Long Beach Naval Shipyard, Long Beach, California (Respondent) and Federal Employees Metal Trades Council, AFL-CIO (Charging Party)



[ v07 p102 ]
07:0102(16)CA
The decision of the Authority follows:


 7 FLRA No. 16
 
 LONG BEACH NAVAL SHIPYARD
 LONG BEACH, CALIFORNIA
 Respondent
 
 and
 
 FEDERAL EMPLOYEES METAL
 TRADES COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-407
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
 ENGAGED IN AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED JUDGE'S RECOMMENDED
 DECISION AND ORDER.  NO EXCEPTIONS WERE FILED TO THE JUDGE'S RECOMMENDED
 DECISION AND ORDER.
 
    THEREFORE, 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.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
 ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING PARTICULARLY THE ABSENCE
 OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS,
 CONCLUSIONS, AND RECOMMENDATIONS.
 
                                   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 LONG BEACH NAVAL SHIPYARD, LONG BEACH,
 CALIFORNIA SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING TO IMPLEMENT ANY AGREEMENTS REACHED WITH
 DESIGNATED REPRESENTATIVES OF THE FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF BARGAINING UNIT
 EMPLOYEES, IN SCHEDULED UNION-AGENCY NEGOTIATION SESSIONS.
 
    (B) REFUSING TO ALLOW EMPLOYEES OF ITS SUPPLY AND PUBLIC WORKS
 DEPARTMENTS TO DEPART WORK AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH
 THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, AND TO ALLOW SUCH
 EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT HOURS CONTAINED IN THE
 COLLECTIVE BARGAINING AGREEMENT.
 
    (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 EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON THE
 0730-1600 SHIFT IN CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER 30,
 1979, WITH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO DEVIATE
 SHIFT HOURS FOR EMPLOYEES IN THOSE DEPARTMENTS.
 
    (B) POST AT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA,
 COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE AUTHORITY.
  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING
 OFFICER AT SAID ACTIVITY 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 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, REGION VIII, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981.
 
                       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 FAIL OR REFUSE TO IMPLEMENT ANY AGREEMENTS REACHED WITH
 DESIGNATED REPRESENTATIVES OF THE FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO, THE EXCLUSIVE REPRESENTATIVE OF OUR BARGAINING UNIT
 EMPLOYEES, IN SCHEDULED UNION-AGENCY NEGOTIATION SESSIONS.
 
    WE WILL NOT REFUSE TO ALLOW EMPLOYEES OF THE SUPPLY AND PUBLIC WORKS
 DEPARTMENTS TO DEPART WORK AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH
 THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, AND ALLOW SUCH
 EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT HOURS CONTAINED IN THE
 COLLECTIVE BARGAINING AGREEMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON
 THE 0730-1600 SHIFT IN CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER
 30, 1979, WITH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO
 DEVIATE SHIFT HOURS FOR EMPLOYEES IN THOSE DEPARTMENTS.
 
                        . . . (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:  WORLD
 TRADE CENTER, 10TH FLOOR, 350 S. FIGUEROA ST., LOS ANGELES, CALIFORNIA
 90071.
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    ROBERT F. GRIEM AND
    RICHARD A. SCHULTZ
    FOR THE RESPONDENT
 
    PATRICIA F. MAYER AND
    JOSEPH SWERDZEWSKI, ESQ.
    FOR THE GENERAL COUNSEL
 
    FRANK RODRIGUEZ
    FOR THE CHARGING PARTY
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    THIS MATTER AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101, ET SEQ., HEREIN CALLED
 THE STATUTE AS THE RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT
 ORIGINALLY ISSUED ON MAY 23, 1980, /1/ BASED UPON A CHARGE FILED BY THE
 FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, HEREIN CALLED THE
 UNION.
 
    THE COMPLAINT ALLEGES THAT LONG BEACH NAVAL SHIPYARD, LONG BEACH,
 CALIFORNIA, HEREIN CALLED THE RESPONDENT REPUDIATED AN AGREEMENT
 CONCERNING HOURS OF WORK FOR CERTAIN EMPLOYEES ARRIVED AT WITH THE UNION
 IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
 
    A HEARING WAS HELD ON JULY 25, 1980 IN LONG BEACH, CALIFORNIA.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 HEREIN.  BOTH PARTIES SUBMITTED TIMELY BRIEFS IN THE MATTER.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
 CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    RESPONDENT AND THE UNION, AT ALL TIMES RELEVANT TO THIS MATTER, WERE
 PARTIES TO A COLLECTIVE BARGAINING AGREEMENT COVERING AN APPROPRIATE
 UNIT OF ALL UNGRADED EMPLOYEES AT RESPONDENT'S LONG BEACH FACILITY.
 
    THE PARTIES' COLLECTIVE BARGAINING AGREEMENT COVERING THEIR
 RELATIONSHIP BETWEEN FEBRUARY 1974 AND DECEMBER 1978 PROVIDED AT ARTICLE
 8, SECTION 4 THE FOLLOWING:
 
    NORMALLY, THE REGULARLY ESTABLISHED EIGHT-HOUR WORK SHIFT FOR ALL
 EMPLOYEES WITHIN THE UNIT
 
    SHALL BE AS FOLLOWS:
 
    A.  DAY SHIFT;  (1ST SHIFT) - 0730-1610 WITH A 40-MINUTE LUNCH HOUR
 PERIOD FROM 1130 TO 1210
 
    OR 0730 TO 1600 WITH A 30-MINUTE LUNCH PERIOD FROM 1200 TO 1230.
 
    B.  SWING SHIFT;  (2ND SHIFT) - 1545 TO 0015 WITH A 30-MINUTE LUNCH
 PERIOD FROM 1945 TO
 
    2015.
 
    C.  GRAVEYARD SHIFT;  (3RD SHIFT) - 0000 TO 0800 WITH NO SCHEDULED
 LUNCH PERIOD.
 
                         A.  NEGOTIATIONS IN 1978
 
    IN APRIL 1978 THE PARTIES BEGAN NEGOTIATIONS FOR A NEW COLLECTIVE
 BARGAINING AGREEMENT.  ARTICLE 8 SECTION 4 ABOVE, WHICH PERTAINED TO
 HOURS OF WORK AND, IS CRITICAL TO THIS MATTER, WAS DISCUSSED ON SEVERAL
 OCCASIONS.  SOMETIME DURING AUGUST 1978, RESPONDENT'S REPRESENTATIVES
 EXPRESSED THE VIEW THAT RESPONDENT COULD NOT DISCERN WHICH EMPLOYEES
 WERE SCHEDULED TO LEAVE THE SHIPYARD AT 1600 AND WHICH WERE TO LEAVE AT
 1610.  RESPONDENT THEN PRESENTED A WRITTEN PROPOSAL AT A NEGOTIATION
 SESSION WHICH WOULD ALLOW FOR ONLY ONE DAY SHIFT, THAT BEGIN FROM
 0730-1610.  THE 0730-1600 SHIFT LANGUAGE OF THE PRIOR AGREEMENT HAD BEEN
 DELETED.  THE UNION RESPONDED, EXPRESSING CONCERN ABOUT THE NEED TO
 RETAIN THE 0730-1600 SHIFT, REITERATING THAT THERE HAD TO BE EXCEPTIONS
 TO THE 1610 HOURS.
 
    ACCORDING TO THE UNION, FINAL AGREEMENT WAS REACHED ON ARTICLE 8,
 SECTION 4 SOMETIME DURING AUGUST 1978.  DURING THE NEGOTIATIONS
 RESPONDENT PROPOSED THAT THE WORK 'NORMALLY' BE DELETED FROM ARTICLE 8,
 SECTION 4.  THE UNION TOOK THE POSITION THAT THE DELETION OF THIS WORD
 WAS UNACCEPTABLE, FOR THAT COULD MEAN THAT ALL EMPLOYEES WOULD BE
 REQUIRED TO WORK ONLY THOSE SHIFTS WRITTEN INTO THE CONTRACT, WHEN IT
 WAS OBVIOUS AND WELL KNOWN THAT THERE WERE MANY EMPLOYEES WHOSE SHIFTS
 DID NOT APPEAR IN THE WRITTEN LANGUAGE OF THE CONTRACT.  BOTH PARTIES
 ADMITTEDLY DID NOT KNOW WHICH EMPLOYEES WERE CURRENTLY ON THE 1600
 SHIFT.  ACCORDING TO UNION NEGOTIATORS RODRIQUEZ AND COPE, THE UNION
 INSISTED ON THE RETENTION OF THE WORK "NORMALLY" TO COVER THOSE
 SITUATIONS WHERE AN EMPLOYEE WORKED A SHIFT OTHER THAN THE STANDARD
 SHIFT LISTED IN THE CONTRACT.  "NORMALLY" WAS SUBSEQUENTLY RETAINED IN
 THE FINAL LANGUAGE OF ARTICLE 8, SECTION 4 AND THE DAY OR 1ST SHIFT
 HOURS WERE "0730 TO 1610".  AS ENUMERATED DURING THE HEARING BECAUSE OF
 VARIOUS DIFFERING FUNCTIONS, MANY DIFFERENT SHIFTS EXISTED AT THE
 SHIPYARD.
 
    AT SOME TIME DURING NEGOTIATIONS, UNION REPRESENTATIVE ROBERT COPE
 TESTIFIED THAT HE SUGGESTED THAT IN ORDER TO IDENTIFY WHICH EMPLOYEES
 WERE ON THE 1600 SHIFT, EITHER PARTY SHOULD SUBMIT TO THE EMPLOYEE
 RELATIONS OFFICE, A LETTER LISTING THOSE EMPLOYEES CURRENTLY ON THE 1600
 SHIFT.  THE HOURS FOR THESE EMPLOYEES WOULD THEN BE AUTOMATICALLY
 RETAINED WHEN THE NEW CONTRACT WAS IMPLEMENTED.  BOTH COPE AND FRANK
 RODRIQUEZ, THE UNION PRESIDENT TESTIFIED THAT RESPONDENT'S
 REPRESENTATIVE AGREED TO THIS IDEA.  COPE ALSO RECALLED RESPONDENT'S
 REPRESENTATIVE MCINTOSH COMMENTING ON THE LISTS SAYING:  "ONCE THIS . .
 . LIST IS MADE UP THERE WILL BE NO SON-OF-A-BITCH WHO IS GOING TO CHANGE
 IT." ACCORDING TO THE UNION, IT WAS INDICATED THAT ONLY THOSE EMPLOYEES
 NOT DIRECTLY RELATED TO THE PRODUCTION FUNCTION OF THE SHIPYARD COULD BE
 INCLUDED IN THE LISTS.  THOSE EMPLOYEES WHOSE WORK INVOLVED PRODUCTION
 WOULD STILL BE ON THE 1610 SHIFT.  RODRIQUEZ AND COPE ALSO TESTIFIED
 THAT ONCE THE LETTERS WERE SUBMITTED, WRITTEN "SIDEBAR" AGREEMENTS
 CONTAINING THOSE TERMS WOULD BE ENTERED INTO AS A FORMALITY.  ACCORDING
 TO THE UNION, THE SUBMISSION OF THE LETTERS AND CREATION OF THE FORMAL
 AGREEMENTS WAS TO TAKE PLACE PRIOR TO THE IMPLEMENTATION OF THE
 CONTRACT.  THE UNION WAS APPARENTLY SATISFIED THAT THE USE OF THE ABOVE
 PROCEDURE IN CONJUNCTION WITH THE AGREEMENT WOULD PROTECT THE SHIFT.
 ACCORDING TO UNION PRESIDENT RODRIQUEZ, THE UNION WAS THEREFORE
 UNCONCERNED ABOUT THE DELETION OF THE 0730-1600 SHIFT FROM THE CONTRACT
 AND WAS NOT CONCERNED THAT IT HAD LOST A SHIFT.  IN FACT, BOTH RODRIGUEZ
 AND COPE STATED, THAT AUTOMATIC APPROVAL WOULD APPLY TO THOSE ON THE
 1600 SHIFT.
 
    FRANK R. MCINTOSH, ONE OF RESPONDENT'S NEGOTIATORS, TESTIFIED WITH
 REGARD TO THE 1978 NEGOTIATIONS THAT THE UNION HAD EXPRESSED CONCERN
 DURING NEGOTIATIONS OVER THE CHANGE IN SHIFTS HOURS FOR EMPLOYEES ON THE
 0730-1600 SHIFT.  CONCERNING ARTICLE 8, SECTION 4 MCINTOSH STATED, THAT
 THE AGREEMENT MADE DURING NEGOTIATIONS PROVIDED THAT AFTER RATIFICATION
 OF THE CONTRACT, THE UNION COULD MAKE REQUESTS REGARDING THOSE EMPLOYEES
 WHO HAD NO DIRECT RELATIONSHIP WITH THE PRODUCTION DEPARTMENT.  MCINTOSH
 TESTIFIED THAT:
 
    "IT WAS WITHIN THIS CONTEXT, THAT AFTER THE CONTRACT WAS RATIFIED AND
 PUT INTO EFFECT, THEN
 
    THE COUNCIL COULD COME BACK WITH A REQUEST TO DISCUSS-- APPRISE US OF
 SPECIFIC REQUESTS FOR
 
    THOSE AREAS-- THOSE EMPLOYEES WITHIN THE BARGAINING UNIT THAT HAD NO
 DIRECT CONTACT WITH THE
 
    PRODUCTION DEPARTMENT, PER SE-- THE WATERFRONT WORKERS, IF YOU WILL."
 
    FURTHER, MCINTOSH STATED THAT A PROCEDURE WAS SET UP WHEREBY THE
 UNION COULD SUBMIT LETTERS TO SUPPORT DEVIATIONS FROM THE CONTRACT'S
 SHIFT ENDING TIME.  MCINTOSH INDICATED THAT HE EXPECTED LETTERS FROM THE
 UNION RATHER THAN THE SHIPYARD. MCINTOSH ALSO RECALLED THAT THE
 PROCEDURE THAT THE PARTIES ESTABLISHED WAS TO BE FOLLOWED AFTER THE
 CONTRACT WAS IMPLEMENTED.
 
    ALTHOUGH RESPONDENT'S REPRESENTATIVE MCINTOSH STATES THAT MANAGEMENT
 DESIRED TO NEGOTIATE A SINGLE SHIFT INTO THE CONTRACT, THERE IS NO
 INDICATION THAT THE UNION WAS AWARE OF SUCH DESIRE, AT LEAST, UNTIL
 AFTER DECEMBER 3, 1979, WHEN RODRIQUEZ WAS TOLD BY SEVERAL MANAGEMENT
 OFFICIALS OF MACKEY'S LACK OF AUTHORITY AND ITS DESIRE FOR A
 STANDARDIZED SHIFT.  LIKEWISE, THERE IS NO RECORD SHOWING THAT THE UNION
 PARTICIPATED IN DISCUSSION CONCERNING THE SHIPYARD COMMANDER'S MAKING
 THE FINAL DECISION CONCERNING DEVIATIONS FROM THE SHIFT HOURS, AS
 MCINTOSH TESTIFIED.
 
    ANOTHER OF RESPONDENT'S NEGOTIATORS PETER R. MOENTER DENIES THAT ANY
 MATTERS WERE LEFT FOR RESOLUTION AFTER THE CONCLUSION OF CONTRACT
 NEGOTIATIONS IN 1978.  MOENTER ALSO DENIED THAT ANY AGREEMENT WAS
 REACHED DURING NEGOTIATIONS TO ALLOW EXCEPTIONS TO THE 0730-1600 SHIFT,
 ALTHOUGH THE RECORD CLEARLY ESTABLISHES THAT THERE WAS AGREEMENT THAT A
 PROCEDURE WAS TO BE SET UP FOR DEVIATIONS FOR NON-PRODUCTION EMPLOYEES.
 FINALLY, MOENTER TESTIFIED THAT THE PARTIES KNEW THAT TAKING THE 1600
 SHIFT OUT OF THE CONTRACT "WOULD BE BREAKING SOME RICE BOWLS."
 
    ACCORDING TO THE UNION, THE PARTIES DID NOT DISCUSS DEVIATIONS FROM
 SHIFT HOURS AFTER THE AUGUST 1978 NEGOTIATION SESSIONS.  THE ENTIRE
 COLLECTIVE BARGAINING AGREEMENT WAS NOT SIGNED UNTIL AUGUST 27, 1979 AND
 WAS ORIGINALLY SCHEDULED TO BE IMPLEMENTED ON OCTOBER 26, 1979.
 
                  B.  EVENTS OF OCTOBER AND NOVEMBER 1979
 
    BEGINNING IN OCTOBER 1979, THE UNION INITIATED COMMUNICATIONS WITH
 THE SHIPYARD IN ORDER IT STATES, TO COMPLETE, BEFORE IMPLEMENTATION
 CERTAIN LOOSE ENDS LEFT OPEN AT THE CONCLUSION OF NEGOTIATIONS AND
 INCLUDED AMONG THOSE WAS THE SHIFT DEPARTURE QUESTION.  AROUND OCTOBER
 22, 1979, THE UNION WROTE TO FRANK MACKEY, HEAD OF EMPLOYEE-MANAGEMENT
 RELATIONS, REQUESTING THAT EMPLOYEES IN THE PUBLIC WORKS AND SUPPLY
 DEPARTMENTS BE ABLE TO RETAIN THE 0730-1600 SHIFT.  ACCORDING TO THE
 UNION, THE LETTER WAS WRITTEN BECAUSE IT HAD NOT RECEIVED INFORMATION
 FROM MANAGEMENT CONCERNING THE PREPARATION OF THE LISTS IDENTIFYING
 THOSE EMPLOYEES WHO WOULD BE ALLOWED TO KEEP THE 1600 SHIFT HOURS AND,
 BECAUSE AT THAT TIME, THE CONTRACT WAS TO BE IMPLEMENTED ON OCTOBER 26,
 1979.  THERE WAS NO RESPONSE TO THIS REQUEST.  A SECOND LETTER WAS ALSO
 SENT TO MACKEY FROM RODRIQUEZ, REQUESTING THAT SIMILAR ACTION BE TAKEN
 FOR EMPLOYEES IN THE PLANNING AND ESTIMATING, SHIP SCHEDULES, AND
 QUALITY CONTROL DEPARTMENT, ALL OF WHOSE FUNCTIONS APPARENTLY WERE
 NON-PRODUCTION AND SUBJECT TO THE SHIFT DEPARTURE AGREEMENT.
 
    IN ATTEMPTING TO FINALIZE ALL LOOSE ENDS FROM THE 1978 NEGOTIATIONS,
 INCLUDING THE SHIFT DEPARTURES, SEVERAL MEETINGS WERE SET UP BETWEEN THE
 PARTIES IN NOVEMBER 1979.  BROAD DIFFERENCES EXIST AS TO THE DATES AND
 AS TO WHAT OCCURRED AT THESE MEETINGS, HOWEVER, I CREDIT THE FOLLOWING
 VERSION.  AT ONE OF THE MEETINGS HELD DURING THE LATTER PART OF NOVEMBER
 1979, ON EITHER NOVEMBER 27 OR 29, MACKEY MET WITH COPE AND SEVERAL
 OTHER UNION STEWARDS.  DURING THE COURSE OF THAT MEETING, THE PARTIES
 DISCUSSED THE 1600 SHIFT AND THE MATERIALS THAT THE STEWARDS HAD TO
 PROVIDE TO MACKEY IN ORDER TO RETAIN EMPLOYEES ON THE 1600 SHIFT.  AT
 THIS MEETING, MACKEY ALSO INSTRUCTED THE UNION STEWARDS TO SUBMIT
 INFORMATION TO HIM IN ORDER TO RETAIN THE 1600 SHIFT;  RECOMMENDED TO
 STEWARDS THAT THEY WORK WITH AND OBTAIN LETTERS FROM SUPERVISION
 REQUESTING THE 1600 SHIFT;  AND, STATED THAT THE LETTERS SHOULD SET
 FORTH REASONS IN SUPPORT OF THE REQUEST.  DURING THE MEETING, MACKEY
 INFORMED THE STEWARDS THAT INTERFERENCE IN PRODUCTIVITY WOULD BE A
 FACTOR HE WOULD EXAMINE IN CONNECTION WITH CHANGING WORKING HOURS.  THE
 STEWARDS ALSO GAVE MACKEY SOME WRITTEN INFORMATION, BUT MACKEY TOLD THEM
 TO GET BACK TO HIM WITH THE ADDITIONAL INFORMATION THE FOLLOWING DAY OR
 THE DAY AFTER THAT.  FORMER STEWARD D. C. MAKEANA TESTIFIED THAT AT SOME
 POINT IN THIS MEETING, WHICH HE RECALLS OCURRED AROUND, NOVEMBER 27 OR
 29, 1979, THAT MACKEY TOLD THE STEWARDS TO GET THE INFORMATION TO HIM BY
 THE NEXT DAY, AND THAT MACKEY STATED THAT HE WOULD GIVE THEM A RESPONSE
 BY NOVEMBER 30, 1979.  /2/ MAKEANA ALSO TESTIFIED, THAT HE ASSUMED FROM
 THE MEETING THAT THE INFORMATION THE STEWARDS GATHERED WOULD BE
 FORWARDED TO THE SHIPYARD COMMANDER.  FOR WHAT PURPOSE THE SHIPYARD
 COMMANDER WOULD USE THE INFORMATION, HE DID NOT STATE.  ALTHOUGH MACKEY
 TESTIFIED THAT HE TOLD THE GROUP THAT HE WOULD TAKE THE INFORMATION TO
 THE SHIPYARD COMMANDER, BOTH COPE AND RODRIQUEZ, WHO WERE NOT AT THIS
 MEETING, BUT LEARNED WHAT HAD OCCURED FROM THE STEWARDS SHORTLY
 THEREAFTER, DENIED THAT STEWARDS WERE TOLD THAT THE INFORMATION HAD TO
 BE SUBMITTED TO THE COMMANDER AT THIS MEETING.
 
    A NOVEMBER 9, 1979 MEMORANDUM WAS ISSUED TO VARIOUS MANAGEMENT
 OFFICIALS FROM THE SHIPYARD COMMANDER SETTING FORTH THE COMMAND'S
 POSITION ON THE TERMS OF THE NEW CONTRACT, SETTING THE NEW HOURS OF WORK
 FOR DAY SHIFT EMPLOYEES AS 0730 TO 1610 WITH NO DEVIATIONS.  THE UNION
 NEVER RECEIVED A COPY OF THAT MEMORANDUM NOR IS THERE ANY EVIDENCE TO
 SHOW THAT IT WAS AWARE OF THE CAPTAIN'S POSITION.  NOR IS THERE ANY
 RECORD EVIDENCE SHOWING THAT MACKEY, DURING ANY DISCUSSION, POINTED OUT
 THE COMMAND POSITION SET OUT IN THAT MEMORANDUM.
 
                     C.  MEETING OF NOVEMBER 30, 1979
 
    SOMETIME DURING THE AFTERNOON OF NOVEMBER 30, 1979, MACKEY, COPE,
 RODRIQUEZ AND POSSIBLY, ALEX VOURNAZOS, A SENIOR LABOR RELATIONS
 SPECIALIST MET IN MACKEY'S OFFICE.  EACH SIDE HAS A DIFFERENT VERSION OF
 WHO WAS PRESENT AND WHAT OCCURRED.  UNION REPRESENTATIVES COPE AND
 RODRIQUEZ CLAIM THAT THEY WERE CALLED TO MACKEY'S OFFICE WHILE MACKEY
 AND ALEX VOURNAZOS TESTIFIED THAT THE MEETING WAS SPONTANEOUS AND, THAT
 MACKEY OVERHEARD RODRIQUEZ IN THE HALL AND CALLED HIM INTO HIS OFFICE.
 FROM THAT POINT THE PARTIES RECOLLECTION GROWS EVEN WIDER APART.
 
    THE UNION CLAIMS THAT THE MEETING BEGAN WITH MACKEY MAKING A
 STATEMENT CONCERNING THE GOOD JOB THAT STEWARD GEORGE RADER HAD DONE IN
 GATHERING NEEDED INFORMATION FROM THE PUBLIC WORKS DEPARTMENT.  THEN
 MACKEY HANDED RODRIQUEZ TWO LETTERS CONCERNING THE SUPPLY AND PUBLIC
 WORKS DEPARTMENTS AND TOLD HIM TO SIGN THEM.  MACKEY ALSO STATED,
 ACCORDING TO RODRIQUEZ, THAT THE LETTERS SHOULD BE SIGNED THAT DAY SO
 THAT MACKEY COULD "CALL THE DEPARTMENTS." RODRIQUEZ SIGNED THE LETTERS,
 IN THE CUSTOMARY MANNER, SEE INFRA, BY PLACING HIS INITIALS AND THE DATE
 ACROSS THE TOP OF THE PAGES.  ONE OF THE DOCUMENTS INITIALED BY
 RODRIQUEZ WAS A LETTER DATED NOVEMBER 30, 1979 FROM CAPTAIN FEKULA OF
 THE SUPPLY DEPARTMENT AND THE OTHER WAS A SIMILAR LETTER CONCERNING
 SHIFT DEVIATIONS FOR EMPLOYEES OF THE PUBLIC WORKS DEPARTMENT.
 ACCORDING TO RODRIGUEZ, THE ACT OF PLACING HIS INITIALS ON THESE
 DOCUMENTS INDICATED TO HIM THAT HE HAD READ THE DOCUMENTS AND THAT THE
 PARTIES HAD AGREED TO THEM.
 
    MACKEY'S ACCOUNT OF THIS MEETING IS SUBSTANTIALLY DIFFERENT.  FIRST
 MACKEY STATES THAT VOURNAZOS A SENIOR LABOR RELATIONS SPECIALIST, AND
 NOT COPE, WAS PRESENT.  WHILE ADMITTING THAT HE GAVE THE NOVEMBER 30
 LETTERS TO RODRIQUEZ, MACKEY STATES THAT HE MADE REFERENCE TO TAKING THE
 "REQUEST TO THE SHIPYARD COMMANDER." COPE AND RODRIQUEZ BOTH DENY THAT
 ANY REFERENCE WAS MADE TO TAKING INFORMATION TO THE SHIPYARD COMMANDER.
 VOURNAZOS CONFIRMS MACKEY IN SOME RESPECTS BUT, IT IS OBVIOUS FROM HIS
 TESTIMONY, AND HIS RECENT EMPLOYMENT WHICH BEGAN ONLY ON NOVEMBER 5,
 1979 AT THE SHIPYARD, THAT HE DID NOT ABSORB THIS ENTIRE MEETING.
 THEREFORE, EVEN ASSUMING THAT VOURNAZOS WAS PRESENT, LESS WEIGHT IS
 GIVEN TO HIS TESTIMONY THAN THAT OF THE OTHERS.
 
    THEN ACCORDING TO RODRIQUEZ AND COPE, AFTER RODRIQUEZ HAD INITIALED
 THE DOCUMENTS AND WAS LEAVING THE ROOM TO MAKE COPIES OF THE LETTER FROM
 SUPPLY TO GIVE A UNION STEWARD, MACKEY PLACED A TELEPHONE CALL TO THE
 SUPPLY DEPARTMENT.  ACCORDING TO THE UNION'S VERSION, TOLD BY COPE,
 MACKEY ASKED TO SPEAK TO THE CAPTAIN.  WHEN THE CAPTAIN WAS APPARENTLY
 NOT PRESENT MACKEY INSTRUCTED THE PERSON WHO ANSWERED THE TELEPHONE TO "
 . . . RELATE AN IMPORTANT MESSAGE TO THE CAPTAIN . . . THAT THE
 EMPLOYEES WERE TO END THEIR WORK DAY AT 1600 HOURS INSTEAD OF 1610" THE
 FOLLOWING MONDAY, AND THAT DUE TO THE LATE HOUR, HE WOULD PROVIDE
 WRITTEN NOTICE ON MONDAY.  AFTER CONCLUDING THE TELEPHONE CALL, MACKEY
 TOLD COPE THAT "THE OTHER (DEPARTMENTS) WOULD FOLLOW." BY THIS TIME
 RODRIQUEZ HAD RETURNED TO MACKEY'S OFFICE WITH THE COPIES OF THE LETTER
 TO SUPPLY AND COPE WAS LEAVING.  MACKEY ACCORDING TO RODRIQUEZ, THEN
 TOLD RODRIQUEZ THAT HE HAD REACHED THE SUPPLY DEPARTMENT AND THAT
 ALTHOUGH THE CAPTAIN WAS OUT HE HAD TOLD THE SECRETARY THAT THERE WOULD
 BE NO DISRUPTION IN THE SUPPLY DEPARTMENT.  MACKEY ALSO TOLD RODRIQUEZ
 THAT HE WAS ATTEMPTING TO CONTACT THE PUBLIC WORKS DEPARTMENT.
 
    VIVIAN CUSOLITO, THE SECRETARY TO THE HEAD OF THE SUPPLY DEPARTMENT
 HAD TYPED THE NOVEMBER 30, 1979 LETTER WHICH MACKEY PRESENTED TO
 RODRIQUEZ FROM THE SUPPLY DEPARTMENT, ON THAT DAY.  CUSOLITO RECALLED
 HAVING RECEIVED A TELEPHONE CALL FROM A MALE CALLER ON THAT SAME DAY.
 ACCORDING TO CUSOLITO, THE CALLER ASKED FOR THE CAPTAIN.  THE CALLER
 TOLD HER THAT THE NOVEMBER 30 MEMORANDUM HAD BEEN APPROVED, AND TO GIVE
 THAT MESSAGE TO THE CAPTAIN.  LATER THAT DAY CUSOLITO RECEIVED A SECOND
 CALL WHICH TOLD HER THAT THE MEMORANDUM HAD NOT BEEN APPROVED, AND THAT
 SHE SHOULD NOT GIVE THE CAPTAIN THE FIRST MESSAGE.
 
    BOTH MACKEY AND VOURNAZOS TESTIFIED THAT MACKEY MADE A TELEPHONE CALL
 DURING A MID-NOVEMBER MEETING TELLING SUPPLY TO HOLD OFF ON IMPLEMENTING
 THE SHIFT HOURS UNTIL A WEEK AFTER THE CONTRACT BECAME EFFECTIVE.  THEY
 BOTH DENY, HOWEVER, THAT MACKEY MADE ANY CALLS TO THE SUPPLY DEPARTMENT
 CONCERNING THE SHIFT DEVIATIONS DURING THE NOVEMBER 30 MEETING.
 
                      D.  REFUSAL TO HONOR AGREEMENT
 
    THE FOLLOWING MONDAY, DECEMBER 3, 1979, RODRIQUEZ WAS CALLED BY
 MACKEY AND INVITED TO MACKEY'S OFFICE.  THERE MACKEY TOLD RODRIQUEZ THAT
 THE COMMANDER HAD CALLED HIM LATE FRIDAY AND TOLD HIM THAT THE AGREEMENT
 WAS NOT GOING TO BE IMPLEMENTED.  THEREFORE, THE EMPLOYEES IN THE PUBLIC
 WORKS AND SUPPLY DEPARTMENTS, AS WELL AS OTHER UNIT EMPLOYEES COVERED BY
 THE NEW CONTRACT, WOULD BE REQUIRED TO WORK UNTIL 1610 HOUR.
 
    SUBSEQUENTLY, RODRIQUEZ MET WITH GIL BOND, DIRECTOR OF INDUSTRIAL
 RELATIONS, WHO IS MACKEY'S SUPERVISOR, AND INQUIRED AS TO WHY MACKEY HAD
 NOT IMPLEMENTED THE AGREEMENT TO ALLOW DEVIATIONS FROM THE 1600 SHIFT.
 BOND'S REPLY WAS THAT MACKEY DID NOT HAVE THE AUTHORITY TO PERMIT THE
 DEVIATION IN QUESTION.  AFTER SOME DISCUSSION, BOND SET UP A MEETING
 WITH MCINTOSH, COPE AND RODRIQUEZ DURING WHICH MCINTOSH INFORMED
 RODRIQUEZ AND COPE THAT AT THE TIME OF THE NEGOTIATIONS, MCINTOSH HAD
 SOUGHT A "STANDARDIZED WORK SHIFT." RODRIQUEZ DENIES EVER HAVING HEARD
 DURING NEGOTIATIONS ANY MANAGEMENT REPRESENTATIVE STATE THAT RESPONDENT
 DESIRED A STANDARDIZED WORK SHIFT.  DURING THE COURSE OF THE MEETING
 MCINTOSH STATED THAT THE ONLY EXCEPTIONS WHICH WHICH WOULD BE CONSIDERED
 TO THE 1610 HOURS OF THE CONTRACT WERE THOSE THAT "DID NOT IMPACT ON
 PRODUCTIVITY" AND THOSE EXCEPTIONS "MAY BE CONSIDERED APPROVED."
 MCINTOSH ALSO TESTIFIED THAT AT THE TIME OF THE MEETING, WHICH WAS
 SUBSEQUENT TO THE TIME OF IMPLEMENTATION, THAT THE COMMAND DECISION WAS
 TO MAKE NO DEPARTURES FROM THE CONTRACT.  THIS, OF COURSE, IS CONFIRMED
 BY THE NOVEMBER 9, 1979 MEMORANDUM FROM THE SHIPYARD COMMANDER SETTING
 FORTH THAT NO DEVIATION WOULD BE PERMITTED.  BOND TESTIFIED THAT HE HAD
 TOLD RODRIQUEZ PRIOR TO NOVEMBER 30, 1979 THAT THE COMMANDING OFFICER
 HELD THE AUTHORITY TO MAKE EXCEPTIONS TO THE SHIFT HOURS AS SET OUT IN
 THE CONTRACT.  BOND FURTHER TESTIFIED THAT NEITHER HE NOR MACKEY HAD
 AUTHORITY TO MAKE CHANGES IN POLICY.
 
                  E.  LABOR RELATIONS AUTHORITY OF MACKEY
 
    FRANK MACKEY, IS HEAD OF EMPLOYEE-LABOR MANAGEMENT RELATIONS.  IN
 THIS CAPACITY, HIS RESPONSIBILITY IS TO IMPLEMENT AND ADMINISTER
 CONTRACTS WITH REGARD TO LABOR ORGANIZATIONS, AND ALL CONTRACTS OF
 MANAGEMENT WITH LABOR AT THE SHIPYARD.  IN THIS CAPACITY, MACKEY HAS
 EXPRESS AUTHORITY TO ENTER INTO WRITTEN AGREEMENTS WITH THE UNION.
 MACKEY TESTIFIED THAT EXCEPT WHERE HE HAD EXPRESSED ORDERS THAT THE
 SHIPYARD COMMANDER DESIRES TO MAKE A PARTICULAR DECISION, "I HAVE
 AUTHORITY TO SIGN MEMORANDUMS OF AGREEMENT."
 
    THE RECORD DISCLOSED THAT THE PARTIES HAD AN ESTABLISHED PROCEDURE
 FOR ENTERING INTO SIDE AGREEMENTS.  RODRIQUEZ TESTIFIED THAT THE UNION
 HAD ENTERED INTO AGREEMENTS WITH MACKEY ON BEHALF OF RESPONDENT ON AN
 ALMOST DAILY BASIS SINCE JUNE 1978.  THESE HUNDREDS OF AGREEMENTS
 INCLUDED GRIEVANCES, THE ROTATION OF OVERTIME, SHIFT CHANGES AND OTHER
 SUBJECTS WHICH CONSTITUTED SUBSTANTIAL DEPARTURES FROM THE EXISTING
 CONTRACT.  THE PROCEDURE WAS THAT A PARTICULAR DEPARTMENT OR OFFICIAL OF
 THE SHIPYARD WOULD SEND A WRITTEN REQUEST TO MACKEY WHICH WOULD BE
 SHOWN
 BY MACKEY, OR SOMEONE ON HIS STAFF, TO THE UNION.  THE UNION WOULD THEN
 INITIAL OR DATE THE MEMORANDUM.  MACKEY TESTIFIED THAT THE INITIALLING
 OF SUCH MEMORANDUM OR LETTER BY A UNION OFFICIAL WOULD INDICATE THE
 AGREEMENT OR CONCURRENCE OF THE UNION.  THEREAFTER, A FORMAL WRITTEN
 AGREEMENT WOULD BE PREPARED BY THE SHIPYARD AND SIGNED BY MACKEY AND
 RODRIQUEZ.  ON OCCASION, THE SUBJECT MATTER WOULD BE IMPLEMENTED BEFORE
 THE FORMAL WRITTEN AGREEMENT WAS SIGNED.  THE FORMAL WRITTEN AGREEMENT,
 ACCORDING TO RODRIQUEZ, ONLY MEMORALIZED THE PRIOR AGREEMENT WHICH HAD
 BEEN ENTERED INTO BY THE INITIALED LETTER.  RODRIQUEZ ALSO TESTIFIED,
 THAT THERE HAS NEVER BEEN A DEVIATION BETWEEN WHAT WAS AGREED TO ON THE
 INITIALLED LETTER AND WHAT APPEARED ON THE FINAL AGREEMENT.  ALSO,
 RODRIQUEZ TESTIFIED, THAT MACKEY HAD NEVER TOLD HIM THAT MACKEY HAD TO
 OBTAIN APPROVAL FROM THE SHIPYARD COMMANDER OR FROM ANY OTHER SHIPYARD
 OFFICIAL BEFORE IMPLEMENTING ANY OF THE HUNDREDS OF PREVIOUS AGREEMENTS
 WHICH THE PARTIES HAD REACHED OVER A TWO YEAR PERIOD.
 
    WHILE THERE ARE UNDOUBTABLY SOME LIMITATIONS ON MACKEY'S AUTHORITY,
 BOND WHO IS MACKEY'S IMMEDIATE SUPERVISOR, TESTIFIED THAT HE WAS NOT
 AWARE OF WHAT AGREEMENTS MACKEY ENTERED INTO ON A DAY BY DAY BASIS.
 FINALLY, RODRIQUEZ TESTIFIED THAT THERE HAS NEVER BEEN AN OCCASION WHEN
 MACKEY REFUSED TO ENTER INTO A FORMAL WRITTEN AGREEMENT AFTER RODRIQUEZ
 HAD INITIALED THE LETTER DETAILING THE PROPOSED CHANGE.
 
                                CONCLUSIONS
 
    RESPONDENT MAINTAINS THAT FRANK MACKEY DID NOT HAVE THE AUTHORITY TO
 ENTER INTO THE SHIFT WORK HOUR DEVIATION AGREEMENT AND THAT THE UNION
 WAS AWARE OF THIS LACK OF AUTHORITY PRIOR TO NOVEMBER 30, 1979.  THE
 RECORD REVEALS THAT MACKEY HAD BROAD EXPRESS AUTHORITY TO ENTER
 AGREEMENTS WHICH DEVIATED FROM THE CONTRACT AND THAT HE HAD DONE SO ON
 HUNDREDS OF OCCASIONS, IN THE SAME FASHION EMPLOYED ON THE NOVEMBER 30
 MEMORANDA.  I CREDIT RODRIQUEZ AND COPE, THAT MACKEY HAD NEVER MENTIONED
 ANY LIMITATIONS ON HIS AUTHORITY OR THAT HE HAD TO TAKE THE INFORMATION
 CONCERNING SHIFT DEPARTURES TO THE SHIPYARD COMMANDER.  IF SO, THIS
 IMPRESSION WAS CONVEYED, ONLY TO MAKEANA.  OTHERWISE, THERE IS NO
 INDICATION IN THE RECORD THAT THE UNION WAS AWARE THAT FINAL APPROVAL
 FOR THE DEPARTURES FROM THE COMMANDER WAS NEEDED.  IN THIS REGARD, I
 NOTE THAT NEITHER BOND NOR MACKEY PLACED ANY SPECIFIC LIMITATIONS ON
 MACKEY'S AUTHORITY TO ACT FOR THE SHIPYARD IN LABOR-RELATIONS MATTERS
 PRIOR TO NOVEMBER 30 AND THAT MACKEY'S ACTIONS WERE COMPLETELY
 CONSISTENT TO HIS ACTIONS PRIOR TO THAT TIME.
 
    WHILE THE SHIPYARD COMMANDER'S NOVEMBER 9, 1979 MEMORANDUM SET FORTH
 THE COMMAND POSITION THAT THERE WOULD BE NO "DEVIATIONS" FROM THE 0730
 TO 1610 HOURS, THE UNION WAS NEVER MADE AWARE OF THIS POSITION.  THE
 EVIDENCE IS OVER-WHELMING THAT MACKEY HAD EXPRESS AUTHORITY, AS HEAD OF
 EMPLOYEE RELATIONS, TO CONDUCT DAY-TO-DAY LABOR RELATIONS WITH THE
 UNION;  HAD ON HUNDREDS OF OCCASIONS EXERCISED AUTHORITY BY ENTERING
 INTO SIMILAR MEMORANDA WITH THE UNION CONCERNING DEVIATIONS FROM THE
 COLLECTIVE BARGAINING AGREEMENT;  AND, THE UNION WAS NOT APPRAISED OF
 AND HAD NO WAY OF KNOWING THAT THERE WERE LIMITATIONS ON THAT AUTHORITY.
  SINCE NO LIMITATIONS WERE EXPRESSED AND MACKEY'S ACTION THROUGHOUT WERE
 CONSISTENT WITH HIS HAVING AUTHORITY TO APPROVE SHIFT HOUR DEVIATIONS,
 IT IS FOUND THAT, MACKEY'S ACTIONS WERE THOSE OF THE SHIPYARD.
 
    BASED ON THE FOREGOING, I FIND THAT THE NOVEMBER 30, 1979 MEMORANDA
 CONCERNING DEVIATION FROM THE CONTRACTUAL SHIFT WORK HOURS IN THE SUPPLY
 AND PUBLIC WORKS DEPARTMENTS, WHICH WERE ENTERED WITH IN THE SAME MANNER
 AS HUNDREDS OF OTHER AGREEMENTS ALLOWING DEPARTURES FROM THE COLLECTIVE
 BARGAINING AGREEMENT, WERE BINDING ON THE SHIPYARD.
 
    THE GENERAL COUNSEL ARGUES THAT THE PARTIES AGREED TO DEVIATIONS FROM
 THE 1600 SHIFT DURING THE 1978 CONTRACT NEGOTIATIONS.  /3/ RESPONDENT
 OFFERED EVIDENCE THAT IT SOUGHT A "STANDARDIZED WORK SHIFT" DURING THE
 NEGOTIATIONS.  FURTHERMORE RESPONDENT MAINTAINS THAT THE DEVIATIONS, IF
 ANY WERE TO ALLOWED, SHOULD HAVE BEEN SUBMITTED AFTER THE CONTRACT WAS
 IMPLEMENTED.  THE RECORD DOES NOT SUPPORT SUCH AN ARGUMENT.  ALTHOUGH
 RESPONDENT'S PROPOSAL ON SHIFT HOURS OFFERED ONLY A SINGLE DAY SHIFT
 PROPOSAL, MCINTOSH'S TESTIMONY CONVINCES ME THAT THE PARTIES WITHOUT
 QUESTION AGREED TO A PROCEDURE TO DETERMINE WHICH EMPLOYEES WERE
 NON-PRODUCTION EMPLOYEES AND THAT ONCE DETERMINED THOSE EMPLOYEES WERE
 ENTITLED TO EXCEPTIONS FROM THE REGULAR SHIFT.  THE PARTIES' CONDUCT
 PRIOR TO CONTRACT IMPLEMENTATION IS ALSO COMPLETELY UNCHARACTERISTIC OF
 THE FACT THAT AN AGREEMENT DID NOT EXIST.  BOTH SIDES WERE ATTEMPTING TO
 IDENTIFY EMPLOYEES SUBJECT TO THE DEVIATION BEFORE IMPLEMENTATION AND
 EXTENSIONS OF TIME TO OBTAIN LISTS OR INFORMATION HAD BEEN GRANTED BY
 MACKEY, IN ORDER TO ALLOW THE UNION TIME TO GAIN SUPPORT FROM DEPARTMENT
 HEADS CONCERNING DEVIATIONS FOR THEIR RESPECTIVE EMPLOYEES BEFORE THE
 CONTRACT WAS IMPLEMENTED.  IT IS ALSO NOTED THAT MCINTOSH, ONE OF THE
 RESPONDENT'S NEGOTIATORS, AGREED THAT A PROCEDURE HAD BEEN ESTABLISHED
 FOR SEEKING DEVIATIONS.  IT IS MY VIEW, THAT THE ACTIONS OF THE PARTIES
 WERE CONSISTENT WITH THE AGREEMENT REACHED DURING NEGOTIATIONS TO SEEK
 DEVIATIONS FOR SHIFT HOURS PRIOR TO IMPLEMENTATION.  FURTHERMORE,
 MACKEY'S ACTIONS IN MEETING WITH STEWARDS CONFIRMS THAT THE PARTIES HAD
 AGREED TO A PROCEDURE WHEREBY SHIFT DEPARTURES WOULD BE GRANTED,
 OTHERWISE THERE WOULD HAVE BEEN NO NEED FOR MEETINGS AND/OR INSTRUCTIONS
 ON HOW TO OBTAIN DEVIATIONS.  THUS, THE UNION WAS SEEKING LISTS, LETTERS
 OR INFORMATION FROM DEPARTMENT HEADS IN ORDER TO OBTAIN DEVIATIONS IN A
 MANNER COMPATIBLE WITH THAT AGREEMENT.  I ALSO NOTE, THAT RESPONDENT DID
 NOT DISCOURAGE THIS ACTION AND THE INFORMATION WAS TO BE SUBMITTED TO
 MACKEY BEFORE THE CONTRACT WAS IMPLEMENTED.  INDEED MACKEY MADE A PHONE
 CALL SOMETIME DURING MID-NOVEMBER TO GAIN AN EXTENSION OF TIME SO THAT
 THE INFORMATION COULD BE SUBMITTED.  IN THE CIRCUMSTANCES, THE ACTIONS
 OF BOTH SIDES CONVINCE ME THAT AGREEMENT WAS REACHED IN 1978 TO ALLOW
 DEVIATIONS FROM SHIFT HOURS BEFORE AND NOT AFTER CONTRACT
 IMPLEMENTATION.  ALTHOUGH IT APPEARS FROM THE RECORD THAT THE NEW
 SHIPYARD COMMANDER, CAPTAIN GILDEA DID NOT AGREE WITH THE PREVIOUSLY
 NEGOTIATED PROCEDURE OR ARRANGEMENT TO ALLOW DEVIATIONS, THIS POSITION
 WAS NOT EXPRESSED TO THE UNION UNTIL DECEMBER 3, 1979.  ONLY THEN WAS
 UNION PRESIDENT RODRIQUEZ TOLD FOR THE FIRST TIME, THAT THERE "WILL BE
 NO DEVIATIONS."
 
    BASED ON THE ABOVE, I FIND, THAT AGREEMENT HAD BEEN REACHED IN 1978
 TO ESTABLISH PROCEDURES TO OBTAIN DEVIATIONS FOR NON-PRODUCTION
 EMPLOYEES AND THAT THE UNION SOUGHT TO COMPLY WITH THAT AGREEMENT BY
 OBTAINING LISTS OR INFORMATION FROM DEPARTMENT HEADS IN ORDER TO
 DETERMINE WHICH NON-PRODUCTION EMPLOYEES WERE ENTITLED TO OBTAIN
 EXCEPTIONS TO THE STANDARD WORK SHIFT.  FURTHER, IT IS FOUND THAT, ONCE
 IT WAS DETERMINED WHICH EMPLOYEES WERE ENTITLED TO EXCEPTIONS THAT THOSE
 DEVIATIONS WOULD BE GRANTED.
 
    SUBSEQUENTLY, THE PARTIES IN OCTOBER AND NOVEMBER 1979 BEGAN TO
 COMPLY WITH THE 1978 AGREEMENT TO IDENTIFY AND SEEK DEVIATIONS.
 MEETINGS WERE HELD ON SEVERAL OCCASIONS AND THE UNION APPARENTLY WAS
 WORKING FEVERISHLY TO SATISFY MACKEY'S REQUESTS TO OBTAIN INFORMATION OR
 LETTERS SUPPORTING THE DEVIATIONS.  IT IS INCONCEIVABLE, AS RODRIQUEZ'
 TESTIMONY INDICATES, THAT THE UNION WOULD HAVE GONE TO THIS AMOUNT OF
 TROUBLE TO OBTAIN DEVIATIONS FROM MACKEY WHEN UNION PRESIDENT RODRIQUEZ
 HAD DIRECT ACCESS ON THE MATTER TO THE SHIPYARD COMMANDER.  /4/ IF THE
 UNION HAD NOT PERCEIVED THAT MACKEY DID NOT HAVE AUTHORITY TO APPROVE
 THE AGREEMENT, AND THE DEALINGS BETWEEN THE PARTIES IN THE PAST
 DISCLOSED NO REASON FOR THE UNION TO THINK OTHERWISE, THERE WERE OTHER
 MORE EXPEDITIOUS MEANS AVAILABLE.  IN ALL OF THE CIRCUMSTANCES OF THE
 CASE, INCLUDING THE 1978 AGREEMENT TO ESTABLISH A PROCEDURE TO ALLOW
 DEVIATIONS;  MACKEY'S EXPRESS AUTHORITY PRIOR TO NOVEMBER 30, 1979 TO
 APPROVE WHATEVER AGREEMENT WAS REACHED;  THE UNION'S PERCEPTION THAT
 MACKEY WAS THE FINAL AUTHORITY IN THE MATTER;  THE APPROVAL OF THE
 MEMORANDA IN THE EXACT SAME FASHION AS HAD BEEN DONE ON HUNDREDS OF
 OTHER OCCASIONS;  MACKEY'S CALL TO SUPPLY INDICATING THAT THE AGREEMENT
 HAD BEEN APPROVED;  /5/ THE MEETINGS AND INSTRUCTIONS TO THE UNION;
 AND, THE FACT THAT THE UNION WAS NEVER TOLD OF ANY LIMITATIONS ON
 MACKEY'S AUTHORITY, I FIND THAT THE PARTIES DID INDEED ENTER INTO VALID
 AGREEMENTS ON NOVEMBER 30, 1979 CONCERNING SHIFT DEVIATIONS FOR THE
 SHIPYARD AND PUBLIC WORKS DEPARTMENT EMPLOYEES ALLOWING THEM TO
 CONCLUDE
 THEIR DAY AT 1600 HOURS INSTEAD OF 1610.  FURTHERMORE, IT IS FOUND THAT
 RESPONDENT'S REFUSAL, ON DECEMBER 3, 1979, TO PERMIT THOSE EMPLOYEES TO
 END THEIR SHIFT AT 1600 AND LEAVE THE SHIPYARD AT 1600 HOURS CONSTITUTED
 A REPUDIATION OF THAT AGREEMENT, IN VIOLATION OF SECTION 7116(A)(1) AND
 (5) OF THE STATUTE.  /6/
 
    HAVING FOUND THAT LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA
 HAS VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE, I RECOMMEND
 THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:  /7/
 
                                   ORDER
 
    PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
 RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
 ORDERED THAT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA.
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO ALLOW EMPLOYEES OF ITS SUPPLY AND PUBLIC WORKS
 DEPARTMENTS AND DEPART WORK
 
    AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH THE FEDERAL EMPLOYEES
 METAL TRADES COUNCIL,
 
    AFL-CIO, TO ALLOW SUCH EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT
 HOURS CONTAINED IN THE
 
    COLLECTIVE BARGAINING AGREEMENT.
 
    (B) 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 ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON THE
 0730-1600 SHIFT IN
 
    CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER 30, 1979 WITH
 FEDERAL EMPLOYEES METAL TRADES
 
    COUNCIL, AFL-CIO, TO DEVIATE SHIFT HOURS FOR EMPLOYEES IN THOSE
 DEPARTMENTS.
 
    (B) POST AT THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA,
 COPIES OF THE ATTACHED
 
    NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY.
 UPON RECEIPT OF SUCH
 
    FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AT SAID
 ACTIVITY 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 SAID
 NOTICES ARE NOT ALTERED,
 
    DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE FINAL RULES AND REGULATIONS,
 45 FED.REG.AT 3511,
 
    NOTIFY THE REGIONAL DIRECTOR OF REGION VIII, WORLD TRADE BUILDING,
 10TH FLOOR, 350 FIGUEROA
 
    ST., LOS ANGELES, CALIFORNIA 90071, IN WRITING, WITHIN 30 DAYS FROM
 THE DATE OF THIS ORDER, AS
 
    TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                              ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 25, 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 REFUSE TO ALLOW EMPLOYEES OF THE SUPPLY AND PUBLIC WORKS
 DEPARTMENTS TO DEPART WORK AT 1600 HOURS PURSUANT TO AN AGREEMENT WITH
 THE FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO ALLOW SUCH
 EMPLOYEES TO DEVIATE FROM THE NORMAL SHIFT HOURS CONTAINED IN THE
 COLLECTIVE BARGAINING AGREEMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL PLACE EMPLOYEES IN THE SUPPLY AND PUBLIC WORKS DEPARTMENTS ON
 THE 0730-1600 SHIFT IN CONFORMITY WITH THE AGREEMENT REACHED ON NOVEMBER
 30, 1979 WITH FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, TO
 DEVIATE SHIFT HOURS FOR EMPLOYEES IN THOSE DEPARTMENTS.
 
                         . . . 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 EMPLOYEE HAS ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH IT'S PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VIII, WHOSE ADDRESS
 IS:  WORLD TRADE CENTER, 10TH FLOOR, 350 S FIGUEROA ST., LOS ANGELES,
 CALIFORNIA 90071.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ CASE NO. 8-CA-407 WAS ORIGINALLY CONSOLIDATED FOR HEARING WITH
 CASE NO. 8-CA-438.  SUBSEQUENTLY, ON JULY 25, 1980 THE REGIONAL
 DIRECTOR, REGION VIII ISSUED AN ORDER SEVERING CASES, WITHDRAWING THE
 ORDER CONSOLIDATING CASES AND APPROVING WITHDRAWAL OF CHARGE AND
 DISMISSING THE CONSOLIDATED AMENDED COMPLAINT AS IT INVOLVED CASE NO.
 8-CA-438.
 
    /2/ RODRIQUEZ TESTIFIED TO TWO MEETINGS BETWEEN MACKEY AND THE
 STEWARDS.  MACKEY, MACKEANA AND VOURNAZOS RECALLED ONLY ONE.
 
    /3/ RESPONDENT DOES NOT CONTEND THAT THIS RIGHT TO ESTABLISH TOURS OF
 DUTY UNDER SECTION 7116(B)(2) OF THE STATUTE.  IN ANY EVENT, RESPONDENT,
 IT IS FOUND ENGAGED IN NEGOTIATIONS CONCERNING THE SHIFT HOURS AND
 ELECTED TO BARGAIN OVER THE MATTER.
 
    /4/ MAKAENA'S TESTIMONY THAT HE PERCEIVED THAT THE INFORMATION WOULD
 BE TAKEN TO THE OLD MAN IS OF LITTLE VALUE.  THIS COULD MEAN THAT THE
 INFORMATION WAS BEING TAKEN TO THE CAPTAIN FOR APPROVAL OR FOR HIS
 INFORMATION.  I AM NOT CONVINCED THAT ITS PURPOSE WAS FOR APPROVAL ONLY.
 
    /5/ I CREDIT CUSOLITO THAT SHE RECEIVED TWO CALLS O