[ v14 p82 ]
14:0082(19)CA
The decision of the Authority follows:
14 FLRA No. 19
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL EMPLOYEES
METAL TRADES COUNCIL
Charging Party
Case No. 3-CA-816
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations, as modified herein.
The Authority agrees with the Judge's conclusion that the Respondent
failed to comply with section 7114(a)(2)(B) of the Statute /1/ in
violation of section 7116(a)(1) and (8) of the Statute /2/ by conducting
an "examination . . . in connection with an investigation" with regard
to unit employee Crocker's refusal to sign a packing slip under
circumstances where Crocker reasonably believed that disciplinary action
might be taken against her and in the absence of her requested Union
representative. While Crocker did not specifically request the presence
of her Union representative at the beginning of that interview, which
was with her third level supervisor, the Authority finds, in agreement
with the Judge, that she had asked her immediate supervisor for such
Union representation on several occasions just prior thereto, and that
inasmuch as her immediate supervisor also attended the meeting, it was
not necessary for her to repeat the request. /3/
However, the Authority disagrees with certain portions of the Judge's
recommended remedy.
As found by the Judge, the Respondent told Crocker to go home and
placed her on "Z" leave (i.e., leave without pay for refusing to perform
duty) at the conclusion of the November 29 meeting concerning her
refusal to follow a supervisor's directive to sign the packing slip.
Crocker neither reported for work nor called in to request leave on the
next two work days (November 30 and December 3), and, consistent with
established policy, she was placed on "Z" leave for those days. Upon
her return to work on December 4, Crocker, this time in the presence of
her Union representative, was again directed to sign the packing slips
by her third level supervisor; she again refused to do so, and was
again put on "Z" leave. On December 5, Crocker was advised that an
investigation was being conducted regarding her "refusal to sign the
slips" and her "unauthorized absence" for two days, and was given the
opportunity to submit any statement she wished as part of the
investigation. In the presence of her Union representative, Crocker
then gave a detailed statement raising most of the points she had tried
to make at the November 29 meeting. The following day, Crocker was
advised in the presence of her Union representative that disciplinary
action was being considered, and on January 11 she received notice of
her proposed five-day suspension without pay which went into effect on
February 2.
The Judge specifically recommended that the Respondent be ordered to
restore Crocker's wages and benefits lost by reason of her being placed
on "Z" leave on November 29 and 30 and December 3 and 4; to rescind
Crocker's five-day suspension effective February 2 and to make her whole
for all wages lost as a result thereof; and to expunge from its
personnel records any references to her refusal to accept directions and
unauthorized absences on the foregoing dates and to her resulting
suspension. While the Authority agrees with the Judge's conclusion that
Crocker's loss of pay on November 29 was directly related to the
Respondent's denial of her request for Union representation that morning
and that Crocker therefore should be made whole to that extent, we
further find, in disagreement with the Judge, that Crocker should not be
recompensed for the two days when she neither reported to work nor
called in to request leave. In this regard, the Authority notes that
Crocker's failure to call in was contrary to the explicit requirements
of Respondent's established policy to place employees on "Z" leave under
such circumstances. Moreover, the Authority further notes that
Crocker's Union representative was present at the second meeting on
December 4, at which time she again refused to sign the packing slips,
as well as at the investigatory meetings on December 5 and 6; that
Crocker was given an opportunity to make any statement she wished as a
part of the investigation regarding her refusal to sign the packing
slips and her unauthorized absences on November 30 and December 3; and
that Crocker submitted a detailed statement during the investigation in
the presence and with the assistance of her Union representative. In
other words, while the Respondent violated section 7116(a)(1) and (8) by
its conduct at the November 29 meeting, the disciplinary action taken
against employee Crocker was not based upon that single interview.
Rather, such action followed further investigations at which Crocker was
accompanied by her Union representative but again refused to obey a
lawful management directive, and at which Crocker gave a complete
explanatory statement concerning her conduct with the assistance of her
Union representative. Based on all of the foregoing, the Authority
finds that the Respondent's subsequent decision to impose a five-day
suspension should not be ordered rescinded. U.S. Department of the
Navy, U.S. Marine Corps, Marine Corps Logistics Base, Albany, Georgia, 4
FLRA 397(1980). It follows that the Respondent will not be required to
expunge all references to the events surrounding Crocker's suspension or
to make her whole for the wages lost as a result thereof.
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 Department of Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia shall:
1. Cease and desist from:
(a) Requiring any employee represented by the Tidewater Virginia
Federal Employees Metal Trades Council, the employees' exclusive
representative, to take part in an examination in connection with an
investigation without representation by the Council, if the employee
reasonably believes that the examination may result in disciplinary
action against the employee, and the employee requests representation by
the Council.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Restore to Jacqueline Crocker all wages and benefits she lost by
reason of being placed in leave-without-pay status on November 29, 1979.
(b) Post at its facilities in the Portsmouth, Virginia area copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed
by the Commander, Norfolk Naval Shipyard, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are no 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 III, 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., March 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 require any employee represented by the Tidewater
Virginia Federal Employees Metal Trades Council, the employees'
exclusive representative, to take part in an examination in connection
with an investigation without representation by the Council, if the
employee reasonably believes that the examination may result in
disciplinary action against the employee, and the employee requests
representation by the Council.
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 restore to Jacqueline Crocker all wages and benefits she lost
by reason of being placed in leave-without-pay status on November 29,
1979.
(Activity)
Dated:
By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
Charging Party
Case No. 3-CA-816
Walter B. Bagby and
Marilyn Lee Spence,
Representative for Respondent
Ronald E. Ault,
Representative for Charging Party
Susan Shinkman and
Peter A. Sutton,
Attorneys for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191(1978), 5 U.S.C. 7101 et seq. (Supp.III
1979) (hereinafter referred to as the "Statute"), and the rules and
regulations issued thereunder and published at 45 Fed.Reg. 3482 et seq.,
5 C.F.R. 2421 et seq.
Based on a Charge filed on January 1, 1980, the Regional Director of
Region III, Federal Labor Relations Authority (hereinafter, the
Authority"), issued a Complaint and Notice of Hearing dated January 28,
1981, in which it is alleged that the Norfolk Naval Shipyard
(hereinafter, "Respondent" or the "Shipyard") has violated Sections
7116(a)(1) and (8) of the Statute by its supervisors, Gene Swiney and
Robert Garner, by denying the request of its employee, Jacqueline
Crocker, to be represented by the Charging Party (hereinafter referred
to as the "Union") during an interview which she reasonably believed
would result in disciplinary action, thereby interfering with rights
protected by Section 7114(a)(2)(B) of the Statute. /4/
A hearing on the matter was held on March 25, 1981, at Norfolk, VA.
The parties appeared, adduced evidence, and examined and cross-examined
witnesses. Briefs were filed by the General Counsel, on May 15, and by
Respondent, on May 13. Based on the record made at the hearing, my
observation of the demeanor of the witnesses, and the briefs, I make the
following findings, conclusions, and recommended order.
Findings /5/
1. The Norfolk Naval Shipyard is an "agency" and the Union is a
"labor organization," within the meaning of Sections 7103(a)(3) and (4)
of the Statute. The Union is recognized as the exclusive bargaining
agent for many of the graded and ungraded employees in the Shipyard,
including Jacqueline Crocker. The Authority has jurisdiction in this
matter pursuant to Section 7118 of the Statute.
2. Shop 6, among other things, maintains industrial respirators for
use by Shipyard personnel. During the summer of 1979, Shop 6 instituted
a requirement that employees initial a packing slip certifying the
respirators were not defective, after refurbishing them. Employees
handling the respirators attend classes conducted by hygienists, and are
told to go to the hygienist if problems arise. They also attend
"malpractice" classes where they are told not to falsify records. (Tr.
16). On November 28, 1979, a group of employees were assigned to put
filters onto a recently received shipment of new respirators. One of
this group was Jacqueline Crocker, a WG5 employee paid $5.75 an hour.
She questioned her team leader, Frank James, about initialing a packing
slip on the new respirators. She was hesitant to certify a new
respirator because she was unaware of what the manufacturer may have
done to them that might not be proper. Mr. James advised her that he
would take up the matter with the shop foreman, Robert Garner, the
following day.
3. On November 29, 1979, at the beginning of the day shift, at 7:30
a.m., Ms. Crocker was informed by Mr. James that her supervisor, Robert
Garner, wanted to see her at his desk, on the shop floor. Together,
they went out to Mr. Garner's desk. Mr. Garner asked what the problem
was. Ms. Crocker told him about her anxieties over certifying new
respirators coming from the manufacturer, with no way of telling with
what kind of chemicals they had been treated. Mr. Garner ordered her to
sign the packing slips. She refused. Mr. Garner called Gene Swiney,
the production superintendent, reported the problem, and was told to
repeat the order in front of the general foreman. Mr. Garner left his
desk and returned within minutes, with Claude Stitts, acting quarterman.
4. Mr. Stitts asked her what was the problem. During this
interview, that lasted approximately two minutes, Ms. Crocker requested
a written procedure explaining the correct methods to follow in handling
new respirators. She recalls also that she explained her fear of
signing the slips-- that she has a discrimination suit pending,
involving a forgery of her name, and that her lawyer had advised her to
be careful of signing anything. In response, Mr. Stitts showed her her
job description. She again refused an order by Mr. Garner, in the
presence of Mr. Stitts, to sign the slips. Mr. Stitts then directed Mr.
Garner to call Mr. Swiney. Ms. Crocker recalled asking for a Union
steward, at this point, and receiving no response. Mr. Stitts denies
that Ms. Crocker asked for a Union steward in his presence. Mr. Garner
does not recall her asking for a Union steward until later, on their
walk over to see Mr. Swiney. In a statement given later in the day to
the Union President, Ronald Ault, Ms. Crocker stated that she had
requested a Union steward of Mr. Garner and Mr. Stitts and that they did
not comply. See GC 4. Ms. Crocker withstood extensive
cross-examination, gave basically consistent testimony, and delivered it
in forthright and sincere manner. I credit her recollection that she
asked for a Union steward sometime during her shop-floor conversation.
5. Mr. Stitts and Mr. Garner retired to Mr. Stitts' office and,
shortly thereafter, Mr. Garner returned by himself and ordered Ms.
Crocker to accompany him to Mr. Swiney's office, which was located in
Building 298, about a five-minute walk away.
6. As Mr. Garner and Ms. Crocker walked out of Shop 6, Ms. Crocker
attempted to attract the attention of the shop steward by falling behind
Mr. Garner, waving towards his work site, and calling out to him. The
shop was noisy, and she did not succeed. Mr. Garner, upon spotting Ms.
Crocker's actions, threatened to secure a security guard escort out of
the building. Sometime after the Stitts-Garner meeting and the
commencement of the interview with Mr. Swiney, Ms. Crocker again asked
Mr. Garner for a Union representative, and he told her she could get one
later. Mr. Garner's first recollection of her requesting a Union
representative was on their walk over to Mr. Swiney's office. See TR
116.
7. Upon arrival at Building 298, Mr. Garner entered the office of
Margie Thomas, administrative officer, and instructed Ms. Crocker to
wait outside. After several minutes, at approximately 8:45 a.m., Ms.
Crocker was called into Ms. Thomas' office. Awaiting her were Ms.
Thomas, Mr. Garner, and Mr. Swiney. The meeting was held in the office
of Ms. Thomas because another meeting was going on, in Mr. Swiney's
office, and the office of Ms. Thomas was close by. Ms. Crocker, Mr.
Garner, and Mr. Swiney all testified to what transpired at the meeting.
Ms. Thomas did not. She was on leave, in Florida. In addition, Mr.
Swiney had a written summary of the meeting prepared and signed by him
within 10 minutes of the conclusion of the meeting. Ms. Thomas and Mr.
Garner also signed it. Mr. Garner and Mr. Swiney attested to its
accuracy; and it was received into evidence as Respondent's Exhibit 3.
Mr. Swiney does not usually have written summaries prepared of short
meetings. This one lasted no more than three minutes. Mr. Swiney did
so, as to this meeting, because Ms. Crocker had, on a previous occasion,
refused a direct order and been disciplined; and he realized the need
to have an accurate account of what transpired.
a. It is undisputed that the meeting began by Mr. Swiney asking what
had happened, or what was the problem. Mr. Garner testified that Mr.
Swiney asked him; Ms. Crocker, that he asked her. See TR 23 and 103.
Mr. Swiney did not testify as to this point; and the written summary
does not specify how the meeting began. Since Mr. Garner and Mr. Swiney
had already conferred twice, by telephone, over Ms. Crocker's refusals
to obey a direct order of Mr. Garner, it is unlikely that he needed to
hear, again, from Mr. Garner as to what happened. I credit Ms.
Crocker's testimony that Mr. Swiney asked her what was the problem.
b. It is also undisputed that Mr. Swiney ordered Ms. Crocker to sign
the slips; that she responded she would not sign unless she was given a
written order; that Mr. Swiney asked whether she was refusing to sign
the slips; that she responded she was, unless she got a written order;
that Mr. Swiney stated that she would not get a written order that
signing the slip was part of her job, and that an oral order was all
that was necessary; that Ms. Crocker then stated that she would not
accept the order unless her Union steward or her lawyer was present;
and that her refusal to perform properly assigned duties subjected her
to disciplinary action.
c. It is also undisputed that Mr. Swiney concluded the meeting by
instructing Mr. Garner to put Ms. Crocker on Z leave /6/ and to be sure
that she left the Shipyard, and by instructing Ms. Crocker to report to
his office the next morning at 7:30 a.m.
d. It is undisputed that Mr. Garner had the authority to direct Ms.
Crocker to sign the slips and to put her on Z leave for refusing. Mr.
Swiney testified that he ordered Mr. Garner to bring Ms. Crocker to see
him because he could not believe she would refuse a direct order from
her production superintendent.
e. In addition, Ms. Crocker recalls Mr. Swiney asking her about her
training on the respirators and her telling Mr. Swiney that the
hygienist, not him, was the one with authority to issue orders on the
respirators. She also recalls Ms. Thomas asking her why she would not
sign, and her telling Ms. Thomas that her lawyer had advised her to be
careful of what she signed. Mr. Swiney and Mr. Garner did not
specifically deny her statements on these points, although they did not
include them in their testimony about the meeting. Nor does the written
summary make any reference to them either. The written summary,
however, is not a verbatim account of what went on at the meeting. For
example, it does not include an account of how the meeting opened. Ms.
Crocker was a credible witness, as found in finding 4, above; and I
credit her testimony on these points.
f. Ms. Crocker, in testifying about the Swiney interview, refers to
asking for a Union steward as follows:
A. And I asked again for a couple of times, asked for a Union
steward.
Q. Who did you ask for a Union steward?
A. Mr. Swiney. And he told me-- Mr. Garner to put me on Z
leave the third time I asked for the Union steward.
(TR. 24). Mr. Garner did not mention her asking for a Union steward, in
his testimony about the Swiney meeting. Mr. Swiney testified that she
never really asked for Union representation," but stated instead: "I
will not accept that order unless my Union steward or my lawyer is
here." (TR 23). In the written statement which Ms. Crocker signed
before her Union President, shortly following the Swiney interview, Ms.
Crocker makes no mention of asking for a Union steward three times at
the Swiney interview, but just that: "I refused to answer any question
without my union steward . . ." (cg 4). Based on these facts, I find
that Ms. Crocker only alluded to a Union steward once, at the Swiney
interview; and that Mr. Swiney then directed that she be put on Z leave
and terminated the interview.
8. Upon leaving Ms. Thomas' office, Ms. Crocker visited the Union
office located inside the Shipyard and gave a statement to Ronald Ault,
Union President. It reads as follows:
This morning at 0850 hrs., I was placed in a Z leave status by
Mr. Robert Garner, shop 06 supervisor. I requested my Union
steward & Mr. Stitts, Acting Quarterman, & Mr. Garner did not
comply with my request. Mr. Garner told me "You don't need one,
get one later."
I requested a procedure (sic) to go by (written) to change
filters & pack respirators. Mr. Garner told me to come & go to
Bldg. 298 Mr. Swiney's office.
When we went to Bldg. 298 & was questioned by Mr. Garner, Ms.
Thomas, & Mr. Swiney. I refused to answer any questions without
my union steward, & Mr. Swiney told me "you are Z'ed out for the
rest of the day be in my office at 7:20 tomorrow morning. If you
change your mind you have a job, if you don't, you won't."
See GC 4.
9. Ms. Crocker was placed on Z leave, for November 29, 1979, and was
not paid for that day.
10. Ms. Crocker returned to work on December 4, 1979, after
consulting with the NAACP and her personal lawyer. It is the policy, in
Shop 6, to put an employee on Z leave, if they call in to report that,
for some reason, they cannot get to work. She did not call in, on
November 30 or December 3, 1979; and she was put on Z leave for those
days. Upon her return, Mr. Swiney, in the presence of Ron Gardner, Ms.
Crocker's Union steward, again repeated his order to sign the slips.
She again refused. She was told to leave the Shipyard and was again put
on Z leave.
11. On December 5, 1979, Ms. Crocker returned to work and was
advised that a preaction investigation was being conducted of her
"refusal to sign the slips" and "unauthorized absence" for two days (TR
64); and she was advised that she "might make any statement (she)
wished as a part of the investigation." (GC 2.2). She gave a detailed
statement, touching on most of the points she had tried to make during
the November 29 episode. Her Union representative was present when she
gave her statement. Mr. Swiney again directed her to sign the slips
and, after a discussion with her Union steward, she agreed to do so.
12. On December 6, 1979, in the presence of her Union steward, a
discussion was held by management with Ms. Crocker about the findings of
the preaction investigation. She as advised that disciplinary action
was being considered and given an opportunity to make "any statement
regarding the specific allegation of deliberate refusal to carry out a
proper order by a supervisor and unauthorized absence." (GC 2.2).
13. On January 11, 1980, Ms. Crocker was sent a Notice of proposed
suspension, which included an account of the November 29, 1979, episode,
including the answers she gave to questions posed by her supervisor and
her disagreements with him and Mr. Swiney over signing the slips. See
GC 2.
14. On February 2, 1980, Ms. Crocker was suspended, without pay, for
five days, "for deliberate refusal to carry out a proper order by a
supervisor, on 29 November and 4 December 1979, first offense." (GC 3).
The suspension order was signed by Mr. Swiney.
DISCUSSION AND CONCLUSIONS
It is the position of the General Counsel that the Swiney interview
of Ms. Crocker constituted the Section 7114(a)(2)(B) violation alleged
in the Complaint. See GCBr 5. Respondent argues that the Swiney
interview was not investigatory in nature, and thus was not an
"examination" in the dictionary and statutory sense of the word. See
RBr 4-6. This defense calls for a consideration of the parameters of
the so-called Weingarten rule, developed for private-sector labor
relations and basically adopted by Congress for application to
Federal-sector labor relations, in Section 7114(a)(2)(B) of the Statute.
See pages 644, 651, 824, and 926 of the Legislative History of the
Federal Service Labor-Management Relations Statute, Title VII of the
Civil Service Reform Act of 1978, 96th Congress, 1st Session, Committee
Print No. 96-7 (November 19, 1979), and page 10 of Judge Salvatore
Arrigo's decision in Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Hartford District Office, affirmed by the
Authority at 4 FLRA No. 37(9/26/80).
In NLRB v. Weingarten, Inc., 420 U.S. 251(1975) the Supreme Court
held that Section 7 of the National Labor Relations Act "guarantees an
employee's right to the presence of a Union representative at an
investigatory interview in which the risk of discipline reasonably
inheres." Id. at 262. /7/ The courts have applied Weingarten to
situations "where the interview in question is designed to elicit
answers to work-related questions that might affect the employee or the
bargaining unit." See Lennox Industries Inc. v. NLRB, 637 F.2d 340, 343
(C.A. 5, 1981) and cases cited therein. They have not applied the rule
"where the purpose of a meeting is disciplinary rather than
investigatory, i.e. where the meeting is designed simply to inform an
employee of a previously made decision to impose discipline," and "there
is no attempt to elicit facts that might result in discipline," and
"where the meeting is supervisory rather than investigatory, e.g., where
the meeting is designed simply to show an employee how to improve his
work performance." Lennox, id. at 343-344.
The question here is whether the Swiney meeting was simply
supervisory in nature, to give a direction to an employee, or designed
to elicit answers to work-related questions. The preponderance of the
evidence indicates that it was the latter which was intended. Ms.
Crocker had already twice refused the same direction given to her at the
Swiney interview. These directions had come from her immediate
supervisor, who had the authority to give the directions and to put her
on leave without pay status for refusing them. It is therefore unlikely
that Mr. Swiney, the third-line supervisor, who was aware of these
facts, would order the first-line supervisor, Mr. Garner, and the
recalcitrant worker, Ms. Crocker, over to his office, some distance away
in another building, interrupt a meeting in his office, and take the
time to do merely what his subordinate had the authority to do, and had
done.
Mr. Swiney did not simply order Ms. Crocker to sign the slips. He
opened the meeting with a question-- what was the problem? Thus the
investigative nature of the interview was established. Ms. Crocker
attempted to explain her fears of signing slips and thereby certifying,
as fit, respirators which she, herself, did not know were fit. She
attempted to justify her refusals to sign them on the grounds that only
the hygienists had such authority, and her lawyer had cautioned her
about signing her name. Obviously, her attempts were inadequate and her
knowledge, incomplete, since her first-line supervisor did have
authority to direct her to sign the slips. This was the point where she
needed the Union representation she had already sought, most recently
from her supervisor on their walk, together, over to see Mr. Swiney, a
walk which preceded the Swiney interview by only a few minutes. At the
time the Swiney questioning began, at 8:30 a.m. on November 29, Ms.
Crocker had been in a continuous confrontation with her first and
second-level supervisors over the refusal to sign the slips. From her
past experience, she knew this refusal could lead to discipline. Her
first-line supervisor had threatened her with a security guard escort
out of her work area, an obviously hostile act. At the Swiney interview
she was outnumbered three to one, one of the three being her first-line
supervisor who was paying no heed to her request for Union assistance.
Had a Union steward been called in, at this point, he might have been
better able to articulate the concerns of Ms. Crocker, and even
persuaded her to accept the order, which she eventually did, after Union
representation was afforded her. Instead, a high-level management
official became locked into a contest of wills with a WG5 worker,
probably one of the lowest-paid in the Shipyard, failed to recognize her
legitimate concerns, made no attempt to assuage them, and insisted
instead on his right to give her an order.
The situation at the Swiney interview fits the Weingarten mold a
"fearful," "inarticulate," "ignorant" employee, in need of a
"knowledgeable Union representative," at "an investigatory interview."
420 U.S.at 262, 263.
Respondent has a second argument, grounded on its view that giving a
direction and assigning work is a management right, set forth in Section
7106(a) of the Statute, which is immunized from representation rights
set forth in Section 7114(a)(2)(B). See RBr 6-9. Respondent relies on
the following portion of Section 7106:
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(2) in accordance with applicable laws--
(A) to hire, assign, direct . . . employees in the agency . . .
(b) to assign work, . . . and to determine the personnel by
which agency operations are to be conducted.
Respondent also cites legislative history that Section 7106 incorporates
the admonition, in Weingarten, that the "exercise of the right (of an
employee to Union representation during an investigatory examination in
which the risk of discipline reasonably inheres) may not interfere with
legitimate employer prerogatives." (RBr. 8-9).
The "prerogatives" of management, however, do not include
continuation of a Weingarten-type interview after a request for Union
representation is made. Management's prerogatives are to grant the
employee's request; or suspend the interview; or give the employee the
choice of having an interview unaccompanied by his or her
representative, or having no interview and forgoing any benefits that
might be derived from one. See Weingarten, 420 at 258. Management need
not bargain with the Union representative. Weingarten, 420 U.S. at 259,
260. The Union representation is there only to reinforce a "lone
employee," fearful of the imposition of discipline. Id. at 262.
Management remains free to assign and direct its employees.
To establish a Section 7114(a)(2)(B) case, the General Counsel must
also show, by a preponderance of the evidence, that Ms. Crocker had a
reasonable belief that the interview might result in disciplinary action
against her. She clearly had reason to believe this-- from her past
experience, when she was disciplined for refusing to obey a direct
order, and from the stipulated fact that refusal to obey a direct order
from her supervisor subjects an employee to appropriate disciplinary
action.
Finally, the General Counsel must establish that the examination
continued after Ms. Crocker had requested and been denied Union
representation. I have found that Ms. Crocker did not repeat her
request for Union representation to Mr. Swiney, at the start of the
interview, and that he concluded it after she indicated that she would
not accept the order without the presence of her Union steward or her
lawyer. See finding 7(f), above. However, I subscribe to the line of
cases which hold that "(a)s long as one or more company officials are
aware of the employee's desire and request for the presence of a Union
representative, a single request will suffice . . . for multiple
meetings which are part of a 'single, interrelated episode,' as here."
See Lennox Industries, Inc. v. NLRB, 637 F.2d at 345 and page 11 of the
decision of Judge Louis Scalzo in Lackland Air Force Base Exchange,
Lackland Air Force Base, Texas, affirmed by the Authority at 5 FLRA No.
11.
The episode here began at the start of the workday, 7:30 a.m. and
concluded at 8:45 a.m., with Mr. Garner and Ms. Crocker in continuous
confrontation with each other over the subject of signing the slips.
Mr. Garner acknowledged hearing Ms. Crocker's request for a Union
steward, on the way over to Mr. Swiney's office. His response was that
she could get one later. He was in attendance all during the Swiney
interview. Requiring an employee to repeat requests for Union
representation during a "single, interrelated episode," as here, would
be "both burdensome for the employee and tedious for company officials."
Lennox, 637 F.2d at 345. Ms. Crocker's prior requests for Union
assistance were still operative when she underwent questioning by Mr.
Swiney.
Thus, the General Counsel has proved that Respondent's failure to
accord Union representation during the Swiney interview interfered with
rights guaranteed in Section 7114(a)(2)(B) of the Statute and
constituted a failure to comply with it.
The remedy
The General Counsel seeks a remedial order which orders a return to
the "status quo ante." (GCBr 10). Specifically, the General Counsel
seeks an order which requires Respondent to: (1) make whole Ms. Crocker
for all wages lost as a result of being placed on "Z" leave for November
29, 1979; (2) rescind the five-day suspension of Ms. Crocker effective
February 2, 1980 and make whole Ms. Crocker for all wages lost as a
result of said five-day suspension; and (3) expunge from its records
all disciplinary and other related documents concerning the November 29,
1979, examination of Ms. Crocker.
Respondent posits that any violation which occurred was remedied by
its conducting a reinvestigation where Union representation was
afforded, before it imposed discipline upon Ms. Crocker, and notes that
this had been one of the bases upon which the Regional Director had
originally declined to issue a complaint in this proceeding. See RBr 8
and R 1.
In another case, the Authority declined to order a status quo ante
remedy for a Section 7114(a)(2)(B) violation, where the agency had
imposed a five-day suspension for alleged refusal to do assigned work,
later rescinded it, and then conducted a second interview where Union
representation was afforded before finally imposing discipline. See
U.S. Department of Navy, U.S. Marine Corps, Marine Corps Logistics Base,
Albany, GA, 4 FLRA No. 54(1980). Judge Naimark reasoned that a
make-whole remedy was impractical because the agency had started the
process anew, with Union representation present to speak on behalf of
the employee.
Here, however, nothing was corrected following the illegal interview
on November 29. The Notice of proposed suspension, dated January 11,
1980, and given to Ms. Crocker, justifies the action, in part, by
references to the events of November 29, including the answers given by
Ms. Crocker to questions and Ms. Crocker's disagreements with her
supervisors expressed in the course of the November 29 episode. See GC
2. Thus, the investigation conducted by Respondent, following the
illegal interview, was tainted by it, to some indeterminable extent.
The entire situation could very possibly have been averted, had Union
representation been given when it was first sought. After her Union
steward had an opportunity to discuss the matter with Ms. Crocker, she
did agree to sign the slips. Part of the reason for her being away, on
November 30 and December 3, was to consult with her lawyer, without
whose presence, or that of her Union steward, she had, initially
declined, to agree to sign the slips.
Thus, the remedy sought by the General Counsel is appropriate and
will be recommended for imposition.
Ultimate Findings and Order
Respondent has engaged in unfair labor practices, under Sections
7116(a)(1) and (8) of the Statute.
Pursuant to Section 7118(a)(7) of the Statute, 5 U.S.C. 7118(a)(7)
and Section 2423.29(b) of the Rules and Regulations of the Authority, 5
CFR 2423.29(b), the Authority hereby orders that Respondent shall:
1. Cease and desist from:
(a) Requiring any employee represented by the Tidewater
Virginia Federal Employees Metal Trades Council, to take part in
an examination in connection with an investigation without
representation by the Council, if the employee reasonably believes
that the examination may result in disciplinary action against the
employee, and the employee requests representation by the Council.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed by the Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Restore to Jacqueline Crocker all wages and benefits she
lost by reason of her suspension and being placed on
leave-without-pay status for failures to accept directions and
unauthorized absences on November 29 and 30, and December 3 and 4,
1980.
(b) Expunge from her personnel records any reference to her
refusals to accept directions and unauthorized absences on
November 29, November 30, December 3, and December 4, 1980, and
her resulting suspension for same.
(c) Post, at its facilities, copies of the attached notice
marked Appendix A, on forms to be furnished by this Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer of the Norfolk Naval Shipyard and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where
notices are customarily placed. Reasonable steps shall be taken
to ensure that said notice are not altered, defaced, or covered by
any other material.
(d) Notify this Authority, in writing, within 30 days from the
date of this Order as to what steps have been taken to comply
herewith.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: August 28, 1981
Washington, DC
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT require any employee represented by the Tidewater
Virginia Federal Employees Metal Trades Council to take part in an
examination in connection with an investigation, without representation
by the Council, if the employee reasonably believes that the examination
may result in disciplinary action against the employee, and the employee
requests representation by the Council.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL restore to Jacqueline Crocker all wages and benefits lost by
reason of her suspension and being placed on leave-without-pay status
for failures to accept directions and unauthorized absences on November
29 and 30, and December 3 and 4, 1980.
WE WILL expunge from her personnel records any reference to her
refusals to accept directions and unauthorized absences on November 29
and 30, and December 3 and 4, 1980, and her resulting suspension for
same.
(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 of the Federal Labor Relations Authority, Region III,
whose address is: 1133 15th Street, NW., Room 300, Washington, DC 20005
and whose telephone number is (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(a)(2)(B) provides:
Sec. 7114. Representation rights and duties
(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
* * * *
(B) any examination of an employee in the unit by a
representative of the agency in connection with an investigation
if--
(i) the employee reasonably believes that the examination may
result in disciplinary action against the employee; and
(ii) the employee requests representation.
/2/ Section 7116(a)(1) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter(.)
/3/ Compare United States Air Force, 2750th Air Base Wing
Headquarters, Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 10 FLRA No. 23(1982), wherein the Authority concluded that a
second meeting with an employee approximately 10 days after an initial
"examination . . . in connection with an investigation" within the
meaning of section 7114(a)(2)(B), which had been suspended after the
employee requested her union representative, was not a continuation of
the first.
/4/ Section 7116(a) of the Statute provides that: "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; . . . (8) to otherwise fail or refuse to comply
with any provision of this chapter."
Section 7114(a)(2) provides that: "An exclusive representative of an
appropriate unit in an agency shall be given the opportunity to be
represented at - . . . (B) any examination of an employee in the unit by
a representative of the agency in connection with an investigation if -
(i) the employee reasonably believes that the examination may result in
disciplinary action against the employee; and (ii) the employee
requests representation."
/5/ Abbreviations used in these findings are as follows: "GC" refers
to the exhibits of the General Counsel and "R" to those of Respondent,
with multipage exhibits referenced by the exhibit number, followed by
the page number. "GCBr" refers to the brief of the General Counsel.
"RBr" refers to the brief of Respondent. "TR" refers to the transcript.
The General Counsel's unopposed Motion to Correct Transcript is
granted; and the corrections made as set forth in Appendix A. One
additional correction is also authorized, on page 54, as shown in the
Appendix.
/6/ "Z" leave is leave without pay. It is defined, in Shipyard
instructions, to mean a refusal to perform duty.
/7/ The interview in Weingarten involved a retail store clerk being
questioned by a store security agent, in the presence of the store
manager, concerning a report that the employee had purchased a box of
chicken for $2.98, but had placed only $1.00 in the cash register.