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08:0486(100)CA
The decision of the Authority follows:
8 FLRA No. 100
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
HOUSTON AIR TRAFFIC CONTROL CENTER
Respondent
and
EDWARD F. DUPATY
Charging Party
Case No. 6-CA-429
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED. THEREAFTER, THE GENERAL COUNSEL FILED
EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER.
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 DECISION AND ORDER AND THE ENTIRE RECORD IN CONCLUSIONS, AND
RECOMMENDATIONS.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-429 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MAY 7, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
SUSAN E. JELEN, ESQ.
FOR THE GENERAL COUNSEL
ROY G. VICK
FOR THE RESPONDENT
FRANK JUAREZ
FOR THE CHARGING PARTY
BEFORE: JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 30, 1980, BY THE
REGIONAL DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY. THE
COMPLAINT ALLEGED THAT RESPONDENT, THROUGH SUPERVISORY AIR TRAFFIC
CONTROL SPECIALIST DAVID FRAME, VIOLATED SECTION 7116(A)(1) AND (2) BY
ISSUING A LETTER OF REPRIMAND TO THE CHARGING PARTY, BY MAKING
DEROGATORY REMARKS ABOUT HIS PERFORMANCE OF DUTIES IN CONNECTION WITH AN
INCIDENT HE REPORTED AS CONSTITUTING AN UNSATISFACTORY CONDITION, AND BY
MAKING DEROGATORY REMARKS IN HIS ANNUAL PERFORMANCE EVALUATION, ALL
BECAUSE OF HIS MEMBERSHIP IN AND ACTIVITIES ON BEHALF OF, THE
PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION.
A HEARING WAS HELD ON JULY 29, 1980 IN HOUSTON, TEXAS. ALL PARTIES
WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES AND TO INTRODUCE EVIDENCE. UPON THE ENTIRE RECORD, INCLUDING
MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. PRELIMINARILY IT SHOULD BE NOTED THAT WHILE THE COMPLAINT
ATTRIBUTED THE ACTIONS TAKEN AGAINST MR. EDWARD F. DUPATY TO HIS
"MEMBERSHIP IN, AND ACTIVITIES ON BEHALF OF" THE PROFESSIONAL AIR
TRAFFIC CONTROLLERS ORGANIZATION (PATCO), THE ALLEGATIONS WERE MORE
SPECIFICALLY GROUNDED UPON DUPATY'S PERSISTENT INVOCATION OF A CONTRACT
CLAUSE (ARTICLE 55) AND ON HIS FILING OF PERSISTENT INVOCATION OF A
CONTRACT CLAUSE (ARTICLE 55) AND ON HIS FILING OF UNSATISFACTORY
CONDITION REPORTS (UCRS) IN WHICH HE DESCRIBED WHAT HE PERCEIVED TO BE
DANGEROUS CONDITIONS IN THE ROUTING OF AIR TRAFFIC. BOTH SUCH
ACTIVITIES ARE ASSERTED TO CONSTITUTE SPECIES OF PROTECTED UNION
ACTIVITY BECAUSE, IN THE FIRST INSTANCE IT ARISES FORM PROVISIONS OF THE
COLLECTIVE BARGAINING CONTRACT, AND IN THE SECOND INSTANCE, IT HAS TO DO
WITH SAFETY AND IS ACTION WHICH INURES TO THE BENEFIT OF ALL UNIT
EMPLOYEES. THUS WE ARE NOT CONCERNED HERE WITH TRADITIONAL
CONSIDERATIONS OF UNION MEMBERSHIP AND ACTIVITY, THERE BEING NO
CONTENTION THAT DUPATY WOULD HAVE BEEN TREATED DIFFERENTLY HAD HE NOT
BEEN A MEMBER. /1/
2. DUPATY IS A GS-14 AIR TRAFFIC CONTROL SPECIALIST (ATCS), AND HAS
ENGAGED IN SUCH WORK SINCE 1968. PRIOR TO THAT HE SERVED AS A
CONTROLLER FOR THE U.S. AIR FORCE FOR TWO YEARS. THE HOUSTON AIR
TRAFFIC CONTROL CENTER IS DIVIDED INTO SPECIALTIES COVERING NEW ORLEANS,
HOUSTON, LAREDO AND SAN ANTONIO. EACH SPECIALTY IS DIVIDED INTO SECTORS
(SEGMENTS OF AIR SPACE), AND HOUSTON, TO WHICH DUPATY IS ASSIGNED, IS
DIVIDED INTO SIX (SOMETIMES EIGHT) SECTORS. EACH SECTOR, A LEAST
POTENTIALLY, IS MANNED BY THREE PERSONS, A RADAR CONTROLLER, A MANUAL
CONTROLLER AND AN ASSISTANT CONTROLLER. DEPENDING UPON TRAFFIC, WEATHER
AND OTHER FACTORS, SECTORS ARE SOMETIMES MERGED AND, MORE COMMONLY,
POSITIONS ARE COMBINED. THUS A SECTOR EXPERIENCING LIGHT TRAFFIC UNDER
GOOD FLYING CONDITIONS MIGHT BE HANDLED BY ONE CONTROLLER, WITH OR
WITHOUT AN ASSISTANT. A PRINCIPAL FUNCTION OF THE ASSISTANT IS TO TEAR
STRIPS CONTAINING FLIGHT INFORMATION AS THEY COME OFF A PRINTER.
3. DUPATY'S PROBLEMS AT THE HOUSTON CENTER BEGAN IN MARCH OF 1979,
WHICH ROUGHLY COINCIDED WITH THE ARRIVAL OF DAVID FRAME AS SUPERVISOR OF
HIS CREW. THE PERFORMANCE EVALUATION COVERING DUPATY'S WORK FOR ANOTHER
SUPERVISOR FOR THE PERIOD FROM FEBRUARY 1978 TO FEBRUARY 1979 STATES
THAT HE WAS AN EXCELLENT CONTROLLER. WHILE THE OVERALL RATING WAS
MERELY SATISFACTORY, AS OPPOSED TO OUTSTANDING (THERE BEING NO PROVISION
FOR SUPERIOR), THE HIGHEST ASSESSMENT BOXES WERE CHECKED IN 5 AND 11
CATEGORIES OF PERFORMANCE. FROM ABOUT FEBRUARY THROUGH AUGUST OF 1979,
DUPATY WAS ASSIGNED THE JOB OF TRAINING TONY SANCHEZ. /2/ HE ASSERTS
THAT HE WAS NOT SIMULTANEOUSLY ABLE TO STAY "CURRENT" IN A NUMBER OF
POSITIONS, I.E., THAT HE DID NOT WORK THEM ENOUGH TO STAY SUFFICIENTLY
FAMILIAR WITH THE JOB REQUIREMENTS, AND THAT THE RESULTING INSECURITY
WHEN FILLING SUCH POSITIONS LED HIM TO INVOKE ARTICLE 55, AND HENCE INTO
CONFLICT WITH SUPERVISOR FRAME.
4. ARTICLE 55 OF THE COLLECTIVE BARGAINING AGREEMENT IS ENTITLED
"CONTROLLERS PERFORMANCE." SECTION 1 PROVIDES:
IN THE EVENT OF A DIFFERENCE OF PROFESSIONAL OPINION BETWEEN THE
EMPLOYEE AND THE
SUPERVISOR, THE EMPLOYEE SHALL COMPLY WITH THE INSTRUCTIONS OF THE
SUPERVISOR AND THE
SUPERVISOR SHALL ASSUME RESPONSIBILITY FOR HIS OWN DECISIONS.
IN ABOUT MARCH, DUPATY BEGAN TO INVOKE ARTICLE 55 WHENEVER ASSIGNED
MULTIPLE POSITIONS OR ANY POSITION HE CONSIDERED UNSAFE FOR ANY REASON.
BECAUSE HE WAS PUT ON A SHIFT WITH RATHER LIGHT TRAFFIC, WHERE POSITIONS
WERE FREQUENTLY COMBINED, INVOCATION BECAME A ROUTINE, ALMOST DAILY
THING, AND WAS CONTINUING UP TO THE DATE OF THE HEARING. /3/ IT WAS
ACCOMPLISHED BY SIMPLY TELLING THE SUPERVISOR AND MAKING A NOTATION IN
THE WORKLOG. DISCUSSIONS ENSUED AT UNKNOWN TIMES, BETWEEN DUPATY AND
FRAME CONCERNING THE MEANING AND PURPOSE OF ARTICLE 55. ACCORDING TO
DUPATY, FRAME TOLD HIM THAT HE DID NOT SEE WHERE HE WAS JUSTIFIED IN
INVOKING ARTICLE 55 IN SUCH CIRCUMSTANCES, THAT FRAME DID NOT AGREE THAT
DUPATY WAS RELIEVED ON RESPONSIBILITY FOR HIS PERFORMANCE IN "PROTESTED"
COMBINED POSITIONS. DUPATY TESTIFIED THAT HE BELIEVED THAT INVOKING
ARTICLE 55 WOULD "RELIEVE THE RESPONSIBILITY OFF MY SHOULDERS AND PUT IT
ON THE SUPERVISOR'S SHOULDERS FOR THE DECISION HE HAD MADE." A LATER
GRIEVANCE, APPARENTLY FILED IN JULY, INDICATES THAT, IN DUPATY'S VIEW,
ASSIGNMENT TO A COMBINED POSITION VIOLATED ARTICLE 55 (GENERAL COUNSEL'S
EXHIBIT 6). IT IS CLEAR FROM FRAME'S TESTIMONY THAT HE INTERPRETED
ARTICLE 55 AS APPLYING TO AN ACTIVE AIR TRAFFIC CONTROL SITUATION, WHERE
SUPERVISOR AND SUBORDINATE DISAGREE ABOUT HOW TO ROUTE PARTICULAR
TRAFFIC, AND NOT APPLYING TO ONE'S RESPONSIBILITY FOR AN ENTIRE SECTOR
OVER AN ENTIRE SHIFT. THUS, HE WAS OF THE VIEW THAT DUPATY WAS
ABDICATING RESPONSIBILITY FOR PROPER AIR TRAFFIC MANAGEMENT BECAUSE HE
DISAGREED WITH FRAME'S DECISIONS REGARDING APPROPRIATE DEPLOYMENT OF THE
AVAILABLE AIR TRAFFIC CONTROL SPECIALISTS. NO ARBITRATION DECISIONS OR
OTHER MATERIALS THROWING LIGHT ON THE MEANING OF ARTICLE 55 WERE
SUBMITTED.
5. IT IS NOT CLEAR WHEN DISCUSSIONS ABOUT DUPATY'S UNWILLINGNESS TO
HANDLE COMBINED POSITIONS OR MULTIPLE SECTORS AROSE. HOWEVER, A RATHER
FORMAL DISCUSSION, MEMORIALIZED IN A MEMORANDUM, TOOK PLACE ON MAY 9,
1979. ACCORDING TO DUPATY, FRAME CALLED HIM IN AN ASKED WHAT HIS
PROBLEM WAS, AN INQUIRY WHICH DUPATY "IMAGINED" WAS A REFERENCE TO
ARTICLE 55. DUPATY TESTIFIED THAT THERE FOLLOWED A DISCUSSION ABOUT HIS
FEELINGS WITH RESPECT TO SAFETY: THAT HE WAS NOT CURRENT IN SECTORS
THAT FRAME WANTED HIM TO WORK, THAT HE DID NOT FEEL IT WAS SAFE TO WORK
COMBINED POSITIONS AND THAT IT WAS ALSO UNSAFE TO WORK MULTIPLE SECTORS.
THE MEETING ENDED, HE ASSERTED, WITH FRAME'S STATEMENT THAT HE COULD
GET INTO TROUBLE IF HE CONTINUED TO OPERATE IN THAT MANNER, AND HIS
RESPONSE THAT THAT WAS THE WAY IT HAD TO WORK. ACCORDING TO FRAME, THE
DISCUSSION OR COUNSELING OCCURRED AFTER DUPATY REFUSED TO WORK A
COMBINED POSITION ON THE GROUND THAT HIS POSITION DESCRIPTION DID NOT
REQUIRE HIM TO WORK MORE THAN ONE POSITION AT A TIME. THE POSITION
DESCRIPTION WAS REVIEWED, AND DUPATY WAS INFORMED THAT HE WOULD BE
REQUIRED TO WORK COMBINED POSITIONS WHENEVER NECESSARY. HE ALSO GAVE
DUPATY A COPY OF THE CONDUCT AND DISCIPLINE SECTION OF THE SUPERVISOR'S
HANDBOOK, REVIEWED WITH HIM THAT PART HAVING TO DO WITH FAILURE TO
FOLLOW ORDERS, AND TOLD HIM THAT ANY REFUSAL TO PROMPTLY ASSUME A
COMBINED POSITION WOULD BE DEEMED A FAILURE TO CARRY OUT A DIRECT ORDER.
DUPATY RESPONDED THAT HE WOULD ONLY WORK A COMBINED POSITION WHEN GIVEN
A DIRECT ORDER, AND WOULD INVOKE ARTICLE 55 WHENEVER TOLD TO DO SO.
WHILE I REGARD BOTH DUPATY AND FRAME AS TRUTHFUL, I AM PERSUADED THAT
FRAME, ARMED WITH A CONTEMPORANEOUS MEMORANDUM OF THE EVENT, HAS THE
MORE ACCURATE RECOLLECTION. THUS, I FIND THAT THE DISCUSSION WAS
PRECIPITATED NOT BY A MERE INVOCATION OF ARTICLE 55, BUT BY DUPATY'S
REFUSAL TO ACCEPT A COMBINED POSITION ASSIGNMENT ON THE GROUND THAT HE
COULD NOT BE REQUIRED TO ACCEPT IT.
6. ON JUNE 19, 1979, FRAME DIRECTED DUPATY TO WORK A MANUAL
CONTROLLER POSITION. ACCORDING TO FRAME, DUPATY REFUSED ON THE GROUND
THAT THERE WAS NO ASSISTANT CONTROLLER TO HELP WITH THE PULLING OF THE
FLIGHT STRIPS FROM THE PRINTER. FRAME ASSISTED, PULLING THE STRIPS FOR
DUPATY UNTIL REQUIRED TO LEAVE THAT POSITION, AT WHICH TIME HE ORDERED
DUPATY TO PULL THE STRIPS, AND ACCUSED DUPATY OF FAILING TO DO SO. IT
IS, FRANKLY, UNCLEAR WHETHER DUPATY IN FACT REFUSED SUCH ORDERS OR
SIMPLY DELAYED COMPLIANCE WHILE MAKING THE PROTEST THAT HE WAS NOT
ASSISTED, FOR PURPOSES OF LAYING THE FOUNDATION FOR INVOKING ARTICLE 55.
AS WILL BECOME APPARENT, DELAY IN THE CONTROL ROOM, WHERE TIME'S IS
SURELY OF THE ESSENCE, IS CONSIDERED A REFUSAL. ACCORDING TO DUPATY,
HIS TROUBLES ON THIS OCCASION STEMMED FORM HIS INVOKING ARTICLE 55 AND
ALSO FROM THE MANNER IN WHICH HE WOULD RELIEVE CONTROLLERS ON THE BREAK
LIST. THUS, HE DENIES THAT FAILED TO TEAR THE STRIPS WHEN ORDERED TO DO
SO BY FRAME. HOWEVER, HE ADMITS THAT HE APPROACHED THE BREAK LIST IN A
MANNER WHICH WOULD APPEAR TO BE INSUBORDINATE, ALTHOUGH HE PROFESSED NOT
TO "KNOW HOW THE LIST WAS SUPPOSED TO RUN." THUS A LIST WAS KEPT FOR
PURPOSES OF COFFEE BREAKS. A CONTROLLER RETURNING FORM BREAK WOULD SIGN
HIS NAME AT THE BOTTOM, SCRATCH OFF THE NAME AT THE TOP, AND RELIEVE
THAT PERSON. OUT OF APPARENT IGNORANCE BECAUSE NEW TO THE BREAK LIST,
DUPATY WOULD SKIP THE FIRST PERSON IF THAT CONTROLLER WAS MANNING A
POSITION IN WHICH HE WAS NOT CURRENT, OR WAS MANNING COMBINED POSITIONS.
HE WOULD SIMPLY SKIP THE NAMES OF SUCH CONTROLLERS, AND RELIEVE THE
FIRST PERSON OCCUPYING A SINGLE POSITION IN WHICH HE FELT CURRENT. A
COUNSELING SESSION WITH FRAME OCCURRED ON THE NEXT DAY, WITH UNION
REPRESENTATIVE RAMIREZ PRESENT. THE TWO INCIDENTS WERE DISCUSSED AND,
ACCORDING TO DUPATY, HE WAS WARNED THAT DISCIPLINARY ACTION WOULD RESULT
FROM HIS "METHODS OF OPERATION," I.E., NOT RELIEVING THE FIRST-NAMED
CONTROLLER. HE WAS ADVISED THAT THE INSTRUCTION TO RELIEVE THE POSITION
AT THE TOP OF THE LIST WAS A DIRECT ORDER, AND HE SUBSEQUENTLY COMPLIED.
ODDLY, RESPONDENT DID NOT MENTION THIS INSTANCE OF WHAT WAS, ARGUABLY,
INSUBORDINATION. RATHER, IT LIMITS THE DISCUSSION OF JUNE 20 TO
DUPATY'S FAILURE TO PROMPTLY CARRY OUT AN ORDER TO TEAR STRIPS,
INDICATES THAT HE DEFENDED ON THE GROUND THAT HE PERFORMED SUCH DUTIES
IN A TIMELY MANNER, AND STATES THAT HE WAS TOLD THAT FAILURE CARRY OUT
AN ORDER WOULD RESULT IN DISCIPLINE. ALTHOUGH RESPONDENT DOES NOT RELY
UPON THE INCIDENT CONCERNING THE BREAK LIST, I INCLUDE IT IN THIS
DISCUSSION, AS IT WAS VOLUNTEERED BY DUPATY AND IT DOES THROW LIGHT ON
HIS DISPOSITION TOWARD HIS WORK. HE HAD BEEN ADVISED IN MAY THAT HE
WOULD BE REQUIRED TO MAN COMBINED POSITIONS, AND THAT HIS FAILURE TO
PROMPTLY ASSUME ONE WHEN ORDERED TO DO SO WOULD CONSTITUTE
INSUBORDINATION. HE WAS ALSO RATHER POINTEDLY FAMILIARIZED WITH THE
DISCIPLINE PROVISIONS OF THE SUPERVISOR'S MANUAL. IN SUCH CIRCUMSTANCES
IT IS, AT A MINIMUM, PUZZLING THAT ONE WITH THE INTELLIGENCE ASSOCIATED
WITH A GS-14 POSITION WOULD ASSUME THAT HE WAS FREE TO SKIP OVER THOSE
AT THE TOP OF A RELIEF LIST UNTIL HE FOUND ONE OCCUPYING A NONCOMBINED
AND THUS ACCEPTABLE POSITION. HIS FAILURE TO AT LEAST FIRST INQUIRE
ABOUT THE LEGITIMACY OF SUCH A PRACTICE STRONGLY SUGGESTS THE MINDSET OF
AN EMPLOYEE PRONE TO TAILOR HIS TERMS AND CONDITIONS OF EMPLOYMENT TO
HIS DESIRES.
7. ON JUNE 20, DUPATY FILED AN UNSATISFACTORY CONDITION REPORT
(UCR). THERE IS NO EVIDENCE WHETHER THIS OCCURRED BEFORE OR AFTER THE
COUNSELING SESSION. A UCR IS FILED ON AN FAA FORM, PURSUANT TO FAA
REGULATIONS. AS THE NAME SUGGESTS, IT IS USED TO REPORT UNSATISFACTORY
CONDITIONS (OFTEN UNSAFE). A COPY IS PROMPTLY SENT TO THE NATIONAL
HEADQUARTERS, AND LOCAL MANAGEMENT IS REQUIRED TO INVESTIGATE AND REPORT
UPON THE MATTER. THE COLLECTIVE BARGAINING AGREEMENT IS SILENT ON THE
MATTER, AND THERE IS NO SUGGESTION THAT THE UNION IS IN ANY WAY INVOLVED
IN THAT PROGRAM.
THE UCR IN ESSENCE REPORTED THAT THE HOUSTON SPECIALITY (TO WHICH
DUPATY WAS ASSIGNED) WAS UNDERSTAFFED, THAT CONTROLLERS HAD TO WORK
COMBINED POSITIONS - THUS SPREADING THEIR SPAN OF ATTENTION -, AND THAT
LOCAL MANAGEMENT, INCLUDING THE CENTER CHIEF, HAD BEEN ADVISED OF THIS
DANGEROUS PROBLEM TO NO AVAIL. MANAGEMENT RESPONDED THAT THE STAFF WAS
ADEQUATE, THAT THE USE OF COMBINED POSITIONS WAS GENERALLY AT THE
REQUEST OF THE CONTROLLERS, FOR WHOM IT PERMITTED MORE LIBERAL BREAK
TIME, AND THAT MATCHING THE AVAILABLE PERSONNEL TO THE WORKLOAD DID NOT
CREATE A DANGEROUS CONDITION.
8. ON JULY 21, DUPATY WAS INVOLVED IN AN INCIDENT WHICH LED TO HIS
BEING CITED FOR INSUBORDINATION. HE CAME OFF A BREAK AND FOUND GADDIE
(WHO WAS WORKING WITH A TRAINEE) NEXT ON THE LIST. GADDIE TOLD HIM IT
WAS A NICE SECTOR. DUPATY REPLIED THAT IT WAS NOT, WITHOUT AN ASSISTANT
CONTROLLER. GADDIE TOLD HIM THAT THAT WAS BETWEEN HIM AND HIS SUPERIOR.
DUPATY SAID, "OK, WAIT A MINUTE," CALLED SUPERVISOR JACK STACY, AND
INQUIRED WHETHER HE WOULD HAVE AN ASSISTANT CONTROLLER TO HELP HIM.
STACY RELIED THAT HE WOULD TEAR THE STRIPS, BUT THAT IF HE WAS UNABLE TO
TAKE UP THE SLACK, THE BURDEN WOULD BE ON DUPATY TO DO SO. STACY WAS
WALKING AWAY AS HE UTTERED THESE WORDS, AND DUPATY CALLED HIM BACK AND
REPEATED HIS QUESTION WHETHER HE WAS GOING TO HAVE AN ASSISTANT OR HAD
TO HANDLE BOTH JOBS. STACY RESPONDED BY ASKING DUPATY WHETHER HE WAS
GOING TO PLUG IN (AS THE POSITION WAS NOW VACANT), AND DUPATY SAID HE
WOULD NOT DO SO WITHOUT A BRIEFING. GADDIE WAS THEN CALLED BACK AND
PLUGGED IN WHILE DUPATY CONTINUED TO INQUIRE OF STACY WHETHER HE WAS TO
HAVE AN ASSISTANT. STACY TOLD HIM TO RELIEVE GADDIE AND THEN HE WOULD
LET DUPATY KNOW. /4/ DUPATY THEN ASKED WHETHER STACY'S WORDS WERE A
DIRECT ORDER. STACY SAID THEY WERE AND DUPATY PLUGGED IN, RECEIVED HIS
BRIEFING, FOUND IT TOO FAST, HE SAID, TO BE FULLY ABSORBED, AND RECEIVED
A SECOND BRIEFING. NEEDLESS TO SAY, EVEN A BRIEF INTERRUPTION IN THE
COVERAGE OF AIR TRAFFIC CONSTITUTES AN UNDESIRABLE CONDITION.
THAT EVENING A MEETING OCCURRED DEVOTED TO THIS INCIDENT. ASSISTANT
CHIEF BERMOND CROCKER, SUPERVISOR STACY, DUPATY AND PATCO PRESIDENT
JUAREZ WERE PRESENT. CROCKER ANNOUNCED THE PURPOSE OF THE MEETING WAS
TO DISCUSS PROPOSED DISCIPLINARY ACTION BASED ON DUPATY'S REFUSAL TO
OBEY AN ORDER. DUPATY RESPONDED THAT HE DID NOT UNDERSTAND THAT STACY
HAD COMMUNICATED A DIRECT ORDER, AND THAT WHEN HE DID, HE OBEYED. IT
APPEARS THAT HE DID NOT REGARD A SUPERVISOR'S INSTRUCTION AS AN ORDER,
ABSENT THE USE OF THAT WORD. ACCORDING TO JUAREZ, THE FLAT CHARGE OF
INSUBORDINATION WAS MODIFIED TO A FAILURE "PROMPTLY TO COMPLY." THE TWO
OF THREE MINUTES DELAY IN ASSUMING THE POSITION WAS, HE SAID, CAUSED BY
DUPATY'S NEED TO KNOW WHETHER HE WAS BEING REQUIRED TO ASSUME COMBINED
POSITION, FOR PURPOSES OF DETERMINING WHETHER HE SHOULD INVOKE ARTICLE
55. THERE IS NO EVIDENCE THAT ARTICLE 55 WAS, IN FACT, MENTIONED DURING
THE INCIDENT. ON AUGUST 25, DUPATY RECEIVED AN OFFICIAL REPRIMAND FOR
INSUBORDINATION FROM SUPERVISOR FRAME, BASED ON THE JULY 29 INCIDENT AS
WELL AS THE MATTERS THAT LED TO THE COUNSELING SESSIONS ON MAY 9 AND
JUNE 19 (RESPONDENT EXHIBIT 1).
9. ON AUGUST 13, DUPATY WAS CONTROLLING CERTAIN MILITARY TRAFFIC
WHICH, BECAUSE OF WEATHER, WAS DIVERTED TO HIS SECTOR. BEFORE LONG
THREE PILOTS HAD DECLARED EMERGENCIES ON THE GROUND THEY WERE RUNNING
SHORT OF FUEL WHILE AWAITING CLEARANCE TO LAND. NOTWITHSTANDING HIS
PROFESSION OF THE SERIOUSNESS OF THIS EMERGENCY, DUPATY DID NOT FILE A
UCR UNTIL SEPTEMBER 9, WHEN 28 OF THE ALLOWED 30 DAYS HAD ALREADY
ELAPSED. IN THE UCR (GENERAL COUNSEL EXHIBIT 7) HE REPORTED THAT THE
MILITARY AIRCRAFT HAD NOT FILED ALTERNATE FLIGHT PLANS, AND THAT THREE
OF THE PILOTS HAD DECLARED EMERGENCIES "FOR LACK OF EXPEDITIOUS
HANDLING." THE MATTER WAS INVESTIGATED BY TEAM SUPERVISOR FRAME, WHO WAS
ABSENT ON THE DAY OF THE INCIDENT. THE TAPES OF CONTROLLER-PILOT
DISCUSSIONS HAD BY THEM ALLEGEDLY BEEN DESTROYED. AFTER DISCUSSIONS
WITH THE TEAM SUPERVISOR, OTHER TEAM MEMBERS AND THE ASSISTANT CHIEF,
FRAME FILED HIS REPORT. HE CONCLUDED THAT THE PROBLEMS OF THAT DAY WERE
CREATED "IN MOST PART" BY THE FAILURE OF THE INVOLVED CONTROLLERS TO
HANDLE THE MATTER IN "AN EXPEDITIOUS AND PROFESSIONAL MANNER." THIS
REPORT WAS FILED ON SEPTEMBER 20, AND ON OCTOBER 5, THE HOUSTON CENTER
CHIEF, CONCLUDED THAT AN "UNSAFE CONDITION MAY HAVE RESULTED FROM THE
INVOLVED CONTROLLERS' /5/ ACTION OR LACK OF ACTION," AND OBSERVED THAT
WHILE THE TEAM SUPERVISOR DID NOT FEEL REMEDIAL TRAINING WAS NECESSARY,
HE FELT CLOSE SUPERVISION WAS. A COPY OF THIS SHOULD HAVE BEEN PROVIDED
TO DUPATY. DUE TO THE ALLEGED FORGETFULNESS, HE RECEIVED ONE UPON
REQUEST ON JANUARY 19, 1980. DUPATY THEREUPON FILED A NEW UCR, STATING
THAT THE HAZARDOUS SITUATION HAD NOT BEEN CORRECTED. HE NOTED THAT THE
REPLY TO HIS ORIGINAL UCR WAS THE "CLEAR RESULT OF INEFFICIENT
INVESTIGATION (AN I DON'T GIVE A DAMN ATTITUDE) WHICH IS PROMOTING THE
CONTINUANCE OF PROCEDURES THAT CAUSE HAZARDOUS SITUATIONS" AND THAT HE
"DID NOT APPRECIATE NOR ACCEPT THE REPLY." MANAGEMENT AGAIN DISAGREED,
FINDING NO PROCEDURAL DEFICIENCIES IN THE HANDLING OF MILITARY TRAFFIC.
10. DURING THE TIME THAT THE SEPTEMBER UCR WAS UNDER INVESTIGATION
AND REVIEW, THERE WERE ONGOING DISCUSSIONS ABOUT THE RESOLUTION OF THE
REPRIMAND. BY ITS TERMS DUPATY HAD 20 DAYS FROM ITS RECEIPT ON AUGUST
25 TO SUBMIT HIS REPLY. FAILURE TO REPLY IN THIS TIME FRAME LED TO
AUTOMATIC PLACEMENT OF THE REPRIMAND IN HIS OFFICIAL PERSONNEL FILE. IF
A REPLY WAS ENTERED, AND THE SUPERVISOR DECIDED NEVERTHELESS TO SUSTAIN
THE REPRIMAND, DUPATY COULD FILE A GRIEVANCE AT STEP 2 OF THE CONTRACT'S
GRIEVANCE PROCEDURE. DUPATY, UNION PRESIDENT JUAREZ AND UNION
REPRESENTATIVE MATHEWS ON SEPTEMBER 17, ORALLY PRESENTED A GRIEVANCE TO
FRAME, WHO REJECTED IT ON THE GROUND IT WAS UNTIMELY AND DID NOT COMPLY
WITH THE PROCEDURAL INSTRUCTIONS IN THE REPRIMAND LETTER. MEETINGS
NEVERTHELESS FOLLOWED FOR THE PURPOSE OF DISCUSSING REMOVAL OF THE
REPRIMAND. ON OCTOBER 1, THERE WAS A GENERAL AGREEMENT TO "WIPE THE
SLATE CLEAN," I.E., TO REMOVE THE LETTER, IF THAT COULD BE DONE, UPON
DUPATY'S PROMISE TO WORK AS HE ONCE HAD. IT IS CLEAR THAT THESE
DISCUSSIONS INCLUDED TALK ABOUT ARTICLE 55. THUS JUAREZ TESTIFIED THAT
AN AGREEMENT WAS REACHED WHICH WOULD ENABLE DUPATY AND AND FRAME TO
OPERATE WITHOUT CONFLICT: DUPATY WOULD INVOKE ARTICLE 55 AND FRAME
"WOULD LET HIM WITHOUT . . . I BELIEVE AT THIS POINT DURING THE
DISCUSSIONS, THE FACT THAT ED SAID HE WAS INVOKING ARTICLE 55 BECAUSE IT
WAS A DANGEROUS SITUATION SEEMED TO IRRITATE MR. FRAME." FRAME
ACKNOWLEDGED THAT THERE WAS TALK OF ARTICLE 55, THAT HE AGREED TO ACCEPT
INVOCATION OF ARTICLE 55 - SOMETHING HE BELIEVED HE HAD TO DO ANYWAY.
HE DENIED THAT HE HAD REJECTED ATTEMPTS TO INVOKE ARTICLE 55, STATING
THAT HE HAD, HOWEVER, DISPUTED WHETHER ARTICLE 55 COULD PROPERLY BE
INVOKED UNDER THE CONTRACT RESPECTING THE SUBJECT MATTER RAISED BY
DUPATY. WHILE ALL OF THIS TESTIMONY IS MOST IMPRECISE, RESPONDENT'S
EXHIBIT NO. 13 MAKES IT CLEAR THAT ARTICLE 55 WAS A STUMBLING BLOCK.
FRAME DID NOT QUARREL WITH USE OF THE ARTICLE, BUT INSISTED DUPATY MUST
HAVE A VALID REASON (RESPONDENT EXHIBIT NO. 13). THIS CLEARLY RELATES
TO A CONTINUING DISPUTE OVER WHETHER THAT ARTICLE APPLIED TO SITUATIONS
OF ALLEGED UNDERSTAFFING, OR ONLY TO "LIVE" TRAFFIC MANAGEMENT, WHERE
SUPERVISOR AND SUBORDINATE DISAGREE AS TO HOW IT SHOULD BE HANDLED.
THERE IS ALSO A CLEAR SUGGESTION THAT THE TWO HAD QUARRELED OVER THE
QUESTION WHETHER, AND IN WHAT SENSE, A CONTROLLER IS RELIEVED OF
RESPONSIBILITY FOR HIS JOB PERFORMANCE AFTER PROTESTING ASSIGNMENT TO A
COMBINED POSITION. AS NOTED, DUPATY APPEARED TO BELIEVE SUCH AN
ASSIGNMENT WAS ITSELF VIOLATIVE OF ARTICLE 55 (GENERAL COUNSEL'S EXHIBIT
NO. 6). AT THE LAST SUCH MEETING, ON OCTOBER 6, THEY AGREED TO ATTEMPT
TO WORK TOGETHER WITHOUT CONFLICT, AND FRAME AGREED TO TRY TO HAVE THE
REPRIMAND REMOVED FROM DUPATY'S FILE. DUPATY FILED AN UNDESCRIBED EEO
COMPLAINT, WHICH HE SAID "WENT FORMAL" IN NOVEMBER, AND AS A CONSEQUENCE
OF WHICH HE LEARNED THAT THE REPRIMAND HAD BEEN REMOVED ON ABOUT
DECEMBER 14. HE THEREUPON WITHDREW HIS EEO COMPLAINT "WITH
RESERVATIONS." ACTUAL REMOVAL OF THE REPRIMAND WAS ACCOMPLISHED BY A
LETTER DATED NOVEMBER 29 FROM HOUSTON CENTER CHIEF PRICE TO THE CHIEF OF
THE EMPLOYMENT BRANCH, FAA SOUTHWEST REGION IN FORT WORTH.
11. ON JANUARY 27, 1980, DUPATY AND FRAME DISCUSSED HIS ANNUAL
PERFORMANCE RATING (RESPONDENT'S EXHIBIT NO. 16). THE RATING WAS
"SATISFACTORY." OF SIX "MAJOR JOB ASSIGNMENTS" DUPATY RECEIVED FOUR
"EXCEEDS REQUIREMENTS" AND TWO "FAR EXCEEDS REQUIREMENTS." NEVERTHELESS,
IN THE NARRATIVE FRAME SAID THE FOLLOWING:
MR. DUPATY HAS BEEN PERFORMING AT AN ACCEPTABLE LEVEL DURING THE
PROCEEDING 12
MONTHS. HOWEVER, MR. DUPATY IS A VERY CAPABLE INDIVIDUAL WHO HAS THE
ABILITY TO PERFORM AND
CONTRIBUTE AT A MUCH HIGHER LEVEL OF EXCELLENCE THAN HE HAS DURING
THIS RATING
PERIOD. MR. DUPATY IS FULLY AWARE OF THE REQUIREMENTS AND
RESPONSIBILITIES OF HIS JOB. FOR
MANY REASONS, HE HAD CHOSEN TO PERFORM IN A MANNER WHICH ONLY MEETS
BASIC REQUIREMENTS IN
SEVERAL JOB ASSIGNMENT AREAS. IN SEVERAL WAYS, HIS ACTIONS HAVE BEEN
VERY SELF-ORIENTED
SHOWING LITTLE CONSIDERATION FOR THOSE WORKING WITH HIM AND
EXHIBITING LITTLE APPRECIATION OF
THE IMMENSE PROBLEMS INVOLVED IN MANAGING AN EN-ROUTE FACILITY.
I WILL CONTINUE TO ENCOURAGE ED TO DEVELOP AN ATTITUDE OF COOPERATION
AND MUTUAL
UNDERSTANDING RATHER THAN BEING SO SELF DIRECTED. AT THE SAME TIME,
I WILL CONTINUE TO TRY TO
EARN ED'S RESPECT AS WELL AS HIS RESPECT FOR MANAGEMENT AS A WHOLE
THROUGH THE TYPE OF
LEADERSHIP AND DIRECTION THAT IS CONDUCIVE TO MUTUAL UNDERSTANDING,
TRUST, AND THE ACHIEVEMENT
OF EXCELLENCE.
TO THIS DUPATY RESPONDED AS FOLLOWS:
I, EDWARD DUPATY, DISAGREE WITH MOST AND RESENT SOME OF THE RATINGS
AND REMARKS CONTAINED
IN THIS EVALUATION. IN THE REMARKS, THE WORKING GIVES A FALSE
IMPRESSION OF WHAT THE PROBLEM
IS REALLY ABOUT. SATCS FRAME WI-L NEVER BE ABLE TO ENCOURAGE ME TO
DEVELOP AN ATTITUDE WHICH,
IN MY OPINION, CONSTITUTES AN UNSAFE AND/OR UNHEALTHY ATMOSPHERE.
THEREFORE, I AM RESERVING
THE RIGHT TO APPEAL THIS EVALUATION.
DUPATY FURTHER RESPONDED BY EXECUTING ON FEBRUARY 14 THE UNFAIR LABOR
PRACTICE CHARGE WHICH GAVE RISE TO THIS PROCEEDING, AND BY VISITING ON
THE SAME DAY AN EEO COUNSELOR. ON APRIL 10 HE SIGNED A COMPLAINT OF
RACIAL DISCRIMINATION WHICH WAS STILL PENDING AT THE TIME OF THE HEARING
(RESPONDENT'S EXHIBIT NO. 2). IN IT HE ASSERTED THAT FRAME
DISCRIMINATED AGAINST HIM:
BY THE LOW-GRADING OF MY PERFORMANCE EVALUATION REPORT AND BY THE
CONSTANT ASSASSINATION OF
CHARACTER BY MEANS OF DEFAMATORY (SIC) STATEMENTS WHICH DISCREDIT
WITHOUT CONSIDERATION OR
JUST CAUSE. I AM TURNED DOWN WHEN I ASK FOR HELP.
AS CORRECTIVE ACTION HE REQUESTED THAT AN ACCURATE AND OBJECTIVE
EVALUATION BE MADE, THAT A WRITTEN APOLOGY BE OFFERED FOR THE OFFENSIVE
REPLY TO HIS SEPTEMBER UCR AND THAT THERE BE A BETTER UNDERSTANDING AND
COMMUNICATION, WITH RESPECT FOR HIS STATUS AS A PROFESSIONAL, AND, ABOVE
ALL, AS A HUMAN BEING.
DISCUSSION AND CONCLUSIONS
IN THE SPRING OF 1979, DUPATY'S WORK CHANGED IN TWO IMPORTANT
RESPECTS: HE WAS PLACED UNDER SUPERVISOR FRAME AND HE WAS ASSIGNED TO
TRAIN SANCHEZ. HE SOON FELT THAT THIS NEW RESPONSIBILITY WAS
UNDERMINING HIS CAPACITY OF STAY "CURRENT," OR FULLY FAMILIAR WITH THE
MANY ASPECTS OF A JOURNEYMAN CONTROLLER'S JOB. HE REQUESTED GREATER
OPPORTUNITY TO KEEP HIMSELF CURRENT, AND HE BEGAN TO RESIST ASSIGNMENT
TO POSITIONS IN WHICH HE WAS NOT, OR AT LEAST FELT HE WAS NOT, CURRENT,
AND TO INVOKE ARTICLE 55 WHEN GIVEN SUCH ASSIGNMENTS OR WHENEVER GIVEN A
COMBINED OR MULTIPLE POSITION. THUS HE RESISTED ASSIGNMENT TO COMBINED
POSITIONS ON THE GROUND THAT HIS JOB DESCRIPTION DID NOT REQUIRE HIM TO
ACCEPT, AND ON THE GROUND THAT SUCH ASSIGNMENTS VIOLATED ARTICLE 55.
CLEARLY, HE WAS CONCERNED, ESPECIALLY WITH RESPECT TO COMBINED AND
MULTIPLE POSITIONS, THAT HE COULD NOT SAFELY CONTROL AIR TRAFFIC. HE
WAS THE ONLY CONTROLLER TO INVOKE ARTICLE 55 CONCERNING SUCH
ASSIGNMENTS. IT IS EQUALLY CLEAR THAT HE FEELS, ASIDE FROM HIS PERSONAL
CIRCUMSTANCES, THAT IT IS GENERALLY UNSAFE TO WORK COMBINED POSITIONS
AND THAT THE UNDERSTAFFING AT THE HOUSTON SPECIALTY, AS REPORTED IN HIS
JUNE 20 UCR, CREATES A "MOST DANGEROUS PROBLEM." THUS HE IS AT ODDS WITH
MANAGEMENT OVER THE EXERCISE OF ITS PREROGATIVE TO DEPLOY ITS AVAILABLE
MANPOWERS AS IT SEES FIT.
ON THREE OCCASIONS DUPATY, IN ADDITION TO EXPRESSING HIS
UNWILLINGNESS TO ASSUME A POSITION, HAS IN FACT DELAYED DOING SO. ON
MAY 9, HE DID SO IN THE BELIEF THAT HIS JOB DESCRIPTION PRECLUDED ANY
REQUIREMENT THAT HE ACCEPT A COMBINED POSITION. THIS LED TO A
COUNSELING SESSION IN WHICH FRAME WARNED HIM THAT ANY FURTHER FAILURE
PROMPTLY TO ASSUME SUCH A POSITION WOULD BE CONSIDERED AN ACT OF
INSUBORDINATION. HE RESPONDED THAT HE WOULD DO SO ONLY WHEN GIVEN A
DIRECT ORDER, AND THAT HE WOULD INVOKE ARTICLE 55 EVERYTIME HE RECEIVED
SUCH AN ORDER. SIX WEEKS LATER, ON JUNE 19, SUPERVISOR FRAME ACCUSED
HIM OF FAILING TO PULL FLIGHT STRIPS. AT THE SUBSEQUENT COUNSELING
MEETING DUPATY ASSERTED THAT HE PERFORMED HIS DUTIES IN A TIMELY MATTER.
HE WAS NEVERTHELESS WARNED THAT FAILURE TO PROMPTLY CARRY OUT AN ORDER
COULD RESULT IN DISCIPLINARY ACTION. THERE IS NO EVIDENCE THAT ARTICLE
55 WAS MENTIONED DURING EITHER THE INCIDENT OR THE COUNSELING SESSION.
WHILE DUPATY PROTESTED THE LACK OF AN ASSISTANT, A MATTER WHICH
ROUTINELY CAUSED HIM TO INVOKE THE ARTICLE, HE WAS IN FACT COUNSELED FOR
NOT PROMPTLY OBEYING ORDERS. FINALLY, ON JULY 29, DIFFERENT SUPERVISOR
CAME TO THE CONCLUSION THAT DUPATY INSUBORDINATELY DELAYED ASSUMPTION OF
A POSITION. ON THIS OCCASION THE DELAY IS ACKNOWLEDGED. THAT
SUPERVISOR PROPOSED A REPRIMAND, WHICH REGULAR SUPERVISOR FRAME ISSUED
ON AUGUST 19. AGAIN, THERE IS NO SUGGESTION FROM EITHER THE TESTIMONY
OF DUPATY OR FROM THE REPORTS OF STACY, THAT ARTICLE 55 PLAYED ANY ROLE
IN THAT DELAY. WHILE DUPATY, AS PATCO PRESIDENT JUAREZ SAID, MAY HAVE
BEEN ATTEMPTING TO DETERMINE WHETHER HE WOULD HAVE AN ASSISTANT, FOR
PURPOSES OF INVOKING ARTICLE 55, IF HE WAS NOT PROVIDED ONE, THERE WAS
NO DISCUSSION OF THAT MATTER. NOR IS IT CLEAR WHY THE EXERCISE OF
ARTICLE 55 RIGHTS OUGHT TO CAUSE ANY DELAY.
THUS, EXCEPT FOR DUPATY'S TESTIMONY THAT HE "IMAGINED" HE WAS CALLED
IN AND THREATENED WITH DISCIPLINE ON MAY 9 9ECAUSE HE HAD BEEN INVOKING
ARTICLE 55, THERE IS NO SUGGESTION THAT HIS HABIT OF DOING SO LED TO HIS
BEING COUNSELED OR REPRIMANDED. HE ATTRIBUTES NO WORDS TO ANY
SUPERVISOR WHICH WOULD INDICATE A DISPOSITION TO PUNISH HIM SIMPLY FOR
INVOKING THE ARTICLE. CONTRARY TO THE ASSERTION THAT THE REPRIMAND
LETTER IS REPLETE WITH REFERENCES TO ARTICLE 55, THAT DOCUMENT MENTIONS
IT ONLY ONCE, IN QUOTING DUPATY'S EXPRESSION OF HIS DETERMINATION TO
ACCEPT COMBINED POSITIONS ONLY WHEN ORDERED TO DO SO AND TO INVOKE THE
ARTICLE WHENEVER HE RECEIVED SUCH AN ORDER. IT IS CLEAR THAT, WHEN
DUPATY INITIATED EFFORTS TO HAVE THE LETTER WITHDRAWN, DISCUSSIONS TOOK
PLACE ABOUT HIS RIGHT TO INVOKE THE ARTICLE, AND THAT HE WAS GIVEN
ASSURANCE THAT HE HAD THAT RIGHT. THUS IT IS EVIDENT THAT THE USE OF
THE ARTICLE WAS A BONE OF CONTENTION BETWEEN FRAME AND DUPATY, AND IT
APPEARS THAT ITS USE IN EVERY SITUATION DUPATY REGARDED AS POSING A
DANGER IRRITATED FRAME. THIS IS WHOLLY UNDERSTANDABLE, ESPECIALLY IN
LIGHT OF THE QUARREL WHETHER IT APPROPRIATELY APPLIED TO STAFFING-LEVEL
DISPUTES AS OPPOSED TO DISAGREEMENTS OVER THE MANAGEMENT OF PARTICULAR
TRAFFIC. ULTIMATELY, IT IS THE FACT THAT OVER THE MANAGEMENT OF
PARTICULAR TRAFFIC. ULTIMATELY, IT IS THE FACT THAT DUPATY INVOKES
ARTICLE 55 VIRTUALLY EVERY DAY, THAT HE FAILED TO REPORT EVEN A SINGLE
INSTANCE OF A SUPERVISOR EXPLICITY THREATENING DISCIPLINE ON THAT GROUND
OR BECAUSE HE FILED THE UNSATISFACTORY CONDITION REPORT, AND THAT THE
THREE COUNSELING SESSIONS WHICH LED TO THE REPRIMAND WERE BASED ON
FAILURE PROMPTLY TO CARRY OUT ORDERS. SINCE THE SERIOUS MATTER OF NOT
PROMPTLY PLUGGING IN TO RELIEVE A DEPARTING CONTROLLER IS ACKNOWLEDGED,
AND IS THE INCIDENT WHICH TRIGGERED THE LETTER OF REPRIMAND, IT IS
DIFFICULT TO UNDERSTAND ON WHAT GROUND THAT REPRIMAND IS ARGUED TO
CONSTITUTE A REPRISAL FOR THE ALLEGEDLY PROTECTED ACTIVITY OF INVOKING
THE ARTICLE OR FILING THE UCR. WHILE THE REPRIMAND DID INDEED FOLLOW
THESE OTHER ACTIVITIES, AND THEREFORE INCONTESTABLY MAY HAVE BEEN CAUSED
BY THEM, DUPATY SURELY PROVIDED THE OPPORTUNITY AND EVEN THE OBLIGATION
TO TAKE ACTION SEEKING A CORRECTION OF HIS INCREASING TENDENCY TO DELAY
ACCEPTANCE OF ASSIGNMENTS BY ARGUING ABOUT ORDERS, DISPUTING WHETHER
INSTRUCTIONS CONSTITUTED ORDERS, AND ASKING WHETHER HE WOULD HAVE AN
ASSISTANT WHEN IT WAS MADE OBVIOUS, IF NOT EXPLICIT, THAT HE WOULD NOT.
IN SUCH CIRCUMSTANCES, THERE IS GROUND FOR NO MORE THAN SUSPICION THAT
THE USE OF ARTICLE 55, BECAUSE IT WAS NECESSARILY ENMESHED IN HIS
RESISTANCE TO SUCH ASSIGNMENTS, MAY HAVE BEEN AN INGREDIENT IN FRAME'S
DECISION TO ISSUE AN OTHERWISE WARRANTED REPRIMAND. I THEREFORE
CONCLUDE THAT THE GENERAL COUNSEL HAS NOT CARRIED THE BURDEN OF PROOF,
AND I RECOMMEND DISMISSAL OF THE ALLEGATION THAT DUPATY WAS REPRIMANDED
IN RETALIATION FOR HIS ACTIVITY IN INVOKING CONTRACT ARTICLE 55, OR IN
FILING THE UCR.
THE ALLEGATION THAT SUPERVISOR FRAME ON JANUARY 19, 1980, MADE
DEROGATORY REMARKS CONCERNING . . . (DUPATY'S) PERFORMANCE OF DUTIES ON
AN UNSAFE (SIC) CONDITION REPORT BECAUSE OF . . . (HIS) MEMBERSHIP IN
AND ACTIVITIES ON BEHALF OF" PATCO IS NOT SUPPORTED BY THE EVIDENCE, FOR
THE ABOVE-STATED REASONS, INSOFAR AS IT IS BASED UPON THE INVOCATION OF
ARTICLE 55. THE REMAINING ALLEGEDLY IMPERMISSIBLE REASON IS THE VERY
FILING OF THE UCR ITSELF. THE RECORD IS DEVOID OF EVIDENCE THAT DUPATY
WAS THREATENED, UPBRAIDED OR EVEN CRITICIZED FOR FILING THE UCR WHICH
LED TO THIS ALLEGATION OR THE FILING THE EARLIER ONE. AS THE UCR
REQUIRED AN INVESTIGATION OF THE INCIDENT AND A REPORT, ANY HONEST
INVESTIGATION AND REPORT WAS PREGNANT WITH THE POSSIBILITY THAT FAULT
WOULD BE FOUND WITH THE CONTROLLER'S JOB PERFORMANCE. I AM ASKED TO
CONCLUDE, SOLELY ON THE GROUND THAT THE REPORT WAS CRITICAL OF DUPATY'S
PERFORMANCE ON THAT DAY, THAT SUCH CRITICISM WAS NOT BASED ON AN
OBJECTIVE ASSESSMENT OF THAT PERFORMANCE BUT WAS RATHER MOTIVATED BY A
DESIRE TO RETALIATE AGAINST HIM FOR FILING THE UCR. AS NOTED, THERE IS
NO INDEPENDENT EVIDENCE THAT FRAME OR ANY MANAGEMENT OFFICIAL WAS
DISPOSED TO PUNISH DUPATY FOR FILING THE REPORT. NOR IS THERE ANY
EVIDENCE THAT THE CRITICISM WAS UNWARRANTED, SO AS TO GIVE RISE TO A
SUSPICION THAT THE ALLEGEDLY UNLAWFUL REASON WAS RESPONDENT'S TRUE
MOTIVE. AGAIN, THE CASE SOUNDS IN PAST HOC, ERGO PROPTER HOC. I
THEREFORE RECOMMEND THAT THIS ALLEGATION ALSO BE DISMISSED, AS TOTALLY
UNSUPPORTED BY THE EVIDENCE, AND I NEED NOT REACH THE HIGHLY
QUESTIONABLE CONTENTION THAT SUCH ACTIVITY CONSTITUTES ASSISTANCE TO A
UNION.
FINALLY, THERE IS THE MATTER OF THE ANNUAL PERFORMANCE EVALUATION, IN
WHICH FRAME, IN GIVING DUPATY THE SAME "SATISFACTORY" HE HAD PREVIOUSLY
RECEIVED, WAS RATHER CRITICAL OF HIS PERFORMANCE. THUS HE NOTED THAT
DUPATY MET ONLY THE BASIC REQUIREMENTS IN SEVERAL JOB AREAS, AND WAS
SELF-ORIENTED, SHOWING LITTLE CONSIDERATION FOR THOSE WORKING WITH HIM
AND LITTLE APPRECIATION FOR THE IMMENSE PROBLEMS INVOLVED IN MANAGING
THE FACILITY. HE ALSO SOLICITED A COOPERATIVE ATTITUDE. DUPATY
RESPONDED THAT FRAME WOULD NEVER ENCOURAGE IN HIM THE DEVELOPMENT OF AN
ATTITUDE WHICH "CONSTITUTES AN UNSAFE AND/OR UNHEALTHY ATMOSPHERE." THIS
REMARK INDICATES THAT DUPATY AT LEAST FELT THAT SAFETY CONSIDERATIONS
(PRESUMABLY ARTICLE 55 AND UCRS) WERE THE UNARTICULATED PREMISE OF
FRAME'S CONCLUSION THAT HE WAS SELF-ORIENTED, SELF-DIRECTED,
UNCOOPERATIVE AND UNAPPRECIATIVE. THERE IS NO EVIDENCE THAT, IN THE
DISCUSSIONS WHICH SHOULD ATTEND AN EVALUATION, FRAME MADE ANY EXPLICIT
MENTION, OR OTHERWISE SUGGESTED, THAT ARTICLE 55 AND UCRS WERE THE BASIS
FOR HIS COMMENTS. WE ARE THUS LEFT WITH THE DOCUMENT ITSELF, AND THE
INTERPRETATION IT SHOULD RECEIVE IN A CONTEXT WHERE DUPATY HAD BEEN
CLEARLY UNCOOPERATIVE IN ACCEPTING ASSIGNMENTS AND ALSO HAD BEEN ACTIVE
IN INVOKING ARTICLE 55 AND IN FILING UCRS.
I HAVE CONCLUDED THAT FRAME WAS ANNOYED AT DUPATY'S ROUTINE USE OF
ARTICLE 55 WHENEVER CALLED UPON TO ASSUME COMBINED POSITIONS, A USE HE
REGARDED AS INAPPROPRIATE BECAUSE IT WAS UNRELATED TO THE ACTUAL
MANAGEMENT OF PARTICULAR AIR TRAFFIC. HE WAS ALSO CONCERNED ABOUT, AND
DISPUTED WITH DUPATY THE QUESTION WHETHER THE LATTER WAS RELIEVED OF
RESPONSIBILITY FOR AN ENTIRE SHIFT WHEN HE INVOKED THE ARTICLE. ASIDE
FORM THIS UNDERSTANDABLE DISPUTE, THERE IS, AS NOTED, SIMPLY NO EVIDENCE
THAT FRAME EVER INDICATED A DISPOSITION TO PUNISH DUPATY FOR SUCH
REASON. THERE IS, ON THE OTHER HAND, AMPLE EVIDENCE THAT DUPATY
RESISTED JOB ASSIGNMENTS TO THE POINT OF NOT PROMPTLY OBEYING ORDERS.
THERE IS ALSO HIS OWN STATEMENT THAT HE DID NOT RELIEVE CONTROLLERS IN
ORDER, BUT WOULD RUN DOWN THE LIST UNTIL HE FOUND AN ACCEPTABLE
(NON-COMBINED) POSITION. CLEARLY, A BASIS EXISTED FOR DESCRIBING AS
SELF-ORIENTED AND UNCOOPERATIVE A CONTROLLER WHO CHALLENGED
MANAGEMENT'S
RIGHT TO ASSIGN HIM COMBINED POSITIONS AS OUTSIDE HIS JOB DESCRIPTION,
WHO QUIBBLED ABOUT THE DIFFERENCE BETWEEN A SUPERVISOR'S INSTRUCTION AND
HIS ORDER, AND WHO DELAYED COMPLIANCE WITH INSTRUCTIONS. SUCH A PERSON
COULD BE APTLY DESCRIBED AS LACKING APPRECIATION FOR THE "IMMENSE
PROBLEMS" FACED BY HIS SUPERIORS IN RUNNING THE FACILITY. THE QUESTIONS
REMAINS WHETHER, ON THIS RECORD, IT IS FAIR TO CONCLUDE THAT THESE
CHARACTERIZATION OF DUPATY WERE ALSO MOTIVATED BY THIS PERSISTENCE IN
INVOKING ARTICLE 55 AND IN FILING UCRS. NO LANGUAGE IS ENTIRELY FREE
FROM AMBIGUITY AND THE NARRATIVE OF FRAME'S EVALUATION OF DUPATY IS
CERTAINLY OPEN TO THE INTERPRETATION THAT SELF-ORIENTATION,
UNCOOPERATIVENESS AND UNAPPRECIATIVENESS ARE VEILED REFERENCES TO
ARTICLE 55 AND UCRS. GIVEN THE AMPLE BASIS FOR A LEGITIMATE CRITICISM
ON OTHER GROUNDS AND THE ABSENCE OF OTHER EVIDENCE INDICATING THAT FRAME
WAS DISPOSED TO RETALIATE AGAINST DUPATY FOR SUCH ACTIVITIES, I CONCLUDE
THAT THIS ALLEGATION IS NOT SUPPORTED BY THE EVIDENCE, AND I RECOMMEND
THAT IT BE DISMISSED. /6/
ORDER
HAVING CONCLUDED THAT THE EVIDENCE DOES NOT SUPPORT THE ALLEGATIONS
OF THE COMPLAINT, I RECOMMEND THAT IT BE DISMISSED IN ITS ENTIRETY.
JOHN H. FENTON
CHIEF ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 24, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES: ---------------
/1/ RESPONDENT CAME TO THE HEARING PREPARED TO DEFEND JUST SUCH A
"TRADITIONAL" CASE. WHILE I FOUND THE COMPLAINT ADEQUATE TO SUPPORT THE
GENERAL COUNSEL'S THEORY, AND THEREFORE OVERRULED A MOTION TO DISMISS,
SUCH GENERALIZED PLEADING OBVIOUSLY CAN BE MISLEADING.
/2/ THIS MAY HAVE GIVEN RISE TO THE FIRST CONFLICT BETWEEN DUPATY AND
FRAME. ON MAY 13 FRAME MADE A RECORD OF A CONFERENCE WITH DUPATY
CONCERNING HIS BEHAVIOR IN CONNECTION WITH SANCHEZ'S TRAINING. IT
READS: "RAN INTO CONSIDERABLE PROBLEMS WITH ED TODAY IN REGARD TO
SANCHEZ'S TRAINING. ED'S BEHAVIOR WAS COUNTERPRODUCTIVE. ACCUSED ME OF
BEING TOO HARD ON TONY. CONVERSATION TOOK PLACE IN FRONT OF CREW AND
TONY. TONY DIDN'T NEED IT, AS FAR AS HIS CONFIDENCE GOES."
/3/ DUPATY WAS ASKED WHETHER HE EVER FELT SUFFICIENTLY CURRENT IN HIS
POSITION. HE REPLIED THAT HE WILL NEVER FEEL SAFE WORKING MULTIPLE
POSITIONS. HE IS THE ONLY CONTROLLER WHO INVOKES ARTICLE 55 SIMPLY ON
THE GROUND THAT THE ASSIGNED POSITION IS NOT SAFE.
/4/ STACY'S AND DUPATY'S VERSION BEGIN TO DIFFER AT THIS POINT.
STACY REPORTED THAT DUPATY REFUSED HIS ORDER TO RELIEVE GADDIE, THAT HE
THEN GAVE DUPATY A DIRECT ORDER TO RELIEVE GADDIE, AND DUPATY REFUSED,
STATING THAT HE NEEDED A REASON FOR BEING ORDERED TO RELIEVE GADDIE.
STACY TOLD DUPATY HE WAS TO RELIEVE GADDIE BECAUSE HE TOLD HIM TO, AND
REPORTED THAT DUPATY PLUGGED IN AND ASSUMED THE SECTOR AFTER GIVING
GADDIE A HARD TIME DURING THE BRIEFING. UNDER EITHER VERSION THERE WAS
NOT PROMPT COMPLIANCE WITH STACY'S ORDERS.
/5/ THERE WAS AN ASSISTANT CONTROLLER ON THAT DAY.
/6/ I THEREFORE NEED NOT DISPOSE OF THE HIGHLY QUESTIONABLE
PROPOSITIONS THAT FILING UCRS PURSUANT TO AN FAA PROGRAM DESIGNED TO
ENSURE THE SAFETY OF THE FLYING PUBLIC, OR ENFORCING A CONTRACT RIGHT IN
THESE PARTICULAR CIRCUMSTANCES CONSTITUTE ACTIVITY PROTECTED BY THE
STATUTE AS A FORM OF UNION MEMBERSHIP OR OF ASSISTANCE TO A UNION.