[ v06 p74 ]
06:0074(22)CA
The decision of the Authority follows:
6 FLRA No. 22
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
Charging Party
Case No. 3-CA-435
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE
ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTIONS. THE JUDGE ALSO FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN
CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND RECOMMENDED THAT THOSE
PORTIONS OF THE COMPLAINT BE DISMISSED. THEREAFTER, THE GENERAL COUNSEL
FILED EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND ORDER AND A
SUPPORTING BRIEF.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS, EXCEPT AS MODIFIED HEREIN.
THE JUDGE CONCLUDED THAT THE RESPONDENT, ON OR ABOUT MARCH 1, 1979,
AND MAY 22, 1979, VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE
/1/ WHEN IT CHANGED JOB DUTIES AND WORKING CONDITIONS OF BARGAINING UNIT
MEMBERS BY UNILATERALLY REQUIRING CRANE OPERATORS IN THE BARGAINING UNIT
TO LUBRICATE MOBILE CRANES AND MAINTAIN LUBRICATION LOG BOOKS IN MOBILE
CRANES WITHOUT FIRST PROVIDING THE UNION AN OPPORTUNITY TO NEGOTIATE
CONCERNING PROCEDURES THE RESPONDENT WOULD OBSERVE IN IMPLEMENTING THE
CHANGE AND CONCERNING APPROPRIATE ARRANGEMENTS FOR BARGAINING UNIT
EMPLOYEES ADVERSELY AFFECTED BY THE CHANGE. NO EXCEPTIONS WERE FILED TO
THIS FINDING. THE GENERAL COUNSEL DID, HOWEVER, EXCEPT TO THE FAILURE
OF THE ADMINISTRATIVE LAW JUDGE TO ORDER A RESTORATION OF THE STATUS QUO
ANTE.
THE JUDGE ALSO CONCLUDED THAT THE RESPONDENT DID NOT VIOLATE SECTIONS
7116(A)(1) AND (8) /2/ OF THE STATUTE WHEN REPRESENTATIVES OF THE
RESPONDENT ALLEGEDLY HELD TWO FORMAL MEETINGS, ON OR ABOUT MARCH 1,
1979, WITH CRANE OPERATORS IN THE BARGAINING UNIT FOR THE PURPOSE OF
DISCUSSING THE CHANGE IN JOB DUTIES AND WORKING CONDITIONS, WITHOUT
PROVIDING THE UNION AN OPPORTUNITY TO BE REPRESENTED AT THOSE MEETINGS.
/3/ IN REACHING THIS CONCLUSION, THE JUDGE DETERMINED THAT THE UNION HAD
PRIOR NOTICE OF THE TWO MEETINGS AND WAS IN FACT REPRESENTED AT BOTH
MEETINGS. IN HIS EXCEPTIONS TO THIS FINDING, THE GENERAL COUNSEL
CONTENDS THAT THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT THE
CONCLUSION THAT THE UNION HAD PRIOR NOTICE AND THAT, IN FACT, THE UNION
HAD NO PRIOR NOTICE. AS TO THE JUDGE'S CONCLUSION THAT, IN ANY EVENT,
THE UNION WAS REPRESENTED AT BOTH MEETINGS, THE GENERAL COUNSEL ARGUES
THAT ALTHOUGH THE UNION'S CHIEF STEWARD AND A UNION SHOP STEWARD WERE
PRESENT AT THE MEETINGS OF THEIR RESPECTIVE SHIFTS, THEY WERE THERE IN
THEIR CAPACITY AS EMPLOYEES AND NOT AS UNION REPRESENTATIVES.
CONTRARY TO THE JUDGE, THE AUTHORITY IS OF THE OPINION THAT THE
RESPONDENT'S CONDUCT REGARDING THE TWO MEETINGS OF MARCH 1, 1979, DID
NOT COMPLY WITH THE REQUIREMENTS OF SECTION 7114(A)(2)(A). SECTION
7103(12) OF THE STATUTE DEFINES COLLECTIVE BARGAINING IN TERMS OF THE
"MUTUAL OBLIGATION" OF THE PARTIES TO CONSULT AND BARGAIN IN GOOD FAITH.
THUS, THE COLLECTIVE BARGAINING RELATIONSHIP REQUIRES THAT EACH PARTY
HAVE THE ABILITY TO FUNCTION AS AN EQUAL PARTNER. IT FOLLOWS THAT EACH
PARTY SHOULD DEAL WITH THE OTHER DIRECTLY AND IN A DIGNIFIED MANNER.
SEE UNITED STATES AIR FORCE, AIR FORCE LOGISTICS COMMAND AND LOCAL 221,
AFGE, AFL-CIO, 4 FLRA NO. 70(1980). THIS THE RESPONDENT DID NOT DO.
MORE SPECIFICALLY, SECTION 7114(A)(2)(A) REQUIRES THAT A UNION "BE
GIVEN THE OPPORTUNITY" TO BE REPRESENTED DURING FORMAL DISCUSSIONS
INVOLVING CONDITIONS OF EMPLOYMENT. THIS CLEARLY CONTEMPLATES PRIOR
NOTICE TO THE UNION SO THAT, INTER ALIA, THE UNION WILL HAVE AN
OPPORTUNITY TO SELECT REPRESENTATIVES OF ITS OWN CHOOSING TO BE PRESENT.
THERE IS NO EVIDENCE IN THIS CASE THAT THE RESPONDENT IN ANY WAY GAVE
SUCH NOTICE TO THE UNION OF THE FORMAL MEETINGS OF MARCH 1, 1979. THE
MERE FACT THAT EMPLOYEES WHO WERE PRESENT AT THESE REQUIRED MEETINGS
INVOLVING WORKING CONDITIONS ALSO HAPPENED TO BE UNION STEWARDS DOES NOT
LEAD TO A CONTRARY CONCLUSION, FOR THEY CLEARLY WERE NOT IN ATTENDANCE
AS UNION REPRESENTATIVES. SEE AIR FORCE LOGISTICS COMMAND, SUPRA.
ACCORDINGLY, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTIONS
7116(A)(1) AND (8) OF THE STATUTE BECAUSE OF ITS FAILURE TO COMPLY WITH
SECTION 7114(A)(2)(A).
FURTHER, THE AUTHORITY FINDS MERIT IN THE GENERAL COUNSEL'S EXCEPTION
TO THE FAILURE OF THE JUDGE TO INCLUDE IN HIS RECOMMENDED ORDER A
PROVISION REQUIRING A RETURN TO THE STATUS QUO ANTE. THE JUDGE
CONCLUDED THAT RESPONDENT FAILED TO NEGOTIATE CONCERNING THE PROCEDURES
WHICH RESPONDENT WOULD OBSERVE IN IMPLEMENTING THE CHANGE AND
CONCERNING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY SUCH
CHANGE. /4/ IN THIS REGARD, HE FOUND THAT THE UNION OBJECTED TO THE
FAILURE OF THE RESPONDENT TO PROVIDE THE UNION WITH AN OPPORTUNITY TO
NEGOTIATE CONCERNING THE IMPACT OF THE CHANGE. A MEETING WAS CONVENED
THEREAFTER BETWEEN REPRESENTATIVES OF THE UNION AND RESPONDENT.
RESPONDENT'S SPOKESMAN ATTENDED, BUT WITH NO INTENTION TO ENGAGE IN
BARGAINING AND BARGAINING DID NOT OCCUR. THE UNION WAS PERMITTED ONLY
TO OUTLINE ITS CONCERNS WHICH INCLUDED THE SAFETY FACTORS INVOLVED. THE
AUTHORITY IS OF THE OPINION THAT A RETURN TO THE STATUS QUO ANTE IS
APPROPRIATE IN THE CIRCUMSTANCES OF THIS CASE, WHEREIN THE RESPONDENT
REFUSED TO NEGOTIATE PROCEDURES AND APPROPRIATE ARRANGEMENTS
CONCERNING,
INTER ALIA, SAFETY FACTORS. MOREOVER, THERE IS NOTHING IN THE RECORD TO
INDICATE THAT A STATUS QUO ANTE REMEDY WOULD CREATE A SERIOUS DISRUPTION
OF THE RESPONDENT'S OPERATIONS. SEE SAN ANTONIO AIR LOGISTICS CENTER
AND AFGE, AFL-CIO, LOCAL 1617, 5 FLRA NO. 22(1981).
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) CHANGING JOB DUTIES AND WORKING CONDITIONS OF BARGAINING UNIT
EMPLOYEES, AND REQUIRING MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES
RELATING TO THE LUBRICATION OF MOBILE CRANES AND TO THE MAINTENANCE OF
LUBRICATION LOG RECORDS PERTAINING TO MOBILE CRANES, WITHOUT FIRST
NOTIFYING TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL OF
ITS INTENTION TO REQUIRE THE PERFORMANCE OF SUCH JOB DUTIES, AND
AFFORDING IT THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS ABOUT THE PROCEDURES THAT MANAGEMENT WILL OBSERVE IN
REQUIRING BARGAINING UNIT EMPLOYEES TO PERFORM SUCH JOB DUTIES AND
CONCERNING THE IMPACT SUCH CHANGES WILL HAVE ON ADVERSELY AFFECTED
EMPLOYEES.
(B) HOLDING OR CONDUCTING FORMAL DISCUSSIONS WITH BARGAINING UNIT
EMPLOYEES WITHOUT FIRST PROVIDING, BY APPROPRIATE ADVANCE NOTICE, THE
EXCLUSIVE BARGAINING REPRESENTATIVE, TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL, AN OPPORTUNITY TO BE REPRESENTED AT SUCH
FORMAL DISCUSSIONS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RESCIND THE ORAL INSTRUCTIONS AND DEPARTMENTAL INSTRUCTIONS THAT
WERE ISSUED ON MARCH 1, 1979 AND MAY 22, 1979, RESPECTIVELY, THAT
REQUIRED MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES RELATING TO THE
LUBRICATION OF MOBILE CRANES AND TO THE MAINTENANCE OF LUBRICATION LOG
RECORDS PERTAINING TO MOBILE CRANES.
(B) UPON REQUEST, NEGOTIATE WITH THE TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING PROCEDURES TO BE USED IN REQUIRING MOBILE CRANE
OPERATORS TO PERFORM JOB DUTIES RELATING TO THE LUBRICATION OF MOBILE
CRANES AND MAINTENANCE OF LUBRICATION LOG RECORDS PERTAINING TO MOBILE
CRANES AND CONCERNING THE IMPACT OF OF SUCH CHANGES ON ADVERSELY
AFFECTED EMPLOYEES IN THE BARGAINING UNIT.
(C) POST AT ITS FACILITIES AT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY
SHALL BE SIGNED BY THE COMMANDER, NORFOLK NAVAL SHIPYARD, AND SHALL BE
POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES
CUSTOMARILY ARE POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT
SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR OF REGION III, 1133 15TH
STREET, N.W., ROOM 300, WASHINGTON, D.C. 20005 IN WRITING, WITHIN 30
DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY WITH THIS ORDER.
ISSUED, WASHINGTON, D.C., JUNE 17, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 CHANGE JOB DUTIES AND WORKING CONDITIONS OF BARGAINING
UNIT EMPLOYEES OR REQUIRE MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES
RELATING TO THE LUBRICATION OF MOBILE CRANES AND TO THE MAINTENANCE OF
LUBRICATION LOG RECORDS PERTAINING TO MOBILE CRANES, WITHOUT FIRST
NOTIFYING TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL OF
OUR INTENTION TO REQUIRE THE PERFORMANCE OF SUCH JOB DUTIES, AND
AFFORDING IT THE OPPORTUNITY TO NEGOTIATE TO THE EXTENT CONSONANT WITH
LAW AND REGULATIONS ABOUT THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE
IN REQUIRING BARGAINING UNIT EMPLOYEES TO PERFORM SUCH DUTIES AND
CONCERNING THE IMPACT SUCH CHANGES WILL HAVE ON ADVERSELY AFFECTED
EMPLOYEES.
WE WILL NOT HOLD OR CONDUCT FORMAL DISCUSSIONS WITH BARGAINING UNIT
EMPLOYEES WITHOUT FIRST PROVIDING, BY APPROPRIATE ADVANCE NOTICE, THE
EXCLUSIVE BARGAINING REPRESENTATIVE, TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL, AN OPPORTUNITY TO BE REPRESENTED AT SUCH
FORMAL DISCUSSIONS.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE ORAL INSTRUCTIONS AND DEPARTMENTAL INSTRUCTIONS
THAT WERE ISSUED ON MARCH 1, 1979 AND MAY 22, 1979, RESPECTIVELY, AND
THAT REQUIRED MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES RELATING TO
THE LUBRICATION OF MOBILE CRANES AND TO THE MAINTENANCE OF LUBRICATION
LOG RECORDS PERTAINING TO MOBILE CRANES.
WE WILL, UPON REQUEST, NEGOTIATE WITH THE TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, CONCERNING PROCEDURES TO BE USED IN REQUIRING MOBILE CRANE
OPERATORS TO PERFORM JOB DUTIES RELATING TO THE LUBRICATION OF MOBILE
CRANES AND TO THE MAINTENANCE OF LUBRICATION LOG RECORDS PERTAINING TO
MOBILE CRANES AND CONCERNING THE IMPACT OF SUCH CHANGES ON ADVERSELY
AFFECTED EMPLOYEES IN THE BARGAINING UNIT.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C. 20005 AND WHOSE
TELEPHONE NUMBER IS (202) 653-8452
-------------------- ALJ DECISION FOLLOWS --------------------
WALTER B. BAGBY, ESQUIRE
FOR THE RESPONDENT
CLARA A. WILLIAMSON, ESQUIRE
BRUCE ROSENSTEIN, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE AS AN UNFAIR LABOR PRACTICE PROCEEDING UNDER THE
PROVISIONS OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 92
STAT. 1191, 5 U.S.C. 7101, ET SEQ., (HEREINAFTER CALLED "THE STATUTE")
AND THE RULES AND REGULATIONS ISSUED THEREUNDER.
ON FEBRUARY 25, 1980, AN UNFAIR LABOR PRACTICE COMPLAINT WAS FILED BY
THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY,
WASHINGTON, D.C. AGAINST THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA (RESPONDENT), ON BEHALF OF THE TIDEWATER VIRGINIA FEDERAL METAL
TRADES COUNCIL (COUNCIL OR UNION), THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF AN APPROPRIATE UNIT OF CIVILIAN EMPLOYEES AT THE
NORFOLK NAVAL SHIPYARD. THE COMPLAINT, AS AMENDED AT THE HEARING,
ALLEGED THAT THE RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5) AND (8) OF
THE STATUTE. VIOLATIONS OF SECTION 7116(A)(1) AND (5) WERE PREDICATED
UPON ALLEGATIONS THAT THE RESPONDENT CHANGED JOB DUTIES AND WORKING
CONDITIONS OF BARGAINING UNIT MEMBERS ON OR ABOUT MARCH 1, 1979 AND MAY
22, 1979, BY UNILATERALLY REQUIRING CRANE OPERATORS IN THE BARGAINING
UNIT TO LUBRICATE MOBILE CRANES, AND MAINTAIN LUBRICATION LOG BOOKS IN
MOBILE CRANES, WITHOUT FIRST PROVIDING THE UNION AN OPPORTUNITY TO
NEGOTIATE CONCERNING PROCEDURES WHICH RESPONDENT WOULD OBSERVE IN
IMPLEMENTING THE CHANGE, AND CONCERNING APPROPRIATE ARRANGEMENTS FOR
EMPLOYEES ADVERSELY AFFECTED BY THE CHANGE.
VIOLATIONS OF SECTIONS 7116(A)(1) AND (8) WERE PREDICATED UPON
ALLEGATIONS THAT REPRESENTATIVES OF THE RESPONDENT, ON OR ABOUT MARCH 1,
1979, HELD FORMAL MEETINGS WITH CRANE OPERATORS IN THE BARGAINING UNIT
FOR THE PURPOSE OF DISCUSSING THE JOB DUTIES MENTIONED, WITHOUT
PROVIDING THE UNION WITH NOTICE OF THE MEETINGS, AND WITHOUT AFFORDING
THE UNION AN OPPORTUNITY TO BE REPRESENTED AS PROVIDED IN SECTION
7114(A)(2)(A) OF THE STATUTE. /5/
COUNSEL FOR THE RESPONDENT ARGUES THAT THE JOB DUTIES IN QUESTION
WERE ASSIGNED TO ALL CRANE OPERATORS, THAT THESE DUTIES HAVE BEEN
PERFORMED BY CRANE OPERATORS FOR AT LEAST SIX YEARS, THAT ORAL
INSTRUCTIONS AND FORMAL INSTRUCTIONS RELATING TO THE SUBJECT WERE MERELY
REAFFIRMATIONS OF EXISTING WORK PRACTICES, AND THAT ALTHOUGH THE UNION
WAS AWARE OF THE PRACTICE, THE UNION NEVER REQUESTED THAT THE RESPONDENT
NEGOTIATE CONCERNING THE REQUIREMENT THAT SUCH JOB DUTIES BE PERFORMED
BY CRANE OPERATORS EMPLOYED BY THE RESPONDENT.
THE RESPONDENT AND THE GENERAL COUNSEL, FEDERAL LABOR RELATIONS
AUTHORITY, WERE REPRESENTED BY COUNSEL AND WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND EXAMINE AND
CROSS-EXAMINE WITNESSES. POST-HEARING BRIEFS WERE RECEIVED FROM COUNSEL
REPRESENTING THE GENERAL COUNSEL AND COUNSEL REPRESENTING THE
RESPONDENT. THESE HAVE BEEN DULY CONSIDERED. BASED UPON THE ENTIRE
RECORD HEREIN, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE ADDUCED AT THE
HEARING, /6/ AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS:
GENERAL BACKGROUND
THE RECORD DISCLOSED THAT THE RESPONDENT'S FACILITY INCLUDES A PUBLIC
WORKS DEPARTMENT, WHICH IN TURN INCLUDES A SHOP 02 CONSISTING OF A
TRANSPORTATION OR OPERATIONS SECTION, AND A MAINTENANCE SECTION. AMONG
OTHER DUTIES, THESE SECTIONS HAD RESPONSIBILITY FOR CRANE OPERATIONS AT
THE NORFOLK NAVAL SHIPYARD. SHOP 02 IS SUPERVISED BY A SHOP HEAD, WHO
IN TURN DIRECTS OPERATIONS THROUGH A GENERAL FOREMAN AND A NUMBER OF
CRANE OPERATOR FOREMEN WHO SUPERVISE APPROXIMATELY 103 CRANE OPERATORS.
AS OF MARCH 1, 1979, JOHN V. LUCAS WAS A CRANE OPERATOR FOREMAN IN SHOP
02; AND CHARLES CRONIN, ALSO A CRANE OPERATOR FOREMAN, WAS TEMPORARILY
ACTING AS THE GENERAL FOREMAN OF SHOP 02.
CRANE OPERATORS HEREIN INVOLVED WERE CLASSIFIED AT WAGE GRADE 11 AND
12 LEVELS. THE RECORD DISCLOSED THAT THE JOB DESCRIPTIONS PERTAINING TO
THE WAGE GRADE 11 LEVEL IMPOSED NO DUTY TO LUBRICATE (R. EXH. 6, G.C.
EXH. 10, TR. 181-182, 217, 233). /7/ FOR THE MOST PART MOBILE CRANE
OPERATORS WERE ASSIGNED A WAGE 11 GRADE CLASSIFICATION (TR. 181-182,
183).
COMMENCING IN THE EARLY 1960'S, THE RESPONDENT BEGAN TO ELIMINATE
PERSONNEL ASSIGNED TO PERFORM LUBRICATION DUTIES ON CRANES (TR. 178).
IT WAS ESTABLISHED THAT EMPLOYEES, OTHER THAN CRANE OPERATORS WERE AT
ONE TIME ASSIGNED TO EACH CRANE TO PERFORM LUBRICATION SERVICES, BUT
THAT ONLY TWO OR THREE INDIVIDUALS WERE PERFORMING SUCH LUBRICATION
DUTIES AS OF THE DATE OF THE HEARING (TR. 178). IT WAS THE INTENTION OF
THE RESPONDENT TO HAVE CRANE OPERATORS EVENTUALLY ASSUME ALL OF SUCH
DUTIES (TR. 179).
BY MEMORANDUM DATED DECEMBER 7, 1978, ADDRESSED TO THE HEADS OF THE
OPERATIONS AND MAINTENANCE SECTIONS, W. R. SKITTLETHORP, THEN ACTING AS
HEAD OF SHOP 02, SET FORTH THE FOLLOWING POLICY:
MOBILE CRANES ARE LUBRICATED AND SERVICED BY MAINTENANCE PERSONNEL
WHEN
SCHEDULED. HOWEVER, SOME COMPONENTS REQUIRE SERVICES MORE
FREQUENTLY. TO PERFORM THIS
SERVICE, A LUBRICATION CHART WILL BE POSTED IN THE CAB, DESIGNATING
AREAS TO BE LUBED AND THE
FREQUENCY. THE OPERATIONS FOREMAN WILL BE RESPONSIBLE FOR
INSTRUCTING ASSIGNED OPERATORS TO
PERFORM THIS FUNCTION AS SPECIFIED. A GREASE GUN AND LUBRICANT WILL
BE STORED ON THE
CRANE. CODE 424 WILL CONDUCT RANDOM AUDITS FOR COMPLIANCE TO (SIC)
THIS INSTRUCTION.
THIS INTERNAL MANAGEMENT MEMORANDUM WOULD NOT NORMALLY HAVE BEEN
TRANSMITTED TO THE UNION (TR. 163), AND THERE IS NO INDICATION IN THE
RECORD THAT IT WAS DISTRIBUTED TO THE UNION. FOLLOWING ISSUANCE OF THIS
MEMORANDUM, SHOP 02 MANAGEMENT OFFICIALS DISCUSSED THE FUTURE PLACEMENT
OF LUBRICATION LOG BOOKS AND LUBRICATION CHARTS ON ALL MOBILE CRANES
(TR. 290). THE POLICY, ALTHOUGH ARTICULATED AT THE MANAGEMENT LEVEL,
WAS NOT THEN IMPLEMENTED.
THE MARCH 1, 1979 MEETINGS
ON MARCH 1, 1979, JOHN V. LUCAS, CRANE OPERATOR FOREMAN IN CHARGE OF
THE DAY SHIFT CONSISTING OF 14 TO 15 CRANE OPERATORS, ADVISED CRANE
OPERATORS UNDER HIS SUPERVISION THAT THEIR DUTIES HENCEFORTH WOULD
INCLUDE THE LUBRICATION OF MOBILE CRANES (TR. 175). THE PRONOUNCEMENT
OCCURRED AT THE COMMENCEMENT OF THE SHIFT. IT WAS BROUGHT OUT THAT
CRANE OPERATOR FOREMEN OR SUPERVISORS HAD A POLICY OR PRACTICE OF
MEETING WITH EMPLOYEES PRIOR TO SIGNING CRANE OPERATORS OUT ON A SHIFT.
THESE MEETINGS WERE DESIGNED TO INFORM CRANE OPERATORS OF IMPORTANT
DEVELOPMENTS (TR. 55). THE MEETING CONVENED BY LUCAS WAS ATTENDED BY
OTIS ALLISON, A MOBILE CRANE OPERATOR, WHO AT THE TIME OF THE MEETING
WAS SERVING AS THE UNION'S CHIEF STEWARD FOR SHOP 02. HE HAD HELD THE
POSITION FOR A NUMBER OF YEARS PRIOR TO MARCH 1, 1979 (TR. 54). /8/
A SIMILAR MEETING OCCURRED ON OR ABOUT MARCH 1, 1979 IN CONNECTION
WITH ANOTHER GROUP OF CRANE OPERATORS UNDER THE SUPERVISION OF CHARLES
CRONIN, A CRANE OPERATOR FOREMAN, THEN SERVING AS ACTING GENERAL FOREMAN
OF SHOP 02. CRONIN ALSO INFORMED A GROUP OF 14 TO 15 CRANE OPERATORS
THAT THEY WOULD, IN THE NEAR FUTURE, START GREASING MOBILE CRANES (TR.
361-362). THIS MEETING WAS ATTENDED BY JAMES CASON, A CRANE OPERATOR IN
SHOP 02, WHO PROVIDED CLEAR AND UNEQUIVOCAL TESTIMONY RELATING TO
CRONIN'S STATEMENT. /9/ CASON WAS ACTING AS A UNION SHOP STEWARD IN
SHOP 02 AT THE TIME THAT HE ATTENDED THE MEETING IN QUESTION. HE TOOK
NOTE OF THE CHANGE ANNOUNCED AND DISCUSSED IT WITH CHIEF STEWARD OTIS
ALLISON THREE OR FOUR DAYS LATER (TR. 366). /10/
LUBRICATION CHARTS AND LOGS PLACED IN MOBILE CRANES
FOLLOWING THE MARCH 1, 1979 MEETINGS DESCRIBED, LUBRICATION CHARTS
AND LUBRICATION LOG BOOKS WERE PLACED IN MOBILE CRANES. LUBRICATION
CHARTS WERE PLACED TO PROVIDE LUBRICATING INSTRUCTIONS TO CRANE
OPERATORS (TR. 328). LUBRICATION LOG BOOKS WERE PLACED IN MOBILE CRANES
TO PROVIDE A DETAILED RECORD OF LUBRICATION REQUIRED AND PERFORMED (TR.
162-163, 324, 334). ALTHOUGH THE TESTIMONY OF CHARLES CRONIN WAS VAGUE
AND INDEFINITE AT MANY POINTS INSOFAR AS IT RELATED TO THE PLACEMENT OF
LUBRICATION CHARTS AND LOG BOOKS ON MOBILE CRANES; HIS TESTIMONY DID
ESTABLISH THAT ON OR ABOUT MARCH 1, 1979, CRONIN HAD LUBRICATION CHARTS
AND LUBRICATION LOG BOOKS PLACED IN EVERY PIECE OF MOBILE EQUIPMENT IN
THE NORFOLK NAVAL SHIPYARD, OTHER THAN SPECIAL PURPOSE CRANES (TR.
292-293, 303). /11/ HE ALSO ACKNOWLEDGED THAT ADMINISTRATIVE
PREPARATIONS RELATING TO THE DESIGN OF THE LUBRICATION LOG BOOK WERE IN
PROCESS PRIOR TO MARCH 1, 1979, AND THAT THIS PROCESS COMMENCED IN
JANUARY OF 1979 (TR. 314-314). AFTER MARCH 1, 1979, CHARLES CRONIN,
ACTING AS SHOP 02 GENERAL FOREMAN, GAVE INSTRUCTIONS TO CRANE OPERATOR
SUPERVISORS THAT MOBILE CRANE OPERATORS SHOULD UTILIZE LUBRICATION LOG
BOOKS TO MAKE APPROPRIATE ENTRIES (TR. 294).
PRIOR TO MARCH 1, 1979, AND THEREAFTER, A "CRANE OPERATOR'S LOG BOOK"
OR "CRANE LOG" WAS UTILIZED ON ALL CRANES FOR THE PURPOSE OF PROVIDING A
GENERALIZED RECORDING OF SIGNIFICANT EVENTS RELATING TO THE OPERATION OF
THE CRANE (TR. 109, 162(. THIS LOG WAS USED TO RECORD THE LENGTH OF
TIME THE CRANE WAS UTILIZED AND THE FACT OF COMPLETION OF AN "OPERATOR'S
DAILY CHECK LIST" (ODCL), (R. EXH. 2, G.C. EXH. 3, TR. 113-114, 273-274,
289).
THE ODCL HAD BEEN IN USE FOR A NUMBER OF YEARS (TR. 272-273, 322).
IT WAS NOT A RECORDING OF SPECIFIC LUBRICATION SERVICES PERFORMED (TR.
322). THE DOCUMENT WAS RECEIVED BY CRANE OPERATORS FROM CRANE OPERATOR
SUPERVISORS PRIOR TO THE COMMENCEMENT OF EACH SHIFT, AND WAS THEN
UTILIZED TO RECORD THE RESULT OF A COMPLETE "VISUAL" INSPECTION OF THE
CRANE TO DETERMINE WHETHER THE CRANE WAS OPERABLE (TR. 80-81, 100, 108).
COMPLETED ODCL'S WERE RETURNED TO CRANE OPERATOR SUPERVISORS BY CRANE
OPERATORS AT THE END OF EACH SHIFT (TR. 101-102, 108, 324). SUPERVISORS
SIGNED THEM AND FORWARDED THEM TO A "QUALITY ASSURANCE" SECTION, WHICH
IN TURN, WAS CHARGED WITH RESPONSIBILITY FOR DETERMINING LUBRICATION
NEEDS (TR. 324-325). "QUALITY ASSURANCE" KEPT APPRISED OF CRANE
OPERATIONS, AND WHEN APPROPRIATE, ISSUED INSTRUCTIONS TO BRING CRANES IN
FOR MAINTENANCE (TR. 325). THE ODCL INCLUDED A REFERENCE TO
"LUBRICATION" AS ONE OF THE MANY ITEMS TO BE CHECKED VISUALLY BY CRANE
OPERATORS; HOWEVER, THE CRANE OPERATOR WAS MERELY REQUIRED TO VISUALLY
INSPECT, AND THEN INDICATE ON THE ODCL, BY A CHECK MARK, WHETHER
"LUBRICATION" WAS SATISFACTORY OR UNSATISFACTORY (TR. 80-81, 310, 322).
THE RECORD PROVIDED NO BASIS FOR CONCLUDING THAT EITHER THE CRANE LOG OF
ODCL IMPOSED A LUBRICATION REQUIREMENT OR LUBRICATION RECORD KEEPING
REQUIREMENT ON MOBILE CRANE OPERATORS.
PUBLIC WORKS INSTRUCTION 11200.3B DATED MAY 22, 1979
ON MAY 22, 1979, THE HEAD OF RESPONDENT'S PUBLIC WORKS DEPARTMENT
ISSUED AN INSTRUCTION FORMALIZING THE ORAL INSTRUCTIONS PREVIOUSLY
CONVEYED TO A NUMBER OF MOBILE CRANE OPERATORS ON OR ABOUT MARCH 1,
1979, (G.C. EXH. 2). ITEM 15 OF "ENCLOSURE (1)," ATTACHED TO THE
INSTRUCTION, REFLECTS THAT MOBILE CRANE OPERATORS WOULD HAVE THE
FOLLOWING DUTIES AND RESPONSIBILITIES:
15. LUBRICATION. ENSURE THAT THE MAJOR COMPONENTS OF THE CRANE ARE
LUBRICATED (TO BE
ACCOMPLISHED BY VISUAL OBSERVATION AND SOUND OF COMPONENTS).
VISUALLY OBSERVE ALL BRAKE AND
CLUTCH FRICTIONS AND DRUMS FOR EXCESSIVE LUBRICANT (WHERE
ACCESSIBLE-- NO DISASSEMBLY
REQUIRED). MOBILE CRANES ONLY-- OPERATORS WILL LUBRICATE THE CRANE
UPPER (PORTIONS OF THE
CRANE ABOVE THE CARRIER TO INCLUDE CRANE MACHINERY, ROTATING SYSTEM,
BOOM, A FRAME AND HOIST
BLOCK) IN ACCORDANCE WITH THE OPERATOR'S MANUAL AND/OR OTHER SPECIAL
INSTRUCTIONS . . .
PUBLIC WORKS INSTRUCTION 11200.3A, DATED JULY 10, 1978 (G.C. EXH.
3), THE BASIS FOR POLICY IN EFFECT IMMEDIATELY PRIOR TO THE ISSUANCE OF
THE MAY 22, 1979 INSTRUCTION, WAS CANCELED BY THE MAY 22, 1979
INSTRUCTION. THE EARLIER JULY 10, 1978 INSTRUCTION REFLECTED DIFFERENT
JOB REQUIREMENTS. IT DESCRIBED CRANE OPERATOR LUBRICATION RELATED
DUTIES IN THE FOLLOWING SUCCINCT TERMS:
15. LUBRICATION. ENSURE THAT THE MAJOR COMPONENTS OF THE CRANE ARE
LUBRICATED. CHECK BY
VISUAL OBSERVATION AND SOUND OF COMPONENT. /12/
IT IS CLEAR FROM THE RECORD THAT THE MAY 22, 1979 INSTRUCTION
SPECIFICALLY IMPOSED A LUBRICATION REQUIREMENT ON MOBILE CRANE
OPERATORS, WHEREAS THE EARLIER JULY 10, 1978 INSTRUCTION DID NOT. THIS
DIFFERENCE WAS ACKNOWLEDGED BY CHARLES CRONIN (TR. 308).
PRIOR TO THE MARCH 1, 1979 MEETINGS AND PRIOR TO THE ISSUANCE OF THE
MAY 22, 1979 INSTRUCTION, RESPONDENT'S REPRESENTATIVES HAD NO DISCUSSION
WITH THE UNION CONCERNING THE REQUIREMENT THAT MOBILE CRANE OPERATORS
LUBRICATE MOBILE CRANES AND MAINTAIN DETAILED LUBRICATION LOG BOOKS.
REPRESENTATIVES OF RESPONDENT AND UNION MEET ON JUNE 27, 1979
COMPLAINTS FROM CRANE OPERATORS CONCERNING THE NEW DUTIES WERE
CONVEYED TO CHIEF STEWARD ALLISON DURING THE LATTER PART OF MAY AND THE
BEGINNING OF JUNE 1979 (TR. 59). ON OR ABOUT JUNE 1, 1979, ALLISON
DISCUSSED THE MAY 22, 1979 INSTRUCTION WITH LOUIS NARDOZI, A MEMBER OF
THE UNION'S CONFERENCE COMMITTEE, A GROUP DESIGNATED TO MEET
PERIODICALLY WITH MANAGEMENT OFFICIALS TO RESOLVE LABOR DISPUTES (TR.
21, 23-24, 58-59), AND SHORTLY BEFORE JUNE 12, 1979, ALLISON ALSO
DISCUSSED THE ISSUES TELEPHONICALLY WITH WILLIAM POTTS, A REPRESENTATIVE
OF THE RESPONDENT ASSIGNED TO THE RESPONDENT'S EMPLOYEE RELATIONS
DIVISION. HE WAS ADVISED BY POTTS THAT THE QUESTIONS INVOLVED WERE NOT
NEGOTIABLE (TR. 215-216).
BY LETTER DATED JUNE 12, 1979, THE UNION OBJECTED TO THE FAILURE OF
THE RESPONDENT TO PROVIDE THE UNION WITH AN OPPORTUNITY TO NEGOTIATE
CONCERNING THE IMPACT OF THE MAY 22, 1979 INSTRUCTION (G.C. EXH. 4).
ARRANGEMENTS WERE THEREAFTER MADE FOR REPRESENTATIVES OF THE UNION AND
THE RESPONDENT TO MEET ON JUNE 27, 1979 (TR. 37). DURING A TELEPHONE
CALL PRIOR TO THE MEETING WILLIAM POTTS ADVISED LOUIS NARDOZI THAT THE
JUNE 27, 1979 MEETING WOULD NOT BE CONVENED FOR THE PURPOSE OF
NEGOTIATING (TR. 224).
ON JUNE 27, 1979, A MEETING WAS CONVENED BY THE PARTIES. LOUIS
NARDOZI AND OTIS ALLISON ACTED AS SPOKESMEN FOR THE UNION AND WILLIAM
POTTS REPRESENTED THE RESPONDENT. IT WAS ADMITTED BY WILLIAM POTTS THAT
THE RESPONDENT'S REPRESENTATIVES MET WITH NO INTENTION OF BARGAINING
WITH THE UNION (TR. 197). THE MEETING WAS PERCEIVED BY THE RESPONDENT
AS AN "INFORMATIONAL MEETING" (TR. 197), AND A MEETING OUT OF COURTESY
(TR. 29). BARGAINING DID NOT TAKE PLACE (TR. 189, 221-222). HOWEVER,
THE MAY 22, 1979 INSTRUCTION WAS BRIEFLY DISCUSSED AND THE UNION WAS
ALLOWED TO OUTLINE THEIR CONCERNS REGARDING THE IMPOSITION OF
LUBRICATION DUTIES ON MOBILE CRANE OPERATORS. REFERENCE WAS MADE TO
SAFETY FACTORS RELATING TO CLIMBING REQUIREMENTS, THE AGE OF CRANE
OPERATORS, THE NEED FOR PROTECTIVE CLOTHING, AND THE FACT THAT "DIRTY
WORK" WAS INVOLVED. THE RESPONDENT FELT NO OBLIGATION TO GIVE SERIOUS
CONSIDERATION TO THESE ELEMENTS OF CONCERN, BECAUSE OF AN INITIAL
DECISION THAT NO CHANGE IN WORKING CONDITIONS HAD BEEN INTRODUCED (TR.
28), THAT THERE WAS NO IMPACT ON WORKING CONDITIONS (TR. 193-194, 220,
237-238), AND THAT CRANE OPERATOR JOB DESCRIPTIONS, AS CONSTRUED BY
RESPONDENT, INCLUDED AUTHORITY FOR ASSIGNING SUCH DUTIES (TR. 194-195).
POTTS ACKNOWLEDGED THAT MANPOWER CEILINGS IMPOSED UPON THE RESPONDENT
COMPELLED A CHOICE BETWEEN RETAINING SERVICE PERSONNEL OR CRANE
OPERATORS (TR. 227). POTTS DID AGREE TO CHECK WITH HIGHER AUTHORITY
REGARDING THE MATTER (TR. 29, 46). THE MEETING LASTED APPROXIMATELY
FORTY-FIVE TO SIXTY MINUTES (TR. 41, 224). AFTER THE MEETING POTTS
PHONED NARDOZI TO VERIFY THAT THE ISSUE COULD NOT BE RESOLVED, AND THAT
THE MAY 22, 1979 INSTRUCTION WOULD STAND (TR. 31, 226). /13/
LUBRICATION PRACTICE BEFORE AND AFTER MARCH 1, 1979
THE TESTIMONY OF OTIS ALLISON AND JAMES CASON PROVIDED DIRECT
EVIDENCE OF THE FACT THAT MOBILE CRANE OPERATORS WERE NOT REQUIRED TO
LUBRICATE MOBILE CRANES OR MAINTAIN LUBRICATION RECORDS PRIOR TO MARCH
1, 1979. THIS TESTIMONY IS CREDITED RATHER THAN THE TESTIMONY OF
RESPONDENT'S WITNESSES IN OPPOSITION. /14/ ON THESE FACTUAL ISSUES IT
WAS NOTED THAT ALTHOUGH THE TESTIMONY OF RESPONDENT'S WITNESSES
CONTRADICTED ALLISON AND CASON, THE FORMER, IN LARGE MEASURE TENDED TO
BE CORROBORATIVE OF ALLISON AND CASON IN KEY AREAS OF INTEREST. IT WAS
ALSO OBSERVED THAT THE TESTIMONY OF RESPONDENT'S WITNESSES WAS VAGUE AND
INDEFINITE AT A NUMBER OF CRITICAL POINTS.
PRIOR TO MARCH 1, 1979, MOBILE CRANE OPERATORS NOTIFIED THEIR
SUPERVISORS OR MAINTENANCE SHOP PERSONNEL WHEN THEY NOTICED THAT MOBILE
CRANES NEEDED LUBRICATION (TR. 55-56, 85-86). SERVICE EQUIPMENT
EMPLOYEES PERFORMED SUCH SERVICES RATHER THAN MOBILE CRANE OPERATORS,
AND THERE WERE FOUR OR FIVE SERVICE EQUIPMENT EMPLOYEES AVAILABLE IN
SHOP 02 TO PERFORM SUCH SERVICE (TR. 56, 63, 362). MOBILE CRANE
OPERATORS WERE NOT REQUIRED TO PERFORM LUBRICATION PRIOR TO MARCH 1,
1979 (TR. 72, 362). IT WAS ALSO ESTABLISHED THAT PRIOR TO MARCH 1, 1979
LUBRICATION LOG BOOKS WERE NOT KEPT IN MOBILE CRANES (TR. 363).
AFTER MARCH 1, 1979, THE JOB DUTIES OF MOBILE CRANE OPERATORS CHANGED
AND THEY WERE REQUIRED TO LUBRICATE MOBILE CRANES AND TO MAINTAIN
LUBRICATION LOG BOOKS. THESE DUTIES WERE PHASED IN GRADUALLY OVER A
PERIOD (TR. 56). GREASE GUNS WERE INSTALLED ON MOBILE CRANES AND
LUBRICATION CHARTS AND LUBRICATION LOG BOOKS WERE PLACED FOR USE (TR.
56-57). AFTER MARCH 1, 1979 MOBILE CRANE OPERATORS WERE TOLD TO PERFORM
LUBRICATION DUTIES AND WERE CRITICIZED FOR NOT PROPERLY PERFORMING SUCH
DUTIES (TR. 67).
THE TESTIMONY OF LEWIS RARY, DEPARTMENT OF PUBLIC WORKS
SUPERINTENDENT, WITH JURISDICTION OVER SHOP 02 AND OTHER SHOPS (TR.
140), ESTABLISHED THAT HE DID NOT OBSERVE LUBRICATION LOG BOOKS WITH
ENTRIES BY MOBILE CRANE OPERATORS, PRIOR TO MARCH 1, 1979 (TR. 181).
CHARLES CRONIN ESTABLISHED THAT MOBILE CRANE OPERATORS WERE NOT REQUIRED
TO MAKE ENTRIES IN LUBRICATION LOG BOOKS PRIOR TO MARCH 1, 1979 (TR.
303-304), THAT THE MAINTENANCE SECTION KEPT LUBRICATION RECORDS PRIOR TO
MARCH 1, 1979, AND FURTHER THAT THESE WERE KEPT UP TO DATE BY SHOP 02
MAINTENANCE PERSONNEL IN A MAINTENANCE SHOP SOME DISTANCE FROM THE
CRANES (TR. 334-337).
RARY'S TESTIMONY AND THAT OF WILLIAM POTTS REFLECTS ACKNOWLEDGEMENT
OF THE EXISTENCE OF THE PRE-MARCH 1, 1979 PRACTICE OF APPRISING CRANE
OPERATOR SUPERVISORS OF MOBILE CRANE LUBRICATION NEEDS, AND FURTHER THAT
IN SUCH CASES PERSONNEL OTHER THAN MOBILE CRANE OPERATORS PERFORMED
LUBRICATION ON MOBILE CRANES (TR. 148, 236-237). RARY TESTIFIED THAT AS
OF MARCH 1, 1979 THERE WERE TWO TO FIVE SERVICE EQUIPMENT EMPLOYEES
ENGAGED IN SUCH WORK (TR. 148-149). HE INDICATED THAT THERE WAS A
MANPOWER SHORTAGE IN THE SHIPYARD AND THAT SERVICE EQUIPMENT EMPLOYEES
HAD DWINDLED IN NUMBER (TR. 176-178). RARY STATED THAT THESE EMPLOYEES
WERE SPECIFICALLY CHARGED WITH MOBILE CRANE LUBRICATION DUTIES (TR. 150,
179-180). /15/
JOHN LUCAS STATED THAT CRANES WENT TO THE MAINTENANCE SHOP AS
FREQUENTLY AS EVERY TWO DAYS DEPENDING ON USE, AND THAT MAINTENANCE, DID
MOST OF THE LUBRICATION WORK (TR. 351). IT WAS CLEARLY ESTABLISHED THAT
LUBRICATION OF MOBILE CRANES WAS ROUTINELY ACCOMPLISHED ONCE A CRANE WAS
TAKEN IN FOR MAINTENANCE. RARY'S TESTIMONY ESTABLISHED THAT HE DID NOT
OBSERVE MOBILE CRANE OPERATORS LUBRICATING MOBILE CRANES PRIOR TO MARCH
1, 1979 (TR. 149, 152, 180-181). JOHN LUCAS TESTIFIED THAT HE "COULD
NOT SAY" THAT HE HAD SEEN MOBILE CRANE OPERATORS LUBRICATING THEIR
CRANES PRIOR TO MARCH 1, 1979 (TR. 342). CHARLES CRONIN'S INITIALLY
STRONG CONTENTIONS IN THIS REGARD WERE ATTENUATED BY LATER ASSERTIONS
INDICATING A WEAK BASIS FOR HIS POSITION (TR. 306-307).
WILLIAM POTTS TESTIFIED THAT AFTER MARCH 1, 1979, MOBILE CRANE
OPERATORS WERE REQUIRED TO LUBRICATE MOBILE CRANES (TR. 228); THAT IT
WAS "POSSIBLE" THAT REDUCTION OF SERVICE EQUIPMENT EMPLOYEES WAS THE
REASON FOR ISSUANCE OF THE MAY 22, 1979 INSTRUCTION; AND THAT THE
NUMBER OF SUCH EMPLOYEES WAS INSUFFICIENT TO ACCOMPLISH THE TASK OF
LUBRICATING MOBILE CRANES (TR. 235-236). LASTLY, IT WAS BROUGHT OUT BY
LEWIS RARY THAT A NEW 40 HOUR CRANE OPERATOR'S COURSE WHEREIN
LUBRICATION WAS STRESSED, WAS INITIATED AFTER MARCH 1, 1979 (TR.
131-132, 133).
DISCUSSION AND CONCLUSIONS
THE QUESTION OF UNION REPRESENTATION AT THE MARCH 1, 1979
MEETINGS
SECTION 7116(A)(1) OF THE STATUTE PROVIDES THAT IT SHALL BE AN UNFAIR
LABOR PRACTICE FOR AN AGENCY TO INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE OF ANY RIGHT PROVIDED BY THE STATUTE, AND
SECTION 7116(A)(8) PROVIDES THAT IT SHALL BE AN UNFAIR LABOR PRACTICE TO
OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF CHAPTER 71 OF
THE STATUTE. SECTION 7114(A)(2)(A) PROVIDES:
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
. . . .
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OF OTHER GENERAL CONDITIONS OF EMPLOYMENT . . .
SECTION 7114(A)(2)(A) CLOSELY FOLLOWS THE LANGUAGE PREVIOUSLY
UTILIZED IN SECTION 10(E) OF EXECUTIVE ORDER 11491, AND AUTHORITIES
REFLECTING INTERPRETATION OF SECTION 10(E) ARE RELEVANT HERE. THE ISSUE
POSED WITH RESPECT TO SECTION 7116(A)(1) AND (8) VIOLATIONS BASED ON THE
MARCH 1, 1979 MEETINGS HELD BY CHARLES CRONIN AND JOHN LUCAS, INVOLVES
THE QUESTION OF WHETHER OR NOT THE IMPOSITION OF NEW JOB REQUIREMENTS
RELATING TO THE LUBRICATION OF MOBILE CRANES CONSTITUTED A DENIAL OF THE
COUNCIL'S RIGHT TO RECEIVE PRIOR NOTICE OF THE MEETINGS, AND THE RIGHT
TO BE REPRESENTED AT SUCH MEETINGS.
IT IS CLEAR THAT THE DECISION TO IMPOSE THESE NEW DUTIES REPRESENTED
A SUBSTANTIAL CHANGE IN THE TERMS AND CONDITIONS OF EMPLOYMENT FOR
MOBILE CRANE OPERATORS, SINCE THE RECORD DEMONSTRATES THAT PRIOR TO
MARCH 1, 1979, MOBILE CRANE OPERATORS WERE NOT, IN FACT, REQUIRED TO
PERFORM SUCH DUTIES. THE NEW DUTIES IMPOSED DIRECTLY, AND IN A
SIGNIFICANT MANNER, UPON A SUBSTANTIAL NUMBER OF EMPLOYEES IN THE
BARGAINING UNIT. HOWEVER, DESPITE THE FOREGOING, NO VIOLATIONS OF
SECTION 7116(A)(1) AND (8), BASED UPON A VIOLATION OF SECTION
7114(A)(2)(A), OCCURRED BECAUSE THE RECORD SHOWS THAT THE COUNCIL HAD
PRIOR NOTICE OF BOTH MEETINGS, AND FURTHER THAT THE COUNCIL WAS IN FACT
REPRESENTED AT BOTH MEETINGS. DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, CHICAGO DISTRICT, CHICAGO, ILLINOIS, A/SLMR NO. 1120,
FLRC NO. 78A-145, 1 FLRA NO. 14 (APRIL 9, 1979); U.S. DEPARTMENT OF THE
ARMY, ABERDEEN PROVING GROUND COMMAND, MARYLAND, A/SLMR NO. 837 (MAY 6,
1977); FEDERAL AVIATION ADMINISTRATION, NATIONAL AVIATION FACILITIES
EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY, A/SLMR NO. 438
(SEPTEMBER 30, 1974).
THE RECORD ESTABLISHED THAT SUCH MEETINGS OF THE TYPE INVOLVED WERE
REGULARLY HELD AT THE BEGINNING OR END OF A SHIFT TO INFORM CRANE
OPERATORS OF IMPORTANT DEVELOPMENTS. SPECIFIC KNOWLEDGE OF THE FACT
THAT CRANE OPERATOR SUPERVISORS REGULARLY HELD SUCH MEETINGS WAS
ESTABLISHED BY OTIS ALLISON, THE UNION'S CHIEF STEWARD (TR. 55). BOTH
MEETINGS WERE ATTENDED BY UNION REPRESENTATIVES. CHIEF STEWARD ALLISON
ATTENDED THE MEETING CONVENED BY JOHN LUCAS, AND UNION STEWARD JAMES
CASON ATTENDED THE MEETING CONVENED BY CHARLES CRONIN.
IN DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, CHICAGO
DISTRICT, CHICAGO, ILLINOIS, SUPRA, THE AUTHORITY NOTED:
(T)HE AUTHORITY NOTES PARTICULARLY THE ASSISTANT SECRETARY'S FINDING
'UNDER THE PARTICULAR
CIRCUMSTANCES HEREIN,' THAT THE UNION WAS NOT DEPRIVED OF ITS SECTION
10(E) RIGHT TO BE
REPRESENTED AT A FORMAL DISCUSSION SINCE IT HAD ACTUAL NOTICE OF AND
WAS IN FACT REPRESENTED
AT THE MEETING BY THE UNION STEWARD WHO CUSTOMARILY ATTENDED SUCH
FORMAL DISCUSSIONS, AND THE
UNION THEREFORE SUFFERED NO DETRIMENT FROM LACK OF FORMAL NOTICE.
SIMILARLY, IN THIS CASE, IT MUST BE CONCLUDED THAT, IN LIGHT OF THE
NOTICE PROVIDED, AND IN LIGHT OF THE REPRESENTATION OF THE COUNCIL AT
THE MEETINGS, THE LACK OF FORMAL NOTICE HAD NO DETRIMENTAL EFFECT UPON
THE RIGHTS OF THE COUNCIL.
WHETHER THE RESPONDENT UNILATERALLY CHANGED TERMS AND CONDITIONS OF
EMPLOYMENT WITHOUT BARGAINING WITH THE COUNCIL.
UNDER THE PROVISIONS OF SECTION 7106(A)(2)(B) OF THE STATUTE
MANAGEMENT OFFICIALS HAVE THE RIGHT "TO ASSIGN WORK, . . . AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED. .
. . " HOWEVER, UNDER THE PROVISIONS OF SECTION 7106(B)(2) AND (3) OF THE
STATUTE, BARGAINING IS MANDATORY ON PROCEDURES DESIGNED FOR EXERCISING
SUCH RIGHTS, AND ON ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED, THAT
IS ON THE IMPACT AND IMPLEMENTATION OF SUCH MANAGEMENT DECISIONS. IN
THIS CASE, THE RECORD CLEARLY ESTABLISHES THAT ON OR ABOUT MARCH 1,
1979, AT CRANE OPERATOR MEETINGS HELD BY SUPERVISORS JOHN LUCAS AND
CHARLES CRONIN, UNILATERAL CHANGES IN THE TERMS AND CONDITIONS OF
EMPLOYMENT WERE IMPLEMENTED, IN THAT AS OF THE DATES OF THESE TWO
MEETINGS MOBILE CRANE OPERATORS WERE ASSIGNED SPECIFIC RESPONSIBILITY
FOR LUBRICATING MOBILE CRANES, AND FOR MAINTAINING RECORDS OF SUCH
LUBRICATION, WHEREAS PRIOR TO THESE MEETINGS SUCH WORK WAS HANDLED BY
OTHER PERSONNEL EMPLOYED BY THE SHIPYARD. THAT IS, PRIOR TO THESE
MEETINGS MOBILE CRANE OPERATORS WERE MERELY CHARGED WITH THE
RESPONSIBILITY FOR MAKING APPROPRIATE ARRANGEMENT TO EFFECT LUBRICATION
NEEDED, AS DISTINCT FROM THE TASK OF ACTUALLY LUBRICATING AND
MAINTAINING DETAILED LUBRICATION RECORDS. IN ADDITION, THE RECORD
ESTABLISHED THAT NO OPPORTUNITY TO BARGAIN, WITHIN THE TERMS OF THE
STATUTE, WAS PROVIDED TO THE COUNCIL PRIOR TO THE ANNOUNCEMENT OF THIS
CHANGE BY JOHN LUCAS AND CHARLES CRONIN.
SUBSEQUENTLY, ON MAY 22, 1979, THE CHANGES INFORMALLY EFFECTUATED ON
OR ABOUT MARCH 1, 1979, WERE FORMALIZED BY PUBLIC WORKS INSTRUCTION
11200.3B, DATED MAY 22, 1979. THIS INSTRUCTION SPECIFICALLY REQUIRED
MOBILE CRANE OPERATORS TO LUBRICATE MOBILE CRANES "IN ACCORDANCE WITH
THE OPERATOR'S MANUAL AND/OR OTHER SPECIAL INSTRUCTIONS."
AFTER ISSUANCE OF THE MAY 22, 1979 INSTRUCTION, THE PARTIES DID, ON
JUNE 27, 1979, ENGAGE IN SOME DISCUSSION OF THE NEW JOB REQUIREMENTS
ASSIGNED TO MOBILE CRANE OPERATORS; HOWEVER, THE RESPONDENT'S
REPRESENTATIVES ADVISED THE COUNCIL, PRIOR TO THE MEETING THAT THE
MATTER WAS NOT NEGOTIABLE. RESPONDENT'S SPOKESMAN ATTENDED THE MEETING
WITH NO INTENTION TO ENGAGE IN BARGAINING, AND LASTLY THE SPOKESMAN
ACKNOWLEDGED THAT BARGAINING DID NOT IN FACT OCCUR. THEREFORE, THE
RECORD ESTABLISHES THAT PRIOR TO THE ISSUANCE OF THE MAY 22, 1979
INSTRUCTION, BARGAINING WITHIN THE MEANING OF THE STATUTE DID NOT OCCUR.
/16/
BASED UPON THE FOREGOING IT IS CONCLUDED THAT THE RESPONDENT ON OR
ABOUT MARCH 1, 1979, AND MAY 22, 1979, CHANGED THE TERMS AND CONDITIONS
OF EMPLOYMENT RELATING TO BARGAINING UNIT MEMBERS BY UNILATERALLY
REQUIRING MOBILE CRANE OPERATORS TO LUBRICATE MOBILE CRANES AND MAINTAIN
LUBRICATION LOG BOOKS IN MOBILE CRANES, WITHOUT FIRST PROVIDING THE
COUNCIL WITH AN OPPORTUNITY TO NEGOTIATE CONCERNING THE PROCEDURES WHICH
RESPONDENT WOULD OBSERVE IN IMPLEMENTING THE CHANGE AND CONCERNING
APPROPRIATE ARRANGEMENTS FOR VIOLATIVE OF SECTIONS 7116(A)(1) AND (5) OF
THE STATUTE.
HAVING FOUND THAT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH, VIRGINIA
VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND THAT
THE AUTHORITY ISSUE THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7)(A) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7118(A)(7)(A), AND SECTION
2423.29(B)(1) OF THE RULES AND REGULATIONS, 5 C.F.R. 2423.29(B)(1), THE
AUTHORITY HEREBY ORDERS THAT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REQUIRING MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES RELATING
TO THE LUBRICATION OF
MOBILE CRANES, AND MAINTENANCE OF LUBRICATION LOG RECORDS PERTAINING
TO MOBILE CRANES, WITHOUT
FIRST NOTIFYING THE EXCLUSIVE BARGAINING REPRESENTATIVE AND AFFORDING
IT THE OPPORTUNITY TO
MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS ON
THE PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN REQUIRING MOBILE CRANE OPERATORS TO
PERFORM SUCH DUTIES, AND
CONCERNING THE IMPACT SUCH CHANGES WILL HAVE ON ADVERSELY AFFECTED
EMPLOYEES.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) UPON REQUEST, MEET AND CONFER WITH THE TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL
TRADES COUNCIL, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS,
CONCERNING PROCEDURES TO BE
USED IN REQUIRING MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES
RELATING TO THE LUBRICATION OF
MOBILE CRANES, AND MAINTENANCE OF LUBRICATION LOG RECORDS PERTAINING
TO MOBILE CRANES; AND
CONCERNING THE IMPACT OF SUCH CHANGES ON ADVERSELY AFFECTED EMPLOYEES
IN THE BARGAINING UNIT.
(B) POST AT ITS FACILITIES AT THE NORFOLK NAVAL SHIPYARD, PORTSMOUTH,
VIRGINIA, COPIES OF
THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
COMMANDER, NORFOLK NAVAL
SHIPYARD, AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS
THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES
ARE CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID 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.
LOUIS SCALZO
ADMINISTRATIVE LAW JUDGE
DATED: OCTOBER 15, 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 CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REQUIRE MOBILE CRANE OPERATORS TO PERFORM JOB DUTIES
RELATING TO THE LUBRICATION OF MOBILE CRANES AND MAINTENANCE OF
LUBRICATION LOG RECORDS PERTAINING TO MOBILE CRANES, WITHOUT FIRST
NOTIFYING THE EXCLUSIVE BARGAINING REPRESENTATIVE AND AFFORDING IT THE
OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS ON THE PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN REQUIRING
MOBILE CRANE OPERATORS TO PERFORM SUCH DUTIES, AND CONCERNING THE IMPACT
SUCH CHANGE WILL HAVE ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL UPON REQUEST, MEET AND CONFER WITH THE TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL, TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS, CONCERNING PROCEDURES TO BE USED IN REQUIRING MOBILE
CRANE OPERATORS TO PERFORM JOB DUTIES RELATING TO THE LUBRICATION OF
MOBILE CRANES, AND MAINTENANCE OF LUBRICATION LOG RECORDS PERTAINING TO
MOBILE CRANES; AND CONCERNING THE IMPACT OF SUCH CHANGES ON ADVERSELY
AFFECTED EMPLOYEES IN THE BARGAINING UNIT.
(AGENCY OR ACTIVITY)
DATED: BY:
SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III,
WHOSE ADDRESSES IS: 1133 15TH STREET, NW., SUITE 300, WASHINGTON, D.C.
20005, AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
--------------- FOOTNOTES: ---------------
/1/ SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER (.)
/2/ SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/3/ SECTION 7114(A) OF THE STATUTE PROVIDES, INTER ALIA, AS FOLLOWS:
. . . .
(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE
OPPORTUNITY TO BE REPRESENTED AT--
(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE
EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL
POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)
/4/ SECTION 7106(B)(2) AND (3) OF THE STATUTE PROVIDES:
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION; OR
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/5/ ALTHOUGH THE COMPLAINT REFERS TO "CRANES" GENERALLY, COUNSEL FOR
THE GENERAL COUNSEL CONTENDED THROUGHOUT THE PROCEEDING THAT THE
ALLEGED
CHANGE AFFECTED "MOBILE CRANES" ONLY (TR. 82-84). PROOF INTRODUCED BY
COUNSEL FOR THE GENERAL COUNSEL REFERRED SOLELY TO MOBILE CRANES, AND
THIS LIMITATION WAS RECOGNIZED BY COUNSEL REPRESENTING THE RESPONDENT
(TR. 158). BY STIPULATION OF THE PARTIES THE MOBILE CRANE CATEGORY WAS
FURTHER LIMITED SO AS TO EXCLUDE MOBILE CRANES DESIGNATED AS "SPECIAL
PURPOSE CRANES" (TR. 286-287).
/6/ HEREINAFTER REFERENCES TO THE TRANSCRIPT WILL BE DESIGNATED "TR.
. . . ," AND REFERENCES TO EXHIBITS WILL BE DESIGNATED "G.C. EXH. . . .
," "R. EXH., . . . ," OR "JT. EXH. . . . . "
/7/ TWO WAGE GRADE 11 JOB DESCRIPTIONS WERE INCLUDED AS PART OF THE
RECORD. THEY ARE ESSENTIALLY THE SAME FOR PURPOSES INVOLVED IN THIS
CASE (TR. 193, 204-205). INTERESTINGLY, THE WAGE GRADE 12 CRANE
OPERATOR JOB DESCRIPTION DOES CARRY A REQUIREMENT IMPOSING SOME
LUBRICATION DUTIES (R. EXH. 5, TR. 217).
/8/ UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT GOVERNING
THE LABOR RELATIONS OF THE PARTIES CHIEF STEWARDS HAD AUTHORITY TO MEET
AND CONFER WITH SHOP HEADS FOR THE PURPOSE OF RESOLVING PROBLEMS
INVOLVING PERSONNEL POLICIES AND PRACTICES, AND APPROPRIATE MATTERS
CONCERNING EMPLOYEE WORKING CONDITIONS (JT. EX. 1 AT 86-87).
/9/ CHARLES CRONIN TESTIFIED THAT HE DID NOT RECALL SUCH A MEETING,
BUT ACKNOWLEDGED THAT THE MEETING COULD HAVE OCCURRED (TR. 288-289).
/10/ THE COLLECTIVE BARGAINING AGREEMENT PROVIDED THAT THE COUNCIL
WOULD ASSIGN STEWARDS TO PERFORM APPROPRIATE REPRESENTATIONAL
ACTIVITIES, THAT STEWARDS WOULD ACT ON BEHALF OF THE COUNCIL IN THEIR
RESPECTIVE AREAS OR SHOPS, AND THAT STEWARDS WOULD WORK WITH MANAGEMENT
OFFICIALS AT THE FOREMAN OR GENERAL FOREMAN LEVELS TO RESOLVE PROBLEMS
(ARTICLES 7 AND 32, JT. EXH. 1).
/11/ CRONIN ACKNOWLEDGED THAT LUBRICATION LOG BOOKS WERE NOT USED ON
MOBILE CRANES PRIOR TO MARCH 1, 1979 (TR. 291). CRONIN INITIALLY
TESTIFIED THAT ON INSTRUCTIONS FROM HIGHER AUTHORITY HE HAD LUBRICATION
LOG CHARTS AND LUBRICATION LOG BOOKS PLACED ON MOBILE CRANES IN OR
AROUND APRIL, MAY AND JUNE OF 1979 (TR. 289-291).
/12/ THE TWO INSTRUCTIONS DID IMPOSE THE SAME REQUIREMENTS WITH
REGARD TO THE MAINTENANCE OF "CRANE LOG" BOOKS AND ODCL'S (TR. 114).
/13/ A SUBSEQUENT SEPTEMBER 25, 1979 MEETING ATTENDED BY THE PARTIES
PROVED TO BE A SETTLEMENT CONFERENCE CONVENED AFTER THE FILING OF THE
UNFAIR LABOR PRACTICE CHARGE HEREIN. EVIDENCE RELATING TO THIS MEETING
HAS BEEN GIVEN NO CONSIDERATION WHATSOEVER, AND IS NOT OTHERWISE
CONSIDERED PROBATIVE EVIDENCE ON ANY ISSUE.
/14/ REFERENCE IS MADE TO THE TESTIMONY OF LEWIS RARY, WILLIAM POTTS,
CHARLES CRONIN AND JOHN LUCAS.
/15/ WILLIAM POTTS' TESTIMONY ESTABLISHED THAT LUBRICATION WAS THE
MAJOR FUNCTION PERFORMED BY THESE EMPLOYEES (TR. 194-195), THAT THEY
WERE DOING MOST OF THE LUBRICATION OF MOBILE CRANES PRIOR TO MARCH 1,
1979 (TR. 228), AND THAT IT WAS, AT THAT TIME, PART OF THEIR JOB
DESCRIPTION (TR. 233).
/16/ SECTION 7103(A)(12) OF THE STATUTE DEFINES "COLLECTIVE
BARGAINING" AS "THE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE UNIT IN THE AGENCY TO MEET AT REASONABLE
TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO REACH
AGREEMENT WITH RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH
EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
DOCUMENT INCORPORATING ANY COLLECTIVE BARGAINING AGREEMENT REACHED, BUT
THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT COMPEL EITHER
PARTY TO AGREE TO A PROPOSAL OR MAKE A CONCESSION."
EVEN ASSUMING THAT BARGAINING DID TAKE PLACE, SUCH BARGAINING, MONTHS
AFTER EFFECTUATION OF THE CHANGE, WOULD NOT HAVE SERVED TO REMEDY THE
RESPONDENT'S INITIAL FAILURE TO NOTIFY THE UNION OF THE CHANGE.
DEPARTMENT OF THE AIR FORCE, 47TH FLYING WING, LAUGHLIN AIR FORCE BASE,
TEXAS, ASSISTANT SECRETARY CASE NO. 63-8164(CA), 2 FLRA NO. 24 (DECEMBER
5, 1979).