[ v06 p159 ]
06:0159(32)CA
The decision of the Authority follows:
6 FLRA No. 32
OKLAHOMA CITY AIR LOGISTICS
CENTER (AFLC) TINKER AIR
FORCE BASE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916
Charging Party
Case No. 6-CA-175
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT
HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THE
JUDGE FURTHER FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN OTHER ALLEGED
UNFAIR LABOR PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH
RESPECT TO THEM. EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND
ORDER WERE FILED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL
COUNSEL, AND OPPOSITION BRIEFS WERE FILED BY THE RESPONDENT AND THE
GENERAL COUNSEL.
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 INCLUDING HIS RECOMMENDED ORDER, EXCEPT FOR THOSE
PORTIONS OF THE RECOMMENDED DECISION AND ORDER SPECIFICALLY DISCUSSED
HEREIN.
THE JUDGE RECOMMENDED DISMISSAL OF THE PORTIONS OF THE COMPLAINT
REGARDING CERTAIN STATEMENTS MADE ABOUT THE UNION TO BARGAINING UNIT
EMPLOYEES BY RESPONDENT'S SUPERVISOR GIBSON. THUS, THE JUDGE FOUND THAT
SUPERVISOR GIBSON SAID TO AN EMPLOYEE THAT "THE UNION ISN'T WORTH THE
PAPER IT IS PRINTED ON" AND "$11.00 A MONTH ISN'T WORTH THE MONEY
INVESTED IN IT." ALSO, GIBSON SAID TO ANOTHER EMPLOYEE, "DO YOU KNOW
YOUR UNION DUES ARE GOING UP?" FINALLY, THE JUDGE FOUND GIBSON TOLD A
THIRD EMPLOYEE THAT "THE UNION HAS TO REPRESENT YOU WHETHER YOU ARE A
MEMBER OR NOT, DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR MONEY." AT
THE TIME SUCH STATEMENTS WERE MADE, THERE WAS NO REPRESENTATIONAL
ELECTION PENDING AT THE ACTIVITY. THE JUDGE FOUND THAT THE STATEMENTS
WERE PROTECTED BY SECTION 7116(E) OF THE STATUTE, /1/ AND THAT EVEN IF
NOT WITHIN THE PURVIEW OF THAT SECTION, UNDER THE CIRCUMSTANCES OF THIS
CASE THE STATEMENTS DID NOT INTERFERE WITH, RESTRAIN OR COERCE EMPLOYEES
IN THE EXERCISE OF PROTECTED RIGHTS. IN SO FINDING, THE JUDGE
DETERMINED THAT SECTION 7116(E) WAS INTENDED TO ADDRESS TWO SEPARATE AND
DISTINCT SITUATIONS:
FIRST, THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT OR OPINION,
EXCLUDING REPRESENTATIONAL
ELECTIONS, WHICH IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR
FORCE OR PROMISE OF
BENEFIT AND IS NOT MADE UNDER COERCIVE CONDITIONS, SHALL NOT
CONSTITUTE AN UNFAIR LABOR
PRACTICE. SECOND, STATEMENTS . . . IN RELATION TO REPRESENTATIONAL
ELECTIONS WHICH ARE
PROTECTED ONLY IF SUCH STATEMENT (1) PUBLICIZES THE FACT OF AN
ELECTION AND ENCOURAGES
EMPLOYEES TO VOTE, (2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE
OR MISLEADING STATEMENT,
OR (3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS AND
REPRESENTATION, AND SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT
OF REPRISAL OR FORCE OR
PROMISE OF BENEFIT AND IS NOT MADE UNDER COERCIVE CONDITIONS
CONSTITUTE AN UNFAIR LABOR
PRACTICE OR CONSTITUTE GROUNDS FOR SETTING ASIDE AN ELECTION.
THUS, THE JUDGE CONCLUDED THAT THE PURPOSE AND INTENT OF SECTION
7116(E) IS TWO-FOLD. FIRST, IT IS INTENDED TO ASSURE NEUTRALITY IN
REPRESENTATION ELECTIONS. SECOND, OUTSIDE OF A REPRESENTATIONAL
CONTEXT, SECTION 7116(E) PROTECTS THE EXPRESSION OF PERSONAL VIEWS,
ARGUMENTS OR OPINIONS BY MANAGEMENT, EMPLOYEES, OR UNION REPRESENTATIVES
AS LONG AS SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR
PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS. THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S REASONING, AS WELL AS HIS ANALYSIS
AND CONCLUSION THAT GIBSON'S STATEMENTS HEREIN DID NOT VIOLATE SEC.
7116(A)(1) OF THE STATUTE, AS THERE WAS NO THREAT OF REPRISAL OR FORCE
OR PROMISE OF BENEFIT, AND THE COMMENTS WERE NOT MADE UNDER COERCIVE
CONDITIONS.
AT THE HEARING, THE COMPLAINT WAS AMENDED AT THE REQUEST OF THE
GENERAL COUNSEL TO INCLUDE AN ALLEGATION THAT RESPONDENT MAINTAINED A
NO-SOLICITATION RULE WHICH PROHIBITED ALL PAID-TIME SOLICITATION IN
VIOLATION OF SECTION 7116(A)(1) OF THE STATUTE. SPECIFICALLY, THE
GENERAL COUNSEL ARGUED THAT RESPONDENT'S PROHIBITION OF SOLICITATION
DURING AN EMPLOYEE'S FREE OR NONDUTY TIME, ALBEIT PAID-TIME, WAS
VIOLATIVE OF THE STATUTE. THE RESPONDENT CONCEDES THAT SUCH A RULE WAS
MAINTAINED AND THAT THE PROHIBITION OF SOLICITATION WAS EXTENDED TO
INCLUDE EMPLOYEES' PAID BREAK AND LUNCH PERIODS. MOREOVER, PROBATIONARY
EMPLOYEE BEASLEY WAS ADMONISHED FOR HIS BREAK-TIME SOLICITATION
ACTIVITIES; INDEED, HIS ALLEGED IMPROPER SOLICITATION WAS GIVEN BY THE
ACTIVITY AS A REASON FOR HIS TERMINATION.
THE JUDGE FOUND THAT THE RESPONDENT'S MAINTENANCE OF THE RULE
PROHIBITING SOLICITATION OF MEMBERSHIP BY THE UNION DURING ALL PAID
BREAKS AND ITS DISCIPLINE OF PROBATIONARY EMPLOYEE BEASLEY FOR VIOLATION
OF THIS RULE CONSTITUTED VIOLATIONS OF SECTION 7116(A)(1) OF THE
STATUTE. IN SO FINDING, THE JUDGE NOTED THE BASIC DIFFERENCE BETWEEN
DUTY TIME (CLOCK TIME) AND WORKING TIME, AND NOTED FURTHER THAT
NO-SOLICITATION RULES WHICH SEEK TO PROHIBIT SOLICITATION DURING ALL
DUTY TIME VIOLATE THE RIGHTS OF EMPLOYEES.
THE AUTHORITY ADOPTS THE JUDGE'S CONCLUSION IN THIS REGARD. WE NOTE
THAT THE RESPONDENT HAS GRANTED DESIGNATED REST BREAKS AND PAID LUNCH
BREAKS PURSUANT TO DEPARTMENT OF AIR FORCE REGULATION 40-610 AND THAT
SECTION 7131(B) OF THE STATUTE REQUIRES THAT "SOLICITATION OF MEMBERSHIP
. . . BE PERFORMED DURING THE TIME THE EMPLOYEE IS IN A NONDUTY STATUS."
HOWEVER WHERE, AS HERE, IT HAS BEEN DETERMINED THAT EMPLOYEES, AT THE
DISCRETION OF MANAGEMENT, HAVE BEEN ASSIGNED PERIODS OF TIME DURING
WHICH THE PERFORMANCE OF JOB FUNCTIONS IS NOT REQUIRED (I.E., PAID FREE
TIME), THE AUTHORITY FINDS THAT SUCH TIME FALLS WITHIN THE MEANING OF
THE TERM "NONDUTY STATUS" AS USED IN SECTION 7131(B). THUS,
SOLICITATION OF MEMBERSHIP DURING SUCH TIME IS PERMISSIBLE.
ACCORDINGLY, AS CONCLUDED BY THE JUDGE, THE RESPONDENT'S CONDUCT IN
MAINTAINING A RULE PROHIBITING SOLICITATION OF MEMBERSHIP DURING SUCH
BREAKS AND IN DISCIPLINING EMPLOYEE BEASLEY FOR VIOLATING SUCH AN
UNLAWFUL RULE, VIOLATED THE STATUTE.
ORDER /2/
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 OKLAHOMA CITY AIR LOGISTICS CENTER
(AFLC) TINKER AIR FORCE BASE, OKLAHOMA, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERROGATING EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE THEY
GOT INFORMATION ABOUT JOINING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916, THE EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
(B) PROMULGATING, MAINTAINING, OR ENFORCING ANY DIRECTIVE,
REGULATION, OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES DURING PAID
MEAL AND BREAK PERIODS WHERE NO JOB FUNCTIONS ARE REQUIRED FROM
SOLICITING ANY OTHER EMPLOYEES AT THEIR WORK PLACE FOR MEMBERSHIP ON
BEHALF OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 916, OR ANY OTHER LABOR ORGANIZATION, PROVIDING THERE IS NO
INTERFERENCE WITH THE WORK OF THE AGENCY.
(C) DISCHARGING, DISCIPLINING, OR TREATING IN A DISPARATE MANNER JOHN
BEASLEY IN REGARD TO HIS CONDITIONS OF EMPLOYMENT IN ORDER TO INTERFERE
WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE OF ANY RIGHT ASSURED BY
THE STATUTE.
(D) APPLYING AND/OR ENFORCING EXISTING PROCEDURES, POLICIES AND
REGULATIONS, IN A DISPARATE MANNER WHICH INTERFERES WITH, RESTRAINS, OR
COERCES MEMBERS OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916, OR ANY OTHER LABOR ORGANIZATION.
(E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS FORMER
OR A SUBSTANTIALLY EQUIVALENT POSITION WITHOUT PREJUDICE TO HIS
SENIORITY OR OTHER RIGHTS AND PRIVILEGES AND MAKE HIM WHOLE, CONSISTENT
WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME HE MAY HAVE
SUFFERED BY REASON OF HIS UNLAWFUL TERMINATION AS A PROBATIONARY
EMPLOYEE, BY PAYING TO HIM A SUM OF MONEY EQUAL TO THE AMOUNT HE WOULD
HAVE EARNED OR RECEIVED FROM THE DATE OF HIS TERMINATION TO THE DATE
OFFERED TO HIM TO RETURN TO WORK, LESS ANY AMOUNT EARNED THROUGH OTHER
EMPLOYMENT DURING THE ABOVE-NOTED PERIOD.
(B) REMOVE OR EXPUNGE FROM ITS FILES ANY REFERENCE TO THE
ADMONISHMENT GIVEN JOHN BEASLEY ON MAY 26, 1979, REGARDING HIS LAWFUL
SOLICITATION ACTIVITIES, AND ACKNOWLEDGE SUCH REMOVAL TO BEASLEY IN
WRITING.
(C) POST AT ITS FACILITIES AT TINKER AIR FORCE BASE 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
COMMANDING OFFICER, OKLAHOMA CITY AIR LOGISTICS CENTER (AFLC), TINKER
AIR FORCE BASE, 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 COMMANDING OFFICER SHALL TAKE REASONABLE STEPS 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, REGION VI, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JUNE 25, 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 BY THE FEDERAL LABOR
RELATIONS AUTHORITY 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 INTERROGATE EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE
THEY GOT INFORMATION ABOUT JOINING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916, THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT PROMULGATE, MAINTAIN, OR ENFORCE ANY DIRECTIVE,
REGULATION, OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES DURING PAID
MEAL OR BREAK PERIODS WHERE NO JOB FUNCTIONS ARE REQUIRED FROM
SOLICITING ANY OTHER EMPLOYEES AT THEIR WORK PLACE FOR MEMBERSHIP ON
BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
916, OR ANY OTHER LABOR ORGANIZATION, PROVIDING THERE IS NO INTERFERENCE
WITH THE WORK OF THE AGENCY.
WE WILL NOT DISCHARGE, DISCIPLINE, OR TREAT IN A DISPARATE MANNER
JOHN BEASLEY IN REGARD TO HIS CONDITIONS OF EMPLOYMENT IN ORDER TO
INTERFERE WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE OF ANY RIGHT
ASSURED BY THE STATUTE.
WE WILL NOT APPLY AND/OR ENFORCE EXISTING PROCEDURES, POLICIES AND
REGULATIONS IN A DISPARATE MANNER WHICH INTERFERES WITH, RESTRAINS, OR
COERCES MEMBERS OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 916, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF ANY RIGHT UNDER THE STATUTE.
WE WILL OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS
FORMER OR A SUBSTANTIALLY EQUIVALENT POSITION WITHOUT PREJUDICE TO HIS
SENIORITY OR OTHER RIGHTS AND PRIVILEGES AND MAKE HIM WHOLE, CONSISTENT
WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME HE MAY HAVE
SUFFERED BY REASON OF THE UNLAWFUL TERMINATION OF HIS EMPLOYMENT DURING
HIS PROBATIONARY PERIOD, BY PAYING TO HIM A SUM OF MONEY EQUAL TO THE
AMOUNT HE WOULD HAVE EARNED OR RECEIVED FROM THE DATE OF HIS TERMINATION
TO THE DATE OFFERED TO HIM TO RETURN TO WORK, LESS ANY AMOUNT EARNED BY
HIM THROUGH OTHER EMPLOYMENT DURING THE ABOVE-NOTED PERIOD.
WE WILL REMOVE OR EXPUNGE FROM OUR FILES ANY REFERENCE TO THE
ADMONISHMENT GIVEN JOHN BEASLEY ON MAY 26, 1979, REGARDING HIS LAWFUL
SOLICITATION ACTIVITIES, AND ACKNOWLEDGE THE REMOVAL TO BEASLEY IN
WRITING.
(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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VI, WHOSE
ADDRESS IS: ROOM 450, OLD POST OFFICE BUILDING, BRYAN & ERVAY STREETS,
DALLAS, TEXAS 75221, AND WHOSE TELEPHONE NUMBER IS 214-767-4996.
-------------------- ALJ DECISION FOLLOWS --------------------
STEVEN M. ANGEL, ESQUIRE
ALVARO GARCA, ESQUIRE
FOR THE GENERAL COUNSEL
MAJOR MICHAEL J. PETHERICK
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION
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. 7101, ET SEQ., /3/ AND THE RULES AND REGULATIONS ISSUED
THEREUNDER, 5 C.F.R.CHAPTER XIV /4/ .
A CHARGE WAS FILED BY THE CHARGING PARTY, LOCAL 916, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (HEREINAFTER ALSO REFERRED
TO AS THE "UNION"), ON JULY 26, 1979, ALLEGING VIOLATIONS OF SECTIONS
16(A)(1), (2), (4) AND (8) OF THE STATUTE (G.C. EXH. 1(A)); AND ON
NOVEMBER 20, 1979, THE CHARGING PARTY FILED AN AMENDED CHARGE
(ERRONEOUSLY TITLED "FIRST AMENDED COMPLAINT") WHICH ALLEGED VIOLATIONS
OF SECTION 16(A)(1), (2) AND (8) OF THE STATUTE (G.C. EXH. 1(D)). ON
DECEMBER 11, 1979, THE REGIONAL DIRECTOR ISSUED A COMPLAINT AND NOTICE
OF HEARING (G.C. EXH. 1(G)). THE COMPLAINT, IN PARAGRAPH 7, ALLEGES
VIOLATIONS OF SECTIONS 16(A)(1) AND (5) OF THE STATUTE, ALTHOUGH NEITHER
THE ORIGINAL NOR THE AMENDED CHARGE ALLEGED A VIOLATION OF SECTION
16(A)(5) OF THE STATUTE; THE COMPLAINT SET FORTH NO FACTUAL ALLEGATIONS
OF A 16(A)(5) VIOLATION; AND NO VIOLATION OF 16(A)(5) WAS SHOWN.
ACCORDINGLY, THE ALLEGATION IN PARAGRAPH 7 OF THE COMPLAINT ALLEGING A
VIOLATION OF SECTION 16(A)(5) OF THE STATUTE IS DISMISSED.
AT THE HEARING, GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT TO ADD A
NEW SUBPARAGRAPH (E) TO PARAGRAPH 5. THIS MOTION TO AMEND THE COMPLAINT
WAS GRANTED ON JANUARY 16, 1980, AND A RECESS WAS TAKEN UNTIL THE
FOLLOWING DAY, JANUARY 17, 1980, TO ALLOW GENERAL COUNSEL AND RESPONDENT
TIME TO PREPARE FOR LITIGATION OF THE ISSUES RAISED BY THE AMENDMENT.
SUBPARAGRAPH (E) OF THE COMPLAINT AS AMENDED, PROVIDES AS FOLLOWS:
"5.
("AT ALL TIMES MATERIAL HEREIN, RESPONDENT INTERFERED WITH,
RESTRAINED, AND COERCED, AND IS
INTERFERING WITH, RESTRAINING AND COERCING THE EMPLOYEES IN THE
EXERCISE OF RIGHTS GUARANTEED
BY 5 U.S.C. 7102 BY THE FOLLOWING ACTS AND CONDUCT.)
. . . .
"(E) BY MAINTAINING AT ALL MATERIAL TIMES HEREIN AN UNLAWFUL RULE
PROHIBITING SOLICITATION
OF UNION MATTERS DURING BREAK AND LUNCH PERIODS." (TR. 297, 317-318,
319-320)
THERE IS NO QUESTION WHATEVER THAT PARAGRAPH 5 OF THE COMPLAINT
ASSERTS CONDUCT IN VIOLATION OF SECTION 16(A)(1) AND THAT PARAGRAPH 7 OF
THE COMPLAINT ALLEGES THAT THE CONDUCT DESCRIBED IN PARAGRAPHS 5 AND 6
VIOLATED SECTION 16(A)(1) OF THE STATUTE. THE PROBLEM IS THAT, WHILE
PARAGRAPH 6 OF THE COMPLAINT ASSERTS CONDUCT IN VIOLATION OF SECTION
16(A)(2) OF THE STATUTE, PARAGRAPH 7 OF THE COMPLAINT DOES NOT ALLEGE A
VIOLATION OF SECTION 16(A)(2) OF THE STATUTE, AS RESPONDENT VERY
CORRECTLY ASSERTS IN ITS BRIEF. I HAVE NO DOUBT THAT THE REFERENCE IN
PARAGRAPH 7 OF THE COMPLAINT TO 16(A)(5) WAS A TYPOGRAPHICAL ERROR AND
THAT REFERENCE WAS INTENDED TO 16(A)(2). HAD A MOTION BEEN MADE TO
AMEND THE COMPLAINT TO ALLEGE A VIOLATION OF 16(A)(2), I WOULD HAVE
GRANTED SUCH MOTION; BUT, IN THE ABSENCE OF A TIMELY MOTION, MAY I
TREAT THE COMPLAINT AS ALLEGING A 16(A)(2) VIOLATION? IN U.S.
DEPARTMENT OF THE AIR FORCE, AIR FORCE COMMUNICATIONS SERVICE (AFCS),
2024TH COMMUNICATIONS SQUADRON, MOODY AIR FORCE BASE, GEORGIA, A/SLMR
NO. 248, 3 A/SLMR 116(1973), JUDGE KRAMER STATED,
" . . . ALTHOUGH THE COMPLAINT DOES NOT IN TERMS CHARGE A VIOLATION
OF SECTION 19(A)(4),
THE BODY OF THE COMPLAINT CHARGES CONDUCT THAT WOULD BE A VIOLATION
OF THAT SUBSECTION AND THE
COMPLAINT IS HERE TREATED AS CHARGING A VIOLATION OF THE THREE
SUBSECTIONS." (3 A/SLMR AT
117).
HOWEVER, JUDGE KRAMER FOUND THAT THE ALLEGATIONS OF THE COMPLAINT HAD
NOT BEEN SUSTAINED BY A PREPONDERANCE OF THE EVIDENCE AND HE RECOMMENDED
THAT THE COMPLAINT BE DISMISSED FOR FAILURE OF PROOF. THE ASSISTANT
SECRETARY AFFIRMED AND DISMISSED THE COMPLAINT WITHOUT ADDRESSING THE
ABOVE STATEMENT. IN DEPARTMENT OF TRANSPORTATION, OFFICE OF THE
SECRETARY OF TRANSPORTATION, CASE NO. 22-5891(CA), 6 A/SLMR SUPP.
120(1976), JUDGE CHAITOVITZ, STATED, IN FOOTNOTE 1, AS FOLLOWS:
"ALTHOUGH REFERENCE TO SECTION 19(A)(1) WAS APPARENTLY INADVERTANTLY
OMITTED FROM PART 2 OF
THE COMPLAINT, IT WAS INCLUDED IN THE NOTICE OF HEARING. FURTHER,
THE SECTION 19(A)(1)
ALLEGATION WAS FULLY LITIGATED AND ARGUED AND THE ACTIVITY HAS NOT AT
ANY TIME RAISED AN
OBJECTION TO ITS CONSIDERATION. THEREFORE, THIS MATTER IS BEING
TREATED AS IF THE COMPLAINT
HAD BEEN AMENDED TO INCLUDE A SECTION 19(A)(1) ALLEGATION." (6 A/SLMR
SUPP. AT 121 N.1)
A VIOLATION OF 19(A)(1) WAS FOUND WHICH THE ASSISTANT SECRETARY
AFFIRMED, A/SLMR NO. 672, 6 A/SLMR 337(1976).
HERE, AS IN MOODY AIR FORCE BASE, SUPRA, AND DEPARTMENT OF
TRANSPORTATION, SUPRA, THE BODY OF THE COMPLAINT CHARGES CONDUCT THAT
WOULD BE VIOLATIVE OF SECTION 16(A)(2). INDEED, THERE WERE VARIOUS
REFERENCES TO THE ALLEGED 16(A)(2) VIOLATION (SEE, FOR EXAMPLE TR. 307.
OBVIOUSLY, THE REPORTER'S REFERENCE "711682" MEANT "7116(A)(2)" AND
SUCH REFERENCES ARE HEREBY CORRECTED TO READ "7116(A)(2)").
NEVERTHELESS, UNLIKE DEPARTMENT OF TRANSPORTATION, SUPRA, RESPONDENT,
IN ITS BRIEF, HAS OBJECTED TO ANY FINDING OF A VIOLATION OF 16(A)(2) FOR
THE REASON THAT THE COMPLAINT HAS NOT BEEN AMENDED TO SO CHARGE. WHERE
THE BODY OF THE COMPLAINT ALLEGES FACTS WHICH WOULD CONSTITUTE A
VIOLATION OF SEC. 16(A)(2) AND REFERENCE IS MADE AT THE HEARING TO A
16(A)(2) VIOLATION WITHOUT OBJECTION BY RESPONDENT IT MIGHT, CONSISTENT
WITH MOODY AIR FORCE BASE, SUPRA, AND DEPARTMENT OF TRANSPORTATION,
SUPRA, SERVE THE ENDS OF JUSTICE TO TREAT THE COMPLAINT AS IF IT HAD
BEEN AMENDED TO CHARGE A VIOLATION OF 16(A)(2) IF IT WERE NECESSARY TO
SO TREAT THE COMPLAINT IN ORDER TO REMEDY THE CONDUCT ALLEGED AS AN
UNFAIR LABOR PRACTICE IN PARAGRAPH 6 OF THE COMPLAINT. HOWEVER AS THE
CONDUCT, ALLEGED IN PARAGRAPH 6 OF THE COMPLAINT, WOULD CONSTITUTE A
VIOLATION OF SECTION 16(A)(1), AS WELL AS OF SECTION 16(A)(2), I
CONCLUDE THAT NO VIOLATION OF SECTION 16(A)(2) SHOULD BE CONSIDERED AND
EXPRESSLY DECLINE TO DECIDE WHETHER A COMPLAINT COULD BE SO TREATED
WHERE RESPONDENT HAS, SPECIFICALLY, OBJECTED AND GENERAL COUNSEL HAS NOT
SOUGHT TO AMEND THE COMPLAINT; HOWEVER, THE CONDUCT ALLEGED IN
PARAGRAPH 6 OF THE COMPLAINT WILL BE CONSIDERED AS AN ALLEGATION OF
VIOLATION OF SECTION 16(A)(1) OF THE STATUTE, AS SPECIFICALLY ALLEGED IN
PARAGRAPH 7 OF THE COMPLAINT, AND ANY SUCH CONDUCT FOUND TO VIOLATE
SECTION 16(A)(1) OF THE STATUTE WILL BE REMEDIED PURSUANT TO SECTION
16(A)(1) OF THE STATUTE. CF., UNITED STATES DEPARTMENT OF THE ARMY,
FORT POLK, LOUISIANA, A/SLMR NO. 1100, 8 A/SLMR 880(1978).
PURSUANT TO THE NOTICE OF HEARING, A HEARING WAS DULY HELD BEFORE THE
UNDERSIGNED IN OKLAHOMA CITY, OKLAHOMA, ON JANUARY 15, 16 AND 17, 1980.
ALL PARTIES WERE REPRESENTED BY ABLE COUNSEL, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, TO
INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED, AND TO PRESENT ORAL
ARGUMENT. AT THE CLOSE OF THE TESTIMONY, FEBRUARY 18, 1980, WAS FIXED
AS THE DATE FOR MAILING POST-HEARING BRIEFS; HOWEVER, AS THIS DATE FELL
ON A RECOGNIZED FEDERAL HOLIDAY, AT THE REQUEST OF COUNSEL FOR THE
GENERAL COUNSEL, AND WITH THE CONCURRENCE OF COUNSEL FOR RESPONDENT,
THIS TIME WAS, ORALLY, EXTENDED BY THE UNDERSIGNED TO FEBRUARY 19, 1980.
COUNSEL FOR EACH PARTY HAS, ACCORDINGLY, TIMELY MAILED A MOST HELPFUL
BRIEF WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE
ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
DEMEANOR, /5/ I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS AND CONCLUSIONS
THIS CASE CONCERNS ACTIVITY WITHIN THE AIR FREIGHT TERMINAL AT TINKER
AIR FORCE BASE. THE AIR FREIGHT TERMINAL HANDLES THE LOADING AND
UNLOADING OF AIR CARGO AND HAS THREE SHIFTS: DAY SHIFT, 8:00 A.M. TO
4:00 P.M.; /6/ SWING SHIFT 4 P.M. TO 12 MIDNIGHT; AND GRAVEYARD SHIFT,
12 MIDNIGHT TO 8:00 A.M. INDEED, THE ACTIVITY INVOLVED IN THIS
PROCEEDING CONCERNS INDIVIDUALS INVOLVED PRINCIPALLY, IF NOT
EXCLUSIVELY, IN HANDLING THE PREPARATION OF FREIGHT FOR LOADING.
PREPARATION OF FREIGHT FOR LOADING INVOLVES THE PLACING OF DESIGNATED
ITEMS, AS SHOWN ON A LOADING MANIFEST, ON AN ALUMINUM PALLET, REFERRED
TO AS "BUILDING" A PALLET, AND WHEN THE PALLET IS BUILT IT IS COVERED
WITH NETTING AND PLASTIC, IS WEIGHED AND IS THEN READY TO BE LOADED ON
AN AIRCRAFT. FREIGHT LOADERS LOCATE THE ITEMS ON EACH MANIFEST AND
PLACE THEM ON THE PALLET. OBVIOUSLY, THE NUMBER OF ITEMS, BOXED OR
CRATED, PER COMPLETE PALLET VARIES DEPENDING ON THE SIZE AND WEIGHT OF
THE INDIVIDUAL ITEMS BUT WITNESSES STATED THAT THE NORMAL RANGE WAS
BETWEEN 60 AND 120 ITEMS PER PALLET. EMPLOYEES IN THE AIR FREIGHT
TERMINAL ARE PAID FOR BREAKS, INCLUDING LUNCH, WHICH IS 20 MINUTES.
THE UNFAIR LABOR PRACTICES ALLEGED BROADLY FALL INTO THREE
CATEGORIES: A) DISPARAGING STATEMENTS MADE BY RESPONDENT ABOUT THE
UNION; B) PROHIBITION OF SOLICITATION OF UNION MEMBERSHIP, ETC. DURING
PAID HOURS OF EMPLOYMENT, INCLUDING BREAKS; AND C) ALLEGED DISPARATE
TREATMENT OF JOHN BEASLEY BECAUSE OF HIS ACTIVITY AS A UNION STEWARD
CULMINATING IN HIS DISCHARGE PRIOR TO COMPLETION OF HIS PROBATIONARY
PERIOD.
1. JOHN BEASLEY BEGAN WORK FOR RESPONDENT IN SEPTEMBER, 1978, AS A
WG-5 FREIGHT LOADER, AND WAS INITIALLY ASSIGNED TO THE DAY SHIFT. MR.
BEASLEY WAS PERMANENTLY TRANSFERRED TO THE GRAVEYARD SHIFT AFTER ABOUT
45 DAYS. ON DECEMBER 22, 1978, MR. BEASLEY WAS GIVEN HIS 90 DAY
EVALUATION AND RECEIVED A SCORE OF 97 (OUT OF 100). HIS SUPERVISOR ON
THE DAY SHIFT WAS MR. JAMES GIBSON.
2. IN JANUARY, 1979, MR. BEASLEY JOINED THE UNION AND WAS APPOINTED
SHOP STEWARD. FROM THE RECORD, IT APPEARS THAT MR. BEASLEY WAS THE
FIRST SHOP STEWARD IN THE AIR FREIGHT TERMINAL SINCE 1975. MR. BEASLEY
ADVISED MR. HAWES, A SUPERVISOR, IN JANUARY OF HIS APPOINTMENT AS
STEWARD AND THE UNION ALSO ADVISED RESPONDENT'S LABOR RELATIONS OFFICE
WHICH, BY MEMORANDUM DATED JANUARY 24, 1979, TRANSMITTED TO ALL
SUPERVISORS THE UNION STEWARDS LIST WHICH INCLUDED MR. BEASLEY (G.C.
EXH. 20, ATTACHMENT). HOWEVER, MR. BEASLEY ATTENDED AIRCRAFT FREIGHT
LOADING SCHOOL FROM THE LAST PART OF FEBRUARY OR THE FIRST PART OF
MARCH, 1979, SO THAT HIS ACTIVITY AS A STEWARD WAS UNEVENTFUL UNTIL
AFTER MID-MARCH, 1979.
3. IN FEBRUARY, 1979, MR. JOHN MILUS, A NEW EMPLOYEE, ASKED HIS
SUPERVISOR, MR. JAMES GIBSON, WHETHER THERE WAS UNION REPRESENTATION AND
MR. MILUS TESTIFIED THAT MR. GIBSON SAID THERE WAS A UNION BUT IT, " . .
. REALLY WASN'T WORTH THE PAPER IT WAS PRINTED ON, THAT $11.00 A MONTH,
IT WASN'T WORTH THE MONEY THAT WAS INVESTED IN IT." (TR. 172). /7/
4. IN MARCH, 1979, MR. GIBSON AGAIN EVALUATED MR. BEASLEY AND
TESTIFIED THAT HE GAVE HIM A 96 (OUT OF 100) WHICH, IF ROUNDED OFF MAY
HAVE BEEN 97. /8/ MR. GIBSON TESTIFIED THAT HE EVALUATED MR. BEASLEY AS
"BORDERLINE"; HOWEVER, MR. DECKER, GIBSON'S SUPERVISOR STATED THAT A
RATING OF 97 WAS ABOVE AVERAGE.
5. FOLLOWING THE MARCH, 1979, EVALUATIONS, AN EMPLOYEE, GEORGETTE
THOMPSON, CAME TO SEE MR. BEASLEY CONCERNING A POSSIBLE GRIEVANCE OVER
HER EVALUATION. MR. BEASLEY'S MEETING WITH MS. THOMPSON WAS
INTERRUPTED BY MR. DENNIS BRAY, A TEMPORARY WAREHOUSE SUPERVISOR, BUT
WHEN INFORMED BY MR. BEASLEY THAT HE WAS A UNION STEWARD AND WAS ENGAGED
IN UNION BUSINESS, MR. BRAY DID NOT ATTEMPT TO RESTRICT THIS MEETING.
THE NEXT MORNING, HOWEVER, MR. BRAY TESTIFIED THAT HE HAD GONE TO MR.
DALLAS CURLING, SECTION CHIEF, AND ASKED IF HE WERE AWARE THAT HE, BRAY,
HAD A UNION STEWARD ON HIS SHIFT, NAMELY MR. BEASLEY. MR. CURLING
RESPONDED THAT HE WAS NOT AWARE OF THAT BUT WOULD CHECK IT OUT. MR.
BRAY TESTIFIED THAT MR. CURLING STATED,
"HE TOLD ME THAT THE UNION WAS A JOKE, AND THEY HAD MANAGED TO REMOVE
ALL UNION STEWARDS IN
THE PAST, AND THEY WOULDN'T HAVE NO TROUBLE WITH BEASLEY." (TR.
216).
6. IN LATE MARCH, 1979, MR. BEASLEY CALLED MR. FISHER (HENRY A.), A
SUPERVISOR ON THE NIGHT (SWING) SHIFT /9/ AND TOLD HIM HE WOULD NOT BE
IN THAT NIGHT AND ASKED THAT HE RELAY THE MESSAGE TO HIS SUPERVISOR, MR.
GIBSON, WHEN HE CAME TO WORK AT MIDNIGHT; BUT MR. FISHER TOLD MR.
BEASLEY THAT HE WAS NOT ALLOWED TO TAKE A MESSAGE FOR ANOTHER SUPERVISOR
AND THAT HE WOULD NOT GIVE MR. GIBSON THE MESSAGE. MR. BEASLEY DID NOT
REPORT FOR THE GRAVEYARD SHIFT AND THE FOLLOWING NIGHT MR. GIBSON ASKED
WHY HE HAD NOT REPORTED THE PRECEEDING NIGHT AND MR. BEASLEY TOLD HIM HE
HAD CALLED AND HAD TALKED TO MR. FISHER; BUT, LATER MR. GIBSON HANDED
MR. BEASLEY A LETTER OF ORAL ADMONISHMENT FOR FAILURE TO CALL IN. MR.
BEASLEY LATER INFORMED MR. GIBSON THAT HE INTENDED TO FILE A GRIEVANCE
IF THE ORAL ADMONISHMENT WERE NOT REMOVED AND MR. GIBSON REMOVED THE
ORAL ADMONISHMENT.
7. PRIOR TO APRIL, 1979, MR. BEASLEY HAD SIGNED UP ONLY ONE NEW
MEMBER; BUT THEREAFTER HE SIGNED UP APPROXIMATELY 20 NEW UNION MEMBERS,
INCLUDING MR. JOHN BUCKHEISTER. THERE IS NO DOUBT THAT MR. GIBSON
LEARNED OF MR. BEASLEY'S ACTIVITY BUT THERE IS DISAGREEMENT AS TO WHEN
HE LEARNED THAT MR. BEASLEY WAS RECRUITING NEW MEMBERS. MR. GIBSON
DENIED THAT HE KNEW OF SUCH ACTIVITY UNTIL MR. MCNEELY BROUGHT IT TO HIS
ATTENTION ON MAY 24, 1979; DENIED THAT HE HAD DISCUSSED THE UNION WITH
EITHER MR. MILUS (SEE PARAGRAPH 3, ABOVE) OR WITH MR. BUCKHEISTER WHO
TESTIFIED THAT HE HAD JOINED THE UNION AND THAT, THEREAFTER, MR. GIBSON
HAD ASKED WHERE HE HAD GOT INFORMATION TO JOIN THE UNION AND THAT HE,
BUCKHEISTER, HAD RESPONDED THAT HE HAD GOT THE INFORMATION ABOUT THE
UNION FROM HIS UNION STEWARD, JOHN BEASLEY. ABOUT TWO WEEKS LATER, MR.
BUCKHEISTER TESTIFIED, MR. GIBSON AGAIN CAME TO HIM AND ASKED "IF I KNEW
MY UNION DUES WERE GOING TO GO UP" AND THAT HE, BUCKHEISTER, HAD SAID HE
DID NOT KNOW, BUT THAT HE DIDN'T CARE AND WAS GOING TO RETAIN HIS UNION
MEMBERSHIP. HOWEVER, MR. GIBSON ADMITTED THAT HE HAD "HEARD THAT A LOT
OF THE MEMBERS THERE THEN HAD JOINED" (TR. 33); MR. BRAY TESTIFIED THAT
MR. GIBSON HAD ASKED HIM IF HE KNEW THAT MR. BEASLEY HAD SOLICITED 40
PEOPLE INTO THE UNION AND HAD FURTHER ASKED IF HE, BRAY, WAS AWARE THAT
BEASLEY GOT TEN TO FIFTEEN DOLLARS FOR EVERY CONTACT THAT HE GOT FOR THE
UNION (TR. 224); MR. WILLIAM DECKER, FOREMAN IN CHARGE OF THE WAREHOUSE
SECTION, TESTIFIED THAT MR. GIBSON HAD TOLD HIM THAT A NUMBER OF
EMPLOYEES HAD JOINED THE UNION, AND MR. BEASLEY TESTIFIED THAT ON MAY
26, MR. GIBSON HAD APPROACHED HIM AND SAID HE UNDERSTOOD HE, BEASLEY,
HAD BEEN SIGNING A LOT OF PEOPLE INTO THE UNION "AND MAKING SOME BIG
BUCKS DOING THIS. AND I TOLD HIM THAT IT WAS TRUE AND . . . THAT FOR
EVERYBODY HE SIGNED INTO THE UNION HE'D GET TEN BUCKS TOO. AND HE JUST
LAUGHED AND WALKED OFF." (TR. 133). I DO NOT CREDIT MR. GIBSON'S
DENIALS AND, RATHER, CREDIT THE TESTIMONY OF MESSRS. MILUS, BUCKHEISTER,
BRAY AND DECKER AND FIND THAT MR. GIBSON WAS WELL AWARE OF MR. BEASLEY'S
ACTIVE SOLICITATION OF UNION MEMBERSHIP WELL PRIOR TO THE MCNEELY
INCIDENT OF MAY 24, 1979.
8. ON MAY 24, 1979, MR. MCNEELY WENT TO MR. GIBSON'S OFFICE AND
ASKED HIS OPINION ABOUT THE UNION. MR. MCNEELY TESTIFIED THAT MR.
GIBSON STOPPED HIM AND ASKED IF BEASLEY HAD BEEN TRYING TO GET HIM TO
JOIN THE UNION AND WHEN HE ASKED "WHY", MR. GIBSON HAD REPLIED, "BEASLEY
WASN'T SUPPOSED TO SAY ANYTHING ABOUT THE UNION AND I WASN'T SUPPOSED TO
LISTEN" (TR. 166) AND MR. GIBSON ASKED HIM TO GIVE A WRITTEN STATEMENT.
MR. GIBSON TESTIFIED THAT HE TOLD MCNEELY THAT A UNION IS "LIKE ANY
OTHER ORGANIZATION, IT'S GOOD IF IT'S USED PROPERLY, AND HE (MCNEELY)
TOLD ME THAT MR. BEASLEY HAD BEEN TALKING TO HIM ABOUT IT EARLIER, ABOUT
JOINING" (TR. 31) AND READILY ADMITTED THAT HE ASKED MR. MCNEELY TO GIVE
A STATEMENT BECAUSE IT "IS AGAINST THE REGULATIONS TO DISCUSS OR
PARTICIPATE IN IT, OR TRY TO PROCURE MEMBERS WHILE ON THE JOB." (TR.
31). MR. BEASLEY TESTIFIED THAT MR. MCNEELY HAD ASKED HIM ABOUT
JOINING THE UNION AND THAT HE HAD TOLD HIM HE WOULD GET HIM AN
APPLICATION ON THEIR BREAK. MR. BRAY TESTIFIED THAT MR. GIBSON TOLD HIM
HE HAD TOLD MCNEELY THAT THE UNION HAD TO REPRESENT HIM WHETHER HE WAS A
MEMBER OR NOT, THAT UNION DUES WERE HIGH AND THAT HE HATED TO SEE HIM
WASTE HIS MONEY (TR. 223-224). ON MAY 26, 1979, MR. SHARP INFORMED MR.
BEASLEY THAT HE WAS NOT TO DISCUSS ANY UNION MATTER WITH ANY EMPLOYEE
WHILE ON DUTY UNLESS AN APPROPRIATE TIME HAD BEEN SCHEDULED AND VERIFIED
BY HIM, SHARP, AND THAT HE WAS NOT TO PUT ANY LETTER OR ARTICLES FROM
THE UNION ON THE BULLETIN BOARD. MR. BEASLEY TESTIFIED THAT HE HAD SEEN
MR. MCNEELY IN THE SECTION OFFICE WITH MR. DECKER AND MR. GIBSON ON MAY
24 AND THAT SHORTLY BEFORE THE END OF THE SHIFT MR. GIBSON HAD
APPROACHED HIM AND TOLD HIM HE WAS "NOT TO SPEAK WITH ANY OF THE
EMPLOYEES ABOUT THE UNION" (TR. 132); THAT WHEN HE, BEASLEY, HAD
QUESTIONED SUCH LIMITATION, MR. GIBSON SAID, "DO YOU WANT THAT IN
WRITING?" AND WHEN HE, BEASLEY, SAID HE DID WANT IT IN WRITING, MR.
GIBSON HAD RESPONDED "YOU'VE GOT IT, BUDDY, YOU GOT IT." (TR. 132), AND
WALKED AWAY. ON MAY 26, WHEN MR. BEASLEY WAS CALLED TO MR. SHARP'S
OFFICE, MR. GIBSON WAS PRESENT WHEN MR. SHARP TOLD MR. BEASLEY THAT HE
WASN'T SUPPOSED TO DISCUSS THE UNION WITH THE EMPLOYEES AND WASN'T TO
POST MATERIAL ON THE BULLETIN BOARD AND MR. GIBSON SAID TO MR. SHARP "IF
I WERE YOU, I'D PUT THAT IN WRITING" (TR. 133). MR. BEASLEY TOLD MR.
SHARP THAT IF HE WAS BEING COUNSELED HE WANTED MR. GIBSON TO LEAVE.
AFTER MR. GIBSON HAD LEFT, MR. SHARP REPEATED HIS STATEMENT AND MR.
SHARP DID CONFIRM HIS STATEMENT IN A "NOTE FOR THE RECORD" (G.C. EXH.
15).
9. DESPITE RESPONDENT'S DISSEMINATION OF THE UNION STEWARD'S LIST ON
JANUARY 24, 1979 (G.C. EXH. 20), MR. GIBSON ADMITTED THAT ON MAY 2,
1979, HE HAD REFUSED TO RECOGNIZE MR. BEASLEY AS A UNION STEWARD BECAUSE
"I HAD NOTHING TO STATE THAT HE WAS IN FACT THE STEWARD" AND THAT HE HAD
TOLD MR. BEASLEY "I NEEDED CONFIRMATION." (TR. 40). A WEEK OR TWO
LATER, MR. GIBSON ANNOUNCED AT A MEETING OF ALL EMPLOYEES THAT MR.
BEASLEY WAS THE SHOP STEWARD.
10. RESPONDENT USES BOTH ELECTRIC AND GASOLINE FORKLIFTS. ON APRIL
24, 1979, MR. BEASLEY SIGNED OUT A GASOLINE FORKLIFT WHICH HE LATER
LOANED TO ANOTHER EMPLOYEE, ADAMS. THE MOTOR POOL ADVISED MR. GIBSON
THAT THE FORKLIFT HAD NOT BEEN FUELED AND ON APRIL 25, 1979, MR. GIBSON
GAVE MR. BEASLEY AN ORAL ADMONISHMENT FOR FAILING TO REFUEL HIS FORKLIFT
(G.C. EXH. 11). CONTRARY TO THE ASSERTION OF THE GENERAL COUNSEL, THE
RECORD SHOWS THAT RESPONSIBILITY FOR REFUELING A FORKLIFT RESTS WITH THE
PERSON WHO SIGNED FOR THE FORKLIFT. WERE IT OTHERWISE, ACCOUNTABILITY
FOR CHARGED OUT EQUIPMENT WOULD BE WHOLLY LACKING. WHETHER MR. ADAMS
SHARED RESPONSIBILITY FOR REFUELING A FORKLIFT HE WAS USING, MR. BEASLEY
WAS NOT RELIEVED OF HIS RESPONSIBILITY FOR THE FORKLIFT SO LONG AS IT
REMAINED CHARGED TO HIM. NEVERTHELESS, THE RECORD SHOWS NO OTHER
INSTANCE OF ANY OTHER EMPLOYEE HAVING BEEN DISCIPLINED BECAUSE HE HAD
NOT REFUELED A FORKLIFT ALTHOUGH THE RECORD SHOWS THAT ON THE SAME DAY,
APRIL 24, MR. BRENT HAYES HAD NOT REFUELED HIS FORKLIFT AND WAS NOT
DISCIPLINED, AND THE RECORD FURTHER SHOWED OTHER INSTANCES OF THE
FAILURE TO REFUEL A FORKLIFT, FOR WHICH NO DISCIPLINE WAS IMPOSED.
11. MR. MILUS TESTIFIED THAT ON MAY 2, 1979, MR. BEASLEY WAS
ASSIGNED TO WORK WITH MR. BRENT PAINTER ON A PALLET TO WHICH HE, MILUS,
HAD INITIALLY BEEN ASSIGNED. THE RECORD DOES NOT SHOW THAT ANY WORK HAD
BEEN DONE ON "BUILDING" THE PALLET WHEN MR. BEASLEY WAS ASSIGNED TO WORK
WITH PAINTER WHICH MR. GIBSON FIXED AS 12:30 OR 1:00 A.M. MR. BEASLEY
AND MR. PAINTER, BY THEIR TESTIMONY, WORKED ON THE PALLET FROM THE TIME
THEY RECEIVED THEIR WORK ASSIGNMENTS; HOWEVER, DURING THE SHIFT,
CERTAIN EMPLOYEES WERE CALLED TO THE OFFICE, ONE BY ONE, AND EACH WAS
GIVEN A SICK LEAVE ABUSE LETTER. THESE EMPLOYEES CAME TO MR. BEASLEY
ABOUT THE LETTERS AND MR. BEASLEY TOLD THEM HE WOULD TALK TO MR.
GIBSON. FOLLOWING THE LUNCH BREAK AT 4:00 A.M., A SAVINGS BOND FILM WAS
SHOWN, A DISCUSSION OF THE PROCEDURE TO SIGN UP FOR BOND DEDUCTIONS
FOLLOWED AND THEN MR. GIBSON OPENED THE MEETING FOR FURTHER QUESTIONS,
AT WHICH TIME AN EMPLOYEE ASKED MR. GIBSON ABOUT THE SICK LEAVE ABUSE
LETTERS AND MR. BEASLEY ASKED MR. GIBSON IF THE EMPLOYEES HAD BEEN
ADVISED OF THEIR RIGHT TO REPRESENTATION AND OF THEIR RIGHT TO APPEAL.
MR. GIBSON TOLD MR. BEASLEY HE DID NOT KNOW BUT WOULD FIND OUT AND GET
BACK TO HIM LATER. TWENTY TO THIRTY MINUTES LATER, MR. BEASLEY
TESTIFIED THAT MR. GIBSON DID RETURN AND INFORMED HIM THAT IF THESE
PEOPLE HAD A PROBLEM THEY SHOULD CONTACT THEIR UNION STEWARD, AT WHICH
TIME BEASLEY SAID HE TOLD MR. GIBSON HE WAS THE UNION STEWARD AND THAT
MR. GIBSON REPLIED "THAT I COULD GO FLY A KITE" (TR. 118). AT ABOUT
7:00 A.M. MR. GIBSON CALLED MR. BEASLEY TO THE OFFICE AND GAVE HIM AN
ADMONISHMENT FOR TAKING IN EXCESS OF SIX HOURS TO COMPLETE ONE PALLET,
WHICH MR. GIBSON CONFIRMED IN WRITING BY A DOCUMENT ENTITLED
"SUPPLEMENTAL SHEET TO AF 971". (G.C. EXH. 12). MR. GIBSON ADMITTED
THAT THE LUNCH BREAK-- BOND MOVIE-- MEETING-- HAD NOT ENDED UNTIL 5:00
A.M. OR 5:15 A.M., I.E., LUNCH, ETC., LASTED 1 HOUR TO 1 1/4 HOUR.
NOT ONLY WAS MR. GIBSON'S ARITHMETIC FAULTY, BASED ON HIS OWN
TESTIMONY AS TO WHEN MR. BEASLEY WAS ASSIGNED TO THE PALLET (12:30 OR
1:00 A.M.) THE DURATION OF THE BREAK (4:00 A.M. TO 5:00 OR 5:15 A.M.)
AND THE TIME HE CALLED MR. BEASLEY TO HIS OFFICE; BUT MR. BEASLEY,
DESPITE MR. GIBSON'S REFUSAL TO RECOGNIZE HIS STATUS AS A STEWARD, SPENT
SOME TIME WITH EMPLOYEES WHO HAD RECEIVED SICK LEAVE ABUSE LETTERS AND
WITH MR. GIBSON IN AN EFFORT, ALBEIT FUTILE, TO DISCUSS THE SICK LEAVE
ABUSE LETTERS. OBVIOUSLY, IF MR. BEASLEY WERE DESERVING OF AN
ADMONISHMENT FOR TAKING IN EXCESS OF SIX HOURS TO COMPLETE ONE PALLET
THEN MR. PAINTER, WHO WAS ASSIGNED TO THE SAME PALLET, WAS EQUALLY
GUILTY AND SHOULD HAVE BEEN ADMONISHED FOR THE SAME LACK OF
PRODUCTIVITY; BUT MR. PAINTER WAS NOT SO TREATED. MR. PAINTER
TESTIFIED, QUITE CREDIBLY, THAT HE WAS GIVEN AN ADMONISHMENT; HOWEVER,
HE STATED THAT MR. GIBSON TOLD HIM IF HIS WORK IMPROVED IN THE FUTURE
THE ADMONISHMENT WOULD BE REMOVED FROM HIS RECORD AND THAT TWO OR THREE
DAYS LATER MR. GIBSON TOLD HIM HE HAD TORN UP THE LETTER OF ADMONISHMENT
(MR. PAINTER ALSO TESTIFIED THAT HE HAD BEEN SHOWN THE LETTER OF
ADMONISHMENT BUT DID NOT RECALL WHETHER HE HAD BEEN ASKED TO SIGN IT).
MR. BRAY TESTIFIED THAT MR. GIBSON HAD TOLD HIM THAT PAINTER AND BEASLEY
HAD TAKEN SIX HOURS TO COMPLETE A PALLET AND HE WAS GOING TO DISCIPLINE
THEM; THAT HE DID NOT WANT TO DISCIPLINE PAINTER BUT HAD NO CHOICE,
SINCE THEY WERE WORKING TOGETHER; BUT THAT HE WOULD REMOVE PAINTER'S
LETTER AT A LATER DATE. INCREDIBLY, MR. GIBSON DENIED THAT HE GAVE MR.
PAINTER AN ADMONISHMENT.
THE RECORD DOES, INDEED, SHOW THAT MR. PAINTER HAD STARTED WORK ON
ANOTHER PALLET AND THAT MR. BEASLEY WAS NOT WITH HIM. /10/ MR. GIBSON'S
TESTIMONY THAT AT 7:00 A.M. HE SAW MR. BEASLEY SITTING DOWN WITH HIS
FEET ON A DESK; THAT THE PALLET HAD NOT BEEN FINISHED, IN THAT PLASTIC
HAD NOT BEEN PUT ON IT, IT HAD NOT BEEN NETTED DOWN, AND WAS NOT,
THEREFORE, READY FOR GROSS WEIGHT, WAS WHOLLY CREDIBLE. NEVERTHELESS,
MR. GIBSON DID NOT ADMONISH MR. BEASLEY FOR ANY OF THESE REASONS.
MOREOVER, THE RECORD FURTHER SHOWS THAT THE WORK OF PUTTING PLASTIC ON
PALLETS AND NETTING THEM DOWN IS ASSIGNED TO LOWER RATED EMPLOYEES;
THAT A LOT OF PEOPLE WERE SITTING AROUND THAT NIGHT (TR. 205); AND THAT
MR. MILUS TESTIFIED THAT HE COMPLETED ONLY ONE PALLET THE SAME NIGHT AND
WAS NOT DISCIPLINED.
12. ON MAY 6, 1979, MR. BEASLEY WAS PROMOTED FROM WG-5 TO WG-7.
13. ON MAY 9, 1979, BEFORE THE COMMENCEMENT OF HIS SHIFT, MR.
BEASLEY CALLED AND ADVISED MR. IVY GARNER, A SUPERVISOR /11/ ON THE
SWING SHIFT (G.C. EXH. 8), THAT HE WOULD BE OUT ON SICK LEAVE THAT
NIGHT. RESPONDENT CONTENDS THAT MR. BEASLEY FAILED TO COMPLY WITH
APPLICABLE REGULATIONS (SEE, G.C. EXH. 2, ARTS. III, XXIII; AFR 40-630;
AFLC SUPP. 1, G.C. EXH. 5; G.C. EXH. 6, LEAVE ADMINISTRATION), WHICH,
IT IS ASSERTED, PROVIDE THAT SUCH REQUESTS BE MADE TO THE EMPLOYEE'S
SUPERVISOR. INASMUCH AS MR. GIBSON ADMITTED KNOWLEDGE THAT MR. BEASLEY
WOULD NOT BE IN AND HAD REQUESTED THAT HE BE PUT ON SICK LEAVE, WHICH HE
ATTRIBUTED TO MR. MILUS, IT IS UNNECESSARY TO RESOLVE THE DISPUTE AS TO
WHETHER MR. GARNER, WHO DID NOT TESTIFY, LEFT A WRITTEN NOTE, AS MR.
BRAY TESTIFIED, WHICH MESSRS. SHARP AND GIBSON DENIED HAVING SEEN.
ASSUMING, BUT WITHOUT DECIDING, THAT MESSRS. SHARP AND GIBSON DID NOT
SEE A NOTE, I FIND, AS MR. BRAY ALSO TESTIFIED, THAT MR. GARNER TOLD HIM
THAT BEASLEY HAD CALLED IN AND THAT HE HAD SO INFORMED MR. SHARP WHO,
IN TURN, TOLD MR. GIBSON AND THAT MR. GIBSON TOLD MR. SHARP THAT IF
BEASLEY DID NOT CALL IN WITHIN THE NEXT TWO HOURS TO MARK HIM AWOL. NOT
ONLY DID I FIND MR. BRAY'S TESTIMONY IN THIS REGARD WHOLLY CREDIBLE;
BUT THE INTENTION TO CARRY MR. BEASLEY AWOL UNLESS HE PERSONALLY CALLED
MR. SHARP BOTH EXPLAINS AND IS CONFIRMED BY THE TESTIMONY OF MESSRS.
HAYES AND BEASLEY. THUS, MR. HAYES TESTIFIED THAT WORD WAS GOING AROUND
THAT MR. BEASLEY HAD NOT CALLED IN AND HE CALLED MR. BEASLEY TO WARN
HIM; MR. BEASLEY TESTIFIED THAT THE EMPLOYEE, HE SAID MR. MILUS CALLED
RATHER THAN HAYES (TR. 120), TOLD HIM "HE HAD HEARD THAT THEY WERE CARRY
ME AWOL THAT NIGHT FOR NOT CALLING IN" (TR. 120) AND THAT HE IMMEDIATELY
HUNG UP AND CALLED, SPEAKING FIRST TO MR. GIBSON AND EVENTUALLY TO MR.
SHARP. MR. BEASLEY PLACED THE TIME OF HIS CALL TO MR. GIBSON AT 2:30
A.M. (TR. 121).
ON MAY 12, 1979, MR. SHARP ISSUED AN ORAL ADMONISHMENT TO MR.
BEASLEY "FOR NOT REPORTING YOUR ABSENCE ON MAY 9, 1979, WITHIN (2) TWO
HOURS OF THE BEGINNING OF YOUR WORK SHIFT ACCORDING TO ESTABLISHED
PROCEDURES. IT WAS 03:30 WHEN YOU DID CALL." (G.C. EXH. 14). FROM ALL
THE TESTIMONY, I CREDIT MR. BEASLEY'S TESTIMONY THAT HE CALLED MR.
GIBSON AT 2:30 A.M. /12/
14. ON MAY 23, 1979, THE GRAVEYARD SHIFT PRODUCED A HIGH VOLUME OF
WORK AND MR. BRAY RECOMMENDED THAT ALL EMPLOYEES INVOLVED, INCLUDING MR.
BEASLEY, RECEIVE A LETTER OF COMMENDATION. LETTERS OF COMMENDATION WERE
SUBSEQUENTLY ISSUED TO ALL OF THE EMPLOYEES CONCERNED EXCEPT MR.
BEASLEY. WHEN MR. BRAY ASKED MR. GIBSON ABOUT BEASLEY'S LETTER MR. BRAY
TESTIFIED THAT MR. GIBSON:
" . . . TOLD ME TO FORGET ABOUT IT, TO IGNORE IT.
"Q. DID HE EXPLAIN WHY?
"A. YES, HE SAID HE DIDN'T WANT BEASLEY TO HAVE A LETTER, IF AT ALL
POSSIBLE." (TR. 227).
I SPECIFICALLY REJECT MR. GIBSON'S TESTIMONY THAT HE REFUSED TO GIVE
MR. BEASLEY A LETTER OF COMMENDATION BECAUSE MR. BRAY INFORMED HIM THAT
MR. BEASLEY DIDN'T CONTRIBUTE AS MUCH AS OTHERS (TR. 30) AS WHOLLY
UNSUPPORTED AND THOROUGHLY CONTRADICTED BY THE TESTIMONY OF MR. BRAY
WHICH I CREDIT IN THIS REGARD.
15. ON JUNE 5, 1979, NEAR THE END OF THE SHIFT, MR. BEASLEY REFUSED
TO CLEAN UP HIS WORK AREA AND EMPTY THE TRASH CANS ASSERTING THAT SUCH
WORK WAS NOT IN HIS JOB DESCRIPTION. MR. BEASLEY'S TESTIMONY THAT NEW
JOB DESCRIPTIONS WERE ISSUED ON JUNE 3, 1979, IS UNSUPPORTED; MR.
DECKER CREDIBLY TESTIFIED THAT HE WAS NOT AWARE OF ANY CHANGE IN THE JOB
DESCRIPTION (TR. 343); AND, ACCORDINGLY, I REJECT MR. BEASLEY'S
TESTIMONY THAT NEW JOB DESCRIPTIONS HAD BEEN ISSUED AND/OR THAT ANY
EMPLOYEE HAD COME TO HIM ABOUT THE JOB DESCRIPTION. I FURTHER REJECT
MR. BEASLEY'S TESTIMONY THAT HE WAS PERFORMING SUCH DUTIES ON JUNE 5,
1979. RATHER, I CREDIT MR. GIBSON'S TESTIMONY, FULLY SUPPORTED BY THE
TESTIMONY OF MR. DECKER, AS TO THIS OCCURRENCE AND FIND, AS MR. GIBSON
TESTIFIED, THAT THE FOLLOWING OCCURRED.
. . . I (GIBSON) HAD INSTRUCTED ALL THE EMPLOYEES TO START CLEANING
UP; AT THE TIME I WAS
WALKING AROUND THE AREA, I SEEN THE CLEANUP WAS BEING DONE, AND I
NOTICED THAT MR. BEASLEY WAS
STANDING AGAINST ONE OF THE TABLES AND READING A PAPER, AND . . . I
TOLD HIM TO HELP EVERYONE
CLEAN UP, SWEEP THE FLOOR, EMPTY SOME TRAYS AND EMPTY THE TRASH CANS.
"AFTER THAT I WALKED OFF AND WHEN I CAME BACK ABOUT FIVE OR TEN
MINUTES LATER, MR. BEASLEY
WAS STILL STANDING THERE READING A NEWSPAPER.
"AND I TOLD HIM AGAIN TO START CLEANING UP, HELP EVERYONE CLEAN UP,
AND HE SAYS, 'I WON'T,
I WILL NOT HELP THEM BECAUSE IT'S NOT IN MY JOB DESCRIPTION.'
"I INFORMED HIM THAT IT WAS ONE OF HIS DUTIES TO MAINTAIN HIS AREA.
AND HE REFUSED TO DO
IT, AND AT THAT TIME HE TOLD ME HE'D LIKE TO SPEAK TO MR. DECKER,
AND I SAID 'OKAY'.
"I WENT INTO THE OFFICE AND INFORMED MR. DECKER OF WHAT HAD HAPPENED,
AND HE DISCUSSED IT
WITH MR. BEASLEY." (TR. 79-80).
MR. DECKER TESTIFIED, IN PART, THAT:
"A. I ASKED HIM (BEASLEY) TO EXPLAIN THE MAINTENANCE AND
SPECIFICALLY WHAT GIBSON HAD
ASKED HIM TO DO. AND HE TOLD ME THAT GIBSON HAD ASKED HIM TO PICK UP
THE PAPER CUPS, COKE
CANS AND EMPTY THE TRASH IN HIS WORK AREA.
"Q. AND DID HE SAY ANYTHING AS TO WHETHER HE WAS GOING TO OR NOT
GOING TO DO THAT?
"A. HE TOLD ME THAT HE WASN'T GOING TO DO IT, THAT IT WAS NOT IN HIS
JOB DESCRIPTION AND
ASKED ME TO REVIEW HIS JOB DESCRIPTION.
"Q. ALL RIGHT. DID YOU DO SO, SIR?
"A. YES, I DID. THE SPECIFIC REQUIREMENT WASN'T SPELLED OUT IN HIS
JOB DESCRIPTION, THAT
HE WOULD PICK UP PAPER CUPS OR EMPTY THE TRASH.
Q. ALL RIGHT. WHAT DID YOU ADVISE MR. BEASLEY?
"A. I ADVISED MR. BEASLEY THAT, BECAUSE IT WASN'T LISTED IN HIS JOB
DESCRIPTION, I WOULD
HAVE TO FURTHER CHECK IT OUT, GET BACK WITH HIM CONCERNING THE
REQUIREMENT TO CLEAN UP IN HIS
WORK AREA. AND THAT, IN THE MEANTIME, THAT HE NOT DISOBEY HIS
SUPERVISOR'S INSTRUCTIONS, BUT
COMPLAIN ABOUT THE RIGHT OR WRONG AFTER THE ACCOMPLISHMENT OF THE
DUTIES.
"Q. IN OTHER WORDS, DO THE JOB AND GRIEVE IT LATER?
"A. RIGHT." (TR. 329-330).
AS THE SHIFT WAS THEN ENDING, MR. BEASLEY DID NOT RETURN TO HIS WORK
AREA; HOWEVER, THERE IS NOTHING IN THE RECORD TO INDICATE THAT MR.
BEASLEY ON ANY WORK DAY THEREAFTER FAILED OR REFUSED TO PERFORM SUCH
DUTIES. THE RECORD DOES SHOW THAT MR. BEASLEY HAD, AT LEAST, EMPTIED
TRASH CANS PRIOR TO JUNE 5, 1979.
ON JUNE 16, 1979, MR. BEASLEY WAS GIVEN A LETTER OF TERMINATION (G.C.
EXH. 9, ATTACHMENT 1) WHICH STATED THAT THE ACTION WAS BASED ON THE
FOLLOWING:
A) VETERAN'S READJUSTMENT APPOINTMENT PLAN TRAINING AGREEMENT;
B) FAILURE TO REFUEL A FORKLIFT ON APRIL 24, 1979; MORE THAN SIX
HOURS TO COMPLETE ONE PALLET ON MAY 3, 1979; COUNSELLING ON MAY 26,
1979, FOR SPENDING DUTY TIME TO CONDUCT NON-OFFICIAL BUSINESS;
INSUBORDINATE AND INSOLENT BEHAVIOR BY FAILING TO COMPLY WITH PROPER
ORDERS AND INSTRUCTIONS; ADMONISHMENT ON MAY 12, 1979, FOR NOT
REPORTING ABSENCE WITHIN TWO HOURS OF THE BEGINNING OF THE SHIFT; AND
ON JUNE 5, 1979, REFUSED TO CARRY OUT A PROPER WORK ASSIGNMENT TO HELP
CLEAN UP WORK AREA.
CONCLUSIONS
I. DISPARAGING STATEMENTS.
THE STATEMENTS, WHICH I HAVE FOUND THAT SUPERVISOR GIBSON MADE, WERE,
IN SUBSTANCE:
- THE UNION ISN'T WORTH THE PAPER IT IS PRINTED ON; $11.00 A MONTH
ISN'T WORTH THE MONEY INVESTED IN IT.
- DO YOU KNOW YOUR UNION DUES ARE GOING UP?
- THE UNION HAS TO REPRESENT YOU WHETHER YOU ARE A MEMBER OR NOT,
DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR MONEY.
SECTION 2 OF THE STATUTE PROVIDES, IN PART, THAT:
"EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM JOIN, OR ASSIST ANY LABOR
ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. . . . "
(5 U.S.C. 7102)
SECTION 16(A)(1) PROVIDES AS FOLLOWS:
"(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 U.S.C. 7116(A)(1))
EXECUTIVE ORDER 11491 CONTAINED NO "FREE SPEECH" PROVISION. THE
STATUTE DOES; BUT, IS UNLIKE SECTION 8(C) OF THE NATIONAL LABOR
RELATIONS ACT, 29 U.S.C. 158(C). SENATE BILL 2640, SEC. 7216, AS
REPORTED, LEGISLATIVE HISTORY OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, TITLE VII OF THE CIVIL SERVICE REFORM ACT OF 1978,
SUBCOMMITTEE ON POSTAL PERSONNEL AND MODERNIZATION OF THE COMMITTEE ON
POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, COMMITTEE PRINT
NO. 96-7, 96TH CONG., 1ST SESS. (HEREINAFTER "LEG. HISTORY"), 494, 526,
HAD CONTAINED NO "FREE SPEECH" PROVISION; BUT ON AUGUST 24, 1978,
SENATOR HATCH PROPOSED AN AMENDMENT WHICH, AS AMENDED, WAS ADOPTED BY
THE SENATE AS SEC. 7216(G) OF S. 2640. THE FOLLOWING COLLOQUY ON THE
FLOOR OF THE SENATE IS MOST INSTRUCTIVE:
"MR. JAVITS. MOVING NOW TO . . . THE SO CALLED FREE SPEECH
AMENDMENT, THAT TROUBLES ME FOR
THIS REASON, AND I SHALL COMMUNICATE MY CONCERN TO THE SENATOR AND HE
WILL GIVE ME HIS VIEWS
AND HIS EXPLANATION. IT IS A FACT THAT WE CONSIDER THE FEDERAL
GOVERNMENT IN THIS BILL AS AN
EMPLOYER, BUT IT IS ALSO THE FEDERAL GOVERNMENT.
"MR. HATCH. THAT IS TRUE.
"MR. JAVITS. AND YOU CANNOT STRIKE AGAINST THE FEDERAL GOVERNMENT,
SO, IF YOU WORK FOR THE
FEDERAL GOVERNMENT, YOU GIVE UP SOMETHING . . .
"THE UNITED STATES HAS LAWS FAVORING UNION ORGANIZATION, OR AT LEAST
MAKING IT POSSIBLE
UNDER THE PROPRIETY OF LAW.
"IS IT NOT A FACT THAT, UNDER THIS FREE SPEECH AMENDMENT, AN
INDIVIDUAL MANAGER, SPEAKING
PERSONALLY, COULD SAY THAT HE DOES NOT LIKE UNIONS AND HE DOES NOT
THINK THEY ARE A VERY GOOD
IDEA AND HE DOES NOT THINK THEY WILL DO ANYBODY WHO JOINS THEM ANY
GOOD. THAT WOULD STILL BE
WITHIN THE PURVIEW OF THIS AMENDMENT, WOULD IT NOT?
"MR. HATCH. THAT IS CORRECT.
"MR. JAVITS. BECAUSE IT DOES NOT INCLUDE A THREAT OF REPRISAL OR
FORCE OR PROMISE OF
BENEFIT.
"MR. HATCH. THAT IS RIGHT. IN OTHER WORDS, HE MAY EXPRESS HIS
PERSONAL GOOD FAITH
OPINION, BUT HE CANNOT EXPRESS A THREAT OF REPRISAL OR FORCE OR
PROMISE OF BENEFIT WHICH IS
THE PRESENT LAW. BUT HE MAY TELL WHAT HE PERSONALLY FEELS WITHOUT
FEAR OF AN UNFAIR LABOR
PRACTICE CHARGE.
(SENATOR JAVITS DISCUSSED A LACK OF CONSISTENCY WITH SECTION
7216(A)(1) AND (2) AND, ULTIMATELY PROPOSED THE FOLLOWING AMENDMENT TO
SENATOR HATCH'S AMENDMENT, WHICH WAS AGREED TO.)
"MR. JAVITS. WOULD THE SENATOR CONSIDER THAT' IN VIEW OF HIS INTENT,
ADDING TO THE END OF
THE AMENDMENT THE FOLLOWING:
'SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE
OF BENEFIT AND IS NOT
MADE UNDER COERCIVE CONDITIONS.'
"MR. HATCH. YES, THAT IS FINE.
"MR. JAVITS. ALL RIGHT.
"MR. HATCH. I WOULD ACCEPT THAT LANGUAGE.
"MR. PRESIDENT, I MOVE THAT MY AMENDMENT BE MODIFIED TO ACCEPT THAT
PARTICULAR LANGUAGE.
. . . .
"THE PRESIDING OFFICER. THE SENATOR HAS THE RIGHT.
"THE AMENDMENT IS SO MODIFIED." (CONG. RECORD, AUG. 24, 1978, LEG.
HISTORY
PP. 1025-1028). (SENATE HATCH'S AMENDMENT WAS ADOPTED (1035) AND S.
2640, AS AMENDED, WAS
PASSED (1038-1039).
SECTION 7216(G) OF S. 2640, AS PASSED BY THE SENATE, PROVIDED AS
FOLLOWS:
"(G) THE EXPRESSION OF ANY PERSONAL VIEWS, ARGUMENT, OPINION, OR THE
MAKING OF ANY
STATEMENT SHALL NOT (I) CONSTITUTE OR BE EVIDENCE OF ANY UNFAIR LABOR
PRACTICE UNDER ANY OF
THE PROVISIONS OF THIS CHAPTER OR (II) CONSTITUTE GROUNDS FOR, OR
EVIDENCE JUSTIFYING, SETTING
ASIDE THE RESULTS OF ANY ELECTION CONDUCTED UNDER ANY PROVISION OF
THIS CHAPTER, IF SUCH
EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF
BENEFIT OR UNDUE COERCIVE
CONDITIONS" (THE WORDS "AND IS NOT MADE UNDER", AS SUGGESTED BY
SENATOR JAVITS AND AGREED TO
BY SENATOR HATCH AND, PRESUMABLY, WERE ADDED, NEVERTHELESS,
DISAPPEARED IN THE PRINTED VERSION
OF S. 2640 AND THE CONCLUDING PHRASE BECAME "OR UNDUE COERCIVE
CONDITIONS".) (LEG. HISTORY
PP. 585-586).
THE HOUSE BILL CONTAINED NO COMPARABLE PROVISION AND THE LANGUAGE
AGREED UPON IN CONFERENCE, WHICH BECAME SUBSECTION (E) IN THE STATUTE,
WAS, AND IS, DIFFERENT. THUS SEC. 16(E) PROVIDES AS FOLLOWS:
"(E) THE EXPRESSION OF ANY PERSONAL VIEW ARGUMENT, OPINION OR THE
MAKING OF ANY STATEMENT
WHICH--
"(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND
ENCOURAGES EMPLOYEES TO
EXERCISE THEIR RIGHT TO VOTE IN SUCH ELECTION,
"(2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
STATEMENT MADE BY ANY
PERSON, OR
"(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS
AND REPRESENTATION.
SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
OR PROMISE OF BENEFIT
OR WAS NOT MADE UNDER COERCIVE CONDITIONS (A) CONSTITUTE AN UNFAIR
LABOR PRACTICE UNDER ANY
PROVISION OF THIS CHAPTER, OR (B) CONSTITUTE GROUNDS FOR THE SETTING
ASIDE OF ANY ELECTION
CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER."
THE CONFERENCE REPORT (NO. 95-1717, 95TH CONG., 2ND SESS.) STATES AS
FOLLOWS:
"C. EXPRESSION OF PERSONAL VIEWS
"SENATE SECTION 7216(G) STATES THAT THE EXPRESSION OF . . . ANY
PERSONAL VIEWS, ARGUMENT OR
OPINION, OR THE MAKING OF ANY STATEMENT SHALL NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE OR
INVALIDATE AN ELECTION IF THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OF
BENEFIT OR UNDUE COERCIVE CONDITIONS.
"THE HOUSE BILL CONTAINS NO COMPARABLE PROVISIONS.
"THE HOUSE RECEDES TO THE SENATE WITH AN AMENDMENT SPECIFYING IN
GREATER DETAIL THE TYPES
OF STATEMENTS THAT MAY BE MADE UNDER THIS SECTION. THE PROVISION
AUTHORIZES STATEMENTS
ENCOURAGING EMPLOYEES TO VOTE IN ELECTIONS, TO CORRECT THE RECORD
WHERE FALSE OR MISLEADING
STATEMENTS ARE MADE, OR TO CONVEY THE GOVERNMENT'S VIEWS ON
LABOR-MANAGEMENT RELATIONS. THE
WORDING OF THE CONFERENCE REPORT IS INTENDED TO REFLECT THE CURRENT
POLICY OF THE CIVIL
SERVICE COMMISSION WHEN ADVISING AGENCIES ON WHAT STATEMENTS THEY MAY
MAKE DURING AN ELECTION,
AND TO CODIFY CASE LAW UNDER EXECUTIVE ORDER 11491, AS AMENDED, ON
THE USE OF STATEMENTS IN
ANY UNFAIR LABOR PRACTICE PROCEEDING." (LEG. HISTORY, P. 824).
BECAUSE OF THE VERY DIFFERENT SCOPE OF SECTION 8(C) OF THE NLRA, /13/
DECISIONS IN THE PRIVATE SECTOR ARE OF LITTLE OR NO VALUE IN DETERMINING
THE PERMISSIBLE SCOPE OF EXPRESSION OF OPINION UNDER SECTION 16(E) OF
THE STATUTE. SENATOR JAVITS, ANTICIPATING ALMOST PRECISELY THE
SUBSTANCE OF THE COMMENTS MADE BY MR. GIBSON, ESSENTIALLY THAT THE UNION
WAS WORTHLESS, ELICITED THE AGREEMENT FROM SENATOR HATCH, WHO HAD
PROPOSED THE "FREE SPEECH" AMENDMENT IN THE SENATE, THAT SUCH
EXPRESSIONS OF PERSONAL OPINION WOULD HAVE BEEN WITHIN THE PURVIEW OF
SENATOR HATCH'S AMENDMENT. THE MODIFICATION SUGGESTED BY SENATOR
JAVITS, AND ACCEPTED BY SENATOR HATCH, ADDED THE FURTHER LIMITATION,
NAMELY, THAT THE STATEMENT MUST NOT HAVE BEEN MADE UNDER COERCIVE
CONDITIONS; BUT, CLEARLY, IT WAS NOT INTENDED UNDER SEC. 7216(G) OF S.
2640, AS PASSED BY THE SENATE, THAT A STATEMENT OF A PERSONAL OPINION
THAT A UNION WAS WORTHLESS WOULD CONSTITUTE OR BE EVIDENCE OF AN UNFAIR
LABOR PRACTICE "IF SUCH EXPRESSION CONTAINS NO THREAT OF REPRISAL OR
FORCE OR PROMISE OF BENEFIT OR UNDUE COERCIVE CONDITIONS".
THE LANGUAGE OF SEC. 16(E) IS THE STATUTE, AS ENACTED, CAN BE READ
AS,
"THE EXPRESSION OF ANY PERSONAL VIEW ARGUMENT, OPINION . . . SHALL
NOT, IF THE EXPRESSION
CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS
NOT MADE UNDER COERCIVE
CONDITIONS, (A) CONSTITUTE AN UNFAIR LABOR PRACTICE . . .
OR
" . . . THE MAKING OF ANY STATEMENT WHICH--
"(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION OR ENCOURAGES
EMPLOYEE TO EXERCISE
THEIR RIGHT TO VOTE IN SUCH ELECTION,
"(2) CORRECT THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
STATEMENT MADE BY ANY
PERSON, OR
"(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS
AND REPRESENTATION.
SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
OR PROMISE OF BENEFIT
OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A) CONSTITUTE AN UNFAIR
LABOR PRACTICE . . . "
THE WORD "WHICH" IN SEC. 16(E) COULD BE READ AS MODIFYING "PERSONAL
VIEW", "ARGUMENT", "OPINION", SO THAT, FOR EXAMPLE:
"THE EXPRESSION OF ANY PERSONAL VIEW . . . WHICH
"(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION . . .
"(2) CORRECTS THE RECORD . . .
"(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY . . .
SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OR REPRISAL OR FORCE
OR PROMISE OF BENEFIT
OR WAS NOT MADE UNDER COERCIVE CONDITIONS (A) CONSTITUTE AN UNFAIR
LABOR PRACTICE . . . "
HOWEVER, I CONCLUDE THAT THE FORMER "READING" REFLECTS THE INTENT AND
PURPOSE OF CONGRESS, I.E., THAT SEC. 16(E) ADDRESSES TWO SEPARATE AND
DISTINCT SITUATIONS. FIRST, THE EXPRESSION OF ANY PERSONAL VIEW,
ARGUMENT OR OPINION, EXCLUDING REPRESENTATIONAL ELECTIONS, WHICH IF THE
EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISE OR BENEFIT
AND IS NOT MADE UNDER COERCIVE CONDITIONS, SHALL NOT CONSTITUTE AN
UNFAIR LABOR PRACTICE. SECOND, STATEMENTS, ESPECIALLY BY AGENCY
MANAGEMENT, IN RELATION TO REPRESENTATIONAL ELECTIONS WHICH ARE
PROTECTED ONLY IF SUCH STATEMENT (1) PUBLICIZES THE FACT OF AN ELECTION
AND ENCOURAGES EMPLOYEES TO VOTE, (2) CORRECTS THE RECORD WITH RESPECT
TO ANY FALSE OR MISLEADING STATEMENT, OR (3) INFORMS EMPLOYEES OF THE
GOVERNMENT'S POLICY RELATING TO LABOR-MANAGEMENT RELATIONS AND
REPRESENTATION, AND SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OR BENEFIT AND IS NOT MADE UNDER COERCIVE
CONDITIONS CONSTITUTE AN UNFAIR LABOR PRACTICE OR CONSTITUTE GROUNDS FOR
SETTING ASIDE AN ELECTION.
THIS CONSTRUCTION OF SEC. 16(E) IS COMPELLED BY: I) THE GENESIS OF
THE "FREE SPEECH" PROVISION IN THE SENATE BILL, AND THE CLEAR STATEMENT
IN THE CONFERENCE REPORT THAT, "THE HOUSE RECEDES TO THE SENATE", ALBEIT
"WITH AN AMENDMENT SPECIFYING IN GREATER DETAIL THE TYPES OF STATEMENTS
THAT MAY BE MADE UNDER THIS SECTION." THAT THE CONFEREES WERE DEEPLY
CONCERNED ABOUT THE EFFECT OF "FREE SPEECH" IN THE CONTEXT OF
REPRESENTATION ELECTIONS IS BEYOND QUESTION. FROM THE INCEPTION OF
EXECUTIVE ORDER 11491, IT HAD BEEN ESTABLISHED POLICY THAT AGENCY
MANAGEMENT MUST MAINTAIN A POSTURE OF NEUTRALITY IN ANY REPRESENTATION
ELECTION CAMPAIGN. CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, 1 A/SLMR
27, N. 17(1970); ANTILLES CONSOLIDATED SCHOOLS, ROOSEVELT ROADS, CEIBA,
PUERTO RICO A/SLMR NO. 349, 4 A/SLMR 114 (1974). OBVIOUSLY, THE
CONFEREES INTENDED TO INSURE THAT AGENCY MANAGEMENT REMAIN NEUTRAL IN
ANY REPRESENTATION ELECTION CAMPAIGN, AND, ACCORDINGLY, STATEMENTS IN A
REPRESENTATIONAL ELECTION CONTEXT WERE NARROWLY LIMITED. SEE, STATEMENT
OF CONGRESSMAN FORD, OCTOBER 14, 1978, LEG. HISTORY, P. 996. ALTHOUGH
THIS LIMITATION, I.E., "THE MAKING OF ANY STATEMENT WHICH-- (1)
PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
EMPLOYEES TO EXERCISE THEIR RIGHT TO VOTE IN SUCH ELECTION, (2) CORRECTS
THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING STATEMENT MADE BY ANY
PERSON, OR (3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS AND REPRESENTATION", WAS INSERTED IN THE
MIDDLE OF THE SENATE PROVISION, IT WAS NOT INTENDED TO VITIATE THE
PROVISIONS OF THE SENATE BILL WITH RESPECT TO THE EXPRESSION OF ANY
PERSONAL VIEW, ARGUMENT, OR OPINION IN A NON-REPRESENTATIONAL ELECTION
CONTEXT WHICH, SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF
REPRISAL OR FORCE OR PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE
CONDITIONS, CONSTITUTE AN UNFAIR LABOR PRACTICE. INDEED, THE INTENT OF
THE CONFEREES, CONSIST WITH POLICY UNDER THE EXECUTIVE ORDER, WAS TOTAL
NEUTRALITY OF AGENCY MANAGEMENT IN REPRESENTATION ELECTIONS AND WHETHER
MADE WITHOUT THREAT OR FORCE OR PROMISE OF BENEFIT OR UNDER COERCIVE
CONDITION, ANY STATEMENT BREACHING SUCH NEUTRALITY IS IMPERMISSIBLE AND
EVALUATION OF STATEMENTS BY AGENCY MANAGEMENT IN A REPRESENTATION
CONTEXT ON THE BASIS OF THREAT, PROMISE OF BENEFIT, ETC., WOULD NOT BE
FULLY CONSISTENT WITH THE POLICY OF NEUTRALITY. RETENTION OF SUCH
PROVISIONS IS, HOWEVER, FULLY CONSISTENT WITH THE STATED INTENT OF THE
SENATE PROVISION AS TO EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT OR
OPINION OTHER THAN IN THE CONTEXT OF A REPRESENTATION ELECTION WHEN THE
NECESSITY FOR NEUTRALITY IS NOT PRESENT. THEN, OF COURSE, THE
EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT OR OPINION, WHETHER BY AGENCY
MANAGEMENT OR BY ANY OTHER PERSON, SHALL NOT CONSTITUTE AN UNFAIR LABOR
PRACTICE IF SAID EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE OR
PROMISE OF BENEFIT OR WAS NOT MADE UNDER COERCIVE CONDITIONS; II) THE
FURTHER STATEMENTS IN THE CONFERENCE REPORT, INTER ALIA, THAT, "THE
WORDING OF THE CONFERENCE REPORT IS INTENDED TO REFLECT THE CURRENT
POLICY OF THE CIVIL SERVICE COMMISSION WHEN ADVISING AGENCIES ON WHAT
STATEMENTS THEY MAY MAKE DURING AN ELECTION, AND TO CODIFY CASE LAW
UNDER EXECUTIVE ORDER 11491, AS AMENDED, ON THE USE OF STATEMENTS IN ANY
UNFAIR LABOR PRACTICE PROCEEDING." THE CASE LAW UNDER THE EXECUTIVE
ORDER IN THIS REGARD HAD TWO BRANCHES: FIRST, AS NOTED ABOVE, THE
POLICY THAT IN ANY REPRESENTATION ELECTION CAMPAIGN AGENCY MANAGEMENT
MUST MAINTAIN A POSTURE OF NEUTRALITY. SECOND, THAT IN ALL OTHER
SITUATIONS EXPRESSIONS OF OPINION CONSTITUTED AN UNFAIR LABOR PRACTICE
ONLY IF THE STATEMENT INTERFERED WITH, RESTRAINED, OR COERCED AN
EMPLOYEE IN THE EXERCISE OF THE RIGHTS ASSURED BY THE ORDER. SEE, FOR
EXAMPLE SOCIAL SECURITY ADMINISTRATION, WILKES-BARRE OPERATIONS BRANCH,
DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, A/SLMR NO. 729, 6 A/SLMR
549(1976); MARINE CORPS EXCHANGE 8-2, MARINE CORPS AIR STATION, EL
TORO, CALIFORNIA, A/SLMR NO. 865, 7 A/SLMR 576(1977); (III) THE WORDING
OF SUBSECTION (E) WHEREBY THE PHRASE, ADDED TO THE SENATE VERSION, "OR
THE MAKING OF ANY STATEMENT" IS LIMITED BY "WHICH-- "(1) PUBLICIZES . .
. (2) CORRECTS THE RECORD . . . , OR (3) INFORMS EMPLOYEES . . . ."
WHILE NOT A MODEL OF CLARITY, FOR THE REASONS STATED ABOVE, THE PURPOSE
AND INTENT OF THIS INSERTION WAS TO INSURE NEUTRALITY OF AGENCY
MANAGEMENT IN REPRESENTATIONAL ELECTIONS; IV) EVEN IF THE EXPRESSION OF
ANY PERSONAL VIEW, ARGUMENT OR OPINION IN AN NON-REPRESENTATION ELECTION
CONTEXT WERE NOT PROTECTED BY SEC. 16(E) UNLESS SUCH EXPRESSION "(1)
PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
EMPLOYEES . . . TO VOTE . . . , (2) CORRECTS THE RECORD WITH RESPECT TO
ANY FALSE OR MISLEADING STATEMENT . . . , OR (3) INFORM EMPLOYEES OF THE
GOVERNMENT'S POLICY . . . .", NEVERTHELESS, SUCH EXPRESSION WOULD
CONSTITUTE AN UNFAIR LABOR PRACTICE ONLY IF IT INTERFERED WITH,
RESTRAINED, OR COERCED ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THE STATUTE, WHICH IS PRECISELY THE OBJECTIVE OF SEC.
16(E), NAMELY, THAT THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT,
OPINION SHALL NOT CONSTITUTE AN UNFAIR LABOR PRACTICE IF THE EXPRESSION
CONTAINS NO THREAT OF REPRISAL OR FORCE OR PROMISES OF BENEFIT AND IS
NOT MADE UNDER COERCIVE CONDITIONS.
WITH REGARD TO MR. GIBSON'S STATEMENT IN THIS CASE, MESSRS. MILUS AND
MCNEELY, IN FEBRUARY AND ON MAY 24, 1979, RESPECTIVELY, HAD GONE TO MR.
GIBSON AND MR. GIBSON TOLD MR. MILUS THAT THE UNION WASN'T WORTH THE
PAPER IT WAS PRINTED ON; ALSO IT ISN'T WORTH THE MONEY INVESTED IN IT;
AND HE TOLD MR. MCNEELY THAT THE UNION HAS TO REPRESENT YOU WHETHER YOU
ARE A MEMBER OR NOT, DUES ARE HIGH AND I HATE TO SEE YOU WASTE YOUR
MONEY. MR. GIBSON'S STATEMENTS WERE NOT MADE UNDER COERCIVE CONDITIONS
AS EACH EMPLOYEE HAD SOUGHT OUT MR. GIBSON AND ASKED HIS OPINION ABOUT
THE UNION CF., VETERANS ADMINISTRATION HOSPITAL, SHREVEPORT, LOUISIANA,
1 FLRA NO. 48(1979); AND THERE WAS NOT THREAT OF REPRISAL OR FORCE OF
PROMISE OF BENEFIT. ACCORDINGLY, MR. GIBSON'S EXPRESSION OF HIS
PERSONAL VIEW, ARGUMENT, OR OPINION DID NOT, PURSUANT TO SEC. 16(E),
CONSTITUTE AN UNFAIR LABOR PRACTICE. /14/ IN LIKE MANNER, ALTHOUGH MR.
GIBSON SOUGHT OUT MR. BUCKHEISTER, MR. GIBSON'S QUERY TO MR.
BUCKHEISTER, DO YOU KNOW YOUR UNION DUES ARE GOING UP, DID NOT, PURSUANT
TO SEC. 16(E), CONSTITUTE AN UNFAIR LABOR PRACTICE.
WHILE I HAVE CONCLUDED THAT THE EXPRESSIONS BY MR. GIBSON WERE WITHIN
THE PURVIEW OF SEC. 16(E), AS PROTECTED EXPRESSIONS OF PERSONAL VIEW,
ARGUMENT OR OPINION AND, IN THE ABSENCE OF ANY THREAT OF REPRISAL OR
FORCE OR PROMISE OF BENEFIT AND WERE NOT UNDER COERCIVE CONDITIONS, EVEN
IF SUCH EXPRESSIONS WERE DEEMED NOT WITHIN THE PURVIEW OF SEC. 16(E),
SINCE SUCH EXPRESSIONS DID NOT INTERFERE WITH, RESTRAIN, OR COERCE ANY
EMPLOYEE IN THE EXERCISE BY THE EMPLOYEES OF ANY RIGHT UNDER THE
STATUTE, INCLUDING THE RIGHT, ASSURED BY SEC. 2, TO FORM, JOIN, OR
ASSIST ANY LABOR ORGANIZATION WITHOUT FEAR OF PENALTY OR REPRISAL, SUCH
STATEMENTS DID NOT VIOLATE SEC. 16(A)(1) OF THE STATUTE. AS NOTED
ABOVE, EMPLOYEES MILUS AND MCNEELY WENT TO MR. GIBSON; MR. GIBSON'S
COMMENTS WERE MADE IN PRIVATE CONVERSATIONS AND NOTHING IN HIS COMMENTS
INTERFERED WITH, RESTRAINED OR COERCED THE EMPLOYEES IN THE EXERCISE OF
THEIR RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL TO JOIN OR
ASSIST A LABOR ORGANIZATION. ALTHOUGH HE TOLD MR. MILUS THAT THE UNION
WASN'T WORTH THE PAPER IT WAS PRINTED ON AND THAT $11.00 A MONTH WASN'T
WORTH THE MONEY INVESTED IN IT, THERE WAS NO THREAT OR PENALTY OR
REPRISAL. MR. GIBSON'S STATEMENT TO MR. MCNEELY THAT THE UNION HAD TO
REPRESENT HIM WHETHER HE WAS A MEMBER OR NOT, WAS, OF COURSE, A CORRECT
STATEMENT AND HIS FURTHER STATEMENT THAT DUES ARE HIGH AND I HATE TO SEE
YOU WASTE YOUR MONEY WAS WHOLLY FREE OF ANY THREAT OF PENALTY OR
REPRISAL. HAD MR. GIBSON GENERALLY DISSEMINATED SUCH VIEWS, I WOULD
VIEW HIS COMMENTS DIFFERENTLY, CF. VETERANS ADMINISTRATION HOSPITAL,
SHREVEPORT, LOUISIANA, 1 FLRA NO. 48(1979); BUT WHERE, AS HERE,
EMPLOYEES GO TO A SUPERVISOR AND SEEK HIS OPINION ABOUT THE UNION, A
RESPONSE, EVEN THOUGH DISPARAGING OF THE UNION, DOES NOT VIOLATE SEC.
16(A)(1) IF FREE OF THREAT OF PENALTY OR REPRISAL. FINALLY, ALTHOUGH
MR. GIBSON INITIATED THE COMMENT TO MR. BUCKHEISTER WHEREBY HE ASKED IF
HE, BUCKHEISTER, KNEW HIS UNION DUES WERE GOING UP, HIS COMMENT, WHICH
WENT NO FURTHER, DID NOT VIOLATE SEC. 16(A)(1).
ACCORDINGLY, THE ALLEGATIONS OF PARAGRAPH 5(A) OF THE COMPLAINT ARE
HEREBY DISMISSED.
II. INTERROGATION AND MAINTENANCE OF RULE AGAINST
SOLICITATION OF UNION MEMBERSHIP ON PAID BREAKS
MR. GIBSON QUESTIONED MR. BUCKHEISTER AS TO WHERE HE HAD GOT
INFORMATION ABOUT JOINING THE UNION AND MR. BUCKHEISTER TOLD HIM THAT HE
HAD GOT THE INFORMATION FROM HIS UNION STEWARD, JOHN BEASLEY.
SUBSEQUENTLY, ON MAY 24, MR. GIBSON ASKED MR. MCNEELY IF BEASLEY HAD
BEEN TRYING TO GET HIM TO JOIN THE UNION AND WHEN MR. MCNEELY ASKED WHY
HE WANTED TO KNOW, MR. GIBSON RESPONDED THAT "BEASLEY WASN'T SUPPOSED TO
SAY ANYTHING ABOUT THE UNION AND I WASN'T SUPPOSED TO LISTEN" AND MR.
GIBSON ASKED MR. MCNEELY TO GIVE A WRITTEN STATEMENT WHICH MR. GIBSON
READILY ADMITTED BECAUSE IT "IS AGAINST THE REGULATIONS TO DISCUSS OR
PARTICIPATE IN IT, OR TRY TO PROCURE MEMBERS WHILE ON THE JOB". MR.
BEASLEY TESTIFIED THAT HE HAD SOLICITED UNION MEMBERSHIP ONLY DURING
BREAKS; THAT MR. MCNEELY ON MAY 24 HAD ASKED HIM ABOUT JOINING THE
UNION AND HE HAD TOLD MCNEELY HE WOULD GET HIM AN APPLICATION ON THEIR
BREAK. ON MAY 26, 1979, MR. BEASLEY WAS COUNSELED FOR SPENDING DUTY
TIME TO CONDUCT NON-OFFICIAL BUSINESS, I.E., SOLICITED UNION MEMBERSHIP.
MR. BEASLEY'S TESTIMONY THAT HE SOLICITED UNION MEMBERSHIP ONLY ON
BREAKS WAS NOT REFUTED; MR. SHARP'S NOTE FOR THE RECORD STATED THAT HE
INFORMED MR. BEASLEY THAT, " . . . HE WAS NOT TO DISCUSS ANY UNION
MATTER WITH ANY EMPLOYEE WHILE ON DUTY UNLESS AN APPOSITE TIME HAD BEEN
SCHEDULED VERIFIED WITH ME (SHARP). . . . " (G.C. EXH. 15); MR. GIBSON
HAD TOLD MR. BEASLEY ON MAY 24 THAT HE WAS "NOT TO SPEAK WITH ANY OF THE
EMPLOYEES ABOUT THE UNION"; AND MR. GIBSON, SEEKING MR. MCNEELY'S
WRITTEN STATEMENT, HAD STATED THAT IT "IS AGAINST THE REGULATIONS . . .
TO PROCURE MEMBERS WHILE ON THE JOB". NOT ONLY DOES THE RECORD SHOW
THAT MR. BEASLEY SOLICITED UNION MEMBERSHIP DURING BREAKS AND THAT HE
WAS COUNSELED FOR HAVING DONE SO, BUT THE RECORD FURTHER SHOWS THAT
RESPONDENT'S UNQUALIFIED POSITION WAS, AND IS, THAT SOLICITATION OF
UNION MEMBERSHIP DURING ANY PART OF "CLOCK TIME" IS PROHIBITED BY THE
AGREEMENT OF THE PARTIES, BY REGULATION, AND BY THE STATUTE, INASMUCH AS
EMPLOYEES IN THE AIR FREIGHT TERMINAL ARE PAID FOR ALL "CLOCK TIME",
INCLUDING BREAKS. INDEED, GENERAL COUNSEL, WITH FULL RECOGNITION OF THE
PROVISIONS OF SEC. 31(B) OF THE STATUTE, INITIALLY SOUGHT TO PROVE THAT
THE SOLICITATION OF MEMBERSHIP OCCURRED ONLY ON BREAK TIME AND THAT THE
COUNSELING OF MR. BEASLEY FOR SOLICITING MEMBERSHIP ON DUTY TIME WAS
IMPROPER BECAUSE THE SOLICITATION HAD BEEN LIMITED TO BREAK TIME. IT
BECAME CLEAR THAT RESPONDENT'S POSITION WAS THAT, BECAUSE EMPLOYEES WERE
PAID FOR ALL BREAK TIME, ALL "CLOCK TIME" WAS DUTY TIME. GENERAL
COUNSEL THEN MOVED TO AMEND THE COMPLAINT TO ADD A FURTHER ALLEGATION TO
PARAGRAPH 5 TO ALLEGE THAT RESPONDENT VIOLATED THE STATUTE BY
MAINTAINING AN UNLAWFUL RULE PROHIBITING SOLICITATION OF UNION MATTERS
DURING BREAKS AND LUNCH PERIODS. GENERAL COUNSEL'S MOTION TO AMEND THE
COMPLAINT WAS GRANTED; HOWEVER, A RECESS WAS TAKEN TO ALLOW BOTH
PARTIES TO PREPARE FOR LITIGATION OF THE ISSUE RAISED BY THE AMENDMENT.
RESPONDENT OFFERED NO EVIDENCE OR TESTIMONY THAT SOLICITATION OF
MEMBERSHIP OCCURRED OTHER THAN ON BREAKS AND ASSERTED THAT ALL "CLOCK
TIME" WAS DUTY TIME AND THAT SOLICITATION OF MEMBERSHIP DURING DUTY TIME
IS CONTRARY TO THE STATUTE, REGULATIONS AND THE AGREEMENT OF THE
PARTIES.
SEC. 31 OF THE STATUTE, OFFICIAL TIME, PROVIDES, IN PART, AS FOLLOWS:
"(B) ANY ACTIVITIES PERFORMED BY ANY EMPLOYEE RELATING TO THE
INTERNAL BUSINESS OF A LABOR
ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP . . . ) SHALL
BE PERFORMED DURING THE
TIME THE EMPLOYEE IS IN A NON-DUTY STATUS." (5 U.S.C. 7131(B)). /15/
ARTICLE XI, SECTION 1 OF RESPONDENT'S AGREEMENT (G.C. EXH. 2)
PROVIDES:
"SECTION 1: SOLICITATION OF UNION MEMBERSHIP OR DUES, AND OTHER
INTERNAL BUSINESS OF THE
UNION SHALL BE CONDUCTED DURING THE NON-DUTY HOURS OF ALL THE
EMPLOYEES INVOLVED."
I HAVE CAREFULLY CONSIDERED VARIOUS REGULATIONS, INCLUDING FPM SUPP.
711-1 (RES. EXH. 5), AF REGULATION 40-711 (RES. EXH. 6) AF REG. 40-610
(RES. EXH. 7) AND AF REG. 40-610-1 (RES. EXH. 8) AS WELL AS ARTICLE XIX
OF RESPONDENT'S AGREEMENT (G.C. EXH. 2) AND FIND NOTHING THAT PURPORTS
TO CONTROL WHAT AN EMPLOYEE MAY DO ON HIS BREAK TIME. OBVIOUSLY,
OFFICIAL TIME IS NOT AUTHORIZED FOR THE SOLICITATION OF UNION
MEMBERSHIP; HOWEVER, IT DOES NOT FOLLOW THAT DURING OFFICIAL TIME
ALLOWED FOR AN ALTOGETHER DIFFERENT PURPOSE, I.E., SPECIFICALLY A PAID
BREAK, INCLUDING A MEAL BREAK, AN EMPLOYEE IS BY LAW, REGULATION OR
CONTRACT PROHIBITED FROM USING ALL OR PART OF THE PAID BREAK TO SOLICIT
UNION MEMBERSHIP. NOT ONLY DID MR. DECKER TESTIFY THAT HE KNEW OF NO
RULE PROHIBITING SOLICITATION OF MEMBERSHIP ON BREAKS, BUT THE RECORD
OTHERWISE SHOWS THAT EMPLOYEE ARE FREE TO USE BREAK TIME AS THEY WISH.
FOR EXAMPLE, RESPONDENT HAS TERMINATED EMPLOYEES FOR "SLEEPING WHILE ON
DUTY" AND/OR FOR "SLEEPING ON THE JOB" (RES. EXH. 2). AT THE HEARING, I
SPECIFICALLY ASKED COUNSEL FOR RESPONDENT IF AN EMPLOYEE WHO ELECTED TO
SLEEP DURING HIS BREAK WOULD BE SUBJECT TO DISCIPLINE, INCLUDING
DISCHARGE, FOR DOING SO, AND COUNSEL FOR RESPONDENT STATED THAT HE WOULD
NOT. IT IS TRUE, OF COURSE, THAT NEITHER THE STATUTE NOR THE
REGULATIONS REFERS, SPECIFICALLY, TO SLEEPING ON DUTY; BUT THE
DISTINCTION URGED IS A DISTINCTION WITHOUT A DIFFERENCE. IF RESPONDENT
WERE CORRECT, THEN BREAK TIME IS DUTY TIME FOR ALL PURPOSES AND AN
EMPLOYEE WHO SLEEPS DURING A BREAK SHOULD BE SUBJECT TO DISCHARGE FOR
SLEEPING ON DUTY TO THE SAME EXTENT AS IF HE DID SO DURING NON-BREAK
TIME. THAT EMPLOYEES WOULD NOT BE DISCIPLINED FOR SLEEPING DURING BREAK
TIME SIMPLY EMPHASIZES THAT EMPLOYEES ARE FREE TO USE BREAK TIME AS THEY
SEE FIT. AT THE SAME TIME, IT CERTAINLY COULD NOT BE CONTENDED THAT
RESPONDENT HAS ANY OBLIGATION TO PROVIDE OFFICIAL TIME FOR SLEEPING.
IT WAS CONSISTENTLY HELD UNDER EXECUTIVE ORDER 11491 THAT A POLICY,
OR RULE, PROHIBITING SOLICITATION BY EMPLOYEES, ON THE PREMISES, DURING
NON-WORK TIME, IN THE ABSENCE OF A SHOWING OF SPECIAL CIRCUMSTANCES,
INTERFERED WITH EMPLOYEES' RIGHTS UNDER THE ORDER AND VIOLATED SECTION
19(A)(1) OF THE ORDER. CHARLESTON NAVAL SHIPYARD, A/SLMR NO. 1, 1
A/SLMR 27(1970); FEDERAL ENERGY ADMINISTRATION, REGION IV, ATLANTA,
GEORGIA, A/SLMR NO. 541, 5 A/SLMR 509(1975); DEPARTMENT OF THE AIR
FORCE, OFFUT AIR FORCE BASE, A/SLMR NO. 784, 7 A/SLMR 61(1977).
RESPONDENT'S POSITION IS THAT, BECAUSE THE EMPLOYEES HERE INVOLVED ARE
PAID FOR BREAKS, SUCH TIME IS DUTY TIME; SEC. 31(B) PROVIDES THAT "ANY
ACTIVITIES PERFORMED BY AN EMPLOYEE RELATING TO THE INTERNAL BUSINESS OF
A LABOR ORGANIZATION (INCLUDING THE SOLICITATION OF MEMBERSHIP . . . )
SHALL BE PERFORMED DURING THE TIME THE EMPLOYEE IS IN A NON-DUTY
STATUS"; THAT CONGRESSMAN FORD, NOT CONGRESSMAN CLAY, STATED, IN
EXPLAINING THE UDAL SUBSTITUTE, THAT:
"SECTION 7132(B) OF THE COMPROMISE (ENACTED WITHOUT CHANGE AS
7131(B)) PRECLUDES THE USE OF
OFFICIAL TIME BY EMPLOYEES FOR CONDUCTING THE INTERNAL BUSINESS OF A
LABOR ORGANIZATION. THIS
SUBSECTION SPECIFICALLY PROVIDES THAT EMPLOYEES SHALL NOT SOLICIT
MEMBERSHIPS . . . ON
OFFICIAL TIME." (LEG. HISTORY, P. 957).
ACCORDINGLY, RESPONDENT ASSERTS THAT, "CONGRESS INTENDED TO PROHIBIT
MEMBERSHIP SOLICITATION DURING THAT TIME WHEN AN EMPLOYEE WAS BEING PAID
BY HIS EMPLOYER"; THAT, "EQUATING THE TERM 'PAID TIME' WITH 'OFFICIAL
TIME', AS DID THE HOUSE REPORT (LEG. HISTORY, P. 704), SHOWS THAT
RESPONDENT WOULD BE IN COMPLIANCE WITH RULES OF THE FEDERAL PERSONNEL
MANUAL, AIR FORCE REGULATIONS, AND THE APPLICABLE LABOR CONTRACT. THE
MAINTENANCE OF A RULE PROHIBITING UNION SOLICITATION DURING PAID BREAK
PERIODS AND THE 20 MINUTE PAID MEAL PERIOD WOULD NOT BE AN UNFAIR LABOR
PRACTICE." (RESPONDENT'S BRIEF-- PAGES UNNUMBERED).
WITH ALL DEFERENCE, I DO NOT FIND ANY SUPPORT IN THE LEGISLATIVE
HISTORY FOR SUCH PROPOSITION, NAMELY, THAT SOLICITATION WAS INTENDED TO
BE PROHIBITED DURING BREAK TIME. INDEED, IT HAS LONG BEEN RECOGNIZED
THAT THERE IS A VERY BASIC DIFFERENCE BETWEEN DUTY TIME (CLOCK TIME) AND
WORKING TIME AND THAT NON-SOLICITATION RULES WHICH SEEK TO PROHIBIT
SOLICITATION DURING ALL DUTY TIME (CLOCK TIME) VIOLATE THE RIGHTS OF
EMPLOYEES. IN EACH OF THE THREE CASES CITED ABOVE, CHARLESTON NAVAL
SHIPYARD, FEDERAL ENERGY ADMINISTRATION AND OFFUTT AIR FORCE BASE, THE
ASSISTANT SECRETARY HELD THAT PROHIBITION OF SOLICITATION, IN THE
ABSENCE OF SPECIAL CIRCUMSTANCES, DURING "NON-WORK TIME" INTERFERED WITH
EMPLOYEE RIGHTS. IT IS NOT ALTOGETHER CLEAR THAT BREAK TIME WAS
CONSIDERED IN THE CHARLESTON NAVAL SHIPYARD CASE, BUT BREAK TIME WAS
SPECIFICALLY ADDRESSED IN THE OTHER TWO CASES. IN FEDERAL ENERGY
ADMINISTRATION, JUDGE NAIMARK STATED, IN PART,
"RECENT DECISIONAL LAW IN THE PRIVATE SECTOR ENUNCIATED THE DOCTRINE
THAT A RULE WHICH
PROHIBITS SOLICITATION DURING 'WORKING HOURS' IS INVALID. A CLEAR
DISTINCTION WAS DRAWN
BETWEEN PROHIBITING SOLICITATION DURING 'WORKING TIME' AND 'WORKING
HOURS', THE LATTER TERM
CONNOTING A PERIOD OF TIME FROM 'CLOCKING IN' UNTIL 'CLOCKING OUT' .
. . " (5 A/SLMR AT 515).
THE ASSISTANT SECRETARY CONCURRED WITH THIS CONCLUSION AND STATED, IN
PART, AS FOLLOWS:
"IN THIS REGARD, IT WAS HELD IN CHARLESTON NAVAL SHIPYARD, A/SLMR NO.
1, THAT, IN THE
ABSENCE OF ANY EVIDENCE OF SPECIAL CIRCUMSTANCES, THE LIMITING OR
BANNING OF EMPLOYEE
SOLICITATION DURING NON-WORK TIME CONSTITUTED IMPROPER CONDUCT IN
VIOLATION OF SECTION
19(A)(1) OF THE ORDER. THUS, IN EFFECT, THE ASSISTANT SECRETARY HAD
FOUND INVALID, ABSENT
UNUSUAL CIRCUMSTANCES, THE PROHIBITION BY AGENCY MANAGEMENT OF
EMPLOYEE SOLICITATION IN THEIR
WORK AREAS DURING NON-WORK TIME." (5 A/SLMR AT 510)
IN OFFUTT AIR FORCE BASE, THE ASSISTANT SECRETARY STATED, IN PART, AS
FOLLOWS:
" . . . BOTH THE NOTICE AND DIRECTION HAD THE EFFECT OF BARRING UNION
ACTIVITY BY NCO CLUB
EMPLOYEES DURING THEIR NON-WORK TIME, INCLUDING BREAKS AND LUNCH
HOURS, A LIMITATION WHICH HAS
BEEN FOUND TO BE VIOLATIVE OF THE ORDER, ABSENT UNUSUAL CIRCUMSTANCES
NOT PRESENT HERE." (7
A/SLMR AT 64).
"DUTY TIME" OR "PAID TIME" HEREIN OBVIOUSLY INCLUDES ALL "CLOCK TIME"
WHICH, IN TURN, ENCOMPASSES NON-WORK TIME ALLOWED DURING "DUTY TIME" FOR
MEALS AND BREAKS. THE FACT THAT EMPLOYEES ARE PAID FOR BREAK TIME,
INCLUDING THE 20 MINUTE MEAL BREAK, DOES NOT MEAN THAT SUCH NON-WORK
TIME CEASES TO BE NON-WORK TIME. A PAID BREAK IS NON-WORK TIME AND ANY
RULE BARRING UNION ACTIVITY BY EMPLOYEES DURING THEIR NON-WORK TIME,
INCLUDING BREAKS AND MEAL PERIODS, WAS VIOLATIVE OF SECTION 19(A)(1) OF
THE ORDER AND IS VIOLATIVE OF THE SUBSTANTIALLY IDENTICAL PROVISIONS OF
SEC. 16(A)(1) OF THE STATUTE. RESPONDENT NEITHER ASSERTS NOR HAS SHOWN
ANY SPECIAL CIRCUMSTANCES, EXCEPT THE FACT THAT ITS EMPLOYEES ARE PAID
FOR BREAKS, INCLUDING THE 20 MINUTE MEAL BREAK, WHICH DOES NOT
CONSTITUTE A SPECIAL CIRCUMSTANCE WHICH WOULD JUSTIFY THE BANNING OF
SOLICITATION DURING SUCH NON-WORK BREAK PERIODS.
MAINTENANCE OF A PURPORTED RULE, OR POLICY, PROHIBITING SOLICITATION
DURING NON-WORK TIME VIOLATED SEC. 16(A)(1) OF THE STATUTE;
RESPONDENT'S INTERROGATION OF EMPLOYEES MCNEELY AND BUCKHEISTER
CONCERNING, IN EFFECT, WHO SOLICITED THEIR MEMBERSHIP IN THE UNION
INTERFERED WITH THE EXERCISE OF THEIR RIGHTS IN VIOLATION OF SEC.
16(A)(1) OF THE STATUTE; AND RESPONDENT'S STATEMENTS TO MR. BEASLEY,
INCLUDING HIS COUNSELING ON MAY 26, 1979, FOR SPENDING DUTY TIME TO
CONDUCT NON-OFFICIAL BUSINESS AND MR. SHARP'S WRITTEN CONFIRMATION THAT
MR. BEASLEY WAS "NOT TO DISCUSS ANY UNION MATTER WITH ANY EMPLOYEE
WHILE ON DUTY UNLESS AN APPOSITE TIME HAD BEEN SCHEDULED AND VERIFIED"
INTERFERED WITH MR. BEASLEY'S RIGHTS, GUARANTEED BY SEC. 2 OF THE
STATUTE, AND THEREBY, ALSO, VIOLATED SEC. 16(A)(1) OF THE STATUTE.
THEREFORE, I FIND THAT RESPONDENT, BY ITS INTERROGATION OF EMPLOYEES
MCNEELY AND BUCKHEISTER, BY ITS EXPRESSION OF POLICY WITH RESPECT TO
EMPLOYEE SOLICITATION, AS CONFIRMED BY MR. SHARP'S NOTE FOR THE RECORD,
IMPROPERLY INTERFERED WITH, RESTRAINED, OR COERCED EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE STATUTE AND, THEREBY, VIOLATED SEC.
16(A)(1) OF THE STATUTE. /16/
III. DISPARATE TREATMENT OF STEWARD BEASLEY
THERE IS NO QUESTION THAT THE MATTERS FOR WHICH MR. BEASLEY WAS
ADMONISHED WERE VERY REAL INCIDENTS. THUS, MR. BEASLEY HAD SIGNED OUT A
FORKLIFT ON APRIL 24, 1979, AND DID FAIL TO REFUEL IT; HE DID COMPLETE
ONLY ONE PALLET ON MAY 2, 1979; AND ON MAY 9, 1979, MR. BEASLEY DID NOT
DIRECTLY NOTIFY HIS SUPERVISOR THAT HE WOULD BE ABSENT. I HAVE NO DOUBT
THAT MR. BEASLEY WAS FULLY AWARE THAT HE WAS RESPONSIBLE FOR THE
FORKLIFT SO LONG AS IT WAS CHARGED OUT TO HIM AND THAT IF HE "LOANED" IT
TO ANOTHER EMPLOYEE HE DID SO AT HIS RISK; BUT THE RECORD SHOWS NO
OTHER INSTANCE THAT ANY OTHER EMPLOYEE HAD EVER BEEN ADMONISHED FOR
FAILING TO REFUEL A FORKLIFT CHARGED TO HIM, INCLUDING, BUT NOT LIMITED
TO, MR. HAYES' FAILURE TO REFUEL HIS FORKLIFT ON THE SAME SHIFT ON APRIL
24, 1979.
THERE IS NO DOUBT THAT MR. BEASLEY WAS FULLY AWARE OF THE REQUIREMENT
THAT HIS SUPERVISOR BE NOTIFIED WHEN HE WAS TO BE ABSENT FROM WORK. IN
MARCH, 1979, HE HAD CALLED AN EVENING SUPERVISOR, MR. FISHER, AND
ADVISED HIM THAT HE WOULD NOT BE IN AND ASKED MR. FISHER TO RELAY THE
MESSAGE TO HIS, BEASLEY'S, SUPERVISOR WHICH MR. FISHER REFUSED TO DO.
ARTICLE XXIII, SECTION H OF THE LOCAL AGREEMENT (G.C. EXH. 2), PROVIDES
THAT THE FIRST LEVEL SUPERVISOR WILL BE AUTHORIZED TO GRANT AND APPROVE
REQUESTS FOR ALL SICK LEAVE EXCEPT ADVANCED SICK LEAVE. SECTION 19A OF
AFR 40-630/AFLC SUPP. 1 PROVIDES, IN PART, AS FOLLOWS:
"19A. SICK LEAVE ABSENCE BECAUSE OF ILLNESS . . . MUST BE REQUESTED
WITHIN 2 HOURS AFTER
THE BEGINNING OF THE WORK SHIFT . . . WHENEVER POSSIBLE EMPLOYEES
SHOULD PERSONALLY REQUEST
SICK LEAVE AND KEEP THE IMMEDIATE SUPERVISOR ADVISED AS TO THE
ANTICIPATED DURATION OF THE
ABSENCE." (G.C. EXH. 5).
RESPONDENT RELIES HEAVILY ON THE REQUIREMENT OF SECTION 10A(2) OF
AFLC SUPP. 1, WHICH APPLIES TO EMERGENCIES WHERE PRIOR APPROVAL OF
ANNUAL LEAVE CANNOT BE OBTAINED, WHICH PROVIDES, IN PART, THAT:
. . . AN EMPLOYEE MUST NOTIFY HIS IMMEDIATE SUPERVISOR BY TELEPHONE
OF THE NATURE OF THE
EMERGENCY FOR WHICH ANNUAL LEAVE IS REQUESTED AS SOON AS POSSIBLE
AFTER THE BEGINNING OF THE
WORK SHIFT BUT WITHIN A MAXIMUM OF 2 HOURS . . . " (G.C. EXH. 5).
RESPONDENT'S MEMORANDUM OF OCTOBER 27, 1976, AS MATERIAL, SIMPLY
PROVIDES THAT:
" . . . WHEN AN EMPLOYEE REPORTS SICK LEAVE BY TELEPHONE, THE
SUPERVISOR SHOULD ENDEAVOR TO
OBTAIN FROM THE EMPLOYEE A DATE ON WHICH THE EMPLOYEE WILL HAVE
REPORT BACK FOR DUTY
. . . ." (G.C. EXH. 6).
IT IS CLEAR THAT: A) REQUESTS FOR UNSCHEDULED SICK LEAVE MUST BE
MADE "WITHIN 2 HOURS AFTER THE BEGINNING OF THE WORK SHIFT"; AND B)
THAT THE EMPLOYEE'S FIRST LEVEL SUPERVISOR IS AUTHORIZED TO GRANT AND
APPROVE REQUESTS FOR SUCH SICK LEAVE. MOREOVER, AS NOTED ABOVE, MR.
BEASLEY WAS FULLY AWARE THAT HIS SUPERVISOR MUST BE NOTIFIED; BUT WAS
IT OBLIGATORY THAT MR. BEASLEY SPEAK TO HIS SUPERVISOR? SECTION 19A OF
AFLC SUPP. 1, WHICH GOVERNS SUCH REQUESTS, DOES NOT CONTAIN THE LANGUAGE
OF 10A(2) OF AFLC SUPP. 1, WHICH GOVERNS EMERGENCY ANNUAL LEAVE, THAT
"AN EMPLOYEE MUST NOTIFY HIS IMMEDIATE SUPERVISOR BY TELEPHONE"; AND
MR. KELLY, HEAD OF LABOR RELATIONS AT TINKER AIR FORCE BASE, TESTIFIED
THAT THE PURPOSE OF THE REQUIREMENT WAS "NOTIFYING THE EMPLOYER THAT HIS
INTENTIONS ARE NOT TO BE IN THE SHOP THAT DAY" (TR. 19) AND THAT, AT
THAT STAGE, THERE WAS NO OBLIGATION ON THE PART OF MANAGEMENT TO APPROVE
THE SICK LEAVE REQUEST. ASSUMING, AT THE RECORD CLEARLY SHOWS AS TO MR.
BEASLEY'S NOTICE ON MAY 9, 1979, THAT THE EMPLOYEE'S SUPERVISOR IS, IN
FACT, NOTIFIED PRIOR TO THE COMMENCEMENT OF THE SHIFT THAT AN EMPLOYEE
WILL BE ABSENT, IT CERTAINLY APPEARS THAT THIS PURPOSE OF THE RULE HAS
BEEN FULLY MET. INDEED, FROM THE STANDPOINT OF THE SUPERVISOR BEING
ABLE TO ACCOMMODATE FOR THE ABSENCE OF AN EMPLOYEE, NOTIFICATION PRIOR
TO THE BEGINNING OF A SHIFT COULD ONLY BE BENEFICIAL AS CONTRASTED WITH
NOTICE NOT MORE THAN TWO HOURS AFTER COMMENCEMENT OF THE SHIFT. THE
RISK AN EMPLOYEE TAKES IS THAT ACTUAL NOTICE MAY NEVER REACH HIS
SUPERVISOR AS SUPERVISORS ON OTHER SHIFTS HAVE NO OBLIGATION, IN FACT
MAY BE INSTRUCTED TO REFUSE REQUESTS, TO RELAY SUCH MESSAGES. BOTH
MESSRS. GIBSON AND SHARP WERE INFORMED AT, OR IMMEDIATELY PRIOR TO,
COMMENCEMENT OF MR. BEASLEY'S SHIFT ON MAY 9, 1979, THAT HE WOULD BE
ABSENT. NOT ONLY DOES THE RECORD SHOW NO INSTANCE OF ADMONISHMENT OF
ANY OTHER EMPLOYEE UNDER LIKE CIRCUMSTANCES, NOTWITHSTANDING THAT THE
RECORD SHOWS A PRACTICE OF EMPLOYEES CALLING PRIOR TO THE COMMENCEMENT
OF THEIR SHIFTS AND LEAVING MESSAGES WITH SUPERVISORS OR EMPLOYEES; BUT
MR. GIBSON HAD WITHDRAWN THE MARCH, 1979, ADMONISHMENT OF MR. BEASLEY
WHERE THE RECORD SHOWS THAT HE WAS NOT NOTIFIED AT ALL THAT MR. BEASLEY
HAD CALLED AND INFORMED A SUPERVISOR ON ANOTHER SHIFT, MR. FISHER, THAT
HE WOULD NOT BE IN AND MR. FISHER HAD TOLD BEASLEY HE WAS NOT ALLOWED TO
TAKE A MESSAGE FOR ANOTHER SUPERVISOR AND WOULD NOT RELAY MR. BEASLEY'S
MESSAGE. WHERE BOTH MESSRS. GIBSON AND SHARP KNEW THAT BEASLEY HAD
CALLED AND KNEW THAT HE WOULD NOT BE IN, THE LOGIC OF MR. GIBSON'S
POSITION THAT UNLESS BEASLEY PERSONALLY CALLED MR. SHARP WITHIN THE TWO
HOUR TIME FRAME, OF SECTION 19A OF AFLC SUPP. 1, ESCAPES ME; BUT, MORE
IMPORTANT, ADMONISHMENT OF BEASLEY "FOR NOT REPORTING ABSENCE WITHIN TWO
HOURS OF THE BEGINNING OF THE SHIFT" WAS FALSE, WAS PRETEXTUAL, AND WAS
A FURTHER DISPARATE ACT DIRECTED AT BEASLEY.
I HAVE NO DOUBT THAT ON MAY 2, 1979, MR. BEASLEY, AFTER "BUILDING"
ONE PALLET, WAS SITTING DOWN WHILE MR. PAINTER HAD BEGUN A SECOND
PALLET. ADMONISHMENT OF MR. BEASLEY FOR SITTING DOWN WOULD HAVE BEEN
UNDERSTANDABLE; BUT TO ADMONISH ONE OF THE TWO EMPLOYEES ASSIGNED TO
THE SAME PALLET BECAUSE IT TOOK "TOO LONG" TO COMPLETE THAT PALLET WOULD
BE ASTONISHING UNDER ANY CIRCUMSTANCES AND IS PARTICULARLY SO AS TO THE
ADMONISHMENT OF MR. BEASLEY FOR THE REASONS THAT: A) MR. PAINTER
APPEARS TO HAVE BEEN CHARGED WITH PRIMARY RESPONSIBILITY FOR THE PALLET
IN QUESTION; AND B) MR. BEASLEY HAD, TO MR. GIBSON'S KNOWLEDGE, DEVOTED
PART OF HIS TIME TO DISCUSSIONS WITH MR. GIBSON AS A UNION STEWARD. I
FOUND MR. GIBSON'S TESTIMONY THAT HE DID NOT ADMONISH MR. PAINTER
UNWORTHY OF BELIEF; BUT WHETHER HIS TESTIMONY, THAT HE GAVE MR. PAINTER
NO ADMONISHMENT, OR MR. PAINTER'S TESTIMONY, THAT HE RECEIVED AN
ADMONISHMENT WHICH WAS SUBSEQUENTLY REMOVED, IS ACCEPTED IT IS,
NEVERTHELESS, PLAIN THAT MR. BEASLEY WAS TREATED IN A DIFFERENT MANNER,
FOR THE SAME CONDUCT, THAN MR. PAINTER.
AS TO EACH ASSERTED SHORTCOMING, THE RECORD SHOWS, AS A MINIMUM, A
PATTERN OF DISPARATE TREATMENT OF MR. BEASLEY AND THAT SUCH PATTERN
FOLLOWED MR. BEASLEY'S ACTIVITY AS A UNION STEWARD. MOREOVER, THE
ALLEGATION CONCERNING THE ALLEGED FAILURE TO REPORT ABSENCE "WITHIN TWO
HOURS OF THE BEGINNING OF THE SHIFT" ON MAY 9, 1979, WAS, IN ADDITION,
FALSE AND PRETEXTUAL AS WAS THE SICK LEAVE ABSENCE LETTER ISSUED TO MR.
BEASLEY. IN ADDITION, MR. GIBSON DENIED A LETTER OF COMMENDATION TO MR.
BEASLEY DESPITE MR. BRAY'S RECOMMENDATION THAT HE RECEIVE A LETTER OF
COMMENDATION AND MR. GIBSON'S PURPORTED JUSTIFICATION, NAMELY THAT HE
HAD NOT CONTRIBUTED AS MUCH EFFORT AS OTHER EMPLOYEES, WAS WHOLLY
UNSUPPORTED AND, INDEED, CONTRARY TO THE CREDITED TESTIMONY OF MR. BRAY.
AND MR. BEASLEY WAS IMPROPERLY COUNSELED FOR SOLICITING UNION
MEMBERSHIP DURING BREAK PERIODS. FINALLY, RESPONDENT'S UNLAWFUL
MOTIVATION WAS CLEARLY SHOWN, INTER ALIA, BY MR. CURLING'S STATEMENT TO
MR. BRAY IN MARCH, 1979, THAT:
" . . . THE UNION WAS A JOKE, AND THEY HAD MANAGED TO REMOVE ALL
UNION STEWARDS IN THE
PAST, AND THEY WOULDN'T HAVE NO TROUBLE WITH BEASLEY." (TR. 216);
AND BY MR. GIBSON'S STATEMENT TO MR. BRAY THAT HE, BRAY, SHOULD
FORGET ABOUT A LETTER OF COMMENDATION FOR BEASLEY, THAT "HE DIDN'T WANT
BEASLEY TO HAVE A LETTER, IF AT ALL POSSIBLE." (TR. 227). WEIGHING ALL
FACTORS, INCLUDING THOSE SET FORTH ABOVE, I FIND THAT RESPONDENT'S
DISPARATE TREATMENT OF MR. BEASLEY, INCLUDING CERTAIN FALSE AND
PRETEXTUAL ACTS, WAS, AT LEAST IN PART, BECAUSE OF MR. BEASLEY'S
ACTIVITY AS A UNION STEWARD AND HIS ACTIVITY IN SOLICITING UNION
MEMBERSHIP DURING BREAKS, AND THAT RESPONDENT INTERFERED WITH,
RESTRAINED, OR COERCED MR. BEASLEY IN HIS EXERCISE OR RIGHTS GUARANTEED
BY SEC. 2 OF THE STATUTE, AND THAT RESPONDENT THEREBY VIOLATED SEC.
16(A)(1) OF THE STATUTE.
NOTWITHSTANDING THE FOREGOING VIOLATION OF SEC. 16(A)(1), MR.
BEASLEY WAS DISCHARGED DURING HIS PROBATIONARY PERIOD, IN PART, FOR THE
PURPORTED REASON THAT HE REFUSED A DIRECT ORDER TO CARRY OUT A PROPER
WORK ASSIGNMENT. THE RECORD IS DEVOID OF ANY CREDIBLE EVIDENCE THAT THE
ORDER IN QUESTION HAD ANY RELATION WHATEVER TO MR. BEASLEY'S ACTIVITY AS
A UNION STEWARD. TO THE CONTRARY, THE RECORD SHOWS AFFIRMATIVELY, AND
WITHOUT CONTRADICTION, THAT ALL OTHER EMPLOYEES WERE ORDERED TO TAKE
PART IN CLEAN-UP ACTIVITIES AND, MOREOVER, THAT MR. BEASLEY HAD
PREVIOUSLY PERFORMED SUCH DUTIES. I HAVE NO DOUBT THAT AS MR. GIBSON
TESTIFIED, MR. BEASLEY NOT ONLY REFUSED TO PERFORM THE CLEAN-UP DUTIES
BUT THAT HE DID SO IN A MANNER DESIGNED TO PROVOKE A RESPONSE BY MR.
GIBSON. HAD MR. BEASLEY SIMPLY REFUSED TO CARRY OUT A PROPER WORK
ASSIGNMENT, HIS DISCHARGE FOR SUCH REASON MIGHT WELL HAVE BEEN
JUSTIFIED, NOTWITHSTANDING RESPONDENT'S VIOLATION OF SEC. 16(A)(1) IN
OTHER, UNRELATED, REGARDS. HOWEVER, MR. BEASLEY DID NOT SIMPLY REFUSE
TO CARRY OUT A PROPER WORK ASSIGNMENT AND NEITHER MR. GIBSON NOR MR.
DECKER TREATED THE INCIDENT AS A REFUSAL TO OBEY A DIRECT ORDER.
INDEED, MR. BEASLEY ASSERTED THAT SUCH WORK ASSIGNMENT WAS NOT PROPER
BECAUSE "ITS NOT IN MY JOB DESCRIPTION" AND WHEN HE ASKED TO SPEAK TO
MR. DECKER, MR. GIBSON AGREED. MR. DECKER ADMITTED THAT, WHEN HE LOOKED
AT THE JOB DESCRIPTION, "THE SPECIFIC REQUIREMENT WASN'T SPELLED OUT IN
HIS JOB DESCRIPTION" AND HE TOLD MR. BEASLEY HE, DECKER, "WOULD HAVE TO
FURTHER CHECK IT OUT, GET BACK WITH HIM CONCERNING THE REQUIREMENT TO
CLEAN UP IN HIS WORK AREA." IT IS QUITE TRUE THAT MR. DECKER TOLD MR.
BEASLEY THAT, IN THE MEANTIME, HE DO THE WORK AND GRIEVE IT LATER; BUT
THE RECORD SHOWS THAT, AT THIS POINT, IT WAS THE END OF THE SHIFT AND,
ACCORDINGLY, MR. BEASLEY DID NOT HAVE OCCASION TO RETURN TO HIS WORK
PLACE. THE RECORD DOES NOT SHOW THAT MR. BEASLEY THEREAFTER REFUSED TO
PERFORM CLEAN-UP WORK.
UNDER THE CIRCUMSTANCES, MR. BEASLEY'S QUESTIONING OF THE ASSIGNMENT
OF CLEAN-UP WORK WHICH, AS HE CONTENDED, WAS NOT SPELLED OUT IN HIS JOB
DESCRIPTION WAS NOT A SIMPLE REFUSAL TO PERFORM A PROPER WORK
ASSIGNMENT; MR. GIBSON DID NOT ORDER MR. BEASLEY TO PERFORM THE WORK
AFTER MR. BEASLEY ASSERTED IT WAS NOT INCLUDED IN HIS JOB DESCRIPTION,
BUT AGREED THAT MR. BEASLEY COULD SPEAK TO MR. DECKER. MR. DECKER'S
INSTRUCTIONS TO MR. BEASLEY, THAT HE SHOULD PERFORM THE WORK AND GRIEVE
LATER, WAS NOT COMPLIED WITH ONLY BECAUSE MR. BEASLEY'S SHIFT WAS OVER.
ACCORDINGLY, I DO NOT FIND A REFUSAL TO PERFORM A PROPER WORK ASSIGNMENT
AND THE FACT THAT RESPONDENT COUPLED THIS INCIDENT WITH THE EARLIER
ALLEGED SHORTCOMINGS AS "THE STRAW THAT BROKE THE CAMEL'S BACK" ALONE,
STRONGLY INFERS THAT THE SAME UNLAWFUL MOTIVE AND PURPOSE TAINTED THIS
FINAL ACT OF TERMINATION. MOREOVER, MR. GIBSON'S TREATMENT OF THIS
INCIDENT DIRECTLY SHOWS A CONTINUATION OF HIS PLAN TO GET RID OF MR.
BEASLEY. THUS, AS SET FORTH ABOVE, AFTER MR. BEASLEY ASSERTED THAT THE
ASSIGNMENT OF CLEAN-UP WORK WAS IMPROPER, AS OUTSIDE HIS JOB
DESCRIPTION, MR. GIBSON DID NOT ORDER BEASLEY TO PERFORM THE WORK, BUT
ACQUIESCED IN BEASLEY'S REQUEST TO SPEAK TO MR. DECKER; NEITHER MR.
GIBSON NOR MR. DECKER TREATED THE INCIDENT AS A REFUSAL TO OBEY A DIRECT
ORDER; NO DISCIPLINE WAS IMPOSED ON JUNE 5, 1979; MR. GIBSON'S
STATEMENT, IN HIS LETTER OF JUNE 16, 1979, THAT BEASLEY "ON JUNE 5,
1979, REFUSED TO CARRY OUT A PROPER WORK ASSIGNMENT", WAS NOT ACCURATE
AND, AT BEST, WAS ONLY PARTIALLY TRUE. THUS, ALTHOUGH THE INCIDENT WAS
VERY REAL, MR. GIBSON'S FAILURE TO DISCLOSE THE TRUE NATURE OF THE
INCIDENT, AND IN PARTICULAR HIS, GIBSON'S, OWN ACQUIESCENCE IN BEASLEY'S
DISCUSSING THE PROPRIETY OF THE WORK ASSIGNMENT WITH MR. DECKER, SHOWS A
FURTHER EFFORT TO "GET" BEASLEY BY MISREPRESENTATION OF THE INCIDENT OF
JUNE 5, 1979, AND MAKES HIS STATEMENT PRETEXTUAL IN NATURE. /17/
INDEED, MR. GIBSON'S CONDUCT IN ITS TOTALITY SHOWED A STEADFAST INTENT
TO "GET" BEASLEY AFTER BEASLEY BECAME ACTIVE AS A UNION STEWARD. THIS
APPEARS FROM THE REPEATED ACTS WHEREBY BEASLEY WAS SINGLED OUT FOR
DISPARATE TREATMENT; BY GIBSON'S QUESTIONING OF EMPLOYEES ABOUT
BEASLEY; BY HIS ATTEMPT TO OBTAIN A WRITTEN STATEMENT FROM MCNEELY TO
IMPLICATE BEASLEY; BY HIS STATEMENT TO BEASLEY ABOUT HIS TALKING TO
EMPLOYEES; BY HIS QUESTIONABLE RATING OF BEASLEY'S PERFORMANCE AS AN
EMPLOYEE IN LIGHT OF GIBSON'S OWN NUMERICAL EVALUATION OF BEASLEY BOTH
IN DECEMBER, 1978, AND IN MARCH, 1979, BEFORE BEASLEY BECAME ACTIVE ON
BEHALF OF THE UNION, AND BEASLEY'S STANDING IN HIS TRAINING CLASS; BY
THE FALSE AND PRETEXTUAL ALLEGATION CONCERNING THE MAY 9, 1979, ABSENCE
INCIDENT; AND BY HIS LESS THAN FORTHRIGHT STATEMENT CONCERNING THE JUNE
5, 1979, INCIDENT, ALL OF WHICH CONVINCINGLY DEMONSTRATED THAT THE
INCIDENT OF JUNE 5, 1979, /18/ WAS USED BY MR. GIBSON IN FURTHERANCE OF
HIS UNLAWFUL PURPOSE TO GET RID OF MR. BEASLEY BECAUSE OF BEASLEY'S
ACTIVITY ON BEHALF OF THE UNION.
THE REFUSED TO PERFORM A WORK ASSIGNMENT WAS NEVER ASSERTED AS
SUFFICIENT JUSTIFICATION FOR MR. BEASLEY'S TERMINATION, STANDING ALONE.
THUS, BUT FOR ASSERTED GROUNDS WHICH HAVE BEEN FOUND IMPREMISSIBLE
BECAUSE SUCH GROUNDS WERE IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE,
MR. BEASLEY WOULD NOT HAVE BEEN TERMINATED AS A PROBATIONARY EMPLOYEE.
HOWEVER, I DO NOT BELIEVE THE INCIDENT OF JUNE 5, 1979, CAN, OR SHOULD
BE, VIEWED IN ISOLATION UNDER THE CIRCUMSTANCES OF THIS CASE, AND, WHEN
VIEWED IN CONTEXT, I FIND THE REFUSAL TO PERFORM WORK INCIDENT OF JUNE
5, 1979, WAS SIMPLY A FURTHER INCIDENT IN FURTHERANCE OF MR. GIBSON'S
UNLAWFUL PURPOSE TO GET RID OF MR. BEASLEY BECAUSE OF HIS ACTIVITY ON
BEHALF OF THE UNION. IF VIEWED SEPARATELY, I, NEVERTHELESS, HAVE FOUND
MR. GIBSON'S STATEMENT IN HIS LETTER OF JUNE 16, 1979, WAS FATALLY
FLAWED FOR THE REASONS SET FORTH ABOVE, AND WAS AN EFFORT TO "GET"
BEASLEY BY MISREPRESENTATION OF THE INCIDENT OF JUNE 5, 1979, WHICH
RENDERED HIS STATEMENT PRETEXTUAL IN NATURE. ACCORDINGLY, I FURTHER
FIND THAT MR. BEASLEY WAS TERMINATED, AT LEAST IN PART, BECAUSE OF HIS
UNION ACTIVITY IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE.
HAVING FOUND THAT RESPONDENT HAS ENGAGED AND IS ENGAGING IN CERTAIN
CONDUCT IN VIOLATION OF SEC. 16(A)(1) OF THE STATUTE, IT IS RECOMMENDED
THAT THE AUTHORITY ISSUE THE FOLLOWING:
ORDER
PURSUANT TO SECTION 18(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7), AND
SECTION 2423.26 OF THE FINAL RULES AND REGULATIONS, 5 C.F.R. CHAPTER
XIV, SEC. 2423.26, FED. REG. VOL. 45, NO. 12, JANUARY 17, 1980, THE
AUTHORITY HEREBY ORDERS THAT THE OKLAHOMA CITY AIR LOGISTICS CENTER
(AFLC), TINKER AIR FORCE BASE SHALL:
1. CEASE AND DESIST FROM:
A) INTERROGATING EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE THEY
GOT INFORMATION ABOUT
JOINING AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
916, THE EXCLUSIVE
REPRESENTATIVE OF ITS EMPLOYEES, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
B) PROMULGATING, MAINTAINING, OR ENFORCING ANY DIRECTIVE, REGULATION,
OR RULE WHICH
PROHIBITS OR PREVENTS EMPLOYEES FROM SOLICITING ANY OTHER EMPLOYEES
AT THEIR WORKPLACE DURING
NON-WORK TIME, SPECIFICALLY INCLUDING PAID MEAL AND BREAK PERIODS, ON
BEHALF OF THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY OTHER
LABOR ORGANIZATION,
PROVIDING THERE IS NO INTERFERENCE WITH THE WORK OF THE AGENCY.
C) DISCHARGING, DISCIPLINARY, OR TREATING IN A DISPARATE MANNER JOHN
BEASLEY IN REGARD TO
HIS CONDITIONS OF EMPLOYMENT IN ORDER TO INTERFERE WITH, RESTRAIN, OR
COERCE HIM IN THE
EXERCISE OF ANY RIGHT ASSURED BY THE STATUTE.
D) APPLYING AND/OR ENFORCING EXISTING PROCEDURES, POLICIES AND
REGULATIONS, IN A DISPARATE
MANNER WHICH INTERFERES WITH, RESTRAIN, OR COERCES MEMBERS OF THE
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY OTHER LABOR
ORGANIZATION.
E) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ANY EMPLOYEE IN
THE EXERCISE BY THE EMPLOYEES OF ANY RIGHT UNDER THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE STATUTE:
A) OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS FORMER
OR SUBSTANTIALLY
EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY OR TO HIS
OTHER RIGHTS AND PRIVILEGES,
AND MAKE HIM WHOLE, CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS,
FOR ANY LOSSES OF INCOME
HE MAY HAVE SUFFERED BY REASON OF THE UNLAWFUL TERMINATION OF JOHN
BEASLEY AS A PROBATIONARY
EMPLOYEE, BY PAYING TO HIM A SUM OF MONEY EQUAL TO THE AMOUNT HE
WOULD HAVE EARNED OR RECEIVED
FROM THE DATE OF HIS TERMINATION TO THE DATE OF THE OFFER OF
REINSTATEMENT, LESS ANY AMOUNTS
EARNED BY SUCH EMPLOYEE THROUGH OTHER EMPLOYMENT DURING THE ABOVE
NOTED PERIOD.
B) POST AT ITS FACILITIES AT TINKER AIR FORCE BASE 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 COMMANDING OFFICER, OKLAHOMA CITY AIR LOGISTICS
CENTER (AFLC), TINKER AIR
FORCE BASE, 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,
INCLUDING BUT NOT LIMITED TO EMPLOYEES OF ITS AIR FREIGHT TERMINAL,
ARE CUSTOMARILY
POSTED. THE COMMANDING OFFICER SHALL TAKE REASONABLE STEPS TO INSURE
THAT SAID NOTICES ARE
NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
NOTIFY THE REGIONAL
DIRECTOR OF REGION 6, ROOM 450, OLD POST OFFICE BUILDING, BRYAN &
ERVAY STREETS, DALLAS, TEXAS
75221, 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: MAY 23, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER BY 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 INTERROGATE EMPLOYEES ABOUT UNION MEMBERSHIP AND/OR WHERE
THEY GOT INFORMATION ABOUT JOINING AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916, THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT PROMULGATE, MAINTAIN, OR ENFORCE ANY DIRECTIVE,
REGULATION, OR RULE WHICH PROHIBITS OR PREVENTS EMPLOYEES FROM
SOLICITING ANY OTHER EMPLOYEES AT THE WORKPLACE DURING NON-WORK TIME,
SPECIFICALLY INCLUDING PAID MEALS AND BREAK PERIODS, ON BEHALF OF THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY
OTHER LABOR ORGANIZATION, PROVIDING THERE IS NO INTERFERENCE WITH THE
WORK OF THE AGENCY.
WE WILL NOT DISCHARGE, DISCIPLINE, OR TREAT IN A DISPARATE MANNER
JOHN BEASLEY IN REGARD TO HIS CONDITIONS OF EMPLOYMENT IN ORDER TO
INTERFERE WITH, RESTRAIN, OR COERCE HIM IN THE EXERCISE OF ANY RIGHT
ASSURED BY THE STATUTE.
WE WILL NOT APPLY AND/OR ENFORCE EXISTING PROCEDURES, POLICIES AND
REGULATIONS IN A DISPARATE MANNER WHICH INTERFERES WITH, RESTRAINS, OR
COERCES MEMBERS IN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 916, OR ANY OTHER LABOR ORGANIZATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
UNDER THE STATUTE.
WE WILL OFFER JOHN BEASLEY IMMEDIATE AND FULL REINSTATEMENT TO HIS
FORMER OR SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS
SENIORITY OR TO HIS OTHER RIGHTS AND PRIVILEGES, AND MAKE HIM WHOLE,
CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME
HE MAY HAVE SUFFERED BY REASON OF OUR UNLAWFUL TERMINATION OF HIS
EMPLOYMENT DURING HIS PROBATIONARY PERIOD, BY PAYING TO HIM A SUM OF
MONEY EQUAL TO THE AMOUNT WHICH HE WOULD HAVE EARNED OR RECEIVED FROM
THE DATE OF HIS TERMINATION TO THE DATE OF THE OFFER OF REINSTATEMENT,
LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THE ABOVE
NOTED PERIOD.
(AGENCY OR ACTIVITY)
DATED:
(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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 6, WHOSE
ADDRESS IS: ROOM 450, OLD POST OFFICE BUILDING, BRYAN & ERVAY STREETS,
DALLAS, TEXAS 75221 (TELEPHONE NUMBER 214-767-4996).
--------------- FOOTNOTES: ---------------
/1/ SECTION 7116(E) PROVIDES:
(E) THE EXPRESSION OF ANY PERSONAL VIEW, ARGUMENT, OPINION OR THE
MAKING OF ANY STATEMENT
WHICH--
(1) PUBLICIZES THE FACT OF A REPRESENTATIONAL ELECTION AND ENCOURAGES
EMPLOYEES TO EXERCISE
THEIR RIGHT TO VOTE IN SUCH ELECTION,
(2) CORRECTS THE RECORD WITH RESPECT TO ANY FALSE OR MISLEADING
STATEMENT MADE BY ANY
PERSON, OR
(3) INFORMS EMPLOYEES OF THE GOVERNMENT'S POLICY RELATING TO
LABOR-MANAGEMENT RELATIONS AND
REPRESENTATION,
SHALL NOT, IF THE EXPRESSION CONTAINS NO THREAT OF REPRISAL OR FORCE
OR PROMISE OF BENEFIT
OR WAS NOT MADE UNDER COERCIVE CONDITIONS, (A) CONSTITUTE AN UNFAIR
LABOR PRACTICE UNDER ANY
PROVISION OF THIS CHAPTER, OR (B) CONSTITUTE GROUNDS FOR THE SETTING
ASIDE OF ANY ELECTION
CONDUCTED UNDER ANY PROVISIONS OF THIS CHAPTER.
/2/ THE ADMINISTRATIVE LAW JUDGE INADVERTENTLY FAILED TO REMEDY THE
IMPROPER DISCIPLINE OF EMPLOYEE BEASLEY WHICH WAS BASED ON HIS
SOLICITATION ACTIVITY. SUCH INADVERTENCE IS CORRECTED IN PARAGRAPH 2(B)
BELOW.
/3/ HEREINAFTER, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE
STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
PORTION OF THE STATUTE REFERENCE. FOR EXAMPLE, SECTION 7116(A)(1)
SIMPLY AS "16(A)(1)"; HOWEVER, UNLESS OTHERWISE SPECIFICALLY INDICATED,
ALL SUCH REFERENCE ARE TO CHAPTER 71 OF THE STATUTE.
/4/ INTERIM RULES AND REGULATIONS WERE ISSUED ON JULY 30, 1979,
EFFECTIVE JULY 30, 1979, FED. REG., VOL. 44, NO. 147, JULY 30, 1979;
FINAL RULES AND REGULATIONS WERE ISSUED JANUARY 17, 1980, EFFECTIVE
JANUARY 28, 1980, FED. REG., VOL. 45, NO. 12, JANUARY 17, 1980. THE
FINAL RULES AND REGULATIONS WILL GOVERN ALL MATTERS HEREINAFTER.
/5/ GENERAL COUNSEL CITES A STATEMENT OF AN ADMINISTRATIVE LAW JUDGE
IN FEDERAL STAINLESS SINK, DIVISION OF UNARCO INDUSTRIES, INC., 197 NLRB
489, 491(1972), TO THE EFFECT THAT EMPLOYEES WHO TESTIFY AGAINST THEIR
EMPLOYERS KNOW THEY ARE IN PERIL OF ECONOMIC REPRISAL AND ARE NOT LIKELY
TO TESTIFY FALSELY AND, THEREFORE, EMPLOYEES MUST BE CREDITED. WHETHER
THE STATEMENT QUOTED BY GENERAL COUNSEL IN HIS BRIEF IN THIS CASE, WHICH
HAS ALSO BEEN SET FORTH IN OTHER BRIEFS, WAS PROPER OR JUSTIFIED IN THE
CASE IN WHICH IT AROSE, I, OF COURSE, EXPRESS NO OPINION WHATEVER. IT
IS CONCEIVABLE THAT IN CONTEXT OF THE CASE IN WHICH THE STATEMENT WAS
MADE IT WAS WHOLLY PROPER; BUT AS AUTHORITY FOR WHICH GENERAL COUNSEL
CITES IT, NAMELY, THAT ALL EMPLOYEE WITNESSES MUST BE CREDITED, IT IS AN
ASININE ASSERTION WHICH, CHARITABLY, CAN BE ONLY BE DESCRIBED AS PURE
HOGWASH. EMPLOYERS COULD ASSERT WITH AT LEAST EQUAL EFFICACY THAT,
BECAUSE OF THE FEAR OF UNION AND PEER PRESSURE, NO EMPLOYEE WITNESS
SHOULD BE CREDITED IN ANY SITUATION PRESENTING A CONFLICT. OBVIOUSLY,
ANY SUCH SUGGESTION WOULD BE EQUALLY ASININE. NOTHING IN MY EXPERIENCE
HAS EVER DEMONSTRATED THAT ANY CLASS OF WITNESSES IS SO RELIABLE THAT
THEIR TESTIMONY MUST ALWAYS BE CREDITED, BE THEY EMPLOYEES, OR
MANAGEMENT OFFICIALS, OR LAWYERS, OR MINISTERS, ETC. CREDIBILITY IS NOT
NECESSARILY, OR EVEN PRIMARILY, THE RESULT OF A DISPOSITION TO TESTIFY
FALSELY, BUT VERY OFTEN IS ATTRIBUTABLE TO THE FACT THAT THE INDIVIDUAL
IS A POOR OBSERVER AND/OR HAS LIMITED ABILITY TO ACCURATELY RECALL WHAT
HE HAS SEEN OR HEARD. UNTIL THE MILLENNIUM ARRIVES WE MUST EVALUATE THE
CREDIBILITY OF EACH WITNESS INDIVIDUALLY AS BEST WE MAY, INCLUDING
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR.
OF COURSE, FOR REASONS STATED ABOVE, I REJECT ABSOLUTELY THE
PROPOSITION THAT ANY CLASS OF WITNESSES MUST, OR EVEN SHOULD, BE
CREDITED OVER ANY OTHER CLASS OF WITNESSES.
/6/ GENERAL COUNSEL IN HIS BRIEF, IV FACTS, N. 3, STATES THAT THE
HOURS OF THE DAY SHIFT WERE, AND ARE, "8 A.M. TO 6 P.M." I AM AWARE OF
THIS REFERENCE IN THE TRANSCRIPT AT P. 22; BUT IN CONTEXT IT IS
APPARENT THAT THE INITIAL REFERENCE AT LINE 12 WAS TO MILITARY TIME AND
SHOULD HAVE BEEN 1600, NOT 6:00 AS THE TRANSCRIPT SHOWS, WHICH IS
CLEARLY SHOWN THEREAFTER AT LINE 16.
/7/ MR. GIBSON DENIED DISCUSSING THE UNION WITH MR. MILUS. IN ITS
BRIEF, RESPONDENT STATES,
"MR. MILUS' TESTIMONY IS, HOWEVER, OPEN TO SOME QUESTION IN THAT THE
TESTIMONY AT TRIAL AND
SHIFT ROSTERS ENTERED AS EVIDENCE CLEARLY SHOW THAT MR. GIBSON WAS
NOT TRANSFERRED ONTO
GRAVESHIFT AS A SUPERVISOR UNTIL 25 MARCH 1979."
THE SHIFT ROSTERS (G.C. EXH. 8) DO, INDEED, SHOW THAT MR. GIBSON WAS
NOT TRANSFERRED TO THE GRAVEYARD SHIFT UNTIL MARCH 25, 1979 (HE WAS ON
THE GRAVE SHIFT 12/31/78 TO 1/6/79); AND THAT MR. MILUS WAS TRANSFERRED
TO THE GRAVE SHIFT MARCH 31, 1979; BUT, OBVIOUSLY MR. GIBSON, WHO
WORKED SOMEWHERE IN BETWEEN JANUARY 6, 1979, AND MARCH 25, 1979, DOES
NOT, SO FAR AS I CAN DETERMINE, APPEAR ON ANY ROSTER FOR THE PERIOD
PRIOR TO MARCH 25; NOR DOES MR. MILUS APPEAR ON ANY ROSTER PRIOR TO
MARCH 31, 1979, ALTHOUGH THE RECORD SHOWS THAT HE WAS EMPLOYED ON
FEBRUARY 1, 1979, AND HE TESTIFIED THAT HE WAS NOT TRANSFERRED TO THE
GRAVE SHIFT UNTIL THE END OF MARCH OR APRIL. FROM MR. GIBSON'S
TESTIMONY, TR. 27-28, IT CLEARLY APPEARS THAT HE WAS ASSIGNED TO THE DAY
SHIFT PRIOR TO HIS TRANSFER TO THE GRAVE SHIFT ON MARCH 25. OF
EMPLOYEES WHO TESTIFIED, THE RECORD SHOWED A PRACTICE BY RESPONDENT TO
START EMPLOYEES ON THE DAY SHIFT; ACCORDINGLY, AS MR. MILUS TESTIFIED,
WITHOUT CONTRADICTION, THAT MR. GIBSON WAS HIS SUPERVISOR IN FEBRUARY, I
FIND NOTHING THAT CASTS THE SLIGHTEST DOUBT ON MR. GIBSON HAVING BEEN
MR. MILUS' SUPERVISOR IN FEBRUARY, 1979.
/8/ MR. BEASLEY TESTIFIED HE RECEIVED 98; BUT, IN CONTEXT (SEE, TR.
108-109) IT SEEMS MORE PROBABLE THAT HE MEANT 97, I.E., THE SAME RATING
HE HAD RECEIVED IN DECEMBER.
/9/ G.C. EXHIBIT 8 SHOWS THE SWING SHIFT ROSTER ONLY FROM APRIL 1,
1979.
/10/ I SPECIFICALLY DO NOT CREDIT MR. BEASLEY'S TESTIMONY (TR. 162)
THAT HE WORKED WITH MR. PAINTER ON A SECOND PALLET; NOR DO I CREDIT
EITHER MR. BEASLEY'S TESTIMONY OR MR. GIBSON'S TESTIMONY (TR. 42) THAT
MR. PAINTER HAD CHECKED OFF ENOUGH CARGO FOR ANOTHER PALLET. TO THE
CONTRARY, I CREDIT MR. PAINTER'S TESTIMONY THAT "I WAS JUST WORKING IT
UP . . . I WAS STILL LOOKING FOR CARGO." (TR. 196). INDEED, FROM THE
ENTIRE RECORD INCLUDING MR. PAINTER'S TESTIMONY, IT IS OBVIOUS THAT MR.
PAINTER HAD DONE NO MORE THAN SET OUT A SECOND PALLET AND HAD JUST BEGUN
LOOKING FOR CARGO.
/11/ MR. GARNER IS NOT SHOWN ON THE SHIFT ROSTER AS A SUPERVISOR
(G.C. EXH. 8); HOWEVER, THE COMPLAINT ALLEGED THAT HE WAS A SUPERVISOR
AND RESPONDENT'S ANSWER ADMITS THIS ALLEGATION.
/12/ THE SICK ABUSE LETTER, ALSO ISSUED TO MR. BEASLEY ON MAY 12,
1979 (G.C. EXH. 16), WAS INCORRECT AS TO THE ASSERTION OF A NEGATIVE
LEAVE BALANCE, WHEREAS, MR. BEASLEY HAD ACCUMULATED 32 HOURS OF UNUSED
SICK LEAVE THROUGH THE APPLICABLE PAYROLL PERIOD; AND WAS INCORRECT AS
TO THE NUMBER OF HOURS OF SICK LEAVE USED, 24 RATHER THAN 56 HOURS.
/13/ "(C) THE EXPRESSING OF ANY VIEWS, ARGUMENT, OR OPINION, OR THE
DISSEMINATION THEREOF, WHETHER IN WRITTEN, PRINTED, GRAPHIC, OR VISUAL
FORM, SHALL NOT CONSTITUTE OR BE EVIDENCE OF AN UNFAIR LABOR PRACTICE
UNDER ANY OF THE PROVISIONS OF THIS ACT, IF SUCH EXPRESSION CONTAINS NO
THREAT OF REPRISAL OR FORCE OR PROMISE OF BENEFIT." (29 U.S.C. 158(C)).
/14/ THE INTERROGATION OF MR. MCNEELY AND MR. BUCKHEISTER, DISCUSSED
HEREINAFTER, IS TREATED SEPARATELY HEREINAFTER.
/15/ RESPONDENT STATES THAT SECTION 4.11 OF THE MASTER LABOR
AGREEMENT BETWEEN AIR FORCE LOGISTICS COMMAND AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES PROVIDES:
"MOREOVER, OFFICIAL TIME IS PROHIBITED FOR ANY ACTIVITY PERFORMED BY
AN EMPLOYEE RELATING
TO THE INTERNAL BUSINESS OF THE UNION (INCLUDING THE SOLICITATION OF
MEMBERSHIP . . . "
RESPONDENT'S REFERENCE TO THE MASTER AGREEMENT AS G.C. EXH. 3 IS IN
ERROR. RESPONDENT'S EXHIBITS 3, AND 4 WERE NOT SUPPLIED TO THE
REPORTER. I FULLY ACCEPT RESPONDENT'S QUOTATION OF SECTION 4.11, WHICH
IS SUPPORTED BY THE TESTIMONY OF MR. KELLY (TR. 289), ALTHOUGH I DO NOT
HAVE THE ACTUAL DOCUMENT.
/16/ I HAVE CONSIDERED GENERAL COUNSEL'S FURTHER CONTENTION THAT MR.
GIBSON'S REMARKS TO MR. BUCKHEISTER CREATED THE IMPRESSION OF
SURVEILLANCE; BUT I FIND INSUFFICIENT EVIDENCE TO WARRANT ANY SUCH
FINDING. ACCORDINGLY, THE ALLEGATIONS OF PARAGRAPH 5(C) OF THE
COMPLAINT ARE DISMISSED. NO EVIDENCE WAS PRESENTED IN SUPPORT OF
PARAGRAPH 5(D) OF THE COMPLAINT, AND, THEREFORE, THE ALLEGATIONS OF
PARAGRAPH 5(D) OF THE COMPLAINT ARE, ALSO, DISMISSED.
/17/ I AM FULLY AWARE THAT ARTICLE XXV, OF THE LOCAL AGREEMENT (G.C.
EXH. 2) CONTAINS PROVISIONS FOR RESOLUTION OF DISPUTES CONCERNING
POSITION DESCRIPTIONS. I NEITHER CONDONE THE QUESTIONING OF WORK
ASSIGNMENT, AS BEING OUTSIDE A POSITION DESCRIPTION, BY THE REFUSAL OF
AN INDIVIDUAL EMPLOYEE TO PERFORM THE ASSIGNMENT, NOR IS ANYTHING
CONTAINED HEREIN TO BE CONSTRUED AS AUTHORIZING AN EMPLOYEE TO REFUSE TO
PERFORM WORK. TO THE CONTRARY, ANY EMPLOYEE WHO REFUSES TO PERFORM
WORK
DOES SO AT HIS PERIL. ON THE OTHER HAND, WHERE, AS HERE, THE EMPLOYER
ALLOWS AN EMPLOYEE TO "APPEAL" THE ASSIGNMENT OF WORK AS BEING OUTSIDE
HIS JOB, OR POSITION, DESCRIPTION, IMPOSITION OF DISCIPLINE FOR HAVING
DONE SO, WITH THE EMPLOYER'S ACQUIESCENCE, LOSES VALIDITY AS THE REASON
FOR THE DISCIPLINE AND WHERE, AS HERE, UNLAWFUL MOTIVATION FOR DISCHARGE
IS SHOWN, THE CONCLUSION IS UNAVOIDABLE THAT THE DISCIPLINE WAS, AT
LEAST IN PART, IN FURTHERANCE OF SUCH UNLAWFUL PURPOSE. OF COURSE,
ABSENT EVIDENCE OF UNLAWFUL PURPOSE, DISCIPLINE, HOWEVER IMPROPER WOULD
NOT CONSTITUTE AN UNFAIR LABOR PRACTICE.
GENERAL COUNSEL HAS ASSERTED THAT RESPONDENT CONDONED MR. BEASLEY'S
REFUSAL TO PERFORM WORK ASSIGNED ON JUNE 5, 1979, BY ITS FAILURE TO
IMPOSE DISCIPLINE UNTIL JUNE 16, 1979. TO A DEGREE, I AGREE. I HAVE NO
DOUBT THAT THE FAILURE TO IMPOSE DISCIPLINE ON JUNE 5, 1979, SHOWED THAT
NEITHER MR. GIBSON NOR MR. DECKER TREATED MR. BEASLEY'S CONDUCT AS A
REFUSAL TO CARRY OUT AN ORDER; BUT I DO NOT REACH THE QUESTION OF
CONDONATION. TO THE CONTRARY, I VIEW THIS CASE MUCH MORE NARROWLY,
NAMELY, THAT AFTER BEASLEY ASSERTED THAT CLEAN-UP WORK WAS OUTSIDE HIS
JOB DESCRIPTION, MR. GIBSON DID NOT ORDER HIM TO PERFORM THE WORK, BUT
ACQUIESCED IN MR. BEASLEY'S "APPEAL" OF THE PROPRIETY OF THE ASSIGNMENT
TO MR. DECKER. MR. DECKER'S TESTIMONY, FOR EXAMPLE, SHOWS THAT HE DID
NOT VIEW MR. BEASLEY'S CONDUCT AS HAVING BEEN A REFUSAL TO OBEY A DIRECT
ORDER. THUS, AFTER TELLING BEASLEY HE WOULD CHECK IT OUT, HE STATED,
"AND THAT, IN THE MEANTIME, THAT HE NOT DISOBEY HIS SUPERVISOR'S
INSTRUCTION, BUT COMPLAIN ABOUT THE RIGHT OR WRONG AFTER THE
ACCOMPLISHMENT OF THE DUTIES." (TR. 330).
/18/ I AM AWARE THAT THE DATE OF THIS INCIDENT IS VARIOUSLY REFERRED
TO AS "JUNE 3, 1979" AND AS "JUNE 5, 1979." I FIND IT IMMATERIAL TO
RESOLVE THIS CONFLICT AS THERE IS NO DISPUTE AS TO ITS OCCURRENCE
WHETHER THE INCIDENT OCCURRED ON JUNE 3, 1979, OR ON JUNE 5, 1979. I
HAVE USED THE JUNE 5, 1979, DATE AS THIS IS THE DATE SET FORTH IN MR.
GIBSON'S LETTER OF JUNE 16, 1979.