[ v12 p363 ]
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 department, the largest of three at the Shipyard, employed about 7,000 employees. /3/ Not in evidence. /4/ This, of course, has the ring of Ault's testimony that he told Bond that, if provided with assurances against discipline, the Union would have "no problem with the search . . . as possibly compromising our position."