[ v02 p492 ]
02:0492(68)CA
The decision of the Authority follows:
2 FLRA No. 68
NAVAL AIR STATION
JACKSONVILLE, FLORIDA
Respondent
and
NAVAL AIR LODGE 1630, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
Complainant
Assistant Secretary
Case No. 42-4571(CA)
DECISION AND ORDER
ON AUGUST 7, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
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
(44 F.R. 44741, JULY 30, 1979). 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(B) 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 THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 42-4571(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
IN THE MATTER OF
NAVAL AIR STATION,
JACKSONVILLE, FLORIDA /2/
RESPONDENT
AND
NAVAL AIR LODGE 1630, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO
COMPLAINANT
ELBERT C. NEWTON
LABOR RELATIONS ADVISOR
SOUTHERN FIELD DIVISION OFFICE, OCP
BOX 88, NAVAL AIR STATION
JACKSONVILLE, FLORIDA 32212
FOR THE RESPONDENT
THEODORE A. VANDERZYDE
GRAND LODGE REPRESENTATIVE
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, AFL-CIO
1300 CONNECTICUT AVENUE, NW.
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON APRIL 30, 1979
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, THE
ATLANTA, GEORGIA REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
JUNE 14 AND 15, 1979 AT JACKSONVILLE, FLORIDA.
THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREIN CALLED THE ORDER). A COMPLAINT WAS FILED ON OCTOBER 12, 1978 BY
NAVAL AIR LODGE 1630, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS, AFL-CIO (HEREIN CALLED THE COMPLAINANT) AGAINST NAVAL
AIR STATION, JACKSONVILLE, FLORIDA (HEREIN CALLED THE RESPONDENT). IT
ALLEGED THAT, EFFECTIVE AUGUST 4, 1978, FRANK COSENTINO, AN EMPLOYEE AND
UNION STEWARD, WAS TERMINATED FOR HIS ACTIVITY ON BEHALF OF THE
COMPLAINANT IN VIOLATION OF SECTIONS 19(A)(1)(2), (4) AND (6) OF THE
ORDER.
SUBSEQUENT THERETO THE COMPLAINANT AMENDED THE ORIGINAL COMPLAINT.
THE SECOND AMENDED COMPLAINT, DATED NOVEMBER 20, 1978, ALLEGED A
VIOLATION BY RESPONDENT OF 19(A)(1), (2) AND (4) FOR HAVING SEPARATED
COSENTINO ON AUGUST 4, 1978 BY REASON OF HIS ACTIONS AS A UNION STEWARD
ON BEHALF OF COMPLAINANT. THE REGIONAL DIRECTOR'S NOTICE OF HEARING
RECITED THAT THE HEARING WOULD BE HELD WITH REFERENCE TO SECTIONS
19(A)(1) AND (2) OF THE ORDER. /3/
RESPONDENT SUBMITTED A RESPONSE TO THE COMPLAINT, DATED NOVEMBER 3,
1978, IN WHICH IT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE.
IT AVERRED THEREIN THAT COSENTINO WAS TERMINATED FOR UNSATISFACTORY WORK
PERFORMANCE RATHER THAN FOR ANY DISCRIMINATORY REASON UNDER THE ORDER.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING "FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE COMPLAINANT UNION HAS BEEN THE
BARGAINING REPRESENTATIVE OF ALL NONSUPERVISORY UNGRADED EMPLOYEES AT
THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA. THE SAID EMPLOYEES WERE
COVERED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES WHICH,
BY ITS TERMS, WAS EFFECTIVE ON JUNE 9, 1977 FOR A PERIOD OF TWO YEARS.
2. ON SEPTEMBER 28, 1977 THE EMPLOYER HEREIN HIRED FRANK COSENTINO
AS A WG-9, PROBATIONARY /4/ EMPLOYEE. COSENTINO, WHO WAS EMPLOYED AS A
CARPENTER, HAD PREVIOUSLY BEEN ENGAGED IN THE RESIDENTIAL CONSTRUCTION
BUSINESS IN FLORIDA SINCE 1957. HE HAD ALSO BEEN EMPLOYED FOR 90 DAYS
AS A SHEET METAL TRAINEE BY THE NAVAL AIR REWORK STATION.
3. COSENTINO WAS ASSIGNED TO THE PUBLIC WORKS DIVISION OF THE
EMPLOYER HEREIN WHERE, AT THE TIME OF HIS EMPLOYMENT, THERE WERE
EMPLOYED 6 OTHER JOURNEYMEN CARPENTERS AS WELL AS TWO CARPENTERS,
ROBERT
VAN LIEU AND FRANK BIALEK, WHO WERE ALSO PROBATIONARY EMPLOYEES.
4. SINCE 1975 WILLIAM H. PRITCHETT HAS BEEN, AND STILL IS, THE
WOODCRAFTSMAN FOREMAN IN CHARGE OF THE CARPENTER SHOP IN THE PUBLIC
WORKS DEPARTMENT, MAINTENANCE DIVISION. PRITCHETT SUPERVISED 12
EMPLOYEES, INCLUDING COSENTINO, AND THESE INDIVIDUALS WERE CLASSIFIED AS
EITHER CARPENTERS, CEMENT AND BLOCK MASONERS, CONCRETE WORKERS,
UPHOLSTERERS, OR FLOOR TILERS.
5. ON DECEMBER 15, 1977 COSENTINO WAS APPOINTED TEMPORARY STEWARD IN
THE AFORESAID DEPARTMENT. SUBSEQUENTLY, ON JANUARY 30, 1978, /5/, BAYNE
C. TEAGUE, IN-PLANT CHAIRMAN OF THE UNION HEREIN, NOTIFIED MANAGEMENT IN
WRITING THAT COSENTINO WOULD BE INSTALLED AS STEWARD IN THE PUBLIC WORKS
DEPARTMENT. RESPONDENT WAS NOTIFIED IN WRITING ON MAY 17 THAT, AS OF
MAY 18, COSENTINO WOULD SERVE AS ACTING CHIEF STEWARD THEREAT; AND ON
JUNE 19 NELSON F. VOELKER, PRESIDENT OF COMPLAINANT UNION, ADVISED
RESPONDENT IN WRITING THAT COSENTINO WOULD BE THE CHIEF STEWARD IN THE
SAID DEPARTMENT.
6. EMPLOYED AT THE PUBLIC WORKS AND SUPPLY SYSTEM DIVISIONS ARE 22
STEWARDS AND 2 CHIEF STEWARDS. OF THIS NUMBER, THERE ARE 10-11 STEWARDS
WHO WORK IN THE PUBLIC WORKS DEPARTMENT. THE STEWARDS REPRESENT
EMPLOYEES IN RESPECT TO GRIEVANCES OR COMPLAINTS INITIATED BY THE
WORKERS. THEY CONFER WITH THE FIRST LINE SUPERVISOR AND IF THE PROBLEMS
ARE NOT RESOLVED, THEY ARE HANDLED BY THE CHIEF STEWARD AT THE DIVISION
LEVEL; UNRESOLVED GRIEVANCES WOULD THEN BE HANDLED BY THE IN-PLANT
CHAIRMAN FOR THE UNION AND THE COMMANDING OFFICER OR HIS REPRESENTATIVE.
7. BETWEEN JANUARY AND JULY COSENTINO HANDLED ABOUT 8-10 GRIEVANCES
OR COMPLAINTS FILED BY EMPLOYEES IN THE PUBLIC WORKS DEPARTMENT
REGARDING WORKING CONDITIONS. HE REPRESENTED, AS STEWARD OR CHIEF
STEWARD OF THE UNION, THESE INDIVIDUALS IN RESPECT TO SAID GRIEVANCES.
8. TESTIMONY BY COSENTINO'S SUPERVISOR, PRITCHETT, REFLECTS THAT HE
WAS DISSATISFIED WITH THIS EMPLOYEE'S WORK PERFORMANCE AT THE OUTSET OF
HIS EMPLOYMENT. PRITCHETT BEGAN TAKING NOTES OF COSENTINO'S WORK
ASSIGNMENTS AND HIS DEFICIENCIES IN DECEMBER, 1977 AFTER ANOTHER
CARPENTER SOLICITED THE SUPERVISOR'S OPINION OF COSENTINO. IN VIEW OF
THE POOR QUALITY OF THE LATTER'S WORK, AS TESTIFIED TO BY PRITCHETT, THE
FOREMAN MADE WRITTEN NOTATIONS OF COSENTINO'S PERFORMANCE. HE
TESTIFIED, FURTHER THAT SINCE THE OTHER TWO PROBATIONARY EMPLOYEES WERE
FINE CARPENTERS, HE DID NOT MAKE NOTES OF THEIR WORK RECORD.
9. THE CRITICISMS LEVELLED AGAINST COSENTINO BY THE FOREMAN, IN
RESPECT TO THE TASKS PERFORMED BY THE EMPLOYEE, INVOLVED THE FOLLOWING:
(A) AN INITIAL ASSIGNMENT GIVEN TO COSENTINO INVOLVED HIS INSTALLING
DOOR LOCKS AT BUILDING 590. PRITCHETT CLAIMS IT TOOK THE EMPLOYEE 45
MINUTES TO INSTALL ONE LOCK, WHICH WAS AN EXCESSIVE AMOUNT OF TIME.
(B) ON DECEMBER 22 OR 23, 1977 COSENTINO WAS ASSIGNED TO INSTALL
ONE-HALF INCH SOUND PROOFING MATERIAL ON A SHEETROCK WALL AT BUILDING
101D. ACCORDING TO THE FOREMAN, COSENTINO HAD DIFFICULTY INSTALLING
METAL STRIPS TO HOLD THE JOINTS OF THE MATERIAL TOGETHER AND COULD NOT
HIT ON THE STUDS. PRITCHETT EXPLAINED TO COSENTINO THAT THE FIRST PIECE
HAD TO BE CUT TO ACCOMPLISH THE TASK. HE RETURNED LATER AND DISCOVERED
THE PIECE HAD NOT BEEN CUT SO THAT THE STRIPS DID NOT FIT RIGHT AROUND
THE DOORWAY.
(C) ON JANUARY 3, COSENTINO, WHILE WORKING ON A TRUCK BED, CHECKED
OUT A DRILL MOTOR AND OTHER TOOLS. THE DRILL MOTOR WAS LEFT ON THE BED,
AND COSENTINO DISCOVERED ON THE FOLLOWING MORNING THAT THE TOOL WAS
GONE. THE FOREMAN TESTIFIED THE MOTOR SHOULD HAVE BEEN TURNED BACK IN
TO THE TOOL ROOM. IT WAS NEVER LOCATED.
(D) ON JANUARY 27 COSENTINO AND ANOTHER CARPENTER, ANTHRAM GREEN,
WERE AT BUILDING 103 REPLACING SIDE GATES ON A TRUCK. THE MEN MEASURED
EACH BOARD SEPARATELY AND CUT THE MATERIAL FOR EACH ONE. PRITCHETT TOLD
THEM TO SPEED UP PRODUCTION, THAT THEY COULD CUT 5-6 PIECES WITH THE
SAME LENGTH AT ONE TIME. COSENTINO OBJECTED TO DOING THE TASK, SAYING
IT WASN'T CARPENTRY, AND THE FOREMAN REPLIED THEY HAD BEEN DOING THAT
WORK FOR A LING TIME AND IT'S THE ACCUSTOMED PRACTICE.
(E) ON FEBRUARY 14 COSENTINO AND EARL COX WERE EACH ASSIGNED TO
INSTALL A DOUBLE DOOR UNIT AT BUILDING 2 ON OPPOSITE SIDES OF THEREOF.
PRITCHETT TOLD COSENTINO TO REMOVE THE SCREEN DOORS FROM OUTSIDE, TAKE
TWO DOORS DOWN ON THE INSIDE, INSTALL TWO NEW DOORS WITH HINGES, PUT IN
A T-ASTRIGAL STRIP BETWEEN THE DOORS, INSTALL A THRESHOLD, AS INSTALL A
LOCK AND DOOR CLOSURE. DURING THE DAY THE SUPERVISOR CHECKED TO SEE HOW
COSENTINO WAS FARING. THE LATTER SAID HE NEVER HUNG DOUBLE DOORS OF
THIS TYPE BEFORE, AND HE REQUESTED ASSISTANCE. COSENTINO ALSO SAID HE
DID NOT KNOW HOW TO INSTALL A T-ASTRIGAL AND PRITCHETT SHOWED HIM THE
PROCEDURE. HOWEVER, THE SUPERVISOR TOLD THE EMPLOYEE TO DO THE BEST HE
COULD, AND HE REFUSED TO ASSIGN SOMEONE TO ASSIST IN THE INSTALLATION.
/6/
AFTER THE DOORS WERE FINALLY INSTALLED BY COSENTINO, THE FOREMAN
RETURNED TO INSPECT THEM. HE DISCOVERED THERE WAS A HALF INCH CRACK
BETWEEN THE DOORS AND THE DOOR WAS CUT TOO NARROW FOR THE OPENING. THE
DOORS WERE REMOVED, AND A PIECE OF LUMBER WAS ADDED BY THE WOODCRAFTMAN.
THE JOB CONSUMED 20 HOURS WHEREAS IT SHOULD HAVE BEEN COMPLETED,
ACCORDING TO PRITCHETT, IN 8 HOURS. ROGER WILLI, MAINTENANCE GENERAL
FOREMAN IN THIS DEPARTMENT, WHO WAS PRITCHETT'S SUPERVISOR, TESTIFIED
THAT HE INSPECTED THE JOB; THAT THE DOOR HAD DIFFERENT CLOSURES; AND
THAT THE WORK PERFORMED BY COSENTINO WAS OF POOR QUALITY.
(F) ON MARCH 23 COSENTINO WAS ASSIGNED TO BUILD A WALKWAY (SMALL
PLATFORM) WITH A HANDRAIL ON EACH SIDE OF THE STEPS AT BUILDING 769.
BOTH THIS EMPLOYEE AND HUGH D. TAPLEY, CARPENTER, DREW MATERIAL FOR THE
JOB. COSENTINO WORKED ON THIS PROJECT FOR THREE DAYS. PRITCHETT
TESTIFIED THAT THE 4' X 4' POST FOR THE HANDRAIL WAS TWO INCHES OUT OF
PLUMB, THE RISE OF THE STEPS UNEQUAL, AND THE TREAD ON THE STEPS WAS OUT
OF LEVEL. THE STEPS HAD TO BE REBUILT. ALTHOUGH COSENTINO ASKED FOR A
CHANCE TO REBUILD THEM, HE WAS NOT REASSIGNED TO DO SO. VOELKER CAUSED
AN INSPECTION TO BE MADE OF THE STEPS BY SAFETY OFFICER GEORGE
DUCKWORTH. HIS TESTIMONY REFLECTS THAT THREE WERE NOT WITHIN THE OSHA
REQUIREMENTS, AND THAT ALL WERE SAFE EXCEPT FOR TWO OF THEM; THAT THE
STEP TREAD RISE VARIED, THE ANGLES DIFFERED, AND THE HANDRAILS WERE ONE
INCH HIGHER THAN OSHA STANDARDS. /7/ FURTHER EVIDENCE WAS ADDUCED BY
COMPLAINANT TO SHOW THAT STEPS BUILD BY OTHER CARPENTERS WERE DEFICIENT
AND UNSAFE. /8/
(G) ON MARCH 30 PRITCHETT ASSIGNED COSENTINO TO INSTALL A NEW DOOR AT
BUILDING 8, AND HE SENT ALONG JESSE RICKS, CARPENTER, TO ASSIST IN THE
TASK. COSENTINO HUNG THE DOOR BUT HE INFORMED THE SUPERVISOR THAT THE
DOOR LOCK DID NOT WORK PROPERLY. PRITCHETT DISCOVERED THAT THE CYLINDER
WAS UPSIDE DOWN. HE OFFERED TO SHOW COSENTINO HOW TO INSTALL THE LOCK
PROPERLY, BUT THE DENTAL OFFICE HAD THE KEY SO THE FOREMAN COULD NOT
INSTRUCT HIM IN REGARD THERETO.
(H) ON MARCH 31 COSENTINO WAS ASSIGNED TO PUT SAW BENCHES (HORSES)
TOGETHER AND PRITCHETT EXPLAINED THE PROCEDURE TO HIM. ALTHOUGH THE
MATERIAL HAD BEEN CUT, THE WORK WAS POORLY DONE ACCORDING TO THE
SUPERVISOR. THE DEGREE OF ANGLE WAS SHORTENED UP-- A PIECE OF PLYWOOD
WAS LAID ACROSS THE ENDS OF THE LEGS. PRITCHETT ASKED COSENTINO TO CUT
THE BEVEL ON WHERE THE PLYWOOD FIT AGAINST THE BRACES. THIS WAS NOT
DONE.
(I) ON MAY 5 COSENTINO WAS ASSIGNED TO FREE WINDOWS, WHICH HAD BEEN
PAINTED, AND REPLACE WINDOW BALANCES. COSENTINO WAS UNABLE TO DO THE
JOB. PRITCHETT TESTIFIED THAT THE EMPLOYEE TRIED TO FREE THE WINDOWS
FROM THE INSIDE RATHER THAN OUTSIDE; THAT THIS WAS A ROUTINE JOB WHICH
HAD NEVER POSED A PROBLEM FOR OTHER CARPENTERS.
(J) ON MAY 18, 1978 COSENTINO WAS ASSIGNED TO HANGAR 115 TO CUT TWO
DOOR OPENINGS THROUGH A 2' X 4' WALL. HE CUT THE HINGES ON THE WRONG
SIDE OF THE JAMB AND CUT THE PIECE OF CASING WRONG.
COSENTINO TESTIFIED, AND I FIND THAT AT THIS TIME A DISCUSSION
ENSURED BETWEEN HIMSELF AND PRITCHETT RE THE GRIEVANCES FILED BY THIS
EMPLOYEE. THE SUPERVISOR REMARKED THAT HE USED TO BE A CHIEF STEWARD
HIMSELF AND HAD BROUGHT MR. TAPLEY INTO THE UNION; AND THAT HE KNEW
WHAT THE UNION COULD OR COULD NOT DO FOR AN INDIVIDUAL; THAT REGARDLESS
OF THE OUTCOME OF THE GRIEVANCES, PRITCHETT WOULD GIVE COSENTINO A
WRITTEN REPRIMAND WHENEVER HE WAS DEFICIENT IN HIS WORK.
(K) ON JULY 6 COSENTINO WAS ASSIGNED TO BUILD THREE PAIRS OF SAW
BENCHES. HE CUT THE PIECES OF MATERIAL TOO SHORT AND TOOK 16 HOURS TO
FINISH THE TASK, WHICH PRITCHETT TESTIFIED SHOULD BE COMPLETED IN 8-10
HOURS. THE LEGS OF THE BENCHES WERE AT DIFFERENT DEGREES; THE HEIGHT
AND ANGLE VARIED ON THE BENCHES. WILLI TESTIFIED HE SAW COSENTINO
BUILDING TWO SAWHORSES; THAT HE WAS PUSHING THE LUMBER BETWEEN THE
FENCE AND THE SAW SO THAT THE LUMBER COULD KICK BACK; AND THAT
COSENTINO WAS WORKING IN AN UNSAFE MANNER. THE SUPERVISOR TALKED TO
COSENTINO WHO COMMENTED HE HAD DIFFICULTY FIGURING OUT WHAT ANGLE TO CUT
THE SAWHORSES. FURTHER, THE EMPLOYEE STATED HE WAS NOT FAMILIAR WITH
THE "BEVEL SQUARE". WILLI'S TESTIMONY INDICATES THAT THE SAWHORSES WERE
NOT UNIFORMLY CONSTRUCTED SINCE THE LEGS WERE NOT ALL BUILT AT THE SAME
ANGLE.
10. AS A RESULT OF THE INCIDENT ON FEBRUARY 14 RE THE TIME SPENT
HANGING THE DOORS BY COSENTINO, AS WELL AS THE POOR WORK PRODUCT,
PRITCHETT INFORMED THE EMPLOYEE ON FEBRUARY 16 THAT A LETTER OF
REPRIMAND WOULD BE ISSUED TO HIM. THE FOREMAN ASKED THE EMPLOYEE TO
SIGN A LETTER CONCERNING THE MATTER. COSENTINO REFUSED, STATING HE
WANTED UNION REPRESENTATION. PRITCHETT REPLIED THAT COSENTINO WAS THE
UNION AND DIDN'T NEED IT; AND THE EMPLOYEE COMMENTED HE WAS MERELY THE
UNION STEWARD.
11. ON FEBRUARY 23 THE LETTER OF REPRIMAND WAS ISSUED TO COSENTINO.
A GRIEVANCE WAS FILED ON HIS BEHALF ON THE GROUND THAT IT WAS IMPROPERLY
ISSUED UNDER THE CONTRACT. MANAGEMENT AGREED AND THE REPRIMAND WAS
WITHDRAWN.
12. A SECOND LETTER OF REPRIMAND, BASED ON THE SAME INCIDENT, WAS
ISSUED ON MARCH 14, AND ANOTHER GRIEVANCE FILED. RESPONDENT DECIDED IT
HAD BEEN SOMEWHAT HARSH ON COSENTINO AND WITHDREW THIS REPRIMAND.
HOWEVER, IT GAVE HIM A 90 DAY LETTER OF DEFICIENCY. ON MARCH 29
PRITCHETT ISSUED TO COSENTINO A WRITTEN NOTICE OF NEED FOR IMPROVEMENT.
13. DURING 1978, ON A PARTICULAR DAY, COSENTINO LEFT HIS WORK
STATION TO CHECK THE OVERTIME LIST WHICH THE PIPE SHOP FOREMAN HAD FOR
HIS OWN EMPLOYEES. THERE HAD BEEN SOME DISCREPANCY AS TO THE OVERTIME
FOR SEVERAL WORKERS. PRITCHETT HAD APPROVED FOUR HOURS LEAVE FOR
COSENTINO TO CONDUCT UNION BUSINESS IN THE AFTERNOON. WHEN THE PIPE
SHOP FOREMAN ADVISED PRITCHETT THAT COSENTINO WAS ATTENDING TO UNION
BUSINESS IN THE MORNING WITHOUT A SLIP, PRITCHETT WENT TO THE UNION
OFFICE. HE CONFRONTED COSENTINO AND SAID IF HE LEFT AGAIN WITHOUT
GETTING PERMISSION, HE'D BE IN TROUBLE. COSENTINO REPLIED HE HAD A CHIT
(PERMISSION), BUT THE SUPERVISOR TOLD HIM THAT THE CHIT WAS FOR THE
AFTERNOON.
14. COMMENCING IN JANUARY PRITCHETT INFORMED WILLI RE COSENTINO'S
POOR PERFORMANCE. ON JULY 7 THEY AGAIN DISCUSSED THE EMPLOYEE'S WORK
RECORD AND AGREED THAT COSENTINO DID NOT POSSESS THE SKILLS OF A WG-9
CARPENTER. ACCORDINGLY, WILLI RECOMMENDED TO J. B. TUBBS, DIRECTOR OF
MAINTENANCE, THAT COSENTINO BE TERMINATED.
15. THE RECORD ESTABLISHES THAT ON MARCH 24 COSENTINO WAS GIVEN AN
AUTOMATIC PAY RAISE, OR STEP INCREASE, AND THAT HIS PERFORMANCE WAS
RATED AS SATISFACTORY OR BETTER. RECORD TESTIMONY REFLECTS THAT
PRITCHETT DID NOT RECOMMEND THE INCREASE; THAT THE ACTION WAS TAKEN BY
THE PERSONNEL DEPARTMENT; AND THAT NO EVALUATION /9/ HAD BEEN MADE BY
PRITCHETT TO THE OFFICE RE COSENTINO'S PERFORMANCE AS A CARPENTER.
16. BY LETTER DATED JUNE 8 THE COMMANDING OFFICER, E. M. PEEKS,
WROTE TO THE PUBLIC WORKS DIVISION AND EXPRESSED HIS THANKS TO COSENTINO
AND FIVE OTHER CARPENTERS FOR THE GOOD JOB PERFORMED AT HANGAR 115
DURING THE WEEK OF MAY 22.
17. RECORD FACTS DISCLOSE THAT SUPERVISOR PRITCHETT HAD REPRIMANDED
ONLY ONE OTHER EMPLOYEE; THAT HE NEVER HAS RECOMMENDED TERMINATION OF
ANYONE ELSE.
CONCLUSIONS
THE ISSUE PRESENTED FOR DETERMINATION IS WHETHER, AS CONTENDED BY
COMPLAINANT, PROBATIONARY EMPLOYEE FRANK COSENTINO WAS TERMINATED
BECAUSE OF HIS ACTIVITIES AS STEWARD AND CHIEF STEWARD ON BEHALF OF
COMPLAINANT UNION -- ALL IN VIOLATION OF SECTIONS 19(A)(1) AND (2) OF
THE ORDER.
RESPONDENT MAINTAINS THAT COSENTINO WAS DISCHARGED AS A RESULT OF HIS
POOR WORK PERFORMANCE AS A CARPENTER; THAT THE EMPLOYEE DID NOT MEASURE
UP TO THE REQUIRED STANDARDS OF A JOURNEYMAN CARPENTER; AND THAT HIS
ACTIVITIES AS A UNION STEWARD WERE NOT A FACTOR WHICH PROMPTED THE
EMPLOYER TO TERMINATE COSENTINO'S EMPLOYMENT DURING HIS PROBATIONARY
PERIOD.
UNDER SECTION 19(A)(2) OF THE ORDER AN EMPLOYER IS FORBIDDEN TO
DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BY REASON OF HIS
UNION ACTIVITIES. A VIOLATION OF THIS SECTION WILL OCCUR WHERE A MOTIVE
FOR TERMINATION OF AN EMPLOYEE, ALBEIT IT COMBINED WITH OTHER
CONSIDERATIONS, RESTS ON THE INDIVIDUAL'S ACTIONS ON BEHALF OF THE
UNION. THUS, THE TEST IS WHETHER, AS IS TRUE ALSO IN THE PRIVATE
SECTOR, MANAGEMENT'S CONDUCT WAS MOTIVATED BY UNION ANIMUS. SEE HEW,
SSA, BUREAU OF HEARINGS AND VA HOSPITAL, MINNEAPOLIS, MINN. A/SLMR NO.
1090.
APPLYING THE DECISIONAL LAW TO THE INSTANT CASE, I AM PERSUADED THAT
RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) AND (2) OF THE ORDER.
CAREFUL CONSIDERATION OF THE RECORD FACTS CONVINCES ME THAT THE EMPLOYER
WAS NOT MOTIVATED BY COSENTINO'S ACTIONS AS UNION STEWARD. MOREOVER, I
AM CONSTRAINED TO CONCLUDE THAT RESPONDENT WAS DISSATISFIED WITH THE
EMPLOYEE'S WORK PERFORMANCE AS A CARPENTER; THAT COSENTINO DID, IN
FACT, FAIL TO PERFORM SATISFACTORILY ON SEVERAL JOB ASSIGNMENTS; AND
THAT SUPERVISOR PRITCHETT RECOMMENDED COSENTINO'S TERMINATION AS A
RESULT THEREOF.
RECORD FACTS DISCLOSE THAT FROM THE ONSET OF HIS EMPLOYMENT IN LATE
SEPTEMBER 1977 UNTIL JULY 1978, COSENTINO HAD DIFFICULTY IN FULFILLING
HIS JOB ASSIGNMENTS ON TEN DIFFERENT OCCASIONS. APART FROM THE FACT
THAT I DO NOT DEEM IT INCUMBENT UPON ME TO PASS UPON THE QUALITY OF HIS
WORK IN EACH INSTANCE, IT APPEARS THAT THE EMPLOYEE HIMSELF CONCEDES HE
LACKED THE EXPERIENCE TO PERFORM CERTAIN TASKS AND ADMITTED THAT ERRORS
WERE MADE BY HIM IN THE EXECUTION THEREOF. THUS, COSENTINO DOES NOT
DENY HIS LACK OF ABILITY TO HANG THE DOUBLE DOORS ON FEBRUARY 14; HE
CONFIRMS THE FACT, AS DOES THE UNION REPRESENTATIVE VOELKER, THAT AT
LEAST SEVERAL STEPS BUILT BY COSENTINO ON MARCH 23 WERE UNSAFE AND HAD
VARIANCES IN THE STEP TREAD RISE AS WELL AS DIFFERENCES IN THE ANGLES.
MOREOVER, NO DISPUTE EXISTS THAT THE ELECTRIC DRILL MOTOR ASSIGNED TO
COSENTINO WAS NEVER DISCOVERED. THE GENERAL FOREMAN, WILLI, ATTESTED TO
THE POOR QUALITY OF THE EMPLOYEE'S WORK, PARTICULARLY IN REGARD TO THE
CONSTRUCTION OF THE SAWHORSES.
WHILE SOME DISCUSSION ENSURED BETWEEN PRITCHETT AND COSENTINO IN
RESPECT TO THE UNION, I DO NOT FIND THAT THE FOREMAN MANIFESTED ANY
UNION ANIMUS TOWARD THE EMPLOYEE. PRITCHETT'S COMMENTS TO THE EFFECT
THAT HE HAD BEEN A CHIEF UNION STEWARD AND HAD INTRODUCED CARPENTER
TAPLEY INTO THE UNION REFLECT NO ANIMOSITY OR HOSTILITY TO LABOR
ORGANIZATIONS. /10/ FURTHER, THE RECORD ESTABLISHES THAT THERE WERE 22
STEWARDS AND TWO OTHER CHIEF STEWARDS AT THIS LOCATION, AND THAT 10-11
STEWARDS WORKED IN THE SAME DEPARTMENT AS COSENTINO -- THE PUBLIC WORKS
DEPARTMENT. THERE IS NO INDICATION THAT MANAGEMENT DISPLAYED ANY UNION
ANIMUS TOWARD THESE INDIVIDUALS, HARASSED THEM BY REASON OF THEIR UNION
ACTIVITIES, OR DISCRIMINATED AGAINST THEM BY REASON THEREOF. THE RECORD
IS BARREN OF ANY INTERFERENCE OR RESTRAINT VISITED UPON INDIVIDUALS OR
STEWARDS FOR FILING GRIEVANCES OR COMPLAINTS UNDER THE AGREEMENT BETWEEN
THE PARTIES.
PRITCHETT EVIDENCED HIS DISSATISFACTION WITH COSENTINO'S WORK AS A
CARPENTER FROM THE OUTSET. HE ISSUED LETTERS OF REPRIMAND BASED ON HIS
JUDGMENT THAT THE EMPLOYEE PERFORMED POORLY. WHILE PRITCHETT KEPT NO
RECORD OF THE PERFORMANCE OF THE OTHER TWO PROBATIONARY EMPLOYEES, I DO
NOT CONCLUDE THAT HIS FAILURE TO DO SO WAS BOTTOMED UPON DISCRIMINATING
REASONS. BOTH VAN LIEU AND BIALEK, AS PROBATIONARY CARPENTERS, WERE
CAPABLE CARPENTERS AND, AS TESTIFIED TO BY THE FOREMAN, NO NEED EXISTED
TO DOCUMENT THEIR WORK RECORD.
WHILE COMPLAINANT ADVERTS TO THE "RAISE" GRANTED COSENTINO, AS WELL
AS THE "RATING" THAT THE EMPLOYEE PERFORMED SATISFACTORILY, THESE
RESULTED FROM ACTION TAKEN BY THE PERSONNEL DEPARTMENT.
THE INCREASE IN SALARY WAS A STEP-INCREASE AND WAS AUTOMATICALLY
GRANTED; AND NEITHER PRITCHETT NOR WILLI -- BOTH OF WHOM WERE
INSTRUMENTAL IN TERMINATING COSENTINO -- SANCTIONED THE EVALUATION
ATTRIBUTED TO THE EMPLOYEE.
UPON CAREFUL CONSIDERATION OF ALL THE EVIDENCE HEREIN, I CONCLUDE
THAT MANAGEMENT WAS NOT SATISFIED WITH COSENTINO'S PERFORMANCE AS A
CARPENTER DURING HIS PROBATIONARY PERIOD. THE RECORD REVEALS TO THE
UNDERSIGNED THAT THE EMPLOYEE'S ACTIVITIES AS UNION STEWARD, OR CHIEF
STEWARD, WERE NOT RESPONSIBLE FOR HIS TERMINATION; THAT BOTH THE
WOODCRAFTMAN FOREMAN AND THE GENERAL MAINTENANCE FOREMAN BASED THEIR
RECOMMENDATIONS TO DISCHARGE COSENTINO UPON HIS INABILITY TO PERFORM AS
A JOURNEYMAN CARPENTER. ACCORDINGLY, I CONCLUDE THE TERMINATION OF
FRANK COSENTINO DISCLOSED NO ILLEGAL MOTIVATION AND HENCE WAS NOT
DISCRIMINATORY.
RECOMMENDATION
IT HAVING BEEN FOUND THAT RESPONDENT DID NOT ENGAGE IN ANY CONDUCT
VIOLATIVE OF SECTIONS 19(A)(1) AND (2) OF THE ORDER, IT IS RECOMMENDED
THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: AUGUST 7, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS 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 CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/2/ THE NAME OF THE EMPLOYER APPEARS AS CORRECTED AT THE HEARING.
/3/ THE 19(A)(4) PORTION OF THE COMPLAINT WAS WITHDRAWN BY
COMPLAINANT ON MARCH 6, 1979.
/4/ THE PROBATIONARY PERIOD OF EMPLOYMENT IS ONE YEAR.
/5/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER REFERRED TO
WILL BE IN 1978.
/6/ PRITCHETT CLAIMED HE WANTED TO EVALUATE COSENTINO'S ABILITIES AND
THUS DECLINED TO ASSIGN ANOTHER CARPENTER TO THE JOB.
/7/ IN VIEW OF MY CONCLUSIONS WITH RESPECT TO THE ALLEGED
DISCRIMINATION, AS HEREINAFTER SET FORTH, I DO NOT CONSIDER IT NECESSARY
TO PASS ON THE COMPARATIVE QUALITY OR WORKMANSHIP OF COSENTINO'S WORK
PRODUCT.
/8/ WHILE RESPONDENT CONCEDES OTHER WORKERS HAVE ERRED IN THEIR WORK
PERFORMANCE, IT CONTENDS THIS WAS OCCASIONAL AND INFREQUENT.
/9/ PROBATIONARY EMPLOYEES ARE NOT GIVEN A REGULAR PERFORMANCE RATING
UNTIL THEY HAVE COMPLETED THEIR PROBATIONARY PERIOD.
/10/ THERE IS SOME EVIDENCE THAT ON FEBRUARY 14, AT WHICH TIME
PRITCHETT ADVISED COSENTINO HE WOULD RECEIVE A REPRIMAND LETTER, THE
EMPLOYEE REQUESTED UNION REPRESENTATION. APART FROM THE FACT THAT THE
RECORD IS UNCLEAR AS TO WHETHER COSENTINO WAS DENIED SUCH
REPRESENTATION, THE COMPLAINT DOES NOT ALLEGE SUCH DENIAL AS AN UNFAIR
LABOR PRACTICE.