Consumer Product Safety Commission (Respondent) and American Federation of Government Employees, Local 3705, AFL-CIO (Charging Party)
[ v04 p803 ]
04:0803(105)CA
The decision of the Authority follows:
4 FLRA No. 105
CONSUMER PRODUCT SAFETY COMMISSION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3705, AFL-CIO
Charging Party
Case Nos. 3-CA-12
3-CA-34
3-CA-35
3-CA-36
3-CA-220
3-CA-221
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 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 ADMINISTRATIVE LAW JUDGE
FURTHER FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN OTHER UNFAIR LABOR
PRACTICES ALLEGED UNDER BOTH THE EXECUTIVE ORDER AND THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135) AND RECOMMENDED
DISMISSAL OF THOSE COMPLAINTS. EXCEPTIONS TO THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER WERE FILED BY THE RESPONDENT, THE
CHARGING PARTY, AND THE GENERAL COUNSEL. /1/
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 SECTION 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 CASES, INCLUDING THE EXCEPTIONS FILED BY THE RESPONDENT, THE
CHARGING PARTY AND THE GENERAL COUNSEL, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
/2/
IN CASE NO. 3-CA-220, THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE
FILING OF A CIVIL LIBEL SUIT BY AN OFFICIAL OF THE RESPONDENT, ACTING
THROUGH HIS PERSONAL ATTORNEY AND IN HIS INDIVIDUAL CAPACITY, AGAINST
ONE OF THE RESPONDENT'S EMPLOYEES DID NOT VIOLATE SECTION 7116(A)(1) OR
(4) OF THE STATUTE. IN AGREEMENT WITH THE ADMINISTRATIVE LAW JUDGE, AND
FOR THE REASONS MORE FULLY SET FORTH IN HIS RECOMMENDED DECISION AND
ORDER, THE AUTHORITY CONCLUDES THAT SUCH CONDUCT DID NOT VIOLATE THE
STATUTE IN THE CIRCUMSTANCES OF THIS CASE.
ORDER /3/
PURSUANT TO SECTIONS 2400.2 AND 2423.29 OF THE RULES AND REGULATIONS
OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTIONS 7118 AND 7135 OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY
HEREBY ORDERS THAT THE CONSUMER PRODUCT SAFETY COMMISSION SHALL:
1. CEASE AND DESIST FROM:
(A) DETAILING OR ASSIGNING RAYMOND LABONSKI, OR ANY OTHER OFFICIAL OF
LOCAL 3705, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OUT OF THE PHILADELPHIA
AREA OFFICE, OR FROM A
NORMAL DUTY STATION, AS PUNISHMENT FOR, OR IN RETALIATION FOR,
ENGAGING IN ACTIVITY PROTECTED
BY EXECUTIVE ORDER 11491, AS AMENDED.
(B) DISAPPROVING, WITHHOLDING, OR DELAYING APPROVAL OF ANNUAL LEAVE
AND/OR SICK LEAVE FOR
MARIA JAURIGUE, OR FOR AND OTHER EMPLOYEE, AS PUNISHMENT FOR, OR IN
RETALIATION FOR, ENGAGING
IN PROTECTED ACTIVITY UNDER EXECUTIVE ORDER 11491, AS AMENDED,
INCLUDING, BUT NOT LIMITED TO,
THE FILING OF A COMPLAINT OR THE GIVING OF TESTIMONY UNDER THE ORDER.
(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 BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE; ENCOURAGING OR
DISCOURAGING MEMBERSHIP IN
A LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE,
PROMOTION, OR OTHER
CONDITIONS OF EMPLOYMENT; OR DISCIPLINING OR OTHERWISE
DISCRIMINATING AGAINST AN EMPLOYEE
BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER
EXECUTIVE ORDER 11491, AS
AMENDED, OR BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR HAS GIVEN
ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
(A) ADVISE MARIA JAURIGUE, IN WRITING, AS SHE IS NO LONGER LOCATED IN
ITS PHILADELPHIA AREA
OFFICE, THAT IT WILL NOT DISAPPROVE, WITHHOLD, OR DELAY APPROVAL OF
ANNUAL LEAVE AND/OR SICK
LEAVE TO WHICH SHE MAY BE ENTITLED, AS PUNISHMENT FOR, OR IN
RETALIATION FOR, ANY PROTECTED
ACTIVITY ENGAGED IN BY HER, INCLUDING, BUT NOT LIMITED TO, THE FILING
OF A COMPLAINT OR THE
GIVING OF TESTIMONY UNDER EXECUTIVE ORDER 11491, AS AMENDED OR
BECAUSE SHE HAS FILED A
COMPLAINT, AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY INFORMATION OR
TESTIMONY UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(B) POST AT EACH FACILITY OF ITS PHILADELPHIA AREA OFFICE, INCLUDING
ALL RESIDENT OFFICES,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE
FURNISHED BY THE
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE
PHILADELPHIA AREA OFFICE, CONSUMER PRODUCT SAFETY COMMISSION, AND
SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE
DIRECTOR 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 COMPLAINTS IN CASE NOS.
3-CA-35, 3-CA-36, 3-CA-220 AND 3-CA-221 BE, AND THEY HEREBY ARE,
DISMISSED.
ISSUED, WASHINGTON, D.C., DECEMBER 31, 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 DETAIL OR ASSIGN RAYMOND LABONSKI, OR ANY OTHER OFFICIAL
OF LOCAL 3705, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OUT
OF THE PHILADELPHIA AREA OFFICE, OR FROM A NORMAL DUTY STATION, AS
PUNISHMENT FOR, OR IN RETALIATION FOR, ENGAGING IN ACTIVITIES PROTECTED
BY EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL NOT DISAPPROVE, WITHHOLD, OR DELAY APPROVAL OF ANNUAL LEAVE
AND/OR SICK LEAVE FOR MARIA JAURIGUE, OR FOR ANY OTHER EMPLOYEE, AS
PUNISHMENT FOR, OR IN RETALIATION FOR, ENGAGING IN PROTECTED ACTIVITY,
AND WE WILL ADVISE MARIA JAURIGUE, IN WRITING, AS SHE IS NO LONGER
LOCATED IN THE PHILADELPHIA AREA OFFICE, THAT WE WILL NOT DISAPPROVE,
WITHHOLD, OR DELAY APPROVAL OF ANNUAL LEAVE AND/OR SICK LEAVE TO WHICH
SHE MAY BE ENTITLED AS PUNISHMENT FOR, OR IN RETALIATION FOR, ANY
PROTECTED ACTIVITY ENGAGED IN BY HER, INCLUDING, BUT NOT LIMITED TO, THE
FILING OF A COMPLAINT OR THE GIVING OF TESTIMONY UNDER EXECUTIVE ORDER
11491, AS AMENDED, OR BECAUSE SHE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER EXECUTIVE
ORDER 11491, AS AMENDED, OR UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE; ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT, OR DISCIPLINE OR OTHERWISE
DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE THE EMPLOYEE HAS FILED A
COMPLAINT OR HAS GIVEN TESTIMONY UNDER EXECUTIVE ORDER 11491, AS
AMENDED, OR BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
DIRECTOR
PHILADELPHIA AREA OFFICE
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:
ROOM 300, 1133 15TH STREET, N.W., WASHINGTON, D.C. 20005, AND WHOSE
TELEPHONE NUMBER IS (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
PETER B. ROBB, ESQUIRE
LEE MINGLEDORFF, ESQUIRE
ATTORNEYS
FEDERAL LABOR RELATIONS AUTHORITY
REGION 3
SUITE 401
1730 K STREET, N.W.
WASHINGTON, D.C. 20006
FOR THE GENERAL COUNSEL
MILTON R. COHEN, ESQUIRE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
SUITE 201
4847 NORTH BROAD STREET
PHILADELPHIA, PENNSYLVANIA 19141
FOR THE CHARGING PARTY
RONALD E. DEUTSCH, ESQUIRE
ATTORNEY
OFFICE OF THE GENERAL COUNSEL
CONSUMER PRODUCT SAFETY COMMISSION
1111 18TH STREET, N.W.
WASHINGTON, D.C. 20207
ON BRIEF:
ANDREW S. KRULWICH, ESQUIRE
GENERAL COUNSEL
RICHARD W. ALLEN, ESQUIRE
GENERAL COUNSEL
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE, 5
U.S.C. SECTION 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED
THEREUNDER. 5 U.F.R. CHAPTER XIV, PART 2400, ET SEQ., /4/ HOWEVER, CASE
NOS. 3-CA-12, 3-CA-34, AND 3-CA-35 INVOLVE ALLEGED VIOLATIONS OF
EXECUTIVE ORDER 11491, AS AMENDED (HEREINAFTER ALSO REFERRED TO AS THE
"ORDER") AND CASE NOS. 3-CA-36, 3-CA-220, AND 3-CA-221, INVOLVE ALLEGED
VIOLATIONS OF THE STATUTE.
THE CHARGE IN CASE NO. 3-CA-12 (FILED ON THE COMPLAINT FORM OF THE
ASSISTANT SECRETARY UNDER THE ORDER) WAS FILED ON JANUARY 15, 1979 (G.C.
EXH. 1B) AND A COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 17, 1979
(G.C. EXH. 1P), /5/ FOR A HEARING ON OCTOBER 16, 1979. THE CHARGE IN
CASE NO. 3-CA-34 (FILED ON THE COMPLAINT FORM OF THE ASSISTANT SECRETARY
UNDER THE ORDER) WAS FILED ON FEBRUARY 21, 1979 (G.C. EXH. 1C) AND A
COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 17, 1979 (G.C. EXH 1Q)
FOR A HEARING ON OCTOBER 16, 1979. THE CHARGE IN CASE NO. 3-CA-35
(FILED ON THE COMPLAINT FORM OF THE ASSISTANT SECRETARY UNDER THE ORDER)
WAS FILED ON FEBRUARY 21, 1979 (G.C. EXH. 1D) AND A COMPLAINT AND NOTICE
OF HEARING ISSUED ON AUGUST 17, 1979 (G.C. EXH. 1-R) FOR A HEARING ON
OCTOBER 16, 1979. THE CHARGE IN CASE NO. 3-CA-36 (FILED ON THE
COMPLAINT FORM OF THE ASSISTANT SECRETARY) ALLEGING VIOLATIONS OF THE
ORDER WAS FILED ON FEBRUARY 21, 1979 (G.C. EXH. 1E), AN AMENDED CHARGE
ALLEGING VIOLATIONS OF THE STATUTE WAS FILED ON AUGUST 14, 1979 (G.C.
EXH. 1F), AND A COMPLAINT AND NOTICE OF HEARING ISSUED ON AUGUST 17,
1979 (G.C. EXH. 1S), FOR A HEARING ON OCTOBER 16, 1979. THE CHARGES IN
CASE NOS. 3-CA-220 (G.C. EXH. 1G) AND 3-CA-221 (G.C. EXH. 1H) UNDER THE
STATUTE WERE FILED ON MAY 15, 1979, AND COMPLAINTS AND NOTICES OF
HEARING IN EACH CASE ISSUED ON AUGUST 30, 1979 (G.C. EXH. 1T, NO. 220;
G.C. EXH. 1U, NO. 221) FOR A HEARING ON OCTOBER 16, 1979. RESPONDENT
TIMELY ANSWERED EACH COMPLAINT (G.C. EXHS. 1BB, 1CC, 1DD, 1EE, 1FF, AND
1GG); ON AUGUST 31, 1979, THE REGIONAL DIRECTOR ISSUED ON ORDER
CONSOLIDATING CASES (G.C. EXH. 1HH); ON SEPTEMBER 18, 1979, RESPONDENT
FILED A MOTION FOR PRODUCTION OF DOCUMENTS (G.C. EXH. 1II), A MOTION TO
TAKE DEPOSITIONS (G.C. EXH. 1JJ), AND A MOTION TO SEVER (G.C. EXH. 1KK),
EACH OF WHICH WAS DENIED BY THE REGIONAL DIRECTOR ON SEPTEMBER 28, 1979
(G.C. EXHS. 111, 1MM, AND 1NN). ON OCTOBER 12, 1979, RESPONDENT FILED A
MOTION FOR CONTINUANCE AND FOR GOOD CAUSE SHOWN THIS OFFICE, ON OCTOBER
12, 1979, ENTERED AN ORDER RESCHEDULING HEARING FOR OCTOBER 30, 1979
(G.C. EXH. 1QQ). ON OCTOBER 5, HARRY L. GASTLEY, ESQUIRE, FILED A
MOTION TO INTERVENE ON BEHALF OF MR. LACY B. WARD, AREA DIRECTOR OF
RESPONDENT (G.C. EXH. 1RR), WHICH WAS REFERRED TO THIS OFFICE BY THE
REGIONAL DIRECTOR BY ORDER DATED OCTOBER 11, 1979 (G.C. EXH. 1SS) AND
AMENDED ORDER DATED OCTOBER 15, 1979 (G.C. EXH. 1UU), AND SAID MOTION TO
INTERVENE WAS DENIED BY THE UNDERSIGNED ON OCTOBER 18, 1979 (G.C. EXH.
1WW).
PURSUANT TO THE ORDER RESCHEDULING HEARING, A HEARING WAS DULY HELD
BEFORE THE UNDERSIGNED IN PHILADELPHIA, PENNSYLVANIA, ON OCTOBER 30, 31
AND NOVEMBER 1, 1979. THE CHARGING PARTY APPEARED BY COUNSEL AND WAS
PERMITTED TO PARTICIPATE AS A PARTY; HOWEVER THE CHARGING PARTY'S
PARTICIPATION WAS GRANTED UNDER SECTION 2423.14 OF THE INTERIM
REGULATIONS (2423.15 OF THE FINAL REGULATIONS) AS AN INTERVENOR.
CLEARLY, THIS WAS IN ERROR AND THE CHARGING PARTY SHOULD HAVE BEEN
PERMITTED TO PARTICIPATE AS A PARTY UNDER SECTION 2423.15 OF THE INTERIM
REGULATIONS (2423.16 OF THE FINAL REGULATIONS). /6/ ACCORDINGLY, THE
DESIGNATION OF THE STATUS OF THE CHARGING PARTY IS HEREBY CORRECTED,
I.E., THE DESIGNATION OF THE CHARGING PARTY AS INTERVENOR IS HEREBY
DELETED. NEVERTHELESS, THE PARTICIPATION OF A PARTY, PURSUANT TO
SECTION 2423.15 OF THE INTERIM RULES (SECTION 2423.16 OF THE FINAL
RULES), "SHALL BE LIMITED TO THE EXTENT PRESCRIBED BY THE ADMINISTRATIVE
LAW JUDGE" AND, ACCORDINGLY, THE LIMITATIONS PRESCRIBED ON THE
PARTICIPATION OF THE CHARGING PARTY WAS PROPER AND FULLY IN ACCORDANCE
WITH THE RULES AND REGULATIONS. /7/
ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES (COUNSEL
FOR CHARGING PARTY CROSS-EXAMINED BUT DID NOT CALL ANY WITNESSES), AND
TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN; AND THE
PARTIES WERE AFFORDED FULL OPPORTUNITY TO PRESENT ORAL ARGUMENT AT THE
CONCLUSION OF THE TESTIMONY. AT THE CLOSE OF THE HEARING, DECEMBER 3,
1979, WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS. COUNSEL
FOR THE GENERAL COUNSEL FILED ON NOVEMBER 27, 1979, A REQUEST FOR AN
EXTENSION OF TIME FOR THE FILING OF POST-HEARING BRIEFS, FROM DECEMBER
3, 1979, TO JANUARY 7, 1980, AND STATED THAT COUNSEL FOR RESPONDENT
JOINED IN THE REQUEST BUT THAT COUNSEL FOR THE CHARGING PARTY HAD NOT
BEEN REACHED AS HE WAS OUT OF THE OFFICE TRAVELING UNTIL NOVEMBER 28.
ON NOVEMBER 29, 1979, FOR GOOD CAUSE SHOWN, THE REQUEST OF THE GENERAL
COUNSEL WAS ORALLY GRANTED AND COUNSEL FOR THE GENERAL COUNSEL WAS TO
NOTIFY COUNSEL FOR RESPONDENT AND FOR THE CHARGING PARTY. LATER IN THE
DAY ON NOVEMBER 29, THIS OFFICE RECEIVED THE BRIEF OF THE CHARGING
PARTY. ON DECEMBER 3, 1979, THE UNDERSIGNED ISSUED AN ORDER EXTENDING
THE TIME FOR FILING BRIEFS BY THE GENERAL COUNSEL AND RESPONDENT TO
JANUARY 7, 1980, AND GRANTED LEAVE FOR THE CHARGING PARTY TO FILE A
REPLY BRIEF ON, OR BEFORE, JANUARY 18, 1980. GENERAL COUNSEL AND
RESPONDENT TIMELY FILED BRIEFS ON JANUARY 7, 1980, AND CHARGING PARTY
TIMELY FILED A REPLY BRIEF ON JANUARY 18, 1980. ALL BRIEFS HAVE BEEN
CAREFULLY CONSIDERED. ON NOVEMBER 28, 1979, THIS OFFICE RECEIVED
RESPONDENT'S MOTION ENTITLED "MOTION TO SEAL RECORD" WHICH, AS SET FORTH
IN PARAGRAPHS III AND IV THEREOF, DESPITE THE MORE EXPANSIVE TITLE OF
THE MOTION, CONCERNS ONLY THE NAME OF A FORMER EMPLOYEE OF RESPONDENT.
WHILE NOT UNSYMPATHETIC WITH THE OBJECTIVE OF RESPONDENT, THE RELIEF
REQUESTED CAN NOT BE GRANTED. THE IDENTITY OF THIS FORMER EMPLOYEE WAS
DISCLOSED IN BOTH TESTIMONY AND EXHIBITS WITHOUT OBJECTION; THIS OFFICE
RECEIVED THE TRANSCRIPTS AND EXHIBITS ON NOVEMBER 23, 1979, AND THE
TRANSCRIPT REPORT SHOWS THAT COPIES WERE FORWARDED TO THE REGIONAL
DIRECTOR ON THE SAME DATE; AND RESPONDENT HAS NOT SET FORTH THE PAGES
OF THE TESTIMONY ON WHICH SUCH REFERENCES APPEAR OR THE EXHIBITS WHICH
RELATE THERETO. THE MOTION IS, THEREFORE, DENIED; HOWEVER, INASMUCH AS
THE NAME OF THIS FORMER EMPLOYEE IS NOT NECESSARY TO DECISION OF ANY
ISSUE INVOLVED, I SHALL NOT IDENTIFY SUCH FORMER EMPLOYEE IN THIS
DECISION.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS
AND ORDER:
THE ISSUES
1. DID RESPONDENT VIOLATE SECTIONS 19(A)(1), (2) AND (4) OF THE
ORDER BY ITS DETAIL OF THE LOCAL UNION PRESIDENT TO PITTSBURGH FOR THE
PERIOD OF JULY 17, 1978 TO AUGUST 11, 1978? (CASE NO. 3-CA-12)
2. DID RESPONDENT ON NOVEMBER 20, 1978 VIOLATE SECTIONS 19(A)(1) AND
(4) OF THE ORDER BY REFUSING TO GRANT ANNUAL LEAVE AND/OR SICK LEAVE TO
MARIA JAURIGUE? (CASE NO. 3-CA-34)
3. DID RESPONDENT ON JANUARY 9, 1979, VIOLATE SECTIONS 19(A)(1) AND
(4) OF THE ORDER BY REQUIRING MS. JAURIGUE TO PRESENT A PHYSICIAN'S
STATEMENT IN SUPPORT OF SUCH LEAVE? (CASE NO. 3-CA-35)
4. DID RESPONDENT ON JANUARY 22, 1979, VIOLATE SECTIONS 7116(A)(1)
AND (4) OF THE STATUTE BY IMPOSING ON MS. JAURIGUE A MORE STRINGENT
REQUIREMENT IN ACCOUNTING FOR SICK LEAVE THAN REQUIRED OF OTHER
EMPLOYEES? (CASE NO. 3-CA-36)
5. DID RESPONDENT VIOLATE SECTIONS 7116(A)(1) AND (4) OF THE STATUTE
BY VIRTUE OF THE CIVIL LIBEL ACTION FILED IN STATE COURT BY MR. LACY
WARD AGAINST MS. JAURIGUE? (CASE NO. 3-CA-220)
6. DID RESPONDENT VIOLATE SECTIONS 7116(A)(1) AND (4) OF THE STATUTE
BY VIRTURE OF THE SUBPOENA DECES TECUM SERVED ON THE LOCAL UNION
PRESIDENT IN CONNECTION WITH MR. WARD'S SUIT FOR LIBEL? (CASE NO.
3-CA-221)
FOR REASONS MORE FULLY SET FORTH HEREINAFTER, I HAVE FOUND A
VIOLATION AS TO ISSUES 1 AND 2; AND HAVE FOUND NO VIOLATION AS TO
ISSUES 3, 4, 5 AND 6.
FINDINGS
A. BACKGROUND
RESPONDENT WAS ESTABLISHED IN 1973 TO ENFORCE VARIOUS LAWS DEALING
WITH CONSUMER PRODUCTS, SUCH AS THE CONSUMER PRODUCT SAFETY ACT, THE
HAZARDOUS SUBSTANCES ACT, THE POISON PREVENTION ACT, AND THE INFLAMMABLE
FABRICS ACT. RESPONDENT OPERATES THROUGH AREA OFFICES, ONE OF WHICH IS
LOCATED IN PHILADELPHIA, PENNSYLVANIA. IN 1978, THE BASIC SUPERVISORY
STRUCTURE OF THE PHILADELPHIA AREA OFFICE, WHICH IS THE ONLY AREA OFFICE
INVOLVED IN THIS PROCEEDING, WAS AS FOLLOWS: MR. LACY B. WARD WAS AREA
DIRECTOR AND GENERALLY RESPONSIBLE FOR SUPERVISING ALL ASPECTS OF THE
OFFICE; THE COMMUNITY SERVICES DIVISION WHICH HANDLED PUBLIC RELATIONS,
WAS HEADED BY MS. MARIA JAURIGUE AND SHE REPORTED DIRECTLY TO MR. WARD;
THE ADMINISTRATION AND COMPLIANCE BRANCHES ALSO REPORTED DIRECTLY TO
MR. WARD; MR. RAYMOND BENSON WAS DIRECTOR OF OPERATIONS AND SUPERVISED
INVESTIGATIONS CONDUCTED BY THE OFFICE. OPERATIONS WAS FURTHER DIVIDED
INTO TWO TEAMS OF SIX OR SEVEN INVESTIGATORS WITH EACH TEAM BEING UNDER
A SUPERVISOR, MR. FRANK KRIVDA OR MR. WILLIAM ROBINSON. IN ADDITION,
THERE WERE THREE RESIDENT POSTS: PITTSBURGH, SUPERVISED BY MR.
ROBINSON; AND RICHMOND, VIRGINIA, AND BALTIMORE, MARYLAND, BOTH
SUPERVISED BY MR. KRIVDA.
IN JANUARY, 1977, THE CHARGING PARTY (HEREINAFTER ALSO REFERRED TO AS
THE "UNION") WAS GRANTED EXCLUSIVE RECOGNITION FOR CERTAIN OF
RESPONDENT'S EMPLOYEES AT ITS PHILADELPHIA AREA OFFICE. THE FOLLOWING
INDIVIDUALS SERVED AS UNION OFFICERS DURING 1978: MR. RAYMOND
LABONSKI, PRESIDENT; MR. GARY ARMBRUST, VICE PRESIDENT; AND MR. BEN
FINK, SECRETARY/TREASURER.
B. MR. LABONSKI'S UNION ACTIVITY THROUGH JULY 10, 1978.
DURING THE FIRST HALF OF 1978, MR. LABONSKI WAS ENGAGED IN A SERIES
OF ACTIVITIES ON BEHALF OF THE UNION. IN FEBRUARY, MR. LABONSKI FILED
AN UNFAIR LABOR PRACTICE CHARGE CONCERNING A MEMORANDUM FROM MR. WARD
REQUIRING SECRETARIES TO REPORT THEIR TIME IN 15 MINUTE INCREMENTS WHICH
WAS ASSERTED TO HAVE BEEN A UNILATERAL CHANGE IN WORKING CONDITIONS
WITHOUT NEGOTIATION WITH THE UNION. IN MARCH, AN EMPLOYEE WAS INFORMED
THAT SHE WAS ABOUT TO BE DISCHARGED AND WENT TO MR. LABONSKI FOR
ASSISTANCE. AFTER AN UNSUCCESSFUL ATTEMPT TO DISCUSS THE MATTER WITH
MR. WARD, MR. LABONSKI FILED THREE CHARGES OF UNFAIR LABOR PRACTICES
OVER THE MATTER (G.C. EXHS. 2, 3 AND 4). ON MARCH 10, MR. LABONSKI
ACCOMPANIED THE EMPLOYEE TO A MEETING WITH MR. WARD AND, WHEN MR.
LABONSKI SOUGHT TO SPEAK, HE WAS TOLD TO LEAVE. THEREAFTER, MR.
LABONSKI FILED A SUIT IN THE UNITED STATES DISTRICT COURT (G.C. EXH. 5)
AND TESTIFIED AT A HEARING IN THE MATTER. AFTER MR. LABONSKI'S
TESTIMONY, THE HEARING WAS ADJOURNED, AND, AFTER A MEETING IN CHAMBERS,
THE PARTIES SIGNED A CONSENT DECREE (G.C. EXH. 6) WHICH PROVIDED, IN
PART, THAT THE DISCHARGE BE RESCINDED AND THE EMPLOYEE BE ALLOWED TO
RESIGN. SHORTLY THEREAFTER, SUPERVISOR KRIVDA IN A CONVERSATION WITH
MR. LABONSKI REFERRED TO THIS MATTER AS A "BLOOD LETTING" AND TOLD MR.
LABONSKI HE SHOULD WATCH HIS STEP (TR. 71)
IN MAY, MR. LABONSKI SERVED AS CHIEF NEGOTIATOR FOR THE UNION, WITH
MR. GARY ARMBRUST A MEMBER OF THE UNION'S NEGOTIATING TEAM, AND, AS AN
ALTERNATE, EITHER MR. BENEDICT FINK OR MR. JAMES FERRAR. MS. CATHERINE
DAVIS WAS CHIEF NEGOTIATOR FOR RESPONDENT, MR. RAYMOND BENSON SERVED AS
A MEMBER OF RESPONDENT'S NEGOTIATING TEAM AS DID MR. WARD ON OCCASION.
A CONTRACT WAS COMPLETED IN MID-MAY, 1978. ON JUNE 7, 1978, RESPONDENT
ISSUED A MEMORANDUM CONCERNING A "NO SMOKING POLICY" AND ON JUNE 8,
1978, MR. LABONSKI FILED AN UNFAIR LABOR PRACTICE CHARGE (G.C. EXH. 7),
ALLEGING THAT RESPONDENT HAD MADE NO EFFORT TO NEGOTIATE IMPACT OR
IMPLEMENTATION OF SUCH A POLICY PRIOR TO ITS ISSUANCE. ON JUNE 21,
1978, MR. BENSON MET WITH MESSRS. LABONSKI AND FINK AND ON JUNE 27,
1978, MR. WARD ADVISED MR. LABONSKI THAT HE WAS IMPLEMENTING THE POLICY
EFFECTIVE JUNE 28, 1978, BECAUSE: A) THE MEETING WITH MR. BENSON HAD
GIVEN "AMPLE OPPORTUNITY FOR DISCUSSION" AND B) "I DO NOT BELIEVE ANY
ACTION TAKEN BY THIS OFFICE . . . HAS HAD ANY IMPACT ON THE EMPLOYEES OF
THE BARGAINING UNIT" (G.C. EXH. 8). ON JUNE 30, 1978, MR. LABONSKI FILED
A COMPLAINT (G.C. EXH. 9). ON JULY 10, AT A WEEKLY STAFF MEETING, MR.
WARD ANNOUNCED THAT THERE WOULD BE A NO SMOKING POLICY IN THE CONFERENCE
ROOM AND MR. LABONSKI PROMPTLY STOOD UP AND STATED THAT THE UNION HAD
FILED FORMAL CHARGES ABOUT THE POLICY.
C. THE PITTSBURGH DETAIL
ON JULY 10, 1978, MR. WARD ASKED SUPERVISOR ROBINSON FOR THE
ITINERARIES OF JANE HANLON AND GARY ARMBRUST. MR. ROBINSON SUPPLIED THE
ITINERARIES AND TESTIFIED THAT HE DID NOT RECALL ANY PRIOR OCCASION WHEN
MR. WARD HAD ASKED FOR THE ITINERARIES OF INDIVIDUAL EMPLOYEES. MR.
ARMBRUST'S ITINERARY SHOWED THAT FOR MOST OF THE NEXT TWO WEEKS HE WAS
SCHEDULED FOR HOSPITAL VISITS IN CONJUNCTION WITH THE NEISS REDESIGN
PROGRAM.
THE PITTSBURGH RESIDENT POST WAS TO BECOME OPEN AT THE END OF THE
WEEK, JULY 14, 1978, AS THE RESIDENT OFFICER HAD RESIGNED AND WAS
LEAVING AT THAT TIME. THE PITTSBURGH RESIDENT POST HAD, SINCE ITS
INCEPTION, BEEN FILLED BY A GS-9 INVESTIGATOR. DURING JULY, 1978, IN
MR. BENSON'S ABSENCE, MR. KRIVDA WAS ACTING DIRECTOR OF OPERATIONS AND
MR. LABONSKI WAS ACTING SUPERVISOR FOR MR. KRIVDA'S GROUP FROM JULY 3
(G.C. EXH. 10). MR. KRIVDA TESTIFIED THAT ON JULY 12, 1978, AT ABOUT
8:00 A.M., MR. WARD HAD ASKED WHAT MR. LABONSKI'S DUTIES WERE AND THAT
HE HAD TOLD HIM MR. LABONSKI WAS AN ACTING SUPERVISORY INSPECTOR. LATER
IN THE DAY, ON JULY 12, MR. KRIVDA PLACED THE TIME AS ABOUT 10:00 A.M.
AND MR. WARD AS ABOUT 1:30 P.M., MR. WARD ASKED MR. KRIVDA WHAT HIS
PLANS WERE FOR FILLING THE PITTSBURGH RESIDENT POST. MR. KRIVDA REPLIED
THAT HE INTENDED TO SEND MS. JOYCE ALLEN, A GS-7 INVESTIGATOR, AND MR.
FINK, THEN A GS-9 INVESTIGATOR, FOR ABOUT A WEEK EACH. THIS HAD ALSO
BEEN SHOWN ON THE WORK PLANS MEMORANDUM DATED JULY 3, 1978 (G.C. EXH.
10) AND MR. FINK WAS AWARE THAT HE WAS SCHEDULED TO GO TO PITTSBURGH FOR
THE WEEK OF JULY 17 THROUGH 21.
MR. WARD TOLD MR. KRIVDA THAT HE WANTED A SENIOR INVESTIGATOR, (I.E.
A GS-11 INVESTIGATOR) IN THE PITTSBURGH POST FOR THE NEXT SEVERAL
MONTHS. THE PHILADELPHIA AREA OFFICE HAD ONLY TWO GS-11 INVESTIGATORS,
EXCLUSIVE OF THE RESIDENT OFFICERS IN BALTIMORE, MARYLAND, AND RICHMOND,
VIRGINIA, NAMELY LABONSKI AND ARMBRUST. /8/ MR. WARD TESTIFIED, IN
PART, AS FOLLOWS:
"I TOLD MR. KRIVDA THAT I WANTED A SENIOR INVESTIGATOR IN THE
PITTSBURGH RESIDENT POST FOR
THE NEXT SEVERAL MONTHS AND THAT I WANT THE PERSON ON DETAIL TO
REMAIN THERE FOR A MINIMUM OF
A MONTH.
"THE WITNESS: TWO WEEKS WERE NOT REQUESTED NOR GRANTED. WE DID NOT
DISCUSS A TWO WEEK
DETAIL AT THIS TIME." (TR. 555)
MR. KRIVDA TESTIFIED ON DIRECT EXAMINATION, IN PART, AS FOLLOWS:
"Q. DID MR. WARD GIVE YOU ANY INSTRUCTIONS WITH REGARD TO HOW HE
WISHED THE PITTSBURGH
RESIDENT POST TO BE FILLED?
"A. HE WANTED A SENIOR INVESTIGATOR OR A GS-11 INVESTIGATOR ASSIGNED
TO THE PITTSBURGH
RESIDENT POST. (TR. 271)
AFTER HIS RECOLLECTION WAS REFRESHED BY HIS EXAMINATION OF A PRIOR
STATEMENT, MR. KRIVDA FURTHER TESTIFIED:
" . . . I TOLD MR. WARD THAT LABONSKI WAS AN ACTING SUPERVISOR FOR ME
AND THAT GARY
ARMBRUST WAS AWAY DOING A NEISS TRAINING THING IN A TRAINING HOSPITAL
IN ELKTON, MARYLAND, AT
THE TIME.
"TO THE BEST OF MY KNOWLEDGE, I REMEMBER SAYING THAT SOMETHING TO THE
EFFECT THAT LABONSKI
IS THE ONLY ONE OR SOMETHING.
"I CAN'T REALLY RECALL THE TOTAL--
"Q. JUST RECALL IT AS BEST AS YOU CAN. DO YOU REMEMBER GENERALLY
TELLING MR. WARD, THAT
LABONSKI WAS THE ONLY PERSON AVAILABLE TO BE SENT AT THAT TIME?
"A. YES." (TR. 276-277).
AFTER THE MEETING WITH MR. WARD, MR. KRIVDA CALLED MR. LABONSKI TO
HIS OFFICE AND TOLD HIM HE WAS BEING DETAILED TO PITTSBURGH FOR ONE
MONTH. /9/ MR. LABONSKI WAS DISMAYED AND TOLD MR. KRIVDA IT WOULD
IMPOSE A HARDSHIP FOR HIM BECAUSE HIS WIFE WAS IN ADVANCED PREGNANCY AND
WAS HAVING DIFFICULTY. TO APPRECIATE THE MAGNITUDE OF THE PROBLEM TO
MR. LABONSKI, HIS WIFE HAD HAD FIVE PRIOR MISCARRIAGES AND HER PRESENT
PREGNANCY, WHICH HAD BEGUN IN DECEMBER 1977, WAS BEING CONTINUED BY THE
USE OF DAILY MEDICATION WHICH CAUSED APPRECIABLE PHYSICAL PAIN. MR.
WARD WAS AWARE OF MRS. LABONSKI'S PREGNANCY AND FROM HIS ACTION AT A
STAFF MEETING I DRAW THE INFERENCE THAT MR. WARD WAS AWARE THAT HER
PREGNANCY WAS NOTABLE. IN MAY, 1978, MR. LABONSKI HAD SPOKEN TO MR.
BENSON /10/ ABOUT HIS WIFE'S PREGNANCY AND HAD ASKED TO DOUBLE-UP ON
SOME ROAD TRIPS IN ORDER THAT HE MIGHT BE SPARED GOING OUT OF TOWN IN
LATE AUGUST OR EARLY SEPTEMBER AND THAT MR. BENSON SAID, " . . . I
SHOULD NOT WORRY. I WOULD NOT BE TRAVELING AT THAT TIME." (TR. 135,
SEE, ALSO, TR. 83, 137).
WHEN MR. KRIVDA TOLD HIM, "HE (MR. WARD) WANTS YOU OUT THERE AND IT
HAS TO BE A MONTH" (TR. 81), MR. LABONSKI, AFTER TELLING MR. KRIVDA THAT
HE (LABONSKI) COULDN'T DO IT, TOLD MR. KRIVDA,
" . . . THAT I WOULD CALL MR. LACY WARD AND PERSONALLY EXPRESS MY
DIFFICULTY WITH THE
ASSIGNMENT. MR. FRANK KRIVDA TOLD ME, 'GO AHEAD. GIVE IT A TRY.'"
(TR. 81).
MR. LABONSKI WENT TO HIS OFFICE AND CALLED MR. WARD. MR. LABONSKI
TESTIFIED THAT THE FOLLOWING CONVERSATION ENSUED.
" . . . LACY, FRANK TELLS ME I'M TO GO TO PITTSBURGH FOR A MONTH AND
I'M HAVING A GREAT
DEAL OF DIFFICULTY WITH THIS, MY WIFE IS EIGHT MONTHS PREGNANT.
"LACY IMMEDIATELY SAID THAT, 'IF YOU HAVE A PROBLEM WITH ONE OF YOUR
ASSIGNMENTS, SEE YOUR
SUPERVISOR. HE'S THE ONE THAT MAKES UP YOUR ASSIGNMENTS,' AND HE
HUNG UP THE
PHONE." (TR. 83-84).
MR. WARD TESTIFIED AS TO THE SAME TELEPHONE CONVERSATION AS FOLLOWS:
"HE CALLED (LABONSKI) AND HE SAID, 'LACY, FRANK TELLS ME I'VE GOT TO
GO TO PITTSBURGH FOR A
MONTH AND I'M HAVING SOME DIFFICULTY WITH IT.
"Q. HE HAD SOME DIFFICULTY WITH IT?
"A. YES.
Q. DID HE TELL YOU HE WAS HAVING A PROBLEM WITH IT?
"A. PROBLEM, DIFFICULTY; I RECALL DIFFICULTY.
"Q. YOU TOLD HIM TO GO TALK TO THE SUPERVISOR. IS THAT CORRECT?
"A. I DID.
"Q. WHY DID YOU TELL HIM TO DO THAT?
"A. WELL, PRIMARILY BECAUSE THAT IS THE WAY I MANAGE. I DO NOT,
ONCE I GIVE A SUPERVISOR
AN ASSIGNMENT I EXPECT THE SUPERVISOR TO COME BACK TO ME AND
COMMUNICATE IF THERE ARE ANY
DIFFICULTIES IN CARRYING OUT THAT ASSIGNMENT.
"I FIND THAT IT DOES CREATE PROBLEMS FOR ME TO INTERCEDE ONCE THE
SUPERVISOR HAS GIVEN AN
ASSIGNMENT TO AN EMPLOYEE.
"THAT'S MY GENERAL RULE OF MANAGEMENT.
"Q. DO YOU EXPECT THE SUPERVISOR TO COME BACK TO YOU WITH EVERY
PROBLEM EVERY EMPLOYEE
RAISES?
"A. WELL, IF IT IS A PROBLEM THAT THEY CONSIDER THAT THEY CANNOT
TAKE CARE OF, OR IF IT IS
A PROBLEM THAT THEY FEEL WARRANTS MY BEING INFORMED. YES, I WOULD
EXPECT THAT THEY--
"Q. LET ME ASK YOU THE QUESTION AGAIN. DO YOU EXPECT THEM TO COME
TO YOU WITH EVERY
PROBLEM THAT IS PRESENTED?
"A. I DO NOT.
"Q. SO YOU DO GIVE YOUR SUPERVISORS SOME DISCRETION TO HANDLE
PROBLEMS. IS THAT CORRECT?
"A. I GIVE THEM SOME DISCRETION, YES." (TR. 570-572).
IMMEDIATELY AFTER MR. LABONSKI CALLED MR. WARD, MR. WARD CALLED MR.
KRIVDA. MR. WARD TESTIFIED THAT THE FOLLOWING TRANSPIRED:
"A. I CALLED HIM (KRIVDA) AND I SAID, 'FRANK, RAY LABONSKI JUST
CALLED ME ABOUT THE DETAIL
TO THE PITTSBURGH RESIDENT POST, AND I TOLD HIM TO DISCUSS ANY
PROBLEMS THAT HE MIGHT HAVE
WITH YOU.'
"SO THAT HE WOULD BE ALERTED THAT I HAD NOT ENTERED ANY DISCUSSION OR
TAKEN ANY ACTION. AT
THAT TIME I SAID, 'YOU'RE THE SUPERVISOR, YOUR'RE IN CHARGE, SO TAKE
CARE OF THE ASSIGNMENT.'
"HE SAID, 'SO DO YOU MEAN THAT YOU WANT A GS-11 IN PITTSBURGH.' I
SAID, 'I THOUGHT THAT
WAS WHAT MY INSTRUCTIONS WERE AT FIRST.'
"THAT CONCLUDED THE CONVERSATION AND HE SAID, 'OKAY.'" (TR. 556).
MR. KRIVDA TESTIFIED AS TO HIS CONVERSATION WITH MR. WARD AS FOLLOWS:
"A. MR. WARD SAID, 'FRANK, IF YOU CAN'T HANDLE THAT JOB OUT THERE ON
THE FLOOR,' OR
SOMETHING TO THAT EFFECT, I'M GOING TO GET SOMEONE ELSE TO DO IT.'
"Q. DID HE SAY ANYTHING ABOUT MR. LABONSKI WAS TO GO TO PITTSBURGH
FOR A MONTH?
"A. NO. I THEN RESPONDED THAT, 'DO I UNDERSTAND CORRECTLY, MR.
WARD, WANT A GS-11 OR
SENIOR INVESTIGATOR ASSIGNED TO THE PITTSBURGH RESIDENT POST?'
"HE SAID, 'YES.' HE SAID, 'YOU ARE THE SUPERVISOR OUT THERE,' OR 'YOU
ARE THE
MANAGER,' SOMETHING TO THAT EFFECT, 'YOU DO WHAT YOU WANT.'" (TR.
280) (SEE, ALSO,
TR. 311-312).
AS SOON AS MR. KRIVDA WAS OFF THE TELEPHONE, MR. LABONSKI RETURNED TO
MR. KRIVDA'S OFFICE AND HE AGAIN DISCUSSED THE HARDSHIP OF HIS GOING TO
PITTSBURGH BECAUSE OF HIS WIFE'S PREGNANCY. MR. LABONSKI SAID THAT
PERHAPS MR. ARMBRUST COULD GO; BUT MR. KRIVDA REPLIED THAT MR. ARMBRUST
COULD NOT GO NOW; THAT THE EARLIEST MR. ARMBRUST COULD GO WOULD BE IN
TWO WEEKS. MR. KRIVDA AND MR. LABONSKI AGREED THAT MR. LABONSKI WOULD
GO TO PITTSBURGH FOR TWO WEEKS TO BE FOLLOWED BY MR. ARMBRUST. MR.
KRIVDA TOLD MR. ROBINSON THAT HE HAD DETAILED MR. LABONSKI TO PITTSBURGH
FOR TWO WEEKS (JULY 17-21 AND 24-28); MR. LABONSKI TOLD MR. ARMBRUST
ON JULY 12 THAT HE WAS APPREHENSIVE ABOUT GOING TO PITTSBURGH BECAUSE OF
HIS WIFE'S PREGNANCY AND MR. ARMBRUST TOLD MR. LABONSKI,
"I WOULD BE HAPPY TO-- AFTER HE RETURNED FROM HIS TWO WEEK DETAIL--
GO THERE FOR WHATEVER
LENGTH OF TIME WAS NECESSARY UNTIL HIS WIFE WAS OUT OF DANGER AND THE
BABY HAD BEEN BORN, ET
CETRA." (TR. 404). MR. ARMBRUST FURTHER TESTIFIED THAT ON THE 24TH
OF JULY, HE TALKED ABOUT THE MATTER WITH HIS IMMEDIATE SUPERVISOR, MR.
ROBINSON, AND WITH MR. BENSON; AND THAT MR. ROBINSON HAD TOLD HIM HE
WOULD BE GOING TO PITTSBURGH FOR IN EXCESS OF A MONTH. "I BELIEVE IT
WAS ORIGINALLY AGREED UPON TO BE A MONTH AND A HALF." (TR. 404).
D. MR. LABONSKI'S SECOND DETAIL TO PITTSBURGH
MR. LABONSKI WAS BACK FROM THE TWO WEEK DETAIL AND IN THE OFFICE ON
MONDAY, JULY 31 AND WAS PRESENT FOR THE WEEKLY STAFF MEETING. MR.
ARMBRUST WAS ALSO AT THE OFFICE BUT HAD HIS BAG PACKED, HAD ASSEMBLED
MATERIALS FOR THE TRIP TO PITTSBURGH AND WAS IN THE OFFICE WAITING TO
LEAVE. BEYOND ADMITTING THAT HE SAW MR. LABONSKI IN THE OFFICE ON JULY
31, 1978 (TR. 560), MR. WARD WAS NOT QUESTIONED ABOUT THE EVENTS OF
JULY 31; HOWEVER, MR. WARD'S ACTIONS ON JULY 31, 1978, ARE FULLY
DETAILED IN THE TESTIMONY OF OTHER WITNESSES AND WHOLLY UNDENIED BY
RESPONDENT. MR. KRIVDA TESTIFIED THAT, AFTER THE STAFF MEETING, MR.
WARD CALLED A SENIOR STAFF MEETING AT WHICH MR. WARD ASKED MR. BENSON
WHAT MR. LABONSKI WAS DOING BACK FROM PITTSBURGH; THAT MR. BENSON WAS A
LITTLE UNCERTAIN AND THAT HE, KRIVDA, RESPONDED AND SAID,
" . . . I ASSIGNED RAY LABONSKI UP FOR TWO WEEKS AND HE IS BACK FROM
HIS TWO-WEEK DETAIL.
. . . .
"Q. WHAT DID MR. WARD DO AND SAY?
"A. MR. WARD, AGAIN, HE REQUESTED FROM MR. BENSON WHAT RAY LABONSKI
WAS DOING BACK IN THE
AREA OFFICE. I RESPONDED AND SAID THAT I ASSIGNED MR. LABONSKI FOR A
TWO-WEEK DETAIL IN THE
PITTSBURGH RESIDENT POST." (TR. 294-295). THE STAFF MEETING AND
SENIOR STAFF MEETING HAD BEEN HELD EARLY IN THE MORNING. MR. KRIVDA
TESTIFIED THAT AT ABOUT LUNCH TIME, MR. WARD CAME TO HIM, KRIVDA, AND
ASKED WHY I DID NOT SEND RAY LABONSKI OUT TO PITTSBURGH FOR A MONTH AND:
"I EXPLAINED TO HIM THAT I WAS UNDER THE IMPRESSION THAT I, TO THE
BEST OF MY KNOWLEDGE,
THAT I SENT HIM OUT FOR TWO WEEKS BASED ON MY UNDERSTANDING OF (SIC)
THE ORDER
WAS." (TR. 296). AT SOME TIME ON THE MORNING OF JULY 31, 1978, MR.
KRIVDA TESTIFIED THAT MR. WARD TOLD HIM TO STOP MR. ARMBRUST FROM GOING
TO PITTSBURGH (TR. 322). MR. ARMBRUST TESTIFIED THAT AT ABOUT NOON MR.
KRIVDA TOLD HIM HIS DETAIL TO PITTSBURGH HAD BEEN CANCELLED (TR. 406).
MR. ROBINSON TESTIFIED THAT, AFTER THE GENERAL STAFF MEETING, MR.
WARD CALLED HIM TO HIS OFFICE AND THAT THE FOLLOWING CONVERSATION TOOK
PLACE:
" . . . HE (MR. WARD) ASKED ME WHY WAS RAY LABONSKI PRESENT AT THE
PHILADELPHIA AREA
OFFICE, AT THE OFFICE.
"I RESPONDED TO MR. WARD THAT I HAD-- IT WAS MY UNDERSTANDING HIS
DETAIL WAS OVER AT THE
PITTSBURGH RESIDENT POST AND, THEREFORE, HE WAS BACK IN THE OFFICE AT
HIS NORMAL DUTY STATION,
I GUESS YOU WOULD SAY.
"I DON'T RECALL OF ANY FURTHER REMARKS THAT MR. WARD MADE AT THAT
TIME." (TR. 374).
MR. ROBINSON FURTHER TESTIFIED THAT SHORTLY AFTER LUNCH ON JULY 31,
MR. BENSON CAME TO HIS OFFICE AND THE FOLLOWING CONVERSATION TOOK PLACE:
"RAY BENSON . . . TOLD ME THAT HE WANTED RAY LABONSKI TO BE-- HE
WANTED ME TO ASSIGN RAY
LABONSKI BACK TO THE PITTSBURGH RESIDENT POST EFFECTIVE IMMEDIATELY,
OR EFFECTIVE, MEANING
LIKE THE NEXT DAY FOR A PERIOD OF TWO WEEKS.
"I ASKED RAY-- I TOLD RAY BENSON THAT RAY LABONSKI HAD INDICATED HE
HAD SOME-- HIS WIFE HAD
SOME PROBLEMS. SHE WAS EXPECTING AND HAD SOME PREVIOUS PROBLEM.
"THERE WAS A HARDSHIP TYPE SITUATION HERE AND THAT HE HAD ASKED, I
BELIEVE IT WAS FRANK
PREVIOUSLY, WHEN HE WAS INITIALLY ASSIGNED TO PITTSBURGH, THAT HE NOT
BE PERMITTED-- THAT HE
NOT GO, THAT SOMEONE ELSE WOULD GO IN HIS PLACE.
"AND RAY SAID THAT HE WAS DIRECTING ME TO TELL RAY LABONSKI, IN OTHER
WORDS, AN ORDER TO
TELL RAY LABONSKI, TO GO BACK TO THE PITTSBURGH RESIDENT POST FOR A
PERIOD OF TWO WEEKS
EFFECTIVELY IMMEDIATELY.
"I SAID, 'WELL, RAY, WHAT IF, 'THIS IS RAY BENSON, 'WHAT IF RAY
LABONSKI REFUSED TO GO TO
THE PITTSBURGH RESIDENT POST?'
"AND HE SAID THIS WOULD BE INSUBORDINATION AND I WANT YOU TO CHARGE
HIM WITH SAME IF HE
FAILS TO COMPLY. AND I ASKED RAY, 'WELL, IS THIS DIRECTIVE COMING
FROM YOU OR DOES THIS COME
FROM MR. WARD?'
"HE SAID, 'IT COMES FROM MR. WARD BUT . . . IF YOU ASK ME IF HE SAID
THAT, I'LL SAY, NO
. . . .
"Q. HE WOULD DENY THAT THE ORDER CAME FROM MR. WARD?
"A. THAT'S CORRECT, YES." (TR. 374-375).
IMMEDIATELY AFTER MR. BENSON LEFT, MR. ROBINSON CALLED MR. LABONSKI
TO HIS OFFICE AND TOLD HIM HE WAS ASSIGNING HIM BACK TO PITTSBURGH FOR
TWO WEEKS EFFECTIVE IMMEDIATELY. MR. ROBINSON TESTIFIED THAT THE
FOLLOWING CONVERSATION ENSUED:
"AND HE ASKED ME, 'WELL, MY WIFE IS HAVING PROBLEMS. THIS IS A
HARDSHIP FOR ME. ISN'T
THERE SOMEONE ELSE THAT CAN GO?'
"AND I INDICATED, 'NO. THERE IS NO ONE ELSE.'
"AND HE INDICATED, RAY LABONSKI INDICATED TO ME, 'WELL, WHAT IF I
REFUSE TO GO?'
"I SAID, 'WELL, YOU WOULD BE CHARGED WITH INSUBORDINATION.'
"AND RAY ASKED ME, 'WELL, IS THIS COMING FROM RAY BENSON OR DOES IT
COME FROM MR. WARD?'
"I SAID OR INDICATED BY A NOD OF THE HEAD POINTING UP TO THE OFFICE
UP FROM THAT IT CAME
FROM MR. WARD. I SAID, 'IT'S BEYOND MY CONTROL.'" (TR. 376) (SEE,
ALSO, MR. LABONSKI'S
TESTIMONY, TR. 89-90). MR. LABONSKI WENT TO PITTSBURGH THE FOLLOWING
DAY, AUGUST 1, 1978, AND REMAINED THERE UNTIL AUGUST 11, 1978. /11/ IN
THE AFTERNOON OF JULY 31, 1978, MR. BENSON CAME TO MR. KRIVDA AND TOLD
HIM HE HAD TO GIVE HIM AN ORAL REPRIMAND FOR NOT SENDING MR. LABONSKI TO
PITTSBURGH FOR A MONTH; THAT HE HAD HAD A DISCUSSION WITH MR. WARD AND
MR. WARD DIRECTED HIM TO DO THIS. (TR. 324-325).
E. MR. LABONSKI DETAILED TO RICHMOND
ON OCTOBER 16, 1978, MR. LABONSKI WAS DETAILED TO THE RICHMOND,
VIRGINIA, RESIDENT POST FOR A WEEK. MR. LABONSKI TESTIFIED THAT THERE
WAS NO WORK TO DO IN RICHMOND; THAT HE CALLED MR. ROBINSON EACH DAY
ASKING FOR WORK TO NO AVAIL. AFTER HE RETURNED TO PHILADELPHIA MR.
LABONSKI TESTIFIED THAT HE HAD TOLD MR. KRIVDA THAT THE RICHMOND
ASSIGNMENT HAD BEEN STUPID BECAUSE THERE HAD BEEN NO WORK; THAT MR.
KRIVDA TOLD HIM THAT ON OCTOBER 16, MS. RENEE WEBB, AS ACTING DIRECTOR
OF OPERATIONS, HAD COME TO HIM AND ASKED WHAT HE WAS GOING TO DO WITH
THE RICHMOND RESIDENT POST AS THE RESIDENT INVESTIGATOR HAD BEEN
DETAILED TO PHILADELPHIA; THAT HE HAD SAID "NOTHING." THEY WEREN'T
GOING TO FILL IT BECAUSE THE WORK HAD BEEN CLEANED UP; BUT MS. WEBB
SAID, "SEND LABONSKI."
F. MARIA JAURIQUE'S ANNUAL AND SICK LEAVE TO NOVEMBER 15,
1978
ON AUGUST 30, 1978, MS. JAURIGUE FILED AN APPLICATION FOR ANNUAL
LEAVE FROM DECEMBER 21, 1978, TO JANUARY 15, 1979. THIS LEAVE REQUEST
WAS APPROVED, IN WRITING, BY MR. WARD ON SEPTEMBER 6, 1978 (RES. EXH.
20). MS. JAURIGUE HAD BEEN IN POOR HEALTH FOR SOME TIME AND ON NOVEMBER
14, 1978, DR. PONTARELLI INSTRUCTED HER TO UNDERGO AN EXTENSIVE MEDICAL
SURVEY FOR PERSISTENT AND RECURRING ABDOMINAL PAIN (G.C. EXH. 10).
BECAUSE OF A HISTORY OF CANCER IN HER FAMILY AND HER CONTINUING PAIN AND
DISCOMFORT, MS. JAURIGUE FEARED THAT SHE MIGHT HAVE CANCER, WHICH FEAR,
UNFORTUNATELY, WAS LATER CONFIRMED WHEN SHE UNDERWENT SURGERY IN
DECEMBER, 1978. HOWEVER, ON NOVEMBER 14, 1978, MS. JAURIGUE KNEW ONLY
THAT SHE WAS ILL; AND THAT DR. PONTARELLI HAD TOLD HER TO UNDERGO
EXTENSIVE TESTS AND POSSIBLE SURGERY. SINCE HER FAMILY WAS IN LAS
CRUCES, NEW MEXICO, MS. JAURIGUE WANTED TO GO THERE FOR THE MEDICAL
PROCEDURES. ON NOVEMBER 15, 1978, MS. JAURIGUE MET WITH MR. WARD, MS.
RENEE WEBB AND MS. MARJORIE STEWART /12/ AND MS. JAURIGUE TESTIFIED
WITHOUT CONTRADICTION THAT SHE STATED AT THAT TIME THAT SHE WAS SICK,
THAT SHE WOULD BE REQUESTING FURTHER ANNUAL AND SICK LEAVE; THAT SHE
WOULD GIVE MR. WARD THE SPECIFIC DATES WITHIN A DAY OR TWO; AND THAT
SHE NEEDED SOME TIME TO MAKE ARRANGEMENTS IN PHILADELPHIA BEFORE SHE
LEFT FOR NEW MEXICO. MR. WARD SAID "OKAY, GO AHEAD AND SUBMIT YOUR
REQUEST." (TR. 448. AT THIS MEETING, THE WORKLOAD WAS DISCUSSED AND MR.
WARD TOLD MS. JAURIGUE THAT SHE WOULD NOT BE DIRECTOR OF THE DIVISION
ANY MORE.
G. MARIA JAURIQUE'S STATEMENT TO UNION DISCLOSED TO
MR. WARD ON NOVEMBER 15, 1978.
ON OCTOBER 24, 1978, MS. JAURIGUE MET WITH MR. LABONSKI AND MR.
ARMBRUST AND TOLD THEM THAT IN EARLY JULY, 1978, MR. WARD HAD TOLD HER
THAT HE WAS GOING TO PUNISH MR. LABONSKI FOR HIS UNION ACTIVITY. MR.
LABONSKI TOLD MS. JAURIGUE HE WOULD LIKE A WRITTEN STATEMENT FROM HER
BUT WARNED HER THAT IF SHE GAVE A WRITTEN STATEMENT " . . . IT WOULD
MOST LIKELY MEAN A GREAT DEAL OF HEAT FROM MR. WARD" (TR. 99). MS.
JAURIGUE SAID SHE WOULD THINK IT OVER AND, ON OCTOBER 25, 1978, SHE GAVE
MR. LABONSKI A HANDWRITTEN STATEMENT (ATTACHMENT TO G.C. EXH. 11). THE
WRITTEN STATEMENT RECITED, IN PART, THAT:
" . . . BECAUSE OF UNION ACTIVITY SUCH AS THE 'NO SMOKING SIGN IN THE
CONFERENCE
ROOM' INCIDENT, HE WAS GOING TO HAVE YOU (LABONSKI) DETAILED TO THE
PITTSBURGH RESIDENT POST
FOR A WHOLE MONTH.
"MR. WARD WAS AWARE THAT YOUR WIFE WAS DUE TO HAVE YOUR BABY WITHIN A
COUPLE OF WEEKS. I
ASKED IF THERE WAS GOING TO BE A PROBLEM FOR YOU. MR. WARD RESPONDED
BY SAYING THAT HE WAS
SENT TO KOREA WHEN HIS WIFE WAS PREGNANT SO WHY NOT SEND YOU TO
PITTSBURGH."
ON OCTOBER 30, 1978, MR. LABONSKI FILED AN UNFAIR LABOR PRACTICE
CHARGE ALLEGING THAT HIS DETAIL TO PITTSBURGH FOR ONE MONTH HAD BEEN TO
DISCIPLINE HIM FOR ACTIVITY AS PRESIDENT OF THE UNION (G.C. EXH. 1A).
ON NOVEMBER 15, 1978, MR. LABONSKI FILED A LETTER WHICH, FOR THE FIRST
TIME, DISCLOSED MS. JAURIQUE'S STATEMENT (G.C. EXH. 11) AND MR. WARD
STATED THAT HE FIRST SAW JAURIQUE'S STATEMENT ON NOVEMBER 15, 1978 (TR.
560).
H. ACTING DIRECTOR WEBB APPROVED JAURIQUE'S LEAVE REQUESTS
ON NOVEMBER 17, 1978.
MR. WARD WAS OUT OF THE OFFICE ON NOVEMBER 17, 1978, AND MS. WEBB WAS
ACTING DIRECTOR OF THE AREA OFFICE. MS. JAURIGUE PRESENTED THE
FOLLOWING LEAVE REQUESTS TO MS. WEBB WHO APPROVED THEM: ANNUAL LEAVE
11/20/78 TO 11/24/78; SICK LEAVE 11/27/78 TO 12/8/78 /13/ MS. JAURIGUE
SPENT MOST OF NOVEMBER 17 WITH MS. WEBB, REVIEWING THE WORK OF THE
COMMUNITY SERVICES DIVISION, AND WITH MS. GLORIA WHITE, BRIEFING HER " .
. . AS TO WHAT WAS REMAINING AROUND TO BE DONE . . . . (TR. 495).
I. LEAVE APPROVED BY MS. WEBB CANCELLED BY MS. WEBB AFTER
CALL FROM MR. WARD
MS. WEBB WAS IN JAURIQUE'S OFFICE WHEN MR. WARD CALLED AT ABOUT 4:00
P.M. TO SPEAK TO MS. WEBB. MS. WEBB TOOK THE CALL IN HER OWN OFFICE AND
WHEN SHE RETURNED AT ABOUT 4:25 P.M., SHE ASKED FOR MS. JAURIQUE'S LEAVE
SLIPS AND SAID THAT THE LEAVE WAS NOW DISAPPROVED (TR. 451). MS.
JAURIGUE TOLD HER SHE, JAURIGUE, WAS VERY SICK AT THAT TIME AND REALLY
NEEDED TO BE OFF ON SICK LEAVE; BUT MS. WEBB TOLD MS. JAURIGUE THAT IF
SHE DIDN'T SHOW UP FOR WORK ON MONDAY, NOVEMBER 20, SHE WOULD BE PLACED
ON AWOL, OR LEAVE WITHOUT PAY. MS. JAURIGUE FILED A FURTHER
APPLICATION FOR ANNUAL LEAVE FROM 11/21/78 TO 11/24/78, I.E. THE
APPLICATION FILED EARLIER IN THE DAY AND APPROVED BY MS. WEBB HAD BEEN
FOR LEAVE FROM 11/20/78 TO 11/24/78, BUT MS. WEBB, AFTER TAKING BACK THE
APPROVED LEAVE SLIPS AND CANCELLING THE LEAVE, HAD ORDERED MS. JAURIGUE
TO REPORT FOR WORK ON NOVEMBER 20, 1978.
J. MR. WARD, ON NOVEMBER 20, 1978, CANCELLED THE ANNUAL
LEAVE HE HAD APPROVED ON SEPTEMBER 6.
ON MONDAY, NOVEMBER 20, 1978, MR. WARD MET WITH MS. JAURIGUE AND TOLD
HER THE ANNUAL LEAVE HE HAD PREVIOUSLY APPROVED ON SEPTEMBER 6, 1978,
WAS NOW DISAPPROVED AND HE PICKED UP WHAT PURPORTED TO BE THAT LEAVE
SLIP AND TORE IT IN HALF. THE FACT THAT RESPONDENT PRODUCED THAT LEAVE
SLIP INTACT (RES. EXH. 20) DOES NOT REFUTE MS. JAURIQUE'S WHOLLY
CREDIBLE TESTIMONY THAT MR. WARD DID, IN FACT, PERFORM THE THEATRICAL
ACT OF TEARING IN HALF A LEAVE SLIP WHICH MS. JAURIGUE BELIEVED, AS MR.
WARD OBVIOUSLY INTENDED SHE SHOULD BELIEVE, WAS HER APPROVED LEAVE SLIP.
MR. WARD STATED THAT HE COULD NOT GRANT HER ANY ANNUAL LEAVE BECAUSE OF
THE WORKLOAD. MS. JAURIGUE TOLD MR. WARD SHE WAS SICK; THAT SHE WAS IN
PAIN AND RUNNING A TEMPERATURE; AND THAT SHE PLANNED TO USE HER ANNUAL
LEAVE AS SICK LEAVE. MR. WARD SAID HE COULDN'T APPROVE ANY LEAVE FOR
HER THAT WEEK. MR. WARD SAID HE WOULD GIVE HER A LETTER LATER IN THE
DAY SO THERE WOULD BE NO MISUNDERSTANDING.
MR. WARD GAVE MS. JAURIGUE A LETTER LATER IN THE DAY (RES. EXH. 8)
WHICH ALTERED, SOMEWHAT, HIS EARLIER STATEMENTS TO MS. JAURIGUE AND
WHICH CONTAINED ONE OBVIOUSLY FALSE STATEMENT AND OTHER SELF-SERVING
INFERENCES WHOLLY UNSUPPORTED BY THE RECORD AND, INDEED, CONTRARY TO THE
RECORD. MR. WARD'S STATEMENT THAT "I VERBALLY INDICATED A FAVORABLE
RESPONSE TO THAT APPLICATION ON 9-6-78" IS FALSE. MR. WARD APPROVED THE
APPLICATION, IN WRITING, ON 9/6/78 AS RESPONDENT'S EXHIBIT 20 PLAINLY
SHOWS. MR. WARD'S STATEMENT THAT "THIS RELUCTANT APPROVAL WAS BASED ON
YOUR ASSURANCE THAT THE WORKLOAD IN THE PHILADELPHIA OFFICE WOULD NOT BE
ADVERSELY AFFECTED BY THAT EXTENDED LEAVE PERIOD" (12/21/78-1/15/79) IS
WITHOUT SUPPORT IN THE RECORD. THE RECORD SHOWS: A) THE APPLICATION
FOR LEAVE WAS SUBMITTED AUGUST 30, 1978, AND APPROVED BY MR. WARD
SEPTEMBER 6, 1978; B) MS. JAURIGUE TESTIFIED CREDIBLY AND WHOLLY
WITHOUT CONTRADICTION THAT ON NOVEMBER 15, 1978, WHEN SHE TOLD MR. WARD,
IN THE PRESENCE OF MS. WEBB AND MS. STEWART, THAT SHE WOULD BE
REQUESTING FURTHER ANNUAL AND SICK LEAVE, MR. WARD SAID "OKAY, GO AHEAD
AND SUBMIT YOUR REQUEST"; THAT WORKLOAD HAD BEEN DISCUSSED AND MR. WARD
HAD SAID THAT SHE WOULD NOT BE DIRECTOR OF THE DIVISION ANY MORE; C)
THAT ON NOVEMBER 17, 1978, MS. WEBB, ACTING DIRECTOR, HAD APPROVED MS.
JAURIQUE'S TWO ADDITIONAL LEAVE REQUESTS (11/20-12/8; SEE N. 10,
SUPRA); THAT MS. JAURIGUE HAD SPENT MOST OF THE DAY, NOVEMBER 17, GOING
OVER PENDING AND ANTICIPATED WORK WITH MS. WEBB AND WITH MS. WHITE, AND
THAT AT NO POINT PRIOR TO MR. WARD'S CALL AT 4:00 P.M. HAD MS. WEBB
EXPRESSED ANY PROBLEM OR RESERVATION ABOUT MS. JAURIQUE'S ABSENCE.
INDEED, HER ACTION WHOLLY NEGATED ANY PROBLEM. ACCORDINGLY, I GIVE NO
PROBATIVE WEIGHT TO MR. WARD'S UNSUPPORTED STATEMENTS CONTAINED IN HIS
LETTER OF NOVEMBER 20, 1978.
IN HIS LETTER OF NOVEMBER 20, 1978, MR. WARD AFFIRMED HIS ORAL
DISAPPROVAL OF ANNUAL LEAVE FOR 11/20-11/24; BUT, CONTRARY TO HIS PRIOR
OUTRIGHT DISAPPROVAL STATED THAT HE WOULD GIVE FAVORABLE CONSIDERATION
TO A REQUEST FOR LEAVE FOR FRIDAY, NOVEMBER 24; GAVE TENTATIVE APPROVAL
FOR SICK LEAVE FROM 11/27-12/8/78, UPON SUBMISSION OF A PHYSICIAN'S
STATEMENT /14/ ; AND STATED THAT HE HAD RECONSIDERED "THE 8-30-78
APPLICATION FOR 128 HOURS OF ANNUAL LEAVE AND WAS "PLACING THIS REQUEST
IN ABEYANCE PENDING THE OUTCOME OF YOUR ANTICIPATED EXAMINATION AND
TREATMENT, IF INDICATED. YOU SHOULD NOT CONSIDER YOUR APPLICATION . . .
APPROVED AT THIS TIME."
K. MR. LABONSKI FILED SUIT IN U.S. DISTRICT COURT ON
NOVEMBER 20, 1978.
ON NOVEMBER 20, 1978, MR. LABONSKI FILED CIVIL ACTION NO. 78-3900
AGAINST LACY B. WARD, DIRECTOR, SEEKING A TEMPORARY RESTRAINING ORDER TO
PREVENT THE WITHHOLDING OF SICK LEAVE FROM MS. JAURIGUE (G.C. EXH. 12).
A HEARING WAS HELD IN THE UNITED STATES DISTRICT COURT ON NOVEMBER 21,
1978, AND, AT THE CONCLUSION OF THE HEARING, A STIPULATION WAS ENTERED
INTO BY THE PARTIES, APPROVED BY JUDGE BECKER ON DECEMBER 4, AND FILED
ON DECEMBER 5, 1978, WHICH PROVIDED, IN PART, AS FOLLOWS:
"IT IS HEREBY AGREED . . . THAT MARIA R. JAURIGUE . . . SHALL GO ON
AN APPROVED SICK LEAVE
STATUS AS OF 8:00 A.M. ON NOVEMBER 22, 1978 AND SHALL REMAIN IN SAID
STATUS UNTIL 4:30 P.M. ON
DECEMBER 6, 1978. IT IS UNDERSTOOD AND AGREED THAT MS. JAURIGUE WILL
BRING A SIGNED STATEMENT
FROM A DOCTOR WHICH WILL INDICATE THAT MEDICAL SERVICES HAVE BEEN
RENDERED TO HER DURING SAID
SICK LEAVE PERIOD AND/OR THAT HER ABSENCE FROM WORK WAS MEDICALLY
NECESSARY. IN THE ABSENCE
OF THE AFORESAID DOCUMENTATION, THE C.P.S.C. MAY VIEW THE TIME TAKEN
BY MS. JAURIGUE AS OTHER
THAN AN APPROVED SICK LEAVE PERIOD.
"IF HER MEDICAL CONDITION IS SUCH THAT SHE CAN RETURN EARLIER . . .
SHE SHALL DO SO.
"IF HER MEDICAL CONDITION IS SUCH THAT SHE MUST, FOR MEDICAL REASONS,
EXTEND HER SICK LEAVE
PERIOD SHE MAY DO SO AS IS NECESSARY INSOFAR AS SAID EXTENSION
CONFORMS TO RELEVANT LAW AND
REGULATION.
. . . " (G.C. EXH. 13)
PURSUANT TO THE ABOVE STIPULATION, ON JANUARY 9, 1979, MS. JAURIGUE
REQUESTED SICK LEAVE FOR 11/22/78 THROUGH 1/8/79 (RES. EXH. 12).
L. MS. JAURIGUE REQUIRED TO SUBMIT PHYSICIAN'S STATEMENTS
IN JANUARY, 1979
MS. JAURIGUE RETURNED TO PHILADELPHIA ON JANUARY 7, 1979; BUT THE
TRIP PROVED TAXING AND SHE CALLED MR. WARD ON JANUARY 8 AND ASKED FOR
SICK LEAVE THAT DAY WHICH HE GRANTED. ON JANUARY 8, 1979, MR. WARD
WROTE A MEMORANDUM TO MR. BENSON, ACTING DIRECTOR JANUARY 9-12 WHILE MR.
WARD ATTENDED A COURSE AT TEMPLE UNIVERSITY, IN WHICH HE STATED, IN
PART, AS FOLLOWS:
" . . . YOU'RE PROBABLY AWARE THAT MS. JAURIGUE HAS BEEN ON LEAVE
SINCE NOVEMBER 22,
1978. THE STATUS OF THIS LEAVE HAS NOT BEEN DETERMINED AND THEREFORE
YOU SHOULD NOT ATTEMPT
TO APPROVE THIS OR ANY OTHER LEAVE FOR MS. JAURIGUE DURING MY
ABSENCE.
. . . (G.C. EXH. 23)
ON JANUARY 9, 1979, MS. JAURIGUE SUBMITTED THE APPLICATION FOR SICK
LEAVE, REFERRED TO ABOVE, FOR THE PERIOD 11/22/78 THROUGH 1/8/79 (RES.
EXH. 12), AND MR. BENSON GAVE HER A MEMORANDUM WHICH PROVIDED AS
FOLLOWS:
"ANY SICK LEAVE TAKEN BY YOU WILL BE APPROVED ONLY UPON PRESENTATION
OF A BONA FIDE
PHYSICIAN'S STATEMENT. THIS STATEMENT MUST BE PRESENTED IMMEDIATELY
UPON YOUR RETURN TO DUTY.
"ANY FAILURE TO PRESENT A PHYSICIAN'S STATEMENT MAY RESULT IN YOUR
BEING CHARGED WITH
'ABSENT WITHOUT LEAVE.'" (G.C. EXH. 22).
MS. JAURIGUE HAD SUBMITTED WITH HER SICK LEAVE REQUEST (RES. EXH.
12) A COPY OF DR. PUCELIK'S STATEMENT (RES. EXH. 9) WHICH SHOWED
HOSPITALIZATION IN LAS CRUCES, NEW MEXICO FROM DECEMBER 3, 1978, TO
DECEMBER 13, 1978, AND OUTPATIENT TREATMENT THROUGH JANUARY 4, 1979.
MS. JAURIGUE HAD AN APPOINTMENT WITH DR. PONTARELLI ON JANUARY 9,
1979, AND ON JANUARY 9, DR. PONTARELLI GAVE HER A STATEMENT REQUESTING
THAT SHE BE EXCUSED FROM WORK UNTIL JANUARY 15, 1979 FOR POST OPERATIVE
CARE (RES. EXH. 15). OTHER APPLICATIONS FOR SICK LEAVE FOLLOWED (RES.
EXH. 14, 1/9-12:30 TO 1/12/79; RES. EXH. 16, 1/16-1/17/79; RES. EXH.
18, 1/19/79) AND A FURTHER PHYSICIAN'S STATEMENT FROM HAHNEMANN MEDICAL
COLLEGE & HOSPITAL, DATED JANUARY 17, 1979 (RES. EXH. 17).
ON JANUARY 22, 1979, MR. WARD MET WITH MS. JAURIGUE, WHO WAS
ACCOMPANIED BY MR. ARMBRUST, AND PRESENTED HER WITH A LETTER, DATED
JANUARY 22, 1979 (RES. EXH. 7), WHICH, IN SUMMARY, STATED THAT DR.
PUCELIK'S STATEMENT COVERED ONLY PART OF THE PERIOD OF HER APPLICATION
FOR SICK LEAVE AND, PURSUANT TO THE STIPULATION AGREED TO ON NOVEMBER
21, 1978, THAT APPROPRIATE STATEMENTS PRIOR TO AN AFTER THE PERIOD
COVERED BY DR. PUCELIK'S STATEMENT MUST BE FURNISHED BY JANUARY 29,
1979, OR THE LEAVE MAY BE CHARGED TO OTHER THAN SICK LEAVE. MR.
ARMBRUST AND MS. JAURIGUE REQUESTED ADDITIONAL TIME BEYOND JANUARY 29,
WHICH WAS GRANTED; AND MR. WARD ASKED FOR THE ORIGINAL OF DR. PUCELIK'S
STATEMENT AND MS. JAURIGUE AGREED TO SUPPLY THE ORIGINAL. MR. WARD ALSO
EMPHASIZED THAT MS. JAURIGUE MUST COMPLY WITH MR. BENSON'S MEMORANDUM OF
JANUARY 9, 1979, AND THAT SHE MUST PRESENT A PHYSICIAN'S STATEMENT
IMMEDIATELY UPON RETURN TO DUTY.
MR. WARD INQUIRED IF MS. JAURIQUE'S FURTHER USE OF SICK LEAVE WAS FOR
THE SAME ILLNESS AND MS. JAURIGUE REPLIED THAT THIS WAS CORRECT.
MR. WARD APPROVES SICK LEAVE FOR THE PERIOD 11/22/78 TO 1/8/79 AND
FROM 12:30 PM.M 1/9/79 THROUGH 1/12/79 AND BY LETTER DATED JANUARY 24,
1979 (RES. EXH. 22, ATTACHMENT) REQUESTED "CARRY OVER TO EXCESS ANNUAL
LEAVE" OF 49 HOURS FOR MS. JAURIGUE /15/ WHICH WAS APPROVED FEBRUARY 28,
1979 (RES. EXH. 22).
M. ON APRIL 10, 1979, MR. WARD FILED A CIVIL ACTION IN
STATE COURT AGAINST MS. JAURIGUE
ON APRIL 10, 1979, MR. LACY B. WARD COMMENCED AN ACTION BY SUMMONS IN
TRESPASS IN THE COURT OF COMMON PLEAS, COMMONWEALTH OF PENNSYLVANIA,
CITY AND COUNTY OF PHILADELPHIA, NO. 1487, AGAINST MARIA R. JAURIGUE
G.C. EXH. 15). PLAINTIFF, LACY B. WARD, INSTITUTED THIS ACTION AS AN
INDIVIDUAL, THROUGH HIS PERSONAL ATTORNEY, FOR THE ASSERTED REASON THAT
HE HAD "REASON TO BELIEVE THAT HE HAD BEEN LIBELED BY THE DEFENDANT."
(G.C. EXH. 16, P. 3). THE PROCEDURE OF INITIATION OF A SUIT BY SUMMONS
IN ORDER TO PREPARE A COMPLAINT, WHILE NOT FAMILIAR TO ME, APPEARS TO BE
FULLY IN ACCORDANCE WITH PENNSYLVANIA RULES OF CIVIL PROCEDURE (SEE,
G.C. EXH. 16, P. 3).
ON APRIL 11, 1979, MR. RAYMOND L. LABONSKI WAS SERVED WITH A SUBPOENA
DECES TECUM FOR THE PURPOSE OF A DEPOSITION ON MAY 3, 1979. THE
SUBPOENA WAS SERVED ON MR. LABONSKI AT WORK.
N. MS. JAURIQUE'S TESTIMONY WITH REGARD TO MR. WARD'S
STATEMENTS CONCERNING MR. LABONSKI
MS. JAURIGUE TESTIFIED THAT IN THE EARLY PART OF JULY MR. WARD CALLED
HER INTO HIS OFFICE AND ASKED HER TO SIT DOWN AND HE STOOD UP AND BEGAN
TO READ FROM A DOCUMENT WHICH WAS THE UNFAIR LABOR PRACTICE CHARGE FILED
BY MR. LABONSKI REGARDING THE NO SMOKING SIGN IN THE CONFERENCE ROOM;
THAT MR. WARD READ THE WHOLE DOCUMENT OUT LOUD AND THEN COMMENTED AS
FOLLOWS:
"MR. WARD SAID THAT SINCE RAY HAD NOTHING ELSE BETTER TO DO THAN THIS
HE WAS GOING TO
DETAIL HIM TO THE PITTSBURGH RESIDENT POST FOR A MONTH.
"Q. DID MR. WARD AT THAT TIME SAY HOW HE WAS GOING TO DO THAT?
"A. HE SAID THAT HE DIDN'T HAVE TO DO IT HIMSELF. HE WOULD GET A
SUPERVISOR TO DO IT FOR
HIM.
. . . .
"Q. HAD MR. WARD, OR ANY OTHER SUPERVISOR EVER MENTIONED MR.
LABONSKI TO YOU BEFORE WITH
RESPECT TO HIS ACTIVITIES?
"A. YES, HE HAD SEVERAL TIMES BEFORE.
"Q. WHO HAD?
"A. MR. WARD.
"Q. DO YOU RECALL ANY OF THOSE SPECIFIC CONVERSATIONS?
"A. I REMEMBER A CONVERSATION IN APRIL. MR. WARD AND I WERE DRIVING
TO HARRISBURG ON
BUSINESS AND MR. WARD STARTED TELLING ME THAT RAY WAS USUALLY ALWAYS
HARASSING HIM, AND THAT
RAY WAS DISRUPTIVE AND A TROUBLEMAKER.
"THEN MR. WARD TOLD ME THAT ON ST. PATRICK'S DAY, MR. WARD WAS IN
COURT AND RAY LABONSKI
WAS REPRESENTING A SECRETARY THAT MR. WARD HAD TERMINATED.
"AND MR. WARD SAID, 'AND I WAS IN COURT ON ST. PATRICK'S DAY ALONG
WITH ALL THE OTHER
PATTIES AND RAY WAS REALLY SHOWING OFF.'
. . . .
"Q. YOU SAID THERE WAS ANOTHER CONVERSATION IN JULY OF 1978 WITH MR.
WARD CONCERNING RAY
LABONSKI. COULD YOU TELL THE COURT WHEN THAT WAS?
"A. IT WAS ON JULY 25TH. MR. WARD AND I WERE ON THE TRAIN ON OUR
WAY TO BALTIMORE,
MARYLAND TO DISCUSS A GOVERNOR'S CONFERENCE WITH THE STATE PEOPLE.
"Q. WHAT TOOK PLACE IN THAT CONVERSATION?
"A. WELL, WE TALKED ABOUT SEVERAL THINGS. MR. WARD ASKED ME IF I
REMEMBERED THE CASE THAT
MR. LABONSKI HAD REPRESENTED A SECRETARY IN A COURT HEARING AND HE
TOLD ME THAT RAY LABONSKI
WAS REALLY SHOWING OFF AND ACTING LIKE A MISTER BIG GUY.
"APPARENTLY HE ENJOYED DOING THIS SORT OF THING AS A MEANS TO HARASS
HIM. MR. WARD THEN
LATER ON WENT ON TO SAY THAT HE WAS PRETTY UPSET WITH SOME OF THE
PEOPLE IN THE OFFICE.
"BECAUSE THERE HAD BEEN A SWITCH IN DETAILING RAY TO THE PITTSBURGH
RESIDENT POST FOR A
MONTH AND THAT HE MADE IT CLEAR TO THE SUPERVISORS THAT RAY WAS TO GO
FOR A MONTH TO
PITTSBURGH.
"Q. NOW, WHAT, IF ANYTHING, DID YOU SAY?
"A. AT THAT TIME I ASKED MR. WARD IF THIS WAS GOING TO BE A PROBLEM
FOR RAY, SINCE RAY'S
WIFE WAS PREGNANT AND READY TO DELIVER AT ANY TIME.
"MR. WARD SAID THAT THEY SENT HIM TO KOREA WHEN HIS WIFE WAS
PREGNANT, SO WHY COULDN'T HE
SEND RAY TO PITTSBURGH? (TR. 443-445)(SEE, ALSO TR. 517, 522, 523)
I DID NOT FIND MR. WARD TO BE A WHOLLY RELIABLE WITNESS, INDEED, HIS
CREDIBILITY WAS COMPROMISED IN CERTAIN RESPECTS, FOR EXAMPLE, HIS
COMMENTS IN HIS LETTER OF NOVEMBER 20, 1978, TO MS. JAURIGUE AND IN HIS
LETTER OF JANUARY 24, 1970 (RES. EXH. 22 ATTACHMENT); AND HIS TESTIMONY
THAT, PRIOR TO HIS CONVERSATION WITH MR. KRIVDA ON JULY 12, 1978, HE DID
NOT KNOW THAT MR. ARMBRUST WOULD BE UNAVAILABLE FOR DETAIL TO PITTSBURGH
DURING THIS PERIOD, WAS WHOLLY DISCREDITED BY THE CREDIBLE AND
UNCONTRADICTED TESTIMONY OF MR. ROBINSON THAT ON JULY 11, MR. WARD HAD
REQUESTED, AND HE HAD SUPPLIED MR. ARMBRUST'S ITINERARY, /16/ AND MR.
ROBINSON'S TESTIMONY WAS CORROBORATED BY THE TESTIMONY OF MR. ARMBRUST.
MR. WARD'S TESTIMONY THAT HE DID NOT KNOW UNTIL JULY 31, 1978, THAT MR.
LABONSKI HAD BEEN DETAILED TO PITTSBURGH FOR ONLY TWO WEEKS IS
INHERENTLY UNBELIEVABLE. FIRST, MR. WARD ADMITTED THAT MR. LABONSKI
TOLD HIM THAT HE HAD A PROBLEM WITH THE ASSIGNMENT AND THAT HE, WARD,
TOLD MR. LABONSKI TO DISCUSS ANY PROBLEM WITH HIS SUPERVISOR. MR. WARD
ADMITTED THAT HE TOLD MR. KRIVDA THAT HE WANTED A GS-11 IN PITTSBURGH,
NOT MR. LABONSKI, AND THAT KRIVDA SHOULD TAKE CARE OF THE ASSIGNMENT.
SECOND, MR. KRIVDA DISCUSSED THE TWO WEEK DETAIL WITH MR. ROBINSON AND
MR. LABONSKI DISCUSSED IT WITH MR. ARMBRUST ON JULY 12. THIRD, ON JULY
24, MR. ARMBRUST DISCUSSED HIS GOING TO PITTSBURGH WITH MR. ROBINSON AND
WITH MR. BENSON. TO SAY THE LEAST, IT WOULD STRAIN CREDULITY TO BELIEVE
THAT MR. WARD DID NOT KNOW OF THE TWO WEEK DETAIL. I DO NOT CREDIT MR.
WARD'S TESTIMONY THAT HE DID NOT KNOW OF MR. LABONSKI'S TWO WEEK DETAIL
UNTIL JULY 31 AND I DO NOT CREDIT MR. WARD'S TESTIMONY IN WHICH HE
DENIED THAT HE DISCUSSED MR. LABONSKI WITH MS. JAURIGUE DURING THEIR
AUTOMOBILE TRIP TO HARRISBURG OR THEIR TRIP BY RAIL TO BALTIMORE ON JULY
25 AND, INSTEAD, FULLY CREDIT THE TESTIMONY OF MS. JAURIGUE WHO I FOUND
TO BE A WHOLLY CREDIBLE WITNESS. /17/
O. MS. JAURIGUE TRANSFERRED TO DALLAS
IN OCTOBER, 1978, MS. JAURIGUE MADE INQUIRIES ABOUT A TRANSFER TO
ANOTHER OFFICE OF RESPONDENT AND RECEIVED AN INQUIRY ABOUT HER INTEREST
IN KANSAS CITY WHICH SHE DECLINED BECAUSE OF HER HEALTH. ON JANUARY 8,
1979, SHE ASKED MR. WARD FOR TIME OFF FOR A JOB INTERVIEW ON JANUARY 9
WHICH HE DID NOT GRANT. ON JANUARY 9, 1979, SHE HAD A JOB INTERVIEW
WITH COMMUNITY SERVICES ADMINISTRATION AFTER HER DOCTOR'S APPOINTMENT;
AND ON JANUARY 9, 1979, SHE ALSO PICKED UP FORMS FROM THE WORLD HEALTH
ORGANIZATION WHILE IN WASHINGTON, AND IN APRIL, 1978, SHE TRANSFERRED TO
THE DALLAS OFFICE OF RESPONDENT.
CONCLUSIONS
1. CASE NO. 3-CA-12
THE FACTS, FULLY SET FORTH HEREINABOVE, SHOW BY AN OVERWHELMING
PREPONDERANCE OF THE EVIDENCE THAT THE MOTIVATION, PURPOSE AND INTENT OF
THE DIRECTOR OF THE PHILADELPHIA AREA OFFICE, MR. LACY WARD, IN
DETAILING RAYMOND LABONSKI TO THE PITTSBURGH RESIDENT POST WAS TO PUNISH
HIM FOR HIS ACTIVITIES AS PRESIDENT OF THE UNION. RESPONDENT THEREBY
VIOLATED SECTIONS 19(A)(1), (2) AND (4) OF THE EXECUTIVE ORDER.
MR. LABONSKI, A GS-11 INVESTIGATOR, WAS AN ACTIVE AND VOCAL UNION
PRESIDENT WHO USED THE PROCESSES OF THE ORDER TO CHALLENGE ACTIONS OF
THE AREA OFFICE WHICH MR. LABONSKI FELT WERE EITHER UNFAIR OR WHICH
VIOLATED UNION OR EMPLOYEE RIGHTS. IN APRIL, 1978, MR. WARD HAD
COMMENTED TO MS. JAURIGUE DURING AN AUTOMOBILE TRIP TO HARRISBURG THAT
MR. LABONSKI WAS ALWAYS HARASSING HIM; THAT MR. LABONSKI WAS DISRUPTIVE
AND A TROUBLEMAKER; AND THAT HE HAD BEEN IN COURT ON ST. PATRICK'S DAY
WHEN MR. LABONSKI WAS REPRESENTING A SECRETARY THAT HE, WARD, HAD
TERMINATED AND MR. LABONSKI WAS SHOWING OFF. A SUPERVISOR HAD TERMED
THE COURT ACTION, WHICH HAD BEEN BROUGHT BY MR. LABONSKI ON BEHALF OF
THE EMPLOYEE, A "BLOOD-LETTING" AND WARNED MR. LABONSKI TO WATCH HIS
STEP.
ON JUNE 30, 1978, MR. LABONSKI FILED AN UNFAIR LABOR PRACTICE
COMPLAINT WHICH CONCERNED AN ASSERTED UNILATERAL ISSUANCE OF A NO
SMOKING POLICY. IN EARLY JULY, MR. WARD CALLED MS. JAURIGUE TO HIS
OFFICE AND READ THE UNFAIR LABOR PRACTICE COMPLAINT ALOUD AND THEN
STATED THAT SINCE RAY (MR. LABONSKI) HAD NOTHING BETTER TO DO HE WAS
GOING TO DETAIL HIM TO THE PITTSBURGH RESIDENT POST, WHICH WAS TO BECOME
VACANT JULY 17, FOR A MONTH. MR. WARD FURTHER TOLD MS. JAURIGUE THAT HE
DIDN'T HAVE TO DO IT HIMSELF, HE WOULD GET A SUPERVISOR TO DO IT FOR
HIM.
THE DIRECTOR OF OPERATIONS, RAYMOND BENSON, WAS ON LEAVE THE FIRST
THREE WEEKS OF JULY, 1978, AND MR. FRANK KRIVDA, THE SENIOR TEAM
SUPERVISOR, WAS ACTING DIRECTOR OF OPERATIONS, WITH MR. LABONSKI,
NORMALLY A MEMBER OF ROBINSON'S STAFF (MR. ROBINSON WAS THE OTHER TEAM
SUPERVISOR), WAS ACTING SUPERVISOR OF KRIVDA'S TEAM. ON JULY 3, 1978,
THE WORK PLAN HAD BEEN ISSUED WHICH SHOWED THAT BEN FINK, A GS-9
INVESTIGATOR, AND JOYCE ALLEN, A GS-7 INVESTIGATOR, WOULD COVER THE
PITTSBURGH RESIDENT POST FROM JULY 17, 1978, THROUGH JULY 28, 1978. THE
RECORD SHOWS WITHOUT CONTRADICTION THAT MOST DETAILS HAD BEEN FOR A WEEK
AND THAT THE MAXIMUM DURATION HAD BEEN TWO WEEKS. FROM ITS INCEPTION,
THE PITTSBURGH RESIDENT POST HAD BEEN FILLED BY A GS-9 INVESTIGATOR,
ALTHOUGH, ON PAPER, IT COULD HAVE BEEN FILED WITH A GS-12. BOTH PRIOR
TO CREATION OF THE PITTSBURGH RESIDENT POST AND THEREAFTER, ALL GRADES
OF INVESTIGATORS, GS-5 THROUGH GS-11, HAD BEEN DETAILED TO PITTSBURGH.
MR. FINK, AN EXPERIENCED GS-9 INVESTIGATOR, WANTED TO GO TO PITTSBURGH
AND HAD HAD PREVIOUS EXPERIENCE IN PITTSBURGH, HIS MOST RECENT
ASSIGNMENT THERE HAVING BEEN IN JUNE, 1978. THE RECORD SHOWED THAT A
LARGE CASE BACKLOG HAD EXISTED IN PITTSBURGH (SEE, RES. EXHS. 23, 24);
HOWEVER, AS THE RESULT OF THE REASSIGNMENT OF CASES AND THE ASSIGNMENT
OF ADDITIONAL PERSONNEL (SEE, MR. BENSON'S MEMORANDUM TO MR. WARD DATED
JUNE 12, 1978 (ATTACHMENT TO RES. EXH. 23)) MR. ROBINSON, WHO SUPERVISED
THE PITTSBURGH RESIDENT POST, TESTIFIED THAT, IN HIS OPINION, AS OF
JULY, 1978, THERE WERE NOT SUFFICIENT CASES AT THE PITTSBURGH RESIDENT
OFFICE TO REQUIRE THE PRESENCE OF A GS-11 SENIOR INVESTIGATOR AND THAT,
IN HIS OPINION, MR. FINK COULD HAVE PERFORMED THE DUTIES OF RESIDENT
OFFICER IN PITTSBURGH.
ON JULY 11, 1978, IN A MEETING WITH ROBINSON, JAURIGUE AND WEBB, MR.
WARD MENTIONED, TO GET THE MOST OUT OF THE COST, SENDING SOMEONE TO
PITTSBURGH "FOR A LONGER PERIOD OF TIME," SOMETHING OF THIS SORT " . . .
THAT WAS NOT A REQUEST. IT WAS JUST A SUBJECT THAT CAME UP. IT WAS,
SHALL WE SAY, THROWN OUT AT THE MEETING." (TR. 387). ALSO ON JULY 11,
1978, MR. WARD ASKED MR. ROBINSON FOR THE ITINERARIES FOR MR. ARMBRUST,
THE OTHER GS-11, AND FOR JANE HANLON. MR. ROBINSON STATED THAT THIS WAS
THE FIRST TIME MR. WARD HAD EVER REQUESTED AN INDIVIDUAL EMPLOYEE'S
ITINERARY. THE ITINERARIES SHOWED THAT MR. ARMBRUST WOULD NOT BE
AVAILABLE IF A GS-11 WERE TO BE DETAILED TO PITTSBURGH ON JULY 17 SINCE
ONLY ARMBRUST AND HANLON DID NEISS REDESIGN TRAINING AND BOTH HAD
SCHEDULED NEISS ASSIGNMENTS FOR THIS PERIOD. ON THE MORNING OF JULY 12,
MR. WARD ASKED MR. KRIVDA WHAT MR. LABONSKI WAS DOING AND MR. KRIVDA
TOLD HIM HE WAS AN ACTING SUPERVISOR. LATER THAT MORNING, MR. WARD
CALLED MR. KRIVDA TO HIS OFFICE AND ASKED MR. KRIVDA WHAT HIS PLANS WERE
FOR COVERING THE PITTSBURGH POST. UPON BEING TOLD BY MR. KRIVDA THAT HE
INTENDED TO SEND MR. FINK AND MS. ALLEN FOR A WEEK EACH, MR. WARD
INSTRUCTED MR. KRIVDA T SEND A GS-11 FOR A MONTH. MR. KRIVDA TOLD MR.
WARD THAT MR. ARMBRUST WAS NOT AVAILABLE AND THAT MR. LABONSKI WAS THE
ONLY OTHER GS-11 AND HE WAS AN ACTING SUPERVISOR. MR. WARD INSISTED
THAT MR. KRIVDA ASSIGN A GS-11.
MR. WARD KNEW THAT MR. LABONSKI'S WIFE WAS PREGNANT AND WAS AWARE
THAT THIS WAS NOT A ROUTINE PREGNANCY. IN MAY, MR. LABONSKI HAD SPOKEN
TO MR. BENSON ABOUT HIS WIFE'S PREGNANCY AND HAD REQUESTED THAT HE
DOUBLE UP ON TRAVEL SO THAT HE COULD AVOID OUT-OF-TOWN TRAVEL IN AUGUST
AND MR. BENSON HAD TOLD HIM NOT TO WORRY, THAT HE WOULDN'T BE TRAVELING
THEN. ALTHOUGH IT WAS NOT SHOWN THAT MR. BENSON DISCUSSED THIS MATTER
WITH MR. WARD, MR. WARD'S KNOWLEDGE MIGHT REASONABLY BE INFERRED;
HOWEVER, SINCE MR. LABONSKI TOLD MR. WARD ON JULY 12 THAT HE WAS HAVING
A GREAT DEAL OF DIFFICULTY WITH THE ASSIGNMENT TO PITTSBURGH FOR A MONTH
BECAUSE HIS WIFE WAS EIGHT MONTHS PREGNANT AND MR. WARD MADE THE COMMENT
TO MS. JAURIGUE THAT THEY HAD SENT HIM TO KOREA WHEN HIS WIFE WAS
PREGNANT SO WHY COULDN'T HE SEND RAY (LABONSKI) TO PITTSBURGH, THE
DIRECT TESTIMONY OF MR. LABONSKI AND MS. JAURIGUE, WHICH I CREDIT, SHOWS
THAT MR. WARD ACTED WITH FULL KNOWLEDGE THAT THE DETAIL OF MR. LABONSKI
TO PITTSBURGH WAS A PERSONAL HARDSHIP TO MR. LABONSKI.
WHEN MR. KRIVDA TOLD MR. LABONSKI HE WAS BEING DETAILED TO PITTSBURGH
FOR A MONTH, MR. LABONSKI TOLD MR. KRIVDA THAT HE (LABONSKI) COULDN'T DO
IT AND TOLD MR. KRIVDA THAT HE WOULD CALL MR. WARD AND PERSONALLY
EXPRESS HIS DIFFICULTY WITH THE ASSIGNMENT AND MR. KRIVDA SAID "GO
AHEAD. GIVE IT A TRY", WHEREUPON MR. LABONSKI CALLED MR. WARD AND MR.
WARD TESTIFIED THAT HE TOLD MR. LABONSKI "TO DISCUSS ANY PROBLEMS THAT
HE MIGHT HAVE WITH" MR. KRIVDA AND THAT HE TOLD MR. KRIVDA TO "TAKE CARE
OF THE ASSIGNMENT"; AND WHEN MR. KRIVDA SAID "SO DO YOU MEAN THAT YOU
WANT A GS-11 IN PITTSBURGH" HE, WARD, HAD RESPONDED "I THOUGHT THAT WAS
WHAT MY INSTRUCTIONS WERE AT FIRST." MR. LABONSKI AGAIN DISCUSSED THE
HARDSHIP OF HIS GOING TO PITTSBURGH, BECAUSE OF HIS WIFE'S PREGNANCY,
WITH MR. KRIVDA AND SUGGESTED THAT PERHAPS MR. ARMBRUST COULD GO; BUT
MR. KRIVDA REPLIED THAT THE EARLIEST MR. ARMBRUST COULD GO WOULD BE IN
TWO WEEKS. AS IT APPEARED TO MR. KRIVDA FROM MR. WARD'S COMMENTS THAT
MR. WARD WAS INTERESTED ONLY IN HAVING A GS-11 IN PITTSBURGH, HE AGREED
TO SEND MR. LABONSKI FOR TWO WEEKS TO BE FOLLOWED BY MR. ARMBRUST. MR.
LABONSKI TALKED TO MR. ARMBRUST ON JULY 12 AND MR. ARMBRUST TOLD MR.
LABONSKI HE WOULD BE HAPPY TO GO TO PITTSBURGH AFTER LABONSKI'S TWO WEEK
DETAIL FOR WHATEVER LENGTH OF TIME WAS NECESSARY UNTIL MRS. LABONSKI
WAS OUT OF DANGER AND THE BABY HAD BEEN BORN. ON JULY 24, MR. ARMBRUST
CONFIRMED HIS GOING TO PITTSBURGH FOR A MONTH AND A HALF WITH MR.
ROBINSON, HIS IMMEDIATE SUPERVISOR, AND WITH MR. BENSON.
ON JULY 25, 1978, MR. WARD AGAIN MENTIONED TO MS. JAURIGUE HIS
DISPLEASURE WITH MR. LABONSKI'S UNION ACTIVITIES WHICH HE DESCRIBED AS A
MEANS TO HARASS HIM (WARD) AND WENT ON TO SAY HE WAS UPSET WITH SOME OF
THE PEOPLE IN THE OFFICE BECAUSE THERE HAD BEEN A SWITCH IN DETAILING
LABONSKI TO PITTSBURGH FOR A MONTH AND THAT HE "MADE IT CLEAR TO THE
SUPERVISORS THAT RAY WAS TO GO FOR A MONTH TO PITTSBURGH." HOWEVER,
PRETENDING IGNORANCE OF THE "SWITCH IN DETAILING", MR. WARD DID NOTHING
UNTIL JULY 31 WHEN MR. LABONSKI WAS BACK IN THE OFFICE. WITH FULL
KNOWLEDGE THAT MR. ARMBRUST WAS READY TO GO TO PITTSBURGH, MR. WARD
ORDERED MR. KRIVDA TO STOP MR. ARMBRUST FROM GOING TO PITTSBURGH AND
MR. WARD ORDERED MR. BENSON TO ORDER MR. ROBINSON TO SEND MR. LABONSKI
BACK TO PITTSBURGH FOR ANOTHER TWO WEEKS. MR. BENSON TOLD MR. ROBINSON
THAT IF MR. LABONSKI REFUSED TO GO HE, ROBINSON, WAS TO CHARGE LABONSKI
WITH INSUBORDINATION. IN A MOST REVEALING COMMENT, MR. ROBINSON
TESTIFIED THAT WHEN HE ASKED MR. BENSON IF THIS DIRECTION WAS FROM HIM,
BENSON, OR FROM MR. WARD, MR. BENSON SAID "IT COMES FROM MR. WARD BUT .
. . IF YOU ASK ME IF HE SAID THAT, I'LL SAY NO . . . "
THE RECORD SHOWS THAT MR. WARD WAS BESET WITH TWO OBSESSIONS: FIRST,
TO PUNISH MR. LABONSKI FOR HIS UNION ACTIVITY, WHICH MR. WARD CONSIDERED
PERSONAL HARASSMENT, AND PERHAPS, ALSO JUST TO GET MR. LABONSKI "OUT OF
HIS HAIR" FOR A MONTH. SECOND, TO MAKE IT APPEAR THAT HE, WARD, WAS
BLAMELESS (SEE, ALSO, RES. EXH. 6). ON JULY 11, HE SUGGESTED SENDING
SOMEONE TO PITTSBURGH "FOR A LONGER PERIOD OF TIME" AND OBTAINED THE
ITINERARY FOR MR. ARMBRUST, ONE OF THE TWO GS-11'S IN THE OFFICE, MR.
LABONSKI BEING THE OTHER. ON JULY 12, HE TOLD MR. KRIVDA TO SEND A
GS-11 TO PITTSBURGH FOR A MONTH; WHEN MR. LABONSKI TOLD MR. WARD HE HAD
A PROBLEM WITH THE ASSIGNMENT BECAUSE OF HIS WIFE'S PREGNANCY, MR. WARD
TOLD HIM TO DISCUSS ANY PROBLEM HE HAS WITH THE ASSIGNMENT WITH MR.
KRIVDA AND HE TOLD MR. KRIVDA THAT HE WANTED A GS-11 IN PITTSBURGH BUT
CAREFULLY REFRAINED FROM ANY STATEMENT TO MR. KRIVDA THAT MR. LABONSKI
WAS TO BE DETAILED TO PITTSBURGH FOR A MONTH. MR. KRIVDA, NOT BEING
PRIVY TO MR. WARD'S TRUE PURPOSE, NAMELY TO SUBJECT MR. LABONSKI TO A
DETAIL OUT OF TOWN FOR A MONTH, WHICH MR. WARD KNEW WAS A PERSONAL
HARDSHIP TO MR. LABONSKI, IN RETALIATION FOR MR. LABONSKI'S UNION
ACTIVITIES, REASONABLY BELIEVED FROM MR. WARD'S COMMENTS THAT MR. WARD
SIMPLY WANTED A GS-11 IN PITTSBURGH WHICH, IN VIEW OF MR. LABONSKI'S
PERSONAL PROBLEM, HE ACHIEVED BY THE DETAIL OF MR. LABONSKI FOR TWO
WEEKS, TO BE FOLLOWED THEREAFTER BY MR. ARMBRUST.
THE RECORD STRONGLY SUGGESTS THAT MR. WARD'S DECISION TO SEND ANY
GS-11 INVESTIGATOR TO PITTSBURGH WAS OF DOUBTFUL WISDOM, AND, IN
REALITY, WAS SIMPLY A RUSE TO REACH MR. LABONSKI /18/ ; BUT UNDER
SECTION 11(B) OF THE ORDER, AGENCY MANAGEMENT HAS THE RIGHT TO DETERMINE
" . . . GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN ORGANIZATIONAL
UNIT, WORK PROJECT OR TOUR OF DUTY . . . ", ENCOMPASSING THE WISE AS
WELL AS THE ILL CONCEIVED, (BUT SEE, SOUTHEAST EXCHANGE REGION OF THE
ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD WAREHOUSE, COLUMBIA, SOUTH
CAROLINA, A/SLMR NO. 656, 6 A/SLMR 237(1976)). WHILE RESPONDENT COULD
PROPERLY DECIDE THAT THE PITTSBURGH RESIDENT POST SHOULD BE MANNED BY A
SENIOR, GS-11, INVESTIGATOR, EXERCISE OF OTHERWISE LEGITIMATE AUTHORITY
TO "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE OF
THE RIGHTS ASSURED BY THE ORDER" (SECTION 19(A)(1)), BY "DISCRIMINATION
IN REGARD TO . . . CONDITIONS OF EMPLOYMENT" TO ENCOURAGE, OR
DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION (SECTION 19(A)(2)), OR TO
"DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE HE HAS
FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THE ORDER" (SECTION
19(A)(4)), IS AN UNFAIR LABOR PRACTICE. I FIND THAT MR. WARD'S ORDER TO
ASSIGN A GS-11 INVESTIGATOR TO PITTSBURGH ON JULY 17, 1978,WITH
KNOWLEDGE THAT MR. LABONSKI WAS THE ONLY GS-11 INVESTIGATOR THEN
AVAILABLE, AND WITH INTENT AND DESIGN TO PUNISH MR. LABONSKI FOR HIS
UNION ACTIVITY, INCLUDING THE FILING OF AN UNFAIR LABOR PRACTICE
COMPLAINT UNDER THE ORDER, VIOLATED SECTIONS 19(A)(1), (2) AND (4) OF
THE ORDER.
I AM AWARE THAT IT COULD BE ARGUED THAT: A) RESPONDENT HAD THE RIGHT
TO DECIDE THAT A GS-11 INVESTIGATOR BE ASSIGNED TO THE PITTSBURGH
RESIDENT POST; B) MR. WARD DID NOT SPECIFY THAT ANY PARTICULAR GS-11
INVESTIGATOR BE DETAILED TO PITTSBURGH; AND C) SINCE MR. LABONSKI WAS
THE ONLY GS-11 INVESTIGATOR THEN AVAILABLE, HIS SELECTION, WHATEVER MR.
WARD'S INTENT, WAS NOT FOR AN IMPROPER PURPOSE. INDEED, IT COULD BE
FURTHER ARGUED THAT BECAUSE OF MR. KRIVDA, IN RECOGNITION OF MR.
LABONSKI'S PERSONAL PROBLEM, DETAILED HIM TO PITTSBURGH, WITH HIS
ASSENT, FOR TWO WEEKS, THERE WAS NO VIOLATION OF THE ORDER IN THE
INITIAL SELECTION OF MR. LABONSKI FOR DETAIL TO PITTSBURGH OR IN HIS
DETAIL TO PITTSBURGH FOR TWO WEEKS. BECAUSE OF MR. WARD'S UNLAWFUL
PURPOSE AND INTENT, I WOULD FIND ANY DETAIL OF MR. LABONSKI FOR SUCH
UNLAWFUL PURPOSE VIOLATED SECTIONS 19(A)(1), (2) AND (4) OF THE ORDER.
BUT EVEN IF THE INITIAL SELECTION AND DETAIL OF MR. LABONSKI HAD BEEN
PROPER, MR. WARD'S ACTION ON JULY 31, 1978, IN ORDERING MR. LABONSKI
BACK TO PITTSBURGH FOR ANOTHER TWO WEEKS WAS THE NAKED AND VINDICTIVE
PRODUCT OF HIS OBSESSIVE DESIRE TO PUNISH MR. LABONSKI FOR HIS UNION
ACTIVITY. MR. LABONSKI HAD FULLY PERFORMED HIS TWO WEEK DETAIL; MR.
ARMBRUST WAS PACKED, READY, AVAILABLE AND ENTIRELY WILLING TO GO TO
PITTSBURGH; MR. BENSON, DIRECTOR OF OPERATIONS, WITH FULL KNOWLEDGE
THAT MR. ARMBRUST WAS BEING DETAILED TO PITTSBURGH FOR SIX WEEKS,
BEGINNING JULY 31, HAD GIVEN HIS TACIT APPROVAL ON JULY 24; AND IF MR.
WARD BELIEVED MR. KRIVDA HAD SOMEHOW NOT FOLLOWED HIS INSTRUCTIONS, HIS
DISAGREEMENT PROPERLY WAS WITH MR. KRIVDA, ALONE, NOT WITH MR.
LABONSKI. NOT ONLY DO THESE FACTS CLEARLY AND UNMISTAKENLY DISCLOSE MR.
WARD'S UNLAWFUL PURPOSE BUT MR. WARD'S STATEMENTS TO MS. JAURIGUE SHOW
THAT MR. WARD CARRIED OUT PRECISELY HIS EXPRESSED INTENTION TO DETAIL
MR. LABONSKI TO PITTSBURGH FOR A MONTH AS PUNISHMENT FOR MR. LABONSKI'S
UNION ACTIVITIES.
DISCRIMINATORY ACTION TAKEN AGAINST AN EMPLOYEE BECAUSE OF CONDUCT
PROTECTED BY SECTION 1(A) OF THE ORDER CONSTITUTES A VIOLATION 19(A)(1)
INTERNAL REVENUE SERVICE AND INTERNAL REVENUE SERVICE, SOUTH CAROLINA
DISTRICT OFFICE, A/SLMR NO. 1081, 8 A/SLMR 778(1978); UNITED STATES
DEPARTMENT OF THE ARMY, FORT POLK, LOUISIANA, A/SLMR NO. 1100, 8 A/SLMR
880(1978); U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE
AREA OFFICE, MILWAUKEE, WISCONSIN, A/SLMR NO. 925, 7 A/SLMR 948(1977);
ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, A/SLMR NO.
136, 2 A/SLMR 87(1972). SUCH DISCRIMINATORY ACTION ALSO VIOLATES
SECTION 19 (A)(2), WHETHER OR NOT ACTUAL DISCOURAGEMENT OF MEMBERSHIP IS
SHOWN, WHERE THE DISCRIMINATORY ACTION, HERE THE DETAIL OUT-OF-TOWN OF
THE PRESIDENT OF THE UNION WHEN IT WAS KNOWN THAT SUCH DETAIL IMPOSED A
PERSONAL HARDSHIP ON THE EMPLOYEE, WAS SUCH DISCRIMINATORY ACTION AS
WOULD TEND TO DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION.
ENVIRONMENTAL PROTECTION AGENCY, PERRINE PRIMATE LABORATORY, SUPRA;
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE,
SUPRA; DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, REGION II, SAN JUAN,
PUERTO RICO, A/SLMR NO. 1127, 8 A/SLMR 1092 (1978), SUPPLEMENTAL
DECISION, A/SLMR NO. 1154, 8 A/SLMR 1266(1978). FINALLY, THE
DISCRIMINATORY ACTION VIOLATED SECTION 19(A)(4) SINCE THE MOTIVATION, IN
PART, WAS TO PUNISH MR. LABONSKI BECAUSE HE HAD FILED UNFAIR LABOR
PRACTICE COMPLAINTS UNDER THE ORDER. NATIONAL LABOR RELATIONS BOARD,
REGION 17, AND NATIONAL LABOR RELATIONS BOARD, A/SLMR NO. 671, 6 A/SLMR
333(1976); AIRWAY FACILITIES FIELD OFFICE, FEDERAL AVIATION
ADMINISTRATION, ST. PETERSBURG, FLORIDA, A/SLMR NO. 776, 6 A/SLMR
736(1976).
2. CASE NO. 3-CA-34
THE FACTS, FULLY SET FORTH HEREINABOVE, SHOW WITHOUT CONTRADICTION
THAT ON AUGUST 30, 1978, MS. JAURIGUE REQUESTED ANNUAL LEAVE FROM
DECEMBER 21, 1978, TO JANUARY 15, 1979, WHICH WAS APPROVED, IN WRITING,
BY MR. WARD ON SEPTEMBER 6, 1978. MS. JAURIGUE, WHO HAD BEEN IN POOR
HEALTH FOR SOME TIME, ON NOVEMBER 14, 1978, WAS INSTRUCTED BY HER
PHYSICIAN IN PHILADELPHIA TO UNDERGO AN EXTENSIVE MEDICAL SURVEY FOR
PERSISTENT AND RECURRING ABDOMINAL PAIN. ON NOVEMBER 15, 1978, MS.
JAURIGUE MET WITH MR. WARD, MS. WEBB AND MS. STEWART AND TOLD THEM SHE
WAS SICK AND WOULD BE REQUESTING FURTHER ANNUAL AND SICK LEAVE; THAT
SHE WOULD GIVE SPECIFIC DATES WITHIN A DAY OR TWO; THAT SHE NEEDED TIME
TO MAKE ARRANGEMENTS BEFORE LEAVING FOR NEW MEXICO; AND THAT MR. WARD
SAID "OKAY, GO AHEAD AND SUBMIT YOUR REQUESTS."
ON NOVEMBER 17, 1978, MS. JAURIGUE SUBMITTED TWO ADDITIONAL LEAVE
REQUESTS TO MS. WEBB, WHO WAS ACTING DIRECTOR IN MR. WARD'S ABSENCE, FOR
ANNUAL LEAVE FROM NOVEMBER 20, 1978 TO NOVEMBER 24, 1978, AND THE OTHER
FOR SICK LEAVE FROM NOVEMBER 27, 1978, TO DECEMBER 8, 1978, BOTH OF
WHICH WERE APPROVED BY MS. WEBB. MS. JAURIGUE SPENT MOST OF NOVEMBER 17
WITH MS. WEBB, REVIEWING THE WORK OF THE DIVISION, AND WITH MS. WHITE,
BRIEFING HER ON WORK OF THE DIVISION. AT NO TIME WAS THERE ANY
INDICATION BY MS. WEBB THAT MS. JAURIQUE'S ABSENCE ON APPROVED LEAVE
FROM NOVEMBER 20, 1978, TO JANUARY 15, 1979, EXCEPT FOR THE PERIOD OF
DECEMBER 11-15 AND 18-20, 1978, POSED ANY PROBLEM WHATEVER.
AT ABOUT 4:00 P.M., WHEN MS. WEBB WAS IN MS. JAURIQUE'S OFFICE, MR.
WARD CALLED MS. WEBB WHO TOOK THE CALL IN HER OFFICE. WHEN SHE RETURNED
AT ABOUT 4:25 P.M., SHE ASKED MS. JAURIGUE TO RETURN THE LEAVE SLIPS
SHE, WEBB, HAD APPROVED AND TOLD HER THE LEAVE WAS NOW DISAPPROVED. MS.
JAURIGUE TOLD MS. WEBB SHE WAS VERY SICK AT THAT TIME AND REALLY NEEDED
TO BE OFF ON SICK LEAVE; BUT MS. WEBB TOLD MS. JAURIGUE THAT IF SHE
DIDN'T SHOW UP FOR WORK ON MONDAY, NOVEMBER 20, SHE WOULD BE PLACED ON
AWOL, OR LEAVE WITHOUT PAY. MS. JAURIGUE THEN FILED A FURTHER
APPLICATION FOR ANNUAL LEAVE FROM NOVEMBER 21, 1978, TO NOVEMBER 24,
1978 (THE EARLIER APPLICATION HAD REQUESTED ANNUAL LEAVE FROM NOVEMBER
20-24, 1978).
AFTER THE MEETING WITH MS. JAURIGUE ON NOVEMBER 15, 1978, MR. WARD
AND MR. BENSON HAD MET WITH MR. LABONSKI AND MR. WARD LEARNED, FOR THE
FIRST TIME, THAT MS. JAURIGUE HAD GIVEN MR. LABONSKI A STATEMENT
CONCERNING MR. WARD'S STATEMENTS TO HER ABOUT MR. LABONSKI.
FROM THE SEQUENCE OF EVENTS SET FORTH ABOVE, I CONCLUDE: A) THAT MR.
WARD ORDERED MS. WEBB TO CANCEL THE LEAVE SHE HAD APPROVED FOR MS.
JAURIGUE; B) THAT MR. WARD ORDERED MS. WEBB TO INSTRUCT MS. JAURIGUE TO
REPORT FOR WORK THE FOLLOWING MONDAY NOVEMBER 20, 1978, ON PAIN OF BEING
CHARGED AWOL AND DENIED PAY; AND C) THAT MR. WARD'S ACTION WAS IN
RETALIATION FOR THE STATEMENT MS. JAURIGUE HAD GIVEN MR. LABONSKI.
ON NOVEMBER 20, 1978, MR. WARD MET WITH MS. JAURIGUE AND TOLD HER THE
ANNUAL LEAVE HE HAD APPROVED ON SEPTEMBER 6, 1978, WAS NOW DISAPPROVED
AND, TO EMPHASIZE HIS STATEMENT, PICKED UP WHAT PURPORTED TO BE THAT
LEAVE SLIP AND TORE IT IN HALF. MR. WARD FURTHER TOLD MS. JAURIGUE,
DESPITE HER PLEA THAT SHE WAS SICK, IN PAIN AND RUNNING A TEMPERATURE,
THAT HE WOULD NOT APPROVE ANY LEAVE FOR HER THAT WEEK. MR. WARD DID SAY
THAT HE WOULD GIVE HER A LETTER LATER IN THE DAY.
MR. WARD'S LETTER OF NOVEMBER 20, 1978, AFFIRMED HIS ORAL DISAPPROVAL
OF ANNUAL LEAVE FOR NOVEMBER 20-24; HOWEVER, HE STATED IN HIS LETTER
THAT HE WOULD GIVE FAVORABLE CONSIDERATION TO A REQUEST FOR LEAVE FOR
FRIDAY, NOVEMBER 24; AND HE STATED THAT HE GAVE TENATIVE APPROVAL FOR
SICK LEAVE FROM NOVEMBER 27 TO DECEMBER 8, 1978, UPON SUBMISSION OF A
PHYSICIAN'S STATEMENT; BUT THAT THE APPLICATION FOR ANNUAL LEAVE FROM
DECEMBER 21, 1978, TO JANUARY 15, 1979, SHOULD NOT BE CONSIDERED
APPROVED. MR. WARD'S STATEMENT CONCERNING "TENATIVE APPROVAL" OF SICK
LEAVE WAS, ITSELF, OF UNKNOWN EFFECT SINCE MS. JAURIGUE HAD ALREADY
SUBMITTED DR. PONTARELLI'S STATEMENT, DATED NOVEMBER 14, 1978, TO MS.
WEBB.
MS. JAURIGUE INFORMED MR. LABONSKI OF MR. WARD'S ACTION AND ON
NOVEMBER 20, 1978, MR. LABONSKI FILED CIVIL ACTION NO. 78-3900 IN THE
UNITED STATES DISTRICT COURT. A HEARING WAS HELD ON NOVEMBER 21, 1978,
AND, FOLLOWING THE HEARING, THE PARTIES ENTERED INTO A STIPULATION,
APPROVED BY JUDGE BECKER, WHICH PROVIDED, IN PART, THAT MS. JAURIGUE
SHOULD GO ON SICK LEAVE AS OF NOVEMBER 22, 1978, AND REMAIN ON SICK
LEAVE UNTIL DECEMBER 6, 1978, SUBJECT TO EXTENSION FOR SUCH TIME AS
NECESSARY AS DETERMINED BY HER MEDICAL CONDITION.
MS. WEBB, MS. STEWART AND MS. WHITE DID NOT TESTIFY AT ALL AND MR.
WARD DID NOT TESTIFY ABOUT MS. JAURIQUE'S LEAVE REQUESTS AND/OR ANY
ACTION TAKEN WITH REGARD THERETO. EXCEPT FOR MR. WARD'S SELF-SERVING
AND WHOLLY UNSUPPORTED STATEMENT TO MS. JAURIGUE ON NOVEMBER 20 ABOUT
WORK LOAD AND HIS OBTUSE REFERENCE TO WORK LOAD IN HIS LETTER OF
NOVEMBER 20, WHICH STATEMENTS I HAVE ACCORDED NO PROBATIVE WEIGHT, FOR
REASONS MORE FULLY SET FORTH HEREINABOVE, BECAUSE SUCH STATEMENTS ARE
CONTRARY TO THE RECORD, THE RECORD IS DEVOID OF PROPER OR LEGITIMATE
JUSTIFICATION FOR MS. WEBB'S ACTION ON NOVEMBER 17, WHICH I HAVE FOUND
WAS AT THE DIRECT ORDER OF MR. WARD, OR FOR MR. WARD'S ACTIONS ON
NOVEMBER 20, 1978. TO THE CONTRARY, MR. WARD, ON NOVEMBER 15, 1978,
WITH FULL KNOWLEDGE OF THE ANNUAL LEAVE HE HAD PERSONALLY APPROVED ON
SEPTEMBER 6, 1978, WHEN ADVISED BY MS. JAURIGUE OF HER HEALTH PROBLEMS
AND THAT SHE WOULD BE REQUESTING FURTHER ANNUAL AND SICK LEAVE, MADE IT
CLEAR THAT HE WOULD FAVORABLY RECEIVE HER ADDITIONAL REQUESTS. THAT
THIS WAS HIS INTENTION WAS SHOWN BY THE FACT THAT MS. WEBB, WHO HAD
ATTENDED THE MEETING ON NOVEMBER 15, AS ACTING DIRECTOR, ON NOVEMBER 17,
1978, APPROVED THE TWO FURTHER LEAVE REQUESTS SUBMITTED BY MS.
JAURIGUE. ON NOVEMBER 15, MR. WARD HAD TOLD MS. JAURIGUE SHE WAS NO
LONGER DIRECTOR OF THE COMMUNITY SERVICES DIVISION (HER SUCCESSOR WAS
NOT IDENTIFIED ON THE RECORD), AND, ALTHOUGH MS. JAURIGUE SPENT MOST OF
NOVEMBER 17 GOING OVER OFFICE MATTERS WITH MS. WEBB AND MS. WHITE, THERE
WAS NO SUGGESTION BY MS. WEBB THAT MS. JAURIQUE'S ABSENCE ON THEN
APPROVED LEAVE WOULD CAUSE ANY PROBLEM WHATEVER AND, SO FAR AS THE
RECORD SHOWS, RELATIONS BETWEEN MS. WEBB AND MS. JAURIGUE WERE
HARMONIOUS AND COOPERATIVE - UNTIL MR. WARD'S CALL AT 4:00 P.M. WHEN
MS. WEBB RETURNED AFTER TALKING TO MR. WARD, ALL WAS CHANGED. THE LEAVE
SHE HAD APPROVED EARLIER IN THE DAY WAS ABRUPTLY DISAPPROVED AND MS.
JAURIGUE WAS ORDERED TO REPORT FOR WORK THE FOLLOWING MONDAY, NOVEMBER
20, 1978, ON PAIN OF BEING CHARGED WITH AWOL AND WITHOUT PAY. OF
COURSE, MR. WARD CONFIRMED THIS ACTION ON NOVEMBER 20 AND, FURTHER, TOLD
MS. JAURIGUE HER ANNUAL LEAVE, WHICH HE HAD APPROVED ON SEPTEMBER 6, WAS
NOW DISAPPROVED.
THE ONLY THING THAT HAD CHANGED WAS THAT ON NOVEMBER 15, 1978, MR.
WARD HAD LEARNED, FOR THE FIRST TIME, THAT MS. JAURIGUE HAD GIVEN A
STATEMENT TO MR. LABONSKI WHICH WAS A MAJOR BASIS FOR THE UNFAIR LABOR
PRACTICE CHARGE (PRE-COMPLAINT) FILED BY MR. LABONSKI UNDER THE ORDER ON
OCTOBER 30, 1978, AND DISCLOSED AS AN ATTACHMENT TO A LETTER FILED BY
MR. LABONSKI IN CONNECTION THEREWITH ON NOVEMBER 15, 1978. I CONCLUDE
THAT MR. WARD'S ACTIONS ON NOVEMBER 17 AND 20, 1978, IN DENYING ANNUAL
AND SICK LEAVE FOR MS. JAURIGUE WAS, AT LEAST IN PART, MOTIVATED BY THE
FACT THAT MS. JAURIGUE HAD GIVEN A STATEMENT TO MR. LABONSKI WHICH WAS A
BASIS FOR AN UNFAIR LABOR PRACTICE CHARGE, AND THAT MR. WARD'S ACTIONS
THEREBY VIOLATED SECTION 19(A)(1) AND (2) OF THE ORDER.
WHETHER SUCH CONDUCT ALSO VIOLATED SECTION 19(A)(4) OF THE ORDER MUST
BE FURTHER CONSIDERED. SECTION 19(A)(4) PROVIDED AS FOLLOWS:
"SEC. 19. UNFAIR LABOR PRACTICES. A) AGENCY MANAGEMENT SHALL NOT--
. . . .
(4) DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BECAUSE
HE HAS FILED A
COMPLAINT OR GIVEN TESTIMONY UNDER THIS ORDER;"
SECTION 203.2(A) OF THE REGULATIONS PROVIDED AS FOLLOWS:
"(A) ACTION TO BE TAKEN BEFORE FILING A COMPLAINT. A PARTY DESIRING
TO FILE A COMPLAINT
ALLEGING AN UNFAIR LABOR PRACTICE UNDER SECTION 19 OF THE ORDER . . .
MUST TAKE THE FOLLOWING
ACTION FIRST:
(1) A CHARGE IN WRITING ALLEGING THE UNFAIR LABOR PRACTICE MUST BE
FILED DIRECTLY WITH THE
PARTY OR PARTIES AGAINST WHOM THE CHARGE IS DIRECTED . . . ." SECTION
203.3 OF THE REGULATIONS PRESCRIBED THE CONTENTS OF THE COMPLAINT AND
SUPPORTING DOCUMENTATION AND SECTION 203.3(B) SPECIFICALLY PROVIDED
THAT, AMONG OTHER DOCUMENTS TO BE FILED WITH THE COMPLAINT, WAS "THE
PRE-COMPLAINT CHARGE." ALTHOUGH A CHARGE WAS A NECESSARY PRECONDITION TO
A COMPLAINT AND GOVERNED THE SCOPE OF THE COMPLAINT, OBVIOUSLY, A CHARGE
WAS NOT A COMPLAINT. AT THE TIME OF THE DISCRIMINATORY ACTION AGAINST
MS. JAURIGUE ONLY THE CHARGE, PURSUANT TO SECTION 203.2(A)(1), HAD BEEN
FILED (A CHARGE UNDER THE STATUTE, OR THE COMPLAINT FORM OF THE
ASSISTANT SECRETARY, WAS FILED ON JANUARY 15, 1979, G.C. EXH. 1B), MS.
JAURIGUE HAD NOT "GIVEN TESTIMONY UNDER THE ORDER" BEYOND HAVING GIVEN
HER SIGNED STATEMENT, WHICH WAS NOT UNDER OATH, TO MR. LABONSKI,
PRESIDENT OF THE UNION. READ LITERALLY, THE DISCRIMINATORY ACTION
AGAINST MS. JAURIGUE ON NOVEMBER 17 AND 20, 1978, WAS NOT BECAUSE SHE
HAD FILED A COMPLAINT, AS NO COMPLAINT HAD THEN BEEN FILED, OR BECAUSE
SHE HAD "GIVEN TESTIMONY", AS SHE HAD NOT "TESTIFIED" IN ANY MANNER BUT
HAD SIMPLY GIVEN A WRITTEN, SIGNED STATEMENT.
THAT SECTION 19(A)(4) SHOULD NOT BE READ SO LITERALLY AND APPLIED IN
SO RESTRICTIVE A MANNER, IS, I BELIEVE, APPARENT FROM THE CONSTRUCTION
AND APPLICATION OF THE ESSENTIALLY LIKE PROVISION OF THE NATIONAL LABOR
RELATIONS ACT WHICH PROVIDES AS FOLLOWS:
"SEC. 8(A) IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN EMPLOYER--
(4) TO DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE HE HAS FILED CHARGES
OR GIVEN TESTIMONY UNDER THIS ACT;" (29 U.S.C. SECTION 158(A)(4))
/19/
IN NATIONAL LABOR RELATIONS BOARD V. SCRIVENER, D/B/A/ AA ELECTRIC
COMPANY, 405 U.S. 117(1972), THE SUPREME COURT REVIEWED AT LENGTH THE
CONSTRUCTION OF SECTION 8(A)(4) AND STATED, IN PART, AS FOLLOWS:
"1. CONSTRUING SEC. 8(A)(4) TO PROTECT THE EMPLOYEE DURING THE
INVESTIGATIVE STAGE AS WELL
AS IN CONNECTION WITH THE FILING OF A FORMAL CHARGE OR THE GIVING OF
FORMAL TESTIMONY COMPORTS
WITH THE OBJECTIVE OF THAT SECTION. MR. JUSTICE BLACK, IN NO
UNCERTAIN TERMS, SPELLED OUT THE
CONGRESSIONAL PURPOSE:
'" . . . CONGRESS HAS MADE IT CLEAR THAT IT WISHES ALL PERSONS WITH
INFORMATION ABOUT SUCH
PRACTICES TO BE COMPLETELY FREE FROM COERCION AGAINST REPORTING THEM
TO THE BOARD . . . .
"2. THE ACT'S REFERENCE IN SEC. 8(1)(4) TO AN EMPLOYEE WHO 'HAS
FILED CHARGES OR GIVEN
TESTIMONY,' COULD BE READ STRICTLY AND CONFINED IN ITS REACH TO
FORMAL CHARGES AND FORMAL
TESTIMONY. IT CAN ALSO BE READ MORE BROADLY. ON TEXTUAL ANALYSIS
ALONE, THE PRESENCE OF THE
PROCEEDING WORKS, 'TO DISCHARGE OR OTHERWISE DISCRIMINATE' REVEALS,
WE THINK, PARTICULARLY BY
THE WORD 'OTHERWISE,' AN INTENT ON THE PART OF CONGRESS TO AFFORD
BROAD RATHER THAN NARROW
PROTECTION TO THE EMPLOYEE. THIS WOULD BE CONSISTENT WITH SEC.
8(A)(4)'S PURPOSE AND
OBJECTIVE HEREINABOVE DESCRIBED.
. . . .
"3. THIS BROAD INTERPRETATION OF SEC. 8(A)(4) ACCORDS WITH THE LABOR
BOARD'S VIEW
ENTERTAINED FOR MORE THAN 35 YEARS. SECTION 8(A)(4) HAD ITS ORIGIN
IN THE NATIONAL INDUSTRIAL
RECOVERY ACT . . . .
EXECUTIVE ORDER 6711 . . . PROVIDED, 'NO EMPLOYER . . . SHALL DISMISS
OR TERMINATE ANY
EMPLOYEE FOR MAKING A COMPLAINT OR GIVING EVIDENCE WITH RESPECT TO AN
ALLEGED VIOLATION
. . . .' THE FIRST LABOR BOARD INTERPRETED THAT PHRASE TO PROTECT THE
EMPLOYEE NOT ONLY AS TO
FORMAL TESTIMONY BUT ALSO AS TO THE GIVING OF INFORMATION RELATING TO
VIOLATIONS OF THE NIRA
. . . . IN SEC. 8(A)(4) THE WORD 'TESTIMONY,' RATHER THAN
'EVIDENCE,' APPEARS. BUT THE NEW
LANGUAGE WAS DESCRIBED AS 'MERELY A REITERATION' OF THE EXECUTIVE
ORDER LANGUAGE AND IT WAS
STATED THE 'NEED FOR THIS PROVISION IS ATTESTED' BY THE ABOVE CITED
BOARD DECISIONS . . . .
"4. THIS INTERPRETATION, IN OUR VIEW, ALSO SQUARES WITH THE
PRACTICALITIES OF APPROPRIATE
AGENCY ACTION . . . .
. . . .
"6. THE APPROACH TO SEC. 8(A)(4) GENERALLY HAS BEEN A LIBERAL ONE IN
ORDER FULLY TO
EFFECTUATE THE SECTION'S REMEDIAL PURPOSE . . . .
"WE ARE AWARE OF NO SUBSTANTIAL COUNTERVAILING CONSIDERATIONS. WE
THEREFORE CONCLUDE THAT
AN EMPLOYER'S DISCHARGE OF AN EMPLOYEE BECAUSE THE EMPLOYEE GAVE A
WRITTEN SWORN STATEMENT TO
A BOARD FIELD EXAMINER INVESTIGATING AN UNFAIR LABOR PRACTICE CHARGE
. . . CONSTITUTES A
VIOLATION OF SEC. 8(A)(4) . . . ."
WITH FULL RECOGNITION OF THE STRUCTURAL DIFFERENCES OF THE ORDER,
INCLUDING ITS PRECOMPLAINT PHASE WHEREBY THE CHARGE IS FILED WITH THE
PARTY AGAINST WHOM THE CHARGE IS DIRECTED, AND THE FACTS THAT THE
STATEMENT GIVEN WAS NOT UNDER OATH AND WAS GIVEN TO THE UNION AND NOT TO
A REPRESENTATIVE OF THE ASSISTANT SECRETARY, I CONCLUDE THAT THE PURPOSE
AND INTENT OF SECTION 19(A)(4) OF THE ORDER WAS TO PROTECT THE EMPLOYEE
DURING THE PRE-COMPLAINT STAGE AS WELL AS IN CONNECTION WITH THE FILING
OF A FORMAL COMPLAINT AND, FOR THE REASONS STATED BY THE SUPREME COURT
AS TO SECTION 8(A)(4) OF THE NLRA, SHOULD BE BROADLY AND LIBERALLY
CONSTRUED IN ORDER TO EFFECTUATE THE REMEDIAL PURPOSE OF SECTION
19(A)(4). ACCORDINGLY, I CONCLUDE THAT THE DISCRIMINATORY ACTIONS SET
FORTH ABOVE ALSO VIOLATED SECTION 19(A)(4) OF THE ORDER.
3. CASE NOS. 3-CA-35 AND 3-CA-36
CASE NO. 3-CA-35 CONCERNS EVENTS WHICH OCCURRED ON JANUARY 9, 1979,
BEFORE THE EFFECTIVE DATE OF THE STATUTE, AND, SPECIFICALLY, A
MEMORANDUM FROM MR. BENSON TO MS. JAURIGUE WHICH INFORMED HER THAT ANY
SICK LEAVE FOR HER WOULD BE APPROVED ONLY UPON PRESENTATION OF A
PHYSICIAN'S STATEMENT UPON HER RETURN TO DUTY, WHICH, IT IS ALLEGED, WAS
CONTRARY TO THE PRACTICE OF THE OFFICE AS TO OTHER EMPLOYEES WHICH WAS
THAT A PHYSICIAN'S STATEMENT WAS REQUIRED ONLY IF THE DURATION OF THE
LEAVE HAD BEEN FOR THREE OR MORE WORKING DAYS.
CASE NO. 3-CA-36 CONCERNS EVENTS WHICH OCCURRED ON JANUARY 22, 1979,
AFTER THE EFFECTIVE DATE OF THE STATUTE, AND, SPECIFICALLY, A MEETING
HELD BY MR. WARD AT WHICH HE GAVE MS. JAURIGUE A LETTER REQUIRING
ADDITIONAL DOCUMENTATION FOR SICK LEAVE TAKEN FROM NOVEMBER 22 TO
JANUARY 9, 1979, AND, IN ADDITION, HE REITERATED THAT MS. JAURIGUE MUST
COMPLY WITH MR. BENSON'S MEMORANDUM OF JANUARY 9, 1979.
IN EACH CASE, THE ALLEGED VIOLATION IS BOTTOMED ON THE ASSERTION THAT
RESPONDENT IMPOSED DISCRIMINATORY AND MORE ARDUOUS CONDITIONS ON MS.
JAURIGUE WITH RESPECT TO APPROVAL OF SICK LEAVE THAN IMPOSED ON OTHER
EMPLOYEES. WHATEVER THE PAST PRACTICE MAY HAVE BEEN GENERALLY, LOCAL
3705, BY ITS PRESIDENT, MR. LABONSKI, INSTITUTED CIVIL ACTION NO.
78-3900; AND PLAINTIFF, LOCAL 3705, BY ITS COUNSEL, MS. JAURIGUE
INDIVIDUALLY, AND ASSISTANT UNITED STATES ATTORNEY GORDON, FOR
RESPONDENT, ENTERED INTO A STIPULATION ON NOVEMBER 21, 1978 (FILED ON
DECEMBER 5, 1978, AFTER APPROVAL BY JUDGE BECKER ON DECEMBER 4, 1978,
G.C. EXH. 13) WHICH, AS TO MS. JAURIGUE, SPELLED OUT BOTH THE
REQUIREMENT AND PROCEDURE FOR APPROVAL OF SICK LEAVE FOR HER. THUS, THE
STIPULATION PROVIDED, IN PART, AS FOLLOWS:
" . . . IT IS UNDERSTOOD AND AGREED THAT MS. JAURIGUE WILL BRING A
SIGNED STATEMENT FROM A
DOCTOR WHICH WILL INDICATE THAT MEDICAL SERVICES HAVE BEEN RENDERED
TO HER DURING SAID SICK
LEAVE PERIOD AND/OR THAT HER ABSENCE FROM WORK WAS MEDICALLY
NECESSARY. IN THE ABSENCE OF THE
AFORESAID DOCUMENTATION, THE C.P.S.C. MAY VIEW THE TIME TAKEN BY MS.
JAURIGUE AS OTHER THAN AN
APPROVED SICK LEAVE PERIOD.
"IF HER MEDICAL CONDITION IS SUCH THAT SHE CAN RETURN EARLIER THAN AS
AFORESTATED SHE SHALL
DO SO.
"IF HER MEDICAL CONDITION IS SUCH THAT SHE MUST, FOR MEDICAL REASONS,
EXTEND HER SICK LEAVE
PERIOD SHE MAY DO SO AS IS NECESSARY INSOFAR AS SAID EXTENSION
CONFORMS TO RELEVANT LAW AND
REGULATION.
"THE INSTANT LAW SUIT SHALL BE HELD IN ABEYANCE UNTIL MS. JAURIQUE'S
RETURN FROM THE ABOVE
REFERENCED SICK LEAVE, AND IF THE FOREGOING AGREEMENT IS HONORED,
SAID CASE WILL BE DISMISSED
BY THE PLAINTIFF." (G.C. EXH. 13). WHETHER THE STIPULATION REFLECTED
EXISTING POLICY AND PRACTICE OR CONSTITUTES A NOVATION, ALL PARTIES
AGREED TO ITS TERMS. MR. BENSON'S MEMORANDUM OF JANUARY 9, 1979 (G.C.
EXH. 22) DID NO MORE THAN RESTATE THE TERMS OF THE STIPULATION AND
RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) OR (4) OF THE ORDER BY
INSISTING UPON COMPLIANCE WITH THE TERMS OF THE STIPULATION. MR. WARD'S
LETTER OF JANUARY 22, 1979, SPECIFICALLY REFERRED TO THE FACT THAT THE
ONLY DOCTOR'S STATEMENT FURNISHED COVERED ONLY A PORTION OF THE PERIOD
OF MS. JAURIQUE'S ABSENCE, FOR EXAMPLE, THAT IT EXTENDED ONLY THROUGH A
PERIOD ENDING JANUARY 4, 1979, AND, ACCORDINGLY, MR. WARD REQUESTED
ADDITIONAL STATEMENTS PRIOR TO AND SUBSEQUENT TO THE PERIOD COVERED BY
DR. PUCELIK'S STATEMENT. NEITHER BY REQUESTING SUCH ADDITIONAL
INFORMATION NOR BY REITERATION OF MR. BENSON'S MEMORANDUM OF JANUARY 9,
1979, FOR EXTENSION OF SICK LEAVE FOR THE SAME MEDICAL CONDITION, DID
RESPONDENT VIOLATE SECTIONS 7116(A)(1) OR (4) OF THE STATUTE INASMUCH AS
RESPONDENT DID NO MORE THAN INSIST UPON COMPLIANCE WITH THE TERMS OF THE
STIPULATION TO WHICH ALL PARTIES HAD AGREED.
MOREOVER, THE RECORD DOES NOT SHOW THAT, IN ANY EVENT, RESPONDENT
APPLIED ANY DIFFERENT REQUIREMENT AS TO APPROVAL OF SICK LEAVE, TO MS.
JAURIGUE THAN IT APPLIED UNDER LIKE CIRCUMSTANCES TO ALL OTHER
EMPLOYEES. FIRST, MS. JAURIGUE INFORMED MR. WARD ON JANUARY 22, 1979,
THAT THE SICK LEAVE, REQUESTED AFTER HER INITIAL RETURN TO WORK ON
JANUARY 9, WAS FOR THE SAME MEDICAL CONDITION, SO THAT REQUIREMENT OF A
DOCTOR'S STATEMENT WAS FULLY CONSISTENT WITH THE PRACTICE OF REQUIRING
SUCH STATEMENT WHEN THE DURATION EXCEED THREE OR MORE WORKING DAYS.
OBVIOUSLY, MS. JAURIQUE'S SICK LEAVE HAD GREATLY EXCEEDED 72 HOURS. NOR
DID MR. ARMBRUST'S TESTIMONY, WHICH RELATED TO BRIEF OUTPATIENT VISITS
FOLLOWING SURGERY, REFLECT A COMPARABLE EXTENSION OF SICK LEAVE.
SECOND, RESPONDENT WAS AWARE OF JOB INTERVIEWS BY MS. JAURIGUE DURING
PERIODS FOR WHICH SICK LEAVE HAD BEEN REQUESTED. POSSIBLE ABUSE OF SICK
LEAVE WOULD HAVE JUSTIFIED A REQUEST FOR A DOCTOR'S STATEMENT WHOLLY
APART FROM ANY 72 HOUR POLICY.
FOR ALL OF THE FOREGOING REASONS, THE COMPLAINTS IN CASE NOS.
3-CA-35 AND 3-CA-36 ARE HEREBY DISMISSED.
4. CASE NOS. 3-CA-220 AND 3-CA-221
ON APRIL 10, 1979, MR. WARD, BY HIS PERSONAL ATTORNEY, FILED A CIVIL
LIBEL ACTION AGAINST MS. JAURIGUE IN THE COURT OF COMMON PLEAS. CASE
NO. 3-CA-220 ALLEGES THAT RESPONDENT THEREBY VIOLATED SECTIONS
7116(A)(1) AND (4) OF THE STATUTE. THE RECORD SHOWS THAT MS. JAURIGUE
MADE CERTAIN STATEMENTS TO MESSRS. LABONSKI AND ARMBRUST IN THE LATTER
PART OF OCTOBER, 1978 (TR. 446) NOT TO MR. LABONSKI ALONE AS GENERAL
COUNSEL STATES (GENERAL COUNSEL'S BRIEF, P. 33). MR. WARD TESTIFIED
THAT HE CONSULTED PRIVATE COUNSEL FOR PERSONAL REASONS FOR CERTAIN
INCIDENTS THAT HAD OCCURRED TO HIM AS AN INDIVIDUAL. WHILE MR. WARD
WAS, UNDENIABLY, DIRECTOR OF RESPONDENT'S PHILADELPHIA AREA OFFICE, THE
RECORD IS DEVOID OF EVIDENCE OTHERWISE THAT RESPONDENT AUTHORIZED OR
KNOWINGLY PERMITTED MR. WARD TO INSTITUTE THIS SUIT. TO THE CONTRARY,
THE RECORD SHOWS THAT MR. WARD ACTED IN HIS INDIVIDUAL CAPACITY THROUGH
HIS OWN PRIVATE COUNSEL. HOWEVER, IN VIEW OF MY CONCLUSIONS, I FIND IT
UNNECESSARY TO DECIDE WHETHER, IF THE FILING OF A CIVIL SUIT BY MR. WARD
WAS AN UNFAIR LABOR PRACTICE, RESPONDENT WAS GUILTY OF AN UNFAIR LABOR
PRACTICE.
CASE NO. 3-CA-221 ALLEGES THAT A SUBPOENA SERVED ON MR. LABONSKI
VIOLATED SECTIONS 7116(A)(1)AND (4) OF THE STATUTE BECAUSE IT WAS SERVED
ON MR. LABONSKI AT HIS WORK PLACE IN THE PRESENCE OF OTHER EMPLOYEES.
ONLY ON THE THEORY THAT THE FILING OF THE SUIT WAS UNLAWFUL AND ANYTHING
DONE IN FURTHERANCE OF AN UNLAWFUL SUIT IS ITSELF UNLAWFUL (GENERAL
COUNSEL'S BRIEF, P. 35) CAN I PERCEIVE ANY BASIS FOR AN ALLEGATION THAT
SERVICE OF A SUBPOENA, EVEN AT A PLACE OF WORK, CONSTITUTES AN UNFAIR
LABOR PRACTICE. IN ANY EVENT, AS I CONCLUDE, FOR REASONS SET FORTH
HEREINAFTER, THAT THE FILING OF THE CIVIL ACTION BY MR. WARD DID NOT
CONSTITUTE AN UNFAIR LABOR PRACTICE, I FURTHER FIND THAT SERVICE OF THE
SUBPOENA DID NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
I AM AWARE OF NO DECISION UNDER THE ORDER OR THE STATUTE WHICH HAS
CONSIDERED WHETHER THE FILING OF A CIVIL ACTION MAY CONSTITUTE AN UNFAIR
LABOR PRACTICE. SINCE THE PURPOSE AND INTENT OF SECTION 7116(A)(1) OF
THE STATUTE IS INDISTINGUISHABLE, AS PERTAINS HEREIN, TO SECTION 8(A)(1)
OF THE NATIONAL LABOR RELATIONS ACT, I HAVE GIVEN CAREFUL CONSIDERATION
TO THE DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AND CONCLUDE
THAT, FOR REASONS WELL STATED BY THE BOARD, WITH APPROVAL MOST RECENTLY
BY THE SEVENTH CIRCUIT COURT OF APPEALS, THAT UNFAIR LABOR PRACTICE
ENFORCEMENT UNDER THE STATUTE SHOULD ALSO ACCOMODATE THE RIGHT OF THE
PERSONS TO LITIGATE THEIR CLAIMS IN COURT RATHER THAN TO CONDEMN THE
EXERCISE OF SUCH RIGHT AS AN UNFAIR LABOR PRACTICE. IN CLYDE TAYLOR
CO., 127 NLRB 103, 45 LRRM 1514(1960), IT WAS STATED AS FOLLOWS:
"THE CHAIRMAN (LEEDOM) AND MEMBERS RODGERS, BEAN AND JENKINS (JOSEPH
A.) ARE OF THE OPINION
THAT CARTER (W. T. CARTER, 90 NLRB 2020, 26 LRRM 1427(1950) WAS
ERRONEOUSLY DECIDED. THEY
AGREE WITH THE VIEW EXPRESSED BY FORMER CHAIRMAN HERZOG IN HIS
DISSENTING OPINION IN CARTER
THAT THE BOARD SHOULD ACCOMODATE ITS ENFORCEMENT OF THE ACT TO THE
RIGHTS OF ALL PERSONS TO
LITIGATE THEIR CLAIMS IN COURT, RATHER THAN CONDEMN THE EXERCISE OF
SUCH RIGHT AS AN UNFAIR
LABOR PRACTICE. ACCORDINGLY, THE CHAIRMAN AND MEMBERS RODGERS, BEAN
AND JENKINS HEREBY
OVERRULE CARTER . . . ."
(CHAIRMAN HERZOG HAD STATED IN HIS DISSENTING OPINION IN CARTER, AS
FOLLOWS: " . . . IT
MAY WELL BE THAT, IN GRANTING SUCH RELIEF, A COURT WOULD BE ACTING
INCONSISTENTLY WITH
GOVERNING FEDERAL LAW AND, INDEED, THAT THE RESPONDENT'S MOTIVE IN
SEEKING IT HERE WAS TO
INTERFERE WITH THE EMPLOYEES' RIGHTS. NEVERTHELESS, IT SEEMS TO ME
THAT THIS BOARD SHOULD
ACCOMODATE ITS ENFORCEMENT OF THE STATUTE TO THE TRADITIONAL RIGHT OF
ALL TO BRING THEIR
CONTENTIONS TO THE ATTENTION OF A JUDICIAL FORUM, RATHER THAN HOLD IT
TO BE AN UNFAIR LABOR
PRACTICE FOR THEM TO ATTEMPT TO DO SO." (26 LRRM AT 1432) THAT THE
REASON FOR THE RULE, ANNOUNCED BY THE BOARD IN CLYDE TAYLOR CO., SUPRA,
WAS, UNEQUIVOCALLY, TO PROTECT THE TRADITIONAL RIGHT OF ALL TO BRING
THEIR CONTENTIONS TO THE ATTENTION OF A JUDICIAL FORUM, /20/ AND NOT, AS
SUGGESTED BY THE GENERAL COUNSEL ONLY WHEN THERE IS "A REASONABLE BASIS
FOR FILING IT AND THE TRUE PURPOSE IN FILING THE SUITE (SIC) -
DEMONSTRATED BY THE EVIDENCE - IS LEGITIMATE AND LAWFUL, I.E., NOT FOR
THE PURPOSE OF INTERFERING WITH OR COERCING EMPLOYEES IN THE EXERCISE OF
THEIR STATUTORY RIGHTS" (GENERAL COUNSEL'S BRIEF, P. 31), HAS BEEN MADE
CLEAR IN BOARD DECISIONS SUBSEQUENT TO CLYDE TAYLOR CO., SUPRA, IF IT
WERE NOT CLEARLY IMPLICIT IN THE CLYDE TAYLOR DECISION ITSELF. ONE SUCH
DECISION, WHICH IS OF PARTICULAR INTEREST SINCE, EXCEPT THAT IT INVOLVED
AN ACTION FOR SLANDER RATHER THAN LIBEL, IT IS INDISTINGUISHABLE IN
PRINCIPLE FROM THE INSTANT CASE, IS S.E. NICHOLS MARCY CORP., 229 NLRB
75, 95 LRRM 1110(1977), IN WHICH THE BOARD STATED AS FOLLOWS:
"THE RECORD SHOWS THAT THE SUPERVISOR INVOLVED HEREIN, ASSISTANT
STORE MANAGER LAWRENCE
BARTON, TOLD EMPLOYEE SHAFFER THAT IF THE RUMOR THAT SHE WAS IN THE
UNION EVER BECAME KNOWN TO
MANAGER KAREZ IT WOULD MEAN HER JOB. SHAFFER REPEATED THIS STATEMENT
AT TWO EMPLOYEE MEETINGS
HELD BY RESPONDENT. THE CREDITED TESTIMONY INDICATES THAT THE
RESPONDENT'S PRESIDENT, DURING
THE COURSE OF THE SECOND OF THE ABOVE MEETINGS, TOLD SHAFFER TO 'SHUT
HER MOUTH' . . . .
" . . . THE EVIDENCE IS NOT CLEAR, HOWEVER, THAT THE RESPONDENT
ACTUALLY PARTICIPATED IN
THE FILING OF THE SUIT IN WHICH ONLY BARTON AND SHAFFER ARE NAMED
PARTIES. WE NEED NOT RESOLVE
THIS ISSUE SINCE THERE IS LONGSTANDING BOARD PRECEDENT CONSISTENTLY
FOLLOWED THAT THE FILING
OF A CIVIL SUIT . . . DOES NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
"CONSISTENT WITH THIS LONGSTANDING BOARD PRECEDENT, WE THEREFORE HAVE
DECIDED TO REVERSE
THAT PORTION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION WHICH FINDS
THAT THE RESPONDENT
VIOLATED SECTION 8(A)(1) OF THE ACT BY INSTITUTING THE SLANDER
LAWSUIT AGAINST SHAFFER
. . . ." (95 LLRM AT 1110-1111).
IN POWER SYSTEMS, INC. V. NATIONAL LABOR RELATIONS BOARD, 601 F.2D
936 (7TH CIR. 1979) THE COURT STATES, IN PART, AS FOLLOWS:
"IN ITS DECISION, THE BOARD DID NOT REJECT THE PRINCIPLE ANNOUNCED IN
CLYDE TAYLOR, SUPRA,
127 NLRB AT 109, AND FOLLOWED IN MANY SUBSEQUENT DECISIONS THAT THE
FILING OF A CIVIL
COMPLAINT BY AN EMPLOYER OR LABOR ORGANIZATION AGAINST AN EMPLOYEE OR
MEMBER DOES NOT VIOLATE
THE ACT."
I HAVE REVIEWED POWER SYSTEMS, INC., 239 NLRB NO. 56, 99 LRRM
1652(1978), ENFORCEMENT DENIED, 601 F.2D 936(7TH CIR. 1979) AND FIND
THAT DECISION WHOLLY INAPPLICABLE TO THE INSTANT CASE. THE GRAVAMEN OF
THE COMPLAINT, AND THE BOARD'S FINDING OF A VIOLATION, IN POWER SYSTEMS,
INC., SUPRA, WAS, QUITE SIMPLY THAT THE CIVIL ACTION HAD AS ITS
OBJECTIVE PENALIZING A FORMER EMPLOYEE FOR FILING CHARGES WITH THE
BOARD, NOTWITHSTANDING THAT THE INDIVIDUAL APPEARED TO HAVE GROSSLY
ABUSED HIS RIGHT TO FILE CHARGES TO THE POINT, AS THE COURT OF APPEALS,
IN EFFECT, CLEARLY CONCLUDED, THAT IT AMOUNTED TO AN ABUSE OF PROCESS.
SUCH EXCEPTION BY THE BOARD IS NOT ONLY UNDERSTANDABLE BUT WOULD APPEAR
MANDATED BY SECTION 8(A)(4) OF THE NLRA, AS WELL AS BY 7116(A)(4) OF THE
STATUTE.
THE CIVIL ACTION HERE WAS NOT BECAUSE MS. JAURIGUE HAD,
" . . . FILED A COMPLAINT, AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY
INFORMATION OR
TESTIMONY UNDER THIS CHAPTER" (7116(A)(4)) BUT, RATHER, BECAUSE MR.
WARD ASSERTED THAT MS. JAURIGUE HAD LIBELED HIM. OF COURSE, AN IN S.E.
NICHOLS MARCY CORP., SUPRA, THERE IS A DIRECT RELATIONSHIP BETWEEN
MATTERS ASSERTED IN THE LIBEL ACTION AND THE UNFAIR LABOR PRACTICE,
INDEED; FOR REASONS SET FORTH HEREINABOVE, I FOUND THAT RESPONDENT
VIOLATED SECTION 19(A)(4) OF THE ORDER BY DENIAL OF ANNUAL AND SICK
LEAVE BECAUSE MS. JAURIGUE HAD GIVEN A STATEMENT TO MR. LABONSKI.
NEVERTHELESS, THE BALANCE WHICH THE BOARD HAS STRUCK AND WHICH, FOR THE
REASONS WELL AND FULLY STATED BY THE BOARD, I BELIEVE SHOULD BE STRUCK
UNDER THE STATUTE, IS THAT THE FILING OF A CIVIL SUIT FOR LIBEL, AS
DISTINGUISHABLE FROM THE DISCRIMINATION IN EMPLOYMENT, DOES NOT VIOLATE
SECTION 7116(A)(1) OR (4) OF THE STATUTE.
ACCORDINGLY, FOR THE FOREGOING REASONS, THE COMPLAINTS IN CASE NOS.
3-CA-220 AND 3-CA-221 ARE HEREBY DISMISSED.
5. REMEDY
GENERAL COUNSEL HAS REQUESTED THAT ANY ORDER,
" . . . SHOULD INCLUDE, AT A MINIMUM, A REQUIREMENT THAT THE CHIEF
OFFICIAL OF THE
RESPONDENT AGENCY DIRECT PERIODIC HEADQUARTERS REVIEW OF PERSONNEL
ACTIONS TAKEN BY
RESPONDENT'S AREA DIRECTOR WITH REGARD TO LOCAL UNION OFFICIALS TO
INSURE THAT NO FUTURE
UNLAWFUL TREATMENT IS ACCORDED THOSE OFFICIALS BECAUSE OF THEIR
PROTECTED UNION
ACTIVITIES. FINALLY, IT IS RECOMMENDED THAT AN APPROPRIATE NOTICE TO
EMPLOYEES BE POSTED
NATIONWIDE IN ALL OF THE RESPONDENT'S OFFICES." (GENERAL COUNSELS
BRIEF, P. 36).
THE RECORD CONTAINS NO BASIS WHATEVER FOR ANY SUGGESTION THAT AN
ORDER OF THE AUTHORITY WILL NOT, IN GOOD FAITH, BE COMPLIED WITH BY
RESPONDENT'S AREA DIRECTOR. INDEED, IN THE ABSENCE OF A HISTORY TO
JUSTIFY HEADQUARTERS REVIEW OF PERSONNEL ACTION TAKEN BY RESPONDENT'S
AREA DIRECTOR, I DEEM SUCH PROPOSED ORDER, IF WITHIN MY POWER TO GRANT,
INAPPROPRIATE. WITH REGARD TO NATIONWIDE POSTING, NOT ONLY IS THE
RECORD DEVOID OF ANY JUSTIFICATION FOR SUCH ACTION, BUT THE RECORD
AFFIRMATIVELY DISCLAIMS SUCH ACTION. THUS, RESPONDENT, AS EARLY AS
OCTOBER, 1978, WAS ENTIRELY COOPERATIVE WITH THE DESIRE OF MS. JAURIGUE
TO TRANSFER TO ANOTHER OFFICE AND SHE IS NOW LOCATED IN RESPONDENT'S
DALLAS OFFICE. THE RECORD SHOWS CERTAIN CONDUCT IN VIOLATION OF THE
ORDER AT PHILADELPHIA, AS TO WHICH AN APPROPRIATE ORDER, INCLUDING A
BROAD ORDER IN THE SENSE THAT IT WILL APPLY TO ANY LIKE OR RELATED
CONDUCT, WILL ISSUE; BUT NOT OTHERWISE.
RECOGNIZING THAT MS. JAURIGUE, WHILE STILL EMPLOYED BY RESPONDENT, IS
NO LONGER LOCATED AT RESPONDENT'S PHILADELPHIA AREA OFFICE, I HAVE
PROVIDED IN THE ATTACHED ORDER THAT MS. JAURIGUE BE NOTIFIED, IN
WRITING, BY RESPONDENT THAT SHE WILL NOT BE DENIED LEAVE BECAUSE SHE HAS
EXERCISED PROTECTED RIGHTS UNDER THE ORDER AND/OR UNDER THE STATUTE. IN
ADDITION, THE ORDER EXPRESSLY COVERS ANY LIKE OR RELATED ACTIVITY UNDER
THE STATUTE, AS WELL AS THE EXECUTIVE ORDER, SINCE SUCH PORTION OF THE
ORDER OPERATES IN FUTURO AND, OF COURSE, FROM JANUARY 11, 1979, THE
STATUTE HAS SUPPLANTED THE EXECUTIVE ORDER.
COUNSEL FOR THE CHARGING PARTY REQUESTS A VARIETY OF ACTIONS, WHICH
ARE, TO SAY THE LEAST, INNOVATIVE; BUT WHICH: A) I DEEM BEYOND MY
AUTHORITY TO GRANT, SUCH AS TERMINATION OF MR. WARD OR HIS REDUCTION IN
GRADE AND SUSPENSION WITHOUT PAY, A FINE, PUNITIVE AND COMPENSATORY
DAMAGES ETC.; AND B) I DEEM INAPPROPRIATE EVEN IF IT WERE ASSUMED THAT,
IN A PROPER CASE, COULD BE ENTERTAINED. IN ADDITION, A REASONABLE
ATTORNEY'S FEE HAS BEEN REQUESTED; HOWEVER I DO NOT FIND THAT A PROPER
BASIS HAS BEEN SHOWN FOR THE AWARD OF A REASONABLE ATTORNEY FEE PURSUANT
TO SECTION 702 OF P.L. 95-454, WHICH AMENDED SECTION 5596(B) OF TITLE 5,
UNITED STATES CODE, AND THEREFORE, THE REQUEST FOR AN ATTORNEY'S FEE IS
DENIED.
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 19(A)(1), (2), AND (4)
OF THE ORDER IN CASE NO. 3-CA-12 AS ALLEGED IN THE COMPLAINT, AN
APPROPRIATE ORDER DESIGNED TO REMEDY THE UNFAIR LABOR PRACTICE FOUND
THEREIN IS SET FORTH HEREINAFTER; AND HAVING FOUND THAT RESPONDENT
VIOLATED SECTIONS 19(A)(1), (2), AND (4) OF THE ORDER IN CASE NO.
3-CA-34 AS ALLEGED IN THE COMPLAINT, AN APPROPRIATE ORDER DESIGNED TO
REMEDY THE UNFAIR LABOR PRACTICE FOUND THEREIN IS ALSO SET FORTH
HEREINAFTER.
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE THE ORDER AS ALLEGED IN
CASE NO. 3-CA-35, OR OF THE STATUTE AS ALLEGED IN CASE NOS. 3-CA-36,
3-CA-220 AND 3-CA-221, THE COMPLAINT IN EACH OF THOSE CASES, I.E.,
3-CA-35, 3-CA-36, 3-CA-221 AND 3-CA-221, IS HEREBY DISMISSED.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS THEREUNDER, 29 C.F.R. SECTION
203.26(B); AND SECTION 2400.2 OF THE FINAL RULES AND REGULATIONS, 5
C.F.R. CHAPTER XIV, SUBCHAPTER A, FED. REG., VOL. 45, NO. 12, JANUARY
17, 1980, THE AUTHORITY HEREBY ORDERS THAT THE CONSUMER PRODUCT SAFETY
COMMISSION SHALL:
1. CEASE AND DESIST FROM:
(A) DETAILING OR ASSIGNING RAYMOND LABONSKI, OR ANY OTHER OFFICIAL OF
LOCAL 3705, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OUT OF
THE PHILADELPHIA AREA OFFICE, OR FROM A NORMAL DUTY STATION, AS
PUNISHMENT FOR, OR IN RETALIATION FOR, ENGAGEMENT IN ACTIVITIES ON
BEHALF OF LOCAL 3705.
(B) DISAPPROVING, WITHHOLDING, OR DELAYING APPROVAL OF ANNUAL LEAVE
AND/OR SICK LEAVE FOR MARIA JAURIGUE, OR FOR ANY OTHER EMPLOYEE, AS
PUNISHMENT FOR, OR IN RETALIATION FOR, ENGAGING IN PROTECTED ACTIVITY
UNDER EXECUTIVE ORDER 11491, AS AMENDED, INCLUDING, BUT NOT LIMITED TO,
THE FILING OF A COMPLAINT OR THE GIVING OF TESTIMONY UNDER THE ORDER.
(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 BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE ENCOURAGING OR DISCOURAGING
MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN REGARD TO
HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT; OR
DISCIPLINING OR OTHERWISE DISCRIMINATING AGAINST AN EMPLOYEE BECAUSE THE
EMPLOYEE HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER EXECUTIVE ORDER
11491, AS AMENDED, OR BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT,
AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
(A) ADVISE MARIA JAURIGUE, IN WRITING, AS SHE IS NO LONGER LOCATED IN
ITS PHILADELPHIA AREA OFFICE, THAT IT WILL NOT DISAPPROVE, WITHHOLD, OR
DELAY APPROVAL OF ANNUAL LEAVE AND/OR SICK LEAVE TO WHICH SHE MAY BE
ENTITLED, AS PUNISHMENT FOR, OR IN RETALIATION FOR, ANY PROTECTED
ACTIVITY ENGAGED IN BY HER, INCLUDING, BUT NOT LIMITED TO, THE FILING OF
A COMPLAINT OR THE GIVING OF TESTIMONY UNDER EXECUTIVE ORDER 11491, AS
AMENDED, OR BECAUSE SHE HAS FILED A COMPLAINT, AFFIDAVIT, OR PETITION,
OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
(B) POST AT EACH FACILITY OF ITS PHILADELPHIA AREA OFFICE, INCLUDING
ALL RESIDENT OFFICES, COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON
FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE DIRECTOR OF THE PHILADELPHIA AREA OFFICE,
CONSUMER PRODUCT SAFETY COMMISSION, AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES,
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
EMPLOYEES ARE CUSTOMARILY POSTED, INCLUDING, BUT NOT LIMITED TO, SUCH
BULLETIN BOARDS AND OTHER PLACES IN THE PHILADELPHIA AREA OFFICE AND IN
EACH RESIDENT OFFICE. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO
INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 5, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF EXECUTIVE ORDER 11491, AS
AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DETAIL OR ASSIGN RAYMOND LABONSKI, OR ANY OTHER OFFICIAL
OF LOCAL 3705, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, OUT
OF THE PHILADELPHIA AREA OFFICE, OR FROM A NORMAL DUTY STATION, AS
PUNISHMENT FOR, OR IN RETALIATION FOR, ENGAGEMENT IN ACTIVITIES ON
BEHALF OF LOCAL 3705.
WE WILL NOT DISAPPROVE, WITHHOLD, OR DELAY APPROVAL OF ANNUAL LEAVE
AND/OR SICK LEAVE FOR MARIA JAURIGUE, OR FOR ANY OTHER EMPLOYEE, AS
PUNISHMENT FOR, OR IN RETALIATION FOR, ENGAGING IN PROTECTED ACTIVITY,
AND WE WILL ADVISE MARIA JAURIGUE, IN WRITING, AS SHE IS NO LONGER
LOCATED IN THE PHILADELPHIA AREA OFFICE, THAT WE WILL NOT DISAPPROVE,
WITHHOLD, OR DELAY APPROVAL OF ANNUAL LEAVE AND/OR SICK LEAVE TO WHICH
SHE MAY BE ENTITLED AS PUNISHMENT FOR, OR IN RETALIATION FOR, ANY
PROTECTED ACTIVITY ENGAGED IN BY HER, INCLUDING, BUT NOT LIMITED TO, THE
FILING OF A COMPLAINT OR THE GIVING OF TESTIMONY UNDER EXECUTIVE ORDER
11491, AS AMENDED, OR BECAUSE SHE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER EXECUTIVE
ORDER 11491, AS AMENDED, OR UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE; ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR
ORGANIZATION BY DISCRIMINATION IN REGARD TO HIRING, TENURE, PROMOTION,
OR OTHER CONDITIONS OF EMPLOYMENT, OR DISCIPLINE OR OTHERWISE
DISCRIMINATE AGAINST ANY EMPLOYEE BECAUSE THE EMPLOYEE HAS FILED A
COMPLAINT OR HAS GIVEN TESTIMONY UNDER EXECUTIVE ORDER 11491, AS
AMENDED, OR BECAUSE THE EMPLOYEE HAS FILED A COMPLAINT, AFFIDAVIT, OR
PETITION, OR HAS GIVEN ANY INFORMATION OR TESTIMONY UNDER THE FEDERAL
SERVICES LABOR-MANAGEMENT RELATIONS STATUTE.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
DIRECTOR
PHILADELPHIA AREA OFFICE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM 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: 1730 K STREET, N.W., ROOM 401, WASHINGTON, D.C. 20006.
--------------- FOOTNOTES$ ---------------
/1/ EXCEPTIONS WERE ALSO FILED BY RESPONDENT'S AREA DIRECTOR, THE
INDIVIDUAL WHO WAS ALLEGED TO HAVE TAKEN VARIOUS ACTIONS WHICH FORMED
THE BASES OF THE COMPLAINTS HEREIN. THE RECORD INDICATES THAT, WITH
RESPECT TO THE VIOLATIONS FOUND BY THE ADMINISTRATIVE LAW JUDGE, THIS
INDIVIDUAL WAS ACTING SOLELY AS AN AGENT OF THE RESPONDENT AND THAT THE
RESPONDENT DID NOT EXCEPT TO SUCH FINDINGS. UNDER THESE CIRCUMSTANCES,
THE AUTHORITY CONCLUDES THAT THE RESPONDENT'S AREA DIRECTOR IS NOT A
SEPARATE PARTY TO THE PROCEEDINGS AND THEREFORE LACKS STANDING TO FILE
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER. SUCH EXCEPTIONS THEREFORE HAVE NOT BEEN CONSIDERED BY THE
AUTHORITY IN REACHING THE DISPOSITION HEREIN.
/2/ THE AUTHORITY DOES NOT, HOWEVER, ADOPT THE ADMINISTRATIVE LAW
JUDGE'S FINDING OF A 19(A)(2) VIOLATION IN CASE NO. 3-CA-34 INASMUCH AS
NO SUCH ALLEGATION WAS CONTAINED IN THE COMPLAINT NOR WAS IT MADE AN
AMENDMENT TO THE COMPLAINT.
/3/ THE RESPONDENT'S SOLE EXCEPTION, WHICH SEEKS AN EXEMPTION FROM
THE REQUIREMENT OF POSTING A REMEDIAL NOTICE, IS BASED UPON ACTIONS
TAKEN BY THE CHARGING PARTY SUBSEQUENT TO THE ISSUANCE OF THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
NOTWITHSTANDING THE ACTIONS TAKEN BY THE CHARGING PARTY, SUCH AS ITS
POSTING OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER, THE AUTHORITY FINDS THAT THE POSITING OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED ORDER BY THE CHARGING PARTY IS NOT SUFFICIENT TO
REMEDY THE UNFAIR LABOR PRACTICE FOUND HEREIN. RATHER, THE NOTICE THAT
IS POSTED SHOULD BE ONE WHICH IS ISSUED BY THE AUTHORITY, SIGNED BY THE
RESPONDENT, AND POSTED AT SUCH LOCATIONS AS THE AUTHORITY DIRECTS. FOR
THESE REASONS, THE AUTHORITY SHALL ORDER THAT THE RESPONDENT COMPLY WITH
THE AUTHORITY'S POSTING REQUIREMENTS.
/4/ TRANSITION RULES AND REGULATIONS, EFFECTIVE JANUARY 1, 1979,
FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979, 5 C.F.R. CHAPTER XIV,
PART 2400; INTERIM RULES AND REGULATIONS, EFFECTIVE JULY 30, 1979,
FEDERAL REGISTER, VOL. 44, NO. 147, JULY 30, 1979, 5 C.F.R. CHAPTER XIV,
PART 2400, ET SEQ., AND FINAL RULES AND REGULATIONS, EFFECTIVE JANUARY
28, 1980, FEDERAL REGISTER, VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R.
CHAPTER XIV, PART 2400, ET SEQ..
/5/ SECTION 7135(B) OF THE STATUTE SPECIFICALLY PROVIDES, IN PART,
THAT "POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER EXECUTIVE
ORDER 11491 . . . IN EFFECT ON THE EFFECTIVE DATE OF THIS CHAPTER, SHALL
REMAIN IN FULL FORCE AND EFFECT . . . ." SECTION 2423.1 OF THE
REGULATIONS PROVIDE THAT PART 2423 " . . . IS APPLICABLE TO ANY CHARGE
OF ALLEGED UNFAIR LABOR PRACTICES FILED . . . ON OR AFTER JANUARY 11,
1979"; AND, PURSUANT TO SECTIONS 7104(F) AND 7134 OF THE STATUTE, ALL
CHARGES OF ALLEGED UNFAIR LABOR PRACTICES UNDER THE ORDER FILED ON OR
AFTER JANUARY 11, 1979 WILL BE PROCESSED BY THE GENERAL COUNSEL AND THE
AUTHORITY IN ACCORDANCE WITH PARTS 2423 AND 2429 OF THE REGULATIONS.
/6/ SECTION 2421.11 OF THE REGULATIONS DEFINES "PARTY" AS FOLLOWS:
"'PARTY' MEANS (A) ANY PERSON: (1) FILING A CHARGE, PETITION, OR
REQUEST; (2) NAMED IN A
CHARGE, COMPLAINT, PETITION, OR REQUEST; (3) WHOSE INTERVENTION IN A
PROCEEDING HAS BEEN
PERMITTED OR DIRECTED BY THE AUTHORITY . . . ."
THE RULES AND REGULATIONS PRESCRIBE "RIGHTS OF PARTIES" (SECTION
2423.15 OF THE INTERIM RULES, SECTION 2423.16 OF THE FINAL RULES) AS
FOLLOWS:
"A PARTY SHALL HAVE THE RIGHT TO APPEAR AT ANY HEARING IN PERSON, BY
COUNSEL, OR BY OTHER
REPRESENTATIVE, AND TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
INTRODUCE . . . EVIDENCE
. . . EXCEPT THAT THE PARTICIPATION OF ANY PARTY SHALL BE LIMITED TO
THE EXTENT PRESCRIBED BY
ITS ADMINISTRATIVE LAW JUDGE . . ."
/7/ AS STATED,
"THE GENERAL COUNSEL HAS THE SOLE BURDEN AND IS THE SOLE CONTROL OF
THIS CASE. ANY OTHER
PERSON, INCLUDING THE CHARGING PARTY, THAT APPEARS WILL BE STRICTLY
SUPPLEMENTAL TO THE CASE
OF THE GENERAL COUNSEL.
"THE GENERAL COUNSEL WILL CONTINUE TO CONTROL THIS PROCEEDING. THE
RIGHT OF THE CHARGING
PARTY . . . WILL BE LIMITED TO SUPPLEMENTATION TO THE EXTENT IT
APPEARS APPROPRIATE TO THE
COURT." (TR. 17)
/8/ MR. FINK BECAME A GS-11 IN MARCH, 1979.
/9/ I AM AWARE THAT MR. KRIVDA ON CROSS-EXAMINATION TESTIFIED THAT
MR. WARD TOLD HIM TO SEND A GS-11 FOR " . . . TWO WEEKS TO A MONTH."
(TR. 306, 307) AND THAT MR. KRIVDA HAD TOLD MR. ROBINSON THAT MR. WARD
HAD TOLD HIM THE DETAIL WAS TO BE FROM TWO FOR FOUR WEEKS (TR. 373). IN
VIEW OF THE ACTION TAKEN BY MR. KRIVDA AS WELL AS THE TESTIMONY OF MR.
LABONSKI, I DO NOT CREDIT MR. KRIVDA'S TESTIMONY THAT MR. WARD TOLD HIM
THAT THE DETAIL WAS TO BE TWO WEEKS TO A MONTH AND CREDIT MR. WARD'S
TESTIMONY THAT HE TOLD MR. KRIVDA THAT THE DETAIL WAS TO BE FOR A
MINIMUM OF ONE MONTH. HOWEVER, FROM SUBSEQUENT EVENTS, I FIND THAT MR.
KRIVDA REASONABLY CONCLUDED THAT MR. WARD AUTHORIZED HIS MODIFICATION OF
MR. LABONSKI'S DETAIL BY HIS DIRECTION THAT HE, KRIVDA, HANDLE MR.
LABONSKI'S PROBLEM.
/10/ MR. BENSON WAS CALLED AS A WITNESS BUT EXAMINED ONLY AS TO
GENERAL COUNSEL'S EXHIBIT NO. 23, A MEMORANDUM FROM MR. WARD TO MR.
BENSON, ACTING DIRECTOR, WITH REGARD TO "LEAVE APPROVAL - MARIA R.
JAURIGUE" DATED JANUARY 8, 1979. ACCORDINGLY, TESTIMONY OF ALL
WITNESSES CONCERNING THEIR STATEMENTS TO MR. BENSON OR HIS STATEMENTS TO
THEM, IS FULLY CREDITED IN THE ABSENCE OF ANY DENIAL BY MR. BENSON.
/11/ THE BABY WAS BORN AUGUST 31, 1978.
/12/ NEITHER MS. WEBB NOR MS. STEWART TESTIFIED AND MR. WARD WAS NOT
EXAMINED CONCERNING EITHER THE MEETING OR NOVEMBER 15, 1978, OR ANY
OTHER MEETING, DISCUSSION OR CONVERSATION HE HAD WITH MS. JAURIGUE
CONCERNING HER SICK LEAVE OR ANNUAL LEAVE REQUESTS.
/13/ ANNUAL LEAVE HAD PREVIOUSLY BEEN REQUESTED (8/30/78) AND
APPROVED BY MR. WARD (9/6/78) FOR 12/21/78 TO 1/15/79. MS. JAURIGUE HAD
RECEIVED APPROVED LEAVE AS FOLLOWS:
ANNUAL - 11/20/78 - 11/24/78
SICK - 11/27/78 - 12/8/78
ANNUAL - 12/21/78 - 1/15/79
THIS MEANT THAT MS. JAURIGUE HAD REQUESTED AND HAD RECEIVED APPROVAL OF
LEAVE FROM NOVEMBER 20, 1978, TO JANUARY 15, 1979, EXCEPT FOR THE PERIOD
OF DECEMBER 11-15 AND DECEMBER 18-20, 1978. CONTRARY TO RESPONDENT'S
ASSERTION, THERE WAS NOTHING CONFUSING ABOUT THE PERIODS COVERED AND NO
OVERLAP OF LEAVE DATES. MS. JAURIGUE WAS IN A USE OR LOSE STATUS AS TO
ANNUAL LEAVE AND HAD MORE THAN 550 HOURS OF ACCRUED SICK LEAVE.
IN ADDITION TO THE 128 HOURS OF ANNUAL LEAVE REQUESTED IN AUGUST AND
APPROVED IN SEPTEMBER, SHE HAD REQUESTED, AND MS. WEBB HAD APPROVED, AN
ADDITIONAL THREE WEEKS LEAVE (120) HOURS ON NOVEMBER 17, 1978, THE
REASONS FOR WHICH MS. JAURIGUE HAD FULLY DETAILED IN THE MEETING ON
NOVEMBER 15, 1978.
/14/ MS. JAURIGUE WAS NOT CERTAIN THAT SHE HAD SHOWN DR.
PONTARELLI'S STATEMENT TO MR. WARD ON NOVEMBER 15, ALTHOUGH THE RECORD
IS CLEAR THAT SHE HAD TOLD MR. WARD THAT HER DOCTOR HAD TOLD HER TO
UNDERGO EXTENSIVE TESTS; HOWEVER, SHE HAD SUBMITTED THE STATEMENT TO
MS. WEBB ON NOVEMBER 17, 1978 (TR. 492).
/15/ MR. WARD IS ENTITLED TO NO COMMENDATION FOR HIS REQUEST OF
JANUARY 24, 1979, SINCE, OBVIOUSLY, HIS ACTION HAD PREVENTED THE USE OF
ANNUAL LEAVE AS REQUESTED AND APPROVED ON SEPTEMBER 6, 1978. INDEED,
HIS STATEMENT THAT "DUE TO . . . ILLNESS . . . SHE WAS NOT ABLE TO TAKE
THAT LEAVE" IS NOT TRUE. MS. JAURIGUE HAD, IN FACT, SOUGHT TO USE HER
ANNUAL LEAVE AS SICK LEAVE.
/16/ MR. ARMBRUST'S ASSIGNMENT, BUT NOT HIS ITINERARY, WAS SHOWN ON
THE "WORK PLANS - JULY 1978" (G.C. EXH. 10); HOWEVER, IT WAS NOT SHOWN
THAT MR. WARD ACTUALLY RECEIVED THIS DOCUMENT.
/17/ ONLY ON ONE MATTER WAS ANY DOUBT CAST ON HER TESTIMONY AND THIS
CONCERNED HER LETTER TO DR. VELIMIROVIC, DATED JANUARY 15, 1979. HER
LETTER SPEAKS OF "WONDERFUL HOSPITALITY . . . DURING MY VISIT . . . THE
FIRST WEEK OF JANUARY." SHE TESTIFIED SHE MERELY PICKED UP FORMS ON
JANUARY 9 (ACTUAL VISIT TO WORLD HEALTH ORGANIZATION IN WASHINGTON, D.C.
ON JANUARY 23, 24 OR 25). RESPONDENT DID NOT PURSUE THE MATTER AND I
FULLY ACCEPT HER EXPLANATION.
/18/ FOR EXAMPLE, MR. BENSON'S MEMORANDUM OF JUNE 4, 1978, SHOWS
ACTION TAKEN TO DEAL WITH THE PITTSBURGH BACKLOG; MR. WARD TESTIFIED
THAT HE HAD NO KNOWLEDGE OF THE CASE LOAD IN PITTSBURGH AS OF JULY,
1978; YET HE MADE NO INQUIRY BEFORE MAKING HIS DECISION; AND MR.
ROBINSON TESTIFIED THAT, BECAUSE OF THE VARIOUS ACTIONS TAKEN, IN HIS
OPINION, THERE WAS NO NEED TO DETAIL A GS-11 SENIOR INVESTIGATOR TO
PITTSBURGH AS OF JULY, 1978. NOR WAS THERE ANY ECONOMY OF TRAVEL (SEE,
TR. 159-161).
/19/ SECTION 7116(A)(4) OF THE STATUTE IS MATERIALLY BROADER IN
DEFINING THE PROTECTION AFFORDED. SECTION 7116(A)(4) PROVIDES AS
FOLLOWS:
"(4) TO DISCIPLINE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE
BECAUSE THE EMPLOYEE HAS
FILED A COMPLAINT, AFFIDAVIT, OR PETITION, OR HAS GIVEN ANY
INFORMATION OR TESTIMONY UNDER
THIS CHAPTER;"
/20/ A RIGHT EXERCISED BY THE UNION ON TWO OCCASIONS AS SHOWN ON THE
RECORD IN THIS CASE.