[ v02 p540 ]
02:0540(72)CA
The decision of the Authority follows:
2 FLRA No. 72
DEPARTMENT OF THE ARMY,
HEADQUARTERS, MILITARY TRAFFIC
MANAGEMENT COMMAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 909, AFL-CIO
Complainant
Assistant Secretary
Case No. 22-09049(CA)
DECISION AND ORDER
ON JUNE 6, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM B. DEVANEY ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING,
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S 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 THIS CASE, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED HEREIN. /1/
THE COMPLAINT HEREIN ALLEGED, AMONG OTHER THINGS, THAT THE ORAL
REPRIMAND GIVEN THOMAS O. BARNES ON OCTOBER 26, 1977, WAS BASED ON HIS
UNION ACTIVITIES IN VIOLATION OF SECTION 19(A)(1) AND (2) OF THE ORDER.
THE ORAL REPRIMAND GIVEN BARNES WAS BASED ON HIS CONDUCT AT A MERIT
PROMOTION RATING AND RANKING PANEL. THE RECORD REFLECTS THAT BARNES
SERVED ON THE RATING AND RANKING PANEL PURSUANT TO THE COMPLAINANT'S
NEGOTIATED RIGHT TO SELECT ONE MEMBER FOR SUCH A PANEL. THE OTHER TWO
MEMBERS OF THE PANEL, MS. FLEMING AND MS. KILLEN, WERE SELECTED BY
MANAGEMENT. AFTER EACH OF THE THREE PANEL MEMBERS COMPLETED THEIR
RATING AND RANKING INDEPENDENTLY, MS. HOLLIMAN, A PERSONNEL SPECIALIST,
CONVENED THE PANEL TO COLLATE THE RESULTS AND TO DISCUSS INDIVIDUAL
DIFFERENCES IN RANKING. THE CREDITED TESTIMONY REVEALS THAT BARNES
BECAME UPSET DURING THIS DISCUSSION AND, AMONG OTHER THINGS, MADE
VARIOUS COMMENTS TO KILLEN REGARDING HER RATING AND RANKING. THE
CREDITED TESTIMONY OF KILLEN REFLECTS THAT BARNES TOLD HER THAT SHE WAS
"INDOCTRINATED BY MANAGEMENT," THAT SHE "RATED UNFAIRLY," AND THAT SHE
"HAD BEEN TOLD HOW TO RATE." KILLEN TESTIFIED FURTHER THAT BARNES "WAS
VERY LOUD." BASED ON THESE STATEMENTS, WHICH KILLEN DESCRIBED AS
EMBARRASSING AND CONSTITUTING AN ATTEMPT TO INTIMIDATE HER, AND AN
INCIDENT INVOLVING HER SUPERVISOR AND BARNES THE NEXT DAY, KILLEN WROTE
A LETTER COMPLAINING ABOUT BARNES TO COLONEL CRUM, HEAD OF THE
DIRECTORATE WHERE SHE AND BARNES ARE EMPLOYED. COLONEL CRUM, AFTER
INVESTIGATION, GAVE BARNES AN ORAL REPRIMAND, BASED SOLELY ON HIS
CONDUCT AT THE RATING AND RANKING PANEL, WHICH CRUM CONSIDERED TO BE
"DETRIMENTAL TO THE MORALE AND DISCIPLINE WITHIN THE ORGANIZATION." /2/
THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT THE CREDIBLE EVIDENCE
OVERWHELMINGLY SHOWED THE ORAL REPRIMAND TO HAVE BEEN BASED SOLELY ON
BARNES' PERSONAL CONDUCT TOWARDS ANOTHER EMPLOYEE DURING THE PANEL
MEETING, WHICH CONSTITUTED OFFICIAL AGENCY BUSINESS. WHILE THE
ADMINISTRATIVE LAW JUDGE ACKNOWLEDGED THAT BARNES WAS A UNION
REPRESENTATIVE ON THE PANEL, HE FOUND NO VIOLATION BECAUSE UNION ANIMUS
PLAYED NO PART IN THE REPRIMAND. THE AUTHORITY CONCLUDES THAT BARNES
WAS ENGAGED IN PROTECTED UNION ACTIVITY WHILE SERVING ON THE PANEL,
BECAUSE HE WAS THE UNION-SELECTED MEMBER PURSUANT TO THE PARTIES'
NEGOTIATED AGREEMENT. WE DO NOT VIEW HIS ACTIVITY TO HAVE LOST ITS
PROTECTION BY VIRTUE OF ITS ALLEGED IMPROPRIETY. IN THIS REGARD, IN A
RECENT DECISION THE AUTHORITY NOTED THAT NOT EVERY ALLEGED IMPROPRIETY
COMMITTED BY AN EMPLOYEE WHILE OTHERWISE ENGAGED IN PROTECTED ACTIVITY
IS BEYOND THE AMBIT OF THE PROTECTED ACTIVITY. TO REMOVE THE CONDUCT
FROM THE AMBIT OF THE PROTECTION, THE EMPLOYEE MUST BE FOUND TO HAVE
ENGAGED IN FLAGRANT MISCONDUCT. /3/ IN THE CIRCUMSTANCES OF THE INSTANT
CASE, ALTHOUGH THE AUTHORITY DOES NOT ENDORSE THE TONE OF THE STATEMENTS
MADE BY BARNES TO KILLEN DURING THE PANEL DISCUSSION, THE STATEMENTS
REPRESENTED THE LEGITIMATE CONCERN OF A UNION REPRESENTATIVE REGARDING
RANKINGS BY PANEL MEMBERS SELECTED BY MANAGEMENT AND DO NOT REPRESENT
THE KIND OF FLAGRANT MISCONDUCT WHICH IS BEYOND THE AMBIT OF PROTECTED
ACTIVITY. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE ORAL REPRIMAND
GIVEN BARNES WAS VIOLATIVE OF SECTION 19(A)(1) AND (2) OF THE ORDER AS
IT WAS BASED ON BARNES' CONDUCT WHILE HE WAS ENGAGED IN PROTECTED
ACTIVITY.
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 DEPARTMENT OF THE ARMY, HEADQUARTERS, MILITARY TRAFFIC
MANAGEMENT COMMAND, SHALL:
1. CEASE AND DESIST FROM:
(A) REPRIMANDING OR OTHERWISE DISCRIMINATING AGAINST THOMAS O.
BARNES, OR ANY OTHER
EMPLOYEE, WITH RESPECT TO CONDITIONS OF EMPLOYMENT BECAUSE SUCH
EMPLOYEE ENGAGED IN PROTECTED
ACTIVITY WHILE SERVING ON BEHALF OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
909, AFL-CIO, ON A RATING AND RANKING PANEL.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE EXECUTIVE ORDER.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE THE PURPOSES
OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE ORAL
REPRIMAND GIVEN THOMAS
O. BARNES ON OCTOBER 26, 1977, AND SUBMIT TO THOMAS O. BARNES A
WRITTEN ACKNOWLEDGEMENT OF
THAT ACTION.
(B) POST AT THE FACILITIES OF THE DEPARTMENT OF THE ARMY,
HEADQUARTERS, MILITARY TRAFFIC
MANAGEMENT COMMAND, 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 COMMANDING OFFICER OF THE DEPARTMENT OF THE ARMY, HEADQUARTERS,
MILITARY TRAFFIC COMMAND,
AND THEY SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE
DAYS THEREAFTER IN
CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES
ARE CUSTOMARILY
POSTED. THE COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) 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 HEREBY FURTHER ORDERED THAT THE PORTION OF THE COMPLAINT IN
ASSISTANT SECRETARY CASE NO. 22-09049(CA) FOUND NOT TO BE VIOLATIVE OF
THE EXECUTIVE ORDER 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
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 REPRIMAND OR OTHERWISE DISCRIMINATE AGAINST THOMAS O.
BARNES, OR ANY OTHER EMPLOYEE, WITH RESPECT TO CONDITIONS OF EMPLOYMENT
BECAUSE SUCH EMPLOYEE ENGAGED IN PROTECTED ACTIVITY WHILE SERVING ON
BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 909,
AFL-CIO, ON A RATING AND RANKING PANEL.
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 REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE ORAL
REPRIMAND GIVEN THOMAS O. BARNES ON OCTOBER 26, 1977, AND SUBMIT TO
THOMAS O. BARNES A WRITTEN ACKNOWLEDGEMENT OF THAT ACTION.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS
1730 K STREET, NW., ROOM 401, WASHINGTON, D.C., AND WHOSE TELEPHONE
NUMBER IS: (202) 653-7213.
MR. HARRY F. RAGER
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
14TH DISTRICT
8020 NEW HAMPSHIRE AVENUE
HYATTSVILLE, MARYLAND 20783
FOR THE COMPLAINANT
WILLIAM J. MERRIGAN, ESQUIRE
MILITARY TRAFFIC MANAGEMENT COMMAND
DEPARTMENT OF THE ARMY
WASHINGTON, D.C. 20315
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). ALTHOUGH THE NOTICE OF
HEARING WAS ISSUED BY A REGIONAL ADMINISTRATOR OF THE LABOR-MANAGEMENT
SERVICES ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR, AND
PROCEEDINGS WERE, IN PART, CONDUCTED BEFORE THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS, ALL PROCEEDINGS AFTER JANUARY 1,
1979, WERE CONDUCTED BEFORE THE AUTHORITY AND THIS DECISION IS ISSUED IN
THE NAME OF THE AUTHORITY, PURSUANT TO TRANSITION RULES AND REGULATIONS,
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979 (5 C.F.R. SECTION
2400.2).
THIS MATTER WAS INITIATED BY COMPLAINANT'S CHARGE, DATED FEBRUARY 27,
1978 (ALJ EXH. 3) AND COMPLAINT, DATED MAY 26, 1978, FILED MAY 30, 1978
(ALJ EXH. 1), TO WHICH RESPONDENT REPLIED BY LETTER DATED JUNE 9, 1978
(ALJ EXH. 1). THE CHARGE AND THE COMPLAINT HAD ALLEGED VIOLATIONS OF
SECTIONS 19(A)(1), (2), (3); SECTION 10(E) AND SECTION 19(D) OF THE
ORDER. ON OCTOBER 5, 1978, THE REGIONAL ADMINISTRATOR ADVISED
COMPLAINANT THAT HE WAS PREPARED TO ISSUE A NOTICE OF HEARING ON THE
FOLLOWING ISSUES:
"(1) WAS THOMAS O. BARNES ISSUED AN ORAL REPRIMAND ON OCTOBER 26,
1977 BECAUSE OF HIS UNION
ACTIVITIES IN VIOLATION OF SECTIONS 19(A)(1) AND (2) OF THE ORDER.
"(2) WAS THOMAS O. BARNES 'THREATENED' BY ACTIVITY REPRESENTATIVES ON
OCTOBER 12, 19, 21
AND 26, 1977, IN VIOLATION OF SECTIONS 19(A)(1) OF THE ORDER FOR
EXERCISING HIS RIGHTS
GUARANTEED BY THE EXECUTIVE ORDER 11491, AS AMENDED.
"(3) DID THE ACTIVITY'S SEPTEMBER 1, 1977 LETTER TO THE UNION
PROHIBITING THOMAS BARNES
FROM SERVING ON RATING AND RANKING PANELS CONSTITUTE A VIOLATION OF
SECTIONS 19(A)(1) AND (3)
OF THE ORDER." /4/
EXCEPT AS TO THE THREE ISSUES STATED BY THE REGIONAL ADMINISTRATOR,
WHICH PURPORTEDLY WERE BASED AN ALLEGATIONS 1, 2 AND 7 OF THE
COMPLAINANT'S CHARGE, THE REGIONAL ADMINISTRATOR DISMISSED ALL OTHER
PORTIONS OF THE COMPLAINT, INCLUDING ALLEGATIONS 3, 4, 5, 6 AND 8 AS SET
FORTH IN COMPLAINANT'S CHARGE, AND ADVISED COMPLAINANT OF ITS RIGHT,
PURSUANT TO SECTION 203.8 OF THE REGULATIONS, TO APPEAL THE PORTIONS OF
HIS DECISION DISMISSING ALLEGATIONS OF THE COMPLAINT. NO APPEAL WAS
FILED AND ON NOVEMBER 14, 1978, THE REGIONAL ADMINISTRATOR ISSUED A
NOTICE OF HEARING ON THE ALLEGED VIOLATION OF SECTIONS 19(A)(1) AND (2)
AND (3) OF THE ORDER, AS MORE SPECIFICALLY STATED IN ITS REGIONAL
ADMINISTRATOR'S LETTER OF OCTOBER 5, 1978. THE NOTICE OF HEARING SET
THE HEARING FOR JANUARY 29, 1979, HOWEVER, ON JANUARY 3, 1979, AT
COMPLAINANT'S REQUEST AND FOR GOOD CAUSE SHOWN, THE HEARING WAS
RESCHEDULED FOR FEBRUARY 1, 1979 (ALJ EXH. 2), PURSUANT TO WHICH A
HEARING WAS DULY HELD BEFORE THE UNDERSIGNED ON FEBRUARY 1, 1979, IN
WASHINGTON, D.C.
ALL PARTIES WERE REPRESENTED, WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO INTRODUCE EVIDENCE
BEARING ON THE ISSUES INVOLVED HEREIN, AND TO PRESENT ORAL ARGUMENT. AT
THE CLOSE OF THE HEARING, MARCH 1, 1979, WAS FIXED AS THE DATE FOR
MAILING BRIEFS AND BRIEFS, TIMELY FILED, HAVE BEEN RECEIVED FROM BOTH
PARTIES AND 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 ORDER.
PRELIMINARY MATTER
IN ITS RESPONSE TO THE COMPLAINT, DATED JUNE 9, 1978, RESPONDENT HAD
MOVED TO DISMISS THE COMPLAINT, INTER ALIA, FOR FAILURE OF COMPLAINANT
TO COMPLY WITH SECTION 203.3(A) OF THE REGULATIONS. AT THE HEARING,
RESPONDENT FILED A MOTION TO DISMISS ISSUE NO. 2 FOR FAILURE TO COMPLY
WITH SECTION 203.3(A)(3) OF THE REGULATIONS AND TO DISMISS ISSUE NO. 3,
AS SET FORTH IN THE REGIONAL ADMINISTRATOR'S LETTERS OF OCTOBER 25,
1978, AND NOVEMBER 19, 1978, FOR THE REASON THAT THE ISSUE STATED BY THE
REGIONAL ADMINISTRATOR CONCERNING RESPONDENT'S SEPTEMBER 1, 1977, LETTER
BY COMPLAINANT PROHIBITING THOMAS BARNES FROM SERVING ON RATING AND
RANKING PANELS HAD NOT BEEN CONTAINED IN THE COMPLAINT. RESPONDENT'S
MOTION TO DISMISS WAS DENIED AT THE HEARING BUT IS REASSERTED BY
RESPONDENT IN ITS BRIEF.
THERE IS CONSIDERABLE MERIT TO RESPONDENT'S CONTENTIONS AND
ESPECIALLY SO AS TO ISSUE NO. 3. WITH RESPECT TO THE SEPTEMBER 1, 1977,
LETTER, WHICH IS THE BASIS OF ISSUE NO. 3, RESPONDENT IS CORRECT THAT NO
ALLEGATION CONCERNING THIS MATTER APPEARS IN COMPLAINANT'S SIX PAGE
CHARGE OF FEBRUARY 27, 1978 (ALJ EXH. 3), ALTHOUGH, THE ALLEGATION DOES
APPEAR IN A CHRONOLOGY OF EVENTS ATTACHED TO THE CHARGE (ALJ EXH. 4) (A
DOCUMENT CONSISTING OF ANOTHER 7 PAGES). NOR, INDEED, IS THERE ANY
ALLEGATION IN THE COMPLAINT CONCERNING THE SEPTEMBER 1, 1977, LETTER.
THE ONLY CONCEIVABLE "REFERENCE" TO ANY SUCH ALLEGATION IS THE STATEMENT
IN THE COMPLAINT THAT, "A CHRONOLOGY OF EVENTS IS AT ENCLOSURE 1 TO THE
UNFAIR LABOR PRACTICE CHARGE." THE COMPLAINT STATES THAT COMPLAINANT
"ALLEGES EIGHT (8) SPECIFIC INSTANCES WHERE RESPONDENT VIOLATED E. O.
11491, AND THE SPECIFICS OF THESE EIGHT VIOLATIONS ARE CONTAINED IN THE
ULP ITSELF." CLEARLY, COMPLAINANT'S USE OF THE TERM "ULP" REFERS TO ITS
CHARGE OF FEBRUARY 27, 1978, AND NONE OF THE EIGHT "SPECIFIC INSTANCES"
ALLEGED IN THE CHARGE REFERS TO THE LETTER OF SEPTEMBER 1, 1977, OR
MAKES ANY ASSERTION THAT MR. BARNES WAS PROHIBITED FROM SERVING ON
FUTURE RATING AND RANKING PANELS. THE ASSISTANT SECRETARY HAS HELD THAT
THE REGULATIONS MAY NOT BE SO LIBERALLY APPLIED,
"AS TO READ INTO A COMPLAINT ALLEGATIONS CONTAINED IN A PRE-COMPLAINT
CHARGE BUT NOT
CONTAINED IN THE SUBSEQUENTLY FILED COMPLAINT." UNITED STATES AIR
FORCE, 380TH COMBAT SUPPORT
GROUP, PLATTSBURGH AIR FORCE BASE, NEW YORK, A/SLMR NO. 557, 5 A/SLMR
592, 593(1975) A FORTARI, AN ALLEGATION NOT CONTAINED IN A PRE-COMPLAINT
CHARGE, BUT MERELY CONTAINED IN AN ENCLOSURE FILED WITH THE CHARGE
ENTITLED "CHRONOLOGY OF EVENTS", MAY NOT BE READ INTO THE INSTANT
COMPLAINT. THE "BASIS OF THE COMPLAINT" DOES NOT SET FORTH ANY FACTS
THAT WOULD GIVE ANY BASIS, MUCH LESS "A REASONABLE BASIS" TO BELIEVE
THAT ANY VIOLATION HAD OCCURRED WITH RESPECT TO ANY LETTER IN SEPTEMBER
1, 1977, WHICH WAS NOT ALLEGED, WITH RESPECT TO ANY PROHIBITION ON
THOMAS BARNES SERVING ON RATING AND RANKING PANELS, WHICH WAS NOT
ALLEGED, OR THAT THERE WAS ANY VIOLATION OF SECTIONS 9(A)(1) AND (E) OF
THE ORDER IN SUCH RESPECT, WHICH WAS ALSO NOT ALLEGED. BECAUSE THERE
WAS NO "CLEAR AND CONCISE STATEMENT OF THE FACTS CONSTITUTING THE
ALLEGED UNFAIR LABOR PRACTICE . . . AND THE TIME AND PLACE OF OCCURENCE
OF THE PARTICULAR ACTS", AS REQUIRED BY SECTION 203.3(3) OF THE
REGULATIONS, 29 C.F.R. SECTION 203.3(3), TO SUPPORT ISSUE NO. 3, THE
REGIONAL ADMINISTRATOR ERRED IN HIS LETTER OF OCTOBER 5, 1978 (ALJ EXH.
5) IN HIS DELINEATION OF ISSUE NO. 3 /4/ AND I ERRED IN NOT GRANTING
RESPONDENT'S MOTION TO DISMISS ISSUE NO. 3 AT THE HEARING. RESPONDENT
HAS FULLY PRESERVED ITS POSITION, HAS PROPERLY RENEWED ITS REQUEST IN
ITS BRIEF AND, ISSUE NO. 3, SPECIFICALLY,
"(3) DID THE ACTIVITY'S SEPTEMBER 1, 1977, LETTER TO THE UNION
PROHIBITING THOMAS BARNES
FROM SERVING ON RATING AND RANKING PANELS CONSTITUTE A VIOLATION OF
SECTION 19(A)(1) AND (3)
OF THE ORDER" IS HEREBY DISMISSED /5/ FOR THE REASONS THAT: (A) THE
COMPLAINT CONTAINS NO SUCH ALLEGATION AND THE COMPLAINT CONTAINS NEITHER
A CLEAR AND CONCISE STATEMENT OF ANY FACTS CONSTITUTING THE ALLEGED
UNFAIR LABOR PRACTICE NOR THE TIME AND PLACE OF OCCURENCE OF THE
PARTICULAR ACT; (B) THE CHARGE CONTAINED NO SUCH ALLEGATION, BUT, EVEN
IF IT HAD, SUCH ALLEGATION MAY NOT BE READ INTO THE COMPLAINT; AND (C)
NO MATTER WHAT THE REGIONAL ADMINISTRATOR MAY HAVE "ADDUCED", THE
REGIONAL ADMINISTRATOR HAS NO AUTHORITY UNDER THE REGULATIONS TO ORDER A
HEARING ON AN ISSUE THAT CANNOT REASONABLY BE FOUND IN THE COMPLAINT
SIMPLY BECAUSE HIS INVESTIGATION MAY HAVE REVEALED THAT SUCH A VIOLATION
MIGHT HAVE OCCURRED. AS WELL STATED BY JUDGE KRAMER IN THE PLATTSBURGH
CASE, SUPRA, "THE NOTICE OF HEARING IS DENOMINATED A 'NOTICE OF HEARING
ON COMPLAINT'. SECTION 203.8 OF THE REGULATIONS AUTHORIZES THE
ASSISTANT REGIONAL DIRECTOR TO ISSUE A NOTICE OF HEARING IF HE FINDS
'THERE IS A REASONABLE BASIS FOR THE COMPLAINT'. IT DOES NOT AUTHORIZE
HIM TO ISSUE A NOTICE OF HEARING ON A COMPLAINT THAT HAS NOT BEEN
FILED." (5A/SLMR AT 595). THE ASSISTANT SECRETARY AFFIRMED, STATING, IN
PART, AS FOLLOWS:
"IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, I FIND THAT THE
ASSISTANT REGIONAL
DIRECTOR IMPROPERLY ISSUED A NOTICE OF HEARING IN THIS MATTER ON AN
ALLEGATION WHICH WAS NOT
ALLEGED IN THE COMPLAINT."
CF., UNITED STATES DEPARTMENT OF THE ARMY, FORT POLK, LOUISIANA,
A/SLMR NO. 1100(1978); PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO, A/SLMR NO. 878, 7 A/SLMR 640(1977).
AS TO ISSUE NO. 2,
"(2) WAS THOMAS O. BARNES 'THREATENED' BY ACTIVITY REPRESENTATIVES ON
OCTOBER 12, 19, 21,
AND 26, 1977 IN VIOLATION OF SECTION 19(A)(1) OF THE ORDER FOR
EXERCISING HIS RIGHTS
GUARANTEED BY THE EXECUTIVE ORDER 11491, AS AMENDED." (ALJ EXH. 5)
RESPONDENT IS CORRECT THAT THE COMPLAINT IS SORELY DEFICIENT INSOFAR
AS STATING A "CLEAR AND CONCISE STATEMENT OF THE FACTS" CONSTITUTING A
THREAT ON ANY OCCASION. INDEED, THE ONLY BASIS FOR ANY SUCH ALLEGATION
IS ALLEGATION NO. 2 OF THE CHARGE. ACCEPTING INCORPORATION OF
ALLEGATION NO. 2 OF THE CHARGE, THE ALLEGATION WOULD BE:
"THE THREATENING REMARKS AND STATEMENTS COL. CRUM AND ENGLE MADE TO
MR. BARNES ON OCTOBER
12, OCT. 19, OCT. 21, AND OCT. 26, 1977, VIOLATED BARNES' RIGHTS
ASSURED BY THE ORDER,
. . . " (ALJ EXH. 3).
WHILE ALLEGATION NO. 2 OF THE CHARGE IS, ITSELF, DEVOID OF A CLEAR
AND CONCISE STATEMENT OF THE FACTS, INASMUCH AS SPECIFIC DATES AND
PERSONS ARE IDENTIFIED, ALLEGATION NO. 2 OF THE CHARGE, AS ONE OF THE
EIGHT SPECIFIC INSTANCES SET FORTH IN THE CHARGE (ULP) WHICH COMPLAINANT
HAS INCORPORATED BY REFERENCE, WILL BE DEEMED SUFFICIENT TO WARRANT
DENIAL OF RESPONDENT'S MOTION TO DISMISS. NEVERTHELESS, THE PRACTICE OF
INCORPORATING ANY ALLEGATION OF A CHARGE AS PART OF THE COMPLAINT,
WITHOUT SETTING FORTH IN THE COMPLAINT A CLEAR AND CONCISE STATEMENT OF
THE FACTS CONSTITUTING THE ALLEGED UNFAIR LABOR PRACTICE, THE TIME AND
PLACE OF OCCURRENCE OF THE PARTICULAR ACTS, ETC., AS REQUIRED BY SECTION
203.(3) OF THE REGULATIONS, IS NOT APPROVED AND, ORDINARILY, WILL NOT
SATISFY THE REQUIREMENTS OF THE REGULATIONS. IN THE INSTANT PROCEEDING,
COMPLAINANT DID REFER IN THE COMPLAINT TO THE EIGHT "SPECIFIC INSTANCES"
CONTAINED IN ITS CHARGE, OF WHICH ALLEGATION NO. 2 WAS ONE OF THE EIGHT
"SPECIFIC INSTANCES"; AND RESPONDENT WAS FULLY APPRISED THAT
COMPLAINANT SOUGHT TO INCORPORATE ALLEGATION NO. 2 IN ITS COMPLAINT.
/6/ ACCORDINGLY, THE DENIAL OF RESPONDENT'S MOTION TO DISMISS ISSUE NO.
2 MADE AT THE HEARING IS AFFIRMED.
FINDINGS AND CONCLUSIONS
A. THE ORAL REPRIMAND
ON OCTOBER 26, 1977, MR. THOMAS BARNES WAS GIVEN AN ORAL REPRIMAND BY
COLONEL LUTHER CRUM, DIRECTOR OF MANAGEMENT INFORMATION SYSTEMS IN WHICH
MR. BARNES IS EMPLOYED.
THE EVENTS WHICH LED TO THE ORAL REPRIMAND BEGAN WITH THE CONVENING
OF AN AD HOC COMMITTEE FOR EVALUATION AND RANKING, PURSUANT TO SECTION
VII, MERIT PROMOTION AND INTERNAL PLACEMENT PLAN, HEADQUARTERS, MILITARY
TRAFFIC MANAGEMENT COMMAND STAFF REGULATIONS (RESP. EXH. 4). PURSUANT
TO SECTION VII OF THE STAFF REGULATIONS AND ARTICLE XVIII, SECTION 3, OF
THE PARTIES' THEN EFFECTIVE AGREEMENT, /7/ (RESP. EXH. 5) SUCH
COMMITTEES WILL INCLUDE ONE UNION REPRESENTATIVE. THUS, ARTICLE XVIII,
SECTION 3, PROVIDED, FOR EXAMPLE, THAT, "THE UNION WILL HAVE ONE
PARTICIPATING MEMBER ON AD HOC COMMITTEES FORMED TO PERFORM THE
EVALUATING AND RANKING PROCESS". MR. BARNES WAS THE UNION
REPRESENTATIVE ON THE AD HOC COMMITTEE WHICH WAS CONVENED ON SEPTEMBER
1, 1977. THE OTHER MEMBERS OF THE COMMITTEE WERE: JOANNE KILLEN AND
JACKIE FLEMING. SHERRIE HOLLIMAN, PERSONNEL MANAGEMENT SPECIALIST, WAS
PRESENT TO INSTRUCT THE MEMBERS OF THE COMMITTEE IN THEIR DUTIES, TO
COORDINATE AND TO ASSIST THE COMMITTEE. MS. HOLLIMAN GAVE EACH MEMBER
OF THE COMMITTEE (PANEL MEMBERS) A COPY OF "RESPONSIBILITIES OF RATING
AND RANKING PANEL MEMBERS" (RESP. EXH. 7), INSTRUCTED THE PANEL MEMBERS
AS TO THE PROCEDURE AND FORMS TO BE USED AND GAVE THEM THE PERSONNEL
FILES OF THE CANDIDATES TO BE EVALUATED AND RANKED AND RATING OF EACH
CANDIDATE. WHEN THE PANEL MEMBERS HAD COMPLETED THEIR INDIVIDUAL
RANKING AND RATING OF EACH CANDIDATE, MS. HOLLIMAN RETURNED AND COLLATED
THE RESULTS AND, WHERE THERE WERE SIGNIFICANT VARIATIONS IN THE RATINGS
BY THE MEMBERS OF THE PANEL, THERE WAS DISCUSSION IN AN EFFORT TO INSURE
THAT EACH MEMBER HAD RATED CONSISTENTLY, IN ACCORDANCE WITH THE
GUIDELINES (RESP. EXH. 7), AND, IF POSSIBLE, TO ARRIVE AT A CONSENSUS.
THAT ACRIMONY DISPLACED OBJECTIVE DISCUSSION IS BEYOND DOUBT. INDEED,
MS. KILLEN WAS SO DISTURBED BY MR. BARNES' CONDUCT, WHICH SHE FOUND TO
HAVE BEEN SO ABUSIVE THAT SHE HAD BEEN EMBARRASSED AND RIDICULED AND HIS
LANGUAGE DEGRADING, THAT SHE WENT TO COLONEL CRUM THE FOLLOWING DAY,
SEPTEMBER 2, AND ASKED WHAT COULD BE DONE. COLONEL CRUM TOLD MS. KILLEN
THAT IF SHE HAD ANY COMPLAINT SHE SHOULD PUT IT IN WRITING AND HE WOULD
HAVE IT INVESTIGATED; BUT, RECOGNIZING THAT MS. KILLEN WAS STILL VERY
UPSET, URGED HER TO THINK IT OVER FOR A FEW DAYS. MS. KILLEN DID SO BUT
ON SEPTEMBER 23, 1977, SHE WROTE COLONEL CRUM AND SET FORTH HER
COMPLAINT IN WRITING.
IN THE MEANTIME, MR. BARNES HAD WRITTEN AND MR. EDGAR CAMPBELL, JR.,
PRESIDENT OF LOCAL 909, HAD SIGNED A LETTER DATED SEPTEMBER 2, 1977,
ADDRESSED TO MR. TERRY W. MCCLEARY, CIVILIAN PERSONNEL OFFICER (RESP.
EXH. 1) AND ABOUT 10:30 A.M. ON SEPTEMBER 2, 1977, MR. BARNES WENT,
UNANNOUNCED, TO SEE MRS. KNARR, MS. KILLEN'S IMMEDIATE SUPERVISOR, TO
INFORM HER, MR. BARNES ASSERTED, OF THE CONTENT OF THE LETTER "THE
UNION HAD WRITTEN TO THE CIVILIAN PERSONNEL OFFICE (RESP. EXH. 1)
CONCERNING THE-- MRS. KILLEN'S CONDUCT ON THE PANEL AND HER REFUSAL TO
FOLLOW THE MERIT PROMOTION PLAN AND HOW THIS HAD A DISRUPTIVE EFFECT ON
ME." (TR. 70).
ON OCTOBER 7, 1977, COLONEL CRUM DIRECTED MR. GILBERT G. ENGLE,
CHIEF, SYSTEMS DESIGN AND MAINTENANCE DIVISION, TO INVESTIGATE THE
MATTERS SET FORTH IN MS. KILLEN'S LETTER OF SEPTEMBER 23,1977. MR.
ENGLE PROCEEDED TO DO SO AND FIRST INTERVIEWED MR. BARNES ON OCTOBER
11, 1977; MS. KILLEN, MS. FLEMING AND MS. HOLLIMAN ON OCTOBER 13, 1977.
MR. ENGLE TESTIFIED THAT HE CONCLUDED, ON THE BASIS OF HIS
INVESTIGATION, THAT MS. KILLEN'S DESCRIPTION OF THE INCIDENT WAS
CORRECT; THAT MS. KILLEN HAD FELT INTIMIDATED AND THREATENED BY MR.
BARNES' WORDS AND BEHAVIOR; THAT UNDER PERSONNEL REGULATIONS HE WAS
SHOWN SAID DISRUPTIVE BEHAVIOR WOULD HAVE WARRANTED A SUSPENSION; BUT
THAT HE FELT AN ORAL REPRIMAND WAS APPROPRIATE AND ON OCTOBER 18, 1977,
HE RECOMMENDED TO COLONEL CRUM THAT MR. BARNES BE GIVEN AN ORAL
REPRIMAND. AS NOTED ABOVE, COLONEL CRUM GAVE MR. BARNES AN ORAL
REPRIMAND ON OCTOBER 26, 1977.
IT IS NOT THE FUNCTION OF THE UNFAIR LABOR PRACTICE PROCEDURE TO
INQUIRE INTO PERFORMANCE OF THE MEMBERS OF THE RATING AND RANKING PANEL,
INDEED, IT IS NOT EVEN WITHIN THE PROVINCE OF THIS PROCEEDING TO
QUESTION WHETHER THE ORAL REPRIMAND WAS PROPER OR IMPROPER; BUT,
RATHER, THE SCOPE OF THIS PROCEEDING IS LIMITED TO DETERMINING: (A)
WHETHER RESPONDENT BY SUCH ORAL REPRIMAND, INTERFERED WITH, RESTRAINED,
OR COERCED MR. BARNES IN THE EXERCISE OF THE RIGHTS ASSURED BY THE
ORDER, AND/OR (B) WHETHER RESPONDENT BY SUCH ORAL REPRIMAND ENCOURAGED
OR DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
(I.E. SECTION'S 19(A)(1) AND/OR (2) OF THE ORDER). FOR REASONS MORE
FULLY SET FORTH HEREINAFTER, I FIND THAT RESPONDENT DID NOT VIOLATE
EITHER SECTION 19(A)(1) OR (2) BY ITS ORAL REPRIMAND OF MR. BARNES.
I DID NOT FIND MR. BARNES TO BE A CONVINCING WITNESS. NOT ONLY DID
HIS REPEATED INTERJECTION OF IRRELEVANT COMMENTS CREATE THE IMPRESSION
OF EVASION OF THE QUESTION ASKED; BUT, MORE IMPORTANT, IN SIGNIFICANT
RESPECTS HIS TESTIMONY WAS WHOLLY LACKING IN CREDIBILITY. FOR EXAMPLE,
MR. BARNES STATED THAT THE PURPOSE OF THE REPRIMAND WAS NEVER EXPLAINED;
THAT HE WAS "PROVIDED NOTHING BY ANYONE"; BUT LATER MR. BARNES
ADMITTED THAT MR. ENGLE HAD STATED THE PURPOSE OF HIS INVESTIGATION,
NAMELY, TO INVESTIGATE MR.BARNES' ALLEGED CONDUCT, OR MISCONDUCT, BASED
UPON MRS. KILLEN'S LETTER TO COLONEL CRUM DATED SEPTEMBER 23, 1977;
THAT MR. ENGLE SUMMARIZED WHAT SHE SAID; AND MR. BARNES ADMITTED THAT
HE RECEIVED A COPY OF MS. KILLEN'S LETTER, DATED SEPTEMBER 23, 1977, ON
OCTOBER 19, 1977. MR. BARNES TESTIFIED THAT AT THE MEETING IN COLONEL
CRUM'S OFFICE ON OCTOBER 26, 1977, HE FEARED FOR HIS LIFE. THIS WOULD
HAVE BEEN A HIGHLY IMPROBABLE ASSERTION UNDER ANY CIRCUMSTANCES IN VIEW
OF MR. BARNES' OWN PHYSICAL STATURE (6' 4", 230-235 POUNDS); BUT UNDER
THE ACTUAL CIRCUMSTANCES WAS LUDICROUS IN VIEW OF THE FACT THAT MR.
BARNES WAS ACCOMPANIED BY THREE REPRESENTATIVES, MESSRS. CAMPBELL,
FORBES AND BROWN, AS WELL AS MR. BARNES' CONDUCT AND ACTIONS, INCLUDING
HIS ANNOUNCING, WHEN EVERYONE WAS LEAVING, "HOLD IT, ANOTHER UNION
MEETING" AND THEN PROCEEDING TO READ A STATEMENT IN WHICH HE SAID, INTER
ALIA, THAT HE WOULD GET COLONEL CRUM AND MR. ENGLE FIRED OR RELIEVED.
BY COMPARISON, I FOUND COLONEL CRUM AND MR. ENGLE TO BE VERY CREDIBLE
WITNESSES AND, ACCORDINGLY I FULLY CREDIT THEIR TESTIMONY. THE RECORD
SHOWS THAT MS. KILLEN FIRST WENT TO COLONEL CRUM ON SEPTEMBER 2, 1977;
THAT COLONEL CRUM TOLD HER THAT ANY COMPLAINT WOULD HAVE TO BE MADE IN
WRITING; THAT ANY COMPLAINT FILED WOULD BE INVESTIGATED; BUT HE URGED
MS. KILLEN TO THINK THE MATTER OVER BEFORE TAKING ANY ACTION. MS.
KILLEN, ON SEPTEMBER 23, 1977, WROTE COLONEL CRUM ABOUT MR. BARNES'
CONDUCT; AND ON OCTOBER 7, 1977, COLONEL CRUM INSTRUCTED MR. ENGLE TO
INVESTIGATE THE INCIDENT DESCRIBED IN MS. KILLEN'S LETTER OF SEPTEMBER
23, 1977, WHICH MR. ENGLE PROCEEDED TO DO. THUS, ON OCTOBER 11, 1977,
HE INTERVIEWED MR. BARNES AT WHICH TIME HE EXPLAINED THE PURPOSE OF HIS
INVESTIGATION. ON OCTOBER 13, 1977, MR. ENGLE INTERVIEWED MS. KILLEN,
MS. FLEMING OR MS. HOLLIMAN, ALTHOUGH THE STATEMENT OF MS. HOLLIMAN
(RESP. EXH. 8) WAS INTRODUCED WITHOUT OBJECTION BY COMPLAINANT. WHILE
MR. BARNES TESTIFIED THAT HE TALKED TO MS. FLEMING ON SEPTEMBER 8,
1977, AT WHICH TIME HE STATED THAT MS. FLEMING TOLD HIM SHE HAD NOT BEEN
APPROACHED BY MANAGEMENT; BUT THE INFERENCE BY MR. BARNES THAT MR.
ENGLE DID NOT, IN FACT, INTERVIEW MS. FLEMING IS WITHOUT BASIS SINCE
MR. ENGLE TESTIFIED THAT HE TALKED TO MS. FLEMING ON OCTOBER 13, 1977,
MORE THAN A MONTH AFTER MR. BARNES STATED HIS CONVERSATION HAD TAKEN
PLACE. MS. KILLEN TESTIFIED AND HER TESTIMONY WAS WHOLLY CREDIBLE, IS
CONSISTENT WITH, AND SUPPORTED BY, THE STATEMENT OF MS. HOLLIMAN AND MR.
ENGLE'S TESTIMONY REGARDING HIS INTERVIEW WITH MS. FLEMING.
ON OCTOBER 12, 1977, MR. BARNES ADMITTED THAT HE WENT TO COLONEL
CRUM'S OFFICE TO CONFIRM MR. ENGLE'S HAVING BEEN "TASKED" BY COLONEL
CRUM TO INVESTIGATE. MR. BARNES TESTIFIED THAT HE INFORMED COLONEL
CRUM OF RESPONDENT'S OCTOBER 7, 1977, UNFAIR LABOR PRACTICE CHARGE. I
FULLY CREDIT COLONEL CRUM'S TESTIMONY THAT MR. BARNES STATED THAT HE,
COLONEL CRUM, HAD NO AUTHORITY IN THE CASE THAT THIS WAS HARASSMENT;
THAT HE (COLONEL CRUM) COULD NOT PURSUE THIS MATTER BECAUSE HE (BARNES)
WAS A UNION OFFICER AT WHICH POINT COLONEL CRUM RESPONDED, "MR. BARNES,
I DO NOT AGREE WITH YOU. I DO NOT AGREE THAT YOUR BEING A UNION
OFFICIAL EXCUSES YOU FOR YOUR PERSONAL CONDUCT."
MR. ENGLE SUBMITTED HIS REPORT TO COLONEL CRUM ON OCTOBER 18, 1977,
AND ON OCTOBER 19, 1977, COLONEL CRUM MET WITH MR. BARNES. I FULLY
CREDIT COLONEL CRUM'S TESTIMONY THAT HE TOLD MR. BARNES AT THAT TIME
THAT HE (COLONEL CRUM) WAS ACCUSING HIM (MR. BARNES) OF MISCONDUCT WHICH
MS. KILLEN HAD DESCRIBED IN HER LETTER, A COPY OF WHICH WAS GIVEN TO MR.
BARNES ON OCTOBER 19, 1977; THAT MR. ENGLE HAD INVESTIGATED THE MATTER
AND HAD FOUND THOSE OCCURRENCES HAD OCCURED; AND THAT MR. ENGLE HAD
RECOMMENDED THAT MR. BARNES BE GIVEN AN ORAL REPRIMAND. COLONEL CRUM
FURTHER ADVISED MR. BARNES ON OCTOBER 19, 1977, THAT IF HE HAD ANYTHING
TO SAY IN HIS DEFENSE HE WOULD BE GLAD TO LISTEN; THAT HE COULD SUBMIT
IT IN WRITING OR THAT HE COULD PRESENT IT ORALLY; THAT HE WAS
AUTHORIZED TO HAVE ANYONE OF HIS CHOOSING TO REPRESENT HIM; AND THAT HE
WOULD HAVE TWO DAYS TO RESPOND. BECAUSE OF SCHEDULE CONFLICTS, THE NEXT
MEETING ON THIS MATTER WAS NOT HELD UNTIL OCTOBER 26, 1977. ON OCTOBER
26, 1977, MR. BARNES MET WITH COLONEL CRUM AND BROUGHT WITH HIM THREE
REPRESENTATIVES, MESSRS. CAMPBELL, FORBES AND BROWN. MR. ENGLE WAS ALSO
PRESENT.
MR. ENGLE TESTIFIED THAT COLONEL CRUM WAS QUITE CALM, HIS VOICE WAS
WELL MODULATED, HE WAS NOT ANGRY, HE USED NO STRONG LANGUAGE, AND HE
MADE NO THREATENING REMARKS, GESTURES OR LOOKS. NEITHER MR. CAMPBELL
NOR MR. FORBES TESTIFIED TO THE CONTRARY (MR. BROWN WAS NOT CALLED AS A
WITNESS) AND I CAN ONLY CONCLUDE THAT MR. BARNES' COMMENT THAT COLONEL
CRUM'S EYES WERE "DRIPPING WITH HATE" AND/OR THAT HIS MANNER WAS
"HOSTILE AND THREATENING" WERE BUT FURTHER FIGMENTS OF A FERTILE
IMAGINATION.
THE RECORD CONTAINS NO CREDIBLE EVIDENCE THAT RESPONDENT EITHER
INVESTIGATED MS. KILLEN'S COMPLAINT ABOUT MR. BARNES' CONDUCT ON THE
PANEL ON SEPTEMBER 1, 1977, OR THAT IT GAVE MR. BARNES AN ORAL REPRIMAND
ON OCTOBER 26, 1977, FOR ANY REASON OTHER THAN HIS PERSONAL CONDUCT
TOWARD ANOTHER EMPLOYEE IN THE COURSE OF THE PERFORMANCE OF OFFICIAL
AGENCY BUSINESS. I AM FULLY AWARE THAT MR. BARNES WAS 3RD VICE
PRESIDENT OF LOCAL 909; BUT IN SERVING AS UNION REPRESENTATIVE ON THE
PANEL HE WAS NOT FULFILLING ANY DUTY AS 3RD VICE PRESIDENT, RATHER, HE
WAS, SIMPLY, THE UNION REPRESENTATIVE, OR DESIGNEE, ON THE PANEL. IN
ANY EVENT, HOWEVER, A UNION OFFICIAL IS NOT IMMUNE FROM DISCIPLINE,
DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, LAS VEGAS
CONTROL TOWER, LAS VEGAS, NEVADA, A/SLMR NO. 796, 7 A/SLMR 150(1977),
AND RESPONDENT'S REGULATIONS CLEARLY PROVIDE FOR DISCIPLINE FOR " . . .
CREATING A DISTURBANCE AMONG FELLOW EMPLOYEES, RESULTING IN AN ADVERSE
EFFECT ON MORALE, PRODUCTION, OR MAINTENANCE OF PROPER DISCIPLINE."
(RESP. EXH. 6).
THE REGIONAL ADMINISTRATOR BY HIS LETTER OF OCTOBER 5, 1978,
DISMISSED THE ALLEGATION OF DUAL PROCESSING AND, ACCORDINGLY, THIS ISSUE
IS NOT BEFORE ME. NEVERTHELESS, IT MUST BE NOTED THAT ON SEPTEMBER 2,
1977, IN HIS MEETING WITH MS. KNARR, MR. BARNES ASSERTED THAT HE WAS
ACTING IN HIS CAPACITY AS A UNION OFFICER AND, OF COURSE, THE LETTERS OF
SEPTEMBER 2 AND 15, 1977, WERE SIGNED BY MR. CAMPBELL AS PRESIDENT OF
LOCAL 909. RESPONDENT'S UNFAIR LABOR PRACTICE CHARGE (UNION EXH. 2)
CONCERNED ASSERTED VIOLATIONS OF THE ORDER BY LOCAL 909 PRINCIPALLY AS
THE RESULT OF MR. BARNES' STATEMENTS TO MS. KNARR ON SEPTEMBER 2, 1977,
AND BY THE LETTERS DATED SEPTEMBER 2 AND 15, 1977, SIGNED BY MR.
CAMPBELL AS PRESIDENT OF LOCAL 909, ALTHOUGH REFERENCE WAS MADE TO
CERTAIN ASSERTED STATEMENTS MADE BY MR. BARNES TO MS. KILLEN DURING THE
PANEL PROCEEDINGS ON SEPTEMBER 1, 1977. /8/ I DRAW NO INFERENCE
WHATEVER FROM RESPONDENT'S CHARGE AND/OR ANY SETTLEMENT THEREOF. AS ANY
ALLEGATION OF "DUAL PROCESSING" HAS BEEN DISMISSED BY THE REGIONAL
ADMINISTRATOR, SUCH ISSUE IS NOT BEFORE ME AND HAS NOT BEEN CONSIDERED.
THE PARTIES MUST RECOGNIZE THAT UNILATERAL ACTIONS TAKEN TO ENFORCE
BELIEFS MAY, NEVERTHELESS, VIOLATE RIGHTS ASSURED BY THE ORDER. I DO
NOT CONDONE IN ANY MANNER RESPONDENT'S ACTION, SINCE RESCINDED, TO BAR
MR. BARNES FROM SERVING ON RATING AND RANKING PANELS; BUT, SOLELY
BECAUSE SAID ALLEGATION WAS NOT INCLUDED IN THE COMPLAINT, THIS ISSUE
MAY NOT BE CONSIDERED.
THE RECORD SIMPLY DOES NOT SUPPORT THE ALLEGATION THAT RESPONDENT
INVESTIGATED AND, ON THE BASIS OF ITS INVESTIGATION, ISSUED AN ORAL
REPRIMAND TO MR. BARNES BECAUSE HE WAS A UNION OFFICER, BECAUSE HE WAS A
UNION MEMBER, BECAUSE HE ENGAGED IN ANY RIGHT ASSURED BY THE ORDER, OR
THAT RESPONDENT BY SUCH ORAL REPRIMAND ENCOURAGED OR DISCOURAGED
MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO
HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT.
TO THE CONTRARY, AS NOTED ABOVE, THE RECORD SHOWS ONLY THAT THE
REASON FOR THE ORAL REPRIMAND WAS MR. BARNES' PERSONAL CONDUCT TOWARD
ANOTHER EMPLOYEE IN THE COURSE OF THE PERFORMANCE OF OFFICIAL AGENCY
BUSINESS ON SEPTEMBER 1, 1977. ALTHOUGH MS. KILLEN HAD MADE AN ORAL
STATEMENT TO COLONEL CRUM ON SEPTEMBER 2, 1977, COLONEL CRUM ADVISED MS.
KILLEN TO THINK THE MATTER OVER CAREFULLY BEFORE MAKING A COMPLAINT.
WHEN MS. KILLEN, ON SEPTEMBER 23, 1977, MADE A COMPLAINT, COLONEL CRUM
HAD HER ALLEGATIONS INVESTIGATED. MR. ENGLE CONDUCTED AS THOROUGH AN
INVESTIGATION AS POSSIBLE BY INTERVIEWING EACH PERSON PRESENT. MR.
BARNES STATED THAT HE DECLINED TO COMMENT. BOTH MS. FLEMING AND MS.
HOLLIMAN FULLY SUPPORTED MS. KILLEN'S ASSERTIONS CONCERNING MR. BARNES'
CONDUCT ON SEPTEMBER 1, 1977, AND MR. BARNES' ATTITUDE AND PROCLIVITY
FOR DEMEANING COMMENTS, AS REFLECTED BY HIS TESTIMONY, NOT ONLY DID
NOTHING TO REFUTE THE ALLEGATIONS THAT HIS PERSONAL CONDUCT ON SEPTEMBER
1, 1977, HAD GONE FAR BEYOND THE ACCEPTABLE REALM OF VIGOROUS
DISCUSSION, BUT, INDEED, SHOW THAT THE ASSERTIONS MADE WERE FULLY
CONSISTENT WITH MR. BARNES' CONDUCT IN GENERAL.
ALTHOUGH THE RECORD SHOWS NO SIMILAR DISCIPLINARY ACTION BY
RESPONDENT AGAINST ANY OTHER EMPLOYEE, NEITHER DOES THE RECORD SHOW THAT
ANY OTHER EMPLOYEE HAD EVER ENGAGED IN THE PERSONAL ABUSE OF A PANEL
MEMBER. IT IS ALSO RECOGNIZED THAT MR. BARNES WAS AN OFFICER OF
COMPLAINANT, BUT TO THE EXTENT THAT HIS STATUS AS A UNION OFFICER MAY
GIVE RISE TO A SUSPICION, OR PRESUMPTION, THAT DISCIPLINARY ACTION MAY
HAVE BEEN TAKEN AGAINST HIM BECAUSE OF HIS UNION ACTIVITY, THE CREDIBLE
EVIDENCE AND TESTIMONY OVERWHELMINGLY DEMONSTRATES THAT THE ORAL
REPRIMAND OF MR. BARNES WAS GIVEN SOLELY BECAUSE OF HIS PERSONAL CONDUCT
ON SEPTEMBER 1, 1977, TOWARD A FELLOW MEMBER OF A RATING AND RANKING
PANEL. HAVING FOUND THAT THE ALLEGATIONS THAT THE ORAL REPRIMAND OF MR.
BARNES VIOLATED SECTIONS 19(A)(1) AND (2) OF THE ORDER HAVE NOT BEEN
PROVED BY A PREPONDERANCE OF THE EVIDENCE, I SHALL DISMISS THIS PORTION
OF THE COMPLAINT.
B. THE ALLEGED THREATS ON OCTOBER 12, 19, 21 AND 26, 1977
THE RECORD IS AS BARREN OF EVIDENCE TO SUPPORT THE ALLEGATION OF
ISSUE NO. 2 AS THE COMPLAINT WAS DEFICIENT IN STATING A "CLEAR AND
CONCISE STATEMENT OF THE FACTS" CONSTITUTING A THREAT ON ANY OCCASION.
AS TO OCTOBER 12, 1977, THE RECORD SHOWS THAT MR. BARNES WENT TO COLONEL
CRUM'S OFFICE TO GET CONFIRMATION THAT COLONEL CRUM HAD "TASKED" MR.
ENGLE TO MAKE AN INVESTIGATION. AS PREVIOUSLY NOTED, MR. BARNES
TESTIFIED THAT HE INFORMED COLONEL CRUM OF RESPONDENT'S OCTOBER 7, 1977,
UNFAIR LABOR PRACTICE CHARGE; AND AS PREVIOUSLY STATED, I FULLY CREDIT
COLONEL CRUM'S TESTIMONY THAT MR. BARNES STATED THAT HE, COLONEL CRUM,
HAD NO AUTHORITY IN THE CASE, THAT THIS WAS HARASSMENT, THAT HE (COLONEL
CRUM) COULD NOT PURSUE THE MATTER BECAUSE HE (BARNES) WAS A UNION
OFFICER, AT WHICH POINT COLONEL CRUM RESPONDED, "MR. BARNES I DO NOT
AGREE WITH YOU. I DO NOT AGREE THAT YOUR BEING A UNION OFFICIAL EXCUSES
YOU FOR YOUR PERSONAL CONDUCT." HOWEVER, EVEN ACCEPTING MR. BARNES'
VERSION THAT COLONEL CRUM SAID, "YOU CANNOT HIDE BEHIND UNION ACTIVITIES
FOR YOUR PERSONAL CONDUCT", I FIND NO THREAT IN VIOLATION OF SECTION
19(A)(1) OF THE ORDER FOR MR. BARNES HAVING EXERCISED RIGHTS GUARANTEED
BY THE ORDER.
AS TO OCTOBER 19, 1977, THE RECORD SHOWS THAT COLONEL CRUM MET WITH
MR. BARNES AT WHICH TIME COLONEL CRUM INFORMED MR. BARNES THAT HE WAS
ACCUSING HIM OF MISCONDUCT WHICH MS. KILLEN HAD DESCRIBED IN HER LETTER
OF SEPTEMBER 23, 1977; THAT COLONEL CRUM HAD A COPY OF THE SEPTEMBER
23, 1977, LETTER MADE FOR MR. BARNES, THAT COLONEL CRUM INFORMED MR.
BARNES THAT MR. ENGLE HAD INVESTIGATED THE ALLEGATIONS, HAD FOUND THAT
THOSE OCCURRENCES HAD OCCURED, AND HAD RECOMMENDED THAT MR. BARNES BE
GIVEN AN ORAL REPRIMAND. MR. BARNES LEFT THE MEETING WITH COLONEL CRUM
BRIEFLY AND RETURNED WITH MESSRS. CAMPBELL AND FORBES. DURING THIS
MEETING, COLONEL CRUM ADVISED MR. BARNES THAT IF HE HAD ANYTHING TO SAY
IN HIS DEFENSE HE WOULD BE GLAD TO LISTEN; THAT HE COULD SUBMIT IT IN
WRITING OR THAT HE COULD PRESENT IT ORALLY; THAT HE COULD HAVE ANYONE
OF HIS CHOOSING TO REPRESENT HIM; AND THAT HE WOULD HAVE TWO DAYS TO
RESPOND. AGAIN, I FIND NO THREAT IN VIOLATION OF SECTION 19(A)(1) OF
THE ORDER FOR MR. BARNES HAVING EXERCISED RIGHTS GUARANTEED BY THE
ORDER.
THERE WAS A MEETING ON OCTOBER 21, 1977, AT WHICH MR. BARNES, MR.
CAMPBELL, MR. RAGER AND POSSIBLY MR. FORBES WERE PRESENT FOR COMPLAINANT
AND MR. WOLF, MR. KINGSLEY AND MR. MCCLEARLY WERE PRESENT FOR
RESPONDENT. PRESUMABLY THIS MEETING CONCERNED RESPONDENT'S UNFAIR LABOR
PRACTICE CHARGE, BUT, IN ANY EVENT, THE RECORD CONTAINS NOTHING THAT
COULD POSSIBLY CONSTITUTE A THREAT IN VIOLATION OF SECTION 19(A)(1) OF
THE ORDER FOR MR. BARNES HAVING EXERCISED RIGHTS GUARANTEED BY THE
ORDER.
APPARENTLY, COMPLAINANT ASSERTS THAT THE FACT THAT RESPONDENT
PROCEEDED WITH AN INVESTIGATION OF HIS PERSONAL CONDUCT CONSTITUTED A
"THREAT". FOR REASONS FULLY SET FORTH HEREINABOVE WITH RESPECT TO THE
ORAL REPRIMAND, THE RECORD DOES NOT SUPPORT THE ALLEGATION THAT THE
INVESTIGATION, AND SUBSEQUENT ORAL REPRIMAND, WAS MOTIVATED BY MR.
BARNES' ACTIVITY AS A UNION OFFICER OR BECAUSE HE EXERCISED RIGHTS
GUARANTEED BY THE ORDER. TO THE CONTRARY, THE INVESTIGATION, AND
SUBSEQUENT ORAL REPRIMAND, STEMMED FROM A COMPLAINT BY AN EMPLOYEE
ASSERTING THAT MR. BARNES HAD, AS A FELLOW MEMBER OF A RATING AND
RANKING PANEL AND IN THE COURSE OF PERFORMANCE OF OFFICIAL AGENCY
BUSINESS, ENGAGED IN IMPROPER CONDUCT TOWARD HER. CONFRONTED WITH A
COMPLAINT OF MISCONDUCT, RESPONDENT, ABSENT PROOF OF IMPROPER MOTIVATION
WHICH WAS NOT SHOWN IN THIS CASE, HAD AN OBLIGATION TO INVESTIGATE THE
COMPLAINT. MR. BARNES, ALTHOUGH THE UNION'S DESIGNEE ON THE PANEL, WAS
NOT ACTING IN HIS CAPACITY AS 3RD VICE PRESIDENT OF LOCAL 909 IN SERVING
ON THE PANEL, BUT, EVEN IF HE HAD BEEN ACTING AS A UNION OFFICER, HE WAS
NOT IMMUNE FROM AGENCY DISCIPLINE, DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, LAS VEGAS CONTROL TOWER, LAS VEGAS, NEVADA
A/SLMR NO. 796, 7 A/SLMR 150(1977), AND SECTION 12(B) OF THE ORDER
SPECIFICALLY PROVIDES, IN PART, THAT,
"(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH APPLICABLE
LAWS AND REGULATIONS
* * * *
"(2) . . . TO SUSPEND, DEMOTE, DISCHARGE OR TAKE OTHER DISCIPLINARY
ACTION AGAINST
EMPLOYEES;"
THAT COMPLAINANT, ALBEIT IT PART THROUGH THE ACTION OF MR. BARNES,
ENGAGED IN FURTHER AND ADDITIONAL CONDUCT ASSERTED TO HAVE CONSTITUTED
AN UNFAIR LABOR PRACTICE DOES NOT, STANDING ALONE, RENDER RESPONDENT'S
DISCIPLINARY ACTION AGAINST MR. BARNES IMPROPER. INDEED, THE ALLEGATION
OF "DUAL PROCESSING" WAS DISMISSED BY THE REGIONAL ADMINISTRATOR AND IS
NOT BEFORE ME. THERE IS NO CREDIBLE EVIDENCE OR TESTIMONY OF ANY
IMPROPER MOTIVATION BY RESPONDENT. THE RECORD SHOWS THAT THE COMPLAINT
BY MS. KILLEN CONCERNED MR. BARNES' PERSONAL CONDUCT TOWARD HER AS A
FELLOW MEMBER OF THE PANEL; THAT RESPONDENT RESPONSIBLY INVESTIGATED
THE ALLEGATIONS ASSERTED; THAT ITS INVESTIGATION SHOWED THAT THE
ALLEGATIONS WERE TRUE; AND MR. BARNES WAS INFORMED OF THE ALLEGATIONS
AND THE RESULTS OF THE INVESTIGATION AND WAS GIVEN FULL OPPORTUNITY TO
RESPOND. THERE IS NO CREDIBLE EVIDENCE THAT RESPONDENT ISSUED ITS ORAL
REPRIMAND OF MR. BARNES BECAUSE OF HIS EXERCISE OF ANY RIGHT ASSURED BY
THE ORDER OR TO ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT. TO THE CONTRARY, THE RECORD SHOWS
THAT THE SOLE REASONS FOR THE ACTION TAKEN WAS MR. BARNES' PERSONAL
CONDUCT TOWARD A FELLOW MEMBER OF A RATING AND RANKING PANEL IN THE
COURSE OF PERFORMANCE OF AN OFFICIAL AGENCY DUTY.
FINALLY, AS OF OCTOBER 26, 1977, THE THREAT ALLEGED CONCERNED THE
PLACE MR. BARNES WAS TO SIT. ALTHOUGH I FOUND COLONEL CRUM'S TESTIMONY
CREDIBLE ARE FAR MORE PERSUASIVE AS TO WHAT OCCURRED (SEE TR. 212), EVEN
IF MR. BARNES' TESTIMONY THAT,
"A. WE ALL CAME IN AND STARTED FOR THE TABLE AND HE SAYS, NO, I WANT
YOU TO SIT OVER
HERE. AND I SAID I'M HERE WITH THE PEOPLE, REPRESENTATIVES WHERE I
CAN CONSULT WITH THEM, AND
I WANT TO TAKE NOTES HERE AT THE TABLE. HE SAYS, 'NO, YOU SIT OVER
HERE.'" (TR. 103) IS ACCEPTED, THERE IS NO BASIS TO SUPPORT THE
ALLEGATION THAT RESPONDENT THEREBY THREATENED MR. BARNES FOR EXERCISING
ANY RIGHT GUARANTEED BY THE ORDER.
AS I HAVE FOUND THE ALLEGATION AS TO ISSUE NO. 2 TO BE WITHOUT
SUPPORT IN THE RECORD, I SHALL DISMISS THIS PORTION OF THE COMPLAINT.
RECOMMENDATION
HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CERTAIN CONDUCT
PROHIBITED BY SECTIONS 19(A)(1) AND (2) OF EXECUTIVE ORDER 11491, AS
AMENDED, AND HAVING FOUND THAT NO ALLEGATION CONCERNING RESPONDENT'S
LETTER OF SEPTEMBER 1, 1977, IN VIOLATION OF SECTIONS 19(A)(1) AND (3)
WAS INCLUDED IN THE COMPLAINT, I RECOMMEND THAT THE COMPLAINT HEREIN BE
DISMISSED IN ITS ENTIRETY.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 6, 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/ IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY
ADOPTS CRUM'S CREDITED VERSION OF THE CIRCUMSTANCES SURROUNDING BARNES'
REPRIMAND AND THEREFORE FINDS IT UNNECESSARY TO PASS ON THE COMMENT AT
P. 13 OF THE RECOMMENDED DECISION AND ORDER THAT EVEN IF BARNES' VERSION
WERE ACCEPTED, THERE WOULD BE NO BASIS FOR A VIOLATION.
/3/ DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
WASHINGTON, 2 FLRA NO. 7(1979). SEE ALSO U.S. SMALL BUSINESS
ADMINISTRATION, CENTRAL OFFICE, WASHINGTON, D.C., 6 A/SLMR 157, A/SLMR
NO. 631(1976).
/4/ THE REGIONAL DIRECTOR'S LETTER OF OCTOBER 5, 1978, WAS
INADVERTENTLY OMITTED AS A FORMAL DOCUMENT. ACCORDINGLY, I HAVE MARKED
IT AS ALJ EXH. 5 AND ALJ EXH. 5 IS HEREBY INCORPORATED AS PART OF THE
RECORD.
/4A/ THE REGIONAL ADMINISTRATOR IN HIS LETTER OF OCTOBER 5, 1978,
SPECIFICALLY REFERRED TO ALLEGATIONS 1, 2 AND 7 (OF THE CHARGE AND NOT
THE COMPLAINT) AND PRESUMABLY INFERRED THAT ALLEGATION 7 SUPPORTED HIS
ISSUE NO. 3; BUT NO SUCH ALLEGATION, OR BASIS, IS TO BE FOUND IN
ALLEGATION NO. 7 OF THE CHARGE. NEITHER IS SUCH ALLEGATION, OR BASIS,
IN ALLEGATIONS 1 OR 2 OF THE CHARGE NOR IN THE COMPLAINT.
/5/ WHILE NOT DISPOSITIVE OF A PROPER UNFAIR LABOR PRACTICE
ALLEGATION, THE RECORD SHOWS:
A) COMPLAINANT'S PRESIDENT TESTIFIED THAT HE "DISREGARDED COMPLETELY"
THE LETTER OF
SEPTEMBER 1, 1977; AND
B) RESPONDENT HAS WITHDRAWN ITS OBJECTION TO MR. BARNES SITTING ON
FUTURE PANELS
(RESP. EXH. 15 AND 15-A).
/6/ BY CONTRAST, ISSUE NO. 3, DISCUSSED ABOVE, WAS NOT INCLUDED IN
THE CHARGE; WAS NOT, OF COURSE, INCLUDED IN ANY OF THE EIGHT "SPECIFIC
INSTANCES" ALLEGED IN THE CHARGE; AND NOT HAVING BEEN ALLEGED,
RESPONDENT COULD SCARCELY RESPOND TO AN ALLEGATION NOT MADE. (SEE,
RESPONDENT'S LETTER DATED JUNE 9, 1978, IN RESPONSE TO THE COMPLAINT.
ALJ EXH. 1).
/7/ ARTICLE VII, SECTION 3, OF THE PARTIES' CURRENT AGREEMENT, SIGNED
SEPTEMBER 14, 1977 (UNION EXH. 1), IS SUBSTANTIALLY IDENTICAL AND THE
SLIGHT CHANGE IS NOT MATERIAL TO THIS PROCEEDING.
/8/ UNION EXHIBIT 3 WAS RECEIVED WITHOUT OBJECTION, HOWEVER, THIS
DOCUMENT WAS NOT FURNISHED TO THE REPORTER AND, ACCORDINGLY, IS NOT IN
THE EXHIBIT FILE. THIS DOCUMENT, DATED AUGUST 30, 1978, WAS ENTITLED
"WITHDRAWAL OF NOTICE OF HEARING, APPROVAL REQUEST FOR WITHDRAWAL OF THE
CHARGE."