12:0363(79)CA - Norfolk Naval Shipyard and Tidewater Virginia Federal Employees MTC -- 1983 FLRAdec CA



[ v12 p363 ]
12:0363(79)CA
The decision of the Authority follows:


 12 FLRA No. 79
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL
 Charging Party
 
                                            Case No. 3-CA-1745
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed.  Thereafter, the General Counsel filed
 exceptions to the Judge's Decision.
 
    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 in this case, the Authority
 hereby adopts the Judge's findings, conclusions, and recommendations.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-1745 be, and
 it hereby is, dismissed.  
 
 Issued, Washington, D.C., July 29, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 3-CA-1745
 
    Patricia M. Eanet, Esq.
    Susan Shinkman, Esq.
                          For the General Counsel
 
    Dennis K. Reischl
    Marilyn L. Spence
                          For the Respondent
 
    Ronald E. Ault
                          For the Charging Party
 
    Before:  JOHN H. FENTON
                          Chief Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq.
 
    On February 19, 1981, the Regional Director of Region III, issued a
 Complaint and Notice of Hearing, alleging that Respondent violated
 Section 7116(a)(1) and (5) of the Statute by issuing a memorandum on
 November 28, 1980 in which it stated that Union representatives would be
 included on inspection teams which would inspect employee lockers, tool
 boxes and gang tool boxes without prior notice to the Union and by
 thereafter refusing the Union's request that it negotiate the impact and
 implementation of such memorandum.  Respondent admitted issuing the
 memorandum, but denied that it failed to give the Union prior notice and
 that it failed to respond to the negotiation request.
 
    The matter was heard on April 20, 1981 in Norfolk, Virginia.  All
 parties were afforded full opportunity to examine witnesses, introduce
 evidence, argue orally and file briefs.  On the basis of the entire
 record, including my observation of the witnesses and their demeanor, I
 make the following findings of fact, conclusions of law and
 recommendation:
 
                             Findings of Fact
 
    1.  On October 22, 1979, Captain J. F. Yurso, then Production Officer
 of Norfolk Naval Shipyard, issued Production Instruction 10290.2, which
 was designed to maintain an effective tool control program and to ensure
 accountability and maximum utilization of all tools used by the various
 craftsmen employed at the base.  That instruction states (at page 17, of
 Respondent's Exhibit 1) that all tool boxes will be inspected annually
 by tool coordinators or other designated authorities.  Such wholesale
 inspection had not occurred for many years, if ever, although
 inspections of particular boxes had occurred where there was reason to
 suspect the presence of drugs, alcohol, or other contraband.
 
    2.  On or About September 23, 1980, Metal Trades Council Chairman
 Ronald Ault was informed by Chief Steward Jesse Byrum of Shop 56, that
 the Production Superintendent of that Shop had issued a memorandum to
 his supervisors.  That memo expressed concern about the loss of safety
 glasses, required supervisors to counsel employees who lost two or more
 pairs of glasses, and warned them that if losses continued,
 "administrative action will be taken." It further addressed the problem
 of lost tools and the fact that such losses were incurred repeatedly by
 the same personnel, and directed the Tool Coordinator to monitor the
 problem and "identify those personnel so some action can be taken." The
 memo also noted that each employee was required to furnish certain
 tools, that in too many cases such tools were being checked out of the
 tool room, and that each supervisor was to inform his subordinates of
 the contents of the memo by the end of the month.
 
    3.  On September 26, 1980, Ault sent a memo to the Employee Relations
 Division stating that Production Instruction 10290.2 had not been
 negotiated with the Metal Trades Council and requesting negotiations on
 its impact.  On October 15, the Division Head responded, indicating a
 willingness to meet at Ault's convenience to identify the specific areas
 of impact to which he referred.  On October 22, Ault met with Mr.
 Pittman and Ms. Spence.  They inquired about his purpose, and Ault said
 it was his concern about the reference in the memo of September 23, to
 possible disciplinary action.  According to Ault, Pittman then said that
 the Production Instructions were not routed through the Union because
 they contained no negotiable provisions.  When Ault responded that they
 had definite impact, Pittman told him disciplinary action would not be
 taken.  /1/ Ault did not ask for a copy of the Production Instructions,
 which had never been provided to the Union.  What Ault viewed as
 inequities in the cost of tools to the different craftsmen was also
 discussed, and he left the meeting with the feeling that his problems
 had been addressed and resolved.
 
    4.  In early November 1980, the Naval Sea Systems Command sent an
 inspection team to check the tool inventory against what was actually in
 the tool room and found 60% of the inventory missing.  This was brought
 to the attention of Captain J. R. Bond, the Production Officer.
 
    5.  In mid-November, an inspector went to Shop 31 and opened the tool
 box of one Mark Johnson, who had been out on disability for sometime, in
 an effort to recover a power tool which he had checked out of the tool
 room.  The search was accomplished in the absence of a steward, a
 departure from the usual routine of having a Union representative
 present on such occasions.  George Hodges, III, Chief Steward of Shop
 31, reported the incident to Ault, including his discussion with Mr.
 Matthews, the Head of Shop 31, who promised that it would not happen in
 the future.  Hodges also told him that Matthews had informed him that a
 broad search was going to occur and that the employees were given a two
 week period within which to return tools with impunity.  /2/ During
 their discussion, according to Ault, they agreed that, if the Union
 participated in inspections, "it would be in the Weingarten type
 situation;  that we would be there as employee representatives to make
 sure that the tools were taken and all were in accordance with the
 applicable provision of any instruction on anything that was on the
 street."
 
    6.  On November 28, Captain Bond issued a memorandum stating that, in
 accordance with Production Instructions 10290.2 (October 22, 1979) and
 4450.1 (July 2, 1979), /3/ all employee lockers, tool boxes and gang
 tool boxes would be subject to inspection between December 8 and
 December 19, 1980.  It provided that all government-owned tools not
 properly checked out would be seized and, most importantly, that
 "(i)nspection teams will be formed to include management and union
 representatives." The latter was provided for because Ault's concerns
 about the Johnson incident had been relayed to Bond by his
 Administrative Officer, Joseph Hunter Brantley, Jr.  After the Johnson
 incident, Ault complained to Brantley about the failure to follow the
 practice of having a steward present during such an inspection.
 Brantley briefed Bond, who agreed that the Union should be represented
 on such occasions, and relayed Respondent's agreement to Ault.  It was
 with this understanding in mind that Bond made explicit reference to
 Union as well as management representatives on inspection teams.
 
    7.  On December 2, Ault wrote Bond requesting negotiations on the
 substance, impact and implementation of the November 28 memo.  Bond
 telephoned him the next day.  Ault asked the Captain what the purpose of
 the memo was, expressing at some point the view that a witch hunt was
 underway.  Bond told him of the tremendous number and value of missing
 tools and of the widespread damage discovered in Shop 31.  Ault then
 requested an assurance that no disciplinary action would be taken as a
 result of the inspection.  Bond replied that it was not his purpose to
 take disciplinary action-- that he was looking for tools.  He cautioned,
 however, that he could not give assurances if the inspectors found
 alcohol, drugs, contraband or other paraphernalia.  Ault then said that
 they had to sit down and negotiate the matter because it had impact upon
 employees.  Bond replied that it was not negotiable, that he had a
 production instruction that was out for a long time, that employees had
 received ample warning and time to turn in tools, and that he had to
 recover government tools.
 
    8.  According to Bond there was no discussion about the propriety of
 including Union representatives on inspection teams.  Ault testified
 that there was, although in a manner that left Bond uncomprehending.
 Both men struck me as entirely credible.  I conclude that Ault had a
 discussion as he described it below, with either Brantley or Bond, or
 perhaps with both.  In either event, I find Respondent was made aware of
 the Union's concern.  However, it should be noted that Ault's testimony
 shows that this concern was subordinated to his concerns about the
 extensive scope of the inspection and possible discipline.  Ault told
 Bond (or Brantley) that:
 
          We couldn't be forced into forming a team;  that we would like
       to be afforded the opportunity to be present, but we were not to
       be ordered, and that if we wanted to participate we would
       participate under the Weingarten representation, not as a member
       of a team.  He asked wasn't it the Union's position they wanted to
       be at tool box inspections.  I tried to explain.  There was a
       problem between his understanding what we were looking for and
       what we were actually looking for.  He could never seem to
       understand the difference.
 
    Ault did not say that Union representatives would not accompany the
 inspectors, nor does he claim that Bond said their participation would
 be required.  At some point in the conversation, according to Ault, he
 said:
 
          Captain, if you will give me assurances no disciplinary action
       will be take place, I got no problem with the search.  That
       removes our role as possibly compromising our position.
 
    On December 4, Bond, in writing, reaffirmed his position that the
 content of the November 28 memo was not negotiable.
 
    9.  According to both Ault and Brantley, they discussed the
 participation of Union representatives in the inspections.  Brantley
 told him that he thought they were in agreement upon the presence of
 Union representatives.  Ault testified that he informed Brantley that
 they were in agreement on Union people being there, but not as a team.
 Ault further testified that he told Brantley that the Union was not
 going to be party to a team search, that "we would like to be there as
 Union representatives, but were not going to physically search any tool
 box." The reaction was the same as that attributed to Bond" " . . . I
 tried to explain to him the fine line between a team member and a Union
 representative, and the point seemed to escape him." Brantley's
 recollection or understanding of the conversation was that Ault
 expressed his concern about the inspection arrangement, whereby a
 steward would be present when contraband was discovered in a tool box
 and would be a witness to the event, and solicited an agreement that
 disciplinary action would not occur.  No such assurances were given.
 /4/ Neither witness indicated that the discussion embraced any explicit
 reference to any requirement that Union members must participate in the
 inspection, or what precisely the steward's role would be, or how such
 role would differ, if at all, from the traditional role which the Union
 wanted preserved and respected.  Ault testified that Brantley told him
 that he thought the Union was making a "terrible mistake," by not
 allowing its representatives to participate in the search.  Taken
 literally, this constitutes a statement that the Union need not
 participate in any way Ault found objectionable.
 
    10.  George Hodges, III, Chief Steward of Shop 31, where the search
 of Johnson's tool box occurred in early November, was informed of the
 upcoming Production-wide tool box search at his regular monthly meeting
 with Shop Head Matthews, on November 26.  Matthews indicated that he
 wished to have a Union representative available for each supervisor.
 Hodges was pleased, and relayed the information to Ault, who informed
 him that "the Union as a whole wasn't condoning the searches and wasn't
 going to be a party to them." Hodges then returned to Matthews and said
 he would have to withdraw his Union representatives from the searches.
 His stewards were in fact ordered to participate in the searches as
 employees, after Hodges told Matthews they would be removed from office
 if left on the teams.  There is no evidence respecting the role these
 men played in the searches and no evidence with respect to what stewards
 not removed from office did.  Nor is there any evidence as to how
 stewards had conducted themselves in earlier, random searches, so as to
 avoid being witnesses.  Lastly, there is no evidence that any steward
 "physically" participated in a search.
 
                        Discussion and Conclusions
 
    While it appears Respondent had no practice of searching all tool
 boxes in its Production Department, it clearly had a policy, expressed
 in Production Instruction 10290.2, that such an inspection shall take
 place annually.  It cannot be said that such policy, 13 months old when
 implemented, had been abandoned through disuse.  Whatever the facts
 about communicating this matter to the Union, MTC Chairman Ault did
 somehow request negotiations on the impact of 10290.2 on September 26,
 1980 as a consequence of what he perceived to be the threatening tone of
 the Shop 56 memo.  The meeting with personnel of the Industrial
 Relations Office resulted in assurances that no disciplinary action
 would be taken on the matters mentioned in the Shop 56 memo, and Ault
 left the meeting feeling his concerns had been addressed and resolved.
 He did not request a copy of 10290.2 and there was no discussion of
 inspections as such.
 
    Further, there was a policy of securing the presence of a steward
 when a so-called "probable cause" search of a tool box was made.  When
 Shop 31 opened the box of Johnson, who was absent on an apparently
 contested disability claim, it led to loud protests from the Union, and
 to eventual assurances, cleared with Bond, that Respondent acknowledged
 the Union's right to be present when such a search occurred.
 
    When told of the Production-wide search which was in the offing, the
 Chief Steward of Shop 31 was pleased with the Shop Head's request that a
 steward be made available for each supervisor assigned to the
 inspection.  When the Chief Steward informed Ault of these developments,
 the latter, who had perhaps already seen the memo of November 28,
 informed him that the Union as a whole did not condone the searches and
 would not be a party to them.
 
    The announcement of the search, as such, did not change, but rather
 conformed to existing policy expressed in Instruction 10290.2.  The
 Union had requested negotiations on the impact of that Instruction, and
 in October was provided an opportunity to identify and discuss its
 concerns.  It did not raise the matter of department-wide inspections.
 Thus the only matter which arguably gave rise to a bargaining obligation
 was the statement, in Bond's memo of November 28, that inspection "teams
 will be formed to include management and union representatives."
 
    I accept the testimony of Bond and Brantley that this inclusion of
 Union representatives on such teams was a direct response to Ault's
 complaints about the departure in Shop 56 from the practice of having a
 steward present when a search occurred.  As Ault testified, both men
 registered surprise when criticized for doing what they thought the
 Union wanted.  There is no evidence, and no suggestion, that Bond wished
 to commission the Union's stewards as agents of management for
 inspection purposes.  Ault's protests to both Bond and Brantley, in his
 own view, provoked no more than confusion with respect to the role
 stewards would play in inspections;  neither man could appreciate the
 fine line to be drawn between a team member and a Union representative.
 There was no discussion of what, in fact, Ault wished his stewards to do
 during such searches, except for his statement that they should not
 physically engage in the search.  Nor is there any explanation of how
 Respondent might have accommodated the Union's desire to be present at
 searches without being witness to wrong-doing.
 
    It is clear that neither management official understood the "fine
 line" pursued by Ault.  I have the same difficulty.  It is to be
 remembered that Ault's testimony is that he sought both an explanation
 of the widespread search (or witch hunt), and assurances that no
 discipline would follow, before he reached the subject of the "team"
 versus the "Weingarten" approach.  In the confusion that followed the
 failure of management to comprehend his point, no statement was made
 that stewards would be required to be present at the searches or to
 actually engage in them.  As noted, Ault attributes to Brantley the
 remark that the Union would make a big mistake if it did not participate
 in the teams.  There is, further, no evidence of the role actually
 played by stewards who did participate in the search, nor of any
 consequences for those who did not do so.  The fact that one of the
 Shops within the Department ordered stewards, in their capacity as
 employees, to be present at inspections is, to me, but further evidence
 of the confusion which attended this issue.
 
    In sum, I conclude that the November 28 memo effected no change in
 conditions of employment.  Ault, shaken by the unprecedented scope of
 the search, and perhaps disturbed by the ambiguous wording about the
 composition of the teams, sought first to discuss the necessity for such
 an inspection.  Finding Bond adamant on the need to recover tools, he
 then shifted to a request that there would be no discipline.  Failing
 again, he then sought to convince management that it was inappropriate
 to order Union representatives to be part of the inspection teams, as
 opposed to simply permitting them to be present in a representational
 capacity.  Confronted with management's defense that it thought it was
 doing what the Union wanted, the discussion descended into fine
 distinctions not understood by management or the undersigned.  Suffice
 it to say that there was confusion, but there is no indication that
 Union representatives were required to serve in some capacity differing
 from their traditional role or required to serve at all.  Nor is there
 any indication that management was unwilling to fully discuss Ault's
 concerns.  The bottom line is that a guarantee against discipline would
 have ended his problem with the inspection.  There was no refusal to
 negotiate a system for the imposition of discipline, but rather a
 rejection of a flat-out request that there should be none, on the ground
 that sufficient warning had already been given to avoid any occasion for
 discipline.
 
    Having concluded that there was no refusal to bargain about the
 inspection, its method and its consequences, and hence no violation of
 Section 7116(a)(1) and (5), I recommend that the Authority issue the
 following:
 
                                   ORDER
 
    IT IS HEREBY ordered that the Complaint herein be, and it hereby is,
 dismissed.
                                       JOHN H. FENTON
                                       Chief Administrative Law Judge
 
 Dated:  July 6, 1982
 
          Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ It is not clear how Ault's concern about the reference to
 "administrative action" in the Shop 56 memo of September 23 led to a
 request to bargain about the impact of Production Instruction 10290.2.
 In any event the discussions focused on the Shop 56 memo and the
 assurances that disciplinary action would not be taken appear to refer
 that memo.  Nevertheless there was discussion of 10290.2's requirement
 that various craftsmen provide certain tools of their trades.  There is
 no indication of discussions concerning discipline in connection with
 10290.2.
 
 
    /2/ Word of the two week period in which to return tools with no
 questions asked was apparently passed down through the Production
 Department.  That d