11:0456(80)CA FEMTC VS NAVY, NAVAL SHIPYARD, PORTSMOUTH -- 1983 FLRAdec CA



[ v11 p456 ]
11:0456(80)CA
The decision of the Authority follows:


11 FLRA NO. 80
DEPARTMENT OF THE NAVY,
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE

     Respondent

     and

PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO

     Charging Party

Case Nos. 1-CA-277
          1-CA-281
          1-CA-292

DECISION AND ORDER

The Administrative Law Judge issued the attached Decision in the above-entitled consolidated proceeding, finding that Respondent had not engaged in certain unfair labor practices under sections 7116(a)(1), (2), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) and recommending that the complaints be dismissed. No exceptions were filed by either party in Case Nos. 1-CA-277 and 1-CA-281, but the General Counsel filed exceptions to the Judge's Decision in Case No. 1-CA-292.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of 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 Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. 1

In Case No. 1-CA-292, the Judge dismissed allegations of a violation of section 7116(a)(1), (5) and (8) of the Statute based on Respondent's refusal to proceed to arbitration regarding the grievances of employees William A. Batchelder and Thomas Couture. The Judge concluded that the [ v11 p456 ] subject matter of the grievances was clearly and unmistakably excluded by the parties' negotiated agreement and, in any event, that the Union's failure to expressly request that the arbitrability question be separately submitted to arbitration was fatal to the claim that Respondent was required to proceed to arbitration. The General Counsel filed exceptions.

With regard to the Judge's determination that the subject matter of the grievances was clearly excluded from arbitration by the parties' existing agreement and that the grievances were therefore not arbitrable, the Authority has previously stated in Interpretation and Guidance, 2 FLRA 273, 279 at n. 7, (1979), that "Section 7121 (of the Statute) mandates that each collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability and unless the parties, consistent with law, mutually agree otherwise, such procedures must be read as providing that all questions of arbitrability, not otherwise resolved, shall be submitted to arbitration." It follows that all questions of arbitrability must be submitted to an Arbitrator. Therefore, the Authority finds that the Judge erred by attempting to resolve the question of arbitrability himself.

Further, it is clear that the Charging Party clearly and unequivocally requested that the Respondent proceed to arbitration, in the manner prescribed by the parties' agreement which requires only a written notice by the party desiring arbitration. Thus, the Authority disagrees with the Judge's conclusion that the Union's failure to expressly request that the arbitrability question be separately submitted to arbitration excused Respondent's refusal to proceed to arbitration in the circumstances of this case.

In Department of Labor, Employment Standards Administration/Wage and Hours Division, Washington, D.C., 10 FLRA No. 60 (1982), the Authority noted that "while nothing in the Statute precludes either party from invoking arbitration and proceeding ex parte if necessary, a refusal by the other party to participate in the 'procedure for the settlement of grievances, including questions of arbitrability,' i.e., 'binding arbitration,' conflicts with the requirements of section 7121." Accordingly in the instant case, by refusing to proceed to arbitration, the Authority finds that the Respondent has failed to comply with the requirements of section 7121 of the Statute in violation of section 7116(a)(1) and (8). 2 [ v11 p457 ]

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire shall:

1. Cease and desist from:

(a) Unilaterally refusing or failing to proceed to arbitration regarding grievances filed by the Portsmouth Federal Employees Metal Trades Council, AFL - CIO, the employees' exclusive representative, regarding the failure to grant reimbursement for certain after hour training taken by employees William Batchelder and Thomas R. Couture.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

(c) In any like or related manner failing or refusing to comply with any provision of 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) Upon request, proceed to arbitration regarding the grievances filed by the Portsmouth Federal Employees Metal Trades Council, AFL - CIO, the employees' exclusive representative, regarding the failure to grant reimbursement for certain after hour training taken by employees William Batchelder and Thomas R. Couture.

(b) Post at its Portsmouth, New Hampshire, facility, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commanding Officer, on his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director of Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. [ v11 p458 ]

IT IS FURTHER ORDERED that the complaints in Case Nos. 1-CA-277 and 281, be, and they hereby are, dismissed.

Issued, Washington, D.C., February 25, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p459 ]

         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 proceed to arbitration regarding grievances filed by the Portsmouth Federal Employees Metal Trades Council, AFL - CIO, our employees' exclusive representative, regarding the failure to grant reimbursement for certain after hour training taken by unit employees William Batchelder and Thomas R. Couture.

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 Statute.

WE WILL NOT in any like or related manner fail or refuse to comply with any provision of the Federal Service Labor - Management Relations Statute.

WE WILL, upon request, proceed to arbitration regarding the grievances filed by the Portsmouth Federal Employees Metal Trades Council, AFL - CIO, regarding the failure to grant reimbursement for certain after hour training taken by employees William Batchelder and Thomas R. Couture.

                 _________________________
                    (Agency or Activity)

Dated:______  By:_______________________
                        (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority whose address is: 441 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone number is: (617) 223-0920. [ v11 p460 ]

DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE

     Respondent

     and

PORTSMOUTH FEDERAL EMPLOYEES METAL
TRADES COUNCIL, AFL-CIO

     Charging Party

Case Nos. 1-CA-277
          1-CA-281
          1-CA-292

A. Gene Niro, Esq.
         For the Respondent

Peter F. Dow, Esq.
         For the General Counsel

Before: JOHN H. FENTON
         Chief Administrative Law Judge

DECISION

Statement of the Case

These consolidated cases arose pursuant to the Federal Service Labor - Management Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq., as a result of unfair labor practice complaints filed on May 2 and May 29, 1980 by the Regional Director, Region 1, Federal Labor Relations Authority. Complaint in Case Nos. 1-CA-277 and 281 alleges that Respondent violated Section 7116(a)(1) of the Statute by telling the Union Steward Claude Boucher that stewards were not needed for overtime work on weekends, by threatening to "write him up" if he was seen talking to the men in the shop about union matters, and by informing employees that they were not to talk to a Union steward about grievance, but were to come to their supervisors with any [ v11 p461 ] grievances and that the supervisor would decide whether a grievance was valid. The complaint also alleged that steward Boucher was discriminatorily denied overtime assignments in January and February of 1980, in violation of Section 7116(a)(2) and (1). Complaint in Case No. 1-CA-292 alleges that Respondent violated Section 71116(a)(1), (5) and (8) by refusing, on December 2, 1979 to proceed to arbitration on the grievances of William V. Batchelder and Thomas Couture.

A hearing was held on August 21 and 22, 1980 in Portsmouth, New Hampshire. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law and recommendations:

Findings of Fact

1. The Federal Employees Metal Trades Council (MTC) represents approximately 5,000 employees at Portsmouth Naval Shipyard. All matters relating to Cases No. 1-CA-277 and 281 arose in Shop 71 (Painting), which is under the supervision of Production Superintendent Joseph T. Belmont. Below Belmont is a General Foreman, and below him various Foremen. At material times herein, Robert Danis was Acting General Foreman, Donald Millette was a Painter Foreman, and Edward Crowley was an Acting Foreman. Claude Boucher, a painter and, since June, a Steward on the first shift, was transferred to the second shift as the Steward on December 26, 1979, apparently at MTC's request and in response to the need expressed by second shift employees for more representation. There is confusion as to whether he had been "commissioned" by MTC to replace Chief Steward Liberty who would shortly thereafter be transferred to the first shift for purposes of negotiating a new collective bargaining agreement on official time. Boucher was not, in fact, designated Chief Steward in writing until John O'Brien, MTC President did not so in a letter of January 21 which made the designation effective on January 28. In the meantime there were a number of confrontations between Boucher and his supervisors over his habit of conducting himself as if he were Chief Steward, i.e., absenting himself for entire shifts. Article 7, Section 4 of the contract provides for two Chief Stewards, each having Shipyard - wide representational responsibilities, on the second shift, and Section 9c provides that "normally" only Chief Stewards enjoy the right to engage in representational functions which require visits to the MTC office.

2. Soon after transferring to the evening shift, Boucher had disputes with Shop Superintendent Belmont and with Acting General Foreman Danis about his absences for entire shifts on representational duties. Thus Danis, on returning from several weeks leave, observed Boucher in street clothes and inquired of Foreman Dijon about the lack of painting clothes. Dijon responded that Boucher didn't do any work, but spent his time at the MTC office. Danis then approached Boucher and instructed him [ v11 p462 ] to dress for work. When Boucher, who became quite agitated, protested that he had much work to do at the MTC office, Danis reminded him that the shift already had two Chief Stewards and that only Chief Stewards were permitted by contract to visit the MTC office. Boucher requested that the Chief Steward be called to straighten the matter out. Later Liberty came by and agreed with Danis that the contract prohibited a steward from spending an entire shift at the MTC office. Boucher was required to work that night. At around the same time, Boucher complained to Shop Superintendent Belmont that he was being prohibited from spending eight hours at the MTC office. Belmont told him that the shift had two yard - wide Chief Stewards under the contract, and that as a steward he was without authority either to represent the MTC for a full shift or to be at its office for eight hours. Boucher responded that he would seek clarification of the matter from MTC President John O'Brien. As noted, O'Brien designated him Chief Steward, in writing, effective January 28, 1980.

3. Boucher did not address the matters described above, which were viewed by the prosecutor as an irrelevant "red herring," but I include them because much of what follows arose in the context of dispute over Boucher's conduct as Steward. Boucher does attribute statements to both Belmont and Danis, the latter an alleged violation, which may have occurred during the conversations described above. Thus, he testified that on January 4, Danis told him that Respondent did not need stewards to work overtime on weekends, in response to Boucher's question about why he was not getting overtime assignments. Danis denies such a statement, although he acknowledges such a complaint, which he says was coupled with a statement of intent to grieve about the matter, and he asserts that he invited Boucher "to be his guest" and file, as he had everything to gain and nothing to lose. Painter Daniel McCleod testified that he overheard pieces of a conversation in which, he vaguely remembers, Danis made the statement related to Boucher, although McCleod acknowledges he was unaware of the context in which it was made. Overtime records introduced by the General Counsel begin with January 12. It is difficult to imagine that Boucher had in fact missed much or any expected overtime by January 4. He began working on December 26 for Acting Foreman Edward Crowley, who was substituting for Donald Millette. Crowley held such position until Millette returned on January 21. During that period of less than one month, Boucher asserts that he also inquired of Crowley why he was not receiving his fair share of overtime, and that Crowley responded by asking if Boucher was kidding. Crowley testified that no such inquiry was made. The only overtime record in evidence indicates that Crowley had occasion to assign overtime on January 12 and 19, and that Boucher was not offered it on the former date and declined it on the latter. Crowley backed the record and Boucher denied any offer of overtime prior to March 1, following the filing of the unfair labor practice charge on February 28.

In addition, Boucher testified that Shop Superintendent Belmont told him, just before he went on the second shift, that "there were too many [ v11 p463 ] grievances going, and that they would have to stop, because they cost him "somewhere in the $3,000.00 area," and that he, Boucher, was not negotiating fairly with the foremen. Belmont denies making any such statements. Boucher claims to have filed approximately 100 grievances, mostly over environmental or "dirty" pay, and it is this activity which allegedly motivated management to discriminate against him. Curiously, though Belmont managed the entire paint shop, Boucher believed that first shift supervisor Cunningham gave him his fair share of overtime. Thus, the General Counsel, in effect, argues that the Foremen and Acting General Foreman on the second shift, resented and retaliated against Boucher because of his activism as a Steward, notwithstanding that such role had caused him no problem on the first shift. For whatever it may (or may not) be worth, the actors on this second shift scene are Danis, a founder and former official of the Painter's Local (to whom pro-union sentiments will be attributed below), Millette, a young man who had been both Steward and Vice President of the Painters Local, and Crowley, an Acting Foreman who generally is a member of the unit.

4. January 21, 1980 was the second occasion on which an allegedly violative statement was made - one attributed to Foreman Millette at a safety meeting. At the beginning of the shift on that day, according to Boucher, Millette confronted him and said "I just got out of school, I've been prepped on how to handle union stewards .. from now on I will instruct you what you're going to to." Boucher responded that he needed time - that he had many grievances "that would go by his time limits." Millette replied "grievance or not, ... you will go to work and I'll tell you when you're going to get off, if you move I'll write you up." Boucher asserted that there was no discussion of the amount of time he had used as a Union Steward. On cross-examination he elaborated, saying that Millette further stated that he wanted Boucher on the job and that he, Millette, would tell him if there were grievances, because Boucher had been filing crazy grievances, and that Millette told him that "if you leave to go talk to employees I'll write you up. You are not to leave the job under any conditions...."

Millette has a very different view. He testified that Boucher came to him at the beginning of the shift seeking his signature on a Council Pass authorizing him to go to the MTC office to attend to paperwork. Millette asked him for the names of people he intended to contact, or whose papers he would be working on (the pass requires the name of the person(s) to be contacted) and an argument ensued over whether such information had to be divulged. Millette said that work at the MTC office (or full shifts at the MTC office) was what Chief Stewards were for, and asserted that Boucher became excited and accused Millette of picking on him. Millette refused to sign the pass authorizing Boucher's absence from work, assigned him to a job, and told him that if he was off the job doing steward activities without authorization, Millette would have to take some type of appropriate action. Boucher went to work, and, he says, was monitored by supervisors every five to fifteen minutes. According to [ v11 p464 ] Millette, Boucher did not work on ten occasions in the first nine weeks of his employment on the second shift.

After the dinner break, Millette spoke to all second shift painters (including some not under his supervision) about safety. At the conclusion of his remarks he asked whether there were any questions. One of the men indicated that time was running out on his grievance, and asked how he was to obtain the services of a steward. According to Boucher, Millette told the men to come to him, that he would decide whether the matter presented was a grievance or not and whether the individual could or could not see his steward. At some point in the meeting employees asked Boucher whether they could see him, and he responded that they should not, as Millette would "write up" him and any such employee if he saw them talking. This elicited no response from Millette and was apparently a side-conversation in the bedlam which erupted when Millette answered the prospective grievant. Boucher testified that Acting General Foreman Danis, upon hearing Millette's remark, interrupted to say that Millette was wrong, that the men needed the Union and they should stick with the Union, and that Millette nevertheless repeated his instruction that he "would determine whether (employees) ... had a complaint or not." On cross-examination Boucher was adamant in his insistence that this brief statement of the need for a Union and for supporting it was the only statement Danis made, that he did not elaborate on that theme. Only one witness to this event called by the General Counsel supports this account. Painter Daniel McCleod testified that Millette responded to the employee's question about the procedure for contacting a steward by saying that the "employee will contact me and tell me about it, and if I think it warrants a steward we'll call one. Otherwise if it doesn't, we'll drop it right there, you won't have a steward." At this point Danis said "...Dan I think you're wrong, they are allowed to have Union representation, and we need a Union here in the yard, its a good thing and they have to have it." Millette then reiterated his earlier remarks. Painter Hendrick York testified for the General Counsel that Millette responded to the question by saying "...I'd like the guys coming through me, I don't want everybody running off the boat and running all over the shipyard looking for a steward. I'd just as soon they come to me and I'll see if the thing warrants it, and if it does I'll set up a meeting and they'll see their steward." At this point the meeting blew apart. Millette did not repeat his statement, nor did he say "that's the way its going to be," or words to that effect. Danis stepped in to say that the men needed the Union and should not be without it. Millette did not disagree with what Danis had said. Painter Edward Morin, called by Respondent, testified that Millette responded to the question by telling the men that they had to ask him when they wanted to see the steward because he did not want them roaming around the yard, and that he would get the steward for them. There followed, he said, some general discussion including some reference by Boucher to his unwillingness to represent anyone that night, because he had been denied permission to see someone earlier in that day, when Danis cut in to say that Millette "had been interpreted wrong or he had said [ v11 p465 ] something wrong:" that the men were to go to their foreman if they wished to file a grievance and that the foreman would get the steward for them. Danis then volunteered that whatever the assembled employees might do, they should not be without a Union to represent them.

Foreman Millette testified that he answered the question by saying that an individual desiring union representation with respect to a problem should go to his supervisor, tell the supervisor of the problem and request representation. The supervisor should then come to Millette, as supervisor of the steward, and he would make arrangements for the meeting. He further said that, in the case of his own subordinates, he would determine whether the problem presented was serious enough to get the steward right away and pull the man off the job, or could await the end of the shift (the changeover period) and thus not interfere with production. Millette categorically denied making any statement about deciding the validity of grievances presented to him.

Foreman 3 Danis testified that Millette told the assembled men that he did not want them roaming around the shipyard, and that any employee who wished to see the steward should come to him and he would make the arrangements for meeting the steward. This provoked a considerable reaction among the men, one which Danis thought indicated that they misunderstood Millette and which provoked him to say that Millette meant that the employee should see his immediate supervisor, who would make arrangements which would not conflict with the work. For reasons which remain unclear, Danis was also provoked to speak to the men on the need for a Union, based on his own work experience before the shop was organized. Danis testified that he did not hear Millette state to the employees that he would determine whether a grievance was valid or not, and he did not say that Millette was wrong and proceed to correct him about the procedure for seeking the steward's assistance.

5. The evidence respecting assignment of overtime is anything but clear. General Counsel Exhibit L (which I hereby receive into evidence upon unopposed post-trial motion) lists the men who worked overtime for Millette's crew from January 12 through March 3. In addition, and curiously, it also records Boucher's (and only Boucher's) refusals of overtime opportunities on March 15 and 16. Overtime was assigned on five occasions between January 12 and the service of the unfair labor practice directed to this issue on February 28. (The charge directed at the events occurring at the safety meeting was filed on February 22). It is clear that sometime in early March, General Foreman II Gerhart Simon had issued orders, at least to Acting General Foreman Crowley, that Boucher was to be assigned overtime in what appears to have been a clear response to the charge. Thus the General Counsel argues that the repeated requests that [ v11 p466 ] Boucher work overtime, beginning on March 1 should be ignored in the effort to assess the meaning of the overtime record. Overtime, according to the record, was either worked or declined on several occasions by every painter except Boucher prior to the filing of the charge. While Boucher testified he was never offered overtime during that period, the record indicates that he refused it on January 19. On two other occasions, an indecipherable dash is placed next to his name. The dash also occurs next to other names, sometimes together with other symbols. It apparently indicates that a painter was, in fact asked, but was not selected. I give more weight to this record than I do the confused testimony of those who administered it or of Boucher. As diluted as its meaning is with various unexplained symbols, General Counsel Exhibit L indicates that other painters received a chance to accept or reject overtime opportunities more than three times, on the average, of the five occasions when there was such work in January and February, and that Boucher probably received only one such opportunity. On March 1 and 2, Boucher declined such opportunities. It would seem unlikely that word of the unfair labor practice charge, and the order to include Boucher in overtime assignments, would have come down to first-line management by February 28 and 29, the days on which the March 1 and 2 overtime would have been assigned, although it is possible. Thereafter, on March 15, 16, 22, 23, 29 and 30, and on April 19, 20 and 26, Boucher refused Danis' requests that he work overtime. Boucher testified that he had to decline the overtime offered on March 1 (a March 1 and 2) because he had a conflict, and that the rest of the jobs had to be declined because of a reaction he developed to epoxy paints. Foreman Millette, perhaps understandably, had no explanation for not offering Boucher overtime on the three occasions he made such assignments prior to the filing of the charge, except for one day which he said was hectic, when Boucher was not around.

6. Case No. 1-CA-292 involves an allegation that Respondent refused, on December 21, 1979, to proceed to arbitration on grievances filed by William A. Batchelder and Thomas Couture, and that such refusal violated Section 7116(a)(1), (5) and (8) of the Statute. These men filed identical grievances in November, 1979, asserting that they were denied reimbursement for supervisory training courses taken on their own time while a female employee who took the same training had been reimbursed. The denial was grounded on an alleged lack of relationship of the training to their jobs. They contended that, apart from the woman's occasional substitution for a supervisor (during which they said she did not exercise full supervisory powers), the only difference in the claims was the sex of the claimants.

On December 11, 1979, the Union requested arbitration. Respondent by letter rejected this "request to join in binding arbitration on the merits of the dispute," on the ground that the gravamen of the grievance was alleged sex discrimination, a matter within the purview of the EEO complaints procedure under Part 713 of the Federal Personnel Manual and thus posed on issue expressly excluded from the terms of the negotiated [ v11 p467 ] grievance procedure (Article 34, Section 1.b (14)). Thus, despite the explicit refusal to submit the merits to an arbitrator, the rationale is that the subject matter was outside the scope of the agreement and therefore non-arbitrable. Respondent also argued that enactment of the Statute (Section 7121) did not automatically broaden the scope of existing contractual grievance procedures, but left any such expansion to the bargaining process. 4

Earlier, in July, the Union had requested binding arbitration of an employee's removal, an adverse action which the shipyard contended was appealable under CSC regulations and therefore expressly excluded from the grievance procedure pursuant to Article 34, Section 1.b (16). The Shipyard therefore rejected the request in a final decision by the Commander. The Union then wrote the Commander, arguing that the Statute had broadened the scope of the negotiated grievance procedures to embrace the subject removal, thus, in effect, overriding Section 1.b (16), and requesting that an arbitrator be summoned to decide the matter of arbitrability. 5 This provoked further discussions and the Shipyard ultimately agreed to submit the question of arbitrability, but not the merits of the dispute, to arbitration.

Discussion and Conclusions

I found Steward Boucher the least reliable witness to these events. Except for Painter McCleod, no witness truly supports him. Thus, both Painter York, called by the General Counsel and Painter Morin, called by Respondent, presented very different versions of the remarks made by Millette at the January 21 safety meeting. An array of witnesses contradicted him, even about matters not alleged in the complaint. Thus, I credit Labor Relations Specialist Marcia Pogar who testified he did not, as he claimed, file a grievance about the distribution of overtime, Production Supervisor Joseph Belmont who testified that he never told Boucher that the grievances had to stop, and Acting Painter Foreman Crowley, who testified that he never received a complaint from Boucher about being denied his fair share of overtime, and that he never responded with a (presumably ironic) "are you kidding." [ v11 p468 ]

On the first shift Boucher was a very active Steward who never lacked his fair share of the overtime. If he is to be believed, his transfer to the second shift led him precipitously into confrontation with three supervisors, one acting only and the other two former Union activists, and office holders, who were disposed to discriminate against him because of the vigor with which he pursued his stewardship. This, despite the lack of evidence that these men were anti-union, and the abundant evidence that Acting General Foreman Danis was pro-union and counselled his men on the need for a Union. I am convinced that Boucher's confrontation with his supervisors erupted not because he was a good, aggressive Steward, but because he acted as Chief Steward and, in violation of the collective bargaining agreement, frequently absented himself from work for entire shifts. When foremen Millette and Danis attempted to address this problem, he reacted as though he was the victim of persecution. I am entirely satisfied that he acted as if commissioned to be Chief Steward, and was frequently absent without portfolio, for entire shifts on representational matters, and that he was greatly agitated when Acting General Foreman Danis succeeded in requiring him to go to work and in convincing the Union that he could not usurp the functions of a Chief Steward. I am also convinced that some unit employees were in the habit of ceasing work then they believed they had a grievance to search for a Union representative.

I credit Danis' denial that he told Boucher that his status as Union Steward precluded his assignment to weekend overtime. I found Danis an impressively forthright witness, and, as noted, one who did not hide his pro-union sympathies. While Boucher's version of Danis' statement is corroborated by McCleod, the latter admitted that his recollection of the conversation was vague. I note also that his recollection of the safety meeting, the closest to Boucher's, is at odds with most others, including employees, whose version I credit.

I credit Foreman Millette's account of his conversation before the safety meeting on June 21. Again, it is simply incredible that Millette simply told him he had been trained in how to handle Union Stewards, that Boucher had been filing crazy grievances and that henceforth he would write him up if he left a job Millette had assigned him. On cross- examination Boucher added that Millette said he was not to leave the job under any conditions, thus effectively stripping him of the capacity to serve as a Steward. In fact, Millette, who had returned to the job after an absence which included training, told Boucher, when presented with a pass seeking supervisory authorization to spend eight hours for paperwork in the MTC office, that Chief Stewards were designated for that purpose and that Boucher was going to go to work. An argument ensued about whether a Steward has to supply the names of people he intends to contact for representational purpose (see Appendix 1 of the CBA), and it concluded with Millette's statement that he would take action if he found Boucher off the job. In the circumstances, where Boucher had not yet been designated Chief Steward, Millette was privileged, in fact required, to [ v11 p469 ] deny Boucher's request to spend all day at the MTC office, to insist that he name any employees he might intend to visit on representational matters, and to threaten disciplinary action should Boucher ignore these ground rules.

I further find that Millette did not, immediately following the safety meeting, tell the 25 assembled men that they could not talk to their steward about grievances, but were to take such matters up with their supervisor, who would decide whether the grievance was valid.

The meeting was chaotic, and no two recollections of it are alike. Clearly, those who spoke were not supremely articulate men who measure with precision the import of their words. I find, as Millette and Danis reported, as well as employees Morin and York (a General Counsel witness), that Millette began by instructing the men that they were to bring grievances to the attention of their supervisor, that he did not want them leaving the boat and roaming around the shipyard looking for the steward. 6 I find he further told them that reports should be made to him, or relayed to him by the supervisors of men not working for him, because he supervised Boucher and would know where to locate him. Finally, I am convinced that he told the men, in substance, that he would make a judgment as to the seriousness of the matter complained of, would make arrangements for the steward to meet the employee where that was warranted, and, where he believed such measures unwarranted, he would let the matter await the "change-up" time at the end of the shift, so as to avoid interruption of work. Whatever he precisely said, he did stir up the reaction that he was depriving the men of their representation rights, which led to much loud talk, side conversations and general confusion. Danis then told those objecting employees that they had wrongly understood Millette, that what Millette meant was that an employee should first take a grievance to his immediate supervisor and that he would make arrangements which would not conflict with the work. Danis then, for reasons neither he nor any other witness threw light on, told the employees that they should never be without a Union, describing the favoritism and other unpleasantness of the days before the Union.

In sum, it is not clear to me that Millette made an unambiguous statement to the effect that he would decide whether a complaint warranted arrangements for a prompt meeting between a grieving employee and the steward. He upset some of the men who, as reported by Danis, gave feedback indicating that they felt their rights had been invaded. However, I am entirely satisfied that Millette did not, as only Boucher [ v11 p470 ] and McCleod reported, flatly and merely tell the men that they could not see their steward, but must bring their grievances to him and that he would decide whether they were valid. Even General Counsel witness York reported that Millette said he would "like the guys to come through me, I don't want everybody running off the boat and ... all over the shipyard looking for a steward. I'd just as soon they come to me and I'll see if the thing warrants it, and if it does, why I'll sit up a meeting and they'll see their steward." Thereafter, he said, all hell broke loose. Employee Morin supported Respondent's view. None of the other 20-odd employee witnesses to these events testified. I am wholly convinced that Millette put the problem in the context of avoiding the downtime occasioned by grievants in search of their steward and that he tried to set up a procedure for arranging such meetings with minimum loss of production time. In saying that he would decide whether a grievance was serious enough for a meeting, as opposed to letting matters await the end of the shift, some men clearly understood him to be denying them their right to representation. At this point Danis (also a Foreman, but one who regularly substituted for the absent General Foreman), stepped in to clarify matters and to endorse the need for a Union. If Millette failed to make his purpose clear, choosing words susceptible of a coercive interpretation, I would find that Danis neutralized it. There is no evidence whatever that any foreman deprived any employee of an opportunity to visit with his steward during this shift. Rather it appears that Millette was trying to address a real problem of the men searching for a steward who was rarely at the worksite. I therefore conclude that this allegation is not supported by the weight of the evidence.

The matter of the overtime assignment rests upon a very messy record, as well as vague recollections of how the supervisors picked employees, how they recorded overtime assignments and what their symbols meant. At best, the General Counsel has established that on the five occasions prior to the filing of the charge and the orders from the General Foreman that Boucher be provided overtime opportunities, Boucher had only one such chance, whereas all of the others got it, or the opportunity, most of the time. I credit Crowley's testimony, supported by the record, that Boucher declined an opportunity on January 12. I credit Millette's statement that on one day it was a matter of out-of-sight, out-of-mind. The question, then, is whether the evidence supports a conclusion that the other several instances were a deliberate withholding of overtime or an innocent consequence of a rather haphazard system of assigning overtime. Those who were physically present were generally asked as they were seen, with a preference to be accorded to those involved in the work in question. There was no contract requirement that it be distributed equitably except over the life of the agreement. Having concluded that the alleged threat respecting overtime was never uttered, I conclude that a few weeks of missed overtime opportunities does not prove discrimination in those assignments. Whether Boucher was involved in the work in question when the assignment was made, and whether he was even on the boat at the times in question are matters no one pretends to recall. Nor do I conclude [ v11 p471 ] that management's order that Boucher be included in overtime assignments, made after the charge was filed, indicates it was guilty of anything, as opposed to being anxious to stay out of trouble. Finally, I can draw no inference, though much was made of it, from the fact that a cryptic note appears on General Counsel Exhibit L that a man, presumably Boucher, cannot work epoxy paints. There is no evidence that this was used to offer him such jobs, thus forcing a declination, when other, harmless jobs were available. I do not understand why such a reminder, if such it was, is sinister. Given the manner in which overtime was assigned, the lack of evidence of union animus on the part of the supervisors, and the brevity of the period involved, I conclude that no finding of discriminatory assignment can properly be made on this record.

Turning to Case No. 1-CA-292, the Authority has held that Section 7121 of the Statute altered preexisting collective bargaining agreements so as to require (in the absence of the parties' agreement to some lawful alternative), that all such agreements must be read as providing for submission to arbitration of all questions of arbitrability. 7 The General Counsel therefore argues that Respondent was not privileged to refuse to proceed to arbitration upon the Union's request, and that its rejection was, in fact, a refusal to proceed to arbitration for any purpose rather than being confined to the merits. The General Counsel further argues that Respondent's defense that it would have acceded to an explicit request for submission of the arbitrability question to arbitration, as it once had in the past, is specious because it rejection was total and any such requirements would impose a two-step procedure at odds with the collective bargaining agreement. Thus it is asserted that "Respondent may not unilaterally split the request, ... thus necessitating a second request from the Union."

Respondent does not disagree with the notion that questions of arbitrability are to be submitted to arbitration. It asserts that such is the case, not by operation of law, but because the parties, in practice, have substituted arbitrators for the absent Assistant Secretary, whose jurisdiction over such matters was removed by the Statute. Respondent nevertheless contends that its refusal to proceed to arbitration related exclusively to the merits of the dispute, that such refusal was bottomed on contract language clearly and expressly excluding EEO disputes from the negotiated grievance procedure, that the Union never explicitly requested arbitration of the arbitrability question and that, as to the merits of the dispute, it acted in good faith in rejecting a request which was frivolous in the light of the contract's plain language.

As noted earlier, the Respondent's refusal to submit the grievances to arbitration, while explicitly coupled with a reference to the merits, was, in its justification, based entirely on the ground that the subject [ v11 p472 ] matter was expressly excluded from the grievance machinery and hence from arbitration. It could therefore be read, as the General Counsel contends, as an outright rejection of arbitration. On the other hand, the earlier rejection, in July, of the request to arbitrate the discharge was not limited to the merits, but was a flat refusal to arbitrate based on grounds identical to those here: an express exclusion of the subject matter from the grievance-arbitration process. Nevertheless, when the union after further discussions, pressed for a resolution of the question of arbitrability, Respondent consented. Thus its insistence, here, that it was not required to submit the arbitrability of this dispute to an arbitrator absent an explicit request that it do so.

The Assistant Secretary has held that a refusal to go to arbitration matter was expressly excluded from the grievance machinery and hence from arbitration. It could therefore be read, as the General Counsel contends, as an outright rejection of arbitration. On the other hand, the earlier rejection, in July, of the request to arbitrate the discharge was not limited to the merits, but was a flat refusal to arbitrate based on grounds identical to those here: an express exclusion of the subject matter from the grievance-arbitration process. Nevertheless, when the union after further discussions, pressed for a resolution of the question of arbitrability, Respondent consented. Thus its insistence, here, that it was not required to submit the arbitrability of this dispute to an arbitrator absent an explicit request that it do so.

The Assistant Secretary has held that a refusal to go to arbitration on the merits of a dispute did not constitute a violation of the Executive Order where based on specific, clear and unmistakable contract language excluding the subject matter from the negotiated grievance procedure. 8 Here, it is no less clear that EEO complaints were not grievable and hence were not subject to binding arbitration under the existing contract, and furthermore, the Union had not requested the inclusion of that subject when it sought to reopen the contract and modify it upon passage of the Statute. I therefore conclude that Respondent did not violate the Statute when it refused to proceed to arbitration on the merits of these grievances. The issue remains whether the failure to agree to proceed to arbitration on arbitrability in the circumstances, was a violation. The Assistant Secretary, in construing the Executive Order, has held that a refusal to proceed to arbitration on the question of arbitrability is not an unfair labor practice where based on a good faith belief that the grievance was not cognizable under the contract. 9 An underlying rationale for such disposition of the cases was the existence of a right, under the Order, to submit such questions to the Assistant Secretary. That right is extinguished, and its current counterpart is the right to present such issue to an arbitrator. I would infer from this change that there exists under the statutory scheme much less prospect for refusing to arbitrate arbitrability without violating the law. To hold otherwise would invite parties to determine questions of arbitrability unilaterally, thereby impairing the usefulness of established bilateral grievance-arbitration machinery and forcing such issues into the unfair labor practice forum. This would appear, at least in most instance, to run [ v11 p473 ] counter to the purposes of Section 7121, which clearly stresses the importance of the establishment of contractual procedures for the settlement of grievances, including questions of arbitrability.

Application of that broad principle to this case is not automatic, because here the Union did not respond to Respondent's refusal to proceed to arbitration on the merits, and because the Union never sought to broaden the scope of the grievance procedure to include this kind of controversy. Here the Union presented a long listed of changes it wanted in the scope of the grievance procedure, in apparent response to Section 7121. It specifically proposed that the language excluding EEO matters subject to the FPM regulations be left unchanged. Unless parties are to be forced to the expense of arbitration in every instance as the sole forum for determining whether a matter is even subject to colorable claim that it is arbitrable, accommodation must be made for those cases where a request for arbitration is so clearly lacking in contract support as to be deemed frivolous. I conclude that this is such a case.

Independent of that rationale, I would conclude that the Union's failure to expressly request that the arbitrability question be submitted to an arbitrator is fatal to the claim that Respondent's refusal to go to arbitration on that matter. Thus, I see no real distinction between the earlier discharge case and this one. In each instance Respondent denied a request that a dispute be submitted to arbitration. In the former case, when the Union pressed its argument that the Statue expanded the scope of the contract's grievance/arbitration clause, Respondent relented and agreed to submit the question of arbitrability, but not the merits, to arbitration. In the latter instance, its initial position was just the opposite. It made clear that the merits would not be submitted, and was silent on the arbitrability question. The Union did not pursue the matter further, but filed a charge. In light of such history, slim as it may be, I feel constrained to conclude that Respondent did not refuse to submit the matter of arbitrability to an arbitrator. Rather it was not asked, after it carefully declined to submit the merits to such resolution.

ORDER

Having concluded that Respondent has not violated the Statute, it is recommended that the Complaints in Case Nos. 1-CA-277, 281 and 292 be dismissed.

JOHN H. FENTON
Chief Administrative Law Judge

Dated: May 29, 1981
        Washington, D.C.

[ v11 p474 ]

FOOTNOTES

Footnote 1 Noting particularly the absence of exceptions with respect thereto, the Authority adopts the Judge's conclusion that the complaints in Case Nos. 1-CA-277 and 1-CA-281 should be