[ v07 p102 ]
07:0102(16)CA
The decision of the Authority follows:
7 FLRA No. 16
LONG BEACH NAVAL SHIPYARD
LONG BEACH, CALIFORNIA
Respondent
and
FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO
Charging Party
Case No. 8-CA-407
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
ENGAGED IN AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED JUDGE'S RECOMMENDED
DECISION AND ORDER. NO EXCEPTIONS WERE FILED TO THE JUDGE'S RECOMMENDED
DECISION AND ORDER.
THEREFORE, 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 IN THE SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE
OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
CONCLUSIONS, AND RECOMMENDATIONS.
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH,
CALIFORNIA SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING OR REFUSING TO IMPLEMENT ANY AGREEMENTS REACHED WITH
DESIGNATED REPRESENTATIVES OF THE FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF BARGAINING UNIT
EMPLOYEES, IN SCHEDULED UNION-AGENCY NEGOTIATION SESSIONS.
(B) REFUSING TO ALLOW EMPLOYEES OF ITS SUPPLY AND PUBLIC WORKS
DEPARTMENTS TO DEPART WORK AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, AND TO ALLOW SUCH
EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT HOURS CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENT.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON THE
0730-1600 SHIFT IN CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER 30,
1979, WITH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO DEVIATE
SHIFT HOURS FOR EMPLOYEES IN THOSE DEPARTMENTS.
(B) POST AT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA,
COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY.
UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING
OFFICER AT SAID ACTIVITY 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.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VIII, 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., OCTOBER 30, 1981.
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO IMPLEMENT ANY AGREEMENTS REACHED WITH
DESIGNATED REPRESENTATIVES OF THE FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR BARGAINING UNIT
EMPLOYEES, IN SCHEDULED UNION-AGENCY NEGOTIATION SESSIONS.
WE WILL NOT REFUSE TO ALLOW EMPLOYEES OF THE SUPPLY AND PUBLIC WORKS
DEPARTMENTS TO DEPART WORK AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, AND ALLOW SUCH
EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT HOURS CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON
THE 0730-1600 SHIFT IN CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER
30, 1979, WITH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO
DEVIATE SHIFT HOURS FOR EMPLOYEES IN THOSE DEPARTMENTS.
. . . (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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: WORLD
TRADE CENTER, 10TH FLOOR, 350 S. FIGUEROA ST., LOS ANGELES, CALIFORNIA
90071.
-------------------- ALJ$ DECISION FOLLOWS --------------------
ROBERT F. GRIEM AND
RICHARD A. SCHULTZ
FOR THE RESPONDENT
PATRICIA F. MAYER AND
JOSEPH SWERDZEWSKI, ESQ.
FOR THE GENERAL COUNSEL
FRANK RODRIGUEZ
FOR THE CHARGING PARTY
DECISION
I. STATEMENT OF THE CASE
THIS MATTER AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., HEREIN CALLED
THE STATUTE AS THE RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
ORIGINALLY ISSUED ON MAY 23, 1980, /1/ BASED UPON A CHARGE FILED BY THE
FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, HEREIN CALLED THE
UNION.
THE COMPLAINT ALLEGES THAT LONG BEACH NAVAL SHIPYARD, LONG BEACH,
CALIFORNIA, HEREIN CALLED THE RESPONDENT REPUDIATED AN AGREEMENT
CONCERNING HOURS OF WORK FOR CERTAIN EMPLOYEES ARRIVED AT WITH THE UNION
IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
A HEARING WAS HELD ON JULY 25, 1980 IN LONG BEACH, CALIFORNIA. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
HEREIN. BOTH PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
CONCLUSIONS.
FINDINGS OF FACT
RESPONDENT AND THE UNION, AT ALL TIMES RELEVANT TO THIS MATTER, WERE
PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING AN APPROPRIATE
UNIT OF ALL UNGRADED EMPLOYEES AT RESPONDENT'S LONG BEACH FACILITY.
THE PARTIES' COLLECTIVE BARGAINING AGREEMENT COVERING THEIR
RELATIONSHIP BETWEEN FEBRUARY 1974 AND DECEMBER 1978 PROVIDED AT ARTICLE
8, SECTION 4 THE FOLLOWING:
NORMALLY, THE REGULARLY ESTABLISHED EIGHT-HOUR WORK SHIFT FOR ALL
EMPLOYEES WITHIN THE UNIT
SHALL BE AS FOLLOWS:
A. DAY SHIFT; (1ST SHIFT) - 0730-1610 WITH A 40-MINUTE LUNCH HOUR
PERIOD FROM 1130 TO 1210
OR 0730 TO 1600 WITH A 30-MINUTE LUNCH PERIOD FROM 1200 TO 1230.
B. SWING SHIFT; (2ND SHIFT) - 1545 TO 0015 WITH A 30-MINUTE LUNCH
PERIOD FROM 1945 TO
2015.
C. GRAVEYARD SHIFT; (3RD SHIFT) - 0000 TO 0800 WITH NO SCHEDULED
LUNCH PERIOD.
A. NEGOTIATIONS IN 1978
IN APRIL 1978 THE PARTIES BEGAN NEGOTIATIONS FOR A NEW COLLECTIVE
BARGAINING AGREEMENT. ARTICLE 8 SECTION 4 ABOVE, WHICH PERTAINED TO
HOURS OF WORK AND, IS CRITICAL TO THIS MATTER, WAS DISCUSSED ON SEVERAL
OCCASIONS. SOMETIME DURING AUGUST 1978, RESPONDENT'S REPRESENTATIVES
EXPRESSED THE VIEW THAT RESPONDENT COULD NOT DISCERN WHICH EMPLOYEES
WERE SCHEDULED TO LEAVE THE SHIPYARD AT 1600 AND WHICH WERE TO LEAVE AT
1610. RESPONDENT THEN PRESENTED A WRITTEN PROPOSAL AT A NEGOTIATION
SESSION WHICH WOULD ALLOW FOR ONLY ONE DAY SHIFT, THAT BEGIN FROM
0730-1610. THE 0730-1600 SHIFT LANGUAGE OF THE PRIOR AGREEMENT HAD BEEN
DELETED. THE UNION RESPONDED, EXPRESSING CONCERN ABOUT THE NEED TO
RETAIN THE 0730-1600 SHIFT, REITERATING THAT THERE HAD TO BE EXCEPTIONS
TO THE 1610 HOURS.
ACCORDING TO THE UNION, FINAL AGREEMENT WAS REACHED ON ARTICLE 8,
SECTION 4 SOMETIME DURING AUGUST 1978. DURING THE NEGOTIATIONS
RESPONDENT PROPOSED THAT THE WORK 'NORMALLY' BE DELETED FROM ARTICLE 8,
SECTION 4. THE UNION TOOK THE POSITION THAT THE DELETION OF THIS WORD
WAS UNACCEPTABLE, FOR THAT COULD MEAN THAT ALL EMPLOYEES WOULD BE
REQUIRED TO WORK ONLY THOSE SHIFTS WRITTEN INTO THE CONTRACT, WHEN IT
WAS OBVIOUS AND WELL KNOWN THAT THERE WERE MANY EMPLOYEES WHOSE SHIFTS
DID NOT APPEAR IN THE WRITTEN LANGUAGE OF THE CONTRACT. BOTH PARTIES
ADMITTEDLY DID NOT KNOW WHICH EMPLOYEES WERE CURRENTLY ON THE 1600
SHIFT. ACCORDING TO UNION NEGOTIATORS RODRIQUEZ AND COPE, THE UNION
INSISTED ON THE RETENTION OF THE WORK "NORMALLY" TO COVER THOSE
SITUATIONS WHERE AN EMPLOYEE WORKED A SHIFT OTHER THAN THE STANDARD
SHIFT LISTED IN THE CONTRACT. "NORMALLY" WAS SUBSEQUENTLY RETAINED IN
THE FINAL LANGUAGE OF ARTICLE 8, SECTION 4 AND THE DAY OR 1ST SHIFT
HOURS WERE "0730 TO 1610". AS ENUMERATED DURING THE HEARING BECAUSE OF
VARIOUS DIFFERING FUNCTIONS, MANY DIFFERENT SHIFTS EXISTED AT THE
SHIPYARD.
AT SOME TIME DURING NEGOTIATIONS, UNION REPRESENTATIVE ROBERT COPE
TESTIFIED THAT HE SUGGESTED THAT IN ORDER TO IDENTIFY WHICH EMPLOYEES
WERE ON THE 1600 SHIFT, EITHER PARTY SHOULD SUBMIT TO THE EMPLOYEE
RELATIONS OFFICE, A LETTER LISTING THOSE EMPLOYEES CURRENTLY ON THE 1600
SHIFT. THE HOURS FOR THESE EMPLOYEES WOULD THEN BE AUTOMATICALLY
RETAINED WHEN THE NEW CONTRACT WAS IMPLEMENTED. BOTH COPE AND FRANK
RODRIQUEZ, THE UNION PRESIDENT TESTIFIED THAT RESPONDENT'S
REPRESENTATIVE AGREED TO THIS IDEA. COPE ALSO RECALLED RESPONDENT'S
REPRESENTATIVE MCINTOSH COMMENTING ON THE LISTS SAYING: "ONCE THIS . .
. LIST IS MADE UP THERE WILL BE NO SON-OF-A-BITCH WHO IS GOING TO CHANGE
IT." ACCORDING TO THE UNION, IT WAS INDICATED THAT ONLY THOSE EMPLOYEES
NOT DIRECTLY RELATED TO THE PRODUCTION FUNCTION OF THE SHIPYARD COULD BE
INCLUDED IN THE LISTS. THOSE EMPLOYEES WHOSE WORK INVOLVED PRODUCTION
WOULD STILL BE ON THE 1610 SHIFT. RODRIQUEZ AND COPE ALSO TESTIFIED
THAT ONCE THE LETTERS WERE SUBMITTED, WRITTEN "SIDEBAR" AGREEMENTS
CONTAINING THOSE TERMS WOULD BE ENTERED INTO AS A FORMALITY. ACCORDING
TO THE UNION, THE SUBMISSION OF THE LETTERS AND CREATION OF THE FORMAL
AGREEMENTS WAS TO TAKE PLACE PRIOR TO THE IMPLEMENTATION OF THE
CONTRACT. THE UNION WAS APPARENTLY SATISFIED THAT THE USE OF THE ABOVE
PROCEDURE IN CONJUNCTION WITH THE AGREEMENT WOULD PROTECT THE SHIFT.
ACCORDING TO UNION PRESIDENT RODRIQUEZ, THE UNION WAS THEREFORE
UNCONCERNED ABOUT THE DELETION OF THE 0730-1600 SHIFT FROM THE CONTRACT
AND WAS NOT CONCERNED THAT IT HAD LOST A SHIFT. IN FACT, BOTH RODRIGUEZ
AND COPE STATED, THAT AUTOMATIC APPROVAL WOULD APPLY TO THOSE ON THE
1600 SHIFT.
FRANK R. MCINTOSH, ONE OF RESPONDENT'S NEGOTIATORS, TESTIFIED WITH
REGARD TO THE 1978 NEGOTIATIONS THAT THE UNION HAD EXPRESSED CONCERN
DURING NEGOTIATIONS OVER THE CHANGE IN SHIFTS HOURS FOR EMPLOYEES ON THE
0730-1600 SHIFT. CONCERNING ARTICLE 8, SECTION 4 MCINTOSH STATED, THAT
THE AGREEMENT MADE DURING NEGOTIATIONS PROVIDED THAT AFTER RATIFICATION
OF THE CONTRACT, THE UNION COULD MAKE REQUESTS REGARDING THOSE EMPLOYEES
WHO HAD NO DIRECT RELATIONSHIP WITH THE PRODUCTION DEPARTMENT. MCINTOSH
TESTIFIED THAT:
"IT WAS WITHIN THIS CONTEXT, THAT AFTER THE CONTRACT WAS RATIFIED AND
PUT INTO EFFECT, THEN
THE COUNCIL COULD COME BACK WITH A REQUEST TO DISCUSS-- APPRISE US OF
SPECIFIC REQUESTS FOR
THOSE AREAS-- THOSE EMPLOYEES WITHIN THE BARGAINING UNIT THAT HAD NO
DIRECT CONTACT WITH THE
PRODUCTION DEPARTMENT, PER SE-- THE WATERFRONT WORKERS, IF YOU WILL."
FURTHER, MCINTOSH STATED THAT A PROCEDURE WAS SET UP WHEREBY THE
UNION COULD SUBMIT LETTERS TO SUPPORT DEVIATIONS FROM THE CONTRACT'S
SHIFT ENDING TIME. MCINTOSH INDICATED THAT HE EXPECTED LETTERS FROM THE
UNION RATHER THAN THE SHIPYARD. MCINTOSH ALSO RECALLED THAT THE
PROCEDURE THAT THE PARTIES ESTABLISHED WAS TO BE FOLLOWED AFTER THE
CONTRACT WAS IMPLEMENTED.
ALTHOUGH RESPONDENT'S REPRESENTATIVE MCINTOSH STATES THAT MANAGEMENT
DESIRED TO NEGOTIATE A SINGLE SHIFT INTO THE CONTRACT, THERE IS NO
INDICATION THAT THE UNION WAS AWARE OF SUCH DESIRE, AT LEAST, UNTIL
AFTER DECEMBER 3, 1979, WHEN RODRIQUEZ WAS TOLD BY SEVERAL MANAGEMENT
OFFICIALS OF MACKEY'S LACK OF AUTHORITY AND ITS DESIRE FOR A
STANDARDIZED SHIFT. LIKEWISE, THERE IS NO RECORD SHOWING THAT THE UNION
PARTICIPATED IN DISCUSSION CONCERNING THE SHIPYARD COMMANDER'S MAKING
THE FINAL DECISION CONCERNING DEVIATIONS FROM THE SHIFT HOURS, AS
MCINTOSH TESTIFIED.
ANOTHER OF RESPONDENT'S NEGOTIATORS PETER R. MOENTER DENIES THAT ANY
MATTERS WERE LEFT FOR RESOLUTION AFTER THE CONCLUSION OF CONTRACT
NEGOTIATIONS IN 1978. MOENTER ALSO DENIED THAT ANY AGREEMENT WAS
REACHED DURING NEGOTIATIONS TO ALLOW EXCEPTIONS TO THE 0730-1600 SHIFT,
ALTHOUGH THE RECORD CLEARLY ESTABLISHES THAT THERE WAS AGREEMENT THAT A
PROCEDURE WAS TO BE SET UP FOR DEVIATIONS FOR NON-PRODUCTION EMPLOYEES.
FINALLY, MOENTER TESTIFIED THAT THE PARTIES KNEW THAT TAKING THE 1600
SHIFT OUT OF THE CONTRACT "WOULD BE BREAKING SOME RICE BOWLS."
ACCORDING TO THE UNION, THE PARTIES DID NOT DISCUSS DEVIATIONS FROM
SHIFT HOURS AFTER THE AUGUST 1978 NEGOTIATION SESSIONS. THE ENTIRE
COLLECTIVE BARGAINING AGREEMENT WAS NOT SIGNED UNTIL AUGUST 27, 1979 AND
WAS ORIGINALLY SCHEDULED TO BE IMPLEMENTED ON OCTOBER 26, 1979.
B. EVENTS OF OCTOBER AND NOVEMBER 1979
BEGINNING IN OCTOBER 1979, THE UNION INITIATED COMMUNICATIONS WITH
THE SHIPYARD IN ORDER IT STATES, TO COMPLETE, BEFORE IMPLEMENTATION
CERTAIN LOOSE ENDS LEFT OPEN AT THE CONCLUSION OF NEGOTIATIONS AND
INCLUDED AMONG THOSE WAS THE SHIFT DEPARTURE QUESTION. AROUND OCTOBER
22, 1979, THE UNION WROTE TO FRANK MACKEY, HEAD OF EMPLOYEE-MANAGEMENT
RELATIONS, REQUESTING THAT EMPLOYEES IN THE PUBLIC WORKS AND SUPPLY
DEPARTMENTS BE ABLE TO RETAIN THE 0730-1600 SHIFT. ACCORDING TO THE
UNION, THE LETTER WAS WRITTEN BECAUSE IT HAD NOT RECEIVED INFORMATION
FROM MANAGEMENT CONCERNING THE PREPARATION OF THE LISTS IDENTIFYING
THOSE EMPLOYEES WHO WOULD BE ALLOWED TO KEEP THE 1600 SHIFT HOURS AND,
BECAUSE AT THAT TIME, THE CONTRACT WAS TO BE IMPLEMENTED ON OCTOBER 26,
1979. THERE WAS NO RESPONSE TO THIS REQUEST. A SECOND LETTER WAS ALSO
SENT TO MACKEY FROM RODRIQUEZ, REQUESTING THAT SIMILAR ACTION BE TAKEN
FOR EMPLOYEES IN THE PLANNING AND ESTIMATING, SHIP SCHEDULES, AND
QUALITY CONTROL DEPARTMENT, ALL OF WHOSE FUNCTIONS APPARENTLY WERE
NON-PRODUCTION AND SUBJECT TO THE SHIFT DEPARTURE AGREEMENT.
IN ATTEMPTING TO FINALIZE ALL LOOSE ENDS FROM THE 1978 NEGOTIATIONS,
INCLUDING THE SHIFT DEPARTURES, SEVERAL MEETINGS WERE SET UP BETWEEN THE
PARTIES IN NOVEMBER 1979. BROAD DIFFERENCES EXIST AS TO THE DATES AND
AS TO WHAT OCCURRED AT THESE MEETINGS, HOWEVER, I CREDIT THE FOLLOWING
VERSION. AT ONE OF THE MEETINGS HELD DURING THE LATTER PART OF NOVEMBER
1979, ON EITHER NOVEMBER 27 OR 29, MACKEY MET WITH COPE AND SEVERAL
OTHER UNION STEWARDS. DURING THE COURSE OF THAT MEETING, THE PARTIES
DISCUSSED THE 1600 SHIFT AND THE MATERIALS THAT THE STEWARDS HAD TO
PROVIDE TO MACKEY IN ORDER TO RETAIN EMPLOYEES ON THE 1600 SHIFT. AT
THIS MEETING, MACKEY ALSO INSTRUCTED THE UNION STEWARDS TO SUBMIT
INFORMATION TO HIM IN ORDER TO RETAIN THE 1600 SHIFT; RECOMMENDED TO
STEWARDS THAT THEY WORK WITH AND OBTAIN LETTERS FROM SUPERVISION
REQUESTING THE 1600 SHIFT; AND, STATED THAT THE LETTERS SHOULD SET
FORTH REASONS IN SUPPORT OF THE REQUEST. DURING THE MEETING, MACKEY
INFORMED THE STEWARDS THAT INTERFERENCE IN PRODUCTIVITY WOULD BE A
FACTOR HE WOULD EXAMINE IN CONNECTION WITH CHANGING WORKING HOURS. THE
STEWARDS ALSO GAVE MACKEY SOME WRITTEN INFORMATION, BUT MACKEY TOLD THEM
TO GET BACK TO HIM WITH THE ADDITIONAL INFORMATION THE FOLLOWING DAY OR
THE DAY AFTER THAT. FORMER STEWARD D. C. MAKEANA TESTIFIED THAT AT SOME
POINT IN THIS MEETING, WHICH HE RECALLS OCURRED AROUND, NOVEMBER 27 OR
29, 1979, THAT MACKEY TOLD THE STEWARDS TO GET THE INFORMATION TO HIM BY
THE NEXT DAY, AND THAT MACKEY STATED THAT HE WOULD GIVE THEM A RESPONSE
BY NOVEMBER 30, 1979. /2/ MAKEANA ALSO TESTIFIED, THAT HE ASSUMED FROM
THE MEETING THAT THE INFORMATION THE STEWARDS GATHERED WOULD BE
FORWARDED TO THE SHIPYARD COMMANDER. FOR WHAT PURPOSE THE SHIPYARD
COMMANDER WOULD USE THE INFORMATION, HE DID NOT STATE. ALTHOUGH MACKEY
TESTIFIED THAT HE TOLD THE GROUP THAT HE WOULD TAKE THE INFORMATION TO
THE SHIPYARD COMMANDER, BOTH COPE AND RODRIQUEZ, WHO WERE NOT AT THIS
MEETING, BUT LEARNED WHAT HAD OCCURED FROM THE STEWARDS SHORTLY
THEREAFTER, DENIED THAT STEWARDS WERE TOLD THAT THE INFORMATION HAD TO
BE SUBMITTED TO THE COMMANDER AT THIS MEETING.
A NOVEMBER 9, 1979 MEMORANDUM WAS ISSUED TO VARIOUS MANAGEMENT
OFFICIALS FROM THE SHIPYARD COMMANDER SETTING FORTH THE COMMAND'S
POSITION ON THE TERMS OF THE NEW CONTRACT, SETTING THE NEW HOURS OF WORK
FOR DAY SHIFT EMPLOYEES AS 0730 TO 1610 WITH NO DEVIATIONS. THE UNION
NEVER RECEIVED A COPY OF THAT MEMORANDUM NOR IS THERE ANY EVIDENCE TO
SHOW THAT IT WAS AWARE OF THE CAPTAIN'S POSITION. NOR IS THERE ANY
RECORD EVIDENCE SHOWING THAT MACKEY, DURING ANY DISCUSSION, POINTED OUT
THE COMMAND POSITION SET OUT IN THAT MEMORANDUM.
C. MEETING OF NOVEMBER 30, 1979
SOMETIME DURING THE AFTERNOON OF NOVEMBER 30, 1979, MACKEY, COPE,
RODRIQUEZ AND POSSIBLY, ALEX VOURNAZOS, A SENIOR LABOR RELATIONS
SPECIALIST MET IN MACKEY'S OFFICE. EACH SIDE HAS A DIFFERENT VERSION OF
WHO WAS PRESENT AND WHAT OCCURRED. UNION REPRESENTATIVES COPE AND
RODRIQUEZ CLAIM THAT THEY WERE CALLED TO MACKEY'S OFFICE WHILE MACKEY
AND ALEX VOURNAZOS TESTIFIED THAT THE MEETING WAS SPONTANEOUS AND, THAT
MACKEY OVERHEARD RODRIQUEZ IN THE HALL AND CALLED HIM INTO HIS OFFICE.
FROM THAT POINT THE PARTIES RECOLLECTION GROWS EVEN WIDER APART.
THE UNION CLAIMS THAT THE MEETING BEGAN WITH MACKEY MAKING A
STATEMENT CONCERNING THE GOOD JOB THAT STEWARD GEORGE RADER HAD DONE IN
GATHERING NEEDED INFORMATION FROM THE PUBLIC WORKS DEPARTMENT. THEN
MACKEY HANDED RODRIQUEZ TWO LETTERS CONCERNING THE SUPPLY AND PUBLIC
WORKS DEPARTMENTS AND TOLD HIM TO SIGN THEM. MACKEY ALSO STATED,
ACCORDING TO RODRIQUEZ, THAT THE LETTERS SHOULD BE SIGNED THAT DAY SO
THAT MACKEY COULD "CALL THE DEPARTMENTS." RODRIQUEZ SIGNED THE LETTERS,
IN THE CUSTOMARY MANNER, SEE INFRA, BY PLACING HIS INITIALS AND THE DATE
ACROSS THE TOP OF THE PAGES. ONE OF THE DOCUMENTS INITIALED BY
RODRIQUEZ WAS A LETTER DATED NOVEMBER 30, 1979 FROM CAPTAIN FEKULA OF
THE SUPPLY DEPARTMENT AND THE OTHER WAS A SIMILAR LETTER CONCERNING
SHIFT DEVIATIONS FOR EMPLOYEES OF THE PUBLIC WORKS DEPARTMENT.
ACCORDING TO RODRIGUEZ, THE ACT OF PLACING HIS INITIALS ON THESE
DOCUMENTS INDICATED TO HIM THAT HE HAD READ THE DOCUMENTS AND THAT THE
PARTIES HAD AGREED TO THEM.
MACKEY'S ACCOUNT OF THIS MEETING IS SUBSTANTIALLY DIFFERENT. FIRST
MACKEY STATES THAT VOURNAZOS A SENIOR LABOR RELATIONS SPECIALIST, AND
NOT COPE, WAS PRESENT. WHILE ADMITTING THAT HE GAVE THE NOVEMBER 30
LETTERS TO RODRIQUEZ, MACKEY STATES THAT HE MADE REFERENCE TO TAKING THE
"REQUEST TO THE SHIPYARD COMMANDER." COPE AND RODRIQUEZ BOTH DENY THAT
ANY REFERENCE WAS MADE TO TAKING INFORMATION TO THE SHIPYARD COMMANDER.
VOURNAZOS CONFIRMS MACKEY IN SOME RESPECTS BUT, IT IS OBVIOUS FROM HIS
TESTIMONY, AND HIS RECENT EMPLOYMENT WHICH BEGAN ONLY ON NOVEMBER 5,
1979 AT THE SHIPYARD, THAT HE DID NOT ABSORB THIS ENTIRE MEETING.
THEREFORE, EVEN ASSUMING THAT VOURNAZOS WAS PRESENT, LESS WEIGHT IS
GIVEN TO HIS TESTIMONY THAN THAT OF THE OTHERS.
THEN ACCORDING TO RODRIQUEZ AND COPE, AFTER RODRIQUEZ HAD INITIALED
THE DOCUMENTS AND WAS LEAVING THE ROOM TO MAKE COPIES OF THE LETTER FROM
SUPPLY TO GIVE A UNION STEWARD, MACKEY PLACED A TELEPHONE CALL TO THE
SUPPLY DEPARTMENT. ACCORDING TO THE UNION'S VERSION, TOLD BY COPE,
MACKEY ASKED TO SPEAK TO THE CAPTAIN. WHEN THE CAPTAIN WAS APPARENTLY
NOT PRESENT MACKEY INSTRUCTED THE PERSON WHO ANSWERED THE TELEPHONE TO "
. . . RELATE AN IMPORTANT MESSAGE TO THE CAPTAIN . . . THAT THE
EMPLOYEES WERE TO END THEIR WORK DAY AT 1600 HOURS INSTEAD OF 1610" THE
FOLLOWING MONDAY, AND THAT DUE TO THE LATE HOUR, HE WOULD PROVIDE
WRITTEN NOTICE ON MONDAY. AFTER CONCLUDING THE TELEPHONE CALL, MACKEY
TOLD COPE THAT "THE OTHER (DEPARTMENTS) WOULD FOLLOW." BY THIS TIME
RODRIQUEZ HAD RETURNED TO MACKEY'S OFFICE WITH THE COPIES OF THE LETTER
TO SUPPLY AND COPE WAS LEAVING. MACKEY ACCORDING TO RODRIQUEZ, THEN
TOLD RODRIQUEZ THAT HE HAD REACHED THE SUPPLY DEPARTMENT AND THAT
ALTHOUGH THE CAPTAIN WAS OUT HE HAD TOLD THE SECRETARY THAT THERE WOULD
BE NO DISRUPTION IN THE SUPPLY DEPARTMENT. MACKEY ALSO TOLD RODRIQUEZ
THAT HE WAS ATTEMPTING TO CONTACT THE PUBLIC WORKS DEPARTMENT.
VIVIAN CUSOLITO, THE SECRETARY TO THE HEAD OF THE SUPPLY DEPARTMENT
HAD TYPED THE NOVEMBER 30, 1979 LETTER WHICH MACKEY PRESENTED TO
RODRIQUEZ FROM THE SUPPLY DEPARTMENT, ON THAT DAY. CUSOLITO RECALLED
HAVING RECEIVED A TELEPHONE CALL FROM A MALE CALLER ON THAT SAME DAY.
ACCORDING TO CUSOLITO, THE CALLER ASKED FOR THE CAPTAIN. THE CALLER
TOLD HER THAT THE NOVEMBER 30 MEMORANDUM HAD BEEN APPROVED, AND TO GIVE
THAT MESSAGE TO THE CAPTAIN. LATER THAT DAY CUSOLITO RECEIVED A SECOND
CALL WHICH TOLD HER THAT THE MEMORANDUM HAD NOT BEEN APPROVED, AND THAT
SHE SHOULD NOT GIVE THE CAPTAIN THE FIRST MESSAGE.
BOTH MACKEY AND VOURNAZOS TESTIFIED THAT MACKEY MADE A TELEPHONE CALL
DURING A MID-NOVEMBER MEETING TELLING SUPPLY TO HOLD OFF ON IMPLEMENTING
THE SHIFT HOURS UNTIL A WEEK AFTER THE CONTRACT BECAME EFFECTIVE. THEY
BOTH DENY, HOWEVER, THAT MACKEY MADE ANY CALLS TO THE SUPPLY DEPARTMENT
CONCERNING THE SHIFT DEVIATIONS DURING THE NOVEMBER 30 MEETING.
D. REFUSAL TO HONOR AGREEMENT
THE FOLLOWING MONDAY, DECEMBER 3, 1979, RODRIQUEZ WAS CALLED BY
MACKEY AND INVITED TO MACKEY'S OFFICE. THERE MACKEY TOLD RODRIQUEZ THAT
THE COMMANDER HAD CALLED HIM LATE FRIDAY AND TOLD HIM THAT THE AGREEMENT
WAS NOT GOING TO BE IMPLEMENTED. THEREFORE, THE EMPLOYEES IN THE PUBLIC
WORKS AND SUPPLY DEPARTMENTS, AS WELL AS OTHER UNIT EMPLOYEES COVERED BY
THE NEW CONTRACT, WOULD BE REQUIRED TO WORK UNTIL 1610 HOUR.
SUBSEQUENTLY, RODRIQUEZ MET WITH GIL BOND, DIRECTOR OF INDUSTRIAL
RELATIONS, WHO IS MACKEY'S SUPERVISOR, AND INQUIRED AS TO WHY MACKEY HAD
NOT IMPLEMENTED THE AGREEMENT TO ALLOW DEVIATIONS FROM THE 1600 SHIFT.
BOND'S REPLY WAS THAT MACKEY DID NOT HAVE THE AUTHORITY TO PERMIT THE
DEVIATION IN QUESTION. AFTER SOME DISCUSSION, BOND SET UP A MEETING
WITH MCINTOSH, COPE AND RODRIQUEZ DURING WHICH MCINTOSH INFORMED
RODRIQUEZ AND COPE THAT AT THE TIME OF THE NEGOTIATIONS, MCINTOSH HAD
SOUGHT A "STANDARDIZED WORK SHIFT." RODRIQUEZ DENIES EVER HAVING HEARD
DURING NEGOTIATIONS ANY MANAGEMENT REPRESENTATIVE STATE THAT RESPONDENT
DESIRED A STANDARDIZED WORK SHIFT. DURING THE COURSE OF THE MEETING
MCINTOSH STATED THAT THE ONLY EXCEPTIONS WHICH WHICH WOULD BE CONSIDERED
TO THE 1610 HOURS OF THE CONTRACT WERE THOSE THAT "DID NOT IMPACT ON
PRODUCTIVITY" AND THOSE EXCEPTIONS "MAY BE CONSIDERED APPROVED."
MCINTOSH ALSO TESTIFIED THAT AT THE TIME OF THE MEETING, WHICH WAS
SUBSEQUENT TO THE TIME OF IMPLEMENTATION, THAT THE COMMAND DECISION WAS
TO MAKE NO DEPARTURES FROM THE CONTRACT. THIS, OF COURSE, IS CONFIRMED
BY THE NOVEMBER 9, 1979 MEMORANDUM FROM THE SHIPYARD COMMANDER SETTING
FORTH THAT NO DEVIATION WOULD BE PERMITTED. BOND TESTIFIED THAT HE HAD
TOLD RODRIQUEZ PRIOR TO NOVEMBER 30, 1979 THAT THE COMMANDING OFFICER
HELD THE AUTHORITY TO MAKE EXCEPTIONS TO THE SHIFT HOURS AS SET OUT IN
THE CONTRACT. BOND FURTHER TESTIFIED THAT NEITHER HE NOR MACKEY HAD
AUTHORITY TO MAKE CHANGES IN POLICY.
E. LABOR RELATIONS AUTHORITY OF MACKEY
FRANK MACKEY, IS HEAD OF EMPLOYEE-LABOR MANAGEMENT RELATIONS. IN
THIS CAPACITY, HIS RESPONSIBILITY IS TO IMPLEMENT AND ADMINISTER
CONTRACTS WITH REGARD TO LABOR ORGANIZATIONS, AND ALL CONTRACTS OF
MANAGEMENT WITH LABOR AT THE SHIPYARD. IN THIS CAPACITY, MACKEY HAS
EXPRESS AUTHORITY TO ENTER INTO WRITTEN AGREEMENTS WITH THE UNION.
MACKEY TESTIFIED THAT EXCEPT WHERE HE HAD EXPRESSED ORDERS THAT THE
SHIPYARD COMMANDER DESIRES TO MAKE A PARTICULAR DECISION, "I HAVE
AUTHORITY TO SIGN MEMORANDUMS OF AGREEMENT."
THE RECORD DISCLOSED THAT THE PARTIES HAD AN ESTABLISHED PROCEDURE
FOR ENTERING INTO SIDE AGREEMENTS. RODRIQUEZ TESTIFIED THAT THE UNION
HAD ENTERED INTO AGREEMENTS WITH MACKEY ON BEHALF OF RESPONDENT ON AN
ALMOST DAILY BASIS SINCE JUNE 1978. THESE HUNDREDS OF AGREEMENTS
INCLUDED GRIEVANCES, THE ROTATION OF OVERTIME, SHIFT CHANGES AND OTHER
SUBJECTS WHICH CONSTITUTED SUBSTANTIAL DEPARTURES FROM THE EXISTING
CONTRACT. THE PROCEDURE WAS THAT A PARTICULAR DEPARTMENT OR OFFICIAL OF
THE SHIPYARD WOULD SEND A WRITTEN REQUEST TO MACKEY WHICH WOULD BE
SHOWN
BY MACKEY, OR SOMEONE ON HIS STAFF, TO THE UNION. THE UNION WOULD THEN
INITIAL OR DATE THE MEMORANDUM. MACKEY TESTIFIED THAT THE INITIALLING
OF SUCH MEMORANDUM OR LETTER BY A UNION OFFICIAL WOULD INDICATE THE
AGREEMENT OR CONCURRENCE OF THE UNION. THEREAFTER, A FORMAL WRITTEN
AGREEMENT WOULD BE PREPARED BY THE SHIPYARD AND SIGNED BY MACKEY AND
RODRIQUEZ. ON OCCASION, THE SUBJECT MATTER WOULD BE IMPLEMENTED BEFORE
THE FORMAL WRITTEN AGREEMENT WAS SIGNED. THE FORMAL WRITTEN AGREEMENT,
ACCORDING TO RODRIQUEZ, ONLY MEMORALIZED THE PRIOR AGREEMENT WHICH HAD
BEEN ENTERED INTO BY THE INITIALED LETTER. RODRIQUEZ ALSO TESTIFIED,
THAT THERE HAS NEVER BEEN A DEVIATION BETWEEN WHAT WAS AGREED TO ON THE
INITIALLED LETTER AND WHAT APPEARED ON THE FINAL AGREEMENT. ALSO,
RODRIQUEZ TESTIFIED, THAT MACKEY HAD NEVER TOLD HIM THAT MACKEY HAD TO
OBTAIN APPROVAL FROM THE SHIPYARD COMMANDER OR FROM ANY OTHER SHIPYARD
OFFICIAL BEFORE IMPLEMENTING ANY OF THE HUNDREDS OF PREVIOUS AGREEMENTS
WHICH THE PARTIES HAD REACHED OVER A TWO YEAR PERIOD.
WHILE THERE ARE UNDOUBTABLY SOME LIMITATIONS ON MACKEY'S AUTHORITY,
BOND WHO IS MACKEY'S IMMEDIATE SUPERVISOR, TESTIFIED THAT HE WAS NOT
AWARE OF WHAT AGREEMENTS MACKEY ENTERED INTO ON A DAY BY DAY BASIS.
FINALLY, RODRIQUEZ TESTIFIED THAT THERE HAS NEVER BEEN AN OCCASION WHEN
MACKEY REFUSED TO ENTER INTO A FORMAL WRITTEN AGREEMENT AFTER RODRIQUEZ
HAD INITIALED THE LETTER DETAILING THE PROPOSED CHANGE.
CONCLUSIONS
RESPONDENT MAINTAINS THAT FRANK MACKEY DID NOT HAVE THE AUTHORITY TO
ENTER INTO THE SHIFT WORK HOUR DEVIATION AGREEMENT AND THAT THE UNION
WAS AWARE OF THIS LACK OF AUTHORITY PRIOR TO NOVEMBER 30, 1979. THE
RECORD REVEALS THAT MACKEY HAD BROAD EXPRESS AUTHORITY TO ENTER
AGREEMENTS WHICH DEVIATED FROM THE CONTRACT AND THAT HE HAD DONE SO ON
HUNDREDS OF OCCASIONS, IN THE SAME FASHION EMPLOYED ON THE NOVEMBER 30
MEMORANDA. I CREDIT RODRIQUEZ AND COPE, THAT MACKEY HAD NEVER MENTIONED
ANY LIMITATIONS ON HIS AUTHORITY OR THAT HE HAD TO TAKE THE INFORMATION
CONCERNING SHIFT DEPARTURES TO THE SHIPYARD COMMANDER. IF SO, THIS
IMPRESSION WAS CONVEYED, ONLY TO MAKEANA. OTHERWISE, THERE IS NO
INDICATION IN THE RECORD THAT THE UNION WAS AWARE THAT FINAL APPROVAL
FOR THE DEPARTURES FROM THE COMMANDER WAS NEEDED. IN THIS REGARD, I
NOTE THAT NEITHER BOND NOR MACKEY PLACED ANY SPECIFIC LIMITATIONS ON
MACKEY'S AUTHORITY TO ACT FOR THE SHIPYARD IN LABOR-RELATIONS MATTERS
PRIOR TO NOVEMBER 30 AND THAT MACKEY'S ACTIONS WERE COMPLETELY
CONSISTENT TO HIS ACTIONS PRIOR TO THAT TIME.
WHILE THE SHIPYARD COMMANDER'S NOVEMBER 9, 1979 MEMORANDUM SET FORTH
THE COMMAND POSITION THAT THERE WOULD BE NO "DEVIATIONS" FROM THE 0730
TO 1610 HOURS, THE UNION WAS NEVER MADE AWARE OF THIS POSITION. THE
EVIDENCE IS OVER-WHELMING THAT MACKEY HAD EXPRESS AUTHORITY, AS HEAD OF
EMPLOYEE RELATIONS, TO CONDUCT DAY-TO-DAY LABOR RELATIONS WITH THE
UNION; HAD ON HUNDREDS OF OCCASIONS EXERCISED AUTHORITY BY ENTERING
INTO SIMILAR MEMORANDA WITH THE UNION CONCERNING DEVIATIONS FROM THE
COLLECTIVE BARGAINING AGREEMENT; AND, THE UNION WAS NOT APPRAISED OF
AND HAD NO WAY OF KNOWING THAT THERE WERE LIMITATIONS ON THAT AUTHORITY.
SINCE NO LIMITATIONS WERE EXPRESSED AND MACKEY'S ACTION THROUGHOUT WERE
CONSISTENT WITH HIS HAVING AUTHORITY TO APPROVE SHIFT HOUR DEVIATIONS,
IT IS FOUND THAT, MACKEY'S ACTIONS WERE THOSE OF THE SHIPYARD.
BASED ON THE FOREGOING, I FIND THAT THE NOVEMBER 30, 1979 MEMORANDA
CONCERNING DEVIATION FROM THE CONTRACTUAL SHIFT WORK HOURS IN THE SUPPLY
AND PUBLIC WORKS DEPARTMENTS, WHICH WERE ENTERED WITH IN THE SAME MANNER
AS HUNDREDS OF OTHER AGREEMENTS ALLOWING DEPARTURES FROM THE COLLECTIVE
BARGAINING AGREEMENT, WERE BINDING ON THE SHIPYARD.
THE GENERAL COUNSEL ARGUES THAT THE PARTIES AGREED TO DEVIATIONS FROM
THE 1600 SHIFT DURING THE 1978 CONTRACT NEGOTIATIONS. /3/ RESPONDENT
OFFERED EVIDENCE THAT IT SOUGHT A "STANDARDIZED WORK SHIFT" DURING THE
NEGOTIATIONS. FURTHERMORE RESPONDENT MAINTAINS THAT THE DEVIATIONS, IF
ANY WERE TO ALLOWED, SHOULD HAVE BEEN SUBMITTED AFTER THE CONTRACT WAS
IMPLEMENTED. THE RECORD DOES NOT SUPPORT SUCH AN ARGUMENT. ALTHOUGH
RESPONDENT'S PROPOSAL ON SHIFT HOURS OFFERED ONLY A SINGLE DAY SHIFT
PROPOSAL, MCINTOSH'S TESTIMONY CONVINCES ME THAT THE PARTIES WITHOUT
QUESTION AGREED TO A PROCEDURE TO DETERMINE WHICH EMPLOYEES WERE
NON-PRODUCTION EMPLOYEES AND THAT ONCE DETERMINED THOSE EMPLOYEES WERE
ENTITLED TO EXCEPTIONS FROM THE REGULAR SHIFT. THE PARTIES' CONDUCT
PRIOR TO CONTRACT IMPLEMENTATION IS ALSO COMPLETELY UNCHARACTERISTIC OF
THE FACT THAT AN AGREEMENT DID NOT EXIST. BOTH SIDES WERE ATTEMPTING TO
IDENTIFY EMPLOYEES SUBJECT TO THE DEVIATION BEFORE IMPLEMENTATION AND
EXTENSIONS OF TIME TO OBTAIN LISTS OR INFORMATION HAD BEEN GRANTED BY
MACKEY, IN ORDER TO ALLOW THE UNION TIME TO GAIN SUPPORT FROM DEPARTMENT
HEADS CONCERNING DEVIATIONS FOR THEIR RESPECTIVE EMPLOYEES BEFORE THE
CONTRACT WAS IMPLEMENTED. IT IS ALSO NOTED THAT MCINTOSH, ONE OF THE
RESPONDENT'S NEGOTIATORS, AGREED THAT A PROCEDURE HAD BEEN ESTABLISHED
FOR SEEKING DEVIATIONS. IT IS MY VIEW, THAT THE ACTIONS OF THE PARTIES
WERE CONSISTENT WITH THE AGREEMENT REACHED DURING NEGOTIATIONS TO SEEK
DEVIATIONS FOR SHIFT HOURS PRIOR TO IMPLEMENTATION. FURTHERMORE,
MACKEY'S ACTIONS IN MEETING WITH STEWARDS CONFIRMS THAT THE PARTIES HAD
AGREED TO A PROCEDURE WHEREBY SHIFT DEPARTURES WOULD BE GRANTED,
OTHERWISE THERE WOULD HAVE BEEN NO NEED FOR MEETINGS AND/OR INSTRUCTIONS
ON HOW TO OBTAIN DEVIATIONS. THUS, THE UNION WAS SEEKING LISTS, LETTERS
OR INFORMATION FROM DEPARTMENT HEADS IN ORDER TO OBTAIN DEVIATIONS IN A
MANNER COMPATIBLE WITH THAT AGREEMENT. I ALSO NOTE, THAT RESPONDENT DID
NOT DISCOURAGE THIS ACTION AND THE INFORMATION WAS TO BE SUBMITTED TO
MACKEY BEFORE THE CONTRACT WAS IMPLEMENTED. INDEED MACKEY MADE A PHONE
CALL SOMETIME DURING MID-NOVEMBER TO GAIN AN EXTENSION OF TIME SO THAT
THE INFORMATION COULD BE SUBMITTED. IN THE CIRCUMSTANCES, THE ACTIONS
OF BOTH SIDES CONVINCE ME THAT AGREEMENT WAS REACHED IN 1978 TO ALLOW
DEVIATIONS FROM SHIFT HOURS BEFORE AND NOT AFTER CONTRACT
IMPLEMENTATION. ALTHOUGH IT APPEARS FROM THE RECORD THAT THE NEW
SHIPYARD COMMANDER, CAPTAIN GILDEA DID NOT AGREE WITH THE PREVIOUSLY
NEGOTIATED PROCEDURE OR ARRANGEMENT TO ALLOW DEVIATIONS, THIS POSITION
WAS NOT EXPRESSED TO THE UNION UNTIL DECEMBER 3, 1979. ONLY THEN WAS
UNION PRESIDENT RODRIQUEZ TOLD FOR THE FIRST TIME, THAT THERE "WILL BE
NO DEVIATIONS."
BASED ON THE ABOVE, I FIND, THAT AGREEMENT HAD BEEN REACHED IN 1978
TO ESTABLISH PROCEDURES TO OBTAIN DEVIATIONS FOR NON-PRODUCTION
EMPLOYEES AND THAT THE UNION SOUGHT TO COMPLY WITH THAT AGREEMENT BY
OBTAINING LISTS OR INFORMATION FROM DEPARTMENT HEADS IN ORDER TO
DETERMINE WHICH NON-PRODUCTION EMPLOYEES WERE ENTITLED TO OBTAIN
EXCEPTIONS TO THE STANDARD WORK SHIFT. FURTHER, IT IS FOUND THAT, ONCE
IT WAS DETERMINED WHICH EMPLOYEES WERE ENTITLED TO EXCEPTIONS THAT THOSE
DEVIATIONS WOULD BE GRANTED.
SUBSEQUENTLY, THE PARTIES IN OCTOBER AND NOVEMBER 1979 BEGAN TO
COMPLY WITH THE 1978 AGREEMENT TO IDENTIFY AND SEEK DEVIATIONS.
MEETINGS WERE HELD ON SEVERAL OCCASIONS AND THE UNION APPARENTLY WAS
WORKING FEVERISHLY TO SATISFY MACKEY'S REQUESTS TO OBTAIN INFORMATION OR
LETTERS SUPPORTING THE DEVIATIONS. IT IS INCONCEIVABLE, AS RODRIQUEZ'
TESTIMONY INDICATES, THAT THE UNION WOULD HAVE GONE TO THIS AMOUNT OF
TROUBLE TO OBTAIN DEVIATIONS FROM MACKEY WHEN UNION PRESIDENT RODRIQUEZ
HAD DIRECT ACCESS ON THE MATTER TO THE SHIPYARD COMMANDER. /4/ IF THE
UNION HAD NOT PERCEIVED THAT MACKEY DID NOT HAVE AUTHORITY TO APPROVE
THE AGREEMENT, AND THE DEALINGS BETWEEN THE PARTIES IN THE PAST
DISCLOSED NO REASON FOR THE UNION TO THINK OTHERWISE, THERE WERE OTHER
MORE EXPEDITIOUS MEANS AVAILABLE. IN ALL OF THE CIRCUMSTANCES OF THE
CASE, INCLUDING THE 1978 AGREEMENT TO ESTABLISH A PROCEDURE TO ALLOW
DEVIATIONS; MACKEY'S EXPRESS AUTHORITY PRIOR TO NOVEMBER 30, 1979 TO
APPROVE WHATEVER AGREEMENT WAS REACHED; THE UNION'S PERCEPTION THAT
MACKEY WAS THE FINAL AUTHORITY IN THE MATTER; THE APPROVAL OF THE
MEMORANDA IN THE EXACT SAME FASHION AS HAD BEEN DONE ON HUNDREDS OF
OTHER OCCASIONS; MACKEY'S CALL TO SUPPLY INDICATING THAT THE AGREEMENT
HAD BEEN APPROVED; /5/ THE MEETINGS AND INSTRUCTIONS TO THE UNION;
AND, THE FACT THAT THE UNION WAS NEVER TOLD OF ANY LIMITATIONS ON
MACKEY'S AUTHORITY, I FIND THAT THE PARTIES DID INDEED ENTER INTO VALID
AGREEMENTS ON NOVEMBER 30, 1979 CONCERNING SHIFT DEVIATIONS FOR THE
SHIPYARD AND PUBLIC WORKS DEPARTMENT EMPLOYEES ALLOWING THEM TO
CONCLUDE
THEIR DAY AT 1600 HOURS INSTEAD OF 1610. FURTHERMORE, IT IS FOUND THAT
RESPONDENT'S REFUSAL, ON DECEMBER 3, 1979, TO PERMIT THOSE EMPLOYEES TO
END THEIR SHIFT AT 1600 AND LEAVE THE SHIPYARD AT 1600 HOURS CONSTITUTED
A REPUDIATION OF THAT AGREEMENT, IN VIOLATION OF SECTION 7116(A)(1) AND
(5) OF THE STATUTE. /6/
HAVING FOUND THAT LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA
HAS VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND
THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER: /7/
ORDER
PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
ORDERED THAT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA.
1. CEASE AND DESIST FROM:
(A) REFUSING TO ALLOW EMPLOYEES OF ITS SUPPLY AND PUBLIC WORKS
DEPARTMENTS AND DEPART WORK
AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH THE FEDERAL EMPLOYEES
METAL TRADES COUNCIL,
AFL-CIO, TO ALLOW SUCH EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT
HOURS CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON THE
0730-1600 SHIFT IN
CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER 30, 1979 WITH
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, TO DEVIATE SHIFT HOURS FOR EMPLOYEES IN THOSE
DEPARTMENTS.
(B) POST AT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA,
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 AT SAID
ACTIVITY 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.
(C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
45 FED.REG.AT 3511,
NOTIFY THE REGIONAL DIRECTOR OF REGION VIII, WORLD TRADE BUILDING,
10TH FLOOR, 350 FIGUEROA
ST., LOS ANGELES, CALIFORNIA 90071, IN WRITING, WITHIN 30 DAYS FROM
THE DATE OF THIS ORDER, AS
TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 25, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT REFUSE TO ALLOW EMPLOYEES OF THE SUPPLY AND PUBLIC WORKS
DEPARTMENTS TO DEPART WORK AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH
THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO ALLOW SUCH
EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT HOURS CONTAINED IN THE
COLLECTIVE BARGAINING AGREEMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON
THE 0730-1600 SHIFT IN CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER
30, 1979 WITH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO
DEVIATE SHIFT HOURS FOR EMPLOYEES IN THOSE DEPARTMENTS.
. . . 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 EMPLOYEE HAS ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
WITH IT'S PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VIII, WHOSE ADDRESS
IS: WORLD TRADE CENTER, 10TH FLOOR, 350 S FIGUEROA ST., LOS ANGELES,
CALIFORNIA 90071.
--------------- FOOTNOTES: ---------------
/1/ CASE NO. 8-CA-407 WAS ORIGINALLY CONSOLIDATED FOR HEARING WITH
CASE NO. 8-CA-438. SUBSEQUENTLY, ON JULY 25, 1980 THE REGIONAL
DIRECTOR, REGION VIII ISSUED AN ORDER SEVERING CASES, WITHDRAWING THE
ORDER CONSOLIDATING CASES AND APPROVING WITHDRAWAL OF CHARGE AND
DISMISSING THE CONSOLIDATED AMENDED COMPLAINT AS IT INVOLVED CASE NO.
8-CA-438.
/2/ RODRIQUEZ TESTIFIED TO TWO MEETINGS BETWEEN MACKEY AND THE
STEWARDS. MACKEY, MACKEANA AND VOURNAZOS RECALLED ONLY ONE.
/3/ RESPONDENT DOES NOT CONTEND THAT THIS RIGHT TO ESTABLISH TOURS OF
DUTY UNDER SECTION 7116(B)(2) OF THE STATUTE. IN ANY EVENT, RESPONDENT,
IT IS FOUND ENGAGED IN NEGOTIATIONS CONCERNING THE SHIFT HOURS AND
ELECTED TO BARGAIN OVER THE MATTER.
/4/ MAKAENA'S TESTIMONY THAT HE PERCEIVED THAT THE INFORMATION WOULD
BE TAKEN TO THE OLD MAN IS OF LITTLE VALUE. THIS COULD MEAN THAT THE
INFORMATION WAS BEING TAKEN TO THE CAPTAIN FOR APPROVAL OR FOR HIS
INFORMATION. I AM NOT CONVINCED THAT ITS PURPOSE WAS FOR APPROVAL ONLY.
/5/ I CREDIT CUSOLITO THAT SHE RECEIVED TWO CALLS ON NOVEMBER 30. I
ALSO CREDIT COPE THAT MACKEY MADE A CALL TO SUPPLY, DURING HIS PRESENCE.
SUCH A CALL IS CONSISTENT WITH MACKEY'S ACTIONS IN THE PAST OF CALLING
DEPARTMENTS, WHICH BOTH MACKEY AND VOURNAZOS TESTIFIED HE HAD DONE
DURING A MEETING WITH STEWARDS IN MID-NOVEMBER 1979.
/6/ I ALSO AGREE WITH THE GENERAL COUNSEL THAT THE REPUDIATION OF THE
NOVEMBER 30, 1979 AGREEMENT CONSTITUTED AN INDEPENDENT VIOLATION OF
SECTION 7116(A)(1) OF THE STATUTE.
/7/ THE GENERAL COUNSEL'S UNOPPOSED MOTION TO CORRECT THE TRANSCRIPT
IS GRANTED.