Department of the Navy, Portsmouth Naval Shipyard and Portsmouth Federal Employees Metal Trades Council (Authority decision, January 28, 1982)

Final FLRA decision. The Authority adopted the Judge's findings, ordered the shipyard to stop discouraging protected grievance and union representation activity, and dismissed the other allegations. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

The Portsmouth Federal Employees Metal Trades Council brought consolidated unfair labor practice complaints against the naval shipyard. The Judge found that implied threats discouraged one employee from filing or processing grievances and another from acting as a union representative. The Judge rejected the other allegations, and the Authority adopted all of the Judge's findings and recommendations despite exceptions from the General Counsel. The Authority ordered the shipyard to stop the unlawful conduct, post a notice for 60 days, and report compliance, while dismissing the complaints in all other respects.

Decision snapshot

• Authority: Unfair labor practices under 5 U.S.C. § 7116(a).
• Outcome: Judge's split findings adopted; cease and desist and notice posting ordered, with remaining allegations dismissed.
• Key point: Implied threats that discourage grievance filing or union representation interfere with protected rights.

Full text (FLRA public release)

[ v07 p766 ]

07:0766(129)CA

The decision of the Authority follows:

7 FLRA No. 129

DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
Respondent

and

PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
Charging Party

Case Nos. 1-CA-127
1-CA-128
1-CA-129

DECISION AND ORDER

THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION AND ORDER
IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED
IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THE JUDGE FURTHER
FOUND THAT THE RESPONDENT HAD NOT ENGAGED IN CERTAIN OTHER ALLEGED
UNFAIR LABOR PRACTICES AND RECOMMENDED DISMISSAL OF THE COMPLAINT WITH
RESPECT TO THEM. EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER WERE
FILED BY THE GENERAL COUNSEL.

PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) 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 ORDER, AND THE ENTIRE RECORD, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
ORDERED THAT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
SHALL:

1. CEASE AND DESIST FROM:

(A) DISCOURAGING BY IMPLIED THREATS OR OTHER MEANS, MARK POULIN OR
ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS ACCORDED THEM BY THE
FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE TO FILE OR PROCESS GRIEVANCES
UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.

(B) DISCOURAGING, BY IMPLIED THREATS OR OTHER MEANS, FRED W.
LIGHTELL OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS ACCORDED THEM
BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE TO ACT AS A
REPRESENTATIVE OF A LABOR ORGANIZATION, AND IN THAT CAPACITY, TO PRESENT
THE VIEWS OF THE LABOR ORGANIZATION TO HEADS OF AGENCIES AND OTHER
APPROPRIATE AUTHORITIES.

(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
   PURPOSES AND POLICIES OF THE STATUTE:

(A) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDER OF THE PORTSMOUTH
NAVAL SHIPYARD AND SHALL BE POSTED AND MAINTAINED BY HIM FOR SIXTY
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.

(B) PURSUANT TO SECTION 2423.30 TO THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION I, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN THIRTY DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.

IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINTS IN CASE NOS.
1-CA-127, 1-CA-128, AND 1-CA-129 IN ALL OTHER RESPECTS, BE, AND THEY
HEREBY ARE, DISMISSED.

ISSUED, WASHINGTON, D.C., JANUARY 28, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
MARK POULIN OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS ACCORDED
THEM BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE TO FILE
OR PROCESS GRIEVANCES UNDER THE CONTRACTUAL GRIEVANCES: PROCEDURE.

WE WILL NOT DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
FRED W. LIGHTELL OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS
ACCORDED THEM BY THE STATUTE TO ACT AS A REPRESENTATIVE OF A LABOR
ORGANIZATION AND, IN THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR
ORGANIZATION, TO HEADS OF AGENCIES AND OTHER APPROPRIATE AUTHORITIES.

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
STATUTE.

(AGENCY OR 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 QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION I, WHOSE
ADDRESS IS: 441 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS 02116,
AND WHOSE TELEPHONE NUMBER IS (617)223-0920.

-------------------- ALJ$ DECISION FOLLOWS --------------------

A. GENE NIRO, ESQUIRE
FOR THE RESPONDENT

RICHARD B. BLAZAR, ESQUIRE
FOR THE GENERAL COUNSEL

BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DECISION

STATEMENT OF THE CASE

THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
A CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT DATED DECEMBER 28, 1979
FILED BY THE REGIONAL DIRECTOR, FIRST REGION, FEDERAL LABOR RELATIONS
AUTHORITY (FLRA), BOSTON, MASSACHUSETTS, AGAINST THE DEPARTMENT OF THE
NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE (RESPONDENT).

THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTION
7116(A)(1), (5), AND (8) OF THE STATUTE. THE COMPLAINT CHARGED THAT
RESPONDENT (1) DISCRIMINATED AGAINST A BARGAINING UNIT EMPLOYEE BECAUSE
HE FILED A GRIEVANCE AND SOUGHT REPRESENTATION BY THE UNION BY REQUIRING
HIM TO TAKE A SPECIAL TEST AND AN HOUR'S LEAVE WITHOUT PAY; (2) MADE
COERCIVE STATEMENTS TO THE GRIEVANT AND HIS UNION STEWARD; (3)
UNILATERALLY INSTITUTED A NEW TESTING PROCEDURE; AND (4) DENIED THE
UNION AN OPPORTUNITY TO BE REPRESENTED AT A FORMAL DISCUSSION AND AT AN
EXAMINATION CONDUCTED IN CONNECTION WITH AN INVESTIGATION. RESPONDENT
DENIED THE ALLEGATIONS.

A HEARING WAS HELD IN THIS MATTER IN BOSTON, MASSACHUSETTS. THE
RESPONDENT AND THE GENERAL COUNSEL, FLRA, WERE REPRESENTED BY COUNSEL
AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE,
EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE BRIEFS. POST-HEARING
BRIEFS WERE FILED BY THE GENERAL COUNSEL, FLRA AND THE RESPONDENT WHICH
WERE OF CONSIDERABLE ASSISTANCE IN MY RESEARCH AND DELIBERATIONS.

BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.

FINDINGS OF FACT

1. RESPONDENT, A NAVAL SHIPYARD AT PORTSMOUTH, NEW HAMPSHIRE,
   EMPLOYS OVER 8,000 EMPLOYEES, OF WHICH 850 ARE SUPERVISORS. THE UNION
   REPRESENTS APPROXIMATELY 5,300 EMPLOYEES AND HAS BEEN THE EXCLUSIVE
   BARGAINING REPRESENTATIVE OF ESSENTIALLY ALL WAGE GRADE EMPLOYEES SINCE

2. (TR.163).

3. MARK POULIN IS AN APPRENTICE ELECTRICIAN AT PORTSMOUTH NAVAL
   SHIPYARD AND HAS BEEN EMPLOYED AT THE SHIPYARD FOR APPROXIMATELY SIX
   YEARS. HE BEGAN HIS FOUR-YEAR APPRENTICESHIP PROGRAM IN MARCH 1976.
   (TR.14; GENERAL COUNSEL'S EXH. 5). THE PROGRAM CONSISTS OF ACADEMIC
   INSTRUCTION IN ENGLISH, MATHEMATICS, AND MECHANICAL DRAWING BY CLASSROOM
   INSTRUCTORS, TRADE THEORY INSTRUCTION BY SHOP INSTRUCTORS, AND
   ON-THE-JOB TRAINING BY SUPERVISORS. TESTS ARE GIVEN IN THE ACADEMIC AND
   TRADE THEORY COURSES BY THE INSTRUCTORS. SUPERVISORS SOMETIMES QUIZ
   EMPLOYEES, OR REQUIRE THEM TO DRAW A SKETCH RELATING TO A PROPOSED JOB.
   (TR.126-129).

4. RUDOLPH COUTURE BECAME POULIN'S PERMANENT SUPERVISOR IN OCTOBER

5. (TR.30, 175). COUTURE, AS POULIN'S ACTING SUPERVISOR, HAD
   CRITICIZED POULIN'S WORK PERFORMANCE AND ATTITUDE FOR A PERIOD IN 1977.
   (TR.176). PROBLEMS BETWEEN THE TWO INTENSIFIED WHEN COUTURE BECAME
   POULIN'S PERMANENT SUPERVISOR. (TR.30). THE PROBLEMS CENTERED ON
   COUTURE'S ASSESSMENT OF POULIN'S ABILITIES TO DO THE WORK OF AN
   APPRENTICE. POULIN'S MONTHLY GRADES DROPPED FROM BETWEEN 80-85 TO 69,
   AND COUTURE REPEATEDLY TOLD POULIN HE DID NOT KNOW HIS TRADE.
   (TR.31-32).

6. IN JANUARY OF 1979 COUTURE GAVE POULIN A QUIZ INVOLVING THE
   HOOK-UP OF A SINGLE POLE LIGHT SWITCH BEFORE SENDING HIM OUT ON A JOB.
   (TR.177). POULIN FAILED TO CONNECT IT PROPERTY. COUTURE THOUGHT THE
   QUIZ WAS SIMPLE, AND REMARKED, "IS THAT ALL YOU'VE LEARNED IN THE LAST
   THREE YEARS?" (TR.177-178).

7. COUTURE REPORTED POULIN'S FAILURE TO PASS THE QUIZ TO WILLIAM
   AUDETTE, PRODUCTION SUPERINTENDENT AND POULIN'S THIRD-LINE SUPERVISOR.
   COUTURE TOLD AUDETTE HE WANTED TO FAIL POULIN IN TRADE THEORY FOR THAT
   MONTH. (TR.138, 194). AUDETTE INSTRUCTED COUTURE NOT TO FAIL POULIN
   UNTIL THE MATTER COULD BE DISCUSSED WITH NORMAN ROLLINS, POULIN'S
   SECOND-LINE SUPERVISOR. (TR.138).

8. ROLLINS, UPON HEARING COUTURE'S ACCOUNT, MET WITH COUTURE AND
   POULIN. ROLLINS ADVISED POULIN THAT MANAGEMENT FELT HE COULD NOT
   PERFORM ADEQUATELY AT THE LEVEL OF A THIRD YEAR APPRENTICE; THAT HE
   SHOULD DO MORE WORK AND STUDY IN ORDER TO IMPROVE HIS PROFICIENCY; AND
   THAT MANAGEMENT WOULD GIVE HIM ADDITIONAL HELP AS REQUIRED. (TR.88).
   POULIN ACKNOWLEDGED THAT HE REQUIRED ADDITIONAL HELP AND STUDY.
   (TR.96).

9. COUTURE ASKED RAYMOND E. ROBIDA, SHOP INSTRUCTOR, TO PROVIDE
   POULIN ADDITIONAL HELP. (TR.195, 221). HOWEVER, WHEN POULIN OBJECTED
   TO A GRADE COUTURE GAVE HIM, COUTURE ADVISED ROBIDA, "SEEING THAT MR.
   POULIN WANTS TO BE WISE ABOUT THE GRADE I'M GOING TO GIVE HIM, I DON'T
   WANT TO GIVE HIM ANY MORE INSTRUCTIONS UNTIL YOU GET FUTURE NOTICE FROM
   ME." (TR.223-224).

10. IN ABOUT FEBRUARY 1979, COUTURE ASKED POULIN TO DRAW A SKETCH AS
    TO HOW HE WOULD ACCOMPLISH A JOB HE WAS ABOUT TO PERFORM. POULIN'S
    SKETCH SKETCH SHOWED A SHORT-CIRCUIT OF THE WIRING, AS IN THE EARLIER
    QUIZ. COUTURE TOLD POULIN, "I GUESS YOU HAVEN'T LEARNED TOO MUCH
    BETWEEN THEN AND NOW, BECAUSE YOU'VE DONE THE SAME THING." (TR.181).

11. COUTURE AGAIN REPORTED POULIN'S PERFORMANCE TO ROLLINS, WHO
    REQUESTED ROBIDA TO PROVIDE POULIN SOME PERSONAL INSTRUCTION. (TR.89,
    182). ROBIDA GAVE POULIN PERSONAL INSTRUCTION (TR.223), AND, IN
    ADDITION, POULIN WAS ASSIGNED TO WORK WITH SOME OF THE BETTER JOURNEYMEN
    ELECTRICIANS. (TR.182).

12. IN EARLY MAY 1979, POULIN INJURED HIS LEG. HE WAS ASSIGNED
    LIGHT DUTY /1/ OF ANSWERING THE OFFICE TELEPHONE AND WAS INSTRUCTED TO
    SPEND SOME TIME STUDYING. DESPITE THE FOUR OR FIVE DAY ASSIGNMENT, HE
    STUDIED FOR ONLY TWO OR THREE HOURS. (TR.183-184).

13. POULIN'S WORK DID NOT IMPROVE FOR ANY SUSTAINED PERIOD OF TIME
    DURING THE PERIOD OF JANUARY TO MAY 1979. (TR.90, 182). ON MAY 9,
    1979, COUTURE, WITH ROLLIN'S APPROVAL, SENT POULIN A MEMORANDUM ADVISING
    HIM THAT THERE EXISTED A DANGER THAT HE WOULD RECEIVE A FAILING GRADE IN
    ON THE JOB TRAINING UNLESS HIS PERFORMANCE IMPROVED. HE WAS ADVISED
    THAT HE WOULD BE ADVISED OF THE SPECIFIC AREAS OF UNSATISFACTORY
    PERFORMANCE AND WHAT HE MUST DO TO IMPROVE. (TR.35, 90, 182-183;
    RESPONDENT'S EXH. 2).

14. AT THIS POINT, POULIN WAS WORRIED THAT COUTURE WOULD TAKE STEPS
    LEADING TO HIS REMOVAL FROM THE APPRENTICESHIP PROGRAM. POULIN DECIDED
    "TO COVER MYSELF" BY FILING A GRIEVANCE AGAINST COUTURE. HE HOPED THAT
    THE GRIEVANCE WOULD PREVENT COUTURE FROM FLUNKING HIM. (TR.15, 33-34.
    POULIN FILED THE GRIEVANCE ON JUNE 4, 1979 ACCUSING COUTURE OF, INTER
    ALIA, "UNDUE HARASSMENT," A "PERSONAL VENDETTA," A "FALSE ACCUSATIONS,"
    AND "UNBECOMING ACTIONS AS A BIASED PERSON IN THE USE OF STRATEGY TO
    INCRIMINATE." (GENERAL COUNSEL'S EXH.2; TR.15). POULIN HAD BEEN A
    UNION MEMBER SINCE APRIL 1979. (TR.28).

15. ON JUNE 6, 1979, COUTURE INFORMED POULIN THAT ROLLINS WANTED TO
    HAVE A MEETING WITH THE TWO OF THEM. AS COUTURE AND POULIN WERE GOING
    UP THE STAIRS TO TOLLIN'S OFFICE, POULIN ASKED COUTURE IF HE NEEDED A
    STEWARD FOR THE MEETING. COUTURE REPLIED, "IT'S UP TO YOU." POULIN
    STATED, "I DON'T WANT TO CAUSE ANY TROUBLE." COUTURE REPLIED, "WELL, NOW
    YOU'RE USING YOUR HEAD." /2/ POULIN DID NOT REQUEST UNION REPRESENTATION
    FOR THE MEETING. (TR.16-17).

16. DURING THE MEETING WITH ROLLINS ON JUNE 6, 1979, COUTURE ADVISED
    ROLLINS THAT POULIN DID NOT KNOW HIS TRADE AND WAS NOT UP TO PAR WITH
    THE OTHER APPRENTICES. THE THREE OF THEM AGAIN DISCUSSED THIS SUBJECT
    AREA. (TR.17).

17. ON THIS SAME DAY, COUTURE DENIED POULIN'S GRIEVANCE, AND POULIN
    THEN FORWARDED IT TO STEP 2 WITH THE CONSENT OF THE UNION. (GENERAL
    COUNSEL'S EXH.2).

18. ON JUNE 14, 1979, POULIN WAS WORKING IN THE OFFICE WITH COUTURE.
    MR. STRAUB, AN ELECTRONICS FOREMAN, WAS PRESENT. COUTURE ADVISED
    POULIN THAT HE DID NOT WORK HARD AND OTHER EMPLOYEES DID NOT WANT TO
    WORK WITH HIM. COUTURE TOLD POULIN THAT HE HAD TRIED TO HELP POULIN
    BEFORE, BUT NOW THAT POULIN HAD GONE TO THE UNION, POULIN HAD HUNG
    HIMSELF, AND COUTURE WOULD NOT HELP HIM ANYMORE. /3/ (TR.17-18)

19. AFTER THE GRIEVANCE WAS FILED, WILLIAM AUDETTE, PRODUCTION
    SUPERINTENDENT AND POULIN'S THIRD-LINE SUPERVISOR, DISCUSSED THE
    GRIEVANCE WITH COUTURE AND J. A. KELLY, SERVICE SHOP GROUP
    SUPERINTENDENT AND POULIN'S FOURTH-LINE SUPERVISOR. (TR.148). ON JUNE
    15 AND 18, 1979, KELLY HELD A MEETING ON THE GRIEVANCE WITH POULIN, FRED
    W. LIGHTELL, A UNION STEWARD, AND EDMUND DESAUTEL, CHIEF STEWARD AND
    PRESIDENT OF THE UNION LOCAL. ON JUNE 27, 1979, KELLY DENIED THE
    GRIEVANCE AT THE STEP 2 LEVEL. HE STATED IN HIS WRITTEN DECISION THAT
    "MR. COUTURE HAS INFORMED ME THAT HE WILL PROVIDE YOU WITH COUNSELLING
    CONCERNING AREAS OF YOUR TRADE WHERE YOU REQUIRE ADDITIONAL TRAINING AND
    WILL ALSO ARRANGE FOR THAT TRAINING." POULIN, WITH THE CONSENT TO THE
    UNION, APPEALED THE DENIAL OF THE GRIEVANCE TO STEP 3 ON JUNE 28 AND 29,

20. (GENERAL COUNSEL'S EXH.2).

21. SOMETIME DURING THE PERIOD JUNE 15 TO 29, 1980, AUDETTE MET WITH
    ROLLINS, ROBIDA, COUTURE, AND STRAUB. AUDETTE ASKED THE OPINION OF THESE
    INDIVIDUALS AS TO WHETHER POULIN COULD DO THE WORK OF A THIRD YEAR
    APPRENTICE IN VIEW OF HIS PERFORMANCE ON COUTURE'S QUIZZES. ALL AGREED
    THAT HE WAS DEFICIENT IN HIS ABILITY TO DO THE WORK AND SHOULD BE GIVEN
    A TEST TO HELP CORRECT HIS DEFICIENCIES. (TR.151, 229-230). AUDETTE
    MADE THE DECISION TO GIVE POULIN A TEST. (TR.139).

22. ON JUNE 29, 1979 AUDETTE HELD A MEETING WITH POULIN AND FED W.
    LIGHTELL, SHOP STEWARD, TO INFORM THEM OF HIS DECISION TO ADMINISTER A
    TEST. THE MEETING WAS ALSO ATTENDED BY ROLLINS. AUDETTE EXPLAINED THAT
    THE TEST WOULD NOT BE SCORED, OR USED FOR ANY ADVERSE OR DISCIPLINARY
    ACTION, OR DISTRIBUTED TO ANYONE OTHER THAN ROLLINS AND POULIN, BUT
    WOULD BE USED SOLELY TO FIND OUT WHERE POULIN WAS DEFICIENT, SO
    RESPONDENT COULD PROVIDE HELP TO HIM. (TR.93, 139-140). POULIN STATED
    THAT HE FELT A TEST WAS UNFAIR; THAT COUTURE KNEW HIS WEAK AREAS AND
    COULD SO INFORM HIM. (TR.19). LIGHTELL REMARKED THAT THE TEST WAS NOT
    PROPER AT THAT TIME, BECAUSE POULIN HAD A GRIEVANCE PENDING AGAINST
    COUTURE. (TR.63-64, 141). AUDETTE RESPONDED THAT THE GRIEVANCE DID NOT
    MAKE ANY DIFFERENCE; THAT SINCE POULIN WAS CLOSE TO GRADUATION, HE DID
    NOT WANT TO SEND HIM OUT DOING ELECTRICAL WORK IF HE WAS DEFICIENT IN
    ABILITY; AND THAT IT WAS HIS PREROGATIVE TO USE ANY MEANS AT HIS
    DISPOSAL TO FIND OUT WHERE WEAKNESSES LAY AND PROVIDE ADEQUATE TRAINING.
    (TR.64, 94-95, 141). AUDETTE INFORMED POULIN THAT UNTIL HE FOUND OUT
    WHAT HIS DEFICIENCIES WERE THROUGH THE TEST PROCEDURE, AND CORRECTED
    THEM, HE WOULD NOT SIGN POULIN'S GRADUATION DIPLOMA. (TR.19, 63, 153).
    THE MEETING ENDED WITH AUDETTE INFORMING POULIN AND LIGHTELL THAT
    ROLLINS, COUTURE, ROBIDA, AND STRAUB WOULD PREPARE A TEST WHICH WOULD BE
    ADMINISTERED TO POULIN BY ROLLINS. (TR.19, 63-64, 96, 140).

23. ON JULY 10, 1979 A MEETING WAS HELD BETWEEN POULIN, LIGHTELL,
    EDMUND DESAUTEL, CHIEF STEWARD AND PRESIDENT OF THE LOCAL, ROLLINS, AND
    JOSEPH DERWICKI CONCERNING POULIN'S GRIEVANCE AT THE THIRD STEP. THE
    SUBJECT OF THE TEST ALSO CAME UP DURING THIS MEETING. THE PURPOSES,
    PROCEDURES, AND USES OF THE TEST WERE AGAIN EXPLAINED BY MANAGEMENT.
    EDMUND DESAUTEL, UNION PRESIDENT REPLIED THAT A SPECIAL TEST FOR ANY
    APPRENTICE THAT WAS NOT PART OF THE REGULAR APPRENTICE PROGRAM WAS
    TOTALLY UNACCEPTABLE TO THE UNION. (TR.99, 122, 234).

24. ON JULY 12, 1979 CAPTAIN H. L. YOUNG, USN, DENIED POULIN'S
    GRIEVANCE AT THE THIRD STEP. IN HIS WRITTEN DECISION CAPTAIN YOUNG
    FOUND THAT COUTURE DID NOT TREAT POULIN "DIFFERENTLY FROM OTHER
    PERSONNEL . . . . HOWEVER, IF A DIFFERENT SITUATION IS MADE PRESENT
    CONCERNING AN EMPLOYEE, THEN, THIS MAY WARRANT SPECIAL HANDLING BY THE
    SUPERVISOR." CAPTAIN YOUNG WENT ON TO SAY, IN PART, "YOU HAVE BEEN FOUND
    INCAPABLE OF PERFORMING SOME OF YOUR WORK EFFECTIVELY. APPROPRIATE
    MEANS WILL BE TAKEN TO DETERMINE IN WHAT PARTICULAR AREAS YOU NEED
    BRIEFING AND AN ATTEMPT WILL BE MADE TO PROVIDE REASONABLE TRAINING."
    (GENERAL COUNSEL'S EXH.2). THE GRIEVANCE WAS NOT PURSUED FURTHER.
    (TR.93).

25. ON JULY 19, 1979, ROLLINS CALLED POULIN TO HIS OFFICE FOR THE
    PURPOSE OF ADMINISTERING THE TEST. POULIN WAS ACCOMPANIED BY LIGHTELL.
    COUTURE WAS PRESENT. POULIN STATED THAT BEFORE HE WOULD DISCUSS TAKING
    THE TEST, HE WANTED SOME QUESTIONS ANSWERED WHICH LIGHTELL HAD WRITTEN
    OUT. THE QUESTIONS HAD BEEN ANSWERED BY MANAGEMENT PREVIOUSLY AT THE
    JUNE 29 AND JULY 10, 1979 MEETINGS, BUT POULIN WANTED THE ANSWERS IN
    WRITING. ROLLINS CHECKED WITH AUDETTE BY TELEPHONE. AUDETTE INSTRUCTED
    ROLLINS NOT TO ANSWER THE QUESTIONS IN WRITING. ROLLINS ADVISED POULIN
    AND LIGHTELL THAT THE QUESTIONS HAD BEEN PREVIOUSLY ANSWERED, THAT THEY
    WOULD NOT RECEIVE ANSWERS IN WRITING; THAT POULIN HAD SUFFICIENT TIME
    TO DISCUSS THIS WITH THE UNION; AND THAT HE VIEWED POULIN'S STATEMENT
    AS A REFUSAL TO TAKE THE TEST. (TR.45, 65, 98-100).

26. AFTER LIGHTELL LEFT THIS MEETING, COUTURE TOLD HIM THAT IS HE
    KEPT ON PRESSING THE SITUATION "IN THE VERY NEAR FUTURE I WOULD GET MINE
    AND IT WOULD PROBABLY BE WITHIN THE NEXT COUPLE OF WEEKS." /4/
    (TR.65-66).

27. LATER IN THE DAY OF JULY 19, 1980 ROLLINS SENT WORD TO POULIN BY
    COUTURE THAT POULIN SHOULD REPORT TO ROLLINS AT 7:30 A.M. THE NEXT DAY,
    AND THAT IT WOULD NOT BE NECESSARY FOR POULIN TO HAVE UNION
    REPRESENTATION. (TR.22, 100).

28. POULIN REPORTED TO ROLLINS AT 7:30 A.M. ON JULY 20, 1979
    ACCOMPANIED BY JOHN O'BRIEN, UNION PRESIDENT. O'BRIEN ASKED ROLLINS IF
    THE MEETING HAD ANYTHING TO DO WITH POULIN'S GRIEVANCE OR THE TEST THEY
    WERE TRYING TO REQUIRE THE EMPLOYEE TO TAKE. /5/ ROLLINS REPLIED, "NO,
    I WAS GOING TO GIVE MR. POULIN AN ASSIGNMENT AND I DIDN'T FEEL THAT IT
    REQUIRED UNION REPRESENTATION." O'BRIEN THEN LEFT. (TR.80, 101).

29. AS SOON AS O'BRIEN LEFT, ROLLINS INSTRUCTED POULIN THAT HIS WORK
    ASSIGNMENT WAS TO TAKE THE TEST. ROLLINS REITERATED THAT THE TEST WOULD
    NOT BE SCORED, OR USED FOR DISCIPLINARY ACTION, AND WAS ONLY TO
    DETERMINE WHERE HE NEEDED ADDITIONAL HELP. POULIN STATED HE WANTED IN
    WRITING WHAT HE AND LIGHTELL HAD REQUESTED THE PREVIOUS DAY. AFTER SOME
    BICKERING BACK AND FOURTH, POULIN REQUESTED TO SEE A UNION STEWARD.
    ROLLINS ADVISED HIM THAT HE ALREADY HAD SUFFICIENT TIME TO DISCUSS THE
    MATTER WITH THE UNION, AND IF HE REFUSED TO TAKE THE TEST HE WOULD BE
    PUT IN A NON-WORK STATUS AND SUCH REFUSAL ALSO MIGHT LEAD TO
    DISCIPLINARY ACTION. POULIN LEFT THE OFFICE AT WHICH TIME ROLLINS
    PLACED HIM IN A NON-PAY STATUS. (TR.22-24, 100-102; 125-126).

30. POULIN, LIGHTELL, O'BRIEN AND ANOTHER UNION OFFICIAL, KEN CLARK,
    THEN MET WITH JOHN KELLY, PRODUCTION SUPERINTENDENT, TO DISCUSS THE
    SITUATION. AT ONE POINT IN THE DISCUSSION, KELLY TOLD THE GROUP THAT
    "THEY (THE UNION REPRESENTATIVES) WERE GIVING HIM (POULIN) BAD ADVICE
    AND THAT HE WAS IN JEOPARDY OF LOSING HIS JOB AND SHOULD TAKE THE TEST."
    THE UNION REPRESENTATIVES RESPONDED THAT THEY WERE NOT ADVISING POULIN
    NOT TO TAKE THE TEST, THAT IT WAS UP TO HIM. (TR.68, 81, 209).

31. CLARK INFORMED KELLY THAT THEY WOULD TALK IT OVER. SHORTLY
    THEREAFTER, CLARK ADVISED KELLY THAT POULIN WOULD TAKE THE TEST. HE
    REQUESTED THAT POULIN BE ON LEAVE WITHOUT PAY FOR ONE HOUR. KELLY,
    HOWEVER, ISSUED INSTRUCTIONS THAT POULIN SHOULD BE PAID FOR THE ONE HOUR
    IF HE TOOK THE TEST. (TR.211-212).

32. POULIN TOOK THE TEST AND RECEIVED PAY FOR THE FULL DAY.
    (TR.25-26). AFTER THE TEST WAS GIVEN, POULIN WAS PROVIDED ASSISTANCE IN
    THE AREAS IN WHICH HE WAS DEFICIENT AND WAS SCHEDULED TO GRADUATE FROM
    THE APPRENTICE PROGRAM ON MARCH 31, 1979. (TR.102-103).

33. THE TEST WHICH POULIN WAS GIVEN WAS A TEST IN TRADE THEORY. IT
    HAD BEEN THE PRACTICE FOR TRADE THEORY TESTS TO BE COMPOSED BY THE SHOP
    INSTRUCTOR AND ADMINISTERED BY HIM TO THE APPRENTICES AS A GROUP.
    (TR.20, 64, 85, 90, 117, 128, 130-131, 150-151, 208-209, 229). AS NOTED
    ABOVE, THE TEST ADMINISTERED TO POULIN WAS MADE UP BY A COMBINATION OF
    SUPERVISORY PERSONNEL AND THE SHOP INSTRUCTOR. (TR.150). SUCH A TEST
    HAD NEVER BEFORE BEEN PREPARED FOR A SINGLE EMPLOYEE. (TR.114, 156,
    208, 229). POULIN WAS THE ONLY APPRENTICE AT HIS LEVEL OF
    APPRENTICESHIP TRAINING WHO WAS EXPERIENCING TRADE THEORY WORK
    PERFORMANCE PROBLEMS. (TR.114-116, 134-136).

34. THE UNION AND RESPONDENT HAVE NEGOTIATED FIVE COLLECTIVE
    BARGAINING AGREEMENTS. (TR.170). THE AGREEMENT IN EFFECT AT ALL TIMES
    MATERIAL HEREIN STATES IN ARTICLE 4, SECTION 1, IN PART, "IT IS AGREED
    THAT EMPLOYEES IN THE UNIT DEFINED HEREIN SHALL HAVE AND SHALL BE
    PROTECTED IN THE EXERCISE OF THE RIGHT TO FREELY AND WITHOUT FEAR OF
    PENALTY OR REPRISAL, TO JOIN AND ASSIST THE COUNCIL OR TO REFRAIN FROM
    SUCH ACTIVITY." GRIEVANCES MAY BE FILED OVER THE INTERPRETATION AND
    APPLICATION OF THE AGREEMENT, AND UNSETTLED GRIEVANCES MAY BE REFERRED
    TO ARBITRATION. (TR.169-171; RESPONDENT'S EXH.5, PP. 8, 136, 157).
    THE UNCONTRADICTED EVIDENCE IN THAT THE PROCEDURE HAS WORKED WELL FOR
    BOTH PARTIES. (TR. 171).

DISCUSSION, CONCLUSIONS AND RECOMMENDATIONS

DEFERRAL TO THE PARTIES' GRIEVANCE-ARBITRATION PROCEDURES

THE RESPONDENT CONTENDS THAT THE ISSUES OF THE ALLEGED STATEMENTS
INTERFERING WITH EMPLOYEE RIGHTS AND ALLEGED DISCRIMINATION BECAUSE OF
UNION ACTIVITIES ARE MATTERS INVOLVING VIOLATIONS OF ARTICLE 4 OF THE
COLLECTIVE BARGAINING AGREEMENT AND SHOULD, IN THE INTEREST OF EFFECTIVE
AND EFFICIENT GOVERNMENT OPERATIONS, BE DEFERRED TO THE METHOD AGREED
UPON BY THE PARTIES FOR THE SETTLEMENT OF SUCH DISPUTES.

THE ALLEGED VIOLATIONS OF SECTION 7116(A)(1) AND (2) OF THE STATUTE
AFFECT BASIC EMPLOYEE RIGHTS GUARANTEED BY SECTION 7102 OF THE STATUTE.
IN CASES INVOLVING ALLEGED UNFAIR LABOR PRACTICES OF SUCH BASIC EMPLOYEE
RIGHTS IT WOULD NOT BE APPROPRIATE TO DEFER TO CONTRACTUAL
GRIEVANCE-ARBITRATION MACHINERY EVEN THOUGH THE ALLEGED CONDUCT ARGUABLY
ALSO INVOLVES A CONTRACT VIOLATION. A SIMILAR RULE GOVERNS THE PRIVATE
SECTOR. SEE GENERAL AMERICAN TRANSPORTATION CORP., 228 NLRB 808, 94
LRRM 1483(1977).

ALLEGED STATEMENTS

THE DETERMINATION OF WHETHER STATEMENTS VIOLATE 5 U.S.C. 7116(A)(1)
BY INTERFERING WITH, RESTRAINING, OR COERCING ANY EMPLOYEE IN THE
EXERCISE OF HIS STATUTORY RIGHTS MUST TAKE INTO CAREFUL ACCOUNT THE
ENTIRE CIRCUMSTANCES SURROUNDING THE MAKING OF THE STATEMENTS. CF. U.S.
CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, 1 FLRA NO. 108(1979).

THE STATEMENTS IN ISSUE, AS FOUND ABOVE, ARE (1) COUTURE'S STATEMENT
TO POULIN, "WELL, NOW YOU'RE USING YOUR HEAD," WHEN POULIN REPLIED, "I
DON'T WANT TO CAUSE ANY TROUBLE," AFTER COUTURE HAD RESPONDED TO HIS
QUESTION AS TO THE NEED FOR UNION REPRESENTATION AT A MEETING WITH THE
COMMENT THAT IT WAS UP TO POULIN TO DECIDE; (2) COUTURE'S STATEMENT TO
POULIN THAT POULIN HAD HUNG HIMSELF BY GOING TO THE UNION, AND COUTURE
WOULD NOT HELP HIM ANYMORE; (3) COUTURE'S STATEMENT TO LIGHTELL THAT IF
HE KEPT ON PRESSING THE SITUATION, HE WOULD GET HIS; AND (4) KELLY'S
STATEMENT TO THE UNION REPRESENTATIVES AND POULIN THAT THE UNION
REPRESENTATIVES WERE GIVING HIM "BAD ADVICE" AND HE SHOULD TAKE THE
TEST.

COUTURE'S STATEMENT TO POULIN THAT POULIN HAD HUNG HIMSELF BY GOING
TO THE UNION, AND THAT COUTURE WOULD NOT HELP HIM ANYMORE VIOLATED
SECTION 7116(A)(1). THE RIGHT TO FILE AND PROCESS GRIEVANCES UNDER A
CONTRACTUAL GRIEVANCE PROCEDURE AND TO OTHERWISE SEEK AND ACCEPT UNION
ASSISTANCE AND REPRESENTATION CONCERNING CONDITIONS OF EMPLOYMENT FALLS
WITHIN THE AMBIT OF SECTION 7102 WHICH PROVIDES THAT EMPLOYEES HAVE "THE
RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION . . . FREELY AND
WITHOUT FEAR OF PENALTY OR REPRISAL . . . ." CF. U.S. DEPARTMENT OF THE
NAVY, PORTSMOUTH NAVAL SHIPYARD, SECURITY ADMINISTRATION, GREAT LAKES
PROGRAM SERVICE CENTER, 2 FLRA NO. 12(1979). COUTURE'S STATEMENTS WERE
COERCIVE AND INTIMIDATING AND INTERFERED WITH POULIN'S EXERCISE OF SUCH
RIGHTS.

COUTURE'S STATEMENT TO THE UNION STEWARD LIGHTELL THAT IF HE KEPT ON
PRESSING THE SITUATION, HE WOULD GET HIS, ALSO VIOLATED SECTION
7116(A)(1). SUCH STATEMENT INTERFERED WITH LIGHTELL'S RIGHT UNDER
SECTION 7102 TO ASSIST, ACT FOR, AND PRESENT THE VIEWS OF A LABOR
ORGANIZATION FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL.

COUTURE'S STATEMENT THAT POULIN WAS "USING HIS HEAD," AS FOUND ABOVE,
IS SHROUDED IN SOME AMBIGUITY. COUTURE'S AMBIGUOUS REMARK FOLLOWED AN
EQUALLY AMBIGUOUS REMARK BY POULIN THAT HE DID NOT WANT TO "CAUSE ANY
TROUBLE" AFTER THE SUBJECT OF UNION REPRESENTATION HAD BEEN INITIATED BY
POULIN. UNDER ALL THE CIRCUMSTANCES, I CONCLUDE THAT A PREPONDERANCE OF
THE EVIDENCE DOES NOT SUPPORT A VIOLATION OF SECTION 7116(A)(1) IN THIS
INSTANCE.

I CONCLUDE THAT KELLY'S STATEMENT TO UNION REPRESENTATIVES AND POULIN
THAT THE UNION REPRESENTATIVES WERE GIVEN POULIN "BAD ADVICE" ALSO DID
NOT VIOLATE SECTION 7116(A)(1) UNDER THE CIRCUMSTANCES. THE MERITS OF
THE TEST HAD BEEN DISCUSSED ON SEVERAL PRIOR OCCASIONS, AND THE
DIFFERING VIEWS CONCERNING THE TEST WERE AGAIN FREELY AND OPENLY
DISCUSSED BY MANAGEMENT, POULIN, AND HIS TEST WERE AGAIN FREELY AND
OPENLY DISCUSSED BY MANAGEMENT, POULIN, AND HIS UNION REPRESENTATIVES AT
THIS MEETING. KELLY'S REMARK, CONSIDERED IN THE CONTEXT OF THE
DISCUSSION, DID NOT REFLECT A DISPARAGEMENT OF THE UNION. HE WAS
STRONGLY OF THE VIEW THAT POULIN SHOULD TAKE THE TEST. HIS COMMENTS CAN
BE READ TO SUGGEST THAT HE WOULD CONSIDER ANY ADVICE TO THE CONTRARY TO
BE "BAD ADVICE." THE UNION REPRESENTATIVES IMMEDIATELY ASSERTED THAT
THEY WERE NOT ADVISING POULIN ONE WAY OR THE OTHER. THUS, ANY
IMPRESSION THAT THE UNION WAS GIVING POULIN WHAT KELLY CONSIDERED TO BE
"BAD ADVICE" WAS IMMEDIATELY CORRECTED. THE EMPLOYEE COULD NOT
REASONABLY CONCLUDE FROM THE TOTAL DISCUSSION, INCLUDING THE ISOLATED
REMARK, THAT MANAGEMENT WAS DISPARAGING THE UNION, OR VIEWED HIS
EXCLUSIVE REPRESENTATIVE WITH DISDAIN, SO AS TO UNDERMINE THE EMPLOYEE'S
CONFIDENCE IN THE UNION AND CHILL HIS ASSERTION OF EMPLOYEE RIGHTS.
COMPARE U.S. CUSTOMS SERVICE, REGION IV, MIAMI, FLORIDA, 1 FLRA NO.
108(1979). A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT THE ALLEGED
VIOLATION.

DISCRIMINATION BECAUSE OF TEST

THE COMPLAINT ALLEGES THAT RESPONDENT, BY ITS AGENTS AUDETTE AND
ROLLINS, VIOLATED SECTION 7116(A)(1) AND (2) BY REQUIRING POULIN TO TAKE
A TEST BECAUSE POULIN HAD SOUGHT REPRESENTATION FROM THE UNION AND HAD
FILED A GRIEVANCE UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
IF MANAGEMENT'S ACTION IN GIVING POULIN A TEST WAS BASED IN WHOLE OR IN
PART BECAUSE HE SOUGHT REPRESENTATION FROM THE UNION, OR FILED A
GRIEVANCE, A VIOLATION OF SECTION 7116(A)(2), AND DERIVATIVELY OF
SECTION 7116(A)(1), WOULD BE ESTABLISHED. CF. DIRECTORATE OF SUPPLY
OPERATIONS, DEFENSE LOGISTICS AGENCY, HEADQUARTERS, DEFENSE LOGISTICS
AGENCY, 2 FLRA NO. 118 (1980).

A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT A VIOLATION IN THIS
REGARD. THE CHAIN OF EVENTS LEADING TO THE TEST BEGAN BEFORE MR. POULIN
BECAME A UNION MEMBER OR FILED THE GRIEVANCE. MR. POULIN FAILED TO PASS
SIMPLE QUIZZES IN THE MONTHS PRECEDING THE TEST. WHILE ACKNOWLEDGING
THAT HE REQUIRED ADDITIONAL HELP AND STUDY, HE FAILED TO IMPROVE DESPITE
PERSONAL INSTRUCTION, ASSIGNMENT TO WORK WITH BETTER JOURNEYMEN, AND
TIME TO STUDY ON THE JOB. TWO WEEKS BEFORE HE FILED THE GRIEVANCE HE
WAS WARNED THAT HE WAS IN DANGER OF RECEIVING A FAILING GRADE, BUT WOULD
BE ADVISED IN WHAT AREAS HE NEEDED TO IMPROVE. THE IDEA OF A TEST AS A
MEANS OF IDENTIFYING HIS DEFICIENCIES EMANATED FROM PRODUCTION
SUPERINTENDENT AUDETTE, WITH WHOM POULIN HAD NO DIFFICULTIES, AFTER
AUDETTE'S SOUGHT THE OPINION OF THE OTHER SUPERVISORS AND THE SHOP
INSTRUCTOR. COUTURE, WHO HAS BEEN FOUND TO HAVE MADE IMPROPER THREATS
TO POULIN, DID PARTICIPATE IN THE DISCUSSION LEADING TO THE DECISION,
HOWEVER, POULIN ADMITS THAT COUTURE KNEW HIS WEAK AREAS. WHILE THE
DECISION TO GIVE POULIN A TEST WAS MADE TWO WEEKS AFTER POULIN FILED THE
GRIEVANCE, I CANNOT ON THE BASIS OF THE AVAILABLE EVIDENCE, INFER THAT
THE TEST WAS ILLEGALLY MOTIVATED BECAUSE ON THE TIMING OF THE ACTION, OR
CONCLUDE, IN VIEW OF THE TIMING AND COUTURE'S STATEMENTS, THAT IT WAS,
IN PART, A PRETEXT TO DISGUISE AN IMPROPER MOTIVE. RATHER, AS STATED
ABOVE, THE EVIDENCE POINTS TO EXACTLY THE OPPOSITE CONCLUSION: THE TEST
WAS THE CULMINATION OF A LONG-STANDING EFFORT TO CORRECT MR. POULIN'S
WORK DEFICIENCIES RATHER THAN BEING MOTIVATED BY REASONS VIOLATIVE OF
THE STATUTE. WHILE THE STATUTE PROTECTS EMPLOYEES FROM DISCRIMINATION
BECAUSE OF THE EXERCISE OF PROTECTED ACTIVITIES, THE EXERCISE OF SUCH
ACTIVITIES DOES NOT CLOAK AN INDIVIDUAL WITH IMMUNITY FROM OTHERWISE
LEGITIMATE AND JUSTIFIED MANAGEMENT ACTIONS. CF. DEPARTMENT OF THE
NAVY, HUNTERS POINT NAVAL SHIPYARD, A/SLMR NO. 373, 4 A/SLMR 225(1974).

THE GENERAL COUNSEL'S ALLEGATION THAT POULIN WAS INITIALLY PLACED ON
ANNUAL LEAVE BECAUSE HE REQUESTED TO SEE HIS UNION REPRESENTATIVE IS NOT
SUPPORTED BY THE RECORD. THE EVIDENCE DEMONSTRATES THAT POULIN WAS
INITIALLY PLACED ON ANNUAL LEAVE BECAUSE HE INITIALLY REFUSED TO TAKE
THE TEST WHICH HAD BEEN ASSIGNED TO HIM. THE LEAVE WAS RESTORED THE
SAME DAY, AFTER HE HAD DECIDED TO TAKE THE TEST.

ALLEGED UNILATERAL CHANGE OF CONDITIONS OF EMPLOYMENT

THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND
(5) BY UNILATERALLY CHANGING CONDITIONS OF EMPLOYMENT BY IMPLEMENTING A
NEW TESTING PROCEDURE IN THE ELECTRICIANS APPRENTICESHIP PROGRAM WITHOUT
FURNISHING THE UNION WITH NOTICE AND/OR AN OPPORTUNITY TO BARGAIN
CONCERNING SUCH CHANGES OR THE IMPACT AND IMPLEMENTATION OF SUCH
CHANGES.

A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT THE ALLEGED
VIOLATION. THE RECORD SHOWS THAT SHOP STEWARD LIGHTELL WAS INFORMED OF
THE DECISION TO GIVE THE TEST AT A MEETING HELD ON JUNE 29, 1979 AND
THAT UNION PRESIDENT DESAUTEL AND STEWARD LIGHTELL WERE AGAIN INFORMED
OF THE TEST AT A MEETING ON JULY 10, 1979. THE TEST WAS NOT GIVEN UNTIL
JULY 20, 1979. DURING THIS PERIOD, THE UNION MADE NO REQUEST TO
NEGOTIATE CONCERNING THE DECISION, OR ON ITS IMPACT AND IMPLEMENTATION.
RESPONDENT'S REFUSAL TO GIVE WRITTEN ANSWERS TO QUESTIONS POSED BY THE
UNION CONCERNING THE TEST, AFTER HAVING PREVIOUSLY PROVIDED THE
INFORMATION ORALLY, WAS NOT TANTAMOUNT TO A REFUSAL TO NEGOTIATE ON THE
TESTING PROCEDURE.

RESPONDENT NOTIFIED THE UNION OF THE PROPOSED TEST WITH SUFFICIENT
SPECIFICITY TO ENABLE IT TO REQUEST AND ENGAGE IN MEANINGFUL
NEGOTIATIONS PRIOR TO EFFECTUATION OF THE DECISION. SINCE THE UNION DID
NOT REQUEST SUCH BARGAINING, RESPONDENT DID NOT VIOLATE SECTION
7116(A)(1) AND (5) OF THE STATUTE, AS ALLEGED.

THE JULY 20, 1979 MEETING

THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTION 7116(A)(1),
(5) AND (8) BY FAILING AND REFUSING TO GIVE THE UNION AN OPPORTUNITY TO
BE REPRESENTED AT A FORMAL DISCUSSION BETWEEN RESPONDENT'S AGENT NORMAN
ROLLINS AND MARK POULIN CONCERNING A GRIEVANCE, PERSONNEL POLICIES AND
PRACTICES, OR OTHER GENERAL CONDITIONS OF EMPLOYMENT, AND BY FAILING OR
REFUSING TO GRANT THE REQUEST OF MARK POULIN TO BE REPRESENTED BY THE
UNION DURING THE MEETING.

SECTION 7114(A)(2) OF THE STATUTE PROVIDES:

(2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
SHALL BE GIVEN THE

OPPORTUNITY TO BE REPRESENTED AT --

(A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
AGENCY AND ONE OR MORE

EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
GRIEVANCE OR ANY PERSONNEL

POLICY OR PRACTICES OR OTHER GENERAL CONDITIONS OF EMPLOYMENT . . .

THE MEETING BETWEEN ROLLINS AND POULIN ON JULY 20, 1979 WAS NOT A
"FORMAL DISCUSSION" WITHIN THE MEANING OF SECTION 7115(A)(2)(A). IT WAS
HELD SIMPLY TO ADMINISTER A TEST TO POULIN. THE DECISION TO ADMINISTER
THIS TEST HAD BEEN PREVIOUSLY MADE IN LATE JUNE 1979 AND DISCUSSED WITH
UNION REPRESENTATIVES PREVIOUSLY ON JUNE 29, 1979, JULY 10, 1979, AND
JULY 19, 1979.

THE MEETING HELD ON JULY 20, 1979 FOR THE PURPOSE OF ADMINISTERING A
TEST WAS ALSO NOT AN "EXAMINATION . . . IN CONNECTION WITH AN
INVESTIGATION . . . " WITHIN THE MEANING OF SECTION 7114(A)(2)(B). CF.
INTERNAL REVENUE SERVICE, DETROIT, MICHIGAN, CASE NO. 5-CA-332 (DECISION
OF JUDGE WILLIAM B. DEVANEY, DATED AUGUST 8, 1980). MOREOVER, EVEN
ASSUMING THAT IT WAS, ALL OBJECTIVE CONSIDERATIONS LEAD TO THE
CONCLUSION THAT POULIN COULD NOT REASONABLY BELIEVE THAT THE TEST "MAY
RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE" WITHIN THE MEANING
OF SECTION 7114(A)(2)(B)(I). INTERNAL REVENUE SERVICE, WASHINGTON, D.C.
AND INTERNAL REVENUE SERVICE, HARTFORD DISTRICT OFFICE, 4 FLRA NO.
37(1980). THE PURPOSE OF THE TEST HAD BEEN EXPLAINED AT MEETINGS ON
JUNE 29, 1979, JULY 10, 1979, AND BEFORE THE TEST WAS ASSIGNED ON JULY
20, 1979. NOTHING IN THE RECORD SUGGESTS THAT THE EXPLANATIONS GIVEN
WERE INACCURATE, INCOMPLETE, OR MISLEADING, OR COULD HAVE CAUSED POULIN
TO REASONABLY BELIEVE THAT THE TEST WAS NOT FOR THE PURPOSE OF FINDING
HIS DEFICIENCIES, BUT TO DISCIPLINE HIM. NO "EXAMINATION . . .IN
CONNECTION WITH AN INVESTIGATION" WAS CONDUCTED AFTER POULIN REFUSED TO
TAKE THE TEST. THERE IS NO EVIDENCE THAT QUESTIONS OF AN INVESTIGATIVE
NATURE WERE ASKED.

ALTHOUGH NO VIOLATION OF THE STATUTE HAS BEEN FOUND WITH REGARD TO
THE JULY 20, 1979 MEETING, AS WAS ALLEGED BY THE GENERAL COUNSEL,
RESPONDENT'S CONDUCT, AS FOUND ABOVE, IN ERRONEOUSLY ADVISING THE UNION
PRESIDENT, IN EFFECT, THAT THE MEETING HAD NOTHING TO DO WITH THE TEST,
IS NOT CONDONED.

BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:

ORDER

PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH,
NEW HAMPSHIRE, SHALL:

1. CEASE AND DESIST FROM:

(A) DISCOURAGING, BY IMPLIED THREATS OR OTHER MEANS, MARK POULIN OR
ANY OTHER EMPLOYEE FROM

EXERCISING THE RIGHTS ACCORDED THEM BY THE STATUTE TO FILE OR PROCESS
GRIEVANCES UNDER THE

CONTRACTUAL GRIEVANCE PROCEDURE.

(B) DISCOURAGING, BY IMPLIED THREATS OR OTHER MEANS, FRED W.
LIGHTELL OR ANY OTHER EMPLOYEE

FROM EXERCISING THE RIGHTS ACCORDED THEM BY THE STATUTE TO ACT AS A
REPRESENTATIVE OF A LABOR

ORGANIZATION AND, IN THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR
ORGANIZATION TO HEADS OF

AGENCIES AND OTHER APPROPRIATE AUTHORITIES.

(C) IN ANY LIKE OR RELATED MATTER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES

IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.

2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:

(A) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE

FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL
BE SIGNED BY THE COMMANDER

OF THE PORTSMOUTH NAVAL SHIPYARD AND SHALL BE POSTED AND MAINTAINED
BY HIM FOR 60 CONSECUTIVE

DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACED WHERE

NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE
REASONABLE STEPS TO

INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.

(B) 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.

IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT IN CASE NOS.
1-CA-127, 1-CA-128, AND 1-CA-129 IN ALL OTHER RESPECTS, BE, AND HEREBY
IS, DISMISSED.

GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE

DATED: OCTOBER 31, 1980
WASHINGTON, D.C.

APPENDIX 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 DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
MARK POULIN OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS ACCORDED
THEM BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE TO FILE
OR PROCESS GRIEVANCES UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.

WE WILL NOT DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
FRED W. LIGHTELL OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS
ACCORDED THEM BY THE STATUTE TO ACT AS A REPRESENTATIVE OF A LABOR
ORGANIZATION AND, IN THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR
ORGANIZATION TO HEADS OF AGENCIES AND OTHER APPROPRIATE AUTHORITIES.

WE WILL NOT IN ANY LIKE TO RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.

(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 QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
441 STUART STREET, 9TH FLOOR, BOSTON, MASSACHUSETTS 02116, AND WHOSE
TELEPHONE NUMBER IS: (617) 223-0920.

--------------- FOOTNOTES: ---------------

/1/ COUTURE AND POULIN HAD A DISAGREEMENT OVER POULIN'S BEING ALLOWED
TO LEAVE WORK FIVE MINUTES EARLY UNDER AN EARLY RELEASE POLICY FOR
INJURED WORKERS. COUTURE WOULD NOT RELEASE POULIN, SO POULIN SECURED
PERMISSION FOR EARLY RELEASE FROM THE DISPENSARY. (TR.36).

/2/ COUTURE DENIED MAKING SUCH A STATEMENT. FROM A CONSIDERATION OF
THE RECORD AS A WHOLE, I CREDIT POULIN'S TESTIMONY IN THIS INSTANCE.
COUTURE'S OWN TESTIMONY ALSO REFLECTS THAT HE HAD A TENDENCY TO MAKE
ABRUPT, JUDGMENTAL STATEMENTS. THE TESTIMONY OF ROBIDA AND LIGHTELL
SUPPORTS THIS VIEW.

/3/ COUTURE DENIES MAKING SUCH A STATEMENT. I CREDIT POULIN'S
VERSION.

/4/ COUTURE DENIED MAKING THIS STATEMENT. HE TESTIFIED THAT LIGHTELL
TOLD HIM THE REASON HE WAS SO GOOD AS A STEWARD WAS BECAUSE OF A COURSE
HE HAD TAKEN IN COLLEGE. COUTURE CLAIMS HE REPLIED, "YOU MUST HAVE BEEN
ASLEEP WHEN THE COURSE WAS GOING ON, BECAUSE I DON'T SEE THAT YOU'VE
DONE THAT GOOD UP THERE." COUTURE CLAIMS HE THEN STARTED LAUGHING, AT
WHICH TIME LIGHTELL REMARKED, "WELL, YOU CAN GO AHEAD AND LAUGH NOW,
RUDY, BUT IN 2 OR 3 WEEKS FROM NOW, I THINK I'LL BE DOING THE LAUGHING."
(TR.186). I CREDIT LIGHTELL'S VERSION AS MORE CONSISTENT WITH THE
FACTS, CONSIDERING THE TESTIMONY OF BOTH WITNESSES AND THE RECORD AS A
WHOLE.

/5/ ROLLINS TESTIFIED THAT O'BRIEN DID NOT INQUIRE ABOUT THE TEST,
BUT MERELY INQUIRED WHETHER "THERE WAS GOING TO BE A DISCUSSION RELATIVE
TO A GRIEVANCE OR SOMETHING TO THAT EFFECT." (TR.101). I CREDIT
O'BRIEN'S VERSION.