United States Customs Service, Region V, New Orleans, Louisiana (Respondent) and National Treasury Employees Union and NTEU Chapter 168 (Complainant)
[ v04 p302 ]
04:0302(42)CA
The decision of the Authority follows:
4 FLRA No. 42
UNITED STATES CUSTOMS SERVICE,
REGION V,
NEW ORLEANS, LOUISIANA
Respondent
and
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU CHAPTER 168
Complainant
Assistant Secretary
Case Nos. 64-4248(CA)
64-4250(CA)
64-4251(CA)
64-4252(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINTS AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THE ADMINISTRATIVE LAW JUDGE
RECOMMENDED THAT CERTAIN OTHER ALLEGATIONS OF THE COMPLAINTS BE
DISMISSED. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER IN CASE NO.
64-4252(CA) AND THE COMPLAINANT FILED EXCEPTIONS TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER IN CASE NOS. 64-4250(CA),
64-4251(CA) AND 64-4252(CA). NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER IN CASE NO.
64-4248(CA).
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(0) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THESE CASES,
INCLUDING THE PARTIES' EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS
MODIFIED BELOW. /1/
IN CASE NO. 64-4252(CA), THE ADMINISTRATIVE LAW JUDGE CONCLUDED THE
COMPLAINT ENCOMPASSED AN ALLEGATION THAT THE RESPONDENT'S MEMORANDUM OF
JULY 7, 1978, CONSTITUTED A BYPASS OF THE EXCLUSIVE REPRESENTATIVE IN
VIOLATION OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER AS IT
DIRECTLY SOLICITED RECOMMENDATIONS FROM UNIT EMPLOYEES. NEITHER THE
PRE-COMPLAINT CHARGE NOR THE COMPLAINT CONTAINS SUCH AN ALLEGATION.
MOREOVER, THE RESPONDENT OBJECTED TO THE CONSIDERATION OF THIS
ALLEGATION WHEN FIRST RAISED AT THE HEARING. ACCORDINGLY, THE
ALLEGATION SHALL BE DISMISSED AS PROCEDURALLY DEFECTIVE UNDER SECTIONS
203.2 AND 203.3 OF THE ASSISTANT SECRETARY'S REGULATIONS WHICH REQUIRE
THAT AN ALLEGATION BE CONTAINED IN THE PRE-COMPLAINT CHARGE AND IN THE
COMPLAINT. CF. DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND
PRINTING, 4 FLRA NO. 6, DEPARTMENT OF THE ARMY, HEADQUARTERS, MILITARY
TRAFFIC COMMAND, 2 FLRA NO. 72.
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE UNITED STATES CUSTOMS SERVICE, REGION V, NEW ORLEANS,
LOUISIANA, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED PAST PRACTICE,
AS IT EXISTED PRIOR TO MAY 31, 1978, OF REPORTING AIRCRAFT
DISCREPANCIES, INCLUDING DISCUSSION OF SUCH DISCREPANCIES WITH AIRCRAFT
MECHANICS, WITHOUT FIRST BARGAINING IN GOOD FAITH WITH NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 168, THE EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO THE FULL EXTENT
CONSONANT WITH LAW.
(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 ACTION TO EFFECTUATE THE PURPOSES
AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) WITHDRAW THE MEMORANDUM, ISSUED BY MR. RAYMOND E. HALFACRE,
CHIEF, AIR SUPPORT BRANCH, AND DATED MAY 31, 1978, ENTITLED "POLICY ON
REPORTING MAINTENANCE DISCREPANCIES AND DUTIES OF SUPPLYMEN."
(B) POST AT ALL FACILITIES AND INSTALLATIONS OF THE UNITED STATES
CUSTOMS SERVICE, REGION V, NEW ORLEANS, LOUISIANA, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE REGIONAL COMMISSIONER, UNITED STATES CUSTOMS
SERVICE, REGION V, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED, INCLUDING, BUT NOT LIMITED TO, SUCH BULLETIN BOARDS
AND OTHER PLACES IN THE AIR SUPPORT BRANCH. THE REGIONAL COMMISSIONER
SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINTS IN ASSISTANT SECRETARY CASE
NOS. 64-4250(CA), 64-4251(CA), AND 64-4252(CA) BE, AND THEY HEREBY ARE,
DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 29, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
PRACTICE, AS IT EXISTED PRIOR TO MAY 31, 1978, OF REPORTING AIRCRAFT
DISCREPANCIES, INCLUDING DISCUSSION OF SUCH DISCREPANCIES WITH AIRCRAFT
MECHANICS, WITHOUT FIRST BARGAINING IN GOOD FAITH WITH NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 168, THE EXCLUSIVE REPRESENTATIVE OF
OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO THE FULL EXTENT
CONSONANT WITH LAW.
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 WITHDRAW THE MEMORANDUM, ISSUED BY MR. RAYMOND E. HALFACRE,
CHIEF, AIR SUPPORT BRANCH, AND DATED MAY 31, 1978, ENTITLED "POLICY ON
REPORTING MAINTENANCE DISCREPANCIES AND DUTIES OF SUPPLYMEN."
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . REGIONAL COMMISSIONER
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, REGION VI,
WHOSE ADDRESS IS: ROOM 450, OLD POST OFFICE BUILDING, BRYAN & ERVAY
STREETS, DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS (212)
767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
HENRY M. ROBINSON, ESQUIRE
ASSOCIATE GENERAL COUNSEL
NATIONAL TREASURY EMPLOYEES UNION
SUITE 104
300 EAST HUNTLAND DRIVE
AUSTIN, TEXAS 78752
ON BRIEF: ROB N. ROBERTSON, ESQUIRE
ASSOCIATE COUNSEL
B. CRAIG DEATS, ESQUIRE
ASSOCIATE COUNSEL
AUSTIN, TEXAS
FOR THE COMPLAINANT
ELIZABETH BRIGMAN, ESQUIRE
ASSOCIATE REGIONAL COUNSEL
UNITED STATES CUSTOMS SERVICE
SUITE 2420
CANAL LASALLE BUILDING
1440 CANAL STREET
NEW ORLEANS, LOUISIANA 70112
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS PROCEEDING, UNDER EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER
ALSO REFERRED TO AS THE "ORDER"), INVOLVES FOUR SEPARATE AND DISTINCT
CASES BETWEEN COMMON PARTIES. ALTHOUGH INSTITUTED BEFORE THE
LABOR-MANAGEMENT SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF
LABOR, PURSUANT TO TRANSITION RULES AND REGULATIONS, FEDERAL REGISTER,
VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION 2400.21, ALL
PROCEEDINGS AFTER JANUARY 1, 1979, HAVE BEEN CONDUCTED BEFORE THE
AUTHORITY, THE NOTICE OF HEARING WAS ISSUED BY A REGIONAL DIRECTOR OF
THE AUTHORITY, AND THIS DECISION IS ISSUED IN THE NAME OF THE AUTHORITY
PURSUANT TO THE TRANSITION RULES AND REGULATIONS WHICH HAVE BEEN
REPUBLISHED AS SUBCHAPTER A OF CHAPTER XIV, FED. REG. VOL. 44, NO. 147,
JULY 30, 1979.
THE CHARGE IN CASE NO. 64-4248 (CA) WAS FILED ON, OR ABOUT, JULY 10,
1978, AND THE COMPLAINT WAS FILED ON SEPTEMBER 11, 1978 (ALJ EX. 1).
THE CHARGE IN CASE NO. 64-4250 (CA) WAS ALSO FILED ON, OR ABOUT, JULY
10, 1978, AND THE COMPLAINT WAS FILED ON SEPTEMBER 11, 1978 (ALJ EXH.
2). THE CHARGE IN CASE NO. 64-4251 (CA) WAS FILED ON, OR ABOUT, JUNE
23, 1978, AND THE COMPLAINT WAS FILED ON SEPTEMBER 13, 1978 (ALJ EXH.
3). THE CHARGE IN CASE NO. 64-4252 (CA) WAS FILED ON, OR ABOUT, JULY
10, 1978, AND THE COMPLAINT WAS FILED ON SEPTEMBER 13, 1978 (ALJ EXH.
4). ON MAY 7, 1979, THE REGIONAL DIRECTOR ISSUED AN ORDER CONSOLIDATING
CASES (ALJ EXH. 5) AND ON THE SAME DATE THE REGIONAL DIRECTOR ISSUED A
NOTICE OF HEARING ON COMPLAINT (ALJ EXH. 6) FOR A HEARING ON JUNE 26,
1979. ON MAY 8, 1979, THIS OFFICE RECEIVED A MOTION, DATED MAY 2, 1979,
BY COMPLAINANT, CONCURRED IN BY RESPONDENT, THAT CONSOLIDATED UNFAIR
LABOR PRACTICE CASES BE HEARD CONSECUTIVELY AND ON MAY 23, 1978, THE
UNDERSIGNED ISSUED AN ORDER CLARIFYING ORDER OF PROOF UNDER ORDER
CONSOLIDATING CASES (ALJ EXH.7) WHICH PROVIDED, INTER ALIA, THAT THE
CASES WOULD BE HEARD SERIATIM, THAT, UNLESS BOTH PARTIES AGREED TO THE
CONTRARY, THE FIRST CASE TO BE HEARD WOULD BE CASE NO. 64-4248 (CA),
COMMENCING ON JUNE 26, 1979, IN NEW ORLEANS, LOUISIANA, AND THAT EACH
OTHER CASE WOULD BEGIN AT THE CONCLUSION OF THE PRECEEDING CASE. /2/
THE CASES WERE HEARD SERIATIM BEGINNING WITH CASE NO. 64-4248 (CA) AND,
AT THE REQUEST OF THE PARTIES, FOLLOWED BY CASE NO. 64-4252 (CA),
64-4250 (CA), AND CONCLUDING WITH 64-4251 (CA), ON JUNE 26, 27, 28 AND
29, 1979, IN NEW ORLEANS, LOUISIANA.
ALL PARTIES WERE REPRESENTED AT THE HEARING BY ABLE COUNSEL, WERE
AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED
HEREIN AND WERE AFFORDED THE OPPORTUNITY TO PRESENT ORAL ARGUMENT. AT
THE CONCLUSION OF THE HEARING, AT THE REQUEST OF THE PARTIES AND FOR
GOOD CAUSE SHOWN, SEPTEMBER 28, 1979, WAS FIXED AS THE DATE FOR THE
MAILING OF BRIEFS, WHICH TIME WAS SUBSEQUENTLY EXTENDED, AT THE JOINT
REQUEST OF THE PARTIES AND FOR GOOD CAUSE SHOWN, TO OCTOBER 5, 1979.
EACH PARTY HAS SUBMITTED A VERY HELPFUL BRIEF, TIMELY MAILED, RECEIVED
BY THE OFFICE ON OCTOBER 10, 1979, WHICH HAVE BEEN CAREFULLY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND RECOMMENDED ORDER.
I. CASE NO. 64-4248 (CA)
THIS CASE INVOLVES THE MANNER OF REPORTING AIRCRAFT EQUIPMENT
MALFUNCTIONS TO AIRCRAFT MECHANICS. RESPONDENT HAS A CONTRACT WITH
SERV. AIR., INC., A PRIVATE CONTRACTOR, FOR MAINTENANCE AND REPAIR OF
ITS AIRCRAFT. EACH PILOT IS REQUIRED TO RECORD ON THE AIRCRAFT LOG ANY
MALFUNCTION OF EQUIPMENT. THERE IS NO DISPUTE WHATEVER THAT THE
PRACTICE AND PROCEDURE PRIOR TO MAY 31, 1978, HAD BEEN THAT THE PILOT
WOULD DISCUSS THE MALFUNCTIONS WITH THE MECHANIC, AN EMPLOYEE OF
SERV-AIR. THERE IS ALSO NO DISPUTE THAT DIRECT DISCUSSION OF SUCH
MALFUNCTIONS WAS CONSIDERED ESSENTIAL TO A PROPER DIAGNOSIS OF THE
PROBLEM AND FOR PROPER CORRECTIVE ACTION. FOR EXAMPLE, CERTAIN PROBLEMS
WOULD OCCUR DURING FLIGHT THAT WOULD NOT BE EVIDENT WHEN THE AIRCRAFT
WAS ON THE GROUND; OR BY UNDERSTANDING WHAT OCCURRED AND UNDER WHAT
CIRCUMSTANCES, A PROBLEM WHICH, ON THE SURFACE, APPEARED TO INVOLVE ONE
ITEM OF EQUIPMENT MIGHT, IN FACT, BE CAUSED BY SOME OTHER ITEM OF
EQUIPMENT.
NEVERTHELESS, MR. RAYMOND E. HALFACRE, CHIEF, AIR SUPPORT BRANCH, ON
MAY 31, 1978, ISSUED A MEMORANDUM, ADDRESSED TO "ALL AIR SUPPORT BRANCH
PERSONNEL", ENTITLED "POLICY ON REPORTING MECHANICAL DISCREPANCIES AND
DUTIES OF SUPPLYMEN" WHICH PROVIDED, IN RELEVANT PART, AS FOLLOWS:
"WHEN A DISCREPANCY IS ENCOUNTERED CONCERNING A MAINTENANCE PROBLEM,
THE PROPER PROCEDURE
TO FOLLOW IS TO REPORT THE DISCREPANCY TO YOUR SUPERVISOR. THE
SUPERVISOR WILL THEN DISCUSS
THE DISCREPANCY WITH THE MAINTENANCE SUPERVISOR. AT NO TIME IS A
PILOT OR AIR OFFICER TO GO
DIRECTLY TO A MECHANIC, ELECTRICIAN, SUPPLYMAN OR MAINTENANCE
SUPERVISOR AND COMPLAIN TO HIM
ABOUT THE PROBLEM." (JT. EXH. 6) "DISCREPANCY" IS DEFINED AS "1.
STATE OR QUALITY OF BEING DISCREPANT; ALSO, AN INSTANCE OF THIS;
DISAGREEMENT; VARIANCE . . . "; "DISCREPANT" IS DEFINED AS "1.
DISCORDANT; AT VARIANCE; DISAGREEING; CONTRARY; DIFFERENT."
(WEBSTER'S NEW INTERNATIONAL DICTIONARY, 2D/ED. 1958). MR. JAMES W.
THORNTON, NATIONAL FIELD REPRESENTATIVE, NATIONAL TREASURY EMPLOYEES
UNION, WHO WAS AN AIRCRAFT MECHANIC, AIRCRAFT FLIGHT MECHANIC,
INSTRUCTOR FOR AIRCRAFT MAINTENANCE, AND A SUPERVISOR OF AIRCRAFT
MAINTENANCE FOR MORE THAN 16 YEARS IN THE UNITED STATES AIR FORCE,
TESTIFIED THAT MAINTENANCE DISCREPANCY, IN HIS EXPERIENCE, MEANT "ANY
DEVIATION FROM THE NORM OF AN AIRCRAFT, FROM THE POSITION SUPPOSEDLY 100
PERCENT PERFECT." MR. THORNTON FURTHER TESTIFIED THAT, IN HIS
EXPERIENCE, ANYONE INVOLVED WITH AIRCRAFT-- PILOTS, MECHANICS, ETC.,
USED THE TERM "MAINTENANCE DISCREPANCY", THAT A PILOT USES THE TERM TO
DESCRIBE A DEFECT THAT HE HAS DISCOVERED IN THE AIRCRAFT DURING THE TIME
THAT HE WAS OPERATING IT; THAT A MECHANIC WOULD USE HIS OWN JUDGMENT OR
HIS OWN TRAINING AND KNOWLEDGE TO TAKE WHATEVER CORRECTIVE ACTION TO
CLEAR THAT MAINTENANCE DISCREPANCY AND WOULD "CLEAR" THE MAINTENANCE
DISCREPANCY "BY SIGNING IT OFF AND STATING WHAT CORRECTIVE ACTION HAS
BEEN TAKEN." INDEED, RESPONDENT'S MAINTENANCE LOG IS ENTITLED "AIRCRAFT
DISCREPANCIES REPORT" AND TO THE LEFT SIDE OF THE FORM STATES: "PILOTS
INSTRUCTION: CHECK DELAYED DISCREPANCY FORM DISCREPANCY. STATE
EQUIPMENT AND MALFUNCTION. IF APPLICABLE, RECORD ALL GAUGE READINGS
THAT WOULD CONTRIBUTE TO THE RESOLUTION OF THE PROBLEM. CIRCLE
GROUNDING DISCREPANCIES." THEN FOLLOW LINES FOR ENTRY OF DISCREPANCIES
WITH A COLUMN ENTITLED "NO." THE RIGHT HALF OF THE FORM IS ENTITLED
"ACTION TAKEN"; HAS A CORRESPONDING COLUMN FOR "NO." OF THE DEFICIENCY,
ACTION TAKEN, AND NAME OF MECHANIC. (JT. EXH. 9).
THE TESTIMONY OF ALL WITNESSES AS TO THE MEANING OF MAINTENANCE
DISCREPANCY AND/OR DISCREPANCY IS FULLY CONSISTENT WITH THE TESTIMONY OF
MR. THORNTON AND THE USE OF DISCREPANCY ON RESPONDENT'S LOG FORM.
ACCORDINGLY, I CONCLUDE THAT MR. HALFACRE'S MEMORANDUM OF MAY 31, 1978
(JT. EXH. 6) MEANT, TO ALL PILOTS AND AIR OFFICERS, PRECISELY WHAT IT
SAID, NAMELY, THAT "AT NO TIME IS A PILOT OR AIR OFFICER TO GO DIRECTLY
TO A MECHANIC, ELECTRICIAN, SUPPLYMAN OR MAINTENANCE SUPERVISOR AND
COMPLAIN TO HIM ABOUT THE PROBLEM"; THAT, TO THE CONTRARY, "WHEN A
DISCREPANCY IS ENCOUNTERED CONCERNING A MAINTENANCE PROBLEM, THE PROPER
PROCEDURE . . . IS TO REPORT THE DISCREPANCY TO YOUR SUPERVISOR. THE
SUPERVISOR WILL THEN DISCUSS THE DISCREPANCY WITH THE MAINTENANCE
SUPERVISOR." (JT. EXH. 6).
THE MEMORANDUM OF MAY 31, 1978 (JT. EXH. 6) WAS POSTED BY RESPONDENT
WITHOUT PRIOR NOTIFICATION TO COMPLAINANT, WAS EFFECTIVE IMMEDIATELY,
AND WAS ALSO POSTED AT THE FACILITIES OF SERV-AIR, INC. COMPLAINANT DID
NOT DEMAND TO NEGOTIATE AS TO IMPACT OR IMPLEMENTATION BECAUSE, AS MR.
OSCAR J. VERA, ASSOCIATE CHIEF STEWARD FOR CHAPTER 168, TESTIFIED, " . .
. THE MEMORANDUM HAD BEEN POSTED FOR ALL EMPLOYEES IN THE AIR SUPPORT
BRANCH TO SEE, AND IT HAD ALREADY BEEN IMPLEMENTED."
IT IS UNFORTUNATE THAT RESPONDENT ACTED UNILATERALLY SINCE IT PLAINLY
APPEARS FROM MR. HALFACRE'S TESTIMONY THAT HE DID NOT INTEND TO CHANGE
THE ESTABLISHED POLICY AND PROCEDURE AS HIS MEMORANDUM HAD DONE. THUS,
MR. HALFACRE TESTIFIED,
"THE POLICY AT THE AIR BRANCH HAS ALWAYS BEEN, AND AS LONG AS I AM
THE CHIEF OF THE AIR
BRANCH, ALWAYS WILL BE, THAT A PILOT AND A MECHANIC MUST TALK TO EACH
OTHER, MUST DISCUSS
MAINTENANCE DISCREPANCIES IN AIRCRAFT. IT IS VERY NECESSARY THAT
THIS BE DONE. THIS FACT HAS
BEEN BROUGHT OUT TODAY BY MANY PEOPLE, AND I AGREE WITH THEM 100
PERCENT . . . " (TR. 95). TO BE SURE, MR. HALFACRE TESTIFIED THAT
SOMETIME AFTER THE MEMORANDUM HAD BEEN POSTED, THE DATE WAS NOT FIXED,
HE TOLD MR. MEEK KIKER, A PILOT, THAT THE MEMORANDUM DID NOT MEAN THAT
PILOTS WERE NOT TO TALK TO MECHANICS DIRECTLY. MR. KIKER SUPPORTED MR.
HALFACRE'S TESTIMONY AND SAID THAT MR. CHAMBERS, ALSO A SUPERVISOR, HAD
TOLD HIM THE SAME THING. MR. CHAMBERS TESTIFIED THAT HE WAS ASKED
ABOUT THE MEMORANDUM A WEEK OR TWO WEEKS AFTER IT HAD BEEN POSTED.
NEVERTHELESS, RESPONDENT DID NOT WITHDRAW THE MEMORANDUM; DISCUSSIONS
BETWEEN PILOTS AND AIR OFFICERS AND MECHANICS, EXCEPT POSSIBLY BY MR.
KIKER, CEASED AND DISCREPANCIES WERE REPORTED TO SUPERVISORS
(RESPONDENT'S) WHO, IN TURN REPORTED THE DISCREPANCIES TO THE
MAINTENANCE SUPERVISOR. AFTER THREE OR FOUR MONTHS, THE PILOTS AND AIR
OFFICERS, AS WELL AS MECHANICS, FOUND THE SYSTEM UNWORKABLE; MECHANICS
BEGAN MEETING THE PLANES AGAIN; AND A DISCUSSION OF DISCREPANCIES WITH
THE MECHANICS RESUMED, BUT WITHOUT ANY CHANGE IN WRITTEN POLICY.
THE CHANGE OF POLICY, UNILATERALLY IMPLEMENTED, BY RESPONDENT ON MAY
31, 1978, DIRECTLY AFFECTED WORKING CONDITIONS AND, ASSUMING THAT SUCH
CHANGE WAS A RESERVED RIGHT OF MANAGEMENT WITHIN THE MEANING OF SECTION
11(B) AND/OR 12(B) OF THE ORDER, RESPONDENT WAS, NEVERTHELESS, OBLIGATED
TO AFFORD COMPLAINANT A REASONABLE OPPORTUNITY PRIOR TO IMPLEMENTATION
OF THE CHANGE TO NEGOTIATE CONCERNING THE IMPACT AND IMPLEMENTATION OF
THE CHANGE OF POLICY. RESPONDENT, BY ITS UNILATERAL IMPLEMENTATION OF
THE CHANGE OF POLICY VIOLATED SECTION 19(A)(6) AND, DERIVATIVELY,
19(A)(1) OF THE ORDER. DEPARTMENT OF DEFENSE, DEPARTMENT OF THE NAVY,
CONSOLIDATED CIVILIAN PERSONNEL OFFICE, 1 FLRA NO. 80(1979), SEE, ALSO,
DEPARTMENT OF THE AIR FORCE, 47TH FLYING TRAINING WING, LAUGHLIN AIR
FORCE BASE, TEXAS, 1 FLRA NO. 81(1979), ORDER RESCINDING DECISION AND
ORDER IN 1 FLRA NO. 81, ISSUED AUGUST 23, 1979, BECAUSE OF NON-RECEIPT
OF COMPLAINANT'S EXCEPTIONS AND SUPPORTING BRIEF; AFGE LOCAL 1940 AND
PLUM ISLAND ANIMAL DISEASE LABORATORY, DEPT. OF AGRICULTURE, GREENPORT,
N.Y., FLRC NO. 71A-11, 1 FLRC 100(1971); UNITED STATES DEPARTMENT OF
NAVY, BUREAU OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL,
ILLINOIS, A/SLMR NO. 289, 3 A/SLMR 375(1973); DEPARTMENT OF THE NAVY,
SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR, PASCAGOLIA,
MISSISSIPPI, A/SLMR NO. 390, 4 A/SLMR 324(1974); DEPARTMENT OF THE
ARMY, HEADQUARTERS, UNITED STATES ARMAMENT COMMAND, ROCK ISLAND ARSENAL,
ROCK ISLAND, ILLINOIS, A/SLMR NO. 527, 5 A/SLMR 412(1975); SOUTHEAST
EXCHANGE REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD
WAREHOUSE, COLUMBIA, SOUTH CAROLINA, A/SLMR NO. 656, 6 A/SLMR 237(1976).
II. CASE NO. 64-4252
THIS CASE INVOLVES THE REVISION OF THE WEEKLY ACTIVITY REPORTS OF AIR
SUPPORT PILOTS AND AIR OFFICERS. WRITTEN ACTIVITY REPORTS IN THE AIR
SUPPORT BRANCH HAVE BEEN REQUIRED SINCE 1975 (RES. EXH. 2) EXCEPT FOR A
SHORT PERIOD IN 1977 WHEN THE WEEKLY ACTIVITY REPORT WAS CANCELLED (RES.
EXH. 3); BUT ON SEPTEMBER 14, 1977, THE REQUIRED WEEKLY ACTIVITY REPORT
WAS REINSTATED (RES. EXH. 4). FROM 1975, THE REPORT, FILED WEEKLY, HAD
CONSISTED OF A NARRATIVE STATEMENT OF DAILY ACTIVITY. RESPONDENT'S
EXHIBIT 2 WAS ISSUED IN 1975 AS AN EXAMPLE OF THE DESIRED FORMAT, WHICH
WAS THEREAFTER FOLLOWED AS TO FORM IF NOT CONTENT (COMPARE, COMP. EXH.
2), UNTIL SOMETIME IN 1978 WHEN CUSTOMS HEADQUARTERS IN WASHINGTON, D.C.
REQUIRED THAT ADDITIONAL INFORMATION BE SUPPLIED FOR STATISTICAL
PURPOSES. CUSTOMS FORM 16 (COMP. EXH. 1) (ALSO REFERRED TO AS THE "16 M
& N") WAS SUPPLIED BY HEADQUARTERS AS A GUIDE AND, FOR SOME TIME IN
1978, EACH PILOT AND EACH AIR OFFICER FILLED OUT A FORM 16 FOR EACH DAY
PLUS THE NARRATIVE STATEMENT. AS A RESULT, THERE WAS A GREAT
PROLIFERATION OF PAPER AS EACH PILOT AND AIR OFFICER THEN SUBMITTED, FOR
EACH FULL WORKWEEK, SIX DOCUMENTS (I.E. ONE FORM 16 FOR EACH DAY PLUS
THE NARRATIVE STATEMENT) RATHER THAN THE SINGLE NARRATIVE STATEMENT.
INSTITUTION OF THE USE OF CUSTOMS FORM 16, TOGETHER WITH THE NARRATIVE
WEEKLY ACTIVITY REPORT, IS NOT INVOLVED IN THIS CASE. INDEED, IT IS THE
MODIFICATION OF THIS ACCEPTED PROCEDURE THAT CONSTITUTES THE BASIS FOR
THE ALLEGED VIOLATION.
THERE IS NO DISPUTE THAT THE PARTIES MET AND JOINTLY WORKED OUT A
SIMPLIFIED, ONE PAGE FORM WHICH COMPLAINANT'S REPRESENTATIVE, ASSOCIATE
CHIEF STEWARD VERA, STATED THAT HE, PERSONALLY, THOUGHT WAS GOOD, BUT
THAT, HE WANTED TO POLL THE OTHER UNIT EMPLOYEES BEFORE "SIGNING OFF."
THERE ARE TWO SOMEWHAT DIFFERENT ISSUES INVOLVED. FIRST, DID RESPONDENT
VIOLATE SECTION 19(A)(6), AND DERIVATIVELY,19(A)(1) OF THE ORDER BY
IMPLEMENTING USE OF THE FORM ON JULY 7, 1978? SECOND, DID RESPONDENT
BYPASS COMPLAINANT, IN VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE
ORDER, BY DIRECTLY SOLICITING RECOMMENDATIONS FROM UNIT EMPLOYEES FOR
IMPROVEMENT OF THE FORM?
A) IMPLEMENTATION OF THE NEW FORM
THE CHIEF OF THE AIR SUPPORT BRANCH, MR. HALFACRE, WAS DISSATISFIED
WITH CUSTOMS FORM 16 AND IN EARLY JULY, 1978, MR. HALFACRE ASSIGNED MR.
GARY SCHOELERMAN, AN AIR SUPPORT BRANCH SUPERVISOR, THE JOB OF DEVISING
A NEW FORM WHICH WOULD BE SIMPLER AND SHORTER. ON JULY 5, 1978, MR.
SCHOELERMAN CONTACTED ASSOCIATE CHIEF STEWARD VERA AND REQUESTED HIS
ASSISTANCE IN REVISING THE FORM. MR. VERA, WHO FULLY SHARED MR.
HALFACRE'S DISSATISFACTION WITH CUSTOMS FORM 16, READILY GAVE HIS
ASSISTANCE IN DEVISING A NEW FORM (ATTACHMENT TO JOINT EXH. 10).
INDEED, MR. VERA TESTIFIED THAT ON JULY 5, HE MADE THE FOLLOWING
STATEMENT TO MR. SCHOELERMAN:
"A. I ADVISED HIM THAT I WAS CONCERNED THAT-- AT THE NUMBER OF
PIECES OF PAPER THAT WERE
HAVING TO BE GENERATED BY THE INDIVIDUAL OFFICER. FOR EXAMPLE, WE
HAVE BASICALLY AT THAT
TIME, I THINK, TEN BARGAINING UNIT MEMBERS. EACH BARGAINING UNIT
MEMBER WAS GENERATING AT
LEAST FIVE CF-16'S PLUS THE NARRATIVE MEMORANDUM. THAT IS SIXTY
PIECES OF PAPER BEING
GENERATED BY THE EMPLOYEES. AND I SUGGESTED TO HIM THAT MAYBE WE
COULD FIND A WAY TO
CONSOLIDATE THIS STATISTICS GATHERING WHERE WE COULD ONLY USE MAYBE
ONE OR TWO FORMS ON A
WEEKLY BASIS, RATHER THAN A DAILY BASIS.
* * * *
"A. I ADVISED HIM THAT I WOULD LIKE TO WORK WITH HIM AND GET INPUT
AND POLL ALL THE
EMPLOYEES CONCERNED IN THE UNIT SINCE I SAW THAT THIS-- ANY CHANGE
THAT WE MADE ON THIS THING
WOULD HAVE A VERY DEFINITE IMPACT AS TO THE MEASUREMENT OF WORK
PRODUCTIVITY OR WHATEVER USE
THAT MIGHT BE MADE OF THE STATISTICS. SO I DEFINITELY WANTED TO GET
ALL THE EMPLOYEES' INPUT
ON THE THING." (TR. 207-208).
MR. VERA DISCUSSED REVISION OF THE FORM WITH EMPLOYEES ON JULY 5,
INCLUDING MESSRS. KIKER AND JOACHIM; MR. KIKER SUGGESTED THAT MOBILE
USED A ONE PAGE FORM AND A COPY OF THE MOBILE FORM WAS FURNISHED MR.
VERA AND MR. SCHOELERMAN; AND, ALSO ON JULY 5, MR. VERA DISCUSSED THE
MATTER WITH MR. ARGENT ACOSTA, PRESIDENT OF NTEU CHAPTER 168. ON JULY
6, MR. SCHOELERMAN HAD THE FORM, AS DEVISED BY THE PARTIES ON JULY 5
AND 6, TYPED AND A COPY OF THE FINAL VERSION WAS GIVEN TO MR. VERA.
THIS FORM CONSISTED OF A SINGLE PAGE. ON ONE SIDE, FOR THE NARRATIVE
STATEMENT OF DAILY ACTIVITY, EACH DAY OF THE WEEK (SUNDAY THROUGH
SATURDAY) WAS LISTED WITH A BLANK SPACE FOR INSERTION OF THE NARRATIVE
STATEMENT OF DAILY ACTIVITY FOR THAT DAY. /3/ ON THE OTHER SIDE, LISTED
ON THE LEFT SIDE OF THE PAGE, WAS A LIST OF SOME 41 ACTIVITIES AND, TO
THE RIGHT, A BLANK FOR EACH DAY OF THE WEEK FOR INSERTION, OF THE NUMBER
OF TIMES THAT PARTICULAR ACTIVITY, IF APPLICABLE, HAD BEEN PERFORMED
EACH DAY (E.G. UNDER "ALERT RESPONSE" WERE: "AIRCRAFT", "VEHICLE", AND
"OTHER" AND IN EACH BLOCK-- SUNDAY THROUGH SATURDAY-- THE NUMBER OF EACH
TYPE OF RESPONSE, IF ANY, WOULD BE ENTERED FOR EACH DAY.) WHEREAS THE
NEW FORM LISTED 41 ACTIVITIES, CUSTOMS FORM 16 HAD LISTED 60; BUT,
ALTHOUGH THE NUMBER OF ACTIVITIES HAD BEEN REDUCED, ALL ACTIVITIES
LISTED ON THE NEW FORM ALSO APPEARED ON CUSTOMS FORM 16. ONE NEW
REQUIREMENT WAS ADDED, HOWEVER, NAMELY THE NUMBER OF EACH ACTIVITY WAS
TOTALLED FOR THE WEEK. THE NEW FORM, IN ADDITION, HAD AT THE TOP THE
FOLLOWING ADDITIONAL INFORMATION: "VEHICLE IN N.O.-- MI.", EACH DAY;
VEHICLE HIGHWAY-- NO.-- MI.", EACH DAY; "AIRCRAFT SURVEIL.-- NO.--
HR.", EACH DAY; "AIRCRAFT PATROL-- NO.-- HR.", EACH DAY; AND "CALL #
OF EX. OFFICER ON PATROL", EACH DAY. EACH DAILY CUSTOMS FORM 16 HAD
PROVIDED FOR ESSENTIALLY THE SAME INFORMATION ("REPORTING UNIT",
"OFFICER(S)", "HOURS", "VEHICLE", "LOCATION-- ACTIVITY-- FROM TO
DESTINATION" (COMP. EXH. 1) ALTHOUGH, AS REVISED, THE NEW FORM WAS
SPECIFICALLY TAILORED FOR THE NEW ORLEANS AIR SUPPORT BRANCH.
MR. VERA TESTIFIED THAT HE INFORMED MR. SCHOELERMAN ON JULY 6, 1978,
AFTER HE REVIEWED THE FINAL VERSION OF THE FORM, AS FOLLOWS:
"A. I TOLD MR. SCHOELERMAN SPECIFICALLY THAT I, AS A CUSTOMS
OFFICER, PERSONALLY DID NOT
HAVE ANY COMPLAINT ABOUT THE FORMAT OF THE FORM, AND I WAS SPEAKING
AS A-- I EMPHASIZED TO
HIM, PERSONALLY, I HAVE NO COMPLAINT WITH THE FORMAT; I FEEL THAT
THE FORMAT IS GOOD. BUT I
ADVISED HIM THAT I WOULD HAVE TO POLL THE REST OF THE BARGAINING UNIT
EMPLOYEES. AND
ADDITIONALLY THAT I WOULD HAVE TO DISCUSS THE OUTCOME IN MY NEXT STEP
WITH THE NTEU FIELD
OFFICE IN AUSTIN AND THE OTHER CHAPTER OFFICIALS IN CHAPTER 168."
(TR. 212).
ON CROSS-EXAMINATION, MR. VERA STATED,
"A. I DID, IN THE CONTEXT THAT I PERSONALLY APPROVED OF THE FORM,
NOT SPEAKING AS A UNION
REPRESENTATIVE, AND I MADE IT QUITE CLEAR THAT I WOULD HAVE TO POLL
THE REST OF THE EMPLOYEES
BEFORE I AS AN NTEU OFFICIAL COULD SAY, YOU KNOW, FINE, THE
NEGOTIATION PROCESS IS COMPLETE,
WE WILL SIGN OFF ON AGREEMENT HERE AS TO THE IMPLEMENTATION OF THIS
FORM." (TR. 240). MR. SCHOELERMAN TESTIFIED THAT MR. VERA WANTED THE
RIGHT TO BE ABLE TO NEGOTIATE OR BARGAIN FOR ANY CHANGES IN THE FORM,
WHICH I FIND WHOLLY CONSISTENT WITH MR. VERA'S DESIRE TO POLL THE
EMPLOYEES. THE CLEAR IMPORT OF MR. VERA'S STATEMENT TO MR. SCHOELERMAN
WAS THAT HE WAS SATISFIED WITH THE FORM BUT THAT HE WANTED TO "KEEP THE
DOOR OPEN" AS TO ANY CHANGES UNTIL HE POLLED THE OTHER EMPLOYEES. MR.
VERA, ON JULY 6, EMBARKED ON HIS POLL OF EMPLOYEES AND MR. SCHOELERMAN
OBSERVED HIM DOING SO. THUS, THE RECORD SHOWS THAT MR. VERA SHOWED THE
FORM TO MESSRS. JOACHIM, LUM AND KIKER AND IT WAS STIPULATED THAT HE " .
. . ALSO POLLED DANNY WADE . . . " (TR. 279).
MR. SCHOELERMAN TESTIFIED THAT HE THOUGHT THEY HAD FINALIZED THE
FORM, SUBJECT ONLY TO MR. VERA'S RESERVATION OF THE RIGHT TO NEGOTIATE
FOR ANY CHANGES, STATING,
"A. I THOUGHT WE DID. IN THE HANGER, MR. VERA STATED THAT HE LIKED
THE FORM, THOUGHT IT
WAS GOOD, AND THAT-- BUT THAT HE WANTED TO REQUIRE THE RIGHT FOR NTEU
TO BE ABLE TO NEGOTIATE
OR BARGAIN FOR ANY CHANGES IN THE FORM." (TR. 287). MR. VERA DID NOT
CONTACT MR. SCHOELERMAN FURTHER, AFTER THE CONVERSATION MR. SCHOELERMAN
REFERRED TO ABOVE, ON JULY 6, NOR DID HE MAKE ANY EFFORT TO CONTACT MR.
SCHOELERMAN ON JULY 7, /4/ AND MR. SCHOELERMAN MADE NO EFFORT TO CONTACT
MR. VERA, EITHER ON JULY 6, AFTER THE CONVERSATION REFERRED TO ABOVE, OR
ON JULY 7, 1978.
ON JULY 7, 1978, MR. SCHOELERMAN REPORTED TO MR. HALFACRE THAT, WITH
THE ACTIVE ASSISTANCE OF MR. VERA, A NEW, SIMPLIFIED FORM HAD BEEN
DEVISED, AND THAT MR. VERA WAS VERY SATISFIED WITH THE NEW FORM. AT
ABOUT 3:45 ON FRIDAY, JULY 7, MR. HALFACRE HAD WRITTEN WHICH STATED AS
FOLLOWS:
"ATTACHED IS A COPY OF THE NEW ACTIVITY REPORT FORM WHICH WILL
REPLACE THE DAILY FORM 16
REPORT AND THE WEEKLY NARRATIVE. THE NEW FORM WILL BE COMPLETED ON A
DAILY BASIS AND WILL
INCLUDE A CONCISE NARRATIVE OF THE DAYS ACTIVITIES. . . .
"THIS NEW FORM WILL BE USED ON A TRIAL BASIS EFFECTIVE JULY 9, 1978
UNTIL SEPTEMBER 2, 1978
. . . . " (JT. EXH. 10).
DID RESPONDENT, BY IMPLEMENTING USE OF THE FORM BY ITS MEMORANDUM OF
JULY 7, 1978, VIOLATE SECTION 19(A)(6) AND (1) OF THE ORDER? UNDER THE
PARTICULAR CIRCUMSTANCES OF THIS CASE, I CONCLUDE THAT RESPONDENT DID
NOT, THAT IS, THAT THE PARTIES HAD REACHED AGREEMENT ON THE NEW FORM
SUBJECT ONLY TO MR. VERA'S POLLING THE EMPLOYEES; THAT UNDER THE
CIRCUMSTANCES, NOT LESS THAN A FULL 24 HOURS WAS A REASONABLE PERIOD FOR
COMPLAINANT TO COMPLETE ITS POLL OF NINE EMPLOYEES; AND THAT, AS
COMPLAINANT HAD MADE NO REQUEST TO NEGOTIATE ANY CHANGE BY 3:45 P.M. ON
JULY 7, 1978, RESPONDENT REASONABLY, AND IN GOOD FAITH, BELIEVED THAT
NEGOTIATION OF THE FORM HAD BEEN COMPLETED AND THAT IT WAS IMPLEMENTING
AN AGREED UPON FORM.
COMPLAINANT'S ASSERTION THAT NEGOTIATIONS HAD NOT BEEN COMPLETED
BECAUSE NOT ALL MATTERS HAD BEEN DISCUSSED IS WHOLLY UNCONVINCING.
FIRST, WHILE THE RECORD DOES NOT SHOW THAT THE PARTIES DISCUSSED THE
SIDE OF THE FORM FOR THE NARRATIVE STATEMENT, THIS HAD BEEN THE
ESTABLISHED PROCEDURE SINCE 1975 AND NEITHER THE PROVISIONS FOR THE
NARRATIVE STATEMENT ON A REPORT FORM NOR THE PLACEMENT THEREON OF THE
DAYS OF THE WEEK EVIDENCED ANY CHANGE IN SUBSTANCE, BUT, MORE IMPORTANT,
WHETHER DISCUSSED OR NOT, COMPLAINANT WAS FULLY ADVISED THAT THE
NARRATIVE STATEMENT WOULD BE SO TREATED; HAD FULL OPPORTUNITY TO
DISCUSS THIS PART OF THE FORM; AND MR. VERA STATED THAT HE, PERSONALLY,
FOUND THE FINAL VERSION OF THE FORM, IN ITS ENTIRETY, GOOD. SECOND, AS
TO THE TRIAL PERIOD, RESPONDENT FROM THE OUTSET HAD PROPOSED A TRIAL
PERIOD. COMPLAINANT, ALSO, WANTED A TRIAL PERIOD, AND MAY HAVE
SUGGESTED 90 TO 180 DAYS; BUT, AS BOTH PARTIES AGREED THAT THERE SHOULD
BE A TRIAL PERIOD, THE RECORD SHOWS NO DISCUSSION OF ITS LENGTH AND
RESPONDENT, WHEN IT IMPLEMENTED USE OF THE FORM, FIXED THE TRIAL PERIOD
AS EIGHT WEEKS. THIRD, IMPLEMENTATION WAS NOT DISCUSSED. WHILE THIS IS
CORRECT, THE RECORD REFLECTED GENERAL DISSATISFACTION WITH THE
MULTIPLICITY OF FORMS THEN REQUIRED AND A MUTUAL DESIRE BY RESPONDENT
AND COMPLAINANT TO SIMPLIFY REPORTING. HAVING AGREED UPON A NEW FORM
WHICH DID, INDEED, CONSOLIDATE THE EXISTING REPORTS INTO A SINGLE ONE
PAGE FORM, THE RECORD IMPLIES THAT BOTH PARTIES CONTEMPLATED, AND
DESIRED, THAT THE COMPLETED FORM, BE PLACED INTO EFFECT IMMEDIATELY,
SUBJECT ONLY TO MR. VERA'S RESERVATION THAT HE HAVE THE RIGHT TO
NEGOTIATE CHANGES UNTIL HE POLLED THE EMPLOYEES. ALL THAT WAS REQUIRED
TO IMPLEMENT THE NEW FORM, WAS TO SAY, AS MR. HALFACRE'S MEMORANDUM DID,
THAT, IN EFFECT, HERE IS A NEW ACTIVITY REPORT FORM WHICH WILL BE USED
FROM THE DATE DESIGNATED. I FIND NEITHER CONVINCING NOR CREDIBLE MR.
VERA'S TESTIMONY ABOUT IMPLEMENTATION; BUT EVEN ACCEPTING HIS TESTIMONY
IN THIS REGARD, HIS CONCERN ON JULY 6, 1978, WAS THAT,
". . . WHEN THE THING WAS IMPLEMENTED IT WOULD BE VERY CLEAR--
INSTRUCTIONS WOULD BE VERY
CLEAR TO THE EMPLOYEE, THAT THIS WOULD BE THE WAY IT WOULD BE DONE
FROM NOW ON RATHER THAN
THERE WOULD BE ANY CONFUSED STATE AS TO, WELL, ARE WE STILL DOING
THIS CF-16, OR ARE WE GOING
TO DO THIS, OR WHAT EXACTLY WOULD TAKE PLACE." (TR. 210-211). NO
MORE WAS REQUIRED TO ACCOMPLISH THIS THAN, AS MR. HALFACRE'S MEMORANDUM
STATED,
"ATTACHED IS A COPY OF THE NEW ACTIVITY REPORT FORM WHICH WILL
REPLACE THE DAILY FORM 16
REPORT AND THE WEEKLY NARRATIVE. . . .
"THIS NEW FORM WILL BE USED ON A TRIAL BASIS EFFECTIVE JULY 9,
1978. . . . " (JT. EXH. 10). NO NEW REPORTING REQUIREMENT WAS
INVOLVED. TO THE CONTRARY, THE NEGOTIATED FORM REFLECTED A
SIMPLIFICATION AND CONSOLIDATION OF EXISTING REPORTING REQUIREMENTS.
IT MAY WELL BE TRUE THAT COMPLAINANT WAS CONCERNED ABOUT USE OF
STATISTICS REPORTED, BUT THE REPORTING OF SUCH STATISTICS HAD 0EEN
INTRODUCED BY CUSTOMS FORM 16 AND THERE IS NOTHING IN THE RECORD WHICH
INDICATES THAT ANYONE VIEWED THE MATTER AS MORE THAN SIMPLIFICATION OF
THE EXISTING ACTIVITIES REPORT FORMS. THIS WAS THE TASK ASSIGNED BY MR.
HALFACRE, WAS THE ASSIGNMENT UNDERTAKEN BY MR. SCHOELERMAN, AND WAS THE
OBJECT OF MR. VERA'S ACTIVE PARTICIPATION. NOR DO I FIND ANY CREDIBLE
EVIDENCE THAT COMPLAINANT MADE ANY REQUEST TO BARGAIN ABOUT THE USE OF
THE STATISTICS REPORTED. TO THE CONTRARY, THE RECORD REFLECTS THAT
RESPONDENT INVITED COMPLAINANT'S ASSISTANCE IN SIMPLIFYING THE REPORTING
FORMS, COMPLAINANT PARTICIPATED IN DOING SO AND AGREED UPON A FORM,
SUBJECT TO THE POLL OF UNIT EMPLOYEES.
UNDER OTHER CIRCUMSTANCES I MIGHT WELL AGREE WITH COMPLAINANT'S
CONTENTION THAT RESPONDENT UNILATERALLY IMPLEMENTED THE NEW FORM 0EFORE
COMPLETING NEGOTIATIONS; BUT UNDER THE PARTICULAR FACTS OF THIS CASE I
DO NOT FIND THAT RESPONDENT VIOLATED ANY OBLIGATION UNDER THE ORDER. IN
SHORT, MR. SCHOELERMAN FIRST CONTACTED MR. VERA ON JULY 5 WITH REGARD TO
REVISION OF THE FORM AND THE FINAL VERSION HAD BEEN COMPLETED ON JULY 6;
DISCUSSION HAD BEEN MOST INFORMAL; MR. VERA STATED ON JULY 6 THAT HE
WAS, PERSONALLY, SATISFIED WITH THE NEGOTIATED FORM AND THOUGHT IT WAS
GOOD, BUT WANTED TO RESERVE THE RIGHT TO NEGOTIATE FURTHER UNTIL HE
POLLED THE EMPLOYEES; MR. VERA PROCEEDED TO POLL EMPLOYEES ON JULY 6
AND MR. SCHOELERMAN WAS AWARE THAT HE WAS DOING SO; THERE WERE ONLY TEN
EMPLOYEES INVOLVED, INCLUDING MR. VERA, AND MR. VERA DID NOT COMMUNICATE
FURTHER WITH MR. SCHOELERMAN ON EITHER JULY 6 OR 7; WHEN COMPLAINANT
HAD MADE NO REQUEST TO NEGOTIATE ANY CHANGE BY 3:45 P.M. ON FRIDAY, JULY
7, 1978, RESPONDENT POSTED THE MEMORANDUM IMPLEMENTING USE OF THE NEW
FORM FOR THE FOLLOWING WORK WEEK WHICH BEGAN SUNDAY, JULY 9, 1978.
UNDER THE CIRCUMSTANCES OF THIS CASE, INCLUDING THE FACT THAT THERE WERE
ONLY NINE EMPLOYEES, EXCLUSIVE OF MR. VERA, INVOLVED, AND THE FURTHER
FACT, KNOWN TO RESPONDENT, THAT MR. VERA HAD UNDERTAKEN HIS POLL OF
EMPLOYEES ON JULY 6, I CONCLUDE THAT NOT LESS THAN 24 HOURS WAS A
REASONABLE PERIOD FOR COMPLETION OF THE POLL AND THAT COMPLAINANT, BY
MR. VERA'S STATEMENT OF APPROVAL OF THE NEGOTIATED FORM, SUBJECT ONLY TO
HIS POLLING THE EMPLOYEES, AND BY THE FAILURE ON, OR BEFORE, 3:45 P.M.
ON JULY 7, 1978, TO EXERCISE ITS RESERVED RIGHT TO NEGOTIATE CHANGES,
CREATED THE CIRCUMSTANCES WHICH REASONABLY IMPLIED ITS FINAL APPROVAL OF
THE NEGOTIATED FORM. CONSEQUENTLY, RESPONDENT'S IMPLEMENTATION OF THE
NEGOTIATED FORM ON JULY 7, EFFECTIVE JULY 9, 1978, WAS IN GOOD FAITH, IN
THE REASONABLE BELIEF THAT NEGOTIATIONS HAD BEEN COMPLETED, AND THAT IT
WAS IMPLEMENTING AN AGREED FORM.
WHILE I AM AWARE THAT CHANGE OF A FORM MAY HAVE A SUBSTANTIAL IMPACT
ON WORKING CONDITIONS AND UNILATERAL IMPLEMENTATION WOULD VIOLATE
SECTION 19(A)(1) AND (6) OF THE ORDER, DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, MANHATTAN DISTRICT, A/SLMR NO. 841, 7 A/SLMR
418(1977), OR MAY HAVE NO EFFECT WHATEVER ON PERSONNEL POLICIES,
PRACTICES OR WORKING CONDITIONS AND UNILATERAL IMPLEMENTATION WOULD NOT
CONSTITUTE A VIOLATION OF SECTION 19(A)(1) AND (6), SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, A/SLMR NO. 979(1978);
DEPARTMENT OF DEFENSE, UNITED STATES ARMY, FORT SAM, HOUSTON, TEXAS, 1
FLRA NO. 68(1979), FEDERAL LABOR RELATIONS AUTHORITY, REPORT NO. 10,
JULY 11, 1979. SEE, ALSO, DEPARTMENT OF DEFENSE, AIR NATIONAL GUARD,
TEXAS AIR NATIONAL GUARD, CAMP MABRY, AUSTIN, TEXAS, A/SLMR NO. 738, 6
A/SLMR 591(1976), AND THAT RESPONDENT, ALSO, ASSERTS THAT, AS
SIMPLIFICATION OF THE REPORTING FORMS IN THIS CASE HAD NO IMPACT
WHATEVER ON PERSONNEL POLICIES, PRACTICES OR WORKING CONDITIONS SINCE IT
MADE NO CHANGE IN EXISTING REPORTING REQUIREMENTS. I DO NOT DEEM THE
AUTHORITIES CITED ABOVE APPLICABLE INASMUCH AS THE PARTIES VOLUNTARILY
ENGAGED IN BARGAINING ON THE REVISION OF THE REPORTING FORMS AND
RESPONDENT, HAVING EMBARKED UPON NEGOTIATIONS MAY NOT UNILATERALLY
IMPLEMENT A MATTER UNDER NEGOTIATION UNTIL NEGOTIATIONS HAVE BEEN
COMPLETED. NEVERTHELESS, FOR REASONS SET FORTH ABOVE, I HAVE FOUND
THAT, IN THIS CASE, NEGOTIATIONS WERE COMPLETED AND THAT RESPONDENT
IMPLEMENTED THE FORM IN GOOD FAITH IN THE REASONABLE BELIEF THAT
COMPLAINANT APPROVED THE NEGOTIATED FORM.
B) RESPONDENT'S DIRECT SOLICITATION OF UNIT EMPLOYEES
IN HIS MEMORANDUM OF JULY 7, 1978, BY WHICH THE NEW FORM WAS
IMPLEMENTED, MR. HALFACRE STATED, IN PART, AS FOLLOWS:
"THIS NEW FORM WILL BE USED ON A TRIAL BASIS EFFECTIVE JULY 9, 1978
UNTIL SEPTEMBER 2,
1978, A PERIOD OF EIGHT (8) WEEKS. DURING THIS TRIAL PERIOD ALL
EMPLOYEES ARE REQUESTED TO
SUBMIT ANY IMPROVEMENTS TO THE FORM, EITHER ORALLY, IN WRITING OR
THROUGH THEIR
N.T.E.U. REPRESENTATIVE, TO THEIR SUPERVISOR." (JT. EXH. 10). WERE
THIS A MATTER OF FIRST IMPRESSION, I WOULD BE STRONGLY INCLINED TO FIND
THAT RESPONDENT HAD NOT BYPASSED COMPLAINANT IN VIOLATION OF SECTION
19(A)(6) AND (1); BUT IN LIGHT OF THE ASSISTANT SECRETARY'S DECISION IN
INTERNAL REVENUE SERVICE, OGDEN SERVICE CENTER, A/SLMR NO. 944, 7 A/SLMR
1032(1977), I CONCLUDE THAT RESPONDENT'S CONDUCT IN THIS REGARD WAS IN
VIOLATION OF SECTIONS 19(A)(6) AND (1) OF THE ORDER. THE INTERNAL
REVENUE CASE INVOLVED RESPONDENT'S (IRS'S) CRITIQUE BY UNIT EMPLOYEES OF
ITS 1975 TAX FILING SEASON TO IMPROVE OPERATIONS FOR THE 1976 TAX
SEASON. IRS UNILATERALLY SELECTED A CROSS-SECTION OF EMPLOYEES FOR A
CRITIQUE COMMITTEE. IRS INFORMED THE UNION OF ITS PLANS, INVITED THE
UNION TO BE PRESENT WHEN THE COMMITTEE PRESENTED ITS RECOMMENDATION, BUT
DID NOT ALLOW THE UNION TO PARTICIPATE IN SELECTING MEMBERS OF THE
CRITIQUE COMMITTEE OR TO PARTICIPATE IN ITS DELIBERATIONS. IRS INFORMED
THE UNION THAT THERE WOULD BE NO IMPLEMENTATION OF ANY RECOMMENDATION
AFFECTING GENERAL WORKING CONDITIONS WITHOUT DISCUSSION WITH THE UNION.
A COPY OF THE CRITIQUE COMMITTEE'S RECOMMENDATIONS WAS FURNISHED TO THE
UNION. THE ASSISTANT SECRETARY, IN FINDING THAT IRS THEREBY VIOLATED
SECTION 19(A)(6) AND (1) OF THE ORDER, STATED, IN PART, AS FOLLOWS:
"UNDER SECTION 10(E) OF THE EXECUTIVE ORDER, AGENCY MANAGEMENT IS
OBLIGATED TO DEAL SOLELY
WITH ITS EMPLOYEES' EXCLUSIVE REPRESENTATIVE IN MATTERS CONCERNING
THE TERMS AND CONDITIONS OF
THEIR EMPLOYMENT. . . . IN EFFECT, AND CONTRARY TO THE REQUIREMENTS
OF THE ORDER, THE
RESPONDENT BYPASSED THE COMPLAINANT AND DEALT DIRECTLY WITH UNIT
EMPLOYEES, SOLICITING THEIR
RECOMMENDATIONS ON MATTERS RELATING TO PERSONNEL POLICIES AND
PRACTICES AND GENERAL WORKING
CONDITIONS, FOR WHICH THE COMPLAINANT WAS THE EXCLUSIVE BARGAINING
REPRESENTATIVE. IN MY
VIEW, THIS BYPASSING OF THE COMPLAINANT CHAPTER 67 WAS IN DEROGATION
OF ITS RIGHTS AS THE
EXCLUSIVE REPRESENTATIVE OF THE UNIT EMPLOYEES, AND TENDED TO
UNDERMINE ITS STATUS AS THEIR
EXCLUSIVE REPRESENTATIVE. ACCORDINGLY, I FIND THAT THE RESPONDENT'S
CONDUCT WAS VIOLATIVE OF
SECTION 19(A)(6) AND (1) OF THE ORDER." (7 A/SLMR AT 1034).
IN MANY RESPECTS THE INTERNAL REVENUE CASE IS, OBVIOUSLY,
DISTINGUISHABLE; BUT, IN ITS ESSENTIAL ASPECT, IN DEALING WITH UNIT
EMPLOYEES BY SOLICITING THEIR RECOMMENDATIONS FOR IMPROVEMENT OF THE
FORM, A MATTER RELATING TO PERSONNEL POLICIES AND PRACTICES AND GENERAL
WORKING CONDITIONS ON WHICH THE PARTIES HAD NEGOTIATED, INTERNAL
REVENUE, SUPRA, IS INDISTINGUISHABLE IN PRINCIPLE. RESPONDENT
UNILATERALLY REQUESTED UNIT EMPLOYEES TO SUBMIT RECOMMENDATIONS
(IMPROVEMENTS) TO THEIR SUPERVISOR, AND THE REFERENCE TO COMPLAINANT WAS
WHOLLY AN ALTERNATE CONDUIT OF SUCH RECOMMENDATIONS TO THE SUPERVISOR.
INDEED, UNLIKE THE ASSURANCE GIVEN BY INTERNAL REVENUE, THERE WAS NO
ASSURANCE GIVEN TO COMPLAINANT THAT RESPONDENT WOULD DISCUSS ANY
RECOMMENDATION PRIOR TO IMPLEMENTATION. ACCORDINGLY, FOR THE REASONS
STATED BY THE ASSISTANT SECRETARY IN THE INTERNAL REVENUE CASE, SUPRA, I
CONCLUDE THAT RESPONDENT'S BYPASSING OF THE COMPLAINANT WAS IN
DEROGATION OF COMPLAINANT'S RIGHTS AS THE EXCLUSIVE REPRESENTATIVE OF
THE UNIT EMPLOYEES AND TENDED TO UNDERMINE COMPLAINANT'S STATUS AS THEIR
EXCLUSIVE REPRESENTATIVE AND THAT SUCH CONDUCT WAS VIOLATIVE OF SECTION
19(A)(6) AND (1) OF THE ORDER.
III. CASE NO. 64-4250 (CA)
THIS CASE INVOLVES UNIFORMS. THE COMPLAINANT ALLEGES THAT,
"SPECIFICALLY, ON OR ABOUT MAY 16, 1978 UNIT EMPLOYEES AT THE AIR
SUPPORT BRANCH IN NEW
ORLEANS, LOUISIANA LEARNED THAT A MEMBER OF MANAGEMENT, MR. RAYMOND
HALFACRE, HAD MADE A
CHANGE IN POLICY REQUIRING EMPLOYEES WHO WERE WEARING CIVILIAN
CLOTHES FOR DUTY TO OBTAIN
PRIOR APPROVAL. THIS CHANGE IN POLICY WAS IMPLEMENTED UNILATERALLY
BY MANAGEMENT AND AT NO
TIME WAS THE EXCLUSIVE REPRESENTATIVE AFFORDED ANY PRIOR
NOTIFICATION, HENCE NTEU WAS NOT
GIVEN THE OPPORTUNITY TO MEET AND CONFER/NEGOTIATE CONCERNING THE
SUBSTANCE AND/OR IMPACT AND
IMPLEMENTATION OF A CHANGE IN WORKING CONDITIONS." (ALJ EXH. 2).
A) IMPLEMENTATION OF POLICY STATEMENT 3400-02 AND REGIONAL
CIRCULAR FAC-10-V:O:P.
THE RECORD SHOWS THAT THERE ARE VARIOUS ACTIVITIES OF THE CUSTOMS
SERVICE, AND IN PARTICULAR OF THE AIR SUPPORT BRANCH, WHICH REQUIRE THAT
OFFICERS WORK IN PLAIN CLOTHES. IT IS ALSO APPARENT THAT THERE WAS AN
INCREASING TENDENCY IN THE SERVICE FOR OFFICERS TO WORK IN PLAIN CLOTHES
AND THAT THIS TENDENCY WAS ESPECIALLY STRONG IN THE AIR BRANCH SERVICE.
BY LETTER DATED SEPTEMBER 20, 1977, MS. DELYNNE WHITE, CHIEF, LABOR
RELATIONS, EMPLOYEE RELATIONS AND EMPLOYMENT DEVELOPMENT BRANCH, NEW
ORLEANS, LOUISIANA, TRANSMITTED TO MR. JAMES W. THORNTON, NATIONAL FIELD
REPRESENTATIVE, NTEU, AUSTIN, TEXAS, AN ADVANCE COPY OF HEADQUARTERS
MANUAL TRANSMITTAL #3400 ENTITLED "WEARING OF PATROL UNIFORM DURING
TOURS OF DUTY" (JT. EXH. 13, ATTACHMENT 2). BY MEMORANDUM DATED
SEPTEMBER 30, 1977 (JT. EXH. 14) COMMISSIONER OF CUSTOMS ISSUED POLICY
STATEMENT 3400-02 (JT. EXH.15 /5/ ) WHICH, EXCEPT FOR ADDITION OF THE
NUMBER, 3400-02, AND DATE, SEPTEMBER 30, 1977, WAS IDENTICAL TO THE
ADVANCE COPY TRANSMITTED TO MR. THORNTON ON SEPTEMBER 20, 1977. AS THE
COMMISSIONER'S TRANSMITTAL (JT. EXH. 14) STATED UNDER, "EFFECTIVE DATE".
"UPON RECEIPT", WHEN THE COMMISSIONER'S TRANSMITTAL WAS RECEIVED BY THE
AIR BRANCH SERVICE, MR. HALFACRE POSTED POLICY STATEMENT 3400-02 AND IN
OCTOBER, 1977, IMPLEMENTED ITS PROVISION BY REQUIRING WRITTEN REQUESTS
FOR AUTHORIZATION TO WEAR CIVILIAN CLOTHES (SEE JT. EXH. 16-A, OCTOBER
26, 1977, THROUGH 16-S, FEBRUARY 22, 1978). HOWEVER, BY LETTER DATED
NOVEMBER 9, 1977, MS. WHITE ADVISED MR. THORNTON THAT RESPONDENT
INTENDED TO IMPLEMENT THE REGIONAL CIRCULAR FAC-10-V:O:P ON, OR ABOUT,
NOVEMBER 25, 1977 (JT. EXH. 17). BY LETTER DATED NOVEMBER 17, 1977,
MR. THORNTON ADVISED MS. WHITE THAT NTEU "DOES WISH TO MEET AND CONFER
CONCERNING THE CONTENTS OF THE PROPOSED CIRCULAR." (JT. EXH. 18). ON,
OR ABOUT, NOVEMBER 30, 1977, MR. THORNTON MET INFORMALLY WITH MR. DOUG
ANGLE, THEN DISTRICT DIRECTOR OF THE NEW ORLEANS DISTRICT, AND CHIEF
SPOKESMAN FOR RESPONDENT IN REGIONAL NEGOTIATIONS, IN AUSTIN, TEXAS, AT
WHICH TIME THE UNILATERAL IMPLEMENTATION OF CIRCULAR 3400-02 BY THE AIR
SUPPORT BRANCH WAS DISCUSSED; AND ON DECEMBER 13, 1977, COMPLAINANT AND
RESPONDENT HAD FORMAL NEGOTIATIONS ON THE IMPACT AND IMPLEMENTATION OF
CIRCULAR FAC-10-V:O:P. PRESENT AT THE DECEMBER 13, 1977, NEGOTIATIONS
FOR COMPLAINANT WERE, AMONG OTHERS, MR. THORNTON, MR. ACOSTA, PRESIDENT
OF CHAPTER 168, AND MR. VERA, ASSOCIATE CHIEF STEWARD. MR. THORNTON
TESTIFIED THAT ON NOVEMBER 30 HE HAD TOLD MR. ANGLE THAT HE WOULD LIKE
TO MEET AND NEGOTIATE IMPACT AND IMPLEMENTATION IN THE CUSTOMS PATROL
BUT NOT IN THE AIR BRANCH BECAUSE IT HAD ALREADY BEEN IMPLEMENTED IN THE
AIR BRANCH. MR. ANGLE WAS RESPONDENT'S CHIEF NEGOTIATOR ON DECEMBER
13. MR. THORNTON TESTIFIED THAT ON DECEMBER 13 HIS CONCERN, WAS THAT
"MANY EMPLOYEES HADN'T WORN UNIFORMS IN AGES" AND HE WANTED A DELAY
UNTIL THE ANNUAL CLOTHING ALLOWANCE FOR UNIFORMS HAD BEEN PAID.
RESPONDENT AND COMPLAINANT REACHED AN ORAL AGREEMENT ON COMPLAINANT'S
REQUEST. BY MEMORANDUM DATED FEBRUARY 8, 1978, THE REGIONAL
COMMISSIONER IMPLEMENTED CIRCULAR FAC-10-V:O:P (JT. EXH. 19) WHICH, IN
TURN, IMPLEMENTED HEADQUARTERS POLICY STATEMENT 3400-02, DATED SEPTEMBER
30, 1977.
THE MEMORANDUM TRANSMITTING POLICY STATEMENT 3400 HAD RECEITED, IN
PART, THAT
"THAT CUSTOMS PATROL WAS ESTABLISHED AS A UNIFORMED FORCE. . . .
HOWEVER, ITS
EFFECTIVENESS HAS BEEN SERIOUSLY IMPACTED RECENTLY BECAUSE OF A
GROWING TREND TO OPERATE IN
CIVILIAN CLOTHES." (JT. EXH. 13, ATTACHMENT 1). THE MEMORANDUM
FURTHER STATED IN PART, THAT,
"POLICY STATEMENT 3400 ESTABLISHES POLICY WITH RESPECT TO THE WEARING
OF THE UNIFORM BY
CPO'S, AIR OFFICERS, BOAT HANDLERS, SUPERVISORY PATROL OFFICERS AND
PILOTS DURING SCHEDULED
TOURS OF DUTY." (JT. EXH. 13, ATTACHMENT 1).
THE POLICY STATEMENT (NOT NUM0ERED ON THE ADVANCE COPY FURNISHED MR.
THORNTON, BUT REFERRED TO IN THE TRANSMITTAL MEMORANDUM AS "3400-" AND,
AS ISSUED ON SEPTEMBER 30, 1977, WAS THEN, AND THEREAFTER, NUMBERED
"3400-02") WAS A GENERAL STATEMENT OF POLICY CONCERNING THE WEARING OF
UNIFORMS AND PROVIDED, IN PART, AS FOLLOWS:
"1. ALL CUSTOMS PATROL OFFICERS, AIR OFFICERS, PILOTS, BOAT
HANDLERS, AND SUPERVISORY
PATROL OFFICERS WILL WEAR THE APPROVED PATROL UNIFORM . . . WHILE ON
DUTY; EXCEPT (EMPHASIS I,
ORIGINAL) WHEN SPECIFICALLY AUTHORIZED TO WEAR CIVILIAN CLOTHES BY AN
APPROPRIATELY DESIGNATED
SUPERVISOR. REGIONAL COMMISSIONERS WILL DESIGNATE, IN WRITING, THOSE
TYPES OF ASSIGNMENTS
WHERE THE WEARING OF THE UNIFORM WOULD BE INAPPROPRIATE WITH THE
NATURE OF THE ASSIGNMENT.
"2. REGIONAL PATROL DIRECTORS MUST APPROVE THE WEARING OF CIVILIAN
CLOTHES BY ALL PATROL
OFFICERS, PILOTS AND AIR OFFICERS ASSIGNED TO REGIONAL HEADQUARTERS.
DISTRICT PATROL
DIRECTORS MUST APPROVE THE WEARING OF CIVILIAN CLOTHES BY ALL PATROL
OFFICERS, PILOTS AND AIR
OFFICERS ASSIGNED TO CUSTOMS DISTRICTS.
"3. APPROVALS (UNDER 2, ABOVE) TO WEAR CIVILIAN, CLOTHES WILL BE
GIVEN ON A CASE BY CASE
BASIS, AND ONLY WHEN THERE IS A DEMONSTRABLE NEED, SUCH AS WHERE THE
WEARING OF THE UNIFORM
WOULD INTERFERE WITH THE SUCCESSFUL OUTCOME OF A SPECIFIC CASE. ALL
APPROVALS WILL BE IN
WRITING.
. . . (JT. EXH. 13, ATTACHMENT 2)
RESPONDENT'S LETTER OF SEPTEMBER 20, 1977 (JT. EXH. 13) TO MR.
THORNTON HAD STATED,
"PRIOR TO IMPLEMENTATION, WE WILL PROVIDE YOU WITH A COPY OF A
REGIONAL CIRCULAR
SUPPLEMENTING THE ABOVE REFERENCED TRANSMITTAL." (POLICY STATEMENT
#3400) (JT. EXH. 13). HOWEVER, THE TRANSMITTAL OF SEPTEMBER 30, 1977,
TO, INTER ALIA, THE AIR SUPPORT BRANCH, CONTAINED NO SIMILAR STATEMENT,
INSOFAR AS THE RECORD SHOWS, BUT TO THE CONTRARY, STATED THAT IT WAS
EFFECTIVE UPON RECEIPT (JT. EXH. 14). IT IS QUITE TRUE, OF COURSE, THAT
THE POLICY STATEMENT, AS SET FORTH A0OVE, WITH EMPHASIS, STATED THAT,
"REGIONAL COMMISSIONERS WILL DESIGNATE, IN WRITING, THOSE TYPES OF
ASSIGNMENTS WHERE THE WEARING OF THE UNIFORM WOULD BE INAPPROPRIATE WITH
THE NATURE OF THE ASSIGNMENT". RESPONDENT'S LETTER OF NOVEMBER 9, 1977,
TO MR. THORNTON STATED,
"AS STATED IN THE ABOVE REFERENCED LETTER, (SEPTEMBER 20, 1977) WE
ARE HEREBY ENCLOSING AN
ADVANCE COPY OF REGIONAL CIRCULAR, SUBJECT: WEARING OF PATROL
UNIFORM DURING TOURS OF
DUTY. WE PLAN TO IMPLEMENT SAME ON OR ABOUT NOVEMBER 25,1977." (JT.
EXH. 17).
THE REGIONAL CIRCULAR, AS TRANSMITTED TO MR. THORNTON ON NOVEMBER 9,
1977, ATTACHMENT TO JOINT EXHIBIT 17, AND AS IMPLEMENTED ON FEBRUARY 8,
1978, JOINT EXHIBIT 19, PROVIDED AS FOLLOWS:
"1. PURPOSE
"TO IMPLEMENT HEADQUARTERS' POLICY ON THE WEARING OF UNIFORMS BY ALL
CPO'S AND SCPO'S
DURING SCHEDULED TOURS OF DUTY.
"2. BACKGROUND
"HEADQUARTERS CIRCULAR FAC-10-A:L:P, DATED AUGUST 20, 1974,
ESTABLISHED THE OFFICIAL PATROL
OFFICER'S UNIFORM AND OPTIONAL EQUIPMENT. HEADQUARTERS POLICY
STATEMENT MT #3400-02, DATED
SEPTEMBER 30, 1977, OUTLINED THE REQUIREMENTS FOR ALL CPO'S, AIR
OFFICERS, PILOTS, BOAT
HANDLERS, AND SUPERVISORY CPO'S TO WEAR THE PATROL UNIFORM DURING THE
REGULARLY SCHEDULED DUTY
ASSIGNMENT UNLESS SPECIFICALLY AUTHORIZED OTHERWISE.
"3. ACTION
"A. CPO'S, AIR OFFICERS, PILOTS, BOAT HANDLERS, AND SUPERVISOR CPO'S
ARE REQUIRED TO WEAR
THE OFFICIAL PATROL UNIFORM DURING REGULARLY SCHEDULED DUTY
ASSIGNMENTS, UNLESS SPECIFICALLY
AUTHORIZED OTHERWISE AS OUTLINED HEREIN.
"B. THE AUTHORITY TO PERFORM IN PLAIN CLOTHES DURING A NORMALLY
SCHEDULED DUTY ASSIGNMENT
WILL BE LIMITED TO THOSE CIRCUMSTANCES WHERE THE WEARING OF A UNIFORM
WILL COMPROMISE THE
SUCCESSFUL CONCLUSION OF A CASE. A DEMONSTRABLE NEED TO PERFORM IN
PLAIN CLOTHES MUST BE
CLEARLY PRESENT. EACH REQUEST WILL BE EVALUATED ON A CASE-BY-CASE
BASIS. THOSE CIRCUMSTANCES
WHICH MAY WARRANT A PLAIN CLOTHES ASSIGNMENT ARE AS FOLLOWS:
"1. CONTACTING A SOURCE OF INFORMATION WHERE THE VISIBLE PRESENCE OF
UNIFORMED OFFICER
MIGHT COMPROMISE THAT SOURCE.
"2. SURVEILLANCE ACTIVITY THAT IS A, APPROVED PATROL FUNCTION AND
DUE TO SPECIAL
CIRCUMSTANCES CANNOT BE ACCOMPLISHED IN UNIFORM, SUCH AS SURVEILLANCE
OF A SUSPECT IN A HIGH
RISK AREA, PASSENGER ARRIVALS AREA, PRIVATE AIR FIELD, OR MARINA.
"3. SPECIAL OPERATION OR ASSIGNMENT WHERE IN THE JUDGMENT OF THE
DISTRICT OR REGIONAL
DIRECTOR OF PATROL, IT IS IMPERATIVE THAT THE IDENTITY OF THE
PARTICIPATING OFFICERS BE
CONCEALED FROM THE SUSPECT OR GENERAL PUBLIC.
"C. EACH SET OF CIRCUMSTANCES THAT REQUIRES NON-UNIFORM ACTIVITY
WILL BE APPROVED IN
WRITING BY THE DISTRICT OR REGIONAL DIRECTOR OR PATROL AS
APPROPRIATE. THIS AUTHORITY MAY BE
REDELEGATED TO A SENIOR SCPO.
"1. A REGIONAL FORM HAS BEEN DESIGNED TO FACILITATE COMPLIANCE WITH
THIS REQUIREMENT AND
SHALL BE PREPARED IN DUPLICATE TO DIRECTOR OF PATROL AT THE REGIONAL
LEVEL. AN INITIAL SUPPLY
OF THESE FORMS WILL BE PROVIDED TO EACH DIRECTOR OF PATROL.
ADDITIONAL FORMS SHOULD BE
REQUESTED THROUGH THE LOCAL FORMS CONTROL OFFICER.
"D. ANY REQUESTS FOR EXEMPTION TO THE POLICY STATED HEREIN MUST BE
WELL DOCUMENTED IN
WRITING AND FORWARDED TO REGIONAL HEADQUARTERS FOR CONSIDERATION."
(JT. EXH. 19).
MR. THORNTON TESTIFIED THAT JOINT EXHIBIT 19 WAS THE RESULT OF THE
DECEMBER 13, 1977, BARGAINING SESSION. WHEN MR. HALFACRE RECEIVED A
COPY OF THE FEBRUARY 8, 1978, REGIONAL CIRCULAR, ON OR ABOUT FEBRUARY
20, 1978, THE REGIONAL CIRCULAR WAS POSTED IN THE AIR SUPPORT BRANCH AND
HE REQUESTED COPIES OF THE REGIONAL FORM REFERRED TO THEREIN AND WAS
INFORMED BY THE REGIONAL PATROL DIRECTOR THAT THE FORMS WERE BEING
PRINTED AND WOULD BE ISSUED AT A LATER DATE; THAT, IN THE MEANTIME, IT
WOULD BE SUFFICIENT TO DOCUMENT THE WEARING OF CIVILIAN CLOTHES IN A
GREEN-BACKED LOG BOOK WHICH IS USED FOR VARIOUS PURPOSES, INCLUDING
VEHICLE AUTHORIZATIONS, ETC., AND THAT SUCH LOG BOOK WAS USED FOR THE
PURPOSE OF DOCUMENTING THE WEARING OF CIVILIAN CLOTHES BEGINNING
FEBRUARY 21, 1978 (JT. EXH. 20). THE REGIONAL FORM (COMP. EXH. 7) BEARS
A NOTATION AT THE TOP OF "V-RC-425 (OCT. 1978)" AND MR. HALFACRE
TESTIFIED THAT THE REGIONAL FORMS WERE USED FROM THE DATE THEY WERE
RECEIVED IN THE AIR SUPPORT BRANCH.
B) AUTHORIZATIONS FOR CIVILIAN CLOTHING IN THE AIR SUPPORT
BRANCH
THE RECORD SHOWS THAT FROM OCTOBER 26, 1977, REQUESTS FOR
AUTHORIZATION TO WEAR CIVILIAN CLOTHES WERE MADE BY WRITTEN MEMORANDUM
ADDRESSED TO THE SUPERVISORY CUSTOMS AIR OFFICER, AND OF THE EXAMPLES
SUBMITTED AS EXHIBITS (JT. EXH. 16-A-16-S) ALL 0UT FIVE (JT. EXH.
16-A,16-D, 16-E, 16-F, AND 16-S) WERE SIGNED, OR INITIALED, BY ONE OR
MORE OF THE EMPLOYEES COVERED BY THE REQUEST AND ALL BUT ONE (JT. EXH.
16-R) BEAR A NOTATION OF APPROVAL (JT. EXH. 16-A IS DATED OCTOBER 26,
1977, AND THE DATE OF APPROVAL IS 11/26/77 WHICH, IN ALL PROBABILITY,
REFLECTS AN ERROR IN DESIGNATING THE MONTH). BEGINNING FEBRUARY 21,
1978, AUTHORIZATIONS WERE ENTERED IN THE LOG (JT. EXH. 20). THE LOG,
OBVIOUSLY, WAS USED FOR VARIOUS REASONS OTHER THAN AUTHORIZATION TO WEAR
CIVILIAN CLOTHES. FOR EXAMPLE, VEHICLE AUTHORIZATIONS WERE, IN SOME
INSTANCES, ENTERED UNDER A SEPARATE HEADING, SEE, FOR EXAMPLE, JOINT
EXHIBIT 20, P. 3, WHEREAS THE PLAIN CLOTHES AUTHORIZATIONS FOR THE SAME
DATES FOR WHITE AND NEILSON APPEAR AT P. 7; HOWEVER, THE ENTRY BY MR.
VERA FOR 3/22/78 "CONTACTS AT LKF", P. 3, IF INTENDED AS A PLAIN CLOTHES
DESIGNATION, APPEARS ONLY UNDER THE VEHICLE AUTHORIZATION HEADING AND NO
ENTRY FOR MR. VERA IS SHOWN FOR THIS DATE UNDER THE PLAIN CLOTHES
AUTHORIZATIONS.
IN THE BEGINNING, PLAIN CLOTHES AUTHORIZATIONS WERE WRITTEN IN THE
FORM OF AN AUTHORIZATION AND INITIALED BY A SUPERVISOR (SEE JT. EXH. 20,
P. 2) BUT BEGINNING WITH THE APRIL 10 ENTRY "CHANDLER-- MISS
SURVEILLANCE" (JT. EXH. 20, P. 7) MOST ENTRIES BECAME CRYPTIC AND
WITHOUT THE INITIAL OF A SUPERVISOR, SEE, FOR EXAMPLE, JOINT EXHIBIT 20,
P. 8, 4-26-27-28 "VERA-- SURVEILLANCE W/01". INDEED, AFTER APRIL 11,
1978, THE ONLY AUTHORIZATIONS TO WEAR PLAIN CLOTHES CLEARLY WRITTEN AS
AN AUTHORIZATION AND INITIALED BY A SUPERVISOR, THAT I HAVE NOTED, ARE
THOSE MADE BY MR. HALFACRE ON SEPTEMBER 20 AND 25 (JT. EXH. 20, P. 15).
THE LAST ENTRIES IN THE LOG, PRESUMABLY UNDER PLAIN CLOTHES
AUTHORIZATIONS, ARE FOR OCTOBER 24, "OSCAR TO ARK, MEET WITH STATE",
"LUM AND LONG LOCAL INFORMANTS", "10/23, 23, 25, 26 MEETING WITH C1'S IN
THE TENN, AREA" AND "10/27 MEETING C1." (JT. EXH. 20, P. 17); HOWEVER,
UNDER "VEHICLE" THERE IS AN ENTRY ON NOVEMBER 22, FOR EXAMPLE, "VERA TO
CONTACT C.I.", WHICH MAY, OR MAY NOT, HAVE BEEN INTENDED AS A PLAIN
CLOTHES AUTHORIZATION AND OTHER ENTRIES MAY, OR MAY NOT HAVE BEEN
INTENDED AS PLAIN CLOTHES AUTHORIZATION, SAY, FOR EXAMPLE 11/21 "WHITE
MET C.I."
IT IS CLEAR THAT MANY ENTRIES WERE MADE BY EMPLOYEES, FOR EXAMPLE,
4-26-27-78 "VERA-- SURVEILLANCE W/01" (JT. EXH. 20, P. 8), 8/24
"VERA-HOPE, ARK WORK ON CASES AND SURVEILLANCE" (JT. EXH. 20, P. 13),
9/17 VERA AND WADE AND JOACLIN TO LA. AND ARK ON DC 7" (JT. EXH. 20, P.
14) THE LATTER, APPARENTLY, NOT BEING A PLAIN CLOTHES AUTHORIZATION;
AND THAT INTERMINGLED ON THE LOG WERE VARIOUS ENTRIES MANY OF WHICH DID
NOT CONSTITUTE PLAIN CLOTHES AUTHORIZATIONS. THE SIGNIFICANT POINT IS
THAT WHATEVER THE PRACTICES IN THE AIR SUPPORT BRANCH VIS-A-VIS USE OF
THE LOG BOOK FOR PLAIN CLOTHES AUTHORIZATIONS IT WAS UNCHANGED FROM
APRIL 10 OR 11, 1978, UNTIL THE USE OF THE LOG BOOK FOR PLAIN CLOTHES
AUTHORIZATIONS CEASED, ABOUT NOVEMBER, 1978, WHEN THE REGIONAL FORM WAS
RECEIVED AND WAS, THEREAFTER USED.
WAS THERE ANY CHANGE IN POLICY WITH REGARD TO ACCESS TO THE LOG BOOK?
THE THRESHOLD QUESTION IS WHAT WAS THE POLICY PRIOR TO MAY 16, 1978?
MR. HALFACRE TESTIFIED THAT, AT LEAST FROM RECEIPT OF THE REGIONAL
CIRCULAR ON, OR ABOUT FEBRUARY 20, 1978, THE POLICY IN THE AIR SUPPORT
BRANCH WAS AS FOLLOWS:
"A. THE POLICY WAS THAT ANY TIME AN EMPLOYEE FELT IT WAS NECESSARY
FOR HIM TO WORK IN
CIVILIAN CLOTHES, THAT HE HAD TO ADVISE HIS SUPERVISOR OF WHAT HE
INTENDED TO DO THAT DAY AND
AND GET HIS SUPERVISOR'S APPROVAL TO WEAR CIVILIAN CLOTHES.
"Q. WAS THIS PERMISSION TO BE RECEIVED IN ADVANCE OF WEARING
CIVILIAN CLOTHES?
"A. IF THE OFFICER HAD AN OPPORTUNITY TO DISCUSS IT WITH HIS
SUPERVISOR IN ADVANCE
. . . IF HE DID NOT HAVE AN OPPORTUNITY TO ADVISE HIS SUPERVISOR IN
ADVANCE, THEN HE WAS
ALLOWED TO COME IN THE NEXT MORNING, ALREADY IN CIVILIAN CLOTHES, AND
THEN ADVISE HIS
SUPERVISOR OF THE REASON THAT HE WAS IN CIVILIAN CLOTHES. IF THE
SUPERVISOR WAS SATISFIED
WITH HIS REASON, THEN HE COULD APPROVE IT AT THAT TIME.
"Q. WHAT IF HE COULDN'T LOCATE HIS SUPERVISOR EITHER THE DAY BEFORE
OR THAT MORNING? WHAT
WAS THE EMPLOYEE TO DO?
"A. HE COULD GO AHEAD AND GO ON HIS MISSION, SIGN OUT IN THE LOG
BOOK ON HIS OWN, AND GO
AHEAD AND GO ON THE MISSION, AND ADVISE THE SUPERVISOR LATER WHAT HE
HAD DONE." (TR. 497). MR. HALFACRE'S TESTIMONY WAS FULLY SUPPORTED BY
THE TESTIMONY OF MR. CHAMBERS.
WITH FULL RECOGNITION THAT MR. VERA ASSERTED THAT, BASICALLY, THE
WORK OF THE AIR SUPPORT BRANCH IS A COVERT TYPE OPERATION AND THAT 95 TO
99 PERCENT OF THE TIME THEY WORK IN CIVILIAN CLOTHES WHICH CONTINUES TO
THE PRESENT TIME, HIS TESTIMONY AS TO THE POLICY OF THE AIR SUPPORT
BRANCH IS CONSISTENT WITH MR. HALFACRE'S TESTIMONY, WITH FURTHER
RECOGNITION, HOWEVER, THAT MR. VERA EMPHASIZED SITUATIONS WHERE THE
OFFICER DID NOT KNOW THE PRECEEDING DAY OF SOME DEVELOPMENT WHICH WOULD
REQUIRE THE WEARING OF CIVILIAN CLOTHES. THUS, MR. VERA TESTIFIED:
"A. OKAY, NOW WE ARE GETTING DOWN INTO THE AREA THAT-- AS WE ARE
APPROACHING THIS TIME,
THERE WAS NO REQUIREMENT (WHEN THE LOG BEGAN ON 2/21/78) FOR THE
OFFICER TO COME INTO THE
OFFICE, INTO A SUPERVISOR'S OFFICE ON THE DAY BEFORE AND SAY, . . .
TOMORROW, I PLAN TO BE IN
CIVILIAN CLOTHES, BECAUSE YOU DON'T REALLY KNOW. YOU MIGHT GET A
PHONE CALL THAT NIGHT AND
YOU MIGHT GET SOME INFORMATION PASSED IN THE COMMUNICATIONS CENTER
THAT MIGHT PROMPT YOU TO GO
OUT THE NEXT MORNING TO DO A SURVEILLANCE.
"SO THERE WAS NO REQUIREMENT . . . THAT YOU HAD TO HAVE PRIOR
APPROVAL ON THE DAY BEFORE.
"Q. NOW, DID SOME EMPLOYEES SEEK AND OBTAIN APPROVAL?
"A. UNDOUBTEDLY, SOME EMPLOYEES, IF THEY KNEW IN ADVANCE, THEY WOULD
GO IN THERE AND SAY,
WELL, YOU KNOW, TOMORROW, I AM PLANNING ON LEAVING TO GO OUT OF TOWN
MAYBE TO NASHVILLE,
TENNESSEE OR WHATEVER, AND THEY WOULD NOTIFY A SUPERVISOR WHEN THEY
KNEW THAT THEY WERE GOING
OUT OF TOWN AND SAY, YOU KNOW, I WOULD LIKE TO GO, YOU KNOW, IN
CIVILIAN CLOTHES.
"CERTAINLY, I CAN NOT THINK OF ANY INSTANCE OR ANY COMPLAINT WHEN THE
PERMISSION WAS DENIED
BECAUSE CERTAINLY THE BRANCH CHIEF AND THE SUPERVISOR RECOGNIZE THAT
WE NEED TO DO THESE KIND
OF ACTIVITIES IN CIVILIAN CLOTHES AND NOT IN UNIFORM."
(TR. 403-404).
ACCEPTING MR. VERA'S TESTIMONY AS TO THE OCCURRENCE OF MAY 16, 1978,
THE MOST THAT CAN BE SAID IS THAT MESSRS. NEILSON AND VERA REPORTED IN
CIVILIAN CLOTHES, SUPERVISOR CHAMBERS ASKED MR. NEILSON WHY HE WAS IN
CIVILIAN CLOTHES AND WHEN MR. NEILSON TOLD HIM HE WAS GOING DOWNTOWN FOR
A MEETING WITH THE DIRECTOR OF PERSONNEL, WITH MR. VERA, MR. CHAMBERS
DENIED PERMISSION FOR MR. NEILSON TO "WORK IN CIVILIAN CLOTHES" FOR SUCH
REASON AND TOLD HIM TO GET HIMSELF IN UNIFORM. THEREAFTER, HE TOLD MR.
VERA, IN SUBSTANCE, THE SAME, AND, OBVIOUSLY, DID NOT BELIEVE MR. VERA'S
ASSERTION THAT, AFTER THE MEETING, THEY WERE GOING TO "ATTEMPT TO
CONTACT A CONFIDENTIAL SOURCE OF INFORMATION" BUT SUGGESTED, IN ANY
EVENT, THAT MR. VERA TAKE ALONG A CIVILIAN SHIRT AND HE COULD CHANGE AT
THE REGIONAL OFFICE AND THEN TRY TO MAKE HIS CONTACT WITH THE INFORMANT.
NEVERTHELESS, THE RECORD DOES NOT SHOW THAT MR. CHAMBERS DENIED
PERMISSION FOR MESSRS. NEILSON AND VERA TO "WORK IN CIVILIAN CLOTHES" ON
MAY 16, 1978, BECAUSE THEY HAD NOT OBTAINED PRIOR AUTHORIZATION; BUT,
RATHER, THAT PERMISSION WAS DENIED BECAUSE MR. CHAMBERS WAS NOT
SATISFIED WITH THE REASON GIVEN. IT CLEARLY APPEARS, BOTH FROM MR.
HALFACRE'S TESTIMONY AND FROM MR. VERA'S TESTIMONY, THAT ADVANCE
APPROVAL WAS DESIRED IF THE OFFICER(S) KNEW IN ADVANCE AND HAD AN
OPPORTUNITY TO DISCUSS IT WITH HIS SUPERVISOR IN ADVANCE; BUT THE RISK
OF NOT DOING SO WAS THAT THE SUPERVISOR WOULD DENY APPROVAL IF HE WERE
NOT SATISFIED WITH THE REASON GIVEN. MR. CHAMBERS DID NOT ORDER MR.
NEILSON TO GET INTO UNIFORM BECAUSE HE HAD NOT BEEN GIVEN PRIOR
AUTHORITY TO WEAR CIVILIAN CLOTHES, BUT INQUIRED WHAT HE WAS GOING TO DO
THAT DAY AND WHEN MR. NEILSON TOLD HIM HE WAS GOING TO A MEETING AT
PERSONNEL, TOLD HIM TO GET HIMSELF IN UNIFORM. THIS ACTION SIMPLY FAILS
TO ESTABLISH ANY CHANGE IN POLICY. TO THE CONTRARY, THE RECORD SHOWS,
AS SET FORTH ABOVE, THAT ACCESS TO, AND UTILIZATION OF, THE LOG REMAINED
CONSTANT AND REFLECTS NO CHANGE IN PRACTICE SINCE WELL BEFORE MAY 16,
1978, OR THEREAFTER UNTIL ITS USE FOR PLAIN CLOTHES AUTHORIZATION CEASED
IN OCTOBER OR NOVEMBER, 1978. THERE IS NO EVIDENCE OR TESTIMONY THAT
THE POLICY, AS STATED BY MR. HALFACRE, WAS EVER CHANGED; THAT OFFICERS
WERE PROHIBITED FROM REPORTING TO WORK IN CIVILIAN CLOTHES BECAUSE THEY
HAD NOT OBTAINED PRIOR APPROVAL, OR THAT APPROVAL TO WORK IN CIVILIAN
CLOTHES WAS EVER DENIED, INCLUDING THE INCIDENT OF MAY 16, 1978, BECAUSE
PRIOR APPROVAL HAD NOT BEEN OBTAINED.
COMPLAINANT'S CONVOLUTED REASONING REFLECTS, IN REALITY, AN EFFORT TO
AVOID APPLICATION OF THE REGIONAL CIRCULAR, WHICH SET FORTH THOSE
CIRCUMSTANCES WHICH MAY WARRANT A PLAIN CLOTHES ASSIGNMENT, TO THE AIR
SUPPORT BRANCH. COMPLAINANT MISCONCEIVES THE LEGAL EFFECTS OF
RESPONDENT'S ACTIONS. AT THE OUTSET, THE IMPLEMENTATION OF RESPONDENT'S
POLICY STATEMENT 3400-02, ON OR ABOUT OCTOBER 1, 1977, BY THE AIR
SUPPORT BRANCH MAY HAVE BEEN, AND VERY PROBABLY WAS, IN DEROGATION OF
THE EXECUTIVE ORDER; BUT COMPLAINANT, WITH FULL KNOWLEDGE OF THE ACTION
TAKEN BY THE AIR SUPPORT BRANCH, ELECTED NOT TO FILE AN UNFAIR LABOR
PRACTICE CHARGE. POLICY STATEMENT 3400-02 ITSELF SPECIFICALLY PROVIDED
THAT, "REGION AND COMMISSIONERS WILL DESIGNATE, IN WRITING, THOSE TYPES
OF ASSIGNMENTS WHERE THE WEARING OF THE UNIFORM WOULD BE INAPPROPRIATE
WITH THE NATURE OF THE ASSIGNMENT." ASSUMING THAT THE AIR SUPPORT BRANCH
UNILATERALLY IMPLEMENTED THE POLICY STATEMENT IN VIOLATION OF THE ORDER,
RESPONDENT WAS NOT THEREBY PRECLUDED FROM DESIGNATION OF THOSE TYPES OF
ASSIGNMENTS FOR WHICH THE WARING OF PLAIN CLOTHES COULD BE AUTHORIZED,
WHICH, OF COURSE, WAS SPECIFICALLY PROVIDED FOR IN THE POLICY STATEMENT.
RESPONDENT GAVE COMPLAINANT NOTICE OF ITS PROPOSED REGIONAL CIRCULAR ON
NOVEMBER 9, 1977, AND THE PARTIES NEGOTIATED IMPACT AND IMPLEMENTATION
OF THE CIRCULAR ON DECEMBER 13, 1977. THERE CAN BE NO QUESTION THAT THE
CIRCULAR, AS PROPOSED, 0Y ITS TERMS, APPLIED TO THE AIR SUPPORT BRANCH;
OR THAT THE CIRCULAR, AS ISSUED FOLLOWING THE NEGOTIATIONS OF DECEMBER
13, 1977, BY ITS TERMS, APPLIED TO THE AIR SUPPORT BRANCH. WITH NOTICE
OF THE REGIONAL CIRCULAR AND OPPORTUNITY TO NEGOTIATE, WHETHER
COMPLAINANT ELECTED NOT TO NEGOTIATE CONCERNING ITS APPLICATION TO THE
AIR SUPPORT BRANCH WAS A CHOICE COMPLAINANT WAS FREE TO MAKE; BUT
WHETHER COMPLAINANT EXERCISED ITS RIGHT TO NEGOTIATE AS TO THE AIR
SUPPORT BRANCH, JOINT EXHIBIT 19, THE PRODUCT OF THOSE NEGOTIATIONS, BY
ITS TERMS, APPLIED TO THE AIR SUPPORT BRANCH PRECISELY AS PROPOSED BY
RESPONDENT ON NOVEMBER 9, 1977, AND IMPLEMENTATION BY RESPONDENT ON
FEBRUARY 8, 1978, PURSUANT TO THE ORAL AGREEMENT OF THE PARTIES OF
DECEMBER 13, 1977, WAS NOT IN VIOLATION OF 19(A)(6) OR (1) OF THE ORDER.
UNITED STATES DEPARTMENT OF NAVY, BUREAU OF MEDICINE AND SURGERY, GREAT
LAKES NAVAL HOSPITAL, ILLINOIS, A/SLMR NO. 289, 3 A/SLMR 375(1973);
NAVY EXCHANGE, U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND,
A/SLMR NO. 180, 2 A/SLMR 376(1972); UNITED STATES AIR FORCE ELECTRONICS
SYSTEMS DIVISION (AFSC), HANSCOM AIR FORCE BASE, A/SLMR NO. 571, 5
A/SLMR 651(1975); SOUTHEAST EXCHANGE REGION OF THE ARMY AND AIR FORCE
EXCHANGE SERVICE, ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH CAROLINA, A/SLMR
NO. 656, 6 A/SLMR 237(1976); ALABAMA NATIONAL GUARD, A/SLMR NO. 660, 6
A/SLMR 267(1976; DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE,
REGION I, BOSTON, MASSACHUSETTS, A/SLMR NO. 951, 7 A/SLMR, 1070(1977);
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BRSI, NORTHEASTERN PROGRAM SERVICE CENTER, A/SLMR NO.
984(1978). INDEED, THE OBLIGATION TO NEGOTIATE ON PROCEDURES AND IMPACT
RUNS ONLY TO THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, HERE, CHAPTER 168,
NOT CHAPTER 168, EXCLUSIVE OF THE AIR SUPPORT BRANCH, INTERNAL REVENUE
SERVICE AND INTERNAL REVENUE SERVICE, SOUTH CAROLINA DISTRICT OFFICE,
A/SLMR NO. 1027(1978); BUT INASMUCH AS RESPONDENT'S PROPOSED REGIONAL
CIRCULAR APPLIED TO THE ENTIRE BARGAINING UNIT AND THE REGIONAL CIRCULAR
AS NEGOTIATED APPLIED TO THE ENTIRE BARGAINING UNIT, IT IS UNNECESSARY
TO DECIDE AND, ACCORDINGLY, I DO NOT DECIDE WHAT RESPONDENT'S OBLIGATION
TO BARGAIN MAY HAVE BEEN HAD COMPLAINANT SOUGHT TO BARGAIN SEPARATELY AS
TO THE AIR SUPPORT BRANCH. IT HAS LONG BEEN ESTABLISHED THAT A CHANGE
IN ENFORCEMENT OF WRITTEN STANDARDS MAY CONSTITUTE A BARGAINABLE ISSUE,
SEE FOR EXAMPLE, NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 244, 3
A/SLMR 88(1973); BUT DECISIONS, SUCH AS NATIONAL LABOR RELATIONS BOARD,
SUPRA, ARE SIMPLY NOT IN POINT. TO THE CONTRARY, THE GRAVAMAN OF
NATIONAL LABOR RELATIONS BOARD, SUPRA, WAS THAT FOR SOME TEN YEARS "TIME
TARGETS" GOVERNING THE PROCESSING OF CASES HAD BEEN APPLIED AS EACH
BOARD MEMBER SAW FIT AND THAT IN 1970 THE BOARD INSTITUTED CHANGES IN
TIME SCHEDULES WITHOUT "CONSULTING, CONFERRING OR NEGOTIATING" WITH THE
EXCLUSIVE REPRESENTATIVE OF ITS UNIT EMPLOYEES. HERE, WHOLLY UNLIKE THE
SITUATION IN NATIONAL LABOR RELATIONS BOARD, SUPRA, RESPONDENT GAVE
NOTICE OF ITS PROPOSED REGIONAL CIRCULAR, THE PARTIES DID MEET AND
NEGOTIATE IMPACT AND IMPLEMENTATION, AND THE REGIONAL CIRCULAR, AS
IMPLEMENTED ON FEBRUARY 8, 1978, WAS THE PRODUCT OF THOSE NEGOTIATIONS.
IMPLEMENTATION OF THE POLICY STATEMENT BY THE AIR SUPPORT BRANCH IN
OCTOBER, 1977, MAY HAVE ESTABLISHED A CONDITION OF EMPLOYMENT AND
UNILATERAL CHANGE MIGHT HAVE VIOLATED SECTION 19(A)(1) AND (6), U.S.
DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NEW ORLEANS
DISTRICT, NEW ORLEANS, LOUISIANA, A/SLMR NO. 1034(1978); INTERNAL
REVENUE SERVICE, SOUTHWEST REGION, APPELLANT BRANCH OFFICE, NEW ORLEANS,
LOUISIANA, A/SLMR NO. 1153(1978); BUT RESPONDENT WAS NOT PRECLUDED FROM
GIVING NOTICE OF ITS REGIONAL CIRCULAR, SPECIFICALLY PROVIDED FOR IN THE
POLICY STATEMENT, AND IMPLEMENTING THAT CIRCULAR AFTER NEGOTIATIONS.
OF COURSE, AFTER IMPLEMENTATION ON FEBRUARY 8, 1978, MR. HALFACRE
TESTIFIED THAT, TO HIS KNOWLEDGE, NO PLAIN CLOTHES REQUEST HAD BEEN
APPROVED EXCEPT FOR A CIRCUMSTANCE SET FORTH IN THE REGIONAL CIRCULAR;
AND MR. CHAMBERS TESTIFIED THAT MESSRS. NEILSEN'S AND VERA'S REQUEST TO
WEAR CIVILIAN CLOTHES FOR A MEETING AT PERSONNEL DID NOT MEET ANY
CRITERIA OF THE REGIONAL CIRCULAR, I.E., COMPROMISE AN ENFORCEMENT
MISSION, WHICH CIRCULAR HE FOLLOWED AND APPLIED. ACCORDINGLY, WHILE I
HAVE FOUND THAT THERE WAS NO CHANGE IN POLICY ON MAY 16, 1978, WITH
RESPECT TO PRIOR APPROVAL, SINCE IT HAD BEEN THE POLICY SINCE OCTOBER,
1977, TO OBTAIN PRIOR APPROVAL WHERE FEASIBLE, TO THE EXTENT THAT PRIOR
POLICY HAD BEEN CHANGED BY IMPLEMENTATION OF THE REGIONAL CIRCULAR, SUCH
CHANGE OF POLICY WAS PROPER INASMUCH AS THE REGIONAL CIRCULAR HAD BEEN
IMPLEMENTED AFTER NOTICE AND OPPORTUNITY FOR COMPLAINANT TO BARGAIN,
INDEED, COMPLAINANT CONCEDES THAT THE REGIONAL CIRCULAR, JOINT EXHIBIT
19, WAS THE PRODUCT OF THE NEGOTIATIONS OF DECEMBER 13, 1977.
FOR ALL OF THE FOREGOING REASONS, I FIND THAT COMPLAINANT HAS NOT
SHOWN A VIOLATION OF SECTIONS 19(A)(6) AND (1) OF THE ORDER IN CASE NO.
64-4250(CA) AND THE COMPLAINT IN CASE NO. 64-4250(CA) IS HEREBY
DISMISSED.
IV. CASE NO. 64-4251(CA)
THIS CASE INVOLVES ALLEGED DIRECT DEALING BY MANAGEMENT WITH UNIT
EMPLOYEES, AND THE BY-PASSING OF THE EXCLUSIVE REPRESENTATIVE, WITH
RESPECT TO STAFFING OF A PROJECTED DUTY STATION IN NASHVILLE, TENNESSEE.
THE COMPLAINT ASSERTS, IN ESSENCE, THAT RESPONDENT CONDUCTED A POLL
AND/OR A SURVEY OF EMPLOYEES AND THAT RESPONDENT HAD NAMED TWO
VOLUNTEERS TO FILL THE TWO POSITIONS PROJECTED FOR NASHVILLE; THAT
RESPONDENT ACTED UNILATERALLY WITHOUT NOTICE TO COMPLAINANT; AND THAT
COMPLAINANT WAS GIVEN NO OPPORTUNITY, PRIOR TO SELECTION OF THE
EMPLOYEES, TO MEET AND CONFER/NEGOTIATE CONCERNING THE SUBSTANCE AND/OR
IMPACT AND IMPLEMENTATION OF THE OPENING AND FILLING OF ANY POSITIONS IN
NASHVILLE.
THERE IS NO DISAGREEMENT THAT THE AIR SUPPORT BRANCH HAD ACTIVELY
URGED THE ESTABLISHMENT OF A SATELLITE OFFICE OR OFFICES OVER A PERIOD
OF YEARS. INITIALLY, IN 1975, MEMPHIS WAS UNDER CONSIDERATION AND MR.
TERRY L. WHITE, AN AIR SUPPORT BRANCH PILOT, TESTIFIED THAT, AS HE WAS
ASSIGNED TO WORK THE TENNESSEE AREA, HE HAD PERSONALLY RECOMMENDED THE
SELECTION OF NASHVILLE BECAUSE THE STATE'S LAW ENFORCEMENT HEADQUARTERS
WERE LOCATED THERE. IN ADDITION, MR. WHITE STATED THAT HE HAD SUGGESTED
THAT PERHAPS LATER THEY COULD ALSO GET AN OFFICE IN LITTLE ROCK,
ARKANSAS. MR. HALFACRE TESTIFIED THAT IN 1976 HE HAD REQUESTED
AUTHORIZATION FOR THE AIR SUPPORT BRANCH TO OPEN AN OFFICE IN NASHVILLE
BUT THAT THERE WAS NEVER ANY ACTION TAKEN ON HIS REQUEST. IN 1977, HE
MADE A FURTHER RECOMMENDATION TO THE SAME EFFECT AND NOTHING REALLY EVER
HAPPENED ON THAT RECOMMENDATION (SEE JOINT EXH. 23). HE STATED THAT
EITHER IN 1976 OR 1977 HE HAD ALSO REQUESTED AUTHORIZATION FOR AN OFFICE
IN LITTLE ROCK. JOINT EXHIBIT 22 SHOWS THAT THE REQUEST FOR LITTLE
ROCK, AS WELL AS FOR NASHVILLE, WAS MADE ON NOVEMBER 16, 1976. ON
JANUARY 30, 1978 (JOINT EXHIBIT 25), MR. HALFACRE AGAIN REQUESTED THAT
CONSIDERATION BE GIVEN TO OPENING A SATELLITE OFFICE IN NASHVILLE AND HE
RECOMMENDED A COMPLIMENT OF TWO AIR OFFICERS, ONE PILOT AND ONE
AIRCRAFT. ON FEBRUARY 3, 1978, MR. CHARLES J. COLOMES, JR., REGIONAL
DIRECTOR OF OPERATIONS, ENDORSED MR. HALFACRE'S REQUEST TO ESTABLISH AN
OFFICE AT NASHVILLE, TENNESSEE (JOINT EXHIBIT 26). ON FEBRUARY 8, 1978,
MR. HALFACRE SUBMITTED ADDITIONAL DATA TO SUPPORT HIS RECOMMENDATION
(JOINT EXHIBIT 27); ON FEBRUARY 17, 1978, MR. CHAMBERS REQUESTED
AUTHORIZATION TO SEND PILOTS NEILSON AND WHITE ON TEMPORARY DUTY TO
NASHVILLE TO CONTACT STATE AND LOCAL LAW ENFORCEMENT OFFICERS (JOINT
EXHIBIT 28); ON FEBRUARY 21, 1978, MR. HALFACRE SUBMITTED ADDITIONAL
INFORMATION IN SUPPORT OF HIS RECOMMENDATION (JOINT EXH. 29); AND ON
MAY 18, 1978, AT A MEETING OF MANAGEMENT OFFICIALS, INCLUDING REGIONAL
COMMISSIONER CHARLES W. FISHER, REGION V MANAGEMENT, CONTINGENT UPON
SECURING FREE SPACE, APPROVED ESTABLISHMENT OF THE PATROL SUBOFFICE IN
NASHVILLE, WITH AN INITIAL COMPLEMENT OF TWO AIR OFFICERS, BY
APPROXIMATELY JULY 1, 1978 (JOINT EXHIBIT 30).
BY LETTER DATED JUNE 16, 1978, MR. JAMES W. THORNTON, NATIONAL FIELD
REPRESENTATIVE, NTEU, ADVISED RESPONDENT THAT COMPLAINANT HAD LEARNED
THAT A NEW AIR OFFICE WAS POSSIBLY SCHEDULED TO BE OPENED IN NASHVILLE
IN THE NEAR FUTURE, THAT COMPLAINANT HAD NOT BEEN NOTIFIED OFFICIALLY OF
THIS ACTION; BUT THAT COMPLAINANT DESIRED "TO MEET AND CONFER/NEGOTIATE
CONCERNING THE SUBSTANCE AND/OR IMPACT AND IMPLEMENTATION THAT AFFECTS
ANY ESTABLISHMENT OF ANY NEW STATION(S) AND THE MANNING OF ANY SUCH
STATION(S). . . . " (JOINT EXHIBIT 31). ON JUNE 20, 1978 MRS. LORRAINE
VARBEL, EMPLOYEE RELATIONS SPECIALIST REGION V, CONTACTED MR. HALFACRE
AND ASKED HIM IF HE HAD ANY KNOWLEDGE ABOUT A DUTY STATION BEING
ESTABLISHED IN NASHVILLE AND IF HE HAD, HAD HE CONTACTED COMPLAINANT IN
REGARD TO THE ESTABLISHMENT AND THE METHOD BY WHICH STAFFING WOULD BE
DONE. MRS. VARBEL TESTIFIED THAT MR. HALFACRE TOLD HER THAT HE WASN'T
SURE ABOUT ANY OF IT AT THAT POINT, THAT HE WASN'T SURE THAT THERE WOULD
BE AN AIR BRANCH IN NASHVILLE NOR WAS HE SURE HOW THEY WOULD ARRIVE AT
THE STAFFING EXCEPT THAT, IF THERE WERE, IN FACT, GOING TO BE A STATION
THEY MIGHT SELECT PEOPLE TO MOVE ON A VOLUNTEER BASIS; THAT SHE TOLD
MR. HALFACRE THAT HE WOULD HAVE TO DISCUSS WITH THE STEWARD HOW HE WOULD
GO ABOUT SELECTING PEOPLE.
MR. HALFACRE MET WITH MR. OSCAR VERA, STEWARD, ON JUNE 20, 1978, AT
APPROXIMATELY 3:45 P.M., AND TESTIFIED THAT, PURSUANT TO MRS. VARBEL'S
ADVICE, HE TOLD MR. VERA THAT "THE METHOD THAT WOULD PROBABLY BE USED
WOULD BE TO ASK FOR VOLUNTEERS . . . THAT THERE WOULD BE TWO AIR
OFFICERS GOING. I ADVISED HIM THAT WE WOULD PROBABLY ASK FOR VOLUNTEERS
FROM THE FOUR AIR OFFICERS WHO WERE ASSIGNED TO THE NEW ORLEANS AIR
BRANCH AND THAT WE WOULD PROBABLY PICK TWO AIR OFFICERS FROM HOW EVER
MANY VOLUNTEERS WE HAD. AND AT THAT TIME, I HAD RECEIVED VOLUNTARY
REQUESTS, SO TO SPEAK, FROM THREE AIR OFFICERS THAT THEY WOULD LIKE TO
GO IF THERE WAS AN OFFICE INDEED OPENED IN NASHVILLE." (TR. 647-648)
(SEE, ALSO, JOINT EXHIBIT 34). MR. VERA STATED THAT HE WAS UNABLE TO
DISCUSS THE MATTER AT THAT TIME BUT WOULD GET BACK WITH MR. HALFACRE AT
A LATER DATE. ON JUNE 21, 1978, MR. VERA DELIVERED A LETTER TO MR.
HALFACRE, DATED JUNE 20, 1978, (JOINT EXHIBIT 32) IN WHICH HE STATES
THAT HE HAD BEEN INFORMED THAT MR. THORNTON HAD ALREADY (JOINT EXHIBIT
31) REQUESTED FORMAL NEGOTIATIONS AND, ACCORDINGLY, INFORMAL
NEGOTIATIONS BETWEEN HIMSELF AND MR. HALFACRE COULD NOT BE ENTERTAINED
AT THAT TIME.
ON JUNE 23, 1978, MR. VINCENT L. CONNERY, NATIONAL PRESIDENT OF NTEU,
FILED THE CHARGE HEREIN (COMP. EXH. 10); RESPONDENT, BY LETTER DATED
JUNE 28 OR 30 (BOTH DATES ARE SHOWN) SUGGESTED A MEETING ON JULY 10,
1978 (JOINT EXHIBIT 36) TO NEGOTIATE STAFFING PURSUANT TO MR. THORNTON'S
REQUEST DATED JUNE 16, MR. THORNTON, BY LETTER DATED JULY 14, 1978
(JOINT EXHIBIT 37) CONFIRMED AN AGREED DATE OF AUGUST 8, 1978, TO
DISCUSS THE CHARGE.
ON JULY 17, 1978, VERNON V. HANN, ASSISTANT COMMISSIONER, OPERATIONS,
WASHINGTON, D.C., ADVISED MR. FISHER, THAT AUTHORIZATION FOR FUNDS TO
ESTABLISH AN OFFICE IN NASHVILLE WAS REJECTED FOR THE REASON THAT
"HEADQUARTERS DOES NOT BELIEVE A NEW ASB OFFICE SHOULD BE ESTABLISHED IN
THE INTERIOR" (JOINT EXHIBIT 38) AND BY MEMORANDUM DATED AUGUST 28, 1978
(JOINT EXHIBIT 40), MR. HANN AGAIN STATED THAT THE REQUEST FOR FUNDS TO
OPEN A SATELLITE AIR SUPPORT BRANCH AT NASHVILLE, TENNESSEE, HAD BEEN
DEFERRED INDEFINITELY AND EMPHASIZED THAT, WITH PARTICIPATION IN THE
U.S. AIR FORCE AIRBORNE WARNING AND CONTROL SYSTEM, IT "WILL BE MORE
IMPORTANT TO HAVE OUR PATROL OFFICERS IN CLOSE PROXIMITY TO OUR LAND AND
SEA BORDERS WHERE THEY CAN RESPOND TO THE SMUGGLING THREAT." (JOINT
EXHIBIT 30, PAR. 3).
IT IS PERFECTLY CLEAR THAT, PRIOR TO JUNE 20, 1978, RESPONDENT HAD
NOT OFFICIALLY ADVISED COMPLAINANT THAT IT CONTEMPLATED THE OPENING OF
AN AIR BRANCH DUTY STATION IN NASHVILLE ALTHOUGH IT IS EQUALLY CLEAR
THAT EVERYONE IN THE AIR SUPPORT BRANCH, INCLUDING MR. VERA, WAS FULLY
AWARE OF THE PROJECTED NASHVILLE DUTY STATION AND THE INTENDED INITIAL
STAFFING OF THE STATION WITH TWO AIR OFFICERS. COMPLAINANT DOES NOT
DISPUTE RESPONDENT'S UNILATERAL RIGHT TO DECIDE THE OPENING OF A
SATELLITE OFFICE AND/OR THE NATURE OF THE STAFFING OF SUCH PROJECTED
OFFICE. IN ANY EVENT, THE DECISION TO CREATE A NEW DUTY STATION WAS A
RESERVED RIGHT OF MANAGEMENT UNDER SECTION 11(B) OF THE ORDER, UNITED
STATES AIR FORCE ELECTRONICS SYSTEM DIVISION (AFSC), HANSCOM AIR FORCE
BASE, A/SLMR NO. 571, 5 A/SLMR 651(1975), AND UNDER SECTION 12(B) OF THE
ORDER, U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY
ADMINISTRATION, OFFICE OF FEDERAL HIGHWAY PROJECTS, VANCOUVER,
WASHINGTON, A/SLMR NO. 612, 6 A/SLMR 87(1976).
ALTHOUGH, AS RESPONDENT STATES IN ITS BRIEF AT PAGES 43-45, WHERE, AS
HERE, A TENTATIVE DECISION, OR PROPOSAL, IS NEVER FINALIZED, THE DUTY TO
MEET AND CONFER ON IMPACT AND IMPLEMENTATION NEVER MATURES, SEE, FOR
EXAMPLE, HANSCOM AIR FORCE BASE, SUPRA; U.S. ARMY ELECTRONICS COMMAND,
FORT MANMOUTH, NEW JERSEY. A/SLMR NO. 732, 6 A/SLMR 565(1976). THE
RECORD SHOWS THAT THE DECISION OF THE REGIONAL COMMISSIONER TO OPEN A
NASHVILLE AIR SUPPORT BRANCH OFFICE AND TO STAFF IT WITH TWO AIR
OFFICERS WAS A FIRM DECISION AT THAT LEVEL, WITH A TARGET DATE OF JULY
1, 1978, FOR COMMENCEMENT OF OPERATIONS, BUT THE REGIONAL COMMISSIONER'S
DECISION WAS, NEVERTHELESS, NO MORE THAN A RECOMMENDATION TO HIGHER
HEADQUARTERS AND THE RECOMMENDATION WAS REJECTED BY WASHINGTON
(CUSTOMS
HEADQUARTERS) FOR THE STATED REASON THAT HEADQUARTERS "DOES NOT BELIEVE
A NEW ASB OFFICE SHOULD BE ESTABLISHED IN THE INTERIOR." (JT. EXH.38;
SEE ALSO, JT. EXH. 40, PAR. 3). AS OF JULY 17, 1978, THE DATE THAT
HEADQUARTERS REJECTED THE PROPOSED NASHVILLE AIR SUPPORT BRANCH OFFICE,
THE PROPOSED OFFICE HAD NOT BEEN OPENED, NOTWITHSTANDING THE JULY 1,
1978, TARGET DATE FOR COMMENCEMENT OF OPERATIONS. I ALSO AGREE WITH
RESPONDENT THAT NEITHER THE MEETING BETWEEN MR. HALFACRE AND MR. VERA
NOR THE REQUEST FOR NEGOTIATIONS BY MR. THORNTON, TO WHICH RESPONDENT
REPLIED AND AGREED TO MEET, CREATED AN OBLIGATION TO BARGAIN WHERE NONE
EXISTED; BUT THE ISSUE HERE, AS ASSERTED IN THE COMPLAINT, IS WHETHER
RESPONDENT CONDUCTED A POLL OR PARTICIPATED IN A SURVEY OF EMPLOYEES AND
THEREBY UNILATERALLY DEALT WITH EMPLOYEES AND BYPASSED COMPLAINANT IN
VIOLATION OF ITS OBLIGATIONS UNDER THE ORDER. FOR REASONS SET FORTH
HEREINAFTER, I CONCLUDE THAT RESPONDENT DID NOT: (A) CONDUCT A POLL, OR
SURVEY, OF EMPLOYEES; OR (B) SELECT, OR DESIGNATE, ANY EMPLOYEE FOR
TRANSFER TO NASHVILLE AND, ACCORDINGLY, THAT RESPONDENT DID NOT VIOLATE
EITHER SECTION 19(A)(1) OR (6) OF THE ORDER AS ALLEGED IN THE COMPLAINT.
/6/
IT IS BEYOND QUESTION THAT EACH OF THE FOUR AIR OFFICERS WENT TO ONE,
OR MORE, SUPERVISORS AND MADE KNOWN HIS INTEREST IN GOING TO NASHVILLE
IF AN AIR BRANCH OFFICE WERE ESTABLISHED THERE. /7/ THE TESTIMONY OF
EACH OF THE FOUR AIR OFFICERS, NAMELY MESSRS. WADE, LONG, JOACHIM AND
LUM, AND OF SUPERVISORS HALFACRE AND CHAMBERS, HAS BEEN CAREFULLY
EXAMINED, AND RE-EXAMINED, TOGETHER WITH THE TESTIMONY OF COMPLAINANT'S
WITNESSES. EACH AIR OFFICER DENIED THAT HE HAD EVER BEEN APPROACHED, IN
ANY MANNER BY MANAGEMENT CONCERNING THE NASHVILLE OFFICE, I.E., THAT NO
SUPERVISOR HAS EVER ASKED IF HE WANTED TO VOLUNTEER FOR NASHVILLE OR HAD
TAKEN ANY POLL; AND MR. HALFACRE AND MR. CHAMBERS TESTIFIED THAT THEY
HAD NEVER APPROACHED ANY EMPLOYEE CONCERNING POSSIBLE INTEREST IN
NASHVILLE. MR. JOACHIM'S DECISION IN MID-MAY, 1978, THAT HE WAS NO
LONGER INTERESTED IN GOING TO NASHVILLE, WAS COMMON KNOWLEDGE AMONG THE
EMPLOYEES; IT WAS ALSO COMMON KNOWLEDGE THAT THE REGIONAL COMMISSIONER
HAD DECIDED TO STAFF THE PROJECTED OFFICE WITH TWO AIR OFFICERS; AND,
OBVIOUSLY, THE AIR OFFICERS HAD MADE THEIR OWN ANALYSIS AND CONCLUDED
THAT AIR OFFICERS WADE AND LONG WOULD BE THE TWO TO GO SINCE AIR OFFICER
LUM, WHO HAD COME TO THE AIR SUPPORT BRANCH IN NEW ORLEANS IN APRIL,
1978, HAD THE LEAST SENIORITY AND THE LEAST EXPERIENCE, AND AIR OFFICER
JOACHIM HAD MADE KNOWN THAT HE WAS NO LONGER INTERESTED.
MR. VERA TESTIFIED THAT HE HAD ASKED MR. JOACHIM AND MR. LUM IF THEY
HAD BEEN POLLED OR HAD BEEN ASKED BY MANAGEMENT IF THEY WERE INTERESTED
IN GOING TO NASHVILLE AND THAT EACH TOLD HIM HE HAD BEEN APPROACHED BY
MANAGEMENT. MR. NEILSON TESTIFIED THAT MR. LUM TOLD HIM THAT MR.
HALFACRE HAS APPROACHED HIM AND ASKED IF HE WANTED TO APPLY FOR THE
NASHVILLE OFFICE. MR. LUM CATEGORICALLY DENIED THAT HE WAS EVER ASKED
BY ANY MEMBER OF MANAGEMENT IF HE WERE INTERESTED IN BEING ASSIGNED TO
NASHVILLE. MR. LUM TESTIFIED THAT WHEN HE ARRIVED IN NEW ORLEANS IN
APRIL, 1978, THERE WAS A LOT OF TALK ABOUT A NASHVILLE STATION; THAT HE
WENT TO MR. CHAMBERS TO MAKE KNOWN HIS INTEREST; THAT MR. CHAMBERS WAS
IN MR. HALFACRE'S OFFICE; AND THAT HE HAD GONE INTO THE OFFICE AND TOLD
THEM:
" . . . I HAD HEARD RUMORS ABOUT THERE BEING A NASHVILLE OFFICE AND
ALSO THERE WAS A
POSSIBILITY OF IT AND WHEN THERE WAS A POSSIBILITY OF IT AND WHEN
THERE WAS A NASHVILLE OFFICE
OPEN, THERE WAS GOING TO BE ONE IN ARKANSAS POSSIBLY.
"I TOLD THEM THAT I WOULD BE INTERESTED IN EITHER THAT MIGHT BE
OPENED PARTICULARLY
NASHVILLE . . . . " (TR. 894). AS TO THE DISCUSSION WITH MR. VERA,
MR. LUM TESTIFIED AS FOLLOWS:
"Q. DID YOU TELL HIM (MR. VERA) AT THAT TIME THAT YOU HAD BEEN ASKED
BY A SUPERVISOR OR A
MEMBER OF MANAGEMENT IF YOU WANTED TO GO TO NASHVILLE?
"A. MR. VERA APPROACHED ME ASKING IF I HAD HAD ANY DISCUSSION WITH
ANY SUPERVISOR
CONCERNING THE NASHVILLE OFFICE.
"I TOLD HIM THAT INDEED I HAD HAD A DISCUSSION WITH MR. HALFACRE AND
MR. RON CHAMBERS
DISCUSSING THE NASHVILLE OFFICE.
"I TOLD MR. VERA WHAT I JUST FINISHED TELLING THE COURT; THAT I DID
GO TO MR. HALFACRE
STATING THAT INDEED I WOULD LIKE TO BE CONSIDERED FOR NASHVILLE OR
ARKANSAS.
"Q. BUT DID YOU TELL HIM AT ANY TIME THAT MR. HALFACRE OR MR.
CHAMBERS OR
MR. S. SCHOELERMAN (SIC) HAD ASKED YOU IF YOU WANTED TO GO?
"A. CERTAINLY NOT.
"Q. DID YOU TELL MR. VERA AT ANY TIME THAT A MANAGEMENT OFFICER HAD
TOLD YOU THAT ANOTHER
EMPLOYEE HAD BEEN SELECTED?
"A. ABSOLUTELY NOT.
"Q. DID YOU TELL MR. NEILSON THAT MR. HALFACRE HAD ASKED YOU IF YOU
WANTED TO GO TO
NASHVILLE?
"A. I POSSIBLY TALKED TO MR. NEILSON. I HEARD HIS TESTIMONY
EARLIER. THERE IS A
PROBABILITY THAT I DID TALK TO MR. NEILSON AND OTHER EMPLOYEES.
"I DID NOT TELL THEM THAT MR. HALFACRE CAME TO ME BECAUSE THAT DID
NOT HAPPEN.
"I DID PROBABLY TELL THEM THAT THERE WAS A DISCUSSION BETWEEN MYSELF,
MR. HALFACRE AND
MR. CHAMBERS.
"Q. DID YOU DISCUSS WITH MR. NEILSON THE PROBABILITY OF YOUR BEING
SELECTED?
"A. THAT IS QUITE POSSIBLE. I DON'T REMEMBER THE EXACT
CONVERSATION. I REMEMBER TALKING
TO MR. NEILSON. I REMEMBER TALKING TO OTHER PEOPLE ABOUT IT.
"I STATED TO DIFFERENT PEOPLE THAT INDEED I WOULD LIKE TO GO TO
NASHVILLE OR ARKANSAS, BUT
IT WAS QUITE OBVIOUS SINCE I WAS THE NEW GUY-- THE NEW KID ON THE
BLOCK THAT THERE WAS VERY
LITTLE CHANCE OF ME STANDING IN FRONT OF THE OTHER TWO PEOPLE-- THE
OTHER TWO VOLUNTEERS THAT
WANTED TO GO AND MOST PROBABLY WOULD GO LOGICALLY.
"Q. WAS THIS ASSUMPTION ON YOUR PART THAT YOU HAD LITTLE CHANCE
BASED SOLELY ON YOUR OWN
LOGIC AND YOUR OWN OPINIONS?
"A. THAT WAS MY OWN OPINION AND THE RUMORS THROUGH THE OFFICE, YES
MA'AM." (TR. 896-986).
MR. JOACHIM TESTIFIED THAT NEITHER MR. CHAMBERS, HIS SUPERVISOR, NOR
MR.HALFACRE HAD EVER COME TO HIM TO ASK THAT HE VOLUNTEER FOR NASHVILLE;
THAT HE HAD GONE TO MR. CHAMBERS, WHEN HE FIRST HEARD TALK ABOUT A
NASHVILLE OFFICE, SOMETIME BETWEEN DECEMBER, 1977, AND FEBRUARY, 1978,
AND TOLD MR. CHAMBERS THAT HE WAS INTERESTED IN GOING TO NASHVILLE;
THAT MR. CHAMBERS STATED,
" . . . THAT THEY WERE PROBABLY AWAY (SIC) FROM HAVING THE OFFICE
CREATED OR APPROVED OF
ANYTHING, BUT THAT HE WOULD KEEP MY-- THE FACT THAT I HAD OFFERED TO
RELOCATE THERE IN MIND IF
AND WHEN THE SELECTION PROCESS STARTED." (TR. 868) WITH RESPECT TO
HIS CONVERSATIONS WITH MR. VERA, MR. JOACHIM TESTIFIED AS FOLLOWS:
"A. YES, ON SEVERAL OCCASIONS, OSCAR (VERA) ASKED ME IF I HAD EVER
BEEN ASKED BY ANYBODY IN
MANAGEMENT AND SPECIFICALLY ASKED ME IF MR. HALFACRE HAD EVER ASKED
ME IF I WANTED TO GO TO
NASHVILLE.
"THE ONLY TIME I REMEMBER MR. HALFACRE EVER VIOLATING THE TERMS OF
THE EXECUTIVE ORDER IS
ONCE HE ASKED ME IF I WANTED TO GO TO OKLAHOMA CITY. HE WASN'T
OFFERING ME A JOB THERE. HE
JUST ASKED ME IF I WAS INTERESTED IN OKLAHOMA CITY.
"HE SAID IF YOU ARE, I SUGGEST YOU SUBMIT A CUSTOMS FORM 67 TO
HEADQUARTERS BECAUSE THEY
ARE ABOUT TO OPEN AN AIR BRANCH THERE, AND THIS WAS EARLIER ON BEFORE
THE LAST EFFORT TO GET
NASHVILLE ON THE ROAD TO GET IT STARTED.
"Q. THIS ASKING ABOUT OKLAHOMA CITY DIDN'T INVOLVE NASHVILLE IN ANY
WAY?
"A. NO, NO. I SAID THAT HE HAD ASKED ME IF MR. HALFACRE HAD EVER
POLLED ME, AND THE ONLY
TIME THAT MR. HALFACRE HAD EVER POLLED ME WAS ABOUT OKLAHOMA CITY.
"AS A MATTER OF FACT, I DON'T BELIEVE I TOLD MR. VERA THAT HE HAD
POLLED ME AT THAT TIME, I
DON'T RECALL FOR SURE.
"Q. DID YOU TELL MR. VERA DURING YOUR CONVERSATION THAT MR.
HALFACRE HAD POLLED YOU?
"A. THAT'S WHAT I SAY. I DON'T REMEMBER IF I TOLD HIM ABOUT THE
OKLAHOMA CITY THING.
"OTHER THAN THAT, HE HAD NEVER POLLED ME. HE HAD NEVER ASKED ME.
"Q. DID YOU TELL MR. VERA THAT MR. HALFACRE HAD ASKED YOU IF YOU
WERE INTERESTED IN GOING
TO NASHVILLE?
"A. I TOLD MR. VERA THAT MR. HALFACRE HAD NEVER ASKED ME IF I WAS
INTERESTED IN GOING TO
NASHVILLE." (TR. 872-873).
THE DIRECT TESTIMONY OF MESSRS. LUM AND JOACHIM WAS FULLY SUPPORTED
BY THE DIRECT TESTIMONY OF MESSRS. HALFACRE AND CHAMBERS. I FOUND THE
TESTIMONY OF EACH OF THESE WITNESSES CREDIBLE; BUT EQUALLY IMPORTANT
THEIR TESTIMONY WAS FULLY CONSISTENT WITH: (A) THE ABSENCE OF ANY
TESTIMONY BY ANY PILOT OR AIR OFFICER THAT HE WAS SOLICITED, ASKED, OR
POLLED BY ANY MEMBER OF, OR REPRESENTATIVE OF, MANAGEMENT CONCERNING THE
PROJECTED NASHVILLE DUTY STATION (MR. HALFACRE'S PROPOSAL HAD
CONTEMPLATED A PILOT AND TWO AIR OFFICERS); BY THE ADMITTED KNOWLEDGE
OF ALL EMPLOYEES OF THE PROJECTED NASHVILLE DUTY STATION, INCLUDING AIR
OFFICER WADE'S ADVISING AIR OFFICER LONG IN EL PASO, PRIOR TO HIS
TRANSFER TO NEW ORLEANS; (C) THE FACT THAT, NOTWITHSTANDING THE
REGION'S DECISION TO PROCEED WITH ESTABLISHMENT OF THE NASHVILLE DUTY
STATION, THE REGION'S DECISION WAS NO MORE THAN A STRONG RECOMMENDATION
TO WASHINGTON; AND (D) AT THE TIME MR. HALFACRE MET WITH MR. VERA TO
DISCUSS STAFFING /8/ OF THE PROJECTED NASHVILLE STATION, RESPONDENT HAD
TAKEN NO ACTION TO MAN THE STATION. INDEED, HEADQUARTERS HAD NOT
APPROVED THE PROJECTED STATION AND, IN FACT, SUBSEQUENTLY DISAPPROVED
THE REGION'S RECOMMENDATION TO ESTABLISH THE STATION SO THAT STAFFING
NEVER BECAME A REALITY.
COMPLAINANT ASSERTS THAT MR. HALFACRE'S PRE-SELECTION OF MR. LONG WAS
SHOWN BY THE CIRCUMSTANCES SURROUNDING MR. LONG'S FAMILY'S MOVE FROM EL
PASO TO NEW ORLEANS. MR. LONG TRANSFERRED FROM EL PASO TO NEW ORLEANS
IN MARCH, 1978, BUT DID NOT BRING HIS FAMILY TO NEW ORLEANS UNTIL JUNE
22, 1978, WHEN HE AND HIS FAMILY STAYED AT A MOTEL. FROM THIS,
COMPLAINANT CONCLUDED THAT MR. LONG HAD BROUGHT HIS FAMILY TO NEW
ORLEANS ONLY FOR A TEMPORARY STOPOVER PENDING HIS PRE-ARRANGED TRANSFER
TO NASHVILLE. FURTHER SUPPORT WAS GIVEN TO COMPLAINANT'S CONTENTIONS BY
MR. LONG'S PROTEST, ON JUNE 23, 1978, OF THE DELAY OF ACTION ON THE
NASHVILLE OFFICE. HOWEVER, MR. LONG'S TESTIMONY, WHICH I FOUND WHOLLY
CREDIBLE, REMOVED ENTIRELY THE INFERENCES DRAWN BY COMPLAINANT. THUS,
MR. LONG TESTIFIED THAT HIS FAMILY HAD REMAINED IN EL PASO IN ORDER THAT
HIS CHILDREN COMPLETE THE SCHOOL YEAR THERE, WHICH DID NOT END UNTIL THE
END OF MAY; THAT IN APRIL, 1978, HIS WIFE HAD COME TO NEW ORLEANS ON A
HOUSE HUNTING TRIP AND THEY HAD BEEN PLACED ON A WAITING LIST FOR A
HOUSE NEAR BELLE CHASSE; THAT FROM MAY 22 TO JUNE 16, 1978, HE ATTENDED
ADVANCED C.P.O SCHOOL IN WASHINGTON, D.C.; THAT UPON COMPLETION OF THE
TRAINING COURSE HE RETURNED TO NEW ORLEANS ON JUNE 16 AND ON JUNE 17 HE
HAD FLOWN TO EL PASO AND HAD DRIVEN HIS FAMILY TO NEW ORLEANS, ARRIVING
EARLY IN THE MORNING ON JUNE 22; THAT HE WAS AWARE THAT THERE WAS A
TARGET DATE OF JULY 1 FOR THE NASHVILLE OFFICE; THAT HE BELIEVED HE HAD
A GOOD CHANCE OF GOING TO NASHVILLE; THAT HE DECIDED TO STAY AT A MOTEL
TEMPORARILY UNTIL IT WAS DETERMINED WHETHER HE WOULD BE SELECTED TO GO
TO NASHVILLE, A DECISION DICTATED IN LARGE PART BY THE FACT THAT IT
WOULD SAVE HIM A GOOD DEAL OF MONEY SINCE RENTAL OF AN APARTMENT WOULD
HAVE REQUIRED SOME LEASE COMMITTMENT; THAT HE ANTICIPATED A DECISION
SHORTLY AS IS WHETHER HE WOULD BE SELECTED TO GO TO NASHVILLE, IN WHICH
CASE, IF SELECTED, HE WOULD MOVE TO NASHVILLE AND IF HE WERE NOT
SELECTED HE WOULD LOCATE HIS FAMILY IN NEW ORLEANS; THAT WHEN HE READ
MR. VERA'S LETTER (COMPLAINT'S EXH. 8), POSTED BY MR. VERA ON THE
BULLETIN BOARD ON THE MORNING OF JUNE 23, HE WAS UPSET BECAUSE " . . .
THERE HAD BEEN DISCUSSIONS-- OPEN DISCUSSIONS AND TALK AROUND THE OFFICE
FOR SEVERAL MONTHS THAT THE UNION OR THE MANAGEMENT OR A COMBINATION OF
BOTH COULD HAVE GOTTEN TOGETHER AND TAKEN CARE OF WHATEVER BUSINESS THEY
HAD TO NEGOTIATE." (TR. 813); THAT HE TALKED TO MR. VERA AND ASKED HIM
WHAT WAS GOING ON AND MR. VERA TOLD HIM IT WAS MANAGEMENT'S FAULT FOR
NOT HAVING TAKEN CARE OF THIS PROBLEM EARLIER AND HE HAD TOLD MR. VERA
HE HAD HIS FAMILY IN A MOTEL AND DIDN'T LIKE BEING IN A STATE OF
INDECISION WHETHER TO SETTLE THEM IN NEW ORLEANS PERMANENTLY OR IN THE
EVENT THAT HE DID GO TO NASHVILLE, GO UP THERE; THAT HE WAS GIVEN THE
UNDERSTANDING THAT THE NASHVILLE MATTER WOULD DRAG ON FORM SOME LONGER
PERIOD OF TIME; AND THAT, THE FOLLOWING DAY, JUNE 24, HE HAD SOUGHT AN
APARTMENT AND MOVED HIS FAMILY AND HIS FURNITURE INTO AN APARTMENT A DAY
OR SO LATER, HAVING STAYED IN THE MOTEL ABOUT FOUR DAYS. WHEN THE
HOUSE, FOR WHICH THEY HAD BEEN PLACED ON THE WAITING LIST IN APRIL,
BECAME AVAILABLE THE LONGS MOVED INTO THE HOUSE AT 3836 ACCACIA LANE,
HARVEY, LOUISIANA.
THE RECORD IS CLEAR THAT MR. LONG APPROACHED MANAGEMENT AND
VOLUNTEERED FOR NASHVILLE. MR. LONG HAD BEEN AN AIR OFFICER SINCE 1975
AND, BASED ON HIS QUALIFICATIONS, BELIEVED THAT HE HAD A GOOD CHANCE OF
BEING SELECTED TO GO TO NASHVILLE. WHEN MR. LONG FIRST SPOKE TO
MR.HALFACRE AND EXPRESSED INTEREST IN GOING TO NASHVILLE, MR. HALFACRE
TOLD HIM "I'LL KEEP IT IN MIND" (TR. 809). IN MAY, BEFORE LEAVING FOR
THE TRAINING COURSE, MR. LONG AGAIN SPOKE TO MR. HALFACRE AND TOLD HIM
OF HIS STRONG DESIRE TO GO TO NASHVILLE AND MR. LONG STATED THAT MR.
HALFACRE,
" . . . ADVISED ME HE FELT I HAD A GOOD CHANGE OF GOING, AND
PERSONALLY, I DID
TOO." (TR. 810)
* * * *
"Q. DID MR. HALFACRE TELL YOU YOU HAD BEEN SELECTED?
"A. NO, HE DID NOT.
"Q. DID MR. HALFACRE PROMISE YOU THAT YOU WOULD BE SELECTED?
"A. NO. ALL HE TOLD ME WAS HE THOUGHT I HAD A GOOD CHANCE OF GOING,
AND HAD I BEEN
SELECTED, I WOULD HAVE LEFT MY FAMILY IN EL PASO UNTIL MAKING
ARRANGEMENTS TO GO TO
NASHVILLE. I WOULDN'T HAVE BROUGHT THEM DOWN WITH ME WHEN I DID."
(TR. 811) MR. HALFACRE'S STATEMENT, WHEN PRESSED BY MR. LONG, THAT MR.
LONG HAD A GOOD CHANCE OF GOING TO NASHVILLE DID NOT CONSTITUTE
SELECTION OF MR. LONG AND MR. LONG, CLEARLY, DID NOT CONSTRUE THE
STATEMENT AS IMPLYING EITHER THAT HE HAD BEEN SELECTED OR AS A PROMISE
THAT HE WOULD BE SELECTED. WHERE, AS HERE, AT THE TIME OF THE
CONVERSATION THERE WERE ONLY THREE AIR OFFICERS IN THE ASSUMED SELECTION
BASE THEN INTERESTED IN GOING TO NASHVILLE, ANY COMMENT AS TO ANY ONE OF
THE THREE WOULD NOT HAVE IMPLIED PRE-SELECTION AND ESPECIALLY IN THIS
TRUE OF MR. LONG, THE MOST EXPERIENCED OF THE THREE, SINCE TWO SLOTS
WERE ENVISIONED AS BEING FILLED FROM AMONG THREE ELIGIBLE AIR OFFICERS.
THE RECORD IS EQUALLY CLEAR THAT MR. WADE ALSO VOLUNTEERED FOR
NASHVILLE AND HE TESTIFIED THAT NO MEMBER OF MANAGEMENT HAD EVER TOLD
HIM THAT HE HAD BEEN SELECTED FOR THE NASHVILLE DUTY STATION. WHEN
ASKED IF IT WAS HIS OPINION AT ANY TIME THAT HE HAD BEEN SELECTED FOR
NASHVILLE, MR. WADE RESPONDED:
"A. WELL, I HAD BEEN TOLD BY SEVERAL EMPLOYEES IN THE OFFICE THAT
KEPT SAYING I WAS GOING
TO NASHVILLE. I JUST TOLD THEM WHEN I SAW THE PAPERWORK, I'D BELIEVE
IT, AND I'VE NEVER SEEN
ANY PAPERWORK AND NEVER BEEN TOLD BY MANAGEMENT.
"Q. WERE ANY OF THESE EMPLOYEES MEMBERS OF MANAGEMENT?
"A. NO." (TR. 882).
I AM AWARE OF, AND HAVE GIVEN CAREFUL CONSIDERATION TO, THE TESTIMONY
OF MR. NEILSON THAT MESSRS. LONG AND WADE TOLD HIM THAT MR. HALFACRE HAD
SELECTED THEM TO GO TO NASHVILLE, AND THE TESTIMONY OF MR. WHITE THAT
MR. CHAMBERS, A SUPERVISOR, TOLD HIM THAT LONG AND WADE HAD BEEN
SELECTED TO GO TO NASHVILLE. HAVING EXAMINED THIS TESTIMONY, TOGETHER
WITH ALL OTHER TESTIMONY, I DO NOT FIND EITHER MR. NIELSEN'S TESTIMONY,
THAT LONG AND WADE TOLD HIM THAT MR. HALFACRE HAD SELECTED THEM TO GO TO
NASHVILLE, OR MR. WHITE'S TESTIMONY, THAT CHAMBERS TOLD HIM LONG AND
WADE HAD BEEN SELECTED TO GO TO NASHVILLE, PERSUASIVE AND, ACCORDINGLY,
DO NOT CREDIT THEIR TESTIMONY IN THIS REGARD. I DO NOT DOUBT THAT MR.
LONG, FOR EXAMPLE, MAY HAVE TOLD MR. NEILSON THAT HE WAS CONFIDENT THAT
HE AND WADE WOULD BE SELECTED AND/OR THAT MR. HALFACRE HAD TOLD HIM THAT
HIS, LONG'S, CHANCES OF BEING SELECTED WERE GOOD; BUT, VIEWING THE
TESTIMONY OF JOACHIM, LUM, WADE, LONG, AND HALFACRE I DO NOT BELIEVE
THAT LONG OR WADE TOLD MR. NEILSON THAT MR. HALFACRE HAD SELECTED THEM
TO GO TO NASHVILLE. IN ANY EVENT, WHETHER MR. HALFACRE HAD SELECTED
LONG AND WADE IS GOVERNED BY WHAT MR. HALFACRE DID, OR SAID, AND, ON THE
BASIS OF THE DIRECT TESTIMONY OF MESSRS. LONG, WADE AND HALFACRE, MORE
FULLY SET FORTH HEREINABOVE, TOGETHER WITH ALL OTHER EVIDENCE AND
TESTIMONY, I CONCLUDE THAT MR. HALFACRE DID NOT TELL EITHER MR. LONG OR
MR. WADE THAT THEY HAD BEEN SELECTED, NOR DID HE PROMISE EITHER THAT HE
WOULD BE SELECTED, TO GO TO NASHVILLE. AS TO MR. WHITE'S TESTIMONY; I
DO NOT QUESTION THAT HE, " . . . HAD NO DOUBT IN MY MIND WHAT EMPLOYEES
WOULD BE SENT UP THERE" (TR. 579) OR THAT HE BELIEVED WADE AND LONG
WOULD BE THE TWO AIR OFFICERS GOING TO NASHVILLE; BUT I DO NOT FIND
CONVINCING HIS TESTIMONY THAT MR. CHAMBERS TESTIFIED THAT HE DID NOT
KNOW WHO WAS GOING; THAT HE HAD TOLD THE VARIOUS AIR OFFICERS WHO HAD
ADVISED HIM THAT THEY WERE INTERESTED IN GOING TO NASHVILLE THAT HE DID
NOT KNOW HOW THE SELECTION WOULD BE MADE, " . . . WHETHER IT WOULD BE A
VOLUNTARY METHOD OR WHETHER THEY'D HAVE TO CUT AN ANNOUNCEMENT" (TR.
854-855); AND THIRD, THAT, AS STATED HEREINABOVE, NO SELECTION OF WADE
AND LONG HAD BEEN MADE.
FINALLY, COMPLAINANT RELIES ON MR. THORNTON'S TESTIMONY THAT A MR.
WALTER HILL, IDENTIFIED BY MR. THORNTON AS A LABOR MANAGEMENT
REPRESENTATIVE IN CUSTOMS HEADQUARTERS, WASHINGTON, D.C. HAD TOLD HIM IN
A TELEPHONE CONVERSATION ON JUNE 30, 1978 THAT,
" . . . MR. CHARLIE FISHER HAD DECIDED TO CANCEL THE OPENING OF THE
NASHVILLE OFFICE, BASED
UPON THE FACT THAT MR. HALFACRE HAD ACTED PREMATURELY IN PRESELECTING
TWO INDIVIDUALS TO GO,
AND THAT BASED UPON THAT, THE FACT THAT CMR HAD NOT HAD INPUT INTO IT
THAT HE WAS GOING TO
CANCEL THE MOVE." (TR. 639-640) MR. HILL DID NOT TESTIFY. REGIONAL
COMMISSIONER FISHER DID TESTIFY AND STATED, INTER ALIA, THAT HE DID NOT
RECALL THE NAME WALTER HILL; THAT HE HAD NEVER RECEDED FROM HIS
RECOMMENDATION THAT THE NASHVILLE DUTY STATION BE OPENED, " . . . I
NEVER INTENDED TO CANCEL THE PROPOSAL, AND I STILL HAVE, IN MY OWN,
MIND, NOT DECIDED THAT I DIDN'T WANT IT" (TR. 780), THAT THE PROJECTED
NASHVILLE DUTY STATION WAS CANCELLED BY WASHINGTON. JOINT EXHIBITS 38
AND 40 SHOW THAT THE PROPOSED NASHVILLE DUTY STATION WAS DISAPPROVED BY
VERNON V. HANN, ASSISTANT COMMISSIONER, OPERATIONS, ON JULY 17, 1978, AS
A MATTER OF POLICY. THERE IS NOTHING THAT SUGGESTS THAT MR. HANN'S
DECISION WAS MOTIVATED IN ANY MANNER BY ANYTHING THAT MAY, OR MAY NOT,
HAVE OCCURRED WITH REGARD TO STAFFING ACTION. IN VIEW OF MR. FISHER'S
TESTIMONY AND THE UNCONTROVERTED POLICY DETERMINATION BY MR. HANN, I
ACCORD NO PROBATIVE WEIGHT TO THE STATEMENT ATTRIBUTED TO MR. HILL. FOR
REASONS STATED ABOVE, I CONCLUDE THAT RESPONDENT DID NOT CONDUCT A POLL,
OR SURVEY, OF EMPLOYEES; OR SELECT, OR DESIGNATE, ANY EMPLOYEE FOR
TRANSFER TO NASHVILLE.
FOR ALL OF THE FOREGOING REASONS, I FIND THAT COMPLAINANT HAS NOT
SHOWN, BY A PREPONDERANCE OF THE EVIDENCE, THAT RESPONDENT VIOLATED
SECTIONS 19(A)(6) AND (1) OF THE ORDER IN CASE NO. 64-4251(CA), BY
POLLING EMPLOYEES CONCERNING A PROPOSED DUTY STATION IN NASHVILLE,
TENNESSEE, OR BY SELECTING, OR PROMISING TO SELECT, ANY EMPLOYEE FOR
ASSIGNMENT TO THE PROPOSED DUTY STATION IN NASHVILLE, TENNESSEE, AND,
ACCORDINGLY, THE COMPLAINT IN CASE NO. 64-4251 (CA) IS HEREBY
DISMISSED.
RECOMMENDED ORDER
A. HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6)
OF THE ORDER IN CASE NO. 64-4248(CA) AS ALLEGED IN THE COMPLAINT, AN
APPROPRIATE ORDER DESIGNED TO REMEDY THE UNFAIR LABOR PRACTICE FOUND
THEREIN IS SET FORTH HEREINAFTER.
B. HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6)
OF THE ORDER IN CASE NO. 64-5252 (CA), BUT ONLY IN RESPECT TO ITS
UNILATERAL SOLICITATION OF RECOMMENDATIONS FROM UNIT EMPLOYEES
REPRESENTED BY AN EXCLUSIVE REPRESENTATIVE, AN APPROPRIATE ORDER
DESIGNED TO REMEDY THE UNFAIR LABOR PRACTICE FOUND THEREIN IS SET FORTH
HEREINAFTER; AND, HAVING FOUND THAT RESPONDENT DID NOT OTHERWISE
VIOLATE SECTIONS 19(A)(1) OR (6) OF THE ORDER, ALL OTHER PORTIONS OF THE
COMPLAINT IN CASE NO. 64-4252(CA), AND SPECIFICALLY INCLUDING THE
ALLEGATIONS WITH RESPECT TO THE ASSERTED IMPROPER IMPLEMENTATION OF A
REVISED WEEKLY ACTIVITY REPORT FORM ON JULY 7, 1978, ARE HEREBY
DISMISSED.
C. HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) OR
(6) OF THE ORDER AS ALLEGED IN CASE NO. 64-4250(CA), THE COMPLAINT IN
CASE NO. 64-4250(CA) IS HEREBY DISMISSED.
D. HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) OR
(6) OF THE ORDER AS ALLEGED IN CASE NO. 64-4251(CA), THE COMPLAINT IN
CASE NO. 64-4251(CA) IS HEREBY DISMISSED.
E. PURSUANT TO PARAGRAPHS A AND B, THE FOLLOWING ORDER IS
RECOMMENDED TO REMEDY THE UNFAIR LABOR PRACTICES FOUND IN CASE NOS.
64-4248(CA) AND 64-4252(CA):
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS THEREUNDER, 29 C.F.R. SECTION
203.26(B); AND SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS,
5 C.F.R. CHAPTER XIV, SUBCHAPTER A, FED. REG. VOL. 44, NO. 147, JULY 30,
1979, P. 44741, THE AUTHORITY HEREBY ORDERS THAT UNITED STATES CUSTOMS,
REGION V, NEW ORLEANS, LOUISIANA, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED PAST PRACTICE,
AS IT EXISTED PRIOR TO MAY 31, 1978, OF REPORTING AIRCRAFT
DISCREPANCIES, INCLUDING DISCUSSION OF SUCH DISCREPANCIES WITH AIRCRAFT
MECHANICS, WITHOUT FIRST BARGAINING IN GOOD FAITH WITH NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 168, THE EXCLUSIVE REPRESENTATIVE OF
ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO THE FULL EXTENT
CONSONANT WITH LAW.
(B) UNILATERALLY SOLICITING RECOMMENDATIONS FROM EMPLOYEES OF ITS AIR
SUPPORT BRANCH FOR CHANGES OF THE WEEKLY ACTIVITY REPORTS OR WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE AIR SUPPORT BRANCH WHEN
SUCH EMPLOYEES ARE REPRESENTED EXCLUSIVELY BY THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 168, OR ANY OTHER LABOR ORGANIZATION.
(C) 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 ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) WITHDRAW THE MEMORANDUM ISSUED BY MR. RAYMOND E. HALFACRE, CHIEF,
AIR SUPPORT BRANCH, AND DATED MAY 31, 1978, ENTITLED POLICY ON REPORTING
MAINTENANCE DISCREPANCIES AND DUTIES OF SUPPLYMEN".
(B) POST AT ITS FACILITY AT NEW ORLEANS, LOUISIANA, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
REGIONAL COMMISSIONER, UNITED STATES CUSTOMS, REGION V, 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, INCLUDING, BUT NOT LIMITED
TO, SUCH BULLETIN BOARDS AND OTHER PLACES IN THE AIR SUPPORT BRANCH.
THE REGIONAL COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT
SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 4, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY ALTER OR CHANGE THE ESTABLISHED PAST
PRACTICE, AS IT EXISTED PRIOR TO MAY 31, 1978, OF REPORTING AIRCRAFT
DISCREPANCIES, INCLUDING DISCUSSION OF SUCH DISCREPANCIES WITH AIRCRAFT
MECHANICS, WITHOUT FIRST BARGAINING IN GOOD FAITH WITH NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 168, THE EXCLUSIVE REPRESENTATIVE OF
OUR EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO THE FULL EXTENT
CONSONANT WITH LAW.
WE WILL WITHDRAW THE MEMORANDUM, ISSUED BY MR. RAYMOND E. HALFACRE,
CHIEF, AIR SUPPORT BRANCH, AND DATED MAY 31, 1978, ENTITLED "POLICY ON
REPORTING MAINTENANCE DISCREPANCIES AND DUTIES OF SUPPLYMEN."
WE WILL NOT UNILATERALLY SOLICIT RECOMMENDATIONS FROM EMPLOYEES OF
THE AIR SUPPORT BRANCH FOR CHANGES OF THE WEEKLY ACTIVITY REPORT OR WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES OR OTHER MATTERS AFFECTING
GENERAL WORKING CONDITIONS OF EMPLOYEES IN THE AIR SUPPORT BRANCH WHEN
SUCH EMPLOYEES ARE REPRESENTED EXCLUSIVELY BY THE NATIONAL TREASURY
EMPLOYEES UNION AND NTEU CHAPTER 168, OR ANY OTHER LABOR ORGANIZATION.
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.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . . REGIONAL COMMISSIONER
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, DALLAS REGION,
WHOSE ADDRESS IS: ROOM 450, OLD POST OFFICE BUILDING, BRYAN & ERVAY
STREETS, DALLAS, TEXAS 75221
--------------- FOOTNOTES$ ---------------
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASES ARE DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASES HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ CONSOLIDATION WITHIN THE MEANING OF RULE 42(A) OF THE RULES OF
CIVIL PROCEDURE IS AUTHORIZED ONLY "WHEN ACTIONS INVOLVING A COMMON
QUESTION OF LAW OR FACT ARE PENDING BEFORE THE COURT . . . . "
CONSOLIDATION UNDER THE ORDER HAS MORE FREQUENTLY MEANT SIMPLY THAT TWO
OR MORE CASES INVOLVING THE SAME, OR EVEN RELATED, PARTIES ARE
CONSOLIDATED FOR THE PURPOSE OF HEARING ALL OF THE DESIGNATED CASES BY A
SINGLE JUDGE BEGINNING ON A SCHEDULED DATE. NEVERTHELESS, THE ASSISTANT
SECRETARY, IN OFFICE OF ECONOMIC OPPORTUNITY, REGION V, CHICAGO,
ILLINOIS, A/SLMR NO. 334, 3 A/SLMR 668(1973), HELD THAT BECAUSE SECTION
203.15 OF THE REGULATION (LATER SECTION 203.16) IN SPECIFYING THE DUTIES
OF THE ADMINISTRATIVE LAW JUDGE DID NOT INCLUDE THE AUTHORITY TO SEVER
CASES WHICH HAD BEEN CONSOLIDATED FOR HEARING BY THE ASSISTANT REGIONAL
DIRECTOR, THE ADMINISTRATIVE LAW JUDGE IMPROPERLY SEVERED A CASE BY
ISSUING A SEPARATE REPORT AND RECOMMENDATION. ALTHOUGH THE REGIONAL
DIRECTOR IN THIS CASE DID NO MORE THAN CONSOLIDATE THE CASE FOR THE
PURPOSE OF HEARING, WITH FULL AWARENESS OF THE DECISION IN A/SLMR NO.
334, SUPRA, A SINGLE RECOMMENDED DECISION AND ORDER IS ISSUED COVERING
THE FOUR QUITE SEPARATE AND DISTINCT CASES IN WHICH THE ONLY COMMON
FACTORS ARE THAT THE SAME PARTIES ARE INVOLVED IN EACH CASE AND THAT
EACH COMPLAINT ALLEGES A VIOLATION OF SECTION 19(A)(1) AND (6) OF THE
ORDER.
THE INTERIM RULES AND REGULATIONS BY SPECIFICALLY PROVIDING IN
SECTION 2423.18(K) THAT THE ADMINISTRATIVE LAW JUDGE MAY " . . . ORDER
PROCEEDING CONSOLIDATED OR SEVERED . . . . " (FED. REG. VOL. 44, NO.
147, JULY 30, 1979) WILL OBVIATE THIS UNCERTAINTY IN THE FUTURE.
/3/ ALTHOUGH NEITHER PARTY HAS MADE REFERENCE TO IT, THE SIDE FOR THE
NARRATIVE STATEMENT CONTAINS A LINE FOR "SUPERVISOR", WHICH WOULD
APPEAR, ON THE SURFACE, TO CONTEMPLATE THAT THE SUPERVISOR WOULD SIGN
THE REPORT. PREVIOUSLY, THE NARRATIVE STATEMENT HAD, SIMPLY, CONSISTED
OF A MEMORANDUM ADDRESSED TO THE SUPERVISORY AIR OFFICER (COMP. EXH. 2,
RES. EXH. 2).
/4/ MR. VERA TESTIFIED THAT HE WAS IN THE OFFICE ON THE MORNING OF
JULY 7 BUT THEN WAS OUT MOST OF THE DAY, UNTIL NEAR QUITTING TIME, AND
THAT WHEN HE RETURNED TO THE OFFICE HE FOUND MR. HALFACRE'S MEMORANDUM
POSTED ON THE BULLETIN BOARD.
/5/ MR. THORNTON TESTIFIED THAT HE DID NOT RECEIVE JOINT EXHIBIT 15;
HOWEVER, HE TESTIFIED THAT HE RECEIVED ATTACHMENT 2 TO JOINT EXHIBIT 13,
WHICH IS IDENTICAL TO JOINT EXHIBIT 15 EXCEPT THAT IT DID NOT SHOW THE
NUMBER "3400-02", AND HE FURTHER TESTIFIED THAT ON DECEMBER 13, 1977, HE
NEGOTIATED CONCERNING POLICY STATEMENT 3400-02.
/6/ COMPLAINTANT'S REQUEST TO AMEND THE COMPLAINT, MADE FOR THE FIRST
TIME IN ITS BRIEF (PAGES 118-119), TO ASSERT AN ADDITIONAL VIOLATION OF
SECTION 19(A)(1) OF THE ORDER, WITH RESPECT TO SOLICITATION OF AN
EMPLOYEE FOR A POSITION IN OKLAHOMA CITY, IS DENIED FOR THE FOLLOWING
REASONS: FIRST, NO SUCH ALLEGATION WAS CONTAINED IN THE CHARGE OR IN
THE COMPLAINT AND TO PERMIT AMENDMENT OF THE COMPLAINT WITHOUT NOTICE OR
OPPORTUNITY TO DEFEND, AND AFTER THE CLOSE OF THE HEARING, WOULD VIOLATE
PROCEDURAL DUE PROCESS, PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO, A/SLMR NO. 878, 7 A/SLMR 639(1977), AND NOT
HAVING BEEN ALLEGED IN THE CHARGE OR COMPLAINT, IS NOT PROPERLY RAISED
IN THIS PROCEEDING. DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE,
REGION IV, MIAMI, FLORIDA, A/SLMR NO. 739, 6 A/SLMR 599, 600(1976).
SECOND, THE STATEMENT RELIED UPON DOES NOT STATE WITH SUFFICIENT
CERTAINTY THE DATE OF THE ASSERTED SOLICITATION, AS REQUIRED BY SECTIONS
203.2(A)(3) AND 203.3(A)(3) OF THE REGULATIONS. THIRD, IF THE ALLEGED
SOLICITATION OCCURRED, AS THE WITNESS TESTIFIED, " . . . EARLIER ON
BEFORE THE LAST EFFORT TO GET NASHVILLE ON THE ROAD TO GET IT STARTED"
(TR. 872), SUCH ALLEGED SOLICITATION NECESSARILY OCCURRED PRIOR TO
JANUARY 30, 1978, THE DATE MR. HALFACRE INITIATED THE "LAST EFFORT" TO
OBTAIN AUTHORIZATION FOR THE NASHVILLE OFFICE, AND, EVEN IF IT WERE
ASSUMED TO HAVE OCCURRED, WAS VERY POSSIBLY MORE THAN SIX MONTHS PRIOR
TO THE DATE THE CHARGE WAS FILED, JUNE 23, 1978, WHICH UNDERSCORES THE
DEFICIENCY OF THE ALLEGATION AS TO DATE OF OCCURRENCE. DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, HOUSTON AREA OFFICE--
SOUTHWEST REGION, HOUSTON, TEXAS, A/SLMR NO. 126, 2 A/SLMR NO. 126, 2
A/SLMR 47(1972). IN ANY EVENT, FROM WHATEVER DATE THE ASSERTED
SOLICITATION IS MEASURED, IT IS OBVIOUS THAT NO CHARGE WAS FILED WITHIN
SIX MONTHS OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE AND
THAT A CHARGE, HAD ONE BEEN FILED AT THE TIME OF THE HEARING, WOULD HAVE
BEEN TIME BARRED. AS THIS PROCEEDING AROSE UNDER THE EXECUTIVE ORDER,
IT IS GOVERNED BY THE PROVISIONS OF THE ORDER AND APPLICABLE REGULATIONS
THEREUNDER, RATHER THAN THE STATUTE; NEVERTHELESS, CASES ARISING UNDER
THE STATUTE ARE GOVERNED BY THE PROVISION OF SECTION 7118(A)(4)(A) WHICH
PROVIDES, IN PART, THAT "NO COMPLAINT SHALL BE ISSUED BASED ON ANY
ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED MORE THAN 6 MONTHS BEFORE
THE FILING OF THE CHARGE" AND THERE IS NO BASIS WHATEVER THAN EVEN
SUGGESTS, AS PROVIDED IN SECTION 7118(A)(4)(B), THAT ANY PERSON WAS
PREVENTED FROM FILING A CHARGE DURING THE 6 MONTH PERIOD BY REASON OF
ANY FAILURE OF RESPONDENT TO PERFORM A DUTY OWED TO THE PERSON
SOLICITATED OR THAT THERE WAS ANY CONCEALMENT WHICH PREVENTED DISCOVERY
OF THE ALLEGED UNFAIR LABOR PRACTICE DURING THE 6 MONTH PERIOD.
RESPONDENT'S MOTION FOR PERMISSION TO FILE REPLY BRIEF, ETC., SERVED
ON OCTOBER 12, 1979, AND RECEIVED BY THIS OFFICE ON OCTOBER 16, 1979, AS
IT ADDRESSES THE ABOVE ISSUE WHICH WAS RAISED FOR THE FIRST TIME IN
COMPLAINANT'S BRIEF, IS GRANTED AND RESPONDENT'S REPLY BRIEF IS HEREBY
RECEIVED.
/7/ AIR OFFICER RICHARD JOACHIM FOR PERSONAL REASONS, IN MID-MAY,
1978, INFORMED A MEMBER OF MANAGEMENT THAT HE WAS NO LONGER INTERESTED
IN GOING TO NASHVILLE. PRIOR TO THE MAY 18, 1978, DECISION THAT INITIAL
STAFFING SHOULD BE TWO AIR OFFICERS, AT LEAST ONE PILOT HAD ALSO
INFORMED MANAGEMENT OF HIS INTEREST IN GOING TO NASHVILLE.
/8/ COMPLAINANT WOULD DRAW THE INFERENCE THAT MR. HALFACRE'S PURPOSE
IN MEETING WITH MR. VERA WAS TO SECURE AGREEMENT TO REGULARIZE WHAT
COMPLAINANT CONTENDS WAS MR. HALFACRE'S PRE-SELECTION OF WADE AND LONG;
HOWEVER, THE PROBATIVE TESTIMONY IS TO THE CONTRARY. NOT ONLY DID
MESSRS. WADE, LONG, HALFACRE AND CHAMBERS TESTIFY TO THE CONTRARY; BUT
MR. LUM CREDIBLY TESTIFIED THAT HE ARRIVED AT THE CONCLUSION, WHICH HE
DISCUSSED WITH OTHER PEOPLE, THAT HE, LUM, WOULD PROBABLY NOT GO TO
NASHVILLE BECAUSE HE WAS ". THE NEW KID ON THE BLOCK THAT THERE WAS VERY
LITTLE CHANCE OF ME STANDING IN FRONT OF THE OTHER TWO PEOPLE-- THE
OTHER TWO VOLUNTEERS THAT WANTED TO GO AND PROBABLY WOULD GO LOGICALLY."
WHETHER THE ASSUMPTION WAS RIGHT OR WRONG, IT WAS, OBVIOUSLY ASSUMED BY
EMPLOYEES, GENERALLY, INCLUDING LUM, WADE, LONG AND JOACHIM, AS WELL AS
BY SUPERVISOR HALFACRE, THAT THE PROJECTED NASHVILLE STATION WOULD BE
STAFFED FROM NEW ORLEANS' EXISTING ROSTER.
THE ONLY INFERENCE I CAN REASONABLY DRAW IS THAT MR. HALFACRE, WHEN
ADVISED THAT STAFFING OF THE PROJECTED NASHVILLE STATION WAS A
NEGOTIABLE MATTER, SINCE HE HAD NOT PREVIOUSLY DISCUSSED THE MATTER WITH
COMPLAINANT, MET WITH MR. VERA . . . WE WOULD PROBABLY ASK FOR
VOLUNTEERS FROM THE FOUR AIR OFFICERS WHO WERE ASSIGNED TO THE NEW
ORLEANS AIR BRANCH AND THAT WE WOULD PROBABLY PICK TWO AIR OFFICERS FROM
HOWEVER MANY VOLUNTEERS WE HAD. AND AT THAT TIME, I HAD RECEIVED
VOLUNTARY REQUESTS, SO TO SPEAK, FROM THREE AIR OFFICERS THAT WOULD LIKE
TO GO IF THERE WAS AN OFFICE INDEED OPENED IN NASHVILLE." (TR. 647-648).
OBVIOUSLY, MR. HALFACRE ASSUMED A NEW ORLEANS AIR BRANCH ELIGIBILITY
BASE, AND SELECTION OF TWO AIR OFFICERS FROM THE VOLUNTEERS; BUT
SELECTION FROM VOLUNTEERS WAS CONSISTENT WITH WHATEVER THE ELIGIBILITY
BASE. IN ANY EVENT, I CAN NOT, AND DO NOT, DRAW ANY INFERENCE FROM MR.
HALFACRE'S STATEMENT THAT ANY PRE-SELECTION HAD BEEN MADE.
AT THE TIME MR. HALFACRE AND MR. VERA MET, THERE IS NOTHING TO
INDICATE THAT EITHER OF THEM HAD ANY KNOWLEDGE OF MR. THORNTON'S LETTER,
DATED JUNE 16, 1978, REQUESTING NEGOTIATIONS ON THE STAFFING OF THE
PROJECTED NASHVILLE OFFICE. MR. VERA LEARNED OF MR. THORNTON'S REQUEST
AFTER HIS MEETING WITH MR. HALFACRE AND VERY PROPERLY ADVISED MR.
HALFACRE THAT INFORMAL NEGOTIATIONS AT THE LOCAL LEVEL WOULD BE
INAPPROPRIATE.