[ v21 p792 ]
21:0792(99)CA
The decision of the Authority follows:
21 FLRA No. 99
U.S. NAVAL SUPPLY CENTER
SAN DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1399, AFL-CIO
Charging Party
Case Nos. 8-CA-50008
8-CA-50064
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceding, finding that the U.S. Naval Supply Center, San
Diego, California (Respondent), had engaged in certain of the unfair
labor practices alleged in the complaint, and recommending that it be
ordered to cease and desist therefrom and take certain affirmative
action. The Judge further found that the Respondent had not engaged in
other alleged unfair labor practices and recommended that the complaint
be dismissed with respect to such allegations. Thereafter, the
Respondent filed exceptions to the Judge's Decision and the General
Counsel filed an opposition to the Respondent's exceptions. /1/
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 recommended Order.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is hereby ordered that the U.S. Naval Supply Center, San
Diego, California shall:
1. Cease and desist from:
(a) Interfering with the protected rights of Chief Steward Larry
Cooper, or any other employee, by making threats or statements that
previously filed unfair labor practice charges are worthless and that
there will be repercussions for filing such charges.
(b) Interfering with the right to engage in activity protected by the
Statute by telling Chief Steward Larry Cooper, or any other employee,
that union activities are not desired at this Activity.
(c) Engaging in a campaign of harassment against Chief Steward Larry
Cooper, or any other employee, by, among other things, monitoring his
activities and ridiculing him because of his involvement in union
activities.
(d) Discriminating against Chief Steward Larry Cooper, or any other
employee, because of his participation in protected activity, by
charging him with AWOL.
(e) 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) Pay Chief Steward Larry Cooper for the time he was charged with
AWOL on November 19, 1984, and remove the notation of the AWOL charge
from his record.
(b) Post at its facilities copies of the attached Notice, on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Commanding Officer, or a
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 ensure that such 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 with it.
IT IS FURTHER ORDERED that Paragraph 9 of the consolidated complaint
pertaining to statements made during separate telephone incidents be,
and it hereby is, dismissed.
Issued, Washington, D.C., May 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ 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 interfere with the protected rights of Chief Steward
Larry Cooper, or any other employee, by making threats or statements
that previously filed unfair labor practice charges are worthless and
that there will be repercussions for filing such charges.
WE WILL NOT interfere with the right to engage in activity protected
by the Statute by telling Chief Steward Larry Cooper, or any other
employee, that union activities are not desired at this Activity.
WE WILL NOT engage in a campaign of harassment against Chief Steward
Larry Cooper, or any other employee, by, among other things, monitoring
his activities and ridiculing him, because of his involvement in Union
activities.
WE WILL NOT discriminate against Chief Steward, Larry Cooper, or any
other employee, because of their participation in protected activity by
charging them with AWOL.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL pay Chief Steward Larry Cooper for the time he was charged
with AWOL on November 19, 1984, and remove the notation of the AWOL
charge from his record.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 8-CA-50008
8-CA-50064
U.S. NAVAL SUPPLY CENTER
SAN DIEGO, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1399,
AFL-CIO
Charging Party
Hans Von Nostitz, Esquire
Alfred M. Jackson, Esquire
For the Respondent
Jonathan S. Levine, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /2/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns the Chief Steward
having been charged three hours AWOL, alleged to have been in violation
of Section 16(a)(2) of the Statute, and various acts of alleged
harassment against the Chief Steward, asserted to have been in violation
of Section 16(a)(1) of the Statute. Case No. 8-CA-50008 was initiated
by a charge filed on October 4, 1984 (G.C. Exh. 1(a)). A Complaint in
Case No. 8-CA-50008 issued on December 31, 1984 (G.C. Exh. 1(b)) and
hearing was set for February 11, 1985. By Order dated February 7, 1985
(G.C. Exh. 1(e)) the hearing in Case No. 8-CA-50008 was rescheduled for
April 16, 1985. Case No. 8-CA-50064 was initiated by a charge filed on
November 15, 1984 (G.C. Exh. 1(f)). On March 29, 1985, an Order
Consolidating Case Nos. 8-CA-50008 and 8-CA-50064, the Consolidated
Amended Complaint and Amended Notice of Hearing issued (G.C. Exh. 1(g));
hearing was set for June 10, 1985; and pursuant thereto a hearing was
duly held on June 10, 1085, in San Diego, California, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved and were afforded the opportunity to present oral argument
which each party waived. At the close of the hearing, July 10, 1985,
was fixed as the date for mailing post-hearing briefs, which time was
subsequently extended, upon timely motion of the General Counsel, to
which the other parties did not object, for good cause shown, to August
8, 1985, and each party has timely mailed an excellent brief, received
on, or before August 8, 1985, which have been carefully considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings and
conclusions:
Findings
1. Mr. Larry Cooper has been employed as a warehouse worker at the
Naval Supply Center since 1971 or 1972 (Tr. 14, 31). He has been Chief
Steward for American Federation of Government Employees, Local 1399,
AFL-CIO (hereinafter referred to as the "Union") for the last three
years for a unit of about 1,500 employees (Tr. 14, 15) and prior to that
had been a steward for about three and one-half years (Tr. 14). In his
capacity as a Union official, Mr. Cooper has filed or been involved with
over a hundred grievances, has filed or has been involved with the
processing of unfair labor practice charges, and has attended
labor-management meetings (Tr. 14-15, 17, 116, 156; G.C. Exhs. 2 and
3). Mr. Cooper has carried out his job duties in an exemplary manner,
(G.C. Exhs. 4, 5, 6, 9).
2. In July, 1984, Mr. Cooper was reassigned from the Material
Accuracy Team where his first line supervisor was a Mr. Mantonana to the
first line supervision of Mr. Kenneth Adams (Tr. 20, 24-25, 139). At
that time, Mr. Adams was responsible for Buildings 68, 69, 70 and 3322
and his office was in Building 3322 (Tr. 136). Prior to becoming a
supervisor in about 1980 (Tr. 149), Mr. Adams had been an active member
of the Union, served as St Vice-President, 2nd Vice-President, and had
been a member of the Union's negotiating team when the still applicable
Agreement was negotiated in 1977 (Tr. 149, Res. Exh. 2). Mr. Cooper's
second line supervisor was Mr. Charles Lawson, General Foreman (Tr.
172).
3. In July, Mr. Cooper worked in Buildings 68 and 69. There was no
telephone in Buildings 68, 69 or 70 but there was a telephone in
Building 3322, in Mr. Adams' office, which was available to employees
(Tr. 137, 138). In fact, there was extension on the dock outside Mr.
Adams' office, to which, although locked, employees also had ready
access as the key was readily available whether Mr. Adams was present or
not (Tr. 137-138). During July 1984, Mr. Adams testified that while in
Building 70 he saw Mr. Cooper at Building 66, which is directly in front
of building 70, sitting at a desk in Building 66 using the telephone
(Tr. 140, 160). Mr. Adams stated that this was during working hours
(Tr. 140); that Mr. Cooper was out of his work area and was supposed to
be working in Building 68 (Tr. 160); and that Mr. Cooper had not
requested permission to leave the work area before using the telephone
(Tr. 140). Mr. Adams stated that he talked to Mr. Cooper and told him
he must get permission to leave the work area to use the telephone (Tr.
140). Mr. Adams further stated that he had previously informed all of
his employees, including Mr. Cooper, at daily stand-up safety meetings
of the telephone policy, namely that if they were to leave their work
site to use a telephone they must get prior approval from him to leave
the work area (Tr. 138, 139, 140).
Mr. Cooper testified that he had gone to Buildings 64 and 65 to use
the telephone (Tr. 26) and that Mr. Adams told him he had received
information that he was in another area using the telephone; that he,
Cooper, had responded that he had checked with people in the area and
had permission to use their telephone and he had done so on his own
time; that Adams said " . . . he didn't want me using no phone even on
my own time." (Tr. 27). I do not credit Mr. Cooper's testimony in this
regard and instead, credit Mr. Adams' testimony which I found far more
convincing. First, Mr. Cooper concedes that he had left his work area
during working hours without either the knowledge or permission of Mr.
Adams and, while he may have had permission from other people to use
their telephone, his response, did not address Mr. Adams' concern,
namely, leaving the work site without permission, and, although he
asserted he was on his "own time", the record does not show that Mr.
Cooper left his work site during any general break period, such as lunch
break, when Mr. Adams would have known he was not on duty time. To the
contrary, Mr. Adams credibly testified he saw Mr. Cooper using the
telephone in Building 66 during working hours. Second, if Mr. Cooper,
as Chief steward, had in fact been denied permission to use the
telephone at any time, including his "own time", it is unrealistic that
he would have dropped the matter when, as he stated, Mr. Adams made no
response as to what "am I supposed to do." (Tr. 27). Third, as the
record shows, Mr. Cooper not only knew a telephone was available in Mr.
Adams office but he made use of it. Moreover, the record shows that Mr.
Cooper continued to use telephones in other buildings (Tr. 47).
4. In October, 1984, Mr. Cooper was standing using the telephone in
Mr. Adams' office when Mr. Adams came in. Mr. Cooper stated that Mr.
Adams picked the telephone up from his desk and " . . . slammed it down"
on another desk that was adjacent (Tr. 100) and said, " . . . Cooper,
get to work" (Tr. 101) and as he, Cooper, was getting ready to hang up
said, "Don't -- don't stand over my desk." (Tr. 101).
Mr. Adams testified that when he came into his office Mr. Cooper was
using the telephone facing the desk; that when he, Adams, came in
Cooper turned his back to him; that he, Adams, asked Mr. Cooper to move
the telephone and sit in the chair; that Cooper ignored his request and
that he, Adams, got up andmoved the telephone from the desk to the
credenza and again asked Cooper to sit down; that Cooper did not sit
down but continued to talk for two to five minutes; and when Cooper
hung up, he, Adams, told Cooper it was not courteous to stand with your
posterior to someone else's face (Tr. 142). Again, I found Mr. Adams'
testimony more convincing than Mr. Cooper's and, therefore I credit Mr.
Adams' testimony; but under neither version do I find any conduct that
would be violative of the Statute.
5. In September, 1984, Mr. Cooper was temporarily detailed to work
for Mr. Albert Taylor in Building 64 for not longer than 30 days;
however, Mr. Adams continued to keep his time (Tr. 157-158) and Mr.
Lawson remained his second line supervisor. Mr. Cooper testified that
on September 24, he was in Building 64 on a forklift, looking for Mr.
Taylor to let him know he was leaving for a previously scheduled
labor-management meeting. Mr. Lawson entered the building from the
opposite direction on his bicycle, rode up to Cooper's forklift and said
"those ULPs don't mean s--t and we are going to put these size 13s up
your ass" (Tr. 33, 77, 78, 79). Mr. Cooper said he hit the brake and
asked, "What did you say?" but that Mr. Lawson just smiled and rode off
(Tr. 33). Mr. Cooper stated that he proceeded and his former
supervisor, Mr. Monty Mantonana, came around the corner and he asked him
if he had seen Mr. Taylor and Mr. Mantonana told him that Mr. Taylor was
out in the yard. Mr. Cooper parked his forklift and started walking out
of Building 64 towards Mr. Taylor, whom he now saw, when Mr. Lawson came
up from behind him on his bicycle and said something he couldn't
understand and continued past Mr. Cooper to Mr. Taylor; that he could
see Taylor and Lawson talking but he could not hear them. Mr. Lawson
left and came back towards Mr. Cooper and repeated his earlier statement
(those ULPs don't mean s--t and we are going to put these size 13s up
your ass), When Mr. Cooper got to Mr. Taylor, Mr. Taylor told him that,
" . . . Lawson had been at him again, after asking him questions . . .
about my meetings and he said he had told Mr. Lawson the fact that I was
doing a good job and that I had previously had the meeting and so on
scheduled, he knew about it, and there was no reason . . . that he
shouldn't release me . . . ." (Tr. 35). Mr. Cooper said that he
contacted the labor relations office and Commander Palanuk about what
Mr. Lawson had said. (Tr. 35).
Mr. Lawson testified that he had never addressed Mr. Cooper while
riding his bicycle (Tr. 179); never made any remark to Mr. Cooper (Tr.
179); and definitely did not say, "Your ULPs don't mean s--t, and I'm
going to put a size 13 brogan up your ass (Tr. 180). Mr. Taylor is no
longer working at the facility (Tr. 43) and did not testify.
6. Mr. Cooper testified that on September 26, 1984 he had gone to
the garage but could not find his forklift and then went to Building 64,
arriving at 7:00 or 7:02, to see if it were there. He met another
employee Berwin Jackson who was on a forklift, and they stopped and
chatted briefly. Mr. Mr. Lawson was in front of Building 64 and was
watching him. Lawson called Mr. Taylor out, "Taylor, Taylor, get out
here" and when Mr. Taylor came out, Lawson said, "Aren't your people
supposed to be working? Why isn't he working?" (Tr. 37) and Mr. Taylor
looked at him and looked at his watch and said, "Man, they just started.
He just got here" and then, "Look . . . you keep me out of this. I
don't want to be involved in it", threw up his hands and went back into
the building. (Tr. 37). Mr. Cooper stated that he went on to talk to
Mr. Taylor about a meeting he had scheduled and Mr. Taylor told him that
Mr. Lawson had directed him to cancel all of my meetings, that this was
what Mr. Evans (Deputy Department Director) and the Command wanted (Tr.
37). Mr. Taylor told him that Mr. Lawson had said he was under a lot of
pressure from Mr. Evans to keep Cooper on the job (Tr. 37-38). Mr.
Cooper stated that he told Mr. Taylor, " . . . I work for you. I do my
job . . . that's between you and me . . . why do they have to
interfere?" and Mr. Taylor had said, "Well, they don't want you doing,
you know, union business . . . They want you to do something wrong . .
. And what the problem is you do good work." (Tr. 38). Mr. Cooper
testified that on October 1, 1984, Mr. Taylor told him that Lieutenant
Pemberton had told him he wanted Taylor to report to him every time
Cooper had to go somewhere. (Tr. 40).
Mr. Cooper testified that on October 12, 1984, Mr. Taylor told him
that Mr. Lawson had called Mr. Evans concerning a meeting Cooper had
scheduled and Evans had told Lawson to have it cancelled, so Taylor
said, "Larry, your meeting . . . is cancelled." (Tr. 42). Mr. Cooper
further stated that Mr. Taylor told him that Mr. Lawson had called a
meeting of all supervisors and that Cooper was the subject of the
meeting; that Mr. Lawson had told the supervisors, " . . . Cooper is
really f------ Mr. Evans and the Command" and when a supervisor asked
what he meant, Mr. Lawson had replied, "You know what I mean with that,
you know, dam (sic) dam (sic) union, and those damned people with those,
you know, ULP's . . . ." (Tr. 43).
Mr. Lawson testified that he directed his forman when " . . . we're
in a backlog mode to hold people back sometime if you can't let them go
because of the backlog. But if you can't let them go, be sure to let
them - - set a time that they can go." (Tr. 184). Mr. Lawson did not
recall any specific time he might have directed Mr. Taylor to cancel out
a meeting Mr. Cooper had scheduled (Tr. 184-185). Mr. Lawson denied any
instruction from upper level of management regarding Mr. Cooper (Tr.
194). Although Mr. Cooper testified that he was prevented from going
off on official time on October 12 (Tr. 88), Respondent Exhibit 3, a
Labor Distribution record kept by Mr. Adams, shows that on October 12,
1984, Mr. Cooper was on official time for union business for 6.5 hours
(Res. Exh. 3, Tr. 144-145).
7. Later in October, Mr. Taylor told Mr. Cooper that he was being
reassigned back to Mr. Adams (Tr. 46). Mr. Cooper had an EEO meeting
already scheduled for that day and called Ms. Deborah Voss, EEO
Specialist, and told her that he had been reassigned to work for Mr.
Adams and anticipated that there might be a problem and asked her to
call Mr. Adams. Mr. Cooper said that she told him, "Larry, don't worry
about it . . . you just tell him that you have your meeting and its
already been scheduled and approved" (Tr. 146). Mr. Cooper then went to
Mr. Adams' office to report for work and Mr. Adams told him to go to
Building 68 (Tr. 46). Mr. Cooper then told Adams he had an EEO meeting
scheduled and Adams told him he didn't want to talk about it and when
Cooper asked when they could talk about it, Adams said, "I'll let you
know." (Tr. 46-47). Mr. Cooper stated that he went to Mr. Taylor's
office in Building 65 and called Ms. Voss again and she told him, " . .
. go back and don't worry about it." (Tr. 47). Mr. Cooper said he then
returned to Mr. Adams' office and heard him talking to someone on the
telephone. Mr. Cooper stated that he heard Mr. Adams say, " . . . Yes,
I know I'm supposed to keep Cooper on the job. I know, I know, I'm
trying . . . . " . . . . (Tr. 47). Mr. Adams was not asked about this
incident.
8. From July through October, 1984, Lawson and another foreman,
Charles Richardson, who worked on the other side of the compound in
Building 322 and who supervised no employees where Mr. Cooper was
working, repeatedly approached Cooper at work. Lawson would stand, arms
akimbo, and just stare (Tr. 28, 38), and occasionally made remarks such
as "You'd better be working" or "We're going to put you in line" (Tr.
28, 30, 45). Mr. Richardson, who did not testify, never said anything
but would come to where Mr. Cooper was working, sometimes 3 or 4 times a
day, and just stare at Mr. Cooper, look at his watch and smirk or laugh
(Tr. 29, 30, 39, 44, 85, 86).
9. Mr. Cooper testified that in April, 1985, his previous
supervisor, Mr. Yarborough, told him he should talk to Mr. Lawson, that
Lawson was just doing what he was told and that he, Lawson, wanted to
talk to Cooper (Tr. 57). Mr. Cooper at that time was working for
Commander Palanuk and Mr. Lawson approached him in Building 322. Mr.
Cooper stated that Tommie Williams and Deanna Kelly were present when
Mr. Lawson came in and said he wanted to talk to him (Tr. 57); that Mr.
Lawson said, "I've got a truck" (Tr. 57) and we got in the truck and
rode to the boat lock on the Naval Station; that, when they arrived at
the boat lock, Mr. Lawson said, " . . . Larry . . . I want to let . . .
I'd like to bury, you know, what happened between us . . . As far as I'm
concerned . . . you can do your union business or whatever you need to
do . . . I am not going to be the scapegoat no more . . . Mr. Evans can
say anything they want, but I'm not going to do it no more." (Tr. 58).
Mr. Cooper was too dumbfounded to respond (Tr. 58).
Respondent's attorney did not ask Mr. Lawson about this alleged
conversation, or the unusual circumstances in which it occurred; but,
at the conclusion of the examination of Mr. Lawson, I asked if, in
April, 1985, he had had a conversation with Mr. Cooper which was
preceded by his getting into Lawson's pick-up truck and driving to the
boat lock and Mr. Lawson responded, "I can't recall that." (Tr. 196).
Mr. Lawson further stated that he did not recall any conversation with
Mr. Cooper in April, 1985, concerning his performance of union duties
(Tr. 196). Mr. Yarborough did not testify nor did Mr. Williams or Ms.
Kelly, and I do not find Mr. Lawson's, "I can't recall" a denial or
refutation of the testimony of Mr. Cooper of an extraordinary statement
by Mr. Lawson made under most unusual circumstances and, accordingly, I
fully credit the testimony of Mr. Cooper. Mr. Lawson's statement to Mr.
Cooper directly relates to the credibility of Mr. Lawson's testimony
concerning all of his conduct and actions and, accordingly, I fully
credit Mr. Cooper's testimony in all respects with regard to statements
and actions of Mr. Lawson and Mr. Richardson.
10. At about 7:00 a.m. on Monday, November 19, 1984, Mr. Cooper
called Mr. Adams to request leave. Mr. Cooper testified that his child
had suddenly become ill and the doctor had told him to bring her in;
that he had called Mr. Adams and told him he had an emergency whereby he
had an illness in his immediate family and needed . . . to take them to
. . . the doctor's"; but before he could explain further Mr. Adams said
he " . . . didn't want to hear it . . . I'm giving you one hour to get
here at work." (Tr. 48). Mr. Cooper said he stated, "Well did you just
hear what I said? I said I've got an emergency . . . " and that Mr.
Adams said loudly, "I'm giving you one hour to get at work . . . If you
don't like it, you can call Mr. Lawson and check with him." (Tr. 48).
Mr. Adams testified that Mr. Cooper initially told him that he had some
personal business that had arisen over the weekend (Tr. 146, 164-165)
and he, Adams, told Cooper that the work backlog would not permit him to
grant him leave to take care of his business; that he needed him on the
job; and that he would have one hour to report (Tr. 146). Mr. Adams
admitted that Mr. Cooper then said it was an emergency, but Adams told
him he still had an hour to report and if he wished to take the matter
any further, he could call the general foreman (Lawson). Mr. Adams said
he told Cooper that anything after one hour would be charged to AWOL
(Tr. 146). I found Mr. Cooper's testimony far more convincing and
plausible than Mr. Adams' version and therefore credit Mr. Cooper's
testimony. In any event, Mr. Adams admitted that Mr. Cooper told him it
was an emergency.
After talking to Mr. Adams, Mr. Cooper testified that he did call Mr.
Lawson but his secretary, Pat, said Lawson wasn't there (Tr. 48-49, 84).
Mr. Cooper stated that he believed he also asked Pat if Lieutenant
Pemberton was there and he thought she said that he wasn't (Tr. 84).
Mr. Cooper then called Commander Palanuk. Mr. Cooper testified that he
told Commander Palanuk what had happened with Adams and himself and that
"He (Commander Palanuk) then, he asked me . . . 'Well, Larry . . . Do
you think you'll be off all day?' and that he (Cooper) had responded,
"No, Sir, I only take off whatever's necessary . . . I'm going to take
them to the doctor as soon as I . . . get that done . . . I'll be right
in" (Tr. 49, 92). Mr. Cooper further testified that Commander Palanuk
said "Okay" (Tr. 92). Mr. Cooper reported in at 12:30 p.m.; filled out
a leave slip and under "Remarks" wrote emergency leave "Approved by
Commander Palanuk" (Tr. 49-50, 92). Mr. Cooper stated that he then
called Ms. Candice Nutwell, in labor relations, and informed her what
had happened (Tr. 50).
Commander Palanuk, Director of the Materials Department, testified
that Mr. Cooper called him either before or shortly after 7:00 a.m.;
that he appeared upset and when he asked him what was the matter, Mr.
Cooper told him . . . he had asked his foreman for leave -- he had an
emergency -- and his foreman had turned him down. And I asked him if he
had tried to reach anyone else . . . He said he had tried and nobody
was available, and that's why he had called me." (Tr. 113). Commander
Palanuk said he thanked Mr. Cooper for the telephone call (Tr. 113) and
after he had hung up, called Lieutenant Pemberton and asked if he was
aware of the situation Mr. Cooper and he said he was not and had not
received any phone calls in his office and he had been there since early
in the morning (Tr. 113). Commander Palanuk did not recall whether Mr.
Cooper called him again when he reported in at 12:30 p.m., but conceded
that he might have (Tr. 119). Later, Commander Palanuk said he learned
that Mr. Cooper had submitted a leave request on which he indicated as
approved by him (Palanuk) when Ms. Nutwell called and told him.
Commander Palanuk testified
" . . . I was flabbergasted. I said . . . "How could he
construe his phone call to me as granting him leave? . . . . "
She said, "Well, did he call you?' and then I related the
conversation . . . and then she said, 'Well, gee, maybe he did
interpret that as -- ' I said, 'I'm not in the habit of granting
leave, so I don't know how he did, but anything's possible.'" (Tr.
131).
Thereafter, on the next pay day, Mr. Cooper felt his paycheck was for
less than he expected and called the payroll office and was told that he
had got AWOL for November 19 (Tr. 51-52). Mr. Cooper immediately called
Ms. Candice Nutwell in labor relations. Ms. Nutwell told Cooper she had
talked with Mr. Adams about the AWOL and Mr. Cooper, testified that he
said, "Candice, you knew that I was getting the AWOL. How come nobody
didn't tell me?" (Tr. 52) and she responded, "It wasn't my
responsibility to tell you, it was Adams, and if Adams didn't tell you .
. . then he didn't do his responsibility . . . . " (Tr. 52). Mr. Cooper
said he told Ms. Nutwell, "You know what happened . . . I even told you
about it. I reported the incident to you the whole day of what happened
. . . This is it . . . I have to do something . . . Things are just
getting too reckless." (Tr. 52-53). Mr. Cooper stated that Ms. Nutwell
asked him to " . . . just hold off . . . " and give her some time to see
if she could get this squared away and he said he would. (Tr. 53).
Mr. Cooper stated that Ms. Nutwell called him back within the hour
and told him she had just talked to Commander Palanuk who told her that
he could perceive how Cooper believed he had approved his leave request
(Tr. 53). Mr. Cooper said he replied, "Candice . . . what do you mean
'perceive'? . . . He approved my leave . . . Why would I come in . . .
and thank him, and at the same time put in a leave slip . . . If he
didn't approve my leave . . . I would have been talking to the XO (sic)
or the Captain. I could not come in." (Tr. 53). Mr. Cooper said that
Ms. Nutwell again told him she would try to get the matter squared away
(Tr. 53). Mr. Cooper stated that Ms. Nutwell called back a second time
and told him, " . . . I talked to Commander Palanuk and we're going to
go ahead and square it away" (Tr. 54). Mr. Cooper said he asked if he
were going to get a check today and Ms. Nutwell said, "No, Larry, I'm
sorry. You're going to have to wait for . . . the next pay period.
That's the best we can do . . . . " (Tr. 54).
Nevertheless, the matter was never resolved (Tr. 54). Mr. Cooper
testified that in December, 1984, Ms. Nutwell told him " . . . Larry, I
really feel bad because . . . they told me they were going to go ahead
and . . . get these things done and they haven't done anything yet."
(Tr. 55). Mr. Cooper testified that in January or February, 1985, Ms.
Nutwell called him and told him they wanted proof that he had actually
had an emergency when he requested leave on November 19, 1984 (Tr. 55).
Mr. Cooper was upset and told Ms. Nutwell, " . . . Waht are you doing
right now? Are you guys calling me a liar? . . . Now, first you say
you are going to get it squared away. Then you tell me you were going
to get it away. And now you're telling me (sic) want me to bring a
document . . . This is wrong . . . Now, you're questioning the
validity of me -- of my conversation I gave you concerning my emergency
. . . That's enough" (Tr. 56). Mr. Cooper said Ms. Nutwell said, " . .
. let me try one more time and see if I can get this thing squared away
. . . " (Tr. 56). Mr. Cooper said Ms. Nutwell called back and said,
"Larry . . . I'm sorry. I tried, but that's it." (Tr. 56).
Ms. Nutwell did not testify.
Mr. Adams testified that he asked Mr. Lawson if he had given Mr.
Cooper leave for that day (November 19) and Lawson said that he had not.
Therefore, "I charged Cooper with AWOL". (Tr. 166, 167).
Conclusions
A. Asserted Campaign of Harassment of Chief Steward Cooper
For the most part, I found Mr. Cooper an entirely credible witness,
/3/ and I fully credit his testimony concerning Mr. Lawson's statements
and conduct. Mr. Lawson neither denied nor refuted Mr. Cooper's
testimony concerning an extraordinary conversation in which he, in
effect, admitted his campaign of harassment of Mr. Cooper at the
direction of his superior, Mr. Evans. Moreover, I specifically take
note of Respondent's failure to call witnesses, such as Messrs.
Yarborough and Taylor, to refute Mr. Cooper's testimony of statements
they had made to him. Finally, Mr. Richardson's conduct was so extreme
that it plainly showed it was part of a campaign to harass Mr. Cooper.
First, Mr. Richardson did not testify. Second, frequently with Mr.
Lawson, when Mr. Lawson made comments to Mr. Cooper, and at other times
alone, he came to a building where Cooper was working and stared, looked
at his watch, smirked, or laughed. Third, for a foremand to leave his
assigned area and come to buildings some distance away where he had no
employees but where Mr. Cooper was working, sometimes three or four
times a day, to stand and stare at Mr. Cooper was bizarre, to say the
least, and continued over a three month period is explainable only as
part of a campaign designed to harass Mr. Cooper. Accordingly, I
conclude, that from July through October, 1984, Respondent, through
Lawson, threatened Mr. Cooper by making statements to the effect that
previously filed unfair labor practice charges are worthless and that
there would be repercussions for filing such charges; and that
Respondent on October 12, 1984, through Taylor, at the direction of
Lawson, told Mr. Cooper that it did not want him to transact union
business, and that by such conduct Respondent violated Section 16(a)(1)
of the Statute. Veterans Administration Medical Center, Bath, New York
and Veterans Administration, Washington, D.C., 12 FLRA NO. 107, 12 FLRA
552 (1983); United States Air Force, Lowry Air Force Base, Denver,
Colorado, 16 FLRA NO. 128, 16 FLRA 952 (1984); Social Security
Administration, Baltimore, Maryland, 14 FLRA NO. 80, 14 FLRA 499 (1984).
B. Cooper Charged AWOL
At about 7:00 a.m. on November 19, 1984, Mr. Cooper called Mr. Adams
and asked for emergency leave to take his child to the doctor. Mr.
Adams refused to grant the leave and told Mr. Cooper he would give him
one hour to get to work and if he didn't like it, he could call Mr.
Lawson. Mr. Cooper called for Mr. Lawson but he was not in, nor was Lt.
Pemberton. Mr. Cooper then called and talked to Commander Palanuk.
Commander Palanuk stated that Cooper appeared upset and when he asked
what was wrong, Mr. Cooper told him he had asked his foreman for leave -
he had an emergency - and his foreman had turned him down and that he
asked if he had tried to reach anyone else he said he had tried and
nobody was available and that was why he called him (Commander Palanuk).
The only significant point of difference in the testimony of Commander
Palanuk and Mr. Cooper is whether Commander Palanuk approved the leave
request. Mr. Cooper testified that Commander Palanuk asked, " . . . Do
you think you'll be off all day?" and he had replied, "No . . . sir, I
only take off whatever's necessary . . . " and that Commander Palanuk
said "Okay". I have considered their testimony and credit Mr. Cooper's
testimony. Not only was Mr. Cooper's testimony more convincing and
plausible, but, under the circumstances, in view of Commander Palanuk's
conceded questions, I find it implausible that Commander Palanuk would
not have asked whether Cooper was asking leave for the entire day. Mr.
Cooper did not say that Commander Palanuk said "Your leave is approved",
but only that he said "Okay". Perhaps Commander Palanuk did not intend
to approve the leave request, but I find that he did say "Okay" from
which Mr. Cooper reasonably believed that he had approved his request
for leave. Indeed, even if Commander Palanuk's version were accepted,
it reasonably appeared that he had approved Mr. Cooper's request, for
will full knowledge that Mr. Cooper had called him: (a) because his
foreman had denied his request; (b) because he had tried to reach
others and nobody else was available; and (c) because he had an
emergency and could not come in, Commander Palanuk did not tell Mr.
Cooper that he did not approve such requests; did not tell Mr. Cooper
to call anyone else; did not tell Mr. Cooper that his request was
denied; or even tell Mr. Cooper he would look into it. Rather,
according to Commander Palanuk, he thanked Mr. Cooper for the telephone
call. When Mr. Cooper reported in at 12:30 p.m., he filled in a leave
request and under "Remarks" wrote emergency leave "Approved by Commander
Palanuk", which he left on Mr. Adams desk, and then called Commander
Palanuk to thank him. In addition, Mr. Cooper testified that he called
Ms. Nutwell, in labor relations, and told her what had happened.
Notwithstanding that he received a leave request which stated
"Approved by Commander Palanuk", Mr. Adams checked only with Mr. Lawson
who said he had not given Mr. Cooper leave that day and therefore, "I
charged Cooper with AWOL". I would agree that at the point Mr. Adams
denied Mr. Cooper's request for leave and gave him an hour to report,
Mr. Cooper knew that he would be placed on AWOL after that grace period,
unless, as Mr. Adams suggested, he talked to Mr. Lawson. Mr. Cooper did
not, in fact, talk to Mr. Lawson, as he was not in, but, instead talked
to Commander Palanuk who, as I have found, approved Mr. Cooper's
request, and Mr. Cooper so stated on the leave request. Respondent's
assertion that Cooper's " . . . own annotation 'approved by CDR Palanuk'
in the Remarks Block of the leave slip (Tr. 50) was nothing more than a
self-serving attempt to intimidate and force Adams' approval'
(Respondent's Brief, . 10), is pure sophistry. So far as I am aware,
and nothing in the record is to the contrary (See, e.g., Res. Exh. 2,
Art. 10), leave requests are normally submitted to the immediate
supervisor. Here, Mr. Cooper followed the procedure he would normally
have followed and indicated "Approved by Commander Palanuk" which should
have caused Mr. Adams, if he did not approve the request, to: (a)
forward the request to Commander Palanuk; or (b) return the request to
Mr. Cooper for submission to Commander Palanuk; or (c) notify Mr.
Cooper that his request was denied. But Mr. Adams did none of these
things, but, rather, charged Mr. Cooper three hours AWOL without notice
to Mr. Cooper. Respondent further asserts, "Cooper did not believe he
had any responsibility or obligation to discuss the matter with his
superv;sor, Adams . . . " (Respondent's Brief, p. 10). This is pure
hogwash. By stating on the leave slip, "Approved by Commander Palanuk",
Mr. Cooper had fully informed Mr. Adams all that he could have told him.
If Mr. Adams had any possible doubt he could have asked Mr. Cooper or
Commander Palanuk.
But the saga became even stranger. When Mr. Cooper learned, after he
received his next paycheck, that, despite Commander Palanuk's approval
of his emergency leave, he had been charged AWOL, he called Ms. Nutwell
and Mr. Cooper testified that she, after talking twice to Commander
Palanuk, told him " . . .we're going to go ahead and square it away" and
he would be paid for the time charged AWOL in the next pay period. As
noted, Ms. Nutwell was not called as a witness and I fully credit Mr.
Cooper's testimony that he was told by Respondent that he would be paid
for the time charged AWOL on November 19, 1984. Despite the assurance
of Ms. Nutwell that he would be paid for the AWOL time, Mr. Cooper was
not paid. Mr. Cooper stated that, in January or February, 1985,
Respondent, for the first time, demanded " . . . proof of emergency, of
the emergency on the day" and Mr. Cooper, understandably angered,
declined to provide any such document. Respondent asserts that " . . .
Cooper . . . acted irresponsibly by refusing to provide a doctor's slip
in support of his position, . . . . " (Respondent's Brief, p. 11). I do
not agree. Commander Palanuk accepted without question Mr. Cooper's
representation that he had an emergency (Tr. 118) and Ms. Nutwell told
Mr. Cooper that he would be paid for the time charged AWOL (three hours)
without qualification. Mr. Adams, although he testified that he had
counseled Mr. Cooper once for leaving to conduct union representation
affairs without approval (Tr. 152), did not testify that he had ever
otherwise counseled Mr. Cooper for abuse of leave. Article 10, Section
3, of the parties' agreement provides that, "Action to correct abuse of
sick and/or annual leave privileges shall be equitably applied to all
employees in the Unit" (Res. Exh. 2), but the record does not show when,
or under what circumstances, a doctor's statement is required of "all
employees" or, indeed, that any employee, other than Mr. Cooper, had
ever been asked to submit a doctor's certificate. Although Mr. Adams
did not indicate whether he referred to annual leave or sick leave or
both, his testimony that he had approved leave for Mr. Cooper both
before and after November 19, 1984, on the basis of a telephone call
(Tr. 151-152), in the absence of evidence to the contrary, strongly
suggests the absence of any such requirement. (Actually I do not know,
and the record does not show whether emergency leave for such purpose
would be considered "annual" or "sick" leave).
Why, then, was Mr. Cooper charged AWOL fo three hours on November 19,
1984? On the one hand, the record shows, and I have found, that
Respondent, through General Foreman Lawson and Foreman Richardson,
engaged in a campaign of harassment of Mr. Cooper because of Mr.
Cooper's protected activity and, from Mr. Lawson's undenied admission to
Mr. Cooper, " . . . Mr. Evans (Deputy Department Director) can say
anything they want, but I'm not going to do it no more" (Tr. 58), I draw
the inference that Mr. Lawson acted at the direction of Mr. Evans.
General Counsel asserts that, " . . . the only conclusion that can be
drawn is that Cooper was charged AWOL solely because of his status as an
employee who was an active Chief Steward on behalf of the Union . . . .
" (General Counsel Brief, p. 26). On the other hand, although
Respondent does not so assert, it could be argued that Adams' actions,
for whatever reasons, are beside the point for the reason that
Respondent agreed to pay Mr. Cooper for the three hours he had been
charged AWOL and, although Respondent reneged, all Respondent is guilty
of is breach of contract. Nothing in Mr. Adams' initial refusal to
grant Mr. Cooper leave on November 19 indicates that he did so out of
union animus. Mr. Adams was a former active Union member and officer
and, while Mr. Cooper testified that overheard a portion of a telephone
conversation in which Mr. Adams said, "Yes, I know I'm supposed to keep
Cooper on the job . . . . ", the record does not show that Mr. Adams
ever did anything to interfere with Mr. Cooper's use of official time
for Union activity, and on November 19, Mr. Adams charged Mr. Cooper
only three hours AWOL when, in fact, he was five and one-half hours late
in reporting, so Mr. Adams did give Mr. Cooper appreciable
consideration. I find Mr. Adams action after Mr. Cooper reported and
left the leave request on his desk strange, indeed; but later events
nullified Mr. Adams' conduct. Respondent agreed to pay Mr. Cooper for
the three hours AWOL. Ms. Nutwell did not say who had agreed; however,
the only person she indicated she had talked to was Commander Palanuk.
Ms. Nutwell was not called as a witness and Commander Palanuk was never
asked about Ms. Nutwell's statement, as Respondent's agent, that
Respondent had agreed to pay Mr. Cooper for the three hours he had been
charged AWOL. Respondent wholly ignores the Nutwell statement;
advanced as defenses allegations, such as that Mr. Cooper attempted to
intimidate Mr. Adams by submission of his leave request with the
notation "Approved by Commander Palanuk", which I have found wholly
without merit; and wholly ignored Mr. Lawson's "confession" which
implicated Deputy Director Evans. General Counsel showed that Mr.
Cooper engaged in protected activity and has shown that that conduct was
a motivating factor in the campaign of harassment against Mr. Cooper.
Respondent has failed to show by a preponderance of the evidence that it
would have refused to pay Mr. Cooper for the three hours AWOL in the
absence of his protected activity. Accordingly, in agreement with the
General Counsel, I find that Respondent violated Sections 16(a)(1) and
(2) of the Statute by refusing to remove the AWOL charge against Mr.
Cooper and to pay him for the time charged AWOL. Internal Revenue
Service, Washington, D.C., 6 FLRA NO. 23, 6 FLRA 96 (1981).
Having found that Respondent violated Sections 16(a)(1) and (2) of
the Statute, it is recommended that the Authority adopt the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. Section
2423.29, the Authority hereby orders that U.S. Naval Supply Center, San
Diego, California, shall:
1. Cease and desist from:
(a) Discriminating against Chief Steward Larry Cooper, or any
other employee, by threats or statements that previously filed
unfair labor practice charges are worthless and that there will be
repercussions for filing such charges.
(b) Interfering with the right to engage in activity protected
by the Statute by telling Chief Steward Larry Cooper, or any other
employee, that Union activities are not desired at this Activity.
(c) Engaging in a campaign of harassment against Chief Steward
Larry Cooper, or any other employee, by, among other things,
monitoring his activities and ridiculing him, because of his
involvement in Union activities.
(d) Discriminating against Chief Steward Larry Cooper, or any
other employee, because of their participation in protected
activity by charging them with AWOL.
(e) 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) Pay Chief Steward Larry Cooper for the time he was charged
with AWOL on November 19, 1984, and remove the notation of the
AWOL charge from his record.
(b) Post at its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Commanding
Officer and shall be posted and maintained for sixty (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 ensure
that such notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to Section 2423.30 of the Authority' Rules and
Regulations, notify the Regional Director of Region 8, Federal
Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that Paragraph 9 of the Consolidated Complaint
be, and the same is hereby, dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: September 6, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
(2) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(2) will be referred to,
simply, as Section 16 (a)(2)".
(3) As noted earlier, I did not credit Mr. Cooper's testimony that
Mr. Adams told him he could not use the telephone at any time, including
his own time; but, rather credited Mr. Adams' testimony. In addition,
I did not credit Mr. Cooper's version of the Octobr, 1984, telephone
incident in Adams' office, but, instead, found Mr. Adams version more
convincing; however, as stated, under neither version did I find any
conduct violative of the Statute.
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Chief Steward Larry Cooper, or any
other employee, by threats or statements that previously filed unfair
labor practice charges are worthless and that there will be
repercussions for filing such charges.
WE WILL NOT interfere with the right of employees to engage in
activity protected by the Statute by telling Chief Steward Larry Cooper,
or any other employee, that Union activities are not desired at this
Activity.
WE WILL NOT engage in a campaign of harassment against Chief Steward
Larry Cooper, or any other employee, by among other things, monitoring
his activities and ridiculing him because of his involvement in Union
activities.
WE WILL NOT discriminate against Chief Steward Larry Cooper, or any
other employee, because of their participation in protected activity by
charging them with AWOL.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL pay Chief Steward Larry Cooper for the time he was charged
with AWOL on November 19, 1984, and remove the notation of the AWOL
charge from his record.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VIII,
whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles,
California 90071, and whose telephone number is: (213) 688-3805.