Naval Air Station, Jacksonville, Florida (Respondent) and Naval Air Lodge 1630, International Association of Machinists and Aerospace Workers, AFL-CIO (Complainant) 




[ v02 p492 ]
02:0492(68)CA
The decision of the Authority follows:


 2 FLRA No. 68
 
 NAVAL AIR STATION
 JACKSONVILLE, FLORIDA
 Respondent
 
 and
 
 NAVAL AIR LODGE 1630, INTERNATIONAL
 ASSOCIATION OF MACHINISTS AND
 AEROSPACE WORKERS, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 42-4571(CA)
 
                            DECISION AND ORDER
 
    ON AUGUST 7, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR PRACTICE
 ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT BE
 DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978(43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 42-4571(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 25, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    IN THE MATTER OF
 
    NAVAL AIR STATION,
 
    JACKSONVILLE, FLORIDA /2/
 
                                RESPONDENT
 
    AND
 
    NAVAL AIR LODGE 1630, INTERNATIONAL
 
    ASSOCIATION OF MACHINISTS AND
 
    AEROSPACE WORKERS, AFL-CIO
 
                                COMPLAINANT
 
    ELBERT C. NEWTON
 
    LABOR RELATIONS ADVISOR
 
    SOUTHERN FIELD DIVISION OFFICE, OCP
 
    BOX 88, NAVAL AIR STATION
 
    JACKSONVILLE, FLORIDA 32212
 
                            FOR THE RESPONDENT
 
    THEODORE A. VANDERZYDE
 
    GRAND LODGE REPRESENTATIVE
 
    INTERNATIONAL ASSOCIATION OF MACHINISTS
 
    AND AEROSPACE WORKERS, AFL-CIO
 
    1300 CONNECTICUT AVENUE, NW.
 
    WASHINGTON, D.C. 20036
 
                            FOR THE COMPLAINANT
 
    BEFORE:  WILLIAM NAIMARK
 
    ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON APRIL 30, 1979
 BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, THE
 ATLANTA, GEORGIA REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED ON
 JUNE 14 AND 15, 1979 AT JACKSONVILLE, FLORIDA.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  A COMPLAINT WAS FILED ON OCTOBER 12, 1978 BY
 NAVAL AIR LODGE 1630, INTERNATIONAL ASSOCIATION OF MACHINISTS AND
 AEROSPACE WORKERS, AFL-CIO (HEREIN CALLED THE COMPLAINANT) AGAINST NAVAL
 AIR STATION, JACKSONVILLE, FLORIDA (HEREIN CALLED THE RESPONDENT).  IT
 ALLEGED THAT, EFFECTIVE AUGUST 4, 1978, FRANK COSENTINO, AN EMPLOYEE AND
 UNION STEWARD, WAS TERMINATED FOR HIS ACTIVITY ON BEHALF OF THE
 COMPLAINANT IN VIOLATION OF SECTIONS 19(A)(1)(2), (4) AND (6) OF THE
 ORDER.
 
    SUBSEQUENT THERETO THE COMPLAINANT AMENDED THE ORIGINAL COMPLAINT.
 THE SECOND AMENDED COMPLAINT, DATED NOVEMBER 20, 1978, ALLEGED A
 VIOLATION BY RESPONDENT OF 19(A)(1), (2) AND (4) FOR HAVING SEPARATED
 COSENTINO ON AUGUST 4, 1978 BY REASON OF HIS ACTIONS AS A UNION STEWARD
 ON BEHALF OF COMPLAINANT.  THE REGIONAL DIRECTOR'S NOTICE OF HEARING
 RECITED THAT THE HEARING WOULD BE HELD WITH REFERENCE TO SECTIONS
 19(A)(1) AND (2) OF THE ORDER.  /3/
 
    RESPONDENT SUBMITTED A RESPONSE TO THE COMPLAINT, DATED NOVEMBER 3,
 1978, IN WHICH IT DENIED THE COMMISSION OF ANY UNFAIR LABOR PRACTICE.
 IT AVERRED THEREIN THAT COSENTINO WAS TERMINATED FOR UNSATISFACTORY WORK
 PERFORMANCE RATHER THAN FOR ANY DISCRIMINATORY REASON UNDER THE ORDER.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING.  EACH WAS AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS EXAMINE WITNESSES.  THEREAFTER BOTH PARTIES FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING "FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE COMPLAINANT UNION HAS BEEN THE
 BARGAINING REPRESENTATIVE OF ALL NONSUPERVISORY UNGRADED EMPLOYEES AT
 THE NAVAL AIR STATION, JACKSONVILLE, FLORIDA.  THE SAID EMPLOYEES WERE
 COVERED BY A COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES WHICH,
 BY ITS TERMS, WAS EFFECTIVE ON JUNE 9, 1977 FOR A PERIOD OF TWO YEARS.
 
    2.  ON SEPTEMBER 28, 1977 THE EMPLOYER HEREIN HIRED FRANK COSENTINO
 AS A WG-9, PROBATIONARY /4/ EMPLOYEE.  COSENTINO, WHO WAS EMPLOYED AS A
 CARPENTER, HAD PREVIOUSLY BEEN ENGAGED IN THE RESIDENTIAL CONSTRUCTION
 BUSINESS IN FLORIDA SINCE 1957.  HE HAD ALSO BEEN EMPLOYED FOR 90 DAYS
 AS A SHEET METAL TRAINEE BY THE NAVAL AIR REWORK STATION.
 
    3.  COSENTINO WAS ASSIGNED TO THE PUBLIC WORKS DIVISION OF THE
 EMPLOYER HEREIN WHERE, AT THE TIME OF HIS EMPLOYMENT, THERE WERE
 EMPLOYED 6 OTHER JOURNEYMEN CARPENTERS AS WELL AS TWO CARPENTERS,
 ROBERT
 VAN LIEU AND FRANK BIALEK, WHO WERE ALSO PROBATIONARY EMPLOYEES.
 
    4.  SINCE 1975 WILLIAM H. PRITCHETT HAS BEEN, AND STILL IS, THE
 WOODCRAFTSMAN FOREMAN IN CHARGE OF THE CARPENTER SHOP IN THE PUBLIC
 WORKS DEPARTMENT, MAINTENANCE DIVISION.  PRITCHETT SUPERVISED 12
 EMPLOYEES, INCLUDING COSENTINO, AND THESE INDIVIDUALS WERE CLASSIFIED AS
 EITHER CARPENTERS, CEMENT AND BLOCK MASONERS, CONCRETE WORKERS,
 UPHOLSTERERS, OR FLOOR TILERS.
 
    5.  ON DECEMBER 15, 1977 COSENTINO WAS APPOINTED TEMPORARY STEWARD IN
 THE AFORESAID DEPARTMENT.  SUBSEQUENTLY, ON JANUARY 30, 1978, /5/, BAYNE
 C. TEAGUE, IN-PLANT CHAIRMAN OF THE UNION HEREIN, NOTIFIED MANAGEMENT IN
 WRITING THAT COSENTINO WOULD BE INSTALLED AS STEWARD IN THE PUBLIC WORKS
 DEPARTMENT.  RESPONDENT WAS NOTIFIED IN WRITING ON MAY 17 THAT, AS OF
 MAY 18, COSENTINO WOULD SERVE AS ACTING CHIEF STEWARD THEREAT;  AND ON
 JUNE 19 NELSON F.  VOELKER, PRESIDENT OF COMPLAINANT UNION, ADVISED
 RESPONDENT IN WRITING THAT COSENTINO WOULD BE THE CHIEF STEWARD IN THE
 SAID DEPARTMENT.
 
    6.  EMPLOYED AT THE PUBLIC WORKS AND SUPPLY SYSTEM DIVISIONS ARE 22
 STEWARDS AND 2 CHIEF STEWARDS.  OF THIS NUMBER, THERE ARE 10-11 STEWARDS
 WHO WORK IN THE PUBLIC WORKS DEPARTMENT.  THE STEWARDS REPRESENT
 EMPLOYEES IN RESPECT TO GRIEVANCES OR COMPLAINTS INITIATED BY THE
 WORKERS.  THEY CONFER WITH THE FIRST LINE SUPERVISOR AND IF THE PROBLEMS
 ARE NOT RESOLVED, THEY ARE HANDLED BY THE CHIEF STEWARD AT THE DIVISION
 LEVEL;  UNRESOLVED GRIEVANCES WOULD THEN BE HANDLED BY THE IN-PLANT
 CHAIRMAN FOR THE UNION AND THE COMMANDING OFFICER OR HIS REPRESENTATIVE.
 
    7.  BETWEEN JANUARY AND JULY COSENTINO HANDLED ABOUT 8-10 GRIEVANCES
 OR COMPLAINTS FILED BY EMPLOYEES IN THE PUBLIC WORKS DEPARTMENT
 REGARDING WORKING CONDITIONS.  HE REPRESENTED, AS STEWARD OR CHIEF
 STEWARD OF THE UNION, THESE INDIVIDUALS IN RESPECT TO SAID GRIEVANCES.
 
    8.  TESTIMONY BY COSENTINO'S SUPERVISOR, PRITCHETT, REFLECTS THAT HE
 WAS DISSATISFIED WITH THIS EMPLOYEE'S WORK PERFORMANCE AT THE OUTSET OF
 HIS EMPLOYMENT.  PRITCHETT BEGAN TAKING NOTES OF COSENTINO'S WORK
 ASSIGNMENTS AND HIS DEFICIENCIES IN DECEMBER, 1977 AFTER ANOTHER
 CARPENTER SOLICITED THE SUPERVISOR'S OPINION OF COSENTINO.  IN VIEW OF
 THE POOR QUALITY OF THE LATTER'S WORK, AS TESTIFIED TO BY PRITCHETT, THE
 FOREMAN MADE WRITTEN NOTATIONS OF COSENTINO'S PERFORMANCE.  HE
 TESTIFIED, FURTHER THAT SINCE THE OTHER TWO PROBATIONARY EMPLOYEES WERE
 FINE CARPENTERS, HE DID NOT MAKE NOTES OF THEIR WORK RECORD.
 
    9.  THE CRITICISMS LEVELLED AGAINST COSENTINO BY THE FOREMAN, IN
 RESPECT TO THE TASKS PERFORMED BY THE EMPLOYEE, INVOLVED THE FOLLOWING:
 
    (A) AN INITIAL ASSIGNMENT GIVEN TO COSENTINO INVOLVED HIS INSTALLING
 DOOR LOCKS AT BUILDING 590.  PRITCHETT CLAIMS IT TOOK THE EMPLOYEE 45
 MINUTES TO INSTALL ONE LOCK, WHICH WAS AN EXCESSIVE AMOUNT OF TIME.
 
    (B) ON DECEMBER 22 OR 23, 1977 COSENTINO WAS ASSIGNED TO INSTALL
 ONE-HALF INCH SOUND PROOFING MATERIAL ON A SHEETROCK WALL AT BUILDING
 101D.  ACCORDING TO THE FOREMAN, COSENTINO HAD DIFFICULTY INSTALLING
 METAL STRIPS TO HOLD THE JOINTS OF THE MATERIAL TOGETHER AND COULD NOT
 HIT ON THE STUDS.  PRITCHETT EXPLAINED TO COSENTINO THAT THE FIRST PIECE
 HAD TO BE CUT TO ACCOMPLISH THE TASK.  HE RETURNED LATER AND DISCOVERED
 THE PIECE HAD NOT BEEN CUT SO THAT THE STRIPS DID NOT FIT RIGHT AROUND
 THE DOORWAY.
 
    (C) ON JANUARY 3, COSENTINO, WHILE WORKING ON A TRUCK BED, CHECKED
 OUT A DRILL MOTOR AND OTHER TOOLS.  THE DRILL MOTOR WAS LEFT ON THE BED,
 AND COSENTINO DISCOVERED ON THE FOLLOWING MORNING THAT THE TOOL WAS
 GONE.  THE FOREMAN TESTIFIED THE MOTOR SHOULD HAVE BEEN TURNED BACK IN
 TO THE TOOL ROOM.  IT WAS NEVER LOCATED.
 
    (D) ON JANUARY 27 COSENTINO AND ANOTHER CARPENTER, ANTHRAM GREEN,
 WERE AT BUILDING 103 REPLACING SIDE GATES ON A TRUCK.  THE MEN MEASURED
 EACH BOARD SEPARATELY AND CUT THE MATERIAL FOR EACH ONE.  PRITCHETT TOLD
 THEM TO SPEED UP PRODUCTION, THAT THEY COULD CUT 5-6 PIECES WITH THE
 SAME LENGTH AT ONE TIME.  COSENTINO OBJECTED TO DOING THE TASK, SAYING
 IT WASN'T CARPENTRY, AND THE FOREMAN REPLIED THEY HAD BEEN DOING THAT
 WORK FOR A LING TIME AND IT'S THE ACCUSTOMED PRACTICE.
 
    (E) ON FEBRUARY 14 COSENTINO AND EARL COX WERE EACH ASSIGNED TO
 INSTALL A DOUBLE DOOR UNIT AT BUILDING 2 ON OPPOSITE SIDES OF THEREOF.
 PRITCHETT TOLD COSENTINO TO REMOVE THE SCREEN DOORS FROM OUTSIDE, TAKE
 TWO DOORS DOWN ON THE INSIDE, INSTALL TWO NEW DOORS WITH HINGES, PUT IN
 A T-ASTRIGAL STRIP BETWEEN THE DOORS, INSTALL A THRESHOLD, AS INSTALL A
 LOCK AND DOOR CLOSURE.  DURING THE DAY THE SUPERVISOR CHECKED TO SEE HOW
 COSENTINO WAS FARING.  THE LATTER SAID HE NEVER HUNG DOUBLE DOORS OF
 THIS TYPE BEFORE, AND HE REQUESTED ASSISTANCE.  COSENTINO ALSO SAID HE
 DID NOT KNOW HOW TO INSTALL A T-ASTRIGAL AND PRITCHETT SHOWED HIM THE
 PROCEDURE.  HOWEVER, THE SUPERVISOR TOLD THE EMPLOYEE TO DO THE BEST HE
 COULD, AND HE REFUSED TO ASSIGN SOMEONE TO ASSIST IN THE INSTALLATION.
 /6/
 
    AFTER THE DOORS WERE FINALLY INSTALLED BY COSENTINO, THE FOREMAN
 RETURNED TO INSPECT THEM.  HE DISCOVERED THERE WAS A HALF INCH CRACK
 BETWEEN THE DOORS AND THE DOOR WAS CUT TOO NARROW FOR THE OPENING.  THE
 DOORS WERE REMOVED, AND A PIECE OF LUMBER WAS ADDED BY THE WOODCRAFTMAN.
  THE JOB CONSUMED 20 HOURS WHEREAS IT SHOULD HAVE BEEN COMPLETED,
 ACCORDING TO PRITCHETT, IN 8 HOURS.  ROGER WILLI, MAINTENANCE GENERAL
 FOREMAN IN THIS DEPARTMENT, WHO WAS PRITCHETT'S SUPERVISOR, TESTIFIED
 THAT HE INSPECTED THE JOB;  THAT THE DOOR HAD DIFFERENT CLOSURES;  AND
 THAT THE WORK PERFORMED BY COSENTINO WAS OF POOR QUALITY.
 
    (F) ON MARCH 23 COSENTINO WAS ASSIGNED TO BUILD A WALKWAY (SMALL
 PLATFORM) WITH A HANDRAIL ON EACH SIDE OF THE STEPS AT BUILDING 769.
 BOTH THIS EMPLOYEE AND HUGH D. TAPLEY, CARPENTER, DREW MATERIAL FOR THE
 JOB.  COSENTINO WORKED ON THIS PROJECT FOR THREE DAYS.  PRITCHETT
 TESTIFIED THAT THE 4' X 4' POST FOR THE HANDRAIL WAS TWO INCHES OUT OF
 PLUMB, THE RISE OF THE STEPS UNEQUAL, AND THE TREAD ON THE STEPS WAS OUT
 OF LEVEL.  THE STEPS HAD TO BE REBUILT.  ALTHOUGH COSENTINO ASKED FOR A
 CHANCE TO REBUILD THEM, HE WAS NOT REASSIGNED TO DO SO.  VOELKER CAUSED
 AN INSPECTION TO BE MADE OF THE STEPS BY SAFETY OFFICER GEORGE
 DUCKWORTH.  HIS TESTIMONY REFLECTS THAT THREE WERE NOT WITHIN THE OSHA
 REQUIREMENTS, AND THAT ALL WERE SAFE EXCEPT FOR TWO OF THEM;  THAT THE
 STEP TREAD RISE VARIED, THE ANGLES DIFFERED, AND THE HANDRAILS WERE ONE
 INCH HIGHER THAN OSHA STANDARDS.  /7/ FURTHER EVIDENCE WAS ADDUCED BY
 COMPLAINANT TO SHOW THAT STEPS BUILD BY OTHER CARPENTERS WERE DEFICIENT
 AND UNSAFE.  /8/
 
    (G) ON MARCH 30 PRITCHETT ASSIGNED COSENTINO TO INSTALL A NEW DOOR AT
 BUILDING 8, AND HE SENT ALONG JESSE RICKS, CARPENTER, TO ASSIST IN THE
 TASK.  COSENTINO HUNG THE DOOR BUT HE INFORMED THE SUPERVISOR THAT THE
 DOOR LOCK DID NOT WORK PROPERLY.  PRITCHETT DISCOVERED THAT THE CYLINDER
 WAS UPSIDE DOWN.  HE OFFERED TO SHOW COSENTINO HOW TO INSTALL THE LOCK
 PROPERLY, BUT THE DENTAL OFFICE HAD THE KEY SO THE FOREMAN COULD NOT
 INSTRUCT HIM IN REGARD THERETO.
 
    (H) ON MARCH 31 COSENTINO WAS ASSIGNED TO PUT SAW BENCHES (HORSES)
 TOGETHER AND PRITCHETT EXPLAINED THE PROCEDURE TO HIM.  ALTHOUGH THE
 MATERIAL HAD BEEN CUT, THE WORK WAS POORLY DONE ACCORDING TO THE
 SUPERVISOR.  THE DEGREE OF ANGLE WAS SHORTENED UP-- A PIECE OF PLYWOOD
 WAS LAID ACROSS THE ENDS OF THE LEGS.  PRITCHETT ASKED COSENTINO TO CUT
 THE BEVEL ON WHERE THE PLYWOOD FIT AGAINST THE BRACES.  THIS WAS NOT
 DONE.
 
    (I) ON MAY 5 COSENTINO WAS ASSIGNED TO FREE WINDOWS, WHICH HAD BEEN
 PAINTED, AND REPLACE WINDOW BALANCES.  COSENTINO WAS UNABLE TO DO THE
 JOB.  PRITCHETT TESTIFIED THAT THE EMPLOYEE TRIED TO FREE THE WINDOWS
 FROM THE INSIDE RATHER THAN OUTSIDE;  THAT THIS WAS A ROUTINE JOB WHICH
 HAD NEVER POSED A PROBLEM FOR OTHER CARPENTERS.
 
    (J) ON MAY 18, 1978 COSENTINO WAS ASSIGNED TO HANGAR 115 TO CUT TWO
 DOOR OPENINGS THROUGH A 2' X 4' WALL.  HE CUT THE HINGES ON THE WRONG
 SIDE OF THE JAMB AND CUT THE PIECE OF CASING WRONG.
 
    COSENTINO TESTIFIED, AND I FIND THAT AT THIS TIME A DISCUSSION
 ENSURED BETWEEN HIMSELF AND PRITCHETT RE THE GRIEVANCES FILED BY THIS
 EMPLOYEE.  THE SUPERVISOR REMARKED THAT HE USED TO BE A CHIEF STEWARD
 HIMSELF AND HAD BROUGHT MR. TAPLEY INTO THE UNION;  AND THAT HE KNEW
 WHAT THE UNION COULD OR COULD NOT DO FOR AN INDIVIDUAL;  THAT REGARDLESS
 OF THE OUTCOME OF THE GRIEVANCES, PRITCHETT WOULD GIVE COSENTINO A
 WRITTEN REPRIMAND WHENEVER HE WAS DEFICIENT IN HIS WORK.
 
    (K) ON JULY 6 COSENTINO WAS ASSIGNED TO BUILD THREE PAIRS OF SAW
 BENCHES.  HE CUT THE PIECES OF MATERIAL TOO SHORT AND TOOK 16 HOURS TO
 FINISH THE TASK, WHICH PRITCHETT TESTIFIED SHOULD BE COMPLETED IN 8-10
 HOURS.  THE LEGS OF THE BENCHES WERE AT DIFFERENT DEGREES;  THE HEIGHT
 AND ANGLE VARIED ON THE BENCHES.  WILLI TESTIFIED HE SAW COSENTINO
 BUILDING TWO SAWHORSES;  THAT HE WAS PUSHING THE LUMBER BETWEEN THE
 FENCE AND THE SAW SO THAT THE LUMBER COULD KICK BACK;  AND THAT
 COSENTINO WAS WORKING IN AN UNSAFE MANNER.  THE SUPERVISOR TALKED TO
 COSENTINO WHO COMMENTED HE HAD DIFFICULTY FIGURING OUT WHAT ANGLE TO CUT
 THE SAWHORSES.  FURTHER, THE EMPLOYEE STATED HE WAS NOT FAMILIAR WITH
 THE "BEVEL SQUARE".  WILLI'S TESTIMONY INDICATES THAT THE SAWHORSES WERE
 NOT UNIFORMLY CONSTRUCTED SINCE THE LEGS WERE NOT ALL BUILT AT THE SAME
 ANGLE.
 
    10.  AS A RESULT OF THE INCIDENT ON FEBRUARY 14 RE THE TIME SPENT
 HANGING THE DOORS BY COSENTINO, AS WELL AS THE POOR WORK PRODUCT,
 PRITCHETT INFORMED THE EMPLOYEE ON FEBRUARY 16 THAT A LETTER OF
 REPRIMAND WOULD BE ISSUED TO HIM.  THE FOREMAN ASKED THE EMPLOYEE TO
 SIGN A LETTER CONCERNING THE MATTER.  COSENTINO REFUSED, STATING HE
 WANTED UNION REPRESENTATION.  PRITCHETT REPLIED THAT COSENTINO WAS THE
 UNION AND DIDN'T NEED IT;  AND THE EMPLOYEE COMMENTED HE WAS MERELY THE
 UNION STEWARD.
 
    11.  ON FEBRUARY 23 THE LETTER OF REPRIMAND WAS ISSUED TO COSENTINO.
 A GRIEVANCE WAS FILED ON HIS BEHALF ON THE GROUND THAT IT WAS IMPROPERLY
 ISSUED UNDER THE CONTRACT.  MANAGEMENT AGREED AND THE REPRIMAND WAS
 WITHDRAWN.
 
    12.  A SECOND LETTER OF REPRIMAND, BASED ON THE SAME INCIDENT, WAS
 ISSUED ON MARCH 14, AND ANOTHER GRIEVANCE FILED.  RESPONDENT DECIDED IT
 HAD BEEN SOMEWHAT HARSH ON COSENTINO AND WITHDREW THIS REPRIMAND.
 HOWEVER, IT GAVE HIM A 90 DAY LETTER OF DEFICIENCY.  ON MARCH 29
 PRITCHETT ISSUED TO COSENTINO A WRITTEN NOTICE OF NEED FOR IMPROVEMENT.
 
    13.  DURING 1978, ON A PARTICULAR DAY, COSENTINO LEFT HIS WORK
 STATION TO CHECK THE OVERTIME LIST WHICH THE PIPE SHOP FOREMAN HAD FOR
 HIS OWN EMPLOYEES.  THERE HAD BEEN SOME DISCREPANCY AS TO THE OVERTIME
 FOR SEVERAL WORKERS.  PRITCHETT HAD APPROVED FOUR HOURS LEAVE FOR
 COSENTINO TO CONDUCT UNION BUSINESS IN THE AFTERNOON.  WHEN THE PIPE
 SHOP FOREMAN ADVISED PRITCHETT THAT COSENTINO WAS ATTENDING TO UNION
 BUSINESS IN THE MORNING WITHOUT A SLIP, PRITCHETT WENT TO THE UNION
 OFFICE.  HE CONFRONTED COSENTINO AND SAID IF HE LEFT AGAIN WITHOUT
 GETTING PERMISSION, HE'D BE IN TROUBLE.  COSENTINO REPLIED HE HAD A CHIT
 (PERMISSION), BUT THE SUPERVISOR TOLD HIM THAT THE CHIT WAS FOR THE
 AFTERNOON.
 
    14.  COMMENCING IN JANUARY PRITCHETT INFORMED WILLI RE COSENTINO'S
 POOR PERFORMANCE.  ON JULY 7 THEY AGAIN DISCUSSED THE EMPLOYEE'S WORK
 RECORD AND AGREED THAT COSENTINO DID NOT POSSESS THE SKILLS OF A WG-9
 CARPENTER.  ACCORDINGLY, WILLI RECOMMENDED TO J. B. TUBBS, DIRECTOR OF
 MAINTENANCE, THAT COSENTINO BE TERMINATED.
 
    15.  THE RECORD ESTABLISHES THAT ON MARCH 24 COSENTINO WAS GIVEN AN
 AUTOMATIC PAY RAISE, OR STEP INCREASE, AND THAT HIS PERFORMANCE WAS
 RATED AS SATISFACTORY OR BETTER.  RECORD TESTIMONY REFLECTS THAT
 PRITCHETT DID NOT RECOMMEND THE INCREASE;  THAT THE ACTION WAS TAKEN BY
 THE PERSONNEL DEPARTMENT;  AND THAT NO EVALUATION /9/ HAD BEEN MADE BY
 PRITCHETT TO THE OFFICE RE COSENTINO'S PERFORMANCE AS A CARPENTER.
 
    16.  BY LETTER DATED JUNE 8 THE COMMANDING OFFICER, E. M. PEEKS,
 WROTE TO THE PUBLIC WORKS DIVISION AND EXPRESSED HIS THANKS TO COSENTINO
 AND FIVE OTHER CARPENTERS FOR THE GOOD JOB PERFORMED AT HANGAR 115
 DURING THE WEEK OF MAY 22.
 
    17.  RECORD FACTS DISCLOSE THAT SUPERVISOR PRITCHETT HAD REPRIMANDED
 ONLY ONE OTHER EMPLOYEE;  THAT HE NEVER HAS RECOMMENDED TERMINATION OF
 ANYONE ELSE.
 
                                CONCLUSIONS
 
    THE ISSUE PRESENTED FOR DETERMINATION IS WHETHER, AS CONTENDED BY
 COMPLAINANT, PROBATIONARY EMPLOYEE FRANK COSENTINO WAS TERMINATED
 BECAUSE OF HIS ACTIVITIES AS STEWARD AND CHIEF STEWARD ON BEHALF OF
 COMPLAINANT UNION -- ALL IN VIOLATION OF SECTIONS 19(A)(1) AND (2) OF
 THE ORDER.
 
    RESPONDENT MAINTAINS THAT COSENTINO WAS DISCHARGED AS A RESULT OF HIS
 POOR WORK PERFORMANCE AS A CARPENTER;  THAT THE EMPLOYEE DID NOT MEASURE
 UP TO THE REQUIRED STANDARDS OF A JOURNEYMAN CARPENTER;  AND THAT HIS
 ACTIVITIES AS A UNION STEWARD WERE NOT A FACTOR WHICH PROMPTED THE
 EMPLOYER TO TERMINATE COSENTINO'S EMPLOYMENT DURING HIS PROBATIONARY
 PERIOD.
 
    UNDER SECTION 19(A)(2) OF THE ORDER AN EMPLOYER IS FORBIDDEN TO
 DISCHARGE OR OTHERWISE DISCRIMINATE AGAINST AN EMPLOYEE BY REASON OF HIS
 UNION ACTIVITIES.  A VIOLATION OF THIS SECTION WILL OCCUR WHERE A MOTIVE
 FOR TERMINATION OF AN EMPLOYEE, ALBEIT IT COMBINED WITH OTHER
 CONSIDERATIONS, RESTS ON THE INDIVIDUAL'S ACTIONS ON BEHALF OF THE
 UNION.  THUS, THE TEST IS WHETHER, AS IS TRUE ALSO IN THE PRIVATE
 SECTOR, MANAGEMENT'S CONDUCT WAS MOTIVATED BY UNION ANIMUS.  SEE HEW,
 SSA, BUREAU OF HEARINGS AND VA HOSPITAL, MINNEAPOLIS, MINN.  A/SLMR NO.
 1090.
 
    APPLYING THE DECISIONAL LAW TO THE INSTANT CASE, I AM PERSUADED THAT
 RESPONDENT DID NOT VIOLATE SECTIONS 19(A)(1) AND (2) OF THE ORDER.
 CAREFUL CONSIDERATION OF THE RECORD FACTS CONVINCES ME THAT THE EMPLOYER
 WAS NOT MOTIVATED BY COSENTINO'S ACTIONS AS UNION STEWARD.  MOREOVER, I
 AM CONSTRAINED TO CONCLUDE THAT RESPONDENT WAS DISSATISFIED WITH THE
 EMPLOYEE'S WORK PERFORMANCE AS A CARPENTER;  THAT COSENTINO DID, IN
 FACT, FAIL TO PERFORM SATISFACTORILY ON SEVERAL JOB ASSIGNMENTS;  AND
 THAT SUPERVISOR PRITCHETT RECOMMENDED COSENTINO'S TERMINATION AS A
 RESULT THEREOF.
 
    RECORD FACTS DISCLOSE THAT FROM THE ONSET OF HIS EMPLOYMENT IN LATE
 SEPTEMBER 1977 UNTIL JULY 1978, COSENTINO HAD DIFFICULTY IN FULFILLING
 HIS JOB ASSIGNMENTS ON TEN DIFFERENT OCCASIONS.  APART FROM THE FACT
 THAT I DO NOT DEEM IT INCUMBENT UPON ME TO PASS UPON THE QUALITY OF HIS
 WORK IN EACH INSTANCE, IT APPEARS THAT THE EMPLOYEE HIMSELF CONCEDES HE
 LACKED THE EXPERIENCE TO PERFORM CERTAIN TASKS AND ADMITTED THAT ERRORS
 WERE MADE BY HIM IN THE EXECUTION THEREOF.  THUS, COSENTINO DOES NOT
 DENY HIS LACK OF ABILITY TO HANG THE DOUBLE DOORS ON FEBRUARY 14;  HE
 CONFIRMS THE FACT, AS DOES THE UNION REPRESENTATIVE VOELKER, THAT AT
 LEAST SEVERAL STEPS BUILT BY COSENTINO ON MARCH 23 WERE UNSAFE AND HAD
 VARIANCES IN THE STEP TREAD RISE AS WELL AS DIFFERENCES IN THE ANGLES.
 MOREOVER, NO DISPUTE EXISTS THAT THE ELECTRIC DRILL MOTOR ASSIGNED TO
 COSENTINO WAS NEVER DISCOVERED.  THE GENERAL FOREMAN, WILLI, ATTESTED TO
 THE POOR QUALITY OF THE EMPLOYEE'S WORK, PARTICULARLY IN REGARD TO THE
 CONSTRUCTION OF THE SAWHORSES.
 
    WHILE SOME DISCUSSION ENSURED BETWEEN PRITCHETT AND COSENTINO IN
 RESPECT TO THE UNION, I DO NOT FIND THAT THE FOREMAN MANIFESTED ANY
 UNION ANIMUS TOWARD THE EMPLOYEE.  PRITCHETT'S COMMENTS TO THE EFFECT
 THAT HE HAD BEEN A CHIEF UNION STEWARD AND HAD INTRODUCED CARPENTER
 TAPLEY INTO THE UNION REFLECT NO ANIMOSITY OR HOSTILITY TO LABOR
 ORGANIZATIONS.  /10/ FURTHER, THE RECORD ESTABLISHES THAT THERE WERE 22
 STEWARDS AND TWO OTHER CHIEF STEWARDS AT THIS LOCATION, AND THAT 10-11
 STEWARDS WORKED IN THE SAME DEPARTMENT AS COSENTINO -- THE PUBLIC WORKS
 DEPARTMENT.  THERE IS NO INDICATION THAT MANAGEMENT DISPLAYED ANY UNION
 ANIMUS TOWARD THESE INDIVIDUALS, HARASSED THEM BY REASON OF THEIR UNION
 ACTIVITIES, OR DISCRIMINATED AGAINST THEM BY REASON THEREOF.  THE RECORD
 IS BARREN OF ANY INTERFERENCE OR RESTRAINT VISITED UPON INDIVIDUALS OR
 STEWARDS FOR FILING GRIEVANCES OR COMPLAINTS UNDER THE AGREEMENT BETWEEN
 THE PARTIES.
 
    PRITCHETT EVIDENCED HIS DISSATISFACTION WITH COSENTINO'S WORK AS A
 CARPENTER FROM THE OUTSET.  HE ISSUED LETTERS OF REPRIMAND BASED ON HIS
 JUDGMENT THAT THE EMPLOYEE PERFORMED POORLY.  WHILE PRITCHETT KEPT NO
 RECORD OF THE PERFORMANCE OF THE OTHER TWO PROBATIONARY EMPLOYEES, I DO
 NOT CONCLUDE THAT HIS FAILURE TO DO SO WAS BOTTOMED UPON DISCRIMINATING
 REASONS.  BOTH VAN LIEU AND BIALEK, AS PROBATIONARY CARPENTERS, WERE
 CAPABLE CARPENTERS AND, AS TESTIFIED TO BY THE FOREMAN, NO NEED EXISTED
 TO DOCUMENT THEIR WORK RECORD.
 
    WHILE COMPLAINANT ADVERTS TO THE "RAISE" GRANTED COSENTINO, AS WELL
 AS THE "RATING" THAT THE EMPLOYEE PERFORMED SATISFACTORILY, THESE
 RESULTED FROM ACTION TAKEN BY THE PERSONNEL DEPARTMENT.
 
    THE INCREASE IN SALARY WAS A STEP-INCREASE AND WAS AUTOMATICALLY
 GRANTED;  AND NEITHER PRITCHETT NOR WILLI -- BOTH OF WHOM WERE
 INSTRUMENTAL IN TERMINATING COSENTINO -- SANCTIONED THE EVALUATION
 ATTRIBUTED TO THE EMPLOYEE.
 
    UPON CAREFUL CONSIDERATION OF ALL THE EVIDENCE HEREIN, I CONCLUDE
 THAT MANAGEMENT WAS NOT SATISFIED WITH COSENTINO'S PERFORMANCE AS A
 CARPENTER DURING HIS PROBATIONARY PERIOD.  THE RECORD REVEALS TO THE
 UNDERSIGNED THAT THE EMPLOYEE'S ACTIVITIES AS UNION STEWARD, OR CHIEF
 STEWARD, WERE NOT RESPONSIBLE FOR HIS TERMINATION;  THAT BOTH THE
 WOODCRAFTMAN FOREMAN AND THE GENERAL MAINTENANCE FOREMAN BASED THEIR
 RECOMMENDATIONS TO DISCHARGE COSENTINO UPON HIS INABILITY TO PERFORM AS
 A JOURNEYMAN CARPENTER.  ACCORDINGLY, I CONCLUDE THE TERMINATION OF
 FRANK COSENTINO DISCLOSED NO ILLEGAL MOTIVATION AND HENCE WAS NOT
 DISCRIMINATORY.
 
                              RECOMMENDATION
 
    IT HAVING BEEN FOUND THAT RESPONDENT DID NOT ENGAGE IN ANY CONDUCT
 VIOLATIVE OF SECTIONS 19(A)(1) AND (2) OF THE ORDER, IT IS RECOMMENDED
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  AUGUST 7, 1979
 
    WASHINGTON, D.C.
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ THE NAME OF THE EMPLOYER APPEARS AS CORRECTED AT THE HEARING.
 
    /3/ THE 19(A)(4) PORTION OF THE COMPLAINT WAS WITHDRAWN BY
 COMPLAINANT ON MARCH 6, 1979.
 
    /4/ THE PROBATIONARY PERIOD OF EMPLOYMENT IS ONE YEAR.
 
    /5/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER REFERRED TO
 WILL BE IN 1978.
 
    /6/ PRITCHETT CLAIMED HE WANTED TO EVALUATE COSENTINO'S ABILITIES AND
 THUS DECLINED TO ASSIGN ANOTHER CARPENTER TO THE JOB.
 
    /7/ IN VIEW OF MY CONCLUSIONS WITH RESPECT TO THE ALLEGED
 DISCRIMINATION, AS HEREINAFTER SET FORTH, I DO NOT CONSIDER IT NECESSARY
 TO PASS ON THE COMPARATIVE QUALITY OR WORKMANSHIP OF COSENTINO'S WORK
 PRODUCT.
 
    /8/ WHILE RESPONDENT CONCEDES OTHER WORKERS HAVE ERRED IN THEIR WORK
 PERFORMANCE, IT CONTENDS THIS WAS OCCASIONAL AND INFREQUENT.
 
    /9/ PROBATIONARY EMPLOYEES ARE NOT GIVEN A REGULAR PERFORMANCE RATING
 UNTIL THEY HAVE COMPLETED THEIR PROBATIONARY PERIOD.
 
    /10/ THERE IS SOME EVIDENCE THAT ON FEBRUARY 14, AT WHICH TIME
 PRITCHETT ADVISED COSENTINO HE