[ v10 p604 ]
10:0604(102)CA
The decision of the Authority follows:
10 FLRA No. 102
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
Respondent
and
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case Nos. 1-CA-142
1-CA-192
1-CA-199
1-CA-202
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 alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge found that the Respondent
had not engaged in other unfair labor practices alleged in the
consolidated complaint, and recommended dismissal of those portions of
the consolidated complaint. Thereafter, the General Counsel and 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. /1/ Upon consideration of
the entire record in this case, the Authority hereby adopts the Judge's
findings, conclusions and recommendations as modified herein. /2/
With respect to the complaint in Case No. 1-CA-199 the Judge, relying
on alternative theories, found no violation of section 7116(a)(1) and
(5) of the Statute with respect to Respondent's issuance of a new
"Shipyard Instruction" relating to "Environmental and Night Shift
Differentials for Wage Employees." In agreement with the Judge, the
Authority finds that upon notification by the Respondent of its intent
to issue the new instruction, the Union, pursuant to the terms of the
parties' collective bargaining agreement, had elected only to "discuss,"
as opposed to "negotiate" over, the matter and did in fact engage in
such discussions with the Respondent on three separate occasions. As
further found by the Judge, when the third meeting concluded with the
parties still in disagreement over the content of the new instruction,
the Union noted that it had the contractual right to convert the
discussions into negotiations and further informed the Respondent that
publication of the "Shipyard Instruction" without including the material
desired by the Union would result in the filing of an unfair labor
practice charge. Notwithstanding the above, the Union did not request
negotiations until after the issuance and implementation of that
instruction approximately two months later. Based on the above
circumstances, the Authority finds, in agreement with the Judge's
conclusion, that the Respondent had fulfilled its obligation pursuant to
the terms of the parties' collective bargaining agreement and therefore
did not violate section 7116(a)(1) and (5) of the Statute as alleged.
/3/
In Case No. 1-CA-202, the Authority agrees with the Judge that the
Respondent's action in unilaterally terminating the past practice of
weekly meetings between certain management and Union officials which
aided in the administration of the collective bargaining agreement /4/
was a violation of section 7116(a)(1) and (5) of the Statute. /5/
However, contrary to the Judge, the Authority finds that the
Respondent's termination of such weekly meetings because a Union
steward, acting on behalf of the Union, filed an unfair labor practice
charge against the Respondent, did not constitute" discipline or
discrimination "against an employee" within the meaning of section
7116(a)(4) of the Statute. /6/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Terminating regularly scheduled weekly meetings attended by
Shop 64 Union Stewards and the Production Superintendent of Shop
64, without first notifying the Federal Employees Metal Trades
Council, AFL-CIO, the employees' exclusive representative, and
affording such representative the opportunity to bargain on the
decision to effectuate such a change in conditions of employment.
(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:
(a) Rescind the October 25, 1979 order terminating the
regularly scheduled weekly meetings attended by Shop 64 Union
Stewards and the Shop 64 Production Superintendent and, upon
request of the Federal Employees Metal Trades Council, AFL-CIO,
the employees' exclusive representative, negotiate with the
exclusive representative concerning the decision to terminate such
regularly scheduled weekly meetings.
(b) Post at its facilities at the Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 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,
Portsmouth Naval Shipyard, or his designee, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places where notices
to employees are customarily posted. Reasonable steps shall be
taken to insure that said Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region I, 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.
IT IS HEREBY FURTHER ORDERED that the complaints in Case Nos.
1-CA-142, 1-CA-192 and 1-CA-199 in their entirety, and the complaint in
Case No. 1-CA-202 insofar as it alleges a violation of section
7116(a)(4) of the Statute, be, and they hereby are, dismissed.
Issued, Washington, D.C., December 3, 1982
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT terminate regularly scheduled weekly meetings attended by
Shop 64 Union Stewards and the Production Superintendent of Shop 64,
without first notifying the Federal Employees Metal Trades Council,
AFL-CIO, the employees' exclusive representative, and affording such
representative the opportunity to bargain on the decision to effectuate
such a change in conditions of employment.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employees in the exercise of their rights assured by the
Statute.
WE WILL rescind the October 25, 1979 order terminating the regularly
scheduled weekly meetings attended by Shop 64 Union Stewards and the
Shop 64 Production Superintendent and, upon request of the Federal
Employees Metal Trades Council, AFL-CIO, the employees' exclusive
representative, negotiate with the exclusive representative concerning
the decision to terminate such regularly scheduled weekly meetings.
(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, Region I, Federal Labor Relations Authority, whose
address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and whose
telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
A. Gene Niro, Esquire
For the Respondent
Richard D. Zaiger, Esquire
Richard B. Blazer, Esquire
For the General Counsel
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
These cases arose as unfair labor practice proceedings initiated
under the provisions of the Federal Service Labor-Management Relations
Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the
Statute") and the Rules and Regulations issued thereunder.
The complaint in Case No. 1-CA-199, issued on January 31, 1980, by
the Regional Director, First Region, Federal Labor Relations Authority,
alleged that the Portsmouth Naval Shipyard, Portsmouth, New Hampshire
(hereinafter called the Respondent or Shipyard), violated Sections
7116(a)(1) and (5) of the Statute by issuing Naval Shipyard Instruction
12532.1A (175), without furnishing the Federal Employees Metal Trades
Council (hereinafter called the Charging Party, Council, or Union)
notice and an opportunity to bargain concerning such change.
On January 28, 1980, the Regional Director issued a consolidated
complaint against the Respondent in Case Nos. 1-CA-142, 1-CA-192, and
1-CA-202. In case No. 1-CA-142, it was alleged that on or about August
17, 1979, Respondent, through, its agent Joseph Belmont violated Section
7116(a)(1) of the Statute stating to James Sargent, a bargaining unit
employee, that Sargent was being discharged for "going to the Union
instead of reporting to his supervisor," and further that on the same
date, the Respondent, through Joseph Belmont, violated Sections
7116(a)(1) and (2) of the Statute by discharging James Sargent.
In Case No. 1-CA-192, it was alleged that the Respondent, through its
agent Wendell Kinney violated Section 7116(a)(1) of the Statute on or
about August 21, 1979, by threatening to impose harsher discipline on
Norman Boucher because of Norman Boucher's status as a Union steward,
and further that the Respondent, through its agent, J. W. Summey,
violated Sections 7116(a)(1) and (2) of the Statute on or about August
24, 1979, by issuing a notice of a proposed five day suspension from
work, and by thereafter suspending Norman Boucher for five days without
pay because of Norman Boucher's status as a Union steward. /7/
In Case No. 1-CA-202 it was alleged that on or about October 25,
1979, the Respondent through its agent James Wakefield violated Sections
7116(a)(1) and (4) of the Statute by announcing the cancellation of
weekly meetings attended by Wakefield and certain Union stewards because
the Union filed an unfair labor practice charge under the Statute; and
further that on or about October 25, 1979, the Respondent through its
agent James Wakefield violated Sections 7116(a)(1) and (5) of the
Statute by "eliminating weekly meetings held between Wakefield and Union
stewards without furnishing the Union with notice and/or an opportunity
to bargain concerning such change."
On May 6, 1980, the Regional Director consolidated Case No. 1-CA-199
with a previous consolidation of Case Nos. 1-CA-142, 1-CA-192, and
1-CA-202. As a defense to the allegations in Case No. 1-CA-199, the
Respondent asserts that the Union, under the provisions of Article 6 of
the parties' collective bargaining agreement, waived the right to
negotiate concerning changes embraced in Navy Shipyard Instruction
12532.1A (175); that the parties merely agreed to "discuss" the
Instruction in accordance with the provisions of Article 6, and
thereafter the Respondent complied with pertinent provisions of the
collective bargaining agreement; that in any event, the Respondent did
in fact meet any obligation to bargain; and lastly that the case should
be dismissed because it involves essentially differing interpretations
of the rights and obligations of the parties under the terms of the
collective bargaining agreement, and should be resolved through
established grievance and arbitration procedures.
In Case No. 1-CA-142, the Respondent argues that the General Counsel
failed to sustain its burden of proving by a preponderance of the
evidence that Joseph Belmont told James Sargent that Sargent was being
discharged for going to the Union instead of reporting to his
supervisor, and further that the burden of proof was not met with
respect to allegations that James Sargent was discharged for having
sought Union assistance.
Similarly, in Case No. 1-CA-192, the Respondent takes the position
that the General Counsel failed to show by a preponderance of the
evidence that Wendell Kinney threatened Norman Boucher with harsher
discipline because of Norman Boucher's position as a Union steward, and
that there was a further failure of proof with regard to allegations
that harsher disciplinary action was taken against Norman Boucher
because of his status as a Union steward.
In Case No. 1-CA-202, the Respondent argues that James Wakefield's
discontinuance of regular weekly meetings with shop stewards was
precipitated by the Union's prior breach of an agreement relating to the
meetings, and not with the intent of disciplining or otherwise
discriminating against employees because of the filing of an unfair
labor practice charge; and further that discontinuance of the meetings
under the circumstances involved did not constitute a unilateral change
in working conditions.
The Respondent and the General Counsel were represented by counsel
and were afforded full opportunity to be heard, adduce relevant
evidence, and examine and cross-examine witnesses. Post-hearing briefs
were received from counsel representing the General Counsel and counsel
representing the Respondent. These have been duly considered. /8/
Based upon the entire record herein, including my observations of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, /9/ and the briefs, I make the following
findings of fact, conclusions and recommendations:
Case No. 1-CA-199 /10/
By letter dated October 5, 1978 the Respondent provided the Union
with notice of plans to publish and implement a new Shipyard Instruction
relating to "Environmental and Night Shift Differentials for Wage
Employees," in order to establish new policies for administering
environmental differentials and night shift pay for bargaining unit
employees (R. Exh. 5(a)). A copy of the proposed Instruction was
supplied to the Council. /11/
By letter dated October 11, 1978, John P. O'Brien, President of the
Union requested that the Respondent meet with the Union "to discuss" the
new Instruction in accordance with the provisions of Article 6, Section
2 of the collective bargaining agreement governing the labor relations
of the parties (R. Exh. 5(b)). The agreement, in effect during all
periods in issue herein, is included as part of the record as G.C. Exh.
3.
Under the provisions of Article 6, Section 2, the Council was
provided the right to either "request a meeting to discuss the
provisions of the draft directive or request that the Shipyard meet and
confer (negotiate) on the negotiable provisions of the draft directive."
Section 3 limited the grant of official time to one half of the time
spent in negotiations if the Council elected to meet and confer, and
Section 4(a) provided that meetings held following a Council request
"for the purpose of discussion," would, be exempt from the official time
arrangements prescribed in Section 3, but that in the event the Council
subsequently requested negotiations on issues discussed, "all time spent
in the discussion and negotiation phases will be subject to the half
time requirement in Section 3 . . . ."
Section 5(a) defined the phrase "meet and confer or negotiate," and
Section 5(b) defined the term "discuss," as follows:
a. Meet and confer or negotiate means bilateral exploration of
an issue and exchange of views and reducing to writing any mutual
agreement reached if requested by either party. However, it is
agreed and understood that failure to reach agreement will not
preclude management from taking actions if such failure to agree
would in effect negate the exercise of those rights expressed in
either Section 11(b) or Section 12(b) of Executive Order 11491, as
amended. Furthermore, if the parties reach impasse on a matter
other than those covered by either Section 11(b) or Section 12(b)
of Executive Order 11491, as amended, the Employer may
unilaterally impose changes in working conditions which do not
exceed the offers or proposals made in the prior negotiations.
The Employer agrees to advise the Council prior to making such
changes.
b. Discuss means that the Employer will provide the reasons
why a certain course of action is considered necessary and the
alternatives available, if any. The Council will be afforded, at
this discussion, the opportunity to comment or make
recommendations on these courses of action or alternatives they
may wish to put forth.
During the month of October 1978, the parties met for the first time
concerning the proposed change. John P. O'Brien, the Council's
President, was the spokesman for Council representatives, and Joseph W.
L. Mason, a Labor Relations Specialist was the spokesman for
representatives of the Respondent. The parties agreed that they would
discuss issues raised on official time, and that the Council could, if
it so desired, escalate the discussion into actual negotiations under
the terms of the collective bargaining agreement. The parties discussed
the proposed Shipyard Instruction page by page and the Council presented
its views relating to the proposed changes. The issues posed were not
resolved during this first meeting.
A second meeting was held in February of 1979. At this meeting the
Respondent's representatives provided Council representatives with their
response to concerns expressed by the Council during the October 1978
meeting. There was some agreement on certain issues, and further
discussion concerning areas of disagreement.
On August 10, 1979, the parties met again and discussed a revised
version of the Shipyard Instruction (R. Exh. 4, Tr. 31-33, 36-38). The
parties were unable to resolve a number of remaining issues. The
Council insisted upon the inclusion of certain documents with the
issuance of the Instructions; wanted immediate supervisors to have the
authority to make determinations regarding environmental pay; and
insisted upon the Council's definition of certain terms. The Respondent
presented the revised version of the Instruction as their final offer.
While still discussing the subject, Mr. O'Brien declared that the
parties had reached an impasse. Mr. O'Brien explained that the issues
might be resolved through mediation, and Mr. Mason said he did not think
so. Mr. O'Brien said that he had "to have something before we leave
here." Mr. Mason said, "Well, let me get back to you on this, John." Mr.
O'Brien stated that he did not have to consult with the Respondent
further, that he could request that the parties negotiate on the
subject; and that he would file an unfair labor practice if the
Respondent published the Instruction without including with the
Instruction certain documents which the Council insisted should be
issued as a part of the Instruction. Again, there was further
discussion of the Council position and then the meeting ended with Mr.
O'Brien saying, "You make your move, and I'll make mine."
Following the August 10th meeting, the Council did not request
negotiations and the Respondent did not make any effort to contact the
Council concerning the subject matter discussed. On October 12, 1979,
the Instruction was issued with an October 22, 1979 effective date (R.
Exh. 4, G.C. Exh. 4, Tr. 34-35). Upon learning of the implementation
Mr. O'Brien phoned Mr. Mason to complain about the issuance, and to
orally request that negotiations be scheduled. /12/ This request was
not made until on or about November 1, 1979, or after the effective date
of the Instruction.
By letter dated November 5, 1979, Mr. O'Brien requested that the
Respondent enter into formal negotiations concerning the subject (R.
Exh. 1). The Respondent replied in a letter dated November 28, 1979,
stating that the Instruction had been fully discussed under Article 6 of
the negotiated agreement; that the Council had the right to elevate the
discussions to negotiations, but elected not to do so; and that the
right to negotiate concerning the subject expired with the publication
of the Instruction (R. Exh. 2).
Mr. O'Brien acknowledged that it had been a regular practice for the
Council to utilize the discussion procedure rather than the negotiation
procedure in order to take advantage of the contractual provision
exempting the Council from the limitation on the use of official time.
This practice was based upon the understanding that the Council could
convert discussions into formal negotiations if the Council so desired
(Tr. 17-18). Although Mr. O'Brien expressed his personal view that the
parties were in fact engaged in actual negotiations on August 10, 1979,
he also made it clear that some further action on his part would have
been needed to perfect the Council's right to negotiate under the
circumstances presented (Tr. 18).
Case No. 1-CA-192
This case originated as a result of a five-day suspension of Norman
Boucher, a bargaining unit member because of an alleged improper attempt
to cause the United States Department of Labor to award workmen's
compensation benefits to Roland Boucher for a work related heart
condition. /13/ Both Norman Boucher and Roland Boucher were employed as
metal inspectors at the Respondent's facility, and both served as Union
stewards. Norman Boucher was suspended for encouraging fellow employees
to sign a statement "which contained numerous and obvious
misstatements," and for personally composing, signing and submitting "a
statement without regard to accuracy of facts." (G.C. Exh. 7).
The record disclosed that John William Summey, Head of Respondent's
Non-Destructive Test Branch, assigned General Foreman Wendell Kenney to
conduct an investigation into Roland Boucher's compensation claim
because of suspicions that statements submitted therein were not true.
The two statements involved were both prepared by Roland Boucher in
March or April of 1979, about a year after events referred to in the
statements were alleged to have occurred. They were both executed in
late March or early April 1979. G.C. Exh. 5, a statement describing
observations of Roland Boucher's sick condition on May 8, 1978, was
signed by Norman Boucher. Norman and Roland Boucher subsequently
acknowledged that Norman Boucher's statement should have reflected the
date of May 5, 1978, rather than May 8, 1978. The statement as amended
was designed to evidence the fact that Norman Boucher had worked with
Roland Boucher all day on May 5, 1978, in the tanks of the Submarine USS
Tecumseh, and that Norman Boucher had observed Roland Boucher in a
sickly condition after leaving the tanks on May 5, 1978.
General Council Exhibit 6, a statement signed by nine co-workers,
reflected representation that the co-workers observed Roland Boucher's
sickly state on May 8, 1979, and further that Roland Boucher "remarked
that the pain he had experienced on Friday, May 5, 1978 was getting
worse, (left arm, shoulder, throat and especially the chest area)." This
statement was signed by Gus Benitez, Michael Linscott and Richard
Thompson among others.
As a result of the investigation, Wendell Kinney convened a meeting
on August 21, 1979 for the purpose of apprising Norman Boucher that
disciplinary action was contemplated against him because of his
involvement with the two statements. The meeting was attended by
Kinney, Norman Boucher and Chief Steward Ray Thurber. Kinney advised
that he was going to take disciplinary action because of the submission
of false statements. Both Norman Boucher and Thurber testified that
during the conversation Kinney indicated that he would be harsher on
Norman Boucher because Norman Boucher was a Union steward, and as such
should have presented a better example for "the troops." Kinney
categorically denied making any statement or statements which could have
been construed as a basis for concluding that he planned to take harsher
disciplinary action against Norman Boucher because of his status as a
Union steward, and further that Kinney did not mention Norman Boucher's
status as a Union Steward (Tr. 139-140, 151, 153-154, 156). He could
not recall whether the words "Union" or "steward" were used in some
other context (Tr. 148, 151, 156).
On or about August 24, 1979, Norman Boucher was given a Notice of
Proposed Disciplinary Action dated August 24, 1979, involving a proposed
five day suspension. The notice cited the reasons for the proposed
disciplinary action. It was noted that Shipyard records revealed that
relevant work in the tanks in the USS Tecumseh, was last performed on
April 25, 1978, and not May 5, 1978; that Norman Boucher advised
Wendell Kinney on August 21, 1979, that he was unsure of his whereabouts
on May 5, 1978, and that he could not remember exactly what happened a
year before, but that he did remember seeing Roland Boucher in distress
with chest and arm pain; that Norman Boucher neither omitted nor denied
responsibility for circulation of a statement for signing by other
employees on behalf of Roland Boucher; that three of the employees who
signed the statement (Richard Thompson, Gus Benitez and Michael
Linscott) stated that Norman Boucher and Roland Boucher requested them
to sign on behalf of Roland Boucher; and that verification of
attendance and work shift assignments of Thompson and Benitez gave rise
to inquiry concerning the method used to acquire the signatures of these
two employees.
The investigation of the case by Summey and Kinney disclosed that
Norman Boucher's statement was not true. Metal inspection work of the
type performed by Norman and Roland Boucher had been completed on the
USS Tecumseh prior to May 2, 1978. Thus Norman Boucher and Roland
Boucher would have had no reason to be performing metal inspection work
in the tanks on May 5, 1978 or May 8, 1978, because no such work was
then in progress. Furthermore, there was no record of metal inspection
work being performed by Norman Boucher or Roland Boucher during the
dates in question. /14/ Time record cards corroborated other proof that
Norman and Roland Boucher were not, as claimed in Norman Boucher's
statement, engaged on work in the tanks of the USS Tecumseh on the date
involved, and the time records of Gus Benitez, and Richard Thompson
signers of the joint statement, revealed that they were not working at
the Shipyard at 7:10 a.m. on May 8, 1978, the time and date on which
they allegedly observed Roland Boucher in distress. /15/
During the hearing Norman and Roland Boucher denied that Norman
Boucher was present during Roland Boucher's efforts to find co-workers
who would sign the statement, and both denied that Norman Boucher
participated with Roland Boucher in urging co-workers to sign. However,
the testimony of Gus Benitez, Richard Thompson and Michael Linscott
effectively contradicted Norman and Roland Boucher on this factual
issue. Benitez's testimony established that he did not want to sign
because he "wasn't sure about the dates that appeared on the statement
and I was working the second shift, and I didn't think it was a good
idea that I sign the statement." (Tr. 161-162). However, as a result of
Norman Boucher's urging, and position as a Union steward, Benitez signed
the statement. Richard Thompson recalled that Norman Boucher presented
the statement and stated that he signed it because Norman Boucher
requested him to do so. /16/ Michael Linscott testified that the
document was presented to him by Norman and Roland Boucher. /17/
The decision to suspend Norman Boucher for a five day period was made
by Summey upon the recommendation of Wendell Kinney. In contrast,
Summey decided that Gus Benitez should receive a one day suspension and
Richard Thompson be issued a letter of reprimand. Summey explained that
the harsher action was taken by him against Norman Boucher because he
caused others to sign a statement which set forth false information, and
because there was, in addition, a serious misrepresentation of fact in
Norman Boucher's statement. Summey explained further that he decided on
lesser penalties for Gus Benitez and Richard Thompson because their
offense merely involved signing a statement reflecting observations
which they did not have an opportunity to see. /18/
Prior to the actual suspension of Norman Boucher, John Murdock
replaced Summey. He reviewed the prior decision to suspend Norman
Boucher, met with Norman Boucher and Ray Thurber, reheard the case, and
affirmed the decision previously made by Summey to suspend Norman
Boucher for five days. The suspension was finally imposed in December
of 1979.
Case No. 1-CA-202
For a period in excess of one year prior to October of 1979, Union
stewards assigned to Shop 64 in the Shipyard met regularly each Thursday
afternoon with James Wakefield, Production Superintendent of Shop 64, to
discuss labor relations matters of mutual concern. The practice was
initiated at the request of Wakefield with the full cooperation of the
Union. Union stewards attending included Ray Thurber, Robert Maquire
and one Hugh Bailey. One purpose of the meeting as explained by Thurber
was, "to resolve problems that we have within the Shop without going
into formal grievance procedures and things like that . . . ." (Tr.
186). The parties agreed that they would meet informally at the
scheduled time, that there would be no formal record of the meetings and
that the parties would "frankly and openly discuss (matters) without
fear of reprisal or formal action." (Tr. 202). /19/
Prior to October 18, 1979 Superintendent Wakefield met with
supervisors under his jurisdiction. During the meeting he made critical
comments relating to the handling of an arbitration case by Union and
management officials in September of 1979. Union officials were
specifically criticized for being unprepared to present their side of
the arbitration case.
Subsequently, at a regularly scheduled stewards meeting prior to
October 18, 1979, Superintendent Wakefield also voiced his criticism of
the Union's and management's handling of the arbitration case. At the
meeting in question Steward Robert Maquire was the only steward in
attendance. On October 18, 1979, Wakefield again met with Shop 64 Union
stewards. During the meeting, Ray Thurber asked Wakefield whether he
had made disparaging remarks concerning the Union's handling of the
arbitration case. Wakefield admitted that he had in fact made such
remarks at his meeting with supervisors, and at the prior stewards
meeting attended by Union Steward Robert Maquire and Wakefield. Thurber
advised that he intended to file an unfair labor practice charge against
Wakefield for making the critical comments.
On October 23, 1979, Thurber filed an unfair labor practice charge in
Case No. 1-CA-171, alleging that Wakefield, on or about September 5,
1979, and thereafter, told bargaining unit employees that the Union had
performed a poor job of presenting the arbitration case (G.C. Exh. 9).
It was charged that Wakefield's statements "and other acts" were
violative of Section 7116(a)(1) and (5) of the Statute. The charge
filed in Case No. 1-CA-171, was dismissed by the Regional Administrator
(R. Exh. 7).
On October 25, 1979, a regularly scheduled stewards meeting was
attended by Wakefield, Robert Maquire and Ray Thurber. At the
conclusion of the meeting Wakefield advised that the regular weekly
meetings were being discontinued because an unfair labor practice charge
had been filed based upon comments made by Wakefield at a prior stewards
meeting. He explained that he did not feel that he could speak freely
in the future, and that the meetings no longer served a useful purpose.
Wakefield also stated that he was of the opinion that in taking official
action against him the Union had violated the informal ground rules
governing the meetings, and that his informal unofficial comments had
been used to develop formal charges against him. He said that he would
still be available for meetings upon request of the Union. /20/
Wakefield acknowledged during the hearing that he discontinued the
meetings because the Union had filed an unfair labor practice charge
against him in Case No. 1-CA-171.
Case No. 1-CA-142
The consolidated complaint alleged that on or about August 17, 1979,
Respondent, through Joseph Belmont, Shop Superintendent, Shop 71,
violated Section 7116(a)(1) of the Statute by stating to James Sargent,
a bargaining unit employee, that Sargent was being discharged for "going
to the Union instead of reporting to his supervisor," and further that
on the same date, Belmont precipitated violations of Section 7116(a)(1)
and (2) of the Statute by discharging Sargent. Since events leading up
to the termination are material and relevant they are set forth in
detail.
Sargent was employed by the Respondent as an equipment cleaner during
the period May 7, 1979 through August 30, 1979. He was supervised by
Valmore Bergeron during the period leaving up to his termination.
Bergeron became dissatisfied with Sargent's work performance and
reported his conclusions to Joseph Belmont, his superior. In this
regard Belmont received a report on July 10, 1979, that Sargent was not
performing work assigned. On July 27, 1979 he received a report that
Sargent could not be located at the job site, and that he had provided
an inadequate reason for the period of his absence. On August 2, 1979,
Bergeron again reported to Belmont that Sargent was not performing work
assigned, that he had taken excessive time for lunch, and that he was
found laying down on the deck. /21/
Belmont instructed Bergeron to have a discussion with Sargent with a
Union steward in attendance to represent Sargent, and thereafter an
investigation of Sargent's conduct was initiated by Bergeron. On or
about August 5, 1979, Bergeron apprised Sargent that disciplinary action
against him was being considered. Sargent informed Bergeron that his
poor performance was caused by a prior job related disability caused by
the inhalation of toxic fumes. /22/
On August 7 or 8, 1979, Bergeron met with Sargent in the presence of
a Union representative. Sargent was charged with failing to follow
proper instructions and loafing. He was informed that disciplinary
action against him was being contemplated. Sargent advised Bergeron
that he planned to resign that same day.
On August 8, 1979, Bergeron orally recommended to Belmont that
Sargent be terminated whether he resigned or not. After discussing
Bergeron's reasons Belmont agreed to look into the matter. On the same
date he informed Personnel that Sargent was going to resign. He
instructed Personnel that Sargent's resignation papers should reflect
that he had resigned with disciplinary action pending. /23/ Bergeron
did not resign as anticipated on August 8, 1979.
Thereafter Sargent remained away from work for a period of days. He
testified that he phoned in to report that he was ill. On August 15,
1979, Sargent returned to the Shipyard and informed Chief Steward
Richard Roberge of his difficulties, particularly noting that he was
impaired as a result of inhaling toxic fumes, and that he had a conflict
with Valmore Bergeron, his supervisor. Roberge agreed to help and
arranged for Sargent to meet with Belmont that same day. Roberge also
arranged for Sargent to be represented by Union Steward Claude Boucher
during the meeting with Belmont.
The meeting with Belmont on August 15, 1979 was held at about 8:00
a.m. Boucher asked for permission to provide new evidence for use in a
reconsideration of action commenced to remove him. Belmont agreed to
consider any new evidence. Boucher explained that there was a
personality conflict between Bergeron and Sargent, that Sargent did not
like working on the midnight shift, and that Sargent's work performance
was adversely affected by the prior work related exposure to poisonous
fumes. Boucher also wanted to marshal further support in aid of
Sargent. After hearing Boucher, Belmont did not reverse his decision,
but did agree to place Sargent on the day shift under Peter Moorenovich,
another supervisor. He also arranged for Sargent to visit the
dispensary that same day, and suggested that Sargent have a physical
examination in order to help in establishing his compensation claim.
/24/
Belmont instructed Sargent to report to Peter Moorenovich, his new
supervisor, after the meeting; and arrangements were also made for him
to go to the Naval Regional Medical Clinic to pursue his compensation
claim. Sargent admitted during his account of the meeting that Belmont
instructed him to report to Moorenovich after going to the clinic, and
further that Belmont instructed him to report to Moorenovich on August
16, 1979 also (Tr. 245).
Following the meeting with Sargent and Boucher, Belmont visited the
Personnel Office and reviewed records which had precipitated Bergeron's
recommendation to remove Sargent. Belmont also phoned Moorenovich at
about noon on August 15, 1979, and told him to expect Sargent to report
to Moorenovich following Sargent's visit to the clinic. He requested
Moorenovich to assign work to Sargent. At Belmont's request Moorenovich
also agreed to facilitate any request that Sargent might make for a
Union representative. Moorenovich subsequently phoned Belmont on August
15th to report that Sargent had not reported to him as directed.
The record disclosed that Sargent did in fact visit the clinic on
August 15, 1979, and that he was dissatisfied with medical advice he
received there to the effect that he should not be experiencing
symptoms. He left to see Dr. Cavari, a private physician in Portsmouth,
New Hampshire, but was unable to arrange an appointment that day.
Sargent at first testified that he made an appointment to see Dr. Cavari
on August 17, 1979, but later modified his testimony by stating that the
appointment was for August 16th. /25/
Early on August 16, 1979, Belmont met with Bergeron and reviewed the
case. Between 7:30 a.m. and 8:00 a.m., Belmont decided to separate
Sargent (Tr. 322). Although Sargent was supposed to report to
Moorenovich on August 16, 1979, he did not do so (Tr. 246-247). /26/
However, at about 10:00 or 10:30 a.m. Belmont observed Sargent with
Chief Steward Richard Roberge in the Respondent's Industrial Relations
Office. He inquired concerning the nature of their business in the
Industrial Relations Office and was told that they were perfecting
Sargent's compensation claim. Belmont inquired whether Sargent had
reported to Moorenovich as instructed the previous day, and Sargent
explained that he reported to the Union instead as "it was too late" in
the day to report for work. Belmont expressed irritation with Sargent
because he had not reported to Moorenovich on the previous day, and
because he had not reported to Moorenovich on August 16th. He also
expressed surprise to find Sargent in the Shipyard at that time without
first having reported in to his supervisor. Belmont instructed Sargent
and Roberge that he wanted them to report to his office as soon as they
had concluded their business relating to Sargent's compensation claim.
The version of events outlined thus far closely follows the account
supplied by Belmont. Roberge testified that the meeting in question
occurred after 3:00 p.m. on August 16th, and that Belmont instructed
Sargent and Roberge to report to Belmont's office early the next morning
(August 17th). Sargent's initial account of the August 16th meeting
also indicated that the meeting occurred late in the afternoon or August
16th, and that Belmont requested Sargent to report to his office the
next morning. However, Sargent subsequently corroborated Belmont with
respect to the earlier time of the Belmont, Roberge and Sargent meeting
in the Industrial Relations Office (Tr. 244-245, 247).
Both Sargent and Roberge also testified that during the August 16th
meeting in the Industrial Relations Office they explained to Belmont
that Sargent had been examined by a physician, that the physician had
advised him not to work for one week, and that a sick leave slip was
exhibited to Belmont. Belmont denied that Sargent exhibited a sick
leave slip to him during their discussion in the Industrial Relations
Office. The testimony of Sargent and Roberge with regard to the
submission of a sick leave slip from a private physician must also be
rejected in view of Roberge's later admission that at the time of this
meeting, Sargent "intended" to obtain such a slip, but that he did not
then have one (Tr. 268-269). In view of these and other serious
inconsistencies, and contradictions in Sargent's and Roberge's
testimony, it must also be concluded that Belmont instructed Sargent and
Roberge to report to his office upon the conclusion of their business,
and not the next day. /27/
Sargent's initial account of what was said by Belmont at the
termination meeting did not include a reference to the Union (Tr.
242-243). However, in response to the leading question: "Did Mr.
Belmont make any reference to the union at that time?", Sargent related
that he was told by Belmont that Sargent "had no right to go to the
union." (Tr. 243). Sargent acknowledged that Belmont explained the
statement, but Sargent could not recall details of the explanation (Tr.
243). During cross-examination Sargent again recounted details of the
conversation but was extremely vague as to the content of any of
Belmont's statements. He acknowledged, that, "in my state of mind that
day I just don't have the clear thought of what happened (Tr. 257).
Roberge's account of Belmont's utterances during the termination
meeting were to the effect that Belmont advised of his decision to
terminate Sargent, that Belmont asked Sargent why Sargent had gone to
the Union when he (Belmont) had instructed him to report back to his
immediate supervisor on the 16th, that Belmont said he had instructed
Sargent to report to his supervisor and that Sargent had not complied
with his instruction, but had reported to the Union first, that Belmont
had told Sargent he would help him, but that he was overstepping
Sargent's previous request for resignation because Sargent had gone to
the Union (Tr. 275).
Belmont testified that he informed Sargent and Roberge that he had
considered the information that they had presented to him the day
before; but that he had decided to terminate Sargent. He related that
he advised Sargent that he could still pursue his compensation claim.
Belmont vehemently denied making any statement to the effect that he had
promised to help but that Sargent had gone to the Union and was being
terminated (Tr. 303). In evaluating testimony relating to statements
made by Belmont on this factual issue the testimony of Sargent and
Roberge must be rejected in view of their demeanor and because of
inconsistencies and contradictions noted.
With regard to the foregoing, serious credibility questions relating
to their testimony were posed by their accounts of an August 16, 1979,
episode wherein Sargent was said to have reported to Moorenovich.
According to Roberge, Sargent and Roberge reported to Moorenovich late
in the afternoon on August 16, 1979, prior to meeting Belmont in the
Industrial Relations a Office; that they persuaded Moorenovich to
accept a sick slip from Sargent's private physician; and that
Moorenovich sent Sargent home for a week based on the recommendation of
Sargent's physician. Sargent at first testified that he did not know
whether Roberge accompanied him when he reported to Moorenovich (Tr.
235). He then testified that Roberge was not with him. (Tr. 235).
Sargent also testified that he reported to Moorenovich on August 16th
before he visited the Industrial Relations Office on that date (Tr.
239); however, he later testified that he reported to Moorenovich after
meeting Belmont on August 16th (Tr. 246). At another point Sargent's
testimony indicates that if he did report to Moorenovich, he did so late
in the afternoon on Friday, August 17, 1979 (Tr. 236-237), or after
Sargent was terminated. Faced with inconsistencies of this nature,
Belmont's account of the termination meeting must be credited.
Similarly, Moorenovich's testimony denying that Sargent reported to him
with Roberge must also be credited. /28/
Discussion and Conclusions
Case No. 1-CA-199
Both parties rely heavily upon the negotiated agreement in asserting
their respective positions concerning the Respondent's obligation to
bargain concerning the proposed Shipyard Instruction relating to
environmental and hight shift differentials for wage employees;
therefore, the issues essentially involve arguable interpretations of
the negotiated agreement and are not properly the subject of an unfair
labor practice proceeding.
It is well settled that alleged violations of a negotiated agreement
which concern differing and arguable interpretations of a negotiated
agreement, as distinguished from alleged actions which constitute clear
unilateral breaches of the agreement, are not deemed to be violative of
the Statute. In such cases the aggrieved party's remedy lies within the
grievance and arbitration procedures in the negotiated agreement rather
than through unfair labor practice procedures. Oklahoma City Air
Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (June
27, 1980); Social Security Administration District Offices in Denver,
Pueblo and Greeley, Colorado, et al., 3 FLRA No. 10 (April 14, 1980);
United States Department of Labor, 1 FLRA No. 107 (September 13, 1979);
Department of Health, Education and Welfare, Social Security
Administration, 1 FLRA No. 37 (May 9, 1979). However, a party to a
negotiated agreement acts at its peril in interpreting and applying such
an agreement. If the Respondent's interpretation of the agreement in
this case was such that it resulted in a clear and patent breach of the
terms of the agreement, then such interpretation could rise to the level
of an unfair labor practice. On the other hand, if Respondent's
interpretation was arguably within the terms of the negotiated
agreement, then such interpretation would merely be a matter of contract
interpretation to be resolved through the parties' grievance and
arbitration procedure. Oklahoma City Air Logistics Center, Tinker Air
Force Base, Oklahoma, supra.
A review of the record discloses that the Council and Respondent,
acting under the provisions of Article 6 of the collective bargaining
agreement, agreed "to discuss" the provisions of the proposed
Instruction in lieu of entering into negotiations under the provisions
of Article 6. Although the Council did recognize the right to transform
the discussions into negotiations, and even indicated that the Council
might exercise the contractual right to do so; such a step was never
taken by the Council. Arguably, the Respondent's conduct during
discussions and conduct concerning subsequent implementation of the
proposed Instruction constituted action taken in accordance with a
reasonable interpretation of Article 6 of the collective bargaining
agreement. In this regard, it is noted that the collective bargaining
agreement provided for pre-implementation notice only in cases wherein
the Council had previously requested the Respondent to "negotiate." It
is therefore concluded, that the Respondent's conduct, would not,
without more, constitute an unfair labor practice under the Statute.
Instead, the issue posed should have been resolved under the parties'
grievance and arbitration procedures.
In addition to the foregoing it is observed that the collective
bargaining agreement revealed, in clear and unmistakable language, a
provision for a waiver of the right to negotiate. That is, the parties
clearly distinguished between the rights and obligations of the parties
in situations wherein the parties agreed to "meet and confer or
negotiate" as defined under Section 5(a) of Article 6, and those
relating to situations wherein the parties agreed to "discuss" as
defined in Section 5(b) of Article 6. The record here discloses that
the Council exercised such a waiver in this case. Therefore, this case
would also be subject to dismissal on the separate ground that the
Council waived the right to negotiate concerning the proposed Shipyard
Instruction. Oklahoma City Air Logistics Center, Tinker Air Force Base,
Oklahoma, supra.
Case No. 1-CA-192
Proof of allegations pertaining to Case No. 1-CA-192 rest upon the
testimony of Norman Boucher, Roland Boucher, and Ray Thurber. The
record reflects little or no basis for crediting the testimony of Norman
and Roland Boucher. When first interviewed by representatives of the
Respondent in connection with the statement signed by Norman Boucher,
both of these witnesses could not recall whether they had worked
together on May 5, 1978, and evidence in the record indicates that work
in the tanks of the USS Tecumseh was not in fact being performed on May
5 or 8, 1978. Yet during the hearing, both of these witnesses
endeavored to establish that they did in fact perform work in the
Tecumseh's tanks on May 5, 1978. /29/
During the Respondent's pre-disciplinary investigation, Norman
Boucher would not admit or deny his involvement in Roland Boucher's
efforts to obtain the signatures of co-workers. Norman Boucher and
Roland Boucher did subsequently deny unequivocally, Norman Boucher's
involvement; but were thereafter completely discredited in this regard
by Benitez, Thompson and Linscott.
An additional basis for questioning Norman Boucher's credibility
stemmed from his testimony to the effect that Roland Boucher prepared
the statement; that Roland Boucher presented it to him; that they did
not discuss it all; and that he then signed it without comment or
inquiry. In light of later proof of misrepresentations in the
statement, this pattern of conduct also gives rise to serious questions
concerning the value of Boucher's statement as well as his subsequent
testimony at the hearing.
Thurber's testimony must be considered in the light of the serious
credibility problems posed by the testimony of Norman and Roland
Boucher. Also, it is noted that Wendell Kinney's demeanor and manner
during testimony relating to the conversation which took place during
the August 21, 1979 meeting, was forthright and sincere. On the basis
of this element, the testimony of Wendell Kinney is credited over that
of Norman and Roland Boucher and Ray Thurber. Accordingly, it must be
concluded that the General Counsel has not met the burden of proving
allegations in the Case No. 1-CA-192 by a preponderance of the evidence.
Of interest here is the fact that in Wright Line, A Division of
Wright Line, Inc., 251 NLRB No. 150 (1980), 105 LRRM 1169, The National
Labor Relations Board concluded that in examining discrimination where
an employer asserts a facially lawful business justification for the
alleged discriminatory action, it would examine such cases through an
analysis similar to that used by the United States Supreme Court in Mt.
Healthy City School District Board of Education v. Doyle, 429 U.S. 274
(1977). The Board stated that in such cases the General Counsel must
establish a prima facie case sufficient to support the inference that
protected conduct was a motivating factor in the Respondent's action.
Once this is established the burden arises for the Respondent to
demonstrate that the same action would have taken place even absent
protected conduct. Assuming the applicability of this rule under the
Statute, such an analysis would be unnecessary here as there was a
failure of proof in the first instance. That is, counsel for the
General Counsel did not establish that protected conduct was a
motivating factor. However, assuming that such proof had been adduced,
the record here does show that the reasons given for the disciplinary
action were not pretextual, and further that the Respondent would have
taken the same administrative action against Norman Boucher even in the
absence of protected conduct.
Case No. 1-CA-202
The record developed in this case shows a preponderance of the
evidence that Wakefield cancelled the regular weekly meetings Because
Chief Steward Ray Thurber furnished information used to supply the basis
for an unfair labor practice charge in Case No. 1-CA-171. This was
admitted by Superintendent Wakefield. He also admitted that he and
representatives of the Council entered into an informal agreement
providing for regular weekly meetings, and waiver, insofar as the weekly
meetings were concerned, of the notice requirements of Article 6,
Section 8 of the collective bargaining agreement. It was acknowledged
that this practice continued for a period in excess of one year. The
Respondent does not contend that the parties, specifically or generally,
contemplated that the Union waived rights provided by the Statute or
that the Council would not pursue unfair labor practice remedies
provided by the Statute.
Section 7116(a)(4) of the Statute provides that "it shall be an
unfair labor practice for an agency . . . to discipline or otherwise
discriminate against an employee because the employee has filed a
complaint, affidavit, or petition, or has given any information or
testimony under this chapter." Since Superintendent Wakefield terminated
the practice of holding regularly scheduled meetings each Thursday
because Thurber executed an unfair labor practice charge and because he
supplied information in connection with a proceeding initiated under
Chapter 71 of Title 5, it must be concluded that the conduct outlined
constitutes a violation of Sections 7116(a)(1) and (4). /30/
It is also well settled that the parties may establish terms and
conditions of employment by practice, or other forms of tacit or
informal agreement, and that this, like other established terms and
conditions of employment, may not be altered by either party in the
absence of agreement or impasse following good faith bargaining.
Department of the Navy, Naval Underwater Systems Center, Newport Naval
Base, 3 FLRA No. 64, (June 16, 1980); U.S. Department of Treasury,
Internal Revenue Service, New Orleans District, A/SLMR No. 1043, 8
A/SLMR 497 (1978). Here, the Respondent admitted the existence of an
informal agreement providing for the weekly meetings and a regularly
established practice of convening such weekly meetings without specific
notice of the meeting or statement of the subject matter to be
discussed. In view of the nature of the practice, particularly benefits
pertaining to weekly meetings, it is determined that the evidence shows
the establishment by informal agreement and practice, of a term and
condition of employment. The actions of the Superintendent Wakefield in
terminating these weekly meetings without first notifying and bargaining
in good faith with the Union also constituted violations of Sections
7116(a)(1) and (5) of the Statute.
During the hearing counsel for the General Counsel endeavored to
amend the consolidated complaint to provide a specific basis for
establishing Section 7116(a)(1) violations based upon Wakefield's
statements on October 25, 1979. However, since paragraphs 7(a) and 12
of the consolidated complaint provided a basis for the introduction of
such proof, the motion was denied. Despite the foregoing, it is
determined that Wakefield's statements standing alone would not
constitute independent violations of Section 7116(a)(1) of the Statute.
The expression of opinion regarding the Union's handling of an
arbitration case in the context presented here would not be considered
as interference, restraint or coercion of any bargaining unit employee.
The statement contained no threats of penalty or reprisal which might
have tended to impede the activity of Union officials who heard the
comments. The comments were not made to rank and file bargaining unit
members, but to Union officials who had agreed to have such meetings for
the purpose of discussing such matters with candor. In cases of this
nature the determination of whether Wakefield's statements were coercive
must take into consideration all circumstances surrounding Wakefield's
mention of the Union role during the prior arbitration proceeding.
Internal Revenue Service, Mid-Atlantic Service Center, A/SLMR No. 421, 4
A/SLMR 520 (April 26, 1974). Considering the factual pattern presented
here it is determined that there has been no showing of a Section
7116(a)(1) violation based upon statements made by Wakefield during the
October 25, 1979 stewards meeting. See United States Army
School/Training Center, Fort McClellan, Alabama, A/SLMR No. 42, 1 A/SLMR
225 (May 14, 1971); Internal Revenue Service, Mid-Atlantic Service
Center, supra; U.S. Department of Agricultural, Forest Service,
Quachita National Forest, Hot Springs, Arkansas, A/SLMR No. 845, 4
A/SLMR 444 (May 20, 1977). /31/
Case No. 1-CA-142
A careful examination of evidence introduced in connection with Case
No. 1-CA-142, discloses that counsel for the General Counsel failed to
establish by a preponderance of the evidence that the statements of
Joseph Belmont to James Sargent on or about August 17, 1979 constituted
independent violations of Section 7116(a)(1), and further that the
discharge of James Sargent on the same date was violative of Sections
7116(a)(1) and (2). It is noted at the outset that inconsistencies,
contradictions, and evasiveness noted in the testimony of James Sargent
and Richard Roberge led to the conclusion that their testimony on key
issues should not be credited.
The record disclosed a pattern of prior misconduct on Sargent's part
which generated a decision to terminate Sargent prior to the meeting
alleged as a basis of the unfair labor practices in this case. During
the period leading up to the actual termination, Joseph Belmont
exhibited an awareness and recognition of the need to protect Sargent's
right to Union representation. He made certain that he was represented
by a Union official when Sargent's supervisor advised Sargent that
disciplinary action was being contemplated against him. Similar concern
was evident in relation to subsequent meetings between management and
Sargent.
Following the meeting on August 15, 1979, Joseph Belmont decided to
give Sargent another chance to avoid termination. However, Sargent
thereafter failed to comply with Belmont's instruction to report to a
new supervisor on August 15, 1979. Sargent admitted that he was
instructed to report to his new supervisor and that he failed to do so.
Belmont learned of Sargent's failure to report on August 15, 1979, and
thereafter early in the morning on August 16, 1979, Belmont made a
second decision to terminate Sargent. Later in the morning on August
16th he met Sargent and Chief Steward Richard Roberge, and learned that
Sargent had again failed to report to his new supervisor on August 16th.
In explaining his failure to report the day before (August 15th),
Sargent mentioned that he had reported to the Union instead because it
was too late in the day to report for work. Thus, it was Sargent who
first referred to the subject of Sargent reporting to the Union office
and not Belmont.
Sargent's account of what was said at the termination meeting on
August 16th was extremely vague; and Sargent could not recall Belmont's
explanation of references made by Belmont to the Union. Roberge's
testimony to the effect that Belmont was discharging Belmont because he
had reported to the Union was discredited by testimony relating to
Sargent's failure to report to his new supervisor as instructed. That
is, it was the failure to report to a new supervisor and not Sargent's
decision to go to the Union on August 15th which precipitated Belmont's
final decision to terminate.
In summary, it is determined that counsel for the General Counsel has
not shown by a preponderance of the evidence that statements made to
Belmont interfered with, restrained, or coerced any bargaining unit
employee in the exercise of their rights under the Statute, or that
Sargent was otherwise discriminated against in violation of the Statute.
The record revealed instead that Sargent was terminated for
non-pretextual business reasons. Further, as in Case No. 1-CA-192, the
record shows that the Respondent would have terminated James Sargent
even in the absence of protected activity.
Having found that the Respondent violated Sections 7116(a)(1)(4) and
(5) in Case No. 1-CA-202, it is recommended that the Authority issue the
following Order:
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 Portsmouth Naval Shipyard, Portsmouth,
New Hampshire, shall:
1. Cease and desist from:
(a) Disciplining or otherwise discriminating against bargaining unit
employees assigned to Shop 64, Portsmouth Naval Shipyard, Portsmouth,
New Hampshire by terminating regularly scheduled weekly meetings
attended by Shop 64 Union Stewards and the Production Superintendent of
Shop 64, because of the filing of an unfair labor practice charge by a
bargaining unit employee.
(b) Terminating regularly scheduled weekly meetings attended by Shop
64 Union Stewards and the Production Superintendent of Shop 64, without
first notifying the exclusive bargaining representative and affording
such representative the opportunity to bargain, to the extent consonant
with law and regulation, on the decision to effectuate such a change.
(c) In any like or related manner, interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the October 25, 1979 order terminating regularly
scheduled weekly meetings attended by Shop 64 Union Stewards and the
Production Superintendent of Shop 64.
(b) Upon request, meet and confer with the exclusive bargaining
representative, to the extent consonant with law and regulations,
concerning the decision to terminate regularly scheduled weekly meetings
attended by Shop 64 Union Stewards and the Production Superintendent of
Shop 64, Portsmouth Naval Shipyard, Portsmouth, New Hampshire.
(c) Post at its facilities at the Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by the
Commander, Portsmouth 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 posted.
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the 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.
IT IS HEREBY FURTHER ORDERED that Case Nos. 1-CA-142, 1-CA-192 and
1-CA-199, be and hereby are, dismissed.
LOUIS SCALZO
Administrative Law Judge
Dated: March 9, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL rescind the October 25, 1979 order terminating regularly
scheduled weekly meetings attended by Shop 64 Union Stewards and the
Production Superintendent of Shop 64, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire.
WE WILL NOT discipline, engage in acts of reprisal, or otherwise
discriminate against bargaining unit employees assigned to Shop 64,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire by terminating
regularly scheduled weekly meetings attended by Shop 64 Union Stewards
and the Production Superintendent of Shop 64, because of the filing of
an unfair labor practice charge by a bargaining unit employee.
WE WILL NOT terminate regularly scheduled weekly meetings attended by
Shop 64 Union Stewards and the Production Superintendent of Shop 64,
without first notifying the exclusive bargaining representative and
affording such representative the opportunity to bargain, to the extent
consonant with law and regulations, on the decision to effectuate such a
change.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in their rights assured by the Federal Service
Labor-Management Relations Statute.
WE WILL upon request, meet and confer with the exclusive bargaining
representative to the extent consonant with law and regulations,
concerning the decision to terminate regularly scheduled weekly meetings
attended by Shop 64 Union Stewards, and the Production Superintendent of
Shop 64, Portsmouth Naval Shipyard, Portsmouth, New Hampshire.
(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, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 8th Floor, Boston, MA 02116, and whose telephone
number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ In Case No. 1-CA-202 the Judge denied a motion by the General
Counsel to amend the complaint to include an allegation that certain
statements made by a supervisor violated section 7116(a)(1) of the
Statute. The Authority notes that no exception was taken to this
ruling.
/2/ Noting particularly the absence of exceptions with respect
thereto, the Authority adopts the Judge's decision that the unfair labor
practices alleged to have been committed by the Respondent in Case Nos.
1-CA-142 and 1-CA-192 be dismissed in their entirety. In so concluding,
however, the Authority finds it unnecessary to pass upon the Judge's
dictum in Case No. 1-CA-192 regarding "mixed motives" inasmuch as he
found, based upon credibility determinations, that no unlawful motive
was involved in the suspension of employee Norman Boucher.
/3/ In so concluding, the Authority does not pass upon the Judge's
dictum regarding the possibility of a "clear and patent breach" of the
agreement or his additional conclusion that "the issue posed should have
been resolved under the parties' grievance and arbitration procedures"
as a matter of contract interpretation.
/4/ See American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
603 at 609 (1980), wherein the Authority held that a proposal concerning
use of an agency telephone system by union officials was within the duty
to bargain in that the proposal involved conditions of employment. In
reaching this conclusion, the Authority found that use of the telephone
system by the union related to the administration of the collective
bargaining agreement and, thus, was a tool to assist in the
implementation of the conditions of employment established therein.
/5/ While the Judge cited and relied upon Executive Order precedent
in reaching his conclusion in this regard, the Authority notes that
precedent under the Statute establishes the obligation to give notice
and an opportunity to bargain prior to making unilateral changes in
conditions of employment. See, e.g., Department of the Air Force, Scott
Air Force Base, Illinois, 5 FLRA No. 2 (1981).
/6/ Section 7116(a)(4) provides:
Sec. 7116. Unfair Labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
. . . .
(4) to discipline or otherwise discriminate against an employee
because the employee has filed a complaint, affidavit, or
petition, or has given any information or testimony under this
chapter(.)
/7/ The consolidated complaint in Case No. 1-CA-192 was amended
during the hearing to include an allegation relating to the suspension
of Norman Boucher in December of 1979 (Tr. 84-89).
/8/ Under authority provided in Section 2423.19(r) of the
Regulations, 5 C.F.R.Section 2423.19(r), the following corrections are
hereby made in the hearing transcript:
Page Line Change To
90 1 Johnny William John William Summey
104 18 kneaded meted
224 25 Bailey Blazar
Respondent's motion to correct the transcript so as to reflect
certain negative responses to questions addressed to John William Summey
is denied in view of the Reporter's exclusion of such responses from the
transcript, the absence of any personal recollection on the part of the
undersigned that such were given by the witness, and the absence of any
other showing that such negative responses were in fact elicited.
/9/ Hereinafter references to the transcript will be designated "Tr.
. . . ." and references to exhibits will be designated "G.C. Exh. . . .
" or "R. Exh. . . . ."
/10/ The four cases will be considered in the order of their
presentation during the course of the hearing.
/11/ The new Shipyard Instruction, designated as "NAVSHIPYD PTSMHINST
12532.1A" was designed to replace "PTSMH NAVSHIPYD Instruction 12532.1"
dated October 12, 1971 (R. Exh. 5(c) and G.C. Exh. 3).
/12/ Mr. O'Brien's version of events differs from Mr. Mason's account
in that Mr. O'Brien testified that he questioned the issuance because
Mr. Mason had agreed to contact him again, and that Mr. Mason
acknowledged this promise, but explained that he had been overruled by
his superiors. Mr. Mason testified that Mr. O'Brien did not accuse him
for not contacting Mr. O'Brien a last time, and that he made no
admissions concerning a failure to do so because his superiors had
overruled him on the question. Mr. Mason was of the view that there was
no reason to contact Mr. O'Brien again in view of Mr. O'Brien's final
ultimatum on August 10th.
/13/ Norman and Roland Boucher are not related.
/14/ Counsel for the General Counsel made an effort to establish that
inspection reports would not have been filed in situations wherein work
had been rejected; however, this explanation is of little or no value
in light of the showing that metal inspection work in the tanks of the
USS Tecumseh was completed as early as May 2, 1978. Evidence of the
latter fact was not rebutted.
/15/ The time records of these individuals disclosed that on May 8,
1978, the date mentioned in their joint statement, Thompson did not
commence work until 10:00 a.m., and Benitez did not commence work until
3:20 p.m.
/16/ Although Benitez and Thompson did endeavor to establish that
they had actually observed Roland Boucher in distress on some unknown
date, Benitez's reference to being on the second shift during the period
in question discredits him, and time records relating to work activity
of both of these witnesses on the date in question operate to discredit
both witnesses with respect to reported observation of Roland Boucher in
distress.
/17/ After completion of the investigation and the suspension of
Norman Boucher, a fourth co-worker who signed the statement advised
Wendell Kinney that Norman Boucher had encouraged him to sign the
statement on behalf of Roland Boucher.
/18/ Both Benitez and Thompson had not received prior discipline and
neither had been issued a letter of caution. Norman Boucher had
received a letter of caution in connection with an unrelated matter;
however, Summey did not take this into consideration in his decision to
discipline Norman Boucher.
/19/ Article 6, Section 8 of the collective bargaining agreement
provided that "either party desiring or having a requirement to discuss
some matter with the other, shall give advance notice to the other
party." The Section also provided: "Such notice shall include a
statement of the subject matter to be discussed, and the problem which
generated the cause of discussion. Such meeting will be scheduled as
soon as practicable." (R Exh. 3). The informal meeting procedure agreed
upon represented a waiver of formal notice by the Respondent and the
Union for the meetings held each Thursday. The Council did have the
right to request meetings under the terms of the collective bargaining
agreement, and the record reflects that the Council did in fact
participate in such meetings after the session wherein Wakefield
terminated the weekly meetings.
/20/ As noted the record disclosed that meetings between Wakefield
and Shop 64 Union Stewards were held upon request after the termination
of the regularly scheduled weekly meetings.
/21/ Sargent admitted that he was found in such a position (Tr.
252-253).
/22/ The record revealed that Sargent was exposed to toxic fumes on
May 22, 1979, that he had an adverse reaction, and that he was placed on
"traumatic leave" until his return to work on May 30, 1979.
/23/ The pending disciplinary action referred specifically to
Bergeron's recommendation and to Belmont's concurrence (Tr. 310).
/24/ Belmont acknowledged that as of the date of this meeting he was
aware that Sargent had an appointment to see a doctor during the morning
of August 16, 1979, for the purpose of having an examination. However,
as hereinafter noted the record reflects that Sargent had not been
examined as of the time of his termination during the morning of August
16th.
/25/ Sargent testified that Dr. Cavari subsequently diagnosed his
condition as a "spastic colon," and instructed him not to work for a
five-day period.
Under Shipyard policy a private physician did not have authority to
authorize sick leave. Employees were required to present medical
evidence to the appropriate supervisor, who would then either approve or
disapprove the sick leave based upon a physician's recommendation.
/26/ Sargent admitted that he did in fact punch his time clock at
about 7:00 a.m. on this date, but did not report for work.
/27/ The original charge in this case alleged that the termination
meeting occurred on August 16th (G.C. Exh. 2A).
/28/ Roberge's testimony reflected that Sargent had not seen his
personal physician as of the time of the meeting with Belmont on August
16th. Despite this admission Roberge insisted that the statement of the
physician was presented to Moorenovich on August 16th. It is noted that
Roberge's admission is consistent with Sargent's initial testimony to
the effect that he did not see his personal physician until August 17th
(Tr. 234).
/29/ During the hearing Norman Boucher again acknowledged inability
to recall what he was doing on specific days in May of 1978.
/30/ It is noted that the "Charge Against Agency" filed by Thurber in
Case No. 1-CA-171, (FLRA Form 22 (1-79), reflects the statement: "I
declare that I have read the above charge and that the statements
therein are true to the best of my knowledge and belief." On this basis
it is concluded that the charge may be characterized as an "affidavit"
within the meaning of Section 7116(a)(4).
/31/ The dismissal of the Charge in Case No. 1-CA-171 involved a
substantially similar finding based upon statements made by Wakefield
prior to October 23, 1979 (G.C. Exh. 9 and R. Exh. 7).