[ v12 p276 ]
12:0276(63)CO
The decision of the Authority follows:
12 FLRA No. 63
FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO, AND INTERNATIONAL
ASSOCIATION OF BRIDGE, STRUCTURAL
AND ORNAMENTAL IRON WORKERS, LOCAL
745, AFL-CIO, PORTSMOUTH NAVAL
SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE
Respondents
and
ROBERT FALL
Charging Party
Case No. 1-CO-18
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondents had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that they be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the
Respondents had not engaged in certain other unfair labor practices and
recommended dismissal of the complaint with respect to them.
Thereafter, the General Counsel and the Respondents filed exceptions to
the Judge's Decision, and the Respondents also filed an opposition to
the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Federal Employees Metal Trades Council, AFL-CIO,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, and the
International Association of Bridge, Structural and Ornamental Iron
Workers, Local 745, AFL-CIO, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing any bargaining unit
employee of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, in
the exercise of rights assured by the Federal Service Labor-Management
Relations Statute, by making statements from which it might reasonably
be inferred that failure to become a Union member will be a factor in
determining whether arbitration will be invoked by the Union.
(b) In any like or related manner interfering with, restraining, or
coercing bargaining unit employees in the exercise of rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at their respective business offices and in normal meeting
places, including all places where notices to bargaining unit employees
are customarily posted, 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 an appropriate official of the
Federal Employees Metal Trades Council, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, and an appropriate official of the
International Association of Bridge, Structural and Ornamental Iron
Workers, Local 745, AFL-CIO, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, and shall be posted and maintained by them for 60 consecutive
days. Reasonable steps shall be taken to ensure that such Notices are
not altered, defaced, or covered by any other material.
(b) Submit signed copies of the Notice to the Portsmouth Naval
Shipyard, the employer herein, for posting in conspicuous places where
bargaining unit employees are located, where they shall be maintained
for a period of 60 consecutive days from the date of posting.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, 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.
IT IS FURTHER ORDERED that the other allegations of the complaint be,
and they hereby are, dismissed.
Issued, Washington, D.C., July 7, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT interfere with, restrain or coerce any bargaining unit
employee of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, in
the exercise of rights assured by the Federal Service Labor-Management
Relations Statute by making statements from which it might reasonably be
inferred that failure to become a Union member will be a factor in
determining whether arbitration will be invoked by the Union. WE WILL
NOT in any like or related manner interfere with, restrain, or coerce
employees of the Portsmouth Naval Shipyard in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute. Dated: . . . By: (Signature) (Title)
Federal Employees Metal
Trades Council, AFL-CIO, Portsmouth
Naval Shipyard, Portsmouth, New
Hampshire
Dated: . . . By: (Signature) (Title)
International Association
of Bridge, Structural and Ornamental
Iron Workers, Local 745, AFL-CIO,
Portsmouth, New Hampshire
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 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 those
telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CO-18
Robert Matisoff, Esquire
For the Respondents
Richard D. Zaiger, Esquire
Heather Briggs, Esquire
For the General Counsel
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of 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.
The Federal Employees Metal Trades Council, AFL-CIO, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire (Council or Respondent), is the
exclusive bargaining representative of a unit of ungraded employees in
the Portsmouth Naval Shipyard (Shipyard). The Council is composed of a
group of approximately fourteen different Locals including the
International Association of Bridge, Structural and Ornamental Iron
Workers, Local 745, AFL-CIO (Local 745 or Respondent). Through
membership in affiliated Locals bargaining unit employees become members
of the Council (Tr. 103). /1/ Council officers are elected by
representatives of the various affiliated Locals (Tr. 106). Each Local
also has governing officers who are elected by those who hold Local
membership (Tr. 105-106).
Affiliated Locals designate stewards and chief stewards. Those
designated to fulfill steward roles are in turn appointed by the
President of the Council to represent the Council in connection with
Union business pertaining to their Locals, including all grievance and
arbitration matters (Tr. 104).
Robert Fall, the Charging Party, was employed as a rigger at the
Shipyard. He was not a Union member. His duties included diving work,
for which he received an environmental pay differential. Fall received
a ten day suspension from work without pay because of what the Shipyard
perceived as a failure on the part of Fall to carry out assigned
responsibilities as an acting supervisor in charge of diving operations
during a July 27, 1979, diving assignment (G.C. Exh. 5). Fall was
thereafter also suspended from all diving duties. Francis J. Colemen,
also a member of the diving team on July 27th and a member of Local 745,
received a five day suspension from work without pay for his involvement
in a violation of rules and regulations relating to diving safety. Both
Fall and Coleman filed grievances under the negotiated grievance
procedure. Fall contended that he was not the acting diving operations
supervisor on July 27, 1979, and that one George Haywood had been
designated to carry out such supervisory responsibilities on the
mentioned date (G.C. Exh. 6). Both grievances were denied at the first,
second and third levels of the grievance procedure. The Council
thereafter did not invoke arbitration on behalf of Fall, but did invoke
arbitration on behalf of Coleman.
The arbitrator restored Coleman to diving duty on the ground that a
permanent suspension from diving duty constituted excessive punishment
(G.C. Exh. 2). /2/ Both Fall and Coleman were represented by Ronald
Marcotte, a Chief Steward appointed to act for the Council by Council
President John F. O'Brien, following designation of Marcotte by Local
745.
The complaint alleged that the Council and Local 745 violated unfair
labor practice provisions of the Statute by the following conduct:
(a) Section 7116(b)(1). By refusing on or about November 28,
1979, to arbitrate the Fall grievance because of Fall's
nonmembership in Respondent labor organizations.
(b) Section 7116(b)(1). By statements made by Ronald Marcotte
to Robert Fall on or about a date in December 1979, to the effect
that Fall's grievance was not submitted to arbitration because of
Fall's non-membership in Respondent labor organizations.
(c) Section 7116(b)(1) and (8). By failing and/or refusing to
comply with the provisions of Section 7114(a)(1) of the Statute by
failing and/or refusing on or about November 28, 1979, to
arbitrate the Fall grievance because of Fall's non-membership in
Respondent labor organizations.
Counsel representing the Respondents argues that Fall was a
"supervisor" within the meaning of Section 7103(a)(10) of the Statute,
and that as a result the Respondents had no duty to represent Fall in an
arbitration proceeding; and that counsel for the General Counsel failed
to establish proof of violations of the Statute. /3/
The parties were represented by counsel during the hearing, and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. /4/ Post-hearing briefs were
received from counsel representing the General Counsel and counsel
representing the Respondents. These have been duly considered. Based
upon the entire record herein, including my observations of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, /5/ and the briefs, I make the following
findings of fact conclusions and recommendations:
The Nature of Robert Fall's Duties on July 27, 1979
Fall testified at length that Haywood, and not he, had supervisory
responsibility at the diving site; however, this conclusion must be
rejected on the basis of the evidence. Fall acknowledged in a written
statement dated August 9, 1979, that he was in charge of the diving crew
at the time of the incident in question (R. Exh. 3). /6/ An abundance
of other proof establishes that he was in fact in control of diving
operations at the diving site on July 27th.
On September 19, 1978, J. R. Dostie, Superintendent Rigger addressed
a memorandum to Fall advising him that C. A. Kasterke, Rigger Foreman,
was assigned "the responsibility of supervising Diving Operations for
Shop 72." (G.C. Exh. 3). /7/ The memorandum then went on to advise Fall
as follows:
If, at any time, Mr. Kasterke is not available at the diving
worksite, when a diving operation is being conducted, you are
designated as the supervisor in charge of Diving Operations.
Fall acknowledged receipt of the memorandum; admitted that on July
27, 1979, a copy of the memorandum was in his personnel file (Tr. 16);
and acknowledged that his designation as acting diving operations
supervisor in Kasterke's absence was not revoked until after the July
27, 1979 incident (Tr. 37).
Fall's ordinary duties as a rigger included specialized work as an
industrial diver, but involved no supervisory responsibility (G.C. Exh.
10). The duties and authority of the acting diving operations
supervisor were described in general terms in an excerpt from a "Navy
diving manual" (R. Exh. 2, Tr. 40-41). The record established that when
serving as acting diving operations supervisor, Fall performed diving
work along with other divers (Tr. 50, 64-66), and that he was considered
a "working foreman" (Tr. 50). Fall's testimony also established that he
performed such duties even when Kasterke was present (Tr. 50). /8/
Fall's duties as acting diving operations supervisor did not differ a
great deal from his usual non-supervisory duties. The difference in the
two jobs related primarily to a requirement that he obtain or arrange
for other trades needed to assist in diving activity (Tr. 64-65).
It was established that Kasterke was frequently absent when the
diving team was working, and that when Fall was performing duties as
acting diving operations supervisor in Kasterke's absence, Fall's work
was not the same as that ordinarily performed by Kasterke, as Fall had
no authority to perform the more general supervisory work assigned to
Kasterke (Tr. 73). /9/ Fall disclosed that when he was acting as diving
operations supervisor he did not work out of Kasterke's office and that
he did not perform the same functions that Kasterke did (Tr. 77-78).
Fall's testimony established that he did not select who would dive as
divers were assigned in rotation (Tr. 40, 96). He had no authority to
take disciplinary action and no authority usually associated with
supervisory duties (Tr. 40).
Contentions of Charging Party Concerning Supervisory Status on July 27,
1979, and Nature of George Haywood's Duty as Acting Supervisor
Fall contends that on or about July 1, 1979, Kasterke told him that
he (Kasterke) would be going on vacation during the last two weeks of
July 1979, and that he then inquired whether Fall "would like to be the
Diving Supervisor" in his absence" (Tr. 17). At another point, Fall
related that Kasterke, "asked me if I would like to take his place" (Tr.
67). He stated that he agreed to act for Kasterke and take his place
(Tr. 17, 67), but that on the following day Kasterke informed Fall that
George Haywood, "would take his place" because Superintendent Dostie,
Kasterke's superior, had informed Kasterke that Haywood did not have too
much time in as an acting supervisor, and that Haywood would be selected
as acting diving supervisor for this reason (Tr. 17, 18-19, 43, 67).
Fall testified that he complained to Kasterke about Haywood's selection
(Tr. 67, 79, 89); but that Haywood was designated by Dostie to be
Kasterke's replacement (Tr. 44).
Although the record is unclear as to whether or not Fall and Haywood
were both candidates for the position of acting Rigger Foreman, the
evidence in the record clearly indicates that Haywood did in fact serve
as a replacement for Kasterke and that he was acting for him on July 27,
1979. However, the record established that Haywood's responsibilities
as acting supervisor embraced much more than those associated with the
actual supervision of diving operations. Haywood was classified as a
shop planner on July 27, 1979 (Tr. 66). Fall admitted that the duties
he performed as acting supervisor of diving operations were much
narrower than those which Haywood performed as Kasterke's replacement on
July 27th (Tr. 77-78). Haywood signed diver time cards on the day in
question (Tr. 89, 94). Like Kasterke, Haywood was not always present
during actual diving operations as he had supervisory duties to perform
elsewhere at other locations (Tr. 42, 70-71, 74-75). He was not a diver
(Tr. 74), and was not present at the job site to perform supervisory
functions at the time of the incident giving rise to the disciplinary
action involved (Tr. 93-96). /10/ However, diving regulations required
that individuals directly in charge of diving operations be qualified as
divers (R. Exh. 2 at Paragraph 4.6.4). Fall was a qualified diver.
Lastly, on July 27th, Haywood met with the diving crew at about 7:30
a.m. and instructed the crew to go out and complete a radiological
survey (Tr. 72). The crew consisting of Fall, Coleman and three other
divers, was told by Haywood that they would be accompanied by one Adrian
Beaulieu a radiological technician. He also told them where the job was
located and what the crew should do (Tr. 95). These were duties
ordinarily performed by Kasterke as Rigger Foreman.
Circumstances Relating to Disciplinary Action Taken Against Robert Fall
and Francis J. Coleman
As noted Haywood assigned the diving crew to do a radiological survey
at the Shipyard. This involved taking bottom samples of marine life for
study by Beaulieu, the radiological technician (Tr. 19, 95). The diving
crew consisted of Fall, Coleman, Roger Ward, Andy LeFreniere, and Dave
Jetty (Tr. 61-62, 95-96). /11/ Fall testified that he and Ward entered
the water as a team, and that while they were under, Beaulieu, who was
not a diver, and not authorized to dive, suited up and dove without Fall
knowing about it (Tr. 62-64). Fall's testimony on these points
presented serious problems of credibility since the Shipyard's factual
findings at the second stage of the grievance procedure indicate that
Fall said that he dove with LeFreniere rather than Ward, that Dave Jetty
specifically placed Fall aboard the diving barge when Beaulieu was
donning a wet suit to enter the water, and further that there was no
entry in the diving log to indicate that Fall dove on July 27, 1979
(G.C. Exh. 6).
It was established that Beaulieu's dive was in violation of safety
regulations and that it was deemed a danger to life and safety (G.C.
Exh. 5). Beaulieu subsequently experienced injury in the form of an
"ear squeeze" as a result of the dive (G.C. Exh. 4). Fall testified
that he did not find out that Beaulieu had entered the water until the
end of the work day on July 27th, and that he thought that Beaulieu had
just gone swimming (Tr. 69-70). However, on this factual issue Fall's
testimony was vague. He stated that he could not remember who told him
that Beaulieu "went in the water" (Tr. 68).
On the following Thursday, August 2, 1979, Superintendent Dostie
indicated to Fall that he was contemplating disciplinary action. He
referred to the fact that Fall had been designated to serve as diving
operations supervisor in Kasterke's absence as of September 19, 1978.
He informed Fall that Fall was responsible for the Beaulieu injury, and
stated that Fall would never be allowed to dive in the Shipyard again
(Tr. 19-20). A proposed ten day suspension from work without pay was
proposed by Kasterke on September 4, 1979 (G.C. Exh. 4). The Notice
stated:
This is a notice of proposed disciplinary action consisting of
a ten (10) day suspension from work without pay because of failure
to carry out your responsibilities as acting supervisor which
resulted in a violation of safety regulations which endangered the
life and safety of another employee on 27 July 1979. You were
given a one (1) day suspension effective 29 September 1977 because
of damage to Government property on 4 August 1977. This prior
offense was considered in determining the severity of this
penalty. . . . /12/
On September 21, 1979, Fall was suspended from work without pay for a
ten day period by Superintendent Dostie because of a cited failure to
carry out his responsibilities as an acting supervisor in charge of the
diving operation on July 27, 1979, and because of his prior disciplinary
record (G.C. Exh. 5).
Grievance Proceedings Initiated
On or About September 24, 1979, Fall contacted Chief Steward Ronald
Marcotte to file a grievance in connection with the suspension imposed
(Tr. 23), and on or about September 26, 1979, a grievance signed by
Marcotte and Council President John P. O'Brien, was filed on behalf of
Fall (Tr. 24, G.C. Exh. 6). /13/ Fall contended that the ten day
suspension of work without pay was imposed without just cause. The
grievance did not interpose objection to Superintendent Dostie's oral
statement to the effect that Fall would never dive in the Shipyard
again, but did request reassignment to the diving crew (G.C. Exh. 6).
At about the same time a grievance was initiated by the Council on
behalf of Francis J. Coleman to appeal his five day suspension from work
without pay and removal from diving activities for his participation in
events leading up to Beaulieu's injury (Tr. 83). Coleman's grievance,
unlike Fall's, involved only an alleged violation of safety rules (Tr.
150). As the representative of both Fall and Coleman, Marcotte
endeavored to consolidate the grievances at the second level of the
grievance procedure, but the Shipyard would not permit consolidation
because they were deemed to be separate cases (Tr. 151).
Arbitration Invoked On Behalf of Francis J. Coleman
Under provisions of the collective bargaining agreement, the Council
had the right to invoke arbitration following the denial of the Fall and
Coleman grievances. /14/ The costs of arbitration are shared equally by
the Council and the Shipyard. The Council funds arbitration in about
eighty percent of the cases (Tr. 127). Funding for the remainder is
obtained primarily from Locals which reimburse the Council (Tr.
128-129). Regardless of the source of funds used to pay for the
Council's share of arbitration expenses, under the provisions of the
collective bargaining agreement, it is the Council that has the
obligation to pay for one half of the costs of arbitration, and it is
the Council that has ultimate authority to determine whether arbitration
will be invoked on behalf of the Council or an aggrieved party (G.C.
Exh. 11, Article 35).
If the Council determines that it does not wish to fund arbitration,
the Council allows the interested Local Union to assume responsibility
for the funding if it is determined that the case would not adversely
affect a large group of Shipyard employees (Tr. 183). Because of time
limits associated with procedure relating to arbitration it is customary
for interested affiliated Locals to determine, in the first instance,
whether they will financially support arbitration in cases wherein the
Council might later determine that the Council will not provide funding,
but will not interpose objection to the processing of the grievance
through the arbitration stage (Tr. 130-131).
Requests for arbitration received from Locals are processed initially
by affiliated Locals (Tr. 182). Arguments in favor of proceeding to
arbitration are thereafter presented to the Council Grievance Committee
by the Union representative responsible for the case or by the
individual grievant (Tr. 131). The procedure before the Committee
involves a "mock trial" of the arbitration (Tr. 131). The Committee
thereafter makes a funding recommendation to the Council's Executive
Board (Tr. 182), which has authority to determine whether arbitration
will be invoked and the source of funding. Marcotte contacted Council
President O'Brien about the possibility of going to arbitration in
Fall's case after denial at the third step of the grievance procedure
(Tr. 160-161). They discussed Fall's position as acting supervisor of
diving operations, issues concerning whether Fall was a member of the
bargaining unit, and conflicts in the statements of witnesses (Tr.
159-161). There was no discussion of the fact that Fall was not a Union
member (Tr. 161-162). /15/
During Marcotte's representation of Fall through the steps of the
grievance procedure Marcotte had approximately six meetings with Fall
concerning the processing of his grievance (Tr. 26). /16/ Marcotte
urged Fall to join Local 745, but there was no indication that these
statements urging membership were coercive in nature, or in any way tied
to the processing of Fall's grievance (Tr. 27, 57). Fall testified that
after denial of his grievance at the third step he had a meeting with
Marcotte, and that he advised Marcotte that he wanted to proceed to
arbitration. According to Fall, Marcotte told Fall that "it looked very
doubtful for me because I was a non-member," but that he would bring it
up to the Local for a vote (Tr. 28). /17/
At the November 29, 1979 /18/ membership meeting of Local 745, issues
raised by the Fall and Coleman grievances were presented by Marcotte to
the membership of Local 745 (Tr. 154, 163-164, 168-170). Marcotte did
so to determine whether the Local would support an arbitration
proceeding for Fall and Coleman (Tr. 156-157). Marcotte chaired the
meeting as Vice President of the Local (Tr. 158-159). He temporarily
relinquished control of the meeting to make a factual presentation
concerning the grievances and then returned to his position as presiding
officer immediately afterward (Tr. 157). The presentation included
details of each case and reference to the fact that each grievant sought
arbitration. The nature of the disciplinary action imposed in each
case, and the contentions of management with respect to Fall's role as
acting supervisor of diving operations were also mentioned (Tr. 154,
156-157).
Upon return to his position as presiding officer of the meeting, a
Union member in attendance moved that the Local support arbitration of
Coleman's grievance (Tr. 170, G.C. Exh. 9). The membership then voted
in favor of proceeding with the Coleman grievance (Tr. 153, 158). There
was no discussion by the members after the motion was made, nor was
there any subsequent discussion or proposed action concerning the Fall
grievance at the meeting (Tr. 153, 158, 168). The minutes of the
November 29, 1979 meeting reflect action taken by Local 745 membership
on the Coleman grievance, but contain no reference to the Fall grievance
(G.C. Exh. 9). The testimony of the Recording Secretary of the Local
established that minutes of meetings usually reflected only the results
of some dispositive action taken (Tr. 179), and further that the rough
notes made at meetings were not developed into formal versions of the
minutes until just prior to the date on which business meetings were
scheduled (Tr. 178-179). There was no evidence in the record that the
fact of Fall's non-membership was raised at the meeting, and Marcotte
did not disclose to the membership whether or not Fall was a member (Tr.
162). Fall's status was not raised for consideration by those voting at
the meeting (Tr. 168), and there was no showing that the membership had
any way of knowing whether or not Fall was a member of the Local (Tr.
168).
Although the record clearly established that the Fall and Coleman
grievance matters were presented to the membership of Local 745 on
November 29, 1979, Fall recalled that Marcotte told him that he would
raise the issue before the Local during a December meeting (Tr. 31). He
related that just before Christmas in December 1979, Fall asked Marcotte
if the Local had considered his request (Tr. 29). According to Fall,
Marcotte said in response that the Local had voted against taking his
grievance to arbitration (Tr. 29). /19/ Fall testified that in reply to
an inquiry concerning the reason for the refusal, Marcotte said that it
was "because of my non-membership" (Tr. 31).
On December 10, 1979, Marcotte made a presentation of the Fall and
Coleman grievances to the Council's Grievance Committee comprised of
Raymond Thurber, Chairman, and three others associated with three
affiliated Locals (Tr. 183-184). There was discussion of the merits of
each case. The minutes of the Grievance Committee reflect the following
disposition:
After much discussion, it was the committee's recommendation
not to take either case to arbitration, because there appeared to
be several different stories of how this came about. This made it
apparent that someone was lying; which one, we could not
determine. We advised Mr. Marcotte that if he could come up with
some better evidence concerning these grievances we would
reconsider our recommendation. Brother Marcotte was informed that
our recommendation to the MTC would be not to fund these cases on
its merits. However, the Local may take the cases to arbitration
with their own funding. (Tr. 184-185, R. Exh. 5). /20/
At a December 14, 1979, meeting of the Council's Executive Board, the
Board decided to accept the December 10, 1979, recommendation of the
Council's Grievance Committee (Tr. 186, R. Exh. 6). The sequence of
events was corroborated in large measure by Coleman, who stated that
Marcotte told him that the Council voted not to fund Coleman's case
because "it was not a strong enough case" (Tr. 84), and that both cases
were being rejected by the Council (Tr. 94). Coleman related that
Marcotte subsequently told him that at a previous meeting of the Local,
a decision had been made to support Coleman's case (Tr. 84-85).
Marcotte was also alleged to have said that he (Marcotte) did everything
he could do for Fall's case, but that he could not go any further
because a decision had been made not to arbitrate Fall's case (Tr. 85).
Coleman testified that Marcotte explained that the Council would not
appropriate money for arbitration of Fall's case because he was a
non-member (Tr. 85, 87).
Discussion and Conclusions
A threshold issue posed in this case relates to whether or not the
Charging Party was, on July 27, 1979, a "supervisor" within the meaning
of Section 7103(a)(10) of the Statute. A positive finding on this point
would deny Fall coverage as an "employee" under Section 7103(a)(2) of
the Statute, and thus would preclude application of the unfair labor
practice provisions of the Statute.
The term "supervisor" is defined as follows in Section 7103(a)(10):
(10) 'supervisor' means an individual employed by an agency
having authority in the interest of the agency to hire, direct,
assign, promote, reward, transfer, furlough, layoff, recall,
suspend, discipline, or remove employees, to adjust their
grievances, or to effectively recommend such action, if the
exercise of the authority is not merely routine or clerical in
nature but requires the consistent exercise of independent
judgment. . . .
Fall's authority as an acting supervisor in charge of diving
operations was limited in nature. He functioned as a trained diver
along with other divers who were charged with responsibility for the
proper performance of their specialized work. His duties as an acting
supervisor were not those performed by Kasterke, the supervisor for whom
he was acting in part. He did not select those who would dive, had no
authority to discipline employees, and did not otherwise possess
authority of the type described in Section 7103(a)(10). He merely was
charged with providing guidance to the diving crew in Kasterke's
absence, and was responsible within the limited framework involving the
application of Fall's experience as a diver. There was no showing that
Fall exercised, had authority to exercise, or had authority to
effectively recommend, any of the administrative action specified in
Section 7103(a)(10). It is also significant that throughout the
processing of Fall's grievance, neither Respondents nor the Shipyard
placed Fall within the supervisory category described in Section
7103(a)(10). Based on the facts adduced it must be concluded that Fall
was an "employee" within the meaning of Section 7103(a)(2), and that he
was not a "supervisor." Accordingly, the contentions of the Respondents
on this issue must be rejected.
Under the provisions of Section 2423.18 of the Regulations, 5 C.F.R.
2423.18, the General Counsel has the burden of proving the allegations
of the complaint by a preponderance of the evidence. Here the case in
favor of the Charging Party rests almost entirely upon the testimony of
Robert Fall and Francis J. Coleman. A careful evaluation of the record
indicates that Fall and Coleman were not entirely credible witnesses.
/21/
It is determined by their testimony and other elements of the record
did not establish by a preponderance of the evidence, that Respondents
violated Sections 7116(b)(1) on or about November 28, 1979, by refusing
to take the Fall grievance to arbitration, or that such alleged conduct
precipitated violations by Respondents of Sections 7116(b)(1) and (8)
based upon a failure to comply with the provisions of Section 7114(a)(1)
of the Statute. However, despite serious credibility problems posed by
Fall's testimony, it is concluded that uncontradicted elements of Fall's
testimony, supported by other circumstantial evidence, did establish by
a preponderance of the evidence, a violation of Section 7116(b)(1) based
upon statements attributed to Ronald Marcotte during a December 1979
conversation between Fall and Marcotte.
Turning to allegations that the Respondents violated Section
7116(b)(1) on or about November 28, 1979, by refusing to take the Fall
grievance to arbitration, and allegations that such conduct also
precipitated violations by Respondents of Section 7116(b)(1) and (8)
based upon a failure to comply with the provisions of Section 7114(a)(1)
of the Statute, it is noted that Marcotte's representation of Fall
closely patterned the representation provided to Coleman, a Union
member. Marcotte met at intervals with Fall to discuss Fall's
grievance. At the November 29, 1979 meeting of Local 745, Marcotte
temporarily relinquished his position as presiding officer in order to
explain to the members of the Local, details relating to the Shipyard's
denial of both the Fall and Coleman grievances. He outlined the facts
and issues presented in both cases, and advised the membership that both
grievants wished to proceed to arbitration. There was no reference to
Fall's non-Union status, and this element was not raised as an issue.
Marcotte then again assumed control of the meeting as the presiding
officer, at which time the membership, without discussion, adopted
another member's motion to support Coleman's case. The record reflects
no evidence of irregularity in connection with Marcotte's presentation
to the membership, nor is there any credible evidence to support the
contention that the Local 745 membership refused to take affirmative
action to support Fall because Fall was not a member of the Union.
Subsequently, on December 10, 1979, Marcotte endeavored to obtain
Council financial support for the arbitration of both the Fall and
Coleman grievances. The Council adopted a prior Council Grievance
Committee recommendation opposing support for either grievance. Facts
adduced during the hearing indicate that the recommendation of the
Council Grievance Committee and the decision of the Executive Board of
the Council were based on the merits of the two cases, and that Fall's
non-membership status was not a factor in their consideration.
Marcotte's detailed account of the procedure utilized at the November
29th meeting of Local 745, and the detailed account of proceedings
relating to Council action were entirely credible. These accounts were
challenged indirectly by Fall's and Coleman's testimony to the effect
that Marcotte attributed lack of support to Fall's non-Union status.
This testimony did not establish the actual existence of such a motive,
nor the implementation of such a purpose. Moreover, such statements, in
the light of the record developed, amount to mere speculation, and would
not, without more, establish culpability on the part of either
Respondent for refusing to proceed to arbitration because of the reason
alleged.
The evidence adduced indicates regularity in procedure, and an
apparent attempt by Marcotte to exhaust every reasonable prospect of
obtaining Local 745 support for arbitration of Fall's grievance.
Similarly, evidence relating to action taken before the Council
Grievance Committee and Council Executive Board indicates regularity and
the absence of consideration of Fall's non-Union status. Even if
Marcotte made statements impugning action taken, such statements without
more, would not, in the factual situation presented justify any finding
of irregularity in the action taken by the Council. It was the Local
745 membership, the Council Grievance Committee, and the Executive Board
of the Council that were charged with authority to authorize support for
the Fall grievance. There was no proof in the record of any
irregularity on the part of Local 745, the Council Grievance Committee,
or the Executive Board of the Council in connection with consideration
given to the Fall grievance.
Section 7116(b)(1) provides that, it shall be an unfair labor
practice for a labor organization "to interfere with, restrain, or
coerce any employee in the exercise by the employee of any right under
this chapter." Section 7102 of the Statute provides that employees "have
the right to form, join, or assist any labor organization, or to refrain
from any such activity, freely and without fear of penalty or reprisal,
and each employee shall be protected in the exercise of such right."
Key elements of proof relating to the alleged violation of Section
7116(b)(1), based upon statements attributed to Ronald Marcotte, were
supplied by Robert Fall. Although the record disclosed that his
testimony posed serious credibility issues, it is also noted that there
was no contradiction by Respondents, of that facet of Fall's testimony
which pertained to the December 1979 conversation alleged in paragraph
6(b) of the complaint. /22/
Fall testified that Marcotte told him that Local 745 had voted
against taking his case to arbitration, and that Fall's "non-membership"
was the reason for the Local's refusal. Respondents acknowledged that
during the course of Marcotte's representation of Fall, Marcotte
endeavored to persuade Fall to become a member, and it must be concluded
under the circumstances presented that Fall could reasonably have drawn
a coercive inference from Marcotte's statement about Local 745 as it did
clearly suggest a direct relationship between Union membership and the
existence of Union support in the further processing of Fall's grievance
through the arbitration stage. Procedurally, Council action was
scheduled to follow Marcotte's report of unfavorable disposition at the
Local level. Marcotte was still representing Fall in the matter. It
may be inferred that Marcotte's comment was coercive in nature, in that
Fall could have logically concluded that status as a Union member during
further Council consideration, would inure to Fall's benefit in
connection with the processing of his case before the Council.
Marcotte's statement constituted an infringement of Fall's Section 7102
rights, and was violative of Section 7116(b)(1). Since Marcotte was
officially representing both Respondents at the time that he made the
statement, both Respondents must be deemed culpable parties with respect
thereto.
Having found that Respondents violated Section 7116(b)(1) of the
Statute, it is recommended that the Authority issue the following Order:
ORDER
Pursuant to Section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Federal Employees Metal Trades Council, AFL-CIO, Portsmouth
Naval Shipyard, Portsmouth, New Hampshire, and International Association
of Bridge, Structural and Ornamental Iron Workers, Local 745, AFL-CIO,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing any bargaining
unit employee of the Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute by making statements
from which it might reasonably be inferred that failure to become
a Union member will be a factor in determining whether arbitration
will be invoked.
(b) In any like or related manner, interfering with,
restraining or coercing bargaining unit employees in the exercise
of rights assured by the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at their respective business offices and in normal
meeting places, including all places where notices to members are
customarily posted, copies of the attached Notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the President of the Federal Employees Metal Trades Council,
AFL-CIO, and by the President of the International Association of
Bridge, Structural and Ornamental Iron Workers, Local 745,
AFL-CIO, and shall be posted and maintained by them for 60
consecutive days. Reasonable steps shall be taken to insure that
such notices are not altered, defaced, or covered by any other
material.
(b) Submit signed copies of said Notice to the Portsmouth Naval
Shipyard, the employer herein, for posting in conspicuous places
where bargaining unit employees are located, where they shall be
maintained for a period of 60 consecutive days from the date of
posting.
(c) Notify the Regional Director, 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 with this
Order.
LOUIS SCALZO
Administrative Law Judge
Dated: June 23, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain or coerce any bargaining unit
employee of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, in
the exercise of rights assured by the Federal Service Labor-Management
Relations Statute by making statements from which it might reasonably be
inferred that failure to become a Union member will be a factor in
determining whether arbitration will be invoked. WE WILL NOT in any
like or related manner, interfere with, restrain, or coerce employees of
the Portsmouth Naval Shipyard in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute. Dated: . . .
. . .
President, Federal Employees Metal
Trades Council, AFL-CIO, Portsmouth
Naval Shipyard, Portsmouth, New
Hampshire
Dated: . . . . . .
President, International Association
of Bridge, Structural and Ornamental
Iron Workers, Local 745, AFL-CIO,
Portsmouth, New Hampshire
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, Federal Labor Relations Authority, whose
address is: 441 Stuart Street, 9th Floor, Boston, MA 02116, and whose
telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ Hereinafter references to the transcript will be designated "Tr.
. . . ," and references to exhibits will be designated, "G.C. Exh. . . .
," or "R. Exh. . . .."
/2/ The arbitrator's award was upheld by the Authority in Portsmouth
Naval Shipyard, 5 FLRA No. 28 (February 24, 1981).
/3/ Counsel for the Respondents also argues that no basis exists for
finding the Council liable for any violations of the Statute; and
further that the remedy sought by counsel for the General Counsel, that
Respondents be ordered to make the Charging Party whole for all past and
future financial loss suffered during the period of his being precluded
from diving duty by the Shipyard, would be inappropriate in any event.
Due to the disposition recommended it is unnecessary to reach these
issues.
/4/ The record received from Milton Reporting, Inc., did not include
a copy of G.C. Exh. 4, nor copies of R. Exhs. 1 through 6. A note from
Milton Reporting attached to the transcript indicated that the Regional
Attorney retained copies of R. Exhs. 1 through 6 following the hearing.
The record does not reflect such retention; and information thereafter
received from the individual who transcribed the proceedings, and from
the Regional Attorney, specifically contradicted the statement reflected
in the note. During a conference call with counsel of record on May 21,
1981, it was ascertained that Milton Reporting had lost or misplaced
G.C. Exh. 4, and had misdirected R. Exhs. 1 through 6 to the Boston
Regional Office of the Authority. During the telephone conference,
counsel of record stipulating that counsel representing the General
Counsel would supply the missing exhibits for inclusion as part of the
record. See letters dated May 21, 1981, addressed to the Office of
Administrative Law Judges by counsel of record.
In addition to the foregoing, counsel of record agreed during the
hearing that counsel representing the Respondents could, subject to
written objection, submit a position description pertaining to the
duties of C. A. Kasterke, Rigger Foreman. Counsel for the Respondents
submitted a Rigger Foreman position description approved on November 30,
1970, and amended on March 30, 1978. Counsel for the General Counsel
objected on the ground of relevancy, but interposed no objection to the
authenticity of these documents. It is determined that the documents
supplied are admissible, and that they may be added to the record as R.
Exh. 7.
/5/ Under authority provided in Section 2423.19(r) of the
Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in
the hearing transcript:
Page Line Change To
42 12 where were
123 11 showing saying
140 6 represent present
148 18 may made a
/6/ Fall also made this argument during the processing of his
grievance. An attempt by Fall to explain away the contradiction by
saying that he "ran the diving crew even though Kasterke was there" did
not help to resolve the conflict or enhance Fall's credibility (Tr.
50-51).
/7/ Kasterke was Fall's immediate supervisor, and Dostie was located
at the supervisory level above Kasterke (Tr. 43-44).
/8/ Although Coleman endeavored to convey the impression that there
were times when the diving crew operated without any supervision, and
that none was needed on such occasions (Tr. 100-101), the record clearly
indicated the contrary (G.C. Exh. 3, R. Exh. 2 at Paragraph 4.6.2).
Coleman's testimony on this point was not credible and was obviously
designed to aid Fall. It was established that their friendship extended
back to approximately 1966, that they worked together at the Boston
Naval Shipyard before commencing work at the Portsmouth Naval Shipyard,
and that they were the only two divers from the Boston Naval Shipyard
(Tr. 90-92).
Also, in contrast to Fall's testimony concerning his usual duties as
a "working foreman" in charge of the diving team, Fall testified that he
never assumed any supervisory duty without being specifically requested
to do so by Superintendent Dostie (Tr. 38-39, 76).
/9/ Kasterke's position as Rigger Foreman was quite distinguishable
from the work of acting diving operations supervisor performed by Fall.
Kasterke had an office in a separate building, and unlike Fall, Kasterke
had other administrative and supervisory duties to perform (Tr. 74).
/10/ Fall's testimony concerning Haywood's presence at the job site
at the time of the episode giving rise to disciplinary action taken
against Fall and Coleman was to the effect that Fall didn't know whether
Haywood was present (Tr. 42-43, 78). He thereafter stated that Haywood
was not, to his knowledge, present at the site (Tr. 78). G.C. Exh. 6
reflects factual findings made by management at the second step of the
grievance procedure. These indicate that Fall was present at the time
of the incident, and that he thus would have been in a position to know.
/11/ Although not material for purposes of this case there is some
indication in the record that a Lt. Bunce was also a member of the
diving crew (G.C. Exh. 2, at page 4).
/12/ In the Notice, Kasterke also stated: "In my absence you were
acting diving supervisor."
/13/ Although the Council would not have pursued a grievance on
behalf of an individual that the Council identified as a supervisory
employee within the meaning of Section 7103(a)(10) of the Statute, the
Council occasionally took cases to arbitration in situations wherein it
was first necessary to determine this jurisdictional issue (Tr. 115).
In this case the Respondents did not object to the utilization of the
negotiated grievance procedure for Fall on the ground that he was a
supervisor within the meaning of Section 7103(a)(10), and the Shipyard
never interposed the defense that Fall was not a member of the
bargaining unit (Tr. 116-118). However, arguably this issue could have
been raised by the Shipyard as a threshold question in any arbitration
proceeding.
/14/ Aggrieved employees also had the right to select fourth step
consideration of grievances by the Shipyard Commander in lieu of
arbitration (G.C. Exh. 11 at pages 146-147).
/15/ The Council President was not a member of the Council Grievance
Committee, and had no authority of his own to formulate Council
decisions relating to the cases which would proceed to arbitration (Tr.
126-127). President O'Brien's testimony was deemed credible on this
factual issue and other related matters pertaining to the method
utilized by the Council to determine whether arbitration should be
funded; however, testimony offered by President O'Brien to show Council
funding of arbitrations relating to grievances of bargaining unit
employees who were not Union members, was successfully impeached.
/16/ Fall testified that he was aware of his right to retain an
attorney to represent him, but that he decided to proceed with Marcotte
as his representative (Tr. 55). Although he vaguely questioned
Marcotte's capacity to represent him (Tr. 55-56), he determined that
this was not a reason to seek other representation. No issue concerning
negligence on the part of Marcotte is involved.
/17/ The complaint does not reflect reliance upon these alleged
statements of Marcotte as a basis for a Section 7116(b)(1) violation.
/18/ The exact date of the meeting was established by G.C. Exh. 9, a
copy of the minutes prepared after the meeting.
/19/ G.C. Exh. 12, a copy of the minutes of the business meeting held
on December 27, 1979, was introduced into the record to establish that
the Fall grievance matter was not presented to Local 745 for
consideration since these minutes reflect no reference to the Fall
grievance. However, Fall's testimony corroborates other evidence that
Local 745's membership was presented with the issue on November 29,
1979. Also in paragraphs 6(a) and 7(a) of the complaint it is alleged
that Respondents, on or about November 28, 1979, failed or refused to
arbitrate the Fall grievance because of Fall's non-Union status. From
the foregoing, it is clear that the minutes of the December 27, 1979
meeting have no bearing upon factual determinations involved herein.
/20/ As previously noted, prior to Council consideration both cases
were presented to Local 745 in accordance with the practice of
determining whether the Local would agree to fund arbitration if the
Council failed to do so. The Local indicated that it would support the
Coleman case, but took no action to support Fall. Under the
circumstances presented, and the timing of the procedure utilized by the
Local to determine whether it would pay for arbitration, there would
have been no reason to present the facts of the Fall case to Local 745,
a second time.
/21/ Fall's testimony to the effect that he was not the acting diving
operations supervisor on July 27, 1979, was effectively rebutted by his
own testimony, and other documentary evidence. His testimony that
Haywood was the acting diving operations supervisor was misleading and
otherwise discredited. Fall's account of facts relating to Beaulieu's
dive was characterized by elements of evasiveness, and was discredited
in large measure.
Coleman's testimony concerning Haywood's role as the supervisor of
the diving operation was discredited, as were hie statements to the
effect that it was unnecessary to have a supervisor present during
diving activity. Also, Coleman's testimony reflected an apparent bias
in favor of Fall.
/22/ There was an unsuccessful effort to elicit such a contradiction
during the direct examination of Marcotte (Tr. 151-152).