16:0703(101)CA - Defense Logistics Agency, Defense Depot Tracy, Tracy, CA and Laborers' International Union Local 1276 -- 1984 FLRAdec CA
[ v16 p703 ]
16:0703(101)CA
The decision of the Authority follows:
16 FLRA No. 101
DEFENSE LOGISTICS AGENCY
DEFENSE DEPOT TRACY
TRACY, CALIFORNIA
Respondent
and
LABORERS' INTERNATIONAL UNION,
LOCAL 1276, AFL-CIO
Charging Party
Case No. 9-CA-946
DECISION AND ORDER
The Chief Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Chief Judge's Decision, and the
Respondent filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority has reviewed the rulings of the Chief Judge made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Chief Judge's
Decision and the entire record, in the circumstances of this case the
Authority hereby adopts the Chief Judge's findings and conclusion that
the behavior of employee Thomas constituted flagrant misconduct which
was beyond the ambit of protected activity. Therefore, the Authority
adopts the Chief Judge's recommended Order. See Veterans Administration
Medical Center, Bath, New York and Veterans Administration, Washington,
D.C., 12 FLRA No. 107 (1983) at 17 of the Judge's decision; Department
of Housing and Urban Development, San Francisco Area Office, San
Francisco, California, 4 FLRA 460 (1980); Department of Treasury,
Internal Revenue Service, Memphis Service Center, 16 FLRA No. 100
(1984).
ORDER
IT IS ORDERED that the complaint in case No. 9-CA-946 be, and it
hereby is, dismissed.
Issued, Washington, D.C., November 30, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEFENSE LOGISTICS AGENCY,
DEFENSE DEPOT TRACY,
TRACY, CALIFORNIA
Respondent
and
LABORERS' INTERNATIONAL UNION,
LOCAL 1276, AFL-CIO
Charging Party
Case No. 9-CA-946
Nancy Pritikin, Esq.
Malachy T. Coghlan, Esq.
For the General Counsel
Marlin D. Tolbert
For the Charging Party
Richard H. Kaake, Esq.
For the Respondent
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This proceeding arises under the Federal Service Labor-Management
Relations Statute (5 U.S.C. Sec. 7101 et seq) and the final rules and
Regulations issued thereunder (5 C.F.R. 2423.14 et seq). It is based on
a Complaint issued by the Regional Director of Region IX, Federal Labor
Relations Authority. The Complaint alleged that Respondent violated
Section 7116(a)(1) and (5) by expelling the Union's designated
representative from a meeting at which a formal discussion was taking
place, and violated Section 7116(a)(1) and (2) by suspending that
employee for 10 days because of his protected activity at that meeting.
Respondent counters that the employee was properly expelled and
disciplined for insubordination and disorderly conduct. /1/
A formal hearing was held in Tracy, California, on October 22, 1981.
All parties were afforded full opportunity to examine witnesses,
introduce evidence and file briefs. Upon the entire record, including
my observation of the witnesses and their demeanor, I make the following
findings of fact, conclusions of law and recommended order.
Findings of Fact
1. The Union has at all material times been the exclusive bargaining
representative of a unit of employees at the Tracy Depot, including
those in Warehouse 29, where the alleged unfair labor practice occurred.
2. The record is bereft of any evidence respecting the bargaining
relationship and climate at Tracy. That is, aside from what is to be
inferred from Respondent's conduct in expelling Shop Steward Ronald
Thomas from a "grievance" meeting and in disciplining him for allegedly
insubordinate and disorderly behavior at that meeting, there is no
evidence of hostility toward the Union or of unlawful conduct toward
Union adherents. On the other hand, it has been shown that Thomas was
suspended for one day, a year prior to these events, for
insubordination. A charge of profanity in that incident was apparently
dropped. He was not a Steward at that time.
3. In December 1980, employee Robin Taberna, Shop Steward Ronald
Thomas and Chief Steward Bill Arnolfo visited the Acting Commander of
the Depot about Taberna's dissatisfaction with his job performance
evaluation. A discussion ensued about allegedly general dissatisfaction
with working conditions in Warehouse 29, and Taberna invited or
suggested that the Acting Commander visit the Warehouse and listen to
the complaints of employees. At that or a subsequent meeting, the
Acting Commander said that he would have someone look into the matter.
The assignment was given to Captain Edward Roethe, USNR, who was
Director of Storage and Transportation, a position two steps down from
the Commander. Captain Roethe decided to look into the situation, by
meeting with the employees as Taberna had suggested, and to do so
outside the presence of the two immediate supervisors of the employees
in Warehouse 29. It was his purpose to elicit "grievances" or
complaints and concerns of employees and to provide feedback to them.
The Union's rule in this approach is not clear, although it would appear
to have acquiesced in, if not more positively assented to, this
procedure. Respondent acknowledges that the meetings conducted by
Roethe were formal discussions, and appropriate notice was provided the
Union in each instance.
4. The first meeting was held on January 29, and attended by all
employees in Warehouse 29. It appears that a wide-ranging discussion
took place, that it was not well structured, and that it got to the
point of being almost out-of-hand with frequent interruptions and use of
demeaning language. Roethe promised to check out a number of points
raised by employees and get back to them. /2/
5. Leaderman Gary Weitz (a nonsupervisor) and several other
employees, including Claudia Westman, sent a letter to Captain Roethe
apologizing for what had occurred at the meeting. As Westman testified,
they were embarrassed by Thomas' actions toward Roethe, and wanted him
to understand that not all Warehouse employees agreed with Thomas and
not all of them conducted themselves as he did. I relate this matter
for purposes of setting the stage for what followed at the next meeting,
and not as any finding that Thomas was guilty of misconduct on that
occasion. The matter was not extensively litigated, and it is not
possible to decide whether Thomas was intemperate and disrespectful, or
whether the authors of the letter were toadying. Suffice it to say that
the meeting became so chaotic that Roethe determined that it was
necessary to lay down ground rules to be observed at the next one.
6. On the afternoon of February 4, Roeth's secretary notified the
Chief Steward of the meeting that day. She recalls that he merely said
"Ok." He recalls that he said he might be unable to attend, but would
have a steward there, conceding that he may not have mentioned a name.
He then alerted Thomas. While there is no evidence that Roethe was
notified that Thomas was the designated Union representative, I find his
status a Shop Steward for Warehouse 29 gave him such status absent
designation of somebody else.
7. There are as many versions of what transpired at the February 4
meeting as there were witnesses. The eight called by the General
Counsel differ unanimously only in one respect from the six called by
Respondent: they assert that Thomas told Roethe that he was at the
meeting both in capacity as a Union representative and as an employee,
whereas Respondent's witnesses report that he said he was speaking as an
employee. In other respects their views are not sharply different as to
the essential facts, which establish that there was an angry
confrontation between Roethe and Thomas. My sense of what happened is
based on a composite of all witnesses, but has significant support in
the testimony of witnesses for the General Counsel, particularly that of
Rick Juarez, who had a more complete and detailed recollection of the
incident than other witnesses.
8. The meeting was understood by all to be a "bitch" session at
which employees would have an opportunity to get their feelings off
their chests so that the Captain could understand the attitude of
employees in the Warehouse. As noted, the two immediate supervisors
against whom such complaints had been and would be registered, were not
in attendance. Before all participants had arrived, Roeth was in a
side-conversation with several employees. In answer to their questions
about the possibility of reprisals for speaking freely, he was
reassuring them that they should feel free to speak out and make their
complaints or concerns known to him. Roeth then began to lay down
ground rules for the meeting, noting that things occurred at the first
meeting which he did not want to see repeated: loud talking, talking
out of turn and in a way which demeans other speakers. During this
discussion, Thomas was already present and Gary Weitz came in.
According to Juarez, Thomas "kind of jumped on his case" about the
apology Weitz and others had offered Roethe. Thomas said that Weitz
should not apologize for him, and that if there was any need for an
apology he could do it for himself, and called Weitz a "suck ass and
things like that." /3/ Weitz apparently had little, if anything, to say:
as Juarez reported, "Garry took it, there was really no harsh exchange
between them," although they were getting rather loud. Roeth, pointing
to Thomas and Weitz, said that this was an example of the type of thing
he did not want happening again.
9. Roethe then attempted to repeat the ground rules for an orderly
and constructive session: that there was to be no loud talking, that
speakers were to be allowed to finish their statements without
interruption or demeaning remarks, and that he was not going to allow
this meeting to get out of hand as has the last one. Again, according
to Juarez, "Ron turned to him and then Ron and Captain Roethe kind of
started getting into it, /4/ and Captain Roethe was telling Ron, if you
are not going to conduct yourself in a manner that is going to be
acceptable to this meeting, I am going to have to ask you to leave. Ron
said, I am going to talk the way I want to talk. Captain Roethe goes,
well, are you speaking as an employee or a union steward? Ron said,
kind of threw his hands up and he was talking the whole time, and
Captain Roethe had a hard time getting words in edgewise, because Ron
kind of just looked around and he said, well, I am both, he said I am a
concerned employee; this is a bitch session. He said, people have a
right to say what they want, and this was the purpose of the whole
meeting. At that point, Captain Roethe said, I am going to ask if you
are going to conduct yourself in a civil manner or I am going to have to
ask you to leave. Ron said, I am going to talk the way I want to talk.
He just kept saying that over and over, I am going to talk the way I
want to talk."
10. Roethe then left the meeting and returned with two supervisors
of the Warehouse. Again, according to Juarez, he said to supervisor
Crutchfield that he had given Thomas a direct order to leave, and Thomas
responded that Roethe did not give him a direct order. Crutchfield told
Thomas to shut up, and Roethe told Thomas that he had asked him whether
he was going to conduct himself in a civil manner. Thomas, again,
replied that he was going to talk the way he wanted to talk. Roethe
then gave Thomas a direct order to leave and, as Thomas departed, told
Crutchfield that he wanted disciplinary action taken.
11. Thomas' account of this episode is that he was exchanging a few
words with Gary Weitz when the Captain said "Ok, let's get the meeting
started," and laid down some ground rules, "such as we don't respect our
supervisors and that he is not going to go for any more loud talking and
this meeting he is not to let it get out of hand." Roethe then asked for
comments, the men were momentarily silent, and Thomas spoke up, out of
his concern as Shop Steward, that the ground rules were going to clam
everybody up. His contribution to the discussion was: "I am going to
talks the way I want to talks. Roethe then asked if he was saying that
as a union representative or an employee and told him to quit
interrupting the meeting, or leave the room. Thomas replied that he was
not interrupting the meeting, he was only saying he would talk as he
wanted to talk and that he thought the meeting was for everybody to get
gripes and complaints off their chests. Roethe then left the meeting,
returned with the supervisors, and expelled him. Only one other
witness, Taberna, recalled that the Captain had finished presenting the
ground rules and asked for comments before getting into the altercation
with Thomas, and none testified that the Captain's ground rules included
a command that the employees respect their supervisors, as opposed to a
rule that all show respect for whoever was speaking by not interrupting
him.
12. In contrast to Thomas' testimony, and far closer to that of
Juarez, was that of Randy Fowler, a former shop steward called by the
General Counsel. According to Fowler the Captain entered the room
during an argument between the two employees, told them that was enough
and called the meeting to order. He proceeded to set down ground rules:
"there won't be no loud talking or interrupting the fellow employee,
whoever is talking, if they want to talk, they could wait til he gets
finished." Thomas then said he would talk the way he wanted to talk and
Roethe replied that "if he was going to be loud and talk out of turn he
would be dismissed out of the meeting." Thomas responded that he would
talk the way he wanted to talk, and Roethe told him that if he could not
be orderly he could leave the room. Thomas repeated that he would talk
the way he wanted to talk, and Roethe left the meeting to summon the
supervisors. /5/
13. The meeting then got underway in its substantive aspects.
Thomas, in the meantime reported by telephone to Chief Steward Arnolfo
that he had been thrown out of the meeting. Arnolfo immediately caught
a cab to Warehouse 29, and while receiving a report from Thomas on the
dock, was seen through a window by Roethe, who went out and asked him to
come in. Roethe then introduced him as Chief Steward, recapped for
Arnolfo the discussion which had taken place and invited his
participation.
14. On February 19, Thomas received from Roethe a Notice of Proposed
Suspension. It recited that Thomas had repeatedly ignored instructions
to conduct himself in an orderly manner by making disruptive comments,
and that, after stating he was present as an employee rather than as a
Union Steward, explicitly refused to obey a direct order to stop
disrupting the meeting or leave the room. Such conduct, was described
as "disorderly conduct, insubordination and failure to obey a direct
order" warranting suspension for 10 working days. On March 16, the
Commander of the Depot issued his Notice of Decision, concluding that
the reasons given by Roethe were fully supported by the evidence, that
Thomas' conduct constituted insubordinate behavior and that such
conduct, considered in conjunction with his earlier suspension for
insubordination and use of abusive language, warranted the proposed
10-day suspension.
Discussion and Conclusions
Two fundamental questions are posed:
(1) Whether the expulsion of Thomas from a formal discussion was an
unlawful deprivation of the Union's right to be represented at such
meeting by a representative of its own choosing, in violation of Section
7116(a)(1) and (5);
(2) Whether the discipline imposed on Thomas constituted interference
with, as well as discrimination based upon, his exercise of the
protected right to participate in a formal discussion, in violation of
Section 7116(a)(1) and (2).
Essential to an affirmative answer to either question is a finding
that Thomas did not engage in misconduct so flagrant as to constitute a
forfeiture of the rights which would otherwise attend his participation
in such a meeting.
The February 4 meeting was one of several designed to elicit
grievances or gripes about employment conditions with a view toward
their resolution. It is clear that Respondent complied with its
obligation under Section 7114(a)(2)(A) to provide the Union with an
opportunity to be represented at such formal discussion by giving
appropriate notice to the Chief Steward. Respondent's argument that the
session was not a grievance meeting in the technical sense of that term
(Section 7103(a)(9)) is beside the mark.
Counsel for the General Counsel attempts to place this case within
the mold or rubric of those requiring that a balance be struck between
an employer's right to maintain order and respect for supervisors and
managers, and the employee's right to engage in protected activity in an
aggressive manner which permits leeway for impulsive behavior, including
conduct which is intemperate, insulting, and even insubordinate. Such
cases recognize that the desired free and frank exchange of views often
comes into play in controversies which are highly charged and emotional,
and that the purpose of promoting industrial peace through the
resolution of such conflicts would be subverted or nullified were
employees placed at risk for conduct which would, in other
circumstances, constitute insubordinate or unacceptable conduct. /6/
While private sector cases are to be considered for purposes of
guidance only, it is useful to observe, as did the Assistant Secretary,
/7/ that the Supreme Court of the United States held in Old Dominion
Branch No. 496, National Association of Letter Carriers, AFL-CIO v.
Austin, 86 LRRM 2740, 2743 that:
. . . the same tolerance for union speech which has long
characterized our labor relations in the private sector ("favoring
uninhibited, robust and wide-open debate") has been carried over
under the Executive Order.
There is no indication that the Statute was meant to narrow the latitude
the Order accorded employees and Union representatives in volatile
collective bargaining and grievance situations.
One trusts, or at least hopes, that federal managers are by now
acquainted with the fact that the Statute shields employees from
discipline for conduct connected with labor relations controversies
which need not be tolerated if divorced from that context. The United
States Court of Appeals for the Fifth Circuit stated the doctrine well
in a case where a Union representative was reprimanded and suspended for
one day, because of "abusive and insubordinate language directed at
supervisors," based upon his calling his supervisor a liar in a
grievance meeting. /8/ The Court there said:
. . . whether the remarks were by some standard "justified" is
not here controlling. (They) were pertinent to a discussion of
the grievance under consideration . . . . (As) long as the
activities engaged in are lawful and the character of the conflict
is not indefensible in the context of the grievance involved, the
employees are protected under . . . the Act. Neither do we think
the language /9/ used by (the employee) was so opprobrious as to
carry them "beyond the pale" of the Act's protection. It has been
repeatedly observed that passions run high in labor disputes, and
that epithets and accusations are commonplace. Grievance meetings
arising out of disputes . . . are not calculated to create an aura
of total peace and tranquillity where compliments are lavishly
exchanged . . . . (We) do not condone the conduct . . . but we do
not feel that the interests of collective bargaining will be
served by the external imposition of a rigid standard of proper
and civilized behavior.
Of central importance to our view of the case, is the nature of
the protected activity involved. (The employees) were
participating in a grievance meeting, which by its very nature
requires a free and frank exchange of views, and where bruised
sensibilities may be the price exacted for industrial peace. As
the Board noted, a grievance proceeding is not an audience,
conditionally granted by a master to his servants, but a meeting
of equals-- advocates of their respective positions. (The
supervisor) was not assailed with abuse on the floor of the plant
where he stood as a symbol of the Company's authority; the
characterization of the untruth came while he was appearing as a
Company advocate during a closed meeting with Union
representatives.
So much for general principles. Here, no discussion or encounter
took place which would call for their application. This is not a case
in which an employee, in the heat of a discussion about a grievance,
lost his cool and uttered words which sounded in insubordination or
disrespect for authority and which would be wholly inappropriate at the
work place if management is to maintain order and discipline on the job.
Although the words here were used in what was, in effect, a general
grievance session at which employees must be regarded as equal partners
rather than subordinates, Thomas never addressed a single gripe or
grievance. Perhaps he was, as claims, motivated by a desire, as
Steward, to provide an example of outspokeness to employees he feared
would clam up under Roethe's ground rules. But whatever his purpose, he
chose to challenge ground rules which, according to all witnesses except
himself (and possible Taberna), were simply designed to assure that all
who wished to speak had opportunity to do so, and to finish what they
had to say without interruption. In essence, Roethe said that the
meeting was to be conducted with dignity and with respect for one
another, presumably including himself. Such would seem to be minimal
rules for a productive and coherent discussion in which everyone could
participate, and the need for them had been disclosed by events at the
January 29 meeting. Certainly, no gag rule was imposed, but rather one
designed to facilitate orderly and constructive discussion.
Nevertheless, whether he was still smarting from his side discussion
with Weitz and the whole subject of the annoying letter of apology
related to his conduct at the last meeting, or from Roethe's use of his
loud and profane words as an example of the kind of unacceptable
behavior which was to be avoided with ground rules, Thomas loudly made
it clear that he would speak as he wished to speak. When assured that
he could say what he wanted to say, but that he should "keep it down,"
he repeated that he would "talks the way I want to talks." He repeatedly
and defiantly-- without adding anything of substance to the discussion
stated that he would ignore the ground rules. It is not clear to me
whether such defiance was aimed at the kind of language he would employ,
how loudly he would talk or at the request that he show respect for
others. Even his own testimony indicates that he had nothing to say
which was pertinent to any grievance, only that he would talk as he
wished to talk and that he thought the purpose of the meeting was to
enable everybody to get gripes and complaints off their chests. No
other witness indicates that Roethe was not anxious to conduct just such
a meeting, in which everyone would feel free to speak up without
interruption or insult. Indeed, he had excluded the immediate
supervisors to foster a free and open exchange. If anything, this
record suggests that Thomas did no more than voice an unfocused
rebelliousness, an unwillingness to be subject to any rules of
disciplined discourse.
The General Counsel contends that Thomas "legitimately responded to
Captain Roethe's ground rules in order to encourage employee discussion,
. . . that Respondent's own purpose in conducting . . . the meeting was
so that those very matters which employees would be fearful or reluctant
to express at the work place could be discussed with Captain Roethe . .
. (and that) it should not now be heard to complain that Thomas
attempted to do just that." I would find that argument altogether
persuasive were there any suggestion in this record that Thomas was
speaking to ground rules which would squelch a free and frank discussion
of grievances. There is none, but to the contrary, convincing evidence
that Roethe desired an open and orderly discussion, and one which would
avoid the disorder of the last one. In no way does Thomas explain how
these ground rules would restrain discussion. The evidence
overwhelmingly shows they were meant to encourage respect for whoever
had the floor to the end that the discussions would embrace everyone and
be orderly and constructive. Thomas did no more than loudly, defiantly
and repeatedly state, without provocation, that his participation would
not be so circumscribed. Nothing pertinent, appropriate or useful was
said respecting grievances or the method for their presentation.
I do not think it necessary to decide whether Thomas flatly and
insubordinately refused a direct order that he leave the meeting as the
reprimand letter recites. It is clear that he refused, at least,
requests that he either agree to be bound by the rules of the discussion
or leave. It is also clear that Roethe was by now angry, and it is
understandable that he considered Thomas to be insubordinate.
Whether or not Thomas was in attendance as a Union agent as well as
an employee, I conclude that is behavior amply meets the standard of
flagrant misconduct. Particularly in the light of there being no
rational discussion of either a grievance or its manner of presentation
underway, and no semblance of provocation, or other mitigating factors,
his conduct was in the circumstances indefensible. The reasons for the
doctrine which affords employees broad latitude in grievance discussions
are absent here, and the facts are in essence closer to garden-variety
insubordination on the plant floor. The Union's right to be represented
at such formal discussions was therefore forfeited, if he was in fact
its designated representative. /10/
For the same reasons, I would find that his right, as an employee,
not to be subjected to discipline for outspoken and even disrespectful
conduct which occurs in connection with the presentation of a grievance,
but which falls short of inexcusable, did not even attach here. If it
did, it was forfeited by a plane and obstinate refusal to accept
reasonable rules for the conduct of the meeting. This was no example of
uninhibited, robust and wide open debate. Nor is it an example of a
discussion getting out of hand in the heat of the moment. It is,
instead, a very deliberate flouting of the employer's initial effort to
impose rudimentary standards of appropriate conduct for the meeting so
as to maintain a modicum of order and respect.
I have discussed the absence of union animus, as well as the presence
of evidence of an opposite disposition-- i.e. inviting the Chief Steward
to what was left of the meeting at the time he was observed. Such
matter is, of course, not relevant to the question whether a Section
7116(a)(1) violation occurred, as discipline imposed for the exercise of
a protected right would be unlawful in the presence of innocent
motivation. Such evidence would however be necessary to a Section
7116(a)(2) violation, which would here require proof of a purpose to
discriminate in connection with conditions of employment in order to
discourage membership in the Union, absent a conclusion that the action
taken against Thomas was so inherently destructive of Section 7102
rights as to render evidence of intent unnecessary. /11/ Thus, even
were I persuaded that the discipline was unlawful, I would not find the
requisite motivation for a Section 7116(a)(2) violation.
Accordingly, I recommend that the Complaint be dismissed in its
entirety.
JOHN H. FENTON
Chief Administrative Law Judge
Dated: November 3, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Complaint also alleged the expulsion was violative of Section
7116(a)(2), and the suspension was violative of (a)(5). No such
contention was advanced at hearing or on brief. I take it such views
were abandoned, if they were, not, in fact, inadvertently made.
/2/ It is likely that Thomas was the Union representative at that
meeting. He did not address the point. Chief Steward Arnolfo did not
remember whether he designated Thomas. Roethe expressed his belief that
Thomas was there as the Union representative.
/3/ In fact, I find, on the basis of Roethe's testimony, that Thomas
called Weitz a "motherf-- " several times. I credit neither Thomas nor
Weitz about this exchange. According to Thomas, whose account was very
sketchey, they merely exchanged a few words. Unaccountably, Weitz
appeared to have no recollection of any discussion of the apology and no
recall of vulgarities. No witness gave a truly opposing version to that
of Roethe, except, perhaps for Ms. Westman who, with evident
embarrassment said that a familiar four-letter word encompassed in the
above was used.
/4/ I conclude, from a composite of the testimony, that it was at
this point that Thomas told him that he would talk the way he wanted to
talk.
/5/ I have recounted these varying versions at perhaps too much
length, in part because my credibility determinations are based on the
inherent probabilities, as well as the source of the competing versions,
rather than demeanor observation which virtually insulates findings from
reversal on review. As already noted, my findings come largely out of
the mouth of the General Counsel's witnesses, and given the heat and
anger which attended the episode, as well as the completeness and detail
of his recall, I think Rick Juarez's version is the most accurate one.
/6/ The Federal Labor Relations Authority set forth its standards for
such cases in Department of the Navy, Pudget Sound Naval Shipyard, 2
FLRA 54. Judge Garvin Lee Oliver sets forth a very useful collection of
such cases, from both the private and public sectors, in Department of
the Air Force, Scott AFB, 5-CA-1129 and 1131, OALJ-82-84.
/7/ Small Business Administration, Central Office, 6 A/SLMR 158.
/8/ Crown Central Petroleum Corp. v. NLRB, 74 LRRM 2855, 2860.
/9/ Employee, angry and shouting to supervisor, about what supervisor
had said on another occasion, said-- There will be a reckoning place for
you and all the lies you people tell, and I am not going to put up with
those . . . damn lies.
/10/ Should this matter be deemed relevant for purposes of review, I
would find, as noted, that he was present as the Union representative.
He was so designated, and was as Shop Steward the only agent present.
/11/ See Crown Central Petroleum Corporation v. NLRB, 576 F.2d 724;
74 LRRM 2855, 2857.