Philadelphia Naval Shipyard (Respondent) and Philadelphia Metal Trades Council (Complainant)
[ v04 p255 ]
04:0255(38)CA
The decision of the Authority follows:
4 FLRA No. 38
PHILADELPHIA NAVAL SHIPYARD
Respondent
and
PHILADELPHIA METAL TRADES COUNCIL
Complainant
Case Nos. 3-CA-29
3-CA-57
3-CA-300
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
AMENDED, AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
U.S.C. 7101-7135) AS ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS SET
FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION
AND ORDER. THE GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER, BUT NO EXCEPTIONS THERETO
WERE FILED BY THE RESPONDENT.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTIONS 2400.2 AND 2423.29 OF THE AUTHORITY'S
RULES AND REGULATIONS AND SECTIONS 7118 AND 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, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, AND NOTING
PARTICULARLY THAT NO EXCEPTIONS WERE FILED BY THE RESPONDENT, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED BELOW.
WHILE THE ADMINISTRATIVE LAW JUDGE FOUND, AMONG OTHER THINGS, THAT
THE RESPONDENT VIOLATED SECTION 19(A)(1) AND (6) OF EXECUTIVE ORDER
11491, AS AMENDED, AND SECTION 7116(A)(1) AND (5) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, BY REFUSING TO MEET WITH THE
COMPLAINANT OFF THE BASE SO THAT COMPLAINANT'S CHIEF NEGOTIATOR COULD
ENTER INTO NEGOTIATIONS WITH MANAGEMENT, HIS RECOMMENDED ORDER DID NOT
INCLUDE A SPECIFIC REMEDY FOR SUCH VIOLATION. ACCORDINGLY, THE ORDER IS
AMENDED HEREIN TO SO PROVIDE.
ORDER
PURSUANT TO SECTIONS 2400.2 AND 2423.29 OF THE FEDERAL LABOR
RELATIONS AUTHORITY'S REGULATIONS AND SECTIONS 7118 AND 7135 OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE FEDERAL LABOR
RELATIONS AUTHORITY ORDERS THAT THE PHILADELPHIA NAVAL SHIPYARD,
PHILADELPHIA, PENNSYLVANIA SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR DENYING JOSEPH P. CARSON, OR ANY OTHER DULY
AUTHORIZED UNION REPRESENTATIVE, ACCESS AND ENTRY TO THE PHILADELPHIA
NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA, IN ORDER TO
CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND TO
CONDUCT BUSINESS OR MEET WITH MANAGEMENT ON BEHALF OF THE PHILADELPHIA
METAL TRADES COUNCIL.
(B) REFUSING TO MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL BY DENYING ACCESS AND ENTRY TO JOSEPH P. CARSON TO
THE PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL
AREA, IN ORDER TO REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND
TO CONDUCT BUSINESS OR MEET WITH MANAGEMENT ON BEHALF OF THE
PHILADELPHIA METAL TRADES COUNCIL.
(C) REFUSING TO MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL OFF THE BASE SO THAT NEGOTIATOR JOSEPH P. CARSON,
OR ANY OTHER DULY AUTHORIZED UNION REPRESENTATIVE, MAY ENTER INTO
NEGOTIATIONS WITH MANAGEMENT.
(D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE 11491, AS AMENDED, AND THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE:
(A) ALLOW AND PERMIT JOSEPH P. CARSON, OR ANY OTHER DULY AUTHORIZED
UNION REPRESENTATIVE, TO ENTER, AND GAIN ACCESS TO THE PHILADELPHIA
NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA, IN ORDER TO
REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND TO CONDUCT
BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF OF THE PHILADELPHIA METAL
TRADES COUNCIL.
(B) UPON REQUEST MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADE COUNCIL BY ALLOWING REPRESENTATIVE JOSEPH P. CARSON, OR ANY
OTHER DULY AUTHORIZED UNION REPRESENTATIVE, TO ENTER AND GAIN ACCESS TO
THE PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL
AREA, IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR
GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF
OF THE PHILADELPHIA METAL TRADES COUNCIL.
(C) UPON REQUEST MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL OFF THE BASE SO THAT NEGOTIATOR JOSEPH P. CARSON,
OR ANY OTHER DULY AUTHORIZED UNION REPRESENTATIVE, MAY ENTER INTO
NEGOTIATIONS WITH MANAGEMENT.
(D) POST AT ITS FACILITY AT THE PHILADELPHIA NAVAL SHIPYARD,
PHILADELPHIA, PENNSYLVANIA, 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
COMMANDANT OF THE PHILADELPHIA NAVAL BASE, AND THEY SHALL BE POSTED FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDANT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(E) 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.
ISSUED, WASHINGTON, D.C., SEPTEMBER 26, 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 REFUSE OR DENY JOSEPH P. CARSON, OR ANY OTHER DULY
AUTHORIZED UNION REPRESENTATIVE, ACCESS AND ENTRY TO THE PHILADELPHIA
NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA, IN ORDER TO
CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND TO
CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF OF THE PHILADELPHIA
METAL TRADES COUNCIL.
WE WILL NOT REFUSE TO MEET, CONFER AND NEGOTIATE WITH THE
PHILADELPHIA METAL TRADES COUNCIL BY REFUSING OR DENYING JOSEPH P.
CARSON, OR ANY OTHER DULY AUTHORIZED UNION REPRESENTATIVE, ACCESS AND
ENTRY TO THE PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED
INDUSTRIAL AREA, IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES
CONCERNING THEIR GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH
MANAGEMENT, ON BEHALF OF THE PHILADELPHIA METAL TRADES COUNCIL.
WE WILL NOT REFUSE TO MEET, CONFER AND NEGOTIATE WITH THE
PHILADELPHIA METAL TRADES COUNCIL OFF THE BASE SO THAT NEGOTIATOR JOSEPH
P. CARSON, OR ANY OTHER DULY AUTHORIZED UNION REPRESENTATIVE, MAY ENTER
INTO NEGOTIATIONS WITH MANAGEMENT.
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, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL ALLOW AND PERMIT JOSEPH P. CARSON, OR ANY OTHER DULY
AUTHORIZED UNION REPRESENTATIVE, TO ENTER AND GAIN ACCESS TO THE
PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA,
IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR
GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF
OF THE PHILADELPHIA METAL TRADES COUNCIL.
WE WILL UPON REQUEST MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL BY ALLOWING AND PERMITTING JOSEPH P. CARSON, OR ANY
OTHER DULY AUTHORIZED REPRESENTATIVE, TO ENTER AND GAIN ACCESS TO THE
PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA,
IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR
GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF
OF THE PHILADELPHIA METAL TRADES COUNCIL.
WE WILL UPON REQUEST MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL OFF THE BASE SO THAT NEGOTIATOR JOSEPH P. CARSON,
OR ANY OTHER DULY AUTHORIZED UNION REPRESENTATIVE, MAY ENTER INTO
NEGOTIATIONS WITH MANAGEMENT.
PHILADELPHIA NAVAL SHIPYARD
DATED: . . . BY:
(BASE COMMANDER)
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, REGION 3, WHOSE
ADDRESS IS: 1133 15TH STREET, NW., ROOM 300, WASHINGTON, D.C. 20005,
AND WHOSE TELEPHONE NUMBER IS (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOSEPH J. DALLAS
LABOR RELATIONS ADVISOR
NAVAL CIVILIAN PERSONNEL COMMAND
NORTHERN FIELD DISTRICT, BLDG. 75
NAVAL BASE
PHILADELPHIA, PA 19112
STEWART FAWST, ESQUIRE
ASSISTANT DIRECTOR, LABOR RELATIONS
DEPARTMENT OF DEFENSE
WASHINGTON, D.C.
FOR THE RESPONDENTS
PETER B. ROBB, ESQUIRE
HEATHER B. GOTTS, ESQUIRE
COUNSEL FOR THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
1730 K STREET, N.W., SUITE 401
WASHINGTON, D.C. 20006
FOR THE COMPLAINANT
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO AN ORDER CONSOLIDATING CASES, COMPLAINT AND A NOTICE OF
HEARING ISSUED BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS
AUTHORITY, REGION III, ON SEPTEMBER 17, 1979, A HEARING WAS HELD BEFORE
THE UNDERSIGNED ON NOVEMBER 13 & 14, 1979 AT PHILADELPHIA, PENNSYLVANIA.
CASES 3-CA-29 AND 3-CA-57 AROSE UNDER EXECUTIVE ORDER 11491, AS
AMENDED (HEREIN CALLED THE ORDER) BASED UPON RESPECTIVE COMPLAINTS FILED
ON FEBRUARY 2 AND MARCH 9, 1979. BOTH COMPLAINTS WERE FILED UNDER THE
ORDER BY THE PHILADELPHIA METAL TRADES COUNCIL (MTC) AGAINST THE
PHILADELPHIA NAVAL SHIPYARD (HEREIN CALLED THE RESPONDENT). IT WAS
ALLEGED THAT, SINCE DECEMBER 5, 1978, RESPONDENT VIOLATED SECTIONS
19(A)(1)(5) AND (6) OF THE ORDER BY: (A) DETAINING JOSEPH P. CARSON
WHILE ON UNION BUSINESS; (B) HARASSING THE SAID CARSON BECAUSE OF HIS
UNION ACTIVITIES ON BEHALF OF MTC; (C) ENGAGING IN SURVEILLANCE OF
CARSON WHILE THE SAID UNION OFFICIAL WAS ENGAGED IN UNION BUSINESS. IT
WAS FURTHER ALLEGED THAT RESPONDENT VIOLATED SAID SECTIONS OF THE ORDER
BY BANNING CARSON FROM THE PREMISES SINCE DECEMBER 7, 1978 DUE TO HIS
UNIONISM, AS WELL AS DENYING CARSON'S REQUEST FOR A PERMANENT VISITOR'S
PASS DUE TO HIS UNION ACTIVITIES. /1/
CASE NO. 3-CA-300 AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1215, (HEREIN CALLED THE ACT). IN THIS CASE
MTC FILED A CHARGE ON JUNE 22, 1979 AGAINST THE DEPARTMENT OF NAVY
ALLEGING VIOLATIONS OF SECTIONS 7116(A)(1)(5) AND (8) OF THE ACT BY
REFUSING TO BARGAIN WITH MTC. IT WAS ALLEGED, IN THIS RESPECT, THAT
RESPONDENT BANNED MTC CHIEF NEGOTIATOR, CARSON, FROM THE PREMISES DURING
CONTRACT NEGOTIATIONS BETWEEN MTC AND RESPONDENT.
THE COMPLAINT HEREIN, UPON WHICH THIS PROCEEDING IS BASED, ALLEGED
THAT THE NAVAL SHIPYARD, SINCE ON OR ABOUT DECEMBER 11, 1978, REFUSED TO
BARGAIN IN GOOD FAITH WITH THE PHILADELPHIA METAL TRADES COUNCIL (HEREIN
CALLED MTC OR THE UNION) BY: (A) REFUSING JOSEPH P. CARSON, SHOP
STEWARD AND CHIEF NEGOTIATOR FOR MTC, ACCESS TO RESPONDENT'S CONTROLLED
INDUSTRIAL AREA SINCE ABOUT DECEMBER 11, 1978; (B) REFUSING TO GRANT
THE SAID CARSON A PERMANENT VISITOR'S BADGE TO THE PHILADELPHIA, PA
LOCATION SINCE JANUARY 12, 1979; (C) REFUSING TO GRANT CARSON ACCESS TO
SUCH LOCATION SINCE JUNE 6, 1979-- ALL IN VIOLATION OF SECTIONS 19(A)(1)
AND (6) OF THE ORDER AND SECTIONS 7116(A)(1), (5) AND (8) OF THE ACT.
RESPONDENT DULY FILED AN ANSWER TO THE COMPLAINT WHICH, IN SUBSTANCE,
DENIED THAT IT REFUSED TO BARGAIN IN GOOD FAITH WITH MTC AND ALLEGED
THAT CARSON WAS BARRED ACCESS TO THE CONTROLLED INDUSTRIAL AREA, AS WELL
AS THE SHIPYARD, BECAUSE HE VIOLATED SECURITY REGULATIONS.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. THEY WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL
AS CROSS EXAMINE WITNESSES. THEREAFTER, A BRIEF WAS FILED BY THE
GENERAL COUNSEL WHICH HAS BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN, THE PHILADELPHIA METAL TRADES
COUNCIL (MTC) HAS BEEN, AND STILL IS, THE COLLECTIVE BARGAINING
REPRESENTATIVE OF ALL NON-SUPERVISORY UNGRADED EMPLOYEES OF THE
RESPONDENT PHILADELPHIA NAVAL SHIPYARD. MTC IS COMPOSED OF 17
AFFILIATES FROM VARIOUS INTERNATIONAL UNIONS. THE PRESIDENT OF EACH
AFFILIATE IS A MEMBER OF THE EXECUTIVE BOARD OF MTC.
2. BOTH THE RESPONDENT AND MTC WERE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT WHICH COVERED THE UNIT EMPLOYEES AND BECAME
EFFECTIVE, BY ITS TERMS, ON FEBRUARY 8, 1974 FOR A PERIOD OF TWO YEARS.
THE PARTIES HAVE CONTINUED TO OPERATE UNDER AND ABIDE BY, THE PROVISIONS
OF SAID AGREEMENT SINCE ITS EXPIRATION.
3. SINCE 1977 MTC AND RESPONDENT HAVE BEEN ACTIVELY ENGAGED IN
NEGOTIATIONS TOWARD A NEW AGREEMENT. THE PRINCIPAL NEGOTIATORS FOR MTC
WERE JOSEPH P. CARSON, FRANK MCHALE, PRESIDENT OF LOCAL 97 SHEET METAL
WORKERS, JOHN BERGEN, PRESIDENT OF MTC, AND SID SIMONS, FORMER
VICE-PRESIDENT OF MTC AND A RETIRED EMPLOYEE OF THE SHIPYARD.
4. CARSON WAS EMPLOYED BY RESPONDENT FROM 1965 UNTIL ABOUT MAY 1,
1978 WHEN HE RETIRED FROM EMPLOYMENT. UNTIL JANUARY 1, 1979 CARSON WAS
PRESIDENT OF LOCAL 687, INTERNATIONAL ASSOCIATION OF MACHINISTS. AT THE
PRESENT TIME HE IS VICE-PRESIDENT AND CHIEF STEWARD THEREOF. IN
ADDITION TO ACTIVELY PARTICIPATING IN CONTRACT NEGOTIATIONS WITH
RESPONDENT, THIS UNION REPRESENTATIVE REPRESENTED AND CONTINUES TO
REPRESENT, EMPLOYEES IN CONNECTION WITH MANY GRIEVANCES AGAINST
MANAGEMENT AS WELL AS EEO COMPLAINTS LODGED AGAINST THE SHIPYARD.
5. DURING 1978 MTC AND RESPONDENT REACHED A TENTATIVE AGREEMENT
SUBJECT TO RATIFICATION BY THE UNION MEMBERSHIP. THE NEGOTIATING
COMMITTEE REPRESENTING MTC SPLIT IN THEIR ENDORSEMENT OF THE AGREEMENT:
MCHALE AND CARSON RECOMMENDED THAT THE MEMBERSHIP DISAPPROVE IT,
WHEREAS
THE OTHER TWO MTC REPRESENTATIVES FAVORED ITS ADOPTION. CARSON SPOKE TO
SEVERAL GROUPS, AND AT VARIOUS SESSIONS, WHEREAT HE EXPRESSED
DISAPPROVAL THEREOF. IN OCTOBER, 1978, THE UNION MEMBERSHIP VOTED TO
REJECT THE PROPOSED CONTRACT.
6. THE CONTROLLED INDUSTRIES AREA (CIA) WITHIN THE SHIPYARD IS A
HIGH SECURITY AREA WHICH REQUIRES EMPLOYEES WORKING THEREIN TO DISPLAY A
RED OR YELLOW BADGE. THE FOUNDRY, BUILDING 20, IS LOCATED WITHIN SUCH
AREA. IT IS A CLASSIFIED SECURITY AREA AND ITS EMPLOYEES ARE REQUIRED
TO HAVE A RED BADGE.
7. VISITORS WHO APPEAR AT THE SHIPYARD ARE, IF ACKNOWLEDGED, ISSUED
DAILY PASSES BEFORE GOING TO VARIOUS AREAS ON THE BASE. THE PASS OFFICE
IS LOCATED IN BUILDING 501 OUTSIDE THE MAIN GATE OF THE BASE. A VISITOR
FILLS OUT A PASS, CONSISTING OF THE ORIGINAL AND A CARBON COPY, WITH
DETAILS SUCH AS HIS NAME AND ADDRESS, THE DATE, DESTINATION, ETC. THE
CLERK INITIALS THE PASS AND STAMPS THE ORIGINAL WITH THE WORK
"INDUSTRIAL" OR "ESCORTED" IF A SECURITY AREA IS BEING ATTENDED, AND HE
RETURNS THE ORIGINAL PASS TO THE VISITOR. HE RETAINS THE COPY, AND THE
ORIGINAL SHOULD BE RETURNED TO THE OFFICE BY THE VISITOR AFTER IT IS
USED AT THE COMPLETION OF THE VISIT. THE CLERK USUALLY ANNOUNCES THE
ARRIVAL OF THE VISITOR AND ARRANGES AN ESCORT IF ONE IS REQUIRED.
8. RESPONDENTS INSTRUCTION 5512.8, CH 2, CONSISTS OF REGULATIONS AS
TO THE CONTROLLED INDUSTRIAL AREA. PARAGRAPH 8 ON PAGE 9 PROVIDES,
INTER ALIA, AS FOLLOWS:
"ESCORTS. UNBADGED PERSONS MAY ENTER THE CIA PROVIDED THEY ARE ON
OFFICIAL BUSINESS, HAVE
A LEGITIMATE NEED TO ENTER OR ARE BONA FIDE GUESTS AND ARE CONSTANTLY
ESCORTED BY ANY
'CIA' BADGED MILITARY OR SHIPYARD CIVILIAN PERSONNEL AUTHORIZED BY
DEPARTMENT/OFFICE AND
DIVISION HEADS. ESCORTS MUST BE MAINTAINED UNTIL THE VISITOR EXISTS
THE CIA . . . "
9. SEVERAL MANAGEMENT OFFICIALS TESTIFIED THAT A VISITOR WHO OBTAINS
A PASS TO VISIT THE CIA MUST STILL BE ESCORTED. JOSEPH H. BOWEN,
CAPTAIN OF DETECTIVES AT THE SHIPYARD, TESTIFIED THAT IF A PASS IS
STAMPED "INDUSTRIAL" THE BEARER MAY VISIT THE CIA WITHOUT AN ESCORT.
CARSON TESTIFIED THAT, IN THE PAST, WHEN HIS PASS WAS STAMPED
"INDUSTRIAL" HE ATTENDED TO DUTIES WITH THE CIA MANY TIMES WITHOUT
BENEFIT OR NEED OF AN ESCORT. IN THE EVENT THE PASS WAS STAMPED
"ESCORTED," CARSON MAINTAINS HE OBTAINED THE SERVICES OF SOMEONE FROM
THE MTC OFFICE TO ESCORT HIM AT THE CIA. MCHALE, WHO WORKS IN A RED
BADGE AREA, TESTIFIED THAT HE HAS OBSERVED INDIVIDUALS IN SAID AREA
WITHOUT SUCH A BADGE AND THEY WERE NOT CHALLENGED. RICHARD BRADLEY,
SUPERINTENDENT OF SHOP 81, TESTIFIED THAT SEVERAL YEARS AGO HE REMOVED A
SALESMAN FROM THE SECURITY AREA FOR NOT HAVING A BADGE. CAPTAIN PIERCE,
COMMANDER OF THE SHIPYARD, TESTIFIED THAT IN APRIL, 1979 HE EXCLUDED AN
INDIVIDUAL FROM THE CIA WHO PRETENDED TO BE A SHOP WORKER BUT WAS, IN
FACT, A CONTRACT JANITORIAL EMPLOYEE WITHOUT IDENTIFICATION.
10. CARSON TESTIFIED, AND I FIND THAT, IN ACCORD WITH PREVIOUS
ARRANGEMENTS, HE VISITED THE SHIPYARD ON DECEMBER 5, 1978 TO REPRESENT
EMPLOYEE GORDON EMBERGER WHO WORKS IN BUILDING 20 (CIA) AS A METAL
INSPECTOR. A GRIEVANCE MEETING WAS SCHEDULED FOR THAT MORNING. CARSON
ARRIVED ABOUT 7:00 A.M., WENT TO THE PASS OFFICE, AND FILLED OUT A PASS
WHICH WAS STAMPED "INDUSTRIAL" /2/ BY THE CLERK. THE UNION
REPRESENTATIVE PROCEEDED TO THE MTC OFFICE. HE MET WITH MCHALE WHO
DROVE CARSON TO THE FOUNDRY IN BUILDING 20. A GRIEVANCE MEETING WAS
HELD WITH SUPERVISORS SKERILLO AND DOBROWALSKI AS WELL AS EMPLOYEE
EMBERGER.
11. SUBSEQUENT TO THE AFORESAID GRIEVANCE DISCUSSION, CARSON AND
EMBERGER WALKED THROUGH THE FOUNDRY EN ROUTE TO THE MTC OFFICE. CARSON
STOPPED TO USE AN AIR HOSE TO BLOW OFF MUD FROM HIS SHOES AND EMBERGER
CONTINUED ONWARD. AT THIS POINT IN TIME SUPERINTENDENT BRADLEY
CONFRONTED CARSON AND ASKED TO SEE HIS PASS. /3/ THE SUPERVISOR STATED
HE WAS TOLD TO CHALLENGE CARSON WHENEVER THE LATTER APPEARED BEFORE HIM.
UPON BEING SHOWN THE PASS, BRADLEY INQUIRED AS TO THE WHEREABOUTS OF
THE REPRESENTATIVE'S ESCORT. CARSON REPLIED HE DIDN'T NEED AN ESCORT
SINCE THE PASS WAS STAMPED "INDUSTRIAL." HE ADDED, HOWEVER, THAT HIS
ESCORT WAS "OVER THERE GOING OUT," AND AT THE SAME TIME CARSON POINTED
TO EMBERGER WHO WAS POSITIONED ABOUT 20-50 FEET AHEAD. BRADLEY TOOK
CARSON INTO THE OFFICE WHERE SUPERINTENDENT GALLONE REMARKED THAT THE
UNION OFFICIAL NEEDED AN ESCORT. CARSON REPEATED HIS REMARK THAT HE HAD
AN ESCORT, AND INFORMED GALLONE THEY HAD BEEN EN ROUTE TO THE MTC
OFFICE. THE SUPERINTENDENT REPLIED HE COULDN'T HAVE CARSON WANDERING
AROUND. HE THEN DISPATCHED A CLERK TO ACCOMPANY CARSON TO THE UNION
BUILDING. NO MANAGEMENT OFFICIAL CONTACTED EMBERGER IN RE THE INCIDENT.
THE EMPLOYEE TESTIFIED HE WAS ESCORTING CARSON, ALTHOUGH NOBODY
DESIGNATED EMBERGER AS AN OFFICIAL ESCORT.
12. ON DECEMBER 7 RICHARD R. BRITT, HEAD OF EMPLOYER RELATIONS AT
THE SHIPYARD, WROTE A MEMO TO THE YARD POLICE WHICH STATED THAT CARSON
WAS NOT TO BE ADMITTED TO THE SHIPYARD UNDER ANY CIRCUMSTANCES. /4/
THIS INSTRUCTION WAS BASED ON A REPORT RECEIVED FROM GALLONE THAT CARSON
HAD BEEN FOUND IN A RED BADGE AREA WITHOUT AN ESCORT.
13. BETWEEN DECEMBER 8, 1978 AND MAY 8, 1979 CARSON WAS PERMITTED TO
ENTER THE BASE, BUT HE WAS EXCLUDED FROM THE CIA. HIS EFFORTS TO MEET
WITH THE WORKERS' COMMITTEE WERE HAMPERED SINCE MEETINGS HAD TO BE HELD
BEFORE OR AFTER WORKING HOURS, OR AT LUNCH. MOREOVER, HIS EXCLUSION
REDUCED THE NUMBER OF EMPLOYEES CARSON WOULD EFFECTIVELY REPRESENT AT
GRIEVANCE SESSIONS.
14. SUBSEQUENT TO BANNING CARSON FROM CIA, BRITT ORDERED AN
INVESTIGATION TO BE CONDUCTED AS TO THE DECEMBER 5, 1978 INCIDENT. A
REPORT WAS ISSUED BY DETECTIVE CAPTAIN JOSEPH H. BOWEN ON JANUARY 15,
1979 FINDING THAT CARSON HAD NO PASS ON DECEMBER 5 AND THUS VIOLATED
SECURITY REGULATIONS. THE REPORT CONTAINS NO STATEMENTS FROM EITHER
CARSON OR EMBERGER, NOR DOES IT INDICATE THAT BOWEN SPOKE TO EITHER
INDIVIDUAL.
15. FOLLOWING HIS BEING BARRED FROM CIA, CARSON WROTE SEVERAL
LETTERS TO CAPTAIN PIERCE REQUESTING A VISITOR'S PASS TO THE CIA IN
ORDER TO CARRY OUT HIS DUTIES AS A CHIEF NEGOTIATOR FOR MTC. NONE OF
THESE REQUESTS WAS HONORED AND CARSON WAS REFUSED ENTRY TO THE CIA.
16. IN ABOUT LATE APRIL, 1979 CARSON ATTENDED A GRIEVANCE MEETING ON
BEHALF OF A YARD EMPLOYEE. HE LEFT HIS BRIEFCASE ON THE PREMISES UPON
DEPARTURE, AND THE ITEM WAS FOUND BY SARA MORVANT, SUPERVISOR OF
EMPLOYEE RELATIONS. UPON OPENING THE CASE, MORVANT DISCOVERED IT
CONTAINED A BOOK OF BLANK PASSES. THE BRIEFCASE AND ITS CONTENTS WERE
RETURNED TO CARSON. SUBSEQUENTLY THE LATTER INDIVIDUAL WAS INTERROGATED
WITH RESPECT THERETO BY DETECTIVE BOWEN. CARSON ADMITTED THE PASSES HAD
BEEN IN HIS POSSESSION, THOUGHT HE DID NOT HAVE THEM AT THAT MOMENT.
/5/
17. RECORD FACTS DISCLOSE THAT THE BOOK OF PASSES HAD BEEN GIVEN TO
CARSON BY A CLERK IN THE PASS OFFICE; THAT CARSON USED THEM SO AS TO
AVOID STANDING IN LINE AND THUS SAVE TIME; THAT HE TYPED IN THE BLANK
SPACES THE REQUIRED INFORMATION AND THEN XEROXED COPIES TO HAVE ON HAND
FOR FUTURE VISITS TO THE BASE.
18. ON MAY 8, 1979 DETECTIVE BOWEN HANDED CARSON A NOTICE EXPELLING
THE LATTER FROM THE ENTIRE NAVAL BASE. CAPTAIN JOSEPHSON, COMMANDANT OF
THE NAVAL BASE ALSO WROTE A LETTER, DATED MAY 9, 1979, TO MTC PRESIDENT
REIL NOTIFYING HIM THAT CARSON WAS SO EXPELLED UNTIL CARSON AGREED TO
CONFORM TO BASE REGULATIONS AND UNTIL CAPTAIN PIERCE REQUESTED THE
EXPULSION ORDER TO RESCINDED. /6/
19. SUBSEQUENT TO MAY 9, 1979 CARSON HAS REQUESTED PERMISSION TO
VISIT THE BASE IN ORDER TO REPRESENT EMPLOYEES AND CARRY ON HIS DUTIES
AS A UNION REPRESENTATIVE. ALL SUCH REQUESTS HAVE BEEN DENIED BY
MANAGEMENT. CONTRACT NEGOTIATIONS HAVE BEEN STALLED SINCE THAT DATE, AND
RESPONDENT HAS REFUSED TO HONOR THE UNION REQUEST TO MEET OUTSIDE THE
SHIPYARD AND CONDUCT BARGAINING SESSIONS THEREAT.
20. RECORD FACTS DISCLOSE THAT RESPONDENT HAD, IN PAST YEARS, ISSUED
SEVERAL PERMANENT VISITOR'S PASSES TO RETIRED INDIVIDUALS. IN JUNE,
1969 MTC REPRESENTATIVE SIMONS, WHO HAD RECEIVED SUCH A PASS AND
CONTINUED TO KEEP SUCH WHEN HE RETIRED IN 1972, WAS TOLD BY CHIEF OF
POLICE THOM THAT HIS PASS WAS ILLEGALLY RETAINED. THOMS MENTIONED THAT
ALL PASSES HELD BY RETIREES WERE BEING WITHDRAWN; THAT A UNFAIR LABOR
PRACTICE CHARGE WHICH INVOLVED CARSON HAD BEEN FILED; THAT NO SUCH
PASSES COULD BE HELD BY THE RETIREES UNTIL THE CHARGE WAS RESOLVED; AND
THAT, THEREAFTER, SUCH A PASS WOULD BE REISSUED TO SIMONS. WHEN THE
LATTER ASKED THOM IF HE WOULD RETAIN THE PASS FOR SEVERAL DAYS PENDING A
DISCUSSION WITH CAPTAIN PIERCE, THE CHIEF OF POLICE REPLIED HE HAD TO
TAKE THE PASS AT THAT TIME SINCE "IT WAS A HOT POTATO."
21. THEREAFTER SIMONS SPOKE TO BRITT AND ADVISED THE LATTER HE WOULD
NOT SERVICE THE UNIONS "WITHOUT GOING THROU8H," THAT HE NEEDED A PASS TO
PERFORM HIS DUTIES AS AN INTERNATIONAL REPRESENTATIVE AND BUSINESS
AGENT. BRITT REPLIED HE COULD NOT HONOR SIMONS' REQUEST IN THIS REGARD.
CONCLUSIONS
THE PRINCIPAL ISSUES FOR DETERMINATION HEREIN ARE AS FOLLOWS: (1)
WHETHER THE REFUSAL BY RESPONDENT TO GRANT ACCESS TO CARSON TO THE
CONTROLLED INDUSTRIAL AREA BETWEEN DECEMBER 11, 1978 AND JANUARY 11,
1979 VIOLATED SECTION 19(A)(1) OF THE ORDER - AND WHETHER SUCH CONDUCT,
INCLUDING DENIAL BY RESPONDENT TO CARSON OF ACCESS TO THE NAVAL BASE
AFTER JANUARY 11, 1979, VIOLATED SECTION 7116(A)(1) OF THE ACT; (2)
WHETHER BY THE AFORESAID, AND OTHER CONDUCT, RESPONDENT REFUSED TO
BARGAIN IN GOOD FAITH IN VIOLATION OF 19(A)(1) AND (6) OF THE ORDER, AND
SINCE ITS EFFECTIVE DATE, IN VIOLATION OF SECTIONS 7116(A)(1) AND (5) OF
THE ACT.
(1) IT IS ELEMENTARY, AND WITHIN THE FRAMEWORK OF BOTH THE ORDER AND
THE ACT, THAT UNION ACTIVITY ENGAGED IN BY EMPLOYEES OR THEIR
REPRESENTATIVE IS PROTECTED FROM INTERFERENCE BY THE EMPLOYER. THUS, A
UNION OFFICIAL MUST BE GRANTED FREEDOM TO PROCESS GRIEVANCES OR
OTHERWISE REPRESENT EMPLOYEES, AND HE MAY NOT BE HARASSED IN THE PURSUIT
OF THESE ENDEAVORS. MOREOVER, UNLESS OTHERWISE WARRANTED, A UNION
REPRESENTATIVE MAY NOT BE DENIED ACCESS TO THE PREMISES. IN THE PRIVATE
SECTOR SUCH A DENIAL IS DEEMED INTERFERENCE WITH THE RIGHTS OF
EMPLOYEES. GENERAL MACHINE CO., 174 NLRB 1023, 1030. ON THE OTHER HAND,
THIS RIGHT IS NOT ABSOLUTE. A SERIOUS ABRIDGEMENT OF PLANT RULES OR
REGULATIONS MAY CURTAIL THIS RIGHT WITH AN ATTENDANT LOSS OF PROTECTION.
IN THE CASE AT BAR, RESPONDENT MAINTAINS THAT CARSON'S CONDUCT ON
DECEMBER 5, 1978 AND IN APRIL-MAY, 1979, WAS A BREACH OF SECURITY
REGULATIONS JUSTIFYING HIS EXCLUSION FROM THE CIA OR THE BASE ITSELF.
ACCORDINGLY, IT ARGUES, SUCH MISCONDUCT REMOVES THE PROTECTION SO
AFFORDED THE UNION OFFICIAL. /7/
IN THE RELATIVELY RECENT CASE OF DEPARTMENT OF THE ARMY,
HEADQUARTERS, MILITARY TRAFFIC, MANAGEMENT COMMAND, 2 FLRA NO. 72, THE
FEDERAL LABOR RELATIONS AUTHORITY DEALT WITH THIS PARTICULAR ISSUE. AN
ORAL REPRIMAND WAS GIVEN TO AN EMPLOYEE, WHO WAS ALSO A UNION
REPRESENTATIVE, FOR HAVING UTTERED DEROGATORY STATEMENTS IN A LOUD
MANNER WHILE SERVING ON A MERIT PROMOTION AND RANKING PANEL. RESPONDENT
DEEMED THE INDIVIDUAL'S BEHAVIOR TO BE DETRIMENTAL TO THE MORALS AND
DISCIPLINE OF THE ORGANIZATION. THE AUTHORITY NOTED THAT NOT EVERY
ALLEGED IMPROPRIETY COMMITTED BY AN EMPLOYEE WHILE ENGAGED IN PROTECTED
ACTIVITY RESULTS IN THE LOSS OF THIS PROTECTION. IT CONCLUDED, FURTHER,
THAT TO REMOVE AN EMPLOYEE'S CONDUCT FROM THE AMBIT OF PROTECTION, THE
EMPLOYEE MUST HAVE ENGAGED IN FLAGRANT MISCONDUCT. THE CONDUCT OF THE
EMPLOYEE, THROUGH NOT CONDONED BY IT, WAS HELD BY THE AUTHORITY NOT TO
REPRESENT THE KIND OF FLAGRANT ACTION WHICH IS BEYOND THE AMBIT OF
PROTECTION. ACCORDINGLY, IT HELD THAT THE EMPLOYER VIOLATED SECTIONS
19(A)(1) AND (2) BY THE ASSURANCE OF THE REPRIMAND TO THE EMPLOYEE. /8/
SEE ALSO DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, 2 FLRA NO.
7.
UPON REVIEWING THE ENTIRE RECORD HEREIN I AM NOT PERSUADED THAT
CARSON'S CONDUCT, EITHER ON DECEMBER 5, 1979 OR IN MAY, 1979, WAS SO
FLAGRANT OR SERIOUSLY VIOLATIVE OF SECURITY REGULATIONS AS TO JUSTIFY
THE ACTION TAKEN BY RESPONDENT. WHILE THEY MAY HAVE BEEN IMPROPER OR
BEYOND ACCEPTABLE CONDUCT, CARSON'S ACTIONS AT THESE TIMES WERE NOT SO
EGREGIOUS AS TO JUSTIFY HIS EXCLUSION FROM THE CIA OR THE BASE ITSELF
AND FORECLOSE HIS REPRESENTATIVE DUTIES.
IN RESPECT TO THE INCIDENT ON DECEMBER 5, 1978, THERE IS, AT LEASE,
SOME DISAGREEMENT AMONG MANAGEMENT OFFICIALS AS TO WHETHER AN ESCORT
WAS
REQUIRED WHEN A PASS WAS OBTAINED TO VISIT THE CIA. DETECTIVE BOWEN, IN
CONTRAST TO OTHER WITNESSES FOR RESPONDENT, TESTIFIED NO SUCH ESCORT WAS
REQUIRED UNLESS THE PASS IS STAMPED "INDUSTRIAL." /9/ BE THAT AS IT MAY,
SUFFICIENT EVIDENCE PREVAILS TO SUPPORT CARSON'S INSISTENCE THAT HE WAS,
IN FACT, ESCORTED FROM THE FOUNDRY AT THE TIME HE WAS CONFRONTED BY
BRADLEY. INSPECTOR EMBERGER, WHOM CARSON REPRESENTED AT THE GRIEVANCE
MEETING, MAINTAINED HE WAS ESCORTING CARSON FROM BUILDING 20. WHILE
THERE IS SOME EVIDENCE WHICH REFLECTS THAT AN ESCORT SHOULD BE A DULY
APPOINTED INDIVIDUAL, IT ALSO APPEARS FROM THE RECORD THAT VARIOUS
EMPLOYEES HAVE ACTED IN THAT CAPACITY WITHOUT BEING OFFICIALLY
DESIGNATED. IN ANY EVENT, NO MANAGEMENT REPRESENTATIVE CHECKED WITH
EMBERGER TO ASCERTAIN WHETHER HE WAS INDEED CARSON'S ESCORT. FAILURE TO
DO SO, IN LIGHT OF THE FACT THAT CARSON POINTED /10/ OUT EMBERGER TO
BRADLEY AS THE ESCORT, RAISES SERIOUS DOUBTS AS TO THE GRAVITY OF
CARSON'S CONDUCT UPON LEAVING THE BUILDING. ASSUMING ARGUENDO THAT THE
UNION OFFICER WAS UNESCORTED AT THAT TIME, I DO NOT CONSIDER SUCH
FAILING TO BE SO FLAGRANT AS TO WARRANT THE LOSS OF PROTECTION OTHERWISE
ACCORDED CARSON. EXCEPT FOR EJECTING A COMPLETE STRANGER, WHO WAS
TRESPASSING IN THAT AREA, RESPONDENT HAS RARELY, IF AT ALL, BARRED
EITHER ITS EMPLOYEES OR UNION OFFICIALS FROM A SECURITY LOCATION BASED
ON A FAILURE TO HAVE AN ESCORT ON A PARTICULAR OCCASION.
IN RESPECT TO THE BOOK OF PASSES RETAINED BY CARSON, I AM LIKEWISE
CONSTRAINED TO FIND THAT SUCH CONDUCT WOULD NOT REACH THE BOUNDS OF
IMPROPRIETY WHICH COULD BE CONSIDERED FLAGRANT UNDER THE CIRCUMSTANCES.
IT APPEARS THAT THE PASSES WERE GIVEN CARSON BY ONE OF MANAGEMENT'S
REPRESENTATIVES - THE PASS CLERK - AND THERE IS NO SHOWING THAT THE
UNION OFFICER OBTAINED THEM THROUGH IMPROPER MEANS. MOREOVER, NO
EVIDENCE WAS ADDUCED WHICH INDICATED THAT CARSON FORGED THE CLERK'S
INITIALS OR SIGNATURE ON THE PASS, NOR DOES IT APPEAR THAT HE
CIRCUMVENTED AN INITIALLING OF THE PASS BY SAID CLERK. UTILIZATION OF
THE BOOK BY CARSON, BY MEANS OF TYPING IN DETAILS ON THE PASS
BEFOREHAND, WAS SOLELY FOR THE PURPOSE OF SAVING TIME AND ELIMINATING
THE NEED TO STAND IN LINE AT THE PASS OFFICE. WHILE THIS CONDUCT MAY
VIOLATE RESPONDENT'S REGULATIONS, I CAN SCARCELY CONCLUDE IT IS SO
SERIOUS OR SUBSTANTIAL AS TO WARRANT BARRING CARSON FROM THE ENTIRE
BASE. /11/
ACCORDINGLY, I AM CONSTRAINED TO CONCLUDE THAT CARSON WAS ENGAGED IN
PROTECTED ACTIVITY WHILE REPRESENTING EMPLOYEE EMBER8ER ON DECEMBER 5,
1978 DURING THE GRIEVANCE SESSION AND THROUGHOUT HIS VISITATION AT THE
CIA ON THAT DATE; THAT THEREAFTER AND UNTIL MAY 9, 1979, CARSON WAS
ENGAGED IN PROTECTED ACTIVITY AS A UNION OFFICIAL AND CHIEF NEGOTIATOR
FOR THE MTC; AND THAT HIS CONDUCT ON THE AFORESAID DATES AS MENTIONED,
WAS NOT SO FLAGRANT AS TO BE REMOVED FROM THE AMBIT OF PROTECTION.
THEREFORE, I FIND THAT THE DENIAL OF ACCESS TO HIM TO THE CIA TO PERFORM
HIS DUTIES AS A UNION OFFICIAL ON DECEMBER 5, 1978 AND THEREAFTER, AND
HIS EXPULSION FROM THE ENTIRE BASE ON MAY 9, 1979 WERE ACTS OF
INTERFERENCE, RESTRAINT AND COERSION AND VIOLATIVE OF SECTIONS 19(A)(1)
OF THE ORDER AND SECTION 7116(A)(1) OF THE ACT RESPECTIVELY. /12/
(2) IN IMPOSING AN OBLIGATION UPON AN EMPLOYER TO BARGAIN WITH THE
REPRESENTATIVE OF ITS EMPLOYEES, BOTH THE ORDER AND THE ACT ALSO IMPOSE
A CORRELATIVE DUTY UPON MANAGEMENT TO DEAL WITH THE INDIVIDUALS SELECTED
TO ACT FOR THE COLLECTIVE BARGAINING AGENT. THE EMPLOYER MUST NEGOTIATE
WITH THE REPRESENTATIVES CHOSEN BY THE UNION. MINNESOTA MINING MFG.
CO., 173 NLRB NO. 47. A REFUSAL TO RECOGNIZE A CHIEF REPRESENTATIVE OF
THE BARGAINING REPRESENTATIVE WAS HELD IN THE PUBLIC SECTOR, TO
CONSTITUTE AN ATTEMPT TO INTERFERE IN THE UNION'S INTERNAL AFFAIRS. AS
SUCH, IT IS AN ACT OF INTERFERENCE UNDER SECTION 19(A)(1) OF THE ORDER,
AS WELL AS AN IMPROPER REFUSAL TO NEGOTIATE UNDER SECTION 19(A)(6)
THEREOF. UTAH ARMY NATIONAL GUARD, SALT LAKE CITY, UTAH, A/SLMR NO.
966.
RESPONDENT HEREIN HAS, IN MY OPINION, RUN AFOWL OF ITS OBLIGATION TO
MEET AND CONFER WITH MTC, THE BARGAINING REPRESENTATIVE OF ITS
EMPLOYEES. BY IMPROPERLY DENYING ONE OF ITS CHIEF NEGOTIATORS, CARSON,
ACCESS TO THE CIA, AND THEREAFTER EXCLUDING HIM FROM THE ENTIRE NAVAL
BASE, THE EMPLOYER HEREIN HAS, IN EFFECT, THWARTED THE COLLECTIVE
BARGAINING PROCESS. IT HAS, BY THIS MEANS, CHOSEN TO HAVE A VOICE IN
WHICH INDIVIDUALS SHALL, OR SHALL NOT, NEGOTIATE ON BEHALF OF THE UNION
WITH MANAGEMENT. SUCH INTRUSION INTO THE INTERNAL AFFAIRS OF THE MTC,
OR ANY BARGAINING REPRESENTATIVE, IS AN ACT OF IMPROPER INTERFERENCE.
MOREOVER, RESPONDENT HAS REFUSED TO MEET WITH THE MTC OFF THE BASE SO
THAT NEGOTIATOR CARSON COULD ENTER INTO NEGOTIATIONS WITH MANAGEMENT.
THUS, BY REASON OF THE EMPLOYER'S EXPELLING A CHIEF UNION REPRESENTATIVE
FROM THE SHIPYARD, AND ITS INTRANSIGENCE RE RESUMING BARGAINING
ELSEWHERE, NEGOTIATIONS BETWEEN THE PARTIES HAVE BEEN STALLED. THE
FOREGOING PERSUADES ME THAT, BY SUCH CONDUCT, RESPONDENT HAS REFUSED TO
MEET AND CONFER IN GOOD FAITH WITH MTC SINCE DECEMBER 11, 1978; THAT BY
DENYING CARSON ACCESS ON THAT DATE TO THE CONTROLLED SECURITY AREA, AS
WELL AS EXPELLING HIM FROM THE NAVAL BASE ON MAY 9, 1979, THE EMPLOYER
HAS VIOLATED SECTIONS 19(A)(1) AND (6) OF THE ORDER AND SECTIONS
7116(A)(1) AND (5) OF THE ACT.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER, AND SECTIONS 7116(A)(1) AND (5)
OF THE ACT, I RECOMMEND THE FEDERAL LABOR RELATIONS AUTHORITY ADOPT THE
FOLLOWING ORDER DESIGNED TO EFFECTUATE THE PURPOSE OF EXECUTIVE ORDER
11491, AS AMENDED AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE.
RECOMMENDED ORDER /13/
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS AND SECTION 7105(G)(3) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, AND SECTION 2400.2
OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS AUTHORITY ORDERS THE
PHILADELPHIA NAVAL SHIPYARD SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR DENYING JOSEPH P. CARSON, OR ANY OTHER DULY
AUTHORIZED UNION REPRESENTATIVE, ACCESS AND ENTRY TO THE PHILADELPHIA
NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA, IN ORDER TO
CONFER WITH AND REPRESENT EMPLOYEE CONCERNING THEIR GRIEVANCES, AND TO
CONDUCT BUSINESS OR MEET WITH MANA8EMENT ON BEHALF OF THE PHILADELPHIA
METAL TRADES COUNCIL.
(B) REFUSING TO MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL BY DENYING ACCESS AND ENTRY TO JOSEPH P. CARSON TO
THE PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL
AREA, IN ORDER TO REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND
TO CONDUCT BUSINESS OR MEET WITH MANAGEMENT ON BEHALF OF THE
PHILADELPHIA METAL TRADES COUNCIL.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED, AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE ORDER AND THE ACT:
(A) ALLOW AND PERMIT JOSEPH P. CARSON, OR ANY OTHER DULY AUTHORIZED
UNION REPRESENTATIVE, TO ENTER, AND GAIN ACCESS TO THE PHILADELPHIA
NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA, IN ORDER TO
REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND TO CONDUCT
BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF OF THE PHILADELPHIA METAL
TRADES COUNCIL.
(B) UPON REQUEST MEET, CONFER, AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL BY ALLOWING REPRESENTATIVE JOSEPH P. CARSON, OR ANY
OTHER DULY AUTHORIZED UNION REPRESENTATIVE, TO ENTER AND GAIN ACCESS TO
THE PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL
AREA, IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR
GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF
OF THE PHILADELPHIA METAL TRADES COUNCIL.
(C) POST AS ITS FACILITY AT THE PHILADELPHIA NAVAL SHIPYARD,
PHILADELPHIA, PENNSYLVANIA, 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
COMMANDANT OF THE PHILADELPHIA NAVAL BASE, AND THEY SHALL BE POSTED FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
COMMANDANT SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) 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 THEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 12, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATION AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED AND THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE OR DENY JOSEPH P. CARSON, OR ANY OTHER DULY
AUTHORIZED UNION REPRESENTATIVE, ACCESS AND ENTRY TO THE PHILADELPHIA
NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA, IN ORDER TO
CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR GRIEVANCES, AND TO
CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF OF THE PHILADELPHIA
METAL TRADES COUNCIL.
WE WILL NOT REFUSE TO MEET, CONFER, AND NEGOTIATE WITH THE
PHILADELPHIA METAL TRADES COUNCIL BY REFUSING OR DENYING JOSEPH P.
CARSON, OR ANY OTHER DULY AUTHORIZED UNION REPRESENTATIVE, ACCESS AND
ENTRY TO THE PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED
INDUSTRIAL AREA, IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES
CONCERNING THEIR GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH
MANAGEMENT, ON BEHALF OF THE PHILADELPHIA METAL TRADES COUNCIL.
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 AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL ALLOW AND PERMIT JOSEPH P. CARSON, OR ANY OTHER DULY
AUTHORIZED UNION REPRESENTATIVE, TO ENTER AND GAIN ACCESS TO THE
PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA,
IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR
GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF
OF THE PHILADELPHIA METAL TRADES COUNCIL.
WE WILL UPON REQUEST MEET, CONFER AND NEGOTIATE WITH THE PHILADELPHIA
METAL TRADES COUNCIL BY ALLOWING AND PERMITTING JOSEPH P. CARSON, OR ANY
OTHER DULY AUTHORIZED REPRESENTATIVE, TO ENTER AND GAIN ACCESS TO THE
PHILADELPHIA NAVAL SHIPYARD, INCLUDING THE CONTROLLED INDUSTRIAL AREA,
IN ORDER TO CONFER WITH AND REPRESENT EMPLOYEES CONCERNING THEIR
GRIEVANCES, AND TO CONDUCT BUSINESS, OR MEET WITH MANAGEMENT, ON BEHALF
OF THE PHILADELPHIA METAL TRADES COUNCIL.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
(SIGNATURE)
--------------- FOOTNOTES$ ---------------
/1/ MTC LATER AMENDED ITS COMPLAINT (DESIGNATED AS "CHARGE") ON MARCH
22, 1979 TO ALLEGE THAT SUCH ACTIONS, ENGAGED IN SINCE JANUARY 12, 1979,
ALSO VIOLATED SECTIONS 7116(A)(1) AND (2) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
/2/ STAMPINGS WERE MADE ON THE ORIGINAL BUT DID NOT APPEAR OR COME
THROUGH ON THE CARBON COPY.
/3/ THE PASS OBTAINED BY CARSON ON DECEMBER 5, 1978 WAS, IN FACT,
STAMPED DECEMBER 4, 1978. RECORD FACTS ATTEST TO A FREQUENT MIX-UP ON
THE TIME CLOCK. IN ANY EVENT, SINCE CARSON WAS BANNED FROM THE CIA FOR
LACK OF AN ESCORT - AND NO OTHER REASON - I MAKE NO FINDINGS AS TO THE
VALIDITY OF HIS PASS DESPITE MANAGEMENT'S INSISTENCE THAT CARSON DID NOT
HAVE A BONA FIDE PASS FOR DECEMBER 5.
/4/ THE DATE WAS CHANGED BY BRITT TO DECEMBER 11 AT WHICH TIME THE
EXCLUSION OF CARSON WAS MADE EFFECTIVE.
/5/ THE UNION REPRESENTATIVE DISPOSED OF THEM FOR FEAR HE MIGHT GET
INTO DIFFICULTY SINCE MANAGEMENT HAD PREVIOUSLY MADE AN ISSUE OF THE
DECEMBER 5,INCIDENT.
/6/ THE RECORD REFLECTS THAT IN THE SPRING OF 1978 BOWEN HAD TALKED
TO CARSON CONCERNING THE XEROXING OF PASSES. THE DETECTIVE ADVISED
CARSON IT WAS A VIOLATION OF SECURITY REGULATIONS, AND THE LATTER
DISCONTINUED THE PRACTICE AS REQUESTED.
/7/ CARSON TESTIFIED TO SEVERAL INSTANCES, PRIOR TO DECEMBER, 1978,
WHERE RESPONDENT'S GUARDS CHECKED HIS PASS DURING SCHEDULED UNION
MEETINGS. GENERAL COUNSEL ADVERTS TO THESE INCIDENTS IN SUPPORT OF ITS
CONTENTION THAT RESPONDENT'S EXPULSION OF CARSON FROM THE SHIPYARD WAS
BASED ON HIS REFUSAL TO RATIFY THE TENTATIVE AGREEMENT, AS WELL AS HIS
ADVOCATING IT BE REJECTED. SINCE MY CONCLUSIONS HEREIN ARE BASED ON HIS
RETENTION OF PROTECTED ACTIVITY, AND NOT PREDICATED ON ANTI-UNION ANIMUS
IN ANY REGARD, I MAKE NO FINDINGS AS TO THESE INSTANCES.
/8/ IT IS NOTED THAT THE CITED CASE INVOLVES PROTECTION AFFORDED AN
EMPLOYEE DESPITE HIS ALLEGED MISCONDUCT. WHILE THE CASE AT BAR INVOLVES
A NON-EMPLOYEE, WHO IS A UNION NEGOTIATOR AND OFFICER, THE SAME
PROTECTION WOULD BE AFFORDED SUCH AN INDIVIDUAL WHILE ENGAGED IN UNION
BUSINESS. THUS, EJECTING A UNION PRESIDENT (NON-EMPLOYEE) FROM A
MEETING FOR HAVING USED ABUSIVE LANGUAGE WAS HELD TO CONSTITUTE
INTERFERENCE WITH THE RIGHTS OF EMPLOYEES ASSURED UNDER THE ORDER. SEE
U.S. SMALL BUSINESS ADMINISTRATION, CENTRAL OFFICE, WASHINGTON, D.C.,
A/SLMR NO. 631.
/9/ SECURITY REGULATION 5512.8 DOES, BY ITS LANGUAGE, REQUIRE AN
ESCORT UNDER THE CIRCUMSTANCE EXISTENT ON DECEMBER 5. NEVERTHELESS,
RECORD FACTS REFLECT THAT CARSON WAS PERMITTED TO CARRY OUT HIS UNION
BUSINESS ON PAST OCCASIONS WITHOUT BENEFIT OF AN ESCORT. FURTHER, THIS
PRACTICE WAS ALSO FOLLOWED BY OTHERS WHO VISITED THE CONTROLLED SECURITY
AREA.
/10/ I CREDIT CARSON'S VERSION OF WHAT OCCURRED WHEN HE WAS
CONFRONTED BY BRADELY ON DECEMBER 5. MOREOVER, BRADLEY TESTIFIED THAT
CARSON MAY HAVE POINTED OUT EMBERGER AS HIS ESCORT. HIS INABILITY TO
RECALL DID NOT CONTROVERT CARSON'S TESTIMONY IN THIS REGARD.
/11/ NO CONSIDERATION HAS BEEN GIVEN BY THE UNDERSIGNED TO
RESPONDENT'S CLAIM THAT CARSON ENGAGED IN VARIOUS OTHER ACTS OF
MISCONDUCT. THE SOLE BASIS FOR BARRING CARSON FROM CIA WAS HIS FAILURE
TO HAVE AN ESCORT ON DECEMBER 5, 1978. EXPULSION OF CARSON FROM THE
BASE ON MAY 8, 1978 WAS OCCASIONED BY HIS RETAINING THE BOOK OF PASSES
AND XEROXING COPIES TO USE DURING HIS VISITS TO THE SHIPYARD.
/12/ GENERAL COUNSEL REQUESTS THAT A FINDING BE MADE THAT RESPONDENT
VIOLATED THE ACT BY REVOKING THE PASS OF SID SIMONS, AN MTC DELEGATE WHO
IS ON THE NEGOTIATING TEAM. HE CITES CASES TO SHOW THAT, IN THE PRIVATE
SECTOR, WHEN A RECORD SUPPORTS A VIOLATION - EVEN THOUGH NOT PLEADED IN
THE COMPLAINT - A FINDING CAN BE MADE IN THAT REGARD. THE REQUEST IS
DENIED. WHEN SUCH A VIOLATION IS FOUND, THE COMPLAINT MUST, AT LEAST,
BE BROAD ENOUGH TO COVER THE CONDUCT DEEMED VIOLATIVE OF THE ACT. THE
COMPLAINT HEREIN IS NOT SUFFICIENTLY BROAD TO ENCOMPASS A FINDING AS TO
SIMONS. FURTHER, THE DENIAL OF A PASS TO SIMONS WAS REFERRED TO IN
COLLATERAL TESTIMONY, AND IT DOES NOT APPEAR THAT ACTIONS TAKEN TOWARD
THIS INDIVIDUAL WERE INTENDED TO BE, NOR WERE THEY, FULLY "LITIGATED" AT
THE HEARING AS A SEPARATE VIOLATION.
/13/ ALTHOUGH GENERAL COUNSEL SEEKS, AS PART OF THE REMEDY THAT A
PERMANENT VISITOR'S PASS BE ISSUED TO CARSON, I DO NOT SO RECOMMEND.
SINCE RESPONDENT HAS UNDERTAKEN TO WITHDRAW ALL SUCH PASSES, THE REMEDY
SOUGHT AS TO CARSON WOULD BE INAPPROPRIATE.