United States Marine Corps, Marine Corps Logistics Base, Barstow, California (Respondent) and American Federation of Government Employees, Local 1482, AFL-CIO (Charging Party) 



[ v05 p725 ]
05:0725(97)CA
The decision of the Authority follows:


 5 FLRA No. 97
 
 UNITED STATES MARINE CORPS
 MARINE CORPS LOGISTICS BASE
 BARSTOW, CALIFORNIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1482, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-554
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-NOTED PROCEEDING ISSUED HIS
 RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD ENGAGED
 IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION
 AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.  NO EXCEPTIONS WERE FILED TO THE JUDGE'S RECOMMENDED
 DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  /1/ THE RULINGS ARE HEREBY AFFIRMED.
 
    UPON CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND
 THE ENTIRE RECORD IN THIS CASE, AND NOTING PARTICULARLY THE ABSENCE OF
 EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATIONS.
 
                                 ORDER /2/
 
    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 UNITED STATES MARINE CORPS, MARINE
 CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) TERMINATING, AND OTHERWISE DISCRIMINATING AGAINST, EMPLOYEES
 BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    (B) MAKING STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO MUCH
 TIME ON THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    (C) INTERFERING WITH THE INVESTIGATION OF GRIEVANCES BY
 REPRESENTATIVES OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1482.
 
    (D) MAKING STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
 RECOMMENDED BECAUSE OF THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    (E) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) OFFER OSCAR CARR IMMEDIATE AND FULL REINSTATEMENT TO HIS FORMER
 OR SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY
 OR OTHER RIGHTS AND PRIVILEGES, AND MAKE HIM WHOLE, CONSISTENT WITH
 APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME HE MAY HAVE
 SUFFERED BY REASON OF HIS UNLAWFUL TERMINATION BY PAYING TO HIM A SUM OF
 MONEY EQUAL TO THE AMOUNT HE WOULD HAVE EARNED OR RECEIVED FROM THE DATE
 OF HIS TERMINATION TO THE DATE OF THE OFFER OF REINSTATEMENT, LESS ANY
 AMOUNT EARNED THROUGH OTHER EMPLOYMENT DURING THE ABOVE-NOTED PERIOD.
 
    (B) POST AT ITS MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA,
 FACILITIES 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 COMMANDING OFFICER OF THE MARINE
 CORPS LOGISTICS BASE, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE COMMANDING OFFICER, SHALL TAKE REASONABLE STEPS
 TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    ISSUED, WASHINGTON, D.C., MAY 28, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                                 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 NOT TERMINATE, OR OTHERWISE DISCRIMINATE AGAINST, OUR
 EMPLOYEES BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO
 MUCH TIME ON THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    WE WILL NOT INTERFERE WITH THE INVESTIGATION OF GRIEVANCES BY
 REPRESENTATIVES OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1482.
 
    WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
 RECOMMENDED BECAUSE OF THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS GUARANTEED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL OFFER OSCAR CARR IMMEDIATE AND FULL REINSTATEMENT TO HIS
 FORMER OR SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS
 SENIORITY AND OTHER RIGHTS AND PRIVILEGES, AND MAKE HIM WHOLE,
 CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS, FOR ANY LOSS OF INCOME
 HE MAY HAVE SUFFERED BY REASON OF HIS UNLAWFUL TERMINATION BY PAYING TO
 HIM A SUM OF MONEY EQUAL TO THE AMOUNT HE WOULD HAVE EARNED OR RECEIVED
 FROM THE DATE OF HIS TERMINATION TO THE DATE OF THE OFFER OF
 REINSTATEMENT, LESS ANY AMOUNT EARNED THROUGH OTHER EMPLOYMENT DURING
 THE ABOVE-NOTED PERIOD.
 
                           (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
 MATERIALS.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY, REGION 8, WHOSE
 ADDRESS IS:  350 SOUTH FIGUEROA STREET, 10TH FLOOR, LOS ANGELES, CA
 90071, AND WHOSE TELEPHONE NUMBER IS (213) 688-3805;  FTS 798-3805.
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ROBERT F. GRIEM, ESQ. AND
    RICHARD A.SCHULTZ, ESQ.
               FOR THE RESPONDENT
 
    E. A. JONES, ESQ. AND
    JOSEPH SWERDZEWSKI, ESQ.
               FOR THE GENERAL COUNSEL
 
    BEFORE:  FRANCIS E. DOWD
               ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
 IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
 ON JULY 30, 1980 BASED UPON A CHARGE FILED ON JUNE 13, 1980 BY THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO, HEREIN
 CALLED THE UNION.
 
    THE COMPLAINT ALLEGES THAT THE MARINE CORPS LOGISTICS BASE, BARSTOW,
 CALIFORNIA, HEREIN CALLED THE RESPONDENT, HAD ENGAGED IN, AND IS
 ENGAGING IN, UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTION
 7116(A)(1) AND (2) OF THE STATUTE, IN THAT (1) ON OR ABOUT JUNE 27,
 1980, RESPONDENT TERMINATED, AND HAS FAILED AND REFUSED, AND CONTINUES
 TO FAIL AND REFUSE, TO REINSTATE EMPLOYEE OSCAR CARR, HEREIN CALLED
 CARR, TO HIS FORMER POSITION OF EMPLOYMENT WITH RESPONDENT BECAUSE HE
 ENGAGED IN ACTIVITY PROTECTED BY 5 USC 7102;  (2) ON OR ABOUT JUNE 11,
 1980, RESPONDENT, THROUGH ITS AGENT AND SUPERVISOR, ROBERT WATKINS, AT
 ITS MARINE CORPS LOGISTICS BASE, MADE STATEMENTS TO EMPLOYEES THAT THEY
 WERE SPENDING TOO MUCH TIME ON UNION BUSINESS AND THAT THEY COULD SPEND
 ONLY ONE HOUR ON OFFICIAL TIME INVESTIGATING GRIEVANCES;  AND (3) ON OR
 ABOUT JUNE 11, 1980, RESPONDENT, THROUGH JOHN FITE, ITS AGENT AND
 SUPERVISOR, AT ITS MARINE CORPS LOGISTICS BASE, MADE A STATEMENT TO
 EMPLOYEES THAT THEIR REMOVAL WAS BEING RECOMMENDED FOR SPENDING TOO
 MUCH
 TIME ON UNION BUSINESS.
 
    RESPONDENT DENIES ANY VIOLATION OF THE STATUTE AND ASSERTS THAT CARR
 WAS TERMINATED FOR TARDINESS, ABSENTEEISM AND MISUSE OF LEAVE.  FURTHER,
 RESPONDENT CONTENDS THAT CARR'S TERMINATION WAS "IN THE WORKS" EVEN
 BEFORE THE ALLEGED SEC. 7116(A)(1) STATEMENTS WHICH IT ALSO DENIES.
 
    AT THE HEARING IN BARSTOW, CALIFORNIA ON SEPTEMBER 16, 1980, ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE,
 EXAMINE AND CROSS-EXAMINE WITNESSES, AND ARGUE ORALLY.  THEREAFTER,
 RESPONDENT AND COUNSEL FOR GENERAL COUNSEL FILED BRIEFS WHICH HAVE BEEN
 DULY CONSIDERED.  TO THE EXTENT APPLICABLE, THE PROPOSED FINDINGS OF
 FACT AND CONCLUSIONS OF LAW SUBMITTED BY THE PARTIES HAVE BEEN ADOPTED
 WITH APPROPRIATE MODIFICATION.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, /3/ AND FROM ALL OF THE
 TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
 
                             FINDINGS OF FACT
 
    1.  OSCAR CARR WAS HIRED BY THE MARINE CORPS LOGISTICS BASE, BARSTOW,
 CALIFORNIA, ON SEPTEMBER 26, 1979, AS A WAREHOUSEMAN-FORKLIFT OPERATOR
 IN THE MATERIAL DIVISION.  SHORTLY AFTER HIS HIRING, CARR JOINED THE
 UNION AS A MEMBER.  CARR UNDERWENT TRAINING AS A SHOP STEWARD FOR TWELVE
 WEEKS FROM JANUARY THROUGH APRIL 1980.  RESPONDENT WAS NOTIFIED OF
 CARR'S CERTIFICATION AS A SHOP STEWARD IN MATERIEL DIVISION ON APRIL 10,
 1980 (G.C. EXH. NO. 23). /4/
 
    2.  CARR WAS HIRED UNDER THE VETERANS READJUSTMENT APPOINTMENT (VRA)
 PROGRAM, WHICH IS DESIGNED TO ASSIST VETERANS IN FINDING CIVILIAN
 EMPLOYMENT AND IN ADJUSTING TO CIVILIAN LIFE (G.C. EXH. NO. 2).  CARR,
 WHO IS THIRTY-SEVEN YEARS OLD, HAS OVER NINETEEN YEARS OF MILITARY
 SERVICE.  EMPLOYEES HIRED UNDER THE VRA PROGRAM ARE REQUIRED TO JOINTLY
 DEVELOP WITH THEIR SUPERVISOR A TRAINING OR EDUCATIONAL PROGRAM TO
 DEVELOP THE EMPLOYEE'S JOB SKILLS (G.C. EXH. NO. 7).  CARR COMPLETED A
 COURSE ON WAREHOUSING ON APRIL 24, 1980, AND HAD ALMOST COMPLETED A
 SECOND, SIMILAR COURSE AT THE TIME OF HIS TERMINATION ON JUNE 27, 1980
 (G.C. EXH. NO. 9).
 
    3.  A FURTHER REQUIREMENT UNDER THE VRA PROGRAM IS THAT AN EMPLOYEE
 BE PERIODICALLY EVALUATED ON HIS JOB PERFORMANCE (G.C. EXH. NO. 7).  ON
 OR ABOUT FEBRUARY 25, 1980, CARR RECEIVED AN EVALUATION FOR THE PERIOD
 OF OCTOBER 1, 1979, THROUGH DECEMBER 31, 1979, FROM HIS SUPERVISOR, JOHN
 FITE.  CARR WAS RATED IN ATTENDANCE AND PUNCTUALITY BY FITE AS
 "REGULAR," AND IN DEPENDABILITY AS "USUALLY DEPENDABLE." FITE NOTED WITH
 REGARD TO "QUANTITY OF WORK" THAT CARR MET REQUIREMENTS WHILE IN
 "QUALITY OF WORK" HE WAS AVERAGE. OVERALL, FITE AND REVIEWER ROBERT
 WATKINS (FITE'S GENERAL FOREMAN) RATED CARR "AVERAGE" (G.C. EXH. NO.
 10).
 
    A.  DURING THE PERIOD COVERED BY CARR'S FIRST EVALUATION-- OCTOBER 1
 THROUGH DECEMBER 31, 1979-- CARR WAS ONLY LATE FOR WORK TWICE, AT THE
 BEGINNING OF THE RATING PERIOD (G.C. EXH. NO. 12).  ON NOVEMBER 19,
 1979, CARR WAS ON SICK LEAVE AFTER BEING SENT TO THE BASE DISPENSARY BY
 FITE WITH A FEVER.  THE CORPSMAN AT THE DISPENSARY TOLD CARR TO SEE HIS
 PERSONAL PHYSICIAN.  NOT HAVING ONE, CARR WENT TO THE FORT IRWIN
 DISPENSARY (CARR'S NATIONAL GUARD UNIT TRAINS THERE).  THOUGH NOT
 REQUIRED TO, CARR GAVE FITE A COPY OF THE SICK SLIP OBTAINED FROM THE
 FORT IRWIN DISPENSARY.
 
    4.  CARR RECEIVED A SECOND EVALUATION FROM FITE ON APRIL 15, 1980,
 FOR THE PERIOD JANUARY 1, 1980, TO MARCH 31, 1980 (G.C. EXH. NO. 11).
 CARR'S RATING FOR ATTENDANCE AND PUNCTUALITY REMAINED "REGULAR," BUT HIS
 DEPENDABILITY IMPROVED TO "ABOVE AVERAGE." SIMILARLY, HIS RATING FOR
 QUANTITY OF WORK WAS RAISED TO "FREQUENTLY EXCEEDS REQUIREMENTS" AND HIS
 RATING FOR QUALITY OF WORK WAS RAISED TO "VERY GOOD." OVERALL, CARR'S
 PERFORMANCE WAS RATED BY FITE (AND REVIEWED BY WATKINS) AS "VERY GOOD"
 AND IMPROVEMENT FROM HIS PREVIOUS RATING OF "AVERAGE."
 
    A. DURING THE PERIOD COVERED BY CARR'S APRIL 15 EVALUATION, HE WAS
 LATE ONCE-- THIRTY MINUTES ON JANUARY 18, 1980-- WHEN THE CAR IN WHICH
 HE WAS CARPOOLING BROKE DOWN.  CARR WAS ON SICK LEAVE ON JANUARY 21, 22,
 AND 23, 1980, AS A RESULT OF AN ACCIDENT DUE TO HIS CAR'S STUCK
 ACCELERATOR.  HE KEPT FITE APPRISED OF HIS WHEREABOUTS ON EACH OF THE
 DAYS AND, THOUGH NOT REQUIRED TO, SUPPLIED FITE, ON JANUARY 24, WITH A
 COPY OF THE DOCTOR'S SLIP ORDERING TWO DAYS' BED REST FOR JANUARY 22 AND
 23, AND INDICATING HE WAS SEEN BY A DOCTOR ON JANUARY 21.  ON FEBRUARY
 15, 1980, CARR WAS GRANTED FOUR HOURS OF ANNUAL LEAVE BY FITE TO LOOK
 FOR A NEW CAR.  ON MARCH 24, 1980, CARR WAS ON EIGHT HOURS SICK LEAVE.
 THE ONLY COUNSELING CARR RECEIVED REGARDING HIS USE OF LEAVE DURING THIS
 PERIOD WAS IN THE SESSION WITH FITE REGARDING HIS APRIL 15, 1980,
 PERFORMANCE EVALUATION, FROM WHICH, AS NOTED ABOVE, CARR UNDERSTOOD THAT
 HIS ATTENDANCE WAS SATISFACTORY.
 
    B.  CARR WAS GRANTED EIGHT HOURS ANNUAL LEAVE FOR MONDAY, APRIL 7,
 1980, TO SERVE AS A PALL BEARER IN THE FUNERAL OF THE WIFE OF A FRIEND.
 THIS LAST APPROVAL WOULD HAVE OCCURRED ONE WEEK BEFORE FITE COMPLETED
 CARR'S SECOND EVALUATION.  /5/ AS PREVIOUSLY NOTED, THE WRITTEN
 EVALUATION RATED CARR'S ATTENDANCE AS "REGULAR" AND HIS DEPENDABILITY AS
 "ABOVE AVERAGE."
 
    5.  CARR WAS ON ACTIVE DUTY FOR MILITARY TRAINING FOR THE NATIONAL
 GUARD FOR A 3-WEEK PERIOD FROM APRIL 16, 1980, THROUGH MAY 7, 1980.  FOR
 TWO OF THESE WEEKS (APRIL 16 THROUGH APRIL 22 AND FROM APRIL 30 TO MAY
 7), HE WAS CARRIED ON MILITARY LEAVE.  FOR THE WEEK OF VOLUNTARY
 MILITARY TRAINING IN BETWEEN, CARR, BY HIS ADVANCE REQUEST, WAS ON
 APPROVED ANNUAL LEAVE.  ALTHOUGH FITE APPARENTLY HAD NO PROBLEM IN
 APPROVING THE LEAVE REQUEST, HIS SUPERIOR, WATKINS, FELT DIFFERENTLY
 ABOUT THE MATTER WHEN HE HEARD ABOUT IT.  THUS AFTER CARR RETURNED FROM
 HIS MILITARY LEAVE, FITE TOLD CARR THAT WATKINS HAD CHEWED HIM OUT FOR
 GRANTING CARR THE ADDITIONAL FORTY HOURS OF ANNUAL LEAVE FOR MILITARY
 TRAINING.  THIS WAS CONFIRMED BY WATKINS AT THE HEARING.
 
    6. ON MAY 8, 1980, CARR CALLED IN SICK.  THE FOLLOWING DAY CARR CAME
 IN AND WENT TO THE BASE DISPENSARY AND TOOK A SLIP TO WATKINS AND FITE,
 WHO COUNSELED HIM CONCERNING HIS METHOD OF CALLING IN ON MAY 8.  FITE
 APPROVED HIS LEAVE FOR BOTH DAYS (G.C. EXH. NO. 8).  ON MAY 20 AND MAY
 21, 1980, CARR WAS ON APPROVED ANNUAL LEAVE AS A RESULT OF HIS
 AUTOMOBILE'S BREAKDOWN AND THE NECESSITY OF TOWING AND REPAIRING IT.  ON
 BOTH DAYS CARR ALERTED HIS SUPERVISOR OF THE SITUATION PRIOR TO THE
 START OF HIS SHIFT.  ON MAY 22, 1980, CARR WAS ON APPROVED SICK LEAVE
 BECAUSE OF A COLD AND TEMPERATURE.  THE FOLLOWING DAY CARR REPORTED TO
 WORK BUT WAS UNABLE TO FINISH THE DAY DUE TO ILLNESS.  HIS SUPERVISOR
 SENT HIM TO THE BASE DISPENSARY WITH HIS LEADMAN;  THE CORPSMAN THERE
 SENT HIM HOME AND THE LEADMAN SO INFORMED FITE.
 
    7.  CARR FIRST WORKED AS A UNION STEWARD FOR ABOUT THREE HOURS TOTAL
 ON MAY 28 AND 29, 1980.  THEREAFTER, CARR WAS ASSIGNED BY UNION
 PRESIDENT CHARLES WARE ON JUNE 5, 1980, TO STEWARD DUTIES ON A UNION
 GRIEVANCE INVOLVING SAFETY SHOES.  WHEN CARR REQUESTED A GREEN SLIP /6/
 FROM FITE, FITE REPEATEDLY QUESTIONED CARR AS TO WHETHER HE WAS ACTUALLY
 WORKING ON A UNION GRIEVANCE.  CARR WAS EVENTUALLY RELEASED ON A GREEN
 SLIP.  GENERAL FOREMAN WATKINS CONTACTED WARE AND QUESTIONED HIM ABOUT
 CARR'S ACTING AS A SHOP STEWARD.  WATKINS EXPRESSED CONCERN TO WARE THAT
 HE "DIDN'T HAVE TIME FOR THIS, THAT THEY HAD PRODUCTION WORK THAT HAD TO
 BE DONE." CARR SPENT APPROXIMATELY FIVE TO SIX HOURS ON THE GRIEVANCE--
 SOME OF THE TIME NECESSITATED BY A LACK OF COOPERATION FROM THE BASE
 SAFETY OFFICE.
 
    8.  THE NEXT DAY, JUNE 6, 1980, CARR SOUGHT A GREEN SLIP FROM FITE TO
 FURTHER INVESTIGATE THE SAFETY SHOE GRIEVANCE.  FITE CLOSELY QUESTIONED
 CARR ON THE MATTER EVEN AFTER CARR HAD GIVEN FITE THE INFORMATION
 NECESSARY TO OBTAIN HIS RELEASE ON OFFICIAL TIME.  FITE CALLED WARE FOR
 VERIFICATION AND QUESTIONED HIM AS TO WHETHER CARR WAS ACTUALLY WORKING
 ON A GRIEVANCE AND SUGGESTED THAT CARR HAD BEEN HIRED TO WORK, NOT TO
 INVESTIGATE GRIEVANCES.  WARE EXPLAINED THE REQUIREMENTS OF THE CONTRACT
 AND THE LAW REGARDING OFFICIAL TIME FOR STEWARDS.  CARR WAS FINALLY
 GIVEN A GREEN SLIP BY FITE AND SPENT THREE TO FOUR HOURS ON THE
 GRIEVANCE THAT DAY.
 
    9.  LATER, ON JUNE 6, CARR WAS AUTHORIZED BY CHIEF STEWARD BROWN TO
 INVESTIGATE AN EMPLOYEE COMPLAINT.  IN THE ABSENCE OF HIS SUPERVISOR,
 CARR OBTAINED A GREEN SLIP FROM HIS LEADMAN AND PROCEEDED TO INTERVIEW
 THE INVOLVED EMPLOYEE AND SUPERVISORS.  LATER THAT DAY, WHILE CARR WAS
 SPEAKING WITH THE COMPLAINANT AND A SUPERVISOR, FITE APPROACHED HIM AND
 IN A DISTURBED MANNER ASKED HIM WHAT HE WAS DOING.  AFTER CARR EXPLAINED
 THE CIRCUMSTANCES, FITE TOOK CARR'S GREEN SLIP AND ASKED WHO HAD SIGNED
 IT.  CARR TOLD FITE THAT THE LEADMAN HAD SIGNED IT.  FITE FOLDED THE
 SLIP, PUT IT IN HIS POCKET AND WALKED AWAY WITHOUT ANY FURTHER COMMENT.
 CARR, UNEASY AT BEING DEPRIVED OF THE GREEN SLIP-- WHICH AUTHORIZED HIM
 TO BE OUTSIDE HIS WORK AREA-- CONTACTED CHIEF STEWARD BROWN AND RELATED
 BOTH WHAT HAD OCCURRED AND HIS CONCERN ABOUT HOW HE WAS GOING TO GET
 BACK INTO HIS WORK AREA (CARR, TR. 55:12-19;  BROWN, TR. 118:21-25;
 YOST, TR. 109:15 TO 110:2).  BROWN CONTACTED FITE AND ADVISED HIM THAT
 HE WAS INTERFERING WITH A STEWARD'S GRIEVANCE INVESTIGATION.  ACCORDING
 TO BROWN, FITE SAID HE INADVERTENTLY TOOK THE SLIP BUT AGREED TO RETURN
 IT TO CARR.  BROWN INSTRUCTED CARR WHERE HE COULD MEET FITE TO GET THE
 SLIP.  HOWEVER, FITE DID NOT RETURN THE GREEN SLIP TO CARR.  WHEN CARR
 LATER ASKED FITE ABOUT THE GREEN SLIP, FITE JUST WALKED OUT THE DOOR.
 
    10.  SOMETIME AFTER THE END OF MAY, WATKINS AND FITE DISCUSSED CARR'S
 ABSENCE FROM WORK FOR UNION BUSINESS.  WATKINS TOLD FITE THAT HE
 CONSIDERED CARR'S UNION ACTIVITY EXCESSIVE, THAT CARR WAS SPENDING AN
 "AWFUL LOT" OF TIME ON UNION BUSINESS (FITE, TR. 206:23 TO 208:12;
 WATKINS, TR. 237:19 TO 138:6).
 
    11.  ON JUNE 11, 1980, CARR WAS ASSIGNED A GRIEVANCE TO INVESTIGATE
 BY ACTING CHIEF STEWARD DELLA YOST.  BECAUSE FITE WAS NOT AVAILABLE AT
 THE WORK SITE, CARR CONTACTED WATKINS FOR A GREEN SLIP-- AS FITE HAD
 INSTRUCTED HIM TO DO UNDER SUCH CIRCUMSTANCES.  WATKINS MET CARR IN
 FITE'S OFFICE AND AT THE OUTSET INDICATED CARR HAD BEEN TAKING OFF TOO
 MUCH TIME FOR UNION BUSINESS.  CARR RESPONDED THAT THE CONTRACT PROVIDED
 FOR SUCH TIME OFF.  WATKINS REJOINED THAT CARR HAD TAKEN TOO MUCH TIME
 OFF LATELY, THAT HE WAS GONE ON UNION BUSINESS 50% OF THE TIME.  CARR
 AGAIN TRIED TO EXPLAIN THE CONTRACT REQUIREMENTS BUT WATKINS SAID HE
 WANTED CARR BACK IN THE AREA IN ONE HOUR, THAT HE WAS LIMITED TO ONE
 HOUR.  CARR PROTESTED THAT MORE TIME MIGHT BE NECESSARY AND THAT THE
 CONTRACT DID NOT HAVE SUCH A TIME LIMIT.  WATKINS SAID CARR COULD MAKE
 ANOTHER APPOINTMENT FOR ANOTHER TIME.  CARR SUBSEQUENTLY CONTACTED DELLA
 YOST AND REPEATED WHAT WATKINS HAD SAID TO HIM.
 
    A.  ACCORDING TO YOST'S CREDITED TESTIMONY, HE CONTACTED WATKINS AND
 ASKED HIM IF HE HAD LIMITED CARR TO ONE HOUR.  WATKINS AFFIRMED TO YOST
 THAT HE HAD DONE SO AND THAT IT WAS BECAUSE CARR WAS SPENDING TOO MUCH
 TIME ON UNION BUSINESS.  YOST TOLD WATKINS HE WAS VIOLATING THE CONTRACT
 AND READ ARTICLE 22, SECTION 4 TO HIM.  WATKINS TOLD YOST THAT HE NEEDED
 PRODUCTION FROM CARR AND THAT CARR COULD GET ANOTHER GREEN SLIP IF HE
 NEEDED MORE TIME.  AFTER CARR INVESTIGATED THE GRIEVANCE HE RETURNED TO
 HIS WORK AREA AND WAS ASSIGNED WORK IN WAREHOUSE 406, WHERE HE SAW
 WATKINS.  WATKINS ASKED CARR IF FITE HAD SPOKEN TO HIM YET.  CARR SAID
 NO AND ASKED WHY.  WATKINS TOLD CARR NOT TO WORRY ABOUT IT BECAUSE FITE
 WOULD TALK TO HIM, AND HE THEN WALKED AWAY.
 
    B. AROUND 2:30 THAT AFTERNOON-- JUNE 11-- FITE PULLED CARR AWAY FROM
 HIS PAPERWORK IN BUILDING 406 AND TOOK HIM TO THE OFFICE WHERE HE CLOSED
 THE DOOR.  FITE INFORMED CARR THAT HE WAS GOING TO BE TERMINATED.
 ACCORDING TO CARR, WHOM I CREDIT, FITE TOLD HIM THAT HIS WORK WAS NOT UP
 TO PAR, THAT HE WAS SPENDING TOO MUCH TIME OFF HANDLING UNION BUSINESS,
 AND THAT HE WAS GONE FROM WORK TOO MUCH.  CARR ASKED FITE FOR A GREEN
 SLIP TO TALK TO CHIEF STEWARD BROWN.  FITE DENIED CARR THE OPPORTUNITY
 TO CONSULT WITH THE CHIEF STEWARD, TELLING HIM HE COULD DO THAT ON
 NON-DUTY TIME.  THEREAFTER, CARR CONTACTED DELLA YOST AND TOLD HER THAT
 HE HAD BEEN TERMINATED FOR SPENDING TOO MUCH TIME ON UNION BUSINESS.
 /7/
 
    12.  ON JUNE 16, 1980, CARR REQUESTED OF FITE EIGHT HOURS OF ANNUAL
 LEAVE FOR A JOB INTERVIEW IN LONG BEACH.  IN WHAT APPEARS TO BE A
 PARTICULARLY VINDICTIVE ACTION, FITE DENIED CARR THE LEAVE.  CARR THEN
 CONTACTED CHIEF STEWARD BROWN WHO THEN MET WITH CARR.  AFTER LUNCH THEY
 MET WITH FITE AND DISCUSSED FITE'S DENIAL OF THE LEAVE. FITE INDICATED
 HE WOULD APPROVE THE LEAVE IF BROWN VERIFIED THE INTERVIEW;  BROWN SAID
 THAT THAT WAS INAPPROPRIATE AND RIDICULOUS.  CARR LEFT THE MEETING AND
 BROWN TALKED FURTHER WITH FITE.  BROWN ASKED FITE IF THERE WAS ANY
 ACTIONS PENDING AGAINST CARR.  FITE SAID HE HAD MADE A RECOMMENDATION
 FOR CARR'S "USE OF ANNUAL LEAVE, SICK LEAVE, MILITARY LEAVE AND TIME OFF
 THE JOB FOR UNION AFFAIRS." /8/
 
    13.  LATER ON JUNE 16, 1980, FITE TOOK CARR AND ANOTHER EMPLOYEE TO
 THE NEBO BASE WHERE THEY DROPPED OF SIGNS TO BE PAINTED.  WITHOUT
 EXPLANATION, FITE TOOK CARR INTO THE MATERIEL DIVISION BUILDING TO THE
 MOWASP BRANCH DIRECTOR'S OFFICE WHERE CARR WAS HANDED A LETTER OF
 TERMINATION DATED JUNE 16, 1980, AND EFFECTIVE JUNE 27, 1980 (G.C. EXH.
 NO. 12).  THE JUNE 16 LETTER SIGNED BY ACTING DIRECTOR JAMES BLAIR OF
 MATERIEL DIVISION STATED THAT CARR'S EMPLOYMENT WAS BEING TERMINATED
 BECAUSE OF HIS USE, DURING THE PERIOD SEPTEMBER 26, 1979 TO JUNE 10,
 1980, OF 72 HOURS OF LEAVE (32 HOURS OF WHICH WERE CLAIMED TO BE
 UNSCHEDULED) AND 66 HOURS OF SICK LEAVE (50.5 OF WHICH WERE ALLEGED TO
 HAVE BEEN IN CONJUNCTION WITH A WEEKEND).  IN ADDITION, THE LETTER CITED
 THREE INSTANCES OF TARDINESS (G.C. EXH. NO. 12).  /9/
 
    14. SOMETIME SHORTLY AFTER CARR RECEIVED THE JUNE 16, 1980, NOTICE OF
 REMOVAL, UNION PRESIDENT WARE ATTEMPTED TO ARRANGE A MEETING WITH ACTING
 DIRECTOR BLAIR TO GIVE CARR A CHANCE TO GIVE HIS SIDE OF THE STORY TO
 THE MANAGER WITH DECISION-MAKING AUTHORITY.  BLAIR REFUSED SUCH A
 MEETING INDICATING THAT THE MAN (CARR) WAS GOING OUT AND THAT WAS ALL
 THERE WAS TO IT.  CARR'S LAST DAY OF EMPLOYMENT WAS JUNE 27, 1980.
 
              PROCEDURAL RULING-- SEQUESTRATION OF WITNESSES
 
    AT THE COMMENCEMENT OF THE HEARING, THERE WERE NOT WITNESSES IN THE
 COURTROOM AND THE UNDERSIGNED ASSUMED THAT THE PARTIES THEMSELVES HAD
 AGREED UPON THE SEQUESTRATION OF WITNESSES.  THE FIRST WITNESS FOR THE
 GENERAL COUNSEL WAS CHARLES WARE, UNION PRESIDENT.  UPON COMPLETION OF
 HIS TESTIMONY THE GENERAL COUNSEL REQUESTED THAT WARE BE PERMITTED TO
 REMAIN IN THE COURTROOM AS A TECHNICAL ASSISTANT INASMUCH AS HE WAS THE
 CHARGING PARTY.  THE REQUEST WAS GRANTED (TR. 34, 35). THE SECOND
 WITNESS WAS OSCAR CARR WHO WAS "NAMED IN" THE CHARGE AS THE ALLEGED
 DISCRIMINATE IN THIS CASE.  CARR WAS NOT THE CHARGING PARTY ALTHOUGH HE
 HAPPENED TO HAVE SIGNED THE CHARGE ON BEHALF OF THE CHARGING PARTY.
 UPON CONCLUSION OF HIS TESTIMONY, THE GENERAL COUNSEL REQUESTED THAT
 CARR BE PERMITTED TO REMAIN IN THE COURTROOM.  RESPONDENT OBJECTED
 UNLESS THE GENERAL COUNSEL WAIVED HIS RIGHT TO RECALL CARR AS A REBUTTAL
 WITNESS.
 
    THE GENERAL COUNSEL NOTED THAT THERE HAD BEEN NO SEQUESTRATION OF
 WITNESSES (BY THE JUDGE).  TO THIS, RESPONDENT ASSERTED THAT IT HAD
 ASSUMED THAT ALL WITNESSES HAD BEEN SEQUESTRATED PURSUANT TO A "GENERAL"
 AGREEMENT ENTERED INTO A PRIOR CASE AND ASSUMED TO BE APPLICABLE TO ALL
 CASES (TR. 106).  HAVING HEARD THE TESTIMONY OF CARR, AND NOTING THAT
 DETERMINATION OF THE ISSUE NECESSARILY WOULD HINGE UPON CLOSE
 CREDIBILITY RESOLUTIONS, I EXERCISED MY DISCRETION TO TREAT CARR IN THE
 SAME MANNER AS ANY OTHER WITNESS AND REFUSED TO PERMIT HIM TO REMAIN IN
 THE COURTROOM WHILE OTHER WITNESSES ON BOTH SIDES WOULD BE GIVING
 TESTIMONY.  I REMINDED THE GENERAL COUNSEL THAT HE COULD, OF COURSE,
 CALL CARR AS A REBUTTAL WITNESS SHOULD HE SO DESIRE.  THE GENERAL
 COUNSEL TAKES EXCEPTION TO MY RULING AND IN HIS BRIEF REQUESTS "THAT THE
 ADMINISTRATIVE LAW JUDGE RULE ON THIS OBJECTION IN HIS DECISION IN ORDER
 TO PUT THIS QUESTION SQUARELY BEFORE THE AUTHORITY FOR DECISION." IN THE
 PAGES THAT FOLLOW I HAVE ATTEMPTED TO ACCOMMODATE THIS REQUEST.
 
    AT THE OUTSET, I WOULD POINT OUT THAT MOST OF THE DECIDED CASES ON
 THIS SUBJECT USUALLY ARISE IN THE CONTEXT OF WHETHER IT IS AN ABUSE OF
 DISCRETION FOR A JUDGE TO REFUSE TO EXCLUDE WITNESSES WHO ARE ALLEGED
 DISCRIMINATES.  HERE, I HAVE DONE JUST THE OPPOSITE;  I HAVE EXCLUDED AN
 ALLEGED DISCRIMINATE WHO, THE GENERAL COUNSEL ARGUES, HAD A RIGHT TO
 REMAIN IN THE COURTROOM.  IN THIS REGARD, THE GENERAL COUNSEL RELIES ON
 POLICY OF THE NATIONAL LABOR RELATIONS BOARD, TO BE DISCUSSED LATER IN
 THIS DECISION.
 
    SECTION 2423.19(R) OF THE AUTHORITY'S RULES AND REGULATIONS GIVES AN
 ADMINISTRATIVE LAW JUDGE THE AUTHORITY TO-- "SEQUESTER WITNESSES WHERE
 APPROPRIATE." EVEN IF THE WITNESS IS A "PARTY" UNDER SECTION 2423.16, IT
 IS CLEAR THAT "THE PARTICIPATION OF ANY PARTY SHALL BE LIMITED TO THE
 EXTENT PRESCRIBED BY THE ADMINISTRATIVE LAW JUDGE." ACCORDINGLY, IN THE
 ABSENCE OF ANY RULE OR POLICY TO THE CONTRARY, I CONCLUDE THAT THERE IS
 NO LIMITATION ON MY DISCRETION IN THIS MATTER. WHETHER THERE SHOULD BE
 SOME LIMITATION DEPENDS UPON WHETHER THE AUTHORITY WANTS TO ADOPT A
 CONTROVERSIAL POLICY PROMULGATED BY A MAJORITY OF THE NATIONAL LABOR
 RELATIONS BOARD MEMBERS, OR WHETHER IT WISHES TO ADOPT THE THINKING
 EXPRESSED IN NUMEROUS COURT DECISIONS ON THIS SUBJECT.
 
    THE ISSUE BEFORE THE AUTHORITY IN THIS CASE IS SIMPLY THIS:  DID I
 ABUSE MY DISCRETION BY EXCLUDING CARR AND, IF I DID, WAS THIS
 PREJUDICIAL ERROR?
 
    THE LEAD CASE ON SEQUESTRATION OF WITNESSES IN UNFAIR LABOR PRACTICE
 HEARING IS N.L.R.B. V. STARK, 525 F.2D 422 (C.A. 2, 1975), 90 LRRM 3076,
 CERT.  DENIED 424 U.S. 967(1976), WHERE DISTINGUISHED JUDGE ALFRED
 FRIENDLY, SPEAKING FOR THE COURT OF APPEALS FOR THE SECOND CIRCUIT,
 SEVERELY CRITICIZED THE NATIONAL LABOR RELATIONS BOARD'S POLICY OF
 PERMITTING ALLEGED DISCRIMINATES TO REMAIN IN THE COURTROOM WHILE OTHER
 WITNESSES WERE TESTIFYING.  AS POINTED OUT BY THE COURT, IT WAS A
 LONG-STANDING POLICY OF THE FEDERAL COURTS TO GIVE THE TRIAL JUDGE
 DISCRETION TO EXCLUDE WITNESSES.  EFFECTIVE JULY 1, 1976, HOWEVER, RULE
 615 OF THE FEDERAL RULES OF EVIDENCE WENT EVEN FURTHER AND ADOPTED A
 "MANDATORY EXCLUSION" RULE LONG ADVOCATED BY WIGMORE, AN EMINENT
 AUTHORITY ON THE RULES OF EVIDENCE.
 
    IN HIS LENGTHLY AND ERUDITE DISCUSSION OF THE ISSUES, JUDGE FRIENDLY
 REFERRED TO PRIOR DECISIONS OF OTHER FEDERAL COURTS AS FOLLOWS:
 
    EVEN BEFORE THE TIGHTENING EFFECTED BY THE TAFT-HARTLEY ACT, THE
 BOARD HAD RECEIVED TWO
 
    JUDICIAL INSTRUCTIONS WITH RESPECT TO APPLICATION OF "THE RULE." IN
 N.L.R.B. V. QUALITY &
 
    SERVICE LAUNDRY, INC., 131 F.2D 182, 183, 11 LRRM 621 (4 CIR.  1932),
 CERT. DENIED, 318
 
    U.S. 775, 12 LRRM 890(1943), A DISTINGUISHED PANEL (PARKER, SOPER AND
 DOBIE, C.J.J.) ADVISED,
 
    IN A PER CURIAM OPINION, THAT IN COURTS OF LAW THE ISSUE WHETHER OR
 NOT WITNESSES ARE TO BE
 
    SEPARATED "IS A MATTER RESTING IN THE SOUND DISCRETION OF THE TRIAL
 COURT" AND THAT THE SAME
 
    PRINCIPLE "SHOULD BE APPLIED TO HEARINGS BEFORE THE BOARD OR ITS
 EXAMINERS." SHORTLY
 
    THEREAFTER, JUDGE FLORENCE ALLEN, WRITING IN N.L.R.B. V. BURKE MACH.
 TOOL CO., 133 F.2D 618,
 
    621, 12 LRRM 546 (6 CIR. 1943), PUT THE MATTER MORE POSITIVELY:
 
    THE BREADTH OF THE BOARD'S POWER EMPHASIZES THE IMPORTANCE OF
 STRIVING FOR THAT ATMOSPHERE
 
    OF PERFECT IMPARTIALITY WHICH IS SO MUCH TO BE DESIRED IN ANY HEARING
 TO SETTLE CONTROVERSIAL
 
    ISSUES.  RULINGS AS TO THE RECEPTION OF EVIDENCE AND THE GENERAL
 CONDUCT OF HEARINGS SHOULD
 
    NOT ONLY KEEP WITHIN THE BOUNDS OF BOARD DISCRETION NECESSARILY
 IMPOSED UPON THE TRIAL
 
    EXAMINER BUT ALSO REFLECT AN ENDEAVOR TO IMPRESS THE EMPLOYER, AS
 WELL AS THE EMPLOYEE, THAT
 
    EVERY REASONABLE EFFORT HAS BEEN MADE TO ENABLE ALL PARTIES TO
 PRESENT THEIR THEORY OF WHAT
 
    HAS TRANSPIRED.
 
    IN DECIDING WHETHER TO ENFORCE THE BOARD'S DECISION, THE COURT IN
 STARK SET FORTH THE ISSUE IN THIS MANNER:
 
    HAD THIS BEEN A COURT TRIAL INVOLVING ORDINARY WITNESSES, IT WOULD
 HAVE CONSTITUTED A
 
    CLASSIC CASE FOR SEQUESTRATION-- A PRINCIPLE WHOSE LINEAGE IS TRACED
 BACK TO DANIEL'S
 
    EFFECTIVE CROSS-EXAMINATION OF THE ELDERS WHO TRADUCED SUSANNA, SEE 6
 WIGMORE, EVIDENCE
 
    SEC. 1837 AT 347-48 (3D ED. 1940), AND WHOSE HIGH STANDING IN THE LAW
 OF EVIDENCE IS ATTESTED
 
    BY THE QUAINT PRACTICE OF REFERRING TO IT SIMPLY AS "THE RULE." THE
 QUESTIONS FOR US ARE
 
    WHETHER A COURT SHOULD REQUIRE THE NLRB TO APPLY "THE RULE" TO UNFAIR
 LABOR PRACTICE
 
    PROCEEDINGS AND, IF THAT QUESTION BE ANSWERED AFFIRMATIVELY, WHAT
 SIGNIFICANCE SHOULD BE GIVEN
 
    TO THE FACT THAT PARTICULAR WITNESSES ARE ALLEGED DISCRIMINATES.
 
    IN CONCLUDING THAT "THE RULE" SHOULD BE APPLIED IN NLRB HEARINGS EVEN
 WHERE THE WITNESSES ARE ALLEGED DISCRIMINATES, THE COURT FURTHER STATED:
 
    EXCLUSION OF DISCRIMINATES FOR A PORTION OF THE HEARING, EVEN IF IT
 WERE TO BE ASSUMED
 
    THAT, BECAUSE OF RULE 615, PERSONS SIMILARILY SITUATED COULD NOT NOW
 BE EXCLUDED IN A SIMILAR
 
    TYPE OF ACTION IN A DISTRICT COURT-- AN ASSUMPTION WHICH MAY OR MAY
 NOT BE VALID-- WOULD BE A
 
    SMALL PRICE FOR THEM TO PAY FOR THE GENERAL COUNSEL'S PROSECUTING THE
 COMPLAINT ON THEIR
 
    BEHALF.  WEIGHING THE RELATIVE IMPORTANCE OF THE PRESENCE OF A
 DISCRIMINATE AT EVERY MOMENT OF
 
    THE TRIAL TO THE ZEALOUS ADVOCACY OF HIS CAUSE AGAINST THE DANGER
 THAT HIS FINANCIAL INTEREST
 
    MAKES THE TEMPTATION TO PERJURY GREAT, AND CONSIDERING THE IMBALANCE
 FROM FAILURE TO APPLY
 
    "THE RULE" TO DISCRIMINATES WHILE IT WOULD GENERALLY BE APPLICABLE
 AGAINST THE EMPLOYER, WE
 
    THINK THAT THE ALJ SHOULD HAVE AUTHORITY TO APPLY "THE RULE" TO
 DISCRIMINATE AND THAT, WHERE
 
    SEVERAL DISCRIMINATES ARE TO BE CALLED AS WITNESSES TO THE SAME
 INCIDENT, THE PRESUMPTION IN
 
    FAVOR OF SEQUESTRATION DURING SUCH TESTIMONY COULD BE REBUTTED, IF AT
 ALL, ONLY BY A
 
    PARTICULARIZED SHOWING OF NEED FOR THE DISCRIMINATES TO HEAR EACH
 OTHER'S EVIDENCE-- A SHOWING
 
    WE FIND EXTREMELY HARD TO VISUALIZE.  AS MAY BE SEEN FROM THE ABOVE,
 AND FROM A READING OF THE COMPLETE TEXT, THE COURT IN STARK WAS ALSO
 TROUBLED BY THE QUESTION OF WHETHER A DISCRIMINATE WHO IS A "PARTY"
 UNDER THE BOARD'S REGULATIONS SHOULD THEREFORE BE EXEMPTED FROM THE
 MANDATORY SEQUESTRATION "RULE" NOTWITHSTANDING THE CLEAR EXEMPTION IN
 VIEW FEDERAL RULE 615.
 
    IF THERE WERE ANY DOUBT ABOUT THE SECOND CIRCUIT'S INSISTENCE THAT
 THE NATIONAL LABOR RELATIONS BOARD RECONSIDER ITS POLICY, ONE NEED ONLY
 REFER TO THE FLORSHEIM SHOE STORE CO. OF PITTSBURGH V. N.L.R.B., 565
 F.2D 1240 (C.A. 2 1977) WHERE IT STATED:
 
    "NEVERTHELESS, IT IS LESS THAN SATISFACTORY THAT FIVE MONTHS AFTER
 THE VERY COMPLETE
 
    DISCUSSION IN NLRB V. STARK, 2D CIR. 1975, 525 F.2D 422, 426-430, OF
 THE MATTER OF
 
    SEQUESTERING DISCRIMINATES WHO ARE TO BE CALLED AS WITNESSES IN BOARD
 PROCEEDINGS, THERE IS NO
 
    INDICATION THAT THE MATTER OF SEQUESTRATION HAS BEEN RECONSIDERED.  .
 . .  IT IS TRUSTED THAT
 
    THE BOARD WILL CONSIDER THE MATTER IN THE VERY NEAR FUTURE, IF IT HAS
 NOT ALREADY DONE SO." IN THE MEANTIME, THE SECOND CIRCUIT'S VIEWS AS
 EXPRESSED IN STARK RECEIVED APPROVAL, IN WHOLE IT IN PART, BY OTHER
 CIRCUIT COURTS.  HALE MANUFACTURING COMPANY, INC., 570 F.2D 705 (C.A.
 8);  STURGIS NEWPORT BUSINESS FORMS, INC., 563 F.2D 1252 (C.A. 5);  AND
 L.S. AYRES & COMPANY, 551 F.2D 586 (C.A. 4).
 
    EVENTUALLY, THE BOARD DID RECONSIDER AND CHANGE ITS POLICY IN UNGA
 PAINTING CORPORATION, 237 NLRB 1306, AND IT PURPORTED TO FOLLOW STARK,
 AT LEAST IN PART, BY THE FORMULATION OF THE FOLLOWING RULE:
 
    WEIGHING THE IMPORTANCE OF A DISCRIMINATEE'S UNRESTRICTED PRESENCE
 DURING THE BOARD HEARING
 
    WITH THE OBJECTIVES OF THE EXCLUSION PROCESS AND OVERALL PURPOSES OF
 THE ACT, WE HAVE DECIDED
 
    TO ALTER OUR EXISTING PRACTICE AND TO EXCLUDE DISCRIMINATES FROM
 HEARING TO A LIMITED
 
    EXTENT.  SPECIFICALLY, ALLEGED DISCRIMINATES SHOULD BE EXCLUDED ONLY
 DURING THAT PORTION OF
 
    THE HEARING WHEN ANOTHER OF THE GENERAL COUNSEL'S OR CHARGING PARTY'S
 WITNESSES IS TESTIFYING
 
    ABOUT EVENTS TO WHICH THE DISCRIMINATES HAVE TESTIFIED, OR WILL OR
 MAY TESTIFY, EITHER IN THE
 
    CASE-IN-CHIEF OR ON REBUTTAL, UNLESS, IN THE JUDGMENT OF THE
 ADMINISTRATIVE LAW JUDGE, THERE
 
    ARE SPECIAL CIRCUMSTANCES WARRANTING THE UNRESTRICTED PRESENCE OF
 DISCRIMINATES OR TOTAL
 
    EXCLUSION WHEN NOT TESTIFYING.  THE BOARD'S DECISION WAS NOT
 UNANIMOUS.  MEMBER BETTY SOUTHARD MURPHY WROTE A LENGTHY DISSENTING
 OPINION, WITH WHICH I AGREE, STRONGLY TAKING ISSUE WITH THE BOARD'S NEW
 RULE AND REASONS THEREFOR.  AS SHE CORRECTLY POINTED OUT, THE BOARD'S
 NEW RULE COULD BE CUMBERSOME TO ADMINISTER AND "TURN THE HEARING ROOM
 INTO A REVOLVING DOOR WITHOUT A TURNSTILE." INSTEAD, MEMBER MURPHY
 PROPOSED THAT FEDERAL RULE 615 BE APPLIED WITHOUT LIMITATION.  THUS,
 WITH RESPECT TO DISCRIMINATES WHO ARE NOT PARTIES, RULE 615 DOES NOT
 ACCORD THEM ADDITIONAL RIGHTS AND, INDEED, REQUIRES THEIR EXCLUSION
 EXCEPT WHERE IT IS SHOWN THAT A PARTICULAR DISCRIMINATEE'S PRESENCE IS
 ESSENTIAL TO THE PRESENTATION. UNLIKE THE BOARD MAJORITY IN UNGA
 PAINTING, DISSENTING MEMBER MURPHY WOULD PERMIT DISCRIMINATES WHO ARE
 PARTIES TO PARTICIPATE FULLY, SHOULD THEY SO DESIRE, IN ACCORDANCE WITH
 RULE 615 AND THE BOARD'S OWN RULES AND REGULATIONS.
 
    AS A JUDGE, I AM CONCERNED ABOUT THE PROSPECT OF PERMITTING ANY
 DISCRIMINATE TO LISTEN TO ALL THE TESTIMONY AND THEN BE CALLED AS A
 REBUTTAL WITNESS.  IN MY OPINION, THIS APPEARS TO GIVE AN UNFAIR AND
 UNNECESSARY ADVANTAGE TO THE PROSECUTOR;  I.E., THE GENERAL COUNSEL.
 NEVERTHELESS, I RECOGNIZE THAT WHERE THE DISCRIMINATE IS A PARTY, HE OR
 SHE SHOULD HAVE THE TRADITIONAL RIGHTS ACCORDED TO PARTIES. MEMBER
 MURPHY'S SOLUTION TO THIS PROBLEM IS AS FOLLOWS:
 
    WHATEVER REBUTTAL TESTIMONY THEY GIVE MAY BE VIEWED IN LIGHT OF THE
 FACT THAT THEY HEARD
 
    THE TESTIMONY OF OTHER WITNESSES-- AND PROPERLY SO.  IN THE EVENT
 THERE IS MORE THAN ONE
 
    CHARGING PARTY, PERHAPS ONE OR MORE OF THEM CAN BE PERSUADED TO LEAVE
 DURING THE TESTIMONY OF
 
    THE OTHERS-- OR, ALTERNATIVELY, THEIR TESTIMONY CAN BE EVALUATED BY
 THE ADMINISTRATION LAW
 
    JUDGE IN LIGHT OF THE FACT THAT THEY HAD ALREADY HEARD RELATED
 TESTIMONY.  THIS IS NOT A REAL
 
    PROBLEM WHEN BALANCED AGAINST DUE PROCESS REQUIREMENTS;  IF THEY ARE
 NOT ALLOWED TO BE PRESENT
 
    AT ALL TIMES, THEY BASICALLY WILL BE WITHOUT RIGHTS UNDER SECTION
 102.38, OR AT LEAST THEY
 
    WILL NOT BE ABLE TO EXERCISE THEIR RIGHTS WITHOUT OBTAINING COUNSEL
 TO REPRESENT THEM.  THUS,
 
    THEY WILL NOT, AS A PRACTICAL MATTER, BE ABLE TO CALL AND EXAMINE
 THEIR OWN WITNESSES OR TO
 
    CROSS-EXAMINE WITNESSES CALLED BY GENERAL COUNSEL OR ANOTHER CHARGING
 PARTY.  AS A PRACTICAL MATTER THE PROBLEM SHOULD NOT COME UP TOO OFTEN
 SINCE MOST CHARGES ARE FILED BY UNIONS ON BEHALF OF EMPLOYEES.
 
    I TURN NOW TO THE QUESTION OF WHAT POLICY, IF ANY, SHOULD BE ADOPTED
 BY THE AUTHORITY.  UNLIKE CASES ARISING IN THE PRIVATE SECTOR, IT MAY BE
 THAT THIS WILL NOT BE A CONSTANTLY RECURRING PROBLEM IN THE FEDERAL
 SECTOR.  FURTHER, I WOULD NOTE THAT WHILE THE CIRCUMSTANCES OF THIS CASE
 DO NOT NECESSARILY REQUIRE FORMULATION OF A POLICY AT THIS TIME, I
 BELIEVE THAT IT WOULD BE HELPFUL TO HAVE A UNIFORM POLICY IN THE
 INTERESTS OF JUSTICE AND AN EFFECTIVE ADMINISTRATION OF THE STATUTE.
 
    IT IS WELL ESTABLISHED UNDER THE EXECUTIVE ORDER, AND EQUALLY
 APPLICABLE UNDER THE STATUTE, THAT THE FEDERAL LABOR RELATIONS AUTHORITY
 IS NOT BOUND BY POLICIES AND DECISIONAL PRECEDENTS OF THE NATIONAL LABOR
 RELATIONS BOARD, ALTHOUGH SUCH DECISIONS MAY OFFER SOME GUIDANCE AND
 ASSISTANCE.  RATHER, THE AUTHORITY RESERVES THE RIGHT AS AN INDEPENDENT
 AGENCY TO FORMULATE ITS OWN POLICIES.  IN SO DOING, THE AUTHORITY WOULD
 CERTAINLY EXAMINE, AND CONSIDER HOW WELL THE POLICIES OF A SISTER AGENCY
 LIKE THE NLRB HAVE FARED IN THE UNITED STATES COURT OF APPEALS BECAUSE
 THESE SAME CIRCUIT COURTS HAVE JURISDICTION TO REVIEW AUTHORITY
 DECISIONS UNDER SECTION 7123 OF THE STATUTE.
 
    ALSO OF CONSIDERATION HERE IS THE FACT THAT THE AUTHORITY, UNLIKE THE
 BOARD, IS NOT REQUIRED BY STATUTE TO FOLLOW THE FEDERAL RULES OF
 EVIDENCE "SO FAR AS PRACTICABLE." INDEED, SECTION 2423.17 OF THE
 AUTHORITY'S REGULATIONS STATES THAT THE "PARTIES SHALL NOT BE BOUND BY
 THE RULES OF EVIDENCE, WHETHER STATUTORY, COMMON LAW, OR ADOPTED BY
 COURT." ACCORDINGLY, THE AUTHORITY HAS SUBSTANTIAL LATITUDE IN DECIDING
 HOW THIS QUESTION SHOULD BE RESOLVED.
 
    IN MY OPINION, SUBSTANTIAL WEIGHT SHOULD BE PLACED ON THE VIEWS OF
 THE FEDERAL COURTS AND THE CHOICE SHOULD BE MADE BETWEEN THE OLD RULE--
 WHERE THE DECISION TO EXCLUDE WITNESSES IS COMPLETELY DISCRETIONARY WITH
 THE JUDGE;  OR THE NEW RULE (FEDERAL RULE 615)-- WHERE SEQUESTRATION OF
 WITNESSES (EXCEPT PARTIES) IS A MATTER OF RIGHT.  THIS LATTER RULE IS
 SET FORTH IN THE FEDERAL RULES OF EVIDENCE AS FOLLOWS:
 
    RULE 615.  EXCLUSION OF WITNESSES
 
    AT THE REQUEST OF A PARTY THE COURT SHALL ORDER WITNESSES EXCLUDED SO
 THAT THEY CANNOT HEAR
 
    THE TESTIMONY OF OTHER WITNESSES, AND IT MAY MAKE THE ORDER OF ITS
 OWN MOTION.  THIS RULES
 
    DOES NOT AUTHORIZE EXCLUSION OF (1) A PARTY WHO IS A NATURAL PERSON,
 OR (2) AN OFFICER OR
 
    EMPLOYEE OF A PARTY WHICH IS NOT A NATURAL PERSON DESIGNATED AS ITS
 REPRESENTATIVE BY ITS
 
    ATTORNEY, OR (3) A PERSON WHOSE PRESENCE IS SHOWN BY A PARTY TO BE
 ESSENTIAL TO THE
 
    PRESENTATION OF HIS CAUSE.  FOR THE REASONS EXPRESSED IN THE
 DISSENTING OPINION IN UNGA PAINTING, SUPRA, I WOULD RECOMMEND FOLLOWING
 FEDERAL RULE 615.
 
    AT THE BEGINNING OF THIS DISCUSSION I POINTED OUT THAT THE GENERAL
 COUNSEL OBJECTED TO MY RULING EXCLUDING CARR AND REQUESTED THAT I RULE
 ON THIS OBJECTION IN MY DECISION IN ORDER "TO PUT THIS QUESTION SQUARELY
 BEFORE THE AUTHORITY FOR DECISION." BASED UPON MY REVIEW OF THE MATTER
 AND MY ANALYSIS OF THE APPLICABLE PRECEDENT, I CONCLUDE THAT I HAD THE
 DISCRETION TO MAKE THE RULING, THAT I DID NOT ABUSE MY DISCRETION, AND
 THAT THE GENERAL COUNSEL HAS FAILED TO SHOW ANY PREJUDICE TO CARR AS THE
 RESULT OF MY DECISION.  ACCORDINGLY, I ADHERE TO THAT RULING.
 
                     DISCUSSION AND CONCLUSIONS OF LAW
 
    SECTION 7102 OF THE STATUTE GUARANTEES TO EACH EMPLOYEE OF THE
 FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR ORGANIZATION OR TO REFRAIN
 FROM SUCH ACTIVITY.  AGENCY MANAGEMENT'S ABRIDGEMENT OF THESE RIGHTS BY
 DISCRIMINATION IN REGARD TO HIRING, TENURE, PROTECTION OR OTHER
 CONDITIONS OR EMPLOYMENT IS VIOLATIVE OF SECTION 7116(A)(2).
 
    TO FIND A SECTION 7116(A)(2) VIOLATION, THE EVIDENCE MUST SHOW THAT
 AGENCY MANAGEMENT HAS DISCRIMINATORILY AFFECTED THE EMPLOYEE'S TERMS AND
 CONDITIONS OF EMPLOYMENT BASED UPON UNION CONSIDERATIONS.  /10/ THUS, IN
 THE INSTANT CASE THERE WILL BE A VIOLATION IF IT IS SHOWN THAT CARR'S
 ACTIVITY AS A UNION STEWARD WAS A REASON FOR HIS BEING DISCHARGED AND
 THAT RESPONDENT'S ASSERTED REASONS OF ALLEGED LEAVE ABUSE WAS A MERE
 PRETEXT FOR THE DISCHARGE.  BUT, IT ALSO WILL BE FOUND TO BE A VIOLATION
 IF THIS TURNS OUT TO BE A "MIXED MOTIVE" SITUATION;  I.E. WHERE A
 LEGITIMATE BASIS FOR MANAGEMENT ACTION EXISTS, BUT WHERE UNION
 CONSIDERATIONS ALSO ARE SHOWN TO HAVE PLAYED A PART.  /11/
 
    IN MY OPINION RESPONDENT HAS NOT SATISFACTORILY DEMONSTRATED THAT THE
 DISCHARGE OF CARR WAS "IN THE WORKS" PRIOR TO HIS ACTIVITY AS A UNION
 STEWARD AND THAT HE WOULD HAVE BEEN DISCHARGED ON JUNE 16 IN ANY EVENT
 BECAUSE OF HIS ALLEGEDLY POOR LEAVE RECORD.  /12/ THEREFORE, I DO NOT
 REGARD THIS AS A TYPICAL "MIXED MOTIVE" CASE. IT IS MY OPINION THAT
 CARR'S ACTIVITIES AS A UNION STEWARD, WHICH REQUIRED HIM TO BE ABSENT
 FROM HIS WORK SITE TO INVESTIGATE GRIEVANCES AND OTHER MATTERS,
 TRIGGERED RESPONDENT'S DECISION TO DISCHARGE HIM AND THAT HIS ALLEGEDLY
 POOR LEAVE RECORD WAS A PRETEXT TO COVER UP THE REAL REASON FOR THE
 DISCHARGE.
 
    IN REACHING THESE CONCLUSIONS, I NOTE THAT FROM THE DATE OF CARR'S
 HIRING ON SEPTEMBER 26, 1979 UNTIL HIS SECOND WRITTEN EVALUATION ON
 APRIL 15, CARR'S PUNCTUALITY AND ATTENDANCE WAS RATED AS "REGULAR" AND
 THERE IS NO EVIDENCE OF ANY WRITTEN WARNINGS ADMONISHING HIM THAT HE HAD
 A PROBLEM WITH LEAVE USAGE THAT NEEDED TO BE CORRECTED. /13/ FROM APRIL
 15 TO MAY 28, CARR'S ABSENCES DURING THIS PERIOD ON MILITARY, ANNUAL AND
 SICK LEAVE WERE ALL APPROVED BY RESPONDENT'S SUPERVISOR.  IT WAS ONLY
 AFTER CARR BEGAN TO COMMENCE ACTIVITIES AS A UNION STEWARD THAT LEAVE
 USAGE BECAME A "PROBLEM." THE PERSON WHO WAS MOST CONCERNED ABOUT CARR'S
 ACTIVITIES WAS GENERAL FOREMAN WATKINS, NOT FITE.  WHEN WATKINS FOUND
 OUT THAT FITE HAS APPROVED 5 DAYS ANNUAL LEAVE IN ADDITION TO TWO WEEKS
 MILITARY LEAVE, HE WAS UPSET AND CHEWED FITE OUT.  ACCORDING TO WATKINS
 HE HAD NEVER HEARD OF MILITARY LEAVE BEING ANYTHING BUT TWO
 "CONSECUTIVE" WEEKS.  WATKINS WAS CONCERNED THAT CARR WOULD NOT HAVE ANY
 LEAVE REMAINING FOR THE USUAL CHRISTMAS SHUTDOWN.  AFTER CARR BECAME A
 STEWARD, WATKINS ADMITS TELLING FITE HE THOUGHT THAT CARR WAS USING AN
 "EXCESSIVE AMOUNT" OF TIME FOR UNION BUSINESS (TR. 207, 238).  WATKINS'
 STATEMENT TO FITE WAS NOT MADE IN THE PRESENCE OF ANY EMPLOYEES, BUT
 WATKINS'S FEELINGS WERE SOON KNOWN TO EMPLOYEES.  THUS, ON JUNE 11,
 WATKINS HAD OCCASION TO TELL CARR (IN PERSON) AND TO DELLA YOST (ON THE
 TELEPHONE) THAT CARR WAS TAKING OFF TOO MUCH TIME FOR UNION BUSINESS.
 IN MY OPINION SUCH STATEMENTS TEND TO DISCOURAGE EMPLOYEES IN THEIR
 RIGHT TO ENGAGE IN PROTECTED UNION ACTIVITY AND CONSTITUTE A VIOLATION
 OF SECTION 7116(A)(1).  ALSO, ON JUNE 11, WATKINS RESTRICTED CARR TO
 ONLY ONE HOUR TO HANDLE THE ASSIGNED GRIEVANCE.  /14/ SINCE THERE WAS NO
 CONTRACT PROVISION LIMITING THE TIME TO BE SPENT ON GRIEVANCES BY A
 STEWARD, THIS RESTRICTION INTERFERED WITH THE INVESTIGATION OF THE
 GRIEVANCE AND DISCOURAGED EMPLOYEES IN THEIR RIGHT TO ENGAGE IN ACTIVITY
 ON BEHALF OF THE UNION.  IN MY VIEW, THIS IS A SEPARATE AND ADDITIONAL
 VIOLATION OF SECTION 7116(A)(1).  /15/
 
    LATER THAT SAME DAY, JUNE 11, JOHN FITE TOLD CARR HE WAS RECOMMENDING
 HIS DISCHARGE BECAUSE HE WAS, AMONG OTHER THINGS, "TAKING TOO MUCH TIME
 OFF HANDLING UNION BUSINESS." THIS ALSO CONSTITUTES A SEPARATE VIOLATION
 OF SECTION 7116(A)(1) AS IT CLEARLY IS THE TYPE OF STATEMENT WHICH
 INTERFERES WITH, RESTRAINS AND COERCES AN EMPLOYEE IN THE EXERCISE OF A
 STATUTORY RIGHT, THE RIGHT TO CARRY OUT THE DUTIES OF A STEWARD;  I.E.
 INVESTIGATING GRIEVANCES.
 
    WITH THE FOREGOING VIOLATIONS OF SECTION 7116(A)(1) CLEARLY SHOWING
 ANTI-UNION ANIMUS BY RESPONDENT'S AGENTS, FITE AND WATKINS, AND NOTING
 THE TIMING OF CARR'S DISCHARGE IN RELATION TO HIS COMMENCEMENT OF
 STEWARD DUTIES, /16/ THE CONCLUSION IS INESCAPABLE THAT RESPONDENT
 DISCHARGED CARR BECAUSE OF HIS UNION ACTIVITIES.  BY SO DOING,
 RESPONDENT HAS DISCRIMINATED AGAINST CARR IN VIOLATION OF SECTION
 7116(A)(2), AND RESTRAINED AND COERCED HIM IN VIOLATION OF SECTION
 7116(A)(1). THE OBVIOUS CONSEQUENCE OF CARR'S DISCHARGE IS TO DISCOURAGE
 EMPLOYEES FROM JOINING AND ASSISTING A LABOR ORGANIZATION.  THIS IS
 INHERENTLY DESTRUCTIVE OF RIGHTS ASSURED BY THE STATUTE.
 
    HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED SECTION
 7116(A)(1) AND (2) OF THE STATUTE, I RECOMMEND THAT THE AUTHORITY ISSUE
 THE FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
 RULES AND REGULATIONS, U.S. FED. REG. 3482, 3510(1980), IT IS HEREBY
 ORDERED THAT MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA, SHALL:
 
    1. CEASE AND DESIST FROM:
 
    (A) TERMINATING, AND OTHERWISE DISCRIMINATING AGAINST, EMPLOYEES
 BECAUSE OF THEIR
 
    ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 LOCAL 1482.
 
    (B) MAKING STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO MUCH
 TIME ON THEIR PROTECTED
 
    UNION ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1482.
 
    (C) INTERFERING WITH THE INVESTIGATION OF GRIEVANCES BY
 REPRESENTATIVES OF THE AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482.
 
    (D) MAKING STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
 RECOMMENDED BECAUSE OF THEIR
 
    PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL
 
    1482.
 
    (E) IN ANY LINE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ANY EMPLOYEE
 
    IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
    STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
 NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
 
    (A) UPON REQUEST, OFFER TO OSCAR CARR IMMEDIATE AND FULL
 REINSTATEMENT TO HIS FORMER
 
    POSITION OR, IF THAT POSITION NO LONGER EXISTS, TO A SUBSTANTIALLY
 EQUIVALENT POSITION,
 
    WITHOUT PREJUDICE TO HIS SENIORITY AND OTHER RIGHTS AND PRIVILEGES,
 AND MAKE HIM WHOLE FOR ANY
 
    LOSS OF BACK WAGES OR OTHER BENEFITS SUFFERED BECAUSE OF THE
 DISCRIMINATION AGAINST HIM.
 
    (B) POST AT ITS MARINE CORPS LOGISTICS BASE, BARSTOW, CALIFORNIA,
 COPIES OF THE ATTACHED
 
    NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY
 THE REGIONAL DIRECTOR FOR
 
    REGION 8, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL
 BE POSTED BY IT
 
    IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
 CONSECUTIVE DAYS THEREAFTER,
 
    IN CONSPICUOUS PLACES, INCLUDING ALL 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) NOTIFY THE REGIONAL DIRECTOR FOR REGION 8, IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
 
                         FRANCIS E. DOWD
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 10, 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 NOT TERMINATE, OR OTHERWISE DISCRIMINATE AGAINST, OUR
 EMPLOYEES BECAUSE OF THEIR ACTIVITIES ON BEHALF OF AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES LOCAL 1482.
 
    WE WILL OFFER TO OSCAR CARR IMMEDIATE AND FULL REINSTATEMENT TO HIS
 FORMER POSITION OR, IF THAT POSITION NO LONGER EXISTS, TO A
 SUBSTANTIALLY EQUIVALENT POSITION, WITHOUT PREJUDICE TO HIS SENIORITY
 AND OTHER RIGHTS AND PRIVILEGES, AND WE WILL MAKE HIM WHOLE FOR ANY LOSS
 OF BACK WAGES OR OTHER BENEFITS SUFFERED BECAUSE OF THE DISCRIMINATION
 AGAINST HIM.
 
    WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEY ARE SPENDING TOO
 MUCH TIME ON THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1482.
 
    WE WILL NOT INTERFERE WITH THE INVESTIGATION OF GRIEVANCES BY
 REPRESENTATIVES OF THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL
 1482.
 
    WE WILL NOT MAKE STATEMENTS TO EMPLOYEES THAT THEIR REMOVAL HAS BEEN
 RECOMMENDED BECAUSE OF THEIR PROTECTED UNION ACTIVITIES ON BEHALF OF
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1482.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE ANY EMPLOYEE IN THE EXERCISE OF THE RIGHTS GUARANTEED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                           (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
 MATERIALS.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
 REGION 8, 350 SOUTH FIGUEROA STREET 10TH FLOOR, LOS ANGELES, CA 90071;
 TELEPHONE:  (213) 688-3805;  FTS 798-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ NOTING THE GENERAL COUNSEL'S OBJECTIONS MADE BOTH AT THE HEARING
 AND IN ITS POST-HEARING BRIEF, THE ADMINISTRATIVE LAW JUDGE CONCLUDED IN
 HIS RECOMMENDED DECISION AND ORDER THAT HE PROPERLY RULED AT THE HEARING
 TO REQUESTER OSCAR CARR, THE DISCRIMINATE, DURING THE TESTIMONY OF OTHER
 WITNESSES. IN VIEW OF THE OUTCOME HEREIN, AND THE FACT THAT NO
 EXCEPTIONS WERE FILED TO THE JUDGE'S DECISION, THE AUTHORITY FINDS IT
 UNNECESSARY TO RULE ON THIS ISSUE.
 
    /2/ PARAGRAPH 2(A) OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER HAS BEEN CHANGED TO REFLECT THE REQUIREMENTS OF THE
 BACKPAY ACT, 5 U.S.C.  5596(B)(1)(A)(I), WHICH REQUIRES THAT BACKPAY BE
 OFFSET BY "AMOUNTS EARNED BY THE EMPLOYEE THROUGH OTHER EMPLOYMENT
 DURING THAT PERIOD . . ."
 
    /3/ AS NOTED BY RESPONDENT IN ITS WELL-PREPARED BRIEF, THIS CASE
 ESSENTIALLY INVOLVES FACTUAL QUESTIONS AND THIS IN TURN RESTS ON MAKING
 CREDIBILITY DETERMINATIONS.  I WAS NOT IMPRESSED WITH RESPONDENT'S
 WITNESSES FITE AND WATKINS AND UNABLE TO CREDIT THEIR TESTIMONY DENYING
 THE 7116(A)(1) STATEMENTS ATTRIBUTED TO THEM.  CARR WAS A MUCH MORE
 CREDIBLE AND PERSUASIVE WITNESS WHOSE TESTIMONY WAS BELIEVABLE,
 ESPECIALLY WHERE CORROBORATED BY YOST AND BROWN, BOTH OF WHOM WERE
 HIGHLY CONVINCING AND CREDIBLE WITNESSES.  ACCORDINGLY, I CREDIT CARR'S
 TESTIMONY.
 
    /4/ THE TRANSCRIPT WILL BE REFERRED TO HEREIN AS "TR." FOLLOWED BY
 REFERENCE TO THE APPROPRIATE PAGE AND LINE NUMBER.  GENERAL COUNSEL'S
 EXHIBITS WILL BE REFERRED TO HEREIN AS "G.C. EXH. NO." WITH THE
 APPROPRIATE EXHIBIT NUMBER THEREAFTER.
 
    /5/ FITE TESTIFIED THAT HE WENT TO THE FUNERAL AND RETURNED TO WORK
 AND THAT CARR WAS NOT A PALLBEARER.  FITE SAID HE NEVER SPOKE TO CARR
 ABOUT THAT.  FITE DID NOT TESTIFY THAT CARR WAS NOT AT THE FUNERAL.
 
    /6/ UNDER ARTICLE 22, SECTION 3 OF THE PARTIES NEGOTIATED AGREEMENT
 (G.C. EXH. NO. 8), A STEWARD MUST OBTAIN WRITTEN PERMISSION-- THE GREEN
 SLIP-- FROM HIS IMMEDIATE SUPERVISOR BEFORE LEAVING HIS ASSIGNED WORK
 AREA OR BUILDING TO RESPOND TO THE REQUEST OF AN EMPLOYEE TO INVESTIGATE
 A GRIEVANCE.
 
    /7/ RESPONDENT CORRECTLY NOTES THAT FITE'S REFERENCE TO UNION
 BUSINESS WAS NOT CONTAINED IN CARR'S JULY 12 SUMMARY OF THE EVENTS IN
 QUESTION (RESP. EXH. NO. 1).  HOWEVER, CARR'S TESTIMONY IS CORROBORATED
 BY YOST WHO TESTIFIED THAT IMMEDIATELY FOLLOWING CARR'S CONVERSATION
 WITH FITE, CARR CALLED YOST AND, IN A DISTRAUGHT MANNER, RELATED TO HER
 "THAT HE WAS BEING TERMINATED FOR SPENDING TOO MUCH TIME ON UNION
 BUSINESS" (TR. 111).  CARR'S TESTIMONY, AS CORROBORATED BY YOST IS
 CREDITED.
 
    /8/ BROWN, WHOSE TESTIMONY I CREDIT, ASKED FITE ABOUT PENDING ACTIONS
 BECAUSE OF RUMORS BROWN HAD HEARD AND BECAUSE OF FITE'S STATEMENT DURING
 THE MEETING THAT HE FELT PRESSURED AND WAS TIRED OF TAKING THE POSITION
 HE HAD TO TAKE AND THAT SOMETHING HAD TO BE DONE.
 
    /9/ I AM ABSOLUTELY UNIMPRESSED BY RESPONDENT'S ATTEMPT TO MERELY
 RECITE ALL LEAVE TAKEN BY AN INDIVIDUAL EMPLOYEE AND THEN LABEL IT
 "EXCESSIVE," WITHOUT REGARD TO THE FACT THAT A LARGE PART OF THE LEAVE
 WAS APPROVED IN ADVANCE AND THE BALANCE WAS APPROVED AFTER CARR'S
 REASONS WERE FOUND ACCEPTABLE.  AND I CERTAINLY WOULD DISREGARD ANY
 TARDINESS OR UNSCHEDULED LEAVE PRIOR TO THE DATE OF HIS WRITTEN
 EVALUATION ON APRIL 15. "REGULAR", TO ME, MEANS THAT HIS USE OF LEAVE
 WAS NO WORSE THAN ANY OTHER EMPLOYEE.  AND, I FURTHER NOTE FITE'S
 TESTIMONY THAT ALL EMPLOYEES USE A LOT OF LEAVE (TR. 195) AND THAT IN
 HIS 13 YEARS AS A SUPERVISOR HE HAD NEVER TAKEN ADVERSE ACTION AGAINST
 AN EMPLOYEE FOR LEAVE ABUSE.  NOR COULD WATKINS CITE ANY SPECIFIC
 EXAMPLES. THIS PARTICULAR POINT IS PERSUASIVELY DISCUSSED IN FN. 7 OF
 THE GENERAL COUNSEL'S BRIEF.
 
    /10/ DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY, 2
 FLRA NO. 118(1980);  U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
 MILWAUKEE AREA OFFICE, 8 A/SLMR 948, 969(1977).
 
    /11/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER, 2 FLRA NO. 12(1979);
  DEPARTMENT OF THE ARMY, UNITED STATES ARMY INFANTRY CENTER, 5 A/SLMR
 325;  ALSO SEE VETERANS ADMINISTRATION MEDICAL AND REGIONAL OFFICE
 CENTER, WHITE RIVER JUNCTION, VERMONT, CASE NO. 1-CA-147, ALJ DECISION
 (SEPT. 19, 1980) FOR A DISCUSSION OF THE NLRB'S RECENT "REFINEMENT" OF
 ITS RATIONALE IN MIXED MOTIVE CASES.
 
    /12/ RESPONDENT'S ARGUMENT TO THE CONTRARY IS PERSUASIVELY ANSWERED
 IN THE GENERAL COUNSEL'S BRIEF (AT PP 16-24) AND, IN VIEW OF MY DECISION
 HEREIN, DOES NOT REQUIRE ELABORATION HERE.
 
    /13/ THE APRIL 15 WRITTEN EVALUATION IS SOMETHING IN THE NATURE OF AN
 ADMISSION AGAINST INTEREST BECAUSE, QUITE FRANKLY, IT WEAKENS
 RESPONDENT'S DEFENSE.  ORAL TESTIMONY BY FITE (TR. 135) ATTEMPTING TO
 BACK OFF OR CONTRADICT HIS OWN WRITTEN EVALUATION IS PRETTY MUCH
 WORTHLESS, IN MY OPINION, UNLESS ADMITTED BY CARR.  ACCORDINGLY, EVEN
 WITHOUT CARR'S CREDITED TESTIMONY (TR. 44) THAT FITE SAID HIS ATTENDANCE
 WAS "SATISFACTORY," I WOULD HAVE TO REJECT FITE'S TESTIMONY AND INSTEAD
 RELY ON HIS WRITTEN EVALUATION WHICH IS DEVOID OF ANY CRITICISM
 CONCERNING PUNCTUALITY AND ATTENDANCE, AND WHICH FINDS CARR'S
 DEPENDABILITY TO HAVE IMPROVED UPWARDS TO "ABOVE AVERAGE."
 
    /14/ WATKINS' BELATED EXPLANATION FOR HIS CONDUCT IS NOT BELIEVABLE.
 HE HAD PREVIOUSLY APPROVED CARR'S RELEASE AND HE WAS AWARE OF THE
 CONTRACTUAL REQUIREMENTS.  IT IS MUCH MORE LIKELY THAT HE WAS IRRITATED
 BY CARR'S REQUEST FOR OFFICIAL LEAVE AND JUST DECIDED TO BE DOWNRIGHT
 ORNERY ABOUT IT.
 
    /15/ IT SEEMS TO ME THAT WHEN A UNION STEWARD IS SIMPLY TRYING TO DO
 HIS JOB AND A SUPERVISOR GIVES HIM A "HARD TIME" AS IN THIS CASE,
 RESPONDENT'S "CONDUCT" IS COERCIVE IN NATURE AND CONSTITUTES
 INTERFERENCE WITH PROTECTED ACTIVITY.  U.S. DEPARTMENT OF TREASURY
 INTERNAL REVENUE SERVICE, 4 FLRA NO.87(1980).
 
    /16/ BETWEEN APRIL 15, THE DATE OF HIS WRITTEN EVALUATION, AND JUNE
 11 WHEN FITE TOLD CARR HE WAS RECOMMENDING HIS DISCHARGE, CARR'S
 REQUESTS FOR LEAVE (MILITARY, SICK AND ANNUAL) WERE ALL APPROVED BY
 RESPONDENT. ON MAY 28, 29 AND JUNE 5, 6, 9, 10 AND 11, CARR REQUESTED
 AND RECEIVED OFFICIAL TIME TO PERFORM DUTIES OF A STEWARD.  TO FITE AND
 WATKINS, CARR'S FREQUENT USE OF LEAVE FOR UNION BUSINESS APPEARED TO BE
 EXCESSIVE.  INDEED, IT