[ v16 p257 ]
The decision of the Authority follows:
16 FLRA No. 37 DEPARTMENT OF THE NAVY NAVY RESALE SYSTEM, FIELD SUPPORT OFFICE, COMMISSARY STORE GROUP NORFOLK, VIRGINIA Respondent and WILLIAM J. TATEM Charging Party Case No. 43-CA-1116 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices as alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and a supporting brief, and the General Counsel filed an opposition to such exceptions. /1/ 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. /2/ The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions, and recommended Order. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Department of the Navy, Navy Resale System, Field Support Office, Commissary Store Group, Norfolk, Virginia, shall: 1. Cease and desist from: (a) Suspending without pay employee William J. Tatem based on his participation in the filing of unfair labor practice charges with the Federal Labor Relations Authority, and his giving information in connection with those charges. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Make whole employee William J. Tatem for the pay lost during his suspension of April 23, 24 and 25, 1980. (b) Remove any record of the suspension of March 28, 1980 from the personnel file of employee William J. Tatem. (c) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an authorized representative of the Respondent and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IV, 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. Issued, Washington, D.C., October 24, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT suspend without pay William J. Tatem based on his participation in the filing of unfair labor practice charges with the Federal Labor Relations Authority, and his giving information in connection with those charges. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL make employee William J. Tatem whole for any loss of pay suffered by his suspension of April 23, 24 and 25, 1980. WE WILL remove any record of the suspension of March 28, 1980 from the personnel file of employee William J. Tatem. (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 IV, Federal Labor Relations Authority, whose address is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atalanta, Georgia 30309, and whose telephone number is: (404) 881-2324. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF THE NAVY NAVY RESALE SYSTEM, FIELD SUPPORT OFFICE, COMMISSARY STORE GROUP, NORFOLK, VIRGINIA Respondent and WILLIAM J. TATEM Charging Party Case No. 43-CA-1116 Barbara S. Liggett, Esq. For the General Counsel Mr. Walter B. Bagby For the Respondent Mr. George L. Reaves For the Charging Party Before: ALI NASH, JR. Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, 82 Stat. 1191, 5 U.S.C. 7101, et seq. It was instituted by the issuance of a complaint on March 6, 1981. The complaint alleges that the Department of the Navy, Navy Resale System Field Support Office, Commissary Store Group, Norfolk, Virginia, hereinafter called the "respondent", violated section 7116(a)(1) and (4) of the Statute by suspending employee William J. Tatem because he filed a complaint, affidavit, or petition or had given information or testimony under the Statute. In its answer respondent denied the commission of any unfair labor practice. A hearing was held in this matter on May 20, 1981, in Norfolk, Virginia. /3/ All parties were represented and afforded full opportunity to adduce evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed by all parties. Upon consideration of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommended order. Findings of Fact At all times material herein, respondent has been and is now an agency within the meaning of section 7103(a)(3) of the Statute. Respondent and the union are parties to a collective bargaining agreement. William J. Tatem is a Meat Cutter Helper, WG-5, employed at respondent's Commissary. Edward Sadler is a Meat Foreman, WS-8 at the same facility and is Tatem's immediate supervisor. Around September 17, 1979, the union filed a charge in Case No. 3-CA-493 on behalf of Tatem. On January 21, 1980, the union filed a second charge in Case No. 3-CA-814 against respondent on behalf of Tatem. A withdrawal request in Case No. 3-CA-814 was approved by the Regional Director, Region IV on June 30, 1980. On January 30, 1980, Sadler called Tatem and another employee, Eddie Cason, who also is a union representative, into his office and had a discussion with them concerning the failure of both to wear safety shoes. Sadler told them that this would be the last time for not wearing their safety shoes and the next time he was going to write a letter of reprimand. Cason responded that he did not wear the shoes because they hurt his feet and Tatem told Sadler that his shoes had been lost. Despite Sadler's contention to the contrary, I find that he called both employees in to admonish them. The record is replete with evidence that all employees in the meat processing department, both part-time and full-time committed safety violations regularly with impunity. While Tatem denies any further violations regarding not wearing safety shoes, /4/ Cason states that even after this discussion with Sadler, that Sadler spoke to him again on more than one occasion about his failure to wear safety shoes. However, Cason was not disciplined nor is there any record evidence that Sadler sought to discipline Cason for repeated safety violations. Sadler then contacted the personnel office and spoke with Ms. Connie Reinking. Sadler told her, in essence, that he was having difficulty with Tatem and that he was considering disciplinary action. Reinking suggested that Sadler talk with Tatem, inform him that disciplinary action was planned and give him his rights to have a union representative. While Sadler maintains in his deposition that Cason was in the January 30, 1981 meeting as Tatem's union representative he obviously was not sure what Cason's position was at the time he talked with Reinking. In a subsequent meeting with Ms. Reinking, Labor Relations Specialist Joseph Lee Griggs and Lt. William Russell, Officer-In-Charge of the Commissary, the January 30, 1980 incident was discussed. It was then discovered that Tatem had been issued a letter of reprimand for a safety violation in February 1978. Griggs recommended, based on the fact that this was a second violation within a 2-year period, that Tatem be suspended for three days. /5/ Per instructions Sadler submitted a disciplinary form on February 14, 1980 which stated that on "1-30-80" Tatem was "not wearing safety equipment when required to wear it, safety toe shoes-- was wearing a type of tennis shoes." Another form indicated that an informal discussion with Tatem was held on "1-30-80 and 2-27". Since Sadler could not recall whether he had told Tatem that he planned disciplinary action and was not certain that Cason was there as the union representative Reinking suggested that he hold another meeting with the same people present and explain what he was planning to Tatem. Although Cason and Tatem did not testify concerning such a meeting Sadler submitted the informal discussion slip referred to infra to Reinking. /6/ Tatem, however, did testify that he heard no more from Sadler concerning the incident. In any event, I find that whether a second meeting was held is irrelevant since this meeting was allegedly held only to correct an oversight concerning union representation. After Sadler told Reinking that the second meeting had been held she prepared a proposed suspension letter based on the January 30 incident. The letter was prepared for Lt. Russel's signature. This suspension letter was the issue of March 10, 1980. On March 12, 1980, Tatem and others were interviewed by an agent from the Federal Labor Relations Authority, Region 3 at the worksite in connection with Case No. 3-CA-493. On March 13, 1980, Tatem received the notice of proposed suspension. On March 29, 1980, Tatem received a final notice of decision to suspend him for three days from April 23, 1980 through April 25, 1980. The record shows a long standing feud between Tatem and Sadler with which most of those who testified were familiar. Sadler was also involved in the 1978 disciplinary action against Tatem. Cason states "it seemed like Sadler had something personal against Mr. Tatem before he even came over to the Oceana place." Labor Relation Specialist Griggs also confirmed that he was aware that personal problems existed between the two. Discussion and Conclusions Section 7116(a)(4) makes it an unfair labor practice to "discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter." The General Counsel contends that the filing of a charge is encompassed within the meaning of this section and that the discriminatee, Tatem was disciplined because of several charges filed on his behalf by the Union. I agree with the General Counsel that if Tatem was disciplined because he filed charges with the Authority such conduct would violate the Statute. Respondent asserts that Mr. Tatem was suspended for cause, without regard for his giving information under the Statute. In defense it urges that Tatem was a frequent offender against the requirement to wear safety equipment; and his failure to observe this requirement on January 30, 1980, after having been warned on several occasions, left it with no other recourse other than to impose disciplinary action against him in an effort to correct his behavior and maintain the morale of other employees. The record clearly demonstrates that Tatem was a chronic violator of the safety standards, but so was almost every other meat cutter in the shop. Tatem's conduct and that of other employees was tolerated without disciplinary action until the union began filing charges on Tatem's behalf. Furthermore, the record clearly establishes that such violations as the one for which Tatem was suspended occurred on a regular basis even after the January 30, 1980 counseling session and not one single employee at the shop except Tatem was ever disciplined. There is also very little support on the record to justify respondent's feeling that Tatem did not "heed" the advice or warning of supervisors or that he was a disruptive employee. While the procedural aspects of the suspension are not questions, it is clear that inconsistencies exist as to what actually occurred and the real reason for Tatem's discipline. At the hearing, Labor Relations Specialist Griggs admitted had he known the entire story that he might have "second thoughts about the matter." In my view the General Counsel made a prima facie showing that Tatem had engaged in protected activity and that this conduct was a motivating factor in Sadler's decision to recommend a suspension. Cf. Internal Revenue Service, 6 FLRA No. 23 (1981). Here the union had filed several charges in Tatem's behalf, albeit at least one of the charges was withdrawn. Sadler was named in at least one of the charges which involved his having an altercation with Tatem about a hair net. Shortly after the filing of the second charge Sadler decided to discipline Tatem, although he allegedly did not know what form the discipline would take. The discipline involved a suspension for violation of safety standards which had been committed with frequency by almost every other employee in the meat cutting shop without disciplinary action, both before and after Tatem's suspension action was initiated. Moreover, respondent and Sadler were aware of the filing of charges at the time discipline was proposed. Thus, although Sadler had repeatedly warned Tatem and other employees to adhere to safety standards, no disciplinary action was taken until after Tatem's unfair labor practice charges had been filed. In such circumstances, the disparate treatment of Tatem must be refuted. The burden thus shifts to respondent to establish by a preponderance of the evidence that its decision to suspend Tatem would have been the same even in the absence of unfair labor practice charges being filed on his behalf. Respondent vigorously defends its disciplinary system and its decision to suspend Tatem because of a second violation but, offered little evidence with respect to employee discipline for similar violations in the meat cutting shop. Such lack of evidence leaves the Tatem incident standing in isolation. What is in question here is Sadler's motivation for recommending any disciplinary action for Tatem notwithstanding the fact that he had never suggested discipline for other employees who regularly committed the identical safety violations for which Tatem was charged and that even Tatem's conduct was tolerated until he filed charges with the Authority. Without doubt Tatem had some personal problems with Sadler. Further, Sadler was party to the earlier reprimand of Tatem for failure to wear a safety vest. As Sadler testified in his deposition he was completely frustrated with Tatem and a part of that frustration, as the record demonstrates, was Tatem's unfair labor practice charge filed with the Authority when Sadler approached him concerning wearing a "hair net," another safety feature. As already stated, Sadler and Tatem had been at odds for years and Tatem had been reprimanded on at least one other occasion. Oddly enough others committed the same violations without discipline, so the question is promptly raised, why Tatem? The sessions Sadler held with agency management are illuminating and form the basis for credibility findings contrary to respondent's position. Sadler was not entirely candid in his dealings with management employees Griggs, Reinking and Russell whose decision to suspend was influenced by Sadler's input. In my view, had the entire matter been revealed at these sessions and properly taken into consideration, Tatem would not have been suspended. First, Sadler was aware of disciplinary procedures contrary to what he relayed to Reinking since he had previously been involved in a reprimand of Tatem. Second, Sadler was not certain what action had been taken in the January 30 meeting with Tatem and Cason which is made clear by his initial contact with Reinking. Third, the timing of discipline, shortly after a second charge was filed lends credence to the proposition that had Tatem not filed charges he would not have been disciplined. Fourth, as is repeatedly shown in the record safety violations occurred on what appeared to be a daily basis by most employees without discipline. Fifth, Sadler's attempt to document Tatem's safety violation and the absence of such records for any other meat cutting employees. And, finally, there is no showing that Tatem was a disruptive force or had made problems among other employees by violating safety standards. In all these circumstances, the conclusion that Sadler took action against Tatem because he had filed a charge is inescapable. In light of the foregoing, it is found that respondent did not rebut by a preponderance of the evidence that General Counsel's position that Tatem was suspended in violation of section 7116(a)(1) and (4) of the Statute. Accordingly, it is found that Respondent's suspension of Tatem was unlawful in that it was based, at least in part, on union considerations and had agency management known the entire story Tatem would not have been suspended. Having found that respondent violated section 7116(a)(1) and (4) of the Statute, it is recommended that the Authority adopt the following order. /7/ ORDER Pursuant to 5 U.S.C. 7118(a)(7) and section 2423.27 of the Final Rules and Regulations of the Federal Labor Relations Authority, U.S. Fed. Reg. 3482, 3510 (1980), it is hereby ordered that Department of the Navy, Navy Resale System, Field Support Office, Commissary Store Group, Norfolk, Virginia, shall: 1. Cease and desist from; (a) Suspending without pay employee William J. Tatem based on his participation in the filing of unfair labor practice charges, with the Federal Labor Relations Authority, and his giving information in connection with those charges. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of any right assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Statute: (a) Make whole employee William J. Tatem for the pay lost during his suspension of April 23, 24 and 25, 1980. (b) Remove the suspension record of March 28, 1980 from the personnel file of employee William J. Tatem. (c) Post at its Department of the Navy, Navy Resale System, Field Support Office, Commissary Store Group, Norfolk, Virginia, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 4, after being signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 30 days from the date of this order, what steps it had taken to comply herewith. ELI NASH, JR. Administrative Law Judge Dated: January 7, 1982 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS We hereby notify our employees that: WE WILL NOT suspend without pay William J. Tatem based on his participation in the filing of unfair labor practice charges with the Federal Labor Relations Authority, and his giving information in connection with those charges. WE WILL NOT interfere with, restrain, or coerce any employee in the exercise of any right assured by the Federal Labor-Management Relations Statute. WE WILL make employee William J. Tatem whole for any loss of pay suffered by his suspension of April 23, 24 and 25, 1980. WE WILL remove from the personnel file of employee William J. Tatem the disciplinary action of March 28, 1980. (Agency or Activity) Dated: By: (Signature) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced or covered by any other material. If employees have any question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Region 4, whose address is: 1776 Peachtree Street, NW., Suite 501, North Wing, Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324. --------------- FOOTNOTES$ --------------- /1/ As the Respondent neither requested nor was granted leave to file a document such as the Respondent's Response to General Counsel's Opposition pursuant to section 2429.26 of the Authority's Rules and Regulations, such document has not been considered. /2/ The Respondent excepts to the Judge's denial of its request for a continuance of the hearing due to the illness of its supervisor, Sadler. The record indicates that the Respondent knew that Sadler was ill for more than a week before it informed the Judge of the witness' unavailability on the morning of the hearing. The Judge granted the Respondent's alternative request that the hearing remain open until the witness could testify. Subsequently a deposition was taken. The parties had the opportunity to question and to cross-examine the witness under oath, and a record thereof was forwarded to the Judge. Thus, the Authority concludes that no prejudicial error was committed simply because the Judge was unable to observe Sadler's demeanor. /3/ At the hearing, respondent represented that its supervisor Edward Sadler was unable to attend because he was either ill or was still in the hospital. Respondent moved for a continuance in order to allow it to have Mr. Sadler's presence as a witness. The General Counsel opposed any continuance or the delay of the closing of the record for the taking of a deposition of Mr. Sadler on the grounds that such delay would create undue delay and expense. Under Sec. 2423.19(d) of the Rules and Regulations of the Authority the undersigned ordered the taking of a deposition from Mr. Sadler. Subsequently, at the deposition the General Counsel renewed the objection to the deposition on the original grounds and further objected that the deposition denied due process and, in effect, granted pre-trial discovery in the matter. In its brief the General Counsel expanded the matter contending that it had no opportunity to present rebuttal witnesses. With respect to the latter argument the General Counsel at no time filed a motion to reopen the record in the matter nor did counsel in any other way indicate to the administrative law judge prior to closing of the record that it had additional evidence to present or indicate the nature and type of further evidence necessary to complete the instant record. In such circumstances, and after reviewing the record, I find that reopening the record for additional evidence is unnecessary. Moreover, the General Counsel had an opportunity at the deposition to cross-examine Mr. Sadler rather extensively and further evidence by way of rebuttal would merely burden the record. Concerning the question of credibility resolutions also raised by the General Counsel, it is my view that such determinations can be made on the basis of testimony of other witnesses and need not depend entirely on my viewing direct testimony of Mr. Sadler. While there is a clear conflict of evidence such credibility determinations can be made on the basis of the entire record herein. With regard to the General Counsel's argument that the granting of a deposition after the hearing allows pre-trial discovery I find no merit. In this regard, where circumstances dictate the granting of a continuance as set out in Sec. 2423.19(m) of the Rules and Regulations as a duty or power of the administrative law judge, such a restriction could preclude the granting of a continuance on almost all occasions thereby diminishing the judge's authority in this respect. I, therefore, find that the General Counsel was not denied due process by the taking of the deposition in the instant matter and accordingly, deny its request to strike the deposition of Edward Sadler and the exhibit introduced at the deposition. /4/ R. Exhibit 5, presented at the deposition is a record kept by Sadler indicating that he spoke to Tatem on February 13, 1980 about not wearing safety shoes. I specifically discredit this exhibit based on the credited testimony of Ms. Reinking and other respondent witnesses that the discipline was based exclusively on the January 30, 1980 incident and not on any subsequent violation of safety standards. Therefore, there was no reason for Sadler to keep such a record. Further, respondent presented no records kept by Sadler on other employees who violated safety standards making this single effort suspect. Furthermore, Reinking states that in a subsequent discussion with Sadler, occurring after February 13, 1980 Sadler stated that "he hadn't any additional infractions, but he would like to continue with the action because his previous oral remarks had not been taken seriously." Tatem's testimony is consistent with that of Reinking in this respect, and I credit Tatem. /5/ According to respondent's witnesses a 3-day suspension is about mid-range in severity for such an offense. /6/ Both Griggs and Reinking were aware that Tatem had two unfair labor practice charges filed on his behalf during the period in question. /7/ The General Counsel's motion to strike portions of respondent's brief, because it introduced facts which were not a part of the record is granted.