Sheet Metal Workers International Association, Local 97 (Respondent) and Philadelphia Metal Trades Council, AFL-CIO (Respondent) and Robert Cosden (Charging Party)



[ v07 p799 ]
07:0799(138)CO
The decision of the Authority follows:


 7 FLRA No. 138
 
 SHEET METAL WORKERS INTERNATIONAL
 ASSOCIATION, LOCAL 97
 Respondent
 
 and
 
 PHILADELPHIA METAL TRADES COUNCIL,
 AFL-CIO
 Respondent
 
 and
 
 ROBERT COSDEN
 Charging Party
 
                                            Case No. 23-CO-21
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT
 HAD NOT ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND ORDERED THAT THE
 CASE BE DISMISSED IN ITS ENTIRETY.  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. THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD, NOTING
 PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CO-21 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JANUARY 29, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    NINA SCHWARTZ AND JOHN BATES,
    ATTORNEYS FOR THE GENERAL COUNSEL
 
    THEODORE M. LIEVERMAN,
    ATTORNEY FOR THE RESPONDENTS
 
    BEFORE:  ISABELLE R. CAPPELLO
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ. (HEREINAFTER
 REFERRED TO AS THE STATUTE) AND THE RULES AND REGULATIONS ISSUED
 THEREUNDER AND PUBLISHED IN 45 FED.REG.NO. 12, PP. 3482-3524 (1/17/80),
 5 C.F.R. 2421 ET SEQ.
 
    BY A COMPLAINT DATED MAY 30, 1980, THE REGIONAL DIRECTOR OF REGION II
 OF THE FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER REFERRED TO AS THE
 AUTHORITY) ALLEGES THAT THE RESPONDENTS HAVE VIOLATED SECTIONS
 7116(B)(1) AND (2) OF THE STATUTE.  /1/ THE SECTION 7116(B)(2) VIOLATION
 IS GROUNDED ON ALLEGATIONS THAT DISCIPLINARY ACTION WAS TAKEN AGAINST
 ROBERT COSDEN BY THE PHILADELPHIA NAVAL SHIPYARD, HEREINAFTER REFERRED
 TO AS THE SHIPYARD, BECAUSE OF A LETTER WRITTEN BY FRANK MCHALE,
 PRESIDENT OF SHEET METAL WORKERS INTERNATIONAL, LOCAL 97 (HEREINAFTER
 REFERRED TO AS LOCAL 97), IN WHICH IT WAS ALLEGED THAT MR. COSDEN HAD
 ENGAGED IN A FIGHT WITH A UNION STEWARD, CHARLES KESSLER.  IT IS THE
 POSITION OF THE GENERAL COUNSEL FOR THE AUTHORITY THAT THE DISCIPLINARY
 ACTION WOULD NOT HAVE BEEN INITIATED, BUT FOR THE LETTER, AND THAT THE
 LETTER WAS WRITTEN BECAUSE OF MR. COSDEN'S LONG RECORD OF ANTI-UNION
 ACTIVITY.  THE GENERAL COUNSEL ALSO ALLEGES THAT THE FIGHT DID NOT TAKE
 PLACE, ALTHOUGH IT VIEWS THIS QUESTION AS "NOT REALLY AN ISSUE IN THE
 CASE." (TR.353) RESPONDENTS CLAIM MR. COSDEN DID ASSAULT MR. COSDEN AND
 ADMIT THAT THEY REQUESTED THE SHIPYARD TO INITIATE DISCIPLINARY
 PROCEEDINGS AGAINST MR. COSDEN.  THEY CLAIM THAT THEIR REQUEST WAS BASED
 ON THE UNPROVOKED ASSAULT AND NOT ON MR. COSDEN'S UNION ANIMUS.  THEY
 DENY THAT A STATUTORY VIOLATION OCCURRED.
 
    THE SECTION 7116(B)(1) VIOLATION IS GROUNDED ON ALLEGATIONS THAT
 RESPONDENTS UNFAIRLY REFUSED TO ALLOW MR. COSDEN TO BE REPRESENTED BY
 HIS OWN ATTORNEY, IN THE GRIEVANCES PROCEDURE GROWING OUT OF THE
 DISCIPLINARY ACTION TAKEN BY THE SHIPYARD, EVEN THOUGH RESPONDENTS
 INITIATED THE ACTION AND HAD REFUSED TO ALLOW UNION STEWARDS, CHOSEN BY
 MR. COSDEN, TO REPRESENT HIM.  RESPONDENTS DENY THAT THEY REFUSED TO
 REPRESENT MR. COSDEN, OR THAT ANY CONFLICT OF INTEREST PREVENTS THEM
 FROM REPRESENTING HIM FAIRLY.  THEY ADMIT THAT THEY DENIED MR. COSDEN'S
 REQUEST TO BE REPRESENTED BY HIS OWN ATTORNEY.  THEY DENY THAT A
 STATUTORY VIOLATION OCCURRED.
 
    THE HEARING ON THE MATTER WAS HELD ON DECEMBER 2 AND 3, 1980, IN
 PHILADELPHIA, PA. ALL PARTIES WERE AFFORDED A FULL OPPORTUNITY TO BE
 HEARD, EXAMINE WITNESSES, AND PRESENT EVIDENCE AND ORAL ARGUMENT, AT THE
 BEGINNING AND CLOSE OF THE HEARING.
 
    A BRIEF WAS FILED BY RESPONDENTS, ON FEBRUARY 5, AFTER SEEKING AND
 OBTAINING AN EXTENSION OF THE JANUARY 5 FILING DATE SET AT THE HEARING.
 THE GENERAL COUNSEL DID NOT FILE A BRIEF, AND APPARENTLY RELIES UPON THE
 ORAL ARGUMENTS MADE AT THE CLOSE OF THE HEARING.  SEE TR 331.
 
    THE FOLLOWING FINDINGS AND CONCLUSIONS ARE BASED UPON THE ENTIRE
 RECORD MADE IN THIS CASE, UPON OBSERVANCE OF THE DEMEANOR OF THE
 WITNESSES, AND UPON CONSIDERATION OF THE ARGUMENTS OF THE PARTIES AND
 RESPONDENTS' BRIEF.
 
                           FINDINGS OF FACT /2/
 
    A.  FACTS RELATIVE TO RESPONDENTS AND THEIR COLLECTIVE BARGAINING
 AGREEMENT WITH THE SHIPYARD
 
    1.  RESPONDENT PHILADELPHIA METAL TRADES COUNCIL, AFL-CIO,
 HEREINAFTER REFERRED TO AS THE COUNCIL, IS COMPOSED OF 17 AFFILIATED
 LOCAL TRADE UNIONS, ONE OF WHICH IS THE OTHER RESPONDENT, LOCAL 97.
 EACH LOCAL HAS ITS OWN SET OF OFFICERS, AS DOES THE COUNCIL.  THE
 COUNCIL ACTS AS THE EXCLUSIVE BARGAINING AGENT OF THE SO-CALLED
 "BLUE-COLLAR" EMPLOYEES AT THE SHIPYARD.  THE UNION MEMBERS ALL BELONG
 TO ONE OF THE LOCAL TRADE UNIONS WHICH COMPOSE THE COUNCIL.
 
    2.  JOSEPH CLARKE WAS PRESIDENT OF THE COUNCIL UNTIL MARCH WHEN HE
 WAS SUCCEEDED BY WILLIAM REIL.  FRANK MCHALE IS CURRENTLY RECORDING
 SECRETARY OF THE COUNCIL AND, FOR THE PAST FOUR YEARS, HAS BEEN THE
 COUNCIL'S CHIEF NEGOTIATOR OF THE CONTRACT.  MR. MCHALE HAS ALSO BEEN
 THE PRESIDENT AND BUSINESS MANAGER OF LOCAL 97 FOR APPROXIMATELY SEVEN
 YEARS.  OTHER COUNCIL OFFICERS CONSIST OF A CORRESPONDING SECRETARY,
 TREASURER, SERGEANT-AT-ARMS, AND THREE TRUSTEES.
 
    3.  STEWARDS ARE APPOINTED BY THE COUNCIL, ON RECOMMENDATIONS OF THE
 LOCALS.  EACH STEWARD IS SCHOOLED TO REPRESENT EMPLOYEES.  ALL CONTACTS
 WITH MANAGEMENT ARE HANDLED BY STEWARDS AND OFFICERS OF THE COUNCIL.
 STEWARDS NORMALLY REPRESENT EMPLOYEES IN THEIR LOCAL.  HOWEVER, THEY MAY
 REPRESENT EMPLOYEES IN OTHER LOCALS, IN SOME CIRCUMSTANCES, SUCH AS THE
 SITUATION ON BOARD A SHIP WHERE A CONGLOMORATE OF TRADES IS WORKING.
 IF, FOR PERSONAL REASONS, AN EMPLOYEE DOES NOT WISH TO BE REPRESENTED BY
 A STEWARD IN HIS OWN LOCAL, PERMISSION MUST BE SOUGHT FROM THE COUNCIL,
 AND A COUNCIL OFFICER WILL HANDLE THE MATTER.  SEVERAL YEARS AGO THERE
 WER- ALSO LOCAL STEWARDS, AS OPPOSED TO COUNCIL STEWARDS;  BUT THEY WERE
 NOT AS KNOWLEDGEABLE AND WOULD HANDLE THE GRIEVANCE PROCEDURE ONLY UP
 TO
 A CERTAIN STEP.
 
    4.  A DISCIPLINARY ACTION BY THE SHIPYARD AGAINST A BARGAINING UNIT
 EMPLOYEE, INCLUDING A SUSPENSION OF 30 DAYS OR LESS, IS SUBJECT TO
 APPEAL UNDER A "SOLE AND EXCLUSIVE" NEGOTIATED GRIEVANCE PROCEDURE
 PROVIDED FOR UNDER THE COLLECTIVE BARGAINING AGREEMENT.  (R 2.44.46) AN
 EMPLOYEE "MAY SEEK ASSISTANCE FROM THE COUNCIL IN APPEALING SUCH
 ACTION." (R 2.44)
 
    5.  WHEN AN EMPLOYEE USES THE NEGOTIATED GRIEVANCE PROCEDURE AND "HAS
 A REPRESENTATIVE, THE REPRESENTATIVE MUST BE AN INDIVIDUAL APPOINTED OR
 APPROVED BY THE COUNCIL." (R 2.48) THE PURPOSE OF ALLOWING AN
 INDIVIDUAL, NOT APPOINTED BY THE COUNCIL, TO REPRESENT AN EMPLOYEE WAS
 EXPLAINED, BY MR. MCHALE, AS BEING A "LOOPHOLE," TO ALLOW AN ATTORNEY,
 ON RETAINER FROM THE COUNCIL, TO REPRESENT AN EMPLOYEE, AND TO COVER THE
 CONTRACT LIMITATION IN THE NUMBER OF STEWARDS, WHICH IS 1 FOR EVERY 85
 EMPLOYEES IN A UNIT.  (TR. 251)
 
    6.  R. CAMPBELL, AN EMPLOYEE RELATIONS OFFICER OF THE SHIPYARD, FOR
 FIVE YEARS, HAS NEVER KNOWN THE COUNCIL TO ALLOW A PRIVATE (AS DISTINCT
 FROM A UNION) ATTORNEY TO REPRESENT A GRIEVANT.  NOR HAS HE EVER KNOWN
 THE COUNCIL TO WITHHOLD APPROVAL OF AN INDIVIDUAL CHOSEN BY AN EMPLOYEE
 TO REPRESENT HIM.  MR. CAMPBELL INTERPRETS THE CONTRACT TO ALLOW THE
 COUNCIL TO PERMIT USE OF A PRIVATE ATTORNEY.
 
    7.  THE COUNCIL HAS NEVER GRANTED APPROVAL FOR AN EMPLOYEE TO BRING
 IN HIS OWN ATTORNEY FOR USE IN A GRIEVANCE PROCEDURE, AS IT BELIEVES
 THIS WOULD DILUTE ITS STATUS AS EXCLUSIVE REPRESENTATIVE.  SEE TR 254.
 /3/
 
    B.  FACTS RELATIVE TO THE CHARGING PARTY
 
    1.  ROBERT COSDEN IS A SHEET-METAL WORKER IN SHOP 17 OF THE SHIPYARD
 AND MEMBER OF THE BARGAINING UNIT REPRESENTED BY LOCAL 97 AND THE
 COUNCIL.
 
    2.  DURING HIS FIRST TERM OF SHIPYARD EMPLOYMENT, 1966-1968, HE WAS A
 MEMBER OF LOCAL 97.  DURING HIS PRESENT TERM, WHICH COMMENCED IN 1972,
 HE HAS REFUSED TO JOIN AND HAS ACTIVELY ENCOURAGED OTHERS TO DROP THEIR
 MEMBERSHIP.  ALL THE MEMBERS OF HIS CARPOOL HAVE DONE SO.  IN 1972, WHEN
 ASKED TO REJOIN LOCAL 97, MR. COSDEN TOLD HIS HEAD SHOP STEWARD, JOSEPH
 BIELLA, THAT HE DID NOT "LIKE THEIR TACTICS." (TR 25) ON SEVERAL
 OCCASIONS, HE TOLD FELLOW EMPLOYEES THAT THE UNION /4/ "ONLY TAKE(S)
 CARE OF THEIR PALS." (TR 25) OTHER UNION OFFICIALS AWARE OF MR.
 COSDEN'S ANTI-UNION FEELINGS AND ACTIVITIES ARE JOSEPH NAVES, A STEWARD,
 CHARLES KESSLER, A STEWARD IN SHOP 17, JOHN STEIGER, NOW A FOREMAN IN
 SHOP 17 BUT FORMERLY PRESIDENT AND BUSINESS AGENT FOR LOCAL 97, O.
 CANCILLA, AN OFFICER OF LOCAL 97 AND A DELEGATE TO THE COUNCIL, AND MR.
 MCHALE, NOW PRESIDENT AND BUSINESS AGENT FOR LOCAL 97.  MR. COSDEN'S
 DISLIKE OF THE UNION IS SHARED BY HIS FATHER, WHO WAS A TEMPORARY
 SUPERVISOR IN SHOP 17, DURING THE PERIOD OF THE INCIDENT THAT OCCURRED
 BETWEEN MR. COSDEN AND MR. KESSLER, AND WHICH IS THE CAUSE OF THE
 DISCIPLINARY ACTION TAKEN AGAINST MR.  COSDEN.  THERE WAS NO EVIDENCE OF
 ANY ANTI-UNION ACTIVITY, ON THE PART OF MR. COSDEN, IMMEDIATELY
 PRECEEDING THE INCIDENT WITH MR. KESSLER WHICH IS THE FOCUS OF THIS
 PROCEEDING.
 
    3.  MR. COSDEN WAS CHARACTERIZED BY FOUR FELLOW EMPLOYEES AS BEING
 "AGGRESSIVE," "QUICK WITH THE TEMPER," "THE TYPE OF PERSON TO BELITTLE
 ANOTHER EMPLOYEE," "ANTISEMITE," ONE WHO USES "RACIAL SLURS," "LIKES TO
 . . . RIDE OTHER PEOPLE," ONE WHO HAS ENGAGED IN "CONFRONTATION(S)" WITH
 FELLOW WORKERS, AND ONE WHO LIKES "TO PUSH A MAN TO A LIMIT, SEE HOW
 MUCH HE CAN TAKE AND THEN CHALLENGE HIM TO PHYSICAL COMBAT." (TR
 145-146, 175, 219, 232-234, AND 239-240) ONE OF THE WITNESSES, WHO
 TESTIFIED TO MR. COSDEN'S LIKING TO RIDE OTHER PEOPLE, WAS CHARLES
 GOETZ.  MR. GOETZ IS NOT A MEMBER OF LOCAL 97 AND WAS NOT SHOWN TO HAVE
 ANY CAUSE TO BE ANTAGONISTIC TO MR. COSDEN. THE OTHER THREE WITNESSES
 WERE UNION MEMBERS AND INCLUDE CHARLES KESSLER. ALTHOUGH ARGUMENTS AND
 USE OF OBSCENE LANGUAGE ARE COMMONPLACE IN SHOP 17, MR. COSDEN'S CONDUCT
 IS NOT CONSIDERED NORMAL BY HIS PEERS.
 
    4.  ON FEBRUARY 14, AND CONTINUING OVER A NUMBER OF DAYS, MR.  COSDEN
 ENGAGED IN THREATENING CONDUCT TOWARDS MR. KESSLER.  MR. COSDEN WAS
 PROVOKED BY MR. KESSLER'S REFERRING TO HIM AS "JUST A BLANKING (USE OF
 PROFANITY) KNOW-IT-ALL," IN A CONVERSATION WITH A FELLOW EMPLOYEE.  (TR
 29) ON SEVERAL OCCASIONS, IN SHOP 17, AT THE TIME CLOCK, AND IN THE
 SHIPYARD PARKING LOT, MR. COSDEN CHALLENGED MR. KESSLER TO A FIGHT,
 CALLED HIM OBSCENE NAMES, HIT MR.  KESSLER'S CAR WITH HIS FISTS, AND
 THREATENED TO "GET" HIM (TR 172).  MR. COSDEN IS SIX FEET TALL AND
 WEIGHS 220 POUNDS.  MR. KESSLER IS A SMALLER MAN AND IS NOT "AN
 AGGRESSIVE TYPE OF PERSON." (TR 172)
 
    5.  MR. GOETZ WAS THE ONE TO WHOM MR. KESSLER WAS TALKING, ON
 FEBRUARY 14, WHEN MR. COSDEN HEARD HIMSELF REFERRED TO AS A
 "KNOW-IT-ALL." MR. GOETZ HEARD MR. COSDEN "SORT OF EXPLODE," CALL MR.
 KESSLER AN OBSCENE NAME, AND THREATEN TO "GET HIM." (TR 172) HE HEARD
 MR. KESSLER REPLY:  "(JUST) LEAVE ME ALONE IF YOU DON'T LIKE ME, DON'T
 TALK TO ME." (TR 172) MR. GOETZ HEARD MR. COSDEN CONTINUE TO THREATEN
 MR. KESSLER, OVER A PERIOD OF TWO OR THREE DAYS, UNTIL FINALLY "THE
 ATMOSPHERE WAS SO BAD" THAT MR. GOETZ WENT TO A SUPERVISOR AND ASKED HIM
 TO TALK TO MR. COSDEN.  (TR 172) MR. GOETZ COMPLAINED TO MANAGEMENT
 BEFORE ANYONE FROM THE COUNCIL OR LOCAL 97 DID SO.  MR. GOETZ HAS BEEN
 AN EMPLOYEE OF THE SHIPYARD FOR 14 YEARS AND HAD NEVER WITNESSED AN
 ARGUMENT BETWEEN EMPLOYEES "TO THIS DEGREE." (TR 173).  IT IS THE FIRST
 ARGUMENT HE EVER REPORTED.  MR. GOETZ DESCRIBED THE USUAL TYPE OF
 ARGUMENT BETWEEN EMPLOYEES AND CONTRASTED IT TO MR. COSDEN'S BEHAVIOR:
 
    BUT THIS GUY (MR. COSDEN) KNEW HE HAD HIM ON THE ROPES AND HE WASN'T
 GOING TO LET HIM
 
    GO.  THERE WAS NO WAY HE WAS GOING TO KEEP OUT OF HAVING A FIGHT;  HE
 WANTED TO FIGHT.  (TR
 
    174)
 
    MR. GOETZ WITNESSED MR. KESSLER'S RESPONSES TO MR. COSDEN'S
 CONTINUING THREATS AND TESTIFIED THAT MR. KESSLER TRIED TO "JOKE IT
 OFF," AT FIRST, AND THEN "IGNORE HIM," AND "TRY TO AVOID IT." (TR
 174-175) MR. GOETZ APPEARED SINCERE AND TRUTHFUL.  AS A NON-UNION
 MEMBER, HE WOULD BEAR NO ANIMUS TOWARD MR. COSDEN BECAUSE OF MR.
 COSDEN'S ANTI-UNION ACTIVITIES.  HIS TESTIMONY, AS TO THE EVENTS HE
 WITNESSED, IS GIVEN PARTICULAR WEIGHT.
 
    6.  THE SUPERVISOR TO WHOM MR. GOETZ COMPLAINED ABOUT MR. KESSLER'S
 BEHAVIOR WAS CHARLES WRIGHT.  MR. WRIGHT ADMONISHED THE PARTIES TO THE
 ARGUMENT:  "LET'S KEEP IT DOWN." (TR 148) MR. WRIGHT, SUBSEQUENTLY, ON
 FEBRUARY 15, TOLD MR. COSDEN TO REPORT TO THE OFFICE OF THE HEAD OF SHOP
 17, JOSEPH SPAVENTA, ABOUT THE ARGUMENT WITH MR. KESSLER.  MR.  COSDEN
 ASKED BILL BURRY /5/ TO "ACCOMPANY ME INTO SPAVENTA'S OFFICE." (TR 32)
 MR. BURRY WAS IN SHOP 17, WAS TREASURER OF LOCAL 97, AND WAS DELEGATE TO
 THE COUNCIL.  MR. COSDEN LIKED MR. BURRY AND FIGURED HE HAD BETTER HAVE
 SOMEONE WITH HIM.  UNDER THE COLLECTIVE BARGAINING AGREEMENT, AT "A
 PRELIMINARY INVESTIGATION OR INQUIRY," PRIOR TO THE INITIATION OF
 DISCIPLINARY ACTION AGAINST AN EMPLOYEE, THE EMPLOYEE MAY BE ACCOMPANIED
 TO THE "DISCUSSION" BY HIS COUNCIL STEWARD OR A FELLOW EMPLOYEE.  (R
 2.43.44) MR. BURRY DID ACCOMPANY MR. COSDEN TO THE MEETING.  MR.
 SPAVENTA QUESTIONED MR.  COSDEN ABOUT ALLEGATIONS "OF BEATING UP MR.
 KESSLER." (TR 32) MR. COSDEN DENIED BEATING HIM UP, BUT CONCEDED HE HAD
 AN ARGUMENT WITH HIM.  MR. SPAVENTA TOLD HIM TO REPORT BACK TO WORK.
 
    7.  MR. COSDEN TESTIFIED THAT SHORTLY AFTER THE MEETING WITH MR.
 WRIGHT, HIS FATHER TOLD HIM THAT:
 
    BILL BURRY SAID HE COULD NO LONGER REPRESENT ME.  HE HAD SPOKEN TO
 MR. MCHALE AND
 
    MR. MCHALE SAID THERE'S A CONFLICT OF INTEREST AND HE IS NOT GOING TO
 REPRESENT ME.  (TR 33)
 
    NEITHER THE FATHER NOR MR. BURRY WAS CALLED TO TESTIFY.  THE QUOTED
 HEARSAY EVIDENCE IS CONSIDERED ONLY FOR THE FACT THAT MR. COSDEN WAS
 TOLD THIS BY HIS FATHER, AND NOR FOR THE TRUTH OF WHAT WAS TOLD.  MR.
 BURRY NEVER SPOKE TO MR. COSDEN AGAIN;  AND MR.  COSDEN NEVER REQUESTED
 FURTHER REPRESENTATION FROM MR. BURRY.  MR. MCHALE TESTIFIED THAT HE
 TOLD MR.  BURRY THAT HE WOULD NOT BE REPRESENTING MR. COSDEN IN ANY
 GRIEVANCE PROCEEDING AND THAT, IF MR.  COSDEN CAME BACK TO HIM FOR ANY
 APPEALS, MR. BURRY SHOULD TELL MR. COSDEN TO COME TO MR. MCHALE, WHO
 WOULD MAKE SURE THAT HE GOT "PROPER REPRESENTATION." (TR 286) MR. BURRY
 NEVER TOLD MR. COSDEN ANYTHING.  MR. MCHALE EXPLAINED THAT MR. BURRY WAS
 NOT A COUNCIL STEWARD AND DID NOT HAVE ENOUGH EXPERIENCE TO HANDLE
 HEARINGS.  HE FURTHER EXPLAINED THAT HE "WOULD APPROVE NO ONE TO
 REPRESENT AN EMPLOYEE AT A GRIEVANCE PROCEDURE WHO WAS NOT TRAINED TO DO
 SO FOR FEAR OF BEING CHARGED AGAINST YOU FOR LOCAL REPRESENTATION." (TR
 287) AT ONE TIME THERE WAS SUCH A THING AS A LOCAL STEWARD, AS OPPOSED
 TO A COUNCIL STEWARD, BUT NOT FOR THE PAST TWO YEARS.  SEE TR 247-248
 AND FINDING A3, SUPRA.  AFTER LEARNING FROM HIS FATHER THAT MR. BURRY
 WOULD NOT BE REPRESENTING HIM, MR. COSDEN ASKED A FRIEND WHO, "FROM THE
 UNION," WOULD BE "ANY GOOD." (TR 33) THE FRIEND SUGGESTED JOSEPH BENDIG,
 IN SHOP 11.  /6/ MR. BENDIG OFTEN REPRESENTED EMPLOYEES IN GRIEVANCES,
 AND WAS WILLING TO REPRESENT MR.  COSDEN.  MR. BENDIG WORKED WITH MR.
 COSDEN UP UNTIL TEN MINUTES BEFORE A MARCH 6 INVESTIGATORY CONFERENCE
 WAS HELD WITH A SHIPYARD OFFICIAL.
 
    8.  ON FEBRUARY 16, MR. COSDEN DID ASSAULT MR. KESSLER, IN THE LOCKER
 ROOM, OUT OF THE SIGHT OF WITNESSES.  MR. KESSLER GAVE AN ACCOUNT OF THE
 ASSAULT AND APPEARED TO BE A TRUTHFUL WITNESS.  MR. KESSLER DID NOT
 PROVOKE THE ASSAULT, AND SUFFERED BRUISES ABOUT HIS BODY, AS A RESULT OF
 THE ASSAULT.  MR. COSDEN GAVE TESTIMONY DENYING THAT THE ASSAULT TOOK
 PLACE. HOWEVER, AS A WITNESS, MR. COSDEN APPEARED TO BE EVASIVE AND LESS
 THAN FORTHRIGHT ABOUT THE ENTIRE INCIDENT INVOLVING MR. KESSLER.  MR.
 COSDEN HAD A BULLYING NATURE, AND WAS SPOILING FOR A FIGHT WITH MR.
 KESSLER.  THERE WAS CREDIBLE TESTIMONY OF REPEATED THREATS BY MR.
 COSDEN TO "GET" MR. KESSLER.  UNDER THESE CIRCUMSTANCES, MR. COSDEN'S
 DENIAL OF THE ASSAULT IS NOT CREDITED;  AND MR. KESSLER'S ACCOUNT OF IT
 IS ACCEPTED.
 
    9.  MR. KESSLER IMMEDIATELY COMPLAINED ABOUT THE ASSAULT TO
 MANAGEMENT AND UNION OFFICIALS AND VISITED THE DISPENSARY.  HE ALSO
 REPORTED THE ASSAULT TO SHIPYARD POLICE.  THE USE OF PHYSICAL VIOLENCE
 BY ONE EMPLOYEE AGAINST ANOTHER IS REGARDED BY THE SHIPYARD AS A SERIOUS
 VIOLATION OF WORK RULES;  AND NORMALLY THE OFFENDING EMPLOYEE IS
 PHYSICALLY REMOVED BY BASE POLICE, PENDING DISCIPLINARY ACTION.
 ALTHOUGH THE POLICE DID INVESTIGATE THE ASSAULT REPORTED TO THEM, THEY
 TOOK NO ACTION AGAINST MR. COSDEN, POSSIBLY BECAUSE THERE WERE NO
 WITNESSES.
 
    10.  BY FEBRUARY 28, MR. MCHALE BECAME CONCERNED THAT THE SHIPYARD
 HAD NOT RESPONDED TO MR. KESSLER'S COMPLAINT.  MR. MCHALE WAS
 REPRESENTING MR. KESSLER IN HIS COMPLAINT.  MR. MCHALE FELT HE HAD AN
 OBLIGATION TO HELP MR. KESSLER.  ALSO, HE WAS CONCERNED BECAUSE MR.
 KESSLER WAS A UNION STEWARD, AND THAT IT MIGHT APPEAR THAT THE FAILURE
 OF THE SHIPYARD TO ACT WAS A WAY OF DEMONSTRATING ITS APPROVAL OF
 ATTACKS ON UNION OFFICIALS AND REPRESENTATIVES.  HE ALSO WAS CONCERNED
 THAT NO ACTION WAS TAKEN BECAUSE MR. COSDEN'S FATHER WAS A TEMPORARY
 SUPERVISOR IN SHOP 17, AT THE TIME THE INCIDENT TOOK PLACE.  HE WAS ALSO
 CONCERNED THAT EMPLOYEES SHOULD NOT HAVE TO COME TO WORK AND FACE
 THREATS TO THEIR SAFETY FROM FELLOW EMPLOYEES.
 
    11.  ACCORDINGLY, ON FEBRUARY 28, MR. MCHALE, AS PRESIDENT OF LOCAL
 97, WROTE A LETTER TO THE SHIPYARD COMMANDER.  HE ASKED THE COMMANDER TO
 "CONSIDER THIS LETTER AS A FORMAL REQUEST THAT YOU TAKE SUCH ACTION AS
 IS NECESSARY TO REMOVE THE ABOVE-NAMED INDIVIDUAL (ROBERT COSDEN) FROM
 THE LOCATION OF HIS PRESENT EMPLOYMENT INASMUCH AS HE CONSTITUTES A
 THREAT TO THE HEALTH, SAFETY AND WELL BEING OF THE OTHER EMPLOYEES IN
 THE SHOP." (GC 2.1) IN THE LETTER, MR. MCHALE DETAILED BASICALLY WHAT
 HAS BEEN FOUND IN FINDING B 3, 4, 5, AND 8, SUPRA.  HE LABELED THE
 ASSAULT UPON MR. KESSLER AS "DELIBERATE, INTENTIONAL AND UNPROVOKED."
 (GS 2.2) HE ASKED THE COMMANDER TO "IMMEDIATELY INVESTIGATE THIS
 SITUATION AND TAKE SUCH ACTION AGAINST MR. COSDEN AS YOU DEEM
 APPROPRIATE UNDER THE CIRCUMSTANCES." (GC 2.2) HE WARNED THE COMMANDER
 THAT "THE PRESENCE OF SUCH AN INDIVIDUAL AS COSDEN, AMONG THE MEN IN THE
 SHOP, CONSTITUTES A THREAT TO THEIR HEALTH, SAFETY AND WELL BEING." (GC
 2.2) HE STATED THAT THE SHIPYARD MIGHT BE HELD FINANCIALLY LIABLE FOR
 ALL INJURIES SUSTAINED, IN THE EVENT OF ANY FUTURE ASSAULT BY MR.
 COSDEN.  HE ASKED TO BE APPRISED OF WHAT ACTION WAS TO BE TAKEN, "SO
 THAT THE METAL TRADES COUNCIL MAY BE FULLY APPRISED IN CONNECTION
 THEREWITH." (GS 2.2) A COPY OF THE LETTER WAS SENT TO THE COUNCIL.  MR.
 MCHALE TESTIFIED, AT THE INSTANT HEARING, THAT BY REQUESTING "REMOVAL"
 OF MR. COSDEN HE MEANT A "PHYSICAL SHUFFLING" OF EMPLOYEES, A NOT
 UNCOMMON PRACTICE IN THE SHIPYARD.  (TR 306)
 
    12.  A COPY OF THE MCHALE LETTER WAS GIVEN OR SHOWN TO MR. COSDEN BY
 MR. SPAVENTA, ACTING SHOP HEAD, IN FEBRUARY.  MR. COSDEN TESTIFIED THAT
 MR. SPAVENTA WARNED HIM THAT THE UNION "WAS OUT FOR HIS JOB" AND THAT HE
 SHOULD GET HIMSELF A LAWYER.  (TR 39) THIS HEARSAY WAS NOT RECEIVED FOR
 THE TRUTH OF WHETHER THE UNION WAS OUT FOR HIS JOB, BUT FOR THE PURPOSE
 OF SHOWING THAT MR. COSDEN WAS TOLD THIS, WHETHER TRUE OR NOT, AND IT
 ACCOUNTS FOR HIS ACTION IN GETTING A LAWYER.
 
    13.  MR. COSDEN DID, THEREAFTER, OBTAIN THE SERVICES OF A LAWYER,
 JOHN BARBOUR.
 
    14.  ON MARCH 6, J. CAMPBELL, PRODUCTION SUPERINTENDENT FOR SHOP 17,
 HELD AN INVESTIGATORY CONFERENCE ON THE COSDEN-KESSLER MATTER.  IN
 ATTENDANCE WERE MR.  COSDEN, MR. BARBOUR, HIS ATTORNEY, TERRY GUERIERA,
 A LABOR-MANAGEMENT SPECIALIST FOR THE SHIPYARD, AND MR. CLARKE,
 PRESIDENT OF THE COUNCIL.  THE SHIPYARD HAD NOTIFIED THE COUNCIL OF THIS
 MEETING.  NORMALLY, THIS NOTIFICATION IS NOT DONE, WITH INVESTIGATORY
 CONFERENCES.  IT MAY HAVE BEEN DONE HERE IN RESPONSE TO MR. MCHALE'S
 FEBRUARY 28 LETTER, ASKING THAT THE COUNCIL BE "FULLY APPRISED" OF WHAT
 ACTION THE SHIPYARD WAS TAKING IN THE MATTER.  SEE FINDING B 11, SUPRA.
 MR. CLARKE WAS PRESENT ONLY AS AN OBSERVER.  MR. BENDIG HAD ASKED
 PERMISSION FROM THE COUNCIL TO ATTEND, AND BEEN TOLD THAT MR. CLARKE
 WOULD REPRESENT THE COUNCIL INSTEAD.  MR. MCHALE TESTIFIED THAT MR.
 BENDIG ASKED TO ATTEND AS THE COUNCIL REPRESENTATION, NOT THAT OF MR.
 COSDEN.  MR. COSDEN TESTIFIED THAT MR. BENDIG TOLD HIM, TEN MINUTES
 BEFORE THE CONFERENCE STARTED, THAT MR. CLARKE WOULD NOT ALLOW HIM (MR.
 BENDIG) TO REPRESENT MR. COSDEN.  SEE TR 95-96.  NEITHER MR. BENDIG NOR
 MR. CLARKE WAS CALLED AS A WITNESS AND THE TESTIMONY OF MR. COSDEN, AS
 TO WHAT HE WAS TOLD BY MR. BENDIG, WAS NOT ADMITTED FOR THE TRUTH OF
 WHAT HE WAS TOLD.  SEE TR 42.  THE COUNCIL LEARNED, FOR THE FIRST TIME,
 AT THE MARCH 6 CONFERENCE, THAT MR. COSDEN HAD RETAINED AN ATTORNEY.
 MR. CLARKE DID NOT OBJECT.  AT THE CONFERENCE, J. CAMPBELL READ
 STATEMENTS FROM THE CASE FILE, "TURNED BEET RED," AND SAID HE WAS
 "RECOMMENDING YOU (ROBERT COSDEN) BE REMOVED FROM THE NAVAL SHIPYARD,
 FIRED." (TR 44) MR. COSDEN AND MR. BARBOUR WERE GIVEN STATEMENTS OR
 CROSS-EXAMINE WITNESSES.
 
    15.  IN HIS CLOSING ARGUMENT, MR. BATES RELIES UPON HEARSAY
 TESTIMONY, GIVEN BY MR. COSDEN, ABOUT A CLERK WORKING FOR J. CAMPBELL
 WHO TOLD MR. COSDEN THAT J. CAMPBELL HAD CHANGED HIS MIND, WAS GOING TO
 RECOMMEND THAT NOTHING BE DONE FOR LACK OF EVIDENCE, AND WAS UNDER A LOT
 OF PRESSURE.  SEE TR 336 AND 48.  NEITHER J. CAMPBELL NOR THE CLERK WAS
 CALLED AS A WITNESS.  I DO NOT CREDIT THIS HEARSAY TESTIMONY AS
 ESTABLISHING THE TRUTH ABOUT J. CAMPBELL'S INTENT IN THIS MATTER.  SEE
 TR 49.
 
    16.  ON MARCH 13, THE LAW FIRM REPRESENTING RESPONDENTS WROTE TO THE
 SHIPYARD COMMANDER ABOUT THE COSDEN-KESSLER INCIDENT.  ON MARCH 20, THE
 COMMANDER REPLIED TO THE MARCH 13 LETTER OF THE LAW FIRM AND TO MR.
 MCHALE'S FEBRUARY 28 LETTER.  HE INFORMED THEM THAT "THE MATTERS
 REPORTED BY YOU ARE BEING INVESTIGATED" AND THAT UPON "COMPLETION OF
 THAT INVESTIGATION, APPROPRIATE ACTION WILL BE TAKEN." (GC 4) A COPY OF
 THE COMMANDER'S LETTER WAS SENT TO THE COUNCIL.
 
    17.  ON MARCH 30, MR. COSDEN RECEIVED FROM J. CAMPBELL A MEMORANDUM
 GIVING HIM NOTICE OF A PROPOSED SUSPENSION FOR TEN DAYS FOR "CONDUCT
 UNBECOMING A GOVERNMENT EMPLOYEE." (GC 3.1) THE MEMORANDUM STATED THAT
 IT WAS BASED ON CERTAIN FACTS WHICH ARE GENERALLY THOSE FOUND IN
 FINDINGS B 4, 5, 6, 8, AND 9, SUPRA.  MR. COSDEN WAS INFORMED OF HIS
 RIGHT TO ANSWER THE PROPOSED ACTION, PERSONALLY OR IN WRITING, TO JOSEPH
 ORCHON, STRUCTURAL GROUP SUPERINTENDENT, AND TO BE ACCOMPANIED "BY A
 REPRESENTATIVE OF YOUR CHOICE IF YOU MAKE A PERSONAL REPLY TO THIS
 NOTICE.: (GC 3.2) HE WAS ALSO ADVISED THAT HE COULD CONTACT HIS EMPLOYEE
 RELATIONS SPECIALIST IF HE HAD ANY QUESTIONS.
 
    18.  ON APRIL 4, MR. BARBOUR WROTE TO MR. ORCHON, MADE VARIOUS
 ALLEGATIONS, AND REQUESTED AN OPPORTUNITY FOR HIMSELF AND MR. COSDEN TO
 APPEAR PERSONALLY BEFORE HIM, AFTER RECEIVING COPIES OF ANY DOCUMENTARY
 INFORMATION PERTAINING TO THE CASE, AND TO EXAMINE THE ACCUSERS AND
 WITNESSES IN THE MATTER.
 
    19.  MEANWHILE, THE COUNCIL HAD NOT RECEIVED NOTICE OF THE PROPOSED
 ACTION AND, ON APRIL 18, HAD ITS ATTORNEY WRITE TO THE SECRETARY OF THE
 NAVY ABOUT THE "UNWARRANTED ASSAULT" UPON MR. KESSLER BY MR. COSDEN.  IN
 THE LETTER THE COMPLAINT WAS MADE THAT THE COMMANDER OF THE SHIPYARD HAD
 NOT ANSWERED THE MARCH 13 LETTER OF THE ATTORNEY, OR THE FEBRUARY 28
 LETTER OF THE "COUNCIL," IN WHICH REQUESTS WERE MADE "THAT APPROPRIATE
 STEPS BE UNDERTAKEN TO REMOVE THE GUILTY EMPLOYEE FROM THE PREMISES AND
 TO TAKE SUCH STEPS AS WERE NECESSARY SO AS TO INSURE AGAINST ANY
 REPETITION IN THE FUTURE OF ANY SUCH ASSAULT UPON MR. KESSLER OR OTHER
 EMPLOYEES SIMILARLY SITUATED." (GC 5.1) THE "GUILTY PARTY" WAS A
 REFERENCE TO MR. COSDEN.  THE LETTER ASKED FOR "AN IMMEDIATE
 INVESTIGATION INTO THIS ENTIRE SITUATION AND, FURTHER, TO INSTITUTE AND
 IMPLEMENT SUCH CORRECTIVE ACTION AS MAY BE NECESSARY TO REMOVE THE
 GUILTY PARTY FROM THE PREMISES AND TO INSURE THE FACT THAT EMPLOYEES MAY
 WORK AT THE SHIPYARD WITHOUT FEAR OF ASSAULT." (GC 5.2) THE LETTER
 FURTHER REQUESTS THAT THE SHIPYARD COMMANDER BE INSTRUCTED TO REPLY TO
 LETTERS RECEIVED FROM THE COUNCIL AND ITS ATTORNEY AND TO ADMONISH THE
 COMMANDER FOR HIS FAILURE TO DO SO.  (GC 5.2) (APPARENTLY THE REPLY OF
 THE COMMANDER, DATED MARCH 20, HAD NOT BEEN RECEIVED BY THE COUNCIL OR
 ITS ATTORNEY.  SEE FINDING B 16, SUPRA.
 
    20.  SOMETIME AFTER THE APRIL 18 LETTER TO THE SECRETARY OF THE NAVY,
 MR. COSDEN CONSULTED WITH MS. GUERIERA, THE EMPLOYEE RELATIONS
 SPECIALIST FOR THE SHIPYARD.  SHE EXPLAINED THE NEXT PROCEDURE TO MR.
 COSDEN.  ACCORDING TO MR. COSDEN, MS. GUERIERA INFORMED HIM THAT:
 "YOU'RE GETTING OFF LIGHT WITH TEN DAYS;" AND SHE HANDED HIM THREE
 LETTERS TO READ.  (TR 52) SHE SHOWED HIM THE LETTER OF APRIL 18 (SEE
 FINDING B 19, SUPRA), THE LETTER OF MARCH 20 (SEE FINDING B 16, SUPRA),
 AND THE LETTER OF FEBRUARY 28 (SEE FINDING B 11, SUPRA).  MS. GUERIERA
 WAS NOT CALLED TO TESTIFY;  AND HER STATEMENT, ABOUT "GETTING OFF LIGHT"
 WAS ADMITTED ONLY TO SHOW THE POSITION A SHIPYARD OFFICIAL WAS TAKING IN
 CONNECTION WITH THE CHARGES LODGED AGAINST MR. COSDEN.  SEE TR 53.
 
    21.  ON APRIL 27, MR. BARBOUR MADE A FURTHER WRITTEN REPLY TO MR.
 ORCHON, AFTER RECEIPT OF COPIES OF THE CASE FILE MATERIAL.
 
    22.  ON MAY 9, MR. ORCHON SENT A MEMORANDUM TO MR. COSDEN IN WHICH HE
 SUSTAINED THE SPECIFICATIONS RELATING TO HIS "UNBECOMING CONDUCT AS A
 GOVERNMENT EMPLOYEE ON 14, 15 AND 16 FEBRUARY 1979," AND FOUND THE
 10-DAY SUSPENSION TO BE "WARRANTED." (GC 7.1) HE INFORMED MR. COSDEN OF
 THE CONSEQUENCES OF THE SAME OR SIMILIAR OFFENSES, INCLUDING POSSIBLE
 REMOVAL, AND ADVISED HIM OF HIS RIGHTS TO APPEAL AND SEEK THE ASSISTANCE
 OF THE COUNCIL.  THE COUNCIL DID NOT RECEIVE A COPY OF THIS DECISION.
 THE ONLY APPEAL OPEN TO MR. COSDEN WAS THE NEGOTIATED GRIEVANCE
 PROCEDURE.  SEE FINDINGS A 4 AND 5, SUPRA.
 
    23.  MR. COSDEN SERVED HIS 10-DAY SUSPENSION, WITHOUT PAY, ON MAY 14
 THROUGH MAY 25.
 
    24.  ON MAY 21, MR. BARBOUR FILED AN APPEAL UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE AND ALSO UNDER THE NAVY GRIEVANCE PROCEDURE WHICH
 DID NOT REQUIRE THE PERMISSION OF THE COUNCIL FOR HIM TO REPRESENT MR.
 COSDEN.  ON JUNE 7, THE SHIPYARD REJECTED USE OF THE NAVY GRIEVANCE
 PROCEDURE.  /7/
 
    25.  ON JUNE 22, MR. ORCHON ADVISED MR. COSDEN THAT A HEARING ON HIS
 GRIEVANCE WOULD BE HELD ON JULY 9 AND THAT ANY REPRESENTATIVE OF HIS
 MUST BE APPOINTED OR APPROVED BY THE COUNCIL.
 
    26.  ON JUNE 26, MR. ORCHON, BY LETTER, ADVISED MR. COSDEN AND MR.
 BARBOUR THAT THE PRESIDENT OF THE COUNCIL, WILLIAM REIL, WOULD NOT
 APPROVE MR. BARBOUR AS MR.  COSDEN'S REPRESENTATIVE.  MR. COSDEN WAS
 ADVISED THAT HE COULD PROCEED WITHOUT REPRESENTATION, OR "REQUEST METAL
 TRADES COUNCIL REPRESENTATION." (GC 12) ON JUNE 29, MR. ORCHON, AGAIN BY
 LETTER, ADVISED MR. BARBOUR THAT THE COUNCIL WOULD NOT LET HIM REPRESENT
 MR. COSDEN, BUT THAT MR. COSDEN "MAY REQUEST METAL TRADES COUNCIL
 REPRESENTATION." (GC 13) A COPY OF THE JUNE 29 LETTER WAS SENT TO MR.
 COSDEN.
 
    27.  MR. COSDEN NEVER WENT TO THE COUNCIL FOR REPRESENTATION.
 HOWEVER, EARLY IN MARCH, THE COUNCIL HAD DECIDED TO APPOINT PAT CARSON
 TO REPRESENT MR. COSDEN, IF REPRESENTATION WAS SOUGHT.  MR. CARSON IS A
 CHIEF SPOKESMAN FOR THE COUNCIL AND VERY SKILLED AND EXPERIENCED IN
 HANDLING GRIEVANCES. MR. COSDEN WAS NEVER TOLD THAT MR. CARSON WOULD
 REPRESENT HIM, IF ASKED, PRIOR TO A JULY 9 MEETING.  MR. COSDEN DID NOT
 KNOW MR. CARSON AND DID NOT BELIEVE THAT HE WOULD BE FAIRLY REPRESENTED
 BY ANYONE APPOINTED BY THE COUNCIL, IN VIEW OF THE LETTERS HE HAD READ.
 SEE FINDING B 20, SUPRA.
 
    28.  THE JULY 9 HEARING WAS A "SECOND STEP NEGOTIATED GRIEVANCE
 HEARING," UNDER THE COLLECTIVE BARGAINING AGREEMENT.  (TR 196) IT
 REPRESENTS THE FIRST OCCASION ON WHICH MR. COSDEN COULD CALL WITNESSES
 AND CROSS-EXAMINE THOSE BEING RELIED UPON BY THE SHIPYARD.  AT THE JULY
 9 HEARING, MR. COSDEN AGAIN EXPRESSED HIS DESIRE TO BE REPRESENTED BY
 HIS ATTORNEY, MR. BARBOUR.  HE NOTED THAT MR. BARBOUR WAS THOROUGHLY
 FAMILIAR WITH HIS CASE AND HAD REPRESENTED HIM THROUGHOUT THIS ENTIRE
 MATTER, WITH THE KNOWLEDGE OF THE COUNCIL AND WITHOUT ANY PREVIOUS
 OBJECTION.  HE EXPRESSED THE VIEW THAT HE HAD COMPLETE FAITH IN MR.
 BARBOUR, WANTED NO OTHER TO REPRESENT HIM, AND FELT IT WOULD BE UNFAIR
 AND AN UNREASONABLE BURDEN TO HAVE TO OBTAIN OTHER REPRESENTATION, AT
 THIS POINT.  MR. COSDEN DECLINED TO PROCEED WITHOUT MR. BARBOUR.  THE
 PRESIDENT OF THE COUNCIL, MR. REIL, WAS ALSO PRESENT AT THE HEARING, AS
 AN OBSERVER.  HE MADE THE STATEMENT THAT MR. COSDEN HAD NEVER BEEN
 DENIED UNION REPRESENTATION AND THAT "HE STILL COULD HAVE UNION
 REPRESENTATION, IF HE SO DESIRES." (GC 14.7) MR. COSDEN REPLIED THAT HE
 HAD ALREADY BEEN REFUSED REPRESENTATION TWICE, FROM MR. BURRY AND MR.
 BENDIG, AND THAT:  "IT WOULD BE FOOLISH TO ASK THEM TO REPRESENT ME
 AGAIN. THEY WOULD EITHER REFUSE ME OR GIVE ME A-- SOMEONE WHO WILL JUST
 STAND IN." (GC 14.8) ACCORDING TO R. CAMPBELL, THE EMPLOYEE RELATIONS
 SPECIALIST FOR THE SHIPYARD, WHO ATTENDED THE JULY 9 HEARING, MR. REIL
 REPLIED:  "(W)ELL, I TOLD YOU THAT YOU COULD HAVE CARSON." (TR 212,
 204).  (IT HAS ALREADY BEEN FOUND THAT NO ONE HAD PREVIOUSLY TOLD MR.
 COSDEN THAT HE COULD HAVE MR. CARSON AS HIS REPRESENTATIVE. SEE FINDING
 B 27, SUPRA.
 
    29.  ON AUGUST 6, MR. COSDEN WAS ADVISED THAT HIS GRIEVANCE WAS
 DENIED, AND THAT HE COULD APPEAL THE DENIAL WITHIN 10 DAYS.  THIS WAS A
 STEP 2 DECISION, UNDER THE NEGOTIATED GRIEVANCE PROCEDURE.
 
    30.  ON AUGUST 13, MR. BARBOUR WROTE THE SHIPYARD OF HIS GRIEVANCE
 PROCEDURE.  ON AUGUST 20, MR. BARBOUR WAS ADVISED THAT DESIRE TO APPEAL
 THE STEP 2 DECISION TO STEP 3 OF THE NEGOTIATED HE WAS NOT APPROVED BY
 THE COUNCIL TO REQUEST MR. COSDEN, BUT THAT MR. COSDEN COULD APPEAL
 HIMSELF.
 
    31.  MR. BARBOUR ADVISED MR. COSDEN NOT TO APPEAL, AS SO MUCH TIME
 AND MONEY HAD ALREADY BEEN SPENT ON THE MATTER.  THE STEP 2 DECISION WAS
 NEVER EFFECTIVELY APPEALED.
 
    32.  ON AUGUST 16, MR. BARBOUR, ACTING ON BEHALF OF MR. COSDEN, FILED
 A CHARGE WITH THE AUTHORITY IN WHICH VIOLATIONS BY RESPONDENTS OF 5
 U.S.C. 7116(B)(1), (2), (3) AND (8) WERE ALLEGED.  ON MAY 1, AN AMENDED
 CHARGE WAS FILED IN WHICH ONLY (B)(1) AND (2) VIOLATIONS WERE ALLEGED.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE GENERAL COUNSEL DID NOT ESTABLISH, BY THE PREPONDERANCE OF THE
 EVIDENCE, THAT RESPONDENTS HAVE ENGAGED IN UNFAIR LABOR PRACTICES
 VIOLATIVE OF SECTIONS 7116(B)(1) AND (2) OF THE STATUTE, AS ALLEGED.
 ACCORDINGLY, THE COMPLAINT SHOULD BE DISMISSED, PURSUANT TO SECTION 7118
 (A)(8) OF THE STATUTE.
 
                 THE ALLEGED SECTION 7116(B)(2) VIOLATION
 
    IT IS THE POSITION OF THE GENERAL COUNSEL THAT THE FEBRUARY 28 AND
 THE APRIL 18 LETTERS OF RESPONDENTS, URGING THE SHIPYARD TO INVESTIGATE
 AND TAKE APPROPRIATE DISCIPLINARY ACTION AGAINST MR. COSDEN, CLEARLY
 ESTABLISH A VIOLATION OF SECTION 7116(B)(2).  SEE TR 341-344.  TO
 SUPPORT THIS ARGUMENT, THE GENERAL COUNSEL NOTES MR. COSDEN'S ANTI-UNION
 ACTIVITY AND THAT SUCH ACTIVITY WAS KNOWN TO UNION OFFICIALS.
 
    SECTION 7116(B)(2) MAKES IT UNFAIR LABOR PRACTICE FOR A LABOR
 ORGANIZATION "TO CAUSE OR ATTEMPT TO CAUSE AN AGENCY TO DISCRIMINATE
 AGAINST ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER
 THIS CHAPTER." ONE SUCH RIGHT IS THE RIGHT TO ENGAGE IN ANTI-UNION
 ACTIVITY.  SEE SECTION 7102, QUOTED IN FOOTNOTE 1, SUPRA.
 
    WHILE RESPONDENTS' LETTERS MAY WELL HAVE PRODDED THE SHIPYARD INTO
 EXPEDITING DISCIPLINARY ACTION AGAINST MR. COSDEN, THE EVIDENCE IS NOT
 CONVINCING THAT RESPONDENTS HAD THE IMPROPER MOTIVE IN WRITING THEM THAT
 THE GENERAL COUNSEL CLAIMS, NAMELY TO RETALIATE AGAINST MR. COSDEN
 BECAUSE OF HIS KNOWN UNION ANIMUS.  THIS ANIMUS WAS OF LONG STANDING AND
 HAD NEVER BEFORE PROVOKED THE RESPONDENTS INTO INSTIGATING ANY ACTION
 AGAINST MR. COSDEN, EVEN THOUGH HIS BULLYING OF FELLOW EMPLOYEES HAD
 PROVIDED AN EXCUSE TO DO SO, IN THE PAST.  IT WAS NOT SHOWN THAT
 RESPONDENTS HAD TREATED OTHER EMPLOYEES DIFFERENTLY, OR THAT THEY WERE
 REACTING TO ANY RECENT OUTBURST OF ANTI-UNION ACTIVITY ON THE PART OF
 MR. COSDEN WHICH COULD BE PERCEIVED AS INVITING RETALIATION OVER SUCH
 ACTIVITY.  INSTEAD, THE EVIDENCE DEMONSTRATES THAT RESPONDENTS WERE
 REACTING TO THREATS TO THE HEALTH AND SAFETY OF ANOTHER BARGAINING-UNIT
 EMPLOYEE, TO CONDUCT THAT WAS DISRUPTING THE WORK IN SHOP 17, AND TO
 JUSTIFIABLE MATTER, PERHAPS BECAUSE MR. COSDEN'S FATHER WAS A TEMPORARY
 SUPERVISOR, AND PERHAPS BECAUSE THE SHIPYARD WAS WILLING TO CONDONE AN
 ASSAULT WHEN IT WAS A UNION STEWARD TAKING THE BEATING.  THESE WERE ALL
 MATTERS OF LEGITIMATE CONCERN TO A LABOR ORGANIZATION;  AND FAILURE BY
 RESPONDENTS TO TAKE SOME ACTION TO AMELIORATE THE SITUATION WOULD HAVE
 BEEN A DERELICTION OF DUTY TO BARGAINING-UNIT EMPLOYEES.  THE LETTERS
 WRITTEN WERE NOT AN IMPROPER MEASURE TO TAKE, UNDER THE CIRCUMSTANCES OF
 THIS CASE.  THE CONCERNS EXPRESSED IN THE LETTERS WERE NOT SHOWN TO BE
 PRETEXUAL COVER-UPS FOR WHAT THE GENERAL COUNSEL ALLEGES TO BE THEIR
 REAL PURPOSE, TO RETALIATE AGAINST MR. COSDEN FOR THIS UNION ANIMUS, BY
 GETTING THE SHIPYARD TO TAKE DISCIPLINARY MEASURES AGAINST HIM.  THE
 SITUATION HERE IS TO BE COMPARED WITH THAT IN WRIGHT LINE, 251 NLRB 150,
 105 LRRM 1169 (8/27/80), RELIED UPON BY RESPONDENTS AT PAGES 15-17 OF
 THEIR BRIEF.  IN WRIGHT LINE, THE NATIONAL LABOR RELATIONS BOARD WAS
 DEALING WITH THE SITUATION OF AN EMPLOYEE WHO HAD BEEN DISCHARGED,
 ALLEGEDLY FOR DISCREPANCIES FOUND IN TIMESHEETS.  THE BOARD FOUND THAT
 SUCH DISCREPANCIES WERE COMMONPLACE AND GENERALLY RESULTED IN NO
 DISCIPLINE WHATSOEVER, THAT THE EMPLOYEE HAD ACTUALLY PERFORMED THE JOBS
 ON THE DATE SHOWN ON THE TIMESHEET ALTHOUGH NOT AT THE TIME INDICATED ON
 THE TIMESHEET, THAT THE DISCREPANCIES WERE FOUND AFTER A SUPERVISOR
 ORDERED A "CHECK" ON THE EMPLOYEE, DESPITE THE FACT THAT THE EMPLOYER
 HAD NO REASON TO BELIEVE THAT THE EMPLOYEE WAS UNTRUSTWORTHY, AND THAT
 THE EMPLOYEE PERFORMED "ADMIRABLE" WORK.  105 LRRM AT 1175-1176.  THE
 BOARD FOUND THAT THE REASON GIVEN BY THE EMPLOYER FOR THE DISCHARGE WAS
 PRETEXTUAL, AND THAT THE REAL REASON WAS THE EMPLOYEE'S LABOR-ORGANIZING
 EFFORTS, SOME OF WHICH TOOK PLACE SHORTLY BEFORE THE DISCHARGE, AND THE
 EMPLOYER'S UNION ANIMUS.
 
                 THE ALLEGED SECTION 7116(B)(1) VIOLATION
 
    THE GENERAL COUNSEL ARGUES THAT SECTION 7116(B)(1) WAS VIOLATED BY
 RESPONDENTS' DENIAL OF PERMISSION FOR MR. COSDEN TO USE HIS OWN
 ATTORNEY, IN THAT THEY HAD A FUNDAMENTAL CONFLICT OF INTEREST, AND COULD
 NOT MEET THEIR DUTY OF FAIR REPRESENTATION TO HIM.  SEE TR 348-361. THE
 GENERAL COUNSEL CONCEDES THAT THE "UNION HAS THE RIGHT TO MAKE A
 DETERMINATION THAT THEY WILL NOT REPRESENT AN EMPLOYEE IF HIS GRIEVANCE
 HAS NO MERIT," BUT POINTS OUT, THAT HERE RESPONDENTS "ARE SAYING THAT
 THEY WERE WILLING TO REPRESENT HIM EVEN THOUGH THEY HAD ALREADY TAKEN A
 POSITION ON THAT." (TR 357) THE GENERAL COUNSEL ALSO POINTS OUT THAT
 THERE IS A CONTRACT PROVISION ALLOWING RESPONDENTS TO APPROVE
 REPRESENTATION BY A PRIVATE ATTORNEY.  THE GENERAL COUNSEL IS "NOT
 TAKING THE POSITION THAT THE UNION WOULD HAVE TO ALLOW AN EMPLOYEE TO
 HAVE HIS PRIVATE ATTORNEY IN THE GRIEVANCE PROCEDURE WHENEVER HE WANTED
 IT (, BUT) JUST UNDER THESE PARTICULAR SET OF CIRCUMSTANCES . . . WE
 FEEL THAT IN SPITE OF THE CONTRACT PROVISION (REQUIRING APPROVAL BY THE
 COUNCIL FOR AN OUTSIDE REPRESENTATIVE CHOSEN BY AN EMPLOYEE) THAT IN
 ORDER FOR THE UNION TO MEET ITS DUTY OF FAIR REPRESENTATION, THAT'S WHAT
 THEY WOULD HAVE TO DO." (TR 361)
 
    RESPONDENTS URGE REJECTION OF THIS "'CONFLICT OF INTEREST' THEORY"
 AND ARGUE THAT IT HAS "THREE FATAL FLAWS." (RBR 25-26) ONE IS THAT "IT
 IS COMPLETELY CONTRARY TO NATIONAL LABOR POLICY, WHICH ACCORDS A
 CERTIFIED REPRESENTATIVE THE EXCLUSIVE RIGHT TO DEAL WITH THE EMPLOYER
 ON BEHALF OF BARGAINING UNIT EMPLOYEES." ANOTHER IS THAT "SECTION
 7114(A)(5) OF THE STATUTE EXPLICITLY RECOGNIZES THE EXCLUSION OF PRIVATE
 ATTORNEYS FROM THE NEGOTIATED GRIEVANCE PROCEDURE." (RBR 26) AND ANOTHER
 IS THAT THERE IS NOTHING IN THE COLLECTIVE BARGAINING AGREEMENT BETWEEN
 THE COUNCIL AND THE SHIPYARD WHICH REQUIRES THE COUNCIL TO ALLOW THE
 EMPLOYEE TO HAVE A PRIVATE ATTORNEY REPRESENT HIM DURING THE GRIEVANCE
 PROCEDURE.  (RBR 26)
 
    RESPONDENTS ARE CORRECT IN ARGUING THAT NATIONAL LABOR POLICY ACCORDS
 A CERTIFIED REPRESENTATIVE THE EXCLUSIVE RIGHT TO DEAL WITH MANAGEMENT
 ON BEHALF OF UNIT EMPLOYEES.  THE CONCEPT EXTENDS BACK TO THE RAILWAY
 LABOR ACT AND THE NATIONAL LABOR RELATIONS ACT.  SEE, E.G., REPUBLIC
 STEEL CORP. V. MADDOX, 379 U.S. 650(1965) AND EMPORIUM CAPWELL CO. V.
 WESTERN ADDITION COMMUNITY ORGANIZATION, 420 U.S. 50, 61-70(1975).
 
    RESPONDENTS ARE ALSO CORRECT IN ARGUING THAT THE STATUTE ITSELF
 EXPLICITLY RECOGNIZES THAT AN EMPLOYEE IS NOT ENTITLED TO REPRESENTATION
 BY A PRIVATE ATTORNEY, WHEN THERE IS A NEGOTIATED GRIEVANCE PROCEDURE.
 SECTION 7114(A)(5) OF THE STATUTE, DEALING WITH REPRESENTATION RIGHTS
 AND DUTIES OF LABOR ORGANIZATIONS, STATES THAT:
 
    THE RIGHTS OF AN EXCLUSIVE REPRESENTATIVE UNDER THE PROVISIONS OF
 THIS SUBSECTION SHALL NOT
 
    BE CONSTRUED TO PRECLUDE AN EMPLOYEE FROM--
 
    (A) BEING REPRESENTED BY A ATTORNEY OR OTHER REPRESENTATIVE, OTHER
 THAN THE EXCLUSIVE
 
    REPRESENTATIVE, OF THE EMPLOYEE'S OWN CHOOSING IN ANY GRIEVANCE OR
 APPEAL ACTION;  OR
 
    (B) EXERCISING GRIEVANCE OR APPELLATE RIGHTS ESTABLISHED BY LAW,
 RULE, OR REGULATION;
 
    EXCEPT IN THE CASE OF GRIEVANCE OR APPEAL PROCEDURES NEGOTIATED UNDER
 THIS CHAPTER.
 
    SECTION 7121 OF THE STATUTE, DEALING WITH GRIEVANCE PROCEDURES,
 STATES THAT "ANY COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE
 PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES" AND THAT "(A)NY NEGOTIATED
 GRIEVANCE PROCEDURE . . . SHALL . . . ASSURE AN EXCLUSIVE REPRESENTATIVE
 THE RIGHT, IN ITS OWN BEHALF OR ON BEHALF OF ANY EMPLOYEE IN THE UNIT
 REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO PRESENT AND PROCESS
 GRIEVANCES . . . (AND) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A
 GRIEVANCE ON THE EMPLOYEE'S OWN BEHALF . . . " SECTION 7121(B)(2) AND
 (3)(A) AND (B).
 
    THE RIGHT OF UNIONS TO CONTROL THE GRIEVANCE PROCEDURE IS AN
 IMPORTANT ONE.  A PRIVATE ATTORNEY ACTS ONLY IN INTEREST OF HIS CLIENT,
 AND MAY NEGOTIATE A SETTLEMENT THAT IS CONTRARY TO THE INTEREST OF OTHER
 BARGAINING-UNIT EMPLOYEES.  IF INDIVIDUAL EMPLOYEES WERE ALLOWED TO CUT
 THEIR OWN DEALS, IT WOULD DILUTE AND DIMINISH THE RIGHT OF UNIONS TO ACT
 AS EXCLUSIVE BARGAINING AGENTS, FOR EMPLOYERS WOULD UNDOUBTEDLY PREFER
 TO PLAY ONE EMPLOYEE AGAINST ANOTHER, OR BUY THEM OFF, ONE BY ONE.
 
    READING INTO THESE STATUTORY PROVISIONS AN EXCEPTION FOR THE
 "CONFLICT-OF-INTEREST" SITUATION HERE INVOLVED IS NEITHER APPROPRIATE
 NOR NECESSARY TO THE PROTECTION OF A EMPLOYEE'S RIGHT TO FAIR
 REPRESENTATION.  WHERE A CONFLICT EXISTS, AN EMPLOYEE HAS THE RIGHT TO
 PRESENT THE GRIEVANCE DIRECTLY TO MANAGEMENT, UNDER SECTION
 7121(B)(3)(B) OF THE STATUTE.  IF THE EMPLOYEE ELECTS INSTEAD TO USE THE
 REPRESENTATIVE FURNISHED BY THE UNION, AND THAT REPRESENTATIVE FAILS TO
 GIVE THE EMPLOYEE FAIR REPRESENTATION, AS MR. COSDEN FEARED WOULD BE THE
 CASE HERE, BECAUSE OF THIS KNOWN UNION ANIMUS, THE STATUTE PROVIDES A
 REMEDY IN SECTIONS 7116(B)(1) AND (8), DEALING WITH UNFAIR LABOR
 PRACTICES BY LABOR ORGANIZATIONS.  SECTION 7116(B)(1) MAKES IT AN UNFAIR
 LABOR PRACTICE "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN
 THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER" AND ONE
 SUCH RIGHT IS "THE RIGHT TO . . . JOIN ANY LABOR ORGANIZATION, OR TO
 REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
 REPRISAL." SEE SECTION 7102.  SECTION 7116(B)(8) MAKES IT AN UNFAIR
 LABOR PRACTICE FOR A LABOR ORGANIZATION "TO OTHERWISE FAIL OR REFUSE TO
 COMPLY WITH ANY PROVISION OF THE CHAPTER." ONE SUCH PROVISION IS THAT
 THE LABOR ORGANIZATION ACCORDED EXCLUSIVE BARGAINING RIGHTS IS
 RESPONSIBLE FOR REPRESENTS WITHOUT REGARD TO LABOR ORGANIZATION
 MEMBERSHIP." SEE SECTION 7114(A)(1).  IT WAS PROBABLY IN RECOGNITION OF
 THIS DUTY OF FAIR REPRESENTATION THAT RESPONDENTS DETERMINED TO ASSIGN
 MR. COSDEN'S DEFENSE TO ONE OF THEIR MOST EXPERIENCED AND CAPABLE
 SPOKESMEN.  MR. COSDEN'S SUSPICIONS AND RELUCTANCE TO PURSUE HIS REQUEST
 FOR UNION REPRESENTATION, WHILE UNDERSTANDABLE FROM HIS VIEWPOINT,
 CANNOT BE TURNED AGAINST RESPONDENTS.  THEY DID NOT KNOW THAT SHIPYARD
 PERSONNEL HAD SHOWED THEIR LETTERS, WRITTEN ON BEHALF OF MR. KESSLER, TO
 MR. COSDEN.  MR. COSDEN HAD SOUGHT OUT ASSISTANCE FROM UNION MEMBERS
 TWICE BEFORE AND, FROM THE RESPONDENTS' VIEWPOINT, COULD BE EXPECTED TO
 SEEK IT AGAIN.  FURTHERMORE, MR. COSDEN WAS HIMSELF TOLD OF RESPONDENTS'
 WILLINGNESS TO REPRESENT HIM, AT THE JULY 9 HEARING. MR. COSDEN DECLINED
 THE OFFER AND DID NOT HIMSELF PURSUE THE GRIEVANCE, AS HE HAD THE RIGHT
 TO DO, AND WAS TOLD THAT HE HAD THE RIGHT TO CO.  RESPONDENTS SHOULD NOT
 BE FAULTED FOR MR. COSDEN'S CONSCIOUS DECISIONS IN THIS REGARD.  THEY
 SHOWED THEIR WILLINGNESS TO REPRESENT HIM WITH A SKILLED SPOKESMAN;  AND
 THERE WAS A STATUTORY REMEDY AVAILABLE, IN CASE THE REPRESENTATION
 TURNED OUT TO BE UNFAIR.
 
    NOR DOES AN UNFAIR LABOR PRACTICE ARISE FROM THE FACT THAT THE
 COUNCIL DID NOT ELECT TO APPROVE THE LAWYER CHOSEN BY MR. COSDEN, AS IT
 HAD THE RIGHT TO DO, UNDER THE COLLECTIVE BARGAINING AGREEMENT, SEE
 FINDING A5.  THE COUNCIL'S ACTION WAS CONSONANT WITH ITS PAST PRACTICE,
 TO KEEP PRIVATE ATTORNEYS OUT OF ITS EXCLUSIVE PRESERVE.  SEE FINDINGS
 A6 AND 7, SUPRA. THERE IS NO CREDIBLE EVIDENCE TO INDICATE THAT THIS
 PAST PRACTICE WAS FOLLOWED HERE BECAUSE OF MR. COSDEN'S UNION ANIMUS.
 
    MR. COSDEN'S BELIEF THAT THE RESPONDENTS HAD TWICE REFUSED TO OFFER
 HIM REPRESENTATION IS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE.
 MR. BURRY AND MR.  BENDIG DID ASSIST HIM, AND APPARENTLY TO HIS
 SATISFACTION.  MR. BURRY WAS NOT ALLOWED BY THE COUNCIL TO REPRESENT MR.
 COSDEN, IN THE GRIEVANCE PROCEEDING, BECAUSE OF ITS CONCERN OVER HIS
 INEXPERIENCE IN HANDLING GRIEVANCES.  HOWEVER, MR. BURRY WAS TOLD TO
 INFORM MR. COSDEN THAT HE WOULD BE OFFERED PROPER REPRESENTATION, IF MR.
 COSDEN CAME BACK TO HIM.  MR. COSDEN NEVER WENT BACK TO MR. BURRY.  SEE
 FINDING B7, SUPRA.  AS FOR MR. BENDIG, IT WAS NOT DEMONSTRATED BY
 CREDIBLE EVIDENCE THAT THE COUNCIL KNEW THAT MR. BENDIG'S REQUEST TO
 ATTEND THE MARCH 6 INVESTIGATORY CONFERENCE WAS A REQUEST TO REPRESENT
 MR. COSDEN.  SEE FINDINGS B14 AND 8, SUPRA.  MR. COSDEN WAS ADVISED,
 REPEATEDLY, TO GO TO THE COUNCIL FOR REPRESENTATION.  SEE FINDINGS B22,
 25 AND 26, SUPRA.  AND, AT THE JULY 9 HEARING, MR. REIL, THE PRESIDENT
 OF THE COUNCIL, OFFERED MR. COSDEN THE SERVICES OF MR. CARSON.  SEE
 FINDING B28.  THIS RECORD SIMPLY WILL NOT SUPPORT A CONCLUSION THAT THE
 COUNCIL UNFAIRLY WITHHELD REPRESENTATION FROM MR. COSDEN, ALTHOUGH
 VARIOUS HEARSAY STATEMENTS MADE TO MR. COSDEN MAY HAVE LED HIM TO
 SUSPECT THAT IT HAD.  FINALLY, THE FACT THAT RESPONDENTS DID NOT OBJECT
 TO THE APPEARANCE OF THE PRIVATE ATTORNEY AT THE MARCH 6 INVESTIGATORY
 CONFERENCE DOES NOT CONSTITUTE A WAIVER OF ITS RIGHT TO OBJECT LATER.
 THE GRIEVANCE PROCEDURES OF THE COLLECTIVE BARGAINING AGREEMENT DO NOT
 REQUIRE THE COUNCIL'S APPOINTMENT OR APPROVAL OF A REPRESENTATIVE AT
 SUCH A CONFERENCE, ALTHOUGH IT COULD HAVE OBJECTED TO THE PRIVATE
 ATTORNEY'S PRESENCE AS NOT BEING ONE OF THOSE DESIGNATED AS BEING "THE
 ONLY PEOPLE (TO BE) PRESENT." SEE R 2.43-44.46.
 
    IT HAVING BEEN CONCLUDED THAT A PREPONDERANCE OF THE EVIDENCE DOES
 NOT SUPPORT THE ALLEGATIONS THAT RESPONDENTS VIOLATED SECTION 7116(B)(1)
 AND (2) OF THE STATUTE, THE ISSUANCE OF THE FOLLOWING ORDER IS
 RECOMMENDED, PURSUANT TO 5 CFR 2423.29(C).
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 23-CO-21 BE, AND
 HEREBY IS, DISMISSED.
                         ISABELLE R. CAPPELLO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 19, 1981
    WASHINGTON, DC
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7116(B)(1) MAKES IT AN UNFAIR LABOR PRACTICE FOR A LABOR
 ORGANIZATION "TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE OF ANY RIGHT UNDER THIS CHAPTER."
 
    SECTION 7116(B)(2) MAKES IT AN UNFAIR LABOR PRACTICE FOR A LABOR
 ORGANIZATION "TO CAUSE OR ATTEMPT TO CAUSE AN AGENCY TO DISCRIMINATE
 AGAINST ANY EMPLOYEE IN THE EXERCISE BY ANY EMPLOYEE OF ANY RIGHT UNDER
 THIS CHAPTER.
 
    SECTION 7102 ESTABLISHES THE RIGHT OF EMPLOYEES TO "JOIN . . . AND
 LABOR ORGANIZATION, OR TO REFRAIN FROM ANY SUCH ACTIVITY FREELY AND
 
    /2/ CITATIONS HEREIN WILL BE ABBREVIATED, AS FOLLOWS:  "R" REFERS TO
 RESPONDENTS' EXHIBITS;  "GC" REFERS TO THE GENERAL COUNSEL'S EXHIBITS;
 "TR" REFERS TO THE TRANSCRIPT;  AND "RBR" REFERS TO RESPONDENTS' BRIEF.
 MULTIPLE PAGE EXHIBITS WILL BE REFERENCED BY FIRST THE EXHIBIT NUMBER,
 AND THEN THE PAGE NUMBER.  ALL DATES MENTIONED ARE IN 1979, UNLESS
 OTHERWISE INDICATED.
 
    /3/ THE TRANSCRIPT, AT PAGE 254, MISTAKENLY