25:1002(84)CA - Long Beach Naval Shipyard, Long Beach, CA and Long Beach Naval Station, Long Beach, CA and FEMTC -- 1987 FLRAdec CA
[ v25 p1002 ]
The decision of the Authority follows:
25 FLRA No. 84 LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA, AND LONG BEACH NAVAL STATION, LONG BEACH, CALIFORNIA Respondents and FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Case No. 8-CA-60037 DECISION AND ORDER I. Statement of the Case The Administrative Law Judge issued the attached decision in this case finding that the Respondents had engaged in the unfair labor practices alleged in the complaint and recommending that the Respondents be ordered to cease and desist from those practices and take certain affirmative action. The Respondents filed exceptions to the Judge's recommended remedy without contesting his findings or conclusions. The General Counsel filed a motion to strike portions of the Respondents' brief in support of their exceptions and an opposition to the exceptions. /*/ Upon consideration of the Judge's Decision, the Respondents' exceptions, the General Counsel's opposition, and the entire record, the Authority adopts the Judge's findings and conclusions. We also adopt his recommended order with modifications. II. Background A. Facts The facts are described in depth by the Judge. Briefly, on May 21, 1985, the director of labor relations for the Respondent Shipyard asked Frank Griffin, Sr., acting president of the Charging Party (the Union), to go to the Respondent's sheet metal shop where there was trouble and see what he could do. Griffin went to the shop and was directed to the general foreman's office, which was in "a complete shambles." A crowd had formed and several police officers stood by at the doorway. Employee Dunn, who had caused the disarray, was seated and was being calmed by a supervisor (Cannon) and a medical corpswoman (Dabbs). At Griffin's arrival, Dabbs departed to use an ambulance radio. At this point Dunn again became agitated, and Cannon, Griffin and a police officer (Smith) restrained her. As Cannon, Griffin, and officer Smith were intangled with Dunn, corpswoman Dabbs returned, having received a doctor's instructions to bring Dunn to the medical clinic. There was confusion and tempers flared. Officer Smith stated that Dunn should be placed under arrest. There was disagreement on this among the participants, and comments between Smith and Girffin regarding Griffin's role. Ultimately, Smith did not arrest Dunn, who was instead taken to the clinic with the others following along. At the clinic, Smith issued a criminal citation to Griffin, in connection with Griffin's conduct at the shop, for interfering with a police officer trying to make an arrest. The complaint alleges that by the action of officer Smith in issuing the citation to Griffin, Respondents violated section 7116(a)(1) and (2) of the Statute. B. Judge's Decision Asexplained below, the Judge concluded that the Respondents had violated the Statute as alleged in the complaint. To remedy the violation, he recommended that the Respondents be ordered to cease and desist from this conduct. He also recommended that the Respondents be ordered to rescind the citation. III. Positions of the Parties A. Respondents' contentions While not contesting the Judge's findings of fact or his conclusion that the alleged unfair labor practice was committed, the Respondents except to the Judge's recommended remedy. They contend that the citation issued to Griffin is no longer within their control, but forms a part of a criminal proceeding which is within the exclusive jurisdiction of a U.S. magistrate. They argue that only the U.S. attorney and the magistrate responsible for the criminal proceeding can dispose of the offenses involved in that case and that an Authority order in this unfair labor practice proceeding which requires the Respondents to rescind the citation would interfere with the magistrate's jurisdiction. The Respondents also argue that the Authority should not issue an order which limits their issuance of such citations because this portion of the order would preclude them from conducting their internal security practices as provided under section 7106(a)(1) of the Statute. In this regard, they argue that protected activity is not a shield against the issuance of citations where criminal prosecution is warranted. B. General Counsel's contentions Asserting that this proceeding is within the Authority's jurisdiction, the General Counsel states that the Authority's issuance of an appropriate remedy for the violation found by the Judge is entirely with the Authority's jurisdiction. The General Counsel also asserts that this proceeding is severable from the magistrate's proceeding. In the General Counsel's view, the Authority's remedy for matters which are within the Authority's jurisdiction does not abrogate the magistrate's jurisdiction. According to the General Counsel, the magistrate will decide whether the Authority's disposition in this proceeding should be given weight for the matters within the magistrate's jurisdiction. In the General Counsel's view, the Respondents' internal security practice argument reflects a misunderstanding of the Judge's finding that Griffin had not engaged in conduct which removed his activity from the protections of the Statute. The General Counsel also asserts that the Respondents' right to determine their internal security practices does not extend to practices which deny rights to employees which the Statute was designed to protect. IV. Analysis and Conclusions A. Recommended cease and desist order We reject the Respondents' contentions that we do not have jurisdiction to order the Respondents to cease and desist from issuing a citation in violation of the Statute. In this regard, the General Counsel has shown that a criminal citation was issued to an employee by a law enforcement officer of the Department of Defense, who was acting as an agent for the Respondents, in connection with the employee's activities on behalf of an exclusive representative under the Statute. The Respondents have conceded that they are within the Authority's jurisdiction for the purposes of the complaint. Moreover, the Judge found that the issuance of the citation arose out of the employee's activity on behalf of an exclusive representative (the Charging Party) under the Statute. We agree. The Judge also rejected the Respondents' argument that the employee interfered with the officer so as to forfeit the protections of the Statute. He found that there was no physical contact between the employee and the officer as contended by the Respondents. He also found that while the employee spoke to the officer, the employee merely expressed an opinion in a harmless fashion and that the employee had conducted himself with the officer in a reasonable, nondisruptive manner. On these findings, the Judge concluded that the employee had not forfeited his statutory protections by having engaged in flagrant misconduct as alleged by the Respondents. Specifically, he ruled that the officer's motivation for issuing the citation to the employee was union animus. Based on these findings, which are supported by the record and which we affirm, the Judge concluded that the issuance of the citation constituted a violation of section 7116(a)(1) and (2) of the Statute. We affirm these conclusions and view them to be fully consistent with the Statute which guarantees employees the right, without fear of penalty or reprisal, to engage in activities on behalf of an exclusive representative under the Statute. We emphasize, however, as was indicated by the Judge, that an employee's mere involvement in activities on behalf of an exclusive representative does not immunize the employee from agency discipline. Consistent with the Statute, an employee may be disciplined for activities which are not specifically on behalf of the exclusive representative or which exceed the boundaries of protected activity such as flagrant misconduct. United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985); Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 16 FLRA 703 (1984). The Statute's protections were not intended to insulate employees from the consequences of behavior violating criminal statutes. Upon these determinations, section 7118(a)(7) mandates that we issue an order which requires the Respondents to cease and desist from this conduct. Thus, we conclude that the order is not beyond the Authority's powers and does not conflict with the Respondents' right to determine their internal security practices. See Department of the Treasury, Internal Revenue Service, Jacksonville District, and Department of the Treasury, Internal Revenue Service, Southeast Regional Office of Inspection, 23 FLRA No. 108 (1986) (the right to representation under section 7114(a)(2)(B) in criminal investigations does not conflict with management's legitimate prerogatives or its right to determine its internal security practices), petition for review filed on other matters sub nom., No. 86-1721 (D.C. Cir. Dec. 23, 1986); Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA No. 68 (1986) (there is no indication in the Statute or its legislative history that Congress intended for there to be any exceptions to the prohibitions of section 7116(a)(1) and (2) other than those derived from the Statute itself), petition for review filed sub nom., No. 86-2046 (1st Cir. Nov. 25, 1986). B. Recommended affirmative action Section 7118(a)(7) also authorizes the Authority to take such other action to remedy an unfair labor practice as will carry out the purposes of the Statute. An order which requires the Respondents to rescind the citation, issued in violation of Statute, is necessary to carry out the purposes of the Statute. See, for example, Bureau of Prisons, Federal Correctional Institution (Danbury, Connecticut), 17 FLRA 696 (1985) (written admonishment must be rescinded); Department of the Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984) (reprimand must be rescinded); Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979) (2-day suspension must be rescinded). The Respondents argue that the Authority cannot adopt this portion of the Judge's recommended order because the citation at issue forms a part of a collateral proceeding before a Federal magistrate and that an Authority order which requires the Respondents to rescind the citation would interfere with the powers and jurisdiction of the magistrate. We disagree. We have resolved the allegations of the complaint alleging that the Respondents have violated the Statute. We have not resolved or disposed of criminal matters pending before the magistrate and have not intruded into or interfered with the appropriate disposition of those matters. However, we will take account of the Respondents' assertion, in their jurisdictional arguments, that they cannot rescind the citation because it is no longer within their possession and control. We will require the Respondents to rescind the citation to the extent that it is within their possession and control. We will also require the Respondents to serve a copy of this decision and order on the magistrate and any other authorities who may have control of the citation and require the Respondents to request the magistrate and such other authorities to give appropriate effect to the Authority's decision for the matters within their jurisdiction. V. Order The Authority orders that the Long Beach Naval Shipyard and the Long Beach Naval Station, Long Beach, California, shall: 1. Cease and desist from: (a) Discriminating, retaliating, or taking reprisal against Frank Griffin, Sr., or any other employee by issuing a citation to that employee while or because the employee is engaged in protected activity on behalf of the Federal Employees Metal Trades Council, AFL-CIO, as exclusive representative under the Statute. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by the Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Rescind the citation issued to Frank Griffin, Sr., on May 21, 1985, and expunge all references to the citation from their files or documents to the extent that the citation is within their control. (b) Serve a copy of this decision and order on the magistrate and any other authorities who may have control of the citation and request the magistrate and such other authorities to give appropriate effect to the Authority's decision for the matters within their jurisdiction. (c) Post at their facilities copies of the attached Notice on forms furnished by the Authority. Upon receipt, the forms will be signed by the Commanders of the Naval Station and the Shipyard and be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps will be taken to ensure that these Notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, Region VIII, Federal Labor Relations Authority, within 30 days of this Order and as required by section 2423.30 of the Authority's Rules and Regulations, of the steps which have been taken to comply. Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE PURPOSES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discriminate, retaliate, or take reprisal against Frank Griffin, Sr., or any other employee by issuing a citation to that employee while or because the employee is engaged in protected activity on behalf of the Federal Employees Metal Trades Council, AFL-CIO, an exclusive representative under the Statute. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the Statute. WE WILL rescind the citation issued to Frank Griffin, Sr., on May 21, 1985, and expunge all references to the citation from our files or documents to the extent that the citation is within our control. WE WILL serve a copy of this decision and order on the magistrate and any other authorities who may have control of the citation and request the magistrate and such other authorities to give appropriate effect to the Authority's decision for the matters within their jurisdiction. (Activity) Dated: . . . By: (Signature) (Title) 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 VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 894-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CA-60037 LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA, AND LONG BEACH NAVAL STATION, LONG BEACH, CALIFORNIA Respondents and FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Charging Party Mr. Eric S. Schulstad and Mr. Thomas R. Wilson For the Respondent Deborah S. Wagner, Esquire For the General Counsel Before: ELI NASH, JR. 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. section 7101 et seq. (herein called the Statute). It was instituted by the Regional Director of Region 8 based upon an unfair labor practice charge filed on November 12, 1985 by the Federal Employees Metal Trades Council, AFL-CIO (hereinafter called the Union) against Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach California /1/ (hereinafter called Respondent or Respondents). The Complaint alleged that Respondents violated section 7116(a)(1) and (2) of the Statute by issuing a citation to Frank Griffin, Sr., because he engaged in protected union activity and Respondents have failed and refused, and continue to fail and refuse to rescind the citation. Respondent's Answer denied the commission of any unfair labor practices. A hearing was held before the undersigned in Los Angeles, California at which the parties were represented by counsel and afforded full opportunity to adduce evidence and to call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the parties and have been duly considered. Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact Frank Griffin, Sr. has been employed by Respondent Shipyard as a sheet metal worker in Shop 17 for about 19 years. Griffin for the past nine years, he has been President of the Sheet Metal Workers Union and a Vice-President of the Union. As Vice-President of the Union one of his duties is to assume the role of President when the President, Frank Rodriguez, is not available. On May 21, 1985, while Rodriguez was absent from the Shipyard, Griffin was designated Acting President. Shortly after lunch on that day Gilbert Bond, the Director of Labor Relations at the Shipyard called the Union's office looking for Griffin. When told that Griffin was not in, he left a message for Griffin to go over to Shop 17 because there were problems there and Shelly Dunn was involved. Bond wanted Griffin to go over and see what he could do about the problem. Shortly thereafter, Griffin returned to the Union office, got the message, and immediately left for Shop 17. The Shelly Dunn mentioned above was an employee who at the time was allegedly having more than her share of problems. At the time of this particular incident, Dunn was on detail to the Sheet Metal Shop from the EEO office, where she normally worked as a clerical employee. When Griffin arrived at Shop 17, he spoke with supervisor, Dennis Wyzkowski, and explained why he was there, since this is not Griffim's normal work area. Wyzkowski then directed Griffin to the General Foreman's office where the incident was still going on. When Griffin arrived at the General Foreman's office, the room was a complete shambles. Glass was all over the floor from a broken window; typewriters, office equipment papers and trays were scattered all over the room. Employee Shelly Dunn was sitting in the far corner of the room crying. Bob Cannon, a supervisor from the EEO office, was sitting with Dunn and talking to her. Cannon had known Dunn for sometime and had represented her while he was a union steward. Several police officers were to Griffin's left as he stood in the doorway. Although the officers were in the room, they were not, at that time, close to where Dunn was sitting. Prior to Griffin's arrival, an ambulance had arrived with a medical corpswoman, Jacqueline Dabbs, and ambulance attendants. Dabbs testified that when she entered the office, Dunn was screaming at the top of her lungs and was "obviously not very coherent." However, Dabbs was able to calm her down and talk to her. While she was talking with Dunn, Cannon came in and, shortly thereafter, Griffin arrived. Both Griffin and Cannon, assisted Dabbs in calming Dunn down. Once this was done, Dabbs attempted to contact the Medical Officer at the clinic on her radio, but for some reason she was unable to communicate with him from the room. She then left the room and had an ambulance attendant contact the clinic on the ambulance radio. The attendant informed Dabbs that she was to take the patient Dunn to the clinic. While Dabbs was out of the room attempting to radio the clinic, Griffin and Cannon remained in the room with Dunn. The police officers were still on the opposite side of the room near the door, and a crowd of employees and the foremen were standing around. One of the Foremen tried to get the crowd dispersed by telling them they should go back to work. According to Griffin, the supervisor used the word "circus" which set Dunn off again. She sprung up screamed and began kicking and flailing about. At this point, the account told by Respondent's two witnesses differs substantially from the testimony of the other parties who testified. Cannon, who I credit, testified that he wrapped his arms around Dunn's waist and told Griffin to grab her feet, because she was kicking at things on the desk and he wanted to prevent her from doing any more damage. Cannon grabbed her because he saw the DOD police officers were not making any move to stop Dunn, and he felt somebody had to act. Griffin grabbed her legs as Cannon suggested. Griffin became concerned because Dunn was kicking wildly and he did not want to get kicked with the steel-toed shoes she was wearing as protective equipment, Griffin's attention at this point was focused on trying to hang on to her feet. Both Cannon and Griffin are large men well over six feet tall with each weighing about 270 pounds. Dunn was described a tiny woman who weighs perhaps 105 pounds, so it was clear that she was being contained. /2/ Cannon continued talking to Dunn, trying to calm her down until he got her quiet again. Dunn began telling Cannon that he was hurting her arm and asking him to stop hurting her. Cannon with both arms around her waist realized that he did not have her arm so he turned and saw that Officer Smith was standing to his and Dunn's left, holding Dunn's arm twisted behind her. Cannon asked the officer to let go of her arm and give him a chance to calm her down. According to Cannon, he told the officer he wanted Dunn calm because he didn't want to see them have to manhandle her to restrain her. The officer agreed and let go of Dunn. At about the same time, Dabbs returned to the room and said they would go ahead and transport Dunn to the clinic, so Cannon caught only the very end of a conversation between Griffin and Smith. Cannon says that he heard the officer remark that he worked at the VA for some years and this was the kind of incident they handled frequently. Cannon did not hear what Griffin said to promot this remark. Griffin's account of this incident up to the point where he had words with officer Smith is virtually identical and is also credited. With regard to the remainder of the incident he testified that after Dunn began screaming about her arm, Cannon asked the officer not to be so rough with Dunn, that she was a lady. Griffin then said to the officer "she only weighs about 105 pounds, and you shouldn't use so much force." According to Griffin, Smith answered that he used to work for the VA, and he knew "how to handle these kind of people." Griffin also testified that Smith said, if this was the LAPD they would do worse things. Griffin replied, "That's not called for. I mean, I don't think that even has anything to do with this." Griffin's assessment finds support in the testimony of Corpsman Dabbs who found Dunn to be terribly emotionally distressed and "emotionally unstable." Dabbs relayed this information to the doctor who ordered Dunn brought to the clinic for evaluation. In Dabbs considerable experience in such matters, she testified that officers in such situations generally follow her back to the clinic. At about the same time, Griffin recalls that Dabbs reappeared and asked for assistance getting Dunn into the ambulance. Griffin informed her that the officer was trying to arrest Dunn. The paramedic said no he wasn't, because she had to take Dunn to the clinic for medical evaluations. Griffin wasn't sure what Smith did at that point, but he thought Smith walked away and the paramedic continued to talk to him. However, Griffin could not hear their conversation. Navy corpswoman Dabbs supplied more detail of what happened at this point. She told Smith that she had a direct order from the doctor to bring Dunn back to the clinic for evaluation. According to Dabbs, Smith became very angry and told her that she was obstructing justice. Dabbs told him she had a direct order, that she had been called to the scene and it was her duty to take care of the patient first. She told Smith that if he wanted to follow the ambulance back to the clinic, he could question Dunn after the doctor released her. The officer according to her seemed upset, but he and his partner did follow the medical personnel back to the dispensary. Griffin and Cannon then assisted the paramedic in taking Dunn out to the ambulance and onto the stretcher. Both Griffin and Cannon also went to the dispensary to see if Dunn was all right. Jacqueline Dabbs has been a medical corpsman in the Navy for six years. Her military rank at the time of the incident was HN-2 or E-5. She testified that when a medical officer, who is a doctor, gives her a direct order to bring a patient in to the clinic, then that is what she has to do. Because she is not a doctor, she cannot release a patient to police officers on her own, as that is outside the scope of her authority. Normally, the police would follow the ambulance back to the clinic and then, after the patient had been treated and released, they could arrest the individual or do whatever they felt necessary. Dabbs testified that this has happened on a number of occasions, both with civilians and with military patients. Since the stories of each side are vastly different it is worthwhile to outline what each side saw in this matter. Smith testified that Cannon grabbed Dunn around the waist when she screamed and jumped up, moving toward the foreman who was trying to get the surrounding employees back to work. He then claimed that Officer Jones, who did not testify, grabbed Dunn's legs, not Griffin. It should be noted that Officer Jones was the primary officer and Smith was only backup. Smith's actions as backup seem over-zealous. Even according to Smith, Griffin was engaged in attempting to restrain Dunn. Then Smith testified that he took out his handcuffs with his right hand and grabbed Dunn's wrist with his left hand, intending to put her in handcuffs. At that point, Griffin allegedly grabbed Smith's left wrist or hand (which was hanging on to Dunn), with one hand, and Smith's handcuffs with his other hand. Cannon testified that he told Smith to let go to Dunn's arm and makes no mention of Griffin interfering at that point. Cannon also unequivocally stated that Griffin did nothing physical to Smith. Smith said he was going to place Dunn under arrest, and Griffin said "No, you're not." Armenta, Respondent's other witness, as we later see, testified only that Smith was seeking to restrain Dunn by handcuffing her. Smith told him, "Yes, I am" and Griffin allegedly replied that Smith would have to fight him first. As he made this threatening remark, allegedly Griffin pushed his upper body against Smith's elbow, trying to break his hold and to step completely between Smith and Dunn. Officer Smith also testified that Griffin asked if Smith knew who he was, and Smith acknowledged that he knew Griffin was a Union official. Smith also mentioned working at the VA and said he had worked with disturbed people and admits telling Griffin that if this was the LAPD, it would be much worse. Smith admitted that he had told Griffin that Griffin would be arrested and booked if it was any other American law enforcement agency. However, Smith also wanted to arrest paramedic Dabbs for obstructing justice. It is also suggested that Smith wanted to arrest Cannon. Although Smith conceded that this was Officer Jones' area and he merely came to back up Jones, he could not explain why he decided to arrest Dunn without conferring with Jones. Initially he states that he did it because he was a corporal and Jones is a regular officer, and then he surmised Jones was busy trying to help the others restrain Dunn, so he wasn't in any position to put handcuffs on Dunn. Although the damage to the shop office was already done when Smith arrived, and that is why Dunn was ultimately cited, Smith made no move to arrest her until she was emotionally distraught and being restrained by several others. In fact Smith admits that he never spoke with Dunn at all and Jones asked only if she was injured, but nothing about what happened to the room. Officer Smith's story lacks the consistency to make it seem true. While his memory of the alleged scuffle is clear he has difficulty recalling any of the associated events which were going on around him. His defective vision leaves too many questions to have his account readily accepted. For example, Smith stated that the paramedics left before Dunn erupted to go back to the dispensary, and never returned. I credit Dabbs, but Smith does not recall speaking with her although she says he talked with her twice and in one conversation he claimed that she was obstructing justice. When asked who escorted Dunn to the ambulance, he said it was Griffin, Cannon, Officer Jones and himself. When asked how they knew an ambulance was there when the paramedics had left to go back to the dispensary, he stated that the paramedics may have started to leave, but perhaps it was decided by someone else to grab them before they took off. Clearly Dabbs, Cannon and Griffin were instrumental in taking Dunn to the dispensary. Later he testified that he did recall the paramedic came back and told him that she was taking Dunn to the dispensary. Dunn then went to the dispensary accompanied by Cannon and Griffin. When asked again whether the paramedic came back and took control of the situation, Smith did not answer the question, but instead said there was no physical contact between the paramedic and Dunn. On redirect, Smith was asked to name who left the office with Dunn, he said Cannon and Griffin, Dunn and a lot of shop employees. In response to a question from Respondent's counsel, Smith agreed that the paramedics were also there. When asked again who accompanied Dunn from the office to the ambulance, Smith took the hint, and included both the paramedics and the ambulance personnel. No one else ever mentioned the ambulance personnel coming into the building to escort Dunn out. But immediately after making the assertion that the paramedics escorted Dunn out, Smith was questioned as to how they could have escorted Dunn out when they left the office area. Smith replied that he did not watch the paramedics to find out where they went, he merely knew they left the area. When asked again who escorted Dunn to the ambulance, Smith said several people, but mostly Cannon and Griffin. Obviously, Smith was trying very hard to say whatever he thought the questioner wanted to hear or whatever would help his case, without regard to the truth. When asked why he would simply let Dunn walk out with Griffin and Cannon if he was, as he asserted, in charge and Griffin was subject to arrest, Smith became agitated. At first he said he knew where they were going and Dunn seemed to be in control of herself again. Then he said the only thing he could have done with Griffin was to place him under arrest which would involve "a great deal of force," require another police officer and car, and possibly result in serious injury to someone. Smith's reaction to this incident seems excessive to an onlooker. He did not explain why such use of force or threat of serious injury would be necessary to place a single individual under arrest. It becomes even more inexplicable when the two officers later issue Griffin a citation at the dispensary without incident, while three officers, /3/ two cars and "a great deal of force" would have been required at Building 130. Since there was no difficulty in issuing the citation Smith's reasoning seems fallacious. Smith also showed a tendency to manufacture answers which sounded plausible and were supportive of his version of the incident. An illustration of this occurred when he was asked why the ambulance was there, when he had already testified the paramedics had gone back to the dispensary, he quickly corrected that with a story about someone stopping them before they left. Obviously a fabrication having nothing to do with what happened that day. Another such instance occurred when he was asked why he thought Griffin was at the scene on May 21, he said he assumed some shop employees called him. Smith actually had no idea how Griffin became aware of the problem with Dunn. Rather than say so, he seemingly sought to forge a plausible sounding answer without regard to the truth. In fact, when asked what action he would have taken if Griffin had told him that the Director of Labor Relations asked Griffin to go down to Shop 17 and handle the matter, Smith replied, in a particularly illuminating manner that he wouldn't have believed Griffin. His knowing Griffin, and that he served in a responsible position at the Shipyard speaks volumes about Smith and his ability to handle delicate situations such as this one. I find his answer to that question incredible. George Armenta, a Foreman in Shop 17, was Respondent's other witness. Mr. Armenta testified that he was present in the room when Dunn threw her tantrum and had to be restrained. He stood about two desks away from Dunn and the othersinvolved and watched the entire incident. His explanation for his failure to take any responsibility, since he was a foreman, or be of any assistance was his belief that a foreman should be seen but not heard or in other words, that he ought to observe, but not participate. Armenta's version of what happened after Dunn's tantrum is that Cannon grabbed her waist and Officer Jones grabbed one foot or, possibly both, and Griffin was holding on to her left arm, and that Smith also grabbed Dunn's arm is plausible, if this is what he saw. Armenta says Smith tried to handcuff Dunn, and Griffin grabbed Smith's arm in one hand and Dunn's in the other and tried to pull them apart to break Smith's hold on Dunn's arm. According to Armenta, Smith said he had to restrain her, and Griffin told him no. Interestingly Armento makes no mention of an arrest merely restraint. When Smith insisted Griffin asked if Smith knew who he was. Armenta did not hear whether Smith replied, but Griffin then said he was President of the Metal Trades Council which ie is not, he is a vice-president. Armenta heard Griffin say that Smith would have to fight him first before he would let Smith handcuff Dunn. Armenta also saw Griffin pulling on Smith's hand while he made these statements. After the above statement, according to Armenta, Smith released Dunn's wrist and put away his handcuffs. Although Armenta claims he heard Griffin threaten to fight the officer, he did not hear Smith say anything about previously working at VA and knowing how to restrain disturbed people. Something that Griffin, Cannon and Smith all recalled being said. Other than recalling Griffin's words exactly the same way Smith does, Armenta and Smith accounts are even different. Armenta's selective hearing therefore, cannot be credited. As discussed above, Armenta said Griffin grabbed Dunn's arm in one hand and Officer Smith's in the other and tried to pull them apart, while Officer Smith testified that Griffin grabbed Smith's right hand and handcuffs in one hand, and Smith's left wrist in his other hand and pushed his upper body against Smith's elbow. Moreover, Armenta indicated that the paramedic or nurse (as he recalled Dabbs) returned about the time that Smith backed off, and Griffin then told her that the officers were trying to handcuff Dunn. Armenta also engaged in selective seeing. After Dunn left with the corpswoman, he asserts that the two police officers and Griffin remained in the room with him. Of course, Smith, Dabbs, Cannon and Griffin stated that they left with Dunn. Armenta acknowledged that there was a struggle and a lot of excitement, and that it was possible for someone to be hanging on to a leg at one point and an arm at another, but he would not say there was room for differences in the way different people saw the event. Michael Curry has been the Chief of the Criminal Investigations Division at the Shipyard since about January 1985. On May 21, 1985, he heard about the disturbance caused by Dunn over the radio in his office, and decided to go to the building. As he arrived, he saw the ambulance leaving and Smith outside the building. Smith told him how Dunn had gone wild and torn up the office and had been taken to the dispensary. Then Smith said he had a problem. He said Griffin had interfered with him "while he was trying to take police action with Dunn." Curry asked what the problem was. Smith said he wanted to cite Griffin but he wasn't sure. Curry asked why, and Smith said he wasn't sure whether he was going to get the backing or whatever. Curry told Smith he would have to make his own decision. When questioned about this backing, Curry explained that his understanding was that in the past, the practice was that no one would support the police officers in the Shipyard and when they "did anything that would come close to trying to (en)force the law when it pertained to any union members or anything like that they were chastised for it." This statement leaves little doubt that Griffin's Union position was being taken into account in issuing the citation. Possibly Griffin would not have been cited had he not been a Union official for Cannon also told Smith to take it easy in effect and Dabbs who insisted in taking Dunn to the dispensary were not cited. Furthermore, Cannon was not cited even though he had words with Smith which were equally as strong as those used by Griffin. Curry also testified that although he had never met Griffin, that was one of the first names he picked up when he came to the Shipyard and he was well aware of his union status. Frank Rodriguez the Union President corroborated Curry's account. He testified that while discussing another matter Curry mentioned to Rodriguez at the time of "the Griffin thing" stating that the officer asked if Curry would back him if he gave a ticket to a union guy, and Curry told the officer they would back him if he deserved it. Smith testified only that he gave Curry the facts of what happened and said nothing further. After receiving permission from Curry to ticket a union man, Smith went to the medical clinic where Dunn was being treated. Both Cannon and Griffin were at the dispensary waiting for Dunn. Smith asked for Griffin's ID badge and wrote him a citation for interfering with a police officer while trying to make an arrest. The officer gave Griffin the citation telling him he did not have to sign it, but requested that Griffin sign the citation. Griffin refused, and Smith said Griffin had not cooperated up to this point, so he didn't see why Griffin should now. Cannon testified that he was "kind of shocked" by Smith's remark, because he saw Griffin respond to everything the officer had asked. Obviously, it is necessary to make a credibility determination as to which version of Griffin's behavior during Dunn's tantrum is to be believed. I credit the version given by Cannon and Griffin, and corroborated in part by Jacqueline Dabbs, as more accurate and plausible. In this regard, it is noted that Dabbs was at the time a member of the armed forces stationed at the Long Beach Naval Station Clinic. She is currently stationed at the Marine Corps Air Station in El Toro, California. Thus, she is not a Shipyard employee nor is she affiliated with the Union in any way. Given her status, there was no reason for her testimony to be biased in any direction. Insofar as she witnessed the relevant events, her testimony is one of the most objective of any of the witnesses. Cannon, in my view, also is extremely credible. Although at one time he was a union steward and represented Dunn on various occasions, he is now a supervisor and an agent of the Shipyard. Moreover, Cannon was sufficiently worried about being caught in the middle between the Union and the Shipyard that he went to Security Code 1700, and had talked with Curry about what he saw and heard on May 21, 1985. Cannon is presently a supervisor, his sympathies are far more likely to lie with Respondent, and he made it clear to Curry in their conversation that he would simply tell what happened without embellishment. Therefore, his testimony as to the events of May 21 is also credited. Armenta's version just contains too many inconsistencies to be relied on. Smith's bias is exhibited in his desire to ticket the Union man. Moreover, he waivered in significant areas of testimony, was surly and somewhat uncooperative when questioned. His inability to respond to questions in a direct and forthright manner also detracts from his testimony. A significant aid in determination of credibility is the absence of Officer Jones whose area the incident occurred in. One is left with the inescapable inference that Jones' testimony would not have corroborated his fellow officer's account. The pregnant silence of Officer Jones, coupled with Officer Smith's chronic evasiveness and Armenta's inconsistency when compared to any other witness' testimony, together work to create, in my opinion, a perplexing version of what occurred between Griffin and Smith that is difficult for me to credit. Conclusions (1) Whether the bargaining unit status of employee Shelly Dunn is pivotal in this matter. Respondent argues, without persuasion to me, that because Ms. Dunn was an AFGE bargaining unit employee on detail that Griffin was not authorized to represent her. Such an argument is wide of the mark in this case. /4/ The status of Dunn has no bearing on the issue here but, the pertinent question is whether the activity engaged in by Griffin was a right protected by the Statute. What is involved is whether or not a union representative acting in that capacity is engaged in protected activity when he responds to a call for assistance from the activity as a union representative. The uncontradicted facts are that Griffin was on the scene in this matter only because of his position as a high union official and because he was asked to be there and give assistance by Respondent's labor relations office. For an agent of Respondent to seek union assistance in a matter which he deemed it necessary and then when the matter gets out of hand to assert that the Union could not have properly aided in the matter because the employee involved was in the wrong bargaining unit is sheer sophistry. The question in this case is not one of authority to represent, but is limited to how the representative got involved in protected activity. Clearly the involvement came as a result of Griffin being contacted in the Union office by Respondent's labor relations office and being requested to act in an official union capacity. Certainly those present, with the exception of foreman Armenta were involved to some extent in calming Dunn down. Moreover, at one time or another at least three full grown men were holding on to some part of Dunn to subdue her. When Smith belatedly became involved in what appears at that time to have become a medical problem there is no wonder he became frustrated and wanted to arrest everyone involved. Frankly, from the record, while I would not want to substitute my judgment for that of an arresting officer, Smith's conduct should cause concern and closer scrutiny of him by those who supervise him. After all, this was not the LAPD or the VA Hospital, but clearly a case where an employee was having a problem which required some consideration in its handling. Others were apparently supplying that care when Smith intervened. I, for one, question his judgment in this matter. In any event, the evidence establishes that Griffin was not ticketed or cited for assisting Dunn or for preventing her arrest, but because he was a Union official, which makes his representational status in relation to Dunn immaterial. However, I further find that, Griffin was assisting Dunn in his capacity as a union official. In such circumstances, it is found that Griffin was engaged in representational duties when he went to the scene at managements' request to aid in the Dunn matter and his action was protected by the Statute. (2) Was Mr. Griffin's conduct while assisting Dunn so improper as to take it outside the ambit of protected activity. The Authority has stated that not every alleged impropriety committed by an employee while otherwise engaged in protected activity is beyond the ambit of the protected activity. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979); Department of Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984). The test is whether the employee engaged in flagrant misconduct. Department of the Army, Headquarters Military Traffic Management Command, 2 FLRA 540 (1980); Defense Logistics Agency, Defense Depot, Tracy, California, 16 FLRA 703 (1984). The circumstances that prompted the contested conduct are also important. U.S. Forces Korea/Eighth U.S. Army, 17 FLRA 718 (1985). Were it not for the apparent gravity of Dunn's emotional difficulty the scene would be humorous. Here we have 2 foremen, 3 DOD security officers, 1 paramedic, 1 high ranking union official, 1 EEO officer all called to the scene by someone, and who knows how many rank and file employees, attempting to calm down or restrain 1 small 105 lb. female. There is no wonder that confusion resulted and tempers flared. What is plain is that Griffin like the others was assisting in subduing Dunn. In her state everyone was trying to calm her down. While Smith's methods, according to him were tried and true it is of interest that he did not make a move until Dunn was being held by two others. Assuming, then, that Griffin was assisting Cannon and others in subduing Dunn and made two comments to Smith, the question is whether his remarks fall outside the protection of the Statute. I limit myself to the comments only because I credit Cannon that he was standing between Griffin and Smith during the entire time and there was no physical contact between the two. In so doing I reject Respondent's argument that physical interference occurred. The Griffin comments at issue are first, a statement that he didn't think Smith should use so much force on the lady, and second, in response to Smith's statement about knowing how to handle disturbed people from his experience with the VA, a remark that Smith's comment wasn't called for and had nothing to do with the situation. /5/ The General Counsel cited two cases where statements were made concerning supervisors which stemmed from union dissatisfaction concerning actions of those supervisors which were protected by the Statute. Veterans Administration Washington, D.C. and Veteran's Administration Medical Center, Cincinnati, Ohio, Case No. 5-CA-50346, OALJ 86-53, (May 2, 1986); Internal Revenue Service, North Atlantic Service Center, 7 FLRA 596 (1982). Griffin's remarks to Smith, if they were offensive at all were far less contumelious than the conduct of the union representatives in either Memphis Service Center or Veterans Administration, supra. Griffin merely expressed his opinion regarding the propriety of the officer's behavior in a harmless fashion which clearly was intended to convince the officer to modify his somewhat unusual conduct. Also Griffin's statements were no more intemperate nor did they tend to interfere more than those of either Cannon or Dabbs. In fact Cannon made quite clear to Smith that the matter should be handled differently. If Smith was eager to cite someone for comments I do not see, from this record where those two comments interfered with any "police action against Dunn." Based on Dabbs' testimony, officers normally wait until a patient is released to take any action. Smith apparently was unaware of this procedure. Under all the circumstances of this case, Griffin's conduct cannot be found to constitute flagrant misconduct, as he in my opinion acted in a reasonable, nondisruptive way. Compare, Defense Logistics Agency, supra, and Puget Sound Naval Shipyard, supra. Respondent's argument that Griffin would have received a citation regardless of his activities as a Union representative does not withstand scrutiny. In order to benefit from such a claim Respondent would have to establish that Griffin's conduct was egregious or that he did interfere with Smith in making an arrest. This record does not support such an inference. To proclaim that Griffin's union position had nothing to do with this matter misses the entire point. Several individuals were involved in subduing Dunn or with taking her to the dispensary. None of the other individuals, although each had words with Smith was cited. Furthermore, there was no physical contact and the language used by others was even stronger than Griffin's. If they were not cited then why should Griffin have been. Cannon admitted that he asked Smith to let go of Dunn's arm, and candidly stated that he heared the officer had confused Griffin with him, because they have a similar appearance. He was sufficiently disturbed over the fact that Griffin was cited when he was not, that he went to Security on his own initiative to discuss the incident with them. He expressed his concern over being caught in the middle, because he is a management official and he did not want to have to take sides. Unfortunately, his attempt at intervention was to no avail. While Dabbs was certainly performing an official function, Smith also threatened her with police action for "obstructing justice." Seemingly she prevailed only because she told Smith that a doctor had ordered Dunn brought back to the clinic. That Dunn was in need of medical assistance at the time was clear for anyone, except Smith, to see. All of this suggests that the true concern of the DOD officers was Griffin's well known activity on behalf of the Union rather than any interference with an arrest. Griffin was a convenient focus for the frustration of the officers who were unaccustomed to having anyone question their behavior. If this were not so, Smith would not have approached Curry with a demand to know whether Curry would back him if he issued a citation to a union man. Nor would Curry have conveyed the Smith message to Rodriguez. Curry, who at the time of this incident was new on the job, testified that it was his understanding that the officers felt they never received any support when the Union questioned their actions, and the officers always ended up being chastised for their behavior. The clear inference here is that this statement provides the anti-union animus that Respondent argues is missing. Thus, Curry was anxious to show his support, and this incident gave him the opportunity to do so. But for Griffin's involvement with the Union, none of this would have been a consideration, and the citation to Griffin would not have issued. Having found that Respondent violated section 7116(a)(1) and (2) of the Statute by issuing a citation to Mr. Griffin it is recommended that the Authority adopt the following: ORDER Pursuant to section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7118(a)(7)(A), and section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. section 2423.29(b)(1), the Authority hereby orders that the Long Beach Naval Shipyard, Long Beach California, and Long Beach Naval Station Long Beach, California shall: 1. Cease and desist from: (a) Discriminating, retaliating, or taking reprisal against Frank Griffin, Sr. or any other employee by issuing a citation to that employee while or because he was engaged in protected activity on behalf of the Federal Employees Metal Trades Council, AFL-CIO. (b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights guaranteed by the Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute. (a) Rescind the citation issued to Frank Griffin, Sr., on May 21, 1985, and expunge all references to the citation from all files or documents in our possession or control in which such references might appear. (b) Post at its Long Beach Naval Shipyard, Long Beach, California; and Long Beach Naval Station, Long Beach California facilities copies of the attached motive marked "Appendix", on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commanding Officer or Commanding Officers and they shall be posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. The Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the 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. /s/ ELI NASH, JR. Administrative Law Judge Dated: July 22, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) As argued by the General Counsel, the Respondents have raised matters in their brief which were not presented to the Judge. However, these matters concern aspects of the Authority's subject matter jurisdiction which must be considered by the Authority at every stage of the Authority's proceedings. Accordingly, we reject the General Counsel's motion to strike. Noting the Respondents' unexplained failure to raise these matters before the Judge, we have considered the portions of the Respondents' brief complained of by the General Counsel only as deemed necessary. (1) The Complaint was amended at the hearing to add Long Beach Naval Station, Long Beach, California as a party Respondent. (2) Officer Smith and foreman Armenta seemed to think Dunn was getting the better of whoever was holding on to her. (3) A third officer, Sergeant Nolan was also present at the scene of the disturbance. Only Griffin recalls a third officer and there is no indication from the record what role, if any, he played in the matter. (4) Cases cited by Respondent such as Federal Law Enforcement Training Center and AFGE, Local 2002, 4 FLRA No. 14 (1980); Panama Canal Commission and AFGE Local 1805, 5 FLRA No. 20 (1981); Labor Management Services Administration, 9 FLRA No. 91 (1982); U.S. Army Aviation Systems Command, 20 FLRA No. 36 (1985); Naval Construction Battalion Center, 14 FLRA No. 60 (1980); are all readily distinguishable and have no application here. (5) I do not credit either Armenta or Smith that Griffin indicated that Smith would have to "fight." 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discriminate, retaliate, or take reprisal against Frank Griffin, Sr., or any other employee, by issuing a citation to that employee while or because he was the employee engaged in activity on behalf of the Federal Metal Trades Council, AFL-CIO. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the citation issued to Frank Griffin, Sr., on May 21, 1985, and will expunge all references to the citation from all files and documents in our possession or control in which such reference might appear.