER'S ABSENCE FROM THE WORK AREA. THERE WERE
APPROXIMATELY 16 OR 17 EMPLOYEES WORKING WITH NORRIS THAT DAY IN THE
LEADING EDGE SUB-UNIT OF THE METAL BAND UNIT. ACCORDING TO NORRIS,
SEVERAL EMPLOYEES IN THE SUB-UNIT HAD PREVIOUSLY ASKED HIM IF HE WOULD
SECURE FOR THEM COPIES OF STANDARD FORM 1188. NORRIS HAD IN HIS
POSSESSION 8 OR 9 COPIES OF THE FORM AND AT APPROXIMATELY 8:00 OR 8:30
A.M. LEFT HIS ASSIGNED DUTIES AND APPROACHED OTHER EMPLOYEES IN THE
SUB-UNIT ASKING THEM IF THEY HAD REQUESTED OR NOW WANTED A COPY OF THE
FORM TO STOP THE DEDUCTION OF UNION DUES FROM THEIR PAYCHECKS. NORRIS
APPROACHED THE 16 OR 17 EMPLOYEES IN THE SUB-UNIT AND SEVERAL OTHER
EMPLOYEES IN ANOTHER AREA OF THE METAL BOND UNIT. ALTOGETHER NORRIS
SPENT APPROXIMATELY 15 MINUTES HANDING OUT THE 8 OR 9 COPIES OF STANDARD
FORM 1188.
7. SHORTLY AFTER NORRIS HAD COMPLETED HIS DISTRIBUTION OF THE FORMS
HIS ACTIVITIES WERE REPORTED TO GERALD LASSITER, DIVISION STEWARD OF THE
MANUFACTURE AND REPAIR DIVISION. LASSITER WENT TO THE METAL BOND AREA
AND CONFERRED WITH DAVID SHEPHERD, THE UNION STEWARD WITH DIRECT
JURISDICTION OVER THE WORK AREA INVOLVED. THE FOLLOWING MORNING, ON
FEBRUARY 15, AT APPROXIMATELY 9:00 A.M. LASSITER AND SHEPHERD,
ACCOMPANIED BY JESSIE HANEY, ANOTHER UNION STEWARD, WENT TO THE LEADING
EDGE SUB-UNIT AREA TO QUESTION NORRIS REGARDING HIS REPORTED ACTIVITIES.
THE THREE UNION STEWARDS FOUND NORRIS OUTSIDE THE SUB-UNIT OFFICE
DISCUSSING A WORK PROBLEM WITH JOSEPH E. WILLIAMS AND JACK HOWELL,
EMPLOYEES FROM ANOTHER WORK AREA IN THE FACILITY.
8. THE EVIDENCE REGARDING WHAT TRANSPIRED AT THIS FIRST MEETING IS
IN CONFLICT. NORRIS TESTIFIED THAT LASSITER APPROACHED HIM AND ASKED
HIM TO STOP PASSING OUT COPIES OF FORM 1188, SAYING SUCH ACTIVITY
VIOLATED EXECUTIVE ORDER 11491. NORRIS RECOLLECTS THAT HE INFORMED THE
UNION OFFICERS THAT HE DID NOT BELIEVE HE HAD DONE ANYTHING WRONG.
THERE THEN FOLLOWED A HEATED EXCHANGE DURING WHICH NORRIS CLAIMED
LASSITER THREATENED TO BLACKBALL HIM IF HE ATTEMPTED TO REJOIN THE UNION
AND PROMISED TO DO EVERYTHING HE COULD TO KEEP NORRIS OUT OF THE UNION.
WILLIAMS, WHO OVERHEARD PART OF THE CONVERSATION, TESTIFIED THAT HE
RECALLED HEARING THE WORD "BLACKBALL" USED BUT DID NOT KNOW IN WHAT
CONTEXT. SHEPHERD, WHO WAS PRESENT DURING THE EXCHANGE, TESTIFIED THAT
NO THREATS WERE MADE AND THAT THE WORD "BLACKBALL" WAS NEVER USED.
NORRIS' TESTIMONY, WHICH I CREDIT, WAS CORROBORATED BY A NEUTRAL
WITNESS, WILLIAMS. FURTHERMORE, LASSITER FAILED TO TESTIFY ABOUT THIS
INCIDENT ALTHOUGH HE WAS PRESENT AT THE HEARING. ON THE BASIS OF THE
FOREGOING, I FIND THAT LASSITER TOLD NORRIS THAT HE WOULD "BLACKBALL"
HIM IF HE LEFT THE UNION AND LATER TRIED TO REJOIN.
9. THIS CONFRONTATION BETWEEN NORRIS AND THE UNION STEWARDS LASTED
ONLY FIVE OR SIX MINUTES AND ENDED WITH TEMPERS HIGH AND WITHOUT AND
RESOLUTION OF THE DIFFERENCES AMONG THE PARTICIPANTS. AFTER THE
STEWARDS LEFT THE METAL BOND UNIT LASSITER WENT TO THE UNION OFFICE AND
RELATED THE SUBSTANCE OF THE MEETING WITH NORRIS TO JOHN BROOKS, THE
UNION PRESIDENT. BROOKS IMMEDIATELY DISPATCHED BOBBY HARNAGE, AN
EMPLOYEE OF THE UNION (WHO ALSO REPRESENTED RESPONDENT AT THE HEARING),
TO GO TO NORRIS AND INVESTIGATE FURTHER HIS ACTIVITIES OF THE PRECEDING
MORNING.
10. ACCORDING TO BROOKS, HIS CONCERN OVER NORRIS' ACTIONS WAS
TWOFOLD: FIRSTLY, HE WAS OF THE OPINION THAT NORRIS' POSITION AS
BERRY'S ALTERNATE MADE HIM A SUPERVISOR UNDER THE TERMS OF THE EXECUTIVE
ORDER AND THEREFORE HIS DISTRIBUTION OF TERMINATION OF PAYROLL DEDUCTION
FORMS WAS AN UNLAWFUL INTERFERENCE BY THE ACTIVITY INTO UNION AFFAIRS;
SECONDLY, BROOKS INTERPRETED A PROVISION OF THE NEGOTIATED AGREEMENT
BETWEEN THE ACTIVITY AND UNION TO PERMIT EMPLOYEES TO SECURE TERMINATION
FORMS ONLY FROM THE LABOR RELATIONS OFFICER OF THE ACTIVITY, NOT FROM AN
INDIVIDUAL SUCH AS NORRIS.
11. HARNAGE, SHEPHERD, AND LASSITER RETURNED TO THE METAL BOND UNIT
AREA AT APPROXIMATELY 10:00 A.M. THEY FOUND NORRIS OUTSIDE THE SUB-UNIT
OFFICE AND THERE THEY CONTINUED IN A HEATED FASHION THE EARLIER
DISCUSSION REGARDING NORRIS' DISTRIBUTION OF THE STANDARD FORM 1188.
DARWIN L. PEACOCK, METAL BOND UNIT CHIEF AND NORRIS' SUPERVISOR, WAS
IN THE LEADING EDGE AREA OF THE SHOP AND WAS ATTRACTED TO THE SUB-UNIT
OFFICE AREA BY THE LOUD CONVERSATION. AT THAT TIME HARNAGE TOLD NORRIS
THAT HE INTENDED TO FILE AN UNFAIR LABOR PRACTICE CHARGE AGAINST NORRIS
BECAUSE OF HIS ACTIVITIES EARLIER THAT MORNING. ACCORDING TO PEACOCK,
HE SUGGESTED THAT THEY CONTINUE THEIR DISCUSSIONS INSIDE THE SUB-UNIT
OFFICE. BOTH NORRIS AND PEACOCK TESTIFIED THAT HARNAGE BERATED PEACOCK
AND ACCUSED HIM OF FAILING IN HIS DUTIES AS A SUPERVISOR BY ALLOWING
NORRIS TO PASS OUT THE TERMINATION FORMS ON PAID TIME. THE MEETING
ENDED WITH HARNAGE AGAIN TELLING NORRIS THAT HE INTENDED TO FILE AN
UNFAIR LABOR PRACTICE CHARGE.
12. A COMPLAINT BASED ON MR. NORRIS' ACTIVITIES WAS IN FACT FILED BY
THE UNION AGAINST THE ACTIVITY IN CASE NO. 40-4889(CA), BUT WAS
WITHDRAWN PRIOR TO HEARING.
A. THE ALLEGED SUPERVISORY STATUS OF NORRIS
TO PROPERLY ASSESS THE SIGNIFICANCE OF THE UNION AGENT'S ACTIONS IT
IS FIRST NECESSARY TO CONSIDER NORRIS' EMPLOYMENT STATUS ON THE DATE OF
THE OCCURRENCE. SECTION 2(B) OF EXECUTIVE ORDER 11491, AS AMENDED,
DEFINES "EMPLOYEE" FOR THE PURPOSES OF THE ORDER AS AN EMPLOYEE OF AN
AGENCY OR A NON-APPROPRIATED FUND INSTRUMENTALITY OF THE UNITED STATES,
EXCLUDING SUPERVISORS FOR THE PURPOSE OF EXCLUSIVE RECOGNITION OR
NATIONAL CONSULTATION RIGHTS. A SUPERVISOR IS DEFINED IN SECTION 2(C)
AS FOLLOWS:
"SUPERVISOR" MEANS 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 RESPONSIBILITY 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.
THE AUTHORITY POSSESSED BY NORRIS WHEN ACTING AS THE ALTERNATE TO HIS
SUB-UNIT SUPERVISOR HAS BEEN PREVIOUSLY DESCRIBED IN THIS DECISION.
SUFFICE TO SAY, NORRIS' DUTIES AS AN ACTING SUPERVISOR WERE PRECISELY
THOSE OF A MORE EXPERIENCED WORKER BEING ASKED TO GIVE GUIDANCE AND
INSTRUCTIONS TO LESS EXPERIENCED WORKERS. IN SUCH CAPACITY, NORRIS HAD
VERY LIMITED RESPONSIBILITY WHICH WAS EXERCISED, IN ANY EVENT, UPON A
SPORADIC BASIS. ACCORDINGLY, I FIND THAT NORRIS WAS NOT A SUPERVISOR
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
B. WHETHER THE DISTRIBUTION OF DUES CHECKOFF REVOCATION FORM IS A
RIGHT PROTECTED BY SECTION 1(A) OF THE ORDER.
AS AN "EMPLOYEE" NORRIS WAS AND IS GUARANTEED CERTAIN RIGHTS UNDER
THE EXECUTIVE ORDER. INCLUDED AMONG THESE RIGHTS ARE THOSE FOUND IN
SECTION 1(A) WHICH PROVIDES, IN PERTINENT 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.
THEREFORE, JUST AS AN EMPLOYEE HAS A RIGHT TO ENGAGE IN ACTIVITY
WHICH ASSISTS A LABOR ORGANIZATION, HE OR SHE ALSO HAS A RIGHT TO ENGAGE
IN ACTIVITY WHICH, AS A PRACTICAL MATTER, DOES NOT ASSIST A LABOR
ORGANIZATION. THIS IS WHAT IS MEANT BY THE PHRASE "REFRAIN FROM ANY
SUCH ACTIVITY" IN SECTION 1(A). FOR EXAMPLE, AN EMPLOYEE MAY ACTIVELY
ENCOURAGE OTHER EMPLOYEES TO VOTE AGAINST UNION ORGANIZATION IN THE
FIRST PLACE. WHEN A UNION HAS BEEN CERTIFIED AS BARGAINING
REPRESENTATIVE, AN EMPLOYEE MAY EXERCISE HIS RIGHT TO REFRAIN FROM UNION
ACTIVITY BY DECIDING TO RESIGN FROM THE UNION, AS IN THIS CASE.
LIKEWISE, IF A UNION MEMBER HAS MADE A VOLUNTARY ALLOTMENT OF HIS WAGES
FOR THE PURPOSE OF SATISFYING HIS DUES-PAYING OBLIGATION TO THE LABOR
ORGANIZATION UNDER A "CHECKOFF" PROGRAM ESTABLISHED UNDER SECTION 21 OF
THE ORDER, THE UNION MEMBER MAY REVOKE HIS AUTHORIZATION AT 6-MONTH
INTERVALS AS SECTION 21 PROVIDES. /4/
WHATEVER MOTIVES MAY BE ASCRIBED TO THE ACTIONS OF NORRIS IN SECURING
COPIES OF STANDARD FORM 1188 AT THE REQUEST OF CERTAIN OF HIS CO-WORKERS
AND DISTRIBUTING THESE FORMS TO THEM, HIS ACTIVITY MUST BE VIEWED AS
FALLING WITHIN THE BOUNDS OF SECTION 1(A). WHETHER IN SO ACTING NORRIS
WAS MERELY DOING A PERSONAL FAVOR FOR THESE EMPLOYEES WHO HAD ASKED HIS
ASSISTANCE OR WAS INTENDING THEREBY TO UNDERCUT THE MAJORITY SUPPORT OF
THE UNION, HIS ACTIONS IN AID OF THE EXERCISE OF PROTECTED RIGHTS ARE
THEMSELVES PROTECTED. ACCORDINGLY, I CONCLUDE THAT NORRIS, IN
DISTRIBUTING DUES CHECKOFF FORMS, WAS ENGAGING IN A RIGHT PROTECTED BY
SECTION 1(A) OF THE ORDER.
C. WHETHER DISTRIBUTION OF DUES CHECKOFF REVOCATION FORMS DURING
DUTY HOURS IS PROHIBITED BY SECTION 20.
THE EXECUTIVE ORDER PROVIDES IN SECTION 20 THAT CERTAIN UNION
ACTIVITY, WHICH IS OTHERWISE LAWFUL WITHIN THE MEANING OF SECTION 20
READS AS FOLLOWS:
SEC. 20. USE OF OFFICIAL TIME. SOLICITATION OF MEMBERSHIP OR DUES,
AND OTHER INTERNAL BUSINESS OF A LABOR ORGANIZATION, SHALL BE CONDUCTED
DURING THE NON-DUTY HOURS OF THE EMPLOYEES CONCERNED. EMPLOYEES WHO
REPRESENT A RECOGNIZED LABOR ORGANIZATION SHALL NOT BE ON OFFICIAL TIME
WHEN NEGOTIATING AN AGREEMENT WITH AGENCY MANAGEMENT, EXCEPT TO THE
EXTENT THAT THE NEGOTIATING PARTIES AGREE TO OTHER ARRANGEMENTS WHICH
MAY PROVIDE THAT THE AGENCY WILL EITHER AUTHORIZE OFFICIAL TIME FOR UP
TO 40 HOURS OR AUTHORIZE UP TO ONE-HALF THE TIME SPENT IN NEGOTIATIONS
DURING REGULAR WORKING HOURS, FOR A REASONABLE NUMBER OF EMPLOYEES,
WHICH NUMBER NORMALLY SHALL NOT EXCEED THE NUMBER OF MANAGEMENT
REPRESENTATIVES.
AS I READ SECTION 20, IT CLEARLY MEANS THAT DISTRIBUTION OF DUES
CHECKOFF REVOCATION FORMS DURING DUTY HOURS IS NOT PERMITTED. /5/
INDEED, THIS CASE PRESENTS A GOOD EXAMPLE OF WHY SUCH CONDUCT SHOULD NOT
BE PERMITTED. TO ACCOMPLISH WHAT HE SET OUT TO DO, NORRIS HIMSELF DID
THE FOLLOWING: (1) HE NEGLECTED HIS OWN OFFICIAL DUTIES (FOR WHICH HE
WAS BEING PAID BY HIS ACTIVITY) TO SET OUT ON HIS OWN PRIVATE MISSION;
AND (2) HE NECESSARILY INTERRUPTED OTHER EMPLOYEES IN THE PERFORMANCE OF
THEIR OFFICIAL DUTIES WHEN HE ASKED IF THEY DESIRED THE FORMS. IT IS
THIS KIND OF DISRUPTIVE ACTIVITY WHICH, IN MY OPINION, SECTION 20 SEEKS
TO ELIMINATE.
D. WHETHER CONDUCT PROTECTED BY SECTION 1(A) LOSES ITS PROTECTION IF
DONE IN VIOLATION OF SECTION 20.
THE QUESTION REMAINS, HOWEVER, AS TO WHAT ONE DOES TO AN EMPLOYEE
FOUND TO BE ENGAGING IN ACTIVITY PROHIBITED BY SECTION 20. THE
EXECUTIVE ORDER DOES NOT EXPRESSLY PROVIDE THAT SUCH CONDUCT MUST BE THE
SUBJECT OF DISCIPLINARY ACTION OR BY WHOM. IN THE PRIVATE SECTOR AN
EMPLOYER USUALLY HAS PLANT RULES GOVERNING SUCH ACTIVITY AND SOMETIMES
THESE RULES ARE THE RESULT OF COLLECTIVE BARGAINING. IN ANY EVENT, ONE
THING IS CLEAR: SECTION 20 WAS PLACED IN THE EXECUTIVE ORDER FOR A
SPECIFIC PURPOSE AND I FIND THAT BOTH AGENCY MANAGEMENT AND LABOR
ORGANIZATIONS HAVE THE OBLIGATION AND RESPONSIBILITY TO ENSURE THAT
SECTION 20 IS OBSERVED.
AS A PRACTICAL MATTER, HOWEVER, IT MUST BE RECOGNIZED THAT AGENCY
MANAGEMENT, THROUGH ITS SUPERVISORY ECHELON, IS OBVIOUSLY IN THE BETTER
POSITION TO OBSERVE WHETHER OR NOT SECTION 20 IS BEING OBSERVED OR
IGNORED. ALSO, IT IS INCUMBENT UPON AGENCY MANAGEMENT TO ENFORCE
SECTION SECTION 20 IN AN EVENHANDED MANNER, OR ELSE IT MIGHT ITSELF BE
THE SUBJECT OF AN UNFAIR LABOR PRACTICE CHARGE.
ACCORDINGLY, ON THE BASIS OF THE FOREGOING, I CONCLUDE THAT CONDUCT
NORMALLY COMING WITHIN THE PURVIEW OF SECTION 1(A) OF THE ORDER LOSES
ITS PROTECTED STATUS WHEN SUCH CONDUCT ALSO VIOLATES SECTION 20.
E. WHETHER THE UNION REPRESENTATIVES VIOLATED SECTIONS 19(B)(1) AND
(3) BY THEIR CONDUCT ON FEBRUARY 15.
COMPLAINANT ALLEGES THAT RESPONDENT VIOLATED SECTION 19(B)(1) OF THE
ORDER. THAT SECTION PROVIDES THAT AGENCY MANAGEMENT SHALL NOT
"INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE
RIGHTS ASSURED BY THIS ORDER". I FIND THAT NORRIS, BECAUSE HE WAS
VIOLATING SECTION 20, WAS NOT ENGAGED IN CONDUCT ASSURED BY THE ORDER.
I FURTHER FIND THAT THE STATEMENTS MADE BY RESPONDENT'S REPRESENTATIVES
ON THIS OCCASION WERE, WITH ONE EXCEPTION, NOT OF SUCH A NATURE AS TO
AMOUNT TO INTERFERENCE, RESTRAINT, OR COERCION WITHIN THE MEANING OF
SECTION 19(B)(1) AND IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE. /6/
THE ONE EXCEPTION IS THE UNDENIED STATEMENT ATTRIBUTED TO UNION
REPRESENTATIVE LASSITER WHO TOLD NORRIS HE WOULD BLACKBALL HIM SHOULD HE
EVER ATTEMPT TO REJOIN THE UNION. ALTHOUGH NORRIS WAS THEN PRESENTLY
ENGAGED IN AN UNPROTECTED ACTIVITY, LASSITER'S STATEMENT APPLIED TO
NORRIS' POSSIBLE APPLICATION IN THE FUTURE FOR READMISSION TO THE UNION,
A RIGHT HE HAD UNDER SECTION 19(C). ACCORDINGLY, I CONCLUDE THAT
RESPONDENT, BY REASON OF LASSITER'S STATEMENT, INTERFERED WITH,
RESTRAINED, AND COERCED NORRIS IN VIOLATION OF SECTION 19(B)(1).
IN ADDITION TO THE ABOVE, COMPLAINANT CONTENDS THAT THE ACTIONS OF
THE UNION AGENTS WORKED A VIOLATION OF SECTION 19(B)(3). THIS SECTION
MAKES IT UNLAWFUL FOR A UNION TO DO THE FOLLOWING:
COERCE, ATTEMPT TO COERCE, OR DISCIPLINE, FINE, OR TAKE OTHER
ECONOMIC SANCTION AGAINST, A MEMBER OF THE ORGANIZATION AS PUNISHMENT OR
REPRISAL FOR, OR FOR THE PURPOSE OF HINDERING OR IMPEDING HIS WORK
PERFORMANCE, HIS PRODUCTIVITY, OR THE DISCHARGE OF HIS DUTIES OWED AS AN
OFFICER OR EMPLOYEE OF THE UNITED STATES;
FOR A VIOLATION OF THIS SECTION TO BE FOUND SOME NEXUS BETWEEN THE
OFFENSIVE UNION CONDUCT AND THE EMPLOYEE'S JOB PERFORMANCE MUST BE
DEMONSTRATED.
THE EVIDENCE ADDUCED AT THE HEARING OF THIS MATTER FAILS TO ESTABLISH
THAT A VIOLATION OF THIS SECTION OF THE ORDER WAS CAUSED BY THE UNION'S
ACTIONS OF FEBRUARY 15. THERE IS NO INDICATION IN THE RECORD THAT THE
ACTIONS OF THE UNION AGENTS WERE IN ANY WAY RELATED TO NORRIS' PAST WORK
PERFORMANCE OR THAT THEY WERE INTENDED OR HAD THE EFFECT OF IMPEDING OR
HINDERING HIS FUTURE WORK PERFORMANCE. IN THE ABSENCE OF SUCH A
SHOWING, I RECOMMEND THAT THE SECTION 19(B)(3) CHARGE BE DISMISSED. /7/
HAVING FOUND THAT THE UNION HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTION 19(B)(1) OF THE ORDER, I RECOMMEND THAT THE ASSISTANT SECRETARY
ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSES OF
EXECUTIVE ORDER 11491.
HAVING FOUND, IN ADDITION, THAT COMPLAINANT HAS NOT PROVEN A
VIOLATION OF SECTION 19(B)(3) OR ANY OTHER VIOLATIONS OF SECTION
19(B)(1) OF THE ORDER, I RECOMMEND THAT THE ASSISTANT SECRETARY DISMISS
THAT PORTION OF THE COMPLAINT ALLEGING SUCH VIOLATIONS.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491 AND SECTION
203.25(A) OF THE RULES AND REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THAT THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987 SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO DENY READMISSION TO MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987 TO JERRY NORRIS, FOR ANY
REASONS OTHER THAN FAILURE TO MEET REASONABLE OCCUPATIONAL STANDARDS
UNIFORMLY REQUIRED FOR ADMISSION, OR FOR FAILURE TO TENDER INITIATION
FEES AND DUES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND
RETAINING MEMBERSHIP.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) UPON APPLICATION AND TENDER OF INITIATION FEES AND DUES UNIFORMLY
REQUIRED, REINSTATE JERRY NORRIS TO MEMBERSHIP IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 987.
(B) POST 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 A
REPRESENTATIVE OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
987, AND SHALL BE POSTED BY RESPONDENT FOR A PERIOD OF 60 CONSECUTIVE
DAYS IN CONSPICUOUS PLACES, INCLUDING ITS BUSINESS OFFICE, NORMAL
MEETING PLACES, AND ALL PLACES WHERE NOTICES TO MEMBERS ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN BY RESPONDENT TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE U.S. AIR FORCE WARNER
ROBINS AIR MATERIAL AREA, WARNER ROBINS, GEORGIA, 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.
(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: APRIL 8, 1974
WASHINGTON, D.C.
WE WILL NOT THREATEN TO DENY READMISSION TO MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, TO JERRY NORRIS FOR ANY
REASON OTHER THAN FAILURE TO MEET REASONABLE OCCUPATIONAL STANDARDS
UNIFORMLY REQUIRED FOR ADMISSION, OR FOR FAILURE TO TENDER INITIATION
FEES AND DUES UNIFORMLY REQUIRED AS A CONDITION OF ACQUIRING AND
RETAINING MEMBERSHIP.
WE WILL, UPON APPLICATION AND TENDER OF INITIATION FEES AND DUES
UNIFORMLY REQUIRED, REINSTATE JERRY NORRIS TO MEMBERSHIP IN AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987.
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 FOR THE LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS ROOM 300, 1371 PEACHTREE
STREET, N.E., ATLANTA, GEORGIA 30309.
4 A/SLMR 419; P. 503; CASE NO. 50-9119; AUGUST 1, 1974.
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
GREAT LAKES PROGRAM CENTER
A/SLMR NO. 419
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
LOCAL 1395, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE)
ALLEGING THAT THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL
SECURITY ADMINISTRATION, GREAT LAKES PROGRAM CENTER (RESPONDENT)
VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS AMENDED,
BY DENYING EMMA COLEMAN UNION REPRESENTATION DURING HER SEPTEMBER 5,
1972, "PERFORMANCE INTERVIEW."
WHILE THE ADMINISTRATIVE LAW JUDGE FOUND THE COLEMAN HAD, IN FACT,
BEEN DENIED UNION REPRESENTATION DURING THE SUBJECT "PERFORMANCE
INTERVIEW," HE DETERMINED THAT THE INTERVIEW INVOLVED WAS NOT A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE ORDER. AS COLEMAN
WAS NOT ENTITLED TO HAVE UNION REPRESENTATION AT SUCH DISCUSSION, THE
ADMINISTRATIVE LAW JUDGE HELD, IN ACCORDANCE WITH THE DECISION IN
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD,
A/SLMR NO. 336, THAT THE DENIAL OF COLEMAN'S REQUEST TO HAVE A UNION
REPRESENTATIVE PRESENT DURING HER "PERFORMANCE INTERVIEW" WAS NOT A
VIOLATION OF SECTION 19(A)(1) OR (6) OF THE ORDER, ACCORDINGLY, HE
RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE MATTER, THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS,
AND RECOMMENDATION THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
GREAT LAKES PROGRAM CENTER
AND
LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
ON MAY 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. NO TIMELY EXCEPTIONS WERE FILED 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 THE SUBJECT CASE, I HEREBY ADOPT
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /2/ CONCLUSIONS, AND
RECOMMENDATION.
IT IS HEREBY ORDERED THAT THE COMPLAINANT IN CASE NO. 50-9119 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
AUGUST 1, 1974
/1/ THE COMPLAINANT FILED UNTIMELY EXCEPTIONS WHICH WERE NOT
CONSIDERED.
/2/ WHILE THE RECORD REFLECTS THAT THE EMPLOYEE IN QUESTION HAD THREE
GRIEVANCES PENDING AT THE TIME THAT HER "PERFORMANCE INTERVIEW" WAS
CONDUCTED, THE EVIDENCE ESTABLISHES THAT THE SUBJECT INTERVIEW DID NOT
INCLUDE CONSIDERATION OR DISCUSSION OF SUCH PENDING GRIEVANCE. CF.
DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL GUARD,
A/SLMR NO. 336, FLRC NO. 74A-11.
IN THE MATTER OF
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
GREAT LAKES PROGRAM CENTER
AND
LOCAL 1395, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
JACK S. WALKER
VICE PRESIDENT, AFGE LOCAL 1395
165 N. CANAL STREET
CHICAGO, ILLINOIS 60606
FRANCIS X. DIPPEL
LABOR-MANAGEMENT RELATIONS OFFICER
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE
SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND 21235
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED OCTOBER 12, 1972 AND FILED OCTOBER 19,
1972. THE COMPLAINT ALLEGES A VIOLATION OF SECTIONS 19(A)(1), (2), (4),
AND (6) OF THE EXECUTIVE ORDER. THE VIOLATION WAS ALLEGED TO CONSIST OF
DENYING TO EMMA COLEMAN, A SEARCH AND CONTROL ASSISTANT EMPLOYED BY
RESPONDENT (AT THE TIME KNOWN AS THE CHICAGO PAYMENT CENTER), THE RIGHT
TO HAVE A UNION REPRESENTATIVE PRESENT AT A "PERFORMANCE INTERVIEW"
ALTHOUGH THE EMPLOYEE REQUESTED IT.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. THE RESPONDENT FILED WITH THE ASSISTANT
REGIONAL DIRECTOR A MOTION TO DISMISS, AND EXTENSIVE PROCEEDINGS ENSUED.
ON SEPTEMBER 13, 1973, THE ACTING ASSISTANT REGIONAL DIRECTOR DISMISSED
THE ALLEGATION OF A VIOLATION OF SECTION 19(A)(4) AND STATED HE WOULD
SEND THE REMAINING ISSUES TO HEARING BECAUSE THE POSITIONS OF THE
PARTIES CONCERNING THEM RAISED MATERIAL FACTUAL ISSUES. NO REVIEW WAS
SOUGHT FROM THE DISMISSAL OF A VIOLATION OF SECTION 19(A)(4) OF THE
EXECUTIVE ORDER. AT THE HEARING THE ALLEGATION OF A VIOLATION OF
SECTION 19(A)(2) WAS EXPRESSLY ABANDONED.
ON DECEMBER 4, 1973, THE ASSISTANT REGIONAL DIRECTOR ISSUED A NOTICE
OF HEARING TO BE HELD ON FEBRUARY 20, 1974 IN CHICAGO, ILLINOIS.
HEARINGS WERE HELD FEBRUARY 20 AND 21, 1974 IN CHICAGO. PURSUANT TO
EXTENSIONS OF TIME GRANTED THEREFOR, TIMELY BRIEFS WERE FILED APRIL 3
AND 4, 1974.
THE COMPLAINANT CONTENDS THAT A "PERFORMANCE INTERVIEW" IS A FORMAL
DISCUSSION BETWEEN A SUPERVISOR AND A SUPERVISEE COVERED BY THE LAST
SENTENCE OF SECTION 10(E) OF THE EXECUTIVE ORDER AT WHICH A RECOGNIZED
UNION HAS A RIGHT TO BE REPRESENTED AND THAT CONSEQUENTLY THE EMPLOYEE
HAS THE RIGHT TO HAVE A UNION REPRESENTATIVE PRESENT. THE RESPONDENT
CONTENDS THAT A "PERFORMANCE INTERVIEW" IS NOT A DISCUSSION ENVISAGED BY
THE LAST SENTENCE OF SECTION 10(E).
THE SOCIAL SECURITY ADMINISTRATION IS A COMPONENT OF THE DEPARTMENT
OF HEALTH, EDUCATION, AND WELFARE. THE S.S.A. HAS A NUMBER OF BUREAUS,
INCLUDING THE BUREAU OF RETIREMENT AND SURVIVORS INSURANCE. THE BUREAU
IN TURN HAS SIX PROGRAM CENTERS, ONE OF WHICH IS THE GREAT LAKES PROGRAM
CENTER WHICH AT THE TIME OF THE ALLEGED UNFAIR LABOR PRACTICE WAS KNOWN
AS THE CHICAGO PAYMENT CENTER. EMMA COLEMAN IS, AND AT ALL RELEVANT
TIMES WAS, A CLERK IN THE GREAT LAKES PROGRAM CENTER.
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES HAS HAD EXCLUSIVE
NATIONAL RECOGNITION WITH THE SOCIAL SECURITY ADMINISTRATION SINCE 1969.
ITS RECOGNITION COVERS ALL NON-SUPERVISORY EMPLOYEES. ITS
REPRESENTATION OF EMPLOYEES OF THE BUREAU OF RETIREMENT AND SURVIVORS
INSURANCE IS THROUGH ITS NATIONAL COUNCIL OF SOCIAL SECURITY PAYMENT
CENTER LOCALS. THE COUNCIL CONSISTS OF SIX LOCALS, ONE FOR EACH OF THE
PROGRAM CENTERS. THE LOCAL FOR THE GREAT LAKES PROGRAM CENTER IS LOCAL
1395. IT HAS AUTHORITY TO ACT FOR THE COUNCIL WITH RESPECT TO THE GREAT
LAKES PROGRAM CENTER.
ON SEPTEMBER 5, 1972 MS. COLEMAN HAD A "PERFORMANCE INTERVIEW" WITH
HER IMMEDIATE SUPERVISOR, WHOSE NAME THEN WAS MARION FITZPATRICK AND WHO
AT THE TIME OF THE HEARING WAS MARION FITZPATRICK DESHAZOR. THE
INTERVIEW WAS AT MS. DESHAZOR'S DESK. MS. COLEMAN ASKED THAT A
REPRESENTATIVE OF HER UNION BE PRESENT AND MS. DESHAZOR DENIED THAT
REQUEST. AFTER THE INTERVIEW MS. DESHAZOR WROTE A MEMORANDUM TO MS.
COLEMAN SUMMARIZING THE INTERVIEW. SINCE THE NATURE AND SIGNIFICANCE OF
A PERFORMANCE INTERVIEW IS THE CRITICAL ISSUE IN THIS CASE, IT IS
DESCRIBED IN SOME DETAIL.
SUPERVISORS IN THE SOCIAL SECURITY ADMINISTRATION ARE SUPPOSED TO
HAVE PERFORMANCE INTERVIEWS WITH EMPLOYEES THEY DIRECTLY SUPERVISE. THE
PURPOSE IS FOR THE SUPERVISOR TO ACQUAINT THE SUPERVISEE WITH HOW THE
SUPERVISOR BELIEVES THE SUPERVISEE IS PERFORMING HER JOB,-- WHICH PARTS
OF HER WORK ARE BEING PERFORMED WELL, WAYS OF IMPROVING THOSE ASPECTS
THAT WERE NOT SATISFACTORY, WORK HABITS, ABSENCES, RELATIONS WITH FELLOW
EMPLOYEES, AND OTHER WORK-RELATED ASPECTS OF PERFORMANCE OF THE JOB.
THERE WAS NO RIGID PERIODICITY FOR THE INTERVIEWS. IN GENERAL, IT WAS
EXPECTED THAT A PERFORMANCE INTERVIEW WOULD BE HELD AT LEAST ONCE IN
EACH RATING PERIOD BETWEEN THE TIME OF THE RATINGS. EMPLOYEES WHO WERE
IN GRADE GS-6 OR LOWER WERE RATED EVERY SIX MONTHS AND THOSE IN HIGHER
GRADES ONCE A YEAR. SUPERVISORS HAD DISCRETION IN HOW OFTEN TO HAVE A
PERFORMANCE INTERVIEW; THEY WERE HAD MORE OFTEN WITH EMPLOYEES WHO WERE
PROBLEMS. THE TWENTY TO THIRTY EMPLOYEES SUPERVISED BY MS. DESHAZOR
WERE ALL IN GRADE GS-6 OR LOWER, AND SHE HAD A PERFORMANCE INTERVIEW
WITH EACH OF THEM EVERY THREE MONTHS OR SO.
AFTER A PERFORMANCE INTERVIEW, THE SUPERVISOR WROTE A SUMMARY OF WHAT
WAS SAID. THE SUPERVISOR GAVE A COPY TO THE SUPERVISEE AND FILED A COPY
IN THE SUPERVISOR'S "SF 7-B EXTENSION FILE", DESCRIBED BELOW. THE
SUPERVISEE HAD A RIGHT TO FILE A RESPONSE TO THE SUMMARY, TO QUESTION
EITHER ITS ACCURACY AS A SUMMARY OF WHAT WAS SAID OR THE CORRECTNESS OF
WHAT THE SUPERVISOR HAD SAID AT THE PERFORMANCE INTERVIEW. SUCH RIGHT
WAS SELDOM EXERCISED. AFTER EACH PERFORMANCE INTERVIEW MS. DESHAZOR
TOLD EACH EMPLOYEE OF SUCH RIGHT. THE SUPERVISOR'S SUMMARY OF THE
PERFORMANCE INTERVIEW COULD BE THE SUBJECT OF A GRIEVANCE. AT THE TIME
OF THE PERFORMANCE INTERVIEW HERE INVOLVED, MS. COLEMAN HAD THREE
GRIEVANCES PENDING, ONE OF WHICH WAS A STATEMENT MADE BY MS. DESHAZOR AT
THE PREVIOUS PERFORMANCE INTERVIEW AS REFLECTED IN ITS SUMMARY.
AN SF 7-B EXTENSION FILE IS AN INFORMAL FILE THAT A SUPERVISOR MAY
KEEP WITH RESPECT TO AN EMPLOYEE HE SUPERVISES. SOME SUPERVISORS WHO
SUPERVISE ONLY VERY FEW EMPLOYEES DO NOT HAVE SUCH FILES; A SUPERVISOR
WHO SUPERVISES AS MANY EMPLOYEES AS MS. DESHAZOR SUPERVISES KEEPS SUCH
FILES. MS. DESHAZOR KEPT AN SF 7-B EXTENSION FILE FOR EVERY EMPLOYEE
SHE SUPERVISED.
MATERIAL IN THE SF 7-B EXTENSION FILE IS OF A TEMPORARY NATURE AND IS
DISCARDED FROM TIME TO TIME. IT INCLUDES THE SUPERVISOR'S SUMMARY OF A
PERFORMANCE INTERVIEW, /1/ NOTES OF A PERSONAL OBSERVATION OF A
SUPERVISEE, NOTATIONS OF SPECIAL RECOGNITION, OR ANY OTHER NOTE THE
SUPERVISOR CARES TO MAKE. THE MATERIAL IN THE EXTENSION FILE MAY BE
USED BY THE SUPERVISOR FOR ASSISTANCE IN PREPARING PERFORMANCE
APPRAISALS, SUPPORT FOR RECOMMENDING AN AWARD OR DISCIPLINE, SUPPORT OF
MANAGEMENT'S POSITION WHEN A GRIEVANCE IS FILED, AND OTHER PURPOSES.
MATERIAL IN THE EXTENSION FILE IS DISCARDED PERIODICALLY WITHOUT ANY
RECORD BEING MADE THAT IT HAD BEEN IN THE EXTENSION FILE. NORMALLY, THE
EXTENSION FILE IS PURGED OF ITS MATERIAL AFTER ABOUT SIX MONTHS OF A
YEAR, BUT MATERIAL PERTINENT TO A PENDING MATTER SUCH AS A GRIEVANCE MAY
BE KEPT UNTIL THE MATTER IS DISPOSED OF.
THE EMPLOYEE WHO IS THE SUBJECT OF AN SF 7-B EXTENSION FILE RECEIVES
A COPY OF EVERYTHING THAT GOES INTO IT OR AT LEAST HAS ACCESS TO
EVERYTHING IN THE FILE. BUT THE PRIMARY AND DOMINANT PURPOSE OF THE
FILE IS FOR THE USE OF THE EMPLOYEE'S IMMEDIATE SUPERVISOR TO ASSIST HIM
IN HIS SUPERVISORY WORK SUCH AS MAKING PERFORMANCE APPRAISALS OF
SUPERVISORS IF HE HAS TOO MANY TO RELY SOLELY ON HIS OWN MEMORY.
THE MATTER OF DISCIPLINE, PROPOSED OR CONTEMPLATED, IS NEVER THE
SUBJECT OF A PERFORMANCE INTERVIEW. ANY SUCH MATTER IS ALWAYS THE
SUBJECT OF A SEPARATE DISCUSSION AT WHICH THE EMPLOYEE HAS A RIGHT TO
HAVE A UNION REPRESENTATIVE PRESENT IF IT IS A SERIOUS MATTER.
THREE DECISIONS OF THE ASSISTANT SECRETARY ARE DIRECTLY PERTINENT TO
THE BASIC ISSUE IN THIS CASE, I.E., WHETHER THE DENIAL TO MS. COLEMAN OF
HER REQUEST THAT A REPRESENTATIVE OF HER UNION BE PRESENT AT HER
PERFORMANCE INTERVIEW ON SEPTEMBER 5, 1972 WAS A VIOLATION OF SECTION
19(A)(1) OR (6) OR BOTH. U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING
CENTER, FT. JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA,
A/SLMR NO. 242; U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL,
FT. WAINWRIGHT, ALASKA, A/SLMR NO. 278; DEPARTMENT OF DEFENSE, NATIONAL
GUARD BUREAU, TEXAS AIR NATIONAL GUARD, A/SLMR NO. 336. IT IS THE
DISTINCTIONS BETWEEN THOSE CASES THAT DETERMINES THE APPROPRIATE
DISPOSITION OF THIS CASE. OTHER DECISION ARE ONLY PERIPHERALLY
RELEVANT.
ALL THREE OF THOSE CASES, AND THIS CASE, TURN ON THE MEANING AND
APPLICATION OF THE LAST SENTENCE OF SECTION 10(E) OF THE EXECUTIVE
ORDER, WHICH READS:
"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 THE FORT JACKSON CASE, AN EMPLOYEE OF THE ACTIVITY WHO WAS ON
EXTENDED SICK LEAVE RECEIVED A LETTER FROM THE ACTIVITY'S MANAGER. THE
LETTER DIRECTED THE EMPLOYEE TO FURNISH A DOCTOR'S CERTIFICATE BY
SEPTEMBER 9 SETTING FORTH THE EMPLOYEE'S PHYSICAL CONDITION AND THE DATE
ON WHICH THE EMPLOYEE WAS EXPECTED TO RETURN TO WORK, AND STATED THAT
FAILURE TO COMPLY WITH SUCH DIRECTION MIGHT BE THE BASIS FOR
"DISCIPLINARY OR ADVERSE ACTION". THE EMPLOYEE WAS DISTURBED BY THE
LETTER. SHE RETURNED TO WORK ON SEPTEMBER 8 WITH A DOCTOR'S CERTIFICATE
ATTESTING TO HER ILLNESS.
ON SEPTEMBER 23 THE PRESIDENT OF THE EMPLOYEE'S EXCLUSIVELY
RECOGNIZED LOCAL UNION CALLED THE EMPLOYEE'S MANAGER AND TRIED TO
ARRANGE A MEETING TO BE ATTENDED BY HIMSELF, THE MANAGER, AND THE
EMPLOYEE. THE MANAGER REFUSED THE REQUEST. THE MANAGER CALLED A
MEETING THE SAME DAY AT WHICH SEVERAL MANAGEMENT PEOPLE WERE PRESENT ONE
OF WHOM WAS TO TAKE NOTES TO MAKE A RECORD OF THE MEETING. THE EMPLOYEE
AND ANOTHER EMPLOYEE SHE CONSIDERED HER SHOP STEWARD WERE CALLED TO THE
MEETING. THE MEETING WAS CALLED TO EXPLAIN THE LETTER TO THE EMPLOYEE
AND TO ANSWER HER QUESTIONS. AT THE COMMENCEMENT OF THE MEETING THE
EMPLOYEE REQUESTED THAT HER LOCAL PRESIDENT BE PRESENT AND WAS TOLD HE
WOULD NOT BE THERE. THE EMPLOYEE REFUSED TO DISCUSS THE MATTER WITHOUT
HER LOCAL PRESIDENT PRESENT.
IT WAS HELD THAT THE MEETING WAS A "FORMAL DISCUSSION" WITHIN THE
MEANING OF SECTION 10(E) OF THE ORDER AND THAT IT INVOLVED "PERSONNEL
POLICIES AND PRACTICES". THE "FORMAL" NATURE OF THE MEETING WAS FOUND
FROM THE NUMBER OF MANAGEMENT REPRESENTATIVES PRESENT, THE FACT THAT ONE
OF THEM WAS TO MAKE A RECORD OF THE MEETING, AND THE FACT THAT AN
EMPLOYEE CONSIDERED TO BE A STEWARD WAS PRESENT. THAT IT CONCERNED
PERSONNEL POLICIES AND PRACTICES WAS CONCLUDED FROM THE FACT THAT THE
SUBJECT OF REQUIRING A DOCTOR'S CERTIFICATE IN SOME TYPES OF SICK LEAVE
AND RAMIFICATIONS FOR ALL UNIT EMPLOYEES. IT WAS HELD FURTHER THAT THE
UNION HAD A RIGHT THEREFORE TO BE PRESENT BY A REPRESENTATIVE OF ITS OWN
CHOOSING AND THAT HOLDING THE MEETING WITHOUT THE LOCAL'S PRESIDENT
AFTER DENYING HIS REQUEST FOR A MEETING WAS A REFUSAL TO CONSULT,
CONFER, OR NEGOTIATE IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
IN THE FORT WAINWRIGHT CASE (NO. 278), A MEETING WAS HELD BY THE
ACTIVITY WITH AN EMPLOYEE TO DISCUSS THE IMPLEMENTATION OF THE DECISION
OF A CIVIL SERVICE COMMISSION HEARING EXAMINER IN AN EQUAL EMPLOYMENT
OPPORTUNITY PROCEEDING BROUGHT BY THE EMPLOYEE. FOR MANAGEMENT
REPRESENTATIVES WERE PRESENT, BUT THE EMPLOYEE WAS TOLD TO COME TO THE
MEETING ALONE AND WAS NOT TOLD THE PURPOSE OF THE MEETING. WHEN THE
EMPLOYEE WAS TOLD AT THE MEETING THE PURPOSE OF THE MEETING, HE
REQUESTED THE PRESENCE OF HIS UNION REPRESENTATIVE. THE REQUEST WAS
DENIED. A MANAGEMENT REPRESENTATIVE THEN DISCUSSED THE HEARING
EXAMINER'S DECISION AND INSTRUCTED TWO OF THE OTHER MANAGEMENT
REPRESENTATIVES PRESENT TO IMPLEMENT THE DECISION. THE EMPLOYEE
REMAINED SILENT. AT THE CONCLUSION OF THE MEETING HE WAS ASKED IF HE
HAD ANY QUESTIONS ABOUT IMPLEMENTING THE DECISION. HE AGAIN REQUESTED
THE PRESENCE OF HIS UNION REPRESENTATIVE, AND AGAIN IT WAS DENIED. THE
MANNER OF IMPLEMENTING THE DECISION WAS FOUND TO HAVE A GENERAL IMPACT
ON THE EMPLOYEES IN THE UNIT BEYOND THE RECTIFICATION OF THE EMPLOYEE'S
CHARGE OF RACIAL DISCRIMINATION.
IT WAS HELD THAT THIS MEETING OF HIGH LEVEL MANAGEMENT
REPRESENTATIVES WITH THE EMPLOYEE TO DISCUSS THE IMPLEMENTATION OF THE
DECISION WAS A FORMAL DISCUSSION OF A GRIEVANCE AND A MATTER AFFECTING
WORKING CONDITIONS OF EMPLOYEES IN THE UNIT. ACCORDINGLY, NOT GIVING
THE EXCLUSIVE REPRESENTATIVE AN OPPORTUNITY TO BE PRESENT WAS A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER. IT WAS HELD ALSO THAT
SECTION 10(E), IN GIVING THE UNION THE RIGHT TO AN OPPORTUNITY TO BE
PRESENT AT SUCH A DISCUSSION, CONFERRED A CONCOMITANT RIGHT ON THE
EMPLOYEES IN THE UNIT THAT THE REPRESENTATIVE BE GIVEN THE OPPORTUNITY
TO REPRESENT THEM, AND DENYING SUCH RIGHT WAS A VIOLATION OF SECTION
19(A)(1).
THE MOST RECENT DECISION IN POINT IS THE TEXAS AIR NATIONAL GUARD
CASE (NO. 336). IN THE PERTINENT PART OF THAT CASE, THE ACTIVITY HAD
TWICE DENIED UNION REPRESENTATION TO AN EMPLOYEE AT A "COUNSELLING"
SESSION. /2/ THE FIRST WAS A DISCUSSION BETWEEN THE EMPLOYEE AND HIS
SECOND TIER SUPERVISOR CONCERNING CHANGES IN THE EMPLOYEE'S JOB. (THE
EMPLOYEE'S CONDUCT AT THIS SESSION LATER BECAME THE SUBJECT OF A
GRIEVANCE). THE EMPLOYEE EXPRESSED A DESIRE TO HAVE A UNION
REPRESENTATIVE PRESENT AT THIS COUNSELLING SESSION, BUT SUCH
REPRESENTATION WAS DENIED TO HIM. THE SECOND "COUNSELLING" SESSION WAS
A MEETING BETWEEN THE EMPLOYEE AND HIS THIRD TIER SUPERVISION CONCERNING
THE EMPLOYEE ARRIVING AT WORK IN CIVILIAN CLOTHES CONTRARY TO AN
EXISTING ORDER THAT MILITARY CLOTHES BE WORN. THIS TIME ALSO THE
EMPLOYEE STATED HE WANTED UNION REPRESENTATION, BUT HIS SUPERVISOR
STATED THAT UNION REPRESENTATION WAS NOT PERMITTED AT "COUNSELLING
SESSIONS". AS A RESULT OF THAT "COUNSELLING" SESSION THE EMPLOYEE WAS
GIVEN A LETTER OF "ADVERSE PERSONNEL ACTION". THIS RESULTED IN THE
FILING OF A GRIEVANCE.
THE ASSISTANT SECRETARY HELD THAT NEITHER OF THESE DISCUSSIONS WAS A
FORMAL DISCUSSION WITHIN THE MEANING OF THE LAST SENTENCE OF SECTION
10(E) AND THAT THEREFORE THE DENIAL OF UNION REPRESENTATION AT THEM WAS
NOT A DENIAL OF A UNION RIGHT CONFERRED BY THAT PROVISION ON THE UNION
NOR A DENIAL OF THE CONCOMITANT RIGHT OF THE EMPLOYEES THAT THE UNION BE
GIVEN AN OPPORTUNITY TO BE PRESENT AND THAT THEREFORE THE DENIAL OF
UNION REPRESENTATION WAS NOT A VIOLATION OF EITHER SECTION 19(A)(1) OR
SECTION 19(A)(6) OF THE EXECUTIVE ORDER. THIS CONCLUSION WAS REACHED ON
THE BASIS THAT (1) THE SESSIONS WERE NOT RELATED TO THE PROCESSING OF A
GRIEVANCE, (2) THE MATTERS DISCUSSED DID NOT INVOLVE GENERAL WORKING
CONDITIONS, /3/ (E) EACH OF THE DISCUSSIONS RELATED ONLY TO AN
INDIVIDUAL EMPLOYEE'S ALLEGED SHORTCOMINGS, AND (4) THEY HAD NO WIDER
RAMIFICATIONS THAN AN INDIVIDUAL EMPLOYEE AT A PARTICULAR TIME WITH
RESPECT TO INCIDENTS RELATED TO THE INDIVIDUAL EMPLOYEE.
A RECONCILIATION OF THE HOLDINGS IN THESE THREE CASES LEADS TO SOME
GENERAL OBSERVATIONS AND SOME SPECIFIC CONCLUSIONS.
OF COURSE THE LABEL ATTACHED TO A DISCUSSION AS A "FORMAL
DISCUSSION", AN "INFORMAL DISCUSSION", A "COUNSELLING SESSION," OR ANY
OTHER LABEL, IS NOT DISPOSITIVE OF ITS INCLUSION WITHIN OR EXCLUSION
FROM THE REQUIREMENT OF THE LAST SENTENCE OF SECTION 10(E). RATHER IT
IS THE NATURE AND SIGNIFICANCE OF THE DISCUSSION THAT IS DETERMINATIVE.
WITH THIS IN MIND, LET US LOOK AT WHAT WERE CONSIDERED THE SIGNIFICANT
FACTS IN THOSE THREE CASES TO DETERMINE WHETHER IN THIS CASE THERE WAS A
"FORMAL DISCUSSION" THAT IS GOVERNED BY THE FORT JACKSON AND FORT
WAINWRIGHT DECISIONS OR WHETHER IT IS GOVERNED BY THE TEXAS AIR NATIONAL
GUARD DECISION.
TWO SIGNIFICANT DIFFERENCES ARE OBSERVED BETWEEN THE MEETINGS
INVOLVED IN THE FORT JACKSON CASE AND THE FORT WAINWRIGHT CASE AND THE
MEETINGS INVOLVED IN THE TEXAS AIR NATIONAL GUARD CASE.
IN BOTH THE FORT JACKSON AND FORT WAINWRIGHT CASES, MANAGEMENT WAS
REPRESENTED BY SEVERAL PEOPLE. IN THE TEXAS AIR NATIONAL GUARD CASE,
AND IN THE INSTANT CASE, THE DISCUSSION WAS BETWEEN ONLY THE EMPLOYEE
AND HIS SUPERVISOR, A "ONE-ON-ONE" DISCUSSION. IN THE FIRST TWO CASES
THE SUBJECTS DISCUSSED HAD POTENTIAL RAMIFICATIONS AND SIGNIFICANCE
BEYOND THE INDIVIDUAL EMPLOYEE,-- THE REQUIREMENT OF A DOCTOR'S
CERTIFICATE WHEN SICK LEAVE WAS TAKEN IN THE FORT JACKSON CASE, AND THE
MANNER OF IMPLEMENTATION OF A DECISION IN A DISCRIMINATION CASE IN THE
FORT WAINWRIGHT CASE. IN THE TEXAS AIR NATIONAL GUARD CASE, EACH OF THE
TWO "COUNSELLING" SESSIONS CONCERNED ONLY THE INDIVIDUAL EMPLOYEE. EVEN
THOUGH THE SECOND OF THE TWO SESSIONS RESULTED IN A LETTER OF "ADVERSE
PERSONNEL ACTION", IT WAS HELD THAT SECTION 10(E) WAS INAPPLICABLE
BECAUSE ONLY THE EMPLOYEE WAS OR COULD BE AFFECTED. IN THE PRESENT CASE
ALSO THE INDIVIDUAL EMPLOYEE WAS OR COULD BE AFFECTED, AND, FURTHER, NO
ADVERSE ACTION COULD RESULT FROM THE PERFORMANCE INTERVIEW. THE
INTERVIEW HAD NO WIDER RAMIFICATIONS THAN AN INDIVIDUAL EMPLOYEE AT A
PARTICULAR TIME.
IT IS APPARENT THAT THE INSTANT CASE IS MUCH MORE LIKE THE TEXAS AIR
NATIONAL GUARD CASE THEN LIKE THE EARLIER CASES. INDEED, THE
NON-APPLICABILITY OF THE LAST SENTENCE OF SECTION 19(E) TO THIS CASE
WOULD APPEAR TO FOLLOW A FORTIORI FROM THE DECISION IN THAT CASE. IN
THAT CASE ONE OF THE DISCUSSIONS INVOLVED CHANGES THAT HAD BEEN MADE IN
THE EMPLOYEE'S JOB-CONTENT, AND THE OTHER DISCUSSION RESULTED IN THE
IMPOSITION OF DISCIPLINE. NEITHER OF SUCH CIRCUMSTANCES IS PRESENT
HERE.
I CONCLUDE THAT THE PERFORMANCE INTERVIEW INVOLVED HERE WAS NOT A
FORMAL DISCUSSION CONCERNING THE MATTER AFFECTING GENERAL WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 10(E) OF THE EXECUTIVE ORDER,
THAT MS. COLEMAN WAS NOT ENTITLED TO HAVE A UNION REPRESENTATIVE PRESENT
AT THAT DISCUSSION, AND THAT THE DENIAL OF HER REQUEST THAT A UNION
REPRESENTATIVE BE PRESENT WAS NOT A VIOLATION OF EITHER SECTION 19(A)(1)
OR SECTION 19(A)(6) OF THE EXECUTIVE ORDER.
I RECOMMEND THAT THE COMPLAINT BE DISMISSED.
DATED: MAY 29, 1974
WASHINGTON, D.C.
/1/ THE SUMMARY OF A PERFORMANCE INTERVIEW IS NOT FILED IN THE
EMPLOYEE'S OFFICIAL PERSONNEL FILE.
/2/ SUCH A SESSION WAS A MEETING BETWEEN AN EMPLOYEE AND HIS
SUPERVISOR AT WHICH A WIDE RANGE OF SUBJECTS COULD BE DISCUSSED,
INCLUDING PROPOSED DISCIPLINARY ACTION.
4 A/SLMR 418; P. 497; CASE NO. 22-3933(CA); JULY 31, 1974.
FEDERAL RAILROAD ADMINISTRATION
A/SLMR NO. 418
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2814
(COMPLAINANT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY IMPLEMENTING THE REORGANIZATION OF THE OFFICE OF
SAFETY OF THE RESPONDENT WITHOUT GOOD FAITH CONSULTATION ON THE IMPACT
OF THE REORGANIZATION WITH THE COMPLAINANT.
WITH REGARD TO THE RESPONDENT'S CONTENTION THAT IT WAS NOT OBLIGATED
TO MEET AND CONFER ON MATTERS CONCERNING ITS MISSION, BUDGET, AND
ORGANIZATION, BUT THAT, IN ANY EVENT, IT HAD FULLY INFORMED THE
COMPLAINANT IN A TIMELY MANNER OF THE REORGANIZATION OF THE OFFICE OF
SAFETY AS IT BECAME KNOWN TO IT, THE ASSISTANT SECRETARY FOUND THAT
UNDER SECTIONS 11(B) AND 12(B) OF THE ORDER, THE RESPONDENT WAS UNDER NO
OBLIGATION TO MEET AND CONFER WITH THE COMPLAINANT WITH REGARD TO ITS
DECISION TO REORGANIZE THE OFFICE OF SAFETY. HOWEVER, THE ASSISTANT
SECRETARY FOUND THAT WITH RESPECT TO THE RESPONDENT'S MEMORANDUM TO "ALL
EMPLOYEES," DATED NOVEMBER 6, 1972, AT 3:30 P.M., AND IN WHICH THE
RESPONDENT ANNOUNCED THE REORGANIZATION OF THE OFFICE OF SAFETY AND
LISTED THE TEMPORARY PERSONNEL ASSIGNMENTS EFFECTIVE AS OF MONDAY,
NOVEMBER 13, 1972, THE RESPONDENT HAD FAILED TO MEET AND CONFER WITH THE
COMPLAINANT AS TO THE PROCEDURES MANAGEMENT INTENDED TO OBSERVE IN
EFFECTUATING ITS DECISION TO REASSIGN EMPLOYEES AND AS TO THE IMPACT OF
SUCH DECISION. IN THIS REGARD, HE NOTED PRIOR DECISIONS IN WHICH IT WAS
FOUND THAT AN EXCLUSIVE REPRESENTATIVE SHOULD BE AFFORDED THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, AS TO SUCH INTENDED PROCEDURES, AND AS TO THE IMPACT OF THE
REASSIGNMENT DECISION ON THOSE EMPLOYEES ADVERSELY AFFECTED. HE
CONCLUDED THAT THE RESPONDENT HAD NOT COMPLIED WITH ITS OBLIGATIONS
UNDER THE ORDER BY NOT AFFORDING THE COMPLAINANT REASONABLE NOTIFICATION
AND AMPLE OPPORTUNITY TO MEET AND CONFER ON THE MATTERS INVOLVED PRIOR
TO TAKING ACTION. ACCORDINGLY, HE FOUND THAT THE RESPONDENT'S CONDUCT
CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
FURTHER, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S IMPROPER
FAILURE TO MEET AND CONFER WITH THE COMPLAINANT HAD A RESTRAINING
INFLUENCE UPON UNIT EMPLOYEES AND HAD A CONCOMITANT COERCIVE EFFECT UPON
THEIR RIGHTS ASSURED BY THE ORDER. ACCORDINGLY, HE CONCLUDED THAT THE
RESPONDENT'S IMPROPER CONDUCT HEREIN ALSO VIOLATED SECTION 19(A)(1) OF
THE ORDER.
FEDERAL RAILROAD ADMINISTRATION
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2814
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ACTING
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES EUGEN M.
LEVINE'S 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 AND ISSUES, ACCOMPANYING
EXHIBITS AND BRIEFS, THE ASSISTANT SECRETARY FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY IMPLEMENTING, ON NOVEMBER 13,
1972, THE REORGANIZATION OF THE RESPONDENT'S OFFICE OF SAFETY WITHOUT
GOOD FAITH CONSULTATION WITH THE COMPLAINANT ON THE IMPACT OF SUCH
REORGANIZATION. IT IS ALLEGED FURTHER THAT THIS CONDUCT INTERFERED
WITH, RESTRAINED, OR COERCED THE EMPLOYEES OF THE RESPONDENT IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER.
THE RESPONDENT TAKES THE POSITION THAT IT HAD NO OBLIGATION TO
CONSULT WITH THE COMPLAINANT ON THE REORGANIZATION OF THE OFFICE OF
SAFETY, NOR DID IT HAVE AN OBLIGATION TO NEGOTIATE WITH THE COMPLAINANT
ON THE IMPACT OF THE REORGANIZATION UPON BARGAINING UNIT EMPLOYEES.
FURTHER, IT CONTENDS THAT, IN ANY EVENT, IT MET ITS OBLIGATION TO
CONSULT IN GOOD FAITH.
THE FEDERAL RAILROAD ADMINISTRATION IS AN OPERATING ADMINISTRATION OF
THE DEPARTMENT OF TRANSPORTATION (DOT) WITH HEADQUARTERS IN WASHINGTON,
D.C. ON APRIL 28, 1971, THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, (AFGE) WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF A
NATIONWIDE UNIT OF ALL OF THE RESPONDENT'S EMPLOYEES, EXCLUDING
PROFESSIONALS AND EMPLOYEES OF THE ALASKA RAILROAD. AFGE LOCAL 2814 WAS
CHARTERED TO REPRESENT THIS UNIT OF EMPLOYEES. THEREAFTER, ON SEPTEMBER
3, 1971, THE RESPONDENT AND THE COMPLAINANT NEGOTIATED A TWO-YEAR
AGREEMENT WHICH COVERED THE ABOVE UNIT AND WHICH CONTAINED AN AUTOMATIC
RENEWAL CLAUSE. /1/
AS A RESULT OF THE PASSAGE OF THE RAIL SAFETY ACT IN 1970, A
REORGANIZATION OF THE OFFICE OF SAFETY WAS NECESSITATED. IN 1971, THE
HEADQUARTERS OF THE RESPONDENT BEGAN CONSIDERATION OF VARIOUS INTERNAL
RECOMMENDATIONS REGARDING SUCH REORGANIZATION. ALTHOUGH THE COMPLAINANT
WAS NOT INFORMED OFFICIALLY OF THESE RECOMMENDATIONS, SOME OF THE
DOCUMENTS PERTAINING THERETO WERE SHOWN TO CERTAIN OFFICERS OF THE
COMPLAINANT, WHICH THEN REQUESTED THAT THE REORGANIZATION NOT BE
EFFECTUATED UNTIL A STUDY WAS MADE TO DETERMINE HOW THE OFFICE OF SAFETY
SHOULD BE REORGANIZED. IN LIGHT OF THIS REQUEST, A STUDY WAS UNDERTAKEN
IN DECEMBER 1971 AND WAS COMPLETED ON MAY 2, 1972. THIS STUDY BECAME
KNOWN AS THE "PARK'S STUDY."
DURING THE PERIOD BETWEEN JANUARY 20 AND JULY 19, 1972, THE
COMPLAINANT, BY LETTER, AT REGULAR MEETINGS OF THE LABOR-MANAGEMENT
COMMITTEE, OR BY TELEPHONE, SOUGHT: (A) TO MEET WITH MANAGEMENT TO
DISCUSS MATTERS OF MUTUAL INTEREST PRIOR TO THE COMPLETION OF THE PARK'S
STUDY, (B) TO OBTAIN A COPY OF THE STUDY, OR (C) TO BE INFORMED AS TO
THE STATUS OF THE STUDY AND ITS RESULTS. ON OCCASION DURING THIS
PERIOD, THE RESPONDENT ADVISED THE COMPLAINANT, IN EFFECT, THAT THE
STUDY WAS UNDER ADVISEMENT AND THAT THE COMPLAINANT WOULD BE KEPT
INFORMED OF ANY COURSE OF ACTION THAT THE RESPONDENT MIGHT PROPOSE TO
TAKE AS A RESULT OF THE STUDY WHICH WOULD AFFECT UNIT EMPLOYEES. AT NO
TIME WAS THE COMPLAINANT PROVIDED A COPY OF THE PARK'S STUDY. ALSO, AT
VARIOUS TIMES THROUGHOUT THIS PERIOD, THE RESPONDENT ASSURED THE
COMPLAINANT THAT NONE OF THE EMPLOYEES WOULD BE DEMOTED OR DISCHARGED
DUE TO THE REORGANIZATION OF THE OFFICE OF SAFETY.
THE RECORD INDICATES THAT AT THE JULY 19, 1972, REGULAR MEETING OF
THE LABOR-MANAGEMENT COMMITTEE, THE RESPONDENT'S ASSOCIATE ADMINISTRATOR
FOR SAFETY MET WITH THE COMMITTEE AS THE RESPONDENT'S DESIGNEE TO
DISCUSS THE PROPOSED OFFICE OF SAFETY REORGANIZATION PLAN. ON AUGUST
10, 1972, THE COMPLAINANT WROTE THE RESPONDENT AND ADVISED THAT THERE
WERE FOUR MATTERS WHICH WERE UNRESOLVED BETWEEN THE RESPONDENT AND THE
COMPLAINANT, ONE OF WHICH WAS "THE DELAY TO /SIC/ CONSULTING ON THE
OFFICE OF SAFETY REORGANIZATION IN A TIMELY MANNER." SUBSEQUENTLY, ON
AUGUST 12, 1972, THE COMPLAINANT NOTIFIED THE RESPONDENT THAT IF THE
FOUR MATTERS SET FORTH IN ITS LETTER OF AUGUST 10 WERE NOT RESOLVED AT
THE NEXT REGULAR LABOR-MANAGEMENT COMMITTEE MEETING SCHEDULED FOR THE
WEEK OF SEPTEMBER 18, 1972, AN UNFAIR LABOR PRACTICE CHARGE WOULD BE
FILED AGAINST THE RESPONDENT. THEREAFTER, ON AUGUST 17, 1972, A SPECIAL
MEETING WAS CALLED BY THE RESPONDENT WHICH WAS ATTENDED BY THE
COMPLAINANT'S EXECUTIVE COMMITTEE AND SEVERAL REPRESENTATIVES OF THE
RESPONDENT, INCLUDING ITS ADMINISTRATOR. THE EXECUTIVE COMMITTEE WAS
BRIEFED AS TO THE PROPOSED REORGANIZATION PLAN. AT THAT TIME, THE
COMPLAINANT INQUIRED IF THE ORGANIZATION DEPICTED DURING THE BRIEFING
WAS DEFINITE, AND IT WAS INFORMED THAT THE PROPOSED STRUCTURE
REPRESENTED THE RESPONDENT'S "BEST THINKING AT THE TIME." HOWEVER, THE
RESPONDENT ADVISED THAT THE PLAN WAS FLEXIBLE IN ORDER TO ALLOW FOR ANY
NECESSARY CHANGES IN THE EVENT PROBLEMS AROSE, BUT ASSURED THE
COMPLAINANT THAT THE LATTER WOULD BE NOTIFIED BEFORE ANY SUCH CHANGES
WERE MADE.
ALTHOUGH THE RECORD REVEALS THAT THE COMPLAINANT'S EXECUTIVE
COMMITTEE WAS NOT SATISFIED WITH THE INFORMATION RECEIVED AND FELT THAT
THE INFORMATION PRESENTED WAS INSUFFICIENT TO COMMENT UPON
INTELLIGENTLY, IT DID NOT EXPRESS THESE VIEWS TO THE ADMINISTRATOR OR
SEEK FURTHER ELABORATION. UPON LEAVING THE MEETING, THE COMPLAINANT'S
WASHINGTON OFFICE VICE-PRESIDENT STATED THAT IN HIS OPINION
"CONSULTATION" AS DEFINED FOR THE EXECUTIVE COMMITTEE BY THE AFGE
NATIONAL OFFICE HAD NOT TAKEN PLACE.
IN A LETTER DATED AUGUST 21, 1972, TO THE RESPONDENT, THE COMPLAINANT
AGAIN REQUESTED CONSULTATION ON THE REORGANIZATION OF THE OFFICE OF
SAFETY AS THE REORGANIZATION PROGRESSED. ON AUGUST 22, 1972, THE
RESPONDENT FORWARDED TO THE COMPLAINANT'S EXECUTIVE COMMITTEE SIX COPIES
OF THE REORGANIZATION PLAN, PRESENTED AT THE MEETING OF AUGUST 17,
TOGETHER WITH A COPY OF A LETTER PREPARED FOR DISTRIBUTION TO EACH
EMPLOYEE OF THE OFFICE OF SAFETY TO ACQUAINT THEM AS TO THE LATEST
INFORMATION REGARDING THE REORGANIZATION. THE LETTER ADVISED THE
EMPLOYEES THAT THE COMPLAINANT'S OFFICERS HAD BEEN SIMILARLY INFORMED ON
AUGUST 17, 1972. /2/
ON AUGUST 22, 1972, THE RESPONDENT NOTIFIED THE COMPLAINANT THAT THE
FOUR MATTERS CONSIDERED BY THE COMPLAINANT TO BE UNRESOLVED WOULD BE
ENTERTAINED, AMONG OTHER MATTERS, AS AGENDA ITEMS DURING THE REGULAR
LABOR-MANAGEMENT COMMITTEE MEETING SCHEDULED FOR THE WEEK OF SEPTEMBER
18, 1972, WHICH MEETING SUBSEQUENTLY WAS POSTPONED UNTIL OCTOBER 3,
1972. /3/ AT THIS MEETING, THE COMPLAINANT RECIEVED NO FURTHER
INFORMATION CONCERNING THE REORGANIZATION THAN IT HAD RECEIVED IN
AUGUST, NOR DID IT SPECIFICALLY REQUEST ANY FURTHER INFORMATION. IN
THIS REGARD, THE RECORD REVEALS THAT THE EXECUTIVE COMMITTEE VIEWED THE
INFORMATION SUPPLIED AS HAVING "VERY LITTLE VALUE AND REALLY TOLD THEM
NOTHING THAT THEY COULD COMMENT ON." AT A SUBSEQUENT FEDERAL RAILROAD
ADMINISTRATION REGIONAL CONFERENCE HELD ON OCTOBER 19, 1972, WHICH THE
COMPLAINANT ATTENDED, NO FURTHER INFORMATION WAS FURNISHED ON THE OFFICE
OF SAFETY HEADQUARTERS REORGANIZATION.
THEREAFTER, ON NOVEMBER 6, 1972, A MEMORANDUM WAS ISSUED BY THE
RESPONDENT TO ALL EMPLOYEES OF THE OFFICE OF SAFETY. THIS MEMORANDUM
HAD ORGANIZATIONAL CHARTS ATTACHED THERETO AND STATED, IN PERTINENT
PART:
"PERSONNEL CHANGES ARE BEING MADE TO SUCCESSFULLY IMPLEMENT THE
EXPANDED SAFETY
PROGRAM. THE ATTACHED STAFFING PLAN LISTS TEMPORARY PERSONNEL
ASSIGNMENTS EFFECTIVE NOVEMBER
13, 1972, PENDING DEVELOPMENT AND CLASSIFICATION OF ALL NEW OR
REVISED POSITION
DESCRIPTIONS. FINAL DECISIONS ON PERSONNEL ASSIGNMENTS WILL NOT BE
MADE UNTIL ALL POSITIONS
HAVE BEEN CLASSIFIED. CLASSIFICATIONS SHOULD BE COMPLETED WITHIN THE
NEXT TWO MONTHS AND ALL
PERSONNEL ACTIONS RESULTING FROM THE REORGANIZATION WILL BE COMPLETED
BY FEBRUARY 13, 1973."
THIS NOVEMBER 6, 1972, MEMORANDUM WAS RECEIVED BY THE COMPLAINANT AT
3:30 P.M. ON FRIDAY, NOVEMBER 10, 1972; THE PERSONNEL ASSIGNMENTS
BECAME EFFECTIVE ON THE FOLLOWING MONDAY, NOVEMBER 13, 1972.
ON NOVEMBER 20, 1972, AN UNFAIR LABOR PRACTICE CHARGE WAS SERVED ON
THE RESPONDENT ALLEGING VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
ORDER ON THE BASIS THAT THE RESPONDENT, ON NOVEMBER 13, 1972, HAD
IMPLEMENTED THE REORGANIZATION WITHOUT GOOD FAITH CONSULTATION WITH THE
COMPLAINANT. A LETTER OF NOVEMBER 29, 1972, FROM THE COMPLAINANT TO THE
RESPONDENT, SET FORTH BACKGROUND INFORMATION CONCERNING THE RESPONDENT'S
ALLEGED FAILURE TO CONSULT AND INDICATED THE COMPLAINANT'S POSITION
THEREON. /4/ THE RESPONDENT'S FINAL DECISION ON THE CHARGE WAS
TRANSMITTED TO THE COMPLAINANT IN A LETTER OF JANUARY 23, 1973.
BY LETTER DATED JANUARY 3, 1973, THE COMPLAINANT'S VICE-PRESIDENT AND
WASHINGTON GRIEVANCE CHAIRMAN COMPLAINED TO THE RESPONDENT CONCERNING
THE LATTER'S PROCEDURAL VIOLATIONS OF FEDERAL PERSONNEL REGULATIONS IN
THE IMPLEMENTATION OF THE REORGANIZATION OF THE OFFICE OF SAFETY. THE
COMPLAINANT ASKED THAT CORRECTIVE ACTION BE TAKEN AND THAT IT BE ADVISED
AS TO HOW THE VIOLATIONS WERE RESOLVED. SUBSEQUENTLY, AT THE REGULAR
MEETING OF THE LABOR-MANAGEMENT COMMITTEE ON FEBRUARY 15, 1973, THE
COMPLAINANT WAS BRIEFED ON THE STATUS OF THE REORGANIZATION BY THE
RESPONDENT'S PERSONNEL DIVISION CHIEF. THE MINUTES OF THE MEETING
REPORT THAT:
" . . . THE UNION INDICATED THEY WERE ADVISED NOT TO DISCUSS THE
REORGANIZATION BECAUSE OF
ITS POSSIBLE IMPACT ON A PENDING ARBITRATION CASE. THE BRIEFING WAS
HELD AFTER FRA STATED
THAT THE UNION COULD ACCEPT INFORMATION AND ASK QUESTIONS WITHOUT
INDICATING THEIR POSITION ON
ANY ITEM DISCUSSED BY FRA. FRA INDICATED THAT SOME POSITIONS WILL
HAVE HIGHER GRADES AND PLANS
ARE THAT NO INDIVIDUALS WILL BE RIF'D OR DEMOTED AS A CONSEQUENCE OF
THIS REORGANIZATION
. . . "
ON MARCH 19, 1973, THE SUBJECT COMPLAINT WAS FILED.
ALL OF THE FACTS AND POSITIONS SET FORTH ABOVE ARE DERIVED FROM THE
PARTIES' STIPULATION AND ACCOMPANYING EXHIBITS.
THE RESPONDENT CONTENDS THAT IT ACTED IN ACCORDANCE WITH ITS BELIEF
THAT UNDER SECTION 11(B) OF THE ORDER IT WAS NOT OBLIGATED TO MEET AND
CONFER ON THE MATTERS HEREIN INVOLVED WHICH CONCERN ITS MISSION, ITS
BUDGET, AND ITS ORGANIZATION. MOREOVER, THE RESPONDENT MAINTAINS THAT
IT FULLY INFORMED THE COMPLAINANT, IN A TIMELY MANNER, OF THE
REORGANIZATION OF THE OFFICE OF SAFETY AS THE SPECIFIC CHANGES BECAME
KNOWN TO IT, WITH "AMPLE OPPORTUNITY /FOR THE COMPLAINANT/ TO BRING
FORTH COMMENTS ON THE IMPACT THE REORGANIZATION MIGHT HAVE ON THE
WORKING CONDITIONS OF THE EMPLOYEES IN THE BARGAINING UNIT." ON THE
OTHER HAND, THE COMPLAINANT ASSERTS THAT THE RESPONDENT DISREGARDED ITS
OBLIGATIONS UNDER THE ORDER TO DEAL IN GOOD FAITH AND FAILED TO ENTER
INTO NEGOTIATIONS OVER THE IMPACT OF THE REORGANIZATION IN ACCORDANCE
WITH THE PARTIES' NEGOTIATED AGREEMENT. /5/
UNDER THE CIRCUMSTANCES OF THIS CASE, I FIND THAT UNDER SECTIONS
11(B) AND 12(B) OF THE ORDER THE RESPONDENT WAS UNDER NO OBLIGATION TO
MEET AND CONFER WITH THE COMPLAINANT WITH REGARD TO ITS DECISION TO
REORGANIZE THE OFFICE OF SAFETY. /6/ HOWEVER, THE RESPONDENT'S
MEMORANDUM TO "ALL EMPLOYEES" DATED NOVEMBER 6, 1972, ANNOUNCING THE
REORGANIZATION OF THE OFFICE OF SAFETY /7/ TO WHICH WERE ATTACHED
ORGANIZATIONAL CHARTS AND A STAFFING PLAN LISTING TEMPORARY PERSONNEL
ASSIGNMENTS WHICH WERE TO BECOME EFFECTIVE ON MONDAY, NOVEMBER 13, 1972,
RAISES QUESTIONS REGARDING THE RESPONDENT'S OBLIGATION TO MEET AND
CONFER IN GOOD FAITH ON THE PROCEDURES TO BE OBSERVED IN TAKING THE
ACTION INVOLVED AND ON THE IMPACT OF ITS REORGANIZATION DECISION ON
EMPLOYEES ADVERSELY AFFECTED BY SUCH DECISION. THUS, IT HAS BEEN FOUND
IN PRIOR DECISIONS THAT DESPITE THE FACT THAT THERE IS NO OBLIGATION TO
MEET AND CONFER ON A PARTICULAR MANAGEMENT DECISION, AN EXCLUSIVE
REPRESENTATIVE SHOULD BE AFFORDED THE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, AS TO THE PROCEDURES
MANAGEMENT INTENDS TO OBSERVE IN EFFECTUATING ITS DECISION, AND AS TO
THE IMPACT OF SUCH DECISIONS ON THOSE EMPLOYEES ADVERSELY AFFECTED. /8/
IN THE CASE HEREIN, I FIND THAT THE EVIDENCE ESTABLISHES THAT THE
RESPONDENT'S CONDUCT WAS INCONSISTENT WITH THESE OBLIGATIONS. MOREOVER,
ARTICLE II, SECTION D, SUBSECTIONS 4 AND 6, OF THE PARTIES' NEGOTIATED
AGREEMENT, SET FORTH ABOVE AT FOOTNOTE 5, PROVIDES THAT BEFORE ANY
CHANGES IN REGULATIONS AND PRACTICES AS THEY AFFECT EMPLOYEES IN THE
BARGAINING UNIT ARE MADE, THE RESPONDENT WILL DISCUSS THESE CHANGES WITH
THE COMPLAINANT; AND, FURTHER, THAT IT WILL NOTIFY THE COMPLAINANT AS
FAR IN ADVANCE AS POSSIBLE OF IMPENDING ACTIONS WHICH WOULD AFFECT THE
JOBS OR WORKING CONDITIONS OF EMPLOYEES COVERED BY THE AGREEMENT.
IN MY VIEW, THE RESPONDENT'S OBLIGATION TO MEET AND CONFER SET FORTH
ABOVE WAS NOT MET BY AFFORDING THE COMPLAINANT NOTIFICATION OF PERSONNEL
REASSIGNMENTS WHICH WAS RECEIVED ON THE FRIDAY AFTERNOON PRIOR TO THE
EFFECTIVE DATE OF SUCH REASSIGNMENTS ON THE FOLLOWING MONDAY. THUS, THE
RIGHT TO ENGAGE IN A DIALOGUE WITH RESPECT TO MATTERS FOR WHICH THERE IS
AN OBLIGATION TO MEET AND CONFER BECOMES MEANINGFUL ONLY WHEN AGENCY
MANAGEMENT HAS AFFORDED THE EXCLUSIVE REPRESENTATIVE REASONABLE
NOTIFICATION AND AN AMPLE OPPORTUNITY TO EXPLORE FULLY THE MATTERS
INVOLVED PRIOR TO TAKING ACTION. /9/ AS NOTED BY THE ADMINISTRATIVE LAW
JUDGE IN FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, CITED ABOVE, WHOSE
REPORT AND RECOMMENDATIONS WAS ADOPTED BY THE ASSISTANT SECRETARY, "IF
THE UNION CANNOT HAVE A VOICE IN THE PROCESS OF ASSIGNING EMPLOYEES IN
ANY RESPECT WHATSOEVER, ITS CAPACITY TO ACT AS A BARGAINING
REPRESENTATIVE IS RENDERED FUTILE AND MEANINGLESS."
UNDER ALL OF THESE CIRCUMSTANCES, AND IN THE ABSENCE OF ANY EVIDENCE
OF AN OVERRIDING EXIGENCY WHICH WOULD HAVE REQUIRED IMMEDIATE ACTION, I
FIND THAT THE RESPONDENT'S FAILURE TO MEET AND CONFER WITH THE
COMPLAINANT REGARDING THE PROCEDURES TO BE FOLLOWED IN THE REASSIGNMENT
OF EMPLOYEES PURSUANT TO THE REORGANIZATION, AS WELL AS THE IMPACT OF
THE REASSIGNMENT ON THE EMPLOYEES ADVERSELY AFFECTED, CONSTITUTED A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
FURTHER, I FIND THAT THE RESPONDENT'S FAILURE TO MEET AND CONFER WITH
THE COMPLAINANT 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.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND 19(A)(6) 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 FEDERAL RAILROAD
ADMINISTRATION SHALL:
1. CEASE AND DESIST FROM:
INSTITUTING A REASSIGNMENT OF EMPLOYEES REPRESENTED EXCLUSIVELY BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2814, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT NOTIFYING THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2814, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN REACHING
THE DECISION AS TO WHO WILL BE SUBJECT TO THE REASSIGNMENT, AND ON THE
IMPACT THE REASSIGNMENT WILL HAVE ON THE 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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2814, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED
REASSIGNMENT OF EMPLOYEES AND, UPON REQUEST, MEET AND CONFER IN GOOD
FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN REACHING THE DECISION AS TO
WHO WILL BE SUBJECT TO THE REASSIGNMENT, AND ON THE IMPACT THE
REASSIGNMENT WILL HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION.
(B) POST AT ITS FACILITY AT THE FEDERAL RAILROAD ADMINISTRATION
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 ADMINISTRATOR
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
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.
DATED, WASHINGTON, D.C.
JULY 31, 1974
/1/ ARTICLE IV OF THE AGREEMENT PROVIDES FOR THE ESTABLISHMENT OF A
LABOR-MANAGEMENT COMMITTEE. THE ARTICLE STATES, IN PERTINENT PART,
"...THIS COMMITTEE WILL MEET PERIODICALLY, NORMALLY NOT LESS THAN ONCE
EVERY TWO MONTHS, TO CONSULT WITH REGARD TO PERSONNEL POLICIES AND
PRACTICES AND MATTER AFFECTING WORKING CONDITIONS OF THE EMPLOYEES IN
THE UNIT. THIS COMMITTEE WILL CONSIST OF FOUR UNION AND FOUR EMPLOYER
REPRESENTATIVES..."
THE RECORD REVEALS THAT REGULAR MEETINGS OF THE COMMITTEE WERE HELD
ON MARCH 8, MAY 8, JULY 19, OCTOBER 3 (POSTPONED FROM SEPTEMBER), AND
DECEMBER 12, 1972, AND ON FEBRUARY 15 AND MAY 1, 1973.
/2/ THE LETTER STATED IN PART: "THE PLAN IS PROPOSED AND SUBJECT TO
POSSIBLE REVISIONS STILL, BUT IN ESSENCE IT REPRESENTS OUR BEST THINKING
TO DATE TOWARDS IMPLEMENTING THE SECRETARY'S RECENT STUDY OF OUR FIELD
AND HEADQUARTERS ORGANIZATION. WE ARE PRESENTLY WORKING TO FLESH OUT
THIS PLAN IN MORE DETAIL AND EXPECT TO HAVE MORE INFORMATION FOR YOU IN
THE NEAR FUTURE...."
/3/ ON OCTOBER 1, 1972, A MEETING WAS HELD BETWEEN THE RESPONDENT AND
REPRESENTATIVES OF PRIVATE RAILROAD UNIONS. A COPY OF A DOT NOTICE
REGARDING THE REORGANIZATION OF THE OFFICE OF SAFETY WITH A FUNCTIONAL
STATEMENT ON SUCH REORGANIZATION WAS SUBMITTED TO THE UNIONS. ALTHOUGH
A COPY OF THIS DOCUMENT WAS NOT SENT TO THE COMPLAINANT UNTIL NOVEMBER
14, 1972, THE COMPLAINANT ACQUIRED A COPY FOLLOWING THE OCTOBER 1, 1972,
MEETING FROM ONE OF THE RAILROAD UNION REPRESENTATIVES AND, THEREFORE,
HAD KNOWLEDGE OF ITS CONTENTS BEFORE THE OCTOBER 3, 1972, MEETING.
/4/ THE LETTER STATED IN PART: " . . . AT EVERY LABOR-MANAGEMENT
CONSULTATION WE HAVE OFFERED OUR ASSISTANCE AND HELPFUL SUGGESTIONS TO
THE MATERIAL SHOWN US WITHOUT OBJECTING TO ANYTHING. YET AT THE SAME
TIME YOUR SUBORDINATES ARE MAKING DECISIONS AND IMPLEMENTING CHANGES IN
WORKING CONDITIONS ABOUT WHICH THE UNION HAS NOT BEEN CONSULTED AND
WHICH MAY VITALLY AFFECT EMPLOYEES. . . . THE UNION DOES NOT DENY YOUR
RIGHT TO REORGANIZE THE OFFICE UNDER YOUR JURISDICTION, BUT WE DO DENY
YOUR RIGHT TO IMPLEMENT THESE REORGANIZATIONS WITHOUT CONSULTATION WITH
THE UNION. AT OUR FIRST CONSULTATION YOU GAVE THE UNION YOUR ASSURANCE
THAT WE WOULD BE CONSULTED BEFORE ANY PART OF THE REORGANIZATION OF THE
OFFICE OF SAFETY WAS IMPLEMENTED, BUT THIS HAS NOT BEEN THE CASE. . . "
/5/ ARTICLE II OF THE AGREEMENT, ENTITLED "MUTUAL RIGHTS AND
OBLIGATIONS OF THE PARTIES," SECTION D, SUBSECTIONS 4 AND 6 STATES:
SUBSECTION 4. THE EMPLOYER AGREES TO DISCUSS BEFOREHAND WITH THE
UNION CHANGES IN REGULATIONS AND PRACTICES AS THEY AFFECT EMPLOYEES IN
THE BARGAINING UNIT. TO THE EXTENT THAT THERE IS DISAGREEMENT AND THAT
SUCH CHANGES ARE NEGOTIABLE, THE FRA AGREES TO NEGOTIATE THE CHANGES
WITH THE UNION AT THE NEXT REGULAR BARGAINING SESSION THEREAFTER.
SUBSECTION 6. THE EMPLOYER AGREES, THROUGH ESTABLISHED CHANNELS FOR
UNION-MANAGEMENT RELATIONSHIPS, TO NOTIFY THE UNION AS FAR IN ADVANCE AS
POSSIBLE OF IMPENDING ACTIONS WHICH WILL AFFECT THE JOBS OR WORKING
CONDITIONS OF EMPLOYEES COVERED BY THE AGREEMENT. THE EMPLOYER AND THE
UNION WILL ADVISE THEIR OFFICIALS, SUPERVISORS AND REPRESENTATIVES OF
THEIR OBLIGATION TO DEMONSTRATE AN AFFIRMATIVE WILLINGNESS TO CONSULT,
WHILE MAINTAINING NECESSARY NEUTRALITY ON QUESTIONS OF UNION MEMBERSHIP.
/6/ CF. UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289 AND
FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 329. CF.
ALSO VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC
NO. 71A-31, AND NAVAL PUBLIC CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56.
/7/ AS NOTED ABOVE, THE COMPLAINANT DID NOT RECEIVE THIS INFORMATION
UNTIL FRIDAY, NOVEMBER 10, 1972, AT 3:00 P.M.
/8/ SEE THE CASES CITED ABOVE AT FOOTNOTE 6. SEE ALSO U.S.
DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS DATA
CENTER, ALBUQUERQUE, NEW MEXICO, A/SLMR NO. 341.
/9/ CF. NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 246.
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH BY INSTITUTING A
REASSIGNMENT OF EMPLOYEES EXCLUSIVELY REPRESENTED BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2814, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, WITHOUT NOTIFYING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2814, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
AND AFFORDING SUCH REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO
THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN REACHING THE DECISION AS TO WHO WILL BE
SUBJECT TO THE REASSIGNMENT, AND ON THE IMPACT THE REASSIGNMENT WILL
HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
WE WILL NOTIFY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2814, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED
REASSIGNMENT OF EMPLOYEES AND, UPON REQUEST, MEET AND CONFER IN GOOD
FAITH, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN REACHING THE DECISION AS TO
WHO WILL BE SUBJECT TO THE REASSIGNMENT, AND ON THE IMPACT THE
REASSIGNMENT WILL HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION.
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: . . .
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 14120, GATEWAY BUILDING, 3535 MARKET
STREET, PHILADELPHIA, PENNSYLVANIA 19104.
4 A/SLMR 417; P. 493; CASE NO. 60-3444(CA); JULY 31, 1974.
INTERNAL REVENUE SERVICE,
OMAHA DISTRICT OFFICE
A/SLMR NO. 417
THIS CASE INVOLVES A COMPLAINT FILED BY THE NATIONAL TREASURY
EMPLOYEES UNION (NTEU) AND CHAPTER NO. 003 (COMPLAINANT) AGAINST THE
INTERNAL REVENUE SERVICE, OMAHA DISTRICT OFFICE (RESPONDENT), 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 SECRETARY'S REGULATIONS AFTER THE PARTIES SUBMITTED A
STIPULATION OF FACTS AND EXHIBITS TO THE ASSISTANT REGIONAL DIRECTOR.
THE COMPLAINT ALLEGED THAT THE RESPONDENT'S FAILURE TO RECOGNIZE A
RETIRED EMPLOYEE AS THE CHIEF REPRESENTATIVE OF CHAPTER NO. 003 WAS
VIOLATIVE OF THE ORDER.
THE RESPONDENT CONTENDED THAT: (1) THE PARTIES INTENDED, AS
DEMONSTRATED BY THE TERMS OF THE NEGOTIATED AGREEMENT, THAT THE CHIEF
REPRESENTATIVE WOULD BE AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE;
(2) THAT AS THE DISPUTE INVOLVED THE INTERPRETATION AND APPLICATION OF A
NEGOTIATED AGREEMENT, THE ASSISTANT SECRETARY LACKS JURISDICTION; AND
(3) THAT, EVEN IF THE DISPUTE INVOLVED EXECUTIVE ORDER RIGHTS, SUCH
RIGHTS WERE WAIVED BY VIRTUE OF THE PARTIES' NEGOTIATED AGREEMENT.
THE ASSISTANT SECRETARY CONCLUDED THAT IN ACCORDANCE WITH PRIOR
HOLDINGS NO WITHDRAWAL OF JURISDICTION WAS INTENDED IN SITUATIONS SUCH
AS THIS WHERE AT ISSUE IS THE QUESTION WHETHER A PARTY TO AN AGREEMENT
HAS GIVEN UP RIGHTS GRANTED UNDER THE ORDER. WITH RESPECT TO THE
QUESTION WHETHER THE COMPLAINANT HAD CLEARLY AND UNMISTAKABLY WAIVED ITS
RIGHT UNDER THE PARTIES' NEGOTIATED AGREEMENT TO DESIGNATE A RETIRED
EMPLOYEE AS ITS CHIEF REPRESENTATIVE, THE ASSISTANT SECRETARY FOUND THAT
WHILE ARGUABLY THE CONTRACTUAL LANGUAGE INVOLVED COULD BE INTERPRETED IN
THE ABOVE MANNER OTHER INTERPRETATIONS WERE POSSIBLE, AS EVIDENCED BY
THE TERMS OF A SUBSEQUENT MEMORANDUM OF UNDERSTANDING SIGNED BY THE
PARTIES WHICH STATED ONLY THAT COMPLAINANT WOULD "ENCOURAGE THE
APPOINTMENT OF BARGAINING UNIT EMPLOYEES AS REPRESENTATIVES," AND DID
NOT CLEARLY AND UNMISTAKABLY INDICATE THAT ANY NON-BARGAINING UNIT
REPRESENTATIVE HAD TO BE ON-DUTY INTERNAL REVENUE SERVICE EMPLOYEES.
NOR WAS A LETTER OF THE COMPLAINANT'S COUNSEL CONSIDERED DISPOSITIVE OF
THE MATTER. WHILE THE LETTER STATED THAT IT WAS "INTENDED THAT THE
CHIEF REPRESENTATIVE WOULD BE A UNIT EMPLOYEE," IT FURTHER INDICATED
THAT THE APPOINTMENT OF A RETIREE AS CHIEF REPRESENTATIVE WAS NOT
PROHIBITED BY THE PARTIES' NEGOTIATED AGREEMENT. UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE COMPLAINANT HAD
NOT CLEARLY AND UNMISTAKABLY WAIVED ITS RIGHT TO CHOOSE A RETIRE
EMPLOYEE AS A CHIEF REPRESENTATIVE. HE CONCLUDED, THEREFORE, THAT AN
ATTEMPT BY THE RESPONDENT TO DICTATE THE SELECTION OF THE COMPLAINANT'S
CHIEF REPRESENTATIVE, IN EFFECT, CONSTITUTED AN ATTEMPT TO INTERFERE
IMPROPERLY IN THE INTERNAL AFFAIRS OF THE COMPLAINANT, AND ALSO
CONSTITUTED AN IMPROPER REFUSAL TO MEET AND CONFER WITH AN APPROPRIATE
REPRESENTATIVE OF THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES.
ACCORDINGLY, THE ASSISTANT SECRETARY FOUND THAT RESPONDENT'S CONDUCT
HEREIN VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
INTERNAL REVENUE SERVICE,
OMAHA DISTRICT OFFICE
AND
NATIONAL TREASURY EMPLOYEES UNION
(NTEU) AND CHAPTER NO. 003
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES CULLEN P. KEOUGH'S ORDER
TRANSFERRING CASE TO THE ASSISTANT SECRETARY OF LABOR PURSUANT TO
SECTION 206.5(A) OF THE ASSISTANT SECRETARY'S REGULATIONS. /1/
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 SUBJECT COMPLAINT, AS AMENDED, ALLEGES THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY ITS FAILURE TO
RECOGNIZE A RETIRED EMPLOYEE AS THE CHIEF REPRESENTATIVE OF CHAPTER NO.
003. IN THIS REGARD, THE COMPLAINANT CONTENDS THAT IT HAS THE RIGHT TO
APPOINT WHOMEVER IT CHOOSES AS ITS CHIEF REPRESENTATIVE AND THAT THE
RESPONDENT HAS AN OBLIGATION TO RECOGNIZE THAT CHOICE. THE RESPONDENT,
ON THE OTHER HAND, CONTENDS: (1) THAT THE PARTIES INTENDED, AS
DEMONSTRATED BY THE TERMS OF THEIR NEGOTIATED AGREEMENT, THAT THE CHIEF
REPRESENTATIVE WOULD BE AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE;
(2) THAT AS THE DISPUTE INVOLVED HEREIN ARISES OVER THE INTERPRETATION
AND APPLICATION OF THE PARTIES' NEGOTIATED AGREEMENT, THE ASSISTANT
SECRETARY LACKS JURISDICTION TO CONSIDER THE MATTER; /2/ AND (3) THAT,
EVEN IF THE DISPUTE INVOLVED EXECUTIVE ORDER RIGHTS, SUCH RIGHTS WERE
WAIVED BY VIRTUE OF THE PARTIES' NEGOTIATED AGREEMENT.
ON OR ABOUT APRIL 5, 1972, THE PARTIES ENTERED INTO A NEGOTIATED
AGREEMENT CONTAINING, AMONG OTHER THINGS, A PROVISION REGARDING UNION
REPRESENTATION. ACCORDING TO THE AGREEMENT, THE COMPLAINANT COULD
DESIGNATE A CERTAIN NUMBER OF REPRESENTATIVES DEPENDING ON THE SIZE OF
THE INTERNAL REVENUE SERVICE DISTRICT INVOLVED. ALSO, ARTICLE 6,
SECTION 2.B. OF THE NEGOTIATED AGREEMENT STATES THAT:
IN GENERAL, THE REPRESENTATIVES WILL BE EMPLOYED IN THE
ORGANIZATIONAL SEGMENT EACH
REPRESENTS. THE UNION WILL SUPPLY THE
EMPLOYER WITH THE NAMES OF THE REPRESENTATIVES WHICH WILL BE POSTED
ON APPROPRIATE BULLETIN
BOARDS. IT WILL BE THE DUTY OF THE UNION TO NOTIFY THE EMPLOYER OF
ANY CHANGES IN THE ROSTER.
FURTHER, ARTICLE 6, SECTIONS 3 AND 4 OF THE AGREEMENT ESTABLISH THE
ADMINISTRATIVE TIME AND LEAVE POLICY FOR UNION REPRESENTATIVES,
INCLUDING THE REPRESENTATIVE IN EACH DISTRICT DESIGNATED BY THE UNION AS
CHIEF REPRESENTATIVE.
ON JULY 28, 1972, THE PARTIES SIGNED A MEMORANDUM OF UNDERSTANDING,
THE PURPOSE OF WHICH WAS "TO CLARIFY THE UNION'S ENTITLEMENT TO
REPRESENTATIVES WHO WILL BE ELIGIBLE TO USE OFFICIAL TIME FOR UNION
ACTIVITY...." ALTHOUGH UNDER THE MEMORANDUM OF UNDERSTANDING THE
RESPONDENT WAS "NOT OBLIGATED TO RECOGNIZE UNION REPRESENTATIVES WHO ARE
NOT BARGAINING UNIT EMPLOYEES FOR PURPOSES OF THE TIME ALLOTMENTS
PROVIDED FOR UNDER ARTICLE 6," IT AGREED "TO ADMINISTRATIVELY GRANT TO
REPRESENTATIVES WHO ARE OUTSIDE THE BARGAINING UNIT AND WHO ARE EMPLOYED
IN THE SAME DISTRICT AS THE GRIEVANT THE TIME PROVIDED FOR UNDER ARTICLE
6, SECTION 3C(1) AND (2)" OF THE NEGOTIATED AGREEMENT. THE COMPLAINANT,
IN TURN, AGREED "TO ENCOURAGE THE APPOINTMENT OF BARGAINING UNIT
EMPLOYEES AS REPRESENTATIVES."
THEREAFTER, ON JANUARY 31, 1973, PURSUANT TO ARTICLE 6, SECTION 2.B.
OF THE NEGOTIATED AGREEMENT, THE COMPLAINANT NOTIFIED THE RESPONDENT
THAT FRED B. LORENZ, A RETIRED EMPLOYEE, HAD BEEN DESIGNATED AS CHIEF
REPRESENTATIVE OF NTEU CHAPTER NO. 003. BY LETTER DATED FEBRUARY 6,
1973, THE RESPONDENT, NOTING THE RETIRED STATUS OF LORENZ, REFUSED TO
RECOGNIZE THE LATTER AS CHIEF REPRESENTATIVE BECAUSE HE WAS NOT AN
EMPLOYEE OF THE INTERNAL REVENUE SERVICE. THE RESPONDENT BASED ITS
REJECTION ON THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES, STATING THAT
IT REVEALED "NO PROVISION FOR NON-IRS EMPLOYEES TO SERVE AS UNION
REPRESENTATIVES...." IN A LETTER DATED FEBRUARY 15, 1973, THE
COMPLAINANT'S COUNSEL WROTE CHAPTER PRESIDENT MORTON AND STATED, IN
PART, THAT, "WHEN NEGOTIATING THE AGREEMENT (THE PARTIES) INTENDED THAT
THE CHIEF REPRESENTATIVE WOULD BE A UNIT EMPLOYEE.... HOWEVER, THE
AGREEMENT DOES NOT PROHIBIT THE APPOINTMENT OF A RETIREE AS CHIEF
REPRESENTATIVE." THE LETTER ALSO INDICATED THE COMPLAINANT'S BELIEF THAT
IT HAD THE RIGHT TO APPOINT WHOMEVER IT CHOSE AS ITS REPRESENTATIVE AND
THAT THE RESPONDENT COULD NOT INTERFERE WITH THAT CHOICE.
ALL OF THE FACTS AND POSITIONS SET FORTH ARE DERIVED FROM THE
PARTIES' STIPULATION AND ACCOMPANYING EXHIBITS.
IN MY VIEW, ABSENT A CLEAR AND UNMISTAKABLE WAIVER, A LABOR
ORGANIZATION HOLDING EXCLUSIVE RECOGNITION HAS THE RIGHT TO SELECT ITS
OWN REPRESENTATIVES WHEN DEALING WITH AGENCY MANAGEMENT. /3/ THE
QUESTION PRESENTED HEREIN IS WHETHER, UNDER THE CIRCUMSTANCES OF THIS
CASE, THE COMPLAINANT CLEARLY AND UNMISTAKABLY WAIVED THIS RIGHT. /4/
THE RESPONDENT CONTENDS THAT PURSUANT TO THE LANGUAGE CONTAINED IN
ARTICLE 6, SECTION 2.B. OF THE PARTIES' NEGOTIATED AGREEMENT, THE
COMPLAINANT LIMITED ITS RIGHT IN THE CHOICE OF A REPRESENTATIVE TO
CURRENTLY EMPLOYED INDIVIDUALS. WHILE THE LANGUAGE IN QUESTION ARGUABLY
COULD BE INTERPRETED IN THIS MANNER, OTHER INTERPRETATIONS ARE POSSIBLE
AS EVIDENCED BY THE TERMS OF THE PARTIES' SUBSEQUENT MEMORANDUM OF
UNDERSTANDING OF JULY 28, 1972. THUS, AS NOTED ABOVE, THE MEMORANDUM OF
UNDERSTANDING PROVIDED ONLY THAT COMPLAINANT WOULD "ENCOURAGE THE
APPOINTMENT OF BARGAINING UNIT EMPLOYEES AS REPRESENTATIVES." HOWEVER,
IT DID NOT CLEARLY AND UNMISTAKABLY INDICATE THAT ANY NON-BARGAINING
UNIT REPRESENTATIVES WERE REQUIRED TO BE ON-DUTY INTERNAL REVENUE
SERVICE EMPLOYEES. NOR DO I VIEW THE FEBRUARY 15, 1973, LETTER OF THE
COMPLAINANT'S COUNSEL TO BE DISPOSITIVE OF THIS MATTER. WHILE, AS NOTED
ABOVE, THE LETTER STATES THAT IT WAS "INTENDED THAT THE CHIEF
REPRESENTATIVE WOULD BE A UNIT EMPLOYEE," IT FURTHER INDICATES THAT
APPOINTMENT OF A RETIREE AS CHIEF REPRESENTATIVE WAS NOT PROHIBITED BY
THE PARTIES' NEGOTIATED AGREEMENT.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE COMPLAINANT DID NOT
CLEARLY AND UNMISTAKABLY WAIVE ITS RIGHT TO CHOSE A RETIRED EMPLOYEE AS
A CHIEF REPRESENTATIVE. AND, AS NOTED ABOVE, ABSENT SUCH A WAIVER, THE
COMPLAINANT HAD THE RIGHT TO SELECT SUCH AN INDIVIDUAL AS ITS OWN
REPRESENTATIVE. IN THIS CONTEXT, I VIEW THE ATTEMPT BY THE RESPONDENT
TO DICTATE THE SELECTION OF THE COMPLAINANT'S CHIEF REPRESENTATIVE AS,
IN EFFECT, AN ATTEMPT TO INTERFERE IMPROPERLY IN THE INTERNAL AFFAIRS OF
THE COMPLAINANT, WHICH, IN TURN, RESULTED IN AN INTERFERENCE WITH
EMPLOYEE RIGHTS ASSURED UNDER SECTION 1(A) OF THE ORDER, /5/ AND AS AN
IMPROPER REFUSAL TO MEET AND CONFER WITH APPROPRIATE REPRESENTATIVES OF
THE COMPLAINANT, WHICH IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
RESPONDENT'S EMPLOYEES. ACCORDINGLY, I FIND THAT THE RESPONDENT'S
CONDUCT HEREIN WAS VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER. /6/
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 THE RESPONDENT TO CEASE AND DESIST THEREFROM AND
TAKE 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 INTERNAL REVENUE
SERVICE, OMAHA DISTRICT OFFICE, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO RECOGNIZE THE CHIEF REPRESENTATIVE DESIGNATED BY THE
NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER NO. 003, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES.
(B) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES BY REFUSING
TO RECOGNIZE THE CHIEF REPRESENTATIVE DESIGNATED BY THE NATIONAL
TREASURY EMPLOYEES UNION (NTEU), CHAPTER NO. 003, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES.
(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 POLICIES OF THE ORDER.
(A) UPON REQUEST, RECOGNIZE THE CHIEF REPRESENTATIVE DESIGNATED BY
THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER NO. 003 FOR ITS
OMAHA DISTRICT OFFICE.
(B) POST AT ITS FACILITY AT THE INTERNAL REVENUE SERVICE, OMAHA
DISTRICT 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 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.
(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.
JULY 31, 1974
/1/ ON MARCH 12, 1974, THE ASSISTANT REGIONAL DIRECTOR AMENDED THE
ABOVE ORDER TO INCLUDE TRANSFER OF: (1) THE RESPONDENT'S MOTION TO
DISMISS COMPLAINT AGAINST AGENCY; (2) THE RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT; AND (3) THE COMPLAINANT'S RESPONSE TO THE ABOVE
MOTIONS.
/2/ IN THIS CONNECTION, THE RESPONDENT CONTENDS THAT UNDER SUCH
CIRCUMSTANCES THE PARTIES TO A NEGOTIATED AGREEMENT SHOULD BE LEFT TO
PURSUE THEIR CONTRACTUAL RATHER THAN UNFAIR LABOR PRACTICE REMEDIES.
HOWEVER, AS FOUND PREVIOUSLY, NO WITHDRAWAL OF JURISDICTION BY THE
ASSISTANT SECRETARY WAS INTENDED IN SITUATIONS SUCH AS THIS WHERE AT
ISSUE IS THE QUESTION WHETHER A PARTY TO AN AGREEMENT HAS GIVEN UP
RIGHTS GRANTED UNDER THE ORDER. SEE NASA, KENNEDY SPACE CENTER, KENNEDY
SPACE CENTER, FLORIDA, A/SLMR NO. 223. SEE ALSO VETERANS ADMINISTRATION
CENTER, BATH, NEW YORK, A/SLMR NO. 335. ACCORDINGLY, I REJECT THE
RESPONDENT'S CONTENTION THAT THE COMPLAINT HEREIN SHOULD BE DISMISSED
FOR LACK OF JURISDICTION.
/3/ CF. U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, A/SLMR NO.
242.
/4/ SEE NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA,
CITED ABOVE.
/5/ CF. DEPARTMENT OF THE NAVY, OFFICE OF THE SECRETARY, WASHINGTON,
D.C., A/SLMR NO. 393.
/6/ IN VIEW OF THIS DISPOSITION, THE RESPONDENT'S MOTIONS TO DISMISS
COMPLAINT AGAINST AGENCY AND FOR SUMMARY JUDGMENT ARE HEREBY DENIED.
WE WILL NOT REFUSE TO RECOGNIZE THE CHIEF REPRESENTATIVE DESIGNATED
BY THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER NO. 003 FOR OUR
OMAHA DISTRICT OFFICE.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
REFUSING TO RECOGNIZE THE CHIEF REPRESENTATIVE DESIGNATED BY NATIONAL
TREASURY EMPLOYEES UNION (NTEU), CHAPTER NO. 003, THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE OMAHA DISTRICT OFFICE.
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, UPON REQUEST, RECOGNIZE THE CHIEF REPRESENTATIVE DESIGNATED
BY THE NATIONAL TREASURY EMPLOYEES UNION (NTEU), CHAPTER NO. 003 FOR ITS
OMAHA DISTRICT OFFICE.
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 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 2200, FEDERAL OFFICE BUILDING, 911 WALNUT STREET, KANSAS CITY,
MISSOURI 64106.
4 A/SLMR 416; P. 490; CASE NOS. 63-4757(CA), 63-4758(CA); JULY 16,
1974.
GENERAL SERVICES ADMINISTRATION,
REGION 7, FORT WORTH, TEXAS
A/SLMR 416
THIS PROCEEDING AROSE UPON THE FILING OF SEPARATE UNFAIR LABOR
PRACTICE COMPLAINTS BY TWO EMPLOYEES (COMPLAINANTS) OF THE RESPONDENT
ACTIVITY ALLEGING THAT THE LATTER, THROUGH THE ISSUANCE OF
INSUBORDINATION CITATIONS TO THE COMPLAINANTS FOR THEIR FAILURE TO
ATTEND A GRIEVANCE MEETING, VIOLATED SECTION 19(A)(1) OF THE ORDER IN
THAT SUCH ACTION HAD BEEN MOTIVATED BY DISCRIMINATORY CONSIDERATIONS
AND/OR HAD HAD THE EFFECT OF DISCOURAGING MEMBERSHIP IN THE UNION.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE COMPLAINANTS HAD NOT
OFFERED ANY EVIDENCE TO SUPPORT THE CONTENTION THAT THEIR IMMEDIATE
SUPERVISOR HAD BEEN MOTIVATED BY ANTI-UNION CONSIDERATIONS IN ISSUING
THE INSUBORDINATION CITATIONS, WHICH WERE SUBSEQUENTLY CANCELLED AND
DESTROYED ON THE BASIS OF EXTENUATING CIRCUMSTANCES SURROUNDING THE
INSTRUCTIONS TO ATTEND THE GRIEVANCE MEETING. IN THIS CONNECTION, HE
CREDITED THE IMMEDIATE SUPERVISOR'S DENIAL THAT ANY UNION CONSIDERATIONS
ENTERED INTO HIS ACTIONS IN THIS MATTER. AS THE GRIEVANCE PROCEDURE
INVOLVED WAS AN AGENCY GRIEVANCE PROCEDURE RATHER THAN A NEGOTIATED
GRIEVANCE PROCEDURE, THE ADMINISTRATIVE LAW JUDGE HELD, IN ACCORDANCE
WITH THE DECISION IN OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO,
ILLINOIS, A/SLMR NO. 334, AFFIRMED, IN PERTINENT PART, FLRC NO. 74A-3,
THAT IN THE ABSENCE OF PROBATIVE EVIDENCE INDICATING THAT THE
INSUBORDINATION CITATIONS GIVEN TO THE COMPLAINANTS WERE
DISCRIMINATORILY MOTIVATED OR CONSTITUTED DISPARATE TREATMENT BASED UPON
UNION CONSIDERATIONS, THERE WAS INSUFFICIENT BASIS FOR FINDING A
VIOLATION OF SECTION 19(A)(1). ACCORDINGLY, HE RECOMMENDED THAT THE
COMPLAINTS BE DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THE MATTER, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATION THAT THE COMPLAINTS BE DISMISSED.
GENERAL SERVICES ADMINISTRATION,
REGION 7, FORT WORTH, TEXAS
AND
DAN N. KING
MILES C. FREEMAN
ON MAY 17, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBERG 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 COMPLAINTS AND RECOMMENDING THAT THE COMPLAINTS BE
DISMISSED IN THEIR 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 CASES, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
/1/ CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINANTS IN CASE NOS. 63-4757(CA)
AND 63-4758(CA) BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 16, 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
GENERAL SERVICES ADMINISTRATION,
REGION 7, FORT WORTH, TEXAS
DAN N. KING
MILES C. FREEMAN
JAMES D. LLEWELLYN, ESQ.
LARRY L. HATTAWAY, ESQ.
GENERAL SERVICES ADMINISTRATION
819 TAYLOR STREET
FORT WORTH, TEXAS 76102
MR. DAN N. KING
116 HIGHLAND TERRACE SOUTH
FORT WORTH, TEXAS
MR. MILES C. FREEMAN
P.O. BOX 25
BURLESON, TEXAS
BEFORE: BURTON S. STERNBURG
PURSUANT TO SEPARATE COMPLAINTS FILED ON NOVEMBER 8, 1973, UNDER
EXECUTIVE ORDER 11491, AS AMENDED BY DAN N. KING AND MILES C. FREEMAN,
INDIVIDUALLY, AGAINST GENERAL SERVICES ADMINISTRATION, REGION 7, FORT
WORTH, TEXAS (HEREINAFTER CALLED THE RESPONDENT OR GSA), A NOTICE OF
HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL DIRECTOR FOR
THE KANSAS CITY, MISSOURI, REGION ON MARCH 11, 1974. /1/
THE COMPLAINTS ALLEGE, IN SUBSTANCE, THAT RESPONDENT BY VIRTUE OF ITS
ACTION IN ISSUING INSUBORDINATION CITATIONS TO KING AND FREEMAN FOR
FAILURE TO ATTEND A MEETING ON A GRIEVANCE VIOLATED SECTION 19(A)(1) OF
THE EXECUTIVE ORDER SINCE SUCH ACTION WAS DISCRIMINATORILY MOTIVATED
AND/OR HAD THE EFFECT OF DEMONSTRATING THE FUTILITY OF UNION MEMBERSHIP.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON APRIL 25, 1974, IN FORT
WORTH, TEXAS. 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:
ON MAY 4, 1973, FOLLOWING AN ELECTION, THE INTERNATIONAL FEDERATION
OF FEDERAL POLICE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF "ALL
GUARDS AND FEDERAL PROTECTIVE OFFICERS EMPLOYED BY, AN ASSIGNED TO GSA
REGION 7". AS OF APRIL 25, 1974, THE DATE OF THE HEARING HEREIN, NO
COLLECTIVE BARGAINING AGREEMENT HAD BEEN EXECUTED. ACCORDINGLY, ONLY
THE GSA ESTABLISHED GRIEVANCE PROCEDURE WAS AVAILABLE FOR THE PROCESSING
OF GRIEVANCES.
ON AUGUST 31, 1973, MILES FREEMAN, A MEMBER OF THE GUARD FORCE, FILED
A GRIEVANCE, UNDER THE GSA GRIEVANCE PROCEDURE DIRECTED TO JAY BOLTON,
REGIONAL ADMINISTRATOR FOR GSA, WHEREIN HE ALLEGED THAT A PARTICULAR
INDIVIDUAL HAD BEEN DETAILED BY BUILDING MANAGER CHAPMAN TO A HIGHER
GRADE POSITION WITHOUT THE REQUISITE POSTING OF SUCH POSITION AS
REQUIRED UNDER THE GSA PROMOTION PLAN. ALTHOUGH DAN KING ALSO SIGNED
THE GRIEVANCE AS PRESIDENT, LOCAL 29, I.F.F.P., /2/ THE RECORD DISCLOSES
THAT RESPONDENT RECOGNIZED HIS STATUS ON THE GRIEVANCE AS ONLY THAT OF
FREEMAN'S PERSONAL REPRESENTATIVE. IN THIS LATTER REGARD, STEPHENSON,
RESPONDENT'S LABOR MANAGEMENT RELATIONS OFFICER, CREDIBLY TESTIFIED THAT
GSA HAD NEVER BEEN OFFICIALLY NOTIFIED OF EITHER THE EXISTENCE OF LOCAL
29 OR THE APPOINTMENT OF KING TO ANY OFFICIAL POSITION IN EITHER THE
INTERNATIONAL UNION OR LOCAL 29 PRIOR TO THE EVENTS CONCERNED HEREIN.
NEITHER FREEMAN NOR KING, WHO ALLEGED THAT HE WAS A DULY AUTHORIZED
REPRESENTATIVE OF THE INTERNATIONAL, OFFERED ANY PROBATIVE EVIDENCE TO
THE CONTRARY.
UPON RECEIVING THE ABOVE DESCRIBED GRIEVANCE, STEPHENSON SET A
MEETING THEREON FOR 2 P.M., ON SEPTEMBER 6, 1973, AND NOTIFIED VARIOUS
LOWER ECHELON REPRESENTATIVES TO PASS THE WORD TO FREEMAN AND KING.
THEREAFTER, BUILDING MANAGER CHAPMAN ADVISED CAPTAIN HITTS, WHO IN TURN
ADVISED SERGEANT WASHINGTON, WHO IN TURN ADVISED THE COMPLAINANTS KING
AND FREEMAN AT APPROXIMATELY 8:20 P.M., ON SEPTEMBER 5, 1973, OF THE
SCHEDULED MEETING THE NEXT AFTERNOON. THE NEXT MORNING, SEPTEMBER 6,
1973, AT ABOUT 7:50 A.M., FREEMAN AND KING REQUESTED A FELLOW GUARD,
WHEELER, TO INFORM SERGEANT KESSLER THAT NEITHER OF THEM WOULD ATTEND
THE SCHEDULED MEETING AND THAT THEY REQUESTED THE ANSWER TO THEIR
PENDING GRIEVANCE IN WRITING.
DESPITE RECEIVING THE MESSAGE FROM FREEMAN AND KING THAT THEY WOULD
NOT ATTEND THE SCHEDULED MEETING, CHAPMAN AND STEPHENSON MET AT THE
APPOINTED PLACE AT THE APPOINTED TIME. THEREAFTER, BY "RECORD OF
INFRACTION" DATED SEPTEMBER 7, 1973, CHAPMAN CHARGED BOTH FREEMAN AND
KING WITH "INSUBORDINATION UNDER PENALTY GUIDE I, PARAGRAPH 7:
DELIBERATE REFUSAL TO COMPLY WITH AUTHORIZED INSTRUCTION ISSUED BY A
SUPERVISOR." SUBSEQUENTLY, AFTER FREEMAN AND KING SUBMITTED THEIR
RESPECTIVE ANSWERS TO THE CHARGES, STEWART, REGIONAL COMMISSIONER,
PUBLIC BUILDINGS, REVIEWED THE MATTER, FOUND EXTENUATING CIRCUMSTANCES
SURROUNDING THE INSTRUCTIONS CONCERNING THE MEETING" AND CANCELLED AND
DESTROYED THE PROPOSED "RECORD OF INFRACTION."
ALTHOUGH KING AND FREEMAN CONTENDED AT THE HEARING THAT CHAPMAN'S
ACTION IN ISSUING THE INSUBORDINATION CITATION WAS MOTIVATED BY
ANTI-UNION CONSIDERATIONS, NEITHER COULD OFFER ANY EVIDENCE IN SUPPORT
OF SUCH CONTENTION. CHAPMAN, ON THE OTHER HAND, CREDIBLY DENIED THAT
ANY UNION CONSIDERATIONS ENTERED INTO HIS ACTIONS. FREEMAN AND KING
FURTHER TESTIFIED THAT TO THEIR KNOWLEDGE THIS WAS THE FIRST OCCASION
THAT ANY GUARD HAD FAILED TO HEED A MANAGEMENT REQUEST TO ATTEND A
MEETING.
IN OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO, ILLINOIS,
A/SLMR NO. 334, AFFIRMED IN PERTINENT PART BY THE FEDERAL LABOR
RELATIONS COUNCIL FLRC NO. 74A-3, THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS CONCLUDED THAT "DIFFERENT CONSIDERATIONS
APPLY" TO A UNILATERALLY ESTABLISHED AGENCY GRIEVANCE PROCEDURE THAN TO
A BILATERALLY NEGOTIATED GRIEVANCE PROCEDURE. THE FORMER DOES NOT
RESULT FROM ANY RIGHTS ACCORDED INDIVIDUAL EMPLOYEES OR A LABOR
ORGANIZATION UNDER THE EXECUTIVE ORDER, WHILE THE LATTER OWES ITS
EXISTENCE DIRECTLY TO THE EXECUTIVE ORDER. IN ACCORDANCE WITH SUCH
DISTINCTION, THE ASSISTANT SECRETARY FURTHER CONCLUDED THAT AGENCY
ACTIONS UNDER A NEGOTIATED GRIEVANCE PROCEDURE WHICH MIGHT CONCEIVABLY
DENIGRATE A UNION'S STATUS AND CONSEQUENTLY INTERFERE WITH THE RIGHTS OF
EMPLOYEES IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER, DO NOT, IN THE
ABSENCE OF EVIDENCE OF DISCRIMINATORY MOTIVATION OR DISPARITY OF
TREATMENT BASED ON UNION MEMBERSHIP CONSIDERATIONS, CONSTITUTE SIMILAR
VIOLATIONS WHEN OCCURRING UNDER A UNILATERALLY ESTABLISHED AGENCY
GRIEVANCE PROCEDURE.
INASMUCH AS THE FOREGOING RATIONALE AND CONCLUSIONS WITH RESPECT TO
THE UTILIZATION OF A UNILATERALLY ESTABLISHED AGENCY GRIEVANCE PROCEDURE
APPEAR TO BE EQUALLY APPLICABLE TO THE FACTS PRESENTED HEREIN AND IN THE
ABSENCE OF ANY PROBATIVE EVIDENCE INDICATING THAT THE INSUBORDINATION
CITATIONS GIVEN TO KING AND FREEMAN WERE DISCRIMINATORILY MOTIVATED OR
CONSTITUTED DISPARATE TREATMENT BASED ON UNION CONSIDERATIONS, I FIND
INSUFFICIENT BASIS FOR A 19(A)(1) FINDING.
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I
RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
DATED: MAY 17, 1974
WASHINGTON, D.C.
/1/ THE CASES WERE CONSOLIDATED FOR HEARING BY ORDER DATED MARCH 11,
1974.
/2/ ALTHOUGH NOT COMPLETELY CLEAR FROM THE RECORD, IT APPEARS THAT
KING AND FREEMAN HAD ATTEMPTED TO ESTABLISH LOCAL 29, IFFP. HOWEVER,
THEIR EFFORTS IN THIS DIRECTION WERE UNSUCCESSFUL.
4 A/SLMR 415; P. 484; CASE NO. 71-2520; JULY 12, 1974.
DEPARTMENT OF THE NAVY,
PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON
A/SLMR NO. 415
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
BREMERTON METAL TRADES COUNCIL, METAL TRADES DEPARTMENT, AFL-CIO
(COMPLAINANT) AGAINST THE DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL
SHIPYARD, BREMERTON, WASHINGTON (RESPONDENT). THE COMPLAINT ALLEGED
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE
EXECUTIVE ORDER BY: (A) BARGAINING IN BAD FAITH BECAUSE IT KNEW AT THE
TIME OF THE PARTIES' NEGOTIATIONS THAT IT INTENDED TO CHANGE THE
PRACTICE REGARDING THE ISSUANCE OF PHOTO PASSES TO COUNCIL MEMBERS WHO
WERE NOT OFFICERS OF THE COUNCIL, AND (B) CONDUCT WHICH INTERFERED WITH
AND RESTRAINED EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
THE ORDER, AND WHICH ALSO DISCOURAGED MEMBERSHIP IN THE COMPLAINANT.
THE RESPONDENT MOVED TO DISMISS THE COMPLAINT CONTENDING THAT THE
PRINCIPLE ISSUE IN THE CASE INVOLVED A DISAGREEMENT AS TO THE
INTERPRETATION OF THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT AND
THAT BECAUSE THERE WAS A GRIEVANCE PROCEDURE CONTAINED IN THE AGREEMENT
THE ASSISTANT SECRETARY SHOULD NOT CONSIDER THE PROBLEM IN THE CONTEXT
OF AN UNFAIR LABOR PRACTICE BUT, RATHER, SHOULD LEAVE THE PARTIES TO
THEIR REMEDIES UNDER THEIR AGREEMENT.
THE ADMINISTRATIVE LAW JUDGE DENIED THE MOTION, FINDING THAT THE
SECTIONS OF THE NEGOTIATED AGREEMENT INVOLVED WERE CLEAR AND UNAMBIGUOUS
AND THAT THE ASSISTANT SECRETARY HAD JURISDICTION TO DECIDE THE ISSUES
INVOLVED ON THEIR MERITS. AS TO THE MERITS, HE CONCLUDED THAT THE
EVIDENCE DID NOT SUPPORT A FINDING OF A VIOLATION OF 19(A)(6) OF THE
ORDER, NOTING THAT THE FACT THAT THE RESPONDENT DID NOT CHANGE ITS
PRACTICE OF FREELY ISSUING PHOTO PASSES TO THE COMPLAINANT'S
REPRESENTATIVES UNTIL AFTER THE EFFECTIVE DATE OF THE CURRENT AGREEMENT,
DID NOT, WITHOUT MORE, SUPPORT A FINDING OF BAD FAITH BARGAINING DURING
NEGOTIATIONS. HE FOUND ALSO THAT THERE WAS NO EVIDENCE TO INDICATE THAT
THE CHANGE WAS MOTIVATED BY ANIMUS TOWARD THE COMPLAINANT, NOR THAT THE
RESPONDENT W S SEEKING TO DENY THE COMPLAINANT'S REPRESENTATIVES ACCESS
TO THE SHIPYARD. UNDER THESE CIRCUMSTANCES, HE FOUND THAT THE
COMPLAINANT HAD NOT MET THE BURDEN OF ESTABLISHING, BY A PREPONDERANCE
OF THE EVIDENCE, THAT THE RESPONDENT VIOLATED 19 A)(6) OF THE ORDER BY
ENGAGING IN BAD FAITH BARGAINING AND RECOMMENDED DISMISSAL OF THAT
PORTION OF THE COMPLAINT.
THE ADMINISTRATIVE LAW JUDGE ALSO FOUND NO MERIT IN THE COMPLAINANT'S
CONTENTION THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF THE
ORDER BY REFUSING TO GRANT THE TYPE OF PASSES PREVIOUSLY ISSUED TO ITS
REPRESENTATIVES THEREBY MAKING THEIR ENTRY INTO THE SHIPYARD ON THE
COMPLAINANT'S BUSINESS MORE DIFFICULT AND, IN SOME INSTANCES, CAUSING
POSTPONEMENT AND RESCHEDULING OF MATTERS AFFECTING GRIEVANCE AND
ARBITRATION PROCEDURES WITH THE RESULTING EFFECT OF DISCOURAGING
MEMBERSHIP IN THE COMPLAINANT. THE ADMINISTRATIVE LAW JUDGE CONCLUDED
THAT AT NO TIME DID THE RESPONDENT DENY THE COMPLAINANT'S
REPRESENTATIVES ACCESS TO THE SHIPYARD TO CONDUCT UNION BUSINESS AND
FOUND THAT WHILE THERE WAS A BREAKDOWN IN THE NEW SYSTEM OF ISSUING
PASSES WHICH CAUSED THE COMPLAINANT'S REPRESENTATIVES CONSIDERABLE DELAY
AND INCONVENIENCE, THE FAILURE OF THESE PROCEDURES WAS NOT THE RESULT OF
THE RESPONDENT'S ANIMUS TOWARD THE COMPLAINANT OR ITS REPRESENTATIVES.
THEREFORE, HE FOUND, IN THE ABSENCE OF ANY EVIDENCE OF ANTI-UNION
MOTIVATION, THAT THE COMPLAINANT HAD FAILED TO ESTABLISH THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) OR (2) OF THE ORDER AND HE
RECOMMENDED DISMISSAL OF THOSE PORTIONS OF THE COMPLAINT.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, 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.
DEPARTMENT OF THE NAVY,
PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON
AND
BREMERTON METAL TRADES COUNCIL,
METAL TRADES DEPARTMENT, AFL-CIO
ON MARCH 29, 1974, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT 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
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. 71-2520 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 12, 1974
IN THE MATTER OF
DEPARTMENT OF THE NAVY,
PUGET SOUND NAVAL SHIPYARD,
BREMERTON, WASHINGTON,
BREMERTON METAL TRADES COUNCIL,
METAL TRADES DEPARTMENT, AFL-CIO,
EDWIN J. CARRIG, GRAND LODGE REPRESENTATIVE
BELLVUE, WASHINGTON
RICHARD C. WELLS AND JAMES C. CAUSEY, ESQS.
SAN FRANCISCO, CALIFORNIA
BEFORE: GORDON J. MYATT
PURSUANT TO A COMPLAINT AND TWO AMENDED COMPLAINTS FILED JANUARY 22,
FEBRUARY 27, AND MARCH 5, 1973, RESPECTIVELY, UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY BREMERTON METAL TRADES COUNCIL, METAL TRADES
DEPARTMENT, AFL-CIO (HEREINAFTER CALLED THE COUNCIL) AGAINST DEPARTMENT
OF THE NAVY, PUGET SOUND NAVAL SHIPYARD (HEREINAFTER CALLED THE
RESPONDENT), A NOTICE OF HEARING WAS ISSUED BY THE REGIONAL
ADMINISTRATOR FOR THE SAN FRANCISCO REGION ON MAY 30, 1973. THE
COMPLAINT ALLEGED AMONG OTHER THINGS THAT THE RESPONDENT ENGAGED IN
VIOLATIONS OF SECTIONS 19(A)(1), (2) AND (6) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THIS MATTER ON JULY 31, 1973 IN SEATTLE,
WASHINGTON. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE ON THE ISSUES INVOLVED.
BRIEFS WERE FILED BY THE PARTIES AND HAVE BEEN DULY CONSIDERED.
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 COUNCIL IS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES AT THE
RESPONDENT'S FACILITY, EXCLUDING PROFESSIONAL EMPLOYEES, PATTERN MAKERS,
TECHNICAL EMPLOYEES, PLANNERS, ESTIMATORS, AND PROGRESS EMPLOYEES. THE
COUNCIL IS COMPOSED OF AFFILIATED LOCAL UNIONS OF NATIONAL OR
INTERNATIONAL ORGANIZATIONS WHOSE MEMBERS ARE EMPLOYED IN THE
RESPONDENT'S SHIPYARD. OVER THE YEARS THE COUNCIL HAS NEGOTIATED AND
SERVICED COLLECTIVE BARGAINING AGREEMENTS WITH THE RESPONDENT ON BEHALF
OF ITS CONSTITUENT LOCALS. THE LATEST AGREEMENT IN EFFECT AT THE TIME
OF THIS HEARING WAS APPROVED BY THE OFFICE OF CIVILIAN MANPOWER
MANAGEMENT OF THE DEPARTMENT OF THE NAVY ON JUNE 23, 1972.
THE CURRENT COLLECTIVE BARGAINING AGREEMENT CONTAINS PROVISIONS
RELATING TO SHIPYARD PASSES TO BE ISSUED TO COUNCIL REPRESENTATIVES AND
OFFICERS TO ENABLE THEM TO ENTER THE FACILITY ON COUNCIL BUSINESS. /1/
THE LANGUAGE OF THESE PROVISIONS HAS BEEN INCORPORATED IN ALL PRIOR
AGREEMENTS WITHOUT ALTERATION SINCE 1969.
FOLLOWING THE NEGOTIATIONS OF THE 1969 AGREEMENT, THE RESPONDENT
FOLLOWED THE PRACTICE OF GRANTING, UPON REQUEST OF THE COUNCIL, PASSES
TO CERTAIN DESIGNATED REPRESENTATIVES OF THE COUNCIL. THE PASSES WERE
DESCRIBED AS "TEMPORARY PASSES" AND WERE USUALLY FOR A SPECIFIC TIME
PERIOD; GENERALLY FOR ONE YEAR. /2/ THE RECORD SHOWS THAT IN 1969 THE
RESPONDENT RENEWED THE SHIPYARD PASS OF LARRY FINNEMAN WHO HAD BEEN
REELECTED VICE-PRESIDENT OF THE COUNCIL. /3/ FINNEMAN'S PASS WAS FOR
THE TENURE OF HIS POSITION AS VICE-PRESIDENT OF THE COUNCIL. SIMILARLY,
ON AUGUST 25, 1969, A PASS WAS ISSUED FOR THE BALANCE OF THE CALENDAR
YEAR TO CHARLES TEMPLE, GRAND LODGE REPRESENTATIVE OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AERO-SPACE WORKERS UNION. TEMPLE WAS THE
CHIEF NEGOTIATOR FOR THE COUNCIL DURING THE THEN PENDING CONTRACT
NEGOTIATIONS. ON SEPTEMBER 30, 1970 THE COUNCIL REQUESTED AND RECEIVED
A PASS FOR TEMPLE FOR A PERIOD OF ONE YEAR AS CHIEF COORDINATOR OF ITS
MEMBERSHIP DRIVE IN THE SHIPYARD. DURING THE YEAR 1970, FINNEMAN, WHO
WAS NEITHER AN OFFICER OF THE COUNCIL NOR AN EMPLOYEE OF THE SHIPYARD,
RECEIVED A PASS FOR A YEAR TO CONDUCT BUSINESS AT THE SHIPYARD ON BEHALF
OF THE COUNCIL. AGAIN IN 1971, FINNEMAN WAS REELECTED VICE-PRESIDENT OF
THE COUNCIL AND RECEIVED A PASS FOR A PERIOD OF A YEAR. TEMPLE, WHO WAS
THE INITIAL CHIEF NEGOTIATOR FOR THE COUNCIL, RECEIVED A PASS FOR A YEAR
ON OCTOBER 5, 1971. /4/
IN ADDITION TO FINNEMAN AND TEMPLE, OTHER UNION REPRESENTATIVES
RECEIVED PASSES FOR SPECIFIC PERIODS OF TIME WHEN THEY WERE ENGAGED IN
BUSINESS AT THE SHIPYARD ON BEHALF OF THE COUNCIL. FOR EXAMPLE, IN
1970, THE COUNCIL CONDUCTED EDUCATIONAL PROGRAMS FOR THE METAL TRADES
SHOP STEWARDS AT THE SHIPYARD AND A PASS FOR A PERIOD OF ONE YEAR WAS
ISSUED TO THE AFL-CIO REPRESENTATIVE IN CHARGE OF THE PROGRAM. THE
PROGRAM WAS REPEATED IN 1971, AND A SIMILAR TYPE PASS FOR THE SAME
PERIOD OF TIME WAS ISSUED TO ANOTHER AFL-CIO REPRESENTATIVE FOR THIS
PURPOSE.
THE RECORD SHOWS THAT IN ADDITION TO UNION REPRESENTATIVES, PASSES
WERE ISSUED TO VARIOUS CLASSES OF INDIVIDUALS WHO CONDUCTED BUSINESS IN
THE SHIPYARD. FOR EXAMPLE, NUMEROUS VENDORS SUPPLYING SERVICES TO THE
SHIPYARD WERE ISSUED YEARLY PASSES. THESE PASSES CONTAINED THE
PHOTOGRAPH OF THE PARTICULAR VENDOR AND IN SOME INSTANCES, ADDITIONAL
PASSES WERE ISSUED TO INDIVIDUALS WHO SUBSTITUTED FOR THE PARTICULAR
VENDOR. TAXI CAB COMPANIES SERVICING THE SHIPYARD WERE ISSUED PASSES
FOR THEIR DRIVERS, AND BUS COMPANIES WERE ALSO ISSUED PASSES FOR THIS
PURPOSE. IN ADDITION, CONTRACTORS AND VARIOUS OTHER NON-EMPLOYEES
WORKING AT THE FACILITY WERE ISSUED PASSES TO THE SHIPYARD. IN THE CASE
OF THE LABOR REPRESENTATIVES, THE PASSES WERE AUTHORIZED BY THE
INDUSTRIAL RELATIONS OFFICE, BUT THE PERSONS IN THE VENDOR OR CONTRACTOR
CATEGORY WERE AUTHORIZED BY THE SECURITY OFFICE OF THE SHIPYARD.
THE CONTROVERSY IN THIS CASE CENTERS AROUND A REQUEST OF THE COUNCIL
TO RENEW FINNEMAN'S PASS WHICH EXPIRED AT THE END OF JUNE 1972, AND
TEMPLE'S PASS WHICH EXPIRED IN OCTOBER OF THE SAME YEAR. A FORMAL
REQUEST FOR RENEWAL OF FINNEMAN'S PASS WAS SENT TO THE INDUSTRIAL
RELATIONS OFFICE ON JULY 11, 1972 BY THE PRESIDENT OF THE COUNCIL. THE
REQUEST WAS DENIED IN WRITING ON AUGUST 7, 1972 BY A. L. MCFALL, HEAD OF
THE EMPLOYEE MANAGEMENT RELATIONS DIVISION OF THE INDUSTRIAL RELATIONS
OFFICE. MCFALL TOOK THE POSITION THAT FINNEMAN WAS NEITHER AN OFFICER
OF THE COUNCIL NOR AN EMPLOYEE OF THE SHIPYARD. THUS, UNDER THE TERMS
OF ARTICLE VII, SEC. 12 OF THE AGREEMENT HE WAS ONLY ENTITLED TO A
TEMPORARY PASS FOR SPECIFIED PURPOSES AND SPECIFIC DURATIONS OF TIME.
/5/ MCFALL AGREED, HOWEVER, TO PROVIDE THE SECURITY OFFICE WITH THE
INFORMATION NECESSARY TO ALLOW FINNEMAN TO HAVE ACCESS TO THE SHIPYARD
TO CONDUCT COUNCIL BUSINESS.
THIS ARRANGEMENT WAS NOT SATISFACTORY TO THE COUNCIL AND A MEETING
BETWEEN COUNCIL REPRESENTATIVES AND THE SHIPYARD COMMANDER AND OFFICIALS
OF THE INDUSTRIAL RELATIONS OFFICE WAS HELD ON AUGUST 11. AT THIS
MEETING THE SHIPYARD COMMANDER INDICATED THAT SECURITY AT THE FACILITY
HAD BEEN LAX AND HE WAS EXTREMELY CONCERNED ABOUT THE NUMBER OF PASSES
WHICH HAD BEEN CIRCULATING THROUGH THE COMMUNITY. HE INSTRUCTED THE
OFFICIALS OF THE INDUSTRIAL RELATIONS OFFICE TO WORK OUT AN ARRANGEMENT
WHEREBY SECURITY REQUIREMENTS WOULD BE MET AND THE UNION OFFICIALS WOULD
HAVE ACCESS TO THE SHIPYARD. THE MANAGEMENT OFFICIALS CONSIDERED
SEVERAL POSSIBILITIES. THEY REJECTED THE IDEA OF A SINGLE PASS
CONTAINING THE PHOTOGRAPH OF THE UNION REPRESENTATIVE WHICH WOULD BE
PICKED UP AT THE GATE AND RETURNED WHEN THAT PERSON LEFT THE BASE. /6/
MANAGEMENT ALSO REJECTED THE IDEA OF HAVING THE UNION REPRESENTATIVES
COME THROUGH THE EMPLOYMENT OFFICE EACH TIME THEY SOUGHT TO ENTER THE
SHIPYARD AS THERE WAS NO PARKING AVAILABLE IN THAT AREA. IT WAS FINALLY
DECIDED THAT A PASS WITHOUT A NAME AFFIXED TO IT AND WITHOUT A
PHOTOGRAPH ATTACHED WOULD BE LEFT AT THE GATE FOR THE UNION OFFICIALS.
IN ORDER TO MAKE THIS PLAN OPERATE, IT WAS NECESSARY FOR MANAGEMENT TO
LIST THE NAMES OF THE UNION OFFICIALS IN A LOG BOOK TO BE RETAINED AT
THE SENTRY STATIONS. IT WAS ALSO IMPERATIVE TO MAKE CERTAIN THAT
INSTRUCTIONS WERE GIVEN TO THE SENTRIES SO THE UNION REPRESENTATIVES
COULD ENTER WITHOUT BEING DELAYED BY FOLLOWING THE "VISITORS
PROCEDURES."
WHILE THE PLAN DEVISED BY THE RESPONDENT'S OFFICIALS WAS
THEORETICALLY SOUND, ITS IMPLEMENTATION BROKE DOWN ON SEVERAL OCCASIONS.
IN PREPARATION FOR AN ARBITRATION HEARING TO BE HELD ON NOVEMBER 9,
1972, TEMPLE SOUGHT TO ENTER THE SHIPYARD TO CONFER WITH COUNCIL
OFFICIALS. THERE WAS NO PASS AVAILABLE FOR HIM AND THE SENTRY HAD TO
CALL THE INDUSTRIAL RELATIONS OFFICE. ARRANGEMENTS WERE FINALLY MADE
FOR TEMPLE TO GAIN ENTRY. WHEN TEMPLE APPEARED ON THE DAY OF THE
ARBITRATION PROCEEDING, HE WAS TOLD BY THE SENTRY THAT ALL PASSES HAD
BEEN CANCELLED. HE WAS REFERRED TO THE SECURITY OFFICE IN THE SHIPYARD.
THERE HE WAS TOLD THAT HE COULD ONLY GAIN ACCESS THROUGH THE INDUSTRIAL
RELATIONS OFFICE. TEMPLE MANAGED TO CONTACT THE INDUSTRIAL RELATIONS
OFFICE AND THEY SAW TO IT THAT HE WAS ADMITTED TO THE SHIPYARD. ON
ANOTHER OCCASION, TEMPLE ATTEMPTED TO ENTER THE SHIPYARD TO CONFER WITH
COUNCIL REPRESENTATIVES AND EMPLOYEES REGARDING A GRIEVANCE. HE WAS
INFORMED BY THE MARINE SENTRY ON DUTY THAT NO PASSES WERE AVAILABLE.
THE DEALY INTERFERED WITH OTHER UNION COMMITMENTS TEMPLE HAD ELSEWHERE,
AND HE HAD TO CANCEL THE MEETING.
BOTH TEMPLE AND FINNEMAN TESTIFIED THAT THEY EXPERIENCED NUMEROUS
DELAYS AT THE GATES BECAUSE THE MARINE SENTRIES KNEW NOTHING OF THE
ARRANGEMENTS MADE ON THEIR BEHALF BY THE INDUSTRIAL RELATIONS OFFICE.
THEY ALSO TESTIFIED THAT THEY FREQUENTLY HAD TO POINT OUT THE LOG BOOK
TO THE SENTRIES, AND ON SEVERAL OCCASIONS THEIR NAMES WERE NOT IN IT.
ON OTHER OCCASIONS, THE SENTRIES WOULD NOT REQUIRE THEM TO PRODUCE
IDENTIFICATION, BUT WOULD SIMPLY ALLOW THEM TO PASS THROUGH THE GATE.
ON MARCH 3, 1973 TEMPLE ATTEMPTED TO ENTER THE SHIPYARD ON COUNCIL
BUSINESS. HE WAS TOLD BY THE SENTRY ON DUTY THAT THERE WERE NO MORE
PASSES AVAILABLE. HE LEFT WITHOUT GAINING ENTRY IN ORDER TO KEEP OTHER
COMMITMENTS. AGAIN, ON APRIL 9, TEMPLE SOUGHT TO ENTER THE SHIPYARD TO
TRANSACT UNION BUSINESS AND THE MARINE SENTRY ON DUTY REFUSED TO ALLOW
HIM TO ENTER AND DIRECTED HIM TO THE ESCORT GATE. BECAUSE OF THE DELAY
INVOLVED, TEMPLE WAS FORCED TO CANCEL THE MEETING SCHEDULED THAT DAY AT
THE SHIPYARD. /7/
THE CIVILIAN HEAD OF THE SECURITY OFFICE OF THE SHIPYARD TESTIFIED
THAT THE PRACTICE OF ISSUING PERMANENT PASSES TO VENDORS AND OTHER
SUPPLIERS OF SERVICES WAS IN THE PROCESS OF BEING MODIFIED. PERMANENT
PASSES TO TAXI CAB OPERATORS AND VENDORS WERE BEING RECALLED AS THEY
EXPIRED, AND PERSONS SEEKING ENTRY TO THE FACILITY ARE BEING REQUIRED TO
ENTER UNDER THE "HOST" PROCEDURE. /8/
THE INITIAL MATTER TO BE CONSIDERED HERE IS THE RESPONDENT'S MOTION
TO DISMISS. /9/ THE MOTION IS GROUNDED ON THE ASSISTANT SECRETARY'S
RULING CONTAINED IN THE REPORT NO. 49 /10/ AND THE THEORY SET FORTH IN
THE COLLYER CASE /11/ BY THE NATIONAL LABOR RELATIONS BOARD. WHILE THE
ARGUMENTS ADVANCED BY THE RESPONDENT ARE WELL-REASONED AND PLAUSIBLE, I
AM OF THE OPINION THAT THE MOTION MUST BE DENIED. IN REPORT NO. 49 THE
ASSISTANT SECRETARY STATED THAT "WHERE A COMPLAINT ALLEGES AS AN UNFAIR
LABOR PRACTICE, A DISAGREEMENT OVER THE INTERPRETATION OF AN EXISTING
COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES A PROCEDURE FOR RESOLVING
THE DISAGREEMENT, (HE) WILL NOT CONSIDER THE PROBLEM IN CONTEXT OF AN
UNFAIR LABOR PRACTICE BUT WILL LEAVE THE PARTIES TO THEIR REMEDIES UNDER
THEIR...AGREEMENT." I UNDERSTAND THIS RULING TO INDICATE THAT WHERE IT
IS CLEAR THAT INTERPRETATION OF THE AGREEMENT IS THE ISSUE AND A
GRIEVANCE OR ARBITRATION PROCEDURE IS CONTAINED IN THE AGREEMENT, THE
PARTIES MUST PURSUE THEIR CONTRACTUAL REMEDIES. CF. NASA, KENNEDY
SPACE CENTER, FLORIDA, A/SLMR NO. 223. BUT THE ASSISTANT SECRETARY HAS
ALSO TAKEN THE POSITION THAT THIS DOES NOT REQUIRE HIM TO WITHDRAW
JURISDICTION IN ALL INSTANCES WHERE CONTRACT INTERPRETATION IS INVOLVED.
FOR EXAMPLE, IN THE NASA CASE, SUPRA, THE ASSISTANT SECRETARY STATED
THAT WITHDRAWAL OF JURISDICTION WAS NOT INTENDED IN SITUATIONS "WHERE AT
ISSUE WAS THE QUESTION WHETHER A PARTY TO AN AGREEMENT HAS GIVEN UP
RIGHTS GRANTED UNDER THE ORDER." SIMILARLY, IN A MORE RECENT CASE THE
ASSISTANT SECRETARY APPARENTLY ASSERTED JURISDICTION ALTHOUGH THE
ADMINISTRATIVE LAW JUDGE FOUND THAT IT INVOLVED A MATTER OF CONTRACT
INTERPRETATION. /12/ THERE THE COMPLAINT ALLEGED THAT THE RESPONDENT
AGENCY VIOLATED THE ORDER BY UNILATERALLY CHANGING THE CONDITIONS OF
EMPLOYMENT OF NURSING EMPLOYEES GRANTED UNDER THE TERMS OF THE CURRENT
BARGAINING AGREEMENT. THE ADMINISTRATIVE LAW JUDGE HELD THAT THE ISSUE
INVOLVED CONTRACT INTERPRETATION AND APPLICATION. ACCORDINGLY HE FOUND
THAT THE PARTIES MUST RESOLVE THEIR DISPUTE BY INVOKING THE GRIEVANCE
PROCEDURES CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT. HE
RECOMMENDED DISMISSAL OF THE COMPLAINT. THE ASSISTANT SECRETARY AGREED
WITH THE RECOMMENDATION AND DISMISSED THE COMPLAINT, BUT IN SO DOING
ADDRESSED HIMSELF TO THE MERITS OF THE CASE. THE ASSISTANT SECRETARY
HELD THAT THE COMPLAINANT WAIVED ITS RIGHT TO INSIST UPON AN UNQUALIFIED
PRIVILEGE TO CLEAN UP BEFORE COMPLETING A SHIFT, IN SPITE OF PAST
PRACTICE, BY THE TERMS OF THE CONTESTED PROVISION CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENT. THUS, BY IMPLICATION, THE ASSISTANT
SECRETARY DID NOT CONSIDER HIMSELF DEPRIVED OF JURISDICTION, EVEN THOUGH
THE MATTER INVOLVED A TERM OF THE COLLECTIVE BARGAINING AGREEMENT.
IN THE INSTANT CASE, I FIND THAT ARTICLE VII, SECTIONS 12 AND 13 ARE
CLEAR AND UNAMBIGUOUS. THERE IS NO DOUBT AS TO WHAT THE LANGUAGE STATES
NOR IS THERE ANY DISPUTE AS TO ITS MEANING. THE RESPONDENT AGREED TO
ISSUE A SHIPYARD PASS UPON WRITTEN REQUEST TO OFFICERS OF THE COUNCIL
WHO WERE NOT EMPLOYEES OF THE SHIPYARD, PROVIDED THEY MET THE SECURITY
REQUIREMENTS. IT IS ALSO AGREED THAT, UPON WRITTEN REQUEST, NATIONAL
OFFICERS OF THE METAL TRADES OR INTERNATIONAL UNIONS AND OTHER
REPRESENTATIVES OF THE COUNCIL WHO WERE NOT SHIPYARD EMPLOYEES MAY BE
ISSUED TEMPORARY SHIPYARD PASSES FOR PURPOSE OF MEETING WITH OFFICIALS
OF THE COUNCIL OR THE EMPLOYER ON MATTERS OF MUTUAL CONCERN DURING
WORKING HOURS. SECTION 13 OF ARTICLE VII CLEARLY SPELLS OUT WHEN
COUNCIL REPRESENTATIVES WHO ARE NOT EMPLOYEES OF THE SHIPYARD MAY BE
ISSUED TEMPORARY PASSES TO DISCUSS COUNCIL MATTERS WITH THE SHIPYARD
EMPLOYEES DURING NON-WORKING HOURS. THERE IS NOTHING IN THE LANGUAGE OF
THESE PROVISIONS OF ARTICLE VII THAT REQUIRES CONTRACT INTERPRETATION.
ACCORDINGLY, I FIND THAT RESPONDENT'S MOTION TO DISMISS MUST BE DENIED
AND I FIND THAT THE ASSISTANT SECRETARY HAD JURISDICTION TO DECIDE THE
ISSUES ON THEIR MERITS.
TURNING TO THE MERITS OF THE CASE, THE COMPLAINANT HAS ALLEGED THAT
THE RESPONDENT BARGAINED IN BAD FAITH BECAUSE IT KNEW AT THE TIME OF
NEGOTIATIONS IT INTENDED TO CHANGE THE PRACTICE REGARDING THE ISSUANCE
OF PHOTO PASSES TO COUNCIL REPRESENTATIVES WHO WERE NOT OFFICERS OF THE
COUNCIL. THERE IS NO EVIDENCE HERE TO SUPPORT THIS ALLEGATION. THE
LANGUAGE OF ARTICLE VII, SECTIONS 12 AND 13 IS IDENTICAL TO THE LANGUAGE
CONTAINED IN PRIOR AGREEMENTS. THE FACT THAT THE RESPONDENT DID NOT
CHANGE ITS PRACTICE OF FREELY ISSUING PHOTO PASSES TO COUNCIL
REPRESENTATIVES WHEN REQUESTED UNTIL AFTER THE EFFECTIVE DATE OF THE
CURRENT CONTRACT DOES NOT, WITHOUT MORE, SUPPORT A FINDING OF BAD FAITH
BARGAINING DURING NEGOTIATIONS. MOREOVER, THE CHANGE WAS BASED UPON THE
RESPONDENT'S UNDERSTANDING OF THE REQUIREMENTS OF ARTICLE VII, SECTION
12 OF THE AGREEMENT. THERE IS NO EVIDENCE IN THIS RECORD TO INDICATE
THAT THE CHANGE WAS MOTIVATED BY ANIMUS TOWARD THE COUNCIL OR ITS
REPRESENTATIVES. NOR IS THERE ANY EVIDENCE THAT THE RESPONDENT WAS
SEEKING TO DENY COUNCIL REPRESENTATIVES ACCESS TO THE SHIPYARD. IN
THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THE COMPLAINANT HAS MET THE
BURDEN OF ESTABLISHING BY A PREPONDERANCE OF THE EVIDENCE THAT THE
RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY ENGAGING IN BAD
FAITH BARGAINING. ACCORDINGLY, I SHALL RECOMMEND DISMISSAL OF THIS
PORTION OF THE COMPLAINT.
THE ALLEGATIONS THAT THE RESPONDENT INTERFERED WITH AND RESTRAINED
ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE ORDER
AND THEREBY DISCOURAGED MEMBERSHIP IN THE COUNCIL MUST ALSO BE DISMISSED
IN MY JUDGMENT. THERE IS NO DOUBT THAT THE RESPONDENT HAD THE AUTHORITY
AND THE RIGHT TO TIGHTEN ITS SECURITY PROCEDURES AND, INDEED, TO ALTER
THE PASS ARRANGEMENTS OF ALL PERSONS SEEKING ENTRY INTO THE SHIPYARD.
/13/ THE COMPLAINANT CONTENDS, HOWEVER, THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE EXECUTIVE ORDER BY REFUSING TO GRANT THE TYPE OF
PASSES PREVIOUSLY ISSUED TO THE GRAND LODGE REPRESENTATIVE AND THE
BUSINESS REPRESENTATIVE THEREBY MAKING THEIR ENTRY INTO THE SHIPYARD ON
COUNCIL BUSINESS MORE DIFFICULT; AND IN SOME INSTANCES, CAUSING
POSTPONEMENT AND RESCHEDULING OF MATTERS AFFECTING GRIEVANCE AND
ARBITRATION PROCEDURES. IT IS URGED THAT THE DIFFICULTIES ENCOUNTERED
BY THE COUNCIL REPRESENTATIVES OVER THE PASS PROCEDURES INTERFERED WITH
AND RESTRAINED EMPLOYEES IN THE EXERCISE OF THE RIGHT TO ASSIST THE
COUNCIL IN REPRESENTING THEM AS ASSURED BY SECTION 1(A) OF THE ORDER.
THIS IS ALLEGED TO CONSTITUTE A VIOLATION OF SECTION 19(A)(1) WITH THE
RESULTANT EFFECT OF DISCOURAGING MEMBERSHIP IN THE COUNCIL IN VIOLATION
OF SECTION 19(A)(2).
IN MY JUDGMENT, THE SWEEP OF THESE ALLEGATIONS IS NOT SUPPORTED BY
THE EVIDENCE DEVELOPED IN THIS RECORD. AT NO TIME DID THE RESPONDENT
DENY THE COUNCIL REPRESENTATIVES ACCESS INTO THE SHIPYARD TO CONDUCT
COUNCIL BUSINESS. IT IS QUITE APPARENT THAT THE PROCEDURES FINALLY
ADOPTED BY THE RESPONDENT REGARDING THE TYPE OF PASSES ISSUED TO THE
COUNCIL REPRESENTATIVES CAUSED THEM CONSIDERABLE DELAY AND
INCONVENIENCE, WHICH CERTAINLY CANNOT BE SAID TO BE CONDUCIVE TO THE
CREATION OF A HARMONIOUS RELATIONSHIP. BUT THE FAILURE OF THESE
PROCEDURES WAS NOT THE RESULT OF ANIMUS TOWARD THE COUNCIL OR ITS
REPRESENTATIVES. RATHER IT WAS THE DIRECT RESULT OF BREAKDOWN IN
COMMUNICATION BETWEEN THE INDUSTRIAL RELATIONS OFFICE AND THE CONTINGENT
OF MARINES GUARDING THE SHIPYARD. THIS UNFORTUNATE SITUATION WAS
FURTHER COMPOUNDED BY THE FACT THAT THE MARINE PERSONNEL ON DUTY AT THE
SHIPYARD WERE CONSTANTLY CHANGING. THERE CAN BE NO DOUBT THAT THE
DIFFICULTIES ENCOUNTERED BY THE COUNCIL REPRESENTATIVES IN GAINING ENTRY
INTO THE SHIPYARD WOULD NOT HAVE OCCURRED IF THE LESS STRINGENT PRACTICE
OF THE PREVIOUS SHIPYARD COMMANDER, IN ISSUING PHOTO PASSES UPON
REQUEST, HAD BEEN CONTINUED. THE CHANGE IN THE PASS PROCEDURES,
HOWEVER, WAS NOT IN CONTRAVENTION TO THE COLLECTIVE BARGAINING
AGREEMENT, BUT RATHER WAS IN COMPLIANCE WITH ITS TERMS. INDEED, AS
POINTED OUT BY THE RESPONDENT IN ITS BRIEF, IT WAS SEEKING TO ESTABLISH
A "VIABLE SYSTEM OF TEMPORARY BADGES" WHICH WOULD ENABLE THE COUNCIL
REPRESENTATIVES TO ENTER THE SHIPYARD ON COUNCIL BUSINESS IN CONFORMITY
WITH THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT. THEREFORE, IN
THE ABSENCE OF ANY EVIDENCE OF ANTI-UNION MOTIVATION, THE COMPLAINANT
HAS NOT ESTABLISHED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) OR (2)
OF THE EXECUTIVE ORDER. /14/
ACCORDINGLY, I SHALL RECOMMEND DISMISSAL OF THIS PORTION OF THE
COMPLAINT.
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
DATED: MARCH 29, 1974
WASHINGTON, D.C.
/1/ ARTICLE VII, SECTION 12 PROVIDES:
UPON WRITTEN REQUEST OF THE COUNCIL, THE EMPLOYER AGREES THAT
OFFICERS OF THE COUNCIL THAT ARE NOT ACTIVE EMPLOYEES OF THE SHIPYARD
WILL BE ISSUED A SHIPYARD PASS IF THEY MEET THE NECESSARY SECURITY
REQUIREMENTS. UPON WRITTEN REQUEST OF THE COUNCIL, NATIONAL OFFICERS OF
THE METAL TRADES OR INTERNATIONAL UNIONS AND OTHER REPRESENTATIVES OF
THE COUNCIL WHO ARE NOT ACTIVE EMPLOYEES OF THE SHIPYARD MAY BE ISSUED A
TEMPORARY SHIPYARD PASS FOR THE PURPOSE OF MEETING WITH OFFICIALS OF THE
COUNCIL OR THE EMPLOYER ON MATTERS OF MUTUAL CONCERN DURING WORKING
HOURS FOR SPECIFICALLY APPROVED PURPOSES AND SPECIFIC DURATIONS OF TIME
IF THEY MEET THE NECESSARY SECURITY REQUIREMENTS.
SECTION 13 OF THAT SAME ARTICLE PROVIDES:
COUNCIL REPRESENTATIVES WHO ARE NOT ACTIVE EMPLOYEES OF THE SHIPYARD
MAY UPON WRITTEN REQUEST OF THE COUNCIL BE ISSUED A TEMPORARY SHIPYARD
PASS, WHICH WILL BE VALID FOR ENTRY INTO THE SHIPYARD TO DISCUSS COUNCIL
MATTERS WITH SHIPYARD EMPLOYEES DURING NON-WORKING HOURS. ABUSE OF
THESE PASS PRIVILEGES WILL RESULT IN ITS IMMEDIATE SUSPENSION. SUCH
VISITS SHALL BE GOVERNED BY THE SECURITY REGULATIONS, AND THE EMPLOYER
RESERVES THE RIGHT TO REQUIRE THAT SUCH VISITORS BE ESCORTED BY A
REPRESENTATIVE OF THE EMPLOYER DURING HIS STAY IN THE SHIPYARD.
/2/ EACH PASS CARRIED THE PHOTOGRAPH OF THE PERSON TO WHOM IT WAS
ISSUED AND WAS RETAINED BY THAT INDIVIDUAL UNTIL THE EXPIRATION DATE.
ISSUANCE OF THE PASS ALSO INCLUDED AN AUTOMOBILE STICKER WHICH ALLOWED
THE UNION REPRESENTATIVE TO PARK IN THE SHIPYARD.
/3/ FINNEMAN WAS A FORMER SHIPYARD EMPLOYEE WHO RESIGNED HIS POSITION
TO BECOME THE BUSINESS REPRESENTATIVE OF MACHINISTS LODGE 282. HE WAS
ALSO THE DELEGATE FROM THE LODGE TO THE COUNCIL.
/4/ FINNEMAN COMPLETED THE NEGOTIATIONS COMMENCED BY TEMPLE FOR THE
1972 COLLECTIVE BARGAINING AGREEMENT.
/5/ THERE IS SOME APPARENT CONFUSION IN THE RECORD REGARDING THE
CLASSIFICATION OF PASSES. THE INTERNAL MEMOS OF THE RESPONDENT WHICH
WERE INTRODUCED INTO EVIDENCE INDICATE THAT THE PASSES PREVIOUSLY ISSUED
TO THE UNION REPRESENTATIVES WERE CONSIDERED "TEMPORARY PASSES", EVEN
THOUGH THEY CONTAINED THE PHOTOGRAPH OF THE INDIVIDUAL AND WERE FOR
PERIODS OF A YEAR OR LESS. HOWEVER, THE TESTIMONY WOULD SEEM TO
INDICATE THAT THESE WERE "PERMANENT PASSES" IN THE SENSE THAT THEY WERE
RETAINED BY THE PERSON TO WHOM THEY WERE ISSUED UNTIL THE EXPIRATION
DATE. TEMPORARY PASSES, ON THE OTHER HAND, WERE APPARENTLY PASSES WHICH
WERE ISSUED AT THE TIME OF ENTRY AND CONTAINED NO PHOTOGRAPH AND WERE
RETURNED AT THE TIME THAT THE RECIPIENT LEFT THE SHIPYARD.
/6/ THIS IDEA WAS APPARENTLY REJECTED FOR SECURITY REASONS.
/7/ THE CONTINGENT OF MARINES STATIONED AT THE SHIPYARD WAS
CONSTANTLY CHANGING BECAUSE OF RETURNEES FROM THE VIETNAM CONFLICT.
THEREFORE INSTRUCTIONS REGARDING THE COUNCIL REPRESENTATIVES WERE
FREQUENTLY NOT TRANSMITTED.
/8/ THIS PROCEDURE REQUIRES THE SHIPYARD HOST TO KNOW THE VENDOR IS
COMING TO THE FACILITY, AND THE VENDOR IS REQUIRED TO FILL OUT A NUMBER
OF SLIPS AT THE GATE IN ORDER TO GAIN ENTRY. THE NEW PROCEDURE DID NOT
APPLY TO EMPLOYEES OF CONTRACTORS WHO WORKED AT THE SHIPYARD ON A
PERMANENT BASIS.
/9/ THE MOTION WAS FILED PRIOR TO THE HEARING AND RENEWED DURING THE
COURSE OF THE HEARING. RULING ON THE MOTION WAS RESERVED UNTIL ISSUANCE
OF THE DECISION HEREIN.
/10/ REPORT ON RULING OF THE ASSISTANT SECRETARY, REPORT NO. 49.
/11/ COLLYER INSULATED WIRE, 192 NLRB NO. 150.
/12/ VETERANS ADMINISTRATION CENTER, BATH, NEW YORK, A/SLMR NO. 335.
/13/ THERE IS SOME EVIDENCE IN THE RECORD THAT THE COUNCIL
REPRESENTATIVES CONSIDERED THEMSELVES TO BE CATEGORIZED AS "SECURITY
RISKS." NOTHING IN THE RECORD SUPPORTS THIS VIEW. THE MERE FACT THAT
THE RESPONDENT WAS TIGHTENING ITS SECURITY PROCEDURES IN NO WAY CARRIED
WITH IT THE IMPLICATION THAT THE COUNCIL REPRESENTATIVES THEMSELVES WERE
TO BE CONSIDERED SECURITY RISKS.
/14/ THIS CONCLUSION IS FURTHER BUTTRESSED BY THE FACT THAT OTHER
CLASSES OF INDIVIDUALS WHO PREVIOUSLY ENJOYED PHOTO PASS PRIVILEGES WERE
CURRENTLY HAVING THEIR PASS PROCEDURES MODIFIED IN KEEPING WITH THE
ORDERS OF THE SHIPYARD COMMANDER.
4 A/SLMR 414; P. 480; CASE NO. 52-4804; JULY 12, 1974.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
DETROIT AREA OFFICE,
DETROIT, MICHIGAN
A/SLMR NO. 414
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (COMPLAINANT)
AGAINST THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DETROIT AREA
OFFICE, DETROIT, MICHIGAN (RESPONDENT). THE COMPLAINT ALLEGED THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1), (2), (4) AND (6) OF THE EXECUTIVE
ORDER BY REFUSING TO GRANT AN EMPLOYEE A PROMOTION AND INCREASING HER
DAILY WORKLOAD BECAUSE OF HER UNION AFFILIATION AND ACTION IN FILING AN
AGENCY DISCRIMINATION COMPLAINT, AND SUBSEQUENTLY FAILING TO CONFER IN
GOOD FAITH WITH RESPECT TO A PENDING AGENCY DISCRIMINATION COMPLAINT.
DURING THE COURSE OF THE HEARING, THE RESPONDENT MOVED FOR DISMISSAL
OF THE COMPLAINT ON THE GROUNDS THAT: (1) THE CHARGE AND/OR COMPLAINT
WERE NOT TIMELY FILED; AND (2) THE COMPLAINANT HAD FAILED TO ESTABLISH
A PRIMA FACIE CASE.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE EVIDENCE ADDUCED BY THE
COMPLAINANT IN SUPPORT OF ITS ALLEGATIONS DEALT SOLELY WITH EVENTS
OCCURRING DURING THE PERIOD AUGUST 1971 THROUGH JANUARY 1972, MORE THAN
SIX AND NINE MONTHS, RESPECTIVELY, PRIOR TO THE FILING OF THE
PRE-COMPLAINT CHARGE AND THE COMPLAINT IN THIS MATTER. ACCORDINGLY, HE
CONCLUDED THAT THE RESPONDENT'S MOTION TO DISMISS BASED ON UNTIMELINESS
HAD MERIT AND SHOULD BE GRANTED.
ALTHOUGH THE ADMINISTRATIVE LAW JUDGE FOUND THE INSTANT COMPLAINT TO
BE UNTIMELY, NEVERTHELESS, HE CONSIDERED THE MERITS OF THE CASE. IN
THIS REGARD, HE FOUND THAT THERE WAS NO EVIDENCE SUBMITTED IN SUPPORT OF
THE SECTION 19(A)(4) AND (6) ALLEGATIONS OF THE COMPLAINT. WITH RESPECT
TO THE 19(A)(6) ALLEGATION, HE NOTED THAT THE COMPLAINANT WAS NOT THE
MAJORITY REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES AND, AS A RESULT,
NO OBLIGATION WAS IMPOSED BY SECTION 19(A)(6) OF THE ORDER UPON THE
RESPONDENT TO CONSULT AND CONFER. THE ADMINISTRATIVE LAW JUDGE FURTHER
FOUND THAT THERE WAS NO EVIDENCE THAT THE EMPLOYEE INVOLVED WAS DENIED A
PROMOTION AND WAS POSSIBLY SUBJECTED TO MORE SERIOUS WORKING CONDITIONS
BECAUSE OF HER UNION ACTIVITIES. ACCORDINGLY, THE ADMINISTRATIVE LAW
JUDGE CONCLUDED THAT THE COMPLAINANT HAD NOT SUSTAINED THE BURDEN OF
PROOF PRESCRIBED BY SECTION 203.14 OF THE ASSISTANT SECRETARY'S
REGULATIONS AND HE RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY FOR LACK OF EVIDENCE.
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.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
DETROIT AREA OFFICE,
DETROIT, MICHIGAN
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
ON APRIL 16, 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 RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 52-4804 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 12, 1974
IN THE MATTER OF
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, DETROIT AREA OFFICE,
DETROIT, MICHIGAN
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
RAYMOND W. KEMP, ESQUIRE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
DETROIT AREA OFFICE
1223 FIRST NATIONAL BUILDING
DETROIT, MICHIGAN 48226
MR. JOSEPH H. JAMES
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEE, AFL-CIO
8335 OHIO AVENUE
DETROIT, MICHIGAN 48204
BEFORE: BURTON S. STERNBURG
PURSUANT TO A COMPLAINT FILED ON JANUARY 15, 1973, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, (HEREINAFTER CALLED THE UNION OR AFGE), AGAINST THE
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DETROIT AREA OFFICE,
DETROIT, MICHIGAN, (HEREINAFTER CALLED THE RESPONDENT OR AGENCY), A
NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ACTING ASSISTANT
REGIONAL DIRECTOR FOR THE CHICAGO, ILLINOIS, REGION ON JULY 5, 1973.
/1/
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT REFUSED TO
GRANT AN EMPLOYEE A PROMOTION AND INCREASED HER DAILY WORK LOAD BECAUSE
OF HER UNION AFFILIATION AND ACTION IN FILING AN AGENCY DISCRIMINATION
COMPLAINT, AND SUBSEQUENTLY FAILED TO CONFER IN GOOD FAITH WITH RESPECT
TO THE PENDING AGENCY DISCRIMINATION COMPLAINT, ALL IN VIOLATION OF
SECS. 19(A)(1), (2), (4) AND (6) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON MARCH 12, 1974, IN
DETROIT, MICHIGAN. 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. /2/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING CONCLUSI4NS AND
RECOMMENDATIONS:
SHARON HAILS WAS HIRED BY THE RESPONDENT AS A GS-4 AND ASSIGNED TO A
POSITION IN THE HOUSING MANAGEMENT DIVISION OF THE RESPONDENT SOMETIME
IN 1971. SUBSEQUENTLY, SEVERAL MONTHS LATER ON JUNE 13TH, 1971, AFTER
BEING PREVIOUSLY INTERVIEWED AND SELECTED BY THOMAS HIGGINBOTHAN,
DIRECTOR OF EQUAL OPPORTUNITY, SHE WAS PROMOTED TO A GS-6 SECRETARIAL
POSITION IN HIGGINBOTHAN'S OFFICE.
IN JULY OR AUGUST 1971, HAILS JOINED AFGE WHICH WAS THEN CONDUCTING
AN ORGANIZATIONAL CAMPAIGN AMONG THE EMPLOYEES IN THE RESPONDENT'S
DETROIT, MICHIGAN OFFICE. HAILS SERVED AS AFGE'S ASSISTANT SECRETARY
AND ALONG WITH FOUR OR FIVE OTHER EMPLOYEES SOLICITED MEMBERSHIP IN
AFGE. CONCURRENTLY, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES
(HEREINAFTER REFERRED TO AS NFFE) WAS ALSO ATTEMPTING TO ORGANIZE THE
EMPLOYEES IN THE RESPONDENT'S DETROIT OFFICE. SUBSEQUENTLY, PURSUANT TO
A RUN-OFF ELECTION IN DECEMBER 1971, NFFE WAS CERTIFIED AS THE MAJORITY
REPRESENTATIVE OF THE EMPLOYEES IN RESPONDENT'S DETROIT, MICHIGAN,
OFFICE.
IN AUGUST OF 1971, HAILS APPLIED FOR PROMOTION TO THE POSITION OF
PROGRAM AID WHICH CARRIED A GS-7 RATING. UPON BEING DENIED PROMOTION TO
THE POSITION OF PROGRAM AID, HAILS, ON OR ABOUT SEPTEMBER 16, 1971,
FILED A DISCRIMINATION COMPLAINT AGAINST DIRECTOR HIGGINBOTHAN.
THEREAFTER, IN AN ATTEMPT TO SETTLE THE DISCRIMINATION COMPLAINT THE
PARTIES MET WITH E.E.O. COUNSELOR FEATHERSTONE IN OCTOBER 1971 AND
DISCUSSED A CONCILIATION AGREEMENT. SUBSEQUENTLY, A CONCILIATION
AGREEMENT DATED OCTOBER 15, 1971, WAS DRAFTED BY FEATHERSTONE AND
PRESENTED TO HIGGINBOTHAN FOR SIGNATURE. HIGGINBOTHAN REFUSED TO SIGN
THE CONCILIATION AGREEMENT BECAUSE CERTAIN OF THE PROVISIONS CONTAINED
THEREIN WERE NOT IN THE FORM AGREED UPON AND OTHER PROVISIONS REQUIRED
PRIOR APPROVAL OF HIS SUPERIORS. THEREAFTER, JAMES, NATIONAL
REPRESENTATIVE FOR THE 7TH DISTRICT, AFGE, UNSUCCESSFULLY ATTEMPTED ON
SEVERAL OCCASIONS THROUGHOUT THE PERIOD NOVEMBER-- DECEMBER 8, 1971, TO
CONTACT VARIOUS OFFICIALS OF THE RESPONDENT TO DISCUSS THE MATTER OF
HAILS' DISCRIMINATION COMPLAINT.
HAILS, WHO WAS THE SOLE WITNESS FOR THE COMPLAINANT, FURTHER
TESTIFIED THAT FOLLOWING THE FILING OF HER DISCRIMINATION COMPLAINT SHE
WAS OVERBURDENED WITH WORK AND FOUND IT DIFFICULT, PARTICULARLY IN
JANUARY 1972, TO SECURE PERMISSION FROM HIGGINBOTHAN TO TAKE ANNUAL
LEAVE. WHILE HAILS ASCRIBES BOTH OF THE FOREGOING ACTIONS, I.E.,
OVERBURDENING WITH WORK AND DIFFICULTY IN SECURING PERMISSION FOR ANNUAL
LEAVE, TO HER PARTICIPATION IN AFGE ACTIVITIES, SHE ACKNOWLEDGED THAT
SHE HAD NO EVIDENCE TO SUPPORT HER CONCLUSIONS IN THIS RESPECT OR TO
INDICATE UNION ANIMUS ON BEHALF OF RESPONDENT.
WITH RESPECT TO THE RESPONDENT'S ACTIONS IN REFUSING TO PROMOTE HAILS
TO THE POSITION OF PROGRAM AID, HIGGINBOTHAN, WHO WAS, AND REMAINS A
DUES PAYING MEMBER OF AFGE, AND WHO WAS RESPONSIBLE FOR SELECTING THE
PERSON TO FILL THE POSITION OF PROGRAM AID, CREDIBLY TESTIFIED THAT HE
DID NOT CONSIDER HAILS FOR THE POSITION SINCE SHE WAS NOT ON THE MERIT
STAFFING PANEL'S "WELL QUALIFIED, BEST QUALIFIED LIST" FROM WHICH HE WAS
REQUIRED TO MAKE HIS SELECTION.
HIGGINBOTHAN ACKNOWLEDGED THAT HAILS MIGHT HAVE BEEN OVERBURDENED
WITH RESPECT TO HER SECRETARIAL DUTIES, BUT POINTED OUT THAT SUCH
OVERBURDENING WAS DUE SOLELY TO THE FACT THAT HIS PROFESSIONAL STAFF HAD
MULTIPLIED WITHOUT A PROPORTIONATE INCREASE IN SECRETARIAL PERSONNEL.
THUS, MRS. HAILS FOUND HERSELF DOING THE SECRETARIAL WORK FOR SEVEN
RATHER THAN FOUR PROFESSIONALS. THE SITUATION IMPROVED SOMEWHAT IN
JANUARY 1972, WHEN HIGGINBOTHAN, AFTER SEVERAL REQUESTS WAS ALLOWED TO
HIRE ANOTHER SECRETARY FOR HIS OFFICE. HIGGINBOTHAN FURTHER TESTIFIED
THAT HE HAD ALWAYS ADVOCATED THE FORMATION OF A UNION AND IN FACT HAD
INCORPORATED A RECOMMENDATION TO THIS EFFECT IN A MEMORANDUM SUBMITTED
TO HIS SUPERIOR, THE AREA DIRECTOR. THE MEMORANDUM WAS IDENTIFIED AND
RECEIVED IN THE RECORD AS RESPONDENT'S EXHIBIT NO. 2.
AS NOTED SUPRA RESPONDENT'S MOTIONS, MADE AT THE HEARING, FOR
DISMISSAL OF THE INSTANT COMPLAINT ON THE GROUNDS OF UNTIMELINESS AND
FAILURE TO ESTABLISH A PRIMA FACIE CASE WERE TAKEN UNDER ADVISEMENT BY
THE UNDERSIGNED. UPON FURTHER CONSIDERATION, I FIND, FOR REASONS STATED
BELOW, MERIT IN BOTH MOTIONS AND WILL ACCORDINGLY RECOMMEND DISMISSAL OF
THE COMPLAINT.
SEC. 203.2(A)(2) AND 203.2(B)(3) OF THE REGULATIONS, PROVIDE THAT
CHARGES AND COMPLAINTS MUST BE FILED WITHIN SIX AND NINE MONTHS,
RESPECTIVELY, OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICES.
INASMUCH AS THE EVIDENCE ADDUCED BY COMPLAINANT IN SUPPORT OF ITS
ALLEGATIONS DEALS SOLELY WITH EVENTS OCCURRING DURING THE PERIOD AUGUST
1971 THROUGH JANUARY 1972, MORE THAN SIX OR NINE MONTHS, RESPECTIVELY,
PRIOR TO THE FILING OF THE CHARGES ON OCTOBER 11, 1972, AND THE
COMPLAINT ON JANUARY 15, 1973, FURTHER PROCEEDINGS THEREON ARE BARRED BY
THE REGULATIONS.
ADDITIONALLY, EVEN IF THE CHARGES AND COMPLAINT WERE DEEMED TIMELY
FILED, I FURTHER FIND THAT THE COMPLAINANT HAS NOT SUSTAINED THE BURDEN
OF PROOF IMPOSED BY SEC. 203.14 OF THE REGULATIONS. IN THIS REGARD I
NOTE THAT NO EVIDENCE WHATSOEVER WAS SUBMITTED IN SUPPORT OF THE SECS.
19(A)(4) AND (6) ALLEGATIONS OF THE COMPLAINT. AS TO THE LATTER
ALLEGATION, I FURTHER NOTE THAT THE AFGE, THE COMPLAINANT HEREIN, IS NOT
THE MAJORITY REPRESENTATIVE OF THE RESPONDENT'S EMPLOYEES, AND THAT IN
THE ABSENCE OF SAME, NO OBLIGATION IS IMPOSED BY SEC. 19(A)(6) OF THE
ORDER UPON RESPONDENT TO CONSULT AND CONFER.
FINALLY, WITH REGARD TO THE REMAINING 19(A)(1) AND (2) ALLEGATIONS OF
THE COMPLAINT, COMPLAINANT HAS ONLY SHOWN THAT EMPLOYEE HAILS WAS DENIED
A PROMOTION AND POSSIBLY BEEN SUBJECTED TO MORE ONEROUS WORKING
CONDITIONS. OTHER THAN HAILS' SELF SERVING STATEMENTS, NO CONNECTION,
DIRECT OR OTHERWISE, HAS BEEN MADE TO THE ALLEGED DISCRIMINATION AND HER
UNION ACTIVITIES , A NECESSARY INGREDIENT TO AN UNFAIR LABOR PRACTICE
FINDING UNDER THE ORDER. /3/ NEEDLESS TO SAY, CONJECTURE OR OPINION IS
NOT EVIDENCE.
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: APRIL 16, 1974
WASHINGTON, D.C.
/1/ THE HEARING ORIGINALLY SCHEDULED FOR OCTOBER 2, 1973, WAS
POSTPONED AND SUBSEQUENTLY RESCHEDULED FOR MARCH 12, 1974, BY ORDER
DATED JANUARY 15, 1974.
/2/ DURING THE COURSE OF THE HEARING RESPONDENT MOVED FOR DISMISSAL
OF THE COMPLAINT ON THE GROUNDS (1) THAT THE CHARGES AND/OR COMPLAINT
WERE NOT TIMELY FILED; AND (2) THAT THE COMPLAINANT HAD FAILED TO
ESTABLISH A PRIMA-FACIE CASE. BOTH MOTIONS WERE TAKEN UNDER ADVISEMENT
BY THE UNDERSIGNED.
/3/ IN ANY EVENT, NO EVIDENCE WHATSOEVER WAS OFFERED TO COUNTER THE
CREDIBLE TESTIMONY OF HIGGINBOTHAN WITH REGARD TO THE REASONS AND
CIRCUMSTANCES UNDERLYING HAILS' DENIAL OF A PROMOTION AND/OR HER ALLEGED
UNSATISFACTORY WORKING CONDITIONS.
4 A/SLMR 413; P. 478; CASE NO. 62-3832(DR); JULY 11, 1974.
U.S. GEOLOGICAL SURVEY,
DEPARTMENT OF THE INTERIOR,
ROLLA, MISSOURI
A/SLMR NO. 413
THE PETITIONER, IRVIN J. HAWKINS, SOUGHT THE DECERTIFICATION OF THE
INTERVENOR, LOCAL 934, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, THE
CURRENT EXCLUSIVE REPRESENTATIVE OF CERTAIN EMPLOYEES OF THE ACTIVITY.
THE INTERVENOR MOVED TO DISMISS THE PETITION, CONTENDING: (1) THAT
THERE WAS AN AGREEMENT BAR TO AN ELECTION, AND (2) THAT AT ALL TIMES
MATERIAL TO DRAWING UP, CIRCULATING AND ARRANGING THE PETITION, THE
PETITIONER WAS A SUPERVISOR. RELYING ON THE AREA ADMINISTRATOR'S
PRE-HEARING INVESTIGATION WHICH CONCLUDED THAT THE PETITIONER WAS NOT A
SUPERVISOR WITHIN THE MEANING OF THE ORDER, THE HEARING OFFICER, OVER AN
OBJECTION BY THE INTERVENOR, REFUSED TO CONSIDER ANY EVIDENCE IN THIS
REGARD.
WITH RESPECT TO THE ALLEGED AGREEMENT BAR, THE ASSISTANT SECRETARY
REJECTED THE INTERVENOR'S CONTENTION THAT NOVEMBER 10, 1972, THE DATE ON
WHICH THE DRAFT BASIC AGREEMENT WAS SIGNED AT THE LOCAL LEVEL BY THE
INTERVENOR AND THE ACTIVITY, WAS CONTROLLING FOR THE PURPOSE OF
DETERMINING THE OPEN PERIOD FOR FILING AN ELECTION PETITION. (THIS
CONTENTION WAS MADE NOTWITHSTANDING THE FACT THAT THE NOVEMBER 10, 1972,
DATE DID NOT APPEAR ON THE DRAFT BASIC AGREEMENT). THUS, CONSISTENT
WITH THE RATIONALE CONTAINED IN TREASURY DEPARTMENT, UNITED STATES MINT,
PHILADELPHIA, PENNSYLVANIA, A/SLMR NO. 45, AND A READING OF SECTION
202.3(C)(1) OF THE REGULATIONS, THE ASSISTANT SECRETARY CONSIDERED THE
CONTROLLING DATE IN COMPUTING THE "OPEN" PERIOD FOR THE FILING OF THE
PETITION IN QUESTION TO BE THE TERMINAL DATE OF THE ONE-YEAR NEGOTIATED
AGREEMENT INVOLVED HEREIN AND CONCLUDED THAT THE PETITION WAS TIMELY
FILED DURING THE 60-90 DAY OPEN PERIOD OF THE AGREEMENT.
WITH RESPECT TO THE ALLEGED SUPERVISORY STATUS OF THE PETITIONER AND
THE HEARING OFFICER'S RULING PERTAINING THERETO, IN THE ASSISTANT
SECRETARY'S VIEW THE HEARING OFFICER ERRED IN NOT PERMITTING THE
INTRODUCTION OF EVIDENCE PERTAINING TO THE ALLEGED SUPERVISORY STATUS OF
THE PETITIONER. IN THIS REGARD, HE NOTED PRIOR DECISIONS WHERE
PETITIONS FILED BY A MANAGEMENT OFFICIAL AND A GUARD FOR A NON-GUARD
UNIT WERE DISMISSED. ACCORDINGLY, THE ASSISTANT SECRETARY REMANDED THE
CASE FOR THE PURPOSE OF REOPENING THE HEARING TO OBTAIN EVIDENCE ON THE
PETITIONER'S SUPERVISORY STATUS AT THE TIME HE FILED THE DECERTIFICATION
PETITION IN THIS MATTER.
U.S. GEOLOGICAL SURVEY,
DEPARTMENT OF THE INTERIOR,
ROLLA, MISSOURI
AND
IRVIN J. HAWKINS
AND
LOCAL 934, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER CLARENCE E.
TEETERS. EXCEPT AS MODIFIED HEREIN, THE HEARING OFFICER'S RULINGS MADE
AT THE HEARING ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE BRIEFS FILED BY
THE ACTIVITY AND THE INTERVENOR, THE ASSISTANT SECRETARY FINDS:
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.
PRIOR TO THE HEARING IN THIS MATTER, THE INTERVENOR MOVED TO DISMISS
THE SUBJECT PETITION CONTENDING THAT THERE EXISTS AN AGREEMENT BAR TO AN
ELECTION, AND THAT, AT ALL TIMES MATERIAL "TO DRAWING UP, CIRCULATING
AND ARRANGING THE PETITION," THE PETITIONER WAS A SUPERVISOR "IN
VIOLATION OF SECTION 1(A) AND (B), AND SECTION 19(A)(1) AND (2) OF THE
ORDER." THE INTERVENOR'S MOTION WAS REFERRED TO THE HEARING OFFICER IN
THIS CASE. AT THE HEARING, THE HEARING OFFICER RULED THAT ALL
ALLEGATIONS RAISED BY THE INTERVENOR IN ITS MOTION, WITH THE EXCEPTION
OF THE ALLEGATION CONCERNING THE AGREEMENT BAR, HAD BEEN DETERMINED TO
BE WITHOUT MERIT AND, THEREFORE, THE SCOPE OF THE HEARING WOULD BE
RESTRICTED TO DEVELOPING EVIDENCE RELATING ONLY TO THE AGREEMENT BAR
ISSUE. THE INTERVENOR EXCEPTED TO THE HEARING OFFICER'S RULING LIMITING
THE SCOPE OF THE HEARING.
WITH REGARD TO THE AGREEMENT BAR ISSUE, THE INTERVENOR NOTED THAT THE
EFFECTIVE DATE OF THE PARTIES' NEGOTIATED AGREEMENT WAS JANUARY 10,
1973. HOWEVER, IT ASSERTED THAT NOVEMBER 10, 1972, THE DATE ON WHICH
THE DRAFT BASIC AGREEMENT WAS SIGNED AT THE LOCAL LEVEL, IS CONTROLLING
FOR AGREEMENT BAR PURPOSES. UNDER THESE CIRCUMSTANCES, IN THE
INTERVENOR'S VIEW, THE AGREEMENT BAR PERIOD OF THE ONE-YEAR AGREEMENT
TERMINATED ON NOVEMBER 9, 1973, AND, THEREFORE, THE INSTANT
DECERTIFICATION PETITION FILED ON OCTOBER 24, 1973, WAS UNTIMELY IN THAT
IT WAS NOT FILED DURING THE PRESCRIBED OPEN PERIOD. /2/ ON THE OTHER
HAND, THE ACTIVITY AND THE PETITIONER CONTEND THAT NO AGREEMENT BAR TO
AN ELECTION EXISTS IN THIS MATTER. IN THIS REGARD, THEY CONTEND THAT AS
THE NEGOTIATED AGREEMENT BECAME EFFECTIVE ON JANUARY 10, 1973, THE
PETITION HEREIN WAS TIMELY FILED IN RELATION TO THE ACTUAL TERMINATION
DATE OF SUCH AGREEMENT. FURTHER, THE PETITIONER CONTENDS THAT THE
NEGOTIATED AGREEMENT WAS THE ONLY SOURCE AVAILABLE FOR DETERMINING THE
PERIOD IN WHICH A CHALLENGE TO THE MAJORITY STATUS OF THE INTERVENOR
COULD BE FILED AND THAT THE ONLY DATE CONTAINED ON SUCH AGREEMENT WAS
ITS EFFECTIVE DATE, I.E., JANUARY 10, 1973.
THE RECORD REVEALS THAT THE INTERVENOR AND THE ACTIVITY NEGOTIATED
AND SIGNED A DRAFT BASIC AGREEMENT WHICH WAS FORWARDED TO THE PERSONNEL
OFFICER, U.S. GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR FOR
APPROVAL BY THE DEPARTMENT'S DIRECTOR OF PERSONNEL. THE SIGNED DRAFT
BASIC AGREEMENT WAS UNDATED; HOWEVER, A NOVEMBER 14, 1972, MEMORANDUM
OF TRANSMITTAL TO THE PERSONNEL OFFICER INDICATED THAT IT HAD BEEN
SIGNED ON NOVEMBER 10, 1972. UNDER THE TERMS OF THAT AGREEMENT, IT WAS
TO BECOME EFFECTIVE ON THE DATE OF APPROVAL BY THE DIRECTOR OF PERSONNEL
AND TO REMAIN IN EFFECT FOR ONE YEAR FROM THAT DATE. THE BASIC
AGREEMENT WAS APPROVED AND SIGNED BY THE DIRECTOR OF PERSONNEL ON
JANUARY 10, 1973, AND ALSO WAS SIGNED ON THAT DATE BY THE PERSONNEL
OFFICER OF THE DEPARTMENT OF THE INTERIOR AND BY THE PRESIDENT OF THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
IT HAS BEEN HELD PREVIOUSLY THAT IN ORDER FOR AN AGREEMENT TO
CONSTITUTE A BAR TO THE PROCESSING OF A PETITION, IT SHOULD CONTAIN A
CLEARLY ENUNCIATED FIXED TERM OR DURATION FROM WHICH EMPLOYEES AND LABOR
ORGANIZATIONS CAN ASCERTAIN, WITHOUT THE NECESSITY OF RELYING ON OTHER
FACTORS, THE APPROPRIATE TIME FOR THE FILING OF REPRESENTATION
PETITIONS. /3/ IT HAS BEEN NOTED ALSO, IN THIS REGARD, THAT TO PERMIT
AGREEMENTS OF UNCLEAR DURATION TO CONSTITUTE BARS TO ELECTIONS WOULD, IN
EFFECT, BE GRANTING PROTECTION TO PARTIES WHO HAVE ENTERED INTO
AMBIGUOUS COMMITMENTS AND COULD RESULT IN THE ABRIDGEMENT OF THE RIGHTS
OF EMPLOYEES UNDER THE EXECUTIVE ORDER. AS INDICATED ABOVE, UNDER THE
TERMS OF THE UNDATED DRAFT BASIC AGREEMENT, THE INTERVENOR AND THE
ACTIVITY AGREED THAT THE EFFECTIVE DATE AND DURATION OF THEIR NEGOTIATED
AGREEMENT WOULD BE DETERMINED BY THE DATE OF APPROVAL BY THE DIRECTOR OF
PERSONNEL. THE EVIDENCE ESTABLISHES THAT THE NEGOTIATED AGREEMENT WAS
APPROVED BY THE DIRECTOR OF PERSONNEL ON JANUARY 10, 1973, AND THAT IT
STATES CLEARLY THAT IT SHALL BE EFFECTIVE ON THAT DATE AND REMAIN IN
EFFECT FOR ONE YEAR FROM THAT DATE.
SECTION 202.3(C)(1) OF THE ASSISTANT SECRETARY'S REGULATIONS, QUOTED
ABOVE AT FOOTNOTE 2, CLEARLY INDICATES THAT THE CONTROLLING DATE IN
COMPUTING THE "OPEN" PERIOD FOR THE FILING OF A PETITION FOR AN ELECTION
IS THE TERMINAL DATE OF AN AGREEMENT SUCH AS THE ONE IN THIS CASE, WHICH
HAS A TERM OF THREE YEARS OR LESS. FINDING THE TERMINAL DATE OF THE
NEGOTIATED AGREEMENT IN THIS CASE TO BE JANUARY 9, 1974, I CONCLUDE,
THEREFORE, THAT THE OCTOBER 24, 1973, DECERTIFICATION PETITION HEREIN
WAS TIMELY FILED DURING THE 60-90 DAY OPEN PERIOD OF THAT AGREEMENT.
ACCORDINGLY, IN THE CIRCUMSTANCES OF THIS CASE, I FIND THAT THE
NEGOTIATED AGREEMENT BETWEEN THE INTERVENOR AND THE ACTIVITY DOES NOT
BAR AN ELECTION AMONG THE EMPLOYEES COVERED BY THE INSTANT
DECERTIFICATION PETITION.
AS INDICATED ABOVE, THE INTERVENOR FURTHER ALLEGED THAT AT ALL TIMES
MATERIAL "DO DRAWING UP, CIRCULATING AND ARRANGING THE PETITION," THE
PETITIONER WAS A SUPERVISOR. RELYING ON THE AREA ADMINISTRATOR'S
PRE-HEARING INVESTIGATION WHICH CONCLUDED THAT THE PETITIONER WAS NOT A
SUPERVISOR WITHIN THE MEANING OF THE ORDER, OR WORKED IN SUCH A CAPACITY
WHILE ENGAGED IN ACTIVITY LEADING TO HIS FILING OF THE INSTANT PETITION,
AS NOTED ABOVE, THE HEARING OFFICER, OVER AN OBJECTION BY THE
INTERVENOR, REFUSED TO CONSIDER ANY EVIDENCE IN THIS REGARD. THE
HEARING OFFICER MADE SUCH A RULING NOTWITHSTANDING THE FACT THAT THE
INTERVENOR MAINTAINED THAT IT STILL WAS IN DISAGREEMENT AS TO THE
SUPERVISORY STATUS OF THE PETITIONER.
IN MY VIEW, THE HEARING OFFICER ERRED IN NOT PERMITTING THE
INTRODUCTION OF EVIDENCE PERTAINING TO THE ALLEGED SUPERVISORY STATUS OF
THE PETITIONER. THUS, IN PRIOR DECISIONS IT HAS BEEN FOUND THAT
PETITIONS FILED BY A MANAGEMENT OFFICIAL AND A GUARD FOR A NON-GUARD
UNIT WARRANTED DISMISSAL. /4/ ACCORDINGLY, IN VIEW OF THE INTERVENOR'S
EXCEPTIONS TO THE HEARING OFFICER'S REFUSAL TO ACCEPT EVIDENCE
PERTAINING TO THE SUPERVISORY STATUS OF THE PETITIONER AND THE LACK OF
SUFFICIENT EVIDENCE NECESSARY TO DECIDE THIS QUESTION, I SHALL REMAND
THE SUBJECT CASE 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.
IT IS HEREBY ORDERED THAT THE SUBJECT CASE BE, AND IT HEREBY IS,
REMANDED TO THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR.
DATED, WASHINGTON, D.C.
JULY 11, 1974
/1/ THE NAME OF THE INTERVENOR APPEARS AS AMENDED AT THE HEARING.
/2/ SEE SECTION 202.3(C)(1) OF THE ASSISTANT SECRETARY'S REGULATIONS
WHICH PROVIDES: "WHEN AN AGREEMENT COVERING A CLAIMED UNIT HAS BEEN
SIGNED BY THE ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE, A
PETITION FOR EXCLUSIVE REPRESENTATION OR OTHER ELECTION PETITION WILL BE
CONSIDERED TIMELY WHEN FILED.../N/OT 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."
/3/ SEE TREASURY DEPARTMENT, UNITED STATES MINT, PHILADELPHIA,
PENNSYLVANIA, A/SLMR NO. 45.
/4/ SEE DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135, AND THE FEDERAL LABOR RELATIONS COUNCIL'S DECISION
PERTAINING THERETO IN FLRC NO. 72A-19, WHERE THE COUNCIL STATED: " . .
. A PETITION IS DEFECTIVE AND SHOULD BE DISMISSED IF IT WAS FILED BY A
PERSON DETERMINED TO BE A MEMBER OF AGENCY MANAGEMENT . . . " SEE ALSO
VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS, A/SLMR NO 21.
4 A/SLMR 412; P. 475; CASE NO. 22-5129(CA); JULY 11, 1974.
DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND
A/SLMR NO. 412
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 2424 (COMPLAINANT). THE COMPLAINT, AS AMENDED,
ALLEGED THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY REFUSING TO SEEK REVIEW BY THE FEDERAL LABOR RELATIONS COUNCIL
OR TO COMPLY WITH A BINDING ARBITRATION AWARD ISSUED PURSUANT TO THE
TERMS OF THE PARTIES' NEGOTIATED AGREEMENT. THE CASE WAS TRANSFERRED TO
THE ASSISTANT SECRETARY PURSUANT TO SECTION 206.5(B) OF THE ASSISTANT
SECRETARY'S REGULATIONS AFTER THE PARTIES HAD SUBMITTED A STIPULATION OF
FACTS AND EXHIBITS TO THE ASSISTANT REGIONAL DIRECTOR FOR
LABOR-MANAGEMENT SERVICES.
THE RESPONDENT CONTENDED THAT IT LACKED THE AUTHORITY TO CARRY OUT
THE ARBITRATOR'S PROPOSED REMEDY. IT FURTHER ASSERTED THAT THE
ARBITRATOR IN MAKING HIS AWARD WENT BEYOND INTERPRETING OR APPLYING THE
TERMS OF THE PARTIES' NEGOTIATED AGREEMENT AND, FURTHER, THAT THE UNFAIR
LABOR PRACTICE COMPLAINT LACKED SUFFICIENT SPECIFICITY.
THE ASSISTANT SECRETARY REJECTED THE RESPONDENT'S CONTENTION THAT THE
COMPLAINT LACKED SPECIFICITY. THE ASSISTANT SECRETARY CONCLUDED THAT
THE RESPONDENT'S REFUSAL TO COMPLY WITH AN AWARD ISSUED BY AN ARBITRATOR
UNDER CONDITIONS AGREED TO BY THE PARTIES, IN HIS JUDGMENT, WOULD
CONSTITUTE A UNILATERAL ACTION WITH RESPECT TO NEGOTIATED TERMS AND
CONDITIONS OF EMPLOYMENT, WOULD THWART THE ARBITRATION PROCESS, WOULD BE
INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER, AND WOULD BE
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER. HOWEVER, HE NOTED
THE RESPONDENT'S DEFENSE, I.E.-- THAT IT IS UNABLE TO MAKE PAYMENT OF
THE AMOUNT INVOLVED BECAUSE NO APPROPRIATION EXISTS FOR PAYMENT AND A
SPECIAL AUTHORIZATION FROM THE COMPTROLLER GENERAL IS NEEDED IN ORDER TO
IMPLEMENT THE AWARD-- RAISED THE FOLLOWING MAJOR POLICY ISSUES: (1)
WHETHER THE ASSISTANT SECRETARY HAS JURISDICTION TO ENFORCE UNDER
SECTION 19 OF THE ORDER A BINDING ARBITRATION AWARD IN WHICH NO
EXCEPTIONS WERE FILED WITH THE FEDERAL LABOR RELATIONS COUNCIL; AND (2)
IF THE ASSISTANT SECRETARY HAS JURISDICTION TO ENFORCE A BINDING
ARBITRATION AWARD, IS A DEFENSE THAT A PARTY CANNOT COMPLY WITH AN
ARBITRATOR'S AWARD UNTIL IT RECEIVED AUTHORIZATION FROM THE COMPTROLLER
GENERAL TO MAKE PAYMENT DISPOSITIVE OF THE MATTER? UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY REFERRED THESE ISSUES TO THE
FEDERAL LABOR RELATIONS COUNCIL FOR DECISION.
DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND
AND
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 2424
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES KENNETH L. EVANS' ORDER
TRANSFERRING CASE TO THE ASSISTANT SECRETARY PURSUANT TO SECTION
206.5(B) 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 INITIAL COMPLAINT IN THE SUBJECT CASE ALLEGED THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2), (3), (5), AND (6) OF THE ORDER /1/ BY
REFUSING TO SEEK REVIEW BY THE FEDERAL LABOR RELATIONS COUNCIL OR TO
COMPLY WITH A BINDING ARBITRATION AWARD ISSUED PURSUANT TO THE TERMS OF
THE PARTIES' NEGOTIATED AGREEMENT.
THE COMPLAINANT CONTENDS THAT A REFUSAL TO COMPLY WITH A BINDING
ARBITRATION AWARD WITHOUT FILING EXCEPTIONS UNDER SECTION 13(B) OF THE
ORDER /2/ WITH THE FEDERAL LABOR RELATIONS COUNCIL CONSTITUTES AN UNFAIR
LABOR PRACTICE. ON THE OTHER HAND, THE RESPONDENT ARGUES THAT IT LACKS
THE AUTHORITY TO CARRY OUT THE ARBITRATOR'S PROPOSED REMEDY. IT ASSERTS
ALSO THAT THE ARBITRATOR IN MAKING HIS AWARD WENT BEYOND INTERPRETING OR
APPLYING THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT AND, FURTHER,
THAT THE UNFAIR LABOR PRACTICE COMPLAINT IN THIS MATTER HEREIN LACKS
SUFFICIENT SPECIFICITY.
THE UNDISPUTED FACTS, AS STIPULATED BY THE PARTIES, ARE AS FOLLOWS:
ON AUGUST 9, 1972, THE PARTIES ENTERED INTO A NEGOTIATED AGREEMENT
WHICH PROVIDED, IN PART, FOR THE DEDUCTION OF DUES AND THE TRANSMITTAL
TO THE COMPLAINANT OF AN AMOUNT EQUAL TO THE DEDUCTIONS EACH PAY PERIOD
NOT LATER THAN THREE WORKDAYS AFTER EACH PAY DAY.
ON OCTOBER 18, 1971, ROBERT L. WRIGHT, AN EMPLOYEE WHO HAD FILED A
VOLUNTARY DUES WITHHOLDING AUTHORIZATION, WAS PROMOTED FROM A UNIT JOB
TO A JOB OUTSIDE THE UNIT. CONTRARY TO THE TERMS OF THE PARTIES'
NEGOTIATED AGREEMENT, THE RESPONDENT'S PAYROLL OFFICE FAILED TO
TERMINATE THE DUES WITHHOLDING AUTHORIZATION AND ERRONEOUSLY CONTINUED
TO DEDUCT AND REMIT SUCH DUES TO THE COMPLAINANT UNTIL THE LAST PAY
PERIOD OF NOVEMBER 1972, OVER A YEAR AFTER WRIGHT WAS PROMOTED OUT OF
THE UNIT. UPON ASCERTAINING ITS MISTAKE, THE RESPONDENT CEASED
DEDUCTING DUES FROM WRIGHT'S PAY AND, IN DECEMBER 1972, REIMBURSED W
RIGHT IN THE AMOUNT OF $80.33, WHICH EQUALED THE AMOUNT OF DUES
ERRONEOUSLY DEDUCTED FROM HIS PAY SINCE OCTOBER 18, 1971. IN ORDER TO
CORRECT ITS ERROR, THE RESPONDENT TRANSMITTED TO THE COMPLAINANT THE
DUES DEDUCTIONS FOR NOVEMBER 1972, LESS THE $80.33 IT HAD PREVIOUSLY
PAID THE COMPLAINANT IN ERROR. BASED UPON THE RESPONDENT'S ACTION, THE
COMPLAINANT FILED A GRIEVANCE UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
REQUESTING THE PAYMENT OF THE WITHHELD $80.33. THE GRIEVANCE PROCEEDED
TO ARBITRATION. /3/ THEREAFTER, ON AUGUST 3, 1973, THE ARBITRATOR
ISSUED HIS DECISION FINDING THAT THE RESPONDENT HAD VIOLATED THE
NEGOTIATED AGREEMENT BY WITHHOLDING FROM A PAYMENT OF DEDUCTED UNION
DUES AN AMOUNT PREVIOUSLY PAID TO THE COMPLAINANT BY MISTAKE. LIMITING
HIS FINDING TO THE FACT THAT "THE PARTICULAR METHOD USED IN THE INSTANT
CASE VIOLATED THE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT,"
THE ARBITRATOR ORDERED THAT THE RESPONDENT REIMBURSE THE COMPLAINANT IN
THE AMOUNT OF $80.33 WHICH HAD BEEN IMPROPERLY WITHHELD.
NOTWITHSTANDING THE ARBITRATION AWARD, THE RESPONDENT HAS NOT PAID
THE $80.33 TO THE COMPLAINANT NOR FILED A PETITION FOR REVIEW WITH THE
FEDERAL LABOR RELATIONS COUNCIL. INSTEAD, THE RESPONDENT CLAIMED THAT
IT DID NOT KNOW FROM WHICH ACCOUNT TO CHARGE THE $80.33 AND, ON AUGUST
17, 1973, SOUGHT AN ADVANCE DECISION FROM THE COMPTROLLER GENERAL OF THE
UNITED STATES AS TO THE APPROPRIATE FUND CITATION, IF ANY, FROM WHICH TO
MAKE PAYMENT TO THE COMPLAINANT. THE COMPTROLLER GENERAL HAS ACCEPTED
THE RESPONDENT'S REQUEST FOR AN OPINION. THE RESPONDENT INDICATES THAT
IT HAS PREPARED A VOUCHER FOR PAYMENT AND IS AWAITING THAT DECISION.
ALL OF THE FACTS AND POSITIONS SET FORTH ABOVE ARE DERIVED FROM THE
PARTIES' STIPULATION AND ACCOMPANYING EXHIBITS.
IN MY VIEW, A PARTY'S REFUSAL TO COMPLY WITH A BINDING ARBITRATION
AWARD WOULD BE VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER IN
CIRCUMSTANCES WHERE SUCH PARTY HAS NOT AVAILED ITSELF OF THE RIGHT TO
FILE EXCEPTIONS TO THE AWARD UNDER THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS COUNCIL. THUS, SUCH A REFUSAL TO COMPLY WITH AN
AWARD ISSUED BY AN ARBITRATOR UNDER CONDITIONS AGREED TO BY THE PARTIES,
IN MY JUDGMENT, WOULD CONSTITUTE A UNILATERAL ACTION WITH RESPECT TO
NEGOTIATED TERMS AND CONDITIONS OF EMPLOYMENT, WOULD THWART THE
ARBITRATION PROCESS, AND WOULD BE INCONSISTENT WITH THE PURPOSES AND
POLICIES OF THE ORDER. IN THIS REGARD, IT WAS NOTED THAT THE STUDY
COMMITTEE'S REPORT AND RECOMMENDATIONS (AUGUST 1969) STATES, IN
PERTINENT PART, THAT: "WE FEEL THAT ARBITRATORS' DECISIONS SHOULD BE
ACCEPTED BY THE PARTIES. ...EXCEPTIONS SHOULD BE TAKEN EXPEDITIOUSLY BY
NOTIFYING THE OTHER PARTY ...OF THE FULL NATURE OF THE OBJECTIONS TO THE
DECISION. IF THE AGENCY AND THE ORGANIZATION CANNOT RESOLVE THE MATTER
WITHIN A REASONABLE PERIOD OF TIME, EITHER PARTY SHOULD HAVE THE RIGHT
TO APPEAL TO THE COUNCIL IN ACCORDANCE WITH ITS RULES." WHILE, AS NOTED
ABOVE, THE ORDER PROVIDES SPECIFICALLY THAT PARTIES MAY FILE EXCEPTIONS
TO ARBITRATION AWARDS WITH THE FEDERAL LABOR RELATIONS COUNCIL UNDER
REGULATIONS PRESCRIBED BY THE COUNCIL, THE ORDER AND THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL ARE SILENT WITH
RESPECT TO THE PROCEDURE TO FOLLOW IN ORDER TO OBTAIN ENFORCEMENT OF
ARBITRATION AWARDS. IN THE INSTANT CASE IT WAS NOTED THAT THE
COMPLAINANT, WHOSE POSITION WAS ESSENTIALLY ADOPTED BY THE ARBITRATOR,
HAD NO REASON TO FILE EXCEPTIONS WITHIN THE TIME LIMITS PRESCRIBED BY
THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL.
THE RESPONDENT RAISES, BY WAY OF DEFENSE, THAT IT IS UNABLE TO MAKE
PAYMENT OF THE AMOUNT INVOLVED BECAUSE NO APPROPRIATION EXISTS FOR
PAYMENT AND A SPECIAL AUTHORIZATION FROM THE COMPTROLLER GENERAL OF THE
UNITED STATES IS NEEDED IN ORDER TO IMPLEMENT THE AWARD. IN THIS
CONNECTION, THE RESPONDENT ASSERTS THAT IT IS WILLING TO CARRY OUT THE
ARBITRATOR'S AWARD, BUT THAT UNTIL AN AUTHORIZATION BY THE COMPTROLLER
GENERAL IS OBTAINED IN ACCORDANCE WITH ITS REQUEST IT IS UNABLE TO DO
SO. IN MY OPINION, THE RESPONDENT'S DEFENSE IN THIS MATTER RAISES MAJOR
POLICY ISSUES-- (1) WHETHER THE ASSISTANT SECRETARY HAS JURISDICTION TO
ENFORCE UNDER SECTION 19 OF THE ORDER A BINDING ARBITRATION AWARD IN
WHICH NO EXCEPTIONS WERE FILED WITH THE FEDERAL LABOR RELATIONS COUNCIL,
AND (2) IF THE ASSISTANT SECRETARY HAS JURISDICTION TO ENFORCE A BINDING
ARBITRATION AWARD, IS A DEFENSE THAT A PARTY CANNOT COMPLY WITH AN
ARBITRATION AWARD UNTIL IT RECEIVES AUTHORIZATION FROM THE COMPTROLLER
GENERAL TO MAKE PAYMENT DISPOSITIVE OF THE MATTER? UNDER THESE
CIRCUMSTANCES, AND PURSUANT TO SECTION 2411.4 OF THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS COUNCIL AND SECTION 203.25(D)
OF THE ASSISTANT SECRETARY'S REGULATIONS, THE ABOVE ISSUES ARE HEREBY
REFERRED TO THE FEDERAL LABOR RELATIONS COUNCIL FOR DECISION. /4/
DATED, WASHINGTON, D.C.
JULY 11, 1974
/1/ ON FEBRUARY 19, 1974, THE COMPLAINANT'S REQUEST TO WITHDRAW ITS
19(A)(2), (3), AND (5) ALLEGATIONS WAS APPROVED BY THE ASSISTANT
REGIONAL DIRECTOR.
/2/ SECTION 13(B) PROVIDES: "A NEGOTIATED PROCEDURE MAY PROVIDE FOR
THE ARBITRATION OF GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF
THE AGREEMENT, BUT NOT OVER ANY OTHER MATTERS. ARBITRATION MAY BE
INVOKED ONLY BY THE AGENCY OR THE EXCLUSIVE REPRESENTATIVE. EITHER
PARTY MAY FILE EXCEPTIONS TO AN ARBITRATOR'S AWARD WITH THE COUNCIL,
UNDER REGULATIONS PRESCRIBED BY THE COUNCIL."
/3/ THE ISSUE IN THE ARBITRATION PROCEEDING AS FRAMED BY THE
ARBITRATOR WAS: "HAS THE EMPLOYER VIOLATED THE PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENT BY REDUCING A CURRENT PAYMENT FOR
DEDUCTED UNION DUES BY AN AMOUNT MISTAKENLY DEDUCTED FROM WAGES OF AN
INELIGIBLE EMPLOYEE AND PAID TO THE UNION PREVIOUSLY?"
/4/ I REJECT THE RESPONDENT'S CONTENTION THAT THE INSTANT COMPLAINT
LACKS SPECIFICITY. THE COMPLAINT HEREIN CLEARLY STATES THAT AN
ARBITRATION AWARD WAS ISSUED UNDER AN AGREEMENT CONTAINING A BINDING
ARBITRATION PROVISION, THAT REVIEW OF THE ARBITRATION AWARD WAS NOT
SOUGHT WITH THE FEDERAL LABOR RELATIONS COUNCIL BY THE RESPONDENT, AND
THAT THE RESPONDENT HAS REFUSED TO COMPLY WITH THE AWARD.
4 A/SLMR 411; P. 466; CASE NO. 60-3455(CA); JULY 10, 1974.
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, SOCIAL SECURITY ADMINISTRATION,
KANSAS CITY PAYMENT CENTER,
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE
A/SLMR NO. 411
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY SOCIAL
SECURITY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (COMPLAINANT), AGAINST THE DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION, KANSAS CITY PAYMENT CENTER,
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE (RESPONDENT) ALLEGING THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
11491 BY FAILING AND REFUSING TO PROVIDE CERTAIN REPORTS AND FACTUAL
DOCUMENTARY MATERIAL WHICH REFLECTED THE PRODUCTION RECORD OF EMPLOYEES
MYRTLE MCBRIDE AND BETTY THOMAS REQUESTED BY THE COMPLAINANT AS
NECESSARY TO THE PROCESSING OF POTENTIAL GRIEVANCES.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT HAD
VIOLATED SECTION 19(A)(1) AND (6) BY FAILING AND REFUSING TO PROVIDE THE
COMPLAINANT WITH REPORTS FILED BY EMPLOYEE MCBRIDE PURSUANT TO ITS
REQUEST IN THE PROCESSING OF A POTENTIAL GRIEVANCE ON BEHALF OF MCBRIDE.
THE ADMINISTRATIVE LAW JUDGE REACHED A DIFFERENT CONCLUSION WITH REGARD
TO THE COMPLAINANT'S REQUEST FOR SUCH REPORTS FILED BY EMPLOYEE BETTY
THOMAS BASED UPON EVIDENCE THAT THOMAS HAD RETAINED COPIES OF HER OWN
REPORTS AND THAT THESE REPORTS ALREADY WERE AVAILABLE TO THE
COMPLAINANT. IN ADDITION THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) AND (6) BY DESTROYING THE
MACHINE UTILIZATION REPORTS RELATIVE TO EMPLOYEE MCBRIDE SUBSEQUENT TO
THE REQUEST FOR SUCH REPORTS BY THE COMPLAINANT. IN REACHING THESE
CONCLUSIONS, THE ADMINISTRATIVE LAW JUDGE FOUND THAT IN JANUARY 1973,
EMPLOYEE THOMAS WAS GIVEN A PROGRESS INTERVIEW BY HER IMMEDIATE
SUPERVISOR WHEREIN SPECIFIC REFERENCE WAS MADE TO CERTAIN MACHINE
UTILIZATION REPORTS AS TO THOMAS' PRODUCTION AND DILIGENCE. EMPLOYEE
THOMAS DISAGREED WITH THE FINDINGS OF HER IMMEDIATE SUPERVISOR DURING
THIS PROGRESS INTERVIEW AND HAD RECOURSE TO THE COMPLAINANT, HER
BARGAINING REPRESENTATIVE, FOR ASSISTANCE IN REBUTTING THE ADVERSE
PORTIONS OF THE PROGRESS INTERVIEW. SIMILARLY, IN FEBRUARY 1973,
EMPLOYEE MCBRIDE WAS GIVEN A PROGRESS INTERVIEW BY HER IMMEDIATE
SUPERVISOR WHEREIN REFERENCE WAS MADE TO CERTAIN REPORTS AS TO HER
PRODUCTION AND DILIGENCE. MCBRIDE ALSO DISAGREED AND WENT TO THE
COMPLAINANT FOR ASSISTANCE IN REBUTTING THE ADVERSE PORTIONS OF THAT
INTERVIEW. PURSUANT TO ITS ROLE AS REPRESENTATIVE OF BOTH THOMAS AND
MCBRIDE, THE COMPLAINANT SERVED A WRITTEN REQUEST FOR COPIES OF THE
MACHINE UTILIZATION REPORTS RELIED UPON BY THE SUPERVISORS OF BOTH
THOMAS AND MCBRIDE DURING THE PROGRESS INTERVIEWS, FOR PURPOSES OF
EVALUATING THE POSSIBILITY OF FURTHER ACTION BY THE COMPLAINANT ON
BEHALF OF THE TWO EMPLOYEES. THE COMPLAINANT WAS ASSURED BY THE
SUPERVISORY PERSONNEL OF THE RESPONDENT THAT, PURSUANT TO THE POLICY OF
THE RESPONDENT, THE MACHINE UTILIZATION REPORTS PERIODICALLY WERE
DESTROYED AND THAT THE REPORTS REQUESTED BY THE COMPLAINANT WERE NO
LONGER AVAILABLE. THEREAFTER, IN MARCH 1973, THE COMPLAINANT LOCATED
THE REPORTS IN QUESTION AND VERIFIED THEIR EXISTENCE TO A RESPONSIBLE
OFFICIAL OF THE RESPONDENT. NEVERTHELESS, SUBSEQUENTLY SUCH REPORTS
WERE DESTROYED BY THE RESPONDENT.
THE ADMINISTRATIVE LAW JUDGE, RELYING ON THE ASSISTANT SECRETARY'S
DECISION IN DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SLMR NO. 323,
FOUND THAT THE REPORTS IN QUESTION CONSTITUTED RELEVANT AND NECESSARY
INFORMATION IN CONNECTION WITH DETERMINING WHETHER OR NOT TO INITIATE
GRIEVANCES, AND THAT THE REFUSAL OF THE RESPONDENT TO MAKE AVAILABLE
SUCH RELEVANT AND NECESSARY INFORMATION CONSTITUTED A VIOLATION OF
SECTION 19(A)(1) AND (6). FURTHER, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT THE RESPONDENT'S CONDUCT HEREIN WAS NOT BASED ON ANY STATUTE OR
GOVERNMENT REGULATION PROHIBITING THE DISCLOSURE OF SUCH INFORMATION.
ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT
HAD VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY ITS CONDUCT IN
FAILING AND REFUSING TO MAKE AVAILABLE THE INFORMATION REQUESTED AND
ALSO BY DESTROYING THE REPORTS REQUESTED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS AND THE ENTIRE RECORD IN THIS CASE, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE.
DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE, SOCIAL SECURITY ADMINISTRATION,
KANSAS CITY PAYMENT CENTER,
BUREAU OF RETIREMENT AND SURVIVORS INSURANCE
AND
SOCIAL SECURITY LOCAL 1336, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO
ON APRIL 4, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG 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 ACTION AS SET FORTH IN THE
ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS. FURTHER, THE
COMPLAINANT WAS GRANTED LEAVE TO FILE AN ANSWERING BRIEF TO THE
RESPONDENT'S EXCEPTIONS AND THE RESPONDENT WAS GRANTED LEAVE TO FILE A
RESPONSE TO THE COMPLAINANT'S 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. /1/ 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 RESPONDENT, THE ANSWERING
BRIEF TO THE RESPONDENT'S EXCEPTIONS FILED BY THE COMPLAINANT, AND THE
RESPONSE TO THE ANSWERING BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE FINDINGS, /2/ CONCLUSIONS, AND RECOMMENDATIONS OF THE ADMINISTRATIVE
LAW JUDGE. /3/
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
HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION, KANSAS
CITY PAYMENT CENTER, BUREAU OF RETIREMENT AND SURVIVORS INSURANCE,
SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO PROVIDE, UPON REQUEST BY SOCIAL SECURITY LOCAL 1336,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ANY FACTUAL DATA
OR DOCUMENTARY MATERIALS UTILIZED TO EVALUATE OR APPRAISE EMPLOYEE
MYRTLE MCBRIDE, OR ANY OTHER BARGAINING UNIT EMPLOYEE REPRESENTED BY
SOCIAL SECURITY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, WHICH ARE NECESSARY FOR SUCH LABOR ORGANIZATION TO DISCHARGE
ITS OBLIGATIONS AS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL OF THE
EMPLOYEES WITHIN THE UNIT.
(B) DESTROYING ANY FACTUAL DATA OR DOCUMENTARY MATERIALS UTILIZED BY
SUPERVISORS IN EVALUATING OR APPRAISING BARGAINING UNIT EMPLOYEES WHICH
HAVE BEEN REQUESTED BY SOCIAL SECURITY LOCAL 1336, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, PURSUANT TO THE DISCHARGE OF ITS
RESPONSIBILITIES AS THE EXCLUSIVE BARGAINING REPRESENTATIVE, WITHOUT
PRIOR CONSULTATION THEREON.
(C) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEE MYRTLE
MCBRIDE, OR ANY OTHER BARGAINING UNIT EMPLOYEE, BY REFUSING TO PROVIDE
SOCIAL SECURITY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, MACHINE UTILIZATION REPORTS OR ANY OTHER FACTUAL DATA OR
DOCUMENTARY MATERIALS WHICH REFLECT THE PRODUCTION OF EMPLOYEE MYRTLE
MCBRIDE, OR ANY OTHER BARGAINING UNIT EMPLOYEE.
(D) 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) UPON REQUEST, MAKE AVAILABLE TO SOCIAL SECURITY LOCAL 1336,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, FACTUAL DATA AND
DOCUMENTARY MATERIALS UTILIZED IN PREPARING REPORTS OF INTERVIEWS,
PERFORMANCE EVALUATIONS OR APPRAISALS OF EMPLOYEE MYRTLE MCBRIDE, OR ANY
OTHER BARGAINING UNIT EMPLOYEE, WHERE SUCH MATERIALS OR DATA ARE
NECESSARY FOR THE DISCHARGE OF THE OBLIGATION OF SOCIAL SECURITY LOCAL
1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, TO REPRESENT
ALL EMPLOYEES IN THE BARGAINING UNIT.
(B) POST AT ITS KANSAS CITY, MISSOURI FACILITY 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 MANAGEMENT, 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 OF MANAGEMENT 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.
JULY 10, 1974
/1/ CONTRARY TO THE ASSERTIONS CONTAINED IN THE RESPONDENT'S
EXCEPTIONS, I FIND THAT THE RECORD IN THIS PROCEEDING CONTAINS NO
EVIDENCE OR SUPPORT FOR A FINDING THAT THE ADMINISTRATIVE LAW JUDGE
EXHIBITED BIAS OR PREJUDICE. ACCORDINGLY, I REJECT THESE ASSERTIONS
MADE BY THE RESPONDENT. MOREOVER, AS TO CERTAIN INADVERTENT ERRORS MADE
BY THE ADMINISTRATIVE LAW JUDGE IN TECHNICAL TERMINOLOGY AND DATES,
THESE WERE NOT CONSIDERED TO AFFECT THE ULTIMATE DISPOSITION OF THE
INSTANT CASE.
/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 SET FORTH BELOW, UNDER THE CIRCUMSTANCES OF THIS CASE, I HAVE
FOUND IT NECESSARY TO MODIFY THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
ORDER AND NOTICE TO EMPLOYEES.
WE WILL NOT REFUSE TO SUPPLY, UPON REQUEST BY SOCIAL SECURITY LOCAL
1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ANY FACTUAL
DATA OR DOCUMENTARY MATERIALS WHICH WERE UTILIZED IN PREPARING REPORTS
OF INTERVIEWS, PERFORMANCE EVALUATIONS OR APPRAISALS AND WHICH REFLECT
THE PRODUCTION OF EMPLOYEE MYRTLE MCBRIDE OR ANY OTHER BARGAINING UNIT
EMPLOYEE.
WE WILL NOT DESTROY ANY FACTUAL DATA OR DOCUMENTARY MATERIALS
UTILIZED BY SUPERVISORS IN EVALUATING OR APPRAISING BARGAINING UNIT
EMPLOYEES WHICH ARE REQUESTED BY SOCIAL SECURITY LOCAL 1336, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, AND WHICH ARE NECESSARY FOR
THE SOCIAL SECURITY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, TO DISCHARGE ITS OBLIGATIONS TO EMPLOYEES IN THE
BARGAINING UNIT, WITHOUT PRIOR CONSULTATION THEREON.
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, MAKE AVAILABLE TO SOCIAL SECURITY LOCAL 1336,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, FACTUAL DATA AND
DOCUMENTARY MATERIALS UTILIZED IN PREPARING REPORT OF INTERVIEWS,
PERFORMANCE EVALUATIONS OR APPRAISALS OF EMPLOYEE MYRTLE MCBRIDE, OR ANY
OTHER BARGAINING UNIT EMPLOYEE, WHICH ARE NECESSARY FOR SOCIAL SECURITY
LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, TO
DISCHARGE ITS OBLIGATION TO REPRESENT ALL EMPLOYEES IN THE BARGAINING
UNIT.
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 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
DEPARTMENT OF HEALTH, EDUCATION, AND
WELFARE, SOCIAL SECURITY ADMINISTRATION,
KANSAS CITY PAYMENT CENTER, BUREAU OF
RETIREMENT AND SURVIVORS INSURANCE
SOCIAL SECURITY LOCAL 1336, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
MR. FRANCIS A. DIPPEL
BUREAU OF RETIREMENT AND
SURVIVORS INSURANCE
ROOM 516 ALTMEYER BUILDING
6501 SECURITY BOULEVARD
BALTIMORE, MARYLAND 21235
JAMES ROSA, ESQUIRE
NATIONAL AFGE HEADQUARTERS
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C.
BEFORE: BURTON S. STERNBURG
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON AUGUST 10, 1973,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY SOCIAL SECURITY LOCAL 1336,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, (HEREINAFTER
CALLED THE UNION OR AFGE), AGAINST THE SOCIAL SECURITY ADMINISTRATION,
KANSAS CITY PAYMENT CENTER, (HEREINAFTER CALLED THE RESPONDENT OR
AGENCY), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
DIRECTOR FOR THE KANSAS CITY, MISSOURI, REGION ON NOVEMBER 30, 1973.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT REFUSED THE
UNION'S REQUEST FOR, AND LATER DESTROYED, CERTAIN DATA RELIED UPON BY
SUPERVISORY PERSONNEL IN GIVING ADVERSE EVALUATIONS TO TWO EMPLOYEES,
ALL, IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON FEBRUARY 12, 1974, IN
KANSAS CITY, 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. /1/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING CONCLUSIONS AND
RECOMMENDATIONS:
RESPONDENT OPERATES A COMPUTER FACILITY IN KANSAS CITY, MISSOURI,
KNOWN AS MID-AMERICA PROGRAM CENTER, WHEREIN, AMONG OTHER THINGS, IT IS
INVOLVED IN THE TRANSCRIPTION OF CERTAIN DATA OR "HARD COPY" INTO
COMPUTER LANGUAGE FOR FURTHER PROCESSING THROUGH RESPONDENT'S COMPUTERS.
PRIOR TO NOVEMBER 1971, THE TRANSCRIPTION OF "HARD COPY" INTO THE
COMPUTERS WAS ACCOMPLISHED BY MEANS OF A KEY PUNCH SYSTEM WHEREBY THE
INFORMATION WAS PUNCHED OUT ON CARDS WHICH WERE LATER MANUALLY PROCESSED
PRIOR TO FEEDING THE INFORMATION THEREON INTO THE COMPUTERS. IN
NOVEMBER 1971, RESPONDENT SWITCHED ITS OPERATION TO A MORE SOPHISTICATED
SYSTEM KNOWN AS KEYPLEX. THE KEYPLEX SYSTEM DID AWAY WITH THE OLD PUNCH
CARD AND SUBSTITUTED THEREFOR A DISC PACK WHICH ULTIMATELY CONVEYED THE
INFORMATION RECORDED THEREON TO MAGNETIC TAPE.
THE KEYPLEX MACHINES WERE NOT OWNED BY RESPONDENT, BUT RATHER LEASED
FROM THE HONEYWELL COMPANY. ACCORDING TO THE TERMS OF THE LEASE EACH
PIECE OF KEYPLEX EQUIPMENT HAD TO BE OPERATIONAL NINETY-FIVE PERCENT OF
THE TIME FOR A PERIOD OF THIRTY CONSECUTIVE DAYS FROM DATE OF
INSTALLATION OR THE RESPONDENT WAS NOT OBLIGATED TO CONTINUE THE LEASE.
ADDITIONALLY, FOLLOWING THE INITIAL FIRST THIRTY DAYS OF THE LEASE,
RESPONDENT WAS ALLOWED A REDUCTION IN ITS RENTAL OR LEASE AGREEMENT IF
THE DOWN TIME ON THE MACHINE EXCEEDED A CERTAIN PERCENTAGE OF A
480-MINUTE DAY. IN VIEW OF THE FOREGOING CONSIDERATIONS AND ALSO FOR
PURPOSE OF DETERMINING THE EFFECTIVENESS OF THE KEYPLEX EQUIPMENT AS
COMPARED TO THE OBSOLETE KEY PUNCH EQUIPMENT, RESPONDENT DEVISED AND
INSTITUTED A MACHINE UTILIZATION REPORT (HEREINAFTER REFERRED TO AS
MACHINE UTILIZATION REPORTS OR TIME SHEETS) WHICH EACH KEYPLEX OPERATOR
WAS REQUIRED TO FILL OUT AT THE END OF EACH WORK DAY.
THE MACHINE UTILIZATION REPORT CONTAINED NUMBEROUS COLUMNS WHICH
INDICATED, AMONG OTHER THINGS, DOWN TIME, IDLE TIME, REKEY TIME AND ALSO
THE AMOUNT OF WORK PROCESSED BY EACH EMPLOYEE ON EACH MACHINE PER DAY.
THE COMPLETED REPORTS WERE SUBMITTED DAILY BY THE EMPLOYEES TO THEIR
RESPECTIVE SUPERVISORS FOR VERIFICATION. /2/ ACCORDING TO THE
RESPONDENT'S POLICY AS ESPOUSED BY NUMBEROUS BULLETINS AND OTHER
CIRCULATED MEMORANDA EMANATING FROM RESPONDENT'S MAIN HEADQUARTERS IN
BALTIMORE, MARYLAND, THE AFOREMENTIONED REPORTS, AS WELL AS OTHER
MACHINE REPORTS, WERE NOT TO BE USED FOR ANY PURPOSES OTHER THAN
EVALUATING EQUIPMENT.
PURSUANT TO AGENCY REGULATIONS AND/OR PROCEDURE, ON OR ABOUT JANUARY
18, 1973, KEYPLEX OPERATOR BETTY THOMAS WAS GIVEN HER SEMI-ANNUAL
PROGRESS INTERVIEW BY HER IMMEDIATE SUPERVISOR, LAVERNE HUGHES. DURING
THE COURSE OF THE INTERVIEW HUGHES INFORMED THOMAS THAT THOMAS'
PRODUCTION WAS SUBSTANDARD, WHEREUPON THOMAS, WHO HAD CARBON COPIES OF
HER OWN DAILY MACHINE REPORTS, ASKED HUGHES TO PRODUCE COPIES OF THE
MACHINE UTILIZATION REPORTS SUBMITTED BY HER FELLOW KEYPLEX OPERATORS SO
THAT SHE MIGHT COMPARE PRODUCTION. HUGHES RESPONDED THAT SHE DID NOT
HAVE SUCH REPORTS. A WRITTEN REPORT OF THE INTERVIEW WAS ISSUED
SOMETIME IN MARCH 1973. UPON RECEIPT OF THE WRITTEN REPORT OF THE
INTERVIEW WHICH AMOUNTED TO AN ADVERSE APPRAISAL, THOMAS WITH THE HELP
OF THE UNION, WHICH WAS THE RECOGNIZED REPRESENTATIVE OF THE KEYPLEX
OPERATORS, FILED A REBUTTAL.
SIMILARLY, ON FEBRUARY 6, 1973, KEYPLEX OPERATOR MYRTLE MCBRIDE WAS
GIVEN HER SEMI-ANNUAL PROGRESS INTERVIEW BY HER IMMEDIATE SUPERVISOR,
BLANCHE SHAW. DURING THE COURSE OF THE INTERVIEW, SHAW ADVISED MCBRIDE
THAT MCBRIDE'S PRODUCTION WAS SUB-STANDARD. WHEN MCBRIDE QUESTIONED
SHAW'S CONCLUSION WITH RESPECT TO MCBRIDE'S PRODUCTION, SHAW CITED AS A
PARTIAL BASIS RESPECT TO MCBRIDE'S PRODUCTION, SHAW CITED AS A PARTIAL
BASIS THEREFOR THE MACHINE UTILIZATION REPORTS MADE OUT BY MCBRIDE ON A
DAILY BASIS. MCBRIDE THEN ASKED SHAW FOR THE MACHINE UTILIZATION
REPORTS AND SHAW REPLIED THAT SHE DID NOT HAVE THEM. SUBSEQUENTLY, ON
MARCH 7, 1973, SHAW, IN ACCORDANCE WITH AGENCY PRACTICE, COMPOSED A
WRITTEN REPORT OF THE ORAL INTERVIEW WHEREIN SHE AGAIN MADE REFERENCE TO
THE MACHINE UTILIZATION REPORTS SUBMITTED BY MCBRIDE AS A BASIS FOR HER
CONCLUSION THAT MCBRIDE'S PRODUCTION WAS BELOW STANDARD. SHAW'S WRITTEN
REPORT FURTHER NOTED THAT "ON ONE OR MORE OCCASSI4NS I HAVE OBSERVED
THAT WORK RECORDED ON YOUR TIME SHEETS AND CONTROL SHEETS DID NOT AGREE
WHEN LISTED OUT ON THE CONSOLE..."
FOLLOWING RECEIPT OF THE AFOREMENTIONED WRITTEN REPORT, MCBRIDE, WITH
THE ASSISTANCE OF THE UNION, FILED A REBUTTAL ATTACKING THE ADVERSE
APPRAISAL CONTAINED THEREIN.
SHORTLY AFTER THOMAS RECEIVED HER INITIAL INTERVIEW ON OR ABOUT
JANUARY 18, 1973, SHE CONTACTED THE UNION AND REQUESTED ITS AID IN
ATTACKING AND/OR REBUTTING SUPERVISOR HUGHES' CONCLUSION WITH RESPECT TO
HER PRODUCTION OUTPUT. A SIMILAR REQUEST WAS MADE OF THE UNION BY
MCBRIDE IN EARLY FEBRUARY 1973. THEREAFTER, PURSUANT TO THE
AFOREMENTIONED REQUESTS OF THOMAS AND MCBRIDE, SHOP STEWARD SYLVIA
TEHRANI APPROACHED SUPERVISOR SHAW AND ASKED HER IF SHE WOULD CONSIDER
AMENDING OR CHANGING THE CONCLUSION STATED IN HER INTERVIEW WITH
MCBRIDE. UPON RECEIVING A NEGATIVE REPLY, TEHRANI ASKED SHAW FOR COPIES
OF MCBRIDE'S TIME SHEETS (MACHINE TABULATION REPORTS) THAT HAD BEEN
TURNED IN DURING THE PRESENT RATING PERIOD. SHAW, WHO EXPRESSED DOUBT
THAT SHE HAD THE AUTHORITY TO MAKE THE TIME SHEETS AVAILABLE, SUGGESTED
TO TEHRANI THAT SHE PUT HER REQUEST IN WRITING. TEHRANI FOLLOWED SHAW'S
SUGGESTION AND ON OR ABOUT FEBRUARY 12, 1973, DIRECTED WRITTEN REQUESTS
TO SUPERVISORS HUGHES AND SHAW WHEREIN SHE ASKED FOR THE RESPECTIVE TIME
SHEETS OF MCBRIDE AND THOMAS FOR THE APPRAISAL PERIOD THEN UNDER
CONSIDERATION. BOTH SUPERVISORS SEPARATELY RESPONDED BY TELEPHONE ON
THE AFTERNOON OF FEBRUARY 12, 1973, AND INFORMED TEHRANI THAT THEY DID
NOT HAVE THE POWER TO GRANT HER REQUEST AND SUGGESTED THAT SHE CONTACT
THEIR SUPERIOR, SECTION CHIEF ED MACHOLAN. UPON CONTACTING MACHOLAN,
PER THE SUGGESTION OF SUPERVISORS HUGHES AND SHAW, TEHRANI WAS INFORMED
THAT HE COULD NOT GIVE HER THE REQUESTED TIME SHEETS BECAUSE THEY WERE
DESTROYED MONTHLY AND THAT IN ANY EVENT SHE SHOULD TAKE THE WHOLE MATTER
UP WITH HIS IMMEDIATE SUPERVISOR, BRANCH CHIEF JAMES HALL.
SUBSEQUENTLY, A MEETING WAS HELD ON FEBRUARY 14, 1973, WITH HALL AND
HIS ASSISTANT, AND VARIOUS REPRESENTATIVES OF THE UNION, INCLUDING
TEHRANI AND UNION PRESIDENT DWIGHT JOHNSON. DURING THE MEETING TEHRANI
EXPLAINED HER PROBLEM CONCERNING ONE ITEM OF THE APPRAISALS, I.E.,
PRODUCTION, AND INFORMED HALL THAT IF THE UNION COULD SEE THE TIME
SHEETS SUBMITTED ON A DAILY BASIS BY MCBRIDE AND THOMAS FOR THE
APPRAISAL PERIOD THEN UNDER CONSIDERATION THEY COULD RESOLVE THE
PROBLEM. HALL INFORMED TEHRANI THAT HE COULD NOT GRANT HER REQUEST
BECAUSE THE RESPONDENT DID NOT HAVE THE TIME RECORDS SINCE THEY WERE
DESTROYED PERIODICALLY. ACCORDING TO HALL, IT WAS HIS UNDERSTANDING
THAT THE TIME RECORDS WERE SUPPOSED TO BE DESTROYED AFTER FINAL
VERIFICATION AND COMPILATION, WHICH TOOK ABOUT A MONTH.
ON MARCH 8, 1973, TEHRANI WAS PASSING THROUGH THE P.R.P. BRANCH
TABULATING ROOM DURING HER LUNCH BREAK AND STOPPED TO TALK TO A FEW
EMPLOYEES WORKING THEREIN. SHE WAS INFORMED THAT THE TIME SHEETS SHE
HAD BEEN LOOKING FOR, AND HAD REQUESTED OF RESPONDENT, WERE STACKED IN
THE REAR OF THE ROOM. SHE WENT IMMEDIATELY TO THE REAR OF THE ROOM AND
DISCOVERED SEVERAL STACKS OF THE MACHINE UTILIZATION REPORTS WHICH WERE
CHRONOLOGICALLY FILED FOR THE PERIOD JUNE 1972 THROUGH FEBRUARY 1973.
THEREUPON, SHE LEFT THE TABULATING ROOM AND SOUGHT OUT TWO UNION
OFFICERS, REED AND BURKENDINE, INFORMED THEM OF HER DISCOVERY AND HAD
THEM ACCOMPANY HER BACK TO THE TABULATING ROOM FOR PURPOSE OF
VERIFICATION. FOLLOWING VERIFICATION OF TEHRANI'S DISCOVERY, THE THREE
INDIVIDUALS DECIDED TO GO BACK TO THE UNION'S OFFICE AND REPORT THE
EXISTENCE OF THE REQUESTED DOCUMENTS AND SEEK ADVICE. ON THE WAY OUT OF
THE TABULATING ROOM TEHRANI PICK UP SEVERAL COPIES OF THE MACHINE
UTILIZATION REPORTS FROM ONE OF THE STACKS. THESE REPORTS BORE VARIOUS
DATES IN NOVEMBER 1972.
FOLLOWING A DISCUSSION AMONG THE UNION REPRESENTATIVES WITH RESPECT
TO THE DISCOVERY, ARTHUR JOHNSON, PRESIDENT OF THE UNION, TELEPHONED
RICK BARKER, DIRECTOR OF MANAGEMENT, EXPLAINED THE PROBLEM AND
CIRCUMSTANCES SURROUNDING THE UNION'S REQUEST FOR THE MACHINE TABULATION
REPORTS AND ASKED HIM TO CONDUCT AN INVESTIGATION OF THE MATTER.
JOHNSON FURTHER INFORMED BARKER THAT THE REASON HE WAS CONTACTING BARKER
RATHER THAN HALL WAS THE UNION'S FEAR THAT HALL WOULD DESTROY THE
DOCUMENTS. BARKER PROMISED JOHNSON THAT HE WOULD LOOK INTO THE MATTER
AND GET BACK TO HIM AT A LATER DATE.
THEREAFTER, ON AN UNSPECIFIED DATE BETWEEN MARCH 8 AND MARCH 30,
1973, THE MACHINE TABULATION REPORTS WERE DESTROYED BY THE RESPONDENT'S
REPRESENTATIVES. ON MARCH 30, 1973, DURING A MEETING BETWEEN
REPRESENTATIVES OF BOTH THE RESPONDENT AND THE UNION, WHICH WAS CALLED
FOR PURPOSES OF DISCUSSING THE PROBLEM OF THE MACHINE TABULATION
REPORTS, THE UNION REPRESENTATIVES WERE INFORMED FOR THE FIRST TIME THAT
THE REPORTS HAD BEEN DESTROYED. AT THIS MEETING THE UNION
REPRESENTATIVES WERE SHOWN A COPY OF A MEMORANDUM DATED MARCH 9, 1973,
FROM BRANCH CHIEF HALL TO CHIEF, PAYMENT RECORDS PROCESSING BRANCH WHICH
READS AS FOLLOWS:
IT WAS BROUGHT TO MY ATTENTION THAT INDIVIDUAL MACHINE UTILIZATION
REPORTS DATING BACK TO
JUNE 1972 WERE FOUND IN THE TABULATING UNIT. THESE REPORTS SHOULD
HAVE BEEN DISPOSED OF WHEN
THE COMPOSITE REPORT WAS FINALIZED AND SUBMITTED TO OUR CENTRAL
OFFICE. IT CAME AS A COMPLETE
SURPRISE TO ME THAT SUCH REPORTS WERE RETAINED. JUST RECENTLY I
ASSURED UNION REPRESENTATIVES
THAT THESE REPORTS WERE DISPOSED OF ONCE OUR MONTHLY MACHINE
UTILIZATION REPORT HAS BEEN
SUBMITTED. IT WAS EMBARRASSING TO BRANCH MANAGEMENT WHEN SOMETHING
LIKE THIS HAPPENS. IN THE
FUTURE, WHEN THE MONTHLY REPORT HAS BEEN ASSEMBLED AND APPROVED THE
INDIVIDUAL SHEETS WILL BE
DISPOSED OF IMMEDIATELY.
SUBSEQUENT TO THE AFOREMENTIONED EVENTS, RESPONDENT, PER A UNION
SUGGESTION, REVISED THE FORMAT OF THE MACHINE UTILIZATION REPORTS SO
THAT NO PRODUCTION FIGURES WERE RECORDED THEREON.
SECTION 10(E) OF THE EXECUTIVE ORDER PROVIDES AS FOLLOWS:
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 INTERESTS 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.
IN INTERPRETING THE AFORECITED PROVISION OF THE ORDER, THE ASSISTANT
SECRETARY HAS CONCLUDED THAT SUCH PROVISION CONVERS A RESPONSIBILITY
UPON A LABOR ORGANIZATION FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT. THE ASSISTANT SECRETARY HAS FURTHER CONCLUDED
THAT "CLEARLY, IT (A LABOR ORGANIZATION) CANNOT MEET THIS RESPONSIBILITY
IF IT IS PREVENTED FROM OBTAINING RELEVANT AND NECESSARY INFORMATION IN
CONNECTION WITH THE PROCESSING OF GRIEVANCES." ACCORDINGLY, THE REFUSAL
OF AN AGENCY TO MAKE AVAILABLE SUCH RELEVANT AND NECESSARY INFORMATION,
BARRING ANY STATUTE OR GOVERNMENT REGULATION PROHIBITING THE DISCLOSURE
OF SAME, CONSTITUTES A VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER. /3/
IN THE INSTANT CASE, RESPONDENT REFUSED TO MAKE AVAILABLE TO THE
UNION THE MACHINE UTILIZATION REPORTS WHICH WERE RELIED UPON IN PART BY
SUPERVISORS HUGHES AND SHAW IN MAKING THEIR RESPECTIVE APPRAISALS OF
EMPLOYEES THOMAS AND MCBRIDE. INASMUCH AS THE REPORTS, PARTICULARLY IN
THE CASE OF MCBRIDE, WERE THE ONLY TANGIBLE EVIDENCE FROM WHICH THE
UNION COULD VERIFY OR ATTACK THE SUPERVISORS' CONCLUSIONS WITH RESPECT
TO THE EMPLOYEES' PRODUCTION AND DETERMINE WHETHER OR NOT TO GO THROUGH
THE FORMALITY OF PROCESSING GRIEVANCES, I FIND THAT THE UNION WAS
ENTITLED TO THE REQUESTED INFORMATION, I.E., MACHINE UTILIZATION
REPORTS. /4/
RESPONDENT DOES NOT CONTEND THAT THE INFORMATION CONTAINED IN THE
MACHINE UTILIZATION REPORTS IS NOT RELEVANT TO AN ANALYSIS OF THE
EMPLOYEES' PERFORMANCE IN THE AREA OF PRODUCTION. RATHER, RESPONDENT
DEFENDS ITS ACTIONS ON THE GROUNDS THAT THE REPORTS ARE PRIVILEGED
COMMUNICATIONS AND THAT IN ANY EVENT, THE RELIANCE THEREON BY THE
SUPERVISORS FOR PURPOSES OF MAKING APPRAISALS WAS CONTRARY TO THE POLICY
OF THE AGENCY. IN SUPPORT OF ITS CONTENTION THAT THE DOCUMENTS ARE
PRIVILEGED THE RESPONDENT RELIES ON SECTION 4(B)(5) OF THE PUBLIC
INFORMATION SECTION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 552
AND THE EXCLUSIONARY LANGUAGE CONTAINED IN SECTION 11(B) OF EXECUTIVE
ORDER 11491.
INASMUCH AS THE REQUESTED INFORMATION, WHICH WAS A PRODUCT OF THE
EMPLOYEES INVOLVED, NEITHER BEARS ON THE MISSION OF THE AGENCY, ETC.,
NOR CONSTITUTES INTER-AGENCY OR INTRA-AGENCY MEMORANDA OR LETTERS
UNDERLYING ANY POLICY DETERMINATIONS, I FIND THE RESPONDENT'S CONTENTION
THAT THE INFORMATION IS PRIVILEGED TO BE WITHOUT MERIT. MOREOVER,
ASSUMING THAT CERTAIN PARTS OF THE INFORMATION CONTAINED IN THE MACHINE
UTILIZATION REPORTS ARE PRIVILEGED, IN VIEW OF THE MAKE-UP OF THE
REPORTS, RESPONDENT COULD HAVE EASILY DELETED THE OBJECTIONABLE MATERIAL
THEREFROM AND SUBMITTED TO THE UNION THE REQUESTED INFORMATION BEARING
SOLELY ON THE AFFECTED EMPLOYEES' PRODUCTION. WHILE A UNION IS ENTITLED
TO ALL INFORMATION NECESSARY FOR INTELLIGENT REPRESENTATION AND AN
AGENCY IS OBLIGATED TO SUPPLY SAME, THE INFORMATION NEED NOT BE IN THE
EXACT FROM REQUESTED. /5/ IN THIS LATTER REGARD, I NOTE THAT THE
RESPONDENT AT NO TIME PRIOR TO THE DESTRUCTION OF THE NEWLY DISCOVERED
REPORTS RAISED THE ISSUE OF "PRIVILEGE", BUT INSTEAD TOOK IT UPON ITSELF
TO DESTROY THE DOCUMENTS WITHOUT ANY PRIOR CONSULTATION WITH THE UNION.
SUCH ACTION HAD THE EFFECT OF DEPRIVING THE UNION OF THE ONLY
DOCUMENTARY EVIDENCE AVAILABLE FOR ANALYZING THE MERITS OF THE
APPRAISALS AS THEY PERTAINED TO THE EMPLOYEES' PRODUCTION.
AS TO THE RESPONDENT'S SECOND CONTENTION, I.E., THAT THE SUPERVISORS
ACTED CONTRARY TO AGENCY POLICY, SUFFICETH TO SAY, THAT A PRINCIPAL IS
RESPONSIBLE FOR THE ACTS OF ITS AGENTS. ADDITIONALLY, RELIANCE ON
SPECIFIC INFORMATION BY A RESPONDENT IS NOT A CONDITION PRECEDENT TO THE
OBLIGATION TO SUPPLY INFORMATION, SOLELY IN ITS POSSESSION, NECESSARY
FOR INTELLIGENT REPRESENTATION OR BARGAINING.
IN VIEW OF THE FOREGOING CONSIDERATIONS, I CONCLUDE THAT RESPONDENT,
BY ITS ACTIONS IN REFUSING THE UNION'S REQUEST FOR, AND LATER
DESTROYING, THE MACHINE UTILIZATION REPORTS PREPARED BY EMPLOYEE
MCBRIDE, REFUSED TO CONSULT, CONFER AND NEGOTIATE WITH A LABOR
ORGANIZATION IN VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER. I
FURTHER CONCLUDE THAT BY THIS SAME CONDUCT, RESPONDENT VIOLATED SECTION
19(A)(1) OF THE EXECUTIVE ORDER IN THAT SUCH CONDUCT INHERENTLY
INTERFERES WITH, RESTRAINS AND COERCES UNIT EMPLOYEES IN THEIR RIGHT TO
HAVE THEIR EXCLUSIVE REPRESENTATIVE ACT FOR AND REPRESENT THEIR
INTERESTS IN MATTERS CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
PRACTICES AS ASSURED BY SECTION 10(E) OF THE ORDER.
LASTLY, IT IS CONCLUDED THAT RESPONDENT'S ACTION IN REFUSING THE
UNION'S REQUEST FOR, AND SUBSEQUENTLY DESTROYING, THE MACHINE
UTILIZATION REPORTS OF EMPLOYEE THOMAS WAS NOT VIOLATIVE OF SECTIONS
19(A)(1) AND (6) OF THE EXECUTIVE ORDER. TO JUSTIFY A 19(A)(1) AND (6)
VIOLATION IN THE AREA OF "INFORMATION" IT MUST BE SHOWN THAT THE
INFORMATION REQUESTED IS NECESSARY FOR INTELLIGENT BARGAINING, IS NOT
READILY AVAILABLE FROM SOME OTHER SOURCE, AND THAT WITHOUT WHICH THE
UNION WILL BE IMPEDED IN CARRYING OUT THE RESPONSIBILITIES IMPOSED UPON
IT BY THE ORDER. SUCH IS NOT THE CASE WITH RESPECT TO THOMAS, WHO,
ADMITTEDLY, HAD COPIES OF THE REPORTS AND COULD HAVE EASILY MADE THEM
AVAILABLE TO THE UNION. IN THESE CIRCUMSTANCES, I FIND NO OBLIGATION
IMPOSED UPON THE RESPONDENT TO DUPLICATE INFORMATION READILY AVAILABLE
TO THE UNION.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, BY VIRTUE OF ITS ACTIONS IN REFUSING TO SUPPLY AND/OR
DESTROYING THE MACHINE UTILIZATION REPORTS OF EMPLOYEE MCBRIDE, I
RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER
DESIGNED TO EFFECTUATE THE POLICIES OF THE EXECUTIVE ORDER. /6/ I ALSO
RECOMMEND THAT THE SECTIONS 19(A)(1) AND (6) ALLEGATIONS PREDICATED ON
RESPONDENT'S REFUSAL TO SUPPLY THE MACHINE UTILIZATION REPORTS OF
EMPLOYEE THOMAS 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 DEPARTMENT OF
HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION, KANSAS
CITY PAYMENT CENTER, BUREAU OF RETIREMENT AND SURVIVORS INSURANCE SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO SUPPLY TO SOCIAL SECURITY LOCAL 1336, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE MACHINE UTILIZATION
REPORTS OR ANY OTHER FUTURE REPORTS WHICH REFLECT THE PRODUCTION OF
EMPLOYEE MYRTLE MCBRIDE.
(B) DESTROYING ANY DOCUMENTARY MATERIALS REQUESTED BY LOCAL 1336,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, WITHOUT PRIOR
CONSULTATION THEREON.
(C) INTERFERING WITH, RESTRAINING OR COERCING ITS EMPLOYEES BY
REFUSING TO SUPPLY TO SOCIAL SECURITY LOCAL 1336, MACHINE UTILIZATION
REPORTS OR ANY OTHER FUTURE REPORTS WHICH REFLECT THE PRODUCTION OF
EMPLOYEE MYRTLE MCBRIDE.
(D) 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) POST AT ITS KANSAS CITY, MISSOURI FACILITY 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 MANAGEMENT; 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 OF MANAGEMENT SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED OR 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 DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
DATED: APRIL 4, 1974
WASHINGTON, D.C.
WE WILL NOT REFUSE TO SUPPLY TO SOCIAL SECURITY LOCAL 1336, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, THE MACHINE UTILIZATION
REPORTS OR ANY OTHER FUTURE REPORTS WHICH REFLECT THE PRODUCTION OF
EMPLOYEE MYRTLE MCBRIDE OR ANY OTHER EMPLOYEE.
WE WILL NOT IN THE FUTURE DESTROY ANY MATERIALS REQUESTED BY SOCIAL
SECURITY LOCAL 1336, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, WITHOUT PRIOR CONSULTATION THEREON.
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, MAKE AVAILABLE TO SOCIAL SECURITY LOCAL 1336,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ANY AND ALL
DOCUMENTARY MATERIALS REFLECTING ON, OR UNDERLYING ADVERSE EMPLOYEE
APPRAISALS.
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 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/ BOTH PARTIES FILED POST-HEARING BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
/2/ INASMUCH AS EACH MACHINE UTILIZATION REPORT WAS BASED UPON A
480-MINUTE DAY, EACH MINUTE THEREIN HAD TO BE ACCOUNTED FOR. DUE TO
THIS REQUIRED VERIFICATION BY THE RESPECTIVE SUPERVISORS AND SINCE EACH
STEP OF A BATCH OF WORK OR PARTICULAR JOB HAD TO BE FULLY COMPLETED
BEFORE ANOTHER KEYPLEX OPERATOR COULD "KEY IN" ON THE JOB FOR FURTHER
PROCESSING, ANY ERRORS, INTENTIONAL OR OTHERWISE, AS FAR AS LISTED
PRODUCTION ON THE MACHINE UTILIZATION REPORTS, WOULD COME TO THE
SUPERVISOR'S IMMEDIATE ATTENTION THE NEXT MORNING DURING REVIEW OF THE
REPORTS PRIOR TO MAKING FURTHER ASSIGNMENTS WITH RESPECT TO THE WORK
BEING FED INTO THE KEYPLEX SYSTEM. ACCORDINGLY, DUE TO THE COMPOSITION
OF THE MACHINE UTILIZATION REPORTS, THE SUPERVISORS COULD DETERMINE AND
OBSERVE THE DAILY PRODUCTION ACCOMPLISHMENTS OF THE EMPLOYEES UNDER
THEIR RESPECTIVE SUPERVISION.
/3/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY A/SLMR NO. 323
/4/ WITH RESPECT TO THE MACHINE TABULATION REPORTS SUBMITTED ON A
DAILY BASIS BY THOMAS, WHO ADMITTEDLY HAD COPIES OF SAME, I FIND, FOR
REASONS SET FORTH INFRA, THAT THE RESPONDENT WAS UNDER NO OBLIGATION TO
MAKE THEM AVAILABLE TO THE UNION.
/5/ ALTHOUGH THE DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IN
THE PRIVATE SECTOR ARE NOT CONTROLLING, IT IS NOTED THAT THE BOARD HAS
REACHED SIMILAR CONCLUSIONS. CF. THE CINCINNATI STEEL CASTING COMPANY,
86 NLRB 592; LASKO METAL PRODUCTIONS INC., 148 NLRB 976; AND UNITED
AIRCRAFT CORP., 192 NLRB NO. 62.
/6/ INASMUCH AS THE MACHINE UTILIZATION REPORTS HAVE BEEN DESTROYED,
AN AFFIRMATIVE ORDER WITH RESPECT THERETO, WOULD BE FUTILE. I WILL
THEREFORE MAKE THE RECOMMENDED ORDER AND NOTICE BROADER THAN USUAL.
4 A/SLMR 410; P. 460; CASE NO. 72-3878; JULY 9, 1974.
DEPARTMENT OF THE AIR FORCE,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
A/SLMR NO. 410
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1001 (COMPLAINANT)
ALLEGING THAT THE DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR FORCE
BASE, CALIFORNIA, (RESPONDENT) VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER BY CERTAIN CONDUCT OF ITS EMPLOYEE RELATIONS SPECIALIST IN THE
CIVILIAN PERSONNEL OFFICE. ESSENTIALLY, THE COMPLAINT ALLEGES THAT THE
RESPONDENT LIMITED, AT A GRIEVANCE ADJUSTMENT MEETING, THE PARTICIPATION
OF THE COMPLAINANT AND REFUSED TO CONSULT, CONFER OR NEGOTIATE WITH THE
COMPLAINANT.
THE GRIEVANCE INVOLVED THE RESPONDENT'S ASSIGNMENT OF THE EMPLOYEE
INVOLVED TO WORK WHICH, DUE TO HIS HEALTH, HE COULD NOT PERFORM. AT THE
GRIEVANCE MEETING, HELD ON APRIL 24, 1972, THE COMPLAINANT REQUESTED
CERTAIN MEDICAL RECORDS OF THE RESPONDENT CONCERNING A PHYSICAL
EXAMINATION UNDERGONE BY THE EMPLOYEE. THIS REQUEST WAS REFUSED ON THE
GROUND THAT THE INFORMATION COULD BE RELEASED ONLY TO THE EMPLOYEE'S
PRIVATE PHYSICIAN IN ACCORDANCE WITH CERTAIN REGULATIONS. AT THIS
MEETING THE COMPLAINANT REQUESTED ALSO INFORMATION IN WRITING
DEMONSTRATING THE EFFORTS MADE BY THE RESPONDENT TO OBTAIN A JOB WHICH
THE EMPLOYEE'S HEALTH WOULD ALLOW HIM TO PERFORM. THIS REQUEST WAS
REFUSED BY THE RESPONDENT, ALTHOUGH THE RESPONDENT'S REPRESENTATIVE
INFORMED THE COMPLAINANT OF THE PLACEMENT DIVISION'S ACTION ON BEHALF OF
THE EMPLOYEE.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE COMPLAINANT WAS GIVEN
ADEQUATE NOTICE OF THE GRIEVANCE MEETING OF APRIL 24, AND THAT ALTHOUGH
THE RESPONDENT INADVERTENTLY FAILED TO PROVIDE THE COMPLAINANT WITH ITS
USUAL WRITTEN NOTIFICATION, THE RECORD DID NOT ESTABLISH ANY PREJUDICE
RESULTING TO THE COMPLAINANT OR THE GRIEVANT BECAUSE OF THE LACK OF
WRITTEN NOTICE. THE ADMINISTRATIVE LAW JUDGE CONCLUDED ALSO THAT THE
COMPLAINANT "FAILED TO SHOW BY CONVINCING EVIDENCE" THAT THE
RESPONDENT'S REPRESENTATIVE INTERFERED WITH THE COMPLAINANT'S
REPRESENTATION OF THE GRIEVANT, OR REFUSED TO ACCORD THE COMPLAINANT
FULL RIGHTS OF PARTICIPATION.
WITH REGARD TO THE ALLEGATION CONCERNING THE RESPONDENT'S FAILURE TO
PRODUCE MEDICAL RECORDS REQUESTED BY THE COMPLAINANT, THE ADMINISTRATIVE
LAW JUDGE REASONED THAT THE RESPONDENT'S REFUSAL TO RELEASE SUCH RECORDS
WAS IN ACCORDANCE WITH REGULATIONS COVERING DISCLOSURE OF MEDICAL
INFORMATION, AND CONCLUDED THAT THE RESPONDENT'S "SECTION 19(A)(6)
OBLIGATIONS IN THE CONTEXT OF THE GRIEVANCE ADJUSTMENT MEETING WERE NOT
EVADED."
FINALLY, WITH REGARD TO THE COMPLAINANT'S REQUEST FOR INFORMATION IN
WRITING REGARDING THE EFFORTS OF THE RESPONDENT TO FIND AN ALTERNATIVE
JOB FOR THE EMPLOYEE, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
COMPLAINANT FAILED TO DEMONSTRATE UNDER WHAT APPLICABLE REGULATIONS OR
PROVISIONS OF THE ORDER THE RESPONDENT WAS OBLIGATED TO SO CONFORM WITH
THE COMPLAINANT'S DEMANDS. HE FURTHER NOTED THAT THE EMPLOYEE'S
GRIEVANCE HAD NOT BEEN PREJUDICED, NOR HAD THE COMPLAINANT'S RIGHTS BEEN
DISPARAGED BY THE RESPONDENT'S ACTIONS.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, NOTING HIS CREDIBILITY
FINDINGS AND THE ABSENCE OF ANY EXCEPTIONS TO THE REPORT AND
RECOMMENDATIONS. ACCORDINGLY, IN AGREEMENT WITH THE RECOMMENDATION OF
THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY ORDERED THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF THE AIR FORCE,
VANDENBERG AIR FORCE BASE,
CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001
ON MAY 28, 1974, ADMINISTRATIVE LAW JUDGE FRANCIS E. DOWD ISSUED HIS
REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES
ALLEGED 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,
/1/ CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINANT IN CASE NO. 72-3878, BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JULY 9, 1974
IN THE MATTER OF
DEPARTMENT OF THE AIR FORCE
VANDENBERG AIR FORCE BASE,
CALIFORNIA,
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001,
FRANK SPRAGUE, ESQ., 4392 ASG,
JUDGE ADVOCATE OFFICE
VANDENBERG AFB, CALIFORNIA 93437
CHARLES L. WIEST, JR.
CAPTAIN, USAF
HEADQUARTERS 15TH AIR FORCE
JUDGE ADVOCATE OFFICE
MARCH AFB, CALIFORNIA 92508
HOMER HOISINGTON
REGIONAL BUSINESS AGENT
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
POST OFFICE BOX 870
RIALTO, CALIFORNIA 92376
BEFORE: FRANCIS E. DOWD
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
REFERRED TO AS THE ORDER) ARISES PURSUANT TO A NOTICE OF HEARING ON
COMPLAINT AND ORDER RESCHEDULING HEARING ISSUED BY THE REGIONAL
ADMINISTRATOR OF THE U.S. DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, SAN FRANCISCO REGION. THE PROCEEDING WAS INITIATED BY
THE FILING OF A COMPLAINT BY LOCAL 1001 OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES (HEREAFTER REFERRED TO AS THE UNION OR COMPLAINANT)
AGAINST THE DEPARTMENT OF THE AIR FORCE, VANDENBERG AIR FORCE BASE,
CALIFORNIA (HEREAFTER REFERRED TO AS THE ACTIVITY OR RESPONDENT) ON
OCTOBER 24, 1972.
AN AMENDED COMPLAINT FILED ON AUGUST 30, 1973 ASSERTS THAT AT A
GRIEVANCE ADJUSTMENT MEETING HELD "ON OR ABOUT APRIL 25, 1972," THE
ACTIVITY REPRESENTATIVE THERE PRESENT RESTRICTED THE PARTICIPATION OF
THE UNION REPRESENTATIVE AND REFUSED TO CONSULT, CONFER, OR NEGOTIATE.
THIS, THE UNION COMPLAINED, VIOLATED SECTION 19(A), SUBSECTIONS (1) AND
(6) OF THE EXECUTIVE ORDER.
A HEARING ON THE AMENDED COMPLAINT WAS HELD AT SANTA MARIA,
CALIFORNIA ON OCTOBER 31 AND NOVEMBER 1, 1973. BOTH PARTIES WERE
PRESENT AND REPRESENTED BY COUNSEL AND WERE AFFORDED FULL OPPORTUNITY TO
CALL AND EXAMINE WITNESSES AND TO ADDUCE RELEVANT EVIDENCE. THE
POST-HEARING BRIEF SUBMITTED BY THE RESPONDENT HAS BEEN DULY 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 RECOMMENDATIONS.
1. COMPLAINANT HEREIN IS THE CERTIFIED EXCLUSIVE REPRESENTATIVE FOR
ALL NON-SUPERVISORY, NON-TEMPORARY, NON-PROFESSIONAL CIVILIAN EMPLOYEES
AT VANDENBERG AIR FORCE BASE, CALIFORNIA. MS. MARIE C. BROGAN, WHO
PLAYS A CENTRAL ROLE IN THE HAPPENINGS WHICH LED TO THE INSTANT
PROCEEDING, WAS, AT THE TIME OF THE OCCURRENCE, PRESIDENT OF LOCAL 1001.
2. ON APRIL 14, 1972, /1/ BUDDY L. BRANNON, A WAGE BOARD EMPLOYEE
ASSIGNED AS A PLUMBER IN THE CIVIL ENGINEERING SQUADRON, FILED A
GRIEVANCE WITH THE CIVILIAN PERSONNEL OFFICE (CPO) AT THE ACTIVITY. THE
GRIEVANCE COMPLAINED OF BRANNON'S ASSIGNMENT TO WORK DUTIES WHICH HE,
UPON THE ADVISE OF HIS PERSONAL PHYSICIAN, CONSIDERED POTENTIALLY
INJURIOUS TO A CHRONIC ASTHMATIC CONDITION FROM WHICH HE SUFFERED. THE
GRIEVANCE ALSO COMPLAINED OF THE LENGTH OF TIME WHICH HAD PAST, WITHOUT
ACTION, SINCE HE HAD REQUESTED THE AID OF THE CPO IN FILING AN
APPLICATION FOR DISABILITY RETIREMENT. THE GRIEVANCE DESIGNATED MS.
BROGAN AS BRANNON'S REPRESENTATIVE UNDER THE PROCEDURE AVAILABLE FOR
GRIEVANCE ADJUSTMENT.
3. MRS. JOYCE ANN CUMMINGS, AN EMPLOYEE RELATIONS SPECIALIST IN THE
CPO, RECEIVED BRANNON'S GRIEVANCE ON APRIL 18. ON THE 19TH OF APRIL
CUMMINGS TELEPHONED BRANNON'S SUPERVISOR, CARL W. LOVEALL, REGARDING A
MEETING WITH BRANNON TO DISCUSS HIS GRIEVANCE. SHE PROPOSED AN APRIL 24
MEETING DATE AND INSTRUCTED LOVEALL TO INQUIRE OF BRANNON WHETHER THIS
WAS ACCEPTABLE. LATER THAT SAME DAY CUMMINGS AGAIN CALLED LOVEALL TO
REMIND HIM TO BE SURE TO INFORM BRANNON OF HIS RIGHT TO HAVE A
REPRESENTATIVE PRESENT. LOVEALL SPOKE WITH BRANNON ON THE 19TH OF APRIL
AND RECEIVED HIS APPROVAL OF THE APRIL 24 MEETING DATE. EITHER LATE IN
THE WORK DAY OF THE 19TH OR EARLY IN THE MORNING OF THE 20TH LOVEALL
INFORMED BRANNON OF HIS RIGHT TO HAVE THE REPRESENTATIVE OF HIS CHOICE
PRESENT WITH HIM AT THE SCHEDULED MEETING.
4. ALTHOUGH IT IS THE PRACTICE OF THE ACTIVITY TO SEND TO A
GRIEVANT'S DESIGNATED REPRESENTATIVE WRITTEN CONFIRMATION OF A MEETING
CALLED TO DISCUSS A GRIEVANCE, IN THE INSTANT CASE SUCH NOTICE
INADVERTENTLY WAS NOT SENT TO BROGAN WHO TESTIFIED THAT SHE WAS FIRST
INFORMED OF THE MEETING ON THE DAY BEFORE IT WAS TO BE HELD, WHEN MR.
BRANNON CAME TO HER OFFICE TO REQUEST HER AID AND ASK HER TO ACCOMPANY
HIM. BROGAN WAS OBVIOUSLY MISTAKEN IN THIS RECOLLECTION AS THE DAY
PRECEDING THE MONDAY MEETING OF APRIL 24 WAS NOT A WORK DAY AND
THEREFORE BRANNON COULD NOT HAVE APPROACHED BROGAN AS SHE RECALLED.
RATHER, BROGAN MUST HAVE BEEN INFORMED OF THE MEETING SOMETIME AFTER
BRANNON AGREED TO THE SUGGESTED DATE BUT BEFORE THE CLOSE OF BUSINESS ON
FRIDAY, APRIL 21. /2/
5. ON APRIL 24, CUMMINGS, BRANNON AND LOVEALL WERE PRESENT AT THE
CPO AT 9:00 A.M., THE APPOINTED TIME AT WHICH THE MEETING WAS TO BEGIN.
BROGAN ARRIVED AT THE OFFICE 15 OR 20 MINUTES LATER. BROGAN TESTIFIED
THAT FROM HER JOINING THE MEETING UNTIL ITS TERMINATION SHE WAS RUDELY
TREATED BY CUMMINGS, REPEATEDLY EXCLUDED FROM PARTICIPATING IN THE
DISCUSSION OF BRANNON'S INTERESTS. ON THE OTHER HAND CUMMINGS'
TESTIMONY, CORROBORATED BY LOVEALL, WAS TO THE EFFECT THAT BROGAN WAS
TREATED IN A COURTEOUS, BUSINESS-LIKE MANNER AND ACCORDED EVERY PROPER
OPPORTUNITY TO PRESENT HER VIEWS, COUNSEL THE GRIEVANT AND REPRESENT HIS
INTERESTS. IT WAS CUMMINGS' TESTIMONY, HOWEVER, AGAIN SUPPORTED BY
LOVEALL, THAT BROGAN REPEATEDLY DISRUPTED THE PROCEEDINGS, JUMPING UP
AND SHOUTING HER DENUNCIATIONS OF CUMMINGS' CONDUCT OF THE MEETING. /3/
IT IS IMPOSSIBLE TO RECONCILE THE DIFFERING REPORTS OF THE APRIL 24
MEETING RELATED BY THE PARTICIPANTS. THIS BEING THE CASE MY ROLE AS
FACT-FINDER REQUIRES ME, ON THE BASIS OF THE REASONABLENESS OF THE
TESTIMONY, ITS INHERENT BELIEVABILITY AND MY ASSESSMENT OF THE
CREDIBILITY OF THE WITNESSES, TO CREDIT ONE VERSION OVER THE OTHER. I
AM PERSUADED, BY THE WEIGHT OF THE EVIDENCE ADDUCED AND MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, THAT CUMMINGS' RECOUNTING OF THE
EVENTS OF THE MEETING, CORROBORATED BY LOVEALL'S TESTIMONY IS THE MORE
CREDIBLE. I AM UNABLE TO CREDIT THE TESTIMONY OF BROGAN. WHEN
TESTIFYING TO PARTICULAR EVENTS, BROGAN WAS VERY VAGUE AND HER
RECOLLECTIONS WERE FUZZY AND CONFUSING. WITH VERY LITTLE PRODDING BY
RESPONDENT'S COUNSEL, SHE QUICKLY BECAME AGITATED AND DEMONSTRATED THAT
SHE POSSESSED A TEMPER NOT EASILY CONTROLLABLE. SHE WAS EXTREMELY
ARGUMENTATIVE THROUGHOUT HER TESTIMONY AND STRUCK ME AS BEING A VERY
DIFFICULT PERSON TO HAVE TO DEAL WITH IN PRECISELY THE KIND OF SITUATION
WHICH IS THE SUBJECT OF THIS PROCEEDING. AS NOTED IN RESPONDENT'S
EXCELLENT BRIEF, BROGAN OFTEN REFUSED TO ANSWER WITH IRRELEVANT, LENGTHY
EDITORIAL COMMENTS. IN CONTRAST, WITNESS CUMMINGS DISPLAYED AN EVEN,
BUSINESSLIKE APPROACH AND RETAINED HER COMPOSURE DURING
CROSS-EXAMINATION.
I THEREFORE FIND THAT BROGAN WAS ALLOWED TO PARTICIPATE IN THE
MEETING AS BRANNON'S REPRESENTATIVE AND THAT NO IMPEDIMENT TO HER
EFFECTIVE REPRESENTATION WAS OFFERED BY CUMMINGS.
6. IN ADDITION TO ITS GENERAL COMPLAINT REGARDING CUMMINGS' CONDUCT
OF THE APRIL 24 MEETING, THE UNION CONTENDS THAT BRANNON AND BROGAN, AS
HIS REPRESENTATIVE, WERE WRONGFULLY DENIED ACCESS TO THE RECORDS OF THE
MEDICAL EXAMINATION BRANNON HAD UNDERGONE AT THE VANDENBERG AFB HOSPITAL
UPON INSTRUCTIONS FROM THE CPO. /4/
AS DIAGNOSED BY HIS PERSONAL PHYSICIAN, BRANNON SUFFERED FROM
ASTHMATIC BRONCHITIS AND A CHRONIC ANXIETY REACTION WHICH, IN HIS
DOCTOR'S OPINION, LIMITED HIS PERFORMANCE OF ASSIGNED JOB DUTIES. /5/
THE ACTIVITY'S DOCTORS ARRIVED AT A SIMILAR DIAGNOSIS BUT FELT THAT ONLY
MINIMAL RESTRICTIONS IN BRANNON'S CAPACITY TO PERFORM JOB DUTIES WERE
INDICATED. /6/
BROGAN TESTIFIED THAT PORTIONS OF THE BASE HOSPITAL EVALUATION WERE
READ TO HER BY A HOSPITAL OFFICIAL PRIOR TO THE GRIEVANCE MEETING, SHE
WAS NOT THEN GIVEN A COPY OF THE REPORT, EVEN THOUGH SHE PRESENTED A
RELEASE SIGNED BY BRANNON. SHE AGAIN REQUESTED A COPY OF THE REPORT AT
THE APRIL 24 MEETING BUT WAS TOLD BY CUMMINGS THAT BINDING REGULATIONS
PROHIBITED ITS DISCLOSURE. /7/ BROGAN MAINTAINED AT THE MEETING THAT
THE REGULATIONS WERE INAPPLICABLE.
THE COMPLAINANT RENEWED THIS ARGUMENT AT THE HEARING AND IN ADDITION
CONTENDED THAT ITS MISAPPLICATION WORKED A VIOLATION OF THE SECTION
19(A)(6) DUTY TO CONSULT, CONFER, OR NEGOTIATE.
COLONEL ANDREW NIELSEN, A PHYSICIAN STATIONED AT THE VANDENBERG AFB
HOSPITAL, TESTIFIED FOR THE RESPONDENT AS TO THE REGULAR PRACTICE OF THE
HOSPITAL IN RELEASING MEDICAL RECORDS. COLONEL NIELSEN FURTHER
TESTIFIED THAT ALTHOUGH HE HAD NO DIRECT KNOWLEDGE OF BRANNON'S MEDICAL
CONDITION, ACCEPTING AS FACTUAL THE HOSPITAL REPORT OF THE MARCH 30
EXAMINATION, HIS READING OF THE APPLICABLE REGULATIONS WOULD FORBID
DISCLOSURE OF THE REPORT TO ANYONE OTHER THAN BRANNON'S PERSONAL
PHYSICIAN. /8/
7. FINALLY, COMPLAINANT CONTENDS THAT A REQUEST MADE BY BROGAN TO
CUMMINGS AT THE APRIL 24 MEETING WAS WRONGLY REFUSED IN VIOLATION OF THE
ORDER. SPECIFICALLY BROGAN REQUESTED THAT CUMMINGS REDUCE TO WRITING
EFFORTS THAT HAD BEEN MADE BY THE PLACEMENT OFFICE TO FIND ALTERNATE,
ACCEPTABLE EMPLOYMENT TO BRANNON. /9/ CUMMINGS RELATED THAT ATTEMPTS
HAD BEEN MADE TO FIND ALTERNATE POSITIONS BUT THAT NONE HAD BEEN FOUND.
/10/ SHE REFUSED TO REDUCE TO WRITING THOSE EFFORTS WHICH HAD BEEN MADE
IN THIS REGARD, HOWEVER, BECAUSE SHE KNEW OF NO REGULATION WHICH SO
REQUIRED HER AND, AS SHE REPEATED IN HER TESTIMONY, SHE CONSIDERED HER
WORD AS HER BOND.
1. THE UNION CONTENDS THAT THE ACTIVITY'S ACTIONS IN THE MEETING OF
APRIL 24 AND THE EVENTS SURROUNDING THAT MEETING CONSTITUTE A VIOLATION
OF SECTION 19 SUBSECTIONS (A)(1) AND (6) OF THE EXECUTIVE ORDER. /11/
AFTER CAREFUL REVIEW OF THE ENTIRE RECORD IN THIS CASE AND THE ARGUMENTS
OF COUNSEL I AM NOT PERSUADED THAT THE ACTIVITY'S CONDUCT WAS IMPROPER.
2. IT WAS ADMITTED BY THE RESPONDENT THAT ITS USUAL PRACTICE WAS TO
SEND WRITTEN CONFIRMATION OF A SCHEDULED GRIEVANCE ADJUSTMENT MEETING TO
THE REPRESENTATIVE DESIGNATED BY THE GRIEVANT. IT WAS ADMITTED FURTHER
THAT WITH REGARD TO THE APRIL 24 MEETING SCHEDULED TO DISCUSS BRANNON'S
GRIEVANCE NO SUCH NOTIFICATION WAS FURNISHED BROGAN. COMPLAINANT HAS
NOT INDICATED HOWEVER, NOR HAVE I BY INDEPENDENT INQUIRY DISCOVERED, ANY
PROVISION OF THE ORDER OR ANY APPLICABLE REGULATION WHICH MANDATES
WRITTEN NOTICE TO A DESIGNATED EMPLOYEE REPRESENTATIVE. IT IS
UNCONTRADICTED THAT ADEQUATE NOTICE OF THE DATE ARRANGED FOR A MEETING
ON HIS GRIEVANCE WAS PROVIDED TO BRANNON AND THAT HE WAS FULLY INFORMED
OF HIS RIGHT UNDER THE ORDER TO HAVE PRESENT WITH HIM A REPRESENTATIVE
OF HIS CHOICE. LIKEWISE, I HAVE FOUND THAT BROGAN WAS IN FACT INFORMED
OF THE MEETING SUFFICIENTLY IN ADVANCE TO ALLOW FOR HER PREPARATION, AND
THAT NO PREJUDICE RESULTED TO HER OR TO MR. BRANNON BECAUSE OF THE LACK
OF WRITTEN NOTICE. THIS CONTENTION OF THE COMPLAINANT IS THEREFORE
WITHOUT MERIT.
3. HAVING FOUND AS I HAVE ABOVE WITH REGARD TO THE DIFFERING
VERSIONS OF THE APRIL 24 MEETING, I FURTHER CONCLUDE COMPLAINANT HAS
FAILED TO SHOW BY CONVINCING EVIDENCE THAT CUMMINGS, ACTING FOR THE
ACTIVITY, INTERFERED WITH BROGAN'S REPRESENTATION OF BRANNON, REFUSED TO
ACCORD HER FULL RIGHTS OR PARTICIPATION OR ANY OTHER WAY VIOLATED THE
PROVISIONS OF THE ORDER.
4. COMPLAINANT'S CONTENTIONS REGARDING THE FAILURE OF THE ACTIVITY
TO RELEASE MEDICAL RECORDS OBTAINED FROM BRANNON'S MARCH 30 EXAMINATION
AT THE BASE HOSPITAL ARE LIKEWISE WITHOUT MERIT AND MUST BE DISMISSED.
THE REGULATIONS, PREVIOUSLY CITED, CONCERNING THE DISCLOSURE OF MEDICAL
INFORMATION WHICH GOVERNED THE CONDUCT OF CUMMINGS AND BASE HOSPITAL
PERSONNEL PROVIDE, IN ESSENCE, THAT MEDICAL INFORMATION CONCERNING AN
EMPLOYEE'S MENTAL OR OTHER CONDITION WHICH A PRUDENT PHYSICIAN WOULD
HESITATE TO DISCLOSE TO THE EMPLOYEE WILL BE RELEASED ONLY TO A LICENSED
PHYSICIAN DESIGNATED IN WRITING BY THE EMPLOYEE OR HIS DESIGNATED
REPRESENTATIVE.
COLONEL NIELSON'S OPINION, AS A PRUDENT PHYSICIAN, REGARDING THE
IMPROPRIETY OF RELEASING THE REPORT OF THE MARCH 30 EXAMINATION TO MRS.
BROGAN WAS UNCONTRADICTED. /12/ COMPLAINANT HAS FAILED TO SHOW BY
COMPETENT EVIDENCE HOW COLONEL NIELSON'S APPRAISAL OF MR. BRANNON'S
CONDITION WAS ERRONEOUS OR HOW HIS OPINION REGARDING RELEASE OF THE
MEDICAL REPORT WAS IMPROPER. ACCEPTING COLONEL NIELSON'S TESTIMONY, IT
CAN BE SEEN THAT CUMMINGS' REFUSAL TO RELEASE THE SAME INFORMATION WAS
LIKEWISE DIRECTED BY THE REGULATIONS AND THAT THE ACTIVITY'S SECTION
19(A)(6) OBLIGATIONS IN THE CONTEXT OF THE GRIEVANCE ADJUSTMENT MEETING
WERE NOT EVADED.
5. I TURN NOW TO COMPLAINANT'S CONTENTIONS REGARDING CUMMINGS'
REFUSAL TO PROVIDE A WRITTEN ACCOUNT OF THE EFFORTS WHICH HAD BEEN MADE
TO FIND BRANNON AN ALTERNATIVE JOB POSITION AT THE ACTIVITY.
COMPLAINANT DOES NOT DISPUTE CUMMINGS' TESTIMONY THAT SHE WAS FULLY
PREPARED TO PROVIDE THIS INFORMATION ORALLY TO BROGAN IF SHE WOULD HAVE
ALLOWED IT. THE GRAVAMEN OF THE CHARGE IS CUMMINGS' REFUSAL TO ACCEDE
TO BROGAN'S DEMAND FOR A WRITTEN TRANSCRIPTION. ASIDE FROM ITS SIMPLE
ASSERTION OR WRONGDOING ON THE PART OF THE ACTIVITY IN THIS REGARD,
COMPLAINANT FAILS TO DEMONSTRATE UNDER WHAT APPLICABLE REGULATIONS OR
PROVISIONS OF THE ORDER THE ACTIVITY WAS OBLIGATED TO SO CONFORM TO
BROGAN'S DEMANDS. NOR HAVE I BEEN INFORMED HOW BRANNON'S POSITION ON
HIS GRIEVANCE HAS BEEN PREJUDICED, OR THE UNION'S RIGHTS DISPARAGED BY
CUMMINGS' ACTIONS. ACCORDINGLY, I CONCLUDE THAT COMPLAINANT'S GRIEVANCE
IN THIS REGARD CAN FIND NO REDRESS UNDER THE PROVISIONS OF THE EXECUTIVE
ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS IT IS
RECOMMENDED THAT THE ASSISTANT SECRETARY DISMISS IN ITS ENTIRETY THE
COMPLAINT FILED HEREIN BY LOCAL 1001 OF THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES AGAINST THE DEPARTMENT OF THE AIR FORCE, VANDENBERG
AIR FORCE BASE, CALIFORNIA.
DATED: MAY 28, 1974
WASHINGTON, D.C.
/1/ UNLESS OTHERWISE INDICATED ALL DATES HEREINAFTER MENTIONED ARE IN
1972.
/2/ IN ANY EVENT MS. BROGAN TESTIFIED THAT SHE WAS THOROUGHLY
FAMILIAR WITH MR. BRANNON'S DISABILITY CLAIM AND CANNOT BE SEEN TO HAVE
BEEN PREJUDICED IN HER REPRESENTATION OF MR. BRANNON AT THE APRIL 24
MEETING BECAUSE OF INADEQUATE TIME TO PREPARE.
/3/ REGRETFULLY BRANNON WAS UNAVAILABLE TO GIVE TESTIMONY AT THE
HEARING BECAUSE OF A COMPELLING PERSONAL MATTER NEEDING HIS ATTENTION.
NO INFERENCE WHATEVER IS DRAWN FROM HIS FAILURE TO APPEAR.
/4/ AS MRS. CUMMINGS EXPLAINED THE PROCEDURES INVOLVED IN THE
PROCESSING OF AN APPLICATION FOR DISABILITY RETIREMENT, AN EMPLOYEE IS
INITIALLY REQUESTED TO SECURE FROM HIS OWN PHYSICIAN AN EVALUATION OF
THE EMPLOYEE'S MEDICAL CONDITION AND AN EXPLANATION OF HOW IT RELATES TO
HIS WORK. THIS REPORT IS THEN SENT TO THE BASE HOSPITAL FOR A FEDERAL
MEDICAL OPINION. IF THE PRIVATE PHYSICIAN'S REPORT IS SUFFICIENT FOR
THE BASE DOCTORS TO RENDER THEIR EVALUATION NO FURTHER EXAMINATION IS
REQUIRED. IF, AS IS MOST OFTEN THE CASE, THE BASE DOCTORS FIND THAT
THEY REQUIRE ADDITIONAL INFORMATION, THE EMPLOYEE IS REQUIRED TO REPORT
TO THE BASE HOSPITAL FOR FURTHER EXAMINATION. AFTER BRANNON'S PRIVATE
PHYSICIAN'S REPORT WAS FOUND TO BE INADEQUATE, BRANNON WAS REQUESTED TO
UNDERGO AN ADDITIONAL EXAMINATION AT THE BASE HOSPITAL ON MARCH 30. IT
IS THE REPORT OF THIS EXAMINATION WHICH BRANNON AND HIS REPRESENTATIVE
REQUESTED AND WHICH WAS DENIED TO THEM.
/5/ RESPONDENT'S EXHIBIT NO. 2.
/6/ RESPONDENT'S EXHIBIT NO. 3.
/7/ FEDERAL PERSONNEL MANUAL CHAPTER 294, SUBCHAPTER 4-1 AND CHAPTER
339, SUBCHAPTER 1-4, AND AIR FORCE REGULATION 40-716; RESPONDENT'S
EXHIBIT NOS. 1 AND 4 RESPECTIVELY.
/8/ THE PHYSICIAN WHO CONDUCTED THE MARCH 30 EXAMINATION WAS
UNAVAILABLE FOR THE PURPOSE OF GIVING TESTIMONY AT THE HEARING.
/9/ UNDER PROCEDURES IN EFFECT AT THE ACTIVITY AN EMPLOYEE MAY
QUALIFY FOR DISABILITY RETIREMENT FROM ONE POSITION AND STILL QUALIFY
FOR PLACEMENT IN ANOTHER POSITION. WHEN AN EMPLOYEE HAS APPLIED FOR
DISABILITY RETIREMENT THE ACTIVITY IS UNDER THE OBLIGATION TO ACTIVELY
SEARCH FOR AN ALTERNATIVE POSITION FOR HIM. IF ONE IS FOUND, THE
EMPLOYEE THEN HAS THE OPTION OF ACCEPTING EITHER THE OFFERED POSITION OR
DISABILITY RETIREMENT WITH ITS BENEFITS, IF IT HAS BEEN APPROVED.
/10/ THE ACTIVITY WAS AT THE TIME INVOLVED IN A REDUCTION-IN-FORCE
(RIF) OPERATION. THOSE EMPLOYEES WHO WOULD LOSE THEIR POSITIONS BECAUSE
OF THE RIF WOULD HAVE PRIORITY IN JOB PLACEMENT OVER EMPLOYEES IN
BRANNON'S POSITION.
/11/ SECTION 19(A) AGENCY MANAGEMENT SHALL NOT:
(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED BY THIS ORDER.
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS ORDER.
/12/ COLONEL NIELSON STATED THAT HE WOULDN'T RELEASE THE INFORMATION
BECAUSE OF THE STATEMENT THEREIN CONCERNING A "PYSCHO-PHYSIOLOGIC
RESPIRATORY ILLNESS."
4 A/SLMR 409; P. 456; CASE NO. 72-4134; JULY 9, 1974.
DEPARTMENT OF THE NAVY,
SAN DIEGO MARINE CORPS EXCHANGE 10-2,
SAN DIEGO, CALIFORNIA
A/SLMR NO. 409
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION
3318 (AFGE), SEEKING TO INCLUDE IN ITS EXISTING EXCLUSIVELY RECOGNIZED
UNIT AT THE SAN DIEGO MARINE CORPS EXCHANGE 10-2, SAN DIEGO, CALIFORNIA,
INCUMBENTS IN THE FOLLOWING JOB CLASSIFICATIONS; SECTION SUPERVISOR,
S-4; ASSISTANT SECTION SUPERVISOR, S-1 AND OFFICE SUPERVISOR, H-10 IN
THE MAIN STORE; STOCK CONTROL SUPERVISOR, S-2, SHIPPING SUPERVISOR, S-1
AND ASSISTANT STOCK CONTROL SUPERVISOR, H-10, IN THE WAREHOUSE; SERVICE
SUPERVISORS, H-15, IN THE SERVICE STATION; UTILITY SUPERVISOR, S-1;
ASSISTANT UTILITY SUPERVISOR, H-11; MAINTENANCE CHIEF, H-15 AND SENIOR
UTILITY MAN, H-8, IN THE MAINTENANCE PROPERTY DEPARTMENT; ACCOUNTING
SUPERVISOR, S-3, IN THE ACCOUNTING DEPARTMENT; SENIOR BUYER, S-5, IN
THE PURCHASING DEPARTMENT; SUPERVISOR, S-1, AND ASSISTANT SUPERVISOR,
H-1 IN THE PANTRY; SUPERVISOR IN THE CASH OFFICE, H-10; AND
SUPERVISOR, S-3 AND ASSISTANT SUPERVISOR, S-1, IN THE ENLISTED SERVICES
CLUB/FOOD SERVICE. CONTRARY TO THE VIEW OF THE AFGE, THE ACTIVITY
CONTENDED THAT THE DISPUTED CLASSIFICATIONS SHOULD BE EXCLUDED AS
SUPERVISORY.
THE ASSISTANT SECRETARY FOUND THAT, WITH EXCEPTION OF THE SERVICE
SUPERVISOR AND THE OFFICE "SUPERVISOR," EMPLOYEES IN THE DISPUTED
CATEGORIES WHO WERE CLASSIFIED AS SUPERVISORS OR ASSISTANT SUPERVISORS
WERE, IN FACT, SUPERVISORS WITHIN THE MEANING OF EXECUTIVE ORDER 11491
AND SHOULD NOT BE INCLUDED IN THE UNIT. IN THIS RESPECT, HE NOTED THAT
EMPLOYEES IN THESE CLASSIFICATIONS POSSESSED, AMONG OTHER THINGS,
RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES AND SCHEDULE AND ASSIGN
WORK AND LEAVE. FURTHER, THEY EFFECTIVELY RECOMMEND HIRING, ADJUST OR
EFFECTIVELY RECOMMEND THE ADJUSTMENT OF GRIEVANCES, AND EXERCISE
INDEPENDENT JUDGMENT IN PERFORMING THESE JOB FUNCTIONS. THE ASSISTANT
SECRETARY FOUND ALSO THAT THE MAINTENANCE CHIEF (MAINTENANCE/PROPERTY),
H-15 AND THE SENIOR BUYER (PURCHASING), S-5, WERE SUPERVISORS AND SHOULD
BE EXCLUDED FROM THE UNIT.
WITH RESPECT TO THE JOB CATEGORIES, OFFICE "SUPERVISOR" (MAIN STORE),
H-10, AND SENIOR UTILITY MAN (MAINTENANCE/PROPERTY), H-8, THE ASSISTANT
SECRETARY FOUND THAT THE RECORD REFLECTED THEY WERE NOT SUPERVISORS
WITHIN THE MEANING OF THE ORDER AND, THEREFORE, SHOULD BE INCLUDED IN
THE UNIT.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE UNIT BE
CLARIFIED CONSISTENT WITH HIS DECISION.
DEPARTMENT OF THE NAVY,
SAN DIEGO MARINE CORP EXCHANGE 10-2,
SAN DIEGO, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
LOCAL 3318,
SAN DIEGO, CALIFORNIA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOHN J. SHEA. 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 AND THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL UNION 3318, HEREINAFTER CALLED AFGE, FILED A PETITION FOR
CLARIFICATION OF UNIT IN THE SUBJECT CASE SEEKING CLARIFICATION OF AN
EXISTING EXCLUSIVELY RECOGNIZED BARGAINING UNIT. SPECIFICALLY, THE AFGE
SEEKS TO CLARIFY THE STATUS OF THE FOLLOWING EMPLOYEE JOB
CLASSIFICATIONS, WHOSE INCUMBENTS THE AFGE ASSERTS ARE NOT SUPERVISORY
EMPLOYEES AND, THEREFORE, SHOULD BE INCLUDED IN THE UNIT: SECTION
SUPERVISOR, S-4; ASSISTANT SECTION SUPERVISOR, S-1 AND OFFICE
SUPERVISOR, H-10, IN THE MAIN STORE; STOCK CONTROL SUPERVISOR, S-2;
SHIPPING SUPERVISOR, S-1 AND ASSISTANT STOCK CONTROL SUPERVISOR, H-10,
IN THE WAREHOUSE; SERVICE SUPERVISOR, H-15, IN THE SERVICE STATION;
UTILITY SUPERVISOR, S-1; ASSISTANT UTILITY SUPERVISOR, H-11;
MAINTENANCE CHIEF, H-15 AND SENIOR UTILITY MAN, H-8, IN THE MAINTENANCE
PROPERTY DEPARTMENT; ACCOUNTING SUPERVISOR, S-3, IN THE ACCOUNTING
DEPARTMENT; SENIOR BUYER, S-5, IN THE PURCHASING DEPARTMENT;
SUPERVISOR, S-1 AND ASSISTANT SUPERVISOR, H-7 IN THE PANTRY: SUPERVISOR
IN THE CASH OFFICE, H-10; AND SUPERVISOR, S-3 AND ASSISTANT SUPERVISOR,
S-1, IN THE ENLISTED SERVICES CLUB/FOOD SERVICE. /2/
THE RECORD REFLECTS THAT ON JUNE 24, 1965, LOCAL 1085, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, WAS GRANTED EXCLUSIVE
RECOGNITION AS TO THE EXCLUSIVE BARGAINING REPRESENTATIVE IN A UNIT OF
ALL ELIGIBLE EMPLOYEES AT THE SAN DIEGO MARINE CORPS EXCHANGE, SAN
DIEGO, CALIFORNIA. ON AUGUST 2, 1972, THE ACTIVITY AND AFGE, LOCAL
3318, THE SUCCESSOR TO AFGE, LOCAL 1085, ENTERED INTO A NEGOTIATED
AGREEMENT COVERING EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
THE ACTIVITY IS A NON-APPROPRIATED FUND ACTIVITY LOCATED IN SAN
DIEGO, CALIFORNIA, AND CONSISTS OF A NUMBER OF SALES ACTIVITIES
RENDERING A VARIETY OF SERVICES. IT EMPLOYS OVER 500 EMPLOYEES WORKING
AS A TEAM TO ACCOMPLISH ITS MISSION WHICH IS TO PROVIDE ALL ACTIVE AND
RETIRED MILITARY PERSONNEL AND THEIR DEPENDENTS WITH ARTICLES AND
SERVICES, AT REASONABLE PRICES, NECESSARY FOR THEIR HEALTH, COMFORT, AND
CONVENIENCE. AT THE TIME OF THE HEARING IN THIS MATTER, THERE WERE
APPROXIMATELY 415 CIVILIAN EMPLOYEES AT THE ACTIVITY WHO WERE IN THE
EXCLUSIVELY RECOGNIZED UNIT.
SECTION SUPERVISORS (MAIN STORE), S-4; STOCK CONTROL SUPERVISOR
(WAREHOUSE), S-2; SHIPPING SUPERVISOR (WAREHOUSE), S-1; SERVICE
SUPERVISOR (SERVICE STATION), H-15; /3/ UTILITY SUPERVISOR
(MAINTENANCE/PROPERTY), S-1; ACCOUNTING SUPERVISOR (ACCOUNTING), S-3;
SUPERVISOR (PANTRY), S-1, SUPERVISOR (CASH OFFICE), H-10; SUPERVISOR
(ENLISTED SERVICE CLUB/FOOD SERVICES), S-3.
THE EVIDENCE ESTABLISHED THAT THE INCUMBENTS IN THE ABOVE DESCRIBED
JOB CLASSIFICATIONS REPORT TO THEIR RESPECTIVE ACTIVITY MANAGERS. THE
INCUMBENTS ARE RESPONSIBLE FOR APPROXIMATELY 4 TO 80 PEOPLE IN THEIR
SECTIONS, ALL OF WHOM ARE JUNIOR IN GRADE. THEY HAD THE AUTHORITY TO
SETTLE MINOR GRIEVANCES AND TO MAKE RECOMMENDATIONS FOR THE DISPOSITION
OF MAJOR GRIEVANCES, WHICH RECOMMENDATIONS THE RECORD SHOWS NORMALLY ARE
FOLLOWED. FURTHER, THEY HAVE THE AUTHORITY TO AUTHORIZE ANNUAL AND SICK
LEAVE AND TO RECOMMEND THE SCHEDULING OF ANNUAL LEAVE, WITH A MAJORITY
OF THEIR RECOMMENDATIONS IN THIS REGARD BEING FOLLOWED. THE RECORD
REVEALS ALSO THAT EMPLOYEES IN THESE CLASSIFICATIONS HAVE INTERVIEWED
JOB APPLICANTS, WHO HAVE BEEN HIRED UPON THEIR RECOMMENDATIONS, AND THAT
THEY HAVE THE AUTHORITY TO RECOMMEND PROMOTIONS, MERITORIOUS WAGE
INCREASES, AND LETTERS OF COMMENDATION. THE INCUMBENTS IN THESE
CLASSIFICATIONS ALSO ASSIGN EMPLOYEES TO JOBS WITHIN THEIR SECTIONS AND
TRANSFER EMPLOYEES BETWEEN VARIOUS JOBS AND LOCATIONS WITHIN THEIR
SECTIONS, WHICH OCCURS REGULARLY.
AS THE RECORD REFLECTS THAT EMPLOYEES IN THESE CLASSIFICATIONS
POSSESS RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES, SCHEDULE AND
ASSIGN WORK AND LEAVE, EFFECTIVELY RECOMMEND HIRING, AND ADJUST OR
EFFECTIVELY RECOMMEND THE ADJUSTMENT OF GRIEVANCES, AND AS THEY ARE
REQUIRED TO EXERCISE INDEPENDENT JUDGMENT IN PERFORMING THESE FUNCTIONS,
I FIND THAT EMPLOYEES IN THE ABOVE CLASSIFICATIONS (WITH THE EXCEPTION
OF THE SERVICE SUPERVISOR (SERVICE STATION), H-15) ARE SUPERVISORS
WITHIN THE MEANING OF THE ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM
THE UNIT.
ASSISTANT SECTION SUPERVISORS (MAIN STORE), S-1; ASSISTANT STOCK
CONTROL SUPERVISOR (WAREHOUSE), H-10; ASSISTANT UTILITY SUPERVISOR
(MAINTENANCE/PROPERTY), H-11; ASSISTANT SUPERVISOR (PANTRY), H-7;
ASSISTANT SUPERVISOR (ENLISTED SERVICE CLUB/FOOD SERVICES), S-1.
THE INCUMBENTS IN THESE CLASSIFICATIONS REPORT TO THEIR RESPECTIVE
SECTION SUPERVISORS. THEY ARE RESPONSIBLE FOR FROM APPROXIMATELY 5 TO
60 EMPLOYEES, ALL OF WHOM ARE JUNIOR IN GRADE. THEY INTERVIEW
APPLICANTS FOR EMPLOYMENT, MAKE A SELECTION, AND FORWARD A
RECOMMENDATION THAT THE INDIVIDUAL OF THEIR CHOICE BE HIRED, WHICH
RECOMMENDATION GENERALLY IS FOLLOWED. ALTHOUGH LIMITED BY THE PARTIES'
NEGOTIATED AGREEMENT TO EFFECTING VERBAL REPRIMANDS AND WARNINGS,
ASSISTANT SUPERVISORS HAVE THE AUTHORITY TO DISCIPLINE EMPLOYEES
VERBALLY AND VIRTUALLY ALL HAVE, IN FACT, DONE SO. THESE INCUMBENTS
ALSO HAVE THE AUTHORITY TO RECOMMEND MORE SEVERE DISCIPLINE SUCH AS
WRITTEN REPRIMANDS OR WARNINGS, SUSPENSION AND DISCHARGE AND HAVE, IN
FACT, DONE SO WITH SUCH RECOMMENDATIONS BEING FOLLOWED. FURTHER, THE
RECORD REVEALS THAT ASSISTANT SUPERVISORS HAVE THE AUTHORITY TO
RECOMMEND, AND HAVE MADE RECOMMENDATIONS FOR, PROMOTIONS, REWARDS IN THE
FORM OF MERITORIOUS WAGE INCREASES, AND LETTERS OF COMMENDATION AND THAT
SUCH RECOMMENDATIONS HAVE BEEN FOLLOWED. THE INCUMBENTS IN THESE
POSITIONS ALSO MAY ASSIGN AND TRANSFER EXCHANGE EMPLOYEES TO THEIR
VARIOUS DUTIES WITHIN THEIR RESPECTIVE SECTIONS. THE ASSISTANT
SUPERVISORS FURTHER HAVE THE AUTHORITY TO RESOLVE EMPLOYEE GRIEVANCES,
AS WELL AS THE AUTHORITY TO GRANT OR DENY LEAVE TO EMPLOYEES UNDER THEIR
SUPERVISION. MOREOVER, VIRTUALLY ALL OF THE INCUMBENTS FILL IN FOR
THEIR OWN IMMEDIATE SUPERVISORS ON A REGULAR DAILY, OR WEEKLY BASIS, AND
DUE TO THE HOURS OF THE EXCHANGE OPERATIONS, MOST OF THESE INCUMBENTS
ARE THE INDIVIDUALS SOLELY IN CHARGE OF THEIR SECTIONS OR DEPARTMENTS
FOR SUBSTANTIAL PERIODS OF TIME AVERAGING 8 TO 20 HOURS PER WEEK.
DURING SUCH PERIODS, THEY EXERCISE ALL THE AUTHORITY OF THEIR
SUPERVISORS.
IN VIEW OF THE FACT THAT EMPLOYEES IN THESE ASSISTANT SUPERVISOR
CLASSIFICATIONS POSSESS RESPONSIBLE AUTHORITY TO DIRECT OTHER EMPLOYEES,
HAVE THE AUTHORITY TO MAKE EFFECTIVE RECOMMENDATIONS AS TO HIRING, AND
ARE AUTHORIZED TO ADJUST GRIEVANCES, AND AS THEY EXERCISE INDEPENDENT
JUDGMENT IN THE PERFORMANCE OF THESE FUNCTIONS, I FIND THAT THE
INCUMBENTS ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER AND,
THEREFORE, EMPLOYEES IN THESE CLASSIFICATIONS SHOULD BE EXCLUDED FROM
THE UNIT.
OFFICE "SUPERVISOR" (MAIN STORE), H-10
THE POSITION OF OFFICE "SUPERVISOR" IS LOCATED IN THE MAIN STORE IN
THE MANAGER'S OFFICE, AND AN EMPLOYEE IN THIS CLASSIFICATION REPORTS TO
THE MANAGER. THE INCUMBENT IS RESPONSIBLE FOR TWO EMPLOYEES IN THIS
SECTION AND IS RESPONSIBLE PRIMARILY FOR THE ORDERLY ADMINISTRATION OF
THE STORE OFFICE, INCLUDING DISSEMINATING INSTRUCTIONS AND INFORMATION
TO AND FROM DEPARTMENT SUPERVISORS AS DIRECTED.
THE INCUMBENT'S JOB DESCRIPTION INDICATES THAT SHE IS REQUIRED TO
TAKE DICTATION, MAINTAIN NECESSARY OFFICE FILES, COMPILE DATA, MAKE
REPORTS AS REQUIRED, AND OPERATE A TYPEWRITER, ADDING AND COPYING
MACHINES, AND OTHER CONVENTIONAL OFFICE EQUIPMENT. THE INCUMBENT'S JOB
DESCRIPTION ALSO INDICATES THAT SHE SPENDS MOST OF HER TIME OPERATING
SUCH EQUIPMENT AS WELL AS PERFORMING ROUTINE CLERICAL WORK. THE JOB
DESCRIPTION FURTHER REFLECTS THAT THE OFFICE "SUPERVISOR" GENERALLY
WORKS ALONGSIDE THE OTHER EMPLOYEES OF THE STORE OFFICE WHO ARE ENGAGED
IN ROUTINE WORK WHICH THEY ARE ABLE TO PERFORM WITHOUT ANY GUIDANCE OR
DIRECTION FROM THE INCUMBENT. THE ACTIVITY ALLEGES THAT THE INCUMBENT
ASSIGNS WORK IN HER SECTION, INDEPENDENTLY DIRECTS ITS COMPLETION,
SUPERVISES THE INSPECTION OF THE WORK, RENDERS OPINIONS ON THE
PERFORMANCE OF OTHER EMPLOYEES, ESTABLISHES WORK PRIORITIES, HAS THE
AUTHORITY TO DISCIPLINE EMPLOYEES VERBALLY OR IN WRITING, AND MAY
RECOMMEND WRITTEN REPRIMANDS, PROMOTIONS, MERITORIOUS WAGE INCREASES,
AND LETTERS OF COMMENDATION. THE RECORD DOES NOT INDICATE THAT THE
PERFORMANCE REVIEWS ARE SEEN OR INITIALLED BY THE EVALUATED EMPLOYEE OR
THAT SUCH PERSONNEL RECOMMENDATIONS AS ARE PERFORMED ARE OTHER THAN
ROUTINE OR REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT. THE RECORD
REVEALS ALSO THAT THE INCUMBENT DOES NOT ATTEND ANY SUPERVISORY
MEETINGS.
UNDER THE CIRCUMSTANCES, I FIND THAT THE OFFICE "SUPERVISOR" DOES NOT
POSSESS THE INDICIA OF SUPERVISORY AUTHORITY AS SET FORTH IN SECTION
2(C) OF THE ORDER. THUS, THE EMPLOYEE IN THIS CLASSIFICATION SPENDS THE
MAJORITY OF HER TIME WORKING WITH OTHER STORE OFFICE EMPLOYEES AND THE
RECORD REVEALS THAT HER RELATIONSHIP WITH OTHER EMPLOYEES IN THE OFFICE
IS IN THE NATURE OF A MORE EXPERIENCED EMPLOYEE GUIDING AND TRAINING
LESS EXPERIENCED EMPLOYEES. MOREOVER, THE EVIDENCE DOES NOT ESTABLISH
THAT SUCH DIRECTION AS THE INCUMBENT PROVIDES OTHER EMPLOYEES, OR SUCH
RECOMMENDATIONS AS ARE MADE WITH RESPECT TO THESE EMPLOYEES, ARE OTHER
THAN ROUTINE IN NATURE, OR ARE NOT WITHIN ESTABLISHED GUIDELINES, OR
REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT. ACCORDINGLY, I FIND THAT
THE EMPLOYEE IN THIS CLASSIFICATION SHOULD BE INCLUDED WITHIN THE UNIT.
MAINTENANCE CHIEF (MAINTENANCE/PROPERTY), H-15
THE POSITION OF MAINTENANCE CHIEF IS LOCATED IN THE
MAINTENANCE/PROPERTY DEPARTMENT OF THE ACTIVITY, AND THE EMPLOYEE IN
THIS CLASSIFICATION REPORTS TO THE EXCHANGE OFFICER. HAVING
RESPONSIBLITY FOR THE MAINTENANCE OF ALL OF THE EXCHANGE PROPERTIES
THROUGHOUT THE BASE, THE INCUMBENT HAS THIRTEEN EMPLOYEES IN THIS
SECTION, ALL OF WHOM ARE JUNIOR IN GRADE. THE RECORD REVEALS THAT THE
INCUMBENT INTERVIEWS APPLICANTS FOR EMPLOYMENT, MAKES A SELECTION, AND
FORWARDS A RECOMMENDATION THAT IS GENERALLY FOLLOWED. ALTHOUGH LIMITED
TO VERBAL REPRIMANDS AND WARNINGS, THE MAINTENANCE CHIEF HAS THE
AUTHORITY TO, AND HAS, IN FACT, RECOMMENDED MORE SEVERE DISCIPLINE, SUCH
AS WRITTEN REPRIMANDS OR WARNINGS, SUSPENSION AND DISCHARGE, WHICH
RECOMMENDATIONS HAVE BEEN FOLLOWED. THE INCUMBENT ALSO MAY RECOMMEND
PROMOTIONS AND AWARDS, SUCH AS MERITORIOUS WAGE INCREASES AND LETTERS OF
COMMENDATION, AND ON OCCASIONS WHEN HE HAS MADE SUCH RECOMMENDATIONS,
THEY HAVE BEEN ACCEPTED. HE ALSO MAY ASSIGN AND TRANSFER EMPLOYEES
UNDER HIS DIRECTION TO VARIOUS DUTIES THROUGHOUT THE EXCHANGE AND MAY
HANDLE AND RESOLVE EMPLOYEE GRIEVANCES. FURTHER, HE EVALUATES THE
PERFORMANCE OF MAINTENANCE EMPLOYEES ON A STANDARD EVALUATION FORM WHICH
REQUIRES WRITTEN COMMENTS BY THE INCUMBENT AND A WRITTEN ACKNOWLEDGMENT
BY THE EMPLOYEE AND HE HAS THE AUTHORITY TO GRANT OR DENY LEAVE.
BASED ON THE FOREGOING, I CONCLUDE THAT THE MAINTENANCE CHIEF
POSSESSES INDEPENDENT AND RESPONSIBLE AUTHORITY TO DIRECT OTHER
EMPLOYEES, SCHEDULE AND ASSIGN WORK AND LEAVE, AND EFFECTIVELY RECOMMEND
HIRING AND THE ADJUSTMENT OF GRIEVANCES. ACCORDINGLY, I FIND THAT THE
MAINTENANCE CHIEF IS A SUPERVISOR WITHIN THE MEANING OF THE RODER AND,
THEREFORE, THIS CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT.
SENIOR UTILITY MAN (MAINTENANCE/PROPERTY), H-8
THE POSITION OF SENIOR UTILITY MAN IS LOCATED IN THE
MAINTENANCE/PROPERTY DEPARTMENT OF THE EXCHANGE, AND EMPLOYEES IN THIS
CLASSIFICATION REPORT TO THE UTILITY SUPERVISOR. THE INCUMBENTS WORK
WITH A CREW OF APPROXIMATELY SIX UTILITY MEN, ENGAGED IN JANITORIAL AND
GROUND MAINTENANCE DUTIES WITHIN THE EXCHANGE, ALL OF WHOM ARE JUNIOR IN
GRADE. ESSENTIALLY THE INCUMBENTS ARE RESPONSIBLE FOR SEEING THAT THE
DIRECTIONS OF THE UTILITY SUPERVISOR ARE CARRIED OUT.
ALTHOUGH THE ACTIVITY CONTENDS THAT THE INCUMBENTS IN THE ABOVE
CLASSIFICATION ARE SUPERVISORS, IT ACKNOWLEDGES THAT SUCH EMPLOYEES
OVERSEE RATHER THAN SUPERVISE THE WORK OF THE UTILITY MEN IN THEIR
SECTIONS. NOTWITHSTANDING THE ASSERTIONS OF THE ACTIVITY THAT THE
INCUMBENTS ASSIGN EMPLOYEES TO THEIR VARIOUS DUTIES, ARE ABLE TO ISSUE
VERBAL REPRIMANDS AND WARNINGS, AND MAKE RECOMMENDATIONS TO THEIR
SUPERVISORS WITH RESPECT TO THE PERFORMANCE OF MEN UNDER THEIR
DIRECTION, THE RECORD REFLECTS SUCH DUTIES ARE ROUTINE IN NATURE, ARE
WITHIN ESTABLISHED GUIDELINES, AND DO NOT REQUIRE THE EXERCISE OF
INDEPENDENT JUDGMENT. FURTHER, THE JOB DESCRIPTION FOR THIS POSITION
INDICATES THAT MOST OF THE DUTIES INVOLVE PHYSICAL ACTIVITY ON THE PART
OF THE INCUMBENTS, SUCH AS MOVING AND PLACING INTO POSITION MATERIAL,
EQUIPMENT AND FURNITURE, EITHER MANUALLY, OR WITH SIMPLE MATERIAL
HANDLING EQUIPMENT AND TOOLS. THE RECORD ALSO REVEALS THAT THE
INCUMBENTS ARE REQUIRED TO PERFORM NORMAL JANITORIAL DUTIES SUCH AS
SWEEPING, MOPPING, BUFFING, ETC., AND THAT THEY ADDITIONALLY PERFORM
LIGHT GARDENING AND MAINTENANCE DUTIES. THE INCUMBENTS DO NOT INTERVIEW
FOR HIRING, EFFECTIVELY RECOMMEND PROMOTIONS OR IN-GRADE RAISES, ADJUST
GRIEVANCES, CONDUCT TRAINING, OR EXERCISE INDEPENDENT JUDGMENT IN THE
RUNNING OF THEIR SECTION. WHILE THEY MAY FILL IN FOR THEIR SUPERVISORS,
THIS OCCURS ONLY ON AN INTERMITTENT AND SPORADIC BASIS. BECAUSE THEIR
JOB FUNCTIONS ARE ESSENTIALLY ROUTINE IN NATURE EMPLOYEES WHO WORK WITH
THE SENIOR UTILITY MAN ARE ABLE TO PERFORM THEIR DUTIES WITHOUT ANY
GUIDANCE OR DIRECTION FROM THE INCUMBENTS.
BASED ON THE FOREGOING, I CONCLUDE THAT EMPLOYEES IN THIS
CLASSIFICATI4N DO NOT HAVE SUPERVISORY RESPONSIBILITIES IN THAT THEY
WORK WITH, AND ALONGSIDE, THEIR CREWS MOST OF THE TIME, SUCH DIRECTION
AS IS PROVIDED OTHER EMPLOYEES IS ROUTINE AND DOES NOT REQUIRE THE
EXERCISE OF INDEPENDENT JUDGMENT, AND THEY SUBSTITUTE FOR THEIR
SUPERIORS ONLY ON AN INTERMITTENT AND SPORADIC B SIS. ACCORDINGLY, I
FIND THAT EMPLOYEES IN THIS CLASSIFICATION ARE NOT SUPERVISORS WITHIN
THE MEANING OF THE ORDER AND, THEREFORE, THIS CLASSIFICATION SHOULD BE
INCLUDED IN THE UNIT.
SENIOR BUYER ( PURCHASING), S-5
THE SENIOR BUYER, WHO IS RESPONSIBLE DIRECTLY TO THE ACTIVITY
MANAGER, HAS APPROXIMATELY 4 BUYERS AND 1 PROCUREMENT CLERK UNDER HIS
DIRECTION. THE POSITION IS LOCATED IN THE PURCHASING DEPARTMENT OF THE
EXCHANGE. THE INCUMBENT IS RESPONSIBLE FOR ASSISTING IN THE
ADMINISTRATION OF ALL EXCHANGE POLICIES AND PROCEDURES OF THE
MERCHANDISE PROGRAM AND HE ASSUMES THE DUTIES OF THE ACTIVITY MANAGER IN
THE LATTER'S ABSENCE. HIS DUTIES ALSO ENCOMPASS THE TRAINING AND
SUPERVISING OF PURCHASING ACTIVITY PERSONNEL ON ALL RETAIL MERCHANDISE
MATTERS.
THE RECORD INDICATES THAT THE INCUMBENT INTERVIEWS APPLICANTS FOR
EMPLOYMENT, MAKES A SELECTION AND FORWARDS A RECOMMENDATION WHICH IS
USUALLY FOLLOWED. IT FURTHER INDICATES THAT VERBAL REPRIMANDS AND
WARNINGS ARE ISSUED BY THE INCUMBENT AND THAT HE HAS THE AUTHORITY AND
HAS, IN FACT, RECOMMENDED MORE SEVERE DISCIPLINE SUCH AS A WRITTEN
REPRIMAND, SUSPENSION AND DISCHARGE. THE SENIOR BUYER ALSO HAS THE
AUTHORITY AND HAS, IN FACT, RECOMMENDED PROMOTIONS AND REWARDS IN THE
FORM OF MERITORIOUS WAGE INCREASES AND LETTERS OF COMMENDATION, WHICH
ASSIGN AND TRANSFER EMPLOYEES TO THEIR VARIOUS DUTIES WITHIN THE
PURCHASING ACTIVITY. THE INCUMBENT EVALUATES THE PERFORMANCE OF
EMPLOYEES IN THE PURCHASING ACTIVITY BY WAY OF A STANDARD EVALUATION
FORM WHICH MUST BE DISCUSSED WITH THE EMPLOYEE AND SIGNED BY HIM.
FURTHER, HE HANDLES AND RESOLVES EMPLOYEE GRIEVANCES WITHIN THE
ACTIVITY, AND HAS THE AUTHORITY TO GRANT AND DENY LEAVE. MOREOVER, THE
SENIOR BUYER REGULARLY FILLS IN FOR HIS ACTIVITY MANAGER AND IS IN SOLE
CHARGE OF THE ACTIVITY ON THE AVERAGE OF ONE DAY PER WEEK.
IN VIEW OF THE FACT THAT AN EMPLOYEE IN THIS CLASSIFICATION POSSESSES
AUTHORITY TO DIRECT OTHER EMPLOYEES, HAS THE POWER TO MAKE EFFECTIVE
RECOMMENDATIONS AS TO HIRING, AND IS AUTHORIZED TO ADJUST GRIEVANCES,
AND IN THE EXERCISE OF THIS AUTHORITY HE UTILIZES INDEPENDENT JUDGMENT,
I FIND THAT THE INCUMBENT IS A SUPERVISOR WITHIN THE MEANING OF THE
ORDER AND, THEREFORE, THIS CLASSIFICATION SHOULD BE EXCLUDED FROM THE
UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO THE AFGE ON JUNE 24, 1965, AT
THE MARINE CORPS EXCHANGE 10-2, MARINE CORPS RECRUIT DEPOT, SAN DIEGO,
CALIFORNIA, BE, AND HEREBY IS, CLARIFIED BY INCLUDING IN SAID UNIT THE
POSITIONS OF OFFICE SUPERVISOR (MAIN STORE), H-10; AND SENIOR UTILITY
MAN (MAINTENANCE PROPERTY), H-8, AND BY EXCLUDING FROM SAID UNIT THE
POSITIONS OF SECTION SUPERVISOR (MAIN STORE), S-4; ASSISTANT SECTION
SUPERVISOR (MAIN STORE), S-1; STOCK CONTROL SUPERVISOR (WAREHOUSE),
S-2; SHIPPING SUPERVISOR (WAREHOUSE), S-1; ASSISTANT STOCK CONTROL
SUPERVISOR (WAREHOUSE), H-10; SUPERVISOR, UTILITY
(MAINTENANCE/PROPERTY), S-1; MAINTENANCE CHIEF (MAINTENANCE/PROPERTY),
H-15; ASSISTANT SUPERVISOR, UTILITY (MAINTENANCE/PROPERTY), H-11;
ACCOUNTING SUPERVISOR (ACCOUNTING), S-3; SENIOR BUYER (PURCHASING),
S-5; SUPERVISOR (PANTRY), S-1; ASSISTANT SUPERVISOR (PANTRY), H-7;
SUPERVISOR (CASH OFFICE), H-10; SUPERVISOR (ENLISTED SERVICE CLUB/FOOD
SERVICES), S-3; ASSISTANT SUPERVISOR (ENLISTED SERVICE CLUB/FOOD
SERVICES), S-1.
DATED, WASHINGTON, D.C.
JULY 9, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ AT THE HEARING, THE PARTIES, BY STIPULATIONS, AMENDED THE SUBJECT
PETITION TO DELETE TWO ADDITIONAL JOB CLASSIFICATIONS, ACTIVITY MANAGER
AND ASSISTANT ACTIVITY MANAGER. UNDER THESE CIRCUMSTANCES, I SHALL
TREAT THE PARTIES' STIPULATION AS A REQUEST TO WITHDRAW THE SUBJECT
PETITION INSOFAR AS IT APPLIES TO SUCH EMPLOYEE JOB CLASSIFICATIONS, AND
I FIND IT UNNECESSARY TO MAKE AN ELIGIBILITY DETERMINATION WITH RESPECT
TO SUCH JOB CLASSIFICATIONS. CF. ILLINOIS ARMY NATIONAL GUARD, 1ST
BATTALION, 202ND AIR DEFENSE ARTILLERY, ARLINGTON HEIGHTS, ILLINOIS,
A/SLMR NO. 370 AND NEW JERSEY DEPARTMENT OF DEFENSE, A/SLMR NO. 121.
/3/ AS NO JOB DESCRIPTION OR OTHER EVIDENCE WAS INTRODUCED AT THE
HEARING IN RESPECT TO THE EMPLOYEES IN THE CLASSIFICATION SERVICE
SUPERVISOR (SERVICE STATION), H-15, I MAKE NO FINDING AS TO WHETHER THE
EMPLOYEE IN THIS CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT.
4 A/SLMR 408; P. 450; CASE NO. 71-2708; JUNE 27, 1974.
ALBANY METALLURGY RESEARCH CENTER,
U.S. BUREAU OF MINES,
U.S. DEPARTMENT OF THE INTERIOR,
ALBANY, OREGON
A/SLMR NO. 408
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL UNION NO. 1141,
ALBANY, OREGON (COMPLAINANT), ALLEGING THAT THE ALBANY METALLURGY
RESEARCH CENTER, U.S. BUREAU OF MINES, U.S. DEPARTMENT OF THE INTERIOR,
ALBANY, OREGON (RESPONDENT), VIOLATED SECTION 19(A)(5) AND (6) OF THE
ORDER BY NOT CONSULTING WITH THE COMPLAINANT WITH REGARD TO PROPOSED
INTERPRETATIONS OF PUBLIC LAW 92-392 WHICH AFFECTED UNIT EMPLOYEES; BY
FAILING TO CONSULT WITH THE COMPLAINANT CONCERNING THE PROCEDURE TO BE
USED TO NOTIFY THE AFFECTED EMPLOYEES; AND BY THE RESPONDENT'S RESEARCH
DIRECTOR'S EQUATING "ANNOUNCE" AND "INFORM" WITH CONSULTATION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE PROMULGATION OF
NATIONAL OFFICE POLICY INVOLVING INTERPRETATIONS AS TO APPLICABILITY OF
CERTAIN PROVISIONS OF THE LAW WAS NOT AN ACT OF THE RESPONDENT NOR ONE
OVER WHICH IT HAD CONTROL. HE NOTED THAT UPON RECEIPT OF INSTRUCTIONS
AND INFORMATION FROM HIGHER MANAGEMENT AS TO THE ABOVE MATTER, THE
RESPONDENT IMMEDIATELY INFORMED THE COMPLAINANT. THE ADMINISTRATIVE LAW
JUDGE CONCLUDED ALSO THAT THE RESPONDENT HAD COMMITTED NO ACT, NOR HAD
IT ANY INFORMATION ABOUT WHICH IT COULD CONSULT WITH THE COMPLAINANT
PRIOR TO THE TIME IT RECEIVED THE INSTRUCTIONS AND INFORMATION. UNDER
THESE CIRCUMSTANCES, HE FOUND THAT THE RESPONDENT WAS NOT OBLIGATED TO
MEET AND CONFER OVER THE ADOPTION OF INTERPRETATIONS OF PUBLIC LAW
92-392 AND, CONSEQUENTLY, DID NOT VIOLATE SECTION 19(A)(6) OF THE ORDER.
WITH REGARD TO THE ALLEGATION THAT THE RESPONDENT FAILED TO CONSULT
REGARDING THE PROCEDURES FOR NOTIFYING AFFECTED EMPLOYEES, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE COMPLAINANT'S CHIEF STEWARD WAS
NOTIFIED IMMEDIATELY UPON RECEIPT OF THE INTERPRETATIONS WHICH WERE
DISCUSSED IN "GREAT DETAIL" WITH HIM AND WHICH HE REPORTED ON AT THE
COMPLAINANT'S EXECUTIVE COUNCIL MEETING. HE CONCLUDED THAT THE
RESPONDENT COMPLIED WITH THE REQUEST OF THE LABOR-MANAGEMENT COMMITTEE
THAT THE RESPONDENT CALL A MEETING OF THE EMPLOYEES INVOLVED TO EXPLAIN
THE MATTER TO THEM AND NOTED THAT NO REQUEST WAS MADE BY THE COMPLAINANT
TO ATTEND SUCH MEETING. THUS, THE ADMINISTRATIVE LAW JUDGE REASONED
THAT THE COMPLAINANT WAS IN NO POSITION TO COMPLAIN THAT ITS
REPRESENTATIVE WAS NOT PRESENT IN THE ABSENCE OF HAVING MADE A REQUEST
TO ATTEND ANY MEETING HELD. UNDER THESE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE
SECTION 19(A)(6) OF THE ORDER.
WITH REGARD TO THE ALLEGATION THAT THE RESPONDENT HAD EQUATED
"ANNOUNCE" AND "INFORM" WITH CONSULTATION IN A MEMORANDUM BY THE
RESPONDENT'S RESEARCH DIRECTOR TO THE COMPLAINANT, THE ADMINISTRATIVE
LAW JUDGE FOUND THAT THE RESPONDENT HAD INFORMED THE COMPLAINANT
ADEQUATELY BY PROMPTLY APPRISING IT OF THE MATERIAL INFORMATION AS IT
BECAME AVAILABLE. HE NOTED THAT ONE OF THE ESSENTIAL ELEMENTS OF
CONSULTATION IS THAT A PARTY THAT HAS BEEN ADEQUATELY INFORMED RESPOND
TO MATTERS WITH WHICH IT IS IN DISAGREEMENT, AND THAT THE "COMPLAINANT'S
SILENCE FOSTERED NEITHER A BARGAINING RELATIONSHIP OR CONSULTATION OF
THE TYPE IT DEMANDS OF RESPONDENT." UNDER THESE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE
SECTION 19(A)(6) OF THE ORDER IN THIS REGARD.
LASTLY, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RECORD DID NOT
ESTABLISH THAT THE RESPONDENT REFUSED TO ACCORD PROPER RECOGNITION TO
THE COMPLAINANT, AND THAT, THEREFORE, THE RESPONDENT'S CONDUCT WAS NOT
VIOLATIVE OF SECTION 19(A)(5) OF THE ORDER.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, AND THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION THAT
THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
ALBANY METALLURGY RESEARCH CENTER,
U.S. BUREAU OF MINES,
U.S. DEPARTMENT OF THE INTERIOR,
ALBANY, OREGON
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION NO. 1141,
ALBANY, OREGON
ON APRIL 8, 1974, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED HIS
REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT
THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED 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 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, I HEREBY ADOPT THE FINDINGS, CONCLUSIONS AND
RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 71-2708 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 27, 1974
DATED, WASHINGTON, D.C.
JUNE 27, 1974
IN THE MATTER OF:
ALBANY METALLURGY RESEARCH CENTER
U.S. BUREAU OF MINES
U.S. DEPARTMENT OF THE INTERIOR
ALBANY, OREGON,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL UNION NO. 1141
ALBANY, OREGON,
JOHN H. RUSSELL, PRESIDENT
LOCAL UNION NO. 1141
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
325 NORTHWEST ARMSTRONG WAY
CORVALLIS, OREGON 97330
ROLLIEN R. WELLS
RESEARCH DIRECTOR
ALBANY METALLURGY RESEARCH CENTER
P.O. BOX 70
ALBANY, OREGON 97321,
BEFORE: RHEA M. BURROW
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT ON AUGUST 22, 1973, BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION NO. 1141, ALBANY, OREGON (HEREINAFTER REFERRED TO
AS COMPLAINANT AND/OR UNION) AGAINST ALBANY METALLURGY RESEARCH CENTER,
U.S. BUREAU OF MINES, U.S. DEPARTMENT OF THE INTERIOR, (HEREINAFTER
REFERRED TO AS THE RESPONDENT) ALLEGING THAT THE RESPONDENT ENGAGED IN
CERTAIN CONDUCT VIOLATIVE OF SECTION 19(A)(5) AND (6) OF EXECUTIVE ORDER
11491 (HEREINAFTER CALLED THE ORDER). ESSENTIALLY THE COMPLAINT CHARGES
THAT: (1) THE WESTERN ADMINISTRATIVE OFFICE, BUREAU OF THE MINES,
(HEREINAFTER CALLED WAO) DID NOT CONSULT WITH THE COMPLAINANT REGARDING
PROPOSED INTERPRETATIONS OF PUBLIC LAW 92-392, WHICH AFFECTED JANITORIAL
EMPLOYEES REPRESENTED BY THE COMPLAINANT AT THE ALBANY STATION. THE
PROPOSED INTERPRETATIONS WERE ALLEGED TO HAVE BEEN SUBMITTED PRIOR TO
DECEMBER 8, 1972, BUT DID NOT BECOME AVAILABLE TO THE UNION UNTIL
JANUARY 17, 1973, A WEEK AFTER THE JANITORS HAD RECEIVED NOTICE OF THE
CHANGE IN PAY; (2) THE MANAGEMENT AT THE ALBANY METALLURGY RESEARCH
CENTER FAILED TO CONSULT WITH COMPLAINANT CONCERNING THE PROCEDURE TO BE
USED TO NOTIFY THE AFFECTED EMPLOYEES OF THE INTERPRETATION. IT IS
ALLEGED THAT AGENCY MANAGEMENT AGREED AT A LABOR-MANAGEMENT COMMITTEE
MEETING ON JANUARY 24, 1973, TO TRY AND HOLD A MEETING TO EXPLAIN TO THE
JANITORS WHY THEIR PAY RAISE WAS LESS THAN ANTICIPATED BUT NO MEETING
WAS HELD AND THE UNION WAS UNAWARE ANY ACTION HAD BEEN TAKEN TO INFORM
THEM UNTIL IT RECEIVED THE MEMORANDUM FROM R. R. WELLS ON APRIL 2, 1973;
AND, (3) MR. R. R. WELLS, RESPONDENT'S RESEARCH DIRECTOR, IN A
MEMORANDUM DATED FEBRUARY 22, 1973, EQUATED "ANNOUNCE" AND "INFORM" WITH
CONSULTATION.
A HEARING WAS HELD IN THE ABOVE-CAPTIONED MATTER ON JANUARY 22, 1974,
IN ALBANY, OREGON. THE PARTIES WERE WITHOUT COUNSEL BUT THROUGH THEIR
REPRESENTATIVES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
AND CROSS-EXAMINE WITNESSES AND TO INTRODUCE EVIDENCE BEARING ON THE
ISSUES HEREIN. ORAL ARGUMENTS WERE HEARD. THERE WERE NO BRIEFS
SUBMITTED FOR CONSIDERATION 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, CONCLUSION AND
RECOMMENDATION.
THE MATERIAL FACTS AS HEREIN REPORTED WERE NOT IN ESSENTIAL DISPUTE
AND ARE FOUND TO BE AS FOLLOWS:
PUBLIC LAW 92-392 AND CONGRESS APPROVED AUGUST 19, 1972, SET FORTH
AMONG OTHER THINGS THE POLICY OF CONGRESS THAT RATES OF PAY OF
PREVAILING RATE EMPLOYEES BE FIXED AND ADJUSTED FROM TIME TO TIME AS
NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH
PREVAILING RATES AND BE BASED ON PRINCIPLES THAT: "(1) THERE WILL BE
EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK FOR ALL PREVAILING RATE EMPLOYEES
WHO ARE WORKING UNDER SIMILAR CONDITIONS OF EMPLOYMENT IN ALL AGENCIES
WITHIN THE SAME LOCAL WAGE AREA; (2) THERE WILL BE RELATIVE DIFFERENCES
IN PAY WITHIN A LOCAL WAGE AREA WHEN THERE ARE SUBSTANTIAL OR
RECOGNIZABLE DIFFERENCES IN DUTIES, RESPONSIBILITIES AND QUALIFICATION
REQUIREMENTS AMONG POSITIONS; (3) THE LEVEL OF RATES OF PAY WILL BE
MAINTAINED IN LINE WITH PREVAILING LEVELS OF COMPARABLE WORKS WITHIN A
LOCAL WAGE AREA; AND (4) THE LEVEL OF RATES OF PAY WILL BE MAINTAINED
SO AS TO ATTRACT AND RETAIN QUALIFIED PREVAILING RATE EMPLOYEES."
IN ADDITION 5343(F) OF THE ACT PROVIDED THAT A PREVAILING RATE
EMPLOYEE IS ENTITLED TO PAY AT HIS SCHEDULED RATE PLUS A NIGHT
DIFFERENTIAL AMOUNTING TO 7-1/2 PERCENT OF THAT SCHEDULED RATE FOR
REGULARLY SCHEDULED NON-OVERTIME WORK A MAJORITY OF WHICH IS PERFORMED
BETWEEN 3:00 P.M. AND MIDNIGHT AND 10 PERCENT WHERE A MAJORITY OF THE
HOURS OF SUCH WORK OCCURS BETWEEN 11:00 P.M. AND 8:00 A.M. THE ACT ALSO
SPECIFIED THAT NIGHT DIFFERENTIAL UNDER THIS SUBSECTION IS A PART OF
BASIS PAY. UNDER SECTION 15(A), THE PROVISIONS OF THIS ACT BECAME
EFFECTIVE ON THE FIRST DAY OF THE FIRST APPLICABLE PAY PERIOD WHICH
BEGAN ON OR AFTER THE NINETIETH DAY AFTER THE DATE OF ENACTMENT OF THE
ACT.
THERE WERE SIX JANITORS EMPLOYED AT THE ALBANY METALLURGY RESEARCH
CENTER WHEN THE LAW BECAME EFFECTIVE ON NOVEMBER 26, 1972; WHEN THE
JANITORS RECEIVED THEIR PAY CHECKS ON OR ABOUT JANUARY 9, 1973, FOR THE
PAY PERIODS AFTER APPLICATION OF THE SHIFT DIFFERENTIAL INCREASE BECAME
EFFECTIVE, THEY WERE DISSATISFIED WITH THE AMOUNT THEY RECEIVED.
A MEMORANDUM /1/ DATED JANUARY 3, 1973, FROM CHIEF, DIVISION OF
COMPENSATION AND LABOR RELATIONS, OFFICE OF THE SECRETARY, U.S.
DEPARTMENT OF THE INTERIOR TO THE PERSONNEL OFFICER, BUREAU OF MINES,
RELATED TO QUESTIONS ON THE IMPLEMENTATION OF THE FEDERAL WAGE SYSTEM
THAT HAD PREVIOUSLY BEEN ASKED BY THE BUREAU OF MINES PERSONNEL OFFICE
IN A MEMORANDUM DATED DECEMBER 11, 1972. THE MEMORANDUM STATED IN PART
THAT AS TO CASE NO. 4: "WE UNDERSTAND THAT THE EMPLOYEE ALTERNATES
MONTHLY ON THE SECOND AND THIRD SHIFTS AND DOES NOT WORK ON THE FIRST
SHIFT. IN THIS CASE THE NEW SECOND AND THIRD SHIFT RATES OF $3.97 AND
$4.06 WILL BE APPLICABLE." A COPY OF THIS MEMORANDUM WAS FORWARDED BY
THE CHIEF, DIVISION OF PERSONNEL BUREAU OF MINES TO THE CHIEFS, BRANCH
OF PERSONNEL, WESTERN ADMINISTRATIVE OFFICE, DENVER, COLORADO ON JANUARY
9, 1973, AND THENCE TO OPAL G. BURCH, /2/ PERSONNEL ASSISTANT, ALBANY
METALLURGY RESEARCH CENTER ON JANUARY 12, 1973.
A MEMORANDUM /3/ DATED JANUARY 18, 1973, CONCERNING A GRIEVANCE OVER
JANITOR'S PAY WAS FORWARDED TO THE RESPONDENT AND ON FEBRUARY 3, 1973,
THERE WAS A GRIEVANCE MEMORANDUM OVER APPLICATION OF SHIFT DIFFERENTIAL
FORWARDED THROUGH THE RESPONDENT'S RESEARCH DIRECTOR AND THE CHIEF,
WESTERN ADMINISTRATIVE OFFICE, DENVER, COLORADO, TO THE DIRECTOR OF THE
BUREAU OF MINES, WASHINGTON, D.C. AN APPEAL FROM THE FINAL AGENCY
DETERMINATION THAT THE SHIFT DIFFERENTIAL COMPUTATION PROVIDED IN THE
MEMORANDUM OF JANUARY 3, 1973 WAS THE CORRECT ONE AND THAT THE DECISION
IS PREDICATED ON THE PROVISION OF PL-92-392 (5 USC 5343(F)) WHICH STATES
THAT SHIFT DIFFERENTIAL PAY IS APPLIED TO THE EMPLOYEES SCHEDULED RATE
OF PAY WAS LATER TAKEN TO THE COMPTROLLER GENERAL. /4/
A MEMORANDUM DATED FEBRUARY 3, 1973, RELATING TO AN UNFAIR LABOR
PRACTICE CHARGE WAS SENT TO RESPONDENT'S RESEARCH DIRECTOR ALLEGING
19(A)(5) AND (6) VIOLATIONS OF THE ORDER IN THE MATTER OF DETERMINING
THE APPROPRIATE SHIFT DIFFERENTIAL RATES FOR JANITORS BECAUSE OF FAILURE
TO RECOGNIZE COMPLAINANT'S LOCAL 1141 AS THE EXCLUSIVE REPRESENTATIVE OF
THE JANITORS; ALSO FOR FAILING TO CONSULT WITH THE LOCAL ABOUT THE
SPECIAL APPLICATION OF THE SHIFT DIFFERENTIAL LAW BEFORE THE JANITORS
RECEIVED NOTIFICATION OF THE ACTION; AND THAT RESPONDENT FAILED TO
CONSULT WITH LOCAL 1141 CONCERNING THE METHOD OF INFORMING THE JANITORS
OF THE DECISION THAT HAD BEEN MADE. THE MATTER WAS ALSO THE SUBJECT OF
A SUBSEQUENT MEMORANDUM FROM COMPLAINANT DATED MARCH 27, 1973. /6/
ONE OF THE RESPONDENT'S CONTENTIONS AS TO COMPLAINANT'S FIRST ALLEGED
VIOLATION WAS TO THE EFFECT THAT IT WAS NOT OBLIGATED TO BARGAIN WITH
AFFE LOCAL 1141 AS TO IMPLEMENTATION OF THE NEW LAW, PUBLIC NO. 92-392,
BECAUSE IT WAS MERELY FOLLOWING POLICY DIRECTED AND PROMULGATED AT
HIGHER AGENCY LEVEL TO ACHIEVE CONFORMANCE AND EQUALITY IN PAY OF ALL
SIMILARLY SITUATED EMPLOYEES INCLUDING THOSE IN THE WESTERN
ADMINISTRATIVE OFFICE REGION WHEREIN THE RESPONDENT AGENCY AT ALBANY,
OREGON, IS LOCATED.
THE COMPLAINANT HAS BEEN THE EXCLUSIVE REPRESENTATIVE AT RESPONDENT'S
INSTALLATION AT ALBANY, OREGON, AT ALL TIMES MATERIAL TO THIS PROCEEDING
BUT DOES NOT REPRESENT THE WESTERN ADMINISTRATIVE OFFICE AT DENVER.
THE ORAL TESTIMONY AND DOCUMENTARY RECORDS REVEAL THAT A RESPONSE TO
QUESTIONS ON BEHALF OF THE WESTERN ADMINISTRATIVE OFFICE THAT WERE
SUBMITTED ON DECEMBER 11, 1972, WAS DISPATCHED BACK TO THAT OFFICE FROM
THE CHIEF, DIVISION OF PERSONNEL BUREAU OF MINES ON JANUARY 9, 1973, AND
TO THE ALBANY INSTALLATION ON JANUARY 12, 1973. IT WAS RECEIVED AT
ALBANY ON JANUARY 17, 1973. EVEN BEFORE THE SUBMISSION ON DECEMBER 11,
1972 THE RESPONDENT'S PERSONNEL SPECIALIST, OPAL BURCK HAD LEARNED BY
TELEPHONE THAT THE BUREAU OF MINES PLANNED TO REFER THE REQUEST TO THE
DEPARTMENT OF THE INTERIOR FOR INTERPRETATION AND COMPLAINANT'S
PRESIDENT WAS NOTIFIED OF THE PENDING RULING BY THE DEPARTMENT.
RESPONDENT'S PERSONNEL DIRECTOR MET WITH THE PRESIDENT OF NFFE LOCAL
1141 ON DECEMBER 18, 1972, AND INFORMED HIM THAT THE CHANGED WAGE
DIFFERENTIAL UNDER PUBLIC LAW 92-392 WOULD NOT BE REFLECTED ON THE
JANITORS PAY CHECKS TO BE DISTRIBUTED THE FOLLOWING DAY DUE TO LACK OF
DECISION BY THE DEPARTMENT; HE WAS ALSO INFORMED THAT HE WOULD BE
IMMEDIATELY NOTIFIED OF ANY INFORMATION REVIEWED CONCERNING THE WAGE
DECISION AND IMPLEMENTATION.
ON OR ABOUT JANUARY 4, 1973, THE WESTERN ADMINISTRATIVE OFFICE ACTING
ON INFORMATION RELAYED BY TELEPHONE FROM WASHINGTON HEADQUARTERS TO
EXPEDITE THE PAYROLL PROCESS, PREPARED RETROACTIVE PAY CHANGE SLIPS
WHICH WERE SENT TO INDIVIDUAL JANITORS WITH THEIR JANUARY 8, 1973, PAY
CHECKS. THE DAY AFTER THE JANITORS WERE PAID THE PRESIDENT OF THE
COMPLAINANT'S UNION MET WITH RESPONDENTS AND ADMINISTRATIVE OFFICER AND
RESEARCH COORDINATOR TO REPORT THE DISAPPOINTMENT OF THE JANITORS OVER
THE INCREASE CAUSED BY THE DIFFERENTIAL RATES. WHEN IT WAS RECEIVED ON
JANUARY 17, 1973, THE UNION STEWARD WAS CALLED THE SAME DAY TO REVIEW
THE INFORMATION WITH THE PERSONNEL SPECIALIST. A COPY OF THE
INFORMATION RECEIVED AND SALARY CALCULATIONS FOR ALL WAGE GRADE
EMPLOYEES WAS GIVEN TO THE LOCAL UNION PRESIDENT. THE UNION PRESIDENT
TESTIFIED THAT IT WAS NOT UNTIL AFTER THE JANITORS WERE PAID IN EARLY
JANUARY 1973 THAT HE LEARNED THAT THE QUESTIONS THAT HAD BEEN SUBMITTED
FOR INTERPRETATION DID NOT ORIGINATE FROM THE ALBANY INSTALLATION.
IN DEPARTMENT OF DEFENSE, AIR FORCE DEFENSE LANGUAGE INSTITUTE,
ENGLISH LANGUAGE BRANCH, LACKLAND AIR FORCE BASE, TEXAS, A/SLMR NO. 322,
AN UNFAIR LABOR PRACTICE PROCEEDING ALLEGING VIOLATION OF SECTION
19(A)(6) OF THE ORDER BY THE RESPONDENT BASED ON AN ALLEGED UNILATERAL
IMPLEMENTATION OF DEFENSE LANGUAGE INSTITUTE REGULATION 690-2, THE
ASSISTANT SECRETARY FOUND THAT:
". . . THE RESPONDENT WAS NOT OBLIGATED TO MEET AND CONFER WITH THE
COMPLAINANT OVER THE
ADOPTION OF DLI REGULATION 690-2. IN THIS CONNECTION, 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 STATED THAT 'HIGHER
LEVEL PUBLISHED POLICIES
AND REGULATIONS THAT ARE APPLICABLE UNIFORMLY TO MORE THAN ONE
ACTIVITY MAY PROPERLY LIMIT THE
SCOPE OF NEGOTIATIONS. . . ' THUS, HE 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; HE FURTHER FOUND THAT WHILE, IN HIS OPINION IN THE
CIRCUMSTANCES OF THE INSTANT
CASE, IT WOULD HAVE BEEN BETTER PRACTICE FOR AGENCY HEADQUARTERS,
PRIOR TO THE ISSUANCE OF DLI
REGULATION 690.2, TO HAVE NOTIFIED THE COMPLAINANT OF ITS INTENTION
TO ISSUE A NEW REGULATION
AND TO HAVE SOUGHT THE VIEWS OF THE COMPLAINANT WITH RESPECT THERETO,
ONCE THE AGENCY
HEADQUARTERS ISSUED THE REGULATION APPLICABLE TO EMPLOYEES OF OTHER
BRANCHES OF DLI AS WELL AS
THOSE DLIEL EMPLOYEES AT LACKLAND AIR FORCE BASE, THE MATTERS
CONTAINED THEREIN IN EFFECT WERE
REMOVED FROM THE SCOPE OF NEGOTIATIONS AT THE LOCAL LEVEL.
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."
THE EVIDENCE IN THIS PROCEEDING DOES NOT REVEAL THAT THE PROMULGATION
OF NATIONAL OFFICE POLICY PURSUANT TO PUBLIC LAW NO. 92-392 INCLUDING
INTERPRETATIONS AS TO APPLICABILITY OF CERTAIN PROVISIONS OF THE LAW WAS
AN ACT OF THE RESPONDENT ACTIVITY OR ONE OVER WHICH IT HAD ANY CONTROL.
IN FACT, THE RECEIPT OF INSTRUCTIONS AND INFORMATION AS TO THE PROPER
AMOUNT THAT THE JANITORS SHOULD BE PAID WAS RECEIVED BY RESPONDENT MORE
THAN A WEEK AFTER EACH OF THE JANITORIAL EMPLOYEES HAD GOTTEN THEIR PAY
CHECKS. THE RESPONDENT HAD COMMITTED NO ACT OR HAD ANY INFORMATION
ABOUT WHICH IT COULD CONSULT WITH COMPLAINANT PRIOR TO JANUARY 17, 1973.
THUS, I FIND THAT THE RESPONDENT WAS NOT OBLIGATED TO MEET AND CONFER
OVER THE ADOPTION OF INTERPRETATIONS OF PL 92-392; CONSEQUENTLY; THE
RESPONDENT DID NOT VIOLATE SECTION 19(A)(6) OF THE ORDER WHICH PRECLUDES
AGENCY MANAGEMENT FROM REFUSING TO CONSULT, CONFER, OR NEGOTIATE WITH A
LABOR ORGANIZATION AS IS REQUIRED BY THIS ORDER, SINCE THIS WAS NOT A
MATTER REQUIRED BY THE ORDER. FURTHER, THE COMPLAINANT HAD NO AGREEMENT
WITH THE WESTERN ADMINISTRATIVE OFFICE REQUIRING THAT OFFICE TO
NEGOTIATE WITH IT.
A SECOND ALLEGED VIOLATION AND CONTENTION OF THE COMPLAINANT IS THAT
THE RESPONDENT FAILED TO CONSULT WITH IT AS TO THE PROCEDURE TO BE USED
TO NOTIFY THE AFFECTED JANITORIAL EMPLOYEES OF THE DEPARTMENT OF
INTERIOR, BUREAU OF MINES INTERPRETATION RECEIVED BY RESPONDENT'S OFFICE
ON JANUARY 17, 1973.
NFFE LOCAL 1141 CHIEF STEWARD JAMES HENDRICKS TESTIFIED THAT THE
FIRST KNOWLEDGE HE HAD OF THE JANITORS' CONFUSION AND BITTERNESS
REGARDING THEIR SHIFT DIFFERENTIAL INCREASE WAS WHEN THEY WERE PAID ON
JANUARY 8, 1973, THERE WAS A SLIP ATTACHED TO THEIR CHECKS WHICH STATED
WHAT THE DIFFERENTIAL WAS TO BE AND IT WAS NOT AS MUCH AS THEY
ANTICIPATED. HENDRICKS STATED THAT HE TALKED TO RESPONDENT'S
ADMINISTRATIVE OFFICER AT THAT TIME BUT HE DID NOT KNOW THEN HOW THE
INTERPRETATIONS ON CALCULATIONS HAD BEEN MADE. ON JANUARY 17, 1973, THE
ADMINISTRATIVE OFFICER CALLED HIM TO THE OFFICE OF OPAL BURCK AND SHE
WENT OVER THE MATTER WITH HIM "IN GREAT DETAIL EXACTLY HOW THEY HAD
COMPUTED THIS SHIFT DIFFERENTIAL AND HOW IT RELATED TO THE SAVED PAY
STATUS OF THESE JANITORS. AT THE TIME, I FELT I UNDERSTOOD IT, AND IT
SEEMED FAIR TO ME BASED ON THE HISTORY. SHE WENT BACK AND EXPLAINED HOW
THEY GOT ON THIS SAVED PAY IN THE FIRST PLACE . . . " WHEN ASKED AS TO
WHETHER THERE WAS ANY DISCUSSION OF HOW THE SITUATION MIGHT BE EXPLAINED
TO THE JANITORS HE STATED:
"WELL, THEY EXPLAINED IT TO ME SO THAT, HOPEFULLY, I UNDERSTOOD WHAT
THE-- HOW THE
COMPUTATIONS WERE MADE, AND THEN I WAS TO GO BACK TO THE UNION AND
TRY TO EXPLAIN IT TO THE
UNION OF HOW THE COMPUTATIONS WERE MADE."
MR. HENDRICKS STATED THAT A DAY OR SO LATER HE EXPLAINED THE MATTER
AT A UNION EXECUTIVE MEETING. NFFE LOCAL 1141 PRESIDENT RUSSELL
TESTIFIED THAT HE WAS FURNISHED COPIES OF THE INFORMATION REFLECTED IN
JOINT EXHIBIT NO. 1(A),(B) AND (C) ON JANUARY 17, 1973. A DAY OR SO
PREVIOUSLY ONE OF THE JANITORS PAY SLIPS HAD BEEN BROUGHT TO HIS
ATTENTION AND HE HAD GONE TO MANAGEMENT AND WAS TOLD THAT MOST OF THE
JANITORS HAD COME UP INDIVIDUALLY AND DISCUSSED THE MATTER WITH MRS.
BURCK AND SHE HAD GIVEN THEM WHAT INFORMATION SHE HAD. AN EXECUTIVE
MEETING OF THE UNION WAS LATER HELD AND IT WAS DECIDED TO ASK THAT A
LABOR-MANAGEMENT MEETING BE CALLED TO SALVE THE CONSCIENCE AND MOOD OF
THE JANITORS WHO WERE QUITE UPSET. THE LABOR-MANAGEMENT COMMITTEE
MEETING /7/ WAS HELD ON JANUARY 24, 1973, /8/ AND THE MINUTES OF THE
MEETING REFLECT THAT MANAGEMENT AGREED THAT IT WOULD TRY TO ARRANGE A
MEETING WITH THE JANITORS TO MORE FULLY EXPLAIN THE REASONS BEHIND THE
PAY DECISION APPLICATION OF THE SHIFT DIFFERENTIAL FOR JANITORS
EFFECTIVE NOVEMBER 26, 1972. THE RESPONDENT'S RESEARCH DIRECTOR
TESTIFIED IN EFFECT THAT MEETINGS WERE HELD IN THE PERSONNEL OFFICE WITH
THE SIX JANITORS, ONE AT THE END OF THE SHIFT ON JANUARY 24, 1973, AND
ANOTHER AT THE END OF THE SHIFT THE FOLLOWING MORNING. AN EXPLANATION
WAS MADE TO THEM CONCERNING THE BASIS FOR THE DIFFERENTIAL WAGE RATE
THEY WERE RECEIVING. SEPARATE MEETINGS WERE HELD BECAUSE OF DIFFICULTY
OF GETTING THE JANITORS TOGETHER AT ONE TIME BECAUSE OF THEIR DIFFERENT
SHIFTS. THERE WAS NO UNION REPRESENTATIVE AT THE MEETING /9/ AND THE
RESPONDENT'S RESEARCH DIRECTOR STATED THAT HIS OFFICE HAD NOT RECEIVED
ANY REQUEST FROM THE UNION EXPRESSING A DESIRE TO ATTEND THE MEETINGS
RECOMMENDED BY THE LABOR-MANAGEMENT COMMITTEE.
THE TESTIMONY OF COMPLAINANT'S OWN WITNESSES REFUTES THE ALLEGATION
THAT RESPONDENT FAILED TO CONSULT WITH THE UNION AS TO THE PROCEDURE TO
BE USED IN NOTIFYING THE AFFECTED EMPLOYEES. THE UNION WAS NOTIFIED
IMMEDIATELY UPON RECEIPT OF THE INTERPRETATIONS AND THE MATTER ACCORDING
TO CHIEF STEWARD HENDRICKS WAS DISCUSSED WITH HIM IN "GREAT DETAIL" AND
HE WAS TO EXPLAIN IT TO THE UNION. HE PRESENTED IT AT A UNION EXECUTIVE
COUNCIL MEETING AND THE COUNCIL REFERRED THE MATTER TO A
LABOR-MANAGEMENT COMMITTEE WHICH REQUESTED THE RESPONDENT'S AGENCY TO
CALL A MEETING AND EXPLAIN THE SITUATION TO THE JANITORS. THE
RESPONDENT CALLED A MEETING OF THE JANITORS THE SAME DAY IT RECEIVED THE
REQUEST AND FOLLOWED THROUGH THE NEXT MORNING WITH ANOTHER MEETING FOR
THOSE UNABLE TO ATTEND THE FIRST SESSION. THERE HAD BEEN NO REQUEST
MADE BY THE COMPLAINANT TO HAVE ONE OF ITS REPRESENTATIVES ATTEND THE
MEETING OF THE JANITORS.
THUS, I FIND THIS CASE ANALOGOUS TO THOSE HOLDING THAT
NOTWITHSTANDING THE FACT THAT THERE IS NO OBLIGATION TO MEET AND CONFER
ON A PARTICULAR MANAGEMENT DECISION, AN EXCLUSIVE REPRESENTATIVE SHOULD
BE AFFORDED THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSISTENT
WITH THE LAW AND REGULATIONS, AS TO THE PROCEDURES MANAGEMENT INTENDED
TO OBSERVE IN EFFECTING ITS DECISION, AND AS TO THE IMPACT OF SUCH
DECISION ON THOSE EMPLOYEES ADVERSELY AFFECTED. /10/ EVEN ASSUMING THAT
RESPONDENT HAD THE RESPONSIBILITY TO BARGAIN IN SOME FORM AS TO HOW IT
WOULD EXPLAIN THE EFFECT OF THE INTERPRETATIONS OF THE LAW AS IT APPLIED
TO ITS JANITORIAL EMPLOYEES, I FIND THAT THE COMPLAINANT UNION NEVER
REQUESTED TO BARGAIN ON THE MATTER AFTER IT WAS PROMPTLY NOTIFIED OF ALL
THE INFORMATION THAT THE RESPONDENT POSSESSED; THAT THE FAILURE BY THE
COMPLAINANT TO REQUEST THE RESPONDENT TO MEET AND CONFER IN THIS REGARD
AFTER HAVING BEEN TIMELY NOTIFIED OF THE INTERPRETATIONS REGARDING THE
APPLICABILITY OF PROVISIONS OF THE NEW LAW AS IT APPLIED TO THE
RESPONDENT'S JANITORIAL EMPLOYEES WAS SUCH AS TO RELIEVE THE EMPLOYER OF
ITS OBLIGATION. EVEN IF NOT RELIEVED, RESPONDENT'S ACTION IN MEETING
WITH THE JANITORS COMMENCING ON JANUARY 24, 1973, WAS TO AID AND
COMPLETE THE UNDERTAKING OF COMPLAINANT'S CHIEF STEWARD ON JANUARY 17,
1973, TO EXPLAIN THE DIFFERENTIAL PAY RATES TO EMPLOYEE JANITORS.
REGARDLESS OF WHETHER THE RECOMMENDATIONS TO RESPONDENT TO MAKE AN
APPROPRIATE EXPLANATION OF THE EFFECT OF THE DIFFERENTIAL WAGE RATES TO
THE JANITORS BE CONSIDERED OR REQUESTED FROM THE UNION OR THE
LABOR-MANAGEMENT COMMITTEE, THE UNION IS IN NO POSITION TO COMPLAIN THAT
ITS REPRESENTATIVES WAS NOT PRESENT, IN THE ABSENCE OF HAVING MADE A
REQUEST TO ATTEND ANY MEETING OR MEETINGS THAT THE RESPONDENT AGREED TO
SCHEDULE AND HOLD. I FIND THAT THE RESPONDENT DID NOT FAIL TO CONSULT
WITH THE COMPLAINANT REGARDING THE PROCEDURE TO BE USED TO ADVISE THE
AFFECTED EMPLOYEES OF THE INTERPRETATION OF PUBLIC LAW 92-392.
THE LAST VIOLATION ALLEGED THAT THE RESPONDENT'S RESEARCH DIRECTOR IN
AN MEMORANDUM DATED FEBRUARY 22, 1973, EQUATED ANNOUNCE AND INFORM WITH
CONSULTATION. MORE IMPORTANT THAN WORD CHARACTERIZATION IS WHETHER THE
RESPONDENT ADEQUATELY INFORMED THE COMPLAINANT OF THE INFORMATION
AVAILABLE TO IT REGARDING THE ISSUES IN CONTROVERSY. THE MEMORANDUM
ENUMERATED THE MEETINGS THAT HAD BEEN HELD WITH THE COMPLAINANT AND ITS
OFFICERS. THE TESTIMONY AT THE HEARING EVEN THAT FROM THE COMPLAINANT
SUBSTANTIATED THE MATTERS REFERRED TO IN THE MEMORANDUM. THE RECORD
REVEALS THAT THE COMPLAINANT WAS PROMPTLY APPRISED OF THE MATERIAL
INFORMATION REGARDING THE INTERPRETATIONS AS TO THE JANITORS
DIFFERENTIAL WAGE RATES AS IT BECAME AVAILABLE. ONE OF THE ESSENTIAL
ELEMENTS OF CONSULTATION IS THAT A PARTY THAT HAS BEEN ADEQUATELY
INFORMED RESPOND TO MATTERS WITH WHICH IT IS IN DISAGREEMENT.
COMPLAINANT'S SILENCE FOSTERED NEITHER A BARGAINING RELATIONSHIP OR
CONSULTATION OF THE TYPE IT DEMANDS OF RESPONDENT. IT SUFFICES TO SAY
NEITHER THE CONTENTS OF THE MEMORANDUM OR THE EVIDENCE OF RECORD
ESTABLISHES A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
ON THE BASIS OF THE FOREGOING AND THE ENTIRE RECORD, I FIND:
(1) THAT THE PROMULGATION OF INTERPRETATIONS PURSUANT TO PUBLIC LAW
NO. 92-392 WAS NOT AN ACT OF THE RESPONDENT, OR ONE OVER WHICH IT HAS
CONTROL, AND IT COULD NOT NOR WAS IT REQUIRED TO CONSULT REGARDING THIS
MATTER WITH THE COMPLAINANT; THE COMPLAINANT HAD NO COLLECTIVE
BARGAINING AGREEMENT WITH THE WESTERN ADMINISTRATIVE OFFICE REQUIRING
THAT OFFICE TO CONSULT IN ANY FORM WITH NFFE LOCAL NO. 1141;
(2) THE RESPONDENT DID NOT FAIL TO CONSULT WITH THE COMPLAINANT
CONCERNING THE AFFECTED JANITORIAL EMPLOYEES AS TO PROCEDURE TO BE
UTILIZED TO NOTIFY THE AFFECTED EMPLOYEES OF THE INTERPRETATION;
(3) NEITHER THE CONTENTS OF RESPONDENT'S FEBRUARY 22, 1973 MEMORANDUM
OR THE EVIDENCE OF RECORD ESTABLISHES A VIOLATION OF SECTION 19(A)(6) OF
THE ORDER; AND,
(4) THAT THE RESPONDENT DID NOT VIOLATE SECTION 19(A)(5) OF THE ORDER
BY REFUSING TO ACCORD PROPER RECOGNITION TO NFFE LOCAL NO. 1141, A LABOR
ORGANIZATION QUALIFIED FOR SUCH RECOGNITION.
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)(5) AND (6) OF
THE ORDER. /11/
UPON THE BASIS OF THE ABOVE FINDINGS, CONCLUSION AND THE ENTIRE
RECORD, I RECOMMEND TO THE ASSISTANT SECRETARY:
THAT THE COMPLAINT IN CASE NO. 71-2708 BE DISMISSED.
DATED: APRIL 8, 1974
WASHINGTON, D.C.
/1/ JOINT EXHIBIT NO. 1(B). AT THE HEARING THE COMPLAINANT AND
RESPONDENT BY STIPULATION, AGREED TO SUBMIT JOINT EXHIBITS IN THIS
PROCEEDING AND EACH HEREAFTER IS REFERRED TO BY APPROPRIATE NUMBER AS
JOINT EXHIBIT.
/2/ JOINT EXHIBIT NO. 1.
/3/ JOINT EXHIBIT NO. 4.
/4/ JOINT EXHIBIT NO. 22, DATED AUGUST 16, 1973.
/5/ JOINT EXHIBIT NO. 9.
/6/ JOINT EXHIBIT NO. 14.
/7/ THE LABOR-MANAGEMENT COMMITTEE CONSISTED OF THREE PERSONS
SELECTED BY THE UNION AND THREE BY MANAGEMENT WHO MET TO CONSIDER MUTUAL
AGENCY AND UNION PROBLEMS OR, SITUATIONS THAT AROSE. IT HAD NO BINDING
AUTHORITY BUT COULD RECOMMEND AND REFER SUGGESTIONS AND PROPOSALS FOR
CONSIDERATION.
/8/ JOINT EXHIBIT NO. 6.
/9/ I DISCREDIT THAT PART OF THE TESTIMONY OF PHILIP NIEBUHR THAT THE
LABOR-MANAGEMENT COMMITTEE REQUESTED A REPRESENTATIVE OF THE UNION TO BE
PRESENT AT THE MEETING FOR THE JANITORS. MR. NIEBUHR WAS QUITE EVASIVE
TO DIRECT QUESTIONS THROUGHOUT HIS TESTIMONY; EVEN TO ONE QUESTION
ASKED BY THE ADMINISTRATIVE LAW JUDGE, HIS ANSWER WAS SO FAR OUT OF LINE
IT WAS CORRECTED BY THE UNION PRESIDENT; HIS REMARK THAT A UNION
REPRESENTATIVE WAS TO BE PRESENT IS NOT SUBSTANTIATED BY THE MINUTES OF
THE MEETING OR BY OTHER SUBSTANTIVE EVIDENCE OF RECORD.
/10/ SEE, UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR, NO. 289, AND
FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR, NO. 329; SEE
ALSO VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC,
NO. 71 A-31, AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA FLRC, NO.
71 A-56.
/11/ 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."
4 A/SLMR 407; P. 442; CASE NO. 64-2111(RO); JUNE 27, 1974.
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT POLK, LOUISIANA
A/SLMR NO. 407
THE SUBJECT CASE INVOLVED OBJECTIONS TO AN ELECTION HELD ON MAY 14,
1973, FILED BY THE INTERVENOR, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3441. THE PETITIONER, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R5-169, WON A MAJORITY OF VALID VOTES CAST
IN THE ELECTION.
ONE OF THE OBJECTIONS FILED BY THE INTERVENOR WHICH WAS THE SUBJECT
OF THE HEARING IN THIS MATTER ALLEGED THAT THE PETITIONER HAD ENGAGED IN
CONDUCT IMPROPERLY AFFECTING THE RESULTS OF THE ELECTION BY DISTRIBUTING
A HANDBILL ON MAY 12, 1973, TWO DAYS BEFORE THE DATE OF THE ELECTION.
THE EVIDENCE REVEALED THAT THE HANDBILL WAS A REPRINT OF AN ARTICLE
APPEARING IN THE APRIL 1972 ISSUE OF NAVAL AFFAIRS, A MONTHLY
PUBLICATION OF THE FLEET RESERVE ASSOCIATION. THE OBJECTION ALLEGED
THAT THE HANDBILL WAS DISTRIBUTED AT SUCH A LATE HOUR THAT THE
INTERVENOR DID NOT HAVE SUFFICIENT TIME TO RESPOND TO CERTAIN UNFOUNDED
AND DAMAGING STATEMENTS MADE IN THE HANDBILL.
A SECOND OBJECTION FILED BY THE INTERVENOR ON WHICH EVIDENCE WAS
ADDUCED AT THE HEARING ALLEGED THAT THE PETITIONER HAD ENGAGED IN
CONDUCT IMPROPERLY AFFECTING THE RESULTS OF THE ELECTION BY THE
DISTRIBUTION OF A HANDBILL ON MAY 11, 1973, CONTAINING FALSE, MISLEADING
AND UNFOUNDED INFORMATION REGARDING THE PETITIONER'S DUES STRUCTURE AND
THE ABILITY OF EMPLOYEES TO WITHDRAW FROM THE PETITIONER.
WITH REGARD TO THE FIRST OBJECTION, THE ADMINSTRATIVE LAW JUDGE
CONCLUDED, BASED UPON HIS CREDIBILITY FINDINGS, THAT THE HANDBILL
REFERRED TO IN THE OBJECTION WAS PROMULGATED AND DISTRIBUTED TO UNIT
EMPLOYEES ON MAY 6, 1973, AND THEREAFTER, AND THAT SUCH TIMING OF THE
DISTRIBUTION OF THE HANDBILL DID NOT PREVENT THE INTERVENOR FROM MAKING
AN EFFECTIVE REPLY THERETO HAD IT SO DESIRED. THE ADMINISTRATIVE LAW
JUDGE FURTHER CONCLUDED THAT THE FACT THAT A COPY OF THE HANDBILL DID
NOT COME INTO THE POSSESSION OF THE INTERVENOR UNTIL THE DAY BEFORE THE
ELECTION IS NOT CONTROLLING, AND THAT WITH THE EXERCISE OF REASONABLE
DILIGENCE THE INTERVENOR SHOULD HAVE BEEN ABLE ADEQUATELY TO HAVE
REBUTTED, REFUTED, EXPLAINED OR CLARIFIED ANY OF THE STATEMENTS BY THE
PETITIONER IN THE HANDBILL. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED THAT THE FIRST OBJECTION BE OVERRULED.
WITH REGARD TO THE SECOND OBJECTION, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE PETITIONER'S STATEMENTS REGARDING ITS DUES STRUCTURE
WAS NOT A MISREPRESENTATION OF FACT, AND THAT, IN FACT, THE STATEMENTS
MADE BY THE PETITIONER WITH REGARD TO ITS DUES STRUCTURE WERE TRUE. IN
ADDITION, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE STATEMENT MADE
BY THE PETITIONER AS TO THE ABILITY OF EMPLOYEES TO WITHDRAW AT ANY TIME
WAS NOT A MISLEADING STATEMENT BECAUSE THE EVIDENCE DID NOT SHOW THAT
THE POLICY OF THE PETITIONER WAS OTHERWISE, OR THAT A WITHDRAWAL MADE AT
ANY TIME WAS IN ANY WAY RESTRICTED. THE ADMINISTRATIVE LAW JUDGE
REJECTED THE CONTENTION OF THE INTERVENOR THAT THE STATEMENT WAS
MISLEADING SINCE AN EMPLOYEE CANNOT "AT ANY TIME" REVOKE A PROPERLY
EXECUTED DUES WITHHOLDING AUTHORIZATION. IN THE ADMINISTRATIVE LAW
JUDGE'S VIEW, THIS MISCONSTRUED THE EXPRESS LANGUAGE OF THE PETITIONER'S
STATEMENT. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT
THIS OBJECTION ALSO BE OVERRULED.
UPON REVIEW OF THE 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 ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT THE OBJECTIONS BE
OVERRULED. ACCORDINGLY, HE RETURNED THE CASE TO THE APPROPRIATE
ASSISTANT REGIONAL DIRECTOR FOR FINAL ACTION.
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT POLK, LOUISIANA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-169
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3441
ON APRIL 23, 1974, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS REPORT AND RECOMMENDATION ON OBJECTIONS TO ELECTION IN THE
ABOVE-ENTITLED PROCEEDING, RECOMMENDING THAT THE INTERVENOR'S OBJECTIONS
TO THE ELECTION BE OVERRULED. NO EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION WERE FILED BY THE INTERVENOR.
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, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
/1/ CONCLUSIONS, AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE OBJECTIONS TO THE ELECTION IN THE
ABOVE-ENTITLED PROCEEDING BE, AND THEY HEREBY ARE, OVERRULED AND THAT
THE CASE BE RETURNED TO THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR FOR
FINAL ACTION.
DATED, WASHINGTON, D.C.
JUNE 27, 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
ARMY AND AIR FORCE EXCHANGE SERVICE,
FORT POLK, LOUISIANA
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R5-169
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3441
JOHN W. BOWLIN, ESQUIRE
ASSOCIATE GENERAL COUNSEL
ARMY AND AIR FORCE EXCHANGE SERVICE
HEADQUARTERS AIR FORCE AND EXCHANGE
SERVICE
DALLAS, TEXAS 75222
DALE W. WOODS
CHIEF PERSONNEL
ALAMO EXCHANGE REGION
SAN ANTONIO, TEXAS
MICHAEL RISELLI, ESQUIRE
REGIONAL COUNSEL
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
1341 G STREET, N.W.
WASHINGTON, D.C. 20005
HARRY BREEN
NATIONAL VICE-PRESIDENT
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
1341 G STREET, N.W.
WASHINGTON, D.C. 20005
JIMMIE F. GRIFFITH
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
4347 SOUTH HAMPTON ROAD
DALLAS, TEXAS 75232
ALFONSO GRACIA
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
5911 DWYER ROAD, APARTMENT 28
NEW ORLEANS, LOUISIANA 70126
BEFORE: SALVATORE J. ARRIGO
THIS PROCEEDING, HEARD AT FORT POLK, LOUISIANA ON FEBRUARY 19, 1974,
ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED, (HEREIN CALLED THE
ORDER),
THIS PROCEEDING, HEARD AT FORT POLK, LOUISIANA ON FEBRUARY 19, 1974,
ARISES UNDER EXECUTIVE ORDER 11491, AS AMENDED, (HEREIN CALLED THE
ORDER), PURSUANT TO A NOTICE OF HEARING ON OBJECTIONS ISSUED ON JANUARY
21, 1974, BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT
SERVICES, UNITED STATES DEPARTMENT OF LABOR, KANSAS CITY REGION. AT THE
HEARING ALL PARTIES WERE REPRESENTED AND WERE AFFORDED FULL OPPORTUNITY
TO ADDUCE EVIDENCE, CALL, EXAMINE, AND CROSS EXAMINE WITNESSES AND ARGUE
ORALLY. BRIEFS WERE FILED BY BOTH PETITIONER AND INTERVENOR.
UPON THE ENTIRE RECORD /1/ IN THIS MATTER AND FROM MY OBSERVATION OF
THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING:
A. BACKGROUND
PURSUANT TO AN AGREEMENT FOR CONSENT OR DIRECTED ELECTION APPROVED ON
APRIL 27, 1973, A SECRET BALLOT ELECTION WAS CONDUCTED ON MAY 14, 1973,
IN ACCORDANCE WITH THE PROVISIONS OF THE ORDER AMONG CERTAIN EMPLOYEES
OF ARMY AND AIR FORCE EXCHANGE SERVICE, FORT POLK, LOUISIANA (HEREIN
CALLED THE ACTIVITY). THE RESULTS OF THE ELECTION WERE AS FOLLOWS:
APPROXIMATE NUMBER OF ELIGIBLE VOTERS . . . 334
VOID BALLOTS . . . 3
VOTES CAST FOR NAGE, LOCAL R5-169 . . . 89
VOTES CAST FOR AFGE, AFL-CIO, LOCAL 3441 . . . 67
VOTES CAST AGAINST EXCLUSIVE RECOGNITION . . . 10
VALID VOTES COUNTED . . . 166
CHALLENGED BALLOTS . . . 0
VALID VOTES COUNTED PLUS CHALLENGED BALLOTS . . . 166
THEREAFTER ON MAY 21, 1973, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3441 (HEREIN CALLED AFGE OR INTERVENOR) FILED
TIMELY OBJECTIONS TO THE ELECTION ALLEGING THAT NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R5-169 (HEREIN CALLED NAGE OR PETITIONER)
ENGAGED IN CONDUCT WHICH IMPROPERLY AFFECTED THE RESULTS OF THE
ELECTION. THE OBJECTIONS WERE INVESTIGATED AND SUBSEQUENTLY THE
ASSISTANT REGIONAL DIRECTOR ISSUED THE INSTANT NOTICE OF HEARING HAVING
FOUND THAT TWO OF THE OBJECTIONS RAISED "RELEVANT ISSUES OF FACT WHICH
MAY HAVE AFFECTED THE RESULTS OF THE ELECTION, AND SUBSTANTIAL QUESTIONS
OF POLICY EXIST..." /2/
INTERVENOR'S OBJECTIONS WHICH ARE THE SUBJECT MATTER OF THIS
PROCEEDING ARE BASED UPON TWO HANDBILLS DISTRIBUTED BY PETITIONER. THE
FIRST OBJECTION STATES:
"ON MAY 12TH, 1973, THE ASSOCIATION (NAGE) DISTRIBUTED UNIDENTIFIED
HANDBILLS (EXHIBIT NO. 1). REFUSED TO GIVE ONE TO THE UNION (AFGE). ON
MAY 13TH, 1973, A NATIONAL REPRESENTATIVE (FOR THE UNION) (AFGE) FOUND A
HANDBILL (EXHIBIT NO. 1) AT THE ENTRANCE OF THE MAIN PX, SOUTH FORT;
CONTENTS OF THIS HANDBILL WAS (SIC) INSULTING AND DEGRADING TO THE UNION
(AFGE) AND UNFOUNDED. PARAGRAPH MARKED "A" WAS CHANGED TO READ, "TO BE
EFFECTIVE 1ST JUNE." PARAGRAPH MARKED "B" STATES, "ENDORSED BY AFGE,
AFL-CIO." ALL ENTRIES MADE WERE DAMAGING, UNFOUNDED AND POINTED OUT BY
THE NATIONAL OFFICERS AND NATIONAL REPRESENTATIVE THAT AFGE SPONSORED
THIS ACTION. AT THE LATE HOUR THAT THE UNION RECEIVED THIS HANDBILL,
THERE WAS NOT SUFFICIENT TIME TO CLARIFY THE UNFOUNDED ACCUSATIONS." /3/
THE ASSISTANT REGIONAL DIRECTOR FOUND THAT:
" . . . THIS OBJECTION RAISES A RELEVANT QUESTION OF FACT AS TO THE
DATES THE REFERENCED HANDBILL WAS DISTRIBUTED AND THE ABILITY OF THE
AFGE TO COUNTER THE HANDBILL. IN ADDITION, BASED ON THE CONTENT OF THE
HANDBILL, A SUBSTANTIAL QUESTION EXISTS AS TO THE AFFECT THIS PIECE OF
LITERATURE MAY HAVE HAD ON THE FREE CHOICE OF VOTERS."
INTERVENOR'S SECOND OBJECTION STATES AS FOLLOWS:
"EXHIBIT NO. 2 AN UNIDENTIFIED HANDBILL THAT WAS GIVEN TO EMPLOYEES
BY THE NATIONAL OFFICERS, NATIONAL REPRESENTATIVE AND DISTRIBUTED TO
ELIGIBLE (SIC) VOTERS MAY 11TH, 1973, WAS MISLEADING AND UNFOUNDED,
THEREFORE CONTRADICTORY TO THE FEDERAL PERSONNEL MANUAL AND THE
EXECUTIVE ORDER 11491 AS AMENDED, SECTION 21." /4/
WITH REGARD TO THIS OBJECTION, THE ASSISTANT REGIONAL DIRECTOR
CONCLUDED THAT:
" . . . THIS OBJECTION RAISES A RELEVANT QUESTION OF FACT AS TO THE
DUES STRUCTURE OF NAGE AT THE TIME THE HANDBILL WAS DISTRIBUTED AND THE
DATE OF DISTRIBUTION. IN ADDITION, A SUBSTANTIAL QUESTION EXISTS AS TO
THE AFFECT ON THE FREE CHOICE OF VOTERS AND THE ABILITY OF THE AFGE TO
COUNTER THE HANDBILL."
FURTHER, INTERVENOR CONTENDS IN ITS BRIEF THAT THE MATERIAL CONTAINED
IN THE NAGE HANDBILLS (APPENDIX A AND B) CONTAINED "INSULTING,
MISLEADING, DAMAGING AND UNFOUNDED STATEMENTS . . . " AND " . . . IT DID
NOT HAVE AMPLE OPPORTUNITY NOR THE DEVICES TO REBUT OR REFUTE THE
CONTENTS . . . " OF THE HANDBILLS.
B. THE ALLEGED OBJECTIONABLE CONDUCT
1. THE "RETIREE" HANDBILL (APPENDIX A)
THE TEXT OF THE "RETIREE" HANDBILL IS A REPRINT OF AN ARTICLE WHICH
APPEARED IN THE APRIL 1972 ISSUE OF NAVAL AFFAIRS, A MONTHLY PUBLICATION
OF THE FLEET RESERVE ASSOCIATION. ACCORDING TO THE DOCUMENT, IT IS
PUBLISHED FOR "PERSONNEL OF THE NAVY, MARINE CORPS AND COAST GUARD,
ACTIVE, FLEET RESERVE AND RETIRED." THE NOTATIONS "AFL-CIO" AND OTHER
MARGINAL COMMENTS, ARROWS AND ENCIRCLEMENTS ON THE "RETIREE" HANDBILL
WERE, PRIOR TO DISTRIBUTION, SUPPLIED BY HARRY BREEN, NATIONAL
VICE-PRESIDENT, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES. MR.
BREEN ACTIVELY PARTICIPATED IN THE ELECTION CAMPAIGN AT FORT POLK.
MRS. JIMMIE F. GRIFFITH, NATIONAL REPRESENTATIVE OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, WAS INTERVENOR'S ONLY
WITNESS TO TESTIFY IN THIS PROCEEDING. MRS. GRIFFITH, ACTIVELY
PARTICIPATED IN THE ELECTION CAMPAIGN ON BEHALF OF INTERVENOR FOR
APPROXIMATELY THREE TO FOUR WEEKS PRIOR TO THE ELECTION. MRS. GRIFFITH
TESTIFIED THAT THE FIRST TIME SHE SAW THE "RETIREE" HANDBILL WAS ON MAY
13, 1973, THE DAY BEFORE THE ELECTION. SHE TESTIFIED, AND INTERVENOR
CONTENDS, THAT INTERVENOR WAS NOT AWARE OF ITS EXISTENCE UNTIL MAY 12.
ON THAT DAY MRS. GRIFFITH MET WITH A GROUP OF ABOUT 10 UNIT EMPLOYEES
WHO EXPRESSED CONCERN OVER LOSING PRIVILEGE IF THEY VOTED FOR NAGE. AT
THE TIME, MRS. GRIFFITH WAS PERPLEXED OVER THE EMPLOYEES CONCERN SINCE
SHE DID NOT KNOW OF THE EXISTENCE OF THE "RETIREE" HANDBILL BUT FURTHER
DISCUSSION OF THE MATTER WAS ABORTED FOR REASONS NOT MATERIAL HERETO.
MRS. GRIFFITH ALSO TESTIFIED THAT TWO OR THREE DAYS PRIOR TO THE MEETING
OF MAY 12, ABOVE, A RETIREE ASKED HER AND ANOTHER NAGE REPRESENTATIVE
WHY HE SHOULD VOTE FOR NAGE WHEN INTERVENOR WAS TRYING TO TAKE
PRIVILEGES AWAY FROM RETIREES. FURTHER, MRS. GRIFFITH ACKNOWLEDGED THAT
SHE WAS NOT PERSONALLY AWARE OF THE SCOPE OF DISTRIBUTION OF THE
"RETIREE" HANDBILL NOR DID SHE SEEK TO DETERMINE, AFTER THE ELECTION,
WHEN OR HOW MANY EMPLOYEES RECEIVED THE HANDBILL.
WITNESSES ON BEHALF OF PETITIONER TESTIFIED THAT THE "RETIREE"
HANDBILL WAS DISTRIBUTED TO UNIT EMPLOYEES AT VARIOUS TIMES AND AT
VARIOUS LOCATIONS EVERY DAY BETWEEN MAY 6 AND MAY 12, 1973. FURTHER,
HAROLD WAYNE JEAN, A NAGE SUPPORTER WHOSE TESTIMONY I CREDIT /5/
TESTIFIED THAT DURING THIS PERIOD, IN ADDITION TO DISTRIBUTION THE
HANDBILL TO EMPLOYEES HE POSTED THIS HANDBILL ON FOUR SEPARATE BULLETIN
BOARDS AT THE ACTIVITY.
2. THE "DUES" HANDBILL. (APPENDIX B)
DURING THEIR APRIL 1973 CONVENTION, THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES INCREASED GENERAL MEMBERSHIP DUES FROM 90 CENTS A
WEEK TO $1.25 A WEEK. UPON RECEIVING THIS INFORMATION INTERVENOR ISSUED
TWO CAMPAIGN LEAFLETS /6/ WHICH, AMONG OTHER THINGS MADE NOTE OF THE
DUES INCREASE. /7/ THEREAFTER, ON MAY 9, 10, AND 11 PETITIONER
DISTRIBUTED THE "DUES" HANDBILL TO UNIT EMPLOYEES.
AT THE HEARING INTERVENOR INDICATED THAT IT WAS NOT CONTENDING IT DID
NOT HAVE ADEQUATE TIME TO RESPOND TO THE "DUES" HANDBILL /8/ BUT RATHER
IT WAS CONTENDING THAT THE HANDBILL CONTAINED UNTRUTHS AND WAS
MISLEADING, SPECIFICALLY ATTACKING ITEMS 1, 5, AND 6 IN APPENDIX B. /9/
THE TESTIMONY REVEALS THAT WHILE DUES FOR NAGE MEMBERS WAS INCREASED
IN APRIL 1973, THE
NATIONAL UNION AGREED THAT THE INCREASE WOULD NOT APPLY TO UNITS
WHICH WERE, LIKE FORT POLK,
INVOLVED IN AN ELECTION CAMPAIGN AT THE TIME OF THE DUES INCREASE.
DUES FOR EMPLOYEES IN
THESE UNITS WOULD REMAIN AT THE $.90 A WEEK LEVEL FOR ONE YEAR AFTER
THE ELECTION BEFORE BEING
RAISED SINCE NUMEROUS DUES DEDUCTION FORMS TO SUPPORT THE PETITIONS
FOR ELECTIONS HAD BEEN
SIGNED AT THE $.90 LEVEL. PRIOR TO THE DISTRIBUTION OF THE "DUES"
HANDBILL, UNIT EMPLOYEES
ATTENDING VARIOUS NAGE ELECTION CAMPAIGN MEETINGS WERE NOTIFIED OF
PETITIONER'S DECISION TO
RETAIN DUES AT THE LOWER LEVEL FOR THE ONE YEAR PERIOD.
WITH REGARD TO THE "RETIREE" HANDBILL, I FIND THAT IT WAS PROMULGATED
AND DISTRIBUTED TO UNIT EMPLOYEES ON MAY 6, 1973, AND THEREAFTER AND
SUCH TIMING OF THE HANDBILL'S DISTRIBUTION DID NOT PREVENT INTERVENOR
FROM MAKING AN EFFECTIVE REPLY THERETO. THE FACT THAT A COPY OF THE
HANDBILL DID NOT FIND ITS WAY INTO THE POSSESSION OF AN AFGE
REPRESENTATIVE UNTIL THE DAY BEFORE THE ELECTION IS NOT CONTROLLING
HEREIN. INTERVENOR, EXERCISING REASONABLE DILIGENCE SHOULD HAVE BEEN
TIMELY ALERTED TO THE EXISTENCE OF THE HANDBILL AND THEREUPON OBTAINED A
COPY OF IT. MOREOVER, I FIND NOTHING EITHER IN THE TEXT OF THE HANDBILL
OR THE NOTATIONS THEREON WHICH COULD NOT HAVE BEEN ADEQUATELY REBUTTED,
REFUTED, EXPLAINED OR CLARIFIED BY AFGE IN A TIMELY FASHION IF IT SO
DESIRED. /10/ ACCORDINGLY, I CONCLUDE THAT INTERVENOR'S OBJECTION
RELATIVE TO THE "RETIREES" HANDBILL SHOULD BE OVERRULED. /11/
FURTHER, I DO NOT FIND THAT PETITIONER'S "DUES" HANDBILL IMPROPERLY
AFFECTED THE RESULTS OF THE ELECTION. THE STATEMENT THAT "NAGE DUES ARE
$.90 A WEEK" WAS NOT A MISREPRESENTATION SINCE THE TESTIMONY REVEALS
THAT IT WAS IN FACT WHAT PETITIONER, IN APRIL 1973, DECIDED WOULD BE THE
DUES AT FORT POLK FOR THE FOLLOWING YEAR. IN ADDITION, I CONCLUDE THAT
NAGE'S STATEMENT IN THE HANDBILL THAT "YOU CAN WITHDRAW FROM THE UNION
ANY TIME YOU WANT" WAS NOT A MISLEADING STATEMENT WHICH IMPROPERLY
AFFECTED THE RESULTS OF THE ELECTION. INTERVENOR OFFERED NO EVIDENCE TO
SHOW THAT THIS WAS NOT THE POLICY OF PETITIONER NOR DID IT ALLEGE OR
SHOW THAT SUCH WITHDRAWAL WAS OTHERWISE RESTRICTED. /12/ INTERVENOR
CONTENDS HOWEVER THAT THE STATEMENT WAS MISLEADING SINCE AN EMPLOYEE
CANNOT "AT ANY TIME" REVOKE A PROPERLY EXECUTED DUES WITHHOLDING
AUTHORIZATION. /13/ THIS MISCONSTRUES THE EXPRESS LANGUAGE OF
PETITIONER'S STATEMENT. MOREOVER, THE EXPRESS LANGUAGE OF PETITIONER'S
STATEMENT. MOREOVER, INTERVENOR ITSELF MADE MENTION OF LIMITATIONS OF
REVOCATIONS IN A HANDBILL IT DISTRIBUTED TO EMPLOYEES DURING THE WEEK OF
MAY 6 (PETITIONER EXHIBIT NO. 2). IN THAT LEAFLET AFGE BROUGHT TO THE
EMPLOYEES ATTENTION THAT THE DUES DEDUCTION FORM USED BY NAGE "CLEARLY
STATES" THAT IT CAN ONLY BE CANCELLED TWICE A YEAR. ACCORDINGLY I FIND,
IN ALL THE CIRCUMSTANCES, THAT EMPLOYEES COULD PROPERLY EVALUATE THE
NAGE STATEMENT.
I RECOMMEND THAT INTERVENOR'S OBJECTIONS TO THE ELECTION BE OVERRULED
AND THE CASE BE RETURNED TO THE ASSISTANT REGIONAL DIRECTOR FOR THE
KANSAS CITY REGION FOR FINAL ACTION CONSISTENT HEREWITH.
DATED: APRIL 23, 1974
WASHINGTON, D.C.
/1/ BY LETTER DATED MARCH 26, 1974, PETITIONER INDICATED THAT THE
TRANSCRIPT OF THE HEARING WAS INCORRECT IN CERTAIN RESPECTS. I AGREE
WITH PETITIONER. ACCORDINGLY, THE TRANSCRIPT IS HEREBY AMENDED AS
FOLLOWS:
PAGE 88, LINE 22-- "ERROR" SHOULD READ "ARROW."
PAGE 97, LINE 19-- "LETTER" SHOULD READ "LOCAL."
PAGE 108, LINE 12-- "NAGE" SHOULD READ "AFGE."
PAGE 108, LINE 16-- "AFGE" SHOULD READ "NAGE."
PAGE 176, LINE 22-- "NAGE EXHIBIT 3" SHOULD READ "NAGE EXHIBIT 4."
/2/ THE REGIONAL ADMINISTRATOR DISMISSED OTHER OBJECTIONS FILED BY
INTERVENOR.
/3/ A REPRODUCTION OF THE HANDBILL REFERRED TO IN THIS PARAGRAPH IS
ATTACHED HERETO AND DESIGNATED "APPENDIX A."
/4/ A REPRODUCTION OF THE HANDBILL REFERRED TO IN THIS PARAGRAPH IS
ATTACHED HERETO AND DESIGNATED "APPENDIX B."
/5/ ANOTHER EMPLOYEE, EDDIE GARRIS, TESTIFIED ON BEHALF OF NAGE IN
THIS PROCEEDING. I DO NOT FIND HIM TO BE A CREDIBLE WITNESS AND
ACCORDINGLY DO NOT RELY ON ANY PORTION OF HIS TESTIMONY IN REACHING MY
FINDINGS HEREIN.
/6/ PETITIONER EXHIBIT NOS. 1 AND 2.
/7/ INTERVENOR'S DUES WERE THEN $1.25 A PAY PERIOD (2 WEEKS).
/8/ IN ITS BRIEF INTERVENOR APPARENTLY SEEKS TO AGAIN RAISE THIS AS
AN ISSUE.
/9/ NO SPECIFIC ALLEGATION OR EVIDENCE WAS SUBMITTED RELATIVE TO THE
OTHER ITEMS ENCOMPASSED BY THE HANDBILL.
/10/ IN VIEW OF THE DISPOSITION HEREIN IT IS UNNECESSARY TO EVALUATE
WHAT EFFECT, IF ANY, THIS HANDBILL MIGHT HAVE HAD ON EMPLOYEES ABILITY
TO VOTE INTELLIGENTLY IN THE ELECTION.
/11/ NON-APPROPRIATED FUND ACTIVITIES, XVIII AIRBORNE CORPS AND FORT
BRAGG, FORT BRAGG, NORTH CAROLINA, A/SLMR NO. 284, AND CASES CITED
THEREIN.
/12/ CF. GRAPHIC ARTS INTERNATIONAL UNION, LOCAL 4 B, A/SLMR NO. 359
AND LOCAL 1858, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, (REDSTONE
ARSENAL, ALABAMA), A/SLMR NO. 275.
/13/ SECTION 21 OF THE ORDER PROVIDES:
"ALLOTMENT OF DUES. (A) WHEN A LABOR ORGANIZATION HOLDS EXCLUSIVE
RECOGNITION, AND THE AGENCY AND THE ORGANIZATION AGREE IN WRITING TO
THIS COURSE OF ACTION, AN AGENCY MAY DEDUCT THE REGULAR AND PERIODIC
DUES OF THE ORGANIZATION FROM PAY OF MEMBERS OF THE ORGANIZATION IN THE
UNIT OF RECOGNITION WHO MAKE A VOLUNTARY ALLOTMENT FOR THAT PURPOSE.
SUCH AN ALLOTMENT IS SUBJECT TO THE REGULATI4NS OF THE CIVIL SERVICE
COMMISSION, WHICH SHALL INCLUDE PROVISIONS FOR THE EMPLOYEE TO REVOKE
HIS AUTHORIZATION AT STATED SIX-MONTH INTERVALS. SUCH AN ALLOTMENT
TERMINATES WHEN--
(1) THE DUES WITHHOLDING AGREEMENT BETWEEN THE AGENCY AND THE LABOR
ORGANIZATION IS
TERMINATED OR CEASES TO BE APPLICABLE TO THE EMPLOYEE; OR
(2) THE EMPLOYEE HAS BEEN SUSPENDED OR EXPELLED FROM THE LABOR
ORGANIZATION."
"APPENDIX A" (NEWS PAPER COPY OMITTED)
"APPENDIX B"
THE TRUTH IS:
1. NAGE DUES ARE $.90 A WEEK ($1.90 EA. PAY DAY)
2. NO ONE HAS TO BECOME A UNION MEMBER
3. MEMBERSHIP IS VOLUNTARY
4. NO EXTRA FEES, FINES OR ASSESSMENTS
5. YOU CAN WITHDRAW FROM THE UNION ANY TIME YOU WANT
6. NAGE DUES, ARE 90 CENTS PER WEEK
4 A/SLMR 406; P. 440; CASE NO. 61-2171(CA); JUNE 25, 1974.
DEPARTMENT OF DEFENSE,
ARMY MATERIEL COMMAND,
TOOELE ARMY DEPOT,
TOOELE, UTAH
A/SLMR NO. 406
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL
862 (NFFE), WHICH ALLEGED THAT THE ARMY MATERIEL COMMAND (AMC) VIOLATED
SECTION 19(A)(1), (5) AND (B) OF THE ORDER BY ISSUING A MEMORANDUM TO
THE TOOELE ARMY DEPOT (TOOELE) STATING THAT MR. J. HUNT, A GUARD, MUST
BE REPLACED AS THE PRESIDENT OF THE NFFE BECAUSE OF THE APPARENT
CONFLICT OF INTEREST INVOLVED WHERE A GUARD SERVES AS AN OFFICIAL OF A
LABOR ORGANIZATION WHICH ADMITS TO MEMBERSHIP EMPLOYEES OTHER THAN
GUARDS. THE COMPLAINT ALSO ALLEGED THAT TOOELE COMMITTED AN ADDITIONAL
VIOLATION BY REFUSING, IN ACCORDANCE WITH THE AMC MEMORANDUM, TO CONSULT
WITH HUNT AS THE APPROPRIATE REPRESENTATIVE OF THE NFFE. THE CASE WAS
TRANSFERRED TO THE ASSISTANT SECRETARY PURSUANT TO SECTION 206.5(A) OF
THE ASSISTANT SECRETARY'S REGULATIONS AFTER THE PARTIES HAD SUBMITTED A
STIPULATION OF THE FACTS AND EXHIBITS TO THE ASSISTANT REGIONAL DIRECTOR
FOR LABOR-MANAGEMENT SERVICES.
THE ASSISTANT SECRETARY FOUND UNDER THE CIRCUMSTANCES THERE WAS NO
VIOLATION OF THE ORDER. IN THIS REGARD, HE NOTED THAT IN VETERANS
ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS, A/SLMR NO. 21, IT WAS
HELD THAT IT WAS INCONSISTENT WITH THE INTENT OF SECTIONS 1(B), 10(B)(3)
AND 10(C) OF THE ORDER FOR A GUARD TO SERVE AS THE PRESIDENT OF A
NONGUARD LABOR ORGANIZATION. IN THE ASSISTANT SECRETARY'S VIEW, THESE
CONSIDERATIONS WERE APPLICABLE TO THE INSTANT CASE WHEREIN THE NONGUARD
LABOR ORGANIZATION: (1) REPRESENTS A UNIT OF GUARDS; AND (2)
REPRESENTS TWO UNITS OF NONGUARDS AT TOOELE, ALL OF WHICH WERE IN
EXISTENCE PRIOR TO THE EFFECTIVE DATE OF EXECUTIVE ORDER 11491. HE
CONCLUDED THAT, IN THIS CONTEXT, FOR A GUARD TO PARTICIPATE IN THE
MANAGEMENT OF SUCH A LABOR ORGANIZATION WOULD GIVE RISE TO A CONFLICT OR
APPARENT CONFLICT OF INTEREST AND WOULD BE INCOMPATIBLE WITH THE
OFFICIAL DUTIES OF THE EMPLOYEE WITHIN THE MEANING OF SECTION 1(B) OF
THE ORDER. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE
INSTANT COMPLAINT BE DISMISSED IN ITS ENTIRETY.
DEPARTMENT OF DEFENSE,
ARMY MATERIEL COMMAND,
TOOELE ARMY DEPOT,
TOOELE, UTAH
AND
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, IND.,
LOCAL 862
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES CULLEN P. KEOUGH'S 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 THE FACTS, ACCOMPANYING EXHIBITS,
AND A BRIEF FILED BY THE COMPLAINANT, /1/ THE ASSISTANT SECRETARY FINDS:
THE INSTANT COMPLAINT ALLEGES THAT THE ARMY MATERIEL COMMAND,
HEREINAFTER CALLED AMC, VIOLATED SECTIONS 19(A)(1), (5) AND (6) OF THE
ORDER BY ISSUING A MEMORANDUM TO THE TOOELE ARMY DEPOT, HEREINAFTER
CALLED TOOELE, STATING THAT MR. J. HUNT, A GUARD, MUST BE REPLACED AS
THE PRESIDENT OF THE COMPLAINANT, THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 862, HEREINAFTER CALLED NFFE, BECAUSE OF THE
APPARENT CONFLICT OF INTEREST INVOLVED WHERE A GUARD SERVES AS AN
OFFICIAL OF A LABOR ORGANIZATION WHICH ADMITS TO MEMBERSHIP EMPLOYEES
OTHER THAN GUARDS. THE COMPLAINT ALLEGES THAT TOOELE COMMITTED AN
ADDITIONAL VIOLATION OF THE ORDER BY REFUSING, IN ACCORDANCE WITH THE
ABOVE NOTED AMC MEMORANDUM, TO CONSULT WITH HUNT AS THE APPROPRIATE
REPRESENTATIVE OF THE NFFE. /2/ IT WAS STIPULATED, IN THIS LATTER
REGARD, THAT ON JANUARY 25, 1972, HUNT WAS INFORMED BY TOOELE OF THE
CONTENT OF THE JANUARY 18, 1972, AMC MEMORANDUM, AND THAT, SINCE JANUARY
25, 1972, IT HAS REFUSED TO RECOGNIZE HUNT AS THE PRESIDENT OF NFFE
LOCAL 862.
UNDER EXECUTIVE ORDER 10988 THE COMPLAINANT WAS GRANTED EXCLUSIVE
RECOGNITION AS THE REPRESENTATIVE OF THE EMPLOYEES IN THREE SEPARATE
UNITS AT TOOELE: (1) ALL GUARDS OF THE SECURITY DIVISION, DIRECTORATE
OF ADMINISTRATION (OCTOBER 7, 1965); (2) ALL FIREFIGHTERS OF THE FIRE
PROTECTION AND PREVENTION BRANCH, FACILITIES DIVISION, DIRECTORATE FOR
SERVICES (NOVEMBER 21, 1966); AND (3) ALL GENERAL SCHEDULE (GS)
EMPLOYEES IN THE PROCUREMENT DIVISION, DIRECTORATE FOR SERVICES
(NOVEMBER 21, 1966). SOMETIME IN THE FALL OF 1971, THE PRESIDENT OF
NFFE LOCAL 862 RETIRED AND J. HUNT, A GUARD, WAS SELECTED TO FILL THE
UNEXPIRED TERM WHICH ENDED JANUARY 20, 1972. AT THAT TIME, TOOELE
MANAGEMENT INDICATED ITS VIEW THAT THERE WAS AN APPARENT CONFLICT OF
INTEREST IN HAVING A GUARD SERVE AS THE PRESIDENT OF A LABOR
ORGANIZATION WHICH REPRESENTED GUARDS AND NONGUARDS, BUT IT AGREED TO
LET HUNT SERVE OUT THE UNEXPIRED TERM.
IN RESPONSE TO AN INQUIRY FROM TOOELE, THE AMC ISSUED A MEMORANDUM
DATED JANUARY 18, 1972, WHICH CONCLUDED THAT "AN APPARENT CONFLICT OF
INTEREST EXISTS WHEN A GUARD BECOMES AN OFFICIAL OF A LABOR ORGANIZATION
WHICH ADMITS TO ITS MEMBERSHIP EMPLOYEES OTHER THAN GUARDS,...(AND)
ACCORDINGLY,...(HUNT) MUST BE REPLACED AS THE PRESIDENT OF THE (NFFE)."
ON OR ABOUT JANUARY 20, 1972, HUNT WAS ELECTED PRESIDENT OF NFFE LOCAL
862 AND ON JANUARY 25, 1972, HE WAS INFORMED BY TOOELE OF THE CONTENTS
OF THE JANUARY 18, 1972, AMC MEMORANDUM. AS NOTED ABOVE, IN COMPLIANCE
WITH THAT MEMORANDUM, TOOELE REFUSED, AND HAS CONTINUED FROM THAT DATE
TO REFUSE, TO RECOGNIZE HUNT AS THE PRESIDENT OF NFFE LOCAL 862. ON
JULY 24, 1972, THE PARTIES SIGNED A MULTI-UNIT NEGOTIATED AGREEMENT, BUT
HUNT WAS NOT INVOLVED IN THE NEGOTIATIONS LEADING TO EXECUTION OF SUCH
AGREEMENT.
THE NFFE MAINTAINS THAT THE JANUARY 18, 1972, MEMORANDUM ISSUED BY
THE AMC DOES NOT JUSTIFY THE REMOVAL OF HUNT FROM HIS POSITION OF
LEADERSHIP AS THE NFFE IS THE EXCLUSIVE REPRESENTATIVE FOR UNITS OF BOTH
GUARDS AND NONGUARDS AT TOOELE AND HAS BEEN RECOGNIZED AS SUCH SINCE
EXECUTIVE ORDER 10988. AS THE GUARD UNIT "WAS AND REMAINS PART OF" THE
NFFE, AND AS EXECUTIVE ORDER 11491 ALLOWS THOSE UNITS OF REPRESENTATION
WHICH CONTAIN BOTH GUARDS AND NONGUARDS WHICH WERE RECOGNIZED UNDER
EXECUTIVE ORDER 10988 TO CONTINUE AS THEY WERE, THE NFFE CONTENDS THAT
IF GUARDS ARE TO BENEFIT FROM THEIR FULL RIGHTS GRANTED UNDER THE ORDER
THEY MUST OF NECESSITY BE ALLOWED TO PARTICIPATE IN THE MANAGEMENT OF
THOSE LABOR ORGANIZATIONS WHICH REPRESENT BOTH GUARDS AND NONGUARDS.
THE AMC, ON THE OTHER HAND, CONTENDS THAT THE PARTICIPATION BY A
GUARD IN THE MANAGEMENT OF A LABOR ORGANIZATION WHICH REPRESENTS BOTH
GUARDS AND NONGUARDS CONSTITUTES A CONFLICT OF INTEREST WITHIN THE
MEANING OF SECTION 1(B) OF THE ORDER, AND THAT TOOELE THEREFORE WOULD BE
VIOLATING THE ORDER WERE IT TO RECOGNIZE HUNT.
ALL OF THE FACTS AND POSITIONS SET FORTH ABOVE ARE DERIVED FROM THE
PARTIES' STIPULATION OF FACTS AND ACCOMPANYING EXHIBITS AND THE NFFE'S
BRIEF.
IN VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS, A/SLMR
NO. 21, THE ASSISTANT SECRETARY HELD THAT IT WAS INCONSISTENT WITH THE
INTENT OF SECTIONS 1(B), 10(B)(3) AND 10(C) OF THE ORDER FOR A GUARD TO
SERVE AS THE PRESIDENT OF A NONGUARD LABOR ORGANIZATION AND, IN THIS
CAPACITY, CO-SIGN A PETITION. IN THIS CONNECTION, IT WAS STATED THAT:
"...TO EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER, GUARDS SHOULD
NOT BE PERMITTED TO PARTICIPATE IN THE MANAGEMENT OF NONGUARD LABOR
ORGANIZATIONS. SUCH PARTICIPATION, IN MY VIEW, 'RESULT(S) IN A CONFLICT
OR APPARENT CONFLICT OF INTEREST...' AND IS ALSO '...INCOMPATIBLE
WITH...THE OFFICIAL DUTIES OF THE EMPLOYEE.'" UNDER THE CIRCUMSTANCES
HEREIN, I FIND THAT THE ABOVE NOTED CONSIDERATIONS ARE APPLICABLE TO THE
INSTANT CASE, WHERE THE NONGUARD LABOR ORGANIZATION INVOLVED: (1)
REPRESENTS A UNIT OF GUARDS BY VIRTUE OF THE FACT THAT SUCH
REPRESENTATION WAS IN EXISTENCE PRIOR TO THE EFFECTIVE DATE OF EXECUTIVE
ORDER 11491; AND (2) REPRESENTS ALSO TWO NONGUARD UNITS AT THE FACILITY
INVOLVED. IN THIS CONTEXT, FOR A GUARD TO PARTICIPATE IN THE MANAGEMENT
OF SUCH A LABOR ORGANIZATION GIVES RISE TO A CONFLICT OR APPARENT
CONFLICT OF INTEREST AND IS INCOMPATIBLE WITH THE OFFICIAL DUTIES OF THE
EMPLOYEE WITHIN THE MEANING OF SECTION 1(B) OF THE ORDER. ACCORDINGLY,
I FIND THAT THE CONDUCT OF THE AMC AND OF TOOELE WAS NOT VIOLATIVE OF
THE ORDER. THEREFORE, I SHALL ORDER THAT THE INSTANT COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 61-2171(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 25, 1974
/1/ THE RESPONDENT SUBMITTED AN UNTIMELY BRIEF WHICH WAS NOT
CONSIDERED.
/2/ THE ASSISTANT REGIONAL DIRECTOR DISMISSED THAT PORTION OF THE
COMPLAINT WHICH ALLEGED A VIOLATION OF SECTION 19(A)(5). NO REQUEST FOR
REVIEW OF THIS ACTION WAS SUBMITTED.
4 A/SLMR 405; P. 437; CASE NOS. 22-5041(RO), 22-5063(RO); JUNE 24,
1974.
FEDERAL AVIATION ADMINISTRATION,
NATIONAL CAPITAL AIRPORTS
A/SLMR NO. 405
THE PETITIONER, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL
F-91, AFL-CIO (IAFF), AND THE INCUMBENT INTERVENOR, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL 1709 (NFFE), SOUGHT TO REPRESENT A UNIT OF
FIREFIGHTERS, INCLUDING THOSE CLASSIFIED AS CREW CHIEFS (LIEUTENANTS),
TRAINING OFFICERS AND FIRE INSPECTORS, AT THE WASHINGTON NATIONAL AND
DULLES INTERNATIONAL AIRPORTS LOCATED IN VIRGINIA. THE ACTIVITY, IN
OPPOSITION TO THE IAFF AND THE NFFE, SOUGHT TO EXCLUDE CREW CHIEFS,
TRAINING OFFICERS AND FIRE INSPECTORS AS SUPERVISORS.
THE FACTS INVOLVED IN THIS CASE HAD BEEN BROUGHT BEFORE THE ASSISTANT
SECRETARY PREVIOUSLY IN FEDERAL AVIATION ADMINISTRATION, BUREAU OF
NATIONAL CAPITAL AIRPORTS, A/SLMR NO. 91, INVOLVING THE SAME PARTIES.
IN THAT CASE, THE ASSISTANT SECRETARY FOUND THAT THE CREW CHIEFS,
TRAINING OFFICERS AND FIRE INSPECTORS WERE NOT SUPERVISORS. IN THE
INSTANT CASE, THE PARTIES STIPULATED THAT THE TRANSCRIPT AND EXHIBITS IN
THE PRIOR CASE WOULD CONSTITUTE THE BASIS FOR THE RESOLUTION OF THE
ALLEGED SUPERVISORY STATUS OF THE THREE EMPLOYEE CATEGORIES IN QUESTION.
THE ACTIVITY CONTENDED, IN ESSENCE, THAT WHILE THE FACTS AS TO THE
SUPERVISORY FUNCTIONS OF THE EMPLOYEES IN QUESTION HAD NOT CHANGED SINCE
THE TIME OF THE HEARING IN THE PREVIOUS CASE, SEVERAL SUBSEQUENT
DECISIONS OF THE ASSISTANT SECRETARY AND THE FEDERAL LABOR RELATIONS
COUNCIL WOULD JUSTIFY A DIFFERENT CONCLUSION THAN THAT REACHED BY THE
ASSISTANT SECRETARY IN THE PRIOR PROCEEDING.
THE ASSISTANT SECRETARY REAFFIRMED HIS FINDING IN A/SLMR NO. 91, AND
CONCLUDED THAT THE CREW CHIEFS WERE NOT SUPERVISORS WITHIN THE MEANING
OF THE ORDER. IN THIS REGARD, HE NOTED THAT CREW CHIEFS SPEND A
SUBSTANTIAL PORTION OF THEIR WORK TIME PERFORMING DUTIES IDENTICAL TO
THOSE PERFORMED BY OTHER NONSUPERVISORY FIREFIGHTERS; HAVE NO AUTHORITY
TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE OR DISCHARGE
EMPLOYEES; AND DO NOT ASSIGN WORK ON OTHER THAN A ROUTINE BASIS.
MOREOVER, HE NOTED THAT, WHILE SOME CREW CHIEFS HAVE EVALUATION
FUNCTIONS, THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT SUCH
EVALUATIONS WERE EFFECTIVE.
THE ASSISTANT SECRETARY ALSO CONCLUDED THAT TRAINING OFFICERS AND
FIRE INSPECTORS WERE NOT SUPERVISORS WITHIN THE MEANING OF THE ORDER AND
SHARED A SUFFICIENT COMMUNITY OF INTEREST WITH THE OTHER FIREFIGHTERS TO
WARRANT THEIR INCLUSION IN THE UNIT SOUGHT.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY DIRECTED THAT AN
ELECTION BE HELD IN A UNIT OF ALL FIREFIGHTERS, INCLUDING EMPLOYEES
CLASSIFIED AS CREW CHIEFS (LIEUTENANTS), TRAINING OFFICERS AND FIRE
INSPECTORS.
FEDERAL AVIATION ADMINISTRATION,
NATIONAL CAPITAL AIRPORTS
AND
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL F-91, AFL-CIO
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1709
FEDERAL AVIATION ADMINISTRATION,
DULLES INTERNATIONAL AIRPORT
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1709
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
MADELINE E. JACKSON. 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, INCLUDING THE PARTIES' BRIEFS
AND, AS DISCUSSED BELOW, THE TRANSCRIPT AND EXHIBITS IN CASE NO.
22-1981, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 22-5041(RO), THE INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS, LOCAL F-91, AFL-CIO, HEREIN CALLED IAFF, SEEKS AN ELECTION IN
A UNIT OF ALL FIREFIGHTERS, INCLUDING CREW CHIEFS (LIEUTENANTS),
TRAINING OFFICERS (CAPTAINS) AND FIRE INSPECTORS (CAPTAINS) AT THE
WASHINGTON NATIONAL AND DULLES INTERNATIONAL AIRPORTS. THE INTERVENOR,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1709, HEREIN CALLED
NFFE, AGREES THAT THE CLAIMED UNIT IS APPROPRIATE. /1/
CONTRARY TO THE IAFF AND THE NFFE, THE ACTIVITY CONTENDS THAT
EMPLOYEES CLASSIFIED AS CREW CHIEFS, TRAINING OFFICERS AND FIRE
INSPECTORS ARE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE
ORDER AND, THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT.
IN 1970 THE NFFE FILED A PETITION IN CASE NO. 22-1981 FOR A UNIT OF
ALL FIREFIGHTERS AT DULLES AND NATIONAL AIRPORTS, INCLUDING CREW CHIEFS,
TRAINING OFFICERS AND FIRE INSPECTORS. THE IAFF INTERVENED IN THAT
PROCEEDING. AS IN THE INSTANT CASE, THE ACTIVITY CONTENDED THAT THE
CREW CHIEFS, TRAINING OFFICERS AND FIRE INSPECTORS WERE SUPERVISORS AND
SHOULD BE EXCLUDED FROM THE UNIT. A REPRESENTATION HEARING WAS HELD
DURING WHICH TESTIMONY WAS ELICITED CONCERNING THE ALLEGED SUPERVISORY
STATUS OF THE EMPLOYEES IN THE THREE CATEGORIES IN QUESTION. BASED ON
THE RECORD DEVELOPED IN THAT CASE, THE ASSISTANT SECRETARY FOUND IN
FEDERAL AVIATION ADMINISTRATION, BUREAU OF NATIONAL CAPITAL AIRPORTS,
A/SLMR NO. 91, THAT THE CREW CHIEFS, TRAINING OFFICERS AND FIRE
INSPECTORS WERE NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER AND THAT, THEREFORE, THEY SHOULD BE INCLUDED IN THE UNIT OF
FIREFIGHTERS AT NATIONAL AND DULLES AIRPORTS. SUBSEQUENTLY, AN ELECTION
WAS CONDUCTED IN THE APPROPRIATE UNIT AND THE NFFE WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE.
IN THE INSTANT PROCEEDING, THE PARTIES STIPULATED THAT THE TRANSCRIPT
AND EXHIBITS IN THE EARLIER PROCEEDING CONSTITUTED THE BASIS HEREIN FOR
THE RESOLUTION OF THE QUESTION OF THE ALLEGED SUPERVISORY STATUS OF THE
CREW CHIEFS, TRAINING OFFICERS AND FIRE INSPECTORS. ESSENTIALLY, THE
ACTIVITY CONTENDS THAT WHILE THE FACTS AS TO THE SUPERVISORY FUNCTIONS
AND DUTIES OF THE EMPLOYEES IN QUESTION HAVE NOT CHANGED SINCE THE TIME
OF THE HEARING IN THE PREVIOUS CASE, SEVERAL SUBSEQUENT DECISIONS BY THE
ASSISTANT SECRETARY AND THE FEDERAL LABOR RELATIONS COUNCIL, HEREINAFTER
CALLED THE COUNCIL, WOULD JUSTIFY A DIFFERENT CONCLUSION THAN THAT
REACHED BY THE ASSISTANT SECRETARY IN THE PRIOR PROCEEDING. /2/
THE RECORD REVEALS THAT EACH AIRPORT'S FIRE PREVENTION AND FIRE
PROTECTION BRANCH EMPLOYS 1 CHIEF, 2 ASSISTANT CHIEFS, 1 TRAINING
OFFICER, 1 FIRE INSPECTOR, 8 CREW CHIEFS, AND 31 DRIVER-OPERATORS AND
PRIVATES. FURTHER, EACH AIRPORT IS PROVIDED WITH FIRE PROTECTION ON A
24-HOUR BASIS, AND A TYPICAL SHIFT COMPLEMENT AT EACH LOCATION WOULD
CONSIST OF 1 ASSISTANT CHIEF, 4 CREW CHIEFS, 1 TRAINING OFFICER, 1 FIRE
INSPECTOR, AND 13-15 DRIVER-OPERATORS AND PRIVATES. THE RECORD REVEALS
THAT IF THE ASSISTANT CHIEF WERE ABSENT, A CREW CHIEF WOULD ACT AS
ASSISTANT CHIEF. HOWEVER, AN INDIVIDUAL CREW CHIEF WOULD ACT IN THAT
CAPACITY ONLY ONCE EVERY FOUR MONTHS, FOR FOUR OR FIVE DAYS IN THAT
MONTH. THE RECORD DISCLOSES ALSO THAT SOME CREW CHIEFS HAVE OPTED NOT
TO ACT AS ASSISTANT CHIEF. THUS, IT APPEARS THAT ONLY IN ISOLATED
INSTANCES WOULD AN INDIVIDUAL CREW CHIEF BE THE SENIOR OFFICER IN CHARGE
OF A SHIFT. /3/
AS NOTED ABOVE, IN A/SLMR NO. 91 THE ASSISTANT SECRETARY FOUND THAT
THE ACTIVITY'S CREW CHIEFS WERE NOT SUPERVISORS. IN REACHING THIS
CONCLUSION, IT WAS NOTED PARTICULARLY THAT CREW CHIEFS SPEND A
SUBSTANTIAL PORTION OF THEIR WORK TIME PERFORMING DUTIES IDENTICAL TO
THOSE PERFORMED BY OTHER NONSUPERVISORY FIREFIGHTERS, AND THAT THEY HAVE
NO AUTHORITY TO HIRE, TRANSFER, SUSPEND, LAY OFF, RECALL, PROMOTE OR
DISCHARGE EMPLOYEES. WITH RESPECT TO THEIR ABILITY TO MAKE JOB
ASSIGNMENTS, IT WAS NOTED THAT SUCH ASSIGNMENTS ARE MADE ON A ROTATION
BASIS OR ARE SO ROUTINE AS TO REQUIRE NO INDEPENDENT JUDGMENT. THE
ASSISTANT SECRETARY ALSO FOUND THAT WHILE THE CREW CHIEFS ARE ASSIGNED
CERTAIN DUTIES SUCH AS ACTING AS TIMEKEEPER, MAINTENANCE OFFICER, SUPPLY
OFFICER AND PROCUREMENT OFFICER, THE PERFORMANCE OF THESE DUTIES IS
CLERICAL IN NATURE AND DOES NOT REQUIRE THE USE OF INDEPENDENT JUDGMENT.
THE ACTIVITY TAKES THE POSITION THAT THE CREW CHIEFS HAVE THE
AUTHORITY TO EVALUATE EFFECTIVELY DRIVER-OPERATORS AND PRIVATES. THE
RECORD REVEALS, IN THIS REGARD, THAT AT DULLES AIRPORT ALL CREW CHIEFS
ARE RESPONSIBLE FOR PREPARING EMPLOYEE APPRAISAL REPORTS (EAR'S). /4/
FURTHER, ALL RATINGS ARE SUBJECT TO REVIEW BY THE ASSISTANT CHIEF AND
THE CHIEF WHO, BECAUSE OF THE CLOSE INTERACTION REQUIRED BY THE NATURE
OF THE WORK PERFORMED, ARE ABLE TO OBSERVE DIRECTLY THE FIREFIGHTERS IN
THE WORK SITUATION AND, THUS, MAKE AN INDEPENDENT ASSESSMENT OF THEIR
PERFORMANCE.
UNDER THE CIRCUMSTANCES OF THIS CASE, I FIND THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH THE EXISTENCE OF SUPERVISORY AUTHORITY WITH
RESPECT TO THE CREW CHIEFS. THUS, AS NOTED ABOVE, AND AS INDICATED IN
A/SLMR NO. 91, CREW CHIEFS DO NOT HAVE AUTHORITY TO HIRE, TRANSFER,
SUSPEND, LAY OFF, RECALL, PROMOTE OR DISCHARGE EMPLOYEES; THEY SPEND A
SUBSTANTIAL PORTION OF THEIR TIME PERFORMING WORK IDENTICAL TO THAT
PERFORMED BY OTHER NONSUPERVISORY FIREFIGHTERS; AND THEY DO NOT ASSIGN
WORK ON OTHER THAN A ROUTINE BASIS. NOR, IN MY VIEW, DOES THE EVIDENCE
ESTABLISH THAT THE CREW CHIEFS EFFECTIVELY EVALUATE THE PERFORMANCE OF
OTHER EMPLOYEES. AS STATED BY THE COUNCIL IN ITS CHINA LAKE DECISION,
CITED ABOVE, IN DETERMINING THE EFFECTIVENESS OF AN ALLEGED SUPERVISOR'S
RECOMMENDATION, "THE QUESTION IS WHETHER THAT RECOMMENDATION, EVEN
THOUGH REVIEWED AT A HIGHER LEVEL, RESULTS IN THE PROMOTION OR REFUSAL
TO PROMOTE AN EMPLOYEE TO A HIGHER GRADE LEVEL." IN THE INSTANT CASE, I
FIND THAT THE EVIDENCE DOES NOT ESTABLISH THAT THE EAR'S "RESULT IN THE
PROMOTION OR REFUSAL TO PROMOTE AN EMPLOYEE TO A HIGHER GRADE LEVEL," OR
THAT SUCH APPRAISALS, STANDING ALONE, ARE EFFECTIVE FOR ANY OTHER
PURPOSE. ACCORDINGLY, I FIND THAT CREW CHIEFS ARE NOT SUPERVISORS
WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND SHOULD BE INCLUDED
IN ANY UNIT FOUND APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
THE ACTIVITY ALSO CONTENDS THAT 2 TRAINING OFFICERS AND THE 2 FIRE
INSPECTORS SHOULD BE EXCLUDED FROM THE UNIT SOUGHT. THE RECORD REVEALS,
IN THIS REGARD, THAT THE TRAINING OFFICERS ARE RESPONSIBLE FOR
DEVELOPING, DIRECTING AND IMPLEMENTING A TRAINING PROGRAM FOR
FIREFIGHTERS AND THAT SUCH TRAINING CONSISTS OF CLASSROOM INSTRUCTION
AND FIRE DRILLS OCCUPYING SEVERAL HOURS EACH DAY. THE EVIDENCE
ESTABLISHES THAT TRAINING OFFICERS DO NOT EXERCISE ANY SUPERVISORY
AUTHORITY OVER OTHER EMPLOYEES. WHILE THE TRAINING OFFICER AT NATIONAL
AIRPORT DOES EVALUATE EMPLOYEES UPON OCCASION, THE EVIDENCE DOES NOT
ESTABLISH THAT SUCH EVALUATIONS ARE EFFECTIVE. EACH AIRPORT ALSO
EMPLOYS A FIRE INSPECTOR WHO IS RESPONSIBLE FOR THE DETECTION AND
PREVENTION OF FIRE HAZARDS. THE RECORD REVEALS THAT BOTH FIRE
INSPECTORS FUNCTION IN A STAFF CAPACITY AND EXERCISE NO SUPERVISORY
AUTHORITY OVER OTHER FIREFIGHTERS. UNDER THESE CIRCUMSTANCES, I FIND
THAT NEITHER TRAINING OFFICERS NOT FIRE INSPECTORS POSSESS THE INDICIA
OF SUPERVISORY STATUS AS PROVIDED IN SECTION 2(C) OF THE ORDER.
ACCORDINGLY, AND NOTING THAT TRAINING OFFICERS AND FIRE INSPECTORS SHARE
COMMON WORKING CONDITIONS AND HAVE SUBSTANTIAL DAILY CONTACT WITH OTHER
FIREFIGHTERS, I CONCLUDE THAT TRAINING OFFICERS AND FIRE INSPECTORS
SHOULD BE INCLUDED WITHIN THE PETITIONED FOR UNIT.
BASED ON THE FOREGOING, 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 FIREFIGHTERS, INCLUDING CREW CHIEFS (LIEUTENANTS), FIRE
INSPECTORS AND TRAINING
OFFICERS AT THE WASHINGTON NATIONAL AND DULLES INTERNATIONAL
AIRPORTS, VIRGINIA; EXCLUDING
CHIEFS, ASSISTANT FIRE CHIEFS, 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.
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 THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-91, AFL-CIO; OR BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1709; OR BY
NEITHER.
DATED, WASHINGTON, D.C.
JUNE 24, 1974
/1/ IN CASE NO. 22-5063(RO), THE NFFE INITIALLY SOUGHT AN ELECTION IN
A UNIT OF ALL FIREFIGHTERS AT DULLES INTERNATIONAL AIRPORT. HOWEVER, AT
THE HEARING IN THIS MATTER THE NFFE REQUESTED THAT ITS PETITION BE
WITHDRAWN. I AM ADVISED ADMINISTRATIVELY THAT THE NFFE'S WITHDRAWAL
REQUEST WAS APPROVED BY THE ASSISTANT REGIONAL DIRECTOR FOR
LABOR-MANAGEMENT SERVICES ON JANUARY 18, 1974.
/2/ SEE, IN THIS REGARD, DEPARTMENT OF THE NAVY, UNITED STATES NAVAL
WEAPONS CENTER, CHINA LAKE, CALIFORNIA, FLRC NO. 72A-11; DEPARTMENT OF
THE NAVY, MARE ISLAND NAVAL SHIPYARD, FLRC NO. 72A-12; AND ATOMIC
ENERGY COMMISSION, IDAHO OPERATIONS OFFICE, IDAHO FALLS, IDAHO, A/SLMR
NO. 299.
/3/ COMPARE ATOMIC ENERGY COMMISSION, IDAHO OPERATIONS OFFICE, IDAHO
FALLS, IDAHO, CITED ABOVE, WHERE LIEUTENANTS WERE FOUND TO BE
SUPERVISORS. IN THAT CASE, 6 OF THE 7 LIEUTENANTS WERE STATIONED AT
FACILITIES WHERE THERE WERE NO OFFICERS OF HIGHER RANK THAN LIEUTENANT.
/4/ THE EAR'S AT NATIONAL AIRPORT WHICH ARE NOT PREPARED BY THE CREW
CHIEFS ARE PREPARED BY AN ASSISTANT CHIEF OR THE TRAINING OFFICER.
4 A/SLMR 404; P. 429; CASE NO. 62-3666(CA); JUNE 24, 1974.
GENERAL SERVICES ADMINISTRATION,
REGION 6, PUBLIC BUILDINGS SERVICE,
KANSAS CITY, MISSOURI
A/SLMR NO. 404
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY ISAIAH
MITCHELL AND CHARLES F. BROOKS, JR. (COMPLAINANTS) AGAINST THE GENERAL
SERVICES ADMINISTRATION, REGION 6, PUBLIC BUILDINGS SERVICE, KANSAS
CITY, MISSOURI (RESPONDENT) ALLEGING THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER. SPECIFICALLY, THE COMPLAINANTS
ALLEGED THAT THE RESPONDENT REFUSED TO MEET WITH BROOKS, WHO WAS THE
SHOP STEWARD OR REPRESENTATIVE OF CERTAIN OF THE RESPONDENT'S EMPLOYEES
EXCLUSIVELY REPRESENTED BY THE AMERICAN POSTAL WORKERS UNION, LOCAL 308;
AND REFUSED TO ALLOW BROOKS TO HAVE UNION REPRESENTATION WHEN TWO OF
THE RESPONDENT'S SUPERVISORS ATTEMPTED TO SERVE TWO NOTICES OF
INFRACTION UPON BROOKS. THE RESPONDENT CONTENDED THAT THE COMPLAINT
LACKED MERIT AND, FURTHER, THAT DISMISSAL WAS WARRANTED BECAUSE
MITCHELL, WHO WAS NOT AN EMPLOYEE OF THE RESPONDENT AND WAS A STEWARD OF
ANOTHER LABOR ORGANIZATION, HAD NO STANDING TO FILE THE COMPLAINT IN THE
INSTANT PROCEEDING.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT UNDER THE CIRCUMSTANCES
MITCHELL HAS STANDING TO FILE THE COMPLAINT IN THIS MATTER. WITH
RESPECT TO THE MERITS, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
RESPONDENT HAD NOT REFUSED TO MEET WITH BROOKS BUT, RATHER, WAS
UNWILLING TO INTERRUPT ITS OPERATIONS IN ORDER TO MEET WITH BROOKS AND
THE ENTIRE CREW OF THE NIGHT SHIFT. THE ADMINISTRATIVE LAW JUDGE NOTED
THAT THE ACTIVITY HAD DEMONSTRATED ITS WILLINGNESS TO BARGAIN IN GOOD
FAITH BY SHORTLY THEREAFTER ARRANGING A MEETING WITH THE EXCLUSIVE
REPRESENTATIVE'S LOCAL PRESIDENT AND SEVERAL OTHER EMPLOYEES. HE
FURTHER FOUND, BASED UPON HIS CREDIBILITY RESOLUTIONS, THAT THE
RESPONDENT HAD NOT DENIED BROOKS UNION REPRESENTATION WHEN THE TWO
SUPERVISORS ATTEMPTED TO GIVE BROOKS TWO NOTICES OF INFRACTION.
NOTING THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY ADOPTED
THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE.
GENERAL SERVICES ADMINISTRATION,
REGION 6, PUBLIC BUILDINGS SERVICE,
KANSAS CITY, MISSOURI
AND
ISAIAH MITCHELL AND
CHARLES F. BROOKS, JR.
ON APRIL 4, 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 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 PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY
ADOPT THE FINDINGS, /1/ CONCLUSIONS AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-3666(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 24, 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.
/2/ BY RULING ON MOTION FOR INTERVENTION, DISCUSSED INFRA, CAPTION
WAS AMENDED TO NAME CHARLES F. BROOKS, JR., AS CO-COMPLAINANT. THE TWO
CO-COMPLAINANTS ARE REFERRED TO INFRA, SOMETIMES INDIVIDUALLY BY NAME,
AND AT OTHER TIMES JOINTLY AS COMPLAINANTS.
IN THE MATTER OF
GENERAL SERVICES ADMINISTRATION,
REGION 6, PUBLIC BUILDING SERVICES,
KANSAS CITY, MISSOURI
ISAIAH MITCHELL AND
CHARLES F. BROOKS, JR.
JAMES L. KEALING, ESQ., REGIONAL COUNSEL
GENERAL SERVICES ADMINISTRATION
1500 EAST BANNISTER ROAD
KANSAS CITY, MISSOURI 64131
RICHARD L. OSBOURN, ESQ.
GENERAL SERVICES ADMINISTRATION
1500 EAST BANNISTER ROAD
KANSAS CITY, MISSOURI 64131
BURTON NEWMAN, ESQ.
SUSMAN, WILLER & RIMMEL
705 OLIVE STREET
ST. LOUIS, MISSOURI 63101
BEFORE THOMAS W. KENNEDY
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER). A NOTICE OF HEARING THEREUNDER WAS ISSUED ON AUGUST 6, 1973, BY
THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION,
KANSAS CITY REGION, BASED ON A COMPLAINT FILED ON APRIL 24, 1973, BY
ISAIAH MITCHELL (HEREIN CALLED MITCHELL OR COMPLAINANT MITCHELL) AGAINST
GENERAL SERVICES ADMINISTRATION, REGION 6, PUBLIC BUILDING SERVICES,
KANSAS CITY, MISSOURI (HEREIN CALLED RESPONDENT). THE COMPLAINT ALLEGES
VIOLATIONS OF SECTION 19, SUBSECTIONS (A)(1) AND (A)(6) OF THE ORDER, IN
THAT RESPONDENT; (1) DENIED UNION REPRESENTATION TO CHARLES BROOKS,
JR., AN EMPLOYEE, WHEN RESPONDENT ATTEMPTED TO SERVE ON BROOKS TWO FORMS
ENTITLED "RECORD OF INFRACTION"; (2) REFUSED TO CONSULT, CONFER OR
NEGOTIATE WITH LOCAL 308, APWU, DURING THE INCIDENT IN (1) ABOVE, AND
(3) REFUSED TO CONSULT, CONFER, OR NEGOTIATE WITH LOCAL 308, APWU, BY
REFUSING TO RECOGNIZE CHARLES BROOKS AS AN AUTHORIZED REPRESENTATIVE OF
LOCAL 308 APWU, WHEN BROOKS ATTEMPTED TO ACT ON BEHALF OF 18 OTHER
EMPLOYEES.
A HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED
ADMINISTRATIVE LAW JUDGE ON NOVEMBER 27, 1973, IN ST. LOUIS, MISSOURI.
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. AT THE END OF THE HEARING, CLAIMANTS'
ATTORNEY ARGUED ORALLY, AND FOLLOWING THE CLOSE OF THE HEARING,
RESPONDENT FILED A BRIEF. BOTH THE ORAL ARGUMENT AND THE BRIEF 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. MOTIONS FILED BY RESPONDENT
1. MOTION TO DISMISS
PRIOR TO THE HEARING RESPONDENT FILED WITH THE REGIONAL ADMINISTRATOR
FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION, KANSAS CITY REGION, A
MOTION TO DISMISS. THE FILING WAS SO CLOSE TO THE HEARING DATE THAT
SERVICE ON THE PARTIES WAS NOT ACCOMPLISHED BEFORE THE HEARING OPENED,
ALTHOUGH THE OFFICE OF ADMINISTRATIVE LAW JUDGES WAS ADVISED
TELEPHONICALLY BY THE REGIONAL ADMINISTRATOR'S OFFICE THAT THE MOTION
WAS REFERRED TO THE ADMINISTRATIVE LAW JUDGE FOR RULING. AT THE TIME
THE HEARING OPENED, RESPONDENT RENEWED THE MOTION AND FILED A COPY WITH
THE UNDERSIGNED AND SERVED A COPY ON COMPLAINANT'S ATTORNEY. (ALJ EXH.
1) RESPONDENT ARGUED IN ITS MOTION THAT THE COMPLAINT WAS DEFECTIVE IN
THAT ISAIAH MITCHELL, NAMED AS COMPLAINANT, WAS NOT AN EMPLOYEE OF
RESPONDENT BUT WAS A REPRESENTATIVE OF A LABOR ORGANIZATION DIFFERENT
FROM THAT WHICH REPRESENTED RESPONDENT'S EMPLOYEES. RESPONDENT'S MOTION
FURTHER ARGUED THAT RIGHTS ASSERTED IN THE COMPLAINT ARE RIGHTS OF
PARTIES NOT PARTIES OR SIGNATORIES TO THE COMPLAINT AND THAT THE ISSUES
INVOLVED COULD NOT BE RESOLVED BY DEALING WITH A LABOR ORGANIZATION
OTHER THAN THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES. FINALLY,
ALTHOUGH NO EVIDENCE HAD YET BEEN PRESENTED IN THE CASE, RESPONDENT'S
MOTION ARGUED THAT THE COMPLAINT LACKED MERIT. THE UNDERSIGNED DENIED
THE MOTION TO DISMISS ON ALL POINTS EXCEPT POINT 1, ON WHICH RULING WAS
RESERVED. MY RULING FOLLOWS ON THAT REMAINING PART OF THE MOTION.
CHARLES F. BROOKS, JR., WAS AN EMPLOYEE OF RESPONDENT DURING THE TIME
OF THE OCCURRENCES ALLEGED TO CONSTITUTE UNFAIR LABOR PRACTICES UNDER
THE ORDER. HE WAS DIRECTLY INVOLVED IN THOSE OCCURRENCES AND ATTEMPTED
TO FILE A CHARGE AGAINST RESPONDENT PURSUANT TO THE PROVISIONS OF THE
ORDER. HE WAS TOLD THAT HE COULD NOT FILE SUCH A CHARGE SINCE HE WAS NO
LONGER AN EMPLOYEE OF THE UNITED STATES GOVERNMENT, HAVING BEEN
DISCHARGED BY RESPONDENT. /1/ BROOKS THEN SOUGHT THE AID OF IS ISAIAH
MITCHELL, AN EMPLOYEE OF A DIFFERENT AGENCY OF THE U.S. GOVERNMENT, THE
DEPARTMENT OF DEFENSE. MITCHELL, WHO AT HIS PLACE OF EMPLOYMENT WAS A
SHOP STEWARD FOR A LOCAL OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
(HEREIN AFGE), FILED A CHARGE AGAINST RESPONDENT IN BEHALF OF BROOKS AND
LATER FILED THE COMPLAINT HEREIN. /2/
THE FACT THAT MITCHELL IDENTIFIED HIMSELF IN THE COMPLAINT AS SHOP
STEWARD, LOCAL 900, AFGE, DOES NOT, IN MY OPINION, DISQUALIFY HIM AS A
FILING PARTY. IT IS CLEAR THAT HE WAS FILING IN BEHALF OF BROOKS, FOR
THE UNDERLYING CHARGE SHOWS HIM AS "DESIGNATED REPRESENTATIVE" OF
BROOKS. BUT EVEN ASSUMING MITCHELL TO BE A REPRESENTATIVE OF AFGE, A
LABOR ORGANIZATION DIFFERENT FROM THE EXCLUSIVE REPRESENTATIVE OF
RESPONDENT'S EMPLOYEES, I SEE NOTHING IN EITHER SECTION 2 OF THE ORDER
OR SECTION 203.1 OF THE ASSISTANT SECRETARY'S RULES & REGULATIONS WHICH
WOULD PREVENT OR PRECLUDE SUCH A FILING. NOR DO I VIEW IT INCONSISTENT,
CONTRADICTORY OR INIMICAL TO THE PURPOSES OF THE ORDER THAT UNDER SUCH
CIRCUMSTANCES AN AGENCY IN RESOLVING A CHARGE OF UNFAIR LABOR PRACTICES
WOULD BE "DEALING" WITH A LABOR ORGANIZATION OTHER THAN THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES. BUT WE NEED NOT DWELL ON SUCH MATTERS,
FOR IT IS CLEAR, AND I SO FIND, THAT MITCHELL WAS ACTING AS A DESIGNATED
REPRESENTATIVE OF BROOKS. MITCHELL, IN MY OPINION, COULD QUALIFY TO
FILE THE COMPLAINT HEREIN AS "AN EMPLOYEE OF AN AGENCY...OF THE UNITED
STATES," AS SET OUT IN SECTION 2(B) OF THE ORDER AND REFERRED TO IN
SECTION 203.1 OF THE RULES AND REGULATIONS. BUT EVEN THAT IS
IMMATERIAL, FOR IF MITCHELL FILED AS AN AGENT OF BROOKS, WHICH I HAVE
FOUND, THEN WE MUST LOOK TO THE STATUS OF BROOKS HIMSELF. RESPONDENT IN
EFFECT ARGUES THAT BROOKS COULD NOT FILE THE COMPLAINT BECAUSE HE WAS
NOT AN EMPLOYEE OF RESPONDENT, AND MITCHELL COULD NOT FILE FOR HIM
BECAUSE NEITHER WAS MITCHELL AN EMPLOYEE OF RESPONDENT. BUT TO HOLD
THAT AN INDIVIDUAL CANNOT LODGE A COMPLAINT CONCERNING MATTERS WHICH
TOOK PLACE WHEN HE WAS AN EMPLOYEE SIMPLY BECAUSE HE WAS NOT AN EMPLOYEE
AT THE TIME HE WAS FILING WOULD DO GREAT HARM TO THE PURPOSES AND
POLICIES OF THE ORDER. UNDER SUCH A HOLDING AN EMPLOYEE DISCHARGED
BECAUSE HE ENGAGED IN ACTIVITY OR EXERCISED RIGHTS ASSURED BY THE ORDER
WOULD BE UNABLE TO FILE A COMPLAINT IN AN ATTEMPT TO REDRESS THE
DISCRIMINATION. AND IF A SHORT ANSWER IS THAT HE CAN GET A LABOR
ORGANIZATION TO FILE FOR HIM, THEN WHAT OF THE EMPLOYEE WHO IS FIRED
BECAUSE HE REFUSES TO JOIN THE UNION? TO WHOM DOES HE TURN? WHILE A
LITERAL OR STRAINED READING OF THE DEFINITION OF "EMPLOYEE" UNDER
SECTION 2(B) OF THE ORDER MIGHT LEAD TO A HOLDING THAT SUCH AN
INDIVIDUAL WOULD HAVE NO STANDING TO FILE A COMPLAINT, THE RESULTANT
ABSURDITY WHEN VIEWED IN CONTEXT WITH THE OVERALL PROVISIONS AND
PURPOSES OF THE ORDER COMMANDS A DIFFERENT CONCLUSION. /3/ I FIND,
THEREFORE, THAT BROOKS COULD HAVE FILED THE CHARGE, AND LATER THE
COMPLAINT, IN THIS MATTER AND CONSEQUENTLY MITCHELL COULD SO FILE,
EITHER AS THE AGENT OF BROOKS OR AS AN "EMPLOYEE." ACCORDINGLY, FOR THE
REASONS STATED ABOVE, THAT PORTION OF RESPONDENT'S MOTION TO DISMISS
TAKEN UNDER ADVISEMENT AT THE HEARING IS HEREBY DISMISSED.
2. MOTION TO CORRECT TRANSCRIPT
RESPONDENT ALSO FILED MOTION FOR CORRECTION OF THE OFFICIAL REPORT OF
PROCEEDINGS, SETTING OUT CERTAIN REQUIRED CHANGES IN THE TRANSCRIPT. NO
RESPONSE WAS FILED BY THE COMPLAINANTS. HAVING CAREFULLY REVIEWED THE
TRANSCRIPT AND NOTES TAKEN AT THE HEARING, THE UNDERSIGNED ON MARCH 26,
1974, ISSUED ORDER CORRECTING TRANSCRIPT, SETTING OUT THE CHANGES
INCORPORATED IN RESPONDENT'S MOTION, TOGETHER WITH OTHER CHANGES DEEMED
BY THE UNDERSIGNED TO BE NECESSARY AND APPROPRIATE. COPIES OF THAT
ORDER WERE SERVED ON THE PARTIES AND HAVE BEEN ATTACHED TO THE OFFICIAL
REPORT OF PROCEEDINGS IN THIS MATTER.
B. MOTIONS FILED BY COMPLAINANTS
FOLLOWING THE HEARING, THE ATTORNEY FOR COMPLAINANT MITCHELL, SIGNING
AS "ATTORNEY FOR INTERVENORS", FILED A DOCUMENT ENTITLED "MOTION FOR
INTERVENTION," THROUGH WHICH HE PURPORTED TO REPRESENT, AND SOUGHT,
PURSUANT TO SEC. 203.11 AND 203.18 OF THE RULES AND REGULATIONS, TO HAVE
NAMED AS PARTIES AND INTERVENORS, CHARLES F. BROOKS, JR., AND A GROUP
NOT IDENTIFIED BY NAME BUT DESCRIBED AS A GROUP OF 18 EMPLOYEES
COMPRISING THE MAINTENANCE CREW AND REFERRED TO IN THE MOTION AS "CREW."
1. MOTION FOR INTERVENTION-- CHARLES F. BROOKS, JR.
AS TO THAT PART OF THE MOTION FOR INTERVENTION DEALING WITH CHARLES
F. BROOKS, JR., I FIND THAT CHARLES F. BROOKS, JR., IS THE REAL PARTY IN
INTEREST IN THIS PROCEEDING, AND FOR THE REASONS STATED ABOVE IN THE
DISCUSSION OF RESPONDENT'S MOTION TO DISMISS, BROOKS COULD HAVE FILED AS
COMPLAINANT. ACCORDINGLY, THAT PORTION OF THE MOTION FOR INTERVENTION
IS HEREBY GRANTED, AND I HAVE AMENDED THE CAPTION TO SHOW CHARLES F.
BROOKS, JR., AS A CO-COMPLAINANT.
2. MOTION FOR INTERVENTION-- THE CREW
TURNING NOW TO THE SECOND PORTION OF THE MOTION FOR INTERVENTION, I
FIND THAT THE CREW, AS DESCRIBED THEREIN, DOES NOT HAVE SUFFICIENT
INTEREST TO WARRANT INTERVENTION IN THIS PROCEEDING. ALTHOUGH MENTIONED
IN THE TESTIMONY AT THE HEARING, MORE FULLY DESCRIBED BELOW, THE
INDIVIDUALS WERE NEVER IDENTIFIED BY NAME, WITH THE EXCEPTION OF BROOKS,
WHO WAS THE ONLY ONE OF THE GROUP TO TESTIFY AND WHO DESCRIBED HIMSELF
AS THE REPRESENTATIVE OF THE GROUP WHILE HE WAS EMPLOYED BY RESPONDENT.
THE INTEREST OF THAT PARTICULAR GROUP OF EMPLOYEES IN THE OUT-COME OF
THESE PROCEEDINGS IS NO MORE APPARENT THAN THE INTEREST OF ANY EMPLOYEES
OF ANY RESPONDENT INVOLVED IN AN UNFAIR LABOR PRACTICE PROCEEDING.
ACCORDINGLY, THAT PORTION OF THE MOTION FOR INTERVENTION RELATING TO THE
"CREW" IS HEREBY DENIED.
THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SEC. 19(A)(1) AND (6)
OF THE ORDER, AND THE EVIDENCE ADDUCED TO SUPPORT THE ALLEGATIONS
INVOLVES TWO INCIDENTS; ONE WHERE CHARLES BROOKS SOUGHT A MEETING WITH
MANAGEMENT PERSONNEL TO DISCUSS CONDITIONS AFFECTING THE NIGHT
MAINTENANCE CREW, AND ONE WHERE MANAGEMENT PERSONNEL ATTEMPTED TO SERVE
ON BROOKS TWO RECORD OF INFRACTION FORMS. AT THE TIME OF THESE TWO
INCIDENTS THERE WAS IN EFFECT A COLLECTIVE BARGAINING AGREEMENT BETWEEN
RESPONDENT AND LOCAL 308, NATIONAL ASSOCIATION OF POST OFFICE AND
GENERAL SERVICES MAINTENANCE EMPLOYEES. /4/ THAT CONTRACT (RESP. EXH.
4) GRANTS EXCLUSIVE RECOGNITION TO LOCAL 308 IN A UNIT DESCRIBED IN
SECTION 2 THEREOF, WHICH READS AS FOLLOWS:
THE EMPLOYER RECOGNIZES THE EMPLOYEE ORGANIZATION (LOCAL 308) AS THE
EXCLUSIVE
REPRESENTATIVE UNDER THE PROVISIONS OF EXECUTIVE ORDER 10988 OF ALL
EMPLOYEES IN THE BUILDING
MANAGEMENT DIVISION, PUBLIC BUILDINGS SERVICE, GENERAL SERVICES
ADMINISTRATION, ST. LOUIS,
MISSOURI, COMMUTING AREA, EXCEPT THE INCUMBENTS OF THE FOLLOWING
POSITIONS PREVIOUSLY
IDENTIFIED IN THE LETTER FROM THE REGIONAL ADMINISTRATOR GRANTING
EXCLUSIVE RECOGNITION:
CLERICAL AND ADMINISTRATIVE EMPLOYEES
ANY MANAGERIAL EXECUTIVE
ANY PERSON ENGAGED IN GSA PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY.
BOTH SUPERVISORS WHO OFFICIALLY EVALUATE PERFORMANCE OF EMPLOYEES AND
THE EMPLOYEES WHOM
THEY SUPERVISE (EXCLUSION OF RATING SUPERVISORS ALLOWS INCLUSION OF
EMPLOYEES)
BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF
SUCH PROFESSIONAL
EMPLOYEES VOTE FOR INCLUSION IN THE UNIT
IN THE EVENT OF ORGANIZATIONAL CHANGES AFFECTING POSITIONS IN THE
UNIT, THE EMPLOYER IS
AUTHORIZED TO IDENTIFY ADDITIONAL POSITIONS THE INCUMBENTS OF WHICH
SHALL BE EXCLUDED FROM THE
UNIT IN ACCORDANCE WITH SECTION 6A OF EXECUTIVE ORDER 10988.
A. THE MEETING INCIDENT
CHARLES F. BROOKS, JR., WORKED AS A MAINTENANCE MAN ON THE NIGHT
SHIFT AT 1520 MARKET STREET, ST. LOUIS, MISSOURI. HE WAS EMPLOYED UNDER
A SPECIAL PROGRAM DESIGNED TO PROMOTE THE HIRING OF MENTALLY HANDICAPPED
INDIVIDUALS. HE WAS THE SERGEANT-AT-ARMS OF LOCAL 308 AND WAS ONE OF A
CREW OF 19 WORKING ON THE NIGHT SHIFT. MANUEL BROWN AND ROBERT FRAZIER
WERE THE SUPERVISORS RESPONSIBLE FOR THE WORK OF THE NIGHT CREW AT 1520
MARKET STREET. OVER THEM WAS THE NIGHT BUILDING MANAGER, ALBERT FALCON,
AND OVER HIM WAS EARL KORDICK, BUILDING MANAGER FOR THE DOWNTOWN CREW.
DURING THE PERIOD OF TIME INVOLVED HEREIN THERE WAS NO SHOP STEWARD
AT 1520 MARKET STREET. THE NEAREST SHOP STEWARD OF LOCAL 308 AT NIGHT
TIME WAS LOCATED IN A BUILDING LOCATED A FEW BLOCKS AWAY AT 1114 MARKET
STREET.
ON OCTOBER 11, 1972, DURING A BREAK PERIOD, THE NIGHT CREW AT 1520
MARKET STREET MET AND DISCUSSED AMONG THEMSELVES PROBLEMS THEY WERE
HAVING IN UNDERSTANDING CERTAIN DISSEMINATED REGULATIONS WHICH AFFECTED
THEIR WORK. AT THAT MEETING THEY ELECTED CHARLES BROOKS, JR., TO ACT
AS, AND SERVE AS, SHOP STEWARD AND/OR THEIR REPRESENTATIVE TO ARRANGE A
MEETING WITH MANAGEMENT TO DISCUSS THE WORKING CONDITIONS AND
SUPERVISORY INSTRUCTIONS. ON THE FOLLOWING NIGHT, AT BROOKS' REQUEST,
SUPERVISOR BROWN ARRANGED A MEETING BETWEEN BROOKS AND NIGHT BUILDING
MANAGER FALCON. AT THAT MEETING, WHICH TOOK PLACE IN FALCON'S OFFICE AT
1520 MARKET STREET AROUND 9:30 P.M., BROOKS TOLD FALCON ABOUT THE
ELECTION THE NIGHT BEFORE AND REQUESTED THAT MANAGEMENT REPRESENTATIVES
MEET WITH THE NIGHT CREW. FALCON REFUSED TO MEET WITH THE CREW, AND IT
IS THIS REFUSAL WHICH IS ALLEGED TO BE AN UNFAIR LABOR PRACTICE UNDER
THE ORDER.
THERE IS LITTLE DISPUTE ABOUT THE MEETING, BUT FALCON'S VERS6ON,
WHICH I CREDIT, IS MORE DETAILED. ACCORDING TO HIM, BROOKS WANTED TO
HOLD THE MEETING WITH THE ENTIRE NIGHT CREW AT THAT VERY MOMENT. BROOKS
WAS VAGUE, STATING ONLY "GENERAL CONDITIONS" AS THE SUBJECT MATTER FOR
THE REQUESTED MEETING. FALCON PROTESTED THAT HE COULD NOT SHUT DOWN THE
ENTIRE OPERATIONS FOR SUCH A MEETING AND SUGGESTED TO BROOKS, "WELL, IF
SOME PEOPLE HAVE A COMPLAINT, I'M WILLING TO SIT DOWN AND TALK WITH YOU
OR ANY ONE OF THE 18 PEOPLE YOU WANT. GO OUT IN THE CORRIDOR, HELP
YOURSELF TO ONE AND BRING HIM IN, WE'LL SIT DOWN AND TALK ABOUT IT."
(TR. 105) BROOKS WOULD NOT AGREE WITH THAT PROCEDURE, INSISTING INSTEAD
THAT THE MEETING BE HELD THEN WITH THE ENTIRE CREW. AFTER THE SHORT
MEETING WITH BROOKS, FALCON ADVISED BUILDING MANAGER KORDICK ABOUT HIS
CONVERSATION WITH BROOKS, AND KORDICK CONTRACTED WILLIAM HENDERSON,
PRESIDENT OF LOCAL 308, AND ARRANGED A MEETING TO DISCUSS ANY PROBLEMS
WHICH MIGHT EXIST CONCERNING MEMBERS OF THE NIGHT CREW AT 1520 MARKET
STREET. THAT MEETING TOOK PLACE THE FOLLOWING MONDAY, OCTOBER 16, AND
WAS ATTENDED BY MANAGEMENT OFFICIALS, UNION PRESIDENT HENDERSON, AND
SEVERAL MEMBERS OF THE NIGHT CREW. BROOKS WAS EXCLUDED FROM THE
MEETING, BUT THERE IS NO EVIDENCE THAT RESPONDENT HAD ANYTHING TO DO
WITH THE EXCLUSION. ON THE CONTRARY, THE EVIDENCE IS CLEAR AND
UNDISPUTED THAT BROOKS WAS EXCLUDED FROM THE MONDAY MEETING BY UNION
PRESIDENT HENDERSON.
SECTION (19)(A)(6) OF THE ORDER MAKES IT AN UNFAIR LABOR PRACTICE TO
"REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS
REQUIRED BY THIS ORDER." AND SEC. 11 STATES, INTER ALIA, "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 POLICES AND PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS..." (EMPHASIS SUPPLIED)
AT THE TIME BROOKS REQUESTED THE MEETING, HE WAS SERGEANT-AT-ARMS OF
LOCAL 308 AND AS SUCH WAS LISTED AS ONE OF THE ELECTED OFFICIALS IN A
DOCUMENT SENT TO RESPONDENT IN MARCH OF THAT YEAR. (JOINT EXHIBIT 1)
WHEN BROOKS REQUESTED THE MEETING, HE ANNOUNCED THAT ON THE PREVIOUS
NIGHT HE HAD BEEN ELECTED SHOP STEWARD OF THE NIGHT CREW AT 1520 MARKET
STREET. FALCON HAD RECEIVED NO OTHER NOTIFICATION OF SUCH ELECTION AND
MIGHT REASONABLY HAVE QUESTIONED IT, PARTICULARLY SINCE THE ESTABLISHED
PROCEDURE CALLED FOR SUCH NOTIFICATIONS TO COME FROM THE UNION
PRESIDENT. BUT THAT IS NOT THE POINT, FOR WHETHER AS SERGEANT-AT-ARMS
OR AS THE NEWLY ELECTED SHOP STEWARD, FALCON DID NOT REFUSE TO "CONSULT
AND CONFER" WITH BROOKS. INDEED, HE INDICATED A WILLINGNESS TO DISCUSS
ANY PROBLEMS AND EVEN SUGGESTED THAT BROOKS BRING IN ANYONE WHO HAD ANY
PROBLEMS. APPARENTLY HE WAS WILLING TO RECOGNIZE BROOKS AS AN
"APPROPRIATE REPRESENTATIVE." WHAT HE WAS NOT WILLING TO DO WAS TO MEET
WITH THE ENTIRE CREW OF 19 WORKERS AT THAT TIME. SINCE BROOKS WAS VAGUE
AND GENERAL ABOUT ANY PROBLEMS THAT EXISTED, AND PARTICULARLY SINCE
CALLING A MEETING OF THE ENTIRE CREW AT 9:30 P.M. WOULD HAVE CLOSED DOWN
THE ENTIRE OPERATIONS OF THE NIGHT CREW, IT WAS NOT, IN MY OPINION, A
"REASONABLE TIME" FOR SUCH A MEETING. THE GOOD FAITH OF RESPONDENT WAS
CLEARLY SHOWN, I THINK, BY ITS ACTION IN IMMEDIATELY ARRANGING A MEETING
WITH THE UNION PRESIDENT TO DISCUSS ANY PROBLEMS WHICH MIGHT EXIST.
RESPONDENT'S ACTIONS, THEREFORE, WERE NOT INCONSONANT WITH THE
PROVISIONS OF THE ORDER.
B. THE FORM 225 INCIDENT
ON OCTOBER 16, 1972, SUPERVISORS BROWN AND FRAZIER APPROACHED BROOKS
AT HIS PLACE OF WORK AND ATTEMPTED TO DELIVER TO HIM TWO FORMS, WHICH
THEY REQUESTED BROOKS TO READ AND SIGN. THE FORMS, DESIGNATED AS FORM
225, ARE USED TO RECORD INFRACTIONS OF RULES OR INSTRUCTIONS AND PROVIDE
A SPACE FOR THE EMPLOYEE'S COMMENTS AND SIGNATURE.
BROOKS TESTIFIED THAT WHEN THE TWO SUPERVISORS PROFFERED THE FORMS,
BROOKS REQUESTED THAT A UNION REPRESENTATIVE BE PRESENT, STATING THAT HE
WAS NOT REFUSING TO SIGN, BUT WANTED A UNION REPRESENTATIVE TO EXPLAIN
THE FORMS TO HIM BEFORE HE SIGNED. AT THIS POINT, ACCORDING TO BROOKS,
THE SUPERVISORS STATED, "THIS IS PERSONNEL MANAGEMENT AND YOU DON'T NEED
NO UNION REPRESENTATION." (TR. 61) THE MATTER WAS NOT PURSUED, AND THE
SUPERVISORS LEFT.
THE TWO SUPERVISORS INVOLVED IN THE INCIDENT TESTIFIED, AND THEIR
TESTIMONY DIFFERS FROM THAT OF BROOKS IN ONE MATERIAL RESPECT.
ACCORDING TO SUPERVISORS BROWN AND FRAZIER, BROOKS REFUSED TO ACCEPT OR
SIGN THE FORMS 225 UNLESS HE HAD WITNESSES, SPECIFICALLY REQUESTING TWO
FELLOW EMPLOYEES, FEDDIE JENKINS AND ROCKEFELLER SMITH. NEITHER OF
THESE TWO EMPLOYEES HELD ANY POSITION IN LOCAL 308 AT THAT TIME, EXCEPT
POSSIBLY THAT OF MEMBER, AND ACCORDING TO BROWN AND FRAZIER, BROOKS
REFERRED TO THEM AS "WITNESSES" AND NEVER DURING THE INCIDENT MENTIONED
THE UNION. WHEN BROOKS WAS ADAMANT ABOUT HIS REQUEST, EVEN AFTER THE
SUPERVISORS OFFERED TO READ THE CONTENTS OF THE FORMS, BROWN AND FRAZIER
ABANDONED THEIR TASK AND LEFT WITH THE FORMS UNDELIVERED. /5/ I CREDIT
BROWN'S AND FRAZIER'S VERSION OF THE INCIDENT, FINDING IT TO BE MORE
PROBABLE, PARTICULARLY IN LIGHT OF THE FACT THAT AT THAT TIME BROOKS
HELD HIMSELF OUT TO BE THE UNION REPRESENTATIVE OF THE NIGHT CREW,
HAVING BEEN ELECTED SHOP STEWARD JUST FIVE DAYS BEFORE. THIS IS NOT TO
SAY, AS SUGGESTED BY RESPONDENT, THAT HAD THE CIRCUMSTANCES WARRANTED,
BROOKS WOULD NOT BE ENTITLED TO A UNION REPRESENTATIVE SIMPLY BECAUSE HE
HIMSELF WAS ONE. BUT I FIND THAT BROOKS WAS NOT DENIED UNION
REPRESENTATION; HE WAS DENIED HIS REQUEST THAT TWO FELLOW EMPLOYEES BE
BROUGHT FROM THEIR PLACES OF WORK TO WITNESS THE INCIDENT.
SECTION (10)(E) OF THE ORDER STATES, IN PERTINENT PART: "WHEN A
LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION, IT... 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." (EMPHASIS
SUPPLIED) IT COULD BE ARGUED THAT BROOKS WAS ENTITLED TO HAVE A
REPRESENTATIVE (OR TWO) PRESENT DURING ANY DISCUSSION OF A RULE
INFRACTION AND THAT IT WAS IMMATERIAL WHETHER HE USED THE TERM "UNION
REPRESENTATIVE" OR "WITNESSES." WHETHER OR NOT THE "OPPORTUNITY TO BE
REPRESENTED" SHOULD HAVE BEEN ACCORDED BROOKS UNDER THE CIRCUMSTANCES
WOULD THEN DEPEND ON WHETHER THE ABORTED DISCUSSION AT THE TIME OF THE
PRESENTATION OF THE FORMS 225 COULD BE CONSIDERED A "FORMAL DISCUSSION,"
AS CONTEMPLATED BY SEC. 10(E) OF THE ORDER.
BUILDING MANAGER KORDICK, WHEN ASKED TO DESCRIBE HOW A FORM 225 IS
USED, TESTIFIED AS FOLLOWS:
A. WHEN THERE IS A REASONABLE BASIS FOR AN INFRACTION, WE COMPLETE
THIS FORM, PUT ALL THE FACTS THAT WE KNOW ON IT, GIVE IT TO THE
EMPLOYEE, HE HAS A CHANCE TO MAKE A STATEMENT WHETHER HE AGREES WITH IT,
WHETHER IT'S TOTALLY WRONG, HE CAN SAY ANYTHING HE WANTS TO ON THAT
FORM.
Q. WHAT HAPPENS TO THE FORM THEN?
A. ONCE WE GET A STATEMENT OR LACK OF A STATEMENT, THERE IS ANOTHER
SECTION IN IT WHICH WE LIST PREVIOUS INFRACTIONS, THEN THERE IS AN ITEM
FOR ACTION TAKEN AND A SUPERVISOR WILL RECOMMEND AN ACTION, AND A HIGHER
LEVEL SUPERVISOR WILL INDICATE THE ACTION AKEN, TO RECOMMEND. THIS
BECOMES THE BASIS FOR A WARNING LETTER OR WHATEVER DISCIPLINARY ACTION
THAT MIGHT BE TAKEN.
Q IS THE FORM ITSELF INTENDED AS ANY DISCIPLINARY ACTION?
A NO, IT ISN'T. AS A MATTER OF FACT, IF THE EMPLOYEE'S STATEMENT IS
A SATISFACTORY EXPLANATION OF THE SUPERVISOR'S REPORT, THE FORM WOULD BE
DESTROYED.
Q. IS THIS A FACT-GATHERING DEVICE ON AN INCIDENT THAT HAS BEEN
REPORTED TO YOU, IS THAT WHAT YOU'RE SAYING?
A. WELL, WE TRY TO GATHER AS MANY FACTS AS WE CAN TO PUT ON THE FORM
TO START WITH. THEN WE GIVE ALL OF THE FACTS THAT WE HAVE TO THE
EMPLOYEE TO READ AND MAKE ANY STATEMENT HE MIGHT HAVE. (TR. 86-87)
THE USE OF THE FORM 225 IN THE INSTANT CASE IS NOT UNLIKE THE USE OF
"COUNSELLING SESSIONS" INVOLVED IN A CASE RECENTLY DECIDED BY THE
ASSISTANT SECRETARY. IN THAT CASE (DEPARTMENT OF DEFENSE, NATIONAL
GUARD BUREAU, TEXAS AIR NATIONAL GUARD, A/SLMR NO. 336, DECIDED JANUARY
8, 1974), THE ASSISTANT SECRETARY, IN ANSWER TO AN ARGUMENT THAT THE
EMPLOYEE WAS ENTITLED TO HAVE A UNION REPRESENTATIVE PRESENT, STATED:
THUS, THE SESSIONS INVOLVED DID NOT RELATE TO THE PROCESSING OF A
GRIEVANCE. (FOOTNOTE OMITTED) MOREOVER, THE MATTERS DISCUSSED AT THE
SESSIONS DID NOT
INVOLVE GENERAL WORKING CONDITIONS AND WORK PERFORMANCE. RATHER THEY
WERE RELATED . . . TO AN
INDIVIDUAL EMPLOYEE'S ALLEGED SHORT-COMINGS. . . IN MY JUDGMENT, BOTH
INCIDENTS HAD NO WIDER
RAMIFICATIONS THEN BEING LIMITED DISCUSSIONS AT A PARTICULAR TIME
WITH AN INDIVIDUAL EMPLOYEE
. . . CONCERNING PARTICULAR INCIDENTS AS TO HIM. (FOOTNOTE OMITTED)
(SLIP OPINION PP. 3-4)
THE "SESSIONS" IN THAT CASE WERE HELD NOT TO BE "FORMAL DISCUSSIONS"
UNDER SEC. 10(E), AND THUS THE DENIAL OF UNION REPRESENTATION DID NOT
CONSTITUTE A VIOLATION OF THE ORDER. I FIND IN THE INSTANT CASE, FOR
THE REASONS STATED ABOVE, THAT THE DISCUSSION WITH BROOKS AT THE TIME OF
THE DELIVERY OF THE FORMS 225 DID NOT CONSTITUTE A "FORMAL DISCUSSION"
UNDER THE PROVISIONS OF SEC. (10)(E) OF THE ORDER, AND BROOKS,
THEREFORE, WAS NOT ENTITLED TO UNION REPRESENTATION AT THE INCIDENT.
ON OCTOBER 11, 1972, WHEN BROOKS ATTEMPTED TO ARRANGE A MEETING
BETWEEN MANAGEMENT OFFICIALS AND THE ENTIRE NIGHT CREW, FALCON DID NOT
QUESTION BROOKS' NEWLY ACQUIRED STATUS AS SHOP STEWARD. ALL HE DID WAS
TO REFUSE TO INTERRUPT THE SCHEDULED WORK OF THE EMPLOYEES TO HOLD A
MEETING. THIS REFUSAL WAS NEITHER UNREASONABLE NOR COUNTER TO THE
PROVISIONS OF THE ORDER. AND ON OCTOBER 16, 1972, WHEN BROWN AND
FRAZIER ATTEMPTED TO DELIVER TO BROOKS TWO FORMS AND TO DISCUSS WITH HIM
THE INFRACTIONS NOTED THEREON, THEY DID NOT DENY BROOKS OR THE UNION ANY
RIGHTS ACCORDED EITHER OF THEM BY THE ORDER. IT FOLLOWS, THEREFORE, AND
I CONCLUDE, THAT RESPONDENT'S ACTIONS IN DENYING THE REQUEST FOR THE
MEETING ON OCTOBER 11, AND IN DENYING THE REQUEST FOR WITNESSES OR
REPRESENTATIVES ON OCTOBER 16, DID NOT CONSTITUTE VIOLATIONS OF SEC.
19(A)(6) OF THE ORDER. MOREOVER, THESE DENIALS DID NOT INTERFERE WITH
ANY RIGHTS ACCORDED BROOKS UNDER THE ORDER, NOR DID RESPONDENT'S ACTIONS
INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THE
RIGHT ASSURED BY THE ORDER, AND, THEREFORE, DID NOT CONSTITUTE
VIOLATIONS OF SEC. 19(A)(1) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THAT THE COMPLAINT HEREIN AGAINST RESPONDENT BE
DISMISSED IN ITS ENTIRETY.
DATED: APRIL 4, 1974
WASHINGTON, D.C.
/1/ BY RULING ON MOTION FOR INTERVENTION, DISCUSSED INFRA, CAPTION
WAS AMENDED TO NAME CHARLES F. BROOKS, JR., AS CO-COMPLAINANT. THE TWO
CO-COMPLAINANTS ARE REFERRED TO INFRA, SOMETIMES INDIVIDUALLY BY NAME,
AND AT OTHER TIMES JOINTLY AS COMPLAINANTS.
/2/ BROOKS' DISCHARGE IS NOT ALLEGED AS AN UNFAIR LABOR PRACTICE.
CONSEQUENTLY NO EVIDENCE WAS ADDUCED AT THE HEARING CONCERNING THE
CIRCUMSTANCES OR EVENTS LEADING TO THE TERMINATION OF HIS EMPLOYMENT BY
RESPONDENT.
/3/ THE CHARGE, FILED JANUARY 17, 1973, SHOWED BROOKS AS "EMPLOYEE"
AND MITCHELL AS "DESIGNATED REPRESENTATIVE" (ATTACHMENT TO ASST.
SECRETARY'S EXH. 1(B)). SEE ALSO RESPONDENT'S EXH. 1, A DOCUMENT DATED
OCTOBER 28, 1972, GIVING MITCHELL AUTHORIZATION TO REPRESENT BROOKS IN
MATTERS CONCERNING "GRIEVANCES AND/OR APPEALS," A DESIGNATION I CONSIDER
BROAD ENOUGH TO INCLUDE FILING OF CHARGES UNDER THE ORDER.
/4/ WHILE NOT CONTROLLING IN THE INSTANT CASE, A SOMEWHAT ANALAGOUS
SITUATION AROSE UNDER THE NATIONAL LABOR RELATIONS ACT (49 STAT. 449, 29
U.S.C. SEC. 151 ET SEQ.,). IN PHELPS DODGE CORPORATION, 19 NLRB, 547,
THE NATIONAL LABOR RELATIONS BOARD, IN INTERPRETING THE DEFINITION OF
"EMPLOYEE" TOGETHER WITH THE UNFAIR LABOR PRACTICE PROVISIONS OF THE
ACT, ORDERED REINSTATED TWO INDIVIDUALS WHO WERE REFUSED EMPLOYMENT ON
APPLICATION BECAUSE THEY WERE UNION MEMBERS. GRANTED THE DEFINITION OF
"EMPLOYEE" UNDER THE NATIONAL LABOR RELATIONS ACT IS CONSIDERABLY
BROADER THAN THAT IN THE ORDER, THE RATIONALE EMPLOYED BY THE SUPREME
COURT IN UPHOLDING THE BOARD'S DECISION IS APPLICABLE HERE, PARTICULARLY
AS IT RELATES TO INTERPRETATION OF DEFINITIONS TO AVOID DOING VIOLENCE
TO UNDERLYING POLICIES AND OVERALL PROVISIONS. (SEE PHELPS DODGE
CORPORATION V. NATIONAL LABOR RELATIONS BOARD, 313 U.S. 177, 61
S.C.REPT. 845, 847-850)
/5/ THIS ORGANIZATION, A LABOR ORGANIZATION WITHIN THE MEANING OF
SEC. 2(E) OF THE ORDER, IS PRESENTLY KNOWN, AND AT ALL TIMES MATERIAL
HEREIN WAS KNOWN, AS AMERICAN POSTAL WORKERS UNION (APWU). IT IS
REFERRED TO HEREIN AS LOCAL 308 OR THE UNION.
/6/ THE ACTUAL FORMS INVOLVED IN THE INCIDENT WERE NOT PUT IN
EVIDENCE BY EITHER PARTY, BUT THERE WAS RECEIVED IN EVIDENCE
RESPONDENT'S EXHIBIT 6, A BLANK FORM 225. THERE IS EVIDENCE THAT BROOKS
WAS DISCHARGED ABOUT TWO WEEKS AFTER THIS INCIDENT, BUT THAT DISCHARGE
IS NOT IN ISSUE IN THIS CASE. I CONSIDER, THEREFORE, THE CONTENTS OF
THE FORMS 225 PROFFERED TO BROOKS TO BE IMMATERIAL TO THE ISSUES
PRESENTED HERE.
4 A/SLMR 403; P. 423; CASE NOS. 40-4911(CA), 40-4971(CA); JUNE 24,
1974.
CHARLESTON NAVAL SHIPYARD,
PRODUCTION DEPARTMENT,
CHARLESTON, SOUTH CAROLINA
A/SLMR NO. 403
THIS PROCEEDING AROSE UPON THE FILING OF SEPARATE UNFAIR LABOR
PRACTICE COMPLAINTS BY A UNIT EMPLOYEE AND A STEWARD OF THE EXCLUSIVE
REPRESENTATIVE ALLEGING THAT THE RESPONDENT ACTIVITY HAD VIOLATED
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491 BY DENYING EACH OF THEM THEIR
RIGHTS ACCORDED BY SECTION 7(D)(1) OF THE ORDER. IN THIS CONNECTION,
THE UNIT EMPLOYEE ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT ACTIVITY
VIOLATED THE ORDER BY REFUSING TO ALLOW HIM THE RIGHT TO HAVE THE
STEWARD REPRESENT HIM AT AN INVESTIGATIVE DISCUSSION WHICH COULD HAVE
RESULTED IN DISCIPLINARY ACTION BEING TAKEN AGAINST HIM. THE STEWARD
ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT ACTIVITY VIOLATED THE ORDER
BY COMPELLING HIM TO USE TWO HOURS OF ANNUAL LEAVE RATHER THAN GRANTING
HIM OFFICIAL TIME IN ORDER TO RESOLVE THE UNFAIR LABOR PRACTICE CHARGE
FILED BY THE UNIT EMPLOYEE AGAINST THE RESPONDENT ACTIVITY.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THE COMPLAINTS.
IN THIS REGARD, HE NOTED THAT SECTION 7(D) OF THE ORDER CONFERS NO
RIGHTS UPON EMPLOYEES, ORGANIZATIONS, OR ASSOCIATIONS ENFORCEABLE UNDER
SECTION 19 OF THE ORDER, BUT MERELY DELINEATES THOSE INSTANCES IN WHICH
EMPLOYEES MAY CHOOSE A REPRESENTATIVE OTHER THAN THEIR EXCLUSIVE
REPRESENTATIVE IN CERTAIN GRIEVANCE OR APPELLATE ACTIONS. WITH REGARD
TO THE UNIT EMPLOYEE'S ALLEGATIONS, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT A SUPERVISOR CONDUCTED A PRELIMINARY PRIVATE DISCUSSION WITH THE
EMPLOYEE IN ACCORDANCE WITH THE NEGOTIATED AGREEMENT'S PROCEDURE WHICH
SPECIFIED THAT AN EMPLOYEE WAS NOT ENTITLED TO REPRESENTATION AT SUCH
DISCUSSIONS. MOREOVER, THE ADMINISTRATIVE LAW JUDGE FOUND, CONSISTENT
WITH DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU, TEXAS AIR NATIONAL
GUARD, A/SLMR NO. 336, THAT THE EXCLUSIVE REPRESENTATIVE HAD NO RIGHT
UNDER SECTION 10(E) OF THE ORDER TO BE PRESENT AT SUCH A DISCUSSION AS
THE DISCUSSION WAS INFORMAL IN NATURE AND INVOLVED MERELY THE ALLEGED
SHORTCOMINGS PECULIAR TO THE EMPLOYEE AND NOT GENERAL WORKING
CONDITIONS.
WITH REGARD TO THE STEWARD'S ALLEGATIONS, THE ADMINISTRATIVE LAW
JUDGE NOTED THAT WHILE THE ASSISTANT SECRETARY'S REGULATIONS PROVIDE FOR
GRANTING OFFICIAL TIME TO CERTAIN EMPLOYEES WHO TESTIFY AT HEARINGS HELD
UNDER THE EXECUTIVE ORDER, THERE IS NO PROVISION IN THE ASSISTANT
SECRETARY'S REGULATIONS OR UNDER THE ORDER GRANTING OFFICIAL TIME TO
UNION REPRESENTATIVES IN ORDER TO INVESTIGATE UNFAIR LABOR PRACTICE
CHARGES. ACCORDINGLY, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
REQUIRING THE STEWARD TO TAKE ANNUAL LEAVE, WITHOUT MORE, DID NOT
CONSTITUTE INTERFERENCE OR RESTRAINT UNDER THE ORDER.
NOTING THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY ADOPTED
THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE. ACCORDINGLY, HE ORDERED THAT THE COMPLAINTS BE DISMISSED.
CHARLESTON NAVAL SHIPYARD,
PRODUCTION DEPARTMENT,
CHARLESTON, SOUTH CAROLINA
AND
ISAIAH G. GILLINS (INDIVIDUAL)
CHARLESTON NAVAL SHIPYARD,
PRODUCTION DEPARTMENT,
CHARLESTON, SOUTH CAROLINA
AND
ORA MAUK (INDIVIDUAL)
ON APRIL 30, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK 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 COMPLAINTS AND RECOMMENDING THAT THE COMPLAINTS BE
DISMISSED IN THEIR 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 CASES, 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 COMPLAINTS IN CASES NOS. 40-4911(CA)
AND 40-4971(CA) BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 24 1974
IN THE MATTER OF
CHARLESTON NAVAL SHIPYARD
PRODUCTION DEPARTMENT
CHARLESTON, SOUTH CAROLINA
ISAIAH G. GILLINS
CHARLESTON NAVAL SHIPYARD
PRODUCTION DEPARTMENT
CHARLESTON, SOUTH CAROLINA
ORA MAUK
EDWARD T. BORDA, ESQ.
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
LABOR RELATIONS DISPUTES & APPEALS SECTION
WASHINGTON, D.C. 20390
ORA MAUK
207 MICHAEL DRIVE
SUMMERVILLE, SOUTH CAROLINA 29483
JOSEPH D. SPELLER
AREA ADMINISTRATOR
METAL TRADES COUNCIL OF CHARLESTON
P.O. BOX 2722, STATION A
CHARLESTON, SOUTH CAROLINA 29404
BEFORE: WILLIAM NAIMARK
THESE CASES AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREIN
CALLED THE ORDER) PURSUANT TO A NOTICE OF HEARING ON COMPLAINT AND ORDER
CONSOLIDATING CASES ISSUED ON NOVEMBER 6, 1973 BY THE ASSISTANT REGIONAL
DIRECTOR OF THE UNITED STATES DEPARTMENT OF LABOR, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, ATLANTA REGION.
ON JUNE 7, 1973 ISAIAH G. GILLINS (HEREIN CALLED GILLINS), FILED A
COMPLAINT AGAINST CHARLESTON NAVAL SHIPYARD, PRODUCTION DEPARTMENT,
CHARLESTON, SOUTH CAROLINA (HEREIN CALLED THE RESPONDENT). THE
COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND 7(D)(1)
OF THE ORDER BY REFUSING, ON APRIL 2, 1973, TO ALLOW GILLINS THE RIGHT
TO HAVE ORA MAUK REPRESENT HIM AT AN INVESTIGATIVE DISCUSSION WHICH
COULD RESULT IN DISCIPLINARY ACTION BEING TAKEN AGAINST THIS
COMPLAINANT.
ON AUGUST 2, 1973 ORA MAUK, (HEREIN CALLED MAUK) FILED A COMPLAINT
AGAINST SAID RESPONDENT, CHARLESTON NAVAL SHIPYARD. THIS COMPLAINT
ALLEGED THAT RESPONDENT VIOLATED SECTION 19(A)(1) OF THE ORDER BY
COMPELLING MAUK, ON MAY 24, 1973, TO USE TWO HOURS OF ANNUAL LEAVE TO
PROPERLY REPRESENT GILLINS UNDER SECTION 7(D)(1) OF THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JANUARY 29, 1974 AT
CHARLESTON, SOUTH CAROLINA. BOTH PARTIES WERE REPRESENTED AND AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AND
CROSS-EXAMINE WITNESSES. BRIEFS FILED WERE DULY CONSIDERED.
COMPLAINANT GILLINS CONTENDS HE WAS WRONGFULLY DENIED THE RIGHT TO
HAVE A REPRESENTATIVE PRESENT DURING AN INVESTIGATIVE DISCUSSION OF HIS
ACTIONS, AS AN EMPLOYEE, WHICH MANAGEMENT CONDUCTED ON APRIL 2, 1973.
IT IS MAINTAINED THAT THIS RIGHT IS ACCORDED HIM UNDER THE ORDER--
7(D)(1)-- AND ITS DENIAL IS VIOLATIVE OF 19(A)(1) OF THE ORDER.
COMPLAINANT MAUK INSISTS HE WAS ENTITLED TO USE TWO HOURS OFFICIAL
TIME ON MAY 2, 1973 TO LISTEN TO A TAPE RECORDING OF A MEETING HELD ON
THAT DATE TO RESOLVE AN UNFAIR LABOR PRACTICE CHARGE FILED BY GILLINS
AGAINST RESPONDENT. INSTEAD, MAUK WAS COMPELLED BY THE EMPLOYER HEREIN
TO USE ANNUAL LEAVE, AND HE INSISTS MANAGEMENT WAS MOTIVATED BY A DESIRE
TO PREVENT GILLINS FROM OBTAINING REPRESENTATION UNDER 7(D)(1) OF THE
ORDER. IT IS FURTHER URGED THAT, IN VIOLATION OF 19(A)(1) OF THE ORDER,
RESPONDENT'S REPRESENTATIVE F. G. CAIN, INDICATED TO EMPLOYEES THAT
MANAGEMENT VIEWED THEIR UNION WITH DISDAIN.
RESPONDENT, IN DENYING A VIOLATION OF 19(A)(1), ASSERTS AS FOLLOWS:
(1) SECTION 7(D)(1) OF THE ORDER CREATES NO RIGHTS ENFORCEABLE UNDER
19(A)(1); (2) IN THE PRIVATE SECTOR THE COURTS HAVE HELD THE EMPLOYEE
IS NOT ENTITLED TO UNION REPRESENTATION DURING AN INVESTIGATIVE
DISCUSSION; (3) UNDER ARTICLE 16 OF THE CONTRACT BETWEEN RESPONDENT AND
THE UNION REPRESENTING THE UNIT EMPLOYEES HEREIN GILLINS WAS NOT
ENTITLED TO REPRESENTATION ON APRIL 2, 1973; (4) NO PROVISION EXISTS
UNDER THE CONTRACT NOR IS THERE ANY REGULATION, PERMITTING AN EMPLOYEE
TO USE OFFICIAL TIME TO PREPARE A COMPLAINT AGAINST AN EMPLOYER.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN, AND DURING 1973, FEDERAL EMPLOYEES
METAL TRADES COUNCIL OF CHARLESTON WAS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ALL UNGRADED EMPLOYEES AT THE RESPONDENT'S SHIPYARD AT
CHARLESTON, SOUTH CAROLINA. BOTH GILLINS AND MAUK WERE INCLUDED AS
EMPLOYEES IN THE UNIT.
2. ARTICLE XVI, SECTION 1, ENTITLED "DISCIPLINARY ACTION", PROVIDES
IN PERTINENT PART AS FOLLOWS:
"PRIOR TO INITIATING A FORMAL DISCIPLINARY ACTION SUCH AS A LETTER OF
REPRIMAND OR SUSPENSION OF 30 CALENDAR DAYS OR LESS AGAINST AN
EMPLOYEE, A
PRELIMINARY INVESTIGATION WILL BE MADE BY THE IMMEDIATE SUPERVISOR OR
OTHER
MANAGEMENT OFFICIAL TO DOCUMENT THE FACTS AND TO DETERMINE WHETHER A
PRIMA
FACIE CASE EXISTS. THIS PRELIMINARY INVESTIGATION WILL NORMALLY
INCLUDE A
A PRIVATE DISCUSSION WITH THE EMPLOYEE IF HE IS IN A DUTY STATUS. IF
THE
FINDINGS OF THE PRELIMINARY INVESTIGATION INDICATE THAT FORMAL
DISCIPLINARY
ACTION MAY BE WARRANTED, AN INFORMAL INVESTIGATIVE DISCUSSION WILL BE
HELD
WITH THE EMPLOYEE IF HE IS OTHER THAN A TEMPORARY OR PROBATIONARY
EMPLOYEE
PRIOR TO ISSUANCE OF A DISCIPLINARY ACTION OR PROPOSED DISCIPLINARY
ACTION. IF THE EMPLOYEE SO DESIRES HE MAY HAVE A FELLOW EMPLOYEE
PRESENT AT
THIS DISCUSSION...."
3. GILLINS, AN APPRENTICE ELECTRONIC MECHANIC, HAS BEEN EMPLOYED BY
RESPONDENT FOR ABOUT TWO YEARS. ON FOUR OCCASIONS PRIOR TO MARCH 15,
1973 /1/ ERNEST A. RHODES, WHO WAS GILLINS' DAY SHIFT SUPERVISOR,
TALKED TO GILLINS REGARDING THE WEARING OF A COMB BY GILLINS IN HIS HAIR
WHILE AT WORK. RHODES EXPLAINED THAT THIS WAS A SAFETY HAZARD, AND
STATED THE EMPLOYEE COULD GET HURT IF THE COMB CAUGHT IN SOME EQUIPMENT.
IN EACH INSTANCE RHODES TOLD GILLINS NOT TO WEAR THE COMB, BUT THE
LATTER CONTINUED TO DO SO.
THE LAST OCCASION AT WHICH RHODES SPOKE TO GILLINS REGARDING THE COMB
TOOK PLACE ON MARCH 14. GILLINS COMMENTED IT WAS NOT A SAFETY HAZARD,
AND RHODES THEREUPON INFORMED GILLINS HE INTENDED TO "WRITE HIM UP." ON
THAT SAME DAY RHODES NOTIFIED F. G. CAIN, GENERAL FOREMAN II, SUPERVISOR
IN CHARGE OF MODULE MAINTENANCE FACILITY (ELECTRONICS), OF THE FACT THAT
GILLINS REFUSED TO DISCONTINUE WEARING THE COMB AFTER HAVING BEEN
ADMONISHED NOT TO WEAR IT DURING WORKING HOURS.
4. ON MARCH 8 GILLINS WORKED ON THE GRAVE YARD SHIFT AND WAS
SUPERVISED BY THOMAS MURRAY. HAVING MISPLACED HIS BADGE, GILLINS
TELEPHONED MURRAY BEFORE REPORTING FOR DUTY ON THAT DATE AND NOTIFIED
THE SUPERVISOR HE COULD NOT FIND IT BUT WOULD BE IN SHORTLY. GILLINS
DID NOT REPORT TO WORK THAT EVENING. WHEN HE APPEARED THE FOLLOWING
EVENING, MURRAY TOLD GILLINS HE HAD VIOLATED THE LEAVE REGULATIONS WHICH
HE READ TO THE EMPLOYEE. THE SUPERVISOR THEN REMARKED HE WOULD CONSIDER
THE MATTER AND ADVISE GILLINS LATER AS TO WHAT ACTION WOULD BE TAKEN.
SHORTLY THEREAFTER MURRAY NOTIFIED CAIN OF THE OCCURENCE, AND THE LATTER
SAID HE WOULD CONDUCT A PRELIMINARY INVESTIGATION OF THE INCIDENT.
5. AS A RESULT OF THE SEVERAL ADMONISHMENTS CONCERNING THE WEARING
OF A COMB IN HIS HAIR WHILE AT WORK, GILLINS FILED A GRIEVANCE ON MARCH
15 AGAINST RHODES FOR HARASSMENT. A MEETING TO DISCUSS THIS PARTICULAR
GRIEVANCE WAS HELD ON APRIL 2 AND WAS ATTENDED BY ORA MAUK, UNION
STEWARD, GILLINS, CAIN, AND HARRIS DEETS, PRODUCTION SUPERINTENDENT.
6. ON FRIDAY, MARCH 30, IN ACCORDANCE WITH INSTRUCTIONS FROM CAIN,
MURRAY TOLD GILLINS TO REPORT TO THE DAY SHIFT ON THE FOLLOWING MONDAY,
APRIL 2 FOR PRIVATE DISCUSSION WITH CAIN. GILLINS WAS INFORMED THAT
CAIN WOULD DISCUSS THE ALLEGED INFRACTION OF LEAVE REGULATIONS, AS WELL
AS DISOBEDIENCE OF A DIRECT ORDER FROM A SUPERVISOR, BY THIS EMPLOYEE.
7. UPON BEING SO INFORMED, GILLINS RETURNED LATER IN THE DAY AND
EXPLAINED TO ORA MAUK, UNION STEWARD, THE TWO "CHARGES" MANAGEMENT HAD
AGAINST HIM. IT WAS FEARED BY GILLINS THAT MANAGEMENT WOULD DECLARE HIS
PRODUCTION TO BE INSUFFICIENT. THEREFORE MAUK AND GILLINS WENT TO THE
SHOP PLANNING AREA ON MARCH 30 TO CHECK TROUBLE FIGURE REPORTS WHICH
SHOWED GILLINS' WORK RECORDS. AS THEY WERE EXAMINING THE RECORDS, CAIN
LEFT HIS OFFICE AND CONFRONTED BOTH COMPLAINANTS. MAUK EXPLAINED THAT
GILLINS ANTICIPATED A CHARGE MIGHT BE LEVELLED AGAINST HIM FOR LOW
PRODUCTION AND THEY WERE LOOKING AT THE FIGURES. DURING THE DISCUSSION
BETWEEN MAUK AND CAIN THE FORMER STATED HE WOULD BE THERE ON MONDAY,
APRIL 2 TO REPRESENT GILLINS. WHEREUPON CAIN REPLIED THAT GILLINS WOULD
NOT BE ALLOWED A REPRESENTATIVE AT THAT DISCUSSION.
8. AT 4:00 P.M. ON APRIL 2, SUBSEQUENT TO THE MEETING REGARDING THE
GILLINS' GRIEVANCE, RHODES CAME TO GILLINS' WORK AREA AND TOLD THE
EMPLOYEE THAT CAIN WANTED TO SEE HIM. GILLINS THEN STATED HE WOULD LIKE
MAUK TO BE THERE WITH HIM BUT RHODES REPLIED THIS WAS NOT PERMITTED.
WHEN GILLINS ARRIVED AT CAIN'S OFFICE HE ASKED IF HE COULD HAVE A
REPRESENTATIVE PRESENT. CAIN REFUSED, ATTEMPTING TO EXPLAIN THIS WAS A
PRIVATE DISCUSSION, WHICH DIFFERED FROM AN INVESTIGATIVE DISCUSSION, AND
THAT UNDER THE CONTRACT NO REPRESENTATION WAS PROVIDED FOR. CAIN
INFORMED THE EMPLOYEE THAT HE WANTED TO DISCUSS TWO MATTERS: (A) THE
WEARING OF A COMB BY GILLINS DESPITE INSTRUCTIONS NOT TO DO SO, WHICH
CONSTITUTED DISOBEDIENCE AND (B) INFRACTION BY GILLINS OF LEAVE
REGULATIONS BASED ON HIS FAILURE TO REPORT ON MARCH 8.
COMPLAINANT GILLINS TOLD CAIN THAT, IN RESPECT TO THE WEARING OF A
COMB IN HIS HAIR, HE DID SO FROM HABIT WHEN NO INTENTION OF DISREGARDING
INSTRUCTIONS. GILLINS REMARKED THAT WOMEN WEAR COMBS IN THEIR HAIR AND
HE FELT HE SHOULD BE ALLOWED TO DO SO ALSO. IN RESPECT TO THE POSSIBLE
INFRACTION BY HIM OF LEAVE REGULATIONS, GILLINS REFUSED TO DISCUSS THIS
MATTER WITHOUT A REPRESENTATIVE BEING PRESENT ON HIS BEHALF. CAIN
STATED HE WOULD CONTINUE WITH THE INVESTIGATION, AND THAT HE WOULD
THEREAFTER DECIDE WHETHER SUFFICIENT REASON AND BASIS EXISTED FOR
PROCEEDING FURTHER.
9. AFTER THE INVESTIGATION WAS COMPLETED AND AN EVALUATION MADE BY
CAIN, NO FURTHER PROCEEDINGS WERE TAKEN. NO DISCIPLINARY ACTION WAS
PURSUED AGAINST GILLINS.
10. ON MAY 2, A MEETING WAS HELD WITH MANAGEMENT TO RESOLVE THE
UNFAIR LABOR PRACTICE CHARGE FILED BY GILLINS. A TAPE RECORDING WAS
MADE OF THIS MEETING. ON MAY 24, AS THE REPRESENTATIVE OF GILLINS, MAUK
REQUESTED OFFICIAL TIME TO INVESTIGATE THIS CHARGE. RESPONDENT REFUSED
TO GRANT OFFICIAL TIME, BUT GRANTED, UPON REQUEST, TWO HOURS LEAVE TIME
TO MAUK TO LISTEN TO THE TAPE RECORDING OF THE MAY 2 MEETING.
11. CAIN TESTIFIED, AND I FIND, THAT MANAGEMENT HAS FOLLOWED A
PROCEDURE CONSISTENT WITH THE CONTRACTUAL PROVISIONS IN ARTICLE XVI WHEN
AN EMPLOYEE IS ACCUSED OF MISCONDUCT. IN ACCORDANCE THEREWITH A
PRELIMINARY INVESTIGATION IS MADE BY A SUPERVISOR AND THEN A REPORT MADE
TO THE NEXT LEVEL OF SUPERVISION. AS PART OF THE PRELIMINARY
INVESTIGATION TO DETERMINE WHETHER A PRIMA FACIE CASE EXISTS, A PRIVATE
DISCUSSION IS HELD WITH THE EMPLOYEE INVOLVED. THIS IS DONE TO
DETERMINE WHETHER THERE IS SUFFICIENT REASON TO PROCEED FURTHER WITH THE
MATTER. MOREOVER, THE EMPLOYEE IS GIVEN AN OPPORTUNITY TO GIVE ANY
INFORMATION WHICH WILL AID MANAGEMENT IN CONCLUDING WHETHER THERE IS
REASON TO PROCEED FURTHER. THE DISCUSSION WOULD BE BETWEEN THE EMPLOYEE
AND A PARTICULAR SUPERVISOR DESIGNATED BY CAIN, OR, IN SOME INSTANCES,
THE GENERAL FOREMAN WOULD DISCUSS THE MATTER WITH THE INDIVIDUAL. IN
THE EVENT A PRIMA FACIE CASE IS FOUND TO EXIST, AN INVESTIGATIVE
DISCUSSION TAKES PLACE, AND THE EMPLOYEE IS ENTITLED TO HAVE A
REPRESENTATIVE THEREAT IF HE SO REQUESTS. NO DISCIPLINARY ACTION TOWARD
THE EMPLOYEE IS TAKEN UNTIL THE SHOP HEAD CONDUCTS HIS INVESTIGATION.
12. MAUK TESTIFIED, AND I FIND, THAT HE REPRESENTS EMPLOYEES AT
TIMES AS THE UNION STEWARD, AND ON OTHER OCCASIONS HE REPRESENTS
INDIVIDUALS AS A FELLOW EMPLOYEE. SINCE MAUK DID NOT KNOW WHAT ACTION
MANAGEMENT MIGHT TAKE AGAINST GILLINS, HE COULD NOT STATE WHICH WOULD
HAVE BEEN THE BETTER WAY TO REPRESENT HIM. THE RECORD DOES REVEAL THAT
MAUK TOLD CAIN ON MARCH 30 HE WOULD BE AT THE DISCUSSION ON APRIL 2 AS A
REPRESENTATIVE OF GILLINS' OWN CHOICE.
13. ON THE BASIS OF THE FOREGOING AND THE RECORD TESTIMONY, I FIND
AND CONCLUDE THAT MAUK REQUESTED MANAGEMENT TO APPEAR AT THE PRIVATE
DISCUSSION SET FOR APRIL 2 AS GILLINS' PERSONAL REPRESENTATIVE AND NOT
IN HIS OFFICIAL CAPACITY AS UNION STEWARD; FURTHER, THAT GILLINS DID
NOT REQUEST UNION REPRESENTATION AT THAT DISCUSSION BUT MERELY ASKED TO
HAVE "A REPRESENTATIVE" PRESENT AT THE PRIVATE DISCUSSION ON APRIL 2.
THE CONTENTION BY COMPLAINANTS HEREIN THAT RESPONDENT VIOLATED
SECTION 7(D)(1) OF THE ORDER BY DENYING GILLINS REPRESENTATION ON APRIL
2 IS REJECTED. WHILE THERE IS NO DISPUTE THAT MANAGEMENT REFUSED TO
PERMIT A REPRESENTATIVE TO ATTEND THE DISCUSSION ON THAT DATE, THAT
SECTION DOES NOT PROVIDE ANY BASIS FOR FINDING A VIOLATION OF SECTION 19
OF THE ORDER. IT IS NOW CLEARLY ESTABLISHED THAT SECTION 7(D) CONFERS
NO RIGHTS UPON EMPLOYEES, ORGANIZATION OR ASSOCIATIONS ENFORCEABLE UNDER
SECTION 19. RATHER IS IT VIEWED AS DELINEATING THOSE INSTANCES IN WHICH
AN EMPLOYEE MAY CHOOSE A REPRESENTATIVE, OTHER THAN HIS EXCLUSIVE
REPRESENTATIVE, IN CERTAIN GRIEVANCES OR APPELLATE ACTIONS. CHARLESTON
NAVAL SHIPYARD, CHARLESTON, S.C., A/SLMR NO. 304; INTERNAL REVENUE
SERVICE, CHICAGO DISTRICT, A/SLMR NO. 279.
(1) IN THE CASE AT BAR THE UNION AND RESPONDENT HAVE, UNDER ARTICLE
XVI, SECTION 1 OF THE CONTRACT, SET FORTH AT WHICH STAGE AN EMPLOYEE MAY
HAVE A FELLOW EMPLOYEE PRESENT DURING DISCUSSIONS BETWEEN MANAGEMENT AND
THE EMPLOYEE. THIS SECTION PERTAINS TO DISCUSSIONS CONCERNING
MISCONDUCT ON THE PART OF EMPLOYEES, AND I AM NOT CONVINCED THE CONTRACT
DEROGATES FROM THE LANGUAGE IN 7(D)(1) RELATING TO THE CHOICE OF A
REPRESENTATIVE IN A GRIEVANCE OR APPELLATE ACTION. APART FROM WHATEVER
RIGHTS ARE CREATED BY THE CONTRACT-- THE VIOLATION OF WHICH MAY POSSIBLY
RESULT IN THE ENFORCEMENT THEREOF UNDER THE ORDER-- THE RECORD REFLECTS
THAT THE CONTRACTUAL PROCEDURE WITH RESPECT TO SELECTING A
FELLOW-EMPLOYEE REPRESENTATIVE AT DISCUSSIONS WITH EMPLOYEES WAS IN FACT
FOLLOWED. THUS, GILLINS WAS CALLED TO A PRELIMINARY DISCUSSION,
DESCRIBED AS "PRIVATE" IN THE AGREEMENT, CONDUCTED TO DETERMINE WHETHER
A PRIMA FACIE CASE EXISTED FOR FURTHER INVESTIGATION. IT IS EXPRESSLY
PROVIDED THAT THE EMPLOYEE IS ENTITLED TO HAVE A FELLOW EMPLOYEE PRESENT
AT THE NEXT STEP, I.E., THE INFORMAL INVESTIGATIVE DISCUSSION PRIOR TO
ANY PROPOSED DISCIPLINARY ACTION BEING TAKEN. THE CLEAR IMPLICATION OF
THE LANGUAGE IN ARTICLE XVI, SECTION 1 OF THE CONTRACT IS THAT NO
EMPLOYEE, AS GILLINS, IS ENTITLED TO A REPRESENTATIVE AT THE EARLIER
STAGE INVOLVING A PRIVATE SESSION WITH THE SUPERVISOR. ACCORDINGLY,
RESPONDENT'S REFUSAL TO PERMIT MAUK TO REPRESENT GILLINS, AS HIS
PERSONAL REPRESENTATIVE, AT THE APRIL 2 DISCUSSION WITH CAIN WAS IN
CONFORMITY WITH THE AGREEMENT. SINCE RESPONDENT'S CONDUCT HEREIN WAS
CONSISTENT WITH THE NEGOTIATED AGREEMENT, I CONCLUDE IT DID NOT
INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS
ASSURED BY THE ORDER. SEE CHARLESTON NAVAL SHIPYARD, SUPRA. I
THEREFORE CONCLUDE THAT MANAGEMENT'S DENIAL TO GILLINS OF HIS REQUEST
FOR A REPRESENTATIVE AT SAID DISCUSSION DOES NOT WARRANT FINDING A
VIOLATION OF 19(A)(1) OF THE ORDER.
(2) ASSUMING, ARGUENDO, THAT GILLINS REQUESTED MAUK'S PRESENCE IN THE
LATTER'S OFFICIAL CAPACITY, AND THAT THE STEWARD ASKED TO BE PRESENT AS
A UNION REPRESENTATIVE, I AM NOT PERSUADED THAT RESPONDENT'S DENIAL
THEREOF WOULD NEVERTHELESS BE VIOLATIVE OF THE ORDER.
SECTION 10(E) OF THE ORDER CONFERS A RIGHT ON AN 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 FLOWS TO THE EMPLOYEES
IN THE UNIT. SEE U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR
POOL, FT. WAINWRIGHT, ALASKA, A/SLMR NO. 278. THE RIGHT IS THUS
RESTRICTED SO AS NOT TO EXIST WITH RESPECT TO INFORMAL 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 THE EMPLOYEE'S 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 19(A)(1) WAS FOUND BY VIRTUE OF A
DENIAL OF REPRESENTATION THEREAT.
IN THE CASE AT BAR THE DISCUSSIONS BETWEEN GILLINS AND CAIN ON APRIL
2 LIKEWISE INVOLVED SHORTCOMINGS PECULIAR TO THIS EMPLOYEE, AND WERE
HELD PRIOR TO THE INVESTIGATIVE DISCUSSIONS. IT IS APPARENT THIS TYPE
SESSION WAS NEVER INTENDED TO BE FORMAL BUT DESIGNED TO CONSTITUTE A
PRELIMINARY MEETING BEFORE ANY DISCIPLINARY CONSIDERATIONS. TO THIS
EXTENT THE DISCUSSION WAS STRIKINGLY SIMILAR TO THE COUNSELLING SESSIONS
CALLED IN THE TEXAS AIR NATIONAL GUARD CASE, SUPRA. ACCORDINGLY, I
WOULD CONCLUDE THAT THE DISCUSSION ON APRIL 2 WAS INFORMAL IN NATURE,
AND A DENIAL OF UNION REPRESENTATION THEREAT WOULD NOT SUSTAIN A
VIOLATION OF 19(A)(1) BASED ON SECTION 10(E) OF THE ORDER.
ON THE BASIS OF THE FOREGOING AND THE RECORD AS A WHOLE, I CONCLUDE
THAT SECTION 7(A)(1) AFFORDS NO BASIS FOR FINDING A VIOLATION HEREIN;
THAT RESPONDENT'S ACTIONS IN DENYING GILLINS A FELLOW REPRESENTATIVE ON
APRIL 2 WERE CONSISTENT WITH THE CONTRACT BETWEEN RESPONDENT AND THE
UNION HEREIN; AND THAT, IN ANY EVENT, THE DISCUSSION WAS INFORMAL
RATHER THAN A FORMAL ONE-- WHICH IS NECESSARY TO SUSTAIN A RIGHT UNDER
10(E) OF THE ORDER-- AND A DENIAL OF UNION REPRESENTATION TO GILLINS
WOULD THUS NOT SUPPORT A VIOLATION UNDER SECTION 19(A) OF THE ORDER.
WHILE THE REGULATIONS NOW PROVIDE FOR GRANTING OFFICIAL LEAVE TO
CERTAIN EMPLOYEES WHO TESTIFY AT A HEARING, THERE IS NO PROVISION
THEREIN, NOR UNDER THE ORDER, AWARDING SUCH LEAVE TO UNION
REPRESENTATIVES TO INVESTIGATE EMPLOYEES' CHARGES. /2/ NEITHER DO I
CONCLUDE THAT REQUIRING SUCH REPRESENTATIVE TO TAKE ANNUAL LEAVE,
WITHOUT MORE, CONSTITUTES INTERFERENCE OR RESTRAINT UNDER THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS THE
UNDERSIGNED RECOMMENDS THAT COMPLAINTS IN CASE NO. 40-4911(CA) AND CASE
NO. 40-4971(CA) AGAINST RESPONDENT HEREIN BE DISMISSED.
DATED: APRIL 30, 1974
WASHINGTON, D.C.
/1/ ALL DATES HEREINAFTER MENTIONED, UNLESS INDICATED OTHERWISE, ARE
IN 1973.
/2/ SEE ALSO DEPT. OF THE TREASURY, INTERNAL REVENUE SERVICE, FRESNO
SERVICE CENTER, FRESNO, CALIF., A/SLMR NO. 309.
4 A/SLMR 402; P. 417; CASE NO. 62-3658(CA); JUNE 24, 1974.
U.S. DEPARTMENT OF INTERIOR,
NATIONAL PARK SERVICE,
JEFFERSON NATIONAL EXPANSION MEMORIAL,
ST. LOUIS, MISSOURI
A/SLMR NO. 402
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED AGAINST
U.S. DEPARTMENT OF INTERIOR, NATIONAL PARK SERVICE, JEFFERSON NATIONAL
EXPANSION MEMORIAL, ST. LOUIS, MISSOURI (RESPONDENT), BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (COMPLAINANT), ALLEGING THAT THE
RESPONDENT, DURING A UNION MEMBERSHIP DRIVE, HARASSED AND INTIMIDATED AN
EMPLOYEE FOR EXERCISING HER LEGAL RIGHTS IN ASSISTING A LABOR
ORGANIZATION IN VIOLATION OF SECTION 19(A)(1) AND (2) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. THUS, HE FOUND THAT THE RESPONDENT'S TREATMENT OF THE
EMPLOYEE INVOLVED, INSOFAR AS JOB ASSIGNMENTS WERE CONCERNED, DID NOT
CONSTITUTE HARASSMENT AND INTIMIDATION IN VIOLATION OF THE ORDER.
FURTHER, HE CONCLUDED THAT THE ALLEGED DISCRIMINATEE'S LACK OF ROTATION
AMONG JOBS WAS FULLY EXPLAINED BY THE PHYSICAL RESTRICTIONS IMPOSED BY
HERSELF AND HER DOCTORS. IN CONNECTION WITH THE ALLEGATION THAT AN
OFFER OF PROMOTION WAS WITHDRAWN IMPROPERLY, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT EVEN IF THE RESPONDENT HAD OFFERED AND THEN WITHHELD
THE PROMOTIONS WITH RESPECT TO THE ALLEGED DISCRIMINATEE, THERE WAS
INSUFFICIENT EVIDENCE TO ESTABLISH THAT SUCH ACTION CONSTITUTED A
VIOLATION OF THE ORDER.
BASED ON HIS CREDIBILITY RESOLUTIONS AND THE LACK OF EVIDENCE OF
ANTI-UNION MOTIVATION, THE ADMINISTRATIVE LAW JUDGE FURTHER CONCLUDED
THAT OTHER ACTS OF ALLEGED MISCONDUCT, SUCH AS A SUPERVISOR'S REQUEST
THAT AN EMPLOYEE OBTAIN FOR THE SUPERVISOR "AN APPLICATION TO JOIN THE
UNION," A STATEMENT TO THE ALLEGED DISCRIMINATEE THAT SHE COULD NOT TAKE
PERSONAL BELONGINGS INTO THE PROJECTION ROOM, AND A SUPERVISOR'S
RECORDING OF HIS OWN REMARKS AT A REGULAR MEETING HELD WITH EMPLOYEES,
WERE NOT VIOLATIVE OF THE ORDER.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY 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 INTERIOR,
NATIONAL PARK SERVICE,
JEFFERSON NATIONAL EXPANSION MEMORIAL,
ST. LOUIS, MISSOURI
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
ON MARCH 22, 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 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 PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY
ADOPT THE FINDINGS, /1/ CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 62-3658(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 24, 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, AT FOOTNOTE 1.
IN THE MATTER OF
U.S. DEPARTMENT OF INTERIOR,
NATIONAL PARK SERVICE,
JEFFERSON NATIONAL EXPANSION MEMORIAL
ST. LOUIS, MISSOURI
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
JOHN D. TREZISE, ESQ.
OFFICE OF THE SOLICITOR,
DEPARTMENT OF THE INTERIOR
WASHINGTON, D.C. 20240
MR. KARL H. HANNA
NATIONAL PARK SERVICE,
ROOM 4141, 1100 L STREET, N.W.
WASHINGTON, D.C. 20240
MS. BILLIE WERKING
NATIONAL REPRESENTATIVE,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
2818 HOLLYWOOD BLVD.
CLARKSVILLE, INDIANA 47130
MR. GEORGE R. STEWART
HOUSE SPRINGS, MISSOURI
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 AUGUST 16, 1973,
BY THE ACTING REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, KANSAS CITY REGION, BASED ON A COMPLAINT FILED BY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES (HEREIN CALLED THE COMPLAINANT
OR THE UNION) AGAINST U.S. DEPARTMENT OF INTERIOR, NATIONAL PARK
SERVICE, JEFFERSON NATIONAL EXPANSION MEMORIAL, ST. LOUIS, MISSOURI
(HEREIN CALLED THE RESPONDENT). THE COMPLAINT ALLEGES THAT RESPONDENT
VIOLATED SECTION 19(A), SUBSECTIONS (1) AND (2) OF THE ORDER.
SPECIFICALLY, THE COMPLAINT STATES THAT "(D)URING A MEMBERSHIP DRIVE AT
THE ACTIVITY STARTING JANUARY 30, 1973, AND CONTINUING FOR 10 WORKING
DAYS MS. NORMA MORGAN AN EMPLOYEE WAS HARRASSED AND INTIMIDATED FOR
EXERCISING HER LEGAL RIGHTS IN ASSISTING A LABOR ORGANIZATION . . . "
A HEARING WAS HELD BEFORE THE UNDERSIGNED DULY DESIGNATED
ADMINISTRATIVE LAW JUDGE ON OCTOBER 23 AND 24, 1973, IN ST. LOUIS,
MISSOURI. 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 NONE WAS RECEIVED.
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:
BACKGROUND
NORMA MORGAN WAS FIRST EMPLOYED BY THE NATIONAL PARK SERVICE IN THE
LATTER PART OF 1969. SHE WAS FIRST EMPLOYED AS AN INFORMATION
RECEPTIONIST, BUT WAS LATER RECLASSIFIED TO A PARK TECHNICIAN GS-4. SHE
WAS ASSIGNED TO THE JEFFERSON NATIONAL EXPANSION MEMORIAL IN ST. LOUIS,
MISSOURI. ACTION WAS TAKEN BY RESPONDENT TO TRANSFER MS. MORGAN TO A
DIFFERENT LOCATION, NAMELY, WILSON CREEK, BUT THIS ACTION WAS ABORTED
THROUGH THE PROCESSING OF AN ADVERSE ACTION APPEAL BY MS. MORGAN. THE
ADVERSE ACTION CONSISTED OF RESPONDENT'S NOTIFICATION OF INTENT TO
REMOVE BECAUSE OF FAILURE TO REPORT AT THE NEW LOCATION, WILSON'S CREEK.
A DETERMINATION WAS MADE THAT THE ADVERSE ACTION WAS TAKEN PRIOR TO THE
REPORTING DATE, AND AS A RESULT RESPONDENT WAS ORDERED TO REINSTATE MS.
MORGAN TO HER POSITION AT THE JEFFERSON NATIONAL EXPANSION MEMORIAL IN
ST. LOUIS. SHE RETURNED TO THIS POSITION IN AUGUST OF 1972. /1/
THE ALLEGED UNFAIR LABOR PRACTICES
ON JANUARY 30, 1973, MS. BILLIE WERKING, A NATIONAL REPRESENTATIVE OF
THE UNION, ARRIVED AT RESPONDENT'S ACTIVITY IN ST. LOUIS, FOR THE
PURPOSE OF ENGAGING IN AN ORGANIZATIONAL DRIVE AMONG THE EMPLOYEES.
RESPONDENT HAD NOTICE OF THIS DRIVE AND HAD NOTIFIED ITS EMPLOYEES.
SHORTLY AFTER MS. WERKING'S ARRIVAL, SUPERVISORY PARK TECHNICIAN EDWIN
F. ECKERT INTRODUCED HER TO MS. NORMA MORGAN, AT WHICH TIME HE ASKED MS.
MORGAN TO TAKE MS. WERKING TO THE AREA ASSIGNED FOR HER USE. MS. MORGAN
AND MS. WERKING HAD NEVER MET BEFORE THAT TIME. THE UNION ALLEGES IN
ITS COMPLAINT THAT RESPONDENT FOR THE NEXT TEN DAYS HARASSED AND
INTIMIDATED MS. MORGAN BECAUSE SHE ASSISTED THE UNION. WHILE THE
COMPLAINT IS NOT SPECIFIC, EVIDENCE ADDUCED AT THE HEARING INDICATES
THAT THE ALLEGED HARRASSMENT AND INTIMIDATION RELATES TO (1) JOB
ASSIGNMENTS; (2) REFUSING TO PROMOTE AFTER PROMISING SUCH PROMOTION;
AND (3) OTHER CONDUCT DESIGNED TO DEMEAN MS. MORGAN OR THE UNION. WHILE
NOT ALL OCCURRENCES APPARENTLY RELIED ON BY COMPLAINANT TOOK PLACE
DURING THE 10-DAY PERIOD SET OUT IN THE COMPLAINT, THEY WILL NONETHELESS
BE DISCUSSED BELOW:
1. JOB ASSIGNMENTS
RESPONDENT IS RESPONSIBLE FOR THE OPERATION OF THE JEFFERSON NATIONAL
EXPANSION MEMORIAL, LOCATED ON THE WEST BANK OF THE MISSISSIPPI RIVER IN
ST. LOUIS, MISSOURI. THE MEMORIAL CONSISTS CHIEFLY OF THE ARCH, A
STAINLESS STEEL HAIR-PIN-SHAPED STRUCTURE RISING SOME 640 FT AND HOUSING
SEVERAL AREAS OPEN TO THE PUBLIC, INCLUDING A PROJECTION ROOM IN THE
LOWER AREA AND AN OBSERVATION AREA AT THE VERY TOP OF THE STRUCTURE.
ALSO INCLUDED IN RESPONDENT'S OPERATIONS IS A NEARBY OLD COURTHOUSE,
OPEN TO THE PUBLIC AS A SORT OF MUSEUM AND HOUSING DISPLAYS RELATING TO
THE DEVELOPMENT OF THE WEST. THE ARCH IS SOMETIMES REFERRED TO AS THE
GATEWAY TO THE WEST.
RESPONDENT'S OPERATIONS INVOLVED HEREIN WERE AT ALL TIMES MATERIAL
UNDER THE GENERAL SUPERVISION OF SUPERINTENDENT IVAN PARKER. THE
DAY-TO-DAY OPERATIONS INVOLVED HEREIN WERE THE RESPONSIBILITY OF CHARLES
A. ROSS, CHIEF, INTERPRETATION AND RESOURCES MANAGEMENT JEFFERSON
NATIONAL EXPANSION MEMORIAL. ASSISTING HIM WAS EDWIN F. ECKERT, WHO
DURING THE TIMES MATERIAL HEREIN WAS CLASSIFIED AS SUPERVISORY PARK
TECHNICIAN, GS-5, AND WHO SUPERVISED A CADRE OF PARK TECHNICIANS, ONE OF
WHOM WAS NORMA MORGAN. PARK TECHNICIANS ARE ASSIGNED TO VARIOUS
LOCATIONS, INCLUDING FOUR LOCATIONS AT THE STREET LEVEL OF THE ARCH, THE
OBSERVATION AREA AT THE TOP, THE PROJECTION ROOM, AND VARIOUS LOCATIONS
IN THE MUSEUM AREA OF THE OLD COURTHOUSE. THESE EMPLOYEES WEAR UNIFORMS
AND COME IN CONTACT WITH THE PUBLIC, SPECIFICALLY THOSE VISITING THE
JEFFERSON NATIONAL EXPANSION MEMORIAL. DUTIES INCLUDE GUIDED TOURS OF
THE AREA, EXPLANATIONS AND INTERPRETATIONS OF THE EXHIBITS AND THE
HISTORY INVOLVED IN THE THEME PRESENTED. THEY ALSO OPERATE MOVIE
PROJECTORS AND ASSIST IN OTHER AUDIO-VISUAL PROGRAMS. IN ADDITION THERE
IS ALSO A CADRE OF VOLUNTEERS IN PARKS (VIPS), MOST OF WHOM ARE ASSIGNED
TO LOCATIONS IN THE OLD COURTHOUSE.
RESPONDENT ROTATED ASSIGNMENTS AMONG THE PARK TECHNICIANS IN ORDER TO
ADD VARIETY TO THE JOB AND THUS REDUCE BOREDOM AND ALSO TO GIVE WIDE
EXPERIENCE TO ALL, SO THAT ALL POSITIONS WOULD ALWAYS BE COVERED. THIS
MOBILITY IS PARTICULARLY IMPORTANT SINCE THE FACILITIES ARE OPEN TO THE
PUBLIC SEVEN DAYS A WEEK AND THE NORMAL TOUR OF DUTY FOR THE PARK
TECHNICIANS IS 50 HRS. PER WEEK.
FROM THE TIME NORMA MORGAN WAS REINSTATED TO HER POSITION IN AUGUST
1972, SHE KEPT DETAILED NOTES OF WHAT TRANSPIRED AT HER PLACE OF WORK,
PARTICULARLY AS IT RELATED TO HER. THIS WAS DONE AT THE SUGGESTION OF
THE UNION, AND DURING THE HEARING HEREIN MS. MORGAN REFERRED OFTEN TO
THESE NOTES DURING HER TESTIMONY. ONE OF HER COMPLAINTS WAS THAT SHE WAS
NOT ROTATED AS OTHER WERE, AND IT IS THE UNION'S CONTENTION THAT THIS
DISPARATE TREATMENT WAS ACCORDED MS. MORGAN BECAUSE OF HER UNION
ACTIVITY. RESPONDENT ADMITS THAT MS. MORGAN WAS NOT ROTATED AS MUCH AS
OTHERS BUT POINTS TO THE FACT THAT THERE WERE CERTAIN ASSIGNMENTS SHE
COULD NOT PERFORM. THUS, AFTER WORKING AWHILE IN THE WOOL ROOM, A
DISPLAY IN THE OLD COURTHOUSE WHERE WOOL IS MADE FROM THE FLEECE OF
SHEEP IN A DEMONSTRATION TO THE PUBLIC, MS. MORGAN COMPLAINED THAT SHE
WAS ALLERGIC TO THE WOOL AND PRODUCED A DOCTOR'S CERTIFICATE TO THAT
EFFECT, WHICH SUGGESTED SHE NOT BE ASSIGNED TO THAT LOCATION.
RESPONDENT COMPLIED. WHILE MS. MORGAN WAS NEVER ASSIGNED TO THE FUR
ROOM, A ROOM IN THE OLD COURTHOUSE DISPLAYING FURS OF THE TYPE CARRIED
BY FUR TRADERS IN THE EARLY DAYS WHEN ST. LOUIS WAS DEVELOPING AS A
TRADING CENTER, THERE IS SOME SUGGESTION THAT NORMA MORGAN'S ALLERGY AND
SINUS CONDITION WOULD HAVE CONTRAINDICATED SUCH ASSIGNMENT, AT LEAST ON
ANY REGULAR BASIS. MS. MORGAN WAS ASSIGNED TO OTHER AREAS, INCLUDING
THE OBSERVATION ROOM AT THE TOP OF THE ARCH, UNTIL SHE COMPLAINED OF A
PROBLEM WITH HER INNER EAR. SUCH ASSIGNMENTS CEASED WHEN DOCTORS'
STATEMENT WERE OBTAINED TO THE EFFECT THAT MS. MORGAN SUFFERED FROM
VERTIGO AND MENIERE'S DISEASE.
THUS IT WAS THAT MS. MORGAN WAS NOT ROTATED IN ASSIGNMENTS AS MUCH AS
OTHERS, FOR NONE OTHER HAD SUCH MEDICAL RESTRICTIONS. AND SO AS A
NATURAL CONSEQUENCE OF THE SYSTEM OF ASSIGNMENT WITH ROTATION SHE FOUND
HERSELF IN CERTAIN LOCATIONS, SUCH AS THE PROJECTION ROOM OR ENTRANCE TO
THE RAMPS, MORE OFTEN THAN OTHERS. BUT INSOFAR AS THE PROJECTION ROOM
ASSIGNMENT WAS CONCERNED, MS. MORGAN SOUGHT SUCH WORK AND WAS EAGER TO
LEARN AND HOPED FOR A PERMANENT ASSIGNMENT IN THAT AREA, ALBEIT AT A
HIGHER GRADE. AND AS FOR THE ASSIGNMENT TO THE LOCATION AT THE ENTRANCE
TO THE RAMPS, IN ANSWER TO A QUESTION AS TO WHETHER SHE CONSIDERED IT A
GOOD OR BAD ASSIGNMENT, MS. MORGAN REPLIED:
WELL, UNLIKE MANY OF THE OTHER EMPLOYEES, I DON'T THINK THERE IS ANY
BAD JOB
THERE. (TR. 55)
ALTHOUGH MS. MORGAN COMPLAINED OF NOT BEING ROTATED, SHE ALSO
COMPLAINED OF TOO MUCH MOVEMENT. THUS THE FOLLOWING COLLOQUY TOOK PLACE
AT THE HEARING:
Q. (BY MS. WERKING, UNION REPRESENTATIVE) - HAVE YOU EVER BEEN ASKED
TO GO TO THE
COURTHOUSE FROM THE ARCH TO WORK, WALKED UP AND BEEN TOLD TO RETURN,
THAT IT WAS A MISTAKE?
A. (BY MS. MORGAN) - ON ONE DAY I WENT UP AND BACK SIX TIMES, AND IN
PASSING MR. WILKINSON
REMARKED TO ME, "THIS IS A GODDAMNED RACE TRACK HERE."
Q. WHEN YOU REPORTED TO THE COURTHOUSE, WHO APPROACHED YOU AND TOLD
YOU TO RETURN TO THE
ARCH, OR VICE VERSA?
A. MR. ROSS HAD TOLD THEM, I HAD JUST GOTTEN THERE, I HADN'T EVEN
TAKE MY COAT OFF, AND
MR. ROSS HAD CALLED THE GIRL AND TOLD HER TO SEND ME BACK TO THE ARCH
AND I NO MORE GOT BACK
TO THE ARCH THAN THEY TOLD ME NOT TO TAKE MY COAT OFF, WILKERSON TOLD
ME NOT TO TAKE MY COAT
OFF, BUT THAT I WAS TO GO BACK UP TO THE COURTHOUSE. WHEN I GOT BACK
TO THE COURTHOUSE THEY
SEND ME BACK DOWN TO THE ARCH. (TR. 181-182)
ALTHOUGH NO BRIEF WAS SUBMITTED AND ORAL ARGUMENT WAS WAIVED,
PRESUMABLY THE UNION WOULD ARGUE THAT RESPONDENT'S TREATMENT OF MS.
MORGAN INSOFAR AS JOB ASSIGNMENTS WERE CONCERNED CONSTITUTED HARRASSMENT
AND INTIMIDATION IN VIOLATION OF SECTION 19(A), SUBSECTIONS (1) & (2) OF
THE ORDER. BUT THE LACK OF ROTATION IS FULLY EXPLAINED BY THE PHYSICAL
RESTRICTIONS IMPOSED ON MS. MORGAN, NOT BY RESPONDENT BUT BY HERSELF AND
HER DOCTORS. AND THE INSTANCES OF ERRATIC MOVEMENT, SEEMINGLY
UNEXPLAINED AND PERHAPS INEFFICIENT, ARE INSUFFICIENT TO ESTABLISH A
VIOLATION OF THE ORDER, PARTICULARLY IN THE ABSENCE OF ANY COGENT
EVIDENCE TO ESTABLISH ANY ILLEGAL MOTIVE. I FIND AND CONCLUDE,
THEREFORE, THAT COMPLAINANT HAS FAILED TO ESTABLISH THAT RESPONDENT
VIOLATED ANY PROVISIONS OF THE ORDER INSOFAR AS JOB ASSIGNMENTS WERE
CONCERNED.
2. THE REFUSAL TO PROMOTE
ALTHOUGH THE COMPLAINT MAKES NO SPECIFIC REFERENCE TO A PROMISE OR
REFUSAL TO PROMOTE, MS. WERKING, UNION REPRESENTATIVE, STATED AT THE
HEARING:
IN OUR CHARGE WE HAVE ATTEMPTED TO PROVE THAT NORMA MORGAN WAS
PROMISED A GS-5 AND DENIED
IT. (TR. 159)
EVIDENCE WAS ALLOWED ON THIS POINT, SINCE A REFUSAL TO PROMOTE AFTER
A PROMISE COULD CONCEIVABLY CONSTITUTE HARRASSMENT AND INTIMIDATION AS
ALLEGED IN THE COMPLAINT. THERE IS EVIDENCE THAT RESPONDENT SOUGHT AN
ALLOCATION OF A GS-5 OR GS-7 POSITION AS PROJECTIONIST, AND IN THIS
CONNECTION MR. ROSS HAD INDICATED TO THE PARK TECHNICIANS THAT HE
THOUGHT THE POSITION SHOULD GO TO A PARK TECHNICIAN. ACCORDING TO NORMA
MORGAN, MR. ROSS STATED TO HER AROUND OCTOBER 1972:
. . . I'M GOING TO PUT YOU IN THE PROJECTION BOOTH. I HAVE ALREADY
PUT IN FOR A GS-5 AND
GS-7 . . . I WOULD LIKE FOR YOU TO HAVE THE GS-5 UP THERE. I THINK
YOU DESERVE IT. ALL YOU
HAVE TO DO IS TO LEARN HOW TO RUN THOSE 35 MM MACHINES. NOW, ECKERT
IS GOING TO GO DOWN WITH
YOU TOMORROW AND HE IS GOING TO SHOW YOU HOW TO RUN THE MACHINE. IF
YOU CAN LEARN TO RUN THE
MACHINE, THE JOB IS YOURS.
THE FOLLOWING DAY, MR. ECKERT, WHO HAD HAD ONLY FOUR HOURS OF
TRAINING HIMSELF, TAUGHT MORGAN PRESUMABLY ALL HE KNEW. "FROM THERE ON
IN," TESTIFIED MS. MORGAN, "I JUST READ THE MANUALS AND WORKED ON IT AS
BEST I COULD. I DID GET THE MACHINES RUNNING WELL. I NEVER WAS TRAINED
ON HOW TO MAINTAIN THOSE MACHINES."
MR. ROSS DID NOT DENY THAT HE HELD OUT HOPE FOR A GS-5 PROJECTIONIST
RATING, BUT STATED IT WAS OPEN TO ANYONE WHO COULD QUALIFY. "IT DID NOT
ONLY PERTAIN TO NORMA MORGAN," HE TESTIFIED. "IT PERTAINED TO ALL
PEOPLE IN THE DIVISION." THIS IS SUPPORTED BY THE TESTIMONY OF
COMPLAINANT'S WITNESS, BRENT ALLEN, WHO TESTIFIED THAT ROSS MENTIONED
THIS HIGHER RATING FOR A PROJECTIONIST "AT EVERY MEETING . . . WHEN WE
ASKED HIM ABOUT IT." THE POSITION WAS EVENTUALLY FILLED BY THE HIRING OF
A WAGE BOARD EMPLOYEE (BLUE COLLAR) WHO WAS TRAINED IN THE MAINTENANCE
OF THE PROJECTION ROOM EQUIPMENT.
THERE WAS SOME SUGGESTION BY COMPLAINANT AT THE HEARING THAT JOBS
WERE NOT PROPERLY POSTED OR THAT PRE-SELECTION WAS ENGAGED IN.
RESPONDENT, HOWEVER, ADDUCED TESTIMONY AND INTRODUCED DOCUMENTS
ATTESTING TO THE FACT THAT POSITIONS IN WHICH NORMA MORGAN INDICATED AN
INTEREST WERE PROPERLY POSTED AND SELECTION WAS MADE IN ACCORDANCE WITH
PRESCRIBED RULES AND PROCEDURES. THIS EVIDENCE WAS NOT CONTRADICTED
EXCEPT BY BARE ASSERTIONS OF BELIEF OF IRREGULARITIES. THUS, RELIABLE
EVIDENCE SHOWS THAT MS. MORGAN APPLIED FOR PROMOTION FROM INFORMATION
RECEPTIONIST, GS-4, TO PARK TECHNICIAN, GS-5, UNDER A VACANCY
ANNOUNCEMENT ISSUED AND OPEN DURING THE PERIOD JANUARY 26, 1970, THROUGH
FEBRUARY 9, 1970, AND REOPENED DURING THE PERIOD MARCH 17, 1970, THROUGH
MARCH 27, 1970. MS. MORGAN WAS NOT QUALIFIED FOR THE PROMOTION AT THAT
TIME. THE CIVIL SERVICE COMMISSION'S QUALIFICATION STANDARDS FOR PARK
TECHNICIAN, GS-5, REQUIRED 12 MONTHS OF SPECIALIZED EXPERIENCE, AND MS.
MORGAN HAD TO HER CREDIT ONLY 4 MONTHS OF SUCH EXPERIENCE.
MS. MORGAN'S NAME WAS CERTIFIED ON A PROMOTION CERTIFICATE ISSUED
OCTOBER 30, 1972, AS ELIGIBLE FOR SUPERVISORY PARK TECHNICIAN, GS-5, AT
JEFFERSON NATIONAL EXPANSION MEMORIAL. HER NAME WAS INCLUDED WITH THE
NAMES OF THREE OTHER NATIONAL PARK SERVICES EMPLOYEES. MR. EDWIN F.
ECKERT WAS SELECTED FROM THE CERTIFICATE FOR THE PROMOTION.
MS. MORGAN LATER APPLIED FOR PROMOTION TO SUPERVISORY PARK
TECHNICIAN, GS-7, UNDER A VACANCY ANNOUNCEMENT ISSUED AND OPEN DURING
THE PERIOD JULY 16, 1973, THROUGH JULY 30, 1973. THE CIVIL SERVICE
COMMISSION'S QUALIFICATION STANDARDS FOR PARK TECHNICIAN, GS-7, REQUIRE
THAT THE INCUMBENT HAVE AT LEAST ONE YEAR OF SPECIALIZED EXPERIENCE AT
THE GS-6 LEVEL OR AT LEAST 2 YEARS AT THE GS-5 LEVEL. MS. MORGAN HAD NO
SPECIALIZED EXPERIENCE AT EITHER THE GS-6 OR GS-5 LEVEL. HER
SPECIALIZED EXPERIENCE HAD BEEN AT THE GS-4 LEVEL, AND, THEREFORE, SHE
WAS NOT QUALIFIED FOR THE PROMOTION.
CONSIDERING ALL THE EVIDENCE, THEN, I FIND AND CONCLUDE THAT THE
RECORD DOES NOT SUPPORT A FINDING THAT RESPONDENT VIOLATED ANY
PROVISIONS OF THE ORDER BY PROMISING AND/OR REFUSING OR WITHHOLDING ANY
PROMOTION FROM NORMA MORGAN. INDEED, ASSUMING, ARGUENDO, THAT
RESPONDENT PROMISED MS. MORGAN A PROMOTION AND THEN RENEGED ON THAT
PROMISE, THERE IS INSUFFICIENT EVIDENCE TO WARRANT A FINDING THAT SUCH
ACTION CONSTITUTES A VIOLATION OF SEC. 19, SUBSECTIONS (1) AND (2) OF
THE ORDER AS ALLEGED IN THE COMPLAINT.
3. OTHER CONDUCT BY RESPONDENT
MUCH WAS MADE AT THE HEARING, BOTH BY COMPLAINANT AND RESPONDENT,
ABOUT AN INCIDENT WHEREIN MR. ROSS, AN ADMITTED SUPERVISOR, ASKED MS.
MORGAN TO PROCURE FOR HIM AN APPLICATION FOR MEMBERSHIP IN THE UNION.
APPARENTLY, IT IS THIS INCIDENT WHICH THE COMPLAINT REFERS TO WHEN IT
STATES, " . . . SHE (MORGAN) WAS INTIMIDATED BY MR. ROSS IN THE PRESENCE
OF HER FELLOW WORKERS WHEN HE REFERRED TO THE UNION AS 'YOUR UNION'."
ACCORDING TO MORGAN'S TESTIMONY, AT THE CONCLUSION OF A STAFF
MEETING, PRESIDED OVER BY ROSS, ROSS STATED TO MORGAN IN THE PRESENCE OF
OTHER EMPLOYEES, "NOW, NORMA, I WANT TO TALK TO YOU ABOUT YOUR UNION . .
. I WANT YOU TO GET ME AN APPLICATION. I WANT TO KNOW WHAT I HAVE TO DO
TO JOIN YOUR UNION . . . " (TR.13)
AT THE HEARING, WHEN ASKED WHY HE SOUGHT A MEMBERSHIP APPLICATION
FROM NORMA MORGAN, MR. ROSS TESTIFIED:
I THINK ONE SIMPLE STATEMENT CAN COVER THAT. I SINCERELY WANTED THE
APPLICATION TO JOIN
THE UNION. I WOULD HAVE GOT IT BACK THAT DAY AND COMPLETED WITH $25
CHECK IF SHE WOULD HAVE
DONE IT. I WAS SINCERELY EARNEST IN THE REQUEST. I SINCERELY REGRET
THAT IT HAS SOMEWHAT
BEEN TWISTED. (TR. 76-77)
BY WAY OF FURTHER EXPLANATION, MR. ROSS TESTIFIED THAT JOINING THE
UNION WOULD HAVE BEEN A GOOD MOVE; THAT IF HIS EMPLOYEES WERE
INTERESTED IN THE UNION, HE DIDN'T WANT TO BE ON THE OUTSIDE; AND THAT
ONE OF THE BEST WAYS, IN HIS OPINION, TO LET THE EMPLOYEES KNOW HE DID
NOT DISAPPROVE OF THEIR JOINING WAS TO ANNOUNCE PUBLICLY THAT HE WAS
INTERESTED IN JOINING.
WHATEVER MAY BE SAID OF THE WISDOM OF MR. ROSS' ATTEMPT TO JOIN THE
UNION, I CREDIT HIS EXPLANATION AND FIND THAT HIS CONDUCT IN THIS
RESPECT DID NOT CONSTITUTE HARRASSMENT AND INTIMIDATION IN VIOLATION OF
THE ORDER. INDEED, IF ANYTHING, IT WOULD MORE NEARLY TEND TO PROVE A
VIOLATION OF SECTION 19, SUBSECTION (A)(3) OF THE ORDER RATHER THAN
SUBSECTIONS (A)(1) AND (A)(2) AS ALLEGED, PARTICULARLY SINCE THE RECORD
IS DEVOID OF ANY EVIDENCE OF ANTI-UNION ANIMUS ON THE PART OF
RESPONDENT.
ALTHOUGH I DOUBT THEY MERIT MUCH, IF ANY, ATTENTION, TWO OTHER
INCIDENTS WILL BE DISCUSSED, SINCE APPARENTLY THE EVIDENCE WAS ADDUCED
AS PROOF OF HARRASSMENT AND INTIMIDATION IN VIOLATION OF THE ORDER. ONE
OF THESE INCIDENTS INVOLVED A STATEMENT TO MORGAN THAT SHE COULD NOT
TAKE PERSONAL MATTER INTO THE PROJECTION ROOM. THIS STATEMENT WAS MADE
BY SUPERVISOR ECKERT, WHO, WHILE STANDING WITH ROSS, OBSERVED MORGAN
ABOUT TO ENTER THE PROJECTION ROOM CARRYING A LARGE SHOPPING BAG. WHEN
ROSS REMINDED ECKERT OF THE RULE AGAINST PERSONAL BELONGINGS IN THE
PROJECTION ROOM, ECKERT TOLD MORGAN SHE COULD NOT TAKE THE SHOPPING BAG
WITH HER. THERE WAS AMPLE CREDIBLE TESTIMONY TO THE EFFECT THAT THE
PROJECTION ROOM, BECAUSE IT CONTAINED EXPENSIVE AND SENSITIVE EQUIPMENT,
WAS KEPT AT CONSTANT TEMPERATURE AND FREE OF DUST. THERE WAS A RULE
AGAINST CARRYING PERSONAL ITEMS INTO THE PROJECTION ROOM AND THIS RULE
APPLIED TO ALL WHO ENTERED. WHILE THERE WAS EVIDENCE THAT ECKERT, WHO
APPEARED AS A FRIENDLY AND SYMPATHETIC INDIVIDUAL, RELAXED THAT RULE ON
MANY OCCASIONS, HIS OWN SUPERVISORS APPARENTLY DID NOT KNOW THAT, AND
THERE IS NOTHING TO INDICATE THAT THE INCIDENT IN QUESTION WAS MOTIVATED
BY ANY DESIRE OR INTENT TO INTIMIDATE OR HARASS.
THE OTHER INCIDENT INVOLVED THE RECORDING OF REMARKS AT A STAFF
MEETING. ROSS HAD PLACED A RECORDER IN OPEN VIEW OF THE EMPLOYEES
PRESENT AND RECORDED HIS OWN REMARKS. THE MEETING WAS NOT RELATED IN
ANY WAY TO THE UNION OR ITS ATTEMPT TO ORGANIZE THE EMPLOYEES, BUT WAS
ONE PERIODICALLY CALLED FOR THE PURPOSES OF EXCHANGING IDEAS. AFTER
SPEAKING, ROSS INVITED QUESTIONS OR REMARKS, BUT SHUT OFF THE RECORDING
DEVICE BEFORE ANYONE SPOKE. IT IS THIS REFUSAL OR DECLINATION TO RECORD
THE EMPLOYEES' REMARKS WHICH THE UNION APPARENTLY CONSIDERS AS
HARRASSMENT OR INTIMIDATION OR CONDUCT WHICH INTERFERED WITH EMPLOYEES'
RIGHTS UNDER THE ORDER. BUT ROSS' TESTIMONY, I THINK, PUTS THE MATTER
TO REST. WHEN ASKED TO EXPLAIN HIS CONDUCT, HE REPLIED, "HOW CAN I HAVE
A FREE MEETING FOR THEM IF I'M GOING TO RECORD WHAT THEY SAY. I WANTED
TO RECORD WHAT I WAS SAYING." I FIND THAT THIS INCIDENT DID NOT
CONSTITUTE HARRASSMENT OR INTIMIDATION, NOR DID IT INTERFERE WITH,
RESTRAIN OR COERCE EMPLOYEES IN THE EXERCISE OF THE RIGHTS ASSURED BY
THE ORDER.
THE INCIDENTS RELATED ABOVE ARE THOSE WHICH I CONSIDER TO BE MAINLY
RELIED UPON BY COMPLAINANT TO PROVE THE ALLEGATIONS SET OUT IN THE
COMPLAINT. HOWEVER, I HAVE CONSIDERED ALL THE EVIDENCE PRESENTED IN
THIS CASE. IF SOME OF IT HAS NOT BEEN SET OUT HERE IN DETAIL, IT IS
BECAUSE I HAVE CONSIDERED IT TOO INSIGNIFICANT TO WARRANT DISCUSSION,
SUCH AS THE INCIDENT WHICH LED NORMA MORGAN TO QUESTION CHARLES ROSS
CONCERNING THE IDENTITY OF HER SUPERVISOR, OR THE INCIDENT RELATING TO
THE RESTRICTION ON USE OF CARBON PAPER IN THE PROJECTION ROOM. MUCH OF
NORMA MORGAN'S TESTIMONY WAS SUBJECTIVE, AND SHE WAS QUICK TO UTTER HER
CONVICTION THAT SHE WAS BEING HARRASSED BECAUSE OF HER UNION ACTIVITY.
BUT A FINDING OF A VIOLATION OF THE ORDER MUST BE BASED ON THE
PREPONDERANCE OF THE EVIDENCE (SEE SEC. 203.14, RULES AND REGULATIONS;
29 CFR SEC. 203.14). SUCH EVIDENCE MUST BE OBJECTIVE, AND IN THAT
CATEGORY I VIEW THE RECORD AS SADLY LACKING.
HERE WE HAVE A CASE WHERE AN EMPLOYEE WAS ASSISTING A UNION AND WHERE
THERE WAS NO QUESTION THAT MANAGEMENT WAS AWARE OF THE ACTIVITY. BUT
MANAGEMENT WAS NOT OPPOSED. INDEED THE TOP TWO MANAGEMENT OFFICIALS
WITH WHOM NORMA MORGAN HAD FREQUENT CONTACT HAD PREVIOUSLY HELD
POSITIONS WHERE THEY REPRESENTED EMPLOYEES IN DEALING WITH MANAGEMENT.
WHILE SUCH A POSITION IN THE PAST DOES NOT INSULATE OR IMMUNIZE A
MANAGEMENT REPRESENTATIVE FROM UNFAIR LABOR PRACTICES, THE EVIDENCE IN
THIS CASE SHOWS COOPERATION RATHER THAN OPPOSITION TO THE ORGANIZATIONAL
DRIVE INVOLVED. AS A MATTER OF FACT, WHILE PERHAPS A BIT NAIVE AND
SELF-SERVING, MANAGEMENT HERE PROPOSED AS A RESOLUTION TO THE COMPLAINT
OF UNFAIR LABOR PRACTICES THAT A NEW ORGANIZATIONAL DRIVE BE INITIATED
BY THE UNION, DURING WHICH MANAGEMENT WOULD SUPPLY A BETTER HEADQUARTERS
LOCATION FOR THE UNION AND OTHERWISE COOPERATE FULLY IN THE DRIVE. WITH
SUCH A BACKGROUND MORE EVIDENCE THAN IS FOUND IN THIS CASE IS REQUIRED
TO SUPPORT A VIOLATION OF THE ORDER. (DF. OFFICE OF ECONOMIC
OPPORTUNITY, REGION V, CHICAGO, ILLINOIS, A/SLMR NO. 334)
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 ENTIRELY.
DATED: MARCH 22, 1974
WASHINGTON, D.C.
/1/ NONE OF THESE MATTERS IS ALLEGED TO CONSTITUTE AN UNFAIR LABOR
PRACTICE UNDER THE ORDER. THEY ARE RELATED HERE ONLY AS BACKGROUND,
SINCE IT IS UNCONTESTED THAT DURING THIS PERIOD MS. MORGAN ASSISTED
UNION REPRESENTATIVES IN AN ORGANIZATIONAL DRIVE AT THE JEFFERSON
NATIONAL EXPANSION MEMORIAL. RESPONDENT ADMITTEDLY HAD KNOWLEDGE OF
THIS UNION ACTIVITY BY MS. MORGAN.
4 A/SLMR 401; P. 406; CASE NO. 72-4338; JUNE 21, 1974.
DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION,
YUMA PROJECTS OFFICE,
YUMA, ARIZONA
A/SLMR NO. 401
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
LOCAL 1487, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, BLYTHE, CALIFORNIA
(COMPLAINANT), ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1),
(3) AND (6) OF THE EXECUTIVE ORDER BY UNILATERALLY CHANGING THE
ESTABLISHED COMPETITIVE AREAS GOVERNING REDUCTION-IN-FORCE AND,
THEREAFTER, REFUSING TO CONFER WITH THE COMPLAINANT FOR PURPOSES OF
DISCUSSING THE LATTER'S PENDING COMPLAINT WITHOUT THE PRESENCE OF RIVAL
UNION REPRESENTATIVES. THE RESPONDENT CONTENDED THAT SINCE THE MERGER
BETWEEN THE LOWER COLORADO RIVER PROJECT OFFICE AND THE YUMA PROJECTS
OFFICE RAISED A QUESTION CONCERNING REPRESENTATION, IT WAS RELIEVED FROM
ITS OBLIGATION TO MEET AT A REASONABLE TIME AND CONFER IN GOOD FAITH
WITH RESPECT TO ANY CHANGE IN THE COMPETITIVE AREAS AND THAT IT REFUSED
TO MEET WITH THE COMPLAINANT WITHOUT REPRESENTATIVES OF ITS RIVAL UNION
BECAUSE IT WISHED TO MAINTAIN A NEUTRAL POSITION.
THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT THE RESPONDENT'S ACTION IS CHANGING THE AREA OF
COMPETITION WAS VIOLATIVE OF THE ORDER. THIS CONCLUSION WAS BASED ON
HIS FINDINGS, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE
RESPONDENT DID NOT ACT IN ACCORDANCE WITH PRIOR DECISIONS OF BOTH THE
ASSISTANT SECRETARY AND THE FEDERAL LABOR RELATIONS COUNCIL WHICH PERMIT
A PETITIONING AGENCY, AFTER THE FILING OF AN RA PETITION IN GOOD FAITH,
TO REMAIN NEUTRAL AND AWAIT THE DECISION OF THE ASSISTANT SECRETARY WITH
RESPECT TO THAT PETITION, AND BE GIVEN A REASONABLE OPPORTUNITY TO
COMPLY WITH THE CONSEQUENCES WHICH FLOW FROM THAT DECISION, BEFORE
RISKING THE COMMISSION OF AN UNFAIR LABOR PRACTICE. THE ASSISTANT
SECRETARY FOUND THAT, RATHER THAN REMAINING NEUTRAL, THE RESPONDENT
CHOSE TO ESTABLISH NEW COMPETITIVE AREAS DURING THE PENDENCY OF ITS RA
PETITION. HE ALSO NOTED THAT THERE WAS NO OVERRIDING EXIGENCY WHICH
WOULD HAVE REQUIRED IMMEDIATE CHANGES IN PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING ITS EMPLOYEES' WORKING CONDITIONS.
ALTHOUGH THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW
JUDGE THAT THE RESPONDENT VIOLATED THE ORDER, THE ASSISTANT SECRETARY
FOUND THAT THE RESPONDENT'S CONDUCT VIOLATED ONLY SECTION 19(A)(1) AND
SPECIFICALLY REJECTED THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE
RESPONDENT'S CONDUCT VIOLATED SECTION 19(A)(6) AS HE FOUND THAT, UNDER
THE CIRCUMSTANCES, THE RESPONDENT WAS UNDER NO OBLIGATION TO MEET AND
CONFER WITH THE COMPLAINANT DURING THE PENDENCY OF ITS RA PETITION,
FILED IN GOOD FAITH AND BASED ON A DOUBT OF THE CONTINUED
APPROPRIATENESS OF THE UNITS INVOLVED.
THE ASSISTANT SECRETARY ALSO FOUND, CONTRARY TO THE ADMINISTRATIVE
LAW JUDGE, THAT THE ALLEGED IMPROPER CONDUCT WHICH OCCURRED IN
CONNECTION WITH THE COMPLAINANT'S PRE-COMPLAINT CHARGE DID NOT VIOLATE
SECTION 19(A)(6) OF THE ORDER AS MATTERS RELATING TO THE PROCESSING OF
CASES UNDER THE ASSISTANT SECRETARY'S REGULATIONS ARE ADMINISTRATIVE
MATTERS TO BE ENFORCED BY THE ASSISTANT SECRETARY AND SUCH MATTERS,
STANDING ALONE, DO NOT CONSTITUTE UNFAIR LABOR PRACTICES.
FINALLY, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDING THAT THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
COMPLAINANT'S ALLEGATION THAT THE RESPONDENT VIOLATED SECTION 19(A)(3)
OF THE ORDER.
TO REMEDY THE IMPROPER CONDUCT HEREIN, THE ASSISTANT SECRETARY
ORDERED, AMONG OTHER THINGS, THAT THE PREVIOUS AREAS OF COMPETITION BE
REESTABLISHED AND THAT ANY EMPLOYEE INCORRECTLY LAID OFF BE REINSTATED
TO HIS POSITION AND REIMBURSED FOR ANY LOSS OF PAY OCCASIONED BY HIS
LAYOFF.
DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION,
YUMA PROJECTS OFFICE,
YUMA, ARIZONA
AND
LOCAL 1487, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, BLYTHE,
CALIFORNIA
ON JANUARY 7, 1974, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
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 ACTION AS
SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS AND THE
COMPLAINANT 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 RESPONDENT AND THE ANSWERING BRIEF FILED BY
THE COMPLAINANT, I HEREBY ADOPT THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT IN THE INSTANT CASE ALLEGED ESSENTIALLY THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1), (3) AND (6) OF THE EXECUTIVE ORDER
BY UNILATERALLY CHANGING THE ESTABLISHED COMPETITIVE AREAS GOVERNING
REDUCTION-IN-FORCE AND, THEREAFTER, REFUSING TO CONFER WITH THE
COMPLAINANT FOR PURPOSES OF DISCUSSING THE LATTER'S PENDING COMPLAINT
WITHOUT THE PRESENCE OF RIVAL UNION REPRESENTATIVES.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE SECTION 19(A)(3)
ALLEGATION BE DISMISSED; HOWEVER, HE CONCLUDED THAT THE RESPONDENT'S
CONDUCT HEREIN VIOLATED SECTION 19(A)(6) OF THE ORDER.
THE ESSENTIAL FACTS IN THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH IN DETAIL IN THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
PRIOR TO AUGUST 20, 1972, THE LOWER COLORADO RIVER PROJECT OFFICE,
BLYTHE, CALIFORNIA, AND THE YUMA PROJECTS OFFICE, YUMA, ARIZONA, WERE
TWO OF SEVERAL SUB-REGIONAL OR FIELD OFFICE COMPONENTS OF REGION 3 OF
THE BUREAU OF RECLAMATION OF THE DEPARTMENT OF THE INTERIOR. THE
COMPLAINANT WAS THE EXCLUSIVE REPRESENTATIVE OF THE NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE LOWER COLORADO RIVER PROJECT OFFICE AND
WAS PARTY TO A NEGOTIATED AGREEMENT COVERING SUCH EMPLOYEES. LOCAL 640,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, HEREIN CALLED IBEW,
WAS, AT ALL TIMES MATERIAL HEREIN, THE EXCLUSIVE REPRESENTATIVE OF THE
NONSUPERVISORY EMPLOYEES, WITH THE EXCEPTION OF THOSE INVOLVED WITH THE
ENGINEERING FUNCTION, AT THE YUMA PROJECTS OFFICE AND ALSO WAS PARTY TO
A NEGOTIATED AGREEMENT COVERING SUCH EMPLOYEES. THE "COMPETITIVE AREAS"
FOR REDUCTION-IN-FORCE PURPOSES FOR THESE TWO OFFICES WERE: (A) LOWER
COLORADO RIVER PROJECT OFFICE, BLYTHE, CALIFORNIA, INCLUDING FIELD
OFFICES INVOLVED IN DREDGING ACTIVITY, AND (B) YUMA PROJECTS OFFICE,
YUMA, ARIZONA. /1/
ON AUGUST 10, 1972, THE LOWER COLORADO RIVER PROJECT OFFICE AND THE
YUMA PROJECTS OFFICE WERE MERGED. THE FUNCTIONS OF THE LOWER COLORADO
RIVER PROJECT OFFICE AND THE EMPLOYEES WORKING THEREIN WERE ASSIGNED
ADMINISTRATIVELY TO THE YUMA PROJECTS OFFICE. AS A RESULT OF THE
RESPONDENT'S CONCERN OVER THE QUESTION OF EMPLOYEE REPRESENTATION
CREATED BY THE MERGER, ON SEPTEMBER 29, 1974, A MEETING WAS HELD WITH
REPRESENTATIVES OF THE COMPLAINANT AND THE IBEW. AT THIS MEETING, THE
RESPONDENT SUGGESTED, AMONG OTHER THINGS: (A) THAT THE COMPLAINANT
SHOULD REPRESENT THE DREDGING EMPLOYEES INASMUCH AS THEY RETAINED THEIR
IDENTITY AS A DISTINCT IDENTIFIABLE UNIT, AND (B) THAT OTHER FORMER
EMPLOYEES OF THE LOWER COLORADO RIVER PROJECT OFFICE, WHICH IT CONTENDED
HAD BEEN ASSIMILATED INTO THE YUMA FIELD OFFICE, AND SHOP CREWS LOCATED
AT YUMA, SHOULD BE CONSIDERED AS AN ACCRETION TO THE EXISTING UNIT
REPRESENTED BY THE IBEW. BOTH THE COMPLAINANT AND THE IBEW INFORMED THE
RESPONDENT THAT THEY WERE NOT AGREEABLE TO THESE SUGGESTIONS.
THEREAFTER, THE RESPONDENT UNILATERALLY DECIDED THAT IT WOULD BE
APPROPRIATE TO MAINTAIN SEPARATE COMPETITIVE AREAS WITH REGARD TO THE
DREDGING OPERATION AND THE REMAINDER OF THE YUMA PROJECT. THUS, IN
EARLY DECEMBER 1972, IT MADE A VERBAL RECOMMENDATION TO THIS EFFECT TO
ITS REGIONAL OFFICE IN BOULDER CITY, NEVADA. THEREAFTER, BY LETTER
DATED DECEMBER 21, 1972, IT MADE A FORMAL REQUEST TO THE COMMISSION,
BUREAU OF RECLAMATION, WASHINGTON, D.C. TO ESTABLISH NEW COMPETITIVE
AREAS. SUBSEQUENTLY, ON JANUARY 4, 1973, THE RESPONDENT FILED AN RA
PETITION. /2/ THE RESPONDENT'S REQUEST TO CHANGE ITS COMPETITIVE AREAS
WAS APPROVED BY THE COMMISSIONER, BUREAU OF RECLAMATION, ON JANUARY 12,
1973. ON JANUARY 23, 1973, A "LOWER COLORADO REGION SUPPLEMENT TO THE
FEDERAL PERSONNEL MANUAL" WAS ISSUED ESTABLISHING THE REQUESTED NEW
COMPETITIVE AREAS WITH RESPECT TO ANY FUTURE REDUCTIONS-IN-FORCE FOR THE
LOWER COLORADO REGION. IN PERTINENT PART, IT SET FORTH THE FOLLOWING
COMPETITIVE AREAS: "(5) YUMA PROJECTS OFFICE, YUMA, ARIZONA, (ALL OF
THE YUMA PROJECTS OFFICE, EXCEPT THE DREDGING FUNCTION)" AND "(6) YUMA
PROJECTS OFFICE, YUMA, ARIZONA (ALL OF THE DREDGING FUNCTIONS ASSIGNED
TO THE YUMA PROJECTS OFFICE)."
THEREAFTER, IN FEBRUARY, 1973, THE RESPONDENT DETERMINED THAT A
REDUCTION-IN-FORCE IN THE DREDGING PROGRAM WAS IMMINENT. IN THIS
CONNECTION, IT HELD SEPARATE MEETINGS WITH THE IBEW AND THE COMPLAINANT
ON MARCH 1, 1973, AND MARCH 2, 1973, RESPECTIVELY, TO DISCUSS THE
IMPENDING REDUCTION-IN-FORCE. AT THESE MEETINGS THE COMPLAINANT AND THE
IBEW OFFICIALLY WERE INFORMED OF THE CHANGES IN THE COMPETITIVE AREAS.
THEREAFTER, ON MARCH 12 AND APRIL 26, 1973, RESPECTIVELY, GENERAL AND
SPECIFIC REDUCTION-IN-FORCE NOTICES WERE ISSUED, SPECIFYING THE
EFFECTIVE DATES THEREOF AS MAY 26 AND JUNE 10, 1973.
ON MAY 12, 1973, THE COMPLAINANT FILED AN UNFAIR LABOR PRACTICE
CHARGE WITH THE RESPONDENT ALLEGING VIOLATION OF SECTION 19(A)(1), (2)
AND (6) OF THE ORDER BASED ON THE RESPONDENT'S UNILATERAL CHANGING OF
THE COMPETITIVE AREAS. AFTER AN EXCHANGE OF LETTERS BETWEEN THE
PARTIES, THE RESPONDENT ON JUNE 1, 1973, DENIED THE COMPLAINANT'S
CHARGES BUT STATED ITS WILLINGNESS TO MEET WITH THE LATTER TO DISCUSS
THE MATTER. THE RESPONDENT INDICATED, HOWEVER, THAT SUCH MEETING WOULD
BE CONTINGENT UPON THE PRESENCE OF A REPRESENTATIVE OF THE IBEW DUE TO
THE EXISTING QUESTION CONCERNING REPRESENTATION RAISED BY ITS RA
PETITION. IN A LETTER DATED JUNE 12, 1973, THE COMPLAINANT REPEATED ITS
CHARGES AND AGREED TO MEET WITH THE RESPONDENT WITHOUT THE IBEW,
CONTENDING THAT THE MATTER TO BE DISCUSSED IN NO WAY INVOLVED THE IBEW.
THEREAFTER, THE RESPONDENT, IN A LETTER DATED JUNE 14, 1973, REITERATED
ITS DENIAL OF THE COMPLAINT'S CHARGES AND AGAIN STATED ITS OBJECTION TO
A MEETING WITH THE COMPLAINANT WITHOUT A REPRESENTATIVE OF THE IBEW
BEING PRESENT. ON JULY 12, 1973, THE COMPLAINANT FILED THE INSTANT
COMPLAINT, WHICH WAS SUBSEQUENTLY AMENDED TO ALLEGE SECTION 19(A)(1),
(3) AND (6) VIOLATIONS OF THE ORDER.
THE RESPONDENT CONTENDS THAT WHEN IT BECAME APPARENT, IN THE LATTER
PART OF 1972, THAT A REDUCTION IN THE DREDGING PROGRAM WAS A POSSIBILITY
DURING THE FIRST HALF OF 1973, IT RECOGNIZED THAT A DECISION HAD TO BE
MADE AS TO THE DEFINED COMPETITIVE AREAS TO BE INVOLVED SHOULD A
REDUCTION-IN-FORCE BE REQUIRED. IN THIS REGARD, AS NOTED ABOVE, THE
RESPONDENT, IN DECEMBER 1972, SET IN MOTION THE ADMINISTRATIVE
PROCEDURES TO BRING ABOUT A CHANGE IN THE COMPETITIVE AREAS.
AFTER THE CLOSE OF THE HEARING IN THIS MATTER, THE RESPONDENT ADVISED
THAT THE CIVIL SERVICE COMMISSION'S BOARD OF APPEALS AND REVIEW (BAR)
HAD RULED, UPON APPEAL, THAT THE RESPONDENT HAD ESTABLISHED A
COMPETITIVE AREA IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS. IN ITS
DECISION, THE BAR ACCEDED TO THE RESPONDENT'S EXCEPTION TO REVIEW BY THE
BAR OF AN APPEAL OF THE "LABOR-MANAGEMENT ISSUE" RAISED IN THE SUBJECT
CASE. THE BAR NOTED, IN THIS REGARD, THAT "THE TESTIMONY DEVELOPED IN
CONNECTION WITH THE UNFAIR LABOR PRACTICE COMPLAINT PERTAINING TO THE
REASONS FOR SEPARATE COMPETITIVE AREAS IS NOT RELEVANT IN THE
ADJUDICATION OF THE PROPRIETY OF THE COMPETITIVE AREAS AS ESTABLISHED."
IN VIEW OF THE FOREGOING, I FIND THAT SECTION 19(D) OF THE ORDER WOULD
NOT BE DISPOSITIVE OF THIS MATTER. CF. VETERANS ADMINISTRATION,
VETERANS BENEFITS OFFICE, A/SLMR NO. 296.
UNDER THE CIRCUMSTANCES OF THIS CASE, I AGREE WITH THE ADMINISTRATIVE
LAW JUDGE'S FINDING THAT THE RESPONDENT'S ACTION IN CHANGING THE AREAS
OF COMPETITION WAS VIOLATIVE OF THE ORDER. THUS, IN PRIOR DECISIONS,
BOTH THE ASSISTANT SECRETARY AND THE FEDERAL LABOR RELATIONS COUNCIL
HAVE INDICATED THAT WHEN AN RA PETITION IS FILED IN GOOD FAITH, THE
PETITIONING AGENCY SHOULD BE PERMITTED TO REMAIN NEUTRAL AND AWAIT THE
DECISION OF THE ASSISTANT SECRETARY WITH RESPECT TO THAT PETITION AND BE
GIVEN A REASONABLE OPPORTUNITY TO COMPLY WITH THE CONSEQUENCES WHICH
FLOW FROM THE REPRESENTATION DECISION BEFORE INCURRING THE RISK OF AN
UNFAIR LABOR PRACTICE FINDING. /3/ IN THIS REGARD, I AGREE WITH THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE RESPONDENT DID NOT ACT IN
ACCORDANCE WITH THE FOREGOING RATIONALE. THUS, THE EVIDENCE ESTABLISHES
THAT IT DID NOT REMAIN NEUTRAL AND AWAIT THE DECISION OF THE ASSISTANT
SECRETARY AFTER THE FILING OF ITS RA PETITION BUT, RATHER, DURING THIS
PERIOD IT CHOSE TO ESTABLISH NEW COMPETITIVE AREAS. IN MY VIEW, ABSENT
EVIDENCE (NOT PRESENT IN THE INSTANT CASE) OF AN OVERRIDING EXIGENCY,
WHICH WOULD REQUIRE IMMEDIATE CHANGES IN PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING ITS EMPLOYEES' WORKING CONDITIONS,
DURING THE PENDENCY OF AN RA PETITION, THE PETITIONING AGENCY HAS AN
OBLIGATION TO REMAIN NEUTRAL AND MAINTAIN THE STATUS QUO WITH RESPECT TO
THE PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING THE WORKING
CONDITION OF EMPLOYEES WHO ARE COVERED BY ITS RA PETITION. TO ALLOW
OTHERWISE WOULD PERMIT A PETITIONING AGENCY TO INTERFERE WITH ITS
EMPLOYEES' RIGHT TO A FREE AND UNTRAMMELED ELECTION WHICH IS BEING
SOUGHT BY THE RA PETITION. MOREOVER, I CONCUR WITH THE VIEW OF THE
ADMINISTRATIVE LAW JUDGE THAT AN AGENCY SHOULD NOT BE PERMITTED TO
ENGAGE IN CONDUCT DURING THE PENDENCY OF ITS RA PETITION WHICH COULD
CAST SUSPICION ON THE APPROPRIATENESS OF THE EXISTING BARGAINING UNIT OR
UNITS INVOLVED OR A UNION'S REPRESENTATIVE STATUS, AND WHICH, IN AND OF
ITSELF, POSSIBLY COULD ESTABLISH A BASIS FOR THE RA PETITION. BASED ON
THESE CONSIDERATIONS AND AS THE EVIDENCE DOES NOT ESTABLISH THAT THE
RESPONDENT'S CONDUCT HEREIN WAS BASED ON AN OVERRIDING EXIGENCY WHICH
REQUIRED IMMEDIATE ACTION, I FIND THAT THE RESPONDENT'S ESTABLISHING OF
NEW COMPETITIVE AREAS DURING THE PENDENCY OF ITS RA PETITION IMPROPERLY
INTERFERED WITH ITS EMPLOYEES' RIGHTS ASSURED BY THE ORDER IN VIOLATION
OF SECTION 19(A)(1).
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I REJECT THE FINDING
OF THE ADMINISTRATIVE LAW JUDGE THAT THE RESPONDENT'S CONDUCT VIOLATED
SECTION 19(A)(6) OF THE ORDER. THUS, AS NOTED ABOVE, THE RESPONDENT HAD
AN OBLIGATION DURING THE PENDENCY OF ITS RA PETITION TO REMAIN NEUTRAL
AND TO MAINTAIN THE STATUS QUO WITH RESPECT TO PERSONNEL POLICIES AND
PRACTICES AND MATTERS AFFECTING THE CONDITIONS OF EMPLOYMENT OF
EMPLOYEES COVERED BY THE RA PETITION. HOWEVER, IN VIEW OF THE BASIS FOR
THE RA PETITION -- I.E., THAT THE EXISTING UNITS WERE INAPPROPRIATE AS A
RESULT OF A REORGANIZATION /4/ -- AND THE FACT THAT THE EVIDENCE
ESTABLISHES THAT SUCH PETITION WAS FILED IN GOOD FAITH, I FIND THAT
DURING ITS PENDENCY THE RESPONDENT WAS UNDER NO OBLIGATION TO MEET AND
CONFER WITH THE COMPLAINANT WHICH MAY OR MAY NOT HAVE CONTINUED TO
REPRESENT AN APPROPRIATE UNIT BASED ON THE OUTCOME OF THE RA PETITION.
/5/
WITH RESPECT TO THE ALLEGED IMPROPER CONDUCT WHICH OCCURRED IN
CONNECTION WITH THE PROCESSING OF THE COMPLAINANT'S PRE-COMPLAINT CHARGE
AND WHICH WAS FOUND BE THE ADMINISTRATIVE LAW JUDGE TO HAVE VIOLATED
SECTION 19(A)(6) OF THE ORDER, IT HAS BEEN INDICATED IN PREVIOUS
DECISIONS THAT MATTERS RELATING TO THE PROCESSING OF CASES UNDER THE
ASSISTANT SECRETARY'S REGULATIONS ARE ADMINISTRATIVE MATTERS TO BE
ENFORCED BY THE ASSISTANT SECRETARY AND THAT SUCH MATTERS, STANDING
ALONE, DO NOT CONSTITUTE UNFAIR LABOR PRACTICES. /6/ ACCORDINGLY,
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT FURTHER PROCEEDING
ON THE COMPLAINANT'S ALLEGATIONS IN THIS REGARD ARE UNWARRANTED.
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
INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS OFFICE, YUMA, ARIZONA,
SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING THE AREAS OF COMPETITION FOR PURPOSES OF A
REDUCTION-IN-FORCE WITHIN THE YUMA PROJECTS OFFICE DURING THE PENDENCY
OF ITS RA PETITION.
(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 ORDER:
(A) REESTABLISH THE AREAS OF COMPETITION OF THE YUMA PROJECTS OFFICE
TO THAT WHICH EXISTED PRIOR TO JANUARY 23, 1973, AND REEVALUATE ALL
LAYOFFS MADE SUBSEQUENT TO SUCH DATE IN ACCORDANCE THEREWITH.
(B) IF, FOLLOWING THE ACTION TAKEN IN ACCORDANCE WITH PARAGRAPH 2(A)
ABOVE, IT SHOULD DEVELOP THAT ANY EMPLOYEE WAS INCORRECTLY LAID OFF,
SUCH EMPLOYEE SHALL BE REINSTATED TO HIS APPROPRIATE POSITION AND DULY
REIMBURSED FOR ANY LOSS OF PAY OCCASIONED BY HIS LAYOFF. /7/
(C) POST AT ITS YUMA PROJECTS OFFICE, YUMA, ARIZONA, 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 PROJECT MANAGER OR
OTHER APPROPRIATE OFFICIAL IN CHARGE OF THE YUMA PROJECTS OFFICE, YUMA,
ARIZONA, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE PROJECT MANAGER OF OTHER
APPROPRIATE OFFICIAL SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED OR 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
VIOLATIONS OF SECTION 19(A)(3) AND (6) OF THE ORDER BE, AND IT HEREBY
IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 21, 1974
/1/ UNDER THE REDUCTION-IN-FORCE PROCEDURE IN EFFECT AT THE LOWER
COLORADO RIVER PROJECT OFFICE, ANY EMPLOYEE, INCLUDING THOSE IN THE
FIELD OFFICES, POSSESSING THE REQUISITE SENIORITY AND SKILLS, COULD BUMP
ANY EMPLOYEE WORKING WITHIN THE LOWER COLORADO RIVER PROJECT OFFICE.
SIMILARLY, A PROJECT-WIDE REDUCTION-IN-FORCE PROCEDURE EXISTED WITH
RESPECT TO THE YUMA PROJECTS OFFICE.
/2/ THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY NOTED THAT THIS
PETITION WAS FILED IN NOVEMBER 1972. I HEREBY TAKE OFFICIAL NOTICE OF
THE FACT THAT THE RA PETITION WAS FILED ON JANUARY 4, 1973. IN ITS RA
PETITION, THE ACTIVITY SOUGHT AN ELECTION IN AN OVERALL UNIT CONSISTING
OF ALL GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES AT THE YUMA PROJECTS
OFFICE, LOWER COLORADO REGION, REGION OF RECLAMATION. IN SUPPORT OF ITS
PETITION, THE RESPONDENT CONTENDED THAT, AS A RESULT OF THE AUGUST 20,
1972, REORGANIZATION, EMPLOYEES OF ITS LOWER COLORADO RIVER PROJECT
OFFICE, BLYTHE, CALIFORNIA, WERE MERGED INTO THE YUMA PROJECT, RENDERING
INAPPROPRIATE CERTAIN PREVIOUSLY EXISTING EXCLUSIVELY RECOGNIZED UNITS.
THE RA PETITION WAS ORDERED DISMISSED BY THE ASSISTANT SECRETARY ON
OCTOBER 24, 1973, ON THE GROUNDS THAT IT DID NOT RAISE A QUESTION
CONCERNING REPRESENTATION BECAUSE "THE REORGANIZATION OF AUGUST 20, 1972
DID NOT SUBSTANTIALLY OR MATERIALLY CHANGE THE SCOPE OF CHARACTER OF THE
UNITS INVOLVED, AND THAT, THEREFORE, SUCH UNITS REMAIN VIABLE AND
IDENTIFIABLE . . . " SEE UNITED STATES DEPARTMENT OF INTERIOR, BUREAU OF
RECLAMATION, LOWER COLORADO REGION, A/SLMR NO. 318.
/3/ SEE HEADQUARTERS, UNITED STATES ARMY AVIATION SYSTEMS COMMAND,
ST. LOUIS, MISSOURI, A/SLMR NO. 168, FLRC NO. 72A-30. SEE ALSO DEFENSE
SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN PROVING
GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 360.
/4/ SEE HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS,
MISSOURI, A/SLMR NO. 160.
/5/ COMPARE DEPARTMENT OF THE NAVY, NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA, A/SLMR NO. 155, WHICH DID NOT INVOLVE A QUESTION
REGARDING THE CONTINUED APPROPRIATENESS OF AN EXISTING UNIT.
/6/ SEE LONG BEACH NAVAL SHIPYARD, A/SLMR NO. 352 AND U.S.
DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, ARMY MATERIAL COMMAND,
AUTOMATED LOGISTICS MANAGEMENT SYSTEMS AGENCY, A/SLMR NO. 211.
/7/ AN AWARD OF BACK PAY PURSUANT TO THIS REMEDIAL ORDER IS CLEARLY
APPROPRIATE UNDER THE AUTHORITY OF SECTION 6(B) OF THE EXECUTIVE ORDER,
THE BACK PAY ACT OF 1966 (5 U.S.C. 5596), AND THE CIVIL SERVICE
COMMISSION'S IMPLEMENTING REGULATIONS AT 5 CFR 550.801, ET. SEQ.
(SUBPART H). SEE ALSO, IN THIS CONNECTION, FEDERAL PERSONNEL MANUAL
CHAPTER 351, SUBCHAPTER 9-4, WHICH STATES, "REIMBURSEMENT OF PAY
ALLOWANCES, OR DIFFERENTIALS LOST AS A RESULT OF IMPROPER
REDUCTION-IN-FORCE ACTION IS REQUIRED BY LAW (5 U.S.C. 5596) AND
REGULATIONS OF THE COMMISSION (PART 550, SUBPART H) UPON CORRECTION OF
THE ACTION. THE CORRECTION MAY BE ORDERED BY THE AGENCY ON ITS OWN
INITIATIVE OR BY THE COMMISSION UPON APPEAL."
WE WILL NOT CHANGE THE AREAS OF COMPETITION FOR PURPOSES OF
REDUCTION-IN-FORCE WITHIN THE YUMA PROJECTS OFFICE DURING THE PENDENCY
OF AN RA PETITION.
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 REESTABLISH THE AREAS OF COMPETITION FOR PURPOSES OF
REDUCTION-IN-FORCE AT THE YUMA PROJECTS OFFICE TO THAT WHICH EXISTED
PRIOR TO JANUARY 23, 1973, AND REEVALUATE ALL LAYOFFS MADE SUBSEQUENT TO
SUCH DATE IN ACCORDANCE THEREWITH.
WE WILL, SHOULD IT DEVELOP THAT ANY EMPLOYEE WAS INCORRECTLY LAID
OFF, REINSTATE SUCH EMPLOYEE AND MAKE HIM WHOLE FOR ANY LOSS OF PAY
OCCASIONED BY HIS LAYOFF.
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 OF 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
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
YUMA PROJECTS OFFICE
YUMA, ARIZONA
AND
LOCAL 1487, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, BLYTHE,
CALIFORNIA
ROBERT D. CONOVER, ESQUIRE
OFFICE OF THE FIELD SOLICITOR
U.S. DEPARTMENT OF INTERIOR
RIVERSIDE, CALIFORNIA
HOMER R. HOISINGTON
REGIONAL BUSINESS AGENT
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
POST OFFICE BOS 870
RIALTO, CALIFORNIA
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON JULY 12, 1973, UNDER
EXECUTIVE ORDER 11491, AS AMENDED, BY LOCAL 1487, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, (HEREINAFTER CALLED THE UNION OR NFFE), AGAINST THE
DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS OFFICE,
A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT REGIONAL
DIRECTOR FOR THE SAN FRANCISCO, CALIFORNIA, REGION ON OCTOBER 12, 1973.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT WITHOUT
CONSULTING OR CONFERRING, UNILATERALLY CHANGED THE ESTABLISHED
COMPETITIVE AREA GOVERNING REDUCTION IN FORCE AND THEREAFTER REFUSED TO
CONVER WITH THE UNION FOR PURPOSES OF DISCUSSING THE UNION'S PENDING
COMPLAINT THEREON WITHOUT THE PRESENCE OF RIVAL UNION REPRESENTATIVES,
ALL, IN VIOLATION OF SECTIONS 19(A)(1), (3) AND (6) OF THE EXECUTIVE
ORDER.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON NOVEMBER 13, 1973, IN
YUMA ARIZONA. 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. /1/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE AGREED-UPON FACTS CONTAINED IN THE
JOINT EXHIBITS 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.
PRIOR TO AUGUST 20, 1972, REGION 3 OF THE DEPARTMENT OF INTERIOR WAS
COMPOSED OF A NUMBER OF SUB-REGIONAL OR FIELD OFFICES, AMONG WHICH WERE
THE LOWER COLORADO RIVER PROJECT OFFICE, BLYTHE, CALIFORNIA, AND THE
YUMA PROJECTS OFFICE, YUMA, ARIZONA. /2/ NFFE, THE COMPLAINANT HEREIN,
WAS THE EXCLUSIVE REPRESENTATIVE OF THE NON-SUPERVISORY AND
NON-PROFESSIONAL EMPLOYEES AT THE COLORADO PROJECT AND A PARTY TO A
COLLECTIVE BARGAINING AGREEMENT COVERING SUCH EMPLOYEES WITH BUREAU OF
RECLAMATION, REGION 3, LOWER COLORADO RIVER PROJECT OFFICE. THE
NON-SUPERVISORY EMPLOYEES AT THE YUMA PROJECTS OFFICE WITH THE EXCEPTION
OF THOSE INVOLVED IN THE ENGINEERING FUNCTION, WERE REPRESENTED BY
ANOTHER UNION, THE IBEW, WHICH WAS A PARTY TO A COLLECTIVE BARGAINING
AGREEMENT WITH THE YUMA PROJECTS OFFICE. THE EMPLOYEES IN THE
ENGINEERING DEPARTMENT WERE UNREPRESENTED.
THE "COMPETITIVE AREAS" FOR REDUCTION-IN-FORCE PURPOSES, PRIOR TO
AUGUST 20, 1972, WERE (1) LOWER COLORADO RIVER PROJECT OFFICE, BLYTHE,
CALIFORNIA, INCLUDING FIELD OFFICES INVOLVED IN DREDGING ACTIVITY AND,
(2) YUMA PROJECTS OFFICE YUMA, ARIZONA. THUS, IN ACCORDANCE WITH THE
FOREGOING, IN THE EVENT OF A REDUCTION-IN-FORCE AT THE COLORADO PROJECT
ANY EMPLOYEE, INCLUDING THOSE IN THE FIELD OFFICE, POSSESSING THE
REQUISITE SENIORITY AND SKILLS, COULD BUMP ANY EMPLOYEE WORKING WITHIN
THE COLORADO RIVER PROJECT OFFICE. A SIMILAR PROJECT-WIDE SITUATION
EXISTED WITH RESPECT TO THE YUMA PROJECTS OFFICE.
ON AUGUST 20, 1972, PURSUANT TO A REORGANIZATION INVOLVING THE MERGER
OF THE COLORADO PROJECT OFFICE AND THE YUMA PROJECTS OFFICE, THE
FUNCTIONS OF THE COLORADO PROJECT OFFICE AND THE EMPLOYEES WORKING
THEREIN WERE OFFICIALLY TRANSFERRED TO THE YUMA PROJECTS OFFICE. /3/
THE EMPLOYEES PERFORMING LAND-BASED EQUIPMENT OPERATIONS AND SHOP
FUNCTIONS AT THE COLORADO PROJECT WERE ASSIMILATED INTO THE YUMA
PROJECTS OFFICE FIELD AND SHOP CREWS AT YUMA, ARIZONA; AND THE
EMPLOYEES IN THE ENGINEERING FUNCTION OF THE COLORADO PROJECT WERE
ASSIMILATED INTO THE ENGINEERING ORGANIZATION AT YUMA. ADMINISTRATIVE
PERSONNEL WERE OFFERED POSITIONS IN THE YUMA PROJECTS ADMINISTRATIVE
ORGANIZATION, BUT THEY DECLINED TO MOVE TO THE NEW LOCATION. CONTRARY
TO THE REST OF THE EMPLOYEES INVOLVED, THE EMPLOYEES ENGAGED IN
OPERATION OF THE DREDGES FOR THE COLORADO PROJECT (COMPRISING "FIELD
OFFICES") WERE TRANSFERRED AS AN ORGANIZATIONAL ENTITY TO THE YUMA
PROJECTS OFFICE, BUT THEIR WORK FUNCTIONS AND WORK LOCATIONS REMAINED
UNCHANGED. THUS, THIS LATTER GROUP OF EMPLOYEES WHO HAD BEEN ASSOCIATED
WITH THE DREDGING OPERATIONS, WERE NOT INTERMINGLED WITH ANY EXISTING
YUMA PROJECTS OFFICE PERSONNEL AND THEIR SUPERVISOR-EMPLOYEE
RELATIONSHIPS REMAINED UNCHANGED WITH THE EXCEPTION THAT TOP MANAGEMENT
DIRECTION CAME FROM A DIFFERENT PROJECT HEAD.
SUBSEQUENTLY, ON SEPTEMBER 29, 1972, THE YUMA PROJECTS OFFICE, BEING
CONCERNED WITH THE QUESTION OF EMPLOYEE REPRESENTATION CREATED BY THE
MERGER, HELD A MEETING WHICH WAS ATTENDED BY REPRESENTATIVES OF BOTH THE
IBEW AND THE NFFE. DURING THE MEETING THE RESPONDENT, AFTER POINTING
OUT THE EXISTING REPRESENTATION PROBLEMS CREATED BY THE MERGER, PROPOSED
(1) THAT INASMUCH AS THE DREDGING OPERATION OF THE FORMER COLORADO UNIT
RETAINED ITS IDENTITY AS A DISTINCT IDENTIFIABLE UNIT, SUCH UNIT SHOULD
BE ALLOWED TO BE REPRESENTED BY NFFE; (2) THAT THE EMPLOYEES FROM THE
COLORADO PROJECT OFFICE THAT HAD BEEN ASSIMILATED INTO THE YUMA FIELD
OFFICE AND SHOP CREWS LOCATED AT YUMA SHOULD BE CONSIDERED AN ACCRETION
TO THE EXISTING UNIT REPRESENTED AT YUMA BY THE IBEW; AND (3) THAT ALL
ENGINEERING PERSONNEL, INCLUDING THOSE RECENTLY TRANSFERRED FROM
COLORADO TO YUMA, SHOULD BE AFFORDED THE OPPORTUNITY TO SELECT OR REJECT
A BARGAINING REPRESENTATIVE. THE MEETING ENDED WITH THE UNIONS AGREEING
TO GIVE THEIR RESPECTIVE POSITIONS ON THE RESPONDENT'S PROPOSAL IN THE
NEAR FUTURE.
BY LETTERS DATED OCTOBER 9, AND NOVEMBER 22, 1972, THE IBEW AND NFFE,
RESPECTIVELY, INFORMED THE RESPONDENT THAT THEY WERE NOT AGREEABLE TO
ITS SEPTEMBER 29TH PROPOSAL, EACH TAKING THE POSITION THAT FOR VARIOUS
SPECIFIED REASONS ITS RESPECTIVE UNION SHOULD BE RECOGNIZED AS THE SOLE
BARGAINING REPRESENTATIVE FOR THE ENTIRE NEWLY CONSOLIDATED YUMA PROJECT
OPERATION.
THEREAFTER, THE RESPONDENT, WITHOUT ANY FURTHER COMMUNICATION OR
CONTACT WITH EITHER NFFE OR IBEW, DETERMINED THAT THERE COULD BE NO
INFORMAL RESOLUTION OF THE REPRESENTATION QUESTION. IN LINE WITH THIS
CONCLUSION, AND AFTER UNILATERALLY DETERMINING THAT IT WAS APPROPRIATE
TO MAINTAIN SEPARATE COMPETITIVE AREAS WITH REGARD TO THE DREDGING
OPERATION AND THE REMAINDER OF THE YUMA PROJECT, THE RESPONDENT IN EARLY
DECEMBER 1972, MADE A VERBAL RECOMMENDATION TO THE REGIONAL OFFICE,
BOULDER CITY NEVADA, THAT NEW COMPETITIVE AREAS SIMILAR TO THOSE
EXISTING PRIOR TO THE MERGER, I.E. COLORADO DREDGING AND YUMA PROJECT,
BE ESTABLISHED. RESPONDENT MADE A FORMAL REQUEST TO THIS EFFECT TO THE
COMMISSIONER, BUREAU OF RECLAMATION, WASHINGTON, D.C., BY LETTER DATED
DECEMBER 21, 1972. FOLLOWING APPROVAL OF THE AFOREMENTIONED REQUEST ON
JANUARY 12, 1973, A "LOWER COLORADO REGION SUPPLEMENT TO THE FEDERAL
PERSONNEL MANUAL" WAS ISSUED ON JANUARY 23, 1973, ESTABLISHING THE
REQUESTED NEW COMPETITIVE AREAS WITH RESPECT TO ANY FUTURE
REDUCTION-IN-FORCE FOR THE LOWER COLORADO REGION WHICH READS IN
PERTINENT PART AS FOLLOWS:
(5) YUMA PROJECTS OFFICE, YUMA, ARIZONA (ALL OF THE YUMA PROJECTS
OFFICE EXCEPT THE
DREDGING FUNCTIONS)
(6) YUMA PROJECTS OFFICE, YUMA, ARIZONA (ALL OF THE DREDGING FUNCTION
ASSIGNED TO THE YUMA
PROJECTS OFFICE)
IN THE INTERIM, IN NOVEMBER 1972, THE RESPONDENT FILED AN RA
(REPRESENTATIVE STATUS) PETITION (CASE NO. 72-3964) WITH THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION OF THE DEPARTMENT OF LABOR.
ALSO, JAMES SCHUSTER, A FORMER EMPLOYEE, FILED A DECERTIFICATION
PETITION (CASE NO. 72-4067) SEEKING DECERTIFICATION OF THE IBEW. BOTH
PETITIONS RELIED ON THE MERGER IN SUPPORT OF THE ACTIONS URGED THEREIN.
ON OCTOBER 24, 1973, THE ASSISTANT SECRETARY OF LABOR FOR MANAGEMENT
AFFAIRS DISMISSED THE PETITIONS FINDING THAT THE PETITION IN CASE NO.
72-4067 WAS UNTIMELY FILED AND THAT THE PETITION IN CASE 72-3964 DID NOT
RAISE A QUESTION CONCERNING REPRESENTATION SINCE "THE REORGANIZATION OF
AUGUST 20, 1972, DID NOT SUBSTANTIALLY OR MATERIALLY CHANGE THE SCOPE OR
CHARACTER OF THE UNITS INVOLVED . . . , AND THAT THEREFORE, SUCH UNITS
REMAIN VIABLE AND IDENTIFIABLE." A/SLMR NO. 318.
IN FEBRUARY 1973, RESPONDENT DETERMINED THAT A REDUCTION-IN-FORCE IN
THE DREDGING PROGRAM WAS IMMINENT. TO THIS END, AND SINCE THE
REPRESENTATION QUESTION HAD YET TO BE RESOLVED, IT HELD SEPARATE
MEETINGS ON MARCH 1 AND 2, 1973, WITH THE IBEW AND NFFE, RESPECTIVELY,
DURING WHICH THE IMPENDING REDUCTION-IN-FORCE WAS DISCUSSED.
THEREAFTER, ON MARCH 12 AND APRIL 26, 1973, GENERAL AND SPECIFIC
REDUCTION-IN-FORCE NOTICES, RESPECTIVELY WERE ISSUED, SPECIFYING THE
EFFECTIVE DATES THEREOF AS MAY 26 AND JUNE 10, 1973.
IN THE INTERIM, NFFE FILED ITS COMPLAINT UNDERLYING THE INSTANT
PROCEEDINGS. SUBSEQUENTLY, NFFE AND THE RESPONDENT EXCHANGED A NUMBER
OF LETTERS CONCERNING THE PENDING COMPLAINT, AMONG WHICH WERE LETTERS
DATED JUNE 1 AND 14, 1973, WHEREIN THE RESPONDENT MADE IT CLEAR THAT IN
VIEW OF "THE EXISTING QUESTION OF UNIT DETERMINATION" NO MEETING WOULD
BE HELD WITH NFFE UNLESS REPRESENTATIVES OF THE IBEW WERE ALLOWED TO BE
PRESENT.
SUBSEQUENTLY, SOME 20-25 DREDGING EMPLOYEES WERE LAID OFF WITHOUT
BEING ALLOWED THE OPPORTUNITY TO EXERCISE SENIORITY, ETC. AND BUMP OTHER
EMPLOYEES EMPLOYED IN THE YUMA PROJECTS OFFICE, DESIGNATED, AS NOTED
ABOVE, A SEPARATE "COMPETITIVE AREA" FROM THAT OF THE DREDGING
OPERATION. WHILE THE RECORD IS SILENT AS TO HOW MANY OF THE LAID-OFF
DREDGING EMPLOYEES MIGHT HAVE RETAINED JOBS WITHIN THE YUMA PROJECTS
OFFICE HAD THEY BEEN INCLUDED IN SUCH "COMPETITIVE AREAS," RESPONDENTS
REPRESENTATIVES CONCEDED AT THE HEARING THAT HAD THE DREDGING EMPLOYEES
BEEN ACCORDED BUMPING RIGHTS IN THE YUMA PROJECTS OFFICE, SOME MAY HAVE
BEEN ABLE TO RETAIN EMPLOYMENT.
SECTION 11(A) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART,
THAT AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE SHALL MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH ON MATTERS AFFECTING WORKING CONDITIONS.
A REDUCTION IN FORCE "IS A MATTER AFFECTING WORKING CONDITIONS". /4/
ACCORDINGLY, AN AGENCY IS OBLIGATED TO BARGAIN WITH THE EXCLUSIVE
REPRESENTATIVE WITH RESPECT TO THE PROCEDURES WHICH MANAGEMENT WILL
UTILIZE OR OBSERVE IN AFFECTING ITS DECISION TO REDUCE ITS FORCE. /5/
THE AGENCY'S INITIAL DECISION TO EFFECTUATE A REDUCTION-IN-FORCE,
HOWEVER, BY VIRTUE OF SECTIONS 11(B) AND 12(B) OF THE EXECUTIVE ORDER
FALLS OUTSIDE THE PURVIEW OF SECTION 11(A). THUS, SECTION 11(B)
PROVIDES THAT "THE OBLIGATION TO MEET AND CONFER DOES NOT INCLUDE
MATTERS WITH RESPECT TO THE MISSION OF THE AGENCY; . . . 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 . . .
;" AND SECTION 12(B) PROVIDES THAT AN AGENCY RETAINS THE RIGHT "TO
RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR OTHER
LEGITIMATE REASONS."
IN THE INSTANT CASE, THE RESPONDENT, FOLLOWING THE MERGER OF THE
COLORADO AND YUMA, ARIZONA, PROJECTS, DETERMINED THAT THE DREDGING
OPERATION SHOULD CONSTITUTE A SEPARATE COMPETITIVE AREA FOR PURPOSES OF
ANY FUTURE REDUCTION-IN-FORCE. TO THIS END, IT UNILATERALLY AND WITHOUT
NOTICE TO NFFE, CHANGED THE THEN EXISTING SINGLE COMPETITIVE AREA FOR
REDUCTION-IN-FORCE BY DIVIDING SAME INTO TWO SEPARATE AREAS, I.E.,
DREDGING AND YUMA PROJECTS OFFICE. THEREAFTER, IT APPEARS THAT NO
COMMUNICATIONS WHATSOEVER WITH REGARD TO THE UNILATERAL CHANGE IN THE
PROCEDURES TO BE FOLLOWED WITH RESPECT TO REDUCTION-IN-FORCES WAS HAD
WITH NFFE UNTIL SUCH TIME AS A REDUCTION-IN-FORCE BECAME INEVITABLE.
SUBSEQUENTLY, FOLLOWING THE FILING OF THE COMPLAINT BY NFFE ATTACKING
THE AFOREDESCRIBED UNILATERAL ACTION WITH RESPECT TO THE COMPETITIVE
AREAS, THE RESPONDENT REFUSED TO MEET WITH NFFE UNLESS REPRESENTATIVES
OF THE IBEW WERE ALLOWED TO ATTEND ANY SCHEDULED MEETING.
RESPONDENT DOES NOT CONTEND THAT THE UNILATERAL CHANGE IN COMPETITIVE
AREAS FALLS WITHIN THE PROTECTION OF SECTIONS 11(B) AND 12(B) OF THE
EXECUTIVE ORDER. NOR DOES IT CONTEND THAT THE PROCEDURES, I.E.,
COMPETITIVE AREA, TO BE UTILIZED IN ORDER TO EFFECTUATE DECISIONS TO
REDUCE FORCES ARE NOT MATTERS AFFECTING WORKING CONDITIONS WITHIN THE
MEANING OF SECTION 11(A) WHICH IT IS OBLIGATED TO MEET AND CONFER IN
GOOD FAITH THEREON WITH NFFE, THE EXCLUSIVE REPRESENTATIVE. /6/ RATHER,
RESPONDENT APPEARS TO JUSTIFY ITS ACTION SOLELY ON THE GROUND THAT THE
MERGER RAISED A QUESTION CONCERNING REPRESENTATION AND THAT IN SUCH
CIRCUMSTANCES IT WAS RELIEVED FROM ITS OBLIGATION TO "MEET AT REASONABLE
TIMES AND CONFER IN GOOD FAITH" WITH RESPECT TO ANY CHANGE IN THE
COMPETITIVE AREAS, A MATTER FOUND HEREIN TO AFFECT WORKING CONDITIONS.
IN SUPPORT OF ITS POSITION IN THIS LATTER REGARD RESPONDENT CITES THE
DECISION OF THE FEDERAL LABOR RELATIONS COUNCIL IN HEADQUARTERS, UNITED
STATES ARMY AVIATION SYSTEMS COMMAND, FLRC NO. 72A-30.
HEADQUARTERS, UNITED STATES ARMY AVIATION SYSTEMS COMMAND, WAS AN
APPEAL FROM A DECISION OF THE ASSISTANT SECRETARY (A/SLMR NO. 168)
WHEREIN THE ASSISTANT SECRETARY FOUND THE ACTIVITY TO BE IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER BY VIRTUE OF ITS ACTION IN REFUSING TO
SIGN A PREVIOUSLY NEGOTIATED AGREEMENT AND ORDERED, AS PART OF THE
REMEDY, THAT THE ACTIVITY POST A NOTICE TO ALL EMPLOYEES CONCERNING THE
REFUSAL TO SIGN THE AGREEMENT. THE ACTIVITY APPEALED ONLY THE POSTING
PROVISIONS OF THE ASSISTANT SECRETARY'S DECISION, CONTENDING THAT THE
REMEDY WAS INAPPROPRIATE SINCE ITS ACTION WAS PREDICATED SOLELY ON THE
EXISTENCE OF A QUESTION CONCERNING REPRESENTATION CAUSED BY A
REORGANIZATION WHICH IT HAD TIMELY ATTEMPTED TO RESOLVE BY FILING AN
ELECTION PETITION. IN AFFIRMING THE ASSISTANT SECRETARY'S DECISION, THE
COUNCIL STATED:
" . . . WHERE AN AGENCY HAS ACTED IN APPARENT GOOD FAITH AND AVAILED
ITSELF OF THE REPRESENTATION PROCEEDINGS OFFERED IN ORDER TO RESOLVE
LEGITIMATE QUESTIONS AS TO THE CORRECT BARGAINING UNIT, AND WHERE NO
OTHER EVIDENCE OF MISCONDUCT IS INVOLVED, AND AGENCY SHOULD NOT BE
FORCED TO ASSUME THE RISK OF VIOLATING EITHER SECTION 19(A)(3) OR
SECTION 19(A)(6) DURING THE PERIOD IN WHICH THE UNDERLYING
REPRESENTATION ISSUE IS STILL PENDING BEFORE THE ASSISTANT SECRETARY.
"RATHER, WE BELIEVE THAT PROCEDURES CAN AND MUST BE DEVISED WHICH
WILL PERMIT AN AGENCY TO FILE A REPRESENTATION PETITION IN GOOD FAITH,
TO AWAIT THE DECISION OF THE ASSISTANT SECRETARY WITH RESPECT TO THAT
PETITION, AND TO BE GIVEN A REASONABLE OPPORTUNITY TO COMPLY WITH THE
CONSEQUENCES WHICH FLOW FROM THE REPRESENTATION DECISION, BEFORE THAT
AGENCY INCURS THE RISK OF AN UNFAIR LABOR PRACTICE FINDING. SINCE IT
DOES NOT VIOLATE THE ORDER TO RAISE A QUESTION CONCERNING REPRESENTATION
IN GOOD FAITH, THE PROCEDURES EMPLOYED TO EFFECTUATE THE PURPOSES OF THE
ORDER MUST PERMIT AN AGENCY TO DO SO WITHOUT RISKING AN UNFAIR LABOR
PRACTICE.
"IN SO HOLDING, WE POINT OUT THAT REPRESENTATION PROCEEDINGS SHOULD
BE GIVEN PRIORITY ONLY WHERE APPROPRIATE. FOR EXAMPLE, IF OTHER
EVIDENCE OF MISCONDUCT IS INVOLVED, OR, IF AFTER THE REPRESENTATION
DECISION HAS BEEN ISSUED, AN AGENCY STILL REFUSES TO ACCORD A LABOR
ORGANIZATION THE REPRESENTATIVE STATUS TO WHICH IT IS ENTITLED, IT IS,
OF COURSE APPROPRIATE TO PROCEED WITH AN UNFAIR LABOR PRACTICE
COMPLAINT. WE HOLD ONLY THAT WHERE RELATED REPRESENTATION AND UNFAIR
LABOR PRACTICE CASES INVOLVE THE SAME UNDERLYING ISSUE, AND WHERE THERE
IS NO OTHER EVIDENCE OF MISCONDUCT, THE ORDER REQUIRES THAT THE AGENCY
BE PERMITTED TO REMAIN NEUTRAL DURING THE PENDENCY OF THE REPRESENTATION
PETITION WITHOUT INCURRING THE RISK OF AN UNFAIR LABOR PRACTICE
FINDING."
WHILE I APPRECIATE THE RESPONDENT'S DILEMMA, I CAN FIND NO SOLACE FOR
ITS UNILATERAL ACTIONS IN THE ABOVE CITED COUNCIL DECISION. THE
DECISION, AS I READ IT, CALLS FOR NO SANCTIONS TO BE IMPOSED UPON AN
AGENCY PURSUANT TO SECTION 19(A) OF THE EXECUTIVE ORDER FOR ANY INACTION
ON ITS PART PENDING DECISION ON A TIMELY FILED PETITION SEEKING THE
RESOLUTION OF A QUESTION CONCERNING REPRESENTATION. THUS, THE COUNCIL
NOTED THAT "AN AGENCY SHOULD NOT BE FORCED TO ASSUME THE RISK OF
VIOLATING SECTION 19(A)(3) AND (6)" AND SHOULD BE "PERMITTED TO REMAIN
NEUTRAL DURING THE PENDENCY OF THE REPRESENTATION PETITION." INDEED,
THIS IS PRECISELY WHAT OCCURRED IN THE CASE THEN BEING REVIEWED BY THE
COUNCIL, I.E., THE AGENCY TOOK AN ACTION WITH RESPECT TO SIGNING THE
PREVIOUSLY NEGOTIATED AGREEMENT. HERE, THE RESPONDENT DID NOT REMAIN
NEUTRAL OR INACTIVE, BUT ON THE CONTRARY, IRRESPECTIVE OF THE PENDING
PETITION DESIGNED TO RESOLVE THE QUESTION CONCERNING REPRESENTATION, IT
UNILATERALLY TOOK ACTION WHICH HAD A SUBSTANTIAL IMPACT ON THE
EMPLOYEES' WORKING CONDITIONS. WHILE HIND SIGHT REFLECTS THE WISDOM OF
SUCH ACTION SINCE A REDUCTION IN FORCE DID SUBSEQUENTLY OCCUR, NO
EVIDENCE, WHATSOEVER, APPEARS IN THE RECORD JUSTIFYING THE TIMING OF THE
ACTION. IN THE ABSENCE OF ANY EVIDENCE INDICATING SOME BUSINESS
EXIGENCY FOR THE ACTION, I AM CONSTRAINED TO FIND THAT THE RESPONDENT'S
ACTION IN CHANGING THE AREA OF COMPETITION WITHOUT FIRST CONFERRING WITH
NFFE WAS VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER. /7/
AS TO RESPONDENT'S REFUSAL TO MEET WITH NFFE RELATIVE TO ITS PENDING
COMPLAINT WITHOUT THE PRESENCE OF IBEW REPRESENTATIVES, I CONCLUDE THAT
RESPONDENT COMMITTED A FURTHER VIOLATION OF SECTION 19(A)(6) OF THE
ORDER. THE OBLIGATION TO MEET AND CONFER IN GOOD FAITH IS NOT SATISFIED
BY ANY MEETING, BUT ONLY THOSE HELD IN AN ATMOSPHERE CONDUCIVE TO
SETTLEMENT OF THE PERTINENT MATTERS AND WHERE MEANINGFUL DISCUSSIONS MAY
OCCUR. WHILE EITHER PARTY IS FREE TO SELECT ITS OWN BARGAINING
REPRESENTATIVE AND CONSULTANTS, NEITHER MAY INSIST UPON THE ATTENDANCE
OF OUTSIDERS, PARTICULARLY A RIVAL UNION, AS A CONDITION PRECEDENT TO A
MEETING. ATTENDANCE OF A RIVAL UNION MIGHT WELL PREVENT THE USUAL GIVE
AND TAKE NORMALLY UNDERLYING THE SETTLEMENT OF MATTERS AFFECTING WORKING
CONDITIONS.
MOREOVER, WHILE IT MAY BE TRUE, AS CONTENDED BY RESPONDENT, THAT THE
REFUSAL WAS PREDICATED ON A DESIRE TO REMAIN NEUTRAL PENDING THE OUTCOME
OF THE REPRESENTATION PETITION AS PROVIDED IN THE COUNCIL DECISION CITED
SUPRA, THE FACT REMAINS, HOWEVER, THAT BUT FOR THE RESPONDENT'S PRIOR
UNILATERAL ACTION NO MEETING WOULD HAVE BEEN NECESSARY. IN THESE
CIRCUMSTANCES, TO ALLOW RESPONDENT TO NOW STAND BEHIND THE SKIRTS OF
NEUTRALITY ON AN ISSUE WHICH IT, AND IT ALONE, CREATED, WOULD DEFEAT THE
PURPOSES OF THE EXECUTIVE ORDER. ADDITIONALLY, WHILE IT IS HIGHLY
POSSIBLE OR PROBABLE THAT ANY DISCUSSIONS WOULD BY NECESSITY INVOLVE
ISSUES OF INTEREST TO THE IBEW, NO SUCH FACT HAS BEEN ESTABLISHED.
ACCORDINGLY, UNTIL SUCH TIME AS ISSUES INVOLVING THE IBEW DEVELOP,
RESPONDENT IS NOT FREE TO INSIST PREMATURELY UPON IBEW REPRESENTATION AT
ANY MEETING TO BE HELD WITH NFFE.
LASTLY, AS RESPONDENT'S ACTIONS IN THIS LATTER RESPECT DO NOT APPEAR
TO CONSTITUTE ASSISTANCE TO THE IBEW WITHIN THE MEANING OF THE EXECUTIVE
ORDER, I CONCLUDE THAT RESPONDENT DID NOT VIOLATE SECTION 19(A)(3) OF
THE ORDER AND HEREBY RECOMMEND DISMISSAL OF THE ALLEGATION TO THIS
EFFECT CONTAINED IN THE COMPLAINT.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT WHICH IS
VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER BY VIRTUE OF ITS ACTIONS IN
UNILATERALLY CHANGING THE AREA OF COMPETITION AND REFUSING TO MEET WITH
NFFE, I SHALL RECOMMEND TO THE ASSISTANT SECRETARY THAT HE ADOPT THE
FOLLOWING RECOMMENDED ORDER DESIGNED TO RE-ESTABLISH THE STATUS QUO AND
EFFECTUATE THE PURPOSES OF EXECUTIVE ORDER 11491.
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
INTERIOR, BUREAU OF RECLAMATION, YUMA PROJECTS OFFICE, YUMA, ARIZONA,
SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY CHANGING THE AREA OF COMPETITION FOR PURPOSES OF
REDUCTION IN-FORCE-WITHIN THE YUMA PROJECTS OFFICE WITHOUT CONFERRING OR
NEGOTIATING WITH LOCAL 1487, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
THE EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES ENGAGED IN THE DREDGING
FUNCTIONS.
(B) INSISTING THAT IBEW REPRESENTATIVES BE INVITED TO ATTEND ALL
MEETINGS BETWEEN THE YUMA PROJECTS OFFICE AND NFFE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) RE-ESTABLISH THE AREA OF COMPETITION AT THE YUMA PROJECTS OFFICE
TO THAT WHICH EXISTED PRIOR TO JANUARY 23, 1973, AND RE-EVALUATE ALL
LAY-OFFS MADE SUBSEQUENT TO SUCH DATE IN ACCORDANCE THEREWITH.
(B) IF, FOLLOWING THE ACTION TAKEN IN ACCORDANCE WITH PARAGRAPH 2(A)
ABOVE, IT SHOULD DEVELOP THAT ANY EMPLOYEE WAS INCORRECTLY LAID OFF,
SUCH EMPLOYEE OR EMPLOYEES SHALL BE REINSTATED TO HIS APPROPRIATE
POSITION AND DULY REIMBURSED FOR ANY LOSS OF BACK PAY OCCASIONED BY HIS
LAY-OFF.
(C) UPON REQUEST CONFER AND NEGOTIATE WITH LOCAL 1487, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES WITH RESPECT TO ANY CHANGES IN THE AREA
OF COMPETITION FOR PURPOSES OF REDUCTION IN FORCES.
(D) POST AT ITS YUMA PROJECTS OFFICE, YUMA, ARIZONA, 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 PROJECT MANAGER OR
OTHER APPROPRIATE OFFICIAL IN CHARGE OF THE YUMA PROJECTS OFFICE, YUMA,
ARIZONA, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED. THE PROJECT MANAGER SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED AND DEFACED
OR COVERED BY ANY OTHER MATERIAL.
(E) 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: JANUARY 7, 1974
WASHINGTON, D.C.
WE WILL NOT UNILATERALLY CHANGE THE AREA OF COMPETITION FOR PURPOSES
OF REDUCTION IN FORCE WITHIN THE YUMA PROJECTS OFFICE WITHOUT
NEGOTIATING OR CONFERRING WITH LOCAL 1487, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES.
WE WILL NOT INSIST THAT REPRESENTATIVES OF THE INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS BE INVITED TO ATTEND ALL MEETINGS
BETWEEN THE YUMA PROJECTS OFFICE AND LOCAL 1487, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES.
WE WILL RE-ESTABLISH THE AREA OF COMPETITION FOR PURPOSES OF
REDUCTION IN FORCE AT THE YUMA PROJECTS OFFICE TO THAT WHICH EXISTED
PRIOR TO JANUARY 23, 1973, AND RE-EVALUATE ALL LAYOFFS MADE SUBSEQUENT
TO SUCH DATE IN ACCORDANCE THEREWITH.
WE WILL SHOULD IT DEVELOP THAT ANY EMPLOYEE WAS INCORRECTLY LAID OFF,
REINSTATE SUCH EMPLOYEE OR EMPLOYEES AND MAKE HIM WHOLE FOR ANY LOSS OF
BACK PAY OCCASIONED BY HIS LAYOFF.
WE WILL UPON REQUEST CONFER AND NEGOTIATE WITH LOCAL 1487, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES WITH RESPECT TO ANY CHANGES IN THE AREA
OF COMPETITION FOR PURPOSES OF REDUCTION IN FORCES.
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 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 9061 FEDERAL OFFICE
BUILDING, 450 GOLDEN GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
/1/ RESPONDENT FILED A POST-HEARING BRIEF WHICH HAS BEEN DULY
CONSIDERED.
/2/ IT APPEARS THAT THE PRIME MISSION OF THE COLORADO PROJECT WAS
DREDGING, WHILE THE YUMA PROJECT WAS CONCERNED WITH IRRIGATION.
/3/ AT THIS TIME THE COLORADO RIVER PROJECT OFFICE CEASED TO BE A
VIABLE ENTITY.
/4/ UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND SURGERY,
GREAT LAKES NAVAL HOSPITAL, ILLINOIS. A/SLMR 289.
/5/ SEE FOOTNOTE 4 SUPRA,.
/6/ UNDER ALL THE CIRCUMSTANCES HERE DISCLOSED, SUCH CONTENTIONS, IF
MADE, WOULD BE, AND ARE HEREBY FOUND, ON THE BASIS OF APPLICABLE
DECISIONS OF BOTH THE ASSISTANT SECRETARY AND THE COUNCIL CITED SUPRA,
TO BE WITHOUT MERIT.
/7/ A CONTRARY CONCLUSION MIGHT WELL ALLOW AN AGENCY TO ESCAPE THE
OBLIGATIONS UNDER THE EXECUTIVE ORDER BY UNILATERALLY CREATING A
CONDITION OR SITUATION WHICH COULD CAST SUSPICION ON THE APPROPRIATENESS
OF THE BARGAINING UNIT OR A UNION'S REPRESENTATIVE STATUS AND ESTABLISH
A BASIS FOR A REPRESENTATION PETITION. THEREAFTER, IRRESPECTIVE OF THE
MERITS OF SUCH PENDING PETITION, THE AGENCY COULD FREELY WITHOUT MEETING
AND CONFERRING IN GOOD FAITH AS REQUIRED BY THE ORDER, INSTITUTE
UNILATERAL CHANGES IN MATTERS AFFECTING WORKING CONDITIONS.
4 A/SLMR 400; P. 384; CASE NOS. 41-3126(CA), 41-3128(CA),
41-3129(CA); JUNE 21, 1974.
UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY
A/SLMR NO. 400
THIS PROCEEDING AROSE UPON THE FILING OF THREE UNFAIR LABOR PRACTICE
COMPLAINTS BY THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 830, AFL-CIO (COMPLAINANT), AGAINST THE UNITED
STATES DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE,
KENTUCKY (RESPONDENT).
IN THE FIRST COMPLAINT, IT WAS ALLEGED, IN SUBSTANCE, THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1), (2), (5), AND (6) OF EXECUTIVE
ORDER 11491 BY UNILATERALLY CHANGING THE TERMS AND CONDITIONS OF ITS
NEGOTIATED AGREEMENT WITH THE COMPLAINANT BY DELETING THE
CLASSIFICATIONS OF PROGRESSMAN FROM THE BARGAINING UNIT WITHOUT FIRST
CONSULTING OR NEGOTIATING WITH THE COMPLAINANT. BECAUSE, AS FOUND BY
THE ADMINISTRATIVE LAW JUDGE, THE PROGRESSMEN INVOLVED HAD BEEN
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER SINCE 1953,
THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT'S REFUSAL TO RECOGNIZE
THE COMPLAINANT AS THEIR EXCLUSIVE BARGAINING REPRESENTATIVE WAS NOT
VIOLATIVE OF THE ORDER. IN THIS CONNECTION, THE ASSISTANT SECRETARY DID
NOT VIEW THE RESPONDENT'SCONDUCT AS AN ATTEMPT TO CHANGE UNILATERALLY
THE SCOPE OF THE EXISTING BARGAINING UNIT BUT, RATHER, AS AN ATTEMPT TO
ASSURE THAT PROGRESSMEN WHO ADMITTEDLY WERE PERFORMING SUPERVISORY
FUNCTIONS WOULD NOT BE INCLUDED IN THE BARGAINING UNIT. THE ASSISTANT
SECRETARY NOTED, HOWEVER, THAT THIS WAS NOT TO SAY THAT IF PROGRESSMEN
WERE HIRED SUBSEQUENTLY WHO DID NOT EXERCISE SUPERVISORY FUNCTIONS HE
WOULD CONSIDER THEM PROPERLY TO BE EXCLUDED FROM THE UNIT.
IN ITS SECOND COMPLAINT, THE COMPLAINANT ALLEGED, IN SUBSTANCE, THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY
EXCLUDING AN OBSERVER, REPRESENTING THE COMPLAINANT, FROM PARTICIPATING
IN THE RESOLUTION OF AN EMPLOYEE'S GRIEVANCE FILED UNDER THE
RESPONDENT'S GRIEVANCE PROCEDURE. THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) BY DEPRIVING THE COMPLAINANT OF A SPECIFIC RIGHT UNDER
SECTION 10(E) OF THE ORDER. IN THIS CONNECTION, THE ADMINISTRATIVE LAW
JUDGE FOUND: (1) THE GRIEVANCE EXAMINER'S INQUIRY WAS A FORMAL
DISCUSSION WITHIN THE MEANING OF SECTION 10(E); (2) IN HIS DISCUSSIONS
WITH EMPLOYEES, THE GRIEVANCE EXAMINER WAS A DESIGNATED REPRESENTATIVE
OF MANAGEMENT OR AGENT OF MANAGEMENT FOR THE PURPOSES OF SECTION 10(E);
(3) THE SUBJECT MATTER OF THE INQUIRY CONCERNED A GRIEVANCE, PERSONNEL
POLICY OR PRACTICE AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE UNIT
WITHIN THE MEANING OF SECTION 10(E); (4) THE COMPLAINANT'S RIGHT TO BE
AFFORDED THE OPPORTUNITY TO BE REPRESENTED IN THIS MATTER IS BASED UPON
THE EXPRESS PROVISIONS OF SECTION 10(E) AND IS NOT MERELY A CONTRACTUAL
RIGHT; (5) THE PARTIES' NEGOTIATED AGREEMENT NOWHERE EXPRESSLY STATED
OR INDICATED THAT THIS COMPLAINANT WAS FOREGOING OR WAIVING ALL RIGHTS
RELATIVE TO FORMAL DISCUSSIONS UNDER SECTION 10(E); AND (6) AT NO TIME
DID THE COMPLAINANT INDICATE TO THE RESPONDENT THAT IT WAS NOT
INTERESTED IN BEING PRESENT AT THE SUBJECT DISCUSSIONS, THE TIMING OF
WHICH WAS A MATTER PARTICULARLY WITHIN THE KNOWLEDGE OF THE RESPONDENT.
BY ITS THIRD COMPLAINT, THE COMPLAINANT ALLEGED, IN SUBSTANCE, THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY FAILING
TO RECOGNIZE THE COMPLAINANT AS THE REPRESENTATIVE OF AN EMPLOYEE
INVOLVED IN AN ADVERSE ACTION PROCEEDING. THE ADMINISTRATIVE LAW JUDGE,
ALTHOUGH RECOMMENDING A FINDING OF VIOLATION OF SECTION 19(A)(1) BASED
ON A SUPERVISOR'S IMPROPER STATEMENTS TO TWO OFFICIALS OF THE
COMPLAINANT, CONCLUDED THAT NEITHER SECTION 10(E) OF THE ORDER NOR THE
PARTIES' NEGOTIATED AGREEMENT CONFERRED UPON THE COMPLAINANT THE
ABSOLUTE RIGHT TO REPRESENT THE EMPLOYEE INVOLVED IN CONNECTION WITH THE
ADVERSE ACTION PROCEEDING.
THE ASSISTANT SECRETARY NOTED THAT SECTION 10(E) CLEARLY IMPOSES UPON
EXCLUSIVE REPRESENTATIVES AN AFFIRMATIVE OBLIGATION TO REPRESENT THE
INTERESTS OF ALL UNIT EMPLOYEES. GIVEN THE PARTICULAR CIRCUMSTANCES OF
THIS CASE, INVOLVING A UNIT EMPLOYEE WHO WAS THE SUBJECT OF AN ADVERSE
ACTION PROCEEDING, THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THAT THE COMPLAINANT AS THE EMPLOYEE'S
EXCLUSIVE REPRESENTATIVE HAD AN ONGOING OBLIGATION UNDER SECTION 10(E)
TO REPRESENT THE INTERESTS OF THE EMPLOYEE UNTIL SUCH TIME AS HE
INDICATED HIS DESIRE TO CHOOSE HIS OWN REPRESENTATIVE PURSUANT TO
SECTION 7(D)(1) OF THE ORDER. CONTRARY TO THE ADMINISTRATIVE LAW JUDGE,
THE ASSISTANT SECRETARY FURTHER FOUND THAT NONE OF THE PROVISIONS OF THE
PARTIES' NEGOTIATED AGREEMENT CONSTITUTED A CLEAR AND UNMISTAKABLE
WAIVER OF RIGHTS OR OBLIGATIONS FLOWING FROM SECTION 10(E) OF THE ORDER.
NOR, IN THE ASSISTANT SECRETARY'S VIEW, DID SECTION 19(D) OF THE ORDER
REQUIRE DISMISSAL OF THIS COMPLAINT. THUS, THE ASSISTANT SECRETARY
CONCLUDED THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE ISSUE AS TO
WHETHER, UNDER THE EXECUTIVE ORDER, THE COMPLAINANT HAD THE OBLIGATION
TO REPRESENT THE EMPLOYEE INVOLVED BY VIRTUE OF ITS EXCLUSIVE
REPRESENTATIVE STATUS COULD NOT BE RAISED PROPERLY UNDER THE ADVERSE
ACTION APPEALS PROCEDURE INVOLVED HEREIN.
ACCORDINGLY, THE ASSISTANT SECRETARY CONCLUDED, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S FAILURE TO RECOGNIZE THE
COMPLAINANT AS THE REPRESENTATIVE OF THE UNIT EMPLOYEE INVOLVED IN THE
ADVERSE ACTION PROCEEDING WAS IN DEROGATION OF THE COMPLAINANT'S
EXCLUSIVE REPRESENTATIVE STATUS AND, THEREBY, VIOLATED SECTION 19(A)(6)
OF THE ORDER. MOREOVER, IN THE ASSISTANT SECRETARY'S VIEW, SUCH CONDUCT
HAD A CONCOMITANT COERCIVE EFFECT UPON THE RIGHTS OF UNIT EMPLOYEES
ASSURED BY THE ORDER IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER. IN
AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
FOUND THAT A SUPERVISOR'S IMPROPER STATEMENTS TO TWO OFFICIALS OF THE
COMPLAINANT ALSO CONSTITUTED A VIOLATION OF SECTION 19(A)(1) OF THE
ORDER.
UNDER THESE 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.
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 JANUARY 11, 1974, ADMINISTRATIVE LAW JUDGE SALVATORE J. ARRIGO
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINTS IN CASES NOS. 41-3128(CA) AND
41-3129(CA), AND HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED
IN THE COMPLAINT IN CASE NO. 41-3126(CA). WITH REGARD TO THE COMPLAINTS
IN CASES NOS. 41-3128(CA) AND 41-3129(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
RECOMMENDATION, AND THAT THE COMPLAINT IN CASE NO. 41-3126(CA) BE
DISMISSED IN ITS ENTIRETY. THEREAFTER, BOTH THE COMPLAINANT AND THE
RESPONDENT 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
RECOMMENDATION AND THE ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEFS FILED BY BOTH PARTIES, I HEREBY ADOPT
THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS, AND
RECOMMENDATIONS, /2/ EXCEPT AS MODIFIED BELOW.
THE COMPLAINT IN CASE NO. 41-3129(CA) ALLEGED, IN SUBSTANCE, THAT THE
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) BY FAILING TO RECOGNIZE THE
COMPLAINANT AS THE REPRESENTATIVE OF AN EMPLOYEE INVOLVED IN AN ADVERSE
ACTION PROCEEDING. THE ADMINISTRATIVE LAW JUDGE, ALTHOUGH RECOMMENDING
A FINDING OF VIOLATION OF SECTION 19(A)(1) OF THE ORDER BASED ON A
SUPERVISOR'S IMPROPER STATEMENTS TO TWO OFFICIALS OF THE COMPLAINANT,
CONCLUDED THAT NEITHER SECTION 10(E) OF THE ORDER NOR THE PARTIES'
NEGOTIATED AGREEMENT CONFERRED UPON THE COMPLAINANT THE ABSOLUTE RIGHTS
TO REPRESENT THE EMPLOYEE INVOLVED IN CONNECTION WITH THE ADVERSE ACTION
PROCEEDING. HE NOTED THAT SECTION 10(E) MUST BE VIEWED IN LIGHT OF
SECTION 7(D)(1) OF THE ORDER, AND THAT IF A LABOR ORGANIZATION
AUTOMATICALLY BECAME A UNIT EMPLOYEE'S REPRESENTATIVE IN THIS CONTEXT,
THEN THE CHOICE RESERVED FOR SUCH AN EMPLOYEE UNDER SECTION 7(D)(1) TO
CHOOSE HIS OWN REPRESENTATIVE WOULD BE MEANINGLESS. THE ADMINISTRATIVE
LAW JUDGE ALSO FOUND THAT THE COMPLAINANT, BY THE TERMS OF ITS
NEGOTIATED AGREEMENT, HAD ACKNOWLEDGED THAT UNLESS SPECIFICALLY CHOSEN
BY THE INDIVIDUAL EMPLOYEE INVOLVED, IT WOULD NOT ACT AS HIS
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING. MOREOVER, HE CONCLUDED
THAT, UNDER THE CIRCUMSTANCES, FURTHER PROCEEDINGS IN THIS MATTER WERE
UNWARRANTED BASED ON SECTION 19(D) OF THE ORDER.
SECTION 10(E) OF THE ORDER /3/ CLEARLY IMPOSES UPON EXCLUSIVE
REPRESENTATIVES AN AFFIRMATIVE OBLIGATION TO REPRESENT THE INTERESTS OF
ALL UNIT EMPLOYEES. /4/ UNDER THE PARTICULAR CIRCUMSTANCES OF THIS
CASE, INVOLVING A UNIT EMPLOYEE WHO IS THE SUBJECT OF AN ADVERSE ACTION
PROCEEDING, I FIND THAT THE COMPLAINANT (THE EMPLOYEE'S EXCLUSIVE
REPRESENTATIVE) HAD AN ONGOING OBLIGATION UNDER SECTION 10(E) OF THE
ORDER TO REPRESENT THE INTERESTS OF THE EMPLOYEE UNTIL SUCH TIME AS HE
INDICATED HIS DESIRE TO CHOOSE HIS OWN REPRESENTATIVE PURSUANT TO
SECTION 7(D)(1) OF THE ORDER. /5/ FURTHER, I FIND THAT THE PROVISIONS
CONTAINED IN ARTICLE 14, SECTION 2 AND 3, OF THE PARTIES' NEGOTIATED
AGREEMENT DO NOT CONSTITUTE A CLEAR AND UNMISTAKABLE WAIVER OF RIGHTS OR
OBLIGATIONS FLOWING FROM THE ORDER. /6/ THUS, AS FOUND BY THE
ADMINISTRATIVE LAW JUDGE, BY VIRTUE OF THESE AGREEMENT PROVISIONS THE
COMPLAINANT RECOGNIZED THE ROLE OF THE INDIVIDUAL EMPLOYEE'S CHOICE IN
CHOOSING HIS OWN REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING.
HOWEVER, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND NO CLEAR
INDICATION IN THESE PROVISIONS THAT, UNTIL AN EMPLOYEE MAKES A CHOICE,
HIS EXCLUSIVE REPRESENTATIVE HAS NO OBLIGATION TO REPRESENT HIS
INTERESTS PURSUANT TO SECTION 10(E) OF THE ORDER. NOR DO I FIND THAT
SECTION 19(D) OF THE ORDER IS DISPOSITIVE IN THIS MATTER. IN THIS
REGARD, IT WAS NOTED THAT AT THE ADVERSE ACTION HEARING BEFORE THE CIVIL
SERVICE COMMISSION, ATLANTA REGION, BOTH THE RESPONDENT AND THE
COMPLAINANT TOOK THE POSITION THAT THE QUESTION OF THE COMPLAINANT'S
RIGHT TO REPRESENT AN EMPLOYEE UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WAS A SEPARATE AND DISTINCT ISSUE AND SHOULD NOT ENTER INTO THE CIVIL
SERVICE COMMISSION'S HEARING. FURTHER, IN ITS DECISION OF OCTOBER 26,
1971, THE CIVIL SERVICE COMMISSION, ATLANTA REGION, INDICATED THAT WITH
RESPECT TO THE COMPLAINANT'S "UNFAIR LABOR PRACTICES CLAIM, ALLEGING
THAT THE AGENCY'S FAILURE TO ALLOW MR. SEIDL, ACTING IN HIS CAPACITY AS
AN OFFICIAL OF THE UNION, TO REPRESENT THE EMPLOYEE . . . THAT IS NOT AT
ISSUE HERE." UNDER THESE CIRCUMSTANCES, I CONCLUDE THAT THE ISSUE AS TO
WHETHER, UNDER THE EXECUTIVE ORDER, THE COMPLAINANT HAD THE OBLIGATION
TO REPRESENT THE EMPLOYEE INVOLVED BY VIRTUE OF ITS EXCLUSIVE
REPRESENTATIVE STATUS COULD NOT BE RAISED PROPERLY UNDER THE ADVERSE
ACTION APPEALS PROCEDURE INVOLVED HEREIN. /7/
BASED ON THE FOREGOING, I FIND THAT THE RESPONDENT'S FAILURE TO
RECOGNIZE THE COMPLAINANT AS THE REPRESENTATIVE OF THE UNIT EMPLOYEE
INVOLVED IN THE ADVERSE ACTION PROCEEDING WAS IN DEROGATION OF THE
COMPLAINANT'S EXCLUSIVE REPRESENTATIVE STATUS AND, THEREBY, VIOLATED
SECTION 19(A)(6) OF THE ORDER. MOREOVER, IN MY VIEW, SUCH CONDUCT HAD A
CONCOMITANT COERCIVE EFFECT UPON THE RIGHTS OF UNIT EMPLOYEES ASSURED BY
THE ORDER IN VIOLATION OF 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 CERTAIN 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 UNITED STATES
DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY,
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 INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, THE
EMPLOYEE'S 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 THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, 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. REFUSING TO ALLOW THE INTERNATIONAL ASSOCIATION OF MACHINISTS
REGARDING THE CLOSING OF PORTIONS OF THE WADSWORTH HOSPITAL CENTER
EXCLUSIVE REPRESENTATIVE, TO REPRESENT THE INTERESTS OF ANY EMPLOYEE IN
THE BARGAINING UNIT WHO IS INVOLVED IN AN ADVERSE ACTION PROCEEDING
WHERE THERE IS NO INDICATION THAT THE EMPLOYEE HAS CHOSEN A
REPRESENTATIVE OTHER THAN THE EXCLUSIVE REPRESENTATIVE.
D. INFORMING ITS EMPLOYEES THAT AN OFFICIAL OF THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 830,
AFL-CIO, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN HIS OFFICIAL
CAPACITY, MAY NOT BE DESIGNATED AS AN EMPLOYEE'S REPRESENTATIVE IN
MAKING A REPLY TO A NOTICE OF PROPOSED ADVERSE ACTION.
E. 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. UPON REQUEST OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, CONSIDER GRIEVANCE EXAMINER
SHAW'S INQUIRY AND REPORT AND RECOMMENDATION RELATIVE TO PAUL PRINCE'S
APPEAL OF HIS LETTER OF REPRIMAND NULL AND VOID; RESCIND THE COMMANDING
OFFICER'S APPROVAL AND ADOPTION OF GRIEVANCE EXAMINER SHAW'S REPORT AND
RECOMMENDATION; AND 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.
B. NOTIFY THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 830, 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
EMPLOYEES IN THE UNIT.
C. NOTIFY THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 830, AFL-CIO, THAT IT WILL BE ALLOWED, AS THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, TO REPRESENT THE INTERESTS OF ANY
EMPLOYEE IN THE BARGAINING UNIT WHO IS INVOLVED IN AN ADVERSE ACTION
PROCEEDING WHERE THERE IS NO INDICATION THAT THE EMPLOYEE HAS CHOSEN A
REPRESENTATIVE OTHER THAN THE EXCLUSIVE REPRESENTATIVE.
D. POST AT ITS FACILITY AT THE NAVAL ORDNANCE STATION, LOUISVILLE,
KENTUCKY, 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, U.S. DEPARTMENT OF THE NAVY, NAVAL ORDNANCE STATION,
LOUISVILLE, KENTUCKY, 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.
E. 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 IN CASE NO. 41-3126(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 21, 1974
/1/ ON PAGE 26 OF HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE
LAW JUDGE INADVERTANTLY MISQUOTED SECTION 3 OF ARTICLE 14 OF THE
PARTIES' NEGOTIATED AGREEMENT. THE PHRASE "APPEALS THE UNION" SHOULD
READ "APPEALS THE ACTION." THIS INADVERTENT ERROR IS HEREBY CORRECTED.
/2/ BECAUSE, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE IN CASE NO.
41-3126(CA), THE PROGRESSMEN INVOLVED HAVE BEEN SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER SINCE 1953, I FIND THAT THE
RESPONDENT'S REFUSAL TO RECOGNIZED THE COMPLAINANT AS THEIR EXCLUSIVE
BARGAINING REPRESENTATIVE WAS NOT VIOLATIVE OF THE ORDER. IN THIS
CONNECTION, THE RESPONDENT'S CONDUCT HEREIN WAS NOT VIEWED AS AN ATTEMPT
TO CHANGE UNILATERALLY THE SCOPE OF THE EXISTING BARGAINING UNIT.
RATHER, UNDER THE CIRCUMSTANCES OF THIS CASE, IT IS CLEAR THAT THE
RESPONDENT MERELY WAS SEEKING TO ASSURE THAT PROGRESSMEN WHO ADMITTEDLY
WERE PERFORMING SUPERVISORY FUNCTIONS WOULD NOT BE INCLUDED IN THE
BARGAINING UNIT. HOWEVER, THIS IS NOT TO SAY THAT IF PROGRESSMEN WERE
HIRED SUBSEQUENTLY WHO DID NOT EXERCISE SUPERVISORY FUNCTIONS I WOULD
CONSIDER THEM PROPERLY TO BE EXCLUDED FROM THE UNIT.
/3/ SECTION 10(E) OF THE ORDER PROVIDES, IN PERTINENT PART, THAT
"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 INTERESTS OF ALL EMPLOYEES
IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP . . . " (EMPHASIS ADDED.)
/4/ SEE U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL, FORT
WAINWRIGHT, ALASKA, A/SLMR NO. 278.
/5/ AS NOTED ABOVE, SECTION 10(E) OF THE ORDER PROVIDES THAT AN
EXCLUSIVE REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS
OF ALL EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD
TO LABOR ORGANIZATION MEMBERSHIP. IT SHOULD BE NOTED, IN THIS REGARD,
THAT, WITHIN THE CONTEXT OF THIS OBLIGATION, CLEARLY AN EXCLUSIVE
REPRESENTATIVE RETAINS THE DESCRETION TO MAKE DECISIONS AS TO THE MERITS
OF A PARTICULAR UNIT EMPLOYEE'S CASE.
/6/ CF. NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA,
A/SLMR NO. 223.
/7/ CF. VETERANS ADMINISTRATION, VETERANS BENEFITS OFFICE, A/SLMR NO.
296.
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 EMPLOYEE'S REPRESENTATIVE IN MAKING A REPLY
TO A NOTICE OF PROPOSED ADVERSE ACTION.
WE WILL NOT REFUSE TO ALLOW THE INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, TO REPRESENT THE INTERESTS OF ANY
EMPLOYEE IN THE BARGAINING UNIT WHO IS INVOLVED IN AN ADVERSE ACTION
PROCEEDING WHERE THERE IS NO INDICATION THAT THE EMPLOYEE HAS CHOSEN A
REPRESENTATIVE OTHER THAN 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 THE
EXECUTIVE ORDER.
WE WILL, UPON REQUEST OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL 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
AND UNDER THE FORMAL ADMINISTRATIVE GRIEVANCE PROCEDURE AS THOUGH
GRIEVANCE EXAMINER SHAW HAD NOT YET CONDUCTED HIS INQUIRY INTO THE
MATTER.
WE WILL ALLOW THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 830, AFL-CIO, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, TO REPRESENT THE INTERESTS OF ANY EMPLOYEE IN THE
BARGAINING UNIT WHO IS INVOLVED IN AN ADVERSE ACTION PROCEEDING WHERE
THERE IS NO INDICATION THAT THE EMPLOYEE HAS CHOSEN A REPRESENTATIVE
OTHER THAN THE EXCLUSIVE REPRESENTATIVE.
DATED . . . BY . . . (SIGNATURE AND 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 OF 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.
IN THE MATTER OF
UNITED STATES DEPARTMENT OF THE NAVY
NAVAL ORDNANCE STATION
LOUISVILLE, KENTUCKY
AND
LOCAL LODGE 830, INTERNATIONAL THE ACTIVITY OR RESPONDENT). /1/
THE COMPLAINT IN CASE NO. 41-3126(CA), FILED ON AUGUST 23, 1972,
ALLEGES THAT THE ACTIVITY VIOLATED SECTION 19(A)(1), (2), (5) AND (6) OF
THE ORDER BY ". . . UNILATERALLY CHANGING THE TERMS AND CONDITIONS OF
THE LABOR AGREEMENT INCLUDING DELETING (SIC) A CLASSIFICATION FROM THE
BARGAINING UNIT AND (REFUSING) TO CONSULT OR NEGOTIATE WITH THE UNION IN
ADVANCE ON THE MATTER." THE COMPLAINT IN CASE NO. 41-3128(CA) WAS FILED
ON AUGUST 25, 1972, AND AMENDED ON SEPTEMBER 18, 1972. AS AMENDED, THE
COMPLAINT ALLEGES THAT THE ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF
THE ORDER " . . . BY EXCLUDING THE UNION OBSERVER FROM PARTICIPATING IN
THE RESOLUTION OF A GRIEVANCE UNDER THE AGENCY'S PROCEDURE." THIRD
COMPLAINT, CASE NO. 41-3129(CA) WAS FILED ON AUGUST 25, 1972, AND AS
AMENDED ON SEPTEMBER 18, 1972, ALLEGES THAT THE ACTIVITY VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BY "ON OR ABOUT 3 MAY 1972 . . .
REFUSING TO HONOR A TIME EXTENSION ON AN APPEAL ON THE GROUND THAT THE
CHIEF STEWARD WAS NOT AUTHORIZED TO REPRESENT THE APPELLANT." /2/
AT THE HEARING BOTH PARTIES WERE REPRESENTED AND WERE AFFORDED FULL
OPPORTUNITY TO ADDUCE EVIDENCE, CALL, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. ORAL ARGUMENT WAS WAIVED AND COMPREHENSIVE
BRIEFS WERE FILED BY THE PARTIES.
UPON THE ENTIRE RECORD IN THIS MATTER, FROM MY READING OF THE BRIEFS
AND MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE
FOLLOWING FINDINGS OF FACT AND CONCLUSIONS OF LAW:
(1) INTRODUCTION
SINCE 1963, AND ALL TIME MATERIAL HERETO THE UNION HAS BEEN THE
COLLECTIVE BARGAINING REPRESENTATIVE OF VARIOUS OF THE ACTIVITY'S
EMPLOYEES. THE UNION AND THE ACTIVITY ARE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT ENTERED INTO ON OR ABOUT DECEMBER 5, 1968. THE
AGREEMENT, WHICH WAS ENTERED IN 1970, WAS STILL IN EFFECT AT THE TIME OF
THESE PROCEEDINGS. /3/ THE COLLECTIVE BARGAINING UNIT ENCOMPASSES ABOUT
133 JOB CLASSIFICATIONS AND CONSISTS OF APPROXIMATELY 2,450 EMPLOYEES.
(2) THE ALLEGED UNFAIR LABOR PRACTICE CONDUCT - CASE NO. 41-3126(CA)
ON JUNE 9, 1972, ARBITRATOR DR. LOUIS C. KESSELMAN ISSUED HIS
DECISION WITH REGARD TO A GRIEVANCE FILED BY AN EMPLOYEE WHO RECEIVED A
DISCIPLINARY WARNING BY AN ACTING PROGRESSMAN FOR REFUSING TO CARRY OUT
INSTRUCTIONS. THE BASIC FACTS WHICH LED UP TO THE DISPUTE WERE SET
FORTH IN THE ARBITRATOR'S DECISION AS FOLLOWS: /4/
" . . . THE STATION MAINTAINS A PROGRESS BRANCH IN THE MANUFACTURING
DIVISION OF THE
INDUSTRIAL DEPARTMENT WHICH IS CHARGED WITH MOVING MATERIALS
THROUGHOUT THE PLANT AND HAS
EMPLOYEES LOCATED IN VARIOUS BUILDINGS. AT THE TIME THE GRIEVANCE
AROSE, MR. WALTER
P. SIMMONS WAS HEAD, PROGRESS BRANCH, AND MR. MURAL DANIEL WAS
SUPERVISORY PRODUCTION
CONTROLLER OVER THREE WORK AREAS. UNDER HIM, IN EACH OF THESE AREAS,
WAS A PROGRESSMAN AND AT
LEAST ONE ASSISTANT PROGRESSMAN. BOTH OF THE LATTER ARE MEMBERS OF
THE BARGAINING UNIT.
"ON 29 NOVEMBER 1971, PROGRESSMAN ANTHONY M. STITCH, CHARGED WITH
SCHEDULING AND EXPEDITING
THE FLOW OF WORK IN C-BUILDING WAS ABSENT FROM THE STATION. IN HIS
ABSENCE, ASSISTANT
PROGRESSMAN HAROLD J. HORLANDER DIRECTED FORK LIFT OPERATOR CLARENCE
WHARTON TO PERFORM A TASK
AND, WHEN HE FAILED TO DO SO, INFORMED HIM THAT HE WOULD "WRITE HIM
UP." THE FOLLOWING DAY,
ALTHOUGH PROGRESSMAN STITCH HAD RETURNED TO WORK, ASSISTANT
PROGRESSMAN HORLANDER PROCEEDED TO
MAKE AN ENTRY ON MR. WHARTON'S EMPLOYEE RECORD CARD.
"ORIGINALLY, MR. WHARTON'S GRIEVANCE WAS BASED UPON HIS BELIEF THAT
AN ASSISTANT
PROGRESSMAN CANNOT EXERCISE THE SUPERVISORY AUTHORITY OF A
PROGRESSMAN AND THAT, THEREFORE, IT
WAS NOT PROPER FOR MR. HORLANDER TO MAKE THE ENTRY IN HIS CARD AFTER
MR. STITCH RETURNED TO
WORK. NOW THE UNION HAS BROADENED ITS CLAIM TO CONTEND THAT NEITHER
A PROGRESSMAN, NOR AN
ASSISTANT PROGRESSMAN ACTING IN HIS ABSENCE, IS A FIRST LINE
SUPERVISOR."
THE QUESTION BEFORE THE ARBITRATOR WAS WHETHER PROGRESSMEN WERE FIRST
LINE SUPERVISORS FOR THE PURPOSE OF INITIATING DISCIPLINARY ACTION ON
THIER OWN RESPONSIBILITY AND AUTHORITY. DR. KESSELMAN FOUND, INTER ALIA
THAT:
"PROGRESSMEN HAVE EXERCISED SOME FIRST LINE SUPERVISORY
RESPONSIBILITY AT THE STATION FOR
MANY YEARS. DOCUMENTARY EVIDENCE AND TESTIMONY SUPPORT MANAGEMENT'S
CLAIM THAT PROGRESSMEN
DIRECTED THE WORK OF BARGAINING UNIT MEMBERS AND APPROVED THEIR
LEAVES AND RATED THEIR
PERFORMANCES. HOWEVER, THE EVIDENCE IS NOT NEARLY SO CLEAR AS FAR AS
WHETHER PROGRESSMEN HAVE
BEEN CONSIDERED TO BE FIRST LINE SUPERVISORS FOR THE INITIATION OF
DISCIPLINARY ACTION ON
THEIR OWN RESPONSIBILITY . . . "
BASED UPON THE EVIDENCE SUBMITTED TO HIM, DR. KASSELMAN CONCLUDED:
"THE PROGRESSMAN RATING AT THE STATION IS A MIXED POSITION WITH STAFF
AND SOME SUPERVISORY
RESPONSIBILITIES. HOWEVER, THE EVIDENCE DOES NOT BEAR OUT
MANAGEMENT'S CLAIM THAT IT HAS
PROPERLY DELEGATED THE RESPONSIBILITY OF IMPOSING DISCIPLINARY
PENALTIES UPON EMPLOYEES FOR
JUST CAUSE TO PROGRESSMEN, IN ACCORDANCE WITH THE ARTICLE 32, SECTION
5 REQUIREMENT THAT 'UNIT
EMPLOYEES WILL BE SPECIFICALLY ASSIGNED TO ONE (1) FIRST LINE
SUPERVISOR, WHO SHALL BE
RESPONSIBLE FOR . . . INITIATING DISCIPLINARY ACTIONS . . .
EMPLOYEES UNDER HIS
SUPERVISION.' ITS ACTION IS NOT SUPPORTED BY THE BASIC AGREEMENT, THE
PERTINENT JOB
DESCRIPTIONS, CLEAR PAST PRACTICE OR THE NAVY'S DEFINITION OF THE
PROGRESSMAN'S MAJOR WORK
FUNCTIONS."
ACCORDINGLY, DR. KESSELMAN RECOMMENDED THAT THE GRIEVANCE BE
SUSTAINED.
BY LETTER DATED JUNE 26, 1972, /5/ THE ACTIVITY NOTIFIED THE UNION
THAT IT WAS ACCEPTING THE ARBITRAROR'S RECOMMENDATION. HOWEVER, THE
ACTIVITY INFORMED THE UNION AT THIS TIME THAT IT INTENDED TO HAVE " . .
. THE JOB DESCRIPTION OF ALL PROGRESSMEN HAVING SUPERVISORY
RESPONSIBILITIES TO BE REWRITTEN TO INCLUDE 'FIRST LINE' SUPERVISORY
AUTHORITY AND RESPONSIBILITY AS OUTLINED IN ARTICLE 32 SECTION 5 OF THE
BASIC AGREEMENT." /6/
THE ACTIVITY ALSO NOTIFIED THE UNION THAT " . . . ALL PROGRESSMEN WHO
EXERCISE SUPERVISORY AUTHORITY WILL HENCEFORTH BE EXCLUDED FROM THE
BARGAINING UNIT, IN ACCORDANCE WITH SECTION 10 OF THE EXECUTIVE ORDER
11491."
THE UNION'S LETTER IN RESPONSE TO THE ACTIVITY, DATED JUNE 29, 1972,
/7/ ASSERTED THAT PROGRESSMEN WOULD NOT BE CONVERTED INTO SUPERVISORS BY
SIMPLY ADDING THE DUTY OF "INITIATING DISCIPLINARY ACTIONS" TO THEIR JOB
DESCRIPTIONS. IN ADDITION THE UNION CHARGED THAT UNILATERALLY CHANGING
THE JOB DESCRIPTION AND EXCLUDING PROGRESSMEN FROM THE BARGAINING UNIT
CONSTITUTED A VIOLATION OF SECTION 19(A)(1), (2), (5), AND (6) OF THE
ORDER. THE UNION REQUESTED THAT FURTHER ACTION BY THE ACTIVITY BE
WITHHELD AND SUGGESTED THAT THE PARTIES MEET IN AN EFFORT TO RESOLVE THE
DISPUTE.
THE PARTIES MET ON JULY 20 AND DISCUSSED THE UNION'S UNFAIR LABOR
PRACTICE CHARGE. BY LETTER DATED JULY 24, 1972, /8/ THE ACTIVITY GAVE
THE UNION ITS "FINAL ANSWER" AND INFORMED THE UNION THAT IT HAD NOT
CHANGED ITS POSITION ON REWRITING THE PROGRESSMEN'S JOB DESCRIPTION.
THE ACTIVITY FURTHER INFORMED THE UNION, HOWEVER, THAT IT WOULD MAKE A
STUDY OF THE SITUATION AFTER THE REWRITTEN JOB DESCRIPTIONS WERE
CLASSIFIED AND "IF IN OUR OPINION RETAINING THEM IN THE UNIT WOULD
VIOLATE EXECUTIVE ORDER 11491, AS AMENDED, WE WILL SUBMIT THE QUESTIONS
AS A UNIT CLARIFICATION QUESTION WITH THE ASSISTANT SECRETARY FOR
LABOR-MANAGEMENT RELATIONS FOR FINAL DETERMINATION."
A SUBSEQUENT LETTER FROM THE ACTIVITY TO THE UNION, DATED SEPTEMBER
20, 1972, /9/ RESTATES THE ACTIVITY'S POSITION ON THE MATTER. HOWEVER,
AFTER INFORMING THE UNION OF ITS INTENTION TO "STUDY" THE SITUATION AND
POSSIBLY SUBMITTING THE QUESTION TO THE ASSISTANT SECRETARY AS A UNIT
CLARIFICATION DETERMINATION, THE ACTIVITY FURTHER STATES: "MANAGEMENT
WILL NOT UNILATERALLY WITHDRAW PROGRESSMEN FOR THE UNIT." /10/
THE EVIDENCE ADDUCED AT THE HEARING /11/ REVEALS THAT THE PROGRESS
BRANCH IS LOCATED IN THE MANUFACTURING DIVISION OF THE ACTIVITY'S
INDUSTRIAL DEPARTMENT AND IS RESPONSIBLE FOR MAINTAINING SURVEILLANCE
OVER THE FLOW OF WORK IN AND BETWEEN ALL PRODUCTION ACTIVITIES IN THE
MANUFACTURING SHOPS OF THE PLANT IN ORDER TO ASSURE DELIVERY OF ITEMS IN
ACCORDANCE WITH JOB ORDER AND/OR PROJECT ORDER REQUIREMENTS. THE
PROGRESS BRANCH HAS APPROXIMATELY 106 EMPLOYEES ASSIGNED TO IT AND IS
HEADED BY WALTER P. SIMMONS, WHOSE OFFICIAL TITLE IS SUPERVISORY
PRODUCTION CONTROLLER, GS-12. REPORTING TO SIMMONS ARE TWO SUPERVISORY
PRODUCTION CONTROLLERS, GS-11, AND ONE FOREMAN RIGGER. ONE GS-11
SUPERVISORY PRODUCTION CONTROLLER HAS THREE PROGRESSMEN REPORTING TO HIM
AND THE OTHER GS-11 SUPERVISORY PRODUCTION CONTROLLER HAS FOUR
PROGRESSMEN WHO REPORT TO HIM. EACH PROGRESSMAN IS ASSIGNED TO A
SEPARATE COST CENTER OR BUILDING AND IS RESPONSIBLE FOR THE TIMELY
COMPLETION AND MOVEMENT OF THE WORK IN HIS AREA. PROGRESSMEN HAVE FROM
THREE TO FIFTEEN PROGRESS BRANCH EMPLOYEES PERMANENTLY ASSIGNED TO THEM.
THESE EMPLOYEES ARE CLASSIFIED AS ASSISTANT PROGRESSMEN, PRODUCTION
DISPATCHERS, FORKLIFT OPERATORS, METAL SAWING MACHINE OPERATORS, CLERK
TYPISTS, AND TRACTOR OPERATORS.
THE TESTIMONY OF JOHN R. FOGARTY, SR., A MEMBER OF THE ACTIVITY'S
NEGOTIATING TEAM DURING PRIOR COLLECTIVE BARGAINING NEGOTIATIONS WITH
THE UNION, DISCLOSES THAT WHEN THE FIRST CONTRACT WAS NEGOTIATED IN
1963, PROGRESSMEN "JUST ACCIDENTLY OR ERRONEOUSLY" WERE INCLUDED IN THE
UNIT AND "HAVE NEVER BEEN PICKED UP SINCE."
PROGRESSMEN'S DUTIES, RESPONSIBILITIES AND AUTHORITY HAVE REMAINED
VIRTUALLY THE SAME SINCE 1953, AT WHICH TIME THE ACTIVITY REORGANIZED
ITS OPERATION. IN CARRYING OUT HIS RESPONSIBILITY TO SEE THAT WORK
SCHEDULES ARE MET, A PROGRESSMAN MAY REASSIGN MEMBERS OF HIS WORK GROUP
FROM A REGULARLY ASSIGNED JOB TO ANOTHER JOB WITHIN THE GROUP. SUCH
REASSIGNMENTS ARE FREQUENTLY AND ARE OCCASIONED BY WORK-LOAD
REQUIREMENTS AND EMPLOYEE ABSENCES. A PROGRESSMAN MAY APPROVE OR
DISAPPROVE REQUESTS FOR ANNUAL LEAVE AND DETERMINES THE NUMBER OF PEOPLE
IN HIS WORK UNIT WHO WILL BE ALLOWED TO TAKE LEAVE AT ANY GIVEN TIME
(E.G., HOLIDAY PERIODS AND VACATIONS). THIS DETERMINATION IS BASED UPON
HIS INDEPENDENT JUDGMENT AS TO THE NUMBER OF EMPLOYEES HE NEEDS TO
ASSUME THAT THE WORK IN HIS AREA PROGRESSES AS SCHEDULED. A PROGRESSMAN
DETERMINES, WITH THE APPROVAL OF SUPERVISORS, THE NUMBER OF EMPLOYEES
NECESSARY FOR REGULARLY SCHEDULED WEEK-END OVERTIME WORK. HE
INDEPENDENTLY DECIDES IF OVERTIME IS REQUIRED IN AN EMERGENCY SITUATION
WITHOUT PRIOR APPROVAL, IF THE OVERTIME WORK IS TO BE PERFORMED THAT
DAY. HE CAN INITIATE A RECOMMENDATION FOR A PERFORMANCE OR SAFETY AWARD
AND SUCH AWARDS HAVE BEEN GRANTED. PROGRESSMEN MAY SEND HOME
INTOXICATED EMPLOYEES AND MAY EXCUSE TARDINESS OF EMPLOYEES IN THEIR
WORK GROUPS FOR PERIODS UP TO ONE-HALF HOUR BY INITIALING THE EMPLOYEES
TIME CARD. ON A ONCE-A-YEAR BASIS THEY RATE ASSIGNED EMPLOYEES AS TO
WHETHER THEY PERFORM AT A SATISFACTORY UNSATISFACTORY OR OUTSTANDING
LEVEL OF COMPETENCY AND DISCUSS WITH EMPLOYEES THEIR PERFORMANCE
INCLUDING ANY SHORTCOMINGS WHICH THE PROGRESSMAN MAY HAVE PERCEIVED.
PROGRESSMEN HAVE ISSUED TO EMPLOYEES ASSIGNED TO THEM VERBAL AND WRITTEN
WARNINGS ON SUCH MATTERS AS PERFORMANCE, ATTENDANCE AND SAFETY.
EMPLOYEE COMPLAINTS ARE DISCUSSED WITH THE PROGRESSMEN, OFTEN IN THE
PRESENCE OF A UNION STEWARD PRIOR TO FILING A WRITTEN GRIEVANCE. /12/
PROGRESSMEN AND THEIR ASSIGNED EMPLOYEES HAVE BEEN INFORMED THAT
PROGRESSMEN ARE THE EMPLOYEES' "SUPERVISORS" IN THEIR PARTICULAR WORK
AREAS. /13/
(3) DISCUSSION AND CONCLUSIONS - CASE NO. 41-3126(CA)
SECTION 2(C) OF THE ORDER PROVIDES:
"'SUPERVISOR' MEANS ANY EMPLOYEE HAVING AUTHORITY, IN THE INTEREST OF
AN AGENCY, TO HIRE,
TRANSFER, SUSPEND, LAYOFF, 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."
THE FEDERAL LABOR RELATIONS COUNCIL (FLRC) AND THE ASSISTANT
SECRETARY HAVE BOTH HELD THAT SECTION 1(C) OF THE ORDER IS WRITTEN IN
THE DISJUNCTIVE AND THEREFORE IF AN EMPLOYEE'S AUTHORITY INCLUDES EVEN
ONE OF THE FUNCTIONS DESCRIBED IN SECTION 2(C), HE WOULD BE A
"SUPERVISOR" WITHIN THE MEANING OF THE ORDER. /14/ MOREOVER, THE FLRC
HELD IN THE UNITED STATES NAVAL WEAPONS CENTER CASE THAT AN INDIVIDUAL
NEED NOT HAVE UNQUALIFIED OR UNREVIEWED AUTHORITY OVER SECTION 2(C)
FUNCTIONS IN ORDER TO BE FOUND A "SUPERVISOR" UNDER THE ORDER. SUCH
INTERPRETATION WOULD NOT BE CONSISTENT WITH THE REALITIES OF THE
EXERCISE OF AUTHORITY IN THE FEDERAL SECTOR. ACCORDINGLY I FIND THAT
THE RECORD HEREIN ESTABLISHES THAT AT ALL TIMES SINCE 1953, PROGRESSMEN
HAVE BEEN SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
SECTION 10(B)(2) OF THE ORDER PROVIDES, IN RELEVANT PART, " . . . A
UNIT SHALL NOT BE ESTABLISHED . . . IF IT INCLUDES . . . ANY MANAGEMENT
OFFICIAL OR SUPERVISOR, EXCEPT AS PROVIDED IN SECTION 24." /15/ HOWEVER,
SECTION 24(D) OF EXECUTIVE ORDER 11491, PRIOR TO THE 1971 AMENDMENTS,
PROVIDED THAT, "BY NO LATER THAN DECEMBER 31, 1970, ALL SUPERVISORS
SHALL BE EXCLUDED FROM UNITS OF FORMAL AND EXCLUSIVE RECOGNITION AND
FROM COVERAGE BY NEGOTIATED AGREEMENTS, EXCEPT AS PROVIDED IN PARAGRAPH
(A) OF THIS SECTION." /16/ THEREFORE IT APPEARS THAT AT THE TIME OF THE
ACTIVITY'S ALLEGED UNFAIR LABOR PRACTICE CONDUCT WITH REGARD TO THE
PROGRESSMEN, THE INCLUSION OF SUPERVISORS IN A UNIT WITH PREDOMINANTLY
NON-SUPERVISORY EMPLOYEES WAS IMPROPER. ACCORDINGLY, I FIND THAT
RESPONDENT'S REFUSAL TO CONTINUE TO RECOGNIZE THE UNION AS THE
COLLECTIVE BARGAINING REPRESENTATIVE OF PROGRESSMEN, HEREIN FOUND TO BE
SUPERVISORS WITHIN THE MEANING OF THE ORDER, WAS NOT IN VIOLATION OF THE
ORDER. I FURTHER FIND THAT THE ACTIVITY WAS NOT REQUIRED TO BARGAIN
WITH THE UNION REGARDING THE EXCLUSION OF PROGRESSMEN FROM THE UNIT
SINCE THEIR CONTINUED INCLUSION IN THE UNIT WOULD HAVE BEEN CONTRARY TO
THE DICTATES OF THE ORDER. /17/ MOREOVER, SINCE PROGRESSMEN WERE
SUPERVISORS AT ALL TIMES RELEVANT HEREIN, THE ACTIVITY WAS PRIVILEGED
UNDER THE ORDER TO CHANGE THEIR JOB DESCRIPTION BY ADDING THE WORDS
"INITIATES DISCIPLINARY ACTIONS" WITHOUT CONSULTING, CONFERRING OR
NEGOTIATING WITH THE UNION ON THE MATTER.
(4) RECOMMENDATION
BASED UPON THE ABOVE FINDINGS AND CONCLUSIONS, I RECOMMEND THAT THE
COMPLAINT IN CASE NO. 41-3126(CA) BE DISMISSED.
(5) THE ALLEGED UNFAIR LABOR PRACTICE CONDUCT - CASE NO.
41-3128(CA).
ON OR ABOUT SEPTEMBER 30, 1971, PAUL PRINCE, AN ORDNANCE EQUIPMENT
MECHANIC EMPLOYED BY THE ACTIVITY WAS INVOLVED IN A PHYSICAL ALTERCATION
WITH ANOTHER EMPLOYEE, JOHN KNOX. BOTH EMPLOYEES WERE MEMBERS OF THE
BARGAINING UNIT REPRESENTED BY THE UNION. APPROXIMATELY ONE WEEK LATER
A MEETING WAS HELD IN THE OFFICE OF GENERAL FORMAN KEUHN, AT WHICH TIME
MANAGEMENT INQUIRED INTO THE CIRCUMSTANCES SURROUNDING THE INCIDENT.
PRESENT AT THE MEETING WERE PRINCE, SEVERAL SUPERVISORS, AND SHOP
STEWARD RAYMOND YAGER. YAGER HAD BEEN INVITED TO THE MEETING BY EDWARD
EDDS, PRINCE'S IMMEDIATE SUPERVISOR.
ON OR ABOUT OCTOBER 14, 1971, ANOTHER MEETING WAS HELD IN KEUHN'S
OFFICE. THIS MEETING WAS ATTENDED BY PRINCE, VARIOUS SUPERVISORY
PERSONNEL AND SHOP STEWARD YAGER WHO AGAIN WAS INVITED TO ATTEND THE
MEETING BY EDDS. DURING THIS MEETING PRINCE WAS PRESENTED WITH A TYPED
STATEMENT RELATIVE TO HIS VERSION OF THE ALTERCATION OF SEPTEMBER 30,
WHICH HE HAD RELATED AT THE PREVIOUS MEETING. PRINCE READ THE STATEMENT
AND UPON REQUEST OF MANAGEMENT, SIGNED THE DOCUMENT.
SHORTLY THEREAFTER PRINCE MET WITH MR. GUNTHER, HEAD OF THE
ACTIVITY'S MANUFACTURING DIVISION. GUNTHER ASKED PRINCE ABOUT THE
ALTERCATION AND INFORMED PRINCE THAT HE WOULD RECEIVE A LETTER OF
REPRIMAND. GUNTHER ALSO EXPLAINED THAT PRINCE COULD APPEAL THE LETTER
OF REPRIMAND EITHER THROUGH THE NAVY'S ADMINISTRATIVE GRIEVANCE
PROCEDURE OR THOUGH THE NEGOTIATED GRIEVANCE PROCEDURE.
ON OR ABOUT NOVEMBER 16, 1971, PRINCE AGAIN MET IN KEUHN'S OFFICE
WITH VARIOUS SUPERVISORS AND SHOP STEWARD YAGER. AT THIS MEETING PRINCE
WAS GIVEN A LETTER OF REPRIMAND WITH REGARD TO HIS SEPTEMBER 30
ALTERCATION WITH EMPLOYEE KNOX. YAGER DID NOT SEE NOR WAS HE GIVEN A
COPY OF THE LETTER.
SHORTLY AFTER THE MEETING ADJOURNED PRINCE INFORMED YAGER THAT HE WAS
GOING TO APPEAL THE LETTER OF REPRIMAND BUT THAT HE DID NOT WANT THE
UNION "IN ON IT." THEREAFTER YAGER "JUST DROPPED IT." SOMETIME
THEREAFTER IT CAME TO YAGER'S ATTENTION THROUGH HEARSAY THAT PRINCE HAD
FILED AN APPEAL. SUBSEQUENTLY PRINCE WAS APPROACHED BY JOE CECIL, A
UNION OFFICIAL WHO ASKED PRINCE WHY HE DIDN'T HAVE THE UNION REPRESENT
HIM ON HIS APPEAL. PRINCE REPLIED THAT HE COULD HANDLE IT HIMSELF.
PRINCE ELECTED TO PURSUE HIS APPEAL OF THE LETTER OF REPRIMAND
THROUGH THE ADMINISTRATIVE GRIEVANCE PROCEDURE AS OPPOSED TO THE
NEGOTIATED GRIEVANCE PROCEDURE. AN APPEAL THROUGH THE ADMINISTRATIVE
GRIEVANCE PROCEDURE IS INITIATED BY ORALLY INFORMING THE INDUSTRIAL
RELATIONS OFFICE OF THE GRIEVANT'S INTENT TO APPEAL. THE GRIEVANCE THEN
ENTERS THE FORMAL STAGE UPON FILING A WRITTEN APPEAL. WITHOUT
NOTIFICIATION TO THE UNION, PRINCE FILED A WRITTEN APPEAL OF THE LETTER
OF REPRIMAND SOMETIME IN DECEMBER 1971.
AFTER RECEIVING A COPY OF PRINCE'S WRITTEN APPEAL, THE ACTIVITY
REQUESTED THE DEPARTMENT OF THE NAVY, REGIONAL OFFICE OF CIVILIAN
MANPOWER MANAGEMENT, NORFOLK, VIRGINIA TO ASSIGN A GRIEVANCE EXAMINER TO
CONDUCT AN INQUIRY INTO THE GRIEVANCE. GRIEVANCE EXAMINER L. B. SHAW
WAS SELECTED AND ON JANUARY 27, 1972, SHAW CONDUCTED HIS INQUIRY BY
PERSONALLY INTERVIEWING PRINCE, KNOX, AND CARROL SCHRENGER, A MANAGEMENT
OFFICIAL. /18/
ON JANUARY 27, 1972, WHEN GRIEVANCE EXAMINER SHAW CONDUCTED HIS
INTERVIEWS HE NOTIFIED THE ACTIVITY AS TO WHAT WITNESSES HE WISHED TO
SEE AND THE ACTIVITY CALLED THE INDIVIDUALS TO A CONFERENCE ROOM
INDIVIDUALLY. PRINCE'S MEETING WITH SHAW LASTED APPROXIMATELY ONE HOUR.
AT THE BEGINNING OF THE MEETING, SHAW TURNED OVER TO PRINCE A FILE
WHICH CONTAINED VARIOUS DOCUMENTS CONCERNING THE CASE AND ASKED PRINCE
TO NOTE ANY MATTERS WITH WHICH HE DISAGREED. PRINCE REVIEWED THE FILE
FOR ABOUT TWENTY TO TWENTY-FIVE MINUTES AFTER WHICH TIME GRIEVANCE
EXAMINER SHAW RETURNED. /19/ THEREAFTER PRINCE AND SHAW DISCUSSED THE
DOCUMENTS WHICH PRINCE QUESTIONED.
DURING THE CONVERSATION, PRINCE EXPRESSED DISAGREEMENT WITH THE
ACTIVITY'S CONCLUSION THAT HE ENGAGED IN HORSEPLAY WHICH WAS
"DANGEROUS". SHAW INFORMED PRINCE THAT IF HIS APPEAL HAD BEEN TO REMOVE
CERTAIN ITEMS FROM HIS LETTER OF REPRIMAND RATHER THAN REMOVE THE ENTIRE
LETTER, HE MAY HAVE BEEN IN A BETTER POSITION IN HIS APPEAL. ON THE
FOLLOWING DAY, GRIEVANCE ACTIVITY'S COMMANDING OFFICER THAT PRINCE'S
APPEAL BE DENIED.
THE RECOMMENDATION WAS ACCEPTED AND THE LETTER OF REPRIMAND REMAINED
IN EFFECT.
AN ARTICLE CONCERNING THE REPRIMAND AND THE DISPOSITION OF PRINCE'S
APPEAL WAS PUBLISHED IN AN ACTIVITY PUBLICATION ENTITLED, "MANAGEMENT
INFORMATION SHEET", DATED FEBRUARY 7, 1972. /20/ ALTHOUGH THE DOCUMENT
IS PUBLISHED TO PROVIDE INFORMATION TO SUPERVISION, JAMES W. SEIDL, THE
UNION'S CHIEF STEWARD, OBTAINING A COPY OF IT SOMETIME AFTER ITS
DISTRIBUTION. PRIOR TO READING THE ARTICLE, SEIDL HAD NOT BEEN AWARE OF
THE PRINCE MATTER. AFTER HAVING BEEN ADVISED OF THE ARTICLE SEIDL AND
AREA STEWARD, E. H. ABBOTT, MET AROUND FEBRUARY 23, 1972, WITH JAMES W.
LECHLEITER, LABOR RELATIONS SPECIALIST WITH THE ACTIVITY. SEIDL
INQUIRED OF LECHLEITER WHY THE UNION WAS NOT GIVEN AN OPPORTUNITY TO BE
PRESENT DURING SHAW'S INQUIRY. LECHLEITER REPLIED THAT HE HAD INFORMED
GRIEVANCE EXAMINER SHAW WHEN HE WAS PRESENT AT THE ACTIVITY THAT LOCAL
LODGE 830 WAS THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE AND
GAVE SHAW A COPY OF THE AGREEMENT, AND FROM THAT POINT ON "IT WAS UP TO
HIM." SEIDL TESTIFIED THAT AT THE MEETING LECHLEITER INDICATED THE
FEDERAL PERSONNEL MANUAL REGULATIONS (FPM CHAPTER 711, SUBCHAPTER 3-11)
GOVERNED THE PROCESSING OF AN APPEAL UNDER THE ADMINISTRATIVE GRIEVANCE
PROCEDURE. LECHLEITER TESTIFIED THAT HE INFORMED SEIDL THAT THE REASON
THE UNION WAS NOT NOTIFIED OF THE SHAW INQUIRY WAS BECAUSE A "HEARING"
WAS NOT CONDUCTED, AND BROUGHT TO SEIDL'S ATTENTION ARTICLE 14 SECTION 3
OF THE NEGOTIATED AGREEMENT. THAT PROVISION INDICATES THAT THE UNION
HAS THE RIGHT TO HAVE AN OBSERVER PRESENT AT A "HEARING" ON AN APPEAL OF
A DISCIPLINARY ACTION EVEN WHERE IT IS NOT SELECTED AS THE EMPLOYEE'S
REPRESENTATIVE. /21/
I FIND THAT AT NO TIME PRIOR TO GRIEVANCE EXAMINER SHAW'S INQUIRY OF
JANUARY 27, 1972, DID THE ACTIVITY NOTIFY THE UNION OF PRINCE'S APPEAL
OR SHAW'S INQUIRY INTO THE MATTER. I FURTHER FIND THAT AT NO TIME PRIOR
TO JANUARY 27, 1972, DID PRINCE EVER SEEK THE ASSISTANCE OF THE UNION TO
REPRESENT HIM IN HIS APPEAL. TO THE CONTRARY, PRINCE HAD CLEARLY MADE
KNOWN TO UNION REPRESENTATIVES THAT HE DID NOT SEEK THEIR AID, BUT
RATHER WISHED TO REPRESENT HIMSELF IN APPEALING HIS LETTER OF REPRIMAND
THROUGH THE ADMINISTRATIVE GRIEVANCE PROCEDURE.
ON MARCH 7, 1972, THE UNION FILED AN UNFAIR LABOR PRACTICE CHARGE
WITH THE ACTIVITY REGARDING THIS MATTER. BY LETTER DATED JULY 31, 1972,
THE ACTIVITY GAVE ITS FINAL ANSWER TO THE UNION'S CHARGE. IN THIS
CORRESPONDENCE THE ACTIVITY, INTER ALIA, TOOK THE POSITION THAT NO
"HEARING" UNDER ARTICLE 14 OF THE CONTRACT WAS HELD WHICH WOULD GIVE THE
UNION A RIGHT TO BE PRESENT. THE ACTIVITY CLAIMED THAT AN
"INVESTIGATION" WAS CONDUCTED BY THE GRIEVANCE EXAMINER AND THE
DETERMINATION TO PROCEED BY WAY OF INVESTIGATION WAS SOLELY THAT OF THE
GRIEVANCE EXAMINER "BY NAVAL DEPARTMENT REGULATIONS."
(6) CONTENTION OF THE PARTIES
THE UNION ALLEGES THAT THE ACTIVITY WAS OBLIGED UNDER SECTION 10(E)
OF THE ORDER AND UNDER ARTICLE 14 SECTION 3 OF THE COLLECTIVE BARGAINING
AGREEMENT TO GIVE THE UNION AN OPPORTUNITY TO BE PRESENT DURING
GRIEVANCE EXAMINER SHAW'S INQUIRY. THE ACTIVITY CONTENDS THAT SHAW'S
INQUIRY WAS NOT A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E)
OF THE ORDER NOR A "HEARING" WITHIN THE MEANING OF THE CONTRACT; THAT
GRIEVANCE EXAMINER SHAW WAS NOT A REPRESENTATIVE OF THE ACTIVITY
(MANAGEMENT) DURING THE INQUIRY; AND THAT IN ANY EVENT THE UNION HAD
SUFFICIENT OPPORTUNITY TO BE REPRESENTED AT THE INQUIRY BUT FAILED TO
MAKE A TIMELY REQUEST OR MAKE KNOWN ITS INTEREST IN THE MATTER.
(7) DISCUSSION AND CONCLUSIONS - CASE NO. 41-3128(CA)
SECTION 10(E) OF THE ORDER PROVIDES, IN RELEVANT PART THAT A LABOR
ORGANIZATION WHICH HAD BEEN ACCORDED EXCLUSIVE RECOGNITION, " . . .
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." FROM MY
EXAMINATION OF THE FACTS AND CIRCUMSTANCES OF THIS CASE AS EVALUATED
WITHIN THE CONTEXT OF THE TERMS OF SECTION 10(E) OF THE ORDER, I FIND
THAT RESPONDENT DEPRIVED COMPLAINANT OF A SPECIFIC RIGHT ACCORDED BY THE
ORDER AND THEREBY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
THUS, IN MY VIEW, GRIEVANCE EXAMINER SHAW'S INQUIRY ON JANUARY 27,
1972, WAS A FORMAL DISCUSSION WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER. THE FPM REGULATIONS /22/ REVEAL THAT THE INQUIRY WAS PART OF THE
DESIGNATED "FORMAL PROCEDURES" IN PROCESSING GRIEVANCES UNDER THE
ADMINISTRATIVE GRIEVANCE PROCEDURE. MOREOVER, THE FACT THAT THE INQUIRY
REPRESENTED PRINCE'S FINAL OPPORTUNITY TO PRESENT HIS CASE PRIOR TO THE
COMMANDING OFFICER'S DECISION ATTESTS TO ITS "FORMALITY." /23/
IN ADDITION, I FIND THAT THE SUBJECT MATTER OF THE INQUIRY CONCERNED
A GRIEVANCE, PERSONNEL POLICY OR PRACTICE AFFECTING WORKING CONDITIONS
OF EMPLOYEES IN THE UNIT WITHIN THE MEANING OF SECTION 10(E) OF THE
ORDER. A DETERMINATION THAT AN EMPLOYEE'S CONDUCT VIS A VIS ANOTHER
EMPLOYEE WARRANTS A REPRIMAND AFFECTS THE WORKING CONDITIONS OF ALL UNIT
EMPLOYEES SINCE THE ACTIVITY'S STANDARDS OF CONDUCT, AND THE
INTERPRETATION THEREOF, ARE PRESUMABLY APPLICABLE TO ALL. THE
CIRCUMSTANCES WHEREIN THE LETTER OF REPRIMAND WAS GIVEN MAY WELL HAVE
PRECEDENTIAL VALUE IN OTHER CASES WHICH WOULD BE OF INTEREST AND CONCERN
TO THE UNION. FURTHER, AN UNDERSTANDING OF THE FACTS AS DISCLOSED BY
THE INQUIRY AND THE EVALUATION THEREOF WOULD ALSO BE OF SUBSTANTIAL
IMPORTANCE TO THE UNION IN CARRYING OUT ITS RESPONSIBILITIES AS THE
REPRESENTATIVE OF ALL UNIT EMPLOYEES.
I ALSO FIND THAT IN HIS DISCUSSIONS WITH EMPLOYEES, GRIEVANCE
EXAMINER SHAW WAS A DESIGNATED REPRESENTATIVE OF MANAGEMENT OR AN AGENT
OF MANAGEMENT FOR THE PURPOSES OF SECTION 10(E) OF THE ORDER. WHILE THE
EXAMINER DID NOT OCCUPY A POSITION UNDER THE JURISDICTION UNDER THE
COMMANDING OFFICER, THE DEPARTMENT OF THE NAVY IS UNILATERALLY
RESPONSIBLE FOR BOTH THE SELECTION AND TRAINING OF ITS GRIEVANCE
EXAMINERS /24/ AND ULTIMATE CONTROL OVER THE DISPOSITION OF THE APPEAL
RESIDES WITHIN THE DEPARTMENT OF THE NAVY. THUS, THE COMMANDING OFFICER
MAY REJECT THE GRIEVANCE EXAMINER'S RECOMMENDATION AS TO THE DISPOSITION
OF THE MATTER AND APPEAL TO THE SECRETARY OF THE NAVY WHOSE DECISION
WOULD BE FINAL. MOREOVER, REGULATION CMMI 771.101 PROVIDES THAT WHEN
PERFORMING THEIR DUTIES, " . . . THE DEPARTMENT OF THE NAVY GRIEVANCE
AND APPEALS EXAMINERS ARE ACTING AS REPRESENTATIVES OF THE SECRETARY . .
. "
I REJECT RESPONDENT'S ARGUMENT THAT IN THE CIRCUMSTANCES OF THIS
CASE:
"THE UNION HAD SUFFICIENT NOTIFICATION TO BE MADE AWARE OF THE
GRIEVANCE
PROCEEDINGS; INFORMATION THAT SHOULD HAVE PROMPTED A REASONABLY
PRUDENT UNION, EXERCISING A
MODICUM OF EFFORT, TO FULLY EXERCISE THEIR RIGHTS HAD THEY SO
DESIRED."
WHILE THE UNION WAS AWARE THAT PRINCE INTENDED TO APPEAL HIS LETTER
OF REPRIMAND, AND THROUGH HEARSAY, MIGHT HAVE BEEN ALERTED THAT PRINCE
DID IN FACT FILE AN APPEAL, THIS DOES NOT RELIEVE THE ACTIVITY FROM ITS
OBLIGATION UNDER SECTION 10(E) OF THE ORDER TO PROVIDE THE UNION WITH
"THE OPPORTUNITY TO BE REPRESENTED AT FORMAL DISCUSSIONS" CONCERNING
PRINCE'S GRIEVANCE. AT NO TIME DID THE UNION INDICATE TO THE ACTIVITY
THAT IT WAS NOT INTERESTED IN BEING PRESENT AT SUCH DISCUSSIONS, THE
TIMING OF WHICH WAS A MATTER PARTICULARLY WITHIN THE KNOWLEDGE OF THE
ACTIVITY. IN ESSENCE, RESPONDENT CONTENDS THAT THROUGH INACTION THE
UNION WAIVED ANY RIGHT IT MAY HAVE HAD TO BE REPRESENTED AT THE SHAW
INQUIRY WHICH I HAVE FOUND TO BE A "DISCUSSION" UNDER SECTION 10(E).
THE ASSISTANT SECRETARY HAS PREVIOUSLY HELD THAT " . . . IN ORDER TO
ESTABLISH A WAIVER OF A RIGHT GRANTED UNDER THE EXECUTIVE ORDER, SUCH
WAIVER MUST BE CLEAR AND UNMISTAKABLE." /25/ NO SUCH "CLEAR AND
UNMISTAKABLE" WAIVER, OR INDEED EVEN AN IMPLIED WAIVER, HAS BEEN
ESTABLISHED ON THE FACTS IN THIS CASE.
RESPONDENT ARGUES THAT ONLY IF THE GRIEVANCE EXAMINER HAD CHOSEN TO
CONDUCT A "HEARING" ON PRINCE'S APPEAL UNDER THE ADMINISTRATIVE
GRIEVANCE PROCEDURE WOULD THE UNION HAVE A RIGHT TO HAVE AN OBSERVER
PRESENT. IT RELIES UPON THE EXPRESS LANGUAGE OF ARTICLE 14 SECTION 3 OF
THE NEGOTIATED AGREEMENT WHICH STATES:
"WHEN A NOTICE OF DECISION TO EFFECT A DISCIPLINARY OR ADVERSE ACTION
IS ISSUED TO THE
EMPLOYEE, AND THE EMPLOYEE APPEALS THE ACTION, BUT DOES NOT SELECT A
UNION REPRESENTATIVE, THE
UNION SHALL HAVE THE RIGHT TO HAVE AN OBSERVER PRESENT AT THE HEARING
AND TO MAKE THE VIEWS OF
THE UNION KNOWN UNDER THE CONDITIONS SET FORTH IN APPLICABLE
REGULATIONS."
RESPONDENT ARGUES THAT SINCE NO "HEARING" WAS CONDUCTED BY THE
GRIEVANCE EXAMINER, THE UNION HAS NO RIGHT TO BE PRESENT DURING HIS
INQUIRY. THE UNION INTERPRETS THE WORK "HEARING" IN ARTICLE 14 SO AS TO
INCLUDE THE PROCEDURE GRIEVANCE EXAMINER SHAW CHOSE TO FOLLOW IN THIS
CASE. IN MY VIEW A RESOLUTION OF THE MEANING OF THE WORK "HEARING" IN
ARTICLE 14 SECTION 3 OF THE AGREEMENT IS NOT NECESSARY TO RESOLVE THE
ISSUES HEREIN. THE UNION'S RIGHT TO BE AFFORDED THE OPPORTUNITY TO BE
REPRESENTED IN THIS MATTER IS BASED UPON THE EXPRESS PROVISIONS OF THE
EXECUTIVE ORDER AND NOT MERELY UPON A CONTRACTUAL RIGHT. MOREOVER, FROM
MY READING OF ARTICLE 14 OF THE AGREEMENT I DO NOT CONCLUDE THAT BY THE
TERMS OF THAT PROVISION THE UNION'S SECTION 10(E) RIGHTS WERE IN ANY WAY
WAIVED OR DIMINISHED. WHILE ARTICLE 14 SECTION 3 PROVIDES THE UNION
WITH A CONTRACTUAL RIGHT TO BE PRESENT AT A "HEARING" IN A DISCIPLINARY
OR ADVERSE ACTION APPEALS SITUATION, NOWHERE IN THAT PROVISION DOES IT
EXPRESSLY STATE OR INDICATE THAT THE UNION IS FOREGOING OR WAIVING ALL
RIGHTS RELATIVE TO "FORMAL DISCUSSIONS" UNDER SECTION 10(E) OF THE
ORDER. /26/ WHILE THE UNION THUS MAY HAVE BOTH A RIGHT UNDER THE ORDER,
AND UNDER THE CONTRACT TO BE PRESENT AT A "HEARING" ON PRINCE'S APPEAL,
THEY NEVERTHELESS HAVE RETAINED THEIR FULL RIGHTS UNDER SECTION 10(E) OF
THE ORDER TO BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT ANY
PROCEEDING WHICH COULD REASONABLY BE INTERPRETED TO CONSTITUTE A "FORMAL
DISCUSSION." ACCORDINGLY, I FIND THAT ARTICLE 14 SECTION 3 OF THE
NEGOTIATED AGREEMENT DOES NOT EXCUSE THE ACTIVITY FROM ITS FAILURE TO
FOLLOW THE EXPRESS MANDATE OF SECTION 10(E) OF THE ORDER.
IN SUM I FIND AND CONCLUDE THAT UNDER ALL THE CIRCUMSTANCES
RESPONDENT'S FAILURE TO GIVE THE UNION THE OPPORTUNITY TO BE REPRESENTED
AT GRIEVANCE EXAMINER SHAW'S DISCUSSIONS WITH EMPLOYEES RELATIVE TO HIS
INQUIRY INTO PRINCE'S APPEAL OF HIS LETTER OF REPRIMAND CONSTITUTES A
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER. /27/
(8) REMEDY - CASE NO. 41-3128(CA)
SINCE THE UNION WAS NOT GIVEN AN OPPORTUNITY TO BE REPRESENTED AT THE
GRIEVANCE EXAMINER'S INQUIRY WITH EMPLOYEES RELATIVE TO PRINCE'S APPEAL
OF HIS LETTER OF REPRIMAND, IT IS IMPOSSIBLE TO ASSESS WHAT IMPACT, IF
ANY, THE UNION'S PRESENCE AT THE INQUIRY MIGHT HAVE HAD ON THE
EXAMINER'S RECOMMENDATION. NOR CAN IT BE ASCERTAINED TO WHAT USE THE
UNION MIGHT HAVE PUT WHATEVER INFORMATION IT RECEIVED BY VIRTUE OF ITS
PRESENCE AT THE INQUIRY, IF IT CHOSE TO ATTEND. THE ONLY WAY TO BE
ASSURED THAT THE UNION'S RIGHTS ARE RECOGNIZED SO THAT IT MAY FULFILL
WHAT IT PERCEIVES TO BE ITS RESPONSIBILITIES UNDER THE ORDER IS TO
RESTORE THE SITUATION TO THE STATUS QUO ANTE AND PROVIDE THE UNION WITH
THE OPPORTUNITY TO BE REPRESENTED WHEN THE INQUIRY IS CONDUCTED.
ACCORDINGLY, I SHALL RECOMMEND THAT UPON REQUEST OF THE UNION, THE
ACTIVITY SHALL CONSIDER GRIEVANCE EXAMINER SHAW'S REPORT AND
RECOMMENDATION NULL AND VOID, RESCIND THE COMMANDING OFFICER'S APPROVAL
AND ADOPTION THEREOF, AND PROCEED WITH PROCESSING 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. ONLY THEN WILL THE UNION BE ACCORDED ITS ENTITLEMENT UNDER
SECTION 10(E) OF THE ORDER " . . . TO ACT FOR . . . ALL EMPLOYEES IN THE
UNIT," A RIGHT DENIED IT DUE TO RESPONDENT'S UNFAIR LABOR PRACTICE
CONDUCT FOUND HEREIN.
(9) RECOMMENDATION
HAVING FOUND THAT RESPONDENT IN CASE NO. 41-3128(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 DESIGNED TO EFFECTUATE THE
POLICIES OF THE ORDER.
(10) THE ALLEGED UNFAIR LABOR PRACTICE CONDUCT - CASE NO.
41-3129(CA)
BY LETTER DATED APRIL 20, 1972, THE ACTIVITY INSTITUTED ADVERSE
ACTION PROCEEDINGS AGAINST OVA F. CAMPBELL, AN EMPLOYEE AND A MEMBER OF
THE COLLECTIVE BARGAINING UNIT, FOR THE PURPOSE OF REMOVING HIM FROM
FEDERAL EMPLOYMENT. THE "NOTICE OF PROPOSED REMOVAL" RECEIVED BY
CAMPBELL ON FRIDAY APRIL 21, PROVIDED, INTER ALIA:
"YOU MAY REPLY TO THIS NOTICE PERSONALLY OR IN WRITING, OR BOTH, TO
THE UNDERSIGNED AND YOU
MAY SUBMIT AFFIDAVITS AND/OR WRITTEN MATERIAL IN SUPPORT OF YOUR
REPLY. YOU WILL BE ALLOWED
TEN (10) CALENDAR DAYS FROM RECEIPT OF THIS NOTICE TO REPLY BUT NO
LAGER THAN 3 MAY
1972. CONSIDERATION WILL BE GIVEN TO EXTENDING THIS PERIOD IF YOU
SUBMIT A REQUEST STATING
YOUR REASONS FOR NEEDING MORE TIME. IF YOU REPLY PERSONALLY, YOU MAY
BE ACCOMPANIED BY ANY
ONE PERSON OF YOUR CHOICE WHO IS WILLING TO REPRESENT YOU . . . "
ON MONDAY, APRIL 24, 1972, CHIEF STEWARD, JAMES W. SEIDL RECEIVED
WORD FROM THE AREA STEWARD THAT CAMPBELL HAD RECEIVED A PROPOSED NOTICE
OF REMOVAL. ACCORDING TO SEIDL HE THEREUPON WENT TO CAMPBELL'S
SUPERVISOR, GEORGE SLOAN /28/ AND INFORMED HIM THAT HE WISHED TO DISCUSS
THE ADVERSE ACTION MATTER WITH CAMPBELL. SEIDL READ THE DOCUMENT IN
SLOAN'S PRESENCE AND TOLD SLOAN THAT THEY WISHED TO HAVE CERTAIN
DOCUMENTS MADE AVAILABLE TO THEM AND ALSO MAKE ARRANGEMENTS TO USE
OFFICIAL TIME. /29/ SLOAN INFORMED SEIDL THAT HE COULD MAKE
ARRANGEMENTS FOR THE USE OF OFFICIAL TIME FOR SEIDL AND CAMPBELL BUT
THAT THE REQUEST FOR DOCUMENTS WOULD HAVE TO BE TAKEN UP WITH B. W.
CLAYTON, THE ACTIVITY'S INDUSTRIAL DIRECTOR. SLOAN LEFT AT THIS
PARTICULAR POINT AND CAMPBELL AND SEIDL CONTINUED THEIR DISCUSSION AT
WHICH TIME SEIDL HAD CAMPBELL EXPLAIN SOME OF THE MATTERS THAT WERE
CONTAINED IN THE NOTICE OF PROPOSED REMOVAL.
ON WEDNESDAY, APRIL 26, 1972, SEIDL AGAIN WENT TO SEE CAMPBELL. ON
THE PRIOR DAY, CAMPBELL HAD NOT REPORTED TO WORK AND SEIDL TESTIFIED
THAT HE WAS INTERESTED IN FINDING OUT WHY CAMPBELL WAS NOT AT WORK.
HOWEVER, SEIDL DID NOT MENTION THIS TO SLOAN BUT MERELY INFORMED SLOAN
THAT HE WANTED TO DISCUSS WITH CAMPBELL THE PROPOSED NOTICE OF REMOVAL.
AFTER TALKING TO CAMPBELL, SEIDL TOLD SLOAN THAT CAMPBELL AND HE WOULD
LIKE TO USE THE TWO HOURS OF OFFICIAL TIME ON EITHER THE FOLLOWING
THURSDAY OR FRIDAY, (APRIL 27 OR 28), DEPENDING UPON THE AVAILABILITY OF
MR. CAMPBELL. SLOAN REPLIED THAT THEY COULD HAVE OFFICIAL TIME ANY TIME
THAT THEY WERE READY TO USE IT.
ON THE FOLLOWING THURSDAY AND FRIDAY, SEIDL WAS ILL AND DID NOT
REPORT TO WORK. ON THE FOLLOWING MONDAY, (MAY 1) SEIDL LEARNED THAT
CAMPBELL HAD BEEN HOSPITALIZED ON THE PREVIOUS SATURDAY. HE APPARENTLY
REMAINED IN THE HOSPITAL FOR SOME TIME THEREAFTER. SEIDL HAD NO FURTHER
CONVERSATION WITH CAMPBELL UNTIL AFTER MAY 3, 1972.
ON MAY 3, 1972, SEIDL AND AREA STEWARD E. H. ABBOT, MET WITH
INDUSTRIAL DIRECTOR, B. W. CLAYTON AT APPROXIMATELY 2:00 P.M. SEIDL
PRESENTED CLAYTON WITH A LETTER DATED MAY 2, 1972, WHICH REQUESTED AN
EXTENSION OF TIME TO REPLY TO THE CHARGES AGAINST CAMPBELL. /30/ THE
LETTER STATED:
"THIS LETTER IS A REQUEST FOR AN EXTENSION IN REPLYING TO THE CHARGES
LEVELED AGAINST
MR. OVA CAMPBELL.
"AS MR. CAMPBELL'S DESIGNATED REPRESENTATIVE, I BELIEVE THIS
EXTENSION IS NECESSARY SINCE
MR. CAMPBELL HAS BEEN ADMITTED TO THE HOSPITAL FOR TREATMENT FOR HIS
ILLNESS. AS A RESULT OF
HIS ILLNESS, I HAVE BEEN UNABLE TO COMPLETE THE PREPARATION OF HIS
CASE TO GUARANTEE THAT HE
IS GIVEN THE JUST REPRESENTATION THAT HE IS ENTITLED TO.
"THIS NOTICE IS INTENDED TO NOTIFY YOU THAT (WE) INTEND TO REPLY TO
THIS NOTICE OF REMOVAL
IN PERSON AND IN WRITING AS SOON AS POSSIBLE; WHEN MR. CAMPBELL IS
RELEASED FROM THE HOSPITAL
AND ABLE TO RETURN TO FULL DUTY STATUS; AND WE ARE ABLE TO REVIEW
THE MATERIAL USED TO
DOCUMENT YOUR CASE AGAINST THIS EMPLOYEE."
THE LETTER WAS SIGNED "JAMES W. SEIDL, CHIEF STEWARD, LOCAL LODGE
830, IAM-AW (FOR) OVA CAMPBELL." ON THE BOTTOM OF THE LETTER IS THE
NOTATION "RECEIVED IND. DIR. OFFICE 3 MAY 1972 1400" AND SIGNED "JEANNE
HARPER".
ACCORDING TO SEIDL, CLAYTON TOLD HIM AT THE MEETING THAT CAMPBELL HAD
NOT DESIGNATED A REPRESENTATIVE IN WRITING AND THEREFORE HE DID NOT
RECOGNIZE SEIDL AS CAMPBELL'S DESIGNATED REPRESENTATIVE. SEIDL INFORMED
CLAYTON THAT HE HAD A RESPONSIBILITY TO REPRESENT THE INTEREST OF THIS
EMPLOYEE AND THAT HE WAS NOT THERE TO MAKE ANY REPRESENTATION ON THE
PART OF THE INDIVIDUAL BUT HE WAS ONLY THERE TO GAIN AN EXTENSION OF
TIME TO REPLY TO THE CHARGES SINCE CAMPBELL WAS HOSPITALIZED. CLAYTON
INFORMED SEIDL THAT CAMPBELL WOULD DO HIMSELF WELL IF HE WOULD GET
HIMSELF AN OUTSIDE REPRESENTATIVE SINCE HE WAS IN "BAD TROUBLE" AND
NEEDED "PROFESSIONAL HELP". SEIDL RESPONDED THAT THE UNION FELT THAT IT
WAS THE REPRESENTATIVE OF CAMPBELL BUT CLAYTON INSISTED THAT CAMPBELL
HAD NOT DESIGNATED A REPRESENTATIVE.
ABBOTT TESTIFIED THAT AFTER SEIDL GAVE CLAYTON THE REQUEST FOR AN
EXTENSION OF TIME TO REPLY TO THE CHARGES AGAINST CAMPBELL, CLAYTON TOLD
SEIDL THAT THE UNION HAD NO BUSINESS REPRESENTING CAMPBELL AND CAMPBELL
HAD NOT PERSONALLY DESIGNATED ANY ONE IN WRITING TO REPRESENT HIM. THE
CONVERSATION BETWEEN SEIDL AND CLAYTON LASTED ONLY A FEW MINUTES AND WAS
HEATED. ABBOTT ASKED CLAYTON IF HE WOULD PUT HIS RESPONSE IN WRITING
AND CLAYTON INDICATED THAT HE WOULD. /31/ SEIDL INDICATED THAT HE WAS
THE CHIEF STEWARD AND AS SUCH HAD A RIGHT TO REPRESENT CAMPBELL. WHILE
ABBOTT COULD NOT RECALL THE EXACT WORDS USED DURING THIS CONVERSATION
THE "GIST" OF THE CONVERSATION AS RECALLED BY ABBOTT WAS THAT IF
CAMPBELL WOULD DESIGNATE SEIDL AS A PERSONAL REPRESENTATIVE IN WRITING
HE COULD REPRESENT CAMPBELL, BUT SEIDL COULD NOT "DO IT AS A UNION
REPRESENTATIVE." /32/
SUBSEQUENTLY, ON MAY 24, 1972, THE ACTIVITY NOTIFIED CAMPBELL OF ITS
DECISION TO REMOVE HIM FROM EMPLOYMENT. CAMPBELL'S REMOVAL WAS
EFFECTIVE JUNE 20, 1972. THEREAFTER UPON HIS REQUEST A HEARING BEFORE A
REPRESENTATIVE OF THE CIVIL SERVICE COMMISSION WAS CONDUCTED ON
SEPTEMBER 29, 1972. ONE OF THE ISSUES LITIGATED AT THE COMMISSION
HEARING WAS WHETHER CAMPBELL HAD PREVIOUSLY DESIGNATED ANYONE TO
REPRESENT HIM. /33/ APPARENTLY THE UNION TOOK THE POSITION THAT; (1)
SEIDL WAS SPECIFICALLY DESIGNATED BY CAMPBELL TO REPRESENT HIM IN THE
ACTION AND, (2) UNDER THE ORDER, THE UNION, BY VIRTUE OF ITS STATUS AS
COLLECTIVE BARGAINING REPRESENTATIVE OF THE EMPLOYEES HAD THE RIGHT TO
REPRESENT CAMPBELL EVEN IF IT WAS NOT SPECIFICALLY DESIGNATED BY
CAMPBELL TO REPRESENT HIM. THE ACTIVITY TOOK THE POSITION THAT THE
UNION'S RIGHT TO REPRESENT AN EMPLOYEE UNDER THE ORDER SHOULD NOT ENTER
INTO THE HEARING BUT RATHER SHOULD BE RESOLVED IN ACCORD WITH EXECUTIVE
ORDER 11491. /34/ SPECIFIC DESIGNATION WAS DENIED.
AT THE HEARING BEFORE THE COMMISSION'S HEARING EXAMINER, SEIDL ARGUED
THAT CAMPBELL HAD PREVIOUSLY DESIGNATED HIM AS HIS REPRESENTATIVE IN A
PRIOR PROPOSED ADVERSE ACTION PROCEEDING IN JANUARY OF 1972, AND THAT
AUTHORIZATION CARRIED THROUGH TO THE LATEST ACTION AGAINST CAMPBELL.
SEIDL APPARENTLY ALSO ARGUED THAT HIS CONTACTS WITH CAMPBELL ON THE JOB,
WITHIN THE KNOWLEDGE OF SUPERVISOR SLOAN, CONSTITUTED CONSTRUCTIVE
NOTICE TO THE ACTIVITY THAT SEIDL WAS INDEED CAMPBELL'S DESIGNATED
REPRESENTATIVE.
ON OR ABOUT OCTOBER 26, 1972, THE CIVIL SERVICE COMMISSION, ATLANTA
REGION, ISSUED ITS DECISION ON MR. CAMPBELL'S APPEAL /35/ SUSTAINING THE
ACTIVITY'S REMOVAL OF CAMPBELL. WITH REGARD TO THE QUESTION OF WHETHER
CAMPBELL DESIGNATED A REPRESENTATIVE TO ACT FOR HIM, THE DECISION STATES
IN RELEVANT PART:
"IT IS CONTENDED THAT THE REMOVAL ACTION IS PROCEDURALLY DEFECTIVE
BECAUSE THE APPELLANT
WAS DENIED AN EXTENSION OF TIME IN WHICH TO ANSWER. IT IS ALSO
CONTENDED THAT THE APPELLANT
WAS DENIED THE RIGHT TO BE REPRESENTED DURING THE PERIOD ALLOWED FOR
ANSWERING.
"IN SUPPORT OF THE CONTENTIONS, IT IS ALLEGED THAT MR. SEIDL WAS A
PROPERLY DESIGNATED
REPRESENTATIVE, ON THE BASIS THAT HE HAD REPRESENTED THE APPELLANT IN
A PREVIOUS DISCIPLINARY
PROCEEDING; THAT THE APPELLANT WAS MENTALLY INCOMPETENT DURING THE
TIME ALLOWED FOR ANSWERING,
AND THAT BECAUSE OF THE CIRCUMSTANCES THE APPELLANT DID NOT HAVE
SUFFICIENT TIME IN WHICH TO
PERFECT AN ARRANGEMENT TO HAVE MR. SEIDL REPRESENT HIM.
"THERE IS NO EVIDENCE THAT THE PERSON DESIGNATED TO RECEIVE THE
APPELLANT'S ANSWER RECEIVED
ANY COMMUNICATION FROM THE APPELLANT, EITHER ORALLY OR IN WRITING,
DURING THE PERIOD ALLOWED
FOR ANSWERING.
THE DECISION THEN RECITES SEIDL'S REQUEST FOR AN EXTENSION OF TIME TO
REPLY TO THE CHARGES AGAINST CAMPBELL AND CONTINUES:
"UNDER PART 752 OF THE CIVIL SERVICE REGULATIONS, AN EMPLOYEE HAS NO
ENTITLEMENT TO HAVE A
REPRESENTATIVE APPEAR WITH HIM OR ANSWER FOR HIM OR ADVISE HIM AS HE
ANSWERS. HOWEVER, THE
RECORD SHOWS THAT THE AGENCY EXTENDED THAT RIGHT TO THE APPELLANT, IN
ACCORDANCE WITH ITS
AGREEMENT WITH AN EMPLOYEE UNION.
"NO EVIDENCE WAS PRESENTED TO SHOW THAT THE APPELLANT WAS MENTALLY OR
PHYSICALLY INCAPABLE
OF COMMUNICATING TO THE AGENCY HIS DESIRE TO HAVE SOMEONE REPRESENT
HIM . . .
"WE CONCLUDE THAT, IN THE ABSENCE OF ANY COMMUNICATION FROM THE
APPELLANT TO THE DESIGNATED
OFFICIAL WHICH EXPRESSED AN INTENTION TO ANSWER OR TO BE REPRESENTED
BY ANY PERSON AND, IN THE
ABSENCE OF ANY EVIDENCE TO SHOW THAT THE APPELLANT WAS MENTALLY OR
PHYSICALLY INCAPABLE OF
COMMUNICATING HIS INTENTIONS TO THAT OFFICIAL, THE AGENCY DID NOT ACT
IMPROPERLY IN DECLINING
TO GRANT THE REQUEST OF ANY OTHER PERSON FOR AN EXTENSION IN WHICH TO
ANSWER . . .
"WE NOTE THAT THE EVIDENCE SHOWS THAT THE EMPLOYEE UNION HAS FILED AN
UNFAIR LABOR PRACTICE
CLAIM, ALLEGING THAT THE AGENCY'S FAILURE TO ALLOW MR. SEIDL ACTING,
(IN) HIS CAPACITY AS AN
OFFICIAL OF THE UNION, TO REPRESENT THE EMPLOYEE. HOWEVER, THAT IS
NOT AT ISSUE HERE."
THEREAFTER CAMPBELL THROUGH HIS REPRESENTATIVE SEIDL APPEALED THE
DECISION OF THE CIVIL SERVICE COMMISSION, ATLANTA REGION OFFICE TO THE
BOARD OF APPEALS AND REVIEW. THE BOARD OF APPEALS AND REVIEW AFFIRMED
THE DECISION OF THE COMMISSION'S ATLANTA REGIONAL OFFICE AND HELD, INTER
ALIA: /36/
"THE BOARD FINDS, AS DID THE REGION, NO ERROR ON THE PART OF THE
AGENCY OFFICIAL IN
DECLINING TO GRANT AN EXTENSION OF TIME TO THE UNION REPRESENTATIVE
TO REPLY TO THE CHARGE
WITHOUT AN EXPRESSED INTENT BY THE APPELLANT THAT SUCH PERSON WAS HIS
DESIGNATED
REPRESENTATIVE. EVEN THOUGH APPELLANT NOW CONTENDS THAT THE AGENCY
OFFICIAL ACTED ARBITRARILY
IN VIEW OF THE FACT THAT THIS SAME REPRESENTATIVE HAD REPRESENTED
APPELLANT IN A PRIOR ADVERSE
ACTION IN A SHORT TIME BEFORE, THE EVIDENCE SHOWS THAT NO
COMMUNICATION WAS RECEIVED BY THE
AGENCY IN THIS PARTICULAR SITUATION FROM THE APPELLANT EITHER ORALLY
OR IN WRITING. THE
APPELLANT WAS ADVISED IN THE ADVANCE NOTICE THAT HE HAD 10 CALENDAR
DAYS TO REPLY, AND THAT
CONSIDERATION WOULD BE GIVEN TO EXTENDING THE TIME IF HE SUBMITTED A
REQUEST GIVING HIS
REASONS FOR NEEDING MORE TIME. THE RECORD REVEALS THAT THE APPELLANT
WAS IN CONTACT WITH THE
AGENCY DURING THE TIME HE WAS GRANTED TO RESPOND TO THE CHARGES, AND
HE DID NOT ASK FOR AN
EXTENSION OF TIME; INDICATE AN INTENTION TO ANSWER THE CHANGES; OR
DESIGNATE A
REPRESENTATIVE. IN THE ABSENCE OF ANY EVIDENCE OF AN ATTEMPT BY THE
APPELLANT TO DESIGNATE A
REPRESENTATIVE OR TO REPLY TO THE CHARGES HIMSELF DURING THE
ANSWERING PERIOD, AND PRIOR TO
THE AGENCY'S DECISION DATED MAY 24, 1972, THE BOARD FINDS THAT
APPELLANT'S RIGHTS WERE NOT
VIOLATED . . . "
(11) POSITIONS OF THE PARTIES
COMPLAINANT CONTENDS THAT IT HAS THE RIGHT, WITH OR WITHOUT ANY OVERT
AUTHORIZATION FROM AN EMPLOYEE, TO REPRESENT AS A UNION THE INTEREST OF
ANY EMPLOYEE IN A DISCIPLINARY REMOVAL ACTION, ESPECIALLY WHEN THE UNION
HAS KNOWLEDGE THAT THE EMPLOYEE IS TEMPORARILY UNABLE TO PROTECT HIS OWN
INTERESTS. COMPLAINANT ARGUES THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER, (1) WHEN IT REFUSED TO ACKNOWLEDGE THAT
THE UNION HAD A RIGHT UNDER SECTION 10(E) OF THE ORDER TO ACT IN THE
INTEREST OF CAMPBELL AND, (2) WHEN CLAYTON INFORMED SEIDL THAT THE UNION
HAD NO BUSINESS REPRESENTING CAMPBELL AND THAT SEIDL COULD NOT REPRESENT
CAMPBELL AS A UNION REPRESENTATIVE. THE UNION FURTHER CONTENDS THAT THE
ACTIVITY "ABROGATED" RIGHTS GIVEN TO THE UNION IN ARTICLE 14 SECTION 2
OF THE BASIC AGREEMENT AND THEREBY ALSO VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER.
THE ACTIVITY CONTENDS THAT SECTION 10(E) OF THE ORDER DID NOT GIVE
THE UNION AN AUTOMATIC RIGHT TO ACT AS CAMPBELL'S REPRESENTATIVE IN
MAKING HIS REPLY TO THE PROPOSED ADVERSE ACTION; THAT THE INSTANT
COMPLAINT SHOULD BE DISMISSED SINCE THE COMPLAINT CONTAINS ISSUES THAT
WERE PROPERLY RAISED AND LITIGATED UNDER THE APPEALS PROCEDURE AND, BY
VIRTUE OF SECTION 19(D) OF THE ORDER, CANNOT BE RAISED UNDER SECTION 19
OF THE ORDER. THE ACTIVITY FURTHER CONTENDS THAT SEIDL WAS NOT
CAMPBELL'S DESIGNATED REPRESENTATIVE IN MAKING A REPLY TO THE PROPOSED
ADVERSE ACTION OF APRIL 1972.
(12) DISCUSSION AND CONCLUSIONS - CASE NO. 41-3129(CA)
SECTION 10(E) OF THE ORDER PROVIDES, IN RELEVANT PART:
"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 INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP . . . "
HOWEVER, A UNION'S RIGHTS AND RESPONSIBILITIES AS SET FORTH IN
SECTION 10(E) OF THE ORDER MUST BE VIEWED IN RELATIONSHIP TO OTHER
PROVISIONS OF THE ORDER. THUS, SECTION 7(D)(1) OF THE ORDER PROVIDES
THAT:
"RECOGNITION OF A LABOR ORGANIZATION DOES NOT PRECLUDE AN EMPLOYEE,
REGARDLESS OF WHETHER
HE IS IN A UNIT OF EXCLUSIVE RECOGNITION, FROM EXERCISING GRIEVANCES
OR APPELLATE RIGHTS
ESTABLISHED BY LAW OR REGULATIONS; OR FROM CHOOSING HIS OWN
REPRESENTATIVE IN A GRIEVANCE OR
APPELLATE ACTION, EXCEPT WHEN PRESENTING A GRIEVANCE UNDER A
NEGOTIATED PROCEDURE AS PROVIDED
IN SECTION 13."
THEREFORE IT APPEARS THAT UNDER SECTION 7(D)(1) OF THE ORDER CAMPBELL
HAD A RIGHT TO CHOOSE "HIS OWN REPRESENTATIVE" RELATIVE TO THE PROPOSED
ADVERSE ACTION PROCEEDINGS. IF A UNION AUTOMATICALLY BECAME AN
APPELLANT'S REPRESENTATIVE AS COMPLAINANT URGES HEREIN, THE CHOICE GIVEN
AN EMPLOYEE UNDER SECTION 7(D)(1) OF THE ORDER WOULD BE MEANINGLESS, OR
THE INDIVIDUAL WOULD BE PLACED IN THE ANOMALOUS SITUATION OF HAVING TWO
REPRESENTATIVES; ONE BASED UPON HIS OWN SPECIFIC CHOICE, AND ANOTHER BY
OPERATION OF THE ORDER. IT IS CONCEIVABLE THAT THE TWO REPRESENTATIVES
MIGHT WISH TO HANDLE THE APPELLATE ACTION IN TOTALLY DIFFERENT WAYS.
INDEED A UNION'S INTEREST MAY NOT ALWAYS BE CO-EXTENSIVE WITH THE
PARTICULAR APPELLANT'S INTEREST AND IF THE UNION WAS A REPRESENTATIVE BY
OPERATION OF THE ORDER, THE APPELLANT WOULD BE POWERLESS TO ORDER THE
UNION TO DISCONTINUE "REPRESENTING" HIM IN THE MATTER. IN MY VIEW THE
ARCHITECTS OF THE ORDER INTENDED TO AVOID ANY SUCH SITUATION BY GIVING
TO THE INDIVIDUAL EMPLOYEE IN AN APPELLATE ACTION THE RIGHT TO CHOOSE
HIS OWN REPRESENTATIVE AND SUCH RIGHT NECESSARILY PRECLUDES A UNION FROM
EXERCISING ANY "AUTOMATIC" RIGHT TO REPRESENT HIM.
MOREOVER, THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES APPEARS TO
ESPOUSE THIS CONCEPT. THUS, ARTICLE 14 (ADVERSE ACTIONS AND
DISCIPLINARY ACTIONS), SECTION 2 PROVIDES, INTER ALIA:
"WHEN THE EMPLOYER CONTEMPLATES DISCIPLINARY OR ADVERSE ACTION
AGAINST AN EMPLOYEE, THE
EMPLOYEE WILL BE NOTIFIED, IN WRITING, OF THE PROPOSED ACTION AND THE
REASONS THEREFORE. SUCH
ACTIONS MUST BE FOR JUST CAUSE AND THE EMPLOYEE SHALL HAVE THE
OPPORTUNITY TO REPLY TO THE
CHARGES, PERSONALLY AND/OR IN WRITING TO THE APPROPRIATE MANAGEMENT
OFFICIAL. IN MAKING HIS
REPLY, THE EMPLOYEE MAY BE REPRESENTED BY HIS UNION REPRESENTATIVE OR
ANY PERSON OF HIS CHOICE
WHO IS WILLING TO REPRESENT HIM . . . " (EMPHASIS SUPPLIED.)
SECTION 3 OF ARTICLE 14 PROVIDES:
"WHEN A NOTICE OF DECISION TO EFFECT A DISCIPLINARY OR ADVERSE ACTION
IS ISSUED TO THE
EMPLOYEE, AND THE EMPLOYEE APPEALS THE UNION, BUT DOES NOT SELECT A
UNION REPRESENTATIVE, THE
UNION SHALL HAVE THE RIGHT TO HAVE AN OBSERVER PRESENT AT THE HEARING
AND TO MAKE THE VIEWS OF
THE UNION KNOWN UNDER THE CONDITIONS SET FORTH IN APPLICABLE
REGULATIONS."
BOTH OF THE AFOREMENTIONED SECTIONS OF ARTICLE 14, WHEN READ
TOGETHER, DEMONSTRATE THAT IN THE NEGOTIATED AGREEMENT, THE UNION HAS
RECOGNIZED THE ROLE OF THE INDIVIDUAL EMPLOYEE'S CHOICE IN PICKING HIS
REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING. FURTHER THE ABOVE
QUOTED SECTIONS OF ARTICLE 14 INDICATE THAT THE UNION, BY AGREEMENT, HAS
ACKNOWLEDGED THAT UNLESS SPECIFICALLY CHOSEN BY THE INDIVIDUAL EMPLOYEE,
IT DOES NOT ACT AS HIS REPRESENTATIVE IN AN ADVERSE ACTION PROCEEDING
WHICH ARISES AS IN THE CASE HEREIN.
ACCORDINGLY, IN VIEW OF THE FOREGOING, I FIND THAT NEITHER SECTION
10(E) OF THE EXECUTIVE ORDER NOR THE PARTIES NEGOTIATED AGREEMENT
CONFERRED UPON THE UNION THE ABSOLUTE RIGHT TO REPRESENT CAMPBELL IN
REPLYING TO OR REQUESTING AN EXTENSION OF TIME TO REPLY TO THE
ACTIVITY'S NOTICE OF PROPOSED REMOVAL.
WITH REGARD TO THE APPLICABILITY OF SECTION 19(D) OF THE ORDER TO THE
ISSUES HEREIN, I FIND THAT THE QUESTION OF WHETHER CAMPBELL DESIGNATED
THE UNION OR ANYONE ELSE TO REPRESENT HIM WITH REGARD TO REPLYING TO THE
ACTIVITY'S NOTICE OF PROPOSED REMOVAL WAS AN ISSUE WHICH WOULD PROPERLY
BE RAISED, AND INDEED WAS RAISED UNDER THE APPEAL'S PROCEDURE AND
ACCORDINGLY MAY NOT BE RAISED IN THE UNFAIR LABOR PRACTICE PROCEEDING
HEREIN. SECTION 19(D) OF THE ORDER PROVIDES IN RELEVANT PART: "ISSUES
WHICH CAN PROPERLY BE RAISED UNDER AN APPEALS PROCEDURE MAY NOT BE
RAISED UNDER THIS SECTION . . . " IT IS CLEAR FROM THE TESTIMONY ADDUCED
AT THE INSTANT HEARING, THE SUMMARY OF THE HEARING BEFORE A
REPRESENTATIVE OF THE CIVIL SERVICE COMMISSION ON SEPTEMBER 19, 1972,
/37/ THE DECISION OF THE COMMISSION'S ATLANTA REGIONAL OFFICE AND THE
DECISION OF THE BOARD OF APPEALS AND REVIEW THAT THIS QUESTION WAS AN
INTEGRAL PART OF THE APPEAL AND LITIGATED AT EVERY STEP OF THOSE
PROCEEDINGS. TO ALLOW RELITIGATION OF THAT ISSUE IN THE PROCEEDINGS
HEREIN WOULD, IN MY VIEW, RUN DIRECTLY CONTRARY TO THE PROSCRIPTION OF
SECTION 19(D) OF THE ORDER. /38/
HOWEVER, I FIND THAT THE ISSUE OF WHETHER CLAYTON'S STATEMENTS TO
SEIDL AND ABBOTT ON MAY 3, 1972, CONSTITUTED A VIOLATION OF THE ORDER
AND WAS AN ISSUE WHICH WAS NOT CONSIDERED BY THE COMMISSION OR THE BOARD
OF APPEALS AND REVIEW. IN MY VIEW CLAYTON'S STATEMENT TO THE EFFECT
THAT THE UNION DID NOT HAVE A RIGHT TO REPRESENT CAMPBELL, AND EVEN IF
CAMPBELL WOULD DESIGNATE SEIDL AS A PERSONAL REPRESENTATIVE IN WRITING
SEIDL COULD NOT REPRESENT CAMPBELL AS A UNION REPRESENTATIVE CARRIED
WITH IT THE CLEAR IMPLICATION THAT THE ACTIVITY WOULD NOT RECOGNIZE
SEIDL AS CAMPBELL'S REPRESENTATIVE IN HIS CAPACITY AS CHIEF STEWARD OF
THE UNION. CLAYTON WAS CONVEYING THE IMPRESSION THAT CAMPBELL COULD NOT
DESIGNATE THE UNION, IN THE PERSONAGE OF SEIDL, AS HIS REPRESENTATIVE
BUT RATHER COULD ONLY PICK SEIDL IF SEIDL WAS DIVORCED FROM HIS ROLE AS
CHIEF STEWARD OF THE UNION. /39/ RESPONDENT ACKNOWLEDGES THAT IT HAS
BEEN THE PRACTICE AND POLICY OF THE DEPARTMENT OF THE NAVY TO EXTEND TO
EMPLOYEES THE RIGHT TO A REPRESENTATIVE OF THEIR OWN CHOOSING IN MAKING
A WRITTEN AS WELL AS ORAL REPLY TO A PROPOSED ADVERSE ACTION. FOR THE
ACTIVITY TO ALLOW AN EMPLOYEE TO SELECT A REPRESENTATIVE AND AT THE SAME
TIME INDICATE THAT IT WOULD NOT RECOGNIZE A REPRESENTATIVE IF HE
REPRESENTS THE EMPLOYEE AS A UNION OFFICIAL DEMEANS AND DISPARAGES THE
UNION IN THE EYES OF THE EMPLOYEES IT REPRESENTS. ACCORDINGLY, I FIND
THAT CLAYTON'S REMARKS OF MAY 3, 1972, TO SEIDL AND ABBOTT, WHO WERE
EMPLOYEES AS WELL AS UNION REPRESENTATIVES, VIOLATED SECTION 19(A)(1) OF
THE ORDER. /40/
THE ASSISTANT SECRETARY HELD THAT SUCH CONDUCT TENDS TO RESTRAIN AND
DISCOURAGE EMPLOYEES FROM EXERCISING RIGHTS GRANTED THEM UNDER SECTION
1(A) OF THE ORDER. /41/
(13) RECOMMENDATION
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 SECTION 19(A)(6) OF THE ORDER AND ACCORDINGLY
RECOMMEND THAT SUCH ALLEGATION IN CASE NO. 41-3129(CA) BE DISMISSED.
HOWEVER, HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN 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.
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 U.S. DEPARTMENT OF
THE NAVY, NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY SHALL:
(1) CEASE AND DESIST FROM:
A. CONDUCTING FORMAL DISCUSSIONS BETWEEN MANAGEMENT AND EMPLOYEES OF
EMPLOYEE-REPRESENTATIVES CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER
MATTERS AFFECTING GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE UNIT
WITHOUT GIVING LOCAL
LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, 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
FAILING TO PROVIDE LOCAL
LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, 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. INFORMING ITS EMPLOYEES THAT AN OFFICIAL OF LOCAL LODGE 830,
INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, THE EMPLOYEES EXCLUSIVE
REPRESENTATIVE, IN HIS
OFFICIAL CAPACITY, MAY NOT BE DESIGNATED AS AN EMPLOYEE'S
REPRESENTATIVE IN MAKING A REPLY TO
A NOTICE OF PROPOSED ADVERSE ACTION.
D. 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 EXECUTIVE ORDER:
A. UPON REQUEST OF LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, CONSIDER GRIEVANCE EXAMINER SHAW'S INQUIRY AND
REPORT AND RECOMMENDATIONS
RELATIVE TO PAUL PRINCE'S APPEAL OF HIS LETTER OF REPRIMAND NULL AND
VOID; RESCIND THE
COMMANDING OFFICER'S APPROVAL AND ADOPTION OF GRIEVANCE EXAMINER
SHAW'S REPORT AND
RECOMMENDATION; AND 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.
B. NOTIFY LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS,
AFL-CIO, OF AND GIVE IT THE OPPORTUNITY TO BE REPRESENTED AT FORMAL
DISCUSSIONS BETWEEN
MANAGEMENT AND EMPLOYEES OR EMPLOYEES-REPRESENTATIVES GRIEVANCES,
PERSONNEL POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT.
C. POST AT ITS FACILITY AT THE NAVAL ORDNANCE STATION, LOUISVILLE,
KENTUCKY, 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, U.S. DEPARTMENT OF THE NAVY, NAVAL ORDNANCE
STATION, LOUISVILLE, KENTUCKY,
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.
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: JANUARY 11, 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 LODGE
830, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, THE EMPLOYEE'S 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, LOCAL LODGE 830, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, IN HIS OFFICIAL CAPACITY, MAY
NOT BE DESIGNATED AS AN EMPLOYEE'S 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 LOCAL LODGE 830, INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, TREAT AS NULL AND VOID
GRIEVANCE EXAMINER SHAW'S REPORT AND RECOMMENDATIONS 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 HAS NOT YET CONDUCTED HIS INQUIRY INTO THE
MATTER.
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 ASSISTANT
REGIONAL DIRECTOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR WHOSE ADDRESS IS 1371 PEACHTREE
STREET, N.E.,ROOM 300, ATLANTA, GEORGIA 30309.
/1/ AT THE HEARING THE PARTIES INDICATED THEIR DESIRE TO HAVE THREE
SEPARATE DECISIONS ISSUED ON THE THREE COMPLAINTS WHICH ARE THE SUBJECT
MATTER OF THIS PROCEEDING. I AGREED TO ACCOMMODATE THE PARTIES.
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 THREE SEPARATE REPORTS, I SHALL ISSUE ONE
REPORT WHICH WILL ENCOMPASS THE ALLEGATIONS OF THE THREE ABOVE-CAPTIONED
COMPLAINTS.
/2/ ALL THREE COMPLAINTS CONTAINED THE FOLLOWING "CATCH-ALL" PHRASE:
"BY THE ABOVE AND OTHER ACTS, THE ABOVE-NAMED ACTIVITY HAS
INTERFERED, WITH RESTRAINED, AND COERCED EMPLOYEES IN THE EXERCISE OF
RIGHTS GUARANTEED IN SECTION 1 OF EXECUTIVE ORDER 11491." AT THE
HEARING, COUNSEL FOR RESPONDENT MOVED TO STRIKE FROM THE COMPLAINTS
REFERENCE TO "AND OTHER." I REFUSED TO GRANT RESPONDENT'S MOTION
INDICATING AT THE TIME THAT IF COUNSEL FOR RESPONDENT FELT THAT
COMPLAINANT WAS EXCEEDING THE FOUR-CORNERS OF THE COMPLAINTS DURING
LITIGATION, HE COULD OBJECT. RESPONDENT IN ITS BRIEF RENEWED ITS MOTION
TO STRIKE THE WORDS "AND OTHER" ON THE GROUND THAT THESE WORDS FAILED TO
CONFORM TO SECTION 203.3(A)(3) OF THE RULES AND REGULATIONS OF THE
ASSISTANT SECRETARY. ALTHOUGH I FIND THE REFERENCE TO "AND OTHERS"
(ACTS) SUPERFLUOUS AND DOES NOT EXPAND THE SPECIFIC ALLEGATIONS IN THE
COMPLAINTS, THIS DOES NOT WARRANT STRIKING SUCH LANGUAGE AND ACCORDINGLY
THE MOTION IS DENIED.
/3/ COMPLAINANT EXHIBIT NO. 1.
/4/ JOINT EXHIBIT NO. 10.
/5/ JOINT EXHIBIT NO. 11.
/6/ ARTICLE 32 SECTION 5 OF THE AGREEMENT (COMPLAINANT EXHIBIT NO.
1) PROVIDES:
"SECTION 5. THE EMPLOYER AGREES THAT UNIT EMPLOYEES WILL BE
SPECIFICALLY ASSIGNED TO ONE (1) FIRST LINE SUPERVISOR, WHO SHALL BE
RESPONSIBLE FOR APPROVING LEAVE, MARKING PERFORMANCE RATINGS, INITIATING
DISCIPLINARY ACTION, OR DIRECTING THE WORK OF EMPLOYEES UNDER HIS
SUPERVISION."
/7/ JOINT EXHIBIT NO. 12.
/8/ JOINT EXHIBIT NO. 13.
/9/ JOINT EXHIBIT NO. 14.
/10/ AT THE CLOSE OF THE HEARING COUNSEL FOR RESPONDENT STATED THAT
THE ACTIVITY WOULD NOT "HENCEFORTH" RECOGNIZE THAT PROGRESSMEN WERE
INCLUDED IN THE BARGAINING UNIT SINCE THE EVIDENCE, IN ITS VIEW,
"CLEARLY" ESTABLISHED THE SUPERVISORY STATUS OF PROGRESSMEN.
/11/ THE ACTIVITY FILED A MOTION TO DISMISS DATED SEPTEMBER 19, 1972,
WITH THE REGIONAL ADMINISTRATOR OF THE ATLANTA REGION, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, U.S. DEPARTMENT OF LABOR ON THE GROUND THAT A
REASONABLE BASIS FOR THE COMPLAINT HAD NOT BEEN ESTABLISHED AND/OR A
SATISFACTORY OFFER OF SETTLEMENT HAD BEEN MADE TO THE ALLEGATIONS
THEREIN. THE UNION FILED A MOTION IN OPPOSITION TO THE ACTIVITY'S
MOTION BUT THE REGIONAL ADMINISTRATOR DID NOT SPECIFICALLY RULE ON SAID
MOTIONS. AT THE HEARING THE MOTIONS AND SUPPORTING BRIEFS WERE
SUBMITTED TO ME AND I INFORMED THE PARTIES THAT I WOULD CONSIDER THE
MOTIONS IN MY REPORT. THE ACTIVITY'S MOTION TO DISMISS IS POSITED ON
THE BELIEF THAT THE SOLE ISSUE PRESENTED BY THE COMPLAINT IS WHETHER THE
ACTIVITY MAY UNILATERALLY EXCLUDE PROGRESSMEN FROM THE ESTABLISHED UNIT
ON THE BASIS THAT THEY ARE SUPERVISORS, THE ACTIVITY ARGUES THAT IT DID
NOT EXCLUDE PROGRESSMEN FROM THE UNIT, POINTING TO ITS DECISION TO
SUBMIT THE MATTER TO THE ASSISTANT SECRETARY VIA A UNIT CLARIFICATION
PETITION IF IT CONCLUDED THAT PROGRESSMEN WERE SUPERVISORS WITHIN THE
MEANING OF THE ORDER.
THE MOTION TO DISMISS IS DENIED. THE QUESTION OF WHETHER THE
ACTIVITY UNILATERALLY EXCLUDED PROGRESSMEN FROM THE UNIT IS NOT THE ONLY
ISSUE IN THIS CASE. WHETHER THE ACTIVITY WAS PERMITTED TO UNILATERALLY
CHANGE THE PROGRESSMEN'S JOB DESCRIPTION IS ALSO IN ISSUE. IN ANY EVENT
THE QUESTION OF UNILATERAL EXCLUSION OF PROGRESSMEN FROM THE UNIT WAS
PUT IN ISSUE WHEN THE ACTIVITY INDICATED, AT THE CONCLUSION OF THE
HEARING, THAT IT WOULD NOT "HENCEFORTH" RECOGNIZE THAT PROGRESSMEN WERE
WITH REGARD TO THE ACTIVITY'S CONTENTION THAT A SATISFACTORY OFFER OF
SETTLEMENT HAS BEEN MADE, UNDER SECTION 203.7(A) OF THE REGULATIONS, AN
OFFER OF SETTLEMENT MUST BE MADE TO AND APPROVED BY THE REGIONAL
ADMINISTRATOR. NO APPROVAL CAN BE CONSTRUED ON THE FACTS HEREIN.
/12/ THE CONTRACTUAL GRIEVANCE PROCEDURE PROVIDES THAT AN AGGRIEVED
EMPLOYEE SHALL FIRST INFORMALLY DISCUSS THE COMPLAINT OR GRIEVANCE WITH
THE IMMEDIATE SUPERVISOR. IF THE MATTER IS NOT RESOLVED, THE GRIEVANCE
SHALL BE REDUCED TO WRITING AND SUBMITTED BY THE AREA STEWARD TO THE
HEAD OF THE SHOP, OFFICE OR DEPARTMENT INVOLVED " . . . WHO, WITH THE
LESSER RANKING SUPERVISORS CONCERNED SHALL MEET WITH AND DISCUSS THE
GRIEVANCE WITH THE AREA STEWARD, SHOP STEWARD AND THE AGGRIEVED
EMPLOYEE."
/13/ THE RECORD IS REPLETED WITH OTHER EVIDENCE OF PROGRESSMEN'S
DUTIES, RESPONSIBILITIES AND AUTHORITY BUT THE ABOVE WILL SUFFICE FOR
THE PURPOSES OF THIS REPORT.
/14/ UNITED STATES NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA,
A/SLMR, NO. 128, FLRC NO. 72A-11; UNITED STATES DEPARTMENT OF
AGRICULTURE, NORTHERN MARKETING AND NUTRITION RESEARCH DIVISION, PEORIA,
ILLINOIS, A/SLMR, NO. 120.
/15/ SECTION 24 INDICATES THAT THE ORDER DOES NOT PRECLUDE THE
RENEWAL OR CONTINUATION OF CERTAIN LAWFUL AGREEMENTS NOR RECOGNITION FOR
UNITS OF SUPERVISORS, UNDER SPECIFIED CIRCUMSTANCES. (IDENTICAL TO THE
PROVISIONS AS SET FORTH IN FOOTNOTE 16 HEREIN.
/16/ SECTION 24(A) OF THE UNAMENDED ORDER PROVIDES AS FOLLOWS:
"SECTION 24. SAVINGS CLAUSES. (A) THIS ORDER DOES NOT PRECLUDE:
(1) THE RENEWAL OR CONTINUATION OF A LAWFUL AGREEMENT BETWEEN AN
AGENCY AND A REPRESENTATIVE OF ITS EMPLOYEES ENTERED INTO BEFORE THE
EFFECTIVE DATE OF EXECUTIVE ORDER 10988 (JANUARY 17, 1962); OR
(2) THE RENEWAL, CONTINUATION, OR INITIAL ACCORDING OF RECOGNITION
FOR UNITS OF MANAGEMENT OFFICIALS OR SUPERVISORS REPRESENTED BY LABOR
ORGANIZATIONS WHICH HISTORICALLY OR TRADITIONALLY REPRESENT THE
MANAGEMENT OFFICIALS OR SUPERVISORS IN PRIVATE INDUSTRY AND WHICH HOLD
EXCLUSIVE RECOGNITION FOR UNITS OF SUCH OFFICIALS OR SUPERVISORS IN ANY
AGENCY ON THE DATE OF THIS ORDER.
/17/ TO HOLD OTHERWISE WOULD CONCEIVABLY RENDER THE ACTIVITY
VULNERABLE TO AN UNFAIR LABOR PRACTICE COMPLAINT OF VIOLATING SECTION
19(A)(3) OF THE ORDER.
/18/ UNDER APPROPRIATE REGULATIONS (FPM CHAPTER 771, SUBCHAPTER 3-11)
THE GRIEVANCE EXAMINER MAY CONDUCT THE INQUIRY BY, AT HIS DISCRETION,
SECURING DOCUMENTARY EVIDENCE, CONDUCTING PERSONAL INTERVIEWS OR A GROUP
MEETING, CONDUCTING A HEARING, OR THROUGH ANY COMBINATION OF THE
FOREGOING. THEREAFTER, THE EXAMINER MUST PREPARE A REPORT OF FINDINGS
AND RECOMMENDATIONS WHICH HE SUBMITS TO THE DECIDING OFFICIAL, THE
ACTIVITY'S COMMANDING OFFICER IN THE INSTANT CASE.
/19/ PRINCE HAD BEEN GIVEN A COPY OF THE CASE FILE PRIOR TO THIS
MEETING AND ACCORDINGLY WAS FAMILIAR WITH ITS CONTENTS.
/20/ COMPLAINANT EXHIBIT NO. 2.
/21/ A SPECIFIC CREDIBILITY RESOLUTION AS TO WHETHER THE FPM
REGULATIONS OR THE CONTRACT WAS REFERRED TO IN THIS DISCUSSION IS NOT
NECESSARY TO THE DISPOSITION OF THIS CASE.
/22/ FPM CHAPTER 771, SUBCHAPTER 3-7, ET. SEQ.
/23/ CF. U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, A/SLMR NO.
242.
/24/ RESPONDENT EXHIBIT NO. 1 (NAVY REGULATION CMMI 771.5 EMPLOYEE
GRIEVANCES AND ADMINISTRATIVE APPEALS).
/25/ NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA,
A/SLMR, NO. 223.
/26/ NASA, KENNEDY SPACE CENTER, IBID.
/27/ CF. U.S. ARMY HEADQUARTER, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, A/SLMR, NO.
242; AND CF. U.S. DEPARTMENT OF THE ARMY, TRANSPORTATION MOTOR POOL,
FT. WAINWRIGHT, ALASKA, A/SLMR, NO. 278.
/28/ NEITHER CAMPBELL NOR SLOAN TESTIFIED IN THIS PROCEEDING.
/29/ THE NOTICE OF PROPOSED REMOVAL DATED APRIL 20, 1972, STATED:
"YOU WILL BE ALLOWED TWO (2) HOURS OF OFFICIAL TIME IN WHICH TO
REVIEW THE INVESTIGATIVE
MATERIAL, TO PREPARE YOUR WRITTEN REPLY OR SECURE AFFIDAVITS. YOU
MAY ARRANGE FOR USE OF THIS
OFFICIAL TIME, BY CONTACTING YOUR SUPERVISOR, MR. GEORGE SLOAN."
APPARENTLY BOTH CAMPBELL AND HIS DESIGNATED REPRESENTATIVE WERE
ENTITLED TO THE TWO HOURS OF OFFICIAL TIME.
/30/ COMPLAINANT EXHIBIT NO. 12.
/31/ IN A MEMORANDUM DATED MAY 3, 1972, FROM CLAYTON TO THE CHIEF
STEWARD, LODGE 830, IAM-AW, CLAYTON STATED:
"YOUR REQUEST FOR AN EXTENSION OF TIME IN REPLYING TO THE CHARGE
LEVELED AGAINST MR. OVA
CAMPBELL, PREDICATED UPON THE FACT THAT YOU ARE DESIGNATED AS MR.
CAMPBELL'S REPRESENTATIVE IS
HEREBY DENIED. THE DENIAL IS BASED UPON THE FACT THAT MR. CAMPBELL
HAS NOT DESIGNATED A
REPRESENTATIVE IN THE LATEST ACTION AGAINST HIM AS OF THIS DATE THAT
I CAN LEGALLY
ACKNOWLEDGE."
/32/ CLAYTON WAS NOT CALLED TO TESTIFY IN THIS PROCEEDING.
/33/ SEIDL REPRESENTED CAMPBELL AT THAT HEARING, HAVING BEEN
DESIGNATED BY CAMPBELL, IN WRITING, AS HIS REPRESENTATIVE.
/34/ THE UNFAIR LABOR PRACTICE CHARGE RELATIVE TO THIS MATTER WAS
FILED ON JUNE 30, 1972.
/35/ AFTER THE HEARING BEFORE ME CLOSED, RESPONDENT MOVED TO REOPEN
THE RECORD IN ORDER TO HAVE ADMITTED AS PART OF THE RECORD, THE
COMMISSION'S DECISION ON MR. CAMPBELL'S APPEAL. THE MOTION WAS OPPOSED
BY COMPLAINANT IN THAT THE DECISION WAS AVAILABLE AT THE TIME OF THE
HEARING HEREIN. I DENIED THE MOTION TO REOPEN THE RECORD AND ORDERED
THE COMMISSION'S DECISION TO BE PLACED IN THE REJECTED EXHIBIT FILE.
HOWEVER, IT IS NOW APPARENT THAT THIS DECISION IS ESSENTIAL TO A
DISPOSITION OF THE ISSUES POSTED HEREIN. ACCORDINGLY I AM HEREWITH
RESCINDING MY PRIOR RULING AND SHALL ADMIT IN EVIDENCE AS RESPONDENT
EXHIBIT NO. 10, THE DECISION OF THE U.S. CIVIL SERVICE COMMISSION,
ATLANTA REGIONAL, OFFICE OF THE DIRECTOR, ATLANTA, GEORGIA, RELATIVE TO
MR. CAMPBELL'S APPEAL.
/36/ RESPONDENT EXHIBIT NO. 9.
/37/ RESPONDENT EXHIBIT NO. 3.
/38/ CF. VETERANS ADMINISTRATION, VETERANS BENEFITS OFFICE, A/SLMR,
NO. 296.
/39/ THIS CONCLUSION IS SUPPORTED IN PART BY THE WRITTEN RESPONSE
CLAYTON MADE TO SEIDL RELATIVE TO SEIDL'S REQUEST FOR AN EXTENSION OF
TIME TO RESPOND TO A PRIOR NOTICE OF PROPOSED REMOVAL ISSUED TO CAMPBELL
ON THE 25TH OF JANUARY 1972. IN THAT MATTER CAMPBELL DESIGNATED "JAMES
SEIDL, CHIEF STEWARD OF LODGE 830," TO BE HIS REPRESENTATIVE.
(COMPLAINANT EXHIBIT NO. 7.) THEREAFTER, ON JANUARY 31, SEIDL REQUESTED
THAT HE BE GIVEN AN EXTENSION OF THE TIME LIMITS TO RESPOND AND SIGNED
THE REQUEST "JAMES W. SEIDL, CHIEF STEWARD LOCAL LODGE 830, IAM-AW."
CLAYTON RETURNED THE REQUEST TO SEIDL, NOTING INTER ALIA"
"BASIC CORRESPONDENCE IS RETURNED HEREWITH AS UNACCEPTABLE IN VIEW OF
THE FACT THAT
OFFICIAL UNION CORRESPONDENCE HAS NO PLACE IN THE NAVY'S DISCIPLINARY
ACTION AND/OR PROCEDURES
AT THIS STAGE OF THE PROCEEDING AGAINST MR. OVA CAMPBELL. IT WAS
ORIGINALLY EXPLAINED TO YOU
WHEN MR. CAMPBELL DESIGNATED YOU AS HIS REPRESENTATIVE THAT THE UNION
HAS NO PLACE IN THE
PROCEEDING AT THIS STAGE OF THE DISCIPLINARY ACTION. FURTHER
CORRESPONDENCE IN BEHALF OF
MR. CAMPBELL WILL BE HONORED AND GIVEN CONSIDERATION ONLY UPON
REQUEST FROM MR. CAMPBELL
AND/OR FROM MR. CAMPBELL'S DESIGNATED REPRESENTATIVE." (COMPLAINANT
EXHIBIT NO. 9.)
WHILE THE CORRESPONDENCE WITH REGARD TO THE PRIOR NOTICE OF PROPOSED
REMOVAL IS NOT AT ISSUE IN THE PROCEEDING HEREIN, IT MAY BE USED TO
PROVIDE BACKGROUND INFORMATION FOR THE PURPOSE OF EVALUATING CLAYTON'S
STATEMENTS WHICH ARE ALLEGED TO CONSTITUTE A VIOLATION OF SECTION
19(A)(1) OF THE ORDER.
/40/ I DO NOT FIND A VIOLATION OF 19(A)(6) IN THE CIRCUMSTANCES OF
THIS CASE. AS HEREINBEFORE SET FORTH, I CONSIDER MYSELF BOUND BY THE
FINDINGS OF THE CIVIL SERVICE COMMISSION AND THE BOARD OF APPEALS AND
REVIEW WITH REGARD TO THE ISSUE OF WHETHER CAMPBELL DESIGNATED ANYONE TO
REPRESENT HIM IN THE MATTER OF HIS APPEAL. WITHOUT SUCH DESIGNATION, NO
FINDING OF REFUSAL TO RECOGNIZE SEIDL AS A PERSONAL REPRESENTATIVE OF
CAMPBELL, OR OTHERWISE, CAN BE MADE.
/41/ U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY,
FORT JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA, A/SLMR, NO.
242.
4 A/SLMR 399; P. 381; CASE NO. 22-5048(RO); JUNE 20, 1974.
FEDERAL AVIATION ADMINISTRATION,
OFFICE OF MANAGEMENT SYSTEMS
A/SLMR NO. 399
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2211, AFL-CIO (AFGE), SOUGHT AN ELECTION IN A UNIT COMPOSED OF ALL OF
THE ACTIVITY'S PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO
THE OFFICE OF MANAGEMENT SYSTEMS (OMS) AT THE HEADQUARTERS OF THE
FEDERAL AVIATION ADMINISTRATION (FAA). THE ACTIVITY CONTESTED THE
APPROPRIATENESS OF THE UNIT SOUGHT CONTENDING THAT OMS EMPLOYEES DID NOT
POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST APART FROM OTHER
EMPLOYEES IN THE OTHER DIVISION OF THE HEADQUARTERS, AND THAT THE
CLAIMED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
THE ASSISTANT SECRETARY DETERMINED THAT THE PROPOSED UNIT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. HE NOTED THAT THE
STUDIES OMS PERFORMED IN COLLABORATION WITH OTHER HEADQUARTERS'
DIVISIONS RESULTED IN A CLOSE WORKING RELATIONSHIP BETWEEN EMPLOYEES OF
THE OMS AND THOSE OF OTHER HEADQUARTERS' DIVISIONS. HE NOTED ALSO THAT
THE OMS AND OTHER HEADQUARTERS' EMPLOYEES SHARED SIMILAR SKILLS AND JOB
CLASSIFICATIONS; HAD THE SAME FRINGE BENEFITS; AND WERE SUBJECT TO THE
SAME PERSONNEL POLICIES AND PROCEDURES. UNDER THESE CIRCUMSTANCES, THE
ASSISTANT SECRETARY CONCLUDED THAT THE EMPLOYEES SOUGHT BY THE AFGE DID
NOT POSSESS A CLEAR AND DISTINCT COMMUNITY OF INTEREST SEPARATE AND
APART FROM OTHER HEADQUARTERS' 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.
FEDERAL AVIATION ADMINISTRATION,
OFFICE OF MANAGEMENT SYSTEMS
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2211, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MADELINE E.
JACKSON. 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 ACTIVITY AND THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2211, AFL-CIO, HEREIN CALLED AFGE, 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
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE OFFICE OF
MANAGEMENT SYSTEMS (OMS) LOCATED AT THE HEADQUARTERS OF THE FEDERAL
AVIATION ADMINISTRATION (FAA) IN WASHINGTON, D.C. THE ACTIVITY CONTENDS
THAT A UNIT OF EMPLOYEES LIMITED TO THE OMS, WHICH IS ONE OF
APPROXIMATELY 25 OFFICES AT THE SAME ORGANIZATIONAL LEVEL IN FAA
HEADQUARTERS, IS INAPPROPRIATE IN THAT THE OMS EMPLOYEES DO NOT POSSESS
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST THAT IS SEPARATE AND
DISTINCT FROM OTHER HEADQUARTERS' EMPLOYEES. THE ACTIVITY FURTHER
CONTENDS THAT THE REQUESTED UNIT IS BASED ON THE AFGE'S EXTENT OF
ORGANIZATION AND THAT, IF GRANTED, SUCH UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ON THE OTHER HAND, THE
AFGE ASSERTS THAT THE OMS EMPLOYEES POSSESS A SEPARATE AND DISTINCT
COMMUNITY OF INTEREST APART FROM OTHER FAA HEADQUARTERS' EMPLOYEES BASED
ON THEIR SPECIFIC SKILLS AND FUNCTIONS. /1/ THE ACTIVITY NOTED ALSO
THAT IT WOULD EXCLUDE THE SECRETARIES OF THE DIVISION CHIEFS OF THE OMS
FROM ANY UNIT FOUND APPROPRIATE ON THE BASIS THAT THEY ARE CONFIDENTIAL
EMPLOYEES. IN THIS REGARD, THE AFGE CONTENDS THAT THE DUTIES OF THESE
EMPLOYEES DO NOT PLACE THEM IN THE CATEGORY OF CONFIDENTIAL EMPLOYEES
AND, THEREFORE, THEY SHOULD BE INCLUDED IN THE UNIT REQUESTED.
THE FAA IS ONE OF THE OPERATING COMPONENTS OF THE DEPARTMENT OF
TRANSPORTATION. ITS MISSION IS TO PROMOTE ALL ASPECTS OF AVIATION
SAFETY. FAA HEADQUARTERS, WHICH IS UNDER THE DIRECTION OF AN
ADMINISTRATOR, ASSISTED BY A DEPUTY ADMINISTRATOR, IS LOCATED IN
WASHINGTON, D.C., AND EMPLOYS APPROXIMATELY 3500 EMPLOYEES OF WHOM
APPROXIMATELY 180 ARE EMPLOYED IN THE OMS. IN THE HEADQUARTERS THERE
ARE SIX STAFF OFFICES (AVIATION MEDICINE, GENERAL AVIATION, CIVIL
RIGHTS, INFORMATION, CHIEF COUNSEL, AND INTERNATIONAL AVIATION AFFAIRS)
AND FOUR ADMINISTRATIVE DIVISIONS, PLANS, OPERATIONS, ADMINISTRATION,
AND ENGINEERING AND DEVELOPMENT. THE ADMINISTRATIVE DIVISIONS ARE UNDER
THE SUPERVISION OF ASSOCIATE ADMINISTRATORS WHO ARE RESPONSIBLE DIRECTLY
TO THE FAA ADMINISTRATOR AND THE DEPUTY ADMINISTRATOR. EACH
ADMINISTRATIVE DIVISION IS RESPONSIBLE FOR STAFF DIRECTION IN THE
PARTICULAR PROGRAM AREA INDICATED BY ITS TITLE.
THE OMS IS ONE OF EIGHT COMPONENTS UNDER THE JURSIDICTION OF THE
ASSOCIATE ADMINISTRATOR FOR ADMINISTRATION. /2/ ITS FUNCTION IS THE
DEVELOPMENT AND ADMINISTRATION OF THE FAA'S ORGANIZATIONAL PLANS,
MANAGEMENT SYSTEMS AND CONTROLS, ADMINISTRATIVE STANDARDS AND
PROCEDURES, THE EVALUATION OF THEIR ADEQUACY, AND THE PROMOTION OF THEIR
IMPROVEMENT IN TERMS OF THE EFFECTIVENESS AND THE ECONOMY OF THE FAA
PROGRAM PERFORMANCE. THE OMS IS HEADED BY A DIRECTOR, WHO SUPERVISES AN
EXECUTIVE STAFF AND FOUR OPERATING DIVISIONS, NAMELY: THE MANAGEMENT
ANALYSIS DIVISION, THE DATA SYSTEMS DIVISION, THE INFORMATION AND
STATISTICS DIVISION, AND THE SYSTEMS SUPPORT DIVISION. THE MANAGEMENT
ANALYSIS DIVISION IS RESPONSIBLE FOR ORGANIZATIONAL PLANNING, REVIEW,
APPROVAL AND DOCUMENTATION; MANAGEMENT DEVELOPMENT; MANAGEMENT
ENGINEERING AND MANAGEMENT SYSTEMS METHODOLOGY AND APPLICATIONS; AN
AGENCY MANAGEMENT IMPROVEMENT PROGRAM; AND AN AGENCY STAFFING STANDARDS
PROGRAM. IT DEVELOPS AND RECOMMENDS AGENCY POLICIES, STANDARDS,
SYSTEMS, PROCEDURES, AND PROGRAM PLANS. THE DATA SYSTEMS DIVISION IS
RESPONSIBLE FOR AUTOMATED DATA SYSTEMS DEVELOPMENT AND AUTOMATIC DATA
PROCESSING, AND ESTABLISHES LONG-RANGE PLANS FOR FUTURE DEVELOPMENT OF
DATA SYSTEMS. IT DEVELOPS, EVALUATES AND REVIEWS PROPOSED FAA DATA
PROCESSING, AND INFORMATION REPORTING SYSTEMS, AND ADMINISTERS AN
AGENCY-WIDE PROGRAM FOR THE DEVELOPMENT OF STANDARD DATA CLASSIFICATION
AND CODING STRUCTURES FOR COMMON USE. THE FUNCTIONS OF THE INFORMATION
AND STATISTICS DIVISION PERTAIN TO AVIATION STATISTICS AND AGENCY
MANAGEMENT INFORMATION AND STATISTICS. IT DEVELOPS AND ADMINISTERS
PROGRAMS AND SYSTEMS FOR THE VALIDATION, CORRELATION, ANALYSES, AND
TIMELY PRESENTATION AND ISSUANCE OF MANAGEMENT INFORMATION AND
STATISTICS. THE SYSTEM SUPPORT DIVISION HAS RESPONSIBILITY FOR
STANDARDS AND PROCEDURES FOR AGENCY DIRECTIVES, RECORDS, REPORTS, AND
OTHER PAPERWORK MANAGEMENT PROGRAMS; THE APPLICATION OF MODERN
AUDIO-VISUAL TECHNOLOGY TO AGENCY PROGRAMS; AND LIBRARY AND PRINTING
MANAGEMENT. IT PROVIDES EDITORIAL, GRAPHICS, AND PUBLISHING SERVICES TO
HEADQUARTERS.
THE RECORD DISCLOSES THAT THE OMS FREQUENTLY PERFORMS STUDIES IN
COLLABORATION WITH THE VARIOUS OTHER HEADQUARTERS' DIVISIONS. AS A
RESULT, THERE IS A CLOSE FUNCTIONAL AND ADMINISTRATIVE RELATIONSHIP
AMONG BOTH PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE SEVERAL
COMPONENTS WITHIN THE OMS AS WELL AS WITH OTHER EMPLOYEES THROUGHOUT THE
HEADQUARTERS. THUS, WHERE MORE THAN ONE HEADQUARTERS' OFFICE MAY BE
INVOLVED IN A PARTICULAR STUDY, A TEAM EFFORT INVOLVING OMS AND OTHER
HEADQUARTERS' EMPLOYEES OFTEN IS REQUIRED AND, OCCASIONALLY, AN OMS
EMPLOYEE MEMBER OF THE TEAM MAY ACT AS THE TEAM LEADER. FURTHER, THERE
IS SUBSTANTIAL CONTACT ON A DAILY BASIS BETWEEN THE OMS EMPLOYEES AND
THOSE OF THE OTHER DIVISIONS THROUGHOUT HEADQUARTERS. THE RECORD
REVEALS THAT THE OMS EMPLOYEES, FOR THE MOST PART, WORK DIRECTLY UNDER
THEIR OWN COMPONENT SUPERVISORS; HOWEVER, THERE ARE TIMES WHEN,
DEPENDING UPON THEIR WORK LOCATIONS, THEY WORK UNDER THE SUPERVISION OF
A SUPERVISOR AT THE WORK SITE WHO IS NOT AN OMS EMPLOYEE. ALTHOUGH
THERE ARE MANY VARIED JOB CLASSIFICATIONS WITHIN THE OMS, WITH THE
EXCEPTION OF THOSE RELATING TO EDITORIAL FUNCTIONS, ALL OTHERS ARE
DUPLICATED THROUGHOUT THE HEADQUARTERS. MOREOVER, THE RECORD INDICATES
THAT TRANSFER INTO AND OUT OF THE OMS, BY REASSIGNMENT AND PROMOTION, IS
NOT UNCOMMON.
THE RECORD DISCLOSES THAT THE OMS SHARES COMMON PERSONNEL POLICIES,
PRACTICES, AND PROCEDURES WITH OTHER HEADQUARTERS' DIVISIONS. THUS, THE
PERSONNEL OPERATIONS DIVISION WITHIN THE OFFICE OF PERSONNEL FURNISHES
ALL PERSONNEL SERVICES FOR HEADQUARTERS' EMPLOYEES, IMPLEMENTS PERSONNEL
POLICIES, AND ISSUES PROCEDURAL GUIDANCE. FURTHER, PERSONNEL
ACTIVITIES, SUCH AS RECRUITMENT, PLACEMENT, EMPLOYEE RELATIONS, AND
SERVICING OF PERSONNEL RECORDS, ARE CONDUCTED BY THE PERSONNEL
OPERATIONS DIVISION. WHILE THE CHIEF OF EACH DIVISION WITHIN THE OMS
HAS THE AUTHORITY TO SELECT EMPLOYEES FOR HIS DIVISION, THE RECORD
REVEALS THAT SUCH AUTHORITY IS SUBJECT TO THE APPROVAL OF THE PERSONNEL
OPERATIONS DIVISION. THE EVIDENCE ESTABLISHES THAT FAA HEADQUARTERS
COMPONENTS OPERATE UNDER THE SAME MERIT PROMOTION PLAN, AND JOB
VACANCIES ARE POSTED ON A HEADQUARTERS-WIDE BASIS. /3/ SIMILARLY, THE
REDUCTION-IN-FORCE PROCEDURE IS HEADQUARTERS-WIDE. EMPLOYEES OF THE OMS
SHARE COMMON PARKING, CAFETERIA, REST ROOMS, LIBRARIES, AND CREDIT UNION
FACILITIES WITH THE OTHER HEADQUARTERS' EMPLOYEES, ARE SUBJECT TO THE
SAME CONDITIONS OF EMPLOYMENT AND ENJOY THE SAME FRINGE BENEFITS.
THE RECORD DISCLOSES ALSO THAT THE HEADQUARTERS' LABOR-MANAGEMENT
RELATIONS ARE HANDLED BY THE EMPLOYEE-MANAGEMENT RELATIONS BRANCH OF THE
PERSONNEL OPERATIONS DIVISION WHICH ADMINISTERS LABOR RELATIONS POLICIES
AND PROGRAMS, PROVIDES LABOR RELATIONS TECHNICAL GUIDANCE, AND ASSISTS
IN THE NEGOTIATION OF AGREEMENTS. HOWEVER, AUTHORITY TO NEGOTIATE AND
SIGN A NEGOTIATED AGREEMENT HAS BEEN DELEGATED TO OFFICE AND SERVICE
HEADS.
BASED ON THE FOREGOING, I FIND THAT THE OMS EMPLOYEES DO NOT POSSESS
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT
FROM THE OTHER EMPLOYEES EMPLOYED AT FAA HEADQUARTERS. THUS, THE RECORD
REVEALS THAT THERE ARE CLOSE WORKING RELATIONSHIPS BETWEEN OMS EMPLOYEES
AND OTHER HEADQUARTERS' EMPLOYEES AND THAT THE SKILLS AND JOB
CLASSIFICATIONS OF THE OMS EMPLOYEES ARE, FOR THE MOST PART, NOT UNIQUE
TO THAT PARTICULAR COMPONENT. ADDITIONALLY, ALL COMPONENTS OF THE
HEADQUARTERS OPERATE UNDER THE CENTRALIZED CONTROL OF THE ADMINISTRATOR
AND ARE SERVICED BY THE CENTRAL PERSONNEL OPERATIONS OFFICE. IN THIS
CONNECTION, IT WAS NOTED THAT THE AREA OF CONSIDERATION FOR PROMOTIONS
AND REDUCTION-IN-FORCE ACTIONS IS, IN MOST INSTANCES, HEADQUARTERS-WIDE
AND THAT ALL EMPLOYEES OF THE FAA HEADQUARTERS SHARE THE SAME FACILITIES
AND HAVE THE SAME FRINGE BENEFITS AND GRIEVANCE PROCEDURES. MOREOVER,
HEADQUARTERS LABOR RELATIONS MATTERS ARE HANDLED CENTRALLY AT THE
ACTIVITY LEVEL. UNDER THESE CIRCUMSTANCES, I FIND THAT THE UNIT
PETITIONED FOR IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION AND THAT SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /4/ ACCORDINGLY, I SHALL
ORDER THAT THE PETITION HEREIN BE DISMISSED. /5/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 22-5048(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 20, 1974
/1/ THE RECORD REVEALS THAT THERE IS NO HISTORY OF BARGAINING WITH
RESPECT TO THE EMPLOYEES IN THE CLAIMED UNIT. HOWEVER, THE RECORD
DISCLOSES THAT THERE ARE THREE EXCLUSIVE UNITS WITHIN THE HEADQUARTERS
AS WELL AS SEVEN EXCLUSIVE UNITS WITHIN THE WASHINGTON, D.C.
METROPOLITAN AREA WHICH ARE VIEWED BY THE ACTIVITY AS FIELD OPERATIONS.
/2/ THESE COMPONENTS INCLUDE ALSO THE OFFICE OF PERSONNEL.
/3/ IN THIS REGARD, THE EVIDENCE ESTABLISHES THAT FOR CLASSIFICATIONS
OF GS-12 AND BELOW, THE AREA OF CONSIDERATION MAY BE RESTRICTED TO THE
PRINCIPAL ORGANIZATIONAL SEGMENT.
/4/ CF. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW), HEALTH
SERVICES AND MENTAL HEALTH ADMINISTRATION (HSMHA), MATERNAL AND CHILD
HEALTH SERVICES AND FEDERAL HEALTH PROGRAMS SERVICE, A/SLMR NO. 192.
/5/ IN VIEW OF THIS DISPOSITION, IT WAS CONSIDERED UNNECESSARY TO
DECIDE THE ELIGIBILITY QUESTION RAISED WITH RESPECT TO THE SECRETARIES
OF THE DIVISION CHIEFS OF THE OMS.
4 A/SLMR 398; P. 378; CASE NO. 63-4786(RO); JUNE 20, 1974.
DEPARTMENT OF DEFENSE,
U.S. ARMY,
U.S. ARMY COMMUNICATIONS COMMAND AGENCY,
FORT SAM HOUSTON, TEXAS
A/SLMR NO. 398
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 28
(NFFE) SOUGHT AN ELECTION IN A UNIT OF ALL EMPLOYEES OF THE U.S. ARMY
COMMUNICATIONS COMMAND AGENCY (USACC) AT FORT SAM HOUSTON, TEXAS. THE
THREE USACC DIRECTORATES LOCATED AT FORT SAM HOUSTON, WHICH MAKE UP THE
PETITIONED FOR UNIT, WERE FORMED AS THE RESULT OF A REORGANIZATION WHICH
PLACED ALL COMMUNICATIONS RELATED ACTIVITIES UNDER THE SAME MAJOR
COMMAND LOCATED AT FORT HUACHUCA, ARIZONA. THE THREE USACC DIRECTORATES
IN THE CLAIMED UNIT ARE THE U.S. ARMY COMMUNICATIONS COMMAND AGENCY,
FORT SAM HOUSTON (USACC-FSH); THE U.S. ARMY COMMUNICATIONS ELECTRONICS
ENGINEERING INSTALLATION AGENCY - CONUS REGIONAL FIELD OFFICE (CENTRAL),
(CEEIA); AND THE U.S. ARMY COMMUNICATIONS COMMAND AGENCY - HEALTH
SERVICES COMMAND (USACC-HSC). THE USACC-FSH AND THE CEEIA WERE FORMED
OUT OF EXISTING UNITS LOCATED IN THE HEADQUARTERS, FIFTH U.S. ARMY AND
THE HEADQUARTERS, FORT SAM HOUSTON, BUT THE USACC-HSC WAS NOT IN
EXISTENCE PRIOR TO THE REORGANIZATION. THE HEADS OF ALL THREE OF THE
DIRECTORATES DESIGNATED THE FORT SAM HOUSTON CIVILIAN PERSONNEL OFFICE
AS THEIR AGENT FOR PERSONNEL AND LABOR RELATIONS MATTERS.
THE ASSISTANT SECRETARY CONCLUDED THAT THE UNIT SOUGHT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
IN THIS REGARD, HE NOTED THAT THERE IS NO INDIVIDUAL WHO HAS OVERALL
COMMAND RESPONSIBILITIES FOR USACC ACTIVITIES AT FORT SAM HOUSTON; THE
THREE DIRECTORATES INVOLVED REPORT UPWARD TO THE USACC, FORT HUACHUCA,
THROUGH SEPARATE INTERMEDIATE CHANNELS; THERE IS NO EVIDENCE OF
INTEGRATION OF THE OPERATIONS OF THE THREE DIRECTORATES AT FORT SAM
HOUSTON; THERE IS NO EVIDENCE THAT EITHER INTERCHANGE OR TRANSFERS ARE
LIMITED TO EMPLOYEES IN THE CLAIMED UNIT; THE AREA OF CONSIDERATION FOR
PROMOTIONS IS BASEWIDE; THE COMPETITIVE AREA FOR REDUCTION-IN-FORCE
ACTIONS IS WITHIN AN INDIVIDUAL DIRECTORATE RATHER THAN AMONG THE
EMPLOYEES OF THE THREE DIRECTORATES; AND GRIEVANCES ARE PROCESSED
THROUGH INDIVIDUAL DIRECTORATE CHANNELS TO THE USACC, FORT HUACHUCA.
UNDER THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT THE
EMPLOYEES OF THE THREE DIRECTORATES AT FORT SAM HOUSTON DID NOT SHARE A
SEPARATE UNIT AND IDENTIFIABLE COMMUNITY OF INTEREST WITH EACH OTHER,
AND THAT SUCH A UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF OPERATIONS. ACCORDINGLY, HE ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF DEFENSE,
U.S. ARMY,
U.S. ARMY COMMUNICATIONS COMMAND AGENCY,
FORT SAM HOUSTON, TEXAS
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 28
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROBERT D.
VICTORIA. 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, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
28, HEREIN CALLED NFFE, SEEKS AN ELECTION IN A UNIT OF ALL GENERAL
SCHEDULE AND WAGE GRADE PROFESSIONAL AND NONPROFESSIONAL, NONSUPERVISORY
EMPLOYEES OF THE U.S. ARMY COMMUNICATIONS COMMAND WITH DUTY STATIONS AT
FORT SAM HOUSTON AND WHICH ENCOMPASSES: (A) THE U.S. ARMY
COMMUNICATIONS COMMAND AGENCY, FORT SAM HOUSTON; (B) THE U.S. ARMY
COMMUNICATIONS-ELECTRONICS ENGINEERING INSTALLATION AGENCY - CONUS
REGIONAL FIELD OFFICE (CENTRAL); AND (C) THE U.S. ARMY COMMUNICATIONS
COMMAND AGENCY, HEALTH SERVICES COMMAND. /1/ THE ACTIVITY AND THE NFFE
ARE IN AGREEMENT THAT THE PETITIONED FOR UNIT IS APPROPRIATE. HOWEVER,
THE MATTER WAS SENT TO HEARING BECAUSE, IN THE ASSISTANT REGIONAL
DIRECTOR'S VIEW, THE PETITION PRESENTED ISSUES CONCERNING WHETHER THERE
WAS A COMMUNITY OF INTEREST AMONG THE EMPLOYEES IN THE PETITIONED FOR
UNIT BECAUSE OF THE EFFECTS OF A RECENT ARMY-WIDE REORGANIZATION AND
WHETHER THE PETITIONED FOR UNIT WAS, IN PART, A "CARVE-OUT" FROM
EXISTING UNITS REPRESENTED BY THE NFFE AND BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2154, HEREIN CALLED THE AFGE. /2/
THE RECORD REVEALS THAT LOCATED AT FORT SAM HOUSTON ARE TWO PRINCIPAL
ARMY ACTIVITIES, ALONG WITH A NUMBER OF OTHER ORGANIZATIONS, INCLUDING
THE THREE DIRECTORATES INVOLVED IN THE PETITIONED FOR UNIT. THE FIRST
OF THE PRINCIPAL ACTIVITIES IS HEADQUARTERS, FIFTH, U.S. ARMY, IN WHICH
THE NFFE WAS CERTIFIED UNDER EXECUTIVE ORDER 10988 FOR ESSENTIALLY AN
ACTIVITY-WIDE UNIT OF ALL NONPROFESSIONAL EMPLOYEES. THE OTHER
PRINCIPAL ACTIVITY IS THE HEADQUARTERS, FORT SAM HOUSTON, IN WHICH THE
AFGE WAS CERTIFIED UNDER EXECUTIVE ORDER 10988 FOR ESSENTIALLY AN
ACTIVITY-WIDE UNIT OF ALL NONPROFESSIONAL EMPLOYEES. THE RECORD
INDICATES THAT, AT PRESENT, THERE ARE NEGOTIATED AGREEMENTS COVERING
BOTH OF THE ABOVE-DESCRIBED UNITS.
THE RECORD REFLECTS THAT, PURSUANT TO A MAJOR ARMY-WIDE
REORGANIZATION, ENTITLED "OPERATION STEADFAST," MOST OF WHICH WAS
EFFECTIVE ON JULY 1, 1973, ALL COMMUNICATIONS RELATED ACTIVITIES WERE
PLACED UNDER ONE CENTRAL COMMAND, THE UNITED STATES ARMY STRATEGIC
COMMUNICATIONS COMMAND, WHICH SUBSEQUENTLY WAS DESIGNATED AS THE UNITED
STATES ARMY COMMUNICATIONS COMMAND, HEREINAFTER REFERRED TO AS USACC,
WITH HEADQUARTERS LOCATED AT FORT HUACHUCA, ARIZONA. THE CLAIMED UNIT
CONSISTS OF ALL OF THE EMPLOYEES OF THE THREE COMMUNICATIONS RELATED
DIRECTORATES LOCATED AT FORT SAM HOUSTON WHICH REPORT UPWARDS TO THE
USACC, FORT HUACHUCA.
THE FIRST OF THE THREE USACC DIRECTORATES COVERED BY THE SUBJECT
PETITION IS THE U.S. ARMY COMMUNICATION'S COMMAND AGENCY, FORT SAM
HOUSTON, HEREIN CALLED USACC-FSH. THE RECORD REVEALS THAT THIS
DIRECTORATE WAS FORMED, PURSUANT TO A TWO STEP PROCEDURE, BY COMBINING
ADMINISTRATIVELY THE TELECOMMUNICATIONS CENTER DIVISION OF HEADQUARTERS,
FIFTH U.S. ARMY AND THE COMMUNICATIONS AND ELECTRONICS DIVISION OF
HEADQUARTERS, FORT SAM HOUSTON. THUS, ON FEBRUARY 4, 1973, THE
TELECOMMUNICATIONS CENTER DIVISION OF HEADQUARTERS, FIFTH U.S. ARMY,
WHOSE EMPLOYEES WERE INCLUDED IN THE UNIT REPRESENTED BY THE NFFE, WERE
PLACED UNDER THE ADMINISTRATIVE COMMAND OF THE COMMUNICATIONS AND
ELECTRONICS DIVISION OF HEADQUARTERS, FORT SAM HOUSTON, WHOSE EMPLOYEES
WERE IN THE UNIT REPRESENTED EXCLUSIVELY BY THE AFGE. THEREAFTER, ON
JULY 1, 1973, THE COMMUNICATIONS AND ELECTRONICS DIVISION OF
HEADQUARTERS, FORT SAM HOUSTON, INCLUDING THE TELECOMMUNICATIONS CENTER
DIVISION, WAS TAKEN OUT FROM UNDER THE JURISDICTION OF THE FORT SAM
HOUSTON COMMANDING OFFICER AND PLACED UNDER THE MAJOR COMMAND
JURISDICTION OF THE USACC. THE MISSION, IMMEDIATE SUPERVISOR, JOB
FUNCTIONS AND WORK LOCATIONS OF THE EMPLOYEES OF THE USACC-FSH HAVE
REMAINED ESSENTIALLY THE SAME AS PRIOR TO THE REORGANIZATION, EXCEPT
THAT THEY ARE NO LONGER EMPLOYEES OF HEADQUARTERS, FIFTH U.S. ARMY AND
HEADQUARTERS, FORT SAM HOUSTON. PRIOR TO THE REORGANIZATION, THE
DIRECTOR OF THE USACC-FSH, WAS THE CHIEF OF THE COMMUNICATIONS AND
ELECTRONICS DIVISION UNDER THE HEADQUARTERS, FORT SAM HOUSTON, TO WHICH
HE REPORTED. AS A RESULT OF THE REORGANIZATION, THE DIRECTOR OF THE
USACC-FSH REPORTS THROUGH FORT MCPHERSON, GEORGIA, TO THE USACC
HEADQUARTERS AT FORT HUACHUCA. MOREOVER, AS THE HEAD OF A TENANT
ACTIVITY, HE NOW POSSESSES AUTHORITY OVER PERSONNEL MATTERS OF EMPLOYEES
IN USACC-FSH, ALTHOUGH, IN THIS REGARD, THE RECORD REVEALS THAT HE HAS
DESIGNATED THE FORT SAM HOUSTON CIVILIAN PERSONNEL OFFICE AS HIS AGENT
FOR PERSONNEL AND LABOR RELATED MATTERS.
THE SECOND USACC DIRECTORATE COVERED BY THE INSTANT PETITION IS THE
U.S. ARMY COMMUNICATIONS ELECTRONICS ENGINEERING INSTALLATION AGENCY -
CONUS REGIONAL FIELD OFFICE (CENTRAL), HEREIN CALLED CEEIA. PRIOR TO
THE REORGANIZATION, THE CEEIA WAS DESIGNATED AS THE TELECOMMUNICATIONS
SYSTEM DIVISION IN THE HEADQUARTERS, FIFTH U.S. ARMY AND ITS EMPLOYEES
WERE PART OF THE UNIT REPRESENTED BY THE NFFE. THE PRESENT DIRECTOR OF
THE CEEIA WAS THE CHIEF OF THE TELECOMMUNICATIONS SYSTEM DIVISION PRIOR
TO THE REORGANIZATION. ALTHOUGH THE RECORD REFLECTS THAT, SUBSEQUENT TO
THE REORGANIZATION, THERE WAS SOME CHANGE REGARDING THE ACTIVITIES
SERVICED BY THE CEEIA, THE EMPLOYEES OF THE CEEIA CONTINUE TO WORK AT
THE SAME WORK LOCATIONS AND PERFORM THE SAME BASIC MISSION OF
ENGINEERING, INSTALLATION, PLANNING, AND PREPARING FUNDS ESTIMATES WITH
RESPECT TO COMMUNICATIONS SERVICES, AS PRIOR TO THE REORGANIZATION. THE
RECORD REVEALS THAT AS A RESULT OF THE REORGANIZATION THE CEEIA DIRECTOR
REPORTS THROUGH FORT RITCHIE, MARYLAND, TO THE USACC AT FORT HUACHUCA.
AS IN THE CASE OF THE DIRECTOR OF THE USACC-FSH, THE CHIEF OF THE
TELECOMMUNICATIONS SYSTEM DIVISION DID NOT, PRIOR TO THE REORGANIZATION,
HAVE THE FULL AUTHORITY OVER CIVILIAN PERSONNEL MATTERS WHICH HE NOW HAS
AS THE DIRECTOR OF A TENANT ACTIVITY. HOWEVER, IN THIS REGARD, AS WITH
HIS COUNTERPART IN THE USACC-FSH, THE DIRECTOR OF THE CEEIA HAS
DESIGNATED THE FORT SAM HOUSTON CIVILIAN PERSONNEL OFFICE AS HIS AGENT
FOR CIVILIAN PERSONNEL SERVICES.
THE THIRD USACC DIRECTORATE COVERED BY THE NFFE'S PETITION IS THE
U.S. ARMY COMMUNICATIONS COMMAND AGENCY - HEALTH SERVICES COMMAND,
HEREIN CALLED USACC-HSC. THIS DIRECTORATE IS RESPONSIBLE FOR PROVIDING
COMMUNICATION SERVICES TO CERTAIN HEALTH SERVICES COMMAND INSTALLATIONS
WHICH ARE NOT LOCATED AT FORT SAM HOUSTON AND FOR PROVIDING STAFF
SERVICES TO HEADQUARTERS, HEALTH SERVICES COMMAND, WHICH IS LOCATED AT
FORT SAM HOUSTON. THE USACC-HSC WAS NOT IN EXISTENCE PRIOR TO THE
REORGANIZATION OF JULY 1, 1973. THE RECORD REFLECTS THAT, AT THE TIME
OF THE HEARING IN THIS MATTER, THE COLONEL WHO SERVES AS THE DIRECTOR OF
THE USACC-HSC AND HIS SECRETARY WERE THE ONLY INDIVIDUALS EMPLOYED IN
THIS DIRECTORATE. AS IN THE CASE OF THE OTHER TWO DIRECTORATES, THE
DIRECTOR OF THE USACC-HSC HAS DESIGNATED THE FORT SAM HOUSTON CIVILIAN
PERSONNEL OFFICE AS HIS AGENT FOR PERSONNEL SERVICES.
THE RECORD REVEALS THAT THE EMPLOYEES OF THE DIRECTORATES COVERED BY
THE INSTANT PETITION ARE LOCATED THROUGHOUT THE FORT SAN HOUSTON COMPLEX
AND, FOR THE MOST PART, WORK OUT OF THE SAME BUILDINGS AS PRIOR TO THE
REORGANIZATION. THERE IS NO EVIDENCE OF INTERCHANGE OR TRANSFERS AMONG
THE EMPLOYEES IN THESE DIRECTORATES. FURTHER, THE EMPLOYEES OF THE
THREE DIRECTORATES HAVE AVAILABLE ALL OF THE SAME FACILITIES, SUCH AS
HEALTH CLINICS, CAFETERIAS, PAYMENT CENTERS, AND CREDIT UNIONS, AS THE
EMPLOYEES OF HEADQUARTERS, FIFTH U.S. ARMY AND HEADQUARTERS, FORT SAM
HOUSTON. THE RECORD REVEALS ALSO THAT THE PERSONNEL POLICIES AND
PRACTICES APPLICABLE TO THE EMPLOYEES IN THE CLAIMED UNIT ARE
ESSENTIALLY THE SAME AS BEFORE THE REORGANIZATION BECAUSE, AS NOTED
ABOVE, THE DIRECTORS OF EACH OF THE THREE USACC DIRECTORATES AT FORT SAM
HOUSTON HAVE DESIGNATED THE FORT SAM HOUSTON CIVILIAN PERSONNEL OFFICE
AS THEIR REPRESENTATIVE FOR PERSONNEL AND LABOR RELATIONS MATTERS.
MOREOVER, NO PERSONNEL PROGRAMS OR LABOR RELATIONS MATTERS ARE UNIQUELY
APPLICABLE TO EMPLOYEES IN THE CLAIMED UNIT, I.E., THE THREE USACC
DIRECTORATES LOCATED AT FORT SAM HOUSTON. IN THIS REGARD, THE EVIDENCE
ESTABLISHES THAT THE AREA OF CONSIDERATION FOR JOB OPPORTUNITIES IS
BASEWIDE FOR ALL THE EMPLOYEES LOCATED AT FORT SAM HOUSTON, INCLUDING
THOSE IN THE THREE DIRECTORATES WHICH COMPOSES THE CLAIMED UNIT. THE
EVIDENCE FURTHER INDICATES THAT THE COMPETITIVE AREA FOR
REDUCTION-IN-FORCE ACTIONS HAS BEEN SPECIFIED, IN AGREEMENTS EXECUTED BY
THE CIVILIAN PERSONNEL OFFICE AND THE HEAD OF EACH DIRECTORATE, AS
WITHIN EACH INDIVIDUAL DIRECTORATE OF THE USACC AT FORT SAM HOUSTON.
WITH RESPECT TO GRIEVANCE ACTIONS UNDER THE AGENCY GRIEVANCE PROCEDURE,
THE FIRST TWO STEPS REMAIN THE SAME AS BEFORE THE REORGANIZATION BUT AT
THE THIRD STEP, ALTHOUGH HANDLED ADMINISTRATIVELY BY THE FORT SAM
HOUSTON CIVILIAN PERSONNEL OFFICE, THE GRIEVANCE WOULD GO TO THE HEAD OF
THE INDIVIDUAL DIRECTORATE FOR A DECISION RATHER THAN TO THE COMMANDING
OFFICER OF THE FIFTH U.S. ARMY OR OF FORT SAM HOUSTON, AS WAS THE CASE
PRIOR TO THE REORGANIZATION. FURTHER, WHEN A GRIEVANCE IS APPEALED
ABOVE THE THIRD STEP BY AN EMPLOYEE OF ONE OF THE USACC DIRECTORATES AT
FORT SAM HOUSTON, IT NOW GOES THROUGH RESPECTIVE DIRECTORATE CHANNELS TO
THE USACC AT FORT HUACHUCA.
BASED ON THE FOREGOING, I FIND THAT THE UNIT SOUGHT BY THE NFFE IS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. THUS, THE RECORD REFLECTS THAT WHILE THE THREE USACC
DIRECTORATES AT FORT SAM HOUSTON WHICH ARE COVERED BY THE INSTANT
PETITION ARE UNDER THE SAME MAJOR COMMAND, LOCATED AT FORT HUACHUCA, AT
FORT SAM HOUSTON EACH IS UNDER AN INDIVIDUAL DIRECTOR WHO REPORTS
UPWARDS THROUGH SEPARATE INTERMEDIATE CHANNELS TO THE USACC
HEADQUARTERS, AND THERE IS NO INDIVIDUAL IN OVERALL COMMAND OF THE USACC
RELATED ACTIVITIES AT FORT SAM HOUSTON. MOREOVER, WHILE THE EMPLOYEES
OF THE THREE DIRECTORATES SHARE THE SAME OVERALL MISSION INVOLVING
COMMUNICATIONS RELATED ACTIVITIES, THERE IS NO EVIDENCE THAT THERE IS
ANY INTEGRATION OF THEIR OPERATIONS, OR THAT INTERCHANGE OR TRANSFERS
ARE LIMITED TO EMPLOYEES IN THE CLAIMED UNIT. FURTHER, THE AREA OF
CONSIDERATION FOR PROMOTIONS IS BASE-WIDE, AND THE COMPETITIVE AREA FOR
ANY REDUCTIONS-IN-FORCE INVOLVING EMPLOYEES OF THE DIRECTORATES IS
WITHIN AN INDIVIDUAL DIRECTORATE RATHER THAN AMONG THE EMPLOYEES IN THE
THREE DIRECTORATES IN THE CLAIMED UNIT. FINALLY, THE EVIDENCE
ESTABLISHES THAT GRIEVANCES ARE PROCESSED THROUGH INDIVIDUAL DIRECTORATE
CHANNELS TO THE USACC AT FORT HUACHUCA.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE
THREE DIRECTORATES OF THE USACC AT FORT SAM HOUSTON DO NOT SHARE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST WITH EACH OTHER, AND THAT SUCH A
UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF OPERATIONS.
ACCORDINGLY, I SHALL ORDER THAT THE NFFE'S PETITION HEREIN BE DISMISSED.
/3/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 63-4786(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 20, 1974
/1/ THE UNIT INCLUSIONS APPEAR AS AMENDED AT THE HEARING.
/2/ THE AFGE DID NOT INTERVENE IN THE INSTANT PROCEEDING.
/3/ CF. GENERAL SERVICES ADMINISTRATION, PBS, FSS, ADTS, FRESNO,
CALIFORNIA, A/SLMR NO. 293.
4 A/SLMR 397; P. 371; CASE NO. 31-6165; JUNE 20, 1974.
AIR NATIONAL GUARD BUREAU,
STATE OF VERMONT
A/SLMR NO. 397
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3002
(COMPLAINANT) ALLEGING THAT THE AIR NATIONAL GUARD BUREAU, STATE OF
VERMONT (RESPONDENT) FAILED AND REFUSED IN GOOD FAITH IN VIOLATION OF
SECTION 19(A)(1) AND (6) OF THE ORDER THROUGH ITS ACTIONS IN: (1)
ENGAGING IN DILATORY TACTICS WITH RESPECT TO SCHEDULING A MEETING WITH
THE COMPLAINANT TO AGREE UPON THE GROUND RULES FOR BARGAINING; AND (2)
FAILING TO PROVIDE ITS BARGAINING REPRESENTATIVE WITH SUFFICIENT
AUTHORITY AT CERTAIN MEETINGS ON CHANGES DIRECTED BY THE NATIONAL GUARD
BUREAU.
WITH RESPECT TO THE ALLEGATION THAT THE RESPONDENT ENGAGED IN
DILATORY TACTICS IN SCHEDULING A MEETING CONCERNING GROUND RULES FOR
NEGOTIATIONS, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RECORD FAILED
TO ESTABLISH THAT THE RESPONDENT ENGAGED IN DILATORY TACTICS OR UNDULY
DELAYED SETTING UP MEETINGS WITH THE COMPLAINANT IN THIS REGARD. HE
NOTED THAT THE COMPLAINANT'S JUNE 14, 1972, LETTER REQUESTED A 60-DAY
EXTENSION OF THE EXISTING AGREEMENT DID NOT SUGGEST DATES OR TIMES FOR
NEGOTIATIONS AND DID NOT EXPRESS ANY SENSE OF URGENCY FOR AN EARLY
MEETING. HE NOTED ALSO THAT NO EVIDENCE WAS PRESENTED TO INDICATE THAT
THE RESPONDENT'S SUGGESTED DATE OF JULY 12, 1972, FOR NEGOTIATION OF THE
GROUND RULES WAS UNACCEPTABLE TO THE COMPLAINANT, NOR WAS THERE ANY
EVIDENCE PRESENTED TO SHOW THAT THE COMPLAINANT EITHER PROTESTED
CONCERNING THE RESPONDENT'S POSTPONEMENT OF THE JULY 12 MEETING TO JULY
19, 1972, OR DEMANDED THAT AN EARLIER DATE BE SET FOR THE MEETING. THE
ADMINISTRATIVE LAW JUDGE FOUND, ADDITIONALLY, THAT AT THE JULY 19
MEETING, THERE WAS PROMPT AGREEMENT BETWEEN THE PARTIES CONCERNING THE
GROUND RULES FOR NEGOTIATIONS. UNDER ALL OF THESE CIRCUMSTANCES, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RECORD FAILED TO ESTABLISH
THAT THE RESPONDENT ENGAGED IN ANY DILATORY TACTICS CONCERNING SETTING
UP THE INITIAL MEETING OR ANY SUBSEQUENT MEETINGS.
THE ADMINISTRATIVE LAW JUDGE FOUND ALSO THAT THE RESPONDENT HAD NOT
VIOLATED THE ORDER BY FAILING TO PROVIDE ITS CHIEF NEGOTIATOR WITH
SUFFICIENT BARGAINING AUTHORITY AT THE FEBRUARY 6 AND 7 MEETINGS WHICH
WERE HELD AFTER THE NEGOTIATED AGREEMENT OF AUGUST HAD BEEN RETURNED BY
THE NATIONAL GUARD BUREAU TO THE ACTIVITY FOR "CHANGES . . . REQUIRED IN
ORDER TO BRING THE AGREEMENT IN CONFORMITY WITH APPLICABLE LAWS,
REGULATIONS, AND EXECUTIVE ORDER 11491 . . . " IN THIS CONNECTION, THE
ADMINISTRATIVE LAW JUDGE NOTED THAT THE COMPLAINANT NEITHER ALLEGED THAT
THE RESPONDENT'S CHIEF NEGOTIATOR HAD INSUFFICIENT BARGAINING AUTHORITY
DURING THE EARLIER JULY 19, AUGUST 22, OR AUGUST 23 MEETINGS NOR THAT
THE NATIONAL GUARD BUREAU VIOLATED THE ORDER BY DISAPPROVING THE
AGREEMENT SIGNED ON AUGUST 25, OR BY DIRECTING THE CHANGES. WITH
RESPECT TO THE FEBRUARY 6 AND 7 MEETINGS, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THERE WAS AN ABSENCE OF EVIDENCE THAT THE RESPONDENT'S
CHIEF NEGOTIATOR DID NOT HAVE SUFFICIENT AUTHORITY TO NEGOTIATE ON
BEHALF OF THE RESPONDENT. IN THIS CONNECTION, HE NOTED THAT ALTHOUGH
THE NATIONAL GUARD BUREAU WAS THE APPROVING AUTHORITY UNDER SECTION 15
OF THE ORDER, THERE WAS NO REQUIREMENT IN THE ORDER THAT THE
RESPONDENT'S CHIEF NEGOTIATOR HAVE AUTHORITY TO NEGOTIATE ON BEHALF OF
THE NATIONAL GUARD BUREAU OR THAT THE NATIONAL GUARD BUREAU HAD TO BE
REPRESENTED AT SUCH NEGOTIATIONS. RATHER, IN THE ADMINISTRATIVE LAW
JUDGE'S VIEW, THE RESPONDENT'S CHIEF NEGOTIATOR HAD TO HAVE ADEQUATE
AUTHORITY TO NEGOTIATE ON BEHALF OF THE RESPONDENT, WHICH HE DID, AND
THAT CALLS THE CHIEF NEGOTIATOR MADE TO THE NATIONAL GUARD BUREAU DURING
THE FEBRUARY 6 AND 7 NEGOTIATIONS MERELY CONSTITUTED AN AGREED UPON
PROCEDURE TO OBTAIN SECTION 15 APPROVAL OF THE MODIFIED CLAUSES BY THE
NATIONAL GUARD BUREAU AS THEY WERE RENEGOTIATED. UNDER ALL OF THESE
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE CONCLUDED, THEREFORE, THAT
THE RESPONDENT HAD NOT ENGAGED IN CONDUCT WHICH VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER AND, ACCORDINGLY, HE RECOMMENDED THAT THE
COMPLAINT BE DISMISSED.
UPON REVIEW OF THE ENTIRE RECORD IN THIS PROCEEDING, INCLUDING THE
ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATION AND THE
COMPLAINANT'S EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
AIR NATIONAL GUARD BUREAU,
STATE OF VERMONT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3002
ON MARCH 29, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
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 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 COMPLAINANT, I HEREBY ADOPT THE ADMINISTRATIVE
LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS, /2/ AND RECOMMENDATIONS.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 31-6165 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JUNE 20, 1974
/1/ ON PAGES 3 AND 6, RESPECTIVELY, OF THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATION HE INADVERTENTLY REFERS TO JULY 19, 1974,
RATHER THAN JULY 19, 1972; AND TO NOVEMBER 21, 1974, RATHER THAN
NOVEMBER 21, 1972. IN ADDITION, AT FOOTNOTE 7 OF HIS REPORT AND
RECOMMENDATION, THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY REFERS TO
"THE ACT" RATHER THAN THE ORDER. THESE INADVERTENT ERRORS ARE HEREBY
CORRECTED.
/2/ AT FOOTNOTE 14 OF HIS REPORT AND RECOMMENDATION, THE
ADMINISTRATIVE LAW JUDGE STATED THAT MODIFICATIONS IN THE NEGOTIATED
AGREEMENT WHICH THE NATIONAL GUARD BUREAU DIRECTED THE RESPONDENT TO
MAKE "WERE MERELY THE NATIONAL GUARD BUREAU'S SUGGESTIONS AS TO THOSE
MODIFICATIONS OF THE SUBMITTED AGREEMENT WHICH IT COULD STATE IN ADVANCE
IT WOULD APPROVE." I DISAGREE WITH THIS CONCLUSION OF THE ADMINISTRATIVE
LAW JUDGE. IN THIS CONNECTION, IT WAS NOTED THAT THE NATIONAL GUARD
BUREAU'S NOVEMBER 21, 1972, LETTER TO THE VERMONT ADJUTANT GENERAL
CONTAINED THE STATEMENT THAT". . . (A) REVIEW OF THE PROPOSED LABOR
AGREEMENT BETWEEN THE ADJUTANT GENERAL, STATE OF VERMONT, AND THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3002, REVEALS THAT
THE FOLLOWING CHANGES ARE REQUIRED IN ORDER TO BRING THE AGREEMENT INTO
CONFORMANCE WITH APPLICABLE LAWS, REGULATIONS, AND EXECUTIVE ORDER
11491, AS AMENDED, AND BEFORE THE AGREEMENT CAN BE APPROVED BY THE
AGENCY, (CHIEF, NATIONAL GUARD BUREAU)." HOWEVER, MY CONTRARY
INTERPRETATION OF THE FACTS IN THIS REGARD WAS NOT CONSIDERED TO ALTER
THE ULTIMATE DISPOSITION OF THE SUBJECT CASE.
IN THE MATTER OF
AIR NATIONAL GUARD BUREAU
STATE OF VERMONT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
LT. COL. RANDALL M. NYE
TECHNICIAN PERSONNEL OFFICER
AIR NATIONAL GUARD
CAMP JOHNSON
WINOOSKI, VERMONT
GUY COLLETTI
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
512 GALLIVAN BOULEVARD, SUITE 2
DORCHESTER, MASSACHUSETTS 02124
BEFORE: SAMUEL A. CHAITOVITZ
PURSUANT TO A COMPLAINT FILED MARCH 9, 1973, UNDER EXECUTIVE ORDER
11491, AS AMENDED, (HEREINAFTER CALLED THE ORDER) BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3002 (HEREINAFTER CALLED THE
COMPLAINANT OR THE UNION) AGAINST AIR NATIONAL GUARD, STATE OF VERMONT,
/1/ (HEREINAFTER CALLED THE ACTIVITY, VERMONT AIR NATIONAL GUARD OR THE
RESPONDENT) A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
ADMINISTRATOR FOR THE NEW YORK REGION ON JULY 6, 1973.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON OCTOBER
10, 1973, IN BURLINGTON, VERMONT. 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 PRESENTED ORAL
ARGUMENTS AND SUBMITTED BRIEFS.
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.
THE UNION HAS BEEN RECOGNIZED SINCE 1970 AS THE COLLECTIVE BARGAINING
REPRESENTATIVE OF A UNIT COMPOSED OF ALL NON-SUPERVISORY EMPLOYEES OF
THE VERMONT AIR NATIONAL GUARD. IN JULY OF 1970 THE UNION, ON BEHALF OF
THE ABOVE UNIT, ENTERED INTO A COLLECTIVE BARGAINING AGREEMENT WITH THE
ADJUTANT GENERAL, /2/ STATE OF VERMONT, WHICH AGREEMENT WAS TO EXPIRE ON
JULY 6, 1972. /3A/
APPARENTLY DURING THE LATTER PART OF MAY 1972, UNION PRESIDENT, OTIS
LIGHT, TELEPHONICALLY REQUESTED TO NEGOTIATE A NEW AGREEMENT. /3B/ IN
ANY EVENT BY LETTER DATED JUNE 14 THE UNION REQUESTED AN EXTENSION OF
THE COLLECTIVE BARGAINING AGREEMENT FOR 60 DAYS TO "ALLOW BOTH PARTIES
THE OPPORTUNITY TO NEGOTIATE AND AGREE TO A NEW CONTRACT IN THE SPIRIT
AND INTENT OF THE EXECUTIVE ORDER." THE ACTIVITY BY LETTER DATED JUNE
26, 1972, GRANTED THE REQUESTED EXTENSION OF THE CONTRACT. THIS LETTER
STATED FURTHER, "IN REGARDS TO NEGOTIATIONS FOR THE GROUND RULES, WE
REQUEST THIS BE HELD ON JULY 12, 1972, AT 10:00 HOURS, AT CAMP JOHNSON.
THIS DATE NECESSARY AS THE TECHNICIAN PERSONNEL OFFICER AND THE ADJUTANT
GENERAL ARE BOTH PERFORMING AT." /4/ THIS MEETING DATE WAS APPARENTLY
POSTPONED TO JULY 19, 1974, BECAUSE AN OPERATIONAL READINESS INSPECTION
OF THE VERMONT AIR NATIONAL GUARD, (HEREINAFTER CALLED ORI), WAS
SCHEDULED AND ACTUALLY CONDUCTED BETWEEN JULY 7 AND JULY 12.
REPRESENTATIVES OF THE UNION AND THE ACTIVITY /5/ MET ON JULY 19,
1972, AND AGREED UPON GROUND RULES AND AGREED TO MEET ON AUGUST 22 TO
NEGOTIATE A NEW CONTRACT. BY LETTER OF JULY 20 THE UNION SUBMITTED ITS
CONTRACT PROPOSALS TO THE ACTIVITY. THE ACTIVITY SUBMITTED ITS
COUNTER-PROPOSALS IN A LETTER DATED AUGUST 15, 1972. THE
REPRESENTATIVES OF THE UNION AND ACTIVITY MET ON AUGUST 22 AND 23 AND
SUCCESSFULLY NEGOTIATED AND REACHED AGREEMENT ON A COLLECTIVE BARGAINING
CONTRACT. THIS AGREEMENT WAS THEN SUBMITTED, PURSUANT TO SECTION 15 OF
THE ORDER, TO THE NATIONAL GUARD BUREAU IN WASHINGTON FOR APPROVAL. BY
LETTER DATED NOVEMBER 21, 1972, THE NATIONAL GUARD BUREAU ADVISED "THE
ADJUTANT GENERAL, STATE OF VERMONT" THAT
"A REVIEW OF THE PROPOSED LABOR AGREEMENT BETWEEN THE ADJUTANT
GENERAL, STATE OF VERMONT,
AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3002,
REVEALS THAT THE FOLLOWING
CHANGES ARE REQUIRED IN ORDER TO BRING THE AGREEMENT INTO CONFORMANCE
WITH APPLICABLE LAWS,
REGULATIONS, AND EXECUTIVE ORDER 11491, AS AMENDED, AND BEFORE THE
AGREEMENT CAN BE APPROVED
BY THE AGENCY, (CHIEF, NATIONAL GUARD BUREAU)."
THE LETTER THEN SET FORTH 41 SUCH CHANGES.
ON FEBRUARY 6 AND 7, 1973, THE UNION'S REPRESENTATIVES AND THE
ACTIVITY'S REPRESENTATIVES INCLUDING ITS SPOKESMAN COLONEL NYE, MET TO
RENEGOTIATE THE AGREEMENT. PRIOR TO THESE NEGOTIATIONS THE UNION ASKED
COLONEL NYE TO CONTACT THE NATIONAL GUARD BUREAU AND REQUEST A
REPRESENTATIVE OF THE NATIONAL GUARD BUREAU TO BE AVAILABLE FOR THESE
NEGOTIATIONS. COLONEL NYE RESPONDED THAT HE COULD NOT.
THE UNION CONTENDED, AT THESE MEETINGS, THAT MANY OF THE CHANGES
DIRECTED BY THE NATIONAL GUARD BUREAU WERE UNNECESSARY AND UNDESIRABLE
AND THAT THE NATIONAL GUARD BUREAU'S REFERENCES TO LAWS, REGULATIONS AND
THE ORDER WERE INACCURATE. COLONEL NYE IN MANY SPECIFIC INSTANCES
AGREED WITH THE UNION AND AGREED THAT CERTAIN OF THE DIRECTED CHANGES,
INTURN, SHOULD BE MODIFIED IN ACCORDANCE WITH THE UNION'S POSITIONS. HE
ADVISED THE UNION THAT ALTHOUGH, AFTER DISCUSSION, HE AGREED WITH
CERTAIN OF THE UNION'S SUGGESTIONS AND MODIFICATIONS OF THE CHANGES
DIRECTED BY THE NATIONAL GUARD BUREAU, HE COULD NOT FINALLY, AGREE ON
THESE SUGGESTIONS AND MODIFICATIONS. HE STATED THAT HE COULD NOT
NEGOTIATE BEYOND THE CHANGES DIRECTED BY THE NATIONAL GUARD BUREAU. THE
UNION SUGGESTED, AFTER COLONEL NYE AND THE UNION REACHED AN AGREEMENT ON
CERTAIN OF THE CLAUSES IN QUESTION, THAT COLONEL NYE CALL THE NATIONAL
GUARD BUREAU IN WASHINGTON, D.C., AND ASCERTAIN WHETHER THE AGREED UPON
CHANGES SATISFIED THE NATIONAL GUARD BUREAU. COLONEL NYE FOLLOWED THE
UNION'S SUGGESTION AND APPARENTLY RECEIVED THE APPROVAL OF THE NATIONAL
GUARD BUREAU FOR THE SUGGESTED CHANGES COLONEL NYE AND THE UNION
REPRESENTATIVES THEN FOLLOWED THIS PROCEDURE OF DISCUSSING VARIOUS OF
THE DIRECTED CHANGES AND, AFTER REACHING AGREEMENT AS TO SUGGESTED
MODIFICATIONS OF THE CLAUSES, ON TWO OR THREE OCCASIONS, COLONEL NYE
CALLING THE NATIONAL GUARD BUREAU TO SEE IF THESE AGREED UPON
SUGGESTIONS WOULD MEET WITH THE NATIONAL GUARD BUREAU'S APPROVAL. BY
FOLLOWING THIS PROCEDURE FULL AGREEMENT WAS REACHED BY THE PARTIES AS TO
ALL TERMS OF THE CONTRACT ON FEBRUARY 7, 1973. /6/ THE PARTIES,
ALTHOUGH INCLUDING THE ARBITRATION ARTICLE IN THE FEBRUARY 7 AGREEMENT,
LEFT THE ARBITRATION ARTICLE FOR FURTHER DISCUSSION AND, IN A
SUPPLEMENTAL AGREEMENT EXECUTED ON MARCH 21, 1973, AGREED TO CERTAIN
MODIFICATIONS IN THE ARBITRATION ARTICLE AND THE DURATION OF AGREEMENT
ARTICLE.
THE UNION CONTENDS THAT THE ACTIVITY FAILED AND REFUSED TO BARGAIN IN
GOOD FAITH WITH THE UNION IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER
BY:
(1) ENGAGING IN DILATORY TACTICS WITH RESPECT TO SCHEDULING A MEETING
WITH THE UNION TO AGREE UPON THE GROUNDS RULES FOR BARGAINING; AND
(2) FAILING TO PROVIDE ITS BARGAINING REPRESENTATIVE AT THE FEBRUARY
6TH AND 7TH MEETINGS WITH SUFFICIENT AUTHORITY. /7/
THE ACTIVITY DENIED THAT IT ENGAGED IN CONDUCT WHICH VIOLATES SECTION
19(A)(6) OF THE ORDER. THE UNION FURTHER REQUESTED THAT THE COMPLAINT
BE AMENDED TO ALLEGE THAT THE TWO ABOVE DESCRIBED ALLEGATIONS OF
MISCONDUCT BY THE ACTIVITY ALSO CONSTITUTED A VIOLATION OF SECTION
19(A)(1) OF THE ORDER. THE ACTIVITY OPPOSED THE MOTION. THE
UNDERSIGNED RESERVED RULING ON THE UNION'S MOTION. AFTER DUE
CONSIDERATION AND NOTING PARTICULARLY THAT THE FACTUAL MATTERS ALLEGED
WERE FULLY LITIGATED BY BOTH SIDES, THAT NO NEW FACTUAL OR EVIDENTIARY
MATTERS WERE BEING RAISED BY THE REQUESTED AMENDMENT AND THAT THE
ACTIVITY WAS ADVISED TO TRY ITS CASE AS IF THE MOTION WERE GRANTED AND
TO REQUEST ANY ADDITIONAL TIME IT NEEDED, THE COMPLAINANTS' MOTION TO
AMEND THE COMPLAINT IS HEREBY GRANTED. FURTHER, RESPONDENT'S CONTENTION
THAT THE COMPLAINT SHOULD BE DISMISSED BASED ON A/SLMR REPORT NO. 48
BECAUSE THE COMPLAINT CONTAINED A REFERENCE, "SEE ATTACHMENT," IS HEREBY
DENIED. SEE DEFENSE SUPPLY AGENCY, A/SLMR NO. 247.
THE RECORD FAILS TO ESTABLISH THAT THE ACTIVITY ENGAGED IN DILATORY
TACTICS OR UNDULY DELAYED SETTING UP MEETINGS WITH THE UNION TO AGREE
UPON GROUND RULES AND COMMENCE BARGAINING. ALTHOUGH DURING THE LATTER
PART OF MAY THE UNION APPARENTLY FIRST REQUESTED THAT THE PARTIES
SCHEDULE A MEETING FOR SETTING UP GROUND RULES, THE RECORD SEEMS
SOMEWHAT CONFUSED CONCERNING THE CIRCUMSTANCES OF THIS REQUEST OR WHAT
DATES OR TIMES, IF ANY, THE UNION SUGGESTED. IN FACT, IN ITS JUNE 14
LETTER THE UNION REQUESTED A 60-DAY EXTENTION OF THE CONTRACT TO ALLOW
THE PARTIES TO NEGOTIATE "IN THE SPIRIT AND INTENT OF THE EXECUTIVE
ORDER." AGAIN NO DATES OR TIMES WERE SUGGESTED, NO SENSE OF URGENCY WAS
EXPRESSED AND IN FACT THE REQUEST FOR THE EXTENSION OF TIME INDICATED
THAT THE UNION WAS NOT STRESSING AN EARLY MEETING. THE ACTIVITY REPLIED
PROMPTLY BY LETTER DATED JUNE 26 GRANTING THE UNION'S REQUEST FOR AN
EXTENSION OF TIME AND REQUESTING THAT JULY 12 BE SET FOR THE MEETING
CONCERNING GROUND RULES BECAUSE BOTH THE ADJUTANT GENERAL AND THE
ACTIVITY'S CHIEF NEGOTIATOR WERE ON ACTIVE DUTY TRAINING. THERE IS NO
EVIDENCE IN THE RECORD TO INDICATE THAT THIS DATE WAS NOT ACCEPTABLE TO
THE UNION. THE ACTIVITY SUBSEQUENTLY REQUESTED A ONE WEEK POSTPONEMENT
OF THE MEETING UNTIL JULY 19 BECAUSE OF AN ORI. /8/ THERE IS NO
EVIDENCE THAT THE UNION PROTESTED CONCERNING THIS POSTPONEMENT OR
REQUESTED OR DEMANDED THAT AN EARLIER DATE BE SET FOR THE MEETING.
FURTHER AT THE MEETING ON JULY 19TH THERE WAS PROMPT AGREEMENT BETWEEN
THE PARTIES CONCERNING THE GROUND RULES AND THERE IS NO EVIDENCE IN THE
RECORD THAT THE AUGUST 22 DATE AGREED UPON FOR THE FIRST NEGOTIATION
SESSION WAS NOT TOTALLY ACCEPTABLE AND AGREEABLE TO THE UNION. BASED ON
ALL OF THE FOREGOING I CONCLUDE THAT THE RECORD FAILS TO ESTABLISH THAT
THE ACTIVITY ENGAGED IN ANY DILATORY OR STALLING TACTICS CONCERNING
SETTING UP THE INITIAL MEETING, OR FOR THAT MATTER ANY SUBSEQUENT
MEETINGS. ON THE CONTRARY, THE RECORD ESTABLISHES THAT THE ACTIVITY
ACTED QUITE PROMPTLY AND SEEMED QUITE COOPERATIVE IN GRANTING THE UNION
ITS REQUESTED EXTENTION OF THE CONTRACT AND IN AGREEING TO NEGOTIATE A
NEW AGREEMENT EVEN THOUGH THE UNION DID NOT GIVE THE TIMELY WRITTEN
NOTICE AS REQUIRED TO TERMINATE THE EXISTING AGREEMENT AND BARGAIN A NEW
ONE.
THE PARTIES, AFTER EXCHANGING PROPOSALS AND COUNTER-PROPOSALS,
BARGAINED ON AUGUST 22 AND 23, PROMPTLY REACHED FULL AGREEMENT AND
EXECUTED A CONTRACT ON AUGUST 25. THIS CONTRACT WAS SUBMITTED TO THE
NATIONAL GUARD BUREAU FOR ITS APPROVAL PURSUANT TO SECTION 15 OF THE
ORDER. /9/ THE NATIONAL GUARD BUREAU BY LETTER DATED NOVEMBER 21, 1974,
/10/ ADVISED THE VERMONT ADJUTANT GENERAL THAT 41 CHANGES IN THE
SUBMITTED AGREEMENT WERE REQUIRED BEFORE THE AGREEMENT WOULD COMPLY WITH
APPLICABLE LAWS, REGULATIONS AND THE ORDER AND COULD BE APPROVED.
THE ACTIVITY AND THE UNION MET ON FEBRUARY 6 AND 7, 1973, /11/ TO
DISCUSS THESE CHANGES DIRECTED BY THE NATIONAL GUARD BUREAU. THE CHIEF
NEGOTIATOR FOR THE ACTIVITY, COLONEL NYE, AFTER DISCUSSING WITH THE
UNION SOME OF THE UNION'S OBJECTIONS TO THE DIRECTED CHANGES AND SOME OF
THE UNION'S SUGGESTIONS FOR MODIFYING THE CONTRACT CLAUSES, IN FACT,
REACHED AGREEMENT WITH THE UNION AS TO SOME OF THE CLAUSES BUT ADVISED
THE UNION THAT, IN EFFECT, HE COULD NOT ASSURE THE UNION THAT THE
NATIONAL GUARD BUREAU WOULD APPROVE THE MODIFICATIONS THAT THE UNION AND
ACTIVITY HAD AGREED UPON. AT THE UNION'S SUGGESTION, COLONEL NYE CALLED
THE NATIONAL GUARD BUREAU, AFTER THE UNION AND ACTIVITY HAD AGREED TO
SOME MODIFICATIONS, AND SECURED THE NATIONAL GUARD BUREAU'S APPROVAL OF
THESE MODIFICATIONS. IN THIS WAY THE PARTIES DID REACH VIRTUALLY FULL
AGREEMENT DURING THESE MEETINGS. THE UNION ALLEGES THAT THESE
CIRCUMSTANCES ESTABLISH THAT COLONEL NYE DID NOT HAVE SUFFICIENT
AUTHORITY AS A NEGOTIATOR TO AGREE AND BIND THE ACTIVITY AND THAT
THEREFORE THE ACTIVITY /12/ VIOLATED SECTION 19(A)(6) OF THE ORDER. THE
UNION RELIED UPON THE FACT THAT COLONEL NYE HAD TO CALL THE NATIONAL
GUARD BUREAU BEFORE HE COULD FINALLY "AGREE" TO THE MODIFICATIONS.
IN THE PRIVATE SECTOR IT IS CLEAR THAT FOR AN EMPLOYER TO BARGAIN IN
GOOD FAITH WITH THE REPRESENTATIVE OF ITS EMPLOYEES, DURING NEGOTIATIONS
OF A COLLECTIVE BARGAINING AGREEMENT, THE EMPLOYER MUST DESIGNATE A
REPRESENTATIVE WITH SUFFICIENT AUTHORITY TO NEGOTIATE AND SUCH
REPRESENTATIVE MAY NOT BE A MERE INTERMEDIARY OR COURIER. DF. EG.
COLONY FURNITURE CO., 144 NLRB 1592; SCHNELL TOOL AND DIE CORPORATION,
144 NLRB 385; AND MIAMI SWIM PRODUCTS, 145 NLRB 1348. ALTHOUGH THESE
CASES ARE NOT BINDING WHEN INTERPRETING THE ORDER, THEIR RATIONAL SEEMS
QUITE PERSUASIVE. IN ORDER FOR AN ACTIVITY AND UNION TO MEANINGFULLY
BARGAIN AND NEGOTIATE THE TERMS OF A COLLECTIVE BARGAINING AGREEMENT, IT
SEEMS CLEAR THAT THE ACTIVITY MUST BE REPRESENTED AT THE NEGOTIATIONS BY
AN AGENT WHO HAS SUFFICIENT AUTHORITY TO MEANINGFULLY NEGOTIATE, DISCUSS
AND AGREE TO THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT. AN AGENT
FOR THE ACTIVITY WITH ANY LESS AUTHORITY WOULD RESULT IN MEANINGLESS
NEGOTIATIONS AND FRUSTRATE THE PURPOSES OF THE ORDER. HOWEVER, IN THE
INSTANT CASE THERE IS NO SHOWING THAT COLONEL NYE DID NOT HAVE
SUFFICIENT AUTHORITY TO NEGOTIATE ON BEHALF OF THE ACTIVITY ITSELF. IN
FACT DURING THE AUGUST NEGOTIATIONS HE DID REACH FULL AGREEMENT WITH THE
UNION CONCERNING THE COLLECTIVE BARGAINING AGREEMENT, WHICH WAS IN FACT
SIGNED ON AUGUST 25. FURTHER, DURING THE FEBRUARY MEETINGS COLONEL NYE
COULD AND DID NEGOTIATE ON BEHALF OF THE ACTIVITY AND REACHED AGREEMENTS
CONCERNING THE MODIFICATIONS OF MANY CLAUSES AS SUGGESTED BY THE UNION.
THERE WAS NO EVIDENCE THAT COLONEL NYE HAD TO OR DID, CALL THE VERMONT
ADJUTANT GENERAL OR ANY REPRESENTATIVE OF THE VERMONT AIR NATIONAL
GUARD. HE COULD AND DID, DURING THE FEBRUARY MEETINGS, AGREE ON BEHALF
OF AND BIND THE VERMONT AIR NATIONAL GUARD WITH RESPECT TO THE
MODIFICATIONS OF CLAUSES IN THE AGREEMENT.
THE RECORD ESTABLISHES, HOWEVER, THAT COLONEL NYE APPARENTLY COULD
NOT BIND OR AGREE, IN ADVANCE, ON BEHALF OF THE NATIONAL GUARD BUREAU.
HE SOUGHT AND RECEIVED THE NATIONAL GUARD BUREAU'S APPROVAL OF THE
AGREED TO MODIFICATIONS BEFORE THEY BECAME FINAL. THE QUESTION IS THEN
PRESENTED WHETHER THE NATIONAL GUARD BUREAU WAS REQUIRED TO BE
REPRESENTED AT THE MEETINGS BY AN AGENT WITH SUFFICIENT AUTHORITY TO
NEGOTIATE ON ITS BEHALF AND WHETHER COLONEL NYE'S PRESENCE AS CHIEF
NEGOTIATOR FOR THE ACTIVITY, WITHOUT THIS AUTHORIZATION ON BEHALF OF THE
NATIONAL GUARD BUREAU, VIOLATED SECTION 19(A)(6) OF THE ORDER.
THE SECTION 15 OF THE ORDER PROVIDES THAT AFTER AN AGREEMENT WITH A
LABOR ORGANIZATION IS ARRIVED AT, IT IS SUBJECT TO THE APPROVAL OF THE
HEAD OF THE AGENCY OR HIS DESIGNEE AND THAT THE AGREEMENT "SHALL BE
APPROVED IF IT CONFORMS TO APPLICABLE LAWS, TO EXISTING PUBLISHED AGENCY
POLICIES AND REGULATIONS AND OTHER REGULATIONS OF OTHER APPROPRIATE
AUTHORITIES . . . " SECTION 11 OF THE ORDER PROVIDES THAT IF AN ISSUE
DEVELOPS DURING NEGOTIATIONS AS TO WHETHER A PROPOSAL IS CONTRARY TO
LAW, REGULATIONS, THE ORDER, ETC., AND IS THEREFORE NON-NEGOTIABLE,
CERTAIN PROCEDURES SHALL BE FOLLOWED TO RESOLVE SUCH ISSUE, CULMINATING
IN TAKING THE DISPUTE TO THE FLRC. THE UNFAIR LABOR PRACTICE PROVISIONS
OF THE ORDER ARE NOT PART OF THESE PROCEDURES.
IN THE CIRCUMSTANCES PRESENT IN THIS CASE IT IS CONCLUDED THAT AN
OFFICIAL NATIONAL GUARD BUREAU IS THE APPROPRIATE PARTY, UNDER SECTION
15 OF THE ORDER TO HAVE REVIEWED THE AUGUST 25 AGREEMENT. /13/
THE NATIONAL GUARD BUREAU, DID NOT APPROVE THE AGREEMENT AND
CONCLUDED THAT 51 CHANGES WERE REQUIRED, UNDER SECTION 15 OF THE ORDER
IN ORDER TO BRING THE CONTRACT INTO CONFORMITY WITH APPLICABLE LAWS,
REGULATIONS, POLICIES AND THE ORDER. THE ORDER PROVIDES THAT IF THE
UNION DISAGREED WITH THE NATIONAL GUARD BUREAU'S REFUSAL TO APPROVE THE
CONTRACT BECAUSE THE UNION DISAGREED WITH THE DETERMINATION THAT CERTAIN
CLAUSES OF THE AGREEMENT VIOLATED LAWS, REGULATIONS, POLICIES AND THE
ORDER, THE UNION SHOULD PROCEED PURSUANT TO SECTION 11(C) OF THE ORDER
AND ULTIMATELY PRESENT ITS ARGUMENTS TO THE FLRC. CF. AFTER, AFL-CIO,
AND SUPSHIP USN, 111TH NAVAL DISTRICT; FLRC NO. 71A-49.
WHEN THE AGREEMENT WAS RETURNED AS DISAPPROVED, THE UNION CHOSE NOT
TO APPEAL BY FOLLOWING THE PROCEDURE SET FORTH IN SECTION 11(C) OF THE
ORDER; RATHER THE UNION DECIDED TO NEGOTIATE WITH THE ACTIVITY
CONCERNING THE CLAUSES THAT HAD BEEN DISAPPROVED AND THE MODIFICATIONS
DIRECTED BY THE NATIONAL GUARD BUREAU.
BECAUSE THE NATIONAL GUARD BUREAU WAS THE APPROVING AGENCY UNDER
SECTION 15 OF THE ORDER, THE ORDER DOES NOT REQUIRE THAT THEY BE PRESENT
DURING NEGOTIATIONS. IT MERELY PROVIDES THAT THE AGREEMENT, AFTER IT IS
REACHED BY BOTH THE LOCAL ACTIVITY AND UNION, BE SUBMITTED TO THE
NATIONAL GUARD BUREAU FOR APPROVAL. THE DIRECTED CHANGES WERE, IN
EFFECT, THOSE CHANGES OF THE EXISTING CLAUSES, WHICH THE NATIONAL GUARD
BUREAU PERCEIVED AS NECESSARY FOR IT TO APPROVE THE CONTRASTING BY
BRINGING THE AGREEMENT INTO CONFORMITY WITH THE LAWS, REGULATIONS, ETC.
THE ORDER DOES NOR REQUIRE THAT THE NATIONAL GUARD BUREAU HAD TO BE
PRESENT DURING THE NEGOTIATION SESSIONS OF FEBRUARY 6 AND 7, BUT MERELY
THAT ANY AGREEMENT REACHED BETWEEN THE UNION AND THE ACTIVITY,
CONCERNING CLAUSES WHICH THE NATIONAL GUARD BUREAU HAD PREVIOUSLY FOUND
NOT ACCEPTABLE, MAY BE RESUBMITTED TO THE NATIONAL GUARD FOR ITS
APPROVAL UNDER SECTION 15 OF THE ORDER. /14/
IT IS CONCLUDED THEREFORE THAT THE ORDER DOES NOT REQUIRE THAT
COLONEL NYE HAD TO HAVE AUTHORITY TO NEGOTIATE ON BEHALF OF THE NATIONAL
GUARD BUREAU OR THAT THE NATIONAL GUARD BUREAU BE REPRESENTED, BUT ONLY
THAT COLONEL NYE HAVE ADEQUATE AUTHORITY TO NEGOTIATE ON BEHALF OF THE
ACTIVITY, WHICH HE DID. WHEN HE STATED THAT HE COULD NOT NEGOTIATE
BEYOND THE DIRECTED CHANGES, HE WAS, IN EFFECT, MERELY STATING THAT HE
COULD NOT STATE IN ADVANCE THAT THE NATIONAL GUARD BUREAU WOULD APPROVE
ANY CHANGES OTHER THAN THE MODIFICATIONS IT SUGGESTED.
HOWEVER, RATHER THAN AGREE ON A SERIES OF DIFFERENT MODIFICATIONS AND
CHANGES BETWEEN THEMSELVES, AND THEN SUBMIT THEM ALL AT ONE TIME TO THE
NATIONAL GUARD BUREAU, THE UNION AND THE ACTIVITY, AT THE UNION'S
SUGGESTION, AGREED THAT ON A NUMBER OF OCCASIONS, AFTER CERTAIN CHANGES
HAD BEEN AGREED TO, COLONEL NYE WOULD CALL THE NATIONAL GUARD BUREAU TO
SEE IF IT WOULD APPROVE SUCH CLAUSES, AS MODIFIED. THE UNION AND THE
ACTIVITY HAD BETWEEN THEMSELVES, AND WITH THE COOPERATION OF THE
NATIONAL GUARD BUREAU, AGREED UPON A PROCEDURE WHEREBY THEY WERE, IN
FACT, OBTAINING SECTION 15 APPROVAL OF THE MODIFIED CLAUSES FROM THE
NATIONAL GUARD BUREAU AS THEY RENEGOTIATED THESE CLAUSES.
IT IS CONCLUDED THEREFORE BASED ON ALL THE FOREGOING THAT COLONEL NYE
DID HAVE ADEQUATE AUTHORITY TO NEGOTIATE ON BEHALF OF THE ACTIVITY
DURING THESE FEBRUARY 6TH AND 7TH NEGOTIATION MEETINGS, THAT THE
NATIONAL GUARD BUREAU DID NOT HAVE TO BE REPRESENTED AT THESE MEETINGS
AND THAT, THEREFORE, RESPONDENT ACTIVITY DID NOT ENGAGE IN CONDUCT WHICH
VIOLATED SECTION 19(A)(1) AND (6) 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: MARCH 29, 1974
WASHINGTON, D.C.
/1/ IT SHOULD BE NOTED THAT THE COMPLAINANT FORM STATES UNDER, "1.
F," THAT THE ACTIVITY IS PART OF THE NATIONAL GUARD BUREAU. THE RECORD
DOES NOT ESTABLISH THAT THE NATIONAL GUARD BUREAU WAS SEPARATELY SERVED
WITH A COPY OF THE COMPLAINT AND IT WAS NOT REPRESENTED AT THE HEARING.
/2/ THE ADJUTANT GENERAL IS THE COMMANDING OFFICER OF THE VERMONT AIR
NATIONAL GUARD.
/3A/ ARTICLE XXVIII, SECTION B PROVIDED:
"THIS AGREEMENT WILL BE AUTOMATICALLY RENEWED FROM YEAR TO YEAR
UNLESS EITHER PARTY GIVES WRITTEN NOTICE, INCLUDING ITS PROPOSALS, TO
THE OTHER, DURING THE PERIOD OF SIXTY (60) CALENDAR DAYS IMMEDIATELY
PRECEDING THE ANNIVERSARY DATE OF THE AGREEMENT OF ITS DESIRE TO
TERMINATE THIS AGREEMENT IN ITS ENTIRETY OR OF ITS DESIRE TO EFFECT
CHANGES THERETO BY AMENDMENT AND/OR SUPPLEMENT."
/3B/ THIS CONVERSATION WAS TESTIFIED TO SOLELY BY A UNION WITNESS WHO
WAS NOT A PARTY TO IT. THE WITNESS WAS APPARENTLY TOLD ABOUT THE
CONVERSATION BY UNION PRESIDENT LIGHT. MR. LIGHT WAS NOT CALLED TO
TESTIFY.
/4/ "AT" STANDS FOR ACTIVE DUTY TRAINING.
/5/ THE CHIEF NEGOTIATOR AND SPOKESMAN FOR THE ACTIVITY AT THIS
MEETING AND ALL SUBSEQUENT MEETINGS WAS LT. COL. RANDALL M. NYE.
/6/ THE PARTIES "SIGNED OFF" ON THE GRIEVANCE PROCEDURE ARTICLE IN
THE CONTRACT AND AGREED TO AWAIT A DECISION FROM THE FEDERAL LABOR
RELATIONS COUNCIL (FLRC) CONCERNING THIS GRIEVANCE PROCEDURE. THE
GRIEVANCE PROCEDURE AND A DEPARTMENT OF DEFENSE DIRECTIVE WAS BEING
CONSIDERED IN A CASE THEN PENDING BEFORE THE FLRC.
/7/ THE UNION SET FORTH THESE CONTENTIONS IN ITS ORAL ARGUMENT AT THE
HEARING AND IN ITS BRIEF. THE UNION HAD NOT ALLEGED OR CONTENDED, INTER
ALIA, THAT COLONEL NYE, THE ACTIVITY'S BARGAINING REPRESENTATIVE DID NOT
HAVE SUFFICIENT BARGAINING AUTHORITY DURING THE JULY 19 OR AUGUST 22 AND
23 MEETINGS OR THAT THE NATIONAL GUARD BUREAU VIOLATED THE ACT BY
DISAPPROVING THE AGREEMENT SIGNED ON AUGUST 25 OR BY DIRECTING 41
CHANGES.
/8/ ALTHOUGH THERE WAS SOME DISPUTE WHETHER COLONEL NYE WAS
ABSOLUTELY NECESSARY FOR THE ORI AND ITS PREPARATION, THERE WAS NO
EVIDENCE THAT THE ACTIVITY FAILED TO USE HIM TO PREPARE FOR AND
PARTICIPATE IN THE ORI OR THAT THE ACTIVITY WAS ACTING IN BAD FAITH. IN
ANY EVENT THE POSTPONEMENT WAS MERELY ONE WEEK.
/9/ SECTION 15 STATES:
"APPROVAL OF AGREEMENTS. AN AGREEMENT WITH A LABOR ORGANIZATION AS
THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE
APPROVAL OF THE HEAD OF THE AGENCY OR AN OFFICIAL DESIGNATED BY HIM. AN
AGREEMENT SHALL BE APPROVED IF IT CONFORMS TO APPLICABLE LAWS, EXISTING
PUBLISHED AGENCY POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED
AN EXCEPTION TO A POLICY OR REGULATION) AND REGULATIONS OF OTHER
APPROPRIATE AUTHORITIES . . . "
/10/ NO REASON FOR THIS DELAY WAS PLACED ON THE RECORD HEREIN, AND
ALTHOUGH THE DELAY SEEMS UNDULY LONG, IT WAS NOT ALLEGED AS AN UNFAIR
LABOR PRACTICE. FURTHER THERE WAS NO EVIDENCE SUBMITTED THAT THE UNION
COMPLAINED TO THE ACTIVITY ABOUT THE DELAY OR REQUESTED THAT THE
NATIONAL GUARD BUREAU ACT MORE EXPEDITIOUSLY.
/11/ THE RECORD DOES NOT ESTABLISH THE REASON FOR THE DELAY BETWEEN
THE RECEIPT OF THE NOVEMBER 1972 LETTER AND THE FEBRUARY 1973 MEETINGS.
/12/ THE UNION DID NOT SPECIFICALLY ALLEGE THAT THE NATIONAL GUARD
BUREAU VIOLATED THE ORDER. FURTHER THE PROPOSED ORDER CONTAINED IN THE
UNION'S BRIEF DIRECTED ONLY THAT THE ACTIVITY CEASE THE UNLAWFUL
CONDUCT, NOT THE NATIONAL GUARD BUREAU ITSELF. IT IS NOTED, HOWEVER,
THAT THE UNION DID SUBMIT EVIDENCE THAT IT ASKED COLONEL NYE TO CONTACT
THE NATIONAL GUARD BUREAU AND ASK THAT IT SEND A REPRESENTATIVE TO THE
MEETINGS.
/13/ THE PARTIES WERE REQUESTED TO BRIEF THE PRECISE RELATIONSHIP
BETWEEN THE VERMONT AIR NATIONAL GUARD AND THE NATIONAL GUARD BUREAU.
THE UNION IN ITS BRIEF DID NOT DO SO. THE PARTIES WERE NOT ABLE, AT THE
HEARING, TO REACH A STIPULATION AS TO THE RELATIONSHIP OF THE VERMONT
AIR NATIONAL GUARD AND THE NATIONAL GUARD BUREAU AND THE UNION DID NOT
SUBMIT ANY SUBSTANTIAL EVIDENCE WITH RESPECT TO THIS RELATIONSHIP.
HOWEVER, THE REPRESENTATIONS MADE BY THE COUNSEL FOR THE ACTIVITY AT THE
HEARING, ALTHOUGH NOT AGREED TO BY THE UNION, WERE NOT DENIED NOR WERE
ANY REPRESENTATIONS TO THE CONTRARY MADE BY THE UNION. I CONCLUDE
THEREFORE THAT THE REPRESENTATIVE OF THE NATIONAL GUARD BUREAU WAS AN
OFFICIAL WHO COULD PROPERLY ACT, PURSUANT TO SECTION 15 OF THE ORDER, ON
BEHALF OF THE HEAD OF THE AGENCY.
/14/ THE "DIRECTED" MODIFICATIONS WERE MERELY THE NATIONAL GUARD
BUREAU'S SUGGESTIONS AS TO THOSE MODIFICATIONS OF THE SUBMITTED
AGREEMENT WHICH IT COULD STATE IN ADVANCE IT WOULD APPROVE.
4 A/SLMR 396; P. 362; CASE NO. 32-3462(CA); MAY 31, 1974.
JOINT TECHNICAL COMMUNICATIONS OFFICE (TRI-TAC),
DEPARTMENT OF DEFENSE,
FORT MONMOUTH, NEW JERSEY
A/SLMR NO. 396
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476 (COMPLAINANT),
ALLEGING THAT THE JOINT TECHNICAL COMMUNICATIONS OFFICE (TRI-TAC),
DEPARTMENT OF DEFENSE, FORT MONMOUTH, NEW JERSEY (RESPONDENT), VIOLATED
SECTION 19(A)(6) OF THE ORDER BASED ON THE LATTER'S REFUSAL TO SIGN A
NEGOTIATED AGREEMENT AND FORWARD SAME TO HIGHER AUTHORITY FOR APPROVAL.
IN JANUARY, 1972, THE PARTIES COMMENCED NEGOTIATION OF A MEMORANDUM
OF UNDERSTANDING (MEMORANDUM) TO ESTABLISH THE BASIC PROCEDURE FOR
NEGOTIATING AN AGREEMENT. THE MEMORANDUM WAS EXECUTED BY THE PARTIES ON
APRIL 3, 1972, AND PROVIDED, AMONG OTHER THINGS, FOR THE CHIEF
NEGOTIATOR FOR EACH SIDE TO INITIAL THOSE ITEMS OF THE BASIC AGREEMENT
WHICH HAD BEEN AGREED UPON DURING THE COURSE OF THE NEGOTIATIONS. THE
PARTIES COMMENCED NEGOTIATIONS OF THE BASIC AGREEMENT ON APRIL 6, 1972,
AND BY AUGUST 14, 1973, THEY HAD MUTUALLY AGREED TO, AND INITIATED,
SUBSTANTIALLY ALL OF THE ITEMS OF THE AGREEMENT. HOWEVER, THERE WERE
SIX ITEMS UPON WHICH THE PARTIES HAD REACHED IMPASSE AND, BY MUTUAL
AGREEMENT, THESE SIX ITEMS WERE TO BE REFERRED TO A FEDERAL MEDIATOR FOR
RESOLUTION WITH THE UNDERSTANDING THAT THESE ITEMS, WHEN RESOLVED, WOULD
BE CONTAINED IN AN ADDENDUM OR SUPPLEMENTAL AGREEMENT TO THE BASIC
NEGOTIATED AGREEMENT. THEREAFTER, ON AUGUST 17, 1973, THE RESPONDENT
PREPARED A "CLEAN COPY" DRAFT OF ALL OF THE ITEMS THAT HAD BEEN AGREED
UPON AND INITIALED BY THE CHIEF NEGOTIATORS FOR BOTH PARTIES. ON
SEPTEMBER 13, THE COMPLAINANT SENT A SIGNATURE SHEET, SIGNED BY THE
COMPLAINANT'S REPRESENTATIVE, TO THE RESPONDENT AND REQUESTED THE LATTER
TO EXECUTE THE AUGUST 14, 1973, AGREEMENT AND FORWARD IT TO THE
DEPARTMENT OF THE ARMY FOR ADMINISTRATIVE REVIEW AND APPROVAL.
SUBSEQUENTLY, THE RESPONDENT'S CHIEF NEGOTIATOR PRESENTED THE NEGOTIATED
AGREEMENT TO THE RESPONDENT'S VICE DIRECTOR. ON OCTOBER 2, 1973, THE
PARTIES MET TO DISCUSS SIX MINOR CHANGES SUGGESTED BY THE RESPONDENT'S
VICE DIRECTOR AND THEY REACHED AGREEMENT ON FIVE OF THESE ITEMS.
THEREAFTER, THE RESPONDENT'S DIRECTOR MADE ADDITIONAL CHANGES IN 20
ADDITIONAL CLAUSES IN THE AUGUST 14 AGREEMENT. ON OCTOBER 30, 1973, THE
RESPONDENT'S NEGOTIATOR MET WITH THE COMPLAINANT'S NEGOTIATING TEAM TO
EXPLAIN WHY THE SUGGESTED CHANGES WERE DESIRED BY THE RESPONDENT'S
DIRECTOR. THE COMPLAINANT INDICATED THAT IT WOULD CONSIDER THE
EXPLANATIONS. ON NOVEMBER 9, 1973, THE RESPONDENT SERVED THE
COMPLAINANT WITH A COPY OF AN AGREEMENT ACCEPTABLE TO THE RESPONDENT,
WHICH INCLUDED THE 20 CHANGES DESIRED BY THE RESPONDENT'S DIRECTOR, WITH
THE SIGNATURE OF THE RESPONDENT'S DIRECTOR AND CHIEF NEGOTIATOR ATTACHED
THERETO.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT AS OF AUGUST 14, 1973, THE
PARTIES HAD REACHED FULL AGREEMENT ON ALL OF THE TERMS AND CONDITIONS OF
A NEGOTIATED AGREEMENT. THEREAFTER, BY MUTUAL CONSENT THE PARTIES
AGREED TO CERTAIN MINOR MODIFICATION OF SOME FIVE ITEMS. SUBSEQUENTLY,
THE RESPONDENT REFUSED TO EXECUTE THIS AGREEMENT. THE ADMINISTRATIVE
LAW JUDGE FOUND THAT THE CHIEF NEGOTIATOR FOR THE RESPONDENT HAD BEEN
GIVEN FULL AUTHORITY TO NEGOTIATE AND TO BIND THE RESPONDENT. THIS
FINDING WAS BASED UPON THE PROVISIONS OF THE MEMORANDUM, AS WELL AS UPON
THE CREDITED TESTIMONY OF ONE OF THE MEMBERS OF THE COMPLAINANT'S
NEGOTIATING TEAM. UNDER THE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY
REFUSING TO SIGN THE AUGUST 14 AGREEMENT NEGOTIATED AND AGREED UPON BY
THE PARTIES. HE RECOMMENDED THAT THE ASSISTANT SECRETARY ORDER THE
RESPONDENT TO TAKE CERTAIN AFFIRMATIVE ACTION, INCLUDING THE SIGNING,
UPON REQUEST, OF THE AUGUST 14, 1973, AGREEMENT, AS MODIFIED BY MUTUAL
CONSENT OF THE PARTIES ON OR ABOUT OCTOBER 2, 1973.
THE ASSISTANT SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, NOTING THAT HIS
FINDINGS WERE BASED, IN PART, ON CREDIT TESTIMONY, AND NOTING ALSO THE
ABSENCE OF ANY EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS.
JOINT TACTICAL COMMUNICATIONS OFFICE
(TRI-TAC), DEPARTMENT OF DEFENSE,
FORT MONMOUTH, NEW JERSEY
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 476
ON MARCH 15, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT, JOINT TACTICAL COMMUNICATIONS OFFICE (TRI-TAC),
DEPARTMENT OF DEFENSE, FORT MONMOUTH, NEW JERSEY, 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. 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,
/1/ 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 JOINT TACTICAL
COMMUNICATIONS OFFICE (TRI-TAC), DEPARTMENT OF DEFENSE, FORT MONMOUTH,
NEW JERSEY, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO SIGN THE NEGOTIATED AGREEMENT AS AGREED TO ON AUGUST
14, 1973, AND MODIFIED BY MUTUAL CONSENT ON OR ABOUT OCTOBER 2, 1973,
WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) UPON REQUEST, SIGN THE NEGOTIATED AGREEMENT AS AGREED TO ON
AUGUST 14, 1973, AND MODIFIED BY MUTUAL CONSENT ON OR ABOUT OCTOBER 2,
1973, WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476.
(B) POST AT ITS FACILITY 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 DIRECTOR 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 DIRECTOR SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 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.
MAY 31, 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.
WE WILL NOT REFUSE TO SIGN THE NEGOTIATED AGREEMENT AS AGREED TO ON
AUGUST 14, 1973, AND MODIFIED BY MUTUAL CONSENT ON OR ABOUT OCTOBER 2,
1973, WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476.
WE WILL, UPON REQUEST, SIGN THE NEGOTIATED AGREEMENT AS AGREED TO ON
AUGUST 14, 1973, AND MODIFIED BY MUTUAL CONSENT ON OR ABOUT OCTOBER 2,
1973, WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476.
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 OF THE 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
JOINT TACTICAL COMMUNICATIONS OFFICE
(TRI-TAC), DEPARTMENT OF DEFENSE
FORT MONMOUTH, NEW JERSEY,
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 476,
CAPTAIN JAMES CHESLOCK
OFFICE OF THE STAFF JUDGE ADVOCATE
BUILDING 492A
FORT MONMOUTH, NEW JERSEY
MICHAEL SUSSMAN, ESQ.
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREIN
CALLED THE ORDER) ARISING PURSUANT TO A NOTICE OF HEARING ON COMPLAINT
ISSUED ON DECEMBER 17, 1973 BY THE ASSISTANT REGIONAL DIRECTOR OF THE
UNITED STATES DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, NEW YORK REGION.
THE COMPLAINT HEREIN WAS FILED ON OCTOBER 23, 1973 BY NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476 (HEREIN CALLED THE
COMPLAINANT) AGAINST JOINT TACTICAL COMMUNICATIONS OFFICE (TRI-TAC),
DEPARTMENT OF DEFENSE, FORT MONMOUTH, NEW JERSEY (HEREIN CALLED THE
RESPONDENT). THE COMPLAINT ALLEGED THAT RESPONDENT NEGOTIATED A
COLLECTIVE BARGAINING AGREEMENT WITH COMPLAINANT, MUTUALLY AGREED UPON
ITS TERMS, AND THEREAFTER REFUSED TO SIGN THE AGREEMENT AND FORWARD SAME
TO HIGHER AUTHORITY FOR APPROVAL-- ALL IN VIOLATION OF SECTION 19(A)(6)
OF THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JANUARY 8, 1974 AT FORT
MONMOUTH, NEW JERSEY. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
THE UNION CONTENDS THAT AFTER PROTRACTED NEGOTIATIONS IT REACHED AN
AGREEMENT WITH RESPONDENT COVERING THE REPRESENTED EMPLOYEES. IT ARGUES
THAT THE EMPLOYER'S CHIEF NEGOTIATOR HAD AUTHORITY TO BIND THE ACTIVITY;
THAT THE PARTIES MUTUALLY AGREED UPON THE TERMS OF THE CONTRACT, AND
THAT THE FAILURE OF RESPONDENT TO SIGN THE CONTRACT AND SUBMIT IT TO
HIGHER AUTHORITY FOR APPROVAL, AS WELL AS CHANGING 20 ITEMS PREVIOUSLY
AGREED UPON, CONSTITUTE A REFUSAL TO CONSULT, CONFER, OR NEGOTIATE UNDER
THE ORDER.
RESPONDENT MAINTAINS THAT UNDER SECTION 11(A) OF THE ORDER IT IS ONLY
OBLIGED TO NEGOTIATE IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS,
INCLUDING POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL AND
PUBLISHED AGENCY POLICIES AND REGULATIONS. FURTHER, SECTION 7B(2)(I) OF
CHAPTER 711 OF CIVILIAN PERSONNEL REGULATION 700, WHICH IMPLEMENTS
DEPARTMENT OF DEFENSE DIRECTIVE 1426.1, PROVIDES THAT THE ACTIVITY
COMMANDER IS THE LOCAL APPROVAL AUTHORITY AND REQUIRES THAT HIS
SIGNATURE BE ON THE DOCUMENT BEFORE IT IS FORWARDED TO HIGHER APPROVAL
AUTHORITY. ACCORDINGLY, THE LOCAL COMMANDER COULD REFUSE TO APPROVE THE
AGREEMENT WITH WHICH HE WAS NOT IN ACCORD, AND SUCH REFUSAL WAS NOT
INDICATIVE OF BAD FAITH BARGAINING.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. ON OR ABOUT AUGUST 3, 1971 COMPLAINANT WAS CERTIFIED AS THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL NON-PROFESSIONAL AND
PROFESSIONAL EMPLOYEES IN A NON-SUPERVISORY CAPACITY IN THE TRI-TAC
OFFICE, DEPARTMENT OF DEFENSE, FORT MONMOUTH, NEW JERSEY.
2. COMMENCING ABOUT JANUARY 1972 COMPLAINANT AND RESPONDENT
COMMENCED NEGOTIATING A MEMORANDUM OF UNDERSTANDING (HEREIN CALLED MOU)
TO SERVE AS THE GROUND RULES REGARDING NEGOTIATIONS FOR A COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE PARTIES.
3. THE MOU /2/ WAS SIGNED ON APRIL 3, 1972 BY BRIGADIER GENERAL
HAROLD W. RICE, /3/ ACTIVITY DIRECTOR AND E. M. PRITCHARD, CHIEF
NEGOTIATOR, FOR THE RESPONDENT, AND BY HERBERT CAHN, PRESIDENT OF THE
UNION AND BRIAN E. CHARNICK, CHIEF NEGOTIATOR FOR THE COMPLAINANT.
IT PROVIDED, INTER ALIA, THAT (A) EACH PARTY WOULD HAVE THREE
MEMBERS, INCLUDING THE CHIEF NEGOTIATOR, COMPRISING ITS MEMBERSHIP
COMMITTEE; (B) THE CHIEF NEGOTIATOR OF EACH TEAM WOULD BE THE OFFICIAL
SPOKESMAN FOR HIS SIDE; (C) UPON REACHING AN AGREEMENT ON EACH ARTICLE,
THE CHIEF NEGOTIATORS SHALL SIGNIFY SUCH AGREEMENT BY INITIALING THE
AGREED-UPON ITEM; (D) THE CHIEF NEGOTIATOR FOR THE ACTIVITY CHIEF OR
HIS ALTERNATE IS AUTHORIZED TO NEGOTIATE ALL ASPECTS OF
EMPLOYEE-MANAGEMENT RELATIONS SUBJECT TO THE ORDER, AS AMENDED, AND THAT
ARE UNDER THE CONTROL OF THE ACTIVITY CHIEF; (E) THE CHIEF NEGOTIATOR
FOR THE UNION OR HIS ALTERNATE HAS AUTHORITY TO SPEAK FOR THE UNION;
(F) IMPASSE ITEMS MAY BE SET ASIDE, SUBMITTED TO FEDERAL MEDIATION &
CONCILIATION SERVICE FOR MEDIATION AND ULTIMATELY TO THE FEDERAL
SERVICES IMPASSE PANEL IF NOT RESOLVED BY THE MEDIATOR.
4. NEGOTIATIONS FOR A COLLECTIVE BARGAINING AGREEMENT COMMENCED ON
APRIL 6, 1972. EACH SIDE WAS REPRESENTED BY 3 MEMBERS, BUT ULTIMATELY
CHARNICK AND PRITCHARD WERE, AS CHIEF NEGOTIATORS, THE SOLE
REPRESENTATIVES FOR THE UNION AND THE EMPLOYER RESPECTIVELY. THERE WERE
APPROXIMATELY 18 FORMAL BARGAINING SESSIONS OCCUPYING 50 HOURS, THE LAST
SUCH SESSION OCCURRING ON FEBRUARY 22, 1973. IN MARCH 1973 CHARNICK AND
PRITCHARD COMMENCED THE FIRST OF FIVE OR SIX INFORMAL BARGAINING
MEETINGS TO RESOLVE SOME MATTERS WHICH WERE STILL OPEN.
5. ALICE PETRERO, MEMBER OF THE UNION NEGOTIATING TEAM, TESTIFIED,
AND I FIND, THAT THE PARTIES AGREED, AT THE FIRST FORMAL MEETING, THAT
IF ANY SPECIFIC ITEM WAS MUTUALLY AGREED UPON, EACH WOULD INITIAL THE
WORKING CONTRACT, AND THE SAME WAS THEN DISPOSED OF AS FINAL AND BINDING
UPON THE PARTIES.
6. HERBERT CAHN, PRESIDENT OF COMPLAINANT, TESTIFIED, AND I FIND,
THAT DURING THE EARLY BARGAINING DISCUSSIONS MANAGEMENT WAS INFORMED
THERE WAS NO RATIFICATION PROCEDURE ON THE UNION'S PART, BUT THAT ITS
CHIEF NEGOTIATOR WAS VESTED WITH FULL AUTHORITY TO BIND THE UNION AS TO
THE CONTRACT TERMS HE NEGOTIATED ON ITS BEHALF.
7. BOTH CHARNICK AND PRITCHARD AGREED, AT THE OUTSET OF
NEGOTIATIONS, THAT THE CONTRACT WOULD CONSIST OF THE TERMS AGREED TO,
AND THE NEGOTIATING SESSIONS CENTERED AROUND THE WORKING COPY OF A UNION
PROPOSED AGREEMENT. /4/ EACH SECTION OF THE PROPOSED CONTRACT WAS
DISCUSSED DURING THE BARGAINING MEETING, AND UPON AGREEING TO THE
CLAUSES, OR A MODIFICATION THEREOF, EACH CHIEF NEGOTIATOR WOULD INITIAL
THE CLAUSE. AT VARIOUS TIMES DURING THE NEGOTIATIONS PRITCHARD
CONSULTED WITH OTHER REPRESENTATIVES OF THE ACTIVITY BEFORE INITIALING
THE CONTRACTUAL PROVISIONS.
8. BY MARCH 22, 1973 /5/ THE CHIEF NEGOTIATORS FOR COMPLAINANT AND
RESPONDENT HAD AGREED ON ALL ITEMS OF THE PROPOSED CONTRACT EXCEPT FOR
EIGHT ITEMS CONCERNING WHICH THE PARTIES WERE AT IMPASSE. THREE OF
THESE WERE LATER RESOLVED, LEAVING THE FOLLOWING ITEMS TO BE SUBMITTED
TO THE FEDERAL MEDIATION AND CONCILIATION SERVICE FOR RESOLUTION: JOB
DESCRIPTIONS, PARKING, COMPETITIVE AREA, PERSONNEL POLICIES, AND
DISPUTES. THE PARTIES AGREED THAT THESE MATTERS, IF RESOLVED AND
CONSENTED TO, WOULD BECOME PART OF A SUPPLEMENTAL AGREEMENT TO BE
SUBSEQUENTLY EXECUTED BETWEEN THEM. THE UNION WROTE THE CONCILIATION
SERVICE A LETTER /6/ ON JUNE 26, REQUESTING ITS SERVICES TO HELP RESOLVE
THE DISPUTED MATTERS.
9. THE CHIEF NEGOTIATORS COMPLETED THEIR BARGAINING SESSIONS ON OR
ABOUT AUGUST 14, AT WHICH TIME PRITCHARD STATED HE WOULD HAVE HIS
SECRETARY FINAL TYPE THE INITIALED-OFF (AGREED TO) CLAUSES OF THE
CONTRACT, DATED AUGUST 14, AND PRESENT THE AGREEMENT UPON THE
ADMINISTRATIVE CHAIN FOR APPROVAL. A CONFIRMING LETTER /7/ DATED AUGUST
17 TO THIS EFFECT WAS SENT TO PRITCHARD BY CHARNICK.
10. NO RESPONSE WAS RECEIVED FROM RESPONDENT REGARDING THE AGREED
UPON CONTRACTUAL PROVISIONS. THEREAFTER, THE UNION SENT THE DIRECTOR A
LETTER /8/ DATED SEPTEMBER 14, ENCLOSING A SIGNATURE SHEET /9/ SIGNED BY
THE UNION'S REPRESENTATIVES REQUESTING THAT HE SIGN SAME AND FORWARD IT
TO THE DEPARTMENT OF ARMY FOR THEIR ADMINISTRATIVE REVIEW AND APPROVAL.
11. PRITCHARD TESTIFIED, AND I FIND, THAT HE ATTEMPTED TO PRESENT
THE RESULTS OF THE NEGOTIATIONS - THE AGREED UPON ITEMS - TO BRIGADIER
GENERAL WILLIAMS, VICE DIRECTOR, FOR HIS REVIEW, BUT WAS UNABLE TO MEET
WITH HIM UNTIL SEPTEMBER 28. THEY MET ON THAT DATE, AS WELL AS OCTOBER
1, TO DISCLOSE THE CONTRACTUAL PROVISIONS. WILLIAMS INDICATED APPROVAL
EXCEPT FOR SIX CLAUSES WHICH HE DESIRED TO CHANGE, AND STATED HE WOULD
HAVE TO CHECK WITH GENERAL KAY REGARDING THE AGREEMENT.
12. ON OCTOBER 2 PRITCHARD MET WITH CHARNICK TO DISCUSS THE SIX
ITEMS WHICH WILLIAMS MODIFIED. THE UNION AGREED TO THE CHANGE AS TO
FOUR MATTERS WHICH INVOLVED (A) PERSONNEL POLICIES (ARTICLE 10-SECTION
A); (B) CONDITIONS, REQUIRING ATTENDANCE AT WORK UNLESS PROPERLY
EXCUSED (ARTICLE 6-SECTION E); (C) UNION RIGHTS, REQUISITES FOR STEWARD
TO LEAVE DUTY (ARTICLE IV); (D) POLICIES FOR CONDUCT OF UNION BUSINESS,
(ARTICLE 3-SECTION A). THESE WERE SENT TO CHARNICK FROM PRITCHARD BY A
MEMO /10/ DATED OCTOBER 3, WITH A NOTATION THAT HE UNDERSTOOD THE UNION
REPRESENTATIVE WAS WILLING TO ACCEPT /11/ THEM WITH PRITCHARD'S
SIGNATURE, AND FURTHER STATING HE WAS REWORKING THE OTHER TWO MATTERS IN
AN ATTEMPT TO ANTICIPATE THE REACTION OF MAJOR GENERAL HAROLD KISSINGER,
DIRECTOR OF THE ACTIVITY. ONE OF THESE TWO ITEMS WAS ACCEPTED BY THE
UNION AS REVISED BY MANAGEMENT.
13. ON OR ABOUT OCTOBER 7 COMPLAINANT RECEIVED FROM RESPONDENT A
TYPED UP AND "CLEAN" COPY /12/ OF THE AGREEMENT NEGOTIATED BETWEEN THE
CHIEF NEGOTIATORS, WHICH EMBODIED THE CLAUSES INITIALED AND AGREED UPON
DURING THE BARGAINING MEETINGS. THIS IS REFERRED TO AS THE "AUGUST 14
CONTRACT" BETWEEN THE PARTIES.
14. PRITCHARD MET WITH DIRECTOR KISSINGER ON OCTOBER 9, 10, AND 11
AND WENT OVER THE CONTRACT TERMS ALREADY AGREED UPON BY THE CHIEF
NEGOTIATOR. APART FROM THE SIX IMPASSE PROVISIONS SET ASIDE FOR
MEDIATION AND THE FIVE ITEMS WHICH WERE CHANGED BY MUTUAL AGREEMENT, THE
DIRECTOR REVISED AND CHANGED 20 MORE CLAUSES IN THE AUGUST 14 CONTRACT
WHICH HAD BEEN AGREED TO BY THE CHIEF NEGOTIATORS. THE AUGUST 14
AGREEMENT, TOGETHER WITH THE IMPASSE MATTERS, WERE SET FORTH BY
RESPONDENT IN A DOCUMENT /13/ ENTITLED UNION/MANAGEMENT CONTRACT
AGREEMENT, WHICH WAS PREPARED ON DECEMBER 28. IT CONTAINED THE VERSION
OF CLAUSES THE UNION CLAIMED HAD BEEN AGREED UPON AND THE "VERSION
ACCEPTABLE TO THE DIRECTOR" AS WELL AS SEVERAL PAGES EXPLAINING THE
REASONS FOR THE 20 CHANGES MADE BY THE DIRECTOR.
15. ON OCTOBER 30 PRITCHARD MET WITH CHARNICK AND CAHN AND EXPLAINED
WHY GENERAL KISSINGER FELT HE DID NOT HAVE THE AUTHORITY TO AGREE TO THE
TERMS OF THE NEGOTIATED AGREEMENT. THE UNION REPRESENTATIVES STATED
THEY WOULD CONSIDER THE EXPLANATIONS AND ADVISE THE EMPLOYER'S CHIEF
NEGOTIATOR.
16. MANAGEMENT PRESENTED THE UNION OFFICIALS ON NOVEMBER 9 WITH A
COPY OF THE MODIFIED CONTRACT /14/ EMBODYING THE TWENTY CHANGES MADE BY
GENERAL KISSINGER, AND ATTACHED THERETO WAS A SIGNATURE PAGE CONTAINING
THE SIGNATURES OF KISSINGER AND PRITCHARD. COMPLAINANT UNION REFUSED TO
SIGN THIS DOCUMENT. IT CONTENDED THIS WAS A DIFFERENT CONTRACT THAT
RAISED NEW ITEMS WHICH WOULD REOPEN ALL NEGOTIATIONS, SINCE MAJOR
CONCESSIONS HAD BEEN MADE BY THE UNION TO GAIN OBJECTIVES NOW TAKEN BACK
BY THE EMPLOYER. SOME OF THESE MATTERS WERE (A) NOTICE DURING A
REDUCTION IN FORCE, (B) COMMITMENTS BY MANAGEMENT TO TRAIN EMPLOYEES IN
THE EVENT OF A RIF, (C) CAREER COMPETITIVE AREAS, AND (D) CONTRACTING
OUT BY MANAGEMENT OF WORK DONE BY UNIT EMPLOYEES.
IT IS CONTEMPLATED, UNDER SECTION 11 OF THE ORDER, THAT AN AGENCY AND
A REORGANIZED UNION SHALL MEET AND CONFER WITH THE AIM OF NEGOTIATING A
COLLECTIVE BARGAINING AGREEMENT. ALTHOUGH LIMITATIONS ARE PLACED ON
MATTERS WHICH MAY PROPERLY BE NEGOTIATED, PERMISSIBLE SUBJECTS MAY FORM
THE CONTENT OF A CONTRACT WHEN AGREED UPON BETWEEN THE PARTIES.
FURTHER, THE OBLIGATION TO MEET AND CONFER CARRIES WITH IT THE DUTY TO
REDUCE TO WRITING, AND SIGN, THE TERMS AND CONDITIONS OF EMPLOYMENT
ASSENTED TO AND FINALIZED, DURING SUCH NEGOTIATIONS. WHILE THERE IS NO
REQUIREMENT TO AGREE ON PROPOSALS OR CONCESSIONS, A PARTY MAY NOT
PROPERLY REFUSE TO SIGN AN AGREEMENT ONCE IT IS REACHED. SUCH REFUSAL
IS VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER. HEADQUARTERS, U.S. ARMY
AVIATION SYSTEMS COMMAND, A/SLMR NO. 168.
IN THE CASE AT BAR COMPLAINANT MAINTAINS SUCH AN AGREEMENT WAS
REACHED AND THAT MANAGEMENT WRONGFULLY REFUSED TO THEREAFTER SIGN IT.
PRESENTED FOR DETERMINATION ARE TWO ISSUES: (1) WHETHER, AFTER EXTENDED
BARGAINING NEGOTIATIONS, THE PARTIES AGREED UPON THE TERMS AND
CONDITIONS OF EMPLOYMENT AS EMBODIED IN AN AGREEMENT WHICH RESPONDENT
REFUSED TO SIGN; (2) IF SO, MAY MANAGEMENT JUSTIFY ITS REFUSAL ON THE
GROUND THAT ITS DIRECTOR WAS ENTITLED TO DISAPPROVE THE AGREEMENT, WITH
IMPUNITY, UNDER A CIVILIAN PERSONNEL REGULATION REQUIRING HIS SIGNATURE
BEFORE BEING FORWARDED TO HIGHER APPROVAL AUTHORITY.
(1) A REVIEW OF THE RECORD FACTS, AND THE SUPPORTING DATA, CONVINCES
ME THAT THE PARTIES, AFTER NEGOTIATING FOR OVER A YEAR, HAD AGREED UPON
THE SUBSTANTIVE TERMS OF A PROPOSED AGREEMENT. ALTHOUGH THEY HAD
REACHED AN IMPASSE AS TO SIX ITEMS, COMPLAINANT AND RESPONDENT AGREED TO
SIGN A CONTRACT EXCLUDING THESE MATTERS, WITH THE FURTHER MUTUAL
UNDERSTANDING THAT THE IMPASSE ITEMS WOULD BE EMBODIED IN A SUPPLEMENTAL
AGREEMENT. ALL OTHER PROVISIONS, WHICH WERE CONTAINED IN THE "AUGUST 14
CONTRACT", HAD BEEN PROPOSED BY THE UNION AND INITIALED BY PRITCHARD,
CHIEF NEGOTIATOR FOR MANAGEMENT.
AT THE TIME THAT PRITCHARD MET WITH VICE DIRECTOR WILLIAMS ON
SEPTEMBER 28 TO REVIEW THE AFORESAID CONTRACT, THERE HAD BEEN COMPLETE
ACCEPTANCE OF ALL CONTRACT TERMS EXCEPT FOR THE IMPASSE MATTERS WHICH
WERE SET ASIDE FOR A SEPARATE AGREEMENT. SINCE WILLIAMS DESIRED TO
CHANGE SIX PROVISIONS, PRITCHARD OBTAINED CHARNICK'S CONSENT TO
NEGOTIATE /15/ SAID MATTER. FOUR OF THESE WERE SENT TO CHARNICK BY
PRITCHARD ON OCTOBER 3, AS REVISED, WITH A NOTE THAT MANAGEMENT
UNDERSTOOD THEY WERE ACCEPTABLE WITH PRITCHARD'S SIGNATURE. THE FIFTH
WAS ACCEPTED AT A LATER DATE IN REVISED FORM. THUS, EXCEPT FOR THE
SIXTH ITEM AND THE IMPASSE SUBJECT, ALL TERMS AND CONDITIONS - AS
EXPRESSED IN THE "AUGUST 14 CONTRACT" - WERE AGREED UPON PRIOR TO
PRITCHARD'S MEETING WITH DIRECTOR KISSINGER ON OCTOBER 9 AND 10. THE
FAILURE TO RENEGOTIATE THE SIXTH PROVISION DOES NOT MILITATE AGAINST A
FINDING THAT THE TERMS AND CONDITIONS HAD BEEN ACCEPTED BY THE PARTIES.
THIS PROVISION WAS, ACCORDING TO RESPONDENT, MINOR IN NATURE AND HAD
BEEN ACCEPTED BY MANAGEMENT DURING NEGOTIATIONS.
ACCORDINGLY, I FIND AND CONCLUDE THAT THE PARTIES HERETO HAD ON
AUGUST 14, REACHED ACCORD AND ON ALL EMPLOYMENT MATTERS TO BE INCLUDED
IN THIS FINALIZED AGREEMENT, AS MODIFIED THROUGH RENEGOTIATION IN
OCTOBER. FURTHER, THAT - EXCEPT FOR THE 6 IMPASSE ITEMS TO BE PART OF A
SEPARATE CONTRACT - NO SUBSTANTIVE ISSUES WERE UNRESOLVED BY OCTOBER 9
WHEN PRITCHARD MET WITH DIRECTOR KISSINGER.
(2) IN DETERMINING WHETHER THE LOCAL ACTIVITY HEAD COULD PROPERLY
DISAPPROVE OF THE AGREEMENT REACHED DURING NEGOTIATIONS, IT IS ESSENTIAL
TO EXAMINE THE MEMORANDUM GOVERNING THE BARGAINING SESSIONS AS WELL AS
APPLICABLE LAW OR REGULATIONS. THUS, THE MOU HEREIN CLEARLY RECITES IN
SECTION II, THAT THE CHIEF NEGOTIATOR FOR THE ACTIVITY CHIEF SHALL BE
AUTHORIZED TO NEGOTIATE ALL ASPECTS OF EMPLOYER-MANAGEMENT RELATIONS,
SUBJECT TO NEGOTIATION UNDER THE ORDER AND THAT ARE UNDER CONTROL OF THE
ACTIVITY CHIEF. MOREOVER, IN ADDITION TO BEING THE OFFICIAL SPOKESMAN
FOR, HIS SIDE, EACH CHIEF NEGOTIATOR IS AUTHORIZED AND REQUIRED, UNDER
SECTION I(2)(C), UPON REACHING AGREEMENT RE EACH ARTICLE, TO SIGNIFY
SUCH AGREEMENT BY INITIALING THE AGREED-UPON ITEM.
THUS, IT IS APPARENT THAT PRITCHARD WAS VESTED WITH COMPLETE
AUTHORITY TO BIND THE RESPONDENT IN ITS NEGOTIATIONS WITH THE UNION.
THE MOU WAS SIGNED BY THE PRIOR TRI-TAC DIRECTOR, BRIGADIER GENERAL
RICE, AND THE DOCUMENT LEAVES NO DOUBT THAT PRITCHARD, AS THE CHIEF
NEGOTIATOR FOR MANAGEMENT, WAS CLOAKED WITH AUTHORITY TO NEGOTIATE AND
AGREE UPON TERMS OF A CONTRACT ON BEHALF OF MANAGEMENT.
RESPONDENT ASSERTS THAT, NOTWITHSTANDING THE FACT THAT THE CHIEF
NEGOTIATORS HAD AGREED UPON THE TERMS OF A PROPOSED CONTRACT - AND THIS
IS UNDENIED - THE DIRECTOR HAD THE RIGHT TO DISAPPROVE THE CONTRACT AND
MAKE CHANGES THEREIN. THIS POSITION IS POSTURED ON CIVILIAN PERSONNEL
REGULATION 700 WHICH PROVIDES THAT THE ACTIVITY COMMANDER IS THE LOCAL
APPROVAL AUTHORITY AND HIS SIGNATURE IS REQUIRED ON A DOCUMENT BEFORE IT
IS FORWARDED TO HIGHER AUTHORITY FOR APPROVAL.
CONSISTENCY WITH THE ORDER AND THE PRECEPTS GOVERNING LABOR
MANAGEMENT RELATIONS REQUIRES THAT SUCH LOCAL APPROVAL BE, IN EFFECT, A
MINISTERIAL ACT. THE SAID REGULATION WOULD MAKE A MOCKERY OF
NEGOTIATIONS IF THE LOCAL DIRECTOR, HAVING KNOWLEDGE THAT THE ACTIVITY'S
CHIEF NEGOTIATOR IS ENGAGED IN BINDING AND FINAL BARGAINING SESSIONS
WITH THE UNION, WERE PERMITTED TO NEGATE THE FRUITS OF THE NEGOTIATOR'S
EFFORTS. WHILE THE ASSISTANT SECRETARY IS NOT BOUND TO FOLLOW THE
PRIVATE SECTOR, CASES DEALING WITH SITUATIONS ANALOGOUS TO THE INSTANT
MATTER HAVE BEEN DECIDED BY THE NATIONAL LABOR RELATIONS BOARD. IN
INDUSTRIAL WIRE PRODUCTS CORP., 177 NLRB 328, THE EMPLOYER AND UNION
AGREED ON THE TERMS OF A CONTRACT WHICH WAS REPUDIATED BY THE COMPANY
PRESIDENT, AND THE LATTER PROPOSED CHANGES IN SUBSTANTIVE TERMS
PREVIOUSLY ACCEPTED. THE BOARD FOUND THE REFUSAL TO EXECUTE A CONTRACT
EMBODYING A STIPULATION, SIGNED BY THE EMPLOYER'S BARGAINING AGENCY AND
THE UNION, WAS A REFUSAL TO BARGAIN IN GOOD FAITH. AS THE TRIAL
EXAMINER STATED, "IT WOULD BE A TRAVESTY UPON THE RIGHT OF RATIFICATION
TO PERMIT ONE WHOSE AGENT HAS AGREED TO A CONTRACT TO EXERCISE A RIGHT
TO DISAPPROVAL UNDER THESE CIRCUMSTANCES." SUCH A CONCLUSION IS
PARTICULARLY APPLICABLE WHERE, AS HERE, THE RESPONDENT ENDOWED PRITCHARD
WITH AUTHORITY TO ENTER INTO BINDING CLAUSES, AND THEN PERMITS THE
COMPLAINANT TO ASSUME THAT A MEANINGFUL AND FINAL CONTRACT HAD BEEN
AGREED UPON. SEE COLONY FURNITURE COMPANY, 144 NLRB 1582.
THE THEORY ENUNCIATED IN THE PRIVATE SECTOR SHOULD HAVE APPLICABILITY
IN THE PUBLIC AREA. COLLECTIVE BARGAINING SHOULD RECOGNIZE THE SAME
PRINCIPLES OF NEGOTIATION WHICH ARE CONDUCTED FOR THE PURPOSE OF
REACHING AN AGREEMENT. ANY EMPLOYER WHO REFUSES TO HONOR WITH HIS
SIGNATURE AN AGREEMENT HE HAS MADE WITH A LABOR ORGANIZATION DISCREDITS
THE UNION AND IMPAIRS THE BARGAINING PROCESS. H. J. HEINZ COMPANY &
NLRB, 311 U.S. 514. IN THE CASE AT BAR, IF THE RESPONDENT MAY RENEGE ON
THE AGREED-UPON TERMS ON THE GROUND THAT PRITCHARD DID NOT HAVE FINAL
AUTHORITY, ONE MUST CONCLUDE THE EMPLOYER NEVER BARGAINED IN GOOD FAITH
AB INITIO. FOR TO PERMIT AN AGENT TO CONDUCT NEGOTIATIONS WITH THE
EXPRESS, AS WELL AS IMPLIED, UNDERSTANDING THAT HE HAS AUTHORITY TO
NEGOTIATE AN AGREEMENT DICTATES THAT ANY AGREEMENT REACHING BY THE
NEGOTIATORS BE ACCEPTED BY THE EMPLOYER. ALLOWING KISSINGER TO
UNILATERALLY CHANGE 20 OF THE TERMS PREVIOUSLY AGREED TO MAKE THE
TRAVESTY OF THE ENTIRE BARGAINING PROCESS WHICH, IN THE INSTANT MATTER,
CONSUMED NEARLY TWO YEARS.
NOTE IS TAKEN THAT SECTION 15 OF THE ORDER MAKES PROVISION FOR AN
AGREEMENT OF THIS NATURE TO BE APPROVED BY THE HEAD OF THE AGENCY, OR
HIS DESIGNEE. FURTHER, THAT SUCH AGREEMENT SHALL BE APPROVED, IF NOT
CONTRARY TO APPLICABLE LAWS, EXISTING AGENCY POLICIES AND REGULATIONS,
AND OTHER APPROPRIATE REGULATIONS. BUT RESPONDENT DOES NOT RAISE
SECTION 15 AS A DEFENSE TO ITS CONDUCT HEREIN, AND THE HEAD OF THE
AGENCY DID NOT REFUSE TO APPROVE THIS AGREEMENT FOR THE REASONS SET
FORTH THEREIN. APART FROM WHETHER OR NOT THIS AGREEMENT REQUIRED
APPROVAL UNDER SECTION 15, THE ACTIONS OF KISSINGER WERE INTENDED TO BE
SUBSTITUTED FOR THOSE OF PRITCHARD, AND HE COULD NOT, ANY MORE THAN THE
CHIEF NEGOTIATOR, DISAVOW THE AGREEMENT IN GOOD FAITH AFTER REACHING
ACCORD THEREON. CPR 700 SHOULD NOT BE UTILIZED TO REPLACE THE
APPLICABLE SECTION OF THE ORDER, AND I CONSTRUE IT AS CALLING FOR AN
ADMINISTRATIVE APPROVAL AFTER THE ACTIVITY'S NEGOTIATOR HAS NEGOTIATED
AN AGREEMENT ON BEHALF OF THE ACTIVITY.
ACCORDINGLY, AND IN VIEW OF THE FOREGOING, I CONCLUDE THAT RESPONDENT
HAS REFUSED TO CONFER, CONSULT, AND NEGOTIATE IN GOOD FAITH UNDER
SECTION 19(A)(6) OF THE ORDER BY REFUSING TO SIGN THE "AUGUST 14
CONTRACT" NEGOTIATED AND AGREED UPON BY THE PARTIES.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT WHICH IS
VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER, I RECOMMEND THE ASSISTANT
SECRETARY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSES
OF EXECUTIVE ORDER 11491, AS AMENDED.
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED AND
SECTION 203.52(A) OF THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR
FOR LABOR-MANAGEMENT RELATIONS HEREBY ORDERS THE JOINT TACTICAL
COMMUNICATIONS OFFICE (TRI-TAC), DEPARTMENT OF DEFENSE, FORT MONMOUTH,
NEW JERSEY SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO SIGN THE NEGOTIATED COLLECTIVE BARGAINING AGREEMENT
AS AGREED TO ON AUGUST 14, 1973, AND MODIFIED BY MUTUAL CONSENT ON OR
ABOUT OCTOBER 4, 1973, WITH NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) UPON REQUEST, SIGN THE COLLECTIVE BARGAINING AGREEMENT NEGOTIATED
AND AGREED TO ON AUGUST 14, 1973, AND MODIFIED BY MUTUAL CONSENT ON OR
ABOUT OCTOBER 4, 1973, WITH NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476.
(B) POST AT ITS FACILITY 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 DIRECTOR 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
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 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: MARCH 15, 1974
WASHINGTON, D.C.
WE WILL NOT REFUSE TO SIGN THE NEGOTIATED COLLECTIVE BARGAINING
AGREEMENT AS AGREED TO ON AUGUST 14, 1973, AND MODIFIED BY MUTUAL
CONSENT ON OR ABOUT OCTOBER 4, 1973, WITH NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 476.
WE WILL, UPON REQUEST, SIGN THE NEGOTIATED COLLECTIVE BARGAINING
AGREEMENT AS AGREED TO ON AUGUST 14, 1973, AND MODIFIED BY MUTUAL
CONSENT ON OR ABOUT OCTOBER 4, 1973, WITH NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 476.
DATED . . . BY: . . . (SIGNATURE) . . . TITLE
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 OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS: ROOM 3515, 1515
BROADWAY, NEW YORK, NEW YORK 10036.
/1/ OFFICIAL NOTICE IS TAKEN THAT THE INSTANT CASE WAS CONSOLIDATED
WITH CASE NO. 3223(CA) BY ORDER ISSUED ON DECEMBER 17, 1973. IN VIEW OF
THE DISTINCT AND UNRELATED ISSUES INVOLVED IN BOTH MATTERS, AN ORDER
SEVERING CASES NOS. 3223(CA) AND 3462(CA) WAS ISSUED BY THE ASSISTANT
REGIONAL DIRECTOR ON JANUARY 8, 1974.
/2/ COMPLAINANT'S EXHIBIT 1.
/3/ GENERAL RICE, WHO APPOINTED PRITCHARD AS CHIEF NEGOTIATOR IN
NOVEMBER OR DECEMBER 1971, SUBSEQUENTLY LEFT TRI-TAC AND WAS NO LONGER
THE DIRECTOR DURING THE BARGAINING NEGOTIATIONS.
/4/ COMPLAINANT'S EXHIBIT 2.
/5/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER MENTIONED ARE
IN 1973.
/6/ RESPONDENT'S EXHIBIT 2.
/7/ COMPLAINANT'S EXHIBIT 4.
/8/ COMPLAINANT'S EXHIBIT 5.
/9/ COMPLAINANT'S EXHIBIT 3.
/10/ RESPONDENT'S EXHIBIT 4.
/11/ CHARNICK REFUSED TO SIGN-OFF THESE ITEMS SINCE THE UNION HAD
WRITTEN A LETTER DATED SEPTEMBER 18 CHARGING THE RESPONDENT WITH AN
UNFAIR LABOR PRACTICE.
/12/ COMPLAINANT'S EXHIBIT 8.
/13/ RESPONDENT'S EXHIBIT 5.
/14/ COMPLAINANT'S EXHIBIT 9.
/15/ THIS WAS PERMITTED UNDER I1(C) OF THE MOU.
4 A/SLMR 395; P. 356; CASE NO. 32-3223(CA); MAY 31, 1974.
U.S. ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY
A/SLMR NO. 395
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476 (COMPLAINANT)
AGAINST THE U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY
(RESPONDENT). THE COMPLAINANT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY REFUSING TO CONFER
AND CONSULT WITH THE COMPLAINANT WITH RESPECT TO THE PLANNING AND
ANNOUNCEMENT OF AN IMPENDING REDUCTION-IN-FORCE (RIF) AND THE FAILURE TO
FURNISH RELEVANT INFORMATION WHICH WAS REQUESTED BY THE COMPLAINANT IN
CONNECTION WITH THAT ACTION.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT ALTHOUGH THE COMPLAINANT
WAS ENTITLED TO RELEVANT AND NECESSARY INFORMATION IN CONNECTION WITH A
REORGANIZATION AND RIF UNDERTAKEN BY THE RESPONDENT, THE RESPONDENT HAD
NOT VIOLATED THE ORDER IN THIS REGARD. THUS, AFTER BEING INFORMED OF
THE REORGANIZATION AND PENDING RIF, THE COMPLAINANT, BY LETTER, ASKED
FOR CERTAIN INFORMATION. THE ADMINISTRATIVE LAW JUDGE FOUND THAT 9 OF
THE ORIGINAL 11 ITEMS REQUESTED BY THE COMPLAINANT WITH RESPECT TO THE
IMPENDING RIF WERE SUPPLIED TO THE LATTER AND THAT THE RECORD DID NOT
SUPPORT THE ALLEGATION THAT THE RESPONDENT WILLFULLY WITHHELD THE OTHER
TWO ITEMS REQUESTED.
THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT ALTHOUGH UNDER SECTION
11(B) AND 12(B)(2) OF THE ORDER THE RESPONDENT WAS NOT OBLIGATED TO
CONSULT AS TO THE RIGHT TO REASSIGN OR RIF EMPLOYEES, IT DID HAVE A DUTY
TO MEET AND CONFER REGARDING THE PROCEDURES TO BE USED AND ANY IMPACT
UPON EMPLOYEES. THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE
RESPONDENT MET ITS OBLIGATION IN THIS RECORD. IN REACHING THIS FINDING,
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT MET ITS
RESPONSIBILITY WITH RESPECT TO CONFERRING WITH THE EMPLOYEES' BARGAINING
REPRESENTATIVE THROUGH THE BRIEFINGS CONDUCTED BY THE RESPONDENT BETWEEN
JANUARY 15 AND APRIL 17, 1973 - TO WHICH REPRESENTATIVES OF THE
COMPLAINANT AND OTHER AFFECTED LABOR ORGANIZATIONS WERE INVITED - AS THE
BRIEFINGS PROVIDED THE COMPLAINANT WITH SUFFICIENT NOTIFICATION AND
INFORMATION REGARDING THE CONTEMPLATED ACTION. THE ADMINISTRATIVE LAW
JUDGE CONCLUDED THAT WHEN THE RESPONDENT COMPLIED WITH ITS
RESPONSIBILITY TO NOTIFY THE COMPLAINANT OF THE PENDING ACTION, IT WAS
THEN INCUMBENT UPON THE COMPLAINANT TO REQUEST MANAGEMENT TO MEET AND
CONFER REGARDING THE METHODS TO BE ADOPTED OR THE IMPACT OF THE DECISION
UPON EMPLOYEES, AND THAT SUCH A REQUEST WAS NEVER MADE. IN THESE
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE FAILURE
OF THE COMPLAINANT TO REQUEST TIMELY THAT THE RESPONDENT MEET AND CONFER
REGARDING PROCEDURES AND IMPACT PRECLUDED A FINDING THAT THE RESPONDENT
HAD VIOLATED ITS BARGAINING OBLIGATIONS UNDER THE ORDER.
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, CONCLUSION AND
RECOMMENDATION THAT THE COMPLAINT BE DISMISSED.
U.S. ARMY ELECTRONICS COMMAND,
FORT MONMOUTH, NEW JERSEY
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 476
ON APRIL 4, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK 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 HE
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 THIS CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 32-3223(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 31, 1974
/1/ ALTHOUGH THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT
DID NOT VIOLATE SECTION 19(A)(6) OF THE ORDER, HE MADE NO SPECIFIC
FINDINGS WITH RESPECT TO THE ALLEGATION THAT THE RESPONDENT'S CONDUCT
ALSO VIOLATED SECTION 19(A)(1). MOREOVER, IT IS CLEAR FROM A READING OF
HIS REPORT AND RECOMMENDATIONS THAT THE ADMINISTRATIVE LAW JUDGE WAS OF
THE VIEW THAT FURTHER PROCEEDINGS UNDER SECTION 19(A)(1) ALSO WERE
UNWARRANTED. UNDER THESE CIRCUMSTANCES, AND AS THE EVIDENCE DOES NOT
SUPPORT THE 19(A)(1) ALLEGATION IN THE INSTANT COMPLAINT, SUCH
ALLEGATION IS HEREBY DISMISSED.
IN THE MATTER OF
U.S. ARMY ELECTRONICS COMMAND
FORT MONMOUTH, NEW JERSEY
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 476
DOROTHY K. LIGHT, ESQ.
BUILDING 492A
U.S. ARMY ELECTRONICS COMMAND
FORT MONMOUTH, NEW JERSEY
MICHAEL SUSSMAN, ESQ.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
THE PROCEEDING HEREIN AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER), PURSUANT TO A NOTICE OF HEARING ON COMPLAINT
ISSUED ON NOVEMBER 2, 1973 BY THE REGIONAL ADMINISTRATOR OF THE UNITED
STATES DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION,
NEW YORK REGION.
ON APRIL 23, 1973 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 476
(HEREIN CALLED THE COMPLAINANT) FILED A COMPLAINT AGAINST U.S. ARMY
ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY (HEREIN CALLED THE
RESPONDENT). THE COMPLAINT ALLEGED VIOLATIONS BY RESPONDENT OF
19(A)(1), (2), (3), (4), (5), AND (6) OF THE ORDER BASED ON (A) THE
REFUSAL TO CONFER AND CONSULT WITH COMPLAINANT IN RESPECT TO THE
PLANNING AND ANNOUNCEMENT OF AN IMPENDING REDUCTION-IN-FORCE (RIF), (B)
THE FAILURE TO FURNISH RELEVANT INFORMATION WHICH WAS REQUESTED BY
COMPLAINANT IN CONNECTION WITH THE INTENDED RIF. /2/
A HEARING /3/ WAS HELD BEFORE THE UNDERSIGNED ON JANUARY 8, 1974 AT
FORT MONMOUTH, NEW JERSEY. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED
BRIEFS WHICH HAVE BEEN DULY CONSIDERED.
COMPLAINANT CONCEDES THAT AN ACTIVITY NEED NOT CONSULT WITH A UNION
AS TO WHETHER A RIF OR REASSIGNMENT SHALL TAKE PLACE. HOWEVER, IT
CONTENDS THAT AN OBLIGATION EXISTS TO BARGAIN REGARDING THEIR
IMPLEMENTATION - THE PROCEDURES TO BE FOLLOWED - AND THE IMPACT UPON THE
EMPLOYEES IN THE UNIT BY REASON OF SUCH ACTION. THE UNION FURTHER URGES
THAT RESPONDENT FAILED TO FURNISH RELEVANT INFORMATION, AS REQUESTED,
PERTAINING TO THE RIF AND THE REASSIGNMENTS - ALL IN VIOLATION OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER.
RESPONDENT MAINTAINS THERE IS NO OBLIGATION ON ITS PART TO CONFER AND
CONSULT REGARDING THE RIF OR ITS IMPLEMENTATION; THAT, ASSUMING
ARGUENDO, SUCH A DUTY EXISTS, IT HAS AFFORDED THE UNION AMPLE
OPPORTUNITY TO BARGAIN ON THE IMPLEMENTATION AND IMPACT THEREOF; AND,
FINALLY, THAT IT HAS SUPPLIED ALL AVAILABLE INFORMATION REQUESTED BY THE
COMPLAINANT. VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER ARE
DENIED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN COMPLAINANT WAS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF VARIOUS EMPLOYEES ATTACHED TO THE UNITED
STATES ARMY ELECTRONICS COMMAND (ECOM) AT FORT MONMOUTH, NEW JERSEY.
WITHIN THE ECOM COMPLAINT REPRESENTED APPROXIMATELY 300 EMPLOYEES WHO
WERE IN THE FOLLOWING UNITS: (A) PICTORIAL AUDIO VISUAL BRANCH, (B)
RESEARCH & DEVELOPMENT TECHNICAL SUPPORT ACTIVITY, (C) ATMOSPHERIC
SCIENCES LABORATORY, AND (D) INTERNAL SECURITY DIVISION (GUARDS).
2. APPROXIMATELY 6000 CIVILIAN EMPLOYEES WERE ASSIGNED TO ECOM, AND
VARIOUS DIFFERENT UNITS THEREOF WERE REPRESENTED BY OTHER UNIONS AS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE) AND INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS (IAF).
3. ON JANUARY 11, 1973 /4/ AT FORT MONMOUTH, THE ARMY ANNOUNCED A
FORTHCOMING REORGANIZATION. THE ARMY MATERIAL COMMAND ADOPTED THE
TOAMAC PLAN - THE OPTIMUM ARMY MATERIAL COMMAND - TO MAXIMIZE ITS
MANAGERIAL EFFECTIVENESS. THIS PLAN CALLED FOR THE CLOSURE OF THE
PHILADELPHIA, PENNSYLVANIA FACILITY AND THE MOVEMENT OF MATERIAL
MANAGEMENT PERSONNEL FROM PHILADELPHIA TO FORT MONMOUTH. IT PROVIDED
ALSO FOR CONSOLIDATIONS, REALIGNMENTS, AND REDUCTIONS AS PART OF THE NEW
ARMY STRUCTURE. AT THE TIME OF THIS FIRST OFFICIAL NOTIFICATION THE
ARMY CONTEMPLATED THAT THE REORGANIZATION WOULD BE COMPLETED BY JUNE 30,
1973.
4. MANAGEMENT HELD A MEETING ON JANUARY 15 IN ORDER TO BRIEF THE
VARIOUS UNIONS, INCLUDING COMPLAINANT, REGARDING THE REORGANIZATION AND
THE RESULTANT RIF AT FORT MONMOUTH. THE LABOR ORGANIZATIONS
REPRESENTING EMPLOYEES AFFECTED BY THE IMPENDING MOVE WERE INVITED TO
ATTEND. COMPLAINANT WAS REPRESENTED BY PATRICK CROWELL, VICE-PRESIDENT
OF THE LOCAL AND MATTHEW E. POZNAR, EXECUTIVE MEMBER OF THE UNION, WHO
ATTENDED IN PLACE OF HERBERT CAHN, ITS PRESIDENT. SEVERAL OTHER MEMBERS
OF NFFE WERE PRESENT, AS WELL AS MEMBERS OF OTHER UNIONS. TWO MEN FROM
ARMY MATERIAL COMMAND BRIEFED THE REPRESENTATIVES ON THE CONSOLIDATION
AND DESCRIBED THE DIVISION OF THE ARMY INTO THREE AREAS. EXPLANATIONS
WERE GIVEN REGARDING THE CONSOLIDATION OF ACTIVITIES, THE ANTICIPATED
TRANSFERS OF PERSONNEL, AS WELL AS A STATEMENT OF WHICH ORGANIZATIONS
INQUIRIES FROM THE UNIONS AT THE END OF THE MEETING, AND CROWELL ASKED A
QUESTION RE THE EFFECT THE CONSOLIDATION MIGHT HAVE UPON THE NUMBER OF
EMPLOYEES COMING INTO THE AREA. REPRESENTATIVES FROM AFGE ASKED
QUESTIONS RE THE IMPACT ON ECOM AS A RESULT OF THE TRANSFERS FROM
PHILADELPHIA TO FORT MONMOUTH, AND THEY QUERIED AS TO WHY THE
TECHNICIANS WERE BEING "HIT SO HARD." NO SPECIFIC ANSWERS WERE GIVEN AS
THIS MEETING WAS A GENERAL DISCUSSION OF THE PROPOSED REORGANIZATION.
5. BY LETTER /5/ DATED JANUARY 16, CAHN WROTE COLONEL M. HISAKA,
DIRECTOR OF PERSONNEL, TRAINING AND FORCE DEVELOPMENT REQUESTING 11
DIFFERENT ITEMS, INCLUDING SUCH INFORMATION AS RETENTION REGISTERS,
LABOR AGREEMENTS WITH OTHER UNIONS, LISTS OF EMPLOYEES, FACT SHEETS AND
A MANAGEMENT INFORMATION REPORT SHOWING ENCUMBERED AND NON-ENCUMBERED
JOBS BY TDA PARAGRAPH AND LINE NUMBER.
6. BETWEEN APRIL AND JUNE RESPONDENT SUPPLIED ALL OF THE ITEMS
REQUESTED EXCEPT FOR (A) MANAGEMENT INFORMATION REPORT SHOWING
ENCUMBERED AND NON-ENCUMBERED JOBS BY TDA PARAGRAPH AND LINE - ITEM #4
IN THE UNION'S JANUARY 16 LETTER, AND (B)LISTING OF INCUMBENTS OF ALL
POSITIONS AT FORT MONMOUTH LISTED AS EXCESS TO TDA BUT CURRENTLY FUNDED.
ALSO, DURATION OF FUNDING - ITEM #11 OF THE UNION'S REQUEST.
CONFIRMING LETTERS /6/ FROM COLONEL HISAKA TO CAHN WERE WRITTEN
ENCLOSING REQUESTED INFORMATION TO THE UNION. COMPLAINANT RECEIVED THE
RETENTION REGISTER BY APRIL 17. PAUL T. COLEMAN, CHIEF OF
MANAGEMENT-EMPLOYEE RELATIONS, CIVILIAN PERSONNEL DIVISION, TESTIFIED
THAT, WHILE THERE ARE A LARGE NUMBER OF MANAGEMENT INFORMATION REPORTS
THERE IS NO REPORT CONTAINING THE SPECIFIC INFORMATION SOUGHT IN ITEM 4.
FURTHER, COLEMAN AVERRED HE KNEW OF NO CENTRALIZED SOURCE OF
INFORMATION PROVIDING RESPONDENT WITH THE KIND OF DATA SOUGHT IN ITEM 11
OF THE UNION'S REQUEST. INFORMATION WITH RESPECT TO WHICH EMPLOYEES
WERE AFFECTED BY THE RIF, THE NAME OF EACH UNIT INVOLVED AND THE NUMBER
TO BE RECEIVED IN EACH UNIT, WERE NOT FURNISHED THE COMPLAINANT.
7. MANAGEMENT CALLED AND HELD A MEETING ON MARCH 23 FOR UNION AND
EMPLOYER OFFICIALS. CROWELL ATTENDED ON BEHALF OF THE UNION AND SEVERAL
OTHER MEMBERS OF COMPLAINANT WERE PRESENT IN ADDITION TO REPRESENTATIVES
FROM AFGE AND THE IAF. MAJOR GENERAL HUGH FOSTER BRIEFED THEM ON A
LETTER /7/ HE INTENDED TO MAIL THE EMPLOYEES THAT DAY, INDICATING THE
GENERAL OVERALL EFFECT OF THE REDUCTION, HOW MANY WOULD BE AFFECTED, AND
WHAT THE AUTHORIZED STRENGTH WOULD BE. FOSTER STATED THAT BRIEFING
WOULD BE GIVEN IN THE VARIOUS COMMANDS OUTLINING HOW THE RIF WOULD
PROCEED, AND THAT INDIVIDUAL STEPS WOULD BE GIVEN TO THE EMPLOYEES
THROUGH BRIEFINGS IN THEIR PARTICULAR LOCATIONS. QUESTIONS WERE ASKED
BY UNION REPRESENTATIVES AS TO THE IMPACT EXPECTED BY THE TRANSFER FROM
PHILADELPHIA. NO SPECIFIC ANSWERS WERE GIVEN NOR DID THE MAJOR GENERAL
STATE WHICH MEMBERS OF ECOM WOULD BE "RIFFED." IT WAS MENTIONED BY
GENERAL FOSTER THAT HE WAS DIRECTED TO PROCEED WITH THE RIF AND IT HAD
TO BE COMPLETED BY THE SPECIFIED DATE OF JUNE 30.
8. THE MARCH 23 LETTER (COMPLAINANT'S EXHIBIT 4) WAS SENT TO ALL
ECOM EMPLOYEES, NOTIFYING /8/ THEM THE CONSOLIDATION OF PHILADELPHIA AND
FORT MONMOUTH ECOM ELEMENTS WOULD BE COMPLETED BY JUNE 30; THAT, TO
EFFECT THE TRANSFER, COMPETITIVE LEVELS AND REDUCTION-IN-FORCE REGISTERS
OF APPROPRIATE COMPETITIVE AREAS IN PHILADELPHIA AND FORT MONMOUTH HAVE
BEEN MERGED. IT ALSO STATED THAT SPECIFIC NOTICES OF PROPOSED PERSONNEL
ACTIONS, INCLUDING NECESSARY SEPARATIONS, WOULD BE RELEASED TO REACH
AFFECTED EMPLOYEES BY APRIL 25.
9. A LETTER /9/ DATED APRIL 16, WAS DISTRIBUTED BY MANAGEMENT TO ALL
EMPLOYEES, ADVISING THEM THAT THE REQUIREMENT TO EFFECTUATE THE
REORGANIZATION BY JUNE 30 WAS REMOVED. THE EMPLOYEES WERE NOTIFIED
THEREIN THAT THE REORGANIZATION AND PERSONNEL ACTIONS WOULD BE
CONSUMMATED BY MARCH 24, 1974; THAT SPECIFIC NOTICES WOULD BE GIVEN
EACH FORT MONMOUTH AND PHILADELPHIA EMPLOYEE AFFECTED BY THE
CONSOLIDATION BY MAY 31, THAT PHILADELPHIA EMPLOYEES DESIROUS OF
RELOCATING TO FORT MONMOUTH WOULD RECEIVE AN ADDITIONAL 60 DAYS NOTICE
PRIOR TO THE ACTUAL MOVE DATE THERETO; THAT EMPLOYEES DECLINING TO
TRANSFER WOULD RECEIVE A NOTICE OF PROPOSED SEPARATION WHICH WOULD BE
EFFECTIVE ON THE DATE THEIR FUNCTION IS TRANSFERRED TO FORT MONMOUTH.
10. ON APRIL 17 MANAGEMENT MET WITH THE REPRESENTATIVES OF VARIOUS
UNIONS, INCLUDING COMPLAINANT, TO DISCUSS THE EXTENSION, UNTIL MARCH 24,
1974 OF THE REORGANIZATION AND THE CONSOLIDATION. RESPONDENT EXPLAINED
THE IMPACT WOULD BE SPREAD OVER A LONGER PERIOD, AND THE EMPLOYEES WOULD
HAVE MORE OPPORTUNITY FOR OTHER PLACEMENT POSSIBILITIES. QUESTIONS WERE
ASKED BY THE UNION REPRESENTATIVES AND ANSWERS GIVEN BY MANAGEMENT
THERETO.
11. NO MEETINGS WERE HELD BETWEEN RESPONDENT AND COMPLAINANT
REGARDING THE REALIGNMENT AND CONSOLIDATION EXCEPT FOR THE BRIEFINGS
HEREINBEFORE REFERRED TO. THE SUBSTANCE OF ALL REQUESTS FOR
CONSULTATION IS CONTAINED IN THE EXHIBITS IN EVIDENCE HEREIN, ACCORDING
TO THE TESTIMONY OF UNION PRESIDENT CAHN.
12. THE NUMERICAL EFFECT UPON THE EMPLOYEES IN THOSE UNITS
REPRESENTED BY COMPLAINANT AT FORT MONMOUTH WERE AS FOLLOWS: (A)
PICTORIAL AUDIO VISUAL - 15 REASSIGNED TO ANOTHER JOB AT SAME GRADE;
(B) RESEARCH & DEVELOPMENT TECHNICAL SUPPORT - 7 ASSIGNED TO LOWER OR
SAME GRADE; (C) ATMOSPHERIC SCIENCES LAB - 2 REASSIGNED AT ANOTHER
GRADE; (D) INTERNAL SECURITY - NO CHANGES.
13. COLEMAN TESTIFIED, AND I FIND, THAT RESPONDENT, IN EFFECTING ITS
REORGANIZATION AND CONSEQUENT RIF, FOLLOWED A STANDARDIZATION
REDUCTION-IN-FORCE PROCEDURE WHICH IS SET FORTH IN THE FEDERAL PERSONNEL
MANUAL. THE PROVISIONS THEREIN DETERMINE WHO SHALL BE AFFECTED BY THE
RIF AND WHO SHALL RECEIVE INDIVIDUAL NOTICES. THE UNIONS HEREIN WERE
ASSURED THAT UNDER THIS PROCEDURE, WHICH HAS BEEN PURSUED OVER THE
YEARS, THE REGULATIONS OF THE FPM WOULD BE ADHERED TO AND THE DEPARTMENT
OF DEFENSE PRIORITY PLACEMENT PROGRAM WOULD BE FOLLOWED TO ASSIST
EMPLOYEES ADVERSELY AFFECTED.
IT IS CONTENDED BY THE UNION HEREIN THAT, IN AFFECTING THE
REORGANIZATION WITH ITS ATTENDANT CONSOLIDATION, REASSIGNMENTS AND RIF,
RESPONDENT ACTED IN DEROGATION OF COMPLAINANT AS THE BARGAINING
REPRESENTATIVE OF VARIOUS UNIT EMPLOYEES. FURTHER, IT IS ASSERTED THAT
MANAGEMENT ACTED UNILATERALLY IN THIS REGARD AND THUS WEAKENED "THE
IMAGE OF COMPLAINANT AS THE REPRESENTATIVE - ALL OF WHICH TENDED TO
DISCOURAGE MEMBERSHIP IN THE UNION." MORE SPECIFICALLY, THE UNION
MAINTAINS THAT (A) RESPONDENT FAILED TO FURNISH INFORMATION REQUESTED IN
RESPECT TO THE PLANNED REDUCTION-IN-FORCE, (B) THERE WAS NO MEANINGFUL
BARGAINING BY RESPONDENT REGARDING THE IMPLEMENTING PROCEDURES OR IMPACT
OF THE RIF.
(1) THE DOCTRINE IS WELL ENTRENCHED IN THE PRIVATE SECTOR THAT AN
EMPLOYER MUST FURNISH THE BARGAINING REPRESENTATIVE, UPON REQUEST,
RELEVANT AND NECESSARY INFORMATION TO PROVIDE INTELLIGENT REPRESENTATION
OF EMPLOYEES. F. W. WOOLWORTH CO., 109 NLRB 196, ENFD. 352 U.S. 938.
THIS VIEW HAS BEEN EMBRACED, IN THE FEDERAL SECTOR, BY THE ASSISTANT
SECRETARY IN DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, A/SOMR NO. 323.
WHILE THE MATTER WAS REFERRED TO THE FEDERAL LABOR RELATIONS COUNCIL,
THE ASSISTANT SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE THAT A
UNION IS ENTITLED TO RELEVANT AND NECESSARY INFORMATION IN CONNECTION
WITH THE PROCESSING OF GRIEVANCES IN ORDER TO RESPONSIBLY REPRESENT
EMPLOYEES IN THE UNIT.
DESPITE THE FACT THAT RESPONDENT WOULD BE REQUIRED, UNDER THE ORDER,
TO FURNISH SUCH DATA TO COMPLAINANT IN CONNECTION WITH THE CONSOLIDATION
AND RIF HEREIN, I DO NOT FIND THAT IT HAS VIOLATED THE ORDER IN THIS
REGARD. THE RECORD REFLECTS THAT 9 OF THE 11 ITEMS REQUESTED BY THE
UNION IN CAHN'S LETTER OF JANUARY 16 WERE SUPPLIED TO THE COMPLAINANT.
THE EMPLOYER INSISTS, AND IT DOES NOT APPEAL OTHERWISE, THAT THERE IS NO
DESIGNATION SHOWING "ENCUMBERED AND UN-ENCUMBERED JOBS BY TDA PARAGRAPH
AND LINE NUMBER," NOR IS THERE ANY CENTRALIZED SOURCE OF INFORMATION
PROVIDING IT WITH A "LISTING OF INCUMBENTS OF ALL AS EXCESS TO TDA BUT
CURRENTLY FUNDED, ALSO DURATION OF FUNDING." WHILE IT WOULD HAVE BEEN
PREFERABLE FOR MANAGEMENT TO HAVE STATED BEFOREHAND TO THE UNION THAT
SUCH INFORMATION WAS NOT AVAILABLE IN THE FORM REQUESTED, THE
UNAVAILABILITY OF SAID DATA MILITATES AGAINST CONCLUDING THAT RESPONDENT
WAS DESIROUS OF FRUSTRATING THE BARGAINING PROCESS. FURTHER, THERE WAS
NO ATTEMPT BY COMPLAINANT TO MODIFY ITS REQUEST IN THIS REGARD OR TO
SEEK DISCUSSION AS TO THESE PARTICULAR ITEMS.
IN RESPECT TO THE FAILURE BY THE EMPLOYER TO ADVISE COMPLAINANT AS TO
THE PERSONS AFFECTED BY THE RIF, MANAGEMENT INDICATED, AT THE VARIOUS
BRIEFINGS, THAT IT DID NOT HAVE INFORMATION AS TO WHICH INDIVIDUALS
WOULD BE INVOLVED. IT WAS ALSO STATED TO THE UNION REPRESENTATIVES THAT
THE LOCAL COMMANDS WOULD HAVE THIS DATA AT A LATER DATE AND APART FROM
THE FACT THAT THIS INFORMATION WAS NEVER SPECIFICALLY INCLUDED IN THE
UNION'S WRITTEN REQUEST, IT DOES NOT APPEAR THAT MANAGEMENT ATTEMPTED TO
CONCEAL FROM COMPLAINANT THE NAMES OF EMPLOYEES AFFECTED BY THE
CONSOLIDATION. I AM NOT PERSUADED THAT THERE WAS A SPECIFIC REQUEST BY
THE UNION FOR, A CONCOMITANT REFUSAL BY THE EMPLOYER TO GIVE, THE NAMES
OF THOSE INDIVIDUALS DIRECTLY INVOLVED IN THE REALIGNMENT AT ECOM.
(2) CONCEDING THAT UNDER SECTION 11(B) AND 12(B)(2) OF THE ORDER
THERE WAS NO OBLIGATION TO CONSULT AS TO THE RIGHT TO REASSIGN OR "RIF"
EMPLOYEES, COMPLAINANT MAINTAINS THERE IS A DUTY ON THE PART OF
MANAGEMENT TO MEET AND CONFER REGARDING THE PROCEDURES TO BE USED AND
ANY IMPACT UPON EMPLOYEES. AS PRIMARY SUPPORT FOR ITS CONTENTION, THE
UNION ADVERTS TO THE CASE OF DEPARTMENT OF NAVY, BUREAU OF MEDICINE &
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289 WHEREIN
THE ASSISTANT SECRETARY CONCLUDED THAT MANAGEMENT MUST CONSULT ON THE
METHOD AND IMPACT OF CARRYING OUT A RIF BEFORE FINAL ACTION IS TAKEN.
IN THE GREAT LAKES NAVAL HOSPITAL CASE, SUPRA, MANAGEMENT ISSUED 33
RIF NOTICES TO EMPLOYEES WITHOUT NOTIFYING THEIR BARGAINING
REPRESENTATIVE AND PROVIDING IT WITH AN OPPORTUNITY TO MEET AND CONFER
AS TO THE PROCEDURES WHICH WOULD BE FOLLOWED. THE ASSISTANT SECRETARY
HELD THIS TO BE IN DEROGATION OF THE EMPLOYER'S OBLIGATION TO MEET AND
CONFER UNDER THE ORDER. /10/ IN RESPECT TO THE DUTY TO BARGAIN RE THE
IMPACT OF THE RIF DECISION ON EMPLOYEES ADVERSELY AFFECTED, IT WAS HELD
THAT, AFTER SUCH NOTICES WERE ISSUED, THE UNION MADE NO REQUEST TO
BARGAIN AS TO THE IMPACT OF THE INTENDED ACTION. THUS, MANAGEMENT DID
NOT VIOLATE SECTION 19(A)(6) IN THIS REGARD.
IN THE LIGHT OF BOTH CITED CASES I CONCLUDE THAT RESPONDENT HEREIN
HAS FULFILLED ITS OBLIGATION IMPOSED BY THE ORDER. CONTRARY TO THE
FACTUAL SITUATION IN GREAT LAKES NAVAL HOSPITAL, SUPRA, THE EMPLOYER
HEREIN AFFORDED AMPLE OPPORTUNITY TO THE UNION HEREIN TO MEET AND CONFER
AS TO THE CONSOLIDATION AND ATTENDANT RIF. THE BRIEFINGS CONDUCTED BY
MANAGEMENT ON JANUARY 11, MARCH 23, AND APRIL 17, TO WHICH UNION
REPRESENTATIVES WERE INVITED, PROVIDED COMPLAINANT WITH SUFFICIENT
NOTIFICATION AND INFORMATION REGARDING THE CONTEMPLATED ACTIONS.
FURTHER, THE REALIGNMENT FLOWING FROM THE MOVEMENT OF PHILADELPHIA
PERSONNEL TO FORT MONMOUTH. THE REORGANIZATION WAS DESCRIBED AS WELL AS
THE PARTICULAR SECTIONS WHICH WOULD BE MOVED INTO CERTAIN AREAS. DURING
THESE MEETINGS QUESTIONS WERE ASKED BY REPRESENTATIVES OF VARIOUS
UNIONS, INCLUDING COMPLAINANT, AND ANSWERS GIVEN TO THE EXTENT POSSIBLE.
ALTHOUGH MANAGEMENT DID NOT HAVE THE NAMES OF PARTICULAR INDIVIDUALS
LIKELY TO BE AFFECTED BY THE CHANGE, IT INDICATED THAT THE LOCAL
COMMANDS WOULD KNOW THESE DETAILS LATER ON.
HAVING NOTIFIED THE COMPLAINT FORMALLY OF THE IMPENDING MOVE AND
ACTION TO BE TAKEN - AS WELL AS MEETING WITH THE UNIONS TO BRIEF THEM
THEREON - I CONCLUDE THAT RESPONDENT HAS COMPLIED WITH ITS INITIAL
RESPONSIBILITIES IN RESPECT TO CONFERRING WITH THE EMPLOYEES' BARGAINING
REPRESENTATIVE. /11/ THEREAFTER, IT WAS INCUMBENT UPON THE UNION HEREIN
TO REQUEST MANAGEMENT TO MEET AND CONFER REGARDING THE METHODS TO BE
ADOPTED OR THE IMPACT OF THE DECISION UPON EMPLOYEES. THE RECORD DOES
NOT SUPPORT A FINDING THAT ANY SUCH REQUEST WAS MADE BY COMPLAINANT.
/12/ WHILE THE LETTER BY CAHN TO MAJOR GENERAL FOSTER, JR., DATED APRIL
9, REFERS TO THE FAILURE BY THE EMPLOYER TO CONFER AND CONSULT, I DO NOT
VIEW IT AS AN EXPLICIT REQUEST TO DO SO WITH RESPECT TO PROCEDURES OR
IMPACT. MOREOVER, RESPONDENT MET SUBSEQUENTLY WITH COMPLAINANT AND
OTHER UNIONS ON APRIL 17, AT WHICH TIME THE UNION HEREIN WAS CLEARLY IN
A POSITION TO ASK MANAGEMENT TO BARGAIN IN THESE RESPECTS.
UNDER ALL OF THESE CIRCUMSTANCES, I CONCLUDE AND FIND THAT THE
FAILURE BY COMPLAINANT TO TIMELY REQUEST THAT THE ACTIVITY MEET AND
CONFER REGARDING PROCEDURES AND IMPACT PRECLUDES A FINDING THAT
RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THE COMPLAINT AGAINST RESPONDENT BE DISMISSED.
DATED: APRIL 4, 1974
WASHINGTON, D.C.
/1/ THE INSTANT CASE WAS CONSOLIDATED WITH CASE NO. 3462(CA) BY ORDER
ISSUED ON DECEMBER 17, 1973. IN VIEW OF THE DISTINCT AND UNRELATED
ISSUES IN BOTH MATTERS, THE ASSISTANT REGIONAL DIRECTOR ISSUED AN ORDER
ON JANUARY 8, 1974 SEVERING BOTH CASES.
/2/ THIS PARTICULAR ALLEGATION IS MENTIONED IN COMPLAINANT'S LETTER
OF APRIL 9, 1973 TO RESPONDENT. SINCE THE COMPLAINT HEREIN REFERS TO
THIS LETTER AS SPECIFYING THE ALLEGED ACTS COMPLAINED ABOUT, I AM
TREATING THIS ADDITIONAL ALLEGATION AS PART OF THE COMPLAINT.
/3/ THE NOTICE OF HEARING ON COMPLAINT STATED THE HEARING WOULD BE
HELD WITH REFERENCE TO ALLEGED VIOLATIONS OF SECTION 19(A)(1) AND (6).
/4/ ALL DATED HEREINAFTER MENTIONED ARE IN 1973 UNLESS OTHERWISE
INDICATED.
/5/ COMPLAINANT'S EXHIBIT 1.
/6/ RESPONDENT'S EXHIBITS 5 THROUGH 13.
/7/ COMPLAINANT'S EXHIBIT 4.
/8/ COMPLAINANT, IN A LETTER OF APRIL 9, 1973, TO RESPONDENT
(COMPLAINANT'S EXHIBIT 7), CONTENDED THERE WAS A REFUSAL TO CONSULT BY
REASON OF THIS NOTIFICATION BEING SENT TO THE UNION AND THE EMPLOYEES
SIMULTANEOUSLY. IT WAS FURTHER AVERRED THAT MANAGEMENT CHANGED
COMPETITIVE AREAS AND LEVELS UNILATERALLY WITHOUT NOTICE, DENIED THE
EMPLOYEES AND THE UNION ACCESS TO RIF PLANNING INFORMATION, AND REFUSED
TO ACCORD RECOGNITION IN FACT TO COMPLAINANT.
/9/ RESPONDENT'S EXHIBIT 5.
/10/ THE CASE OF U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE,
A/SLMR NO. 261 WAS DISTINGUISHED. IN NORTON, THE UNION WAS NOTIFIED OF
AN INTENDED ELIMINATION OF A GRAVE YARD SHIFT PRIOR TO ITS ELIMINATION.
SINCE THE UNION FAILED TO REQUEST THE ACTIVITY TO MEET AND CONFER RE THE
IMPACT, ALTHOUGH IT HAD SUFFICIENT OPPORTUNITY TO DO SO, MANAGEMENT DID
NOT VIOLATE ITS OBLIGATION TO MEET AND CONFER UNDER THE ORDER.
/11/ CF. FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, N.J., A/SLMR NO. 329.
/12/ THE UNION AGREES THAT ALL OF ITS REQUESTS TO, AND DISCUSSIONS
WITH, MANAGEMENT REGARDING THE CONSOLIDATION ARE CONTAINED IN THE
EXHIBITS HEREIN.
4 A/SLMR 394; P. 351; CASE NO. 71-2761; MAY 31, 1974.
IDAHO PANHANDLE NATIONAL FORESTS,
UNITED STATES DEPARTMENT OF AGRICULTURE
A/SLMR NO. 394
THE IDAHO PANHANDLE NATIONAL FORESTS, UNITED STATES DEPARTMENT OF
AGRICULTURE (ACTIVITY-PETITIONER), FOLLOWING A REORGANIZATION WHICH
MERGED THREE FORMER NATIONAL FORESTS - THE KANIKSU NATIONAL FOREST, THE
ST. JOE NATIONAL FOREST, AND THE COEUR D'ALENE NATIONAL FOREST - INTO A
NEW ORGANIZATIONAL ENTITY, THE IDAHO PANHANDLE NATIONAL FORESTS, FILED
AN RA PETITION SEEKING A DETERMINATION BY THE ASSISTANT SECRETARY THAT
THE THREE EXISTING EXCLUSIVELY RECOGNIZED UNITS IN EACH OF THREE FORMER
NATIONAL FORESTS WERE NO LONGER APPROPRIATE, AND THAT AN OVERALL UNIT
CONSISTING OF ALL EMPLOYEES, INCLUDING PROFESSIONAL AND REGULAR SEASONAL
EMPLOYEES, EMPLOYED BY THE IDAHO PANHANDLE NATIONAL FORESTS, IS
APPROPRIATE. IN THIS CONNECTION, THE ACTIVITY-PETITIONER REQUESTED AN
ELECTION TO DETERMINE WHETHER LOCAL 1295, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES (NFFE), OR THE NFFE COUNCIL - KANIKSU NATIONAL FOREST (LOCALS
1402 AND 1452), OR LOCAL 1205, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO (AFGE), REPRESENTED THE EMPLOYEES IN THE UNIT
CONTENDED TO BE APPROPRIATE.
THE ASSISTANT SECRETARY FOUND THAT THE CONSOLIDATION OF THE THREE
NATIONAL FORESTS INTO THE ACTIVITY-PETITIONER WHICH, AMONG OTHER THINGS,
RESULTED IN THE MERGING OF HEADQUARTERS EMPLOYEES, INCLUDING THE
PERSONNEL OFFICE FUNCTIONS, OF ALL THREE NATIONAL FORESTS INTO ONE
STAFF, THE CONSOLIDATION OF RANGER DISTRICTS, THE ACTUAL PHYSICAL
MOVEMENT OF A NUMBER OF EMPLOYEES IN ORDER FOR THEM TO BE CLOSER TO
THEIR NEW DUTY STATIONS, THE CHANGE FROM A FUNCTIONAL TO A MANAGEMENT
TEAM CONCEPT AT NATIONAL FOREST HEADQUARTERS, AND THE CREATION OF
ENTIRELY NEW ORGANIZATIONAL ZONES FOR CARRYING OUT OF SPECIFIC WORK
FUNCTIONS, WHICH ZONES HAVE THE EFFECT OF CUTTING ACROSS FORMER NATIONAL
FOREST BOUNDARIES AND EXISTING EXCLUSIVELY RECOGNIZED UNITS, EFFECTED
SUBSTANTIAL CHANGES IN BOTH THE SCOPE AND CHARACTER OF THE THREE FORMER
EXCLUSIVELY RECOGNIZED UNITS INVOLVED HEREIN. IN THESE CIRCUMSTANCES,
THE ASSISTANT SECRETARY CONCLUDED THAT THE EMPLOYEES IN THE KANIKSU, ST.
JOE, AND COEUR D'ALENE NATIONAL FORESTS DID NOT CONTINUE TO SHARE A
SEPARATE AND IDENTIFIABLE COMMUNITY OF INTEREST FROM EACH OTHER AND THAT
THE EXCLUSIVELY RECOGNIZED UNITS LIMITED TO THE EMPLOYEES OF THOSE
FORMER NATIONAL FORESTS NO LONGER REMAIN APPROPRIATE WITHIN THE MEANING
OF THE ORDER. RATHER, THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES
OF THE THREE FORMER NATIONAL FORESTS TOGETHER SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A UNIT WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY,
THE ASSISTANT SECRETARY INCLUDED THEM TOGETHER IN THE ACTIVITY-WIDE UNIT
SOUGHT BY THE ACTIVITY-PETITIONER AND HE DIRECTED AN ELECTION IN THE
UNIT FOUND APPROPRIATE.
IDAHO PANHANDLE NATIONAL FORESTS,
UNITED STATES DEPARTMENT OF AGRICULTURE
AND
LOCAL 1295, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES COUNCIL -
KANIKSU NATIONAL FOREST (LOCALS 1402 AND 1452)
AND
LOCAL 1205, 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 DANIEL KRAUS. 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-PETITIONER'S BRIEF, THE ASSISTANT SECRETARY FINDS:
THE IDAHO PANHANDLE NATIONAL FORESTS, UNITED STATES DEPARTMENT OF
AGRICULTURE, HEREINAFTER CALLED THE ACTIVITY-PETITIONER, FILED AN RA
PETITION SEEKING A DETERMINATION BY THE ASSISTANT SECRETARY WITH RESPECT
TO THE EFFECT OF A RECENT REORGANIZATION ON CERTAIN EXISTING EXCLUSIVELY
RECOGNIZED UNITS. MORE SPECIFICALLY, THE ACTIVITY-PETITIONER CONTENDS
THAT CERTAIN EXCLUSIVELY RECOGNIZED UNITS ARE INAPPROPRIATE DUE TO A
REORGANIZATION WHICH CONSOLIDATED THREE NATIONAL FORESTS INTO ONE
NATIONAL FOREST AND THAT A SINGLE OVERALL BARGAINING UNIT OF: "ALL
EMPLOYEES, INCLUDING PROFESSIONALS AND REGULAR SEASONAL EMPLOYEES
EMPLOYED AT THE IDAHO PANHANDLE NATIONAL FORESTS, EXCEPT TEMPORARY
INTERMITTENT AND CASUAL EMPLOYEES, /1/ EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, MANAGEMENT
OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER. IN THIS
CONNECTION, IT REQUESTS THAT AN ELECTION BE ORDERED TO DETERMINE WHETHER
LOCAL 1295, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN CALLED
NFFE, OR THE NFFE COUNCIL - KANIKSU NATIONAL FOREST (NFFE LOCALS 1402
AND 1452), HEREIN CALLED THE NFFE COUNCIL, OR LOCAL 1205, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE,
REPRESENTS THE EMPLOYEES IN THE UNIT WHICH THE ACTIVITY-PETITIONER
CONTENDS IS APPROPRIATE. THE NFFE AGREES WITH THE ACTIVITY-PETITIONER'S
POSITION WITH RESPECT TO THE APPROPRIATE UNIT. THE AFGE, ON THE OTHER
HAND, CONTENDS THAT THE FORMULATION OF THE IDAHO PANHANDLE NATIONAL
FORESTS CONSTITUTED MERELY A PAPER REORGANIZATION AND THAT THE UNIT FOR
WHICH IT WAS RECOGNIZED ORIGINALLY, THE COEUR D'ALENE NATIONAL FOREST,
CONTINUES TO BE VIABLE AND APPROPRIATE.
BACKGROUND AND BARGAINING HISTORY PRIOR TO THE REORGANIZATION OF JULY
1, 1973
THE MISSION OF THE DEPARTMENT OF AGRICULATURE'S FOREST SERVICE, OF
WHICH THE ACTIVITY-PETITIONER IS A PART, IS TO PROVIDE LEADERSHIP IN
NATIONAL FOREST LAND RESOURCE MANAGEMENT, INCLUDING THE MANAGEMENT OF
TIMBER, WATERSHED, FISH AND WILDLIFE, AND RECREATION. TO ACHIEVE THIS
MISSION, THE FOREST SERVICE IS ORGANIZED INTO THE FOLLOWING THREE
FUNCTIONAL AREAS: A DIVISION OF RESEARCH; A DIVISION WHICH LENDS
ASSISTANCE TO STATE AND PRIVATE FOREST MANAGEMENT ORGANIZATIONS; AND A
DIVISION CALLED THE NATIONAL FOREST SYSTEM, WHICH MANAGES THE RESOURCES
FOUND ON NATIONAL FOREST LANDS. THE NATIONAL FOREST SYSTEM IS HEADED BY
THE CHIEF OF THE FOREST SERVICE AND IS ORGANIZED GEOGRAPHICALLY INTO
VARIOUS REGIONS, EACH HEADED BY A REGIONAL FORESTER. REGION 1 OF THE
FOREST SERVICE, WITH HEADQUARTERS IN MISSOULA, MONTANA, ENCOMPASSES 16
NATIONAL FORESTS, AMONG WHICH WERE INCLUDED, PRIOR TO THE
REORGANIZATION, THE KANIKSU NATIONAL FOREST, THE ST. JOE NATIONAL
FOREST, AND THE COEUR D'ALENE NATIONAL FOREST.
PRIOR TO THE REORGANIZATION, THE KANIKSU NATIONAL FORES, THE ST. JOE
NATIONAL FOREST, AND THE COEUR D'ALENE NATIONAL FOREST WERE EACH HEADED
BY A FOREST SUPERVISOR WHO WAS DIRECTLY RESPONSIBLE TO THE REGIONAL
FORESTER FOR REGION 1. EACH OF THESE THREE FOREST SUPERVISORS HAD A
HEADQUARTERS' STAFF ORGANIZED ALONG FUNCTIONAL RESOURCE LINES. IN
ADDITION, EACH FOREST SUPERVISOR HAD A NUMBER OF RANGER DISTRICTS UNDER
HIS DIRECTION, EACH OF WHICH WAS HEADED BY A DISTRICT RANGER. IN THIS
CONNECTION, THE KANIKSU NATIONAL FOREST HAD EIGHT RANGER DISTRICTS, THE
ST. JOE NATIONAL FOREST HAD FIVE RANGER DISTRICTS AND THE COEUR D'ALENE
NATIONAL FOREST HAD FOUR RANGER DISTRICTS IN ADDITION TO THE NURSERY,
WHOSE PRIMARY FUNCTION WAS TO GROW NURSERY STOCK FOR THE ENTIRE REGION.
WHILE THE ABOVE THREE NATIONAL FORESTS WERE ORGANIZED AND FUNCTIONED IN
A SIMILAR MANNER WITH RESPECT TO CHAIN OF COMMANDS, ADMINISTRATION AND
MANAGEMENT, THE RECORD REVEALS THAT THERE EXISTED SOME DISPARITIES,
INCLUDING DISTINCT DIFFERENCES IN THEIR GEOGRAPHICAL CHARACTER,
AVAILABLE RESOURCES, AND RECREATIONAL POTENTIAL.
PRIOR TO THE REORGANIZATION, EACH OF THE THREE NATIONAL FORESTS HAD A
SEPARATE PERSONNEL OFFICER AND WAS A SEPARATE AND DISTINCT
ORGANIZATIONAL UNIT IN MOST MATTERS INVOLVING PERSONNEL ADMINISTRATION.
THUS, THE COMPETITIVE AREA FOR PROMOTIONS FOR GRADES GS-7 AND BELOW, AS
WELL AS FOR SOME GRADE GS-9 EMPLOYEES, WAS THE INDIVIDUAL NATIONAL
FOREST IN WHICH THE VACANCY OCCURRED, WITH THE REMAINING HIGHER LEVEL
GRADES BEING CONSIDERED ON A REGIONWIDE BASIS. THE CLASSIFICATION OF
EMPLOYEES IN GRADES GS-9 AND BELOW ALSO WAS PERFORMED IN EACH NATIONAL
FOREST, WITH A REVIEW OF A PERCENTAGE OF SUCH CLASSIFICATIONS BEING
CARRIED OUT BY THE REGIONAL FORESTERS'S STAFF. FOR PURPOSES OF TRAINING
AND REDUCTIONS IN FORCE, THE AREA OF CONSIDERATION WAS, IN MOST
INSTANCES, EACH INDIVIDUAL NATIONAL FOREST. IN ADDITION, THE FOREST
SUPERVISOR AND THE PERSONNEL OFFICER IN EACH NATIONAL FOREST HAD THE
RESPONSIBILITY FOR GIVING ADVICE AND TAKING ACTION ON GRIEVANCES AND
ADVERSE ACTIONS, AS WELL AS THE PRIMARY RESPONSIBILITY FOR MOST
LABOR-MANAGEMENT RELATIONS MATTERS.
ON AUGUST 7, 1970, NFFE LOCAL 1295 WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF ALL PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE
AND WAGE GRADE EMPLOYEES OF THE ST. JOE NATIONAL FOREST WITH CONTINUING
APPOINTMENTS. THEREAFTER, ON OCTOBER 30, 1970, THE NFFE COUNCIL WAS
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE FOR A UNIT OF ALL PROFESSIONAL
AND NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES WITH
CONTINUING APPOINTMENTS, OF THE KANIKSU NATIONAL FOREST. AND ON
SEPTEMBER 10, 1970, AFGE LOCAL 1205 WAS CERTIFIED AS THE EXCLUSIVE
REPRESENTATIVE OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE
COEUR D'ALENE NATIONAL FOREST WITH CONTINUING APPOINTMENTS.
THE RECORD REVEALS THAT EACH OF THE ABOVE EXCLUSIVE REPRESENTATIVES
HAS NEGOTIATED AN AGREEMENT COVERING THE EMPLOYEES IN THEIR RESPECTIVE
UNITS. SECTION 202.3(C)(3) OF THE ASSISTANT SECRETARY'S REGULATIONS,
PROVIDES THAT WHEN AN AGREEMENT COVERS A CLAIMED UNIT, AN ELECTION
PETITION WILL BE CONSIDERED TIMELY, "-- -(3) ANY TIME WHEN UNUSUAL
CIRCUMSTANCES EXIST WHICH SUBSTANTIALLY AFFECT THE UNIT OR THE MAJORITY
REPRESENTATION." AS THE INSTANT RA PETITION RAISES THE ISSUE OF WHETHER
THE EXCLUSIVELY RECOGNIZED UNITS REMAIN APPROPRIATE BECAUSE OF A
SUBSTANTIAL CHANGE IN THEIR CHARACTER AND COMPOSITION DUE TO THE
REORGANIZATION, I FIND THAT THE CURRENT NEGOTIATED AGREEMENTS DO NOT
CONSTITUTE BARS TO THE FILING OF THE INSTANT RA PETITION.
REORGANIZATION, REASSIGNMENT OF PERSONNEL, AND CONDITIONS OF
EMPLOYMENT
ON JULY 1, 1973, A REORGANIZATION OCCURRED WHICH EFFECTED A
CONSOLIDATION OF THE KANIKSU, THE ST. JOE AND THE COEUR D'ALENE NATIONAL
FORESTS INTO ONE ORGANIZATIONAL AND FUNCTIONAL ENTITY, THE IDAHO
PANHANDLE NATIONAL FORESTS. THE RECORD REFLECTS THAT THIS CONSOLIDATION
AFFECTED EMPLOYEES IN THE HEADQUARTERS' STAFFS OF THE THREE FORESTS IN
THAT NOW THERE IS ONLY ONE FOREST SUPERVISOR AND ONE HEADQUARTERS' STAFF
OVER THE EMPLOYEES IN ALL THREE OF THE NATIONAL FORESTS INVOLVED IN THE
CONSOLIDATION. IN THIS REGARD, AS A RESULT OF THE REORGANIZATION AND
CONSOLIDATION, THE HEADQUARTERS' UNITS OF BOTH THE KANIKSU NATIONAL
FOREST, FORMERLY LOCATED AT SANDPOINT, IDAHO, AND OF THE ST. JOE
NATIONAL FOREST, FORMERLY LOCATED AT ST. MARIES, IDAHO, HAVE BEEN
ELIMINATED, AND THE HEADQUARTERS FOR THE CONSOLIDATED ORGANIZATION
CURRENTLY IS LOCATED AT COEUR D'ALENE, IDAHO, THE FORMER SITE OF THE
HEADQUARTERS OF THE COEUR D'ALENE NATIONAL FOREST. MOREOVER, THE RECORD
DISCLOSES THAT THE REORGANIZATION HAS RESULTED IN AN EFFECTIVE EXPANSION
OF THE AREA OF CONSIDERATION FOR REDUCTION IN FORCE, PROMOTIONS,
TRAINING AND RELATED PERSONNEL ACTIONS FROM THAT OF THE FORMER
INDIVIDUAL NATIONAL FOREST TO THAT OF THE NEW ORGANIZATION, THE IDAHO
PANHANDLE NATIONAL FORESTS. IN THIS CONNECTION, THE RECORD REVEALS THAT
THE PERSONNEL FOR THIS NEW CONSOLIDATED HEADQUARTERS' STAFF HAS BEEN
CHOSEN PRIMARILY FROM THE PERSONNEL OF THE PREVIOUSLY EXISTING
ORGANIZATIONS AND THAT THE NET EFFECT HAS BEEN TO REDUCE THE TOTAL
NUMBER OF POSITIONS IN THE HEADQUARTERS' STAFF, WITH SOME OF THE
EMPLOYEES OF THE FORMER HEADQUARTERS STAFFS OF THE THREE FORESTS BEING
TRANSFERRED TO OTHER FORESTS OR TO OTHER REGIONS.
THE EVIDENCE DISCLOSES FURTHER THAT MANY OF THE RANGER DISTRICTS IN
EACH OF THE FORMER NATIONAL FORESTS HAVE ALSO UNDERGONE A PROCESS OF
CONSOLIDATION AND CHANGE. THUS, THE PRIEST LAKE AND FALLS RANGER
DISTRICTS OF THE KANIKSU WERE COMBINED INTO ONE DISTRICT WITH
HEADQUARTERS AT PRIEST LAKE, IDAHO; THE SANDPOINT AND CLARK FORK RANGER
DISTRICTS OF THE KANIKSU WERE COMBINED INTO ONE DISTRICT WITH
HEADQUARTERS AT SANDPOINT, IDAHO; THE WALLACE AND KINGSTON RANGER
DISTRICTS OF THE COEUR D'ALENE WERE COMBINED INTO ONE DISTRICT WITH
HEADQUARTERS AT WALLACE, IDAHO; THE FERNAN AND MAGEE RANGER DISTRICTS
OF THE COEUR D'ALENE WERE COMBINED INTO ONE DISTRICT WITH HEADQUARTERS
AT COEUR D'ALENE, IDAHO; AND THE CLARKIA AND CALDER RANGER DISTRICTS OF
THE ST. JOE WERE COMBINED INTO ONE DISTRICT WITH HEADQUARTERS AT ST.
MARIES, IDAHO. IN ADDITION, THE RECORD SHOWS THAT SEVERAL OF THE RANGER
DISTRICTS OF THE THREE FORMER NATIONAL FORESTS WERE TRANSFERRED TO OTHER
NATIONAL FORESTS, AS FOLLOWS: THE NEWPORT RANGER DISTRICT OF THE
KANIKSU WAS TRANSFERRED TO THE COLVILLE NATIONAL FOREST; THE NOXON AND
TROUT CREEK RANGER DISTRICTS OF THE KANIKSU WERE TRANSFERRED TO THE
KOOTENAI NATIONAL FOREST, AND THE PALOUSE RANGER DISTRICT OF THE ST. JOE
WAS TRANSFERRED TO THE CLEARWATER NATIONAL FOREST. THE NET RESULTS OF
ALL OF THESE ORGANIZATIONAL CHANGES HAS BEEN THAT THE IDAHO PANHANDLE
NATIONAL FORESTS' SUPERVISOR HAS EIGHT RANGER DISTRICTS PLUS THE COEUR
D'ALENE NURSERY UNDER HIS DIRECTION.
WHILE MOST OF THE EMPLOYEES OF THE THREE FORMER NATIONAL FORESTS HAVE
BEEN PLACED IN A POSITION WHEREIN THEY PERFORM ESSENTIALLY THE SAME KIND
OF WORK AT THE SAME ORGANIZATIONAL LEVEL AS THEY DID PRIOR TO THE
CONSOLIDATION, THE RECORD REVEALS FURTHER THAT SOME 132 EMPLOYEES OUT OF
A TOTAL OF APPROXIMATELY 336 EMPLOYEES IN THE RESULTANT ORGANIZATION
HAVE HAD TO RELOCATE PHYSICALLY IN ORDER TO BE CLOSER TO THEIR NEW DUTY
STATIONS. AND ALTHOUGH THE TOTAL NUMBER OF EMPLOYEES WHO PHYSICALLY
MOVED INCLUDES BOTH SUPERVISORY AND MANAGERIAL PERSONNEL, THE RECORD
INDICATES THAT SOME 38 EMPLOYEES WHO PHYSICALLY MOVED WERE ELIGIBLE TO
BE INCLUDED IN A BARGAINING UNIT BOTH PRIOR AND SUBSEQUENT TO THE
SUBJECT REORGANIZATION.
THE EVIDENCE FURTHER ESTABLISHES THAT THE ORGANIZATION OF THE IDAHO
PANHANDLE NATIONAL FORESTS' CONSOLIDATED HEADQUARTERS IS DIFFERENT FROM
THAT OF ANY OF THE THREE PREVIOUS NATIONAL FORESTS' HEADQUARTERS. THUS,
FOLLOWING THE REORGANIZATION, THERE IS ONE FOREST SUPERVISOR AND ONE
PERSONNEL OFFICER FOR ALL THREE NATIONAL FORESTS. IN ADDITION, THE
FORMER FUNCTIONAL RESOURCE STAFF POSITIONS IN EACH HEADQUARTERS
ORGANIZATION, I.E., STAFF POSITIONS WHICH WERE STRUCTURED TO COVER ALL
ASPECTS OF PLANNING, SUPPLY, COORDINATION AND SERVICES RELATING TO A
PARTICULAR RESOURCE SUCH AS TIMBER, HAVE BEEN ELIMINATED IN FAVOR OF A
MANAGEMENT TEAM CONCEPT WHEREIN STAFF POSITIONS ARE STRUCTURED TO FOCUS
ON A PARTICULAR MANAGEMENT FUNCTION, SUCH AS PLANNING, WHICH ENCOMPASSES
THE NEEDS OF ALL OF THE NATIONAL FORESTS' RESOURCES IN THAT ONE AREA.
MOREOVER, THE RECORD INDICATES THAT THE TOTALLY NEW "ZONING" CONCEPT
HAS BEEN IMPLEMENTED WITH RESPECT TO THE ENGINEERING AND MULTIPLE-USE
PLANNING FUNCTIONS. RATHER THAN THE FORMER CENTRALIZATION OF THESE
FUNCTIONS AT THE HEADQUARTERS LEVEL OF EACH NATIONAL FOREST, THE ZONE
CONCEPT HAS RESULTED IN THE RETENTION OF ONLY ONE SUPERVISORY CIVIL
ENGINEER FOR THE PERFORMANCE OF THIS FUNCTION AT THE HEADQUARTERS LEVEL
OF THE NEW ORGANIZATION. THE SUPERVISORY CIVIL ENGINEER HAS TWO
ASSISTANTS ("ZONE ENGINEERS") LOCATED IN SANDPOINT AND ST. MARIES,
IDAHO. THE SANDPOINT ZONE COVERS AN AREA WHICH INCLUDES ALL OF THE
FORMER KANIKSU NATIONAL FOREST PLUS THE WESTERN HALF OF THE FORMER COEUR
D'ALENE NATIONAL FOREST, AND THE ST. MARIES ZONE COVERS AN AREA WHICH
INCLUDES ALL OF THE FORMER ST. JOE NATIONAL FOREST PLUS THE EASTERN HALF
OF THE FORMER COEUR D'ALENE NATIONAL FOREST. AS A RESULT OF THE
ESTABLISHMENT OF THESE ZONES, THE ENGINEERING ORGANIZATION'S EMPLOYEES,
SOME FIFTY PERMANENT EMPLOYEES IN EACH ZONE, HAVE BEEN REQUIRED, IN MANY
CASES, TO CHANGE THE HEADQUARTERS (COEUR D'ALENE) TO WHICH THEY REPORT
ADMINISTRATIVELY, AND HAVE BEEN REQUIRED TO RELOCATE PHYSICALLY IN A NEW
AND DIFFERENT NATIONAL FOREST. SIMILAR CHANGES OCCURRED, IN A MORE
LISTED FASHION, WITH RESPECT TO SOME FIFTEEN EMPLOYEES IN THE
MULTIPLE-USE PLANNING GROUPS WHEN THEY WERE INCLUDED IN THE NEW ZONE
CONCEPT. IN SUM, THE ZONING OF THE ENGINEERING AND THE MULTIPLE-USE
PLANNING GROUPS HAS RESULTED IN A CHANGE INVOLVING NOT ONLY THE CROSSING
OF FORMER NATIONAL FOREST BOUNDARIES FOR ADMINISTRATIVE PURPOSES, BUT
ALSO HAS NECESSITATED THE DECENTRALIZATION FROM HEADQUARTERS TO ZONES,
WITH SOME ATTENDANT PHYSICAL MOVES ACROSS FORMER NATIONAL FOREST
BOUNDARIES OF THE EMPLOYEES PERFORMING IN EACH OF THESE TWO FUNCTIONS.
IN PRIOR UNIT DETERMINATION, AN ACTIVITY-WIDE UNIT COMPRISED OF ALL
NONPROFESSIONAL EMPLOYEES OF A NATIONAL FOREST, AND AN ACTIVITY-WIDE
UNIT COMPRISED OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF
CONSOLIDATED NATIONAL FORESTS, HAVE BEEN FOUND TO BE APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. /2/ THUS, IT HAS BEEN FOUND THAT
WHERE, AS IN THE INSTANT CASE PRIOR TO THE REORGANIZATION AND
CONSOLIDATION, EMPLOYEES OF A NATIONAL FOREST SHARE A COMMON MISSION,
WORK UNDER CENTRALIZED SUPERVISION, ARE SUBJECT TO COMMON PERSONNEL
POLICIES AND A UNIFIED SYSTEM OF POLICIES AND DIRECTIVES, AND ENJOY
ESSENTIALLY THE SAME TERMS AND CONDITIONS OF EMPLOYMENT, THEY HAVE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST, AND SUCH A UNIT WILL
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
HOWEVER, AS NOTED ABOVE, THE SUBJECT CASE PRESENTS UNUSUAL CIRCUMSTANCES
IN VIEW OF THE EFFECTIVE CONSOLIDATION OF THREE NATIONAL FORESTS INTO
ONE. IN VIEW OF THE CONSOLIDATION IN THE INSTANT CASE WHICH, AMONG
OTHER THINGS, RESULTED IN THE MERGING OF HEADQUARTERS EMPLOYEES,
INCLUDING THE PERSONNEL OFFICE FUNCTIONS, OF ALL THREE NATIONAL FORESTS
INTO ONE STAFF, THE CONSOLIDATION OF RANGER DISTRICTS, THE ACTUAL
PHYSICAL MOVEMENT OF A NUMBER OF EMPLOYEES WHO WERE REQUIRED TO RELOCATE
TO BE CLOSER TO THEIR NEW DUTY STATIONS, THE CHANGE FROM A FUNCTIONAL TO
A MANAGEMENT TEAM CONCEPT AT NATIONAL FOREST HEADQUARTERS, AND THE
CREATION OF ENTIRELY NEW ORGANIZATIONAL ZONES FOR THE CARRYING OUT OF
SPECIFIC WORK FUNCTIONS, WHICH ZONES HAVE THE EFFECT OF CUTTING ACROSS
FORMER NATIONAL FOREST BOUNDARIES AND EXISTING RECOGNIZED UNITS, I FIND
THAT THE REORGANIZATION OF JULY 1, 1973, EFFECTED SUBSTANTIAL CHANGES IN
BOTH THE SCOPE AND CHARACTER OF THE EXCLUSIVELY RECOGNIZED UNITS
INVOLVED HEREIN. UNDER THESE CIRCUMSTANCES, I CONCLUDE THAT THE
EMPLOYEES IN THE KANIKSU, ST. JOE, AND COEUR D'ALENE NATIONAL FORESTS DO
NOT CONTINUE TO SHARE A SEPARATE AND IDENTIFIABLE COMMUNITY OF INTEREST
FROM EACH OTHER AND THAT THE EXCLUSIVELY RECOGNIZED UNITS LIMITED TO THE
EMPLOYEES OF THOSE FORMER NATIONAL FORESTS NO LONGER REMAIN APPROPRIATE
WITHIN THE MEANING OF THE ORDER. /3/ RATHER, I FIND THAT, BASED ON THE
FACTORS OUTLINED ABOVE, THE EMPLOYEES OF THE THREE FORMER NATIONAL
FORESTS INVOLVED HEREIN NOW TOGETHER SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST, AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, AND TO
EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER, I SHALL INCLUDE THEM
TOGETHER IN THE ACTIVITY-WIDE UNIT SOUGHT BY THE ACTIVITY-PETITIONER.
BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES OF THE
ACTIVITY-PETITIONER MAY CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES, INCLUDING REGULAR
SEASONAL EMPLOYEES OF THE
IDAHO PANHANDLE NATIONAL FORESTS; EXCLUDING ALL TEMPORARY
INTERMITTENT AND CASUAL 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 STATED ABOVE, THE UNIT FOUND APPROPRIATE INCLUDES PROFESSIONAL
EMPLOYEES. HOWEVER, THE ASSISTANT SECRETARY IS PROHIBITED BY SECTION
,10(4((B) OF THE ORDER FROM INCLUDING PROFESSIONAL EMPLOYEES IN A UNIT
WITH NONPROFESSIONAL EMPLOYEES UNLESS A MAJORITY OF THE PROFESSIONAL
EMPLOYEES VOTE 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, THERFORE,
DIRECT THAT SEPARATE ELECTIONS BE CONDUCTED IN THE FOLLOWING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE IDAHO PANHANDLE
NATIONAL FORESTS, INCLUDING PROFESSIONAL REGULAR SEASONAL EMPLOYEES;
EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, TEMPORARY INTERMITTENT AND
CASUAL 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, INCLUDING
NONPROFESSIONAL REGULAR SEASONAL EMPLOYEES, OF THE IDAHO PANHANDLE
NATIONAL FORESTS; EXCLUDING ALL PROFESSIONAL EMPLOYEES, TEMPORARY
INTERMITTENT AND CASUAL 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 THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY LOCAL 1295, NATIONAL FEDERATION OF FEDERAL EMPLOYEES; BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES COUNCIL - KANIKSU NATIONAL
FOREST (LOCALS 1402 AND 1452); BY LOCAL 1205, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO; OR BY NONE OF THESE LABOR ORGANIZATIONS.
/4/
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 THEY WISH TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY LOCAL 1295, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES; BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES COUNCIL -
KANIKSU NATIONAL FOREST (LOCALS 1402 AND 1452); BY LOCAL 1205, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; OR BY NONE OF THESE LABOR
ORGANIZATIONS. IN THE EVENT THAT A MAJORITY OF THE VALID VOTES OF
VOTING GROUP (A) ARE CASE 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 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 BY THE AREA ADMINISTRATOR
INDICATING WHETHER LOCAL 1295, NATIONAL FEDERATION OF FEDERAL EMPLOYEES;
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES COUNCIL - KANIKSU NATIONAL
FOREST (LOCALS 1402 AND 1452); LOCAL 1205, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO; OR NONE OF THESE LABOR ORGANIZATIONS WAS
SELECTED BY THE PROFESSIONAL EMPLOYEE UNIT.
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF 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 THE
FOLLOWING UNITS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10 OF THE ORDER:
(A) ALL NONPROFESSIONAL EMPLOYEES OF THE IDAHO PANHANDLE NATIONAL
FORESTS, INCLUDING PROFESSIONAL REGULAR SEASONAL EMPLOYEES; EXCLUDING
ALL NONPROFESSIONAL EMPLOYEES, TEMPORARY INTERMITTENT AND CASUAL
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, INCLUDING NONPROFESSIONAL REGULAR
SEASONAL EMPLOYEES, OF THE IDAHO PANHANDLE NATIONAL FOREST; EXCLUDING
ALL PROFESSIONAL EMPLOYEES, TEMPORARY INTERMITTENT AND CASUAL 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, INCLUDING REGULAR
SEASONAL EMPLOYEES, OF
THE IDAHO PANHANDLE NATIONAL FOREST; EXCLUDING ALL TEMPORARY
INTERMITTENT AND CASUAL
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 VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT
LATER THAN 60 DAYS FROM THE DATE BELOW. 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 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 THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY LOCAL 1295, NATIONAL FEDERATION OF FEDERAL EMPLOYEES; BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES COUNCIL - KANIKSU NATIONAL
FOREST (LOCALS 1402 AND 1452); BY LOCAL 1205, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO; OR BY NONE OF THESE LABOR ORGANIZATIONS.
DATED, WASHINGTON, D.C.
MAY 31, 1974
/1/ DURING THE HEARING, THE PARTIES AGREED THAT TEMPORARY
INTERMITTENT AND CASUAL EMPLOYEES SHOULD BE EXCLUDED FROM ANY UNIT FOUND
TO BE APPROPRIATE BY THE ASSISTANT SECRETARY BECAUSE SUCH EMPLOYEES DO
NOT HAVE A REASONABLE EXPECTANCY OF CONTINUED EMPLOYMENT. AS THERE IS
NO EVIDENCE IN THE RECORD WHICH WOULD REQUIRE A CONTRARY CONCLUSION,
SUCH EMPLOYEES WILL BE EXCLUDED FROM ANY UNIT FOUND TO BE APPROPRIATE
HEREIN.
/2/ SEE UNITED STATES DEPARTMENT OF AGRICULTURE, BLACK HILLS NATIONAL
FOREST, A/SLMR NO. 58; U.S. DEPARTMENT OF AGRICULTURE, REGION FORESTER
OFFICE, FOREST SERVICES, REGION 3, SANTA FE NATIONAL FOREST, SANTA FE,
NEW MEXICO, A/SLMR NO. 88; AND UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, FRANCIS MARION AND SUMTER NATIONAL FORESTS, A/SLMR NO.
227.
/3/ IN A CASE INVOLVING SIMILAR CIRCUMSTANCES, UNITED STATES
DEPARTMENT OF AGRICULTURE, FOREST SERVICE, MARK TWAIN NATIONAL FOREST,
SPRINGFIELD, MISSOURI, A/SLMR NO. 303, A PETITIONED FOR UNIT OF A
SINGLE NATIONAL FOREST INVOLVED IN A CONSOLIDATION WITH ANOTHER NATIONAL
FOREST WAS FOUND TO BE INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION.
/4/ IN THE ABSENCE OF ANY RECORD EVIDENCE AS TO WHETHER OR NOT BOTH
NFFE LOCAL 1295 AND THE NFFE COUNCIL DESIRE TO APPEAR ON THE BALLOT IN
THIS MATTER, BOTH LABOR ORGANIZATIONS WILL BE PLACED ON THE BALLOT
BECAUSE THEY HAVE PROPERLY INTERVENED HEREIN. HOWEVER, IT SHOULD BE
NOTED THAT UNDER SECTION 202.17(D) OF THE ASSISTANT SECRETARY'S
REGULATIONS " . . . ANY INTERVENING LABOR ORGANIZATION MAY REQUEST THE
AREA ADMINISTRATOR TO REMOVE ITS NAME FROM THE BALLOT," PROVIDED THAT
THE REQUIREMENTS FOR A TIMELY WRITTEN REQUEST ARE MET AND THE AREA
ADMINISTRATOR APPROVES THE REQUEST.
4 A/SLMR 393; P. 341; CASE NO. 71-2615; MAY 31, 1974.
DEPARTMENT OF THE NAVY,
OFFICE OF THE SECRETARY,
WASHINGTON, D.C.
A/SLMR NO. 393
THIS CASE INVOLVED THE COMPLAINT FILED BY THE BOILERMAKERS, LOCAL 290
(COMPLAINANT) AGAINST THE DEPARTMENT OF THE NAVY, OFFICE OF THE
SECRETARY, WASHINGTON, D.C., (RESPONDENT) ALLEGING VIOLATIONS OF SECTION
19(A)(1) AND (3) OF THE ORDER. THE BASIS OF THE COMPLAINT WAS THAT THE
RESPONDENT VIOLATED THE ORDER WHEN PAUL C. WARNER, AN EMPLOYEE OF THE
RESPONDENT'S EMPLOYEE APPEALS REVIEW BOARD (EARB), LOCATED IN
WASHINGTON, D.C., WROTE A MEMORANDUM DATED NOVEMBER 17, 1972, ENDORSING
AN EMPLOYEE OF THE PUGET SOUND NAVAL SHIPYARD, (SHIPYARD), FOR THE
OFFICE OF PRESIDENT OF THE BREMERTON METAL TRADES COUNCIL, (BMTC), WHICH
MEMORANDUM SUBSEQUENTLY WAS CIRCULATED BY MAIL, WITH A SUPPORTING LETTER
OF A BUSINESS REPRESENTATIVE OF ONE OF THE CONSTITUENT MEMBERS OF THE
BMTC, TO THE OTHER ORGANIZATIONS AFFILIATED WITH THE BMTC.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE INSTANT 19(A)(1)
AND (3) COMPLAINT BE DISMISSED. HE CONCLUDED THAT THE ENDORSEMENT MADE
BY WARNER WAS NOT AN AGENCY FUNCTION, NOR WAS IT KNOWN BY THE RESPONDENT
THAT AN ENDORSEMENT HAD BEEN MADE. IN REACHING HIS DECISION, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT WARNER, ON NOVEMBER 17, 1972,
WAS NOT A MANAGEMENT OFFICIAL NOR A REPRESENTATIVE OF MANAGEMENT WITHIN
THE MEANING OF SECTION 2(F) OF THE ORDER AND THAT HE HAD NO AUTHORITY,
EXPRESSED OR IMPLIED, TO ACT FOR THE EARB.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
FOUND THAT WARNER'S CONDUCT RESULTED IN A VIOLATION OF SECTION 19(A)(1)
AND (3) BY THE RESPONDENT. IN SO FINDING, THE ASSISTANT SECRETARY
CONCLUDED THAT WARNER WAS A "REPRESENTATIVE OF MANAGEMENT" WITHIN THE
MEANING OF SECTION 2(F) THROUGH HIS INVOLVEMENT IN THE PROCESSING AND
DISPOSITION OF GRIEVANCES AND ADMINISTRATIVE APPEALS MADE TO THE
DEPARTMENT OF THE NAVY. HE NOTED THAT FOR A REPRESENTATIVE OF
MANAGEMENT TO BECOME INVOLVED IN THE INTERNAL ELECTIONS OF A LABOR
ORGANIZATION CLEARLY CONTRAVENES THE STRICTURES OF SECTION 1(B) OF THE
ORDER, INTERFERES WITH RIGHTS OF EMPLOYEES ASSURED UNDER SECTION 1(A)
AND CONSTITUTES A VIOLATION OF SECTION 19(A)(1) AND (3) OF THE ORDER.
IN DETERMINING THAT WARNER WAS A "REPRESENTATIVE OF MANAGEMENT," THE
ASSISTANT SECRETARY OBSERVED THAT WARNER WAS CLOTHED WITH BOTH ACTUAL
AND APPARENT AUTHORITY TO ACT IN BEHALF OF THE EARB IN THE
IMPLEMENTATION OF THE AGENCY'S LABOR-MANAGEMENT RELATIONS PROGRAM AS IT
RELATED TO EMPLOYEES OF THE SHIPYARD. THUS, IN HIS OFFICIAL JOB
CAPACITY, WARNER WAS RESPONSIBLE FOR REVIEWING AND RECOMMENDING THE
DISPOSITION OF GRIEVANCES AND ADMINISTRATIVE APPEALS INCLUDING "THOSE
INVOLVING COMPLAINTS FROM EMPLOYEES REPRESENTED BY ORGANIZED
GROUPS/UNIONS." FURTHER, WARNER HAD IN JUNE 1972, VISITED THE SHIPYARD
AS A DESIGNATED REPRESENTATIVE OF THE EARB TO DISCUSS HIS WORK AND THE
FUNCTIONS OF THE EARB. UNDER THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY FOUND THAT THE ENDORSEMENT BY WARNER OF A CANDIDATE IN THE
UNION ELECTION CONSTITUTED, IN EFFECT, AN EFFORT BY AGENCY MANAGEMENT TO
INFLUENCE THE RESULTS OF THAT ELECTION. IN THIS CONNECTION, THE
ASSISTANT SECRETARY VIEWED AS IMMATERIAL WHETHER WARNER'S SIGNATURE ON
THE LETTER OF ENDORSEMENT COULD BE CONSTRUED AS THAT OF A BOARD MEMBER
BECAUSE WARNER WAS, AS A MINIMUM, A REPRESENTATIVE OF THE BOARD, WITHIN
THE MEANING OF SECTION 2(F). THUS, HIS ACTION IN INJECTING HIMSELF IN
THE BMTC ELECTION WAS VIEWED AS INCOMPATIBLE WITH HIS OFFICIAL DUTIES
AND WAS, THEREFORE, IN CONFLICT WITH THE PROHIBITIONS CONTAINED IN
SECTION 1(B) OF THE ORDER.
HAVING FOUND WARNER TO BE A REPRESENTATIVE OF MANAGEMENT, THE
ASSISTANT SECRETARY FOUND WARNER'S EFFORTS TO INFLUENCE THE ELECTION
WITHIN THE BMTC INTERFERED WITH EMPLOYEE RIGHTS ASSURED UNDER SECTION
1(A) OF THE ORDER AND THEREBY VIOLATED SECTION 19(A)(1). MOREOVER, IT
WAS CONCLUDED THAT THE MEMORANDUM OF NOVEMBER 17, 1972, CONSTITUTED, IN
EFFECT, AN EFFORT BY AGENCY MANAGEMENT TO CONTROL IMPROPERLY THE BMTC BY
INFLUENCING ITS ELECTION OF OFFICERS IN VIOLATION OF SECTION 19(A)(3).
DEPARTMENT OF THE NAVY,
OFFICE OF THE SECRETARY,
WASHINGTON, D.C.
AND
BOILERMAKERS,
LOCAL 290
BREMERTON, WASHINGTON
ON FEBRUARY 11, 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. 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. /1/
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 ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) AND (3) OF EXECUTIVE ORDER 11491 WHEN PAUL C.
WARNER, AN EMPLOYEE OF THE RESPONDENT'S EMPLOYEE APPEALS REVIEW BOARD
(EARB), LOCATED IN WASHINGTON, D.C., WROTE A MEMORANDUM ENDORSING GEORGE
R. ROBERTSON, AN EMPLOYEE OF THE PUGET SOUND NAVAL SHIPYARD, HEREINAFTER
CALLED SHIPYARD, FOR THE OFFICE OF PRESIDENT OF THE BREMERTON METAL
TRADES COUNCIL, HEREINAFTER CALLED BMTC. IT WAS ALLEGED THAT THE
MEMORANDUM IN QUESTION SUBSEQUENTLY WAS CIRCULATED BY MAIL, WITH A
SUPPORTING LETTER OF A BUSINESS REPRESENTATIVE OF SHEET METAL LOCAL NO.
274, ONE OF THE CONSTITUENT MEMBERS OF THE BMTC, TO THE OTHER
ORGANIZATIONS AFFILIATED WITH THE BMTC.
THE ESSENTIAL FACTS IN THE CASE, WHICH ARE NOT IN DISPUTE, 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 EARB, AMONG OTHER THINGS, IS ASSIGNED THE RESPONSIBILITY AND
AUTHORITY TO REVIEW AND MAKE FINAL DECISIONS ON EMPLOYEE GRIEVANCES,
ADMINISTRATIVE APPEALS AND COMPLAINTS OF DISCRIMINATION MADE TO THE
SECRETARY OF THE NAVY BY CIVILIAN EMPLOYEES OF THE NAVY, AND TO DIRECT
CIVILIAN PERSONNEL ACTION WITHIN THE DEPARTMENT OF THE NAVY NECESSARY
FOR THE IMPLEMENTATION OF THOSE DECISIONS. IT IS HEADED BY A CHAIRMAN,
FRANK A. ROBEY, JR., WHO REPORTS TO THE ASSISTANT SECRETARY OF THE NAVY
FOR MANPOWER AND RESERVE AFFAIRS. CHAIRMAN ROBEY SUPERVISES THE WORK OF
A REVIEW STAFF OF SEVEN EMPLOYEES, INCLUDING WARNER. /2/
THE CASES APPEALED TO THE EARB ARE ASSIGNED BY CHAIRMAN ROBEY TO
INDIVIDUAL MEMBERS OF THE REVIEW STAFF. CASE ANALYSTS, SUCH AS WARNER,
ARE RESPONSIBLE FOR REVIEWING CASES, PREPARING BRIEFS, CONSULTING WITH
THE CHAIRMAN AND MAKING SUCH RECOMMENDATIONS AS ARE WARRANTED. THE
CHAIRMAN REVIEWS THE PROPOSALS MADE BY ALL OF THE CASE ANALYSTS, MAKES
THE FINAL DETERMINATION, AND SIGNS ALL DECISIONS ISSUED BY THE EARB.
THE RECORD INDICATES THAT WARNER DOES NOT PLAN, EXECUTE OR IMPLEMENT ANY
DEPARTMENT OF THE NAVY POLICIES OR MAKE RECOMMENDATIONS FOR CHANGES OF
POLICY IN THE LABOR RELATIONS AREA.
ON APRIL 9, 1972, WARNER ASSUMED HIS DUTIES WITH THE EARB IN
WASHINGTON, D.C. PRIOR TO THAT TIME HE HAD BEEN EMPLOYED AT THE
SHIPYARD WHERE HE SERVED AS PRESIDENT OF THE BMTC UNTIL HE WAS DEFEATED
IN 1971. AFTER HIS DEFEAT, HE CONTINUED TO SERVE AS PRESIDENT OF
COPPERSMITHS' LOCAL 463 IN BREMERTON, WASHINGTON, WHICH POST HE RETAINED
AFTER MOVING TO WASHINGTON, D.C. AS AN EMPLOYEE OF THE EARB. THE RECORD
INDICATES THAT IN JUNE 1972, WARNER WAS INVITED BY CAPTAIN REH OF THE
SHIPYARD TO ATTEND A CHANGE OF COMMAND CEREMONY AT THE SHIPYARD AND THAT
THE CHAIRMAN APPOINTED WARNER AS AN EARB REPRESENTATIVE TO ATTEND THE
CEREMONY AND DISCUSS THE ORGANIZATION OF THE EARB. WARNER SUBSEQUENTLY
APPEARED IN SUCH CAPACITY AT THE SHIPYARD.
THE MEMORANDUM OF NOVEMBER 17, 1972, WHICH PRECIPITATED THE CHARGE
AND COMPLAINT IN THIS CASE, WAS ENCAPTIONED "PAUL C. WARNER,
PRESIDENT-COPPERSMITH' LOCAL #463; SUBJECT: MR. GEORGE ROBERTSON,
PRESIDENT SHEETMETAL WORKERS LOCAL NO. 274." IT ENDORSED ROBERTSON'S
CANDIDACY FOR THE NEXT PRESIDENT OF THE BMTC AND WAS SIGNED "PAUL C.
WARNER, EMPLOYEE APPEALS REVIEW BOARD, WASHINGTON, D.C." THE MEMORANDUM
WAS CIRCULATED TO THE VARIOUS AFFILIATE LOCALS OF THE BMTC.
THE ADMINISTRATIVE LAW JUDGE NOTED THAT CHAIRMAN ROBEY FIRST BECAME
AWARE OF WARNER'S MEMORANDUM AND HIS CONTINUING PRESIDENCY OF
COPPERSMITHS' LOCAL 463 AFTER THE FILING OF THE UNFAIR LABOR PRACTICE
CHARGE IN THIS MATTER IN JANUARY 1973. THEREAFTER, THE CHAIRMAN
INDICATED HIS DOUBTS TO WARNER AS TO THE PROPRIETY OF HIS HOLDING THIS
OFFICE AND WARNER PROCEEDED TO RESIGN AS PRESIDENT OF COPPERSMITHS'
LOCAL 463 AND SENT A MEMORANDUM TO ROBEY ADVISING HIM OF THIS ACTION.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE INSTANT 19(A)(1)
AND (3) COMPLAINT BE DISMISSED. HE CONCLUDED, IN THIS REGARD, THAT THE
NOVEMBER 1972, ENDORSEMENT MADE BY WARNER WAS NOT AN AGENCY FUNCTION,
NOR WAS IT KNOWN BY THE RESPONDENT THAT AN ENDORSEMENT HAD BEEN MADE.
IN REACHING HIS DECISION, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT
WARNER ON NOVEMBER 17, 1972, WAS NOT A MANAGEMENT OFFICIAL NOR A
REPRESENTATIVE OF MANAGEMENT WITHIN THE MEANING OF SECTION 2(F) OF THE
ORDER AND THAT HE HAD NO AUTHORITY, EXPRESSED OR IMPLIED, TO ACT FOR THE
EARB.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I FIND, CONTRARY TO
THE ADMINISTRATIVE LAW JUDGE, THAT WARNER'S CONDUCT RESULTED IN A
VIOLATION OF SECTION 19(A)(1) AND (3) BY THE RESPONDENT. SECTION 1(B)
OF THE ORDER STATES, IN PERTINENT PART, THAT, "PARAGRAPH (A) OF THIS
SECTION DOES NOT AUTHORIZE PARTICIPATION IN THE MANAGEMENT OF A LABOR
ORGANIZATION OR ACTING AS A REPRESENTATIVE OF SUCH AN ORGANIZATION BY A
SUPERVISOR, . . . OR BY AN EMPLOYEE WHEN THE PARTICIPATION OR ACTIVITY
WOULD RESULT IN A CONFLICT OR APPARENT CONFLICT OF INTEREST OR OTHERWISE
BE INCOMPATIBLE WITH . . . THE OFFICIAL DUTIES OF THE EMPLOYEE."
(EMPHASIS ADDED.) "AGENCY MANAGEMENT" IS DEFINED IN SECTION 2(F) OF THE
ORDER, IN PERTINENT PART, AS: "-- 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."
(EMPHASIS ADDED. ALTHOUGH, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE,
THE EVIDENCE REVEALED THAT, AT ALL TIMES MATERIAL HEREIN, WARNER WAS
NEITHER A MANAGEMENT OFFICIAL NOR A SUPERVISOR WITHIN THE MEANING OF THE
ORDER, I FIND, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT WARNER WAS
A "REPRESENTATIVE OF MANAGEMENT" WITHIN THE MEANING OF SECTION 2(F) BY
VIRTUE OF HIS ROLE IN THE PROCESSING AND THE DISPOSITION OF GRIEVANCES
AND ADMINISTRATIVE APPEALS MADE TO THE DEPARTMENT OF THE NAVY. IN MY
VIEW, FOR A "REPRESENTATIVE OF MANAGEMENT" TO BECOME INVOLVED IN THE
ELECTION OF CANDIDATES FOR OFFICE IN A LABOR ORGANIZATION OR A COUNCIL
OF LABOR ORGANIZATIONS CLEARLY CONTRAVENES THE ABOVE-NOTED STRICTURES OF
SECTION 1(V) OF THE ORDER, INTERFERES WITH RIGHTS OF EMPLOYEES ASSURED
UNDER SECTION 1(A) AND CONSTITUTES A VIOLATION OF SECTION 19(A)(1) AND
(3) OF THE ORDER.
IN DETERMINING THAT WARNER WAS A "REPRESENTATIVE OF MANAGEMENT," AS
THAT TERM IS USED IN SECTION 2(F) OF THE ORDER, IT WAS NOTED THAT THE
EVIDENCE ESTABLISHES THAT WARNER WAS CLOTHED WITH BOTH ACTUAL AND
APPARENT AUTHORITY TO ACT IN BEHALF OF THE EARB IN THE IMPLEMENTATION OF
THE AGENCY'S LABOR-MANAGEMENT RELATIONS PROGRAM AS IT RELATED IN
EMPLOYEES OF THE SHIPYARD. IN THIS REGARD, WARNER, IN HIS JOB CAPACITY
AS AN EARB CASE ANALYST, WAS RESPONSIBLE FOR REVIEWING AND RECOMMENDING
THE DISPOSITION OF, AMONG OTHER THINGS, GRIEVANCES AND ADMINISTRATIVE
APPEALS, INCLUDING (ACCORDING TO HIS OFFICIAL JOB DESCRIPTION), "THOSE
INVOLVING COMPLAINTS FROM EMPLOYEES REPRESENTED BY ORGANIZED
GROUPS/UNIONS." THUS, CLEARLY, WARNER HAD THE AUTHORITY TO ACT FOR THE
AGENCY ON MATTERS RELATING TO THE IMPLEMENTATION OF THE RESPONDENT'S
LABOR-MANAGEMENT RELATIONS PROGRAM ESTABLISHED UNDER THE ORDER.
MOREOVER, WARNER WAS CLOTHED WITH APPARENT AUTHORITY WHEN, IN JUNE 1972,
HE WAS INVITED TO VISIT THE SHIPYARD AS A REPRESENTATIVE OF THE EARB;
WAS DESIGNATED BY CHAIRMAN ROBEY AS THE EARB REPRESENTATIVE AT THE
CEREMONY INVOLVED; AND APPEARED IN SUCH OFFICIAL CAPACITY BEFORE THE
SHIPYARD EMPLOYEES DISCUSSING HIS WORK AND THE FUNCTIONS OF THE EARB.
UNDER THESE CIRCUMSTANCES, I FIND THAT WHEN WARNER INJECTED HIMSELF
INTO THE BMTC ELECTION BY ENDORSING A CANDIDATE, IN EFFECT, SUCH CONDUCT
CONSTITUTED AN EFFORT BY AGENCY MANAGEMENT TO INFLUENCE THE RESULTS OF
THAT ELECTION. IN THIS CONNECTION, I VIEW IT AS IMMATERIAL WHETHER THE
SIGNATURE ON THE MEMORANDUM OF NOVEMBER 17, 1972, OF "PAUL C. WARNER,
EMPLOYEE APPEALS REVIEW BOARD, WASHINGTON, D.C." COULD OR COULD NOT BE
INTERPRETED AS THAT OF A "BOARD MEMBER," BECAUSE WARNER WAS, AS A
MINIMUM, A REPRESENTATIVE OF THE BOARD WITHIN THE MEANING OF SECTION
2(F), EVEN THOUGH A NONMEMBER. BASED ON THE FOREGOING, I FIND THAT
WARNER'S ACTION IN INJECTING HIMSELF IN THE BMTC ELECTION WAS
INCOMPATIBLE WITH HIS OFFICIAL DUTIES AND WAS, THEREFORE, IN CONFLICT
WITH THE PROHIBITIONS CONTAINED IN SECTION 1(B) OF THE ORDER. FURTHER,
HAVING FOUND WARNER TO BE A REPRESENTATIVE OF MANAGEMENT, IT FOLLOWS
THAT HIS EFFORT TO INFLUENCE THE ELECTION WITHIN THE BMTC INTERFERED
WITH EMPLOYEE RIGHTS ASSURED UNDER SECTION 1(A) OF THE ORDER TO FORM,
JOIN AND ASSIST A LABOR ORGANIZATION AND, THEREBY, VIOLATED SECTION
19(A)(1). MOREOVER, IN MY VIEW, THE MEMORANDUM OF NOVEMBER 17, 1972,
CONSTITUTED, IN EFFECT, AN EFFORT BY AGENCY MANAGEMENT TO CONTROL
IMPROPERLY THE BMTC BY INFLUENCING ITS ELECTION OF OFFICERS AND,
THEREBY, VIOLATED SECTION 19(A)(3) 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 EMPLOYEE APPEALS
REVIEW BOARD, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH OR ATTEMPTING TO CONTROL THE OUTCOME OF ANY
ELECTION OF OFFICERS OF THE BREMERTON METAL TRADERS COUNCIL BY ENDORSING
ANY CANDIDATE FOR OFFICE, OR BY PARTICIPATING, IN ANY LIKE OR RELATED
MANNER, IN THE INTERNAL AFFAIRS OF THE BREMERTON METAL TRADES COUNCIL.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) DIRECT ALL MANAGEMENT OFFICIALS, SUPERVISORS AND REPRESENTATIVES
OF MANAGEMENT OF THE EMPLOYEES APPEALS REVIEW BOARD NOT TO INTERFERE
WITH, OR ATTEMPT TO CONTROL THE OUTCOME OF, ANY ELECTION OF OFFICERS OF
THE BREMERTON METAL TRADES COUNCIL BY ENDORSING ANY CANDIDATE FOR OFFICE
OR BY PARTICIPATING, IN ANY LIKE OR RELATED MANNER, IN THE INTERNAL
AFFAIRS OF THE BREMERTON METAL TRADES COUNCIL.
(B) POST AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON,
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
EMPLOYEE APPEALS REVIEW BOARD AND SHALL BE POSTED AND MAINTAINED BY THE
COMMANDING OFFICER OF THE SHIPYARD 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 HAD BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
MAY 31, 1974
/1/ AT THE HEARING, THE RESPONDENT RENEWED ITS MOTION TO DISMISS THE
COMPLAINT ON THE BASIS THAT IT HAD MADE A "SATISFACTORY" WRITTEN OFFER
OF SETTLEMENT. THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE QUESTION
WHETHER THE PROPOSED SETTLEMENT OFFER WAS ADEQUATE WAS RENDERED MOOT IN
VIEW OF HIS RECOMMENDATIONS TO DISMISS THE COMPLAINT. UNDER THE
ASSISTANT SECRETARY'S REGULATIONS ONLY THE ASSISTANT REGIONAL DIRECTOR
FOR LABOR-MANAGEMENT SERVICES HAD THE AUTHORITY TO APPROVE WRITTEN
OFFERS OF SETTLEMENT. BECAUSE NO SUCH APPROVAL OCCURRED HEREIN, IT WAS
CONCLUDED THAT THE RESPONDENT'S MOTION TO DISMISS SHOULD BE, AND IT
HEREBY IS, DENIED.
/2/ IT WAS UNDISPUTED THAT ALTHOUGH THREE OTHER BOARD MEMBER
POSITIONS ORIGINALLY WERE AUTHORIZED, THEY NEVER HAVE BEEN FILLED.
WE WILL NOT INTERFERE WITH OR ATTEMPT TO CONTROL THE OUTCOME OF ANY
ELECTION OF OFFICERS OF THE BREMERTON METAL TRADES COUNCIL BY ENDORSING
ANY CANDIDATE FOR OFFICE, OR BY PARTICIPATING, IN ANY LIKE OR RELATED
MANNER, IN THE INTERNAL AFFAIRS OF THE BREMERTON METAL TRADES COUNCIL.
WE WILL DIRECT ALL MANAGEMENT OFFICIALS, SUPERVISORS AND
REPRESENTATIVES OF MANAGEMENT OF THE EMPLOYEE APPEALS REVIEW BOARD NOT
TO INTERFERE WITH, OR ATTEMPT TO CONTROL THE OUTCOME OF, ANY ELECTION OF
OFFICERS OF THE BREMERTON METAL TRADES COUNCIL BY ENDORSING ANY
CANDIDATE FOR OFFICE, OR BY PARTICIPATING, IN ANY LIKE OR RELATED
MANNER, IN THE INTERNAL AFFAIRS OF THE BREMERTON METAL TRADES COUNCIL.
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
DEPARTMENT OF THE NAVY
OFFICE OF THE SECRETARY
WASHINGTON, D.C.,
AND
BOILERMAKERS, LOCAL 290
BREMERTON, WASHINGTON,
LEE A. HOLLEY, ESQUIRE
2700 FIRST AVENUE
SEATTLE, WASHINGTON 98121
STUART M. FOSS, ESQUIRE
LABOR RELATIONS ADVISOR
OFFICE OF CIVILIAN MANPOWER MANAGEMENT
DEPARTMENT OF THE NAVY
1735 NORTH LYNN STREET
ARLINGTON, VIRGINIA 22209
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER) PURSUANT TO A NOTICE OF HEARING ISSUED SEPTEMBER 13, 1973, BY THE
ASSISTANT REGIONAL DIRECTOR OF THE U.S. DEPARTMENT OF LABOR, LABOR
MANAGEMENT SERVICES ADMINISTRATION, SAN FRANCISCO REGION.
ON APRIL 26, 1973, A COMPLAINT WAS FILED BY BOILERMAKERS UNION LOCAL
290, BREMERTON, WASHINGTON, (HEREIN REFERRED TO AS COMPLAINANT) AGAINST
THE DEPARTMENT OF THE NAVY, OFFICE OF THE SECRETARY (HEREIN CALLED THE
RESPONDENT). THE COMPLAINANT CHARGED THE RESPONDENT WITH HAVING
VIOLATED SECTIONS 19(A)(1) AND (3) OF THE ORDER WHEN ON NOVEMBER 17,
1972, PAUL C. WARNER, A MEMBER OF RESPONDENT'S EMPLOYEE APPEALS REVIEW
BOARD WROTE A LETTER ENDORSING GEORGE P. ROBERTSON, AN EMPLOYEE OF THE
PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, FOR THE OFFICE OF
PRESIDENT OF THE BREMERTON METAL TRADES COUNCIL (HEREIN REFERRED TO AS
BMTC AND/OR INCUMBENT UNION); THE LETTER WAS SUBSEQUENTLY CIRCULATED BY
MAIL WITH THE SUPPORTING LETTER OVER THE SIGNATURE OF PATRICK WOLN,
BUSINESS REPRESENTATIVE OF SHEETMETAL LOCAL NO. 274, TO THE VARIOUS
ORGANIZATIONS AFFILIATED WITH THE BMTC IN AN ATTEMPT TO INFLUENCE THE
ELECTION OF OFFICERS. THE LETTER BY PAUL WARNER AS A MEMBER OF THE
BOARD WAS STATED TO HAVE BEEN WRITTEN WITH INTENT AND PURPOSE OF MAKING
DECISIONS AFFECTING FEDERAL EMPLOYEES AND IN VIOLATION OF THE ORDER.
/1/
(A) EMPLOYEE APPEALS REVIEW BOARD
THE DEPARTMENT OF THE NAVY IN NOVEMBER 1971 ESTABLISHED AN EMPLOYEE
APPEALS REVIEW BOARD (HEREIN REFERRED TO AS EARB), AND EFFECTIVE JANUARY
1, 1972, ITS MISSION UNDER SECRETARY OF NAVY INSTRUCTION 12,000.21
PROVIDED AMONG OTHER THINGS THAT IT REVIEW AND MAKE FINAL DECISIONS ON
EMPLOYEE GRIEVANCES, ADMINISTRATIVE APPEALS AND COMPLAINTS OF
DISCRIMINATION MADE TO THE SECRETARY OF THE NAVY; TO DIRECT CIVILIAN
PERSONNEL ACTIONS WITHIN THE DEPARTMENT OF THE NAVY NECESSARY FOR
IMPLEMENTATION OF DECISIONS; AND, WITH RESPECT TO COMPLAINTS OF
DISCRIMINATION DIRECT SUCH ACTIONS AS ARE NECESSARY FOR IMPROVEMENT OF
PERSONNEL OR SUPERVISORY PRACTICES WITHIN THE DEPARTMENT. /2/ THESE
FUNCTIONS HAD PREVIOUSLY BEEN PERFORMED BY THE RESPONDENT'S OFFICE OF
CIVILIAN MANPOWER MANAGEMENT.
THE ORGANIZATIONAL STRUCTURE OF THE BOARD UNDER THE SECRETARY OF THE
NAVY INSTRUCTION PROVIDED FOR A CHAIRMAN OF THE BOARD AND OTHER BOARD
MEMBERS EACH OF WHOM IS A FULL-TIME CAREER CIVIL SERVICE EMPLOYEE /3/
AND A REVIEW STAFF COMPOSED OF CASE ANALYSTS AND CLERICAL PERSONNEL.
FRANK A. ROBEY, JR., HAS BEEN CHAIRMAN OF THE EARB SINCE ITS
INCEPTION OF JANUARY 1, 1972. HE REPORTS TO THE ASSISTANT SECRETARY OF
NAVY FOR MANPOWER AND RESERVE AFFAIRS AND SUPERVISES THE WORK OF A
REVIEW STAFF OF SEVEN (7) EMPLOYEES INCLUDING PAUL C. WARNER. THE EARB
FUNCTIONS ARE IN THE NATURE OF AN APPELLATE COURT REVIEW IN THE AREA OF
ITS SUBJECT MATTER JURISDICTION AND ITS ADJUDICATION IS PREMISED ON CASE
RECORDS MADE AT THE ACTIVITY LEVEL. NO DE-NOVO HEARINGS ARE HELD.
CASES APPEALED TO THE EARB ARE ASSIGNED TO INDIVIDUAL MEMBERS OF THE
REVIEW STAFF BY CHAIRMAN ROBEY. ONE OF THE REVIEW STAFF GS-11 CASE
ANALYSTS, IS PAUL C. WARNER, /4/ WHO HAS BEEN EMPLOYED BY THE EARB
SINCE APRIL 9, 1972. HE, LIKE OTHER CASE ANALYSTS, IS RESPONSIBLE FOR
REVIEWING ASSIGNED CASES, PREPARING BRIEFS, CONSULTING WITH THE CHAIRMAN
AND MAKING RECOMMENDATIONS AS TO THE DECISION WARRANTED. WARNER AS A
CASE ANALYST DOES NOT HAVE A PRIVATE OFFICE BUT WORKS AT A DESK IN AN
OPEN AREA OF THE BOARD'S OFFICE SPACE. CHAIRMAN ROBEY REVIEWS THE
PROPOSALS MADE BY ALL CASE ANALYSTS, MAKES THE FINAL DETERMINATION AND
SIGNS ALL DECISIONS ISSUED BY THE EARB. IN THE PERFORMANCE OF HIS JOB
DUTIES WARNER DOES NOT PLAN, EXECUTE OR IMPLEMENT ANY NAVY POLICIES OR
MAKE RECOMMENDATIONS FOR CHANGES IN POLICY IN THE LABOR RELATIONS AREA.
THE JOB DESCRIPTION FOR HIS POSITION MORE SPECIFICALLY STATES:
"MAJOR DUTIES AND RESPONSIBILITIES. THE INCUMBENT THOROUGHLY REVIEWS
LESS DIFFICULT AND
COMPLEX CASES SUBMITTED TO EARB FOR DECISION, PARTICULARLY THOSE
INVOLVING COMPLAINTS FROM
EMPLOYEES REPRESENTED BY ORGANIZED GROUPS/UNIONS. HE PREPARED, FOR
REVIEW BY EARB, A BRIEF,
INCLUDING RECOMMENDATIONS, A PROPOSED SECRETARY OF THE NAVY DECISION,
PROPOSED PERSONNEL
ACTIONS NECESSARY FOR IMPLEMENTATION OF THE DECISION. DURING THE
PROCESSING OF A CASE, THE
INCUMBENT MAY REQUEST ADMINISTRATIVE INTERPRETATIONS OR ADVICE FROM
STAFF SPECIALISTS OF
OFFICIALS OF THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT; HOWEVER,
SUCH REQUESTS WILL BE THE
LIMIT OF OCCMM'S PARTICIPATION IN THE ADJUDICATION OF THE CASE AND
INCUMBENT'S RECOMMENDATIONS
WILL BE BASED ON HIS INDEPENDENT JUDGMENT IN CONSIDERATION OF ALL
FACTS PRESENT IN A CASE."
(B) BREMERTON METAL TRADES COUNCIL AND CONSTITUENTS.
AMONG THE STIPULATIONS MADE BY THE PARTIES AT THE HEARING, ONE WAS TO
THE EFFECT THAT SINCE 1963, THE BREMERTON METAL TRADES COUNCIL, AFL-CIO,
IS THE LABOR OGANIZATION WHICH HOLDS EXCLUSIVE RECOGNITION FOR THE UNIT
COMPRISING ALL ELIGIBLE EMPLOYEES MATERIAL TO THE ISSUES HEREIN
INVOLVED. THE BREMERTON METAL TRADES COUNCIL IS A CONFEDERATION OF
TRADE UNIONS COMPRISED OF FIFTEEN CONSTITUENT LOCALS INCLUDING COMPLAINT
BOILERMAKER'S LOCAL 290, COPPERSMITH'S LOCAL 463, AND SHEETMETAL UNION
LOCAL NO. 274 REFERRED TO IN THE COMPLAINT.
(C) RESPONDENT EMPLOYEE PAUL C. WARNER.
THE RECORD REVEALS THAT FOR TEN YEARS PRIOR TO 1972, PAUL C. WARNER
WAS PRESIDENT OF BMTC, THE INCUMBENT UNION AS WELL AS PRESIDENT OF
COPPERSMITH'S LOCAL 463 SHEET METAL WORKERS INTERNATIONAL ASSOCIATION,
ONE OF THE BMTC'S AFFILIATED LOCALS.
IN DECEMBER 1971, HE WAS DEFEATED IN HIS BID FOR REELECTION AS
PRESIDENT OF THE BMTC BY ROBERT BOYD BUT CONTINUED TO SERVE AS PRESIDENT
OF COPPERSMITH'S LOCAL 463. BETWEEN JANUARY AND APRIL 9, 1972, WHEN HE
MOVED TO VIRGINIA AND BEGAN EMPLOYMENT WITH THE EARB, HE WORKED AS AN
INSPECTOR IN THE SAFETY OFFICE AT THE SHIPYARD.
IN JUNE 1972, PAUL C. WARNER WAS INVITED BY NAME BY PRODUCTION
OFFICER, CAPTAIN REH OF THE SHIPYARD TO ATTEND A CHANGE OF COMMAND
CEREMONY AT THAT INSTALLATION; PURSUANT TO THE REQUEST HE WAS APPOINTED
AS AN EARB REPRESENTATIVE BY CHAIRMAN ROBEY TO ATTEND THE CEREMONY AND
TALK CONCERNING THE ORGANIZATION OF THE BOARD. HE APPEARED IN THAT
CAPACITY AND MADE A SPEECH AT THE NAVAL SUPPLY CENTER. HIS TRAVEL
EXPENSES FOR THE TRIP WERE PAID FOR BY THE SHIPYARD. THIS IS THE ONLY
OCCASION REFLECTED BY THE EVIDENCE OF RECORD THAT HE HAS BEEN APPOINTED
TO REPRESENT THE BOARD IN ANY CAPACITY AND HE HAS NOT SINCE RETURNED TO
THE SHIPYARD.
IN A MEMORANDUM DATED NOVEMBER 17, 1972, "SUBJECT: MR. GEORGE
ROBERTSON, PRESIDENT SHEETMETAL WORKERS LOCAL NO. 274," AND SIGNED BY
"PAUL C. WARNER, EMPLOYEE APPEALS REVIEW BOARD, WASHINGTON, D.C.," MR.
ROBERTSON WAS ENDORSED AS A CANDIDATE FOR THE NEXT PRESIDENT OF THE
BMTC. /5/ THERE WAS NO DESIGNATION AS TO WHOM THE MEMORANDUM WAS
ADDRESSED. THE ELECTION WAS HELD ON DECEMBER 27, 1972, AND COMPLAINANT
WILLIAM K. HOLT ONE OF THE CANDIDATES TESTIFIED, THAT HE FOUND OUT ABOUT
THE MEMORANDUM ABOUT TWO WEEKS BEFORE THE ELECTION BUT OTHER THAN
DISCUSS ITS LEGALITY DID NOTHING ABOUT IT UNTIL AFTER THE ELECTION. IT
WAS STIPULATED THAT THERE WERE THREE CANDIDATES SEEKING THE OFFICE OF
PRESIDENT AND THAT ROBERT BOYD WAS ELIMINATED ON THE FIRST BALLOT; IN
THE RUN-OFF ELECTION GEORGE ROBERTSON DEFEATED WILLIAM K. HOLT BY A 15
TO 14 MARGIN OF THE DELEGATES OF THE CONSTITUTENT UNIONS.
THE PRINCIPAL ISSUE PRESENTED FOR CONSIDERATION IS WHETHER PAUL C.
WARNER AT THE TIME HE WROTE THE MEMORANDUM OF ENDORSEMENT ON NOVEMBER
17, 1972, WAS AN AGENCY MANAGEMENT OFFICIAL WITHIN THE PURVIEW OF THE
ORDER, /6/ AND, WHETHER SUCH ACTION CONSTITUTED VIOLATIONS OF SECTIONS
19(A)(1) AND (3) OF THE ORDER. INCIDENTAL TO THIS ISSUE, THE
COMPLAINANT CLAIMS AN ESTOPPEL ON THE PART OF THE RESPONDENT TO DENY
THAT PAUL C. WARNER IS A MEMBER OF THE BOARD, OR AN AGENCY OFFICIAL OR
REPRESENTATIVE.
THE RESPONDENT'S MOTION TO DISMISS THE COMPLAINT ON THE BASIS THAT A
SATISFACTORY WRITTEN OFFER OF SETTLEMENT HAS BEEN MADE WITHIN THE
MEANING OF SECTION 103.7 OF THE ASSISTANT SECRETARY'S RULES /7/ AND HAS
INDEED BEEN EFFECTUATED WAS REFERRED TO ME BY THE ASSISTANT REGIONAL
DIRECTOR AND RENEWED AT THE HEARING. I DID NOT CONSIDER IT APPROPRIATE
TO RULE ON THE MOTION FROM THE BENCH WITHOUT BENEFIT OF TESTIMONY AND
RESERVED JUDGMENT ON IT FOR CONSIDERATION IN MY DECISION. /8/ IN VIEW
OF THE DISPOSITION RECOMMENDED ON THE BASIS OF FINDINGS AS TO THE MERITS
OF THE CASE, THE QUESTION OF WHETHER THE PROPOSED SETTLEMENT OFFER WAS
ADEQUATE AND EFFECTUATED IS RENDERED MOOT.
THE REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT
RELATIONS PROVIDE THAT: "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. /9/
SECTION 19(A)(1) AND (6) OF THE ORDER ARE ALLEGED TO HAVE BEEN
VIOLATED AND ARE AS FOLLOWS:
"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;
(3) SPONSOR, CONTROL, OR OTHERWISE ASSIST A LABOR ORGANIZATION . . .
"
AT THE HEARING EARB CHAIRMAN ROBEY TESTIFIED TO THE EFFECT THAT HE
FIRST BECAME AWARE OF EMPLOYEE PAUL C. WARNER'S NOVEMBER 17, 1972,
LETTER AND THAT HE WAS PRESIDENT OF THE COPPERSMITH'S LOCAL AFTER THE
FILING OF THE UNFAIR LABOR PRACTICE CHARGE ON JANUARY 29, 1973; HE WAS
UNAWARE OF ANY DEPARTMENTAL REGULATION PRECLUDING WARNER FROM RETAINING
THE PRESIDENCY WHILE SERVING AS AN EMPLOYEE BUT HE DISCOURAGED IT AS HE
DID NOT BELIEVE IT PROPER FOR AN EMPLOYEE OF EARB TO RETAIN THE
PRESIDENCY OF A LOCAL UNION. IN A LETTER DATED MARCH 2, 1973, ADDRESSED
TO COPPERSMITH'S LOCAL NO. 463, EMPLOYEE WARNER RESIGNED AS ITS
PRESIDENT /10/ AND SENT A MEMORANDUM DATED MARCH 1, 1973, TO EARB
CHAIRMAN ROBEY ADVISING HIM OF THE ACTION TAKEN PURSUANT TO THEIR
PREVIOUS DISCUSSION. /11/
FROM THE FOREGOING I FURTHER FIND AS FOLLOWS:
(1) THAT PAUL C. WARNER BEGAN WORK AS AN EMPLOYEE OF RESPONDENT'S
EARB ON APRIL 9, 1972, AND HAS SINCE BEEN EMPLOYED BY THAT AGENCY. HE
WAS ALSO PRESIDENT OF COPPERSMITH'S LOCAL NO. 463, ONE OF FIFTEEN
CONSTITUENT LOCALS OF THE BREMERTON METAL TRADES COUNCIL, FOR A NUMBER
OF YEARS PRIOR TO HIS RESIGNATION ON MARCH 2, 1973. PRIOR TO EMPLOYMENT
WITH EARB HE WAS PRESIDENT OF BMTC FOR TEN YEARS BEFORE HE WAS DEFEATED
IN AN ELECTION IN DECEMBER 1971.
(2) IN JUNE 1972 EMPLOYEE WARNER ATTENDED A CHANGE-IN-COMMAND
CEREMONY AT THE BREMERTON NAVAL SHIPYARD PURSUANT TO AUTHORIZATION BY
CHAIRMAN FRANK ROBEY AND MADE A SPEECH CONCERNING THE ORGANIZATION OF
THE EARB. THE RECORD DOES NOT REVEAL THAT HE IN ANY WAY MISREPRESENTED
HIS STATUS OR EXCEEDED THE EXTENT OF HIS AUTHORIZATION AT THE CEREMONY.
ANY OFFICIAL STATUS WHICH HE HAD AS A REPRESENTATIVE OF THE AGENCY
EXPIRED UPON COMPLETION OF THE CEREMONIAL FUNCTION. THIS IS THE ONLY
OCCASION SHOWN BY THE RECORD OF HIS HAVING BEEN APPOINTED TO REPRESENT
EARB AND I CONCLUDE THAT THIS WAS AN ISOLATED INCIDENT AND MAY NOT
REASONABLY BE CONSIDERED AS A PART OF HIS JOB FUNCTION. /12/
(3) ON NOVEMBER 17, 1972, EMPLOYEE WARNER WROTE A MEMORANDUM
ENDORSING GEORGE ROBERTSON FOR THE NEXT PRESIDENT OF BMTC. HE SIGNED
THE MEMORANDUM "PAUL C. WARNER, EMPLOYEE APPEALS BOARD, WASHINGTON,
D.C." THE MEMORANDUM SHOWS THAT THE ENDORSEMENT WAS PREDICATED ON THE
WORK RELATIONSHIP HE HAD WITH ROBERTSON WHILE PRESIDENT OF BMTC BEFORE
DECEMBER 1971. /13/ REGARDLESS OF THE PROPRIETY OF THE ENDORSEMENT
EMPLOYEE WARNER DID NOT IN THE MEMORANDUM REPRESENT HIMSELF AS BEING A
BOARD MEMBER OR AN OFFICIAL REPRESENTATIVE OF THE EARB. I CONCLUDE THAT
EMPLOYEE WARNER'S MEMORANDUM OF ENDORSEMENT WAS MADE WITHOUT THE
KNOWLEDGE OF OR AUTHORIZATION BY CHAIRMAN ROBEY OR ANY OTHER AGENCY
OFFICIAL.
(4) ON JANUARY 29, 1972, THE COMPLAINANT FILED AN UNFAIR LABOR
PRACTICE CHARGE /14/ AGAINST THE RESPONDENT ALLEGING AMONG OTHER THINGS
THAT PAUL C. WARNER AS A MEMBER OF THE EMPLOYEE APPEALS REVIEW BOARD
MUST BE CONSIDERED AS A PART OF MANAGEMENT IN ACCORDANCE WITH SECTION 2
PARAGRAPH (F) /15/ OF THE ORDER AND THAT THE ENDORSEMENT BY AGENCY
MANAGEMENT OF A CANDIDATE FOR OFFICE WITHIN A LABOR ORGANIZATION
INFLUENCED THE ELECTION AND CONSTITUTED VIOLATION OF SECTIONS 19(A)(1)
AND (3) OF THE ORDER. THE ALLEGATION WAS LATER REITERATED IN THE
COMPLAINT. I FIND THAT AT THE TIME THE UNFAIR LABOR PRACTICE CHARGE WAS
MADE ON JANUARY 29, 1973, THAT COMPLAINANT HAD NOT ASCERTAINED THE TRUE
FACTS AS PAUL C. WARNER'S STATUS WITH THE EARB; THAT WARNER WAS NOT IN
FACT A MEMBER OF THE EARB NOR WAS HE THEN A REPRESENTATIVE OF THE BOARD,
WITHIN THE MEANING OF SECTION 2(F) OF THE ORDER. /16/ THERE WAS NO
SUFFICIENT BASIS ON PART OF COMPLAINANT TO INFER FROM WARNER'S
APPEARANCE AT THE CHANGE-IN-COMMAND CEREMONY SOME FIVE MONTHS BEFORE,
THAT HE WAS A MEMBER OF THE EARB OR THAT HE ACTING BY OR ON ITS BEHALF
AS AN AGENT OR REPRESENTATIVE AT THE TIME THE MEMORANDUM OF ENDORSEMENT
WAS MADE.
(5) UPON LEARNING OF THE JANUARY 29, 1972, UNFAIR LABOR PRACTICE
CHARGE SOMETIME IN FEBRUARY OF THE SAME YEAR EARB CHAIRMAN FRANK ROBEY
DISCUSSED IT WITH EMPLOYEE WARNER AND OBTAINED HIS LETTER OF RESIGNATION
AS PRESIDENT OF COPPERSMITH'S LOCAL NO. 463 AND A MEMORANDUM EXPRESSING
REGRET FOR AN EMBARRASSMENT WHICH MAY HAVE OCCURRED BY REASON OF
RETENTION OF THE UNION OFFICE AND AN EXPRESSION OF INTENT NOT TO DISCUSS
INTRA-UNION MATTERS WITH FORMER ASSOCIATES AT BREMERTON EVEN IF SO
REQUESTED, OR PARTICIPATE IN PUGET SOUND NAVAL SHIPYARD UNION AFFAIRS,
IN ANY MANNER, WHILE A MEMBER OF THE BOARD. I FIND THAT EARB CHAIRMAN
ROBEY TOOK PROMPT ACTION TO INFORM WARNER REGARDING THE PROPRIETY OF THE
NOVEMBER 17, 1972 MEMORANDUM; HE OBTAINED HIS RESIGNATION AS PRESIDENT
OF COPPERSMITH'S LOCAL 463 AND SECURED HIS ASSURANCE THAT HE WOULD NOT
THEREAFTER DISCUSS INTRA-UNION MATTERS WITH FORMER ASSOCIATES AT
BREMERTON OR PARTICIPATE IN PUGET SOUND NAVAL SHIPYARD UNION AFFAIRS
WHILE A MEMBER OF THE BOARD. /17/
(6) IN VIEW OF RESPONDENT'S ACTION IN REFERRING TO EMPLOYEE WARNER AS
A BOARD MEMBER IN DOCUMENTS SUBMITTED OF RECORD INCLUDING THE MOTION TO
DISMISS THE COMPLAINANT CLAIMS THAT RESPONDENTS IS ESTOPPED TO DENY THAT
HE IS A MANAGEMENT OFFICIAL OR REPRESENTATIVE OF THE BOARD. I DO NOT
SUBSCRIBE TO THIS POSITION. IN THE FIRST PLACE, THE COMPLAINANT WAS THE
FIRST PARTY TO REFER TO WARNER'S STATUS AS A BOARD MEMBER IN THE UNFAIR
LABOR PRACTICE CHARGE; SECOND, THE COMPLAINANT APPARENTLY ASSUMED OR
INFERRED SUCH STATUS FROM AN ISOLATED APPEARANCE AT A CHANGE IN COMMAND
CEREMONY AT THE BREMERTON SHIPYARD SOME FIVE MONTHS BEFORE THE UNFAIR
LABOR PRACTICE WAS ALLEGED TO HAVE OCCURRED WITHOUT EVIDENCE OF ANY
INTERCURRENT ACTION, PARTICIPATION OR REPRESENTATION ON WARNER'S PART TO
SUGGEST THAT HE WAS AN OFFICIAL OF THE EARB OR A MEMBER OF THE BOARD, OR
A REPRESENTATIVE OF THE RESPONDENT AGENCY; THIRD TO SUSTAIN THE PLEA OF
ESTOPPEL WOULD REQUIRE THAT I PREDICATE MY DECISION ON FACTS FULLY
LITIGATED AT THE HEARING THAT ARE SHOWN TO BE FALSE; FOURTH; THE
RESPONDENT IS NOT SHOWN TO HAVE MISLED OR MADE REPRESENTATIONS TO THE
COMPLAINANT CAUSING IT TO RELY ON ITS ALLEGATION THAT HE, WARNER, WAS A
BOARD MEMBER OR REPRESENTATIVE OF THE BOARD AT THE TIME OF THE NOVEMBER
17, 1972 MEMORANDUM ENDORSEMENT; AND LAST, THE RECORD DOES NOT SHOW
THAT THERE HAVE BEEN ANY EARB BOARD MEMBERS SINCE ITS INCEPTION OTHER
THAN CHAIRMAN ROBEY. THE TERM MEMBER HAS BEEN LOOSELY USED TO INDICATE
WHAT SHOULD HAVE BEEN TERMED AGENCY EMPLOYEE.
(7) AT THE HEARING COMPLAINANT'S WITNESS WILLIAM K. HOLT, TESTIFIED
THAT ABOUT AUGUST 1, 1973, HE LEARNED OF A TELEPHONE CALL WHEREIN THE
SECRETARY-TREASURER OF THE BMTC WAS ASKED TO SPEAK TO MR. WARNER
PURSUANT TO A CALL FROM SHOP SUPERVISOR 856 AND FOLLOWING THE
CONVERSATION THE SECRETARY-TREASURER CAME TO HIM WITH A REQUEST AS TO
WHETHER HE WOULD SEND MR. WARNER A COPY OF MY LETTER OF RECONSIDERATION
OF JULY 30, 1973. I DO NOT VIEW THE INCIDENT AS BEING MATERIAL AS TO
THE ALLEGED 19(A)(1) AND (3) VIOLATIONS. CERTAINLY AS THE PERSON BEING
CHARGED WITH THE VIOLATIONS AGAINST THE AGENCY HE WAS INTERESTED IN THE
STATUS OF THE PROCEEDING. IT DOES NOT APPEAR TO BE UNREASONABLE FOR A
COPY OF THE RECONSIDERATION LETTER TO HAVE BEEN MADE AVAILABLE TO MR.
WARNER EITHER BY HIS AGENCY, THE SHIPYARD OR PURSUANT TO THE REQUEST TO
OBTAIN IT FROM MR. HOLT. CERTAINLY, THE REQUEST ALONE BY MR. HOLT
WITHOUT OTHER EVIDENCE DOES NOT INDICATE AN ATTEMPT TO ASSIST A RIVAL
LABOR ORGANIZATION, INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN
THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER.
(8) SECTION 1(A) OF THE ORDER PROVIDES IN PART THAT:
"EACH EMPLOYEE OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT HAS
THE RIGHT, FREELY AND
WITHOUT FEAR OF REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM
SUCH ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED IN THAT RIGHT . .
. "
SECTION 19(A)(1) PRECLUDES AGENCY MANAGEMENT FROM INTERFERING WITH,
RESTRAINING, OR COERCING AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS
ASSURED BY THIS ORDER AND SECTION 19(A)(3) PRECLUDES AGENCY MANAGEMENT
FROM SPONSORING, CONTROLLING OR OTHERWISE ASSISTING A LABOR
ORGANIZATION. IT IS WITHIN THIS CONTEXT THAT A DETERMINATION BE MADE AS
TO WHETHER THERE WAS A VIOLATION OF THIS ORDER.
THE NOVEMBER 1972 ENDORSEMENT MADE BY WARNER WAS NOT AN AGENCY
FUNCTION NOR WAS IT EVEN KNOWN BY THE AGENCY THAT AN ENDORSEMENT HAD
THEN BEEN MADE. I FIND UNDER THE CIRCUMSTANCES OF THIS CASE THAT WARNER
ON NOVEMBER 17, 1972, WAS NOT A MANAGEMENT OFFICIAL OR REPRESENTATIVE OF
MANAGEMENT WITHIN THE MEANING OF SECTION 1(F) OF THE ORDER AND HE HAD NO
AUTHORITY, EXPRESSED OR IMPLIED, TO ACT FOR THE EARB.
THE PARTIES AT THE HEARING STIPULATED, AND I SO FIND, THAT WILLIAM K.
HOLT WAS A NECESSARY WITNESS AT THE PROCEEDING AND IS ENTITLED TO SUCH
OFFICIAL ADMINISTRATIVE LEAVE OR TIME, NECESSARY TRANSPORTATION, AND PER
DIEM EXPENSES AS ARE WARRANTED PURSUANT TO THE REQUIREMENTS OF 29 DFR
206.7(G). /18/
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
RESPONDENT VIOLATED SECTION 19(A)(1) AND (3) OF THE ORDER.
UPON THE BASIS OF THE ABOVE FINDINGS, CONCLUSION, AND THE ENTIRE
RECORD, I RECOMMEND THAT THE COMPLAINT HEREIN AGAINST THE RESPONDENT BE
DISMISSED.
DATED: FEBRUARY 11, 1974
WASHINGTON, D.C.
/1/ TESTIMONY AT HEARING ESTABLISHED THAT PAUL C. WARNER WAS NOT AND
HAD NEVER BEEN A MEMBER OF RESPONDENT'S EMPLOYEE APPEALS REVIEW BOARD
BUT WAS AN EMPLOYEE CASE ANALYST FOR THE BOARD.
/2/ RESPONDENT EXHIBIT NO. 2. (HEREAFTER EXHIBITS WILL BE REFERRED
TO AS EXH.).
/3/ THE RECORD SHOWS THERE WERE THREE POSITIONS ESTABLISHED BUT
BECAUSE OF FINANCIAL AND CEILING RESTRAINTS PLACED ON EARB, THE BOARD
MEMBER POSITIONS WERE NEVER FILLED AND REMAINED VACANT EVEN AT THE TIME
OF THE HEARING. (SEE RESPONDENT EXH. 3 AND 4 AND TR. PP. 85 AND 86.)
/4/ THE TESTIMONY AT THE HEARING WAS TO THE EFFECT THAT WARNER'S
DUTIES REMAINED UNCHANGED THROUGHOUT HIS TENURE WITHIN THE EARB AND AS A
GS-11 HE IS THE LOWEST RATED CASE ANALYST ON THE REVIEW STAFF. HIS
DUTIES DO NOT INCLUDE THOSE OF MANAGEMENT OR SUPERVISORY PERSONNEL.
/5/ APART FROM THE CAPTION SHOWN ABOVE, THE MEMORANDUM STATED:
"MR. GEORGE ROBERTSON, A SHEETMETAL WORKER HAS BEEN NOMINATED FOR
PRESIDENT OF BREMERTON METAL TRADES COUNCIL.
"AS A PAST PRESIDENT OF THE METAL TRADES COUNCIL, I WHOLEHEARTEDLY
ENDORSE MR. ROBERTSON TO BE THE NEXT PRESIDENT OF THE BREMERTON METAL
TRADES COUNCIL. WORKING MANY YEARS IN THE SHIPYARD AS A UNION MEMBER I
BECAME ACQUAINTED WITH MR. ROBERTSON. WHILE I WAS PRESIDENT OF THE
COUNCIL, I APPOINTED MR. ROBERTSON ON MANY COMMITTEES FOR THE COUNCIL.
MR. ROBERTSON DID AN OUTSTANDING IN BRINGING HIS REPORTS TO THE
COUNCIL, ALSO MR. ROBERTSON WAS ONE OF THE WAGE DATA COLLECTORS FOR
LABORER. MR. ROBERTSON WORKING WITH HIS CRAFT COMMITTEE WAS RESPECTED
BY MANAGEMENT. MR. ROBERTSON WORKING ON COMMITTEE ASSIGNMENTS FOR LABOR
WAS RESPECTED, AS TO HAVING A VOICE IN THE ACTIVITIES IN THE SHIPYARD
THAT EFFECTED EVERY BLUE COLLAR WORKER. MR. ROBERTSON HANDLING
GRIEVANCES FOR HIS CRAFT WAS ONE TO BE HEARD AND NOT PUT OFF BY
MANAGEMENT, AS MR. ROBERTSON HANDLED HIMSELF WELL FOR HIS FELLOW
WORKERS AND WOULD NOT BE TURNED AWAY UNTIL HE HAD PRESENTED HIS
GRIEVANCE GETTING SATISFACTORY SOLUTION, OR TAKE THE GRIEVANCE TO THE
NEXT HIGHER AUTHORITY. THE MANY YEARS OF EXPERIENCE IN UNION AFFAIRS
AND KNOWING THE RESPONSIBILITIES OF THE COUNCIL, I HIGHLY ENDORSE MR.
GEORGE ROBERTSON FOR THE NEXT PRESIDENT OF THE BREMERTON METAL TRADES
COUNCIL." THE MEMORANDUM WAS SIGNED BY PAUL C. WARNER, EMPLOYEE APPEALS
REVIEW BOARD, WASHINGTON, D.C.
/6/ UNDER SECTION 2(F) OF EXECUTIVE ORDER 11491 "AGENCY MANAGEMENT"
MEANS THE AGENCY HEAD AND ALL MANAGEMENT OFFICIALS, SUPERVISORS, AND
OTHER REPRESENTATIVES OF MANAGEMENT HAVING AUTHORITY TO ACT FOR THE
AGENCY OR ANY MATTERS RELATING TO IMPLEMENTATION OF THE AGENCY
LABOR-MANAGEMENT RELATIONS PROGRAM ESTABLISHED UNDER THIS ORDER.
/7/ 29 CFR 203.7(A) PROVIDES "IF THE REGIONAL ADMINISTRATOR
DETERMINES THAT THE COMPLAINT HAS NOT BEEN TIMELY FILED, THAT A
REASONABLE BASIS FOR THE COMPLAINT HAS NOT BEEN ESTABLISHED, THAT A
SATISFACTORY WRITTEN SETTLEMENT AGREEMENT OR WRITTEN OFFER OF SETTLEMENT
BY THE RESPONDENT HAS BEEN MADE, OR FOR OTHER APPROPRIATE REASONS, HE
MAY REQUEST THE COMPLAINANT TO WITHDRAW THE COMPLAINT AND IN THE ABSENCE
OF SUCH WITHDRAWAL WITHIN A REASONABLE TIME HE MAY DISMISS THE
COMPLAINT.
/8/ THE STATUS OF PAUL C. WARNER HAD BEEN CONSIDERED TO BE THAT OF A
MEMBER OF THE EARB, AND THE ASSISTANT REGIONAL ADMINISTRATOR DID NOT
HAVE BENEFIT OF INFORMATION THAT HE WAS AN EMPLOYEE RATHER THAN A BOARD
MEMBER PRIOR TO THE HEARING.
/9/ 29 CFR 203.14.
/10/ THE LETTER STATES:
"IT IS WITH MIXED EMOTIONS AND WITH DEEP REGRET THAT I TENDER MY
RESIGNATION, TO BE EFFECTIVE IMMEDIATELY, AS PRESIDENT OF THE
COPPERSMITH'S LOCAL NO. 463. IT IS NOT FAIR TO THE LOCAL WITH MY BEING
IN WASHINGTON, D.C., AND NOT DOING THE DUTIES AS A PRESIDENT SHOULD. I
THANK ALL OF YOU FOR YOUR SUPPORT WHILE HAVE BEEN PRESIDENT." THE LETTER
WAS SIGNED SINCERELY, PAUL C. WARNER, 2301 JEFFERSON DAVIS HIGHWAY,
ARLINGTON, VIRGINIA 22202.
/11/ THE MEMORANDUM, PART OF RESPONDENT'S EXH. NO. 1 STATES:
"1. IN ACCORDANCE WITH OUR CONVERSATION ON TUESDAY, FEBRUARY 27,
1973, ATTACHED IS A COPY OF MY LETTER OF RESIGNATION AS PRESIDENT,
COPPERSMITH'S LOCAL NO. 463, WHICH WAS SUBMITTED TO THE UNION ON MARCH
2, 1973. ALTHOUGH I WAS NOT AWARE OF THE DEPARTMENTAL POLICY IN THIS
REGARD, I REGRET ANY EMBARRASSMENT WHICH MAY HAVE OCCURRED FROM MY
RETENTION OF UNION OFFICE.
"2. FURTHERMORE, IT IS MY INTENTION NOT TO DISCUSS INTRA-UNION
MATTERS WITH MY FORMER ASSOCIATES AT BREMERTON, EVEN IF REQUESTED TO DO
SO BY THEM, OR TO PARTICIPATE IN PUGET SOUND NAVAL SHIPYARD UNION
AFFAIRS, IN ANY MANNER, WHILE I AM A MEMBER OF THIS BOARD. SHOULD ANY
OF MY ASSOCIATES COMMUNICATE WITH ME ABOUT THESE MATTERS, THEY WILL BE
ADVISED OF THIS INTENTION, ACCORDINGLY." (THE MEMORANDUM WAS SIGNED BY
PAUL C. WARNER, BOARD MEMBER.)
/12/ HIS POSITION DESCRIPTION, RESPONDENT'S EXH. NO. 5, DOES NOT
REFER TO DUTIES AND RESPONSIBILITIES THAT WOULD RELATE TO MANAGEMENT,
SUPERVISORY OR AGENCY OFFICIAL FUNCTIONS.
/13/ FOOTNOTE 5, SUPRA.
/14/ COMPLAINANT EXH. NO. 5.
/15/ SECTION 2(F) STATES:
"'AGENCY MANAGEMENT' MEANS THE AGENCY HEAD AND ALL MANAGEMENT
OFFICIALS, SUPERVISORS, AND OTHER REPRESENTATIVES OF MANAGEMENT HAVING
AUTHORITY TO ACT FOR THE AGENCY OR ANY MATTERS RELATING TO THE
IMPLEMENTATION OF THE AGENCY LABOR-MANAGEMENT PROGRAM ESTABLISHED UNDER
THIS ORDER."
/16/ IT WAS STIPULATED AT THE HEARING THAT IN THE DEPARTMENT OF LABOR
LETTER OF MAY 31, 1973, ADDRESSED TO PAUL BURNSKY, PRESIDENT OF THE
METAL TRADES DEPARTMENT. THERE WAS NO REFERENCE OR FINDINGS WHATSOEVER
WITH REGARD TO PAUL WARNER'S MANAGERIAL STATUS IN THE SECTION 18
PROCEEDINGS NOT MATERIAL TO THIS CASE EXCEPT INSOFAR AS THE ELECTION WAS
SET ASIDE. (TR. PP 26 AND 28.)
/17/ WHILE WARNER REFERRED TO AND SIGNED THE MARCH 2, 1973,
MEMORANDUM AS A BOARD MEMBER THE MEMORANDUM WAS AN INTERNAL ONE TO
CHAIRMAN ROBEY WITHIN THE OFFICE WHERE HIS STATUS AS A CASE ANALYST
EMPLOYEE WAS WELL KNOWN.
/18/ FEDERAL REGISTER, VOL. 38, NO. 215; THURSDAY, NOVEMBER 8, 1973.
4 A/SLMR 392; P. 338; CASE NO. 20-4282(RO); MAY 31, 1974.
ARMY-AIR FORCE EXCHANGE SERVICE.
CAPITOL EXCHANGE REGION,
TACONY WAREHOUSE
A/SLMR NO. 392
THE CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY
HIGHWAY TRUCK DRIVERS AND WAREHOUSEMEN, LOCAL 107, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA (PETITIONER) SEEKING AN ELECTION IN A UNIT CONSISTING
OF ALL OF THE ACTIVITY'S NONSUPERVISORY EMPLOYEES, INCLUDING THOSE
REPRESENTED ON AN EXCLUSIVE BASIS BY THE INTERVENOR, LOCAL R3-105,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES. THE PARTIES STIPULATED AS
TO THE APPROPRIATENESS OF THE UNIT AND TO THE INCLUSION OF TRUCK DRIVERS
WHO ARE EMPLOYED BY THE ACTIVITY BUT WHO ARE STATIONED AWAY FROM ITS
FACILITIES. HOWEVER, THE PETITIONER AND INTERVENOR WOULD INCLUDE
EMPLOYEES EMPLOYED BY TENANT ACTIVITIES, WHEREAS THE ACTIVITY WOULD
EXCLUDE SUCH EMPLOYEES.
THE ASSISTANT SECRETARY ACCEPTED THE STIPULATION OF THE PARTIES WITH
RESPECT TO THE APPROPRIATENESS OF THE CLAIMED UNIT AND THE UNIT
PLACEMENT OF THE TRUCK DRIVERS. THE ASSISTANT SECRETARY FOUND, HOWEVER,
THAT THERE WAS INSUFFICIENT EVIDENCE ON WHICH TO DETERMINE THE UNIT
PLACEMENT OF THE EMPLOYEES EMPLOYED BY THE TENANT ACTIVITIES. IN THIS
CONNECTION, HE NOTED THAT THE RECORD WAS SILENT ON WHETHER THE FUNCTIONS
OF THE ACTIVITY AND THE TENANT ACTIVITIES WERE INTEGRATED AND
INTERDEPENDENT AND WHETHER THE EMPLOYEES OF THE ACTIVITY AND THE TENANT
ACTIVITIES SHARED WORK-RELATED CONTACTS.
ARMY-AIR FORCE EXCHANGE SERVICE,
CAPITOL EXCHANGE REGION,
TACONY WAREHOUSE
AND
HIGHWAY TRUCK DRIVERS AND WAREHOUSEMEN,
LOCAL 107, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
AND
LOCAL R3-105, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER HERBERT ROSE. 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 ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, HIGHWAY TRUCK DRIVERS AND WAREHOUSEMEN, LOCAL
107, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN, AND HELPERS OF AMERICA, HEREIN CALLED IBT, SEEKS AN
ELECTION IN A UNIT CONSISTING OF ALL REGULAR FULL-TIME AND REGULAR
PART-TIME HOURLY PAID EMPLOYEES, INCLUDING OFF-DUTY MILITARY PERSONNEL
IN EITHER OF THE FOREGOING CATEGORIES, EMPLOYED BY ARMY-AIR FORCE
EXCHANGE SERVICE, CAPITOL EXCHANGE REGION, TACONY WAREHOUSE, EXCLUDING
TEMPORARY FULL-TIME AND TEMPORARY PART-TIME EMPLOYEES, ON-CALL AND
CASUAL EMPLOYEES, MANAGERS, PERSONNEL WORKERS EMPLOYED IN OTHER THAN A
PURELY CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES, GUARDS AND
SUPERVISORS. THE PARTIES ARE IN AGREEMENT WITH RESPECT TO THE
APPROPRIATENESS OF THE UNIT SOUGHT AND THE UNIT PLACEMENT OF ALL
EMPLOYEES EXCEPT THOSE EMPLOYEES EMPLOYED BY FOUR "TENANT ACTIVITIES",
NAMELY, THE PHILADELPHIA LIAISON OFFICE, THE QUALITY ASSURANCE OFFICE,
THE TRANSPORTATION OFFICE AND THE KEYPUNCH UNIT, WHICH THE ACTIVITY
SEEKS TO EXCLUDE, AND THE IBT AND THE INTERVENOR, LOCAL R3-105, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREIN CALLED NAGE, SEEK TO
INCLUDE.
THE ARMY-AIR FORCE EXCHANGE SERVICE IS A NON-APPROPRIATED FUND
INSTRUMENTALITY OF THE UNITED STATES DEPARTMENT OF DEFENSE AND IS
CHARGED WITH THE MISSION OF OPERATING RETAIL AND SERVICE FACILITIES FOR
THE CONVENIENCE OF MILITARY PERSONNEL AND THEIR DEPENDENTS. ITS
OPERATIONS ARE DIVIDED INTO FOUR REGIONS, INCLUDING THE CAPITOL EXCHANGE
REGION INVOLVED HEREIN, LOCATED IN THE CONTINENTAL UNITED STATES AND
SEVERAL MAJOR OVERSEAS DIVISIONS WHICH INCLUDE THE EUROPEAN EXCHANGE
SYSTEM. THE CAPITOL EXCHANGE REGION, WHICH IS HEADQUARTERED AT
ALEXANDRIA, VIRGINIA, IS RESPONSIBLE FOR A NUMBER OF LOCAL EXCHANGE
OPERATIONS AND OPERATES TWO WAREHOUSES INCLUDING THE TACONY WAREHOUSE,
THE SUBJECT ACTIVITY. THE ACTIVITY IS UNDER THE SUPERVISION OF A
WAREHOUSE MANAGER WHO REPORTS TO THE CHIEF OF THE DISTRIBUTION OFFICE AT
THE HEADQUARTERS OF THE CAPITOL EXCHANGE REGION. IT EMPLOYS
APPROXIMATELY 265 NONSUPERVISORY EMPLOYEES, INCLUDING TRUCK DRIVERS
LOCATED AT WESTOVER, MASSACHUSETTS, AND FORT MEADE, MARYLAND. /1/
THE HISTORY OF COLLECTIVE BARGAINING ON AN EXCLUSIVE BASIS INVOLVING
THE CLAIMED EMPLOYEES REVEALS THAT THE NAGE WAS CERTIFIED AS EXCLUSIVE
REPRESENTATIVE OF ALL OF THE ACTIVITY'S NONSUPERVISORY EMPLOYEES IN
AUGUST 1971, AND THAT, THEREAFTER, IN JANUARY 1972, IT ENTERED INTO A
NEGOTIATED AGREEMENT WITH THE ACTIVITY WHICH HAD A TERMINATION DATE IN
JANUARY 1974. WHILE THE EVIDENCE INDICATES THAT SOME EMPLOYEES OF ONE
OF THE TENANTS NOTED ABOVE HAVE HAD DUES WITHHELD UNDER THE NEGOTIATED
AGREEMENT AND THAT CERTAIN EMPLOYEES EMPLOYED BY THE TENANTS PREVIOUSLY
WORKED FOR THE ACTIVITY, IT APPEARS THAT THE NEGOTIATED AGREEMENT WAS IN
NO OTHER RESPECT APPLIED TO ANY OF THE TENANTS' EMPLOYEES SOUGHT TO BE
INCLUDED IN THE UNIT PETITIONED FOR BY THE IBT.
THE PHILADELPHIA LIAISON OFFICE ESTABLISHED AT THE ACTIVITY IN MAY
1973, IS ENGAGED IN PURCHASING ITEMS ON THE DOMESTIC MARKET WHICH ARE
NOT READILY AVAILABLE IN EUROPE AND SHIPPING THEM TO THE EUROPEAN
EXCHANGE SYSTEM. IT IS UNDER THE SUPERVISION OF A PURCHASING AGENT WHO
REPORTS DIRECTLY TO THE EUROPEAN EXCHANGE SYSTEM'S HEADQUARTERS AT
MUNICH, GERMANY, AND EMPLOYS THREE NONSUPERVISORY EMPLOYEES. THE
QUALITY ASSURANCE OFFICE WAS ESTABLISHED AT THE ACTIVITY IN MAY OF 1971,
AND IS RESPONSIBLE FOR INSPECTING MERCHANDISE WHICH FLOWS THROUGH THE
WAREHOUSE TO ENSURE THAT IT MEETS WITH THE SPECIFICATIONS AND STANDARDS
OF THE ARMY-AIR FORCE EXCHANGE SERVICE AT ITS HEADQUARTERS IN DALLAS,
TEXAS, AND EMPLOYS TWO NONSUPERVISORY INSPECTORS. THE TRANSPORTATION
OFFICE EMPLOYS ONE NONSUPERVISORY EMPLOYEE AND IS UNDER THE SUPERVISION
OF THE VEHICLE MANAGER WHO REPORTS DIRECTLY TO THE CHIEF OF THE
DISTRIBUTION BRANCH AT THE ACTIVITY'S ALEXANDRIA, VIRGINIA,
HEADQUARTERS. /2/ THE KEY PUNCH UNIT EMPLOYS TWO NONSUPERVISORY
EMPLOYEES AND IS ENGAGED IN COMPILING DATA GENERATED BY THE ACTIVITY'S
WAREHOUSING OPERATIONS AND TRANSMITTING SUCH DATA THROUGH THE USE OF
TELETYPE EQUIPMENT TO THE KEY PUNCH SECTION AT THE HEADQUARTERS OF
CAPITOL EXCHANGE REGION. IT IS SUPERVISED BY A DATA CONTROL CLERK WHO
REPORTS DIRECTLY TO THE CHIEF OF THE KEY PUNCH SECTION AT THE REGIONAL
HEADQUARTERS.
THE RECORD REFLECTS THAT WHILE THE ACTIVITY PROVIDES THE TENANT
ACTIVITIES WITH ADMINISTRATIVE AND HOUSEKEEPING SERVICES SUCH AS
HOUSING, MAINTENANCE OF PERSONNEL RECORDS, AND PREPARATION OF PAYROLLS,
IT DOES NOT HAVE ANY DIRECT CONTROL OVER THE PERSONNEL AND LABOR
RELATIONS POLICIES OF SUCH ACTIVITIES. NOR DOES IT APPEAR THAT THE
ACTIVITY HAS AUTHORITY EITHER TO DIRECT THE WORK OF THE TENANTS OR TO
DISCIPLINE THEIR EMPLOYEES. EACH OF THE TENANTS IS RESPONSIBLE FOR
HANDLING THE GRIEVANCES OF ITS OWN EMPLOYEES. THE RECORD REVEALS THAT
THE AREA OF CONSIDERATION FOR VACANCIES OR PROMOTIONS AND
REDUCTIONS-IN-FORCE IS LIMITED TO THE ACTIVITY AND TO EACH OF THE
RESPECTIVE TENANT ACTIVITIES. FURTHER, THERE IS NO EVIDENCE OF
INTERCHANGE OR TRANSFER OF EMPLOYEES BETWEEN THE ACTIVITY AND THE
TENANTS. WHILE THE RECORD INDICATES THAT EACH OF THE TENANTS ENGAGED IN
A SEPARATE AND DISTINCT MISSION, THERE IS INSUFFICIENT EVIDENCE TO
DETERMINE WHETHER THE FUNCTIONS OF THE VARIOUS TENANTS AND THE ACTIVITY
ARE INTEGRATED AND INTERDEPENDENT. IN THIS REGARD, THE RECORD IS SILENT
AS TO WHETHER THERE ARE WORK-RELATED CONTACTS BETWEEN THE UNIT AND
TENANT EMPLOYEES. UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THERE
EXISTS INSUFFICIENT EVIDENCE UPON WHICH TO MAKE A FINDING AS TO WHETHER
THE TENANT ACTIVITIES' EMPLOYEES IN QUESTION SHOULD BE INCLUDED WITHIN
THE UNIT FOUND APPROPRIATE HEREIN. ACCORDINGLY, I MAKE NO FINDINGS IN
THIS REGARD. /3/
BASED ON THE FOREGOING, INCLUDING THE STIPULATIONS OF THE PARTIES AND
THE PREVIOUS BARGAINING HISTORY, I FIND THAT THE FOLLOWING EMPLOYEES
CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
WITHIN THE MEANING OF SECTION 10(B) OF EXECUTIVE ORDER 11491, AS
AMENDED:
ALL REGULAR FULL-TIME AND PART-TIME EMPLOYEES, INCLUDING TRUCK
DRIVERS, AND OFF-DUTY
MILITARY PERSONNEL IN EITHER OF THE FOREGOING CATEGORIES, EMPLOYED BY
ARMY-AIR FORCE EXCHANGE
SERVICE, CAPITOL EXCHANGE REGION, TACONY WAREHOUSE, EXCLUDING
TEMPORARY FULL-TIME AND
PART-TIME EMPLOYEES, CASUAL AND ON-CALL EMPLOYEES, 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.
AN ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES
IN THE UNIT FOUND APPROPRIATE AS SOON 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 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 THEY WISH TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY HIGHWAY TRUCK DRIVERS AND WAREHOUSEMEN,
LOCAL 107, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; BY LOCAL R3-105,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES; OR BY NEITHER.
DATED, WASHINGTON, D.C.
MAY 31, 1974
/1/ THE PARTIES STIPULATED THAT THE TRUCK DRIVERS SHARE A COMMUNITY
OF INTEREST WITH THE UNIT EMPLOYEES CURRENTLY REPRESENTED BY THE NAGE
AND, CONSEQUENTLY, SHOULD BE INCLUDED IN SUCH UNIT. THE EVIDENCE
REVEALS THAT THE TRUCK DRIVERS AND OTHER UNIT EMPLOYEES SHARE COMMON
SUPERVISION, ARE SUBJECT TO THE SAME PERSONNEL AND LABOR RELATION
POLICIES, ARE PART OF AN INTEGRATED WORK PROCESS, AND THEIR PERSONNEL
RECORDS ARE MAINTAINED BY THE ACTIVITY. UNDER THESE CIRCUMSTANCES, AND
IN THE ABSENCE OF ANY EVIDENCE THAT THE STIPULATION OF THE PARTIES WAS
IMPROPER, I FIND THAT THE TRUCK DRIVERS SHOULD BE INCLUDED IN THE UNIT
FOUND APPROPRIATE HEREIN.
/2/ THE RECORD DOES NOT REFLECT THE FUNCTION OF THE TRANSPORTATION
OFFICE.
/3/ IN THE ABSENCE OF A FINDING AS TO THE ELIGIBILITY OF THE TENANTS'
EMPLOYEES, IF THEY CHOOSE TO VOTE IN THE ELECTION DIRECTED HEREIN, THEY
WOULD, OF COURSE, VOTE SUBJECT TO CHALLENGE.
4 A/SLMR 391; P. 335; CASE NOS. 31-7549(RO), 31-7552(RO); MAY 31,
1974.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), BOSTON, MASSACHUSETTS
A/SLMR NO. 391
THIS CASE AROSE AS A RESULT OF RO PETITIONS FILED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE) AND BY LOCAL 1906, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE). THE NAGE SOUGHT AN
ELECTION IN A UNIT OF ALL UNREPRESENTED NONPROFESSIONAL EMPLOYEES OF THE
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BOSTON, AND THE
AFGE SOUGHT AN ELECTION IN A UNIT CONSISTING OF A PORTION OF THE
EMPLOYEES CLAIMED BY THE NAGE. THERE ARE 15 EXCLUSIVELY RECOGNIZED
UNITS IN THE REGION AND, AT THE HEARING, THE ACTIVITY AND THE NAGE
STIPULATED THAT THE UNIT CLAIMED BY THE NAGE COVERS ALL NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE ACTIVITY WHO CURRENTLY ARE
UNREPRESENTED.
ALTHOUGH THE ACTIVITY AGREED THAT THE UNIT CLAIMED BY NAGE IS A
LEGITIMATE RESIDUAL UNIT, IT CONTENDED THAT THE ONLY APPROPRIATE UNIT IS
A REGIONWIDE UNIT OF ALL ELIGIBLE EMPLOYEES WHICH WOULD INCLUDE ALL
EMPLOYEES IN THE CURRENTLY EXISTING 15 EXCLUSIVELY RECOGNIZED UNITS. IN
THE ALTERNATIVE, THE ACTIVITY ASSERTED THAT AN APPROPRIATE UNIT SHOULD
INCLUDE THE EMPLOYEES IN THE EXISTING UNIT OF NONPROFESSIONAL EMPLOYEES
AT THE ACTIVITY'S HEADQUARTERS OFFICE CURRENTLY REPRESENTED BY NAGE.
MOREOVER, THE ACTIVITY NOTED THAT THE UNIT SOUGHT BY THE AFGE WOULD
RESULT IN A GROUP OF EMPLOYEES REMAINING UNREPRESENTED.
THE AFGE WAS TIMELY NOTIFIED OF THIS PROCEEDING; HOWEVER, IT DID NOT
ENTER AN APPEARANCE OR PRESENT ANY EVIDENCE IN SUPPORT OF ITS PETITION
AT THE HEARING. ACCORDINGLY, CONSISTENT WITH THE PRECEDENT SET FORTH IN
VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS, A/SLMR NO.
21, WHEREIN THE ASSISTANT SECRETARY HELD THAT WHEN A PETITIONER FAILS TO
COOPERATE IN THE PROCESSING OF ITS PETITION, SUCH CONDUCT WARRANTS
DISMISSAL OF THE PETITION, THE ASSISTANT SECRETARY ORDERED THE DISMISSAL
OF THE AFGE'S PETITION.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT BY THE NAGE
CONSTITUTED AN APPROPRIATE RESIDUAL UNIT FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. IN THIS REGARD, HE NOTED, AMONG OTHER THINGS, THAT THE
EMPLOYEES IN THE CLAIMED UNIT ARE UNDER THE DIRECT SUPERVISION OF THE
ACTIVITY'S COMMANDER WHO ADMINISTERS PERSONNEL POLICIES FOR ALL ACTIVITY
EMPLOYEES AND THAT THE PETITIONED FOR UNIT INCLUDES ALL OF THE REMAINING
UNREPRESENTED EMPLOYEES OF THE ACTIVITY.
ACCORDINGLY, THE ASSISTANT SECRETARY DIRECTED THAT AN ELECTION BE
CONDUCTED IN THE RESIDUAL UNIT FOUND APPROPRIATE.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), BOSTON, MASSACHUSETTS /1/
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES
REGION (DCASR), BOSTON, MASSACHUSETTS
AND
LOCAL 1906, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICE PETER
F. DOW. 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, INCLUDING THE BRIEF FILED BY
THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. IN CASE NO. 31-7549(RO), THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, HEREIN CALLED NAGE, SEEKS AN ELECTION IN A RESIDUAL UNIT
WHICH INCLUDES ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES OF THE DEFENSE
CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BOSTON, HEADQUARTERS,
EXCEPT THOSE WHOSE DUTY STATION IS AT THE REGIONAL HEADQUARTERS OFFICE
AND THOSE IN THE QUALITY ASSURANCE DIRECTORATE REGARDLESS OF THE
LOCATION OF THEIR DUTY STATION. /2/ AT THE HEARING, THE ACTIVITY AND
THE NAGE STIPULATED THAT THE CLAIMED UNIT COVERS ALL ELIGIBLE
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE DCASR, BOSTON, WHO
CURRENTLY ARE UNREPRESENTED.
IN CASE NO. 31-7552(RO), LOCAL 1906, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN
A UNIT OF ALL EMPLOYEES OF THE OFFICE OF INDUSTRIAL SECURITY AT WALTHAM,
MASSACHUSETTS; HARTFORD AND BRIDGEPORT, CONNECTICUT; AND SYRACUSE,
ROCHESTER, AND BUFFALO, NEW YORK. /3/
ALTHOUGH THE ACTIVITY AGREES THAT THE UNIT PETITIONED FOR BY THE NAGE
IN THIS MATTER IS A LEGITIMATE RESIDUAL UNIT, IT ASSERTS THAT NEITHER OF
THE CLAIMED UNITS IS APPROPRIATE BECAUSE THEY WOULD NOT PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. /4/ MOREOVER,
THE ACTIVITY NOTES THAT THE UNIT PETITIONED FOR BY THE AFGE WOULD RESULT
IN A GROUP OF EMPLOYEES REMAINING UNREPRESENTED.
ALTHOUGH TIMELY NOTIFIED OF THE INSTANT PROCEEDING, THE AFGE DID NOT
ENTER AN APPEARANCE OR PRESENT ANY EVIDENCE IN SUPPORT OF ITS PETITION
AT THE HEARING. IT HAS BEEN HELD PREVIOUSLY THAT COOPERATION IN THE
INVESTIGATION OF A REPRESENTATION PETITION BY THE PARTIES INVOLVED, AND
PARTICULARLY THE PETITIONER, IS OF THE UTMOST IMPORTANCE IN THE
ADMINISTRATION OF THE EXECUTIVE ORDER AND THAT DISMISSAL OF A PETITION
IS WARRANTED WHERE A PETITIONER FAILS TO COOPERATE IN THE PROCESSING OF
ITS PETITION. /5/ IN MY VIEW, BY FAILING TO APPEAR AT THE
REPRESENTATION HEARING IN THIS MATTER, THE AFGE, IN EFFECT, DEMONSTRATED
A LACK OF COOPERATION IN THE PROCESSING OF ITS OWN PETITION.
ACCORDINGLY, CONSISTENT WITH THE ABOVE-NOTED PRECEDENT, I FIND THAT
DISMISSAL OF THE AFGE'S PETITION FOR LACK OF COOPERATION IS WARRANTED.
DCASR, BOSTON, IS ONE OF A NUMBER OF SUCH REGIONS OF THE DEFENSE
SUPPLY AGENCY WHICH PROVIDES CONTRACT ADMINISTRATION SERVICES IN SUPPORT
OF THE DEPARTMENT OF DEFENSE AND OTHER FEDERAL AGENCIES. DCASR, BOSTON,
ENCOMPASSES A GEOGRAPHIC AREA WHICH INCLUDES THE SIX NEW ENGLAND STATES
AND THE STATE OF NEW YORK (EXCEPT NEW YORK CITY AND ADJOINING COUNTIES),
AND IS UNDER THE COMMAND OF A REGIONAL COMMANDER, A MILITARY OFFICER,
WHOSE OFFICE IS LOCATED IN BOSTON AT THE ACTIVITY'S HEADQUARTERS.
DIRECTLY UNDER THE COMMANDER AND LOCATED AT HEADQUARTERS ARE A NUMBER OF
OFFICES AND DIRECTORATES WHICH ARE RESPONSIBLE FOR PLANNING AND
MONITORING ALL FACETS OF THE ACTIVITY'S OPERATIONS. DCASR, BOSTON,
EXERCISES LINE RESPONSIBILITY OVER THE HARTFORD AND THE ROCHESTER
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICTS (DCASD'S); FIVE
PLANT SITE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICES (DCASO'S);
FIELD OFFICES OF THE OFFICE OF CONTRACT COMPLIANCE AND THE OFFICE OF
INDUSTRIAL SECURITY; AND PERSONNEL CLERKS /6/ STATIONED AT THE
ROCHESTER AND HARTFORD DCASD'S. DCASD, ROCHESTER, EXERCISES LINE
RESPONSIBILITY OVER ONE PLANT SITE AND THREE AREA DCASO'S. DCASD,
HARTFORD, EXERCISES LINE RESPONSIBILITY OVER ONE AREA AND THREE PLANT
SITE DCASO'S. THE RECORD REVEALS THAT PERSONNEL POLICIES OF DCASR,
BOSTON, ARE IMPLEMENTED THROUGH A CIVILIAN PERSONNEL OFFICE LOCATED ALSO
AT HEADQUARTERS WHICH SERVES ALL OF THE ACTIVITY'S EMPLOYEES.
THE EVIDENCE ESTABLISHES THAT CURRENTLY THERE ARE 15 EXCLUSIVELY
RECOGNIZED UNITS IN THE REGION. THE AFGE REPRESENTS PROFESSIONAL
EMPLOYEES LOCATED AT THE ACTIVITY'S HEADQUARTERS, A MIXED UNIT OF
PROFESSIONALS AND NONPROFESSIONALS AT THE DCASO SANDERS PLANT SITE,
NASHUA, NEW HAMPSHIRE, AND NONPROFESSIONAL EMPLOYEES AT THE DCASO
HAMILTON STANDARD PLANT SITE, WINDSOR LOCKS, CONNECTICUT, AND OF THE
OPERATIONS DIVISION, DIRECTORATE OF QUALITY ASSURANCE, WHOSE DUTY
STATIONS ARE OTHER THAN AT REGIONAL HEADQUARTERS. THE NAGE, THROUGH
VARIOUS LOCALS, EXCLUSIVELY REPRESENTS NONPROFESSIONAL EMPLOYEES LOCATED
AT THE ACTIVITY'S HEADQUARTERS, AND OF THE DCASD, HARTFORD, FOUR DCASO
PLANT SITES AND FOUR AREA DCASO'S, AND MIXED UNITS OF PROFESSIONALS AND
NONPROFESSIONALS OF DCASD, ROCHESTER, AND AT TWO DCASO PLANT SITES.
THE RECORD REVEALS THAT THE UNIT PETITIONED FOR BY THE NAGE CONSISTS
OF APPROXIMATELY 47 EMPLOYEES OF CERTAIN OFFICES AND DIRECTORATES OF THE
DCASR, BOSTON, HEADQUARTERS, WHO HAVE DUTY STATIONS THROUGHOUT THE
REGION. THUS, THE UNIT INCLUDES EMPLOYEES OF THE OFFICE OF CONTRACT
COMPLIANCE WITH DUTY STATIONS AT ROCHESTER, NEW YORK, AND HARTFORD,
CONNECTICUT; EMPLOYEES AT THE OFFICE OF INDUSTRIAL SECURITY WITH DUTY
STATIONS AT ROCHESTER, BUFFALO, AND SYRACUSE, NEW YORK; HARTFORD,
BRIDGEPORT, AND GROTON, CONNECTICUT; AND WALTHAM, MASSACHUSETTS;
EMPLOYEES OF THE DIRECTORATES OF CONTRACT ADMINISTRATION AND OF
PRODUCTION STATIONED AT THE DCASO GTE-SYLVANIA, PLANT SITE, NEEDHAM,
MASSACHUSETTS; AND TWO PERSONNEL CLERKS OF THE CIVILIAN PERSONNEL
OFFICE STATIONED AT THE ROCHESTER AND HARTFORD DCASD HEADQUARTERS,
RESPECTIVELY. AS NOTED ABOVE, AT THE HEARING THE ACTIVITY AND THE NAGE
STIPULATED THAT THE UNIT PETITIONED FOR BY THE NAGE COVERS ALL ELIGIBLE
NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF DCASR, BOSTON, WHO
CURRENTLY ARE UNREPRESENTED.
BASED ON THE FOREGOING, I FIND THAT THE UNIT PETITIONED FOR BY THE
NAGE CONSTITUTES AN APPROPRIATE RESIDUAL UNIT FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. THUS, THE RECORD DEMONSTRATES THAT THE EMPLOYEES
OF THE UNIT REQUESTED INCLUDE ALL OF THE REMAINING UNREPRESENTED
EMPLOYEES OF THE ACTIVITY. FURTHER, ALL OF THE EMPLOYEES IN THE CLAIMED
UNIT ARE UNDER THE DIRECT SUPERVISION OF THE ACTIVITY'S COMMANDER WHO
ADMINISTERS PERSONNEL POLICIES FOR ALL ACTIVITY EMPLOYEES, INCLUDING
EMPLOYEES IN THE PETITIONED FOR UNIT, THROUGH A COMMON CIVILIAN
PERSONNEL OFFICE. UNDER THESE CIRCUMSTANCES, AND NOTING THE ABOVE
CONCLUSION THAT THE AFGE'S PETITION HEREIN WARRANTS DISMISSAL AND IN THE
ABSENCE OF ANY OTHER LABOR ORGANIZATION SEEKING TO REPRESENT THESE
REMAINING NONPROFESSIONAL EMPLOYEES ON ANY OTHER BASIS, I FIND THAT THE
RESIDUAL UNIT SOUGHT BY THE NAGE PETITION IS APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION UNDER THE ORDER. /7/
ACCORDINGLY, 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 NONPROFESSIONAL EMPLOYEES OF THE DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION
HEADQUARTERS, BOSTON, WITH DUTY STATIONS AT HARTFORD, BRIDGEPORT, AND
GROTON,
CONNECTICUT; ROCHESTER, BUFFALO, AND SYRACUSE, NEW YORK; AND
WALTHAM AND NEEDHAM,
MASSACHUSETTS, EXCLUDING EMPLOYEES OF THE OPERATIONS DIVISION,
DIRECTORATES OF QUALITY
ASSURANCE, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AND GUARDS AS DEFINED
IN THE ORDER.
IT IS HEREBY ORDERED THAT THE PETITION FILED IN CASE NO. 31-7552(RO)
BE, AND IT HEREBY IS, DISMISSED.
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 NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES.
DATED, WASHINGTON, D.C.
MAY 31, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAGE'S PETITION WAS AMENDED AT THE HEARING.
/3/ THE RECORD REVEALS THAT THE INDUSTRIAL SECURITY OFFICES AT THE
NAMED LOCATIONS OTHER THAN BUFFALO ARE FIELD OFFICES OF THE OFFICE OF
INDUSTRIAL SECURITY.
/4/ THE ACTIVITY CONTENDS THAT THE ONLY APPROPRIATE UNIT IS A
REGIONWIDE UNIT OF ALL ELIGIBLE EMPLOYEES WHICH WOULD INCLUDE ALL OF THE
EMPLOYEES IN THE CURRENTLY EXISTING 15 EXCLUSIVELY RECOGNIZED UNITS. IN
THE ALTERNATIVE, THE ACTIVITY ASSERTS THAT AN APPROPRIATE UNIT SHOULD
INCLUDE THE EMPLOYEES IN THE EXISTING UNIT OF NONPROFESSIONAL EMPLOYEES
AT THE REGIONAL HEADQUARTERS CURRENTLY REPRESENTED BY THE NAGE.
/5/ SEE VETERANS ADMINISTRATION HOSPITAL, BROCKTON, MASSACHUSETTS,
A/SLMR NO. 21.
/6/ THERE WAS NO CONTENTION THAT THE PERSONNEL CLERKS ARE ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY.
/7/ CF. DEPARTMENT OF THE NAVY, NAVAL AIR STATION, ALAMEDA,
CALIFORNIA A/SLMR NO. 6. UNDER THE CIRCUMSTANCES OF THIS CASE AND
NOTING THAT NAGE DID NOT INDICATE ON THE RECORD A DESIRE TO INCLUDE IN
ITS CLAIMED UNIT THE EMPLOYEES AT THE REGIONAL HEADQUARTERS OFFICE WHICH
IT REPRESENTS CURRENTLY, I REJECT THE ACTIVITY'S CONTENTIONS SET FORTH
AT FOOTNOTE 4 ABOVE. SEE, IN THIS REGARD, DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BOSTON,
MASSACHUSETTS, A/SLMR NO. 271, IN WHICH THE ACTIVITY RAISED SIMILAR
CONTENTIONS.
4 A/SLMR 390; P. 324; CASE NO. 41-3342(CA); MAY 15, 1974.
DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR
PASCAGOULA, MISSISSIPPI
A/SLMR NO. 390
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO. 561
(COMPLAINANT), AGAINST THE DEPARTMENT OF THE NAVY, SUPERVISOR OF
SHIPBUILDING, CONVERSION AND REPAIR, PASCAGOULA, MISSISSIPPI
(RESPONDENT). THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(6) OF THE ORDER BY ITS UNILATERAL IMPLEMENTATION OF NAVAL
SHIP SYSTEMS COMMAND (NAVSHIPS) INSTRUCTION 12340.7, WHICH ESTABLISHED
CERTAIN MOBILITY REQUIREMENTS IN ALL SUBORDINATE ACTIVITIES OF NAVSHIPS
FOR, AMONG OTHER THINGS, VACANT POSITIONS AND NEW POSITIONS.
THE COMPLAINANT CONTENDED THAT THE.NAVSHIPS INSTRUCTION WAS IN
VIOLATION OF THE EXISTING NEGOTIATED AGREEMENT BETWEEN THE PARTIES AND
THAT THE RESPONDENT FAILED TO CONFER, CONSULT, OR NEGOTIATE WITH
COMPLAINANT PRIOR TO THE IMPLEMENTATION OF THE INSTRUCTION. THE
RESPONDENT CONTENDED THAT IT WAS UNDER NO OBLIGATION TO CONFER, CONSULT,
OR NEGOTIATE THE LOCAL IMPLEMENTATION OF A HIGHER LEVEL INSTRUCTION.
MOREOVER, IT WAS THE POSITION OF RESPONDENT THAT THE NAVSHIPS
INSTRUCTION WAS SO NARROWLY DEFINED THAT IT LEFT NO ROOM FOR NEGOTIATION
AT THE LOCAL LEVEL.
THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE, THAT THE UNILATERAL LOCAL IMPLEMENTATION OF
THE NAVSHIPS INSTRUCTION BY THE RESPONDENT WAS VIOLATIVE OF SECTION
19(A)( 6) OF THE ORDER. IN ARRIVING AT THIS CONCLUSION, THE ASSISTANT
SECRETARY FOUND THAT THE NAVSHIPS INSTRUCTION WAS NOT THE REGULATION OF
AN "APPROPRIATE AUTHORITY" WITHIN THE MEANING OF SECTION 12(A) OF THE
ORDER WHICH MIGHT PROPERLY SUPERSEDE OR MODIFY THE TERMS OF THE
NEGOTIATED AGREEMENT BETWEEN THE COMPLAINANT AND THE RESPONDENT. IN
THIS CONNECTION, THE ASSISTANT SECRETARY NOTED THAT THE UNITED
FEDERATION OF COLLEGE TEACHERS, LOCAL 1460, AND MERCHANT MARINE ACADEMY,
FLRC NO. 71A-15, AND DEPARTMENT OF THE AIR FORCE, SHEPHERD AIR FORCE
BASE, FLRC NO. 71A-60, DECISIONS OF THE FEDERAL LABOR RELATIONS COUNCIL
(COUNCIL) AND THE AIR FORCE DEFENSE LANGUAGE INSTITUTE, LACKLAND AIR
FORCE BASE, A/SLMR NO. 322, DECISION OF THE ASSISTANT SECRETARY, ALL
CITED BY THE ADMINISTRATIVE LAW JUDGE IN SUPPORT OF HIS CONCLUSION THAT
THE NAVSHIPS INSTRUCTION COULD SERVE TO MODIFY THE SUPSHIPS, PASCAGOULA,
NEGOTIATED AGREEMENT, WERE DISTINGUISHABLE BECAUSE THEY ALL INVOLVED
HIGHER LEVEL REGULATIONS CONTROLLING THE SCOPE OF NEGOTIATIONS, RATHER
THAN REGULATIONS MODIFYING THE TERMS OF AN EXISTING AGREEMENT. THE
ASSISTANT SECRETARY NOTED THAT THE STUDY COMMITTEE IN ITS REPORT AND
RECOMMENDATIONS, (1969), MADE CLEAR THAT ONLY IF A REGULATION MET ONE OF
THE STANDARDS SET FORTH IN SECTION 12(A) OF THE ORDER COULD IT SUPERSEDE
OR MODIFY THE TERMS OF AN EXISTING AGREEMENT; THAT THE REPORT AND
RECOMMENDATIONS AND THE COUNCIL'S DECISION IN IAM LOCAL LODGE 2424 AND
ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, FLRC NO. 70A-9, INDICATE
THAT THE TERM "APPROPRIATE AUTHORITIES" AS USED IN THE ORDER MEANS AN
AUTHORITY OUTSIDE THE AGENCY INVOLVED, AND NOT A HIGHER ECHELON, SUCH AS
NAVSHIPS, WITHIN THE SAME AGENCY; AND, THEREFORE, THAT THE NAVSHIPS
INSTRUCTION WAS NOT THE REGULATION OF AN APPROPRIATE AUTHORITY AND COULD
NOT, UNDER SECTION 12(A) OF THE ORDER, SERVE AS AUTHORITY FOR THE
UNILATERAL MODIFICATION OF THE NEGOTIATED AGREEMENT DURING ITS LIFE.
THE ASSISTANT SECRETARY THEN TURNED TO THE PARTIES' NEGOTIATED
AGREEMENT AND DETERMINED, CONTRARY TO THE CONCLUSION OF THE
ADMINISTRATIVE LAW JUDGE, THAT THE NAVSHIPS INSTRUCTION AS IMPLEMENTED
LOCALLY RESULTED IN A UNILATERAL MODIFICATION OF SUCH NEGOTIATED
AGREEMENT AND, THEREFORE, CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF
THE ORDER. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE
ACTIVITY RESCIND THE LOCAL IMPLEMENTATION OF THE NAVSHIPS INSTRUCTION
RETROACTIVE TO ITS IMPLEMENTATION DATE AND DISCONTINUE IMPLEMENTATION OF
SUCH INSTRUCTION.
DEPARTMENT OF THE NAVY,
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR
PASCAGOULA, MISSISSIPPI
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL NO. 561
ON JANUARY 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 PRACTICE 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 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 THIS CASE, INCLUDING THE
COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE INSTANT COMPLAINT ALLEGED ESSENTIALLY THAT THE RESPONDENT
VIOLATED SECTION 19(A)(6) OF THE ORDER BY UNILATERALLY IMPLEMENTING
NAVAL SHIP SYSTEMS COMMAND (NAVSHIPS) INSTRUCTION 12340.7. AS DISCUSSED
IN DETAIL BELOW, THIS INSTRUCTION ESTABLISHED MOBILITY REQUIREMENTS IN
ALL OF THE SUBORDINATE ACTIVITIES OF THE NAVSHIPS WITH RESPECT TO ALL
VACANT POSITIONS, NEW POSITIONS, AND AS TO THOSE POSITIONS IN WHICH
INCUMBENT EMPLOYEES HAD VOLUNTEERED.
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 RESPONDENT, THE SUPERVISOR OF SHIPBUILDING, CONVERSION AND
REPAIR, PASCAGOULA, MISSISSIPPI, (HEREINAFTER CALLED SUPSHIPS,
PASCAGOULA), IS ONE OF 15 ACTIVITIES, EACH A SUPSHIP, UNDER THE COMMAND
OF THE NAVSHIPS TO WHICH THE INSTRUCTION, DATED DECEMBER 29, 1972, WAS
DISTRIBUTED FOR IMMEDIATE IMPLEMENTATION. ON FEBRUARY 1, 1973, THE
DEPUTY, SUPSHIPS, PASCAGOULA, SPOKE TO THE COMPLAINANT'S SHOP STEWARD
AND INFORMED THE LATTER THAT IN THE NEAR FUTURE THE RESPONDENT WOULD
ISSUE AN INSTRUCTION AT THE LOCAL LEVEL PATTERNED AFTER THE NAVSHIPS
INSTRUCTION OF DECEMBER 29, 1972. APPROXIMATELY ONE WEEK LATER, THE
SUPSHIPS, PASCAGOULA, ISSUED A LOCAL INSTRUCTION, WHICH SUMMARIZED THE
ATTACHED NAVSHIPS INSTRUCTION AND STATED THAT ALL VACANT AND NEWLY
CREATED POSITIONS WOULD HAVE ADDED TO THEIR JOB DESCRIPTIONS A STATEMENT
THAT THE EMPLOYEE IN THAT POSITION WAS SUBJECT TO ROTATION OR
REASSIGNMENT AT FOUR YEAR INTERVALS; THAT AN EMPLOYEE APPOINTED TO ONE
OF THESE POSITIONS WOULD BE REQUIRED TO SIGN A STATEMENT THAT HE HAD
READ, UNDERSTOOD, AND ACCEPTED THE MOBILITY REQUIREMENTS; THAT ALL
PERSONNEL WERE ELIGIBLE TO VOLUNTEER FOR ROTATION OR REASSIGNMENT; AND
THAT THOSE VOLUNTEERING FOR ROTATION OR REASSIGNMENT WOULD HAVE THEIR
NAMES PLACED ON A SUPSHIP MOBILITY LIST AND HAVE THEIR JOB DESCRIPTIONS
CHANGED TO EFFECT THE MOBILITY REQUIREMENTS STATEMENT. ALTHOUGH, THE
NAVSHIPS INSTRUCTION INDICATED THAT EXCEPTIONS MIGHT BE MADE ON A CASE
BY CASE BASIS BY THE NAVSHIPS COMMAND, THIS INFORMATION WAS NOT
CONTAINED IN THE LOCAL INSTRUCTION, BUT WAS INCLUDED IN THE ATTACHED
NAVSHIPS INSTRUCTION.
AT THE TIME OF THE EVENTS HEREIN, THE COMPLAINANT WAS A PARTY TO A
NEGOTIATED AGREEMENT WITH THE RESPONDENT WHICH WAS EXECUTED ON MAY 23,
1972, AND RAN FOR TWO YEARS. THE COMPLAINANT CONTENDS THAT THE
RESPONDENT VIOLATED THIS NEGOTIATED AGREEMENT BY ITS LOCAL
IMPLEMENTATION OF THE NAVSHIPS INSTRUCTION. MOREOVER, THE COMPLAINANT
CONTENDS THAT UNDER SECTION 11(A) AND 11(B) OF THE EXECUTIVE ORDER THE
RESPONDENT WAS OBLIGATED TO CONSULT AND NEGOTIATE WITH ITS EMPLOYEES'
EXCLUSIVE REPRESENTATIVE REGARDING THE IMPACT OF THE NAVSHIPS
INSTRUCTION.
THE RESPONDENT, ON THE OTHER HAND, CONTENDS THAT, NOTWITHSTANDING THE
EXISTENCE OF A NEGOTIATED AGREEMENT, IT WAS UNDER NO OBLIGATION TO
NEGOTIATE THE LOCAL IMPLEMENTATION OF A HIGHER LEVEL REGULATION.
FURTHER, THE RESPONDENT CLAIMS THAT THE MOBILITY REQUIREMENTS CONTAINED
IN THE NAVSHIPS INSTRUCTION DID NOT, IN ANY WAY, VIOLATE THE NEGOTIATED
AGREEMENT. WITH RESPECT TO THE ALLEGATION THAT THE RESPONDENT WAS
OBLIGATED TO CONSULT AND NEGOTIATE REGARDING THE IMPACT OF THE NAVSHIPS
INSTRUCTION, AT SUPSHIPS, PASCAGOULA, IT IS THE RESPONDENT'S POSITION
THAT THE NAVSHIPS INSTRUCTION WAS EXPLICIT AND DID NOT LEAVE ANY ROOM
FOR NEGOTIATION AT THE LOCAL LEVEL.
IN HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT RESPONDENT HAD NOT VIOLATED ITS OBLIGATION UNDER SECTION
11(A) OF THE ORDER. IN REACHING THIS DETERMINATION, THE ADMINISTRATIVE
LAW JUDGE NOTED THAT THE MOBILITY INSTRUCTION WAS ISSUED BY A HIGHER
AUTHORITY, I.E., NAVSHIPS, AND WAS NOT WITHIN THE CONTROL OF THE
RESPONDENT, SUPSHIPS, PASCAGOULA; THAT THE NAVSHIPS INSTRUCTION WAS
UNIFORMLY APPLICABLE TO ALL SUPSHIPS, INCLUDING SUPSHIPS, PASCAGOULA /1/
; THAT SUCH A REGULATION OF HIGHER AUTHORITY WHICH WAS UNIFORMLY
APPLIED COULD PROPERLY LIMIT THE SCOPE OF BARGAINING LOCALLY /2/ ; AND
THAT THE COMPLAINANT WAS ADVISED OF THE NAVSHIPS INSTRUCTION PRIOR TO
THE ISSUANCE OF THE LOCAL INSTRUCTION AND ONLY SUGGESTED THAT THE
INSTRUCTION BE "RESCINDED," WHICH THE ADMINISTRATIVE LAW JUDGE FOUND WAS
AN ACTION BEYOND THE AUTHORITY OF RESPONDENT.
WITH REGARD TO THE COMPLAINANT'S CONTENTION THAT THE INSTRUCTION
RESULTED IN A BREACH OF THE PARTIES' EXISTING NEGOTIATED AGREEMENT, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THERE WAS NOTHING IN THE RECORD
TO SHOW THAT THE NEW POLICY, IN FACT, CAUSED THE RESPONDENT TO DEPART
FROM ANY PROVISION IN THE AGREEMENT AND THAT, "IT SIMPLY ADDED AN
ADDITIONAL PROVISION TO ELIGIBILITY FOR PROMOTION." MOREOVER, THE
ADMINISTRATIVE LAW JUDGE NOTED THAT THERE WAS NOTHING IN THE ABOVE-CITED
DECISIONS OF THE FEDERAL LABOR RELATIONS COUNCIL AND THE ASSISTANT
SECRETARY "TO INDICATE THAT THEY ARE LIMITED TO SITUATIONS IN WHICH THE
COLLECTIVE BARGAINING AGREEMENT IS FIRST BEING NEGOTIATED" AND THAT, IN
ANY EVENT, THE NEGOTIATED AGREEMENT SPECIFICALLY PROVIDED THAT IT WAS
SUBJECT TO "SUBSEQUENTLY PUBLISHED AGENCY POLICIES REQUIRED BY
REGULATIONS OF APPROPRIATE AUTHORITIES" AND THAT THE SUPSHIPS,
PASCAGOULA, INSTRUCTION WAS SUCH A REGULATION, AS IT WAS REQUIRED BY THE
NAVSHIPS INSTRUCTION.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I CONCLUDE THAT THE
UNILATERAL LOCAL IMPLEMENTATION BY THE RESPONDENT OF THE NAVSHIPS
INSTRUCTION REGARDING MOBILITY REQUIREMENTS WAS VIOLATIVE OF SECTION
19(A)(6) OF THE ORDER. IN ARRIVING AT THIS CONCLUSION, I FIND THAT THE
NAVSHIPS INSTRUCTION AT ISSUE HEREIN WAS NOT THE REGULATION OF AN
"APPROPRIATE AUTHORITY" WITHIN THE MEANING OF SECTION 12(A) OF THE ORDER
WHICH PROPERLY MAY SUPERSEDE OR MODIFY THE TERMS OF THE PARTIES'
NEGOTIATED AGREEMENT. FURTHER, I FIND THAT THE MERCHANT MARINE,
SHEPHERD AIR FORCE BASE, AND LACKLAND AIR FORCE BASE DECISIONS, CITED BY
THE ADMINISTRATIVE LAW JUDGE, ARE DISTINGUISHABLE FROM THE INSTANT
PROCEEDING BECAUSE THEY INVOLVED HIGHER LEVEL REGULATIONS AFFECTING THE
SCOPE OF NEGOTIATIONS, RATHER THAN, AS IN THE INSTANT CASE, REGULATIONS
WHICH, IN MY VIEW, MODIFIED THE TERMS OF AN EXISTING NEGOTIATED
AGREEMENT.
SECTION 12(A) OF THE ORDER SETS FORTH CERTAIN STANDARDS GOVERNING THE
ADMINISTRATION OF NEGOTIATED AGREEMENTS BETWEEN AGENCIES AND LABOR
ORGANIZATIONS. THE EVIDENCE ESTABLISHES THAT ARTICLE 1.4 OF THE
PARTIES' AGREEMENT, ENTITLED "CONTROLLING AUTHORITY", WHICH THE
ADMINISTRATIVE LAW JUDGE SET FORTH, IN PART, IN HIS REPORT AND
RECOMMENDATION, IS A VERBATIM RECITATION OF SECTION 12(A) OF THE ORDER.
IN ITS ENTIRETY IT READS:
IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES ARE
GOVERNED BY EXISTING OR FUTURE LAWS AND THE REGULATIONS OF
APPROPRIATE AUTHORITIES, INCLUDING
POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL; BY PUBLISHED
AGENCY POLICIES AND
REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT WAS APPROVED; AND
BY SUBSEQUENTLY PUBLISHED
AGENCY POLICIES AND REGULATIONS REQUIRED BY LAW OR BY THE REGULATIONS
OF APPROPRIATE
AUTHORITIES, OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT
A HIGHER AGENCY
LEVEL. (EMPHASIS ADDED.)
THE STUDY COMMITTEE, IN ITS REPORT AND RECOMMENDATIONS, (1969), MADE
CLEAR THAT ONLY IF A REGULATION MEETS ONE OF THE STANDARDS SET FORTH IN
SECTION 12(A), CAN IT SERVE TO SUPERSEDE OR MODIFY THE TERMS OF AN
EXISTING AGREEMENT. THUS, IN SECTION E.5 OF THE REPORT AND
RECOMMENDATIONS, THE STUDY COMMITTEE, AFTER NOTING THE CONTENTION THAT
AGENCIES HAD, IN THE PAST, CHANGED THEIR REGULATIONS TO NULLIFY CLAUSES
IN EXISTING AGREEMENTS, INDICATED, AMONG OTHER THINGS, THAT IT BELIEVED
"THAT THE ADMINISTRATION OF AN AGREEMENT SHOULD BE GOVERNED BY PUBLISHED
AGENCY POLICIES AND REGULATIONS IN EXISTENCE AT THE TIME THE AGREEMENT
WAS APPROVED... AND BY ANY CHANGES IN POLICIES AND REGULATIONS
SUBSEQUENTLY REQUIRED BY LAW OR OTHER APPROPRIATE AUTHORITY OUTSIDE THE
AGENCY OR AUTHORIZED BY THE TERMS OF A CONTROLLING AGREEMENT AT A HIGHER
AGENCY LEVEL." THE STUDY COMMITTEE CONCLUDED, IN THIS REGARD, THAT, "IT
SHOULD BE UNDERSTOOD... THAT AN AGREEMENT MUST BE BROUGHT INTO
CONFORMANCE WITH CURRENT AGENCY POLICIES AND REGULATIONS AT THE TIME IT
IS RENEGOTIATED OR BEFORE IT IS EXTENDED-- ." THE RECORD IN THE INSTANT
CASE DOES NOT REFLECT THAT THE SUPSHIPS INSTRUCTION WAS ISSUED PURSUANT
TO LAW, OR TO AGENCY REGULATIONS IN EXISTENCE AT THE TIME THE NEGOTIATED
AGREEMENT HEREIN WAS ENTERED INTO, OR THAT IT WAS AUTHORIZED BY A HIGHER
LEVEL CONTROLLING AGREEMENT. THEREFORE, IT IS CLEAR THAT THE SUPSHIPS
INSTRUCTION COULD EFFECTIVELY MODIFY THE TERMS OF THE PARTIES'
NEGOTIATED AGREEMENT, ONLY IF SUCH INSTRUCTION CONSTITUTED A POLICY OF
REGULATION REQUIRED BY THE REGULATION OF AN "APPROPRIATE AUTHORITY." IN
THIS REGARD, BOTH THE STUDY COMMITTEE AND THE FEDERAL LABOR RELATIONS
COUNCIL (COUNCIL) HAVE INDICATED THAT THE PHRASE "APPROPRIATE
AUTHORITIES" AS USED IN THE ORDER DOES NOT MEAN A HIGHER ECHELON, SUCH
AS NAVSHIPS, WITHIN THE SAME AGENCY. THUS, AS NOTED ABOVE, IN SECTION
E.5 OF THE REPORT AND RECOMMENDATIONS, THE STUDY COMMITTEE, INDICATED
THAT NEGOTIATED AGREEMENTS UNDER THE ORDER SHOULD BE GOVERNED BY, AMONG
OTHER THINGS, "REGULATIONS SUBSEQUENTLY REQUIRED BY LAW OR OTHER
APPROPRIATE AUTHORITY OUTSIDE THE AGENCY." (EMPHASIS ADDED.) AND,
CONSISTENT WITH THIS VIEW, THE COUNCIL WAS HELD THAT THE TERM
"APPROPRIATE AUTHORITIES" AS USED IN SECTION 12(A) OF THE ORDER "WAS
INTENDED TO MEAN THOSE AUTHORITIES OUTSIDE THE AGENCY CONCERNED, WHICH
ARE EMPOWERED TO ISSUE REGULATIONS AND POLICIES BINDING ON SUCH AGENCY."
/3/ AS THE NAVSHIPS INSTRUCTION WAS AN ISSUANCE OF A HIGHER ECHELON
WITHIN THE SAME AGENCY AS SUPSHIPS, PASCAGOULA, UNDER SECTION 12(A) OF
THE ORDER AND ARTICLE 1.4 OF THE PARTIES' NEGOTIATED AGREEMENT, I FIND
THAT IT WAS NOT THE REGULATION OF AN "APPROPRIATE AUTHORITY" AS THAT
TERM IS USED IN THE ORDER AND, THEREFORE, IT CANNOT SERVE AS AUTHORITY
FOR THE UNILATERAL MODIFICATION OF THE NEGOTIATED AGREEMENT DURING THE
LIFE OF SUCH AGREEMENT.
BASED ON THE FOREGOING, I FIND THAT THE DECISIONS OF THE COUNCIL AND
OF THE ASSISTANT SECRETARY RELIED ON BY THE ADMINISTRATIVE LAW JUDGE ARE
INAPPOSITE HEREIN BECAUSE, AS NOTED ABOVE, THOSE DECISIONS INVOLVED
REGULATIONS ISSUED BY A HIGHER ECHELON OR BY AN AGENCY WHICH DID NOT
MODIFY THE TERMS OF AN EXISTING NEGOTIATED AGREEMENT. NOR DOES THE
ASSISTANT SECRETARY'S DECISION IN BUREAU OF INDIAN AFFAIRS, INDIAN
AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO, A/SLMR NO. 341, CITED BY
THE ADMINISTRATIVE LAW JUDGE, REQUIRE A DIFFERENT RESULT, FOR, ALTHOUGH
THERE WAS A NEGOTIATED AGREEMENT AT A LOWER ECHELON INVOLVED IN THAT
CASE, THE AGREEMENT ITSELF STATED SPECIFICALLY THAT THE PARTIES WOULD BE
GOVERNED BY FUTURE REGULATIONS OF THE DEPARTMENT OF INTERIOR, BUREAU OF
INDIAN AFFAIRS. THUS, IN THAT CASE THE LABOR ORGANIZATION IN ITS
NEGOTIATED AGREEMENT ITSELF WAIVED THE PROTECTION OF SECTION 12(A) AND
MADE ITSELF SUBJECT TO REGULATIONS OF THE AGENCY ISSUED DURING THE TERM
OF THE PARTIES' EXISTING AGREEMENT.
HAVING FOUND THAT, UNDER THE CIRCUMSTANCES OF THIS CASE, THE
RESPONDENT WAS NOT ENTITLED TO MODIFY UNILATERALLY THE TERMS OF ITS
NEGOTIATED AGREEMENT BASED ON THE ISSUANCE OF AN INSTRUCTION BY
NAVSHIPS, IT IS NOW NECESSARY TO CONSIDER WHETHER THE IMPLEMENTING
INSTRUCTION ISSUED BY SUPSHIPS, PASCAGOULA, DID, IN FACT, CHANGE THE
TERMS AND CONDITIONS OF THE NEGOTIATED AGREEMENT. IN THIS CONNECTION,
SECTION 9.1 ARTICLE 9, PROMOTIONS: PROVIDES AS FOLLOWS, IN PERTINENT
PART:
9.1 IT IS A CONTINUING POLICY OF SUPSHIP PASCAGOULA TO UTILIZE TO THE
FULLEST EXTENT
PRACTICABLE, THE SKILLS, KNOWLEDGE AND POTENTIALS OF EMPLOYEES OF
THIS ACTIVITY. PROMOTION
PROCEDURES MUST CONFORM TO THE APPLICABLE CSC REGULATION, FPM, CMMI
AND THE SUPSHIP PASCAGOULA
MERIT PROMOTION PLAN. IT IS HEREBY AGREED THAT, IN ACCORDANCE WITH
THE REGULATORY
REQUIREMENTS OF THESE GOVERNMENTAL DIRECTIVES, CERTAIN GROUPS OF
INDIVIDUALS MUST BE GIVEN
PRIORITY CONSIDERATION FOR PROMOTION AS AN EXCEPTION TO MERIT
PROMOTION PROCEDURE. THESE
GROUPS AND/OR INDIVIDUALS AND THE PRIORITY ORDER IN WHICH THEY MUST
BE CONSIDERED ARE AS
FOLLOWS: (FIRST)-- ANY QUALIFIED NAVY EMPLOYEE WHO HAS BEEN DEMOTED
WITHOUT PERSONAL CAUSE
AND WHO IS ELIGIBLE FOR REPROMOTION TO THE GRADE LEVEL OF THE
POSITION BEING
FILLED; (SECOND)-- EMPLOYEES WHO HAVE BEEN AFFECTED BY
REDUCTION-IN-FORCE AND WHO HAVE BEEN
REFERRED FOR PRIORITY PLACEMENT EITHER THROUGH THE DEPARTMENT OF
DEFENSE CENTRALIZED REFERRAL
SYSTEM OR THROUGH DIRECT REFERRAL BY ANOTHER DOD ACTIVITY WITHIN THE
COMMUTING AREA OF SUPSHIP
PASCAGOULA.
WHEN MAKING SELECTIONS FROM THE TWO GROUPS DISCUSSED ABOVE, FULL
CONSIDERATION WILL BE
GIVEN TO THE SELECTION OF AVAILABLE SUPSHIP PASCAGOULA EMPLOYEES WHO
ARE QUALIFIED TO BE
INCLUDED IN SUCH GROUPS AS DEFINED ABOVE. IF THERE ARE PERSUASIVE
AND ACCEPTABLE REASONS FOR
NOT SELECTING ANY QUALIFIED AVAILABLE APPLICANT FROM ONE OF THE
AFOREMENTIONED EXCEPTED
GROUPS, THE POSITION WILL THEN NORMALLY BE FILED UNDER THE MERIT
PROMOTION PLAN . . ." /4/
THE NAVSHIPS INSTRUCTION IN THE INSTANT CASE DIRECTED THAT
INDIVIDUALS WHO VOLUNTEERED FOR REASSIGNMENT OR RELOCATION WOULD HAVE
THEIR NAMES PLACED ON A SUPSHIP MOBILITY LIST ALONG WITH HAVING THEIR
JOB DESCRIPTION CHANGED TO EFFECT THE STATEMENT CONCERNING THE MOBILITY
REQUIREMENTS OF THE JOB. THE NAVSHIPS INSTRUCTION ALSO DIRECTED THAT,
"AS LONG AS THERE ARE QUALIFIED INDIVIDUALS IN APPROPRIATE OCCUPATIONS
AVAILABLE FROM AN SML (SUPSHIP MOBILITY LIST), NO OTHER RECRUITMENT
SOURCE (INTERNAL OR EXTERNAL) MAY BE UTILIZED TO FILL A VACANCY."
CONTRARY TO THE CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE, I FIND
THAT THE NAVSHIPS INSTRUCTION DID MORE THAN SIMPLY ADD A PROVISION TO
ELIGIBILITY FOR PROMOTION. RATHER, I VIEW SUCH INSTRUCTION TO HAVE, IN
EFFECT, CHANGED THE STANDARDS FOR SELECTION SET FORTH IN SECTION 9.1,
ARTICLE 9 OF THE PARTIES' AGREEMENT. THUS, IN THE NEGOTIATED AGREEMENT
THE PARTIES AGREED TO GIVE PRIORITY WITH REGARD TO PROMOTIONS TO CERTAIN
GROUPS OF EMPLOYEES, BUT THE NAVSHIPS INSTRUCTION WOULD GIVE THAT
PRIORITY TO INDIVIDUALS ON THE SUPSHIP MOBILITY LIST WHO MIGHT OR MIGHT
NOT MEET THE PREFERENTIAL STANDARDS OF THE NEGOTIATED AGREEMENT. UNDER
THESE CIRCUMSTANCES, I FIND THAT THE RESPONDENT'S LOCAL IMPLEMENTATION
OF THE NAVSHIPS INSTRUCTION RESULTED IN A UNILATERAL MODIFICATION OF THE
PARTIES' NEGOTIATED AGREEMENT. SUCH UNILATERAL CONDUCT, IN MY VIEW,
CONSTITUTED A FAILURE TO MEET AND CONFER IN GOOD FAITH WITH RESPECT TO
PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 11(A) AND THEREBY WAS VIOLATIVE
OF SECTION 19(A)(6) OF THE ORDER.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CONDUCT PROHIBITED BY
SECTION 19(A)( 6) 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
POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF THE 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, SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR,
PASCAGOULA, MISSISSIPPI, SHALL:
1. CEASE AND DESIST FROM:
UNILATERALLY IMPLEMENTING NAVSHIPS INSTRUCTION 12340.7 AT THE
SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR, PASCAGOULA,
MISSISSIPPI, DURING THE TERM OF THE NEGOTIATED AGREEMENT WITH THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL NO. 561, EXECUTED MAY
23, 1972.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
A. RESCIND SUPSHIPS, PASCAGOULA INSTRUCTION 12340.3 INSOFAR AS IT
APPLIES TO THE SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR,
PASCAGOULA, MISSISSIPPI, RETROACTIVELY TO FEBRUARY 2, 1973, THE DATE OF
ITS IMPLEMENTATION, AND ABIDE BY THE TERMS AND CONDITIONS OF THE
NEGOTIATED AGREEMENT OF MAY 23, 1972, WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL NO. 561.
B. POST AT THE DEPARTMENT OF THE NAVY, SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR, PASCAGOULA, MISSISSIPPI, 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 EXECUTIVE OFFICER OF THE RESPONDENT
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 EXECUTIVE 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 THE ORDER
AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
MAY 15, 1974
/1/ THE ADMINISTRATIVE LAW JUDGE CITED IN THIS REGARD, UNITED
FEDERATION OF COLLEGE TEACHERS, LOCAL 1460, AND MERCHANT MARINE ACADEMY,
FLRC NO. 71A-15.
/2/ THE ADMINISTRATIVE LAW JUDGE CITED IN THIS REGARD DEPARTMENT OF
THE AIR FORCE, SHEPHERD AIR FORCE BASE, FLRC NO. 71A-60; AND AIR FORCE
DEFENSE LANGUAGE INSTITUTE, LACKLAND AIR FORCE BASE, A/SLMR NO. 322.
/3/ SEE IAM LOCAL LODGE 2424 AND ABERDEEN PROVING GROUND, ABERDEEN,
MARYLAND, FLRC NO. 70A-9.
/4/ CSC REFERS TO CIVIL SERVICE COMMISSION; FPM REFERS TO THE
FEDERAL PERSONNEL MANUAL; AND CMMI REFERS TO THE CIVILIAN MANPOWER
MANAGEMENT INSTRUCTION.
WE WILL NOT CONTINUE TO IMPLEMENT NAVSHIPS INSTRUCTION 12340.7,
REGARDING MOBILITY REQUIREMENTS, PRIOR TO THE EXPIRATION OF THE TERM OF
THE NEGOTIATED AGREEMENT OF MAY 23, 1972, WITH THE NATIONAL FEDERATION
OF FEDERAL EMPLOYEES, LOCAL NO. 561.
WE WILL RESCIND SUPSHIPS, PASCAGOULA'S INSTRUCTION 12340.3
IMPLEMENTING THE NAVSHIPS INSTRUCTION 12340.7, RETROACTIVE TO ITS
IMPLEMENTATION DATE OF FEBRUARY 2, 1973, AND ABIDE BY THE TERMS OF THE
NEGOTIATED AGREEMENT OF MAY 23, 1972, WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL NO. 561.
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 REGARDING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR, LABOR-MANAGEMENT RELATIONS, LABOR
MANAGEMENT SERVICES ADMINISTRATION, U.S. DEPARTMENT OF LABOR WHOSE
ADDRESS IS: ROOM 300, 1371 PEACHTREE STREET, N.E., ATLANTA. GEORGIA
30309.
IN THE MATTER OF
DEPARTMENT OF THE NAVY
SUPERVISOR OF SHIPBUILDING,
CONVERSION AND REPAIR
PASCAGOULA, MISSISSIPPI
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL NO. 561
IRVING I. GELLER, GENERAL COUNSEL
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
EDWARD T. BORDA, 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 JUNE 8, 1973 AND FILED JUNE 11, 1973. IT
ALLEGES A VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER BY THE
RESPONDENT. THE VIOLATION WAS ALLEGED TO CONSIST OF THE RESPONDENT
IMPLEMENTING A NEW PERSONNEL MOBILITY POLICY OF ITS NATIONAL OFFICE
WITHOUT NEGOTIATING OR CONSULTING WITH THE COMPLAINANT ALTHOUGH THE
COMPLAINANT WAS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
EMPLOYEES. THE COMPLAINANT CONTENDS THAT NEGOTIATION OR CONSULTATION
PRIOR TO SUCH IMPLEMENTATION WAS REQUIRED BY SECTION 11 OF THE ORDER.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. ON SEPTEMBER 21, 1973, THE ASSISTANT
REGIONAL DIRECTOR ISSUED A NOTICE OF HEARING TO BE HELD NOVEMBER 6, 1973
IN PASCAGOULA, MISSISSIPPI.
HEARINGS WERE HELD THAT DAY AND AT THAT PLACE. THE COMPLAINANT WAS
REPRESENTED BY THE GENERAL COUNSEL OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES. THE RESPONDENT WAS REPRESENTED BY AN ATTORNEY WHO IS THE
LABOR RELATIONS ADVISOR OF THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT OF
THE DEPARTMENT OF THE NAVY. THE PARTIES FILED TIMELY BRIEFS ON DECEMBER
4, 1973.
THE COMPLAINANT, LOCAL 561, IS THE EXCLUSIVE REPRESENTATIVE,
CERTIFIED UNDER THE EXECUTIVE ORDER, OF MOST OF THE NON-SUPERVISORY,
NON-PROFESSIONAL EMPLOYEES OF THE SUPERVISOR OF SHIPBUILDING, CONVERSION
AND REPAIR, AT PASCAGOULA, MISSISSIPPI. THE PARTIES HAVE A COLLECTIVE
BARGAINING AGREEMENT EXECUTED MAY 23, 1972. LOCAL 561 REPRESENTS ALSO
EMPLOYEES OTHER THAN RESPONDENT'S EMPLOYEES. THE PRESIDENT OF LOCAL
561, SHERWOOD O. BROWN, HAS HIS OFFICE IN MOBILE, ALABAMA. THE LOCAL
HAS A SHOP STEWARD, NEWBURN RACHEL, EMPLOYED BY RESPONDENT.
THE RESPONDENT SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR,
("SUPSHIPS, PASCAGOULA") IS ONE OF 15 ACTIVITIES OF THE NAVAL SHIP
SYSTEMS COMMAND ("NAVSHIPS") ENGAGED IN THE ADMINISTRATION OF NAVY
CONTRACTS WITH PRIVATE CONTRACTORS FOR THE BUILDING, CONVERSION, OR
REPAIR OF NAVY SHIPS. IN TERMS OF NUMBER OF EMPLOYEES, SUPSHIPS,
PASCAGOULA, IS ONE OF THE LARGER OF THE NAVY'S SUPSHIPS.
THE ADMINISTRATION OF SUPSHIPS CONTRACTS INVOLVES A RELATIONSHIP
BETWEEN SUPSHIPS EMPLOYEES AND EMPLOYEES OF THE CONTRACTOR AT THE
PARTICULAR SITE. THE SHIP SYSTEMS COMMAND OBSERVED THAT AT SOME
LOCATIONS, OTHER THAN PASCAGOULA, THERE WAS SOMETIMES REASON TO QUESTION
THE OBJECTIVITY OF SUPSHIPS EMPLOYEES IN ADMINISTERING CONTRACTS BECAUSE
OF LONG STANDING RELATIONS THAT HAD DEVELOPED BETWEEN A SUPSHIPS
EMPLOYEE AND THE CONTRACTOR'S COUNTERPART EMPLOYEE.
MEETINGS OF HEADS OF THE 15 ACTIVITIES WITH THE COMMANDER OF THE
NAVAL SHIP SYSTEMS COMMAND CONSIDERED VARIOUS METHODS OF OVERCOMING SUCH
PROBLEM. AMONG THE TECHNIQUES CONSIDERED WAS THE ADOPTION OF A POLICY
OF REQUIRING NON-CLERICAL EMPLOYEES UPON MOVING FROM ONE POSITION TO
ANOTHER BY PROMOTION OR OTHERWISE, TO AGREE TO REASSIGNMENT TO ANOTHER
NAVY CONTRACT ADMINISTRATION ACTIVITY AT INTERVALS OF NOT LESS THAN FOUR
YEARS AT THE SAME OR HIGHER GRADE. IT ADVISED THE NATIONAL HEADS OF THE
FIVE UNIONS, WITH LOCALS OF WHICH SUPSHIPS HAD EXCLUSIVE RECOGNITION, OF
SUCH POLICY AND SOLICITED THEIR COMMENTS. THE POLICY WOULD NOT APPLY TO
INCUMBENTS OF POSITIONS SO LONG AS THEY REMAINED IN THEIR POSITIONS. ON
SEPTEMBER 27, 1972, IT WROTE SUCH A LETTER TO THE NATIONAL PRESIDENT OF
N.F.F.E. AND SOLICITED HIS COMMENTS. ON OCTOBER 19, 1972, THE NATIONAL
PRESIDENT OF N.F.F.E. REPLIED EXPRESSING STRONG OPPOSITION TO SUCH A
MOBILITY REQUIREMENT. THE RECORD DOES NOT SHOW WHAT RESPONSES WERE
RECEIVED FROM THE OTHER UNIONS.
ON DECEMBER 29, 1972, THE COMMANDER OF NAVSHIPS ISSUED INSTRUCTION
12340.7 TO THE 15 SUPSHIPS. THE INSTRUCTION ESTABLISHED A NEW POLICY OF
MOBILITY OF SUPSHIPS NON-CLERICAL PERSONNEL. IT PROVIDED THAT THE JOB
DESCRIPTIONS OF ALL NEW POSITIONS AND POSITIONS THAT SHOULD BECOME
VACANT WOULD BE MODIFIED TO INCLUDE A STATEMENT THAT THE INCUMBENT OF
THE POSITION WOULD BE SUBJECT TO REASSIGNMENT TO ANOTHER ACTIVITY AT THE
SAME OR HIGHER GRADE AT INTERVALS OF APPROXIMATELY FOUR YEARS AND WOULD
BE REQUIRED TO SIGN AN ACCEPTANCE OF SUCH REQUIREMENT BEFORE HE COULD BE
APPOINTED TO SUCH NEW OR VACANT POSITION. IT DID NOT APPLY TO
INCUMBENTS OF SUCH POSITIONS SO LONG AS THEY REMAINED SUCH INCUMBENTS.
IT PROVIDED THAT NO GENERAL EXCEPTIONS TO THE NEW MOBILITY POLICY COULD
BE MADE BUT THAT ON A CASE-BY-CASE BASIS, WHERE THE ABILITY OF THE
ACTIVITY TO MEET ITS WORKLOAD WOULD BE AFFECTED, A REQUEST OF AN
INDIVIDUAL EXCEPTION COULD BE SUBMITTED BY THE SUPSHIPS TO THE COMMAND
OF NAVSHIPS. IT DIRECTED SUCH SUPSHIPS "IMMEDIATELY" TO ANNOUNCE THE
NEW MOBILITY POLICY.
ON FEBRUARY 1, 1973, THE DEPUTY SUPSHIPS, PASCAGOULA (CAPTAIN
LISANBY) SPOKE TO COMPLAINANT'S SHOP STEWARD (MR. RACHEL) WHO HAD BEEN
DESIGNATED BY THE PRESIDENT OF THE COMPLAINANT TO CONDUCT COMPLAINANT'S
BUSINESS AT PASCAGOULA. CAPTAIN LISANBY BELIEVED THAT MR. RACHEL WOULD
REFLECT THE VIEWS OF THE PEOPLE AFFECTED. HE DISCUSSED THE NATIONAL
INSTRUCTION AND TOLD MR. RACHEL THAT IN A FEW DAYS THE RESPONDENT WOULD
ISSUE AN INSTRUCTION LIKE THE NATIONAL INSTRUCTION. MR. RACHEL
EXPRESSED HIS CONCERN AND THE CONCERN OF OTHERS ABOUT HAVING PROMOTION
AND OTHER REASSIGNMENTS FORECLOSED WITHOUT AGREEING TO BEING REASSIGNED
TO OTHER LOCALITIES EVERY FOUR YEARS WITH ITS ATTENDANT DISRUPTION OF
FAMILY ARRANGEMENTS.
UNDER DATE OF FEBRUARY 2, 1973, BUT NOT RELEASED UNTIL ABOUT A WEEK
LATER, THE RESPONDENT (ONE OF THE 15 SUPSHIPS) ISSUED INSTRUCTION
12340.3. IT SUMMARIZED NAVSHIP INSTRUCTION 12340.7 EXCEPT THAT IT
OMITTED ANY REFERENCE TO THE POSSIBILITY OF EXCEPTIONS TO THE POLICY BUT
ATTACHED A COPY OF THE NAVSHIP INSTRUCTION. COPIES WERE POSTED ON
BULLETIN BOARDS AND DELIVERED TO DEPARTMENT HEADS FOR DISTRIBUTION
WITHIN THE DEPARTMENTS.
ABOUT TWO MONTHS LATER RACHEL WENT TO THE OFFICE OF THE LOCAL'S
PRESIDENT, MR. BROWN, IN MOBILE, TO DISCUSS THE NEW MOBILITY PROGRAM.
BROWN WAS NOT IN AND RACHEL LEFT A MEMORANDUM AND A COPY OF THE NATIONAL
INSTRUCTION. THE NEXT DAY BROWN CALLED THE ASSISTANT PERSONNEL OFFICE,
WOOTEN, AND STATED THAT THE RESPONDENT COULD NOT CHANGE THE PROMOTION
PLAN, A SUBJECT COVERED BY THE COLLECTIVE AGREEMENT, WITHOUT
NEGOTIATIONS. WOOTEN SAID THAT THE ACTION HAD BEEN TAKEN UPON
INSTRUCTIONS FROM HEADQUARTERS, THAT HE WOULD DISCUSS IT WITH OTHERS IN
THE PERSONNEL OFFICE AND CALL BROWN BACK.
SEVERAL DAYS LATER WOOTEN'S SUPERIOR IN THE PERSONNEL OFFICE CALLED
BROWN AND ASKED WHAT BOTHERED HIM. BROWN REPEATED HIS CONVERSATION WITH
WOOTEN AND STATED THAT HE CONSIDERED THE ISSUANCE OF THE LOCAL
INSTRUCTION TO BE A VIOLATION OF THEIR AGREEMENT. HAGGERT (WOOTEN'S
SUPERIOR) STATED THAT HE COULD NOT RETRACT OR CHANGE ANYTHING IN THE
LOCAL INSTRUCTION. AFTER FURTHER DISCUSSION BROWN SAID THAT HE WOULD
TALK WITH ADMIRAL PAYNE, THE HEAD OF SUPSHIPS, PASCAGOULA.
ABOUT APRIL 5, 1973, BROWN CALLED ADMIRAL PAYNE AND SPOKE TO HIS
DEPUTY. THE DEPUTY REITERATED THAT THE NEW MOBILITY REQUIREMENT WAS
NAVY-WIDE AND THEREFORE NOT SUBJECT TO THE AGREEMENT. BROWN DISAGREED,
AND WHEN THE DEPUTY SUPERVISOR SAID THAT THERE WAS NOTHING HE COULD DO
ABOUT IT BROWN SAID HE WOULD SEND A LETTER.
ON APRIL 30, 1973, BROWN SENT ADMIRAL PAYNE A LETTER CHARGING THAT
THE NATIONAL INSTRUCTION WAS IN VIOLATION OF THE LOCAL'S AGREEMENT WITH
THE RESPONDENT AND OF SECTIONS 11(B) AND 19(A)(6) OF THE EXECUTIVE
ORDER. THE LETTER SAID ALSO THAT UNLESS THE INSTRUCTIONS WERE RESCINDED
IMMEDIATELY AND THE LOCAL INVITED TO NEGOTIATE PRIOR TO THE INSTRUCTIONS
AGAIN BECOMING EFFECTIVE, HE WOULD FILE AN UNFAIR LABOR PRACTICE
COMPLAINT. /1/ ADMIRAL PAYNE REPLIED ON MAY 9, 1973, DENYING A
VIOLATION OF THE AGREEMENT OR THE EXECUTIVE ORDER. HE STATED ALSO THAT
THE POLICY WAS DIRECTED BY HIGHER AUTHORITY AND NOT A MATTER WITHIN
LOCAL DISCRETION; THAT AN INVITATION TO THE COMPLAINANT TO NEGOTIATE
ABOUT IT WAS INAPPROPRIATE SINCE IT COULD NOT PRODUCE RESULTS; THAT
PRIOR TO THE ISSUANCE OF THE LOCAL INSTRUCTION DISCUSSIONS HAD BEEN HAD
WITH THE SHOP STEWARD, THE COMPLAINANT'S LOCAL REPRESENTATIVE; AND THAT
HE COULD NOT COMPLY WITH THE REQUEST THAT THE INSTRUCTION BE RESCINDED.
A MONTH LATER THE COMPLAINT WAS FILED.
THERE IS NO EVIDENCE THAT RESPONDENT AT ANY TIME REFUSED A REQUEST BY
THE COMPLAINANT TO DISCUSS EITHER THE NATIONAL OR THE LOCAL
INSTRUCTIONS. THERE IS A CONFLICT IN EVIDENCE CONCERNING THE EXTENT, IF
ANY, TO WHICH EMPLOYEES IN THE UNIT WERE IN FACT INHIBITED BY THE
INSTRUCTION FROM APPLYING FOR A VACANCY. SUCH CONFLICT NEED NOT BE
RESOLVED SINCE THE RESOLUTION OF SUCH FACT IS IRRELEVANT TO THE
RESOLUTION OF THIS CASE.
ARTICLE 9 OF THE AGREEMENT BETWEEN THE PARTIES COVERS PROMOTIONS. IT
PROVIDES THE BASES OF AND THE PROCEDURES FOR MAKING PROMOTIONS.
PARAGRAPH 1.4 OF THE AGREEMENT IS CAPTIONED "CONTROLLING AUTHORITY"
AND PROVIDES:
"IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
OFFICIALS AND EMPLOYEES ARE
GOVERNED BY EXISTING OR FUTURE LAWS AND REGULATIONS OF APPROPRIATE
AUTHORITIES...BY PUBLISHED
AGENCY POLICIES AND REGULATIONS...BY SUBSEQUENTLY PUBLISHED AGENCY
POLICIES AND REGULATIONS
REQUIRED BY...THE REGULATIONS OF APPROPRIATE AUTHORITIES..."
PARAGRAPH 2.2 IS CAPTIONED "AMENDMENT" AND PROVIDES:
"BY MUTUAL CONSENT, THE PARTIES MAY EFFECT AMENDMENT OF, OR MAY MAKE
SUPPLEMENTS TO, THIS
AGREEMENT IF SUCH ACTION IS NECESSARY TO REFLECT LEGAL OR REGULATORY
CHANGES OR AT OTHER TIMES
WHEN CONSIDERED NECESSARY. SAID SUPPLEMENTAL AGREEMENTS SHALL BECOME
EFFECTIVE ON THE
APPROVAL DATE OF THE DIRECTOR, OFFICE OF CIVILIAN MANPOWER
MANAGEMENT."
PARAGRAPH 3.1 IS SUBCAPTIONED "EMPLOYER RIGHTS" AND INCLUDES:
"...THE RIGHT TO MAKE RULES AND REGULATIONS IS AN ACKNOWLEDGED
FUNCTION OF THE
EMPLOYER. IN MAKING RULES RELATING TO PERSONNEL POLICY...THE
EMPLOYER SHALL HAVE DUE REGARD
FOR THE OBLIGATIONS IMPOSED BY THIS AGREEMENT AND THE PROVISIONS OF
EXECUTIVE ORDER 11491..."
PARAGRAPH 4.1 IN SUBSTANCE COPIES A PORTION OF SECTION 11(A) OF THE
EXECUTIVE ORDER.
PARAGRAPH 4.2 PROVIDES:
"...MATTERS APPROPRIATE FOR CONSULTATION OR NEGOTIATION...ARE
POLICIES...RELATED TO WORKING
CONDITIONS WHICH ARE WITHIN THE DISCRETION OF THE EMPLOYER. THESE
MATTERS INCLUDE...PROMOTION
PLANS..."
THE COMPLAINT IN THIS CASE CHARGES A VIOLATION OF SECTION 19(A)(6) OF
THE EXECUTIVE ORDER, A REFUSAL TO CONSULT, CONFER, OR NEGOTIATE WITH THE
COMPLAINANT "AS REQUIRED BY THIS ORDER" CONCERNING THE NEW MOBILITY
POLICY. MORE SPECIFICALLY, IT CONTENDS THAT THERE WAS A VIOLATION OF
THE OBLIGATION IMPOSED BY SECTION 11(A) OF THE ORDER ON THE RESPONDENT
TO MEET AT REASONABLE TIMES WITH COMPLAINANT, THE CERTIFIED AND
RECOGNIZED EXCLUSIVE REPRESENTATIVE, AND CONFER CONCERNING PERSONNEL
POLICIES, AND A VIOLATION OF SECTION 11(B) WHICH IMPOSES ON AN AGENCY
THE DUTY, IN PRESCRIBING REGULATIONS CONCERNING PERSONNEL POLICIES, TO
HAVE "DUE REGARD FOR THE OBLIGATION IMPOSED BY PARAGRAPH (A)".
THE RESPONDENT IN THIS CASE IS SUPSHIPS, PASCAGOULA, A SUBORDINATE
UNIT OF NAVSHIPS, WHICH IN TURN IS A DIVISION OF THE DEPARTMENT OF THE
NAVY. THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES IS AN
AGREEMENT BETWEEN SUPSHIPS, PASCAGOULA AND LOCAL 561, THE COMPLAINANT.
THE OBLIGATION IMPOSED BY SECTION 11(A) IS TO CONFER CONCERNING
PERSONNEL POLICIES "SO FAR AS MAY BE APPROPRIATE UNDER APPLICABLE LAWS
AND REGULATIONS, INCLUDING...PUBLISHED AGENCY POLICIES AND
REGULATIONS...." THE INQUIRY, THEN, IS TO DETERMINE WHETHER THE
RESPONDENT, THE LOCAL ACTIVITY FAILED TO CONFER, CONSULT, OR NEGOTIATE
CONCERNING THE NEW PERSONNEL POLICY OF MOBILITY "SO FAR AS MAY BE
APPROPRIATE" UNDER GOVERNING REGULATIONS OF HIGHER AUTHORITY IN THE
AGENCY.
FIRST IT SHOULD BE OBSERVED THAT THE NAVSHIP MOBILITY INSTRUCTION WAS
UNIFORMLY APPLICABLE TO ALL 15 OF THE SUPSHIPS WITHIN NAVSHIPS
JURISDICTION. THIS CASE, THEN, DOES NOT FALL WITHIN THAT PART OF THE
DECISION IN MERCHANT MARINE ACADEMY, FLRC NO. 71A-15 (NOVEMBER 1972),
WHICH STATES THAT AN AGENCY MAY NOT EVADE THE OBLIGATION TO BARGAIN BY
AN ORDER RESTRICTING BARGAINING BY AN INDIVIDUAL UNIT IN THE AGENCY BY
AN AD HOC ORDER APPLICABLE TO THAT ONE UNIT AND THAT THE LIMITATION IN
SECTION 11(A) ON THE SCOPE OF APPROPRIATE NEGOTIATIONS IS LIMITED TO
POLICIES AND REGULATIONS OF HIGHER AUTHORITY WHICH ARE "ISSUED TO
ACHIEVE A DESIRABLE DEGREE OF UNIFORMITY IN THE ADMINISTRATION OF
MATTERS COMMON TO ALL EMPLOYEES OF THE AGENCY, OR, AT LEAST, TO
EMPLOYEES OF MORE THAN ONE SUBORDINATE ACTIVITY." THE NAVSHIP
INSTRUCTION HERE INVOLVED MEETS THAT TEST. IT WAS ISSUED TO ALL 15
SUPSHIPS TO GOVERN ALL EMPLOYEES OF ALL 15 PERFORMING SIMILAR WORK,
CIVILIAN EMPLOYEES OF THE NAVY ENGAGED IN QUALITY ASSURANCE IN THE
PERFORMANCE OF NAVSHIPS CONTRACTS.
THE EXTENT TO WHICH THE OBLIGATION OF AN ACTIVITY TO BARGAIN, IMPOSED
BY SECTION 11(A), IS LIMITED BY THE PHRASE "SO FAR AS MAY BE APPROPRIATE
UNDER APPLICABLE LAWS AND REGULATIONS, INCLUDING...PUBLISHED AGENCY
POLICIES AND REGULATIONS", IS NOT A QUESTION OF FIRST IMPRESSION. IN
ADDITION TO THE MERCHANT MARINE ACADEMY CASE, TWO OTHER DECISIONS ARE
PARTICULARLY PERTINENT HERE.
IN DEPARTMENT OF THE AIR FORCE, SHEPPARD AIR FORCE BASE, FLRC NO.
71A-60 (APRIL 1973), THE AIR TRAINING COMMAND HAD ISSUED A COMPREHENSIVE
MERIT PROMOTION PLAN TO GOVERN THE ACTIVITIES THROUGHOUT ITS
JURISDICTION. THE UNION IN THAT CASE CONTENDED, INTER ALIA, THAT THE
COMMAND'S REGULATION WAS INVALID BECAUSE, ALTHOUGH IT PERMITTED
NEGOTIATION ON MATTERS OF MERIT PROMOTION NOT IN CONFLICT WITH THE PLAN,
IT VIOLATED SECTION 11 BECAUSE IT WAS SO DETAILED AND OVERLY
PRESCRIPTIVE AS TO PREVENT ANY SIGNIFICANT NEGOTIATIONS AT THE LOCAL
LEVEL. AS IN THIS CASE, THE COMMAND HAD SOLICITED THE VIEWS OF THE
NATIONAL UNIONS WHOSE LOCALS HELD RECOGNITION AT THE LOCAL ACTIVITIES.
ALSO AS IN THIS CASE, THE ONLY SPECIFIC SUGGESTION MADE BY THE
COMPLAINANT WAS THAT THE REGULATION BE RESCINDED. THE COUNCIL HELD:
"...THE ATC REGULATION IS THE TYPE OF HIGHER LEVEL PUBLISHED POLICY
OR REGULATION APPLICABLE UNIFORMLY TO MORE THAN ONE ACTIVITY, THAT MAY
PROPERLY LIMIT THE SCOPE OF NEGOTIATIONS AT SUCH SUBORDINATE ACTIVITIES
UNDER SECTION 11 OF THE ORDER."
THE COUNCIL NOTED THAT WHILE THE WISDOM OF ISSUING AN EXPLICIT AND
DETAILED REGULATION CONCERNING THE MATTER OF PERSONNEL POLICY, THEREBY
REDUCING THE SCOPE OF BARGAINING, MIGHT BE QUESTIONED, THAT DID NOT
AFFECT ITS VALIDITY SO LONG AS IT WAS ISSUED TO ACHIEVE A DESIRED DEGREE
OF UNIFORMITY IN THE ADMINISTRATION OF MATTERS COMMON TO THE SUBORDINATE
ACTIVITIES.
AIR FORCE DEFENSE LANGUAGE INSTITUTE, LACKLAND AIR FORCE BASE, A/SLMR
NO. 322 (NOVEMBER 1973) IS STRIKINGLY SIMILAR TO THIS CASE. IN THAT
CASE THE HEADQUARTERS OF DEFENSE LANGUAGE INSTITUTE HAD ISSUED A NEW
REGULATION CHANGING THE PRE-EXISTING BASIS FOR SELECTION OF PERSONNEL TO
BE ASSIGNED TO OVERSEAS DUTY. THE NEW REGULATION WAS APPLICABLE TO ALL
ITS BRANCHES INCLUDING THE RESPONDENT IN THAT CASE. UPON RECEIVING THE
NEW REGULATION ON APRIL 14, 1972, THE RESPONDENT HAD A MEETING WITH
REPRESENTATIVES OF THE COMPLAINANT AND INFORMED THEM OF THE NEW
REGULATION AND THAT IT WOULD BE ANNOUNCED TO THE STAFF AND IMPLEMENTED
ON MONDAY, APRIL 17, 1972, AND ASKED FOR COMMENTS. THE COMPLAINANT
OBJECTED BOTH TO THE FACT THAT IT HAD NOT HAD TIME TO READ THE
REGULATION AND THAT IT HAD NOT BEEN CONSULTED. THE RESPONDENT REPLIED
THAT IT HAD BEEN ISSUED BY HIGHER AUTHORITY AND THAT THEREFORE IT WAS
NOT NECESSARY TO CONSULT WITH THE COMPLAINANT.
AT THE SUBSEQUENT DISCUSSIONS THE ONLY SPECIFIC SUGGESTION MADE BY
THE COMPLAINANT WAS THAT THE REGULATION BE RESCINDED. IN DECIDING THE
COMPLAINT BASED ON A VIOLATION OF SECTION 19(A)(6), THE ASSISTANT
SECRETARY SAID THAT WHILE IT MIGHT HAVE BEEN BETTER PRACTICE FOR
HEADQUARTERS TO HAVE NOTIFIED THE COMPLAINANT OF ITS INTENTION TO ISSUE
THE NEW REGULATION AND TO HAVE SOUGHT ITS VIEWS, HE HELD:
"...ONCE THE AGENCY HEADQUARTERS ISSUED THE REGULATION APPLICABLE
UNIFORMLY TO EMPLOYEES OF
OTHER BRANCHES OF DLI AS WELL AS THOSE DLIEL EMPLOYEES AT LACKLAND
AIR FORCE BASE, THE MATTERS
CONTAINED THEREIN, IN EFFECT, WERE REMOVED FROM THE SCOPE OF
NEGOTIATIONS AT THE LOCAL
LEVEL. ACCORDINGLY, THE RESPONDENT WAS NOT OBLIGATED TO MEET AND
CONFER WITH THE COMPLAINANT
CONCERNING THE ISSUANCE OF DLI REGULATION 690-2."
IN THE INSTANT CASE, AS IN THOSE CASES, THE ISSUANCE OF THE GOVERNING
INSTRUCTION 12340.7 WAS BY HIGHER AUTHORITY IN THE AGENCY AND NOT WITHIN
THE CONTROL OF THE RESPONDENT. AS IN THE LACKLAND AIR FORCE BASE CASE,
THE LOCAL ACTIVITY (THE RESPONDENT), ADVISED THE COMPLAINANT OF THE NEW
NATIONAL INSTRUCTION AND SOLICITED COMMENTS PRIOR TO ISSUING ITS LOCAL
IMPLEMENTING INSTRUCTION 12340.3. AS IN BOTH THESE CASES, THEREAFTER
THE ONLY SPECIFIC SUGGESTION MADE BY THE COMPLAINANT WAS THAT THE
INSTRUCTION BE RESCINDED, AN ACTION BEYOND THE AUTHORITY OF THE FACILITY
TO DO SO. THE NATIONAL INSTRUCTION DIRECTED THAT THE NEW POLICY BE
APPLIED "IMMEDIATELY". ALL THAT THE LOCAL INSTRUCTION DID WAS TO
ANNOUNCE AND SUMMARIZE THE NATIONAL INSTRUCTION AND ATTACH A COPY OF IT.
THERE WAS NOTHING FOR NEGOTIATION. THE FOREGOING DECISIONS THUS
REQUIRE A DISMISSAL OF THE COMPLAINT IN THIS CASE.
THE COMPLAINANT ARGUES THAT THE PARTIES COULD HAVE NEGOTIATED ABOUT
EXCEPTIONS TO THE APPLICATION OF THE NEW POLICY. DURING THE HEARING THE
COMPLAINANT FIRST CONCEDED /2/ THAT THE LOCAL INSTRUCTION ONLY
SUMMARIZED THE NATIONAL INSTRUCTION. LATER IT WITHDREW THAT CONCESSION
/3/ TO THE EXTENT OF POINTING OUT THAT THE SUMMARY DID NOT INCLUDE A
REFERENCE TO THE POSSIBILITY OF EXCEPTIONS. BUT THE LOCAL INSTRUCTION
REFERRED TO AND ATTACHED A COPY OF THE NATIONAL INSTRUCTION. AND THE
NATIONAL INSTRUCTION STATES SPECIFICALLY THAT "NO GENERAL EXCEPTIONS TO
THE MOBILITY POLICY WILL BE GRANTED" BUT THAT, ON AN INDIVIDUAL
CASE-BY-CASE BASIS, "WHERE THE ABILITY OF THE ACTIVITY TO MEET ITS
WORKLOAD COULD BE AFFECTED, INDIVIDUAL REQUESTS FOR EXCEPTIONS MAY BE
SUBMITTED TO THE COMMAND." (EMPHASIS ADDED) THAT LEFT NO ROOM FOR
NEGOTIATION OF A MEANINGFUL PROVISION TO BE INCLUDED IN THE COLLECTIVE
AGREEMENT. ALTHOUGH ASKED REPEATEDLY DURING THE HEARING WHAT SUBJECT
THE PARTIES COULD HAVE NEGOTIATED ABOUT, THE COMPLAINANT NOWHERE, DURING
THE HEARING OR IN ITS BRIEF, SPECIFIED ANY SUBJECT OTHER THAN POSSIBLE
EXCEPTIONS. AND EVEN IF THERE WERE ROOM FOR NEGOTIATION ON THE MATTER
OF EXCEPTIONS, THE COMPLAINANT NEVER MADE A PROPOSAL ON THAT SUBJECT
ALTHOUGH IT KNEW RESPONDENT INTENDED TO PUT THE NEW INSTRUCTION IN
EFFECT, AND SO THERE WAS NO REFUSAL TO DISCUSS IT. THE ONLY PROPOSAL
MADE BY THE COMPLAINANT WAS THAT THE INSTRUCTION BE RESCINDED, SOMETHING
THE RESPONDENT COULD NOT DO.
IN ADDITION, THE OBLIGATION IMPOSED BY SECTION 11(A) TO CONFER
CONCERNING PERSONNEL POLICIES IS NOT A UNILATERAL OBLIGATION. IT
PROVIDES THAT AN "AGENCY AND A LABOR ORGANIZATION THAT HAS BEEN ACCORDED
EXCLUSIVE RECOGNITION", BOTH OF THEM, HAVE THE OBLIGATION TO CONFER ON
SUCH SUBJECT. THE RECORD DOES NOT SHOW THAT THE RESPONDENT EVER, UPON
REQUEST, REFUSED TO CONFER ON THAT SUBJECT OR ANY OTHER. NOR DOES THE
RECORD SHOW THAT THE COMPLAINANT EVER MADE ANY SPECIFIC PROPOSAL OTHER
THAN THAT THE INSTRUCTION BE RESCINDED. IT WAS BEYOND THE AUTHORITY OF
THE RESPONDENT TO ACCEDE TO SUCH REQUEST, NOR DID IT EVER REFUSE TO
DISCUSS IT. THE UNION, ALTHOUGH CONSULTED PRIOR TO THE ISSUANCE OF THE
LOCAL INSTRUCTION, NEVER OBJECTED TO IT UNTIL TWO MONTHS LATER, AND THEN
ONLY TO CONTEND THAT IT WAS INVALID.
THE COMPLAINANT ARGUES THAT THE DECISIONS CITED ABOVE ARE NOT
APPLICABLE WHERE AS HERE, THERE IS A COLLECTIVE AGREEMENT BETWEEN THE
ACTIVITY AND THE LOCAL UNION ESPECIALLY WHERE THE CHANGE BY HIGHER
AUTHORITY CAUSED A BREACH OF THAT AGREEMENT.
FIRST, THERE IS NOTHING IN THE RECORD TO SHOW THAT THE NEW POLICY
CAUSED THE RESPONDENT TO DEPART FROM ANY PROVISION OF THE AGREEMENT. IT
SIMPLY ADDED AN ADDITIONAL PROVISION TO ELIGIBILITY FOR PROMOTION.
THERE IS NOTHING IN THE DECISIONS CITED ABOVE TO INDICATE THAT THEY ARE
LIMITED TO SITUATIONS IN WHICH THE COLLECTIVE BARGAINING IS FIRST BEING
NEGOTIATED. AND EVEN IF THERE WERE INVOLVED A BREACH OF CONTRACT, A
SIMPLE BREACH, OF ITSELF, IT NOT A VIOLATION OF THE EXECUTIVE ORDER.
BUT EVEN MORE PERSUASIVELY, THE AGREEMENT ITSELF ENVISAGES CHANGES IN
WORKING CONDITIONS BEING EFFECTUATED IN THE MANNER AS WAS DONE HERE.
AS WAS RECITED ABOVE UNDER "FACTS", THE PARTIES' AGREEMENT ITSELF, IN
PARAGRAPH 1.4, PROVIDES THAT THE PARTIES ARE GOVERNED BY REGULATIONS OF
APPROPRIATE AUTHORITIES INCLUDING SUBSEQUENTLY PUBLISHED AGENCY POLICIES
AND REGULATIONS REQUIRED BY REGULATIONS OF APPROPRIATE AUTHORITIES. THE
LOCAL INSTRUCTION HERE INVOLVED FITS EXACTLY WITHIN THAT DESCRIPTION, A
REGULATION REQUIRED BY REGULATION OF HIGHER AUTHORITY, AND SO THE
AGREEMENT ITSELF WAS SUBJECT TO THE ADDITIONAL CONDITION TO PROMOTION
HERE INVOLVED. ALSO, PARAGRAPH 4.2 PROVIDES THAT THE MATTERS
APPROPRIATE FOR CONSULTATION OR NEGOTIATION ARE THOSE WITHIN THE
DISCRETION OF THE RESPONDENT. HERE THE RESPONDENT HAD NO DISCRETION
WHETHER TO COMPLY WITH THE NATIONAL INSTRUCTION; IT WAS UNDER MANDATE
TO DO SO "IMMEDIATELY". SINCE THE AGREEMENT ITSELF PROVIDED THAT IT
WOULD BE SUBJECT TO SUCH CONDUCT, SUCH CONDUCT WAS NOT A BREACH OF THE
AGREEMENT.
THE COMPLAINANT RELIES ALSO ON DEPARTMENT OF THE NAVY, BUREAU OF
MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289 (JULY
1973) AND THE DECISION OF THE ADMINISTRATIVE LAW JUDGE IN BUREAU OF
INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO,
CASE NO. 63-4128(CA), NOW A/SLMR NO. 341 (JANUARY 1974).
THE FIRST OF THOSE CASES IS TOTALLY INAPPOSITE. IT DID NOT INVOLVE A
DIRECTION FROM HIGHER AUTHORITY. IT HELD THAT THE ACTIVITY WAS UNDER
OBLIGATION TO CONSULT WITH THE RECOGNIZED UNION CONCERNING THE
IMPLEMENTATION OF A DECISION TO HAVE A REDUCTION IN FORCE. IT IS BY NOW
WELL ESTABLISHED THAT WHILE AN AGENCY MAY NOT HAVE AN OBLIGATION TO
CONSULT WITH THE UNION ON WHETHER THERE SHALL BE A RIF, IT DOES HAVE THE
OBLIGATION TO CONSULT ON THE IMPACT OF THE RIF.
THE INDIAN AFFAIRS DATA CENTER CASE IS DISTINGUISHABLE. IN THAT
CASE, THE BUREAU OF INDIAN AFFAIRS, THE HIGHER AUTHORITY, ISSUED A NEW
POLICY, GOVERNING ALL SUBORDINATE UNITS INCLUDING THE RESPONDENT,
EXPANDING CONSIDERABLY THE PREVIOUSLY RECOGNIZED INDIAN PREFERENCE IN
EMPLOYMENT. BUT IN THAT CASE THE DIRECTIVE ITSELF STATED THAT IN THE
APPLICATION OF THE NEW POLICY CAREFUL ATTENTION MUST BE GIVEN TO THE
RIGHTS OF NON-INDIAN EMPLOYEES, AND ITS IMPLEMENTING INSTRUCTIONS
EMPHASIZED THAT THE IMPACT OF THE NEW POLICY REQUIRED A SPECIAL
SENSITIVITY TO ASSURE EQUITABLE APPLICATION OF THE NEW POLICY WITHIN THE
PRESCRIBED LIMITS. THE NEW DIRECTIVE AND ITS IMPLEMENTING INSTRUCTIONS
BY THE BUREAU THUS THEMSELVES RECOGNIZED ROOM FOR CONSULTATION AND
DISCUSSION ON LOCAL IMPLEMENTATION. THE ASSISTANT SECRETARY HELD THAT
THE ADAMANT POSITION OF THE RESPONDENT IN THAT CASE, THAT IT WAS WITHOUT
AUTHORITY TO DO ANYTHING CONCERNING THE NEW POLICY BECAUSE IT LEFT IT NO
DISCRETION OR ROOM FOR NEGOTIATION, WAS IN VIOLATION OF SECTION 19(A)(6)
OF THE ORDER. IN THE INSTANT CASE, UNLIKE IN THAT CASE, THE COMPLAINANT
NEVER MADE A PROPOSAL WITHIN THE AUTHORITY OF THE RESPONDENT TO
NEGOTIATE NOR HAS IT BEEN ABLE TO IDENTIFY A SIGNIFICANT POINT WITHIN
THE AMBIT OF RESPONDENT'S AUTHORITY TO NEGOTIATE.
THE COMPLAINANT MAKES OTHER ARGUMENTS, SOME OF THEM HAVING IN THE
ABSTRACT A DEGREE OF PERSUASIVENESS, PERTAINING TO THE UNDESIRABLE
RESULTS THAT MAY FLOW FROM NOT SUSTAINING THE COMPLAINT IN THIS CASE.
E.G., IT DEMORALIZES COLLECTIVE BARGAINING BY A RECOGNIZED
REPRESENTATIVE TO HAVE WORKING CONDITIONS SUBJECT TO UNILATERAL CHANGE
BY HIGHER AUTHORITY AND DISCOURAGES SUPPORT OF SUCH A REPRESENTATIVE.
SUCH ARGUMENTS, MADE TO ME, ARE MADE IN THE WRONG FORUM. THEY
CONSTITUTE SIMPLY A CHALLENGE TO THE WISDOM OF THE LIMITATION IN SECTION
11(A) OF THE EXECUTIVE ORDER AS INTERPRETED AND APPLIED BY THE FEDERAL
LABOR RELATIONS COUNCIL AND THE ASSISTANT SECRETARY. I AM BOUND BY THE
DECISIONS OF THE COUNCIL AND THE ASSISTANT SECRETARY.
THE COMPLAINT SHOULD BE DISMISSED.
DATED: JANUARY 29, 1974
WASHINGTON, D.C.
/1/ EXH. C-2. THIS IS NOT WHAT THE LETTER SAYS LITERALLY, BUT THAT
IS WHAT IT WAS MEANT AND UNDERSTOOD TO SAY.
/2/ AT TR. 49-50.
/3/ AT TR. 95.
4 A/SLMR 389; P. 321; CASE NOS. 61-2175(CU), 61-2176(CU); MAY 15,
1974.
DEPARTMENT OF THE ARMY,
TOOELE ARMY DEPOT,
TOOELE, UTAH
A/SLMR NO. 389
THE PETITIONER, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, TOOELE FEDERAL LODGE NO. 2261, AFL-CIO (IAM), FILED A PETITION
FOR CLARIFICATION OF UNIT (CU) SEEKING TO CLARIFY AN EXISTING
EXCLUSIVELY RECOGNIZED BARGAINING UNIT IN ORDER TO HAVE IT CONFORM TO A
NEW ORGANIZATIONAL STRUCTURE BROUGHT ABOUT BY THE REORGANIZATION OF THE
DIRECTORATE FOR MAINTENANCE AT THE TOOELE ARMY DEPOT, TOOELE, UTAH.
MORE SPECIFICALLY, THE IAM SOUGHT TO INCLUDE IN ITS EXISTING UNIT OF
WAGE GRADE EMPLOYEES AT THE ACTIVITY EMPLOYEES OF THE NEWLY FORMED SHOP
SUPPLY DIVISION AND SPECIAL EQUIPMENT BRANCH OF THE ELECTRONICS SHOPS
DIVISION, WHO, PRIOR TO THE REORGANIZATION, WERE REPRESENTED BY BOTH IAM
AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2185, AFL-CIO
(AFGE). THE AFGE AGREED THAT THE UNIT CURRENTLY REPRESENTED BY THE IAM
SHOULD BE CLARIFIED TO INCLUDE THE ABOVE-MENTIONED WAGE GRADE EMPLOYEES,
INCLUDING THOSE PREVIOUSLY REPRESENTED BY THE AFGE WHO NOW ARE LOCATED
IN THE SHOP SUPPLY DIVISION AND THE SPECIAL EQUIPMENT BRANCH OF THE
ELECTRONICS SHOPS DIVISION. THE ACTIVITY CONTENDED THAT THE EXISTING
UNITS AT ITS FACILITY TRADITIONALLY HAD BEEN ESTABLISHED ON A
DIVISION-WIDE BASIS AND THAT BARGAINING AND AGREEMENT ADMINISTRATION AT
A BRANCH LEVEL "WOULD BE CUMBERSOME."
THE ASSISTANT SECRETARY FOUND THAT ALTHOUGH THE EMPLOYEES OF THE SHOP
SUPPLY DIVISION AND SPECIAL EQUIPMENT BRANCH OF THE ELECTRONICS SHOPS
DIVISION HAD BEEN ADMINISTRATIVELY MERGED, THEY HAD NOT BEEN SO
THOROUGHLY COMBINED OR INTEGRATED AS TO CONSTITUTE ACCRETIONS OR
ADDITIONS TO PREVIOUSLY EXISTING UNITS. IN THIS CONNECTION, HE NOTED
THAT THE REORGANIZATION RESULTED ONLY IN LIMITED PHYSICAL RELOCATION OF
THE EMPLOYEES INVOLVED AND DID NOT SUBSTANTIALLY AFFECT THE TERMS AND
CONDITIONS OF THEIR EMPLOYMENT. FURTHER, HE FOUND THAT THE
ADMINISTRATIVE TRANSFER OF THE EMPLOYEES INVOLVED TO A NEW DIVISION DID
NOT RESULT IN THE EMPLOYEES INVOLVED HAVING A COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES IN THE EXISTING UNITS IN
WHICH THEY PREVIOUSLY WERE INCLUDED. ACCORDINGLY, AND NOTING THAT THEIR
CONTINUED INCLUSION IN THE EXISTING UNITS WILL PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY
ORDERED THAT THE CU PETITIONS BE DISMISSED.
DEPARTMENT OF THE ARMY,
TOOELE ARMY DEPOT,
TOOELE, UTAH
AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
TOOELE, FEDERAL LODGE NO. 2261,
AFL-CIO
DEPARTMENT OF THE ARMY,
TOOELE ARMY DEPOT,
TOOELE, UTAH
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2185, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
HIROSHI HIROKAWA. THE HEARING OFFICER'S RULINGS MADE AT THE HEARING ARE
FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASES, THE ASSISTANT SECRETARY
FINDS:
IN CASE NO. 61-2175(CU) THE PETITIONER, THE INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS, TOOELE FEDERAL LODGE NO. 2261,
AFL-CIO, HEREIN CALLED IAM, FILED A PETITION FOR CLARIFICATION OF UNIT
(CU) SEEKING TO CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED BARGAINING
UNIT IN ORDER TO HAVE IT CONFORM TO A NEW ORGANIZATIONAL STRUCTURE
BROUGHT ABOUT BY A REORGANIZATION ON SEPTEMBER 5, 1973, OF THE
DIRECTORATE FOR MAINTENANCE AT THE TOOELE ARMY DEPOT, TOOELE, UTAH.
MORE SPECIFICALLY, THE IAM SEEKS TO INCLUDE IN ITS EXISTING UNIT OF WAGE
GRADE EMPLOYEES AT THE ACTIVITY EMPLOYEES OF THE NEWLY FORMED SHOP
SUPPLY DIVISION AND SPECIAL EQUIPMENT BRANCH OF THE ELECTRONICS SHOPS
DIVISION WHO, PRIOR TO THE REORGANIZATION, WERE REPRESENTED BY BOTH THE
IAM AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2185,
AFL-CIO, HEREIN CALLED AFGE. IN CASE NO. 61-2176(CY) THE PETITIONER,
AFGE, AGREED THAT THE UNIT CURRENTLY REPRESENTED BY THE IAM SHOULD BE
CLARIFIED TO INCLUDE THE ABOVE-NOTED WAGE GRADE EMPLOYEES, INCLUDING
THOSE PREVIOUSLY REPRESENTED BY THE AFGE WHO NOW ARE LOCATED IN THE SHOP
SUPPLY DIVISION AND THE SPECIAL EQUIPMENT BRANCH OF THE ELECTRONICS
SHOPS DIVISION. /1/ THE ACTIVITY CONTENDED THAT THE EXISTING UNITS AT
ITS FACILITY TRADITIONALLY HAD BEEN ESTABLISHED ON A DIVISION-WIDE BASIS
AND THAT BARGAINING AND AGREEMENT ADMINISTRATION AT A BRANCH LEVEL WHICH
WOULD RESULT FROM A CLARIFICATION ACTION HEREIN "WOULD BE CUMBERSOME."
ON JULY 6, 1967, THE IAM WAS GRANTED EXCLUSIVE RECOGNITION FOR A UNIT
OF ALL WAGE GRADE EMPLOYEES OF THE ACTIVITY'S SUPPORT AND MOBILE
EQUIPMENT DIVISION (GENERAL SHOPS) IN THE DIRECTORATE FOR MAINTENANCE.
THEREAFTER, ON FEBRUARY 16, 1968, THE AFGE WAS GRANTED EXCLUSIVE
RECOGNITION IN A UNIT OF WAGE GRADE EMPLOYEES OF THE TOOELE ARMY DEPOT
AND THE RAIL EQUIPMENT DIVISION, EXCLUDING, AMONG OTHERS, EMPLOYEES OF
THE GENERAL SHOPS AND SUPPORT DIVISIONS.
THE EVIDENCE ESTABLISHED THAT THE ACTIVITY IS ORGANIZED INTO SEVEN
DIRECTORATES AND AN AMMUNITION EQUIPMENT OFFICE WHICH HAS DIRECTORATE
STATUS. THE DIRECTORATES ARE: COMPTROLLER, SERVICES, ADMINISTRATION,
SUPPLY, MAINTENANCE, MANAGEMENT INFORMATION SYSTEMS, AND QUALITY
ASSURANCE. EACH DIRECTORATE, EXCEPT THE COMPTROLLER AND THE MANAGEMENT
INFORMATION SYSTEMS DIRECTORATES, HAS WAGE GRADE EMPLOYEES. THE RECORD
REVEALS THAT WITHIN THE DIRECTORATES HAVING WAGE GRADE PERSONNEL THERE
ARE APPROXIMATELY 150 WAGE GRADE OCCUPATIONS.
THE DIRECTORATE FOR MAINTENANCE, WHICH CONTAINS THE BARGAINING UNITS
ALLEGEDLY AFFECTED BY THE REORGANIZATION, EMPLOYS APPROXIMATELY 1,861
EMPLOYEES. ITS MISSION IS TO PLAN, IMPLEMENT, DIRECT, COORDINATE, AND
REVIEW THE REPAIR, RECONDITIONING, OVERHAUL, REBUILDING, MODIFICATION,
CONVERSION, AND TESTING OF AUTOMOTIVE EQUIPMENT, COMBAT VEHICLES,
CONSTRUCTION EQUIPMENT, MISSILES SYSTEMS, ARMAMENT, RAIL EQUIPMENT,
GENERAL EQUIPMENT, TOPOGRAPHIC EQUIPMENT, REPRODUCTION EQUIPMENT, AND
ASSIGNED COMMODITY GROUPS. PRIOR TO THE SEPTEMBER 5, 1973,
REORGANIZATION /2/ THE DIRECTORATE FOR MAINTENANCE WAS COMPOSED OF FIVE
DIVISIONS: PRODUCTION CONTROL, MISSILES, SUPPORT, GENERAL SHOPS, AND
RAIL EQUIPMENT. AS NOTED ABOVE, THE AFGE REPRESENTED THE WAGE GRADE
EMPLOYEES IN THE MISSILES AND RAIL EQUIPMENT DIVISIONS AND THE IAM
REPRESENTED THE WAGE GRADE EMPLOYEES IN THE SUPPORT AND GENERAL SHOPS
DIVISIONS. /3/
THE EVIDENCE ESTABLISHES THAT FOLLOWING THE REORGANIZATION, THE
DIRECTORATE FOR MAINTENANCE WAS COMPOSED OF SIX DIVISIONS: PRODUCTION
PLANNING AND CONTROL, SUPPORT, ELECTRONICS SHOPS, GENERAL SHOPS, SHOP
SUPPLY, AND RAIL SHOPS. IN THIS REGARD, THE FUNCTIONS OF THE FOLLOWING
BRANCHES OR SECTIONS WERE COMBINED IN ORDER TO FORM THE NEWLY
ESTABLISHED SHOP SUPPLY DIVISION: THE SUPPLY BRANCHES OF THE SUPPORT
AND GENERAL SHOPS DIVISIONS (WAGE GRADE EMPLOYEES REPRESENTED BY THE
IAM), THE SUPPLY SECTION IN THE MISSILES SYSTEMS ENGINEERING BRANCH OF
THE MISSILES DIVISION (WAGE GRADE EMPLOYEES REPRESENTED BY THE AFGE),
AND THE MATERIAL MOVEMENT FUNCTION OF THE MATERIAL MOVEMENT SECTION,
METAL FINISHING BRANCH OF THE SUPPORT DIVISION (WAGE GRADE EMPLOYEES
REPRESENTED BY THE IAM). THE ESTABLISHMENT OF THE SHOP SUPPLY DIVISION
INVOLVED THE ADMINISTRATIVE REASSIGNMENT OF 61 EMPLOYEES REPRESENTED BY
THE IAM AND THE ADMINISTRATIVE REASSIGNMENT OF 6 EMPLOYEES REPRESENTED
BY THE AFGE. THE EVIDENCE ESTABLISHES THAT THESE REASSIGNED EMPLOYEES
CONTINUED IN THE SAME JOB CLASSIFICATIONS AND PERFORMED THE SAME DUTIES
AS BEFORE THE REORGANIZATION. FURTHER, EXCEPT FOR THOSE EMPLOYEES IN
THE PROPERTY AND TOOL ROOM BRANCH, WHO MOVED FROM ONE BUILDING TO
ANOTHER, THERE WAS NO PHYSICAL CHANGE OF LOCATION BY ANY EMPLOYEES. /4/
THE RECORD ALSO REVEALS THAT WHILE THE REPORTING CHANNELS FOR THOSE IN
THE SUPPLY SHOP ARE NOW DIFFERENT, THERE ARE FEW CHANGES IN THE
IMMEDIATE SUPERVISION OF THE EMPLOYEES INVOLVED.
WITH REGARD TO THE EFFECT OF THE REORGANIZATION ON WAGE GRADE
EMPLOYEES ASSIGNED TO THE SPECIAL EQUIPMENT BRANCH OF THE NEWLY
ESTABLISHED ELECTRONICS SHOPS DIVISION, THE RECORD DISCLOSES THAT PRIOR
TO THE REORGANIZATION THESE EMPLOYEES WERE ASSIGNED TO THE ARMAMENT
BRANCH OF THE GENERAL SHOPS DIVISION AND THE GAS TURBINE SECTION, GUIDED
MISSILE BRANCH OF THE MISSILES DIVISION. APPROXIMATELY 80
NONSUPERVISORY WAGE GRADE EMPLOYEES FROM THE IAM AND AFGE UNITS WERE
REASSIGNED ADMINISTRATIVELY TO THE SPECIAL EQUIPMENT BRANCH IN THE
ELECTRONICS SHOPS DIVISION. THE EVIDENCE ESTABLISHES THAT THE EMPLOYEES
INVOLVED REMAINED IN THE SAME JOB CLASSIFICATIONS, PERFORMING THE SAME
DUTIES, AND, FOR THE MOST PART, WORKED AT THE SAME FACILITY OR LOCATION,
UNDER THE SAME IMMEDIATE SUPERVISION.
IN PRIOR DECISIONS, /5/ IT HAS BEEN INDICATED THAT IN DECIDING
MATTERS INVOLVING REORGANIZATIONS, THE ASSISTANT SECRETARY WILL CONSIDER
THE ACTUAL IMPACT ON EMPLOYEES RESULTING FROM SUCH REORGANIZATIONS. THE
RECORD INDICATES THAT THE REORGANIZATION HEREIN HAS RESULTED IN ONLY
LIMITED PHYSICAL RELOCATION OF THE EMPLOYEES INVOLVED AND HAS NOT
SUBSTANTIALLY AFFECTED THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT.
THUS, THE RECORD DISCLOSES THAT THE REORGANIZED EMPLOYEES ARE STILL
ENGAGED IN THE SAME DUTIES, ARE EMPLOYED IN THE SAME JOB
CLASSIFICATIONS, AND ARE WORKING ESSENTIALLY AT THE SAME LOCATIONS UNDER
THE SAME IMMEDIATE SUPERVISION AS PRIOR TO THE REORGANIZATION. AND,
ALTHOUGH IN SOME CASES THEY HAVE BEEN ADMINISTRATIVELY MERGED, THEY HAVE
NOT BEEN SO THOROUGHLY COMBINED OR INTEGRATED SO AS TO CONSTITUTE
ACCRETIONS OR ADDITIONS TO PREVIOUSLY EXISTING UNITS.
ACCORDINGLY, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I FIND
THAT THE EMPLOYEES OF THE SHOP SUPPLY DIVISION AND THE SPECIAL EQUIPMENT
BRANCH OF THE ELECTRONICS SHOPS DIVISION CONTINUE, AFTER THE
REORGANIZATION, TO SHARE A COMMUNITY OF INTEREST WITH EMPLOYEES OF THE
EXISTING EXCLUSIVELY RECOGNIZED UNITS AT THE TOOELE ARMY DEPOT
REPRESENTED BY THE IAM AND THE AFGE. ALTHOUGH THE EMPLOYEES OF THE SHOP
SUPPLY DIVISION AND SPECIAL EQUIPMENT BRANCH HAVE BEEN TRANSFERRED
ADMINISTRATIVELY TO A NEW DIVISION, I FIND THAT SUCH ACTION IS
INSUFFICIENT TO ESTABLISH THAT SHOP SUPPLY AND SPECIAL EQUIPMENT BRANCH
EMPLOYEES, AS A RESULT OF THE REORGANIZATION, ENJOY A COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES IN THE EXISTING
UNITS IN WHICH THEY PREVIOUSLY WERE INCLUDED. MOREOVER, I FIND THAT IN
THESE CIRCUMSTANCES THEIR CONTINUED INCLUSION IN THE EXISTING UNITS WILL
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL ORDER THAT THE INSTANT PETITIONS BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITIONS IN CASES NOS. 61-2175(CU) AND
61-2176(CU) BE, AND THEY HEREBY ARE, DISMISSED.
DATED, WASHINGTON, D.C.
MAY 15, 1974
/1/ THE IAM AND THE AFGE EXPRESSED A DESIRE TO BE TREATED AS "JOINT
PETITIONERS" IN THIS MATTER.
/2/ ACCORDING TO THE ACTIVITY, THE DEPOT IS UNDERGOING A PERIOD OF
PROLONGED REORGANIZATION AND REALIGNMENT DUE TO A DECLINING WORK FORCE
AND THE DEPOT'S CHANGING ENVIRONMENT.
/3/ GENERAL SCHEDULE EMPLOYEES IN THE PRODUCTION CONTROL DIVISION
WERE UNREPRESENTED.
/4/ ALTHOUGH EMPLOYEES OF THE PROPERTY AND TOOL ROOM BRANCH MOVED
PHYSICALLY THEY WERE NOT MOVED NEAR TO OR INTEGRATED WITH ANY OTHER
PARTICULAR BRANCH, BUT OCCUPIED ONE AREA EXCLUSIVELY.
/5/ ARMY AND AIR FORCE EXCHANGE SERVICE, KIRTLAND AIR FORCE BASE
EXCHANGE, A/SLMR NO. 371; DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY
DISPOSAL OFFICE, ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO.
360; DEPARTMENT OF THE ARMY, STRATEGIC COMMUNICATIONS COMMAND, FORT
HUACHUCA, ARIZONA, A/SLMR NO. 351; DEPARTMENT OF THE ARMY,
HEADQUARTERS, U.S. ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD,
FORT LEONARD WOOD, MISSOURI, A/SLMR NO. 328; AND AMC AMMUNITION CENTER,
SAVANNA, ILLINOIS, A/SLMR NO. 291.
4 A/SLMR 388; P. 309; CASE NO. 72-3811(CA); MAY 15, 1974.
VETERANS ADMINISTRATION,
WADSWORTH HOSPITAL CENTER,
LOS ANGELES, CALIFORNIA
A/SLMR NO. 388
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061 (COMPLAINANT)
AGAINST THE VETERANS ADMINISTRATION, WADSWORTH HOSPITAL CENTER, LOS
ANGELES, CALIFORNIA (RESPONDENT). THE COMPLAINANT ALLEGED, IN
SUBSTANCE, THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) OF THE
EXECUTIVE ORDER BY DETERMINING TO CLOSE DOWN PART OF THE WADSWORTH
HOSPITAL CENTER WITHOUT PRIOR CONSULTATION WITH THE COMPLAINANT AND BY
FAILING TO CONSULT REGARDING THE TRANSFER OF PATIENTS, EMPLOYEES, AND
HOSPITAL FUNCTIONS.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF ALL THE
ALLEGATIONS AGAINST THE RESPONDENT. HE FOUND THAT CERTAIN DECISIONS
MADE BY THE RESPONDENT WITHOUT CONSULTATION WITH THE COMPLAINANT PRIOR
TO THEIR PUBLIC ANNOUNCEMENT WERE OF THE TYPE THAT SECTIONS 11(B) AND
12(B) OF THE ORDER INTENDED TO EXEMPT FROM THE "MEET AND CONFER"
REQUIREMENTS OF SECTION 11(A). FURTHER, WITH REGARD TO THOSE DECISIONS
PUBLICLY ANNOUNCED BY THE RESPONDENT PERTAINING TO IMPLEMENTATION AND
IMPACT, WHICH THE ADMINISTRATIVE LAW JUDGE FOUND TO REQUIRE CONSULTATION
OR NEGOTIATION, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT NO FINAL
STEPS HAD BEEN TAKEN WHICH IRREVOCABLY COMMITTED THE RESPONDENT TO SUCH
POLICIES; THEIR IMPLEMENTATION AND IMPACT WERE DISCUSSED WITH THE
COMPLAINANT LATER ON THE DAY OF ANNOUNCEMENT, AND THEREAFTER, DURING A
SERIES OF WEEKLY AND TWICE-WEEKLY MEETINGS; AND NO EVIDENCE WAS
INTRODUCED TO ESTABLISH THAT THE COMPLAINANT OBJECTED TO THE
RESPONDENT'S DECISIONS.
WITH RESPECT TO THE ALLEGED ISSUANCE OF A QUESTIONNAIRE TO EMPLOYEES
WITHOUT PRIOR CONSULTATION WITH THE COMPLAINANT, THE ADMINISTRATIVE LAW
JUDGE FOUND THAT SUCH CONDUCT WAS CLEARLY INADVERTENT AND "COULD HARDLY
BE CONCLUDED TO BE AN ATTEMPT TO BYPASS THE UNION AND TO AVOID
COLLECTIVE BARGAINING OBLIGATIONS" IN VIOLATION OF THE ORDER. IN THIS
REGARD, HE NOTED THAT THE COMPLAINANT PRESUMABLY HAD APPROVED THE
ISSUANCE OF A PREVIOUS QUESTIONNAIRE WHICH WAS ISSUED TO SOLICIT
INFORMATION SIMILAR TO THAT SOUGHT BY THE SECOND QUESTIONNAIRE, HAD
DISCUSSED AND APPROVED OTHER COMMUNICATIONS WHICH WERE ISSUED DIRECTLY
TO EMPLOYEES, AND HAD NEVER OBJECTED IN PRINCIPLE TO SUCH
COMMUNICATIONS. MOREOVER, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
COMPLAINANT HAD NOT SPECIFICALLY CONTENDED THAT THE SECOND QUESTIONNAIRE
WAS AN ATTEMPT BY THE RESPONDENT TO BYPASS THE EXCLUSIVE REPRESENTATIVE
AND COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION THAT ALL OF THE ALLEGATIONS AGAINST THE RESPONDENT BE
DISMISSED EXCEPT WITH REGARD TO THE RESPONDENT'S ALLEGED IMPROPER
FAILURE TO MEET AND CONFER WITH THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE
PRIOR TO THE ISSUANCE OF A SECOND QUESTIONNAIRE TO EMPLOYEES. IN THIS
LATTER REGARD, THE ASSISTANT SECRETARY FOUND THE RECORD CLEAR THAT THE
COMPLAINANT WAS NOT AFFORDED AN OPPORTUNITY TO COMMENT ON THE FORM AND
CONTENT OF THE SECOND QUESTIONNAIRE BECAUSE, AS TESTIFIED TO BY THE
PERSONNEL OFFICER OF THE HOSPITAL CENTER, THE RESPONDENT "SIMPLY COULD
NOT FIND THE TIME TO SIT DOWN AND CONSULT" WITH THE COMPLAINANT
REGARDING THE SECOND QUESTIONNAIRE PRIOR TO ITS ISSUANCE. MOREOVER, THE
ASSISTANT SECRETARY FOUND THAT THE RESPONDENT MADE NO ATTEMPT EITHER
PRIOR TO THE ISSUANCE OF THE SECOND QUESTIONNAIRE OR IMMEDIATELY
THEREAFTER TO COMMUNICATE WITH THE COMPLAINANT CONCERNING THE ALLEGED
NEED FOR THE ISSUANCE OR PRESENTED ANY EVIDENCE OF ANY OVERRIDING
EXIGENCY WHICH PRECLUDED THE RESPONDENT FROM AFFORDING THE COMPLAINANT
NOTICE AND AN OPPORTUNITY TO MEET AND CONFER REGARDING THE MATTERS
CONTAINED IN THE SECOND QUESTIONNAIRE WHICH, IN HIS VIEW, INVOLVED
PERSONNEL POLICIES AND PRACTICES AND CONCERNED MATTERS AFFECTING WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER.
UNDER THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED, CONTRARY
TO THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S UNILATERAL
CONDUCT WITH RESPECT TO THE SECOND QUESTIONNAIRE CONSTITUTED AN IMPROPER
BYPASS AND UNDERMINING OF THE STATUS OF ITS EMPLOYEES' EXCLUSIVE
REPRESENTATIVE AND, THEREFORE, WAS VIOLATIVE OF SECTION 19(A)( 6) 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.
VETERANS ADMINISTRATION,
WADSWORTH HOSPITAL CENTER,
LOS ANGELES, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1061
ON DECEMBER 20, 1973, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
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 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 OF THE ADMINISTRATIVE LAW
JUDGE ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S REPORT AND RECOMMENDATION, THE EXCEPTIONS AND SUPPORTING BRIEF
FILED BY THE COMPLAINANT, THE ANSWERING BRIEF FILED BY THE RESPONDENT,
AND THE ENTIRE RECORD OF THE SUBJECT CASE, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS,
EXCEPT AS MODIFIED BELOW. /1/
THE SUBJECT COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE VETERANS
ADMINISTRATION, WADSWORTH HOSPITAL CENTER VIOLATED SECTION 19(A)(1) AND
(6) OF THE ORDER BY DETERMINING TO CLOSE DOWN PART OF THE WADSWORTH
HOSPITAL CENTER WITHOUT PRIOR CONSULTATION WITH THE COMPLAINANT AND BY
FAILING TO CONSULT REGARDING THE TRANSFER OF PATIENTS, EMPLOYEES, AND
HOSPITAL FUNCTIONS.
THE EVIDENCE ESTABLISHES THAT BETWEEN JANUARY 14, 1972, /2/ AND APRIL
21, 1972, THERE WERE APPROXIMATELY 13 FORMAL AND NUMEROUS INFORMAL
MEETINGS BETWEEN THE RESPONDENT AND THE COMPLAINANT CONCERNING THE
EFFECTS ON EMPLOYEES OF THE DECISION TO CLOSE PORTIONS OF THE CENTER,
AND THE RESULTING NECESSITY TO RELOCATE PATIENTS. IN THIS REGARD, THE
RECORD REVEALS THAT AT A FORMAL MEETING HELD IN THE MORNING OF JANUARY
18, 1972, THE RESPONDENT ANNOUNCED TO THE COMPLAINANT THAT
QUESTIONNAIRES WOULD BE HANDED OUT TO ALL PERSONNEL REGARDING THEIR
AVAILABILITY FOR TRANSFER TO OTHER STATIONS. FURTHER, THE RECORD
INDICATES THAT AT OTHER FORMAL MEETING HELD IN THE AFTERNOON OF JANUARY
18, 1972, A PROPOSED QUESTIONNAIRE WAS SHOWN TO THE COMPLAINANT AND
DISCUSSED. THE PURPOSE OF THE QUESTIONNAIRE WAS TO SOLICIT FROM
EMPLOYEES WHETHER OR NOT THEY WISHED TO CONTINUE THEIR EMPLOYMENT WITH
THE VETERANS ADMINISTRATION, THEIR JOB AND LOCATION PREFERENCES, THE
LOWEST GRADE AND SALARY THEY WOULD CONSIDER, OR WHETHER THEY PLANNED TO
RETIRE. THE COMPLAINANT MADE A SUGGESTION CONCERNING TO WHOM THIS
QUESTIONNAIRE SHOULD BE SENT, WHICH WAS ACCEPTED, AND IT WAS ISSUED
ACCORDINGLY. /3/
SHORTLY THEREAFTER, A SECOND QUESTIONNAIRE DATED JANUARY 21, 1972,
WITH THE SAME RETURN DATE AS THE INITIAL QUESTIONNAIRE, WAS ISSUED BY
THE RESPONDENT TO EMPLOYEES WITHOUT FIRST BEING SHOWN TO THE
COMPLAINANT. /4/
UNLIKE THE FIRST QUESTIONNAIRE, THE SECOND WAS PRINTED ON THE REVERSE
SIDE OF AN EXPLANATORY LETTER ADDRESSED TO "SELECTED EMPLOYEES--
EXTENDED CARE, WADSWORTH, AND BRENTWOOD HOSPITALS" AND HAD AS AN
ATTACHMENT A "STAFFING NEEDS" PAGE LISTING PATIENT RECEIVING STATIONS
WITH THEIR SPECIFIC STAFFING REQUIREMENTS BY JOB TITLE. WHILE THE FIRST
QUESTIONNAIRE HAD SOLICITED DESIRED PREFERENCES, THE SECOND
QUESTIONNAIRE REQUESTED THAT THE EMPLOYEES SPECIFICALLY COMMIT
THEMSELVES AS TO WHETHER OR NOT THEY WOULD "ACCEPT TRANSFER" TO ANY OF
THE LISTED STATIONS AND, IF SO, WHAT THEIR TOP THREE "LOCATION
PREFERENCES" WERE. IT ALSO REQUESTED INFORMATION CONCERNING THE
"EARLIEST DATE" EMPLOYEES COULD TRANSFER AND WHETHER THEY WOULD "ACCEPT
A DETAIL" TO THEIR TRANSFER LOCATION PREFERENCES. SIMILAR TO THE FIRST
QUESTIONNAIRE, THE SECOND CONTAINED SPACE FOR THE INDIVIDUAL EMPLOYEE'S
PRINTED NAME AND SIGNATURE. THE EVIDENCE ESTABLISHES THAT AT THE
PARTIES' NEXT FORMAL MEETING ON FEBRUARY 1, 1972, FOLLOWING THE ISSUANCE
OF THE SECOND QUESTIONNAIRE, THE COMPLAINANT SPECIFICALLY OBJECTED TO
ITS ISSUANCE TO EMPLOYEES WITHOUT PRIOR CONSULTATION.
WITH RESPECT TO THE ISSUANCE OF THE SECOND QUESTIONNAIRE, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED, AMONG OTHER THINGS, THAT SUCH
CONDUCT WAS CLEARLY INADVERTENT AND "COULD HARDLY BE CONCLUDED TO BE AN
ATTEMPT TO BYPASS THE UNION AND TO AVOID COLLECTIVE BARGAINING
OBLIGATIONS" IN VIOLATION OF SECTION 19(A)( 6) OF THE ORDER. THE
ADMINISTRATIVE LAW JUDGE NOTED ALSO THAT THE COMPLAINANT PRESUMABLY HAD
APPROVED THE ISSUANCE OF THE FIRST QUESTIONNAIRE WHICH WAS ISSUED TO
SOLICIT INFORMATION SIMILAR TO THAT SOUGHT BY THE SECOND QUESTIONNAIRE,
HAD DISCUSSED AND APPROVED OTHER COMMUNICATIONS WHICH WERE ISSUED
DIRECTLY TO EMPLOYEES, AND HAD NEVER OBJECTED IN PRINCIPLE TO SUCH
COMMUNICATIONS. MOREOVER, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
COMPLAINANT HAD NOT SPECIFICALLY CONTENDED THAT THE SECOND QUESTIONNAIRE
WAS AN ATTEMPT BY THE RESPONDENT TO BYPASS THE EXCLUSIVE REPRESENTATIVE
AND COMMUNICATE DIRECTLY WITH UNIT EMPLOYEES.
IN MY VIEW, THE ALLEGATIONS CONTAINED IN THE INSTANT COMPLAINT
PERTAINING TO THE RESPONDENT'S ALLEGED FAILURE TO "CONSULT REGARDING THE
TRANSFER OF PATIENTS, EMPLOYEES AND HOSPITAL FUNCTIONS" ARE SUFFICIENTLY
BROAD TO ENCOMPASS THE ALLEGED IMPROPER FAILURE BY THE RESPONDENT TO
MEET AND CONFER WITH ITS EMPLOYEES' EXCLUSIVE REPRESENTATIVE PRIOR TO
THE ISSUANCE OF THE SECOND QUESTIONNAIRE. AND, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, I FIND THAT THE RESPONDENT'S UNILATERAL
CONDUCT IN THIS CONNECTION WAS VIOLATIVE OF THE ORDER. THE RECORD IS
CLEAR THAT PRIOR TO THE ISSUANCE OF THE SECOND QUESTIONNAIRE THE
RESPONDENT PROPERLY HAD SHOWN THE COMPLAINANT AN INITIAL QUESTIONNAIRE
AS WELL AS OTHER LETTERS AND COMMUNICATIONS TO BE SENT UNIT EMPLOYEES
CONCERNING THE CHANGE IN OPERATIONS AND HAD SOLICITED THE COMPLAINANT'S
VIEWS AS TO FORMAT AND CONTENT PRIOR TO ANY DISTRIBUTIONS. THE RECORD
ALSO IS CLEAR THAT THE COMPLAINANT WAS NOT AFFORDED A SIMILAR
OPPORTUNITY WITH REGARD TO THE SECOND QUESTIONNAIRE BECAUSE, AS
TESTIFIED TO BY THE PERSONNEL OFFICER OF THE CENTER, THE RESPONDENT
"SIMPLY COULD NOT FIND THE TIME TO SIT DOWN AND CONSULT" WITH THE
COMPLAINANT REGARDING THE SECOND QUESTIONNAIRE PRIOR TO ITS ISSUANCE.
IN THIS LATTER REGARD, HOWEVER, THERE IS NO EVIDENCE OF ANY
OVERRIDING EXIGENCY WHICH PRECLUDED THE RESPONDENT FROM AFFORDING THE
COMPLAINANT NOTICE AND AN OPPORTUNITY TO MEET AND CONFER REGARDING THE
MATTERS CONTAINED IN THE SECOND QUESTIONNAIRE. MOREOVER, THE RESPONDENT
MADE NO ATTEMPT, EITHER PRIOR TO THE ISSUANCE OF THE SECOND
QUESTIONNAIRE OR IMMEDIATELY THEREAFTER, TO COMMUNICATE WITH THE
COMPLAINANT CONCERNING THE ALLEGED NEED FOR THE ISSUANCE OF THE
QUESTIONNAIRE WITHOUT FIRST MEETING AND CONFERRING WITH THE COMPLAINANT.
NOR WAS THE COMPLAINANT'S APPROVAL OF THE ISSUANCE OF THE FIRST
QUESTIONNAIRE AND ITS ACCEPTANCE, WITHOUT OBJECTION, OF OTHER
COMMUNICATIONS BY THE RESPONDENT TO BARGAINING UNIT EMPLOYEES CONSIDERED
TO ESTOP THE COMPLAINANT IN THIS REGARD. THUS, WHILE, IN GENERAL, BOTH
QUESTIONNAIRES SOLICITED SIMILAR INFORMATION, THEY CLEARLY PLACED
DIFFERING BURDENS ON THE SOLICITED EMPLOYEES. UNLIKE THE FIRST
QUESTIONNAIRE WHICH SOUGHT THE DESIRED PREFERENCES OF EMPLOYEES, THE
SECOND QUESTIONNAIRE SPECIFICALLY REQUIRED THE EMPLOYEES AFFECTED TO
COMMIT THEMSELVES AS TO WHETHER OR NOT THEY WOULD "ACCEPT TRANSFER" AT
THEIR LOCATION PREFERENCE AS OF A SPECIFIC TIME OR WOULD "ACCEPT A
DETAIL." UNDER THESE CIRCUMSTANCES, I FIND THAT THE COMPLAINANT'S
CONDUCT WITH RESPECT TO THE FIRST QUESTIONNAIRE AND WITH RESPECT TO
OTHER COMMUNICATIONS BY THE RESPONDENT DID NOT ESTOP THE COMPLAINANT
FROM ASSERTING ITS RIGHT UNDER THE ORDER TO BE AFFORDED NOTICE AND AN
OPPORTUNITY TO MEET AND CONFER REGARDING THE MATTERS CONTAINED IN THE
SECOND QUESTIONNAIRE WHICH, IN MY VIEW, INVOLVED PERSONNEL POLICIES AND
PRACTICES AND CONCERNED MATTERS AFFECTING WORKING CONDITIONS WITHIN THE
MEANING OF SECTION 11(A) OF THE ORDER.
ACCORDINGLY, I CONCLUDE THAT THE ABOVE-DESCRIBED CONDUCT BY THE
RESPONDENT CONSTITUTED AN IMPROPER BYPASS AND UNDERMINING OF THE STATUS
OF ITS EMPLOYEES' EXCLUSIVE REPRESENTATIVE AND, THEREFORE, WAS VIOLATIVE
OF THE ORDER. /5/ 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. /6/
HAVING FOUND THAT THE RESPONDENT /7/ 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 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, WADSWORTH HOSPITAL CENTER, LOS ANGELES, CALIFORNIA,
SHALL:
1. CEASE AND DESIST FROM:
(A) SOLICITING A COMMITMENT FROM EMPLOYEES REPRESENTED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, THROUGH A QUESTIONNAIRE, AS TO WHETHER OR NOT
THEY WOULD ACCEPT REASSIGNMENT OR DETAIL WITHOUT FIRST NOTIFYING LOCAL
1061, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER REGARDING THE MATTERS CONTAINED IN SUCH
QUESTIONNAIRE INSOFAR AS SUCH MATTERS INVOLVE PERSONNEL POLICIES AND
PRACTICES AND AFFECT WORKING CONDITIONS.
(B) 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 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY PROPOSED ATTEMPT TO
SOLICIT A COMMITMENT FROM UNIT EMPLOYEES, THROUGH A QUESTIONNAIRE, AS TO
WHETHER OR NOT THEY WOULD ACCEPT REASSIGNMENT OR DETAIL, AND, UPON
REQUEST, MEET AND CONFER IN GOOD FAITH WITH SUCH REPRESENTATIVE
REGARDING THE MATTERS CONTAINED IN SAID QUESTIONNAIRE INSOFAR AS SUCH
MATTERS INVOLVE PERSONNEL POLICIES AND PRACTICES AND AFFECT WORKING
CONDITIONS.
(B) POST AT ITS FACILITY AT WADSWORTH HOSPITAL CENTER, LOS ANGELES,
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
DIRECTOR OF THE WADSWORTH HOSPITAL CENTER 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.
(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
ADDITIONAL VIOLATIONS OF SECTION 19(A)(1) AND (6) BE, AND IT HEREBY IS,
DISMISSED.
DATED WASHINGTON, D.C.
MAY 15, 1974
/1/ ON PAGE FOUR OF HIS REPORT AND RECOMMENDATIONS, THE
ADMINISTRATIVE LAW JUDGE INADVERTENTLY NOTED THAT THE JANUARY 14, 1972,
ANNOUNCEMENT REGARDING THE CLOSING OF PORTIONS OF THE WADSWORTH HOSPITAL
CENTER WAS MADE SIMULTANEOUSLY AT 1:00 P.M. PST IN CALIFORNIA AND 10:00
A.M. EST IN WASHINGTON, D.C., RATHER THAN AT 10:00 A.M. PST AND 1:00
P.M. EST, RESPECTIVELY. THIS INADVERTENCY IS HEREBY CORRECTED.
/2/ ON JANUARY 14, 1972, THE VETERANS ADMINISTRATION ANNOUNCED ITS
INTENTION TO CLOSE DOWN A NUMBER OF BUILDINGS IN ITS CALIFORNIA HOSPITAL
SYSTEM BASED ON THE RECOMMENDATIONS OF A SPECIAL COMMITTEE OF SEISMIC
EXPERTS APPOINTED BY THE ADMINISTRATOR OF VETERANS AFFAIRS. IN THIS
CONNECTION, IT WAS EXPECTED THAT WITHIN TWO WEEKS A NUMBER OF PATIENTS
AT THE CENTER WERE TO BE TRANSFERRED TO OTHER STATIONS. THE FIRST
FORMAL MEETING BETWEEN THE RESPONDENT AND THE COMPLAINANT TO DISCUSS THE
ANNOUNCEMENT, ITS IMPLEMENTATION, AND ITS EFFECT ON EMPLOYEES WAS HELD
ON JANUARY 14, 1972, FOLLOWING THE ABOVE-NOTED ANNOUNCEMENT MADE EARLIER
THAT DAY.
/3/ THIS QUESTIONNAIRE WAS DATED WEDNESDAY, JANUARY 19, 1972, AND IT
CONTAINED INSTRUCTIONS THAT IT WAS TO BE RETURNED NO LATER THAN MONDAY,
JANUARY 24, 1972.
/4/ THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE CREDIBLE EVIDENCE
INDICATED THAT THE SECOND QUESTIONNAIRE WAS ISSUED PRIOR TO SHOWING IT
TO THE COMPLAINANT. MOREOVER, THE RESPONDENT, IN ITS ANSWERING BRIEF,
CONCEDED THAT THE SECOND QUESTIONNAIRE HAD NOT BEEN DISCUSSED WITH THE
COMPLAINANT PRIOR TO ITS ISSUANCE.
/5/ CF. VETERANS ADMINISTRATION, VETERANS ADMINISTRATION CENTER,
HAMPTON, VIRGINIA, A/SLMR NO. 385; 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.
/6/ SEE, IN THIS REGARD, U.S. DEPARTMENT OF INTERIOR, BUREAU OF
INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO,
A/SLMR NO. 341.
/7/ THE ADMINISTRATIVE LAW JUDGE FOUND THAT, UNDER THE CIRCUMSTANCES,
THE VETERANS ADMINISTRATIONS CENTRAL OFFICE IN WASHINGTON, D.C., WAS THE
RESPONDENT IN THIS MATTER. HOWEVER, IT IS CLEAR THAT ANY BARGAINING
OBLIGATION OWED TO THE COMPLAINANT HEREIN STEMMED FROM THE RECOGNITION
ACCORDED IT BY THE VETERANS ADMINISTRATION'S FACILITY AT WADSWORTH
HOSPITAL CENTER, IN LOS ANGELES, CALIFORNIA. ACCORDINGLY, AND NOTING
THAT THE WADSWORTH HOSPITAL CENTER WAS APPROPRIATELY NAMED AS RESPONDENT
ON THE COMPLAINT FORM AND WAS ON NOTICE OF THE ALLEGATIONS CONTAINED
HEREIN, IT WAS CONCLUDED THAT THE REMEDIAL ORDER HEREIN, BASED ON THE
FAILURE OF THE WADSWORTH HOSPITAL CENTER TO ACT IN ACCORDANCE WITH ITS
OBLIGATIONS SET FORTH IN SECTION 11(A) OF THE ORDER, SHOULD RUN SOLELY
AGAINST THE WADSWORTH HOSPITAL CENTER.
WE WILL NOT SOLICIT A COMMITMENT FROM EMPLOYEES REPRESENTED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, THROUGH A QUESTIONNAIRE, AS TO WHETHER OR NOT
THEY WOULD ACCEPT REASSIGNMENT OR DETAIL WITHOUT FIRST NOTIFYING
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER REGARDING THE MATTERS CONTAINED IN SUCH
QUESTIONNAIRE INSOFAR A S SUCH MATTERS INVOLVE PERSONNEL POLICIES AND
PRACTICES AND AFFECT 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 AND 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES OF THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
WHOSE ADDRESS: ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN GATE
AVE., SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
VETERANS ADMINISTRATION
WADSWORTH HOSPITAL CENTER
LOS ANGELES, CALIFORNIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL UNION 1061
STEPHEN L. SHOCHET, ESQ.
OFFICE OF THE GENERAL COUNSEL
VETERANS ADMINISTRATION
810 VERMONT AVENUE
WASHINGTON, D.C. 20420
AND
LEON M. CORNFELD, DIRECTOR
EMPLOYEE MANAGEMENT RELATIONS SERVICE
VETERANS ADMINISTRATION
810 VERMONT AVENUE
WASHINGTON, D.C. 20420
DOLPH DAVID SAND, ESQ.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
THE PROCEEDING HEREIN AROSE UNDER EXECUTIVE ORDER 11491 (HEREIN
CALLED THE ORDER) PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON
MARCH 12, 1973 BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, SAN
FRANCISCO, CALIFORNIA.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL UNION 1061 (HEREIN
CALLED VARIOUSLY COMPLAINANT, LOCAL 1061, UNION, OR AFGE) INITIATED THE
MATTER BY FILING A COMPLAINT ON SEPTEMBER 5, 1972, AGAINST THE VETERANS
ADMINISTRATION, WADSWORTH HOSPITAL CENTER, (HEREIN VARIOUSLY CALLED
RESPONDENT, ACTIVITY OR VA). THE COMPLAINT ALLEGES THAT RESPONDENT
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY DETERMINING TO CLOSE
DOWN PART OF THE WADSWORTH HOSPITAL CENTER WITHOUT PRIOR CONSULTATION
WITH THE UNION AND BY FAILING TO CONSULT THE UNION REGARDING THE
TRANSFER OF PATIENTS, EMPLOYEES, AND HOSPITAL FUNCTIONS.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON JUNE 6 AND 7, 1973 AT
LOS ANGELES, CALIFORNIA. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND
WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, AND TO
EXAMINE AND CROSS-EXAMINE WITNESSES. BOTH PARTIES PRESENTED ORAL
ARGUMENT AT THE CLOSE OF THE HEARING AND WERE AFFORDED AN OPPORTUNITY TO
FILE BRIEFS. THE ACTIVITY FILED SUCH A BRIEF, AFGE DID NOT.
UPON THE ENTIRE RECORD, IN THIS CASE, FROM HIS OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL THE EVIDENCE ADDUCED AT THE
HEARING, THE UNDERSIGNED MAKES THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDATION:
BACKGROUND
IN FEBRUARY 1971 AN EARTHQUAKE IN CALIFORNIA SEVERELY DAMAGED THE
VETERAN'S ADMINISTRATION HOSPITAL IN SAN FERNANDO, RESULTING IN LOSS OF
LIFE. AS A RESULT THE VA INITIATED A STUDY OF ALL ITS WEST COAST
FACILITIES TO DETERMINE WHETHER THEY COULD RESIST SUBSTANTIAL DAMAGE IN
THE EVENT OF AN EARTHQUAKE. A NUMBER OF SPECIALIZED COMMITTEES WERE
ESTABLISHED AND THEY PERFORMED STUDIES AND EVALUATED INFORMATION FROM
APRIL 1971 THROUGH THE REMAINDER OF THE YEAR. NO LABOR ORGANIZATION WAS
CONSULTED OR REPRESENTED ON ANY OF THESE COMMITTEES.
PRIOR TO JANUARY 14, 1972, THERE EXISTED A VA HOSPITAL COMPLEX ON 578
ACRES IN WEST LOS ANGELES (REFERRED TO HEREIN, VARIOUSLY, AS THE WEST
LOS ANGELES COMPLEX, OR THE WADSWORTH HOSPITAL CENTER). THIS COMPLEX
CONSISTED PRIMARILY OF THREE MAJOR FACILITIES AND CERTAIN SUPPORT
BUILDINGS. THE THREE FACILITIES WERE, THE BRENTWOOD HOSPITAL, A MENTAL
AND PSYCHIATRIC HOSPITAL; THE DOMICILIARY FACILITY, /1/ AN INSTITUTION
WHERE PATIENTS WHO NEEDED A LIMITED AMOUNT OF MEDICAL CARE AND TREATMENT
RESIDE; AND THE WADSWORTH HOSPITAL, AN ACUTE SURGICAL AND MEDICAL
HOSPITAL. AT ALL TIMES MATERIAL HEREIN AFGE LOCAL 1061 WAS THE
RECOGNIZED EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE FOR A
COLLECTIVE BARGAINING UNIT COMPOSED OF ALL NON-PROFESSIONAL AND
NON-SUPERVISORY CIVILIAN EMPLOYEES OF THE VA AT THE WADSWORTH HOSPITAL
CENTER AT ALL THREE OF THE ABOVE DESCRIBED INSTITUTIONS, INCLUDING THE
CANTEEN SERVICE AND NON-APPROPRIATED FUNDS INSTRUMENTALITY.
DURING THE LATTER PART OF DECEMBER 1971 AND THE EARLY PART OF JANUARY
1972 THE ADMINISTRATOR OF VETERANS AFFAIRS DECIDED, IN CONSULTATION WITH
THE WHITE HOUSE AND THE OFFICE OF MANAGEMENT AND BUDGET, AND BASED ON
THE ABOVE DESCRIBED STUDIES AND EVALUATIONS, THAT, BECAUSE PORTIONS OF
THE WADSWORTH HOSPITAL CENTER, AS WELL AS THE VA INSTALLATIONS LOCATED
ELSEWHERE, COULD NOT WITHSTAND AN EARTHQUAKE OF THE MAGNITUDE OF THE ONE
THAT HAD DAMAGED SAN FERNANDO, SUCH BUILDINGS OR PORTIONS OF BUILDINGS
WOULD BE TORN DOWN AND THE PATIENTS AND FUNCTIONS RELOCATED. THIS
DECISION WAS NOT, AT FIRST, MADE PUBLIC OR COMMUNICATED TO AFGE. ON
JANUARY 12, AT A MEETING IN WASHINGTON, D.C., THE ADMINISTRATOR OF
VETERANS AFFAIRS INFORMED THOSE PRESENT OF THE PLANNED HOSPITAL CLOSINGS
AND PATIENT RELOCATION. WITH RESPECT TO THE WEST LOS ANGELES COMPLEX IT
WAS DETERMINED TO CLOSE DOWN PART OF THE WADSWORTH HOSPITAL AND TRANSFER
SOME OF THE AFFECTED PATIENTS TO OTHER SPECIALIZED VA HOSPITALS AND TO
THE AREA THEN OCCUPIED BY THE DOMICILIARY FACILITY. THE DOMICILIARY WAS
TO BE CLOSED OR GREATLY CUT BACK AND ITS PATIENTS PLACED IN OTHER VA
HOSPITAL AND COMMUNITY FACILITIES. THE DOMICILIARY WAS, IN EFFECT, TO
BE COMBINED WITH THE WADSWORTH HOSPITAL AND TO CEASE TO EXIST AS A
SEPARATE FACILITY. PRESENT AT THE MEETING WERE MEMBERS OF THE
ADMINISTRATOR'S STAFF, THE VARIOUS VA HOSPITAL DIRECTORS AND CERTAIN
PERSONNEL OFFICERS FROM THE AFFECTED HOSPITALS, AND OTHER VA OFFICIALS.
AFGE WAS NOT REPRESENTED AT THIS MEETING. A GROUP OF VA OFFICIALS WAS
CHOSEN TO TRAVEL TO CALIFORNIA TO MAKE THE PUBLIC ANNOUNCEMENT ON
JANUARY 14, 1973.
ON JANUARY 14, 1972, AT 1:00 P.M. PST DEPUTY ADMINISTRATOR FOR
VETERANS' AFFAIRS, FRED B. RHODES, READ A PREPARED ANNOUNCEMENT OF THE
ADMINISTRATOR'S DECISION WITH RESPECT TO THE HOSPITAL CLOSING. /2/
PRESENT AT THIS ANNOUNCEMENT, IN ADDITION TO THE PUBLIC, PRESS AND
MEMBERS OF VETERANS GROUPS WERE REPRESENTATIVES OF LOCAL 1061, AFGE.
/3/ MEMBERS OF THE GROUP THAT TRAVELED FROM WASHINGTON REMAINED TO
ASSIST IN THE HOSPITAL CLOSING AND PATIENT RELOCATION.
PRIOR TO THE JANUARY ANNOUNCEMENT, IN ADDITION TO THE DECISION TO
CLOSE CERTAIN HOSPITALS AND RELOCATE PATIENTS, CERTAIN OTHER DECISIONS
WERE ALSO MADE AT THE WASHINGTON LEVEL INCLUDING GUARANTEEING A JOB TO
EACH CAREER VA EMPLOYEE, TRANSFERS TO BE AT AGENCY EXPENSE FOR ANY
EMPLOYEE WHO TRANSFERS, SALARY PROTECTION, AND OUT-PLACEMENT ASSISTANCE.
THERE WAS ALSO A DECISION MADE TO FREEZE EMPLOYMENT AT ALL WEST COAST
FACILITIES AND NEARBY VA FACILITIES. ADMITTEDLY THE AFGE WAS NOT
CONSULTED OR ADVISED CONCERNING ANY DECISIONS PRIOR TO JANUARY 14, 1972.
/4/
IMMEDIATELY FOLLOWING THE JANUARY 14 ANNOUNCEMENT, ON THAT SAME DAY,
REPRESENTATIVES OF THE ACTIVITY MET WITH UNION REPRESENTATIVES TO
DISCUSS THE ANNOUNCEMENT, ITS IMPLEMENTATION AND EFFECT ON EMPLOYEES.
AFGE WAS ADVISED THAT IT HAD BEEN DECIDED AT THE NATIONAL LEVEL, AMONG
OTHER THINGS, THAT AFFECTED EMPLOYEES WERE ASSURED OF JOBS WITH THE VA;
THAT TRANSFERS WOULD BE AT GOVERNMENT EXPENSE; THAT EMPLOYMENT AT OTHER
FACILITIES WAS FROZEN; THAT THERE WOULD BE FULL SALARY PROTECTION;
REDUCTION IN FORCE REGULATIONS WOULD BE FOLLOWED, ETC. AFGE DID NOT
RAISE ANY OBJECTION WITH THESE POLICIES AND PLANS. SUBSEQUENTLY,
REPRESENTATIVES OF AFGE AND THE ACTIVITY MET WEEKLY AND TWICE WEEKLY AT
REGULARLY SCHEDULED MEETINGS TO DISCUSS THE RAMIFICATIONS OF THE
DECISION TO CLOSE PORTIONS OF THE WADSWORTH HOSPITAL AND TO TRANSFER
THOSE AFFECTED PATIENTS, AS WELL AS THE AFFECTED PATIENTS LOCATED AT THE
DOMICILIARY FACILITY. BETWEEN JANUARY 14 AND APRIL 21, 1972, THERE WERE
APPROXIMATELY 13 SUCH FORMAL MEETINGS BETWEEN THE ACTIVITY AND LOCAL
1061, AS WELL AS INFORMAL DISCUSSIONS AND CONVERSATIONS ON AN ALMOST
DAILY BASIS. AT THESE FORMAL AND INFORMAL MEETINGS AFGE AND VA
MANAGEMENT DISCUSSED THE EFFECTS OF THE MAJOR DECISION TO CLOSE THE
HOSPITAL AND RELOCATE PATIENTS ON THE EMPLOYEES IN THE UNIT AND
MANAGEMENT'S PLANS FOR THESE EMPLOYEES. MANY SPECIFIC MATTERS RELATIVE
TO THE IMPLEMENTATION OF THESE DECISIONS AND THEIR IMPACT ON THE
EMPLOYEES IN THE UNIT WERE DISCUSSED. A FEW OF THE ITEMS DISCUSSED AT
THE FORMAL MEETINGS, BY WAY OF EXAMPLE ONLY, WERE TRANSFER AND REDUCTION
IN FORCE (RIF) PROCEDURES; PARKING FACILITIES, COMPLAINTS OF INDIVIDUAL
EMPLOYEES CONCERNING TRANSFER RIGHTS; MILEAGE EXPENSES TO BE PAID TO
EMPLOYEES WHO WERE REQUIRED TO DRIVE FURTHER TO NEW ASSIGNMENTS;
VOLUNTARY TRANSFERS FROM BRENTWOOD TO OTHER VA HOSPITALS; LESS USE OF
"PURCHASE AND HIRE" EMPLOYEES AT BRENTWOOD, ETC. /5/ THE UNION WAS
GIVEN AN OPPORTUNITY TO EXPRESS ITS OPINIONS AND VIEWS CONCERNING THE
ACTIVITY'S PLANS. MANAGEMENT LISTENED TO THESE VIEWS AND, IN SOME
INSTANCES, AS A RESULT OF THESE DISCUSSIONS, MANAGEMENT PLANS WERE
CHANGED, I.E., THE ALLOWANCE FOR MILEAGE WAS INCREASED, A PROPOSED
RETIREMENT LETTER WAS CHANGED, ETC. THE UNION WAS ADVISED THAT ITS
SUGGESTIONS WITH RESPECT TO ANY OF THE PROPOSED PLANS WOULD BE
CONSIDERED. THE UNION'S WITNESSES ALLEGED THAT A REQUEST WAS MADE SOON
AFTER THE JANUARY 14 MEETING THAT A UNION "PARTICIPATE" WITH THE
MANAGEMENT PERSONNEL WORKING IN EACH AREA OF IMPLEMENTING THE BASIC
DECISIONS. THE RECORD IS VAGUE AS TO PRECISELY WHAT THE UNION WAS
REQUESTING. /6/ THE UNION'S REQUEST WAS DENIED, BUT THE UNION WAS
ADVISED AT THE MEETINGS DESCRIBED ABOVE OF THE PLANS MANAGEMENT HAD
ARRIVED AT AND GIVEN AN OPPORTUNITY TO EXPRESS ITS VIEWS, WHICH WERE
CONSIDERED AND, AS DESCRIBED ABOVE, SOMETIMES ADOPTED. THERE WAS NO
EVIDENCE SUBMITTED THAT THE ACTIVITY REFUSED ANY REQUEST MADE BY THE
UNION TO DISCUSS OR CONFER CONCERNING ANY SPECIFIC MATTER. SIMILARLY,
THE ACTIVITY MADE IT CLEAR THAT ANY POLICIES OR DECISION, NO MATTER
WHERE FORMULATED, COULD BE EXAMINED, DISCUSSED, AND REEVALUATED.
THE RECORD ESTABLISHES THAT AT A MEETING ON JANUARY 18, A PROPOSED
QUESTIONNAIRE WAS SHOWN TO AFGE BY THE ACTIVITY AND WAS DISCUSSED. THE
QUESTIONNAIRE WAS TO SOLICIT FROM EMPLOYEES APPROXIMATELY HOW MANY WOULD
BE WILLING TO MOVE AND TRANSFER. AFGE MADE A SUGGESTION CONCERNING TO
WHOM THIS QUESTIONNAIRE SHOULD BE SENT. THERE WAS NO EVIDENCE SUBMITTED
TO ESTABLISH THAT AFGE OBJECTED TO THE ACTIVITY'S ISSUING QUESTIONNAIRES
TO EMPLOYEES SOLICITING THIS TYPE OF INFORMATION. THE UNION'S
SUGGESTION WAS ACCEPTED AND THE QUESTIONNAIRE WAS ISSUED ACCORDINGLY.
/7/ SECOND QUESTIONNAIRE WAS ISSUED A FEW DAYS AFTER THE ONE DISCUSSED
ABOVE SOLICITING FROM EMPLOYEES FURTHER INFORMATION CONCERNING
EMPLOYEES' INTEREST IN TRANSFERS; MORE PRECISELY, WHETHER EMPLOYEES IN
CERTAIN CATEGORIES IN FACT WANT TO TRANSFER. THIS INFORMATION WAS
NECESSARY BECAUSE OF THE DOMICILIARY PATIENTS WERE BEING MOVED AND THE
RECEIVING STATIONS WANTED TO KNOW IF EMPLOYEES TO CARE FOR THEM WERE TO
BE TRANSFERRED OR SHOULD BE OBTAINED FROM THE OUTSIDE. THIS
QUESTIONNAIRE WAS NOT SHOWN TO AFGE BEFORE IT WAS DISTRIBUTED TO
EMPLOYEES. IT WAS DISCUSSED WITH THE UNION AFTER IT WAS ISSUED. /8/
IN SUBSEQUENT MEETINGS AFGE WAS SHOWN DRAFTS OF A NUMBER OF OTHER
LETTERS AND COMMUNICATIONS TO BE SENT EMPLOYEES CONCERNING THE CHANGE OF
OPERATION (I.E., RIF LETTERS, ETC.) THESE DRAFTS WERE DISCUSSED AND AFGE
SUGGESTIONS WERE CONSIDERED.
A DECISION WAS MADE BY THE ACTIVITY TO CONSOLIDATE THE EXISTING THREE
DIETETIC SERVICES /9/ INTO ONE SUCH SERVICE. AT THE JANUARY 18TH
MEETING PRIOR TO ITS TAKING EFFECT, AFGE WAS ADVISED THAT THE ACTIVITY
HAD TO CONSOLIDATE THE THREE DIETETIC SERVICES INTO ONE, LOCATED AT THE
BRENTWOOD HOSPITAL. THIS DECISION TO CONSOLIDATE THE DIETETIC SERVICES
WAS PROBABLY MADE IN WASHINGTON AND THE UNION WAS ADMITTEDLY NOT
INCLUDED IN THE DECISION MAKING PROCESS TO CONSOLIDATE THE DIETETIC
SERVICES. AT THE FEBRUARY 1ST MEETING THE UNION DECIDED THAT THE
CONSOLIDATED DIETETIC SERVICE WOULD BE LOCATED AT WADSWORTH HOSPITAL
RATHER THAN AT THE BRENTWOOD HOSPITAL. THERE WAS NO EVIDENCE SUBMITTED
THAT THE UNION REQUESTED TO BARGAIN ABOUT HOW THE CONSOLIDATION WOULD BE
IMPLEMENTED OR ON ANY SPECIFIC IMPACT IT MIGHT HAVE ON EMPLOYEES OR THAT
THE ACTIVITY REFUSED TO DISCUSS OR CONSULT ABOUT ANY SUCH MATTERS.
AT THE FEBRUARY 18TH MEETING BETWEEN AFGE AND THE ACTIVITY THE
PROCEDURES FOR DETAILING EMPLOYEES TO NEARBY HOSPITALS WAS DISCUSSED IN
DETAIL. AMONG THE SPECIFIC ITEMS DISCUSSED WAS THE CRITERIA FOR DETAILS
AND TRANSFERS AND THE PROVISION OF BUS SERVICES. IT WAS AGREED THAT A
MEMORANDUM WOULD BE PREPARED BY THE ACTIVITY WHICH WOULD BE DISCUSSED
WITH AFGE THE FOLLOWING WEEK. AT THE FEBRUARY 23RD MEETING THIS
MEMORANDUM WAS DISCUSSED. ALTHOUGH AFGE POINTED OUT AT THIS MEETING
THAT THE POLICIES WERE ALREADY PREPARED AND THEREFORE THIS DID NOT
CONSTITUTE CONSULTATION, THE ACTIVITY ASSURED AFGE THAT THEIR
SUGGESTIONS AND VIEWPOINTS WERE IMPORTANT AND WOULD BE CONSIDERED.
AMONG THE MATTERS RAISED BY AFGE WERE THAT THE MILEAGE ALLOWANCE OF SIX
CENTS WAS INADEQUATE AND SHOULD BE 12 CENTS /10/ AND THAT THOSE
TRAVELING ON VA PROVIDED BUSES, WHO DO NOT REACH THE HOME STATION BY
4:30 P.M. SHOULD RECEIVE OVERTIME. THESE BUSES WERE TO TRANSPORT
EMPLOYEES WHO WERE DETAILED TO THE SEPULVEDA AND LONG BEACH VA HOSPITALS
AND WHO DID NOT HAVE ADEQUATE PRIVATE TRANSPORTATION, TO THOSE HOSPITALS
FROM THE WADSWORTH HOSPITAL CENTER. EMPLOYEES WERE NOT REQUIRED TO RIDE
THESE BUSES. ALTHOUGH APPARENTLY THERE WAS NO NOTIFICATION TO THE UNION
BEFORE THE BUS SYSTEM WAS "SET UP," /11/ THE RECORD DOES NOT ESTABLISH
THAT THE AFGE EVER OBJECTED TO OR ASKED TO BARGAIN ABOUT THE PROVISION
OF THE BUSES OR WHETHER OR HOW THE BUSES SHOULD BE SUPPLIED OR WHETHER
SUCH SERVICE SHOULD BE CUT OUT. FURTHER THE RECORD DOES NOT ESTABLISH
THAT THE ACTIVITY REFUSED TO DISCUSS ANY OF THESE MATTERS. RATHER THE
UNION SEEMED INTERESTED IN DISCUSSING THE OVERTIME QUESTION, WHICH
SUBJECT WAS DISCUSSED. FURTHER, THE RECORD DOES NOT ESTABLISH PRECISELY
WHEN THE BUSES WERE FIRST PROVIDED OR IF THEY WERE PROVIDED BEFORE
FEBRUARY 18, WHEN SUCH SERVICE WAS APPARENTLY FIRST DISCUSSED, OR HOW
MANY EMPLOYEES WERE AFFECTED.
THE COMPLAINT IN THE SUBJECT CASE ALLEGES THAT SECTION 19(A)(1) AND
(6) OF THE ORDER WAS VIOLATED BY THE ACTIVITY'S FAILURE TO CONSULT
CONCERNING ITS DECISION TO CLOSE PART OF THE WADSWORTH HOSPITAL AND
FURTHER THAT IT FAILED TO CONSULT CONCERNING THE "TRANSFER OF PATIENTS,
EMPLOYEES AND HOSPITAL FUNCTIONS..." DURING OPENING ORAL ARGUMENT AFGE
STATED IT WAS ALLEGING THE SECTION 19(A)(6) VIOLATION BASED ON THE
ACTIVITY'S FAILURE TO CONSULT CONCERNING CHANGES IN "PERSONNEL POLICIES
AND/OR WORKING CONDITIONS". AFGE WENT ON TO STATE IT WAS ALLEGING
FAILURE TO CONSULT REGARDING BOTH THE DECISION TO CLOSE AND MOVE PART OF
THE WADSWORTH HOSPITAL CENTER OPERATION AND THE IMPACT OF THAT DECISION.
AFGE WENT ON TO STATE THAT "THIS VIOLATION WOULD ALSO REPRESENT A
VIOLATION OF SECTION 19(A)(1)". DURING CLOSING ARGUMENT AFGE
SPECIFICALLY ALLEGED THAT SEC. 19(A)(1) AND (6) OF THE ORDER VIOLATED BY
THE ACTIVITY BECAUSE IT FAILED TO CONSULT ABOUT THE DECISIONS AND
POLICIES ANNOUNCED DURING THE JANUARY 14 ANNOUNCEMENT AND FAILED TO
CONSULT REGARDING THE IMPLEMENTATION AND IMPACT OF ANNOUNCED POLICIES.
AFGE COUNSEL THEN CITED ONLY THREE EXAMPLES WHERE NO CONSULTATION WAS
OFFERED THE UNION AFTER REQUESTS WERE MADE. THE THREE EXAMPLES GIVEN
WERE: (1) THE ISSUANCE OF A QUESTIONNAIRE WITH NO CONSULTATION BECAUSE
THERE WAS ALLEGEDLY NO TIME; (2) THE PROVISION OF BUSES FOR EMPLOYEES
WHO WERE ON DETAIL AND A "CONCERN ABOUT OVERTIME RELATING TO THESE
BUSES"; AND (3) THE CONSOLIDATION OF THREE DIETETIC SERVICES INTO ONE.
AFGE FILED NO BRIEF AND DID NOT SPECIFY ANY OTHER EXAMPLES WHERE THE
ACTIVITY ALLEGEDLY FAILED TO MEET ITS BARGAINING OBLIGATION.
THE VA CONTENDS THAT THE CHARGE WAS ADDRESSED TO THE VA WADSWORTH
HOSPITAL AND NOT THE VA IN WASHINGTON, THEREFORE THE VA NATIONAL OFFICE
IS PROPERLY NOT A PARTY. SECONDLY THE VA CONTENDS THAT CERTAIN OF THE
DECISIONS THAT WERE MADE AT THE WASHINGTON LEVEL WERE NOT SUBJECT TO
CONSULTATION BECAUSE OF MANAGEMENT RIGHTS OR BECAUSE THEY HAD IMPACT
BROADER THAN THE UNIT. FINALLY, VA CONTENDS THAT SUBSEQUENT TO JANUARY
14 THERE WAS ADEQUATE CONSULTATION.
THE ACTIVITY CONTENDS THAT THE WADSWORTH HOSPITAL CENTER, AND NOT THE
VA CENTRAL OFFICE IS THE PROPER RESPONDENT IN THIS CASE, BECAUSE THE
CHARGE LETTER REQUIRED UNDER SECTION 203.2(A)(1) OF THE ASSISTANT
SECRETARY REGULATIONS /12/ WAS ADDRESSED TO "DIRECTOR, WADSWORTH
HOSPITAL CENTER, VETERANS ADMINISTRATION, LOS ANGELES, CALIFORNIA,
90073," AND THE COMPLAINT FORM FILED AS REQUIRED BY SECTION 203.3(A)(2)
OF THE REGULATIONS /13/ SETS FORTH "VETERANS ADMINISTRATION" UNDER "NAME
OF AGENCY"; "WILSHIRE AND SAMTELLE BLVDS, LOS ANGELES, CALIFORNIA
90073" UNDER "ADDRESS"; "J. J. COS, DIRECTOR," UNDER "REPRESENTATIVE TO
CONTACT, TITLE"; AND "WADSWORTH HOSPITAL CENTER" UNDER "ACTIVITY
INVOLVED". THE "COMPLAINT" IS REQUIRED TO BE SERVED ON THE RESPONDENT
AND THE VA ALLEGES IT WAS ONLY SERVED ON MR. COX AND HIS REPRESENTATIVE.
/14/ IT IS CLEAR FROM THE BODY OF THE CHARGE AND THE BODY OF THE
COMPLAINT THE GENERAL DECISIONS AND OTHER AREAS OF CONDUCT THAT ARE
ALLEGED TO VIOLATE THE ORDER. FURTHER, THE CHARGE AND THE COMPLAINT
WERE ADDRESSED TO AND SERVED UPON RESPONSIBLE OFFICIALS OF THE VA,
ALBEIT AT THE WADSWORTH HOSPITAL CENTER, THE PLACE WHERE THE COLLECTIVE
BARGAINING UNIT WAS LOCATED, RATHER THAN THE VA NATIONAL OFFICE IN
WASHINGTON, D.C. IT IS CONCLUDED THAT THIS CONSTITUTED COMPLIANCE WITH
THE REGULATIONS AND WAS SUFFICIENT NOTICE TO MAKE THE VETERANS
ADMINISTRATION THE RESPONDENT. HOSPITAL DIRECTOR DOX IS A RESPONSIBLE
VETERANS ADMINISTRATION AGENT IN LOS ANGELES AND THE RECORD ESTABLISHES
HE WAS ONE OF THE VA REPRESENTATIVES THAT THE UNION NORMALLY DEALT WITH.
IF THE NATIONAL OFFICE WAS SOMEHOW UNAWARE OF THE CHARGE, A FACT NOT
ESTABLISHED, IT WAS THE FAULT OF ITS OWN AGENTS FOR NOT NOTIFYING IT.
TO PLACE THE OBLIGATION UPON THE UNION TO DETERMINE PRECISELY WHICH
OFFICIAL OF THE VA WAS RESPONSIBLE FOR THE ALLEGED UNFAIR LABOR
PRACTICE, KNOWLEDGE WHICH REALLY ONLY THE VA WOULD HAVE, AND THEN TO
REQUIRE THAT THAT PERSON OR OFFICE BE SERVED IS CLEARLY UNREASONABLE.
RATHER IT WAS QUITE REASONABLE AND IN KEEPING WITH THE OBJECTIVE OF THE
OF THE ORDER FOR AFGE TO ADDRESS THE CHARGE AND COMPLAINT TO THE
RESPONSIBLE LOCAL VA OFFICIAL. IN THESE CIRCUMSTANCES THEREFORE, IT IS
CONCLUDED THAT THE VA ITSELF WAS ADEQUATELY SERVED AND NAMED AS REQUIRED
BY THE REGULATIONS.
A. DECISIONS MADE BEFORE JANUARY 14, 1972.
THE UNION CONTENDS THAT THE VA VIOLATED SECTION 19(A)(6) OF THE ORDER
BY FAILING TO NOTIFY AND CONSULT WITH THE UNION BEFORE IT ANNOUNCED ITS
DECISIONS ON JANUARY 14, 1972.
THE DECISIONS ANNOUNCED FALL BASICALLY INTO TWO AREAS. IN THE FIRST
AREA ARE THE DECISIONS TO CLOSE DOWN PART OF THE WADSWORTH CENTER, TO
COMBINE THE WADSWORTH HOSPITAL AND DOMICILIARY FACILITY INTO ONE
OPERATION AND TO TRANSFER PATIENTS TO OTHER VA AND COMMUNITY FACILITIES.
IN THE SECOND AREA ARE THE DECISIONS TO GUARANTEE EACH REGULAR VA
EMPLOYEE A JOB; TO OFFER SALARY PROTECTION AND TO FREEZE HIRING IN
OTHER WESTERN VA FACILITIES.
SECTION 19(A)(6) OF THE ORDER STATES IN PERTINENT PART THAT "AGENCY
MANAGEMENT SHALL NOT REFUSE TO CONSULT, CONFER OR NEGOTIATE WITH A LABOR
ORGANIZATION AS REQUIRES BY THIS ORDER." SECTION 11(A) OF THE ORDER
STATES IN PERTINENT PART THAT AN AGENCY AND EXCLUSIVELY RECOGNIZED LABOR
ORGANIZATION "...SHALL MEET AT REASONABLE TIMES AND CONFER IN GOOD FAITH
WITH RESPECT TO PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS..." SECTION 11(B) GOES ON TO STATE "...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 ORGANIZATION UNIT, WORK PROJECT OR TOUR OF DUTY; THE
TECHNOLOGY OF PERFORMING ITS WORK;.... 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." SECTION 12(B) OF THE ORDER RESERVES TO
MANAGEMENT THE RIGHT:
"(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 MAY BE NECESSARY TO CARRY OUT THE
MISSION OF THE AGENCY IN SITUATIONS OF EMERGENCY;..."
WITH RESPECT TO THE FIRST AREA OF DECISIONS, I.E., TO CLOSE DOWN AND
CONSOLIDATE HOSPITAL FACILITIES AND TO TRANSFER PATIENTS, IT IS APPARENT
THAT THERE WERE "MATTERS, AFFECTING WORKING CONDITIONS" WITHIN THE
MEANING OF SECTION 11(A) OF THE ORDER. HOWEVER, IT IS EQUALLY CLEAR
THAT SUCH DECISIONS ARE OF THE BASIC ORGANIZATIONAL TYPE THAT SECTIONS
11(B) AND 12(B) OF THE ORDER INTENDED TO EXEMPT AND EXCLUDE FROM THE
"MEET AND CONFER" REQUIREMENTS OF SECTION 11(A). THEREFORE, THE
ACTIVITY WAS UNDER NO OBLIGATION TO MEET AND CONFER WITH THE UNION
CONCERNING THESE DECISIONS. SEE U.S. DEPARTMENT OF AIR FORCE, NORTON
AIR FORCE BASE, A/SLMR 261; U.S. DEPARTMENT OF NAVY, GREAT LAKES NAVAL
HOSPITAL, A/SLMR 289; AND PLUM ISLAND ANIMAL DISEASE LABORATORY, FLRC
NO. 71A-11. /15/
THE SECOND AREA OF DECISIONS, AS ANNOUNCED, INVOLVED THE DECISIONS TO
GUARANTEE A JOB TO EACH CAREER VA EMPLOYEE AND TO PROVIDE SALARY
PROTECTION. THESE DECISIONS ARE CLEARLY WITHIN THE COVERAGE OF SECTION
11(A) AS THEY ARE "PERSONNEL POLICIES AND PRACTICES AND MATTERS
AFFECTING WORKING CONDITIONS", AND THEREFORE CREATE AN OBLIGATION ON
MANAGEMENT'S PART TO "MEET AND CONFER IN GOOD FAITH" WITH THE UNION AND
TO DISCUSS THEM. HOWEVER, AT THE JANUARY 14 MEETING THE VA ANNOUNCED
THOSE DECISIONS AS A PART OF THE PLANS FOR IMPLEMENTING THE BASIC
DECISIONS TO CLOSE DOWN THE HOSPITAL FACILITIES AND TRANSFER PATIENTS
AND TO MINIMIZE ANY ADVERSE IMPACT ON EMPLOYEES. THESE PLANS WERE OF A
VERY BASIC AND BROAD NATURE. MANAGEMENT AND THE UNION MET ON JANUARY
14, DISCUSSED THESE PLANS AND OTHER PLANS, AND IMMEDIATELY SET UP THE
SERIES OF WEEKLY AND TWICE WEEKLY MEETINGS DURING WHICH THEY WERE TO
MEET AND DISCUSS THE IMPLEMENTATION AND IMPACT OF THE BASIC DECISIONS.
WHEN THESE PLANS WERE ANNOUNCED ON JANUARY 14, NO FINAL STEPS HAD BEEN
TAKEN SO THAT MANAGEMENT WAS IRREVOCABLY COMMITTED TO THESE PLANS AND NO
EVIDENCE WAS INTRODUCED TO ESTABLISH THAT DURING ANY OF THE MEETINGS THE
UNION OBJECTED TO THE PLANS FOR SALARY PROTECTION OR FOR GUARANTEEING
EACH VA EMPLOYEE A JOB. FURTHER, THE RECORD DOES NOT ESTABLISH THAT THE
ACTIVITY FAILED TO ADVISE THE UNION OF THE PRECISE PROPOSALS FOR
IMPLEMENTING THESE PLANS OR THAT VA MANAGEMENT REFUSED TO DISCUSS AND
CONSIDER ANY OF THE UNION'S VIEWS ABOUT THE PLANS OR THEIR
IMPLEMENTATION OR IMPACT. THE RECORD ESTABLISHES THAT THE VA TIMELY
ADVISED AFGE OF THESE PLANS, AFFORDED AFGE AN OPPORTUNITY TO NEGOTIATE
AND CONFER CONCERNING ALL ASPECTS OF THESE PLANS, THEIR IMPLEMENTATION
AND IMPACT. THE RECORD DOES NOT ESTABLISH THAT THE VA REFUSED ANY
REQUEST BY AFGE TO CONFER AND NEGOTIATE ABOUT ANY OF THESE MATTERS, OR
WITH RESPECT TO THESE MATTERS, THAT THE ACTIVITY VIOLATED SECTION
19(A)(6) OF THE ORDER. SEE U.S. DEPARTMENT OF AIR FORCE, NORTON AIR
FORCE BASE, SUPRA. WITH RESPECT TO THE DECISION TO FREEZE EMPLOYMENT AT
THE WEST COAST AND NEARBY VA INSTALLATIONS, THIS IS A DECISION WHICH
UNDER SECTIONS 11(B) AND 12(B) IS EXCLUDED FROM A BARGAINING OBLIGATION
SINCE IT INVOLVES STAFFING, ETC. INSOFAR AS IT APPLIES TO VA FACILITIES
OTHER THAN THE WEST LOS ANGELES COMPLEX, THE VA HAD NO OBLIGATION TO
NEGOTIATE WITH AFGE UNDER ANY CIRCUMSTANCES. FURTHER, THERE IS NO
EVIDENCE THAT AFGE OBJECTED TO THE POLICY OR THAT THE VA REFUSED TO
CONFER AND NEGOTIATE WITH THE AFGE CONCERNING THE HIRING FREEZE, ITS
IMPLEMENTATION OR ITS IMPACT ON UNIT EMPLOYEES. FURTHER SUCH A POLICY
OF FREEZING NEW HIRING WAS HIGHLY DESIRABLE IN ORDER TO ALLOW THE
ACTIVITY AND AFGE TO MEANINGFULLY NEGOTIATE AND CONFER ABOUT THE
IMPLEMENTATION AND IMPACT OF THE PLANS TO CLOSE DOWN PART OF THE
OPERATION AND TRANSFER PATIENTS. IT WAS NECESSARY IN ORDER TO PROVIDE
THE PARTIES WITH THE GREATEST AMOUNT OF FLEXIBILITY AND CHOICE FOR
BARGAINING. IN ANY EVENT, THIS POLICY WAS OF SUCH A NATURE THAT HAD
AFGE OBJECTED IT COULD HAVE BEEN HALTED BY THE ACTIVITY AT ANY TIME.
IN LIGHT OF ALL OF THE FOREGOING, IT IS CONCLUDED THAT THE RECORD
HEREIN DOES NOT ESTABLISH THAT THE VA VIOLATED SECTION 19(A)(6) BY
FAILING TO CONFER AND NEGOTIATE WITH AFGE WITH RESPECT TO ITS DECISIONS
TO CLOSE DOWN PART OF THE WADSWORTH HOSPITAL CENTER AND TO TRANSFER
PATIENTS OR ITS PLANS TO FREEZE NEW HIRING ON THE WEST COAST, TO
GUARANTEE A JOB TO ALL REGULAR VA EMPLOYEES, AND TO PROVIDE SALARY
PROTECTION.
B. PLANS ANNOUNCED AFTER JANUARY 14, 1972.
THE RECORD ESTABLISHES THAT AFTER JANUARY 14 THE VA AND AFGE MET
OFTEN, BOTH FORMALLY AND INFORMALLY, AND THE VA ADVISED THE UNION OF THE
PLANS IT PROPOSED TO FOLLOW IN ORDER TO IMPLEMENT ITS DECISIONS AS
ANNOUNCED ON JANUARY 14, TO PARTIALLY CLOSE DOWN AND REORGANIZE THE
WADSWORTH HOSPITAL CENTER AND TO TRANSFER PATIENTS, INCLUDING ITS
PROPOSED REDUCTION IN FORCE (RIF) AND TRANSFER PROCEDURES AS WELL AS
MANY OTHER PLANS. AT THESE MEETINGS AFGE WAS GIVEN AN OPPORTUNITY TO
VOICE ITS OBJECTIONS, VIEWS AND THOUGHTS ON EACH PROPOSAL. FURTHER THE
UNION WAS ADVISED BY THE ACTIVITY THAT THE UNION'S VIEWS AS TO ANY PLAN
WOULD BE CONSIDERED, NO MATTER AT WHAT LEVEL THE PLAN WAS MADE.
PROPOSED PLANS WERE FULLY DISCUSSED AND THE AFGE'S VIEWS AND SUGGESTIONS
WERE CONSIDERED, AND IN CERTAIN INSTANCES, ADOPTED. THEREFORE, IT IS
CONCLUDED THAT AT LEAST GENERALLY THE VA DID MEET ITS SECTION 11(A) AND
19(A)(6) OBLIGATIONS TO "MEET AND CONFER" BOTH WITH RESPECT TO THE
PROCEDURES FOR IMPLEMENTATING THE DECISIONS AND TO THE IMPACT OF ITS
DECISIONS ON EMPLOYEES. CF. UNITED STATES DEPARTMENT OF NAVY, BUREAU
OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL, SUPRA.
AFGE SPECIFIED ONLY THREE SUCH MATTERS WITH RESPECT TO WHICH THE
ACTIVITY ALLEGEDLY FAILED TO MEET ITS BARGAINING OBLIGATIONS.
1. DIETETIC SERVICES.
THE ACTIVITY ADVISED THE UNION AT THE JANUARY 18 MEETING THAT IT HAD
DECIDED THAT THE THREE DIETETIC SERVICES THAT THEN EXISTED WOULD BE
COMBINED INTO ONE SUCH DIETETIC SERVICE LOCATED AT THE BRENTWOOD
HOSPITAL. AT THE FEBRUARY 1ST MEETING THE VA ADVISED THE UNION THAT THE
CONSOLIDATED DIETETIC SERVICE WOULD BE LOCATED IN THE WADSWORTH
HOSPITAL. THIS DECISION BY THE ACTIVITY WHICH THE UNION WAS APPARENTLY
ADVISED OF BEFORE IT ACTUALLY WENT INTO EFFECT, IS CLEARLY EXEMPTED FROM
ANY BARGAINING OBLIGATION BY SECTIONS 11(B) AND 12(B) OF THE ORDER. CF.
U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE BASE, SUPRA. THEREFORE
THE ACTIVITY DID NOT, AS CONTENDED BY THE UNION, FAIL TO BARGAIN IN GOOD
FAITH ABOUT THE DECISION TO CONSOLIDATE THE DIETETIC SERVICES. FURTHER
THERE WAS NO EVIDENCE SUBMITTED AND THEREFORE THE RECORD DOES NOT
ESTABLISH THAT THE ACTIVITY FAILED OR REFUSED TO BARGAIN ABOUT EITHER
THE IMPLEMENTATION OR IMPACT OF THIS DECISION.
2. QUESTIONNAIRE.
ADMITTEDLY, A FEW DAYS AFTER SHOWING ITS FIRST TRANSFER QUESTIONNAIRE
TO THE UNION, DISCUSSING IT AND THEN ISSUING IT, THE VA ISSUED A SECOND
TRANSFER QUESTIONNAIRE TO ITS EMPLOYEES WITHOUT FIRST SHOWING IT TO THE
UNION. THE RECORD FURTHER ESTABLISHES THAT A NUMBER OF COMMUNICATIONS
TO EMPLOYEES WERE SHOWN TO THE UNION AND DISCUSSED AT VARIOUS MEETINGS
BEFORE BEING ISSUED. THE SECOND TRANSFER QUESTIONNAIRE WAS THE ONLY
INSTANCE OF SUCH A COMMUNICATION BEING ISSUED BEFORE THE UNION'S VIEWS
AS TO ITS FORMAT AND CONTENT WERE SOLICITED. THE RECORD DOES NOT
ESTABLISH THAT, WITH RESPECT TO ANY OF THE OTHER QUESTIONNAIRES AND
COMMUNICATIONS, THE UNION EVER OBJECTED IN PRINCIPAL TO SUCH FORMS OF
COMMUNICATIONS. IN ALL OF THESE CIRCUMSTANCES, IT IS CONCLUDED THAT THE
ISSUANCE OF THE SECOND TRANSFER QUESTIONNAIRE DID NOT CONSTITUTE A
REFUSAL OR FAILURE TO "MEET AND CONFER" ABOUT A DECISION AFFECTING
WORKING CONDITIONS. THE QUESTIONNAIRE WAS NOT A "DECISION" IN THAT
SENSE, BUT WAS MERELY AN ATTEMPT TO ASCERTAIN INFORMATION UPON WHICH
DECISIONS COULD BE BASED. FURTHER, THERE WAS NO EVIDENCE SUBMITTED THAT
THE VA REFUSED OR FAILED TO DISCUSS THE INFORMATION OBTAINED FROM THE
QUESTIONNAIRE OR ANY DECISION THAT MIGHT HAVE BEEN BASED UPON THIS
INFORMATION. AT MOST IT COULD BE CONSIDERED AN ATTEMPT TO BYPASS THE
EMPLOYEES COLLECTIVE BARGAINING AGENT AND TO COMMUNICATE DIRECTLY WITH
THE EMPLOYEES. THE UNION DID NOT ALLEGE IT AS SUCH A VIOLATION OR
PRESENT SUCH RATIONALE. IN THE INSTANT SITUATION THE UNION HAD
PRESUMABLY APPROVED THE ISSUANCE OF A QUESTIONNAIRE THAT WAS TO SOLICIT
SIMILAR INFORMATION, HAD APPROVED AND DISCUSSED OTHER COMMUNICATIONS
DIRECTLY BETWEEN THE VA AND EMPLOYEES AND HAD NEVER OBJECTED TO SUCH
COMMUNICATIONS. FURTHER, THE ISSUANCE OF THE QUESTIONNAIRE WITHOUT
PRIOR DISCUSSION WITH AFGE WAS CLEARLY AN INADVERTANCE. IN ALL OF THESE
CIRCUMSTANCES THE ISSUANCE OF THIS QUESTIONNAIRE COULD HARDLY BE
CONCLUDED TO BE AN ATTEMPT TO BYPASS THE UNION AND TO AVOID COLLECTIVE
BARGAINING OBLIGATIONS AND THEREFORE DID NOT CONSTITUTE A VIOLATION OF
SECTION 19(A)(6) OF THE ORDER.
3. BUS SERVICE.
THE RECORD ESTABLISHES THAT AT THE FEBRUARY 18 AND FEBRUARY 23
MEETINGS THE UNION AND THE ACTIVITY DISCUSSED THE PROVISION OF BUS
SERVICE FROM WADSWORTH HOSPITAL CENTER TO EMPLOYEES TRANSFERRED TO THE
SEPULVEDA AND LONG BEACH VA HOSPITALS. NO EMPLOYEES WERE REQUIRED TO
UTILIZE SUCH BUS SERVICE. THE RECORD DOES NOT CLEARLY ESTABLISH THAT
THE UNION WAS ADVISED OF AND GIVEN AN OPPORTUNITY TO DISCUSS THE BUS
SERVICE AFTER THE SERVICE HAD A HEAD START. /16/ EVEN ASSUMING,
HOWEVER, ARGUENDO, THAT THE AFGE WAS NOT ADVISED UNTIL AFTER THE BUS
SERVICE STARTED TO OPERATE, THE RECORD HEREIN DOES NOT ESTABLISH THAT
THE ACTIVITY DID NOT FULFILL ITS OBLIGATION TO "MEET AND CONFER".
ALTHOUGH IT WOULD HAVE BEEN BETTER FORM TO HAVE ADVISED THE UNION BEFORE
THE BUS SERVICE ACTUALLY STARTED, THE UNION WAS ADVISED AT LEAST SOON
AFTER IT STARTED AND THE ACTIVITY HAD THE AUTHORITY AND ABILITY TO STOP
OR ALTER THE BUS SERVICE AFTER HEARING AFGE'S POSITION. FURTHER AFGE
DID NOT OBJECT TO THE PROVIDING OF BUS SERVICE TO TRANSFERRED EMPLOYEES,
BUT RATHER IT REQUESTED THAT THE ACTIVITY PAY SUCH TRANSFERRED EMPLOYEES
OVERTIME IF THEY ARE TRAVELING ON THE BUS AFTER QUITTING TIME. THIS
SUGGESTION WAS RECEIVED, DISCUSSED AND CONSIDERED BY THE ACTIVITY.
FURTHER THE RECORD DOES NOT ESTABLISH THAT THERE WAS ANY PRIOR DEMAND BY
THE UNION TO CONFER CONCERNING WHETHER THE ACTIVITY SHOULD PROVIDE ANY
TRANSPORTATION TO TRANSFERRED EMPLOYEES OR THAT THE ACTIVITY REFUSED
SUCH A REQUEST. IN LIGHT OF ALL THE FOREGOING, AND ESPECIALLY IN VIEW
OF THE LARGE NUMBER OF MEETINGS AND EXTENSIVE DISCUSSIONS CONCERNING ALL
OF THE OTHER VARIED AND NUMEROUS ASPECTS OF THE BASIC DECISIONS, AND
THEIR IMPLEMENTATION AND IMPACT ON EMPLOYEES, IT IS CONCLUDED THAT THE
ACTIVITY DID NOT VIOLATE SECTION 19(A)(6) OF THE ORDER BY FAILING TO
MEET ITS COLLECTIVE BARGAINING OBLIGATIONS CONCERNING THE PROVIDING OF
BUS SERVICE.
IN VIEW OF ALL OF THE FOREGOING, I CONCLUDE THAT THE RECORD HEREIN
DOES NOT ESTABLISH THAT RESPONDENT ACTIVITY VIOLATED SECTIONS 19(A)(6)
OF THE ORDER, AS ALLEGED. FURTHER BECAUSE THE SECTION 19(A)(1)
VIOLATIONS WERE INTENDED TO FLOW FROM THE ALLEGED SECTION 19(A)(6)
VIOLATIONS, I CONCLUDE THAT THE RECORD FAILS TO ESTABLISH THAT
RESPONDENT ACTIVITY VIOLATED SECTION 19(A)(1) OF THE ORDER.
UPON THE BASIS OF THE ABOVE FINDINGS AND CONCLUSIONS I RECOMMEND THAT
THE ENTIRE COMPLAINT HEREIN BE DISMISSED.
DATED: DECEMBER 20, 1973
WASHINGTON, D.C.
/1/ ALSO CALLED THE EXTENDED CARE HOSPITAL.
/2/ SIMULTANEOUSLY THE ADMINISTRATOR READ THE SAME ANNOUNCEMENT AT
10:00 A.M., EST IN WASHINGTON, D.C.
/3/ REPRESENTATIVES OF THE AFGE NATIONAL OFFICE WERE PRESENT AT THE
WASHINGTON ANNOUNCEMENT.
/4/ AFGE SUBMITTED EVIDENCE THAT PRIOR TO THE JANUARY 14, 1973
ANNOUNCEMENT IT HAD HEARD RUMORS OF THE CLOSINGS AND HAD TRIED TO CHECK
THEM OUT WITH VARIOUS HOSPITAL ADMINISTRATORS. THE LOCAL VA OFFICIALS
DENIED KNOWLEDGE OF ANY SUCH PLANS. NO EVIDENCE WAS SUBMITTED TO
ESTABLISH THAT THE LOCAL VA OFFICIALS KNEW OF THESE PLANS PRIOR TO THE
JANUARY 12 MEETING IN WASHINGTON, D.C.
/5/ PROBLEMS OF SPECIFICALLY NAMED EMPLOYEES THAT WERE TRANSFERRED OR
AFFECTED WERE ALSO DISCUSSED. IN FACT UNION OFFICIALS WERE GRANTED
SUBSTANTIAL ADMINISTRATIVE LEAVE TO ASSIST EMPLOYEES IN PREPARING
COMPLAINTS TO THE CIVIL SERVICE COMMISSION CONCERNING TRANSFERS, RIFS,
ETC.
/6/ THE UNION PRESIDENT TESTIFIED THAT THE UNION DIDN'T HAVE A
PRECISE CONCEPT OF WHAT ROLE IT WOULD PLAN, IT JUST WANTED TO "HELP AND
COOPERATE."
/7/ A PROPOSED RETIREMENT LETTER WAS ALSO DISCUSSED AND SOME CHANGES
SUGGESTED BY AFGE WERE MADE.
/8/ THERE IS SOME CONFUSION AND CONFLICT IN EVIDENCE AS TO WHETHER IT
WAS THE FIRST OR SECOND QUESTIONNAIRE THAT WAS ISSUED BEFORE SHOWING IT
TO AFGE. IT IS CONCLUDED THAT THE WEIGHT OF THE CREDIBLE EVIDENCE
INDICATES AND I FIND IT WAS THIS SECOND QUESTIONNAIRE THAT WAS ISSUED
PRIOR TO SHOWING IT TO AFGE.
/9/ THE DIETETIC SERVICES WERE LOCATED AT THE WADSWORTH HOSPITAL,
DOMICILIARY AND BRENTWOOD HOSPITAL.
/10/ APPARENTLY THE MILEAGE WAS RAISED TO 10 CENTS.
/11/ NONE OF THE WITNESSES PRESENTED BY AFGE STATED THAT THERE WAS NO
CONSULTATION ON THIS ISSUE. THE ONLY EVIDENCE TO ESTABLISH THIS WAS BY
MR. STANFORD TSUGAWA, THE PERSONNEL OFFICER FOR WADSWORTH WHO STATED
THAT HE DIDN'T HANDLE THIS MATTER HIMSELF BUT THAT MR. COX OF THE
SOUTHERN REGIONAL MEDICAL DISTRICT DID. MR. TSUGAWA TESTIFIED THAT HE
WAS AWARE OF NO CONSULTATION BETWEEN MR. COX AND AFGE BEFORE SETTING UP
THE BUS SYSTEM.
/12/ THIS SECTION STATES IN PART: "A CHARGE IN WRITING ALLEGING THE
UNFAIR LABOR PRACTICE MUST BE FILED DIRECTLY WITH THE PARTY OR PARTIES
AGAINST WHOM THE CHARGE IS DIRECTED.
/13/ THIS SECTION REQUIRES, IN PART, THAT THE COMPLAINT CONTAIN
"...THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE AGENCY, OR ACTIVITY OR
LABOR ORGANIZATION AGAINST WHOM THE COMPLAINT IS MADE."
/14/ IT SHOULD BE NOTED THAT THE "NOTICE OF HEARING" WITH THE
COMPLAINT ATTACHED WAS SERVED ON ROBERT E. COY, ASSISTANT GENERAL
COUNSEL, VA, 810 VERMONT AVE., N.W. WASHINGTON, D.C. 20420 AND FURTHER
THAT, AT THE HEARING MR. SHOCHET STATED THAT HE ALSO APPEARED ON BEHALF
OF THE VA NATIONAL OFFICE.
/15/ WHETHER THE ACTIVITY COMPLIED WITH THE SECTION 11(B)
REQUIREMENTS OF "NEGOTIATING" CONCERNING "EMPLOYEES ADVERSELY AFFECTED
BY THE IMPACT" OF THESE BASIC DECISIONS IS DISCUSSED BELOW.
/16/ THE RECORD ESTABLISHED THAT THE UNION WAS APPARENTLY CONSULTED
BEFORE THE BUS SERVICE WAS "SET UP." IT WAS NEVER EXPLAINED WHETHER THIS
REFERS TO THE SETTING UP OF THE PLANS OR THE ACTUAL INSTITUTION OF BUS
SERVICE.
4 A/SLMR 387; P. 307; CASE NO. 60-3536(RO); MAY 10, 1974.
DEPARTMENT OF AGRICULTURE
OFFICE OF INFORMATION SYSTEMS,
KANSAS CITY, MISSOURI
A/SLMR NO. 387
THE PETITIONER, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1633,
(NFFE) SOUGHT AN ELECTION IN A UNIT OF ALL EMPLOYEES EMPLOYED BY THE
DEPARTMENT OF AGRICULTURE, OFFICE OF INFORMATION SYSTEMS AT THE
DEPARTMENT OF AGRICULTURE, KANSAS CITY, MISSOURI CENTER. THE ACTIVITY
CONTENDED THAT THE SMALLEST UNIT THAT COULD BE CONSIDERED APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WOULD BE A UNIT INCLUDING
ELIGIBLE EMPLOYEES OF ALL THE ACTIVITY'S COMPUTER CENTERS.
THE ASSISTANT SECRETARY FOUND THAT THE EVIDENCE ADDUCED DURING THE
HEARING IN THIS CASE DID NOT PROVIDE A SUFFICIENT BASIS UPON WHICH A
DECISION COULD BE MADE REGARDING THE APPROPRIATENESS OF THE CLAIMED
UNIT. ALTHOUGH THE RECORD DID CONTAIN CERTAIN FACTS CONCERNING THE
OVERALL NATIONWIDE OPERATIONS OF THE ACTIVITY, THE ASSISTANT SECRETARY
DEEMED IT NECESSARY TO SECURE MORE INFORMATION. WITH RESPECT TO THE
PETITIONED FOR UNIT, THE ASSISTANT SECRETARY NOTED THAT THERE WAS
INSUFFICIENT EVIDENCE WITH RESPECT TO THE FUNCTIONS OF THE THREE
BRANCHES WITHIN THE KANSAS CITY CENTER AND THEIR RELATIONSHIP WITH ONE
ANOTHER; THE NUMBER OF EMPLOYEES WITHIN EACH BRANCH, THEIR JOB TITLES
AND CLASSIFICATIONS; THE TYPE OF WORK PERFORMED AND SKILLS INVOLVED;
THE SUPERVISION OF THE EMPLOYEES AND THEIR WORKING CONDITIONS; THE
EXTENT, IF ANY, OF INTERCHANGE AND TRANSFER OF EMPLOYEES; AND THE
DUTIES, RESPONSIBILITIES AND AUTHORITY OF THE DIRECTOR OF THE COMPUTER
CENTER.
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.
DEPARTMENT OF AGRICULTURE,
OFFICE OF INFORMATION SYSTEMS,
KANSAS CITY, MISSOURI
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1633
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICE ROBERT E. LACKLAND.
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 ORGANIZATIONS INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE NFFE SEEKS AN ELECTION IN A UNIT OF ALL EMPLOYEES EMPLOYED BY
THE DEPARTMENT OF AGRICULTURE, OFFICE OF INFORMATION SYSTEMS AT THE
DEPARTMENT OF AGRICULTURE, KANSAS CITY, MISSOURI CENTER. /2/ THE
ACTIVITY CONTENDS THAT THE SMALLEST UNIT THAT COULD BE CONSIDERED
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WOULD BE A UNIT
INCLUDING ELIGIBLE EMPLOYEES OF ALL THE ACTIVITY'S COMPUTER CENTERS.
THE ACTIVITY, THE OFFICE OF INFORMATION SYSTEMS (OIS) OF THE
DEPARTMENT OF AGRICULTURE, WAS ESTABLISHED ON MARCH 30, 1972, FOR THE
PURPOSE OF PROVIDING A MORE EFFICIENT AUTOMATED DATA PROCESSING SYSTEM
WITHIN THE DEPARTMENT TO MEET MANAGEMENT'S INFORMATIONAL 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 OIS. THE CONSOLIDATION INVOLVED THE
COMPUTER CENTERS LOCATED AT WASHINGTON, D.C.; NEW ORLEANS, LOUISIANA;
KANSAS CITY, MISSOURI; MINNEAPOLIS, MINNESOTA; AND ST. LOUIS,
MISSOURI. /3/ THE RECORD INDICATES THAT CURRENTLY THE OIS OPERATION IS
IN A STATE OF DEVELOPMENT AND, AS YET, THE PROCESS OF STANDARDIZING THE
ACTIVITY'S OPERATIONS HAS NOT BEEN COMPLETED. THE ACTIVITY CONTENDS
THAT WHEN THE OIS OPERATION IS DEVELOPED COMPLETELY, THERE WILL BE A
NETWORK OF COMPUTER CENTERS WHICH WILL ALLOW FOR AN EVEN DISTRIBUTION OF
WORK AMONG THE CENTERS AND WILL ASSURE SUFFICIENT BACKUP SUPPORT IN THE
EVENT OF AN EQUIPMENT FAILURE AT ANY ONE OF THE CENTERS.
THE RECORD IS UNCLEAR AS TO THE TYPE AND FREQUENCY OF COMMUNICATION
AND OTHER CONTACTS WITH RESPECT TO THE EMPLOYEES OF THE VARIOUS CENTERS.
THUS, WHILE THE EVIDENCE DISCLOSES THAT THE ACTIVITY USES A "TEAM
CONCEPT" WHEN A NEW CENTER IS ESTABLISHED, WHEN AN EMERGENCY ARISES, OR
WHEN A DIFFICULT PROBLEM REQUIRES RESOLUTION AT AN EXISTING CENTER, IT
IS UNCLEAR AS TO COMPOSITION OF THE TEAM AND THE FREQUENCY OF TEAM
UTILIZATION. ALSO, THERE IS A PAUCITY OF EVIDENCE AS TO INTERCHANGE OF
EMPLOYEES AND EMPLOYEE TRANSFERS, IF ANY, AMONG THE VARIOUS CENTERS AND
THE RECORD IS INCOMPLETE WITH RESPECT TO WHERE MEANINGFUL AUTHORITY LIES
FOR THE IMPLEMENTING OF THE ACTIVITY'S LABOR RELATIONS POLICIES AND
WHERE THE AUTHORITY AND RESPONSIBILITY REST FOR HANDLING NEGOTIATIONS
AND THE SETTLING OF EMPLOYEE GRIEVANCES. /4/
THERE ALSO IS AMBIGUITY REGARDING THE COMPOSITION OF THE PETITIONED
FOR UNIT. THUS, WHILE THERE IS EVIDENCE AS TO THE FRAMEWORK OF THE
ORGANIZATION STRUCTURE WITHIN THE KANSAS CITY CENTER, SUFFICIENT
INFORMATION UPON WHICH TO MAKE A DECISION IS LACKING WITH RESPECT TO THE
THREE OPERATIONAL BRANCHES WITHIN THE CENTER AND THEIR RELATIONSHIP TO
ONE ANOTHER. NOR IS THERE ANY INFORMATION WITH REGARD TO THE NUMBER OF
EMPLOYEES IN EACH BRANCH, THEIR JOB TITLES AND CLASSIFICATIONS, THE TYPE
OF WORK THEY PERFORM AND THE SKILLS INVOLVED, THEIR SUPERVISION, THE
EXTENT, IF ANY, OF INTERCHANGE AND TRANSFERS, THEIR WORKING CONDITIONS,
AND THE AREAS OF CONSIDERATION FOR PROMOTION AND REDUCTION-IN-FORCE
PURPOSES. IN ADDITION, RECORD TESTIMONY IS UNCLEAR AND INCOMPLETE WITH
RESPECT TO THE DUTIES, RESPONSIBILITIES AND AUTHORITY OF THE KANSAS CITY
COMPUTER CENTER'S DIRECTOR AND THE RECORD IS DEVOID OF INFORMATION
CONCERNING THE STATUS OF THE MINNEAPOLIS CENTER AND ITS RELATIONSHIP, IF
ANY, TO THE KANSAS CITY CENTER.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE RECORD DOES NOT
PROVIDE AN ADEQUATE BASIS UPON WHICH TO DETERMINE THE APPROPRIATENESS OF
THE UNIT BEING SOUGHT. THEREFORE, I SHALL REMAND THE SUBJECT CASE 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 UNIT.
IT IS HEREBY ORDERED THAT THE SUBJECT CASE BE, AND IT HEREBY IS,
REMANDED TO THE APPROPRIATE ASSISTANT REGIONAL DIRECTOR.
DATED, WASHINGTON, D.C.
MAY 10, 1974
/1/ THE PETITIONER, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1633, HEREIN CALLED NFFE, FILED THREE POST-HEARING MOTIONS. UPON
CAREFUL CONSIDERATION OF THE MOTIONS, AND NOTING THE DISPOSITION OF THE
SUBJECT CASE, THE NFFE'S MOTIONS ARE HEREBY DENIED.
/2/ THE UNIT APPEARS ESSENTIALLY AS AMENDED AT THE HEARING.
/3/ THE RECORD INDICATES THAT THE ACTIVITY IS IN THE PROCESS OF
CLOSING DOWN THE OPERATION AT ITS ST. LOUIS COMPUTER CENTER. AN
ADDITIONAL CENTER AT FORT COLLINS, COLORADO WAS ESTABLISHED WHERE
SKELETAL STAFFING HAD TAKEN PLACE AT THE TIME OF THE HEARING IN THE
INSTANT CASE.
/4/ INFORMATION SUBMITTED BY THE ACTIVITY SUBSEQUENT TO THE HEARING
DISCLOSES THAT CERTAIN CHANGES IN THIS REGARD ARE CONTINUING. IT WAS
NOTED THAT AT THE HEARING THE PARTIES AGREED THAT INFORMATION, THEN
UNAVAILABLE TO THE ACTIVITY, COULD BE SUBMITTED FOR THE RECORD AT A
LATER DATE. THE INFORMATION WAS RECEIVED SUBSEQUENTLY AND IS HEREBY
INCORPORATED IN THE RECORD OF THESE PROCEEDINGS.
4 A/SLMR 386; P. 302; CASE NO. 70-4020(RO); APRIL 30, 1974.
DEFENSE SUPPLY AGENCY,
DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA
A/SLMR NO. 386
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2029, (AFGE), SOUGHT AN ELECTION IN A UNIT COMPOSED OF ALL THE
UNREPRESENTED PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE (GS)
EMPLOYEES OF THE DEFENSE SUPPLY AGENCY, DEFENSE DEPOT TRACY, TRACY,
CALIFORNIA. THE ACTIVITY AND THE INTERVENOR, LABORERS INTERNATIONAL
UNION, AFL-CIO, LOCAL 1276 (LIU), AGREED AS TO THE APPROPRIATENESS OF
THE CLAIMED UNIT. HOWEVER, THE AFGE AND THE LIU MAINTAINED, IN
DISAGREEMENT WITH THE ACTIVITY, THAT CERTAIN EMPLOYEES WERE INELIGIBLE
FOR INCLUSION IN THE UNIT SOUGHT BECAUSE THEY WERE EITHER MANAGEMENT
OFFICIALS OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY.
NOTING PARTICULARLY THE AGREEMENT OF THE PARTIES WITH RESPECT TO THE
APPROPRIATENESS OF THE CLAIMED UNIT, THE ASSISTANT SECRETARY FOUND THAT
THE CLAIMED RESIDUAL UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. IN THIS REGARD, HE FOUND THAT THE CLAIMED UNIT WOULD
INCLUDE ALL THE REMAINING UNREPRESENTED EMPLOYEES OF THE ACTIVITY, THAT
ALL OF THE EMPLOYEES IN THE PETITIONED FOR UNIT WORK UNDER THE OVERALL
SUPERVISION OF THE ACTIVITY'S COMMANDER, AND THAT THE PERSONNEL POLICIES
OF THE ACTIVITY ARE IMPLEMENTED THROUGH A CIVILIAN PERSONNEL OFFICE
WHICH SERVICES ALL OF THE EMPLOYEES OF THE DEPOT.
THE ASSISTANT SECRETARY FOUND ALSO THAT UNDER THE CRITERIA
ESTABLISHED IN DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING
DEVELOPMENT CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION,
TENNESSEE, A/SLMR NO. 135, THE EMPLOYEES IN THE DISPUTED CLASSIFICATIONS
WERE NOT MANAGEMENT OFFICIALS. MOREOVER, HE CONCLUDED THAT NONE OF THE
DISPUTED EMPLOYEES WERE ENGAGED IN FEDERAL PERSONNEL WORK WITHIN THE
MEANING OF SECTION 10(B)(2) OF THE ORDER. IN THIS LATTER REGARD, HE
NOTED THAT WHILE SOME OF THESE EMPLOYEES MAY, IN CONNECTION WITH THEIR
DUTIES, MAKE STAFFING RECOMMENDATIONS WHICH COULD ULTIMATELY, AFTER
APPROVAL AND IMPLEMENTATION, AFFECT THE STAFFING OF THE ACTIVITY, THEY
WERE NOT INVOLVED IN THE PROCESSING OF INDIVIDUAL PERSONNEL ACTIONS ON A
REGULAR BASIS AND AS A PART OF THEIR DAY-TO-DAY RESPONSIBILITY. UNDER
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT ALL OF THE
EMPLOYEES IN THE DISPUTED CLASSIFICATIONS SHOULD BE INCLUDED IN THE UNIT
FOUND APPROPRIATE.
ACCORDINGLY, HE DIRECTED AN ELECTION IN THE UNIT FOUND APPROPRIATE.
DEFENSE SUPPLY AGENCY,
DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2029 /1/
AND
LABORERS INTERNATIONAL
UNION, AFL-CIO, LOCAL 1276 /2/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER MARILYN KOSLOW.
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 OF THE
PETITIONER, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2029, HEREINAFTER CALLED AFGE, SEEKS AN ELECTION IN A
UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE (GS)
EMPLOYEES EMPLOYED BY THE DEFENSE SUPPLY AGENCY, DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
SUPERVISORS, GUARDS AS DEFINED BY THE ORDER, AND EMPLOYEES OF THE
ACTIVITY WHO CURRENTLY ARE REPRESENTED IN UNITS OF EXCLUSIVE
RECOGNITION.
THE RECORD INDICATES THAT THE PARTIES ARE IN AGREEMENT AS TO THE
APPROPRIATENESS OF THE CLAIMED UNIT. THE AFGE AND THE INTERVENOR,
LABORERS INTERNATIONAL UNION, AFL-CIO, LOCAL 1276, HEREINAFTER CALLED
LIU, MAINTAIN, HOWEVER, AND THE ACTIVITY DISAGREES, THAT CERTAIN
EMPLOYEES ARE INELIGIBLE FOR INCLUSION IN THE UNIT SOUGHT BECAUSE THEY
EITHER ARE MANAGEMENT OFFICIALS ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY.
THE UNIT
THE ACTIVITY, WHICH IS ONE OF FOUR DEPOTS OF THE DEFENSE SUPPLY
AGENCY, RECEIVES, STORES AND ISSUES SUPPLIES AND MATERIAL THAT ARE
COMMON TO TWO OR MORE OF THE MILITARY SERVICES. IT IS HEADED BY A
COMMANDER AND IS MADE UP OF SEVEN PRINCIPAL ORGANIZATIONAL ENTITIES
DESIGNATED AS DIRECTORATES. THE THREE LARGEST OF THESE DIRECTORATES--
STORAGE AND TRANSPORTATION, INDUSTRIAL PLANT EQUIPMENT, AND INSTALLATION
SERVICES-- ARE MISSION ORIENTED; THE FOUR REMAINING DIRECTORATES--
OFFICE OF DATA SYSTEMS, OFFICE OF COMPTROLLER, OFFICE OF PLANNING AND
MANAGEMENT, AND THE OFFICE OF CIVILIAN PERSONNEL-- PERFORM STAFF
FUNCTIONS.
THE RECORD REVEALS THAT CURRENTLY THERE ARE SEVEN EXCLUSIVELY
RECOGNIZED UNITS AT THE ACTIVITY. THUS, THE AFGE IS THE EXCLUSIVE
REPRESENTATIVE OF A UNIT OF ALL OF THE ELIGIBLE GS AND WAGE BOARD (WB)
EMPLOYEES OF THE DIRECTORATE OF INDUSTRIAL PLANT EQUIPMENT, STOCKTON,
CALIFORNIA, AND ALSO IS THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF ALL GS
EMPLOYEES IN THE TELEPHONE BRANCH OF THE DIRECTORATE OF INSTALLATION
SERVICES AND OF A UNIT OF ALL WB EMPLOYEES OF THE PUBLICATIONS BRANCH OF
THE DIRECTORATE OF INSTALLATION SERVICES. THE INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LOCAL 2209, AFL-CIO, IS THE EXCLUSIVE
REPRESENTATIVE OF THREE SEPARATE UNITS AT THE ACTIVITY: ALL GS
EMPLOYEES OF THE FIRE PROTECTION AND PREVENTION BRANCH, DIRECTORATE OF
INSTALLATION SERVICES, ALL WB EMPLOYEES IN THE FACILITIES ENGINEERING
DIVISION, DIRECTORATE OF INSTALLATION SERVICES, AND ALL THE EMPLOYEES,
GS-9 AND BELOW, IN THE OFFICE OF DATA SYSTEMS. IN ADDITION, THE LIU IS
THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF ALL THE REMAINING WB EMPLOYEES
NOT INCLUDED IN ANY OF THE ABOVE LISTED UNITS.
THE EVIDENCE ESTABLISHES THAT THE CLAIMED UNIT INCLUDES ALL OF THE
REMAINING UNREPRESENTED EMPLOYEES OF THE ACTIVITY. FURTHER, ALL OF THE
EMPLOYEES IN THE PETITIONED FOR WORK UNIT UNDER THE OVERALL SUPERVISION
OF THE ACTIVITY'S COMMANDER AND THE PERSONNEL POLICIES OF THE ACTIVITY
ARE IMPLEMENTED THROUGH A CIVILIAN PERSONNEL OFFICE WHICH SERVICES ALL
OF THE ACTIVITY'S EMPLOYEES.
UNDER THESE CIRCUMSTANCES, AND NOTING PARTICULARLY THE AGREEMENT OF
THE PARTIES WITH RESPECT TO THE APPROPRIATENESS OF THE CLAIMED UNIT, I
FIND THAT THE CLAIMED RESIDUAL UNIT IS APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION UNDER THE ORDER.
ELIGIBILITY ISSUES
AS STATED ABOVE, THE AFGE AND THE LIU CONTEND THAT CERTAIN EMPLOYEES
SHOULD BE EXCLUDED FROM THE CLAIMED UNIT BECAUSE THEY ARE MANAGEMENT
OFFICIALS AND/OR EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY. THE EMPLOYEES AT ISSUE INCLUDE AN
ADMINISTRATIVE OFFICER, SAFETY SPECIALISTS, A CLAIMS OFFICER /3/, AND
CERTAIN MANAGEMENT ANALYSTS, SYSTEMS ANALYSTS, AND PROGRAM ANALYSTS.
ADMINISTRATIVE OFFICER, GS-9, OFFICE OF THE CHIEF, CIVIL ENGINEERING
DIVISION, DIRECTORATE OF INSTALLATION SERVICES
THE RECORD REVEALS THAT THIS ADMINISTRATIVE OFFICER PERFORMS WORK
INVOLVING THE COLLECTION OF DATA AND THE PREPARATION OF REPORTS
THEREFROM, RELATING TO THE OPERATION, MAINTENANCE AND ALTERATION OF THE
DEPOT'S PRESENT AND FUTURE FACILITIES, GROUNDS, UTILITIES, ROADS, ETC.
IN THIS REGARD, HE ANALYZES EXISTING PROGRAMS IN TERMS OF THEIR COST AND
EFFECTIVENESS AND HIS REPORTS INCLUDE ALTERNATIVE APPROACHES TO THE
MATTERS UNDER STUDY. HE MAY OR MAY NOT INCLUDE HIS PERSONAL
RECOMMENDATION. IN THIS LATTER REGARD, HOWEVER, THE RECORD REFLECTS
THAT HIS REPORTS ARE REVIEWED BY THE DIVISION CHIEF, BY THE DIRECTORATE
OF INSTALLATION SERVICES, AND, OFTEN, BY THE OFFICE OF PLANNING AND
MANAGEMENT BEFORE ANY FINAL DECISION IS MADE. THE ADMINISTRATIVE
OFFICER ALSO SERVES AS A TECHNICAL ADVISOR TO THE SUPERVISORS WITHIN THE
ORGANIZATION REGARDING THE INTERPRETATION OF ADMINISTRATIVE REGULATIONS
AND, WHEN REQUESTED, HE MAY ASSIST SUPERVISORS IN PREPARING MATERIAL
SUCH AS JOB DESCRIPTIONS. HIS TECHNICAL EXPERTISE, HOWEVER, IS ONE OF
MANY SOURCES AVAILABLE TO SUPERVISORS OR MANAGEMENT AND THEY ARE
RESPONSIBLE FOR MAKING FINAL DECISIONS.
SAFETY SPECIALISTS, OFFICE OF SAFETY AND INDUSTRIAL HEALTH,
DIRECTORATE OF INSTALLATION SERVICES
THE SAFETY SPECIALISTS INVESTIGATE INDIVIDUAL ACCIDENTS AND INJURIES
AND PREPARE REPORTS WHICH INDICATE, AMONG OTHER THINGS, HOW SUCH
OCCURRENCES MIGHT HAVE BEEN PREVENTED. THEY MAKE CONTINUING SURVEYS OF
THE DEPOT'S OPERATIONS TO INSURE THAT THE ESTABLISHED SAFETY PROGRAM IS
BEING ADHERED TO AND THEY NOTE HOW THE PROGRAM MIGHT BE IMPROVED. UNDER
UNUSUAL CIRCUMSTANCES, GIVEN AN IMMEDIATE HAZARD, EMPLOYEES IN THIS
CLASSIFICATION COULD ORDER THAT A WORK LINE BE STOPPED. ALTHOUGH THEY
MAY PARTICIPATE IN THE MEETINGS OF THE DEPOT'S SAFETY COUNCIL, THE
RECORD REVEALS THAT THEY DO NOT ESTABLISH OR HAVE FINAL AUTHORITY IN
DETERMINING THE SAFETY POLICY OF THE ACTIVITY. /4/
MANAGEMENT ANALYSTS, MANAGEMENT CONTROL DIVISION, OFFICE OF PLANNING
AND MANAGEMENT
MANAGEMENT ANALYSTS ARE ASSIGNED TO TWO BRANCHES (THE METHOD AND
STANDARDS BRANCH AND THE ORGANIZATION AND MANPOWER BRANCH) OF THE
MANAGEMENT CONTROL DIVISION OF THE OFFICE OF PLANNING AND MANAGEMENT.
THE PARTIES STIPULATED THAT THERE WERE THREE DISTINGUISHABLE CATEGORIES
OF MANAGEMENT ANALYSTS.
THE FIRST GROUP OF MANAGEMENT ANALYSTS INCLUDES THOSE EMPLOYEES
ASSIGNED TO THE METHODS AND STANDARDS BRANCH WHOSE PRIMARY FUNCTION IS
TO PERFORM DEFENSE INTEGRATED MANAGEMENT ENGINEERING SYSTEM (DIMES)
STUDIES. DIMES IS A WORK MANAGEMENT SYSTEM THAT QUANTIFIES TASKS AT AN
ORGANIZATION LEVEL FOR PERFORMANCE EVALUATION. THE ANALYSTS, BASED ON
PRIOR EXPERIENCE AND OBSERVATIONS AT THE WORK SITE, PREPARE AN ANALYSIS
OF AN OPERATION, ORGANIZATION OR WORK FUNCTION, AND, THEREAFTER, MAKE
RECOMMENDATIONS REGARDING IMPROVEMENTS IN THE FUNCTIONAL WORK FLOW
PROCEDURE, STAFFING PATTERNS, MANPOWER UTILIZATION AND SPACE LAYOUT.
THESE RECOMMENDATIONS THEN ARE REVIEWED BY THE ANALYST'S BRANCH AND
DIVISION CHIEFS. IN THE COURSE OF THE PREPARATION OF THEIR REPORTS AND
RECOMMENDATIONS, THE RECORD REVEALS THAT THE ANALYSTS DISCUSS THE MATTER
WITH THE OPERATING PEOPLE INVOLVED, USUALLY WITH THE DIVISION CHIEFS,
AND THAT SUCH DISCUSSIONS MAY RESULT IN MODIFICATIONS OR CHANGES. A
FINAL REPORT IS SUBMITTED TO THE DIRECTOR OF THE OFFICE OF PLANNING AND
MANAGEMENT. IN THIS REGARD, THE EVIDENCE ESTABLISHES THAT THE FINAL
DECISIONS ON ACCEPTING OR REJECTING THE RECOMMENDATIONS OF AN ANALYST
AND ON IMPLEMENTING SUCH RECOMMENDATIONS DOES NOT RESIDE WITH THE
ANALYST. THE OTHER MANAGEMENT ANALYSTS IN THE METHODS AND STANDARDS
BRANCH, WHOSE INCLUSION IN THE UNIT FOUND APPROPRIATE IS DISPUTED,
PERFORM MANAGEMENT STUDIES WHICH CONCERN THE ROLE WHICH VARIOUS PIECES
OF EQUIPMENT MIGHT PLAY IN IMPROVING EFFICIENCY. AS WITH MANAGEMENT
ANALYSTS WHO PERFORM DIMES STUDIES, ANY RECOMMENDATIONS THESE EMPLOYEES
MAKE ARE SUBJECT TO EXTENSIVE REVIEW BEFORE POSSIBLE APPROVAL AND
IMPLEMENTATION.
THE MANAGEMENT ANALYSTS IN THE ORGANIZATION AND MANPOWER BRANCH MAKE
STUDIES WHICH INVOLVE REVIEWING ORGANIZATIONS, OPERATIONS OR WORK
FUNCTIONS IN TERMS OF DISTRIBUTION OF SKILLS, DISTRIBUTION OF POSITIONS
AND SUPERVISORY RATIOS. IN SOME INSTANCES THEIR RECOMMENDATIONS ARE
GUIDED BY PUBLISHED STANDARDS FOR CERTAIN OPERATIONS, BUT IN OTHER
STUDIES THEY ARE REQUIRED TO CREATE PERFORMANCE STANDARDS WHERE NONE
EXIST. AGAIN, ANY RECOMMENDATION THEY WOULD MAKE WOULD BE SUBJECT TO
EXTENSIVE REVIEW BEFORE POSSIBLE ADOPTION AND IMPLEMENTATION.
SYSTEMS ANALYSTS, SYSTEMS AND PROCEDURES BRANCH, MANAGEMENT CONTROL
DIVISION, OFFICE OF PLANNING AND MANAGEMENT
THESE SYSTEMS ANALYSTS ARE RESPONSIBLE FOR MONITORING, DEVELOPING AND
IMPROVING BROAD SYSTEMS OF OPERATIONS WITHIN A PARTICULAR AREA OF
RESPONSIBILITY. THEY RELATE THE SYSTEM TO AUTOMATIC DATA PROCESSING
TECHNIQUES AND MAKE RECOMMENDATIONS FOR IMPLEMENTING MECHANICAL
OPERATIONS OR IMPROVING MANUAL OPERATIONS. BEFORE A CHANGE IS INITIATED
AS A RESULT OF THEIR RECOMMENDATIONS, IT MUST BE APPROVED BY THEIR CHAIN
OF COMMAND AS WELL AS BY THE PARTICULAR OPERATING DIRECTORATE.
PROGRAM ANALYSTS
THE PARTIES DISPUTED WHETHER FOUR EMPLOYEES CLASSIFIED AS PROGRAM
ANALYSTS SHOULD BE INCLUDED WITHIN THE UNIT FOUND APPROPRIATE. THREE OF
THESE ANALYSTS ARE ASSIGNED TO THE PLANS, PROGRAMS AND ANALYSIS
DIVISION, DIRECTOR OF OFFICE OF PLANNING AND MANAGEMENT.
EDWARD H. PICKERING, GS-11, PLANS, PROGRAMS AND ANALYSIS DIVISION
AFTER A REGULATION HAS BEEN ISSUED BY A HIGHER HEADQUARTERS, OR WHEN
THERE HAS BEEN A DETERMINATION THAT A LOCAL REGULATION IS NEEDED TO
IMPLEMENT LOCAL POLICY, PICKERING DETERMINES WHAT THE AREA OF PRIMARY
INTEREST WITHIN THE DEPOT WILL BE, GUIDED PRIMARILY BY THE ORGANIZATION
FUNCTIONAL MANUAL. HE THEN ASSISTS THE OFFICE OF PRIMARY INTEREST IN
DRAFTING THE REGULATION, REVIEWS IT FOR CONTENTS, POLICY, AND BASIC
PROCEDURE, NEGOTIATES WITH THE OFFICE OF PRIMARY INTEREST REGARDING
DISAGREEMENTS, AND FORWARDS THE REGULATION WITH HIS RECOMMENDATIONS
THROUGH HIS DIRECTORATE TO THE COMMAND, WHICH ISSUES THE REGULATIONS IN
FINAL FORM. THE RECORD REVEALS THAT PICKERING DOES NOT HAVE THE
AUTHORITY TO ISSUE REGULATIONS, ONLY TO PREPARE, COORDINATE AND
INTERPRET THEM.
RICHARD MARTIN, GS-11, PLANS, PROGRAMS, AND ANALYSIS DIVISION
MARTIN IS A PROGRAM ANALYST WHO PRIMARILY IS INVOLVED WITH
COORDINATING PLANS FOR EMERGENCY PREPAREDNESS. ALTHOUGH HE IS
RESPONSIBLE FOR COORDINATING EMERGENCY PLANNING WITH ALL THE
DIRECTORATES OF THE DEPOT, THE PLANS ARE REVIEWED BY HIS SUPERVISOR, BY
THE DIRECTOR OF THE OFFICE OF PLANNING AND MANAGEMENT, AND BY THE
COMMAND.
HAROLD WOLLENBORG, GS-11, PLANS, PROGRAMS AND ANALYSIS DIVISION
WOLLENBORG PREPARES AND PRESENTS COMMAND BRIEFINGS TO THE COMMAND AND
TO VISITING DIGNITARIES. IN THIS REGARD, HE WOULD, IN PREPARATION FOR
THE INSPECTOR GENERAL'S VISIT TO THE DEPOT, REVIEW ANY DISCREPANCIES
NOTED ON THE LAST INSPECTION AND ASCERTAIN WHETHER THE RECOMMENDATIONS
MADE AT THAT TIME HAD BEEN ADHERED TO OR WHETHER THE DEPOT HAD RETURNED
TO ANY PATTERNS CRITICIZED BY THE INSPECTORS.
WALTER NEUSBAUM, GS-11, OFFICE OF THE DIRECTOR, DIRECTORATE OF
INSTALLATION SERVICES
NEUSBAUM FURNISHES MANAGEMENT SUPPORT TO THE DIRECTORATE BY
CONDUCTING STAFF STUDIES, ANALYZING THE DIRECTORATE'S OPERATIONS,
COORDINATING THE DIRECTORATE'S OPERATIONS WITH THE VARIOUS DIVISION
CHIEFS AND MAKING RECOMMENDATIONS FOR MANAGEMENT ACTIONS. THE RECORD
REVEALS THAT ALL OF HIS RECOMMENDATIONS ARE SUBJECT TO THE APPROVAL OF
THE DIRECTOR. HE ALSO REVIEWS ALL REQUESTS FOR PERSONNEL ACTIONS WITHIN
THE DIRECTORATE FOR THE PURPOSE OF DETERMINING WHETHER A VACANCY EXISTS
IN THAT PARTICULAR POSITION, THAT THE FORMS ARE PROPERLY EXECUTED AND TO
ASSURE THAT THE DIRECTORATE IS NOT EXCEEDING ITS MANPOWER AUTHORIZATION.
HOWEVER, HE DOES NOT PREPARE PERSONNEL ACTIONS, NOR DOES HE HAVE
AUTHORITY TO APPROVE PERSONNEL ACTIONS.
THE ASSISTANT SECRETARY HAS HELD THAT A MANAGEMENT OFFICIAL IS AN
EMPLOYEE "HAVING AUTHORITY TO MAKE, OR TO INFLUENCE EFFECTIVELY THE
MAKING OF, POLICY NECESSARY TO THE AGENCY-- WITH RESPECT TO PERSONNEL,
PROCEDURES, OR PROGRAMS," AND THAT IN DETERMINING WHETHER AN INDIVIDUAL
MEETS THIS REQUIREMENT CONSIDERATION SHOULD BE GIVEN TO "WHETHER HIS
ROLE IS THAT OF AN EXPERT OR PROFESSIONAL RENDERING RESOURCE INFORMATION
OR RECOMMENDATIONS-- OR WHETHER HIS ROLE EXTENDS BEYOND THIS TO THE
POINT OF ACTIVE PARTICIPATION IN THE ULTIMATE DETERMINATION AS TO WHAT
THAT POLICY, IN FACT, WILL BE." /5/ THE EVIDENCE ESTABLISHES THAT IN THE
INSTANT CASE NONE OF THE EMPLOYEES IN THE DISPUTED CLASSIFICATIONS
DISCUSSED ABOVE ARE MANAGEMENT OFFICIALS. THUS, THE RECORD REVEALS IN
EACH INSTANCE THAT THE INDIVIDUALS INVOLVED SERVE AS RESOURCE PERSONS
WHOSE RECOMMENDATIONS ARE SUBJECT TO EXTENSIVE REVIEW BEFORE EITHER
ACCEPTANCE OR IMPLEMENTATION AND THAT THEY ARE NOT OFFICIALS WHO
ACTIVELY PARTICIPATE IN THE ULTIMATE DETERMINATION OF WHAT POLICY SHOULD
BE. ACCORDINGLY, I FIND THAT THE EMPLOYEES IN THE AFOREMENTIONED
CLASSIFICATIONS SHOULD NOT BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE
ON THE BASIS THAT THEY ARE MANAGEMENT OFFICIALS.
NOR DOES THE RECORD REFLECT THAT ANY OF THESE EMPLOYEES ARE ENGAGED
IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY. IN
THIS REGARD, THE RECORD INDICATES THAT, ALTHOUGH IN CONNECTION WITH
THEIR DUTIES SOME OF THE EMPLOYEES IN THE DISPUTED CLASSIFICATIONS MAY
MAKE STAFFING RECOMMENDATIONS WHICH COULD ULTIMATELY, AFTER APPROVAL AND
IMPLEMENTATION, AFFECT THE STAFFING OF THE ACTIVITY, THEY ARE NOT
INVOLVED IN THE PROCESSING OF INDIVIDUAL PERSONNEL ACTIONS ON A REGULAR
BASIS AND AS A PART OF THEIR DAY-TO-DAY RESPONSIBILITY. ACCORDINGLY, I
FIND THAT THE EMPLOYEES IN THE AFOREMENTIONED CLASSIFICATIONS ARE NOT
ENGAGED IN FEDERAL PERSONNEL WORK WITHIN THE MEANING OF SECTION 10(B)(2)
OF THE ORDER, AND THEREFORE, SHOULD NOT BE EXCLUDED FROM THE UNIT FOUND
APPROPRIATE ON THIS BASIS.
BASED ON ALL THE FOREGOING CIRCUMSTANCES, I FIND THAT THE FOLLOWING
EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE EXECUTIVE ORDER
11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL GENERAL SCHEDULE EMPLOYEES OF
THE DEFENSE SUPPLY
AGENCY, DEFENSE DEPOT TRACY, TRACY, CALIFORNIA; EXCLUDING GENERAL
SCHEDULE AND WAGE BOARD
EMPLOYEES OF THE DIRECTORATE OF INDUSTRIAL PLANT EQUIPMENT, WAGE
BOARD EMPLOYEES OF THE
PUBLICATIONS BRANCH, GENERAL SCHEDULE EMPLOYEES OF THE TELEPHONE
BRANCH, WAGE BOARD EMPLOYEES
OF THE FACILITIES ENGINEERING DIVISION, GENERAL SCHEDULE EMPLOYEES OF
THE FIRE PROTECTION AND
PREVENTION BRANCH, GENERAL SCHEDULE EMPLOYEES (GS-9 AND BELOW) OF THE
OFFICE OF DATA SYSTEMS,
ALL OTHER WAGE BOARD 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.
IT IS NOTED THAT 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 THE 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 THE UNIT
WITH NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL GENERAL SCHEDULE EMPLOYEES OF THE
DEFENSE SUPPLY AGENCY, DEFENSE DEPOT TRACY, CALIFORNIA; EXCLUDING
GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES OF THE DIRECTORATE OF
INDUSTRIAL PLANT EQUIPMENT, WAGE BOARD EMPLOYEES OF THE PUBLICATIONS
BRANCH, GENERAL SCHEDULE EMPLOYEES OF THE TELEPHONE BRANCH, WAGE BOARD
EMPLOYEES OF THE FACILITIES ENGINEERING DIVISION, GENERAL SCHEDULE
EMPLOYEES OF THE FIRE PROTECTION AND PREVENTION BRANCH, GENERAL SCHEDULE
EMPLOYEES (GS-9 AND BELOW) OF THE OFFFICE OF DATA SYSTEMS, ALL OTHER
WAGE BOARD EMPLOYEES, 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 GENERAL SCHEDULE EMPLOYEES OF
THE DEFENSE SUPPLY AGENCY, DEFENSE DEPOT TRACY, TRACY, CALIFORNIA;
EXCLUDING GENERAL SCHEDULE AND WAGE BOARD EMPLOYEES OF THE DIRECTORATE
OF INDUSTRIAL PLANT EQUIPMENT, WAGE BOARD EMPLOYEES OF THE PUBLICATIONS
BRANCH, GENERAL SCHEDULE EMPLOYEES OF THE TELEPHONE BRANCH, WAGE BOARD
EMPLOYEES OF THE FACILITIES ENGINEERING DIVISION, GENERAL SCHEDULE
EMPLOYEES OF THE FIRE PROTECTION AND PREVENTION BRANCH, GENERAL SCHEDULE
EMPLOYEES (GS-9 AND BELOW) OF THE OFFICE OF DATA SYSTEMS, ALL OTHER WAGE
BOARD EMPLOYEES, 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.
THE EMPLOYEES IN THE NONPROFESSIONAL VOTING GROUP (B) WILL BE POLLED
WHETHER THEY DESIRE TO BE REPRESENTED BY THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2029; BY THE LABORERS
INTERNATIONAL UNION, AFL-CIO, LOCAL 1276; OR BY NEITHER.
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 THEY WISH TO BE REPRESENTED FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO; LOCAL 2029, THE LABORERS INTERNATIONAL UNION,
AFL-CIO, LOCAL 1276; OR BY NEITHER. IN THE EVENT THAT THE MAJORITY OF
THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF INCLUSION IN
THE SAME UNIT AS THE 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 THE 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 THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2029; THE
LABORERS INTERNATIONAL UNION, AFL-CIO, LOCAL 1276; OR NEITHER 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 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 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 GENERAL SCHEDULE EMPLOYEES OF
THE DEFENSE SUPPLY
AGENCY, DEFENSE DEPOT TRACY, TRACY, CALIFORNIA; EXCLUDING GENERAL
SCHEDULE AND WAGE BOARD
EMPLOYEES OF THE DIRECTORATE OF INDUSTRIAL PLANT EQUIPMENT, WAGE
BOARD EMPLOYEES OF THE
PUBLICATIONS BRANCH, GENERAL SCHEDULE EMPLOYEES OF THE TELEPHONE
BRANCH, WAGE BOARD EMPLOYEES
OF THE FACILITIES ENGINEERING DIVISION, GENERAL SCHEDULE EMPLOYEES OF
THE FIRE PROTECTION AND
PREVENTION BRANCH, GENERAL SCHEDULE EMPLOYEES (GS-9 AND BELOW) OF THE
OFFICE OF DATA SYSTEMS,
ALL OTHER WAGE BOARD 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 CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL PROFESSIONAL GENERAL SCHEDULE EMPLOYEES OF THE DEFENSE SUPPLY
AGENCY, DEFENSE DEPOT
TRACY, TRACY, CALIFORNIA; EXCLUDING GENERAL SCHEDULE AND WAGE BOARD
EMPLOYEES OF THE
DIRECTORATE OF INDUSTRIAL PLANT EQUIPMENT, WAGE BOARD EMPLOYEES OF
THE PUBLICATIONS BRANCH,
GENERAL SCHEDULE EMPLOYEES OF THE TELEPHONE BRANCH, WAGE BOARD
EMPLOYEES OF THE FACILITIES
ENGINEERING DIVISION, GENERAL SCHEDULE EMPLOYEES OF THE FIRE
PROTECTION AND PREVENTION BRANCH,
GENERAL SCHEDULE EMPLOYEES (GS-9 AND BELOW) OF THE OFFICE OF DATA
SYSTEMS, ALL OTHER WAGE
BOARD EMPLOYEES, 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 GENERAL SCHEDULE EMPLOYEES OF THE DEFENSE
SUPPLY AGENCY, DEFENSE
DEPOT TRACY, TRACY, CALIFORNIA; EXCLUDING GENERAL SCHEDULE AND WAGE
BOARD EMPLOYEES OF THE
DIRECTORATE OF INDUSTRIAL PLANT EQUIPMENT, WAGE BOARD EMPLOYEES OF
THE PUBLICATIONS BRANCH,
GENERAL SCHEDULE EMPLOYEES OF THE TELEPHONE BRANCH, WAGE BOARD
EMPLOYEES OF THE FACILITIES
ENGINEERING DIVISION, GENERAL SCHEDULE EMPLOYEES OF THE FIRE
PROTECTION AND PREVENTION BRANCH,
GENERAL SCHEDULE EMPLOYEES (GS-9 AND BELOW) OF THE OFFICE OF DATA
SYSTEMS, ALL OTHER WAGE
BOARD EMPLOYEES, 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 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 DATA. THOSE ELIGIBLE SHALL VOTE WHETHER THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2029; BY THE
LABORERS INTERNATIONAL UNION, AFL-CIO, LOCAL 1276; OR BY NEITHER.
DATED, WASHINGTON, D.C.
APRIL 30, 1974
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ THE NAME OF THE INTERVENOR APPEARS AS AMENDED AT THE HEARING.
/3/ AS THERE IS NO RECORD EVIDENCE WITH RESPECT TO THE CLAIMS
OFFICER, I MAKE NO FINDING WITH RESPECT TO THE INCLUSION OR EXCLUSION IN
THE UNIT FOUND APPROPRIATE OF THE EMPLOYEE IN THIS CLASSIFICATION. AT
THE HEARING, THE PARTIES STIPULATED THAT THE DISTRIBUTION FACILITIES
SPECIALISTS (TRAINING) SHOULD BE INCLUDED IN THE UNIT FOUND APPROPRIATE
BECAUSE THEY WERE NOT MANAGEMENT OFFICIALS, SUPERVISORS OR EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY. AS THERE IS NO RECORD EVIDENCE TO THE CONTRARY, I FIND THAT
EMPLOYEES IN THIS CLASSIFICATION SHOULD BE INCLUDED IN THE UNIT FOUND
APPROPRIATE.
/4/ ALTHOUGH THE INDIVIDUAL WHO TESTIFIED AT THE HEARING AS TO THE
NATURE OF THIS POSITION WAS SERVING TEMPORARILY AS ACTING CHIEF OF THE
OFFICE OF SAFETY AND INDUSTRIAL HEALTH, AND PRESENTLY IS THE ONLY SAFETY
SPECIALIST EMPLOYED, THE ELIGIBILITY DETERMINATION, SET FORTH BELOW, IS
BASED ON THE EVIDENCE ADDUCED AS TO THE NORMAL RESPONSIBILITIES OF THE
SAFETY SPECIALISTS.
/5/ SEE DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
4 A/SLMR 385; P. 293; CASE NO. 22-3808(CA); APRIL 30, 1974.
VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION CENTER,
HAMPTON, VIRGINIA
A/SLMR NO. 385
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
R4-17, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (COMPLAINANT),
AGAINST THE VETERANS ADMINISTRATION, VETERANS ADMINISTRATION CENTER,
HAMPTON, VIRGINIA, (RESPONDENT) ALLEGING THAT THE LATTER HAD VIOLATED
SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 BY FAILING TO NOTIFY THE
COMPLAINANT OF A CHANGE IN THE PROMOTION POLICY EXTANT AT THE CENTER.
ON NOVEMBER 14, 1971, THE RESPONDENT ADOPTED A POLICY OF SUSPENDING
THE PROMOTIONS OF ALL GENERAL SCHEDULE (GS) EMPLOYEES SO AS TO REDUCE
THE AVERAGE GRADE OF SUCH GS EMPLOYEES. THIS POLICY WAS INSTITUTED IN
ACCORDANCE WITH OFFICE OF MANAGEMENT AND BUDGET AND VETERANS
ADMINISTRATION DIRECTIVES REQUIRING REDUCTIONS IN THE AVERAGE GRADE OF
GS EMPLOYEES ON A FEDERAL GOVERNMENT AND AN AGENCY WIDE SCALE. ON JUNE
12, 1972, THE VETERANS ADMINISTRATION MODIFIED ITS POLICY BY DIRECTING
ITS FACILITIES TO PROMOTE ALL EMPLOYEES IN CATEGORY ONE, I.E. EMPLOYEES
IN TRAINING POSITIONS WHOSE PROMOTIONS HAD BEEN SUSPENDED DURING THE
FREEZE. THE COMPLAINANT WAS AFFORDED PRIOR NOTIFICATION OF THIS
MODIFICATION IN THE RESPONDENT'S PROMOTION POLICY. FURTHER,
REPRESENTATIVES OF THE RESPONDENT LEFT THE COMPLAINANT WITH THE
IMPRESSION, WHICH THE LATTER COMMUNICATED TO CERTAIN UNIT EMPLOYEES,
THAT FURTHER PROMOTIONS WERE UNLIKELY WITHIN THE NEAR FUTURE. ON JUNE
23, 1972, THE VETERANS ADMINISTRATION DIRECTED ITS FACILITIES TO
PROMOTE, BY JUNE 30, 1972, THOSE EMPLOYEES LISTED IN CATEGORY TWO, I.E.,
THOSE "DESERVING OF PROMOTION." THE RESPONDENT, WITHOUT NOTIFYING THE
COMPLAINANT OF THIS FURTHER MODIFICATION IN THE PROMOTION POLICY,
IMPLEMENTED THE SECOND GROUP OF PROMOTIONS. THE COMPLAINANT LEARNED OF
THE JUNE 23, 1972 MODIFICATION ONLY AFTER THOSE PROMOTIONS WERE
IMPLEMENTED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT SECRETARY
FOUND THAT THE RESPONDENT'S FAILURE TO NOTIFY THE COMPLAINANT OF ITS
CHANGE IN POLICY WITH RESPECT TO THE PROMOTION OF CATEGORY TWO EMPLOYEES
CONSTITUTED A VIOLATION OF SECTION 19(A)(6). IN THIS REGARD, HE
CONCLUDED THAT THE RESPONDENT'S FAILURE TO INFORM THE COMPLAINANT OF THE
DECISION TO PROMOTE CATEGORY TWO EMPLOYEES AND ITS ACTION IN PROMOTING
SUCH EMPLOYEES WITHOUT ADVISING THE COMPLAINANT UNTIL AFTER THE
PROMOTION HAD, IN FACT, OCCURRED UNDERMINED THE COMPLAINANT AND SERVED
TO DISPARAGE IT IN THE EYES OF THE UNIT EMPLOYEES. UNDER THESE
CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THIS DISREGARD AND
BY-PASS OF THE COMPLAINANT WAS IN DEROGATION OF ITS EXCLUSIVE
REPRESENTATIVE STATUS AND THEREBY VIOLATED SECTION 19(A)(6) OF THE
ORDER.
ACCORDINGLY, 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.
VETERANS ADMINISTRATION,
VETERANS ADMINISTRATION CENTER,
HAMPTON, VIRGINIA
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R4-17
ON FEBRUARY 27, 1974, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON 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 CONFIRMED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION, 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 ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(6) OF THE ORDER BY FAILING AND REFUSING TO CONSULT AND CONFER WITH
THE COMPLAINANT REGARDING A CHANGE IN THE RESPONDENT'S PROMOTION POLICY.
THE ESSENTIAL FACTS ARE NOT IN DISPUTE AND I SHALL REPEAT THEM ONLY
TO THE EXTENT DEEMED NECESSARY.
IN THE FALL OF 1971, THE OFFICE OF MANAGEMENT AND BUDGET INSTITUTED A
PROGRAM AIMED AT REDUCING THE AVERAGE GRADE OF GENERAL SCHEDULE (GS)
EMPLOYEES AT THE FEDERAL GOVERNMENT. EACH AGENCY, INCLUDING THE
VETERANS ADMINISTRATION, WAS GIVEN A TARGET AVERAGE GRADE WHICH THEY
WERE TO REACH. IN TURN, THE VETERANS ADMINISTRATION SET AVERAGE GRADE
TARGETS FOR EACH OF ITS FACILITIES, BUT LEFT THE FACILITIES CERTAIN
FLEXIBILITY IN THE MEANS OF REACHING THEIR PARTICULAR TARGETS. TO MEET
ITS TARGET, THE DIRECTOR OF THE RESPONDENT FACILITY SUSPENDED ALL GS
PROMOTIONS AT THE FACILITY AS OF NOVEMBER 14, 1971.
IN MAY 1972, THE CENTRAL OFFICE OF THE VETERANS ADMINISTRATION
DIRECTED EACH OF ITS FACILITIES, INCLUDING THE RESPONDENT HEREIN, TO
PREPARE AND SUBMIT A REPORT INDICATING THE NUMBER OF EMPLOYEES IN TWO
CATEGORIES-- I.E. CATEGORY ONE, EMPLOYEES WHO WERE IN TRAINING POSITIONS
AND WHO, BUT FOR THE FREEZE, WOULD HAVE BEEN PROMOTED AT THE COMPLETION
OF TRAINING; AND CATEGORY TWO, EMPLOYEES WHO WERE "DESERVING OF
PROMOTION." ON JUNE 12, 1972, THE RESPONDENT WAS DIRECTED BY THE CENTRAL
OFFICE TO PROMOTE CATEGORY ONE EMPLOYEES. THAT SAME DATE, AT A MEETING
ATTENDED BY, AMONG OTHERS, SOME OF THE EMPLOYEES WHOSE PROMOTIONS WERE
AFFECTED BY THE FREEZE AND BY THE PRESIDENT OF THE COMPLAINANT, A
REPRESENTATIVE OF THE RESPONDENT EXPLAINED WHY CERTAIN EMPLOYEES WERE
BEING PROMOTED AT THAT TIME. ADDITIONALLY, THE RESPONDENT'S
REPRESENTATIVE EXPRESSED DOUBT THAT ANY FURTHER LIFTING OF THE FREEZE
WOULD OCCUR WITHIN THE NEAR FUTURE. SUBSEQUENTLY, THE COMPLAINANT'S
PRESIDENT COMMUNICATED THIS LATTER IMPRESSION TO UNION OFFICERS AND
STEWARDS, AS WELL AS INQUIRING MEMBERS, AND ALSO COMMUNICATED THIS
UNDERSTANDING AT THE FIRST GENERAL MEMBERSHIP MEETING OF THE COMPLAINANT
IN JULY 1972. MEANWHILE, ON JUNE 23, 1972, THE RESPONDENT RECEIVED A
TELEGRAM FROM ITS CENTRAL OFFICE DIRECTING IT TO PROMOTE, BY THE END OF
THE FISCAL YEAR ON JUNE 30, 1972, ALL THOSE EMPLOYEES LISTED IN CATEGORY
TWO. THE RESPONDENT IMPLEMENTED THIS DIRECTIVE WITHOUT INFORMING THE
COMPLAINANT OF THE CHANGE IN THE PROMOTION POLICY EXTANT AT THE CENTER
AND THE COMPLAINANT'S PRESIDENT ONLY BECAME AWARE OF THESE LATTER
PROMOTIONS ABOUT JULY 7 OR 8, 1972, WHEN HE LEARNED THAT SUCH PROMOTIONS
HAD, IN FACT, OCCURRED. BY LETTER DATED AUGUST 8, 1972, THE RESPONDENT
FORMALLY INFORMED THE COMPLAINANT REGARDING ALL OF THE PROMOTIONS MADE
IN JUNE 1972.
IN HIS REPORT AND RECOMMENDATIONS, THE ADMINISTRATIVE LAW JUDGE
FOUND, AMONG OTHER THINGS, THAT THE RESPONDENT'S FAILURE TO NOTIFY THE
COMPLAINANT OF THE PROMOTION OF THE CATEGORY TWO EMPLOYEES DID NOT
CONSTITUTE A VIOLATION OF SECTION 19(A)(6) OF THE ORDER, ALTHOUGH THIS
FAILURE CONTRIBUTED TO MAKING THE COMPLAINANT "APPEAR INEPT AND
INEFFECTIVE...SERVED TO DISPARAGE IT...(AND) UNDERMINE(D) ITS SUPPORT
AMONG UNIT EMPLOYEES." IN REACHING HIS DECISION IN THIS REGARD, HE NOTED
THAT THE RESPONDENT'S RELATIONSHIP WITH THE COMPLAINANT WAS AMICABLE,
THAT THERE WAS NO INDICATION OF UNION ANIMUS, THAT THE FAILURE TO MAKE
THE NOTIFICATION WAS UNINTENTIONAL, AND THAT MANAGEMENT OFFICIALS
REGRETTED IT. UNDER THESE CIRCUMSTANCES AND NOTING ALSO THAT THE
CATEGORY TWO PROMOTIONS WERE CONSISTENT WITH PRIOR PROCEDURES AND THAT
THE COMPLAINANT HAD NOT PREVIOUSLY SOUGHT INFORMATION OR NEGOTIATION
WITH RESPECT TO THE CHARACTER OF THE EMPLOYEES PLACED IN CATEGORY TWO,
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THERE WAS NO DUTY TO INFORM THE
COMPLAINANT THAT THE FREEZE, WITH RESPECT TO THE EMPLOYEES IN CATEGORY
TWO, HAD BEEN LIFTED.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT, UNDER THE
CIRCUMSTANCES OF THIS CASE, THE RESPONDENT'S FAILURE TO NOTIFY THE
COMPLAINANT OF THE CHANGE OF POLICY WITH RESPECT TO CATEGORY TWO
EMPLOYEES CONSTITUTED A VIOLATION OF SECTION 19(A)(6). THUS, IT HAS
BEEN HELD PREVIOUSLY THAT ONCE A BARGAINING REPRESENTATIVE HAS BEEN
DESIGNATED BY A MAJORITY OF THE EMPLOYEES IN AN APPROPRIATE BARGAINING
UNIT, THE OBLIGATION TO DEAL WITH SUCH REPRESENTATIVE CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF UNIT EMPLOYEES BECOMES EXCLUSIVE AND CARRIES
WITH IT A CORRELATIVE DUTY NOT TO TREAT WITH OTHERS. /1/ FURTHER, IT
HAS BEEN FOUND THAT TO DISREGARD THE EXCLUSIVE REPRESENTATIVE SELECTED
BY A MAJORITY OF EMPLOYEES 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 BARGAINING
REPRESENTATIVE. IN THE INSTANT CASE, AS FOUND BY THE ADMINISTRATIVE LAW
JUDGE, THE EVIDENCE ESTABLISHES THAT THE RESPONDENT'S FAILURE TO INFORM
THE COMPLAINANT OF THE DECISION TO PROMOTE CATEGORY TWO EMPLOYEES AND
ITS ACTION IN PROMOTING SUCH EMPLOYEES WITHOUT ADVISING THE COMPLAINANT
UNTIL AFTER THE PROMOTIONS HAD, IN FACT, OCCURRED, UNDERMINED THE
COMPLAINANT AND SERVED TO DISPARAGE IT IN THE EYES OF THE UNIT
EMPLOYEES. CONSISTENT WITH THE PRINCIPLES SET FORTH ABOVE, I FIND THAT
THIS DISREGARD AND BY-PASS OF THE EXCLUSIVE REPRESENTATIVE WAS IN
DEROGATION OF THE EXCLUSIVE REPRESENTATIVE'S RIGHTS ESTABLISHED UNDER
THE ORDER AND, THEREBY, CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF
THE ORDER. /2/
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)( 6) OF EXECUTIVE ORDER 11491, AS AMENDED,
/3/ I SHALL ORDER THAT THE RESPONDENT CEASE AND DESIST THEREFROM AND
TAKE CERTAIN AFFIRMATIVE ACTIONS, AS SET FORTH BELOW, DESIGNED TO
EFFECTUATE THE POLICIES OF THE ORDER.
PURSUANT TO SECTION 6(B) OF THE 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, VETERANS ADMINISTRATION CENTER, HAMPTON, VIRGINIA,
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING TO NOTIFY LOCAL R4-17, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING CHANGES IN
EXISTING PROMOTION POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE PURPOSES
AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) NOTIFY LOCAL R4-17, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGES IN
EXISTING PROMOTION POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
THE WORKING CONDITIONS OF EMPLOYEES IN THE UNIT.
(B) POST AT THE VETERANS ADMINISTRATION CENTER, HAMPTON, VIRGINIA,
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
CENTER 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 DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY
ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.26 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.
APRIL 30, 1974
/1/ SEE 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.
/2/ UNDER THE CIRCUMSTANCES OF THIS CASE, I VIEW IT AS IMMATERIAL,
FOR THE PURPOSE OF FINDING A VIOLATION OF SECTION 19(A)(6) OF THE ORDER,
THAT THE RESPONDENT'S CONDUCT HEREIN WAS UNINTENTIONAL OR DEVOID OF
UNION ANIMUS.
/3/ IN THE CIRCUMSTANCES OF THE CASE, I FIND IT UNNECESSARY TO PASS
UPON THE ADMINISTRATIVE LAW JUDGE'S IMPLICATION, ON PAGE 9 OF HIS REPORT
AND RECOMMENDATIONS, THAT A "DECISION" MADE AT A HEADQUARTERS AND WHICH
APPLIES UNIFORMLY TO ALL SUBORDINATE FACILITIES AUTOMATICALLY REMOVES
SUCH SUBJECT FROM LOCAL NEGOTIATIONS.
WE WILL NOT IMPLEMENT CHANGES IN EXISTING PROMOTION POLICIES AND
PRACTICES, OR OTHER MATTERS AFFECTING THE WORKING CONDITIONS OF
EMPLOYEES IN THE UNIT WITHOUT AFFORDING LOCAL R4-17, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, PRIOR NOTIFICATION OF SUCH CHANGES.
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, U.S. DEPARTMENT OF LABOR WHOSE
ADDRESS IS: 14120 GATEWAY BUILDING, 3535 MARKET STREET, PHILADELPHIA,
PENNSYLVANIA 19104.
IN THE MATTER OF
VETERANS ADMINISTRATION
VETERANS ADMINISTRATION CENTER
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-17
ROBERT E. COY, ASSISTANT GENERAL COUNSEL
STEPHEN L. SHOCHET, ESQUIRE
VETERANS ADMINISTRATION
OFFICE OF GENERAL COUNSEL
WASHINGTON, D.C. 20420
ROGER P. KAPLAN, ESQUIRE
GENERAL COUNSEL
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-17
SUITE 512, 1341 G STREET, N.W.
WASHINGTON, D.C. 20005
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED, WAS HEARD
PURSUANT TO A NOTICE OF HEARING ISSUED ON MAY 4, 1973, BY THE REGIONAL
ADMINISTRATOR, U.S. DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, PHILADELPHIA REGION. THE COMPLAINT HERE INVOLVED WAS
FILED ON NOVEMBER 21, 1972, BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-17 (HEREIN CALLED THE UNION), AGAINST THE VETERANS
ADMINISTRATION CENTER, HAMPTON, VIRGINIA (HEREIN CALLED THE ACTIVITY).
THE COMPLAINT CHARGES THAT THE ACTIVITY VIOLATED SEC. 19(A)(6) OF THE
ORDER /1/ BY FAILING AND REFUSING TO CONSULT AND CONFER WITH THE UNION
REGARDING A CHANGE IN THE PROMOTION POLICY IN EFFECT AT THE ACTIVITY.
/2/
A HEARING WAS HELD BEFORE ME ON JULY 10, 1973, AT NORFOLK, VIRGINIA.
BOTH PARTIES WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
OPPORTUNITY TO ADDUCE EVIDENCE AND TO EXAMINE AND CROSS-EXAMINE
WITNESSES; THEREAFTER BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
UPON THE ENTIRE RECORD AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. THE UNION IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
APPROXIMATELY 500 GENERAL SERVICE (GS) EMPLOYEES AT THE ACTIVITY. AT
THE TIME OF THE VIOLATION ALLEGED IN THE COMPLAINT EMPLOYMENT RELATIONS
BETWEEN THE PARTIES WERE GOVERNED BY A COLLECTIVE BARGAINING AGREEMENT
WHICH WAS APPROVED ON AUGUST 2, 1966. /3/ IN JANUARY 1973 THE PARTIES
ENTERED INTO A NEW CONTRACT SUPERSEDING THE OLD.
2. IN THE FALL OF 1971 THE OFFICE OF MANAGEMENT AND BUDGET (OMB)
INSTITUTED A PROGRAM OF GRADE DE-ESCALATION FOR ALL GS EMPLOYEES IN THE
FEDERAL GOVERNMENT. PURSUANT TO DIRECTIONS FROM OMB, THE CENTRAL OFFICE
OF THE VETERANS ADMINISTRATION (VA) ESTABLISHED AVERAGE GRADE TARGETS
FOR EACH VA INSTALLATION TO LOWER THE AVERAGE GRADE LEVEL IN THE
ADMINISTRATION.
3. AS PART OF THE PROGRAM OF THE VA TO REDUCE GRADE LEVELS, THE
ACTIVITY WAS INSTRUCTED THAT IT WOULD HAVE TO EFFECT A RELATIVELY LARGE
REDUCTION IN ITS AVERAGE GRADE FROM 5.6044 TO 5.3628. ON NOVEMBER 2,
1971, MR. A. W. STRATTON, DIRECTOR OF THE ACTIVITY, ISSUED A MEMORANDUM
/4/ WHEREIN HE ADVISED SUPERVISORY PERSONNEL OF THE AVERAGE GRADE GOAL
SET FOR THE ACTIVITY AND DIRECTED THAT CERTAIN PROCEDURES BE ADOPTED TO
EFFECT THE STATED GOAL. UNDER THE MEMORANDUM PROMOTIONS WOULD STILL BE
MADE, BUT WITH LESS FREQUENCY AND ONLY AFTER THOROUGH REVIEW AND
CONSIDERATION.
4. ON NOVEMBER 23, 1971, MR. STRATTON CALLED A MEETING OF DIVISION
AND SERVICE CHIEFS FOR THE PURPOSE OF EXPLAINING TO THEM THE ACTIVITY'S
POLICY REGARDING THE GRADE DE-ESCALATION GOALS. MR. MERLIA DAVIS,
PRESIDENT OF LOCAL R4-17, WAS PRESENT AT THE MEETING.
THE MINUTES OF THE NOVEMBER 23 MEETING, PREPARED BY THE DIRECTOR'S
SECRETARY, RECORDED THE ANNOUNCEMENTS REGARDING PROMOTIONS AS FOLLOWS:
1. WE HAVE SUSPENDED ALL PROMOTIONS (GS) THAT HAVE AN EFFECTIVE DATE
SUBSEQUENT TO NOVEMBER 14.
2. THERE WILL BE NO PROMOTION (GS) UNTIL FURTHER NOTICE, AND THE
ONLY EXCEPTION THAT THE DIRECTOR MENTIONED WAS POSSIBLY HONORING LEGAL
COMMITMENTS. /5/
5. ON DECEMBER 7, 1971, MR. STRATTON MADE AVAILABLE TO ALL DIVISION
AND SERVICE CHIEFS A VERBATIM COPY OF ANOTHER CIRCULAR FROM THE CENTRAL
OFFICE. /6/ THIS CIRCULAR ESTABLISHED REQUIREMENTS REGARDING THE GRADE
DE-ESCALATION PROGRAM TO BE APPLIED AT THE ACTIVITY. AS TO PROMOTIONS
THE CIRCULAR AUTHORIZED MR. STRATTON, AS STATION DIRECTOR, TO APPROVE
UPWARD CLASSIFICATIONS TO GS-5 AND BELOW, WITH CERTIFICATION THAT SUCH
UPGRADING WAS "ESSENTIAL." OTHER PROMOTIONS HAD TO BE PASSED UPON BY
HIGHER AUTHORITY. TOTAL RESTRICTIONS ON PROMOTIONS WERE ADVISED WHERE
OTHER PRACTICES AIMED AT AVERAGE GRADE REDUCTION WOULD BE UNSUCCESSFUL.
THE CIRCULAR HAD AN EXPIRATION DATE OF JULY 31, 1972.
6. BECAUSE OF THE LARGE AVERAGE GRADE REDUCTION TO BE MADE AT THE
ACTIVITY, MANAGEMENT DETERMINED THAT A FREEZE ON PROMOTIONS WAS REQUIRED
AND SUCH POLICY WAS THEREFORE INSTITUTED. /7/
7. THE VA CENTRAL OFFICE MONITORED THE PROGRESS OF EACH OF ITS
INSTALLATIONS AND OF THE ENTIRE AGENCY BY REQUIRING EACH INSTALLATION TO
FURNISH THE NUMBER OF EMPLOYEES AT EACH GS GRADE LEVEL. ON A WEEKLY
BASIS ANY ACCESSIONS, SEPARATIONS OR OTHER CHANGES WERE TO BE REPORTED
IN THE SAME WAY. THIS INFORMATION WAS FED TO COMPUTERS SO THAT, SHORTLY
AFTER THE END OF EACH MONTH, EACH INSTALLATION WAS MADE AWARE OF ITS
CURRENT POSITION VIS-A-VIS ITS GOAL.
ACCORDING TO THE TESTIMONY OF MR. JAMES RIESMEYER, /8/ CHIEF OF THE
PERSONNEL DIVISION OF THE ACTIVITY, THE CENTRAL OFFICE IN MAY OF 1972
REQUESTED OF THE ACTIVITY THAT IT PREPARE AND SUBMIT A REPORT SUPPLYING
THE NUMBERS OF EMPLOYEES ASSIGNABLE TO EITHER OF TWO CATEGORIES
ACCORDING TO CRITERIA PROVIDED. CATEGORY ONE EMPLOYEES WERE TRAINEES
WHO, BUT FOR THE PROMOTION FREEZE, WOULD HAVE BEEN PROMOTED UPON
COMPLETION OF TRAINING. CATEGORY TWO INCLUDED OTHER EMPLOYEES
"DESERVING OF PROMOTION," WHICH TERM WAS CONSTRUED BY ACTIVITY
MANAGEMENT TO DESCRIBE EMPLOYEES WHO HAD COMPLETED THEIR TIME IN GRADE
AND WERE FOUND BY THEIR SUPERVISORS AND THE PERSONNEL OFFICE TO BE
PERFORMING AT A HIGHER GRADE LEVEL. WHILE THE CRITERIA FOR PLACEMENT
INTO CATEGORY ONE WERE QUITE STRICT, THOSE OF CATEGORY TWO GAVE THE
ACTIVITY CONSIDERABLE DISCRETION IN DETERMINING WHO SHOULD BE INCLUDED.
THE PERSONNEL DIVISION PREPARED AND FORWARDED THE REQUIRED REPORT TO
THE CENTRAL OFFICE. /9/ IN ADDITION TO THE TWO CATEGORIES ABOVE
DESCRIBED, THE ACTIVITY ESTABLISHED A THIRD CATEGORY TO INCLUDE
EMPLOYEES WHOSE PERFORMANCE NEEDED ADDITIONAL INVESTIGATION BEFORE A
DETERMINATION COULD BE MADE AS TO WHETHER TO PLACE THEM IN CATEGORY TWO.
WHEN ASSIGNMENTS TO THE SEVERAL CATEGORIES WERE COMPLETED CATEGORY ONE
HELD 25 EMPLOYEES, CATEGORY TWO, 11, AND CATEGORY THREE, 8.
8. DURING THE MORNING OF JUNE 12, 1972, THE ACTIVITY RECEIVED A WIRE
FROM THE CENTRAL OFFICE ORDERING THAT ALL EMPLOYEES LISTED IN CATEGORY
ONE BE PROMOTED. THE ORDER CAME AS A SURPRISE TO THE ACTIVITY WHICH HAD
NOT YET ACHIEVED ITS AVERAGE GRADE GOAL AND WHICH WAS ANTICIPATING AN
EXTENDED PROMOTION FREEZE PERIOD. THAT WIRE IS NOT IN EVIDENCE. MR.
RIESMEYER TESTIFIED THAT HE THOUGHT IT WAS ADDRESSED TO ALL VA
HOSPITALS.
9. IN ORDER TO ANNOUNCE AND EXPLAIN THE PROMOTION DIRECTIVE TO
SUPERVISORS AND EMPLOYEES AND TO DEFUSE POSSIBLE RESENTMENT IN EMPLOYEES
OTHER THAN THOSE PROMOTED, MR. RIESMEYER CALLED A HASTILY CONVENED
MEETING OF AS MANY SUPERVISORS, CATEGORY TWO, AND CATEGORY THREE
EMPLOYEES AS COULD BE GATHERED TOGETHER. MR. DAVIS, REPRESENTING THE
UNION, WAS ALSO IN ATTENDANCE. MR. RIESMEYER INFORMED THE 25 OR 30
PEOPLE ASSEMBLED THAT TRAINEES, AS CATEGORY ONE EMPLOYEES, WERE TO BE
PROMOTED EFFECTIVE JUNE 11, 1972. HE THEN TOLD THE GROUP WHAT CRITERIA
WERE EMPLOYED TO DETERMINE PLACEMENT IN CATEGORY ONE AND EXPLAINED THE
DIFFERENCE BETWEEN CATEGORIES ONE AND TWO. MR. RIESMEYER EXPLAINED THAT
IT WAS "HIGHLY UNLIKELY" THAT THERE WOULD BE ANY ADDITIONAL PROMOTIONS
DURING THE REMAINDER OF THAT FISCAL YEAR. /10/ THERE IS NO EVIDENCE
THAT THE UNION HAD PREVIOUSLY BEEN MADE AWARE OF THESE CATEGORIES, OR OF
THE REQUIREMENT THAT REPORTS CONCERNING THEM BE FORWARDED TO THE CENTRAL
OFFICE. NOR IS THERE ANY EVIDENCE THAT MR. DAVIS, WHEN INFORMED ON JUNE
12 OF THE PROMOTION OF 25 TRAINEES, REGISTERED ANY OBJECTION OR SOUGHT
ANY DISCUSSION CONCERNING THE PRIORITY ACCORDED TRAINEES IN THIS PARTIAL
LIFTING OF THE FREEZE.
10. ON JUNE 23, 1972, THE ACTIVITY RECEIVED ANOTHER UNEXPECTED WIRE
FROM THE VA CENTRAL OFFICE. /11/ THE WIRE, ADDRESSED TO TEN VA CENTERS
INCLUDING HAMPTON, DIRECTED ACTIVITY MANAGEMENT TO PROMOTE ALL PERSONNEL
LISTED IN CATEGORY TWO.
IT REQUIRED THAT ACTION TO EFFECTUATE THE ORDER BE COMPLETED ON OR
BEFORE JUNE 30, 1972, AND DIRECTED THAT THE PREVIOUSLY ESTABLISHED
AVERAGE GRADE GOALS BE IGNORED FOR PURPOSES OF COMPLYING WITH THE ORDER.
11. UPON RECEIPT OF THE JUNE 23 WIRE, MR. STRATTON, MR. RIESMEYER,
AND OTHER MANAGEMENT OFFICIALS AT THE ACTIVITY IMMEDIATELY TOOK THE
NECESSARY ACTIONS TO PROMOTE THE 11 EMPLOYEES LISTED IN CATEGORY TWO,
ACTING WITH DISPATCH TO COMPLY WITH THE TIME LIMITATION. NEITHER MR.
DAVIS NOR ANY OTHER UNION OFFICER WAS INFORMED OF THE RECEIPT OF THE
JUNE 23 WIRE OR THE ACTION TAKEN THEREUNDER.
12. MEANWHILE, UNION PRESIDENT DAVIS, RELYING ON HIS UNDERSTANDING
OF MR. RIESMEYER'S REMARKS ON JUNE 12, HAD INFORMED OTHER UNION OFFICERS
AND STEWARDS, AS WELL AS INQUIRING MEMBERS, THAT THE FREEZE ON
PROMOTIONS WOULD CONTINUE INTO THE FOLLOWING FISCAL YEAR. AT THE FIRST
GENERAL MEMBERSHIP MEETING IN JULY, HE SO INFORMED HIS CONSTITUENCY. HE
CONTINUED TO SET "RUMORS" TO THE CONTRARY TO REST UNTIL ABOUT JULY 7 OR
8 WHEN HE LEARNED THAT PROMOTIONS OF NONTRAINEES HAD IN FACT OCCURRED.
HE TESTIFIED THAT THE MEMBERSHIP FELT HE HAD MISLED THEM, DECEIVED THEM,
EVEN "SOLD THEM DOWN THE RIVER." WHEN OFFICIALLY INFORMING HIM OF THE
PROMOTIONS, MR. RIESMEYER ADMITTED THAT THE FAILURE TO ADVISE HIM OF
THE DIRECTIVE CONCERNING PROMOTION OF THE 11 EMPLOYEES IN CATEGORY TWO
WAS AN OVERSIGHT. BY LETTER OF AUGUST 8, MR. RIESMEYER FORMALLY ADVISED
MR. DAVIS OF THE 36 EMPLOYEES IN CATEGORIES ONE AND TWO WHO HAD BEEN
PROMOTED IN JUNE 1972.
13. FEELING AGGRIEVED BY THE FAILURE OF THE ACTIVITY TO CONSULT WITH
IT PRIOR TO THE PROMOTION OF CATEGORY TWO EMPLOYEES, THE UNION FILED A
CHARGE WITH THE ACTIVITY ALLEGING A VIOLATION OF SEC. 19(A)(6) OF THE
ORDER. IN THE PERIOD BETWEEN THE FILING OF THE CHARGE AND THE FILING OF
THE COMPLAINT ON NOVEMBER 21, 1972, THE PARTIES ATTEMPTED TO INFORMALLY
RESOLVE CONTESTED ISSUES. TO THIS END VARIOUS OFFERS OF SETTLEMENT AND
COUNTER-OFFERS WERE EXCHANGED.
PRIOR TO THE HEARING OF THE CASE THE ACTIVITY MADE AN ADDITIONAL
OFFER OF SETTLEMENT, UNDER THE TERMS OF WHICH MR. STRATTON WOULD SEND A
LETTER TO MR. DAVIS WITH THE UNDERSTANDING THAT IT COULD BE DUPLICATED
AND DISPLAYED ON ANY BULLETIN BOARD IN THE HAMPTON FACILITY. BY THIS
LETTER MR. STRATTON WOULD STATE:
"WE WILL NOT REFUSE TO INFORM THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-17, ABOUT CHANGES IN PROMOTION POLICIES. WE WILL
NOT REFUSE TO MEET AND CONFER WITH THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R4-17, IN VIOLATION OF SECTION 19-A-6 OF
EXECUTIVE ORDER 11491, AS AMENDED, ABOUT CHANGES IN PROMOTION POLICIES
WITHIN THE AUTHORITY OF THE CENTER DIRECTOR." (TR.P. 7, LINES 4-10.)
THIS OFFER WAS REFUSED BY THE UNION WHEN MADE AND LATER, AT THE
HEARING.
THE SCOPE OF THE OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE IMPOSED
BY SEC. 19(A)(6) IS DESCRIBED IN SEC. 11(A), 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.
THIS LANGUAGE STRONGLY SUGGESTS THAT THE POLICIES, PRACTICES OR
PROCEDURES BY WHICH AN AGENCY SELECTS EMPLOYEES FOR PROMOTION ARE
SUBJECT TO THE DUTY TO CONSULT, CONFER OR NEGOTIATE. MOREOVER, THE
COLLECTIVE BARGAINING AGREEMENT IN FORCE AT RELEVANT TIMES IN THE
INSTANT CASE LISTS "PROMOTION PROCEDURES" AMONG THE APPROPRIATE SUBJECTS
FOR NEGOTIATION (ARTICLE VI). THUS, UNLESS THE LIMITATION ON THE SCOPE
OF BARGAINING SET FORTH IN THE LATTER PART OF SEC. 11(A) APPLIES HERE,
/12/ I WOULD CONCLUDE THAT ANY CHANGE IN PROMOTION PROCEDURES WAS
SUBJECT TO THE OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE.
THE UNION DID NOT PROTEST AND DID NOT LODGE ITS COMPLAINT AGAINST THE
DIRECTOR'S DECISION TO IMPOSE A FREEZE ON PROMOTIONS, EVENT THOUGH LOCAL
MANAGEMENT RETAINED DISCRETION CONCERNING THE METHODS TO BE USED IN
ACCOMPLISHING HEADQUARTER'S GRADE DE-ESCALATION DIRECTIVE. THE UNION
DID NOT COMPLAIN ABOUT MANAGEMENT'S FAILURE TO FOREWARN IT ABOUT THE
APPARENT DECISION TO LIFT THE FREEZE FIRST IN FAVOR OF TRAINEES. WHILE
THIS RECORD SUGGESTS THAT THE PRIORITY ACCORDED TRAINEES WAS A DECISION
MADE BY HEADQUARTERS TO APPLY UNIFORMLY TO ALL SUBORDINATE FACILITIES,
THUS REMOVING THE SUBJECT FROM LOCAL BARGAINING TABLES, /13/ IT IS NOT
ENTIRELY CLEAR THAT SUCH WAS THE CASE. EVEN IF LOCAL MANAGEMENT HAD A
VOICE IN SETTING SUCH PRIORITIES, IN WHICH EVENT A DUTY TO CONSULT WOULD
IN MY JUDGMENT EXIST, THIS RECORD SHOWS THAT THE UNION WAS ADVISED OF
MANAGEMENT'S DECISION IMMEDIATELY UPON RECEIPT OF THE JUNE 12 TELETYPE
FROM HEADQUARTERS INSTRUCTING IT TO PROMOTE ALL TRAINEES. AGAIN IT
REGISTERED NO PROTEST, NOR DID IT SEEK TO DISCUSS THE REASONS FOR
ACCORDING PRIORITY TO TRAINEES OVER ALL OTHERS WHOSE PROMOTIONS WERE
DEFERRED. IT WAS, AT LEAST AT THAT TIME, MADE FULLY AWARE OF CATEGORY
TWO, BUT IT DID NOT SEEK DISCUSSION CONCERNING ITS EXACT NATURE, OR TO
EXPLORE THE QUESTION WHETHER THE CRITERIA FOR INCLUSION IN CATEGORY TWO
REPRESENTED A DEPARTURE FROM THE PRE-EXISTING POLICY GOVERNING SELECTION
FOR PROMOTION.
THERE IS, IN FACT, NO EVIDENCE ON THIS RECORD THAT THE 11 INDIVIDUALS
PROMOTED AS A CONSEQUENCE OF THE JUNE 23 TELETYPE WERE SELECTED BY
REFERENCE TO CRITERIA ANY DIFFERENT FROM THOSE THAT OBTAINED PRIOR TO
THE FREEZE. THAT IS TO SAY, COMPLAINANT DID NOT ESTABLISH, NOR DID IT
ATTEMPT TO ESTABLISH, THAT THE PROCEDURES EMPLOYED FOR PURPOSES OF
SELECTING THE EMPLOYEES ENCOMPASSED BY CATEGORY TWO DIFFERED IN ANY
RESPECT FROM THE MERIT PROMOTION PROGRAM WHICH HAD BEEN SUSPENDED BY THE
FREEZE. THUS, I WOULD CONCLUDE THAT, ASIDE FROM THE QUESTION OF
TRAINEES, THE IMPACT OF THE GRADE DE-ESCALATION PROGRAM WAS QUITE
LIMITED: IT SERVED TO DEFER PROMOTIONS BUT IT DID NOT CHANGE THEIR
ORDER OR ALTER THE CRITERIA APPLIED IN THE SELECTION PROCESS. CATEGORY
THREE, CREATED BY LOCAL MANAGEMENT, EMBRACED THOSE EMPLOYEES WHO MET THE
TIME-IN-GRADE REQUIREMENTS, AND HAD BEEN RECOMMENDED BY THEIR
SUPERVISORS, BUT WHO HAD NOT COMPLETED THE SCREENING PROCESS BY
SURVIVING A DESK AUDIT. /14/ THUS, BY THE END OF THE FISCAL YEAR ALL
THOSE EMPLOYEES WHO WOULD ALREADY HAVE BEEN PROMOTED, BUT FOR THE
FREEZE, WERE IN FACT PROMOTED. IN THE CIRCUMSTANCES, I CONCLUDE THAT
THE ACTIVITY DID NOT REFUSE TO CONFER, CONSULT, OR NEGOTIATE IN
VIOLATION OF SEC. 19(A)(6) RESPECTING THE PROMOTIONS MADE IN JUNE.
THERE REMAINS FOR CONSIDERATION THE QUESTION WHETHER THE ACTIVITY
VIOLATED THE ORDER MERELY BY FAILING TO INFORM THE UNION OF THE DECISION
TO PROMOTE EMPLOYEES COVERED BY CATEGORY TWO. THERE CAN BE NO DOUBT ON
THIS RECORD THAT THE FAILURE TO DO SO, PARTICULARLY IN THE LIGHT OF THE
UNION'S MISUNDERSTANDING OF THE DURATION OF THE FREEZE, MADE IT APPEAR
INEPT AND INEFFECTIVE. THE POSITION IT WAS PUT IN CLEARLY SERVED TO
DISPARAGE IT, AND TO UNDERMINE ITS SUPPORT AMONG UNIT EMPLOYEES. ON THE
OTHER HAND, THE ACTIVITY'S RELATIONSHIP WITH THE UNION WAS AMICABLE; IT
HAD BEEN COOPERATIVE, MEETING ON A REGULAR WEEKLY BASIS. THE RECORD IS
DEVOID OF ANY SUGGESTION THAT IT WAS MOTIVATED BY UNION ANIMUS. RATHER
IT WAS CLEAR THAT THE OVERSIGHT WAS UNINTENTIONAL, AND THAT MANAGEMENT
OFFICIALS REGRETTED IT. IN VIEW OF MY CONCLUSION ABOVE THAT THE
CATEGORY TWO PROMOTIONS WERE CONSISTENT WITH PRIOR PROMOTION PROCEDURES,
AND THAT THE UNION IN ANY EVENT DID NOT SEEK INFORMATION OR NEGOTIATION
CONCERNING THE CHARACTER OF THE CATEGORY, I CONCLUDE THAT THERE WAS IN
THESE CIRCUMSTANCES NO DUTY TO INFORM THE UNION THAT THE FREEZE HAD BEEN
LIFTED. IT WOULD CLEARLY HAVE BEEN THE BETTER PRACTICE TO INFORM THE
UNION, BUT I CANNOT FIND THAT THE ORDER REQUIRED IT IN THESE
CIRCUMSTANCES.
IN VIEW OF THESE FINDINGS AND CONCLUSION, I RECOMMEND THAT THE
ASSISTANT SECRETARY DISMISS THE COMPLAINT.
DATED: FEBRUARY 27, 1974
WASHINGTON, D.C.
/1/ SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL
NOT--
(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR ORGANIZATION
AS REQUIRED BY THIS ORDER.
/2/ MORE SPECIFICALLY, THE CHARGE ACCUSES THE AGENCY OF LIFTING A
FREEZE ON PROMOTIONS AND PROMOTING 36 EMPLOYEES "WITHOUT INFORMING THE
UNION OF THE CHANGE IN PROMOTION POLICY."
/3/ JOINT EXHIBIT NO. 5.
/4/ JOINT EXHIBIT NO. 1.
/5/ JOINT EXHIBIT NO. 2.
/6/ JOINT EXHIBIT NO. 3.
/7/ THERE IS NO EVIDENCE THAT THE UNION WAS CONSULTED CONCERNING THIS
DETERMINATION, NOR THAT IT EVER PROTESTED OR SOUGHT DISCUSSION OF THE
FOR ACHIEVING THE GOAL IMPOSED UPON HIM. WITHIN THE DIRECTOR'S
DISCRETION, FOR ACHIEVING THE GOAL IMPOSED UPON HI.
/8/ I FOUND THE TWO PRINCIPAL WITNESSES, MR. DAVIS FOR THE UNION AND
MR. RIESMEYER FOR THE ACTIVITY, TO BE CANDID AND ENTIRELY CREDIBLE.
WHERE THEIR VERSIONS OF EVENTS CONFLICT, I HAVE CREDITED THE LATTER
BECAUSE HIS RECOLLECTION AND HIS GRASP OF THE MATTERS IN ISSUE SEEMED TO
BE DISTINCTLY SUPERIOR TO THAT OF MR. DAVIS.
/9/ THE RECORD DOES NOT DISCLOSE WHETHER HEADQUARTERS EVER EXPLAINED
THE PURPOSE OF REPORTING SUCH CATEGORIES. WITH RESPECT TO A REQUEST FOR
A CURRENT LIST OF CATEGORY TWO POSITIONS MADE BY THE CENTRAL OFFICE ON
JUNE 19, MR. RIESMEYER TESTIFIED THAT LOCAL MANAGEMENT WAS GIVEN NO
INDICATION OF WHAT WOULD HAPPEN TO THE "LIST" FORWARDED TO HEADQUARTERS.
/10/ MR. DAVIS' RECOLLECTION OF MR. RIESMEYER'S COMMENTS DIFFERS
SLIGHTLY. MR. DAVIS RECALLED BEING TOLD THAT WITH THE EXCEPTION OF THE
PROMOTION OF CATEGORY ONE PERSONNEL THE PROMOTION FREEZE WAS TO CONTINUE
THROUGH THE NEXT FISCAL YEAR. MR. DAVIS SO INFORMED THE OTHER UNION
OFFICERS AND, AT THE FULL MEMBERSHIP MEETING IN JULY 1972, TOLD THE
MEMBERS. THESE DIFFERING ACCOUNTS OF THE JUNE 12 MEETING ARE NOT
CRITICAL TO THE DECISION REACHED HEREIN.
/11/ RESPONDENT'S EXHIBIT NO. 3.
/12/ I READ THE LIMITATION CONCERNING GRADES IN SEC. 11(B) AS CLEARLY
INAPPLICABLE.
/13/ SEE UNITED FEDERATION OF COLLEGE TEACHERS, LOCAL 1460 AND THE
U.S. MERCHANT MARINE ACADEMY, FLRC NO. 71A-15, AND DEPARTMENT OF DEFENSE
DLIEL, LACKLAND AIR FORCE BASE, TEXAS, A/SLMR NO. 322.
/14/ EVEN ASSUMING THE DESK AUDIT REQUIREMENT WAS A CHANGE FROM THE
ESTABLISHED PROMOTION PROCEDURE, I WOULD NOT FIND A VIOLATION. THE
UNION HAD AMPLE OPPORTUNITY, AS A RESULT OF THE JUNE 12 MEETING, TO
REQUEST INFORMATION, AND IF SO DISPOSED, BARGAINING, ABOUT THE PROCESS
USED FOR SELECTING THE EMPLOYEES LISTED IN CATEGORY TWO. IT DID NOT DO
SO.
4 A/SLMR 384; P. 284; CASE NO. 32-2824(CA); APRIL 30, 1974.
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 438TH AIR BASE GROUP,
MCGUIRE AIR FORCE BASE, NEW JERSEY
A/SLMR NO. 384
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1778
(COMPLAINANT), ALLEGING THAT THE RESPONDENT ACTIVITY AND THE COMPLAINANT
ON DECEMBER 7, 1971, AGREED TO FULL CONSULTATION ON AN ENVIRONMENTAL
DIFFERENTIAL PAY PLAN, AND THAT SINCE THAT DATE THE RESPONDENT REFUSED
TO CONSULT AND CONFER IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
ON AUGUST 5, 1970, THE CIVIL SERVICE COMMISSION DIRECTED THAT A NEW
SUBCHAPTER DEALING WITH ENVIRONMENTAL PAY DIFFERENTIALS BE INCLUDED IN
THE FEDERAL PERSONNEL MANUAL SUPPLEMENT. AN APPENDIX OF THE SUBCHAPTER
CONTAINED CATEGORIES OF WORK SITUATIONS WHERE DIFFERENTIALS WOULD BE
PAYABLE AND THE RATES AUTHORIZED FOR EACH SUCH CATEGORY. COMMENCING IN
JUNE 1970, THE RESPONDENT AND COMPLAINANT WERE ENGAGED IN COLLECTIVE
BARGAINING NEGOTIATIONS FOR A NEW AGREEMENT. DURING THEIR NEGOTIATIONS
THE PARTIES DISCUSSED, AMONG OTHER THINGS, THE ISSUE OF ENVIRONMENTAL
PAY. IN ADDITION, THE PARTIES MET ON AT LEAST TWO OCCASIONS TO DISCUSS
THE NEW ENVIRONMENTAL DIFFERENTIAL REGULATIONS AND THEY EXCHANGED
CORRESPONDENCE WITH REGARD TO THESE REGULATIONS ON ONE OCCASION PRIOR TO
THEIR PUBLICATION ON NOVEMBER 26, 1971.
ON DECEMBER 7, 1971, THE PARTIES AGAIN MET AND AGREED THAT THEY WOULD
MEET FURTHER REGARDING THE ON-GOING DIFFERENTIAL PAYMENT PLAN.
SUBSEQUENTLY, ON MARCH 20, 1972, COMPLAINANT'S REPRESENTATIVES MET WITH
OFFICIALS OF RESPONDENT'S CLASSIFICATION AND WAGE DEPARTMENT ALLEGEDLY
FOR THE PURPOSE OF CONSULTATION ON THE DIFFERENTIAL PAY ISSUE. AT THIS
MEETING, THE COMPLAINANT REQUESTED ACCESS TO THE RESPONDENT'S COLLECTED
MATERIALS AND CORRESPONDENCE REGARDING ENVIRONMENTAL DIFFERENTIAL PAY.
THE REQUEST WAS REFUSED BY RESPONDENT AS BEING TOO BROAD.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT WAS OBLIGATED
TO NEGOTIATE ON DIFFERENTIAL PAY WHERE A DETERMINATION WAS REQUIRED
CONCERNING "THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS UNDER
APPROPRIATE CATEGORIES IN APPENDIX J OR FOR DETERMINING ADDITIONAL
CATEGORIES NOT INCLUDED IN APPENDIX J FOR WHICH ENVIRONMENTAL
DIFFERENTIAL IS CONSIDERED TO WARRANT REFERRAL TO THE COMMISSION FOR
PRIOR APPROVAL." HOWEVER, HE FOUND NO EVIDENCE THAT RESPONDENT REFUSED
TO CONFER IN GOOD FAITH WITH REGARD TO SUCH NEGOTIABLE ITEMS. FURTHER,
HE FOUND THAT COMPLAINANT DEMANDED BARGAINING ABOUT MANY ASPECTS OF THE
PLAN WHICH WERE NON-NEGOTIABLE DIRECTIVES FROM HIGHER AUTHORITY. WITH
REGARD TO THE MARCH 20, 1972 MEETING, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT RESPONDENT PROPERLY REFUSED TO PRODUCE MATERIALS FROM ITS FILES
WITHOUT A PARTICULARIZED REQUEST AND THAT THERE WAS NO FAILURE TO
PRODUCE INFORMATION NECESSARY FOR THE COMPLAINANT TO FUNCTION
INTELLIGENTLY.
UNDER THE CIRCUMSTANCES OF THE CASE, THE ASSISTANT SECRETARY AGREED
WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE RESPONDENT MET
ITS OBLIGATION TO MEET AND CONFER IN GOOD FAITH ON MATTERS RELATED TO
PAYMENT OF ENVIRONMENTAL DIFFERENTIALS. FURTHER, THE ASSISTANT
SECRETARY AGREED WITH THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT
RESPONDENT'S REFUSAL TO GRANT COMPLAINANT ACCESS TO MATERIALS AND
CORRESPONDENCE REGARDING ENVIRONMENTAL DIFFERENTIALS WAS NOT VIOLATIVE
OF THE ORDER, WHERE THE REQUEST WAS NOT PARTICULARIZED AND THE EVIDENCE
DID NOT ESTABLISH THAT THE INFORMATION REQUESTED WAS NECESSARY FOR THE
COMPLAINANT TO FUNCTION INTELLIGENTLY AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE.
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS 438TH AIR BASE GROUP,
MCGUIRE AIR FORCE BASE, NEW JERSEY
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1778
ON DECEMBER 19, 1973, 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 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. /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 THE SUBJECT CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE.
UNDER THE CIRCUMSTANCES OF THIS CASE, I AGREE WITH THE ADMINISTRATIVE
LAW JUDGE'S CONCLUSION THAT THE RESPONDENT MET ITS OBLIGATION TO MEET
AND CONFER IN GOOD FAITH ON MATTERS RELATED TO THE PAYMENT OF
ENVIRONMENTAL DIFFERENTIALS. FURTHER, I AGREE WITH THE ADMINISTRATIVE
LAW JUDGE'S CONCLUSION THAT THE RESPONDENT'S REFUSAL TO GRANT THE
COMPLAINANT ACCESS TO THE FORMER'S MATERIALS AND CORRESPONDENCE
REGARDING ENVIRONMENTAL DIFFERENTIALS WAS NOT VIOLATIVE OF THE ORDER.
THUS, AS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE COMPLAINANT'S
REQUEST IN THIS REGARD WAS NOT PARTICULARIZED AND THE EVIDENCE DID NOT
ESTABLISH THAT THE REQUESTED INFORMATION WAS NECESSARY FOR THE
COMPLAINANT TO FUNCTION INTELLIGENTLY AS THE EXCLUSIVE BARGAINING
REPRESENTATIVE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 32-2824(CA) BE,
AND IT IS HEREBY, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 30, 1974
/1/ THE RESPONDENT REQUESTED AND WAS GRANTED AN EXTENSION OF TIME,
UNDER SECTION 203.24(B) OF THE ASSISTANT SECRETARY'S REGULATIONS, TO
FILE AN ANSWERING BRIEF IN THE SUBJECT CASE. HOWEVER, THE ANSWERING
BRIEF WAS UNTIMELY FILED BY THE RESPONDENT AND, THEREFORE, IT HAS NOT
BEEN CONSIDERED IN REACHING THE DECISION IN THIS CASE.
IN THE MATTER OF
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 438TH AIR BASE GROUP
MCGUIRE AIR FORCE BASE, NEW JERSEY
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
LOCAL 1778
CAPTAIN PHILLIP ENGLAND, USAF
CAPTAIN JOSEPH E. ORSINI, USAF
P.O. BOX 16109
STAFF JUDGE ADVOCATE'S OFFICE
MCGUIRE AIR FORCE BASE, NEW JERSEY
DOLPH D. SAND, ESQUIRE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
400 FIRST STREET, N.W.
WASHINGTON, D.C. 20001
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
A COMPLAINT ALLEGING VIOLATIONS OF SECTION 19(A)(6) OF EXECUTIVE
ORDER 11491 WAS FILED BY THE COMPLAINANT ON MAY 30, 1972, AND A NOTICE
OF HEARING ON THE COMPLAINT WAS ISSUED BY THE REGIONAL ADMINISTRATOR ON
FEBRUARY 22, 1973. THE COMPLAINT ALLEGED THAT RESPONDENT AND THE UNION,
ON DECEMBER 7, 1971, AGREED TO FULL CONSULTATION ON AN ENVIRONMENTAL
DIFFERENTIAL PAY PLAN, AND THAT SINCE THAT DATE RESPONDENT HAS REFUSED
TO CONSULT AND CONFER. ON MARCH 15, 1973, A HEARING WAS HELD IN NEWARK,
NEW JERSEY, AT WHICH THE PARTIES WERE GIVEN FULL OPPORTUNITY TO ADDUCE
EVIDENCE AND TO CALL AND EXAMINE WITNESSES. UNFORTUNATELY, NEITHER
PARTY CHOSE TO FILE A POST-HEARING BRIEF.
ON THE ENTIRE RECORD OF THIS CASE AND MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND RECOMMENDATION.
LOCAL 1779 IS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR ALL
CIVILIAN WAGE PERSONNEL EMPLOYED AT THE MCGUIRE AIR FORCE BASE. A
COLLECTIVE BARGAINING AGREEMENT NEGOTIATED BY THE PARTIES WITH AN
EXPIRATION DATE OF JULY 2, 1970, HAS, BY MUTUAL CONSENT, BEEN EXTENDED
WHILE NEGOTIATIONS FOR A NEW AGREEMENT ARE PROCEEDING.
ON AUGUST 5, 1970, THE CIVIL SERVICE COMMISSION ISSUED FPM LETTER NO.
532-17 /1/ DIRECTING INCLUSION OF A NEW SUBCHAPTER S-8-7 IN FEDERAL
PERSONNEL MANUAL SUPPLEMENT 532-1. THE FPM LETTER SET AS THE EFFECTIVE
DATE FOR THE NEW SUBCHAPTER THE FIRST PAY PERIOD ON OR AFTER NOVEMBER 1,
1970.
SUBCHAPTER S-8-7, ENTITLED ENVIRONMENTAL DIFFERENTIALS PAID FOR
EXPOSURE TO VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING
CONDITIONS OF AN UNUSUAL NATURE, CONTAINED INSTRUCTIONS AND PROCEDURES
FOR THE PAYMENT OF ENVIRONMENTAL DIFFERENTIALS TO WAGE EMPLOYEES.
APPENDIX J OF S-8-7 CONTAINS CATEGORIES OF WORK SITUATIONS WHERE
DIFFERENTIALS WOULD BE PAYABLE AND THE RATES AUTHORIZED FOR EACH SUCH
CATEGORY. MANY OF THE CATEGORIES LISTED IN APPENDIX J ARE FOLLOWED BY
SPECIFIC EXAMPLES OF THE TYPES OF WORK WHICH WOULD FALL WITHIN THE
CATEGORY AND MERIT DIFFERENTIAL PAY. THE EXAMPLES ARE INTENDED TO BE
ILLUSTRATIVE ONLY AND NOT EXHAUSTIVE OR EXCLUSIVE OF OTHER WORK
SITUATIONS WHICH COULD QUALIFY UNDER THE CATEGORY DESCRIPTION.
INCLUDED IN THE EXPLANATORY MATERIALS IN S-8-7, AT SEC. E(3) WAS A
NOTICE THAT AMENDMENTS TO CATEGORIES IN APPENDIX J, IN THE FORM OF
ADDITIONS, CHANGES, OR DELETIONS COULD BE MADE BY THE CIVIL SERVICE
COMMISSION ON ITS OWN MOTION, AT THE REQUEST OF AN AGENCY, OR AT THE
REQUEST OF THE NATIONAL OFFICE OF A LABOR ORGANIZATION.
AT SEC. G.(2)(A) OF THE SUBCHAPTER EACH INDIVIDUAL AGENCY WAS
INSTRUCTED TO EVALUATE ITS OWN SITUATION TO DETERMINE WHETHER WORK
PERFORMED BY EMPLOYEES OF THE AGENCY WAS COVERED BY ONE OR MORE OF THE
CATEGORIES OF APPENDIX J. WHERE THE GUIDELINES OF A CATEGORY OF
APPENDIX J WERE SATISFIED, ENVIRONMENTAL DIFFERENTIALS WERE TO BE PAID
AS OF THE EFFECTIVE DATE (AT MCGUIRE) OF NOVEMBER 8, 1970. WHERE THE
AGENCY DETERMINED THAT CERTAIN OF ITS EMPLOYEES PERFORMED WORK SO
UNUSUAL IN NATURE AS TO WARRANT PAYMENT OF AN ENVIRONMENTAL
DIFFERENTIAL, BUT THAT THE WORK DID NOT FALL WITHIN ONE OF THE LISTED
CATEGORIES OF APPENDIX J, THE AGENCY WAS INSTRUCTED IN SEC. G.(2)(B) TO
WITHHOLD PAYMENT OF A DIFFERENTIAL, EXCEPT AS PROVIDED BY SEC. I. (NOT
HERE RELEVANT) AND TO INSTITUTE A REQUEST TO THE COMMISSION FOR
AUTHORIZATION. SECTION G.(3) PROVIDED FURTHER THAT:
(3) NOTHING CONTAINED IN THIS SECTION SHALL PRECLUDE NEGOTIATIONS
THROUGH THE COLLECTIVE BARGAINING PROCESS FOR DETERMINING THE COVERAGE
OF ADDITIONAL LOCAL SITUATIONS UNDER APPROPRIATE CATEGORIES IN APPENDIX
J OR FOR DETERMINING ADDITIONAL CATEGORIES NOT INCLUDED IN APPENDIX J
FOR WHICH ENVIRONMENTAL DIFFERENTIAL IS CONSIDERED TO WARRANT REFERRAL
TO THE COMMISSION FOR PRIOR APPROVAL AS PER (2) ABOVE.
SECTION I.(1) OF SUBCHAPTER S-8-7, PROVIDED IN PERTINENT PART AS
FOLLOWS:
I. EFFECTIVE DATE AND SAVINGS PROVISION
(1) THE INSTRUCTIONS IN THIS SECTION SHALL BE EFFECTIVE AT THE
BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER NOVEMBER 1,
1970. DURING THIS PERIOD EACH AGENCY SHALL IDENTIFY EACH HAZARD,
PHYSICAL HARDSHIP AND WORKING CONDITION FOR WHICH IT IS PAYING AN
ENVIRONMENTAL DIFFERENTIAL IN ANY OF ITS OPERATIONS AND WHICH DOES NOT
FALL WITHIN THE CATEGORIES LISTED IN APPENDIX J. EACH ONE SO IDENTIFIED
SHALL BE SUBMITTED TO THE COMMISSION AS SOON AS IT IS IDENTIFIED BUT NOT
LATER THAN 60 DAYS AFTER THE EFFECTIVE DATE OF THESE INSTRUCTIONS. EACH
SUBMISSION SHALL CONTAIN ALL INFORMATION ON WHICH THE COMMISSION MAY
MAKE A DECISION RELATIVE TO THE NEED FOR AN ADDITIONAL CATEGORY IN
APPENDIX J AND SHOULD CONTAIN THE RECOMMENDATION OF THE AGENCY. IN
THOSE SITUATIONS WHERE A UNION HOLDS EXCLUSIVE RECOGNITION FOR THE
EMPLOYEES INVOLVED, THE AGENCY WILL CONSULT WITH THE UNION AN (SIC)
INCLUDE THE VIEWS AND RECOMMENDATIONS OF THE UNION WITH THE REPORT BY
THE AGENCY. /2/
ORLANDO BERGERSON, THE LABOR-MANAGEMENT RELATIONS OFFICER FOR THE
ACTIVITY, TESTIFIED AT THE HEARING THAT TO THE BEST OF HIS RECOLLECTION
ENVIRONMENTAL DIFFERENTIAL PAY WAS INITIATED BY THE ACTIVITY PURSUANT TO
FPM LETTER 532-17 ON DECEMBER 24, 1970, WITH THE INTENTION TO MAKE
RETROACTIVE ADJUSTMENTS SHOULD PROBLEMS ARISE.
IN EARLY 1971, SUBSEQUENT TO THE COMMENCEMENT OF ENVIRONMENTAL
DIFFERENTIAL PAYMENTS, THE ACTIVITY AND THE UNION HELD TWO MEETINGS TO
DISCUSS AND CONSULT ON THE ENVIRONMENTAL DIFFERENTIAL REGULATIONS. ONE
OF THE PARTICIPANTS, WILLIAM G. BAILLIE, PRESIDENT OF LOCAL 1778,
TESTIFIED THAT THE SECOND MEETING ENDED WHEN DISAGREEMENT AROSE
REGARDING INTERPRETATION AND IMPLEMENTATION OF FPM LETTER 532-17.
DURING COLLECTIVE BARGAINING MEETINGS WHICH HAD BEEN HELD REGULARLY
SINCE JUNE OF 1970, THE ACTIVITY AND THE UNION HAD DISCUSSED, AMONG
OTHER TOPICS, THE ISSUE OF ENVIRONMENTAL DIFFERENTIAL PAY. ALTHOUGH NO
FINAL AND COMPLETE COLLECTIVE BARGAINING AGREEMENT HAS YET BEEN
NEGOTIATED, THE PARTIES HAVE DISCUSSED AND TENTATIVELY AGREED ON AN
ENVIRONMENTAL PAY PROVISION FOR INCLUSION IN THE FINAL CONTRACT. /3/
THIS PROVISION, TENTATIVE THOUGH IT IS, EVIDENCES CONTINUED CONTACT AND
EXCHANGE BETWEEN THE PARTIES ON THE GENERAL TOPIC OF ENVIRONMENTAL
DIFFERENTIAL PAY.
ON APRIL 29, 1971, IN THE MIDST OF THE CONTROVERSY OVER THE UNION'S
CONSULTATION RIGHTS UNDER FPM LETTER 532-17 AND CONTRACT NEGOTIATIONS
REGARDING ENVIRONMENTAL DIFFERENTIAL PAY, MR. HARRY A. RYBOCK, CIVILIAN
PERSONNEL OFFICER FOR THE ACTIVITY, SENT TO MR. BAILLIE PROPOSED BASE
REGULATION 40-- , CONCERNING THE ADMINISTRATION OF THE DIFFERENTIAL PAY
PLAN AT MCGUIRE. BY COVER LETTER MR. RYBOCK REQUESTED "REVIEW OF THE
PROPOSED REGULATION AND CONSTRUCTIVE COMMENTS AND RECOMMENDATIONS." /4/
THE PROPOSED REGULATION INCORPORATED WITHOUT CHANGE APPENDIX J OF
SUBCHAPTER S-8-7.
THE NECESSITY OR IMPORT OF THE PROPOSED REGULATION IS NOT CLEAR FROM
THE FACE OF THE DOCUMENT OR THE TESTIMONY ADDUCED AT THE HEARING. MR.
BERGERSON, TESTIFYING FOR THE RESPONDENT, SUGGESTED THAT WHILE THE
AUTHORITY FOR DIFFERENTIAL PAYMENTS MAY BE FOUND IN FPM LETTER 532-17, A
LOCAL REGULATION WAS NECESSARY TO ADAPT THE CIVIL SERVICE COMMISSION
DIRECTIVE TO THE SPECIAL CONDITIONS FOUND AT MCGUIRE AND TO SERVE AS A
GUIDE TO ACTIVITY SUPERVISORS. IT WAS MR. BAILLIE'S BELIEF THAT THE
PROPOSED REGULATION WAS OF LITTLE IMPORT ASIDE FROM AIR FORCE
RECORDKEEPING PURPOSE, THAT FPM LETTER 532-17 WAS SELF-EXECUTING, AND
THAT THE REGULATION WOULD HAVE LITTLE OR NO EFFECT ON THE ONGOING
PAYMENT PLAN.
BY LETTER DATED MAY 10, 1971, /5/ MR. BAILLIE RESPONDED TO THE
PROPOSED BASE REGULATION OFFERING CRITICISM FOR THE SUBSTANCE OF THE
PROPOSAL AND DISSATISFACTION WITH THE UNION'S PREVIOUS OPPORTUNITIES FOR
CONSULTATION ON ENVIRONMENTAL DIFFERENTIAL PAY. IT APPEARS TO ACCEPT
SCHEDULE J IN ITS ENTIRETY, BUT IS HIGHLY CRITICAL OTHERWISE OF THE
PLAN, NOTES THAT THE UNION'S REQUESTS FOR CONSULTATION HAVE BEEN
IGNORED, AND CALLS UPON THE ACTIVITY "TO SIT DOWN AND PROPERLY CONSULT"
WITH THE LOCAL.
THE RESPONDENT/ACTIVITY INTRODUCED INTO EVIDENCE A PHOTOSTATIC COPY
OF A LETTER OVER THE SIGNATURE OF MR. RYBOCK, DATED SEPTEMBER 7, 1971,
ADDRESSED TO MR. BAILLIE AT THE UNION OFFICE. /6/ THE LETTER MADE
REFERENCE TO THE APRIL 29 CORRESPONDENCE AND ADVISED THAT COPIES OF THE
PROPOSED BASE REGULATION AND MR. BAILLIE'S MAY 10 LETTER HAD BEEN SENT
TO HIGHER AUTHORITIES AT SCOTT AIR FORCE BASE FOR REVIEW AND COMMENT.
THE SEPTEMBER 7 LETTER HAD ATTACHED A REVISED DRAFT OF PROPOSED BASE
REGULATION 40-- , UPON WHICH COMMENT WAS SOLICITED.
MR. BAILLIE TESTIFIED THAT HE NEVER RECEIVED MR. RYBOCK'S LETTER OF
SEPTEMBER 7, AND THUS, OBVIOUSLY, DID NOT REPLY. A HANDWRITTEN NOTATION
ON THE LETTER READS "NO REPLY 10/22/71." THE EVIDENCE IS NOT OF SUCH
CHARACTER AS TO RAISE A PRESUMPTION THAT THE SEPTEMBER 7 LETTER WAS
RECEIVED BY MR. BAILLIE. MR. RYBOCK DID NOT TESTIFY AT THE HEARING AND
NO ATTEMPT WAS MADE TO INTRODUCE ANY EVIDENCE REGARDING THE MAILING OF
THE LETTER IN QUESTION OR THE ACTIVITY'S USUAL MAILING PROCEDURES. ONLY
THE COPY OF THE LETTER ITSELF INTRODUCED INTO EVIDENCE OPPOSES MR.
BAILLIE'S CREDITABLE TESTIMONY DENYING RECEIPT, WHICH WAS SUPPORTED BY
THE TESTIMONY OF MR. HERMAN WINTERS, VICE PRESIDENT OF THE UNION. MR.
BAILLIE'S PROMPT REPLY TO THE APRIL 29 LETTER RAISES THE INFERENCE THAT
HE WOULD HAVE REPLIED HAD HE RECEIVED THE LETTER DATED SEPTEMBER 7. ON
THE BASIS OF THE EVIDENCE BEFORE ME, I MUST CONCLUDE THAT THE LATTER
CORRESPONDENCE WAS NOT RECEIVED BY THE UNION.
THE PROPOSED REGULATION ATTACHED TO THE SEPTEMBER 7, 1971 LETTER WAS
ISSUED BY THE ACTIVITY AS BASE REGULATION 40-4 ON NOVEMBER 26, 1971.
/7/
DISSATISFIED WITH THE CONSULTATIONS IT HAD HAD WITH MANAGEMENT IN
EARLY 1971 REGARDING DIFFERENTIAL PAY, THE UNION FILED AN UNFAIR LABOR
PRACTICE CHARGE AGAINST THE ACTIVITY ON JULY 2, 1971, ALLEGING
VIOLATIONS OF SEC. 19(A)(1) AND (6) OF THE ORDER. AS REQUIRED BY THE
RULES AND REGULATIONS ISSUED UNDER THE EXECUTIVE ORDER A PREHEARING
CONFERENCE ON THE UNION'S CHARGES WAS HELD ON NOVEMBER 9, 1971.
DISCUSSION AT THE CONFERENCE CONCERNED FPM LETTER 532-17 AND THE
ACTIVITY'S OBLIGATIONS THEREUNDER VIS-A-VIS THE UNION. AGREEMENT WAS
REACHED THAT THE PARTIES WOULD MEET AGAIN IN DECEMBER TO ATTEMPT TO
RESOLVE THEIR DIFFERENCE REGARDING IMPLEMENTATION OF ENVIRONMENTAL
DIFFERENTIAL PAY.
A MEETING WAS HELD BETWEEN THE PARTIES ON DECEMBER 7, 1971, AT WHICH
TIME THE FPM LETTER WAS DISCUSSED AGAIN AND IT WAS AGREED THAT THE
PARTIES WOULD MEET FURTHER TO CONSULT REGARDING THE ONGOING DIFFERENTIAL
PAYMENT PLAN. AT THIS MEETING ACTIVITY OFFICIALS PRESENTED THE UNION
WITH A COUNTERPROPOSAL FOR A CONTRACT CLAUSE COVERING ENVIRONMENTAL
DIFFERENTIAL PAY.
BY LETTER TO THE DEPARTMENT OF LABOR DATED DECEMBER 13, 1971, THE
UNION WITHDREW THE UNFAIR LABOR PRACTICE CHARGES IT HAD FILED ON JULY 2,
1971.
ON MARCH 20, 1972, UNION REPRESENTATIVES MET WITH OFFICIALS OF THE
CLASSIFICATION AND WAGE DEPARTMENT WHO WERE RESPONSIBLE FOR
IMPLEMENTATION OF THE DIFFERENTIAL PAY PLAN AT THE ACTIVITY. IT WAS THE
TESTIMONY OF MR. BAILLIE THAT THE MEETING WAS CALLED FOR THE PURPOSE OF
CONSULTATION ON THE DIFFERENTIAL PAY ISSUE, AND THAT THE MEETING WAS
DIFFERENT AND APART FROM ONGOING NEGOTIATIONS REGARDING THE SAME SUBJECT
FOR COLLECTIVE BARGAINING PURPOSES. AT THE MARCH 20 ENCOUNTER THE UNION
REQUESTED ACCESS TO THE ACTIVITY'S COLLECTED MATERIALS AND
CORRESPONDENCE REGARDING ENVIRONMENTAL DIFFERENTIAL. THIS REQUEST WAS
REFUSED BY THE ACTIVITY'S REPRESENTATIVE, MR. GERALD LIBBY, CHIEF OF THE
CLASSIFICATION AND WAGE DEPARTMENT, FOR THE STATED REASON THAT THE
REQUEST WAS OVERBROAD. MR. BAILLIE TESTIFIED THAT IT WAS THE ACTIVITY'S
POSITION THAT IT HAD FULFILLED ITS OBLIGATION TO CONSULT AND CONFER
REGARDING DIFFERENTIAL PAY AT THE DECEMBER 7, 1971 MEETING, AND THAT NO
FURTHER CONSULTATION ON THE SUBJECT AND THE MEETING WAS ADJOURNED WITH
THE PARTIES IN FUNDAMENTAL DISAGREEMENT OVER IMPLEMENTATION PROCEDURES
UNDER THE FPM LETTER AND ON THE SCOPE OF THE DUTY OF THE ACTIVITY TO
CONSULT AND CONFER.
BY LETTER TO THE ACTIVITY DATED APRIL 21, 1972, THE UNION ALLEGED
THAT THE ACTIONS OF THE ACTIVITY'S REPRESENTATIVES AT THE MARCH 20, 1972
MEETING CONSTITUTED A REFUSAL TO CONSULT AND CONFER IN VIOLATION OF THE
ORDER.
INFORMAL ATTEMPTS BY THE PARTIES TO RESOLVE THE CHARGES MADE IN THE
APRIL 21 LETTER FAILED TO PRODUCE AGREEMENT. THEREAFTER, ON APRIL 28,
1972, BY LETTER TO THE UNION, CAPTAIN PHILLIP E. ENGLAND STATED THE
ACTIVITY'S POSITION REGARDING THE CHARGES. /8/ HE DISPUTED THE UNION'S
DECLARED INTERPRETATION OF THE CONSULT AND CONFER REQUIREMENTS OF THE
ORDER AND DECLARED THE ACTIVITY'S POSITION TO BE THAT:
MANAGEMENT'S OBLIGATION TO CONSULT REQUIRES MANAGEMENT TO SOLICIT THE
UNION'S VIEWS OF PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
WORKING CONDITIONS THAT FALL WITHIN THE SCOPE OF THE ACTIVITY
COMMANDER'S AUTHORITY. SUCH MATTERS MUST RELATE TO POLICY
DETERMINATIONS, NOT DAY-TO-DAY OPERATION. (AFT 40-702)
THE LETTER CONCLUDED:
3. SINCE NO RESOLUTION OCCURRED CONCERNING THIS CHARGE, MR. HEGYI
(THE UNION INVESTIGATOR) STATED THAT IT WAS HIS DESIRE TO SUBMIT A
SEPARATE UNION REPORT TO THE BASE COMMANDER.
ALTHOUGH THE UNION MAINTAINED AT THE HEARING THAT ITS SUGGESTIONS
REGARDING THE DIFFERENTIAL PAY PLAN WERE NEVER ACTED UPON, MR. BERGERSON
TESTIFIED THAT A UNION SUGGESTION THAT SUPERVISORS BE TRAINED IN
ENVIRONMENTAL DIFFERENTIAL PAY PROCEDURES WAS IN FACT SENT TO HIGHER
AUTHORITIES AND APPARENTLY WAS IMPLEMENTED.
COMPLAINANT CARRIES THE BURDEN OF PROOF, AND AN ESSENTIAL INGREDIENT
OF THAT BURDEN IS AN ATTEMPT, WITH CLARITY AND PRECISION, TO DESCRIBE
THAT CONDUCT OF WHICH IT COMPLAINS AND TO STATE WHY SUCH CONDUCT IS
VIEWED AS A VIOLATION. THE ANALYSIS BELOW SHOULD, I THINK, BE PREFACED
BY A FRANK ADMISSION THAT IN THE ABSENCE OF BRIEFS IT HAS BEEN DIFFICULT
FOR ME TO ATTEMPT TO CONSTRUCT FROM THE RECORD A COGENT AND
COMPREHENSIVE STATEMENT OF EACH PARTY'S THEORY OF THE CASE. I
NEVERTHELESS FEEL CONSTRAINED TO MAKE THAT EFFORT SO AS TO PROVIDE A
PERSPECTIVE FOR THE ANALYSIS WHICH FOLLOWS:
THE COMPLAINT EXPLICITLY ADDRESSES ITSELF TO AN ALLEGED FAILURE TO
CONSULT AND CONFER ON AND AFTER THE MEETING OF DECEMBER 7, 1971. IN HIS
OPENING STATEMENT AT THE HEARING, COUNSEL FOR THE UNION CONTENDED THAT
ON DECEMBER 7, 1971, THERE WAS AN AGREEMENT TO CONSULT ON ENVIRONMENTAL
WAGE DIFFERENTIALS, BUT THAT SINCE THAT DATE MANAGEMENT HAS REFUSED TO
CONSULT AND HAS DENIED ANY SUCH AGREEMENT WAS REACHED. IN HIS CLOSING
STATEMENT COUNSEL MADE FURTHER CONTENTIONS RESPECTING THE ACTIVITY'S
ALLEGED FAILURE TO CONSULT BEFORE IMPLEMENTING FPM LETTER 532-17, ITS
FAILURE TO MAKE CERTAIN INFORMATION AVAILABLE, ITS FAILURE TO ENSURE
THAT A COPY OF THE SEPTEMBER 7, 1971 LETTER WAS RECEIVED BY THE UNION
AND THE APPARENT FAILURE TO FORWARD THE UNION'S VIEWS CONCERNING
ENVIRONMENTAL PAY TO HIGHER HEADQUARTERS (PURSUANT TO SEC. I.(1)). AT
ALL TIMES THE UNION INSISTED THAT THE CONTEMPORANEOUS NEGOTIATIONS WHICH
CULMINATED IN TENTATIVE AGREEMENT TO A CONTRACT CLAUSE DEALING WITH
DIFFERENTIAL PAY COULD NOT SERVE TO FULFILL THE OBLIGATION TO CONSULT
ABOUT THE IMPLEMENTATION OF THE DIFFERENTIAL PAY PLAN. (TRANSCRIPT PP.
48-52.)
RESPONDENT CONTENDS THAT THE ORDER REQUIRED CONSULTATION WITH THE
UNION BEFORE IMPLEMENTATION OF THE DIFFERENTIAL PAY PLAN AND NEGOTIATION
THEREAFTER. AS I UNDERSTAND IT, IT ACKNOWLEDGES A DUTY TO BE RECEPTIVE
TO THE UNION'S ARGUMENTS, VIEWS, OR OPINIONS BEFORE INSTITUTING THE
PROGRAM FOR ENVIRONMENTAL DIFFERENTIAL PAY, AND ASSERTS THAT AFTER
CONSULTATION OCCURS CONCERNING THE BROAD OUTLINES OF THE PROGRAM,
NEGOTIATION SHOULD TAKE PLACE REGARDING ANY DIFFERENCES OF OPINION AS TO
ITS ACTUAL APPLICATION TO PARTICULAR JOB ASSIGNMENTS ON THE BASE. IN
THIS CONNECTION IT POINTS TO AN AWARD OF ARBITRATOR MILTON FRIEDMAN /9/
IN WHICH HE HELD:
CONSULTATION DOES NOT INVOLVE MORE THAN HONEST AND SINCERE REVIEW AND
CONSIDERATION OF THE UNION'S POSITION PRIOR TO IMPLEMENTATION. IT DOES
NOT INVOLVE UNION PARTICIPATION IN MANAGERIAL THINKING AT THE INITIAL
STAGES.
RESPONDENT APPARENTLY RELIES ON THIS IN TWO RESPECTS: THAT IT HAD NO
DUTY BY WAY OF CONSULTATION TO INVITE THE UNION INTO THE FORMATIVE
STAGES OF ITS EFFORT TO FASHION BASE REGULATION 40-4 FROM FPM LETTER
532-17, AND IT HAD NO DUTY LATER, BY WAY OF NEGOTIATION, TO PROVIDE THE
UNION WITH THE CONTENT OF ALL ITS FILES ON ENVIRONMENTAL DIFFERENTIAL
PAY.
RESPONDENT FURTHER ARGUES THAT IT DID, IN FACT, MEET ITS OBLIGATION
TO CONSULT BY MEETING WITH THE UNION AND PROVIDING IT WITH THE FPM
LETTER, AND BY SOLICITING ITS VIEWS ABOUT THE PROPOSED BASE REGULATION
BEFORE IT WENT INTO EFFECT. IT ALSO ARGUES THAT THE DUTY TO NEGOTIATE
WHICH AROSE AFTER THE PLAN BECAME EFFECTIVE, WITH RESPECT TO THE PRECISE
IMPACT OF THE PLAN ON PARTICULAR WORK ASSIGNMENTS AT THE VASE, HAS BEEN
DISCHARGED, AND THAT THE SPECIAL PAY CLAUSE NEGOTIATED BY THE PARTIES IS
THE RESULT OF SUCH GOOD FAITH BARGAINING. IN EFFECT, IT ASSERTS THAT
THE CONTINUING DUTY TO CONSULT URGED BY THE UNION WAS INAPPLICABLE AFTER
THE EFFECTIVE DATE OF THE PLAN, AND THAT IT WAS IN ANY EVENT FULFILLED
BY ITS DISCHARGE OF THE BROADER DUTY TO NEGOTIATE.
AFTER FPM LETTER 532-17 WAS ISSUED, SEVERAL APPARENTLY UNPRODUCTIVE
MEETINGS TOOK PLACE WITH THE UNION. THEREAFTER, ON APRIL 29, 1971, THE
ACTIVITY REQUESTED THE UNION'S VIEWS ON A PROPOSED BASE REGULATION WHICH
WOULD IMPLEMENT THE CIVIL SERVICE COMMISSION DIRECTIVE ON THE BASE
(R-2). ATTACHED TO THE PROPOSED REGULATION WAS APPENDIX J WHICH HAD NOT
BEEN CHANGED. THE UNION'S RESPONSE (R-3) WAS HIGHLY CRITICAL OF
MANAGEMENT'S APPROACH AND CALLED FOR FACE TO FACE CONFRONTATION. ON
SEPTEMBER 7, 1971, MANAGEMENT AGAIN REQUESTED THE UNION'S VIEWS OF A
PROPOSED BASE REGULATION (R-4) IN A LETTER WHICH I HAVE FOUND WAS NEVER
DELIVERED. ON NOVEMBER 26, 1971, BASE REGULATION 40-4 BECAME EFFECTIVE.
AGAIN APPENDIX J, DESCRIBING THE CATEGORIES OF WORK FOR WHICH A
DIFFERENTIAL WAS TO BE PAID, WAS THE SAME IN CONTENT AS THE APPENDIX J
ATTACHED TO THE FPM LETTER.
THUS, IT IS CLEAR ON THIS RECORD THAT THE ACTIVITY TRIED TO KEEP THE
UNION INFORMED AND DID SEEK ITS VIEWS ON A PROPOSED BASE REGULATION
IMPLEMENTING THE FPM LETTER. SECTION 11(A) OF THE ORDER LIMITS THE
SCOPE OF THE BARGAINING OBLIGATION "SO FAR AS MAY BE APPROPRIATE UNDER
APPLICABLE LAWS AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE
FEDERAL PERSONNEL MANUAL * * *." THUS, I VIEW FPM LETTER 532-17 AS
ACCURATELY STATING THE CIRCUMSTANCES IN WHICH CONSULTATION OR
NEGOTIATION IS TO OCCUR: (1) WHERE A DETERMINATION IS REQUIRED
CONCERNING "THE COVERAGE OF ADDITIONAL LOCAL SITUATIONS UNDER
APPROPRIATE CATEGORIES IN APPENDIX J OR FOR DETERMINING ADDITIONAL
CATEGORIES NOT INCLUDED IN APPENDIX J FOR WHICH ENVIRONMENTAL
DIFFERENTIAL IS CONSIDERED TO WARRANT COMPENSATION COMMENCES, AND (2)
WHERE DIFFERENTIAL PAY EXISTED PRIOR TO THE EFFECTIVE DATE OF THE FPM
LETTER, AND THE AGENCY WAS REQUIRED TO QUICKLY IDENTIFY AND EXPLAIN THE
LOCAL SITUATION(S) TO CIVIL SERVICE COMMISSION AND TO CONSULT WITH, AND
FORWARD THE VIEWS OF, THE EXCLUSIVE BARGAINING REPRESENTATIVES. AS
INDICATED EARLIER, THERE IS NO EVIDENCE THAT THE LATTER SITUATION
OBTAINED AT MCGUIRE. HENCE THE INQUIRY NARROWS DOWN TO WHETHER THE
ACTIVITY FULFILLED THE OBLIGATION TO CONFER, CONSULT, OR NEGOTIATE IN
THE CIRCUMSTANCES DESCRIBED IN (1).
THERE IS NO INDICATION IN THIS RECORD THAT THE ACTIVITY WAS UNWILLING
TO DISCUSS THE QUESTION WHETHER THERE EXISTED LOCAL SITUATIONS FOR WHICH
EXTRA PAY MIGHT BE WARRANTED BUT WHICH WERE NOT CLEARLY ENCOMPASSED BY
ANY OF THE CATEGORIES DESCRIBED IN APPENDIX J. ON THE CONTRARY, THE
CONTRACT CLAUSE NEGOTIATED BY THE PARTIES PROVIDES A MECHANISM FOR
REFERRAL OF QUESTIONS CONCERNING WHETHER PARTICULAR WORK SITUATIONS ARE
ENCOMPASSED BY CIVIL SERVICE COMMISSION APPROVED CATEGORIES TO THE
GRIEVANCE MACHINERY IF NOT RESOLVED BY NEGOTIATION, AND OF QUESTIONS
CONCERNING THE NEED FOR ADDITIONAL CATEGORIES TO THE COMMISSION AFTER
CONSULTATION. WHERE, IN THE LATTER INSTANCE, CONSULTATION FAILS TO
PRODUCE AGREEMENT, THE PARTY DESIRING THE CHANGE HAS THE BURDEN OF
INITIATING THE REQUEST, SUBMITTING A REPORT AND FORWARDING THE OPPOSING
PARTY'S VIEWS.
THUS, I CONCLUDE THAT BASE REGULATION 40-4 WAS BUT A RESTATEMENT OF
FPM LETTER 532-17 AND THAT INSTITUTION OF THAT BROAD PROGRAM WAS IN THE
CIRCUMSTANCES LAWFUL. THE UNION WAS AWARE OF THE PROGRAM AND ITS
CONTENT, AND SO FAR AS THIS RECORD INDICATES HAD AN OPOORTUNITY TO MAKE
ITS VIEWS KNOWN TO MANAGEMENT. /10/ THE BARGAINING NECESSARY TO
RESOLVE, IF POSSIBLE, QUESTIONS CONCERNING THE APPLICATION OF THE
CATEGORIES ESTABLISHED IN APPENDIX J TO PARTICULAR WORK ASSIGNMENTS WAS
TAKING PLACE AT ALL MATERIAL TIMES, AND CULMINATED IN R-5. WHILE IT IS
OBVIOUS THAT THE PARTIES' RELATIONSHIP FOUNDERED ON DISAGREEMENTS
REGARDING THE MEANING OF "CONSULTATION," I FIND NO EVIDENCE THAT
RESPONDENT REFUSED TO CONFER IN GOOD FAITH ABOUT NEGOTIABLE ITEMS;
NAMELY, WHETHER PARTICULAR JOB ASSIGNMENTS WERE CLEARLY ENCOMPASSED BY
AN EXISTING APPENDIX J CATEGORY, OR WARRANTED REFERRAL TO CIVIL SERVICE
COMMISSION FOR THE RECOGNITION OF A NEW CATEGORY. IN THIS CONTEXT I
WOULD NOT FIND THE INADVERTENT FAILURE TO ENSURE RECEIPT OF RESPONDENT'S
SEPTEMBER 7, 1971 LETTER (R-4) A SUFFICIENT BASIS FOR FINDING A FAILURE
TO CONSULT. IT APPEARS TO ME THAT COMPLAINANT DEMANDED BARGAINING
(CALLED CONSULTATION) ABOUT MANY ASPECTS OF THE PLAN WHICH WERE
NON-NEGOTIABLE DIRECTIVES FROM HIGHER AUTHORITY, AS WELL AS FOR THE
PURPOSE OF RESOLVING QUESTIONS CONCERNING THE COVERAGE OF THE PLAN
BEFORE ITS EFFECTIVE DATE, WHEREAS RESPONDENT MERELY SOLICITED ITS VIEWS
ABOUT THE PLAN AS A PACKAGE, AND TREATED THE BARGAINABLE TABLE AS THE
PROPER FORM FOR NEGOTIATING ANY PROBLEMS OF COVERAGE.
I FAIL TO UNDERSTAND THE UNION'S CONTENTION THAT THE ONGOING
NEGOTIATIONS ARE IRRELEVANT TO THE QUESTION WHETHER APPROPRIATE
CONSULTATION HAS TAKEN PLACE. I DO NOT SEE HOW THE TWO CAN BE DIVORCED.
AT THE DECEMBER 7, 1971 MEETING, RESPONDENT PROFERRED A COUNTERPROPOSAL
TO THE UNION'S CONTRACT PROPOSAL ON ENVIRONMENTAL PAY. AT THE
SUBSEQUENT MEETING IN MARCH 1972 IT APPEARS THAT RESPONDENT PROPERLY
REFUSED TO PRODUCE MATERIALS FROM ITS FILES WITHOUT A PARTICULARIZED
REQUEST. THE UNION APPARENTLY INSISTED UPON ITS RIGHT TO ACCESS TO THE
FILES. I CONCLUDE THAT THE UNION HAD NO RIGHT TO SEE SUCH FILES AND HAD
A DUTY TO BE PARTICULAR ABOUT ANY MATERIAL IT DESIRED. I THEREFOR FIND
NO FAILURE TO PRODUCE INFORMATION NECESSARY FOR THE UNION TO FUNCTION
INTELLIGENTLY.
IN SUM, I CONCLUDE THAT RESPONDENT MET ITS OBLIGATION TO CONSULT WITH
THE UNION ABOUT THE ENVIRONMENTAL DIFFERENTIAL PAY PROGRAM AND THAT IT
HAS, INDEED, CONFERRED IN GOOD FAITH WITH RESPECT TO SO MUCH OF THE PLAN
AS WAS NEGOTIABLE. I THEREFORE FIND NO VIOLATION OF SEC. 19(A)(6) OF
THE ORDER.
I RECOMMEND, IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE, THAT
THE ASSISTANT SECRETARY DISMISS THE COMPLAINT.
DATED: DECEMBER 19, 1973
WASHINGTON, D.C.
/1/ JUDGE'S EXHIBIT NO. 2.
/2/ ALTHOUGH THE UNION ARGUES THAT ITS RIGHT TO CONSULTATION IS
ACKNOWLEDGED IN THIS SECTION, I DO NOT, AS NOTED ABOVE, REGARD IT AS
RELEVANT. SECTION I.(1) IS AN EXCEPTION TO THE POLICY OF WITHHOLDING
PAYMENT OF A DIFFERENTIAL WHERE WORK REGARDED AS WARRANTING SUCH PAYMENT
DOES NOT FALL WITHIN ONE OF THE LISTED CATEGORIES OF APPENDIX J, PENDING
AUTHORIZATION OF SUCH PAYMENT BY THE CIVIL SERVICE COMMISSION. IT
CLEARLY IS CONCERNED WITH THOSE SITUATIONS WHERE AN AGENCY IS ALREADY
PAYING A DIFFERENTIAL FOR WORK WHICH DOES NOT FALL WITHIN A CATEGORY
DEFINED IN APPENDIX J. HENCE THE TIME LIMITATION OF 60 DAYS IN WHICH
THE AGENCY MUST SUBMIT A REPORT TO CIVIL SERVICE COMMISSION ENABLING THE
LATTER TO DECIDE UPON THE NEED FOR AN ADDITIONAL CATEGORY AND THE
INSTRUCTION TO CONSULT WITH, AND FORWARD THE VIEWS OF, THE EXCLUSIVE
BARGAINING REPRESENTATIVE. THIS RECORD CONTAINS NO EVIDENCE THAT ANY
SUCH DIFFERENTIAL WAS BEING PAID BY THE ACTIVITY. THUS, THIS SECTION
WAS NOT OPERATIVE, AND NO OCCASION AROSE TO CONSULT WITH THE UNION OR TO
FORWARD ITS VIEWS ABOUT SUCH MATTERS.
/3/ RESPONDENT'S EXHIBIT NO. 5.
/4/ RESPONDENT'S EXHIBIT NO. 2.
/5/ RESPONDENT'S EXHIBIT NO. 3.
/6/ RESPONDENT'S EXHIBIT NO. 4.
/7/ RESPONDENT'S EXHIBIT NO. 1.
/8/ ATTACHMENT TO ASSISTANT SECRETARY'S EXHIBIT NO. 1-A. RESPONDENT
MOVED AT THE HEARING FOR DISMISSAL OF THE COMPLAINT ON THE GROUND IT WAS
NOT FILED WITHIN 30 DAYS OF RECEIPT OF THIS LETTER, CONTENDING IT TO BE
RESPONDENT'S "FINAL DECISION" WITHIN THE MEANING OF 29 CFR 203.2 THAT
MOTION IS DENIED ON THE GROUND THAT THE LETTER DOES NOT ADEQUATELY
NOTIFY THE UNION THAT THE VIEWS EXPRESSED THEREIN ARE FINAL AND NOT
SUBJECT TO CHANGE AS A RESULT OF FURTHER DISCUSSIONS.
/9/ SEE ASSISTANT SECRETARY'S EXHIBIT 1, ATTACHMENT 3 TO RESPONDENT'S
ANSWER.
/10/ IT APPEARS FROM THE UNION'S FIRST WRITTEN REACTION TO A FORMAL
REQUEST FOR ITS VIEWS, THAT IT DEMANDED NEGOTIATION-- THAT IS TO SAY
FACE TO FACE "CONSULTATION" CONCERNING THE PLAN-- BEFORE IT WAS
IMPLEMENTED, WHEREAS RESPONDENT BELIEVED WRITTEN COMMUNICATION ABOUT THE
PLAN WOULD SUFFICE UNTIL AFTER IMPLEMENTATION, THE DUTY TO NEGOTIATE
AROSE WITH RESPECT TO MATTERS NOT EXPLICITLY COVERED BY APPENDIX J.
4 A/SLMR 383; P. 272; CASE NO. 72-4140; APRIL 30, 1974.
VANDENBERG AIR FORCE BASE,
4392 AEROSPACE SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA
A/SLMR NO. 383
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY LOCAL 1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
VANDENBERG AFB, CALIFORNIA (COMPLAINANT), AGAINST THE VANDENBERG AIR
FORCE BASE, 4392 AEROSPACE SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA
(RESPONDENT). THE COMPLAINANT ALLEGED ESSENTIALLY THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1), (2) AND (6) OF THE ORDER BY CERTAIN ANTIUNION
STATEMENTS MADE BY A SUPERVISOR; BY THE HARASSMENT OF EMPLOYEES BECAUSE
OF THEIR INVOLVEMENT IN A GRIEVANCE FILED BY A FELLOW EMPLOYEE; AND BY
THE REFUSAL TO MEET WITH THE PRESIDENT OF THE COMPLAINANT TO RESOLVE
EMPLOYEES' GRIEVANCES.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
FINDING THAT THE VARIOUS DIRECTIVES ISSUED TO AN EMPLOYEE BY HER
SUPERVISOR WERE NOT IN RETALIATION AGAINST THE EMPLOYEE'S UNION
ACTIVITIES OR HER ASSOCIATION WITH THE COMPLAINANT'S PRESIDENT, AND
THEREFORE, DID NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OR (2) OF
THE ORDER. THE ASSISTANT SECRETARY ALSO ADOPTED THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS THAT THE POLICY ANNOUNCEMENT BY THE CHIEF OF THE BASE
PROCUREMENT DIVISION, UNDER WHICH AN EMPLOYEE AND HIS STEWARD COULD
DISCUSS PROBLEMS WITH THE CHIEF, AND THE RESPONDENT'S INITIAL REFUSAL TO
MEET WITH THE COMPLAINANT'S PRESIDENT, AS AN EMPLOYEE'S CHOSEN
REPRESENTATIVE, INSTEAD OF THE DESIGNATED STEWARD, AS REQUIRED BY THE
NEGOTIATED AGREEMENT, WERE NOT VIOLATIVE OF SECTION 19(A)(1) OR (6) OF
THE ORDER. LASTLY, THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE
LAW JUDGE'S FINDING THAT A SUPERVISOR'S INTERROGATION OF THE EMPLOYEES
IN THE BASE PROCUREMENT DIVISION WITH REGARD TO THEIR UNION AFFILIATION,
AS WELL AS HIS REMARKS REFLECTING DISDAIN FOR AND DISPARAGEMENT OF THE
COMPLAINANT, CONSTITUTED INTERFERENCE, RESTRAINT, OR COERCION IN
VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
THE ASSISTANT SECRETARY REJECTED THE ADMINISTRATIVE LAW JUDGE'S
FINDING THAT THE RESPONDENT'S REFERENCE TO CERTAIN INSTRUCTIONS
CONTAINED IN THE DISCUSSION OF AN EMPLOYEE'S COMPLAINTS WAS VIOLATIVE OF
SECTION 19(A)(1) OF THE ORDER. THE ASSISTANT SECRETARY FOUND THAT THE
RECORD ESTABLISHED THAT THE RESPONDENT DID NOT RESIST THE PRESENCE OF
THE DESIGNATED STEWARD AT THE MEETING HELD TO DISCUSS THE EMPLOYEE'S
COMPLAINTS, BUT REFERRED TO THE SUPERVISORS' HANDBOOK ONLY AS A BASIS
FOR EXPLAINING ITS OBJECTION TO THE REPRESENTATION OF THE EMPLOYEES BY
THE COMPLAINANT'S PRESIDENT RATHER THAN BY THE DESIGNATED STEWARD, AS
PROVIDED FOR IN THE PARTIES' NEGOTIATED AGREEMENT. ACCORDINGLY, HE
CONCLUDED THAT THE RESPONDENT'S CONDUCT, IN THIS REGARD, WAS NOT
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
VANDENBERG AIR FORCE BASE,
4392 AEROSPACE SUPPORT GROUP,
VANDENBERG AFB, CALIFORNIA
AND
LOCAL 1001, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES,
VANDENBERG AFB, CALIFORNIA
ON JANUARY 14, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(1) OF EXECUTIVE ORDER
11491, AS AMENDED, AND RECOMMENDING, AMONG OTHER THINGS, 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 BY THE RESPONDENT NOT TO BE VIOLATIVE OF THE
ORDER. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS AND 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. /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 BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE TO THE EXTENT CONSISTENT HEREWITH.
THE INSTANT COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION
19(A)(1), (2) AND (6) OF THE ORDER BY VIRTUE OF: (A) CERTAIN ANTIUNION
STATEMENTS MADE BY SERGEANT WATRY, A SUPERVISOR, WHICH TENDED TO
DISCOURAGE EMPLOYEES FROM EXERCISING THEIR RIGHTS UNDER THE ORDER; (B)
THE HARASSMENT OF EMPLOYEES, PARTICULARLY MRS. WILLIE CLIMER, BECAUSE OF
THEIR INVOLVEMENT IN A GRIEVANCE FILED AGAINST SERGEANT WATRY BY A
FELLOW EMPLOYEE; AND (C) THE REFUSAL TO MEET WITH MARIE BROGAN, THE
PRESIDENT OF THE COMPLAINANT, TO RESOLVE EMPLOYEE GRIEVANCES.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT SERGEANT WATRY'S CONDUCT
WITH RESPECT TO EMPLOYEE CLIMER REGARDING: THE REARRANGEMENT OF STORAGE
BINS; THE REQUIREMENT THAT CLIMER RECEIVE AND DISTRIBUTE FORMS WHEN
RELIEVING THE SWITCHBOARD OPERATOR; THE REFUSAL BY WATRY TO DISCUSS A
REGULATION WITH CLIMER; WATRY'S INSISTENCE THAT CLIMER OBTAIN AN
UNAVAILABLE FORM; AND WATRY'S ACCUSATION THAT CLIMER WAS MAINTAINING AN
OBSOLETE FORM IN HER FILES-- WAS IN RETALIATION AGAINST CLIMER BECAUSE
OF HER UNION ACTIVITIES OR HER ASSOCIATION WITH THE COMPLAINANT'S
PRESIDENT. THEREFORE, SUCH CONDUCT WAS NOT VIOLATIVE OF SECTION
19(A)(1) OR (2) OF THE ORDER. ADDITIONALLY, UNDER THE CIRCUMSTANCES, I
AGREE WITH THE ADMINISTRATIVE LAW JUDGE THAT THE POLICY OF BETHAL EVANS,
CHIEF OF THE BASE PROCUREMENT DIVISION, REGARDING THE HANDLING OF
EMPLOYEE PROBLEMS, DID NOT CONSTITUTE A VIOLATION OF EITHER SECTION
19(A)(1) OR (6) OF THE ORDER. FURTHER, I AGREE WITH THE ADMINISTRATIVE
LAW JUDGE THAT, UNDER THE CIRCUMSTANCES HEREIN, THE RESPONDENT'S INITIAL
REFUSAL TO MEET WITH BROGAN AS CLIMER'S CHOSEN REPRESENTATIVE DID NOT
CONSTITUTE AN IMPROPER DENIAL OF UNION REPRESENTATION OR A FAILURE TO
RECOGNIZE THE COMPLAINANT IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
LASTLY, NOTING PARTICULARLY THE CREDIBILITY RESOLUTIONS BY THE
ADMINISTRATIVE LAW JUDGE, I FIND THAT WATRY'S INTERROGATION OF THE
EMPLOYEES IN THE BASE PROCUREMENT DIVISION ON OR ABOUT AUGUST 31, 1972,
WITH RESPECT TO THEIR UNION AFFILIATION WAS VIOLATIVE OF SECTION
19(A)(1) AND THAT HIS REMARKS TO EMPLOYEES CLIMER, CUNNINGHAM AND THE
OFFICE WORKERS IN EARLY OCTOBER 1972 REFLECTING DISDAIN FOR AND
DISPARAGEMENT OF THE COMPLAINANT, CONSTITUTED ADDITIONAL IMPROPER
INTERFERENCE, RESTRAINT, OR COERCION IN VIOLATION OF SECTION 19(A)(1) OF
THE ORDER.
WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(A)(1) BASED ON
THE RESPONDENT'S REFERENCE TO CERTAIN INSTRUCTIONS IN ITS SUPERVISORS'
LABOR RELATIONS HANDBOOK, WHEN SPEAKING TO CLIMER AND BROGAN ON OR ABOUT
OCTOBER 3, 1972, CONCERNING A COMPLAINT BY THE FORMER, THE
ADMINISTRATIVE LAW JUDGE REASONED THAT WHILE THESE INSTRUCTIONS,
STANDING ALONE, MAY NOT CONFLICT WITH THE ORDER, "WHEN THEY ARE
COMMUNICATED BY MANAGEMENT TO EMPLOYEES-- AT A TIME WHEN THE EMPLOYER IS
RESISTING A REQUEST BY THE EMPLOYEE TO HAVE HER UNION REPRESENTATIVE
PRESENT DURING DISCUSSION OF HER COMPLAINTS-- SUCH CONDUCT IS AN
IMPROPER INFRINGEMENT UPON EMPLOYEES' RIGHTS UNDER THE ORDER." HE
CONCLUDED, THEREFORE, THAT THE RESPONDENT'S USE OF THE SUPERVISORS'
HANDBOOK AND ITS PUBLICATION AND COMMUNICATION TO CLIMER AND BROGAN
"THAT PORTION PERMITTING A SUPERVISOR TO EXCLUDE A UNION STEWARD FROM
REPRESENTING AN EMPLOYEE DURING A DISCUSSION OF THE LATTER'S COMPLAINT,
CONSTITUTE(D) INTERFERENCE, RESTRAINT OR COERCION UNDER SECTION 19(A)(1)
OF THE ORDER."
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, I REJECT THE
FOREGOING CONCLUSION OF THE ADMINISTRATIVE LAW JUDGE. THE RECORD
REVEALS THAT ARTICLE VII, SECTION 4(C) OF THE PARTIES' NEGOTIATED
AGREEMENT PROVIDES IN PART, THAT, "AN EMPLOYEE MAY, AT HIS OR HER
OPTION, REQUEST THE STEWARD DESIGNATED FOR THE PARTICULAR WORK AREA OR A
STEWARD FROM ANOTHER RELATED WORK AREA... TO REPRESENT THE EMPLOYEE IN
PRESENTING A COMPLAINT TO HIS SUPERVISOR." THE EVIDENCE ESTABLISHES THAT
THE RESPONDENT, AT NO TIME, RESISTED THE PRESENCE OF THE UNION STEWARD
AT THE MEETING IN QUESTION. RATHER, IT TEMPORARILY RESISTED THE
PRESENCE OF THE UNION PRESIDENT AT SUCH MEETING, AND, IN THIS LATTER
REGARD, REFERRED TO CERTAIN PORTIONS OF THE SUPERVISORS' HANDBOOK AS THE
BASIS FOR EXPLAINING ITS OBJECTION TO THE REPRESENTATION BY CLIMER BY
THE COMPLAINANT'S PRESIDENT, RATHER THAN BY THE UNION STEWARD AS
PROVIDED FOR IN THE PARTIES' NEGOTIATED AGREEMENT. MOREOVER, THE RECORD
SHOWS THAT THE MATTERS RELATING TO CLIMER'S COMPLAINT ULTIMATELY WERE
DISCUSSED BY THE RESPONDENT, CLIMER AND THE COMPLAINANT'S PRESIDENT AT
THE MEETING INVOLVED. IN THESE CIRCUMSTANCES, I FIND, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S USE OF THE SUPERVISORS'
HANDBOOK DID NOT IMPROPERLY TEND TO INTERFERE WITH, RESTRAIN, OR COERCE
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER. ACCORDINGLY,
I CONCLUDE THAT THE RESPONDENT'S CONDUCT IN THIS REGARD WAS NOT
VIOLATIVE OF SECTION 19(A)(1).
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 ACTIONS, AS SET FORTH BELOW, DESIGNED TO EFFECTUATE
THE POLICIES OF THE ORDER. HAVING FOUND THAT THE RESPONDENT DID NOT
ENGAGE IN CERTAIN OTHER CONDUCT PROHIBITED BY SECTION 19(A)(1), (2) AND
(6) OF THE ORDER, I SHALL ORDER THAT PORTION OF THE COMPLAINT TO 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 VANDENBERG AIR FORCE
BASE, 4392 AEROSPACE SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING ITS EMPLOYEES AS TO THEIR MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, LOCAL 1001, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, VANDENBERG AFB, CALIFORNIA, OR ANY OTHER LABOR ORGANIZATION.
(B) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
INSTRUCTING OR ADMONISHING THEM TO REFRAIN FROM CONFERRING WITH, OR
GIVING ANY INFORMATION TO, THE PRESIDENT OF LOCAL 1001, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, VANDENBERG AFB, CALIFORNIA, OR ANY
OTHER UNION REPRESENTATIVE, 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 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 VANDENBERG AIR FORCE BASE, 4392 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 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.
(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
ADDITIONAL VIOLATIONS OF SECTION 19(A)(1) AND VIOLATIONS OF SECTION
19(A)(2) AND (6) BE, AND IT HERE BY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 30, 1974
/1/ AT THE HEARING AT IN ITS EXCEPTIONS, THE RESPONDENT CONTENDED
THAT THE ADMINISTRATIVE LAW JUDGE ERRED WITH REGARD TO HIS REJECTION OF
THE RESPONDENT'S OFFER INTO EVIDENCE OF SIGNED STATEMENTS BY SERGEANT
PHILIP WATRY WHO WAS NOT PRESENT AT THE HEARING. THE RESPONDENT ALSO
FILED A MOTION WITH ITS EXCEPTIONS IN WHICH IT REQUESTED THE ASSISTANT
SECRETARY TO REOPEN THE HEARING FOR THE PURPOSE OF TAKING THE TESTIMONY
OF WATRY AND OTHER WITNESSES HAVING KNOWLEDGE OF THE COMPLAINANT'S
ALLEGATIONS WITH RESPECT TO STATEMENTS MADE BY WATRY, INCLUDING HIS
QUESTIONING OF EMPLOYEES CONCERNING THEIR UNION AFFILIATION. IN MY
OPINION, AT THE TIME OF THE HEARING IN THIS MATTER AND PRIOR THERETO,
THE RESPONDENT WAS ON NOTICE OF THE ALLEGATIONS CONTAINED IN THE INSTANT
COMPLAINT AND HAD THE RESPONSIBILITY TO PRODUCE ANY WITNESSES, HAVING
DIRECT KNOWLEDGE OF THE EVENTS HEREIN, WHO WOULD BE SUBJECT TO
APPROPRIATE EXAMINATION AND CROSS EXAMINATION. UNDER THESE
CIRCUMSTANCES, THE RESPONDENT'S MOTION IS HEREBY DENIED AND THE
ADMINISTRATIVE LAW JUDGE'S RULING EXCLUDING FROM EVIDENCE SERGEANT
WATRY'S SIGNED STATEMENTS IS HEREBY AFFIRMED.
WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO THEIR MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, LOCAL 1001, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, VANDENBERG AFB, CALIFORNIA, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT INSTRUCT OR ADMONISH OUR EMPLOYEES TO REFRAIN FROM
CONFERRING WITH, OR GIVING ANY INFORMATION TO, THE PRESIDENT OF LOCAL
1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, VANDENBERG AFB,
CALIFORNIA, OR ANY OTHER UNION REPRESENTATIVE, CONCERNING GRIEVANCES,
PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL
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 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
IN THE MATTER OF
VANDENBERG AIR FORCE BASE
4392 AEROSPACE SUPPORT GROUP
VANDENBERG AFB, CALIFORNIA,
AND
LOCAL 1001, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES,
VANDENBERG, AFB, CALIFORNIA.
CAPTAIN CHARLES L. WIEST, JR.
HEADQUARTERS 15 AF/JA
MARCH AIR FORCE BASE, CALIFORNIA 92508
FRANK SPRAQUE, ESQ.
4392D ASG (JA)
VANDENBERG AIR FORCE BASE, CALIFORNIA
MRS. MARIE C. BROGAN
P.O. BOX 1935
VANDENBERG AIR FORCE BASE, CALIFORNIA 93437
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON SEPTEMBER 28,
1973 BY THE ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES OF
THE UNITED STATES DEPARTMENT OF LABOR, SAN FRANCISCO REGION, A HEARING
WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON OCTOBER 15, 1973 AT
SANTA MARIA, CALIFORNIA.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491 (HEREIN
CALLED THE ORDER) BY THE FILING OF A COMPLAINT ON APRIL 9, 1973 BY LOCAL
1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (HEREIN CALLED
COMPLAINANT) AGAINST VANDENBERG AIR FORCE BASE, 4392 AEROSPACE SUPPORT
GROUP, VANDENBERG AIR FORCE BASE, CALIFORNIA, (HEREIN CALLED RESPONDENT)
ALLEGING VIOLATIONS OF SECTIONS 19(A)(1), (2), AND (5) OF THE ORDER. A
SECOND AMENDED COMPLAINT, UPON WHICH THE NOTICE OF HEARING WAS BASED,
ALLEGED VIOLATIONS BY RESPONDENT OF SECTIONS 19(A)(1), (2), AND (6) OF
THE ORDER BY REASON OF (A) CERTAIN ANTI-UNION STATEMENTS MADE BY SGT.
WATRY WHICH TENDED TO DISCOURAGE EMPLOYEES FROM EXERCISING THEIR RIGHTS
UNDER THE ORDER, (B) THE HARASSMENT OF EMPLOYEES, PARTICULARLY MRS.
WILLIE CLIMER, BECAUSE OF THEIR INVOLVEMENT IN A GRIEVANCE FILED BY A
FELLOW EMPLOYEE WITH THE AGENCY, (C) THE REFUSAL TO MEET WITH MARIE
BROGAN, PRESIDENT OF COMPLAINANT, TO RESOLVE EMPLOYEES' GRIEVANCES, AND
THUS REFUSING TO GRANT RECOGNITION TO THE UNION HEREIN. THE LETTER OF
TRANSMITTAL FROM THE ASSISTANT REGIONAL DIRECTOR, WHICH ACCOMPANIED THE
NOTICE OF HEARING, RECITED THAT EVIDENCE SHOULD BE ADDUCED AS TO WHETHER
RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BY, INTER
ALIA, (A) STATEMENTS MADE BY SGT. WATRY WHICH MAY HAVE INTERFERED WITH
EMPLOYEES' RIGHTS UNDER THE ORDER; (B) THE SUPERVISORS' USE OF THE
SUPERVISOR'S LABOR RELATIONS HANDBOOK SO AS TO DENY REPRESENTATION
AND/OR RECOGNITION TO THE COMPLAINANT.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER THE PARTIES 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 OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES SINCE ABOUT MAY 22, 1970, COMPLAINANT HAS BEEN THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S NON-PROFESSIONAL
EMPLOYEES AT VANDENBERG AIR FORCE BASE, CALIFORNIA.
2. AT ALL TIMES MATERIAL HEREIN, AND SINCE ABOUT MAY 17, 1971,
COMPLAINANT AND RESPONDENT HAVE BEEN PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT /1/ COVERING THE AFORESAID EMPLOYEES IN RESPECT TO CERTAIN
TERMS AND CONDITIONS OF EMPLOYMENT. PERTINENT AND APPLICABLE PROVISIONS
OF THE SAID AGREEMENT ARE AS FOLLOWS:
1. ...MANAGEMENT AGREES TO RECOGNIZE STEWARDS AS REPRESENTATIVES OF
THE UNION...
3. IT IS THE PURPOSE AND INTENT OF THIS ARTICLE TO SETTLE AND
RESOLVE EMPLOYEE COMPLAINTS PROMPTLY AND EQUITABLY AT THE LOWEST
SUPERVISORY LEVEL.. FORMAL PROCEDURES SHOULD BE RESORTED TO ONLY WHERE
OTHER ATTEMPTS AT RESOLUTION OF THE PROBLEM FAIL...
4. IN ORDER TO ACCOMPLISH THE FOREGOING PRINCIPLES AND POLICIES, THE
FOLLOWING PROCEDURES ARE HEREBY AGREED TO BY UNION AND MANAGEMENT TO
RESOLVE COMPLAINTS,
A. A COMPLAINT IS A MATTER OF PERSONAL CONCERN OF AN EMPLOYEE IN THE
UNIT WHICH HE HAS UNSUCCESSFULLY ATTEMPTED TO RESOLVE WITH HIS IMMEDIATE
SUPERVISOR AND WHICH PERTAINS TO SUCH MATTERS AS WORKING CONDITIONS AND
ENVIRONMENT AND RELATIONSHIPS WITH SUPERVISORS AND WITH OTHER EMPLOYEES
AND OFFICIALS.
B. THE RIGHT OF AN EMPLOYEE TO PRESENT A COMPLAINT TO HIS IMMEDIATE
SUPERVISOR WITHOUT INTERFERENCE OR THREAT OF REPRISAL IS RECOGNIZED BY
UNION AND MANAGEMENT, AS IS THE RIGHT OF THE EMPLOYEE TO HANDLE HIS OWN
COMPLAINT IN HIS OWN WAY.
C. AN EMPLOYEE MAY, AT HIS OR HER OPTION, REQUEST THE STEWARD
DESIGNATED FOR THE PARTICULAR WORK AREA... TO REPRESENT THE EMPLOYEE IN
PRESENTING A COMPLAINT TO HIS SUPERVISOR. /2/
3. ON OR ABOUT MAY 7, 1971, RESPONDENT ISSUED A SUPERVISORS'
LABOR-RELATIONS HANDBOOK /3/ (VANDENBERG AIR FORCE BASE-WIDE UNIT),
WHICH WAS IN EFFECT AT ALL TIMES MATERIAL HEREIN, AND THE SAID HANDBOOK
CONTAINED THE AGREEMENT BETWEEN THE PARTIES HEREIN, AS WELL AS COMMENTS
REGARDING THE PROVISIONS THEREOF AND ADVICE AND INSTRUCTIONS TO
SUPERVISORS IN IMPLEMENTING SAID TERMS AND PROVISIONS OF THE AGREEMENT.
THE HANDBOOK CONTAINS A SECTION DESIGNATED AS PART III, SUPERVISORS AND
STEWARDS, B. PROCESSING COMPLAINTS AND GRIEVANCES AND PROVIDES, INTER
ALIA, UNDER THE HEADING "COMPLAINTS" AS FOLLOWS:
"...ALTHOUGH THE AGREEMENT PROTECTS YOUR RIGHT TO DEAL WITH
DISSATISFACTIONS ON A ONE-FOR-ONE BASIS (I.E., YOU AND YOUR EMPLOYEE),
BY DEFINING A COMPLAINT AS SOMETHING WHICH AN EMPLOYEE HAS
UNSUCCESSFULLY ATTEMPTED TO RESOLVE WITH YOU, YOU MAY FIND THAT THE
EMPLOYEE SHOULD HAVE TAKEN THE MATTER TO THE STEWARD FIRST..IF YOU FEEL
THAT THE ONLY WAY THAT THE COMPLAINT IS TO BE RESOLVED IS THROUGH THE
STEWARD'S INTERCESSION, THEN BY ALL MEANS GET HIM INVOLVED. HOWEVER, IF
YOU FEEL THAT THE STEWARD IS INTERCEDING WHERE THE ONE-FOR-ONE PRINCIPLE
MIGHT RESULT IN SIMPLE RESOLUTION WITHOUT A THIRD PARTY (I.E. BETWEEN
YOU AND THE EMPLOYEE), THEN STAND ON THE RIGHT GIVEN TO YOU IN THE
AGREEMENT AND INSIST THAT INITIALLY YOU TALK TO THE EMPLOYEE ALONE."
(UNDERSCORING SUPPLIED)
4. AT ALL TIMES MATERIALS HEREIN A REGULATION DATED SEPTEMBER 15,
1971, DESIGNATED AF REGULATION 40-771, WAS ADOPTED AND ADHERED TO BY
RESPONDENT WHICH GOVERNED APPEAL AND GRIEVANCE PROCEDURES APPLICABLE TO
CIVILIAN EMPLOYEES AT THE VANDENBERG AIR FORCE BASE. THIS REGULATION
PROVIDES FOR THE INFORMAL PRESENTATION, ORAL OR WRITTEN, BY AN EMPLOYEE
OF A GRIEVANCE REGARDING PERSONAL RELIEF IN A MATTER OF "CONCERN OR
DISSATISFACTION WHICH IS SUBJECT TO THE CONTRACT OF AIR FORCE
MANAGEMENT." IT ALSO PROVIDES THAT AN EMPLOYEE MAY BE REPRESENTED AND
ACCOMPANIED BY ONE REPRESENTATIVE OF HIS CHOICE AT ANY STAGE OF THE
PROCEEDING, BUT THE REPRESENTATIVE MUST BE DESIGNATED BY THE EMPLOYEE IN
WRITING WHEN HE PRESENTS HIS GRIEVANCE. THE REGULATION SETS FORTH
FORMAL GRIEVANCE PROCEDURES IN THE EVENT NO RESOLUTION IS MADE AT THE
INFORMAL STAGE. /4/
5. ON OR ABOUT AUGUST 31, 1972, EMPLOYEE JUNE PEDERSON, WHO WORKED
IN THE BASE PROCUREMENT OFFICE FILED A GRIEVANCE AGAINST SGT. WATRY,
SUPERVISOR OF THE EMPLOYEES IN THAT DEPARTMENT, BASED ON HER FAILURE, TO
OBTAIN A PROMOTION AND BEING BY-PASSED THEREFOR. SEVERAL DAYS LATER
MARIE BROGAN, PRESIDENT OF COMPLAINANT UNION, ASKED EMPLOYEE MRS. WILLIE
E. CLIMER IF SHE KNEW ANYTHING WHICH WOULD HELP PEDERSON IN HER CASE.
CLIMER SAID SHE DID, AND BROGAN ASKED HER TO BE A WITNESS AT A
FORTHCOMING HEARING CONCERNING PEDERSON'S GRIEVANCE. CLIMER WAS
RELUCTANT TO APPEAR AS A WITNESS AND BROGAN STATED SHE MIGHT HAVE TO
SUBPOENA HER.
6. ON THE SAME DAY AS SHE TALKED TO BROGAN, CLIMER TOLD DANI LUCAS,
SECRETARY OF THE BRANCH, THAT SHE MAY HAVE DONE SOMETHING WRONG BECAUSE
SHE "TOLD MARIE BROGAN SOME INFORMATION" AND THE PRESIDENT OF THE UNION
IS GOING TO SUBPOENA HER. LUCAS REPLIED MARIE IS ALL RIGHT, BUT CLIMER
SHOULD NOT TELL HER ANYTHING BECAUSE SHE IS OUT TO GET INFORMATION
ANYWAY POSSIBLE.
7. A FEW DAYS AFTER HER CONVERSATION WITH THE UNION PRESIDENT AND
THE BRANCH SECRETARY, CLIMER OVERHEARD SGT. WATRY ASK CAROL CUNNINGHAM,
AN OFFICE EMPLOYEE, IF SHE HAD BRAGGED ABOUT BEING PROMISED A JOB BY
HIM. CUNNINGHAM DENIED SUCH CONDUCT, WHEREUPON WATRY TOLD HER NOT TO
SAY ANYTHING TO ANYONE, ESPECIALLY BROGAN, BECAUSE THE LATTER WOULD BE
RETURNING TO GET INFORMATION FOR PEDERSON'S HEARING.
8. UNCONTRADICTED TESTIMONY BY CLIMER REVEALS, AND I FIND, THAT
ABOUT THE TIME PEDERSON FILED HER GRIEVANCE, AUGUST 31, 1972, WATRY
SPOKE TO SEVERAL GIRLS IN THE OFFICE. HE ASKED HOW MANY OF THEM WERE IN
THE UNION, AND CLIMER RECALLS THAT SHE AND MRS. SPEAKS REPLIED THEY WERE
MEMBERS. WATRY SAID THAT ANYTHING TALKED ABOUT IN THAT SECTION WAS TO
BE KEPT BACK THERE-- NOT TOLD ALL OVER THE OFFICE OR "TO GET BACK TO
MARIE BROGAN."
9. EARLY IN OCTOBER, 1972, CLIMER WAS AT HER DESK TALKING TO BROGAN.
UPON APPROACHING THE DESK WATRY TOLD CLIMER TO KEEP HER MOUTH SHUT AND
SAY NOTHING-- THAT BROGAN WOULD BE COMING, OR SNOOPING, AROUND FOR
INFORMATION, AND HE DIDN'T WANT ANYONE IN HIS SECTION GIVING OUT
INFORMATION TO THE UNION.
10. CLIMER HAS BEEN EMPLOYED BY RESPONDENT FOR OVER NINE YEARS, AND
AT ALL TIMES MATERIAL HEREIN SHE HAD BEEN THE PUBLICATION CLERK IN THE
BASE PROCUREMENT OFFICE. SHE TAKES CARE OF THE PUBLICATION, ORDERING
NECESSARY FORMS AND MAKES CERTAIN THAT COPIES ARE FURNISHED TO ALL
EMPLOYEES. SHORTLY AFTER HER DISCUSSIONS WITH BROGAN AND LUCAS RE THE
PEDERSON GRIEVANCE, WATRY ENGAGED IN CERTAIN ACTS DIRECTED TOWARD CLIMER
WHICH THE LATTER CONSIDERED TO BE HARASSMENT. THOSE WERE AS FOLLOWS:
(A) THE SUPERVISOR SAID SHE WAS KEEPING OBSOLETE FORMS IN THE FILE, AND
HE INSISTED SHE OBTAIN A CERTAIN FORM WHICH SHE CLAIMS HE KNEW WAS NOT
AVAILABLE; (B) CLIMER TESTIFIED SHE ATTEMPTED TO TALK TO WATRY
REGARDING A SUPPLEMENTAL REGULATION GOVERNING FORM REPRODUCTIONS.
DESPITE THE FACT THAT THE SUPERVISOR SOLICITED HER COMMENTS, HE REFUSED
TO SIT DOWN AND TALK TO HER; (C) WITHOUT AN EXPLANATION AS TO THE
REASON THEREFOR, WATRY INSISTED SHE REMOVE FORMS FROM THE BINS AND ALSO
DIRECTED HER TO REARRANGE THE STORAGE BINS. SHE LEARNED LATER THAT THE
REMOVAL WAS TO MAKE SPACE AVAILABLE FOR A SMALL XEROX MACHINE WHICH WAS
PUT IN THE OFFICE; (D) CLIMER WAS ALSO DIRECTED BY WATRY TO WORK AS A
RELIEF OPERATOR AT THE SWITCHBOARD ON THE FRONT DESK, WHICH, CLIMER
CONTENDS, REQUIRED DISTRIBUTING ORDERS AS WELL AS SWITCHBOARD DUTIES.
SHE ALLEGES THIS WAS WORK FOR WHICH SHE WAS NOT TRAINED, HAD NOT BEEN
ASSIGNED TO DO PREVIOUSLY, AND WAS NOT REQUIRED OF OTHERS.
11. ON ABOUT OCTOBER 3, 1972, CLIMER MET WITH MR. PREM, DEPUTY
CHIEF, PROCUREMENT DIVISION, REGARDING HER DIFFICULTIES WITH WATRY.
INITIALLY, PREM SAID CLIMER WOULD HAVE TO PUT HER COMPLAINT IN WRITING,
BUT THEN AGREED TO TALK ON AN INFORMAL BASIS. RESPONDENT'S OFFICIAL
ALSO REFUSED AT FIRST TO MEET WITH BROGAN PRESENT, ALTHOUGH HE AGREED TO
CONFER WITH CLIMER AND ARLENE JOHNSON, UNION STEWARD, IN THE BASE
PROCUREMENT OFFICE. AN HOUR LATER HE RELENTED AND TOLD CLIMER SHE COULD
BRING BROGAN TO THE MEETING. CLIMER SOUGHT OUT BROGAN AND BROUGHT THE
LATTER BACK INTO THE OFFICE.
PREM STATED THE PROPER REPRESENTATIVE OF CLIMER WAS THE UNION STEWARD
AND HE BELIEVED IT WAS ILLEGAL FOR BROGAN TO REPRESENT HER. WHEN THE
PRESIDENT OF THE UNION ASKED HIM WHAT PREVENTED HIS DEALING WITH HER,
PREM REFERRED TO PAGE 133 OF THE SUPERVISORS' HANDBOOK WHICH RECITED
THAT THE SUPERVISOR MIGHT DEAL WITH THE EMPLOYEE ALONE WHEN HANDLING
COMPLAINTS. BROGAN REMARKED THAT THE SUPERVISOR WAS FOLLOWING THE
HANDBOOK INFORMATION, BUT THAT UNDER THE CONTRACT CLIMER IS ENTITLED TO
HAVE HER REPRESENTATIVE-- THE UNION HEREIN-- PRESENT TO ACT FOR HER;
AND FURTHER, THE CITED MATERIAL IN THE HANDBOOK CONFLICTED WITH AIR
FORCE REGULATION 40-771. AT BROGAN'S SUGGESTION A TELEPHONE CALL WAS
MADE TO MRS. JETER, RESPONDENT'S EMPLOYEE RELATIONS SPECIALIST. AFTER
HE SPOKE TO JETER, PREM AGREED TO DISCUSS CLIMER'S PROBLEMS WITH BROGAN.
EACH OF WATRY'S ALLEGED ACTS OF HARASSMENT WERE REVIEWED BY PREM IN
DETAIL, INCLUDING ANTI-UNION COMMENTS BY WATRY AS WELL AS HIS
QUESTIONING OF EMPLOYEES RE THEIR UNION MEMBERSHIP. PREM AGREED WITH
CLIMER AS TO THE USE OF A STAMPED FORM BUT SAID HE SAW NOTHING WRONG
WITH WATRY'S DIRECTIVES AS TO THE MOVING OF STORAGE BINS OR THE
ASSIGNMENT TO CLIMER OF SPECIAL SWITCHBOARD DUTIES. HE ALSO MENTIONED
THAT WATRY'S COMMENTS WERE, AS HE BELIEVED, PROPER AS FREE SPEECH.
12. A LETTER /5/ DATED OCTOBER 11, 1972, WAS SENT TO CLIMER FROM
EVANS REGARDING HER COMPLAINTS AGAINST WATRY. IN RESPECT TO (A) THE
ORDER BY WATRY TO REARRANGE THE BINS, IT WAS DETERMINED THAT SINCE HE IS
THE CHIEF OF OPERATIONS HIS VIEWS WERE TO BE RESPECTED AND THE ORDER
WOULD NOT BE COUNTERMANDED; (B) THE REQUIREMENT THAT CLIMER DISTRIBUTE
ORDERS WHILE AT THE SWITCHBOARD-- WHICH SHE AVERS WAS NOT REQUIRED OF
OTHERS-- IT WAS DETERMINED THAT ALL PERSONNEL WORKING AS RELIEF
SWITCHBOARD OPERATORS WOULD BE REQUIRED TO DISTRIBUTE ORDERS IN THE
FUTURE.
13. IN EARLY OCTOBER THERE WAS A GENERAL MEETING OF EMPLOYEES AT
WHICH COLONEL BETHEL O. EVANS, III, CHIEF OF PROCUREMENT DIVISION,
STATED, INTER ALIA, THAT HIS DOOR IS ALWAYS OPEN TO ANYONE WHO DESIRES
TO COME DIRECTLY TO HIM TO DISCUSS ANY PROBLEMS. COLONEL EVANS
TESTIFIED, AND I FIND, THAT HE ESTABLISHED AN OPEN DOOR POLICY WHEN HE
FIRST TOOK OVER AS CHIEF OF THIS DIVISION IN JULY 1970. HE SAID THEN
THAT HE WOULD TALK TO ANYBODY AT ANY TIME CONCERNING ANY PROBLEM, AND
THE EMPLOYEE COULD BRING THE UNION STEWARD, AND ANYONE ELSE, WITH HIM TO
THE DISCUSSION.
14. EVANS HAD ALSO RECEIVED A COMPLAINT REGARDING WATRY'S CONDUCT
FROM ANOTHER EMPLOYEE, LUCILLE DODSON, SWITCHBOARD OPERATOR. DODSON
FELT THAT WATRY WAS ISSUING ORDERS RATHER THAN REQUESTS AND WAS ABRUPT
WITH HER. EVANS EXPLAINED THAT MILITARY SUPERVISORS MIGHT HANDLE
CIVILIAN EMPLOYEES TOO CURTLY. HE SUGGESTED DODSON SPEAK TO WATRY AND
THEN RETURN IF THEY COULD NOT RESOLVE THE PROBLEM.
15. ON ABOUT OCTOBER 12, CLIMER WAS AT HER DESK WHEN SHE AND WATRY
ENGAGED IN AN ARGUMENT OVER AIR FORCE REGULATION 6-1. UPON HER REFUSAL
TO TURN OVER THE REGULATION TO WATRY, THE SUPERVISOR SAID HE WOULDN'T
SIGN HER TIME CARD. AT THIS JUNCTURE EVANS WALKED BY, ASKED WHAT WAS
WRONG, AND CLIMER INFORMED HIN OF WHAT OCCURRED. AFTER COMMENTING THAT
CLIMER DID NOT HAVE TO GIVE WATRY THE REGULATION, EVANS ASKED THEM TO
COME TO THE CONFERENCE ROOM. THE COLONEL INQUIRED WHAT WAS WRONG, AND
CLIMER COMPLAINED THAT WATRY WAS HARASSING HER. WHEN EVANS ASKED HER TO
TELL HIM THE DETAILS, CLIMER SUGGESTED HE OBTAIN THEM FROM WATRY. EVANS
STATED HE HAD A MEETING TO ATTEND, INSTRUCTED TO RETURN AFTER LUNCH, AND
REMARKED HE MIGHT HAVE THE UNION STEWARD, JOHNSON, ATTEND THE SESSION.
CLIMER THEN ASKED, "HOW ABOUT MY REPRESENTATIVE?" AND SHE MENTIONED
BROGAN BY NAME. EVANS AGREED, AND SAID THEY WOULD HAVE SOMEONE FROM CPO
ALSO. /6/ EVANS CALLED JETER, THE EMPLOYEE RELATIONS SPECIALIST, TO
ATTEND THE CONFERENCE, BUT IT NEVER WAS HELD SINCE BROGAN REDUCED THE
GRIEVANCE TO AN UNFAIR LABOR PRACTICE CHARGE WHICH EVANS FOUND ON HIS
DESK UPON RETURNING FROM LUNCH. EVANS CONTACTED JETER, INFORMED HER OF
WHAT OCCURRED AND THAT THE CHARGE WAS ON HIS DESK. THEY DISCUSSED
WHETHER IT WOULD BE WORTHWHILE TO HOLD THE MEETING. JETER TELEPHONED
LATER ON TO INFORM EVANS THAT BROGAN REFUSED TO TALK FURTHER ON THE
MATTER.
16. AT ALL TIMES MENTIONED HEREIN CLIMER ORALLY REQUESTED BROGAN TO
BE HER REPRESENTATIVE DURING DISCUSSIONS WITH WATRY AND EVANS, BUT SUCH
REQUEST WAS NEVER REDUCED TO WRITING.
COMPLAINANT CONTENDS THAT RESPONDENT, THROUGH SGT. WATRY, ENGAGED IN
CERTAIN CONDUCT TOWARD CLIMER WHICH CONSTITUTES DISCRIMINATION UNDER
19(A)(2) OF THE ORDER, AS WELL AS INTERFERENCE, RESTRAINT, AND COERCION
UNDER 19(A)(1) THEREOF.
IT DEEMS THE VARIOUS ORDERS ISSUED BY WATRY TO CLIMER REGARDING HER
DUTIES, AS WELL AS REASSIGNMENT OF TASKS, TO REFLECT HARASSMENT.
MOREOVER, ARGUES THE UNION, THE ACTIONS TAKEN BY CLIMER'S SUPERVISOR
WERE AS A RESULT OF HER PROTECTED ACTIVITIES ON BEHALF OF HER FELLOW
EMPLOYEES AND ASSISTANCE RENDERED BY HER TO THE UNION PRESIDENT.
THE ORDER IS DESIGNED, INTER ALIA, TO PROTECT EMPLOYEES WHO FORM,
JOIN OR ASSIST LABOR ORGANIZATIONS AND ENGAGE IN OTHERWISE PROTECTED
ACTIVITIES. DISCRIMINATORY TREATMENT OF EMPLOYEES FOR HAVING ENGAGED IN
SUCH CONDUCT WILL BE VIEWED AS AN UNFAIR PRACTICE UNDER THE ORDER.
APPLYING THESE PRINCIPLES TO THE CASE AT BAR, I AM NOT PERSUADED THAT
THE TASKS ASSIGNED TO CLIMER WERE EITHER DISCRIMINATORY IN NATURE OR
MOTIVATED BY HER ACTIONS ON BEHALF OF THE UNION OR HER FELLOW EMPLOYEES.
(1) WATRY'S ORDER OR DIRECTIVE TO CLIMER REGARDING THE REARRANGEMENT
OF THE STORAGE BINS WAS TO ACCOMMODATE THE XEROX MACHINE WHICH WAS TO BE
PLACED IN THE OFFICE. SINCE THE AGENCY HAD BEEN HAVING PROBLEMS WITH
THE NUMBER OF FORM REPRODUCTIONS, IT ATTEMPTED TO COPE WITH THE MATTER
BY CONTROLLING THE REPRODUCED FORMS. HENCE THE DECISION WAS MADE TO
UTILIZE THE TABLE MODEL XEROX MACHINE. AS A RESULT THEREOF, IT WAS
NECESSARY TO MOVE SOME BINS OUT OF THE OFFICE. ALTHOUGH CLIMER WAS NOT
APPRISED OF THE REASON PROMPTING THE REARRANGEMENT OF THE BINS AND THE
REMOVAL OF FORMS, THERE IS NO EVIDENCE TO ESTABLISH THAT IT WAS OTHER
THAN ECONOMIC IN NATURE. FURTHER, NO RECORD OF FACTS SUPPORT A FINDING
THAT THE DIRECTIVE, IN THIS RESPECT, WAS ISSUED TO EITHER EMBARRASS
CLIMER OR HARASS HER. ON THE BASIS OF THE RECORD HEREIN, I CONCLUDE
THAT THE ASSIGNMENT OF THIS TASK TO CLIMER WAS WITHIN THE SCOPE OF HER
DUTIES, AND, FURTHER, IT WAS IN NO WAY RELATED TO, OR CAUSED BY, HER
UNION ACTIVITIES.
(2) RECORD FACTS SHOW THAT RESPONDENT REQUIRED THAT THE SWITCHBOARD
OPERATOR, LUCILLE DODSON, RECEIVE AND DISTRIBUTE FORMS WHILE SITTING AT
THE BOARD. CLIMER, WHO RAN THE SWITCHBOARD AS A RELIEF OPERATOR, WAS
LIKEWISE CALLED UPON TO PROCESS FORMS AND PUT THEM IN ENVELOPES FOR
MAILING. SHE CONTENDS THAT OTHERS WHO OPERATED THE SWITCHBOARD WERE NOT
OBLIGED TO MAKE THIS DISTRIBUTION OF FORMS. CLIMER INSISTS IT WAS
THRUST UPON HER AS A REPRISAL FOR CONSORTING WITH BROGAN AND AGREEING TO
TESTIFY ON BEHALF OF PEDERSON.
APART FROM THE FACT THAT ALL RELIEF OPERATORS ARE REQUIRED TO HANDLE
THE FORMS WHILE AT THE SWITCHBOARD, THERE IS NO SUPPORT FOR THIS
CONTENTION. I AM NOT PERSUADED THAT WATRY IMPOSED THIS CHORE UPON
CLIMER AS AN ADDITIONAL AND UNDUE BURDEN OVER AND ABOVE DUTIES EXPECTED
OF A SWITCHBOARD OPERATOR. FURTHER, I FIND NO BASIS FOR CONCLUDING THAT
SUCH ASSIGNMENT WAS MADE IN RETALIATION FOR CLIMER'S UNION ACTIVITIES OR
TO DISCOURAGE HER MEMBERSHIP IN THE UNION.
(3) NEITHER DO I FIND THAT WATRY'S REFUSAL TO SIT DOWN AND TALK WITH
CLIMER, OR HIS INSISTENCE THAT SHE OBTAIN A FORM WHICH WAS ALLEGEDLY
OBSOLETE, ACTIONS OF A DISCRIMINATORY NATURE. WHILE THE ATTITUDE OF THE
SUPERVISOR MAY HAVE LEFT SOMETHING TO BE DESIRED INSOFAR AS EMPLOYEE
RELATIONS WERE CONCERNED, IT DOES NOT REFLECT AN ATTEMPT TO PUNISH
CLIMER FOR HER ASSOCIATION WITH BROGAN OR THE UNION. DISAGREEMENTS
BETWEEN SUPERVISORS AND EMPLOYEES MAY OCCUR, AND THE LATTER MAY WELL
FEEL THEY ARE BEING IMPOSED UPON AT TIMES. IN THE CASE AT BAR, WATRY
WAS CURT AND BRIEF WITH THE OFFICE EMPLOYEES, AND WAS NOT DISPOSED TO
DISCUSS MATTERS WITH CLIMER OR OTHERS-- ALL OF WHICH MAY HAVE
CONSTITUTED AN ANNOYANCE TO THE EMPLOYEES. HOWEVER, THIS FALLS SHORT OF
CONSTITUTING AN UNFAIR LABOR PRACTICE UNDER THE ORDER.
ACCORDINGLY, I FIND AND CONCLUDE THAT THE DIRECTIVES ISSUED BY WATRY
TO CLIMER WERE NOT DISCRIMINATORY UNDER THE ORDER, AND THE RESPONDENT
DID NOT VIOLATE SECTION 19(A)(2) OR 19(A)(1) AS A RESULT THEREOF.
COMPLAINANT CONTENDS THAT CERTAIN STATEMENTS MADE BY SGT. WATRY,
INCLUDING HIS QUESTIONING OF EMPLOYEES, CONSTITUTED AN UNFAIR LABOR
PRACTICE AND WERE VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER.
RESPONDENT DENIES THAT SUCH REMARKS WERE MADE, AND, FURTHER CONTENDS
THAT THE NATURE OF THE EVIDENCE ADDUCED DOES NOT WARRANT AN AFFIRMATIVE
FINDING IN THIS REGARD. /7/
IN RESPECT TO RESPONDENT'S CONTENTION THAT COMPLAINANT'S FAILURE TO
PRODUCE OTHER CORROBORATIVE WITNESSES TO WATRY'S UTTERANCES-- BESIDES
CLIMER AND BROGAN-- WARRANTS AN UNFAVORABLE INFERENCE AGAINST THE
JNION'S CASE, I REJECT THIS AS UNTENABLE. NOT ONLY WERE THESE OTHER
WITNESSES NOT DEMONSTRABLY WITHIN THE CONTROL OF COMPLAINANT, BUT I DO
NOT VIEW THE "ADVERSE INFERENCE" RULE AS APPLICABLE TO THIS SITUATION.
/8/ I DO NOT AGREE WITH RESPONDENT'S ASSERTION THAT THE UNION HAS FAILED
TO SUBSTANTIATE ITS ALLEGATIONS IN THIS REGARD. THERE IS NO RULE OF LAW
REQUIRING A PARTY TO ADDUCE EVIDENCE FROM MULTIPLE WITNESSES OR SUFFER
THE DISCREDITING OF THOSE IT HAS PRODUCED. FURTHER, I CONCLUDE THE
RECORD DOES NOT REFLECT THAT CLIMER AND BROGAN SHOULD BE DISCREDITED. I
AM PERSUADED THAT, AS TO THE ESSENTIAL AND RELEVANT DETAILS, THEY
TESTIFIED IN A STRAIGHTFORWARD AND HONEST MANNER, AND I CREDIT THEM IN
ACCORDANCE WITH THE AFOREMENTIONED FINDINGS.
(1) THE PRIVATE SECTOR HAS HAD MANY OCCASIONS TO CONSIDER THE EFFECT
OF AN EMPLOYER'S QUESTIONING EMPLOYEES REGARDING THEIR UNION AFFILIATION
OR SYMPATHIES. ITS LAW IS WELL ESTABLISHED THAT UNLESS SUCH
INTERROGATION IS FOR THE LEGITIMATE PURPOSE OF ASCERTAINING EMPLOYEES'
UNCOERCED VIEWS AS TO THE UNION, OR TO RESOLVE DOUBTS OF A UNION'S
MAJORITY STATUS, IT WILL CONSTITUTE INTERFERENCE BY THE EMPLOYER WITH
THE RIGHTS OF EMPLOYEES. WILLIAM H. BLOCK CO., 150 NLRB 341. FURTHER,
INQUIRING OF EMPLOYEES WHETHER EACH IS A UNION MEMBER CONSTITUTES AN
UNFAIR LABOR PRACTICE, ESPECIALLY WHEN NO EXPLANATION WAS MADE AS TO THE
REASON FOR THE INQUIRY, AND NO ASSURANCE WAS GIVEN TO THE EMPLOYEE THAT
NO REPRISALS AGAINST HIM WOULD BE TAKEN. HOWARD JOHNSON CO., 198 NLRB
NO. 98.
THE LANGUAGE IN SECTION 19(A)(1) OF THE ORDER IS FASHIONED SIMILARLY
TO SECTION 8(A)(1) OF THE NATIONAL LABOR RELATIONS ACT. BOTH ARE
DESIGNED TO PREVENT EMPLOYERS FROM INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED THEM IN EACH
INSTANCE. ONE OF THESE RIGHTS-- THE RIGHT TO ENGAGE IN UNION
ACTIVITIES-- WOULD BE SERIOUSLY JEOPARDIZED IF EMPLOYEES ARE QUERIED
REGARDING THEIR UNIONISM. SEE COCA COLA BOTTLING CO., 188 NLRB NO. 91.
IF EMPLOYEES ARE TO FEEL FREE TO JOIN AND ASSIST LABOR ORGANIZATIONS
THEN A FORTIORARI, THEY MUST NOT-- EXCEPT IN UNUSUAL CIRCUMSTANCES-- BE
INTERROGATED AS TO WHETHER THEY ARE UNION MEMBERS. SUCH INTERROGATION
MUST NECESSARILY INTERFERE WITH RIGHTS GUARANTEED UNDER THE ORDER.
IN THE CASE AT BAR, WATRY'S QUESTIONING OF THE OFFICE GIRLS AS TO
WHICH ONES WERE UNION MEMBERS IS AN INFRINGEMENT OF SUCH RIGHTS. IT WAS
CONDUCTED FOR NO LEGITIMATE PURPOSE (I.E., RESOLVING DOUBTS AS TO A
UNION'S MAJORITY), AND NO EXPLANATION ACCOMPANIED THE INTERROGATION.
FURTHER, AT THE SAME TIME OF ITS OCCURRENCE, WATRY ADMONISHED THE
EMPLOYEES THAT ANYTHING DISCUSSED IN THE OFFICE WAS NOT TO BE RELATED TO
THE UNION PRESIDENT. IN THIS CONTEXT, AND IN LIGHT OF THE OTHER
ADMONITIONS GIVEN EMPLOYEES BY WATRY, THIS "POLLING" OF EMPLOYEES MUST
HAVE A COERCIVE EFFECT UPON THE WORKERS. ACCORDINGLY, I FIND THAT THIS
INTERROGATION BY RESPONDENT'S REPRESENTATIVE INTERFERED WITH, RESTRAINED
AND COERCED THE EMPLOYEES AND WAS A VIOLATION OF SECTION 19(A)(1) OF THE
ORDER.
(2) IT IS ALSO ESSENTIAL THAT AN EMPLOYER REFRAIN FROM DISPARAGEMENT
OF A UNION WHICH IS LIKELY TO HAVE AN EFFECT UPON UNIT EMPLOYEES. THUS,
IN U.S. ARMY HEADQUARTERS, FORT JACKSON LAUNDRY, A/SLMR NO. 242, THE
LAUNDRY MANAGER'S ADMONISHMENT TO A UNION STEWARD, IN THE PRESENCE OF
OTHER EMPLOYEES, TO SHUT HER MOUTH WAS HELD TO BE VIOLATIVE OF SECTION
19(A)(1) OF THE ORDER. SUCH A REMARK WAS DEEMED TO BE A DISPARAGEMENT
OF THE UNION WHICH WOULD TEND TO RESTRAIN EMPLOYEES, SUCH AS THE
STEWARD, FROM ACTING AS THE UNION REPRESENTATIVE. FURTHER, EMPLOYEES
WOULD BE DISCOURAGED FROM EXERCISING THEIR RIGHTS UNDER SECTION 1(A) OF
THE ORDER SINCE THEY WERE AWARE OF MANAGEMENT'S TREATING THEIR EXCLUSIVE
REPRESENTATIVE WITH DISDAIN.
IN THE INSTANT CASE WATRY ADMONISHED CLIMER TO KEEP HER MOUTH SHUT
AND NOT SAY ANYTHING TO THE UNION PRESIDENT WHO WOULD BE COMING AROUND
FOR INFORMATION. RESPONDENT'S REPRESENTATIVE TOLD CAROL CUNNINGHAM TO
ABSTAIN FROM TALKING TO BROGAN SHOULD SHE ATTEMPT TO OBTAIN INFORMATION
FOR THE PEDERSON HEARING. WHILE THIS STATEMENT TO CLIMER WAS NOT MADE
IN THE PRESENCE OF OTHER EMPLOYEES, AS IN THE FT. JACKSON CASE, SUPRA,
IT REFLECTED NONETHELESS A DISPARAGEMENT OF THE UNION HEREIN. MOREOVER,
IT MUST TEND TO AFFECT OTHER UNIT EMPLOYEES SINCE THEY WOULD REASONABLY
BE EXPECTED TO LEARN OF MANAGEMENT'S VIEWS. IT IS ALSO NOTED THAT THE
REMARK BY WATRY TO SECRETE INFORMATION FROM THE UNION OFFICIAL WAS NOT
AN ISOLATED ONE. IN ADDITION TO BEING UTTERED TO CLIMER AND BROGAN, IT
WAS MADE TO THE OFFICE WORKERS AT THE TIME WATRY QUESTIONED THEM AS TO
WHICH ONES WERE UNION MEMBERS. SUCH REMARKS BY RESPONDENT'S SUPERVISOR
CLEARLY RESTRAIN EMPLOYEES UNDER THE ORDER, AND THEY ALSO REFLECT A
DISDAIN FOR THE EXCLUSIVE REPRESENTATIVE OF THESE EMPLOYEES. THEY ARE A
DIRECT ATTEMPT, ALBEIT INCHOATE, TO THWART THE WORKERS FROM EXERCISING
THEIR ACCORDED RIGHT TO ASSIST THEIR REPRESENTATIVE.
AS SUCH, I FIND THE AFORESAID REMARKS BY WATRY TO CLIMER, CUNNINGHAM,
AND THE OFFICE WORKERS TO CONSTITUTE INTERFERENCE, RESTRAINT AND
COERCION UNDER 19(A)(1) OF THE ORDER.
IN ASSERTING A VIOLATION OF SECTION 19(A)(6) OF THE ORDER,
COMPLAINANT MAINTAINS THAT RESPONDENT ATTEMPTED TO RESOLVE CLIMER'S
GRIEVANCES WITHOUT UNION INTERVENTION. FURTHER, IT CONTENDS THAT PREM
AND EVANS, MANAGEMENT'S HIGHER ECHELON REPRESENTATIVES, ATTEMPTED TO
AVOID MEETING WITH BROGAN IN RESPECT TO CLIMER'S DIFFICULTIES. THE
UNION ALSO CLAIMS THAT WHEN PREM, ON OCTOBER 3, 1972, REFERRED TO THE
SUPERVISORS' HANDBOOK (PAGE 133), AS SUPPORTING HIS BELIEF THAT HE DID
NOT HAVE TO MEET WITH BROGAN, SUCH USE OF THE HANDBOOK WAS, IN EFFECT, A
DENIAL OF REPRESENTATION AND RECOGNITION OF THE EXCLUSIVE BARGAINING
REPRESENTATIVE.
RESPONDENT URGES THAT IT WAS NOT BOUND TO MEET WITH BROGAN, THE UNION
PRESIDENT. IT ARGUES THAT CLIMER'S DISPUTE WAS A COMPLAINT, AND UNDER
THE CONTRACT MANAGEMENT WAS REQUIRED TO CONFER ONLY WITH THE STEWARD IF
AN EMPLOYEE WANTED UNION REPRESENTATION. RESPONDENT FURTHER CONTENDS
THAT SHOULD THE DISPUTE BE LABELED A GRIEVANCE, CLIMER WAS REQUIRED BY
THE CONTRACT AND AIR FORCE REGULATION TO DESIGNATE ANY REPRESENTATIVE,
OTHER THAN THE STEWARD, IN WRITING. HAVING FAILED TO DO SO, CLIMER
COULD NOT OBLIGATE MANAGEMENT TO MEET WITH BROGAN AS HER REPRESENTATIVE.
IT IS ALSO CONTENDED THAT THE CONTRACTUAL PROVISIONS GOVERN IN THIS
REGARD, AND ANY RIGHTS TO REPRESENTATION BESTOWED BY THE ORDER HAVE BEEN
WAIVED BY THE CONTRACT.
(1) IT IS RECOGNIZED THAT SECTION 10(E) OF THE ORDER CONFERS ON AN
EXCLUSIVE BARGAINING REPRESENTATIVE THE RIGHT TO BE REPRESENTED AT
FORMAL DISCUSSIONS. FURTHER, IT BESTOWS A CONCOMITANT RIGHT UPON ALL
EMPLOYEES IN A UNIT TO BE SO REPRESENTED AT THESE DISCUSSIONS.
THEREFORE, A REFUSAL BY AN AGENCY TO ALLOW THE UNION TO BE REPRESENTED
AT SUCH TIMES WOULD BE A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
CF. FT. JACKSON LAUNDRY, SUPRA. FURTHER, DENYING TO UNIT EMPLOYEES THE
RIGHT TO BE REPRESENTED BY THEIR EXCLUSIVE REPRESENTATIVE WOULD BE
VIOLATIVE OF SECTION 19(A)(1). CF. U.S. DEPARTMENT OF THE ARMY,
TRANSPORTATION MOTOR POOL, FT. WAINWRIGHT, ALASKA, A/SLMR NO. 278.
HOWEVER, I AM PERSUADED THAT THE FACTS HEREIN ARE QUITE DIFFERENT FROM
THESE IN THE CITED CASES AND REQUIRE AN OPPOSITE DETERMINATION.
NOTE IS TAKEN THAT ON OCTOBER 3, 1972, DEPUTY CHIEF PREM MET WITH
CLIMER AND HER REPRESENTATIVE, BROGAN, IN THE BASE PROCUREMENT OFFICE.
EACH ACT OF WATRY'S ALLEGED HARASSMENT TOWARD CLIMER WAS DISCUSSED IN
DETAIL, AS WELL AS THE SUPERVISOR'S ANTI-UNION COMMENTS. BROGAN
PARTICIPATED IN THESE DISCUSSIONS ON BEHALF OF THE UNION AND AS CLIMER'S
REPRESENTATIVE. PREM AGREED AS TO THE FUTILE USAGE OF AN OBSOLETE FORM,
BUT UPHELD WATRY REGARDING HIS OTHER DIRECTIVES.
WHEN CLIMER BECAME INVOLVED IN A SUBSEQUENT ALTERCATION WITH WATRY ON
OCTOBER 12, 1972, AND BROUGHT THE MATTER TO THE ATTENTION OF COLONEL
EVANS, THE LATTER INVITED HER TO A CONFERENCE TO DISCUSS THE ALLEGED
ACTS OF HARASSMENT. IN DISCUSSING THE MEETING TO BE HELD WHEN EVANS
RETURNED FROM LUNCH, HE MENTIONED THAT THE UNION STEWARD AND SOMEONE
FROM CPO MIGHT BE PRESENT. CLIMER ASKED ABOUT HAVING BROGAN THERE TO
REPRESENT HER AND EVANS AGREED. THE CONFERENCE NEVER MATERIALIZED SINCE
THE UNION PREFERRED TO PURSUE THE MATTER VIA AN UNFAIR LABOR PRACTICE
CHARGE.
THUS, IN THE CASE AT BAR, RESPONDENT OVERCAME ITS INITIAL RELUCTANCE
TO MEET WITH THE CHOSEN UNION REPRESENTATIVE. ALTHOUGH TAKING THE
POSITION IT WAS NOT OBLIGED TO DO SO, MANAGEMENT DID, IN FACT, CONFER
WITH BROGAN IN RESPECT TO CLIMER'S PROBLEMS. MOREOVER, IT STOOD READY,
AFTER THE FIRST MEETING WITH HER, TO CONFER AGAIN IN THE PRESENCE OF
BOTH THE UNION STEWARD AND THE UNION PRESIDENT. THE RECORD FACTS DO NOT
SUPPORT A FINDING THAT RESPONDENT REFUSED TO PERMIT CLIMER TO SELECT THE
UNION OFFICIAL AS HER REPRESENTATIVE. MOREOVER, THEY DO NOT WARRANT THE
CONCLUSION THAT THE UNION WAS PREVENTED FROM REPRESENTING A UNIT
EMPLOYEE IN ITS DEALING WITH MANAGEMENT. ACCORDINGLY, I FIND AND
CONCLUDE THERE WAS NO ACTUAL DENIAL OF UNION REPRESENTATION HEREIN, NOR
REFUSAL OF RECOGNITION TO COMPLAINANT, IN VIOLATION OF SECTION 19(A)(6)
OF THE ORDER. /9/
(2) AN ISSUE WHICH DOES NOT LEND ITSELF TO A READY AND SIMPLE
SOLUTION IS WHETHER MANAGEMENT'S USE, ON OCTOBER 3, 1972, OF ITS
SUPERVISORS' LABOR-RELATIONS HANDBOOK WAS VIOLATIVE OF THE ORDER.
RESPONDENT MAINTAINS THAT PREM'S REFERRAL TO PART III, SECTION B (PAGE
133), WHEN SPEAKING TO CLIMER AND BROGAN, WAS CONSISTENT WITH SECTION
VII OF THE CONTRACT. IT CONSIDERS THAT THE INSTRUCTIONS TO SUPERVISORS
WERE PERMISSIBLE UNDER THE AGREEMENT, AND THEREFORE NO VIOLATION OF THE
ORDER CAN EXIST.
THE HANDBOOK IS DESIGNED TO PROVIDE INFORMATION TO THE SUPERVISORS
REGARDING THE CONTRACT, AND TO FURNISH ADVICE TO THEM AS AN AID IN
ADMINISTERING PROVISIONS OF THE ARTICLES CONTAINED THEREIN. THE
PERTINENT LANGUAGE REFERRED TO BY PREM INSTRUCTS THE SUPERVISORS THAT
THEY ARE ENTITLED TO DEAL WITH AN EMPLOYEE, WHO HAS A COMPLAINT, ON A
"ONE-FOR-ONE BASIS." FURTHER, IT ADVISES THEM THAT IF THE UNION STEWARD
IS INTERCEDING WHERE THE "ONE-FOR-ONE" PRINCIPLE MIGHT RESULT IN A
SIMPLE SOLUTION, THE SUPERVISORS SHOULD STAND ON THE RIGHT ACCORDED THEM
IN THE CONTRACT AND INSIST UPON SPEAKING TO THE EMPLOYEE ALONE-- WITHOUT
THE INTERVENTION OR PRESENCE OF THE STEWARD.
WHILE THE ABOVE INSTRUCTIONS, STANDING ALONE, MAY NOT RUN AFOUL OF
THE ORDER, I CONCLUDE THAT WHEN THEY ARE COMMUNICATED BY MANAGEMENT TO
EMPLOYEES-- AT A TIME WHEN THE EMPLOYER IS RESISTING A REQUEST BY THE
EMPLOYEE TO HAVE HER UNION REPRESENTATIVE PRESENT DURING A DISCUSSION OF
HER COMPLAINTS-- SUCH CONDUCT IS AN IMPROPER INFRINGEMENT UPON
EMPLOYEES' RIGHTS UNDER THE ORDER. AT THE OUTSET, I DO NOT READ SECTION
VII OF THE AGREEMENT AS PERMITTING THE SUPERVISOR TO INSIST UPON
DISCUSSING A COMPLAINT WITH THE EMPLOYEE WITHOUT A UNION STEWARD BEING
PRESENT WHEN THE EMPLOYEE DESIRES THE STEWARD'S PRESENCE. PARAGRAPH
4(C) SPECIFICALLY PROVIDES THAT THE EMPLOYEE MAY REQUEST A STEWARD TO
REPRESENT HIM IN PRESENTING A COMPLAINT TO HIS SUPERVISOR. RESPONDENT
WOULD INTERPRET THE WORDING DEFINING A COMPLAINT, UNDER PARAGRAPH 4(A),
AS GRANTING A SUPERVISOR THE RIGHT TO DEAL WITH AN EMPLOYEE ALONE. IT
ARGUES THAT SINCE A COMPLAINT IS SOMETHING AN EMPLOYEE HAS
UNSUCCESSFULLY ATTEMPTED TO RESOLVE WITH THE SUPERVISOR, SUCH A RIGHT
NECESSARILY FLOWS THEREFROM. I DO NOT DRAW SUCH A NARROW INFERENCE FROM
THAT DEFINITION AND WOULD REJECT THE RESPONDENT'S CONTENTION THAT A
SUPERVISOR MAY DEPRIVE AN EMPLOYEE OF HIS RIGHT TO REPRESENTATION BY THE
STEWARD DURING A DISCUSSION REGARDING THE EMPLOYEE'S COMPLAINT. WHILE
THE PARTIES MAY, BY CONTRACT, LIMIT UNION REPRESENTATION TO THE UNION
STEWARD AT THE INFORMAL COMPLAINT STAGE, THE EMPLOYEE IS NOT TO BE
DEPRIVED OF ANY REPRESENTATION AT ALL. THIS IS NEITHER THE EXPRESS NOR
IMPLIED INTENT OF THE CONTRACT.
BY PREM'S INSISTENCE TO EMPLOYEES CLIMER AND BROGAN THAT THE WORKERS
IN THE UNIT COULD BE SO DEPRIVED OF THEIR UNION REPRESENTATION, AS
SUPERVISORS WERE SO ADVISED IN THE HANDBOOK, RESPONDENT HAS INTERFERED
WITH RIGHTS GUARANTEED EMPLOYEES UNDER THE ORDER. MANAGEMENT HAS, IN
EFFECT, UNDERTAKEN TO ADVISE ITS SUPERVISORY HIERARCHY TO DISREGARD UNIT
EMPLOYEE'S REPRESENTATION RIGHTS. WHEN THIS IS PUBLISHED OR
COMMUNICATED TO EMPLOYEES, IT WOULD TEND TO RESTRAIN THE EMPLOYEES, AS
BROGAN, FROM ACTING AS A UNION REPRESENTATIVE. MOREOVER, SUCH CONDUCT
IS IMPLIEDLY DISDAINFUL OF THE EXCLUSIVE REPRESENTATIVE, AND WOULD TEND
TO DISCOURAGE EMPLOYEES FROM EXERCISING THEIR RIGHTS UNDER THE ORDER. I
FIND AND CONCLUDE THE USE BY PREM OF THE SUPERVISORS' HANDBOOK, WHEREBY
HE PUBLISHED OR COMMUNICATED TO EMPLOYEES CLIMER AND BROGAN THAT PORTION
PERMITTING A SUPERVISOR TO EXCLUDE A UNION STEWARD FROM REPRESENTING AN
EMPLOYEE DURING A DISCUSSION OF THE LATTER'S COMPLAINT, CONSTITUTES
INTERFERENCE, RESTRAINT OR COERCION UNDER 19(A)(1) OF THE ORDER.
HAVING FOUND THAT RESPONDENT HAS 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 DESIGNED TO EFFECTUATE THE
PURPOSE OF EXECUTIVE ORDER 11491. IN RESPECT TO CONDUCT ALLEGING (A)
HARASSMENT BY RESPONDENT OF EMPLOYEE CLIMER AS DISCRIMINATORY UNDER
SECTIONS 19(A)(1) AND (2) OF THE ORDER, (B) MAINTENANCE BY RESPONDENT OF
AN "OPEN DOOR" POLICY IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER, AND
(C) DENIAL BY RESPONDENT OF REPRESENTATION TO EMPLOYEES, OR RECOGNITION
OF COMPLAINANT, IN VIOLATION OF SECTION 19(A)(6) OF THE ORDER, IT IS
RECOMMENDED THAT THE COMPLAINT BE DISMISSED.
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 VANDENBERG AIR FORCE BASE,
4392 AEROSPACE SUPPORT GROUP, VANDENBERG AFB, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING ITS EMPLOYEES AS TO THEIR MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, LOCAL 1001, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, VANDENBERG, AFB, CALIFORNIA, OR ANY OTHER LABOR ORGANIZATION.
(B) INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES BY
INSTRUCTING OR ADMONISHING THEM TO REFRAIN FROM CONFERRING WITH, OR
GIVING ANY INFORMATION TO, THE PRESIDENT OF LOCAL 1001, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, VANDENBERG AFB, CALIFORNIA, OR ANY
OTHER UNION REPRESENTATIVE, CONCERNING GRIEVANCES, PERSONNEL POLICIES
AND PRACTICES, OR OTHER MATTERS AFFECTING GENERAL WORKING CONDITIONS.
(C) USING THE SUPERVISORS' LABOR-RELATIONS HANDBOOK TO INFORM AND
ADVISE EMPLOYEES THAT A SUPERVISOR MAY INSIST UPON EXCLUDING THE UNION
STEWARD, AS THE EMPLOYEE'S REPRESENTATIVE, DURING A DISCUSSION BETWEEN A
SUPERVISOR AND AN EMPLOYEE WHO HAS PRESENTED A COMPLAINT CONCERNING
MATTERS AFFECTING GENERAL WORKING CONDITIONS.
(D) 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) POST AT ITS FACILITY AT VANDENBERG AIR FORCE BASE, 4392 AEROSPACE
SUPPORT GROUP, VANDENBERG AFB, 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 COMMANDER, VANDENBERG AIR FORCE BASE, CALIFORNIA, 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 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: JANUARY 14, 1974
WASHINGTON, D.C.
WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO THEIR MEMBERSHIP IN, OR
ACTIVITIES ON BEHALF OF, LOCAL 1001, NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, VANDENBERG AIR FORCE BASE, CALIFORNIA, OR ANY OTHER LABOR
ORGANIZATION.
WE WILL NOT INSTRUCT OR ADMONISH OUR EMPLOYEES TO REFRAIN FROM
CONFERRING WITH, OR GIVING ANY INFORMATION TO, THE PRESIDENT OF LOCAL
1001, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, VANDENBERG AIR FORCE
BASE, CALIFORNIA, OR ANY OTHER UNION REPRESENTATIVE, CONCERNING
GRIEVANCES, PERSONNEL POLICIES AND PRACTICES, OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS.
WE WILL NOT USE THE SUPERVISORS' LABOR-RELATIONS HANDBOOK TO INFORM
AND ADVISE EMPLOYEES THAT A SUPERVISOR MAY INSIST UPON EXCLUDING A UNION
STEWARD, AS THE EMPLOYEE'S REPRESENTATIVE, DURING A DISCUSSION BETWEEN A
SUPERVISOR AND AN EMPLOYEE WHO HAS PRESENTED A COMPLAINT CONCERNING
MATTERS AFFECTING GENERAL 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
SECTION 1(A) OF THE EXECUTIVE ORDER 11491, AS AMENDED.
DATED.....BY 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES, U.S. DEPARTMENT OF
LABOR, WHOSE ADDRESS IS ROOM 9061, FEDERAL OFFICE BUILDING, 450 GOLDEN
GATE AVENUE, SAN FRANCISCO, CALIFORNIA 94102.
/1/ COMPLAINANT'S EXHIBIT 1.
/2/ ARTICLE VIII OF THE CONTRACT SETS FORTH A NEGOTIATED GRIEVANCE
PROCEDURE WHICH MAY BE PURSUED IF AN EMPLOYEE'S COMPLAINT IS NOT SETTLED
TO HIS SATISFACTION BY A FIRST LEVEL SUPERVISOR UNDER ARTICLE VII. SUCH
EMPLOYEE MUST ELECT WHETHER TO FOLLOW THE REGULAR AIR FORCE GRIEVANCE
PROCEDURE OR THE NEGOTIATED GRIEVANCE PROCEDURE UNDER THE CONTRACT.
GRIEVANCES UNDER THIS NEGOTIATED PROCEDURE MUST BE IN WRITING AND
PRESENTED TO THE SECOND LEVEL SUPERVISOR. IN PRESENTING SUCH GRIEVANCES
EMPLOYEES HAVE THE RIGHT TO BE REPRESENTED BY REPRESENTATIVES OF THEIR
OWN CHOOSING. A UNION OR DESIGNATED REPRESENTATIVE MAY PRESENT A
GRIEVANCE ON BEHALF OF AN EMPLOYEE WHEN MANAGEMENT HAS BEEN NOTIFIED IN
WRITING BY THE EMPLOYEE OF THE DESIGNATION.
/3/ COMPLAINANT'S EXHIBIT 1.
/4/ RESPONDENT'S EXHIBIT 5, PARAGRAPHS 2(H), 5, 24, AND 25.
/5/ RESPONDENT'S EXHIBIT 1.
/6/ THE TRANSCRIPT, AT SEVERAL PLACES, RECITES "CPO 2" INSTEAD OF
"CPO ALSO", BASED ON THE TESTIMONY OF EVANS AND THE RECORD AS A WHOLE,
THE TRANSCRIPT IS CORRECTED TO CHANGE "2" TO "ALSO" WHEREVER "CPO 2"
APPEARS.
/7/ RESPONDENT OFFERED IN EVIDENCE, AS EXHIBITS 2 AND 3, SIGNED
STATEMENTS BY WATRY IN AN EFFORT TO REFUTE THE ALLEGATIONS HEREIN.
NOTWITHSTANDING RESPONDENT'S ARGUMENT THAT THE RULES OF EVIDENCE ARE NOT
CONTROLLING, THESE EXHIBITS WERE REJECTED. APART FROM THE FACT THAT
THESE COMMENTS WERE MERELY A DENIAL OF ANY ANTI-UNION REMARKS, THEY WERE
RANK HEARSAY AND "THE ENDS OF JUSTICE" WOULD NOT BE SERVED BY ACCORDING
ANY WEIGHT TO THEM. MOREOVER, RESPONDENT MADE NO REQUEST TO TAKE
WATRY'S DEPOSITION WHICH WOULD HAVE AFFORDED COMPLAINANT AN OPPORTUNITY
TO ALSO EXAMINE HIM.
/8/ THE RULE COULD AS EASILY BE DIRECTED AGAINST THE RESPONDENT.
DURING THE HEARING IT LEARNED THE NAMES OF OTHER WITNESSES TO SOME OF
THIS CONDUCT, AND YET IT MADE NO ATTEMPT TO PRODUCE THEM TO REBUT THE
TESTIMONY PREVIOUSLY ADDUCED.
/9/ FURTHER, I DO NOT FIND THE "OPEN DOOR" POLICY ENUMERATED BY EVANS
TO CONSTITUTE A VIOLATION OF EITHER 19(A)(1) OR (6) OF THE ORDER.
EMPLOYEES WERE ADVISED THAT THE UNION STEWARD COULD COME IN WITH THEM IF
THEY EVER WANTED TO DISCUSS A COMPLAINT, AND THERE IS NO SHOWING THE
POLICY WAS ENFORCED IN A DISCRIMINATORY MANNER OR TO DENY REPRESENTATION
TO EMPLOYEES.
4 A/SLMR 382; P. 269; CASE NO. 20-4264(RO); APRIL 30, 1974.
PHILADELPHIA NAVAL SHIPYARD
A/SLMR NO. 382
THIS CASE INVOLVED A SEVERANCE REQUEST BY THE
PLANNERS-ESTIMATORS-PROGRESSMEN ASSOCIATION, LOCAL 2(PEP), FOR A UNIT OF
TEN PLANNERS AND ESTIMATORS AND ONE MAINTENANCE SCHEDULER IN THE
ACTIVITY'S PUBLIC WORKS DEPARTMENT. THE PEP CONTENDED THAT THESE
EMPLOYEES HAVE NOT BEEN ADEQUATELY REPRESENTED IN THEIR PRESENT UNIT,
AND THAT, THEREFORE, UNUSUAL CIRCUMSTANCES EXISTED WHICH WOULD WARRANT A
CARVE-OUT. THE ACTIVITY AND THE INCUMBENT EXCLUSIVE REPRESENTATIVE,
PHILADELPHIA METAL TRADES COUNCIL, AFL-CIO, (MTC), CONTESTED THE
APPROPRIATENESS OF THE UNIT SOUGHT BY THE PEP, CONTENDING THAT THESE
EMPLOYEES SHARE A COMMUNITY OF INTEREST WITH THE OTHER EMPLOYEES IN THE
EXISTING WAGE GRADE UNIT AT THE ACTIVITY WHICH CONSISTED OF
APPROXIMATELY 5,178 EMPLOYEES.
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR UNIT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN REACHING THIS
DETERMINATION, HE NOTED THAT THE EMPLOYEES IN THE CLAIMED UNIT HAVE BEEN
REPRESENTED BY THE INCUMBENT EXCLUSIVE REPRESENTATIVE, MTC, FOR OVER TEN
YEARS AND THAT THERE WAS NO EVIDENCE THAT, DURING THAT PERIOD, THE
EMPLOYEES SOUGHT HAD NOT BEEN EFFECTIVELY AND FAIRLY REPRESENTED. HE
NOTED ALSO THE ABSENCE OF EVIDENCE TO SHOW ANY KIND OF CHANGED
CIRCUMSTANCE WHICH MIGHT HAVE DESTROYED THE COMMUNITY OF INTEREST
BETWEEN THE EMPLOYEES SOUGHT AND THE REMAINDER OF THE EMPLOYEES IN THE
MTC UNIT. IN THIS REGARD, HE NOTED THE CLAIMED EMPLOYEES ARE PART OF AN
INTEGRATED WORK PROCESS, HAVE SUBSTANTIAL WORK CONTACTS WITH CERTAIN
OTHER EMPLOYEES IN THE MTC UNIT, ARE UNDER THE SAME SUPERVISION AS
CERTAIN EMPLOYEES IN THE MTC'S UNIT AND HAVE NO SUBSTANTIAL WORK
CONTACTS WITH EMPLOYEES IN THE EXISTING PEP UNIT. ACCORDINGLY, THE
ASSISTANT SECRETARY ORDERED THAT THE PETITION BE DISMISSED.
PHILADELPHIA NAVAL SHIPYARD
AND
PLANNERS-ESTIMATORS-PROGRESSMEN ASSOCIATION,
LOCAL 2
AND
PHILADELPHIA METAL TRADES COUNCIL, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DARWIN L.
STEELMAN. 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 AND THE INTERVENOR, PHILADELPHIA METAL TRADES COUNCIL, AFL-CIO,
HEREIN CALLED MTC, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, PLANNERS-ESTIMATORS-PROGRESSMEN ASSOCIATION,
LOCAL 2, HEREIN CALLED PEP, SEEKS A UNIT COMPOSED OF ALL NONSUPERVISORY
WAGE GRADE AND GENERAL SCHEDULE PLANNERS AND ESTIMATORS AND MAINTENANCE
SCHEDULERS IN THE ACTIVITY'S ENGINEERING AND MAINTENANCE CONTROL
DIVISION OF THE PUBLIC WORKS DEPARTMENT, EXCLUDING SUPERVISORS,
MANAGEMENT OFFICIALS, CLERICAL EMPLOYEES, PROFESSIONAL EMPLOYEES, GUARDS
AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY. /1/ THE RECORD REVEALS THAT THE 11 EMPLOYEES SOUGHT
BY THE INSTANT PETITION ARE PART OF AN EXISTING WAGE GRADE UNIT
REPRESENTED BY THE MTC WHICH IS COMPOSED OF APPROXIMATELY 5,178
EMPLOYEES. /2/ THERE IS NO CURRENT NEGOTIATED AGREEMENT COVERING THE
EMPLOYEES IN THE UNIT REPRESENTED BY THE MTC.
THE PEP CONTENDS THAT THE UNIT SOUGHT IS APPROPRIATE IN THAT THE MTC
HAS FAILED TO REPRESENT ADEQUATELY THE EMPLOYEES IN THE CLAIMED UNIT AND
THAT, THEREFORE, THERE ARE UNUSUAL CIRCUMSTANCES WHICH WOULD WARRANT A
CARVE-OUT FROM THE EXISTING UNIT REPRESENTED BY THE MTC. ON THE OTHER
HAND THE ACTIVITY AND THE MTC TAKE THE POSITION THAT SEVERANCE OF THE
CLAIMED EMPLOYEES FROM THE EXISTING UNIT IS NOT JUSTIFIED BECAUSE THESE
EMPLOYEES SHARE A COMMUNITY OF INTEREST WITH THE OTHER UNIT EMPLOYEES
AND THE INTRODUCTION OF AN ADDITIONAL BARGAINING UNIT WILL PROMOTE
NEITHER EFFECTIVE DEALINGS NOR EFFICIENCY OF AGENCY OPERATIONS.
THE ACTIVITY IS ONE OF TEN NAVAL SHIPYARDS UNDER THE JURISDICTION OF
THE NAVAL SHIPS SYSTEM COMMAND. ITS MISSION IS TO PERFORM AUTHORIZED
WORK IN CONNECTION WITH THE CONSTRUCTION, CONVERSION, OVERHAUL, REPAIR
AND OUTFITTING OF SURFACE VESSELS AND SUBMARINES. ORGANIZATIONALLY, THE
ACTIVITY IS COMPOSED OF 13 DEPARTMENTS AND OFFICES, MOST OF WHICH ARE
SUBDIVIDED INTO DIVISIONS AND BRANCHES. THE PUBLIC WORKS DEPARTMENT,
WHERE THE EMPLOYEES IN THE CLAIMED UNIT ARE LOCATED, IS RESPONSIBLE FOR
THE MAINTENANCE AND REPAIR OF THE PHYSICAL PLANT OF THE SHIPYARD.
THE RECORD REVEALS THAT THE 11 CLAIMED EMPLOYEES WORK IN TWO OF THE
THREE BRANCHES OF THE PUBLIC WORKS DEPARTMENT'S ENGINEERING AND
MAINTENANCE CONTROL DIVISION. THUS, THE UNIT SOUGHT ENCOMPASSES EIGHT
PLANNERS AND ESTIMATORS AND ONE MAINTENANCE SCHEDULER IN THE PLANNING
AND ESTIMATING BRANCH AND TWO PLANNERS AND ESTIMATORS IN THE FACILITIES
INSPECTION BRANCH. THE PLANNERS AND ESTIMATORS IN THE PLANNING AND
ESTIMATING BRANCH ARE RESPONSIBLE FOR PREPARING COST ESTIMATES AND JOB
ORDER SPECIFICATIONS FOR PROJECTS TO BE PERFORMED IN THE SHOPS DIVISION
OF THE PUBLIC WORKS DEPARTMENT. IN THE PERFORMANCE OF THEIR DUTIES THE
PLANNERS AND ESTIMATORS SPEND APPROXIMATELY 30 PERCENT OF THEIR WORKING
TIME AT JOB SITES MAKING ESTIMATES AND CONSULTING WITH FOREMEN, SHOP
PLANNERS AND, OCCASIONALLY, JOURNEYMEN. THE PLANNERS AND ESTIMATORS IN
THE FACILITIES INSPECTION BRANCH PERFORM SIMILAR FUNCTION TO THAT
PERFORMED BY THOSE IN THE PLANNING AND ESTIMATING BRANCH. WHILE THE
FORMER DO NOT PREPARE JOB ORDER SPECIFICATIONS, THEY ARE INVOLVED IN
PREPARING FEASIBILITY STUDIES, I.E., ESTIMATING THE COSTS OF CERTAIN
ALTERNATIVES SUCH AS REPAIRING OR REPLACING A FACILITY OR PIECE OF
EQUIPMENT. THE EMPLOYEES IN THE PLANNING AND ESTIMATING BRANCH HAVE
OFFICES IN A BUILDING AT THE SHIPYARD DESIGNATED AS BUILDING #1, WHILE
THE PLANNERS AND ESTIMATORS IN THE FACILITIES INSPECTION BRANCH WORK IN
BUILDING #2. BOTH BUILDINGS ALSO CONTAIN EMPLOYEES OTHER THAN THOSE IN
THE CLAIMED UNIT.
THE EVIDENCE ESTABLISHES THAT THE WORK PERFORMED BY THE EMPLOYEES IN
THE UNIT SOUGHT IS PART OF AN INTEGRATED WORK PROCESS WHICH NECESSITATES
SUBSTANTIAL WORK CONTACTS WITH CERTAIN OTHER EMPLOYEES IN THE MTC
BARGAINING UNIT. KNOWLEDGE OF A TRADE IS A PREREQUISITE TO BECOMING A
PLANNER AND ESTIMATOR, AND THE RECORD REVEALS THAT THE EMPLOYEES IN THIS
CATEGORY PROGRESSED TO THEIR PRESENT POSITIONS EITHER DIRECTLY OR
INDIRECTLY FROM JOURNEYMAN POSITIONS AT THE ACTIVITY. EMPLOYEES IN THE
CLAIMED UNIT AND OTHER EMPLOYEES IN THE PUBLIC WORKS DEPARTMENT SHARE
COMMON FACILITIES AND FRINGE BENEFITS. FURTHER, THE TWO PLANNERS AND
ESTIMATORS IN THE FACILITIES INSPECTION BRANCH HAVE THE SAME FIRST LEVEL
SUPERVISION AS CERTAIN OTHER EMPLOYEES IN THAT BRANCH, AND ALL EMPLOYEES
IN THE CLAIMED UNIT SHARE COMMON DIVISION LEVEL SUPERVISION WITH OTHER
EMPLOYEES IN THE EXISTING MTC UNIT.
THE PEP CURRENTLY REPRESENTS A UNIT OF NONSUPERVISORY PRODUCTION
FACILITATING EMPLOYEES IN THE PLANNING DEPARTMENT AND PRODUCTION
DEPARTMENT. WHILE INCLUDED IN THIS UNIT ARE A NUMBER OF PLANNERS AND
ESTIMATORS WHO PERFORM WORK THAT IS SIMILAR IN CERTAIN RESPECTS TO THE
DUTIES PERFORMED BY THE EMPLOYEES OF THE CLAIMED UNIT, THERE IS NO
EVIDENCE OF ANY SUBSTANTIAL WORK CONTACTS BETWEEN THESE PLANNERS AND
ESTIMATORS AND THE EMPLOYEES IN THE PETITIONED FOR UNIT.
THE PEP TAKES THE POSITION THAT THE MTC HAS FAILED TO REPRESENT
ADEQUATELY THE EMPLOYEES IN THE CLAIMED UNIT. SPECIFICALLY, IT ASSERTS
THAT THE MTC FAILED TO INTERVENE WHEN THE PLANNERS AND ESTIMATORS HAD
THEIR PARKING PRIVILEGES DOWNGRADED AND WHEN THEIR POSITIONS WERE PLACED
IN A "SET ASIDE" CATEGORY PENDING A SURVEY BY THE CIVIL SERVICE
COMMISSION TO DETERMINE WHAT CATEGORY THEIR POSITIONS WOULD BE PLACED IN
UNDER THE COORDINATED FEDERAL WAGE SYSTEM.
WITH RESPECT TO THE MTC'S ALLEGED FAILURE TO INTERVENE WHEN THE
PLANNERS AND ESTIMATORS WERE ADVERSELY AFFECTED BY A CHANGE IN THE
SHIPYARD'S PARKING REGULATIONS, THE RECORD REVEALS THAT IN 1967 THE
ACTIVITY REVISED ITS PARKING SPACE ASSIGNMENT PRIORITIES WHICH RESULTED
IN PLANNERS AND ESTIMATORS RECEIVING LESS DESIRABLE PARKING SPACES THAN
THEY HAD PREVIOUSLY. HOWEVER, NO EVIDENCE WAS PRESENTED TO SHOW THAT
THE MTC FAILED OR REFUSED TO REPRESENT THE PLANNERS AND ESTIMATORS IN
THIS MATTER UPON THE LATTERS' REQUEST. AS TO THE PEP'S CONTENTION THAT
THE MTC FAILED TO INTERVENE WHEN THE PLANNER AND ESTIMATOR POSITIONS
WERE "SET ASIDE", THE RECORD DISCLOSES THAT IN 1968 A NUMBER OF JOB
CATEGORIES, INCLUDING THAT OF PLANNER AND ESTIMATOR, WERE NOT INCLUDED
IN THE COORDINATED FEDERAL WAGE SYSTEM PENDING A SURVEY BY THE CIVIL
SERVICE COMMISSION. THIS APPARENTLY RESULTED IN A WAGE INCREASE BEING
DELAYED FOR SEVERAL YEARS. THE RECORD REVEALS, IN THIS REGARD, THAT A
REPRESENTATIVE OF THE MTC HAS BEEN MEETING WITH REPRESENTATIVES OF THE
CIVIL SERVICE COMMISSION ON A MONTHLY, AND MORE RECENTLY ON A WEEKLY,
BASIS TO TRY TO SECURE BACK PAY FOR EMPLOYEES IN THE DISPUTED POSITIONS,
INCLUDING THE PLANNERS AND ESTIMATORS.
THE RECORD REVEALS THAT NONE OF THE EMPLOYEES IN THE CLAIMED UNIT
HAVE FILED A GRIEVANCE WITH THE MTC AND THERE IS NO EVIDENCE THAT THE
MTC SHOP STEWARD FOR THE PUBLIC WORKS DEPARTMENT HAS EVER WITHHELD
REPRESENTATION FROM ANY BARGAINING UNIT EMPLOYEE, INCLUDING THOSE IN THE
CLAIMED UNIT. FURTHER, THE EVIDENCE ESTABLISHES THE ACTIVITY AND THE
MTC CONDUCT MONTHLY MEETINGS AT WHICH PERSONNEL POLICIES AND PRACTICES
AFFECTING THE WORKING CONDITIONS OF ALL UNIT EMPLOYEES ARE DISCUSSED.
BASED ON THE FOREGOING, I FIND THAT IT WOULD NOT EFFECTUATE THE
POLICIES OF THE ORDER TO SEVER THE REQUESTED UNIT FROM THE UNIT
CURRENTLY REPRESENTED BY THE MTC. THUS, THE RECORD REVEALS THAT THE MTC
HAS BEEN THE BARGAINING REPRESENTATIVE FOR THE REQUESTED EMPLOYEES FOR
OVER TEN YEARS, AND THAT, DURING THIS PERIOD, THERE IS NO EVIDENCE THAT
IT HAS FAILED TO AFFORD THESE EMPLOYEES EFFECTIVE AND FAIR
REPRESENTATION. /3/ MOREOVER, THERE IS NO EVIDENCE TO SHOW ANY KIND OF
CHANGED CIRCUMSTANCES WHICH MIGHT HAVE DESTROYED THE COMMUNITY OF
INTEREST BETWEEN THE EMPLOYEES SOUGHT AND THE REMAINDER OF THE EMPLOYEES
IN THE MTC'S UNIT. AS NOTED ABOVE, THE EMPLOYEES IN THE PETITIONED FOR
UNIT ARE PART OF AN INTEGRATED WORK PROCESS, HAVE SUBSTANTIAL WORK
CONTACTS WITH CERTAIN OTHER EMPLOYEES IN THE MTC'S UNIT, ARE UNDER THE
SAME SUPERVISION AS CERTAIN EMPLOYEES IN THE MTC'S UNIT, AND DO NOT HAVE
SUBSTANTIAL WORK CONTACTS WITH THE EMPLOYEES IN THE EXISTING PEP UNIT.
UNDER ALL THESE CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT BY THE PEP
IS INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION, AND
ACCORDINGLY, SHALL ORDER THAT THE INSTANT PETITION BE DISMISSED. /4/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 20-4264(RO) BE,
AND IT IS HEREBY, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 30, 1974
/1/ THE UNIT DESCRIPTION APPEARS ESSENTIALLY AS AMENDED AT THE
HEARING.
/2/ CURRENTLY, SEVEN LABOR ORGANIZATIONS REPRESENT THE ACTIVITY'S
EMPLOYEES IN EIGHT UNITS (UNIT SIZE IS INDICATED AS OF SEPTEMBER 30,
1973: (1) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1487,
AFL-CIO, (DATE OF EXCLUSIVE RECOGNITION) JANUARY 14, 1966, 23 EMPLOYEES;
(2)(A) INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 3, DECEMBER 2, 1963, 299 EMPLOYEES; (2)(B)
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL
3, DECEMBER 30, 1969, 41 EMPLOYEES; (3) FRATERNAL ORDER OF POLICE,
LOCAL 81, MARCH 22, 1967, 86 EMPLOYEES; (4) INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL F-61, MARCH 27, 1968, 32 EMPLOYEES; (5)
PATTERNMAKERS ASSOCIATION OF PHILADELPHIA AND VICINITY, SEPTEMBER 13,
1963, 15 EMPLOYEES; (6) PHILADELPHIA METAL TRADES COUNCIL, DECEMBER 2,
1963, 5,178 EMPLOYEES; AND (7) PEP, LOCAL 2, JUNE 13, 1967, 156
EMPLOYEES.
/3/ CF. UNITED STATES NAVAL CONSTRUCTION BATTALION CENTER, A/SLMR NO.
8 AND DEPARTMENT OF THE NAVY, NAVAL AIR STATION, CORPUS CHRISTI, TEXAS,
A/SLMR NO. 150, FLRC NO. 72A-24.
/4/ THE FACT THERE EXIST AT THE ACTIVITY SEVERAL LESS COMPREHENSIVE
UNITS THAN THAT REPRESENTED BY THE MTC, WHICH WERE ESTABLISHED UNDER
EXECUTIVE ORDER 10988, WAS NOT CONSIDERED TO REQUIRE A CONTRARY RESULT.
CF. U.S. NAVAL REWORK FACILITY, QUONSET POINT NAVAL AIR STATION, QUONSET
POINT, RHODE ISLAND, A/SLMR NO. 215.
4 A/SLMR 381; P. 261; CASE NO. 31-6129(CA); APRIL 30, 1974.
U.S. ARMY NATICK LABORATORIES,
NATICK, MASSACHUSETTS
A/SLMR NO. 381
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED AGAINST
U.S. ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS (RESPONDENT), BY
LOCAL R1-34, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (COMPLAINANT),
ALLEGING THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) OF EXECUTIVE
ORDER 11491, AS AMENDED, BY CERTAIN CONDUCT OF ITS ACTING CIVILIAN
PERSONNEL OFFICER (CPO). ESSENTIALLY, THE COMPLAINT ALLEGED THAT DURING
A CONVERSATION BETWEEN THE RESPONDENT'S CPO AND THE PRESIDENT AND
VICE-PRESIDENT OF THE COMPLAINANT, THE CPO IMPROPERLY THREATENED THE
COMPLAINANT'S PRESIDENT WITH CANCELLATION OF HIS SCHEDULED VACATION AND
WITH THE TERMINATION OF THE DUES WITHHOLDING AGREEMENT THEN IN EFFECT
BETWEEN THE RESPONDENT AND THE COMPLAINANT.
BASED UPON HIS RESOLUTION OF THE CREDIBILITY ISSUES, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT, IN FACT, THE RESPONDENT'S CPO
THREATENED TO RECOMMEND TO THE COMMANDING OFFICER OF THE RESPONDENT THAT
HE DISCONTINUE THE DUES WITHHOLDING AGREEMENT THEN IN EFFECT BETWEEN
RESPONDENT AND COMPLAINANT, AND THAT SUCH THREAT CONSTITUTED A VIOLATION
OF SECTION 19(A)(1) OF THE ORDER. IN ADDITION, THE ADMINISTRATIVE LAW
JUDGE FOUND THE RESPONDENT'S CPO THREATENED TO CANCEL THE COMPLAINANT'S
PRESIDENT'S VACATION, BUT RECOMMENDED THAT NO VIOLATION OF SECTION
19(A)(1) BE FOUND BECAUSE THE EVIDENCE DISCLOSED THAT THE CPO
IMMEDIATELY WITHDREW HIS THREAT AND, THEREAFTER, THE PRESIDENT OF THE
COMPLAINANT WAS ALLOWED TO TAKE HIS VACATION AS SCHEDULED.
NOTING THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY ADOPTED
THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE RESPONDENT
CEASE AND DESIST FROM THE CONDUCT FOUND VIOLATIVE AND TAKE CERTAIN
AFFIRMATIVE ACTIONS TO REMEDY SUCH CONDUCT.
U.S. ARMY NATICK LABORATORIES,
NATICK, MASSACHUSETTS
AND
LOCAL R1-34,
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
ON FEBRUARY 27, 1974, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT, U.S. ARMY NATICK LABORATORIES, NATICK,
MASSACHUSETTS, 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 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, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS
/1/ , CONCLUSIONS AND RECOMMENDATION 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 U.S. ARMY NATICK
LABORATORIES, NATICK, MASSACHUSETTS, SHALL:
1. CEASE AND DESIST FROM:
(A) THREATENING TO TERMINATE UNILATERALLY THE DUES WITHHOLDING
AGREEMENT BETWEEN THE U.S. ARMY NATICK LABORATORIES, NATICK,
MASSACHUSETTS AND LOCAL R1-34, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) POST AT THE U.S. ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS,
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 U.S. ARMY NATICK LABORATORIES 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 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.
APRIL 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, AT FOOTNOTE 1.
WE WILL NOT THREATEN LOCAL R1-34, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, OR ANY OF ITS OFFICERS OR MEMBERS, WITH UNILATERAL
TERMINATION OF THE DUES WITHHOLDING AGREEMENT BETWEEN THE U.S. ARMY
NATICK LABORATORIES AND LOCAL R1-34, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED THEM BY
THE EXECUTIVE ORDER.
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, UNITED STATES DEPARTMENT OF LABOR, WHOSE
ADDRESS IS ROOM 3515, 1515 BROADWAY, NEW YORK, NEW YORK 10036.
IN THE MATTER OF
U.S. ARMY NATICK LABORATORIES
NATICK, MASSACHUSETTS
AND
LOCAL R1-34
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
JOHN P. MULVIHILL, ESQUIRE
ARTHUR J. O'KEEFE, ESQUIRE
U.S. ARMY NATICK LABORATORIES
KANSAS STREET
NATICK, MASSACHUSETTS 01760
ROBERT J. CANAVAN, ESQUIRE
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
285 DORCHESTER AVENUE
BOSTON, MASSACHUSETTS 02127
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING WAS INITIATED UPON THE FILING OF A COMPLAINT ALLEGING
A VIOLATION OF SEC. 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BY
THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-34
(HEREINAFTER REFERRED TO AS LOCAL R1-34 OR THE UNION) AGAINST THE U.S.
ARMY NATICK LABORATORIES, NATICK, MASSACHUSETTS, (HEREINAFTER REFERRED
TO AS THE ACTIVITY) ON OCTOBER 5, 1972. THE COMPLAINT CHARGES THAT ON
AUGUST 10, 1972, MR. NICHOLAS MORANA, THEN ACTING CIVILIAN PERSONNEL
OFFICER AT THE ACTIVITY, THREATENED TO CANCEL THE VACATION OF MR. GEORGE
HORNER, SECURITY GUARD EMPLOYEE AND PRESIDENT OF LOCAL R1-34, AND
THREATENED TO DISCONTINUE THE PLAN IN EFFECT AT THE ACTIVITY FOR
DEDUCTION OF UNION DUES FROM THE PAY CHECKS OF CONSENTING EMPLOYEES.
A NOTICE OF HEARING ON THE COMPLAINT WAS ISSUED ON JANUARY 24, 1973,
BY THE LABOR-MANAGEMENT SERVICES ADMINISTRATION REGIONAL ADMINISTRATOR,
NEW YORK REGION. PURSUANT THERETO, A HEARING WAS HELD ON MARCH 27,
1973, AT THE ACTIVITY IN NATICK, MASSACHUSETTS. BOTH PARTIES WERE
PRESENT AND REPRESENTED BY COUNSEL 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 OF FACT,
CONCLUSION OF LAW AND RECOMMENDATION.
LOCAL R1-34, HAS BEEN THE RECOGNIZED BARGAINING REPRESENTATIVE OF A
UNIT OF APPROXIMATELY 950 EMPLOYEES AT THE ACTIVITY SINCE 1965. ON
AUGUST 10, 1972, /1/ THE DATE OF THE ALLEGED UNFAIR LABOR PRACTICE,
THERE WAS NO COLLECTIVE BARGAINING AGREEMENT IN FORCE AT THE ACTIVITY,
THE LAST SUCH AGREEMENT HAVING EXPIRED IN NOVEMBER OF 1971. THE PARTIES
STIPULATE, HOWEVER, THAT ON THE DATE IN QUESTION THERE WAS IN EFFECT AT
THE ACTIVITY AN AGREEMENT UNDER WHICH DUES WERE WITHHELD FROM THE PAY
CHECKS OF CONSENTING EMPLOYEES. THIS AGREEMENT WAS NOT PRODUCED AT THE
HEARING OR INTRODUCED INTO EVIDENCE.
SEVERAL DAYS PRIOR TO AUGUST 10, A REGISTERED LETTER FROM THE
REGIONAL ADMINISTRATOR OF THE DEPARTMENT OF LABOR, LABOR-MANAGEMENT
SERVICES ADMINISTRATION, ADDRESSED TO GEORGE F. HORNER, PRESIDENT OF
LOCAL R1-34, WAS DELIVERED TO THE ACTIVITY MAILROOM. THIS
CORRESPONDENCE CONCERNED A THEN ACTIVE DISPUTE BETWEEN THE ACTIVITY AND
THE UNION UNRELATED TO THE PRESENT CASE. ALTHOUGH IT IS NOT CLEAR FROM
THE EVIDENCE UNDER WHAT AUTHORITY THE MAILROOM PERSONNEL WERE ACTING,
THIS CERTIFIED LETTER WAS OPENED BEFORE MR. HORNER LEARNED OF ITS
RECEIPT. WHEN MR. HORNER DISCOVERED THAT HIS LETTER WAS OPENED HE
REGISTERED A COMPLAINT WITH THE POSTMASTER AT THE ACTIVITY, MR. LOU
SAGE. SEEKING GUIDANCE AS TO ADDITIONAL ACTION HE WOULD BE ADVISED TO
TAKE IN RESPONSE TO THE MAILROOM INCIDENT, MR. HORNER TELEPHONED MR.
CHARLES E. HICKEY AT THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
(NAGE) NATIONAL HEADQUARTERS AND RELATED THE INCIDENT TO HIM. SOMETIME
AFTER THIS CONVERSATION THE DETAILS OF THE INCIDENT WERE RELATED TO MR.
JOHN CRAMER, A REPORTER FOR THE WASHINGTON STAR-NEWS WHO AUTHORS A
COLUMN OF INTEREST TO FEDERAL EMPLOYEES.
BETWEEN 9:00 A.M., AND 9:30 A.M., ON AUGUST 10, MR. MORANA RECEIVED A
TELEPHONE CALL FROM MR. CRAMER WHO REPEATED TO HIM THE INFORMATION
REGARDING THE MAILROOM INCIDENT HE HAD RECEIVED. MR. MORANA WAS TOLD
ONLY THAT THIS REPORT HAD COME FROM SOMEONE IN NAGE, AND HE WAS INFORMED
THAT THE SOURCE OF SUCH INFORMATION STATED THAT MAILROOM PERSONNEL AT
THE ACTIVITY WERE INSTRUCTED BY MR. MORANA TO OPEN ALL MAIL ADDRESSED TO
THE UNION.
IT IS AGAINST THIS BACKDROP THAT MR. HORNER AND MR. GREGORY L.
CHIRIACO, VICE PRESIDENT OF LOCAL R1-34, BOTH NEWLY ELECTED TO THEIR
UNION OFFICES, MET WITH MR. MORANA ON AUGUST 10. THE TESTIMONY OF
MESSRS. HORNER AND CHIRIACO REGARDING WHAT OCCURRED AT THE MEETING
DIFFERS SIGNIFICANTLY FROM THE VERSION OFFERED IN THE TESTIMONY OF MR.
MORANA. THE ESSENTIAL ISSUE IN CONTEST IN THIS PROCEEDING BEING ONE OF
FACT, THE RESOLUTION OF THE INSTANT COMPLAINT TURNS ON THE CREDIBILITY
ACCORDED TO THE TESTIMONY OF THE PARTICIPANTS TO THE AUGUST 10 MEETING.
IT IS THEREFORE NECESSARY TO REVIEW THAT TESTIMONY IN SOME DETAIL.
MR. HORNER TESTIFIED THAT IN THE EARLY MORNING OF AUGUST 10 WHILE ON
DUTY IN THE SERVICE GATE GUARDHOUSE AT THE ACTIVITY, HE CONTACTED MR.
CHIRIACO AT ANOTHER LOCATION WITHIN THE ACTIVITY AND ASKED HIM TO COME
TO THE GATE HOUSE TO DISCUSS UNION BUSINESS. MR. HORNER WAS PLANNING
TO BE AWAY FROM THE ACTIVITY FOR SEVERAL WEEKS ON VACATION AND WANTED TO
BRIEF MR. CHIRIACO ON UP-COMING UNION ACTIVITIES. AFTER MR. CHIRIACO
ARRIVED AT THE GATE HOUSE, AND WHILE HE WAS TALKING WITH MR. HORNER, MR.
MORANA APPEARED AT THE GATE HOUSE DOOR AND, ACCORDING TO MR. HORNER,
THE FOLLOWING EXCHANGE ENSUED:
MORANA: WHAT IS THIS A PRIVATE MEETING OR CAN ANYONE GET IN?
HORNER: HI NICK, COME ON IN AND MEET THE ACTING PRESIDENT FOR THE
NEXT TWO WEEKS.
MORANA: WHERE ARE YOU GOING?
HORNER: I AM GOING ON VACATION.
MORANA: DON'T COUNT ON IT.
HORNER: I AM COUNTING ON IT, IT HAS BEEN PLANNED, SCHEDULED AND
APPROVED.
MORANA: I WOULDN'T BANK ON IT.
HORNER: I AM BANKING ON IT, I AM GOING.
MORANA: OKAY, GO AHEAD ON YOUR VACATION. THERE MAY NOT BE A UNION
WHEN YOU COME BACK, I WILL GO TO THE OLD MAN (GENERAL MCWHORTER,
COMMANDING OFFICER AT THE ACTIVITY) AND HAVE HIM STOP PAYROLL DEDUCTIONS
(FOR UNION DUES).
MR. HORNER TESTIFIED THAT MORANA THEN TURNED TO HIM AND ACCUSED HIM
OF "SCREWING UP" AND WRITING THE LETTER TO MR. CRAMER WHICH WAS THE
SUBJECT OF MR. MORANA'S EARLIER CONVERSATION. MR. MORANA THEN ALLEGEDLY
ACCUSED MR. HORNER OF BREAKING THE "GENTLEMEN'S AGREEMENT" ACTIVITY
MANAGEMENT HAD WITH PAST UNION PRESIDENT, THOMAS MILES, TO THE EFFECT
THAT ALL EFFORTS WOULD BE MADE TO RESOLVE ANY DIFFERENCES WITHIN THE
ACTIVITY BEFORE EITHER PARTY WENT OUTSIDE. MR. HORNER DISAVOWED
KNOWLEDGE OF THE PURPORTED AGREEMENT AND ANNOUNCED THAT HE DID NOT
CONSIDER HIMSELF BOUND THEREBY. HE THEN TOLD MR. MORANA THAT HE DID NOT
KNOW MR. CRAMER AND HAD NEVER CORRESPONDED WITH HIM. ACCORDING TO
HORNER, MR. MORANA THEN BECAME VERY AGITATED AND VERBALLY ABUSED HIM
BEFORE LEAVING THE GUARD SHACK.
MR. CHIRIACO, WHO IS EMPLOYED AT THE ACTIVITY AS A MECHANICAL
ENGINEER, WAS PRESENT AT THE GATE HOUSE DURING THE EXCHANGE BETWEEN
HORNER AND MORANA. HE TESTIFIED THAT SHORTLY AFTER HE HAD ARRIVED AT
THE GATE HOUSE IN RESPONSE TO MR. HORNER'S EARLY MORNING CALL, HE SAW
MR. MORANA APPROACH THE HOUSE "IN A VERY DETERMINED FASHION." WHEN
MORANA ASKED IF HE COULD ENTER THE HOUSE, HORNER INVITED HIM IN AND
SAID, REFERRING TO CHIRIACO, "I WANT YOU TO MEET THE ACTING PRESIDENT
FOR THE NEXT TWO WEEKS, WHILE I AM ON VACATION." CHIRIACO TESTIFIED THAT
MORANA REPLIED, "DON'T BANK ON IT," AND WHEN HORNER REPEATED THAT HE
INTENDED TO TAKE HIS SCHEDULED VACATION, MORANA AGAIN REPLIED, "DON'T
BANK ON IT, GEORGE."
CHIRIACO TESTIFIED THAT MR. MORANA THEN TURNED TO MR. HORNER AND
SAID, "YOU KNOW, GEORGE, I THINK MORE ABOUT UNION MEMBERS THAN YOU DO.
YOU KNOW THIS IS NO WAY TO RUN A UNION. YOU KNOW WE CAN STOP PAYROLL
DEDUCTIONS IF WE WANT TO, AND I MIGHT JUST ASK THE OLD MAN." THEN
FOLLOWED THE EXCHANGE OVER THE "GENTLEMEN'S AGREEMENT" MR. MORANA
PURPORTEDLY HAD WITH MR. MILES AND A DISCUSSION CONCERNING THE CRAMER
TELEPHONE CALL. ACCORDING TO MR. CHIRIACO, MR. MORANA THEN ACCUSED MR.
HORNER OF HAVING "GOT(TEN) THINGS SCREWED UP AS USUAL," AND WITH THAT
MORANA LEFT THE GATE HOUSE.
MR. MORANA'S RECOLLECTION OF THE AUGUST 10 MEETING IN THE GATE HOUSE
DIFFERS SIGNIFICANTLY FROM THAT OFFERED BY MSSRS. HORNER AND CHIRIACO.
MORANA TESTIFIED THAT HE RECEIVED A TELEPHONE CALL FROM MR. CRAMER OF
THE WASHINGTON STAR-NEWS NEWSPAPER AT 9:00 OR 9:30 A.M., ON THE MORNING
OF AUGUST 10. MR. CRAMER READ TO HIM PORTIONS OF A LETTER FROM SOMEONE
IN NAGE STATING THAT HE HAD ORDERED THE OPENING OF CLASSIFIED MAIL
ADDRESSED TO THE UNION AT NATICK LABORATORIES. MR. MORANA TESTIFIED
THAT HE HAD MADE NO SUCH ORDER AND FELT THAT THE MAILROOM INCIDENT OF
WHICH MR. HORNER HAD COMPLAINED WAS DEPLORABLE. HE STATED FURTHER THE
REGULATIONS GOVERNING MAIL HANDLING HAVE SINCE BEEN CLARIFIED TO PREVENT
ANY SIMILAR BREACH.
MR. MORANA FURTHER TESTIFIED THAT AT APPROXIMATELY 10:00 A.M., AFTER
HIS CONVERSATION WITH MR. CRAMER, HE WENT TO THE GATE HOUSE TO TALK TO
MR. HORNER CONCERNING WHAT HE CONSIDERED TO BE THE FALSE ACCOUNT GIVEN
TO MR. CRAMER. WHEN HORNER TOLD HIM THAT HE WAS BRIEFING MR. CHIRIACO
ON UNION BUSINESS BECAUSE OF HIS UP-COMING VACATION, MR. MORANA RECALLS
HAVING SAID, "GEORGE, WHY DON'T YOU STICK AROUND AND CLEAR UP THE
GRIEVANCES, WE HAVE 19 OF THEM PENDING." MR. HORNER THEN SAID, "I CAN'T,
I HAVE MY VACATION PLANNED AND I AM GOING," AND MORANA REPLIED, "GO
AHEAD."
MR. MORANA THEN RECALLS HAVING BROUGHT UP THE CRAMER TELEPHONE CALL
AND STATING THAT HE COULD NOT UNDERSTAND HOW SUCH MISINFORMATION WAS
DIRECTED TO MR. CRAMER. WHEN MR. HORNER EXPLAINED THAT HE HAD CALLED
MR. HICKEY AT NAGE HEADQUARTERS TO ASK HIS ADVICE REGARDING THE MAILROOM
INCIDENT, MR. MORANA ASKED HIM IF HE KNEW OF THE UNWRITTEN AGREEMENT
MANAGEMENT HAD WITH MR. MILES. WHEN BOTH HORNER AND CHIRIACO PROFESSED
IGNORANCE OF THE AGREEMENT, MR. MORANA EXPLAINED IT TO THEM. ACCORDING
TO MR. MORANA'S TESTIMONY HE THEN ASKED MR. HORNER AND MR. CHIRIACO IF
THEY KNEW OF THE BARGAINING AGREEMENT WHICH HAD RECENTLY EXPIRED AND OF
THE AGREEMENT BETWEEN THE UNION AND THE ACTIVITY CONCERNING DUES
WITHHOLDING. HE EXPLAINED TO THEM THAT IN CERTAIN CIRCUMSTANCES DUES
WITHHOLDING COULD BE DISCONTINUED BY THE ACTIVITY, GIVING AS EXAMPLES
PROOF OF COMMUNIST INFILTRATION WITHIN THE UNION OR ENCOURAGEMENT OF
WORK STOPPAGES BY THE UNION. THE PURPOSE OF THIS DISCOURSE WAS,
ACCORDING TO MORANA, MERELY TO FAMILIARIZE THE NEW UNION OFFICERS WITH
VARIOUS ASPECTS OF LABOR-MANAGEMENT RELATIONS AT THE ACTIVITY.
MR. MORANA TESTIFIED THAT WHILE HE WAS UPSET ABOUT THE LETTER TO MR.
CRAMER WHEN HE ORIGINALLY ARRIVED AT THE GATE HOUSE, HE WAS "VERY COOL"
AS HE DISCUSSED THE MATTER LATER WITH MR. HORNER. HE FURTHER TESTIFIED
THAT HE HAD NOT THREATENED TO CANCEL MR. HORNER'S VACATION, THAT HE HAD
NOT USED THE EXPRESSION "SCREWED UP" TO DESCRIBE MR. HORNER'S CONDUCT OF
UNION AFFAIRS AND THAT HE HAD NEVER REFERRED TO GENERAL MCWHORTER AS THE
"OLD MAN," ALTHOUGH HE HAD OFTEN USED THAT TERM WHILE ON DUTY AS A
LIEUTENANT COLONEL IN THE U.S. ARMY RESERVE TO REFER TO A COMPANY OR
BATTALION COMMANDER.
AT THE HEARING OF THIS MATTER THE ACTIVITY SOUGHT TO INTRODUCE INTO
EVIDENCE TWO ARBITRATION DECISIONS FOR THE PURPOSE OF IMPEACHING THE
CREDIBILITY OF MESSRS. HORNER AND CHIRIACO. EACH DECISION DEALT WITH A
GRIEVANCE APPEAL TAKEN FROM AN ADVERSE MANAGEMENT ACTION. IN EACH
DECISION THE ARBITRATOR QUESTIONED THE CREDIBILITY OF THE TESTIMONY
OFFERED BY THE GRIEVANT.
IN THE DECISION DEALING WITH MR. HORNER, /2/ THE ARBITRATOR FOUND
GROUND TO SERIOUSLY QUESTION MR. HORNER'S TESTIMONY REGARDING HIS
ALLEGED NEED FOR EMERGENCY ANNUAL LEAVE. ON THE BASIS OF ALL THE
EVIDENCE THE ARBITRATOR AFFIRMED THE GRIEVANCE EXAMINER'S FINDINGS THAT
THE ACTIVITY PROPERLY DISALLOWED THE LEAVE REQUESTED.
IN THE DECISION CONCERNING MR. CHIRIACO, /3/ THE ARBITRATOR DENIED
THE GRIEVANCE APPEAL, FINDING THAT THE TESTIMONY OF THE GRIEVANT LACKED
ACCEPTABILITY FOR SEVERAL STATED REASONS. RULING ON THE ADMISSIBILITY
OF THE PROFFERED EXHIBITS WAS RESERVED FOR FULLER CONSIDERATION.
HEARINGS HELD ON COMPLAINTS FILED UNDER THE EXECUTIVE ORDER ARE NOT
GOVERNED BY TECHNICAL RULES OF EVIDENCE. ANY EVIDENCE MAY BE RECEIVED
EXCEPT THAT WHICH IS FOUND TO BE IMMATERIAL, IRRELEVANT, REPETITIOUS, OR
PRIVILEGED, 29 CFR 203.13. THE CREDIBILITY OF A WITNESS IS ALWAYS A
MATERIAL ISSUE IN PROCEEDINGS UNDER THE ORDER. I AM UNCONVINCED,
HOWEVER, THAT THE PROFFER OF THE ACTIVITY IS AT ALL RELEVANT TO THE
PRESENT INQUIRY. IN A MATTER ARISING UNDER THE NATIONAL LABOR RELATIONS
ACT, 29 U.S.C. 151, ET SEQ., THE FIFTH CIRCUIT RULED AS FOLLOWS ON
SIMILAR EVIDENCE CONSIDERED BY THE NLRB IN ITS DETERMINATION OF AN
UNFAIR LABOR PRACTICE CHARGE:
* * * CREDIBILITY OF A WITNESS IS A MATTER WHICH IS TO BE DETERMINED
BY THE TRIER OF FACTS
IN THE PARTICULAR CASE. 58 AM.JR. 487, WITNESSES SEC. 860. THE
DISBELIEF BY THE EXAMINER IN
THE FORMER CASE OF THE TESTIMONY THERE GIVEN BY (THE WITNESS) IS NOT
ENTITLED TO
CONSIDERATION, BY A DIFFERENT EXAMINER IN A DIFFERENT CASE, AS TO
WHETHER HE SHOULD CREDIT OR
DISCREDIT THE TESTIMONY GIVEN IN THE LATTER CASE BY THE WITNESS * *
*. NLRB V. WALTON
MANUFACTURING COMPANY, 286 F.2D 26, 29 (1961).
THE EVIDENCE IS THEREFORE EXCLUDED.
COMPLAINANT SOUGHT TO ADMIT INTO EVIDENCE A DOCUMENT CONTAINING A
SUMMARY OF COMPLAINTS IN THE FORM OF GRIEVANCES, APPEALS, UNFAIR LABOR
PRACTICE CHARGES, AND EEO COMPLAINTS FILED BY EMPLOYEES OF THE ACTIVITY.
/4/ INCLUDED IN THIS SUMMARY ARE STATISTICS REFLECTING THE SUCCESS OR
LACK OF SUCCESS ENJOYED BY EMPLOYEES IN THE PROSECUTION OF THEIR
COMPLAINTS. THIS SUMMARY WAS OFFERED TO PROVE ANTIUNION ANIMUS ON THE
PART OF THE ACTIVITY. WHILE I FEEL CONSTRAINED TO ALLOW THE ADMISSION
OF THE EXHIBIT, I CANNOT INFER FROM ITS PUBLICATION AN INTENT ON THE
PART OF MR. MORANA OR OTHER MANAGEMENT OFFICIALS TO INTIMIDATE EMPLOYEES
OR TO DISSUADE THEM FROM AVAILING THEMSELVES OF EXISTING PROCEDURES TO
AIR AND SEEK ADJUSTMENT OF GRIEVANCES AND COMPLAINTS. THEREFORE, I
CANNOT FIND FROM THE EVIDENCE THE ANTIUNION ANIMUS COMPLAINANT SOUGHT TO
PROVE WITH ITS ADMISSION.
THE EVIDENCE TAKEN AS A WHOLE ESTABLISHES THAT ON THE MORNING OF
AUGUST 10 MR. MORANA RECEIVED A TELEPHONE CALL FROM MR. CRAMER OF THE
WASHINGTON STAR-NEWS. MR. CRAMER RELATED TO HIM A CHARGE MADE IN A
LETTER FROM SOMEONE IN NAGE THAT THE ACTIVITY MAILROOM HAD IMPROPERLY
HANDLED A CERTIFIED LETTER ADDRESSED TO MR. HORNER IN HIS CAPACITY AS
UNION PRESIDENT. IT IS APPARENT THAT MR. MORANA BELIEVED THAT MR.
HORNER HIMSELF WAS THE SOURCE OF THIS REPORT, ALTHOUGH THIS LATER PROVED
TO BE UNTRUE. MR. MORANA DESCRIBED HIMSELF AS "UPSET" AFTER HIS
CONVERSATION WITH MR. CRAMER BECAUSE OF WHAT HE CONSIDERED TO BE THE
FALSE NATURE OF THE REPORT MADE TO HIM. IT ALSO APPEARS LIKELY THAT MR.
MORANA WAS IRRITATED BY WHAT HE CONCEIVED TO BE A BREACH BY MR. HORNER
OF THE "GENTLEMEN'S AGREEMENT" THE ACTIVITY HAD HAD WITH MR. MILES, MR.
HORNER'S PREDECESSOR IN OFFICE. SHORTLY AFTER HIS CONVERSATION WITH MR.
CRAMER, MR. MORANA WENT TO THE SERVICE GUARD HOUSE WHERE HE KNEW MR.
HORNER WAS STATIONED. THERE FOLLOWED THE MEETING FROM WHICH THE PRESENT
COMPLAINT FLOWED.
IT HAS NOT BEEN EASY FOR ME TO RESOLVE THE CREDIBILITY OF THE
WITNESSES. IT IS APPARENT TO ME THAT MR. MORANA WAS STUNG BY THE
TELEPHONE CALL FROM MR. CRAMER, AND THAT HE WAS ANGERED BY WHAT HE
REGARDED TO BE THE RELAYING OF FALSE INFORMATION TO A REPORTER COVERING
THE GOVERNMENT SCENE, IN VIOLATION OF A GENTLEMEN'S AGREEMENT NOT TO AIR
SUCH MATTERS PUBLICLY BEFORE A GENUINE EFFORT HAD BEEN MADE TO IRON THEM
OUT WITHIN THE LABORATORIES. IT IS ALSO CLEAR THAT HE ATTRIBUTED SUCH
UNAPPRECIATED CONDUCT TO MR. HORNER. AS I HAVE REVIEWED THE CONFLICTING
TESTIMONY, I HAVE BEEN REPEATEDLY STRUCK, AS I WAS AT THE HEARING, BY
THE INCONGRUITY OF MR. MORANA'S PROFESSED DESIRE TO INSTRUCT THESE TWO
UNION OFFICERS CONCERNING ASPECTS OF THE COLLECTIVE BARGAINING AGREEMENT
WHICH WERE IN ANY WAY GERMANE EITHER TO THE MAILROOM INCIDENT OR TO THE
IMPENDING VACATION OF MR. HORNER. RATHER, THEY STRIKE ME AS AN EFFORT
TO INNOCENTLY EXPLAIN AWAY, WITHOUT ALTOGETHER DENYING, REMARKS WHICH
WERE MADE IN ANGER AND WHICH WERE INTENDED AS A THREAT TO THE UNION. I
FIND THAT MR. MORANA DID, IN ANGER, THREATEN TO GO TO THE COMMENDING
OFFICER FOR PURPOSES OF SEEKING AN END TO THE ARRANGEMENT FOR A DUES
DEDUCTION, AND THAT HE WAS MOTIVATED IN DOING SO BY THE FACTORS NOTED
ABOVE.
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, UNDER WHICH THE PRESENT
COMPLAINT IS PROSECUTED, MAKES IT UNLAWFUL FOR AGENCY MANAGEMENT TO
"INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE
RIGHTS GRANTED IN SEC. 1(A) "* * * TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION * * *."
A LABOR ORGANIZATION HOLDING EXCLUSIVE RECOGNITION AND THE AGENCY MAY
AGREE IN WRITING TO A SYSTEM OF DUES CHECKOFF UNDER SEC. 21(A) WHEREBY
REGULAR AND PERIODIC DUES ARE DEDUCTED FROM THE PAY OF CONSENTING
MEMBERS OF THE ORGANIZATION. IT IS UNDENIABLE THAT A DUES CHECKOFF
PROGRAM, IN ADDITION TO BEING A CONVENIENCE TO THOSE EMPLOYEES WHO WISH
TO PARTICIPATE, IS ALSO ADVANTAGEOUS TO THE SECURITY AND WELFARE OF THE
LABOR ORGANIZATION AS A WHOLE. THE INDIVIDUAL PARTICIPATION OF
EMPLOYEES IN SUCH A PROGRAM THUS PROVIDES SUPPORT AND ASSISTANCE TO THE
EXCLUSIVE REPRESENTATIVE. THREATENED ACTIVITY ACTION TO UNILATERALLY
TERMINATE A LEGITIMATE DUES WITHHOLDING PROCEDURE THUS NOT ONLY
THREATENS THE WELL BEING OF THE LABOR ORGANIZATION BUT ALSO INTERFERES
WITH THE RIGHT OF INDIVIDUAL EMPLOYEES TO ASSIST AND MAINTAIN THEIR
ORGANIZATION.
THAT THE THREATENED ACTION IF CARRIED OUT MIGHT ALSO BE AN
INDEPENDENT VIOLATION OF THE AGREEMENT UNDER WHICH DUES CHECKOFF WAS
ESTABLISHED DOES NOT AFFECT THE CHARACTER OF THE THREAT VIEWED THROUGH
THE ORDER. LIKEWISE, MR. HORNER'S ALLEGED VIOLATION OF THE SO-CALLED
"GENTLEMEN'S AGREEMENT" THE ACTIVITY HAD WITH THE PAST UNION PRESIDENT
OFFERS NO EXCUSE OR JUSTIFICATION FOR MR. MORANA'S ACTIONS.
THEREFORE, I FIND AND CONCLUDE THAT MR. MORANA'S ACTIONS AT THE
AUGUST 10 MEETING AND THE THREAT THERE MADE TO UNILATERALLY END DUES
CHECKOFF WERE VIOLATIVE OF SEC. 19(A)(1) OF THE EXECUTIVE ORDER 11491.
/5/
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF SEC.
19(A)(1) OF THE ORDER, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT
THE FOLLOWING ORDER TO EFFECTUATE THE PURPOSES OF EXECUTIVE ORDER.
11491.
PURSUANT TO SEC. 6(B) OF EXECUTIVE ORDER 11491 AND SEC. 203.25(A) OF
THE REGULATIONS, THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS HEREBY ORDERS THAT THE UNITED STATES ARMY NATICK LABORATORIES,
NATICK, MASSACHUSETTS, SHALL:
1. CEASE AND DESIST FROM:
(A) ENGAGING IN CONDUCT WHICH INTERFERES WITH, RESTRAINS, OR COERCES
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491.
(B) THREATENING UNION MEMBERS OR OFFICERS WITH THE LOSS OF
LEGITIMATELY GAINED DUES CHECKOFF PRIVILEGES.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) POST AT THE UNITED STATES ARMY NATICK LABORATORIES, NATICK,
MASSACHUSETTS, 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 UNITED STATES NATICK LABORATORIES 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 OR DEFACED OR COVERED
BY ANY OTHER MATERIAL.
(B) PURSUANT TO SEC. 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 THEREWITH.
DATED: FEBRUARY 27, 1974
WASHINGTON, D.C.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, BY THREATENING TO
TERMINATE THE AGREEMENT FOR CHECKOFF OF UNION DUES.
DATED..... BY 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 REGIONAL
ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED
STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS 110 TREMONT STREET, BOSTON,
MASSACHUSETTS.
/1/ UNLESS OTHERWISE INDICATED ALL DATES MENTIONED HEREINAFTER REFER
TO CALENDAR YEAR 1972.
/2/ MARKED FOR IDENTIFICATION AS RESPONDENT'S EXHIBIT NO. 3.
/3/ MARKED FOR IDENTIFICATION AS RESPONDENT'S EXHIBIT NO. 4.
/4/ MARKED FOR IDENTIFICATION AS CLAIMANT'S EXHIBIT NO. 1.
/5/ WHILE I ALSO FIND THAT MR. MORANA THREATENED TO DENY MR. HORNER
HIS VACATION, I FIND NO VIOLATION BECAUSE MR. MORANA SO QUICKLY REVERSED
HIMSELF.
4 A/SLMR 380; P. 257; CASE NO. 72-4202; APRIL 30, 1974.
BUREAU OF RECLAMATION,
BOULDER CANYON PROJECT OFFICE,
BOULDER CITY, NEVADA
A/SLMR NO. 380
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
STEVE SYLVANIE, AN INDIVIDUAL, (COMPLAINANT), ALLEGING THAT THE BUREAU
OF RECLAMATION, BOULDER CANYON PROJECT OFFICE, BOULDER CITY, NEVADA
(RESPONDENT) VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER BASED ON ITS
DISCRIMINATORY DISCHARGE OF THE COMPLAINANT, A PROBATIONARY EMPLOYEE.
AT THE OUTSET OF THE HEARING, THE RESPONDENT MOVED TO DISMISS THE
COMPLAINT ON THE GROUND THAT IT WAS FILED UNTIMELY UNDER THE
REQUIREMENTS OF SECTION 203.2(B)(2) OF THE ASSISTANT SECRETARY'S
REGULATIONS. THE RESPONDENT CONTENDED THAT THE COMPLAINANT WAS
ATTEMPTING TO REFILE, ON HIS OWN BEHALF, THE SAME UNFAIR LABOR PRACTICE
CHARGE WHICH LOCAL 1978, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO (AFGE), THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
EMPLOYEES, HAD PREVIOUSLY FILED ON THE COMPLAINANT'S BEHALF, BUT HAD
FAILED TO ACT UPON WITHIN THE PRESCRIBED 60 DAY PERIOD, AFTER RECEIVING
THE RESPONDENT'S FINAL DECISION ON THE CHARGE. THE COMPLAINANT TOOK THE
POSITION AT THE HEARING AND IN ITS SUPPORTING BRIEF THAT AN UNFAIR LABOR
PRACTICE CHARGE WHICH HAS BEEN ALLOWED TO REMAIN DORMANT FOR MORE THAN
60 DAYS AFTER A FINAL DECISION WITHOUT THE FILING OF A COMPLAINT MAY BE
REFILED BY ANOTHER PARTY AND THAT A SUBSEQUENT COMPLAINT IS TIMELY IF
FILED WITHIN 60 DAYS FOLLOWING THE FINAL DECISION ON THE REFILED CHARGE.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE AFGE ACTED AS THE AGENT FOR THE COMPLAINANT
WHEN IT FILED THE EARLIER CHARGE ON BEHALF OF THE LATTER. THUS, IT WAS
CONCLUDED THAT WHEN THE AFGE FILED THE CHARGE ON NOVEMBER 22, 1972, IT
WAS ACTING AS AGENT FOR THE COMPLAINANT, AND THAT CHARGE WAS, IN EFFECT,
THE COMPLAINANT'S CHARGE. AND WHEN THE AFGE FAILED TO FILE A COMPLAINT
WITHIN THE PRESCRIBED 60 DAY PERIOD, SUBSEQUENT TO THE SERVICE OF THE
RESPONDENT'S FINAL DECISION OF DECEMBER 15, 1972, IN ACCORDANCE WITH THE
REQUIREMENTS OF SECTION 203.2(B)(2) OF THE ASSISTANT SECRETARY'S
REGULATIONS, THE COMPLAINANT, IN EFFECT, FAILED TO FILE HIS COMPLAINT IN
A TIMELY FASHION.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED.
BUREAU OF RECLAMATION,
BOULDER CANYON PROJECT OFFICE,
BOULDER CITY, NEVADA
AND
STEVE SYLVANIE,
AN INDIVIDUAL,
BOULDER CITY, NEVADA
ON JANUARY 25, 1974, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE COMPLAINT HEREIN WAS UNTIMELY FILED AND RECOMMENDING
THAT IT BE DISMISSED. 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
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE.
THE INSTANT COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BASED ON ITS DISCRIMINATORY DISCHARGE OF
THE COMPLAINANT, A PROBATIONARY EMPLOYEE.
AT THE OUTSET OF THE HEARING, THE RESPONDENT MOVED TO DISMISS THE
COMPLAINT ON THE GROUND THAT IT WAS FILED UNTIMELY UNDER THE
REQUIREMENTS OF SECTION 203.2(B)(2) OF THE ASSISTANT SECRETARY'S
REGULATIONS. /1/ THE RESPONDENT CONTENDED THAT THE COMPLAINANT WAS
ATTEMPTING TO REFILE, ON HIS OWN BEHALF, THE SAME UNFAIR LABOR PRACTICE
CHARGE WHICH LOCAL 1978, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, (AFGE), THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT'S
EMPLOYEES, HAD PREVIOUSLY FILED ON THE COMPLAINANT'S BEHALF, BUT HAD
FAILED TO ACT UPON WITHIN THE PRESCRIBED 60 DAY PERIOD AFTER RECEIVING
THE RESPONDENT'S FINAL DECISION ON THE CHARGE. THE COMPLAINANT TOOK THE
POSITION AT THE HEARING AND IN ITS SUPPORTING BRIEF THAT AN UNFAIR LABOR
PRACTICE CHARGE WHICH HAS BEEN ALLOWED TO REMAIN DORMANT FOR MORE THAN
60 DAYS WITHOUT THE FILING OF A COMPLAINT AFTER A FINAL DECISION MAY BE
REFILED BY ANOTHER PARTY AND THAT A SUBSEQUENT COMPLAINT IS TIMELY IF
FILED WITHIN 60 DAYS FOLLOWING THE FINAL DECISION ON THE REFILED CHARGE.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE RESPONDENT'S MOTION
TO DISMISS BE GRANTED. /2/ IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION, I NOTE PARTICULARLY HIS CONCLUSIONS THAT THE AFGE ACTED
AS THE AGENT FOR THE COMPLAINANT WHEN IT FILED A CHARGE ON BEHALF OF THE
COMPLAINANT ON NOVEMBER 22, 1972, AND THAT, BY VIRTUE OF THE
COMPLAINANT'S DESIGNATION OF THE AFGE AS HIS AGENT, THE COMPLAINANT, IN
LEGAL EFFECT, WAS THE CHARGING PARTY. /3/ IN MY VIEW, THE LAW OF AGENCY
IS WELL SETTLED THAT AN AGENT, ACTING WITHIN THE SCOPE OF HIS AUTHORITY,
BINDS HIS PRINCIPAL. THUS, WHEN THE AFGE FILED THE CHARGE ON NOVEMBER
22, 1972, IT WAS ACTING AS AGENT FOR THE COMPLAINANT, AND THAT CHARGE
WAS, IN EFFECT, THE COMPLAINANT'S CHARGE. AND WHEN THE AFGE FAILED TO
FILE A COMPLAINT WITHIN THE PRESCRIBED 60 DAY PERIOD, SUBSEQUENT TO THE
SERVICE OF THE RESPONDENT'S FINAL DECISION OF DECEMBER 15, 1972, IN
ACCORDANCE WITH THE REQUIREMENTS OF SECTION 203.2(B)(2) OF THE ASSISTANT
SECRETARY'S REGULATIONS, THE COMPLAINANT, IN EFFECT, FAILED TO FILE HIS
COMPLAINT IN A TIMELY FASHION. ACCORDINGLY, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, I FIND THE COMPLAINT HEREIN TO BE FILED
UNTIMELY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4202 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 30, 1974
/1/ SECTION 203.2(B)(2) PROVIDES, "IF A WRITTEN DECISION EXPRESSLY
DESIGNATED AS A FINAL DECISION ON THE CHARGE IS SERVED BY THE RESPONDENT
ON THE CHARGING PARTY, THAT PARTY MAY FILE THE COMPLAINT IMMEDIATELY BUT
IN NO EVENT LATER THAN SIXTY (60) DAYS FROM THE DATE OF SUCH SERVICE."
/2/ CONTRARY TO THE ARGUMENT ADVANCED BY THE COMPLAINANT IN HIS
BRIEF, I FIND THAT THE ADMINISTRATIVE LAW JUDGE DID NOT EXCEED HIS
AUTHORITY BY DISMISSING THE COMPLAINT. AS EVIDENCED BY THE ISSUANCE OF
THE INSTANT REPORT AND RECOMMENDATION, HE MERELY RECOMMENDED DISMISSAL
AS PRESCRIBED BY SECTION 203.22 OF THE ASSISTANT SECRETARY'S
REGULATIONS.
/3/ IN THIS REGARD, IT WAS NOTED ADDITIONALLY THAT THE RECORD
ESTABLISHES THAT THE COMPLAINANT EXECUTED A POWER OF ATTORNEY
AUTHORIZING THE AFGE TO ACT ON HIS BEHALF IN ALL MATTERS COINCIDENT TO
HIS CLAIM.
IN THE MATTER OF
BUREAU OF RECLAMATION
BOULDER CANYON PROJECT OFFICE
BOULDER CITY, NEVADA,
AND
STEVE SYLVANIE,
AN INDIVIDUAL,
BOULDER CITY, NEVADA,
ROBERT D. CONOVER, ESQUIRE
OFFICE OF THE FIELD SOLICITOR
U.S. DEPARTMENT OF THE INTERIOR
3610 CENTRAL AVENUE
SUITE 104
RIVERSIDE, CALIFORNIA 92506
DOLPH DAVID SAND, ESQUIRE
STAFF COUNSEL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491. AT THE COMMENCEMENT OF
THE HEARING, RESPONDENT MOVED THAT THE COMPLAINT BE DISMISSED. THE
ISSUE PRESENTED WAS NARROW AND THE FACTS ARE NOT IN DISPUTE. THE SOLE
ISSUE, AS FRAMED BY RESPONDENT AND AGREED TO BY COMPLAINANT, IS WHETHER
THE COMPLAINT HEREIN WAS TIMELY WHERE A CHARGE WAS FILED ON BEHALF OF
PRESENT COMPLAINANT BY LOCAL 1978, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (HEREINAFTER AFGE) ON NOVEMBER 22, 1972; A FINAL DECISION ON
THE CHARGE WAS ISSUED ON DECEMBER 15, 1972; NO COMPLAINT WAS FILED
WITHIN 60 DAYS FROM THE DATE OF SERVICE OF THE FINAL DECISION; AND SOME
96 DAYS AFTER THE DATE OF SERVICE OF THE FINAL DECISION, COMPLAINANT
FILED, IN HIS OWN NAME, THE SAME CHARGE, UPON WHICH THE COMPLAINT HEREIN
WAS FILED ON, OR ABOUT, MAY 16, 1973 (ASS'T. SEC. EXH. 1(A)) SEPTEMBER
27, 1973 (ASS'T. SEC. EXH. 1(B)).
COMPLAINANT WAS EMPLOYED ON, OR ABOUT, JANUARY 4, 1972, AS AN EXEMPT
JANITOR I, SUBJECT TO COMPLETION OF A ONE YEAR PROBATIONARY PERIOD (TR.
6), AND, EFFECTIVE JUNE 11, 1972, WAS GIVEN A CONVERSION TO CAREER
CONDITIONAL APPOINTMENT AS A JANITOR (TR. 7). ON OCTOBER 27, 1972, AS
PART OF ITS EVALUATION PROCESS, RESPONDENT ADVISED COMPLAINANT THAT HIS
WORK PERFORMANCE WAS UNSATISFACTORY AND BECAUSE OF HIS UNSATISFACTORY
WORK PERFORMANCE HE WOULD NOT BE RETAINED AFTER NOVEMBER 3, 1972 (TR.
8-9).
ON NOVEMBER 22, 1972, AFGE FILED AN UNFAIR LABOR PRACTICE CHARGE ON
BEHALF OF COMPLAINANT (TR. 8, 11) ALLEGING THAT RESPONDENT HAD VIOLATED
SECTION 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491. ACCOMPANYING THE
CHARGE WAS A POWER OF ATTORNEY SIGNED BY COMPLAINANT AND DATED NOVEMBER
15, 1972 (TR. 8). IT WAS CONCEDED THAT AFGE WAS AUTHORIZED TO REPRESENT
COMPLAINANT; AND THAT AFGE FILED THE CHARGE ON HIS BEHALF ALLEGING
DISCRIMINATION IN HIS DISCHARGE (TR. 11). ON DECEMBER 15, 1972,
RESPONDENT ISSUED ITS FINAL DECISION. AFGE DID NOT FILE A COMPLAINT
WITHIN 60 DAYS FROM THE SERVICE OF RESPONDENT'S FINAL DECISION (TR. 8,
10, 11, 12, 15) FOR "MATTERS KNOWN TO THE LOCAL" (TR. 10) DID NOT NOT
WISH TO PURSUE THE MATTER (TR. 11); BUT DID NOT REFUSE TO FILE A
COMPLAINT ON BEHALF OF COMPLAINANT (TR. 11-12). AFGE ALSO STATED THAT
IT COULD HAVE WITHDRAWN BUT DID NOT ELECT TO DO SO AND ASSERTED THAT IT
WAS NOT REQUIRED TO DO SO.
ON OR ABOUT MARCH 27, 1973, COMPLAINANT, IN HIS OWN NAME, FILED A
CHARGE ALLEGING THE SAME GROUNDS FOR THE SAME ASSERTED DISCRIMINATION
AND ASSERTING VIOLATION BY RESPONDENT OF SAME PROVISIONS OF EXECUTIVE
ORDER 11491 /1/ AS SET FORTH IN THE CHARGE FILED ON COMPLAINANT'S BEHALF
BY AFGE ON NOVEMBER 22, 1972. IT WAS STIPULATED BY THE PARTIES THAT THE
TWO CHARGES WERE IDENTICAL IN SUBSTANCE (TR. 16). THE COMPLAINT (ASS'T.
SEC. EXH. 1(A)) AND AN AMENDED COMPLAINT (ASS'T. SEC. EXH. 1(B)) WERE
SIGNED BY MR. GERALD W. MAY, PRESIDENT OF AFGE LOCAL 1978-NOT BY
COMPLAINANT-AND COMPLAINANT WAS REPRESENTED AT THE HEARING BY DOLPH
DAVID SAND, ESQUIRE, STAFF COUNSEL, AFGE.
PURSUANT TO THE STIPULATION OF THE PARTIES, THE SAME UNFAIR LABOR
PRACTICE CHARGE WAS FILED BY AFGE ON BEHALF OF COMPLAINANT, ON NOVEMBER
22, 1972, AS WAS FILED BY COMPLAINANT ON MARCH 27, 1973. A FINAL
DECISION WAS ISSUED BY RESPONDENT ON THE AFGE CHARGE ON DECEMBER 15,
1972, AND NO COMPLAINT WAS FILED WITHIN 60 DAYS AFTER SERVICE THEREOF AS
PROVIDED IN SECTION 203.2(2) AND (3) OF THE REGULATIONS. COMPLAINANT'S
POSITION, QUITE SIMPLY, IS THAT THE SAME UNFAIR LABOR PRACTICE CHARGE
MAY BE REFILED AFTER A FINAL DECISION AND A COMPLAINT IS TIMELY IF FILED
WITHIN 60 DAYS AFTER THE LAST FINAL DECISION. STATED OTHERWISE,
COMPLAINANT ASSERTS THAT EACH TIME THE SAME UNFAIR LABOR PRACTICE CHARGE
IS FILED BY A DIFFERENT PARTY, THAT PARTY HAS 60 DAYS AFTER FINAL
DECISION TO FILE A COMPLAINT (TR. 10, 11, 15) AND THAT THE ONLY
LIMITATION IN SECTION 203.2 ON THE SUCCESSIVE FILING OF THE SAME UNFAIR
LABOR PRACTICE CHARGE IN THE NAME OF DIFFERENT PERSONS IS THE LIMITATION
SET FORTH IN SECTION 203.2(2) WHICH IMPOSES A SIX MONTH TIME LIMITATION
ON THE FILING OF A CHARGE FROM THE DATE OF OCCURRENCE OF THE ALLEGED
UNFAIR LABOR PRACTICE.
COMPLAINANT'S POSITION IS UNTENABLE. AT THE OUTSET, AFGE ACTED AS
AGENT FOR COMPLAINANT AND FILED A CHARGE ON COMPLAINANT'S BEHALF ON
NOVEMBER 22, 1972. CONSEQUENTLY, COMPLAINANT WAS, IN LEGAL EFFECT, THE
CHARGING PARTY, BY VIRTUE OF HIS DESIGNATION OF AFGE AS HIS AGENT; AND
AFGE BY FILING A CHARGE ON BEHALF OF COMPLAINANT ACTED VICARIOUSLY IN
COMPLAINANT'S STEAD AS HIS AUTHORIZED AGENT. MOREOVER, SECTION 203.2,
BY ITS TERMS, GOVERNS EACH "UNFAIR LABOR PRACTICE". FOR EXAMPLE,
SECTION 203.2(A)(3) SPECIFICALLY REFERS, TO:
". . . THE FACTS CONSTITUTING THE UNFAIR LABOR PRACTICE . . ."
SECTION 203.2(A)(4), LIKEWISE, REFERS TO
" . . . THE ALLEGED UNFAIR LABOR PRACTICE . . ."
WHERE, AS HERE, THERE IS A SINGLE ALLEGED UNFAIR LABOR PRACTICE, AS
THE PARTIES HAVE STIPULATED, THE PROVISIONS OF SECTION 203.2(B)(2) AND
(3) CONTROL THE TIMELINESS OF A COMPLAINT AND THE PERIOD ALLOWED RUNS
FROM THE DATE OF SERVICE OF THE FIRST FINAL DECISION ON THE UNFAIR LABOR
PRACTICE CHARGE. IN THIS CASE THE PERIOD RAN FROM THE DATE OF SERVICE
OF THE FIRST FINAL DECISION ON THE UNFAIR LABOR PRACTICE CHARGE. IN
THIS CASE THE PERIOD RAN FROM THE DATE OF SERVICE OF THE FINAL DECISION
OF RESPONDENT OF DECEMBER 15, 1972. THE REFILING OF THE SAME CHARGE, ON
OR ABOUT MARCH 27, 1973, IN THE NAME OF COMPLAINANT RATHER THAN IN THE
NAME OF AFGE, WAS WITHOUT EFFECT AS TO AVOIDANCE OF THE LIMITATION SET
FORTH IN SECTION 203.2(B)(2) AND (3). AS THE REGULATIONS REQUIRE:
". . . A COMPLAINT . . . IN NO EVENT LATER THAN SIXTY (60) DAYS FROM
THE DATE OF SUCH
SERVICE." (SECTION 203.2(B)(2)).
"A COMPLAINT MUST BE FILED WITHIN NINE (9) MONTHS OF THE OCCURRANCE
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." SECTION 203.2(B)(3) AND NO COMPLAINT WAS FILED WITHIN 60 DAYS
FROM THE DATE OF SERVICE OF RESPONDENT'S WRITTEN FINAL DECISION OF
DECEMBER 15, 1973, THE COMPLAINT FILED ON MAY 16, 1973, AND AMENDED ON
SEPTEMBER 27, 1973, WAS NOT TIMELY. /2/ THE DECISION OF RESPONDENT ON
THE ALLEGED UNFAIR LABOR PRACTICE CHARGE BECAME FINAL WHEN NO COMPLAINT
WAS FILED WITHIN 60 DAYS AFTER SERVICE THEREOF AND THE DECISION ON THE
CHARGE OF NOVEMBER 27, 1972, IS RES ADJUDICATA AS TO THE CHARGE OF MARCH
27, 1973, WHICH, AS STIPULATED, INVOLVED THE SAME CAUSE OF ACTION.
THAT RESPONDENT'S MOTION TO DISMISS THE COMPLAINT HEREIN AS UNTIMELY
FILED BE GRANTED.
DATED JANUARY 25, 1974
WASHINGTON, D.C.
/1/ IT IS TRUE THAT A SECTION 19(A)(4) VIOLATION WAS ASSERTED IN THE
CHARGE OF MARCH 27, 1973, AND IN THE COMPLAINT FILED ON OR ABOUT MAY 16,
1973 (ASS'T. SEC. EXH. 1(A)); HOWEVER, THE 19(A)(4) ALLEGATION WAS
DELETED IN THE AMENDED COMPLAINT FILED ON OR ABOUT SEPTEMBER 27, 1973
(ASS'T. SEC. EXH. 1(B)) AND UNDER THE ADMITTED FACTS NO BASIS FOR A
19(A)(4) VIOLATION EXISTED WHICH WAS CONCEDED BY COMPLAINANT BY
STIPULATION (TR. 16).
/2/ THE COMPLETE ANOMALY OF THE RESULT URGED BY COMPLAINANT IS
FURTHER EVIDENT FROM THE FACTS HERE INVOLVED. AFGE FILED A CHARGE ON
NOVEMBER 22, 1972, ON BEHALF OF COMPLAINANT. RESPONDENT'S FINAL
DECISION ON THE ALLEGED UNFAIR LABOR PRACTICE ISSUED DECEMBER 15, 1972.
BY DELIBERATE ACTION NO COMPLAINT WAS FILED WITHIN 60 DAYS AFTER SERVICE
OF THE FINAL DECISION. ON MARCH 27, 1973, THE SAME UNFAIR LABOR
PRACTICE CHARGE WAS FILED IN THE NAME OF COMPLAINANT AND RESPONDENT ON
APRIL 2, 1973, RESPONDED THAT THE CHARGE WAS THE SAME AS MADE BY AFGE ON
BEHALF OF COMPLAINANT ON NOVEMBER 22, 1972, AND ENCLOSED A COPY OF ITS
FINAL DECISION OF DECEMBER 15, 1972. ON MAY 16, 1973, A COMPLAINT WAS
FILED. SIGNIFICANTLY, THE COMPLAINT WAS SIGNED BY MR. GERALD W. MAY,
PRESIDENT OF AFGE APPEARED ON BEHALF OF COMPLAINANT. IF COMPLAINANT'S
POSITION WERE CORRECT, AFGE WOULD ACCOMPLISH BY INDIRECTION WHAT IT
CONCEDES IT COULD NOT DO DIRECTLY, NAMELY TO FILE A COMPLAINT AFTER
EXPIRATION OF THE TIME ALLOWED BY SECTION 203.2(B)(2) AND (3).
IT MUST BE EMPHASIZED THAT THIS CASE INVOLVES A SINGLE UNFAIR LABOR
PRACTICE; NOT DIFFERENT UNFAIR LABOR PRACTICES ARISING OUT OF THE SAME
FACTUAL ALLEGATIONS.
4 A/SLMR 379; P. 250; CASE NO. 71-2818; APRIL 30, 1974.
AIR TRAFFIC CONTROL,
FEDERAL AVIATION ADMINISTRATION,
ANCHORAGE, ALASKA
A/SLMR NO. 379
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, ALASKA
REGION, ANCHORAGE, ALASKA (COMPLAINANT) ALLEGING THAT THE RESPONDENT
ACTIVITY VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY ITS
ASSIGNMENT, WITHOUT CONSULTATION WITH THE COMPLAINANT, OF A GS-5 AIR
TRAFFIC CONTROL TRAINEE TO FILL TEMPORARILY A GS-9 JOURNEYMAN POSITION
AT FAREWELL FLIGHT SERVICE STATION, FAREWELL, ALASKA. THE COMPLAINANT
ALLEGED THAT IT SHOULD HAVE RECEIVED NOTIFICATION AT THE REGIONAL LEVEL
OF THE DECISION TO MAKE SUCH AN ASSIGNMENT AND SHOULD HAVE BEEN AFFORDED
THE OPPORTUNITY TO CONSULT WITH THE RESPONDENT AT THAT LEVEL. THE
RESPONDENT ASSERTED THAT IT HAD NO OBLIGATION TO MEET AND CONFER ON THE
ASSIGNMENT ITSELF, AND THAT, IN ANY EVENT, IT FULFILLED ANY DUTY OWED IN
THIS REGARD BECAUSE THE FACILITY SUPERVISOR AT MCGRATH FLIGHT SERVICE
STATION, WHICH SERVICES THE FAREWELL FACILITY, DISCUSSED THE TEMPORARY
ASSIGNMENT OF THE GS-5 TRAINEE TO THE FAREWELL POST WITH THE MCGRATH
FACILITY REPRESENTATIVE OF THE COMPLAINANT PRIOR TO MAKING THE
ASSIGNMENT.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED. IN THIS CONNECTION, HE CONCLUDED THAT THE DECISION TO MAKE
THE TEMPORARY ASSIGNMENT FELL WITHIN THE RESERVED RIGHTS OF MANAGEMENT
AND THAT UNDER SECTION 11(B) AND SECTION 12 OF THE ORDER THE RESPONDENT
WAS NOT OBLIGATED TO CONFER OR CONSULT WITH THE COMPLAINANT ABOUT SUCH A
DECISION, ALTHOUGH THERE WAS AN OBLIGATION ON THE PART OF THE RESPONDENT
TO MEET AND CONFER REGARDING THE PROCEDURES USED IN TEMPORARILY FILLING
THE POST AND REGARDING THE IMPACT OF THE TEMPORARY ASSIGNMENT. THE
ADMINISTRATIVE LAW JUDGE FOUND THAT NO REFUSAL TO MEET AND CONFER
REGARDING THE IMPACT OF THE TEMPORARY STAFFING ASSIGNMENT HAD BEEN
ESTABLISHED BECAUSE THE COMPLAINANT, THROUGH ITS FACILITY
REPRESENTATIVE, WAS TIMELY NOTIFIED OF THE STAFFING PLAN. MOREOVER, HE
NOTED THAT THE COMPLAINANT HAD NEVER REQUESTED BARGAINING ON IMPACT
UNTIL AFTER THE STAFFING HAD BEEN ACCOMPLISHED AND THAT THE EVIDENCE DID
NOT ESTABLISH THERE WAS A REFUSAL TO MEET AND CONFER ON IMPACT AT A
MEETING HELD AT THE REGIONAL LEVEL SUBSEQUENT TO THE STAFFING OF THE
FAREWELL POST. THE ADMINISTRATIVE LAW JUDGE CONCLUDED, ALSO, THAT THE
RESPONDENT WAS RELIEVED OF ITS OBLIGATION TO MEET AND CONFER ON THE
PROCEDURES USED IN TEMPORARILY FILLING THE FAREWELL POST BECAUSE OF THE
COMPLAINANT'S FAILURE TO REQUEST BARGAINING IN THIS REGARD AFTER BEING
TIMELY NOTIFIED THROUGH ITS FACILITY REPRESENTATIVE OF THE PROPOSED
ACTION. FURTHER, HE FOUND THAT EVEN IF THE RESPONDENT WAS NOT RELIEVED
OF ITS OBLIGATION TO MEET AND CONFER ON THE PROCEDURES, IT DID, IN FACT,
MEET AT THE REGIONAL LEVEL WITH THE COMPLAINANT.
NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE AND ORDERED THAT THE COMPLAINT BE DISMISSED IN
ITS ENTIRETY.
AIR TRAFFIC CONTROL,
FEDERAL AVIATION ADMINISTRATION,
ANCHORAGE, ALASKA
AND
NATIONAL ASSOCIATION OF AIR
TRAFFIC SPECIALISTS
ALASKA REGION, ANCHORAGE, ALASKA
ON FEBRUARY 28, 1974, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW 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. 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 PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY
ADOPT THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ADMINSTRATIVE
LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 71-2818 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 30, 1974
IN THE MATTER OF
AIR TRAFFIC CONTROL
FEDERAL AVIATION ADMINISTRATION
ANCHORAGE, ALASKA
AND
NATIONAL ASSOCIATION OF AIR
TRAFFIC SPECIALISTS, ALASKA REGION
ANCHORAGE, ALASKA,
GEORGE G. WILSON
AIR TRAFFIC CONTROL
FEDERAL AVIATION ADMINISTRATION
632-6TH AVENUE
ANCHORAGE, ALASKA 99502
RICHARD P. KAUFFMAN
BOX 4101, STAR ROUTE A
ANCHORAGE, ALASKA 99502
AND
MARSHALL E. DANBY
BOX 433
SOLDOTNA, ALASKA 99669
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING AROSE UPON THE TIMELY FILING OF AN UNFAIR LABOR
PRACTICE COMPLAINT THAT WAS AMENDED ON NOVEMBER 29, 1973, BY THE
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS, ALASKA REGION,
ANCHORAGE, ALASKA (HEREINAFTER REFERRED TO AS COMPLAINANT AND/OR UNION)
AGAINST AIR TRAFFIC CONTROL, FEDERAL AVIATION ADMINISTRATION
(HEREINAFTER REFERRED TO AS THE RESPONDENT) ALLEGING THAT THE RESPONDENT
ENGAGED IN CERTAIN CONDUCT VIOLATIVE OF SECTIONS 19(A)(1) AND (6) OF THE
EXECUTIVE ORDER 11491 (HEREINAFTER CALLED THE ORDER). ESSENTIALLY THE
COMPLAINT, AS AMENDED, CHARGES THAT RESPONDENT FAILED TO CONSULT WITH
THE COMPLAINANT IN COMPLIANCE WITH SECTION 10, SUBSECTION (E) OF THE
ORDER WHEN OR OR ABOUT JULY 9, 1973, IT DETAILED STEVE PHILLIPS, A GS-5
AIR TRAFFIC CONTROL TRAINEE INTO AN AIR TRAFFIC CONTROL POSITION AT
FAREWELL FLIGHT SERVICE STATION, FAREWELL, ALASKA, THAT WAS APPROVED AND
STAFFED AS A GS-9 2152 AIR TRAFFIC CONTROL SPECIALIST, AND THAT SUCH
FAILURE AND REFUSAL TO CONSULT ADDITIONALLY VIOLATED COMPLAINANT'S
RIGHTS UNDER SECTION 19(A)(1) OF THE ORDER. IT WAS ALSO ALLEGED THAT
RESPONDENT DID NOT PROVIDE COMPLAINANT AN OPPORTUNITY TO COMMENT ON THE
PROPOSED SUBSTANTIVE CHANGES IN PERSONNEL POLICIES AFFECTING ITS
EMPLOYEES BEFORE THEY WERE PUT INTO EFFECT.
A HEARING WAS HELD IN THE ABOVE-CAPTIONED MATTER ON JANUARY 15 AND
16, 1974, IN ANCHORAGE, ALASKA. ALL PARTIES WERE REPRESENTED AND
THROUGH THEIR REPRESENTATIVES 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 HEARD AND BRIEFS
SUBMITTED 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, CONCLUSION AND
RECOMMENDATION:
PRIOR TO MAY 2, 1973, KEITH CALDWELL WAS A GS-9 AIR TRAFFIC CONTROL
SPECIALIST EMPLOYED BY RESPONDENT AT ITS ONE-MAN FAREWELL, ALASKA FLIGHT
SERVICE STATION. THE PRINCIPAL FUNCTION OF FLIGHT SERVICE STATIONS IS
TO PROVIDE FLIGHT ASSISTANCE TO CARRIER, GENERAL AVIATION, STUDENT AND
MILITARY PILOTS. STATIONS ARE LOCATED ALONG THE AIRWAYS, AT AIRPORTS OR
LANDING AREAS AND AT OTHER LOCATIONS NECESSARY TO PROVIDE ASSISTANCE TO
PILOTS IN FLIGHT. THE FAREWELL STATION IS ONE OF THREE ONE-MAN STATIONS
IN ALASKA WHERE THERE IS AN AIR TRAFFIC CONTROL SPECIALIST TO PROVIDE
SUCH INFORMATION OR ASSISTANCE. FAREWELL IS STAFFED AND OPERATED BY THE
MCGRATH FLIGHT SERVICE STATION.
ON MAY 2, 1973, CALDWELL WAS SELECTED FOR PROMOTION FOR THE
ANCHORAGE, ALASKA, FLIGHT SERVICE STATION AS A GS-10. HIS TRANSFER WAS
DELAYED UNTIL JULY 9, 1973, TO PERMIT RECRUITMENT FOR HIS REPLACEMENT AT
FAREWELL WITHOUT JEOPARDIZING HIS PROMOTION.
RICHARD E. FORSGREN, RESPONDENT'S FACILITY CHIEF FOR THE MCGRATH AND
FAREWELL FLIGHT SERVICE STATIONS TESTIFIED IN SUBSTANCE THAT WITHIN TWO
OR THREE DAYS AFTER MAY 2, 1973, HE TRANSMITTED A REGION-WIDE MESSAGE
REQUESTING IN-GRADE/DOWNDRAGE CANDIDATES TO FILL THE FLIGHT SERVICE
STATION GS-9 VACANCY AT FAREWELL. A TENTATIVE CLOSURE OF JUNE 2, 1973,
WAS SET. WHEN NO RESPONSE WAS RECEIVED, A NATION-WIDE FAA BLANKET BID
TO FILL THE VACANCY WAS IMMEDIATELY MADE. THE ANCHORAGE FLIGHT SERVICE
STATION WAS CONTACTED TO ASCERTAIN IF IT HAD ANY AIR TRAFFIC CONTROL
SPECIALISTS THAT IT COULD DETAIL FOR TEMPORARY DUTY AT FAREWELL BUT NONE
WERE REPORTED AVAILABLE. ALSO DURING MAY AND EARLY JUNE 1973, THE FIVE
AIR TRAFFIC CONTROL SPECIALISTS AND A GS-5 TRAINEE AT MCGRATH WERE
INDIVIDUALLY CONTACTED TO ASCERTAIN IF ANY OF THEM WOULD VOLUNTEER FOR
THE ASSIGNMENT AT FAREWELL. ONE OF THE SPECIALISTS CONTACTED AT MCGRATH
WAS DAVID A. BROWN, THE FACILITY REPRESENTATIVE OF COMPLAINANT UNION.
GS-TRAINEE STEVEN PHILLIPS WAS THE ONLY ONE WHO INDICATED A WILLINGNESS
TO GO TO FAREWELL. WHILE AWAITING THE OUTCOME OF RECRUITMENT
ADVERTISING TO FILL THE VACANCY, TRAINEE PHILLIPS ON OR ABOUT MAY 20,
1973, WAS PERMITTED TO BEGIN STANDING A PRE-FLIGHT WATCH AT MCGRATH. HE
DID THE DUTIES THAT HE WOULD LATER DO AT FAREWELL IN THE EVENT A GS-9
REPLACEMENT COULD NOT BE SECURED TO FILL THE POSITION. THE TEMPORARY
POSITION WAS REDESIGNED TO OMIT CERTAIN FUNCTIONS INCLUDING THE OMISSION
OF AIRPORT ADVISORY SERVICE FOR THE IN-FLIGHT PORTION OF THE WATCH.
THE RESPONDENT'S FACILITY CHIEF FOR MCGRATH AND FAREWELL FLIGHT
SERVICE STATIONS STATED:
"FAREWELL, . . . IS A LITTLE BIT NON-ESSENTIAL TO THE TOTAL AIR
TRAFFIC NETWORK BECAUSE IT
JUST ISN'T USED THAT MUCH FOR AIR TRAFFIC. BUT IT IS VERY ESSENTIAL
TO US FROM A WEATHER
OBSERVATION STANDPOINT. I BELIEVE IT IS OUR SECOND MOST IMPORTANT
WEATHER OBSERVATION POINT."
RECRUITMENT EFFORTS TO FILL THE VACANCY CREATED BY CALDWELL'S
IMPENDING PROMOTION AND TRANSFER WERE MADE MORE DIFFICULT DUE TO A
RATHER TIGHT AUSTERITY PROGRAM OCCASIONED BY: (1) PAST CLOSING OF THE
TRAINING ACADEMY FOR TRAINING SPECIALISTS; (2) HIRING WAS FROZEN; (3)
ATTRITION WAS TAKING ITS TOLL AND THERE WAS A SHORTAGE OF QUALIFIED
PEOPLE REGION-WIDE AND NATION-WIDE; (4) THERE WERE NO OVERTIME FUNDS
AVAILABLE FOR STAFFING; AND, (5) STAFFING OF THE ONE-MAN STATIONS SUCH
AS FAREWELL WAS ON A VOLUNTARY BASIS AND THERE WERE NO GS-9 VOLUNTEERS
FOR THIS REMOTE STATION. TOO, IT WAS THE BEGINNING OF THE SUMMER MONTHS
WHEN THE STATIONS BEGAN GETTING ABOUT FIFTY PERCENT OF THEIR YEARLY
TRAFFIC DURING A FOUR-MONTH PERIOD. THE RECRUITMENT EFFORTS WERE
UNSUCCESSFUL AND IN EARLY JULY GS-5 TRAINEE STEVE PHILLIPS WAS ORALLY
BRIEFED ON HIS DUTIES AND DIRECTED TO REPORT FOR DUTY AT FAREWELL ON
JULY 9, 1973. THE LETTER ISSUED JULY 10, 1973 /1/ BY RESPONDENT'S
FACILITY CHIEF FORSGREN, CONFIRMING PHILLIPS RELIEF ASSIGNMENT AT
FAREWELL FLIGHT SERVICE STATION STATED:
"YOU ARE DIRECTED TO PROCEED TO FAREWELL FSS ON OR ABOUT JULY 9,
1973, VIA CHARTER
AIRCRAFT.
"WE WILL KEEP YOUR TIME AT MCGRATH. . . .
"YOUR ASSIGNMENT WILL CONSIST OF THE FOLLOWING:
YOU WILL STAND A REGULAR WATCH 0745-1545 MONDAY THRU FRIDAY. YOU ARE
CERTIFIED TO OBSERVE
THE WEATHER AND MAKE PILOT WEATHER BRIEFINGS.
"YOU ARE NOT CERTIFIED TO STAND THE IN-FLIGHT PORTION OF THE WATCH
AND WILL NOT PROVIDE
AIRPORT ADVISORY SERVICE. IN-FLIGHT CONTACTS CAN BE ADVISED TO USE
FREQUENCY 122.2MHZ SO
MCGRATH CAN SERVICE THE FLIGHT.
"YOU CAN PROCESS THE MAIL, DO ROUTINE FILING, AND MAINTAIN THE
ACTIVITY RECORD.
"THE FACF WILL BE AVAILABLE FOR CONSULTATION ON THE INTERPHONE SHOULD
ANY PROBLEM ARISE. I
PLAN ON MAKING A SHORT VISIT IN A COUPLE OF WEEKS TO PROVIDE
ASSISTANCE IN ANY AREA NOT
ALREADY COVERED.
"THE DURATION OF THIS ASSIGNMENT IS THIRTY DAYS."
THE TIME WAS LATER EXTENDED BUT THE GS-9 POSITION AND GRADE WAS
REPORTED VACANT FOR ALL INTENTS AND PURPOSES UNTIL THE AGENCY WAS ABLE
TO FILL IT DURING THE LATTER PART OF NOVEMBER 1973. RESPONDENT FORSGREN
ALSO TESTIFIED THAT HE INITIALLY TALKED TO COMPLAINANT'S FACILITY
REPRESENTATIVE DAVID A. BROWN ABOUT THE POSSIBLE USE OF STEVE PHILLIPS
AT FAREWELL IN LATE MAY OR EARLY JUNE 1973 AND LATER HAD TWO MORE TALKS
OR DISCUSSIONS WITH HIM WHEN THE PLAN BECAME MORE FIRMLY CEMENTED. HE
STATED THAT HE KNEW THAT BROWN WAS THE UNION REPRESENTATIVE WHEN HE
TALKED TO HIM BETWEEN MAY 2 AND THE LAST OF JUNE 1973 ABOUT THE RELIEF
ASSIGNMENT DURING LULL OR REST PERIODS WHILE THEY WERE AT WORK.
COMPLAINANT'S FACILITY REPRESENTATIVE BROWN ADMITS THAT RESPONDENT
FORSGREN DID TALK TO HIM ABOUT GETTING A REPLACEMENT AND OF STEVE
PHILLIPS POSSIBLE ASSIGNMENT TO FAREWELL BUT HE DID NOT REGARD THE TALKS
AS BEING OFFICIAL CONSULTATIONS. IT IS NOTEWORTHY THAT THE MCGRATH
STATION HAD A COMPLEMENT OF ONLY SIX AIRCRAFT CONTROL SPECIALISTS AT
THAT TIME AND THAT FAREWELL WAS STAFFED AND OPERATED BY THE MCGRATH
STATION.
DARYL LOGAN, AN EMPLOYEE TRAINING OFFICER AND FORMER REGIONAL
COORDINATOR FOR THE UNION STATED THAT HE LEARNED THE DETAILS OF THE
MATTER FROM DISCUSSION WITH KEITH CALDWELL AND DAVID BROWN ON JULY 12,
1973. HE AND BROWN DECIDED THE MATTER WAS ONE CONSIDERED APPROPRIATE
FOR REGIONAL OR FACILITY CONSULTATION. THEY CONTACTED THE COMPLAINANT'S
REGIONAL DIRECTOR, RICHARD KAUFFMAN AND THEN SOUGHT A MEETING WITH
MANAGEMENT. THE MEETING WAS ARRANGED AND THE FOLLOWING MORNING, JULY
13, 1973, KAUFFMAN AND LOGAN MET WITH JOHN COSTELLO WHO WAS THEN A STAFF
SPECIALIST IN THE AIRSPACE AND PROCEDURE BRANCH OF THE AIR TRAFFIC
DIVISION, AND MR. HUMMEL. AT THAT MEETING MR. COSTELLO REPORTED IN
ANSWER TO A QUESTION THAT WAS RAISED THAT THE AGENCY HAD CONSIDERED ITS
ACTION WITH REGARD TO DETAILING STEVE PHILLIPS TO TEMPORARY DUTY AT
FAREWELL AND FELT THAT IT WAS VALID; ALSO THAT THE FAA HAD NO
OBLIGATION TO CONSULT WITH THE UNION IN THE MATTER.
AT THE SUBSEQUENT HEARING, LOGAN REFERRED TO ONE IMPACT OF THE
ACTIVITY'S DECISION AS BEING FEAR BY OTHER AIR TRAFFIC CONTROL
SPECIALISTS THAT THEY WOULD LOSE THE GRADE STRUCTURE FOR THE POSITION;
ANOTHER WAS THAT THE UNION SHOULD HAVE AN OPPORTUNITY TO EXPRESS ITS
IDEAS BEFORE A CHANGE IN PROCEDURE IS IMPLEMENTED, OTHERWISE, ITS RIGHT
OF CONSULTATION IS PLACED IN JEOPARDY.
AT THE HEARING IN JANUARY 1974 THE COMPLAINANT AND RESPONDENT AGREED
THAT NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS HELD EXCLUSIVE
RECOGNITION TO REPRESENT ALL AIR TRAFFIC CONTROL SPECIALISTS GS-2152
SERIES, /2/ EMPLOYED AT FLIGHT SERVICE STATIONS AND INTERNATIONAL FLIGHT
SERVICE STATIONS FOR THE ALASKA REGION, INCLUDING THE MCGRATH AND
FAREWELL STATIONS.
THE TESTIMONY AND DOCUMENTARY EVIDENCE OR RECORD REVEALS THAT THE
CONTROVERSY HEREIN AROSE FROM THE INCIDENT OCCASIONED BY RESPONDENT'S
RELIEF ASSIGNMENT OF GS-5 TRAINEE STEVE PHILLIPS TO FILL TEMPORARILY,
THE VACANCY CREATED BY THE PROMOTION AND TRANSFER ON JULY 8, 1974 OF
JOURNEYMAN GS-9 KEITH CALDWELL TO THE ANCHORAGE FLIGHT SERVICE STATION.
IN A STATEMENT AS TO ITS POSITION THE COMPLAINANT URGED THAT SINCE
THE GS-9 JOURNEYMAN STATUS OF THE ONE-MAN FLIGHT SERVICE STATION AT
FAREWELL, ALASKA WAS CHANGED BY RESPONDENT TO A NON-JOURNEYMAN STATUS
WITHOUT CONSULTING OR CONFERRING WITH THE COMPLAINANT SUCH CONSTITUTED A
CHANGE IN PERSONNEL POLICY OR PRACTICE AND THE IMPACT RESULTING FROM
SUCH ASSIGNMENT HAD AN EFFECT ON COMPLAINANT'S BARGAINING UNIT
EMPLOYEES. IT WAS FELT THAT THE COMPLAINANT SHOULD HAVE BEEN CONSULTED
ON THE REGIONAL LEVEL BEFORE THE JOB BEING CONSIDERED WAS IMPLEMENTED.
THE RESPONDENT IN ITS POSITION STATEMENT AND ARGUMENT OPINED THAT THE
DECISION TO REDESIGN AND TEMPORARILY STAFF THE JOURNEYMAN POSITION AT
FAREWELL, ALASKA WAS MADE BY THE FACILITY CHIEF AT MCGRATH; THAT THE
ISSUES PRESENTED IN GENERAL DO NOT REQUIRE NEGOTIATION OR CONSULTATION
UNDER SECTIONS 11(B) AND 12(A) OF THE ORDER; EVEN IF REQUIRED, THE
FACILITY CHIEF DID CONSULT WITH THE UNION FACILITY REPRESENTATIVE
CONCERNING THE PROPOSED ACTION; AND THAT STAFFING AND CONSULTATION AT
THE REGIONAL LEVEL WAS NOT NECESSARY OR PROPER AND THE RESPONDENT
COMMITTED NO UNFAIR LABOR PRACTICE. ALSO, THAT PURSUANT TO REQUEST IT
DID MEET WITH REPRESENTATIVES OF THE COMPLAINANT UNION ON JULY 13, 1973.
SECTION 11(A) OF THE ORDER IMPOSES A REQUIREMENT THAT AN AGENCY AND A
LABOR ORGANIZATION, WHICH IS ACCORDED EXCLUSIVE RECOGNITION, MEET AT
REASONABLE TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL
POLICIES AND PRACTICES, AS WELL AS MATTERS AFFECTING WORKING CONDITIONS
OF UNIT EMPLOYEES. THIS DUTY IS EXPECTED OF THE PARTIES TO THE EXTENT
THAT IT IS APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS, POLICIES
SET FORTH IN THE FEDERAL PERSONNEL MANUAL, AGENCY POLICIES AND
REGULATIONS, A NATIONAL AGREEMENT AT A HIGHER LEVEL, AND THE ORDER
ITSELF. IT IS A TWO WAY OBLIGATION BECAUSE SECTIONS 19(A)(6) AND
19(B)(6) DIRECT THAT AGENCY MANAGEMENT AND A LABOR ORGANIZATION SHALL
NOT REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH THE OTHER AS REQUIRED
BY THE ORDER.
THERE ARE CERTAIN LIMITATIONS UPON THE OBLIGATION OF AN AGENCY TO
CONSULT WITH A BARGAINING REPRESENTATIVE. NOT EVERY MATTER IS
BARGAINABLE OR NEGOTIABLE ON THE PART OF THE EMPLOYER, AND EVEN WHEN IT
IS SO DETERMINED, THERE MAY BE INSTANCES WHERE AN ACTIVITY HAS BEEN
RELIEVED OF THE DUTY TO BARGAIN AS PRESCRIBED BY THE ORDER. IN THE
INSTANT CASE, RESPONDENT ADMITS THAT BEGINNING ON JULY 9, 1973, IT
DETAILED GS-5 TRAINEE STEVE PHILLIPS FOR TEMPORARY ASSIGNMENT AND DUTY
AT FAREWELL, ALASKA, TO FILL THE VACANCY CREATED BY THE PROMOTION AND
TRANSFER OF ONE OF ITS JOURNEYMEN AIRCRAFT CONTROL SPECIALISTS.
REGARDLESS OF WHETHER THERE WAS IN FACT CONSULTATION WITH THE UNION
REGARDING THE TEMPORARY DUTY ASSIGNMENT, THE EMPLOYER ASSERTS THAT IT
HAS BEEN EXCUSED FROM DOING SO BY THE ORDER AND ITS ESTABLISHED
PROCEDURES.
A. RESPONDENT'S OBLIGATION TO CONSULT
REGARDING THE RELIEF ASSIGNMENT OF A TRAINEE TO THE FAREWELL POST.
SECTION 11(B) OF THE ORDER PROVIDES THAT THE OBLIGATION TO MEET AND
CONFER DOES NOT INCLUDE MATTERS IN REGARD TO THE ORGANIZATION OF AN
AGENCY, THE NUMBER OF EMPLOYEES, AND THE NUMBERS, TYPES AND GRADES OF
POSITIONS OR EMPLOYEES ASSIGNED TO A UNIT WORK PROJECT, OR TOUR OF DUTY,
THE TECHNOLOGY OF PERFORMING ITS WORK, OR ITS INTERNAL SECURITY
PRACTICES. FURTHER, MANAGEMENT IS ACCORDED THE RIGHT UNDER SECTION
12(B)(2) OF THE ORDER, TO TRANSFER AND ASSIGN EMPLOYEES TO POSITIONS
WITHIN THE AGENCY; UNDER SECTION 12(B)(5) IT HAS THE RIGHT TO DETERMINE
THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH OPERATIONS ARE TO BE
CONDUCTED; AND, UNDER (12(B)(6) TO TAKE WHATEVER ACTIONS MAY BE
NECESSARY TO CARRY OUT THE MISSION OF THE AGENCY IN AN EMERGENCY.
THE RELIEF ASSIGNMENT BY THE AGENCY IN SENDING EMPLOYEE PHILLIPS TO
FAREWELL, ALASKA, FELL WITHIN THE RESERVED RIGHTS OF MANAGEMENT UNDER
THE ORDER. STAFFING IS A MATTER WITHIN THE DISCRETION OF THE EMPLOYER.
I CONCLUDE THAT UNDER SECTION 11(B) AND 12 OF THE ORDER, THE AGENCY WAS
NOT OBLIGED TO CONSULT OR CONFER WITH THE UNION IN REGARD TO THE RELIEF
ASSIGNMENT OF EMPLOYEE PHILLIPS TO FAREWELL, ALASKA. ACCORDINGLY, I
MAKE NO FINDINGS OR CONCLUSIONS AS TO WHETHER RESPONDENT'S MANNER OF
DEALING WITH THE UNION ON THE ASSIGNMENT WOULD IF NOT PRIVILEGED, HAVE
CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
B. OBLIGATION OF RESPONDENT TO CONSULT REGARDING IMPACT OF RELIEF
ASSIGNMENT
THE LANGUAGE IN THE ORDER AND CASE LAW MAKE IT CLEAR THAT AN AGENCY
IS OBLIGED TO BARGAIN AS TO THE IMPACT FLOWING FROM AN ASSIGNMENT OR
REASSIGNMENT OF EMPLOYEES. SECTION 11(B) OF THE ORDER PROVIDES THAT THE
PARTIES ARE NOT PRECLUDED FROM
". . . NEGOTIATING AGREEMENTS PROVIDING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY
AFFECTED BY THE IMPACT OR REALIGNMENT OF WORK FORCES OR TECHNOLOGICAL
CHANGE."
THE FEDERAL LABOR COUNCIL ALSO RECOGNIZED THIS OBLIGATION ON THE PART
OF MANAGEMENT, ASSERTING IN PLUM ISLAND ANIMAL DISEASE LABORATORY,
DEPARTMENT OF AGRICULTURE, GREENPORT, N.Y., FLRC NO. 71A-11 THAT WHILE
THE AGENCY DID NOT HAVE TO CONSULT ON THE ESTABLISHMENT OF TOURS OF DUTY
FOR EMPLOYEES, IT WOULD BE REQUIRED TO BARGAIN REGARDING THE IMPACT OF
SUCH ACTION ON THE EMPLOYEES INVOLVED. /3/ WHILE RECOGNIZING THAT
MANAGEMENT MUST CONSULT AS TO THE IMPACT OF PRIVILEGED DECISIONS, THE
ASSISTANT SECRETARY FOUND NO VIOLATION FOR FAILURE TO SO CONSULT WHERE
THE UNION HAD NOT REQUESTED THAT THE ACTIVITY MEET AND CONFER ON THE
IMPACT OF SUCH DECISION. DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289.
IN THE INSTANT MATTER THE RESPONDENT, IN EARLY MAY 1973, BEGAN
ADVERTISING FAA REGION-WIDE FOR A GS-9 AIRCRAFT CONTROL SPECIALIST AS A
REPLACEMENT FOR THE FAREWELL POST AND WHEN NO RESPONSE WAS RECEIVED, IT
ADVERTISED FAA NATION-WIDE IN EARLY JUNE 1973. MEANWHILE BEGINNING MAY
20, 1973, GS-5 TRAINEE PHILLIPS WAS AUTHORIZED TO BEGIN A PRE-FLIGHT
WATCH AT MCGRATH TO PERFORM THE DUTIES HE MIGHT LATER BE REQUIRED TO DO
AT FAREWELL. THIS WAS A MEASURE DESIGNED TO ASSURE PROPER MANNING OF
THE POST AT FAREWELL IN THE EVENT RECRUITING EFFORTS TO SECURE A GS-9
REPLACEMENT WERE UNSUCCESSFUL. THE ONE-MAN FAREWELL STATION IS OPERATED
AND MANNED WITH PERSONNEL FROM MCGRATH FLIGHT SERVICE STATION. ON AT
LEAST THREE OCCASIONS BETWEEN MAY 2, 1973, AND THE STAFFING OF THE
FAREWELL POST ON JULY 9, 1973, THE UNION'S FACILITY REPRESENTATIVE AT
MCGRATH WAS CONTACTED BY RESPONDENT'S FACILITY REPRESENTATIVE AND
ADVISED AS TO THE RECRUITING EFFORTS, THE DIFFICULTY IN SECURING A
REPLACEMENT AND THE PROBABILITY OF HAVING TO STAFF THE FAREWELL POST
TEMPORARILY WITH A GS-5 TRAINEE. /4/
THE RESPONDENT URGED THAT EVIDENCE PRESENTED BY COMPLAINANT AS TO
IMPACT RESULTING FROM STAFFING THE POST AT FAREWELL WITH A TRAINEE WAS
CONJECTURAL; THAT ACTUALLY, PHILLIPS WAS SATISFIED AND BENEFITED BY THE
ASSIGNMENT AND NO OTHER EMPLOYEES WERE AFFECTED AS THEY REMAINED ON
THEIR SAME JOBS, DOING THE SAME WORK WITHOUT ANY CHANGE OF CONDITIONS.
WHILE THERE IS SOME MERIT TO THE CONTENTION IN THIS PARTICULAR SITUATION
THAT THE MATTERS PRESENTED BY COMPLAINANT WERE CONJECTURAL, IT SHOULD BE
EMPHASIZED THAT JUST BECAUSE IMPACT MAY BE BENEFICIAL TO A PARTY DOES
NOT LESSEN THE OBLIGATION TO CONSULT, CONFER, AND NEGOTIATE IN AN
APPROPRIATE SITUATION. I FIND THAT THE RESPONDENT WAS UNDER AN
OBLIGATION TO MEET, NEGOTIATE, CONSULT, OR CONFER OVER THE IMPACT OF ITS
DECISION TO TEMPORARILY STAFF THE FAREWELL POST WITH A TRAINEE.
HOWEVER, I ALSO FIND THAT THE UNION, THROUGH ITS FACILITY
REPRESENTATIVE, WAS TIMELY NOTIFIED OF RESPONDENT'S PLANS TO STAFF THE
FAREWELL POST WITH A TRAINEE AND THAT IT NEVER REQUESTED TO BARGAIN ON
THE IMPACT IN ANY MANNER UNTIL AFTER THE STAFFING OF THE POST WAS
ACCOMPLISHED. EVEN AFTER THE POST WAS STAFFED, A MEETING WAS HELD
PURSUANT TO COMPLAINANT'S REQUEST ON JULY 13, 1973 TO DISCUSS THE
FAREWELL FLIGHT SERVICE STATION ASSIGNMENT. THIS MEETING WAS AT THE
REGIONAL LEVEL AND TESTIMONY FROM BOTH PARTIES REFER TO IT HAVING LASTED
FOR AT LEAST ONE AND ONE-HALF HOURS. THE ACTIVITY WAS REQUESTED TO
STATE ITS POSITION AND ANSWERED THAT IT WAS NOT OBLIGATED TO CONSULT
REGARDING THE RELIEF ASSIGNMENT OF TRAINEE PHILLIPS. APART FROM CONCERN
EXPRESSED AS TO WHETHER THE GENERAL PUBLIC', RIGHTS WERE BEING
SAFEGUARDED THE RECORD IS NOT CLEAR AS TO AN ISSUE BEING RAISED AS TO
WHETHER THERE WERE ANY EMPLOYEES ADVERSELY AFFECTED BY THE IMPACT,
REALIGNMENT OF WORK FORCES, OR TECHNOLOGICAL CHANGE CAUSED BY THE
FAREWELL ASSIGNMENT. EVEN ASSUMING THE MATTER OF IMPACT WAS
INFERENTIALLY RAISED, I FIND THAT IN THIS CASE, NO REFUSAL TO BARGAIN
HAS BEEN ESTABLISHED. /5/
C. OBLIGATION OF RESPONDENT TO BARGAIN REGARDING PROCEDURE IN
STAFFING THE FAREWELL POST
WHILE THE RESPONDENT HAS PREVIOUSLY BEEN FOUND TO HAVE BEEN
PRIVILEGED TO MAKE THE RELIEF ASSIGNMENT OF THE TRAINEE TO THE
JOURNEYMAN POST AT FAREWELL, THERE IS ALSO FOR CONSIDERATION UNDER THE
ORDER THE PROCEDURE INVOLVED IN EFFECTING THE ASSIGNMENT.
THE FEDERAL LABOR COUNCIL STATED IN VETERANS ADMINISTRATION RESEARCH
HOSPITAL, CHICAGO, ILLINOIS, 71A-31, THAT THE RESERVATION OF
DECISION-MAKING AND ACTION AUTHORITY IS NOT INTENDED TO BAR NEGOTIATION
OF PROCEDURE TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS. /6/ THE
ASSISTANT SECRETARY ENUNCIATED AND APPLIED THIS PRINCIPLE IN DEPARTMENT
OF NAVY, BUREAU OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL,
ILLINOIS, A/SLMR NO. 289; MORE RECENTLY HE ADOPTED A DECISION WITH
FINDINGS THAT THE RESPONDENT ACTIVITY FAILED TO MEET AND CONFER WITH THE
COMPLAINANT CONCERNING PROCEDURES TO BE FOLLOWED IN SELECTING EMPLOYEES
FOR REASSIGNMENT. FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION
FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO.
329.
THE FACTS IN THIS PROCEEDING ARE DISTINGUISHABLE FROM THOSE
HEREINABOVE CITED. APART FROM THE WIDESPREAD FAA ADVERTISING TO SECURE
A JOURNEYMAN AIRCRAFT CONTROL SPECIALIST REPLACEMENT FOR THE FAREWELL,
ALASKA POST THE COMPLAINANT UNION'S FACILITY REPRESENTATIVE WAS SEEN ON
AT LEAST THREE SEPARATE OCCASIONS BETWEEN MAY 2 AND THE LAST OF JUNE
1973 AND ADVISED OF THE SITUATION INCLUDING THE NECESSITY OF USING
TRAINEE STEVE PHILLIPS AS A RELIEF REPLACEMENT IN THE EVENT A JOURNEYMAN
COULD NOT BE RECRUITED. I FIND THAT THE COMPLAINANT UNION WAS NOTIFIED
OF THE INTENDED ACTION BY THE RESPONDENT BEFORE IT MADE THE RELIEF
ASSIGNMENT OF STEVE PHILLIPS TO THE FAREWELL POST ON JULY 9, 1973.
FURTHER, PHILLIPS WAS BEING TRAINED FOR HIS DUTIES AT THE SAME FLIGHT
SERVICE STATION AS THE UNION FACILITY REPRESENTATIVE DAVID BROWN WHO WAS
FULLY AWARE OF HIS INTENDED RELIEF AS A REPLACEMENT FOR JOURNEYMAN
CALDWELL BY REASON OF REPEATED PERSONAL CONTACT AND DISCUSSIONS WITH
RESPONDENT FACILITY CHIEF; ALSO, THERE WAS NO REQUEST TO MEET AND
CONFER REGARDING REPLACEMENT OF CALDWELL BY THE UNION PRIOR TO JULY 9,
1973, WHEN TRAINEE PHILLIPS WAS DETAILED TO RELIEF DUTY AT THE FAREWELL
POST.
IN VIEW OF THE FOREGOING, IT IS EVIDENT UNDER THE FEDERAL LABOR
RELATIONS COUNCIL AND ASSISTANT SECRETARY'S DECISION /7/ THAT GENERALLY
THERE IS AN OBLIGATION TO CONSULT, CONFER AND NEGOTIATE REGARDING THE
PROCEDURES AND IMPACT RESULTING FROM ELIMINATION OF A WORK SHIFT,
REDUCTIONS IN FORCE AND TRANSFERS AND ASSIGNMENTS MADE UNILATERALLY BY
AN ACTIVITY UNLESS THE UNION INVOLVED WAS NOTIFIED OF THE INTENDED ACT
BEFORE THE PLANNED ACTION WAS TAKEN. I FIND THAT THE FAILURE BY THE
COMPLAINANT TO REQUEST THE RESPONDENT TO MEET AND CONFER IN THIS REGARD
AFTER HAVING BEEN TIMELY NOTIFIED OF THE INTENDED ACTION WAS SUCH AS TO
RELIEVE THE EMPLOYER OF ITS OBLIGATION. /8/ EVEN IF NOT RELIEVED, THE
RESPONDENT, PURSUANT TO REQUEST, MET WITH THE COMPLAINANT AT THE
REGIONAL LEVEL ON JULY 13, 1973. IT WAS NOT REQUIRED TO AGREE WITH THE
UNION'S POSITION OR DEMANDS.
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 (6) OF
THE ORDER. /9/
UPON THE BASIS OF THE ABOVE FINDINGS, CONCLUSION AND THE ENTIRE
RECORD, I RECOMMEND THAT THE ASSISTANT SECRETARY DISMISS THE COMPLAINT.
DATED: FEBRUARY 28, 1974
WASHINGTON, D.C.
/1/ RESPONDENT EXHIBIT NO. 1.
/2/ TRANSCRIPT, HEREINAFTER REFERRED TO AS TR, PP 14 AND 17.
/3/ SEE ALSO NAVAL PUBLIC WORKS CENTER, FLRC NO. 71A-56.
/4/ DAVID BROWN WAS EVASIVE IN HIS ANSWERS TO QUESTIONS ON
CROSS-EXAMINATION AND AS TO NEVER HAVING DISCUSSED WITH RESPONDENT'S
FACILITY CHIEF THE MATTER OF FAREWELL OR TRAINEE PHILLIPS GOING TO
FAREWELL. IT WAS UNCONVINCING AND IS DISCREDITED. THE MATTER WAS
POSTED ON BULLETIN BOARDS, WAS PUBLICIZED REGION AND NATION-WIDE, WAS
THE SUBJECT OF AT LEAST THREE DISCUSSIONS WITH HIM BY THE FACILITY CHIEF
AND HE HAD BEEN INVITED WITH OTHERS TO VOLUNTEER FOR THE ASSIGNMENT. HE
ADMITTED THE TALKS BUT PASSED THEM OFF AS DISCUSSIONS BETWEEN A
SUPERVISOR AND EMPLOYEE. SINCE MCGRATH THEN HAD ONLY 6 AIRCRAFT CONTROL
SPECIALISTS, ALL WERE WELL KNOWN TO EACH OTHER; IT IS APPARENT THAT
BROWN'S CHARACTERIZATION OF THE DISCUSSIONS AND REMARKS WERE AN
AFTERTHOUGHT TO SUPPORT A POSITION TAKEN AFTER THE TEMPORARY STAFFING
WAS ACCOMPLISHED.
/5/ SEE PLUM ISLAND ANIMAL DISEASE LABORATORY AND DEPARTMENT OF NAVY,
BUREAU OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL, SUPRA.
/6/ SEE ALSO NAVAL PUBLIC WORKS CENTER, FLRC NO. 71A-56.
/7/ SEE ALSO PUGET SOUND NAVAL SHIPYARD, DEPARTMENT OF THE NAVY,
BREMERTON, WASHINGTON, A/SLMR NO. 332.
/8/ IN MAKING THIS FINDING, I DID NOT SUBSCRIBE TO THE UNION'S
POSITION THAT TRAINEE STEVE PHILLIPS PERFORMED THE SAME DUTIES
PREVIOUSLY PERFORMED BY KEITH CALDWELL BECAUSE THE EVIDENCE SHOWS
CERTAIN FUNCTIONS INCLUDING AIRPORT ADVISORY SERVICE FOR THE IN-FLIGHT
PORTION OF THE WATCH WERE OMITTED. TOO, WHAT CONSTITUTES CONSULTATION
AND WHICH LEVEL IT IS TO BE CONDUCTED DEPENDS ON THE CIRCUMSTANCES OF
THE INDIVIDUAL CASE AND THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES.
NOTHING WAS PRESENTED AT THE HEARING REGARDING THE COLLECTIVE BARGAINING
AGREEMENT TO ESTABLISH THAT CONSULTATION WAS REQUIRED AT THE REGIONAL
LEVEL. THE ONE-MAN FAREWELL STATION WAS STAFFED AND OPERATED BY THE
MCGRATH FLIGHT SERVICE STATION WHICH WAS COMPRISED OF SIX AIRCRAFT
CONTROL SPECIALISTS AND ONE ACTIVITY FACILITY CHIEF. NOTICE WAS GIVEN
TO THE UNION REPRESENTATIVE AT THE FACILITY LEVEL WHERE BOTH THE
TRAINEE, THE AGENCY, THE FACILITY CHIEF, AND UNION REPRESENTATIVE WERE
THEN LOCATED. THE IMPORTANT MATTER CONSIDERED HEREIN, IN THE ABSENCE OF
ANY COLLECTIVE BARGAINING PROVISIONS TO THE CONTRARY, WAS WHETHER THE
UNION, THROUGH ITS REPRESENTATIVE, HAD BEEN PROVIDED SUFFICIENT ADVANCE
INFORMATION BY THE ACTIVITY TO APPRISE IT OF THE INTENDED ACT AND
PROCEDURE BY WHICH IT WAS TO BE ACCOMPLISHED. IN THE INSTANT MATTER THE
INFORMATION AND FORMALITY ARE DEEMED TO HAVE BEEN ADEQUATE. THERE WAS
NO TIMELY REQUEST BY THE UNION TO CONFER OR CONSULT ON A FACILITY OR
REGIONAL LEVEL PRIOR TO POST STAFFING ON JULY 9, 1973.
/9/ SECTION 203.14 OF THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR MANAGEMENT RELATIONS PROVIDES THAT:
"A COMPLAINANT IN ASSERTING A VIOLATION OF THE ORDER SHALL HAVE THE
BURDEN OF PROVING THE
ALLEGATION OF THE COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE."
4 A/SLMR 378; P. 247; CASE NO. 22-4018(RO); APRIL 10, 1974.
DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT
A/SLMR NO. 378
THE PETITIONER, COLUMBIA LODGE 174, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO (IAM), SOUGHT AN ELECTION IN A
UNIT OF ALL NONSUPERVISORY WAGE GRADE EMPLOYEES IN THE BUREAU OF THE
PUBLIC DEBT IN THE WASHINGTON, D.C. METROPOLITAN AREA. THE ACTIVITY
CONTENDED THAT THE PETITIONED FOR UNIT WAS NOT APPROPRIATE BECAUSE THE
CLAIMED WAGE GRADE EMPLOYEES HAD A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST WITH THE GENERAL SCHEDULE EMPLOYEES OF THE ACTIVITY AND COULD
NOT BE SEPARATED. THE ACTIVITY FURTHER CONTENDED THAT THE PETITIONED
FOR UNIT WOULD CONSTITUTE A FRAGMENTED UNIT AND WOULD INTERFERE WITH
EFFECTIVE DEALINGS AND WOULD DISRUPT THE EFFICIENCY OF ITS OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BECAUSE THE CLAIMED
EMPLOYEES LACK A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE
AND DISTINCT FROM OTHER EMPLOYEES OF THE ACTIVITY. IN THIS REGARD, HE
TOOK PARTICULAR NOTE OF THE INTERDEPENDENT NATURE OF THE ACTIVITY'S
OPERATION, THE DAY-TO-DAY WORK CONTACTS OF THE WAGE GRADE EMPLOYEES AND
THE GENERAL SCHEDULE EMPLOYEES AND THE FACT THAT, IN GENERAL, THEY WORK
SIDE BY SIDE IN THE SAME WORK AREAS, OFTEN PERFORMING RELATED AND
OVERLAPPING JOB FUNCTIONS UNDER COMMON SUPERVISION AND HAVING FREQUENT
INTERCHANGE. MOREOVER, HE NOTED THAT BOTH GENERAL SCHEDULE AND WAGE
GRADE EMPLOYEES AT THE ACTIVITY ENJOY THE SAME WORKING CONDITIONS,
PERSONNEL POLICIES AND PROCEDURES, AND ADMINISTRATIVE SERVICES.
AS THE EMPLOYEES IN THE CLAIMED UNIT DID NOT SHARE A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER
EMPLOYEES OF THE ACTIVITY AND AS SUCH A FRAGMENTED UNIT COULD NOT
REASONABLY BE EXPECTED TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS, THE ASSISTANT SECRETARY ORDERED THAT THE PETITION BE
DISMISSED.
DEPARTMENT OF THE TREASURY,
BUREAU OF THE PUBLIC DEBT
AND
COLUMBIA LODGE 174,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER NANCY ANDERSON.
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 OF THE
ACTIVITY AND COLUMBIA LODGE 174, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO, HEREIN CALLED IAM, THE ASSISTANT
SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE IAM SEEKS TO REPRESENT A UNIT OF ALL WAGE GRADE EMPLOYEES IN
THE BUREAU OF THE PUBLIC DEBT IN THE WASHINGTON, D.C. METROPOLITAN AREA,
EXCLUDING ALL MANAGEMENT OFFICIALS, SUPERVISORS, PROFESSIONALS, GUARDS,
AND FEDERAL PERSONNEL WORKERS IN OTHER THAN A PURELY CLERICAL CAPACITY.
IT CONTENDS THAT THE CLAIMED UNIT IS A FUNCTIONAL UNIT AND, AS SUCH, IS
APPROPRIATE BECAUSE THE WAGE GRADE EMPLOYEES HAVE A COMMUNITY OF
INTEREST WHICH IS DIFFERENT FROM THE GENERAL SCHEDULE EMPLOYEES EMPLOYED
BY THE ACTIVITY. ON THE OTHER HAND, THE ACTIVITY TAKES THE POSITION
THAT THE PETITIONED FOR UNIT IS NOT APPROPRIATE BECAUSE THE CLAIMED WAGE
GRADE EMPLOYEES HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
THE GENERAL SCHEDULE EMPLOYEES OF THE ACTIVITY AND CANNOT BE SEPARATED.
THE ACTIVITY FURTHER CONTENDS THAT THE PETITIONED FOR UNIT WOULD
CONSTITUTE A FRAGMENTED UNIT, WOULD INTERFERE WITH EFFECTIVE DEALINGS,
AND WOULD DISRUPT THE EFFICIENCY OF ACTIVITY OPERATIONS.
THE ACTIVITY IS A COMPONENT OF THE DEPARTMENT OF THE TREASURY AND IS
LOCATED IN WASHINGTON, D.C. IT IS RESPONSIBLE FOR, AMONG OTHER THINGS,
THE PREPARATION OF THE DEPARTMENT OF THE TREASURY CIRCULARS OFFERING
PUBLIC DEBT SECURITIES, THE DIRECTION OR HANDLING OF SUBSCRIPTIONS AND
THE MAKING OF ALLOTMENTS, THE FORMULATION OF INSTRUCTIONS AND
REGULATIONS PERTAINING TO EACH SECURITY ISSUE, AND THE ISSUANCE OF THE
SECURITIES. THE ACTIVITY ALSO IS RESPONSIBLE FOR THE FINAL AUDIT AND
CUSTODY OF RETIRING SECURITIES, THE MAINTENANCE OF THE CONTROL ACCOUNTS
COVERING ALL PUBLIC DEBT ISSUES, THE KEEPING OF INDIVIDUAL ACCOUNTS WITH
OWNERS OF REGISTERED SECURITIES AND AUTHORIZING THE ISSUANCE OF CHECKS
IN PAYMENT OF INTEREST THEREON, AND THE HANDLING OF CLAIMS ON ACCOUNT OF
LOST, STOLEN, DESTROYED OR MUTILATED SECURITIES.
THERE ARE FIVE OPERATIONAL DIVISIONS WITHIN THE ACTIVITY, EACH OF
WHICH IS HEADED BY A DIRECTOR. ALL OF THE DIRECTORS REPORT TO THE
ASSISTANT DEPUTY COMMISSIONER WHO IS RESPONSIBLE FOR THE PLANNING,
ORGANIZATION, BUDGETING AND THE OPERATION OF THE FIVE OPERATIONAL
DIVISIONS. THE FIVE OPERATIONAL DIVISIONS ARE: THE DIVISION OF
SECURITIES OPERATIONS, WHICH IS RESPONSIBLE FOR RECEIVING, STORING AND
MAINTAINING STOCKS OF SECURITIES, DELIVERING THEM TO FEDERAL RESERVE
BANKS AND ISSUING AGENTS, PROCESSING CLAIMS RELATING TO THESE
SECURITIES, AND RECEIVING THEM BACK FOR RETIREMENT AND DESTRUCTION; THE
DIVISION OF PUBLIC DEBT ACCOUNTS, WHICH IS RESPONSIBLE FOR MAINTAINING
ACCOUNTING CONTROLS OF DEBT ACTIVITIES, SECURITIES SALES, CASH AND
INTEREST, MAINTAINING INDIVIDUAL ACCOUNTS FOR REGISTERED SECURITIES AND
AUTHORIZING THE ISSUANCE OF INTEREST CHECKS; THE DIVISION OF AUTOMATED
DATA PROCESSING SERVICES, WHICH IS A COMPUTER SERVICE OPERATION
PROCESSING DATA FOR THE OTHER DIVISION OF MANAGEMENT SERVICES, WHICH
PERFORMS VARIOUS "HOUSEKEEPING" SERVICES; AND THE DIVISION OF
MANAGEMENT ANALYSIS, WHICH PREPARES PROJECT STUDIES AND MANUALS
CONCERNING MANAGEMENT IMPROVEMENT PROGRAMS. THERE ARE 607 EMPLOYEES
EMPLOYED BY THE ACTIVITY OF WHOM APPROXIMATELY 581 ARE GENERAL SCHEDULE
EMPLOYEES AND 26 ARE WAGE GRADE EMPLOYEES. /2/
THE EMPLOYEES SOUGHT BY THE INSTANT PETITION ARE EMPLOYED IN TWO OF
THE FIVE OPERATIONAL DIVISIONS OF THE ACTIVITY-- THE DIVISION OF
SECURITIES OPERATIONS AND THE DIVISION OF MANAGEMENT SERVICES. THE
RECORD ESTABLISHES THAT WITHIN THE DIVISION OF SECURITIES OPERATIONS,
WAGE GRADE EMPLOYEES ARE ASSIGNED TO EITHER THE SHIPPING SECTION, THE
VAULT SECTION OF THE UNISSUED BRANCH OR THE VAULT SECTION OF THE RETIRED
SECURITIES BRANCH. THE WAGE GRADE EMPLOYEES ASSIGNED TO THESE SECTIONS
ARE CLASSIFIED AS LABORERS AND ARE RESPONSIBLE FOR THE MOVEMENT OF STOCK
WITHIN THE VAULT, THE MOVING OF INVENTORY FOR SHIPMENT, AND THE PLACING
OF INCOMING SHIPMENTS IN THEIR PROPER PLACES. THE RECORD REVEALS THAT
THESE WAGE GRADE EMPLOYEES WORK CLOSELY WITH THE GENERAL SCHEDULE VAULT
CUSTODIANS AND VAULT CLERKS IN THE VAULT. THUS, WHILE THE LABORERS
PERFORM THE BULK OF THE PHYSICAL MOVEMENT OF STOCK WITHIN THE VAULT,
DURING PERIODS OF HEAVY WORKLOAD, WHEN THERE IS ABSENTEEISM AMONG THE
LABORERS, OR WHEN THE EFFICIENCY OF OPERATIONS DICTATES, GENERAL
SCHEDULE EMPLOYEES, SUCH AS VAULT CLERKS OR VAULT CUSTODIANS, MAY
ACTUALLY MOVE STOCK. MOREOVER, BECAUSE OF A SHORTAGE OF GENERAL
SCHEDULE EMPLOYEES IN THE VAULT SECTION OF THE RETIRED SECURITIES
BRANCH, THE EVIDENCE ESTABLISHES THAT LABORERS HAVE BEEN PERFORMING THE
WORK OF THE GENERAL SCHEDULE VAULT CLERKS AND VAULT CUSTODIANS ON A
DAILY BASIS. ALTHOUGH THERE IS A LABORER FOREMAN IN THE VAULT SECTION
OF THE UNISSUED SECURITIES BRANCH, HE RECEIVES HIS INSTRUCTIONS FROM
EITHER A GENERAL SCHEDULE EMPLOYEE OR GENERAL SCHEDULE SUPERVISOR. THE
LABORERS IN THE OTHER VAULT SECTION ARE SUPERVISED BY A GENERAL SCHEDULE
SUPERVISOR. THE WAGE GRADE LABORERS IN THE SHIPPING SECTION ARE
RESPONSIBLE FOR PACKAGING AND LABELING THE SECURITIES FOR SHIPMENT. THE
EVIDENCE ESTABLISHES THAT THESE LABORERS WORK CLOSELY WITH THEIR GENERAL
SCHEDULE SUPERVISOR AND THE GENERAL SCHEDULE CLERK-TYPIST TO INSURE THAT
ALL PACKAGES COMING FROM THE VAULT SECTION AND BEING SHIPPED OUT CONTAIN
THE PROPER SECURITIES AND ARE PROPERLY PACKAGED.
THE RECORD INDICATES THAT WITHIN THE DIVISION OF MANAGEMENT SERVICES,
WAGE GRADE EMPLOYEES ARE ASSIGNED TO THE BUILDING SERVICES SECTION WHERE
THEY PERFORM FUNCTIONS INVOLVING OFFICE APPLIANCE REPAIR, WAREHOUSING,
VEHICLE OPERATIONS, AND MANUAL LABOR. THE OFFICE APPLIANCE REPAIRMEN
ARE RESPONSIBLE FOR THE REPAIR AND MAINTENANCE OF THE ACTIVITY'S
TYPEWRITERS, ADDING MACHINES AND CALCULATORS. BECAUSE MUCH OF THEIR
REPAIR WORK IS DONE AT THE SITE OF THE EQUIPMENT, THE RECORD REVEALS
THAT THESE WAGE GRADE EMPLOYEES SPEND A GREAT DEAL OF TIME WORKING WITH
OR FOR GENERAL SCHEDULE EMPLOYEES THROUGHOUT THE ACTIVITY.
THE RECORD DISCLOSES THAT THE WAREHOUSEMEN WITHIN THE ACTIVITY'S
WAREHOUSING OPERATION ARE RESPONSIBLE FOR RECEIVING, STORING AND
DISPENSING FORMS AND SUPPLIES. THEY RECEIVE REQUISITIONS FROM EMPLOYEES
WITHIN THE VARIOUS DIVISIONS AND EITHER DELIVER THE FORMS AND SUPPLIES
IN PERSON TO THE EMPLOYEES IN THE DIVISIONS, OR DELIVER THEM TO THE
EMPLOYEES OVER THE COUNTER AT THE WAREHOUSE. THE LABORERS WITHIN THE
WAREHOUSING OPERATION ARE RESPONSIBLE FOR MOVING OR REARRANGING OFFICE
FURNITURE, MOVING HEAVY EQUIPMENT AND ASSISTING THE DESTRUCTION
COMMITTEE IN MOVING PACKAGES FROM THE VAULT TO THE FURNACES. THEIR WORK
TAKES THEM INTO THE VARIOUS OFFICES WITHIN THE ACTIVITY AND, IN THE
NORMAL COURSE OF THEIR DUTIES, THE EVIDENCE ESTABLISHES THAT THEY COME
INTO DIRECT CONTACT WITH OTHER GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES
OF THE ACTIVITY.
THE EVIDENCE ESTABLISHES THAT WORKING CONDITIONS ARE ESSENTIALLY THE
SAME FOR ALL ACTIVITY EMPLOYEES AND THAT THE DIVISION OF PERSONNEL
PROVIDES PERSONNEL SERVICES FOR ALL SUCH EMPLOYEES. WHILE DIFFERENT PAY
SYSTEMS APPLY TO GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES, THE RECORD
DISCLOSES THAT GRIEVANCE AND ADVERSE ACTION APPEAL PROCEDURES ARE COMMON
TO ALL. SIMILARLY, THE SAME FRINGE BENEFITS, MERIT PROMOTION PROGRAM,
INCENTIVE AWARDS PROGRAM, AND CIVIL SERVICE COMMISSION
REDUCTION-IN-FORCE REGULATIONS APPLY TO ALL EMPLOYEES OF THE ACTIVITY.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT A UNIT
LIMITED TO WAGE GRADE EMPLOYEES IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. IN THIS REGARD, PARTICULAR NOTE WAS TAKEN OF THE
INTERDEPENDENT NATURE OF THE ACTIVITY'S OPERATIONS, THE DAY-TO-DAY WORK
CONTACTS OF WAGE GRADE EMPLOYEES AND THE GENERAL SCHEDULE EMPLOYEES, AND
THE FACT THAT, IN GENERAL, THEY WORK SIDE BY SIDE IN THE SAME WORK
AREAS, OFTEN PERFORMING RELATED JOB FUNCTIONS UNDER COMMON SUPERVISION
AND HAVING FREQUENT INTERCHANGE. MOREOVER, NOTE WAS TAKEN OF THE FACT
THAT BOTH GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF THE ACTIVITY
ENJOY THE SAME WORKING CONDITIONS, PERSONNEL POLICIES AND PROCEDURES,
AND ADMINISTRATIVE SERVICES.
ACCORDINGLY, I FIND THAT THE PETITIONED FOR WAGE GRADE EMPLOYEES DO
NOT HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM THE GENERAL SCHEDULE EMPLOYEES OF THE ACTIVITY. FURTHER,
IN MY VIEW, SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. THEREFORE, I SHALL ORDER THAT THE
PETITION HEREIN BE DISMISSED. /3/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 22-4018 (RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 10, 1974
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ THE PARTIES STIPULATED THAT FOUR OF THE WAGE GRADE EMPLOYEES WERE
SUPERVISORS WITHIN THE MEANING OF THE ORDER.
/3/ CF. HOUSING DIVISION, DIRECTORATE OF INDUSTRIAL OPERATIONS,
HEADQUARTERS 9TH INFANTRY DIVISION AND FORT LEWIS, FORT LEWIS,
WASHINGTON, A/SLMR NO. 209; UNITED STATES DEPARTMENT OF AGRICULTURE,
RICHARD B. RUSSELL RESEARCH CENTER, A/SLMR NO. 189; AND DEPARTMENT OF
THE ARMY, MILITARY OCEAN TERMINAL, BAYONNE, NEW JERSEY, A/SLMR NO. 77.
4 A/SLMR 377; P. 245; CASE NO. 51-2589; APRIL 10, 1974.
DEPARTMENT OF THE ARMY,
CAMP MCCOY
SPARTA, WISCONSIN
A/SLMR NO. 377
THIS CASE INVOLVES A PETITION FOR CLARIFICATION OF UNIT FILED BY
LOCAL 1358, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(PETITIONER) IN WHICH IT SEEKS TO INCLUDE ALL APPROPRIATED FUND
EMPLOYEES OF THE FIFTH U.S. ARMY LOCATED AT CAMP MCCOY, WISCONSIN.
SPECIFICALLY, THE PETITIONER, THE INCUMBENT LABOR ORGANIZATION WHICH
REPRESENTS AN ACTIVITY-WIDE UNIT AT CAMP MCCOY, CONTENDS THAT EMPLOYEES
OF AREA MAINTENANCE SUPPORT ACTIVITY NO. 67 (AMSA 67), 86TH ARMY RESERVE
COMMAND (ARCOM), LOCATED AT CAMP MCCOY REMAIN AND ARE INCLUDED IN THE
EXISTING UNIT. THE ACTIVITY CONTENDS THAT TO INCLUDE EMPLOYEES OF AMSA
67 IN THE EXISTING UNIT OF CAMP MCCOY EMPLOYEES WOULD FRAGMENTIZE THE
86TH ARCOM, IN WHICH THE EMPLOYEES OF AMSA 67 SHARE A COMMUNITY OF
INTEREST WITH EMPLOYEES OF ALL AMSA'S IN THE 86TH ARCOM.
THE EXISTING UNIT AT CAMP MCCOY REPRESENTED BY THE PETITIONER
INCLUDES EMPLOYEES IN THE CONSOLIDATED MAINTENANCE DIVISION (CMD) WHICH
PROVIDES DIRECT SUPPORT AND GENERAL SUPPORT MAINTENANCE FOR ALL UNITED
STATES ARMY RESERVE (USAR) UNITS IN MINNESOTA, IOWA, AND WISCONSIN.
PRIOR TO MARCH 1972, AN ANNUAL TRAINING EQUIPMENT POOL (ATEP) WITHIN THE
CMD HAD THE RESPONSIBILITY FOR STORAGE AND ORGANIZATIONAL MAINTENANCE
(MINOR REPAIR AND MAINTENANCE) OF VEHICLES AND EQUIPMENT OF USAR UNITS.
IN MARCH 1972, THE FIFTH U.S. ARMY ESTABLISHED USAR ATEP'S AT CERTAIN
U.S. ARMY INSTALLATIONS, INCLUDING CAMP MCCOY, AND THE ATEP, THEN IN THE
CMD AT CAMP MCCOY, WAS TRANSFERRED FROM CAMP MCCOY TO THE 86TH ARCOM AND
ASSIGNED TO AMSA 67.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES OF THE AMSA 67
CONTINUE, FOLLOWING THE TRANSFER, TO SHARE A COMMUNITY OF INTEREST WITH
THE OTHER EMPLOYEES OF THE EXISTING UNIT AT CAMP MCCOY. HE NOTED THAT A
SUBSTANTIAL NUMBER OF EMPLOYEES IN AMSA 67 PREVIOUSLY WERE ASSIGNED TO
THE CMD, WITHIN THE ESTABLISHED BARGAINING UNIT AND THAT THESE EMPLOYEES
CURRENTLY ARE PERFORMING JOB FUNCTIONS SIMILAR TO THOSE THEY PREVIOUSLY
PERFORMED IN THE CMD AND UNDER SIMILAR WORKING CONDITIONS AT CAMP MCCOY.
ALSO, HE NOTED THE EMPLOYEES OF AMSA 67 CONTINUE TO HAVE DAILY CONTACT
WITH THE EXISTING UNIT EMPLOYEES AND THAT THE CIVILIAN PERSONNEL OFFICER
OF CAMP MCCOY RETAINS RESPONSIBILITY FOR ALL LABOR-MANAGEMENT RELATIONS
AND PERSONNEL MATTERS FOR BOTH GROUPS. ACCORDINGLY, AND NOTING THAT
UNDER THE CIRCUMSTANCES THE CONTINUED INCLUSION OF THE AMSA 67 EMPLOYEES
IN THE EXISTING UNIT WOULD, IN HIS VIEW, PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY ORDERED THAT
THE EXISTING UNIT BE CLARIFIED TO INCLUDE ALL ELIGIBLE EMPLOYEES OF THE
AMSA 67.
DEPARTMENT OF THE ARMY,
CAMP MCCOY,
SPARTA, WISCONSIN
AND
LOCAL 1358, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PHILIP JULIAN.
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:
THE PETITIONER, THE RECOGNIZED EXCLUSIVE REPRESENTATIVE OF ALL
NONSUPERVISORY APPROPRIATED FUND EMPLOYEES OF CAMP MCCOY, WISCONSIN,
FILED A PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING CLARIFICATION OF
AN EXISTING BARGAINING UNIT TO INCLUDE ALL APPROPRIATED FUND EMPLOYEES
OF THE FIFTH U.S. ARMY LOCATED AT CAMP MCCOY, WISCONSIN. SPECIFICALLY,
IN THIS PROCEEDING, THE PETITIONER CONTENDS THAT EMPLOYEES OF AREA
MAINTENANCE SUPPORT ACTIVITY NO. 67 (AMSA 67), 86TH ARMY RESERVE COMMAND
(ARCOM), LOCATED AT CAMP MCCOY REMAIN AND ARE INCLUDED IN THE EXISTING
UNIT AT CAMP MCCOY.
THE ACTIVITY ASSERTS THAT TO INCLUDE EMPLOYEES OF AMSA 67 IN THE
EXISTING UNIT OF CAMP MCCOY EMPLOYEES WOULD FRAGMENTIZE THE 86TH ARCOM,
AND, AS A CONSEQUENCE, WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. FURTHER, THE ACTIVITY CONTENDS THERE
IS NO CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG EMPLOYEES OF
AMSA 67 AND EMPLOYEES OF CAMP MCCOY, BUT, RATHER, EMPLOYEES OF AMSA 67
SHARE A COMMUNITY OF INTEREST WITH EMPLOYEES OF ALL AMSA'S IN THE 86TH
ARCOM. MOREOVER, THE ACTIVITY CONTENDS THAT PRIOR DECISIONS OF THE
ASSISTANT SECRETARY HAVE FOUND UNITS APPROPRIATE ON A COMMAND RATHER
THAN ON A GEOGRAPHIC BASIS.
ON AUGUST 31, 1966, THE PETITIONER WAS GRANTED RECOGNITION AS THE
EXCLUSIVE REPRESENTATIVE OF THE ACTIVITY'S APPROPRIATED FUND EMPLOYEES.
/2/ THE EXISTING UNIT AT CAMP MCCOY EXCLUSIVELY REPRESENTED BY THE
PETITIONER INCLUDES EMPLOYEES IN THE CONSOLIDATED MAINTENANCE DIVISION
(CMD) OF CAMP MCCOY. THE CMD PROVIDES DIRECT SUPPORT AND GENERAL
SUPPORT MAINTENANCE (MAJOR OVERHAUL AND MAINTENANCE) FOR ALL UNITED
STATES ARMY RESERVE (USAR) UNITS IN MINNESOTA, IOWA, AND WISCONSIN.
PRIOR TO MARCH 1972, AN ANNUAL TRAINING EQUIPMENT POOL (ATEP), WHICH WAS
LOCATED WITHIN THE CMD, HAD THE RESPONSIBILITY FOR STORAGE AND
ORGANIZATIONAL MAINTENANCE (MINOR REPAIR AND MAINTENANCE) OF VEHICLES
AND EQUIPMENT OF USAR UNITS WITHIN THE CMD'S AREA OF SUPPORT
RESPONSIBILITY. THE ORGANIZATIONAL MAINTENANCE WAS PERFORMED BY
SEASONAL EMPLOYEES OF THE CMD WITHIN THE BARGAINING UNIT.
IN MARCH 1972, THE FIFTH U.S. ARMY ESTABLISHED USAR ATEP'S AT CERTAIN
U.S. ARMY INSTALLATIONS, INCLUDING CAMP MCCOY. PURSUANT TO THIS ACTION,
IN MARCH 1972 THE ATEP, THEN IN THE CMD AT CAMP MCCOY, WAS TRANSFERRED
FROM CAMP MCCOY TO THE 8TH ARCOM AND, IN TURN, ASSIGNED TO AMSA 67.
INITIALLY, COMMAND AND CONTROL OF THE ATEP AT CAMP MCCOY RESTED WITH THE
COMMANDER AT CAMP MCCOY, AND IT WAS HIS RESPONSIBILITY TO PROVIDE
SUFFICIENT PERSONNEL AND ADEQUATE FACILITIES BY MARCH 31, 1972, FOR THE
ATEP TO RECEIVE AND MAINTAIN EQUIPMENT. THE ATEP WAS TO BE STAFFED WITH
PERSONNEL HAVING "DUAL STATUS" AS ACTIVE MEMBERS OF THE USAR. THE 86TH
ARCOM ASSUMED CONTROL OF THE ATEP ON SEPTEMBER 15, 1972, AT WHICH TIME
IT BECAME A TENANT ACTIVITY AT CAMP MCCOY.
AMSA 67 IS ONE OF 12 AMSA'S IN THE 86TH ARCOM, SIX OF WHICH ARE
LOCATED IN ILLINOIS AND SIX IN WISCONSIN. THEIR OVERALL FUNCTION IS TO
ASSURE MOBILIZATION READINESS OF USAR UNITS. ALL OF THE AMSA'S ARE
UNDER THE SUPERVISION OF THE ASSISTANT CHIEF OF STAFF, G-4 SUPPLY AND
MAINTENANCE, 8TH ARCOM, HEADQUARTERED IN CHICAGO, ILLINOIS. THE RECORD
REVEALS THAT THE SPECIFIC MISSION OF AMSA 67 IS TO PROVIDE STORAGE AND
ORGANIZATIONAL MAINTENANCE AND LIMITED MAJOR OVERHAUL AND MAINTENANCE
FOR COMBAT AND TACTICAL VEHICLES AND EQUIPMENT OF 86TH ARCOM UNITS WHICH
HAVE BEEN DIRECTED TO CONTRIBUTE TO THE ATEP. /3/ PARTS AND SUPPLIES
NECESSARY FOR REPAIR AND MAINTENANCE ARE REQUISITIONED FROM THE CMD,
CAMP MCCOY, ON A REIMBURSABLE BASIS BY THE 86TH ARCOM. THUS, EMPLOYEES
OF AMSA 67 PERFORM ORGANIZATIONAL MAINTENANCE ON CERTAIN VEHICLES AND
EQUIPMENT OF THE ARCOM AND, IF MAJOR OVERHAUL AND MAINTENANCE IS DEEMED
NECESSARY, SUCH WORK IS PERFORMED BY THE CMD.
AS A RESULT OF THE TRANSFER OF THE ATEP FROM CAMP MCCOY TO THE 86TH
ARCOM, THE STAFFING FOR THE U.S. ARMY GARRISON, CAMP MCCOY, WAS ADJUSTED
BY ELIMINATING 55 POSITIONS IN THE CMD, AND 52 POSITIONS /4/ WERE
ESTABLISHED FOR AMSA 67. INITIAL STAFFING OF AMSA 67 WAS ACCOMPLISHED
BY RECRUITING FROM THE CAMP MCCOY WORKFORCE, INCLUDING THE TRANSFER OF
33 SEASONAL EMPLOYEES FROM THE SEASONAL ORGANIZATIONAL MAINTENANCE SHOP
OF THE CMD. FOLLOWING THE REORGANIZATION, THESE SAME EMPLOYEES
PERFORMED ESSENTIALLY THE SAME ORGANIZATIONAL MAINTENANCE AND JOB DUTIES
WHICH THEY HAD PERFORMED WHILE WORKING FOR THE SEASONAL ORGANIZATIONAL
MAINTENANCE SHOP OF THE CMD.
A SUBSTANTIAL NUMBER OF EMPLOYEES IN THE CMD AND A MAJORITY OF THE
EMPLOYEES IN AMSA 67 ARE WAGE GRADE (WG) EMPLOYEES. EMPLOYEES IN AMSA
67 AND EMPLOYEES IN THE CAMP MCCOY WORKFORCE HAVE THE SAME WORKING HOURS
AND CONDITIONS AND SOME DAILY WORK CONTACT WHEN PARTS AND SUPPLIES ARE
REQUISITIONED. THE RECORD REVEALS THAT THE CIVILIAN PERSONNEL OFFICER
(CPO) OF CAMP MCCOY IS RESPONSIBLE FOR ALL LABOR-MANAGEMENT RELATIONS
AND PERSONNEL MATTERS FOR AMSA 67 AND THE CAMP MCCOY WORKFORCE,
INCLUDING THE PROCESSING OF PROMOTIONS AND REDUCTION IN FORCE ACTIONS
EVEN THOUGH DIFFERENT COMPETITIVE AREAS ARE INVOLVED. /5/ ALSO, THE CPO
MAINTAINS THE PERSONNEL RECORDS FOR AMSA 67 AND THE CAMP MCCOY
WORKFORCE, AND PROCESSES GRIEVANCES FOR THE RESPECTIVE COMMANDS WHEN
THEY REACH THE THIRD LEVEL OF THE GRIEVANCE PROCEDURE. PAYROLL AND TIME
AND ATTENDANCE RECORDS FOR EMPLOYEES OF AMSA 67 ARE MAINTAINED BY THE
86TH ARCOM AT FORT SHERIDAN, ILLINOIS.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT AMSA 67
EMPLOYEES DO NOT HAVE A COMMUNITY OF INTEREST THAT IS SEPARATE AND
DISTINCT FROM THE EMPLOYEES OF CAMP MCCOY. THUS, IT APPEARS THAT A
SUBSTANTIAL NUMBER OF EMPLOYEES IN AMSA 67 PREVIOUSLY WERE ASSIGNED TO
THE CMD, AND, AS SUCH, WERE IN THE ESTABLISHED BARGAINING UNIT AT CAMP
MCCOY. FURTHER, THESE AMSA 67 EMPLOYEES CURRENTLY ARE PERFORMING JOB
FUNCTIONS SIMILAR TO THOSE THEY PREVIOUSLY PERFORMED IN THE CMD, AND
UNDER SIMILAR WORKING CONDITIONS AT CAMP MCCOY. EMPLOYEES OF AMSA 67
ARE IN DAILY CONTACT WITH EMPLOYEES OF THE CMD IN CONNECTION WITH THE
REQUISITIONING OF NECESSARY PARTS AND SUPPLIES FOR REPAIR AND
MAINTENANCE OF VEHICLES AND EQUIPMENT. MOREOVER, THE CPO AT CAMP MCCOY
RETAINS RESPONSIBILITY FOR ALL LABOR-MANAGEMENT RELATIONS AND PERSONNEL
MATTERS FOR BOTH GROUPS. ALTHOUGH AMSA 67 IS UNDER ANOTHER COMMAND,
WHICH IS SEPARATED GEOGRAPHICALLY FROM CAMP MCCOY, AND WHOSE COMMANDER
PARTICIPATES AT THE THIRD STEP OF THE GRIEVANCE PROCEDURE, I FIND THAT,
ON BALANCE, THESE FACTORS ARE NOT SUFFICIENT TO ESTABLISH THAT AMSA 67
EMPLOYEES ENJOY A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM THE
EMPLOYEES IN THE EXISTING UNIT. /6/ FURTHER, I FIND THAT THEIR
CONTINUED INCLUSION IN THE EXISTING UNIT WILL PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HAVING FOUND THAT
EMPLOYEES IN AMSA 67 SHARE A COMMUNITY OF INTEREST WITH EMPLOYEES OF
CAMP MCCOY AND HAVE, IN EFFECT, REMAINED IN THE EXISTING EXCLUSIVELY
RECOGNIZED UNIT, I SHALL ORDER THAT THE EXISTING UNIT OF NONSUPERVISORY
APPROPRIATED FUND EMPLOYEES OF CAMP MCCOY BE CLARIFIED TO INCLUDE ALL
ELIGIBLE EMPLOYEES OF THE MASA 67.
IT IS HEREBY ORDERED THAT THE UNIT OF ALL APPROPRIATED FUND EMPLOYEES
OF CAMP MCCOY, WISCONSIN, FOR WHICH EXCLUSIVE RECOGNITION WAS GRANTED TO
LOCAL 1358, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ON
AUGUST 31, 1966, BE, AND IT HEREBY IS, CLARIFIED TO INCLUDE IN SAID UNIT
ALL ELIGIBLE EMPLOYEES OF AREA MAINTENANCE SUPPORT ACTIVITY NO. 67.
DATED, WASHINGTON, D.C.
APRIL 10, 1974
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ A CURRENT NEGOTIATED AGREEMENT EXECUTED BY THE PARTIES IN
NOVEMBER 1971, WITH A TERMINAL DATE OF NOVEMBER 11, 1973, PROVIDES FOR
AUTOMATIC RENEWAL FOR A TERM OF TWO YEARS.
/3/ THE VEHICLES AND EQUIPMENT, CONSISTING OF ENGINEERING HEAVY
EQUIPMENT, TACTICAL AND SUPPORT VEHICLES, AND COMBAT AND ARTILLERY
VEHICLES, ARE STORED AND MAINTAINED AT THREE LOCATIONS AT CAMP MCCOY.
/4/ THE ACTIVITY INTRODUCED EVIDENCE THAT THE COMPLEMENT OF AMSA 67
AS OF NOVEMBER 1, 1973, WAS 79 EMPLOYEES.
/5/ THE COMPETITIVE AREA FOR EMPLOYMENT IN AMSA 67 IS WITHIN THE
ARCOM'S SERVICED BY THE CPO, CAMP MCCOY, WHILE THE COMPETITIVE AREA FOR
EMPLOYMENT BY CAMP MCCOY IS WITHIN THE CAMP MCCOY WORKFORCE.
/6/ CF. DEPARTMENT OF THE ARMY, STRATEGIC COMMUNICATIONS COMMAND,
FORT HUACHUCA, ARIZONA, A/SLMR NO. 351; DEPARTMENT OF ARMY
HEADQUARTERS, U.S. ARMY TRAINING CENTER ENGINEERS AND FORT LEONARD WOOD,
FORT LEONARD WOOD, MISSOURI, A/SLMR NO. 328; AND AMC COMMUNICATIONS
CENTER, SAVANNA, ILLINOIS, A/SLMR NO. 291.
4 A/SLMR 376; P. 240; CASE NO. 20-4115(CU); APRIL 10, 1974.
PENNSYLVANIA NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS
A/SLMR NO. 376
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE ACTIVITY SEEKING CLARIFICATION OF THE STATUS OF CERTAIN EMPLOYEE JOB
CLASSIFICATIONS IN THE EXISTING EXCLUSIVELY RECOGNIZED UNIT, NAMELY:
SECRETARY (TYPING), GS-5; PERSONNEL CLERK (TYPING), GS-5; PERSONNEL
ASSISTANT, GS-7; PERSONNEL ASSISTANT (TYPING), GS-6; AIRCRAFT MECHANIC
LEADER, WL-10; WAREHOUSE LEADER, WL-7; PAYROLL CLERK, GS-6; MILITARY
PERSONNEL TECHNICIAN, GS-7; AND SUPPLY TECHNICIAN, GS-7. THE ACTIVITY
CONTENDED THAT THE EMPLOYEES IN THE FIRST FOUR CLASSIFICATIONS WERE
CONFIDENTIAL EMPLOYEES, AND THAT THE EMPLOYEES IN THE LAST FIVE
CLASSIFICATIONS WERE SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER. THE EXCLUSIVE REPRESENTATIVE, THE ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., PENNSYLVANIA STATE COUNCIL (ACT), CONTENDED THAT THE
EMPLOYEES IN THESE JOB CLASSIFICATIONS SHOULD BE INCLUDED IN THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE SECRETARY (TYPING), GS-5,
SERVED IN A CONFIDENTIAL CAPACITY TO THE PERSONNEL OFFICER WHO IS
RESPONSIBLE FOR FORMULATING AND EFFECTUATING MANAGEMENT POLICY IN THE
FIELD OF LABOR RELATIONS, BUT THAT THE PERSONNEL CLERK (TYPING), GS-5,
WAS NOT A CONFIDENTIAL EMPLOYEE. THE ASSISTANT SECRETARY FURTHER
CONCLUDED THAT THE EMPLOYEES IN THE POSITIONS OF PERSONNEL ASSISTANT,
GS-7 AND PERSONNEL ASSISTANT (TYPING), GS-6, WERE ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, WHO SHOULD BE
EXCLUDED FROM THE UNIT IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION
10(B)(2) OF THE ORDER, AND, THEREFORE, IT WAS UNNECESSARY TO CONSIDER
WHETHER THEY WERE CONFIDENTIAL EMPLOYEES. WITH REGARD TO THE EMPLOYEES
IN THE LAST FIVE POSITIONS, THE ASSISTANT SECRETARY FOUND THAT THEY WERE
NOT SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ACCORDINGLY, THE ASSISTANT SECRETARY CLARIFIED THE EXCLUSIVELY
RECOGNIZED UNIT BY EXCLUDING FROM THE UNIT THE POSITIONS OF SECRETARY
(TYPING), GS-5; PERSONNEL ASSISTANT, GS-7; AND, PERSONNEL ASSISTANT
(TYPING), GS-6. IN ADDITION, THE ASSISTANT SECRETARY DECIDED THAT THE
POSITIONS OF PERSONNEL CLERK (TYPING), GS-5; AIRCRAFT MECHANIC LEADER,
WL-10; WAREHOUSE LEADER, WL-7; PAYROLL CLERK, GS-6; MILITARY
PERSONNEL TECHNICIAN, GS-7; AND SUPPLY TECHNICIAN, GS-7, SHOULD BE
INCLUDED IN THE EXCLUSIVELY RECOGNIZED UNIT.
PENNSYLVANIA NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS
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 RICHARD C. GRANT.
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 FILED A PETITION FOR CLARIFICATION OF AN
EXISTING UNIT OF ALL WAGE BOARD AND GENERAL SCHEDULE ARMY NATIONAL GUARD
TECHNICIANS IN PENNSYLVANIA, WHICH UNIT IS REPRESENTED EXCLUSIVELY BY
THE PENNSYLVANIA STATE COUNCIL OF THE ASSOCIATION OF CIVILIAN
TECHNICIANS, INC., HEREIN CALLED ACT. SPECIFICALLY, THE ACTIVITY SEEKS
TO CLARIFY THE STATUS OF THE FOLLOWING EMPLOYEE JOB CLASSIFICATIONS,
WHOSE INCUMBENTS THE ACTIVITY ASSERTS ARE CONFIDENTIAL OR SUPERVISORY
EMPLOYEES AND, THEREFORE, SHOULD BE EXCLUDED FROM THE UNIT: SECRETARY
(TYPING), GS-5; PERSONNEL CLERK (TYPING), GS-5; PERSONNEL ASSISTANT,
GS-7; PERSONNEL ASSISTANT (TYPING), GS-6; AIRCRAFT MECHANIC LEADER,
WL-10; SUPPLY TECHNICIAN, GS-6 (31-876-31); WAREHOUSE LEADER, WL-7;
PAYROLL CLERK, GS-6; MILITARY PERSONNEL TECHNICIAN, GS-7; AND SUPPLY
TECHNICIAN, GS-7 (61-871-46). /1/
THE RECORD REFLECTS THAT ON MARCH 15, 1971, THE ACT WAS CERTIFIED AS
THE EXCLUSIVE REPRESENTATIVE FOR THE ABOVE DESCRIBED UNIT. THE RECORD
DOES NOT REFLECT WHETHER THE PARTIES HAVE ENTERED INTO A NEGOTIATED
AGREEMENT. THE PENNSYLVANIA ARMY NATIONAL GUARD TECHNICIAN PROGRAM
PRESENTLY CONSISTS OF SOME 1,142 EMPLOYEES AND IS ADMINISTERED BY THE
ADJUTANT GENERAL OF PENNSYLVANIA WHO RECEIVES GUIDANCE FROM THE NATIONAL
GUARD BUREAU IN WASHINGTON, D.C.
SECRETARY (TYPING), GS-5; PERSONNEL CLERK (TYPING), GS-5; PERSONNEL
ASSISTANT, GS-7; PERSONNEL ASSISTANT (TYPING), GS-6.
THE FOUR JOB CLASSIFICATIONS LISTED ABOVE ALL ARE LOCATED IN THE
TECHNICIAN PERSONNEL OFFICE OF THE PENNSYLVANIA NATIONAL GUARD. THE
ACTIVITY ASSERTS THAT THE EMPLOYEES IN THESE JOB CLASSIFICATIONS ARE
CONFIDENTIAL EMPLOYEES WHO SHOULD BE EXCLUDED FROM THE UNIT.
THE EVIDENCE ESTABLISHED THAT THE SECRETARY (TYPING), GS-5, IS THE
PERSONAL SECRETARY OF THE PERSONNEL OFFICER OF THE PENNSYLVANIA NATIONAL
GUARD, AND THAT THE PERSONNEL OFFICER IS RESPONSIBLE FOR FORMULATING AND
EFFECTUATING LABOR RELATIONS POLICY FOR ALL EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT. IN THIS CONNECTION, THE INCUMBENT IN THE DISPUTED JOB
CLASSIFICATION HANDLES LABOR RELATIONS REPORTS, THE MINUTES OF MEETINGS
DEALING WITH LABOR RELATIONS STRATEGY, AND IS RESPONSIBLE FOR
MAINTAINING FILES AND RECORDS OF SUCH MATERIAL. MOREOVER, IN THE
PERFORMANCE OF THESE DUTIES, THE INCUMBENT IS REQUIRED TO HAVE REGULAR
ACCESS TO CONFIDENTIAL LABOR RELATIONS FILES. BASED ON THE FOREGOING, I
FIND THAT THE EMPLOYEE IN QUESTION SERVES IN A CONFIDENTIAL CAPACITY TO
A PERSON INVOLVED IN THE FORMULATION AND EFFECTUATION OF MANAGEMENT
POLICIES IN THE FIELD OF LABOR RELATIONS. /2/ ACCORDINGLY, I SHALL
EXCLUDE THE SECRETARY (TYPING), GS-5, FROM THE UNIT.
THE ACTIVITY ALSO CONTENDS THAT THE PERSONNEL CLERK (TYPING), GS-5,
SHOULD BE EXCLUDED FROM THE UNIT AS A CONFIDENTIAL EMPLOYEE. THE RECORD
REVEALS THAT, ALTHOUGH IN THE PAST THE PERSONNEL CLERK (TYPING), GS-5,
HAD PERFORMED SERVICES FOR A FORMER ASSISTANT PERSONNEL OFFICER WHO HAD
BEEN DELEGATED MUCH OF THE RESPONSIBILITY FOR THE ACTIVITY'S LABOR
RELATIONS, UNDER THE CURRENT ORGANIZATIONAL STRUCTURE OF THE ACTIVITY'S
PERSONNEL OFFICE THE INCUMBENT IS, IN FACT, RESPONSIBLE TO THE PERSONNEL
MANAGEMENT SPECIALIST AND NOT TO THE ASSISTANT PERSONNEL OFFICER. I
FIND THAT THERE IS NO EVIDENCE ESTABLISHING THAT THE PERSONNEL CLERK
(TYPING), GS-5, SERVES CURRENTLY IN A CONFIDENTIAL CAPACITY TO A PERSON
INVOLVED IN THE FORMULATION AND EFFECTUATION OF LABOR RELATIONS POLICY.
MOREOVER, EVEN THOUGH THE INCUMBENT MAY HAVE ACCESS TO FILES WHICH
INCLUDE LABOR RELATIONS POLICY. MOREOVER, EVEN THOUGH THE INCUMBENT MAY
HAVE ACCESS TO FILES WHICH INCLUDE LABOR RELATIONS MATERIALS, THE MERE
ACCESS TO SUCH MATERIALS DOES NOT WARRANT THE EXCLUSION OF AN EMPLOYEE
FROM THE APPROPRIATE UNIT AS A CONFIDENTIAL EMPLOYEE. /3/ NOR IS THE
EVIDENCE SUFFICIENT TO ESTABLISH THAT THE EMPLOYEE IN THIS JOB
CLASSIFICATION IS ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY AND, THUS, WARRANTS EXCLUSION FROM THE UNIT ON
THIS BASIS. THEREFORE, BASED ON THE FOREGOING, I FIND THAT THE
EMPLOYEES IN THE CLASSIFICATION OF PERSONNEL CLERK (TYPING), GS-5,
SHOULD NOT BE EXCLUDED FROM THE UNIT.
THE EMPLOYEE DESIGNATED AS PERSONNEL ASSISTANT, GS-7, AND THE TWO
EMPLOYEES DESIGNATED AS PERSONNEL ASSISTANT (TYPING), GS-6, REPORT TO
THE SUPERVISORY PERSONNEL MANAGEMENT SPECIALIST, WHO IS UNDER THE
PERSONNEL OFFICER. THE ACTIVITY CONTENDS THAT, BECAUSE OF OCCASIONAL
PROJECTS IN THE AREA OF LABOR RELATIONS PERFORMED FOR THE PERSONNEL
OFFICER BY THESE EMPLOYEES, THEY ACT IN A CONFIDENTIAL CAPACITY TO AN
EMPLOYEE WHO IS RESPONSIBLE FOR FORMULATING AND EFFECTUATING LABOR
RELATIONS POLICY. HOWEVER, UNDER THE CIRCUMSTANCES DISCUSSED BELOW, I
FIND IT UNNECESSARY TO DETERMINE WHETHER THE PERSONNEL ASSISTANT, GS-7,
AND THE PERSONNEL ASSISTANTS (TYPING), GS-6, ARE, IN FACT, CONFIDENTIAL
EMPLOYEES. THUS, WHILE THESE EMPLOYEES ARE INVOLVED IN A CERTAIN AMOUNT
OF CLERICAL ACTIVITIES, THE RECORD REVEALS THAT THEY SPEND THE MAJORITY
OF THEIR TIME ENGAGED IN THE PREPARATION AND PROCESSING OF PERSONNEL
ACTIONS, SUCH AS ACCESSION ACTIONS, PROMOTIONS, REASSIGNMENTS,
DEMOTIONS, PAY INCREASES, SUSPENSIONS, TRANSFERS, ADVERSE ACTIONS, AND
SEPARATIONS, FOR THE SOME 1,142 TECHNICIANS IN THE PENNSYLVANIA ARMY
NATIONAL GUARD AND THAT THE PERFORMANCE OF THESE ADMINISTRATIVE DUTIES
IS NOT OF A ROUTINE CLERICAL NATURE. UNDER THESE CIRCUMSTANCES, IT WAS
CONCLUDED THAT THE EMPLOYEES IN THE JOB CLASSIFICATIONS OF PERSONNEL
ASSISTANT, GS-7, AND PERSONNEL ASSISTANT (TYPING), GS-6, ARE EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND I SHALL, THEREFORE, EXCLUDE THEM FROM THE UNIT AS REQUIRED
BY SECTION 10(B)(2) OF THE ORDER.
AIRCRAFT MECHANIC LEADER, WL-10
THERE ARE THREE EMPLOYEES DESIGNATED AS AIRCRAFT MECHANIC LEADER,
WL-10, IN THE LOGISTICAL SUPPORT MAINTENANCE BRANCH OF THE ACTIVITY.
EACH OF THE THREE AIRCRAFT MECHANIC LEADERS, WL-10, WORKS WITH A CREW OF
EIGHT AIRCRAFT MECHANICS, WG-10, AND IS RESPONSIBLE FOR THE ROUTINE
MAINTENANCE OF THE NINE AIRCRAFT REGULARLY ASSIGNED TO A PARTICULAR
CREW. IN THIS CONNECTION, THE RECORD REVEALS THAT ALTHOUGH AN AIRCRAFT
MECHANIC LEADER, WL-10, IS RESPONSIBLE FOR INSPECTING ROUTINE
MAINTENANCE WORK, NONROUTINE MAINTENANCE WORK MUST BE AUTHORIZED BY THE
AIRCRAFT MAINTENANCE OFFICER AND IS CHECKED BY AN AIRCRAFT INSPECTOR.
THE RECORD, INCLUDING THE AIRCRAFT MECHANIC LEADER'S, WL-10, JOB
DESCRIPTION, ALSO REFLECTS THAT THE AIRCRAFT MECHANIC LEADER, WL-10,
DOES NOT HAVE THE AUTHORITY TO HIRE, TRANSFER, SUSPEND, LAY-OFF, RECALL,
PROMOTE, DISCHARGE, REWARD, OR DISCIPLINE OTHER EMPLOYEES. /4/ WHILE HE
MAY ASSIGN CREW MEMBERS TO DO CERTAIN WORK AND DIRECT OTHER CREW MEMBERS
IN CARRYING OUT THEIR ASSIGNED TASKS, THE EVIDENCE ESTABLISHES THAT THE
ASSIGNMENT AND DIRECTION OF WORK IS OF A ROUTINE NATURE WITHIN
ESTABLISHED WORK PROCEDURES AND DOES NOT REQUIRE THE USE OF INDEPENDENT
JUDGEMENT. MOREOVER, ALTHOUGH THE RECORD INDICATES THAT THE INCUMBENTS
MAY HANDLE MINOR PROBLEMS ARISING WITHIN HIS CREW, THERE IS NO EVIDENCE
THAT SUCH HANDLING OTHER REQUIRES THE USE OF INDEPENDENT JUDGEMENT OR
THAT IT WOULD EXTEND TO OTHER THAN ROUTINE MATTERS.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH THAT THE AUTHORITY VESTED IN THE AIRCRAFT
MECHANIC LEADERS, WL-10, OR ACTIONS TAKEN BY THEM, ARE OTHER THAN
ROUTINE IN NATURE AND DICTATED BY ESTABLISHED PROCEDURES. ACCORDINGLY,
I CONCLUDE THAT THE AIRCRAFT MECHANIC LEADERS, WL-10, ARE NOT
SUPERVISORS WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER AND,
THEREFORE, SHOULD BE INCLUDED IN THE UNIT.
WAREHOUSE LEADER, WL-7, AND PAYROLL CLERK, GS-6
THE EMPLOYEES IN THESE TWO CLASSIFICATIONS ARE IN THE PROPERTY AND
FISCAL OFFICE WHICH IS UNDER THE DIRECT AUTHORITY OF THE ADJUTANT
GENERAL OF THE PENNSYLVANIA NATIONAL GUARD. THEY ARE ALLEGED TO BE
SUPERVISORS BY THE ACTIVITY.
THERE ARE THREE EMPLOYEES WITH THE DESIGNATION OF WAREHOUSE LEADER,
WL-7, WHO WORK DIRECTLY UNDER THE WAREHOUSE OFFICER AND HIS ASSISTANT IN
THE WAREHOUSE BRANCH OF THE PROPERTY AND FISCAL OFFICE. EACH OF THE
WAREHOUSE LEADERS WORKS WITH A CREW OF SOME SIX STOREKEEPERS, WG-7, AND
IS RESPONSIBLE FOR ONE OF THE THREE FUNCTIONAL SECTIONS OF THE WAREHOUSE
BRANCH: SHIPPING AND RECEIVING, ISSUES, AND UTILITY. THE RECORD
REVEALS THAT THE WORK PERFORMED BY THE WAREHOUSE LEADERS AND THE CREWS,
WHICH CONSISTS, FOR THE MOST PART, OF LOADING, UNLOADING, STORAGE, AND
INVENTORY, IS OF A ROUTINE NATURE PERFORMED WITHIN WELL ESTABLISHED
GUIDELINES AND THAT SUCH DIRECTION OF THE WORK AS THE WAREHOUSE LEADER
ENGAGES IN IS DICTATED BY THE NATURE OF THE WORK INVOLVED.
THE RECORD, INCLUDING THE INCUMBENTS' JOB DESCRIPTION, INDICATES THAT
THE RESPONSIBILITY FOR HIRING, TRANSFERRING, SUSPENDING, LAYING-OFF,
RECALLING, PROMOTING, DISCHARGING, ASSIGNING, REWARDING, AND
DISCIPLINING IN THE WAREHOUSE BRANCH RESTS WITH THE WAREHOUSE OFFICER
AND NOT WITH THE WAREHOUSE LEADER. /5/ MOREOVER, THE EVIDENCE
ESTABLISHES THAT THE WAREHOUSE LEADER DOES NOT HAVE THE AUTHORITY TO
GRANT LEAVE. WHILE THERE IS EVIDENCE THAT THE WAREHOUSE LEADER PROVIDES
CERTAIN INPUT INTO THE SOLVING OF EMPLOYEE PROBLEMS AND IN THE PREPARING
OF PERFORMANCE EVALUATIONS WITH RESPECT TO THE EMPLOYEES IN HIS CREW,
THE RECORD DOES NOT ESTABLISH THAT SUCH MATTERS REQUIRE THE USE OF
INDEPENDENT JUDGEMENT OR THAT ANY RECOMMENDATIONS MADE IN THIS
CONNECTION ARE EFFECTIVE.
UNDER ALL OF THESE CIRCUMSTANCES, AND NOTING THAT THE RECORD DOES NOT
ESTABLISH THAT ANY AUTHORITY RESTING WITH THE WAREHOUSE LEADER IS OTHER
THAN A ROUTINE NATURE OR THAT HIS JOB PERFORMANCE REQUIRES THE EXERCISE
OF INDEPENDENT JUDGEMENT, I FIND THAT THE WAREHOUSE LEADER, WL-7, IS NOT
A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ACCORDINGLY, THE EMPLOYEES IN THIS CLASSIFICATION SHOULD BE INCLUDED IN
THE UNIT.
THE POSITION OF PAYROLL CLERK, GS-6, IS LOCATED IN THE PAYROLL BRANCH
OF THE PROPERTY AND FISCAL OFFICE. THE PAYROLL BRANCH CONSISTS OF A
TIME, LEAVE, AND PAYROLL CLERK, GS-7; THE EMPLOYEE IN QUESTION; TWO
PAYROLL CLERKS, GS-5; AND A CLERK-TYPIST, GS-3. THE PAYROLL CLERK,
GS-7, ALSO KNOWN AS THE PAYROLL SUPERVISOR, IS THE SUPERVISOR OF THE
INCUMBENT. THE PAYROLL CLERKS, GS-7, ALSO KNOWN AS THE PAYROLL
SUPERVISOR IS RESPONSIBLE FOR ASSURING THAT THE SOME 1,142 TECHNICIANS
OF THE PENNSYLVANIA ARMY NATIONAL GUARD ARE PAID ON TIME. THE RECORD
REFLECTS THAT EACH OF THE EMPLOYEES UNDER THE PAYROLL SUPERVISOR,
INCLUDING THE INCUMBENT, IS RESPONSIBLE FOR SPECIFIC DUTIES WHICH ARE OF
A ROUTINE NATURE AND ARE DICTATED BY ESTABLISHED POLICIES. FURTHER, THE
EVIDENCE, INCLUDING THE INCUMBENT'S JOB DESCRIPTION, ESTABLISHES THAT
THE PAYROLL CLERK, GS-6, DOES NOT HAVE THE AUTHORITY TO HIRE, TRANSFER,
SUSPEND, LAY-OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN, REWARD, OR
DISCIPLINE OTHER EMPLOYEES, AND THAT SUCH AUTHORITY, IN FACT, RESTS WITH
THE PAYROLL SUPERVISOR. WHEN THE PAYROLL SUPERVISOR IS ABSENT, WHICH IS
APPROXIMATELY 20 PERCENT OF THE TIME, THE PAYROLL CLERK, GS-6, FILLS IN
FOR THE FORMER AND, ON SUCH OCCASIONS, HAS LIMITED AUTHORITY TO DIRECT
THE OTHER EMPLOYEES OF THE PAYROLL BRANCH AND APPROVE SUCH THINGS AS
ANNUAL LEAVE. WHILE THE PAYROLL CLERK, GS-6, PROVIDES CERTAIN INPUT
INTO THE GS-5 PAYROLL CLERKS' AND THE GS-3 CLERK TYPIST'S PERFORMANCE
RATINGS, THE EVIDENCE DOES NOT ESTABLISH THAT ANY RECOMMENDATIONS IN
THIS REGARD HAVE BEEN EFFECTIVE OR REQUIRE THE USE OF INDEPENDENT
JUDGEMENT.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE EVIDENCE IS
INSUFFICIENT TO ESTABLISH THAT THE AUTHORITY VESTED IN THE PAYROLL
CLERK, GS-6, OR ACTIONS TAKEN BY HIM, ARE OF OTHER THAN ROUTINE IN
NATURE AND DICTATED BY ESTABLISHED PROCEDURES. MOREOVER, I FIND THAT
BECAUSE THE PAYROLL CLERK, GS-6, SUBSTITUTES FOR THE PAYROLL SUPERVISOR
ON A SPORADIC AND LIMITED BASIS, SUCH A JOB FUNCTION IS INSUFFICIENT TO
ESTABLISH THE INDICIA OF SUPERVISORY AUTHORITY WITHIN THE MEANING OF
SECTION 2(C) OF THE ORDER. ACCORDINGLY, I CONCLUDE THAT THE PAYROLL
CLERK, GS-6, IS NOT A SUPERVISOR WITHIN THE MEANING OF THE ORDER AND,
THEREFORE, SHOULD BE INCLUDED IN THE UNIT.
MILITARY PERSONNEL TECHNICIAN, GS-7 AND SUPPLY TECHNICIAN, GS-7
THE RECORD REVEALS THAT THE THREE EMPLOYEES IN THESE TWO
CLASSIFICATIONS ARE LOCATED IN THE MILITARY PERSONNEL OFFICE. THIS
OFFICE IS RESPONSIBLE FOR ALL RECORD KEEPING AND RELATED MATTERS WITH
REGARD TO EMPLOYEES IN THEIR MILITARY CAPACITY.
THERE ARE TWO EMPLOYEES IN THE CLASSIFICATION OF MILITARY PERSONNEL
TECHNICIAN, GS-7, WHO THE ACTIVITY CLAIMS ARE SUPERVISORY EMPLOYEES.
THE RECORD REFLECTS THAT THE INDIVIDUALS WHO THE MILITARY PERSONNEL
TECHNICIANS ARE ALLEGED TO SUPERVISE ARE NOT FEDERAL EMPLOYEES BUT,
RATHER, ARE EMPLOYEES OF THE STATE OF PENNSYLVANIA. EACH MILITARY
PERSONNEL TECHNICIAN HEADS A SECTION CONSISTING OF SIX OR SEVEN STATE
EMPLOYEES, AND EACH SECTION IS DIVIDED INTO TEAMS WHICH HANDLE SPECIFIC
TASKS. THE MILITARY PERSONNEL TECHNICIANS DO NOT RATE THE PERFORMANCE
OF ANY OF THE EMPLOYEES UNDER THEM. MOREOVER, THE RECORD REVEALS THEY
DO NOT APPROVE ANNUAL LEAVE FOR THE STATE EMPLOYEES. THE EVIDENCE,
INCLUDING THE INCUMBENTS' JOB DESCRIPTIONS, INDICATES THAT THE AUTHORITY
TO HIRE, TRANSFER, SUSPEND, LAY-OFF, RECALL, PROMOTE, DISCHARGE, REWARD,
AND DISCIPLINE THE STATE EMPLOYEES UNDER THEM RESTS WITH THE STATE
EMPLOYEE IN CHARGE OF THE MILITARY PERSONNEL OFFICE AND NOT WITH THE
INCUMBENTS. WHILE THE TECHNICIANS HAVE SOME LIMITED AUTHORITY TO DIRECT
THE STATE EMPLOYEES IN THEIR PARTICULAR SECTIONS, THE EVIDENCE DOES NOT
ESTABLISH THAT THIS AUTHORITY REQUIRES THE USE OF INDEPENDENT JUDGMENT
OR THAT THE WORK PERFORMED IS OTHER THAN A ROUTINE NATURE.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES DESIGNATED
AS MILITARY PERSONNEL TECHNICIAN, GS-7, ARE NOT SUPERVISORS WITHIN THE
MEANING OF SECTION 2(C) OF THE ORDER. THUS, THE EVIDENCE DOES NOT
ESTABLISH THAT ANY AUTHORITY VESTED IN THEM OR ACTIONS TAKEN BY THEM ARE
OF OTHER THAN OF A ROUTINE NATURE, DICTATED BY ESTABLISHED PROCEDURES.
MOREOVER, WHILE THE RECORD INDICATES THAT THE EMPLOYEES IN THE DISPUTED
CLASSIFICATION MAY PERFORM PERSONNEL WORK OF OTHER THAN A CLERICAL
NATURE, IT WAS NOTED THAT THE PERSONNEL WORK INVOLVED RELATES TO PERSONS
OUTSIDE THE FEDERAL SERVICE. UNDER THESE CIRCUMSTANCES I FIND THAT
SECTION 10(B)(2) OF THE ORDER IS INAPPLICABLE IN THIS SITUATION. /6/
ACCORDINGLY, I CONCLUDE THAT THE EMPLOYEES IN THE CLASSIFICATION OF
MILITARY PERSONNEL TECHNICIAN, GS-7, SHOULD BE INCLUDED IN THE UNIT.
WITH RESPECT TO THE SUPPLY TECHNICIAN, GS-7, WHO THE ACTIVITY
CONTENDS IS A SUPERVISOR, THE RECORD REVEALS THAT THE EMPLOYEE IN THIS
JOB CLASSIFICATION IS IN CHARGE OF THE STORING AND DISTRIBUTION OF THE
MILITARY PUBLICATIONS REQUIRED BY THE ARMY NATIONAL GUARD THROUGHOUT
PENNSYLVANIA. OTHER THAN THE EMPLOYEE IN QUESTION, THERE ARE THREE
STATE EMPLOYEES AND ONE UNFILLED GS-5 FEDERAL POSITION LOCATED IN THE
PUBLICATIONS SECTION OF THE MILITARY PERSONNEL OFFICE. ALTHOUGH THE
RECORD INDICATES THE INCUMBENT MAY APPROVE LEAVE AND PROVIDE CERTAIN
INPUT INTO THE PERSONNEL EVALUATION OF THE ONE FEDERAL EMPLOYEE WHO IS
SCHEDULED TO BE PLACED UNDER HIM, THE EVIDENCE DOES NOT INDICATE THAT
SUCH RESPONSIBILITY WOULD BE OTHER THAN ROUTINELY EXERCISED. NOR DOES
THE EVIDENCE ESTABLISH THAT INDEPENDENT JUDGEMENT WOULD BE UTILIZED. IN
ADDITION, THE EVIDENCE, INCLUDING THE INCUMBENT'S JOB DESCRIPTION,
INDICATES THAT THE SUPPLY TECHNICIAN, GS-7, DOES NOT HAVE THE AUTHORITY
TO HIRE, TRANSFER, SUSPEND, LAY-OFF, RECALL, PROMOTE, DISCHARGE, ASSIGN,
REWARD, OR DISCIPLINE OTHER EMPLOYEES.
UNDER ALL OF THESE CIRCUMSTANCES, AND NOTING THAT THE EVIDENCE DOES
NOT ESTABLISH THAT THE AUTHORITY VESTED IN THE SUPPLY TECHNICIAN, GS-7,
IS OTHER THAN OF A ROUTINE NATURE AND DOES NOT REQUIRE THE USE OF
INDEPENDENT JUDGEMENT, I CONCLUDE THAT THE SUPPLY TECHNICIAN, GS-7, IS
NOT A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER, AND,
THEREFORE, SHOULD BE INCLUDED IN THE UNIT.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, IN
WHICH CERTIFICATION AS THE EXCLUSIVE REPRESENTATIVE WAS GRANTED TO THE
PENNSYLVANIA STATE COUNCIL OF THE ASSOCIATION OF CIVILIAN TECHNICIANS,
INC., ON MARCH 15, 1971, FOR ALL ARMY NATIONAL GUARD TECHNICIANS IN THE
STATE OF PENNSYLVANIA, BE, AND HEREBY IS CLARIFIED BY EXCLUDING FROM
SAID UNIT THE POSITIONS CLASSIFIED AS: SECRETARY (TYPING), GS-5 TO THE
PERSONNEL OFFICER; PERSONNEL ASSISTANT, GS-7; AND PERSONNEL ASSISTANT
(TYPING), GS-6, ALL IN THE TECHNICIAN PERSONNEL OFFICE OF THE
PENNSYLVANIA NATIONAL GUARD; AND BY INCLUDING WITHIN THE SAID UNIT THE
POSITION CLASSIFIED AS: PERSONNEL CLERK (TYPING), GS-5; AIRCRAFT
MECHANIC LEADER, WL-10; WAREHOUSE LEADER, WL-7; PAYROLL CLERK, GS-6;
MILITARY PERSONNEL TECHNICIAN, GS-7; AND SUPPLY TECHNICIAN, GS-7
(61-871-46).
DATED, WASHINGTON, D.C.
APRIL 10, 1974
/1/ AT THE HEARING, THE PARTIES, BY STIPULATION, AMENDED THE SUBJECT
PETITION TO DELETE NINE ADDITIONAL EMPLOYEE JOB CLASSIFICATIONS.
FURTHER, DURING THE HEARING, THE PARTIES STIPULATED THAT AN EXHIBIT
PLACED INTO EVIDENCE CORRECTLY DESCRIBED THE SUPERVISORY DUTIES OF AN
EMPLOYEE CLASSIFIED AS SUPPLY TECHNICIAN, GS-6 (31-876-31), IN THE
PROPERTY AND FISCAL OFFICE, AND THERE IS NO RECORD EVIDENCE TO THE
CONTRARY. UNDER THESE CIRCUMSTANCES, I SHALL TREAT THE PARTIES'
STIPULATION AS A REQUEST TO WITHDRAW THE SUBJECT PETITION INSOFAR AS IT
APPLIES TO THE LATTER EMPLOYEE JOB CLASSIFICATION. THUS, I FIND IT
UNNECESSARY TO MAKE AN ELIGIBILITY DETERMINATION WITH RESPECT TO SUCH
JOB CLASSIFICATION. CF. ILLINOIS ARMY NATIONAL GUARD, 1ST BATTALION,
202ND AIR DEFENSE ARTILLERY, ARLINGTON HEIGHTS, ILLINOIS, A/SLMR NO. 370
AND NEW JERSEY DEPARTMENT OF DEFENSE, A/SLMR NO. 121.
/2/ SEE THE DEPARTMENT OF THE TREASURY, U.S. SAVINGS BONDS DIVISION,
A/SLMR NO. 185 AND VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION,
111TH ARTILLERY, A/SLMR NO. 69.
/3/ SEE DEPARTMENT OF THE NAVY, UNITED STATES NAVAL STATION, ADAK,
ALASKA, A/SLMR NO. 321 AND VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH
BATTALION, 111TH ARTILLERY, CITED ABOVE.
/4/ IN SUPPORT OF ITS CONTENTION THAT THE AIRCRAFT MECHANIC LEADERS,
WL-10, ARE SUPERVISORS, THE ACTIVITY SUBMITTED AN UNDATED
"CERTIFICATION," SIGNED BY THE SUPPORT FACILITY COMMANDER, WHICH
PURPORTED TO REFLECT THESE EMPLOYEES' SUPERVISORY DUTIES. INCLUDED IN
THE "CERTIFICATION" WERE CERTAIN GENERAL STATEMENTS WITH RESPECT TO THE
ALLEGED RESPONSIBILITIES OF THE INCUMBENTS IN THE DISPUTED
CLASSIFICATION, AS WELL AS A STATEMENT INDICATING THAT, IN THE FUTURE,
SUCH EMPLOYEES WOULD PERFORM JOB EVALUATIONS. THE ONLY TESTIMONY IN
SUPPORT OF THIS "CERTIFICATION" WAS OFFERED BY THE SUPPORT FACILITY
COMMANDER WHO IS NOT THE IMMEDIATE SUPERVISOR OF THE EMPLOYEES INVOLVED
AND WHO ACKNOWLEDGED THAT THE "CERTIFICATION" WAS PREPARED TO SUPPORT
THE SUBJECT PETITION. THE RECORD REFLECTS THAT THE ACTUAL JOB
DESCRIPTION FOR THE DISPUTED CLASSIFICATION IS IN MANY RESPECTS IN
DIRECT CONTRADICTION TO THE "CERTIFICATION." NONE OF THE INCUMBENT
EMPLOYEES IN THE DISPUTED JOB CLASSIFICATION TESTIFIED, NOR DID ANY
IMMEDIATE SUPERVISOR.
IN THESE CIRCUMSTANCES, I FIND A DOCUMENT SUCH AS THE "CERTIFICATION"
HEREIN, AND THE TESTIMONY OFFERED IN SUPPORT THEREOF, TO BE OF LIMITED
PROBATIVE VALUE, WHEN IN CONFLICT WITH TESTIMONY OF PERSONS HAVING
ACTUAL KNOWLEDGE OF THE WORK PERFORMED BY THE INCUMBENTS IN THE DISPUTED
CLASSIFICATION OR WITH THE OFFICIAL JOB DESCRIPTION.
/5/ THE ACTIVITY SUBMITTED A "CERTIFICATION" WHICH WAS PURPORTED TO
BE A LIST OF THE INCUMBENTS' SUPERVISORY DUTIES. IN ADDITION, THE
ACTIVITY SUBMITTED ALLEGED "CERTIFICATIONS" FOR THE THREE JOB
CLASSIFICATIONS TO BE DISCUSSED BELOW: PAYROLL CLERK, GS-6; MILITARY
PERSONNEL TECHNICIAN, GS-7; AND SUPPLY TECHNICIAN, GS-7. FURTHER, THE
OFFICIAL JOB DESCRIPTIONS OF THESE POSITIONS WERE ENTERED IN THE RECORD.
AS STATED IN FOOTNOTE 4 ABOVE, THE ACTIVITY'S "CERTIFICATIONS" WERE
CONSIDERED TO HAVE LIMITED PROBATIVE VALUE WHERE THEY ARE IN CONFLICT
WITH TESTIMONY OF PERSONS HAVING DIRECT KNOWLEDGE OF THE WORK PERFORMED
OR WITH THE OFFICIAL JOB DESCRIPTION.
/6/ SEE ST. LOUIS REGION, UNITED STATES CIVIL SERVICE COMMISSION, ST.
LOUIS, MISSOURI, A/SLMR NO. 162.
4 A/SLMR 375; P. 238; CASE NO. 71-2838(RO); APRIL 4, 1974.
PUGET SOUND SHIPYARD EMPLOYEES SERVICE COMMITTEE,
PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF NAVY,
BREMERTON, WASHINGTON
A/SLMR NO. 375
THE PETITIONER, TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL 672,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT, (IBT), SOUGHT TO
REPRESENT A UNIT OF ALL MECHANIC-ROUTEMEN AND WAREHOUSEMEN EMPLOYED BY
THE ACTIVITY AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON.
THE ACTIVITY CONTENDED THAT THE EMPLOYEES IN THE UNIT SOUGHT DID NOT
POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST APART FROM OTHER
NON-APPROPRIATED FUND (NAF) EMPLOYEES OF THE PUGET SOUND SHIPYARD
EMPLOYEES SERVICE COMMITTEE (COMMITTEE) AND THAT SUCH A UNIT WOULD NOT
PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
THE COMMITTEE IS ONE OF FIVE NAF ACTIVITIES AT THE PUGET SOUND NAVAL
SHIPYARD, BREMERTON, WASHINGTON (SHIPYARD). THE COMMITTEE IS DIVIDED
INTO FIVE SECTIONS, ONE OF WHICH (THE VENDING SECTION) CONTAINS THE FOUR
EMPLOYEES NAMED BY THE IBT AS WITHIN ITS CLAIMED UNIT.
THE ASSISTANT SECRETARY CONCLUDED THAT THE CLAIMED UNIT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
IN THIS CONNECTION, IT WAS NOTED THAT THERE ARE OTHER EMPLOYEES OF THE
COMMITTEE, IN ADDITION TO THOSE THE IBT SEEKS TO REPRESENT, WHO PERFORM
SIMILAR WORK AS THAT PERFORMED BY THE CLAIMED EMPLOYEES; THAT ALL
EMPLOYEES OF THE COMMITTEE, INCLUDING THOSE IN THE CLAIMED UNIT, ARE
UNDER THE SAME SUPERVISION; AND THAT ALL EMPLOYEES OF THE COMMITTEE ARE
COVERED BY THE SAME PERSONNEL POLICIES AND PRACTICES AND SHARE THE SAME
TERMS AND CONDITIONS OF EMPLOYMENT. MOREOVER, THE ASSISTANT SECRETARY
FOUND EVIDENCE OF NUMEROUS WORK CONTACTS BETWEEN THE EMPLOYEES SOUGHT
AND OTHER EMPLOYEES OF THE COMMITTEE. UNDER THESE CIRCUMSTANCES, THE
ASSISTANT SECRETARY CONCLUDED THAT THE CLAIMED EMPLOYEES DO NOT POSSESS
A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT TO SEPARATE THE
CLAIMED EMPLOYEES FROM OTHER NAF EMPLOYEES WITH WHOM THEY SHARE A
COMMUNITY OF INTEREST WOULD EFFECTUATE AN ARTIFICIAL DIVISION AMONG THE
EMPLOYEES, RESULTING IN A FRAGMENTED UNIT WHICH WOULD NOT PROMOTE
EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, HE
ORDERED THAT THE PETITION BE DISMISSED.
PUGET SOUND SHIPYARD EMPLOYEES SERVICE COMMITTEE,
PUGET SOUND NAVAL SHIPYARD,
DEPARTMENT OF NAVY,
BREMERTON, WASHINGTON
AND
TEAMSTERS, CHAUFFEURS AND HELPERS,
LOCAL 672, AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, INDEPENDENT /1/
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER PAT HUNT. 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 FILED BY THE
ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, TEAMSTERS, CHAUFFEURS AND HELPERS, LOCAL 672,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA, INDEPENDENT, HEREIN CALLED IBT,
SEEKS AN ELECTION IN A UNIT OF ALL MECHANIC-ROUTEMEN AND WAREHOUSEMEN
EMPLOYED BY THE ACTIVITY. THE ACTIVITY CONTENDS THAT THE EMPLOYEES IN
THE UNIT SOUGHT HAVE NO CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
APART FROM OTHER NON-APPROPRIATED FUND (NAF) EMPLOYEES OF THE PUGET
SOUND SHIPYARD EMPLOYEES SERVICE COMMITTEE (COMMITTEE) AND THAT SUCH A
UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY
OPERATIONS. THE ACTIVITY ALSO WOULD EXCLUDE ONE OF THE FOUR CLAIMED
EMPLOYEES AS BEING A SUPERVISOR WITHIN THE MEANING OF THE ORDER.
THE RECORD REVEALS THAT, IN ADDITION TO THE ALLEGED SUPERVISOR, THERE
ARE THREE EMPLOYEES WHO THE IBT NAMED AS BEING INCLUDED WITHIN THE
CLAIMED UNIT. THESE EMPLOYEES ARE ORGANIZATIONALLY WITHIN THE VENDING
SECTION OF THE COMMITTEE. /2/ THE COMMITTEE IS ONE OF FIVE NAF
ACTIVITIES AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON
(SHIPYARD). IN ADDITION TO THE COMMITTEE, THE OTHER NAF ACTIVITIES ARE:
THE NAVY EXCHANGE; THE COMMISSIONED OFFICERS MESS; THE ADMINISTRATIVE
DEPARTMENT CIVILIAN NON-APPROPRIATED FUND EMPLOYEES; AND THE TRANSIENT
FAMILY HOUSING ACTIVITY. /3/ ALL NAF EMPLOYEES AT THE SHIPYARD ARE
GOVERNED BY THE SAME NAVAL REGULATIONS WHICH PROVIDE FOR UNIFORM
PERSONNEL POLICIES AND PROCEDURES, PROMOTION PLANS, ANNUAL AND SICK
LEAVE CRITERIA, A STANDARD WAGE SYSTEM, AND THE SAME GRIEVANCE
PROCEDURES. FINAL AUTHORITY OVER ALL EMPLOYEES IN THE VARIOUS NAF
ACTIVITIES, INCLUDING EMPLOYEES OF THE COMMITTEE, RESTS WITH THE BASE
COMMANDER AND THERE ARE CENTRALIZED BOOKKEEPING AND ACCOUNTING SERVICES
FOR ALL OF THE NAF ACTIVITIES AT THE SHIPYARD.
THE RECORD REVEALS THAT THE COMMITTEE IS HEADED BY AN EMPLOYEE
SERVICES COMMITTEE MANAGER AND IS DIVIDED INTO FIVE SECTIONS:
BOOKKEEPING; VENDING; RECREATION; FOOD PREPARATION; AND FOOD
SERVICES. THE COMMITTEE HAS AS ITS MISSION THE PROVIDING OF FOOD AND
OTHER RELATED SERVICES, AND RECREATION AND WELFARE SERVICES, DESIGNED TO
CONTRIBUTE TO THE MORALE AND EFFICIENCY OF THE EMPLOYEES OF THE
SHIPYARD. IMMEDIATELY BELOW THE EMPLOYEE SERVICES COMMITTEE MANAGER IS
THE MANAGER OF VENDING ROUTE MANAGERS WHO ASSIGNS WORK TO THE EMPLOYEES
IN THE PETITIONED FOR UNIT. HOWEVER, THE EVIDENCE ESTABLISHES THAT THE
EMPLOYEE SERVICES COMMITTEE MANAGER HAS THE OVERALL DAY-TO-DAY
SUPERVISION AUTHORITY OVER ALL OF THE EMPLOYEES WITHIN THE COMMITTEE,
INCLUDING THOSE IN THE VENDING SECTION. THUS, THE RECORD INDICATES THAT
THE EMPLOYEES SERVICE COMMITTEE MANAGER IS RESPONSIBLE FOR THE HIRING,
FIRING AND DIRECTION OF ALL OF THE EMPLOYEES WITHIN THE COMMITTEE.
MOREOVER, HE HAS THE AUTHORITY TO DISCIPLINE EMPLOYEES; HAS THE FINAL
AUTHORITY WITH RESPECT TO THE APPROVAL OF JOB PERFORMANCE EVALUATIONS;
AND APPROVES SICK AND ANNUAL LEAVE, AS WELL AS ANY TRANSFERS, WHETHER
THEY BE PERMANENT OR TEMPORARY. ALTHOUGH THE MANAGER OF VENDING ROUTE
MANAGERS PURPORTEDLY IS DIRECTLY RESPONSIBLE FOR THE PETITIONED FOR
EMPLOYEES, THE RECORD REVEALS THAT THE INDIVIDUALS INVOLVED KNOW THEIR
JOBS, NEED NO DIRECTION IN FULFILLING THEIR DUTIES, AND THAT THE MANAGER
OF VENDING ROUTE MANAGERS, IN FACT, SPENDS THE MAJORITY OF HIS TIME
ENGAGED IN THE SAME WORK AS IS PERFORMED BY THOSE IN THE CLAIMED UNIT,
AS DISTINGUISHED FROM PERFORMING SUPERVISORY FUNCTIONS.
THE EVIDENCE ESTABLISHES THAT THE CLAIMED EMPLOYEES PERFORM THE
FUNCTION OF SUPPLYING THE VENDING MACHINES AT VARIOUS LOCATIONS IN THE
SHIPYARD WITH MATERIALS SUCH AS SANDWICHES, CIGARETTES, SOFT DRINKS,
COOKIES, ETC. THEY ALSO ARE CALLED UPON TO MAKE MINOR REPAIRS AND TO
COLLECT THE MONEY FROM THE VENDING MACHINES. IN THIS REGARD, THEY ARE
RESPONSIBLE FOR MAKING DECISIONS AS TO WHAT ITEMS WILL SELL BETTER
DEPENDING UPON THE TIME OF THE YEAR. THE RECORD REVEALS THAT THE JOB
FUNCTIONS OF THE EMPLOYEES IN THE CLAIMED UNIT REQUIRE LITTLE FORMAL
TRAINING AND THAT ANY TRAINING INVOLVED IS OBTAINED ON THE JOB.
FURTHER, THE EVIDENCE ESTABLISHES THAT THE CLAIMED EMPLOYEES COULD BE
INTERCHANGED READILY WITH OTHER EMPLOYEES OF THE COMMITTEE AT THE
SHIPYARD, AND THAT THEY HAVE NUMEROUS WORK CONTACTS WITH OTHER EMPLOYEES
OF THE COMMITTEE. MOREOVER, ALL EMPLOYEES OF THE COMMITTEE WORK SIMILAR
HOURS, WEAR UNIFORMS WHILE WORKING, AND TAKE COFFEE BREAKS, LUNCHES AND
OTHER BREAKS AT SIMILAR TIMES UNDER CENTRALLY PRESCRIBED RULES.
THE RECORD REVEALS THAT, IN ADDITION TO THE EMPLOYEES OF THE VENDING
SECTION SPECIFICALLY NAMED BY THE IBT AS WITHIN THE CLAIMED UNIT, THIS
SECTION EMPLOYS A BOOKKEEPER WHO DEVOTES SOME 65 PERCENT OF HER TIME TO
THE VENDING OPERATION. FURTHER, THERE ARE OTHER PERSONNEL EMPLOYED BY
THE COMMITTEE WHO PERFORM WORK IN CONNECTION WITH THE VENDING OPERATION
AND WHO ARE IN FREQUENT CONTACT WITH THE CLAIMED EMPLOYEES.
BASED ON THE FOREGOING, I FIND THAT THE CLAIMED UNIT IS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491. THUS, THE RECORD REFLECTS THERE ARE OTHER EMPLOYEES OF THE
COMMITTEE, IN ADDITION TO THOSE THE IBT SEEKS TO REPRESENT, WHO PERFORM
SIMILAR WORK AS THAT PERFORMED BY THE CLAIMED EMPLOYEES; THAT ALL
EMPLOYEES OF THE COMMITTEE, INCLUDING THOSE IN THE CLAIMED UNIT, ARE
UNDER THE SAME SUPERVISION; AND THAT ALL EMPLOYEES OF THE COMMITTEE ARE
COVERED BY THE SAME PERSONNEL POLICIES AND PRACTICES AND SHARE THE SAME
TERMS AND CONDITIONS OF EMPLOYMENT. MOREOVER, THERE IS EVIDENCE OF
NUMEROUS WORK CONTACTS BETWEEN THE EMPLOYEES SOUGHT AND OTHER EMPLOYEES
OF THE COMMITTEE. UNDER THESE CIRCUMSTANCES, I FIND THAT THE CLAIMED
EMPLOYEES DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
AND THAT TO SEPARATE THE CLAIMED EMPLOYEES FROM OTHER NAF EMPLOYEES WITH
WHOM THEY SHARE A COMMUNITY OF INTEREST WOULD EFFECTUATE AN ARTIFICIAL
DIVISION AMONG THE EMPLOYEES, RESULTING IN A FRAGMENTED UNIT WHICH WOULD
NOT PROMOTE EFFECTIVE DEALINGS OR EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL ORDER THAT THE IBT'S PETITION BE DISMISSED. /4/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 71-2838 (RO), BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 4, 1974
/1/ THE NAME OF THE PETITIONER APPEARS AS AMENDED AT THE HEARING.
/2/ ALTHOUGH THE EMPLOYEES NAMED BY THE IBT ARE ALL MECHANIC-ROUTEMEN
WITHIN THE VENDING SECTION, THE IBT, WHILE NOT SPECIFICALLY NAMING THE
INDIVIDUAL AS WITHIN THE CLAIMED UNIT, EXPRESSED "AN INTEREST" IN
REPRESENTING A WAREHOUSEMAN WHO IS EMPLOYED BY THE FOOD SERVICES SECTION
OF THE COMMITTEE.
/3/ THE NAVY EXCHANGE IS THE ONLY NAF ACTIVITY OF THE SHIPYARD WHOSE
EMPLOYEES ARE REPRESENTED EXCLUSIVELY BY A LABOR ORGANIZATION.
/4/ IN VIEW OF THE DISPOSITION HEREIN, IT WAS CONSIDERED UNNECESSARY
TO DETERMINE THE SUPERVISORY STATUS OF THE MANAGER OF VENDING ROUTE
MANAGERS.
4 A/SLMR 374; P. 230; CASE NO. 40-4700(CA); APRIL 4, 1974.
DIRECTORATE OF MAINTENANCE,
PRODUCTION BRANCH,
WARNER ROBINS AIR MATERIEL AREA,
ROBINS AIR FORCE BASE
A/SLMR NO. 374
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVES A COMPLAINT FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
(COMPLAINANT), ALLEGING THAT THE DIRECTORATE OF MAINTENANCE, PRODUCTION
BRANCH, WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE
(RESPONDENT) VIOLATED SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY
FRUSTRATING THE ATTEMPTS OF A DULY DESIGNATED UNION SHOP STEWARD TO
CONFER WITH THE RESPONDENT'S EMPLOYEES CONCERNING GRIEVANCES AND OTHER
PROBLEMS BY REQUIRING THE UNION SHOP STEWARD TO SECURE AN ADMINISTRATIVE
PERMIT BEFORE LEAVING HIS WORK AREA AND GOING INTO ANOTHER WORK AREA.
AT THE HEARING, THE COMPLAINANT ALLEGED ALSO THAT SECTION 19(A)(6) OF
THE ORDER HAD BEEN VIOLATED BECAUSE THE REQUIREMENT THAT AN EMPLOYEE
HAVE AN ADMINISTRATIVE PERMIT TO LEAVE HIS WORK AREA CONSTITUTED A
UNILATERAL CHANGE IN WORKING CONDITIONS. THE RESPONDENT DENIED THAT
THERE WAS ANY INTERFERENCE WITH EMPLOYEE OR UNION RIGHTS AND CONTENDED
THAT THE USE OF THE ADMINISTRATIVE PERMIT HAD EXISTED FOR SOME TIME AND
WAS USED FOR SECURITY AND ADMINISTRATIVE PURPOSES. FURTHER, THE
RESPONDENT MOVED TO DISMISS THE ALLEGATION MADE BY THE COMPLAINANT THAT
THERE WAS A UNILATERAL CHANGE IN WORKING CONDITIONS ON THE GROUNDS THAT
SUCH ALLEGATION WAS NOT INCLUDED WITHIN THE COMPLAINT AND, THEREFORE,
DID NOT COMPLY WITH THE REQUIREMENTS OF THE ASSISTANT SECRETARY'S
REGULATIONS.
THE ADMINISTRATIVE LAW JUDGE NOTED THAT THE REQUIREMENT OF AN
ADMINISTRATIVE PERMIT IN ORDER TO ENTER A WORK SECTION WITHIN THE
ACTIVITY'S SECURITY CONTROL AREA HAD BEEN APPLIED TO EMPLOYEES OTHER
THAN THOSE ON UNION BUSINESS AND THAT SUCH PERMIT COULD BE OBTAINED
WITHOUT UNDUE DELAY OR INCONVENIENCE. HE CONCLUDED THAT THE
ADMINISTRATIVE PERMIT REQUIREMENT WAS NOT UNREASONABLE NOR DID IT UNDULY
INTERFERE WITH THE UNION SHOP STEWARD'S PERFORMANCE OF UNION DUTIES.
FURTHER, HE CONCLUDED THAT THE PERMIT REQUIREMENT DID NOT, IN AND OF
ITSELF, CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
ACCORDINGLY, HE FOUND THAT THE REFUSAL BY THE RESPONDENT TO ALLOW A
UNION SHOP STEWARD TO ENTER A PARTICULAR WORK SECTION WITHIN THE
SECURITY CONTROL AREA AND SPEAK TO EMPLOYEES, WITHOUT FIRST HAVING
SECURED AN ADMINISTRATIVE PERMIT FROM HIS SUPERVISOR, DID NOT CONSTITUTE
A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
SIMILARLY, THE ADMINISTRATIVE LAW JUDGE REASONED THAT SINCE THE
REQUIREMENT OF THE ADMINISTRATIVE PERMIT WAS NOT, IN AND OF ITSELF,
VIOLATIVE OF SECTION 19(A)(1), IT COULD NOT BE CONCLUDED THAT SUCH
REQUIREMENT DEPRIVED EMPLOYEES OF THEIR RIGHT TO BE REPRESENTED BY THE
COMPLAINANT, NOR DEPRIVED THE COMPLAINANT OF ITS RIGHT TO REPRESENT THE
EMPLOYEES IN QUESTION, INASMUCH AS THE UNION STEWARD, BY ROUTINELY
OBTAINING THE PERMIT, COULD HAVE HAD ACCESS TO THE EMPLOYEES INVOLVED
FOR THE PURPOSE OF REPRESENTING THEM. ACCORDINGLY, THE ADMINISTRATIVE
LAW JUDGE FOUND THAT THE EXISTENCE OF THE PERMIT RULE AND ITS
APPLICATION IN THE CIRCUMSTANCES HEREIN, DID NOT CONSTITUTE A VIOLATION
OF SECTION 19(A)(6) OF THE ORDER.
THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE COMPLAINANT'S
ADDITIONAL SECTION 19(A)(6) ALLEGATION MADE AT THE HEARING WAS OUTSIDE
OF THE SCOPE OF THE COMPLAINT AND COULD NOT BE CONSIDERED. HOWEVER, HE
CONSIDERED THE MERITS OF THE ALLEGATION AND FOUND THAT THE REQUIREMENT
CONCERNING THE ADMINISTRATIVE PERMIT WAS A LONG-STANDING RESPONDENT
POLICY, AT LEAST AS IT WAS APPLIED IN A WORK SECTION WITHIN THE SECURITY
CONTROL AREA, AND, THEREFORE, DID NOT CONSTITUTE A UNILATERAL CHANGE IN
WORKING CONDITIONS. ACCORDINGLY, HE FOUND THAT THE RESPONDENT DID NOT
VIOLATE SECTION 19(A)(6) OF THE ORDER.
UPON REVIEW OF THE ENTIRE RECORD IN THIS PROCEEDING, INCLUDING THE
REPORT AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE, AND NOTING
THE ABSENCE OF EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE FINDINGS,
CONCLUSIONS, AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
DIRECTORATE OF MAINTENANCE,
PRODUCTION BRANCH,
WARNER ROBINS AIR MATERIEL AREA,
ROBINS AIR FORCE BASE
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987
ON FEBRUARY 4, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
ISSUED HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED. 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 FINDINGS, CONCLUSIONS,
AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-4700 (CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 4, 1974
IN THE MATTER OF
DIRECTORATE OF MAINTENANCE,
PRODUCTION BRANCH
WARNER ROBINS AIR MATERIEL AREA
ROBINS AIR FORCE BASE,
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 987,
MICHAEL A. DEEP, ESQUIRE
ATTORNEY-ADVISOR
OFFICE OF THE STAFF JUDGE ADVOCATE
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS WARNER ROBINS AIR
MATERIEL AREA
ROBINS AIR FORCE BASE, GEORGIA 31093
BOBBY HARNAGE, ESQUIRE
SPECIAL ASSISTANT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
P.O. BOX 1079
WARNER ROBINS, GEORGIA 31093
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED FEBRUARY 16, 1973, UNDER EXECUTIVE
ORDER 11491, AS AMENDED, (HEREINAFTER CALLED THE ORDER) BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987, (HEREINAFTER CALLED THE
COMPLAINANT OR UNION) AGAINST DIRECTORATE OF MAINTENANCE, PRODUCTION
BRANCH, WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE,
(HEREINAFTER CALLED THE RESPONDENT OR ACTIVITY), A NOTICE OF HEARING ON
COMPLAINT WAS ISSUED BY THE REGIONAL ADMINISTRATOR FOR THE ATLANTA
REGION ON MAY 4, 1973.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON JULY 11
AND 12, 1973, /1/ AT ROBINS AIR FORCE BASE, GEORGIA. ALL PARTIES WERE
REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD 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. BOTH PARTIES SUBMITTED BRIEFS.
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
RECOMMENDATION:
THE WARNER ROBINS AIR MATERIEL AREA IS DIVIDED INTO SEVERAL
DIRECTORATES, ONE OF WHICH IS THE DIRECTORATE OF MAINTENANCE. THE
DIRECTORATE OF MAINTENANCE IS DIVIDED INTO SEVERAL DIVISIONS, ONE OF
WHICH IS THE ELECTRONICS DIVISION. THE ELECTRONICS PRODUCTION BRANCH
(HEREINAFTER CALLED PRODUCTION BRANCH) IS A BRANCH WITHIN THE
ELECTRONICS DIVISION AND WAS HEADED BY BRANCH CHIEF OTTO R. BAILEY. THE
PRODUCTION BRANCH IS DIVIDED INTO SEVERAL SECTIONS INCLUDING AN AERO
MISSILE OVERHAUL SECTION SUPERVISED BY SECTION CHIEF OSCAR NOLES AND A
BOMB NAVIGATION SYSTEM SECTION UNDER THE SUPERVISION OF SECTION CHIEF
SHERMAN A. MORGAN. MR. DOUG COLLINS WAS A CIVILIAN EMPLOYEE OF THE
ACTIVITY WHO WORKED IN MR. NOLES' AERO MISSILE OVERHAUL SECTION; MR.
COLLINS WAS ALSO A SHOP STEWARD FOR THE UNION. THE UNION WAS AND IS THE
COLLECTIVE BARGAINING REPRESENTATIVE FOR A UNIT OF CIVILIAN EMPLOYEES OF
THE ACTIVITY, INCLUDING THOSE EMPLOYED IN THE AERO MISSILE OVERHAUL
SECTION AND THE BOMB NAVIGATION SYSTEMS SECTION. THERE WAS A COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE UNION AND THE ACTIVITY.
DURING OCTOBER 1972, BUILDING 640 ON THE ROBINS AIR FORCE BASE WAS
COMPOSED OF A MAIN BUILDING (HEREINAFTER CALLED BUILDING 640) AND AN
ANNEX, WHICH WAS ATTACHED. BUILDING 640 AND THE ANNEX HAD A SECURITY
FENCE AROUND IT WITH A GUARD AT THE GATE. /2/ BUILDING 640 CONSISTED OF
A HI-BAY AREA, A LO-BAY AREA AND A MEZZANINE OR BALCONY LOCATED ABOVE
THE LO-BAY AREA. DURING OCTOBER 1972, BECAUSE OF CONSTRUCTION WORK
BEING DONE THE HI-BAY AREA WAS FENCED OFF AND DOORS WERE WELDED CLOSED
SO IT WAS EFFECTIVELY CUT OFF FROM THE REST OF BUILDING 640 AND THE
ANNEX. IN ORDER TO GO FROM THE LO-BAY AREA OR MEZZANINE, OF BUILDING
640 TO THE ANNEX AN EMPLOYEE WOULD HAVE TO LEAVE BUILDING 640 AND ENTER
THE ANNEX FROM THE OUTSIDE. SUCH AN EMPLOYEE DID NOT HAVE TO LEAVE OR
EXIT THE SECURITY CONTROL AREA. MR. DOUG COLLINS WORKED IN A "CLEAN
ROOM" LOCATED ON THE MEZZANINE IN BUILDING 640.
ON OCTOBER 19, 1972, IN THE MORNING, MR. COLLINS ASKED HIS LINE
FOREWOMAN, MS. LOUER, IF HE COULD GO TO MR. MORGAN'S SECTION, WHICH IS
LOCATED IN THE ANNEX, TO SPEAK TO AN EMPLOYEE, MR. ROBINSON, ON UNION
BUSINESS. MS. LOUER GAVE HER PERMISSION TO MR. COLLINS.
MR. COLLINS THEN WENT TO THE ANNEX TO SPEAK TO MR. ROBINSON. MR.
ROBINSON'S LINE FOREMAN WAS MR. MILLER. THE RECORD DOES NOT ESTABLISH
THAT MR. COLLINS ASKED PERMISSION OF MR. MILLER TO SPEAK TO MR.
ROBINSON. /3/
MR. COLLINS HAD BEEN PREVIOUSLY ADVISED BY A MR. DUCKWORTH, MR.
COLLINS' UNCLE AND A CO-WORKER OF MR. ROBINSON, THAT MR. ROBINSON WAS
DISSATISFIED AND HAD A QUESTION AS TO WHETHER CERTAIN NOTATIONS MADE BY
THE ACTIVITY ON ONE OF HIS PERSONNEL FORMS WERE CORRECT AND THAT HE
WANTED TO SEE MR. COLLINS. MR. COLLINS AND THE UNION WERE THEN INVOLVED
WITH PROCESSING A GRIEVANCE ON BEHALF OF MR. DUCKWORTH THAT RAISED A
VERY SIMILAR POINT. /4/
MR. COLLINS MET WITH AND SPOKE TO MR. ROBINSON ABOUT HIS COMPLAINTS.
MR. MORGAN OBSERVED MR. COLLINS AND ASKED TWO OF THE SUPERVISORS, MR.
MILLER AND MR. POWELL IF THEY KNEW WHY MR. COLLINS WAS THERE. THEY
REPLIED IN THE NEGATIVE. AS MR. COLLINS WAS LEAVING HE WAS APPROACHED
BY MR. MORGAN WHO ASKED HIM IF HE HAD AN ADMINISTRATIVE PERMIT. /5/ MR.
COLLINS REPLIED THAT HE DID NOT, BUT THAT HIS SUPERVISOR HAD GIVEN HIM
ORAL PERMISSION. MR. MORGAN THEN INFORMED MR. COLLINS THAT HE WOULD
HAVE TO GET AN ADMINISTRATIVE PERMIT BEFORE HE COULD ENTER THE AREA.
MR. MORGAN, AFTER ATTEMPTING UNSUCCESSFULLY TO REACH SECTION CHIEF
NOLES, SPOKE TO MS. LOUER OVER THE TELEPHONE. HE ASCERTAINED THAT MR.
COLLINS WAS UNDER HER SUPERVISION, AND THEN INFORMED HER WHAT HAD
OCCURRED. MR. MORGAN THEN ADVISED MS. LOUER THAT MR. COLLINS COULD NOT
ENTER HIS SECTION AGAIN WITHOUT AN ADMINISTRATIVE PERMIT AND MS. LOUER
REPLIED "OKAY" AND APPARENTLY AGREED WITH MR. MORGAN.
UPON HIS RETURN TO THE CLEAN ROOM AREA, MR. COLLINS TOLD MS. LOUER
WHAT HAD OCCURRED. ACCORDING TO MR. COLLINS, AND UNDISPUTED BY MS.
LOUER'S TESTIMONY, SHE ADVISED HIM THAT SHE DIDN'T NEED TO GIVE HIM AN
ADMINISTRATIVE PERMIT. MR. COLLINS ALSO CALLED THE UNION OFFICE AND
ADVISED THEM AS TO WHAT HAD OCCURRED. HE WAS TOLD THAT THE UNION WOULD
CHECK IT OUT. ON OCTOBER 20TH, IN THE MORNING, MR. COLLINS CALLED THE
UNION AND WAS ADVISED THAT THERE WOULD NOT BE ANY PROBLEM ABOUT
ADMINISTRATIVE PERMITS. MR. COLLINS THEN TOLD MS. LOUER THAT HE HAD TO
VISIT MR. ROBINSON AGAIN. SHE GAVE HIM ORAL PERMISSION TO GO. /6/
MR. COLLINS WENT TO THE ANNEX AND ASKED MR. MILLER FOR PERMISSION TO
SEE MR. ROBINSON. MR. MILLER ASKED HIM IF HE HAD AN ADMINISTRATIVE
PERMIT. MR. COLLINS REPLIED THAT HE DID NOT. MR. MILLER THEN ADVISED
HIM THAT HE COULD NOT SEE MR. ROBINSON WITHOUT AN ADMINISTRATIVE
PERMIT. MR. COLLINS DEMANDED THE REASONS IN WRITING. THEY BOTH WENT TO
SEE MR. MILLER'S IMMEDIATE SUPERVISOR, MR. POWELL, WHO REPEATED THAT MR.
COLLINS WOULD NOT BE PERMITTED TO SEE MR. ROBINSON WITHOUT AN
ADMINISTRATIVE PERMIT, DESPITE MR. COLLINS' STATEMENTS THAT HIS
SUPERVISOR KNEW WHERE HE WAS.
MR. COLLINS RETURNED TO HIS WORK AREA BUT DID NOT ADVISE MS. LOUER AS
TO WHAT HAD OCCURRED OR THAT HE HAD BEEN UNABLE TO SEE MR. ROBINSON.
ON OCTOBER 24, 1972, /7/ MR. COLLINS ADVISED MS. LOUER THAT HE HAD TO
SEE TWO PEOPLE, MR. ROBINSON AND MR. DUCKWORTH, IN MR. MORGAN'S AREA.
SHE GAVE HIM ORAL PERMISSION. /8/
MR. COLLINS WENT TO THE ANNEX AND ASKED MR. WAYNE ROGERS, MR.
DUCKWORTH'S ACTING LINE FOREMAN, /9/ IF HE COULD SPEAK WITH MR.
DUCKWORTH. MR. ROGERS SAID HE COULD. MR. MILLER, WHO ON THIS DAY WAS
ACTING UNIT CHIEF AND HENCE MR. ROGERS' SUPERVISOR, OBSERVED MR.
COLLINS AND MR. DUCKWORTH HEADING FOR A "BREAK" AREA. MR. MILLER ASKED
MR. ROGERS IF MR. COLLINS HAD AN ADMINISTRATIVE PERMIT. MR. ROGERS
TOLD MR. MILLER THAT HE DID NOT KNOW. MR. MILLER INSTRUCTED MR. ROGERS
TO FIND OUT AND IF MR. COLLINS DID NOT HAVE AN ADMINISTRATIVE PERMIT, HE
WOULD HAVE TO LEAVE. MR. ROGERS APPROACHED MR. COLLINS AND ASKED FOR
THE PERMIT AND WHEN MR. COLLINS SAID HE HAD NONE, HE TOLD MR. COLLINS
THAT HE WOULD HAVE TO LEAVE AND MR. DUCKWORTH THAT HE SHOULD RETURN TO
WORK.
MR. COLLINS THEN APPROACHED MR. MILLER AND ASKED IF HE COULD SEE MR.
ROBINSON. MR. MILLER ASKED IF MR. COLLINS HAD AN ADMINISTRATIVE PERMIT.
MR. COLLINS SHOWED HIM AN AUTHORIZATION FROM MR. ROBINSON TO REPRESENT
HIM IN A GRIEVANCE. THIS AUTHORIZATION WHICH MR. ROBINSON HAD SIGNED
WAS DELIVERED TO MR. COLLINS BY ANOTHER EMPLOYEE. THERE IS SOME
QUESTION WHETHER MR. ROBINSON INTENDED TO FILE A GRIEVANCE AND WHETHER
HE UNDERSTOOD THE NATURE OF THE AUTHORIZATION. THE AUTHENTICITY OF THE
AUTHORIZATION WAS NOT QUESTIONED AT THE TIME. IN ANY EVENT IT IS CLEAR
THAT MR. ROBINSON WAS DISPLEASED WITH THE NOTATION ON HIS PERSONNEL FORM
AND WAS, THROUGH THE UNION, TRYING TO ASCERTAIN WHAT THE FACTS WERE,
BEFORE HE DECIDED WHETHER TO FORMALLY FILE A GRIEVANCE.
MR. MILLER ADVISED MR. COLLINS, THAT DESPITE THE AUTHORIZATION FROM
MR. ROBINSON, HE STILL NEEDED AN ADMINISTRATIVE PERMIT AND COULD NOT
THEREFORE SEE MR. ROBINSON. MR. COLLINS RETURNED TO THE CLEAN ROOM
AREA. ON OCTOBER 24TH, AFTER MR. COLLINS HAD LEFT TO SEE MR. ROBINSON,
AND MR. DUCKWORTH, MR. SANDERS, MS. LOUER'S IMMEDIATE SUPERVISOR ADVISED
HER, THAT SHE SHOULD ISSUE ADMINISTRATIVE PERMITS TO ANYONE MOVING FROM
ONE WORK AREA TO ANOTHER WORK AREA WITHIN THE SECURITY CONTROL AREA.
FROM THAT TIME ON UNTIL FEBRUARY 21, 1973, /10/ MS. LOUER ISSUED
ADMINISTRATIVE PERMITS TO EMPLOYEES, INCLUDING MR. COLLINS, WHO WERE
GOING TO OTHER WORK AREAS WITHIN THE SECURITY CONTROL AREA, WHETHER IT
WAS ON UNION BUSINESS OR FOR OTHER REASONS. SHE HAD AUTHORITY TO ISSUE
THESE ADMINISTRATIVE PERMITS AND THE ISSUANCE WAS A ROUTINE MATTER THAT
TOOK HER ONLY A FEW MINUTES. /11/ THERE WAS NO EVIDENCE THAT AFTER
OCTOBER 24TH, EITHER MR. COLLINS OR ANY OTHER UNION STEWARD OR AGENT WAS
EVER DENIED AN ADMINISTRATIVE PERMIT OR UNDULY DELAYED OR INCONVENIENCED
IN OBTAINING ONE.
SECTION CHIEF SHERMAN A. MORGAN TESTIFIED THAT IN THE BOMB NAVIGATION
SYSTEMS SECTION IT HAS BEEN THE PRACTICE FOR SIX OR EIGHT YEARS TO
REQUIRE THAT ADMINISTRATIVE PERMITS /12/ BE SHOWN BY THOSE EMPLOYEES WHO
ENTER THAT WORK AREA WHO ARE NOT PERFORMING PART OF THEIR NORMAL OR
USUAL EMPLOYEE DUTIES. /13/ THIS WAS HIS INTERPRETATION OF THE
ACTIVITY'S POLICY /14/ AND HE APPLIED IT TO EMPLOYEES UNDER SUPERVISION
AND REQUIRED THE PERMIT OF THOSE WHO ENTERED HIS AREA. MR. MORGAN
TESTIFIED THAT THE ADMINISTRATIVE PERMIT SERVED PRIMARILY FOR EMPLOYEE
CONTROL /15/ BUT ALSO WAS USED FOR BILLING PURPOSES AND AS A PART OF THE
SECURITY PROGRAM. /16/ MR. MORGAN HAD IN THE PAST STRESSED TO THE
SUPERVISORS IN HIS SECTION THAT THEY SHOULD BE MORE DILIGENT IN
CONTROLLING THEIR EMPLOYEES AND THEIR AREAS.
MR. MORGAN'S UNDERSTANDING AND INTERPRETATION OF THE USE OF THE
ADMINISTRATIVE PERMIT, AS WELL AS HIS CONTENTION THAT IT HAD BEEN SO
USED FOR A NUMBER OF YEARS WAS CONFIRMED AND SUBSTANTIATED BY SECTION
CHIEF NOLES OF THE AERO MISSILE OVERHAUL SECTION AND BY MR. O. R.
BAILEY, CHIEF OF THE PRODUCTION BRANCH. MR. BAILEY IS BOTH MR. NOLES'
AND MR. MORGAN'S IMMEDIATE SUPERVISOR.
MS. LOUER TESTIFIED THAT HER PRACTICE /17/ HAD BEEN TO USE AND ISSUE
ADMINISTRATIVE PERMITS ON OCCASION. SHE STATED, HOWEVER, THAT NORMALLY
AN EMPLOYEE WHO WANTED TO GO TO A DIFFERENT WORK AREA BUT WHO WAS GOING
TO STAY IN THE SECURITY CONTROL AREA ONLY NEEDED HER ORAL PERMISSION AND
NOT AN ADMINISTRATIVE PERMIT.
THE COMPLAINT HEREIN ALLEGES THAT THE ACTIVITY VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER. THE COMPLAINT SETS FORTH THE FACTS
RELATING TO MR. COLLINS ATTEMPTS ON OCTOBER 19, 29, AND 24, 1972, TO SEE
MR. ROBINSON AND MR. DUCKWORTH AND THAT VARIOUSLY MR. MORGAN, MR.
MILLER, MR. POWELL, AND MR. ROGERS DID NOT PERMIT MR. COLLINS TO SEE MR.
ROBINSON AND MR. DUCKWORTH UNLESS HE HAD AN ADMINISTRATIVE PERMIT. THE
COMPLAINT THEN CONCLUDED:
"MR. MORGAN'S ACTIONS INTERFERED WITH MR. COLLINS, MR. DUCKWORTH,
AND MR. ROBINSON IN THE
EXERCISE OF THEIR RIGHTS AS ASSURED BY THE ORDER AND DISCOURAGED
MEMBERSHIP IN THE LABOR
ORGANIZATION BY DISCRIMINATION AGAINST MR. COLLINS IN REGARDS TO
CONDITIONS OF
EMPLOYMENT. SUCH ACTIONS VIOLATE SECTIONS 19(A)(1), 19(A)(2), AND
19(A)(6) OF THE ORDER.
"THE REMEDIES SOUGHT BY THE UNION ARE THAT THE EMPLOYER BE FOUND IN
VIOLATION OF SECTION
19(A) OF THE ORDER; THAT HE BE BE ORDERED TO CEASE AND DESIST FROM
SUCH VIOLATIONS; THAT THE
EMPLOYEES BE ADVISED OF THEIR RIGHTS AND THEY SHALL BE PROTECTED IN
THE EXERCISE OF THOSE
RIGHTS; AND, THE FINDINGS AND ACTION TAKEN BE POSTED ON ALL OFFICIAL
BULLETIN BOARDS ON ROBINS
AIR FORCE BASE."
AT THE HEARING THE UNION STATED THAT THIS REQUIREMENT THAT MR.
COLLINS HAVE AN ADMINISTRATIVE PERMIT VIOLATED SECTION 19(A)(1) OF THE
ORDER INSOFAR AS IT INTERFERES WITH EMPLOYEES DUCKWORTH'S AND ROBINSON'S
DESIRE TO BE REPRESENTED BY THE UNION IN THE CONSIDERATION OF THEIR
DISSATISFACTION WITH CERTAIN WORKING CONDITIONS. FURTHER THE PERMIT
REQUIREMENT SUBJECTED UNION SHOP STEWARD COLLINS TO SURVEILLANCE AND TO
MORE ONEROUS CONDITIONS THAN OTHER EMPLOYEES WHO WERE NOT ENGAGED IN
UNION ACTIVITIES. THIS CONDUCT ALSO ALLEGEDLY CONSTITUTED A VIOLATION
OF SECTION 19(A)(6) OF THE ORDER BY INTERFERING WITH THE EMPLOYEES' AND
THE UNION'S RIGHTS TO PARTICIPATE AND BE REPRESENTED IN A GRIEVANCE.
AT THE HEARING HEREIN THE UNION, IN ADDITION, ALLEGED THAT SECTION
19(A)(6) OF THE ORDER HAD BEEN VIOLATED BECAUSE THIS REQUIREMENT THAT AN
EMPLOYEE HAVE AN ADMINISTRATIVE PERMIT TO LEAVE HIS WORK AREA
CONSTITUTED A UNILATERAL CHANGE IN WORKING CONDITIONS.
THE ACTIVITY DENIED THAT THERE WAS ANY INTERFERENCE WITH EMPLOYEE OR
UNION RIGHTS, AND CONTENDS THAT THE USE OF ADMINISTRATIVE PERMIT HAD
EXISTED FOR SOME TIME AND WAS USED FOR SECURITY AND ADMINISTRATIVE
PURPOSES. THE ACTIVITY ALSO MOVED TO DISMISS THE ALLEGATION THAT THERE
WAS A UNILATERAL CHANGE OF WORKING CONDITIONS ON THE GROUNDS THAT IT WAS
NOT INCLUDED WITHIN THE COMPLAINT HEREIN, AND THEREFORE, DID NOT COMPLY
WITH THE REQUIREMENTS OF THE RULES AND REGULATIONS (29 CFR 203.2(A)(3)
AND 203.3(A)(3)) WHICH STATE THAT THE CHARGE AND COMPLAINT SHALL CONTAIN
A CLEAR AND CONCISE STATEMENT OF THE FACTS CONSTITUTING THE ALLEGED
UNFAIR LABOR PRACTICE INCLUDING THE TIME AND PLACE OF THE PARTICULAR
ACTS.
SHOP STEWARD COLLINS WAS REQUIRED TO GET AN ADMINISTRATIVE PERMIT
BEFORE HE COULD LEAVE HIS WORK AREA IN BUILDING 640 TO GO TO THE ANNEX
TO SEE EMPLOYEES CONCERNING EXISTING OR POTENTIAL GRIEVANCES. THE
RECORD ESTABLISHES THAT THE PERMIT COULD BE OBTAINED EASILY FROM MR.
COLLIN'S IMMEDIATE SUPERVISOR, LINE FOREWOMAN LOUER, AND ONLY TOOK A FEW
MINUTES TO SECURE. THE ACTIVITY CONTENDS THAT THE PERMIT ALLOWS THE
SUPERVISOR WHO ISSUES IT TO KEEP A BETTER TRACK OF THE EMPLOYEES UNDER
HIS SUPERVISION AND ASSISTS THE SUPERVISOR OF THE AREA TO WHICH THE
EMPLOYEE IS GOING TO KEEP TRACK OF "STRANGERS" ENTERING HIS AREA, AND TO
KNOW PRECISELY WHY THE STRANGER IS THERE. THE RECORD ESTABLISHES THAT
AT LEAST WITH RESPECT TO MR. MORGAN'S AREA THE PERMIT WAS ALSO REQUIRED
OF EMPLOYEES OTHER THAN THOSE ON UNION BUSINESS. IN THESE CIRCUMSTANCES
THERE HAS BEEN NO SHOWING THAT THE REQUIREMENT THAT THE PERMIT BE
SECURED WAS AN UNREASONABLE REQUIREMENT OR UNDULY INTERFERED WITH THE
PERFORMANCE BY THE UNION SHOP STEWARDS OF THEIR UNION DUTIES OR WAS IN
ANYWAY ONEROUS INCONVENIENT. FURTHER, NOTHING MORE WAS REQUIRED OF
UNION STEWARDS OR AGENTS THAN OF OTHER EMPLOYEES, NOR DID THE OBTAINING
OF A PERMIT CAUSE ANY UNDUE DELAY OR INCONVENIENCE. IT MUST BE FURTHER
NOTED THAT AS A PRACTICE ORAL PERMISSION HAD BEEN SECURED BY MR. COLLINS
AND THERE WAS NO CONTENTION THAT THE REQUIREMENT THAT ORAL PERMISSION BE
OBTAINED INTERFERED WITH ANYONE'S PROTECTED ACTIVITY. THE RECORD DOES
NOT ESTABLISH THAT THE REQUIREMENT THAT THE PERMISSION BE IN WRITING WAS
IN ANY SUBSTANTIAL DEGREE MORE ONEROUS OR INCONVENIENT OR IN ANY OTHER
WAY INTERFERED WITH PROTECTED RIGHTS MORE THAN THE REQUIREMENT THAT ORAL
PERMISSION BE OBTAINED.
THE ONLY INCIDENTS OF ACTUAL INTERFERENCE ALLEGED ARE THAT ON OCTOBER
20 AND 24, 1972, MR. COLLINS WAS PREVENTED FROM SEEING MR. DUCKWORTH AND
MR. ROBINSON BECAUSE HE DID NOT HAVE A PERMIT. ANY ALLEGED INTERFERENCE
WAS PRESUMABLY MS. LOUER'S ALLEGED REFUSAL TO GIVE MR. COLLINS AN
ADMINISTRATIVE PERMIT. THE CREDITED EVIDENCE ESTABLISHES THAT MS.
LOUER WAS NOT ADVISED THAT MR. COLLINS WAS ACTUALLY BEING PREVENTED FROM
SEEING THE TWO EMPLOYEES NOR DID MR. COLLINS SPECIFICALLY REQUEST SUCH
AN ADMINISTRATIVE PERMIT.
IT IS CONCLUDED, THEREFORE, THAT MS. LOUER DID NOT REFUSE TO ISSUE
MR. COLLINS AN ADMINISTRATIVE PERMIT, AND THUS DID NOT IN ANY WAY
INTERFERE WITH HIS OR ANY OTHER EMPLOYEE'S PROTECTED RIGHTS. /18/
FURTHER SINCE, AS CONCLUDED ABOVE, THE REQUIREMENT THAT AN
ADMINISTRATIVE PERMIT BE SECURED DID NOT IN AND OF ITSELF CONSTITUTE A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER, MR. MORGAN'S REFUSAL TO
ALLOW MR. COLLINS TO ENTER HIS SECTION TO SPEAK TO THE TWO EMPLOYEES
UNLESS MR. COLLINS FIRST SECURED SUCH A PERMIT FROM HIS SUPERVISOR DID
NOT CONSTITUTE A VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
SIMILARLY SINCE, AS DISCUSSED ABOVE, THE REQUIREMENT THAT MR.
COLLINS SECURE AN ADMINISTRATIVE PERMIT DID NOT VIOLATE SECTION 19(A)(1)
OF THE ORDER, WAS NEITHER ONEROUS NOR INCONVENIENT, AND WAS NO MORE THAN
WAS REQUIRED OF OTHER EMPLOYEES WHO WISHED TO LEAVE THEIR WORK AREA ON
MATTERS OTHER THAN THEIR NORMAL JOBS; IT CANNOT BE CONCLUDED THAT THIS
REQUIREMENT, AS APPLIED BY MR. MORGAN DEPRIVED EITHER MR. DUCKWORTH OR
MR. ROBINSON OF ANY OF THEIR RIGHTS TO BE REPRESENTED BY THE UNION OR
DEPRIVED OF THE UNION OF ITS RIGHTS TO REPRESENT EMPLOYEES. BY MERELY
OBTAINING THE PERMIT, WHICH AS DESCRIBED ABOVE IS A ROUTINE MATTER,
UNION SHOP STEWARD COLLINS COULD HAVE FREELY GONE TO OTHER WORK AREAS
AND MR. DUCKWORTH AND MR. ROBINSON COULD HAVE BEEN REPRESENTED BY THE
UNION. THEREFORE, IT MUST BE CONCLUDED THAT THE EXISTENCE OF THE PERMIT
RULE ITSELF AND ITS APPLICATION BY MR. MORGAN DID NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
FINALLY THE UNION CONTENDS, AS SET FORTH ORALLY AT THE HEARING, THAT
THE REQUIREMENT OF AN ADMINISTRATIVE PERMIT WAS A UNILATERAL CHANGE OF
WORKING CONDITIONS AND THEREFORE CONSTITUTED A VIOLATION OF SECTION
19(A)(6) OF THE ORDER. THE ACTIVITY FIRST CONTENDED THAT THIS
ALLEGATION WAS OUTSIDE THE SCOPE OF THE COMPLAINT AND MOVED AT THE
HEARING THAT THIS ALLEGATION BE DISMISSED. THE UNDERSIGNED RESERVED
RULING ON THIS MOTION AND ADVISED THE ACTIVITY TO PRODUCE ANY EVIDENCE
IT DEEMED RELEVANT WITH RESPECT TO THE MERITS OF THIS ALLEGED VIOLATION.
FURTHER, IF ANY ADDITIONAL TIME WAS NEEDED AND WAS REQUESTED BY THE
ACTIVITY IN ORDER TO ALLOW IT TO DEFEND AGAINST THIS ALLEGATION IT WOULD
BE CONSIDERED. /19/
THE RULES AND REGULATIONS REQUIRE THAT THE COMPLAINT SHALL CONTAIN A
CLEAR AND CONCISE STATEMENT OF THE FACTS CONSTITUTING THE ALLEGED UNFAIR
LABOR PRACTICE. THE SUBJECT COMPLAINT ADDRESSED ITSELF TO THE FACT THAT
THE REQUIREMENT THAT MR. COLLINS HAVE AN ADMINISTRATIVE PERMIT WAS USED
BY MR. MORGAN TO PREVENT MR. COLLINS, A SHOP STEWARD, FROM SEEING TWO
EMPLOYEES CONCERNING ALLEGED GRIEVANCES. THE COMPLAINT ALLEGES THAT
THIS INTERFERED WITH THE EMPLOYEES' RIGHT TO BE REPRESENTED BY THE UNION
AND THE UNION'S RIGHT TO REPRESENT THESE EMPLOYEES. THERE IS NO
ALLEGATION, OR EVEN MENTION THAT THIS REQUIREMENT WAS A UNILATERAL
CHANGE OF EXISTING CONDITIONS, NOR DID THE COMPLAINT ALLEGE THAT THE
ACTIVITY FAILED TO NOTIFY THE UNION OF ANY SUCH CHANGE OR THAT THE
ACTIVITY REFUSED TO DISCUSS AND NEGOTIATE CONCERNING ANY SUCH CHANGE.
ALTHOUGH IT MAY BE ARGUED THAT THE COMPLAINT SHOULD BE READ BROADLY
AND THAT THE PRECISION REQUIRED OF PLEADINGS IN OTHER COURTS SHOULD NOT
APPLY HERE, NEVERTHELESS, THE COMPLAINT SERVES A NUMBER OF VALID AND
IMPORTANT PURPOSES. IT PERMITS THE REGIONAL OFFICE OF THE DEPARTMENT OF
LABOR TO INVESTIGATE WHETHER THERE IS A PRIMA FACIA CASE; IT PERMITS
THE RESPONDENT TO REPLY AND TO KNOW WHAT PRECISELY IT IS CHARGED WITH;
AND IT ENCOURAGES AND PERMITS THE PARTIES TO CONSIDER SETTLING THE
MATTER PRIOR TO THE HEARING. IN THE INSTANT CASE IT IS CONCLUDED THAT
THE "UNILATERAL CHANGE" ALLEGATION IS SO FAR REMOVED FROM THE
ALLEGATIONS CONTAINED IN THE COMPLAINT THAT THE COMPLAINT DID NOT ADVISE
THE ACTIVITY OF THIS ALLEGED VIOLATION OF THE ORDER. THEREFORE, TO
PERMIT A FINDING WITH RESPECT TO IT WOULD TOTALLY FRUSTRATE THE PURPOSES
OF REQUIRING A COMPLAINT AND WOULD MAKE ANY COMPLAINT VIRTUALLY
MEANINGLESS. THEREFORE IT IS CONCLUDED THAT THIS "UNILATERAL CHANGE"
ALLEGATION IS OUTSIDE AT THE SCOPE OF THE COMPLAINT AND CANNOT BE
CONSIDERED IN THIS CASE.
HOWEVER, EVEN IF THIS ALLEGED VIOLATION WERE TO BE CONSIDERED, /20/
THE RECORD ESTABLISHES THAT THE REQUIREMENT CONCERNING THE
ADMINISTRATIVE PERMIT WAS A LONG STANDING ACTIVITY POLICY, AT LEAST IN
MR. BAILEY'S BRANCH, INCLUDING BOTH MR. MORGAN'S AND MR. NOLE'S
SECTIONS. /21/ FURTHER, ALTHOUGH MS. LOUER DID NOT ROUTINELY REQUIRE
THAT SHE ISSUE A WRITTEN ADMINISTRATIVE PERMIT WHEN AN EMPLOYEE WISHED
TO LEAVE THE WORK AREA, WHEN NOT IN THE PERFORMANCE OF HIS ROUTINE JOB
DUTIES, SHE DID ISSUE THEM ON OCCASION. FURTHER MS. LOUER ALWAYS
REQUIRED THAT SHE BE ASKED FOR AND GIVE ORAL PERMISSION WHEN AN EMPLOYEE
WISHED TO LEAVE THE WORK AREA. AS DISCUSSED ABOVE THE GRANTING OF THE
ADMINISTRATIVE PERMIT BY THE SUPERVISOR WAS A ROUTINE AND QUICK
PROCEDURE AND WAS NOT SUBSTANTIALLY DIFFERENT OR MORE ONEROUS THAN THE
SECURING OF ORAL PERMISSION FROM A SUPERVISOR. IN THESE CIRCUMSTANCES
THE RECORD ESTABLISHES THAT THERE WAS NO UNILATERAL CHANGE OF WORKING
CONDITION CONCERNING THE REQUIREMENT OF AN ADMINISTRATIVE PERMIT. /22/
MOREOVER THE UNION SUBMITTED NO EVIDENCE TO SHOW THAT EVEN IF THERE HAD
BEEN A CHANGE OF WORKING CONDITIONS THAT THE ACTIVITY HAD NOT NOTIFIED
THE UNION IN ADVANCE OF SUCH ALLEGED CHANGE OR HAD REFUSED TO BARGAIN
WITH THE UNION ABOUT SUCH CHANGE.
THEREFORE IT IS CONCLUDED THAT THE RECORD FAILS TO ESTABLISH THAT THE
ACTIVITY ENGAGED IN ANY CONDUCT THAT CONSTITUTED A VIOLATION OF SECTIONS
19(A)(1) AND (6) 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: FEBRUARY 4, 1974
WASHINGTON, D.C.
/1/ THE TRANSCRIPT OF THIS HEARING, ERRONEOUSLY STATES THAT THE
SUBJECT HEARING WAS HELD AS SCHEDULED, ON JULY 12 AND 13, 1973. WITH
THE CONSENT OF BOTH PARTIES, HOWEVER, THE HEARING WAS ACTUALLY HELD ON
JULY 11 AND 12, 1973.
/2/ THE AREA WITHIN THE SECURITY FENCE WILL BE CALLED HEREIN, THE
SECURITY CONTROL AREA. THE SUPERVISORS WITHIN THE SECURITY CONTROL AREA
WERE VERY SECURITY CONSCIOUS.
/3/ IN THIS REGARD, AT FIRST MR. COLLINS TESTIFIED THAT HE DID
REQUEST IT OF MR. MILLER. THEN HE TESTIFIED THAT HE WAS NOT SURE HE
REQUESTED IT OF MR. MILLER AND COULD NOT IDENTIFY WHOM HE ASKED. MR.
MILLER IN HIS TESTIMONY DENIES HE WAS EITHER ASKED BY MR. COLLINS OR
GRANTED SUCH PERMISSION. I CREDIT MR. MILLER'S VERSION, BECAUSE MR.
COLLINS' RECOLLECTION DID NOT SEEM AS CLEAR.
/4/ MR. DUCKWORTH'S GRIEVANCE HAD BEEN FORMALLY FILED ON OCTOBER 17,
1972.
/5/ THE ADMINISTRATIVE PERMIT REFERRED TO A DOCUMENT THAT THE
ACTIVITY HAD ASSIGNED THE NUMBER FORM-368.
/6/ MR. COLLINS TESTIFIED THAT HE REQUESTED AN ADMINISTRATIVE PERMIT,
BUT THAT MS. LOUER SAID SHE WAS NOT GOING TO ISSUE HIM ONE, THAT HER
ORAL PERMISSION WAS SUFFICIENT. MS. LOUER DENIED THAT MR. COLLINS ASKED
FOR A PERMIT. IN THIS REGARD, I CREDIT MS. LOUER, ESPECIALLY IN LIGHT
OF THE FACTS THAT MR. COLLINS HAD APPARENTLY BEEN ADVISED BY THE UNION
THAT THERE WOULD NOT BE ANY FURTHER PROBLEMS ABOUT ADMINISTRATIVE
PERMITS AND THAT MS. LOUER WAS CALLED TO TESTIFY ON BEHALF OF THE UNION
AND APPEARED TO BE AN IMPARTIAL WITNESS WITH AN ACCURATE RECALL OF THE
EVENTS.
/7/ THERE WAS NO WORK ON OCTOBER 21, 22, AND 23, 1972, BECAUSE IT WAS
A WEEKEND AND A MONDAY HOLIDAY.
/8/ AGAIN MR. COLLINS CONTENDS THAT HE ASKED FOR AN ADMINISTRATIVE
PERMIT AND THAT MS. LOUER SAID HE DID NOT NEED ONE. MS. LOUER TESTIFIED
THAT HE DID NOT ASK FOR SUCH A PERMIT.
/9/ THE REGULAR LINE FOREMAN WAS ABSENT.
/10/ AS OF FEBRUARY 21, 1973, THE ACTIVITY APPARENTLY CEASED
REQUIRING THE USE OF ADMINISTRATIVE PERMITS FOR SHOP STEWARDS HANDLING
MATTERS UNDER ARTICLE 7 OF THE COLLECTIVE BARGAINING AGREEMENT, UNLESS
THEY LEFT THE SECURITY CONTROL AREA.
/11/ MR. COLLINS STATED THAT ON THE FIRST ONE OR TWO OCCASIONS HE
REQUESTED A PERMIT MS. LOUER ASKED HER SUPERVISOR. MS. LOUER DENIES SHE
EVER HAD TO CHECK, AND, IN ANY EVENT, MR. COLLINS STATED THAT ON THESE
ALLEGED OCCASIONS, IT ONLY TOOK A FEW MINUTES TO GET THE PERMIT.
/12/ EITHER FORM-368 OR THE PRIOR FORM THAT SERVED THE SAME PURPOSE.
/13/ WHEN "STRANGER" EMPLOYEES WERE TO ENTER THIS AREA TO PERFORM
DUTIES RELATED TO THEIR JOB FUNCTIONS, THEY WERE USUALLY ESCORTED OR
ADVANCE ARRANGEMENTS HAD BEEN MADE THROUGH THE SUPERVISORS.
/14/ THE ACTIVITY'S POLICY WAS SET FORTH IN "MAOI 11-9" DATED JULY
22, 1970, WHICH IS ATTACHED HERETO TO "APPENDIX A".
/15/ IT PROVIDED A MEANS FOR A SUPERVISOR TO KNOW WHERE HIS EMPLOYEES
WERE AND WHAT THEY WERE DOING THERE AND WHY STRANGER EMPLOYEES WERE IN
HIS AREA.
/16/ IT IS NOT NECESSARY TO DECIDE WHETHER THE USE OF THE
ADMINISTRATIVE PERMIT EFFICIENTLY PERFORMED THESE FUNCTIONS.
/17/ ARRIVED AT AFTER CHECKING WITH HER IMMEDIATE SUPERVISOR, MR.
SANDERS.
/18/ EVEN ASSUMING THAT MS. LOUER DID ON THESE TWO OCCASIONS REFUSE
TO ISSUE A PERMIT, THEY WERE ISOLATED INCIDENTS THAT RESULTED FROM HER
CONFUSION AS TO WHEN SUCH PERMITS WERE REQUIRED. THIS CONFUSION WAS
CLEARED UP ON OCTOBER 24 AND FROM THAT TIME ON MR. COLLINS RECEIVED
SUCH PASSES PROMPTLY WHENEVER THEY WERE REQUIRED AND REQUESTED.
THEREFORE, ANY INTERFERENCE WITH PROTECTED RIGHTS WAS DE MINIMUS AND NO
FINDING THAT THERE WAS A VIOLATION OF SECTION 19(A)(1) OF THE ORDER IS
WARRANTED.
/19/ NO SUCH ADDITIONAL TIME WAS REQUESTED.
/20/ THIS MATTER WAS LITIGATED FULLY AT THE HEARING.
/21/ ALTHOUGH MR. COLLINS TESTIFIED THAT HE HAD IN THE PAST BEEN IN
MR. MORGAN'S SECTION TO SPEAK TO EMPLOYEES ON UNION MATTERS, AND NO
PERMIT WAS REQUIRED, HE TESTIFIED THAT HE DID NOT RECALL MR. MORGAN'S
BEING AWARE OF HIS PRESENCE. FURTHER ON ONE OCCASION WHEN MR. COLLINS
MET WITH MR. MORGAN AND NO PERMIT WAS REQUESTED, MR. COLLINS WAS THERE
WITH ANOTHER UNION SHOP STEWARD AND A FEW OTHER EMPLOYEES TO DISCUSS
POSSIBLE GRIEVANCES WITH MR. MORGAN AND THE APPOINTMENT AND ARRANGEMENTS
FOR THE MEETING HAD BEEN IN ADVANCE BY TELEPHONE. MR. MORGAN WAS
EXPECTING THEM AND HAD BEEN ADVISED IN ADVANCE AS TO THE REASON FOR THE
MEETING.
/22/ IN FEBRUARY 1973, THE ADMINISTRATIVE PERMIT REQUIREMENT WAS DONE
AWAY WITH, SO TO THAT EXTENT THAT IT IS ALLEGED TO BE A CONTINUING
VIOLATION, THE MATTER IS MOOT.
4 A/SLMR 373; P. 225; CASE NO. 70-2481; APRIL 4, 1974.
DEPARTMENT OF THE NAVY,
HUNTERS POINT NAVAL SHIPYARD
A/SLMR NO. 373
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY AN
INDIVIDUAL (COMPLAINANT) AGAINST THE DEPARTMENT OF THE NAVY, HUNTERS
POINT NAVAL SHIPYARD (RESPONDENT) ALLEGING THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (2) OF THE ORDER BY TERMINATING HIS EMPLOYMENT
BECAUSE OF HIS HAVING PROCESSED TWO GRIEVANCES AGAINST THE RESPONDENT
PURSUANT TO THE PROVISIONS OF A NEGOTIATED AGREEMENT BETWEEN THE
RESPONDENT AND THE HUNTERS POINT METAL TRADES COUNCIL (MTC).
THE EVIDENCE ESTABLISHED THAT THE RESPONDENT HIRED THE COMPLAINANT AS
A SHEETMETAL MECHANIC ON A TRIAL BASIS UNDER A TEMPORARY LIMITED
APPOINTMENT IN JUNE 1972, AND THAT THE LATTER WORKED WITHOUT INCIDENT
UNTIL SEPTEMBER 1972. IN SEPTEMBER AND OCTOBER 1972, THE COMPLAINANT
FILED GRIEVANCES ALLEGING VIOLATION OF VARIOUS SECTIONS OF THE
NEGOTIATED AGREEMENT BETWEEN THE RESPONDENT AND THE MTC AND HARASSMENT
BY HIS SUPERVISOR. THE RESPONDENT DENIED BOTH GRIEVANCES, AND THE
COMPLAINANT DID NOT ATTEMPT TO PROCESS EITHER OF THEM THROUGH THE
ADDITIONAL STEPS IN THE GRIEVANCE PROCEDURE.
ON NOVEMBER 20, 1972, THE RESPONDENT ADVISED THE COMPLAINANT THAT HIS
WORK WAS UNSATISFACTORY AND, FOR THAT REASON, HIS EMPLOYMENT WAS BEING
TERMINATED. NO NOVEMBER 21, 1972, AFTER HAVING DETERMINED THAT THE
COMPLAINANT'S REQUEST TO BE TRANSFERRED TO A JOB FOR WHICH HE WAS BETTER
SUITED COULD NOT BE HONORED AND THAT THERE WAS NO BASIS FOR HONORING THE
COMPLAINANT'S REQUEST THAT "LACK OF WORK" BE GIVEN AS THE REASON FOR HIS
TERMINATION, THE RESPONDENT ADVISED THE COMPLAINANT THAT HIS EMPLOYMENT
WOULD BE TERMINATED EFFECTIVE NOVEMBER 29, 1972.
THE CHIEF ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE COMPLAINANT HAD
FAILED TO ESTABLISH THAT HIS TERMINATION WAS BASED ON IMPROPER
CONSIDERATIONS. HE FOUND THAT THE EVIDENCE PRESENTED INDICATED THAT THE
COMPLAINANT'S WORK WAS UNSATISFACTORY, AND THAT HE HAD FAILED TO
ESTABLISH ANY RELATION BETWEEN HIS TERMINATION AND HIS HAVING FILED
GRIEVANCES AGAINST THE RESPONDENT. ACCORDINGLY, HE CONCLUDED THAT THE
COMPLAINANT HAD NOT MET HIS BURDEN OF PROVING THE ALLEGATIONS IN THE
COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE AND RECOMMENDED THAT SUCH
COMPLAINT BE DISMISSED IN ITS ENTIRETY.
UPON CONSIDERATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE CASE, AND NOTING THAT NO
EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY ADOPTED THE FINDINGS,
CONCLUSIONS AND RECOMMENDATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE.
HE THEREFORE ORDERED THAT THE COMPLAINT BE DISMISSED.
DEPARTMENT OF THE NAVY,
HUNTERS POINT NAVAL SHIPYARD
AND
ROBERT BLUEFORD
ON FEBRUARY 15, 1974, CHIEF ADMINISTRATIVE LAW JUDGE H. STEPHEN
GORDON 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
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 THE SUBJECT CASE, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, I HEREBY ADOPT THE FINDINGS,
CONCLUSIONS, AND RECOMMENDATION OF THE CHIEF ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 70-2481 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
APRIL 4, 1974
IN THE MATTER OF
DEPARTMENT OF THE NAVY
HUNTERS POINT NAVAL SHIPYARD,
AND
ROBERT BLUEFORD,
RICHARD C. WELLS
LABOR RELATIONS ADVISOR
REGIONAL OFFICE OF CIVILIAN
MANPOWER MANAGEMENT
760 MARKET STREET, SUITE 836
SAN FRANCISCO, CALIFORNIA 94102
WILLIE J. MINNIWEATHER
VICE PRESIDENT
METAL TRADERS COUNCIL
HUNTERS POINT NAVAL SHIPYARD
2264 BUSH STREET, DEPARTMENT 3
SAN FRANCISCO, CALIFORNIA 94115
BEFORE: H. STEPHAN GORDON
CHIEF ADMINISTRATIVE
LAW JUDGE
THIS CASE AROSE FROM A COMPLAINT FILED ON JANUARY 23, 1973, BY ROBERT
BLUEFORD (THE COMPLAINANT), AGAINST HUNTERS POINT NAVAL SHIPYARD, SAN
FRANCISCO, CALIFORNIA (THE ACTIVITY), ALLEGING VIOLATIONS OF EXECUTIVE
ORDER 11491, AS AMENDED (THE ORDER). A NOTICE OF HEARING ON COMPLAINT
WAS ISSUED OCTOBER 11, 1973, AND A HEARING WAS HELD IN SAN FRANCISCO,
CALIFORNIA ON THE 13TH, 15TH AND 16TH DAYS OF NOVEMBER, 1973.
BOTH PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES AND ADDUCE EVIDENCE. A
POST-HEARING BRIEF HAS BEEN FILED BY THE ACTIVITY AND HAS BEEN GIVEN DUE
CONSIDERATION. NO BRIEF HAS BEEN FILED ON BEHALF OF THE COMPLAINANT.
UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDATIONS.
1. ON JUNE 29, 1972, COMPLAINANT WAS HIRED BY THE ACTIVITY AS A
SHEETMETAL MECHANIC UNDER A TEMPORARY LIMITED APPOINTMENT. /1/ HE WAS
ASSIGNED TO THE SHEETMETAL SHOP (SHOP 17) OF THE PRODUCTION DEPARTMENT,
STRUCTURAL GROUP, FOR WORK ON THE RESTRUCTURING AND MODIFICATION OF
NAVAL VESSELS. COMPLAINANT'S PREVIOUS EXPERIENCE IN THE SHEETMETAL
TRADE WAS LIMITED TO HIS EMPLOYMENT IN THE 1940'S AS AN AIRCRAFT
SHEETMETAL REPAIR MECHANIC. ALTHOUGH THIS EXPERIENCE WAS CONSIDERED BY
MANAGEMENT TO INDICATE ONLY MARGINAL QUALIFICATION FOR PLACEMENT IN A
SHEETMETAL MECHANIC POSITION, MR. BLUEFORD WAS HIRED ON A TRIAL BASIS
BECAUSE OF AN UNUSUALLY HEAVY WORKLOAD IN SHOP 17.
2. THE HUNTERS POINT METAL TRADES COUNCIL (MTC) WAS THE EXCLUSIVE
REPRESENTATIVE FOR WORKERS EMPLOYED AT THE ACTIVITY AT THE TIME OF THE
COMPLAINANT'S APPOINTMENT. AN AGREEMENT NEGOTIATED IN 1971 CONTROLLED
MANAGEMENT-LABOR RELATIONS AT THE ACTIVITY. /2/ UPON COMPLAINANT'S
EMPLOYMENT HE JOINED THE MTC AND WAS A MEMBER AT ALL TIMES MATERIAL
HERETO.
3. ACCORDING TO COMPLAINANT'S OWN TESTIMONY, HE HAD DIFFICULTY
PERFORMING THE WORK OF A SHEETMETAL MECHANIC. HE ASCRIBED THIS
DIFFICULTY PARTLY TO HIS LACK OF EXPERIENCE AND TRAINING AND PARTLY TO
THE FAILURE OF HIS SUPERVISORS TO GIVE HIM ADEQUATE GUIDANCE.
COMPLAINANT ALSO TESTIFIED THAT HE WAS UNCOMFORTABLE WORKING WITH
SHEETMETAL AND HAD HOPED FOR A TRANSFER TO THE SHIPFITTING SHOP AT THE
ACTIVITY WHERE BECAUSE OF HIS EXPERIENCE AND SKILLS HE WOULD BE MORE
COMFORTABLE WITH THE WORK.
4. ON SEPTEMBER 14, 1972, COMPLAINANT FILED A GRIEVANCE APPEAL WITH
THE STRUCTURAL GROUP SUPERVISOR, G. J. GIOANA, THE SECOND GRIEVANCE STEP
UNDER PROCEDURES PROVIDED FOR IN THE NEGOTIATED AGREEMENT. /3/ THE
GRIEVANCE, ALLEGING VIOLATION OF VARIOUS SECTIONS OF THE AGREEMENT AND
REQUESTING CERTAIN RELIEF, STEMMED FROM COMPLAINANT'S BELIEF THAT HE HAD
BEEN REQUIRED BY HIS SUPERVISOR, MR. CORTES, TO PERFORM A WORK TASK
UNDER UNSAFE WORKING CONDITIONS. THE MERITS OF THIS GRIEVANCE ARE NOT
HERE RELEVANT.
5. SUPERVISOR GIOANA ISSUED HIS DECISION ON COMPLAINANT'S GRIEVANCE
APPEAL ON OCTOBER 10, 1972. /4/ HE FOUND THAT MR. CORTES WAS JUSTIFIED
IN ASSIGNING COMPLAINANT WORK AS HE HAD, BUT DIRECTED THAT COMPLAINANT
BE REASSIGNED TO ANOTHER SUPERVISOR IN ORDER TO AVOID THE POSSIBILITY OF
FURTHER DISSATISFACTION DUE TO A CLASH OF PERSONALITIES.
WHILE COMPLAINANT CONTINUED TO BELIEVE IN THE VALIDITY OF HIS
SEPTEMBER 14 GRIEVANCE HE DID NOT AVAIL HIMSELF OF APPEAL PROCEDURES
PROVIDED FOR IN THE NEGOTIATED AGREEMENT FOR REVIEW OF MR. GIOANA'S
SECOND STEP DECISION.
6. ON OCTOBER 4, 1972, AFTER THE FILING OF HIS FIRST GRIEVANCE
APPEAL BUT BEFORE MR. GIOANA'S DECISION WAS ISSUED, COMPLAINANT FILED A
SECOND GRIEVANCE APPEAL. /5/ THIS GRIEVANCE FLOWED FROM AN ENCOUNTER
COMPLAINANT HAD WITH MR. CORTES ON OCTOBER 3, 1972, AT WHICH CORTES
ALLEGEDLY TOLD COMPLAINANT TO BRING PROBLEMS TO HIS ATTENTION FIRST,
BEFORE FILING A FORMAL GRIEVANCE. COMPLAINANT CONTENDED THAT THIS ORDER
CONSTITUTED HARRASSMENT AND INTERFERED WITH HIS EXERCISE OF RIGHTS
GUARANTEED BY THE NEGOTIATED AGREEMENT.
SUPERVISOR GIOANA, IN HIS DECISION ON THIS GRIEVANCE APPEAL, FOUND NO
VIOLATION OF THE AGREEMENT, TERMING MR. CORTES' DIRECTIVE BOTH "PRUDENT
AND REASONABLE" UNDER THE APPLICABLE GRIEVANCE PROCEDURES. /6/
MOREOVER, SINCE UNDER THE TERMS OF THE FIRST GRIEVANCE ADJUSTMENT,
COMPLAINANT WAS TO BE REASSIGNED TO A NEW SUPERVISOR, NO FURTHER ACTION
APPEARED WARRANTED. AS WITH HIS FIRST GRIEVANCE, COMPLAINANT CHOSE NOT
TO PRESS HIS APPEAL AT THE HIGHER STEPS AVAILABLE TO HIM.
7. ON NOVEMBER 20, 1973, A MEETING BETWEEN GROUP SUPERVISOR GIOANA
AND THE COMPLAINANT AND HIS REPRESENTATIVE, UNION PRESIDENT CURRY
BROOKS, WAS HELD AT MR. GIOANA'S REQUEST. COMPLAINANT WAS INFORMED THAT
NUMEROUS REPORTS AND EVALUATIONS OF HIS WORK PERFORMANCE INDICATED THAT
THE QUALITY AND QUANTITY OF HIS OUTPUT AS A SHEETMETAL MECHANIC WERE
INADEQUATE. IN THE COURSE OF THIS MEETING COMPLAINANT AND HIS
REPRESENTATIVE REQUESTED OF MR. GIOANA THAT IF ALTERNATE WORK WAS
AVAILABLE AT THE ACTIVITY WHICH BETTER SUITED COMPLAINANT'S EXPERIENCE A
TRANSFER BE ARRANGED. COMPLAINANT ALSO REQUESTED THAT IF TERMINATION
WAS INDICATED IT NOT BE FOR CAUSE, BUT RATHER UNDER THE
REDUCTION-IN-FORCE (RIF) PROCEDURES. IN THIS RESPECT, IT IS NOTEWORTHY
THAT THE REMEDY REQUESTED BY COMPLAINANT IN THE INSTANT CASE IS NOT
NECESSARILY REINSTATEMENT TO HIS PRIOR POSITION, BUT RATHER THAT HIS
DISMISSAL LETTER BE BASED ON A PURPORTED LACK OF WORK AT THE ACTIVITY
INSTEAD OF HIS ALLEGED INABILITY TO PERFORM THE TASKS OF A SHEETMETAL
MECHANIC. THE FACT THAT SUCH A LETTER WOULD BE SPURIOUS AND CONSTITUTE
A SHAM REASON FOR HIS DISMISSAL IS UNDISPUTED. (SEE TRANSCRIPT PP.
198-201.)
8. MR. GIOANA DETERMINED THAT THERE WERE NO ALTERNATIVE POSITIONS
AVAILABLE AT THE ACTIVITY FOR WHICH COMPLAINANT WAS QUALIFIED AND THAT A
RIF ACTION IN COMPLAINANT'S CASE WAS NOT JUSTIFIABLE. THEREFORE, ON
NOVEMBER 21, 1973, ON HIS RECOMMENDATION A NOTIFICATION OF TERMINATION
OF TEMPORARY LIMITED APPOINTMENT WAS SENT TO THE COMPLAINANT FROM P. D.
KIELDGAARD, PRODUCTION OFFICER AT THE ACTIVITY. COMPLAINANT WAS THEREIN
ADVISED THAT EFFECTIVE NOVEMBER 29, 1972 HE WAS TERMINATED FROM
EMPLOYMENT BECAUSE OF A DEMONSTRATED INABILITY TO PERFORM THE DUTIES OF
A SHEETMETAL MECHANIC. ON NOVEMBER 28, 1972 COMPLAINANT FILED A FORMAL
CHARGE AGAINST THE ACTIVITY ALLEGING THAT HIS DISCHARGE VIOLATED
SECTIONS 19(A)(1) AND (2) OF THE ORDER.
9. RELATIVELY LITTLE EVIDENCE REGARDING COMPLAINANT'S COMPETENCE AS
A SHEETMETAL MECHANIC WAS INTRODUCED AT THE HEARING OF THIS MATTER. AS
INDICATED ABOVE COMPLAINANT HIMSELF TESTIFIED REGARDING HIS LACK OF
FAMILIARITY WITH THIS TYPE OF WORK AND AS TO THE DIFFICULTY HE
EXPERIENCED IN PERFORMING CERTAIN TASKS REQUIRED IN HIS POSITION.
DONALD MAXEY, A JOURNEYMAN SHEETMETAL WORKER AND MTC STEWARD AT THE
ACTIVITY, TESTIFIED THAT COMPLAINANT'S WORK PERFORMANCE WAS "VERY GOOD."
MR. MAXEY BASED HIS APPRAISAL ON AN ADMITTEDLY CASUAL OBSERVATION OF
COMPLAINANT'S WORK, AND THE LIMITED EXPERIENCE OF OCCASIONALLY WORKING
WITH COMPLAINANT AS A FELLOW EMPLOYEE.
MR. GIOANA TESTIFIED THAT COMPLAINANT'S TERMINATION WAS PROMPTED
SOLELY BY NUMEROUS WRITTEN REPORTS RECEIVED FROM SUPERVISORS REGARDING
COMPLAINANT'S INCOMPETENCE. GIOANA TESTIFIED THAT HE CONFIRMED THESE
REPORTS TO HIS OWN SATISFACTION BY INDEPENDENT FOLLOW-UP INVESTIGATION.
HOWEVER, THE RECORD FAILS TO REFLECT THAT COMPLAINANT WAS MADE PRIVY TO
THESE REPORTS PRIOR TO TERMINATION, AND WHEN ASKED TO PRODUCE THE
REPORTS AT THE HEARING MR. GIOANA RESPONDED THAT HE DID NOT KNOW OF THE
PRESENT WHEREABOUTS OF COMPLAINANT'S FILE AND SUGGESTED THAT POSSIBLY IT
WAS IN THE POSSESSION OF MR. CORTES WHO HAS RETIRED FROM THE ACTIVITY
SINCE COMPLAINANT'S TERMINATION.
10. THERE WAS UNANIMITY IN THE TESTIMONY OF MESSRS. MAXEY, GIOANA
AND TERRANCE WRIGHT, LABOR-MANAGEMENT RELATIONS SPECIALIST AT THE
ACTIVITY, THAT GRIEVANCE ACTIONS WERE NOT AN UNCOMMON OCCURRENCE AT SHOP
17, WHERE COMPLAINANT WAS EMPLOYED. GIOANA AND WRIGHT TESTIFIED THAT
MORE SECOND STEP GRIEVANCES WERE PROCESSED FROM SHOP 17 THAN FROM ANY OF
THE OTHER THREE SHOPS IN THE STRUCTURAL GROUP. NO EVIDENCE WAS ADDUCED
AT THE HEARING REGARDING THE NUMBER OF GRIEVANCES FILED BY TEMPORARY
EMPLOYEES AS COMPARED WITH PERMANENT, TENURED EMPLOYEES, OR WHETHER
THERE WERE INSTANCES IN THE RECENT HISTORY OF THE ACTIVITY OF THE
TERMINATION OF TEMPORARY EMPLOYEES FOLLOWING THEIR EXERCISE OF THEIR
GRIEVANCE RIGHTS.
11. THERE WAS, HOWEVER, A DIRECT CONFLICT OF TESTIMONY UPON WHICH I
FEEL COMPELLED TO COMMENT AT THIS TIME. UNION PRESIDENT BROOKS
TESTIFIED THAT DURING THE FIRST PART OF DECEMBER 1972, AFTER
COMPLAINANT'S TERMINATION, HE HAD OCCASION TO MEET INFORMALLY WITH MR.
DONALD CASEY, A LABOR RELATIONS OFFICER AT THE ACTIVITY. AT THIS TIME
THE UNION WAS PROCESSING THE GRIEVANCE OF ANOTHER SHOP 17 TEMPORARY
EMPLOYEE, SAM CORDOVA. MR. BROOKS TESTIFIED THAT AT HIS MEETING WITH
MR. CASEY THE LATTER TOLD HIM THAT IT WOULD BE "FOOLISH" TO PRESS THE
CORDOVA GRIEVANCE FURTHER, BECAUSE MR. CORDOVA COULD MEET THE SAME FATE
AS MR. BLUEFORD. MR. CASEY, WHILE RECALLING A MEETING WITH MR. BROOKS,
CATEGORICALLY DENIED MAKING THE STATEMENT ATTRIBUTED TO HIM. SINCE
THERE WERE NO WITNESSES TO THE ALLEGED STATEMENT, NO EVIDENCE
CORROBORATING BROOKS' VERSION OF THE MEETING WAS OFFERED. NOR DID
COMPLAINANT ADDUCE ANY EVIDENCE AS TO THE FATE OF CORDOVA'S GRIEVANCE OR
WHAT, IF ANY, ACTION THE ACTIVITY ACTUALLY TOOK AGAINST HIM. I FIND IT
NOTEWORTHY, HOWEVER, THAT EVEN THOUGH THE IMPORT OF THE STATEMENT BROOKS
ATTRIBUTED TO CASEY IS CLEAR, AND ITS IMPACT ON THE INSTANT CASE
OBVIOUS, /7/ MR. BROOKS DID NOT FEEL COMPELLED TO REPORT IT AT THE
INFORMAL CONFERENCE ON COMPLAINANT'S CHARGES HELD DECEMBER 20, 1972.
NOR WAS THIS ALLEGED STATEMENT EVER BROUGHT TO THE ATTENTION OF THE
ACTIVITY PRIOR TO MR. BROOKS' TESTIMONY IN THE INSTANT HEARING. UNDER
ALL THE CIRCUMSTANCES AND IN VIEW OF MR. CASEY'S UNQUALIFIED DENIAL, I
CANNOT CREDIT MR. BROOKS' RECOLLECTION.
1. IN HIS COMPLAINT FILED WITH THE ASSISTANT SECRETARY ON JANUARY
23, 1973, COMPLAINANT ALLEGES THAT HIS TERMINATION BY THE ACTIVITY WAS
"BASED IN PART ON HIS HAVING FILED TWO GRIEVANCES AGAINST HIS
SUPERVISORS UNDER THE PROCEDURES OF THE COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE METAL TRADES COUNCIL AND THE SHIPYARD." /8/ THIS ACTION,
COMPLAINANT CONTENDS, VIOLATED SECTION 19(A)(1) AND (2) OF EXECUTIVE
ORDER 11491. /9/
2. COMPLAINANT'S APPOINTMENT WITH THE ACTIVITY AS A TEMPORARY
LIMITED EMPLOYEE DOES NOT AFFECT THE RIGHTS GUARANTEED TO HIM BY THE
EXECUTIVE ORDER OR COMPROMISE THE INJUNCTIONS OF SECTION 19. /10/
3. TO SUPPORT HIS ALLEGATION THAT THE ACTIVITY HAS ENGAGED IN
CONDUCT VIOLATIVE OF SECTIONS 19(A)(1) AND (2), COMPLAINANT MUST BE
FOUND TO HAVE SHOWN BY A PREPONDERANCE OF THE EVIDENCE THAT HIS
TERMINATION FROM EMPLOYMENT WAS A RESULT OF HIS GRIEVANCE ACTIVITIES, 29
C.F.R. 203.14. WHILE THIS ULTIMATE BURDEN OF PROOF RESIDES WITH THE
COMPLAINANT THROUGHOUT THE PROCEEDING, IF HE WERE TO PRESENT A PRIMA
FACIE SHOWING THAT HIS DISCHARGE WAS UNLAWFULLY MOTIVATED THE ACTIVITY
WOULD BE OBLIGED TO DEMONSTRATE THAT ITS ACTIONS WERE LAWFUL. /11/
4. WHEN EXAMINING AN ACTIVITY ACTION FOR SIGNS OF UNLAWFUL
MOTIVATION THE TIMING OF THAT ACTION MAY BE ILLUMINATIVE. IN THE
PRESENT CASE NOTICE OF COMPLAINANT'S PROPOSED TERMINATION WAS GIVEN SOME
SEVEN WEEKS FOLLOWING THE FILING OF HIS SECOND GRIEVANCE. EVEN IF THE
COMPLAINANT WERE A PERMANENT, TENURED EMPLOYEE A FINDING OF ILLICIT
MOTIVE PREMISED ON THE TIMING OF THE ACTION COMPLAINED OF WOULD BE
DIFFICULT. WHEN ONE CONSIDERS THE TEMPORARY NATURE OF COMPLAINANT'S
APPOINTMENT, WHICH IN ANY CASE COULD NOT HAVE EXCEEDED ONE YEAR, THE
SUGGESTION OF UNLAWFUL MOTIVATION BASED ON TIMING IS EVEN MORE FAINT.
THUS, THE ACTIVITY EFFECTED COMPLAINANT'S TERMINATION ALMOST AT THE
HALF-WAY POINT OF HIS TEMPORARY APPOINTMENT. A FURTHER DELAY WOULD HAVE
RENDERED ANY EFFORT TO TERMINATE THIS EMPLOYEE PRACTICALLY MEANINGLESS.
WHEN THIS IS VIEWED IN THE CONTEXT THAT COMPLAINANT, BECAUSE OF HIS
ADMITTED LACK OF EXPERIENCE, WAS HIRED ORIGINALLY ON AN EXPERIMENTAL
BASIS; THAT HIS PERFORMANCE, BECAUSE OF HIS UNFAMILIARITY WITH THE
WORK, WAS AT BEST MARGINAL; AND THAT BY HIS OWN ADMISSION HE REQUESTED
A TRANSFER TO WORK ASSIGNMENTS AT WHICH HE WOULD FEEL MORE COMPETENT, I
CANNOT, ON THE BASIS OF THE AVAILABLE EVIDENCE, INFER THAT THE DISCHARGE
WAS ILLEGALLY MOTIVATED. WHILE THE ORDER PROTECTS EMPLOYEES FROM
DISCRIMINATION BECAUSE OF THE EXERCISE OF PROTECTED ACTIVITIES, IT IS
ALSO AXIOMATIC THAT THE EXERCISE OF SUCH ACTIVITIES DOES NOT CLOAK AN
INDIVIDUAL WITH IMMUNITY FROM OTHERWISE LEGITIMATE AND JUSTIFIED ACTIONS
TAKEN AGAINST HIM.
5. NOR DOES THE TESTIMONY OF MR. MAXEY AS TO COMPLAINANT'S
COMPETENCE ESTABLISH A PRIMA FACIE SHOWING THAT THE ACTIVITY'S
JUSTIFICATION FOR TERMINATION WAS MERELY A PRETEXT TO DISGUISE AN
IMPROPER MOTIVE. MAXEY WAS EMPLOYED AT THE ACTIVITY AS A JOURNEYMAN
SHEETMETAL MECHANIC AND SERVED AS A MTC STEWARD. HE NEVER DIRECTED
COMPLAINANT'S WORK AS HE DID WITH OTHER TEMPORARY EMPLOYEES AND NEVER
WAS REQUIRED TO, OR IN FACT DID, FORMALLY EVALUATE COMPLAINANT'S
PERFORMANCE. HIS OBSERVATION OF COMPLAINANT'S WORK WAS CASUAL, BRIEF
AND INFORMAL. HIS CHARACTERIZATION OF COMPLAINANT'S PERFORMANCE,
STANDING ALONE AND IN THE FACE OF OTHER EVIDENCE, MUST BE ACCORDED
LITTLE WEIGHT.
6. FINALLY, A CAREFUL REVIEW OF ALL THE CREDITABLE EVIDENCE FAILS TO
SHOW ANY ACTIVITY ANIMUS AGAINST THE MTC, ITS MEMBERS, OR OTHER
EMPLOYEES FOR THEIR EXERCISE OF ANY OF THE RIGHTS GUARANTEED UNDER THE
EXECUTIVE ORDER.
7. I THEREFORE FIND AND CONCLUDE THAT COMPLAINANT HAS FAILED TO
ESTABLISH A PRIMA FACIE CASE THAT HIS DISCHARGE WAS BASED, EVEN IN PART,
ON HIS GRIEVANCE FILING ACTIVITY.
8. EVEN IF, HOWEVER, SUCH A PRIMA FACIE CASE WERE TO BE FOUND, A
REVIEW OF THE ENTIRE RECORD PERSUADES ME THAT COMPLAINANT HAS FAILED TO
CARRY THE ULTIMATE BURDEN OF PROOF. THE EVIDENCE DEMONSTRATES THAT
COMPLAINANT WAS GIVEN A TEMPORARY LIMITED APPOINTMENT TO HELP THE
ACTIVITY MEET AN EXTRAORDINARILY HEAVY PRODUCTION SCHEDULE. HE WAS
TERMINATED WHEN IT BECAME APPARENT FROM HIS SUPERVISOR'S EVALUATIONS
THAT HIS MARGINAL EXPERIENCE IN SHEETMETAL WORK DID NOT ALLOW HIM TO
PERFORM ADEQUATELY THE DUTIES OF HIS POSITION. WHILE COMPLAINANT HAD
FILED SEVERAL GRIEVANCES PRIOR TO HIS DISCHARGE, I FIND THAT THIS
ACTIVITY HAD NO BEARING ON HIS TERMINATION.
ON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, I HEREBY
RECOMMEND TO THE ASSISTANT SECRETARY THAT THE COMPLAINT HERE IN ISSUE BE
DISMISSED IN ITS ENTIRETY.
DATED: FEBRUARY 15, 1974
WASHINGTON, D.C.
/1/ THE STATUS OF SUCH AN APPOINTMENT IS DESCRIBED IN CHAPTER 316,
SUBCHAPTER 4, OF THE FEDERAL PERSONNEL MANUAL (FPM). IN BRIEF, A
TEMPORARY LIMITED APPOINTEE IS EMPLOYED TO FILL POSITIONS NOT EXPECTED
TO LAST MORE THAN ONE YEAR, SEASONAL AND PART-TIME POSITIONS AND
CONTINUING POSITIONS WHEN TEMPORARILY VACATED FOR PERIODS OF LESS THAN
ONE YEAR, OR WHEN FILLED BY PERSONS 70 YEARS OR OLDER. SUCH
APPOINTMENTS ARE MADE FOR A SPECIFIED PERIOD NOT TO EXCEED ONE YEAR.
APPOINTEES DO NOT HAVE THE PROTECTION OF REDUCTION-IN-FORCE PROCEDURES
AND MAY BE SEPARATED AT ANY TIME UPON NOTICE IN WRITING FROM AN
APPOINTING OFFICER.
/2/ JOINT EXHIBIT NO. 3.
/3/ CLAIMANT'S EXHIBIT NO. 1.
/4/ ACTIVITY EXHIBIT NO. 1.
/5/ JOINT EXHIBIT NO. 2.
/6/ ACTIVITY EXHIBIT NO. 2.
/7/ COMPLAINANT CONSIDERED THIS TESTIMONY OF SUFFICIENT IMPORT TO
REQUEST MR. BROOKS' APPEARANCE AT THE HEARING, EVEN THOUGH THIS WITNESS
WAS THEN EMPLOYED AT THE ACTIVITY'S NORFOLK NAVAL SHIPYARD IN VIRGINIA.
AT COMPLAINANT'S INSISTENCE THE WITNESS WAS FLOWN TO SAN FRANCISCO FOR
THE PURPOSE OF APPEARING AS A WITNESS IN THIS CASE.
/8/ ASSISTANT SECRETARY'S EXHIBIT NO. 1(A).
/9/ SEC. 19. UNFAIR LABOR PRACTICES. (A) AGENCY MANAGEMENT SHALL
NOT-
(1) INTERFERE WITH, RESTRAIN, OR COERCE ANY 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;
/10/ TERMINATION PROCEDURES UNDER THE FEDERAL PERSONNEL MANUAL AND
APPLICABLE REGULATIONS OF THE DEPARTMENT OF THE NAVY TREAT EMPLOYEES
WITH TEMPORARY LIMITED APPOINTMENTS DIFFERENTLY THAN OTHER EMPLOYEES IN
WAYS NOT HERE RELEVANT.
/11/ THIS SHIFT IN THE BURDEN OF GOING FORWARD IS RECOGNIZED BY THE
NATIONAL LABOR RELATIONS BOARD IN CASES ARISING UNDER SECTION 8(A)(3) OF
THE NATIONAL LABOR RELATIONS ACT (NLRA), 29 U.S.C. 158(A)(3), NLRB V.
WHITIN MACHINE WORKS, 204 F.2D 833 (C.A. 1, 1953), HECK'S, INC., 156
NLRB 760 (1966). WHERE, AS HERE, EXPERIENCE UNDER THE NLRA MAY BE
INSTRUCTIVE IN CASES ARISING UNDER THE EXECUTIVE ORDER, THE ASSISTANT
SECRETARY WILL LOOK TO THAT EXPERIENCE FOR GUIDANCE, CHARLESTON NAVAL
SHIPYARD, A/SLMR NO. 1.
4 A/SLMR 372; P. 221; CASE NOS. 53-6652, 53-6733; MARCH 25, 1974.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES
OFFICE (DCASO), COLUMBUS, OHIO
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES
OFFICE (DCASO), AKRON, OHIO
A/SLMR NO. 372
THIS CASE AROSE AS A RESULT OF A PETITION BY LOCAL 73, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, SEEKING A UNIT OF ALL EMPLOYEES
ASSIGNED TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO),
COLUMBUS, OHIO, AND A PETITION FILED BY LOCAL 3426, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, SEEKING A UNIT OF ALL EMPLOYEES
ASSIGNED TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO),
AKRON, OHIO. THE ACTIVITIES CONTENDED THAT THE PETITIONED FOR UNITS
WERE NOT APPROPRIATE BECAUSE THEY EXCLUDED EMPLOYEES WHO SHARED A
COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE UNITS SOUGHT. IN THIS
REGARD, THE ACTIVITIES ASSERTED THAT THE APPROPRIATE UNIT SHOULD BE
REGIONWIDE IN SCOPE, INCLUDING ALL EMPLOYEES IN THE FOUR EXCLUSIVELY
RECOGNIZED BARGAINING UNITS CURRENTLY IN EXISTENCE WITHIN THE REGION, IN
ADDITION TO ALL ELIGIBLE EMPLOYEES WHO CURRENTLY ARE NOT INCLUDED IN ANY
EXCLUSIVELY RECOGNIZED UNIT. IN THE ALTERNATIVE, THE ACTIVITIES
CONTENDED THAT THE APPROPRIATE UNIT SHOULD CONSIST OF ALL ELIGIBLE
EMPLOYEES WHO ARE NOT INCLUDED IN ANY EXCLUSIVELY RECOGNIZED UNIT. AS
ANOTHER ALTERNATIVE, THE ACTIVITIES INDICATED THAT THEY WOULD ACCEPT AS
AN APPROPRIATE UNIT ALL ELIGIBLE EMPLOYEES OF THE REGION WHO CURRENTLY
WERE NOT INCLUDED IN EXCLUSIVELY RECOGNIZED UNITS.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE UNITS SOUGHT HEREIN ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER THE ORDER. IN THIS REGARD, THE ASSISTANT SECRETARY
NOTED THAT WITHIN EACH OF THE CLAIMED UNITS THE EMPLOYEES ENJOY COMMON
SUPERVISION, ARE SUBJECT TO SIMILAR PERSONNEL POLICIES AND JOB BENEFITS,
SIMILAR WORKING CONDITIONS, AND PERFORM THEIR DUTIES WITHIN AN ASSIGNED
GEOGRAPHICAL LOCALITY. FURTHER, THE EMPLOYEES ASSIGNED TO A PARTICULAR
DCASO DO NOT INTERCHANGE WITH EMPLOYEES OF OTHER OFFICES, DISTRICTS, OR
HEADQUARTERS OF THE REGION AND, GENERALLY, TRANSFER ONLY IN SITUATIONS
INVOLVING PROMOTION OR REDUCTION-IN-FORCE PROCEDURES. MOREOVER, NOTING
THAT CURRENTLY THERE ARE FOUR EXCLUSIVELY RECOGNIZED UNITS WITHIN THE
REGION, TWO OF WHICH ARE COVERED BY A NEGOTIATED AGREEMENT, THE
ASSISTANT SECRETARY FOUND THAT EACH OF THE UNITS SOUGHT WOULD PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE ASSISTANT
SECRETARY REJECTED THE CONTENTION MADE BY THE ACTIVITIES THAT THE
CERTIFICATION OF A LESS THAN REGIONWIDE UNIT WOULD LIMIT THE SCOPE OF
NEGOTIATIONS WITHIN THAT UNIT SOLELY TO THOSE MATTERS WITHIN THE
DELEGATED DISCRETIONARY AUTHORITY OF THE PARTICULAR CHIEF OF THE
INDIVIDUAL SUBORDINATE ORGANIZATIONAL UNIT. CITING THE DECISION OF THE
FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) IN UNITED FEDERATION OF
COLLEGE TEACHERS, LOCAL 1460, AND U.S. MERCHANT MARINE ACADEMY, FLRC NO.
71A-15, AND APPLYING THE COUNCIL'S RATIONALE TO THE INSTANT SITUATION,
THE ASSISTANT SECRETARY NOTED THAT WHERE, AS HERE, CERTAIN LABOR
RELATIONS AND PERSONNEL POLICIES ARE ESTABLISHED BY THE REGIONAL
HEADQUARTERS, IT IS THE OBLIGATION OF THE LATTER TO PROVIDE
REPRESENTATIVES WITH RESPECT TO THE UNITS FOUND APPROPRIATE HEREIN "WHO
ARE EMPOWERED TO NEGOTIATE AND ENTER INTO AGREEMENTS ON ALL MATTERS
WITHIN THE SCOPE OF NEGOTIATIONS IN THE BARGAINING UNIT."
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT ELECTIONS BE
CONDUCTED IN THE UNITS FOUND APPROPRIATE.
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES
OFFICE (DCASO), COLUMBUS, OHIO /1/
AND
LOCAL 73, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
DEFENSE SUPPLY AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR),
CLEVELAND, OHIO, DEFENSE
CONTRACT ADMINISTRATION SERVICES
OFFICE (DCASO), AKRON, OHIO /2/
AND
LOCAL 3426, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
FRANCIS R. FLANNERY. 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, INCLUDING THE BRIEFS FILED BY
THE ACTIVITIES AND BY PETITIONER LOCAL 73, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, HEREIN CALLED NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITIES.
2. IN CASE NO. 53-6652, THE NFFE SEEKS AN ELECTION IN A UNIT OF ALL
REGULAR FULL-TIME GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF THE
DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO), COLUMBUS, OHIO,
EXCLUDING ALL MILITARY EMPLOYEES, MANAGEMENT OFFICIALS, SUPERVISORS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, PROFESSIONAL EMPLOYEES AND SECURITY GUARDS. IN CASE
NO. 53-6733, LOCAL 3426, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL REGULAR
FULL-TIME GENERAL SCHEDULE EMPLOYEES ASSIGNED AND REPORTING TO DCASO,
AKRON, OHIO, EXCLUDING ALL MANAGEMENT OFFICIALS, SUPERVISORS,
PROFESSIONAL EMPLOYEES, MILITARY EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND SECURITY
GUARDS.
THE ACTIVITIES CONTEND THAT THE ONLY APPROPRIATE UNIT IS A UNIT MADE
UP OF ALL ELIGIBLE EMPLOYEES OF THE DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), CLEVELAND, OHIO. IN THE ACTIVITIES' VIEW, SUCH
A REGIONWIDE UNIT WOULD INCLUDE ALL OF THE EMPLOYEES IN THE FOUR
EXCLUSIVELY RECOGNIZED UNITS CURRENTLY IN EXISTENCE WITHIN THE REGION,
IN ADDITION TO ALL ELIGIBLE EMPLOYEES WHO CURRENTLY ARE NOT INCLUDED IN
ANY EXCLUSIVELY RECOGNIZED UNIT. IN THE ALTERNATIVE, THE ACTIVITIES
CONTEND THAT THE APPROPRIATE UNIT SHOULD CONSIST OF ALL ELIGIBLE
EMPLOYEES IN EXCLUSIVELY RECOGNIZED UNITS FOR WHICH THERE IS NO CURRENT
NEGOTIATED AGREEMENT, TOGETHER WITH ALL ELIGIBLE EMPLOYEES WHO CURRENTLY
ARE NOT INCLUDED IN ANY EXCLUSIVELY RECOGNIZED UNIT. A SECOND
ALTERNATIVE THE ACTIVITIES INDICATED THEY WOULD ACCEPT IS A UNIT
CONSISTING OF ALL ELIGIBLE EMPLOYEES OF THE REGION CURRENTLY NOT
INCLUDED IN EXCLUSIVELY RECOGNIZED UNITS, INCLUDING THE EMPLOYEES SOUGHT
IN THE TWO PETITIONS HEREIN. WITH RESPECT TO THE UNITS PETITIONED FOR
IN THE SUBJECT CASES, THE ACTIVITIES ASSERT THAT THEY ARE NOT
APPROPRIATE BECAUSE THEY EXCLUDE EMPLOYEES WHO SHARE A COMMUNITY OF
INTEREST WITH THE EMPLOYEES IN THE UNITS SOUGHT AND, FURTHER, THAT THE
CLAIMED UNITS WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS.
THE DCASR, CLEVELAND, IS ONE OF 11 SUCH REGIONS OF THE DEFENSE SUPPLY
AGENCY AND IS A PRIMARY LEVEL FIELD ACTIVITY OF THAT AGENCY. IT
PROVIDES CONTRACT ADMINISTRATION SERVICES IN SUPPORT OF THE DEPARTMENT
OF DEFENSE AS WELL AS OTHER FEDERAL AGENCIES, AND ENCOMPASSES A
GEOGRAPHIC AREA WHICH INCLUDES THE STATES OF OHIO, KENTUCKY, AND THE
THREE WESTERN-MOST COUNTIES OF THE STATE OF PENNSYLVANIA. THERE ARE TWO
DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICTS (DCASD'S) WITHIN
DCASR, CLEVELAND; NAMELY, DCASD, DAYTON, AND DCASD, CINCINNATI. IN
ADDITION, DCASR, CLEVELAND, INCLUDES FOUR DCASO'S LOCATED IN TOLEDO,
AKRON, AND COLUMBUS, OHIO, AND AT THE GOULD PLANT IN CLEVELAND, OHIO.
BOTH THE DCASD'S AND THE DCASO'S REPORT DIRECTLY TO THE HEADQUARTERS
DCASR, CLEVELAND. APPROXIMATELY 1,250 CIVILIANS ARE EMPLOYED THROUGHOUT
THE DCASR, CLEVELAND.
DCASR, CLEVELAND, IS HEADED BY A REGIONAL COMMANDER (A MILITARY
OFFICER) WHOSE OFFICE IS LOCATED AT THE DCASR HEADQUARTERS IN CLEVELAND.
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. THE OFFICES ARE
CONCERNED PRIMARILY WITH MATTERS REGARDING PLANNING, ADMINISTRATION,
CONTRACT COMPLIANCE PROBLEMS AND SECURITY PROBLEMS AT DEFENSE PLANTS;
THE DIRECTORATES ARE CONCERNED WITH MATTERS REGARDING CONTRACT
ADMINISTRATION, PRODUCTION AND QUALITY ASSURANCE. WHILE PERSONNEL
MANAGEMENT IS CENTRALIZED AT DCASR, CLEVELAND, HEADQUARTERS, THE RECORD
REVEALS THAT THERE ARE PERSONNEL MANAGEMENT SPECIALISTS LOCATED AT EACH
OF THE DCASD'S IN DAYTON AND CINCINNATI WHO PERFORM VARIOUS PERSONNEL
FUNCTIONS AND ARE RESPONSIBLE FOR PROMOTIONS AND EVALUATION OF CLERICAL
POSITIONS IN THOSE DISTRICTS.
AT PRESENT, THERE ARE FOUR SEPARATE EXCLUSIVE BARGAINING UNITS WITHIN
DCASR, CLEVELAND. THE NFFE IS THE EXCLUSIVE BARGAINING REPRESENTATIVE
FOR A UNIT OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES ASSIGNED TO
DCASR HEADQUARTERS. INCLUDED IN THIS UNIT ARE ALL NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES ASSIGNED TO THE DCASO AT THE GOULD PLANT,
WHICH IS LOCATED IN THE CLEVELAND METROPOLITAN AREA. THE NFFE ALSO
REPRESENTS A UNIT OF ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES
WORKING IN ELYRIA, JEFFERSON, AND ASHTABULA COUNTIES IN THE STATES OF
OHIO AND PENNSYLVANIA. THESE TWO UNITS CURRENTLY ARE COVERED BY A
SINGLE NEGOTIATED AGREEMENT WHICH HAS A TERMINATION DATE OF APRIL 7,
1975. NFFE LOCAL 75 IS THE EXCLUSIVE BARGAINING REPRESENTATIVE FOR A
UNIT OF ALL NONSUPERVISORY EMPLOYEES, INCLUDING PROFESSIONAL EMPLOYEES,
ASSIGNED TO THE DCASD, CINCINNATI. IN THIS REGARD, THE RECORD DISCLOSES
THAT THE PARTIES CURRENTLY ARE ENGAGED IN NEGOTIATING AN AGREEMENT FOR
THIS UNIT. LASTLY, NFFE LOCAL 42 IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF ALL NONSUPERVISORY GENERAL SCHEDULE
EMPLOYEES ASSIGNED TO THE DCASO, TOLEDO, OFFICE. THE RECORD REVEALS
THAT THERE IS NO AGREEMENT COVERING THIS UNIT. THERE IS NO HISTORY OF
COLLECTIVE BARGAINING CONCERNING THE EMPLOYEES ASSIGNED TO THE DCASD,
DAYTON, OR AS TO THE EMPLOYEES SOUGHT BY THE INSTANT PETITIONS AT THE
DCASO, COLUMBUS, AND THE DCASO, AKRON.
ALTHOUGH AN ADMINISTRATIVE DISTINCTION IS MADE IN THE ORGANIZATION OF
THE DCASR BETWEEN A DCASD AND A DCASO, THE EVIDENCE ESTABLISHES THAT
THEY ARE ESSENTIALLY THE SAME TYPE OF ORGANIZATION. THUS, BOTH ARE
SUBDIVISIONS OF THE DCASR AND ARE CONCERNED PRIMARILY WITH THE
DAY-TO-DAY FUNCTIONS OF THE DCASR WITHIN A GIVEN GEOGRAPHICAL AREA.
GENERALLY, A DCASD IS SOMEWHAT LARGER THAN A DCASO IN TERMS OF NUMBERS
OF PERSONNEL AND PERFORMS A LIMITED NUMBER OF FUNCTIONS NOT NORMALLY
ASSIGNED TO A DCASO. HOWEVER, AS NOTED ABOVE, BOTH ORGANIZATIONS REPORT
DIRECTLY TO THE REGIONAL COMMANDER AT DCASR, CLEVELAND, HEADQUARTERS AND
THE RELATIONSHIP BETWEEN THEM AND HEADQUARTERS IS ESSENTIALLY THE SAME.
THE DCASO'S ARE UNDER THE SUPERVISION OF A CHIEF AND ORGANIZATIONALLY
ARE SUBDIVIDED TO CORRESPOND WITH THE DIRECTORATES OF THE REGIONAL
HEADQUARTERS. THUS, IN EACH DCASO, THERE IS A DIVISION OF CONTRACT
ADMINISTRATION, A DIVISION OF PRODUCTION, A DIVISION OF QUALITY
ASSURANCE, AND AN OFFICE OF ADMINISTRATIVE SERVICES. DEPENDING UPON THE
NUMBER OF PERSONNEL ASSIGNED TO EACH DCASO, IT MAY BE FURTHER
ORGANIZATIONALLY SUBDIVIDED WITH EACH DIVISION HAVING TWO OR MORE
BRANCHES. IN ADDITION, THE RECORD REVEALS THAT THERE ARE A NUMBER OF
RESIDENT OFFICES ATTACHED TO EACH OF THE DCASO'S. THESE RESIDENT
OFFICES EITHER ARE ASSIGNED TO ONE PARTICULAR MANUFACTURING FACILITY, OR
TO A SPECIFIC SUB-GEOGRAPHICAL AREA ENCOMPASSED BY THE LARGER
GEOGRAPHICAL AREA OF THE DCASO. ALTHOUGH THE EMPLOYEES ASSIGNED TO
THESE RESIDENT OFFICES DO NOT REPORT DAILY TO THE DCASO TO WHICH THEY
ARE ASSIGNED, THEY CONDUCT THEIR DUTIES IN EXACTLY THE SAME MANNER IN
WHICH THE EMPLOYEES ASSIGNED TO AND WORKING OUT OF THE DCASO'S PERFORM
THEIR DUTIES. THUS, ALL EMPLOYEES SUBMIT DAILY REPORTS OF THEIR
ACTIVITIES TO THEIR FIRST-LINE SUPERVISORS, WHO THEN TRANSMIT THESE
REPORTS TO THE BRANCH OR DIVISION CHIEF OF THE DCASO AND, THEREAFTER, TO
THE CHIEF OF THE DCASO.
THE RECORD REVEALS THAT ALL OF THE EMPLOYEES OF THE DCASO'S 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. THE RECORD DOES
NOT INDICATE ANY DEGREE OF INTERCHANGE OF EMPLOYEES FROM OFFICE TO
OFFICE, OR FROM DISTRICT TO DISTRICT, OR BETWEEN THE HEADQUARTERS' STAFF
AND THE OFFICES WITHIN THE DCASR. WHILE THE EVIDENCE ESTABLISHES THAT
THERE IS SOME DEGREE OF TRANSFER OF EMPLOYEES AMONG THE VARIOUS
GEOGRAPHICAL ORGANIZATIONAL COMPONENTS WITHIN THE DCASR, GENERALLY SUCH
TRANSFERS OCCUR WITHIN THE CONTEXT OF PROMOTION OR REDUCTION-IN-FORCE
PROCEDURES. THE RECORD DISCLOSES THAT THE AREA OF CONSIDERATION FOR
PROMOTION AND FOR REDUCTION-IN-FORCE FOR ALL EMPLOYEES CLASSIFIED GS-8
AND ABOVE IS REGIONWIDE, WHEREAS THE AREA OF CONSIDERATION FOR PROMOTION
AND REDUCTION-IN-FORCE FOR EMPLOYEES CLASSIFIED GS-7 AND BELOW IS WITHIN
THE GEOGRAPHICAL AREA OF THE LOCATION OF THE EMPLOYEE INVOLVED. A
SIGNIFICANT NUMBER OF THE EMPLOYEES ASSIGNED TO THE DCASO'S PERFORM
THEIR DUTIES AT THE SITES WHERE THE 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. EMPLOYEES
ASSIGNED TO A PARTICULAR DCASO PERFORM THEIR DUTIES ONLY WITHIN THE
GEOGRAPHICAL AREA ASSIGNED TO THAT DCASO AND WORK UNDER THE SUPERVISION
OF THE CHIEF OF THE DCASO AND HIS SUBORDINATE SUPERVISORS. THE RECORD
REVEALS THAT EMPLOYEES ASSIGNED TO A PARTICULAR DIVISION WITHIN A DCASO
SHARE COMMON JOB CLASSIFICATIONS WITH OTHER EMPLOYEES IN THE SAME
DIVISION AND THAT EMPLOYEES SO CLASSIFIED UTILIZE BASICALLY SIMILAR
SKILLS AND PERFORM SUBSTANTIALLY SIMILAR DUTIES.
BASED ON ALL OF THE FOREGOING, I FIND THAT THE UNITS SOUGHT HEREIN
ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER. THUS, THE EVIDENCE ESTABLISHES THAT WITHIN EACH OF THE CLAIMED
UNITS THE EMPLOYEES ENJOY COMMON SUPERVISION, ARE SUBJECT TO SIMILAR
PERSONNEL POLICIES AND JOB BENEFITS, SIMILAR WORKING CONDITIONS, AND
PERFORM THEIR DUTIES WITHIN AN ASSIGNED GEOGRAPHICAL LOCALITY. FURTHER,
EMPLOYEES ASSIGNED TO A PARTICULAR DCASO DO NOT INTERCHANGE WITH ANY
OTHER EMPLOYEES OF THE DCASR AND, GENERALLY, TRANSFER FROM THAT LOCATION
ONLY IN SITUATIONS INVOLVING PROMOTION OR REDUCTION-IN-FORCE PROCEDURES.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN EACH OF THE
UNITS PETITIONED FOR HEREIN SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE DCASR,
CLEVELAND. /3/ MOREOVER, I FIND THAT THE UNITS SOUGHT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. IN THIS REGARD,
IT WAS NOTED THAT CURRENTLY THERE ARE FOUR EXCLUSIVELY RECOGNIZED UNITS
WITHIN THE DCASR, CLEVELAND, TWO OF WHICH CURRENTLY ARE COVERED BY A
NEGOTIATED AGREEMENT. FURTHER, I REJECT THE CONTENTION MADE BY THE
ACTIVITIES 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 PARTICULAR CHIEF OF THE
PARTICULAR INDIVIDUAL SUBORDINATE UNIT INVOLVED. AS STATED BY THE
FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) IN UNITED FEDERATION OF
COLLEGE TEACHERS, LOCAL 1460 AND U.S. MERCHANT MARINE ACADEMY, FLRC NO.
71A-15, "CLEARLY, THE ORDER REQUIRES THE PARTIES TO PROVIDE
REPRESENTATIVES WHO ARE EMPOWERED TO NEGOTIATE AND TO ENTER INTO
AGREEMENTS ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS IN THE
BARGAINING UNIT." APPLYING THE COUNCIL'S RATIONALE TO THE INSTANT
SITUATION, WHERE CERTAIN LABOR RELATIONS AND PERSONNEL POLICIES ARE
ESTABLISHED BY THE DCASR HEADQUARTERS, IN MY VIEW, IT IS THE OBLIGATION
OF THE DCASR TO PROVIDE REPRESENTATIVES WITH RESPECT TO THE UNITS FOUND
APPROPRIATE HEREIN "WHO ARE EMPOWERED TO NEGOTIATE AND ENTER INTO
AGREEMENTS ON ALL MATTERS WITHIN THE SCOPE OF NEGOTIATIONS IN THE
BARGAINING UNIT."
ACCORDINGLY, BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING UNITS
ARE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER EXECUTIVE
ORDER 11491, AS AMENDED: /4/
IN CASE NO. 53-6652: ALL EMPLOYEES ASSIGNED TO THE DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICE (DCASO), COLUMBUS, OHIO, 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.
IN CASE NO. 53-6733: ALL EMPLOYEES ASSIGNED TO THE DEFENSE CONTRACT
ADMINISTRATION SERVICES OFFICE (DCASO), AKRON, OHIO, 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.
ELECTION BY SECRET BALLOT SHALL BE CONDUCTED AMONG THE EMPLOYEES IN
THE UNITS FOUND APPROPRIATE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN 60
DAYS FROM THE DATE BELOW. THE APPROPRIATE AREA ADMINISTRATOR SHALL
SUPERVISE THE ELECTIONS, SUBJECT TO THE ASSISTANT SECRETARY'S
REGULATIONS. ELIGIBLE TO VOTE ARE THOSE IN THE UNITS 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 IN CASE NO. 53-6652 SHALL VOTE WHETHER OR
NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION BY LOCAL 73, NATIONAL FEDERATION OF FEDERAL EMPLOYEES.
THOSE ELIGIBLE TO VOTE IN CASE NO. 53-6733 SHALL VOTE WHETHER OR NOT
THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
BY LOCAL 3426, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
DATED, WASHINGTON, D.C.
MARCH 25, 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/ CF. DEFENSE SUPPLY AGENCY, DCASR BOSTON-QUALITY ASSURANCE, A/SLMR
NO. 97 AND DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (DCASR), BOSTON, MASSACHUSETTS, A/SLMR NO. 271.
/4/ I AM ADVISED ADMINISTRATIVELY THAT THERE ARE NO WAGE GRADE
EMPLOYEES ASSIGNED TO DCASO, COLUMBUS. AS TO THE REQUESTED EXCLUSION OF
MILITARY PERSONNEL, I FIND SUCH AN EXCLUSION TO BE TOO BROAD IN THE
ABSENCE OF EVIDENCE THAT THERE ARE, IN FACT, NO OFF-DUTY MILITARY
PERSONNEL EMPLOYED BY THE ACTIVITIES WHO PROPERLY WOULD BE INCLUDED IN
THE CLAIMED UNITS. ACCORDINGLY, I SHALL NOT SPECIFICALLY EXCLUDE
MILITARY PERSONNEL FROM THE UNITS FOUND APPROPRIATE. CF. DEPARTMENT OF
THE NAVY, NAVY EXCHANGE, MAYPORT, FLORIDA, A/SLMR NO. 24 AND DEPARTMENT
OF THE AIR FORCE, MCCONNELL AIR FORCE BASE, KANSAS, A/SLMR NO. 134.
4 A/SLMR 371; P. 218; CASE NOS. 63-4410(CU) AND 63-4508(AC); MARCH
19, 1974.
ARMY AND AIR FORCE EXCHANGE SERVICE,
KIRTLAND AIR FORCE BASE EXCHANGE
A/SLMR NO. 371
THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2263 FILED A PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING TO
CLARIFY AN EXISTING EXCLUSIVELY RECOGNIZED BARGAINING UNIT IN ORDER TO
HAVE IT CONFORM TO A NEW ORGANIZATIONAL STRUCTURE BROUGHT ABOUT BY THE
REORGANIZATION OF THE SANDIA AREA EXCHANGE OF THE ARMY AND AIR FORCE
EXCHANGE SERVICE. SPECIFICALLY, THE AFGE SOUGHT TO ADD THE
APPROXIMATELY 46 UNREPRESENTED EMPLOYEES OF THE FORMER KIRTLAND AIR
FORCE BASE EXCHANGE TO THE UNIT OF APPROXIMATELY 116 EMPLOYEES OF THE
FORMER SANDIA BASE EXCHANGE WHO CURRENTLY ARE REPRESENTED BY THE AFGE.
THE AFGE ALSO FILED A PETITION FOR AMENDMENT OF CERTIFICATION (AC)
SEEKING TO AMEND THE DESIGNATION OF THE ACTIVITY AND THE LABOR
ORGANIZATION NAMED IN THE PRIOR RECOGNITION.
THE ASSISTANT SECRETARY FOUND THAT THERE WAS INSUFFICIENT BASIS TO
SUPPORT THE AFGE'S CONTENTION THAT THE REORGANIZATION RESULTED IN AN
ACCRETION OR ADDITION TO ITS EXCLUSIVELY REPRESENTED UNIT. IN THIS
CONNECTION, HE NOTED THE FACT THAT NOTWITHSTANDING THE REORGANIZATION
AND CHANGE IN DESIGNATION OF THE ACTIVITY, THERE REMAINED VISIBLE AND
IDENTIFIABLE GROUPS OF EMPLOYEES PERFORMING THE FORMER SANDIA BASE
EXCHANGE AND KIRTLAND AIR FORCE BASE EXCHANGE FUNCTIONS. ACCORDINGLY,
HE ORDERED THAT THE CU PETITION BE DISMISSED.
THE RECORD REVEALED THAT AS A RESULT OF THE REORGANIZATION EFFECTED
IN JULY 1971 THE DESIGNATION FOR THE ACTIVITY WAS, IN FACT, CHANGED.
ACCORDINGLY, CONSISTENT WITH THE REQUEST OF THE PARTIES, THE ASSISTANT
SECRETARY AMENDED THE PRIOR RECOGNITION TO CONFORM TO THE EXISTING
CIRCUMSTANCES RESULTING FROM THE CHANGE.
THE RECORD REVEALED ALSO THAT IN JULY 1971, CONCURRENT WITH THE
ACTIVITY'S REORGANIZATION, SANDIA BASE LODGE NO. 2346 AFGE, AFL-CIO,
WHICH WAS THE EXCLUSIVE REPRESENTATIVE OF THE FORMER SANDIA BASE
EXCHANGE EMPLOYEES, MERGED INTO THE AFGE, AFL-CIO LOCAL 2263. IN THESE
CIRCUMSTANCES, AND CONSISTENT WITH THE AGREEMENT OF THE PARTIES, THE
ASSISTANT SECRETARY AMENDED THE PRIOR RECOGNITION TO CONFORM TO THIS
CHANGE.
ARMY AND AIR FORCE EXCHANGE SERVICE,
KIRTLAND AIR FORCE BASE EXCHANGE /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2263
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER PAUL
HALL. 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:
IN CASE NO. 63-4410 (CU), THE PETITIONER, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2263, HEREIN CALLED AFGE, FILED A
PETITION FOR CLARIFICATION OF UNIT (CU) SEEKING TO CLARIFY AN EXISTING
EXCLUSIVELY RECOGNIZED BARGAINING UNIT IN ORDER TO HAVE IT CONFORM TO A
NEW ORGANIZATIONAL STRUCTURE BROUGHT ABOUT BY THE REORGANIZATION OF THE
SANDIA AREA EXCHANGE OF THE ARMY AND AIR FORCE EXCHANGE SERVICE. AN
EFFECT OF THIS REORGANIZATION WAS THE ADMINISTRATIVE MERGER OF THE
KIRTLAND AIR FORCE BASE EXCHANGE AND THE SANDIA BASE EXCHANGE, BOTH OF
WHICH HAD BEEN PART OF THE SANDIA AREA EXCHANGE OF THE ARMY AND AIR
FORCE EXCHANGE SERVICE. MORE SPECIFICALLY, THE AFGE SEEKS TO ADD THE
APPROXIMATELY 46 UNREPRESENTED EMPLOYEES OF THE FORMER KIRTLAND AIR
FORCE BASE EXCHANGE TO THE UNIT OF APPROXIMATELY 116 EMPLOYEES OF THE
FORMER SANDIA BASE EXCHANGE WHO CURRENTLY ARE REPRESENTED BY THE AFGE.
/2/ THE PROPOSED UNIT DESCRIPTION INCLUDES:
ALL REGULAR FULL-TIME AND REGULAR PART-TIME EMPLOYEES OF THE ARMY AND
AIR FORCE EXCHANGE
SERVICE AT KIRTLAND AIR FORCE BASE, NEW MEXICO. EXCLUDED ARE
PROFESSIONAL EMPLOYEES,
TEMPORARY PART-TIME EMPLOYEES, TEMPORARY FULL-TIME EMPLOYEES, CASUAL
EMPLOYEES, SUPERVISORS,
MANAGEMENT OFFICIALS, PERSONNEL EMPLOYEES EMPLOYED IN OTHER THAN A
PURELY CLERICAL CAPACITY,
AND GUARDS AS DEFINED IN EXECUTIVE ORDER 11491.
THE AFGE ALSO FILED A PETITION FOR AMENDMENT OF CERTIFICATION (AC) IN
CASE NO. 63-4508 (AC) SEEKING TO AMEND THE DESIGNATION OF THE ACTIVITY
AND THE LABOR ORGANIZATION NAMED IN THE PRIOR RECOGNITION. THE PARTIES
AGREED THAT THE REQUESTED CLARIFICATION OF UNIT AND AMENDMENTS TO THE
CERTIFICATION SHOULD BE GRANTED.
THE SANDIA BASE EXCHANGE AND THE KIRTLAND AIR FORCE BASE EXCHANGE ARE
LOCATED IMMEDIATELY ADJACENT TO EACH OTHER NEAR ALBUQUERQUE, NEW MEXICO.
PRIOR TO JULY 1971, THESE TWO EXCHANGES WERE PART OF THE SANDIA AREA
EXCHANGE OF THE ARMY AND AIR FORCE EXCHANGE SERVICE AND WERE DESIGNATED
AS THE SANDIA BASE EXCHANGE (EAST) AND THE KIRTLAND AIR FORCE BASE
EXCHANGE (WEST.) IN 1965, THE SANDIA AREA EXCHANGE ACCORDED EXCLUSIVE
RECOGNITION TO AFGE SANDIA BASE LODGE NO. 2346 FOR A UNIT OF ALL
FULL-TIME AND REGULAR PART-TIME EMPLOYEES LOCATED AT SANDIA BASE
EXCHANGE (EAST).
PRIOR TO JULY 1971, THE SANDIA BASE EXCHANGE AND THE KIRTLAND AIR
FORCE BASE EXCHANGE WERE UNDER SEPARATE COMMANDERS WHO WERE RESPONSIBLE
FOR THEIR RESPECTIVE EXCHANGE FACILITIES, INCLUDING THE RESPONSIBILITY
FOR PERSONNEL AND LABOR-MANAGEMENT RELATIONS MATTERS. REPORTING TO THE
TWO COMMANDERS WAS A SINGLE GENERAL MANAGER WHO WAS RESPONSIBLE FOR THE
ADMINISTRATIVE AND OPERATIONAL FUNCTIONS AT BOTH EXCHANGES. /3/ WHILE
THE RECORD IS NOT CLEAR WITH RESPECT TO THE AREA OF CONSIDERATION FOR
VACANCIES OF PROMOTIONS AT THESE EXCHANGES, IT IS CLEAR THAT THE AREA OF
CONSIDERATION FOR REDUCTION-IN-FORCE PURPOSES INCLUDED THE ENTIRE SANDIA
AREA EXCHANGE. FURTHER, THE RECORD REVEALS THAT THERE WAS NO
INTERCHANGE OR TRANSFER OF EMPLOYEES BETWEEN THE TWO EXCHANGES AND THAT
BOTH EXCHANGES WERE SUBJECT TO THE SAME ARMY AND AIR FORCE EXCHANGE
SERVICE REGULATIONS, PROVIDED THE SAME SERVICES, EMPLOYED EMPLOYEES IN
SIMILAR JOB CLASSIFICATIONS, AND UTILIZED A COMMON PERSONNEL OFFICE.
/4/
IN JULY 1972, THE SANDIA AREA EXCHANGE WAS REORGANIZED AND, AS A
RESULT, THE SANDIA BASE EXCHANGE (EAST) AND THE KIRTLAND AIR FORCE BASE
EXCHANGE (WEST) WERE ADMINISTRATIVELY CONSOLIDATED INTO ONE
ORGANIZATIONAL ENTITY NOW KNOWN AS THE ARMY AND AIR FORCE EXCHANGE,
KIRTLAND AIR FORCE BASE EXCHANGE. /5/ THERE ARE APPROXIMATELY 116
EMPLOYEES LOCATED AT KIRTLAND EAST AND APPROXIMATELY 46 EMPLOYEES
LOCATED AT KIRTLAND WEST. THE ADMINISTRATIVE REORGANIZATION WAS
DESIGNED TO DELEGATE RESPONSIBILITY FOR THE OPERATIONS OF THE TWO
EXCHANGES TO A SINGLE EXCHANGE MANAGER, INCLUDING THE RESPONSIBILITY FOR
CONDUCTING COLLECTIVE BARGAINING. UNDER THE AUTHORITY OF THE EXCHANGE
MANAGER ARE THE MAIN STORE EAST, MAIN STORE WEST, CAFETERIA EAST,
CAFETERIA WEST, SERVICE STATION EAST, SERVICE STATION WEST, RETAIL
BRANCH STORE EAST AND RETAIL BRANCH STORE WEST.
IN PRIOR DECISIONS, /6/ IT HAS BEEN INDICATED THAT IN DECIDING
MATTERS INVOLVING REORGANIZATIONS, THE ASSISTANT SECRETARY WILL CONSIDER
THE ACTUAL IMPACT ON EMPLOYEES RESULTING FROM SUCH REORGANIZATIONS. THE
RECORD REVEALS THAT THE REORGANIZATION HEREIN HAS NOT RESULTED IN THE
PHYSICAL RELOCATION OF ANY OF THE EMPLOYEES INVOLVED, NOR HAS IT
SUBSTANTIALLY AFFECTED THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT.
THUS, ALTHOUGH THERE IS EVIDENCE OF MINIMAL INTERCHANGE AND TRANSFER
BETWEEN EMPLOYEES OF THE TWO EXCHANGES, THE RECORD DISCLOSES THAT THE
EMPLOYEES ARE STILL ENGAGED IN PROVIDING ESSENTIALLY THE SAME SERVICES,
ARE EMPLOYED IN THE SAME JOB CLASSIFICATIONS, AND ARE WORKING
ESSENTIALLY AT THE SAME LOCATIONS UNDER THE SAME IMMEDIATE SUPERVISION
AS PRIOR TO THE REORGANIZATION.
UNDER THE CIRCUMSTANCES PRESENTED IN THIS CASE, I FIND INSUFFICIENT
BASIS TO SUPPORT THE AFGE'S CONTENTION THAT THE REORGANIZATION .RESULTED
IN AN ACCRETION OR ADDITION TO ITS EXCLUSIVELY REPRESENTED UNIT. THUS,
THE EVIDENCE ESTABLISHES THAT, NOTWITHSTANDING THE REORGANIZATION AND
CHANGE IN DESIGNATION OF THE ACTIVITY, THERE STILL REMAIN VIABLE AND
IDENTIFIABLE GROUPS OF EMPLOYEES PERFORMING THE FORMER SANDIA BASE
EXCHANGE AND KIRTLAND AIR FORCE BASE EXCHANGE FUNCTIONS. /7/
ACCORDINGLY, NOTWITHSTANDING THE AGREEMENT OF THE PARTIES, I SHALL
DISMISS THE CU PETITION IN CASE NO. 63-4410 (CU).
AS NOTED ABOVE, BY ITS AC PETITION, THE AFGE PROPOSES TO AMEND THE
PRIOR RECOGNITION TO REFLECT THE CHANGE IN THE DESIGNATION OF THE
ACTIVITY AND ITS EMPLOYEES' EXCLUSIVE REPRESENTATIVE. WITH REGARD TO
THE DESIGNATION OF THE ACTIVITY, THE EVIDENCE, AS NOTED ABOVE, DISCLOSES
THAT AS A RESULT OF A REORGANIZATION EFFECTED IN JULY 1971, THE
DESIGNATION OF THE ACTIVITY WAS, IN FACT, CHANGED. ACCORDINGLY,
CONSISTENT WITH THE REQUEST OF THE PARTIES, I SHALL ORDER THAT THE PRIOR
RECOGNITION BE AMENDED TO CONFORM TO THE EXISTING CIRCUMSTANCES
RESULTING FROM THE CHANGE IN THE DESIGNATION OF THE ACTIVITY
PRECIPITATED BY THE AGENCY REORGANIZATION.
IN ADDITION, THE AFGE PROPOSES TO AMEND THE PRIOR RECOGNITION TO
REFLECT THE CHANGE IN THE DESIGNATION OF THE INCUMBENT LABOR
ORGANIZATION. IN THIS CONNECTION, THE EVIDENCE, AS NOTED ABOVE,
DISCLOSES THAT CONCURRENT WITH THE ABOVE NOTED REORGANIZATION, TWO AFGE
LOCALS MERGED WITH A RESULTING CHANGE IN THE DESIGNATION OF THE
INCUMBENT LABOR ORGANIZATION. ACCORDINGLY, CONSISTENT WITH THE
AGREEMENT OF THE PARTIES, I SHALL ORDER THAT THE PRIOR RECOGNITION BE
AMENDED TO CONFORM TO THE EXISTING CIRCUMSTANCES RESULTING FROM THE
CHANGE IN THE IDENTITY OF THE INCUMBENT LABOR ORGANIZATION PRECIPITATED
BY THE MERGER OF THE TWO AFGE LOCALS.
IT IS HEREBY ORDERED THAT THE RECOGNITION ACCORDED THE SANDIA BASE
LODGE NO. 2346, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO IN
1965 BE, AND IT HEREBY IS, AMENDED BY SUBSTITUTING THEREIN AS THE
DESIGNATION OF THE ACTIVITY, ARMY AND AIR FORCE EXCHANGE SERVICE,
KIRTLAND AIR FORCE BASE EXCHANGE FOR SANDIA AREA EXCHANGE, ARMY AND AIR
FORCE EXCHANGE SERVICE. /8/
IT IS FURTHER ORDERED THAT THE DESIGNATION OF THE SANDIA BASE LODGE
NO. 2346, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
DESCRIBED IN THE PRIOR RECOGNITION BE CHANGED TO AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2263.
IT IS FURTHER ORDERED THAT THE PETITION IN CASE NO. 63-4410 (CU) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 19, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS AMENDED AT THE HEARING.
/2/ IN JULY 1971, CONCURRENT WITH THE ACTIVITY'S REORGANIZATION, AFGE
SANDIA BASE LODGE NO. 2346, WHICH WAS THE EXCLUSIVE REPRESENTATIVE OF
THE FORMER SANDIA BASE EXCHANGE EMPLOYEES, MERGED INTO AFGE LOCAL 2263.
/3/ UNDER THE GENERAL MANAGER APPARENTLY WERE FIVE DIVISIONS;
ACCOUNTING, RETAIL OPERATIONS, FOOD OPERATIONS, SERVICE OPERATIONS, AND
PERSONNEL.
/4/ PRIOR TO THE ADMINISTRATIVE MERGER, THE PERSONNEL OFFICE FOR BOTH
EXCHANGES WAS LOCATED AT THE SANDIA AREA EXCHANGE.
/5/ FOR THE PURPOSES OF THIS DECISION, THE FORMER SANDIA BASE
EXCHANGE IS HEREINAFTER REFERRED TO AS KIRTLAND EAST AND THE FORMER
KIRTLAND BASE EXCHANGE IS HEREINAFTER REFERRED TO AS KIRTLAND WEST.
/6/ SEE, E.G., DEFENSE SUPPLY AGENCY, DEFENSE PROPERTY DISPOSAL
OFFICE, ABERDEEN PROVING GROUND, ABERDEEN, MARYLAND, A/SLMR NO. 360;
DEPARTMENT OF THE ARMY, STRATEGIC COMMUNICATIONS COMMAND, FORT HUACHUCA,
ARIZONA, A/SLMR NO. 351; DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S.
ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD, FORT LEONARD WOOD,
MISSOURI, A/SLMR NO. 328; AND AMC AMMUNITION CENTER, SAVANNA, ILLINOIS,
A/SLMR NO. 291.
/7/ CF. ABERDEEN PROVING GROUND COMMAND, DEPARTMENT OF THE ARMY.
/8/ IT SHOULD BE NOTED THAT WHILE I HAVE ORDERED THAT A CHANGE IN THE
DESIGNATION OF THE ACTIVITY IS APPROPRIATE UNDER THE CIRCUMSTANCES, THE
SCOPE OF THE UNIT, AS NOTED IN THE DISMISSAL OF THE INSTANT CU PETITION,
CONTINUES TO ENCOMPASS ONLY THOSE EMPLOYEES LOCATED AT THE FORMER SANDIA
BASE EXCHANGE (KIRTLAND EAST).
4 A/SLMR 370; P. 216; CASE NO. 50-9599; MARCH 14, 1974.
ILLINOIS ARMY NATIONAL GUARD,
1ST BATTALION, 202ND AIR DEFENSE ARTILLERY,
ARLINGTON HEIGHTS, ILLINOIS
A/SLMR NO. 370
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT (CU) FILED BY
THE CHICAGO CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS, INCORPORATED
(PETITIONER), SEEKING TO CLARIFY THE STATUS OF CERTAIN EMPLOYEES WHO ARE
CLASSIFIED AS GUIDED MISSILE MECHANICAL EQUIPMENT REPAIRERS, ALSO CALLED
LAUNCHER CREWMEN, WG-6 AND WG-7. THE ACTIVITY CONTENDED THAT THE
INCUMBENTS IN THE SUBJECT CLASSIFICATION PERFORMED GUARD DUTY OF A
NATURE SEPARATE AND APART FROM THE NORMAL SECURITY FUNCTIONS PERFORMED
BY ALL TECHNICIANS IN THE AIR DEFENSE PROGRAM WHICH WOULD REQUIRE THE
EXCLUSION OF THIS CLASSIFICATION FROM THE UNIT. THE PETITIONER, ON THE
OTHER HAND, CONTENDED THAT THE PRIMARY DUTY OF THE INCUMBENTS IN THE
DISPUTED CLASSIFICATION WAS THAT OF MAINTENANCE ON EQUIPMENT AND THAT
THE EMPLOYEES IN THIS POSITION ARE NOT GUARDS WITHIN THE MEANING OF THE
ORDER.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE DISPUTED
CLASSIFICATION PERFORMED GUARD DUTY ON A REGULAR, RECURRING BASIS FOR
SUBSTANTIAL PERIODS OF TIME, AND THEREFORE WERE GUARDS WITHIN THE
MEANING OF SECTION 2(D) OF THE ORDER. CF. VIRGINIA AIR NATIONAL GUARD
HEADQUARTERS, 4TH BATTALION, 111TH ARTILLERY, A/SLMR NO. 69.
ACCORDINGLY, HE CLARIFIED THE UNIT BY EXCLUDING THE EMPLOYEES IN THE
CLASSIFICATION OF GUIDED MISSILE MECHANICAL EQUIPMENT REPAIRER (LAUNCHER
CREWMAN, WG-6 AND WG-7) FROM THE UNIT.
ILLINOIS ARMY NATIONAL GUARD,
1ST BATTALION, 202ND AIR DEFENSE ARTILLERY,
ARLINGTON HEIGHTS, ILLINOIS
AND
CHICAGO CHAPTER, ASSOCIATION OF
CIVILIAN TECHNICIANS, INCORPORATED
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOHN R. LUND. 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 AND THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
THE PETITIONER FILED A PETITION FOR CLARIFICATION OF UNIT (CU) IN THE
SUBJECT CASE SEEKING CLARIFICATION OF A CERTAIN CLASSIFICATION OF
EMPLOYEES. /1/ SPECIFICALLY, THE PETITIONER SEEKS TO CLARIFY THE STATUS
OF THOSE EMPLOYEES CLASSIFIED AS GUIDED MISSILE MECHANICAL EQUIPMENT
REPAIRER, ALSO REFERRED TO AS LAUNCHER CREWMAN, WG-6 AND WG-7, CLAIMING
THAT THEY SHOULD BE INCLUDED IN THE EXCLUSIVELY RECOGNIZED BARGAINING
UNIT. THE ACTIVITY, ON THE OTHER HAND, CONTENDS THAT THE EMPLOYEES IN
THIS CLASSIFICATION ARE GUARDS WITHIN THE MEANING OF SECTION 2(D) OF THE
ORDER AND, THUS, SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED
UNIT.
THE RECORD INDICATES THAT THE PETITIONER WAS CERTIFIED ON APRIL 16,
1973, AS THE EXCLUSIVE BARGAINING REPRESENTATIVE IN A UNIT OF ILLINOIS
ARMY NATIONAL GUARD, AIR DEFENSE TECHNICIANS, EXCLUDING GUARDS AND
CERTAIN OTHER CATEGORIES OF EMPLOYEES. HEADQUARTERS AT ARLINGTON
HEIGHTS, ILLINOIS, THE ACTIVITY IS ENGAGED IN A DAILY OPERATIONAL
MISSION WITHIN THE NORTH AMERICAN AIR DEFENSE COMMAND UNDER THE CONTROL
OF THE CHICAGO ARMY AIR DEFENSE COMMAND. ITS FUNCTION IS TO PROVIDE
COMMAND, ADMINISTRATION, SUPPLY, ORGANIZATIONAL MAINTENANCE AND
OPERATIONAL CONTROL FOR THE AIR DEFENSE BATTALION, NIKE HERCULES. THE
ACTIVITY'S BATTERIES A, B, AND D, LOCATED RESPECTIVELY AT HOMEWOOD,
ADDISON AND NORTHFIELD, ILLINOIS, ARE SUBORDINATE UNITS WHICH PROVIDE
THE MISSILE LAUNCHING AND FIRING CONTROL COMPONENTS OF THE AIR DEFENSE
BATTALION, NIKE HERCULES.
GUIDED MISSILE MECHANICAL EQUIPMENT REPAIRER (LAUNCHER CREWMAN, WG-6
AND WG-7)
THIS JOB POSITION IS LOCATED IN EACH LAUNCHING PLATOON OF THE
ACTIVITY'S SUBORDINATE BATTERIES. THE ACTIVITY CONTENDS THAT AN
INCUMBENT IN THIS POSITION PERFORMS GUARD DUTY OF A NATURE WHICH IS
SEPARATE AND APART FROM THE NORMAL SECURITY FUNCTIONS PERFORMED BY ALL
TECHNICIANS IN THE AIR DEFENSE PROGRAM AND WHICH, THEREFORE, REQUIRES
THE EXCLUSION OF THIS POSITION FROM THE UNIT. THE PETITIONER, ON THE
OTHER HAND, STATES THAT THE PRIMARY DUTY OF THE SUBJECT POSITION IS THAT
OF MAINTENANCE ON EQUIPMENT AND THAT INCUMBENTS IN THIS POSITION ARE NOT
GUARDS WITHIN THE MEANING OF THE ORDER.
THE JOB DESCRIPTION FOR THE GUIDED MISSILE MECHANICAL EQUIPMENT
REPAIRER (LAUNCHER CREWMAN), SPECIFICALLY REQUIRES THAT, IN ADDITION TO
THE PERFORMANCE OF DUTIES NECESSARY TO THE PREPARATION, OPERATION, AND
FIRING OF NIKE HERCULES MISSILES, AND IN ADDITION TO MAINTENANCE
FUNCTIONS, THE EMPLOYEES IN THIS JOB CLASSIFICATION SHALL: "PERFORM(S)
AS AN ARMED GUARD RESPONSIBLE FOR ENSURING THAT MAXIMUM SECURITY IS
PROVIDED IN THE NIKE HERCULES LAUNCHING AREA. RESPONSIBILITY INCLUDES
MAINTENANCE OF LAW AND ORDER, THE PREVENTION OF UNAUTHORIZED ENTRY AND
THE PROTECTION OF THE AREA FROM SABOTAGE, ESPIONAGE, FIRE AND OTHER ACTS
DETRIMENTAL TO THE SAFEGUARD OF BUILDINGS AND EQUIPMENT WHICH MAY
INCLUDE NUCLEAR WEAPONS."
THE RECORD REVEALS THAT INCUMBENTS IN THE SUBJECT POSITION, IN FACT,
PERFORM THE GUARD FUNCTIONS SET FORTH IN THE JOB DESCRIPTION ON A
REGULAR, RECURRING BASIS AND THAT, ON THE AVERAGE, SUCH GUARD DUTY
ACCOUNTS FOR MORE THAN THIRTY PERCENT OF THEIR TOTAL WORK HOURS. THUS,
THE RECORD REFLECTS THAT ALMOST ALL OF THE EMPLOYEES WHO WERE IN THE
DISPUTED CLASSIFICATION FOR THE SIX-MONTH PERIOD PRIOR TO THE HEARING IN
THIS MATTER SPENT OVER THIRTY PERCENT OF THEIR WORK TIME ON GUARD DUTY,
AND THAT SOME FORTY PERCENT OF THESE EMPLOYEES SPENT FIFTY PERCENT OR
MORE OF THEIR WORK TIME PERFORMING SUCH GUARD DUTY. WHILE THERE IS
EVIDENCE TO INDICATE THAT CERTAIN GENERAL MAINTENANCE DUTIES ARE
PERFORMED ON OCCASION WHILE THE EMPLOYEES AT ISSUE ARE ASSIGNED TO GUARD
DUTY, THE RECORD REVEALS THAT THE EMPLOYEES' PRIMARY RESPONSIBILITY AND
FUNCTION WHILE ON GUARD DUTY IS THE MAINTENANCE OF THE SECURITY OF THEIR
ASSIGNED POST. THE RECORD REVEALS FURTHER THAT THE EMPLOYEES IN THE
DISPUTED CLASSIFICATION ARE GIVEN SPECIFIC TRAINING FOR THE PURPOSE OF
THE PROPER PERFORMANCE OF THEIR GUARD DUTY AND THAT THEY ARE ASSIGNED
SUCH DUTY ON A ROTATIONAL BASIS THROUGHOUT A TWENTY-FOUR HOUR SHIFT.
MOREOVER, THE RECORD INDICATES THAT DURING EACH OF THEIR RECURRENT
TWENTY-FOUR WORK SHIFTS, THE EMPLOYEES AT ISSUE ARE REQUIRED TO BE IN
UNIFORM AND TO REMAIN ON THE INSTALLATION, ARE ISSUED WEAPONS AFTER 4:00
P.M. REGARDLESS OF WHETHER THEY ARE ON ASSIGNED GUARD DUTY OR NOT, AND
ARE REQUIRED TO MAINTAIN THEMSELVES IN A STATE OF READINESS THROUGHOUT
THEIR TOUR OF DUTY.
BASED ON THE FOREGOING, I FIND THAT GUIDED MISSILE MECHANICAL
EQUIPMENT REPAIRER (LAUNCHER CREWMAN, WG-6 AND WG-7) ARE GUARDS WITHIN
THE MEANING OF SECTION 2(D) OF THE EXECUTIVE ORDER. IN THIS REGARD,
NOTED PARTICULARLY WAS THE SUBSTANTIAL AMOUNT OF TIME SPENT, ON A
REGULAR AND RECURRENT BASIS, IN THE PERFORMING OF ARMED GUARD DUTY BY
THE EMPLOYEES IN THE ABOVE CLASSIFICATION. /2/ ACCORDINGLY, I FIND THE
EXISTING EXCLUSIVELY RECOGNIZED UNIT SHOULD BE CLARIFIED TO EXCLUDE
EMPLOYEES IN THE CLASSIFICATION OF GUIDED MISSILE MECHANICAL EQUIPMENT
REPAIRER (LAUNCHER CREWMAN, WG-6 AND WG-7).
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE CHICAGO CHAPTER, ASSOCIATION OF CIVILIAN TECHNICIANS,
INCORPORATED, WAS CERTIFIED ON APRIL 16, 1973, BE, AND HEREBY IS,
CLARIFIED BY EXCLUDING FROM THE SAID UNIT THE EMPLOYEE CLASSIFICATION
GUIDED MISSILE MECHANICAL EQUIPMENT REPAIRER (LAUNCHER CREWMAN, WG-6 AND
WG-7).
DATED, WASHINGTON, D.C.
MARCH 14, 1974
/1/ DURING THE COURSE OF THESE PROCEEDINGS, THE PARTIES AGREED TO THE
CONFIDENTIAL, SUPERVISORY, OR GUARD STATUS OF CERTAIN EMPLOYEE
CLASSIFICATIONS FOR WHICH CLARIFICATION HAD INITIALLY BEEN SOUGHT.
THERE IS NO EVIDENCE WHICH WOULD INDICATE THAT THE PARTIES' AGREEMENT IN
THIS REGARD WAS IMPROPER. AS INDICATED IN NEW JERSEY DEPARTMENT OF
DEFENSE, A/SLMR NO. 121, THE PARTIES' AGREEMENT WAS VIEWED AS, IN
EFFECT, A WITHDRAWAL REQUEST OF THAT PORTION OF THE SUBJECT PETITION
SEEKING CLARIFICATION OF THE STATUS OF THE AGREED UPON CLASSIFICATIONS.
IN THESE CIRCUMSTANCES, I FIND IT UNNECESSARY TO MAKE A DETERMINATION
WITH RESPECT TO THE STATUS OF ANY OF THESE AGREED UPON CLASSIFICATIONS.
/2/ CF. VIRGINIA AIR NATIONAL GUARD HEADQUARTERS, 4TH BATTALION,
111TH ARTILLERY, A/SLMR NO. 69.
4 A/SLMR 369; P. 213; CASE NO. 72-4288(RO); MARCH 14, 1974.
UNITED STATES DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
BEE RESEARCH LABORATORY COMPLEX,
TUCSON, ARIZONA
A/SLMR NO. 369
THIS CASE INVOLVES A REPRESENTATION PETITION FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3439, AFL-CIO, (AFGE), FOR A
UNIT OF ALL EMPLOYEES OF THE UNITED STATES DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE, BEE RESEARCH LABORATORY COMPLEX, TUCSON,
ARIZONA. THE ACTIVITY CONTENDED THAT THE ONLY APPROPRIATE UNIT WOULD
INCLUDE ALL EMPLOYEES OF THE WESTERN REGION OF THE AGRICULTURAL RESEARCH
SERVICE, OR, ALTERNATIVELY, WOULD INCLUDE ALL EMPLOYEES OF THE SOUTHERN
ARIZONA-NEW MEXICO AREA OF THE WESTERN REGION OF THE SERVICE.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PETITIONED FOR UNIT WAS
NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN REACHING
THIS DETERMINATION, THE ASSISTANT SECRETARY NOTED THAT THE AREA DIRECTOR
OF THE SOUTHERN ARIZONA-NEW MEXICO AREA IS RESPONSIBLE FOR DIRECTING THE
WORK OF 12 RESEARCH UNITS IN THE AREA AND THAT THE CLAIMED UNIT OF
EMPLOYEES AT THE BEE RESEARCH LABORATORY COMPLEX WOULD INCLUDE ONLY SOME
OF THE RESEARCH UNITS LOCATED IN TUCSON OR IN THE AREA. HE NOTED ALSO
THAT EACH OF THE RESEARCH UNITS IN THE AREA REPORTS INDEPENDENTLY TO THE
AREA DIRECTOR; THAT THERE IS INTERCHANGE AND TRANSFER AMONG THE VARIOUS
RESEARCH UNITS IN THE AREA; THAT THE AREA OF CONSIDERATION FOR EMPLOYEE
PROMOTIONS IS BROADER THAN THE CLAIMED UNIT; AND THAT ULTIMATE
RESPONSIBILITY FOR MOST PERSONNEL FUNCTIONS FOR EMPLOYEES IN THE WESTERN
REGION OF THE SERVICE IS CENTRALIZED IN THE WESTERN REGIONAL
ADMINISTRATIVE OFFICE. UNDER THESE CIRCUMSTANCES, THE ASSISTANT
SECRETARY CONCLUDED THAT THE EMPLOYEES IN THE BEE RESEARCH LABORATORY
COMPLEX DID NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM CERTAIN OTHER SERVICE 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.
UNITED STATES DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE,
BEE RESEARCH LABORATORY COMPLEX,
TUCSON, ARIZONA
AND
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3439, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LINDA 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 A BRIEF FILED BY THE
ACTIVITY, 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 3439, AFL-CIO, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL EMPLOYEES OF THE UNITED STATES DEPARTMENT OF AGRICULTURE,
AGRICULTURAL RESEARCH SERVICE, BEE RESEARCH LABORATORY COMPLEX, TUCSON,
ARIZONA, EXCLUDING MANAGEMENT OFFICIALS, SUPERVISORS, GUARDS, CASUAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK OTHER THAN PURELY
CLERICAL IN NATURE, WORK STUDY AND COOPERATIVE EDUCATION STUDENTS. /1/
THE ACTIVITY ASSERTS THAT THE PROPOSED UNIT IS INAPPROPRIATE BECAUSE
ALL OF THE EMPLOYEES OF THE WESTERN REGION OF THE AGRICULTURAL RESEARCH
SERVICE (ARS), OR AS A MINIMUM, ALL OF THE EMPLOYEES OF THE SOUTHERN
ARIZONA-NEW MEXICO AREA OF THE WESTERN REGION OF THE ARS, OF WHICH THE
BEE RESEARCH LABORATORY COMPLEX IS A COMPONENT, SHARE A COMMUNITY OF
INTEREST. IT NOTES, IN THIS REGARD, THAT PERSONNEL AND LABOR RELATIONS
AUTHORITY FOR THESE EMPLOYEES RESTS WITH THE REGIONAL DIRECTOR OF THE
WESTERN REGION OF THE ARS, AND THAT THE UNIT SOUGHT HEREIN, CONSISTING
OF ONLY FOUR OF THE TWELVE RESEARCH UNITS WITHIN THE SOUTHERN
ARIZONA-NEW MEXICO AREA OF THE WESTERN REGION OF THE ARS, WOULD NOT
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE MISSION OF THE ARS IS TO CONDUCT BASIC APPLIED AND DEVELOPMENTAL
RESEARCH ON THE MARKETING, PRODUCTION AND UTILIZATION OF AGRICULTURAL
PRODUCTS. IT IS DIVIDED INTO FOUR REGIONAL OFFICES, EACH OF WHICH IS
UNDER THE SUPERVISION OF A DEPUTY ADMINISTRATOR. THE WESTERN REGION OF
THE ARS ENCOMPASSES THE WESTERN PORTION OF THE UNITED STATES AND IS
HEADQUARTERED IN BERKELEY, CALIFORNIA. WITHIN THE WESTERN REGION THERE
ARE AREA OFFICES LOCATED AT PHOENIX, ARIZONA; TUCSON, ARIZONA; FRESNO,
CALIFORNIA; RIVERSIDE, CALIFORNIA; FORT COLLINS, COLORADO; LOGAN,
UTAH; AND PULLMAN, WASHINGTON. THERE ALSO IS A REGIONAL RESEARCH
CENTER LOCATED AT ALBANY, CALIFORNIA.
THE AREA OFFICE LOCATED IN TUCSON, ARIZONA, IS RESPONSIBLE FOR THE
SOUTHERN ARIZONA-NEW MEXICO AREA OF THE ARS AND CONSISTS OF TWELVE
RESEARCH UNITS. EIGHT OF THESE RESEARCH UNITS ARE LOCATED IN TUCSON,
ARIZONA, I.E., BARLEY BREEDING RESEARCH, FORAGE INSECTS RESEARCH, HONEY
BEE POLLINATION RESEARCH, COTTON INSECTS-BIOLOGICAL CONTROL RESEARCH,
ARIDLANDS GRASS BREEDING RESEARCH, OILSEED CROPS PRODUCTION RESEARCH,
RANGELANDS WEEDS AND BRUSH CONTROL RESEARCH, AND WATERSHED MANAGEMENT
RESEARCH. THREE RESEARCH UNITS OF THE TUCSON AREA OFFICE-- COTTON
BREEDING RESEARCH, COTTON GINNING RESEARCH, AND RANGE MANAGEMENT
RESEARCH ARE LOCATED AT LAS CRUCES, NEW MEXICO, WHILE THE EXTERNAL
PARASITES OF LIVESTOCK RESEARCH UNIT IS LOCATED AT ALBUQUERQUE, NEW
MEXICO. THERE ALSO ARE SATELLITE FACILITIES AT TOMBSTONE, ARIZONA AND
SANTA ROSA, NEW MEXICO. THE CLAIMED UNIT OF SOME 30 EMPLOYEES IS
LOCATED AT THE BEE RESEARCH LABORATORY COMPLEX, WHICH CONTAINS ONLY FOUR
OF THE EIGHT RESEARCH UNITS FOUND IN TUCSON,-- FORAGE INSECTS RESEARCH,
HONEY BEE POLLINATION RESEARCH, COTTON INSECTS-BIOLOGICAL CONTROL
RESEARCH, AND RANGELANDS WEEDS AND BRUSH CONTROL RESEARCH. THE COMPLEX
CONSISTS OF SOME TWENTY STRUCTURES ON ABOUT FOUR AND ONE-HALF ACRES OF
LAND.
THE RECORD REVEALS THAT THE SOUTHERN ARIZONA-NEW MEXICO AREA OFFICE
OF THE WESTERN REGION IS HEADED BY AN AREA DIRECTOR WHO REPORTS TO THE
DEPUTY ADMINISTRATOR OF THE WESTERN REGION LOCATED AT BERKELEY,
CALIFORNIA. THE AREA DIRECTOR IS RESPONSIBLE FOR THE WORK OF ALL OF THE
TWELVE RESEARCH UNITS WITHIN THE AREA. EACH OF THESE RESEARCH UNITS,
INCLUDING THE FOUR UNITS LOCATED AT THE BEE RESEARCH LABORATORY COMPLEX,
IS HEADED BY A RESEARCH LEADER WHO REPORTS DIRECTLY TO THE AREA
DIRECTOR. THE RECORD REVEALS ALSO THAT THE AREA DIRECTOR ISSUES
MEMORANDA WHICH ESTABLISH THE ADMINISTRATIVE PROCEDURES FOR ALL THE
EMPLOYEES OF THE AREA AND THAT HE HOLDS QUARTERLY MEETINGS WITH THE
RESEARCH LEADERS IN ORDER TO CONSULT WITH THEM REGARDING THE
IMPLEMENTATION OF AREA OFFICE PROCEDURES. AN ADMINISTRATIVE OFFICER
ATTACHED TO THE AREA DIRECTOR'S OFFICE PROVIDES PERSONNEL, FINANCIAL AND
ADMINISTRATIVE SERVICES FOR ALL THE RESEARCH UNITS WITHIN THE AREA. THE
AREA DIRECTOR HAS THE AUTHORITY TO REASSIGN EMPLOYEES BETWEEN THE
RESEARCH UNITS AND THE EVIDENCE ESTABLISHES THAT EMPLOYEE INTERCHANGE
AND TRANSFERS HAVE OCCURRED AMONG THE VARIOUS RESEARCH UNITS IN THE
AREA, INCLUDING UNITS LOCATED IN AND OUTSIDE OF THE BEE RESEARCH
LABORATORY COMPLEX. MOREOVER, THE AREA OF CONSIDERATION FOR EMPLOYEE
PROMOTIONS IS NOT LIMITED TO INDIVIDUAL RESEARCH UNITS OR TO EMPLOYEES
IN THE FOUR UNITS LOCATED AT THE COMPLEX. THUS, THE AREA OF
CONSIDERATION FOR ALL WAGE GRADE EMPLOYEES AND GENERAL SCHEDULE
EMPLOYEES BELOW GS-6 IS THE LOCAL COMMUTING AREA, IS REGIONWIDE FOR GS-7
THROUGH GS-11 AND IS AGENCYWIDE FOR GS-12 AND ABOVE. IN ADDITION, THE
RECORD REFLECTS THAT FINAL RESPONSIBILITY FOR MOST PERSONNEL MATTERS FOR
EMPLOYEES OF THE WESTERN REGION RESIDES WITHIN THE REGIONAL
ADMINISTRATIVE OFFICE (RAO) AT BERKELEY, CALIFORNIA. IN THIS
CONNECTION, THE RAO MAINTAINS MERIT PROMOTION FILES, HAS FINAL AUTHORITY
REGARDING DISCIPLINARY ACTIONS, HAS JOB CLASSIFICATION AUTHORITY AND IS
RESPONSIBLE FOR LABOR-MANAGEMENT FUNCTIONS IN THE WESTERN REGION.
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, IT WAS NOTED
PARTICULARLY THAT THE AREA DIRECTOR OF THE SOUTHERN ARIZONA-NEW MEXICO
AREA IS RESPONSIBLE FOR DIRECTING THE WORK OF THE 12 RESEARCH UNITS IN
THE AREA; THAT THE CLAIMED UNIT OF EMPLOYEES AT THE BEE RESEARCH
LABORATORY COMPLEX WOULD INCLUDE ONLY SOME OF THE RESEARCH UNITS LOCATED
IN TUCSON, OR IN THE AREA; THAT EACH OF THE RESEARCH UNITS IN THE AREA
REPORTS INDEPENDENTLY TO THE AREA DIRECTOR; THAT THERE IS INTERCHANGE
AND TRANSFER AMONG THE VARIOUS RESEARCH UNITS IN THE AREA; THAT THE
AREA OF CONSIDERATION FOR EMPLOYEE PROMOTIONS IS BROADER THAN THE
CLAIMED UNIT; AND THAT ULTIMATE RESPONSIBILITY FOR MOST PERSONNEL
FUNCTIONS FOR EMPLOYEES IN THE WESTERN REGION OF THE ARS IS CENTRALIZED
IN THE WESTERN REGION RAO. UNDER THESE CIRCUMSTANCES, I FIND THAT THE
EMPLOYEES OF THE BEE RESEARCH LABORATORY COMPLEX DO NOT SHARE A CLEAR
AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
CERTAIN OTHER ARS 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. 72-4288 (RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1974
/1/ THE UNIT DESCRIPTION APPEARS AS DESCRIBED IN THE AMENDED PETITION
FILED BY THE AFGE ON JULY 6, 1973. AT THE HEARING AND IN ITS
POST-HEARING BRIEF, THE ACTIVITY CONTENDED THAT THE ORIGINAL PETITION
FILED BY THE AFGE ON JUNE 6, 1973, WAS PROCEDURALLY DEFECTIVE IN THAT IT
WAS SIGNED BY AN EMPLOYEE THE ACTIVITY ALLEGES TO BE A SUPERVISOR. AT
THE HEARING, THE AFGE MOVED TO WITHDRAW ITS ORIGINAL PETITION AND
REQUESTED THAT ITS AMENDED PETITION, NOT SIGNED BY THE SAME EMPLOYEE, BE
TREATED AS THE OPERABLE PETITION IN THIS MATTER, ALTHOUGH IT DID NOT
CONCEDE THAT THE SIGNATORY TO THE ORIGINAL PETITION WAS A SUPERVISOR.
IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO RULE ON
EITHER THE MOTION MADE BY THE AFGE OR THE CONTENTION BY THE ACTIVITY.
4 A/SLMR 368; P. 210; CASE NOS. 40-4946(CU) AND 40-4952(CU); MARCH
14, 1974.
VETERANS ADMINISTRATION HOSPITAL,
COLUMBIA, SOUTH CAROLINA
A/SLMR NO. 368
THIS CASE INVOLVED PETITIONS FOR CLARIFICATION OF UNIT (CU) FILED BY
THE VETERANS ADMINISTRATION HOSPITAL, COLUMBIA, SOUTH CAROLINA
(HOSPITAL) SEEKING TO INCLUDE IN AN EXISTING UNIT OF HOSPITAL
PROFESSIONAL EMPLOYEES, AND AN EXISTING UNIT OF HOSPITAL NONPROFESSIONAL
EMPLOYEES, THOSE PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES FORMERLY
EMPLOYED BY THE VETERANS ADMINISTRATION OUTPATIENT CLINIC, COLUMBIA,
SOUTH CAROLINA. THE PROFESSIONAL AND NONPROFESSIONAL UNITS OF THE
HOSPITAL CURRENTLY ARE REPRESENTED BY LOCAL 1915, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO (AFGE), AND THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1495 (NFFE), REPRESENTED A UNIT OF PROFESSIONAL
EMPLOYEES AND A UNIT OF NONPROFESSIONAL EMPLOYEES AT THE OUTPATIENT
CLINIC. THERE ARE CURRENT AGREEMENTS IN ALL FOUR UNITS. AT THE
HEARING, THE NFFE MOVED THAT THE PETITIONS BE DISMISSED BECAUSE: (1) RA
PETITIONS, NOT CU PETITIONS, WERE THE APPROPRIATE PETITIONS TO SEEK A
DETERMINATION THAT A LABOR ORGANIZATION SHOULD CEASE TO REPRESENT
CERTAIN EMPLOYEES; AND (2) THE SUBJECT PETITIONS WERE UNTIMELY AS THEY
WERE BARRED BY THE EXISTING NFFE NEGOTIATED AGREEMENTS.
THE ASSISTANT SECRETARY DENIED THE NFFE'S MOTION, STATING THAT, UNDER
THE CIRCUMSTANCES IN THESE CASES, CU PETITIONS WERE THE APPROPRIATE
VEHICLES, AND, IN VIEW OF HIS FINDING OF ACCRETION, THE INSTANT CU
PETITIONS DID NOT RAISE A QUESTION CONCERNING REPRESENTATION AND,
THEREFORE, THE AGREEMENT BAR PRINCIPLE WAS NOT APPLICABLE.
IN 1973 THE OUTPATIENT CLINIC IN COLUMBIA WAS ABOLISHED AND ITS
FUNCTIONS OF THE FORMER OUTPATIENT CLINIC WERE ABSORBED THROUGHOUT THE
VARIOUS SUBDIVISIONS WITHIN THE HOSPITAL.
THE ASSISTANT SECRETARY, IN ORDERING THE PROPOSED CLARIFICATIONS,
FOUND THAT THE EMPLOYEES IN THE NONPROFESSIONAL AND PROFESSIONAL UNITS
AT THE FORMER OUTPATIENT CLINIC HAD BEEN THOROUGHLY COMBINED AND
INTEGRATED INTO THE EXISTING UNITS AT THE HOSPITAL REPRESENTED BY THE
AFGE SO AS TO CONSTITUTE ACCRETIONS TO THE AFGE UNITS. IN THIS RESPECT,
HE NOTED THAT FOLLOWING THE MERGER THE FORMER OUTPATIENT CLINIC
EMPLOYEES WERE DISPERSED THROUGHOUT THE HOSPITAL, WORKING SIDE BY SIDE
AND UNDER COMMON SUPERVISION WITH HOSPITAL EMPLOYEES AND, IN MANY
INSTANCES, PERFORMING THE SAME DUTIES AS HOSPITAL EMPLOYEES.
VETERANS ADMINISTRATION HOSPITAL,
COLUMBIA, SOUTH CAROLINA
AND
LOCAL 1915, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
AND
LOCAL 1495, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICER
GEORGE M. HILDRETH. 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, INCLUDING A BRIEF FILED BY
LOCAL 1495, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN CALLED
NFFE, THE ASSISTANT SECRETARY FINDS:
IN CASE NO. 40-4946 (CU), THE ACTIVITY-PETITIONER SEEKS TO CLARIFY AN
EXISTING NONPROFESSIONAL EMPLOYEE UNIT AT THE VETERANS ADMINISTRATION
HOSPITAL, COLUMBIA, SOUTH CAROLINA (HOSPITAL) TO INCLUDE THOSE ELIGIBLE
NONPROFESSIONAL EMPLOYEES PREVIOUSLY REPRESENTED IN A NONPROFESSIONAL
EMPLOYEE UNIT AT THE VETERANS ADMINISTRATION OUTPATIENT CLINIC IN
COLUMBIA.
FURTHER, THE CASE NO. 40-4952 (CU), THE ACTIVITY-PETITIONER SEEKS TO
CLARIFY AN EXISTING PROFESSIONAL EMPLOYEE UNIT AT THE HOSPITAL TO
INCLUDE THOSE PROFESSIONAL EMPLOYEES PREVIOUSLY REPRESENTED IN A
PROFESSIONAL EMPLOYEE UNIT AT THE OUTPATIENT CLINIC. THE
ACTIVITY-PETITIONER ALSO PROPOSES TO CLARIFY THE EXISTING PROFESSIONAL
AND NONPROFESSIONAL EMPLOYEE UNITS AT THE HOSPITAL BY EXCLUDING
TEMPORARY AND INTERMITTENT EMPLOYEES FROM BOTH UNITS AND CONTINUING TO
EXCLUDE PART-TIME EMPLOYEES FROM THE PROFESSIONAL EMPLOYEE UNIT.
ON AUGUST 25, 1967, LOCAL 1915, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, WAS GRANTED EXCLUSIVE
RECOGNITION FOR A UNIT OF NONPROFESSIONAL EMPLOYEES AT THE HOSPITAL,
EXCLUDING OUTPATIENT CLINIC EMPLOYEES; AND ON OCTOBER 23, 1967, IT WAS
GRANTED EXCLUSIVE RECOGNITION FOR A UNIT OF PROFESSIONAL EMPLOYEES AT
THE HOSPITAL, EXCLUDING OUTPATIENT CLINIC EMPLOYEES. /1/ ON SEPTEMBER
19, 1967, THE NFFE WAS GRANTED EXCLUSIVE RECOGNITION FOR A UNIT OF
NONPROFESSIONAL EMPLOYEES AND A UNIT OF PROFESSIONAL EMPLOYEES AT THE
OUTPATIENT CLINIC. /2/
THE RECORD REVEALS THAT IN 1967 THE OUTPATIENT CLINIC, WHICH WAS
LOCATED APPROXIMATELY SIX MILES FROM THE HOSPITAL, WAS PLACED UNDER THE
ADMINISTRATIVE CONTROL OF THE HOSPITAL. IN EARLY OR MID-1973 THE
OUTPATIENT CLINIC WAS ABOLISHED WITH ITS FUNCTIONS AND PERSONNEL BEING
MERGED WITH AND ABSORBED BY THE HOSPITAL. /3/ THE ACTIVITY-PETITIONER
CONTENDS THAT AS A RESULT OF THE MERGER THE EMPLOYEES OF THE FORMER
OUTPATIENT CLINIC BECAME INTERMINGLED WITH THOSE OF THE HOSPITAL AND
ACCRETED TO THE AFGE'S BARGAINING UNITS. THE AFGE TAKES ESSENTIALLY THE
SAME POSITION AS THE ACTIVITY-PETITIONER. THE NFFE, ON THE OTHER HAND,
CONTENDS THAT THERE HAS BEEN NO ALTERATION OF THE EXISTING UNITS OTHER
THAN THE FACT THAT THE EMPLOYEES OF THE OUTPATIENT CLINIC HAVE BEEN
MOVED TO ANOTHER LOCATION AND, THEREFORE, ITS UNITS CONTINUE TO BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION.
AT THE HEARING, THE NFFE MOVED THAT THE SUBJECT PETITIONS BE
DISMISSED ON THE BASIS THAT AN RA PETITION, RATHER THAN A PETITION FOR
CLARIFICATION OF UNIT (CU), IS THE SOLE PROCEDURE AVAILABLE TO AN
ACTIVITY TO RAISE A CONTENTION THAT A LABOR ORGANIZATION SHOULD CEASE TO
BE THE EXCLUSIVE REPRESENTATIVE. FURTHER, IT WAS ASSERTED THAT THE
NFFE'S NEGOTIATED AGREEMENTS COVERING THE EMPLOYEES OF THE OUTPATIENT
CLINIC CONSTITUTED BARS TO THE FILING OF SUCH PETITIONS.
IT HAS BEEN HELD PREVIOUSLY THAT A CU PETITION IS A VEHICLE BY WHICH
PARTIES MAY SEEK TO ILLUMINATE AND CLARIFY, CONSISTENT WITH THEIR
INTENT, THE UNIT INCLUSIONS OR EXCLUSIONS AFTER THE BASIC QUESTION OF
REPRESENTATION HAS BEEN RESOLVED. /4/ IN MY VIEW, THE SUBJECT CU
PETITIONS SEEKING A DETERMINATION AS TO WHETHER ACCRETIONS TO EXISTING
UNITS HAD OCCURRED, WERE APPROPRIATELY FILED WITHIN THE MEANING OF THE
RATIONALE OF HEAD-QUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST.
LOUIS, MISSOURI, CITED ABOVE. /5/ MOREOVER, IN VIEW OF THE FINDING OF
ACCRETION, AS DISCUSSED BELOW, THE INSTANT CU PETITIONS WERE NOT DEEMED
TO HAVE RAISED QUESTIONS CONCERNING REPRESENTATION AND, THUS, THE
POSSIBILITY OF RAISING A RIVAL CLAIM BY SUCH PETITIONS WAS PRECLUDED.
ACCORDINGLY, IT IS CLEAR THAT THE AGREEMENT BAR PRINCIPLE ESTABLISHED
UNDER SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS WOULD
NOT BE APPLICABLE. /6/ UNDER THESE CIRCUMSTANCES, THE NFFE'S MOTION TO
DISMISS IS HEREBY DENIED.
THE RECORD REVEALS THAT THE HOSPITAL PROVIDES GENERAL MEDICAL AND
SURGICAL CARE TO ELIGIBLE VETERANS AND HAS APPROXIMATELY 700 EMPLOYEES.
PRIOR TO ITS DISSOLUTION, THE OUTPATIENT CLINIC PROVIDED CERTAIN
OUTPATIENT MEDICAL SERVICES TO ELIGIBLE VETERANS AND HAD APPROXIMATELY
45 EMPLOYEES. AS NOTED ABOVE, SINCE 1967 THE OUTPATIENT CLINIC HAD BEEN
UNDER THE ADMINISTRATIVE CONTROL OF THE HOSPITAL. THUS, THE OUTPATIENT
CLINIC, AS WELL AS THE HOSPITAL, WAS HEADED BY THE HOSPITAL'S DIRECTOR
AND LIAISON SERVICES BETWEEN THE HOSPITAL AND OUTPATIENT CLINIC WERE
PERFORMED BY TWO EMPLOYEES LOCATED AT THE HOSPITAL. /7/
THE EVIDENCE ESTABLISHES THAT WHEN THE OUTPATIENT CLINIC WAS
DISBANDED AT ITS PREVIOUS LOCATION, IT WAS NOT PLACED AS AN
ORGANIZATIONAL ENTITY WITHIN THE HOSPITAL AND NO ORGANIZATIONAL UNIT
SIMILAR TO THE FORMER OUTPATIENT CLINIC WAS ESTABLISHED WITHIN THE
HOSPITAL TO DEAL SOLELY WITH OUTPATIENTS. RATHER, THE EVIDENCE
ESTABLISHES THAT THE FUNCTIONS AND PERSONNEL OF THE OUTPATIENT CLINIC
WERE DISPERSED THROUGHOUT THE HOSPITAL. THUS, THE EMPLOYEES OF THE
FORMER OUTPATIENT CLINIC NOW WORKED ALONGSIDE AND SHARE COMMON
SUPERVISION WITH EMPLOYEES WHO HAD PREVIOUSLY WORKED AT THE HOSPITAL,
AND, FURTHER, EMPLOYEES WHO TRANSFERRED FROM THE OUTPATIENT CLINIC NOW,
IN MANY INSTANCES, PERFORM THE SAME DUTIES AS EMPLOYEES WHO PREVIOUSLY
WERE LOCATED AT THE HOSPITAL. MOREOVER, WHILE PRIOR TO THE
CONSOLIDATION OF THE HOSPITAL AND THE OUTPATIENT CLINIC EMPLOYEES AT THE
OUTPATIENT CLINIC DEALT SOLELY WITH OUTPATIENTS, NOW VIRTUALLY ALL OF
THE EMPLOYEES OF THE FORMER OUTPATIENT CLINIC DEAL WITH BOTH INPATIENTS
AND OUTPATIENTS AT THE HOSPITAL.
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE NONPROFESSIONAL
AND PROFESSIONAL EMPLOYEES AT THE FORMER OUTPATIENT CLINIC HAVE BEEN
THOROUGHLY COMBINED AND INTEGRATED INTO THE EXISTING UNITS AT THE
HOSPITAL REPRESENTED BY THE AFGE SO AS TO CONSTITUTE ACCRETIONS TO THE
AFGE UNITS. IN THIS REGARD, IT WAS NOTED PARTICULARLY THAT, FOLLOWING
THE MERGER, THE FORMER OUTPATIENT CLINIC EMPLOYEES AND HOSPITAL
EMPLOYEES WORK SIDE BY SIDE AT THE HOSPITAL, SHARE COMMON SUPERVISION
AND, IN MANY INSTANCES, PERFORM THE SAME JOB DUTIES. ACCORDINGLY, I
FIND THAT THE EXISTING UNIT OF HOSPITAL NONPROFESSIONAL EMPLOYEES SHOULD
BE CLARIFIED TO INCLUDE ALL ELIGIBLE NONPROFESSIONAL EMPLOYEES
PREVIOUSLY EMPLOYED AT THE OUTPATIENT CLINIC, AND THAT THE EXISTING UNIT
OF HOSPITAL PROFESSIONALS SHOULD BE CLARIFIED TO INCLUDE ALL ELIGIBLE
PROFESSIONAL EMPLOYEES PREVIOUSLY EMPLOYED AT THE OUTPATIENT CLINIC.
IT IS HEREBY ORDERED THAT THE UNIT OF ALL NONPROFESSIONAL EMPLOYEES
OF THE VETERANS ADMINISTRATION HOSPITAL, COLUMBIA, SOUTH CAROLINA, FOR
WHICH LOCAL 1915, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
WAS GRANTED EXCLUSIVE RECOGNITION ON AUGUST 25, 1967, BE, AND IT HEREBY
IS, CLARIFIED TO INCLUDE IN SAID UNIT ALL ELIGIBLE /8/ NONPROFESSIONAL
EMPLOYEES PREVIOUSLY EMPLOYED BY THE VETERANS ADMINISTRATION OUTPATIENT
CLINIC, COLUMBIA, SOUTH CAROLINA.
IT IS FURTHER ORDERED THAT THE UNIT OF ALL PROFESSIONAL EMPLOYEES OF
THE VETERANS ADMINISTRATION HOSPITAL, COLUMBIA, SOUTH CAROLINA, FOR
WHICH LOCAL 1915, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
WAS GRANTED EXCLUSIVE RECOGNITION ON OCTOBER 23, 1967, BE, AND IT HEREBY
IS, CLARIFIED TO INCLUDE IN SAID UNIT ALL ELIGIBLE PROFESSIONAL
EMPLOYEES PREVIOUSLY EMPLOYED BY THE VETERANS ADMINISTRATION OUTPATIENT
CLINIC, COLUMBIA, SOUTH CAROLINA.
DATED, WASHINGTON, D.C.
MARCH 14, 1974
/1/ SUBSEQUENTLY, ON JULY 2, 1970, THE AFGE WAS CERTIFIED AS THE
EXCLUSIVE REPRESENTATIVE OF ALL NONSUPERVISORY NURSES AT THE HOSPITAL.
THE EVIDENCE ESTABLISHES THAT THERE IS A CURRENT NEGOTIATED AGREEMENT
BETWEEN THE AFGE AND THE HOSPITAL COVERING THE LATTER'S NONPROFESSIONAL
EMPLOYEES WHICH EXPIRES ON NOVEMBER 19, 1974. ALSO, THERE IS A CURRENT
NEGOTIATED AGREEMENT COVERING THE HOSPITAL'S PROFESSIONAL EMPLOYEES,
INCLUDING THE NURSES, WHICH HAS A TERMINATION DATE OF MARCH 13, 1974.
/2/ THE EVIDENCE REVEALS THAT THERE ARE NEGOTIATED AGREEMENTS
COVERING BOTH OF THE UNITS REPRESENTED BY THE NFFE. BOTH AGREEMENTS
HAVE A TERMINATION DATE OF JANUARY 17, 1975.
/3/ THE RECORD DOES NOT DISCLOSE THE EXACT DATE ON WHICH THE
OUTPATIENT CLINIC WAS DISBANDED.
/4/ SEE HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST. LOUIS,
MISSOURI, A/SLMR NO. 160.
/5/ CF. ALSO IN THIS REGARD, U.S. ARMY SAFEGUARD SYSTEMS COMMAND,
P.O. BOX 1500, HUNTSVILLE, ALABAMA, A/SLMR NO. 288.
/6/ CF. ARMY AND AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE CONSOLIDATED
EXCHANGE, FORT DIX, NEW JERSEY, A/SLMR NO. 195.
/7/ PRIOR TO THE ABSORPTION OF THE OUTPATIENT CLINIC, THE HOSPITAL
ALSO HAD AN OUTPATIENT SERVICE; HOWEVER, RATHER THAN BEING A SPECIFIC
ORGANIZATIONAL ENTITY, THIS OPERATION INVOLVED MERELY PHYSICIANS AND
ADMINISTRATIVE PERSONNEL WHO DEALT WITH OUTPATIENTS.
/8/ WITH RESPECT TO THE ACTIVITY-PETITIONER'S CONTENTION THAT THE
PROFESSIONAL AND NONPROFESSIONAL EMPLOYEE UNITS AT THE HOSPITAL SHOULD
BE CLARIFIED TO EXCLUDE TEMPORARY AND INTERMITTENT EMPLOYEES, AND THAT
THE PROFESSIONAL EMPLOYEE UNIT SHOULD BE CLARIFIED TO CONTINUE TO
EXCLUDE PART-TIME EMPLOYEES, I FIND THAT THE EVIDENCE IS INSUFFICIENT TO
ENABLE ME OR TO MAKE SUCH DETERMINATIONS. ACCORDINGLY, I SHALL MAKE NO
FINDINGS IN THIS REGARD.
4 A/SLMR 367; P. 199; CASE NO. 40-4648(CA); MARCH 14, 1974.
U.S. DEPARTMENT OF THE ARMY
UNITED STATES ARMY MISSILE COMMAND,
HUNTSVILLE, ALABAMA
A/SLMR NO. 367
THE PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, FIFTH
DISTRICT, FOR LOCAL 1858 (COMPLAINANT). THE COMPLAINT ALLEGED THAT THE
RESPONDENT ACTIVITY'S FAILURE TO CONSIDER AN ARBITRATOR'S ADVISORY
AWARD, AND TO ISSUE A DECISION WITHIN 30 DAYS AFTER RECEIPT OF SUCH
AWARD AS WELL AS ITS FAILURE TO PROVIDE THE EMPLOYEE INVOLVED OR HIS
PERSONAL REPRESENTATIVE WITH A COPY OF THE AWARD, WHILE PROVIDING SUCH
COPY TO LOCAL 1858, VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER. AT
THE HEARING, THE COMPLAINANT AMENDED ITS COMPLAINT TO ALLEGE THAT THE
RESPONDENT'S CONDUCT IN REJECTING THE UNFAIR LABOR PRACTICE CHARGE FILED
BY THE COMPLAINANT'S CHOSEN REPRESENTATIVE CONSTITUTED AN ADDITIONAL
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER.
THE ASSISTANT SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT NEITHER THE RESPONDENT'S FAILURE TO ISSUE A DECISION
WITHIN 30 DAYS AFTER RECEIPT OF THE ARBITRATOR'S ADVISORY OPINION NOR
ITS FAILURE TO FURNISH THE AFGE FIFTH DISTRICT'S REPRESENTATIVE WITH A
COPY OF THAT DECISION, WHILE FURNISHING AFGE LOCAL 1858 WITH A COPY,
CONSTITUTED A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER. IN
ADDITION, HE ADOPTED THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE
RESPONDENT'S ALLEGED REJECTION OF THE DECEMBER 5, 1972, UNFAIR LABOR
PRACTICE CHARGE FILED BY THE COMPLAINANT WAS NOT VIOLATIVE OF SECTION
19(A)(6) OF THE ORDER.
NOTING THAT THE EVIDENCE ESTABLISHED THAT IN REJECTING THE UNFAIR
LABOR PRACTICE CHARGE, THE RESPONDENT RAISED A QUESTION WHETHER AFGE
LOCAL 1858 HAD APPOINTED A FIFTH DISTRICT NATIONAL REPRESENTATIVE TO ACT
AS ITS AGENT WITH RESPECT TO THE CHARGE, AND THAT, UPON BEING ADVISED
THAT THE FIFTH DISTRICT NATIONAL REPRESENTATIVE WAS INDEED THE AGENT OF
LOCAL 1858, THE RESPONDENT MET WITH AND SOUGHT TO RESOLVE INFORMALLY THE
UNFAIR LABOR PRACTICE CHARGE WITHIN THE 30-DAY PERIOD PROVIDED FOR IN
THE REGULATIONS, THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE
ADMINISTRATIVE LAW JUDGE, THAT FURTHER PROCEEDINGS UNDER SECTION
19(A)(1) WERE UNWARRANTED. HAVING DECIDED THE 19(A)(1) ISSUE ON THE
MERITS, THE ASSISTANT SECRETARY FOUND IT UNNECESSARY TO DECIDE THE
PROCEDURAL QUESTION RAISED BY THE RESPONDENT AS TO WHETHER OR NOT THE
MATTER WAS PROPERLY BEFORE THE ADMINISTRATIVE LAW JUDGE BECAUSE NO
PRE-COMPLAINT CHARGE IN THIS REGARD HAD BEEN FILED WITH THE RESPONDENT
PRIOR TO THE HEARING. ACCORDINGLY, HE ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
U.S. DEPARTMENT OF THE ARMY,
UNITED STATES ARMY MISSILE COMMAND,
HUNTSVILLE, ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, FIFTH DISTRICT,
FOR LOCAL 1858
ON DECEMBER 11, 1973, ADMINISTRATIVE LAW JUDGE REA M. BURROW 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 ACTION, AS SET FORTH IN
THE ATTACHED ADMINISTRATIVE LAW JUDGE'S REPORT AND RECOMMENDATIONS.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS AND 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, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE RESPONDENT, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE AS MODIFIED BELOW. /1/
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT NEITHER
THE RESPONDENT'S FAILURE TO ISSUE A DECISION WITHIN 30 DAYS AFTER
RECEIPT OF THE ARBITRATOR'S ADVISORY OPINION NOR ITS FAILURE TO FURNISH
THE AFGE FIFTH DISTRICT'S REPRESENTATIVE WITH A COPY OF THAT DECISION,
WHILE FURNISHING AFGE LOCAL 1858 WITH A COPY, CONSTITUTED A VIOLATION OF
SECTION 19(A)(1) AND (6) OF THE ORDER. IN ADDITION, I AGREE WITH THE
ADMINISTRATIVE LAW JUDGE THAT THE RESPONDENT'S ALLEGED REJECTION OF THE
DECEMBER 5, 1972, UNFAIR LABOR PRACTICE CHARGE FILED BY THE COMPLAINANT
WAS NOT VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER.
THE RESPONDENT EXCEPTED TO THE ADMINISTRATIVE LAW JUDGE'S FINDING OF
VIOLATION OF SECTION 19(A)(1) ON THE BASIS OF, AMONG OTHER THINGS,
ALLEGED PROCEDURAL DEFECTS. IN THIS REGARD, AT THE HEARING AND IN ITS
EXCEPTIONS THE RESPONDENT RAISED THE CONTENTION THAT NO PRE-COMPLAINT
CHARGE, AS REQUIRED BY THE ASSISTANT SECRETARY'S REGULATIONS, HAD BEEN
FILED WITH RESPECT TO CERTAIN CONDUCT WHICH THE ADMINISTRATIVE LAW JUDGE
FOUND VIOLATIVE OF THE ORDER. SPECIFICALLY, DURING THE OCURSE OF THE
HEARING, THE COMPLAINANT SOUGHT TO AMEND ITS COMPLAINT, ALLEGING AN
ADDITIONAL VIOLATION OF SECTION 19(A)(1) AND (6) OF THE ORDER BASED ON
THE RESPONDENT'S REJECTION OF THE DECEMBER 5, 1972, UNFAIR LABOR
PRACTICE CHARGE FILED BY AN AFGE FIFTH DISTRICT REPRESENTATIVE. THE
RESPONDENT CONTENDED AT THE HEARING THAT THE AMENDMENT OF THE COMPLAINT
AT THAT STAGE OF THE PROCEEDING, IN EFFECT, CONSTITUTED SURPRISE AND
THAT IT WAS UNABLE PROPERLY TO DEFEND AGAINST ALLEGATIONS NOT INCLUDED
IN THE INITIAL UNFAIR LABOR PRACTICE CHARGE OR COMPLAINT. NEVERTHELESS,
THE ADMINISTRATIVE LAW JUDGE ALLOWED THE AMENDMENT AND, ALTHOUGH
DISMISSING THE 19(A)(6) ALLEGATION PERTAINING THERETO, FOUND A VIOLATION
OF SECTION 19(A)(1) BASED ON THE THEORY THAT THE RESPONDENT'S CONDUCT
HEREIN CONSTITUTED AN ATTEMPT TO OBSTRUCT THE COMPLAINANT FROM
CONFRONTING THE RESPONDENT WITH ITS CHARGE AND THAT SUCH ACTION
CONSTITUTED AN INTERFERENCE WITH THE COMPLAINANT'S RIGHTS ASSURED BY THE
ORDER.
WHILE, IN MY VIEW, THE ADMINISTRATIVE LAW JUDGE'S PERMITTING AN
AMENDMENT OF THE COMPLAINT DURING THE COURSE OF THE HEARING WITH RESPECT
TO A MATTER WHICH HAD NOT BEEN THE SUBJECT OF A PRE-COMPLAINT CHARGE
RAISED A SUBSTANTIAL PROCEDURAL QUESTION AS TO WHETHER SUCH MATTER WAS
PROPERLY BEFORE THE ADMINISTRATIVE LAW JUDGE, I FIND IT UNNECESSARY TO
DECIDE THIS PROCEDURAL QUESTION IN VIEW OF THE DISPOSITION OF THE
ALLEGATION INVOLVED ON ITS MERITS. THUS, UNDER THE CIRCUMSTANCES, I
FIND, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT'S
REJECTION OF THE DECEMBER 5, 1972, UNFAIR LABOR PRACTICE CHARGE WAS NOT
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER. IN THIS REGARD, IT WAS
NOTED THAT THE EVIDENCE ESTABLISHED THAT IN REJECTING THE UNFAIR LABOR
PRACTICE CHARGE ON DECEMBER 19, 1972, THE RESPONDENT RAISED A QUESTION
WHETHER AFGE LOCAL 1858 HAD APPOINTED A FIFTH DISTRICT NATIONAL
REPRESENTATIVE TO ACT AS ITS AGENT WITH RESPECT TO THE UNFAIR LABOR
PRACTICE CHARGE, AND THAT, UPON BEING ADVISED THAT THE FIFTH DISTRICT
NATIONAL REPRESENTATIVE WAS INDEED THE AGENT OF AFGE LOCAL 1858, THE
RESPONDENT MET WITH AND SOUGHT TO RESOLVE INFORMALLY THE UNFAIR LABOR
PRACTICE CHARGE WITHIN THE PRESCRIBED 30-DAY PERIOD PROVIDED FOR IN THE
ASSISTANT SECRETARY'S REGULATIONS. IN MY VIEW, SUCH CIRCUMSTANCES DO
NOT WARRANT A FINDING THAT THE RESPONDENT IMPROPERLY SOUGHT TO OBSTRUCT,
PREVENT, OR DELAY THE PROCESSING OF THE UNFAIR LABOR PRACTICE CHARGE.
ACCORDINGLY, I FIND THAT FURTHER PROCEEDINGS IN THIS REGARD UNDER
SECTION 19(A)(1) WERE UNWARRANTED.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-4648 (CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1974
/1/ AT PAGE 4 OF HIS REPORT AND RECOMMENDATIONS, THE ADMINISTRATIVE
LAW JUDGE INADVERTENTLY NOTED THAT THE LETTER FROM COMMANDING GENERAL
DONLEY REJECTING THE UNFAIR LABOR PRACTICE CHARGE IN THIS MATTER WAS
RECEIVED ON DECEMBER 9, 1972, RATHER THAN ON DECEMBER 19, 1972. THIS
INADVERTENCY IS HEREBY CORRECTED.
U.S. DEPARTMENT OF THE ARMY
UNITED STATES ARMY MISSILE COMMAND
HUNTSVILLE, ALABAMA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
FIFTH DISTRICT, FOR LOCAL 1858
JAMES L. NEUSTADT
OFFICE OF THE GENERAL COUNSEL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (AFL-CIO)
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
ARNOLD M. KOHN
LEGAL OFFICER
UNITED STATES ARMY MISSILE COMMAND
REDSTONE ARSENAL, ALABAMA 35009
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491 (HEREIN CALLED THE
ORDER) PURSUANT TO A NOTICE OF HEARING ISSUED BY THE ASSISTANT REGIONAL
DIRECTOR OF THE U.S. DEPARTMENT OF LABOR, LABOR MANAGEMENT SERVICES
ADMINISTRATION, ATLANTA REGION.
ON JANUARY 24, 1973, A COMPLAINT WAS FILED BY KENNETH T. BLAYLOCK AS
NATIONAL VICE PRESIDENT OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
(HEREINAFTER REFERRED TO AS COMPLAINANT AND/OR AFGE) FIFTH DISTRICT, FOR
LOCAL 1858 AGAINST THE DEPARTMENT OF THE ARMY, UNITED STATES ARMY
MISSILE COMMAND HUNTSVILLE, ALABAMA, (HEREINAFTER CALLED THE
RESPONDENT). IN ESSENCE, AFGE CHARGED THE RESPONDENT WITH HAVING
VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER BECAUSE THE MICOM /1/
COMMANDER CONTRA TO ARTICLE VIII, SECTION D OF THE NEGOTIATED AGREEMENT,
FAILED TO CONSIDER AN ADVISORY AWARD MADE IN FAVOR OF RESPONDENT'S
EMPLOYEE ROY D. JONES, BY THE ARBITRATOR IN A GRIEVANCE PROCEEDING AND
ISSUE A DECISION WITHIN 30 DAYS AFTER RECEIPT OF SUCH OPINION AND DID
NOT INFORM THE EMPLOYEE JONES OR HIS PERSONAL REPRESENTATIVE, RICHARD J.
SHAW OF THE AFGE FIFTH DISTRICT OFFICE UNTIL NOVEMBER 20, 1972. THE
FAILURE OF MANAGEMENT TO ABIDE BY THE TIME LIMITS IMPOSED BY SECTION D,
ARTICLE VIII OF THE NEGOTIATED AGREEMENT WITH LOCAL 1858 AND FAILURE TO
PROVIDE THE EMPLOYEE OR HIS PERSONAL REPRESENTATIVE WITH A COPY OF THE
COMMANDING GENERAL'S DECISION WITHIN THE PRESCRIBED TIME LIMITS WAS
ALLEGED TO CONSTITUTE VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE
ORDER. THERE IS ALSO FOR CONSIDERATION THE AMENDED COMPLAINT /2/
ALLEGING THAT GENERAL DONLEY'S ACTION ON DECEMBER 19, 1972, IN REFUSING
TO RECOGNIZE RICHARD J. SHAW, AS THE CHOSEN REPRESENTATIVE AND AGENT IN
THE FILING OF AN UNFAIR LABOR PRACTICE CHARGE ON DECEMBER 5, 1972, WAS
AN ACT WITH CONSTITUTED VIOLATION OF 19(A)(1) AND (6) OF THE ORDER.
A HEARING IN THE ABOVE-ENTITLED MATTER WAS HELD BEFORE THE
UNDERSIGNED ON AUGUST 15, 1973. AT THE HEARING MOTIONS THAT HAD BEEN
MADE BY THE RESPONDENT BEFORE THE ASSISTANT REGIONAL DIRECTOR,
REQUESTING THE APPEARANCE OF KENNETH BLAYLOCK, NATIONAL VICE PRESIDENT,
AFGE, FIFTH DISTRICT AS A WITNESS AND PRODUCTION OF CERTAIN DOCUMENTS,
WERE RENEWED. /3/ NO SIGNIFICANT NEW OR ADDITIONAL INFORMATION WAS
PRESENTED THAT HAD NOT PREVIOUSLY BEEN CONSIDERED BY THE ASSISTANT
REGIONAL DIRECTOR, AND I FOUND NO REASON TO REACH A CONCLUSION DIFFERENT
FROM THAT HE HAD MADE DENYING THE MOTIONS.
THE PARTIES WERE REPRESENTED BY COUNSEL WHO WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES AND TO FILE BRIEFS INCLUDING
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. THERE WERE NO BRIEFS
FILED FOR CONSIDERATION WITH THE UNDERSIGNED.
FROM THE ENTIRE RECORD IN THE CASE INCLUDING OBSERVATION OF WITNESSES
AND THEIR DEMEANOR, AND ALL TESTIMONY ADDUCED AT THE HEARING THE
UNDERSIGNED MAKES THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
THE MATERIAL FACTS AS HEREIN REPORTED WERE NOT IN ESSENTIAL DISPUTE
AND FOUND TO BE AS FOLLOWS:
IN SEPTEMBER 1971 ROY D. JONES, A RESPONDENT EMPLOYEE FILED A
GRIEVANCE AGAINST THE RESPONDENT ALLEGING PROMOTION IRREGULARITIES IN
THE FILLING OF A VACANCY FOR MEATCUTTER LEADER, WL 7407-08. THE MATTER
WAS NOT RESOLVED TO MR. JONES' SATISFACTION AND ON NOVEMBER 15, 1971, HE
REQUESTED THAT THE MATTER BE ARBITRATED. IN HIS LETTER HE STATED: "I
SHALL BE REPRESENTED BY AFGE IN ANY AND ALL MATTERS PERTAINING TO MY
GRIEVANCE." COPIES OF THE LETTER WERE DIRECTED TO AFGE FIFTH DISTRICT
AND AFGE LOCAL 1858. THERE WAS AN ENDORSEMENT TO HIS LETTER SIGNED BY
COY W. MATTOX, PRESIDENT, AFGE LOCAL 1858 THAT "AFGE LOCAL 1858 HAS
APPROVED THE USE OF AN ARBITRATOR TO RESOLVE MR. JONES' GRIEVANCE."
MAJOR GENERAL E. DONLEY, U.S.A., COMMANDING OFFICER, OF THE MISSILE
COMMAND APPROVED THE USE OF AN ARBITRATOR ON FEBRUARY 2, 1972, AND SO
ADVISED MR. JONES.
AN ARBITRATOR, SHERMAN DALLAS, WAS LATER SELECTED. RICHARD J. SHAW,
NATIONAL REPRESENTATIVE, AFGE FIFTH DISTRICT, ACTED AS REPRESENTATIVE
FOR EMPLOYEE JONES AND AFGE LOCAL 1858 AT THE ARBITRATION HEARING ON MAY
24, 1972; MR. SHAW HAD ALSO APPEARED FOR EMPLOYEE JONES AND REPRESENTED
HIM IN CONNECTION WITH HIS GRIEVANCE PROCEEDING; ARNOLD KOHN LEGAL
OFFICER, REPRESENTED THE RESPONDENT AGENCY IN THE GRIEVANCE PROCEEDING
AND AT THE ARBITRATION HEARING. ON AUGUST 21, 1972, ONE COPY EACH, OF
THE ARBITRATION AWARD THAT WAS RECOMMENDED BY THE ARBITRATOR WAS
FORWARDED TO THE RESPONDENT AGENCY AND TO THE AFGE FIFTH DISTRICT
OFFICE, /4/ AFGE LOCAL 1858 AND EMPLOYEE JONES WERE ADVISED OF THE
ARBITRATOR'S RECOMMENDATION BY MR. SHAW.
THE COMMANDING GENERAL, MICOM, ISSUED HIS LETTER OF DECISION ON THE
GRIEVANCE MATTER THAT HAD BEEN SUBJECT TO ARBITRATION ON OCTOBER 18,
1972, AND FORWARDED A COPY OF IT TO THE PRESIDENT OF AFGE LOCAL 1858
WITHOUT NOTIFYING OR FURNISHING COPIES TO AFGE, FIFTH DISTRICT, NATIONAL
REPRESENTATIVE RICHARD J. SHAW OR TO THE EMPLOYEE ROY D. JONES. THE TWO
APPARENTLY DID NOT LEARN OF THE DECISION UNTIL ABOUT NOVEMBER 20, 1972;
WHEN MR. SHAW HAD A TELEPHONE CONVERSATION WITH RAYMOND SWAIM, PRESIDENT
OF AFGE LOCAL 1858.
MR. SHAW TESTIFIED THAT AFTER CONSULTING WITH LOCAL 1858, AN UNFAIR
LABOR PRACTICE CHARGE WAS FILED BY THE FIFTH DISTRICT OFFICER ON BEHALF
OF LOCAL 1858, WITH GENERAL DONLEY ON DECEMBER 5, 1972; THE CHARGE WAS
STATED TO HAVE BEEN FILED AT THE REQUEST OF AFGE LOCAL 1858 PRESIDENT,
RAYMOND J. SWAIM, AND ALLEGED VIOLATION OF THE NEGOTIATED AGREEMENT BY
FAILURE OF THE COMMANDING GENERAL TO ISSUE HIS DECISION WITHIN THE TIME
FRAME OF THE AGREEMENT AND SECONDLY THAT THE LOCAL'S CHOSEN
REPRESENTATIVE IN THE MATTER OF ROY JONES GRIEVANCE WAS NOT FURNISHED A
COPY OF THE COMMANDING GENERAL'S DECISION NOR WAS EMPLOYEE JONES. /5/
MR. SHAW FURTHER TESTIFIED THAT ON DECEMBER 9, 1972, HE RECEIVED A
LETTER FROM COMMANDING GENERAL DONLEY WHEREIN HE SUMMARILY REJECTED THE
UNFAIR LABOR PRACTICE CHARGE FOR THE REASON THAT I WAS NOT THE AGENT OF
AFGE LOCAL 1858 AND HE FELT THAT HIS RESPONSE WAS ONLY TO THE LOCAL 1858
AND HE FELT THAT HIS RESPONSE WAS ONLY TO THE LOCAL AND HE DID NOT HAVE
TO RECOGNIZE THE AFGE DISTRICT OFFICE; /6/ LATER IN DECEMBER 1972 AFGE
LOCAL 1858 PRESIDENT RAYMOND SWAIM NOTIFIED GENERAL DONLEY THAT I (SHAW)
WAS THE AGENT OF AFGE LOCAL 1858 AND HAD HANDLED THE ROY JONES GRIEVANCE
FROM ITS OUTSET. /7/ THE PARTIES WERE UNABLE TO RESOLVE THEIR
DIFFERENCES AND THE UNFAIR LABOR PRACTICE COMPLAINT WAS FILED.
ARTICLE VIII SECTION 2 C OF THE NEGOTIATED AGREEMENT BETWEEN THE
PARTIES PROVIDES THAT "THE ARBITRATOR WILL BE REQUESTED TO RENDER HIS
ADVISORY OPINION TO THE MICOM COMMANDER AND THE UNION AS QUICKLY AS
POSSIBLE, BUT IN ANY EVENT, NO LATER THAN THIRTY (30) CALENDAR DAYS
AFTER THE CONCLUSION OF THE HEARING UNLESS THE PARTIES OTHERWISE AGREE."
SECTION D PROVIDES THAT "THE MICOM COMMANDER WILL CONSIDER THE
OPINION OF THE ARBITRATOR AND WILL RENDER HIS DECISION WITHIN THIRTY
(30) CALENDAR DAYS OF RECEIPT OF SUCH OPINION UNLESS EXTENUATING
CIRCUMSTANCES CAUSE A DELAY. THE DECISION OF THE MICOM COMMANDER WILL
BE FINAL."
THE NEGOTIATED AGREEMENT SPECIFIES THAT IT IS BETWEEN "UNITED STATES
ARMY MISSILE COMMAND . . . AND LOCAL 1858 AFGE." THERE IS NO REFERENCE
TO THE AFGE FIFTH DISTRICT BEING A PARTY TO THE AGREEMENT.
THE POLICY ENUNCIATED BY 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 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 REPRESENTATIVE, INCLUDING
PRESENTATION OF ITS VIEWS TO OFFICIALS OF THE EXECUTIVE BRANCH, THE
CONGRESS, OR OTHER APPROPRIATE AUTHORITY. 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 PRACTICED WITHIN THE AGENCY TO
ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION."
SECTIONS 19(A)(1) AND (6) OF THE ORDER WHICH ARE ALLEGED TO HAVE BEEN
VIOLATED PROVIDE THAT: "AGENCY MANAGEMENT SHALL NOT-(1) INTERFERE WITH,
RESTRAIN, OR COERCE, AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY
THIS ORDER; . . . (6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A
LABOR ORGANIZATION AS REQUIRED BY THIS ORDER."
SECTION 203.14 OF THE REGULATIONS FOR THE DEPARTMENT OF LABOR, OFFICE
OF THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT RELATIONS PROVIDE THAT:
"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."
ONE OF THE CHARGES ALLEGED IN THE COMPLAINT IS THAT THE MICOM
COMMANDING GENERAL FAILED TO CONSIDER AN ADVISORY AWARD RECOMMENDED IN
FAVOR OF ITS EMPLOYEE, ROY D. JONES, BY THE ARBITRATOR IN A GRIEVANCE
PROCEEDING AND ISSUE A DECISION WITHIN 30 DAYS AFTER RECEIPT OF SUCH
OPINION. THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES REQUIRED THE
ARBITRATOR TO RENDER HIS ADVISORY OPINION WITHIN THIRTY (30) CALENDAR
DAYS AFTER CONCLUSION OF THE HEARING. THE HEARING WAS HELD ON MAY 24,
1972, AND THE ADVISORY OPINION ISSUED ON AUGUST 21, 1972. THE MICOM
COMMANDING GENERAL THEREAFTER ISSUED HIS LETTER OF DECISION IN THE
MATTER ON OCTOBER 18, 1972. VIEWING THE TOTAL PICTURE, IT IS EVIDENT
THAT NEITHER THE COMPLAINANT OR THE RESPONDENT CONSIDERED THE MATTER OF
SUFFICIENT URGENCY WHILE IT WAS BEFORE THE ARBITRATOR FROM MAY 24 TO
AUGUST 21, 1972, TO REQUEST THAT THE OPINION BE EXPEDITED. THE MICOM
COMMANDING GENERAL ISSUED HIS DECISION LESS THAN TWO MONTHS AFTER THE
ADVISORY OPINION WAS PROMULGATED BUT NOT WITHIN THE 30-DAY PROVISION OF
ARTICLE VIII, SECTION (D) OF THE NEGOTIATED AGREEMENT. WHILE RESPONDENT
CONTENDED, AND THERE MAY VERY WELL HAVE BEEN EXTENUATING CIRCUMSTANCES
CAUSING DELAY IN ISSUING THE FINAL DECISION ON OCTOBER 18, 1972, IT TOOK
NO ACTION TO ADVISE THE COMPLAINANT OF THE EXISTENCE OR NATURE THEREOF
NOR DID THE COMPLAINANT REQUEST THAT THE DECISION BE EXPEDITED.
THUS, WITH RESPECT TO THE UNFAIR LABOR PRACTICE ALLEGATION BASED ON
THE ALLEGED FAILURE OF THE RESPONDENT TO ISSUE ITS DECISION WITHIN
THIRTY DAYS AFTER RECEIPT OF THE ARBITRATOR'S OPINION. I FIND THE DELAY
DID NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEE JONES IN THE
EXERCISE OF ANY RIGHTS ASSURED BY THE ORDER. HIS CLAIM HAD PROCEEDED TO
HEARING ON MAY 24, 1972, AND UNDERWENT CONSIDERATION BY THE ARBITRATOR
UNTIL HIS RECOMMENDATION ISSUED ON AUGUST 21, 1972. THEREAFTER, THE
MICOM COMMANDER HAD THE CASE UNDER CONSIDERATION UNTIL HIS DECISION WAS
ISSUED ON OCTOBER 18, 1972. IT IS CLEAR THAT THE FAILURE OF RESPONDENT
TO FILE ITS DECISION WITHIN 30 DAYS AFTER RECEIPT OF THE ARBITRATOR'S
OPINION IS NOT THE GRAVAMAN OF THE COMPLAINT HEREIN BUT REFUSAL OF THE
RESPONDENT TO RECOGNIZE AFGE FIFTH DISTRICT NATIONAL REPRESENTATIVE AS
EMPLOYEE JONES REPRESENTATIVE.
EVERY DISPUTE WHICH ARISES AS TO INTERPRETATION OR APPLICATION OF A
NEGOTIATED AGREEMENT DOES NOT NECESSARILY CONSTITUTE A 19(A)(6)
VIOLATION SIMPLY BECAUSE ONE PARTY ACCUSES THE OTHER OF VIOLATING SUCH
AGREEMENT. VIEWING THE CIRCUMSTANCES IN THIS CASE, I FIND THAT THE
RESPONDENT'S FAILURE TO ISSUE A DECISION WITHIN 30 DAYS AFTER RECEIPT OF
THE ARBITRATOR'S ADVISORY OPINION DID NOT CONSTITUTE A REFUSAL TO
CONSULT, CONFER, OR NEGOTIATE WITHIN THE MEANING OF SECTION 19(A)(6) OF
THE ORDER.
IN U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, ARMY MATERIAL
COMMAND, AUTOMATED LOGISTICS MANAGEMENT SYSTEMS AGENCY, A/SLMR 211, IT
WAS HELD THAT WITH RESPECT TO THE UNFAIR LABOR PRACTICE ALLEGATION BASED
ON ALLEGED FAILURE OF THE RESPONDENT TO REPLY TO THE CHARGE FILED BY THE
COMPLAINANT WITHIN 30 DAYS OF ITS RECEIPT, THAT SUCH A REPLY WAS NOT
REQUIRED UNDER SECTION 203.2 OF THE ASSISTANT SECRETARY'S REGULATIONS
AND THAT IN ANY EVENT, A FAILURE TO FOLLOW THE REGULATIONS IN THIS
REGARD WOULD NOT CONSTITUTE A REFUSAL TO CONSULT, CONFER, OR NEGOTIATE
WITHIN THE MEANING OF THE ORDER.
THE FAILURE OF THE RESPONDENT TO PROVIDE ITS EMPLOYEE, ROY D. JONES,
AND HIS REPRESENTATIVE, RICHARD J. SHAW, OF THE AFGE FIFTH DISTRICT
OFFICE WITH A COPY OF THE MICOM COMMANDING GENERAL'S LETTER OF DECISION
ON OCTOBER 18, 1972, HAS BEEN ALLEGED, WITH THE FAILURE TO TIMELY REPLY,
AS CONSTITUTING VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE ORDER.
IT IS UNDISPUTED THAT THE PRESIDENT OF AFGE LOCAL 1858 WAS FURNISHED A
COPY OF THE DECISION.
IN VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA,
A/SLMR NO. 87, THE ACTIVITY WAS HELD TO HAVE VIOLATED SECTION 19(A)(6)
OF THE ORDER WHERE IT UNILATERALLY ALTERED THE MANNER IN WHICH SHIFTS
WOULD BE SCHEDULED IN NURSING SERVICE AND PUT INTO EFFECT A SCHEDULE
WHICH WAS AT VARIANCE WITH THE TERMS OF ITS NEGOTIATED AGREEMENT. IN
AFFIRMING THE ADMINISTRATIVE LAW JUDGE'S DECISION THE ASSISTANT
SECRETARY STATED IN PERTINENT PART AS FOLLOWS:
"THE OBLIGATION OF AN AGENCY OR ACTIVITY TO CONSULT, CONFER AND
CONFER AND NEGOTIATE WITH
AN EXCLUSIVE REPRESENTATIVE TO NEGOTIATE A BINDING AGREEMENT WOULD
BECOME MEANINGLESS IF A
PARTY TO SUCH RELATIONSHIP WAS FREE TO MAKE UNILATERAL CHANGES IN THE
AGREEMENT
NEGOTIATED. EVERY DISPUTE WHICH ARISES AS TO INTERPRETATION OR
APPLICATION OF A PROVISION OF
A NEGOTIATED AGREEMENT DOES NOT NECESSARILY CONSTITUTE A 19(A)(6) OR
19(B)(6) VIOLATION SIMPLY
BECAUSE ONE PARTY ACCUSES THE OTHER OF VIOLATING SUCH AGREEMENT.
HOWEVER, WHERE, WITHOUT
PRIOR NEGOTIATIONS, A PARTY INITIATES A COURSE OF ACTION WHICH
CLEARLY CONTRAVENES THE AGREED
UPON TERMS OF ITS NEGOTIATED AGREEMENT . . . THE BARGAINING
REQUIREMENTS OF THE ORDER HAVE
BEEN VIOLATED".
THE NEGOTIATED AGREEMENT DATED OCTOBER 30, 1969, IS BETWEEN THE
UNITED STATES ARMY MISSILE COMMAND AND LOCAL 1858 AFGE. SIGNATURES TO
THE AGREEMENT INCLUDE THE PRESIDENT OF LOCAL 1858 AND THE ACTING
COMMANDER, USA-MICOM. ARTICLE VIII, SECTION 2(C) OF THE AGREEMENT
DESIGNATES THE MICOM COMMANDER AND THE UNION AS THE PARTIES TO WHOM THE
ARBITRATOR WILL FURNISH HIS DECISION WITHIN 30 DAYS AFTER THE CONCLUSION
OF THE HEARING IN THE MATTER. IN THE ABSENCE OF ANY CONTRA PROVISION
WHICH IS NOT SHOWN IN THIS CASE, THIS IS CONSTRUED TO RELATE TO THE
PRESIDENT OF AFGE LOCAL 1858 AS THE OFFICIAL REPRESENTATIVE OF THE UNION
TO WHOM ONE OF THE COPIES OF THE ARBITRATOR'S DECISION WILL BE
FURNISHED.
ARTICLE VIII SECTION 2(D) OF THE NEGOTIATED AGREEMENT REQUIRES THE
MICOM COMMANDER TO CONSIDER THE OPINION OF THE ARBITRATOR AND RENDER A
DECISION WITHIN 30 CALENDAR DAYS OF RECEIPT OF SUCH OPINION UNLESS
EXTENUATING CIRCUMSTANCES CAUSE A DELAY. THE DECISION OF THE MICOM
COMMANDER IS FINAL. THERE IS NO SPECIFIC PROVISION IN THIS SECTION AS
TO WHOM DISPOSITION OF THE DECISION WILL BE MADE. SINCE THE AFGE LOCAL
1858 IS THE OFFICIAL PARTY TO THE AGREEMENT FOR THE UNION AND SECTIONS 2
A, B, C, D, OF THE AGREEMENT RELATE TO ARBITRATION PROCEDURES, IT IS
REASONABLE TO CONCLUDE THAT SECTIONS 2C AND D MUST BE READ IN
CONJUNCTION TO ASCERTAIN THE INTENT COMPREHENDED BY THE PARTIES AS TO
THE TERMS OF AGREEMENT. IT IS EVIDENT THAT THE PRESIDENT IS THE
OFFICIAL OF AFGE LOCAL 1858 TO RECEIVE THE COPY OF THE MICOM COMMANDER'S
DECISION ON BEHALF OF THE UNION UNDER THE NEGOTIATED AGREEMENT.
I FIND THAT THE RESPONDENT DID NOT VIOLATE THE PROVISIONS OF ARTICLE
VIII SECTION 2D OF ITS AGREEMENT OR SECTIONS 19(A)(1) AND (6) OF THE
ORDER AS TO SERVICE OF THE MICOM COMMANDER'S DECISION ON THE PRESIDENT
OF AFGE LOCAL 1858. AFGE LOCAL 1858 WAS NOT FREE TO MAKE A UNILATERAL
CHANGE WITHOUT PRIOR NEGOTIATIONS AS TO WHOM WOULD GET A COPY OF THE
MICOM COMMANDER'S OCTOBER 18, 1972 DECISION DIFFERENT FROM THAT
COMPREHENDED BY NEGOTIATED AGREEMENT.
THE AFGE FIFTH DISTRICT REPRESENTATIVE WHO IN THE COMPLAINT AND AT
THE HEARING CLAIMED THAT IT WAS ACTING AS DESIGNATED AGENT OF AFGE LOCAL
1858 HAD NO RIGHTS SUPERIOR TO THOSE OF ITS PRINCIPAL UNDER THE
NEGOTIATED AGREEMENT. FURTHER, IT WAS NOT CLAIMED AT THE HEARING THAT
IT HAD ANY GREATER RIGHTS UNDER THE ORDER THAN AFFORDED AFGE LOCAL 1858
OR THAT THE LOCAL HAD INITIATED ANY ACTION FOR ISSUANCE OF DECISIONS
SUBJECT TO ARBITRATION DIFFERENT FROM THAT CONTAINED IN THE NEGOTIATED
AGREEMENT. THUS, UNLIKE THE SITUATION IN A/SLMR DECISION NO. 87, SUPRA,
IT IS THE COMPLAINANT HEREIN AND NOT THE ACTIVITY WHO IS INSISTING ON A
COURSE OF ACTION WHICH IS CONTRA TO THE TERMS OF THE NEGOTIATED
AGREEMENT. THE FINDING OF A/SLMR NO. 87 THAT ". . . WHERE WITHOUT
PRIOR NEGOTIATIONS, A PARTY INITIATES A COURSE OF ACTION WHICH CLEARLY
CONTRAVENES THE AGREED UPON TERMS OF ITS NEGOTIATED AGREEMENT . . . THE
BARGAINING REQUIREMENTS HAVE BEEN VIOLATED," APPLIES TO THE UNION AS
WELL AS TO THE AGENCY AND MAY NOT BE UNILATERALLY CHANGED WITHOUT PRIOR
NEGOTIATION.
THE COMPLAINANT AT THE HEARING REFERRED TO A/SLMR DECISION NO. 242
/8/ AS SUPPORTING ITS CONTENTION THAT LOCAL 1858 HAS THE RIGHT TO CHOOSE
ITS REPRESENTATIVE AND SINCE IT HAD DESIGNATED RICHARD J. SHAW OF THE
FIFTH DISTRICT OFFICE AS ITS REPRESENTATIVE, THE REFUSAL OF RESPONDENT
TO FURNISH HIM A COPY OF THE MICOM COMMANDER'S OCTOBER 16, 1972, LETTER
OF DECISION 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 AGENTS AND ACTIVITIES HAVE THE CORRESPONDING
OBLIGATION TO AFFORD THE EXCLUSIVE REPRESENTATIVE SUCH AN OPPORTUNITY.
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
MANAGEMENT DID NOT INTERFERE IN ANYWAY WITH LOCAL 1858'S DESIGNATED AFGE
REPRESENTATIVE SHAW FROM PURSUING EMPLOYEE JONES' GRIEVANCE ACTION TO
COMPLETION THROUGH ARBITRATION PROCEEDING AND HEARING AND CONSIDERATION
BY THE MICOM COMMANDER. IT WAS NOT THE RESPONDENT WHO CHOSE AFGE LOCAL
1858 AS THE PARTY TO BE SERVED THE MICOM COMMANDER'S DECISION BUT THE
LOCAL ITSELF IN ITS NEGOTIATED AGREEMENT. IT FOLLOWS FROM THE FOREGOING
THAT THE RESPONDENT DID NOT VIOLATE THE AGREEMENT OF SECTION 19(A)(6) OF
THE ORDER BY NOT SENDING A COPY OF THE OCTOBER 18, 1972 DECISION TO THE
AFGE FIFTH DISTRICT REPRESENTATIVE. IN ADDITION, THE RESPONDENT DID NOT
BY FAILURE TO FURNISH THE AFGE FIFTH DISTRICT REPRESENTATIVE A COPY
ENGAGE IN ANY TYPE OF CONDUCT WHICH INTERFERED WITH, RESTRAINED OR
COERCED ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE
ORDER IN SECTION 19(A)(1).
THERE REMAINS FOR CONSIDERATION THE ALLEGATION IN THE AMENDMENT TO
THE COMPLAINT AT THE HEARING WHETHER THE MICOM COMMANDER'S REFUSAL ON
DECEMBER 19, 1972 TO RECOGNIZE RICHARD J. SHAW AS THE CHOSEN
REPRESENTATIVE AND AGENT OF EMPLOYEE ROY D. JONES AND AFGE LOCAL 1858 IN
THE FILING OF AN UNFAIR LABOR PRACTICE CHARGE ON DECEMBER 5, 1972, WAS
AN ACT WHICH VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER.
HERETOFORE, I FOUND THERE WAS NO VIOLATION OF SECTIONS 19(A)(1) AND
(6) OF THE ORDER BY REASON OF THE MICOM COMMANDER SENDING A COPY OF THE
OCTOBER 18, 1972 DECISION TO THE PRESIDENT OF AFGE LOCAL 1858, ONLY,
BECAUSE SERVICE WAS ACCOMPLISHED WITHIN THE TERMS OF THE NEGOTIATED
AGREEMENT BETWEEN THE PARTIES; THE QUESTION OF ENTITLEMENT OF THE AFGE
FIFTH DISTRICT REPRESENTATIVE TO SERVICE OF THE MICOM COMMANDER'S
DECISION WAS NOT DETERMINED ON THE BASIS OF RECOGNITION, BUT UNDER THE
TERMS OF THE NEGOTIATED CONTRACT BETWEEN AFGE LOCAL 1858 AND THE
RESPONDENT.
THERE WAS NO NEED TO QUESTION RECOGNITION OF THE REPRESENTATIVE
BEFORE THE MICOM COMMANDER ENTERED THE OCTOBER 18, 1972 DECISION BECAUSE
AFGE FIFTH DISTRICT REPRESENTATIVE RICHARD J. SHAW HAD IN FACT BEEN
SHOWN TO HAVE APPEARED THROUGHOUT THE GRIEVANCE AND ARBITRATION
PROCEEDINGS FOR THE EMPLOYEE, ROY D. JONES AND LOCAL 1858.
IT IS UNDISPUTED THAT AFTER THE MICOM COMMANDER'S DECISION WAS
ISSUED, RICHARD J. SHAW, AFGE FIFTH DISTRICT REPRESENTATIVE FILED AN
UNFAIR LABOR PRACTICE CHARGE ON BEHALF OF LOCAL 1858 AGAINST THE
RESPONDENT ON SEPTEMBER 5, 1972, AND THAT THE CHARGE WAS SUMMARILY
REJECTED ON DECEMBER 19, 1972, BECAUSE MR. SHAW WAS NOT CONSIDERED BY
THE RESPONDENT TO BE THE AGENT OF AFGE LOCAL 1858. RECOGNITION OF THE
REPRESENTATIVE AT THIS STAGE DID BECOME AN ISSUE FOR CONSIDERATION.
SECTION 19(A)(1) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT SHALL
NOT INTERFERE WITH, RESTRAIN OR COERCE AN EMPLOYEE IN THE EXERCISE OF
RIGHTS ASSURED BY THE ORDER. EMPLOYEE JONES AND LOCAL 1858 HAD
DESIGNATED AFGE FIFTH DISTRICT REPRESENTATIVE SHAW TO REPRESENT THEM IN
THE AFORESAID GRIEVANCE PROCEEDING AND THE SUBSEQUENT UNFAIR LABOR
PRACTICE ACTION. THE REGULATIONS /9/ PROVIDE THAT AN EMPLOYEE, AN
AGENCY, ACTIVITY, OR LABOR ORGANIZATION MAY FILE A COMPLAINT UNDER
SECTION 19(A) OF THE ORDER. THE CHARGE IS A PRELIMINARY STEP TOWARD
FILING A FORMAL COMPLAINT. IT IS NOT WITHIN THE PROVINCE OF A
RESPONDENT TO INTERFERE WITH OR CONTROL THE SELECTION OF COMPLAINANT'S
REPRESENTATIVE IN A COLLECTIVE BARGAINING, GRIEVANCE OR UNFAIR LABOR
PRACTICE PROCEEDING WHEN IT IS BEING CONFRONTED WITH A CHARGE OR
COMPLAINT OF VIOLATION OF ITS AGREEMENT.
I CONCLUDE THAT THE RESPONDENT'S REJECTION OF THE DECEMBER 5, 1972
CHARGE FILED BY AFGE FIFTH DISTRICT REPRESENTATIVE RICHARD SHAW ON
DECEMBER 19, 1972, WAS AN UNWARRANTED ATTEMPT TO PREVENT OR OBSTRUCT THE
COMPLAINANT FROM CONFRONTING THE RESPONDENT WITH ITS CHARGE AND SUCH
ACTION CONSTITUTED AN INTERFERENCE IN THE EXERCISE OF THE COMPLAINANT'S
RIGHTS ASSURED BY SECTION 1 OF THE ORDER AND A VIOLATION OF SECTION
19(A)(1) OF THE ORDER. /10/
I DO NOT FIND IT MATERIAL TO DETERMINE WHETHER THE AFGE FIFTH
DISTRICT COUNCIL IS A SEPARATE AND AUTONOMOUS LABOR ORGANIZATION WITH
AUTHORITY TO FILE A COMPLAINT IN ITS OWN NAME AS URGED BY RESPONDENT.
IT IS SUFFICIENT THAT IT IS AN INTERMEDIATE ECHELON BETWEEN THE LOCAL
AND NATIONAL AFGE ORGANIZATION AND IS RECOGNIZED IN THE ABSENCE OF SOME
CONTRA AGREEMENT BETWEEN THE CONTRACTING PARTIES, AS EMPOWERED TO AID
AND ASSIST THE LOCAL UNION. THE TESTIMONY AT THE HEARING REFLECTED THAT
AIDING AND ASSISTING LOCAL LABOR ORGANIZATIONS IN THE AFGE IN FILING
CHARGES AND COMPLAINTS ON BEHALF OF THE LOCAL AND EMPLOYEES IT
REPRESENTS IS A FREQUENT AND COMMON PRACTICE AND A PART OF THE DUTIES
FULFILLED BY VARIOUS DISTRICT COUNCILS.
THE RECORD REVEALS THAT AFTER RESPONDENT SUMMARILY REJECTED THE
UNFAIR LABOR PRACTICE CHARGE FILED ON DECEMBER 5, 1972, IT DID IN FACT
CONFER AND CONSULT WITH THE COMPLAINANT REGARDING ITS REPRESENTATION. I
DO NOT FIND THAT THE ALLEGATION OF A VIOLATION OF SECTION 19(A)(6) OF
THE ORDER IS SUBSTANTIATED BY THE EVIDENCE.
ON THE BASIS OF THE FOREGOING AND THE ENTIRE RECORD /11/ I FIND:
(1) THAT THE FAILURE OF THE RESPONDENT TO ISSUE A DECISION WITHIN 30
CALENDAR DAYS AFTER RECEIPT OF THE ARBITRATOR'S OPINION AND FURNISH A
COPY THEREOF TO AFGE FIFTH DISTRICT REPRESENTATIVE RICHARD J. SHAW DID
NOT CONSTITUTE VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE ORDER, AS
ALLEGED;
(2) THAT THE RESPONDENT'S REJECTION OF THE DECEMBER 5 UNFAIR LABOR
PRACTICE CHARGE FILED BY AFGE REPRESENTATIVE RICHARD J. SHAW, ON BEHALF
OF LOCAL 1858 CONSTITUTED AN INTERFERENCE IN THE EXERCISE OF
COMPLAINANT'S RIGHTS ASSURED BY SECTION 1 OF THE ORDER AND A VIOLATION
OF SECTION 19(A)(1) OF THE ORDER. SUCH REJECTION AND THE EVIDENCE OF
RECORD, HOWEVER, DO NOT SUBSTANTIATE A VIOLATION OF SECTION 19(A)(6) OF
THE ORDER.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I
RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER
DESIGNATED TO EFFECTUATE THE POLICIES OF THE ORDER. I ALSO RECOMMEND
THAT THE SECTION 19(A)(1) ALLEGATION WITH RESPECT TO FAILURE OF
RESPONDENT TO ISSUE A DECISION WITHIN 30 CALENDAR DAYS AFTER RECEIPT OF
THE ARBITRATOR'S OPINION AND FURNISH A COPY THEREOF TO AFGE FIFTH
DISTRICT REPRESENTATIVE RICHARD SHAW BE DISMISSED ALONG WITH ALL
ALLEGATIONS OF VIOLATIONS 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
ARMY, UNITED STATES ARMY MISSILE COMMAND, HUNTSVILLE, ALABAMA, SHALL:
(1) CEASE AND DESIST FROM-
A. INTERFERING WITH OR ATTEMPTING TO CONTROL THE UNION'S CHOICE OF
REPRESENTATIVE IN ANY
COLLECTIVE BARGAINING PROCEEDING;
B. INTERFERING WITH OR ATTEMPTING TO OBSTRUCT A REPRESENTATIVE
SELECTED BY THE UNION FROM
CONFRONTING IT WITH A CHARGE OF ALLEGED VIOLATIONS OF SECTION 19(A)
OF THE ORDER AND ITS
NEGOTIATED AGREEMENT.
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. POST AT ITS FACILITIES AT THE UNITED STATES ARMY MISSILE COMMAND,
HUNTSVILLE, ALABAMA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX A" ON FORMS TO BE
FURNISHED BY THE ASSISTANT
SECRETARY FOR LABOR-MANAGEMENT RELATIONS. UPON RECEIPT OF SUCH FORMS
THEY WILL BE SIGNED BY
THE COMMANDING OFFICER, UNITED STATES ARMY MISSILE COMMAND,
HUNTSVILLE, ALABAMA, AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR SIXTY (60) CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICE TO EMPLOYEES ARE
CUSTOMARILY PLACED. THE COMMANDING
OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT 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: DECEMBER 11, 1973
WASHINGTON, D.C.
WE WILL NOT INTERFERE WITH OR ATTEMPT TO CONTROL THE SELECTION OF A
REPRESENTATIVE BY A UNION HAVING EXCLUSIVE REPRESENTATION OF EMPLOYEES
IN ANY COLLECTIVE BARGAINING GRIEVANCE OR UNFAIR LABOR PRACTICE
PROCEEDING WHEN ATTEMPTING TO CONFRONT THE RESPONDENT WITH A CHARGE OF
VIOLATIONS OF THE ORDER AND/OR THE NEGOTIATED AGREEMENT.
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 . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR SIXTY (60) CONSECUTIVE DAYS FROM
THE DATE 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 OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR, WHOSE ADDRESS IS 1371 PEACHTREE
STREET, NORTHEAST, ROOM 110, ATLANTA, GEORGIA 33309. (TABLE OMITTED)
/1/ MISSILE COMMAND.
/2/ AMENDMENT PERMITTED DURING HEARING OVER OBJECTION OF RESPONDENT,
TRANSCRIPT PP. 246 AND 247. ALSO SEE COMPLAINANT'S OPENING STATEMENT,
P. 22, AND ADMINISTRATIVE LAW JUDGE'S STATEMENT, P. 180, REGARDING
ADVANCED NOTICE AS TO THE SUBJECT AMENDMENT.
/3/ ON AUGUST 7, 1973, THE ACTING ASSISTANT REGIONAL DIRECTOR
(FORMERLY REFERRED TO AS REGIONAL ADMINISTRATOR) DENIED RESPONDENT'S
MOTION TO HAVE KENNETH T. BLAYLOCK PRESENT AT THE HEARING ON THE BASIS
THAT IT DID NOT APPEAR THAT HIS TESTIMONY WOULD BE NECESSARY IN THE
MATTER; THAT RICHARD J. SHAW WOULD REPLACE HIM AND BE AVAILABLE TO
TESTIFY TO THOSE MATTERS MATERIAL TO THE ISSUE AS REQUESTED OF MR.
BLAYLOCK. AS TO PRODUCTION OF DOCUMENTS, RICHARD J. SHAW WAS DIRECTED
TO PRODUCE (1) THE AFGE CONSTITUTION; (2) THE BY-LAWS OF AFGE; AND (3)
COPIES OF ANY AND ALL AGREEMENTS PURPORTING TO SET FORTH A CONTRACTUAL
RELATIONSHIP BETWEEN THE FIFTH DISTRICT AFGE AND THE U.S. ARMY MISSILE
COMMAND. WITH THE EXCEPTION OF THE ABOVE ALL OTHER REQUESTS FOR
PRODUCTION OF DOCUMENTS WERE DENIED AS NOT BEING DESCRIBED WITH
SUFFICIENT PARTICULARITY TO ESTABLISH NECESSITY OR RELEVANCE.
/4/ TR. PP. 47, 48, 49 ARTICLE VIII, SECTION 1 OF THE OCTOBER 30,
1969, NEGOTIATED AGREEMENT BETWEEN AFGE LOCAL 1858 AND THE RESPONDENT
PROVIDED IN PART THAT "SUCH ARBITRATION SHALL BE ADVISORY IN NATURE WITH
ANY DECISION OR RECOMMENDATION SUBJECT TO THE APPROVAL OF THE MICOM
COMMANDER . . ."
/5/ TR. PP. 60, 61, 62.
/6/ TR. PP. 62, 63.
/7/ TR. P. 62.
/8/ U.S. ARMY HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY, FORT
JACKSON LAUNDRY FACILITY, FORT JACKSON, SOUTH CAROLINA.
/9/ REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT
RELATIONS, 203.1, 203.2.
/10/ AS TO REPRESENTATION OF AN EXCLUSIVE REPRESENTATIVE PURSUANT TO
SECTION 10(E) OF THE ORDER SEE A/SLMR DECISION, NO. 242, SUPRA.
/11/ ATTACHED HERETO AS APPENDIX "B" ARE ERRATA SHEETS SHOWING
CHANGES IN THE TRANSCRIPT OF ITEMS, THE COMPLAINANT AND RESPONDENT
SUBMITTED FOR REQUIRED CORRECTION WHICH ARE APPROVED.
4 A/SLMR 366; P. 195; CASE NO. 72-3655; MARCH 14, 1974.
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE EXCHANGE
A/SLMR NO. 366
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL UNION 1001 (COMPLAINANT)
AGAINST ARMY AND AIR FORCE EXCHANGE SERVICE, VANDENBERG AIR FORCE BASE
EXCHANGE (RESPONDENT) ALLEGING THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF THE ORDER BY ASSIGNING JOSEFA GROSSI TO UNDESIRABLE
WORK HOURS AND TERMINATING HER BECAUSE OF HER UNION ACTIVITIES.
THE EVIDENCE ESTABLISHED THAT GROSSI COMMENCED EMPLOYMENT WITH THE
RESPONDENT IN SEPTEMBER 1969 AS A REGULAR PART-TIME COOK AND WORKED
WITHOUT MATERIAL INCIDENT UNTIL NOVEMBER 1971, AT WHICH TIME SHE WAS
TOLD SHE WOULD HAVE TO WORK SIX DAYS A WEEK INSTEAD OF HER CUSTOMARY
FIVE. GROSSI OBJECTED AND FILED A GRIEVANCE OVER THE MATTER WHICH WAS
DENIED BY THE RESPONDENT. IN JANUARY 1972, THE RESPONDENT ADVISED
GROSSI THAT SHE WAS NO LONGER NEEDED AS A PART-TIME COOK DURING HER
ASSIGNED WORK HOURS AND OFFERED HER TWO ALTERNATIVE POSITIONS, NEITHER
OF WHICH PROVED ACCEPTABLE TO GROSSI. THEREAFTER, THE RESPONDENT MADE
SEVERAL ATTEMPTS TO FASHION A SCHEDULE THAT WOULD PROVE SATISFACTORILY
TO GROSSI, AND, FINALLY, AFTER RECEIVING NO RESPONSE AND ISSUING A
WRITTEN WARNING, THE RESPONDENT TERMINATED HER EMPLOYMENT.
THE RECORD REVEALED THAT GROSSI HAD BEEN ACTIVE IN SOLICITING SUPPORT
FOR A LABOR ORGANIZATION IN AN UNSUCCESSFUL ATTEMPT TO ORGANIZE THE
RESPONDENT'S EMPLOYEES DURING 1970 AND 1971 AND IN A SUBSEQUENT
SUCCESSFUL ORGANIZING CAMPAIGN.
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE COMPLAINANT HAD
FAILED TO ESTABLISH EITHER THAT GROSSI WAS A VICTIM OF DISPARATE
TREATMENT OR THAT THERE WAS ANY CAUSAL RELATION BETWEEN HER UNION
ACTIVITIES AND THE RESPONDENT'S DECISION TO CHANGE HER WORK HOURS AND
SUBSEQUENTLY TO TERMINATE HER. FURTHER, THE ADMINISTRATIVE LAW JUDGE
NOTED THAT RESPONDENT HAD SOUGHT TO FIND A WAY TO ACCOMMODATE GROSSI'S
PERSONAL NEEDS WHILE SATISFYING THE DEMANDS OF ITS OPERATION. UNDER ALL
OF THE CIRCUMSTANCES, HE CONCLUDED THAT THE COMPLAINANT HAD NOT MET ITS
BURDEN OF PROVING THE ALLEGATIONS IN THE COMPLAINT BY A PREPONDERANCE OF
THE EVIDENCE AND RECOMMENDED THAT SUCH COMPLAINT BE DISMISSED IN ITS
ENTIRETY.
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 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE. ACCORDINGLY, HE ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE EXCHANGE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION 1001
ON JANUARY 4, 1974, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT 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. 72-3655 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1974
IN THE MATTER OF
ARMY AND AIR FORCE EXCHANGE SERVICE,
VANDENBERG AIR FORCE BASE EXCHANGE,
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL UNION 1001,
MR. HOMER R. HOISINGTON
REGIONAL BUSINESS AGENT
RIALTO, CALIFORNIA
AND
MS. MARIE BROGAN
PRESIDENT OF LOCAL 1001
LOMPOC, CALIFORNIA
JOHN W. BOWLIN AND ROBERT D. EDWARDS, ESQS.
DALLAS, TEXAS
BEFORE: GORDON J. MYATT
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED MAY 9, 1972, /1/ UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
UNION 1001 (HEREINAFTER CALLED THE UNION) AGAINST ARMY AND AIR FORCE
SERVICE, VANDENBERG AIR FORCE BASE EXCHANGE (HEREINAFTER CALLED THE
RESPONDENT), A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE REGIONAL
ADMINISTRATOR FOR THE SAN FRANCISCO REGION ON JUNE 28, 1973. THE
COMPLAINT ALLEGED, AMONG OTHER THINGS, THAT THE RESPONDENT ENGAGED IN
VIOLATIONS OF SECTION 19(A)(1) AND (2) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD ON THIS MATTER ON JULY 26, 1973, IN SANTA MARIA,
CALIFORNIA. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE ON THE ISSUES INVOLVED.
A BRIEF WAS FILED BY THE RESPONDENT AND DULY CONSIDERED BY ME IN
ARRIVING AT MY DETERMINATION IN THIS MATTER.
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
RECOMMENDATION:
THE RESPONDENT ACTIVITY IS AN ORGANIZATIONAL ELEMENT OF THE ARMY AND
AIR FORCE BASE. THE RESPONDENT IS BASICALLY A RETAIL ORGANIZATION WHOSE
PURPOSE IS TO SUPPLY MERCHANDISE AND SERVICES TO AUTHORIZED BASE
PATRONS.
ON JANUARY 26, 1972, THE UNION PETITIONED THE U.S. DEPARTMENT OF
LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION TO BE ALLOWED TO
REPRESENT THE HOURLY EMPLOYEES OF THE RESPONDENT. ON JANUARY 19, 1973,
THE UNION WAS DULY CERTIFIED AS THE REPRESENTATIVE OF THE EMPLOYEES AT
THE BASE EXCHANGE.
JOSEFA GROSSI, THE PERSON AROUND WHOM THE CONTROVERSY IN THIS CASE
CENTERS, WAS FIRST HIRED BY THE BASE EXCHANGE IN AGUSUT 1960. THIS
PERIOD OF EMPLOYMENT LASTED UNTIL EARLY JULY 1968. AT THAT TIME MRS.
GROSSI WAS CLASSIFIED AS A MOBILE DRIVER OPERATING A VEHICLE AS PART OF
A MOBILE CONCESSIONAIRE BUSINESS RUN BY RESPONDENT. SHE WAS REEMPLOYED
BY RESPONDENT ON SEPTEMBER 15, 1969, AS A REGULAR PART-TIME EMPLOYEE AND
WAS CLASSIFIED AS A COOK. SHE WORKED THE GRILL AT A CAFETERIA KNOWN AS
THE ORBIT INN. AS A REGULAR PART-TIME EMPLOYEE, MRS. GROSSI WORKED
APPROXIMATELY 34 HOURS PER WEEK WITH VIRTUALLY NO OVERTIME EXCEPT IN
EMERGENCY SITUATIONS. HER HOURS WERE FROM 9:00 A.M. TO 3:00 P.M.,
MONDAYS THROUGH FRIDAYS. IT WAS UNDERSTOOD BY MANAGEMENT OFFICIALS THAT
MRS. GROSSI HAD CUSTODY OF A YOUNG GRANDDAUGHTER AND THAT IT WAS
NECESSARY FOR HER TO GET THE CHILD OFF TO SCHOOL IN THE MORNING AND TO
BE AT HOME WHEN SHE RETURNED.
SOMETIME DURING THE SUMMER OF 1971, MANAGEMENT OFFICIALS DETERMINED
THAT ANOTHER ONE OF ITS FACILITIES, THE MISSILE MAN INN, WAS NOT
OPERATING PROFITABLY BECAUSE OF A LACK OF CUSTOMERS. A DECISION WAS
MADE TO REDUCE THE SERVICES OFFERED BY THAT OPERATION AND A REGULAR
FULL-TIME COOK WAS TRANSFERRED TO THE MORNING SHIFT AT THE ORBIT INN.
THUS MRS. GROSSI AND THE FULL-TIME COOK WERE BOTH ON DUTY DURING THE
HOURS THAT MRS. GROSSI WORKED.
IN NOVEMBER 1971, MRS. GROSSI WAS TOLD BY HER SUPERVISOR THAT SHE
WOULD HAVE TO WORK SIX DAYS A WEEK INSTEAD OF THE CUSTOMARY FIVE WHICH
SHE HAD BEEN WORKING IN THE PAST. MRS. GROSSI WAS UNHAPPY OVER THIS
DEVELOPMENT AND FILED A GRIEVANCE. SHE WAS REPRESENTED BY KARL DEUTSCH,
THEN PRESIDENT OF AN AFGE LOCAL AT THE BASE. MANAGEMENT TOOK THE
POSITION THAT THE GRIEVANCE HAD TO BE DISALLOWED BECAUSE IT QUESTIONED
THE SUBSTANTIVE CONTENT OF A BASE EXCHANGE REGULATION GOVERNING THE
WORKING HOURS OF EMPLOYEES. /2/
ON JANUARY 6, 1972, MRS. SHEEHAN, THEN MANAGER AT THE ORBIT INN,
INFORMED MRS. GROSSI THAT TWO COOKS WERE NOT NEEDED AT THAT FACILITY.
MRS. SHEEHAN OFFERED MRS. GROSSI A JOB AS A GRILL COOK AT THE MISSILE
MAN INN. THE HOURS FOR THIS JOB WERE INTENDED TO BE FROM 6:30 A.M.
UNTIL 1:00 P.M. WITH THE WEEKENDS FREE. ACCORDING TO JOSEPH CARACCI,
THE FOOD OPERATIONS MANAGER, A DECISION WAS MADE TO OPEN THE MISSILE MAN
INN FOR BREAKFAST ONLY BECAUSE PATRONAGE WAS DECREASING AT OTHER HOURS.
THIS CREATED AN OPENING FOR A GRILL COOK AND SINCE THE TWO COOKS WERE
NOT NEEDED AT THE ORBIT INN, THE JOB WAS CONSIDERED ONE WHICH WOULD
ALLOW MRS. GROSSI TO WORK 5 DAYS A WEEK.
AT THE TIME THAT MRS. SHEEHAN OFFERED THE JOB AT THE MISSILE MAN INN,
SHE ALSO PRESENTED ANOTHER ALTERNATIVE TO MRS. GROSSI. SHE STATED THAT
MRS. GROSSI COULD WORK AS A GRILL COOK AT THE ORBIT INN, BUT THE HOURS
WOULD HAVE TO BE FROM 5:00 P.M. UNTIL MIDNIGHT. MRS. GROSSI BECAME VERY
DISTURBED OVER THE PROSPECT OF CHANGING HER HOURS AND LEFT WORK DUE TO
ILLNESS.
ALTHOUGH MRS. GROSSI REMAINED AWAY FROM HER JOB ON SICK LEAVE,
DEUTSCH CONTINUED TO MAKE SOME EFFORT TO HAVE MANAGEMENT ACCOMMODATE HER
SPECIAL HOURS. ON JANUARY 17, DEUTSCH MET WITH JOHNSON, THE GENERAL
MANAGER, STARDAHL, PERSONNEL MANAGER, AND CARACCI IN AN EFFORT TO
DISCUSS THE GROSSI PROBLEM. THE MANAGEMENT OFFICIALS AGREED TO MAKE AN
EFFORT TO FIND A JOB DURING THE HOURS THAT MRS. GROSSI INDICATED SHE
PREFERRED TO WORK.
ON JANUARY 25, MRS. GROSSI CAME TO THE BASE EXCHANGE AND MET WITH
CARACCI. HE RENEWED THE OFFERS WHICH WERE MADE TO HER ON JANUARY 6, BY
SHEEHAN. CARACCI TESTIFIED THAT HE DID NOT CONSIDER MRS. GROSSI FOR ANY
OTHER POSITIONS BECAUSE THE PEAK LOADS AT THE BASE EXCHANGE FACILITIES
WERE AT 7:00 A.M. OR 6:00 P.M.; HOURS WHICH WERE ALWAYS BEFORE OR AFTER
THE TIME PERIODS THAT MRS. GROSSI INDICATED SHE WAS AVAILABLE FOR WORK.
MRS. GROSSI AGREED TO LOOK FOR A BABYSITTER TO TAKE CARE OF HER
GRANDCHILD SO THAT SHE WOULD BE ABLE TO WORK IN THE MORNINGS. HOWEVER,
SHE DID NOT DO THIS RIGHT AWAY AND CONTINUED TO REMAIN AWAY FROM HER JOB
ON LEAVE WITHOUT PAY. /3/
ON MARCH 30, MRS. GROSSI RETURNED FROM A CAMPING TRIP AND MET WITH
STARDAHL AT THE BASE. SHE WAS ACCOMPANIED BY MARIE BROGAN, PRESIDENT OF
THE UNION. CARACCI WAS ALSO CALLED INTO THE MEETING. BROGAN WANTED TO
DISCUSS THE MATTER OF MRS. GROSSI'S HOURS WITH THE BASE EXCHANGE
OFFICIALS. CARACCI TOOK THE POSITION THAT THE UNION WAS NOT THE
EXCLUSIVE REPRESENTATIVE AT THAT TIME AND THAT IT WAS NOT NECESSARY TO
DISCUSS THE MATTER WITH BROGAN PRESENT. BROGAN LEFT AFTER HAVING
ADVISED MRS. GROSSI TO FIND OUT WHAT MANAGEMENT WAS GOING TO OFFER HER.
BECAUSE MRS. GROSSI HAD TO LEAVE TO PAY THE RENTAL FEE ON HER CAMPING
TRAILER, SHE MADE ARRANGEMENTS TO MEET WITH THE BASE EXCHANGE OFFICIALS
ON APRIL 3. ON APRIL 3, THE PARTIES MET AND THE RESPONDENT'S OFFICIALS
OFFERED HER A JOB AS A SANDWICH MAKER FROM 2:00 P.M. TO 5:00 P.M.,
SUNDAY THROUGH THURSDAY. THE OFFER ALSO CARRIED THE UNDERSTANDING THAT
IN THE EVENT AN EMPLOYEE CALLED IN SICK OR WAS ON VACATION LEAVE, SHE
WOULD WORK WHATEVER HOURS WERE NECESSARY TO REPLACE THEM. MRS. GROSSI
ADVISED THE MANAGEMENT OFFICIALS THAT SHE WOULD CONSIDER THE OFFER AND
LET THEM KNOW WHETHER SHE INTENDED TO ACCEPT THE POSITION. ON APRIL 14,
1972, JOHNSON WROTE MRS. GROSSI A LETTER REPEATING THE OFFER MADE ON
APRIL 3, AND ADVISED HER THAT SINCE THE EXCHANGE HAD NOT RECEIVED ANY
WORD FROM HER, MANAGEMENT WAS PLACING HER ON NINETY DAY
LEAVE-WITHOUT-PAY STATUS EFFECTIVE APRIL 7. THE LETTER CONCLUDED BY
STATING THAT IF MANAGEMENT DID NOT HEAR FROM HER BY THE END OF THE
NINETY DAYS, THE EXCHANGE WOULD HAVE TO INITIATE SEPARATION ACTION.
ON JULY 17, 1972, JOHNSON WROTE ANOTHER LETTER TO MRS. GROSSI
ADVISING HER THAT INASMUCH AS SHE HAD FAILED TO CONTRACT THE EXCHANGE
OFFICIALS REGARDING THEIR OFFER AND HER NINETY DAY PERIOD OF LEAVE
WITHOUT PAY HAD EXPIRED, THE EXCHANGE WAS TAKING STEPS TO EFFECT
SEPARATION ACTION. IN TERMS OF THE RESPONDENT'S PERSONNEL RECORDS, MRS.
GROSSI WAS CONSIDERED SEPARATED FOR "ABANDONMENT OF POSITION."
THE TESTIMONY INDICATES THAT MRS. GROSSI WAS ACTIVE IN SOLICITING
EMPLOYEE SUPPORT FOR THE AFGE LOCAL WHEN IT WAS ATTEMPTING TO ORGANIZE
THE EXCHANGE EMPLOYEES IN 1970 AND 1971. /4/ MRS. GROSSI TESTIFIED THAT
SOMETIME DURING THE SUMMER OF 1971, STARDAHL CALLED HER INTO THE OFFICE
AND QUESTIONED HER ABOUT WHERE AND WHAT TIMES SHE WAS DISCUSSING UNION
MATTERS WITH EMPLOYEES. THIS WAS THE ONLY OCCASION THAT MRS. GROSSI WAS
EVER QUESTIONED BY A MANAGEMENT OFFICIAL ABOUT UNION ACTIVITIES, AND IT
IS APPARENT THAT STARDAHL WAS SEEKING TO ASCERTAIN WHETHER SHE WAS
DISCUSSING UNION MATTERS DURING WORKING HOURS IN WORKING AREAS.
THE RECORD IS NOT PRECISE REGARDING MRS. GROSSI'S ACTIVITIES ON
BEHALF OF LOCAL 1001 AFTER JANUARY 1972, BUT THE TESTIMONY WOULD SEEM TO
INDICATE THAT SHE WAS ASSISTING BROGAN IN SOLICITING EMPLOYEE SUPPORT
EVEN THOUGH SHE WAS NOT ACTIVELY WORKING AT THE BASE EXCHANGE. SHE
ACCOMPANIED BROGAN ON OCCASION TO MEETINGS WITH MANAGEMENT. AFTER LOCAL
1001 WAS CERTIFIED IN JANUARY 1973, SHE BECAME A MEMBER OF THE UNION
CONSULTATION TEAM.
THE THRUST OF THE COMPLAINT IS THAT THE RESPONDENT INTERFERED WITH,
RESTRAINED AND COERCED MRS. GROSSI IN THE EXERCISE OF RIGHTS ASSURED BY
THE EXECUTIVE ORDER, AND THEREBY DID DISCOURAGE MEMBERSHIP IN THE UNION
BY DISCRIMINATING AGAINST HER REGARDING HIRE, TENURE, PROMOTION AND
OTHER CONDITIONS OF EMPLOYMENT. THE COMPLAINANT CONTENDS THAT THE
RESPONDENT ENGAGED IN THE ALLEGED MISCONDUCT BECAUSE MRS. GROSSI WAS
ACTIVELY INVOLVED IN ACTIVITIES ON BEHALF OF THE UNION.
TRY AS I MIGHT, I CANNOT FIND SUPPORT TO SUSTAIN THESE CONTENTIONS IN
THIS RECORD. THE EVIDENCE INDICATES THAT ON ONE OCCASION MRS. GROSSI
WAS QUESTIONED ABOUT HER UNION ACTIVITIES BY A MANAGEMENT OFFICIAL IN
1971. BUT THIS SINGLE INCIDENT, AND THE CIRCUMSTANCES UNDER WHICH IT
OCCURRED, IS NOT SUFFICIENT TO ESTABLISH A NEXUS BETWEEN HER UNION
ACTIVITY AND THE DECISION TO CHANGE HER WORKING HOURS IN JANUARY 1972.
FURTHERMORE, IT IS EVIDENT THAT NO OTHER MANAGEMENT OFFICIAL, ESPECIALLY
THOSE WHO HAD IMMEDIATE SUPERVISORY RESPONSIBILITY OVER MRS. GROSSI,
EVER QUESTIONED HER ABOUT ACTIVITIES ON BEHALF OF THE UNION. NOR IS
THERE ANY EVIDENCE THAT THEY WERE EVEN AWARE OF HER UNION INVOLVEMENT.
THE COMPLAINANT HAS NOT COME FORWARD WITH ANY EVIDENCE TO ESTABLISH
THAT MRS. GROSSI WAS THE VICTIM OF DISPARATE TREATMENT. INDEED, THE
EVIDENCE COMPELS THE CONCLUSION THAT SHE WAS RECEIVING PREFERENTIAL
TREATMENT IN ORDER TO ACCOMMODATE HER PERSONAL PROBLEMS. WHEN THE
RESPONDENT REQUIRED HER TO WORK 6 DAYS A WEEK INSTEAD OF 5 IN NOVEMBER
1971, IT WAS MERELY APPLYING THE REGULATION PROMULGATED BY THE EXCHANGE
SERVICE TO ALL OF THE BASE EXCHANGE EMPLOYEES.
MORE CENTRAL TO THE ISSUES HERE, THE RECORD FAILS TO SUPPORT A
FINDING THAT MRS. GROSSI'S JOB ASSIGNMENT WAS CHANGED IN JANUARY 1972,
BECAUSE OF ACTIVITIES ON BEHALF OF THE UNION. RATHER, THE STATE OF THIS
RECORD LEADS TO THE CONCLUSION THAT THE OFFICIALS OF THE RESPONDENT WERE
SEEKING TO FIND A WAY TO ACCOMMODATE MRS. GROSSI'S PERSONAL NEEDS WHILE
ATTEMPTING TO MEET THE DEMANDS ON THE PLACEMENT OF THEIR PERSONNEL AS
DICTATED BY BUSINESS NEEDS. THE COMPLAINANT HAS FAILED TO COME FORWARD
WITH ANY EVIDENCE, OTHER THAN A VISCERAL FEELING, THAT THE CHANGE IN
MRS. GROSSI'S ASSIGNMENT WAS MOTIVATED BY REASONS OTHER THAN THOSE
ASSERTED BY THE RESPONDENT. THERE IS NO SHOWING AS TO WHAT JOBS WERE
AVAILABLE DURING WHAT HOURS. NOR IS THERE ANY SUBSTANTIVE EVIDENCE,
OTHER THAN THE BALD ASSERTION BY THE COMPLAINANT'S WITNESSES, THAT OTHER
EMPLOYEES WERE SELECTED TO WORK THE HOURS WHICH MRS. GROSSI DESIRED.
MOREOVER, THERE IS NOTHING HERE TO INDICATE THAT THE THREE JOB OFFERS
MADE TO MRS. GROSSI IN 1972, WERE NOT MADE IN GOOD FAITH. NOR IS THERE
ANY EVIDENCE OF ANY OTHER EMPLOYEE EXPERIENCING UNLAWFUL TREATMENT
BECAUSE OF UNION MEMBERSHIP OR ACTIVITIES ON BEHALF OF THE UNION.
ACCORDINGLY, I FIND AND CONCLUDE THAT THE COMPLAINANT HAS NOT MET THE
BURDEN OF PROVING THE ALLEGATIONS OF THE COMPLAINT BY A PREPONDERANCE OF
THE PROBATIVE EVIDENCE AS REQUIRED BY SECTION 203.14 OF THE REGULATIONS
GOVERNING THIS PROCEEDING. MOODY AIR FORCE BASE, GEORGIA, A/SLMR NO.
248.
UPON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, I RECOMMEND THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
DATED: JANUARY 4, 1974
WASHINGTON, D.C.
/1/ UNLESS OTHERWISE INDICATED ALL DATES HEREIN REFER TO THE YEAR
1972.
/2/ IT IS EVIDENT FROM THE TESTIMONY THAT A REGULATION HAD BEEN
PROMULGATED BY THE EXCHANGE SERVICE ALLOWING INDIVIDUAL BASE EXCHANGES
TO WORK EMPLOYEES UP TO 10 HOURS PER DAY FOR SIX DAYS A WEEK. THIS
REGULATION WAS THE BASIS OF THE DECISION TO INCREASE THE DAYS IN MRS.
GROSSI'S WORK WEEK.
/3/ MRS. GROSSI TESTIFIED THAT SHE DID NOT ACTIVELY SEEK A BABYSITTER
UNTIL SOMETIME IN FEBRUARY, AND WHEN SHE INFORMED CARACCI OF THIS, HE
TOLD HER THAT THE MORNING JOB AT THE MISSILE MAN INN WAS FILLED. SHE
ALSO TESTIFIED THAT SHE TOLD STARDAHL SOMETIME IN FEBRUARY THAT SHE WAS
AVAILABLE TO WORK ANYTIME BETWEEN THE HOURS OF 8:00 A.M. AND 5:00 P.M.
/4/ ALTHOUGH THE RECORD IS NOT CLEAR, THE TESTIMONY WOULD APPEAR TO
INDICATE THAT THE AFGE LOCAL WAS ACTIVE AMONG THE EXCHANGE EMPLOYEES
UNTIL THE BEGINNING OF 1972. AT THAT TIME THE COMPLAINANT BECAME ACTIVE
AMONG THE EMPLOYEES AND ACHIEVED CERTIFICATION ON JANUARY 19, 1973.
4 A/SLMR 365; P. 190; CASE NO. 40-4715(CA); MARCH 14, 1974.
DIRECTORATE OF MAINTENANCE, MANUFACTURE
AND REPAIR PRODUCTION BRANCH (MANPSM),
WARNER ROBINS AIR MATERIEL AREA (WRAMA),
ROBINS AIR FORCE BASE, GEORGIA
A/SLMR NO. 365
THE UNFAIR LABOR PRACTICE COMPLAINT IN THIS CASE FILED AGAINST THE
DIRECTORATE OF MAINTENANCE, MANUFACTURE AND REPAIR PRODUCTION BRANCH,
WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE (RESPONDENT), BY
LOCAL 987, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE), ALLEGED
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (2) OF EXECUTIVE ORDER
11491, AS AMENDED, BY DENYING AN EMPLOYEE MEMBER OF THE COMPLAINANT THE
OPPORTUNITY TO ACT OR BE DETAILED AS A SUPERVISOR EITHER DURING
TEMPORARY ABSENCES OR AFTER THE RETIREMENT OF THE EMPLOYEE'S SUPERVISOR
BECAUSE THE EMPLOYEE WAS A SHOP STEWARD.
BASED ON CREDITED EVIDENCE, THE ADMINISTRATIVE LAW JUDGE FOUND THAT
THE RESPONDENT HAD A RULE OR PRACTICE THAT A UNION SHOP STEWARD COULD BE
DETAILED OR ACT AS A SUPERVISOR, BUT THAT SUCH A PERSON COULD NOT HOLD
BOTH POSITIONS SIMULTANEOUSLY AND WOULD HAVE TO RESIGN THE POSITION AS
SHOP STEWARD FOR THE PERIOD HE SERVED AS SUPERVISOR. FURTHER, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE RECORD FAILED TO ESTABLISH THAT
THE UNION STEWARD IN THIS MATTER WAS OFFERED LESS OF AN OPPORTUNITY TO
SERVE AS A SUPERVISOR THAN ANY OTHER JOURNEYMAN EMPLOYEE. NOTING THAT
THE EVIDENCE REVEALED THAT A SUPERVISOR DEALT WITH EMPLOYEE AND UNION
GRIEVANCES AT THE EARLY STAGES AND THAT, DURING THE FIRST STEPS OF THE
GRIEVANCE PROCEDURE, DEALT WITH THE UNION SHOP STEWARDS, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT TO ALLOW A PERSON TO ACT AS BOTH
A UNION SHOP STEWARD AND A SUPERVISOR WOULD, IN FACT, CREATE A CONFLICT
OF INTEREST AND PUT THE PERSON IN A POSITION WHERE HE COULD NOT PERFORM
EITHER OF HIS RESPONSIBILITIES PROPERLY. ACCORDINGLY, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE RESPONDENT'S RULE HEREIN WAS
CLEARLY NOT UNREASONABLE AND DID NOT INTERFERE WITH EMPLOYEE RIGHTS
ASSURED BY THE ORDER. HE THEREFORE RECOMMENDED THAT THE COMPLAINT BE
DISMISSED.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE MATTER, 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.
DIRECTORATE OF MAINTENANCE, MANUFACTURE
AND REPAIR PRODUCTION BRANCH (MANPSM),
WARNER ROBINS AIR MATERIEL AREA (WRAMA),
ROBINS AIR FORCE BASE, GEORGIA
AND
LOCAL 987, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
ON JANUARY 11, 1974, ADMINISTRATIVE LAW JUDGE SAMUEL A. CHAITOVITZ
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. 40-4715 (CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1974
IN THE MATTER OF
DIRECTORATE OF MAINTENANCE, MANUFACTURE
AND REPAIR PRODUCTION BRANCH (MANPSM)
WARNER ROBINS AIR MATERIEL AREA (WRAMA)
ROBINS AIR FORCE BASE, GEORGIA,
AND
LOCAL 987, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
JACKIE K. COOPER, ATTORNEY ADVISOR
OFFICE OF STAFF JUDGE ADVOCATE
WRAMA/JA
ROBINS AIR FORCE BASE, GEORGIA 31098
MICHAEL A. DEEP, ATTORNEY ADVISOR
OFFICE OF STAFF JUDGE ADVOCATE
WRAMA/JA
ROBINS AIR FORCE BASE, GEORGIA 31098
BOBBY L. HARNAGE, SPECIAL ASSISTANT
LOCAL 987, AFGE
141 SOUTH COMMERCIAL CIRCLE
WARNER ROBINS, GEORGIA 31093
BEFORE: SAMUEL A. CHAITOVITZ
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED MARCH 1, 1973, UNDER EXECUTIVE ORDER
11491, AS AMENDED (HEREINAFTER CALLED THE ORDER) BY AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, LOCAL 987 (HEREIN CALLED THE COMPLAINANT OR
UNION) AGAINST DIRECTORATE OF MAINTENANCE MANUFACTURE AND REPAIR
PRODUCTION BRANCH, WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE
BASE, (HEREIN CALLED RESPONDENT OR ACTIVITY), A NOTICE OF HEARING ON
COMPLAINT WAS ISSUED BY THE REGIONAL ADMINISTRATOR FOR THE ATLANTA
REGION ON MAY 15, 1973.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED ON JULY 10,
1973, IN WARNER ROBINS GEORGIA. 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 AND SUBMITTED BRIEFS.
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 WARNER ROBINS AIR MATERIEL AREA IS DIVIDED INTO SEVERAL
DIRECTORATES ONE OF WHICH IS THE DIRECTORATE OF MAINTENANCE. THIS
DIRECTORATE IS INTURN SUBDIVIDED INTO, DIVISIONS, THEN BRANCHES, THEN
SECTIONS AND FINALLY UNITS. THE UNION IS THE COLLECTIVE BARGAINING
REPRESENTATIVE FOR A UNIT OF CIVILIAN EMPLOYEES OF THE ACTIVITY.
PRIOR TO AUGUST 1972, MR. GEORGE STOKES WAS THE WOOD-WORKING FOREMAN
IN THE MAINTENANCE DIRECTORATE; HE WAS A FIRST LEVEL SUPERVISOR.
FOREMAN STOKES RETIRED FROM SERVICE ON OR ABOUT AUGUST 18, 1972. IT IS
UNDISPUTED THAT HE WAS A SUPERVISOR WITHIN THE MEANING OR THE ORDER AND
PROCESSED GRIEVANCES AT THE FIRST STEP WITH THE UNION SHOP STEWARDS. AT
ALL TIMES MATERIAL HEREIN, MR. JACK JOHNSON WAS A CIVILIAN EMPLOYEE OF
THE ACTIVITY IN THE WOOD-WORKING SHOP, A MEMBER OF THE COLLECTIVE
BARGAINING UNIT REPRESENTED BY THE UNION AND THE BRANCH UNION SHOP
STEWARD.
SOME THREE OR FOUR WEEKS PRIOR TO HIS RETIREMENT FOREMAN STOKES
APPROACHED EMPLOYEES UNDER HIS SUPERVISION, INCLUDING MR. JOHNSON, AND
ASKED IF THEY WERE INTERESTED IN ACTING AS A SUPERVISOR DURING MR.
STOKES' TEMPORARY ABSENCES. /1/ MR. STOKES TESTIFIED THAT, AFTER
CHECKING WITH UNIT CHIEF FRED A. CAPPS, HE ADVISED MR. JOHNSON THAT HE
COULD SERVE AS A SUPERVISOR AND BE A SHOP STEWARD AT THE SAME TIME. MR.
STOKES TESTIFIED THAT MR. JOHNSON STATED TO MR. STOKES HE NEED ONLY GIVE
UP THE SHOP STEWARD'S POSITION FOR THE PERIOD OF TIME HE ACTED AS
SUPERVISOR. MR. STOKES TESTIFIED FURTHER THAT MR. JOHNSON'S NAME WAS
INCLUDED ON THE LIST HE WAS COMPILING ALTHOUGH MR. JOHNSON HAD NOT YET
STATED WHETHER HE WOULD RESIGN HIS SHOP STEWARD POSITION FOR THOSE
PERIODS OF TIME HE WOULD SERVE AS A SUPERVISOR. MR. STOKES TESTIFIED
THAT HE WAS UNAWARE OF MR. JOHNSON EVER HAVING BEEN APPOINTED TO ACT AS
A SUPERVISOR DURING ANY OF MR. STOKES' TEMPORARY ABSENCES. /2/
MR. LAWRENCE D. REESE /3/ TESTIFIED THAT HE HAD ADVISED MR. JOHNSON
DURING A MEETING WITH MR. STOKES AND MR. JOHNSON IN MR. STOKES' OFFICE
ON OR ABOUT AUGUST 10, THAT MR. JOHNSON COULD ACT AS A SUPERVISOR SO
LONG AS HE RELINQUISHED HIS SHOP STEWARD'S POSITION WHILE SERVING AS
SUPERVISOR. THIS CONVERSATION WAS NOT SPECIFICALLY DENIED BY MR.
JOHNSON. /4/
PRIOR TO FOREMAN STOKES' RETIREMENT MR. BARNIE GILBERT AND MR.
JOHNSON MET WITH DIVISION MANAGER YAEGER AT THEIR REGULAR MONTHLY
MEETING AND MR. JOHNSON ASKED MR. YAEGER WHY HE COULD NOT BE DETAILED
IN MR. STOKES ABSENCE. MR. YAEGER REPLIED "YOU CAN, I HAD BETTER NOT
FIND ANYONE DOING ANYTHING ABOUT IT, DISCRIMINATING AGAINST MY
STEWARDS."
DURING THE LATTER PART OF AUGUST 1972, MR. LEVI ARNOLD WAS
TEMPORARILY DETAILED TO ACT AS THE SUPERVISOR AFTER MR. STOKES'
RETIREMENT. MR. JOHNSON ALLEGES THAT APPARENTLY AFTER MR. ARNOLD'S
APPOINTMENT HE ASKED MR. FRED A. CAPPS, UNIT CHIEF, THE SECOND LEVEL
SUPERVISOR, WHY HE (JOHNSON) COULD NOT ACT AS SUPERVISOR. MR. JOHNSON
ALLEGES FURTHER THAT MR. CAPPS ADVISED HIM EITHER THAT DAY OR THE NEXT
THAT IT WAS "SETTLED," WHICH MR. JOHNSON TOOK TO MEAN THAT HE (JOHNSON)
COULD ACT AS SUPERVISOR.
DURING APPROXIMATELY THE MIDDLE PORTION OF OCTOBER 1971, WHEN MR.
ARNOLD'S DETAIL WAS ALMOST UP MR. CAPPS WENT DOWN THE LIST OF JOURNEYMEN
AND ONLY TWO WERE INTERESTED IN BEING DETAILED AS A SUPERVISOR, MR. JACK
JOHNSON AND MR. JACK LASTER. THEY WERE CALLED TO MR. ARNOLD'S OFFICE BY
MR. CAPPS. MR. JOHNSON ASKED IF HE COULD SERVE A TEMPORARY AS
SUPERVISOR AND MR. CAPPS REPLIED THAT HE THOUGHT MR. JOHNSON ALREADY
KNEW THE ANSWER, BUT HE WOULD VERIFY IT. MR. CAPPS THEN TELEPHONED MR.
REESE, WHO ADVISED MR. CAPPS THAT A UNION STEWARD COULD SERVE AS A
TEMPORARY SUPERVISOR SO LONG AS HE GAVE UP HIS DUTIES AS SHOP STEWARD.
MR. CAPPS SO ADVISED MR. JOHNSON. MR. CAPPS ADVISED MR. JOHNSON AND
MR. LASTER THAT THE DETAIL WOULD BE FOR A PERIOD UNTIL THE JOB WAS
PERMANENTLY FILLED, ANYWHERE FROM TWO WEEKS TO TWO MONTHS. MR. JOHNSON
STATED THAT HE WOULD NOT GIVE UP HIS SHOP STEWARD JOB FOR A TWO-WEEK
DETAIL. MR. CAPPS STATED THAT "I SAID I COULD NOT TELL YOU WHETHER IT
WILL BE FOR TWO WEEKS OR TWO MONTHS." MR. CAPPS TOLD MR. JOHNSON AND MR.
LASTER THAT IT WAS BETWEEN THEM. EACH SAID AT FIRST THAT HE DID NOT
WANT IT AND THEN MR. JOHNSON TOLD MR. LASTER THAT HE (LASTER) SHOULD
TAKE IT. MR. LASTER TOOK THE OFFER AND SERVED AS SUPERVISOR FOR ABOUT
45-50 DAYS, AT WHICH TIME THE POSITION WAS PERMANENTLY FILLED. /5/ MR.
JOHNSON'S VERSION OF THIS MEETING, ALTHOUGH VERY SIMILAR TO MR. CAPPS,
DIFFERS WITH RESPECT TO SOME ASPECTS. WHERE THERE IS CONFLICT, I CREDIT
MR. CAPPS VERSION BASED UPON MY OBSERVATION OF DEMEANOR OF THE
WITNESSES, AND BECAUSE MR. JOHNSON'S TESTIMONY WAS CONFUSED,
CONTRADICTORY AND EVASIVE AND FURTHER BECAUSE MR. CAPPS WAS CORROBORATED
ON CERTAIN IMPORTANT ISSUES BY OTHER WITNESSES.
AFTER MR. LASTER HAD BEEN DETAILED AS TEMPORARY SUPERVISOR, MR.
JOHNSON AND MR. GILBERT WENT TO SEE MR. REESE CONCERNING, NOT THE DETAIL
BUT RATHER, THE EVALUATIONS OF MR. JOHNSON AND OTHER EMPLOYEES. ALSO
PRESENT DURING PART OF CONVERSATION WAS MR. VICTOR WILSON. /6/ MR.
JOHNSON TESTIFIED TO THE EFFECT THAT DURING THE CONVERSATION ABOUT
EVALUATIONS, IN ORDER "TO SEE IF HE WOULD TELL ME THE TRUTH," HE ASKED
MR. REESE IF HE (JOHNSON) COULD SERVE AS A SUPERVISOR AND MR. REESE
REPLIED THAT IT WOULD BE A "CONFLICT OF INTEREST." MR. JOHNSON ALLEGES
THAT HE ASKED FURTHER "EVEN IF I RESIGN MY POSITION AS UNION STEWARD?,"
TO WHICH MR. REESE ALLEGEDLY REPLIED "I STILL SAY IT'S A CONFLICT OF
INTEREST. . ." THIS MEETING LASTED APPROXIMATELY 30 MINUTES. MR.
JOHNSON TESTIFIED THAT HE LEFT WITH MR. GILBERT. ALTHOUGH MR. GILBERT
CORROBORATED MR. JOHNSON'S VERSION IN MANY MATERIAL RESPECTS, HE
TESTIFIED THAT HE WAS RUSHED BECAUSE HE HAD ANOTHER MEETING; THAT THIS
SUBJECT WAS NOT THE MAIN TOPIC OF THE MEETING BUT WAS SOMETHING MR.
JOHNSON RAISED ON HIS OWN; THAT THE STATEMENTS OF MR. REESE AS
TESTIFIED TO BY MR. JOHNSON COINCIDED WITH MR. GILBERT'S OWN PERSONAL
OPINION; AND THAT HE (MR. GILBERT) LEFT MR. JOHNSON TALKING TO MR.
REESE IN MR. REESE'S OFFICE.
MR. REESE TESTIFIED THAT HE CANNOT RECALL ANY DISCUSSION CONCERNING
STEWARDS HOLDING SUPERVISORY POSITIONS UNTIL AFTER MR. GILBERT LEFT. HE
RECALLS, AFTER MR. GILBERT LEFT ADVISING MR. JOHNSON THAT IF HE WERE
CHOSEN A PERMANENT SUPERVISOR HE WOULD HAVE TO CHOOSE BETWEEN HIS SHOP
STEWARD POSITION AND THIS SUPERVISORY JOB. HE DOES NOT RECALL ADVISING
MR. JOHNSON THAT EVEN IF HE RESIGNED AS A UNION SHOP STEWARD IT WOULD
BE A CONFLICT OF INTEREST. MR. WILSON SUBSTANTIALLY CORROBORATED MR.
REESE'S VERSION OF THE CONVERSATION.
IT IS FOUND, BASED ON AN EVALUATION OF ALL THE EVIDENCE, THAT,
ALTHOUGH THE CONVERSATION MIGHT HAVE BEEN UNCLEAR BECAUSE THIS "CONFLICT
OF INTEREST" QUESTION WAS INTERPOSED BY MR. JOHNSON AND WAS ONLY A
PERIPHERAL MATTER, MR. REESE ADVISED MR. JOHNSON THAT HE COULD NOT SERVE
SIMULTANEOUSLY AS A SHOP STEWARD AND SUPERVISOR AND THAT MR. REESE DID
NOT STATE THAT EVEN IN THE EVENT MR. JOHNSON RESIGNED AS SHOP STEWARD,
MR. JOHNSON WOULD STILL NOT BE PERMITTED TO ACT AS SUPERVISOR. THE
EVIDENCE FURTHER ESTABLISHES THAT SHOP STEWARDS HAD SERVED AS TEMPORARY
SUPERVISORS BUT HAD DESIGNATED OTHERS TO PERFORM THEIR SHOP STEWARD
DUTIES WHILE THEY SERVED AS SUPERVISORS.
THE UNION CONTENDS THAT THE ACTIVITY VIOLATED SECTIONS 19(A)(1) AND
(2) OF THE ORDER BY DENYING MR. JOHNSON THE OPPORTUNITY TO ACT OR BE
DETAILED AS A SUPERVISOR EITHER DURING SUPERVISOR STOKES' TEMPORARY
ABSENCES OR AFTER HIS RETIREMENT BECAUSE MR. JOHNSON WAS A UNION SHOP
STEWARD. THE ACTIVITY CONTENDS THAT MR. JOHNSON WAS OFFERED THE
OPPORTUNITY TO BE DETAILED AS A SUPERVISOR, PROVIDED, HOWEVER, THAT MR.
JOHNSON COULD NOT SERVE AS A SUPERVISOR WHILE AT THE SAME TIME
PERFORMING HIS DUTIES AS A SHOP STEWARD. HE WOULD HAVE TO RESIGN HIS
POSITION AS SHOP STEWARD FOR THE PERIOD OF TIME HE SERVED AS A
SUPERVISOR.
EXCEPT FOR A GENERAL STATEMENT BY MR. STOKES THAT MR. JOHNSON HAD NOT
BEEN APPOINTED TO ACT AS A SUPERVISOR DURING MR. STOKES TEMPORARY
ABSENCES; THERE WAS NO EVIDENCE SUBMITTED AS TO PRECISELY WHEN SUCH
OPPORTUNITIES BECAME AVAILABLE AND WHETHER IT WOULD HAVE BEEN MR.
JOHNSON'S TURN. THEREFORE THIS RECORD DOES NOT ESTABLISH THAT MR.
JOHNSON HAD BEEN UNLAWFULLY DENIED SUCH OPPORTUNITIES BECAUSE OF HIS
POSITION AS UNION SHOP STEWARD DURING THAT PERIOD OF TIME PRIOR TO THE
FILING OF THE SUBJECT UNFAIR LABOR PRACTICE COMPLAINT CHARGE THAT WOULD
PERMIT SUCH INSTANCES TO BE CONSIDERED UNDER THE ORDER.
THE CREDITED EVIDENCES ESTABLISHES THAT THE ACTIVITY HAD A RULE OR
PRACTICE THAT A UNION SHOP STEWARD COULD BE DETAILED OR ACT AS A
SUPERVISOR, BUT THAT SUCH A PERSON COULD NOT HOLD BOTH POSITIONS
SIMULTANEOUSLY AND WOULD HAVE TO RESIGN THE POSITION AS SHOP STEWARD FOR
THE PERIOD HE SERVED AS SUPERVISOR. THE CREDITED EVIDENCE FURTHER
ESTABLISHES THAT ALTHOUGH SOME OF THE CONVERSATIONS BETWEEN MR. JOHNSON
AND HIS SUPERVISORS MIGHT HAVE BEEN LESS THAN CRYSTAL CLEAR, MR. JOHNSON
WAS WELL AWARE OF THIS RULE AND REQUIREMENT. /7/
THE ACTIVITY WENT DOWN THE LIST OF JOURNEYMEN ALPHABETICALLY TO
DETAIL EMPLOYEES TO ACT AS SUPERVISORS AFTER MR. STOKES RETIREMENT.
AFTER MR. LEVI ARNOLD SERVED THE FIRST SUCH DETAIL, THE ACTIVITY OFFERED
THE POSITION TO MR. JOHNSON AND MR. LASTER ON THE SAME TERMS. MR.
JOHNSON CONTENDS HE WAS ONLY OFFERED A TWO-WEEK DETAIL BECAUSE HE WAS
SHOP STEWARD, /8/ BUT THE RECORD ESTABLISHES HE WAS OFFERED THE DETAIL
UNTIL THE JOB WAS FILLED WHICH COULD BE A PERIOD FROM TWO WEEKS TO TWO
MONTHS, AND THE SAME TERMS WERE APPLIED TO MR. LASTER, WHO WAS NOT A
SHOP STEWARD. MR. JOHNSON, WHO HAD NEVER PREVIOUSLY STATED WHETHER HE
WOULD RESIGN HIS STEWARD POSITION FOR THE PERIOD TO SERVE AS A
SUPERVISOR, /9/ DECIDED HE DID NOT WANT TO GIVE UP HIS SHOP STEWARD
DUTIES TO SERVE AS A SUPERVISOR. MR. LASTER TOOK THE JOB. THE RECORD
FAILS TO ESTABLISH THAT MR. JOHNSON WAS OFFERED LESS OF AN OPPORTUNITY
TO SERVE AS A SUPERVISOR THAN ANY OTHER JOURNEYMAN. RATHER THE SINGLE
QUESTION PRESENTED IS WHETHER THE RULE THAT REQUIRES THAT A SHOP STEWARD
RESIGN HIS POSITION AS SHOP STEWARD WHILE HE SERVES AS A SUPERVISOR,
VIOLATES SECTION 19(A)(1) AND (2) OF THE ORDER.
IN THE SUBJECT SITUATION THE PARTIES HAVE STIPULATED THAT THE
POSITION FORMERLY HELD BY MR. STOKES IS A SUPERVISORY POSITION WITHIN
THE MEANING OF THE ORDER. FURTHER THE RECORD ESTABLISHES THAT SUCH A
SUPERVISOR DEALS WITH THE UNION SHOP STEWARDS. IN FACT, SUPERVISOR
STOKES TESTIFIED THAT HE WOULD DEAL IN SUCH SITUATIONS WITH MR. JOHNSON,
THE BRANCH UNION SHOP STEWARD. IN SUCH CIRCUMSTANCES TO ALLOW A PERSON
TO ACT AS BOTH A UNION SHOP STEWARD AND A SUPERVISOR WOULD IN FACT
CREATE A "CONFLICT OF INTEREST" AND PUT THE PERSON IN A POSITION WHERE
HE COULD NOT PERFORM EITHER OF HIS RESPONSIBILITIES PROPERLY. /10/ THE
RECORD FURTHER ESTABLISHES THAT AN ACTING OR DETAILED SUPERVISOR
PERFORMS ALL THE DUTIES AND HAS ALL THE RESPONSIBILITIES OF A REGULAR
SUPERVISOR. THEREFORE, TO REQUIRE A PERSON ACTING OR DETAILED AS A
SUPERVISOR TO GIVE UP HIS SHOP STEWARD DUTIES WHILE PERFORMING HIS
SUPERVISORY DUTIES IS CLEARLY NOT UNREASONABLE AND DOES NOT EITHER
INTERFER WITH AN EMPLOYEES RIGHTS AS PROSCRIBED BY SECTIONS 19(A)(1) AND
(2) OF THE ORDER.
IT IS CONCLUDED BASED ON THE FOREGOING THAT RESPONDENT ACTIVITY'S
RULE THAT A UNION SHOP STEWARD MUST RESIGN HIS SHOP STEWARD POSITION FOR
THE PERIOD OF TIME HE SERVES AS A SUPERVISOR DOES NOT CONSTITUTE A
VIOLATION OF SECTION 19(A)(1) AND (2) 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: JANUARY 11, 1974
WASHINGTON, D.C.
/1/ THIS REQUEST APPARENTLY RELATED TO PERIODS OF TIME THAT MR.
STOKES WOULD BE TEMPORARILY ON LEAVE, NOT FOR THE PERIOD AFTER MR.
STOKES RETIREMENT.
/2/ MR. JOHNSON'S VERSION WAS THAT AFTER HEARING THAT ALL EMPLOYEES
HAD BEEN ASKED IF THEY WANTED TO ACT AS SUPERVISOR, EXCEPT HIMSELF, HE
ASKED MR. STOKES WHY HE HAD NOT BEEN ASKED. MR. JOHNSON STATES THAT MR.
STOKES TOLD HIM, AFTER CHECKING, THAT HE COULD NOT SERVE BECAUSE HE WAS
A SHOP STEWARD. MR. STOKES' VERSION IS CREDITED RATHER THAN MR.
JOHNSON'S BECAUSE IT IS MORE CONSISTENT WITH THE OTHER FACTS AND
CIRCUMSTANCES OF THIS CASE.
/3/ AN EMPLOYEE UTILIZATION SPECIALIST FOR THE ATTORNEY.
/4/ SIMILARLY PRIOR TO AUGUST 21, 1972, MR. BARNIE GILBERT, THE CHIEF
DIVISION SHOP STEWARD, AND MR. BROOKS, THE UNION PRESIDENT, ADVISED MR.
JOHNSON THAT HE COULD ACT AS SUPERVISOR BUT HE WOULD HAVE TO GIVE UP HIS
SHOP STEWARD POSITION FOR THE PERIOD OF TIME HE SERVED AS A SUPERVISOR.
/5/ MR. LEVI ARNOLD WAS GIVEN THE JOB.
/6/ A PERSONNEL STAFFING SPECIALIST FOR THE ACTIVITY
/7/ ALTHOUGH MR. JOHNSON EXPRESSED SOME CONFUSION AS TO WHETHER HE
WAS SPECIFICALLY TOLD THAT HE NEED RELINQUISH HIS SHOP STEWARD DUTIES
ONLY FOR THE PERIOD HE SERVED AS SUPERVISOR, THE RECORD ESTABLISHES THAT
MR. JOHNSON WAS IN FACT AWARE OF THIS, THE ACTIVITY DID NOT ADVISE HIM
TO THE CONTRARY, AND THE RECORD DOES NOT ESTABLISH ANY INSTANCE OF THE
ACTIVITY SETTING ANY REQUIREMENTS AS TO WHO CAN SERVE AS SHOP STEWARD,
EXCEPT TO THE EXTENT THAT THE ACTIVITY DID NOT PERMIT A SUPERVISOR TO
PERFORM SHOP STEWARD DUTIES WHILE A SUPERVISOR. WHETHER HE CHOSE TO
GIVE UP HIS SHOP STEWARD POSITION PERMANENTLY OR TEMPORARILY WAS A
MATTER BETWEEN MR. JOHNSON AND THE UNION. /8/ A POSITION WHICH
CONTRADICTS MR. JOHNSON'S ALLEGATION THAT THE ACTIVITY WOULD NOT OFFER
HIM THE DETAIL BECAUSE HE WAS A SHOP STEWARD.
/9/ A MATTER CONCERNING WHICH MR. STOKES HAD INQUIRED ABOUT, BUT
WHICH MR. JOHNSON HAD NOT YET DECIDED.
/10/ WITHOUT DECIDING IT IN THIS CASE, IT SHOULD BE NOTED THAT TO
PERMIT SUCH A SITUATION TO EXIST MIGHT ITSELF CONSTITUTE A VIOLATION OF
THE ORDER.
4 A/SLMR 365; P. 190; CASE NO. 40-4715(CA); MARCH 14, 1974.
JOSE Q. RODRIGUEZ. 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:
IN CASE NO. 64-4374 (RA) THE ACTIVITY FILED AN RA PETITION SEEKING AN
ELECTION IN A UNIT CONSISTING OF ALL OF ITS FULL-TIME PERMANENT
CLASSIFICATION ACT AND WAGE GRADE EMPLOYEES, EXCLUDING
CLERK-STENOGRAPHERS, SECRETARY TO THE AIRWAYS FACILITY SECTOR MANAGER,
PROFESSIONAL EMPLOYEES, ADMINISTRATIVE OFFICERS, MANAGEMENT OFFICIALS,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, GUARDS AND SUPERVISORS AS DEFINED IN THE ORDER. THE
FOREGOING UNIT DESCRIBES CERTAIN OF THE ACTIVITY'S EMPLOYEES WHO
CURRENTLY ARE REPRESENTED ON AN EXCLUSIVE BASIS BY THE INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 2266,
AFFILIATED WITH THE AFL-CIO, HEREIN CALLED IAM, AS WELL AS CERTAIN OTHER
EMPLOYEES WHO WERE PLACED UNDER THE ACTIVITY'S JURISDICTION AS A RESULT
OF A REORGANIZATION OF THE SOUTHWEST REGION OF THE FEDERAL AVIATION
ADMINISTRATION (FAA) WHICH OCCURRED AFTER THE IAM ACHIEVED ITS EXCLUSIVE
REPRESENTATIVE STATUS. THE ACTIVITY CONTENDS THAT THE REORGANIZATION
RENDERED THE EXISTING UNIT REPRESENTED BY THE IAM INAPPROPRIATE AND THAT
THE ONLY APPROPRIATE UNIT IS A UNIT WHICH WOULD CONSIST OF ALL OF ITS
ELIGIBLE EMPLOYEES, INCLUDING THOSE PLACED UNDER ITS JURISDICTION AS A
RESULT OF THE REORGANIZATION. IN THIS REGARD, IT ASSERTS THAT THE
COMMUNITY OF INTEREST AMONG ITS EMPLOYEES IS ON AN ACTIVITY-WIDE BASIS
AND THAT A UNIT OF A LESSER SCOPE, SUCH AS THAT REPRESENTED BY THE IAM,
WOULD FAIL TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
IN CASE NO. 63-4529 (CU), THE ACTIVITY FILED A PETITION FOR
CLARIFICATION OF UNIT (CU) SEEKING TO CLARIFY THE EXISTING UNIT
REPRESENTED BY THE IAM BY CHANGING THE INCLUSIONS IN THE EXISTING UNIT
DESCRIPTION FROM "ALL NONSUPERVISORY ELECTRONIC TECHNICIANS, GS-11 AND
BELOW AND ALL ELECTRO-MECHANICAL TECHNICIANS" TO ALL NONSUPERVISORY
CLASSIFICATION ACT AND WAGE GRADE EMPLOYEES. THE ACTIVITY CONTENDS THAT
THE PROPOSED CHANGE IS DESIGNED MERELY TO REFLECT THE CHANGE IN THE
JOURNEYMAN GRADE LEVEL OF THE UNIT EMPLOYEES FROM GS-11 TO GS-12. /1/
THE IAM AGREED WITH THE ACTIVITY'S POSITION CONCERNING THE PROPOSED
CHANGE IN THE UNIT DESCRIPTION.
THE FAA, WHICH IS ENGAGED IN PROVIDING FOR THE SAFE AND EXPEDITIOUS
FLOW OF AIR TRAFFIC, IS DIVIDED INTO SOME 13 GEOGRAPHIC REGIONS,
INCLUDING THE SOUTHWEST REGION INVOLVED HEREIN. THE SOUTHWEST REGION IS
DIVIDED INTO FOUR OPERATING DIVISIONS INCLUDING THE AIRWAY FACILITIES
DIVISION WHICH, IN TURN, IS DIVIDED INTO SECTORS RESPONSIBLE FOR THE
MAINTENANCE OF NAVIGATIONAL AIDS IN A SPECIFIC GEOGRAPHIC AREA. THE
TULSA AIRWAY FACILITIES SECTOR, THE ACTIVITY HEREIN, IS ONE OF SOME 19
SECTORS IN THE SOUTHWEST REGION AND HAS JURISDICTION OVER CERTAIN AREAS
OF THE STATES OF ARKANSAS AND OKLAHOMA. IT IS HEADQUARTERED AT TULSA,
OKLAHOMA, AND CURRENTLY IS RESPONSIBLE FOR FOUR FIELD OFFICES.
THE BARGAINING HISTORY REVEALS THAT ON OCTOBER 12, 1966, THE ACTIVITY
GRANTED THE IAM RECOGNITION AS THE EXCLUSIVE REPRESENTATIVE OF ALL OF
ITS ELIGIBLE TECHNICAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES. AN
INITIAL NEGOTIATED AGREEMENT WAS EXECUTED ON APRIL 7, 1967, AND,
THEREAFTER, THE PARTIES CONTINUED THEIR CONTRACTUAL RELATIONSHIP UNTIL
THEIR MOST RECENT AGREEMENT EXPIRED ON OR ABOUT JUNE 21, 1973. AT THE
TIME THE IAM OBTAINED EXCLUSIVE RECOGNITION, THE ACTIVITY'S OPERATIONS
CONSISTED OF ITS HEADQUARTERS AT TULSA, OKLAHOMA, AND TWO FIELD OFFICES
LOCATED AT BARTLESVILLE AND PONCA CITY, OKLAHOMA. IN SEPTEMBER 1971,
THE SOUTHWEST REGION REORGANIZED ITS AIRWAY FACILITIES DIVISION BY
ABOLISHING CERTAIN SECTORS AND INCREASING THE SIZE OF OTHERS. IN THIS
CONNECTION, IT ABOLISHED THE FORT SMITH, ARKANSAS, SECTOR AND ASSIGNED
ITS OFFICES, LOCATED AT FAYETTEVILLE AND FORT SMITH, ARKANSAS, AND
MCALESTER, OKLAHOMA, TO THE ACTIVITY. THE ASSIGNMENT OF THESE OFFICES
TO THE ACTIVITY RESULTED IN AN INCREASE IN THE NUMBER OF THE LATTER'S
RANK AND FILE TECHNICAL EMPLOYEES FROM APPROXIMATELY 31 TO APPROXIMATELY
45. /2/
THE RECORD REVEALS THAT ALL OF THE ACTIVITY'S EMPLOYEES, INCLUDING
THOSE ADDED TO ITS JURISDICTION AS A RESULT OF THE REORGANIZATION,
REMAIN IN ESSENTIALLY THE SAME PHYSICAL LOCATIONS AND PERFORM THE SAME
JOB FUNCTIONS AS PRIOR TO THE REORGANIZATION, AND THAT THERE HAS BEEN NO
CHANGE IN THEIR WORKING CONDITIONS. ALSO, WHILE ALL OF THE ACTIVITY'S
EMPLOYEES ARE UNDER THE OVERALL DIRECTION OF ITS SECTOR MANAGER, WHO HAS
THE AUTHORITY AND RESPONSIBILITY FOR PERSONNEL ACTIONS WHICH RELATE TO
REMOVALS, REASSIGNMENTS, PROMOTIONS, AWARDS, DEMOTIONS AND DISCIPLINARY
MATTERS, /3/ THE IMMEDIATE SUPERVISION OF THE EMPLOYEES REMAINS THE SAME
AS BEFORE THE REORGANIZATION. IN ADDITION, WHILE THE EMPLOYEES
REPRESENTED BY THE IAM AND THOSE ADDED TO THE ACTIVITY'S JURISDICTION AS
A RESULT OF THE REORGANIZATION, SHARE COMMON SKILLS, HAVE COMPARABLE
WORKING CONDITIONS AND TRAINING, AND PERFORM ESSENTIALLY THE SAME
DUTIES, THE RECORD REVEALS THAT THERE IS LITTLE OR NO INTERCHANGE
BETWEEN THESE TWO GROUPS OF EMPLOYEES AND THAT THEY HAVE FEW JOB RELATED
CONTACTS.
BASED ON ALL OF THE FOREGOING, I FIND THAT THE EMPLOYEES IN THE
EXISTING UNIT REPRESENTED BY THE IAM CONTINUE AFTER THE REORGANIZATION
TO SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST. THUS, AS NOTED
ABOVE, THE EMPLOYEES REPRESENTED BY THE IAM WORK IN ESSENTIALLY THE SAME
LOCATIONS, UNDER THE SAME SUPERVISION AND WORKING CONDITIONS, AND
PERFORM THE SAME DUTIES AS PRIOR TO THE REORGANIZATION. ALSO, THE UNIT
EMPLOYEES HAVE LITTLE OR NO WORK RELATED CONTACTS WITH THOSE EMPLOYEES
PLACED UNDER THE ACTIVITY'S JURISDICTION AS A RESULT OF THE
REORGANIZATION. THE EVIDENCE FURTHER ESTABLISHES THAT THE UNIT
REPRESENTED BY THE IAM HAS EXPERIENCED STABLE AND EFFECTIVE
LABOR-MANAGEMENT RELATIONS AS EVIDENCED BY SEVERAL NEGOTIATED AGREEMENTS
BETWEEN THE ACTIVITY AND THE IAM. /4/ UNDER THESE CIRCUMSTANCES, I FIND
THAT THE UNIT REPRESENTED BY THE IAM CONTINUES TO BE APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION. ACCORDINGLY, I SHALL ORDER THAT THE
SUBJECT RA PETITION BE DISMISSED. /5/
WITH RESPECT TO THE INSTANT CU PETITION, BASED ON THE PARTIES'
STIPULATION, AS SUPPORTED BY THE EVIDENCE, THAT THE PROMOTION OF THE
EMPLOYEES IN QUESTION DID NOT INVOLVE A CHANGE IN THEIR DUTIES, WORKING
CONDITIONS, OR ANY OF THE PERSONNEL POLICIES UNDER WHICH THEY WORK, I
FIND THAT THE EXCLUSIVELY RECOGNIZED UNIT SHOULD BE CLARIFIED, AS
REQUESTED, TO INCLUDE ALL OF THE ACTIVITY'S NONSUPERVISORY ELECTRONIC
AND ELECTRO-MECHANICAL TECHNICIANS ASSIGNED TO TULSA, PONCA CITY, AND
BARTLESVILLE, OKLAHOMA.
IT IS HEREBY ORDERED THAT THE UNIT SOUGHT TO BE CLARIFIED HEREIN, FOR
WHICH THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
LOCAL LODGE 2266, AFFILIATED WITH AFL-CIO, RECEIVED RECOGNITION AS
EXCLUSIVE BARGAINING REPRESENTATIVE ON OCTOBER 12, 1966, UNDER EXECUTIVE
ORDER 10988 BE, AND HEREIN IS, CLARIFIED TO INCLUDE ALL NONSUPERVISORY
ELECTRONIC AND ELECTRO-MECHANICAL TECHNICIANS ASSIGNED TO THE ACTIVITY'S
FACILITIES AT TULSA, PONCA CITY, AND BARTLESVILLE, OKLAHOMA.
IT IS FURTHER ORDERED THAT THE PETITION IN CASE NO. 63-4374(RA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 14, 1974
/1/ THE EVIDENCE ESTABLISHED THAT THE CHANGE IN THE JOURNEYMAN GRADE
OF THE UNIT EMPLOYEES DID NOT AFFECT THE DUTIES, RESPONSIBILITIES, OR
WORKING CONDITIONS OF SUCH EMPLOYEES.
/2/ PRIOR TO THE REORGANIZATION, THE EMPLOYEES ASSIGNED TO THE FORT
SMITH SECTOR WERE REPRESENTED BY THE NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES. SINCE THE REORGANIZATION, THE EVIDENCE ESTABLISHES THAT NO
LABOR ORGANIZATION HAS EXPRESSED AN INTEREST IN REPRESENTING SUCH
EMPLOYEES.
/3/ THE SECTOR MANAGER ALSO IS RESPONSIBLE FOR NEGOTIATING AND
ADMINISTERING ALL NEGOTIATED AGREEMENTS APPLICABLE TO THE ACTIVITY'S
EMPLOYEES.
/4/ NOTING THE ESTABLISHED BARGAINING HISTORY WITH RESPECT TO THE
UNIT REPRESENTED BY THE IAM, THE FACT, STANDING ALONE, THAT AN
ADDITIONAL UNIT OR UNITS SUBSEQUENTLY MAY BE ESTABLISHED TO COVER THOSE
EMPLOYEES ADDED TO THE ACTIVITY'S JURISDICTION AS A RESULT OF THE
REORGANIZATION WAS NOT CONSIDERED TO REQUIRE A FINDING THAT THE UNIT
REPRESENTED BY THE IAM NECESSARILY WILL FAIL TO PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
/5/ CF. HEADQUARTERS, U.S. ARMY AVIATION SYSTEMS COMMAND, ST., LOUIS,
MISSOURI, A/SLMR NO. 160.
4 A/SLMR 364; P. 188; CASE NOS. 63-4374(RA) AND 63-4529(CU); MARCH
14, 1974.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY
FACILITIES SECTOR
A/SLMR NO. 364
THE SUBJECT CASE INVOLVED AN RA PETITION FILED BY THE ACTIVITY
SEEKING AN ELECTION AMONG ALL OF ITS ELIGIBLE ELECTRONIC AND
ELECTRO-MECHANICAL TECHNICIANS, INCLUDING THOSE CURRENTLY REPRESENTED ON
AN EXCLUSIVE BASIS BY THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, LOCAL LODGE 2266, AFL-CIO (IAM). THE ACTIVITY
ASSERTED, IN THIS REGARD, THAT A RECENT REORGANIZATION OF ITS OPERATIONS
HAS RENDERED THE IAM UNIT INAPPROPRIATE AND THAT THE ONLY APPROPRIATE
UNIT IS ONE WHICH WOULD INCLUDE ALL OF ITS ELIGIBLE TECHNICIANS
INCLUDING THE UNREPRESENTED TECHNICIANS ADDED TO ITS JURISDICTION AS A
RESULT OF THE REORGANIZATION. ALSO INVOLVED IN THIS MATTER WAS A
PETITION FOR CLARIFICATION OF UNIT FILED BY THE ACTIVITY SEEKING TO
CLARIFY THE STATUS OF CERTAIN TECHNICIANS WHO RECENTLY WERE PROMOTED TO
THE GS-12 LEVEL. THE IAM CLAIMED THAT ITS UNIT REMAINED INTACT AFTER
THE REORGANIZATION AND, CONSEQUENTLY, THAT IT CONTINUED TO BE
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. BOTH PARTIES
AGREED THAT THE UNIT SHOULD BE CLARIFIED TO INCLUDE NONSUPERVISORY GS-12
TECHNICIANS.
FINDING THAT THE UNIT PREVIOUSLY REPRESENTED BY THE IAM CONTINUES TO
BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION FOLLOWING THE
REORGANIZATION, THE ASSISTANT SECRETARY DISMISSED THE RA PETITION. IN
THIS REGARD, HE NOTED THAT THE EMPLOYEES REPRESENTED BY THE IAM WORK IN
ESSENTIALLY THE SAME LOCATIONS, UNDER THE SAME SUPERVISION AND WORKING
CONDITIONS, AND PERFORM THE SAME DUTIES AS PRIOR TO THE REORGANIZATION;
PLACED UNDER THE ACTIVITY'S JURISDICTION AS A RESULT OF THE
REORGANIZATION; AND THAT STABLE AND EFFECTIVE LABOR-MANAGEMENT
RELATIONS HAVE BEEN EXPERIENCED IN THE UNIT AS EVIDENCED BY SEVERAL
NEGOTIATED AGREEMENTS BETWEEN THE IAM AND THE ACTIVITY.
WITH RESPECT TO THE CU PETITION, THE ASSISTANT SECRETARY FOUND, BASED
ON THE PARTIES' STIPULATION, AS SUPPORTED BY THE EVIDENCE, THAT THE
PROMOTION OF THE EMPLOYEES IN QUESTION DID NOT INVOLVE A CHANGE IN THEIR
DUTIES, WORKING CONDITIONS, OR ANY OF THE PERSONNEL POLICIES UNDER WHICH
THEY WORK. ACCORDINGLY, AS REQUESTED, THE ASSISTANT SECRETARY ISSUED AN
ORDER CLARIFYING THE UNIT TO INCLUDE ALL OF THE ACTIVITY'S ELECTRONIC
AND ELECTRO-MECHANICAL TECHNICIANS ASSIGNED TO THE FACILITIES INVOLVED.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, TULSA AIRWAY
FACILITIES SECTOR
AND
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, LOCAL LODGE 2266,
AFFILIATED WITH AFL-CIO
UPON PETITIONS DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
4 A/SLMR 363; P. 185; CASE NO. 72-3872; MARCH 8, 1974.
U.S. DEPARTMENT OF INTERIOR,
BUREAU OF INDIAN AFFAIRS,
FORT APACHE AGENCY,
PHOENIX, ARIZONA
A/SLMR NO. 363
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
NATIONAL COUNCIL OF BUREAU OF INDIAN AFFAIRS EDUCATORS/NATIONAL
EDUCATION ASSOCIATION (NCBIAE) SEEKING A UNIT OF ALL NONSUPERVISORY
PROFESSIONAL EDUCATIONAL EMPLOYEES (1710 SERIES) OF THE FORT APACHE
AGENCY. THE RECORD REVEALED THAT THE EMPLOYEES IN THE CLAIMED UNIT WERE
ALREADY INCLUDED IN A UNIT OF ALL NONSUPERVISORY EMPLOYEES OF THE
ACTIVITY EXCLUSIVELY REPRESENTED BY THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 267 (NFFE). THE NFFE TOOK THE POSITION THAT THE
PETITIONED FOR UNIT WAS INAPPROPRIATE, THAT ITS CURRENTLY RECOGNIZED
UNIT PROMOTED EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS,
AND THAT THE "UNUSUAL CIRCUMSTANCES" REQUIRED TO WARRANT A "CARVE OUT"
WERE NOT PRESENT IN THE INSTANT CASE. THE ACTIVITY DID NOT TAKE A
POSITION REGARDING THE APPROPRIATENESS OF THE CLAIMED UNIT.
APPLYING THE PRINCIPLES ENUNCIATED IN UNITED STATES NAVAL
CONSTRUCTION BATTALION CENTER, A/SLMR NO. 8, THE ASSISTANT SECRETARY
FOUND THAT THE PETITIONED FOR UNIT WAS NOT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION. IN THIS REGARD, THE ASSISTANT SECRETARY NOTED
THAT THE EVIDENCE DID NOT ESTABLISH THAT THE NFFE HAD FAILED OR REFUSED
TO RENDER FAIR AND EFFECTIVE REPRESENTATION TO ANY UNIT EMPLOYEES,
INCLUDING THOSE IN THE UNIT SOUGHT. RATHER, IN THE ASSISTANT
SECRETARY'S VIEW, THE RECORD DISCLOSED THAT A HARMONIOUS BARGAINING
RELATIONSHIP HAD BEEN MAINTAINED FOR SEVERAL YEARS BETWEEN THE ACTIVITY
AND THE NFFE WITH RESPECT TO ALL UNIT EMPLOYEES, INCLUDING THOSE IN THE
PETITIONED FOR UNIT. ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT
THE PETITION BE DISMISSED.
U.S. DEPARTMENT OF INTERIOR,
BUREAU OF INDIAN AFFAIRS,
FORT APACHE AGENCY,
PHOENIX, ARIZONA
AND
NATIONAL COUNCIL OF BUREAU OF INDIAN
AFFAIRS EDUCATORS/NATIONAL EDUCATION
ASSOCIATION
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, IND., LOCAL 267
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER LINDA WITTLIN.
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 BRIEFS FILED BY THE
NATIONAL COUNCIL OF BUREAU OF INDIAN AFFAIRS EDUCATORS/NATIONAL
EDUCATION ASSOCIATION, HEREINAFTER CALLED NCBIAE, AND THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, IND., LOCAL 267, HEREINAFTER CALLED
NFFE, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE NCBIAE SEEKS AN ELECTION IN THE FOLLOWING UNIT:
ALL PROFESSIONAL EDUCATIONAL EMPLOYEES (1710 SERIES) OF THE FORT
APACHE AGENCY, EXCLUDING MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY, AND
GUARDS AND SUPERVISORS AS DEFINED IN EXECUTIVE ORDER 11491, AS AMENDED.
THE RECORD REVEALS THAT THE EMPLOYEES IN THE CLAIMED UNIT PRESENTLY
ARE INCLUDED IN A UNIT OF ALL NONSUPERVISORY EMPLOYEES OF THE FORT
APACHE AGENCY AND ARE REPRESENTED EXCLUSIVELY BY THE NFFE. THE NCBIAE
CONTENDS THAT THE EMPLOYEES SOUGHT HAVE NOT BEEN REPRESENTED ADEQUATELY
BY THE NFFE AND THAT, THEREFORE, A SEPARATE UNIT OF GS-1710 SERIES
EMPLOYEES IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. THE
NFFE, ON THE OTHER HAND, CONTENDS THAT THE PETITIONED FOR UNIT IS
INAPPROPRIATE, THAT THE EXISTING EXCLUSIVELY RECOGNIZED UNIT PROMOTES
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, AND THAT THE
"UNUSUAL CIRCUMSTANCES" REQUIRED TO WARRANT A "CARVE OUT" ARE NOT
PRESENT IN THE INSTANT CASE. /2/
THE ACTIVITY IS ONE OF 13 INSTALLATIONS OF THE PHOENIX AREA OFFICE OF
THE BUREAU OF INDIAN AFFAIRS LOCATED IN THE STATES OF ARIZONA AND
CALIFORNIA. /3/ APPROXIMATELY 117 PROFESSIONAL AND NONPROFESSIONAL
EMPLOYEES OF THE ACTIVITY ARE IN THE UNIT CURRENTLY REPRESENTED
EXCLUSIVELY BY THE NFFE. THE BRANCH OF EDUCATION OF THE ACTIVITY
INCLUDES ALL 31 OF THE PETITIONED FOR GS-1710 SERIES EMPLOYEES WHO ARE
EMPLOYED AT THE THEODORE ROOSEVELT BOARDING SCHOOL AND THE CIBECUE AND
JOHN F. KENNEDY DAY SCHOOLS. EACH OF THESE SCHOOLS IS HEADED BY A
PRINCIPAL WHO IS RESPONSIBLE FOR THE ENTIRE SCHOOL OPERATION.
THE NFFE WAS GRANTED EXCLUSIVE RECOGNITION ON MAY 3, 1967, BY THE
PHOENIX AREA OFFICE FOR THE UNIT AT THE FORT APACHE AGENCY. THE INITIAL
NEGOTIATED AGREEMENT ENTERED INTO BY NFFE AND THE ACTIVITY BECAME
EFFECTIVE ON DECEMBER 22, 1967. THE MOST RECENT AGREEMENT BETWEEN THE
PARTIES BECAME EFFECTIVE ON JULY 30, 1973. IT APPEARS THAT A GS-1710
SERIES UNIT EMPLOYEE WAS ON THE NEGOTIATING TEAM AND SIGNED THE PARTIES'
INITIAL AGREEMENT. THE RECORD ESTABLISHED THAT, AT PRESENT, THE NFFE
HAS A FIRST VICE PRESIDENT AND CHIEF STEWARD WHO ARE GS-1710 UNIT
EMPLOYEES. FURTHER, IT APPEARS THAT REGULAR NFFE MEETING DATES ARE
POSTED AT THE ACTIVITY AND THAT SUCH MEETINGS ARE CONDUCTED AND ARE
ATTENDED, ON OCCASION, BY EMPLOYEES IN THE PETITIONED FOR UNIT. THERE
IS NO EVIDENCE IN THE RECORD THAT THE NFFE HAS FAILED OR REFUSED TO
REPRESENT ANY UNIT EMPLOYEES, INCLUDING THOSE IN THE CLAIMED UNIT,
REGARDING GRIEVANCES OR ANY OTHER MATTERS AFFECTING THEIR TERMS AND
CONDITIONS OF EMPLOYMENT. INDEED, THE EVIDENCE ESTABLISHES THAT WHEN,
ON ONE OCCASION, A PERSONNEL PROBLEM INVOLVING AN EMPLOYEE IN THE
CLAIMED UNIT AROSE, THE PRESIDENT OF NFFE ACTED TO INITIATE AN
INVESTIGATION, WHICH WAS CONTINUED BY A NATIONAL REPRESENTATIVE OF THE
NFFE, AND, ACCORDING TO THE EMPLOYEE'S CHIEF STEWARD, THE MATTER
RESULTED IN AN ACTION BY THE AGENCY WHICH SATISFIED THE AGGRIEVED
EMPLOYEE.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE PETITIONED FOR UNIT
OF GS-1710 SERIES EMPLOYEES IS NOT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION. THUS, THE EVIDENCE DOES NOT ESTABLISH THAT THE
NFFE HAS FAILED TO REPRESENT SUCH EMPLOYEES IN A FAIR AND EFFECTIVE
MANNER. AS NOTED ABOVE, IN UNITED STATES NAVAL CONSTRUCTION BATTALION
CENTER, IT WAS HELD THAT, "WHERE THE EVIDENCE SHOWS THAT AN ESTABLISHED,
EFFECTIVE AND FAIR COLLECTIVE BARGAINING RELATIONSHIP IS IN EXISTENCE, A
SEPARATE UNIT CARVED OUT OF THE EXISTING UNIT WILL NOT BE FOUND
APPROPRIATE EXCEPT IN UNUSUAL CIRCUMSTANCES." I FIND NO SUCH "UNUSUAL
CIRCUMSTANCES" IN THE INSTANT CASE. RATHER, THE RECORD REVEALS THAT A
HARMONIOUS BARGAINING RELATIONSHIP HAS BEEN MAINTAINED FOR SEVERAL YEARS
BETWEEN THE ACTIVITY AND THE NFFE WITH RESPECT TO ALL UNIT EMPLOYEES,
INCLUDING THOSE IN THE PETITIONED FOR UNIT. BASED ON THESE
CONSIDERATIONS, I FIND THAT THE UNIT SOUGHT BY THE NCBIAE IS
INAPPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. THEREFORE, I
SHALL ORDER THAT THE SUBJECT PETITION BE DISMISSED. /4/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 72-3872 BE, AND IT
HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
MARCH 8, 1974
/1/ AT THE HEARING, THE HEARING OFFICER, OVER THE OBJECTIONS BY THE
INTERVENOR, ALLOWED THE PETITIONER'S REPRESENTATIVE TO INTRODUCE INTO
EVIDENCE A NUMBER OF HANDWRITTEN STATEMENTS BY TEACHERS. THESE EXHIBITS
WERE OFFERED THROUGH TWO TEACHERS WHO CLAIMED THAT THE STATEMENTS HAD
BEEN HANDED TO THEM PERSONALLY AND THAT THEY PERSONALLY KNEW THE
AUTHORS. BECAUSE THE AUTHORS OF THESE STATEMENTS WERE NOT SUBJECT TO
CROSS-EXAMINATION, PARTICULARLY WITH RESPECT TO THE GENERAL
CONCLUSIONARY LANGUAGE CONTAINED THEREIN, I CONSIDER SUCH STATEMENTS TO
HAVE LITTLE OR NO PROBATIVE VALUE. CF. U.S. DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, SCHENCK CIVILIAN CONSERVATION CENTER, NORTH CAROLINA,
A/SLMR NO. 116, AT FOOTNOTE 2.
/2/ CF. UNITED STATES NAVAL CONSTRUCTION BATTALION, A/SLMR NO. 8, IN
WHICH THE ASSISTANT SECRETARY STATED, IN PART, THAT, "WHERE THE EVIDENCE
SHOWS THAT AN ESTABLISHED, EFFECTIVE AND FAIR COLLECTIVE BARGAINING
RELATIONSHIP IS IN EXISTENCE, A SEPARATE UNIT CARVED OUT OF THE EXISTING
UNIT WILL NOT BE FOUND APPROPRIATE EXCEPT IN UNUSUAL CIRCUMSTANCES."
/3/ FORT APACHE, LOCATED AT WHITE RIVER, ARIZONA, IS ONE OF 10
AGENCIES. IN ADDITION TO THE AGENCIES ARE THREE INSTALLATIONS: THE SAN
CARLOS IRRIGATION PROJECT IN COOLIDGE, ARIZONA; THE PHOENIX INDIAN HIGH
SCHOOL IN PHOENIX, ARIZONA; AND THE SHERMAN INDIAN HIGH SCHOOL IN
RIVERSIDE, CALIFORNIA.
/4/ SEE DEPARTMENT OF THE NAVY, NAVAL AIR STATION, CORPUS CHRISTI,
TEXAS, A/SLMR NO. 150, AFFIRMED FLRC 72A-24. SEE ALSO VETERANS
ADMINISTRATION CENTER, TOGUS, MAINE, A/SLMR NO. 84, AFFIRMED FLRC NO.
71A-42, AND VETERANS ADMINISTRATION CENTER, MOUNTAIN HOME, TENNESSEE,
A/SLMR NO. 89, AFFIRMED FLRC NO. 71A-45. IN VIEW OF THE DISPOSITION
HEREIN, IT WAS CONSIDERED UNNECESSARY TO DECIDE THE ELIGIBILITY
QUESTIONS RAISED.
4 A/SLMR 362; P. 175; CASE NO. 63-4027(CA); FEBRUARY 28, 1974.
NEW MEXICO AIR NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS,
OFFICE OF THE ADJUTANT GENERAL,
SANTA FE, NEW MEXICO
A/SLMR NO. 362
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1636, ALBUQUERQUE, NEW
MEXICO (COMPLAINANT), AGAINST THE NEW MEXICO AIR NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS, OFFICE OF THE ADJUTANT GENERAL, SANTA
FE, NEW MEXICO (RESPONDENT). THE COMPLAINT ALLEGED THAT THE RESPONDENT
VIOLATED SECTION 19(A)(6) OF EXECUTIVE ORDER 11491 BY REFUSING TO
CONSULT, CONFER, OR NEGOTIATE WITH COMPLAINANT PRIOR TO THE ISSUANCE, ON
JUNE 20, 1972, OF A LETTER WHICH CALLED FOR STRICT ENFORCEMENT OF THE
STANDARDS FOR PERSONAL GROOMING.
THE ASSISTANT SECRETARY FOUND, CONTRARY TO THE ADMINISTRATIVE LAW
JUDGE, THAT THE RESPONDENT HAD VIOLATED SECTION 19(A)(6) OF THE ORDER.
ON JUNE 20, 1972, THE RESPONDENT'S BASE DETACHMENT COMMANDER SENT A
MEMORANDUM TO ALL OF THE CIVILIAN AIR TECHNICIAN EMPLOYEES STATING THAT
AN INSPECTION WOULD BE MADE ON JUNE 23, 1972, OF ALL WORKING AREAS, THAT
THE INSPECTION WOULD INCLUDE THE PERSONAL APPEARANCE OF TECHNICIANS, AND
THAT VIOLATIONS IN THE AREAS SPECIFIED WOULD BE REFLECTED IN A
TECHNICIAN'S PERFORMANCE REPORT, WHICH COULD LEAD TO A DENIAL OF A STEP
INCREASE, SUSPENSION, OR AFFECT FUTURE MILITARY PROMOTION. FOLLOWING
THE INSPECTION, SEVERAL TECHNICIANS WERE "WRITTEN-UP" FOR WEARING THEIR
HAIR LONGER THAN REGULATION LENGTH, ALTHOUGH, AS FOUND BY THE
ADMINISTRATIVE LAW JUDGE, THE RESPONDENT HAD, IN THE PAST, TOLERATED
SOME DEVIATION FROM THE HAIR GROOMING STANDARDS OFTEN ENOUGH TO GIVE THE
IMPRESSION TO THE TECHNICIANS THAT CONFORMITY WAS LARGELY A MATTER OF
PERSONAL CHOICE, AND THAT FAILURE TO CONFORM WOULD NOT AFFECT THEIR
EMPLOYMENT STATUS. THROUGHOUT, THE RESPONDENT MAINTAINED THAT IT WAS
PRIVILEGED TO ISSUE THE MEMORANDUM WITHOUT PRIOR CONSULTATION BECAUSE IT
CONTAINED MERELY A REITERATION OF EXISTING POLICY OR REGULATIONS;
HOWEVER, IT CONCEDED THAT SUCH MEMORANDUM DID REPRESENT A CHANGE IN THE
MANNER OF ENFORCEMENT WITH RESPECT TO UNIFORM REQUIREMENTS, INCLUDING
HAIR LENGTH.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE JUNE 20, 1972,
MEMORANDUM, IN EFFECT, ANNOUNCED A SHARP AND SIGNIFICANT SHIFT IN THE
MATTER OF ENFORCEMENT OF EXISTING GROOMING STANDARDS AND THAT, BUT FOR
THE TERMS OF THE PARTIES' NEGOTIATED AGREEMENT, SUCH CONDUCT WOULD
CONSTITUTE A VIOLATION OF SECTION 19(A)(6) OF THE ORDER. HE NOTED,
HOWEVER, THAT THE PARTIES' NEGOTIATED AGREEMENT PROVIDED FOR NEGOTIATION
OF A SUPPLEMENTAL AGREEMENT WITH RESPECT TO "WEARING OF THE UNIFORM" IF
THAT SUBJECT WERE DECLARED A NEGOTIABLE ITEM. IN THIS CONNECTION, THE
ADMINISTRATIVE LAW JUDGE CONCLUDED FROM A READING OF THE AIR FORCE
MANUAL (AFM) THAT PERSONAL GROOMING WAS AN INTEGRAL PART OF THE PHRASE
"WEARING OF THE UNIFORM," THAT THE PARTIES HAD, IN EFFECT, AGREED IN
THEIR NEGOTIATED AGREEMENT TO DEFER NEGOTIATION ON THE SUBJECT OF
GROOMING PENDING THE RESOLUTION OF ITS NEGOTIABILITY, AND THAT
COMPLAINANT HAD NOT REQUESTED SUCH RESOLUTION UNDER THE PROCEDURES SET
FORTH IN SECTION 11(C) OF THE ORDER, BUT RATHER, HAD CHOSEN THE
INAPPROPRIATE UNFAIR LABOR PRACTICE FORUM. THE ADMINISTRATIVE LAW JUDGE
THUS CONCLUDED THE ASSISTANT SECRETARY WAS WITHOUT AUTHORITY TO RESOLVE
THE ISSUE OF NEGOTIABILITY AND, ACCORDINGLY, HE RECOMMENDED DISMISSAL OF
THE COMPLAINT IN ITS ENTIRETY.
CONTRARY TO THE HOLDING OF THE ADMINISTRATIVE LAW JUDGE, THE
ASSISTANT SECRETARY CONCLUDED THAT THE PARTIES HAD NOT CLEARLY AND
UNEQUIVOCALLY EXCLUDED FROM BARGAINING THE SUBJECT OF PERSONAL GROOMING.
IN THIS CONNECTION, HE NOTED THAT NO PROVISION OF THE NEGOTIATED
AGREEMENT SPECIFICALLY ALLUDES TO PERSONAL GROOMING STANDARDS, NOR WAS
THERE ANY INDICATION IN THE AGREEMENT THAT THE PHRASE "WEARING OF THE
UNIFORM" WAS INTENDED TO ENCOMPASS GROOMING STANDARDS OR TO INCORPORATE
THE AFM REGULATION WHICH DEALS WITH SUCH STANDARDS. FURTHER, THERE WAS
NO EVIDENCE OF BARGAINING HISTORY TO SHOW THAT THE PARTIES HAD INTENDED
TO WAIVE BARGAINING ON THIS SUBJECT PENDING THE RESOLUTION OF ITS
NEGOTIABILITY.
WHILE FINDING THAT THE PARTIES BY CONTRACT DID NOT EXPRESSLY WAIVE AS
A NEGOTIABLE ITEM PERSONAL GROOMING STANDARDS, THE ASSISTANT SECRETARY
FOUND THAT SUCH SUBJECT WAS, NEVERTHELESS, NONNEGOTIABLE UNDER THE
CIRCUMSTANCES OF THIS CASE. IN THIS CONNECTION, THE ASSISTANT SECRETARY
NOTED THAT IN A CASE INVOLVING THE SAME PARTIES, NFFE LOCAL 1636 AND NEW
MEXICO NATIONAL GUARD, FLRC NO. 73A-13, THE FEDERAL LABOR RELATIONS
COUNCIL (COUNCIL) HELD PROPER THE DETERMINATION OF THE AGENCY HEAD THAT
A PROPOSAL CONCERNING THE WEARING OF THE UNIFORM WAS NONNEGOTIABLE UNDER
AGENCY REGULATIONS AND AS SUCH STANDARDS ARE AN INTEGRAL PART OF THE
STANDARDS OF WEARING OF THE UNIFORM, THE ASSISTANT SECRETARY FOUND, IN
ACCORDANCE WITH THE COUNCIL'S RATIONALE, THAT THE RESPONDENT WAS NOT
OBLIGATED TO MEET AND CONFER ON THE DECISION TO INSTITUTE A NEW POLICY
WITH RESPECT TO THE ENFORCEMENT OF PERSONAL GROOMING STANDARDS.
HOWEVER, THE ASSISTANT SECRETARY NOTED THAT IN PRIOR DECISIONS IT HAD
BEEN FOUND THAT NOTWITHSTANDING THAT A PARTICULAR SUBJECT MATTER IS
NONNEGOTIABLE, AGENCY OR ACTIVITY MANAGEMENT IS REQUIRED UNDER THE ORDER
TO MEET AND CONFER ON THE PROCEDURES MANAGEMENT INTENDS TO USE IN
IMPLEMENTING THE DECISION INVOLVED, AND ON THE IMPACT OF SUCH DECISION
ON ADVERSELY AFFECTED EMPLOYEES. IN THIS REGARD, THE ASSISTANT
SECRETARY FOUND THAT UNDER THE CIRCUMSTANCES HEREIN THE RESPONDENT'S
CONDUCT WAS VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER, BECAUSE IT IS
CLEAR THAT BY ITS ACTIONS IT DID NOT AFFORD THE COMPLAINANT A REASONABLE
OPPORTUNITY TO MEET AND CONFER TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS ON THE PROCEDURES TO BE UTILIZED IN EFFECTUATING THE
RESPONDENT'S NEW POLICY WITH RESPECT TO THE ENFORCEMENT OF GROOMING
STANDARDS, AND ON THE IMPACT OF SUCH POLICY ON ADVERSELY AFFECTED
EMPLOYEES.
NEW MEXICO AIR NATIONAL GUARD,
DEPARTMENT OF MILITARY AFFAIRS,
OFFICE OF THE ADJUTANT GENERAL,
SANTE FE, NEW MEXICO
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1636,
ALBUQUERQUE, NEW MEXICO
ON OCTOBER 12, 1973, ADMINISTRATIVE LAW JUDGE JOHN H. FENTON ISSUED
HIS REPORT AND RECOMMENDATIONS IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE NEW MEXICO AIR NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS,
OFFICE OF THE ADJUTANT GENERAL, SANTA FE, NEW MEXICO, HEREIN CALLED
RESPONDENT, HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED, AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1636,
ALBUQUERQUE, NEW MEXICO, HEREIN CALLED COMPLAINANT, 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 EXCEPTIONS FILED BY THE COMPLAINANT, I HEREBY ADOPT THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS,
ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT IN THE INSTANT CASE ALLEGED THAT RESPONDENT VIOLATED
19(A)(6) OF EXECUTIVE ORDER 11491 BY REFUSING TO CONSULT, CONFER, OR
NEGOTIATE WITH COMPLAINANT PRIOR TO THE ISSUANCE, ON JUNE 20, 1972, OF A
LETTER WHICH CALLED FOR STRICT ENFORCEMENT OF THE STANDARDS FOR PERSONAL
GROOMING.
THE ESSENTIAL FACTS IN THE CASE, WHICH ARE NOT IN DISPUTE, ARE SET
FORTH IN DETAIL IN THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATIONS, AND I SHALL REPEAT THEM ONLY TO THE EXTENT NECESSARY.
AT ALL TIMES MATERIAL THE COMPLAINANT HAS REPRESENTED EXCLUSIVELY THE
CIVILIAN AIR TECHNICIAN EMPLOYEES OF THE RESPONDENT, SUCH EMPLOYEES
BEING COVERED BY A NEGOTIATED AGREEMENT BETWEEN THE RESPONDENT AND THE
COMPLAINANT. ALTHOUGH TECHNICIANS ARE CIVIL SERVICE EMPLOYEES WHO WORK
A REGULAR WORKWEEK IN SUCH STATUS, THEY ARE REQUIRED AS A CONDITION OF
THEIR EMPLOYMENT TO BELONG TO THE NATIONAL GUARD. ARTICLE 11.5(A) OF
THE AGREEMENT PROVIDES FOR THE NEGOTIATION OF A SUPPLEMENTAL AGREEMENT
ON THE WEARING OF THE UNIFORM IF THAT SUBJECT IS DECLARED A NEGOTIABLE
ITEM. THERE IS NO RECORD EVIDENCE THAT EITHER PARTY EVER SOUGHT OR
SECURED SUCH A RULING UNDER THE FOREGOING AGREEMENT PROVISION. THE
EVIDENCE INDICATES THAT THE TECHNICIANS HAVE, FOR SOME PERIOD OF TIME,
BEEN DISSATISFIED WITH THE REQUIREMENT THAT THEY WEAR THE UNIFORM WHILE
IN CIVILIAN STATUS, AS WELL AS CONFORM THEIR HAIR STYLES TO REGULATION
REQUIREMENTS. IN THIS CONNECTION, THE AIR FORCE MANUAL (AFM) DEALS WITH
CONDITIONS OF DRESS AND DECORUM FOR EMPLOYEES IN THEIR TECHNICIAN
CAPACITY, SETTING FORTH THE APPLICABLE CRITERIA FOR WEARING OF THE
UNIFORM AND PERSONAL APPEARANCE, INCLUDING GROOMING. AFM 3510 ALSO
SPECIFIES HOW INFRACTIONS WILL BE HANDLED.
IN LATE FEBRUARY 1972, THE BASE DETACHMENT COMMANDER INFORMED THE
TECHNICIANS THAT THE MORE LENIENT GROOMING STYLE PERMITTED BY ARMY
STANDARDS, AS REFLECTED IN ARMY POSTERS, WOULD BE ADOPTED. THE
ADMINISTRATIVE LAW JUDGE FOUND THE MODIFICATIONS RESULTING FROM THIS
ANNOUNCEMENT EXPLICITLY AFFECTED AFM 3510'S REQUIREMENTS CONCERNING THE
TECHNICIANS' APPEARANCE IN THEIR CIVILIAN STATUS. THEREAFTER, ON JUNE
20, 1972, THE BASE DETACHMENT COMMANDER SENT A MEMORANDUM TO ALL
TECHNICIANS WHICH STATED, IN PERTINENT PART, THAT AN INSPECTION WOULD BE
MADE ON JUNE 23, 1972, OF ALL WORKING AREAS, AND INCLUDED IN SUCH
INSPECTION WOULD BE PERSONAL APPEARANCE OF TECHNICIANS. THE MEMORANDUM
WENT ON TO SAY THAT VIOLATIONS IN THE AREAS SPECIFIED WOULD BE REFLECTED
IN A TECHNICIAN'S PERFORMANCE REPORT, WHICH COULD LEAD TO DENIAL OF A
STEP INCREASE, SUSPENSION, OR AFFECT FUTURE MILITARY PROMOTION. AFTER
THE INSPECTION, SEVERAL TECHNICIANS WERE "WRITTEN-UP" FOR WEARING THEIR
HAIR LONGER THAN REGULATION LENGTH. THE ADMINISTRATIVE LAW JUDGE FOUND
THAT, PRIOR TO THE INSPECTION, THE RESPONDENT HAD TOLERATED SOME
DEVIATION FROM THE HAIR GROOMING STANDARDS AND THAT THESE DEVIATIONS
OFTEN GAVE THE IMPRESSION TO THE TECHNICIANS THAT CONFORMITY WAS LARGELY
A MATTER OF PERSONAL CHOICE AND FAILURE TO CONFORM WOULD NOT AFFECT
THEIR EMPLOYMENT STATUS.
THE RECORD REVEALS THAT THE RESPONDENT DID NOT INFORM THE COMPLAINANT
OF ITS INTENTION TO ISSUE THE MEMORANDUM OF JUNE 20, 1972, BASED ON THE
VIEW THAT IT CONTAINED NO CHANGE IN ESTABLISHED POLICY. THERE WAS NO
EVIDENCE TO INDICATE THAT THE "WRITE UPS" WHICH RESULTED FROM THE
INSPECTION WERE MADE PART OF THE TECHNICIANS' FILES, NOR WERE THERE ANY
DISCIPLINARY ACTIONS TAKEN AGAINST THEM. AFTER THE INSPECTION, FOUR
INFORMAL MEETINGS AND ONE FORMAL MEETING WERE HELD BETWEEN THE PARTIES
CONCERNING THE MEMORANDUM OF JUNE 20, 1972. THROUGHOUT THESE MEETINGS,
THE RESPONDENT DID NOT RETREAT FROM ITS POSITION THAT IT WAS PRIVILEGED
TO ISSUE THE MEMORANDUM WITHOUT PRIOR CONSULTATION BECAUSE IT CONTAINED
MERELY A REITERATION OF EXISTING POLICY OR REGULATION. THE RESPONDENT
CONCEDED, HOWEVER, THAT THE MEMORANDUM DID REPRESENT A CHANGE IN THE
MANNER OF ENFORCEMENT WITH RESPECT TO UNIFORM REQUIREMENTS, INCLUDING
HAIR LENGTH.
THE COMPLAINANT CONTENDS THAT THE MEMORANDUM OF JUNE 20, 1972, IN
FACT, REPRESENTED A CHANGE IN THE WORKING CONDITIONS OF UNIT EMPLOYEES
AND THAT THE RESPONDENT WAS REQUIRED UNDER THE EXECUTIVE ORDER TO INFORM
THE COMPLAINANT OF ITS INTENTION TO CHANGE SUCH WORKING CONDITIONS AND
TO BARGAIN IN THIS REGARD UPON REQUEST. IN THIS CONNECTION, THE
COMPLAINANT ARGUES THAT IN FEBRUARY 1972, THE RESPONDENT RELAXED THE
GROOMING STANDARDS CONTAINED IN AFM 3510 BUT, THEREAFTER, UNILATERALLY
RETURNED TO A STRICT POLICY BY VIRTUE OF ITS JUNE 20, 1972, MEMORANDUM.
IT ALSO ALLEGES THAT THE STANDARD WITH RESPECT TO HAIRCUTS REPRESENTED A
DEPARTURE FROM PAST PRACTICE BECAUSE IT APPLIED TO TECHNICIANS WHILE IN
CIVILIAN AS WELL AS MILITARY STATUS. THE RESPONDENT, ON THE OTHER HAND,
ARGUES THAT IT WAS NOT OBLIGATED TO CONSULT ON MATTERS INVOLVING THE
WEARING OF THE UNIFORM, AND THAT, IN ANY EVENT, THE JUNE 20, 1972,
MEMORANDUM DID NOT CONTAIN A CHANGE IN POLICY WITH RESPECT TO GROOMING.
IN HIS REPORT AND RECOMMENDATIONS, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT PRIOR TO THE INSPECTION THE RESPONDENT WAS LAX IN ENFORCING HAIR
STANDARDS FOR TECHNICIANS WHEN EMPLOYED IN THEIR CIVILIAN CAPACITY AND
NOTED THAT NO TECHNICIAN EVER HAD BEEN "WRITTEN UP" PREVIOUSLY FOR A
VIOLATION IN THIS RESPECT. HE ALSO FOUND THAT THERE WAS SUBSTANTIAL
NONCOMPLIANCE WITH THE EXISTING STANDARD, BUT THAT THE DEGREE OF
DEVIATION FROM THE STANDARDS HAD BEEN SLIGHT. HOWEVER, THE
ADMINISTRATIVE LAW JUDGE REJECTED THE COMPLAINANT'S CONTENTION THAT BY
THE ISSUANCE OF THE JUNE 20, 1972, MEMORANDUM, THE RESPONDENT RETURNED
TO A POLICY OF ADHERENCE TO AFM 3510 AFTER HAVING RELAXED THE STANDARDS
BY ADOPTING THE LESS STRINGENT ARMY STANDARDS WITH RESPECT TO GROOMING.
FURTHER, HE REJECTED THE COMPLAINANT'S CONTENTION THAT THE MEMORANDUM
UNILATERALLY CHANGED WORKING CONDITIONS WHILE TECHNICIANS WERE IN
CIVILIAN STATUS.
UNDER ALL OF THE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT THE JUNE 20, 1972, MEMORANDUM, IN EFFECT, ANNOUNCED A SHARP AND
SIGNIFICANT SHIFT IN THE MATTER OF ENFORCEMENT OF EXISTING GROOMING
STANDARDS AND, IN HIS VIEW, BUT FOR THE TERM OF THE PARTIES' NEGOTIATED
AGREEMENT, THE RESPONDENT'S UNILATERAL CONDUCT IN THIS REGARD WOULD
CONSTITUTE A VIOLATION OF SECTION 19(A)(6) OF THE ORDER. HE NOTED,
HOWEVER, THAT ARTICLE 11.5(A) OF THE PARTIES' NEGOTIATED AGREEMENT
PROVIDED FOR THE NEGOTIATION OF A SUPPLEMENTAL AGREEMENT WITH RESPECT TO
"WEARING OF THE UNIFORM," IF THAT SUBJECT WERE DECLARED A NEGOTIABLE
ITEM. FURTHER, HE NOTED THAT FROM A READING OF THE AFM, PERSONAL
GROOMING WAS AN INTEGRAL PART OF THE PHRASE "WEARING OF THE UNIFORM." IN
THESE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE REASONED THAT THE
PARTIES HAD, IN EFFECT, AGREED TO DEFER NEGOTIATION ON THE SUBJECT OF
GROOMING PENDING THE RESOLUTION OF ITS NEGOTIABILITY. HE NOTED THAT THE
COMPLAINANT HAD NOT REQUESTED SUCH RESOLUTION UNDER THE APPROPRIATE
PROCEDURES OUTLINED IN SECTION 11(C) OF THE ORDER BUT, RATHER, HAD
CHOSEN THE INAPPROPRIATE UNFAIR LABOR PRACTICE FORUM. ACCORDINGLY, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE ASSISTANT SECRETARY WAS WITHOUT
AUTHORITY TO RESOLVE THE THE ISSUE OF NEGOTIABILITY AND RECOMMENDED THAT
THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE EVIDENCE
DOES NOT CLEARLY REFLECT THAT THE PARTIES HAD EXCLUDED THE SUBJECT OF
PERSONAL GROOMING FROM NEGOTIATIONS. IN THIS CONNECTION, IT WAS NOTED
THAT THEIR NEGOTIATED AGREEMENT DID NOT CLEARLY AND UNEQUIVOCALLY
INDICATE THAT THE SUBJECT OF PERSONAL GROOMING WAS NOT BARGAINABLE
PENDING THE RESOLUTION OF ITS NEGOTIABILITY. THUS, NEITHER SECTION
11.5(A) NOR ANY OTHER PROVISION OF THE NEGOTIATED AGREEMENT SPECIFICALLY
ALLUDES TO PERSONAL GROOMING STANDARDS. FURTHER, THERE IS NO INDICATION
IN THE AGREEMENT THAT THE PHRASE "WEARING OF THE UNIFORM" WAS INTENDED
TO ENCOMPASS GROOMING STANDARDS OR TO INCORPORATE AFM 3510 WHICH DEALS
WITH SUCH STANDARDS. FINALLY, THERE WAS NO EVIDENCE OF BARGAINING
HISTORY TO SHOW THAT THE PARTIES HAD INTENDED TO WAIVE BARGAINING ON
THIS SUBJECT PENDING THE RESOLUTION OF ITS NEGOTIABILITY. UNDER ALL OF
THESE CIRCUMSTANCES, I FIND THAT THE EVIDENCE DOES NOT ESTABLISH THAT
THE PARTIES HEREIN HAD CLEARLY AND UNEQUIVOCALLY EXCLUDED FROM
BARGAINING THE SUBJECT OF PERSONAL GROOMING. /1/
HOWEVER, WHILE I DO NOT FIND THAT THE PARTIES, BY CONTRACT, EXPRESSLY
WAIVED AS A NEGOTIABLE ITEM PERSONAL GROOMING STANDARDS, I FIND THAT
SUCH SUBJECT IS, NEVERTHELESS NONNEGOTIABLE UNDER THE CIRCUMSTANCES. IN
THIS REGARD, THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL), IN A CASE
INVOLVING THE SAME PARTIES AS ARE INVOLVED HEREIN, /2/ HELD PROPER THE
DETERMINATION OF THE AGENCY HEAD (CHIEF OF THE NATIONAL GUARD BUREAU)
THAT THE COMPLAINANT'S PROPOSAL (APPARENTLY IN THE CONTEXT OF SUBSEQUENT
NEGOTIATIONS NOT INVOLVED HEREIN) CONCERNING THE WEARING OF THE UNIFORM
WAS NONNEGOTIABLE UNDER AGENCY REGULATIONS. AS IT IS CLEAR THAT
PERSONAL GROOMING STANDARDS ALSO ARE ESTABLISHED BY AGENCY REGULATIONS
AND THAT, UNDER THE REGULATIONS, OF THE UNIFORM, WHICH SUBJECT, AS NOTED
ABOVE, WAS FOUND TO BE NON-NEGOTIABLE BY THE COUNCIL, I FIND THAT THE
RESPONDENT WAS NOT OBLIGATED TO MEET AND CONFER ON THE DECISION TO
INSTITUTE A NEW POLICY WITH RESPECT TO THE ENFORCEMENT OF PERSONAL
GROOMING STANDARDS.
IN PRIOR DECISIONS, IT HAS BEEN HELD THAT NOTWITHSTANDING THE FACT
THAT A PARTICULAR MANAGEMENT DECISION IS NONNEGOTIABLE, AGENCY OR
ACTIVITY MANAGEMENT IS REQUIRED UNDER THE ORDER TO MEET AND CONFER ON
THE PROCEDURES MANAGEMENT INTENDS TO USE IN IMPLEMENTING THE DECISION
INVOLVED AND ON THE IMPACT OF SUCH DECISION ON ADVERSELY AFFECTED
EMPLOYEES. /3/ IN THE INSTANT CASE, THE EVIDENCE ESTABLISHES THAT THE
RESPONDENT DID NOT PREVIOUSLY NOTIFY THE COMPLAINANT OF THE MATTERS
CONTAINED IN THE JUNE 20, 1972, MEMORANDUM, DESPITE THE FACT THAT, AS
FOUND BY THE ADMINISTRATIVE LAW JUDGE, THE POLICY CONTAINED THEREIN
REPRESENTED A SIGNIFICANT SHIFT FROM PAST PRACTICE IN THE ENFORCEMENT OF
GROOMING STANDARDS. MOREOVER, THE RESPONDENT FAILED TO MEET AND CONFER
WITH THE COMPLAINANT ON THE IMPACT OF THE INSTITUTION OF ITS NEW POLICY
WITH RESPECT TO THE ENFORCEMENT OF GROOMING STANDARDS. IN MY VIEW, SUCH
CONDUCT BY THE RESPONDENT WAS IN DEROGATION OF ITS BARGAINING OBLIGATION
UNDER THE ORDER BECAUSE IT IS CLEAR THAT BY ITS OPPORTUNITY TO MEET AND
CONFER TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS ON THE
PROCEDURES TO BE UTILIZED IN EFFECTUATING THE RESPONDENT'S NEW POLICY
WITH RESPECT TO THE ENFORCEMENT OF GROOMING STANDARDS AND ON THE IMPACT
OF SUCH POLICY ON ADVERSELY AFFECTED EMPLOYEES. UNDER THESE
CIRCUMSTANCES, I FIND THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF
THE ORDER. /4/
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 MEXICO AIR
NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS, OFFICE OF THE ADJUTANT
GENERAL, SANTA FE, NEW MEXICO, SHALL:
1. CEASE AND DESIST FROM:
UNILATERALLY IMPLEMENTING ITS MEMORANDUM ISSUED ON JUNE 20, 1972,
CONCERNING GROOMING REQUIREMENTS EXPECTED TO BE OBSERVED BY EMPLOYEES
REPRESENTED EXCLUSIVELY BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL 1636, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT NOTIFYING
LOCAL 1636, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EFFECTUATING ITS NEW POLICY WITH RESPECT TO THE ENFORCEMENT OF GROOMING
STANDARDS AND ON THE IMPACT SUCH POLICY WILL HAVE ON THE 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 LOCAL 1636, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE IN POLICY
WITH RESPECT TO THE ENFORCEMENT OF GROOMING STANDARDS AND, UPON REQUEST,
MEET AND CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EFFECTUATING ITS NEW POLICY WITH RESPECT TO THE ENFORCEMENT OF GROOMING
STANDARDS AND ON THE IMPACT SUCH POLICY WILL HAVE ON THE EMPLOYEES
ADVERSELY AFFECTED BY SUCH ACTION.
(B) POST AT ITS AIR NATIONAL GUARD FACILITY AT ALBUQUERQUE, NEW
MEXICO, 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 BASE
DETACHMENT 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 BASE DETACHMENT 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 TWENTY (20) DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ CF. NASA, KENNEDY SPACE CENTER, KENNEDY SPACE CENTER, FLORIDA,
A/SLMR NO. 223.
/2/ NFFE LOCAL 1636 AND NEW MEXICO NATIONAL GUARD, FLRC NO. 73A-13,
ISSUED SEPTEMBER 17, 1973.
/3/ CF. UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289; FEDERAL
AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES EXPERIMENTAL
CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 329; U.S. DEPARTMENT OF
INTERIOR, BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER,
ALBUQUERQUE, NEW MEXICO, A/SLMR NO. 341. SEE ALSO VETERANS
ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC NO. 71A-31,
AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56.
/4/ AS THE COMPLAINANT DID NOT ALLEGE A VIOLATION OF 19(A)(1) IN ITS
COMPLAINT, NOR MOVED TO AMEND THE COMPLAINT IN THIS REGARD, I FIND THAT
FURTHER PROCEEDINGS HEREIN UNDER SECTION 19(A)(1) WERE UNWARRANTED.
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH BY INSTITUTING A
NEW POLICY WITH RESPECT TO THE ENFORCEMENT OF GROOMING STANDARDS
AFFECTING EMPLOYEES EXCLUSIVELY REPRESENTED BY LOCAL 1636, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
WITHOUT NOTIFYING LOCAL 1636, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EFFECTUATING ITS NEW POLICY CHANGING GROOMING REQUIREMENTS, AND ON THE
IMPACT SUCH POLICY WILL HAVE ON THE EMPLOYEES ADVERSELY AFFECTED BY SUCH
ACTION.
WE WILL NOTIFY LOCAL 1636, NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE, OF ANY INTENDED CHANGE IN POLICY
WITH RESPECT TO THE ENFORCEMENT OF GROOMING STANDARDS AND, UPON REQUEST,
MEET AND CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
EFFECTUATING ITS NEW POLICY, AND ON THE IMPACT SUCH POLICY WILL HAVE ON
THE EMPLOYEES ADVERSELY AFFECTED BY SUCH ACTION.
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 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, ROOM 2200, FEDERAL OFFICE BUILDING, 911 WALNUT
STREET, KANSAS CITY, MISSOURI 64106
NEW MEXICO AIR NATIONAL GUARD
DEPARTMENT OF MILITARY AFFAIRS
OFFICE OF THE ADJUTANT GENERAL
SANTA FE, NEW MEXICO
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1636
ALBUQUERQUE, NEW MEXICO
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
APPEARANCES: BILL CHAPPEL, JR., ESQUIRE
SUITE 217 - CITIZEN'S BANK BLDG.
ALBUQUERQUE, NEW MEXICO 87110, FOR THE RESPONDENT
DAVID MARKMAN, ESQUIRE
1737 H STREET, N.W.
WASHINGTON, D.C. 20006, FOR THE COMPLAINANT
HEARING: JANUARY 16, 1973, ALBUQUERQUE, NEW MEXICO
THIS PROCEEDING AROSE UNDER EXECUTIVE ORDER 11491 PURSUANT TO THE
NOTICE OF HEARING ISSUED ON DECEMBER 8, 1972, BY THE REGIONAL
ADMINISTRATOR OF THE U.S. DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES
ADMINISTRATION, KANSAS CITY REGION.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES LOCAL 1636 FILED A COMPLAINT
ON AUGUST 31, 1972, AGAINST THE NEW MEXICO ARMY AND AIR NATIONAL GUARD.
THE COMPLAINT, AS AMENDED ON SEPTEMBER 18, 1972, ALLEGED THAT RESPONDENT
VIOLATED SEC. 19(A)(6) OF THE EXECUTIVE ORDER BY REFUSING TO CONSULT,
CONFER OR NEGOTIATE WITH IT PRIOR TO THE ISSUANCE ON JUNE 20, 1972, OF A
LETTER WHICH CALLED FOR STRICT ENFORCEMENT OF THE STANDARDS FOR PERSONAL
GROOMING.
A HEARING WAS HELD BEFORE THE UNDERSIGNED IN ALBUQUERQUE, NEW MEXICO,
ON JANUARY 16, 1973. BOTH PARTIES WERE REPRESENTED BY COUNSEL, AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE
AND CROSS-EXAMINE WITNESSES. BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN
CAREFULLY CONSIDERED. /1/
UPON THE ENTIRE RECORD, AND MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
AT ALL RELEVANT TIMES RESPONDENT'S CIVILIAN AIR TECHNICIANS HAVE BEEN
COVERED BY A COLLECTIVE BARGAINING AGREEMENT WITH COMPLAINANT (NFFE
EXHIBIT 1). ARTICLE 7 OF THE AGREEMENT ESTABLISHES A PROCEDURE FOR THE
RESOLUTION OF TECHNICIAN GRIEVANCES AND DISPUTES OVER THE INTERPRETATION
AND APPLICATION OF THE AGREEMENT. ARTICLE 5 LAYS OUT, LARGELY IN
LANGUAGE LIFTED FROM THE EXECUTIVE ORDER, THE DUTY OF THE PARTIES TO
CONSULT AND NEGOTIATE. ARTICLE 11.5(A) PROVIDES FOR NEGOTIATION OF A
SUPPLEMENTAL AGREEMENT ON THE WEARING OF THE UNIFORM IF THAT SUBJECT IS
DECLARED A NEGOTIABLE ITEM. THERE IS NO EVIDENCE THAT EITHER PARTY EVER
SOUGHT OR SECURED A RULING ON NEGOTIABILITY. FOR SOMETIME THERE HAS
BEEN AMONG THE TECHNICIANS DISSATISFACTION WITH THE REQUIREMENT THAT
THEY WEAR THE UNIFORM AND CONFORM THEIR HAIR STYLE TO THE REGULATIONS
WHILE IN CIVILIAN STATUS.
A CIVILIAN AIR TECHNICIAN IS AN "EXCEPTED" CIVIL SERVICE EMPLOYEE WHO
PUTS IN A REGULAR WORKWEEK IN SUCH STATUS. HE IS REQUIRED BY LAW, AS A
CONDITION OF SUCH EMPLOYMENT, TO BELONG TO THE AIR NATIONAL GUARD, AND
HE MUST ATTEND ONE WEEKEND DRILL EACH MONTH AS WELL AS TWO WEEKS AT
SUMMER "CAMP." DURING THE LATTER PERIODS, HE IS, OF COURSE, IN MILITARY
STATUS. AIR NATIONAL GUARD REGULATIONS (ANGR 40-01) AT PARAGRAPH 2-5
REQUIRE THAT "TECHNICIANS IN THE EXCEPTED SERVICE WILL WEAR THE MILITARY
UNIFORM APPROPRIATE TO THEIR SERVICE AND FEDERALLY RECOGNIZED GRADE WHEN
PERFORMING TECHNICIAN DUTIES." THE AIR FORCE MANUAL (AFM-3510, AT
PARAGRAPHS 7-8, 7-9 AND 1-12) DEALS WITH CONDITIONS OF DRESS AND
DECORUM, SETS FORTH THE APPLICABLE CRITERIA, AND PROVIDES THAT
VIOLATIONS WILL BE DEALT WITH "UNDER PROVISIONS OF AIR FORCE AND AIR
NATIONAL GUARD REGULATIONS, AS APPROPRIATE."
APPARENTLY AS A RESULT OF THE TECHNICIANS' DISSATISFACTION WITH THE
GROOMING STANDARDS SET FORTH IN AFM-3510, COLONEL ROBERT L. SANDS, THE
BASE DETACHMENT COMMANDER, ADDRESSED HIMSELF TO THE PROBLEM IN REMARKS
HE MADE TO ASSEMBLED TECHNICIANS AT AN AWARDS CEREMONY IN LATE FEBRUARY
1972. HE INFORMED THE MEN THAT THE MORE LENIENT GROOMING STYLE
PERMITTED BY THE ARMY STANDARDS AND DEPICTED IN ARMY POSTERS WOULD BE
ADOPTED. ARMY ILLUSTRATIONS OF ACCEPTABLE APPEARANCE WERE POSTED AROUND
THE BASE, AND THE LIMITS OF HAIR, SIDEBURN AND MUSTACHE LENGTH WERE KNOW
BY THE TECHNICIANS. THE TESTIMONY OF THE WITNESSES WHO ATTENDED THE
FEBRUARY MEETING IS INCONSISTENT, AND THE RECORD IN CONSEQUENCE IS
SOMEWHAT CONFUSING WITH RESPECT TO WHETHER RELAXATION OF THE STANDARD
APPLIED ONLY TO ACTIVE DUTY TIME OR ALSO TO CIVILIAN TIME. I FIND ON
THE BASIS OF MAJOR ROBERT JOHNSONS CLEAR AND CONVINCING TESTIMONY THAT
THE MODIFICATION EXPLICITLY AFFECTED AFM-3510'S REQUIREMENTS CONCERNING
CIVILIAN STATUS.
ON JUNE 20, 1972, COLONEL SANDS SENT TO ALL TECHNICIANS A MEMORANDUM
WHICH IN RELEVANT RESPECTS SAID:
"1. ON FRIDAY, 23 JUNE 1972, A GENERAL INSPECTION WILL BE MADE OF
ALL WORKING
AREAS. ITEMS TO BE INSPECTED INCLUDE: A) UTILIZATION OF SAFETY
EQUIPMENT, B) PERSONAL
APPEARANCE OF TECHNICIANS, AND C) GENERAL HOUSEKEEPING PRACTICES IN
WORK AREAS. THE OIC OR
DESIGNATED ALTERNATE OF EACH SECTION WILL CONDUCT THIS INSPECTION AND
ANY SUBSEQUENT ONES.
"5. VIOLATIONS IN THESE AREAS WILL BE REFLECTED IN THE TECHNICIAN'S
PERFORMANCE
REPORT. THIS COULD LEAD TO DENIAL OF A STEP INCREASE OR SUSPENSION
IN ACCORDANCE WITH ANGR
40-01. IN ADDITION, FUTURE MILITARY PROMOTIONS COULD BE AFFECTED."
ON JUNE 23 THE SCHEDULED INSPECTION OCCURRED. THE INSPECTING
OFFICERS "WROTE UP" A NUMBER OF MEN, I.E., AFTER MAKING REMARKS ABOUT
INAPPROPRIATE HAIR LENGTH, THEY WROTE SOMETHING DOWN ON PAPER. MANY
TECHNICIANS WERE DISTURBED, AS THIS WAS THE FIRST OCCASION WHEN ANY OF
THEM WAS "WRITTEN UP" BECAUSE OF HAIRSTYLE NOT CONFORMING TO THE
REGULATIONS, AND SUCH ACTION WAS THREATENING TO THEM IN THE CONTEXT OF
PARAGRAPH 5 OF THE JUNE 20 MEMO FROM COLONEL SANDS. THEY WERE
APPARENTLY ALSO DISTURBED OVER THE FACT THAT THE UNION HAD ASSURED THEM
THAT NO SUCH "CRACKDOWN" WAS GOING TO TAKE PLACE.
PRIOR TO THE ISSUANCE OF THE MEMO, NO SUCH INSPECTION (AS RESPECTS
APPEARANCE) HAD TAKEN PLACE, AT LEAST SINCE 1965. MOREOVER, ACCORDING
TO THE TECHNICIANS, THERE WAS WIDESPREAD DISREGARD OF THE STANDARDS.
WHILE THE TESTIMONY OF THE OFFICERS WAS MUCH MORE CONSERVATIVE
RESPECTING THE DEGREE OF DISREGARD, AND THE RECORD IS VERY CONFUSING IN
THIS RESPECT. /2/ I FIND THAT RESPONDENT IN FACT TOLERATED SLIGHT
DEVIATION FROM THE STANDARDS OFTEN ENOUGH TO GIVE THE IMPRESSION THAT
SUCH DEVIATION WAS LARGELY A MATTER OF PERSONAL CHOICE, AND THAT FAILURE
TO STRICTLY ABIDE BY THE CRITERIA WOULD NOT AFFECT ONE'S EMPLOYMENT.
IT IS UNDISPUTED THAT RESPONDENT DID NOT INFORM THE UNION OF ITS
INTENTION TO ISSUE THE MEMORANDUM OF JUNE 20. BOTH LT. EZEQUIEL ORTIZ,
A PERSONNEL OFFICER, AND MAJOR ROBERT JOHNSON, NEW MEXICO STATE
ADMINISTRATIVE OFFICER, TESTIFIED THAT COLONEL SANDS TOOK THE POSITION
THAT THE MEMO IN NO WAY CHANGED EXISTING POLICY AND THEREFORE NEED NOT
BE DISCUSSED WITH THE UNION. AS ORTIZ TESTIFIED, MANAGEMENT PERSONNEL
AT A STAFF MEETING DISCUSSED THE QUESTION WHETHER THERE WAS ANY NEED TO
CONSULT THE UNION REGARDING THE MEMORANDUM BEFORE IT ISSUED, AND
"COLONEL SANDS SAID HE FELT THAT SINCE THERE WAS NO CHANGE IN POLICIES,
EVERYTHING ALREADY EXISTED IN THE REGULATIONS, THAT THERE WAS NO NEED TO
CONSULT WITH THE LABOR ORGANIZATION."
IT IS ALSO EVIDENT THAT RESPONDENT ATTEMPTED TO WITHHOLD SUCH
INFORMATION FROM THE UNION. THUS, THERE WERE RUMORS OF IMPENDING POLICY
CHANGES AND OF AN INSPECTION. SERGEANT AMBROCIO CHAVEZ, AN ALTERNATE
STEWARD, ASKED LT. ORTIZ, APPARENTLY ON WEDNESDAY BEFORE THE JUNE 20
MEMO ISSUED )AS WEDNESDAY IS ORTIZ'S DAY AT THE BASE), WHETHER ANY
CHANGES OR INSPECTION WERE ABOUT TO TAKE PLACE. ORTIZ, WHO HAD DRAFTED
THE MEMORANDUM, DENIED KNOWLEDGE OF ANY SUCH THING. ON THE MORNING OF
JUNE 21 HE SAW THE MEMO IN THE MAIL AWAITING DISTRIBUTION, AND SHOWED IT
TO ORTIZ. ORTIZ DENIED EVER HAVING SEEN IT. HE THEN TOOK IT TO MAJOR
JOHNSON AND ASKED WHY THE MESSAGE WAS COMMUNICATED TO THE MEMBERSHIP.
MAJOR JOHNSON REPLIED THAT COLONEL SANDS HAD DECIDED THERE WAS NO NEED
TO CONSULT. APPARENTLY HE OR ORTIZ STATED IN THE SAME CONVERSATION THAT
THE MEMO WAS REQUIRED BECAUSE OF NONCOMPLIANCE WITH THE GROOMING
STANDARDS, BUT THAT THERE WAS NO NEED FOR CONSULTATION AS THERE WAS NO
CHANGE IN POLICY.
THERE WAS NO FURTHER DISCUSSION BETWEEN UNION AND MANAGEMENT
OFFICIALS PRIOR TO THE INSPECTION ON JUNE 23. AS NOTED ABOVE, A NUMBER
OF TECHNICIANS WERE WRITTEN UP. THUS, AMBROCIO CHAVEZ, EDMUND BACA, AND
TERRY KAWCHEK TESTIFIED THAT THEY WERE WRITTEN UP FOR VIOLATION OF THE
GROOMING STANDARDS ON JUNE 23, AND KAWCHEK ASSERTED HIS BELIEF THAT IT
HAD AN EFFECT ON HIS TWICE BEING DENIED A PROMOTION.
UNION PRESIDENT DONNELL MONTOYA REQUESTED THAT RESPONDENT DISCLOSE
THE NAMES OF MEN NOTED FOR VIOLATION DURING THE INSPECTION, BUT HIS
REQUEST WAS REFUSED. HE TESTIFIED THAT MANAGEMENT "DID SAY THAT NO
ACTION WOULD BE TAKEN AGAINST THESE PEOPLE. WE LEFT IT AT THAT. SO
LONG AS PEOPLE WERE NOT HURT BY IT, FINE AND DANDY." /3/
THE SUBJECT OF THE MEMO WAS DISCUSSED BY UNION AND MANAGEMENT
REPRESENTATIVES INFORMALLY ON JUNE 28, JULY 12, JULY 24, AND JULY 27,
AND FORMALLY ON AUGUST 2. RESPONDENT DID NOT RETREAT FROM ITS POSITION
THAT IT WAS PRIVILEGED TO ISSUE THE MEMO WITHOUT ANY PRIOR CONSULTATION
BECAUSE IT WAS A MERE REITERATION OF EXISTING POLICY OR REGULATION. IT
AGREED TO CHANGE THE WORD "WILL" IN PARAGRAPH 5 OF THE JUNE 20 MEMO TO
"MAY," SO AS TO MAKE DISCRETIONARY RATHER THAN MANDATORY THE ENTRY OF
ANY NOTE REFLECTING VIOLATIONS IN A TECHNICIAN'S PERFORMANCE REPORT.
COLONEL WILLIAM C. THOMPSON, JR., TECHNICIAN PERSONNEL OFFICER, CREDIBLY
TESTIFIED THAT RESPONDENT, AT THE AUGUST 2 FORMAL SESSION, OFFERED TO
DROP PARAGRAPH 5 ALTOGETHER, THUS ELIMINATING ANY REFERENCE TO
PARTICULAR FORMS OF DISCIPLINE, AND TO SUBSTITUTE A SENTENCE INDICATING
SIMPLY THAT A TECHNICIAN IN VIOLATION COULD BE DISCIPLINED UNDER
EXISTING REGULATIONS.
THE EVIDENCE CONCERNING THE DEGREE OF NONCOMPLIANCE TOLERATED BY
RESPONDENT IS HIGHLY INCONSISTENT. UNION PRESIDENT MONTOYA TESTIFIED
THAT RESPONDENT TOLERATED GROOMING STANDARDS EXCEEDING THOSE SET FORTH
IN THE ARMY POSTERS. ALTERNATE STEWARD CHAVEZ ASSERTED THAT, IF
DEVIATIONS OF 1/16 OF AN INCH CONSTITUTED NONCOMPLIANCE, 80 PERCENT OF
THE TECHNICIANS WERE IN VIOLATION OF THE STANDARD. CHIEF STEWARD WARREN
WILSON TESTIFIED THAT HIS SIDEBURNS WERE TOO LONG FROM 1968 TO 1972
WITHOUT INCIDENT, UNTIL ON OCTOBER 24, 1972, HIS SUPERVISOR TOLD HIM
THEY WERE TOO LONG. HE ROUTINELY SHORTENED THEM FOR HIS MONTHLY DRILL.
EDMUND BACA TESTIFIED THAT SUPERVISORS WOULD NOT BOTHER MEN WHOSE
SIDEBURNS WERE UP TO 1/2 INCH TOO LONG, OR WHOSE HAIR TOUCHED THEIR
EARS, EXCEPT AT OR JUST BEFORE, DRILL TIME. HE ESTIMATED OVER 90
PERCENT OF THE TECHNICIANS VIOLATED THE STANDARDS OF AFM-3510. TERRY
KAWCHEK ESTIMATED 50 PERCENT OF THE MEN EXCEEDED THE LIMITS DEPICTED IN
THE POSTERS, AND STATED THAT SUPERVISORS WOULD ASK WHETHER HIS HAIR
WASN'T TOO LONG, ALWAYS A DAY OR TWO BEFORE DRILL TIME. ON THE OTHER
HAND, OFFICERS ESTIMATED NONCOMPLIANCE AT ZERO TO 10 PERCENT. THE
TESTIMONY OF THE TECHNICIANS STRONGLY SUGGEST THAT THEIR SUPERVISORS
MENTIONED LONG HAIR ONLY BEFORE DRILL TIME. AS NOTED ABOVE, RESPONDENT
UNDERSTANDABLY ARGUES THAT, AS THE MEN WERE PROPERLY GROOMED FOR DRILLS,
THERE WAS LITTLE OCCASION FOR NONCOMPLIANCE UNTIL THE WEEK BEFORE THE
NEXT DRILL. IT IS CLEAR THAT NO INSPECTIONS CONCERNED WITH PERSONAL
GROOMING HAD TAKEN PLACE FOR YEARS, IF EVER, AND THAT NO TECHNICIANS HAD
EVER BEEN "WRITTEN UP," EITHER INFORMALLY BY THE TAKING OF A NOTE FOR
THE SUPERVISOR'S PERSONAL USE, OR BY ENTRY OF A NOTE ON THE FORM 7B.
MAJOR JOHNSON CONCEDED THAT IT IS POSSIBLE SUCH "INFORMAL" NOTES MIGHT
AFFECT A TECHNICIANS CAREER, AND THAT PARAGRAPH 5 OF THE JUNE 20 MEMO
CONSTITUTED "A LITTLE STRICTER ENFORCEMENT OF WHAT THE POLICY HAS ALWAYS
BEEN." HE FURTHER CONCEDED THAT SOMEWHAT STRICTER ENFORCEMENT WAS, IF
NOT A CHANGE IN THE POLICY OF THE REGULATIONS, A CHANGE IN MANNER OF
ENFORCEMENT.
COMPLAINANT ARGUES THAT THE JUNE 20 MEMO REPRESENTED A CHANGE IN
WORKING CONDITIONS FOR MEMBERS OF THE UNIT IT EXCLUSIVELY REPRESENTS,
AND THAT THE EXECUTIVE ORDER THEREFORE REQUIRED RESPONDENT TO INFORM
COMPLAINANT OF ITS INTENTION TO CHANGE ITS POLICY AND TO BARGAIN ABOUT
IT UPON REQUEST. THIS ARGUMENT APPEARS TO BE TWO-PRONGED: (1) THAT
RESPONDENT IN FEBRUARY 1972 RELAXED THE GROOMING STANDARD OF AFM-3510
AND THEREAFTER UNILATERALLY RETURNED TO A STRICT POLICY OF ADHERENCE TO
AFM-3510 IN THE JUNE 20 MEMO, AND (2) THAT RESPONDENT IN ANY EVENT
CHANGED ITS POLICY WITH RESPECT TO GROOMING BY DEPARTING FROM A
CONSISTENT PRACTICE OF MERE ORAL REQUESTS THAT COMPLIANCE OCCUR AND
INSTITUTING A PROCEDURE WHICH INCLUDED FORMAL INSPECTIONS AND REQUIRED A
WRITTEN RECORD OF NONCOMPLIANCE, WITH ITS IMPACT ON STEP INCREASES,
PROMOTIONS, OR SUSPENSIONS. COMPLAINANT ALSO ARGUES THAT, BY THE JUNE
20 MEMO, RESPONDENT INSTITUTED A POLICY OF ENFORCING THE STANDARDS WHILE
TECHNICIANS WERE IN CIVILIAN STATUS, A UNILATERAL DEPARTURE FROM ITS
PRIOR POLICY OF ENFORCING AFM-3510 ONLY WHEN THEY WERE IN MILITARY
STATUS. FINALLY, ALTHOUGH THE COMPLAINT DOES NOT ALLEGE IT AND NO
MOTION TO AMEND WAS EVER MADE, COMPLAINANT ARGUES THAT RESPONDENT'S
CONDUCT VIOLATED SEC. 19(A)(1) OF THE ORDER IN THAT IT THEREBY
DEMONSTRATED THAT IT CAN BYPASS COMPLAINANT AT WILL, THUS, DISCOURAGING
EMPLOYEE PARTICIPATION IN COMPLAINANT.
RESPONDENT MAKES TWO MAIN ARGUMENTS: (1) THAT IT IS NOT REQUIRED TO
CONSULT ON ISSUES INVOLVING THE WEARING OF THE UNIFORM AND (2), THAT THE
JUNE 20 MEMO IN ANY EVENT DID NOT CHANGE ITS POLICY WITH RESPECT TO
GROOMING. IT ALSO ASSERTS THAT IN THE PRESENCE OF A CONTRACT, ANY
DISPUTE IS SUBJECT TO THE GRIEVANCE PROCEDURE, AND THAT, EVEN ASSUMING A
BARGAINING OBLIGATION MIGHT OTHERWISE HAVE BEEN BROUGHT INTO PLAY, THE
NECESSARY REQUEST WAS LACKING.
RESPONDENT RELAXED ITS GROOMING STANDARDS SLIGHTLY WHEN, IN FEBRUARY
1972, IT ADOPTED THE STANDARD USED BY THE ARMY AND DEPICTED IN ITS
POSTERS. THAT STANDARD, UNDER THE REGULATIONS, APPLIED TO THE MEN IN
THEIR CIVILIAN CAPACITY AS WELL AS WHILE IN MILITARY STATUS. RESPONDENT
WAS SOMEWHAT SOFT IN ENFORCING THAT STANDARD, AND HAD CONSISTENTLY DONE
SO BY A MERE WORD FROM THE SUPERVISOR. AT LEAST FOR SEVERAL YEARS, NO
TECHNICIAN HAD EVER BEEN REPRIMANDED FOR NONCOMPLIANCE OR TOLD THAT IT
WOULD AFFECT HIS CAREER ADVANCEMENT. NO TECHNICIAN HAD EVER BEEN
"WRITTEN UP" FOR DERELICTION IN THIS RESPECT, AND NO GENERAL INSPECTION
CONCERNED WITH THIS ISSUE HAD TAKEN PLACE IN YEARS, IF EVER.
IT IS APPARENT THAT A SUBSTANTIAL NUMBER OF TECHNICIANS WERE NOT
COMPLYING WITH THE REGULATIONS, ALTHOUGH THE DEGREE OF NONCOMPLIANCE WAS
SLIGHT. THERE IS NO EVIDENCE THAT GROSS VIOLATION OF THE CRITERIA FOR
HAIR STYLE WAS EVER TOLERATED OR, FOR THAT MATTER, ATTEMPTED BY THE MEN.
RATHER HAIR WAS SLIGHTLY LONGER THAN THE REGULATIONS ALLOWED. THIS, AS
WELL AS THE WIDESPREAD CONFUSION OVER WHETHER AFM-3510 OR AFM-3510 AS
MODIFIED BY THE MORE LENIENT ARMY STANDARDS APPLIED, NO DOUBT ACCOUNTS
FOR THE TREMENDOUS RANGE OF THE WITNESSES ESTIMATES OF NONCOMPLIANCE. I
FIND THAT THERE WAS SUBSTANTIAL (I.E., FAIRLY WIDESPREAD) NONCOMPLIANCE
WITH THE STANDARD, BUT THE DEVIATION FROM THAT STANDARD ON THE PART OF
ANY PARTICULAR INDIVIDUAL WAS SLIGHT.
I REJECT COMPLAINANT'S CONTENTION THAT RESPONDENT, BY ISSUANCE OF THE
JUNE 20 MEMO, RETURNED TO A POLICY OF ADHERENCE TO AFM-3510 AFTER HAVING
RELAXED THE STANDARD BY ADOPTING THE ARMY'S STANDARD. THIS IS APPARENT
FROM A MERE READING OF THE MEMO, WHICH EXPLICITLY INCORPORATES
MODIFICATION AND, INDEED, THREATENS TO RETURN TO THE OLD STANDARD. I
LIKEWISE REJECT COMPLAINANT'S CONTENTION THAT THE JUNE 20 MEMO
UNILATERALLY CHANGED WORKING CONDITIONS BY CALLING FOR ENFORCEMENT OF
THE STANDARD WHILE THE TECHNICIANS WERE IN CIVILIAN STATUS AS WELL AS
WHILE THEY WERE ON MILITARY STATUS. IT IS CLEAR FROM THE RECORD THAT
THE STANDARD APPLIED DURING THE NORMAL WORKWEEK (THIS, IN FACT, IS WHAT
IRKED THE MEN) AND THAT THEIR SUPERVISORS REMINDED THEM FROM TIME TO
TIME OF THE NEED TO CONFORM.
RESPONDENT'S ISSUANCE OF THE JUNE 20 MEMO CAN ONLY BE CONSTRUED AS A
FIRM STATEMENT THAT CONTINUED DISREGARD OF THE GROOMING STANDARDS WOULD
BE PUNISHED. THE REGULATIONS ON WHICH IT WAS BASED, OF COURSE, SPOKE IN
GENERAL TERMS OF THE EXISTENCE OF DISCIPLINARY MEASURES FOR
NONCOMPLIANCE. THE MEMO INFORMED THE TECHNICIANS THAT NONCOMPLIANCE
WOULD BE REFLECTED IN THEIR PERFORMANCE REPORTS AND COULD LEAD TO
SPECIFIC FORMS OF DISCIPLINE, INCLUDING LOSS OF PROMOTIONS. THERE CAN
BE LITTLE DOUBT, ON THIS RECORD, THAT THESE WORDS, COUPLED WITH
ANNOUNCEMENT OF A GENERAL INSPECTION WHICH WOULD INCLUDE PERSONAL
GROOMING, REPRESENTED A CRACKDOWN. THE MESSAGE WAS CLEARLY CONVEYED
THAT RECORDS OF VIOLATIONS WOULD BE KEPT AND COULD LEAD TO SEVERE
CONSEQUENCES ON CAREERS. I THEREFORE FIND THAT THE JUNE 20 MEMO
ANNOUNCED A SHARP AND SIGNIFICANT SHIFT IN THE MANNER OF ENFORCING
EXISTING GROOMING STANDARDS. WERE IT NOT FOR THE CONTRACT
CONSIDERATIONS DISCUSSED BELOW, I WOULD BE PERSUADED THAT ISSUANCE OF
THE MEMO WAS A MATTER AFFECTING WORKING CONDITIONS WITHIN THE MEANING OF
SEC. 11(A) OF THE ORDER AND THAT RESPONDENT'S UNILATERAL INSTITUTION OF
SUCH A CHANGE VIOLATED SEC. 19(A)(6).
HOWEVER, ARTICLE 11.5(A) OF THE COLLECTIVE BARGAINING AGREEMENT
PROVIDES FOR NEGOTIATION OF A SUPPLEMENTAL AGREEMENT WITH RESPECT TO
"WEARING OF THE UNIFORM IF DECLARED A NEGOTIABLE ITEM." ALTHOUGH NO
EVIDENCE WAS TAKEN RESPECTING THE INTENTION OF THE PARTIES, IT IS CLEAR
THAT THEY DEFERRED NEGOTIATIONS ON THIS SUBJECT PENDING A RESOLUTION OF
ITS NEGOTIABILITY. IN MY JUDGMENT THE CONCLUSION IS COMPELLED THAT
RESPONDENT TOOK THE POSITION THAT IT WAS NOT NEGOTIABLE. "WEARING OF
THE UNIFORM" IS NOT DEFINED AS ENCOMPASSING THE ELEMENT OF PERSONAL
GROOMING, BUT A READING OF THE REGULATIONS REVEALS THAT APPROPRIATE HAIR
STYLE OF AFM-3510 IS ENTITLED "WEAR OF UNIFORMS BY RESERVE, RETIRED AND
SEPARATED PERSONNEL." IT PRESCRIBES THE OCCASIONS AND CONDITIONS FOR THE
WEARING OF THE UNIFORM, AND IT SPECIFICALLY, AT PARAGRAPH 7-11, REQUIRES
TECHNICIANS TO "MAINTAIN THE SAME STANDARDS OF DRESS AND APPEARANCE WHEN
WEARING THE UNIFORM AS PRESCRIBED FOR ACTIVE DUTY PERSONNEL IN PARAGRAPH
1-12 * * * ." PARAGRAPH 1-12 SETS FORTH THE CRITERIA OF ACCEPTABLE
GROOMING.
FROM THIS I CONCLUDE THAT PERSONAL GROOMING IS AN INTEGRAL PART OF
THE PHRASE "WEARING OF THE UNIFORM" AND THAT THE ENTIRE SUBJECT WAS
EXCLUDED FROM CONTRACT NEGOTIATIONS PENDING A RESOLUTION OF ITS
NEGOTIABILITY. IN ARMY AND AIR FORCE EXCHANGE SERVICE, KEESLER
CONSOLIDATED EXCHANGE, A/SLMR NO. 144, THE ASSISTANT SECRETARY HELD THAT
SEC. 11(C) OF THE ORDER PROVIDES THE EXCLUSIVE METHOD FOR RESOLVING SUCH
A DISPUTE. THUS, IT WAS INCUMBENT UPON THE UNION IF IT DESIRED CHANGES
IN GROOMING STANDARDS TO REQUEST A DETERMINATION OF THE NEGOTIABILITY OF
THE REGULATIONS FROM THE HEAD OF THE AGENCY, AND IF UNSUCCESSFUL AT THAT
LEVEL, TO APPEAL TO THE FEDERAL LABOR RELATIONS COUNCIL. IT DID NOT
INVOKE THAT EXCLUSIVE METHOD, BUT BROUGHT ITS COMPLAINT TO THIS, AN
INAPPROPRIATE FORUM. I CONCLUDE THAT, AS THE ASSISTANT SECRETARY IS
WITHOUT AUTHORITY TO RESOLVE THE ISSUE OF NEGOTIABILITY, NO BARGAINING
OBLIGATION CAN BE FOUND TO EXIST WITH RESPECT TO THE SUBJECT. IT
FOLLOWS THAT RESPONDENT WAS FREE TO ALTER IT'S POLICY UNILATERALLY UNTIL
SUCH TIME AS THE HEAD OF THE AGENCY OR THE COUNCIL HELD THE SUBJECT TO
BE NEGOTIABLE. ACCORDINGLY, I FIND THAT RESPONDENT'S CONDUCT IN
CHANGING ITS ENFORCEMENT OF GROOMING STANDARDS WAS NOT VIOLATIVE OF SEC.
19(A)(1) AND (6) OF THE ORDER.
IN VIEW OF THE FINDINGS AND CONCLUSIONS MADE ABOVE, I RECOMMEND THAT
THE ASSISTANT SECRETARY DISMISS THE COMPLAINT IN ITS ENTIRETY.
DATED AT WASHINGTON, D.C., THIS 12TH DAY OF OCTOBER 1973.
JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
/1/ BRIEFS WERE DUE 21 DAYS AFTER RECEIPT OF TRANSCRIPT, WHICH WAS
FILED AS PART OF THE RECORD ON FEBRUARY 26. NFFE'S BRIEF WAS MAILED ON
MARCH 15 AND RECEIVED ON MARCH 20. BECAUSE OF CONFUSION OVER WHETHER AN
ORDER WAS PROPERLY PLACED, RESPONDENT DID NOT RECEIVE A COPY OF THE
TRANSCRIPT UNTIL MAY 31, AND ITS BRIEF WAS MAILED ON JUNE 20 AND
RECEIVED ON JULY 9. NFFE'S MOTION OF MAY 30, THAT THE CASE BE DECIDED
ON THE RECORD WHICH EXISTED AT THAT TIME, IS, IN THE CIRCUMSTANCES,
DENIED.
/2/ THUS THE RECORD IS REPLETE WITH REFERENCES TO THE EXPERIENCE OF
NONCOMPLYING TECHNICIANS THAT THEY WOULD BE ORALLY REMINDED OF THE NEED
FOR A HAIRCUT A DAY OR TWO BEFORE THE WEEKEND DRILL. SOME THOUGHT,
PERHAPS FOR THIS REASON, THAT THE STANDARD APPLIED ONLY WHILE IN
MILITARY STATUS. RESPONDENT'S ANSWER IS THAT AS THE TECHNICIANS
ORDINARILY GOT THEIR HAIRCUTS SHORTLY BEFORE DRILL TIME, NATURE PROVIDED
NO OCCASION FOR A WARNING UNTIL SHORTLY BEFORE THE NEXT MONTHLY DRILL.
/3/ SINCE 1969 RESPONDENT HAS USED FORM 7B, AN EMPLOYEE RECORD CARD.
IN ADDITION TO PERSONAL DATA AND EMPLOYMENT HISTORY, THE CARD WAS
DESIGNED FOR ENTRY OF NOTES BY THE SUPERVISOR RESPECTING PERFORMANCE,
OCCASIONS FOR PRAISE, WARNING OR DISCIPLINE, RESULTS OF COUNSELLING
SESSIONS, ETC. ANY ADVERSE ACTION RECOMMENDED HAD TO BE CLEARED THROUGH
COLONEL THOMPSON, WHO TESTIFIED THAT HE HAS NEVER SEEN ADVERSE ACTION
TAKEN ON THE BASIS OF AN ENTRY ON A FORM 7B RELATING TO PERSONAL
GROOMING, BEFORE OR SINCE JUNE 20, 1972. AFTER THE HEARING
COMPLAINANT'S COUNSEL MOVED THE INTRODUCTION OF TWO EXHIBITS PURPORTING
TO SHOW: (1) THAT AN ENTRY WAS MADE ON THE FORM 7B OF WARREN WILSON,
RECORDING THE COUNSELLING HE RECEIVED FROM HIS SUPERVISOR CONCERNING
LENGTH OF SIDEBURNS ON OCTOBER 24, 1972, AND (2) THAT TERRY KAWCHECK WAS
DENIED A PROMOTION BECAUSE HIS HAIR WAS TOO LONG ON SEPTEMBER 23, 1972.
I REJECT THESE EXHIBITS AS IRRELEVANT. THEY AND THE CORRESPONDENCE
ABOUT THEM ARE IN THE FORMAL FILE. ASSUMING BOTH EVENTS HAPPENED, THEY
OCCURRED AFTER RESPONDENT HAD FULLY SATISFIED ANY BARGAINING OBLIGATION
IT MAY HAVE HAD RESPECTING THE ENFORCEMENT OF GROOMING REGULATIONS. NOR
DO THEY CONTRADICT THE TESTIMONY OF RESPONDENT'S WITNESSES THAT NO
RECORD WAS KEPT OF THE TECHNICIANS IN NONCOMPLIANCE ON JUNE 23 AND THAT
NO ADVERSE ACTION HAS EVER BEEN TAKEN AS A RESULT OF A GROOMING NOTATION
ON FORM 7B. THERE IS NO EVIDENCE THAT MR. WILSON WAS DENIED A
PROMOTION.
4 A/SLMR 361; P. 170; CASE NO. 32-3269; FEBRUARY 28, 1974.
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, FOOD AND DRUG
ADMINISTRATION, NEWARK DISTRICT,
A/SLMR NO. 361 THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3445
(AFGE) SEEKING A UNIT OF ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES
OF THE NEWARK, NEW JERSEY DISTRICT, FOOD AND DRUG ADMINISTRATION,
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE. HOWEVER, CONTRARY TO THE
AFGE, THE ACTIVITY WOULD EXCLUDE CERTAIN JOB CLASSIFICATIONS ON THE
BASIS THAT THE EMPLOYEES IN SUCH CLASSIFICATIONS WERE EITHER MANAGEMENT
OFFICIALS OR SUPERVISORS.
THE ASSISTANT SECRETARY FOUND THAT THE CLAIMED UNIT WAS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS CONNECTION, HE NOTED
PARTICULARLY THE AGREEMENT OF THE PARTIES WITH RESPECT TO THE
APPROPRIATENESS OF THE CLAIMED UNIT, AS WELL AS THE FACTS THAT THE UNIT
INCLUDES ALL OF THE EMPLOYEES WITHIN THE DISTRICT OFFICE, THAT THE
EMPLOYEES IN THE CLAIMED UNIT SHARE A COMMON MISSION AND FACILITIES,
THAT THEY ARE ALL UNDER THE SAME SUPERVISION AND DIRECTION OF THE SAME
DEPUTY REGIONAL FOOD AND DRUG DIRECTOR, AND THEY ARE SUBJECT TO THE SAME
PERSONNEL AND LABOR RELATIONS POLICIES. UNDER THESE CIRCUMSTANCES, HE
FOUND THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG
THE EMPLOYEES IN THE CLAIMED UNIT AND THAT SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY,
THE ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE UNIT FOUND
APPROPRIATE.
DETERMINATIONS ALSO WERE MADE BY THE ASSISTANT SECRETARY AS TO THE
SUPERVISORY AND/OR MANAGERIAL STATUS OF EMPLOYEES IN CERTAIN DISPUTED
JOB CLASSIFICATIONS. FURTHER, IN THE ABSENCE OF CONTRARY EVIDENCE, THE
ASSISTANT SECRETARY FOUND THAT THE PARTIES' AGREEMENTS CONCERNING
PROFESSIONAL AND CERTAIN EXCLUDED EMPLOYEES WERE PROPER.
DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE,
FOOD AND DRUG ADMINISTRATION,
NEWARK DISTRICT, NEWARK, NEW JERSEY /1/
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
LOCAL 3445
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER WILLIAM A. WARE.
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 SUBMITTED 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,
AFL-CIO, LOCAL 3445, HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE NEWARK, NEW JERSEY
DISTRICT, FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, 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 RECORD INDICATES THAT THE ACTIVITY AND THE AFGE ARE IN AGREEMENT
AS TO THE APPROPRIATENESS OF THE CLAIMED UNIT. THE ACTIVITY MAINTAINS,
HOWEVER, AND THE AFGE DISAGREES, THAT EMPLOYEES IN TWO CLASSIFICATIONS,
- CONSUMER SAFETY OFFICER, GS-12 AND GS-13, IN THE COMPLIANCE BRANCH AND
CONSUMER AFFAIRS OFFICERS, GS-11, - ARE INELIGIBLE FOR INCLUSION IN THE
UNIT SOUGHT, BECAUSE THE EMPLOYEES IN SUCH CLASSIFICATIONS ARE EITHER
MANAGEMENT OFFICIALS OR SUPERVISORS WITHIN THE MEANING OF THE ORDER.
THE UNIT
THE FOOD AND DRUG ADMINISTRATION (FDA), WHICH IS A COMPONENT OF THE
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW), ENFORCES THE FEDERAL
FOOD, DRUG AND COSMETIC ACT, AND RELATED STATUES AND REGULATIONS. IT
OPERATES UNDER THE DIRECTION OF THE COMMISSIONER OF FOODS AND DRUGS.
THE MANAGEMENT OF FDA FIELD OFFICES IS UNDER THE AUTHORITY OF THE
EXECUTIVE DIRECTOR OF REGIONAL OPERATIONS WHO IS ON THE COMMISSIONER'S
STAFF. THERE ARE TEN FDA REGIONAL OFFICES WITH EACH HAVING A REGIONAL
FOOD AND DRUG DIRECTOR WHO REPORTS DIRECTLY TO THE EXECUTIVE DIRECTOR OF
REGIONAL OPERATIONS. THE FDA REGIONAL OFFICES ARE SUBDIVIDED INTO 19
DISTRICTS WITH EACH DISTRICT OFFICE MANAGED BY A DEPUTY REGIONAL FOOD
AND DRUG DIRECTOR WHO REPORTS TO THE REGIONAL FOOD AND DRUG DIRECTOR OF
HIS RESPECTIVE REGION. ALTHOUGH NOT UNIFORM IN SIZE, JURISDICTIONAL
AREA, OR FUNCTIONAL RESPONSIBILITY, EACH DISTRICT OFFICE CONTAINS
COMPLIANCE, INVESTIGATIVE, AND ADMINISTRATIVE UNITS, WHICH HAVE
ESSENTIALLY THE SAME DUTIES AND RESPONSIBILITIES, REGARDLESS OF THE
DISTRICT IN WHICH THEY ARE LOCATED. THE DEPUTY REGIONAL FOOD AND DRUG
DIRECTOR IN EACH DISTRICT OFFICE IS CHARGED WITH THE RESPONSIBILITY OF
OBTAINING COMPLIANCE WITH THE LAWS AND REGULATIONS ENFORCED BY THE FDA,
INITIATING AND CONDUCTING INVESTIGATIONS AND INSPECTIONS, CONDUCTING
ADMINISTRATIVE HEARINGS ON ALLEGED VIOLATIONS, INITIATING APPROPRIATE
ENFORCEMENT ACTIONS AND RECOMMENDING LEGAL ACTION TO VARIOUS BUREAU
OFFICIALS AT THE HEADQUARTERS LEVEL, TO THE OFFICE OF GENERAL COUNSEL OF
THE HEW, OR TO THE RESPONSIBLE U.S. ATTORNEY. THESE FUNCTIONS ARE
ACCOMPLISHED THROUGH THE ACTIVITIES OF THE INSPECTION AND COMPLIANCE
BRANCHES OF THE DISTRICT.
THE ACTIVITY IN THE INSTANT CASE, THE NEWARK DISTRICT OFFICE, IS ONE
OF FOUR DISTRICT OFFICES WHICH COMPRISE FDA REGIONAL FIELD OFFICE II
HEADQUARTERED IN BROOKLYN, NEW YORK. ALTHOUGH THE RECORD INDICATES THAT
THE NEWARK DISTRICT OFFICE IS ORGANIZED ALONG THE SAME BASIC LINES AS
THE OTHER FDA DISTRICTS THROUGHOUT THE NATION, IT IS DISSIMILAR IN THAT
IT DOES NOT HAVE A LABORATORY BRANCH AS DO THE OTHER DISTRICTS.
THE RECORD INDICATES THAT ALL OF THE EMPLOYEES IN THE PETITIONED FOR
UNIT WORK IN THE SAME BUILDING, WITH THE EXCEPTION OF EMPLOYEES OF THE
INVESTIGATIVE BRANCH, WHO TEMPORARILY ARE LOCATED LESS THAN ONE MILE
AWAY BECAUSE OF THE LACK OF AVAILABLE SPACE.
BASED ON THE FOREGOING, AND NOTING PARTICULARLY THE AGREEMENT OF THE
PARTIES WITH RESPECT TO THE APPROPRIATENESS OF THE CLAIMED UNIT, I FIND
THAT THERE IS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AMONG THE
EMPLOYEES IN THE CLAIMED UNIT AND THAT SUCH A UNIT WILL PROMOTE
EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ALSO NOTED IN
REACHING THE FOREGOING CONCLUSION WERE THE FACTS THAT THE UNIT INCLUDES
ALL OF THE EMPLOYEES WITHIN THE DISTRICT OFFICE AND THAT THE EMPLOYEES
IN THE CLAIMED UNIT SHARE A COMMON MISSION AND FACILITIES, ARE ALL UNDER
THE SUPERVISION AND DIRECTION OF THE SAME DEPUTY REGIONAL FOOD AND DRUG
DIRECTOR, AND ARE SUBJECT TO THE SAME PERSONNEL AND LABOR RELATIONS
POLICIES. UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE CLAIMED
UNIT IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE
ORDER.
ELIGIBILITY ISSUES
AS STATED ABOVE, THE ACTIVITY CONTENDS, CONTRARY TO THE AFGE, THAT
TWO EMPLOYEE CLASSIFICATIONS SHOULD BE EXCLUDED FROM THE UNIT SOUGHT BY
THE AFGE BECAUSE EMPLOYEES IN THESE CLASSIFICATIONS ARE EITHER
MANAGEMENT OFFICIALS OR SUPERVISORS. THE CLASSIFICATIONS AT ISSUE
INVOLVE FOUR CONSUMER SAFETY OFFICERS, GS-12 AND GS-13, IN THE
COMPLIANCE BRANCH, AND TWO CONSUMER AFFAIRS OFFICERS, GS-11, ALSO IN THE
COMPLIANCE BRANCH.
CONSUMER SAFETY OFFICERS, GS-12 AND GS-13, IN THE COMPLIANCE BRANCH
/2/
THE ACTIVITY CONTENDS THAT THE CONSUMER SAFETY OFFICERS, GS-12 AND
GS-13, IN THE COMPLIANCE BRANCH SHOULD BE EXCLUDED FROM ANY UNIT FOUND
APPROPRIATE ON THE BASIS THAT DUTIES OF THE EMPLOYEES IN THESE POSITIONS
ARE SUPERVISORY AND/OR MANAGERIAL IN NATURE. THE RECORD INDICATES THAT
THESE CONSUMER SAFETY OFFICERS PERFORM JOB FUNCTIONS CONCERNED WITH
ENFORCING THE LAWS AND REGULATIONS WHICH PROTECT CONSUMERS FROM FOODS,
DRUGS, COSMETICS, FABRICS, TOYS, AND HOUSEHOLD PRODUCTS AND EQUIPMENT
THAT ARE IMPURE, UNWHOLESOME, INEFFECTIVE, IMPROPERLY LABELLED, OR
DANGEROUS. THEY APPLY SCIENTIFIC KNOWLEDGE TO PERFORM A VARIETY OF
FUNCTIONS INCLUDING: INSPECTING FOOD AND DRUG MANUFACTURING
ESTABLISHMENTS; INVESTIGATING COMPLAINTS OF VIOLATIONS AND INJURIES AND
ILLNESSES CAUSED BY REGULATED PRODUCTS; PLANNING AND DIRECTING
REGULATORY PROGRAMS; INITIATING ACTIONS AGAINST VIOLATORS AND
COORDINATING ACTIVITIES ASSOCIATED WITH THEIR PROSECUTION; DEVELOPING
INSPECTIONAL AND LABORATORY ANALYTICAL METHODS, PROCEDURES, AND
TECHNIQUES; AND ADVISING INDUSTRY, STATE AND LOCAL OFFICIALS, AND
CONSUMERS ON ENFORCEMENT POLICIES, METHODS, AND INTERPRETATION OF
REGULATIONS. THESE DUTIES ARE UNDERTAKEN PURSUANT TO THE DIRECTION AND
SUPERVISION OF THE COMPLIANCE BRANCH CHIEF AND HIS SUPERIORS. THE
RECORD INDICATES THAT ALTHOUGH THE CONSUMER SAFETY OFFICERS ATTEND
SUPERVISORY STAFF MEETINGS FOR THE PURPOSE OF REPORTING ON ACTIVITIES OF
THE PREVIOUS WEEK AND DISCUSSING FUTURE ACTIVITIES, THE CONSUMER SAFETY
OFFICERS' OPINIONS AT THESE MEETINGS ARE NOT SOLICITED WITH RESPECT TO
SHAPING POLICY OR TO FORMULATING RULES AND REGULATIONS.
THE RECORD INDICATES THAT AFTER NECESSARY INFORMATION IS OBTAINED BY
THE INSPECTION AND LABORATORY FACILITIES OF THE FDA AND REFERRED TO THE
CONSUMER SAFETY OFFICER, HE MAKES A DETERMINATION AS TO WHETHER A
VIOLATION HAS OCCURRED AND A DECISION AS TO WHAT FURTHER ACTION IS
REQUIRED. IF HE FEELS THAT A VIOLATION HAS OCCURRED, HE MAY SCHEDULE A
HEARING IN WHICH ALL PARTIES ARE PRESENT. THE PARTIES PRESENT THEIR
POSITIONS AND THE CONSUMER SAFETY OFFICER, IN THEIR PRESENCE, DICTATES A
SUMMARY OF THE PROCEEDINGS. BASED UPON THIS HEARING, AND WHETHER HE
FEELS THAT A VIOLATION OF THE FOOD AND DRUG LAWS HAS OCCURRED, HE MEETS
WITH HIS SUPERVISORS /3/ TO DECIDE WHETHER ANY ACTION SHOULD BE TAKEN
AGAINST THE ALLEGED VIOLATOR, INCLUDING PROSECUTION BY THE U.S.
ATTORNEY, REVIEW BY THE HEW GENERAL COUNSEL, OR OTHER REVIEW BY AGENCY
HEADQUARTERS. OTHER ACTION MAY INVOLVE FURTHER INSPECTION, WARNING
LETTERS, THE INSTITUTION OF CIVIL PROCEEDINGS TO REMOVE THE PRODUCT, OR
ADMINISTRATIVE SANCTIONS. ALL OF THESE ACTIONS ARE TAKEN IN ACCORDANCE
WITH THE FDA GUIDELINES WHICH DETAIL THE RESPONSIBILITY OF CONSUMER
SAFETY OFFICERS.
THE ACTIVITY ALLEGES THAT BECAUSE OF THE DELEGATION OF AUTHORITY AND
RESPONSIBILITY FOR THE ESTABLISHMENT OF DISTRICT REGULATORY POLICY FROM
THE DEPUTY REGIONAL FOOD AND DRUG DIRECTOR TO THE CONSUMER SAFETY
OFFICERS, SUCH OFFICERS ARE MANAGERIAL EMPLOYEES. THE RECORD REFLECTS,
HOWEVER, THAT THE CONSUMER SAFETY OFFICERS DO NOT HAVE DIRECT ACCESS TO
THE DEPUTY REGIONAL FOOD AND DRUG DIRECTOR BUT, RATHER, THEY REPORT
DIRECTLY TO THEIR COMPLIANCE BRANCH CHIEF WHO IS A GS-14 EMPLOYEE. THE
RECORD REVEALS ALSO THAT THE CONSUMER SAFETY OFFICERS BASICALLY REVIEW
WORK SUBMITTED BY INSPECTION AND LABORATORY BRANCHES FOR SOUNDNESS AND
TECHNICAL CONTENT IN ACCORDANCE WITH REQUIREMENTS ESTABLISHED BY FDA
HEADQUARTERS AND IN ACCORDANCE WITH ESTABLISHED ADMINISTRATIVE
GUIDELINES. THESE GUIDELINES ARE SPECIFIC PRONOUNCEMENTS OF AGENCY
POLICY BASED UPON PRECEDENT CASES AND INTERPRETATIONS OF LAW TO
DETERMINE THE EXTENT OF THE REGULATORY ACTION PERMISSIBLE. WHERE NO
GUIDELINES EXIST, THE CONSUMER SAFETY OFFICER MUST SUBMIT HIS RELEVANT
FINDINGS TO HEADQUARTERS FOR REVIEW AND EVALUATION. THUS, ALL ACTIONS
OF A REGULATORY NATURE WHICH ARE ENGAGED IN BY THE CONSUMER SAFETY
OFFICERS ARE MERELY RECOMMENDATIONS. FURTHER, ANY ACTIONS WHICH MAY BE
INITIATED BY THE CONSUMER SAFETY OFFICERS ARE ONLY BY WAY OF
RECOMMENDATION AND MUST BE CLEARED WITH AND CONCURRED IN BY HIS
COMPLIANCE BRANCH CHIEF AND THE DEPUTY REGIONAL FOOD AND DRUG DIRECTOR.
IT HAS BEEN HELD PREVIOUSLY THAT A MANAGEMENT OFFICIAL IS AN EMPLOYEE
"HAVING AUTHORITY TO MAKE, OR TO INFLUENCE EFFECTIVELY THE MAKING OF,
POLICY NECESSARY TO THE AGENCY-- WITH RESPECT TO PERSONNEL, PROCEDURES,
OR PROGRAMS," AND THAT IN DETERMINING WHETHER AN INDIVIDUAL MEETS THIS
REQUIREMENT CONSIDERATION SHOULD BE GIVEN TO "WHETHER HIS ROLE IS THAT
OF AN EXPERT OR PROFESSIONAL RENDERING RESOURCE INFORMATION OR
RECOMMENDATIONS-- OR WHETHER HIS ROLE EXTENDS BEYOND THIS TO THE POINT
OF ACTIVE PARTICIPATION IN THE ULTIMATE DETERMINATION AS TO WHAT THAT
POLICY, IN FACT, WILL BE." /4/ IN MY VIEW, THE RECORD IN THE INSTANT
CASE DOES NOT ESTABLISH THAT THE ROLE OF THE CONSUMER SAFETY OFFICERS
EXTENDS BEYOND THAT OF A RESOURCE PERSON. THUS, THE RECORD REFLECTS
THAT THE CONSUMER SAFETY OFFICERS ARE ENGAGED ESSENTIALLY IN ENFORCING
ESTABLISHED POLICY WITHIN CONTROLLED AGENCY AGENCY GUIDELINES, RATHER
THAN PARTICIPATING IN THE DETERMINATION OF WHAT THAT POLICY, IN FACT,
SHOULD BE. ACCORDINGLY, I FIND THAT SUCH EMPLOYEES SHOULD NOT BE
EXCLUDED FROM THE UNIT ON THE BASIS THAT THEY ARE MANAGEMENT OFFICIALS.
THE ACTIVITY CONTENDS ALSO THAT THESE EMPLOYEES ARE SUPERVISORS
WITHIN THE MEANING OF THE ORDER AND SHOULD, FOR THIS REASON BE EXCLUDED
FROM ANY UNIT FOUND APPROPRIATE. IN THIS CONNECTION, THE RECORD
ESTABLISHES THAT CERTAIN CLERK-STENOGRAPHERS, GS-4 AND GS-5, ARE
ASSIGNED TO WORK FOR THE CONSUMER SAFETY OFFICERS. ALTHOUGH THE
CONSUMER SAFETY OFFICERS DO NOT HAVE AUTHORITY TO HIRE, DISCHARGE,
REWARD OR DISCIPLINE THESE CLERK-STENOGRAPHERS, THE EVIDENCE ESTABLISHES
THAT THEY HAVE THE AUTHORITY TO APPROVE SICK AND ANNUAL LEAVE FOR SUCH
EMPLOYEES. FURTHER, THE EVIDENCE INDICATES THAT THEY ARE RESPONSIBLE
FOR PREPARING THE OFFICIAL PERFORMANCE RATING FORMS FOR THE
CLERK-STENOGRAPHERS. IN THIS LATTER REGARD, THE RECORD REVEALS THAT
THESE FORMS CONSIST OF TWENTY CATEGORIES OF INFORMATION SOUGHT WITH
RESPECT TO THE PARTICULAR EMPLOYEE INVOLVED, AND THAT EACH CATEGORY HAS
FIVE SUB-RATINGS. THE RATING FORM ALSO PROVIDES FOR WRITTEN COMMENTS ON
THE PERFORMANCE OF THE EMPLOYEES INVOLVED, AND REQUIRES THAT THE
EMPLOYEES DISCUSS THE RATING FORMS WITH THE RATING OFFICER,-- I.E., THE
PARTICULAR CONSUMER SAFETY OFFICER,-- BEFORE THE APPRAISAL IS FORWARDED
TO THE COMPLIANCE BRANCH CHIEF FOR APPROVAL. THE EVIDENCE INDICATES
THAT THESE DETAILED EVALUATIONS HAVE NEVER BEEN COUNTERMANDED BY HIGHER
AUTHORITY, NOR DISAGREE WITH.
BASED ON THE FOREGOING, I FIND THAT THE EVIDENCE IS SUFFICIENT TO
ESTABLISH THAT THE CONSUMER SAFETY OFFICERS EFFECTIVELY EVALUATE THE
PERFORMANCE OF THE CLERK-STENOGRAPHERS AND THAT THE EXERCISE OF THIS
AUTHORITY IS NOT OF A MERELY ROUTINE OR CLERICAL NATURE BUT, RATHER,
REQUIRES THE USE OF INDEPENDENT JUDGMENT. ACCORDINGLY, CONSISTENT WITH
THE DECISIONS OF THE FEDERAL LABOR RELATIONS COUNCIL IN UNITED STATES
NAVAL WEAPONS CENTER, CHINA LAKE, CALIFORNIA, FLRC NO. 72A-11 AND MARE
ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA, FLRC NO. 72A-12, I CONCLUDE
THAT THE CONSUMER SAFETY OFFICERS, GS-13 AND GS-12, IN THE COMPLIANCE
BRANCH ARE SUPERVISORS WITHIN THE MEANING OF THE ORDER AND, THEREFORE,
THIS CLASSIFICATION SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
CONSUMER AFFAIRS OFFICERS, GS-11
THE ACTIVITY CONTENDS THAT THE TWO INCUMBENTS IN THE ABOVE
CLASSIFICATION SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE ON THE
BASIS THAT THEY ARE MANAGEMENT OFFICIALS. CONSUMER AFFAIRS OFFICERS ARE
RESPONSIBLE FOR CONSUMER INFORMATION AND EDUCATION PROGRAMS FOR THE
ACTIVITY. THEIR JOB FUNCTIONS INCLUDE PARTICIPATION IN VARIOUS TYPES OF
CONSUMER EDUCATION PROGRAMS AND WORKING WITH VARIOUS MEDIA, INCLUDING
RADIO, TELEVISION, AND NEWSPAPERS, IN ORDER TO GET THE FDA INFORMATIONAL
MESSAGES TO THE PUBLIC.
THE ACTIVITY CONTENDS THAT THE NATURE OF THE CONSUMER AFFAIRS
OFFICERS' JOB IS SUCH THAT THEY INFLUENCE AND HELP TO DEVELOP POLICY OF
THE FDA WITH RESPECT TO VARIOUS PROGRAMS. IT MAINTAINS THAT BECAUSE THE
OFFICERS ARE DIRECTLY IN CONTACT WITH THE PUBLIC AND THEY REPRESENT THE
DIRECTOR OF THE FDA IN THE DISTRICT INVOLVED, THEIR VIEWS ARE, IN
EFFECT, THE FDA'S VIEWS AND, AS SUCH, THEY ARE PROMULGATING POLICY.
UNDER THESE CIRCUMSTANCES, THE ACTIVITY CONTENDS THAT THE CONSUMER
AFFAIRS OFFICER'S JOB IS MANAGERIAL IN NATURE, AND, THEREFORE, THIS
CLASSIFICATION SHOULD BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE. THE
AFGE CONTENDS, ON THE OTHER HAND, THAT SUCH OFFICERS IN NO WAY INFLUENCE
OR MAKE POLICY BECAUSE THEY MERELY CARRY OUT POLICY SET AT A HIGHER
LEVEL. IN THIS CONNECTION, IT ASSERTS THAT THE CONSUMER AFFAIRS
OFFICERS ARE REQUIRED TO SUBMIT THEIR PROGRAM PLANS FOR APPROVAL BY
HIGHER SUPERVISION ONE MONTH IN ADVANCE.
THE EVIDENCE ESTABLISHES THAT THE CONSUMER AFFAIRS OFFICERS WORK
WITHIN STRICTLY PRESCRIBED GUIDELINES. THUS, IN PROGRAM MATTERS HIGHER
HEADQUARTERS GENERALLY PROVIDES THE OFFICERS WITH THE OBJECTIVES AND THE
MATERIALS WHICH THEY REQUIRE AND SPECIFIES THE ROLES THAT THEY MAY TAKE
IN FULFILLING THE OBJECTIVES. IN ADDITION, THEY WORK UNDER THE DIRECT
AUTHORITY OF, AND ARE ACTIVELY SUPERVISED BY, THEIR COMPLIANCE BRANCH
CHIEF WHO APPROVES THEIR WORK PLANS. HEADQUARTERS ALSO PROVIDES GENERAL
GUIDELINES ON THE TYPES OF AUDIENCES TO WHOM THEY MAY SPEAK AND,
ALTHOUGH THESE OFFICERS ATTEND STAFF MEETINGS HELD BY THE DEPUTY
REGIONAL FOOD AND DRUG DIRECTOR, THEIR VIEWS ARE SOLICITED ONLY WITH
RESPECT TO ASPECTS OF CONSUMER AFFAIRS WITHIN THEIR AREAS OF
RESPONSIBILITY. THERE IS NO EVIDENCE THAT THEY, IN ANY WAY, MAKE
DISTRICT POLICY; RATHER, THE EVIDENCE ESTABLISHES THAT THEIR WORK IS
DICTATED STRICTLY BY GUIDELINES PROVIDED THEM.
BASED ON THE FOREGOING, I FIND THAT THE JOB FUNCTIONS OF THE CONSUMER
AFFAIRS OFFICERS, GS-11, REFLECT THAT THEY ESSENTIALLY APPLY, IMPLEMENT
AND MAKE RECOMMENDATIONS WITH RESPECT TO ESTABLISHED POLICY, AS
DISTINGUISHED FROM EMPLOYEES WHO ACTIVELY PARTICIPATE IN THE ULTIMATE
DETERMINATION AS TO WHAT A POLICY WOULD BE. /5/ ACCORDINGLY, I FIND
THAT THESE EMPLOYEES ARE NOT MANAGEMENT OFFICIALS WITHIN THE MEANING OF
THE ORDER AND, THEREFORE, THIS CLASSIFICATION SHOULD BE INCLUDED IN THE
UNIT FOUND APPROPRIATE.
BASED ON ALL THE FOREGOING CIRCUMSTANCES, I FIND THAT THE FOLLOWING
EMPLOYEES CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION WITHIN THE MEANING OF SECTION 10 OF THE EXECUTIVE ORDER
11491, AS AMENDED:
ALL PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES OF THE NEWARK, NEW
JERSEY DISTRICT, FOOD AND
DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
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. /6/
IT IS NOTED THAT 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 THE 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 THE UNIT
WITH NONPROFESSIONAL EMPLOYEES MUST BE ASCERTAINED. I SHALL, THEREFORE,
DIRECT SEPARATE ELECTIONS IN THE FOLLOWING VOTING GROUPS:
VOTING GROUP (A): ALL PROFESSIONAL EMPLOYEES OF THE NEWARK, NEW
JERSEY DISTRICT, FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, EXCLUDING 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 OF THE NEWARK, NEW
JERSEY DISTRICT, FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH,
EDUCATION AND WELFARE, 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.
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 3445.
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 THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCA 3445. IN THE EVENT THAT THE
MAJORITY OF THE VALID VOTES OF VOTING GROUP (A) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS THE 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 INDICATING WHETHER OR NOT
THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3445,
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 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 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 NEWARK, NEW
JERSEY DISTRICT, FOOD AND
DRUG ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
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.
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 CONSTITUTE SEPARATE UNITS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION WITHIN THE MEANING
OF SECTION 10 OF THE ORDER:
(A) ALL NONPROFESSIONAL EMPLOYEES OF THE NEWARK, NEW JERSEY DISTRICT,
FOOD AND DRUG
ADMINISTRATION, DEPARTMENT OF HEALTH EDUCATION AND WELFARE, 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.
(B) ALL PROFESSIONAL EMPLOYEES OF THE NEWARK, NEW JERSEY DISTRICT,
FOOD AND DRUG
ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE,
EXCLUDING 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.
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 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 WHO 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 3445.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ THE NAME OF THE ACTIVITY APPEARS AS CORRECTED AT THE HEARING.
/2/ THE PARTIES STIPULATED THAT INCUMBENTS IN THESE CLASSIFICATIONS
ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE ORDER, AND THERE IS
NO EVIDENCE IN THE RECORD TO INDICATE TO THE CONTRARY.
/3/ THE CONSUMER SAFETY OFFICERS ARE REQUIRED TO MEET WITH THE
COMPLIANCE BRANCH CHIEF AND THE DEPUTY REGIONAL FOOD AND DRUG DIRECTOR
TO DECIDE ON AN APPROPRIATE COURSE OF ACTION AFTER A HEARING IS HELD.
/4/ DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
A/SLMR NO. 135.
/5/ SEE DEPARTMENT OF THE AIR FORCE, ARNOLD ENGINEERING DEVELOPMENT
CENTER, AIR FORCE SYSTEMS COMMAND, ARNOLD AIR FORCE STATION, TENNESSEE,
CITED ABOVE.
/6/ THE PARTIES STIPULATED THAT THE FOLLOWING CLASSIFICATIONS SHOULD
BE EXCLUDED FROM ANY UNIT FOUND APPROPRIATE BECAUSE THE EMPLOYEES IN
THESE CLASSIFICATIONS WERE MANAGEMENT OFFICIALS, SUPERVISORS, OR
CONFIDENTIAL EMPLOYEES-- DEPUTY REGIONAL FOOD AND DRUG DIRECTOR, JOB
CLASSIFICATION GS-696; ADMINISTRATIVE OFFICER AND ADMINISTRATIVE
ASSISTANT, JOB CLASSIFICATION GS-341; EAM PROJECT PLANNER, JOB
CLASSIFICATION GS-362; SUPERVISOR CONSUMER SAFETY OFFICER, JOB
CLASSIFICATION GS-696; SECRETARY TO THE CHIEF OF INVESTIGATIONS, JOB
CLASSIFICATION GS-316; CLERK, DICTATING MACHINE TRANSCRIBER, SECRETARY
TO THE ADMINISTRATIVE OFFICER, JOB CLASSIFICATION GS-316; SECRETARY TO
THE DEPUTY REGIONAL FOOD AND DRUG DIRECTOR, JOB CLASSIFICATION GS-318.
AS INDICATED ABOVE, THE PARTIES ALSO STIPULATED THAT THE INCUMBENTS IN
THE JOB CLASSIFICATION OF CONSUMER SAFETY OFFICER, JOB CLASSIFICATION
GS-696, ARE PROFESSIONAL EMPLOYEES AS DEFINED BY THE ORDER. IN THE
ABSENCE OF CONTRARY EVIDENCE, I FIND THAT THE PARTIES' AGREEMENT
CONCERNING THE ABOVE CLASSIFICATIONS WAS PROPER.
4 A/SLMR 360; P. 163; CASE NO. 22-4027(CA); FEBRUARY 28, 1974.
DEFENSE SUPPLY AGENCY,
DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND,
ABERDEEN, MARYLAND
A/SLMR NO. 360
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY LOCAL LODGE 2424, INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO (COMPLAINANT). THE COMPLAINANT ALLEGED
THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2), (5), AND (6) OF THE
ORDER BY REFUSING TO RECOGNIZE THE COMPLAINANT OR TO APPLY THE TERMS OF
AN EXISTING NEGOTIATED AGREEMENT WHICH INCLUDED IN ITS COVERAGE CERTAIN
EMPLOYEES OF THE PROPERTY DISPOSAL OPERATIONS AT THE ABERDEEN PROVING
GROUND, WHO WERE TRANSFERRED FROM THE DEPARTMENT OF THE ARMY TO THE
DEFENSE PROPERTY DISPOSAL SERVICE (DPDS) OF THE DEFENSE SUPPLY AGENCY
(DSA), PURSUANT TO A DEPARTMENT DEFENSE REORGANIZATION. THE COMPLAINT
FURTHER ALLEGED THAT THE RESPONDENT IMPROPERLY THREATENED TO REVOKE DUES
WITHHOLDING AUTHORIZATIONS FOR THE TRANSFERRED EMPLOYEES. THE CASE WAS
TRANSFERRED TO THE ASSISTANT SECRETARY PURSUANT TO SECTION 206.5(A) OF
THE ASSISTANT SECRETARY'S REGULATIONS AFTER THE PARTIES HAD SUBMITTED A
STIPULATION OF FACTS AND EXHIBITS TO THE ASSISTANT REGIONAL DIRECTOR FOR
LABOR-MANAGEMENT SERVICES.
THE RESPONDENT TOOK THE POSITION THAT THE COMPLAINANT SHOULD NOT BE
PERMITTED TO GAIN CERTIFICATION AND RECOGNITION AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ANY BARGAINING UNIT WITHOUT FILING A
REPRESENTATION PETITION AND WINNING AN ELECTION. FURTHER, IT CONTENDED
THAT HOPELESS FRAGMENTATION OF DPDS UNITS WOULD RESULT FROM THE FINDING
OF A VIOLATION IN THE INSTANT CASE.
RELYING ON THE DECISION ON APPEAL OF THE FEDERAL LABOR RELATIONS
COUNCIL (COUNCIL) IN HEADQUARTERS, UNITED STATES ARMY AVIATION SYSTEMS
COMMAND, FLRC NO. 72A-30, THE RESPONDENT URGED THAT IT SHOULD NOT BE
PLACED IN THE DILEMNA OF ASSUMING THE RISK OF VIOLATING SECTION 19(A)(3)
OR (6) DURING THE PERIOD IN WHICH AN UNDERLYING REPRESENTATION ISSUE IS
PENDING BEFORE THE ASSISTANT SECRETARY. THE ASSISTANT SECRETARY, NOTING
THAT NEITHER THE DSA NOR ANY LABOR ORGANIZATION SOUGHT TO RAISE A
QUESTION CONCERNING REPRESENTATION BY FILING AN APPROPRIATE
REPRESENTATION PETITION PRIOR TO THE WITHDRAWAL OF RECOGNITION AND THE
THREAT TO TERMINATE DUES WITHHOLDING, FOUND THAT THE RATIONALE IN THE
COUNCIL'S DECISION DID NOT AFFORD A DEFENSE IN THE INSTANT MATTER.
THUS, THE ASSISTANT SECRETARY CONCLUDED THAT RESPONDENT DID NOT "AVAIL
ITSELF OF THE REPRESENTATION PROCEEDINGS OFFERED IN ORDER TO RESOLVE
LEGITIMATE QUESTIONS AS TO THE CORRECT BARGAINING UNIT" (AS STATED BY
THE COUNCIL) BUT, RATHER, UNILATERALLY TERMINATED RECOGNITION AND SET
ITS OWN RULES FOR HOW A NEW RECOGNITION COULD BE OBTAINED.
NOTING THAT FOLLOWING THE REORGANIZATION AND "TRANSFER-IN-PLACE" THE
15 WAGE GRADE EMPLOYEES INVOLVED WORKED UNDER THE SAME SUPERVISION,
RETAINED THEIR SAME JOB DESCRIPTIONS AND CLASSIFICATIONS, AND CONTINUED
TO WORK IN THE SAME GEOGRAPHICAL AREAS, PERFORMING THE SAME FUNCTIONS
AND JOB DUTIES THAT THEY HAD PERFORMED WHILE UNDER THE COMMAND OF THE
DEPARTMENT OF THE ARMY, PRIOR TO THE REORGANIZATION, THE ASSISTANT
SECRETARY FOUND THAT THE DPDO WAGE GRADE EMPLOYEES AT ABERDEEN CONTINUED
TO SHARE A COMMUNITY OF INTEREST WITH THE EMPLOYEES IN THE ACTIVITY-WIDE
WAGE GRADE UNIT AT ABERDEEN REPRESENTED BY COMPLAINANT AND, IN EFFECT,
REMAINED IN THE EXCLUSIVELY RECOGNIZED BARGAINING UNIT SUBSEQUENT TO
THEIR TRANSFER TO DPDS.
IN VIEW OF THE FACT THAT BOTH THE DEPARTMENT OF THE ARMY AND THE DSA
ARE COMPONENTS OF THE DEPARTMENT OF DEFENSE, WHICH WAS THE MOVING FORCE
IN TRANSFERRING THE RESPONSIBILITY FOR PROPERTY DISPOSAL FROM ONE OF ITS
COMPONENTS TO ANOTHER, THE ASSISTANT SECRETARY FOUND THAT DSA AND THE
DEPARTMENT OF THE ARMY WERE CO-EMPLOYERS VIS-A-VIS THE EXISTING UNIT AT
ABERDEEN REPRESENTED BY THE COMPLAINANT AND, AS CO-EMPLOYERS THE DSA AND
THE DEPARTMENT OF THE ARMY WERE RESPONSIBLE FOR MAINTAINING THE PRESENT
TERMS AND CONDITIONS OF EMPLOYMENT OF ALL EMPLOYEES IN THE UNIT,
INCLUDING THOSE CONTAINED IN THE EXISTING NEGOTIATED AGREEMENT.
BY WITHDRAWING RECOGNITION WITH REGARD TO THE DPDO EMPLOYEES AT
ABERDEEN WHERE AS A CO-EMPLOYER IT HAD THE OBLIGATION TO CONTINUE SUCH
RECOGNITION, THE ASSISTANT SECRETARY FOUND THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) AND (5) OF THE ORDER. MOREOVER, HE FOUND THAT THE
RESPONDENT'S ADMITTED THREAT TO TERMINATE DUES WITHHOLDING SIX MONTHS
AFTER THE DATE OF THE UNIT EMPLOYEES' TRANSFER TO THE DPDO, IF NO
REPRESENTATION PETITION WAS FILED, CONSTITUTED AN ADDITIONAL VIOLATION
OF SECTION 19(A)(1) OF THE ORDER.
UNDER THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND NO 19(A)(6)
VIOLATION BASED ON THE WITHDRAWAL OF RECOGNITION. HE ALSO FOUND THAT,
IN THE ABSENCE OF ANY EVIDENCE OF DISCRIMINATORY MOTIVATION, FURTHER
PROCEEDINGS UNDER SECTION 19(A)(2) WERE UNWARRANTED.
THE ASSISTANT SECRETARY, CONSIDERING THE BROAD SCOPE OF THE
REORGANIZATION HEREIN AFFECTING THE MAJOR COMPONENTS OF THE DEPARTMENT
OF DEFENSE AND ITS IMPLEMENTATION ON A NATIONWIDE BASIS BY THE DSA,
FOUND THAT A BROAD CEASE AND DESIST ORDER WAS NECESSARY IN ORDER TO
EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER. ACCORDINGLY, HE
ORDERED, AMONG OTHER THINGS, THAT THE DSA CEASE AND DESIST FROM REFUSING
TO ACCORD APPROPRIATE RECOGNITION TO THE COMPLAINANT OR OTHER SIMILARLY
SITUATED LABOR ORGANIZATIONS.
DEFENSE SUPPLY AGENCY,
DEFENSE PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND,
ABERDEEN, MARYLAND
AND
LOCAL LODGE 2424, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ACTING
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES EUGENE M.
LEVINE'S 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 COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
19(A)(1), (2), (5), AND (6) OF THE EXECUTIVE ORDER BY REFUSING TO
RECOGNIZE THE COMPLAINANT OR TO APPLY THE TERMS OF AN EXISTING
NEGOTIATED AGREEMENT WITH THE ABERDEEN PROVING GROUND, WHICH INCLUDED IN
ITS COVERAGE CERTAIN EMPLOYEES OF THE PROPERTY DISPOSAL OPERATIONS AT
THE ABERDEEN PROVING GROUND, WHO WERE TRANSFERRED TO THE RESPONDENT
PURSUANT TO A DEPARTMENT OF DEFENSE REORGANIZATION. THE COMPLAINT
FURTHER ALLEGES THAT THE RESPONDENT IMPROPERLY THREATENED TO REVOKE DUES
WITHHOLDING AUTHORIZATIONS FOR THE TRANSFERRED EMPLOYEES.
THE RESPONDENT TAKES THE POSITION THAT THE COMPLAINANT SHOULD NOT BE
PERMITTED TO GAIN CERTIFICATION AND RECOGNITION AS THE EXCLUSIVE
BARGAINING REPRESENTATIVE OF ANY BARGAINING UNIT WITHOUT FILING A
REPRESENTATION PETITION AND WINNING AN ELECTION. FURTHER, IT CONTENDS
THAT HOPELESS FRAGMENTATION OF DEFENSE PROPERTY DISPOSAL SERVICE, HEREIN
CALLED DPDS, UNITS WOULD RESULT FROM A FINDING BY THE ASSISTANT
SECRETARY THAT A VIOLATION OCCURRED IN THE INSTANT CASE. /1/
THE ABERDEEN PROVING GROUND IS A FIELD ACTIVITY OF THE DEPARTMENT OF
THE ARMY ENGAGED PRIMARILY IN THE TESTING AND EVALUATION OF ARMY
ORDNANCE (I.E., WEAPONS AND AMMUNITION). THE DEPARTMENT OF THE ARMY,
LIKE THE DEPARTMENT OF THE NAVY, DEPARTMENT OF THE AIR FORCE, AND THE
DEFENSE SUPPLY AGENCY, HEREIN CALLED DSA, IS A SEPARATE, CO-EQUAL
COMPONENT OF THE DEPARTMENT OF DEFENSE. ON JULY 29, 1970, THE
COMPLAINANT WAS CERTIFIED AS THE EXCLUSIVE BARGAINING REPRESENTATIVE IN
A UNIT OF ALL WAGE GRADE EMPLOYEES ASSIGNED TO THE ABERDEEN PROVING
GROUND COMMAND, ABERDEEN PROVING GROUND, MARYLAND. THE CERTIFIED UNIT
COVERED APPROXIMATELY 1,620 EMPLOYEES. THEREAFTER, ON AUGUST 9, 1972, A
TWO-YEAR AGREEMENT BETWEEN COMPLAINANT AND ABERDEEN PROVING GROUND
COMMAND COVERING THE ABOVE-DESCRIBED UNIT WAS EXECUTED.
ON AUGUST 16, 1972, THE ASSISTANT SECRETARY OF DEFENSE (INSTALLATION
AND LOGISTICS), AS A RESULT OF A STUDY WHICH HAD BEEN CONDUCTED, ADOPTED
RECOMMENDATIONS CONCERNING THE CREATION OF A NEW SPECIALIZED SERVICE
WITHIN THE DEPARTMENT OF DEFENSE HAVING THE SOLE RESPONSIBILITY FOR ALL
SURPLUS PERSONAL PROPERTY DISPOSAL FUNCTIONS FOR THE ENTIRE DEPARTMENT
OF DEFENSE. IN THIS REGARD, THE DIRECTOR OF THE DSA WAS AUTHORIZED TO
ESTABLISH SUCH A SERVICE. ACCORDINGLY, ON SEPTEMBER 11, 1972, THE DSA
ESTABLISHED THE DPDS TO PERFORM THE FUNCTIONS INVOLVED AND DIRECTED THAT
THE COMMANDER OF THE DPDS REPORT AND BE RESPONSIBLE TO THE DIRECTOR OF
THE DSA.
UNDER THE REORGANIZATION, THE HEADQUARTERS OF THE DPDS WAS
ESTABLISHED AT BATTLE CREEK, MICHIGAN. SUBORDINATE TO THE DPDS
HEADQUARTERS FIVE DEFENSE PROPERTY DISPOSAL REGIONS (DPDR'S) WERE
ESTABLISHED, THREE OF WHICH ARE IN THE CONTINENTAL UNITED STATES (CONUS)
/2/ AND TWO OVERSEAS, WITH APPROXIMATELY 7,000 DPDS EMPLOYEES EMPLOYED
WORLD-WIDE. WITHIN EACH DPDR A NUMBER OF DEFENSE PROPERTY DISPOSAL
OFFICES (DPDO'S) WERE ESTABLISHED. SPECIFICALLY, THERE ARE 168 SUCH
OFFICES IN CONUS, ONE OF WHICH, LOCATED AT ABERDEEN, CONSISTS OF 27
EMPLOYEES. /3/
ON OR ABOUT FEBRUARY 6, 1973, /4/ THE DSA WROTE TO THE NATIONAL
OFFICIALS OF ALL LABOR ORGANIZATIONS, INCLUDING THE COMPLAINANT,
REPRESENTING EMPLOYEES OF THE ARMY, NAVY, AIR FORCE, AND DSA (FIVE
DPDO'S ARE LOCATED AT PREVIOUSLY EXISTING DSA ACTIVITIES) WHO WERE TO BE
TRANSFERRED FROM THOSE EMPLOYING AGENCIES AND ACTIVITIES TO THE DPDS AND
PROVIDED THEM WITH ALL OF THE PERTINENT INFORMATION CONCERNING THE DPDS
WHICH WAS AVAILABLE AT THAT TIME. ACCORDING TO THE COMMUNICATION OF
FEBRUARY 6, THE TRANSFER WAS TO TAKE PLACE BY MOVING THE EMPLOYEES
CURRENTLY PERFORMING PROPERTY DISPOSAL FUNCTIONS FROM THEIR PRESENT
COMMANDS TO THE DSA. UNDER THIS "TRANSFER-IN-PLACE," EMPLOYEES WERE TO
CONTINUE THEIR EXISTING JOB ASSIGNMENTS AT THEIR PRESENT DUTY STATIONS
AND WERE TO PERFORM ESSENTIALLY THE SAME DUTIES, WITH NO SUBSTANTIVE
CHANGES IN JOB DESCRIPTIONS, CLASSIFICATIONS, OR GRADE.
ON MARCH 21, THE COMPLAINANT WROTE TO THE DSA STATING ITS POSITION
WITH RESPECT TO WHETHER THE EXISTING NEGOTIATED AGREEMENT BETWEEN IT AND
ABERDEEN CONTINUED IN EFFECT INSOFAR AS IT COVERED DPDS EMPLOYEES. THE
LETTER STATED, IN PART,
THE IAMAW WAS CERTIFIED FOR A BARGAINING UNIT OF PRODUCTION AND
MAINTENANCE EMPLOYEES UNDER
THE COMMAND OF THE ARMY. A PORTION OF THIS UNIT - SUPPLY FUNCTION -
WAS THEN TRANSFERRED TO
DEFENSE SUPPLY. AN ADDED FACTOR SHOULD BE TAKEN INTO CONSIDERATION
AND THAT IS THAT THE IAMAW
HAS A CONTRACT WITH THE ARMY COVERING ALL OF THE EMPLOYEES IN THE
UNIT. . . . THE FACT THAT A
PORTION OF THE UNIT WAS TRANSFERRED IS INSIGNIFICANT FOR IF THIS WERE
NOT TRUE, THE DEPARTMENT
OF DEFENSE COULD CIRCUMVENT EACH AND EVERY CERTIFICATION HELD BY EACH
AND EVERY UNION BY
MERELY TRANSFERRING COMMAND FROM THE ARMY TO THE NAVY, THE NAVY TO
DEFENSE SUPPLY, ETC., THE
IMPORTANT FACTOR BEING THAT THE WORK REMAINS INTACT WITH THE SAME
IDENTICAL SUPERVISION AND
SAME LOCATIONS.
THEREAFTER, ON OR ABOUT APRIL 18, DSA ADVISED ALL LABOR
ORGANIZATIONS, INCLUDING THE COMPLAINANT, WHICH HAD REPRESENTED THE
NEWLY ASSIGNED DPDS EMPLOYEES THAT "THE DUES WITHHOLDING PRIVILEGES OF
THOSE EMPLOYEES WOULD BE EXTENDED FOR A SIX-MONTH PERIOD . . . TO ALLOW
FOR THE RESOLUTION OF SUCH REPRESENTATION AND SUCCESSORSHIP ISSUES AS
MAY ARISE INCIDENT TO THIS REORGANIZATION." THE 15 WAGE GRADE EMPLOYEES
IN THE CERTIFIED UNIT WHO WERE PERFORMING THE PROPERTY DISPOSAL
FUNCTIONS AT THE ABERDEEN PROVING GROUND COMMAND WERE ADMINISTRATIVELY
TRANSFERRED TO THE DSA COMMAND ON APRIL 22. THE TRANSFERRED EMPLOYEES
CONTINUED TO WORK IN THE SAME GEOGRAPHICAL AREAS, UNDER THE SAME
SUPERVISION, AND PERFORMED THE SAME JOB FUNCTIONS AND DUTIES THAT THEY
HAD PERFORMED WHILE UNDER THE COMMAND OF THE ARMY.
ON APRIL 24 THE COMPLAINANT LOCAL'S PRESIDENT REQUESTED THAT THE DSA
CONTINUE THE WITHHOLDING OF DUES FOR THOSE EMPLOYEES WHO HAD VALID DUES
WITHHOLDING AUTHORIZATIONS IN EFFECT AT THE TIME OF THEIR TRANSFER. THE
DSA REPLIED ON MAY 8 STATING THAT, "THE CONTINUATION OF DUES WITHHOLDING
IS FOR A TEMPORARY PERIOD. IT WILL TERMINATE SIX MONTHS AFTER THE DATE
OF THE EMPLOYEES TRANSFER TO DPDS IF NO REPRESENTATION PETITION COVERING
THE EMPLOYEES IS FILED WITHIN THE SIX-MONTH PERIOD."
ON MAY 14 THE COMPLAINANT FILED AN UNFAIR LABOR PRACTICE CHARGE WITH
THE COMMANDER, DEFENSE COMMUNICATION SUPPLY CENTER, DEFENSE SUPPLY
AGENCY, COLUMBUS, OHIO, ALLEGING VIOLATIONS OF SECTION 19(A)(1), (2),
(5), AND (6) OF THE ORDER BASED ON A "REFUS(AL) TO APPLY THE TERMS AND
CONDITIONS OF THE COLLECTIVE BARGAINING AGREEMENT THAT WAS IN EFFECT (AT
ABERDEEN) COVERING THESE EMPLOYEES." THE DSA ISSUED ITS "FINAL DECISION"
ON THE MATTER ON JUNE 8, STATING THAT THE ABERDEEN AGREEMENT WAS BETWEEN
COMPLAINANT AND THE DEPARTMENT OF THE ARMY AND THAT:
WHEN THESE 28 (SIC) EMPLOYEES TRANSFERRED TO DPDS THEY CEASED TO BE
EMPLOYEES OF EITHER THE
ABERDEEN PROVING GROUND COMMAND OR THE DEPARTMENT OF THE ARMY. THEY
THEREBY ALSO CEASED, IN
THE JUDGMENT OF THIS AGENCY, TO BE MEMBERS OF THE BARGAINING UNIT. .
. . THE AGENCY STANDS
READY, AT ANY TIME, OF COURSE, TO RECOGNIZE ANY BARGAINING AGENT
CERTIFIED TO US BY THE
DEPARTMENT OF LABOR AS THE DULY ELECTED REPRESENTATIVE OF THE
EMPLOYEES OF DPDS OR OF ANY
APPROPRIATE BARGAINING UNIT MADE UP OF DPDS EMPLOYEES.
UPON RECEIPT OF THE "FINAL DECISION," THE COMPLAINANT, ON JUNE 15,
FILED THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT WHICH SUBSEQUENTLY WAS
AMENDED. FOLLOWING THE FILING OF THE INSTANT COMPLAINT, REPRESENTATION
PETITIONS WERE FILED BY TWO OTHER LABOR ORGANIZATIONS FOR UNITS
ENCOMPASSING THESE 15 EMPLOYEES. ONE OF THESE PETITIONS LATER WAS
WITHDRAWN AND REFILED; BOTH PETITIONS ARE PRESENTLY PENDING.
ALL OF THE FACTS AND POSITIONS SET FORTH ABOVE ARE DERIVED FROM THE
PARTIES' STIPULATION AND ACCOMPANYING EXHIBITS.
THE RESPONDENT CONTENDS THAT IT HAS "STRIVED TO RESOLVE THE ISSUES
WHICH HAVE INEVITABLY ARISEN WITH RESPECT TO THE DPDS REORGANIZATION,"
AND THAT THE INSTANT COMPLAINT SHOULD BE DISMISSED AND A REMEDY PURSUED
THROUGH REPRESENTATION PROCEDURES. RELYING ON THE DECISION ON APPEAL OF
THE FEDERAL LABOR RELATIONS COUNCIL (COUNCIL) IN HEADQUARTERS, UNITED
STATES ARMY AVIATION SYSTEMS COMMAND, FLRC NO. 72A-30, THE RESPONDENT
URGES THAT IT SHOULD NOT BE PLACED IN THE DILEMMA OF ASSUMING THE RISK
OF VIOLATING SECTION 19(A)(3) OR (6) DURING THE PERIOD IN WHICH AN
UNDERLYING REPRESENTATION ISSUE IS PENDING BEFORE THE ASSISTANT
SECRETARY. IT SHOULD BE NOTED, HOWEVER, THAT NEITHER THE RESPONDENT NOR
ANY LABOR ORGANIZATION SOUGHT TO RAISE A QUESTION CONCERNING
REPRESENTATION BY THE FILING OF AN APPROPRIATE REPRESENTATION PETITION
COVERING THE ABERDEEN DPDO EMPLOYEES PRIOR TO THE RESPONDENT'S STATEMENT
TO THE COMPLAINANT, ON MAY 8, THAT IT INTENDED TO TERMINATE DUES
WITHHOLDING IF NO REPRESENTATION PETITION WERE FORTHCOMING /5/ AND ITS
STATEMENT TO THE COMPLAINANT ON JUNE 8 THAT BASED ON THE ADMINISTRATIVE
TRANSFER TO DPDS THE ABERDEEN DPDO EMPLOYEES "CEASED . . . TO BE MEMBERS
OF THE BARGAINING UNIT. . . . " UNDER THESE CIRCUMSTANCES, I FIND THAT
THE RATIONALE SET FORTH IN THE COUNCIL'S DECISION IN HEADQUARTERS,
UNITED STATES ARMY AVIATION SYSTEMS COMMAND, CITED ABOVE, DOES NOT
AFFORD THE RESPONDENT A DEFENSE IN THIS MATTER. IN THAT DECISION THE
COUNCIL STATED, IN RELEVANT PART, THAT "WHERE AN AGENCY HAS ACTED IN
APPARENT GOOD FAITH AND AVAILED ITSELF OF THE REPRESENTATION PROCEEDINGS
OFFERED IN ORDER TO RESOLVE LEGITIMATE QUESTIONS AS TO THE CORRECT
BARGAINING UNIT, (EMPHASIS ADDED) AND WHERE NO OTHER EVIDENCE OF
MISCONDUCT IS INVOLVED, AN AGENCY SHOULD NOT BE FORCED TO ASSUME THE
RISK OF VIOLATING EITHER SECTION 19(A)(3) OR SECTION 19(A)(6) DURING THE
PERIOD IN WHICH THE UNDERLYING REPRESENTATION ISSUE IS STILL PENDING
BEFORE THE ASSISTANT SECRETARY." IN THE INSTANT CASE, IT IS CLEAR THAT
THE RESPONDENT DID NOT "AVAIL ITSELF OF THE REPRESENTATION PROCEEDINGS
OFFERED IN ORDER TO RESOLVE LEGITIMATE QUESTIONS AS TO THE CORRECT
BARGAINING UNIT" BUT, RATHER, IT UNILATERALLY TERMINATED RECOGNITION AND
SET ITS OWN RULES FOR HOW A NEW RECOGNITION WOULD BE OBTAINED.
AS TO THE ACTUAL EFFECT OF THE REORGANIZATION ON THE UNIT EMPLOYEES
AT ABERDEEN, THE PARTIES STIPULATED THAT PRIOR TO THE TRANSFER ON APRIL
22, THE 15 WAGE GRADE EMPLOYEES WHO PERFORMED PROPERTY DISPOSAL
FUNCTIONS AT THE ABERDEEN PROVING GROUND WERE PART OF AN ACTIVITY-WIDE
UNIT AT THE ABERDEEN PROVING GROUND COMMAND, ABERDEEN PROVING GROUND,
MARYLAND. FOLLOWING THE REORGANIZATION AND ADMINISTRATIVE
"TRANSFER-IN-PLACE" OF THESE EMPLOYEES INTO THE DPDO AT ABERDEEN,
MARYLAND, UNDER THE COMMAND OF DSA, THESE TRANSFERRED EMPLOYEES RETAINED
THEIR SAME JOB DESCRIPTIONS AND CLASSIFICATIONS, CONTINUED TO WORK IN
THE SAME GEOGRAPHICAL AREAS, AND PERFORMED THE SAME FUNCTIONS AND JOB
DUTIES THAT THEY HAD PERFORMED WHILE UNDER THE COMMAND OF THE ARMY PRIOR
TO THE REORGANIZATION. MOREOVER, THE IMMEDIATE SUPERVISION OF THESE
EMPLOYEES REMAINED THE SAME AS BEFORE THE REORGANIZATION, ALTHOUGH THE
CHIEF OF THE OFFICE NOW REPORTED UPWARD THROUGH THE DSA COMMAND, RATHER
THAN THROUGH THE ARMY COMMAND. UNDER THESE CIRCUMSTANCES, I FIND THAT
THE DPDO WAGE GRADE EMPLOYEES AT ABERDEEN CONTINUE TO SHARE A COMMUNITY
OF INTEREST WITH THE EMPLOYEES IN THE ACTIVITY-WIDE WAGE GRADE UNIT AT
THE ABERDEEN PROVING GROUND COMMAND REPRESENTED BY THE COMPLAINANT AND
HAVE, IN EFFECT, REMAINED IN THE EXCLUSIVELY RECOGNIZED BARGAINING UNIT
SUBSEQUENT TO THEIR ADMINISTRATIVE TRANSFER TO THE DPDS. /6/
IN ITS BRIEF, THE RESPONDENT CONTENDS THAT QUESTIONS RELATING TO
WHETHER DEPARTMENT OF DEFENSE COMPONENTS ARE SEPARATE EMPLOYING AGENCIES
ARE IRRELEVANT TO A DECISION IN THIS CASE. NEVERTHELESS, IT ASSERTS
THAT THE RESPONDENT HAS NO OBLIGATION TO RECOGNIZE THE COMPLAINANT
BECAUSE THE NEGOTIATED AGREEMENT CURRENTLY IN EXISTENCE HEREIN IS
BETWEEN THE COMPLAINANT AND THE DEPARTMENT OF THE ARMY. THE PARTIES
STIPULATED THAT BOTH THE DSA AND THE DEPARTMENT OF THE ARMY ARE
COMPONENTS OF THE DEPARTMENT OF DEFENSE, THAT THE DEPARTMENT OF DEFENSE
MADE THE DECISION TO REORGANIZE GIVING A SEPARATE RESPONSIBILITY TO THE
DSA FROM THAT WHICH EXISTED WHEN PROPERTY DISPOSAL FUNCTIONS WERE
CONTROLLED BY THE VARIOUS SERVICES, AND THAT THE REASONS FOR SUCH
REORGANIZATION WERE INTIMATELY CONNECTED WITH AND DETERMINED BY THE
DEPARTMENT OF DEFENSE AS PART OF AN EFFORT TO ACHIEVE AN EFFECTIVE
METHOD OF OPERATING THE PERSONAL PROPERTY DISPOSAL FUNCTIONS OF THE
MILITARY SERVICES.
I DO NOT VIEW AS DETERMINATIVE IN THIS MATTER THE FACT THAT THE
DEPARTMENT OF THE ARMY AND THE DSA ARE SEPARATE EMPLOYING AGENCIES,
PARTICULARLY IN VIEW OF THE FACT THAT BOTH ARE COMPONENTS OF THE
DEPARTMENT OF DEFENSE WHICH WAS THE MOVING FORCE IN TRANSFERRING THE
RESPONSIBILITY FOR PROPERTY DISPOSAL FROM ONE OF ITS COMPONENTS TO
ANOTHER. IN MY JUDGMENT, WHERE, AS HERE, IT IS FOUND THAT THE
EXCLUSIVELY RECOGNIZED UNIT HAS REMAINED INTACT FOLLOWING A
REORGANIZATION AND ADMINISTRATIVE TRANSFER BY A PRESENT ORGANIZATION -
I.E., THE DEPARTMENT OF DEFENSE - ANY ADDITIONAL COMPONENT ORGANIZATIONS
WHICH HAVE BEEN ADDED AS EMPLOYING ENTITIES VIS-A-VIS THE EXISTING
EXCLUSIVELY RECOGNIZED UNIT, WOULD BE VIEWED TO BE CO-EMPLOYERS WITH
COMMON RESPONSIBILITIES FOR MAINTAINING THE PRESENT TERMS AND CONDITIONS
OF EMPLOYMENT FOR ALL EMPLOYEES IN THE UNIT INCLUDING ANY NEGOTIATED
AGREEMENT THAT IS IN EXISTENCE. WHILE IT IS RECOGNIZED THAT THERE ARE
DIFFERENCES IN THE SPECIFIC MISSIONS AND FUNCTIONS OF THE TWO COMPONENTS
OF THE DEPARTMENT OF DEFENSE INVOLVED IN THIS MATTER, SUCH DIFFERENCES,
IN MY VIEW, DO NOT OUTWEIGH THE FACTORS OUTLINED ABOVE CONCERNING THE
CONTINUED APPROPRIATENESS OF THE EXISTING BARGAINING UNIT AT ABERDEEN
REPRESENTED BY THE COMPLAINANT.
A BALANCE STRUCK IN ACCORDANCE WITH THE RESPONDENT'S POSITION WOULD,
IN MY VIEW, CREATE THE TYPE OF CHAOTIC LABOR-MANAGEMENT RELATIONS
SITUATION CURRENTLY ENCOUNTERED IN THE INSTANT CASE, AS WELL AS IN OTHER
LOCATIONS THROUGHOUT THE COUNTRY. /7/ THUS, THE RECORD REVEALS THAT AS
A RESULT OF AN ADMINISTRATIVE REORGANIZATION IN WHICH, FOR THE MOST
PART, THE EMPLOYEES INVOLVED HAVE HISTORICALLY BEEN INCLUDED IN
BARGAINING UNITS AND, AFTER THE REORGANIZATION CONTINUE TO PERFORM THE
SAME JOB FUNCTIONS, UNDER THE SAME SUPERVISION, AT THE SAME LOCATIONS, A
SUBSTANTIAL NUMBER OF REPRESENTATION PETITIONS APPEAR TO HAVE BEEN
FILED, BASED ON THE CONDITIONS SET FORTH BY THE RESPONDENT TO CONTINUE
DUES WITHHOLDING, SEEKING TO SEPARATE SUCH EMPLOYEES FROM THEIR EXISTING
BARGAINING UNITS. TO UPSET THESE EXISTING UNITS BASED SOLELY ON SUCH AN
ADMINISTRATIVE REORGANIZATION CLEARLY WOULD NOT HAVE THE DESIRED EFFECT
OF PROMOTING EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE RESPONDENT AND THE
DEPARTMENT OF THE ARMY ARE CO-EMPLOYERS VIS-A-VIS THE EXISTING UNIT AT
ABERDEEN REPRESENTED BY THE COMPLAINANT AND, AS SUCH, THE RESPONDENT AND
THE DEPARTMENT OF THE ARMY ARE RESPONSIBLE FOR MAINTAINING THE PRESENT
TERMS AND CONDITIONS OF EMPLOYMENT OF ALL EMPLOYEES IN THE UNIT
INCLUDING THOSE CONTAINED IN THE EXISTING NEGOTIATED AGREEMENT. /8/
SECTION 19(A)(5) OF THE ORDER PROVIDES THAT "AGENCY MANAGEMENT SHALL
NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION
QUALIFIED FOR SUCH RECOGNITION." AN INTEGRAL PART OF THE OBLIGATION TO
ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION QUALIFIED FOR
SUCH RECOGNITION IS THE OBLIGATION TO CONTINUE TO ACCORD SUCH
RECOGNITION AS LONG AS THE LABOR ORGANIZATION INVOLVED REMAINS QUALIFIED
UNDER THE PROVISIONS OF THE ORDER. IN VIEW OF THE ABOVE FINDING THAT
THE DPDO EMPLOYEES AT ABERDEEN CONTINUE TO REMAIN IN THE EXCLUSIVELY
RECOGNIZED UNIT, THE RESPONDENT, AS A CO-EMPLOYER OF THESE EMPLOYEES,
WAS OBLIGATED TO CONTINUE TO ACCORD RECOGNITION TO THE COMPLAINANT
INCLUDING THE OBLIGATION TO CONTINUE TO HONOR THE EXISTING NEGOTIATED
AGREEMENT BETWEEN THE COMPLAINANT AND THE DEPARTMENT OF THE ARMY, AS IT
PERTAINED TO THE DPDO EMPLOYEES. UNDER THESE CIRCUMSTANCES, I FIND THAT
THE RESPONDENT'S CONDUCT HEREIN CONSTITUTED AN IMPROPER WITHDRAWAL OF
RECOGNITION FROM THE COMPLAINANT IN DEROGATION OF ITS OBLIGATION "TO
ACCORD APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION QUALIFIED FOR
SUCH RECOGNITION" AND THEREBY CONSTITUTED A VIOLATION OF SECTION
19(A)(5) OF THE ORDER.
ALSO, I FIND THAT RESPONDENT'S CONDUCT HEREIN CONSTITUTED AN
INDEPENDENT VIOLATION OF SECTION 19(A)(1) OF THE ORDER. THUS, IT HAS
BEEN HELD PREVIOUSLY THAT THE RIGHT TO FORM, JOIN AND ASSIST A LABOR
ORGANIZATION AS PROVIDED FOR IN THE EXECUTIVE ORDER WOULD BE RENDERED
MEANINGLESS WHERE, AS HERE, AGENCY MANAGEMENT FAILS TO ACCORD
APPROPRIATE RECOGNITION TO A LABOR ORGANIZATION AND, WITH THAT ACTION,
NEGATES THE BENEFITS WHICH FLOW FROM THE SELECTION OF AN EXCLUSIVE
REPRESENTATIVE, E.G., A NEGOTIATED AGREEMENT. /9/ ACCORDINGLY, UNDER
THE CIRCUMSTANCES OF THIS CASE, I FIND THAT THE RESPONDENT'S CONDUCT
ALSO VIOLATED SECTION 19(A)(1) OF THE ORDER. MOREOVER, I FIND THAT THE
RESPONDENT'S ADMITTED THREAT TO TERMINATE DUES WITHHOLDING SIX MONTHS
AFTER THE DATE OF THE UNIT EMPLOYEES' ADMINISTRATIVE TRANSFER TO DPDS IF
NO REPRESENTATION PETITION WAS FILED CONSTITUTED AN ADDITIONAL VIOLATION
OF SECTION 19(A)(1) OF THE ORDER.
THE COMPLAINANT CONTENDS FURTHER THAT THE RESPONDENT VIOLATED SECTION
19(A)(2) AND (6) OF THE ORDER BY "REFUS(ING) TO RECOGNIZE THE IAM OR TO
APPLY THE AGREEMENT" AND "BY THREATENING TO DISCONTINUE DUES
DEDUCTIONS." IT HAS BEEN DETERMINED PREVIOUSLY UNDER SIMILAR
CIRCUMSTANCES THAT MATTERS RELATED TO AN IMPROPER REFUSAL TO ACCORD
APPROPRIATE REVOCATION OF DUES WITHHOLDING ARE INSEPARABLE FROM THE
THEORY OF VIOLATION DISCUSSED ABOVE WITH RESPECT TO THE 19(A)(5)
ALLEGATION AND THAT SECTION 19(A)(6) IS NOT APPLICABLE IN SUCH A
SITUATION. /10/ MOREOVER, HERE, AS IN A/SLMR NO. 106, THE APPROPRIATE
REMEDY, DISCUSSED BELOW, FOR THE RESPONDENT'S IMPROPER CONDUCT HEREIN
UNDER SECTION 19(A)(1) AND (5) OF THE ORDER REQUIRES A RETURN TO THE
STATUS QUO ANTE, WHICH NECESSARILY WOULD INCLUDE THE REINSTATEMENT OF
THE NEGOTIATED AGREEMENT AND ITS TERMS APPLICABLE TO DUES WITHHOLDING.
ACCORDINGLY, WHILE I FIND THAT UNDER THE CIRCUMSTANCES OF THIS CASE AND
FOR THE REASONS OUTLINED ABOVE, THE RESPONDENT'S CONDUCT HEREIN WAS
VIOLATIVE OF SECTION 19(A)(1) AND (5) OF THE ORDER, ITS CONDUCT WAS NOT
CONSIDERED TO BE VIOLATIVE OF SECTION 19(A)(6) OF THE ORDER. MOREOVER,
IN THE ABSENCE OF ANY EVIDENCE OF DISCRIMINATORY MOTIVATION, I FIND THAT
FURTHER PROCEEDINGS UNDER SECTION 19(A)(2) WERE UNWARRANTED. UNDER THE
CIRCUMSTANCES, I SHALL ORDER THAT THE SECTION 19(A)(2) AND (6)
ALLEGATIONS BE DISMISSED.
BY FAILING TO CONTINUE TO ACCORD APPROPRIATE RECOGNITION TO A LABOR
ORGANIZATION QUALIFIED FOR SUCH RECOGNITION AND ALSO FAILING TO CONTINUE
TO HONOR AN EXISTING NEGOTIATED AGREEMENT, THE RESPONDENT VIOLATED
SECTION 19(A)(5) OF EXECUTIVE ORDER 11491, AS AMENDED. BY SUCH CONDUCT,
AND ADDITIONALLY BY THREATENING TO REVOKE DUES WITHHOLDING
AUTHORIZATIONS, THE RESPONDENT INTERFERED WITH, RESTRAINED, OR COERCED
EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF
SECTION 19(A)(1).
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(A)(1) AND (5) 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 PURPOSES AND POLICIES OF THE ORDER. FURTHER, IN VIEW OF
THE BROAD SCOPE OF THE REORGANIZATION HEREIN AFFECTING THE MAJOR
COMPONENTS OF THE DEPARTMENT OF DEFENSE AND ITS IMPLEMENTATION ON A
NATIONWIDE BASIS BY THE DSA, AS DESCRIBED ABOVE, I FIND THAT A BROAD
CEASE AND DESIST ORDER IS WARRANTED 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 DEFENSE SUPPLY
AGENCY AND ITS DEFENSE PROPERTY DISPOSAL OFFICE, ABERDEEN PROVING GROUND
COMMAND, ABERDEEN, MARYLAND, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO ACCORD APPROPRIATE RECOGNITION TO LOCAL LODGE 2424,
INTERNATIONAL
ASSOCIATION OF MACHINIST AND AEROSPACE WORKERS, AFL-CIO, AND
SIMILARLY SITUATED LABOR
ORGANIZATIONS, AND REFUSING TO HONOR THE EXISTING NEGOTIATED
AGREEMENT WITH LOCAL LODGE 2424,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, AS IT PERTAINS TO THE
DEFENSE PROPERTY DISPOSAL OFFICE AT THE ABERDEEN PROVING GROUND, AND
EXISTING NEGOTIATED
AGREEMENTS OF SIMILARLY SITUATED LABOR ORGANIZATIONS AS THEY PERTAIN
TO OTHER DEFENSE PROPERTY
DISPOSAL OFFICE EMPLOYEES.
(B) INTERFERING WITH, RESTRAINING, OR COERCING UNIT EMPLOYEES OF THE
DEFENSE PROPERTY
DISPOSAL OFFICE AT THE ABERDEEN PROVING GROUND BY REFUSING TO ACCORD
APPROPRIATE RECOGNITION
TO THEIR EXCLUSIVE BARGAINING REPRESENTATIVE, LOCAL LODGE 2424,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO; BY REFUSING TO HONOR THE
EXISTING NEGOTIATED
AGREEMENT WITH THAT LABOR ORGANIZATIONS; AND BY THREATENING TO
CANCEL DUES WITHHOLDING
AUTHORIZATIONS EXECUTED IN THAT LABOR ORGANIZATION'S BEHALF.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
REPRESENTED BY LOCAL LODGE 2424, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS, AFL-CIO, AND SIMILARLY SITUATED LABOR ORGANIZATIONS 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 POLICIES OF THE ORDER:
(A) UPON REQUEST, ACCORD APPROPRIATE RECOGNITION TO LOCAL LODGE 2424,
INTERNATIONAL
ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, FOR ITS
EMPLOYEES, INCLUDING
ELIGIBLE EMPLOYEES OF THE DEFENSE PROPERTY DISPOSAL OFFICE, IN THE
FOLLOWING CERTIFIED UNIT:
ALL WAGE GRADE EMPLOYEES ASSIGNED TO THE ABERDEEN PROVING GROUND
COMMAND, ABERDEEN PROVING
GROUND, MARYLAND, EXCLUSIVE OF SUPERVISORS, MANAGERIAL OFFICIALS,
GUARDS, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK OTHER THAN IN A PURELY CLERICAL CAPACITY,
EMPLOYEES OF THE BOILER
PLANTS BRANCH, FACILITIES MANAGEMENT DIRECTORATE, AND ANY OTHER
EMPLOYEES TO WHOM EXCLUSIVE
RECOGNITION HAS BEEN GRANTED.
(B) HONOR ALL TERMS OF THE EXISTING NEGOTIATED AGREEMENT WITH LOCAL
LODGE 2424,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO.
(C) POST AT ITS FACILITY AT ABERDEEN PROVING GROUND COMMAND, ABERDEEN
PROVING GROUND,
MARYLAND, 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, DEFENSE SUPPLY AGENCY, DEFENSE
PROPERTY DISPOSAL OFFICE,
ABERDEEN PROVING GROUND, ABERDEEN MARYLAND, 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 MATERIALS.
(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
VIOLATIONS OF SECTION 19(A)(2) AND (6) OF EXECUTIVE ORDER 11491, AS
AMENDED, BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ IN ITS BRIEF, THE RESPONDENT POINTS OUT THAT APPROXIMATELY 87
PETITIONS HAVE BEEN FILED BY INTERESTED LABOR ORGANIZATIONS SEEKING TO
REPRESENT DPDS EMPLOYEES THROUGHOUT THE COUNTRY.
/2/ THE THREE DPDR'S IN CONUS ARE HEADQUARTERED AT COLUMBUS, OHIO;
MEMPHIS, TENNESSEE; AND OGDEN, UTAH.
/3/ TWO OF THESE EMPLOYEES ARE SUPERVISORS, TEN ARE NONSUPERVISORY
CLASSIFICATION ACT (GRADED) EMPLOYEES, AND THE 15 EMPLOYEES AT ISSUE IN
THIS CASE ARE NONSUPERVISORY WAGE GRADE (UNGRADED) EMPLOYEES.
/4/ ALL DATES HEREIN, UNLESS OTHERWISE SPECIFIED, OCCURRED IN 1973.
/5/ AS NOTED ABOVE, THE INSTANT UNFAIR LABOR PRACTICE COMPLAINT WAS
FILED ON JUNE 15. THEREAFTER, ON AUGUST 29, THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES FILED A REPRESENTATION PETITION COVERING THE DPDO
EMPLOYEES AT ABERDEEN. THIS PETITION SUBSEQUENTLY WAS WITHDRAWN ON
OCTOBER 30 AND REFILED ON NOVEMBER 6. ON OCTOBER 24, THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, FILED A PETITION COVERING
THE DPDR, COLUMBUS, OHIO, WHICH ENCOMPASSES THE DPDO EMPLOYEES AT
ABERDEEN.
/6/ SEE DEPARTMENT OF THE ARMY, STRATEGIC COMMUNICATIONS COMMAND,
FORT HUACHUCA, ARIZONA, A/SLMR NO. 351; DEPARTMENT OF ARMY,
HEADQUARTERS, U.S. ARMY TRAINING CENTER ENGINEER AND FORT LEONARD WOOD,
FORT LEONARD WOOD, MISSOURI, A/SLMR NO. 328; AND AMC AMMUNITION CENTER,
SAVANNA, ILLINOIS, A/SLMR NO. 291.
/7/ I HAVE BEEN ADVISED ADMINISTRATIVELY THAT THE SUBJECT CASE IS
TYPICAL OF MANY OF THOSE CURRENTLY PENDING THROUGHOUT THE COUNTRY.
/8/ IT IS, OF COURSE, THE RESPONSIBILITY OF MANAGEMENT TO DECIDE HOW
IT WILL FULFILL ITS MANAGEMENT ROLE WITH RESPECT TO DEALING WITH ANY
EXCLUSIVE BARGAINING REPRESENTATIVE. THUS, IN THIS INSTANCE, IT WILL BE
INCUMBENT UPON THE CO-EMPLOYERS TO TAKE THE NECESSARY STEPS TO DESIGNATE
AN APPROPRIATE MANAGEMENT REPRESENTATIVE OR REPRESENTATIVES TO DEAL WITH
THE COMPLAINANT CONCERNING APPROPRIATE MATTERS RELATED TO THE BARGAINING
UNIT.
/9/ SEE UNITED STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY,
NAVAL AIR RESERVE TRAINING UNIT, MEMPHIS, TENNESSEE, A/SLMR NO. 106.
/10/ IBID.
WE WILL NOT REFUSE TO ACCORD APPROPRIATE RECOGNITION TO LOCAL LODGE
2424, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO.
WE WILL NOT REFUSE TO HONOR ALL OF THE TERMS OF THE EXISTING
NEGOTIATED AGREEMENT WITH LOCAL LODGE 2424, INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS, AFL-CIO.
WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
REFUSING TO ACCORD APPROPRIATE RECOGNITION TO THEIR EXCLUSIVE BARGAINING
REPRESENTATIVE, BY REFUSING TO HONOR THE EXISTING NEGOTIATED AGREEMENT
COVERING OUR EMPLOYEES AND BY THREATENING TO CANCEL DUES WITHHOLDING
AUTHORIZATIONS EXECUTED BY OUR EMPLOYEES.
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 . . .
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 ST.,
PHILADELPHIA, PA. 19104.
4 A/SLMR 359; P. 157; CASE NO. 22-4028(CO); FEBRUARY 28, 1974.
GRAPHIC ARTS INTERNATIONAL
UNION, LOCAL 4B
A/SLMR NO. 359
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVES A COMPLAINT FILED BY
JOHN M. DENIRO (COMPLAINANT), ALLEGING THAT THE RESPONDENT LABOR
ORGANIZATION VIOLATED SECTION 19(B)(1) OF THE EXECUTIVE ORDER, AS
AMENDED, BY REFUSING TO ALLOW HIM TO RESIGN FROM SUCH LABOR
ORGANIZATION. THE RESPONDENT ACKNOWLEDGED DURING THE HEARING AND IN A
POST-HEARING BRIEF THAT ITS ACTIONS IN THIS MATTER CONSTITUTED A
VIOLATION OF THE EXECUTIVE ORDER BUT CONTENDED THAT A REMEDIAL ORDER WAS
NOT NECESSARY AS SUCH ACTIONS WERE NOT DISCRIMINATORILY MOTIVATED BUT,
RATHER, WERE CAUSED BY THE ABSENCE OF A PROVISION IN ITS CONSTITUTION
AND BY-LAWS PRESCRIBING A SPECIFIC PROCEDURE FOR RESIGNATION.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE COMPLAINANT SOUGHT, AND
WAS REFUSED, THE OPPORTUNITY TO EXERCISE HIS RIGHTS SET FORTH IN SECTION
1(A) OF THE EXECUTIVE ORDER, NAMELY, TO RESIGN FROM THE RESPONDENT LABOR
ORGANIZATION. HE FOUND THAT INASMUCH AS THERE WAS NO CONTENTION THAT
THE COMPLAINANT'S CONDUCT IN SEEKING TO RESIGN CONFLICTED WITH ANY
PROVISIONS OF THE RESPONDENT'S CONSTITUTION OR BY-LAWS, THE RESPONDENT'S
ACTION IN SUBSEQUENTLY LISTING AND PUBLISHING THE COMPLAINANT'S NAME IN
ITS MONTHLY "BULLETIN" AS A SUSPENDED MEMBER INTERFERED WITH THE
COMPLAINANT'S RIGHTS IN VIOLATION OF SECTION 19(A)(B)(1) OF THE
EXECUTIVE ORDER, AS AMENDED.
UPON REVIEW OF THE ENTIRE RECORD IN THIS PROCEEDING, INCLUDING THE
REPORT AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, AND NOTING
THE ABSENCE OF EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE.
GRAPHIC ARTS INTERNATIONAL
UNION, LOCAL 4B
AND
JOHN M. DENIRO
ON NOVEMBER 26, 1973, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
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 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 ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING THAT
NO EXCEPTIONS WERE FILED TO THE REPORT AND RECOMMENDATIONS, 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 GRAPHIC ARTS
INTERNATIONAL UNION, LOCAL 4B, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING AND FAILING TO ACCEPT OR HONOR THE RESIGNATION FROM
MEMBERSHIP OF JOHN
M. DENIRO SUBMITTED ON OR ABOUT JULY 21, 1972.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) ACCEPT AND HONOR THE RESIGNATION FROM MEMBERSHIP OF JOHN M.
DENIRO EFFECTIVE AS OF JULY
21, 1972.
(B) PUBLISH IN ITS MONTHLY "BULLETIN" A STATEMENT INDICATING THAT
JOHN M. DENIRO WAS
ERRONEOUSLY LISTED IN PREVIOUS "BULLETINS" AS A SUSPENDED MEMBER
WHEN, IN FACT, HE HAD
EFFECTIVELY RESIGNED FROM GRAPHIC ARTS INTERNATIONAL UNION, LOCAL 4B
ON JULY 21, 1972, BEING
AT THAT TIME A FULLY PAID-UP MEMBER OF LOCAL 4B.
(C) POST AT 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 WHICH SHALL BE SIGNED BY THE PRESIDENT OF GRAPHIC ARTS
INTERNATIONAL UNION, LOCAL
4B. THE NOTICES SHALL REMAIN POSTED FOR A PERIOD OF 60 DAYS, AND
LOCAL 4B SHALL TAKE
REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE BUREAU OF ENGRAVING
AND PRINTING IN
WASHINGTON, D.C. 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.
(E) 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.
FEBRUARY 28, 1974
WE WILL NOT REFUSE TO ACCEPT OR HONOR THE RESIGNATION OF JOHN M.
DENIRO FROM MEMBERSHIP IN GRAPHIC ARTS INTERNATIONAL UNION, LOCAL 4B.
DATED: . . .
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 MEMBERS HAVE ANY QUESTIONS 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, PA. 19104.
IN THE MATTER OF
GRAPHIC ARTS INTERNATIONAL
UNION, LOCAL 4B
AND
JOHN M. DENIRO
ANTHONY F. CAFFERKY, ESQUIRE
1828 L STREET, N.W.
SUITE 703
WASHINGTON, D.C. 20036
WILLIAM A. KILCOYNE
PRESIDENT OF LOCAL 4B
2818 KINGSWELL DRIVE
WHEATON, MARYLAND 20902
MICHAEL J. SMITH
VICE PRESIDENT OF LOCAL 4B
MULLSWORTH DRIVE & RTE. 1
MOUNT AIRY, MARYLAND 21771
JOHN M. DENIRO
4201 EASTERN AVENUE
MT. RAINIER, MARYLAND 20822
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON JUNE 28, 1973, UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY JOHN M. DENIRO, AN INDIVIDUAL, AGAINST GRAPHIC
ARTS INTERNATIONAL UNION, LOCAL 4B (HEREINAFTER CALLED THE UNION OR
RESPONDENT) A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE ASSISTANT
REGIONAL DIRECTOR FOR THE PHILADELPHIA, PENNSYLVANIA, REGION ON
SEPTEMBER 6, 1973.
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT HAS REFUSED
TO ALLOW THE COMPLAINANT, JOHN M. DENIRO, TO FREELY RESIGN FROM ITS
UNION IN VIOLATION OF SECTION 19(B)(1) OF THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THE CAPTIONED MATTER ON OCTOBER 15, 1973, IN
WASHINGTON, D.C. ALL PARTIES /1/ WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN. SUBSEQUENTLY, RESPONDENT,
THROUGH ITS ATTORNEY, FILED A BRIEF WHICH HAS BEEN DULY CONSIDERED.
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, CONCLUSIONS AND RECOMMENDATIONS:
THE FACTS ARE NOT IN DISPUTE AND NO CREDIBILITY ISSUES ARE INVOLVED.
THE RESPONDENT, GRAPHIC ARTS INTERNATIONAL UNION, LOCAL 4B, IS THE
DULY AUTHORIZED AND RECOGNIZED REPRESENTATIVE OF CERTAIN EMPLOYEES OF
THE BUREAU OF ENGRAVING AND PRINTING, WASHINGTON, D.C. THE COMPLAINANT,
JOHN M. DENIRO, HAS WORKED FOR THE BUREAU OF ENGRAVING AND PRINTING FOR
SOME TWENTY YEARS. ABOUT AUGUST 1953, DENIRO BECAME A MEMBER OF THE
RESPONDENT WHEN HE TRANSFERRED HIS "MEMBERSHIP FROM A NEW YORK LOCAL
INTO THE GRAPHIC ARTS LOCAL". THEREAFTER, HE REMAINED A PAID-UP MEMBER
IN GOOD STANDING UNTIL ON OR ABOUT JULY 21, 1972, WHEN THE EVENTS
UNDERLYING THE INSTANT PROCEEDING TOOK PLACE.
THUS, ON OR ABOUT JULY 21, DENIRO, WHO AT THE TIME HAD PAID HIS UNION
DUES THROUGH THE END OF JULY 1973, APPROACHED JAMES ARNOLD, UNION
REPRESENTATIVE IN THE POSTAL STAMP DIVISION OF THE BUREAU, SURRENDERED
HIS PAID-TO-DATE UNION DUES PAYMENT BOOK AND INFORMED ARNOLD THAT HE,
DENIRO, WAS RESIGNING FROM THE UNION. ARNOLD ACCEPTED THE BOOK WITHOUT
CHALLENGE OR ARGUMENT AND DENIRO THEN DEPARTED UNDER THE IMPRESSION THAT
HE WAS NO LONGER A MEMBER OF THE UNION.
NOTHING FURTHER OF NOTE OCCURRED WITH REGARD TO DENIRO'S RESIGNATION
UNTIL MARCH 20, 1973, WHEN HE RECEIVED A TELEPHONE CALL AT HIS HOME FROM
WILLIAM A. KILCOYNE, PRESIDENT OF THE UNION. DURING THE COURSE OF THE
TELEPHONE CONVERSATION, KILCOYNE ATTEMPTED TO DISSUADE DENIRO FROM
RELINQUISHING HIS UNION MEMBERSHIP BY POINTING OUT TO HIM THE VARIOUS
DEATH AND RETIREMENT BENEFITS HE WOULD LOSE IF HE ADHERED TO HIS JULY
DECISION TO RESIGN FROM THE UNION. ADDITIONALLY, KILCOYNE INFORMED
DENIRO OF THE UNION RULES REQUIRING THE PUBLICATION OF ANY SUSPENDED
MEMBER'S NAME IN THE UNION'S "BULLETIN", A MONTHLY NEWSPAPER. /2/
THEREAFTER, DENIRO, WHO DID IN FACT ADHERE TO HIS INITIAL DECISION WITH
RESPECT TO HIS RESIGNATION, WAS LISTED IN VARIOUS UNION BULLETINS
PUBLISHED DURING THE PERIOD MARCH 1973 THROUGH AUGUST 1973 AS BEING A
"SUSPENDED" UNION MEMBER. /3/ AS NOTED SUPRA, IT IS THIS LATTER ACTION
OF THE RESPONDENT IN INCORRECTLY PUBLISHING DENIRO'S NAME IN ITS
"BULLETIN" AS A SUSPENDED RATHER THAN AS A RESIGNED MEMBER WHICH IS THE
BASIS OF THE COMPLAINT.
SECTION 1(A) OF THE EXECUTIVE ORDER PROVIDES, IN PERTINENT PART, THAT
AN EMPLOYEE SUBJECT THERETO HAS A RIGHT TO REFRAIN FROM JOINING OR
ASSISTING A LABOR ORGANIZATION. UNION ABRIDGEMENT OF SUCH RIGHTS, WHICH
INCLUDE RESIGNATION FROM A UNION, CONSTITUTES A VIOLATION OF SECTION
19(B)(1) OF THE ORDER. LOCAL 1858, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (REDSTONE ARSENAL, ALABAMA A/SLMR NO. 275.
IN THE INSTANT CASE, THE ESSENTIAL FACTS OF WHICH ARE NOT IN DISPUTE,
DENIRO SOUGHT, AND WAS REFUSED, THE OPPORTUNITY TO EXERCISE HIS RIGHTS
SET FORTH IN SECTION 1(A) OF THE EXECUTIVE ORDER, NAMELY, TO RESIGN FROM
THE UNION. INASMUCH AS THERE IS NO CONTENTION THAT SUCH ACTION ON HIS
PART CONFLICTED WITH ANY PROVISIONS OF THE RESPONDENT'S CONSTITUTION OR
BY-LAWS, THE UNION'S ACTION IN SUBSEQUENTLY LISTING AND PUBLISHING HIS
NAME IN ITS MONTHLY "BULLETIN" AS A SUSPENDED MEMBER INTERFERED WITH
DENIRO'S RESIGNATION SINCE THE ONLY CHOICE GIVEN TO HIM WAS TO REMAIN A
MEMBER IN GOOD STANDING OF THE UNION OR SUFFER THE HUMILIATION OF HAVING
HIS NAME CONTINUALLY PUBLISHED AS BEING A "SUSPENDED MEMBER", A CATEGORY
GENERALLY ASSOCIATED WITH THE NON-PAYMENT OF DUES.
RESPONDENT, DURING THE HEARING AND IN POST HEARING BRIEF,
ACKNOWLEDGED THAT ITS ACTION CONSTITUTED A VIOLATION OF THE EXECUTIVE
ORDER BUT CONTENDED THAT A REMEDIAL ORDER WAS NOT NECESSARY. IN SUPPORT
OF ITS POSITION THE RESPONDENT POINTS OUT THAT ITS ACTIONS WERE NOT
DISCRIMINATORILY MOTIVATED BUT RATHER WERE CAUSED SOLELY BY THE ABSENCE
OF A PROVISION IN ITS CONSTITUTION AND BY-LAWS PRESCRIBING A SPECIFIC
PROCEDURE IN ITS CONSTITUTION. ADDITIONALLY, RESPONDENT TAKES THE
POSITION THAT THE INSTANT CASE IS DISTINGUISHABLE FROM LOCAL 1858,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, "SUPRA, IN THAT THERE IS NO
EVIDENCE, WHATSOEVER, THAT THE POSTING OF DENIRO'S NAME AS BEING A
SUSPENDED MEMBER WAS IN RETALIATION FOR HIS RESIGNATION, AS TO THE FIRST
CONTENTION, SUFFICETH TO SAY, IGNORANCE OF THE LAW IS NO EXCUSE. WITH
RESPECT TO THE SECOND CONTENTION, I DO NOT VIEW THE ASSISTANT
SECRETARY'S DECISION IN THE CITED CASE AS HOLDING THAT EVIDENCE OF
"RETALIATION" IS A PREREQUISITE TO A 19(B)(1) FINDING PREDICATED ON A
UNION'S INTERFERENCE WITH AN EMPLOYEE'S SECTION 1(A) RIGHT TO RESIGN
FROM MEMBERSHIP IN A UNION.
HOWEVER, WHILE I DO NOT VIEW THE RESPONDENT'S CONTENTIONS SET FORTH
ABOVE AS A DEFENSE, I DO FEEL THAT THEY ARE MITIGATING CIRCUMSTANCES
WHICH SHOULD BE TAKEN INTO CONSIDERATION WHEN FASHIONING A REMEDY.
ACCORDINGLY, SINCE IT APPEARS THAT THE UNION IS PREPARED TO VOLUNTARILY
RECTIFY ITS ACTIONS WITH RESPECT TO ANY FUTURE RESIGNATIONS, I WILL
RECOMMEND A NARROW ORDER TAILORED SPECIFICALLY TO THE SITUATION HERE
INVOLVED.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTION 19(B)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, I
RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING ORDER
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 GRAPHIC ARTS
INTERNATIONAL UNION, LOCAL 4B, SHALL:
1. CEASE AND DESIST FROM:
REFUSING AND FAILING TO ACCEPT OR HONOR THE RESIGNATION FROM
MEMBERSHIP OF JOHN M. DENIRO
SUBMITTED ON OR ABOUT JULY 21, 1972.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF THE ORDER:
(A) ACCEPT AND HONOR THE RESIGNATION FROM MEMBERSHIP OF JOHN M.
DENIRO EFFECTIVE AS OF JULY 21, 1972.
(B) PUBLISH IN ITS MONTHLY "BULLETIN" A STATEMENT INDICATING THAT
JOHN M. DENIRO WAS ERRONEOUSLY LISTED IN PREVIOUS "BULLETINS" AS A
SUSPENDED MEMBER, WHEN IN FACT, HE HAD EFFECTIVELY RESIGNED FROM LOCAL
4B ON JULY 21, 1972, BEING AT THAT TIME A FULLY PAID-UP MEMBER OF LOCAL
4B.
(C) POST AT 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 WHICH
SHALL BE SIGNED BY THE PRESIDENT OF GRAPHIC ARTS INTERNATIONAL UNION,
LOCAL 4B. THE NOTICES SHALL REMAIN POSTED FOR A PERIOD OF 60 DAYS, AND
LOCAL 4B SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY OTHER MATERIAL.
(D) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE BUREAU OF ENGRAVING
AND PRINTING FOR POSTING IN CONSPICUOUS PLACES WHERE THE UNIT EMPLOYEES
ARE LOCATED WHERE THEY SHALL BE MAINTAINED FOR A PERIOD OF 60
CONSECUTIVE DAYS FROM THE DATE OF POSTING.
(E) 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 AT WASHINGTON, D.C.
NOVEMBER 26, 1973
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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS P9OVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT SERVICES ADMINISTRATION,
U.S. DEPARTMENT OF LABOR WHOSE ADDRESS IS: ROOM 14120, GATEWAY BUILDING
3535 MARKET STREET, PHILADELPHIA, PA. 19104.
/1/ RESPONDENT WAS REPRESENTED BY COUNSEL.
/2/ ACCORDING TO THE UNCONTROVERTED TESTIMONY OF KILCOYNE, THE
UNION'S CONSTITUTION AND BY-LAWS SET FORTH ONLY THE REQUIREMENTS AND
PROCEDURE FOR SUSPENSION AND EXPULSION. NO PROVISION, WHATSOEVER, IS
MADE FOR RESIGNATION. IN VIEW OF THE FOREGOING, AND SINCE A RESIGNATION
HAS NEVER TO HIS KNOWLEDGE OCCURRED, DENIRO WAS TREATED AS A SUSPENDED
MEMBER.
/3/ THE DATE WHEN THE MARCH "BULLETIN" WAS ACTUALLY PUBLISHED DOES
NOT APPEAR IN THE RECORD. HOWEVER, IN VIEW OF CERTAIN DATES APPEARING
THEREIN WHICH PREDATE THE MARCH 20TH CONVERSATION BETWEEN KILCOYNE AND
DENIRO, IT IS POSSIBLE THAT THE PUBLICATION HAD GONE TO PRESS PRIOR TO
SUCH CONVERSATION. IN ANY EVENT, I SEE NO PARTICULAR SIGNIFICANCE TO
THE ACTUAL DATE THE MARCH "BULLETIN" WAS PUBLISHED SINCE THERE IS NO
ALLEGATION THAT THE APPEARANCE OF DENIRO'S NAME THEREIN AS BEING A
SUSPENDED MEMBER WAS PREDICATED SOLELY ON, OR IN RETALIATION FOR,
ANYTHING IN PARTICULAR DURING THE MARCH 20TH TELEPHONE CONVERSATION.
4 A/SLMR 358; P. 151; CASE NO. 30-5109(RO); FEBRUARY 28, 1974.
GENERAL SERVICES ADMINISTRATION,
REGION 2, NEW YORK, NEW YORK
A/SLMR NO. 358
THIS CASE AROSE AS A RESULT OF A REPRESENTATION PETITION FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, DISTRICT 2,
COUNCIL OF GENERAL SERVICES ADMINISTRATION LOCALS (AFGE) SEEKING AN
ELECTION AMONG PROFESSIONAL AND NONPROFESSIONAL EMPLOYEES IN THE
REGIONWIDE UNIT ENCOMPASSING REGION 2 OF THE GENERAL SERVICES
ADMINISTRATION. THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R2-7 (NAGE) INTERVENED AND CONTENDED THAT THE UNIT OF ALL WAGE GRADE
EMPLOYEES EMPLOYED IN THE BUILDING MANAGEMENT DIVISION, PUBLIC BUILDINGS
SERVICE, NEW YORK CITY, NEW YORK, FOR WHICH IT IS CURRENTLY THE
EXCLUSIVELY RECOGNIZED REPRESENTATIVE, IS AN APPROPRIATE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE PETITIONED FOR REGIONWIDE UNIT
WAS APPROPRIATE IN THAT THERE WAS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AMONG ALL OF THE EMPLOYEES IN THE REGION AND THAT SUCH A UNIT
WOULD PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
HE FURTHER FOUND THAT THE EMPLOYEES EMPLOYED IN MOTOR POOLS
GEOGRAPHICALLY LOCATED IN REGION 2 BUT WHO WERE, IN FACT, REGION 1
EMPLOYEES SHOULD BE EXCLUDED FROM THE UNIT BECAUSE THEY DID NOT SHARE A
CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH REGION 2 EMPLOYEES.
CONVERSELY, HE FOUND THAT THE EMPLOYEES EMPLOYED IN THE NATIONAL
ARCHIVES AND RECORDS SERVICE (NARS) WHO WERE LOCATED GEOGRAPHICALLY
WITHIN THE CONFINES OF REGION 1, BUT WERE UNDER THE JURISDICTION OF THE
REGIONAL COMMISSIONER FOR NARS, REGION 2, SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST WITH REGION 2, EMPLOYEES AND THAT,
THEREFORE, THEIR INCLUSION IN THE CLAIMED UNIT WAS WARRANTED.
WITH RESPECT TO THE UNIT CURRENTLY REPRESENTED BY THE NAGE, THE
ASSISTANT SECRETARY FOUND, IN ACCORDANCE WITH THE PRINCIPLE ESTABLISHED
IN FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, A/SLMR
NO. 122, THAT SUCH EMPLOYEES WOULD BE ENTITLED TO A SELF-DETERMINATION
ELECTION IN THAT UNIT.
GENERAL SERVICES ADMINISTRATION
REGION 2, NEW YORK, NEW YORK
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, DISTRICT 2,
COUNCIL OF GENERAL SERVICES
ADMINISTRATION LOCALS
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R2-7
UPON PETITIONS /1/ DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER
11491, AS AMENDED, A CONSOLIDATED HEARING WAS HELD BEFORE HEARING OFFICE
LOUIS A. SCHNEIDER. /2/ THE HEARING OFFICER'S RULINGS MADE AT THE
HEARING ARE FREE FROM PREJUDICIAL ERROR AND ARE HEREBY AFFIRMED.
UPON THE ENTIRE RECORD IN THE SUBJECT CASE, INCLUDING THE ACTIVITY'S
BRIEF, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, DISTRICT 2, COUNCIL OF GENERAL SERVICES ADMINISTRATION LOCALS,
HEREIN CALLED AFGE, SEEKS AN ELECTION IN A UNIT OF ALL PROFESSIONAL AND
NONPROFESSIONAL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF GENERAL
SERVICES ADMINISTRATION (GSA), REGION 2, EXCLUDING MANAGERS,
CONFIDENTIAL EMPLOYEES, PUBLIC BUILDINGS SERVICE WAGE GRADE EMPLOYEES
LOCATED IN THE U.S. POST OFFICE AND COURT HOUSE IN TRENTON, NEW JERSEY,
EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY
CLERICAL CAPACITY, AND SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
/3/
THE ACTIVITY IS ESSENTIALLY IN AGREEMENT THAT THE UNIT PETITIONED FOR
BY THE AFGE IS APPROPRIATE. THE INTERVENOR, NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R2-7, HEREIN CALLED NAGE, CONTENDS THAT THE
CLAIMED UNIT IS INAPPROPRIATE INASMUCH AS IT ENCOMPASSES A UNIT OF WAGE
GRADE EMPLOYEES EMPLOYED IN THE BUILDING MANAGEMENT DIVISION, PUBLIC
BUILDINGS SERVICE (PBS) IN NEW YORK CITY, NEW YORK, FOR WHICH IT IS THE
INCUMBENT EXCLUSIVE REPRESENTATIVE. /4/
ALLEGED BARS TO THE AFGE PETITION
AT THE TIME THE INSTANT PETITION WAS FILED, THERE EXISTED 15 SEPARATE
EXCLUSIVE BARGAINING UNITS OF GSA EMPLOYEES LOCATED THROUGHOUT REGION 2.
OF THESE 15 UNITS, THE AFGE (WHICH IS COMPRISED OF 6 LOCALS)
REPRESENTED 9 UNITS; THE NFFE MAINTENANCE CRAFT, HEREIN CALLED APWU,
REPRESENTED 2 UNITS; THE NAGE REPRESENTED ONE UNIT; AND THE
INTERNATIONAL FEDERATION OF FEDERAL POLICE, HEREIN CALLED IFFP,
REPRESENTED A REGIONWIDE UNIT OF ALL GUARDS EMPLOYED BY THE ACTIVITY.
/5/
THE EVIDENCE ESTABLISHES THAT, CURRENTLY, NEGOTIATED AGREEMENTS EXIST
COVERING EMPLOYEES IN FOUR OF THE NINE UNITS REPRESENTED BY THE AFGE, IN
ONE OF THE TWO UNITS REPRESENTED BY THE APWU, IN BOTH UNITS REPRESENTED
BY THE NFFE, AND IN THE SINGLE UNIT REPRESENTED BY THE NAGE.
DURING THE HEARING, THE AFGE AND THE ACTIVITY AGREED TO WAIVE THEIR
EXISTING AGREEMENTS INSOFAR AS THEY MAY CONSTITUTE BARS TO THE PETITION
HEREIN. /6/ UNDER THESE CIRCUMSTANCES, I FIND THAT SUCH AGREEMENTS DO
NOT CONSTITUTE PROCEDURAL BARS TO THE INCLUSION OF THE COVERED EMPLOYEES
IN THE CLAIMED UNIT. /7/
THE PARTIES, INCLUDING THE ACTIVITY, STIPULATED THAT THE NEGOTIATED
AGREEMENT BETWEEN THE ACTIVITY AND THE NFFE LOCAL 1557, COVERING ALL PBS
WAGE GRADE EMPLOYEES AT THE U.S. POST OFFICE AND COURT HOUSE IN TRENTON,
NEW JERSEY, WHICH EXPIRES ON NOVEMBER 13, 1975, CONSTITUTED A BAR TO A
REPRESENTATION ELECTION AT THAT FACILITY. INASMUCH AS THERE IS NO
EVIDENCE WHICH INDICATES THAT THE PARTIES' STIPULATION IN THIS REGARD
WAS IMPROPER, I FIND THAT THE NEGOTIATED AGREEMENT BETWEEN THE ACTIVITY
AND NFFE LOCAL 1557 CONSTITUTES A BAR TO AN ELECTION WITH RESPECT TO
THOSE EMPLOYEES COVERED BY SUCH AGREEMENT.
THE ACTIVITY AND THE AFGE MAINTAINED THAT THE NEGOTIATED AGREEMENT
BETWEEN NFFE LOCAL 907 AND THE ACTIVITY, COVERING FIREFIGHTERS EMPLOYED
BY THE ACTIVITY AT ITS FACILITY IN SCOTIA, NEW YORK, HAD A TERMINATION
DATE OF JULY 24, 1973, AND DOES NOT CONSTITUTE A BAR TO THE INSTANT
PETITION. /8/ THE NFFE, ON THE OTHER HAND, ASSERTED THAT THIS AGREEMENT
HAD AUTOMATICALLY RENEWED ITSELF, WAS STILL IN EFFECT BECAUSE NFFE LOCAL
907 HAD NOT SOUGHT TO TERMINATE IT, AND THEREFORE, IT CONSTITUTED A BAR
TO AN ELECTION WITH RESPECT TO THE EMPLOYEES COVERED BY SUCH AGREEMENT.
THE EVIDENCE ESTABLISHES THAT THE NEGOTIATED AGREEMENT IN QUESTION
CONTAINED A TERMINATION DATE OF JULY 24, 1973, AND THAT THE AFGE FILED
ITS PETITION TIMELY ON APRIL 26, 1973, DURING THE PRESCRIBED "OPEN
PERIOD." UNDER THESE CIRCUMSTANCES, I FIND THAT THE AGREEMENT DOES NOT
CONSTITUTE A BAR TO AN ELECTION AT THE ACTIVITY'S SCOTIA, NEW YORK
FACILITY. /9/
WITH REGARD TO THE EXISTING UNIT OF ALL WAGE GRADE EMPLOYEES OF THE
PBS, GSA, REGION 2, NEW YORK CITY, WHICH THE NAGE CURRENTLY REPRESENTS,
THE RECORD REVEALS THAT THE NAGE WAS GRANTED EXCLUSIVE RECOGNITION ON
APRIL 28, 1967, AND THAT ITS MOST RECENT NEGOTIATED AGREEMENT WITH THE
ACTIVITY EXPIRED ON JUNE 27, 1973. NONE OF THE PARTIES CONTEND THAT
SUCH AGREEMENT CONSTITUTED A BAR TO AN ELECTION AND, IN THIS REGARD, THE
EVIDENCE ESTABLISHES THAT THE AFGE'S PETITION HEREIN WAS TIMELY FILED
WITH RESPECT TO UNIT INVOLVED. ACCORDINGLY, AS MODIFIED BELOW, I FIND
THAT NO PROCEDURAL BAR EXISTS TO THE INCLUSION OF THE ELIGIBLE PBS
EMPLOYEES IN THE UNIT SOUGHT BY THE AFGE. UNDER SIMILAR CIRCUMSTANCES,
IT PREVIOUSLY HAS BEEN HELD THAT, WHERE, AS HERE, A PETITION HAS BEEN
TIMELY FILED ENCOMPASSING AN EXCLUSIVELY RECOGNIZED UNIT IN WHICH A
COLLECTIVE BARGAINING HISTORY EXISTS, EMPLOYEES IN SUCH UNIT HAVE BEEN
AFFORDED THE OPPORTUNITY TO VOTE IN A SELF-DETERMINATION ELECTION. /10/
UNDER THE CIRCUMSTANCES OUTLINED ABOVE, I SHALL PROVIDE THE EMPLOYEES IN
THE PBS UNIT CURRENTLY REPRESENTED BY THE NAGE AN OPPORTUNITY TO VOTE IN
A SELF-DETERMINATION ELECTION.
DEFUNCTNESS
THE RECORD INDICATES THAT APWU LOCAL 123 WAS GRANTED EXCLUSIVE
RECOGNITION ON JULY 19, 1968, FOR A UNIT OF ALL NONSUPERVISORY PBS
EMPLOYEES IN ALBANY, NEW YORK. SUBSEQUENTLY, APWU LOCAL 123 AND THE
ACTIVITY NEGOTIATED AN AGREEMENT EFFECTIVE OCTOBER 25, 1968, WHICH
SUBSEQUENTLY CONTINUED IN EFFECT BY VIRTUE OF AN AUTOMATIC RENEWAL
CLAUSE. ON DECEMBER 12, 1972, THE EXECUTIVE VICE-PRESIDENT OF APWU
ADVISED THE ACTIVITY THAT, IN EFFECT, HE WAS DISCLAIMING INTEREST IN THE
UNIT EMPLOYEES STATING THAT LOCAL 123 DID NOT REPRESENT ANY EMPLOYEES
AND WAS "DEFUNCT." UNDER THESE CIRCUMSTANCES, I FIND THAT AT THE TIME
THE SUBJECT PETITION WAS FILED, APWU LOCAL 123 WAS "DEFUNCT" AND
THEREFORE, THE NEGOTIATED AGREEMENT COVERING THE PBS EMPLOYEES IN
ALBANY, NEW YORK, DOES NOT CONSTITUTE A BAR TO THE INCLUSION OF THESE
EMPLOYEES IN THE CLAIMED UNIT. /11/
APPROPRIATE UNIT
THE EVIDENCE ESTABLISHES THAT THE MISSION OF GSA IS TO PROVIDE THE
VARIOUS SERVICES REQUIRED BY AGENCIES OF THE FEDERAL GOVERNMENT. TO
ACCOMPLISH THIS MISSION, GSA, WHICH IS HEADQUARTERED IN WASHINGTON, D.C.
AND IS HEADED BY AN ADMINISTRATOR, HAS TEN REGIONAL OFFICES, EACH HEADED
BY A REGIONAL ADMINISTRATOR. UNDER EACH REGIONAL ADMINISTRATOR ARE
REGIONAL COMMISSIONERS WHO, WITH CERTAIN LIMITED EXCEPTIONS, HEAD THE
VARIOUS PROGRAM SERVICES FOR THEIR RESPECTIVE REGIONS. THE PROGRAM
SERVICES INVOLVE GENERALLY THE PROCUREMENT AND SUPPLY OF PERSONAL
PROPERTY AND NONPERSONAL SERVICES, THE ACQUISITION OF REAL PROPERTY, THE
MANAGEMENT OF FEDERALLY OWNED AND LEASED SPACE AND PROPERTY, THE
UTILIZATION OF AVAILABLE REAL AND PERSONAL PROPERTY, THE DISPOSAL OF
SURPLUS REAL AND PERSONAL PROPERTY, AND RECORDS MANAGEMENT.
THERE ARE FOUR PROGRAM SERVICES: (1) PBS, WHICH IS CONCERNED
PRIMARILY WITH PROVIDING CARE AND MAINTENANCE FOR FEDERAL BUILDINGS AND
WITH PROVIDING NON-GOVERNMENT OFFICE SPACE WHERE GOVERNMENT SPACE IS
UNAVAILABLE; (2) AUTOMATED DATA PROCESSING AND TELECOMMUNICATIONS
(ADTS), WHICH PROVIDES TELECOMMUNICATIONS AND COMPUTER SERVICES TO ALL
FEDERAL AGENCIES; (3) FEDERAL SUPPLY SERVICE (FSS), WHICH PURCHASES
SUPPLIES, PROVIDES STORAGE SPACE FOR SUCH SUPPLIES UNTIL NEEDED, AND
OPERATES ALL INTERAGENCY MOTOR POOLS; AND (4) NATIONAL ARCHIVES AND
RECORDS SERVICE (NARS), WHICH ACTS AS A REPOSITORY FOR HISTORICAL
DOCUMENTS, MANAGES SEVERAL FEDERAL RECORD CENTERS WHICH STORE RECORDS
NOT IMMEDIATELY IN USE BY THE VARIOUS FEDERAL AGENCIES, AND PROVIDES A
RECORDS MANAGEMENT ADVISORY FUNCTION TO OTHER AGENCIES.
THE RECORD REVEALS THAT REGION 2 OF GSA IS HEADQUARTERED IN NEW YORK
CITY, NEW YORK, AND ENCOMPASSES THE STATES OF NEW YORK AND NEW JERSEY,
THE COMMONWEALTH OF PUERTO RICO, AND THE VIRGIN ISLANDS. IT EMPLOYS
SOME 2,300 EMPLOYEES OF WHOM APPROXIMATELY 1,400 ARE WAGE GRADE WITH
APPROXIMATELY 1,000 OF THESE EMPLOYED IN THE PBS. LOCATED IN THE
REGIONAL OFFICE IS NEW YORK CITY ARE, AMONG OTHERS, THE REGIONAL
ADMINISTRATOR FOR REGION 2 AND THE REGIONAL COMMISSIONERS FOR THE
VARIOUS PROGRAM SERVICES.
THE RECORD INDICATES THAT THE VARIOUS SERVICES OF REGION 2 HAVE FIELD
LOCATIONS. THUS, THERE ARE APPROXIMATELY 14 ADTS FACILITIES CONSISTING
OF TELEPHONE OPERATORS AND SOME COMPUTER OPERATORS UNDER THE SUPERVISION
OF THE CHIEF OPERATORS; APPROXIMATELY 3 FSS WAREHOUSES AND DEPOTS
SUPERVISED BY FACILITY MANAGERS; AND APPROXIMATELY 15 FIELD OFFICES
PERFORMING THE DAY-TO-DAY FUNCTIONS OF THE PBS AND SUPERVISED BY FIELD
OFFICE MANAGERS. /12/ AT SEVERAL OF THESE PBS FIELD OFFICES, FIELD
OFFICE MANAGERS HAVE THE RESPONSIBILITY FOR ONE OR MORE FEDERAL
BUILDINGS. THERE ARE 3 AREA MANAGERS WITHIN THE PBS IN REGION 2 WHO
SUPERVISE THE FIELD OFFICE MANAGERS.
THE EVIDENCE ESTABLISHES THAT EMPLOYEES IN THE PETITIONED FOR UNIT
ARE SUBJECT TO UNIFORM, BASIC PERSONNEL POLICIES, ADMINISTERED BY THE
REGIONAL PERSONNEL OFFICE. IN THIS REGARD, THE REGIONAL PERSONNEL
DIVISION ESTABLISHES PROMOTION REGISTERS, AND REFERRAL LISTS OF
QUALIFIED EMPLOYEES AND, IN ACCORDANCE WITH THE ACTIVITY'S PROMOTION
POLICY, VACANCIES ARE POSTED REGIONWIDE. WHILE PRODUCTION STANDARDS AND
STAFFING FORMULAS ARE DEVELOPED BY THE GSA'S CENTRAL OFFICE IN
WASHINGTON, D.C., THEY ARE APPLIED BY THE REGIONAL OFFICE TO DETERMINE
REGIONAL STAFFING REQUIREMENTS. THE CHIEF SPOKESMAN FOR THE MANAGEMENT
NEGOTIATING COMMITTEES IS THE REGIONAL PERSONNEL OFFICER OR HIS
DESIGNEE. THE REGIONAL ADMINISTRATOR HAS FINAL AUTHORITY WITH RESPECT
TO APPROVING NEGOTIATED AGREEMENTS AND OTHER MATTERS PERTAINING TO LABOR
RELATIONS. FURTHER, THE REGIONAL OFFICE MUST APPROVE ALL REQUESTS MADE
BY ITS MANAGERS FOR OVERTIME AND THE DETAILING OF PERSONNEL FOR THIRTY
OR MORE DAYS. SIMILARLY, CHANGES IN HOURS OF WORK ARE AUTHORIZED ONLY
AT THE REGIONAL LEVEL. ALTHOUGH FIELD OFFICE MANAGERS OF PBS CAN DETAIL
EMPLOYEES FROM ONE BUILDING TO ANOTHER FOR LESS THAN THIRTY DAYS, AND,
IN EMERGENCY SITUATIONS, HIRE INDIVIDUALS AS TEMPORARY EMPLOYEES UP TO
700 HOURS WITHOUT ADVANCE APPROVAL, THESE ACTIONS ARE SUBJECT TO
POST-AUDIT BY THE REGIONAL PERSONNEL OFFICE TO INSURE COMPLIANCE WITH
CIVIL SERVICE REGULATIONS. WITH RESPECT TO THE MOVEMENT OF EMPLOYEES
WITHIN REGION 2, THE RECORD REVEALS THAT FROM JUNE OF 1972 TO MAY 1973
THERE WERE TWENTY-TWO REASSIGNMENTS FROM ONE SERVICE TO ANOTHER WITHIN
REGION 2 RESULTING FROM PROMOTIONS, TRANSFERS OR TEMPORARY DETAILS.
BASED ON THE FOREGOING, AND NOTING THE DISCUSSION ABOVE WITH RESPECT
TO PROCEDURAL BARS, I FIND THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A
COMPREHENSIVE UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF
AGENCY OPERATIONS. THUS, IN SUM, THE RECORD REVEALS THAT THE EMPLOYEES
IN THE CLAIMED UNIT SHARE A COMMON MISSION, ARE SUBJECT TO UNIFORM BASIC
PERSONNEL, LEAVE, AND LABOR RELATIONS POLICIES, AND THAT MOVEMENT OF
EMPLOYEES AMONG THE VARIOUS SERVICES OF REGION 2 IS NOT UNCOMMON.
ACCORDINGLY, I FIND THAT THE PETITIONED FOR EMPLOYEES CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/13/
THE RECORD DISCLOSES THAT THERE ARE CERTAIN EMPLOYEES PHYSICALLY
LOCATED WITHIN THE GEOGRAPHIC BOUNDARIES OF REGION 2 WHO ARE UNDER THE
JURISDICTION OF THE REGIONAL ADMINISTRATOR OF REGION 1. ALSO, THERE ARE
SOME EMPLOYEES UNDER THE JURISDICTION OF THE REGIONAL ADMINISTRATOR OF
REGION 2 WHO ARE PHYSICALLY LOCATED WITHIN THE GEOGRAPHIC BOUNDARIES OF
REGION 1. THE ACTIVITY CONTENDS THAT THE EMPLOYEES OF REGION 1,
REGARDLESS OF THEIR GEOGRAPHIC LOCATIONS, ARE, IN FACT, CONSIDERED BY
THE GSA TO BE REGION 1 EMPLOYEES AND, THEREFORE, SHOULD BE EXCLUDED FROM
THE CLAIMED UNIT. CONVERSELY, THE ACTIVITY MAINTAINS THAT EMPLOYEES
LOCATED WITHIN THE GEOGRAPHIC CONFINES OF REGION 1, BUT UNDER THE
JURISDICTION OF THE REGIONAL ADMINISTRATOR OF REGION 2, SHOULD BE
INCLUDED IN THE PETITIONED FOR UNIT. THE AFGE TOOK NO POSITION IN THIS
REGARD.
THE EVIDENCE ESTABLISHES THAT ONE OF THE GROUPS INVOLVED IS COMPRISED
OF FORTY-TWO EMPLOYEES EMPLOYED IN MOTOR POOLS LOCATED IN ALBANY, NEW
YORK CITY AND SYRACUSE, NEW YORK; NEWARK AND TRENTON, NEW JERSEY; AND
SAN JUAN, PUERTO RICO. THESE EMPLOYEES AND THEIR SUPERVISORS ARE ON THE
PAYROLL OF REGION 1. FURTHER, THEY ARE ON REGION 1 RETENTION REGISTERS
FOR REDUCTION-IN-FORCE PURPOSES; THEIR PERSONNEL FILES ARE MAINTAINED
IN REGION 1; ANY VACANCIES OCCURRING IN THIS GROUP ARE FILLED THROUGH
THE PERSONNEL DIVISION IN REGION 1; AND THE HIRING AND DISCHARGE OF ANY
OF THESE EMPLOYEES MUST BE APPROVED BY REGION 1'S REGIONAL
ADMINISTRATOR. THE RECORD ALSO REVEALS THAT THESE EMPLOYEES DO NOT
INTERCHANGE WITH OTHER EMPLOYEES LOCATED WITHIN REGION 2. UNDER ALL OF
THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES EMPLOYED IN THESE MOTOR
POOLS DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
REGION 2 EMPLOYEES AND THAT THEIR INCLUSION IN THE CLAIMED UNIT WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL EXCLUDE THESE REGION 1 EMPLOYEES FROM THE CLAIMED
UNIT.
THE RECORD REVEALS ALSO THAT THERE IS A GROUP OF THIRTY EMPLOYEES
EMPLOYED IN THE NARS, LOCATED IN BOSTON AND WALTHAM, MASSACHUSETTS,
(WITHIN THE GEOGRAPHIC JURISDICTION OF REGION 1) WHO ARE UNDER THE
ADMINISTRATIVE CONTROL OF THE NARS COMMISSIONER IN REGION 2. /14/ THESE
EMPLOYEES ARE NOT SUBJECT TO SUPERVISION BY REGION 1 SUPERVISORS, AND
THE NARS COMMISSIONER IN REGION 2 ISSUES INSTRUCTIONS TO THEM WITH
RESPECT TO THEIR DUTIES, JOB FUNCTIONS AND WORK SCHEDULES. WHILE, AT
PRESENT, THEY APPEAR ON THE REGION 1 PAYROLL AND RETENTION REGISTER FOR
REDUCTION-IN-FORCE PURPOSES, THE EVIDENCE ESTABLISHES THAT A DIRECTIVE
HAS BEEN ISSUED BY THE GSA CENTRAL OFFICE IN WASHINGTON, D.C. WITH
INSTRUCTIONS THAT THESE EMPLOYEES BE TRANSFERRED TO THE JURISDICTION OF
REGION 2. /15/ UNDER ALL OF THESE CIRCUMSTANCES, I FIND THESE NARS
EMPLOYEES TO HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST WITH
REGION 2 EMPLOYEES AND THAT THEIR INCLUSION IN THE CLAIMED UNIT WILL
PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
ACCORDINGLY, I SHALL INCLUDE THEM IN THE PETITIONED FOR UNIT.
HAVING FOUND THAT THE WAGE GRADE EMPLOYEES EMPLOYED IN THE BUILDING
MANAGEMENT DIVISION, PUBLIC BUILDINGS SERVICE, IN NEW YORK CITY, FOR
WHOM THE NAGE IS THE EXCLUSIVELY RECOGNIZED REPRESENTATIVE, ARE ENTITLED
TO A SELF-DETERMINATION ELECTION, I SHALL NOT MAKE ANY FINAL UNIT
DETERMINATION AT THIS TIME, BUT SHALL FIRST ASCERTAIN THE DESIRES OF THE
EMPLOYEES BY DIRECTING AN ELECTION IN THE FOLLOWING GROUP:
VOTING GROUP (A): ALL WAGE GRADE EMPLOYEES OF THE GENERAL SERVICES
ADMINISTRATION, REGION
2, EMPLOYED IN THE BUILDING MANAGEMENT DIVISION, PUBLIC BUILDINGS
SERVICE, NEW YORK CITY, NEW
YORK, EXCLUDING ALL CONFIDENTIAL AND TEMPORARY EMPLOYEES,
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.
AS NOTED ABOVE, THE ACTIVITY-WIDE UNIT OF PROFESSIONAL AND
NONPROFESSIONAL EMPLOYEES SOUGHT BY THE AFGE MAY CONSTITUTE A UNIT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/16/ 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, THEREFORE, SHALL
DIRECT THAT SEPARATE ELECTIONS BE CONDUCTED IN THE FOLLOWING GROUPS:
VOTING GROUP (B): ALL PROFESSIONAL EMPLOYEES OF THE GENERAL SERVICES
ADMINISTRATION,
REGION 2, EXCLUDING ALL EMPLOYEES VOTING IN VOTING GROUP (A),
NONPROFESSIONAL EMPLOYEES,
PUBLIC BUILDINGS SERVICE WAGE GRADE EMPLOYEES LOCATED IN THE U.S.
POST OFFICE AND COURT HOUSE,
TRENTON, NEW JERSEY, CONFIDENTIAL AND 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 (C): ALL GENERAL SCHEDULE AND WAGE GRADE EMPLOYEES OF
THE GENERAL SERVICES
ADMINISTRATION, REGION 2, EXCLUDING ALL PROFESSIONAL EMPLOYEES,
EMPLOYEES VOTING IN VOTING
GROUP (1), TEMPORARY AND CONFIDENTIAL EMPLOYEES, PUBLIC BUILDINGS
SERVICE WAGE GRADE EMPLOYEES
LOCATED IN THE U.S. POST OFFICE AND COURT HOUSE, TRENTON, NEW JERSEY,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS, AND
SUPERVISORS AND GUARDS AS DEFINED IN THE ORDER.
THE EMPLOYEES IN VOTING GROUP (A) SHALL VOTE WHETHER THEY DESIRE TO
BE REPRESENTED BY THE AFGE, THE NAGE, OR NEITHER. IF A MAJORITY OF THE
EMPLOYEES SELECTS THE NAGE, THE LABOR ORGANIZATION SEEKING TO REPRESENT
THEM IN A SEPARATE UNIT, THEY WILL BE TAKEN TO HAVE INDICATED THEIR
DESIRE TO BE REPRESENTED SEPARATELY IN SUCH UNIT. HOWEVER, IF A
MAJORITY OF EMPLOYEES VOTING IN GROUP (A) DOES NOT VOTE FOR THE NAGE,
THE BALLOTS OF THE EMPLOYEES IN SUCH VOTING GROUP WILL BE POOLED WITH
THOSE OF THE EMPLOYEES IN VOTING GROUP (C). /17/
THE EMPLOYEES IN PROFESSIONAL VOTING GROUP (B) 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 THE AFGE. IN THE EVENT THAT A
MAJORITY OF THE VALID VOTES OF VOTING GROUP (B) ARE CAST IN FAVOR OF
INCLUSION IN THE SAME UNIT AS NONPROFESSIONAL EMPLOYEES, THE BALLOTS OF
VOTING GROUP (B) SHALL BE COMBINED WITH THOSE OF VOTING GROUP (C).
UNLESS A MAJORITY OF THE VALID VOTES OF VOTING GROUP (B) 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 APPROPRIATE AREA
ADMINISTRATOR INDICATING WHETHER OR NOT THE AFGE WAS SELECTED BY THE
EMPLOYEES IN THE PROFESSIONAL UNIT.
THE EMPLOYEES IN VOTING GROUP (C) SHALL VOTE WHETHER OR NOT THEY
DESIRE TO BE REPRESENTED BY THE AFGE. /18/
ELECTIONS BY SECRET BALLOT SHALL BE CONDUCTED AMONG EMPLOYEES IN THE
VOTING GROUPS DESCRIBED ABOVE, AS EARLY AS POSSIBLE, BUT NOT LATER THAN
SIXTY (60) DAYS FROM THE DATE BELOW. 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 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 TO VOTE IN VOTING GROUP (A) SHALL VOTE WHETHER THEY
WISH TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, DISTRICT 2,
COUNCIL OF GENERAL SERVICES ADMINISTRATION LOCALS; BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R2-7; OR BY NEITHER. THOSE
ELIGIBLE TO VOTE IN VOTING GROUP (B) SHALL VOTE WHETHER OR NOT THEY WISH
TO BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, DISTRICT 2,
COUNCIL OF GENERAL SERVICES ADMINISTRATION LOCALS.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ THE PETITION IN THE SUBJECT CASE PREVIOUSLY WAS CONSOLIDATED FOR
HEARING WITH A PETITION FILED BY LOCAL 71-71A, INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO, (IUOE). DURING THE HEARING, THE IUOE
REQUESTED THAT ITS PETITION BE WITHDRAWN. ITS WITHDRAWAL REQUEST
SUBSEQUENTLY WAS APPROVED BY THE ASSISTANT REGIONAL DIRECTOR.
/2/ ALTHOUGH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, HEREIN
CALLED NFFE, DID NOT INTERVENE IN THE SUBJECT PROCEEDING PURSUANT TO
SECTION 202.5(C) OF THE ASSISTANT SECRETARY'S REGULATIONS, THE ASSISTANT
REGIONAL DIRECTOR ALLOWED THE NFFE TO PARTICIPATE IN THE HEARING AS A
"PARTY-IN-INTEREST" ON THE BASIS OF NEGOTIATED AGREEMENTS EXISTING
BETWEEN THE ACTIVITY AND NFFE LOCALS 1557 AND 907 WHICH ALLEGEDLY
ENCOMPASSED CERTAIN EMPLOYEES IN THE PETITIONED FOR UNIT.
/3/ THE UNIT DESCRIPTION APPEARS ESSENTIALLY AS AMENDED AT THE
HEARING.
/4/ THE NAGE INDICATED THAT IF THE ASSISTANT SECRETARY DETERMINED
THAT THE PETITIONED FOR REGIONWIDE UNIT WAS APPROPRIATE, INCLUDING THE
EXISTING UNIT REPRESENTED BY THE NAGE WITHIN REGION 2, IT WOULD BE
WILLING TO PARTICIPATE IN AN ELECTION IN SUCH UNIT.
/5/ AS NOTED ABOVE, GUARD EMPLOYEES IN THIS LATTER UNIT, WHICH WAS
CERTIFIED ON MARCH 8, 1973, ARE SPECIFICALLY EXCLUDED FROM THE UNIT
SOUGHT BY PETITION HEREIN.
/6/ THESE AGREEMENTS COVER EMPLOYEES IN UNITS REPRESENTED BY AFGE
LOCAL 2041 (BELLE MEAD, NEW JERSEY); LOCAL 2658 (BAYONNE, NEW JERSEY);
LOCAL 2431 (PBS PROFESSIONAL EMPLOYEES, NEW YORK, NEW YORK); AND LOCAL
2431 (PRINTING PLANT EMPLOYEES, NEW YORK CITY, NEW YORK).
/7/ CF. U.S. DEPARTMENT OF DEFENSE, DOD OVERSEAS DEPENDENT SCHOOLS,
A/SLMR NO. 110.
/8/ THE ACTIVITY ALSO ARGUED THAT THIS NEGOTIATED AGREEMENT WAS
DEFECTIVE BECAUSE "IT IS A NONSUBSTANTIVE RECOGNITION AGREEMENT AND, AS
SUCH, DOES NOT FOSTER THE PURPOSES OF THE ORDER". ADDITIONALLY, THE
ACTIVITY CONTENDED THAT THE AGREEMENT "COMES IN CONFLICT" WITH THE
REQUIREMENTS OF SECTION 13 OF THE ORDER. IN VIEW OF MY CONCLUSIONS WITH
RESPECT TO THE TIMELINESS OF THE INSTANT PETITION, I DEEM IT UNNECESSARY
TO MAKE ANY FINDINGS WITH REGARD TO THE ACTIVITY'S FOREGOING
CONTENTIONS.
/9/ AS NOTED ABOVE AT FOOTNOTE 2, THE NFFE DID NOT INTERVENE IN THE
SUBJECT PROCEEDING PURSUANT TO SECTION 202.5(C) OF THE ASSISTANT
SECRETARY'S REGULATIONS. ACCORDINGLY, A SELF-DETERMINATION ELECTION IN
THE UNIT AT THE ACTIVITY'S SCOTIA, NEW YORK FACILITY WITH THE NFFE ON
THE BALLOT WOULD BE INAPPROPRIATE.
/10/ SEE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 122 IN WHICH IT WAS STATED THAT "THE
EMPLOYEES IN SUCH EXISTING UNITS WOULD VOTE WHETHER OR NOT THEY DESIRE
TO CONTINUE TO BE REPRESENTED IN THEIR UNIT BY THEIR CURRENT EXCLUSIVE
BARGAINING REPRESENTATIVE. IF A MAJORITY INDICATE SUCH A DESIRE, THEIR
EXISTING UNIT WOULD REMAIN INTACT. HOWEVER, IF A MAJORITY OF THESE
EMPLOYEES DO NOT VOTE FOR THE LABOR ORGANIZATION WHICH REPRESENTS THEM
CURRENTLY, THEIR BALLOTS WOULD THEN BE POOLED WITH THOSE OF THE
EMPLOYEES VOTING IN ANY UNIT FOUND APPROPRIATE . . ."
/11/ CF. FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION, A/SLMR NO. 173.
/12/ THE FIELD OFFICE CONCEPT EXISTS ONLY WITHIN THE PBS.
/13/ IN ACCORDANCE WITH THE HOLDING IN DEPARTMENT OF THE ARMY, U.S.
ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, A/SLMR NO. 83, BY
PETITIONING FOR EXCLUSIVE RECOGNITION AND PROCEEDING TO AN ELECTION IN A
REGIONWIDE UNIT ENCOMPASSING UNITS FOR WHICH THE AFGE IS THE EXCLUSIVE
REPRESENTATIVE, THE AFGE WILL, IN EFFECT, HAVE WAIVED ITS EXCLUSIVE
RECOGNITION STATUS WITH RESPECT TO THE EMPLOYEES IN THOSE
LESS-COMPREHENSIVE UNITS, AND THEREFORE, 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.
/14/ THE JURISDICTION OF THE NARS COMMISSIONER IN REGION 2 INCLUDES
REGION 1 NARS FUNCTIONS, AS THERE IS NO NARS COMMISSIONER IN REGION 1.
/15/ THIS DIRECTIVE PRESENTLY IS AWAITING IMPLEMENTATION BY REGION 1.
/16/ THE PARTIES STIPULATED THAT EMPLOYEES CLASSIFIED AS ARCHITECT,
ELECTRICAL ENGINEER, MECHANICAL ENGINEER, ACCOUNTANT, STRUCTURAL
ENGINEER, ATTORNEY, LIBRARIAN, CHEMIST, ARCHIVIST, INDUSTRIAL ENGINEER
AND URBAN PLANNER ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE
EXECUTIVE ORDER. AS THERE IS NO EVIDENCE IN THE RECORD WHICH INDICATES
THAT THE PARTIES' STIPULATION WAS IMPROPER, I FIND THAT EMPLOYEES IN
THESE CLASSIFICATIONS ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF
THE ORDER. THE PARTIES ALSO STIPULATED AS TO THE EXCLUSION OF TEMPORARY
EMPLOYEES AND CONFIDENTIAL EMPLOYEES. INASMUCH AS THERE IS NO EVIDENCE
IN THE RECORD WHICH INDICATES THAT THE PARTIES' STIPULATIONS IN THIS
REGARD WERE IMPROPER, I FIND THAT EMPLOYEES IN THESE CLASSIFICATIONS
ALSO SHOULD BE EXCLUDED FROM THE UNIT FOUND APPROPRIATE.
/17/ IF THE BALLOTS OF VOTING GROUP (A) ARE POOLED WITH THOSE OF
VOTING GROUP (C) THEY ARE TO BE TALLIED IN THE FOLLOWING MANNER: IN
VOTING GROUP (A) THE VOTES FOR THE NAGE, THE LABOR ORGANIZATION SEEKING
A SEPARATE UNIT, SHALL BE COUNTED AS PART OF THE TOTAL NUMBER OF VALID
VOTES CAST BUT NEITHER FOR NOR AGAINST THE AFGE, THE LABOR ORGANIZATION
SEEKING TO REPRESENT THE REGIONWIDE UNIT. ALL OTHER VOTES ARE TO BE
ACCORDED THEIR FACE VALUE. I FIND THAT ANY UNIT RESULTING FROM A
POOLING OF VOTES AS DESCRIBED ABOVE CONSTITUTE AN APPROPRIATE UNIT FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER.
/18/ I AM ADVISED ADMINISTRATIVELY THAT THE NAGE DOES NOT HAVE THE
PRESCRIBED SHOWING OF INTEREST TO SUPPORT AN INTERVENTION IN THE UNIT
FOUND APPROPRIATE, AS DESCRIBED ABOVE IN VOTING GROUP (C).
4 A/SLMR 357; P. 149; CASE NO. 22-3618(RO); FEBRUARY 28, 1974.
VETERANS ADMINISTRATION,
VETERANS BENEFIT OFFICE
A/SLMR NO. 357
THE PETITIONER, NATIONAL ALLIANCE OF POSTAL AND FEDERAL EMPLOYEES,
LOCAL 211, (NAPFE) SOUGHT AN ELECTION IN A UNIT OF ALL NONSUPERVISORY,
NONPROFESSIONAL EMPLOYEES OF THE ADMINISTRATIVE DIVISION OF THE VETERANS
BENEFIT OFFICE, VETERANS ADMINISTRATION, WASHINGTON, D.C. THE ACTIVITY
CONTENDED THAT THE REQUESTED UNIT WAS INAPPROPRIATE BECAUSE THE OTHER
FIVE DIVISIONS AT THE VETERANS BENEFIT OFFICE ARE HIGHLY INTEGRATED WITH
THE ADMINISTRATIVE DIVISION; THE EMPLOYEES IN THE PETITIONED FOR UNIT
DO NOT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE
AND DISTINCT FROM OTHER EMPLOYEES OF THE VETERANS BENEFIT OFFICE; AND
SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS NOT
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN THIS
CONNECTION, HE NOTED THAT ALL OF THE ACTIVITY'S EMPLOYEES, INCLUDING
THOSE IN THE UNIT SOUGHT, ARE ENGAGED IN A COMMON MISSION WHICH REQUIRES
A CLOSE WORKING RELATIONSHIP BETWEEN ADMINISTRATIVE DIVISION EMPLOYEES
AND THOSE OF THE OTHER FIVE DIVISIONS OF THE ACTIVITY. MOREOVER, HE
NOTED THAT THE EVIDENCE ESTABLISHED THAT MUCH OF THE WORK OF THE
ADMINISTRATIVE DIVISION AFFECTS, AND IS AFFECTED BY, THE PACE AND
SCHEDULING OF WORK PERFORMED IN THE OTHER DIVISIONS, THAT EMPLOYEES OF
THE ADMINISTRATIVE DIVISION HAVE EXTENSIVE WORK CONTACTS WITH EMPLOYEES
OF THE ACTIVITY'S OTHER DIVISIONS, AND THAT THERE HAVE BEEN NUMEROUS
TRANSFERS OF EMPLOYEES BETWEEN THE ADMINISTRATIVE DIVISION AND THE OTHER
ACTIVITY DIVISIONS WHICH CONTAIN SEVERAL OF THE SAME JOB CLASSIFICATIONS
AS ARE FOUND IN THE ADMINISTRATIVE DIVISION.
AS THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES IN THE PETITIONED
FOR UNIT DID NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST
SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE ACTIVITY, AND AS SUCH
A FRAGMENTED UNIT, IN HIS VIEW, WILL NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, HE ORDERED THAT THE NAPFE'S PETITION BE
DISMISSED.
VETERANS ADMINISTRATION,
VETERANS BENEFIT OFFICE
AND
NATIONAL ALLIANCE OF POSTAL
AND FEDERAL EMPLOYEES, LOCAL 211
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER DONALD K. CLARK.
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, NATIONAL ALLIANCE OF POSTAL AND FEDERAL
EMPLOYEES, LOCAL 211, HEREIN CALLED NAPFE, SEEKS AN ELECTION IN A UNIT
OF ALL NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES OF THE VETERANS
ADMINISTRATION, VETERANS BENEFIT OFFICE, ADMINISTRATIVE DIVISION,
WASHINGTON, D.C. THE ACTIVITY CONTENDS THAT THE PROPOSED UNIT IS
INAPPROPRIATE. IN THIS REGARD, IT ASSERTS THAT BECAUSE THE
ADMINISTRATIVE DIVISION AND THE OTHER FIVE DIVISIONS OF THE VETERANS
BENEFIT OFFICE IN WASHINGTON, D.C., ARE HIGHLY INTEGRATED, THE EMPLOYEES
IN THE PETITIONED FOR UNIT DO NOT POSSESS A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE
VETERANS BENEFIT OFFICE. SUCH A FRAGMENTED UNIT, IN THE ACTIVITY'S
VIEW, WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS.
THE ACTIVITY, WHICH EMPLOYS APPROXIMATELY 409 EMPLOYEES, IS HEADED BY
A DIRECTOR AND IS ANALOGOUS TO THE VETERANS ADMINISTRATION'S 59 REGIONAL
OFFICES. /1/ IT PROCESSES VARIOUS CLAIMS FOR VETERANS BENEFITS AND, IN
GENERAL, HANDLES ALL VETERANS BENEFITS ASIDE FROM THOSE INVOLVING HEALTH
CARE. IN ADDITION TO THE ADMINISTRATIVE DIVISION, WHOSE EMPLOYEES THE
NAPFE SEEKS TO REPRESENT, THE ACTIVITY HAS (1) A FINANCE AND DATA
PROCESSING DIVISION WITH AN AUTHORIZED STRENGTH OF 58 EMPLOYEES; (2) A
PERSONNEL DIVISION WITH FIVE EMPLOYEES; (3) A VETERANS ASSISTANCE
DIVISION WITH 78 EMPLOYEES; (4) AN ADJUDICATION DIVISION WITH 122
EMPLOYEES; AND (5) A LOAN GUARANTEE DIVISION WITH 34 EMPLOYEES. THE
OFFICE OF THE DIRECTOR OF THE ACTIVITY CONTAINS EIGHT EMPLOYEES.
THE ADMINISTRATIVE DIVISION OF THE ACTIVITY HAS AN AUTHORIZED
STRENGTH OF 110 EMPLOYEES AND, AT PRESENT, THERE ARE ACTUALLY 124
EMPLOYEES IN THE DIVISION OF WHOM APPROXIMATELY 85 ARE IN CLERICAL
POSITIONS. THROUGHOUT ALL OF THE DIVISIONS OF THE VETERANS BENEFIT
OFFICE THERE ARE APPROXIMATELY 110 EMPLOYEES IN CLERICAL POSITIONS,
INCLUDING THE 85 EMPLOYED IN THE ADMINISTRATIVE DIVISION. THE
ADMINISTRATIVE DIVISION CONTAINS A RECORDS SECTION, A CENTRALIZED
TRANSCRIBING UNIT, AND AN OFFICES SERVICES SECTION. ITS EMPLOYEES
PERFORM, AMONG OTHER THINGS, GRAPHIC ARTS AND OTHER GENERAL SERVICES FOR
THE VETERANS BENEFIT OFFICE, INCLUDING THE OPERATION OF A MESSENGER
SERVICE. THE RECORDS SECTION OF THE DIVISION PROCESSES MAIL, DISPATCHES
FOLDERS TO THE APPROPRIATE OPERATING DIVISIONS, AND PREPARES, MAINTAINS,
AND SERVICES VARIOUS RECORDS. EMPLOYEES FROM THIS SECTION ARE LOCATED
ON THE 3RD, 4TH, 8TH AND 9TH FLOORS OF THE ACTIVITY'S BUILDING. THE
CENTRALIZED TRANSCRIBING UNIT SERVES AS A TYPING POOL FOR THE ACTIVITY.
IN THIS REGARD, THE RECORD REVEALS THAT ALTHOUGH THERE ARE CLERK-TYPISTS
ASSIGNED TO SEVERAL OTHER DIVISIONS, THE CENTRALIZED TRANSCRIBING UNIT
PERFORMS TYPING FOR THE ACTIVITY'S FIVE OTHER DIVISIONS. THE OFFICES
SERVICES SECTION OF THE DIVISION CONTAINS CORRESPONDENT UNITS, A
TELETYPE UNIT, A MAILROOM, AND A PUBLICATION UNIT. EMPLOYEES OF THIS
SECTION ARE LOCATED IN AREAS ON THREE DIFFERENT FLOORS OF THE ACTIVITY'S
BUILDING. IN SUM, THEREFORE, EMPLOYEES IN THE ADMINISTRATIVE DIVISION
ARE LOCATED ON SIX OF THE NINE FLOORS IN THE BUILDING WHICH HOUSES THE
ACTIVITY AND THEY PROVIDE VARIOUS SERVICES FOR THE OTHER DIVISIONS OF
THE ACTIVITY.
NEARLY ALL OF THE EMPLOYEES IN THE UNIT SOUGHT ARE AT THE GS-2 TO
GS-5 LEVELS AND ARE CLASSIFIED AS CLERK-TYPISTS, FILE CLERKS AND MAIL
CLERKS. ALSO, WITHIN THE CLAIMED UNIT ARE TWO OFFICE MACHINE OPERATORS
AND FOUR TELETYPISTS. THE EVIDENCE ESTABLISHES THAT THERE IS
CONSIDERABLE DAILY CONTACT BETWEEN EMPLOYEES OF THE ADMINISTRATIVE
DIVISION AND THE OTHER EMPLOYEES OF THE ACTIVITY. THUS, AS NOTED ABOVE,
ADMINISTRATIVE DIVISION EMPLOYEES ARE LOCATED IN VARIOUS AREAS
THROUGHOUT THE BUILDING HOUSING THE ACTIVITY AND, IN ADDITION,
"SEARCHERS" FROM THE ADMINISTRATIVE DIVISION CIRCULATE THROUGHOUT THE
BUILDING WHEN A PARTICULAR FILE MUST BE LOCATED. MOREOVER,
ADMINISTRATIVE DIVISION EMPLOYEES RECEIVE A DEGREE OF GUIDANCE FROM
SUPERVISORS OF OTHER DIVISIONS. /2/
THE RECORD REVEALS THAT ALTHOUGH THERE IS LITTLE INTERCHANGE OF
EMPLOYEES BETWEEN THE ADMINISTRATIVE DIVISION AND OTHER DIVISIONS OF THE
ACTIVITY, THERE HAS BEEN A CONSIDERABLE NUMBER OF EMPLOYEE TRANSFERS
INVOLVING ADMINISTRATIVE DIVISION EMPLOYEES. IN THIS CONNECTION, OF THE
51 TRANSFERS WITHIN THE ACTIVITY SINCE JANUARY 1970, 31 HAVE INVOLVED
ADMINISTRATIVE DIVISION EMPLOYEES. /3/
BASED ON THE FOREGOING CIRCUMSTANCES, I FIND THAT THE UNIT SOUGHT BY
THE NAPFE IS NOT APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION
UNDER THE ORDER. THUS, THE RECORD REFLECTS THAT ALL EMPLOYEES OF THE
ACTIVITY, INCLUDING THOSE IN THE ADMINISTRATIVE DIVISION, ARE ENGAGED IN
A COMMON MISSION WHICH REQUIRES A CLOSE WORKING RELATIONSHIP. IN THIS
REGARD, IT WAS NOTED PARTICULARLY THAT EMPLOYEES OF THE ADMINISTRATIVE
DIVISION HAVE EXTENSIVE WORK CONTACTS WITH EMPLOYEES OF THE OTHER FIVE
DIVISIONS OF THE ACTIVITY, AND THAT THESE CONTACTS OCCUR BECAUSE OF THE
NATURE OF MANY OF THE JOBS IN THE ADMINISTRATIVE DIVISION WHICH INVOLVE
DEALING WITH EMPLOYEES OF THE OTHER DIVISIONS AND BECAUSE OF THE FACT
THAT EMPLOYEES OF THE ADMINISTRATIVE DIVISION ARE SCATTERED AMONG OTHER
ACTIVITY EMPLOYEES LOCATED THROUGHOUT THE BUILDING. MOREOVER, THE
EVIDENCE ESTABLISHES THAT MUCH OF THE WORK OF THE ADMINISTRATIVE
DIVISION AFFECTS AND IS AFFECTED BY THE PACE AND SCHEDULING OF WORK
PERFORMED IN THE OTHER DIVISIONS OF THE ACTIVITY. FINALLY, THERE IS
EVIDENCE OF NUMEROUS TRANSFERS OF EMPLOYEES BETWEEN THE ADMINISTRATIVE
DIVISION AND THE OTHER DIVISIONS OF THE ACTIVITY, WHICH DIVISIONS
CONTAIN SEVERAL OF THE SAME JOB CLASSIFICATIONS AS ARE FOUND IN THE
ADMINISTRATIVE DIVISION.
UNDER ALL OF THESE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE
ADMINISTRATIVE DIVISION DO NOT SHARE A CLEAR AND IDENTIFIABLE COMMUNITY
OF INTEREST SEPARATE AND DISTINCT FROM OTHER EMPLOYEES OF THE ACTIVITY
AND THAT SUCH A FRAGMENTED UNIT WILL NOT PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL ORDER THAT THE
NAPFE'S PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 22-3618(RO) BE,
AND HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ THE DIFFERENT TITLE RESULTS FROM THE ACTIVITY'S LOCATION IN
WASHINGTON, D.C., AND THE FACT THAT IT IS ASSIGNED CERTAIN
RESPONSIBILITIES, NOT RELEVANT TO THE INSTANT CASE, IN ADDITION TO THOSE
ASSIGNED REGIONAL OFFICES.
/2/ IN FACT, SUPERVISORS FROM OTHER DIVISIONS HAVE RECOMMENDED AWARDS
FOR ADMINISTRATIVE DIVISION EMPLOYEES BASED ON THEIR OBSERVATION OF AND
CONTACTS WITH SUCH EMPLOYEES.
/3/ TWENTY-SEVEN OF THESE TRANSFERS INVOLVED EMPLOYEES LEAVING THE
ADMINISTRATIVE DIVISION FOR OTHER COMPONENTS OF THE ACTIVITY.
4 A/SLMR 356; P. 147; CASE NO. 70-2480; FEBRUARY 28, 1974.
DEPARTMENT OF THE AIR FORCE,
MCCLELLAN AIR FORCE BASE,
SACRAMENTO, CALIFORNIA
A/SLMR NO. 356
THIS CASE INVOLVED A PETITION FILED BY WESTERN COUNCIL OF ENGINEERS
(PETITIONER) SEEKING AN ELECTION IN A UNIT OF ALL PROFESSIONAL
ENGINEERS, PHYSICAL SCIENTISTS, MATHEMATICIANS AND STATISTICIANS
SERVICED BY THE CONSOLIDATED CIVILIAN PERSONNEL OFFICE AND LOCATED AT
THE ACTIVITY. THE LATTER CONTENDED THAT THE PETITIONED FOR UNIT IS NOT
APPROPRIATE BECAUSE IT INCLUDES EMPLOYEES WHO DO NOT SHARE A COMMUNITY
OF INTEREST SEPARATE AND DISTINCT FROM THAT OF OTHER EMPLOYEES OF THE
ACTIVITY AND, FURTHER, THAT THE UNIT SOUGHT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED
THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT CONSTITUTE A UNIQUE,
FUNCTIONAL AND HOMOGENEOUS GROUPING OF EMPLOYEES WHO ENJOY A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM ALL OTHER
EMPLOYEES OF THE ACTIVITY. IN REACHING THIS CONCLUSION, THE ASSISTANT
SECRETARY NOTED THAT THE EMPLOYEES IN THE UNIT SOUGHT ARE ENGAGED IN A
COMPLEX, HIGHLY INTEGRATED FUNCTION, UNDER COMMON OVERALL SUPERVISION,
AND ARE CHARGED WITH A COMMON MISSION. FURTHER, HE NOTED THAT THEY ARE
SUBJECT TO UNIFORM PERSONNEL POLICIES, ENJOY COMMON WORKING CONDITIONS
AND JOB BENEFITS, HAVE DIRECT JOB-RELATED CONTACTS WITH EACH OTHER AND,
HAVE A BASIC SIMILARITY OF JOB CLASSIFICATIONS AND SKILLS. IN FINDING
THAT THE PETITIONED FOR UNIT WOULD PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY NOTED THAT THE
ACTIVITY CURRENTLY RECOGNIZES ACTIVITY-WIDE UNITS OF NONPROFESSIONALS,
AS WELL AS A NUMBER OF LESS-COMPREHENSIVE UNITS, AND THAT THERE WAS NO
EVIDENCE THAT SUCH UNITS HAD FAILED TO PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, THE ASSISTANT SECRETARY
ORDERED AN ELECTION TO BE CONDUCTED.
DEPARTMENT OF THE AIR FORCE,
MCCLELLAN AIR FORCE BASE,
SACRAMENTO, CALIFORNIA
AND
WESTERN COUNCIL OF ENGINEERS
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ROBERT M. SICHON.
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 PETITIONER, WESTERN COUNCIL OF ENGINEERS, SEEKS AN ELECTION
IN A UNIT CONSISTING OF "ALL ENGINEERS AND SCIENTISTS WORKING IN THE
PRIMARY PROFESSIONAL SERIES EMPLOYED OR SERVICED BY THE CONSOLIDATED
CIVILIAN PERSONNEL OFFICE AT MCCLELLAN AIR FORCE BASE, SACRAMENTO,
CALIFORNIA," EXCLUDING ALL NONPROFESSIONAL EMPLOYEES, MANAGEMENT
OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, SUPERVISORS AND GUARDS AS DEFINED UNDER
EXECUTIVE ORDER 11491, AS AMENDED. /1/ THE ACTIVITY TAKES THE POSITION
THAT THE UNIT SOUGHT IS INAPPROPRIATE BECAUSE THE EMPLOYEES COVERED BY
THE PETITION DO NOT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT
FROM OTHER EMPLOYEES OF THE ACTIVITY AND BECAUSE THE PETITIONED FOR UNIT
WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS.
THE EVIDENCE ESTABLISHES THAT THE ACTIVITY INCLUDES THE SACRAMENTO
AIR MATERIEL AREA AND THE MCCLELLAN AIR FORCE BASE AND THAT IT IS
PRIMARILY ENGAGED IN MATERIEL PROCUREMENT AND THE PRODUCTION AND
DISTRIBUTION OF ASSIGNED EQUIPMENT, COMMODITIES AND SERVICES TO AIR
FORCE UNITS LOCATED WORLD-WIDE. IT IS UNDER THE AUTHORITY OF A
COMMANDER AND VICE-COMMANDER AND ORGANIZATIONALLY IS COMPOSED OF FOUR
DIRECTORATES WHICH REPORT DIRECTLY TO THE COMMANDER-- THE DIRECTORATE OF
MATERIEL MANAGEMENT, THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, THE
DIRECTORATE OF DISTRIBUTION AND THE DIRECTORATE OF MAINTENANCE. EACH
DIRECTORATE IS SUBDIVIDED INTO SEVEN OR MORE DIVISIONS AND, IN TURN,
EACH DIVISION IS SUBDIVIDED INTO TWO OR MORE BRANCHES OR DETACHMENTS.
ALSO REPORTING DIRECTLY TO THE COMMANDER ARE EIGHT STAFF OFFICES AND
FOUR SUPPORT OFFICES /2/ AS WELL AS THE COMMANDING OFFICER OF MCCLELLAN
AIR FORCE BASE WHO IS IN CHARGE OF SOME FIFTEEN STAFF AND SUPPORT
ORGANIZATIONS. /3/ IN ADDITION, THERE ARE THIRTY TENANT ORGANIZATIONS
LOCATED AT THE ACTIVITY WHICH, ALTHOUGH NOT SUBJECT TO THE AUTHORITY OF
THE COMMANDER IN THEIR OPERATIONS, ARE SERVICED BY THE CONSOLIDATED
CIVILIAN PERSONNEL OFFICE OF THE ACTIVITY. THE RECORD DISCLOSES THAT
THE ACTIVITY EMPLOYS APPROXIMATELY 15,000 CIVILIAN EMPLOYEES IN ADDITION
TO APPROXIMATELY 5,000 MILITARY PERSONNEL. IF THE CIVILIAN COMPLEMENT,
APPROXIMATELY 346 ARE ALLEGED TO BE NONSUPERVISORY PROFESSIONAL
EMPLOYEES. THE PETITIONED FOR UNIT WOULD INCLUDE APPROXIMATELY 306
PROFESSIONAL EMPLOYEES /4/ WHO ARE LOCATED ORGANIZATIONALLY THROUGHOUT
THE ACTIVITY AS WELL AS IN TWO OF THE TENANT ORGANIZATIONS.
THE RECORD REVEALS THAT THE ACTIVITY IS A LARGE, COMPLEX, HIGHLY
INTEGRATED ORGANIZATION COMPOSED OF A NUMBER OF SMALLER ORGANIZATIONS
HAVING DIVERSE RESPONSIBILITIES AND MISSIONS, BUT EACH DEPENDENT UPON
THE OTHERS IN ACHIEVING ITS OWN MISSION AND/OR ACHIEVING THE COMMON
MISSION OF THE ACTIVITY. THE EVIDENCE ESTABLISHES THAT THE ACTIVITY'S
MISSION REQUIRES THE COORDINATED EFFORTS OF EACH OF ITS DIRECTORATES AND
SUPPORT ORGANIZATIONS AND THE SUCCESS OF ITS MISSION IS DEPENDENT UPON
THEIR INTERRELATIONSHIP, COOPERATION AND TEAMWORK. ALTHOUGH EACH
DIRECTORATE PERFORMS ITS OWN FUNCTION, TESTIMONY DISCLOSES THAT, THROUGH
THE INTEGRATED WORK PROCESS, EACH IS DEPENDENT UPON THE OTHER FOR THE
SUCCESSFUL COMPLETION OF THE PARTICULAR SERVICE TO BE RENDERED. THE
RECORD REFLECTS THAT IN ACCOMPLISHING THEIR PARTICULAR FUNCTIONS, THE
PETITIONED FOR EMPLOYEES GENERALLY HAVE DIRECT, JOB-RELATED CONTACTS
WITH EACH OTHER, REGARDLESS OF THEIR LOCATION AT THE ACTIVITY.
MOREOVER, THERE IS EVIDENCE OF SOME INTERCHANGE AND TRANSFER AMONG
EMPLOYEES OF THE PETITIONED FOR UNIT THROUGHOUT THE DIRECTORATES,
DIVISIONS AND SUPPORT OFFICES.
ALTHOUGH THE PETITIONED FOR UNIT EMBRACES SOME 27 SEPARATE JOB
CLASSIFICATIONS, ALL OF THESE CLASSIFICATIONS ARE SIMILAR IN TERMS OF
REQUIRING A BASIC EDUCATION IN PHYSICAL SCIENCE AND MATHEMATICS AND THE
UTILIZATION OF A COMMON METHODOLOGY IN PROBLEM SOLVING. ANY
DISTINCTIONS BETWEEN THE VARIOUS CLASSIFICATIONS REFLECT SPECIALIZATION
IN THE APPLICATION OF THE BASIC EDUCATION AND SKILLS OF THE INDIVIDUAL
EMPLOYEE. THE RECORD ALSO DISCLOSES THAT ALL EMPLOYEES IN THE
PETITIONED FOR UNIT ARE SUBJECT TO COMMON OVERALL SUPERVISION AND,
GENERALLY, ENJOY COMMON PERSONNEL POLICIES, WORKING CONDITIONS, AND JOB
BENEFITS. FURTHER, THE AREA FOR CONSIDERATION FOR PROMOTION AND
REDUCTION-IN-FORCE FOR THE PETITIONED FOR EMPLOYEES IS ACTIVITY-WIDE.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT THE
EMPLOYEES IN THE PETITIONED FOR UNIT CONSTITUTE A UNIQUE, FUNCTIONAL AND
HOMOGENEOUS GROUPING OF EMPLOYEES WHO ENJOY A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM ALL OTHER EMPLOYEES OF
THE ACTIVITY. THUS, THEY ARE ENGAGED IN A COMPLEX, HIGHLY INTEGRATED
FUNCTION, UNDER COMMON OVERALL SUPERVISION AND ARE CHARGED WITH A COMMON
MISSION. FURTHER, THEY ARE SUBJECT TO UNIFORM PERSONNEL POLICIES, ENJOY
COMMON WORKING CONDITIONS AND JOB BENEFITS, HAVE DIRECT JOB-RELATED
CONTACTS WITH EACH OTHER AND HAVE A BASIC SIMILARITY OF JOB
CLASSIFICATIONS AND SKILLS. MOREOVER, I FIND THAT THE PETITIONED FOR
UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. IN THIS LATTER REGARD, IT WAS NOTED THAT THE ACTIVITY
CURRENTLY RECOGNIZES ACTIVITY-WIDE UNITS OF NONPROFESSIONAL EMPLOYEES AS
WELL AS NUMEROUS ACTIVITY-WIDE UNITS OF NONPROFESSIONAL EMPLOYEES AS
WELL AS NUMEROUS LESS-COMPREHENSIVE UNITS AND NO EVIDENCE WAS PRESENTED
THAT SUCH UNITS HAD FAILED TO PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY
OF AGENCY OPERATIONS. /5/ ACCORDINGLY, I FIND THAT THE UNIT SOUGHT IS
APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER
AND, THEREFORE, SHALL DIRECT AN ELECTION AMONG THE EMPLOYEES IN THE
FOLLOWING DESCRIBED UNIT:
ALL PROFESSIONAL ENGINEERS, PHYSICAL SCIENTISTS, MATHEMATICIANS AND
STATISTICIANS SERVICED
BY THE CONSOLIDATED CIVILIAN PERSONNEL OFFICE AND LOCATED AT
MCCLELLAN AIR FORCE BASE,
SACRAMENTO, CALIFORNIA, EXCLUDING ALL OTHER PROFESSIONAL EMPLOYEES,
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.
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 WESTERN COUNCIL OF
ENGINEERS.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ IN ITS PETITION, THE PETITIONER ENUMERATED SOME 27 SPECIFIC
CLASSIFICATIONS OF ENGINEERS, PHYSICAL SCIENTISTS, MATHEMATICIANS AND
STATISTICIANS WHICH ARE INCLUDED IN THE UNIT SOUGHT.
/2/ THE STAFF OFFICES INCLUDE THE INSPECTOR GENERAL, THE STAFF JUDGE
ADVOCATE, THE SMALL BUSINESS AND CONTRACTOR RELATIONS OFFICE, THE
HISTORICAL OFFICE, THE SAFETY OFFICE, THE LOCAL ACTIONS OFFICE, THE
MANAGEMENT ENGINEERING TEAM, AND THE DIRECTORATE OF PLANS AND PROGRAMS.
THE FOUR SUPPORT OFFICES INCLUDE THE ADVANCED SYSTEMS PROGRAM OFFICE
(DETACHMENT 51), THE PROJECT SUPPORT OFFICE (DETACHMENT 42), THE 2951ST
COMBAT LOGISTICS SUPPORT SQUADRON, AND THE UNITED STATES AIR FORCE
MEDICAL CLINIC.
/3/ THESE INCLUDE, BUT ARE NOT LIMITED TO, THE PERSONNEL DIVISION,
COMPTROLLER, SPECIAL SERVICES DIVISION, CIVIL ENGINEERING DIVISION AND
SECURITY POLICE DIVISION.
/4/ AT THE HEARING, THE PARTIES STIPULATED THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT ARE PROFESSIONAL EMPLOYEES WITHIN THE MEANING OF THE
DEFINITION SET FORTH IN DEPARTMENT OF THE INTERIOR, BUREAU OF LAND
MANAGEMENT, RIVERSIDE DISTRICT AND LAND OFFICE, A/SLMR NO. 170.
/5/ THE AFGE CURRENTLY REPRESENTS THE FOLLOWING THREE BARGAINING
UNITS OF NONSUPERVISORY, NONPROFESSIONAL EMPLOYEES UNDER ONE NEGOTIATED
AGREEMENTS: A UNIT OF EMPLOYEES IN THE REPRODUCTION BRANCH; A UNIT OF
ALL WAGE GRADE EMPLOYEES, ACTIVITY-WIDE, INCLUDING TENANT ORGANIZATIONS;
AND A UNIT OF ALL GENERAL SCHEDULE EMPLOYEES, ACTIVITY-WIDE, INCLUDING
TENANT ORGANIZATIONS. ADDITIONALLY, THE INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS REPRESENTS A UNIT OF FIREFIGHTERS; THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES REPRESENTS A UNIT OF GUARDS; THE
TECHNICAL SKILLS ASSOCIATION REPRESENTS A UNIT OF TECHNICIANS IN THE
PETROLEUM BRANCH; THE AMERICAN FEDERATION OF TECHNICAL ENGINEERS
REPRESENTS A UNIT OF TECHNICIANS IN THE PRODUCTION AND QUALITY BRANCHES
OF THE ACCESSORIES DIVISION; AND THE CALIFORNIA NURSES ASSOCIATION
REPRESENTS A UNIT OF NURSES IN THE CIVILIAN EMPLOYEE HEALTH SERVICES
BRANCH OF THE CLINIC.
4 A/SLMR 355; P. 140; CASE NO. 41-3171(CA); FEBRUARY 28, 1974.
TENNESSEE AIR NATIONAL GUARD,
NASHVILLE, TENNESSEE
A/SLMR NO. 355
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVES A COMPLAINT FILED BY
THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES (COMPLAINANT) ALLEGING THAT
THE TENNESSEE AIR NATIONAL GUARD (RESPONDENT) VIOLATED SECTION 19(A)(1)
OF THE EXECUTIVE ORDER BY REFUSING TO ALLOW THE COMPLAINANT'S
NON-EMPLOYEE REPRESENTATIVES TO DISTRIBUTE LITERATURE IN THE
RESPONDENT'S PARKING LOTS AND TO OTHERWISE CONDUCT A REPRESENTATION
CAMPAIGN.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT AT THE TIME OF THE
COMPLAINANT'S REQUEST FOR ACCESS TO THE RESPONDENT'S PREMISES BY ITS
NON-EMPLOYEE REPRESENTATIVES WERE TREATED IN A MANNER DIFFERENT FROM
NON-EMPLOYEE REPRESENTATIVES OF THE INCUMBENT LABOR ORGANIZATION,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE). UNDER THESE
CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT BY DENYING
NON-EMPLOYEE REPRESENTATIVES OF THE COMPLAINANT ACCESS TO ITS PARKING
LOTS AND PREMISES FOR THE PURPOSE OF CONDUCTING AN ORGANIZATIONAL
CAMPAIGN AMONG THE RESPONDENT'S EMPLOYEES, THE RESPONDENT DID NOT
INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THE
RIGHTS ASSURED THEM UNDER SECTION 1(A) OF THE ORDER OR OTHERWISE VIOLATE
SECTION 19(A)(1) OF THE ORDER. ACCORDINGLY, HE RECOMMENDED THAT THE
COMPLAINT BE DISMISSED.
UPON REVIEW OF THE ENTIRE RECORD IN THIS PROCEEDING, INCLUDING THE
REPORT AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE, AND NOTING
THE ABSENCE OF EXCEPTIONS, THE ASSISTANT SECRETARY ADOPTED THE FINDINGS,
CONCLUSIONS AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
TENNESSEE AIR NATIONAL GUARD,
NASHVILLE, TENNESSEE
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
ON NOVEMBER 9, 1973, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAS NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED
AND RECOMMENDING THAT THE COMPLAINT BE DISMISSED. 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 FINDINGS, CONCLUSIONS
AND RECOMMENDATION OF THE ADMINISTRATIVE LAW JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 41-3171(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
IN THE MATTER OF
TENNESSEE AIR NATIONAL GUARD
NASHVILLE, TENNESSEE,
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
JOSEPH MARTIN, JR.
FOURTH FLOOR
226 - THIRD AVENUE NORTH
NASHVILLE, TENNESSEE 37201
JOHN V. DONOVAN
5611 COLUMBIA PIKE
NASSIF BUILDING, ROOM 308
FALLS CHURCH, VIRGINIA 22204
GEORGE TILTON
1737 H STREET, N.W.
WASHINGTON, D.C. 20006
ROGER P. KAPLAN, GENERAL COUNSEL
SUITE 512 COLORADO BUILDING
1341 G STREET, N.W.
WASHINGTON, D.C. 20005
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT THAT WAS AMENDED ON FEBRUARY 26, 1973, BY THE NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (HEREINAFTER REFERRED TO AS NFFE AND/OR
COMPLAINANT), AGAINST THE TENNESSEE AIR NATIONAL GUARD (HEREINAFTER
REFERRED TO AS RESPONDENT) ALLEGING THAT THE RESPONDENT ENGAGED IN
CERTAIN CONDUCT VIOLATIVE OF SECTION 19(A)(1) OF EXECUTIVE ORDER 11491.
ESSENTIALLY THE COMPLAINT AS AMENDED, CHARGES THAT RESPONDENT COMMITTED
AN UNFAIR LABOR PRACTICE BY REFUSING TO ALLOW NFFE REPRESENTATIVES TO
DISTRIBUTE LITERATURE IN RESPONDENT'S PARKING LOTS AND TO OTHERWISE
CONDUCT A REPRESENTATION CAMPAIGN.
THE REGIONAL ADMINISTRATOR'S ORDER RESCHEDULING THE HEARING
DESIGNATED THE RESPONDENT, COMPLAINANT, AND THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES AS PARTIES TO THE PROCEEDING AND A HEARING WAS HELD
IN THE MATTER ON JUNE 14, 1973, AT NASHVILLE, TENNESSEE. ALL PARTIES
WERE REPRESENTED RELEVANT EVIDENCE ON THE ISSUES INVOLVED. BRIEFS WERE
FILED ON BEHALF OF COMPLAINANT AND RESPONDENT AND WERE DULY CONSIDERED
BY ME IN ARRIVING AT MY DETERMINATION IN THIS MATTER.
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 ISSUE PRESENTED IN THIS PROCEEDING IS WHETHER THE RESPONDENT
VIOLATED SECTION 19(A)(1) OF THE ORDER BY DENYING ACCESS OF ITS PREMISES
TO COMPLAINANT'S NON-EMPLOYEE ORGANIZERS IN NON-WORK AREAS ON NON-DUTY
HOURS SO AS TO DEPRIVE EMPLOYEES OF THEIR RIGHT TO BE INFORMED AND DENY
THEM FREEDOM TO MAKE A REASONED AND INFORMED CHOICE OF REPRESENTATIVE.
THE RESPONDENT AND NAGE URGE THAT COMPLAINANT DID NOT CARRY ITS
BURDEN OF SHOWING THAT IT MADE A DILIGENT EFFORT TO COMMUNICATE WITH
EMPLOYEES AWAY FROM RESPONDENT'S PREMISES; ALSO, THAT RESPONDENT WOULD
HAVE BEEN IN VIOLATION OF SECTION 19(A)(3) OF THE ORDER HAD IT GRANTED
COMPLAINANT'S REQUEST.
THE COMPLAINANT POSTULATES THAT NAGE HAD EXCLUSIVE RECOGNITION IN
ONLY TWO OF RESPONDENT'S INSTALLATIONS, THUS THE REMAINING INSTALLATIONS
WERE ON AN EQUAL BASIS; ALSO, THAT WHEN NAGE ATTEMPTED TO OBTAIN
STATEWIDE RECOGNITION IN ONE UNIT IT PUT THE TWO UNITS WHERE THEY HAD AN
EXCLUSIVE "ON THE LINE," AND THE EFFECT WAS TO WAIVE EXCLUSIVE
RECOGNITION AT THOSE INSTALLATIONS AND TO PUT THE PARTIES ON AN EQUAL
BASIS AT ALL INSTALLATIONS. DEPARTMENT OF THE TREASURY, BUREAU OF
CUSTOMS, BOSTON, MASSACHUSETTS, A/SLMR NO. 169 WAS CITED TO SUPPORT ITS
POSITION AND THE FOLLOWING WAS QUOTED AT PAGE 5 FROM THAT DECISION:
" . . . TO SUPPORT A CONTENTION THAT NON-EMPLOYEE ORGANIZERS SHOULD
BE ACCORDED PERSONAL
ACCESS . . . TO EMPLOYEES ON ACTIVITY PREMISES FOR THE PURPOSE OF
CAMPAIGNING, IT MUST BE
SHOWN THAT THE EMPLOYEES AT WHOM THE CAMPAIGNING IS DIRECTED ARE
INACCESSIBLE, THUS RENDERING
REASONABLE ATTEMPTS TO COMMUNICATE WITH THEM ON A DIRECT BASIS
OUTSIDE THE ACTIVITY'S PREMISES
INEFFECTIVE."
AT THE CLOSE OF COMPLAINANT'S PROOF AND UPON COMPLETION OF ALL
TESTIMONY AT THE HEARING THE RESPONDENT AGENCY AND NAGE MOVED TO DISMISS
THE PROCEEDING ON THE BASIS THAT THE COMPLAINANT HAD NOT SUSTAINED ITS
BURDEN OF PROOF UNDER SECTION 203.14 OF THE RULES AND REGULATIONS OF
PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT HAD
VIOLATED SECTION 19(A)(1) OF THE ORDER BY INTERFERING WITH, RESTRAINING
OR COERCING ANY EMPLOYEE IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
ORDER. I DID NOT CONSIDER IT APPROPRIATE TO RULE ON THE MOTION FROM THE
BENCH AND RESERVED JUDGMENT ON IT FOR CONSIDERATION IN MY DECISION.
EXCEPT AS TO WHETHER RESPONDENT'S EMPLOYEES WERE ACCESSIBLE THROUGH
ATTEMPTS TO COMMUNICATE WITH THEM BY COMPLAITANT'S AGENTS BY MEANS OTHER
THAN DIRECT PERSONAL ACCESS ON RESPONDENT'S PREMISES, THE MATERIAL FACTS
IN THIS PROCEEDING ARE NOT ESSENTIALLY IN DISPUTE. THE RESPONDENT WITH
FIVE ACTIVITIES LOCATED IN FOUR METROPOLITAN AREAS /1/ IN TENNESSEE TO
WIT; KNOXVILLE, CHATTANOOGA, NASHVILLE, AND MEMPHIS, IS RESPONSIBLE FOR
CONDUCTING FLIGHT OPERATIONS IN SUPPORT OF VARIOUS AIR FORCE COMMANDS;
PERFORMING WORK IN CONNECTION WITH MAINTENANCE REPAIR AND OPERATION OF
AIRCRAFT; MAINTAINING AND OPERATING A GROUND TO AIR COMMUNICATIONS
NETWORK; AND, ASSURING THAT ALL ACTIVITIES ARE TRAINED TO A STATE OF
COMBAT READINESS. /2/ THE RESPONDENT EMPLOYS APPROXIMATELY 475
EMPLOYEES AT THE FIVE LOCATIONS. AT TWO OF THE INSTALLATIONS, ALCOA AND
NASHVILLE, THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, HEREINAFTER
REFERRED TO AS NAGE AND/OR PARTY HAD EXCLUSIVE REPRESENTATION. IT IS
URGED BY THE COMPLAINANT THAT THESE EXCLUSIVE ACTIVITIES WERE, IN
ACCORDANCE WITH A STIPULATION ENTERED INTO BY THE PARTIES, "PUT ON THE
LINE" /3/ BY NAGE'S BID OR PETITION FILED ON OCTOBER 31, 1972, TO SEEK
EXCLUSIVE STATEWIDE RECOGNITION. AN ELECTION ON JANUARY 24, 1973,
RESULTED IN NAGE BEING SUCCESSFUL IN ITS ATTEMPT TO REPRESENT ALL 475
EMPLOYEES IN ONE STATEWIDE EXCLUSIVE UNIT.
NOTICE OF NAGE'S OCTOBER 31, 1972 PETITION FOR EXCLUSIVE
REPRESENTATION WAS POSTED AT THE CHATTANOOGA INSTALLATION ON NOVEMBER 4,
1972; MEMPHIS AND ALCOA ON NOVEMBER 6, 1972; NASHVILLE ON NOVEMBER 7,
1972; AND KNOXVILLE ON NOVEMBER 9, 1972, PURSUANT TO THE RULES AND
REGULATIONS OF THE ASSISTANT SECRETARY OF LABOR. WHILE POSTING WAS
BEING ACCOMPLISHED AT THE FIVE INSTALLATIONS, LAURENCE CHIVERS, REGIONAL
COORDINATOR AND ORGANIZER FOR COMPLAINANT, CONTACTED RESPONDENT'S
TECHNICIAN PERSONNEL REPRESENTATIVE AT THE NASHVILLE INSTALLATION ON
NOVEMBER 6, 1972, TO ARRANGE FOR SOLICITATION OF EMPLOYEES ON THE
PREMISES. AT THAT TIME MR. CHIVERS WAS AWARE THERE HAD BEEN NO POSTING
AT NASHVILLE. ABOUT 10:30 A.M., ON NOVEMBER 7, HE BEGAN PASSING OUT
LITERATURE WITHIN THE HEADQUARTERS COMPLEX AND IN THE PARKING AREAS.
ABOUT 2:30 P.M., HE WAS TOLD HE COULD NO LONGER DO SO. ON NOVEMBER 8,
1972, HE MET WITH RESPONDENT'S REPRESENTATIVES AND REQUESTED PERMISSION
OF RESPONDENT TO CONDUCT AN ORGANIZING CAMPAIGN WITH NON-EMPLOYEE
ORGANIZERS AMONG THE PETITIONED FOR EMPLOYEES BY DISTRIBUTING LITERATURE
AT THE INSTALLATIONS AND IN PARKING LOTS AT OFF AND AFTER DUTY HOURS IN
ORDER TO SECURE THE REQUIRED SHOWING OF INTEREST /4/ IN THE FORTHCOMING
ELECTION AS AN INTERESTED PARTY. /5/ THE COMPLAINANT WAS DENIED
PERMISSION TO CONDUCT AN ORGANIZING CAMPAIGN WITH NON-EMPLOYEE
ORGANIZERS AT THE AGENCY INSTALLATIONS. /6/ WILLIAM C. SMITH,
RESPONDENT'S ADJUTANT GENERAL, TESTIFIED THAT ACCESS TO ITS
INSTALLATIONS HAD PREVIOUSLY BEEN DENIED TO NAGE NON-EMPLOYEE ORGANIZERS
AND HE HAD BEEN INSTRUCTED THAT IF COMPLAINANT WAS AFFORDED ACCESS THE
RESPONDENT WOULD BE IN VIOLATION OF DEPARTMENT OF DEFENSE POLICY. BOB
CHAFFIN, DIRECTOR OF INTER-GOVERNMENTAL AND EMPLOYEE RELATIONS FOR THE
STATE OF TENNESEE, TESTIFIED THAT AT THE MEETING ON NOVEMBER 8, 1972, HE
ADVISED THE NFFE NON-EMPLOYEE REPRESENTATIVES PRESENT THAT THEY WERE
PERMITTED TO USE EMPLOYEE-REPRESENTATIVES TO DISTRIBUTE LITERATURE
DURING WORK HOURS ON NON-DUTY TIME IN NON-RESTRICTED AREAS, BUT THE
NON-EMPLOYEE REPRESENTATIVES COULD NOT ENTER THE PARKING LOTS. AN
INQUIRY WAS MADE IF THE AGENCY WOULD FURNISH A LIST OF EMPLOYEES WITH
NAMES, ADDRESSES AND TELEPHONE NUMBERS AND THEY WERE INFORMED THAT THE
NAMES AND BASES WHERE THE EMPLOYEES WORKED COULD BE FURNISHED BUT TO
INCLUDE ADDRESSED AND TELEPHONE NUMBERS WOULD BE IN VIOLATION OF
DEPARTMENT MANUAL. HE STATED THAT MR. CHIVERS REMARKED THAT THE
PERMISSIBLE LIST WOULD NOT DO ANY GOOD AT THAT LATE DATE, THAT THEY
MIGHT WANT IT LATER.
AT NASHVILLE, THE COMPLAINANTS EFFORT TO COMMUNICATE WITH EMPLOYEES
OCCURRED ON NOVEMBER 7, THE AFTERNOON OF NOVEMBER 8, AND NOVEMBER 9,
1972. THE COMMUNICATIONS ON NOVEMBER 8 AND 9 WITH EMPLOYEES CONSISTED
OF REPRESENTATIVES PASSING OUT HANDBILLS OUTSIDE THE GATE OF THE
RESPONDENT'S PREMISES AND CONTACTING EMPLOYEES DURING LUNCH AT
RESTAURANTS OFF THE PREMISES. COMPLAINANT IN ITS BRIEF STATE THAT BY
HANDBILLING, ITS AGENTS WERE ABLE TO DISTRIBUTE LITERATURE TO UP TO
THIRTY PERCENT (30%) OF THE AUTOMOBILES THAT ENTERED AND LEFT THE GATE
IN THE MORNING AND AFTERNOON BUT THEY WERE UNABLE TO TELL NON-UNIT
EMPLOYEES FROM OTHER PERSONS ON THE INSTALLATION. ABOUT TEN PERCENT
(10%) OF THE VEHICLES THAT ENTERED IN THE MORNING LEFT THE INSTALLATION
FOR LUNCH BUT AGAIN UNIT AND NON-UNIT PERSONNEL COULD NOT BE
DISTINGUISHED AND IN A TWO-DAY PERIOD THEY WERE ONLY ABLE TO CONTACT ONE
PERSON AT RESTAURANTS. THE EFFORT TO ESTABLISH CONTACT AT NASHVILLE WAS
CALLED OFF AT THE END OF THE SECOND DAY AFTER TWO OF COMPLAINANT'S
REPRESENTATIVES WERE REPORTED TO HAVE BEEN ALMOST RUN OVER BY AN IRATE
EMPLOYEE. OTHER THAN AT MEMPHIS ALL ACTIVITY BY THE COMPLAINANT CEASED
AFTER NOVEMBER 9, 1972.
AT THE MEMPHIS INSTALLATION, COMPLAINANT'S REPRESENTATIVE, CHARLES
STEPHENS, TESTIFIED THAT HE WAS TOLD ON NOVEMBER 8, 1972 THAT
NON-EMPLOYEE ORGANIZERS WOULD NOT BE ALLOWED ON THE INSTALLATION. /8/
HE THEN CAME TO NASHVILLE BUT RETURNED TO MEMPHIS THE FOLLOWING DAY IN
TIME TO PASS OUT HANDBILLS TO SIXTY OR SIXTY-FIVE PEOPLE. ON FRIDAY,
NOVEMBER 10, AN INDIVIDUAL HE CONTACTED FURNISHED HIM A LIST OF 20 NAMES
AND ON SATURDAY, NOVEMBER 11, HE MADE SOME EFFORT TO CONTACT THEM,
APPARENTLY BY LONG DISTANCE PHONE CALLS FROM LITTLE ROCK, ARKANSAS. HE
RETURNED TO MEMPHIS SUNDAY NIGHT AND ON MONDAY, NOVEMBER 13, HE PASSED
OUT LITERATURE ANNOUNCING A MEETING THAT NIGHT. SEVEN OR EIGHT PERSONS
SHOWED UP AT THE MEETING. /9/ HE ANNOUNCED HE WOULD BE IN HIS MOTEL
ROOM ON TUESDAY. HE HANDED OUT HIS REMAINING LITERATURE ON TUESDAY
MORNING, NOVEMBER 14, 1972, AND THEN RETURNED TO HIS MOTEL. NO ONE
SHOWED UP TO SEE HIM OR APPEARED FOR THE 4:30 SCHEDULED MEETING WHEN
THEY GOT OFF WORK AND HE WITHDREW ABOUT 5:30 P.M. /10/
COMPLAINANT HAD AN EMPLOYEE AT KNOXVILLE, BUT NO PROOF WAS INTRODUCED
AS TO HIS ACTIVITIES OTHER THAN MR. CHIVERS STATED HE WAS TOLD BY HIM HE
HAD BEEN DENIED A LIST OF NAMES AT THE KNOXVILLE INSTALLATION. /11/
THERE WAS NO PROOF INTRODUCED AS TO THE COMPLAINANT'S ACTIVITIES TO
ORGANIZE THE INSTALLATIONS AT ALCOA AND CHATTANOOGA.
THE GUIDELINE DECISIONS MATERIAL TO THIS PROCEEDING INCLUDE
DEPARTMENT OF TREASURY, BUREAU OF CUSTOMS, A/SLMR CASE NO. 169, CITED BY
NFFE IN SUPPORT OF ITS POSITION. IN THAT CASE, THERE WERE MORE THAN 800
EMPLOYEES ELIGIBLE TO VOTE IN SOME 50 LOCATIONS SCATTERED IN SEVEN
STATES AND ALL OF THEM WERE NOT LOCATED IN THE CITIES IN WHICH THE
DISTRICTS WERE HEADQUARTERED. IN THE CIRCUMSTANCES THE ASSISTANT
SECRETARY
"ADOPTED THE HEARING EXAMINER'S RECOMMENDATION AND SUSTAINED THE
AFGE'S OBJECTION RELATING TO THE ACTIVITY'S REFUSAL TO PERMIT THE UNION
USE OF ITS INTRA-OFFICE MAIL FACILITIES, INASMUCH AS THE UNIT, COMPOSED
OF OVER 800 EMPLOYEES, IS DISPERSED OVER A WIDE GEOGRAPHICAL AREA WITH
SOME EMPLOYEES LOCATED IN REMOTE AREAS, AND THE ACTIVITY REFUSED BOTH
THE AFGE AND THE NCSA PERMISSION TO USE ANY OF ITS FACILITIES TO ENABLE
THEM TO COMMUNICATE WITH EMPLOYEES IN THE UNIT. IN THESE CIRCUMSTANCES,
AND NOTING THE DESIRABILITY OF ATTAINING AN INFORMED ELECTORATE IN
ELECTIONS HELD UNDER THE PROVISIONS OF THE EXECUTIVE ORDER, THE
ASSISTANT SECRETARY CONCLUDED THAT THE ACTIVITY'S REFUSAL TO MAKE ITS
INTERNAL MAIL SERVICES AVAILABLE IMPROPERLY INTERFERED WITH THE CONDUCT
OF THE ELECTION. THE ASSISTANT SECRETARY ALSO NOTED THAT EXISTING
AGENCY POLICY TO THE CONTRARY WAS NOT CONTROLLING."
IT WAS ALSO HELD THAT
" . . . TO SUPPORT A CONTENTION THAT NON-EMPLOYEE ORGANIZERS SHOULD
BE ACCORDED PERSONAL ACCESS (AS DISTINGUISHED FROM ACCESS THROUGH THE
MAIL) TO EMPLOYEES ON ACTIVITY PREMISES FOR THE PURPOSE OF CAMPAIGNING,
IT MUST BE SHOWN THAT THE EMPLOYEES AT WHOM THE CAMPAIGNING IS DIRECTED
ARE INACCESSIBLE, THUS RENDERING REASONABLE ATTEMPTS TO COMMUNICATE WITH
THEM ON A DIRECT BASIS OUTSIDE THE ACTIVITY'S PREMISES INEFFECTIVE."
THE RESPONDENT ACTIVITY HAS CITED DEPARTMENT OF THE ARMY, U.S. ARMY
NATICK LABORATORIES, MASSACHUSETTS, A/SLMR NO. 263, AS BEING DISPOSITIVE
OF THE ISSUE IN THIS PROCEEDING. IN THAT CASE THE FOLLOWING WAS STATED:
"IN MY VIEW THE PRINCIPLES ENUNCIATE IN THE MENLO PARK /12/ AND THE
DEFENSE SUPPLY AGENCY, BURLINGAME /13/ DECISIONS ARE, EXCEPT IN THE
SPECIAL CIRCUMSTANCES NOTED BELOW, APPLICABLE IN THE SUBJECT CASE.
THUS, I FIND THAT IN THE ABSENCE OF SPECIAL CIRCUMSTANCES, A LABOR
ORGANIZATION, SUCH AS AFGE IN THE INSTANT CASE, WHICH HAS NOT RAISED A
QUESTION CONCERNING REPRESENTATION AND WHICH CLEARLY DOES NOT HAVE
EQUIVALENT STATUS WITH AN INCUMBENT EXCLUSIVELY RECOGNIZED
REPRESENTATIVE, SUCH AS THE COMPLAINANT HEREIN, MAY NOT BE FURNISHED, AT
THE DISCRETION OF AN AGENCY OR ACTIVITY, WITH THE USE OF THE LATTERS'
SERVICES AND FACILITIES. TO HOLD OTHERWISE WOULD, IN MY OPINION, BE
INCONSISTENT WITH THE PURPOSES AND POLICIES OF THE ORDER AS EXPRESSED IN
SECTION 19(A)(3). THUS, A CONTRARY RESULT, IN EFFECT COULD GRANT TO AN
AGENCY OR ACTIVITY THE POWER TO PICK AND CHOOSE THE PARTICULAR RIVAL
LABOR ORGANIZATION IT DESIRES TO UNSEAT AN INCUMBENT, RATHER THAN
LEAVING SUCH A CHOICE WHERE IT BELONGS - IN THE HANDS OF THE UNIT
EMPLOYEES. * * * MOREOVER, THE LABOR-MANAGEMENT RELATIONS STABILITY
SOUGHT TO BE ACHIEVED THROUGH A MEANINGFUL BARGAINING RELATIONSHIP
CONSTANTLY COULD BE PLACED IN JEOPARDY BY AN AGENCY OR ACTIVITY USING AS
LEVERAGE IN THE BARGAINING RELATIONSHIP THE POWER TO PERMIT
REPRESENTATIVES OF A RIVAL LABOR ORGANIZATION ON ITS PREMISES AT ANY
TIME FOR CAMPAIGNING PURPOSES.
"WITH REGARD TO POSSIBLE SPECIAL CIRCUMSTANCES WHICH MAY WARRANT A
DEPARTURE FROM THE FOREGOING PRINCIPLE, I FIND THAT WHERE NO QUESTION
CONCERNING REPRESENTATION EXISTS, SUCH AS IN THE INSTANT CASE,
NON-EMPLOYEE REPRESENTATIVES OF A LABOR ORGANIZATION WHICH DOES NOT HAVE
EQUIVALENT STATUS NEVERTHELESS MAY BE FURNISHED WITH AGENCY OR ACTIVITY
SERVICES AND FACILITIES FOR THE PURPOSE OF AN ORGANIZATIONAL CAMPAIGN
ONLY IN CIRCUMSTANCES WHERE IT CAN BE ESTABLISHED THAT THE EMPLOYEES
INVOLVED ARE INACCESSIBLE TO REASONABLE ATTEMPTS BY THE LABOR
ORGANIZATION TO COMMUNICATE WITH THEM OUTSIDE THE AGENCY'S OR ACTIVITY'S
PREMISES. * * * IT IS MY VIEW THAT IN LIMITED CIRCUMSTANCES THE
POLICIES OF THE ORDER AS SET FORTH IN SECTION 19(A)(3) MUST BE BALANCED
WITH THE OVERALL POLICY OF AFFORDING EMPLOYEES THE RIGHT TO OBTAIN
RELEVANT INFORMATION WHICH WILL ASSIST THEM IN EXERCISING THEIR RIGHTS
ASSURED UNDER SECTION 1(A) OF THE ORDER. IT SHOULD BE NOTED, HOWEVER,
THAT BEFORE AN AGENCY OF ACTIVITY GRANTS ACCESS TO ITS FACILITY BY
NON-EMPLOYEE REPRESENTATIVES OF A LABOR ORGANIZATION IN THESE
CIRCUMSTANCES, IT MUST ASCERTAIN THAT THE LABOR ORGANIZATION INVOLVED
HAS MADE A DILIGENT, BUT UNSUCCESSFUL, EFFORT TO CONTACT THE EMPLOYEES
AWAY FROM THE AGENCY OR ACTIVITY PREMISES AND THAT ITS FAILURE TO
COMMUNICATE WITH THE EMPLOYEES WAS BASED ON THEIR INACESSIBILITY. . . .
" /14/
IN VIEW OF THE ABOVE IN CONNECTION WITH SECTION 19(A)(1) OF THE ORDER
WHICH PROVIDES THAT "AGENCY MANAGEMENT SHALL NOT - (1) INTERFERE WITH,
RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY
THE ORDER," I FIND THAT:
(1) AT THE TIME NAGE FILED ITS PETITION FOR STATEWIDE RECOGNITION ON
OCTOBER 31, 1972, IT WAS THE EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S
EMPLOYEES AT NASHVILLE AND ALCOA, TENNESSEE INSTALLATIONS. EVEN
ASSUMING ARGUENDO, WITHOUT DECIDING THAT NAGE WAIVED ITS EXCLUSIVE
JURISDICTION AT NASHVILLE AND ALCOA AND THAT THE PARTIES WERE ON AN &UAL
BASIS IN ALL AREAS AS COMPLAINANT CONTENDS, /15/ THERE IS NO SHOWING
THAT COMPLAINANT'S NON-EMPLOYEE REPRESENTATIVES WERE TREATED IN ANY
DIFFERENT MANNER FROM THOSE OF NAGE.
(2) THE EVIDENCE OF RECORD DOES NOT ESTABLISH THAT THERE WAS A
SHOWING OF SUFFICIENT INTEREST IN FAVOR OF NFFE AMONG RESPONDENT'S
EMPLOYEES TO PERMIT IT TO INTERVENE AND IN THE SUBSEQUENT ELECTION NAGE
WAS CERTIFIED IN JANUARY 1973 AS THE EXCLUSIVE STATEWIDE UNION
REPRESENTATIVE.
(3) NOTICE OF POSTING ENSUED AFTER NAGE FILED ITS PETITION FOR
STATEWIDE RECOGNITION BEGINNING AT CHATTANOOGA ON NOVEMBER 4 AND ENDING
AT KNOXVILLE ON NOVEMBER 9, 1972.
(4) THERE WAS NO EVIDENCE INTRODUCED AS TO ANY ACTIVITY HAVING BEEN
TAKEN BY COMPLAINANT TO ORGANIZE EMPLOYEES OF THE RESPONDENT AT
CHATTANOOGA AND ALCOA INSTALLATIONS.
(5) ONE COMPLAINANT MEMBER EMPLOYEE AT KNOXVILLE IS REPORTED T- HAVE
TOLD NFFE ORGANIZER, LAURENCE CHIVERS, THAT NFFE WAS DENIED A LIST OF
NAMES OF EMPLOYEES AT THAT STATION BUT NO OTHER SIGNIFICANT ACTIVITY WAS
SUGGESTED AND THE HEARSAY TESTIMONY WAS NOT OTHERWISE SUBSTANTIATED.
(6) AT NASHVILLE, THE COMPLAINANT, NFFE ACTIVITIES BY ITS
NON-EMPLOYEE REPRESENTATIVES WAS CONFINED TO HANDBILLING ON NOVEMBER 7,
8, AND 9, 1972, OUTSIDE THE GATE AT THE INSTALLATION, AND ATTEMPTS TO
CONTACT EMPLOYEES AT VARIOUS RESTAURANTS DURING LUNCH HOUR IN THE
VICINITY OF THE INSTALLATION.
(7) AT MEMPHIS THE COMPLAINANT HAD ONE NON-EMPLOYEE ORGANIZER WHO ON
NOVEMBER 9, 1972 DISTRIBUTED LITERATURE TO 60 OR 65 PEOPLE DRIVING
AUTOMOBILES THROUGH THE GATE; LITERATURE WAS AGAIN DISTRIBUTED ON
NOVEMBER 13, 1972, AND SEVEN PERSONS SHOWED UP FOR A MEETING THAT WAS
ANNOUNCED FOR THAT EVENING. LITERATURE WAS AGAIN DISTRIBUTED ON
NOVEMBER 14, 1972, BUT NO EMPLOYEES SHOWED UP FOR THE SCHEDULED MEETING
ON THAT DATE AND ALL ACTIVITY CEASED ON THAT DATE.
(8) EMPLOYEES IN ALL AREAS RESIDED AWAY FROM BUT WITHIN A RADIUS OF
25 TO 30 MILES OF RESPONDENT'S INSTALLATIONS AND CAME TO WORK IN
VEHICLES PARKED ON THE PREMISES. ALL INSTALLATIONS WERE IN METROPOLITAN
AREAS.
(9) AT THE TIME COMPLAINANT'S NON-EMPLOYEE ORGANIZERS SOUGHT
PERMISSION ON NOVEMBER 8, 1972, TO DISTRIBUTE LITERATURE IN RESPONDENT'S
PARKING LOTS AND TO OTHERWISE CONDUCT A REPRESENTATION CAMPAIGN IT HAD
MADE NO SIGNIFICANT OR DILIGENT EFFORT TO CONTACT THE EMPLOYEES AWAY
FROM THE AGENCY OR ACTIVITY PREMISES OR SHOW THAT ITS FAILURE TO
COMMUNICATE WITH THEM WAS BASED ON THEIR INACCESSIBILITY.
INACCESSIBILITY AS DISTINGUISHED FROM UNRESPONSIVENESS IS NOT
DEMONSTRATED BY THE BRIEF HANDBILLING EFFORTS SUBSEQUENTLY SHOWN TO HAVE
BEEN MADE AT THE NASHVILLE AND MEMPHIS INSTALLATIONS WITH SUBSTANTIALLY
NO EFFORT HAVING BEEN DEMONSTRATED AT KNOXVILLE, CHATTANOOGA AND ALCOA.
FURTHER, THERE WAS NO PROOF BY COMPLAINANT OF ANY ATTEMPTS TO UTILIZE
ITS MEMBER EMPLOYEE AT THE VARIOUS INSTALLATIONS TO HELP IN ITS
ORGANIZATION CAMPAIGN OR THAT RESPONDENT IN ANY WAY RESTRICTED IT FROM
DOING SO.
BASED ON THE FOREGOING, I FIND THAT THE EVIDENCE DOES NOT ESTABLISH
THAT THE EMPLOYEES INVOLVED HEREIN WERE BEYOND THE REACH OF REASONABLE
EFFORTS OF NFFE TO COMMUNICATE WITH THEM OTHER THAN BY ACCESS TO PARKING
LOTS AND PREMISES OF THE RESPONDENT BY NON-EMPLOYEE ORGANIZERS. /16/
(10) DENIAL OF ACCESS TO ACTIVITY WORK AREAS TO NON-EMPLOYEES FOR
ELECTIONEERING; IMPARTIALLY APPLIED TO ALL UNIONS, IS NOT AN UNFAIR
LABOR PRACTICE, SINCE THERE IS NO OBLIGATION FOR THE ACTIVITY TO GRANT
SUCH ACCESS. /17/ THIS POLICY WAS LATER CLARIFIED IN DEPARTMENT OF THE
ARMY, U.S. ARMY NATICK LABORATIES CASE TO APPLY EXCEPT IN THOSE
CIRCUMSTANCES WHERE IT CAN BE ESTABLISHED THAT THE EMPLOYEES ARE
INACCESSIBLE TO REASONABLE ATTEMPTS BY THE LABOR ORGANIZATION TO
COMMUNICATE WITH THEM OUTSIDE THE AGENCY OR ACTIVITY PREMISES. /18/ IN
DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION SERVICES, REGION
SF, BURLINGAME, CALIFORNIA, THE ASSISTANT SECRETARY HELD THAT WHEN A
PETITION WAS FILED A QUESTION CONCERNING REPRESENTATION WAS RAISED, AND
THAT A LABOR ORGANIZATION WHICH DID NOT INTERVENE IN THE PROCEEDINGS DID
NOT HAVE EQUIVALENT STATUS WITH THE PETITIONER FOR PURPOSES OF
CAMPAIGNING ON THE ACTIVITY'S PREMISES, NOTWITHSTANDING THE FACT THAT A
QUESTION AS TO THE APPROPRIATENESS OF THE CLAIMED UNIT HAD NOT BEEN
RESOLVED AT THE TIME THE NON-INTERVENING LABOR ORGANIZATION WAS GRANTED
ACCESS TO THE ACTIVITY'S PREMISES. /19/ IN THE SAME CASE IT WAS NOTED
THAT " . . . BEFORE AN AGENCY OR ACTIVITY GRANTS ACCESS TO ITS FACILITY
BY NON-EMPLOYEE REPRESENTATIVES OF A LABOR ORGANIZATION IN THESE
CIRCUMSTANCES, IT MUST ASCERTAIN THAT THE LABOR ORGANIZATION INVOLVED
HAS MADE DILIGENT, BUT UNSUCCESSFUL, EFFORT TO CONTACT THE EMPLOYEES
AWAY FROM THE AGENCY OR ACTIVITY PREMISES AND THAT ITS FAILURE TO
COMMUNICATE WITH THE EMPLOYEES WAS BASED ON THEIR INACCESSIBILITY.
IN THIS CASE ACCESS TO ITS PREMISES WAS NOT GRANTED BY THE RESPONDENT
AND I FIND THAT AT THE TIME OF COMPLAINANT'S REQUESTED ACCESS TO
RESPONDENT'S PREMISES BY ITS NON-EMPLOYEE REPRESENTATIVES THERE HAD BEEN
NO DILIGENT OR UNSUCCESSFUL EFFORTS MADE BY COMPLAINANT TO CONTACT
EMPLOYEES AWAY FROM RESPONDENT'S PREMISES.
IN VIEW OF THE FOREGOING, I FIND THAT THE MOTION TO DISMISS THE
COMPLAINT BECAUSE OF FAILURE TO PROVE A VIOLATION OF SECTION 19(A)(1) OF
THE ORDER MADE AT THE CLOSE OF COMPLAINANT'S PROOF AND RENEWED UPON
COMPLETION OF ALL TESTIMONY IS WARRANTED AND I WILL SO RECOMMEND.
BY DENYING NON-EMPLOYEE REPRESENTATIVES OF COMPLAINT (NFFE) ACCESS TO
ITS PARKING LOTS AND PREMISES FOR THE PURPOSE OF CONDUCTING AN
ORGANIZATIONAL CAMPAIGN AMONG ITS EMPLOYEES, AFTER IT HAD PREVIOUSLY
DENIED PERMISSION AND ACCESS TO NON-EMPLOYEE REPRESENTATIVES OF NAGE,
THE RESPONDENT DID NOT INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN
THE EXERCISE OF THE RIGHTS ASSURED THEM UNDER SECTION 1(A) OF THE ORDER
OR OTHERWISE VIOLATE SECTION 19(A)(1) OF THE ORDER.
IN VIEW OF THE FOREGOING FINDINGS AND RECOMMENDATION MADE ABOVE, I
RECOMMEND THAT THE ASSISTANT SECRETARY DISMISS THE COMPLAINT.
DATED: NOVEMBER 9, 1973
WASHINGTON, D.C.
/1/ ALCOA AND KNOXVILLE ARE PRACTICALLY ADJACENT INSTALLATIONS
LOCATED IN THE KNOXVILLE AREA. TRANSCRIPT, HEREINAFTER REFERRED TO AS
TR., P. 9.
/2/ TR. PP 12, 13, 142-146.
/3/ TR. P. 9.
/4/ SECTION 202.5(A) OF THE ASSISTANT SECRETARY REGULATIONS PROVIDE
THAT "NO LABOR ORGANIZATION WILL BE PERMITTED TO INTERVENE IN ANY
PROCEEDING PURSUANT TO THIS PART UNLESS IT HAS SUBMITTED A SHOWING OF
INTEREST OF 10 PERCENT (10%) OR MORE OF THE EMPLOYEES IN THE UNIT
INVOLVED IN THE PETITION TOGETHER WITH A ALPHABETICAL LIST OF NAMES
CONSTITUTING SUCH SHOWING OR HAS SUBMITTED A CURRENT OR RECENTLY EXPIRED
AGREEMENT WITH THE ACTIVITY, COVERING ANY OF THE EMPLOYEES INVOLVED, OR
HAS SUBMITTED EVIDENCE THAT IT IS THE CURRENTLY RECOGNIZED OR CERTIFIED
EXCLUSIVE REPRESENTATIVE OF ANY OF THE EMPLOYEES INVOLVED."
/5/ COMPLAINANT'S EXHIBIT A.
/6/ RESPONDENT'S EXHIBIT NO. 2, WHICH STATES IN PART: "WE WOULD
WELCOME ANY EFFORTS MADE ON BEHALF OF YOUR UNION WHICH ARE PROVIDED FOR
IN DOD 1426.1, SECTION VII, ENTITLED: DEALING WITH LABOR ORGANIZATIONS,
PARTS A 1 (A) AND (B) (A COPY IS ATTACHED FOR YOUR INFORMATION).
HOWEVER, IT IS OUR POLICY THAT NON-EMPLOYEE REPRESENTATIVES NOT BE
GRANTED PERMISSION TO ENGAGE IN ON-STATION ORGANIZING OR CAMPAIGNING
ACTIVITIES. SECTION C OF THE ABOVE REFERENCED DIRECTIVE STATES: 'IF
PERMISSION IS GRANTED TO ONE LABOR ORGANIZATION FOR NON-EMPLOYEE
REPRESENTATIVES TO ENGAGE IN ON-STATION ORGANIZING OR CAMPAIGNING
ACTIVITIES, THE SAME PRIVILEGE MUST BE EXTENDED TO ANY OTHER REQUESTING
LABOR ORGANIZATION. OUR POLICY IS BASED ON THIS STATEMENT AND THE
POSSIBLE DISRUPTIVE EFFECTS IN THE WORK SITUATION, ESPECIALLY IF SEVERAL
UNIONS BECOME INVOLVED."
/7/ TR., P. 191, AND RESPONDENT'S EXHIBIT NO. 2.
/8/ TR. P. 126.
/9/ TR. P. 120.
/10/ TR. PP 121, 130, 131.
/11/ TR. P. 70.
/12/ A/SLMR NO. 143.
/13/ A/SLMR NO. 247.
/14/ ALSO SEE NLRB V. BABCOCK & WILCOX COMPANY, 351 U.S. 105 (1956),
ILLUSTRATING THE LAW IN THE PRIVATE SECTOR WHERE THE SUPREME COURT HELD
THAT AN EMPLOYER NEED NOT PERMIT NON-EMPLOYEE ORGANIZERS THE USE OF ITS
PROPERTY WHERE OTHER AVAILABLE AND EFFECTIVE CHANNELS OF COMMUNICATION
EXIST.
/15/ IN DEFENSE SUPPLY AGENCY, DEFENSE CONTRACT ADMINISTRATION
SERVICES, REGION SF, BURLINGAME, CALIFORNIA, A/SLMR NO. 247, THE
ASSISTANT SECRETARY HELD THAT WHEN A PETITION WAS FILED A QUESTION
CONCERNING REPRESENTATION WAS RAISED, AND THAT A LABOR ORGANIZATION
WHICH DID NOT INTERVENE IN THE PROCEEDING DID NOT HAVE EQUIVALENT STATUS
WITH THE PETITIONER FOR PURPOSES OF CAMPAIGNING ON THE ACTIVITY'S
PREMISES, NOTWITHSTANDING THE FACT THAT A QUESTION AS TO THE
APPROPRIATENESS OF THE CLAIMED UNIT HAD NOT BEEN RESOLVED AT THE TIME
THE NON-INTERVENING LABOR ORGANIZATION WAS GRANTED ACCESS TO THE
ACTIVITY'S PREMISES. ACCORDINGLY, IT WAS FOUND THAT THE ACTIVITY
VIOLATED SECTION 19(A)(3) OF THE ORDER BY GRANTING A NON-INTERVENING
LABOR ORGANIZATION EQUIVALENT STATUS WITH RESPECT TO USE OF ITS
FACILITIES FOR THE PURPOSES OF CONDUCTING A SOLICITATION CAMPAIGN.
/16/ THIS FINDING WAS MADE WITHOUT REFERENCE OR RELIANCE TO THE
RESPONDENT AGENCY'S CONTENTION THAT IN DENYING ACCESS TO NFFE, IT WAS
FOLLOWING DEPARTMENT OF DEFENSE OR AGENCY DIRECTIVES. SUCH IS NOT
CONSIDERED A PROPER DEFENSE OF ALLEGEDLY VIOLATIVE CONDUCT, (A/SLMR
DECISIONS NOS. 1 AND 263).
/17/ REPORT NO. 23 OF ASSISTANT SECRETARY RULING PURSUANT TO SECTION
6 OF EXECUTIVE ORDER 11491.
/18/ A/SLMR NO. 263.
/19/ SEE FOOTNOTE 15, SUPRA.
4 A/SLMR 354; P. 137; CASE NO. 22-4040(RO); FEBRUARY 28, 1974.
DEPARTMENT OF THE TREASURY,
UNITED STATES CUSTOMS SERVICE
A/SLMR NO. 354
THE SUBJECT CASE INVOLVED A REPRESENTATION PETITION FILED BY THE
NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 101 (NTEU) SEEKING AN
ELECTION IN A UNIT OF ALL PROFESSIONAL EMPLOYEES IN THE UNITED STATES
DEPARTMENT OF TREASURY, UNITED STATES CUSTOMS SERVICE, OFFICE OF
REGULATIONS AND RULINGS. THE RECORD REVEALED THAT THE ONLY
NONSUPERVISORY PROFESSIONAL EMPLOYEES IN THE UNIT CLAIMED ARE CUSTOMS
LAW SPECIALISTS BUT THAT THERE ARE OTHER PROFESSIONAL EMPLOYEES EMPLOYED
IN OTHER ADMINISTRATIVE DIVISIONS OF THE ACTIVITY IN WASHINGTON, D.C.
THESE OTHER NONSUPERVISORY PROFESSIONAL EMPLOYEES INCLUDE 12
ACCOUNTANTS, AN ENGINEER, AND AN ARCHITECT IN THE OFFICE OF
ADMINISTRATION, AND CHEMISTS IN THE OFFICE OF OPERATIONS. IN ADDITION,
THE OFFICE OF THE CHIEF COUNSEL, UNDER THE OVERALL SUPERVISION OF THE
GENERAL COUNSEL OF THE DEPARTMENT OF THE TREASURY BUT LOCATED IN THE
UNITED STATES CUSTOMS SERVICE OFFICES IN WASHINGTON, D.C., EMPLOYS STAFF
ATTORNEYS. THE PARTIES ENTERED INTO A STIPULATION SETTING FORTH ALL
MATERIAL FACTS AND THE CASE WAS TRANSFERRED BY THE ACTING ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES TO THE ASSISTANT
SECRETARY FOR DECISION.
THE ASSISTANT SECRETARY FOUND THAT THE SKILLS AND BASIC
QUALIFICATIONS STANDARDS, AS WELL AS THE DUTIES, OF THE CUSTOMS LAW
SPECIALISTS DIFFER CONSIDERABLY FROM THOSE OF THE CHEMISTS, ACCOUNTANTS,
THE ENGINEER AND THE ARCHITECT. MOREOVER, ON-THE-JOB TRAINING AND THE
CAREER LADDER OF THE CUSTOMS LAW SPECIALISTS ARE UNLIKE THOSE OF THE
OTHER ABOVE-MENTIONED PROFESSIONALS, AND THERE IS NO INTERCHANGE AND
RELATIVELY LITTLE WORK CONTACT BETWEEN THE CUSTOMS LAW SPECIALISTS AND
OTHER PROFESSIONALS OF THE ACTIVITY. THE ASSISTANT SECRETARY ALSO FOUND
NO EVIDENCE THAT THE ATTORNEYS IN THE OFFICE OF CHIEF COUNSEL HAVE
EXTENSIVE CONTACT WITH CUSTOMS LAW SPECIALISTS OR OTHER PROFESSIONALS OF
THE ACTIVITY. HE NOTED THAT ALTHOUGH THE CHIEF COUNSEL HAS HIS OWN
BUDGET FOR HIS OFFICE, UNLIKE THE ASSISTANT COMMISSIONERS WHO ARE IN
CHARGE OF EACH OF THE OPERATING OFFICES OF THE ACTIVITY, HE DOES NOT
HAVE THE AUTHORITY TO HIRE, FIRE AND PROMOTE THE EMPLOYEES UNDER HIS
JURISDICTION; RATHER, THIS AUTHORITY RESIDES IN THE GENERAL COUNSEL OF
THE TREASURY DEPARTMENT.
BASED ON THESE CIRCUMSTANCES, AND NOTING PARTICULARLY THE AGREEMENT
OF THE PARTIES WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT SOUGHT
AND THE FACTS THAT THE UNIT SOUGHT WOULD INCLUDE ALL NONSUPERVISORY,
PROFESSIONAL EMPLOYEES EMPLOYED WITHIN A GIVEN ADMINISTRATIVE DIVISION
OF THE ACTIVITY, THAT THE PROFESSIONAL EMPLOYEES SOUGHT PERFORMED
DIFFERENT WORK AND HAVE LITTLE OR NO WORK CONTACT WITH OTHER
PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND THAT ALL OF THE EMPLOYEES IN
THE CLAIMED UNIT ARE UNDER THE SUPERVISION, DIRECTION, AND
ADMINISTRATIVE CONTROL OF THE ASSISTANT COMMISSIONER OF THE OFFICE OF
REGULATIONS AND RULINGS, THE ASSISTANT SECRETARY FOUND THAT THE CLAIMED
EMPLOYEES SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT
SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATION. ACCORDINGLY, HE DIRECTED AN ELECTION IN THE UNIT FOUND
APPROPRIATE.
DEPARTMENT OF THE TREASURY,
UNITED STATES CUSTOMS SERVICE
AND
NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 101
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ACTING
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES FRANK P.
WILLETTE'S ORDER TRANSFERRING CASE TO THE ASSISTANT SECRETARY OF LABOR
PURSUANT TO SECTION 206.5(A) OF THE ASSISTANT SECRETARY'S REGULATIONS.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES'
STIPULATION OF FACTS AND ACCOMPANYING EXHIBITS, /1/ THE ASSISTANT
SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. AS INDICATED ABOVE, THE NTEU SEEKS AN ELECTION IN A UNIT
CONSISTING OF ALL PROFESSIONAL EMPLOYEES IN THE OFFICE OF REGULATIONS
AND RULINGS OF THE UNITED STATES CUSTOMS SERVICE, WASHINGTON, D.C. THE
EVIDENCE ESTABLISHES THAT THE ONLY PROFESSIONAL NONSUPERVISORY JOB
CATEGORY IN THE OFFICE OF REGULATIONS AND RULINGS IS, IN FACT, THAT OF
CUSTOMS LAW SPECIALIST. IT APPEARS THAT THE PARTIES ARE IN AGREEMENT AS
TO THE APPROPRIATENESS OF THE UNIT SOUGHT. HOWEVER, BECAUSE ADDITIONAL
PROFESSIONAL EMPLOYEES ARE EMPLOYED IN OTHER ADMINISTRATIVE DIVISIONS OF
THE ACTIVITY IN WASHINGTON, D.C., THE CASE WAS TRANSFERRED TO THE
ASSISTANT SECRETARY BY THE ACTING ASSISTANT DIRECTOR FOR
LABOR-MANAGEMENT SERVICES FOR A DETERMINATION AS TO WHETHER THE UNIT
SOUGHT WAS APPROPRIATE.
THE STIPULATION OF FACTS REFLECTS THAT THE OFFICE OF REGULATIONS AND
RULINGS IS ONE OF FIVE ADMINISTRATIVE SUBDIVISIONS OF THE ACTIVITY, EACH
OF WHICH IS UNDER THE DIRECTION OF AN ASSISTANT COMMISSIONER OF CUSTOMS.
THESE FIVE ASSISTANT COMMISSIONERS, AND THE CHIEF COUNSEL, WHO IS IN
CHARGE OF THE OFFICE OF CHIEF COUNSEL, ARE THE PRINCIPAL STAFF
ASSISTANTS TO THE COMMISSIONER OF THE BUREAU. THE OFFICE OF REGULATIONS
AND RULINGS IS SUBDIVIDED INTO FOUR OPERATING DIVISIONS: CARRIERS,
DRAWBACK AND BONDS DIVISION; CLASSIFICATION AND VALUE DIVISION; ENTRY
PROCEDURES AND PENALTIES DIVISION; AND REGULATIONS DIVISION. AMONG THE
DUTIES OF THE OFFICE OF REGULATIONS AND RULINGS ARE: PROVIDING
INTERPRETATIONS AND INFORMATION CONCERNING CUSTOMS AND OTHER LAWS,
CUSTOMS REGULATIONS AND RELATED PROCEDURES, INTERNALLY, TO OTHER
GOVERNMENT AGENCIES, TO THE CONGRESS, AND TO THE PUBLIC; PREPARING
DECISIONS ON CURRENT REGULATIONS AND PRACTICE, INCLUDING DECISIONS
REFLECTING CUSTOMS SERVICE POSITIONS TO BE DEFENDED BY THE DEPARTMENT OF
JUSTICE IN THE COURTS; MONITORING CUSTOMS LEGAL DECISIONS AND PROGRAMS;
MAINTAINING AND REVISING THE CUSTOMS REGULATIONS AND MANUAL; REVIEWING
AND RECOMMENDING METHODS FOR THE DISSEMINATION OF REGULATORY OR
PROCEDURAL INFORMATION; DRAFTING LEGISLATION OR REVIEWING PROPOSED
LEGISLATION; AND PROVIDING LEGAL ADVICE AND ASSISTANCE TO TREASURY
DEPARTMENT AND CUSTOMS SERVICE REPRESENTATIVES AT LEGISLATIVE HEARINGS,
TREASURY DEPARTMENT CONFERENCES, INTER-AGENCY CONFERENCES AND
INTERNATIONAL MEETINGS. THESE RESPONSIBILITIES CUT ACROSS THE
ORGANIZATIONAL LINES OF THE FOUR OPERATING DIVISIONS OF THE OFFICE OF
REGULATIONS AND RULINGS, AND CUSTOMS LAW SPECIALISTS ARE EMPLOYED IN
EACH OF THESE DIVISIONS.
ALTHOUGH THE CUSTOMS LAW SPECIALISTS ARE THE ONLY NONSUPERVISORY,
PROFESSIONAL EMPLOYEES IN THE OFFICE OF REGULATIONS AND RULINGS, /2/
THERE ARE OTHER PROFESSIONAL EMPLOYEES IN TWO OF THE REMAINING FOUR
ORGANIZATIONAL OFFICES OF THE ACTIVITY, AND IN THE OFFICE OF THE CHIEF
COUNSEL. THUS, IN THE OFFICE OF ADMINISTRATION THERE ARE EMPLOYED 12
NONSUPERVISORY ACCOUNTANTS, AN ENGINEER AND AN ARCHITECT; THE OFFICE OF
OPERATIONS EMPLOYS FIVE CHEMISTS; AND THE OFFICE OF THE CHIEF COUNSEL
EMPLOYS NINE STAFF ATTORNEYS. THE EVIDENCE ESTABLISHES THAT THE SKILLS
AND BASIC QUALIFICATION STANDARDS, AS WELL AS THE DUTIES, OF THE CUSTOMS
LAW SPECIALISTS DIFFER CONSIDERABLY FROM THOSE OF THE CHEMISTS,
ACCOUNTANTS, THE ENGINEER AND THE ARCHITECT. MOREOVER,
ON-THE-JOB-TRAINING AND THE CAREER LADDER OF THE CUSTOMS LAW SPECIALISTS
ARE UNLIKE THOSE OF THE OTHER ABOVE-MENTIONED PROFESSIONALS, AND THERE
IS NO INTERCHANGE AND RELATIVELY LITTLE WORK CONTACT BETWEEN THE CUSTOMS
LAW SPECIALISTS AND OTHER PROFESSIONALS OF THE ACTIVITY.
THE ASSISTANT COMMISSIONERS OF THE BUREAU, INCLUDING THE ASSISTANT
COMMISSIONER OF THE OFFICE OF REGULATIONS AND RULINGS, HAVE AUTHORITY TO
HIRE, FIRE AND PROMOTE EMPLOYEES UNDER THEIR JURISDICTION. THEY ALSO
HAVE AUTHORITY FOR SUPERVISING, ASSIGNING AND TRANSFERRING EMPLOYEES
WITHIN THEIR RESPECTIVE OFFICES, REVIEWING JOB PERFORMANCE, AND
APPROVING THE EXPENDITURE OF FUNDS FOR OPERATIONAL NEEDS. /3/
THE OFFICE OF THE CHIEF COUNSEL IS UNDER THE GENERAL SUPERVISION OF
THE GENERAL COUNSEL FOR THE TREASURY DEPARTMENT, ALTHOUGH PHYSICALLY
LOCATED IN THE OFFICES OF THE UNITED STATES CUSTOMS SERVICE. AMONG THE
MANY RESPONSIBILITIES OF THE OFFICE OF CHIEF COUNSEL ARE THE PROVIDING
OF LEGAL ADVICE TO THE COMMISSIONER AND THE ASSISTANT COMMISSIONERS IN
ALL AREAS PERTAINING TO PERSONNEL MATTERS; REPRESENTING MANAGEMENT IN
ADMINISTRATIVE HEARINGS INVOLVING LABOR-MANAGEMENT RELATIONS; REVIEWING
AND RECOMMENDING POSSIBLE DISCIPLINARY ACTION AGAINST HOLDERS OF VARIOUS
LICENSES ISSUED BY THE CUSTOMS SERVICE; REPRESENTING THE CUSTOMS
SERVICE IN ANY ADMINISTRATIVE HEARINGS CONDUCTED IN CONNECTION WITH SUCH
DISCIPLINARY MATTERS; REVIEWING AND RECOMMENDING DISPOSITION OF CLAIMS
FILED UNDER VARIOUS STATUTES; AND FURNISHING LEGAL ADVICE TO THE
DEPARTMENT OF JUSTICE WITH REGARD TO SUCH CLAIMS. IN CONNECTION WITH
THESE VARIOUS RESPONSIBILITIES, STAFF ATTORNEYS ARE GENERALISTS AND ARE
GIVEN ASSIGNMENTS TO ALL AREAS OF FUNCTIONAL RESPONSIBILITY. THERE IS,
HOWEVER, NO EVIDENCE THAT THESE ATTORNEYS HAVE EXTENSIVE CONTACT WITH
CUSTOMS LAW SPECIALISTS OR OTHER PROFESSIONALS OF THE ACTIVITY.
MOREOVER, ALTHOUGH THE CHIEF COUNSEL HAS HIS OWN BUDGET FOR HIS OFFICE,
UNLIKE THE ASSISTANT COMMISSIONERS, HE DOES NOT HAVE THE AUTHORITY TO
HIRE, FIRE AND PROMOTE THE EMPLOYEES UNDER HIS JURISDICTION; RATHER,
THIS AUTHORITY RESIDES IN THE GENERAL COUNSEL OF THE TREASURY
DEPARTMENT.
BASED ON THE FOREGOING CIRCUMSTANCES, AND NOTING PARTICULARLY THE
AGREEMENT OF THE PARTIES WITH RESPECT TO THE APPROPRIATENESS OF THE UNIT
SOUGHT, AND THE FACTS THAT THE UNIT SOUGHT WOULD INCLUDE ALL THE
NONSUPERVISORY, PROFESSIONAL EMPLOYEES EMPLOYED WITHIN A GIVEN
ADMINISTRATIVE SUBDIVISION OF THE ACTIVITY, THAT THE PROFESSIONAL
EMPLOYEES SOUGHT PERFORM DIFFERENT WORK AND HAVE LITTLE OR NO WORK
CONTACT WITH OTHER PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND THAT ALL
OF THE EMPLOYEES IN THE CLAIMED UNIT ARE UNDER THE SUPERVISION,
DIRECTION, AND ADMINISTRATIVE CONTROL OF THE ASSISTANT COMMISSIONER OF
THE OFFICE OF REGULATIONS AND RULINGS, I FIND THAT THE CLAIMED EMPLOYEES
SHARE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST AND THAT SUCH A
UNIT WILL PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. ACCORDINGLY, I SHALL DIRECT AN ELECTION IN THE FOLLOWING
UNIT WHICH I FIND TO BE APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION UNDER EXECUTIVE ORDER 11491, AS AMENDED:
ALL PROFESSIONAL EMPLOYEES IN THE UNITED STATES DEPARTMENT OF
TREASURY, UNITED STATES
CUSTOMS SERVICE, OFFICE OF REGULATIONS AND RULINGS, 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.
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 THE 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
ELIGIBLE DATE. THOSE ELIGIBLE SHALL VOTE WHETHER OR NOT THEY DESIRE TO
BE REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
TREASURY EMPLOYEES UNION, CHAPTER 101.
DATED, WASHINGTON, D.C.
FEBRUARY 28, 1974
/1/ THE STIPULATION OF FACTS AND ACCOMPANYING EXHIBITS FAILED TO SET
FORTH THE UNIT SOUGHT IN THE INSTANT PETITION FILED BY THE NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, AND CHAPTER NO. 101, NATIONAL
ASSOCIATION OF INTERNAL REVENUE EMPLOYEES, THE FORMER DESIGNATION OF THE
PETITIONER, THE NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 101, HEREIN
CALLED NTEU. I AM ADVISED ADMINISTRATIVELY HOWEVER, THAT THE UNIT
SOUGHT BY THE SUBJECT PETITION IS: ALL PROFESSIONAL EMPLOYEES IN THE
UNITED STATES DEPARTMENT OF TREASURY, UNITED STATES CUSTOMS SERVICE,
OFFICE OF REGULATIONS AND RULINGS; EXCLUDING, ALL NONPROFESSIONAL
EMPLOYEES AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL CAPACITY, MANAGERS, SUPERVISORS AND GUARDS AS DEFINED
IN EXECUTIVE ORDER 11491, AS AMENDED.
/2/ I AM ADVISED ADMINISTRATIVELY THAT THERE ARE APPROXIMATELY 77
EMPLOYEES IN THE CLAIMED UNIT. IT WAS NOTED THAT THERE IS NO COLLECTIVE
BARGAINING HISTORY WITH RESPECT TO ANY HEADQUARTERS STAFF EMPLOYEES OF
THE ACTIVITY.
/3/ THE PARTIES STIPULATED THAT IF THE UNIT SOUGHT WERE BROADENED TO
INCLUDE THE OTHER PROFESSIONALS EMPLOYED BY THE ACTIVITY, NEGOTIATIONS
WOULD HAVE TO BE ELEVATED TO THE LEVEL OF THE COMMISSIONER OF CUSTOMS,
WHICH THE PARTIES ASSERT WOULD ALSO REQUIRE THE ACTIVE PARTICIPATION OF
THE THREE ASSISTANT COMMISSIONERS IN WHOSE DIVISIONS PROFESSIONALS ARE
EMPLOYED.
4 A/SLMR 353; P. 132; CASE NO. 60-3266(CA); FEBRUARY 5, 1974.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
KANSAS CITY AIR ROUTE CONTROL CENTER,
OLATHE, KANSAS
A/SLMR NO. 353
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, ROCKY MOUNTAIN REGION
(COMPLAINANT) AGAINST THE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, KANSAS CITY AIR ROUTE CONTROL CENTER, OLATHE, KANSAS
(RESPONDENT). THE COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1), (3), AND (5) OF THE ORDER BY PERMITTING THE INCLUSION
OF AN ARTICLE BY A SUPERVISOR ABOUT THE AIR TRAFFIC CONTROL ASSOCIATION
(ATCA) IN THE RESPONDENT'S OFFICIAL HOUSE ORGAN-- THE SUPERVISOR
ALLEGEDLY INDICATING IS THE ARTICLE HIS PREFERENCE FOR ATCA OVER THE
INCUMBENT LABOR ORGANIZATION.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE MATTER, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE THAT THE COMPLAINT BE DISMISSED. THE
ADMINISTRATIVE LAW JUDGE HAD FOUND THAT IN VIEW OF THE ASSISTANT
SECRETARY'S HOLDING IN FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC
TOWER, A/SLMR NO. 300, THE ATCA IS A PROFESSIONAL ASSOCIATION AND NOT A
LABOR ORGANIZATION WITHIN THE MEANING OF SECTION 2(E) OF THE ORDER, EVEN
IF IT WERE ASSUMED THAT THE PUBLICATION OF THE ATCA ARTICLE CONSTITUTED
ENCOURAGEMENT OF MEMBERSHIP IN ATCA, THERE IS NOTHING IN THE EXECUTIVE
ORDER THAT PROHIBITS THE RESPONDENT FROM ENCOURAGING MEMBERSHIP IN A
PROFESSIONAL ORGANIZATION.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
KANSAS CITY AIR ROUTE CONTROL CENTER,
OLATHE, KANSAS
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MARINE ENGINEERS BENEFICIAL
ASSOCIATION, AFL-CIO
ROCKY MOUNTAIN REGION
AIR TRAFFIC CONTROL ASSOCIATION
ON NOVEMBER 30, 1973, 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. 60-3266(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 5, 1974
/1/ BECAUSE THE AIR TRAFFIC CONTROL ASSOCIATION WAS ALLEGED TO HAVE
BEEN AN IMPROPERLY ASSISTED LABOR ORGANIZATION, IT WAS SERVED WITH THE
NOTICE OF HEARING IN THIS MATTER. HOWEVER, THE AIR TRAFFIC CONTROL
ASSOCIATION DID NOT CHOOSE TO APPEAR AT THE HEARING.
IN THE MATTER OF
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
KANSAS CITY AIR ROUTE CONTROL CENTER
OLATHE, KANSAS
AND
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO
ROCKY MOUNTAIN REGION
AND
AIR TRAFFIC CONTROL ASSOCIATION
NOEL F. KEANE
REGIONAL VICE-PRESIDENT
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION
9036 WEST 95TH STREET
OVERLAND PARK, KANSAS 66212
WILLIAM W. HEIMBACH
DEPUTY DIRECTOR, LABOR RELATIONS
FEDERAL AVIATION ADMINISTRATION
800 INDEPENDENCE AVENUE, S.W.
WASHINGTON, D.C. 20591
BEFORE: MILTON KRAMER
ADMINISTRATIVE LAW JUDGE
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491 AS AMENDED. IT WAS
INITIATED BY A COMPLAINT DATED JANUARY 18, 1973 AND FILED JANUARY 22,
1973. THE COMPLAINT ALLEGES A VIOLATION OF SECTIONS 19(A)(1), (3), AND
(5) OF THE EXECUTIVE ORDER BY THE RESPONDENT. THE VIOLATION WAS ALLEGED
TO CONSIST OF THE RESPONDENT INCLUDING IN THE VOL. I, ISSUE 1, NOVEMBER
1972 ISSUE OF KANSAS CITY ARTCC, OLATHE, KANSAS (A HOUSE ORGAN
DISSEMINATED AMONG RESPONDENT'S EMPLOYEES) AN ARTICLE BY A SUPERVISOR
INDICATING HIS PREFERENCE FOR ANOTHER LABOR ORGANIZATION, THE AIR
TRAFFIC CONTROL ASSOCIATION, INC., ALTHOUGH COMPLAINANT WAS THE
EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S EMPLOYEES.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT AND REPORTED TO THE
ASSISTANT REGIONAL DIRECTOR. ON MARCH 30, 1973, THE ACTING ASSISTANT
REGIONAL DIRECTOR ISSUED A NOTICE OF HEARING TO BE HELD JUNE 5, 1973, IN
KANSAS CITY, MISSOURI.
HEARINGS WERE HELD JUNE 5, 1973. THE COMPLAINANT WAS REPRESENTED BY
ITS REGIONAL VICE-PRESIDENT (WHO HAD SIGNED THE COMPLAINT ON BEHALF OF
COMPLAINANT) AND THE RESPONDENT ACTIVITY WAS REPRESENTED BY THE DEPUTY
DIRECTOR, LABOR RELATIONS, OF THE FEDERAL AVIATION ADMINISTRATION. THE
PARTY IN INTEREST WAS NOT REPRESENTED. THE COMPLAINANT AND THE
RESPONDENT EACH FILED A BRIEF.
1. DURING THE HEARING THE COMPLAINANT WANTED TO INTRODUCE IN
EVIDENCE AS AN EXHIBIT A COPY OF A DOCUMENT IT DID NOT HAVE AT THE
HEARING AND ASKED THAT THE HEARING BE HELD OPEN UNTIL HE COULD OBTAIN IT
AND FURNISH IT. I RULED THAT AN EXHIBIT COULD NOT BE INTRODUCED WITHOUT
THE OPPOSING PARTY FIRST HAVING SEEN IT AND HAD AN OPPORTUNITY TO OBJECT
TO IT. I RULED ALSO THAT THE HEARING WOULD BE CLOSED AT THE END OF THE
DAY AND STATED THAT THEREAFTER A MOTION COULD BE MADE TO REOPEN THE
RECORD TO RECEIVE ADDITIONAL EVIDENCE AND THAT IF THAT WERE DONE THE
OTHER SIDE WOULD HAVE AN OPPORTUNITY TO OBJECT BEFORE I RULED. THE
DOCUMENT WAS DESCRIBED AS AN INTERPRETATION BY THE SOUTHWEST REGION OF
FAA OF THE NATIONAL MERIT PROMOTION PROGRAM HANDBOOK IN WHICH THE
SOUTHWEST REGION STATED IT WOULD GIVE CREDIT FOR MEMBERSHIP IN
PROFESSIONAL SOCIETIES IN DETERMINING MERIT PROMOTIONS.
THREE WEEKS AFTER THE HEARING THE GENERAL COUNSEL OF THE COMPLAINANT
FILED A MOTION FOR LEAVE TO FILE AN ADDITIONAL EXHIBIT WHICH WAS
ATTACHED TO THE MOTION. THE TENDERED EXHIBIT IS A COPY OF A SUPPLEMENT
TO THE REVISED SOUTHWEST REGIONAL MERIT PROMOTION PLAN. IN THE
SUPPLEMENT IT IS STATED, INTER ALIA, THAT SPECIFIED CREDIT WOULD BE
GIVEN FOR ACTIVITY IN A PROFESSIONAL SOCIETY. THE SUPPLEMENT IS DATED
APRIL 3, 1973. THE RESPONDENT FILED AN OBJECTION TO THE MOTION ON THE
GROUNDS THAT THE PROFFERED DOCUMENT WAS ISSUED BY AN ACTIVITY OTHER THAN
THE RESPONDENT AND WAS NOT CONTROLLING ON THE RESPONDENT, AND THAT IT
WAS ISSUED AFTER THE COMPLAINT IN THIS CASE WAS FILED AND THUS WAS
IRRELEVANT TO THE MERITS OF THE COMPLAINT.
THE PROFFERED EXHIBIT, ASSUMING ITS AUTHENTICITY, IS A DOCUMENT
ISSUED BY AN ACTIVITY OF FAA OTHER THAN THE RESPONDENT AND THERE IS NO
SHOWING THAT IT IS BINDING OR EVEN PERSUASIVE ON THE RESPONDENT. AT THE
HEARING THE REPRESENTATIVE OF THE COMPLAINANT URGED THAT HE ASSUMED THAT
IF THE THE SOUTHWEST REGION SUPPLEMENT SHOULD PROVE SUCCESSFUL IT WAS
ONLY PRELIMINARY TO OTHER REGIONS TAKING THE SAME ACTION. (TR. 44.) I
MAKE NO SUCH ASSUMPTION. THE TENDERED EXHIBIT IS IRRELEVANT TO THE
NATURE OF ANY CONDUCT OF THE RESPONDENT. MORE, IT IS IRRELEVANT AND
IMMATERIAL TO THE NATURE OF THE- CONDUCT ALLEGED IN THE COMPLAINT AS AN
UNFAIR LABOR PRACTICE.
THE MOTION FOR LEAVE TO FILE EXHIBIT IS DENIED. THE PROFFERED
EXHIBIT IS NOT RECEIVED IN EVIDENCE AND IS NOT PART OF BUT WILL
ACCOMPANY THE RECORD.
2. THE TRANSCRIPT OF THE HEARING SHOWS THAT EXHIBITS J-2, C-1 AND
R-1 WERE IDENTIFIED BUT NOT OFFERED OR RECEIVED IN EVIDENCE, ALTHOUGH
BOTH COMPLAINANT AND RESPONDENT ASSUMED THEY WERE IN EVIDENCE AND I SO
BELIEVED. THE COMPLAINANT HAS REQUESTED THAT THE RECORD BE CORRECTED TO
SHOW THAT THOSE EXHIBITS ARE PART OF THE RECORD AND THE RESPONDENT HAS
JOINED IN THAT REQUEST. SINCE I CANNOT SPECIFY ANY PHYSICAL ERRORS IN
THE RECORD TO BE CORRECTED IN THIS RESPECT, THOSE IDENTIFIED EXHIBITS
ARE RECEIVED IN EVIDENCE AND ARE MADE PART OF THE RECORD.
3. THE PARTIES STIPULATED THAT THE RECORD IN CASE NO. 40-3470(CA) BE
MADE A PART OF THE RECORD IN THIS CASE. (J. EXH. 2, PAR. 8; TR. 16-18,
58.) THAT CASE WAS LATER DECIDED BY THE ASSISTANT SECRETARY ON AUGUST
15, 1973. FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC TOWER, A/SLMR
NO. 300. THE RECORD IN THAT CASE IS TREATED IN THIS CASE AS THOUGH IT
IS PART OF THE RECORD IN THIS CASE.
4. AT THE CLOSE OF THE HEARING, JULY 11, 1973, WAS FIXED AS THE DATE
FOR FILING BRIEFS. THE RESPONDENT FILED A BRIEF JULY 10, 1973. THE
COMPLAINANT MAILED A BRIEF FROM OVERLAND PARK, KANSAS POSTMARKED JULY 5,
1973, WHICH WAS NOT RECEIVED UNTIL JULY 17, 1973. IT IS CONSIDERED
TIMELY FILED.
ON OCTOBER 20, 1972, PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION (PATCO) OBTAINED EXCLUSIVE RECOGNITION OF NON-SUPERVISORY
AIR TRAFFIC CONTROLLERS AND CERTAIN OTHER EMPLOYEES OF FAA ON A NATIONAL
BASIS (WITH CERTAIN EXCEPTIONS) IN THE DEPARTMENT OF TRANSPORTATION,
A/SLMR NO. 173, JULY 20, 1972. INCLUDED IN THE UNIT ARE THE
NON-SUPERVISORY AIR TRAFFIC CONTROLLERS EMPLOYED BY THE ACTIVITY WHICH
IS THE RESPONDENT, THE KANSAS CITY AIR ROUTE TRAFFIC CONTROL CENTER,
OLATHE, KANSAS. THAT RECOGNITION IS STILL IN EFFECT. THERE IS ALSO IN
EFFECT A NATIONAL AGREEMENT BETWEEN FAA AND PATCO EFFECTIVE APRIL 4,
1973.
AIR TRAFFIC CONTROL ASSOCIATION (ATCA) IS ALSO AN ORGANIZATION OF AIR
TRAFFIC CONTROLLERS, INCLUDING SUPERVISORS. IT WAS OF THE VIEW THAN
SINCE THE DECISION IN PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION,
A/SLMR NO. 10, WHICH HAD HELD IT TO BE A LABOR ORGANIZATION WITHIN THE
MEANING OF THE EXECUTIVE ORDER, IT HAD SO CHANGED ITS ORGANIZATION AND
OPERATION THAT IT WAS NO LONGER SUCH A LABOR ORGANIZATION. THE
RESPONDENT APPARENTLY SHARED THAT VIEW.
IN THE FALL OF 1972 THE RESPONDENT STARTED PUBLICATION OF A HOUSE
NEWS ORGAN NOT YET NAMED. VOLUME I, ISSUE 1 WAS ISSUED UNDER THE
CAPTION "KANSAS CITY ARTCC OLATHE, KANSAS" AND WAS ISSUED IN NOVEMBER
1972. IT CONTAINED ITEMS OF NEWS, HUMOR, CARTOONS, ARTICLES, AND THE
LIKE. PAGE 20 WAS AN ARTICLE UNDER A PATCO MASTHEAD BY ONE OF
RESPONDENT'S AIR TRAFFIC CONTROLLERS WHO WAS ALSO AN OFFICER OF PATCO.
PAGE 22 WAS AN ARTICLE UNDER AN ATCA MASTHEAD BY AN OFFICIAL OF ATCA WHO
WAS ALSO A CONTROLLER SUPERVISOR OF THE RESPONDENT. IT STATED, AMONG
OTHER OBSERVATIONS THAT ATCA WAS A PROFESSIONAL ORGANIZATION AND HAD
ELECTED TO REMAIN SUCH. THE COMPLAINANT CONCEDES (TR. 47) THAT THERE
WAS NO PARTICULAR LANGUAGE IN THAT ARTICLE THAT IT FOUND OBJECTIONABLE
BUT CONTENDS THAT THE MERE PUBLICATION BY RESPONDENT OF AN ARTICLE UNDER
AN ATCA MASTHEAD BY A SUPERVISOR AT THE ACTIVITY CREATED AN ATMOSPHERE
OF ENCOURAGING MEMBERSHIP IN ATCA. IT CONTENDS FURTHER THAT THE
PUBLICATION OF THAT ARTICLE, WRITTEN BY A SUPERVISOR, CONSTITUTED
ASSISTANCE TO A RIVAL LABOR ORGANIZATION IN VIOLATION OF SECTION
19(A)(3), A REFUSAL TO ACCORD PATCO APPROPRIATE RECOGNITION AS THE
EXCLUSIVE REPRESENTATIVE OF THE CONTROLLERS IN VIOLATION OF SECTION
19(A)(5), AND THAT SUCH VIOLATIONS CONSTITUTED DERIVATIVELY A VIOLATION
OF SECTION 19(A)(1).
IN PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, A/SLMR NO. 10,
JANUARY 20, 1971, THE ASSISTANT SECRETARY HELD THAT ATCA WAS A LABOR
ORGANIZATION WITHIN THE MEANING OF SECTION 2(E) OF THE EXECUTIVE ORDER.
THEREAFTER, ATCA SOUGHT TO CEASE BEING A LABOR ORGANIZATION AND TO
BECOME A PROFESSIONAL ORGANIZATION AND TO BE RECOGNIZED AS SUCH. IN
FEDERAL AVIATION ADMINISTRATION, ATLANTA ATC TOWER, A/SLMR NO. 300,
AUGUST 15, 1973, THE ASSISTANT SECRETARY FOUND THAT ATCA HAD "MATERIALLY
CHANGED ITS ORGANIZATION AND OPERATION" SO THAT "THE RECORD DOES NOT
SUPPORT THE CONCLUSION THAT ATCA IS A LABOR ORGANIZATION WITHIN THE
MEANING OF SECTION 2(E) OF THE ORDER" AND THAT "ITS CURRENT RELATIONSHIP
WITH THE FAA IS CONSISTENT WITH THAT PERMITTED A PROFESSIONAL
ASSOCIATION UNDER SECTION 7(D)(3) OF THE ORDER, AS AMENDED."
THERE IS NOTHING IN THE RECORD BEFORE ME TO INDICATE THAT ATCA HAS,
SINCE THE RECORD IN THE ATLANTA ATC TOWER CASE WAS MADE, "CHANGED ITS
ORGANIZATION AND OPERATION" TO AGAIN BECOME A LABOR ORGANIZATION WITHIN
THE MEANING OF SECTION 2(E). INDEED, THERE IS NOTHING TO INDICATE IT
HAS CHANGED AT ALL. IN SUCH CIRCUMSTANCES I AM BOUND BY THE DECISION IN
THE ATLANTA ATC TOWER CASE, AND FIND THAT ATCA IS NOT A LABOR
ORGANIZATION WITHIN THE MEANING OF THE EXECUTIVE ORDER.
IN LIGHT OF THE DECISION IN THE ATLANTA ATC TOWER CASE, THE RECORD
WOULD NOT SUPPORT A CONCLUSION THAT THERE WAS ANYTHING IN THE DEALINGS
BETWEEN RESPONDENT AND ATCA THAT WAS NOT "CONSISTENT WITH THAT PERMITTED
A PROFESSIONAL ASSOCIATION UNDER SECTION 7(D)(3) OF THE ORDER, AS
AMENDED." SECTION 7(D)(3) PERMITS LIMITED DEALING WITH A PROFESSIONAL
ASSOCIATION, AND THE DEALINGS BETWEEN RESPONDENT WITH ATCA HAVE NOT
TRANSGRESSED THOSE LIMITS. ASSUMING, WITHOUT DECIDING, THAT THE
PUBLICATION OF THE ATCA ARTICLE CONSTITUTED ENCOURAGEMENT OF MEMBERSHIP
IN ATCA, THERE IS NOTHING IN THE EXECUTIVE ORDER THAT PROHIBITS THE
ACTIVITY FROM ENCOURAGING MEMBERSHIP IN A PROFESSIONAL ORGANIZATION THAT
IS NOT ALSO A LABOR ORGANIZATION. THE FACT THAT AIR TRAFFIC CONTROLLERS
ARE ELIGIBLE FOR MEMBERSHIP IN BOTH ORGANIZATIONS DOES NOT MAKE
ENCOURAGEMENT OF MEMBERSHIP IN ATCA A VIOLATION OF SECTION 19(A)(3)
WHICH PROSCRIBES ASSISTANCE TO A LABOR ORGANIZATION, NOR A REFUSAL TO
ACCORD APPROPRIATE RECOGNITION TO THE RECOGNIZED LABOR ORGANIZATION IN
VIOLATION OF SECTION 19(A)(5). SUCH ASSISTANCE TO SUCH AN ORGANIZATION
WOULD BE NO MORE VIOLATIVE OF THE EXECUTIVE ORDER THAN WOULD BE
ENCOURAGEMENT OF MEMBERSHIP IN THE ACTIVITY'S RECREATIONAL ASSOCIATION
(IF IT HAS ONE) IN WHICH THE CONTROLLERS ARE ELIGIBLE FOR MEMBERSHIP
BECAUSE THEY ARE EMPLOYEES OF THE ACTIVITY.
THE PUBLICATION OF THE QUESTIONED ARTICLE WAS THUS NOT A VIOLATION OF
THE EXECUTIVE ORDER.
THE COMPLAINT SHOULD BE DISMISSED.
DATED: NOVEMBER 30, 1973
WASHINGTON, D.C.
4 A/SLMR 352; P. 127; CASE NO. 72-3860; FEBRUARY 5, 1974.
LONG BEACH NAVAL SHIPYARD
A/SLMR NO. 352
THIS UNFAIR LABOR PRACTICE PROCEEDING INVOLVED A COMPLAINT FILED BY
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL - LONG BEACH (COMPLAINANT)
ALLEGING THAT THE LONG BEACH NAVAL SHIPYARD (RESPONDENT) VIOLATED
SECTION 19(A)(1) AND (6) OF THE ORDER BASED ON A FOREMAN'S ALLEGED
THREAT TO TAKE ACTION AGAINST AN EMPLOYEE IF THE LATTER WENT TO SEE A
UNION STEWARD WHILE WORKING ON ANY OF THE FOREMAN'S JOBS, AND THE
ALLEGED REFUSAL OF THE FOREMAN TO DISCUSS SETTLEMENT OF THE MATTER.
AT THE TIME OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE,
THE COMPLAINANT AND THE RESPONDENT WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT WHICH SET FORTH A PROCEDURE UNDER WHICH A UNIT
EMPLOYEE WHO HAD A GRIEVANCE OR COMPLAINT COULD CONTACT A REPRESENTATIVE
OF THE COMPLAINANT TO DISCUSS THE MATTER. BASICALLY, THE PROCEDURE
PROVIDED THAT IN THE EVENT AN EMPLOYEE HAD A GRIEVANCE, HE HAD THE
OPTION OF EITHER CONTACTING HIS REPRESENTATIVE PRIVATELY DURING NON-DUTY
HOURS TO ARRANGE FOR A MEETING WITH MANAGEMENT TO DISCUSS THE MATTER,
OR, DURING WORKING TIME, REQUESTING HIS SUPERVISOR TO MAKE ARRANGEMENTS
FOR THE EMPLOYEE TO MEET WITH HIS REPRESENTATIVE.
THE FOREMAN INVOLVED HEREIN ASSIGNED EMPLOYEES SMITH, RANDOLPH AND
LANDRY TO CLEAN A CRANE AT THE SHIPYARD. IN ORDER TO CLEAN THE UPPER
PORTION OF THE CRANE, THE THREE HAD TO BE RAISED IN THE BASKET OF
ANOTHER CRANE. ON THE FOLLOWING DAY, DURING HIS LUNCH BREAK AND
APPARENTLY UNBEKNOWN TO THE FOREMAN, SMITH DISCUSSED WITH A UNION
STEWARD THE PROSPECT OF RECEIVING "HIGH PAY" FOR CLEANING THE CRANE AS
WELL AS THE NEED FOR A RIGGER TO DIRECT THE OPERATOR OF THE OTHER CRANE.
DURING THAT AFTERNOON, THE FOREMAN APPROACHED THE JOB SITE AND, UPON
INQUIRING WHY THE THREE MEN WERE NOT WORKING, WAS TOLD BY SMITH THAT HE
HAD SPOKEN TO A UNION STEWARD CONCERNING "HIGH PAY" AND THE NEED FOR A
RIGGER. THE FOREMAN ADVISED SMITH THAT IF HE EVER LEFT HIS JOB WITHOUT
THE FOREMAN'S CONSENT OR PERMISSION TO SEEK OR SEE A UNION STEWARD, THE
FOREMAN WOULD "PUT HIM OUT OF THE GATE." THE FOREMAN FURTHER STATED
THAT, IF SMITH WANTED TO SEE A UNION STEWARD, HE SHOULD CONTACT THE
FOREMAN, WHO WOULD MAKE THE APPROPRIATE ARRANGEMENTS.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE RESPONDENT'S CONDUCT HEREIN DID NOT VIOLATE
SECTION 19(A)(1). IN THIS REGARD, THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE FOREMAN'S ADMONISHMENT TO
SMITH REFERRED TO SMITH'S LEAVING THE JOB DURING WORKING HOURS AND DID
NOT REFER TO SMITH'S SEEKING A UNION STEWARD ON THE LATTER'S OWN TIME.
CONSEQUENTLY, THE ASSISTANT SECRETARY CONCLUDED THAT THE FOREMAN'S
STATEMENT WAS NOT A THREAT THAT CONSTITUTED AN INFRINGEMENT OF SMITH'S
RIGHTS UNDER EITHER THE ORDER OR THE AGREEMENT BETWEEN THE PARTIES, BUT,
RATHER WAS A LEGITIMATE RESTRICTION OF AN EMPLOYEE TO HIS WORK STATION
DURING WORKING HOURS.
WITH RESPECT TO THE ALLEGED 19(A)(6) VIOLATION, THE ASSISTANT
SECRETARY ADOPTED THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE
FOREMAN'S ALLEGED REFUSAL TO DISCUSS SETTLEMENT OF THE UNFAIR LABOR
PRACTICE COMPLAINT WAS NOT, AS CONTENDED BY THE COMPLAINANT, VIOLATIVE
OF THE ORDER. THE ADMINISTRATIVE LAW JUDGE NOTED THAT THE ASSISTANT
SECRETARY, IN U.S. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE ARMY, ET AL,
A/SLMR NO. 211, HAD CONCLUDED THAT THE OBLIGATION TO CONSULT, CONFER, OR
NEGOTIATE RELATES TO THE COLLECTIVE BARGAINING RELATIONSHIP BETWEEN AN
INCUMBENT LABOR ORGANIZATION AND AN AGENCY OR ACTIVITY AND THAT A
QUESTION RELATING TO COMPLIANCE WITH REGULATIONS IS AN ADMINISTRATIVE
MATTER TO BE HANDLED IN THE PROCESSING OF UNFAIR LABOR PRACTICE CASES.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY.
LONG BEACH NAVAL SHIPYARD
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL - LONG BEACH
ON OCTOBER 24, 1973, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK 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 RULING 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 AND SUPPORTING
BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-3860 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 5, 1974
/1/ ON PAGE 2 OF HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE
LAW JUDGE INADVERTENTLY STATED THAT IT WAS CONTENDED THAT THE ALLEGED
IMPROPER STATEMENT HEREIN WAS MADE ON AUGUST 25, 1973, RATHER THAN ON
AUGUST 25, 1972; AND THAT THE PARTIES MET ON AUGUST 26, 1973, TO
DISCUSS SETTLEMENT OF THE COMPLAINT, RATHER THAN ON AUGUST 26, 1972.
THESE INADVERTENT ERRORS ARE HEREBY CORRECTED.
IN THE MATTER OF
LONG BEACH NAVAL SHIPYARD
AND
FEDERAL EMPLOYEES METAL TRADES
COUNCIL - LONG BEACH
ROBERT OWENS
BUSINESS AGENT, LOCAL 831
UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING
AND PIPE FITTING INDUSTRY
AND
PAUL ENNIS
VICE PRESIDENT OF FEDERAL EMPLOYEES
METAL TRADE COUNCIL, LONG BEACH,
CALIFORNIA
GEOFFREY D. SPINKS
LABOR RELATIONS ADVISOR
LABOR DISPUTES & APPEALS SECTION,
OFFICE OF CIVILIAN MANPOWER MANAGEMENT,
DEPARTMENT OF THE NAVY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
THE PROCEEDING HEREIN AROSE UNDER EXECUTIVE ORDER 11491 (HEREIN
CALLED THE ORDER), PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED
ON JUNE 5, 1973 BY THE REGIONAL ADMINISTRATOR OF THE UNITED STATES
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, SAN
FRANCISCO REGION.
ON OCTOBER 16, 1972, FEDERAL EMPLOYEES METAL TRADES COUNCIL, LONG
BEACH, CALIFORNIA (HEREIN CALLED THE COMPLAINANT) FILED A COMPLAINT
AGAINST LONG BEACH NAVAL SHIPYARD (HEREIN CALLED THE RESPONDENT). THE
COMPLAINT ALLEGED VIOLATIONS BY RESPONDENT OF SECTIONS 19(A)(1), (2) AND
(6) OF THE ORDER BASED ON ALLEGED THREATS BY A FOREMAN TO TAKE ACTION
AGAINST AN EMPLOYEE IF THE LATTER WENT TO SEE A UNION STEWARD WHILE
WORKING ON ANY OF THE FOREMAN'S JOBS. BASED ON THE SAME FACTS
COMPLAINANT FILED AN AMENDED COMPLAINT ON APRIL 30, 1973 DELETING THE
ALLEGED VIOLATIONS OF SECTION 19(A)(2) OF THE ORDER.
A HEARING WAS HELD BEFORE THE UNDERSIGNED ON AUGUST 22, 1973 AT LOS
ANGELES, CALIFORNIA. BOTH PARTIES WERE REPRESENTED THEREAT, AND WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO
EXAMINE AS WELL AS CROSS-EXAMINE WITNESSES. THEREAFTER THE PARTIES
FILED BRIEFS WHICH HAVE BEEN DULY CONSIDERED BY THE UNDERSIGNED.
COMPLAINANT CONTENDS THAT THE STATEMENT MADE BY FOREMAN HAROLD TO
EMPLOYEE JOHN SMITH ON AUGUST 25, 1973 REGARDING LEAVING WORK TO FIND A
UNION STEWARD WAS A DENIAL OF UNION REPRESENTATION. IT INSISTS THE
REMARK BY THE SUPERVISOR WAS COERCIVE IN NATURE, AND CONSTITUTED A
VIOLATION OF SECTION 19(A)(1) OF THE ORDER. FURTHER, COMPLAINANT
MAINTAINS THAT WHEN THE PARTIES MET TO DISCUSS SETTLEMENT OF THE
COMPLAINT ON AUGUST 26, 1973, THE FOREMAN DID NOT WANT TO DISCUSS THE
MATTER OR SETTLE IN GOOD FAITH. THIS ACTION WAS ALLEGEDLY A REFUSAL TO
RECOGNIZE THE UNION AGENT, AS WELL AS A REFUSAL TO ENTERTAIN THE
GRIEVANCE, AND CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
/1/
IT IS URGED BY RESPONDENT THAT THE FOREMAN MERELY ADVISED THE
EMPLOYEE NOT TO LEAVE HIS JOB TO FIND A STEWARD WITHOUT FOLLOWING THE
CONTRACTUAL PROCEDURE OF MAKING ARRANGEMENTS THROUGH HIS SUPERVISOR.
FURTHER, THE FAILURE TO SETTLE THE MATTER CANNOT BE DEEMED A VIOLATION
OF THE OBLIGATION TO CONSULT, CONFER, OR NEGOTIATE AS REQUIRED BY THE
ORDER. VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE ORDER ARE DENIED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
1. AT ALL TIMES MATERIAL HEREIN, AND DURING 1972, COMPLAINANT WAS THE
EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL UNGRADED EMPLOYEES IN THE
SHIPYARD OF RESPONDENT.
2. COMPLAINANT AND RESPONDENT EXECUTED A WRITTEN COLLECTIVE
BARGAINING AGREEMENT ON NOVEMBER 1, 1971 WHICH, BY ITS TERMS, WAS
EFFECTIVE FOR TWO YEARS FROM ITS DATE OF APPROVAL (NOVEMBER 10, 1971).
3. SECTION 6 OF THE AFOREMENTIONED AGREEMENT PROVIDES, IN PERTINENT
PART, AS FOLLOWS:
SECTION 6. ANY EMPLOYEE IN THE UNIT, WHO HAS A COMPLAINT OR AN
ALLEGED GRIEVANCE HAS THE
RIGHT, AND SHALL BE PROTECTED IN THE EXERCISE OF THAT RIGHT, TO
DISCUSS THE MATTER WITH A
COUNCIL REPRESENTATIVE OF HIS CHOICE.
A UNIT EMPLOYEE MAY REQUEST THE SERVICES OF A SPECIFIC COUNCIL
REPRESENTATIVE, EITHER
THROUGH HIS SUPERVISOR OR PRIVATELY DURING NON-DUTY HOURS, SUCH AS
LUNCH PERIODS, BEFORE AND
AFTER WORK.
IN THOSE CASES WHERE AN EMPLOYEE, THROUGH HIS SUPERVISOR, REQUESTS
THE SERVICES OF A
COUNCIL REPRESENTATIVE, THAT SUPERVISOR WILL ARRANGE THE DATE, TIME
AND PLACE AT WHICH THE
EMPLOYEE CAN EXPECT TO MEET WITH THE REQUESTED COUNCIL
REPRESENTATIVE.
IN THOSE CASES WHERE AN EMPLOYEE, PRIVATELY DURING NON-DUTY HOURS,
REQUESTS THE SERVICES OF
A COUNCIL REPRESENTATIVE, THAT COUNCIL REPRESENTATIVE WILL SO NOTIFY
HIS SUPERVISOR WHO WILL
ARRANGE THE DATE, TIME AND PLACE AT WHICH THE COUNCIL REPRESENTATIVE
CAN EXPECT TO MEET WITH
THE EMPLOYEE WHO REQUESTED HIS SERVICES.
IN EITHER CASE THE RESPONSIBLE SUPERVISOR WILL ADVISE THE EMPLOYEE OR
THE COUNCIL
REPRESENTATIVE OF THE ARRANGEMENTS MADE.
4. JOHN SMITH, JR., HERBERT LANDRY, AND RICHARD RANDOLPH WERE
EMPLOYED BY RESPONDENT AS TANK CLEANERS IN DEPARTMENT 72, AND WERE
SUPERVISED BY FOREMAN JAMES HAROLD, DURING ALL TIMES MATERIAL HEREIN.
5. ON AUGUST 24, 1972 FOREMAN HAROLD ASSIGNED EMPLOYEES JOHN SMITH,
JR., (HEREINAFTER CALLED SMITH), HERBERT LANDRY, (HEREINAFTER CALLED
LANDRY), AND RICHARD RANDOLPH (HEREINAFTER CALLED RANDOLPH) TO CLEAN A
CRANE ON THE WEST SIDE OF A DRYDOCK. IN ORDER TO STEAM CLEAN THE UPPER
PART OF THE CRANE, THE EMPLOYEES HAD TO BE RAISED IN A "BASKET" OF
ANOTHER CRANE TO REACH THE SECTION OR PART OF THE CRANE TO BE CLEANED.
6. ON THE SAME DATE THAT THE AFOREMENTIONED EMPLOYEES WERE ASSIGNED
TO CLEAN THE CRANE, AUGUST 24, 1972, THEY DISCUSSED AMONG THEMSELVES THE
PROSPECT OR IDEA OF RECEIVING "HIGH PAY" FOR THIS WORK, AS WELL AS A
RIGGER BEING NEEDED TO SIGNAL THE CRANE OPERATOR WHEN THE TANK CLEANERS
ARE STATIONED IN THE BASKET AND CLEANING THE CRANE. SMITH STATED TO THE
OTHERS THAT HE WOULD TALK TO FOREMAN HAROLD ABOUT BOTH MATTERS.
7. SMITH TESTIFIED AND I FIND THAT ON AUGUST 25 AT NOON, AND DURING
HIS LUNCH TIME, HE SPOKE TO WALLACE, UNION STEWARD FOR LABORER'S 110,
LABOR COUNCIL REPRESENTATIVE, ABOUT THE FACT THAT NO RIGGER WAS PRESENT
TO GUIDE THE CRANE BASKET AND THAT THE MEN DID NOT RECEIVE "HIGH PAY"
FOR GOING UP IN THE BASKET; THAT WALLACE SAID HE DID NOT KNOW IF THE
MEN SHOULD RECEIVE SUCH "HIGH PAY", AND HE WOULD CHECK INTO IT, BUT THE
MEN SHOULD HAVE A RIGGER WITH THEM.
8. SMITH TESTIFIED, FURTHER, THAT ON AUGUST 25 BETWEEN 2:00 P.M.
AND 2:30 P.M., HE WENT OVER TO THE EAST SIDE OF THE DRYDOCK TO GET A
SODA; THAT AS HE LEFT THE "COKE MACHINE" HE MET HAROLD WHO ASKED HIM
WHERE HE WAS GOING AND SMITH SAID HE WAS RETURNING TO WORK, THAT THEY
WALKED BACK TO THE JOB TOGETHER AND THE FOREMAN INQUIRED WHY THE BASKET
WAS DOWN AND SMITH MENTIONED HE HAD TALKED TO WALLACE WHO SAID THEY
SHOULD HAVE A RIGGER; THAT SMITH TOLD HAROLD HE WAS NOT GOING BACK UP
IN THE BASKET UNTIL THE MEN HAD A RIGGER, AND THE FOREMAN REPLIED SMITH
WILL DO SO IF HE IS TOLD; THAT HE TOLD THE FOREMAN HE HAD TALKED TO
WALLACE, AND HAROLD REPLIED "ANYTIME YOU GO AND SEE A STEWARD FROM ANY
OF MY JOBS WITHOUT PERMISSION, WITHOUT MY PERMISSION I AM GOING TO PUT
YOU OUT OF GATE 5;" AND THE FOREMAN, WHILE MAKING THIS STATEMENT TO
SMITH, WAS SHAKING HIS FINGER IN FRONT OF THE LATTER'S FACE; THAT SMITH
STATED THE FOREMAN WAS LETTING HIS HAT GO TO HIS HEAD, WHEREUPON HAROLD
THREW THE HAT TO THE GROUND AND SAID HE WOULD GROUND SMITH'S BIG ASS;
THAT HAROLD TOLD HIM TO RETURN TO WORK, AND HE THEREUPON WENT BACK TO
HIS JOB.
LANDRY TESTIFIED THAT ON AUGUST 25 AT ABOUT 3:30 P.M. HAROLD CAME UP
ALONE TO WHERE THE THREE TANK CLEANERS WERE STANDING AND AWAITING THE
OTHER CRANE TO ASSIST THEM IN THEIR JOB. ACCORDING TO LANDRY, THE
FOREMAN ASKED THEM WHY THEY WERE NOT IN THE BASKET, AND THE MEN REPLIED
THEY WERE WAITING FOR A RIGGER TO DIRECT THE CRANE. SMITH RAISED THE
QUESTION OF "HIGH PAY" FOR THE JOB, AND TOLD HAROLD THE MEN CAN'T GO UP
IN THE BASKET WITHOUT ASSISTANCE. THE FOREMAN ALLEGEDLY REPLIED THAT
"IF I TELL YOU TO GO UP THERE YOU WILL GO UP THERE." FURTHER, LANDRY
TESTIFIED A DISCUSSION ENSUED ABOUT A UNION STEWARD AND HAROLD TOLD
SMITH " . . . IF YOU EVER GO THROUGH A UNION STEWARD WITHOUT MY CONSENT
I WILL PUT YOU OUT OF GATE 5."
TESTIMONY BY RANDOLPH REFLECTS THAT AT APPROXIMATELY 1:30 P.M. OR
2:00 P.M. HAROLD APPROACHED THE JOB AND ENGAGED IN A CONVERSATION WITH
SMITH REGARDING HIGH PAY FOR THEIR CLEANING THE CRANE. THIS WITNESS
TESTIFIED THAT THE FOREMAN SAID, "IF YOU EVER GO AND LEAVE MY JOB AND
SEE A SHIP STEWARD WITHOUT MY CONSENT THAT (SIC) I WILL PUT YOU OUT AT
GATE 5." SMITH ALLEGEDLY REPLIED HE DIDN'T GO OFF THE JOB BUT HAD SEEN
WALLACE ON HIS LUNCH HOUR. RANDOLPH CONFIRMS EARLIER TESTIMONY THAT
SMITH TOLD HAROLD TO GET HIS FINGERS OUT OF THE EMPLOYEE'S FACE; THAT
SMITH TOLD THE FOREMAN HE WAS LETTING HIS HAT GO TO HIS HEAD, AND HAROLD
THREW OFF HIS HAT AND SAID HE WOULD GROUND SMITH'S BIG ASS.
FOREMAN HAROLD TESTIFIED THAT ON AUGUST 25 AT ABOUT 1:00 P.M. OR 1:30
P.M. HE CAME ACROSS THE DRY DOCK TO THE CRANE WHERE LANDRY AND RANDOLPH
WERE ON THE JOB. SMITH WAS, ACCORDING TO THE FOREMAN, APPROACHING THE
AREA AND HE TOLD HAROLD THE MEN WERE NOT SUPPOSED TO GO ON THE CRANE
WITHOUT A RIGGER. HAROLD MAINTAINS HE ASKED SMITH WHERE HE HAD BEEN AND
THE LATTER REPLIED HE WENT TO FIND A STEWARD. THE FOREMAN THEN SAID,
"JOHN, YOU KNOW BETTER THAN TO LEAVE THE JOB AND GO FIND A STEWARD."
AFTER SMITH RETORTED THAT HE GOES WHERE HE WANTS, HAROLD SAID " . . .
NOT DURING WORKING HOURS . . . FURTHERMORE YOU CAN BE PUT OUT THE GATE
FOR GOING TO FIND A STEWARD WITHOUT AUTHORIZATION." THE FOREMAN FURTHER
TESTIFIED THAT HE TOLD SMITH IF HE WANTED A STEWARD HE SHOULD GO THROUGH
CHANNELS AND HAROLD WOULD GET HIM ONE. HAROLD CONFIRMS THE TESTIMONY BY
THE OTHER WITNESSES THAT SMITH ADMONISHED HAROLD TO GET HIS HAND OUT OF
THE EMPLOYEE'S FACE, BUT DENIES THE ALLEGED THREAT BY HIM TO "GROUND
SMITH'S BIG ASS." MOREOVER, THE FOREMAN AVERS SMITH THREATENED TO
"KNOCK" HIM ON HIS ASS IF HAROLD DID NOT GET HIS HAND OUT OF SMITH'S
FACE. HAROLD TESTIFIED HE CALLED HIS GENERAL FOREMAN TO REPORT THE
MATTER, BUT THE LATTER WAS NOT THERE AND THE FOREMAN DROPPED THE MATTER.
WHILE THERE ARE DISCREPANCIES AMONG THE VERSIONS GIVEN BY THE FOUR
WITNESSES REGARDING THE INCIDENT ON AUGUST 25, I DO NOT FEEL COMPELLED
TO RESOLVE THOSE VARIANCES DEALING WITH THE TIME SEQUENCE, THE LOCATION
WHERE SMITH AND HAROLD MET ON THAT DATE, THE MINOR DETAILS CONCERNING
COMMENTS REGARDING THE WORK, OR REMARKS OF PHYSICAL VIOLENCE UNRELATED
TO SMITH'S SEEKING A UNION STEWARD. SINCE THE THREE EMPLOYEES TESTIFIED
CORROBORATIVELY, FOR THE MOST PART, TO THE SUBSTANTIVE PORTION OF THE
DISCUSSION BETWEEN HAROLD AND SMITH, I FIND THAT FOREMAN HAROLD STATED
TO SMITH ON AUGUST 25 THAT IF HE EVER LEFT HIS JOB WITHOUT THE FOREMAN'S
CONSENT OR PERMISSION TO SEEK OR SEE A UNION STEWARD, HAROLD WOULD PUT
HIM OUT OF THE GATE. /2/ I FURTHER FIND THAT THE FOREMAN STATED TO
SMITH ON THAT DATE THAT IF HE WANTS TO SEE A UNION STEWARD, HE SHOULD
CONTACT HAROLD AND THE LATTER WOULD MAKE ARRANGEMENTS THEREFOR.
9. SMITH DID NOT ASK FOREMAN HAROLD FOR PERMISSION TO SPEAK WITH A
UNION STEWARD ON AUGUST 25, NOR DID HAROLD GRANT PERMISSION TO SMITH TO
LEAVE THE JOB ON AUGUST 25 IN ORDER TO FIND, OR SPEAK WITH, A UNION
STEWARD.
10. ON SEVERAL OCCASIONS PRIOR TO AUGUST 25 SMITH HAD SPOKEN TO
HAROLD REGARDING HIS DESIRE TO SEE A UNION OFFICIAL. ON SAID OCCASION
HAROLD MADE ARRANGEMENTS FOR SMITH TO CONTACT A UNION REPRESENTATIVE,
AND THE SAID EMPLOYEE DID, IN FACT, CONFER WITH THE UNION AGENT AS A
RESULT OF SAID ARRANGEMENTS MADE BY THE FOREMAN.
BOTH THE SPIRIT AND THE LETTER OF THE ORDER, AS WELL AS DECISIONAL
LAW ISSUED BY THE ASSISTANT SECRETARY, DEMONSTRATE CLEARLY THAT
EMPLOYEES ARE ENTITLED TO SELECT, AND CONFER WITH, UNION REPRESENTATIVES
IN RESPECT TO COMPLAINTS OR GRIEVANCES CONCERNING WORKING CONDITIONS.
THIS DOCTRINE IS NOT, AS I UNDERSTAND THE CASE AT BAR, DISPUTED BY
RESPONDENT HEREIN. THE SOLE ISSUE IS WHETHER RESPONDENT, BY VIRTUE OF
FOREMAN HAROLD'S REMARKS TO EMPLOYEE SMITH ON AUGUST 25, 1972, INFRINGED
UPON THESE RIGHTS. STATED OTHERWISE, IT MUST BE DETERMINED IF THE
FOREMAN THREATENED TO AFFECT SMITH'S EMPLOYMENT SHOULD THE LATTER
EXERCISE HIS RIGHTS GUARANTEED UNDER SECTION 1 OF THE ORDER.
ORDERLY AND EFFICIENT CONDUCT OF ANY EMPLOYER'S OPERATIONS WOULD
NECESSARILY DICTATE THAT EMPLOYEES REMAIN AT THEIR POSTS OR AREAS DURING
WORKING HOURS UNLESS PERMISSION IS GRANTED TO DO OTHERWISE. SUCH
RESTRICTION WOULD, IT SEEMS, LOGICALLY APPLY TO ANY DEPARTURE FROM THE
JOB, INCLUDING MEETINGS OR DISCUSSIONS BETWEEN EMPLOYEES AND THEIR UNION
REPRESENTATIVES. THE MAXIM "WORKING TIME IS FOR WORK" HAS BEEN ACCEPTED
IN THE PRIVATE SECTOR AND MANAGEMENT HAS BEEN EXCULPATED FROM ANY
WRONGDOING WHEN IT RESISTED UNAUTHORIZED WORK BREAKS EVEN TO TRANSACT
UNION BUSINESS. ASSOCIATED RETAILERS' SUBURBAN DELIVERY CO. 181 NLRB
456.
THE CIRCUMSTANCES HEREIN DO NOT SUSTAIN COMPLAINANT'S CONTENTION THAT
THE FOREMAN'S REMARKS CONSTITUTED AN INFRINGEMENT UNDER THE ORDER. EVEN
ACCEPTING THE VERSION AS STATED BY SMITH, THE WARNING ISSUED TO HIM LIES
WITHIN PERMISSIBLE BOUNDS. THUS, HAROLD'S CAVEAT NOT TO LEAVE HIS JOBS
TO SEE A UNION STEWARD, UNDER PENALTY OF BEING "PUT OUT THE GATE,"
UNLESS SMITH RECEIVED THE FOREMAN'S PERMISSION, IS NO MORE THAN A PROPER
CONFINEMENT OF AN EMPLOYEE TO HIS WORK. I DO NOT CONSTRUE THE
ADMONITION TO SMITH TO INCLUDE NOT VISITING THE UNION STEWARD ON
NON-WORKING TIME. CONTINUAL REFERENCE IS MADE TO SMITH'S NOT LEAVING THE
FOREMAN'S JOB WITHOUT PERMISSION OR CONSENT - AN APPROVAL NOT REQUIRED
OR EXPECTED DURING NON-WORKING HOURS - AND I AM PERSUADED THAT HAROLD'S
PROHIBITION EXTENDED ONLY TO WORKING TIME. MOREOVER, I DO NOT DEEM
HAROLD'S STATEMENT AS AN ATTEMPT TO DENY UNION REPRESENTATION TO SMITH.
RECORD TESTIMONY REFLECTS THAT SMITH HAD, ON PRIOR OCCASIONS, SOUGHT TO
CONFER WITH UNION STEWARDS OR REPRESENTATIVES AND THAT HE HAD MADE THIS
REQUEST THROUGH THE FOREMAN. IN ACCORDANCE WITH THESE REQUESTS, HAROLD
HAD ARRANGED MEETINGS BETWEEN SMITH AND THE PARTICULAR UNION
REPRESENTATIVES. NO EVIDENCE WAS PRESENTED TO ESTABLISH ATTEMPTS BY THE
SUPERVISOR TO THWART THE EMPLOYEE'S RIGHTS IN THIS RESPECT, AND I DO NOT
CONCLUDE THAT HAROLD WAS ATTEMPTING TO FRUSTRATE SMITH'S RIGHTS TO UNION
CONSULTATION PROVIDED HE DID SO AT THE PROPER TIME.
THE PARTIES THEMSELVES HAVE MADE PROVISION FOR AN EMPLOYEE TO SEEK
SERVICES OF A UNION REPRESENTATIVE WHENEVER HE HAS A COMPLAINT OR
GRIEVANCE REGARDING HIS EMPLOYMENT. THUS, SECTION 6 OF THE CONTRACT
SPECIFICALLY PROVIDES THAT AN EMPLOYEE MAY REQUEST THE ASSISTANCE OF A
COUNCIL REPRESENTATIVE, "EITHER THOUGH HIS SUPERVISOR OR PRIVATELY
DURING NON-DUTY HOURS, SUCH AS LUNCH PERIOD, BEFORE AND AFTER WORK."
(UNDERSCORING SUPPLIED) FURTHER PROVISION IS MADE IN THIS SECTION FOR
THE SUPERVISOR, WHEN THE REQUEST IS THROUGH HIM, TO ARRANGE THE DATE,
TIME AND PLACE OF THE MEETING BETWEEN THE EMPLOYEE AND THE UNION
REPRESENTATIVE. WHILE THE AGREEMENT MAKES NO SPECIFIC REFERENCE AS TO
THE PARTICULAR TIME WHEN THE MEETING SHALL OCCUR, IT DOES REQUIRE THAT
ANY REQUESTS MADE DURING WORKING HOURS FOR THE SUPERVISOR. THUS, HAROLD
WOULD BE ENTITLED TO EXPECT THAT, DURING DUTY TIME, SMITH WOULD BE
ENTITLED TO EXPECT THAT, DURING DUTY TIME, SMITH FOLLOW THIS PROCEDURE
AND HIS COMMENT TO THE EMPLOYEE ON AUGUST 25 IS IN CONFIRMITY WITH THE
AFORESAID CONTRACTUAL LANGUAGE.
IN SUM, I DO NOT CONCLUDE THAT HAROLD'S STATEMENT WAS A THREAT THAT
CONSTITUTED AN INFRINGEMENT OF SMITH'S RIGHTS UNDER EITHER THE ORDER OR
THE CONTRACT BETWEEN THE PARTIES. IT WAS NOT, IN MY OPINION, COERCIVE
IN NATURE SINCE IT WAS A LEGITIMATE RESTRICTION OF AN EMPLOYEE TO HIS
WORK STATION DURING WORKING HOURS.
THE FAILURE OR REFUSAL BY FOREMAN HAROLD TO DISCUSS SETTLEMENT OF THE
COMPLAINT HEREIN IS NOT, AS CONTENDED BY COMPLAINT, A REFUSAL TO
ENTERTAIN A GRIEVANCE, OR TO A REFUSAL TO CONFER OR CONSULT, UNDER THE
ORDER. AS STATED BY THE ASSISTANT SECRETARY IN U.S. DEPARTMENT OF
DEFENSE, DEPT. OF THE ARMY, ET AL A/SLMR NO. 211, THE OBLIGATION TO
CONSULT, CONFER OR NEGOTIATE RELATES TO THE COLLECTIVE BARGAINING
RELATIONSHIP BETWEEN AN INCUMBENT LABOR ORGANIZATION AND AN AGENCY OR
ACTIVITY. THE QUESTION AS TO COMPLIANCE WITH REGULATIONS IS AN
ADMINISTRATIVE MATTER TO BE HANDLED IN THE PROCESSING OF UNFAIR LABOR
PRACTICE CASES. ACCORDINGLY, WHETHER OR NOT RESPONDENT ATTEMPTED TO
RESOLVE THE DISPUTE HEREIN AMICABLY IS NOT A PROPER ISSUE BEFORE ME FOR
DETERMINATION.
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, THE
UNDERSIGNED RECOMMENDS THE COMPLAINT AGAINST RESPONDENT HEREIN BE
DISMISSED.
DATED: OCTOBER 24, 1973
WASHINGTON, D.C.
/1/ IN ITS BRIEF COMPLAINANT OBJECTS TO RESPONDENT'S CALLING TWO
UNION WITNESSES AND PAYING THEM FOR ATTENDING THE HEARING, MAINTAINING
THAT ALL REPRESENTATIVES OF BOTH PARTIES SHOULD BE ON TIME ALLOWED. AS
THIS ISSUE IS NOT BEFORE ME FOR CONSIDERATION, NOR WITHIN THE
ALLEGATIONS OF THE COMPLAINT, I MAKE NO RECOMMENDATIONS WITH REGARD
THERETO.
/2/ WHILE LANDRY DID NOT TESTIFY THAT HAROLD REFERRED TO SMITH'S
LEAVING THE JOB TO FIND A UNION STEWARD, THE THRUST OF THE INTERDICTION,
AS CONFIRMED BY ALL OTHER WITNESSES, WAS LIMITED TO LEAVING THE JOB
SITE. MOREOVER, THE TENOR OF THE WITNESSES' TESTIMONY REFLECTS, AND I
FIND, THAT THE FOREMAN'S ADMONISHMENT WAS REFERRABLE TO SMITH'S LEAVING
THE JOB DURING WORKING HOURS AND NOT ON HIS OWN TIME.
4 A/SLMR 351; P. 124; CASE NO. 72-3823(CU); FEBRUARY 5, 1974.
DEPARTMENT OF THE ARMY,
STRATEGIC COMMUNICATIONS COMMAND,
FORT HUACHUCA, ARIZONA
A/SLMR NO. 351
THIS CASE INVOLVES A PETITION FOR CLARIFICATION OF UNIT FILED BY THE
DEPARTMENT OF THE ARMY, STRATEGIC COMMUNICATIONS COMMAND, FORT HUACHUCA,
ARIZONA (STRATCOM) IN WHICH IT SEEKS TO EXCLUDE THE EMPLOYEES OF THE
NEWLY FORMED COMMUNICATIONS SECURITY LOGISTICS AGENCY (CSLA), PREVIOUSLY
A COMPONENT OF THE UNITED STATES ARMY COMMUNICATIONS ELECTRONICS
ENGINEERING INSTALLATION AGENCY (CEEIA) FROM AN EXISTING BARGAINING UNIT
BECAUSE, IN STRATCOM'S VIEW, THE ESTABLISHMENT OF CSLA AS A SEPARATE,
INDEPENDENT ACTIVITY AT FORT HUACHUCA, AS A RESULT OF A REORGANIZATION,
HAD EFFECTIVELY DESTROYED THE COMMUNITY OF INTEREST WHICH PREVIOUSLY
EXISTED BETWEEN THE EMPLOYEES OF THE CEEIA AND THE EMPLOYEES OF THE
OTHER COMPONENTS INCLUDED IN THE CERTIFIED UNIT.
THE INCUMBENT EXCLUSIVE REPRESENTATIVE, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1662, FORT HUACHUCA, ARIZONA (AFGE)
CONTENDED THAT THE REORGANIZATION AMOUNTED MERELY TO A "PAPER TRANSFER"
OF THE EMPLOYEES INVOLVED TO ANOTHER COMMAND. IT MAINTAINED THAT,
DESPITE THE REORGANIZATION, THE JOB FUNCTIONS OF THE EMPLOYEES INVOLVED
HAVE NOT CHANGED, AND FURTHERMORE, THE DAY-TO-DAY OPERATIONS CONTINUE TO
BE THE SAME AS THEY WERE BEFORE THE REORGANIZATION.
THE ASSISTANT SECRETARY FOUND THAT THE EMPLOYEES OF THE CSLA
CONTINUE, AFTER THE REORGANIZATION, TO SHARE A COMMUNITY OF INTEREST
WITH THE OTHER EMPLOYEES OF THE EXISTING UNIT AT FORT HUACHUCA. HE
NOTED THAT THE EMPLOYEES OF CSLA HAVE REMAINED AT THE SAME PHYSICAL
LOCATION, PERFORMING THE SAME WORK, UNDER THE SAME IMMEDIATE SUPERVISION
AND WORKING CONDITIONS, AND CONTINUE TO HAVE THE SAME DAY-TO-DAY CONTACT
WITH OTHER UNIT EMPLOYEES AS EXISTED PRIOR TO THE REORGANIZATION. ALSO,
CSLA CONTINUES TO RECEIVE THE SAME ADMINISTRATIVE SERVICES FROM
STRATCOM, INCLUDING THE SERVICES OF THE FORT HUACHUCA CIVILIAN PERSONNEL
OFFICE SUCH AS PERSONNEL, LABOR RELATIONS AND GRIEVANCE HANDLING.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE INSTANT PETITION
BE DISMISSED.
DEPARTMENT OF THE ARMY,
STRATEGIC COMMUNICATIONS COMMAND,
FORT HUACHUCA, ARIZONA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1662,
FORT HUACHUCA, ARIZONA
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER THOMAS R. WILSON.
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 OF THE
PARTIES, THE ASSISTANT SECRETARY AFFIRMED.
THE PETITIONER, DEPARTMENT OF THE ARMY, STRATEGIC COMMUNICATIONS
COMMAND, FORT HUACHUCA, ARIZONA, HEREIN CALLED STRATCOM, SEEKS
CLARIFICATION OF AN EXISTING BARGAINING UNIT IN ORDER TO HAVE IT CONFORM
TO CHANGES RESULTING FROM A RECENT REORGANIZATION. MORE SPECIFICALLY,
STRATCOM CONTENDS THAT EMPLOYEES OF THE NEWLY FORMED COMMUNICATIONS
SECURITY LOGISTICS AGENCY, HEREIN CALLED CSLA, FORMERLY A COMPONENT OF
THE UNITED STATES ARMY COMMUNICATIONS ELECTRONICS ENGINEERING
INSTALLATION AGENCY, HEREIN CALLED CEEIA, SHOULD BE EXCLUDED FROM THE
EXISTING BARGAINING UNIT BECAUSE THEIR REMOVAL FROM CEEIA AND THE
ESTABLISHMENT OF CSLA AS A SEPARATE, INDEPENDENT TENANT ACTIVITY AT FORT
HUACHUCA EFFECTIVELY DESTROYED THE COMMUNITY OF INTEREST WHICH
PREVIOUSLY EXISTED BETWEEN EMPLOYEES OF CEEIA AND EMPLOYEES OF THE OTHER
COMPONENTS INCLUDED IN THE CERTIFIED UNIT. STRATCOM ARGUES THAT THE
CONTINUED INCLUSION OF EMPLOYEES OF CSLA-- NOW A COMPONENT OF THE UNITED
STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY, HEREIN
CALLED ECOM-- IN THE EXISTING UNIT WOULD NOT PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS AND WOULD MAKE A VIABLE
LABOR-MANAGEMENT RELATIONSHIP IMPRACTICAL. THE INCUMBENT EXCLUSIVE
REPRESENTATIVE, AMERICAN FEDERATION OF GOVERNMENT, AFL-CIO, LOCAL 1662,
FORT HUACHUCA, ARIZONA, HEREIN CALLED AFGE, CONTENDS THAT THE
REORGANIZATION AMOUNTED MERELY TO A "PAPER TRANSFER" OF THE EMPLOYEES
INVOLVED TO ANOTHER COMMAND. THE AFGE MAINTAINS THAT, DESPITE THE
REORGANIZATION, THE JOB FUNCTIONS OF THE EMPLOYEES INVOLVED HAVE NOT
CHANGED AND, FURTHERMORE, THE DAY-TO-DAY OPERATIONS CONTINUE TO BE THE
SAME AS THEY WERE BEFORE THE REORGANIZATION. IT URGES THE ASSISTANT
SECRETARY TO PERMIT THE ONGOING AND BENEFICIAL RELATIONSHIP TO CONTINUE
BY HOLDING THAT THE CSLA EMPLOYEES SHOULD REMAIN IN THE EXISTING
BARGAINING UNIT. /1/
THE EVIDENCE ESTABLISHES THAT IN 1967, THE COMMUNICATIONS SECURITY
DIRECTORATE, HEREIN CALLED COMSEC, AN ENTITY WITHIN STRATCOM, WAS MOVED
FROM WASHINGTON, D.C. TO FORT HUACHUCA, ARIZONA. SUBSEQUENTLY, IN
SEPTEMBER OF 1970, COMSEC BECAME A PART OF CEEIA, AND ON DECEMBER 28,
1971, THE AFGE WAS CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE IN A UNIT
CONSISTING OF "ALL WAGE GRADE AND GENERAL SCHEDULE NONPROFESSIONAL
EMPLOYEES OF THE HEADQUARTERS UNITED STATES ARMY STRATEGIC
COMMUNICATIONS COMMAND, UNITED STATES ARMY COMMUNICATIONS-ELECTIONICS
ENGINEERING INSTALLATION AGENCY, COMMUNICATIONS ELECTRONICS ENGINEERING
INSTALLATION AGENCY-- WESTERN HEMISPHERE, AND HEADQUARTERS FORT
HUACHUCA, LOCATED AT FORT HUACHUCA, AND PROCUREMENT ANNEXES SERVICED BY
HEADQUARTERS, FORT HUACHUCA CIVILIAN PERSONNEL OFFICE, EXCLUDING
SUPERVISORS, MANAGERS, PROFESSIONAL EMPLOYEES, GUARDS AND PERSONS
PERFORMING FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
CAPACITY, AND CASUAL EMPLOYEES." /2/
SUBSEQUENTLY, ON OCTOBER 1, 1972, A REORGANIZATION WAS EFFECTUATED
WHEREBY COMSEC WAS REMOVED AS A COMPONENT OF CEEIA, WAS REDESIGNATED AS
CSLA AND THE LATTER BECAME A COMPONENT OF ECOM. FURTHER, CSLA BECAME A
TENANT OF FORT HUACHUCA AND ENTERED INTO A HOST-TENANT AGREEMENT WITH
HEADQUARTERS, FORT HUACHUCA. THE RECORD REVEALS THAT THE HOST-TENANT
AGREEMENT SPECIFIED THAT THE HOST WOULD PROVIDE THE SAME ADMINISTRATIVE
AND LOGISTICS SUPPORT SERVICES TO CSLA WHICH IT HAD PROVIDED PREVIOUSLY
TO COMSEC WHEN THE LATTER WAS A COMPONENT ORGANIZATION OF STRATCOM.
THESE SERVICES, WHICH ARE IDENTICAL TO THOSE PROVIDED IN SIMILAR
AGREEMENTS WITH OTHER TENANTS OF THE FORT, INCLUDE THE FURNISHING OF ALL
BUILDINGS, MAINTENANCE, OFFICE SUPPLIES, CIVILIAN PERSONNEL SERVICES,
HEALTH SERVICES, TRANSPORTATION, COMPUTER FACILITIES, DISPOSAL SERVICES,
TELEPHONE SERVICES, MACHINE REPAIR AND SERVICING, SNACK BAR, CAFETERIA
AND COMMISSARY FACILITIES, MAIL SERVICES, JANITORIAL SERVICES,
MAINTENANCE ENGINEERING, FINANCE AND ACCOUNTING, AND THE SERVICES OF
CIVILIAN WELFARE COUNCIL.
THE RECORD REVEALS THAT THE FORT HUACHUCA CIVILIAN PERSONNEL OFFICE,
(CPO) HANDLES PERSONNEL FUNCTIONS AND LABOR-MANAGEMENT RELATIONS FOR THE
FORT AND ITS TENANT ACTIVITIES, AND THAT VIRTUALLY ALL PERSONNEL
POLICIES AND REGULATIONS ADMINISTERED BY THE CPO APPLY TO EMPLOYEES OF
FORT HUACHUCA AND ITS TENANTS. THE CPO HANDLES LABOR RELATIONS ON A
COMPONENT-BY-COMPONENT BASIS IN ORDER TO TAKE INTO ACCOUNT SPECIFIC
PROBLEM AREAS THAT INDIVIDUAL COMPONENTS MAY HAVE. THE PROCESSING OF
ALL PROMOTIONS AND REDUCTIONS-IN-FORCE (RIF'S) ARE HANDLED THROUGH THE
CPO EVEN THOUGH DIFFERENT COMPETITIVE AREAS ARE INVOLVED. /3/
SIMILARLY, ALL GRIEVANCES ARE PROCESSED BY THE CPO AND IT WORKS CLOSELY
WITH THE AFGE AND STRATCOM MANAGEMENT IN AN ATTEMPT TO SETTLE ALL
GRIEVANCES AT THE FIRST AND SECOND STEPS OF THE GRIEVANCE PROCEDURE.
THE RECORD REVEALS THAT THE THIRD STEP OF THE GRIEVANCE PROCEDURE
REQUIRES THAT THE MATTER BE HANDLED BY INDIVIDUAL COMPONENT COMMANDERS,
ALL OF WHOM ARE LOCATED AT FORT HUACHUCA, EXCEPT THE CSLA COMMANDER.
/4/
THE EVIDENCE ESTABLISHES THAT THE CHIEF FUNCTION AND MISSION OF
CSLA-- THAT OF PROVIDING COMMUNICATIONS SECURITY EQUIPMENT TO THE ARMY--
DID NOT CHANGE AS A RESULT OF THE REORGANIZATION, ALTHOUGH CSLA DID LOSE
TWO MINOR FUNCTIONS PREVIOUSLY PERFORMED BY CEEIA WHICH WERE GIVEN TO
OTHER COMPONENTS ESTABLISHED TO HANDLE THEM. FURTHER, THE
REORGANIZATION WAS ACCOMPLISHED WITH NO CHANGE IN THE TYPE OF
APPOINTMENT, POSITION TITLE, SERIES, GRADE OR SALARY OF THE EMPLOYEES
INVOLVED AND CSLA EMPLOYEES CONTINUE TO BE HOUSED AT THE SAME LOCATION
AS BEFORE THE REORGANIZATION ALONG WITH EMPLOYEES OF SEVERAL OTHER
COMPONENTS. THE RECORD REVEALS THAT THE TYPE OF WORK PERFORMED BY CSLA
REQUIRES THAT ITS EMPLOYEES WORK CLOSELY WITH THE EMPLOYEES WITHIN THE
VARIOUS STRATCOM COMPONENTS. IN THIS REGARD, CSLA EMPLOYEES GIVE ADVICE
AND ASSISTANCE CONCERNING THE INSTALLATION OF SECURITY EQUIPMENT ON THE
COMMUNICATIONS EQUIPMENT HANDLED BY STRATCOM. ALSO, THEY ARE
RESPONSIBLE FOR SERVICING THE SECURITY EQUIPMENT WHICH NECESSITATES
THEIR CLOSE COOPERATION WITH EMPLOYEES OF OTHER STRATCOM COMPONENTS.
THE EVIDENCE ESTABLISHES THAT THE EMPLOYEES OF CSLA CONTINUE TO PERFORM
THE SAME JOBS AND ARE UTILIZING THE SAME EQUIPMENT AS BEFORE THE
REORGANIZATION. MOREOVER, INASMUCH AS MANY OF THE SAME JOB
CLASSIFICATIONS, SUCH AS COMPUTER ANALYST AND INVENTORY SPECIALIST, ARE
FOUND WITHIN THE NUMEROUS COMPONENTS AT THE FORT, THERE IS A SUBSTANTIAL
AMOUNT OF INTERCHANGE AND TRANSFER BETWEEN EMPLOYEES OF THE VARIOUS
COMPONENTS AT THE BASE, INCLUDING EMPLOYEES OF CSLA.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES OF THE CSLA
CONTINUE, AFTER THE REORGANIZATION, TO SHARE A COMMUNITY OF INTEREST
WITH THE OTHER EMPLOYEES OF THE EXISTING EXCLUSIVELY RECOGNIZED UNIT AT
FORT HUACHUCA. THUS, THE EVIDENCE DEMONSTRATES THAT THE EMPLOYEES OF
CSLA HAVE REMAINED AT THE SAME PHYSICAL LOCATION, PERFORMING THE SAME
WORK, UNDER THE SAME IMMEDIATE SUPERVISION AND WORKING CONDITIONS, AND
CONTINUE TO HAVE THE SAME DAY-TO-DAY CONTACT WITH OTHER UNIT EMPLOYEES,
AS EXISTED PRIOR TO THE REORGANIZATION. IN ADDITION, CSLA CONTINUES TO
RECEIVE THE SAME ADMINISTRATIVE SERVICES FROM STRATCOM, INCLUDING THE
SERVICES OF THE FORT HUACHUCA CPO WHICH CONTINUES TO PROVIDE ASSISTANCE
ON PERSONNEL, LABOR RELATIONS AND GRIEVANCE MATTERS. ALTHOUGH CSLA HAS
BEEN TRANSFERRED ADMINISTRATIVELY TO ANOTHER COMMAND, WHICH IS SEPARATED
GEOGRAPHICALLY FROM STRATCOM, AND WHOSE COMMANDER PARTICIPATES AT THE
THIRD STEP OF THE GRIEVANCE PROCEDURE, I FIND THESE FACTORS ARE NOT
SUFFICIENT TO ESTABLISH THAT CSLA EMPLOYEES, AS A RESULT OF THE
REORGANIZATION, ENJOY A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
THE OTHER EMPLOYEES IN THE EXISTING UNIT AND THAT THEIR CONTINUED
INCLUSION IN THE EXISTING UNIT WOULD FAIL TO PROMOTE EFFECTIVE DEALINGS
AND EFFICIENCY OF AGENCY OPERATIONS. /5/ ACCORDINGLY, I SHALL ORDER
THAT THE INSTANT PETITION BE DISMISSED. /6/
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 72-3823(CU) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 5, 1974
/1/ IN VIEW OF THE DISPOSITION HEREIN, I FIND IT UNNECESSARY TO RULE
ON THE AFGE'S MOTION TO DISMISS THE SUBJECT PETITION FOR CLARIFICATION
OF UNIT.
/2/ ON AUGUST 11, 1972, A TWO-YEAR NEGOTIATED AGREEMENT WAS ENTERED
INTO BETWEEN THE PARTIES COVERING THE EMPLOYEES IN THE EXCLUSIVELY
RECOGNIZED UNIT. THE AGREEMENT COVERED ALSO A SEPARATE UNIT OF
EMPLOYEES OF THE U.S. ARMY SAFEGUARD COMMUNICATIONS AGENCY, HEREIN
CALLED SAFCA-- A TENANT COMMAND AT FORT HUACHUCA-- FOR WHICH THE AFGE
WAS THE EXCLUSIVE REPRESENTATIVE. THE NEGOTIATED AGREEMENT WAS SIGNED
BY BOTH THE COMMANDER OF STRATCOM AND THE COMMANDER OF SAFCA.
/3/ THERE IS A FORT-WIDE COMPETITIVE AREA FOR ALL JOBS GS-11 AND
BELOW; HOWEVER, ALL JOBS ABOVE GS-11 MAY BE COMPONENT-WIDE OR
COMMAND-WIDE. ALL COMPONENTS AT THE FORT HAVE THE SAME COMPETITIVE AREA
FOR FRF'S EXCEPT SAFCA AND CSLA WHICH HAVE THEIR OWN SEPARATE
COMPETITIVE AREAS.
/4/ IN THIS LATTER REGARD, THE RECORD INDICATES THAT THE ONLY
DIFFERENCE IN THIRD-STEP GRIEVANCE HANDLING BROUGHT ABOUT BY THE CHANGE
IN CSLA'S STATUS IS THAT ALL RECORDS REGARDING THE GRIEVANCE NOW ARE
SENT TO ECOM HEADQUARTERS IN NEW JERSEY FOR ACTION.
/5/ CF. DEPARTMENT OF ARMY, HEADQUARTERS, U.S. ARMY TRAINING CENTER
ENGINEER AND FORT LEONARD WOOD, FORT LEONARD WOOD, MISSOURI, A/SLMR NO.
328 AND AMC AMMUNITION CENTER, SAVANNA, ILLINOIS, A/SLMR NO. 291.
/6/ IT WAS NOTED THAT UNDER THE CIRCUMSTANCES OF THIS CASE, THE
FILING OF A PETITION FOR AMENDMENT OF CERTIFICATION MAY BE APPROPRIATE
TO REFLECT THE CHANGE IN THE DESIGNATION OF THE ACTIVITY PRECIPITATED BY
THE REORGANIZATION OF OCTOBER 1972.
4 A/SLMR 350; P. 119; CASE NO. 72-3689; FEBRUARY 5, 1974.
DEPARTMENT OF THE AIR FORCE,
4392 AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA
A/SLMR NO. 350
THIS CASE INVOLVES AN UNFAIR LABOR PRACTICE COMPLAINT FILED AGAINST
THE DEPARTMENT OF THE AIR FORCE, 4392 AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE (RESPONDENT), BY THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1001, PROFESSIONAL DIVISION (NFFE), ALLEGING
ESSENTIALLY THAT THE RESPONDENT VIOLATED SECTION 19(A)(1), (2), (5), AND
(6) OF EXECUTIVE ORDER 11491, AS AMENDED, BY ITS CONDUCT IN CONNECTION
WITH TWO MEETINGS. ALL THESE MEETINGS, THE RESPONDENT EXPLAINED
PERSONNEL POLICIES AND PRACTICES WHICH WOULD GOVERN A FORTHCOMING
REDUCTION-IN-FORCE (RIF), AND IT ANNOUNCED THE NUMBER OF POSITIONS WHICH
WOULD BE AFFECTED. ALTHOUGH OFFICIALS OF THE COMPLAINANT ATTENDED THE
MEETINGS, THEY WERE NOT PUBLICLY RECOGNIZED IN THAT CAPACITY.
THE ADMINISTRATIVE LAW JUDGE NOTED THAT THE GRAVAMEN OF THE COMPLAINT
WAS THAT THE RESPONDENT HAD REFUSED TO CONSULT AND CONFER CONCERNING THE
MANNER IN WHICH THE RIF WOULD BE EFFECTUATED, THAT IT DID NOT RECOGNIZE
OFFICIALS OF THE COMPLAINANT AT THE MEETINGS, AND THAT IT DID NOT
MENTION THE AVAILABILITY OF THE COMPLAINANT FOR ASSISTANCE TO THE
EMPLOYEES IN DEROGATION OF THE COMPLAINANT'S REPRESENTATIVE STATUS.
IT WAS STIPULATED BY THE PARTIES THAT THE ONLY IMPROPER CONDUCT
COMPLAINED OF OCCURRED AT THE TWO MEETINGS INVOLVED. IN THIS REGARD,
HOWEVER, THE ADMINISTRATIVE LAW JUDGE WAS OF THE VIEW THAT IT WAS
NECESSARY TO CONSIDER THE EVENTS WHICH PRECEDED THE MEETINGS IN ORDER TO
MAKE A DETERMINATION. HE FOUND, AMONG OTHER THINGS, THAT THE PROPOSED
PROCEDURES FOR IMPLEMENTING THE RIF HAD BEEN THE SUBJECT OF PRIOR
DISCUSSIONS WITH THE COMPLAINANT AND THAT, AT THE TIME OF THE TWO
MEETINGS, THE RESPONDENT HAD NOT FORMULATED ITS FINAL PLANS FOR CARRYING
OUT THE RIF, AND THE PRECISE POSITIONS TO BE AFFECTED HAD NOT BEEN
COMPLETELY IDENTIFIED. THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
RESPONDENT'S DEALINGS WITH THE COMPLAINANT PRIOR TO THE MEETINGS BELIED
ANY CONTENTION THAT THE FAILURE OF THE RESPONDENT TO ACKNOWLEDGE
PUBLICLY THE REPRESENTATIVES OF THE COMPLAINANT AT THE MEETINGS
CONSTITUTED A FAILURE TO ACCORD APPROPRIATE RECOGNITION TO THE
COMPLAINANT. IN THIS RESPECT, THE ADMINISTRATIVE LAW JUDGE NOTED THAT
THERE WAS NO REQUEST BY THE COMPLAINANT'S REPRESENTATIVES FOR ANY TYPE
OF CONSULTATION DURING THE TWO MEETINGS.
BASED ON THE ABOVE CIRCUMSTANCES, THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE RESPONDENT HAD NOT VIOLATED SECTION 19(A)(5) AND (6)
OF THE ORDER NOR HAD IT ENGAGED IN CONDUCT WHICH TENDED TO DISCOURAGE
MEMBERSHIP IN THE COMPLAINANT IN VIOLATION OF SECTION 19(A)(2).
FURTHER, HE CONCLUDED THAT THE RESPONDENT HAD NOT ENGAGED IN CONDUCT
WHICH INTERFERED WITH, RESTRAINED, OR COERCED ANY EMPLOYEE IN THE
EXERCISE OF RIGHTS ASSURED BY THE ORDER IN VIOLATION OF SECTION
19(A)(1). 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 THE MATTER, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE ASSISTANT SECRETARY
ADOPTED THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS AND ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS
ENTIRETY.
DEPARTMENT OF THE AIR FORCE,
4392 AEROSPACE SUPPORT GROUP,
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1001,
PROFESSIONAL DIVISION, VANDENBERG
AIR FORCE BASE, CALIFORNIA
ON OCTOBER 16, 1973, ADMINISTRATIVE LAW JUDGE GORDON J. MYATT 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, /1/ I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-3689 BE, AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
FEBRUARY 5, 1974
/1/ ALTHOUGH THE COMPLAINANT REQUESTED AND WAS GRANTED AN EXTENSION
OF TIME IN WHICH TO FILE EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S
REPORT AND RECOMMENDATIONS, IT FAILED TO DO SO.
DEPARTMENT OF THE AIR FORCE
4392 AEROSPACE SUPPORT GROUP
VANDENBERG AIR FORCE BASE, CALIFORNIA
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1001, PROFESSIONAL DIVISION
VANDENBERG AIR FORCE BASE, CALIFORNIA
APPEARANCES:
MR. HOMER R. HOISINGTON, REGIONAL BUSINESS AGENT
RIALTO, CALIFORNIA.
AND
MS. MARIE BROGAN, PRESIDENT OF LOCAL 1001,
LOMPOC, CALIFORNIA
NOLAN D. SKLUTE, CAPT., UNITED STATES AIR FORCE
OFFICE OF THE JUDGE ADVOCATE GENERAL
WASHINGTON, D.C.
AND
FRANK SPRAGUE, OFFICE OF THE STAFF JUDGE ADVOCATE
VANDENBERG AIR FORCE BASE, CALIFORNIA
GORDON J. MYATT, ADMINISTRATIVE LAW JUDGE: PURSUANT TO A COMPLAINT
AND AN AMENDED COMPLAINT FILED ON JUNE 5, 1972, /1/ UNDER EXECUTIVE
ORDER 11491, AS AMENDED, BY NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1001, PROFESSIONAL DIVISION (HEREINAFTER CALLED THE UNION OR
COMPLAINANT), AGAINST DEPARTMENT OF THE AIR FORCE, 4392 AEROSPACE
SUPPORT GROUP, VANDENBERG AIR FORCE BASE (HEREINAFTER CALLED THE
RESPONDENT ACTIVITY) A NOTICE OF HEARING ON COMPLAINT WAS ISSUED BY THE
REGIONAL ADMINISTRATOR FOR THE SAN FRANCISCO REGION ON FEBRUARY 26,
1973. THE COMPLAINANT ALLEGED, AMONG OTHER THINGS, THAT THE RESPONDENT
ACTIVITY ENGAGED IN VIOLATIONS OF SECTIONS 19(A)(1), (2), (5) AND (6) OF
THE EXECUTIVE ORDER.
A HEARING WAS HELD IN THIS MATTER ON MAY 1, 1973 IN SANTA MARIA,
CALIFORNIA. ALL PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
TO BE HEARD AND TO INTRODUCE RELEVANT EVIDENCE ON THE ISSUES INVOLVED.
BRIEFS WERE FILED BY THE PARTIES AND THEY WERE DULY CONSIDERED BY ME IN
ARRIVING AT MY DETERMINATION IN THIS MATTER.
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 COMPLAINANT, LOCAL 1001 OF THE NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, BECAME THE EXCLUSIVE REPRESENTATIVE OF THE PROFESSIONAL
EMPLOYEES AT VANDENBERG AIR FORCE BASE FOLLOWING AN ELECTION HELD ON
DECEMBER 9, 1971. THE UNIT FOR WHICH THE UNION HELD EXCLUSIVE
RECOGNITION WAS "ALL PROFESSIONAL EMPLOYEES OF VANDENBERG AIR FORCE
BASE, CALIFORNIA, THE DEPARTMENT OF THE AIR FORCE, SERVICED BY THE AIR
FORCE BASE CIVILIAN PERSONNEL OFFICE; EXCLUDING NON-PROFESSIONAL
EMPLOYEES, MANAGERS, SUPERVISORS, GUARDS, AND PERSONS PERFORMING FEDERAL
PERSONNEL WORK AND OTHER THAN A PURELY CLERICAL CAPACITY." /2/
SOMETIME IN EARLY JANUARY, 1972, IT BECAME KNOWN THAT A
REDUCTION-IN-FORCE (RIF) WAS CONTEMPLATED AMONG THE CIVILIAN PERSONNEL
AT THE AIR FORCE BASE. THIS ANTICIPATED REDUCTION-IN-FORCE RESULTED IN
A NUMBER OF MEETINGS BETWEEN REPRESENTATIVES OF THE UNION AND MANAGEMENT
OFFICIALS OVER A PERIOD OF SEVERAL MONTHS LEADING UP TO THE EVENTS WHICH
ARE THE SUBJECT OF THE COMPLAINT HEREIN.
ON JANUARY 27, A MEETING WAS ARRANGED BY GOTTFREDSON OF THE CIVILIAN
PERSONNEL OFFICE WITH UNION OFFICIALS. PUBLIC ANNOUNCEMENT OF THE
PENDING REDUCTION-IN-FORCE HAD BEEN MADE TO THE GENERAL WORK FORCE AND,
IN ADDITION, A PROPOSED REORGANIZATION OF A MAJOR COMPONENT EMPLOYING
PROFESSIONALS AT THE INSTALLATION HAD BEEN ANNOUNCED. THE MEETING WAS
CALLED BY MANAGEMENT IN ORDER TO DISCUSS THE MATTER IN WHICH THE
PROPOSED REDUCTION WOULD BE CONDUCTED.
O'NEILL /3/ AND THREE OTHER MEMBERS OF THE PROFESSIONAL UNIT ATTENDED
ON BEHALF OF THE UNION. THE PARTIES GENERALLY DISCUSSED THE MANNER IN
WHICH THE REDUCTION-IN-FORCE WAS TO BE CONDUCTED. THEY ALSO ATTEMPTED
TO DEFINE THE TERMS "COMPETITIVE AREA", "COMPETITIVE LEVELS", AND WHAT
THE "BUMPING RIGHTS" OF EMPLOYEES WOULD BE IN THE RIF SITUATION. THE
UNION REPRESENTATIVES WERE GIVEN COPIES OF AIR FORCE REGULATIONS WHICH
SET OUT THE PROCEDURES TO BE FOLLOWED IN CONDUCTING A RIF. THE UNION
ALSO HAD COPIES OF THE FEDERAL PERSONNEL MANUAL WHICH DEALT WITH THE
PROCEDURES TO BE FOLLOWED IN RIF SITUATIONS.
THERE IS EVIDENCE OF SUBSEQUENT MEETINGS BETWEEN THE BASE OFFICIALS
AND THE UNION REGARDING THE PENDING REDUCTION IN THE WORK FORCE AT THE
SPACE AND MISSILE TEST CENTER (SAMTEC). COLONEL KEEFER, EXECUTIVE
OFFICER AND CHIEF OF STAFF TO GENERAL LOWE, THE SAMTEC COMMANDER, MET
WITH O'NEILL AND BROGAN ON FEBRUARY 17. THE UNION REPRESENTATIVES ASKED
FOR THE SPECIFIC NUMBER OF POSITIONS TO BE AFFECTED BY THE PROPOSED
REDUCTION AND WERE TOLD THAT THE ACTIVITY DID NOT HAVE THAT KIND OF
INFORMATION AT THE PRESENT TIME. KEEFER REITERATED THE DESIRE OF
GENERAL LOWE TO GET AS MUCH INFORMATION REGARDING THE RIF TO THE
EMPLOYEES AS QUICKLY AS IT BECAME AVAILABLE. /4/ KEEFER ALSO TOLD THE
UNION REPRESENTATIVES THAT BECAUSE OF THE GENERAL'S INTENT TO INFORM THE
EMPLOYEES ABOUT THE NUMBERS AFFECTED AS QUICKLY AS POSSIBLE, THERE MIGHT
BE A "SHORT LEAD TIME" BETWEEN PROVIDING THE INFORMATION TO THE UNION
AND INFORMING THE GENERAL WORK FORCE. HE INDICATED THAT IT MIGHT OCCUR
THE DAY BEFORE OR THE ACTUAL MORNING OF THE RELEASE OF THE INFORMATION
GENERALLY.
THERE IS INDICATION THAT THERE WERE SUBSEQUENT MEETINGS BETWEEN
REPRESENTATIVES OF THE RESPONDENT ACTIVITY AND THE UNION OFFICIALS
REGARDING THIS SAME MATTER. THE RECORD DOES NOT, HOWEVER, INDICATE THE
EXACT DATE OF THESE MEETINGS, BUT IT DOES REFLECT THAT THE OFFICIALS OF
THE ACTIVITY STILL DID NOT HAVE THE KNOWLEDGE OF THE SPECIFIC NUMBER OF
POSITIONS THAT WOULD BE AFFECTED BY THE RIF. THIS INFORMATION WAS
CLASSIFIED BY THE AIR FORCE HEADQUARTERS IN WASHINGTON, D.C., AND HAD
NOT BEEN CLEARED FOR RELEASE.
ON MARCH 23, THE DEPARTMENT OF DEFENSE ANNOUNCED TO CONGRESS THE
PROPOSED NUMBER OF POSITIONS THAT WOULD BE AFFECTED BY THE REDUCTION IN
PERSONNEL AT SAMTEC. THE NUMBER GIVEN WAS 92. NATHAN WOLKIMER,
NATIONAL PRESIDENT OF THE UNION, WIRED BROGAN RELAYING THE INFORMATION
TO HER. THE INFORMATION WAS ALSO PICKED UP BY THE LOCAL PRESS MEDIA AND
ANNOUNCED IN THE LOMPOC AREA WHERE THE AIR FORCE BASE WAS LOCATED. AT
THE TIME THAT DOD MADE ITS ANNOUNCEMENT TO CONGRESS, AIR FORCE
HEADQUARTERS ISSUED ORDERS TO THE COMMANDER OF SAMTEC AUTHORIZING HIM TO
DECLASSIFY THE INFORMATION REGARDING THE RIF AT 6:00 A.M. ON MARCH 24.
ON MARCH 24, SHORTLY AFTER SHE ARRIVED AT WORK, BROGAN RECEIVED A
CALL FROM KEEFER AT APPROXIMATELY 9:00 A.M. ASKING HER TO ATTEND A
MEETING FOR UNION OFFICIALS REGARDING THE RIF. THIS MEETING WAS TO TAKE
PLACE BEFORE A MEETING BETWEEN THE BASE OFFICIALS AND THE GENERAL WORK
FORCE AT 10:00 A.M. /5/ BROGAN TOLD KEEFER SHE DIDN'T SEE MUCH SENSE IN
ATTENDING A MEETING PRIOR TO THE GENERAL MEETING AT 10:00 A.M. BECAUSE
IT WOULD TAKE HER 15 MINUTES TO GET TO HIS OFFICE AND THERE WOULD NOT BE
SUFFICIENT TIME TO GO INTO DETAILS ABOUT THE SUBJECT MATTER. SHE ALSO
INDICATED SHE HAD PRIOR KNOWLEDGE ABOUT THE NUMBER OF POSITIONS AFFECTED
BECAUSE OF THE WOLKIMER WIRE AND ANNOUNCEMENTS IN THE LOCAL MEDIA.
KEEFER ALSO CONTACTED GRANTSKI REQUESTING THAT HE ATTEND THE EARLIER
MEETING. GRANTSKI LIKEWISE REFUSED BECAUSE OF THE LACK OF TIME TO GET
TO THE BUILDING WHERE KEEFER WAS LOCATED AND RETURN FOR THE 10:00 A.M.
MEETING. AS A CONSEQUENCE, THERE WAS NEVER A MEETING BETWEEN THE UNION
REPRESENTATIVES AND THE OFFICIALS OF THE RESPONDENT ACTIVITY AFTER THE
DECLASSIFICATION OF THE RIF INFORMATION AND PRIOR TO THE GENERAL
MEETINGS ON MARCH 24.
THE PRESENTATION WAS GIVEN AT THE 10:00 A.M. MEETING BY GENERAL LOWE,
THE SAMTEC COMMANDER, AND ALLAN COLEMAN, THE CIVILIAN PERSONNEL OFFICER.
/6/ BROGAN, O'NEILL, AND GRANTSKI ATTENDED THE MEETING ALONG WITH THE
REST OF THE EMPLOYEES. THEY WERE NOT INTRODUCED BY THE OFFICIALS OF THE
ACTIVITY AS REPRESENTATIVES OF THE UNION NOR WAS THERE ANY
ACKNOWLEDGEMENT OF THEIR PRESENCE AT THE MEETING. GENERAL LOWE INFORMED
THE EMPLOYEES OF THE NUMBER OF POSITIONS AND THE DIVISIONS AND
DIRECTORATES WHICH WOULD BE AFFECTED BY THE REDUCTION-IN-FORCE. /7/
COLEMAN EXPLAINED THE RIF PROCEDURES RESPONDENT ACTIVITY INTENDED TO
FOLLOW. THERE WERE DISCUSSIONS ABOUT THE RIGHTS OF VARIOUS
CLASSIFICATIONS OF EMPLOYEES AND HOW THE RIF WOULD BE IMPLEMENTED. NONE
OF THE UNION OFFICIALS ASKED ANY QUESTIONS IN THEIR REPRESENTATIVE
CAPACITY, ALTHOUGH EMPLOYEES IN GENERAL ASKED A NUMBER OF QUESTIONS. AT
THE CONCLUSION OF THE MEETING, COLEMAN TOLD THE EMPLOYEES THAT IF THEY
HAD ANY QUESTIONS REGARDING THE PROPOSED REDUCTION THAT THEY SHOULD SEEK
ANSWERS FROM THE CIVILIAN PERSONNEL OFFICE. THERE WAS NEVER ANY MENTION
OF THE UNION DURING THE ENTIRE MEETING.
THE MEETING AT 11:00 A.M. FOLLOWED THE SAME FORMAT AS THE PRIOR
MEETING. AS IN THE CASE OF THE 10:00 A.M. MEETING, THE UNION OFFICIALS
WERE NEVER PUBLICLY ACKNOWLEDGED NOR WERE THE EMPLOYEES INSTRUCTED TO GO
TO THE UNION REPRESENTATIVES REGARDING ANY QUESTIONS THEY HAD CONCERNING
THE PROPOSED RIF.
THERE IS NO SERIOUS FACTUAL DISPUTE INVOLVED IN THIS CASE. IT IS
EVIDENT FROM THE TESTIMONY OF ALL THE WITNESSES THAT IN JANUARY 1972, A
PROPOSED REDUCTION-IN-FORCE WAS CONTEMPLATED AT THE RESPONDENT ACTIVITY.
IT IS ALSO EVIDENT THAT THE COMMANDER OF SAMTEC INTENDED TO INFORM THE
EMPLOYEES ABOUT THE POSITIONS INVOLVED AND THE MANNER IN WHICH THE RIF
WOULD BE IMPLEMENTED AS QUICKLY AS HE WAS AUTHORIZED TO DO SO BY HIGHER
OFFICIALS IN ORDER TO ALLAY ANY FEARS OF THE EMPLOYEES. THERE IS
EVIDENCE OF AT AT LEAST TWO MEETINGS (AND POSSIBLY MORE) REGARDING THE
PENDING REDUCTION BETWEEN THE UNION REPRESENTATIVES AND THE MANAGEMENT
OFFICIALS PRIOR TO THE TIME THAT THE INFORMATION BECAME AVAILABLE
REGARDING THE SPECIFIC POSITIONS TO BE AFFECTED. IT IS MOST UNFORTUNATE
THAT THE DEPARTMENT OF DEFENSE RELEASED THE NUMBER OF POSITIONS THOUGHT
TO BE AFFECTED TO THE CONGRESS AND HENCE TO THE GENERAL PUBLIC ON MARCH
23, WHILE AIR FORCE HEADQUARTERS ISSUED INSTRUCTIONS TO THE RESPONDENT
ACTIVITY TO DECLASSIFY THE SAME INFORMATION AT 6:00 A.M. THE FOLLOWING
DAY. IT IS HIGHLY IMPROBABLY THAT THE CASE WOULD HAVE PROCEEDED TO THIS
STAGE HAD NOT THIS "CATCH-22" TYPE OF SITUATION DEVELOPED.
THE GRAVAMEN OF THE COMPLAINT, HOWEVER, IS THAT THE RESPONDENT
ACTIVITY REFUSED TO CONSULT AND CONFER WITH THE UNION CONCERNING THE
MANNER IN WHICH THE RIF WOULD BE EFFECTUATED PRIOR TO THE MEETINGS OF
MARCH 24, AND DID NOT RECOGNIZE THE UNION OFFICIALS AT THE MEETINGS ON
THAT DATE. NOR DID MANAGEMENT OFFICIALS MENTION THE AVAILABILITY OF THE
UNION FOR ASSISTANCE TO THE EMPLOYEES IN DEROGATION OF THE UNION'S
REPRESENTATIVE STATUS. PRESUMABLY, BY THIS CONDUCT MANAGEMENT FAILED TO
ACCORD "APPROPRIATE RECOGNITION" TO THE UNION REQUIRED BY THE EXECUTIVE
ORDER AND THEREBY DISCOURAGED MEMBERSHIP IN THE UNION. THIS CONDUCT IS
ALLEGED TO HAVE INTERFERED WITH THE RIGHTS OF EMPLOYEES ASSURED BY THE
ORDER.
IN MY JUDGMENT THIS CASE DOES NOT GIVE RISE TO THE BROAD-GAUGED
ISSUES ASSERTED BY THE COMPLAINANT. BUT MORE IMPORTANTLY, I FIND THAT
THE FACTS HERE SIMPLY DO NOT SUPPORT THE ALLEGATIONS OF THE COMPLAINANT.
IT WAS STIPULATED AT THE HEARING BY THE PARTIES THAT THE ONLY CONDUCT
COMPLAINED OF OCCURRED AT THE TWO MEETINGS ON MARCH 24. BUT IT IS
NECESSARY TO CONSIDER THE EVENTS THAT PRECEDED THE MEETINGS IN ORDER TO
MAKE A DETERMINATION IN THIS CASE.
AS NOTED ABOVE, THE OFFICIALS OF THE RESPONDENT ACTIVITY HAD SEVERAL
MEETINGS WITH THE UNION REPRESENTATIVES REGARDING THE PENDING RIF AND
PROVIDED THEM WITH ALL OF THE INFORMATION AVAILABLE AT THAT TIME. THE
UNION REPRESENTATIVES WERE GIVEN COPIES OF THE AIR FORCE REGULATIONS
DEALING WITH RIF SITUATIONS AND THEY ALSO HAD COPIES OF THE FEDERAL
PERSONNEL MANUAL DEALING WITH THE SAME SUBJECT. IN ADDITION, BROGAN
TESTIFIED THAT SHE MADE VISITS TO THE PERSONNEL OFFICE REGARDING
INFORMATION ON POSITIONS AND RETENTION REGISTERS AND THE LIKE. ALTHOUGH
BROGAN IMPLIED THAT SHE WAS UNABLE TO GET CERTAIN INFORMATION AT THE
EXACT TIMES SHE WANTED TO, IT IS CLEAR THAT SHE HAD ACCESS TO ALL OF THE
INFORMATION SHE REQUESTED AS THE UNION REPRESENTATIVE. THE KEY TO THE
DISCUSSIONS OF COURSE CONCERNED THE NUMBER OF POSITIONS TO BE AFFECTED
BY THE PROPOSED RIF. WHILE THIS INFORMATION WAS NOT AVAILABLE PRIOR TO
MARCH 24, IT IS CLEAR THAT THE OFFICIALS OF THE RESPONDENT ACTIVITY
ASSURED THE UNION REPRESENTATIVES THE INFORMATION WOULD BE MADE KNOWN TO
THEM AS SOON AS IT WAS DECLASSIFIED. THUS IT IS APPARENT THAT
MANAGEMENT WILLINGLY ENGAGED IN CONSULTATION WITH THE COMPLAINANT ON THE
BASIS OF INFORMATION AVAILABLE AT THAT TIME REGARDING THE PENDING
REDUCTION.
THE LACK OF COORDINATION BETWEEN THE PUBLIC ANNOUNCEMENT BY DOD ON
MARCH 23, AND THE DECLASSIFICATION OF WHAT WAS ALREADY COMMON KNOWLEDGE
ON MARCH 24, DOES NOT CONVERT THE CIRCUMSTANCES INTO A VIOLATION OF THE
EXECUTIVE ORDER. THERE WAS SIMPLY NO TIME FOR MANAGEMENT TO CONSULT
WITH THE UNION PRIOR TO THE GENERAL MEETING WITH THE EMPLOYEES ON MARCH
24. THE EFFORTS OF KEEFER TO ARRANGE A MEETING WITH THE UNION
REPRESENTATIVES SHORTLY AFTER 9:00 A.M. ON THAT DATE DEMONSTRATES THAT
IT WAS NOT FEASIBLE OR POSSIBLE TO HAVE A MEANINGFUL MEETING PRIOR TO
THE SCHEDULED GENERAL MEETINGS.
THE UNION COMPLAINS OF THE MANNER IN WHICH THE GENERAL MEETINGS WERE
CONDUCTED AND THE FAILURE OF THE RESPONDENT'S OFFICIALS TO INTRODUCE THE
UNION REPRESENTATIVES. THESE COMPLAINTS, HOWEVER, DO NOT WARRANT A
FINDING OF A VIOLATION OF ANY SECTION OF THE EXECUTIVE ORDER. THAT
MANAGEMENT DID NOT PUBLICLY ACKNOWLEDGE THE PRESENCE OF THE UNION
REPRESENTATIVES IN NO WAY CONSTITUTES A FAILURE TO ACCORD APPROPRIATE
RECOGNITION TO THE UNION IN ITS REPRESENTATIVE CAPACITY. INDEED, ALL OF
MANAGEMENT'S PRIOR DEALINGS WITH THE COMPLAINANT REGARDING THE PROPOSED
RIF BELIE THIS CONTENTION. NOR WAS THERE A REFUSAL ON THE PART OF
MANAGEMENT TO CONSULT, CONFER, OR NEGOTIATE CONCERNING THE SUBJECT
MATTER OF THE MEETINGS. THE RESPONDENT'S OFFICIALS WERE MERELY
EXPLAINING TO THE EMPLOYEES THE POSITIONS TO BE AFFECTED BY THE PENDING
RIF AND STATING THE PROCEDURES WHICH THE RESPONDENT PROPOSED TO FOLLOW
IN IMPLEMENTING THE REDUCTION. THE PROCEDURES HAD BEEN THE SUBJECT OF
PRIOR DISCUSSIONS WITH THE UNION REPRESENTATIVES AND IT WAS ONLY A
MATTER OF IDENTIFYING SPECIFIC POSITIONS WHICH WERE TO BE AFFECTED. AS
NOTED ABOVE, THERE WAS NO TIME TO INFORM THE UNION IN A MEANINGFUL WAY
OF THE SPECIFIC NUMBERS PRIOR TO THE DECLASSIFICATION OF THAT
INFORMATION EARLIER THAT DAY. MOREOVER, THE INFORMATION REGARDING THE
POSITIONS TO BE AFFECTED CONSISTED MERELY OF RAW DATA AND WAS NOT
REFINED OR FINALIZED UNTIL SOMETIME THE FOLLOWING MONTH. HENCE, AT THE
TIME OF THE MEETINGS ON MARCH 24, MANAGEMENT HAD NOT FORMULATED THE
FINAL PLANS FOR CARRYING OUT THE REDUCTION AND THE PRECISE POSITIONS TO
BE AFFECTED HAD NOT BEEN COMPLETELY IDENTIFIED. /8/
IT SHOULD ALSO BE NOTED AT THIS POINT THAT THERE WAS NEVER A REQUEST
ON THE PART OF THE UNION REPRESENTATIVES FOR ANY TYPE OF CONSULTATION
DURING THE COURSE OF THE TWO MEETINGS. SINCE THE COMPLAINT IS LIMITED
TO THE CONDUCT OF THE TWO MEETINGS ON MARCH 24, IT IS PATENTLY CLEAR
THAT NO VIOLATION OF THE EXECUTIVE ORDER WAS COMMITTED BY THE RESPONDENT
ACTIVITY. IT FOLLOWS FROM THE ABOVE THAT THE RESPONDENT DID NOT VIOLATE
SECTION 19(A)(5) AND (6) OF THE EXECUTIVE ORDER AND THEREFORE DID NOT
ENGAGE IN CONDUCT WHICH TENDED TO DISCOURAGE MEMBERSHIP IN THE UNION IN
VIOLATION OF SECTION 19(A)(2). IN ADDITION, THE RESPONDENT DID NOT
ENGAGE IN ANY TYPE OF CONDUCT WHICH INTERFERED WITH, RESTRAINED OR
COERCED ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE EXECUTIVE
ORDER IN SECTION 19(A)(1).
ACCORDINGLY, ON THE BASIS OF THE FOREGOING, I FIND THAT THE
RESPONDENT ACTIVITY DID NOT ENGAGE IN ANY CONDUCT WHICH VIOLATED THE
EXECUTIVE ORDER. I SHALL, THEREFORE, RECOMMEND THAT THE COMPLAINT IN
THIS CASE BE DISMISSED IN ITS ENTIRETY.
ON THE BASIS OF THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW
I FIND THAT THE RESPONDENT ACTIVITY, UNITED STATES DEPARTMENT OF AIR
FORCE, 4392 AEROSPACE SUPPORT GROUP, VANDENBERG AIR FORCE BASE,
CALIFORNIA, DID NOT ENGAGE IN ANY CONDUCT IN VIOLATION OF SECTIONS
19(A)(1), (2), (5) AND (6) OF THE EXECUTIVE ORDER AND I RECOMMEND THAT
THE COMPLAINT HEREIN BE DISMISSED IN ITS ENTIRETY.
OCTOBER 16, 1973
/1/ UNLESS OTHERWISE INDICATED, ALL DATES HEREIN REFER TO THE YEAR
1972.
/2/ THE UNION ALSO REPRESENTED THE NON-PROFESSIONAL EMPLOYEES ON THE
BASE. A VICE-PRESIDENT OF THE UNION, FRANK O'NEILL, HAD THE SPECIFIC
RESPONSIBILITY FOR REPRESENTING THE PROFESSIONAL BARGAINING UNIT.
ANOTHER VICE-PRESIDENT, LEROY GRANTSKI, WAS IN CHARGE OF THE
NON-PROFESSIONAL UNIT, AND MS. MARIE BROGAN WAS THE PRESIDENT OF THE
LOCAL.
/3/ AT THE TIME OF THE HEARING O'NEILL WAS ON A TOUR OF DUTY IN
CANTON ISLAND IN THE SOUTH PACIFIC. WHEN THE CIVILIAN PERSONNEL OFFICE
LEARNED OF HIS ASSIGNMENT, THEY IMMEDIATELY GOT IN TOUCH WITH HIM AND
OFFERED TO ARRANGE TO HAVE HIM FLOWN IN FOR THE HEARING. HE DEEMED THIS
UNNECESSARY AS THE UNION'S INTEREST WOULD BE ADEQUATELY REPRESENTED BY
BROGAN. ACCORDINGLY, I DO NOT DRAW ANY ADVERSE INFERENCES FROM THE
ABSENCE OF THIS WITNESS; EITHER AGAINST THE COMPLAINANT OR THE
RESPONDENT ACTIVITY.
/4/ CONSISTENT WITH HIS INTENTIONS TO INFORM THE EMPLOYEES AS QUICKLY
AS POSSIBLE ABOUT THE RIF, THE BASE COMMANDER CIRCULATED A LETTER TO THE
EMPLOYEES PRIOR TO THE MEETING ON FEBRUARY 17, STATING THAT IT WOULD BE
HIS POLICY TO RELEASE THE INFORMATION TO ALL EMPLOYEES AS QUICKLY AS
POSSIBLE. THE REPRESENTATIVES OF THE UNION HAD BEEN SHOWN A COPY OF THE
LETTER FOR COMMENTS PRIOR TO ITS CIRCULATION. ALTHOUGH THE GENERAL HAD
SIGNED THE LETTER AND WAS OUT OF TOWN AT THE TIME, HIS DEPUTY WAS
AUTHORIZED TO INCORPORATE ANY CHANGES THAT THE UNION SUGGESTED.
/5/ THE RESPONDENT'S OFFICIALS HAD SCHEDULED TWO MEETINGS TO BE
CONDUCTED WITH THE EMPLOYEES; ONE AT 10:00 A.M. AND THE OTHER AT 11:00
A.M. THIS WAS APPARENTLY DONE TO INSURE THAT ALL OF THE EMPLOYEES WOULD
BE ABLE TO ATTEND.
/6/ COLEMAN TESTIFIED THAT THE GENERAL'S STAFF DID NOT COMPLETE THEIR
PREPARATION FOR THE MEETING UNTIL APPROXIMATELY 9:00 A.M. THAT MORNING.
HE ALSO STATED THAT HIS STAFF REMAINED UNTIL MIDNIGHT PREPARING FOR THE
GENERAL MEETINGS.
/7/ THESE WERE RAW NUMBERS WHICH HAD NOT BEEN FULLY DEVELOPED AT THE
TIME OF THE MEETING. THE RECORD INDICATES THAT THE ACTUAL NUMBER OF
POSITIONS AFFECTED WAS NOT FINALIZED UNTIL SOMETIME THE FOLLOWING MONTH.
/8/ CF. UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, A/SLMR NO. 289.
4 A/SLMR 349; P. 114; CASE NO. 37-1193(RO); FEBRUARY 5, 1974.
ANTILLES CONSOLIDATED SCHOOLS,
ROOSEVELT ROADS,
CEIBA, PUERTO RICO
A/SLMR NO. 349
THE SUBJECT CASE INVOLVED OBJECTIONS TO AN ELECTION FILED BY THE
PETITIONER, DIVISION INDUSTRIAL, TECHNICAL Y PROFESSIONAL DE LA NATIONAL
MARITIME UNION, AFL-CIO, ALLEGING THAT STATEMENTS MADE TO ELIGIBLE
VOTERS BY A SUPERVISOR OF THE ACTIVITY CONSTITUTED OBJECTIONABLE CONDUCT
WHICH WARRANTED SETTING ASIDE THE ELECTION AND CONDUCTING A SECOND
ELECTION.
THE ASSISTANT SECRETARY FOUND, IN AGREEMENT WITH THE ADMINISTRATIVE
LAW JUDGE, THAT THE ELECTION SHOULD BE SET ASIDE. THUS, THE ASSISTANT
SECRETARY CONCLUDED, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE,
THAT CERTAIN PRE-ELECTION CONDUCT OF A SUPERVISOR OF NON-UNIT EMPLOYEES
WITH RESPECT TO A UNIT EMPLOYEE IMPROPERLY AFFECTED THE RESULTS OF THE
ELECTION. MOREOVER, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE
ASSISTANT SECRETARY CONCLUDED THAT STATEMENTS MADE BY THE SAME
SUPERVISOR TO ANOTHER UNIT EMPLOYEE ON THE DAY PRIOR TO THE ELECTION, -
THAT THE UNION WAS UNNECESSARY, WAS FOR LAZY PEOPLE, AND IMPLYING THAT
THE EMPLOYEE SHOULD NOT VOTE FOR IT, - IN THE CONTEXT OF POSTING THE
NOTICE OF ELECTION, ALSO CONSTITUTED OBJECTIONABLE CONDUCT WHICH
WARRANTED SETTING THE ELECTION ASIDE. IN THIS REGARD, THE ASSISTANT
SECRETARY NOTED THAT IT IS CLEARLY ESTABLISHED POLICY, AS REFLECTED IN
THE PREAMBLE AND SECTION 1(A) OF THE ORDER, THAT AGENCY OF ACTIVITY
MANAGEMENT MUST MAINTAIN A POSTURE OF NEUTRALITY IN ANY REPRESENTATION
ELECTION CAMPAIGN.
ACCORDINGLY, THE ASSISTANT SECRETARY ORDERED THAT THE ELECTION HEREIN
BE SET ASIDE AND HE DIRECTED THAT A SECOND ELECTION BE CONDUCTED.
ANTILLES CONSOLIDATED SCHOOLS,
ROOSEVELT ROADS,
CEIBA, PUERTO RICO
AND
DIVISION INDUSTRIAL,
TECHNICAL Y PROFESSIONAL
DE LA NATIONAL MARITIME UNION, AFL-CIO
ON NOVEMBER 27, 1973, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING,
CONCLUDING THAT THE ELECTION IN THE SUBJECT CASE BE SET ASIDE AND A NEW
ELECTION ORDERED.
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 TO THE REPORT AND
RECOMMENDATION, I HEREBY ADOPT THE FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS OF THE ADMINISTRATIVE LAW JUDGE, TO THE EXTENT
CONSISTENT HEREWITH.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
PRE-ELECTION CONDUCT OF WILLIAM GARCIA, A SUPERVISOR OF NON-UNIT
EMPLOYEES, WITH RESPECT TO A UNIT EMPLOYEE, ANDRES SERRANO MEDINA,
IMPROPERLY AFFECTED THE RESULTS OF THE ELECTION HELD ON MARCH 28, 1973,
AND WARRANTED SETTING THE ELECTION ASIDE AND THE DIRECTION OF A SECOND
ELECTION. FURTHER, I FIND, CONTRARY TO THE ADMINISTRATIVE LAW JUDGE,
THAT THE STATEMENTS MADE BY GARCIA TO ANOTHER UNIT EMPLOYEE, ANASTASIO
VELASQUEZ SANTOS, ON THE DAY BEFORE THE ELECTION AND IN THE CONTEXT OF
GARCIA'S POSTING OF THE NOTICE OF ELECTION, WERE IMPROPER AND WARRANTED
THE SETTING ASIDE OF THE ELECTION. IN THIS REGARD, THE ADMINISTRATIVE
LAW JUDGE FOUND THAT GARCIA TOLD VELASQUEZ THAT THE UNION WAS
UNNECESSARY, THAT IT WAS FOR LAZY PEOPLE, AND HE IMPLIED THAT VELASQUEZ
SHOULD NOT VOTE FOR THE UNION. WHILE THE ORDER DOES NOT EXPRESSLY
PROHIBIT AN AGENCY OR ACTIVITY FROM ENGAGING IN A "VOTE NO" CAMPAIGN, IT
IS CLEARLY ESTABLISHED POLICY, AS REFLECTED IN THE PREAMBLE OF THE ORDER
AND IN SECTION 1(A), THAT AGENCY OR ACTIVITY MANAGEMENT MUST MAINTAIN A
POSTURE OF NEUTRALITY IN ANY REPRESENTATION ELECTION CAMPAIGN. /1/
UNDER THESE CIRCUMSTANCES, AND NOTING ALSO THE TIMING OF GARCIA'S
CONDUCT AND THE FACT THAT IT OCCURRED IN THE CONTEXT OF HIS POSTING OF
THE NOTICE OF ELECTION, I FIND THAT GARCIA'S STATEMENTS TO VELASQUEZ
ALSO IMPROPERLY AFFECTED THE RESULTS OF THE ELECTION. /2/
ACCORDINGLY, THE ELECTION CONDUCTED ON MARCH 28, 1973, IS HEREBY SET
ASIDE AND A SECOND ELECTION WILL BE CONDUCTED AS DIRECTED BELOW.
IT IS HEREBY DIRECTED THAT A SECOND ELECTION BE CONDUCTED, AS EARLY
AS POSSIBLE, BUT NOT LATER THAN SIXTY (60) DAYS FROM THE DATE BELOW, IN
THE UNIT SET FORTH IN THE AGREEMENT FOR CONSENT OR DIRECTED ELECTION
APPROVED ON MARCH 16, 1973. 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 PRECEEDING 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.
DATED, WASHINGTON, D.C.
FEBRUARY 5, 1974
/1/ SEE, IN THIS REGARD, CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, AT
FOOTNOTE 17; AND ALSO ROBERT E. HAMPTON, CHAIRMAN, FEDERAL LABOR
RELATIONS COUNCIL, "FEDERAL LABOR-MANAGEMENT RELATIONS: A PROGRAM IN
EVOLUTION," 21 CATHOLIC UNIVERSITY LAW REVIEW 493, AT 502.
/2/ THE FACT THAT VELASQUEZ SUBSEQUENTLY VOTED FOR THE PETITIONER WAS
NOT CONSIDERED TO REQUIRE A CONTRARY RESULT.
IN THE MATTER OF
ANTILLES CONSOLIDATED SCHOOLS,
ROOSEVELT ROADS, CEIBA, PUERTO RICO
AND
DIVISION INDUSTRIAL, TECHNICAL Y PROFESSIONAL
DE LA NATIONAL MARITIME UNION, AFL-CIO
EDDIE GAUD CARABALLO
AVE. F.D. ROOSEVELT 1252 ALTOS
ESQUINA AVE. DE DIEGO
PUERTO NEUVO, PUERTO RICO
CARL J. ENGEBRETSON
SUPERINTENDENT OF SCHOOLS
ANTILLES CONSOLIDATED SCHOOLS
FORT BUCHANAN
CEIBA, PUERTO RICO
BEFORE: MILTON KRAMER
PURSUANT TO AN AGREEMENT FOR A CONSENT ELECTION, AN ELECTION BY
SECRET BALLOT WAS CONDUCTED ON THE PREMISES OF THE ACTIVITY ON MARCH 29,
1973. THE UNIT FOR WHICH THE ELECTION WAS HELD WAS THE NON-SUPERVISORY
EMPLOYEES OF THE CAFETERIAS IN THE ELEMENTARY AND HIGH SCHOOLS AT THE
NAVAL BASE AT ROOSEVELT ROADS, CEIBA, PUERTO RICO. THERE WAS NO
INCUMBENT REPRESENTATIVE, AND NO INTERVENOR. THE VOTE WAS FIVE FOR THE
PETITIONER AND SIX AGAINST EXCLUSIVE RECOGNITION.
TIMELY OBJECTIONS TO THE ELECTION WERE FILED BY PETITIONER. THE
FIRST OBJECTION WAS THAT WILLIAM GARCIA, A SUPERVISOR, CAMPAIGNED PRIOR
TO THE ELECTION AND PUT PRESSURE ON THE EMPLOYEES TO VOTE AGAINST
REPRESENTATION. THE SECOND OBJECTION WAS A CONTENTION THAT A SUPERVISOR
HAD BEEN PERMITTED TO VOTE ALTHOUGH NOT INCLUDED IN THE UNIT. THE
ASSISTANT REGIONAL DIRECTOR CONCLUDED THAT THE SECOND OBJECTION WAS A
CHALLENGE OF A VOTE WHICH CHALLENGE WAS NOT TIMELY MADE, AND DISMISSED
THAT OBJECTION. NO APPEAL WAS TAKEN FROM THAT DISMISSAL. HE FOUND THAT
THE FIRST OBJECTION RAISED A RELEVANT ISSUE OF FACT AND LAW WHICH MAY
HAVE AFFECTED THE RESULTS OF THE ELECTION AND ISSUED A NOTICE OF HEARING
ON THAT OBJECTION. THE NOTICE WAS ISSUED JULY 20, 1973 FOR A HEARING TO
BE HELD SEPTEMBER 5, 1973.
THE HEARING WAS HELD SEPTEMBER 5, 1973. THE PETITIONER WAS
REPRESENTED BY COUNSEL AND THE ACTIVITY WAS REPRESENTED BY ITS
SUPERINTENDENT OF SCHOOLS. BOTH SIDES WERE AFFORDED OPPORTUNITY TO
EXAMINE AND CROSS-EXAMINE WITNESSES, INTRODUCE OTHER EVIDENCE, MAKE
CLOSING ARGUMENTS, AND FILE BRIEFS. THE PETITIONER FILED A BRIEF ON
OCTOBER 10, 1973. THE ACTIVITY DID NOT FILE A BRIEF.
THE PETITIONER CONTENDS THAT WILLIAM GARCIA WAS A SUPERVISOR
(ALTHOUGH NOT A SUPERVISOR OF THE EMPLOYEES INVOLVED), AND MADE THREATS
AND OTHER STATEMENTS IN AN EFFORT TO INDUCE THE EMPLOYEES IN THE UNIT TO
VOTE AGAINST EXCLUSIVE REPRESENTATION, AND IN FACT DID INDUCE AT LEAST
ONE EMPLOYEE TO VOTE AGAINST EXCLUSIVE RECOGNITION BECAUSE OF FEAR OF
RETALIATION IF RECOGNITION WERE ACHIEVED.
THE ACTIVITY TAKES THE POSITION THAT THE ELECTION WAS VALID, THAT IT
MADE EVERY EFFORT TO PROVIDE AN ENVIRONMENT THAT WOULD AFFORD A FREE
ELECTION, BUT IS UNCONCERNED WITH WHETHER THE ELECTION IS HELD TO HAVE
BEEN VALID OR INVALID.
THE CAFETERIAS IN THE TWO SCHOOLS OF THE ACTIVITY OPERATE WITH
UNAPPROPRIATED FUNDS, DERIVING THEIR FUNDS FROM THE REVENUES FROM THE
REVENUES FROM THE OPERATION OF THE CAFETERIAS. IT IS THE ONLY OPERATION
OF THE ACTIVITY THAT OPERATES WITH UNAPPROPRIATED FUNDS. THE TWO
SCHOOLS ARE IN DIFFERENT BUILDINGS.
WHEN THE ELECTION WAS ORDERED, THE AREA ADMINISTRATOR SENT NOTICES OF
THE ELECTION TO BE POSTED WHERE THE EMPLOYEES INVOLVED WORKED. THESE
NOTICES WERE IN ENGLISH. WHEN THE PRINCIPAL OF THE ELEMENTARY SCHOOL,
GERARD J. HOOLEY, RECEIVED THE NOTICES FOR THE ELEMENTARY SCHOOL THE DAY
BEFORE THE ELECTION, HE GAVE WILLIAM GARCIA COPIES TO BE POSTED AT THREE
PLACES IN THE ELEMENTARY SCHOOL WHERE THEY WERE LIKELY TO BE SEEN
(INCLUDING THE CAFETERIA AND THE FRONT DOOR OF THE SCHOOL). HE ALSO
TOLD GARCIA TO READ A COPY OF THE NOTICE TO THE EMPLOYEES OF THE
ELEMENTARY SCHOOL CAFETERIA AND TO ASK THEM TO INITIAL A COPY OF THE
NOTICE TO SIGNIFY THAT THEY HAD SEEN IT OR HAD IT READ TO THEM. THERE
IS NO PROBATIVE OR SIGNIFICANT EVIDENCE IN THE RECORD CONCERNING THE
POSTING OR OTHER USE OF THE NOTICES IN THE HIGH SCHOOL.
GARCIA HAD NO SUPERVISORY OR ANY OTHER AUTHORITY OVER THE CAFETERIA
EMPLOYEES. HE WAS THE SUPERVISOR OF THE JANITORS IN THE ELEMENTARY
SCHOOL. HIS JOB CLASSIFICATION WAS "JANITOR LEADER."
THREE OF THE CAFETERIA EMPLOYEES WERE NOT CONVERSANT IN ENGLISH.
GARCIA TRANSLATED THE NOTICE TO THEM, AND ENGAGED IN SOME CONVERSATION
WITH THEM. THERE WERE FIVE EMPLOYEES IN THE ELEMENTARY SCHOOL
CAFETERIA. THIS WAS SHORTLY BEFORE 11:00 A.M. AT WHICH TIME THE
EMPLOYEES STARTED WORK. ALL THIS, INCLUDING THE READING, TRANSLATING,
ENGAGING IN CONVERSATION, AND OBTAINING THE INITIALS, LASTED ABOUT THREE
MINUTES, AND TOOK PLACE IN THE KITCHEN THE DAY BEFORE THE ELECTION. THE
NATURE OF THE CONVERSATIONS BETWEEN GARCIA AND THOSE EMPLOYEES IS ONE OF
THE TWO CRITICAL ISSUES IN THE CASE.
GARCIA TESTIFIED THAT HIS CONVERSATION WITH THE EMPLOYEES WAS ONLY
CASUAL CONVERSATION.
ONLY ONE OF THE EMPLOYEES IN THE ELEMENTARY SCHOOL CAFETERIA
TESTIFIED, ANASTASIO VELASQUEZ SANTOS. HE TESTIFIED THAT GARCIA ENGAGED
IN A PRIVATE CONVERSATION WITH HIM IN A CONVERSATIONAL, NON-BELLIGERENT
WAY, EXCHANGING IDEAS ABOUT HAVING A UNION. HE TESTIFIED, AND I FIND,
THAT GARCIA STATED THAT THE UNION WAS UNNECESSARY AND WAS FOR LAZY
PEOPLE, AND IMPLIED THAT VELASQUEZ SHOULD VOTE AGAINST THE UNION.
VELASQUEZ NEVERTHELESS VOTED FOR THE UNION. /1/ VELASQUEZ DID NOT
TESTIFY THAT GARCIA MADE OR IMPLIED THREATS OF ANY KIND.
THE ONLY OTHER WITNESS WHO TESTIFIED ABOUT THE CONDUCT OF GARCIA WAS
ANDRES SERRANO MEDINA. SERRANO WAS AN EMPLOYEE IN THE HIGH SCHOOL
CAFETERIA. GARCIA HAD HAD NOTHING TO DO WITH POSTING THE NOTICE OF
ELECTION OR OTHERWISE APPRISING THE EMPLOYEES OF THE HIGH SCHOOL
CAFETERIA OF THE ELECTION. ALTHOUGH GARCIA WAS A SUPERVISOR OF THE
ACTIVITY'S JANITORS IN THE ELEMENTARY SCHOOL, HE HAD NO SUPERVISORY OR
OTHER AUTHORITY OVER SERRANO OR HIS COWORKERS IN THE HIGH SCHOOL OR ANY
OTHER EMPLOYEE IN THE HIGH SCHOOL. GARCIA AND SERRANO WERE COUSINS.
SERRANO TESTIFIED THAT GARCIA CAME BY THE DAY BEFORE THE ELECTION AND
SPOKE AGAINST HAVING A UNION. SERRANO FELT INTIMIDATED BY WHAT GARCIA
SAID; HE WAS AFRAID THAT IF THE UNION WON THE ELECTION, COMPLAINTS
AGAINST THE EMPLOYEES MIGHT BE MADE AND THEY WOULD LOSE THEIR JOBS. HE
DID NOT KNOW WHAT KIND OF COMPLAINTS MIGHT BE MADE OR TO WHOM THEY MIGHT
BE MADE. HE HAD BEEN EMPLOYED AT THE CAFETERIA FOR TWELVE YEARS, AND
HIS FATHER A YEAR LONGER. HE THEREFORE VOTED AGAINST REPRESENTATION,
ALTHOUGH HE KNEW THERE WAS NO INTERRELATION BETWEEN THE AUTHORITY OVER
HIS WORK AND GARCIA'S WORK.
THIS CASE TURNS ON TWO ISSUES, WHETHER THE ELECTION WAS RENDERED
INVALID EITHER BECAUSE OF GARCIA'S CONDUCT WHEN HE WENT TO THE
ELEMENTARY SCHOOL CAFETERIA TO POST THE NOTICE OF ELECTION AND READ IT
TO THOSE WHO COULD NOT READ ENGLISH, OR BECAUSE OF HIS CONVERSATION THE
SAME DAY WITH HIS COUSIN, SERRANO, WHO WAS AN EMPLOYEE IN THE UNIT AT
THE HIGH SCHOOL CAFETERIA.
GARCIA WENT TO THE ELEMENTARY SCHOOL CAFETERIA AND POSTED THE NOTICE,
READ A COPY IN TRANSLATION TO THE THREE EMPLOYEES WHO COULD NOT READ
ENGLISH, AND OBTAINED THE INITIALS OF ALL FIVE EMPLOYEES IN THAT PART OF
THE UNIT INDICATING THEY HAD READ THE NOTICE OR HAD HAD IT READ TO THEM,
AND ENGAGED IN SOME CONVERSATION WITH THEM. ALL THIS CONSUMED ABOUT
THREE MINUTES. THE FIVE EMPLOYEES KNEW THAT HE WAS A JANITOR IN THE
BUILDING; HE WAS THE LEAD JANITOR WITH SUPERVISORY AUTHORITY OVER THE
OTHER THREE JANITORS.
THE RECORD SHOWS ONLY HIS CONVERSATION WITH VELASQUEZ AT THAT PLACE.
WHAT HW SAID TO VELASQUEZ, OUT OF THE HEARING OF THE OTHER EMPLOYEES IN
THAT CAFETERIA, WAS, AS IT APPEARS IN TRANSLATION:
" . . .HE SPOKE AGAINST THE UNION. WHAT HE SPOKE, AND HOW HE
EXPRESSED, HE SAID THE
FOLLOWING WORDS: THAT THE UNION WAS NOT NECESSARY, THAT THAT WAS TO
MAINTAIN OR TO HAVE LAZY
PEOPLE.
"AND THEN, HIS WAY OF EXPRESSING HIMSELF, HE WANTED TO, HE INSINUATED
THAT WE, THAT WE
SHOULD VOTE AGAINST THE UNION."
GARCIA WAS NOT TOLD BY HOOLEY, THE ELEMENTARY SCHOOL PRINCIPAL, TO
ENGAGE IN ANY DISCUSSION. ALTHOUGH HE WAS A SUPERVISOR, HE WAS NOT A
SUPERVISOR OF THE EMPLOYEES INVOLVED. HE WAS ACTING AS AN EMISSARY OF
THE PRINCIPAL TO POST AND READ THE NOTICE OF ELECTION, AND SO
CONCEIVABLY MAY HAVE BEEN CONSIDERED A REPRESENTATIVE OF THE PRINCIPAL
FOR SOME PURPOSES. BUT WHAT HE SAID WAS MERELY AN EXPRESSION OF HIS
VIEWS, AND DID NOT PURPORT TO BE AN OFFICIAL POSITION OF ANYBODY. THE
LANGUAGE WAS NOT INTIMIDATING LANGUAGE, NOR DID IT INTIMIDATE;
VELASQUEZ VOTED FOR THE UNION. IT CONTAINED NO THREATS OR PROMISES, AND
I CONCLUDE IT WAS NO IMPEDIMENT TO THE FREE AND UNTRAMMELLED EXPRESSION
OF THE EMPLOYEES' CHOICE. ALTHOUGH THE GOAL IN CONDUCTING ELECTIONS IS
THAT THE EMPLOYEES' CHOICE OF A REPRESENTATIVE BE DETERMINED UNDER THE
ANTISEPTIC CONDITIONS OF A METICULOUSLY CONDUCTED LABORATORY EXPERIMENT,
/2/ A SINGLE, INEFFECTUAL DEVIATION FROM PERFECTION IS INSUFFICIENT TO
WARRANT SETTING ASIDE AN ELECTION. /3/
THE INCIDENT INVOLVING SERRANO WAS OF A DIFFERENT NATURE, AND
REQUIRES SETTING ASIDE THE ELECTION. I MAKE NO PRESUMPTION THAT
GARCIA'S CONVERSATION WITH VELASQUEZ AT THE ELEMENTARY SCHOOL BECAME
KNOWN AT THE HIGH SCHOOL OR ITS EFFECT IF IT DID BECOME KNOWN. MY
CONCLUSION IS BASED ON WHAT HE DID AT THE HIGH SCHOOL ALTHOUGH HE HAD NO
FUNCTION TO PERFORM THERE CONCERNING THE ELECTION.
THE SAME DAY AS THE INCIDENT WITH VELASQUEZ AT THE ELEMENTARY SCHOOL,
GARCIA WENT TO THE HIGH SCHOOL AND DISCUSSED THE NEXT DAY'S ELECTION
THERE. THERE IS NO EVIDENCE OF WHAT HE SAID TO OTHERS THAN SERRANO, BUT
THERE IS DIRECT EVIDENCE OF WHAT HE SAID TO SERRANO AND ITS EFFECT.
GARCIA'S CONVERSATION WITH HIS COUSIN SERRANO WAS IN A SOFT,
CONVERSATIONAL TONE. BUT WHAT HE SAID FRIGHTENED SERRANO. HE SPOKE
AGAINST THE UNION OR, AS SERRANO DESCRIBED IT, "DOING POLITICS" AGAINST
THE UNION. SERRANO KNEW THAT GARCIA HAD NO JURISDICTION OVER HIM AND
THAT HIS JURISDICTION WAS LIMITED TO THE JANITORS AT THE ELEMENTARY
SCHOOL. BUT HE KNEW THAT GARCIA WAS A SUPERVISOR, AND BECAME AFRAID
THAT IF HE VOTED FOR THE UNION HIS COUSIN WOULD MAKE COMPLAINTS OF AN
UNSPECIFIED NATURE, TO UNSPECIFIED PEOPLE, PERHAPS TO SERRANO'S
SUPERVISOR, AND THAT AS A RESULT SERRANO MIGHT LOSE HIS JOB. SERRANO
HAD BEEN WORKING IN THE HIGH SCHOOL CAFETERIA ABOUT TWELVE YEARS, AND
HAD A WIFE AND CHILDREN TO SUPPORT. BECAUSE OF HIS FEAR OF WHAT GARCIA
MIGHT SAY TO SERRANO'S SUPERVISOR IF THE UNION WON THE ELECTION, SERRANO
VOTED "WITH FEAR" AND VOTED AGAINST REPRESENTATION.
WHILE WE DO NOT KNOW THE EXACT WORDS OF GARCIA'S STATEMENTS TO
SERRANO, WE DO KNOW THEIR EFFECT AND THAT THAT EFFECT WAS BASED IN PART
ON GARCIA HAVING THE STATUS OF A SUPERVISOR WORKING FOR THE SAME
EMPLOYER. THE FACT THAT GARCIA HAD NO OFFICIAL FUNCTION TO PERFORM AT
THE HIGH SCHOOL DOES NOT NULLIFY THE FACT THAT HE WAS A SUPERVISOR OF
THE ACTIVITY AND INTIMIDATED SERRANO. WHAT GARCIA SAID WAS NOT MERELY A
PERSONAL EXPRESSION OF HIS VIEWS, AS WAS THE INSTANCE OF HIS
CONVERSATION WITH VELASQUEZ, WHICH MIGHT BE PRIVILEGED. IT WAS
INTIMIDATING, AND ESPECIALLY IN AN ELECTION LIKE THIS ONE, WHERE A SWING
OF ONE VOTE WOULD HAVE PRODUCED THE OPPOSITE RESULT, MUST BE HELD FATAL
TO SUSTAINING THE VALIDITY OF THE ELECTION.
THIS CASE DOES NOT INVOLVE THE QUESTION WHETHER THE IMPORTANCE OF THE
PURITY OF THE CONDUCT OF ELECTIONS TRANSCENDS THE IMPORTANCE OF
ASCERTAINING THE UNTRAMMELED CHOICE OF THE MAJORITY OF THE MEMBERS OF
THE UNIT, AND THE CONCOMITANT QUESTION WHETHER IF THE FORMER IS SULLIED
THE ELECTION SHOULD BE SET ASIDE EVEN IF THE LATTER IS FREE OF TAINT.
HERE IT WAS THE LATTER THAT WAS IMPEDED BY THE STATEMENTS OF ONE WHO
BORE AT LEAST SOME OF THE INDICIA OF MANAGEMENT, ENOUGH TO FRIGHTEN
SERRANO. THAT THOSE RESPONSIBLE FOR THE FORMULATION OF MANAGERIAL
POLICY AND ITS FULFILLMENT WERE NOT TO BE BLAMED DOES NOT DETRACT FROM
THE HARM THAT WAS DONE.
I RECOMMEND THAT THE ELECTION BE SET ASIDE AND A NEW ELECTION
ORDERED.
DATED: NOVEMBER 27, 1973
WASHINGTON, D.C.
/1/ THE TRANSCRIPT AT THIS POINT IN THE TESTIMONY (PAGE 41) IS QUITE
UNCLEAR ON WHETHER VELASQUEZ TESTIFIED THAT HE VOTED FOR THE UNION. BUT
I HAVE A DISTINCT RECOLLECTION THAT HE SO TESTIFIED. VELASQUEZ
TESTIFIED THROUGH AN INTERPRETER WHO, WHILE BILINGUAL, WAS NOT AN
EXPERIENCED SIMULTANEOUS INTERPRETER. AT PAGE 74 OF THE TRANSCRIPT, IN
A DISCUSSION WITH UNION COUNSEL (INCORRECTLY REPORTED AS COUNSEL
TALKING) I STATED THAT VELASQUEZ HAD TESTIFIED HE HAD VOTED FOR THE
UNION, AND NOBODY SUGGESTED OTHERWISE. THE TRANSCRIPT IS CORRECTED TO
CHANGE THE WORDS "WILL LIVE" ON THE FOURTH LINE ON PAGE 41 TO "VOTED",
AND ON PAGE 73 THE WORDS "MR. GAUD" ON THE SIXTH FROM THE BOTTOM LINE
ARE CHANGED TO "JUDGE KRAMER".
/2/ CF. NORFOLK NAVAL SHIPYARD, A/SLMR NO. 31 (1971) AND GENERAL
SHOE CORPORATION, 77 NLRB 124 (1948).
/3/ PORTSMOUTH NAVAL SHIPYARD, A/SLMR NO. 241 (1973).
4 A/SLMR 348; P. 103; CASE NOS. 72-3842, 72-3861, AND 72-4128;
JANUARY 25, 1974.
CALIFORNIA NATIONAL GUARD
STATE MILITARY FORCES
SACRAMENTO, CALIFORNIA
A/SLMR NO. 348
THIS PROCEEDING AROSE UPON THE FILING OF THREE UNFAIR LABOR PRACTICE
COMPLAINTS BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, BURBANK,
CALIFORNIA (COMPLAINANT). THE COMPLAINTS ALLEGE, IN SUBSTANCE, (1) THAT
THE RESPONDENT ACTIVITY HAD TAKEN REPRISALS AGAINST ONE OF ITS EMPLOYEES
IN THE FORM OF LETTERS WARNING THE EMPLOYEE OF UNSATISFACTORY
PERFORMANCE AND ABUSE OF SICK LEAVE BECAUSE OF HIS UTILIZATION OF THE
CONTRACTUAL GRIEVANCE PROCEDURE; (2) THAT THE RESPONDENT ACTIVITY
UNILATERALLY AND WITHOUT PRIOR CONSULTATION WITH THE COMPLAINANT, THE
EXCLUSIVE REPRESENTATIVE, CHANGED A CONTRACTUAL CONDITION OF EMPLOYMENT;
AND (3) THAT THE RESPONDENT ACTIVITY'S DENIAL OF MILITARY REENLISTMENT
IN THE CALIFORNIA NATIONAL GUARD TO ONE OF ITS EMPLOYEES WAS IN REPRISAL
FOR HIS UTILIZATION OF THE CONTRACTUAL GRIEVANCE PROCEDURE AND FOR HIS
FILING OF UNFAIR LABOR PRACTICE COMPLAINTS ALL IN VIOLATION OF SECTION
19(A)(1), (2), (4) AND (6) OF THE ORDER.
WITH REGARD TO THE FIRST ALLEGATION, THE ASSISTANT SECRETARY ADOPTED
THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT THE RESPONDENT ACTIVITY'S
CONDUCT VIOLATED 19(A)(1) OF THE ORDER. THE ADMINISTRATIVE LAW JUDGE
CONCLUDED THAT THE EVIDENCE ESTABLISHED THAT THE WARNING LETTERS ISSUED
TO THE EMPLOYEE INVOLVED WERE IN REPRISAL FOR THE LATTER'S ACTIONS IN
FILING A CONTRACTUAL GRIEVANCE. IN THIS REGARD, HE NOTED THAT THE
RECORD DID NOT SUPPORT THE ALLEGATIONS OF DERELICTION OF DUTY OR ABUSE
OF SICK LEAVE ALLEGED IN THE WARNING LETTERS. HOWEVER, THE
ADMINISTRATIVE LAW JUDGE FOUND NO MERIT IN THE COMPLAINANT'S CONTENTION
THAT THE WARNING LETTERS WERE MOTIVATED BY ANTI-UNION CONSIDERATIONS.
AS TO THE SECOND ALLEGATION, THE ASSISTANT SECRETARY ADOPTED THE
ADMINISTRATIVE LAW JUDGE'S CONCLUSION THAT THE RESPONDENT ACTIVITY
VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER BY UNILATERALLY CHANGING
AN AGREED-UPON TERM OF EMPLOYMENT. IN ARRIVING AT THIS CONCLUSION, THE
ADMINISTRATIVE LAW JUDGE NOTED THAT THE CIRCUMSTANCES IN THE INSTANT
CASE WERE SIMILAR TO THOSE IN VETERANS ADMINISTRATION HOSPITAL,
CHARLESTON, SOUTH CAROLINA, A/SLMR NO. 87, IN WHICH THE ASSISTANT
SECRETARY ALSO FOUND VIOLATIONS OF SECTION 19(A)(1) AND (6) OF THE ORDER
BASED ON SIMILAR CONDUCT.
AS TO THE THIRD ALLEGATION, THE ADMINISTRATIVE LAW JUDGE CONCLUDED
THAT FURTHER PROCEEDINGS WERE UNWARRANTED BECAUSE, IN HIS VIEW, THE
EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE RESPONDENT ACTIVITY'S
REFUSAL TO REENLIST THE EMPLOYEE INVOLVED WAS IN REPRISAL FOR THE
LATTER'S ENGAGING IN ACTIVITY PROTECTED UNDER THE ORDER. IN ADOPTING
THE ADMINISTRATIVE LAW JUDGE'S CONCLUSION IN THIS REGARD, THE ASSISTANT
SECRETARY NOTED PARTICULARLY THE ADMINISTRATIVE LAW JUDGE'S CREDIBILITY
RESOLUTIONS AND STATED THAT HE COULD FIND NO BASIS FOR REVERSING SUCH
RESOLUTIONS.
CALIFORNIA NATIONAL GUARD
STATE MILITARY FORCES
SACRAMENTO, CALIFORNIA
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, BURBANK, CALIFORNIA
ON OCTOBER 24, 1973, ADMINISTRATIVE LAW JUDGE BURTON S. STERNBURG
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 FOUND OTHER ALLEGED
CONDUCT OF THE RESPONDENT NOT TO BE VIOLATIVE OF THE ORDER. 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 THIS CASE, INCLUDING THE
EXCEPTIONS AND SUPPORTING BRIEF FILED BY THE COMPLAINANT, I HEREBY ADOPT
THE FINDINGS /1/, CONCLUSIONS /2/ AND RECOMMENDATIONS OF THE
ADMINISTRATIVE LAW JUDGE. /3/
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 CALIFORNIA
NATIONAL GUARD, STATE MILITARY FORCES, SACRAMENTO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
A. TAKING REPRISALS AGAINST ANY OF ITS EMPLOYEES WHO HAVE UTILIZED
THEIR RIGHTS UNDER THE EXECUTIVE ORDER TO FILE A GRIEVANCE UNDER A
NEGOTIATED GRIEVANCE PROCEDURE.
B. UNILATERALLY CHANGING THE SCHEDULING OF THE DAYS OFF OF ITS
EMPLOYEES IN VIOLATION OF ARTICLE VI, SECTION 2 OF ITS COLLECTIVE
BARGAINING AGREEMENT OR ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT,
WITHOUT MEETING AND CONFERRING IN GOOD FAITH WITH LOCAL R-12-123,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, ITS EMPLOYEES' EXCLUSIVE
BARGAINING 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 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 ORDER:
A. REMOVE OR EXPUNGE ANY REFERENCE TO THE AUGUST 29, 1972, WARNING
LETTERS ISSUED TO SERGEANT WARREN WOODS FROM ITS FILES AND SUBMIT TO
SERGEANT WARREN WOODS A WRITTEN ACKNOWLEDGEMENT OF SAME.
B. OBSERVE AND ADHERE TO ALL AGREEMENT PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT BETWEEN THE CALIFORNIA NATIONAL GUARD AND
LOCAL R-12-123, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AND MEET
AND CONFER IN GOOD FAITH WITH ITS EMPLOYEE'S EXCLUSIVE BARGAINING
REPRESENTATIVE, LOCAL R-12-123, NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, WITH RESPECT TO ANY CHANGE IN TERMS AND CONDITIONS OF
EMPLOYMENT.
C. POST AT ITS FACILITIES FOR "A" BATTERY, 4TH MISSILE BATTALION,
251ST ARTILLERY DIVISION, STANTON, 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 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 OR 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 DATE OF THIS ORDER AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY THEREWITH.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 72-4128, BE, AND
IT HEREBY, IS DISMISSED.
IT IS FURTHER ORDERED THAT IN ALL OTHER RESPECTS THE COMPLAINT IN
CASE NO. 72-3842, BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ IT WAS NOTED THAT IN FINDING THAT THERE WAS INSUFFICIENT EVIDENCE
TO SUSTAIN THE ALLEGATION IN THE COMPLAINT IN CASE NO. 72-4128, THAT THE
RESPONDENT IMPROPERLY REFUSED TO PERMIT WOODS TO REENLIST IN THE
CALIFORNIA NATIONAL GUARD BECAUSE WOODS HAD ENGAGED IN PROTECTED
ACTIVITY UNDER THE ORDER, THE ADMINISTRATIVE LAW JUDGE RELIED
PARTICULARLY ON THE CREDITED TESTIMONY OF COLONEL CHRIST, CONCERNING THE
LATTER'S DISSATISFACTION WITH THE WORK PERFORMANCE OF SERGEANT WOODS.
THE ASSISTANT SECRETARY HAS STATED PREVIOUSLY "THAT AS A MATTER OF
POLICY, (HE) WILL NOT OVERRULE A HEARING EXAMINER'S (I.E. ADMINISTRATIVE
LAW JUDGE'S) RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS THE
PREPONDERANCE OF ALL THE RELEVANT EVIDENCE CONVINCES (HIM) THAT SUCH
RESOLUTION CLEARLY WAS INCORRECT." NAVY EXCHANGE, U.S. NAVAL AIR
STATION, QUONSET POINT, RHODE ISLAND, A/SLMR NO. 180, AT FOOTNOTE 1.
UNDER THESE CIRCUMSTANCES, I FIND NO BASIS IN THE RECORD FOR REVERSING
THE ADMINISTRATIVE LAW JUDGE'S CREDIBILITY FINDING WITH RESPECT TO THE
TESTIMONY OF COLONEL CHRIST.
/2/ SECTION 19(D) OF THE ORDER PROVIDES, IN PART, THAT "ISSUES WHICH
CAN BE PROPERLY RAISED UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED
UNDER THIS SECTION (19) . . . " THE RECORD IN THE INSTANT CASE DOES NOT
REFLECT WHETHER OR NOT THERE WAS AN APPEALS PROCEDURE SERGEANT WOODS
COULD HAVE UTILIZED AS A RESULT OF THE REFUSAL TO PERMIT HIM MILITARY
REENLISTMENT. HOWEVER, IN VIEW OF THE DISPOSITION HEREIN ON THE MERITS,
IT WAS CONSIDERED UNNECESSARY TO DETERMINE WHETHER SECTION 19(D) HAD ANY
APPLICABILITY IN THIS MATTER. COMPARE, DEPARTMENT OF DEFENSE, NATIONAL
GUARD BUREAU, TEXAS AIR NATIONAL GUARD, A/SLMR NO. 336.
/3/ WITH RESPECT TO THE COMPLAINT IN CASE NO. 72-3842, THE
ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) BY ISSUING CERTAIN WARNINGS TO SERGEANT WOODS. WHILE HE
INADVERTENTLY FAILED TO MAKE SPECIFIC FINDINGS WITH RESPECT TO THE
19(A)(2) AND (6) ALLEGATIONS IN THE SAME COMPLAINT, IT IS CLEAR FROM A
READING OF HIS REPORT AND RECOMMENDATIONS THAT THE ADMINISTRATIVE LAW
JUDGE INTENDED TO DISMISS SUCH ADDITIONAL ALLEGATIONS. UNDER THESE
CIRCUMSTANCES AND AS THE RECORD DOES NOT SUPPORT THE 19(A)(2) AND (6)
ALLEGATIONS IN THE COMPLAINT IN CASE NO. 72-3842, SUCH ALLEGATIONS ARE
HEREBY DISMISSED.
WE WILL NOT TAKE REPRISALS AGAINST ANY EMPLOYEES WHO UTILIZE THEIR
RIGHTS UNDER THE EXECUTIVE ORDER TO FILE A GRIEVANCE UNDER A NEGOTIATED
GRIEVANCE PROCEDURE.
WE WILL NOT UNILATERALLY CHANGE THE SCHEDULING OF THE DAYS OFF OF OUR
EMPLOYEES IN VIOLATION OF ARTICLE VI, SECTION 2 OF THE COLLECTIVE
BARGAINING AGREEMENT OR ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT
WITHOUT MEETING AND CONFERRING IN GOOD FAITH WITH LOCAL R-12-123,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, 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 THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
WE WILL REMOVE OR EXPUNGE ANY REFERENCE TO THE AUGUST 29, 1972,
WARNING LETTERS ISSUED TO SERGEANT WARRENT WOODS FROM OUR FILES AND
SUBMIT TO SERGEANT WARREN WOODS A WRITTEN ACKNOWLEDGEMENT OF SAME.
WE WILL OBSERVE AND ADHERE TO ALL PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT BETWEEN THE CALIFORNIA NATIONAL GUARD AND
OUR EMPLOYEES' EXCLUSIVE BARGAINING REPRESENTATIVE, LOCAL R-12-123,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, AND MEET AND CONFER IN
GOOD FAITH WITH SUCH LABOR ORGANIZATION WITH RESPECT TO ANY CHANGE IN
TERMS AND CONDITIONS OF EMPLOYMENT.
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
CALIFORNIA NATIONAL GUARD
STATE MILITARY FORCES
SACRAMENTO, CALIFORNIA
AND
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
BURBANK, CALIFORNIA
WILLIARD A. SHANK, ESQUIRE
ASSISTANT ATTORNEY GENERAL
555 CAPITOL MALL
SACRAMENTO, CALIFORNIA 95814
MAJOR MILLER, ASSISTANT
TECHNICIAN PERSONNEL OFFICER
STATE MILITARY DEPARTMENT
ROGER P. KAPLAN, ESQUIRE
GENERAL COUNSEL, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES
SUITE 512, 1341 "G" STREET, N.W.
WASHINGTON, D.C. 20005
BEFORE: BURTON S. STERNBURG
ADMINISTRATIVE LAW JUDGE
PURSUANT TO COMPLAINTS FIRST FILED ON OCTOBER 2, 1972 /1/ , UNDER
EXECUTIVE ORDER 11491, AS AMENDED, BY THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, BURBANK, CALIFORNIA (HEREINAFTER CALLED THE UNION
OR ASSOCIATION) AGAINST CALIFORNIA NATIONAL GUARD, STATE MILITARY FORCES
(HEREINAFTER CALLED THE RESPONDENT OR NATIONAL GUARD) A NOTICE OF
HEARING ON COMPLAINT WAS FIRST ISSUED BY THE REGIONAL ADMINISTRATOR FOR
THE SAN FRANCISCO REGION ON MAY 18, 1973. /2/
THE COMPLAINTS ALLEGE, IN SUBSTANCE, (1) THAT RESPONDENT HAS TAKEN
VARIOUS REPRISALS AGAINST SERGEANT WOODS BECAUSE OF HIS ACTIONS IN
UTILIZING THE CONTRACTUAL GRIEVANCE PROCEDURE AND FILING UNFAIR LABOR
PRACTICE COMPLAINTS AGAINST THE RESPONDENTS; AND (2)) THAT RESPONDENT
UNILATERALLY AND WITHOUT PRIOR CONSULTATION WITH THE UNION, THE
EXCLUSIVE BARGAINING REPRESENTATIVE, CHANGED A CONTRACTUAL CONDITION OF
EMPLOYMENT, ALL IN VIOLATION OF SECTIONS 19(A)(1), (2), (4) AND (6) OF
THE EXECUTIVE ORDER. /3/
A HEARING WAS HELD IN THE CAPTIONED MATTER ON AUGUST 23, 1973, IN LOS
ANGELES, CALIFORNIA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED
HEREIN. SUBSEQUENTLY, BOTH PARTIES FILED BRIEFS WHICH HAVE BEEN DULY
CONSIDERED.
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, CONCLUSIONS AND RECOMMENDATIONS:
BACKGROUND
THE NATIONAL GUARD EMPLOYS VARIOUS INDIVIDUALS IN BOTH CIVILIAN AND
MILITARY CAPACITIES. EMPLOYMENT IN THE FORMER REQUIRES MEMBERSHIP IN
THE LATTER. THUS AS WILL BE DISCUSSED INFRA, ABSENCE OF MEMBERSHIP IN A
PARTICULAR NATIONAL GUARD UNIT DISQUALIFIES AN INDIVIDUAL FROM
EMPLOYMENT IN A CIVILIAN CAPACITY FROM ANY WORK UNDER THE AUSPICIES OF
THE PARTICULAR NATIONAL GUARD UNIT. ADDITIONALLY, THE CHAIN OF COMMAND
IN BOTH THE CIVILIAN AND MILITARY ASPECTS OF THE VARIOUS JOBS INVOLVED
APPEARS TO BE IDENTICAL, WITH THE EXCEPTIONS OF THE JOB TITLES OR RANK
OF THE INDIVIDUALS INVOLVED. THUS WARREN WOODS, THE ALLEGED
DISCRIMINATEE HEREIN, CARRIED THE RANK OF SERGEANT IN HIS MILITARY
CAPACITY AND THE TITLE OF SECTION CHIEF, A NON-SUPERVISORY POSITION FOR
PURPOSES OF THE ORDER, IN HIS CIVILIAN CAPACITY. IT FURTHER APPEARS
THAT THE DUTIES INVOLVED IN BOTH CAPACITIES, I.E., CIVILIAN AND
MILITARY, WERE HIGHLY INTEGRATED. BEING ASSIGNED TO BATTERY A OF THE
NATIONAL GUARD DURING THE TIME THE EVENTS LEADING UP TO THE INSTANT
DISPUTE TOOK PLACE, WOODS WAS UNDER THE ULTIMATE SUPERVISION OF CAPTAIN
FRANK T. POULALION, BATTERY COMMANDER, CAPTAIN POULALION HELD THE
CIVILIAN AND/OR TECHNICIAN TITLE OF BATTERY SUPERVISOR. BELOW AND ABOVE
CAPTAIN POULALION IN THE CHAIN OF COMMAND, IN BOTH CIVILIAN AND MILITARY
CAPACITIES, WERE LIEUTENANT NEILL AND COLONEL HOWARD CHRIST,
RESPECTIVELY. COLONEL CHRIST HELD THE TITLES OF BATTALION COMMANDER AND
BATTALION SUPERVISOR. THE MISSION OF BATTERY A IS TO PROVIDE AIR
DEFENSE COMMAND WITH AIR DEFENSE WEAPONS (NIKE MISSILES) IN THE DEFENSE
OF ATTACKING AIRCRAFT. TO THIS END THE INDIVIDUALS EMPLOYED THEREIN, IN
BOTH CIVILIAN AND MILITARY CAPACITIES, ARE RESPONSIBLE FOR THE TECHNICAL
MAINTENANCE OF THE MILITARY DEPLOYMENT OF MISSILES. THE UNION IS THE
EXCLUSIVE BARGAINING AGENT UNDER THE PROVISIONS OF EXECUTIVE ORDER 11491
"FOR ALL EMPLOYEES OF THE 4TH MISSILE BATTALION, 251 ARTILLERY" AND
PARTY TO A COLLECTIVE BARGAINING AGREEMENT WITH THE BATTALION DATED JULY
19, 1971.
WARNING OF UNSATISFACTORY PERFORMANCE.
ON JULY 23, 1972, SERGEANT WOODS WAS CALLED INTO THE OFFICE OF
CAPTAIN POULALION AND INFORMED BY HIM THAT HE, WOODS, WAS ABOUT TO BE
MADE THE SUBJECT OF AN ARTICLE 15 DISCIPLINARY ACTION FOR BEING LATE TO
A BATTERY FORMATION. CAPTAIN POULALION FURTHER INFORMED SERGEANT WOODS
THAT HE WAS GENERALLY DISSATISFIED WITH HIS WORK PERFORMANCE AND THAT
HE, POULALION, WANTED HIM TO TAKE A VOLUNTARY REDUCTION WITH RESPECT TO
HIS CIVILIAN EMPLOYMENT AS A TECHNICIAN FROM NGW-11 TO NGW-8. DURING
THE ENSUING DISCUSSION, POULALION FURTHER INFORMED WOODS THAT IF WOODS
WOULD VOLUNTARILY ACCEPT THE REDUCTION IN GRADE THAT HE, POULALION,
WOULD THEN FOREGO THE ARTICLE 15 ACTION. POULALION ALSO INFORMED WOODS
THAT HE, POULALION, WAS IN A POSITION TO GIVE HIM AN UNSATISFACTORY
PERFORMANCE RATING. THE MEETING OR DISCUSSION ENDED WITH WOODS AGREEING
TO CONSIDER THE MATTER AND REPORT BACK HIS DECISION THEREON LATER IN THE
DAY. SUBSEQUENTLY, WOODS DISCUSSED THE MATTER WITH CLAUDE EDGREN, FIRST
VICE PRESIDENT OF THE UNION, AND IT WAS DECIDED THAT WOODS SHOULD TAKE
THE ARTICLE 15 RATHER THAN THE DOWNGRADE AND THAT THE UNION WOULD FILE A
GRIEVANCE ON HIS BEHALF. WOODS INFORMED POULALION OF HIS DECISION ON
THE AFTERNOON OF JULY 23, 1972, AND AT A SUBSEQUENT UNSPECIFIED TIME
RECEIVED THE ARTICLE 15 DISCIPLINARY ACTION FOR ARRIVING LATE AT THE
RESERVE MEETING.
THEREAFTER, ON OR ABOUT AUGUST 3, 1972, THE UNION INITIATED A
GRIEVANCE ON WOODS BEHALF CONCERNING THE JULY 23, 1972, DISCUSSION
BETWEEN WOODS AND POULALION. BY LETTER DATED AUGUST 26, 1972, FOLLOWING
AN INVESTIGATION OF THE GRIEVANCE, CAPTAIN POULALION RECEIVED A FORMAL
WRITTEN REPRIMAND FOR "HIS INJUDICIOUS ACTIONS" AND "WAS ADMONISHED TO
CEASE IMMEDIATELY AND HEREAFTER THE EQUIVOCAL PRACTICE INVOLVING
DISCIPLINARY OR ADVERSE ACTIONS AGAINST TECHNICIAN EMPLOYEES."
THREE DAYS AFTER THE ISSUANCE OF THE FORMAL REPRIMAND TO CAPTAIN
POULALION, ON AUGUST 29, LIEUTENANT NEILL, LAUNCHING AREA SUPERVISOR,
FOLLOWING CONSULTATION WITH CAPTAIN POULALION, ISSUED A WARNING OF
UNSATISFACTORY PERFORMANCE TO WOODS. THE WARNING CRITICIZED WOODS' WORK
PERFORMANCE AND SICK LEAVE RECORD. WITH RESPECT TO WORK PERFORMANCE THE
WARNING CITED TWO SPECIFIC DEFICIENCIES DISCLOSED DURING A JULY 22, 1972
INSPECTION, I.E. DIRTY RAM PRESSURE PROBES AND THREE LOOSE SCREWS ON A
MISSILE ACCESS DOOR. AS TO ALLEGED SICK LEAVE ABUSE, THE LETTER OF
WARNING STATED THAT SINCE SEPTEMBER 1, 1971, WOODS HAD USED SICK LEAVE
ON EIGHT DIFFERENT OCCASIONS. /4/
ACCORDING TO WOODS' UNCONTRADICTED TESTIMONY THE DEFICIENCIES CITED
IN THE WARNING LETTER COULD OCCUR AT ANYTIME AND WERE NOT NECESSARILY
THE PRODUCT OF A PREVIOUS DERELICTION OF DUTY ON HIS PART AS SECTION
CHIEF. FURTHER, ACCORDING TO WOODS' TESTIMONY, HE WAS ATTENDING
TRAINING SCHOOL AT FORT MCARTHUR DURING THE ENTIRE WEEK PRECEDING THE
JULY 22, 1972 INSPECTION AND WAS NOT AT ANYTIME DURING SUCH WEEK AT THE
MISSILE SITE. DURING HIS ABSENCE FROM THE MISSILE SITE, WOODS' SECTION
WAS UNDER THE COMMAND AND/OR SUPERVISION OF HIS SUBORDINATE, SERGEANT
CHAGOLIAN.
WITH REGARD TO WOODS' ALLEGED ABUSE OF SICK LEAVE, THE OFFICIAL SICK
LEAVE DURING THE FIRST EIGHT MONTHS OF 1972, ONLY ONE OF WHICH OCCURRED
ON A MONDAY FOLLOWING A WEEKEND. HOWEVER, AS POINTED OUT BY CAPTAIN
POULALION, DUE TO THE NATURE OF THE OPERATION THE EMPLOYEES DO NOT
NECESSARILY WORK A MONDAY THROUGH FRIDAY WORK WEEK. THUS ON OCCASION
EMPLOYEES MIGHT WELL WORK THROUGH A WEEKEND AND BE GIVEN TWO DAYS OFF
DURING THE MIDDLE OF A WEEK IN LIEU OF THEIR CUSTOMARY SATURDAY AND
SUNDAY OFF. ACCORDING TO POULALION, WHOSE TESTIMONY IN THIS REGARD WAS
NOT CONTROVERTED, ONE OF WOODS' SICK LEAVE ABSENCES OCCURRED ON A
TUESDAY FOLLOWED A SUNDAY AND MONDAY NON-WORKING WEEKEND. POULALION
FURTHER TESTIFIED TO THE FACT THAT WOODS HAD BEEN GIVEN AN ORAL
REPRIMAND RELATIVE TO THE USE OF SICK LEAVE IN NOVEMBER OF 1971, BUT
THAT SINCE SUCH TIME HIS SICK LEAVE RECORD "IMPROVED SOMEWHAT."
POULALION FURTHER ACKNOWLEDGED THAT THERE WERE PROBABLY OTHER EMPLOYEES
IN HIS UNIT WHO HAD USED MORE THAN FOUR DAYS SICK LEAVE SINCE JANUARY
1972.
UNILATERAL CHANGE IN WORK SCHEDULE
THE COLLECTIVE BARGAINING AGREEMENT IN EFFECT BETWEEN THE UNION AND
THE NATIONAL GUARD PROVIDES IN ARTICLE VI, SECTION 2 AS FOLLOWS:
(WORK) SCHEDULE WILL BE POSTED TWO WEEKS IN ADVANCE, BUT MAY HAVE TO
BE REVISED TO MEET
REQUIREMENTS IMPOSED BY HIGHER HEADQUARTERS IF NECESSITATED BY
UNFORSEEABLE
CIRCUMSTANCES. EFFORTS WILL BE MADE BY THE EMPLOYER TO AVOID AN
UNDESIRABLE INCONVENIENCE TO
INDIVIDUALS AS A RESULT OF RESCHEDULING. ADDITIONALLY, CHANGES, IF
MADE WITHIN ONE (1) WEEK
OF THE EFFECTIVE DATE, WILL BE BROUGHT TO THE ATTENTION OF THE
INDIVIDUAL CONCERNED BY THE
EMPLOYER . . .
THE RECORD ESTABLISHES THAT CLAUDE EDGREN, FIRST VICE-PRESIDENT OF
THE UNION, AND SERGEANT WOODS WERE, ACCORDING TO A POSTED WORK SCHEDULE,
DUE TO BE OFF FROM WORK ON LABOR DAY, SEPTEMBER 4, 1972. /5/ IT FURTHER
APPEARS THAT AT LEAST EDGREN WAS ALSO SCHEDULED TO BE OFF ON SUNDAY
SEPTEMBER 3, 1972, THE DAY PRECEDING LABOR DAY. PURSUANT TO SUCH
SCHEDULING EDGREN HAD PLANNED A WEEKEND EXCURSION. HOWEVER, UPON
REPORTING FOR WORK ON SEPTEMBER 2, 1972, EDGREN AND WOODS NOTICED THAT
THE POSTED SCHEDULE HAD BEEN CHANGED WITHOUT ANY PRIOR NOTIFICATION TO
THEM. THE UNILATERALLY REVISED SCHEDULE CAUSED BOTH EMPLOYEES TO WORK
ON LABOR DAY SEPTEMBER 4, 1972.
DISCHARGE OF SERGEANT WOODS
ON NOVEMBER 3, 1972, SERGEANT WOODS PLEADED GUILTY IN THE MUNICIPAL
COURT OF THE NORTH ORANGE COUNTY JUDICIAL DISTRICT OF THE STATE OF
CALIFORNIA TO DRIVING ON APRIL 22, 1972 UNDER THE INFLUENCE OF
INTOXICATING LIQUOR, A MISDEMEANOR. THE PRESIDING JUDGE FINED WOODS
$735, IMPOSED AND SUSPENDED A 30 DAY JAIL SENTENCE AND PUT HIM ON
PROBATION FOR ONE YEAR. SUBSEQUENTLY, AS WILL BE NOTED INFRA, UPON
MOTION BY WOODS' ATTORNEY, WOODS' PROBATION WAS TERMINATED ON FE0RUARY
15, 1973. /6/
ON DECEMBER 7, 1972, CAPTAIN POULALION, IN ACCORDANCE WITH APPLICABLE
REGULATIONS, SUBMITTED TO THE COMMANDER, 4TH BATTALION, 251ST AIR
DEFENSE ARTILLERY, A REQUEST FOR DISCIPLINARY ACTION AGAINST WOODS. THE
REQUEST READS IN PERTINENT PART AS FOLLOWS:
ON 27 NOVEMBER 1972, WARREN WOODS REPORTED FOR DUTY TWO HOURS LATE.
HE FAILED TO NOTIFY
THE UNIT OF THE REASONS FOR HIS TARDINESS. UPON HIS REPORTING FOR
DUTY, WARREN C. WOODS
STATED TO HIS SUPERVISOR, 1LT NEILL, THAT HE HAD OVERSLEPT. DUE TO A
PREVIOUS RECORD OF
TARDINESS, LT NEILL FOUND THE EXCUSE UNACCEPTABLE AND WARREN C.
WOODS WAS CHARGED TWO HOURS
LEAVE WITHOUT PAY.
ON 3 DECEMBER 1972, WARREN C. WOODS WAS ORDERED TO REPORT FOR DUTY AT
0630 HOURS ON 5
DECEMBER 1972, TO SUPERVISE DAILY EQUIPMENT CHECKS IN HIS MISSILE
SECTION IN PREPARATION FOR A
SCHEDULED LOGISTICS READINESS EVALUATION CONDUCTED BY HEADQUARTERS,
6TH REGION. HE FAILED TO
NOTIFY THE UNIT AND SUBSEQUENTLY REPORTED AT 0900 HOURS WHEN THE
EVALUATION WAS IN FULL
PROGRESS. HE FAILED TO NOTIFY THE UNIT AS REQUIRED. SUBSEQUENT TO
THIS INCIDENT, WARREN
C. WOODS REPORTED FIVE MINUTES LATE FOR DUTY ON 7 DECEMBER 1972.
A LETTER OF REPRIMAND WAS GIVEN TO WARREN C. WOODS ON 24 APRIL 1972
DETAILING PREVIOUS
OFFENSES OF HABITUAL TARDINESS . . .
REQUEST THAT A SIX DAY SUSPENSION BE APPROVED AS PROVIDED FOR IN
NATIONAL GUARD REGULATIONS
. . .
THE INDIVIDUAL HAS BEEN INFORMED OF THIS VIOLATION AND IS AWARE THAT
DISCIPLINARY ACTION
MAY RESULT THEREFROM. /7/
ON JANUARY 24, 1973, WOODS WAS INFORMED THAT A THREE DAY SUSPENSION
(RATHER THAN THE SIX RECOMMENDED) HAD BEEN APPROVED BECAUSE OF HIS
FAILURE TO REPORT ON TIME ON NOVEMBER 27 AND DECEMBER 3, 1972. HE WAS
FURTHER INFORMED THAT THE SUSPENSION WAS TO BE EFFECTIVE FEBRUARY 14,
15, AND 16, 1973.
BY LETTER DATED FEBRUARY 2, 1973, WOODS WAS INFORMED BY COLONEL
CHRIST THAT HIS CURRENT ENLISTMENT IN THE NATIONAL GUARD WAS TO EXPIRE
ON FEBRUARY 21, 1973, THAT DUE TO HIS CONVICTION FOR DRUNKEN DRIVING
EXTENSION OF HIS CURRENT ENLISTMENT WOULD NOT BE ALLOWED WITHOUT A
WAIVER, THAT INITIATION OF WAIVER WAS THE PREROGATIVE OF CHRIST'S OFFICE
AND THAT CHRIST HAD DETERMINED THAT A WAIVER "WILL NOT BE SUBMITTED."
THE LETTER WENT ON TO INFORM WOODS THAT HIS "CONTINUED MEMBERSHIP IN
THIS BATTALION IN A MILITARY STATUS IS MANDATORY FOR RETENTION AS AN AIR
DEFENSE TECHNICIAN."
BY LETTER DATED FEBRUARY 23, 1973, SERGEANT WOODS WAS INFORMED BY
COLONEL SELF, TECHNICIAN PERSONNEL OFFICER AS FOLLOWS:
THIS OFFICE HAS RECEIVED OFFICIAL NOTICE OF YOUR LOSS OF MILITARY
MEMBERSHIP IN THE
CALIFORNIA ARMY NATIONAL GUARD EFFECTIVE 21 FEBRUARY 1973. IN
ACCORDANCE WITH EXISTING
REGULATIONS, THIS WILL ADVISE YOU THAT YOUR TECHNICIAN EMPLOYMENT,
THEREFORE, WILL BE
TERMINATED EFFECTIVE 27 MARCH 1973.
IN THE INTERIM, AFTER BEING INFORMED THAT CHRIST WOULD NOT GRANT HIM
A WAIVER, WOODS TOOK STEPS TO ENLIST IN ANOTHER NATIONAL GUARD UNIT,
NAMELY THE 351ST SUPPLY AND SERVICE COMPANY. THE COMMANDER OF THE 351ST
SUPPLY AND SERVICE COMPANY REQUESTED THE NECESSARY WAIVER ON FEBRUARY
22, 1973. THE WAIVER WAS SUBSEQUENTLY GRANTED ON MARCH 7, 1973. WOODS
IS CURRENTLY A MEMBER OF THE 351ST SUPPLY AND SERVICE COMPANY BUT IS NOT
EMPLOYED BY SUCH UNIT IN A CIVILIAN CAPACITY.
WITH RESPECT TO THE DENIAL OF A WAIVER FOR WOODS, COLONEL CHRIST
CREDIBLY TESTIFIED THAT HE PERSONALLY PARTICIPATED ALONG WITH CAPTAIN
POULALION IN THE DECISION TO DENY THE WAIVER, THAT HE HAD KNOWN WOODS
FOR SOME TEN YEARS HAVING DIRECTLY SUPERVISED HIM WHEN HE WAS WOODS'
BATTERY COMMANDER, THAT HE HAD BEEN DISSATISFIED WITH WOODS' PERFORMANCE
DURING SUCH PERIOD AND HAD GONE SO FAR AS TO TRANSFER HIM ON TWO
OCCASIONS TO LESS SENSITIVE JOBS WHICH WOODS' ALSO FAILED TO PERFORM TO
CHRIST'S SATISFACTION. ALTHOUGH CHRIST ACKNOWLEDGED GIVING WOODS
SATISFACTORY RATINGS DURING THE PERIOD IN WHICH HE WAS UNDER HIS
ULTIMATE COMMAND, CHRIST MADE IT CLEAR THAT SUCH RATINGS WERE AT BEST
MARGINAL. CHRIST FURTHER POINTED OUT THAT IN VIEW OF THE NATURE OF THE
WORK INVOLVED, I.E., THE NECESSITY TO BECOME OPERATIONAL ON SHORT
NOTICE, THE RELIABILITY OF HIS MEN MUST BE ABOVE REPROACH. IN THIS
LATTER CONTEXT HE POINTED OUT TWO OCCASIONS WHERE HE HAD DENIED WAIVERS
TO INDIVIDUALS UNDER HIS COMMAND.
WARNINGS AND DENIAL OF REENLISTMENT
SECTION 1(A) OF THE ORDER PROVIDES THAT EACH EMPLOYEE FALLING WITHIN
ITS JURISDICTION, I.E., EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT,
SHALL HAVE THE RIGHT TO FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL
TO FORM, JOIN AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN FROM SUCH
ACTIVITY, AND EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH
RIGHT. THE ORDER FURTHER PROVIDES THAT ANY ABRIDGEMENT OF THE
AFOREMENTIONED RIGHTS SHALL CONSTITUTE AN UNFAIR LABOR PRACTICE WITHIN
THE MEANING OF SECTION 19(A)(1).
ONCE MAJORITY STATUS IS ACHIEVED BY A LABOR ORGANIZATION, IT IS
DEEMED THE EXCLUSIVE BARGAINING REPRESENTATIVE OF ALL THE EMPLOYEES IN
THE UNIT AND ANY BENEFITS, ETC., INCLUDED IN ANY SUBSEQUENT COLLECTIVE
BARGAINING CONTRACT FLOW TO THE EMPLOYEES SINCE THE UNION IS AT ALL
TIMES ACTING AS THEIR AGENT. BY VIRTUE OF THE ORDER ITSELF, AS AMENDED,
ALL COLLECTIVE BARGAINING CONTRACTS MUST CONTAIN A GRIEVANCE PROCEDURE,
UTILIZATION OF WHICH, IN MATTERS OTHER THAN APPLICATION AND
INTERPRETATION OF THE TERMS OF THE CONTRACT, IS OPTIONAL TO THE
EMPLOYEES INVOLVED.
BASED UPON THE AFOREMENTIONED PROVISIONS, AMONG OTHERS, OF THE
EXECUTIVE ORDER THE ASSISTANT SECRETARY HAS CONCLUDED THAT THE FILING OF
A GRIEVANCE FALLS WITHIN THE RIGHTS GENERALLY ENUMERATED IN SECTION 1(A)
OF THE 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 ISSUANCE OF THE AUGUST 29, 1972, WARNING LETTERS TO
SERGEANT WOODS AND/OR HIS SUBSEQUENT DENIAL OF ENLISTMENT IN THE
NATIONAL GUARD AND CONSEQUENT LOSS OF CIVILIAN EMPLOYMENT WERE IN ANY
WAY RELATED TO HIS ACTION IN FILING A GRIEVANCE OR UNFAIR LABOR PRACTICE
COMPLAINT, THEN A VIOLATION OF THE ORDER IS ESTABLISHED.
WITH RESPECT TO THE WARNINGS FOR ALLEGED UNSATISFACTORY WORK AND
ABUSE OF SICK LEAVE, I CONCLUDE, IN AGREEMENT WITH THE CONTENTION OF THE
COMPLAINANT, /8/ THAT SUCH WARNINGS WERE IN FACT MOTIVATE), AT LEAST IN
PART BY WOODS' ACTION IN FILING A GRIEVANCE. IN REACHING THIS
CONCLUSION I HAVE RELIED PRIMARILY ON THE TIMING OF THE WARNINGS, I.E.
WITHIN THREE DAYS OF THE REPRIMAND OF CAPTAIN POULALION THE ABSENCE OF
ANY SUBSTANTIAL EVIDENCE INDICATING WOODS' RESPONSIBILITY FOR THE
DEFICIENCIES DISCLOSED BY THE JULY 22ND INSPECTION AND THE FACT THAT
FOUR ABSENCES (ONLY TWO OF WHICH POSSIBLY OCCURRED AFTER A WEEKEND) IN
AN EIGHT MONTH PERIOD, STANDING ALONE, DO NOT, CONSTITUTE AN ABUSE OF
SICK LEAVE.
CONCERNING THE TIMING OF THE WARNINGS, THE RECORD ESTABLISHES THAT
WOODS LAST UTILIZED HIS SICK LEAVE DURING THE 13TH PAY PERIOD, I.E.,
JUNE 11 THROUGH JUNE 24, 1972, SOME TWO MONTHS PRIOR TO THE ISSUANCE OF
THE WARNING FOR ABUSE OF SAME. ADDITIONALLY, NO MEANINGFUL EXPLANATION
APPEARS IN THE RECORD FOR THE DELAY IN ISSUING THE SICK LEAVE WARNING OR
THE WARNING RELATIVE TO THE ALLEGED DERELICTION OF DUTY DISCLOSED BY THE
JULY 22ND INSPECTION. THE ALLEGED DERELICTION HAVING OCCURRED SOME
THIRTY DAYS EARLIER AND AT A TIME WHEN WOODS HAD NO AUTHORITY OVER THE
COMPANY, BEING, PURSUANT TO INSTRUCTIONS, IN ATTENDANCE AT SCHOOL DURING
THE ENTIRE WEEK PRECEDING THE INSPECTION.
ACCORDINGLY, IN VIEW OF THE FOREGOING AND SINCE THE WARNINGS DO NOT
IN ANY EVENT WITHSTAND SCRUTINY, I FIND THAT THE ISSUANCE OF THE
WARNINGS TO SERGEANT WOODS CONSTITUTED A VIOLATION OF SECTION 19(A)(1)
OF THE ORDER, BEING IN REPRISAL FOR HIS ACTIONS IN FILING A GRIEVANCE.
WITH RESPECT TO THE DENIAL OF WOODS' REENLISTMENT AND CONSEQUENT LOSS
OF CIVILIAN EMPLOYMENT, A PREPONDERANCE OF THE CREDITED AND UNCONTESTED
EVIDENCE SUPPORTS THE CONCLUSION THAT SUCH ACTIONS ON BEHALF OF THE
RESPONDENT WERE BASED SOLELY ON HIS WORK AND/OR ATTENDANCE RECORD AND
UNRELATED TO THE GRIEVANCE OR UNFAIR LABOR PRACTICE COMPLAINT FILED BY
THE UNION ON WOODS' BEHALF. IN REACHING THIS CONCLUSION, I NOTE THAT
THE RESPONDENT'S DISSATISFACTION WITH WOODS JOB PERFORMANCE PREDATED THE
FILING OF THE GRIEVANCE. IN FACT, IT WAS THE ALTERNATIVE OFFER OF
ACCEPTING A DEMOTION RATHER THAN AN ARTICLE 15 DISCIPLINARY ACTION WHICH
GAVE RISE TO THE GRIEVANCE WHICH UNDERLIES THIS PROCEEDING. WITH REGARD
TO WOODS' ATTENDANCE RECORD, THE LETTER OF DECEMBER 7, 1972, THE
ALLEGATIONS OF WHICH ARE UNCONTESTED, CITES AT LEAST FOUR INSTANCES
WHERE WOODS REPORTED FOR DUTY LATE. THREE OF SUCH INSTANCES OCCURRED
SUBSEQUENT TO THE JULY ALTERCATION WITH CAPTAIN POULALION.
ADDITIONALLY, ACCORDING TO THE TESTIMONY OF COLONEL CHRIST, WHOM I FIND
TO BE A MOST CREDIBLE WITNESS AND WHO ACTIVELY PARTICIPATED IN THE
DECISION TO DENY WOODS' REENLISTMENT, DURING THE 10 YEARS OR SO THAT
WOODS HAD BEEN UNDER HIS COMMAND, WOODS HAD FAILED TO SATISFACTORILY
PERFORM HIS JOB, CAUSING COLONEL CHRIST ON AT LEAST TWO OCCASIONS TO
REASSIGN HIM TO OTHER LESS CRITICAL JOBS. COLONEL CHRIST FURTHER
TESTIFIED THAT UNLIKE OTHER GUARD UNITS, HIS UNIT IS SET UP FOR "NUCLEAR
CAPACITY" AND IS EXPECTED TO BE OPERATIONAL WITHIN THREE HOURS NOTICE.
IN VIEW OF THE CRITICAL NATURE OF THE COMMAND THE MEN EMPLOYED THEREIN
MUST BE HIGHLY DEPENDABLE, A TRAIT NOT EVIDENCED BY WOODS.
IN VIEW OF THE FOREGOING AND PARTICULARLY THE CREDITED TESTIMONY OF
COLONEL CHRIST, I FIND INSUFFICIENT EVIDENCE TO SUSTAIN THE SECTION
19(A)(1), (2) AND (4) ALLEGATIONS OF THE COMPLAINT CONCERNING THE DENIAL
OF WOODS' REENLISTMENT AND SHALL RECOMMEND THAT THEY BE DISMISSED.
UNILATERAL CHANGE IN WORK SCHEDULE
ACCORDING TO THE UNCONTESTED TESTIMONY OF WOODS AND EDGREN SOMETIME
DURING THE WEEK OF AUGUST 28, 1972, THE WORK SCHEDULE, WHICH HAD BEEN
POSTED IN ACCORDANCE WITH ARTICLE VI, SECTION 2, OF THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT BETWEEN THE UNION AND RESPONDENT, WAS
UNILATERALLY CHANGED BY RESPONDENT'S AGENTS WITHOUT ANY PRIOR
CONSULTATION WITH, OR NOTICE TO, THE AFFECTED EMPLOYEES. THERE IS NO
CONTENTION BY RESPONDENTS THAT THE CHANGE WAS NOT A VIOLATION OF THE
CONTRACTUAL PROVISION OR FELL WITHIN THE EXCEPTION THERETO, I.E.
"UNFORSEEABLE CIRCUMSTANCES."
IN VETERANS ADMINISTRATION HOSPITAL, CHARLESTON, SOUTH CAROLINA,
A/SLMR NO. 87, A CASE INVOLVING SIMILAR IF NOT IDENTICAL CIRCUMSTANCES,
THE ASSISTANT SECRETARY CONCLUDED THAT SUCH ACTION BY A RESPONDENT
CONSTITUTED INDEPENDENT VIOLATIONS OF SECTIONS 19(A)(1) AND (6) OF THE
ORDER. IN AFFIRMING THE ADMINISTRATIVE LAW JUDGE'S DECISION, THE
ASSISTANT SECRETARY STATED IN PERTINENT PART AS FOLLOWS:
THE OBLIGATION OF AN AGENCY OR ACTIVITY TO CONSULT, CONFER AND
NEGOTIATE WITH AN EXCLUSIVE
REPRESENTATIVE AND THE PRIVILEGE OF SUCH REPRESENTATIVE TO NEGOTIATE
A BINDING AGREEMENT WOULD
BECOME MEANINGLESS IF A PARTY TO SUCH RELATIONSHIP WAS FREE TO MAKE
UNILATERAL CHANGES IN THE
AGREEMENT NEGOTIATED. EVERY DISPUTE WHICH ARISES AS TO
INTERPRETATION OR APPLICATION OF A
PROVISION OF A NEGOTIATED AGREEMENT DOES NOT NECESSARILY CONSTITUTE A
19(A)(6) OR 19(B)(6)
VIOLATION SIMPLY BECAUSE ONE PARTY ACCUSES THE OTHER OF VIOLATING
SUCH AGREEMENT. HOWEVER,
WHERE, WITHOUT PRIOR NEGOTIATIONS, A PARTY INITIATES A COURSE OF
ACTION WHICH CLEARLY
CONTRAVENES THE AGREED UPON TERMS OF ITS NEGOTIATED AGREEMENT . . .
THE BARGAINING
REQUIREMENTS OF THE ORDER HAVE BEEN VIOLATED.
THE ASSISTANT SECRETARY WENT ON TO CONCLUDE THAT THE RESPONDENT NOT
ONLY VIOLATED 19(A)(6) BUT ALSO 19(A)(1) SINCE ITS ACTION HAD THE EFFECT
OF EVIDENCING TO EMPLOYEES THAT IT COULD ACT UNILATERALLY WITH RESPECT
TO NEGOTIATED TERMS AND CONDITIONS OF EMPLOYMENT WITH REGARD TO THEIR
EXCLUSIVE REPRESENTATIVE.
INASMUCH AS THE ASSISTANT SECRETARY'S COMMENTS AND CONCLUSIONS ARE
EQUALLY APPLICABLE TO THE FACTS DISCLOSED HEREIN AND SINCE THERE IS NO
CONTENTION THAT THE UNILATERAL CHANGE IN THE WORK SCHEDULE WAS IN ANY
WAY BASED UPON CONTRACTUAL INTERPRETATION, I FIND THAT THE RESPONDENT BY
UNILATERALLY CHANGING AN AGREED UPON TERM OF EMPLOYMENT VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) ABD (6) OF THE EXECUTIVE ORDER 11491, AS
AMENDED, I RECOMMEND THAT THE ASSISTANT SECRETARY ADOPT THE FOLLOWING
ORDER DESIGNED TO EFFECTUATE THE POLICIES OF THE ORDER. I ALSO
RECOMMEND THAT THE SECTIONS 19(A)(1), (2) AND (4) ALLEGATIONS WITH
RESPECT TO SERGEANT WOODS' DENIAL OF REENLISTMENT AND SUBSEQUENT
DISCHARGE 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 CALIFORNIA
NATIONAL GUARD, STATE MILITARY FORCES, SACRAMENTO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) TAKING REPRISALS AGAINST ANY OF ITS EMPLOYEES WHO HAVE UTILIZED
THEIR RIGHTS UNDER THE
EXECUTIVE ORDER TO FILE A GRIEVANCE.
(B) UNILATERALLY CHANGING THE SCHEDULING OF THE DAYS OFF OF ITS
EMPLOYEES IN VIOLATION OF
ARTICLE VI, SECTION 2 OF ITS COLLE.TIVE BARGAINING AGREEMENT OR ANY
OTHER TERMS AND CONDITIONS
OF EMPLOYMENT WITHOUT CONSULTING, CONFERRING OR NEGOTIATING WITH
LOCAL R-12-123, NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES.
(C) INTERFERING, WITH, RESTRAINING OR COERCING EMPLOYEES BY
UNILATERALLY CHANGING THEIR
TERMS AND CONDITIONS OF EMPLOYMENT WITHOUT CONSULTING, CONFERRING OR
NEGOTIATING WITH THEIR
EXCLUSIVE BARGAINING REPRESENTATIVE.
(D) 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 ORDER:
(A) REMOVE OR EXPUNGE ANY REFERENCE TO THE AUGUST 29, WARNING LETTERS
ISSUED TO SERGEANT
WOODS FROM ITS FILES AND SUBMIT TO SERGEANT WOODS A WRITTEN
ACKNOWLEDGEMENT OF SAME.
(B) OBSERVE AND ADHERE TO ALL PROVISIONS OF THE COLLECTIVE BARGAINING
CONTRACT IN EFFECT
BETWEEN THE NATIONAL GUARD AND LOCAL R-12-123, NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES
AND CONSULT, CONFER AND NEGOTIATE IN GOOD FAITH WITH LOCAL R-12-123,
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES WITH RESPECT TO ANY CHANGE IN TERMS AND
CONDITIONS OF EMPLOYMENT.
(C) POST AT ITS FACILITIES FOR "A" BATTERY, 4TH MISSILE BATTALION,
251ST ARTILLERY
DIVISION, STANTON, 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 ?HE COMMANDING OFFICER 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 OR
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 DATE OF THIS ORDER AS TO WHAT STEPS HAVE
BEEN TAKEN TO COMPLY
THEREWITH.
DATED AT WASHINGTON, D.C.
OCTOBER 24, 1973
WE WILL NOT TAKE REPRISALS AGAINST ANY EMPLOYEES WHO UTILIZE THEIR
RIGHTS UNDER THE EXECUTIVE ORDER TO FILE A GRIEVANCE.
WE WILL NOT UNILATERALLY CHANGE THE SCHEDULING OF THE DAYS OFF OF OUR
EMPLOYEES IN VIOLATION OF ARTICLE VI, SECTION 2 OF THE COLLECTIVE
BARGAINING AGREEMENT OR ANY OTHER TERMS AND CONDITIONS OF EMPLOYMENT
WITHOUT CONSULTING, CONFERRING OR NEGOTIATING WITH LOCAL R-12-123,
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFER WITH, RESTRAIN, OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
WE WILL REMOVE OR EXPUNGE ANY REFERENCE TO THE AUGUST 29, 1972,
WARNING LETTERS ISSUED TO SERGEANT WARREN WOODS FROM OUR FILES AND
SUBMIT TO SERGEANT WARREN WOODS A WRITTEN ACKNOWLEDGEMENT OF SAME.
WE WILL OBSERVE AND ADHERE TO ALL PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT IN EFFECT BETWEEN THE NATIONAL GUARD AND LOCAL
R-12-123, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND CONSULT,
CONFER AND NEGOTIATE IN GOOD FAITH WITH SUCH ORGANIZATION WITH RESPECT
TO ANY CHANGE IN TERMS AND CONDITIONS OF EMPLOYMENT.
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 REGIONAL
ADMINISTRATOR OF THE 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.
/1/ THE COMPLAINT IN CASE NO. 72-3842, FIRST FILED ON OCTOBER 2,
1972, WAS SUBSEQUENTLY TWICE AMENDED ON UNSPECIFIED DATES IN 1973. THE
COMPLAINTS IN CASE NOS. 72-3861 AND 72-4128 WERE FILED ON OCTOBER 11,
1972 AND APRIL 5, 1973, RESPECTIVELY.
/2/ THE CASES WERE CONSOLIDATED FOR HEARING BY ORDERS DATED MAY 18
AND JULY 23, 1973. THE NOTICE OF HEARING WAS SUBSEQUENTLY AMENDED BY
ORDER DATED AUGUST 14, 1973.
/3/ COMPLAINANT'S COUNSEL, IN POST HEARING BRIEF, CONTENDS FOR THE
FIRST TIME THAT RESPONDENT'S FAILURE TO REFER SERGEANT WOODS' GRIEVANCE
TO A HEARING EXAMINER, PER WOODS' REQUEST, CONSTITUTES AN INDEPENDENT
VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE EXECUTIVE ORDER. INASMUCH
AS THE MATTER WAS NOT SO ALLEGED AS A VIOLATION IN THE CONSOLIDATED
COMPLAINT NOR RAISED AS A VIOLATION AND FULLY LITIGATED DURING THE
HEARING, I FIND AND CONCLUDE THAT THE MATTER IS NOT AN ISSUE BEFORE ME,
AND MAKE NO LEGAL CONCLUSIONS WITH RESPECT TO SAME. MOREOVER, WHILE
EVIDENCE BEARING ON WOODS' REQUEST AND DENIAL OF SAME BY RESPONDENT WAS
ADMITTED AT THE HEARING, SUCH EVIDENCE WAS DIRECTED SOLELY TO THE
REASONS UNDERLYING WOODS' WARNINGS AND SUBSEQUENT DISCHARGE. AT NO TIME
DURING THE HEARING DID COMPLAINANT'S COUNSEL URGE OR INDICATE THAT SUCH
EVIDENCE SUPPORTED AN INDEPENDENT 19(A)(1) AND (6) FINDING. IN THESE
CIRCUMSTANCES, TO NOW RELY UPON SUCH EVIDENCE TO ESTABLISH AN
INDEPENDENT 19(A)(1) AND (6) VIOLATION OF THE EXECUTIVE ORDER BY
RESPONDENT, WITHOUT ANY ADVANCE NOTICE, WOULD CONSTITUTE AN ABUSE OF DUE
PROCESS.
/4/ THE PARTIES STIPULATED THAT SERGEANT WOODS EARNS 13 DAYS SICK
LEAVE FOR EACH 12 MONTH PERIOD.
/5/ THE WORK SCHEDULE IS NORMALLY POSTED TWO WEEKS IN ADVANCE.
/6/ THE NATIONAL GUARD RULES AND REGULATIONS, PARAGRAPH 13(D) NGR
601-200 PROVIDES: "MEMBERS OF THE CAL ARNG WHO HAVE BEEN CONVICTED BY
CIVIL COURT FOR OTHER THAN A FELONY SUBSEQUENT TO THEIR LAST ENLISTMENT,
MAY NOT EXTEND THEIR ENLISTMENTS UNLESS A WAIVER OF THE OFFENSE IS
GRANTED." ACCORDING TO THE RECORD, THE GRANTING OF A WAIVER IS WITHIN
THE SOLE PREROGATIVE OF THE COMMANDING OFFICER. IN WOODS' CASE, THE
WAIVER WOULD BE UP TO COLONEL CHRIST.
/7/ INASMUCH AS THE COMPLAINANT DID NOT IN ANYWAY ATTACK THE TRUTH OF
THE MATTERS STATED IN THE AFOREQUOTED PARAGRAPHS OF THE DECEMBER 7,
1972, LETTER, WHICH WAS ADMITTED INTO EVIDENCE WITHOUT OBJECTION, I FIND
THAT THE MATTERS ALLEGED THEREIN OCCURRED AS STATED.
/8/ I FIND NO MERIT TO COMPLAINANT'S ALTERNATIVE CONTENTION THAT THE
WARNING WAS MOTIVATED IN PART BY POULALION'S UNION ANIMUS. IN THIS
CONTEXT I CREDIT POULALION'S DENIAL OF SAME AND NOTE THAT THE RECORD
TESTIMONY CONCERNING ANY REMARKS MADE BY POULALION WITH RESPECT TO UNION
MEMBERSHIP WERE CONFINED SOLELY TO STATEMENTS OF HIS OPINION RELATIVE TO
THE WISDOM OF INCLUDING IN THE UNIT ANY INDIVIDUALS HAVING SUBORDINATES
UNDER HIS COMMAND.
4 A/SLMR 347; P. 99; CASE NO. 20-3858(RO); JANUARY 25, 1974.
GENERAL SERVICES ADMINISTRATION,
REGION 3
A/SLMR NO. 347
THIS CASE INVOLVED A REPRESENTATION PETITION FILED BY THE
INTERNATIONAL FEDERATION OF FEDERAL POLICE (IFFP) SEEKING AN ELECTION IN
A UNIT OF ALL FEDERAL PROTECTIVE OFFICERS (FPO'S) ASSIGNED TO GENERAL
SERVICES ADMINISTRATION, REGION 3, FACILITIES AT WILKES-BARRE AND
HARRISBURG, PENNSYLVANIA. THE ACTIVITY AGREED THAT THE CLAIMED UNIT WAS
APPROPRIATE. THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES (AFGE)
CONTENDED THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT DID NOT SHARE A
COMMUNITY OF INTEREST IN THAT THE ACTIVITY'S HARRISBURG AND WILKES-BARRE
FACILITIES WERE AUTONOMOUS FACILITIES SEPARATED BY 100 MILES.
WITH THE EXCEPTION OF THE FPO'S IN WILKES-BARRE, ALL FPO'S UNDER THE
JURISDICTION OF THE ACTIVITY'S PUBLIC BUILDINGS SERVICE'S PHILADELPHIA
AREA OFFICE, WHICH ENCOMPASSED THE STATE OF PENNSYLVANIA, WERE
REPRESENTED EXCLUSIVELY IN THREE SEPARATE UNITS. AND, IN ALL OF THESE
UNITS, EXCEPT FOR THE MIXED UNIT OF FPO'S AND NON-GUARD EMPLOYEES AT
HARRISBURG REPRESENTED BY AFGE LOCAL 2962, THERE WERE NEGOTIATED
AGREEMENTS CURRENTLY IN EFFECT. THEREFORE, THE INSTANT PETITION
INCLUDED ALL FPO'S UNDER THE JURISDICTION OF THE ACTIVITY'S PUBLIC
BUILDINGS SERVICE'S (PBS) PHILADELPHIA AREA OFFICE, EXCEPT FOR THOSE IN
RECOGNIZED UNITS WHERE AGREEMENT BARS EXIST.
UNDER THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THE CLAIMED
UNIT TO BE APPROPRIATE. IN THIS REGARD, HE NOTED PARTICULARLY THAT THE
CLAIMED UNIT INCLUDED ALL OF THE FPO'S UNDER THE JURISDICTION OF THE PBS
PHILADELPHIA AREA OFFICE, EXCEPT FOR THOSE EMPLOYEES IN EXCLUSIVELY
RECOGNIZED UNITS WHERE AGREEMENT BARS EXISTED; THAT THE CLAIMED
EMPLOYEES WERE SUBJECT TO THE SAME OVERALL DIRECTION AND GUIDANCE AND
THE SAME PERSONNEL PRACTICES AND PROCEDURES; AND THAT THEY WERE ENGAGED
IN ESSENTIALLY THE SAME JOB FUNCTIONS.
WITH RESPECT TO THE EXISTING MIXED UNIT OF THE ACTIVITY'S FPO'S AND
NON-GUARD EMPLOYEES LOCATED AT HARRISBURG, REPRESENTED BY AFGE LOCAL
2962, THE ASSISTANT SECRETARY FOUND, IN ACCORDANCE WITH TREASURY
DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, A/SLMR NO.
45, THAT SEVERANCE OF THE FPO'S WAS WARRANTED AND THAT AFGE LOCAL 2962,
A NON-GUARD LABOR ORGANIZATION, WOULD NOT BE PLACED ON THE BALLOT.
HOWEVER, CONSISTENT WITH HIS RATIONALE IN UNITED STATES DEPARTMENT OF
THE ARMY, ROCKY MOUNTAIN MOUNTAIN ARSENAL, DENVER, COLORADO, A/SLMR NO.
325, THE ASSISTANT SECRETARY DETERMINED THAT IF THE FPO'S IN THE
HARRISBURG UNIT DID NOT CHOOSE THE IFFP AS THEIR EXCLUSIVE
REPRESENTATIVE, THEY WOULD BE VIEWED TO HAVE INDICATED THEIR DESIRE TO
REMAIN IN THE EXISTING MIXED UNIT OF FPO'S AND NON-GUARD EMPLOYEES
REPRESENTED BY AFGE LOCAL 2962. IF, ON THE OTHER HAND, THE MAJORITY OF
THE FPO'S IN THE HARRISBURG UNIT VOTED FOR THE IFFP, THERE WOULD BE A
POOLING OF THE BALLOTS WITH THOSE VOTING IN THE RESIDUAL AREA-WIDE UNIT.
GENERAL SERVICES ADMINISTRATION,
REGION 3
AND
INTERNATIONAL FEDERATION OF
FEDERAL POLICE
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 TERRENCE J.
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 FILED BY THE
ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, INTERNATIONAL FEDERATION OF FEDERAL POLICE,
HEREIN CALLED IFFP, SEEKS AN ELECTION IN A UNIT OF ALL GUARDS, U.S.
SPECIAL POLICE AND FEDERAL PROTECTIVE OFFICERS (FPO'S) ASSIGNED TO THE
GENERAL SERVICES ADMINISTRATION, REGION 3, FACILITIES AT HARRISBURG AND
WILKES-BARRE, PENNSYLVANIA, EXCLUDING SUPERVISORS, MANAGEMENT OFFICIALS,
PROFESSIONAL EMPLOYEES, AND EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK
IN OTHER THAN A PURELY CLERICAL CAPACITY. /1/
THE ACTIVITY AGREES WITH THE IFFP THAT THE CLAIMED UNIT OF FPO'S IS
APPROPRIATE. /2/ ON THE OTHER HAND, THE INTERVENOR, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, HEREIN CALLED AFGE, TAKES THE POSITION
THAT THE EMPLOYEES IN THE PETITIONED FOR UNIT DO NOT SHARE A COMMUNITY
OF INTEREST IN THAT THE ACTIVITY'S HARRISBURG AND WILKES-BARRE
FACILITIES ARE AUTONOMOUS FACILITIES SEPARATED BY 100 MILES.
THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 3, IS RESPONSIBLE
FOR THE MANAGEMENT OF FEDERAL BUILDINGS WITHIN ITS GEOGRAPHIC AREA.
GSA, REGION 3, IS HEADQUARTERED IN WASHINGTON, D.C., AND ENCOMPASSES THE
STATES OF PENNSYLVANIA, MARYLAND, VIRGINIA, WEST VIRGINIA AND DELAWARE,
AS WELL AS WASHINGTON, D.C. ALL OF THE EMPLOYEES IN THE CLAIMED UNIT
ARE EMPLOYED BY THE PUBLIC BUILDING SERVICE (PBS), A SUBDIVISION OF THE
GSA. WITHIN REGION 3, THE PBS HAS SEVEN AREA OFFICES, EACH HEADED BY AN
AREA MANAGER. THE PHILADELPHIA AREA OFFICE HAS JURISDICTION OVER ALL
PBS EMPLOYEES IN THE STATE OF PENNSYLVANIA. UNDER THE PHILADELPHIA AREA
OFFICE THERE ARE FIVE FIELD OFFICES, THREE LOCATED IN PHILADELPHIA /3/
AND ONE EACH IN PITTSBURGH AND WILKES-BARRE.
THE RECORD DISCLOSES THAT, WITH THE EXCEPTION OF THE FPO'S AT
WILKES-BARRE, ALL FPO'S AND GUARDS UNDER THE JURISDICTION OF THE
PHILADELPHIA AREA OFFICE ARE REPRESENTED EXCLUSIVELY BY SEVERAL AFGE
LOCALS. SPECIFICALLY, AFGE LOCAL 2962 REPRESENTS ALL PBS EMPLOYEES,
INCLUDING THE FPO'S IN HARRISBURG; AFGE LOCAL 2541 REPRESENTS ALL PBS
EMPLOYEES, INCLUDING GUARDS AND FPO'S IN PITTSBURGH; AND AFGE LOCAL
2061 REPRESENTS A UNIT OF ALL PBS WAGE GRADE EMPLOYEES, GUARDS AND FPO'S
IN PHILADELPHIA. /4/ IN EFFECT, THE UNIT OF 5 FPO'S IN WILKES-BARRE AND
APPROXIMATELY 18 FPO'S IN HARRISBURG, SOUGHT BY THE IFFP IN THIS MATTER,
ENCOMPASSES ALL OF THE FPO'S UNDER THE JURISDICTION OF THE ACTIVITY'S
PBS PHILADELPHIA AREA OFFICE, EXCEPT FOR THOSE IN RECOGNIZED UNITS WHERE
AGREEMENT BARS EXIST.
THE RECORD REVEALS THAT THE PBS AREA MANAGER IN PHILADELPHIA HAS
OVERALL ADMINISTRATIVE AND TECHNICAL SUPERVISION OVER THE PBS FIELD
OFFICES IN THE STATE OF PENNSYLVANIA. IN TURN, THE FIELD OFFICES ARE
UNDER THE IMMEDIATE SUPERVISION OF BUILDINGS MANAGERS. TECHNICAL
DIRECTION AND SUPPORT FOR PROTECTIVE ACTIVITIES ARE PROVIDED BY THE
ACTIVITY'S FEDERAL PROTECTIVE SERVICE DIVISION. THUS, "LINE" AUTHORITY
EMANATES FROM THE PBS AREA MANAGER THROUGH THE BUILDINGS MANAGERS, WHILE
CERTAIN STAFF SERVICES ARE PROVIDED BY THE FEDERAL PROTECTION SERVICE
DIVISION. THE FPO'S IN WILKES-BARRE ARE SUPERVISED BY AN FPO SERGEANT
WHO REPORTS TO THE BUILDINGS MANAGER IN WILKES-BARRE, AND THE FPO'S IN
HARRISBURG ARE SUPERVISED BY AN FPO LIEUTENANT AND SERGEANT WHO REPORT
TO A BUILDINGS MANAGER IN PHILADELPHIA. THE BUILDINGS MANAGERS REPORT
DIRECTLY TO THE PBS AREA MANAGER IN PHILADELPHIA.
THE PHILADELPHIA PBS AREA MANAGER IS RESPONSIBLE FOR THE OVERALL
STAFFING OF THE FIELD OFFICES UNDER HIS JURISDICTION. ALL REQUESTS FOR
HIRING AND PROMOTIONS MUST GO THROUGH THE AREA MANAGER, ALTHOUGH THE
FINAL AUTHORITY FOR APPROVAL OF PERSONNEL ACTIONS IS THE REGIONAL
OFFICE. FURTHER, THE AREA MANAGER ATTEMPTS TO RESOLVE GRIEVANCES BEFORE
SENDING THEM TO THE REGIONAL OFFICE AND REVIEWS ALL PROPOSED
DISCIPLINARY ACTIONS TO MAKE CERTAIN THAT ALL ELEMENTS OF THE ALLEGED
OFFENSE HAVE BEEN PROVEN PRIOR TO SENDING THEM TO THE REGIONAL OFFICE
FOR FINAL APPROVAL. THE AREA MANAGER ALSO HOLDS REGULAR MEETINGS WITH
LABOR ORGANIZATIONS WITHIN THE PHILADELPHIA AREA HAVING NEGOTIATED
AGREEMENTS IN ORDER TO RESOLVE ANY ISSUES THAT MAY HAVE NOT BEEN
RESOLVED AT THE FIELD OFFICE LEVEL.
PERSONNEL SERVICES FOR THE EMPLOYEES IN THE CLAIMED UNIT ARE PROVIDED
BY THE GSA PERSONNEL OFFICE IN PHILADELPHIA. THE EVIDENCE ESTABLISHES
THAT THIS OFFICE PROVIDES SUCH SERVICES AS: RECRUITMENT, PLACEMENT,
MERIT PROMOTION, POSITION CLASSIFICATION, POSITION AND MANAGEMENT
STUDIES, TRAINING, AND, TO SOME EXTENT, LABOR-MANAGEMENT RELATIONS, TO
ALL GSA EMPLOYEES IN THE STATE OF PENNSYLVANIA. MOREOVER, PERSONNEL
FOLDERS FOR ALL ACTIVITY EMPLOYEES ARE MAINTAINED IN THIS OFFICE. THE
FPO'S IN THE CLAIMED UNIT WEAR THE SAME UNIFORMS, HAVE ARREST POWERS,
HAVE A COMMON MISSION AND PERFORM ESSENTIALLY THE SAME JOB FUNCTION.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE EMPLOYEES IN THE
PETITIONED FOR UNIT POSSESS A CLEAR AND IDENTIFIABLE COMMUNITY OF
INTEREST AND THAT SUCH A UNIT WILL PROMOTE EFFECTIVE DEALINGS AND
EFFICIENCY OF AGENCY OPERATIONS. THUS, THE EVIDENCE ESTABLISHES THAT
THE CLAIMED UNIT INCLUDES ALL OF THE FPO'S UNDER THE JURISDICTION OF THE
PBS PHILADELPHIA AREA OFFICE EXCEPT FOR THOSE EMPLOYEES IN EXCLUSIVELY
RECOGNIZED UNITS WHERE AGREEMENT BARS EXIST; THAT THE CLAIMED EMPLOYEES
PERFORM ESSENTIALLY THE SAME JOB FUNCTIONS; THAT ALL OF THE EMPLOYEES
IN THE CLAIMED UNIT ARE SUBJECT TO THE SAME PERSONNEL PRACTICES AND
PROCEDURES; AND THAT ALL OF THE EMPLOYEES IN THE CLAIMED UNIT ARE
SUBJECT TO THE OVERALL DIRECTION AND GUIDANCE OF THE PBS AREA MANAGER IN
PHILADELPHIA. ACCORDINGLY, EXCEPT AS MODIFIED BELOW, I SHALL DIRECT AN
ELECTION IN THE PETITIONED FOR UNIT WHICH I FIND TO BE APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. /5/
WITH RESPECT TO THE EXISTING MIXED UNIT OF THE ACTIVITY'S FPO'S AND
NON-GUARD EMPLOYEES LOCATED IN HARRISBURG, PENNSYLVANIA AND CURRENTLY
REPRESENTED BY AFGE LOCAL 2962, THE ASSISTANT SECRETARY HELD IN TREASURY
DEPARTMENT, UNITED STATES MINT, PHILADELPHIA, PENNSYLVANIA, A/SLMR NO.
45, THAT WHERE, AS HERE, A TIMELY PETITION SEEKS TO SEVER A UNIT OF ALL
GUARD EMPLOYEES FROM AN EXISTING UNIT OF GUARD AND NON-GUARD EMPLOYEES,
SUCH UNIT OF GUARDS IS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
RECOGNITION. /6/ UNDER THESE CIRCUMSTANCES, I FIND THAT THE FOLLOWING
EMPLOYEES IN VOTING GROUP (A) SHOULD BE AFFORDED THE OPPORTUNITY TO
EXPRESS THEIR DESIRE AS TO WHETHER OR NOT THEY WISH TO BE INCLUDED
WITHIN THE CLAIMED UNIT:
VOTING GROUP (A): ALL FEDERAL PROTECTIVE OFFICERS LOCATED IN
HARRISBURG, PENNSYLVANIA,
EMPLOYED BY AND ASSIGNED TO THE GENERAL SERVICES ADMINISTRATION,
REGION 3, PHILADELPHIA AREA
OFFICE, EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AS DEFINED IN THE
ORDER.
FURTHER, BASED ON THE FOREGOING, I FIND THAT THE FOLLOWING EMPLOYEES
IN VOTING GROUP (B) CONSTITUTE A UNIT APPROPRIATE FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION WITHIN THE MEANING OF THE ORDER:
VOTING GROUP (B): ALL FEDERAL PROTECTIVE OFFICERS LOCATED IN THE
STATE OF PENNSYLVANIA,
EMPLOYED BY AND ASSIGNED TO THE GENERAL SERVICES ADMINISTRATION,
REGION 3, PHILADELPHIA AREA
OFFICE, EXCLUDING ALL GUARDS AND FEDERAL PROTECTIVE OFFICERS EMPLOYED
BY AND ASSIGNED TO THE
GENERAL SERVICES ADMINISTRATION, REGION 3, IN HARRISBURG, PITTSBURGH,
AND PHILADELPHIA,
PENNSYLVANIA, PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER
THAN A PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND
SUPERVISORS AS DEFINED IN THE
ORDER.
IN THESE CIRCUMSTANCES, I WILL NOT MAKE ANY FINAL UNIT DETERMINATION
AT THIS TIME, BUT SHALL FIRST ASCERTAIN THE DESIRES OF THE CLAIMED
EMPLOYEES IN VOTING GROUP (A). AS NOTED ABOVE, SECTION 10(B)(3) AND
10(C) OF EXECUTIVE ORDER 11491, AS AMENDED, INDICATE THAT APPROPRIATE
UNITS ESTABLISHED UNDER EXECUTIVE ORDER 11491 SHOULD NOT BE COMPOSED OF
MIXTURES OF GUARDS AND NON-GUARDS AND THAT NON-GUARD LABOR ORGANIZATIONS
SHOULD NOT REPRESENT GUARDS. ACCORDINGLY, ALTHOUGH AFGE INTERVENED
TIMELY IN THE INSTANT PROCEEDING, I WILL NOT PERMIT AFGE'S NAME TO BE
PLACED ON THE BALLOT. HOWEVER, CONSISTENT WITH THE RATIONALE IN UNITED
STATES DEPARTMENT OF THE ARMY, ROCKY MOUNTAIN ARSENAL, DENVER, COLORADO,
A/SLMR NO. 325, IF A MAJORITY OF THE EMPLOYEES IN VOTING GROUP (A) DOES
NOT CHOOSE THE IFFP AS THEIR EXCLUSIVE REPRESENTATIVE, THEY WILL BE
VIEWED TO HAVE INDICATED THEIR DESIRE TO REMAIN IN THE EXISTING MIXED
UNIT REPRESENTED BY AFGE LOCAL 2962. /7/
THE UNIT DETERMINATION IN THE SUBJECT CASE IS BASED, IN PART, THEN,
UPON THE RESULTS OF THE ELECTION IN VOTING GROUP (A). HOWEVER, I WILL
NOW MAKE THE FOLLOWING FINDINGS IN REGARD TO THE APPROPRIATE UNIT:
1. IF A MAJORITY OF EMPLOYEES IN VOTING GROUP (A) VOTES FOR THE
IFFP, THE FOLLOWING EMPLOYEES WOULD CONSTITUTE A UNIT APPROPRIATE FOR
THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER:
ALL FEDERAL PROTECTIVE OFFICERS LOCATED IN THE STATE OF PENNSYLVANIA
EMPLOYED BY AND
ASSIGNED TO THE GENERAL SERVICES ADMINISTRATION, REGION 3,
PHILADELPHIA AREA OFFICE, EXCLUDING
ALL GUARDS AND FEDERAL PROTECTIVE OFFICES EMPLOYED BY AND ASSIGNED TO
THE GENERAL SERVICES
ADMINISTRATION, REGION 3, IN PITTSBURGH AND PHILADELPHIA,
PENNSYLVANIA, PROFESSIONAL
EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN
A PURELY CLERICAL
CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS AS DEFINED IN THE
ORDER.
2. IF A MAJORITY OF EMPLOYEES IN VOTING GROUP (A) DOES NOT VOTE FOR
THE IFFP, THE FOLLOWING EMPLOYEES WOULD CONSTITUTE A UNIT APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER:
ALL FEDERAL PROTECTIVE OFFICERS LOCATED IN THE STATE OF PENNSYLVANIA,
EMPLOYED BY AND
ASSIGNED TO THE GENERAL SERVICES ADMINISTRATION, REGION 3,
PHILADELPHIA AREA OFFICE, EXCLUDING
ALL GUARDS AND FEDERAL PROTECTIVE GENERAL SERVICES ADMINISTRATION,
REGION 3, IN HARRISBURG,
PITTSBURGH AND PHILADELPHIA, PENNSYLVANIA, PROFESSIONAL EMPLOYEES,
EMPLOYEES ENGAGED IN
FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL CAPACITY,
MANAGEMENT OFFICIALS AND
SUPERVISORS 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 BELOW. THE APPROPRIATE AREA ADMINISTRATOR
SHALL SUPERVISE THE ELECTIONS 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 IN VOTING GROUPS (A) AND (B) SHALL VOTE
WHETHER OR NOT THEY DESIRE TO BE REPRESENTED FOR THE PURPOSE OF
EXCLUSIVE RECOGNITION BY THE INTERNATIONAL FEDERATION OF FEDERAL POLICE.
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ ALTHOUGH THE CLAIMED UNIT INCLUDES THE CLASSIFICATIONS OF GUARD
AND U.S. SPECIAL POLICE, THE RECORD REVEALS THAT THE ACTIVITY CURRENTLY
HAS NO EMPLOYEES IN THESE CLASSIFICATIONS AT ITS HARRISBURG AND
WILKES-BARRE LOCATIONS. ACCORDINGLY, I SHALL MAKE NO FINDING WITH
RESPECT TO THEIR ELIGIBILITY FOR INCLUSION IN THE CLAIMED UNIT. CF.
ARMY AND AIR FORCE EXCHANGE SERVICE, GOLDEN GATE EXCHANGE REGION,
STORAGE AND DISTRIBUTION BRANCH, NORTON AIR FORCE BASE, CALIFORNIA,
A/SLMR NO. 190.
/2/ THE PARTIES DID NOT DISPUTE THAT FPO'S ARE GUARDS WITHIN THE
MEANING OF THE ORDER. IN THIS REGARD, CF. GENERAL SERVICES
ADMINISTRATION, REGION 2, NEW YORK, NEW YORK, A/SLMR NO. 220, AND
GENERAL SERVICES ADMINISTRATION, REGION 9, SAN FRANCISCO, CALIFORNIA,
A/SLMR NO. 333.
/3/ A FACILITY IN HARRISBURG, PENNSYLVANIA FORMERLY CONSTITUTED A
SEPARATE FIELD OFFICE, BUT CURRENTLY IS UNDER THE JURISDICTION OF ONE OF
THE PHILADELPHIA FIELD OFFICES.
/4/ IN THE PITTSBURGH AND PHILADELPHIA UNITS THERE EXIST CURRENT
NEGOTIATED AGREEMENTS WHICH WOULD CONSTITUTE AGREEMENT BARS.
/5/ CF. GENERAL SERVICES ADMINISTRATION, REGION 5, CHICAGO, ILLINOIS,
A/SLMR NO. 265.
/6/ IN A/SLMR NO. 45, THE ASSISTANT SECRETARY STATED, IN PART, THAT
"SECTIONS 10(B)(3) AND 10(C) OF EXECUTIVE ORDER 11491 CLEARLY REFLECT
THE VIEW THAT APPROPRIATE UNITS SHOULD NOT BE COMPOSED OF MIXTURES OF
GUARDS AND NON-GUARDS AND THAT NON-GUARD LABOR ORGANIZATIONS SHOULD NOT
REPRESENT GUARDS. IN VIEW OF THIS CLEAR MANDATE, I FIND THAT DESPITE A
HISTORY OF REPRESENTATION IN A COMBINED UNIT, SEVERANCE OF THAT GUARD
EMPLOYEES FROM THE UNIT REPRESENTED CURRENTLY BY THE INTERVENOR IS NOT
PRECLUDED BY MY PREVIOUSLY ANNOUNCED POLICY IN U.S. NAVAL CONSTRUCTION
BATTALION CENTER, CITED ABOVE." (FOOTNOTES OMITTED) SEE ALSO, IN THIS
REGARD, DEFENSE SUPPLY AGENCY, DEFENSE DEPOT, MEMPHIS, TENNESSEE, A/SLMR
NO. 107; GENERAL SERVICES ADMINISTRATION, REGION 2, NEW YORK, NEW YORK,
CITED ABOVE; AND GENERAL SERVICES ADMINISTRATION, REGION 9, SAN
FRANCISCO, CALIFORNIA, CITED ABOVE.
/7/ IF, ON THE OTHER HAND, THE MAJORITY OF THE EMPLOYEES IN VOTING
GROUP (A) VOTES FOR THE IFFP, THE LABOR ORGANIZATION WHICH, IN EFFECT,
IS SEEKING TO REPRESENT A RESIDUAL AREA-WIDE UNIT OF FPO'S, SUCH VOTES
WILL BE POOLED WITH THOSE IN VOTING GROUP (B) WITH THE VOTES FOR THE
IFFP BEING ACCORDED THEIR FACE VALUE AND THE VOTES AGAINST SEVERANCE
FROM THE MIXED UNIT BEING COUNTED AS PART OF THE TOTAL NUMBER OF VALID
VOTES CAST BUT NEITHER FOR NOR AGAINST THE IFFP. CF. DEPARTMENT OF THE
NAVY, ALAMEDA NAVAL AIR STATION, A/SLMR NO. 6 AND GENERAL SERVICES
ADMINISTRATION, REGION 9, SAN FRANCISCO, CALIFORNIA, CITED ABOVE, AT
FOOTNOTE 11.
4 A/SLMR 346; P. 96; CASE NO. 41-3378(RO); JANUARY 25, 1974.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION, MEMPHIS
MILLINGTON, TENNESSEE
A/SLMR NO. 346
THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R5-66 (NAGE), SOUGHT AN ELECTION IN A UNIT COMPOSED OF ALL
NONSUPERVISORY CIVILIAN EMPLOYEES. THE ACTIVITY AND THE INTERVENOR,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2172 (AFGE), WERE IN
ESSENTIAL AGREEMENT THAT THE UNIT WAS APPROPRIATE BUT CONTENDED THAT THE
PETITION SHOULD BE DISMISSED ON THE BASIS THAT AN AGREEMENT BAR EXISTED
AT THE TIME OF FILING. THE ACTIVITY AND THE AFGE FURTHER CONTENDED THAT
THE NAGE HAD NOT SUBMITTED TO THE AGENCY A ROSTER OF ITS OFFICERS AND
REPRESENTATIVES, A COPY OF ITS CONSTITUTION AND BY-LAWS AND A STATEMENT
OF ITS OBJECTIVES, AND THEREFORE WAS NOT IN COMPLIANCE WITH SECTION 7(B)
OF THE ORDER AND SECTION 202.2(A)(6) OF THE ASSISTANT SECRETARY'S
REGULATIONS.
UNDER ALL OF THE CIRCUMSTANCES, THE ASSISTANT SECRETARY FOUND THAT
THE PETITION HEREIN WAS FILED TIMELY. IN REACHING THIS DETERMINATION
THE ASSISTANT SECRETARY FOUND THAT THE "UNTIMELINESS" OF THE PETITION
WAS ATTRIBUTABLE, NOT TO ANY GROSS LAXITY ON THE PART OF THE NAGE, BUT
TO OTHER FACTORS BEYOND THE NAGE'S CONTROL INCLUDING THE MISDIRECTION OF
THE PETITION BY THE U.S. POSTAL SERVICE TO ANOTHER FEDERAL ACTIVITY. IN
THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT IT WAS
MANIFEST THAT DISMISSAL OF THE NAGE'S PETITION ON THE BASIS OF
UNTIMELINESS WOULD NOT EFFECTUATE THE PURPOSES AND POLICIES OF THE
ORDER. ACCORDINGLY, HE FOUND THAT THE NAGE'S PETITION WAS FILED TIMELY.
NOTING (1) THE LACK OF ANY SPECIFIC REQUIREMENT IN THE ASSISTANT
SECRETARY'S REGULATIONS REQUIRING THAT, UPON THE FILING OF A PETITION, A
PETITIONER MUST SERVE SIMULTANEOUSLY ON AN ACTIVITY A CURRENT ROSTER OF
ITS OFFICERS AND REPRESENTATIVES, A COPY OF ITS CONSTITUTION AND
BY-LAWS, AND A STATEMENT OF ITS OBJECTIVES; (2) THE FACT THAT SUCH
DOCUMENTS WERE ADMITTEDLY SERVED ON THE ACTIVITY HEREIN; AND (3) THE
ABSENCE OF ANY EVIDENCE OF PREJUDICE TO THE PARTIES, THE ASSISTANT
SECRETARY CONCLUDED THAT DISMISSAL OF THE SUBJECT PETITION BASED ON
ALLEGED NONCOMPLIANCE WITH SECTION 7(B) OF THE ORDER AND SECTION
202.2(A)(6) OF THE ASSISTANT SECRETARY'S REGULATIONS WAS UNWARRANTED.
ACCORDINGLY, 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 HAD A LONG
COLLECTIVE-BARGAINING HISTORY, THE ASSISTANT SECRETARY CONCLUDED THAT
THE CLAIMED UNIT WAS APPROPRIATE FOR THE PURPOSE OF EXCLUSIVE
REPRESENTATION WITHIN THE MEANING OF SECTION 10 OF THE ORDER. HE,
THEREFORE, DIRECTED AN ELECTION IN THE UNIT FOUND APPROPRIATE.
DEPARTMENT OF THE NAVY,
NAVAL AIR STATION, MEMPHIS
MILLINGTON, TENNESSEE
AND
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-66
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2172
THIS MATTER IS BEFORE THE ASSISTANT SECRETARY PURSUANT TO ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES LEM R. BRIDGES' ORDER
TRANSFERRING CASE TO THE ASSISTANT SECRETARY OF LABOR PURSUANT TO
SECTION 206.5(A) OF THE ASSISTANT SECRETARY'S REGULATIONS.
UPON THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES'
STIPULATIONS OF FACT, ACCOMPANYING EXHIBITS AND BRIEFS FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2172, HEREIN CALLED
AFGE, AND THE ACTIVITY, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATIONS INVOLVED CLAIM TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE PETITIONER, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R5-66, HEREIN CALLED THE NAGE, SEEKS AN ELECTION IN A UNIT OF ALL
NONSUPERVISORY CIVILIAN EMPLOYEES AT THE NAVAL AIR STATION, MEMPHIS,
MILLINGTON, TENNESSEE, EXCLUDING MANAGEMENT EXECUTIVES, EMPLOYEES
ENGAGED IN FEDERAL PERSONNEL WORK IN OTHER THAN A PURELY CLERICAL
POSITION, SUPERVISORY EMPLOYEES WHO OFFICIALLY EVALUATE THE PERFORMANCE
OF OTHER EMPLOYEES, AND PROFESSIONAL EMPLOYEES.
THE PARTIES ARE IN ESSENTIAL AGREEMENT AS TO THE APPROPRIATENESS OF
THE CLAIMED UNIT AND THE PROPOSED EXCLUSIONS. HOWEVER, THE ACTIVITY AND
THE AFGE CONTEND THAT THE PETITION SHOULD BE DISMISSED ON THE BASIS THAT
AN AGREEMENT BAR EXISTED AT THE TIME OF FILING. ADDITIONALLY, THE
ACTIVITY AND THE AFGE CONTEND THAT THE NAGE HAD NOT SUBMITTED TO THE
AGENCY A ROSTER OF ITS OFFICERS AND REPRESENTATIVES, A COPY OF ITS
CONSTITUTION AND BY-LAWS, AND A STATEMENT OF ITS OBJECTIVES IN
ACCORDANCE WITH SECTION 7(B) OF THE ORDER. MOREOVER, THEY ASSERT THAT
NAGE'S FAILURE TO SUBMIT THE AFOREMENTIONED MATERIALS CONSTITUTES
NONCOMPLIANCE WITH SECTION 202.2(A)(6) OF THE ASSISTANT SECRETARY'S
REGULATIONS. /1/
ALLEGED AGREEMENT BAR
THE ACTIVITY AND THE AFGE CLAIM THAT THE NAGE'S PETITION WAS FILED
UNTIMELY IN THAT IT WAS NOT FILED DURING THE "OPEN PERIOD" PROVIDED FOR
IN SECTION 202.3(C) OF THE ASSISTANT SECRETARY'S REGULATIONS. /2/
THE RECORD REVEALS THAT SINCE JUNE 25, 1963, THE AFGE HAS BEEN THE
EXCLUSIVE REPRESENTATIVE OF THE EMPLOYEES IN THE CLAIMED UNIT AND THAT
THERE HAVE BEEN FIVE NEGOTIATED AGREEMENTS COVERING SUCH EMPLOYEES. THE
MOST RECENT AGREEMENT WAS EXECUTED ON JUNE 23, 1971, BECAME EFFECTIVE ON
SEPTEMBER 7, 1971, AND WAS TO EXPIRE ON SEPTEMBER 6, 1973.
ON JULY 9, 1973, THE SUBJECT PETITION WAS DOCKETED BY THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION (LMSA) AREA ADMINISTRATOR IN
NASHVILLE, TENNESSEE. THE ENVELOPE CONTAINING THE PETITION WAS
POSTMARKED DATED "7-2-73" AND ADDRESSED TO "AREA ADMINISTRATOR,
DEPARTMENT OF LABOR, LABOR-MANAGEMENT SERVICES ADMINISTRATION, 786 U.S.
COURTHOUSE BLDG., 801 BROADWAY, NASHVILLE, TENNESSEE, 37203." /3/ ON
NOTING THE ERRONEOUS ADDRESS, THE U.S. POSTAL SERVICE APPARENTLY
FORWARDED THE UNOPENED ENVELOPE AND ITS CONTENTS TO "1600 HAYES ST." IN
NASHVILLE, THE ADDRESS OF THE OFFICE OF THE OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION (OSHA). AN UNIDENTIFIED EMPLOYEE OF OSHA
CONTACTED THE LMSA NASHVILLE AREA OFFICE ON JULY 6, 1973, AND ADVISED
THAT OSHA WAS IN RECEIPT OF MAIL FOR LMSA NASHVILLE AREA OFFICE. THE
MAIL THEN WAS FORWARDED TO THE LMSA NASHVILLE AREA OFFICE.
SUBSEQUENTLY, THE ORIGINAL ENVELOPE AND ITS CONTENTS WERE RECEIVED BY
THE LMSA NASHVILLE AREA OFFICE ON JULY 9, 1973, AND, AS NOTED ABOVE, THE
INSTANT PETITION WAS DOCKETED BY THE LMSA AREA ADMINISTRATOR ON THAT
SAME DATE. /4/
ON JULY 26, 1973, A NOTICE OF PETITION WAS POSTED BY THE ACTIVITY AND
ON THE SAME DATE THE AFGE REQUESTED INTERVENTION IN THE SUBJECT
PROCEEDINGS. /5/ IN A LETTER DATED AUGUST 6, 1973, TO THE LMSA AREA
ADMINISTRATOR, THE ACTIVITY OBJECTED TO THE NAGE'S PETITION CLAIMING
THAT THE PETITION WAS FILED UNTIMELY AND THAT THE NAGE HAD NOT COMPLIED
WITH SECTION 7(B) OF THE EXECUTIVE ORDER AND SECTION 202.2(A)(6) OF THE
ASSISTANT SECRETARY'S REGULATIONS. /6/
IN A LETTER TO THE PARTIES DATED SEPTEMBER 5, 1973, THE ACTING
ASSISTANT REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES STATED THAT,
IN HIS VIEW, THE PETITION HEREIN WAS NOT FILED UNTIMELY. HE NOTED THAT
THE ORIGINAL PETITION WAS ADDRESSED TO THE LMSA AREA OFFICE IN NASHVILLE
AT ITS FORMER ADDRESS AND WAS MISDIRECTED TO ANOTHER AGENCY, WHERE IT
WAS RECEIVED TIMELY. UNDER THESE CIRCUMSTANCES, THE ACTING ASSISTANT
REGIONAL DIRECTOR FOR LABOR-MANAGEMENT SERVICES DID NOT ATTRIBUTE ANY
UNTIMELINESS TO ANY GROSS LAXITY ON THE PART OF THE NAGE, BUT TO OTHER
FACTORS BEYOND THE NAGE'S CONTROL.
THE ACTIVITY, ON THE OTHER HAND, CONTENDS THAT THE NAGE MUST SHARE A
SUBSTANTIAL BURDEN FOR THE FAILURE OF THE PETITION TO HAVE BEEN FILED
TIMELY IN ACCORDANCE WITH THE REGULATIONS. IT POINTS TO THE FACT THAT
THE ASSISTANT SECRETARY'S REGULATIONS, PUBLISHED SEPTEMBER 15, 1972,
INCLUDED THE CURRENT ADDRESS OF THE LMSA NASHVILLE AREA OFFICE AS WELL
AS THE PROPER METHOD FOR THE FILING OF PETITIONS.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE PETITION HEREIN WAS
FILED TIMELY. THUS, AS NOTED ABOVE, IT IS UNDISPUTED THAT THE INITIAL
PETITION WAS POSTMARKED DATED JULY 2, 1973. IN THIS REGARD, IT IS CLEAR
THAT THE NAGE WAS REASONABLE IN BELIEVING THAT SUCH PETITION WOULD REACH
THE LMSA NASHVILLE AREA OFFICE PRIOR TO THE LAST DATE OF THE "OPEN
PERIOD," JULY 6, 1973. AS TO THE MISDIRECTION OF THE NAGE'S PETITION,
THE EVIDENCE REVEALS THAT THE PETITION WAS SENT BY CERTIFIED MAIL TO THE
PRIOR ADDRESS OF THE LMSA NASHVILLE AREA OFFICE AND WAS THEREAFTER
APPARENTLY MISDIRECTED BY THE U.S. POSTAL SERVICE TO ANOTHER FEDERAL
ACTIVITY WHERE IT WAS RECEIVED ON JULY 6, 1973, STILL WITHIN THE "OPEN
PERIOD." SUBSEQUENTLY, THE PETITION WAS FORWARDED TO THE LMSA NASHVILLE
AREA OFFICE, WHERE IT WAS RECEIVED AND DOCKETED ON JULY 9, 1973. IN MY
VIEW, THE "UNTIMELINESS" OF THE PETITION WAS ATTRIBUTABLE NOT TO ANY
GROSS LAXITY ON THE PART OF THE NAGE, BUT TO OTHER FACTORS BEYOND THE
NAGE'S CONTROL, INCLUDING THE MISDIRECTION OF THE PETITION BY THE U.S.
POSTAL SERVICE TO ANOTHER FEDERAL ACTIVITY. UNDER THESE CIRCUMSTANCES,
IT IS MANIFEST THAT DISMISSAL OF THE NAGE'S PETITION ON THE BASIS OF
UNTIMELINESS WOULD WORK AN INJUSTICE AND WOULD NOT EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER. ACCORDINGLY, I FIND THAT THE NAGE'S
PETITION HEREIN WAS FILED TIMELY.
OTHER PROCEDURAL MATTERS
AS NOTED ABOVE, THE ACTIVITY AND THE AFGE CONTEND THAT THE NAGE HAD
NOT COMPLIED WITH SECTION 7(B) OF THE ORDER AND SECTION 202.2(A)(6) OF
THE ASSISTANT SECRETARY'S REGULATIONS.
WHILE THERE EXISTS SOME DISPUTE AS TO WHETHER OR NOT THE NAGE, UPON
FILING ITS PETITION, SIMULTANEOUSLY SUBMITTED TO THE ACTIVITY A CURRENT
ROSTER OF ITS OFFICERS AND REPRESENTATIVES, A COPY OF ITS CONSTITUTION
AND BY-LAWS, AND A STATEMENT OF ITS OBJECTIVES, IT IS UNDISPUTED THAT
SUCH DOCUMENTS WERE RECEIVED BY THE ACTIVITY ON OR ABOUT AUGUST 30,
1973. UNDER THESE CIRCUMSTANCES, AND NOTING THE LACK OF ANY SPECIFIC
REQUIREMENT IN THE ASSISTANT SECRETARY'S REGULATIONS THAT SUCH DOCUMENTS
BE SERVED SIMULTANEOUSLY WITH THE FILING OF A PETITION AND THE ABSENCE
OF ANY EVIDENCE OF PREJUDICE TO ANY PARTY HEREIN, I FIND THAT DISMISSAL
OF THE SUBJECT PETITION BASED ON ALLEGED NONCOMPLIANCE WITH SECTION 7(B)
OF THE ORDER AND SECTION 202.2(A)(6) OF THE ASSISTANT SECRETARY'S
REGULATIONS TO BE UNWARRANTED.
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
HAD A LONG COLLECTIVE-BARGAINING HISTORY, 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 EMPLOYEES EMPLOYED AT THE NAVAL AIR STATION, MEMPHIS,
MILLINGTON, TENNESSEE,
EXCLUDING PROFESSIONAL EMPLOYEES, EMPLOYEES ENGAGED IN FEDERAL
PERSONNEL WORK IN OTHER THAN A
PURELY CLERICAL CAPACITY, MANAGEMENT OFFICIALS, AND SUPERVISORS /7/
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 THEY DESIRE TO BE
REPRESENTED FOR THE PURPOSE OF EXCLUSIVE RECOGNITION BY THE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-66; THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2172; OR NEITHER.
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ SECTION 202.2(A)(6) PROVIDES THAT A PETITION BY A LABOR
ORGANIZATION FOR EXCLUSIVE RECOGNITION SHALL CONTAIN THE FOLLOWING: "A
STATEMENT THAT THE PETITIONER HAS SUBMITTED TO THE ACTIVITY A CURRENT
ROSTER OF ITS OFFICERS AND REPRESENTATIVES, A COPY OF ITS CONSTITUTION
AND BYLAWS, AND A STATEMENT OF ITS OBJECTIVES;"
/2/ SECTION 202.3(C) PROVIDES, IN PERTINENT PART: "WHEN AN AGREEMENT
COVERING A CLAIMED UNIT HAS BEEN SIGNED BY THE ACTIVITY AND THE
INCUMBENT EXCLUSIVE REPRESENTATIVE, A PETITION FOR EXCLUSIVE RECOGNITION
OR OTHER ELECTION PETITION FOR EXCLUSIVE RECOGNITION OR OTHER ELECTION
PETITION WILL BE CONSIDERED TIMELY WHEN FILED AS FOLLOWS: (1) NOT MORE
THAN NINETY (90) DAYS NOR 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; . . . ."
/3/ THIS WAS A PRIOR ADDRESS OF THE LMSA AREA OFFICE IN NASHVILLE.
THE LMSA NASHVILLE AREA OFFICE HAD MOVED FROM THIS ADDRESS IN THE SPRING
OF 1972.
/4/ THE PETITION SUBSEQUENTLY WAS AMENDED BY THE NAGE ON JULY 13,
1973.
/5/ ON JULY 12, 1973, THE AFGE HAD REQUESTED THAT RENEGOTIATIONS
COMMENCE AND, SUBSEQUENTLY, A NEW AGREEMENT WAS CONCLUDED BY THE PARTIES
ON JULY 17, 1973, AND BECAME EFFECTIVE, UPON APPROVAL OF THE OFFICE OF
CIVILIAN MANPOWER MANAGEMENT, ON AUGUST 20, 1973.
/6/ PREVIOUSLY, ON JULY 26, 1973, THE AFGE HAD FILED SIMILAR
OBJECTIONS TO THE NAGE'S PETITION.
/7/ AS NOTED ABOVE, THE NAGE SOUGHT TO EXCLUDE FROM THE UNIT
"SUPERVISORY EMPLOYEES WHO OFFICIALLY EVALUATE THE PERFORMANCE OF OTHER
EMPLOYEES." I VIEW SUCH A LIMITED DEFINITION TO BE INAPPROPRIATE AND,
THEREFORE, WILL EXCLUDE FROM THE UNIT ALL SUPERVISORY EMPLOYEES WITHIN
THE MEANING OF SECTION 2(C) OF THE ORDER.
4 A/SLMR 345; P. 94; CASE NO. 22-3949(RO); JANUARY 25, 1974.
ARMY AVIATION SUPPORT FACILITY,
VIRGINIA NATIONAL GUARD
A/SLMR NO. 345
THIS CASE INVOLVED A REPRESENTATION PETITION IN WHICH THE ASSOCIATION
OF CIVILIAN TECHNICIANS, INCORPORATED (ACT) SOUGHT A UNIT OF ALL WAGE
GRADE AND GENERAL SCHEDULE FEDERAL TECHNICIAN EMPLOYEES OF THE ARMY
AVIATION SUPPORT FACILITY LOCATED AT RICHARD E. BYRD INTERNATIONAL
AIRPORT, SANDSTON, VIRGINIA.
THE ASSISTANT SECRETARY FOUND THAT THE UNIT SOUGHT WAS APPROPRIATE
FOR THE PURPOSE OF EXCLUSIVE RECOGNITION. IN REACHING THIS
DETERMINATION, HE NOTED THAT THE ACTIVITY OPERATES INDEPENDENTLY OF
OTHER ORGANIZATIONS LOCATED AT BYRD INTERNATIONAL AIRPORT; IS SEPARATED
FROM OTHER VIRGINIA ARMY NATIONAL GUARD UNITS; AND PERFORMS A UNIQUE
FUNCTION NOT PERFORMED ANYWHERE ELSE IN THE VIRGINIA ARMY NATIONAL
GUARD. MOREOVER, HE FOUND THAT TRANSFER OR INTERCHANGE BETWEEN THE
EMPLOYEES IN THE CLAIMED UNIT AND OTHER VIRGINIA ARMY NATIONAL GUARD
EMPLOYEES IS MINIMAL AND THAT ALL OF THE CLAIMED EMPLOYEES WORK IN THE
SAME GEOGRAPHIC AREA, ARE IN THE SAME AREA OF CONSIDERATION FOR PURPOSES
OF REDUCTION-IN-FORCE ACTIONS, ARE UNDER THE SAME TECHNICIANS PERSONNEL
OFFICE, AND HAVE LIMITED CONTACT WITH EMPLOYEES OF OTHER VIRGINIA ARMY
NATIONAL GUARD UNITS.
IN THESE CIRCUMSTANCES, THE ASSISTANT SECRETARY CONCLUDED THAT THE
EMPLOYEES IN THE PETITIONED FOR UNIT SHARED A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST AND THAT SUCH A UNIT WOULD PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, THE
ASSISTANT SECRETARY DIRECTED AN ELECTION IN THE UNIT APPROPRIATE.
ARMY AVIATION SUPPORT FACILITY,
VIRGINIA NATIONAL GUARD
AND
ASSOCIATION OF CIVILIAN TECHNICIANS,
INCORPORATED (ACT)
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER ANNA B. BOSWELL.
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 FILED BY THE
PETITIONER, ASSOCIATION OF CIVILIAN TECHNICIANS, INCORPORATED (ACT),
HEREIN CALLED ACT, THE ASSISTANT SECRETARY FINDS:
1. THE LABOR ORGANIZATION INVOLVED CLAIMS TO REPRESENT CERTAIN
EMPLOYEES OF THE ACTIVITY.
2. THE ACT SEEKS AN ELECTION IN A UNIT OF ALL WAGE GRADE AND GENERAL
SCHEDULE FEDERAL TECHNICIAN EMPLOYEES OF THE ARMY AVIATION SUPPORT
FACILITY LOCATED AT RICHARD E. BYRD INTERNATIONAL AIRPORT, SANDSTON,
VIRGINIA, 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. THE
ACTIVITY TAKES THE POSITION THAT THE UNIT SOUGHT BY THE ACT IS
INAPPROPRIATE INASMUCH AS THE CLAIMED EMPLOYEES SHARE THE SAME MISSION,
ARE COVERED BY THE SAME PERSONNEL POLICIES, PRACTICES, AND PROCEDURES,
AND HAVE THE SAME OVERALL SUPERVISION AS ALL EMPLOYEES OF THE VIRGINIA
ARMY NATIONAL GUARD. UNDER THESE CIRCUMSTANCES, THE ACTIVITY ASSERTS
THAT THE ONLY APPROPRIATE UNIT WOULD BE A RESIDUAL UNIT OF ALL
UNREPRESENTED EMPLOYEES IN THE VIRGINIA ARMY NATIONAL GUARD.
THE MISSION OF THE VIRGINIA ARMY NATIONAL GUARD IS TO PROVIDE A
COMBAT-READY FORCE WHERE NEEDED FOR THE NATIONAL DEFENSE AND, AT OTHER
TIMES, TO SERVE UNDER THE GOVERNOR OF VIRGINIA IN THE EVENT OF A STATE
EMERGENCY. THE ADJUTANT GENERAL OF THE STATE OF VIRGINIA HAS OVERALL
ADMINISTRATIVE CONTROL AND SUPERVISION OF ALL ACTIVITIES WITHIN THE
VIRGINIA ARMY NATIONAL GUARD. IN THIS REGARD, 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 GRIEVANCE. THE TECHNICIANS' PERSONNEL OFFICE OPERATES ON A
CENTRALIZED BASIS, PERFORMING THE ADMINISTRATIVE AND PERSONNEL
FUNCTIONS, INCLUDING LABOR-MANAGEMENT RELATIONS FUNCTIONS, FOR THE
ADJUTANT GENERAL. /1/ THERE ARE APPROXIMATELY 530 TECHNICIANS EMPLOYED
IN THE VIRGINIA ARMY NATIONAL GUARD. /2/
THE ACTIVITY IS LOCATED ON 95 ACRES IN THE SOUTHEAST CORNER OF THE
RICHARD E. BYRD INTERNATIONAL AIRPORT, SANDSTON, VIRGINIA. /3/ OVERALL
RESPONSIBILITY FOR THE ACTIVITY'S OPERATIONS LIES WITH ITS COMMANDER WHO
DIRECTS THE APPROXIMATELY 36 PETITIONED FOR TECHNICIANS. THE PARTICULAR
MISSION OF THE ACTIVITY IS TO ADMINISTER ALL RECORDS PERTAINING TO ARMY
AVIATION IN THE MAINTENANCE AND FLIGHT AREAS AND TO PERFORM MAINTENANCE
ON ALL AIRCRAFT ASSIGNED TO VARIOUS UNITS IN THE VIRGINIA ARMY NATIONAL
GUARD. THE RECORD DISCLOSES THAT AIRCRAFT MAINTENANCE WORK PERFORMED BY
EMPLOYEES IN THE CLAIMED UNIT IS NOT PERFORMED AT ANY OTHER FACILITY IN
THE VIRGINIA ARMY NATIONAL GUARD. FURTHER, THE COMMAND RELATIONSHIP OF
THE ACTIVITY IS SEPARATE AND DISTINCT FROM OTHER VIRGINIA ARMY NATIONAL
GUARD UNITS.
TECHNICIANS EMPLOYED AT THE ACTIVITY AND TECHNICIANS EMPLOYED IN
OTHER VIRGINIA ARMY NATIONAL GUARD UNITS DO NOT WORK TOGETHER AND HAVE
NO IMMEDIATE COMMON SUPERVISION. THE JOB DESCRIPTIONS FOR THE CLAIMED
TECHNICIANS EMPLOYED AT THE ACTIVITY WHICH PERTAIN MAINLY TO AIRCRAFT
MAINTENANCE ARE DIFFERENT (WITH THE EXCEPTION OF POSSIBLY A FEW
ADMINISTRATIVE POSITIONS) FROM THE JOB DESCRIPTIONS OF TECHNICIANS
EMPLOYED IN OTHER UNITS OF THE VIRGINIA ARMY NATIONAL GUARD. AND
ALTHOUGH UNDER THE VIRGINIA ARMY NATIONAL GUARD PROMOTION PROGRAM THE
AREAS OF CONSIDERATION ARE STATEWIDE AND FINAL SELECTION IS MADE BY THE
ADJUTANT GENERAL, THE RECORD SHOWS THAT THE ACTIVITY'S COMMANDER HAS
BEEN DESIGNATED AS THE NOMINATING OFFICER FOR ALL VACANCIES OCCURRING AT
THE ACTIVITY. MOREOVER, FOR PURPOSES OF REDUCTION-IN-FORCE ACTIONS THE
TECHNICIANS EMPLOYED AT THE ACTIVITY HAVE A SEPARATE COMPETITIVE AREA.
THE EVIDENCE ESTABLISHES FURTHER THAT THE INCIDENCE OF TRANSFER OR
INTERCHANGE INVOLVING THE CLAIMED EMPLOYEES TO OTHER VIRGINIA ARMY
NATIONAL GUARD UNITS HAS BEEN MINIMAL AND THAT THEIR CONTACT WITH OTHER
VIRGINIA ARMY NATIONAL GUARD UNITS IS INFREQUENT.
BASED ON THE FOREGOING, I FIND THE UNIT SOUGHT IS APPROPRIATE FOR THE
PURPOSE OF EXCLUSIVE RECOGNITION UNDER THE ORDER. IN THIS CONNECTION,
THE FOLLOWING FACTORS WERE NOTED PARTICULARLY: THE ACTIVITY OPERATES
INDEPENDENTLY OF OTHER ORGANIZATIONS LOCATED AT BYRD INTERNATIONAL
AIRPORT; IS SEPARATED FROM OTHER VIRGINIA ARMY NATIONAL GUARD UNITS;
AND PERFORMS A UNIQUE FUNCTION NOT PERFORMED ANYWHERE ELSE IN THE
VIRGINIA ARMY NATIONAL GUARD. MOREOVER, TRANSFER OR INTERCHANGE OF
EMPLOYEES BETWEEN THE EMPLOYEES IN THE CLAIMED UNIT AND OTHER VIRGINIA
ARMY NATIONAL GUARD EMPLOYEES IS MINIMAL AND ALL OF THE CLAIMED
EMPLOYEES WORK IN THE SAME GEOGRAPHIC AREA, ARE IN THE SAME AREA OF
CONSIDERATION FOR PURPOSES OF REDUCTION-TO-FORCE ACTIONS, ARE UNDER THE
JURISDICTION OF THE SAME TECHNICIANS' PERSONNEL OFFICE, AND HAVE LIMITED
CONTACT WITH EMPLOYEES OF OTHER VIRGINIA ARMY NATIONAL GUARD UNITS.
UNDER THESE 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.
ACCORDINGLY, 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 WAGE GRADE AND GENERAL SCHEDULE FEDERAL TECHNICIAN EMPLOYEES OF
THE ARMY AVIATION
SUPPORT FACILITY LOCATED AT RICHARD E. BYRD INTERNATIONAL AIRPORT,
SANDSTON, VIRGINIA,
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 THE
ASSOCIATION OF CIVILIAN TECHNICIANS, INCORPORATED (ACT).
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ THE TECHNICIANS' PERSONNEL OFFICE PERFORMS PERSONNEL
ADMINISTRATION WITH RESPECT TO BOTH VIRGINIA ARMY AND AIR NATIONAL GUARD
PERSONNEL. IN THIS CONNECTION, IT MAINTAINS ALL OF THE TECHNICIANS'
PERSONNEL FILES, AND ALL OFFICIAL PERSONNEL ACTIONS EMANATE FROM THAT
OFFICE.
/2/ APPROXIMATELY 124 OF THESE TECHNICIANS ARE REPRESENTED
EXCLUSIVELY IN TWO SEPARATE BARGAINING UNITS-- THE COMBINED MAINTENANCE
SHOP AND ANNUAL EQUIPMENT POOL-- BY THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES.
/3/ THE ONLY OTHER VIRGINIA ARMY NATIONAL GUARD UNIT LOCATED AT BYRD
INTERNATIONAL AIRPORT IS THE 224TH FIELD ARTILLERY GROUP. ALSO, THE
VIRGINIA AIR NATIONAL GUARD UNIT IS LOCATED AT BYRD INTERNATIONAL
AIRPORT.
4 A/SLMR 344; P. 91; CASE NO. 42-2301(RO); JANUARY 25, 1974.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA
A/SLMR NO. 344
THIS CASE AROSE AS THE RESULT OF A PETITION FILED BY THE NATIONAL
ASSOCIATION OF GOVERNMENT INSPECTORS AND QUALITY ASSURANCE PERSONNEL,
UNIT NO. 1 (PETITIONER), SEEKING A UNIT OF ALL PROFESSIONAL EMPLOYEES
(ENGINEERS) OF THE QUALITY AND RELIABILITY ASSURANCE DEPARTMENT OF THE
ACTIVITY.
THE ACTIVITY TOOK THE POSITION THAT THE EMPLOYEES IN THE PETITIONED
FOR UNIT DO NOT SHARE A COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM
OTHER PROFESSIONAL EMPLOYEES OF THE ACTIVITY, AND THAT SUCH A UNIT WOULD
NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. THE
PETITIONER, ON THE OTHER HAND, CONTENDED THAT THE EMPLOYEES IN THE UNIT
SOUGHT, TOGETHER WITH THE NONPROFESSIONAL QUALITY ASSURANCE SPECIALISTS
IN THE QUALITY AND RELIABILITY ASSURANCE DEPARTMENT (WHO ALREADY WERE
REPRESENTED IN A SEPARATE UNIT BY THE PETITIONER), SHARED A CLEAR AND
IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND DISTINCT FROM ALL OTHER
EMPLOYEES OF THE ACTIVITY.
THE ASSISTANT SECRETARY CONCLUDED THAT THE PROFESSIONAL ENGINEERS IN
THE PETITIONED FOR UNIT DID NOT SHARE A COMMUNITY OF INTEREST SEPARATE
AND APART FROM OTHER PROFESSIONAL ENGINEERS OF THE ACTIVITY. IN
REACHING THIS CONCLUSION, HE NOTED THAT THE CLAIMED EMPLOYEES AND THE
PROFESSIONAL ENGINEERS IN THE WEAPONS ENGINEERING DEPARTMENT AND IN THE
PRODUCTION ENGINEERING DEPARTMENT WERE SUBJECT TO THE SAME PERSONNEL
POLICIES AND PROCEDURES; WERE WITHIN THE SAME AREA OF CONSIDERATION FOR
PROMOTION AND REDUCTION-IN-FORCE ACTIONS; ENJOYED SIMILAR JOB
CLASSIFICATIONS; PERFORMED SUBSTANTIALLY SIMILAR JOB FUNCTIONS; AND
WORKED TOGETHER CLOSELY IN ACHIEVING THEIR INDIVIDUAL MISSIONS AS WELL
AS THE OVERALL MISSION OF THE ACTIVITY. ACCORDINGLY, AND NOTING ALSO
THAT, IN HIS VIEW, SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS, THE ASSISTANT SECRETARY
ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF THE NAVY,
NAVAL AIR REWORK FACILITY,
JACKSONVILLE, FLORIDA
AND
NATIONAL ASSOCIATION OF
GOVERNMENT INSPECTORS AND
QUALITY ASSURANCE PERSONNEL,
UNIT NO. 1,
JACKSONVILLE, FLORIDA
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.
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, THE NATIONAL ASSOCIATION OF GOVERNMENT INSPECTORS
AND QUALITY ASSURANCE PERSONNEL, UNIT NO. 1, SEEKS AN ELECTION IN A UNIT
CONSISTING OF ALL PROFESSIONAL EMPLOYEES OF THE QUALITY AND RELIABILITY
ASSURANCE DEPARTMENT OF THE NAVAL AIR REWORK FACILITY, NAVAL AIR
STATION, JACKSONVILLE, FLORIDA, EXCLUDING ALL NONPROFESSIONAL EMPLOYEES,
MANAGEMENT OFFICIALS, EMPLOYEES ENGAGED IN FEDERAL PERSONNEL WORK IN
OTHER THAN A PURELY CLERICAL CAPACITY, SUPERVISORS AND GUARDS AS DEFINED
IN EXECUTIVE ORDER 11491, AS AMENDED.
THE ACTIVITY TAKES THE POSITION THAT THE UNIT SOUGHT IS NOT
APPROPRIATE AS THE EMPLOYEES IN THE PETITIONED FOR UNIT DO NOT SHARE A
COMMUNITY OF INTEREST WHICH IS SEPARATE AND DISTINCT FROM THAT OF OTHER
EMPLOYEES OF THE ACTIVITY. THE ACTIVITY FURTHER ASSERTS THAT THE UNIT
SOUGHT WILL NOT PROMOTE EFFECTIVE DEALINGS AND EFFICIENCY OF AGENCY
OPERATIONS. THE PETITIONER, ON THE OTHER HAND, TAKES THE POSITION THAT
THE PROFESSIONAL EMPLOYEES SOUGHT IN THE QUALITY AND RELIABILITY
ASSURANCE DEPARTMENT, TOGETHER WITH THE NONPROFESSIONAL QUALITY
ASSURANCE SPECIALISTS IN THAT DEPARTMENT WHO ARE ALREADY REPRESENTED IN
A SEPARATE UNIT BY THE PETITIONER, SHARE A CLEAR AND IDENTIFIABLE
COMMUNITY OF INTEREST SEPARATE FROM ALL OTHER EMPLOYEES OF THE ACTIVITY.
/1/
THE ACTIVITY IS A COMPLEX, HIGHLY INTEGRATED MANUFACTURING FACILITY
CHARGED WITH THE MISSION OF PERFORMING A COMPLETE RANGE OF REWORK
OPERATIONS ON DESIGNATED WEAPONS SYSTEMS, ACCESSORIES, AND EQUIPMENT.
IN ACHIEVING THIS MISSION, THE ACTIVITY MANUFACTURES PARTS AND
ASSEMBLIES, PROVIDES ENGINEERING SERVICES IN THE DEVELOPMENT OF CHANGES
OF HARDWARE DESIGN, AND FURNISHES TECHNICAL AND OTHER PROFESSIONAL
SERVICES ON AIRCRAFT MAINTENANCE AND LOGISTIC PROBLEMS. IN ADDITION,
THE ACTIVITY PERFORMS OTHER LEVELS OF AIRCRAFT MAINTENANCE AND SUCH
OTHER FUNCTIONS AS DIRECTED BY THE NAVAL AIR SYSTEMS COMMAND.
THE ACTIVITY IS UNDER THE AUTHORITY OF A COMMANDING OFFICER AND AN
EXECUTIVE OFFICER. REPORTING DIRECTLY TO THE COMMANDING OFFICER AND
EXECUTIVE OFFICER ARE THREE OFFICERS WHO DIRECT THE MAIN ORGANIZATIONAL
COMPONENTS OF THE ACTIVITY, I.E., THE MANAGEMENT SERVICES OFFICER AND
CONTROLLER, THE ENGINEERING AND QUALITY OFFICER, AND THE PRODUCTION
OFFICER. THESE THREE MAIN ORGANIZATIONAL COMPONENTS ARE DIVIDED INTO
TWO OR MORE DEPARTMENTS, HEADED BY DEPARTMENT SUPERVISORS. A DEPARTMENT
IS SUBDIVIDED FURTHER INTO TWO OR MORE DIVISIONS HEADED BY DIVISION
CHIEFS, WITH THE DIVISIONS BEING SUBDIVIDED FURTHER INTO TWO OR MORE
BRANCHES HEADED BY BRANCH CHIEFS.
THE ACTIVITY EMPLOYS APPROXIMATELY 2700 EMPLOYEES, OF WHOM
APPROXIMATELY 35 TO 40 ARE MILITARY PERSONNEL WITH THE BALANCE BEING
CIVILIAN EMPLOYEES. OF THE CIVILIAN COMPLEMENT, APPROXIMATELY 650
EMPLOYEES ARE CLASSIFIED AS GENERAL SCHEDULE WITH THE BALANCE BEING WAGE
GRADE EMPLOYEES. THE EMPLOYEES SOUGHT BY THE PETITIONER HEREIN ARE A
GROUP OF FIVE PROFESSIONAL ENGINEERS /2/ WHO ARE ORGANIZATIONALLY
LOCATED IN THE QUALITY CONTROL ENGINEERING BRANCH. THIS BRANCH IS ONE
OF THREE BRANCHES COMPRISING THE QUALITY ENGINEERING AND ANALYSIS
DIVISION WHICH, WITH TWO OTHER DIVISIONS, COMPRISE THE QUALITY AND
RELIABILITY ASSURANCE DEPARTMENT. THE QUALITY AND RELIABILITY ASSURANCE
DEPARTMENT, ALONG WITH THE WEAPONS ENGINEERING DEPARTMENT, ARE UNDER THE
ENGINEERING AND QUALITY OFFICER.
THE QUALITY AND RELIABILITY ASSURANCE DEPARTMENT IS CHARGED WITH THE
RESPONSIBILITY OF EFFECTING THE QUALITY ASSURANCE PROGRAM FOR THE ENTIRE
ACTIVITY. IN CARRYING OUT THESE RESPONSIBILITIES, THE DIVISIONS OF THE
DEPARTMENT ARE GIVEN SEPARATE BUT RELATED RESPONSIBILITIES. THUS, THE
QUALITY MANAGEMENT DIVISION IS CONCERNED PRIMARILY WITH THE
ADMINISTRATIVE ASPECTS OF DEVELOPING AND DESIGNING THE QUALITY ASSURANCE
PROGRAM; THE QUALITY VERIFICATION DIVISION IS RESPONSIBLE FOR THE
PHYSICAL, "EYEBALL" INSPECTION OF THE VARIOUS PRODUCTS PRODUCED BY THE
PRODUCTION DEPARTMENT; AND THE QUALITY ENGINEERING AND ANALYSIS
DIVISION IS THE TECHNICAL ARM OF THE DEPARTMENT AND PROVIDES TECHNICAL
GUIDANCE AND ESTABLISHES STANDARDS FOR THE REST OF THE DEPARTMENT.
EMPLOYEES IN THE AIRCRAFT COMPONENTS ANALYSIS BRANCH AND THE AIRCRAFT
AND ENGINES ANALYSIS BRANCH OF THE QUALITY ENGINEERING AND ANALYSIS
DIVISION ARE RESPONSIBLE FOR DEVELOPING QUALITY DOCUMENTATION AND
STANDARDS FOR VERIFYING REWORK BY PRODUCTION PERSONNEL AND THEY PROVIDE
GUIDANCE TO THE QUALITY VERIFICATION DIVISION. THE EMPLOYEES IN THE
QUALITY CONTROL ENGINEERING BRANCH OF THE QUALITY ENGINEERING AND
ANALYSIS DIVISION PERFORM ENGINEERING AND TECHNICAL FUNCTIONS ASSOCIATED
WITH THE PRODUCTION PROCESS PERFORMED THROUGHOUT THE PLANT. THEY ALSO
PROVIDE TECHNICAL ASSISTANCE IN ESTABLISHING AND CONDUCTING MAINTENANCE
PROGRAMS REGARDING ALL OF THE EQUIPMENT SUBJECT TO THE ACTIVITY'S
OPERATIONS.
THE RECORD REVEALS THAT THE FIVE PROFESSIONAL ENGINEERS WHOM THE
PETITIONER SEEKS TO REPRESENT ARE THE ONLY PROFESSIONAL EMPLOYEES IN THE
QUALITY AND RELIABILITY ASSURANCE DEPARTMENT. THE BALANCE OF THE
EMPLOYEES IN THE DEPARTMENT ARE NONPROFESSIONALS, THE BULK OF WHOM ARE
CLASSIFIED AS QUALITY ASSURANCE SPECIALISTS, AND, AS NOTED ABOVE,
CURRENTLY ARE REPRESENTED BY THE PETITIONER. THE RECORD REVEALS THAT
MOST OF THE REMAINING PROFESSIONALS EMPLOYED BY THE ACTIVITY ARE FOUND
IN THE WEAPONS ENGINEERING DEPARTMENT, WHICH ALSO IS UNDER THE
ENGINEERING AND QUALITY OFFICER, AND IN THE PRODUCTION ENGINEERING
DEPARTMENT, WHICH IS RESPONSIBLE TO THE PRODUCTION OFFICER. IN THESE
ORGANIZATIONAL COMPONENTS ARE EMPLOYEES WHO ARE CLASSIFIED AS
PROFESSIONAL ENGINEERS OF VARIOUS SPECIALIZED DISCIPLINES, AS WELL AS
PHYSICAL SCIENCE PROFESSIONALS, SUCH AS METALLURGISTS AND CHEMISTS. /3/
THE PRIME FUNCTIONS CONDUCTED WITHIN THE QUALITY CONTROL ENGINEERING
BRANCH, IN WHICH THE FIVE PETITIONED FOR QUALITY ASSURANCE ENGINEERS ARE
LOCATED, ARE THE PERFORMANCE OF A "PROCESS REVIEW" AND THE CONDUCTING OF
INVESTIGATIONS INTO MAINTENANCE PROBLEMS. IN PERFORMING THESE
FUNCTIONS, A THOROUGH AND COMPLETE BACKGROUND IN ENGINEERING AND
PHYSICAL SCIENCE PRINCIPLES IS REQUIRED. THUS, A PROFESSIONAL ENGINEER
NORMALLY IS REQUIRED TO PERFORM THESE FUNCTIONS. /4/ IN PERFORMING A
PROCESS REVIEW, THE QUALITY ASSURANCE ENGINEER IS CONCERNED PRIMARILY
WITH THE FACILITIES AND EQUIPMENT, AS WELL AS THE MANUFACTURING PROCESS,
UTILIZED BY THE PRODUCTION DEPARTMENT IN PRODUCING THE VARIOUS PARTS AND
COMPONENTS. IN THIS REGARD, THE QUALITY ASSURANCE ENGINEER INTERACTS
CLOSELY WITH THE ENGINEERS OF THE PRODUCTION ENGINEERING DEPARTMENT. ON
THE OTHER HAND, WHEN CONDUCTING A MAINTENANCE INVESTIGATION, THE QUALITY
ASSURANCE ENGINEER IS PRIMARILY CONCERNED WITH THE MAINTENANCE AND
PERFORMANCE OF THE VARIOUS PARTS AND COMPONENTS AND, IN THIS REGARD,
INTERACTS CLOSELY WITH ENGINEERS IN THE WEAPONS ENGINEERING DEPARTMENT.
THE RECORD DISCLOSES THAT WHILE THE QUALITY ASSURANCE ENGINEERS WORK IN
CLOSE COOPERATION WITH A VARIETY OF PERSONNEL IN ALL OTHER DEPARTMENTS,
THE MAJORITY OF THEIR TIME IS SPENT IN INTERACTION WITH OTHER ENGINEERS
OF THE WEAPONS ENGINEERING DEPARTMENT AND THE PRODUCTION ENGINEERING
DEPARTMENT. THE EVIDENCE FURTHER ESTABLISHES THAT THE OFFICE AREA IN
WHICH THE QUALITY ENGINEERING AND ANALYSIS DIVISION IS LOCATED IN THE
MAIN BUILDING OF THE ACTIVITY, AS WELL AS IN THE ADJACENT HANGAR
BUILDING, AND THAT THE OFFICE AREAS FOR THE PROFESSIONAL EMPLOYEES
EMPLOYED IN THE WEAPONS ENGINEERING DEPARTMENT AND THE PRODUCTION
ENGINEERING DEPARTMENT ARE LOCATED IN THE MAIN BUILDING, APPROXIMATELY
100 TO 200 FEET AWAY FROM THE OFFICE AREA OF THE QUALITY ENGINEERING
ANALYSIS DIVISION. MOREOVER, ESSENTIALLY ALL OF THE EMPLOYEES OF THE
ACTIVITY ENJOY COMMON PERSONNEL POLICIES AND JOB BENEFITS, AND THE AREAS
OF CONSIDERATION FOR PROMOTION AND REDUCTION-IN-FORCE ACTIONS ARE
ACTIVITY-WIDE FOR THE ACTIVITY'S PROFESSIONAL ENGINEERS, WHEREAS THE
AREAS OF CONSIDERATION ARE DIVISION-WIDE FOR THE QUALITY ASSURANCE
SPECIALISTS.
BASED ON ALL OF THE FOREGOING CIRCUMSTANCES, I FIND THAT A UNIT
LIMITED TO THE PROFESSIONAL ENGINEERS OF THE QUALITY AND RELIABILITY
ASSURANCE DEPARTMENT OF THE ACTIVITY IS NOT APPROPRIATE FOR THE PURPOSE
OF EXCLUSIVE RECOGNITION. IN THIS REGARD, PARTICULAR NOTE WAS TAKEN OF
THE FACTS THAT THE PROFESSIONAL EMPLOYEES OF THE QUALITY AND RELIABILITY
ASSURANCE DEPARTMENT, THE PRODUCTION ENGINEERING DEPARTMENT AND THE
WEAPONS ENGINEERING DEPARTMENT ARE SUBJECT TO THE SAME PERSONNEL
POLICIES AND PROCEDURES WHICH ARE ADMINISTERED CENTRALLY; THE AREAS OF
CONSIDERATION FOR PROMOTION AND REDUCTION-IN-FORCE ACTIONS INCLUDE THE
ENGINEERS SOUGHT TO BE REPRESENTED HEREIN, AS WELL AS THE ENGINEERS IN
THE TWO OTHER ABOVE-NOTED DEPARTMENTS; THE THREE DEPARTMENTS INCLUDE
EMPLOYEES WHO ENJOY SIMILAR JOB CLASSIFICATIONS AND SUBSTANTIALLY
SIMILAR JOB FUNCTIONS; AND THE PROFESSIONAL ENGINEERS OF ALL THREE
DEPARTMENTS WORK TOGETHER CLOSELY IN ACHIEVING THEIR INDIVIDUAL
MISSIONS, AS WELL AS ACHIEVING THE COMMON OVERALL MISSION OF THE
ACTIVITY.
UNDER THESE CIRCUMSTANCES, I FIND THAT THE PROFESSIONAL ENGINEERS OF
THE QUALITY AND RELIABILITY ASSURANCE DEPARTMENT OF THE ACTIVITY DO NOT
HAVE A CLEAR AND IDENTIFIABLE COMMUNITY OF INTEREST SEPARATE AND
DISTINCT FROM OTHER PROFESSIONAL ENGINEERS LOCATED AT THE ACTIVITY.
FURTHER, IN MY VIEW, SUCH A FRAGMENTED UNIT WOULD NOT PROMOTE EFFECTIVE
DEALINGS AND EFFICIENCY OF AGENCY OPERATIONS. ACCORDINGLY, I SHALL
ORDER THAT THE PETITION HEREIN BE DISMISSED.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 42-2301(RO) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ THE RECORD REVEALS THAT CURRENTLY THERE ARE FOUR LABOR
ORGANIZATIONS HOLDING EXCLUSIVE RECOGNITION AT THE ACTIVITY IN FOUR
SEPARATE BARGAINING UNITS. THEY ARE: (1) THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, WHICH REPRESENTS A UNIT OF APPROXIMATELY 1800,
PRIMARILY WAGE GRADE, EMPLOYEES; (2) THE NATIONAL ASSOCIATION OF
PLANNERS, ESTIMATORS AND PROGRESSMEN, WHICH REPRESENTS A UNIT OF
APPROXIMATELY 75-80 EMPLOYEES; (3) THE NATIONAL ASSOCIATION OF
AERONAUTICAL EXAMINERS, WHICH REPRESENTS A UNIT OF APPROXIMATELY 40-45
EMPLOYEES; AND (4) THE PETITIONER HEREIN, WHICH CURRENTLY REPRESENTS A
UNIT OF APPROXIMATELY 80-85 NON-PROFESSIONAL QUALITY ASSURANCE
SPECIALISTS, EMPLOYED IN THE ACTIVITY'S QUALITY AND RELIABILITY
ASSURANCE DEPARTMENT.
/2/ THE PARTIES STIPULATED THAT THESE EMPLOYEES ARE PROFESSIONAL
EMPLOYEES WITHIN THE MEANING OF THE ORDER.
/3/ THE RECORD REVEALS NO PRIOR OR CURRENT BARGAINING HISTORY WITH
RESPECT TO ANY OF THE ACTIVITY'S 80-85 PROFESSIONAL EMPLOYEES, INCLUDING
THE EMPLOYEES SOUGHT HEREIN.
/4/ THE RECORD DISCLOSES THAT, IN ADDITION TO THE FIVE PROFESSIONAL
ENGINEERS ASSIGNED TO THE QUALITY CONTROL ENGINEERING BRANCH, THERE ARE
TWO QUALITY ASSURANCE SPECIALISTS WHO ALSO ARE ASSIGNED TO THIS BRANCH.
4 A/SLMR 343; P. 81; CASE NO. 41-3181(CA); JANUARY 25, 1974.
DEPARTMENT OF THE AIR FORCE,
KEESLER TECHNICAL TRAINING CENTER,
KEESLER AIR FORCE BASE
A/SLMR NO. 343
THIS CASE INVOLVED AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY LOCAL
943, NATIONAL FEDERATION OF FEDERAL EMPLOYEES (COMPLAINANT) AGAINST THE
DEPARTMENT OF THE AIR FORCE, KEESLER TECHNICAL TRAINING CENTER, KEESLER
AIR FORCE BASE (RESPONDENT), ALLEGING THAT THE RESPONDENT VIOLATED
SECTION 19(A)(1) OF THE EXECUTIVE ORDER BY (1) INTERFERING WITH AND
RESTRAINING THE COMPLAINANT IN THE EXERCISE OF ITS RIGHT TO DISCUSS AND
AGREE UPON THE DUTIES AND RESPONSIBILITIES WITH RESPECT TO A PROPOSED
POSITION DESCRIPTION; (2) COERCING EMPLOYEES THROUGH A THREAT OF
PUNITIVE ACTION IF THEY CONTINUED TO PURSUE THE MATTER; AND (3)
PUNITIVELY REASSIGNING EIGHT EMPLOYEES FROM TRAINING SPECIALIST GS-9 TO
TRAINING INSTRUCTOR GS-9.
ON OR ABOUT JANUARY 24, 1972, EMPLOYEES OF THE RESPONDENT'S
INSTRUCTIONAL SYSTEMS DEVELOPMENT TEAM (ISD) MADE THEIR SUPERVISORS
AWARE THAT THEY WERE DISSATISFIED WITH THEIR JOB DESCRIPTION.
THEREAFTER, THE ISD TEAM SUPERVISOR MET WITH THE EIGHT MEMBERS OF THE
TEAM AND THE CHAIRMAN OF THE UNION GRIEVANCE COMMITTEE AND REVIEWED A
NEW JOB DESCRIPTION PREPARED BY THE SUPERVISOR. SOMETIME IN LATE AUGUST
OR EARLY SEPTEMBER 1972, THE ISD TEAM MEMBERS AGAIN EXPRESSED
DISSATISFACTION WITH THEIR JOB DESCRIPTION. A SERIES OF EIGHT OR MORE
MEETINGS WERE INITIATED BY THEIR SUPERVISOR IN AN ATTEMPT TO RESOLVE THE
DIFFERENCES AND, AS A RESULT OF THESE MEETINGS, WITH ONE EXCEPTION,
SUBSTANTIAL AGREEMENT WAS REACHED AS TO WHAT WOULD BE INCLUDED IN THE
JOB DESCRIPTION. THE ONE REMAINING AREA OF DISAGREEMENT INVOLVED THE
INCLUSION IN THE JOB DESCRIPTION OF A REFERENCE TO "ATCM 20-1." THE
ACTIVITY'S SUPERVISOR CONTENDED THAT "ATCM 20-1" APPARENTLY REFLECTED A
DEPARTMENTAL CURRICULAR LEVEL, RATHER THAN THE BRANCH LEVEL AT WHICH THE
ISD TEAM WAS ASSIGNED, AND THAT HE WOULD NOT INCORPORATE THOSE DUTIES
REFERRED TO IN "ATCM 20-1 IN THE JOB DESCRIPTION. ALTHOUGH GIVEN THE
OPPORTUNITY, NO UNION OFFICERS OR STEWARD ATTENDED ANY OF THE SUBSEQUENT
MEETINGS ON THIS MATTER. THEREAFTER, ANOTHER GROUP MEETING WAS HELD TO
DISCUSS THE JOB DESCRIPTION WITH THE EMPLOYEES AGREEING PREVIOUSLY NOT
TO RAISE THE "ATCM 20-1" MATTER. WHEN THE "ATCM 20-1" MATTER WAS RAISED
BY AN EMPLOYEE, THE SUPERVISOR SLAMMED HIS FIST ON THE TABLE AND
ALLEGEDLY SAID TO THE EMPLOYEES IN ATTENDANCE, "IF WE FORCED HIM TO
INCLUDE THAT STATEMENT IN THE POSITION DESCRIPTION AND SIGN THAT IT WAS
CORRECT, HE WOULD SEE THAT WE WERE TRANSFERRED BACK TO THE CLASSROOM AS
SOON AS POSSIBLE." FURTHER, THE SUPERVISOR ALLEGEDLY STATED THAT
REGARDLESS OF HOW THE EMPLOYEES INTERPRETED IT - "THEY COULD GO TO THE
UNION OR CONGRESS IF THEY WISHED - HE WOULD TRANSFER THEM TO THE
CLASSROOM IF THE ATCM 20-1 HAD TO BE INCLUDED IN THE POSITION
DESCRIPTION."
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED DISMISSAL OF THE COMPLAINT
IN ITS ENTIRETY. IN REACHING HIS CONCLUSION, HE FOUND THAT THE
ABOVE-NOTED STATEMENTS WERE NOT RETALIATORY OR IN REPRISAL FOR EMPLOYEES
HAVING ENGAGED IN SECTION 1(A) ACTIVITIES. HE FOUND, FURTHER, AMONG
OTHER THINGS, THAT THE EVIDENCE PRESENTED DID NOT DEMONSTRATE THAT ANY
ACTS ON THE PART OF THE SUPERVISOR RESULTED IN A THREAT TO THE EMPLOYEES
INVOLVED OR CAUSED THE RESPONDENT TO INTERFERE WITH, RESTRAIN, COERCE OR
DISCRIMINATE AGAINST EMPLOYEES IN VIOLATION OF SECTION 19(A)(1) OF THE
ORDER.
UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S REPORT AND
RECOMMENDATION AND THE ENTIRE RECORD IN THE CASE, AND NOTING THE
ADMINISTRATIVE LAW JUDGE'S CREDIBILITY RESOLUTIONS, THE ASSISTANT
SECRETARY ADOPTED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
ADMINISTRATIVE LAW JUDGE THAT THE COMPLAINANT DID NOT MEET ITS BURDEN OF
PROVING, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE RESPONDENT
VIOLATED SECTION 19(A)(1) OF THE ORDER. ACCORDINGLY, THE ASSISTANT
SECRETARY ORDERED THAT THE COMPLAINT BE DISMISSED.
DEPARTMENT OF THE AIR FORCE,
KEESLER TECHNICAL TRAINING CENTER,
KEESLER AIR FORCE BASE
AND
LOCAL 943, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
ON OCTOBER 31, 1973, ADMINISTRATIVE LAW JUDGE RHEA M. BURROW 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 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 IN THE SUBJECT CASE, INCLUDING THE EXCEPTIONS AND
SUPPORTING BRIEF, AND NOTING HIS CREDIBILITY RESOLUTIONS, I HEREBY ADOPT
THE FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE ADMINISTRATIVE LAW
JUDGE THAT DISMISSAL OF THE INSTANT COMPLAINT IS WARRANTED BECAUSE THE
COMPLAINANT DID NOT MEET ITS BURDEN OF PROVING BY A PREPONDERANCE OF THE
EVIDENCE THAT THE RESPONDENT'S CONDUCT HEREIN VIOLATED SECTION 19(A)(1)
OF THE ORDER. /1/
IT IS HEREBY ORDERED THAT THE COMPLAINT IS CASE NO. 41-3181(CA) BE,
AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ ON PAGE 6 OF HIS REPORT AND RECOMMENDATION, THE ADMINISTRATIVE
LAW JUDGE INADVERTENTLY NOTED THAT NEW CLASSIFICATION STANDARDS WERE
PROMULGATED BY THE UNITED STATES CIVIL SERVICE COMMISSION IN FEBRUARY
1973, RATHER THAN IN FEBRUARY 1972. THIS INADVERTENCY IS HEREBY
CORRECTED.
IN THE MATTER OF
DEPARTMENT OF THE AIR FORCE
KEESLER TECHNICAL TRAINING CENTER
KEESLER AIR FORCE BASE
AND
LOCAL 943, NATIONAL FEDERATION OF
FEDERAL EMPLOYEES
MAJOR ORIS D. DEARBORN, JR.
OFFICE OF THE STAFF JUDGE ADVOCATE
KEESLER AIR FORCE BASE
BILOXI, MISSISSIPPI 39354
MICHAEL FORSCEY, ESQ.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
1737 H STREET, N.W.
WASHINGTON, D.C.
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
PURSUANT TO A COMPLAINT FILED ON MARCH 8, 1973, UNDER EXECUTIVE ORDER
11491, AS AMENDED, BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES,
LOCAL NO. 943 (HEREINAFTER CALLED THE UNION) AGAINST THE DEPARTMENT OF
AIR FORCE, KEESLER TECHNICAL TRAINING CENTER, KEESLER AIR FORCE BASE
(HEREINAFTER CALLED THE RESPONDENT ACTIVITY), A NOTICE OF HEARING WAS
ISSUED BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
ADMINISTRATION, ATLANTA REGION ON MARCH 29, 1973, SETTING THIS CASE FOR
HEARING ON MAY 10, 1973, FOR A SECTION 19(A)(1) VIOLATION. A HEARING
WAS HELD IN THIS MATTER ON MAY 10, 1973, IN BILOXI, MISSISSIPPI ON THE
COMPLAINT ALLEGING:
"THE COMPLAINANTS CHARGE THAT INTERFERENCE AND RESTRAINT WAS
PRACTICED BY MANAGEMENT IN THE
EXERCISE OF COMPLAINANTS' RIGHTS TO DISCUSS AND AGREE UPON THE DUTIES
AND RESPONSIBILITIES FOR
THEIR PROPOSED POSITION DESCRIPTION. FURTHER, THAT MANAGEMENT
COERCED THE EMPLOYEES THROUGH A
THREAT OF PUNITIVE ACTION, IF THEY PURSUED THE MATTER OR MADE FURTHER
COMPLAINTS ABOUT THE
DESCRIPTION OF THEIR DUTIES AND RESPONSIBILITIES FOR THE PROPOSED
POSITION DESCRIPTION.
"THESE PROVISIONS WERE VIOLATED IN THE FOLLOWING RESPECT: ON 31
OCTOBER 1972, AT 11:32
A.M., IN ROOM 235 OF ALLEE HALL, CAPTAIN GEORGE B. PREGEL, CHIEF,
BRANCH 4, ELECTRONICS
PRINCIPLES DEPARTMENT, MET WITH ISD TEAM MEMBERS TO DISCUSS THE
PROPOSED POSITION
DESCRIPTION. AFTER DISCUSSION AND AGREEMENT ON THE MAJORITY OF THE
POSITION DESCRIPTION
CONTENT, THE QUESTION OF ONE OR TWO ITEMS TO BE RESOLVED WAS RAISED.
THE PART CONCERNED THE
INCLUSION OF REFERENCE TO ATCM 20-1 IN THE INTRODUCTION. CAPTAIN
PREGEL FORCEFULLY INFORMED
THE EMPLOYEES THAT IF THEY INSISTED ON THE INCLUSION OF THAT SPECIFIC
REFERENCE IN THEIR
PROPOSED POSITION DESCRIPTION HE WOULD SEE THAT ALL EIGHT EMPLOYEES
WOULD BE TRANSFERRED BACK
TO THE CLASSROOM AS SOON AS POSSIBLE. HE ALSO STATED THAT HE WOULD
NOT DISCUSS THE MATTER
WITH THE EMPLOYEES FURTHER.
"THE COMPLAINANTS ALSO FIND THAT THE SPIRIT AND THE LETTER OF THOSE
AIR FORCE REGULATIONS
WHICH REQUIRE SUPERVISORS OR OTHER PERSONS ACTING IN AN OFFICIAL
CAPACITY TO ABSTAIN FROM
MAKING OVERT THREATS TO TAKE ANY ACT OF REPRISAL AGAINST EMPLOYEES
BECAUSE THEY INTEND TO
EXERCISE THEIR RIGHTS OF APPEAL, WAS NOT ENFORCED.
"AS DIRECTED BY TTOR LETTER, POSITION DESCRIPTION,.TRAINING
INSTRUCTOR GS-9, 21 NOVEMBER
1972, THE EIGHT EMPLOYEES WERE REASSIGNED FROM POSITIONS OF TRAINING
SPECIALIST GS-9 TO
TRAINING INSTRUCTOR, GS-9. THE COMPLAINANTS BELIEVE THIS ACTION WAS
PUNITIVE AND DEMONSTRATED
MANAGEMENT'S ATTEMPT TO CIRCUMVENT THE RECOGNITION OF A POSITION
DESCRIPTION THAT WOULD
ACCURATELY DESCRIBE THE DUTIES OF THESE PERSONNEL."
ALL PARTIES WERE REPRESENTED AND THROUGH COUNSEL WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE EVIDENCE BEARING ON THE ISSUE HEREIN. ORAL ARGUMENT WAS
WAIVED BUT BOTH COMPLAINANT AND THE RESPONDENT FILED BRIEFS FOR
CONSIDERATION OF THE UNDERSIGNED.
FROM THE ENTIRE RECORD HEREIN, INCLUDING OBSERVATION OF WITNESSES AND
THEIR DEMEANOR, AND ALL RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE
THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS:
IN JANUARY 1972 SEVERAL CIVILIAN EMPLOYEES WHO WERE AT THAT TIME
MEMBERS OF THE INSTRUCTIONAL SYSTEMS DEVELOPMENT TEAM (HEREINAFTER
REFERRED TO AS ISD) BRANCH IV, ELECTRONIC PRINCIPLES DEPARTMENT, AT THE
SCHOOL OF APPLIED AEROSPACE SCIENCES, AT KEESLER TECHNICAL TRAINING
CENTER MADE THEIR SUPERVISORS AWARE OF THEIR DISSATISFACTION WITH THEIR
JOB DESCRIPTION BY CONVERSATION WITH FRANK TOWELL AND BY LETTERS TO
THEIR SEVERAL BRANCH CHIEFS DATED JANUARY 24, 1972. MR. TOWELL WAS
CHIEF, TRAINING SECTION FOR THE ELECTRONICS PRINCIPLES DEPARTMENT UNTIL
HE RETIRED IN FEBRUARY 1972 AND BILL M. JINKS ASSUMED THE POSITION. MR.
JINKS TESTIFIED THAT THIS WAS NOT A SUPERVISORY POSITION OVER THE ISD
TEAM, BUT HE DID FEEL A FORMAL ORGANIZATIONAL RESPONSIBILITY TO IT
ALTHOUGH THE MEMBERS OF THE TEAM HAD NO RESPONSIBILITY TO HIM. /1/ MR.
JINKS ATTEMPTED TO WRITE A JOB DESCRIPTION FOR THE ISD TEAM EMPLOYEES
BUT WAS DELAYED DUE TO HIS NEED TO SETTLE INTO HIS NEW POSITION. THIS
INFORMATION WAS RELATED TO DALE M. TITLER, ONE OF THE MEMBERS OF THE
EMPLOYEE TEAM AND HAROLD M. HIRN, CHAIRMAN OF THE UNION GRIEVANCE
COMMITTEE. LATER CONTACTS BETWEEN MR. JINKS AND MR. HIRN WERE INFORMAL
IN NATURE.
ON OR ABOUT APRIL 10, 1972, CAPTAIN (NOW MAJOR, AND HEREINAFTER
REFERRED TO AS MAJOR) GEORGE B. PREGEL BECAME SUPERVISOR OF THE ISD TEAM
WITH CONSOLIDATION OF ALL TEAM MEMBERS UNDER HIM AS CHIEF OF BRANCH IV,
RATHER THAN TWO MEMBERS BEING IN EACH OF THE FOUR BRANCHES OF THE
ELECTRONICS PRINCIPLES DEPARTMENT. /2/ SHORTLY AFTER HIS ARRIVAL MAJOR
PREGEL, AT A MEETING WITH THE TEAM AND MR. HIRN, HANDED THEM THE NEW JOB
DESCRIPTION THAT HAD BEEN PREPARED BY MR. JINKS AND MANAGEMENT; HE
EXPLAINED AND WENT OVER IT WITH THEM AND ASKED QUESTIONS AS TO WHAT THEY
THOUGHT OF IT. /3/ THEY HAD MR. HIRN PRESENT AT THE TIME, MAJOR PREGEL
TESTIFIED AT THE HEARING THAT AS TO MR. HIRN'S POSITION: "I KNEW THAT
HE WAS A UNION REPRESENTATIVE AND HE WAS GOING TO REPRESENT THEIR PART
OF THE UNION. AND, IF I MAY ADD, AT THAT TIME AND TO THE TIME IN
NOVEMBER /4/ WHEN MR. TITLER AND MR. BOWEN WERE ELECTED AS OFFICIALS OF
THE UNION, I DIDN'T KNOW ANY MAN IN THE UNIT WAS A UNION MEMBER PER
BELONG TO THE UNION TO BE REPRESENTED. I NEVER DID FIND OUT FACTUALLY
OR ACTUALLY WHETHER ANYONE WAS A MEMBER OR NOT." HE FURTHER STATED THAT
IT MADE NO DIFFERENCE TO HIM WHETHER ANYONE WAS A MEMBER OR NOT.
SOMETIME IN LATE AUGUST OR EARLY SEPTEMBER 1972, THE ISD TEAM MEMBERS
AGAIN EXPRESSED DISSATISFACTION WITH THEIR JOB DESCRIPTIONS AND MAJOR
PREGEL INITIATED A SERIES OF MEETINGS WITH THEM IN AN ATTEMPT TO RESOLVE
THE DIFFERENCES. HE MET WITH EACH MEMBER OF THE TEAM INDIVIDUALLY AT
LEAST TWICE AND HAD ABOUT EIGHT MEETINGS WITH THE GROUP DURING THE
ENSUING MONTHS BEFORE THE FINAL MEETING HELD ON OCTOBER 31, 1972. /5/
DURING THIS PERIOD HE FURNISHED MEMBERS OF THE TEAM COPIES OF THEIR JOB
DESCRIPTIONS, THEIR INPUTS AND LISTENED TO DISCUSSION AND INCORPORATED
MANY OF THEIR IDEAS AND CHANGES IN THE JOB DESCRIPTION BEING DEVELOPED.
THE CHANGES MADE RESULTED IN AT LEAST THREE DRAFTS BEING MADE IN THEIR
JOB DESCRIPTION. THERE SEEMED TO BE SUBSTANTIAL AGREEMENT AS TO THE
PROPOSED JOB DESCRIPTION EXCEPT THAT THE TEAM MEMBERS WERE DISSATISFIED
THAT ATCM 20-1 WAS NOT INCLUDED. MR. TITLER TESTIFIED THAT IT WAS
THOUGHT THAT THIS WOULD IDENTIFY THE WORK THAT THE ISD TEAM MEMBERS WERE
DOING AND WOULD RESULT IN THE POSITION DESCRIPTION BEING RECLASSIFIED
FROM GS-9 TO GS-11. /6/ MAJOR PREGEL TESTIFIED THAT HE HAD DISCUSSED
THE MATTER OF ATCM 20-1 INDIVIDUALLY WITH THE MEMBERS OF THE TEAM AND
ALSO AT SEVERAL TEAM MEETINGS. THE REASON GIVEN FOR NOT INCLUDING IT IN
THE JOB DESCRIPTION WAS BECAUSE IT REFLECTED A JOB IN A DEPARTMENT
CURRICULAR LEVEL AND THESE GENTLEMEN WERE ASSIGNED TO A BRANCH IN AN ISD
TEAM. /7/ THIS MATTER HAD BEEN DISCUSSED SO MANY TIMES THAT HE HAD
INFORMED MEMBERS OF THE TEAM ON SEVERAL OCCASIONS THAT HE WOULD NOT
DISCUSS IT FURTHER AS IT WAS A CLOSED SUBJECT. MR. TITLER ON OCTOBER
31, 1972, ASKED FOR A MEETING TO BE HELD WITH THE GROUP TO DISCUSS THE
JOB DESCRIPTION. UPON HIS ASSURANCE THAT IT DID NOT INCLUDE ATC MANUAL
20-1 AND ELECTRONICS PRINCIPLES COURSE BEING A FINAL OR ENTIRE COURSE,
MAJOR PREGEL SCHEDULED A MEETING. PRIOR TO THE MEETING, MAJOR PREGEL
HAD ASKED MR. TITLER, "ARE YOU SURE BECAUSE I DON'T WANT TO HAVE TO GO
THROUGH A HASSLE WHERE WE WILL SPEND OVER A HOUR JUST ARGUING ABOUT THE
ATC MANUAL 20-1?" AFTER SETTING UP AND ARRIVING AT THE MEETING, THE TWO
MATTERS WERE ON THE AGENDA AND MR. TITLER WAS STATED TO HAVE SAID, "WE
JUST WANT TO HAVE IT FOR THE RECORD." /8/ OTHER WITNESSES VERIFIED THE
MATTER HAD BEEN DISCUSSED AT VARIOUS MEETINGS AND THAT THEY HAD BEEN
INFORMED THERE WOULD NOT BE FURTHER FORMAL DISCUSSION OF THE MATTER BY
MAJOR PREGEL.
AT THE HEARING THE COMPLAINANT AND RESPONDENT STIPULATED THE
FOLLOWING WHICH ARE NOT IN DISPUTE:
1. ON OCTOBER 31, 1972, THERE WAS A MEETING BETWEEN MAJOR GEORGE B.
PREGEL AND A NUMBER OF CIVILIAN EMPLOYEES WHO WERE ALL MEMBERS OF THE
INSTRUCTIONAL SYSTEMS DEVELOPMENT TEAM, BRANCH IV, ELECTRONICS
PRINCIPLES DEPARTMENT, UNITED STATES AIR FORCE SCHOOL OF APPLIED
AEROSPACE SCIENCES, KEESLER TECHNICAL TRAINING CENTER, KEESLER AIR FORCE
BASE, MISSISSIPPI. THIS WAS ONE OF A NUMBER OF MEETINGS BETWEEN THESE
EMPLOYEES AND MAJOR PREGEL AND THESE MEETINGS, DEALT WITH THE CONTENTS
OF THE JOB DESCRIPTION FOR THESE EMPLOYEES.
2. MAJOR PREGEL WAS AT THAT TIME THE SECOND LINE SUPERVISOR OF THESE
EMPLOYEES. ALL EMPLOYEES ON THE ISD TEAM WERE GS-9 TRAINING
SPECIALISTS. ON OCTOBER 31, 1972, THE EMPLOYEE MEMBERS OF THE ISD TEAM
WERE DALE M. TITLER, DONALD M. BOWEN, ALTON R. BALL, LEE D. JOHNSON,
ARMAS A. JOHNSON, JONES F. MICKAEL, THOMAS J. RHODEMAN, AND VIVIAN B.
TAYLOR. ALTON BALL AND JAMES F. MICKAEL WERE NOT PRESENT AT THE OCTOBER
31, 1972 MEETING.
3. ALL EMPLOYEES ATTENDING THE OCTOBER 31, 1972 MEETING WERE
INDIVIDUALLY AND COLLECTIVELY PROTECTED BY SECTION 1(A) OF EXECUTIVE
ORDER 11491, AS AMENDED.
IN ADDITION TO THE ABOVE, TESTIMONY AND DOCUMENTARY EVIDENCE OF
RECORD REVEALS THAT THE UNION HELD EXCLUSIVE RECOGNITION AT KEESLER AIR
FORCE BASE; THAT NONE OF THE ISD TEAM EMPLOYEES WERE, UNION OFFICERS ON
OCTOBER 31, 1972, AND THAT W. E. TULLOS HAD RESIGNED AS PRESIDENT OF THE
UNION IN SEPTEMBER 1971 AND THE UNION WAS APPARENTLY WITHOUT A FULL
COMPLEMENT OF OFFICERS UNTIL NOVEMBER 8, 1972. /9/
IN FEBRUARY 1973 NEW CLASSIFICATION STANDARDS PROMULGATED BY THE
UNITED STATES CIVIL SERVICE COMMISSION RELATING TO USE IN THE
INSTRUCTION AND TRAINING AREA COMMONLY REFERRED TO AS THE 1710-1712
SERIES WERE RECEIVED AT KEESLER AIR FORCE BASE. /10/ THERE WAS SOME
DELAY IN IMPLEMENTING THE STANDARDS OCCASIONED BY THE NEED TO OBTAIN
CLARIFICATION. PRIOR TO THE OCTOBER 31, 1972 MEETING OF MAJOR PREGEL
AND THE ISD TEAM EMPLOYEES, THE KEESLER TECHNICAL TRAINING CENTER
COMMANDER (KTTC) AND THE UNITED STATES AIR FORCE SCHOOL OF APPLIED
AEROSPACE SCIENCE (USAF SAAS) COMMANDER WERE BRIEFED ON THIS CHANGE.
/11/ AS A RESULT OF THE NEW CIVIL SERVICE COMMISSION CLASSIFICATION
STANDARDS ABOUT 149 GS-7 TRAINING INSTRUCTOR POSITIONS WERE ELEVATED TO
GS-9 AND ABOUT 23 GS-9 SUPERVISOR INSTRUCTOR POSITIONS WERE ELEVATED TO
GS-11. /12/ THE EFFECTIVE DATE OF THE PERSONNEL ACTIONS WAS OCTOBER 29,
1972.
LEE JOHNSON, ONE OF THE GS-9 TEAM MEMBERS, TESTIFIED THAT DURING THE
TIME HE WAS WORKING ON THE ISD PROJECT AND BEFORE OCTOBER 29, 1972, YOU
COULD EITHER BE A WRITER OR WORK IN SPECIAL TRAINING OR MAKE A LATERAL
TRANSFER TO A SUPERVISOR. THE GS-7'S WERE INSTRUCTORS WITH FULL-TIME
DUTIES IN THE CLASSROOM. BEING A GS-9 WAS CONSIDERED BY HIM TO ADD A
LITTLE MORE PRESTIGE THAN PROJECT WORK DIRECTLY WITH INSTRUCTORS. /13/
BILL M. JINKS, CHIEF OF THE TRAINING SECTION FOR THE ELECTRONICS
PRINCIPLES DEPARTMENT, /14/ TESTIFIED THAT THE DEPARTMENT HAD NINE
SEPARATE GS-9 POSITION DESCRIPTIONS AND FOR ALL PRACTICAL PURPOSES FELT
THAT THEY SHOULD BE REQUIRED TO DO THE SAME TYPE AND LEVEL OF WORK.
/15/ IN NOVEMBER 1972, IT WAS DECIDED BY THE COMMANDER, USAF SAAS, MR.
GRANVILLE O. CHASTAIN, CIVILIAN PERSONNEL OFFICER, AND INDEPENDENTLY BY
MR. JINKS TO HAVE A STANDARD JOB DESCRIPTION FOR ALL OF THE NEW AND OLD
POSITIONS IN THE ELECTRONICS PRINCIPLES DEPARTMENT. /16/ AFTER THE OLD
JOB DESCRIPTION WAS STANDARDIZED ALL OF THE ISD TEAM MEMBERS WHO WERE IN
THESE POSITIONS AS OF OCTOBER 31, 1972, WERE TRANSFERRED TO THE NEW
POSITION AS TRAINING INSTRUCTORS. /17/
ON OCTOBER 31, 1972, MAJOR PREGEL CALLED A MEETING OF THE ISD TEAM
EMPLOYEES AT THE REQUEST OF DALE M. TITLER. /18/ THOSE PRESENT INCLUDED
SIX OF THE EIGHT MEMBERS OF THE ISD TEAM, JAMES MICHAEL AND ALTON BALL
BEING ABSENT.
MAJOR PREGEL REVIEWED TWO ITEMS THAT HAD BEEN CHANGED SINCE AN
EARLIER MEETING AT WHICH TIME THERE HAD BEEN DISCUSSION OF THE ITEMS
POINT BY POINT. THE TWO CHANGES CONCERNED (1) OUR DUTIES WITH REGARD TO
PREPARING ITEMS FOR SURVEYING THE SETS COURSES AND OUR PART IN ASSISTING
IN THE CONDUCTING OF SUCH SURVEYS, AND (2) OUR POSITION REGARDING
DEPARTMENT REQUIREMENT DUTIES IN IDENTIFYING FEATURES OF TRAINING TO BE
USED IN THE LABORATORY PORTIONS OF THE COURSE. THE GROUP AGREED IN
GENERAL THAT THE CHANGES WERE SUBSTANTIALLY CORRECT AND TENTATIVELY
ACCEPTABLE.
MR. TITLER, A MEMBER OF THE ISD TEAM, THEN ATTEMPTED TO BRING UP THE
MATTER OF ATCM 20-1 AND THE QUESTION OF THE MEMBERS OF THE GROUP BEING
INVOLVED IN A COMPLETE COURSE OF INSTRUCTION AS ITEMS ON THE AGENDA THAT
WERE UNRESOLVED. AT THIS POINT MAJOR PREGEL IS STATED TO HAVE SLAMMED
HIS FIST ON THE TABLE AND SAID IT WAS RESOLVED. HE POINTED HIS FINGER
AT MR. TITLER AND SAID THAT "IF WE FORCED HIM TO INCLUDE THAT STATEMENT
IN THE POSITION DESCRIPTION AND SIGN THAT IT WAS CORRECT HE WOULD SEE
THAT WE WERE TRANSFERRED BACK TO THE CLASSROOM AS SOON AS POSSIBLE."
WHEN MR. TITLER STATED THAT THIS WAS A CLEAR CUT THREAT MAJOR PREGEL
IS REPORTED TO HAVE SAID THAT REGARDLESS OF HOW WE INTERPRETED IT-- WE
COULD GO TO THE UNION OR CONGRESS IF WE WISHED-- HE WOULD TRANSFER US IF
ATCM 20-1 HAD TO BE INCLUDED IN THE POSITION DESCRIPTION. HE FURTHER
STATED THAT HE WAS THROUGH TALKING ABOUT THIS MATTER AND WHEN WE WANTED
TO SEE HIM TO CONTACT SERGEANT KELLER AND ARRANGE AN APPOINTMENT.
FURTHER, THAT HE WOULD EXPECT OUR WORK FROM NOW ON TO REFLECT TWO YEARS
OF EXPERIENCE AND WE SHOULD PERFORM EXACTLY AS THE JOB DESCRIPTION IS
NOW WRITTEN, AS IT WOULD BE REVIEWED BY HIM AND TWO MEMBERS OF
CURRICULA. HE APPEARED HIGHLY AGITATED AND IN AN UPSET EMOTIONAL STATE.
/19/
TESTIMONY AT THE HEARING INCLUDING THAT OF MR. TITLER SUBSTANTIATED
MAJOR PREGEL'S STATEMENT THAT THE GROUP WAS ADVISED PRIOR TO AND AT THE
OCTOBER 31, 1972 MEETING THAT THE MATTER OF ATCM 20-1 AND THE QUESTION
OF THE MEMBERS OF THE GROUP BEING INVOLVED IN A COMPLETE COURSE OF
INSTRUCTION HAD BEEN PREVIOUSLY DISCUSSED ON SEVERAL OCCAIONS AND WOULD
NOT BE INCLUDED IN THEIR JOB DESCRIPTION.
SECTION 19(A)(1) OF EXECUTIVE ORDER 11491 (HEREINAFTER REFERRED TO AS
THE ORDER) PROVIDES: "AGENCY MANAGEMENT SHALL NOT (1) INTERFERE WITH,
RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE
ORDER."
THE POLICY SET FORTH IN SECTION 1(A) OF THE ORDER STATES:
"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 THE 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 ORGANIZATION REPRESENTATIVE,
INCLUDING PRESENTATION OF ITS
VIEWS TO OFFICIALS OF THE EXECUTIVE BRANCH, THE CONGRESS, OR OTHER
APPROPRIATE AUTHORITY. 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 PRACTICED WITHIN HIS AGENCY TO ENCOURAGE AND
DISCOURAGE MEMBERSHIP IN A
LABOR ORGANIZATION."
SECTION 11(B) OF THE ORDER PROVIDES THAT:
"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 . . . ."
SECTION 12(B)(1) AND (2) OF THE ORDER PROVIDES THAT:
"MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN ACCORDANCE
WITH APPLICABLE LAWS
AND REGULATIONS--
(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."
SECTION 203.14 OF THE REGULATIONS OF THE ASSISTANT SECRETARY FOR
LABOR MANAGEMENT RELATIONS PROVIDE THAT "A COMPLAINANT IN ASSERTING A
VIOLATION OF THE ORDER SHALL HAVE THE BURDEN OF PROVING THE ALLEGATIONS
OF THE COMPLAINT BY A PREPONDERANCE OF EVIDENCE."
(1) THERE WERE AT LEAST SIXTEEN INDIVIDUAL AND EIGHT GROUP MEETINGS
BETWEEN MAJOR PREGEL AND MEMBERS OF THE ISD TEAM FROM APRIL 10, 1972
WHEN MAJOR PREGEL WAS ASSIGNED TO KEESLER AIR FORCE BASE TO THE OCTOBER
31, 1972 MEETING. HAROLD HIRN, GRIEVANCE COMMITTEE CHAIRMAN FOR NFFE
LOCAL 943, WHICH HELD EXCLUSIVE REPRESENTATION AT KEESLER AIR FORCE
BASE, MISSISSIPPI, ATTENDED A GROUP MEETING WITH MEMBERS OF THE ISD TEAM
AFTER MAJOR PREGEL'S ARRIVAL IN APRIL 1972 TO URGE CORRECTION OF THE ISD
TEAM MEMBERS JOB DESCRIPTION; HE EXPRESSED OPINION ACCORDING TO MAJOR
PREGEL WHICH WAS UNDISPUTED THAT IT WAS UNNECESSARY FOR HIM TO ATTEND
FURTHER GROUP MEETINGS WITH MAJOR PREGEL ALTHOUGH HE WAS EXTENDED AN
INVITATION TO DO SO.
(2) NONE OF THE EIGHT MEMBERS OF THE ISD TEAM WERE OFFICERS IN NFFE
LOCAL 943 DURING THE NUMEROUS INDIVIDUAL AND GROUP MEETINGS FROM APRIL
10 THROUGH OCTOBER 31, 1972. THE UNION WAS ALSO WITHOUT A PRESIDENT
DURING THIS PERIOD.
(3) THE JOB DESCRIPTION RELATING TO ASSIGNMENT OF WORK AND THE
NUMBERS, TYPES, AND GRADES OF SPECIFIC EMPLOYEES IS A NON-NEGOTIABLE
PREROGATIVE OF MANAGEMENT UNDER SECTIONS 11(B) AND 12(B)(1) AND (2), OF
THE ORDER AND DALE M. TITLER AND LEE O. JOHNSON TESTIFIED THESE RIGHTS
WERE NOT AT ISSUE HEREIN. /20/ THE JOB DESCRIPTION PREPARATION NOT
BEING AN ACTIVITY OF UNION IMPORT WAS NOT ONE BY TEAM MEMBERS ON BEHALF
OF NFFE LOCAL 943. EVEN ASSUMING ARGUENDO THAT THE MATTER OF JOB
DESCRIPTION WAS ONE RELATING TO PERSONNEL POLICIES AND PRACTICES AND A
MATTER AFFECTING WORKING CONDITIONS OF EMPLOYEES UNDER SECTION 11(A) OF
THE ORDER, THERE WERE IN FACT BONA FIDE GROUP MEETINGS HELD TO CONFER
WITH THE ISD TEAM MEMBERS ON THE MATTERS AND POLICIES IN ISSUE; THE
UNION REPRESENTATIVE HAD EXPRESSED NO DESIRE TO CONFER AFTER ATTENDING
ONE OF THE EARLY GROUP MEETINGS ALTHOUGH INVITED TO DO SO. AT THE
OCTOBER 31, 1972 SOLICITED MEETING BY THE ISD TEAM MEMBERS THE ONLY
POSITION TAKEN BY RESPONDENT, PREGEL WAS TO CONSIDER THE TEAM VIEWS AS
TO MATTERS TO BE INCLUDED IN THEIR JOB DESCRIPTION OTHER THAN INCLUSION
OF AGENDA THAT HAD BEEN AGREED WOULD BE EXCLUDED FROM DISCUSSION. IT
WAS BAD FAITH ON THE PART OF THE TEAM MEMBERS TO HAVE MAJOR PREGEL
SCHEDULE A MEETING FOR THEIR BENEFIT ON ASSURANCE THAT CERTAIN SUBJECT
MATTER PREVIOUSLY DISCUSSED IN DETAIL WOULD NOT BE ON THE AGENDA AND AT
THE MEETING INSIST THAT IT BE DISCUSSED. I FIND THAT BUT FOR THE
ASSURANCE, THE MEETING WOULD NOT HAVE BEEN SCHEDULED; THAT THE ACTION
BY OR ON BEHALF OF TEAM MEMBERS INSISTING ON DISCUSSION OF THE SUBJECT
MATTER WHICH HAD BEEN AGREED WOULD NOT BE INCLUDED ON THE AGENDA WAS A
DELIBERATE ATTEMPT ON THEIR PART TO EMBARRASS MAJOR PREGEL, AND HIS
RESPONSE CAUSED BY THEIR ACTION WAS NOT OUT OF LINE WITH THE PROVOCATIVE
INSULT.
(4) THE BACKGROUND AND CIRCUMSTANCES LEADING TO THE OCTOBER 31, 1972
MEETING ARE NOT SHOWN TO BE SUCH AS TO HAVE LEAD, OR MADE MAJOR PREGEL
AWARE OF OR HAVE REASON TO BELIEVE THAT THE ISD MEMBERS WITH WHOM HE MET
ON OCTOBER 31, 1972, WERE ENGAGED IN ACTIVITY ON BEHALF OF NFFE LOCAL
943 OR OTHER ACTIVITIES ASSURED AND PROTECTED BY SECTION 1(A) OF THE
ORDER. WHEN SCHEDULED, THE MEETING WAS LIKE ONE IN A SERIES OF PRIOR
MEETINGS WHERE JOB DESCRIPTION WAS THE SUBJECT WITHOUT ANY REFERENCE TO
UNION ACTIVITY.
(5) MAJOR PREGEL'S ACTION AND STATEMENTS MADE AT THE OCTOBER 31, 1972
MEETING WERE NOT RETALIATORY OR IN REPRISAL FOR EMPLOYEES HAVING ENGAGED
IN SECTION 1(A) ACTIVITIES, BUT WERE PROMPTED BY A MEMBER OR MEMBERS OF
THE TEAM ACTING IN BAD FAITH BY ATTEMPTING TO INCLUDE AGENDA AS THE
SUBJECT OF DISCUSSION WHICH HAD BEEN AGREED WOULD NOT BE DISCUSSED. HIS
REACTION UNDER THE CIRCUMSTANCES DID NOT INTERFERE WITH, RESTRAIN, OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ORDER. /21/
(6) DALE M. TITLER, DONALD BOWEN AND LEE O. JOHNSON WERE SELECTED AS
OFFICERS IN NFFE LOCAL NO. 943 EIGHT DAYS AFTER THE OCTOBER 31, 1972
MEETING AND ALTON BALL AND JAMES F. MICKAEL DID NOT ATTEND THE OCTOBER
31, 1972 MEETING. I FIND THAT THE EVIDENCE DOES NOT DEMONSTRATE THAT
ANY ACTS ON THE PART OF MAJOR PREGEL AS TO THE OCTOBER 31, 1972 MEETING
RESULTED IN A THREAT TO THESE EMPLOYEES OR CAUSED THE RESPONDENT
ACTIVITY TO INTERFERE WITH, RESTRAIN, COERCE, OR DISCRIMINATE AGAINST
THEM IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER. I ALSO FIND THAT
THERE WAS NO SECTION 19(A)(1) VIOLATION AS TO THE THREE REMAINING
MEMBERS OF THE ISD TEAM /22/ WITH RESPECT TO THE SECTION 1(A) RIGHTS
ASSURED BY THE ORDER.
(7) MAJOR PREGEL AT THE OCTOBER 31, 1972 MEETING IS ALLEGED TO HAVE
MADE CERTAIN GESTURES AND REMARKS WHICH THE COMPLAINANT CONSTRUED AS A
THREAT TO TAKE ALL ISD TEAM EMPLOYEES OUT OF THE TEAM AND PLACE THEM
BACK IN THE CLASSROOM AS TRAINING INSTRUCTORS.
THERE WAS TESTIMONY AT THE HEARING ON MAY 10, 1973 THAT MAJOR PREGEL
FREQUENTLY MADE GESTURES WHEN SPEAKING. DONALD BOWEN DESCRIBED MAJOR
PREGEL'S MANNERISM BY STATING THAT, "HE HAS A KNACK OF, SHALL I SAY, HE
COULDN'T TALK IF HE COULDN'T USE HIS HANDS." /23/ HIS HAND MOVEMENT AT
THE HEARING WERE OBSERVED AS AN INTEGRAL ADJUNCT ORGAN OF SPEECH AND THE
DIFFERENCE IN HIS GESTURES AT THE OCTOBER 31, 1972 AND PRIOR GROUP
MEETINGS WAS STATED TO HAVE BEEN THAT HE POUNDED THE TABLE SOMEWHAT
HARDER ON THE LATTER OCCASION. CONSIDERING THE ENTIRE EVIDENTIARY
RECORD, I CONCLUDE THAT THERE WAS NO 19(A)(1) VIOLATION OF RIGHTS
ASSURED UNDER SECTION 1(A) OF THE ORDER BY REASON OF GESTURES MADE BY
MAJOR PREGEL AT THE OCTOBER 31, 1972 MEETING.
(8) ON OCTOBER 29, 1972 ALL GS-7 TRAINING INSTRUCTORS AT UNITED
STATES FIR FORCE SCHOOL OF AEROSPACE SCIENCE (USAF-SAAS) WERE ELEVATED
TO GS-9. THIS RESULTED FROM IMPLEMENTATION OF NEW CLASSIFICATION
STANDARDS PROMULGATED BY THE CIVIL SERVICE COMMISSION. CIVILIAN
EMPLOYEES INCLUDING THEIR REPRESENTATIVES HAD BEEN BRIEFED ON THE
CHANGES, PRIOR TO OCTOBER 29 AND THE MEETING ON OCTOBER 31, 1972, OF
MAJOR PREGEL AND THE ISD TEAM EMPLOYEES. AS A RESULT OF THE NEW
CLASSIFICATION STANDARDS ABOUT 149 GS-7 POSITIONS WERE ELEVATED TO GS-9
AND ABOUT 23 GS-9 SUPERVISORY-INSTRUCTOR POSITIONS WERE ELEVATED TO
GS-11.
THERE WERE ABOUT 29 GS-9 EMPLOYEES AND 88 GS-7 INSTRUCTORS IN THE
ELECTRONICS PRINCIPLES DEPARTMENT IN OCTOBER 1972. THE GS-7 EMPLOYEES
WERE CLASSROOM INSTRUCTORS AND THE GS-9 EMPLOYEES WERE DIVIDED; EIGHT
OR NINE WERE ASSIGNED AS INSTRUCTOR-SUPERVISORS AND THE OTHERS WERE
INSTRUCTORS WITH DUTIES REQUIRING THEM TO TEACH ABOUT SIXTY PERCENT
(60%) OF THE TIME AND WORK ON SPECIAL PROJECTS SUCH AS WRITING TRAINING
MATERIAL FORTY PERCENT (40%) OF THEIR TIME. THE ISD PROJECT MEMBERS
WERE SELECTED FROM THE 20 GS-9 INSTRUCTORS THAT HAD BEEN ASSIGNED TO THE
PROJECT. /24/
BILL M. JINKS, CHIEF OF TRAINING SECTION FOR THE ELECTRONICS
PRINCIPLES DEPARTMENT, TESTIFIED THAT THERE WERE NINE SEPARATE POSITION
DESCRIPTIONS FOR GS-9 TRAINING INSTRUCTORS AND IT WAS FELT THAT FOR ALL
PRACTICAL PURPOSES THEY SHOULD BE REQUIRED TO DO THE SAME LEVEL OF WORK.
/25/ HE WAS WORKING ON A COMMON POSITION DESCRIPTION WHEN HE WAS
PRESENTED ONE ABOUT NOVEMBER 21, 1972 PREPARED BY THE CIVILIAN PERSONNEL
OFFICE FROM THE OPERATIONS DIVISION OF THE SCHOOL HEADQUARTERS.
SUBSEQUENT TO THE ADOPTION OF THE STANDARD JOB DESCRIPTION FOR ALL NEW
AND OLD GS-9 POSITIONS IN THE ELECTRONICS PRINCIPLES DEPARTMENT ALL ISD
TEAM EMPLOYEES WHO WERE IN THOSE POSITIONS ON OCTOBER 31, 1972, WERE
TRANSFERRED DURING JANUARY 1973 TO THE NEW POSITIONS AS TRAINING
INSTRUCTORS. SEVERAL MEMBERS OF THE ISD TEAM TESTIFIED THAT THEY WERE
GIVEN THE OPPORTUNITY TO REQUEST THE SHIFT AND BRANCH ASSIGNMENTS THEY
DESIRED WHEN THEIR TRANSFER WAS ACCOMPLISHED.
SEVERAL ISD TEAM MEMBERS TESTIFIED THAT AT THE OCTOBER 31 MEETING,
MAJOR PREGEL REMARKED THAT HE WOULD TRANSFER THE ISD TEAM EMPLOYEES BACK
IN THE CLASSROOM IF THEY FORCED HIM TO INCLUDE THE ATCM 20-1 IN THEIR
JOB DESCRIPTION. MAJOR PREGEL'S ACCOUNT OF THE REMARK WAS THAT HE WOULD
SEE THE ISD EMPLOYEES BACK IN THE CLASSROOM RATHER THAN SIGN AN
INACCURATE JOB DESCRIPTION PARTICULARLY AS PERTAINS TO AN INCLUSION OF
ATCM 20-1.
I FIND FROM A REVIEW OF ALL THE TESTIMONY AND DOCUMENTARY EVIDENCE OF
RECORD THAT THE STATEMENT OF MAJOR PREGEL MORE PRECISELY REPRESENTS THE
REMARKS MADE AT THE OCTOBER 31, 1972 MEETING.
BECAUSE ISD TEAM MEMBERS ARE NOW CLASSIFIED ALONG WITH OTHER CIVILIAN
TRAINING SPECIALISTS AS TRAINING INSTRUCTORS, THEY REGARD OR INFER THAT
THIS WAS CONSUMMATION BY THE RESPONDENT OF THE ALLEGED THREAT MADE BY
MAJOR PREGEL AT THE OCTOBER 31, 1972 MEETING. THE DISAPPOINTMENT OF THE
ISD TEAM MEMBERS AT NOT BEING RECLASSIFIED TO A HIGHER GRADE WHEN THE
TRAINING INSTRUCTORS WERE ELEVATED TO GS-9 TWO DAYS PRIOR TO THE OCTOBER
31, 1972 MEETING IS UNDERSTANDABLE. HOWEVER, THEIR DISAPPOINTMENT IS
NOT A REASON TO FIND THAT MAJOR PREGEL'S REMARKS HAD ANYTHING TO DO WITH
THEIR RECLASSIFICATION AS TRAINING INSTRUCTORS. IN FACT, THE RECORD
CLEARLY ESTABLISHES THAT THE DECISION TO RECLASSIFY THE POSITION OF
TRAINING MADE AT A HIGHER AGENCY LEVEL FROM THAT OF MAJOR PREGEL AND
WITHOUT ANY INFORMATION OR RECOMMENDATION ON HIS PART. IN THIS
CONNECTION THERE WERE PERSONS OTHER THAN THE ISD TEAM MEMBERS INVOLVED
IN THE RECLASSIFICATION OF JOB POSITION TO TRAINING INSTRUCTOR.
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 SECTION 19(A)(1) OF THE ORDER.
UPON THE BASIS OF THE ABOVE FINDINGS, CONCLUSION AND THE ENTIRE
RECORD, I RECOMMEND THAT THE ASSISTANT SECRETARY DISMISS THE COMPLAINT.
DATED: OCTOBER 31, 1973
WASHINGTON, D.C.
/1/ TR. P. 199.
/2/ TR. PP. 150, 151.
/3/ TESTIMONY OF HAROLD HIRN, TR. P. 137, AND MAJOR PREGEL, P. 152.
/4/ NOVEMBER 1972 WAS DATE OF APPOINTMENT REFERRED TO AS ELECTION.
/5/ TR. PP. 156, 157.
/6/ TR. P. 29.
/7/ TR. P. 184 AND RESPONDENT EXHIBIT NO. 3.
/8/ TR. PP. 161, 162.
/9/ TR. PP. 35, 37, 65, 223, AND 231; RESPONDENT'S EXHIBITS NOS. 5,
6, AND 7.
/10/ TR. P. 237.
/11/ TR. PP. 71, 239.
/12/ TR. PP. 239.
/13/ TR. P. 94.
/14/ THE POSITION WAS ALSO COMMONLY REFERRED TO AS PRINCIPAL
INSTRUCTOR IN THE DEPARTMENT. TR., P. 198.
/15/ TR. P. 204.
/16/ COMPLAINT'S EXHIBIT NO. 2; TR. 203, 204, 205, 241, 242, AND
243.
/17/ TR. PP. 34 AND 68.
/18/ TR. PP. 28, 162.
/19/ THE ACCOUNT OF THE OCTOBER 31, 1972 MEETING IS IN COMPLAINANT'S
EXHIBIT NO. 1 AND RESPONDENT'S EXHIBITS NOS. 3 AND 4. APART FROM
EMPHASIS ON CERTAIN POINTS AND GESTURES MADE BY MAJOR PREGEL, THE
ACCOUNT OF MEETING IS NOT IN ESSENTIAL DISPUTE, EXCEPT THAT THERE IS NO
REFERENCE IN MAJOR PREGEL'S STATEMENTS TO REMARKS THAT THE MEMBERS COULD
GO TO THE UNION OR CONGRESS, AND THAT HE WAS AGITATED AND IN AN
EMOTIONAL STATE.
/20/ TR. PP. 45 AND 96.
/21/ COMPLAINANT HAS CITED A/SLMR DECISIONS NOS. 53 AND 242 IN
SUPPORT OF ITS ALLEGED VIOLATION OF SECTION 19(A)(1) OF THE ORDER
PARTICULARLY AS TO MAJOR PREGEL'S LACK OF INTENT TO MAKE A THREAT
AGAINST EMPLOYEES. I DO NOT FIND THE FACTS AND CIRCUMSTANCES CITED IN
THE A/SLMR DECISIONS ANALOGOUS OR APPLICABLE TO THOSE IN THIS CASE.
/22/ ARMAS JOHNSON, THOMAS RHODEMAN, AND VIVIAN TAYLOR.
/23/ TR. P. 72.
/24/ TR. PP. 205, 206.
/25/ TR. P. 204.
4 A/SLMR 342; P. 79; CASE NO. 63-4499(CU); JANUARY 25, 1974.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, AIRWAY
FACILITIES SECTOR,
AIR ROUTE TRAFFIC CONTROL CENTER,
ALBUQUERQUE, NEW MEXICO
A/SLMR NO. 342
THIS CASE INVOLVED A PETITION FOR CLARIFICATION OF UNIT, FILED BY THE
ACTIVITY, SEEKING CLARIFICATION OF AN EXISTING EXCLUSIVELY RECOGNIZED
UNIT, CONSISTING OF CLERK-STENOGRAPHERS, A SUPPLY CLERK AND A GENERAL
SUPPLY SPECIALIST. THE ACTIVITY CONTENDED THAT THE TWO
CLERK-STENOGRAPHERS ARE CONFIDENTIAL EMPLOYEES, AND THAT THE GENERAL
SUPPLY SPECIALIST IS A SUPERVISOR WITHIN THE MEANING OF THE ORDER.
UNDER THESE CIRCUMSTANCES, IT ASSERTED THAT THESE EMPLOYEES SHOULD BE
EXCLUDED FROM THE UNIT. THE INCUMBENT LABOR ORGANIZATION, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2760, AFL-CIO, CONTENDED THAT
THE EMPLOYEES DESCRIBED ABOVE SHOULD NOT BE EXCLUDED FROM THE UNIT.
THE ASSISTANT SECRETARY FOUND THAT THE TWO EMPLOYEES IN THE JOB
CLASSIFICATION OF CLERK-STENOGRAPHER WERE NOT CONFIDENTIAL EMPLOYEES
AND, THEREFORE, SHOULD NOT BE EXCLUDED FROM THE UNIT. IN THIS
CONNECTION, HE NOTED THAT THE EVIDENCE ESTABLISHED THAT NEITHER EMPLOYEE
ACTED IN A CONFIDENTIAL CAPACITY TO PERSONS WHO FORMULATE AND EFFECTUATE
MANAGEMENT POLICIES IN THE FIELD OF LABOR RELATIONS.
THE ASSISTANT SECRETARY ALSO FOUND THAT THE GENERAL SUPPLY SPECIALIST
DID NOT EXERCISE ANY SUPERVISORY AUTHORITY REQUIRING THE USE OF
INDEPENDENT JUDGMENT, NOR DID HE HAVE THE AUTHORITY EFFECTIVELY TO
RECOMMEND ANY ACTION WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER.
ACCORDINGLY, HE CONCLUDED THAT THE GENERAL SUPPLY SPECIALIST WAS NOT A
SUPERVISOR WITHIN THE MEANING OF THE ORDER.
BASED ON THE FOREGOING, THE ASSISTANT SECRETARY FOUND INSUFFICIENT
BASIS TO SUPPORT THE ACTIVITY'S POSITION THAT THE UNIT SHOULD BE
CLARIFIED TO EXCLUDE THESE AFOREMENTIONED EMPLOYEES AND HE, THEREFORE,
ORDERED THAT THE PETITION BE DISMISSED.
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
SOUTHWEST REGION, AIRWAY FACILITIES
SECTOR, AIR ROUTE TRAFFIC CONTROL
CENTER,
ALBUQUERQUE, NEW MEXICO
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2760, AFL-CIO
UPON A PETITION DULY FILED UNDER SECTION 6 OF EXECUTIVE ORDER 11491,
AS AMENDED, A HEARING WAS HELD BEFORE HEARING OFFICER JOEL D. REED. 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 AND THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2760, AFL-CIO, HEREIN CALLED AFGE, THE ASSISTANT SECRETARY FINDS:
THE ACTIVITY, DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, SOUTHWEST REGION, AIRWAY FACILITY SECTOR, AIR ROUTE
TRAFFIC CONTROL CENTER, ALBUQUERQUE, NEW MEXICO, FILED A PETITION FOR
CLARIFICATION OF UNIT (CU) SEEKING CLARIFICATION OF AN EXISTING
EXCLUSIVELY RECOGNIZED BARGAINING UNIT. THE EXCLUSIVELY RECOGNIZED
UNIT, WHICH WAS CERTIFIED ON FEBRUARY 4, 1972, INCLUDES
CLERK-STENOGRAPHERS, SUPPLY CLERK AND SUPPLY SPECIALIST." THE ACTIVITY
SEEKS TO CLARIFY THE STATUS OF THE TWO CLERK-STENOGRAPHERS IN THE UNIT
AND THE GENERAL SUPPLY SPECIALIST. IT CONTENDS THAT THE TWO
CLERK-STENOGRAPHERS ARE CONFIDENTIAL EMPLOYEES AND THAT THE GENERAL
SUPPLY SPECIALIST IS A SUPERVISOR WITHIN THE MEANING OF SECTION 2(C) OF
THE ORDER. UNDER THESE CIRCUMSTANCES, IT ASSERTS THAT THESE EMPLOYEES
SHOULD BE EXCLUDED FROM THE EXCLUSIVELY RECOGNIZED UNIT. THE AFGE TAKES
THE POSITION THAT THE EMPLOYEES DESCRIBED ABOVE SHOULD NOT BE EXCLUDED
FROM THE EXCLUSIVELY RECOGNIZED UNIT.
ONE OF THE TWO CLERK-STENOGRAPHERS THE ACTIVITY WOULD EXCLUDE FROM
THE UNIT IS A GS-4 CLERK STENOGRAPHER ON THE ACTIVITY'S PROFICIENCY AND
EVALUATION STAFF. THIS STAFF IS RESPONSIBLE FOR TRAINING AND SAFETY
PROGRAMS, AS WELL AS FOR THE TESTING AND CERTIFICATION OF TECHNICIANS.
THE PROFICIENCY DEVELOPMENT AND EVALUATION OFFICER (PDEO) WHO HEADS THE
STAFF, IN ADDITION TO THE NORMAL FUNCTIONS CONNECTED WITH HIS POSITION,
HAS, IN THE PAST, COMMENTED ON COLLECTIVE-BARGAINING AGREEMENT PROPOSALS
AND, ON ONE OCCASION, REPRESENTED THE ACTIVITY'S SECTOR MANAGER DURING
COLLECTIVE-BARGAINING NEGOTIATIONS. THE EVIDENCE REVEALS THAT THE
CLERK-STENOGRAPHER ON THE PROFICIENCY DEVELOPMENT AND EVALUATION STAFF
PERFORMS THE NORMAL DUTIES ASSOCIATED WITH THE JOB CLASSIFICATION OF
CLERK-STENOGRAPHER, INCLUDING TYPING AND FILING. FURTHER, SHE IS THE
TIME AND ATTENDANCE CLERK FOR THE STAFF, SITS IN CLOSE PROXIMITY TO THE
PDEO'S OFFICE, AND HAS ACCESS TO FILES IN THE PDEO'S OFFICE EXCEPT THOSE
WHICH ARE SEALED.
WHILE EMPLOYEES WHO ACT IN A CONFIDENTIAL CAPACITY WITH RESPECT TO
PERSONS WHO FORMULATE AND EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF
LABOR RELATIONS HAVE BEEN EXCLUDED FROM EXCLUSIVE BARGAINING UNITS AS
CONFIDENTIAL EMPLOYEES, IT ALSO HAS BEEN FOUND THAT WHERE, AS HERE, THE
EVIDENCE ESTABLISHES THAT THE ESSENTIAL BASIS FOR EXCLUSION FROM THE
UNIT IS THAT THE EMPLOYEE INVOLVED MERELY AS ACCESS TO PERSONNEL OR
STATISTICAL RECORDS, EXCLUSION FROM THE UNIT AS A CONFIDENTIAL EMPLOYEE
IS NOT WARRANTED. /1/ THE RECORD IN THE SUBJECT CASE DOES NOT ESTABLISH
THAT THE CLERK-STENOGRAPHER ON THE PROFICIENCY DEVELOPMENT AND
EVALUATION STAFF SERVES IN A CONFIDENTIAL CAPACITY TO A PERSON WHO
FORMULATES AND EFFECTUATES MANAGEMENT POLICIES IN THE FIELD OF LABOR
RELATIONS AND THAT HER INCLUSION IN THE UNIT WOULD RESULT IN A CONFLICT
OF INTEREST BETWEEN HER NORMAL DUTIES AND HER UNIT MEMBERSHIP.
ACCORDINGLY, I FIND THAT THE CLERK-STENOGRAPHER ON THE PROFICIENCY
DEVELOPMENT AND EVALUATION SHOULD NOT BE EXCLUDED FROM THE UNIT. /2/
THE OTHER DISPUTED CLERK-STENOGRAPHER, WHOM THE ACTIVITY WOULD
EXCLUDE FROM THE UNIT AS A CONFIDENTIAL EMPLOYEE, IS A GS-4 EMPLOYEE
ASSIGNED TO THE ADMINISTRATIVE AND LOGISTICS STAFF. THE RECORD REFLECTS
THAT THIS STAFF CONSISTS OF A GENERAL SUPPLY SPECIALIST, AN
ADMINISTRATIVE OFFICER, A SUPPLY CLERK, THE CLERK-STENOGRAPHER AT ISSUE,
AND A PART-TIME CLERK-STENOGRAPHER.
WHILE THE ASSISTANT SECTOR MANAGER, OR IN HIS ABSENCE, THE SECTOR
MANAGER, HAVE RATED THIS CLERK-STENOGRAPHER'S PERFORMANCE AND THE LATTER
HAS SUBSTITUTED FOR THE SECTOR MANAGER'S REGULAR SECRETARY DURING
VACATION PERIODS FOR TWO TO SIX WEEKS PER YEAR, AND, AT OTHER TIMES, HAS
ASSISTED THE SECTOR MANAGER'S SECRETARY, THE RECORD REVEALS THAT, FOR
THE MOST PART, THIS EMPLOYEE PERFORMS CLERK-STENOGRAPHIC DUTIES FOR THE
ADMINISTRATIVE OFFICER OR OTHER EMPLOYEES ASSIGNED TO THE ADMINISTRATIVE
AND LOGISTICS STAFF. IN THE PERFORMANCE OF HER REGULAR DUTIES, THE
EVIDENCE ESTABLISHES THAT THIS CLERK-STENOGRAPHER HAS ACCESS TO THE
OFFICE SAFE, BUT THAT SHE DOES NOT HAVE KNOWLEDGE OF THE CONTENTS OF THE
MATERIALS CONTAINED IN THE SAFE. FURTHER, THE RECORD REVEALS THAT THE
INCUMBENT HAS OVERHEARD THE ADMINISTRATIVE OFFICER ADVISE EMPLOYEES ON
CERTAIN ASPECTS OF THE GRIEVANCE PROCEDURE AND HAS TYPED PERFORMANCE
EVALUATIONS.
IN MY VIEW, THE EVIDENCE DOES NOT ESTABLISH THAT THIS EMPLOYEE'S
NORMAL DAY-TO-DAY DUTIES ARE OF A CONFIDENTIAL NATURE WITH RESPECT TO
PERSONS WHO FORMULATE AND EFFECTUATE MANAGEMENT POLICIES IN THE FIELD OF
LABOR RELATIONS AND THAT HER INCLUSION IN THE UNIT WOULD RESULT IN A
CONFLICT BETWEEN HER NORMAL DUTIES AND HER UNIT MEMBERSHIP. THUS,
ALTHOUGH THIS EMPLOYEE HAS, ON OCCASION, SUBSTITUTED FOR THE SECTOR
MANAGER'S REGULAR SECRETARY AND, AT OTHER TIMES, HAS ASSISTED THE SECTOR
MANAGER'S SECRETARY, THE EVIDENCE DOES NOT ESTABLISH THAT SUCH JOB
FUNCTIONS INVOLVE MORE THAN NORMAL CLERICAL DUTIES. NOR DOES THE
EVIDENCE ESTABLISH THAT THIS EMPLOYEE'S SHORT-TERM, OCCASIONAL
SUBSTITUTION FOR THE SECTOR MANAGER'S SECRETARY WAS SUCH THAT SHE
ASSUMED A CONFIDENTIAL RELATIONSHIP WITH RESPECT TO THE SECTOR MANAGER.
UNDER ALL OF THE CIRCUMSTANCES, I FIND THAT THE CLERK-STENOGRAPHER ON
THE ADMINISTRATIVE AND LOGISTICS STAFF IS NOT A CONFIDENTIAL EMPLOYEE
AND SHOULD NOT BE EXCLUDED FROM THE UNIT.
THE GENERAL SUPPLY SPECIALIST, WHOM THE ACTIVITY WOULD EXCLUDE FROM
THE UNIT AS A SUPERVISOR, ALSO IS ASSIGNED TO THE ADMINISTRATIVE AND
LOGISTICS STAFF. THE RECORD REVEALS THAT HE HAS NEVER HIRED,
TRANSFERRED, SUSPENDED, LAID OFF, RECALLED, PROMOTED, OR DISCHARGED ANY
EMPLOYEES, NOR DOES HE POSSESS THE AUTHORITY TO PERFORM ANY OF THE
AFOREMENTIONED ACTS. THE RECORD DISCLOSES THAT, ON ONE OCCASION, THE
GENERAL SUPPLY SPECIALIST RATED THE PERFORMANCE OF THE ACTIVITY'S SUPPLY
CLERK, WITH WHOM HE SHARES AN OFFICE, AND THAT AFTER THE SUPPLY CLERK
COMPLAINED ABOUT THE RATING, THE SECTOR MANAGER AND ASSISTANT MANAGER
REVIEWED THE RATING AND HAD IT CHANGED. ASIDE FROM THIS ONE INCIDENT,
THE GENERAL SUPPLY SPECIALIST HAS NEVER EVALUATED THE PERFORMANCE OF ANY
EMPLOYEE, NOR HAS HE EVER ADJUSTED ANY EMPLOYEE GRIEVANCES. THE RECORD
REFLECTS THAT MOST OF THE SUPPLY CLERK'S WORK IS OF A ROUTINE NATURE,
WITHIN ESTABLISHED AGENCY PROCEDURES, AND DOES NOT REQUIRE SPECIAL
DIRECTION. IN THIS REGARD, THE GENERAL SUPPLY SPECIALIST MAY ISSUE
ROUTINE INSTRUCTIONS ON HOW TO ORDER SPECIFIC ITEMS OR TO TYPE UP A
CERTIFICATION OF CONTRACTORS' INVOICES, IF SERVICE HAS BEEN
SATISFACTORY, OR HE MAY ROUTINELY DIRECT THE SUPPLY CLERK TO ORDER ITEMS
ON A PRIORITY BASIS.
IN MY VIEW, THE EVIDENCE HEREIN IS INSUFFICIENT TO ESTABLISH THAT THE
GENERAL SUPPLY SPECIALIST EXERCISES SUPERVISORY AUTHORITY REQUIRING USE
OF INDEPENDENT JUDGMENT, OR HAS THE AUTHORITY EFFECTIVELY TO RECOMMEND
ANY ACTION WITHIN THE MEANING OF SECTION 2(C) OF THE ORDER. RATHER, I
FIND THAT THE RECORD REVEALS THAT THE RECORD REVEALS THAT ANY AUTHORITY
EXERCISED BY THE GENERAL SUPPLY SPECIALIST IS ROUTINE IN NATURE AND DOES
NOT INCLUDE THE AUTHORITY TO MAKE EFFECTIVE RECOMMENDATIONS IN ANY OF
THE AREAS SET FORTH IN SECTION 2(C) OF THE ORDER. ACCORDINGLY, I FIND
THAT THE GENERAL SUPPLY SPECIALIST IS NOT A SUPERVISOR WITHIN THE
MEANING OF THE ORDER AND SHOULD NOT BE EXCLUDED FROM THE UNIT.
UNDER ALL OF THE CIRCUMSTANCES OUTLINED ABOVE, I FIND INSUFFICIENT
BASIS TO SUPPORT THE ACTIVITY'S POSITION THAT THE UNIT SHOULD BE
CLARIFIED TO EXCLUDE THE AFOREMENTIONED CLERK-STENOGRAPHERS AND THE
GENERAL SUPPLY SPECIALIST. THEREFORE, I SHALL DISMISS THE INSTANT CU
PETITION.
IT IS HEREBY ORDERED THAT THE PETITION IN CASE NO. 63-4499(CU) BE AND
IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 25, 1974
/1/ SEE VIRGINIA NATIONAL GUARD HEADQUARTERS, 4TH BATTALION 111TH
ARTILLERY, A/SLMR NO. 69; PORTLAND AREA OFFICE, HOUSING AND URBAN
DEVELOPMENT, A/SLMR NO. 111; UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, MARK TWAIN NATIONAL FOREST, SPRINGFIELD, MISSOURI,
A/SLMR NO. 303; DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, FLIGHT INSPECTION DISTRICT OFFICE, BATTLE CREEK,
MICHIGAN, A/SLMR NO. 313; DEPARTMENT OF THE NAVY, UNITED STATES NAVAL
STATION, ADAK, ALASKA, A/SLMR NO. 321.
/2/ COMPARE DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, AIRWAY FACILITIES SECTOR, FORT WORTH, TEXAS, A/SLMR NO.
230, WHERE CERTAIN CLERK-STENOGRAPHERS WHO PERFORMED CLERICAL,
ADMINISTRATIVE AND SECRETARIAL DUTIES FOR FIELD OFFICE CHIEFS WERE
DETERMINED TO BE CONFIDENTIAL EMPLOYEES. IN THAT CASE, THE RECORD
SUPPORTED THE AGREEMENT OF THE PARTIES THAT THE EMPLOYEES IN QUESTION
ACTED IN A CONFIDENTIAL CAPACITY AS IMMEDIATE ASSISTANTS TO THE SENIOR
MANAGEMENT OFFICIAL AT THEIR RESPECTIVE FIELD OFFICES.
4 A/SLMR 341; P. 70; CASE NO. 63-4128(CA); JANUARY 9, 1974.
U.S. DEPARTMENT OF INTERIOR,
BUREAU OF INDIAN AFFAIRS,
INDIAN AFFAIRS DATA CENTER,
ALBUQUERQUE, NEW MEXICO
A/SLMR NO. 341
THIS PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 40,
ALBUQUERQUE, NEW MEXICO (COMPLAINANT), AGAINST THE U.S. DEPARTMENT OF
INTERIOR, BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER,
ALBUQUERQUE, NEW MEXICO (RESPONDENT). THE COMPLAINT ALLEGED ESSENTIALLY
THAT THE RESPONDENT VIOLATED SECTIONS 19(A)(1), (2) AND (6) OF THE ORDER
BASED ON THE ANNOUNCEMENT AND PROMULGATION BY THE NATIONAL OFFICE OF THE
BUREAU OF INDIAN AFFAIRS OF A NEW POLICY OF INDIAN PREFERENCE IN
EMPLOYMENT IN DEROGATION OF THE RIGHTS OF NON-INDIANS; THE
CONTRAVENTION OF THE PARTIES' NEGOTIATED AGREEMENT BY PROMULGATION OF
THE NEW POLICY; AND THE RESPONDENT'S FAILURE TO CONSULT OR NEGOTIATE
WITH THE COMPLAINANT CONCERNING THE NEW POLICY.
IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE ASSISTANT
SECRETARY FOUND THAT THE RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1)
AND (2) OF THE ORDER FOR THE REASONS ALLEGED. THUS, IT WAS NOTED THAT
THE PROMULGATION OF THE NEW NATIONAL OFFICE POLICY WAS NOT AN ACT OF THE
RESPONDENT ACTIVITY NOR AN ACT OVER WHICH IT HAD CONTROL. FURTHER, THE
EVIDENCE DID NOT SUPPORT THE CONTENTION THAT THE MERE ANNOUNCEMENT OF
THE POLICY INTERFERED WITH, RESTRAINED, OR COERCED ANY EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS ASSURED BY THE ORDER. NOR WAS THERE ANY
EVIDENCE OF DISCRIMINATION BASED ON UNION STATUS OR UNION ACTIVITIES.
THE ASSISTANT SECRETARY ALSO FOUND, IN AGREEMENT WITH THE
ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT VIOLATED SECTION 19(A)(6)
OF THE ORDER BASED ON ITS FAILURE TO MEET AND CONFER WITHIN THE MEANING
OF SECTION 11(A) TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, AS TO
THE PROCEDURES THE RESPONDENT'S MANAGEMENT INTENDED TO OBSERVE IN
EFFECTUATING THE NEW POLICY AND ON THE IMPACT OF SUCH POLICY ON
ADVERSELY AFFECTED EMPLOYEES. MOREOVER, IN THE ASSISTANT SECRETARY'S
VIEW, SUCH VIOLATIVE CONDUCT HAD A RESTRAINING INFLUENCE UPON UNIT
EMPLOYEES AND HAD A CONCOMITANT COERCIVE EFFECT UPON THEIR RIGHTS
ASSURED BY THE ORDER. ACCORDINGLY, HE FOUND THAT THE RESPONDENT'S
IMPROPER CONDUCT HEREIN ALSO VIOLATED SECTION 19(A)(1) OF THE ORDER.
U.S. DEPARTMENT OF INTERIOR,
BUREAU OF INDIAN AFFAIRS,
INDIAN AFFAIRS DATA CENTER,
ALBUQUERQUE, NEW MEXICO
AND
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 40,
ALBUQUERQUE, NEW MEXICO
ON SEPTEMBER 26, 1973, ADMINISTRATIVE LAW JUDGE MILTON KRAMER ISSUED
HIS REPORT AND RECOMMENDATION IN THE ABOVE-ENTITLED PROCEEDING, FINDING,
AMONG OTHER THINGS, THAT THE RESPONDENT, U.S. DEPARTMENT OF INTERIOR,
BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW
MEXICO, 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 RECOMMENDATION. 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 THIS CASE, I HEREBY ADOPT THE
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE ADMINISTRATIVE LAW
JUDGE, TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGING THAT THE RESPONDENT VIOLATED SECTIONS
19(A)(1), (2) AND (6) WAS BASED UPON THE ANNOUNCEMENT AND PROMULGATION
OF A NEW POLICY BY THE BUREAU OF INDIAN AFFAIRS NATIONAL OFFICE OF
INDIAN PREFERENCE IN EMPLOYMENT IN DEROGATION OF THE RIGHTS OF
NON-INDIANS; THE CONTRAVENTION OF THE PARTIES' NEGOTIATED AGREEMENT BY
PROMULGATION OF THE NEW POLICY; AND THE RESPONDENT'S FAILURE TO CONSULT
OR NEGOTIATE WITH THE COMPLAINANT CONCERNING THE NEW POLICY.
THE ADMINISTRATIVE LAW JUDGE RECOMMENDED THAT THE 19(A)(1) AND (2)
ALLEGATIONS BE DISMISSED. HE CONCLUDED, HOWEVER, THAT THE RESPONDENT'S
CONDUCT HEREIN CONSTITUTED A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
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 IS THE EXCLUSIVE REPRESENTATIVE OF THE RESPONDENT
ACTIVITY'S EMPLOYEES. A 2-YEAR NEGOTIATED AGREEMENT BETWEEN THE PARTIES
WAS APPROVED ON NOVEMBER 18, 1970, AND A SUPPLEMENTAL AGREEMENT WAS
EXECUTED ON JANUARY 5, 1971. IN AUGUST, 1972, THE RESPONDENT NOTIFIED
THE COMPLAINANT OF ITS DESIRE TO TERMINATE THE EXISTING AGREEMENT ON
NOVEMBER 18, 1972. SUBSEQUENTLY, ON NOVEMBER 21, 1972, THE PARTIES
SIGNED A MEMORANDUM OF UNDERSTANDING EXTENDING THE OLD AGREEMENT UNTIL A
NEW AGREEMENT HAD BEEN NEGOTIATED AND APPROVED.
THE NEGOTIATED AGREEMENT CONTAINS THREE PROVISIONS WHICH ARE
PERTINENT TO THE INSTANT CASE:
SECTION 1.7 - CONTROLLING AUTHORITY
IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THE AGREEMENT,
EMPLOYER AND NFFE LOCAL 40
SHALL BE GOVERNED BY THE PROVISIONS OF ANY EXISTING OR FUTURE LAWS,
EXECUTIVE ORDERS,
INCLUDING E.O. 11491, STANDARDS OF CONDUCT FOR EMPLOYEE
ORGANIZATIONS, CODE OF FAIR LABOR
PRACTICES AND REGULATIONS, INCLUDING POLICIES SET FORTH IN THE FPM
AND REGULATIONS OF THE
DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS
DATA CENTER, WHICH MAY BE
APPLICABLE. THIS AGREEMENT AND ANY SUPPLEMENTARY AGREEMENTS,
MEMORANDAS OF UNDERSTANDING AND
AMENDMENTS SHALL BE AT ALL TIMES APPLIED SUBJECT TO SUCH LAWS,
EXECUTIVE ORDER, REGULATIONS
AND POLICIES. HOWEVER, THE PARTIES AGREE THAT NFFE LOCAL 40 HAS THE
RIGHT TO NEGOTIATE WITHIN
THE SCOPE OF E. O. 11491 ON ANY AND ALL PROBLEMS OR MATTERS DEFINED
HEREINAFTER AS NEGOTIABLE
IN THIS AGREEMENT.
SECTION 3.1 - MANAGEMENT RIGHTS
. . . HOWEVER, EMPLOYER AGREES TO CONSULT AND/OR NEGOTIATE WITH NFFE
LOCAL NO. 40 PRIOR TO
MAKING ANY CHANGES IN PERSONNEL POLICIES, PRACTICES AND PROCEDURES
THAT ARE APPLICABLE TO
EMPLOYEES COVERED BY THE AGREEMENT. EMPLOYER FURTHER AGREES TO
FURNISH TWO COPIES OF ANY
PROPOSED CHANGES IN AFOREMENTIONED PERSONNEL POLICIES, PRACTICES AND
PROCEDURES TO NFFE LOCAL
NO. 40 FOR REVIEW AND CONSULTATION AT LEAST 10 WORK DAYS PRIOR TO THE
PROPOSED EFFECTIVE DATE.
ARTICLE 7.1A - PROMOTIONS
. . . CONSIDERATION WILL BE MADE WITHOUT REGARD TO ANY NON-MERIT
FACTORS, SUCH AS RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, POLITICS, PHYSICAL HANDICAP,
FAMILY RELATIONSHIPS,
MARITAL STATUS, PERSONAL FAVORITISM, AGE OR MEMBERSHIP IN AN EMPLOYEE
ORGANIZATION . . .
ON JUNE 23, 1972, THE SECRETARY OF THE INTERIOR ANNOUNCED HIS
APPROVAL OF THE BUREAU OF INDIAN AFFAIRS POLICY TO EXTEND INDIAN
PREFERENCE TO TRAINING AND TO FILLING VACANCIES, BY ORIGINAL
APPOINTMENT, REINSTATEMENT OR PROMOTION. NOTIFICATION OF THE NEW POLICY
WAS SENT TO ALL BUREAU FIELD OFFICES, INCLUDING THE RESPONDENT ACTIVITY.
THE NOTICE INDICATED THE NEW POLICY WOULD BECOME EFFECTIVE IMMEDIATELY
WITHIN THE BUREAU OF INDIAN AFFAIRS AND WAS TO BE INCORPORATED INTO ALL
EXISTING PROGRAMS, INCLUDING THE PROMOTION PROGRAM. IT STATED ALSO THAT
CAREFUL ATTENTION MUST BE GIVEN TO PROTECTING THE RIGHTS OF NON-INDIAN
EMPLOYEES. ON JUNE 28, 1972, THE RESPONDENT ADDRESSED A MEMORANDUM TO
"ALL EMPLOYEES" QUOTING THE ABOVE NOTICE IN ITS ENTIRETY. THEREAFTER,
THE DEPARTMENT AND THE BUREAU ISSUED ADDITIONAL INSTRUCTIONS ON
IMPLEMENTING THE NEW POLICY, INCLUDING SOME WHICH INDICATED THAT THE
IMPACT OF THE NEW POLICY REQUIRED A SPECIAL SENSITIVITY TO ASSURE
EQUITABLE APPLICATION OF THE PREFERENCE POLICY WITHIN PRESCRIBED LIMITS.
THE RESPONDENT AND THE COMPLAINANT HAD NUMEROUS CONVERSATIONS ABOUT THE
NEW POLICY AND ALSO ABOUT THE COMPLAINANT'S SUGGESTIONS CONCERNING WAYS
TO ALLEVIATE THE NEW POLICY'S ADVERSE EFFECT ON NON-INDIANS. THROUGHOUT
THESE CONVERSATIONS, HOWEVER, THE RESPONDENT'S PERSONNEL OFFICER
MAINTAINED THAT HE WAS WITHOUT AUTHORITY TO DO ANYTHING BECAUSE THE NEW
POLICY LEFT HIM NO DISCRETION AND NO ROOM FOR NEGOTIATION.
WITH RESPECT TO THE ALLEGED VIOLATION OF SECTION 19(A)(1), THE
COMPLAINANT CONTENDS THAT THE ORDER WAS VIOLATED IN THIS REGARD BY
VIRTUE OF THE NATIONAL OFFICE'S PROMULGATION OF THE NEW AND EXPANDED
POLICY OF INDIAN PREFERENCE IN DEROGATION OF THE RIGHTS OF NON-INDIANS.
IN THIS CONNECTION, I AGREE WITH THE CONCLUSION OF THE ADMINISTRATIVE
LAW JUDGE THAT THE PROMULGATION OF THE NEW NATIONAL OFFICE POLICY WAS
NOT AN ACT OF THE RESPONDENT ACTIVITY NOR AN ACT OVER WHICH IT HAD
CONTROL. ALSO, I CONCUR IN HIS FINDING THAT THE RECORD FAILS TO SUPPORT
THE COMPLAINANT'S CONTENTION THAT THE MERE ANNOUNCEMENT OF THE POLICY
INTERFERED WITH, RESTRAINED, OR COERCED ANY EMPLOYEES IN THE EXERCISE OF
THEIR RIGHTS ASSURED BY THE ORDER. ACCORDINGLY, I ADOPT THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION TO DISMISS THIS ALLEGED
SECTION 19(A)(1) VIOLATION.
WITH REGARD TO THE COMPLAINANT'S ALLEGATION THAT THE RESPONDENT
VIOLATED SECTION 19(A)(2), I AGREE WITH THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT WHILE THERE WAS DISCRIMINATION AGAINST NON-INDIAN
EMPLOYEES IN REGARD TO PROMOTION AND OTHER CONDITIONS OF EMPLOYMENT AS A
RESULT OF THE NEW NATIONAL OFFICE POLICY, SUCH DISCRIMINATION HAD NO
RELATIONSHIP TO UNION STATUS OR UNION ACTIVITIES. ACCORDINGLY, I ADOPT
THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION THAT DISMISSAL OF THE
SECTION 19(A)(2) ALLEGATION IS WARRANTED.
WITH REGARD TO THE RESPONDENT'S ALLEGED REFUSAL TO "CONSULT OR
NEGOTIATE" CONCERNING THE NEW POLICY, THE ADMINISTRATIVE LAW JUDGE FOUND
THAT THE RESPONDENT VIOLATED SECTION 19(A)(6) OF THE ORDER BY TAKING THE
POSITION THAT IT WAS WITHOUT AUTHORITY TO NEGOTIATE AT THE LOCAL LEVEL
ON THE IMPACT OF THE NEW POLICY.
IN PRIOR DECISIONS IT HAS BEEN HELD THAT NOTWITHSTANDING THE FACT
THAT THERE IS NO OBLIGATION TO MEET AND CONFER ON A PARTICULAR
MANAGEMENT DECISION, AN EXCLUSIVE REPRESENTATIVE SHOULD BE AFFORDED THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSISTENT WITH LAW AND
REGULATIONS, AS TO THE PROCEDURES MANAGEMENT INTENDED TO OBSERVE IN
EFFECTUATING ITS DECISION, AND AS TO THE IMPACT OF SUCH DECISION ON
THOSE EMPLOYEES ADVERSELY AFFECTED. /1/ AS NOTED ABOVE, IN THE INSTANT
CASE, THE CHANGE IN PERSONNEL PRACTICES RESULTING FROM A NEW POLICY
ISSUED BY THE NATIONAL OFFICE OF THE BUREAU OF INDIAN AFFAIRS WAS NOT AN
ACT OF THE RESPONDENT ACTIVITY, NOR AN ACT OVER WHICH IT HAD CONTROL.
MOREOVER, SECTION 1.7 OF THE PARTIES' NEGOTIATED AGREEMENT PROVIDED, IN
PERTINENT PART, THAT ALL PARTIES TO THE AGREEMENT WOULD BE GOVERNED BY
FUTURE POLICIES SET FORTH IN REGULATIONS OF THE DEPARTMENT OF THE
INTERIOR, BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER, WHICH
MAY BE APPLICABLE. UNDER THESE CIRCUMSTANCES, I FIND THAT THERE WAS NO
OBLIGATION HEREIN TO MEET AND CONFER WITH THE RESPONDENT'S MANAGEMENT
INTENDED TO OBSERVE IN EFFECTUATING THE NEW POLICY AND ON THE IMPACT OF
SUCH POLICY ON ADVERSELY AFFECTED EMPLOYEES. IN THIS LATTER REGARD, I
FIND, IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE
RESPONDENT'S FAILURE TO MEET AND CONFER ON THE ABOVE-NOTED MATTERS
WITHIN THE MEANING OF SECTION 11(A) CONSTITUTED A VIOLATION OF SECTION
19(A)(6) OF THE ORDER. FURTHER, I FIND THAT THE RESPONDENT'S IMPROPER
REFUSAL TO MEET AND CONFER WITH THE COMPLAINANT NECESSARILY HAD A
RESTRAINING INFLUENCE UPON THE 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.
HAVING FOUND THAT THE RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT
PROHIBITED IN SECTION 19(A)(1) AND (6) 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 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 U.S. DEPARTMENT OF
INTERIOR, BUREAU OF INDIAN AFFAIRS, INDIAN AFFAIRS DATA CENTER,
ALBUQUERQUE, NEW MEXICO, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, WITH THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL
40, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, CONCERNING THE PROCEDURES
MANAGEMENT INTENDS TO OBSERVE IN EFFECTUATING THE REQUIREMENTS OF THE
NEW POLICY OF INDIAN PREFERENCE, AND CONCERNING THE IMPACT OF SUCH
POLICY ON ADVERSELY AFFECTED EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE
EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 40, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
CONCERNING THE PROCEDURES MANAGEMENT INTENDS TO OBSERVE IN EFFECTUATING
THE REQUIREMENTS OF THE NEW POLICY OF INDIAN PREFERENCE, AND CONCERNING
THE IMPACT OF SUCH POLICY ON ADVERSELY AFFECTED EMPLOYEES.
(B) POST AT THE U.S. DEPARTMENT OF INTERIOR, BUREAU OF INDIAN
AFFAIRS, INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO, 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 EXECUTIVE OFFICER OF
THE RESPONDENT 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 EXECUTIVE
OFFICER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL. /2/
(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 A
VIOLATION OF SECTION 19(A)(2) AND ADDITIONAL VIOLATIONS OF SECTION
19(A)(1) AND (6), BE, AND IT HEREBY IS, DISMISSED.
DATED, WASHINGTON, D.C.
JANUARY 9, 1974
/1/ SEE UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND
SURGERY, GREAT LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289 AND
FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 329. SEE
ALSO VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, FLRC
NO. 71A-31, AND NAVAL PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, FLRC NO.
71A-56.
/2/ AT FOOTNOTE 10 OF HIS REPORT AND RECOMMENDATION, THE
ADMINISTRATIVE LAW JUDGE NOTED THAT HE HAD "QUALMS" ABOUT THE
ADVISABILITY OF THE POSTING OF A NOTICE IN THIS CASE. I FIND THAT,
UNDER THE CIRCUMSTANCES OF THIS CASE, THE POSTING OF A REMEDIAL NOTICE
TO EMPLOYEES WILL EFFECTUATE THE PURPOSES AND POLICIES OF THE ORDER.
WE WILL NOT REFUSE TO MEET AND CONFER IN GOOD FAITH TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 40, OR ANY OTHER EXCLUSIVE REPRESENTATIVE
CONCERNING THE PROCEDURES MANAGEMENT INTENDS TO OBSERVE IN EFFECTUATING
THE REQUIREMENTS OF THE NEW POLICY OF INDIAN PREFERENCE, AND CONCERNING
THE IMPACT OF SUCH POLICY ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL, UPON REQUEST, MEET AND CONFER IN GOOD FAITH, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, WITH THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 40, OR ANY OTHER EXCLUSIVE REPRESENTATIVE,
CONCERNING THE PROCEDURES MANAGEMENT INTENDS TO OBSERVE IN EFFECTUATING
THE REQUIREMENTS OF THE NEW POLICY OF INDIAN PREFERENCE, AND CONCERNING
THE IMPACT OF SUCH POLICY ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED THEM BY
THE EXECUTIVE ORDER.
DATED:
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 2200, FEDERAL OFFICE BUILDING, 911 WALNUT STREET, KANSAS
CITY, MISSOURI, 64106.
U.S. DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS,
INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO,
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 40,
BEFORE: MILTON KRAMER, ADMINISTRATIVE LAW JUDGE
APPEARANCES:
LINDA MIZER
405 CONCHAS CT., N.E.
ALBUQUERQUE, NEW MEXICO 87123
ALICE SMITH
11504 MARQUETTE, N.E.,
ALBUQUERQUE, NEW MEXICO 87123
GEORGE CROSS
AND
CARL MCMULLEN
P. O. BOX 2066
500 GOLD ST., S.W.
ALBUQUERQUE, NEW MEXICO 87103
SEPTEMBER 26, 1973
U.S. DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS,
INDIAN AFFAIRS DATA CENTER, ALBUQUERQUE, NEW MEXICO,
AND
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 40,
THIS CASE ARISES UNDER EXECUTIVE ORDER 11491. IT WAS INITIATED BY A
COMPLAINT DATED OCTOBER 28, 1972 SIGNED BY THE THEN PRESIDENT OF LOCAL
40 AND FILED OCTOBER 31, 1972. THE COMPLAINT ALLEGES VIOLATIONS OF
SECTIONS 19(A)(1), (2), AND (6) OF THE EXECUTIVE ORDER BY RESPONDENT.
THE VIOLATION OF SECTION 19(A)(1) WAS ALLEGED TO CONSIST OF A
PROMULGATION BY THE NATIONAL OFFICE OF THE BUREAU OF A NEW POLICY OF
INDIAN PREFERENCE IN EMPLOYMENT IN DEROGATION OF THE RIGHTS OF
NON-INDIANS. THE VIOLATION OF SECTION 19(A)(2) WAS ALLEGED TO CONSIST
OF THE PROMULGATION OF THE NEW POLICY BEING IN CONTRAVENTION OF THE
NEGOTIATED AGREEMENT BETWEEN LOCAL 40 AND THE RESPONDENT DATA CENTER.
THE VIOLATION OF SECTION 19(A)(6) WAS ALLEGED TO CONSIST OF RESPONDENT
REFUSING TO CONSULT OR NEGOTIATE WITH LOCAL 40 CONCERNING THE NEW POLICY
OF PERSONAL PRACTICES.
THE AREA ADMINISTRATOR INVESTIGATED THE COMPLAINT IN THIS CASE AND IN
CASE NO. 63-4021(CA). ON JANUARY 19, 1973 HE ISSUED A NOTICE OF HEARING
IN THIS CASE TO BE HELD MARCH 27, 1973. ON FEBRUARY 15, 1973 HE ISSUED
AN ORDER CONSOLIDATING THIS CASE FOR HEARING WITH CASE NO. 63-4021(CA)
AND THE SAME DAY ISSUED AN AMENDED NOTICE OF HEARING OF BOTH CASES ON
MARCH 27, 1973.
HEARINGS WERE HELD BEGINNING ON MARCH 27, 1973 IN ALBUQUERQUE, NEW
MEXICO. AFTER THE HEARING IN CASE NO. 63-4021(CA) HAD PROGRESSED FOR A
WHILE THE PARTIES ADVISED ME THAT THEY HAD AGREED ON A SETTLEMENT OF
THAT CASE AND THAT THE COMPLAINANT WOULD REQUEST THE REGIONAL
ADMINISTRATOR FOR LEAVE TO WITHDRAW THAT COMPLAINT. /1/ THE HEARING
THEN COMMENCED ON THIS CASE ON MARCH 27, 1973 AND CONCLUDED ON MARCH 28,
1973. NEITHER SIDE WAS REPRESENTED BY COUNSEL. MOTIONS FOR EXTENSION
OF TIME, CONSENTED TO, WERE GRANTED FOR GOOD CAUSE, AND THE TIME FOR
FILING BRIEFS WAS EXTENDED TO MAY 23, 1973. TIMELY BRIEFS WERE FILED,
COUNSEL FILING ONE FOR COMPLAINANT.
THE COMPLAINANT IS THE EXCLUSIVE REPRESENTATIVE OF RESPONDENT'S
NON-SUPERVISORY, NON-MANAGERIAL, AND NON-PROFESSIONAL EMPLOYEES. /2/
IN THE INDIAN REORGANIZATION ACT OF 1934 (25 USC 462 ET SEQ., 48
STAT. 985), CONGRESS PROVIDED (IN 25 USC 472) THAT QUALIFIED INDIANS MAY
BE APPOINTED, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, TO POSITIONS IN
THE BUREAU OF INDIAN AFFAIRS AND SHOULD HAVE PREFERENCE IN APPOINTMENT
TO VACANCIES IN SUCH POSITIONS. FOR SOME TIME THIS WAS NOT CONSTRUED
OFFICIALLY AND WAS UNDERSTOOD BY SOME TO CALL FOR PREFERENCE OF INDIANS
ONLY IN INITIAL APPOINTMENTS IN THE BUREAU.
THE COLLECTIVE BARGAINING AGREEMENT BETWEEN COMPLAINANT AND
RESPONDENT PROVIDED, UNDER THE CAPTION "PROMOTIONS", THAT "CONSIDERATION
WILL BE MADE WITHOUT REGARD TO ANY NON-MERIT FACTOR SUCH AS RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN . . . ." /3/ THE AGREEMENT PROVIDED ALSO
THAT IN ITS ADMINISTRATION THE ACTIVITY AND THE LOCAL WOULD BE GOVERNED
BY EXISTING OR FUTURE LAWS, EXECUTIVE ORDERS, AND DEPARTMENTAL
REGULATIONS. /4/ IT PROVIDED ALSO /5/ THAT THE ACTIVITY AGREED TO
"CONSULT AND/OR NEGOTIATE" WITH LOCAL 40 PRIOR TO MAKING ANY CHANGES IN
PERSONNEL POLICIES OR PRACTICES, AND THAT IT WOULD FURNISH THE LOCAL
WITH TWO COPIES OF ANY PROPOSED CHANGES IN POLICIES OR PRACTICES AT
LEAST TEN DAYS IN ADVANCE OF THEIR EFFECTIVE DATE.
ON JUNE 23, 1972 THE COMMISSIONER OF THE BUREAU SENT A TELEGRAPHIC
COMMUNICATION TO ITS FIELD OFFICES, INCLUDING RESPONDENT, ANNOUNCING A
NEW POLICY CONCERNING INDIAN PREFERENCE. /6/ IT STATED THAT THE NEW
SECRETARY OF THE INTERIOR HAD APPROVED THE BUREAU'S POLICY TO EXTEND THE
INDIAN PREFERENCE, EFFECTIVE IMMEDIATELY, TO TRAINING AND TO FILLING
VACANCIES WHETHER BY ORIGINAL APPOINTMENT, REINSTATEMENT, OR PROMOTION.
IT INSTRUCTED THAT ALL EMPLOYEES AND RECOGNIZED UNIONS SHOULD BE
IMMEDIATELY NOTIFIED OF THE POLICY. IT STATED ALSO THAT CAREFUL
ATTENTION MUST BE GIVEN TO PROTECTING THE RIGHTS OF NON-INDIAN
EMPLOYEES. ON JUNE 28, 1972 THE PERSONNEL OFFICER OF THE RESPONDENT
ACTIVITY, CARL MCMULLEN, ADDRESSED A MEMORANDUM TO "ALL EMPLOYEES"
QUOTING IN ITS ENTIRETY THE COMMUNICATION FROM THE COMMISSIONER.
FROM TIME TO TIME THEREAFTER THE DEPARTMENT AND BUREAU ISSUED
ADDITIONAL INSTRUCTIONS IMPLEMENTING THE NEW POLICY. IN SOME OF THESE
THE DEPARTMENT RECOGNIZED, AND THE BUREAU COMMUNICATED TO ITS FIELD
OFFICES, THAT THE IMPACT OF THE NEW POLICY REQUIRED A SPECIAL
SENSITIVITY TO ASSURE THE APPLICATION OF THE PREFERENCE ON AN EQUITABLE
BASIS WITHIN THE PRESCRIBED LIMITS.
THE PERSONNEL OFFICER OF THE RESPONDENT ACTIVITY WAS OF THE VIEW THAT
THE NEWLY ANNOUNCED NATIONAL POLICY OF THE BUREAU AND ITS IMPLEMENTATION
WAS VIRTUALLY AN ABSOLUTE BAR TO THE APPOINTMENT, PROMOTION, OR
REINSTATEMENT OF NON-INDIANS TO ANY POSITION. THE ONLY SITUATION IN
WHICH HE BELIEVED A NON-INDIAN COULD BE APPOINTED OR PROMOTED WAS ONE IN
WHICH NO QUALIFIED INDIAN COULD BE FOUND FOR A POSITION EVEN AFTER THE
POSITION WAS "ENGINEERED", I.E., NO QUALIFIED INDIAN COULD BE FOUND
MEETING THE SPECIFIED QUALIFICATIONS, THE PRESCRIBED QUALIFICATIONS WERE
THEN LOWERED, PERHAPS SEVERAL TIMES, UNTIL THEY COULD BE LOWERED NO
MORE, AND STILL NO QUALIFIED INDIAN COULD BE FOUND. THUS HE TOOK THE
POSITION THAT THERE WAS NOTHING ABOUT THE NEW POLICY THAT COULD BE THE
SUBJECT OF MEANINGFUL CONSULTATION OR NEGOTIATION, BECAUSE HE HAD NO
AUTHORITY BUT TO APPLY THE MANDATE THAT CAME FROM A HIGHER LEVEL. HE
DID NOT REFUSE TO TALK TO REPRESENTATIVES OF LOCAL 40 AND HAD MANY
CONVERSATIONS WITH THE PRESIDENT AND VICE-PRESIDENT OF COMPLAINANT ABOUT
THE NEW POLICY ON INDIAN PREFERENCE, BUT CONSISTENTLY TOOK THE POSITION
HE WAS WITHOUT AUTHORITY TO AGREE TO ANYTHING ABOUT IT BECAUSE IT LEFT
HIM NO DISCRETION.
COMPLAINANT SUGGESTED THAT NON-INDIANS, FACED WITH A VIRTUAL BAR TO
PROMOTION AND EVEN ANY OTHER CHANGE IN POSITIONS, HAVE TRAINING FOR AND
BE GIVEN ASSISTANCE IN "OUTPLACEMENT" OR "LATERAL TRANSFER", I.E.,
TRAINING FOR AND ASSISTANCE IN OBTAINING POSITIONS OUTSIDE THE BUREAU OF
INDIAN AFFAIRS IN THE DEPARTMENT OF THE INTERIOR OR EVEN OUTSIDE THE
DEPARTMENT. THE NATIONAL OFFICE OF THE BUREAU ADOPTED A PROGRAM FOR
PLACING INDIANS IN POSITIONS IN THE FEDERAL GOVERNMENT OUTSIDE THE
BUREAU. THE COMPLAINANT SUGGESTED TO MCMULLEN A SIMILAR PROGRAM FOR
NON-INDIAN EMPLOYEES OF RESPONDENT. THE BUREAU PROPOSED AN OUTPLACEMENT
PROGRAM FOR NON-INDIANS AND SOLICITED COMMENTS ON ITS PROPOSED PROGRAM.
LOCAL 40 WAS ASKED FOR ITS COMMENTS BUT DID NOT OFFER ANY. MCMULLEN WAS
OF THE VIEW THAT SINCE SUCH A NATIONAL PROPOSED PROGRAM WAS UNDER
CONSIDERATION, HE DID NOT HAVE AUTHORITY TO NEGOTIATE SUCH A PROGRAM ON
A LOCAL BASIS. HOWEVER, HE DID DISCUSS THE SUBJECT WITH REPRESENTATIVES
OF LOCAL 40, BUT TOOK THE POSITION HE WAS WITHOUT AUTHORITY TO DO
ANYTHING ABOUT IT. THE BUREAU'S PROPOSED PROGRAM WAS NOT PLACED IN
EFFECT.
MCMULLEN WAS OF THE VIEW THAT THERE WAS NO ROOM BUT FOR ONE
INTERPRETATION OF THE DIRECTIVE ON THE NEW INDIAN PREFERENCE POLICY AND
THUS NO ROOM FOR NEGOTIATION. COMPLAINANT INTRODUCED SEVERAL
PROMOTIONAL OPPORTUNITY BULLETINS OF OTHER OFFICES OF THE BUREAU FOR THE
PURPOSE OF SHOWING DIFFERING INTERPRETATIONS OF THE NEW POLICY BY
DIFFERENT OFFICES. /7/ I FIND THAT THE SEEMING SUBSTANTIVE DIFFERENCES
IN THOSE BULLETINS WERE DUE MORE TO IMPRECISION IN DRAFTSMANSHIP THAN TO
DIFFERENCES IN APPLYING THE NEW POLICY. THE CONTRARY CONCLUSION, URGED
BY COMPLAINANT, WOULD SHOW A FLAT VIOLATION OF THE POLICY BY THE OTHER
OFFICES ISSUING THE BULLETINS, A CONCLUSION I CANNOT REACH ON THIS
RECORD.
ALTHOUGH THE COMPLAINT ASSERTS THAT RESPONDENT VIOLATED THREE
PROVISIONS OF THE EXECUTIVE ORDER, ONLY ONE OF SUCH CONTENTIONS WAS
SUPPORTED AT THE HEARING. THE FIRST CONTENTION IN THE COMPLAINT WAS
THAT SECTION 19(A)(1) OF THE ORDER WAS VIOLATED BY THE PROMULGATION BY
THE NATIONAL OFFICE OF THE NEW AND EXPANDED POLICY OF INDIAN PREFERENCE
IN DEROGATION OF THE RIGHTS OF NON-INDIANS. THE SECOND CONTENTION WAS
THAT SECTION 19(A)(2) WAS VIOLATED BECAUSE THE PROMULGATION OF THE NEW
POLICY WAS IN CONTRAVENTION OF THE COLLECTIVE BARGAINING AGREEMENT
BETWEEN THE PARTIES. I FIND BOTH THESE CONTENTIONS TO BE WITHOUT MERIT.
THE PROMULGATION OF THE NEW NATIONAL POLICY WAS NOT AN ACT OF THE
RESPONDENT NOR AN ACT OVER WHICH IT HAD ANY CONTROL. THE PROMULGATION
OF THE NEW POLICY WAS, IN SUBSTANCE, AN ANNOUNCEMENT OF A NEW
UNDERSTANDING OF 28 USC 472 OF THE INDIAN REORGANIZATION ACT OF 1934.
/8/ IF THE ANNOUNCEMENT OF THE POLICY AND THE NEW INTERPRETATION OF THE
STATUTE HAD ANY COERCIVE EFFECT ON ANY OF RESPONDENT'S EMPLOYEES, SUCH
COERCION WAS THE RESULT OF LEGISLATION, NOT OF UNLAWFUL CONDUCT BY
RESPONDENT. AND THE RECORD DOES NOT SUPPORT ANY CONTENTION THAT THE
MERE ANNOUNCEMENT OF THE POLICY INTERFERES WITH, RESTRAINED, OR COERCED
ANY EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ORDER, OR HAD A
TENDENCY TO DO SO. THEREFORE, THERE WAS NO VIOLATION OF SECTION
19(A)(1) FOR THE REASON GIVEN IN THE COMPLAINT.
COMPLAINANT'S RELIANCE IN ITS BRIEF ON VETERANS ADMINISTRATION
HOSPITAL, CHARLESTON, S. CAROLINA, A/SLMR NO. 87, FOR THE PROPOSITION
THAT A VIOLATION OF SECTION 19(A)(6), ASSUMING THERE WAS ONE, ALWAYS
IMPLIES A VIOLATION OF SECTION 19(A)(1), IS MISPLACED. IN THAT CASE,
THE ACTIVITY UNILATERALLY CHANGED AGREED-UPON CONDITIONS OF EMPLOYMENT.
THAT WAS FOUND TO CONSTITUTE A VIOLATION OF 19(A)(1) AS WELL AS
19(A)(6). IN THIS CASE THE COMPLAINT DOES NOT ALLEGE THAT THE REFUSAL
TO BARGAIN WAS IN VIOLATION OF SECTION 19(A)(1), AND, FOR THAT REASON, I
DO NOT CONSIDER WHETHER IT WAS SINCE IN THE LIGHT OF MY ULTIMATE
CONCLUSIONS IT IS UNNECESSARY TO DO SO. THERE IS NO INDICATION OR
CONTENTION THAT RESPONDENT REFUSED TO BARGAIN ABOUT ANYTHING ELSE.
NOR WAS THERE A VIOLATION OF SECTION 19(A)(2). TO BE SURE, THERE WAS
DISCRIMINATION AGAINST NON-INDIAN EMPLOYEES IN REGARD TO PROMOTION AND
OTHER CONDITIONS OF EMPLOYMENT, BUT THE DISCRIMINATION HAD NO
RELATIONSHIP TO UNION STATUS OR ACTIVITIES. THERE WAS EVIDENCE THAT
UNION MEMBERSHIP WAS DISCOURAGED, BUT IT WAS NOT THE EXISTENCE OF THE
DISCRIMINATION THAT DISCOURAGED IT. THE EVIDENCE WAS THAT IT WAS THE
ALLEGED INABILITY OF THE UNION TO ENGAGE IN MEANINGFUL DISCUSSIONS WITH
RESPONDENT CONCERNING THE DISCRIMINATION AND ITS IMPACT THAT DISCOURAGED
MEMBERSHIP.
THE COMPLAINT ALLEGES A VIOLATION OF SECTION 19(A)(2) BECAUSE THE
DISCRIMINATION WAS A VIOLATION OF THE NEGOTIATED AGREEMENT. BUT THE
AGREEMENT ITSELF PROVIDED THAT IT WAS SUBJECT TO EXISTING LAWS AND
DEPARTMENTAL REGULATIONS. SINCE THE DISCRIMINATION WAS PREDICATED ON
LAW AND DEPARTMENTAL REGULATIONS, IT WAS NOT IN VIOLATION OF THE
AGREEMENT. AND SECTION 12(A) OF THE ORDER PROVIDES THAT EVERY AGREEMENT
IS SUBJECT TO LAWS AND REGULATIONS OF APPROPRIATE AUTHORITIES AND
SUBSEQUENT AGENCY POLICIES AND REGULATIONS.
THERE WAS A VIOLATION OF SECTION 19(A)(6) OF THE ORDER.
MCMULLEN, THE PERSONNEL OFFICER, WAS THE RESPONDENT'S SPOKESMAN. THE
EVIDENCE SHOWS THAT ALTHOUGH HE DID NOT REFUSE TO TALK WITH
REPRESENTATIVES OF THE UNION AND INDEED HAD MANY CONVERSATIONS WITH THEM
CONCERNING THE NEW POLICY, HE TOOK THE ADAMANT POSITION THAT HE WAS
WITHOUT AUTHORITY TO NEGOTIATE OR ENGAGE IN ANY MEANINGFUL CONSULTATION
CONCERNING IT. TO HIM THE DIRECTIVE OF JUNE 23, 1972 FROM THE
COMMISSIONER OF INDIAN AFFAIRS AND THE SUBSEQUENT DIRECTIVES WERE
CRYSTAL CLEAR AND TOTALLY COMPREHENSIVE; TO HIM THEY LEFT NO
INTERSTICES IN ANY OF THEIR SUBSTANTIVE PROVISIONS OR THEIR
RAMIFICATIONS.
BUT THE ORIGINAL DIRECTIVE ITSELF STRESSED THAT "CAREFUL ATTENTION"
MUST BE GIVEN TO PROTECTING THE RIGHTS OF NON-INDIAN EMPLOYEES" AND SOME
OF THE SUBSEQUENT INSTRUCTIONS RECOGNIZED AND CALLED THE ATTENTION OF
THE FIELD OFFICES TO THE CONSIDERATION THAT THE IMPACT OF THE NEW POLICY
REQUIRED A SPECIAL SENSITIVITY TO ASSURE THE APPLICATION OF THE POLICY
ON AN EQUITABLE BASIS WITHIN THE PRESCRIBED LIMITS. APPARENTLY THE
BUREAU DID NOT CONSIDER THE ORIGINAL DIRECTIVE AND ITS SUBSEQUENT
EXPLICATIONS TO BE AS ALL-PERVASIVE AS MCMULLEN DID. THE BUREAU'S
CAUTION TO ITS FIELD OFFICES TO GIVE CAREFUL ATTENTION TO THE RIGHTS OF
NON-INDIAN EMPLOYEES IN THE APPLICATION OF THE POLICY AND TO SHOW A
SPECIAL SENSITIVITY TO ITS APPLICATION ON AN EQUITABLE BASIS INDICATED
THAT IT THOUGHT THE FIELD OFFICES HAD MORE TO DO THAN TO APPLY
MECHANICALLY A TOTALLY DETAILED AND INFLEXIBLE PLAN. BUT MCMULLEN TOOK
THE INFLEXIBLE POSITION THAT HE WAS WITHOUT AUTHORITY TO CONSULT OR
NEGOTIATE WITH THE UNION ABOUT ANY ASPECT OF THE PLAN OR ITS IMPACT,
THAT HE COULD LISTEN BUT DO NOTHING. LISTENING, WITH SUCH AN ATTITUDE,
IS NOT NEGOTIATING OR CONSULTING, BUT IS A REFUSAL TO DO SO.
THROUGHOUT THE PROCEEDING THE COMPLAINANT MADE IT PLAIN THAT IT WAS
NOT SEEKING TO REPEL OR OBSTRUCT THE INDIAN PREFERENCE BUT WAS CONCERNED
ABOUT THE IMPACT OF THE NEWLY EXPANDED POLICY ON NON-INDIANS. IT WANTED
TO DISCUSS WITH MANAGEMENT, AMONG OTHER THINGS, THE POSSIBILITY OF
ARRANGEMENTS BY WHICH THE INDIAN PREFERENCE COULD BE FURTHERED BY AN
INCUMBENT NON-INDIAN TRAINING AN INDIAN FOR THE INCUMBENT'S POSITION
WITH THE INCUMBENT TRANSFERRING TO ANOTHER POSITION, BUT MCMULLEN'S
ADAMANT ATTITUDE PRECLUDED MEANINGFUL CONFERRING OR NEGOTIATION ALONG
THAT LINE.
ANOTHER AVENUE THAT COMPLAINANT WANTED TO PURSUE WITH RESPONDENT WAS
A PROGRAM FOR TRAINING NON-INDIANS FOR, AND ASSISTANCE IN OBTAINING,
POSITIONS OUTSIDE THE BUREAU OR EVEN OUTSIDE THE DEPARTMENT, LEAVING
THEIR FORMER POSITIONS OPEN TO BEING FILLED IN ACCORD WITH THE INDIAN
PREFERENCE. THIS TOO WOULD HAVE FURTHERED THE SPIRIT OF THE INDIAN
PREFERENCE. COMPLAINANT PROPOSED THIS SUBJECT TO MCMULLEN. THE BUREAU
HAD SUCH A PROGRAM FOR TRAINING OF AND ASSISTANCE TO INDIANS. THE
BUREAU HAD ALSO UNDER CONSIDERATION SUCH A PROGRAM FOR NON-INDIANS.
MCMULLEN TOOK THE POSITION THAT SINCE SUCH A PROGRAM WAS PENDING
CONSIDERATION ON A NATIONAL LEVEL /9/ HE DID NOT HAVE AUTHORITY TO
NEGOTIATE CONCERNING SUCH A PROPOSAL ON A LOCAL LEVEL. THIS WAS
INEXPLICABLE ON THE BASIS OF AUTHORITY, AND OF ITSELF WAS A VIOLATION OF
SECTION 19(A)(6). ACCORDINGLY, I CONCLUDE RESPONDENT VIOLATED SECTION
19(A)(6).
I RECOMMEND THAT THE COMPLAINT BE DISMISSED INSOFAR AS IT ALLEGES
VIOLATIONS OF SECTIONS 19(A)(1) AND 19(A)(2) OF THE EXECUTIVE ORDER, AND
THAT IT BE SUSTAINED INSOFAR AS IT ALLEGES VIOLATIONS OF SECTION
19(A)(6).
HAVING REFUSED TO CONSULT AND NEGOTIATE, IN VIOLATION OF SECTION
19(A)(6), RESPONDENT SHOULD BE ORDERED TO CEASE AND DESIST FROM SUCH
REFUSAL AND TO CONSULT AND NEGOTIATE IN THE FUTURE, AND TO POST A NOTICE
/10/ THAT IT WILL DO SO.
SUGGESTED FORMS OF AN ORDER AND A NOTICE ARE ATTACHED HERETO.
SEPTEMBER 26, 1973
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B) OF THE REGULATIONS THEREUNDER, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS ORDERS THAT INDIAN AFFAIRS DATA
CENTER, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR,
ALBUQUERQUE, NEW MEXICO, SHALL:
1. CEASE AND DESIST FROM REFUSING TO CONSULT OR NEGOTIATE WITH
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 40, CONCERNING THE
METHODS OF APPLYING REQUIREMENTS OF PREFERENCE IN EMPLOYMENT IT IS
REQUIRED TO GIVE TO ANY RACIAL OR OTHER GROUP, THE IMPACT OF SUCH
APPLICATIONS, AND ARRANGEMENTS FOR THE RELIEF OF EMPLOYEES IN THE UNIT
WHO MAY BE ADVERSELY AFFECTED BY SUCH IMPACT.
2. UPON REQUEST FROM LOCAL 40, ENGAGE IN CONSULTATION OR NEGOTIATION
CONCERNING THESE MATTERS.
3. ADVISE THE APPROPRIATE OFFICIALS OF LOCAL 40 THAT IT IS WILLING
TO CONSULT AND NEGOTIATE ON THESE SUBJECTS.
4. POST COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY
THE ASSISTANT SECRETARY FOR LABOR RELATIONS AT ALL PLACES WHERE NOTICES
TO EMPLOYEES ARE CUSTOMARILY POSTED. UPON RECEIPT OF THE FORMS THEY
SHALL BE SIGNED BY THE EXECUTIVE OFFICER OF THE RESPONDENT AND POSTED
AND MAINTAINED FOR THIRTY CONSECUTIVE DAYS. THE EXECUTIVE DIRECTOR
SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY OTHER MATERIAL.
5. PURSUANT TO SECTION 203.26 OF THE REGULATIONS, NOTIFY THE
ASSISTANT SECRETARY IN WRITING WITHIN TWENTY DAYS OF THE DATE OF THIS
ORDER WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THIS ORDER.
OCTOBER . . . ,1973
1. WE WILL NOT REFUSE TO CONSULT OR NEGOTIATE WITH NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, LOCAL 40, CONCERNING ANY MATTERS
AFFECTING WORKING CONDITIONS SO FAR AS MAY BE REQUIRED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. UPON REQUEST FROM LOCAL 40, WE WILL ENGAGE IN CONSULTATION OR
NEGOTIATION CONCERNING ANY SUCH MATTER.
OCTOBER . . . , 1973
/1/ LOCAL 40 LATER ADVISED ME THAT BECAUSE OF A CHANGE OF
CIRCUMSTANCES THAT SETTLEMENT HAD FAILED TO MATERIALIZE AND REQUESTED A
RESCHEDULING OF THE HEARING. WITH THE AGREEMENT OF THE REGIONAL
ADMINISTRATOR I SEVERED THE TWO CASES AND RESCHEDULED A RENEWED HEARING
IN CASE NO. 4021(CA). THE PARTIES AGAIN AGREED ON A SETTLEMENT OF THAT
CASE IN A WRITTEN AGREEMENT IN WHICH LOCAL 40 AGAIN AGREED TO REQUEST
THE REGIONAL ADMINISTRATOR FOR LEAVE TO WITHDRAW THAT COMPLAINT.
/2/ EXH. S-4-2-3, SEC. 1.4, P. 3.
/3/ THE AGREEMENT WAS NEGOTIATED ON AUGUST 3, 1970, APPROVED, BY THE
ACTING COMMISSIONER OF THE BUREAU ON SEPTEMBER 3, 1970, AND APPROVED BY
THE ACTING DIRECTOR OF PERSONNEL, DEPARTMENT OF INTERIOR ON NOVEMBER 18,
1970. THIS PROVISION APPEARS IN A SUPPLEMENTAL AGREEMENT OF JANUARY 5,
1971. THE ORIGINAL AGREEMENT PROVIDED THAT THE SUBJECT OF "PROMOTIONS,
REPROMOTIONS, REASSIGNMENTS" AND CERTAIN OTHER SUBJECTS WOULD BE COVERED
BY A SUPPLEMENTAL AGREEMENT.
/4/ EXH. S4-2-3, P. 4.
/5/ EXH. S4-2-3, P. 7.
/6/ EXH. S5-A.
/7/ EXHIBITS C-4 THROUGH C-7.
/8/ SIX MONTHS LATER THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA HELD THAT THE ACT REQUIRED PREFERENCE IN
APPOINTMENT TO ANY VACANCY NO MATTER HOW CREATED, AND NOT ONLY IN
INITIAL APPOINTMENTS. FREEMAN V. MORTON, CIVIL ACTION NO. 327-71, DEC.
21, 1972 (NOT REPORTED). SIX MONTHS AFTER THAT A THREE-JUDGE DISTRICT
COURT FOR THE DISTRICT OF NEW MEXICO HELD THE FREEMAN DECISION
"INOPERATIVE" BECAUSE OF THE ENACTMENT OF THE EQUAL EMPLOYMENT
OPPORTUNITY ACT OF 1972, P.L. 92-261. MANCINI V. MORTON, CIVIL NO.
9626, DEC. JUNE 1, 1973, NOT YET REPORTED.
/9/ THE PROGRAM ON A NATIONAL LEVEL WAS NEVER ADOPTED.
/10/ I HAVE QUALMS ABOUT THE ADVISABILITY OF POSTING A NOTICE IN THIS
CASE. BUT I OBSERVE THAT HERETOFORE IT HAS BEEN THE CONSISTENT POLICY
OF THE ASSISTANT SECRETARY TO REQUIRE THE POSTING OF A NOTICE IN CASES
IN WHICH HE FOUND A VIOLATION OF SECTION 19(A) EVEN IN CASES IN WHICH I
WOULD NOT HAVE SO RECOMMENDED. E.G., HEADQUARTERS, U.S. ARMY AVIATION
SYSTEMS COMMAND, A/SLMR 168, AFFD. FLRC 72A-30.
4 A/SLMR 340; P. 61; CASE NO. 40-4611(CA); JANUARY 8, 1974.
UNITED STATES DEPARTMENT OF AIR FORCE,
WARNER ROBINS AIR MATERIEL AREA (WRAMA)
COMMISSARY STORE 2853RD AIR BASE DIVISION,
ROBINS AIR FORCE BASE, GEORGIA
A/SLMR NO. 340
THE PROCEEDING AROSE UPON THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 987 (COMPLAINANT). THE COMPLAINT ALLEGED THAT THE RESPONDENT
ACTIVITY, THROUGH THE STATEMENTS AND ACTIONS OF THE COMMISSARY STORE
MANAGER AND THE ASSISTANT MANAGER AT A MEETING HELD ON SEPTEMBER 28,
1972, WITH TWO CASHIER EMPLOYEES AND A SHOP STEWARD, VIOLATED SECTION
19(A)(1) AND (6) OF THE ORDER, AS AMENDED. SPECIFICALLY, IT WAS
CONTENDED THAT THE COMMISSARY STORE MANAGER AND THE ASSISTANT MANAGER,
BY CHARACTERIZING THE SHOP STEWARD AS A PROBLEM MAKER WHO WAS ATTEMPTING
TO DO MANAGEMENT'S JOB, IMPLIED TO THE EMPLOYEES INVOLVED THAT THE
RESPONDENT SOUGHT TO INTERFERE WITH THE RELATIONSHIP BETWEEN THE
EMPLOYEES AND THEIR EXCLUSIVE REPRESENTATIVE. IT ALSO WAS ALLEGED THAT
THE RESPONDENT ACTIVITY IMPROPERLY REQUIRED ADDITIONAL STEPS IN THE
PROCESSING OF A GRIEVANCE CONTRARY TO THE TERMS OF THE EXISTING
NEGOTIATED GRIEVANCE PROCEDURE, DENIED APPROPRIATE OFFICIAL TIME FOR THE
PREPARATION OF A GRIEVANCE, AND DISCOURAGED THE PURSUIT OF A GRIEVANCE
BY SUCH TACTICS AS THE "HIGH PRESSURE" QUESTIONING OF THE GRIEVANTS AND
URGING THEM TO CONTACT THE PERSONNEL OFFICE OR UTILIZE EEO PROCEDURES
RATHER THAN THEIR SHOP STEWARD. THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED DISMISSAL OF THE COMPLAINT IN ITS ENTIRETY BECAUSE HE
CONCLUDED THAT THE COMPLAINANT HAD NOT SUSTAINED THE BURDEN OF PROVING
ITS ALLEGATIONS.
THE ASSISTANT SECRETARY, NOTING THAT SIX DAYS PRIOR TO THE FILING OF
THE CHARGE IN THIS MATTER A GRIEVANCE ADDRESSING THE SAME ISSUES RAISED
BY THE CHARGE AND THE SUBSEQUENT COMPLAINT WAS FILED WITH THE
RESPONDENT, CONCLUDED THAT, PURSUANT TO SECTION 19(D) OF THE ORDER, HE
WAS WITHOUT AUTHORITY TO CONSIDER THE SUBJECT MATTER OF THE COMPLAINT.
ACCORDINGLY, HE ORDERED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
UNITED STATES DEPARTMENT OF AIR FORCE,
WARNER ROBINS AIR MATERIEL AREA (WRAMA),
COMMISSARY STORE 2853RD AIR BASE DIVISION,
ROBINS AIR FORCE BASE, GEORGIA
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 987
ON AUGUST 30, 1973, 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. NO EXCEPTIONS WERE FILED 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 HEARINGS 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 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, ONLY TO THE EXTENT CONSISTENT HEREWITH.
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT, THROUGH THE
STATEMENTS AND ACTIONS OF THE COMMISSARY STORE MANAGER AND THE ASSISTANT
MANAGER AT A MEETING HELD ON SEPTEMBER 28, 1972, WITH TWO CASHIER
EMPLOYEES AND A SHOP STEWARD, VIOLATED SECTION 19(A)(1) AND (6) OF THE
ORDER, AS AMENDED. SPECIFICALLY, IT IS CONTENDED THAT THE COMMISSARY
STORE MANAGER AND THE ASSISTANT MANAGER, BY CHARACTERIZING THE SHOP
STEWARD AS A PROBLEM MAKER WHO WAS ATTEMPTING TO DO MANAGEMENT'S JOB,
IMPLIED TO THE EMPLOYEES INVOLVED THAT THE RESPONDENT SOUGHT TO
INTERFERE WITH THE RELATIONSHIP BETWEEN THE EMPLOYEES AND THEIR
EXCLUSIVE REPRESENTATIVE. IT ALSO IS ALLEGED THAT THE RESPONDENT
IMPROPERLY REQUIRED ADDITIONAL STEPS IN THE PROCESSING OF A GRIEVANCE
CONTRARY TO THE TERMS OF THE EXISTING NEGOTIATED GRIEVANCE PROCEDURE,
DENIED APPROPRIATE OFFICIAL TIME FOR THE PREPARATION OF A GRIEVANCE, AND
DISCOURAGED THE PURSUIT OF A GRIEVANCE BY SUCH TACTICS AS THE "HIGH
PRESSURE" QUESTIONING OF THE GRIEVANTS AND URGING THEM TO CONTACT THE
PERSONNEL OFFICE OR UTILIZE EEO PROCEDURES, RATHER THAN THEIR SHOP
STEWARD.
THE EVIDENCE ESTABLISHES THAT ON OCTOBER 6, 1972, SIX DAYS PRIOR TO
THE FILING OF THE CHARGE IN THIS MATTER, A GRIEVANCE ADDRESSING THE SAME
ISSUES RAISED BY THE CHARGE AND THE SUBSEQUENT COMPLAINT WAS FILED WITH
THE RESPONDENT. AS DID THE CHARGE AND COMPLAINT, THE GRIEVANCE ALLEGED
THAT DURING THE ABOVE-NOTED SEPTEMBER 28, 1972, MEETING, THE COMMISSARY
STORE MANAGER AND THE ASSISTANT MANAGER ALTERNATELY QUESTIONED THE
EMPLOYEES WITHOUT GIVING THEM AN OPPORTUNITY TO REPLY; TOLD THE
EMPLOYEES' DESIGNATED REPRESENTATIVE AND STEWARD THAT SHE WAS TRYING TO
TAKE OVER THE COMMISSARY AND DO MANAGEMENT'S JOB; AND INFORMED THE
EMPLOYEES PRESENT AT THE MEETING THAT THE EMPLOYEES DID NOT HAVE A
PROBLEM AND THAT MANAGEMENT WOULD DETERMINE WHEN THERE WAS A PROBLEM.
THE GRIEVANCE ALLEGED FURTHER THAT THE COMMISSARY STORE MANAGER AND HIS
ASSISTANT INTERFERED WITH THE EMPLOYEES' RIGHT TO CHOOSE THEIR OWN
REPRESENTATIVE, THAT THEY USED COERCION IN AN ATTEMPT TO INTERFERE IN
THE PRESENTATION AND PREPARATION OF THE EMPLOYEES' GRIEVANCE, THAT THEY
INTERFERED WITH THE EMPLOYEES' RIGHT TO PRESENT THEIR GRIEVANCE ABOVE
THE FIRST LEVEL SUPERVISOR, AND THAT THEY DENIED THE EMPLOYEES THE
OPPORTUNITY TO PREPARE A FORMAL GRIEVANCE.
IN MY VIEW, SECTION 19(D) OF THE ORDER IS DISPOSITIVE OF THE INSTANT
COMPLAINT. /2/ THUS, UNDER THE CIRCUMSTANCES OF THIS CASE, IT IS CLEAR
THAT THE ISSUES RAISED BY THE COMPLAINANT IN ITS COMPLAINT HEREIN WERE
RAISED PREVIOUSLY IN A GRIEVANCE FILED WITH THE RESPONDENT.
ACCORDINGLY, PURSUANT TO SECTION 19(D) OF THE ORDER, I AM WITHOUT
AUTHORITY TO CONSIDER THE SUBJECT MATTER OF THE COMPLAINT AND,
THEREFORE, SHALL ORDER THAT IT BE DISMISSED IN ITS ENTIRETY.
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 40-4611(CA) BE,
AND IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
DATED, WASHINGTON, D.C.
JANUARY 8, 1974
/1/ THE COMPLAINANT MADE AN UNTIMELY REQUEST FOR AN EXTENSION OF TIME
IN WHICH TO FILE EXCEPTIONS.
/2/ SECTION 19(D) PROVIDES, "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. APPEALS OR
GRIEVANCE DECISIONS SHALL NOT BE CONSTRUED AS UNFAIR LABOR PRACTICE
DECISIONS UNDER THIS ORDER NOR AS PRECEDENT FOR SUCH DECISIONS. ALL
COMPLAINTS UNDER THIS SECTION THAT CANNOT BE RESOLVED BY THE PARTIES
SHALL BE FILED WITH THE ASSISTANT SECRETARY."
WARNER ROBINS AIR MATERIEL AREA (WRAMA)
UNITED STATES DEPARTMENT OF AIR FORCE
COMMISSARY STORE 2853RD AIR BASE DIVISION,
AND
LOCAL 987, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL/CIO,
BEFORE: RHEA M. BURROW
ADMINISTRATIVE LAW JUDGE
APPEARANCES:
MICHAEL A. DEEP, ESQ.
JACKIE K. COOPER, ESQ.
OFFICE OF STAFF JUDGE ADVOCATE
WRAMA/JA
ROBINS AIR FORCE BASE, GEORGIA 31098
BOBBY L. HARRAGE
SPECIAL ASSISTANT, AFGE LOCAL 987
P. O. BOX 1079
WARNER ROBINS, GEORGIA 31091
AND
JOHN R. BROOKS, PRESIDENT
AFGE, LOCAL 987
P. O. BOX 1079
WARNER ROBINS, GEORGIA 31091
PURSUANT TO A NOTICE OF HEARING ISSUED ON FEBRUARY 13, 1973, BY THE
REGIONAL ADMINISTRATOR OF THE LABOR MANAGEMENT SERVICES ADMINISTRATION,
ATLANTA REGION, A HEARING WAS HELD IN THE ABOVE ENTITLED MATTER ON APRIL
17 AND 18, 1973, AT PERRY, GEORGIA. THE NOTICE OF HEARING SPECIFIED
THAT "A HEARING SHOULD BE HELD WITH REFERENCE TO VIOLATIONS OF SECTION
19(A)(1) AND (6) OF EXECUTIVE ORDER 11491," (HEREIN CALLED THE ORDER).
THE PROCEEDING WAS INITIATED UNDER THE ORDER BY THE FILING OF A
COMPLAINT ON DECEMBER 18, 1972, BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL/CIO, LOCAL 987 (HEREIN CALLED COMPLAINANT) AGAINST WARNER
ROBINS AIR MATERIEL AREA, U.S. DEPARTMENT OF AIR FORCE, COMMISSARY STORE
2853RD AIR BASE DIVISION, ROBINS AIR FORCE BASE, GEORGIA (HEREIN CALLED
RESPONDENT, OR WRAMA).
THE COMPLAINT AS AMENDED /1/ ALLEGES THAT ON SEPTEMBER 28, 1972, THE
WRAMA 2853RD AIR BASE DIVISION COMMISSARY STORE MANAGERS EXPRESSED THEIR
"OPINIONS" OF MRS. GREEN; /2/ AS A PROBLEM-MAKER AND TRYING TO DO
MANAGEMENT'S JOB INFERS TO EMPLOYEES THAT THEY MAY BE BETTER OFF IT NOT
ASSOCIATED WITH MRS. GREEN OR AT LEAST WORSE OFF BY DESIGNATING HER AS
THEIR REPRESENTATIVE. SUCH ACTIONS INHERENTLY DISCOURAGES MEMBERSHIP IN
A LABOR ORGANIZATION IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER. IN
ADDITION, INTERFERING WITH THE EMPLOYEE-REPRESENTATIVE RELATION,
REQUIRING ADDITIONAL STEPS IN THE PROCESSING OF A GRIEVANCE IN THE
PRESENCE OF A NEGOTIATED GRIEVANCE PROCEDURE, DENYING APPROPRIATE
OFFICIAL TIME FOR THE PREPARATION OF A GRIEVANCE, DISCOURAGING THE
PURSUIT OF THE GRIEVANTS, AND THE URGING TO CONTACT PERSONNEL RATHER
THAN TO SHOP STEWARD OR TO USE EEO PROCEDURES INTERFERES WITH, RESTRAINS
AND COERCES THE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS IN VIOLATION
OF SECTION 19(A)(1) OF THE ORDER. NOTWITHSTANDING THE AFOREMENTIONED
VIOLATIONS OF THE ORDER, SUCH ACTION CONSTITUTES A FAILURE TO CONSULT,
CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION AS REQUIRED IN VIOLATION
OF SECTION 19(A)(6) OF THE ORDER. AT THE BEGINNING OF THE HEARING
COUNSEL FOR THE COMPLAINANT STATED THAT IN TRYING TO INFORMALLY RESOLVE
THE MATTER CHARGED IN ITS LETTER OF OCTOBER 12, 1972, THE EMPLOYER
FAILED TO OFFER A REASONABLE RESOLUTION TO THE COMPLAINT.
THE RESPONDENT DENIES A VIOLATION OF THE ORDER AND CONTENDS:
(1) THAT THE COMMISSARY STORE MANAGERS BENT BACKWARD TO ESTABLISH
GOOD LABOR MANAGEMENT RELATIONSHIP AND THIS IS KNOWN TO THE UNION AND
THE STEWARDS;
(2) THAT THE ENTIRE MATTER HAS A CONNOTATION MUCH DIFFERENT THAN A
VIOLATION OF THE EXECUTIVE ORDER;
(3) THAT MANAGEMENT HAS DONE EVERYTHING POSSIBLE TO GET ALONG WITH
STEWARDS AND THEY HAVE NOT BEEN DEGRADED; THAT THE RESPONDENT HAS BENT
OVER BACKWARDS TO RESOLVE THE MATTER BUT WITHOUT SUCCESS.
AT THE HEARING, REPRESENTATIVES APPEARED ON BEHALF OF BOTH THE
COMPLAINANT AND RESPONDENT. THE PARTIES WERE AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO EXAMINE, AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. POST-HEARING BRIEFS
WERE SUBMITTED BY COUNSEL FOR THE COMPLAINANT AND THE RESPONDENT.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE EVIDENCE ADDUCED AT
THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS.
THE ISSUE PRESENTED FOR CONSIDERATION IN THIS PROCEEDING IS:
WHETHER THE COMMISSARY MANAGERS MADE STATEMENTS OR ACTED IN SUCH A
MATTER AT THE MEETING
HELD ON SEPTEMBER 28, 1972, AS TO VIOLATE SECTION 19(A)(1) AND (6) OF
THE ORDER.
THE RESPONDENTS MOTION TO DISMISS THE PROCEEDING REFERRED TO ME BY
THE REGIONAL ADMINISTRATOR AND RENEWED AT THE HEARING IS NOT SHOWN TO
HAVE BEEN PREDICATED ON AN APPROVAL OF SETTLEMENT UNDER THE REGULATIONS
PURSUANT TO 29 CFR 203.6(A)(3) AND SHOULD BE DENIED. /3/ THERE WAS
DISAGREEMENT AS TO WHETHER THE METHOD OF APOLOGY SOUGHT BY COMPLAINANT
FOLLOWING FINDINGS REPORTED BY AN INVESTIGATING COMMITTEE, HAD BEEN
COMPLIED WITH AN DETERMINATION OF WHETHER THERE HAD BEEN COMPLIANCE WITH
DEMANDS MADE BY COMPLAINANT DEPENDED IN PART UPON TESTIMONY AND
CREDIBILITY OF WITNESSES AT THE HEARING. NO OFFER TO SETTLEMENT WAS
MADE AT THE HEARING. HENCE, NO SETTLEMENT AGREEMENT OR OFFER OF
SETTLEMENT WAS APPROVED BY THE REGIONAL ADMINISTRATOR PRIOR TO THE CLOSE
OF THE HEARING AND DISMISSAL OF THE CASE ON BASIS OF RESONDENT'S MOTION
IS RECOMMENDED; THE REGIONAL ADMINISTRATOR IS A NECESSARY PARTY TO SUCH
ACTION. THE EVIDENCE DOES SHOW THAT THERE WAS IN FACT SUBSTANTIAL
COMPLIANCE BY RESPONDENT WITH ALL OF THE DEMANDS FOR SETTLEMENT MADE BY
THE UNION. HOWEVER, IN VIEW OF THE DISPOSITION RECOMMENDED IN THIS CASE
ON THE MERITS THE QUESTION OF WHETHER THE SETTLEMENT AGREEMENT SHOULD BE
APPROVED BY THE ASSISTANT SECRETARY IS RENDERED MOOT.
WARNER ROBINS AIR MATERIEL AREA WITH HEADQUARTERS LOCATED AT ROBINS
AIR FORCE BASE, GEORGIA, IS A MAJOR MILITARY CENTER SERVICING
"CUSTOMERS" THROUGHOUT THE WORLD FOR AIRCRAFT MAINTENANCE, SUPPLY,
LOGISTICS MANAGEMENT, WEAPONS AND PROCUREMENTS NECESSARY TO UNITED
STATES MILITARY OPERATIONS. A MAJOR GENERAL IS IN COMMAND OF THE BASE.
WRAMA IN PERFORMING ITS MISSION AT ROBINS AIR FORCE BASE EMPLOYS OVER
16,000 CIVILIAN EMPLOYEES PLUS 5,000 MILITARY PERSONNEL. THE LAND AREA
ENCOMPASSED BY THE BASE IS ROUGHLY FIVE MILES LONG AND TWO MILES WIDE,
WITH OVER 1,000 BUILDINGS RANGING FROM ENORMOUS AIR CRAFT HANGARS AND
WAREHOUSES TO MINOR ADMINISTRATIVE BUILDINGS.
THE COMMISSARY STORE IS NOT INVOLVED IN THE OPERATIONS AND
RESPONSIBILITIES OF WRAMA. IT IS SIMPLY A SUPERMARKET FOOD STORE
LOCATED IN A SINGLE BUILDING WHERE THE WIVES OF MILITARY PERSONNEL,
ACTIVE DUTY AND RETIRED, COME TO SHOP FOR GROCERIES. THE VOLUME OF
BUSINESS IS EIGHT TO NINE MILLION DOLLARS PER YEAR. APPROXIMATELY 80
PERSONS ARE EMPLOYED TO CARRY OUT THE $700,000 PER MONTH COMMISSARY
STORE OPERATIONS INCLUDING MEAT CUTTERS, STOCK HANDLERS AND SALES-STORE
CHECKERS.
JULIAN BYRON LOVE, THE COMMISSARY STORE MANAGER, AND EUGENE T.
HAMLIN, THE ASSISTANT MANAGER, ARE THE PERSONS ALLEGED TO HAVE COMMITTED
THE UNFAIR LABOR PRACTICES HEREIN ON SEPTEMBER 28, 1972, IN THE PRESENCE
OF JANE B. FLOYD, SHERYL GAIL YOUNGBLOOD, AND GWENDOLYN R. GREEN, ALL
SALES-STORE CHECKERS; MRS. GREEN IS ALSO AN AFGE LOCAL 987 STEWARD.
/4/
THE STORE OPERATES ON TWO SHIFTS CALLED THE COMMON AND UNCOMMON TOURS
OF DUTY. THE COMMON TOUR OF DUTY WORKED FROM 0945 TO 1830 ON MONDAY AND
0800 TO 1645 FROM TUESDAY THROUGH FRIDAY. THE UNCOMMON TOUR OF DUTY WAS
FROM 10:45 TO 19:30 TUESDAY THROUGH FRIDAY AND 0800 TO 1645 ON SATURDAY.
THE NORMAL ROTATION FOR THE TOURS OF DUTY ESTABLISHED BY AIR FORCE
REGULATIONS WAS SIX WEEKS.
MRS. JANE B. FLOYD AND MRS. SHERYL GAIL YOUNGBLOOD WERE SALES-STORE
CHECKERS AT THE WRAMA COMMISSARY STORE FOR ABOUT ONE AND ONE-HALF AND
FOUR YEARS, RESPECTIVELY, PRIOR TO SEPTEMBER 28, 1972. SOMETIME IN
JANUARY 1972 MRS. YOUNGBLOOD HAD ENROLLED IN SCHOOL FOR AN EDUCATIONAL
COURSE AND ABOUT JUNE 1972, MRS. FLOYD ALSO STARTED SCHOOL. THE SCHOOLS
THAT THEY ATTENDED WERE SPONSORED BY THE STATE AND THE COURSES FOR WHICH
EACH EMPLOYEE WAS ENROLLED WAS FOR HER OWN SELF-IMPROVEMENT AND ENTIRELY
UNRELATED TO THEIR WORK ON WRAMA OPERATION.
AFTER ENTERING SCHOOL, MRS. FLOYD AND MRS. YOUNGBLOOD REQUESTED THAT
THEIR WORK BE ARRANGED TO PERMIT THEM TO ATTEND SCHEDULED EVENING
CLASSES. THE TESTIMONY OF RECORD REVEALS THAT AT NO TIME DID MANAGEMENT
FAIL TO MAKE ARRANGEMENT FOR THEM TO ATTEND SCHOOL. IN FACT, IT SHOWS
THAT WHENEVER THEY WERE ON A TOUR OF DUTY WHICH CONFLICTED WITH THEIR
SCHOOL PROGRAM THEY WERE PLACED ON AN ESTABLISHED TOUR OF WORK FROM 0800
TO 1645 ON THE DAY S THERE WAS A CONFLICT IN WORK AND THEIR SCHOOL
SCHEDULE. THIS TOUR OF WORK WAS UTILIZED TO MAKE SPECIAL ARRANGEMENT
FOR THE SALES-STORE CHECKERS AND/OR EMPLOYEES WHO WERE ATTENDING SCHOOL.
THIS ARRANGEMENT HAD CONTINUED UNTIL ABOUT A WEEK BEFORE THE SEPTEMBER
28 MEETING FOR MRS. FLOYD BUT AS TO MRS. YOUNGBLOOD, ARRANGEMENT HAD
BEEN MADE FOR THE DAYS THAT SHE HAD A CONFLICT IN CLASSES TO WORK THE
SPECIALLY ARRANGED TOUR FOR THE ENTIRE YEAR.
IMMEDIATELY PRIOR TO SEPTEMBER 28, 1972, MRS. FLOYD STATED THAT SHE
AND MRS. YOUNGBLOOD HAD GONE TO SEE MR. HAMLIN ABOUT ARRANGING ON THOSE
DAYS THAT THEY WENT TO SCHOOL TO GET OFF EARLY SO THEY COULD BE AT THEIR
SCHOOL CLASSES ON TIME. MR. HAMLIN FIXED UP THE TOUR OF DUTY SO THAT
THEY CAME IN AT 8:45 A.M. AND LEFT AT 5:30 P.M. /5/ THIS WAS A
TEMPORARY ARRANGEMENT TO ACCOMMODATE MRS. FLOYD AND MRS. YOUNGBLOOD
UNTIL EARLY OCTOBER WHEN THERE WAS A TOUR OF DUTY CHANGE.
MR. LOVE, COMMISSARY MANAGER, HAD BEEN ON LEAVE FOR TWO WEEKS PRIOR
TO SEPTEMBER 28, 1972, AND RETURNED TO WORK ON THAT DAY. MR. HAMLIN,
HIS ASSISTANT, WAS ATTENDING EEO SCHOOL ON THE DAY THAT MR. LOVE
RETURNED TO WORK AND DID NOT REPORT TO THE COMMISSARY UNTIL ABOUT 3:15
P.M. WHEN HIS CLASSES WERE OVER. UPON RETURN FROM VACATION, MR. LOVE
NOTICED OR DISCOVERED THAT THE TEMPORARY TOUR OF WORK WHICH HAD BEEN
SCHEDULED FOR MRS. FLOYD AND MRS. YOUNGBLOOD BY MR. HAMLIN WHILE HE WAS
ON LEAVE WAS NOT AN AUTHORIZED ONE BY WRAMA; HE IMMEDIATELY CONTACTED
PERSONNEL AND TOOK ACTION TO CONVERT IT TO ONE THAT WAS APPROVED SO THE
LADIES WOULD GET PAID; THEY HAD ALREADY WORKED ONE WEEK ON THIS TOUR.
APPROVAL, WAS SECURED AND THEY WERE PAID.
ON THE MORNING OF SEPTEMBER 28, 1972, MRS. GREEN, A SHOP STEWARD OF
LOCAL 987 CAME TO MR. LOVE AND REQUESTED A MEETING WITH MRS. FLOYD AND
MRS. YOUNGBLOOD. IT WAS IMMEDIATELY SCHEDULED FOR 3:30 P.M. WITHOUT ANY
DISCUSSION AS TO THE SUBJECT MATTER OR PROBLEM.
WHEN MR. HAMLIN ARRIVED AT THE COMMISSARY SHORTLY BEFORE THE MEETING
WAS SCHEDULED, MR. LOVE INQUIRED IF HE WAS AWARE OF ANY PROBLEM THAT HAD
DEVELOPED AS TO MRS. FLOYD AND MRS. YOUNGBLOOD WHILE HE HAD BEEN ON
LEAVE. MR. HAMLIN REPORTED THAT HE WAS UNAWARE OF ANY PROBLEM AND THEY
DECIDED TO MEET WITH THE STEWARD AND EMPLOYEES AT THE APPOINTED TIME.
THE FIVE, MR. LOVE, MR. HAMLIN, MRS. FLOYD, MRS. YOUNGBLOOD, AND MRS.
GREEN, MET IN MR. LOVE'S OFFICE, ALSO REFERRED TO AT THE HEARING AS THE
VAULT, WHICH WAS DESCRIBED AS A SMALL ROOM ABOUT 8 BY 10 FEET IN SIZE.
MR. FLOYD AND MRS. YOUNGBLOOD TESTIFIED THAT THEY HAD BEEN INSTRUCTED BY
MRS. GREEN NOT TO SAY ANYTHING AT THE MEETING AND THEY DID NOT DO SO;
MRS. FLOYD TESTIFIED THAT MR. HAMLIN ONLY ASKED ONE QUESTION AT THE
MEETING AND THAT WAS WHAT IS THE PROBLEM? MRS. YOUNGBLOOD TESTIFIED
THAT SHE HEARD MR. HAMLIN MAKE ONE STATEMENT AND THAT WAS THIS WAS AN
EEO CASE. SHE ALSO TESTIFIED AS FOLLOWS:
"Q. DID YOU HEAR A STATEMENT TO THE EFFECT THAT MRS. GREEN WAS
TRYING TO DO MANAGEMENT'S JOB?
A. I HEARD ONE TO THE EFFECT THAT SHE WAS TRYING TO TAKE OVER.
Q. TRYING TO TAKE OVER THE COMMISSARY.
A. YES.
Q. WHO MADE THAT STATEMENT, DO YOU RECALL?
A. MR. LOVE.
Q. MR. LOVE. WAS THIS IN THE MEETING OF SEPTEMBER 28?
A. NO SIR, IT WAS PRIOR TO THAT.
Q. PRIOR TO THAT MEETING. WAS IT EVER SUGGESTED TO YOU BY EITHER
ONE OF YOUR SUPERVISORS THAT YOU SHOULD SEEK ASSISTANCE FROM PERSONNEL
OR EEO RATHER THAN MRS. GREEN OR THE UNION?
A. ONLY AT THE MEETING IT WAS SUGGESTED IT WAS AN EEO PROBLEM." /6/
ON CROSS EXAMINATION SHE STATED THAT SHE WAS NOT SURE WHO HAD MADE
THE STATEMENT.
MRS. GREEN DESCRIBED THE MEETING AS FOLLOWS:
"Q. AT THIS MEETING ON SEPTEMBER 28, YOU STATED THAT THESE GENTLEMEN
ASKED QUESTIONS?
A. YES SIR.
Q. WOULD YOU SPEAK, PLEASE, FROM YOUR RECOLLECTIONS, WHICH GENTLEMAN
ASKED YOU QUESTIONS?
A THEY WERE-- MR. HAMLIN WAS GENERALIZING. HE WAS REARED BACK IN HIS
CHAIR. AND MOSTLY WHAT HE WAS SAYING WAS THAT I WAS TRYING TO TAKE
MANAGEMENT'S JOB, TRYING TO DO MANAGEMENT'S JOB, THEY WERE ASKING
CASHIERS QUESTIONS, BUT I HAD TOLD THE CASHIERS THAT I WOULD DO THEIR
TALKING SINCE I HAD NOT FOUND OUT ALL THE FACTS, THAT WE COULD NOT HOLD
THIS MEETING CORRECTLY, I TRIED TO ADJOURN THE MEETING ONE TIME BEFORE I
ADJOURNED IT AND THINGS WERE GOING TO FAST THAT I COULDN'T." /7/
ALL PRESENT AT THE MEETING INDICATED THAT MRS. GREEN ABRUPTLY
TERMINATED THE MEETING WITHOUT PERMITTING MRS. FLOYD OR MRS. YOUNGBLOOD
TO ANSWER THE INQUIRY AS TO WHAT WAS THE PROBLEM AND ALSO THAT MRS.
GREEN WOULD NOT OR DID NOT ANSWER THE INQUIRY. IN ANSWER TO AN INQUIRY
FROM THE ADMINISTRATIVE LAW JUDGE AS TO WHETHER SHE EVER WENT BACK TO
THE COMMISSARY MANAGERS TO TELL THEM WHAT THE FACTS WERE BEFORE ANY
CHARGES WERE FILED SHE FIRST ANSWERED: "I COULDN'T BECAUSE I NEVER GOT
THE CHANCE." AND WHEN DIRECTED TO ANSWER YES OR NO AND NOT EVADE THE
QUESTION SHE STATED SHE COULDN'T ANSWER AND WHEN DIRECTED TO DO SO, SHE
DECLINED. /8/
MR. LOVE TESTIFIED THAT HE SCHEDULED THE MEETING FOR 3:30 P.M.,
SEPTEMBER 28 AT THE REQUEST OF MRS. GREEN TO MEET WITH MRS. FLOYD AND
MRS. YOUNGBLOOD; NO REFERENCE WAS MADE PRIOR TO OR DURING THE MEETING
OF ANY GRIEVANCE AND HE AND MR. HAMLIN DECIDED TO ATTEND THE MEETING
SHORTLY BEFORE IT WAS SCHEDULED TO ASCERTAIN IF THE EMPLOYEES HAD ANY
PROBLEM BOTHERING THEM THAT THEY COULD RESOLVE. ALL PARTIES ARRIVED FOR
THE MEETING ABOUT THE SAME TIME AND MR. LOVE AND MR. HAMLIN INQUIRED AS
TO WHAT WAS THE PROBLEM. MRS. FLOYD AND MRS. YOUNGBLOOD DID NOT
PARTICIPATE IN THE DISCUSSION AS THEY WERE INSTRUCTED BY MRS. GREEN NOT
TO DO SO AS SHE WOULD DO THE TALKING. THE MEETING ONLY LASTED 5 MINUTES
AS IT WAS TERMINATED BY MRS. GREEN BEFORE ANYONE COULD ASCERTAIN ANY
INFORMATION AS TO WHAT PROBLEM WAS INVOLVED. MR. LOVE TESTIFIED THAT HE
DID NOT STATE AT THE MEETING THAT THIS WAS AN EEO PROBLEM AND THE ONLY
WORDS MENTIONED AS TO EEO WAS THE FACT THAT I TOLD THEM THAT MR. HAMLIN
HAD GONE TO EEO SCHOOL AND I HAD NOT HAD A CHANCE TO DISCUSS THE MEETING
WITH HIM UNTIL HE RETURNED. PAYROLL DATA WAS ALSO INTRODUCED AT THE
HEARING TO REFUTE THAT MRS. FLOYD AND MRS. YOUNGBLOOD HAD TAKEN ANNUAL
LEAVE TO ATTEND SCHOOL AS CONTENDED BUT HAD ACTUALLY BEEN ON SPECIAL
TOURS OF DUTY WHICH HAD BEEN ARRANGED FOR THEM AND FOR WHICH THEY WERE
PAID. /9/
MR. LOVE ALSO TESTIFIED THAT THERE HAD BEEN NO GRIEVANCE MADE BY OR
ON BEHALF OF MRS. FLOYD OR MRS. YOUNGBLOOD PRIOR TO OR AT THE SEPTEMBER
28, 1972 MEETING. /10/
THE REGULATIONS OF THE ASSISTANT SECRETARY FOR LABOR MANAGEMENT
RELATIONS REQUIRE THAT: "THE COMPLAINANT SHALL BEAR THE BURDEN OF PROOF
AT ALL STATES OF THE PROCEEDING, REGARDING MATTERS ALLEGED IN THE
COMPLAINT . . . " /11/
SECTION 19(A)(1) AND (6) OF THE ORDER ARE STATED TO HAVE BEEN
VIOLATED AND ARE AS FOLLOWS:
"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;
"(6) REFUSE TO CONSULT, CONFER, OR NEGOTIATE WITH A LABOR
ORGANIZATION AS REQUIRED BY THIS ORDER."
THE COMPLAINT ALLEGES (A) THAT ON SEPTEMBER 28, 1972, THE RESPONDENT
EXPRESSED THE OPINION OF MRS. GREEN AS A PROBLEM-MAKER TRYING TO DO
MANAGEMENT'S JOB AND THIS INFERS THEY MIGHT BE BETTER OFF IF NOT
ASSOCIATED WITH MRS. GREEN OR WORSE OFF BY DESIGNATING HER AS THEIR
REPRESENTATIVE.
MRS. FLOYD STATED THAT THE ONLY STATEMENT MADE BY MR. HAMLIN AT THE
MEETING WAS THAT HE ASKED THE QUESTION, "WHAT IS THE PROBLEM?" THAT SHE
HEARD THE STATEMENT MADE AT THE MEETING THAT THIS WAS AN EEO PROBLEM,
BUT DID NOT KNOW WHO MADE IT; THAT MR. LOVE ALSO ASKED WHAT WAS THE
PROBLEM AND REMARKED THAT MRS. GREEN WAS TRYING TO DO MANAGEMENT'S JOB;
SHE DID NOT HEAR ANY STATEMENT THAT MRS. GREEN WAS TRYING TO TAKE OVER
THE COMMISSARY. /12/ A REVIEW OF MRS. FLOYD'S TESTIMONY DOES NOT REVEAL
THAT SHE TESTIFIED THAT THE RESPONDENT EXPRESSED AN OPINION OF MRS.
GREEN AS BEING A PROBLEM MAKER.
A REVIEW OF MRS. YOUNGBLOOD'S TESTIMONY QUOTED IN SECTION III OF THIS
DECISION AND THE RECORD RELATING TO THIS ALLEGATION REVEALS THAT IT WAS
AT A DIFFERENT MEETING ALTOGETHER THAT MR. LOVE HAD TOLD HER THEY HAD
HAD MORE PROBLEMS SINCE SHE OFFICIALLY TOOK OVER AS STEWARD. /13/ SHE
FURTHER TESTIFIED THAT SHE MENTIONED TO MR. LOVE CASHIERS WERE
DISSATISFIED WITH THEIR "EDUCATIONAL FULFILLMENT" BECAUSE THAT WAS ALL
SHE KNEW ABOUT AT THAT TIME. ALSO, SHE STATED THAT SHE ATTEMPTED TO
MEET WITH MRS. YOUNGBLOOD AND MRS. FLOYD THE FOLLOWING MORNING AFTER THE
SEPTEMBER 28 MEETING BUT MR. HAMLIN DENIED HER PERMISSION. A SHORT TIME
LATER AFTER A CALL TO THE UNION OFFICE HAD BEEN MADE, THEY ALL WENT TO
THE UNION OFFICE AND THIS WAS WHEN A GRIEVANCE WAS PREPARED. /14/
MR. HAMLIN TESTIFIED THAT HE ATTENDED EEO CLASSES ON SEPTEMBER 28,
1972, AND REPORTED TO THE COMMISSARY AT 3:15 P.M. AND WAS INFORMED OF
THE MEETING SCHEDULED AT 3:30 P.M. WHEN HE ARRIVED, MR. LOVE ASKED HIM
IF HE KNEW OF A PROBLEM WITH JANE FLOYD AND SHERYL YOUNGBLOOD AND HE
REPLIED THAT HE DIDN'T. MR. LOVE SUGGESTED THAT WE GET ALL OF THEM IN
THE OFFICE AND FIND OUT WHAT THE PROBLEM IS, AND SETTLE IT. MRS.
YOUNGBLOOD WAS STANDING NEARBY AND WAS REQUESTED TO CALL MRS. FLOYD AND
MRS. GREEN TO THE OFFICE. WHEN THEY ARRIVED, HE ASKED IF ANYONE CARED
TO TELL HIM WHAT THE PROBLEM WAS. BEFORE ANYONE COULD ANSWER, MRS.
GREEN ADJOURNED THE MEETING AND HE ONLY ASKED THE ONE QUESTION. HE
STATED THAT HE HAD PLACED MRS. FLOYD AND MRS. YOUNGBLOOD ON THE TWO
WEEKS TEMPORARY UNAUTHORIZED TOUR AT MRS. FLOYD'S REQUEST WHEN SHE
REPORTED THEY HAD A CONFLICT IN SCHEDULE OF CLASSES AND THAT THEY WOULD
THEN REVERT TO THEIR REGULAR SHIFT.
A NUMBER OF WITNESSES INCLUDING MRS. MURIEL E. INGRAM WHO RODE TO
WORK WITH MRS. GREEN TESTIFIED THAT SHE BECAME DISAPPOINTED WHEN SHE DID
NOT GET THE CASHIER-SUPERVISOR JOB IN NOVEMBER 1971, AND HER ATTITUDE
CHANGED TOWARD EVERYONE INCLUDING MR. LOVE. MRS. INGRAM STATED THAT SHE
AND MRS. GREEN USED TO TALK ABOUT EVERYTHING BUT AFTER SHE DIDN'T GET
THE PROMOTION, SHE SEEMED TO IGNORE ME FROM ONE DAY TO THE NEXT. MRS.
HAZEL ESTES TESTIFIED THAT SHE AND MR. HAMLIN WERE PRESENT AT A MEETING
SEVERAL DAYS BEFORE THE HEARING WHEN MRS. FLOYD WAS GETTING READY TO
LEAVE HER EMPLOYMENT AND AT THAT TIME SHE STATED MR. HAMLIN HAD ONLY
ASKED ONE QUESTION AT THE SEPTEMBER 28 MEETING:
. . . "WHAT WAS THE PROBLEM? AND SHE DID ALSO STATE THAT SHE WENT TO
GWEN AND ASKED HER ON
THIS ABOUT THE GOING TO SCHOOL WHAT COULD BE DONE, THIS
ADMINISTRATIVE LEAVE. AND AT THAT
TIME, SHE HAD NO INTENTIONS OF A GRIEVANCE OR CARRYING IT THIS FAR."
/15/
MR. HAMLIN STATED THAT MRS. FLOYD STATED TO HIM SOMETIME AFTER THE
SEPTEMBER 28 MEETING THAT "SHERYL AND I HAD BEEN DISCUSSING IT, THIS
INCIDENT, AND SHE SAID THAT WE HAD REALIZED WHAT A STOOGE WE'D BEEN."
ALSO, THAT ON THE DAY SHE LEFT EMPLOYMENT AT THE COMMISSARY, MRS. FLOYD
TOLD HIM AND MRS. ESTES THAT SHE AND SHERYL FELT THAT GWEN HAD USED
THEM. /16/
COUNSEL FOR COMPLAINANT IN HIS BRIEF CITED ARTICLE 16 OF THE
AGREEMENT AS PROVIDING:
" . . . A GRIEVANCE IS A MATTER OF PERSONAL CONCERN OR
DISSATISFACTION TO AN EMPLOYEE OR
GROUP OF EMPLOYEES ACTING AS INDIVIDUALS . . . WHICH HAS NOT BEEN
RESOLVED, AND WHICH HAS BEEN
SUBMITTED FOR MANAGEMENT'S CONSIDERATION . . . "
THE EVIDENCE DOES NOT ESTABLISH THAT THE PARTICULAR MATTER OF CONCERN
OR DISSATISFACTION TO THE SALES-STORE CHECKERS IN THIS CASE HAD BEEN
SUBMITTED FOR MANAGEMENT'S CONSIDERATION PRIOR TO THE SEPTEMBER 28,
1972, MEETING AND ATTEMPT BY THE COMMISSARY OFFICERS TO ASCERTAIN THE
SPECIFIC PROBLEM OR EDUCATIONAL MATTER OF CONCERN INVOLVED WAS THWARTED
BY THE UNION STEWARD, MRS. GREEN, AT THE SEPTEMBER 28 MEETING WHEN SHE
ABRUPTLY TERMINATED THE MEETING AT WHICH THE TWO COMMISSARY OFFICERS,
SHE, AND THE TWO EMPLOYEES CONCERNED WERE PRESENT.
IN EVALUATING THE TESTIMONY AS TO THE SEPTEMBER 28, 1972, MEETING, I
CREDIT THE TESTIMONY OF MRS. FLOYD, MRS. YOUNGBLOOD, MR. LOVE, AND MR.
HAMLIN AS MOST NEARLY REFLECTING WHAT OCCURRED THEREIN. MRS. GREEN'S
DEMEANOR ON THE WITNESS STAND WAS UNIMPRESSIVE; SHE WAS EVASIVE IN
ANSWERING QUESTIONS, SEEMED MORE INTERESTED IN THE UNION PROCEDURE AND
ASSERTING HER RIGHTS AS A STEWARD THAN RESOLVING THE MATTER OF CONCERN
REFERRED TO HER; SHE SEEMED UNCONCERNED THAT THE COMMISSARY OFFICERS
HAD NOT BEEN APPRISED OF THE EMPLOYEE MATTERS IN WHICH THEY HAD
LEGITIMATE INTEREST; AND, HER APPRAISAL OF EVENTS WAS EXAGGERATED /17/
OR INACCURATE WHEN WEIGHED WITH OTHER EVIDENCE OF RECORD.
THE ORAL TESTIMONY AND DOCUMENTARY EVIDENCE OR RECORD DOES NOT
SUPPORT THE COMPLAINT THAT AT THE MEETING ON SEPTEMBER 28, 1972, THE
RESPONDENTS EXPRESSED THEIR OPINION OF MRS. GREEN AS A PROBLEM-MAKER
TRYING TO DO MANAGEMENT'S JOB.
VIEWING THE RECORD IN ITS ENTIRETY IT APPEARS THAT (1) MR. LOVE AND
MR. HAMLIN HAD ARRANGED A SCHEDULE OF WORK TO ACCOMMODATE THE EMPLOYEES
MRS. FLOYD AND MRS. YOUNGBLOOD ON THE DAYS THEY HAD SCHOOL CLASSES TO
GET OFF IN TIME FOR THEM TO ATTEND SCHOOL; (2) THAT A CONFLICT AROSE
DURING THE TWO WEEK PERIOD THAT MR. LOVE WAS ON VACATION AND MR. HAMLIN
APPROVED A TEMPORARY PLAN THAT PERMITTED THEM TO ATTEND CLASSES WITHOUT
BEING CHARGED LEAVE; (3) THE PLAN WAS NOT ONE AUTHORIZED BY THE BASE
COMMAND AND WHEN MR. LOVE RETURNED FROM LEAVE, HE CONTACTED PERSONNEL
AND HAD A PLAN AUTHORIZED THAT WOULD PERMIT THE EMPLOYEES TO BE PAID
WITHOUT DELAY; (4) THAT ATTENDING SCHOOL BEGINNING THE OCTOBER TERM
1972 CONCERNED MRS. FLOYD, BUT THIS WAS NOT THE MATTER HER TESTIMONY
INDICATES SHE MENTIONED TO MR. LOVE REGARDING THE TWO WEEK PERIOD THAT
TEMPORARY ARRANGEMENT FOR HER SCHOOL PROGRAM HAD BEEN MADE BY MR.
HAMLIN; (5) UNTIL THE GRIEVANCE WAS FILED THE TESTIMONY OF RECORD DOES
NOT INDICATE THAT THE COMMISSARY OFFICERS WERE AWARE OF ANY SPECIFIC
MATTER OF CONCERN OR DISSATISFACTION THAT HAD BEEN PRESENTED TO THEM AND
LEFT UNRESOLVED.
WHAT OCCURRED AS CAN BEST BE ASCERTAINED IS THAT A BREAKDOWN IN
COMMUNICATIONS CAUSED PRINCIPALLY BY AN INEXPERIENCED UNION STEWARD WHO
FOR UNEXPLAINED REASONS DID NOT AID OR COOPERATE ON PRESENTING OR MAKING
KNOWN TO THE COMMISSARY OFFICERS THE MATTER OF CONCERN OF THE EMPLOYEES
SHE REPRESENTED; FURTHER, AT THE MEETING, ON SEPTEMBER SHE WOULD NOT
PERMIT THEM TO EXPLAIN THE MATTER TO THEM IN HER PRESENCE AND SHE NEVER
INFORMED THEM LATER OF THE MATTER AFTER THE MEETING AND THEY LEARNED OF
THE SPECIFIC PROBLEM AFTER A GRIEVANCE WAS FILED ON OCTOBER 6, 1972.
THE FACTS AND CIRCUMSTANCES AS TO THE INCIDENTS RELATING TO THE
EMPLOYEES SCHOOL SITUATION WERE BALLOONED OUT OF ALL PROPORTION TO THE
EMPLOYEES' MATTER OF CONCERN. THE ALLEGATIONS IN THE COMPLAINT ARE
EXAGGERATED AND ATTRIBUTE TO THE COMMISSARY MANAGERS' ACTION AND CONDUCT
FOR WHICH THE UNION STEWARD WAS PRIMARILY RESPONSIBLE.
(B) IT IS ALSO ALLEGED THAT INTERFERING WITH EMPLOYER-REPRESENTATIVE
RELATION, REQUIRING ADDITIONAL STEPS IN THE PROCESSING OF A GRIEVANCE IN
THE PRESENCE OF A NEGOTIATED PROCEDURE, DENYING OF OFFICIAL TIME FOR THE
PREPARATION OF A GRIEVANCE AND DISCOURAGING THE PURSUIT OF GRIEVANCE
WITH SUCH TACTICS AS HIGH PRESSURE QUESTIONING OF GRIEVANTS AND URGING
THEM TO CONTACT PERSONNEL RATHER THAN THE SHOP STEWARD OR TO USE EEO
PROCEDURES, INTERFERES WITH, RESTRAINS AND COERCES THE EMPLOYEES IN THE
EXERCISE OF THEIR RIGHTS IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER.
/18/
THE DISCOVERY OF A MATTER OF PERSONAL CONCERN OR DISSATISFACTION TO
AN EMPLOYEE OR GROUP OF EMPLOYEES ACTING AS INDIVIDUALS IS A SUBJECT OF
MUTUAL INTEREST TO AGENCY MANAGEMENT AND UNION REPRESENTATIVES, NOT ONE
EXCLUSIVE OF THE OTHER; THERE IS ALSO MUTUAL RESPONSIBILITY IN SHARING
AND RESOLVING SUCH MATTERS OF CONCERN THAT AFFECT EMPLOYEES AND THEIR
WORKING CONDITIONS. CERTAINLY IN THE INCIPIENT OR THE DISCOVERY STAGE
OF ASCERTAINING A PROBLEM IT IS NOT IMPROPER FOR AGENCY MANAGEMENT TO
INQUIRE AT A MEETING WHERE THE EMPLOYEES CONCERNED ARE PRESENT WITH
THEIR UNION STEWARD AS TO WHAT IS THE PROBLEM OR MATTER OF CONCERN.
COMPLAINANT ARGUES THAT SINCE MR. LOVE AND MR. HAMLIN WERE NOT INVITED
TO THE SEPTEMBER 28 MEETING WHICH HAD BEEN SET UP BY THE UNION STEWARD
FOR HER, MRS. FLOYD AND MRS. YOUNGBLOOD, THEIR PRESENCE AND QUESTIONING
OF THE LADIES CONSTITUTED A VIOLATION OF THE ORDER. MORE IMPORTANT THAN
THEIR UNINVITED APPEARANCE IS WHETHER UNDER THE CIRCUMSTANCES THERE WAS
AN INTERFERENCE, RESTRAINT OR COERCION OF EMPLOYEES IN THE EXERCISE OF
RIGHTS ASSURED THEM UNDER THE ORDER.
VIEWING THE RECORD FROM THE TIME MRS. FLOYD AND MRS. YOUNGBLOOD
ENTERED SCHOOL, IT DISCLOSES THAT THERE WAS NEVER AN OCCASION WHEN MR.
LOVE AND MR. HAMLIN FAILED TO MAKE ARRANGEMENT FOR THEM TO HAVE TIME OFF
TO ATTEND CLASSES, WITHOUT BEING CHARGED ANNUAL LEAVE, AND THEIR ACTIONS
OVER THE EXTENDED PERIOD APPEAR TO HAVE BEEN THOSE OF COOPERATION AND
LENDING ASSISTANCE RATHER THAN HINDERING OR IMPEDING THEIR SCHOOL
PROGRAM. IT IS NOT DEMONSTRATED THAT MANAGEMENT BY ATTENDING THE
MEETING SCHEDULED ON SEPTEMBER 28 INTENDED OR ACTED IN A MANNER OTHER
THAN TO ASSIST THE UNION REPRESENTATIVE AND THE EMPLOYEES TO RESOLVE
WHATEVER MATTER THAT MAY HAVE BEEN OF CONCERN TO THEM. CERTAINLY NO
IMPROPER MOTIVES ARE SUBSTANTIAL ON THE BASIS OF THEIR PRIOR
RELATIONSHIP WITH THE EMPLOYEES OR BY THEIR ACTION AT THE MEETING.
WHATEVER MRS. GREEN'S REASONS MAY HAVE BEEN FOR ABRUPTLY TERMINATING
THE MEETING IT APPEARS BLATANT FROM THE EVIDENCE IN THIS CASE FOR HER
PROVOCATIVE ACTION. NEITHER DID COMPLAINANT OR MRS. GREEN OFFER AT THE
HEARING A PLAUSIBLE EXPLANATION FOR SUCH ACTION. TESTIMONY OF SEVERAL
OTHER WITNESSES INCLUDING A CHIEF UNION STEWARD AT THE COMMISSARY LEND
SUPPORT TO THE COURSE OF CONDUCT FOR MANY YEARS FOLLOWED BY MR. LOVE AND
MR. HAMLIN IN DEALING WITH EMPLOYEES AND THEIR COOPERATIVE AND MUTUALLY
RESPECTIVE EFFORT WITH THE UNION IN RESOLVING PROBLEMS.
I FIND UNDER THE CIRCUMSTANCES OF THIS PARTICULAR CASE, THAT MR.
LOVE AND MR. HAMLIN WERE ATTEMPTING TO HELP OR ASSIST THE EMPLOYEES MRS.
FLOYD AND MRS. YOUNGBLOOD AND THE UNION STEWARD AT THE TIME OF THE
SEPTEMBER 28 MEETING WHICH WAS TERMINATED BY MRS. GREEN; FURTHER, THAT
COMPLAINANT HAS NOT SUSTAINED ITS BURDEN OF PROOF IN ESTABLISHING THAT
RESPONDENT DENIED EMPLOYEES OFFICIAL TIME FOR PREPARATION OF A GRIEVANCE
OR DISCOURAGED THEM FROM PURSUIT OF A GRIEVANCE BY HIGH PRESSURE
QUESTIONING AND URGING THEM TO USE EEO PROCEDURES OR CONTACT PERSONNEL
RATHER THAN THE UNION STEWARD.
I ALSO FIND FROM A REVIEW OF THE ORAL AND DOCUMENTARY EVIDENCE THAT
(C) THE RECORD DOES NOT ESTABLISH THAT THE RESPONDENTS FAILED TO
CONSULT, CONFER, OR NEGOTIATE WITH THE COMPLAINANT UNION IN VIOLATION OF
SECTION 19(A)(6) OF THE ORDER.
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
RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF THE ORDER.
UPON THE BASIS OF THE ABOVE FINDINGS, CONCLUSION, AND THE ENTIRE
RECORD, I RECOMMENDED THAT (1) THE RESPONDENTS' MOTION TO DISMISS THE
PROCEEDINGS BE DENIED, AND (2) THAT THE COMPLAINT HEREIN AGAINST THE
RESPONDENT BE DISMISSED.
DATED AT WASHINGTON, D.C. THIS 30TH DAY OF AUGUST 1973.
/1/ THE INITIAL COMPLAINT WAS ERRONEOUSLY FILED AT THE REGIONAL
OFFICE, U.S. DEPARTMENT OF LABOR, AND TO CORRECT THE FIRST AMENDED
COMPLAINT WAS FILED WITH THE REGIONAL ADMINISTRATOR ON JANUARY 10, 1973.
THE SECOND AMENDED COMPLAINT WAS FILED JANUARY 15, 1973, AND WITHDREW
THAT PART OF THE CHARGE ALLEGING VIOLATION OF SECTION 19(A)(2) OF THE
ORDER.
/2/ GWENDOLYN R. GREEN, LOCAL 987 AFGE STEWARD.
/3/ 29 CFR 203.6(A)(3) PROVIDES:
(A) THE REGIONAL ADMINISTRATOR SHALL TAKE ACTION WHICH MAY CONSIST OF
THE FOLLOWING AS APPROPRIATE:
(2) DISMISS THE COMPLAINT.
(3) APPROVE A WRITTEN SETTLEMENT AGREEMENT BETWEEN THE PARTIES OR
WRITTEN OFFER OF SETTLEMENT BY THE RESPONDENT, MADE ANYTIME PRIOR TO THE
CLOSE OF A HEARING, IF ANY.
/4/ AT THE HEARING, MRS. GREEN TESTIFIED THAT SHE BECAME A SHOP
STEWARD AT THE COMMISSARY STORE ABOUT JULY 1972 (TRANSCRIPT, PAGE 225).
/5/ TRANSCRIPT, PAGES 105 AND 106.
/6/ TRANSCRIPT, PAGES 194 AND 195.
/7/ TRANSCRIPT, PAGE 255.
/8/ TRANSCRIPT, PAGE 267.
/9/ THIS WAS ALSO BROUGHT OUT ON CROSS-EXAMINATION OF MRS. FLOYD AND
MRS. YOUNGBLOOD.
/10/ TRANSCRIPT, PAGES 35, 44, AND 56.
/11/ 29 CFR PART II, 203.5(C).
/12/ TRANSCRIPT, PAGE 97.
/13/ TRANSCRIPT, PAGE 229.
/14/ TRANSCRIPT, PAGES 230 AND 231.
/15/ TRANSCRIPT, PAGE 371.
/16/ TRANSCRIPT, PAGES 151 AND 152.
/17/ MR. FLOYD TESTIFIED THAT MR. HAMLIN DID NOT SAY ANYTHING AT THE
MEETING OTHER THAN TO ASK THE QUESTION: "WHAT IS THE PROBLEM?" AND MRS.
YOUNGBLOOD HEARD HIM SAY THIS WAS AN EEO CASE. I CREDIT MR. LOVE'S AND
MR. HAMLIN'S TESTIMONY THAT THE ONLY EEO MATTER MENTIONED WAS THE SCHOOL
WHICH MR. HAMLIN WAS ATTENDING.
/18/ SECTION 1(A) OF THE ORDER 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 SUCH ACTIVITY, AND EACH EMPLOYEE
SHALL BE PROTECTED IN THE EXERCISE OF THIS RIGHT . . . "