U.S. Department of the Navy, Portsmouth Naval Shipyard (Respondent) and International Federation of Professional and Technical Engineers, AFL-CIO (Complainant)

 



[ v03 p189 ]
03:0189(27)CA
The decision of the Authority follows:


 3 FLRA No. 27
 
 U.S. DEPARTMENT OF THE NAVY
 PORTSMOUTH NAVAL SHIPYARD
 Respondent
 
 and
 
 INTERNATIONAL FEDERATION OF PROFESSIONAL
 AND TECHNICAL ENGINEERS, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 31-11732(CA)
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD
 ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTION AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER.  NO EXCEPTIONS WERE FILED.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (45 F.R. 3482, JANUARY 17, 1980).  THE AUTHORITY CONTINUES TO BE
 RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
 SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE
 HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE U.S. DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD,
 PORTSMOUTH, NEW HAMPSHIRE, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DISCOURAGING, BY IMPLIED THREATS OR OTHER MEANS, KATHERINE
 DOWALIBY OR ANY OTHER
 
    EMPLOYEE FROM EXERCISING THE RIGHTS ACCORDED THEM BY THE ORDER TO
 FILE OR PROCESS GRIEVANCES
 
    UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS
 AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) POST AT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
 COPIES OF THE
 
    ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
 FEDERAL LABOR RELATIONS
 
    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 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) 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.
 
    ISSUED, WASHINGTON, D.C., MAY 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 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 DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
 KATHERINE DOWALIBY OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS
 ACCORDED THEM BY EXECUTIVE ORDER 11491, AS AMENDED, TO FILE OR PROCESS
 GRIEVANCES UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
 EXECUTIVE ORDER 11491, AS AMENDED.
 
   .          .          .          .
 
 
                           (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 ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 WHOSE ADDRESS IS:  441 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS
 02116, AND WHOSE TELEPHONE NUMBER IS:  (617)223-0920.
 
    NOVEMBER 2, 1979
 
    MEMORANDUM TO:  THE FEDERAL LABOR RELATIONS AUTHORITY
 
    FROM:  BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    PURSUANT TO 29 C.F.R. 203.23(B) AS RECENTLY AMENDED BY 5 C.F.R.
 2400.2 (FEDERAL REGISTER, VOL. 44, NO. 1, TUESDAY, JANUARY 2, 1979), I
 AM HEREBY TRANSFERRING THE ABOVE CASE TO THE AUTHORITY.  ENCLOSED ARE
 COPIES OF MY DECISION AND THE TRANSMITTAL FORM SENT TO THE PARTIES.  I
 AM TRANSMITTING DIRECTLY TO THE AUTHORITY THE ORIGINAL AND ADDITIONAL
 COPIES OF MY DECISION AS WELL AS THE TRANSCRIPT, EXHIBITS, BRIEFS,
 COPIES OF THE SERVICE SHEET AND TRANSMITTAL FORM.
 
    ENCLOSURES
 
                NOTICE OF TRANSMITTAL OF DECISION AND ORDER
 
    THE ABOVE-ENTITLED CASE HAVING BEEN HEARD BEFORE THE UNDERSIGNED
 ADMINISTRATIVE LAW JUDGE PURSUANT TO THE REGULATIONS OF THE ASSISTANT
 SECRETARY FOR LABOR-MANAGEMENT RELATIONS, AND THE UNDERSIGNED HAVING
 PREPARED HIS DECISION AND ORDER, A COPY OF WHICH IS ATTACHED HERETO, AND
 HAVING TRANSFERRED THE CASE TO FEDERAL LABOR RELATIONS AUTHORITY,
 PURSUANT TO 29 C.F.R. 203.23(B), AS RECENTLY AMENDED BY 5 C.F.R. 2400.2
 (FEDERAL REGISTER, VOL. 44, NO. 1, TUESDAY, JANUARY 2, 1979).
 
    PLEASE BE ADVISED THAT IF ANY PARTY WISHES TO FILE EXCEPTIONS TO THE
 ATTACHED DECISION AND ORDER PURSUANT TO SECTION 203.23(C) OF THE
 REGULATIONS, SUCH EXCEPTIONS MUST BE RECEIVED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY IN WASHINGTON, D.C., ON OR BEFORE NOVEMBER 19, 1979.
 
    EXCEPTIONS SHOULD BE ADDRESSED TO THE FEDERAL LABOR RELATIONS
 AUTHORITY, 1900 E STREET, N.W., ROOM 7469, WASHINGTON, D.C.  20424.
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 2, 1979
 
    WASHINGTON, D.C.
 
    A. GENE NIRO, ESQUIRE
 
    AREA REPRESENTATIVE
 
    NAVAL CIVILIAN PERSONNEL COMMAND
 
    NORTHERN FIELD DIVISION
 
    666 SUMMER STREET
 
    BUILDING 113
 
    BOSTON, MASSACHUSETTS
 
                            FOR THE RESPONDENT
 
    JAMES LYONS
 
    DIRECTOR OF PUBLIC EMPLOYEE AFFAIRS
 
    INTERNATIONAL FEDERATION OF PROFESSIONAL
 
    AND TECHNICAL ENGINEERS, AFL-CIO
 
    1126-- 16TH STREET, N.W.
 
    SUITE 111
 
    WASHINGTON, D.C.  20036
 
                            FOR THE COMPLAINANT
 
    BEFORE:  BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON JUNE 14, 1978, UNDER
 EXECUTIVE ORDER 11491, AS AMENDED, BY THE INTERNATIONAL FEDERATION OF
 PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO, (HEREINAFTER CALLED THE
 UNION OR COMPLAINANT), AGAINST THE U.S.  DEPARTMENT OF THE NAVY,
 PORTSMOUTH NAVAL SHIPYARD, (HEREINAFTER CALLED THE RESPONDENT OR
 ACTIVITY), A "SECOND NOTICE OF HEARING ON COMPLAINT" WAS ISSUED BY THE
 REGIONAL DIRECTOR FOR THE BOSTON, MASSACHUSETTS REGION OF THE FEDERAL
 LABOR RELATIONS AUTHORITY ON AUGUST 13, 1979.
 
    THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
 SECTION 19(A)(1) OF EXECUTIVE ORDER 11491, AS AMENDED, BY VIRTUE OF ITS
 ACTIONS IN ATTEMPTING TO DISSUADE AN EMPLOYEE FROM PURSUING A GRIEVANCE
 THROUGH ARBITRATION.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON SEPTEMBER 18, 1979, IN
 BOSTON, MASSACHUSETTS.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, ADDUCE EVIDENCE AND EXAMINE AND CROSS-EXAMINE WITNESSES.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND ORDER.
 
                             FINDINGS OF FACT
 
    THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF SOME 1000 NONSUPERVISORY
 EMPLOYEES, INCLUDING A NUMBER OF DATA PROCESSORS, LOCATED AT THE
 PORTSMOUTH NAVAL SHIPYARD.  THE UNION AND THE RESPONDENT ARE PARTIES TO
 A COLLECTIVE BARGAINING AGREEMENT WHICH CONTAINS A TWO STEP GRIEVANCE
 PROCEDURE CULMINATING IN ARBITRATION.
 
    PRIOR TO THE SPRING OF 1977, THE DATA PROCESSING PERSONNEL, WHICH
 HELD THE CLASSIFICATION 115-12 (DATA PROCESSING), CUSTOMARILY WORKED
 ONLY THE MORNING (7:30 A.M.-4:00 P.M.) AND AFTERNOON (3:45 P.M.-12:15
 A.M.) SHIFTS.
 
    IN THE SPRING OF 1977, KATHERINE DOWALIBY, CLASSIFIED GS-5 CODE
 115-12 (DATA PROCESSING), WAS INFORMED THAT RESPONDENT INTENDED TO
 ASSIGN HER AS A "TEMPORARY APPOINTMENT" TO THE MIDNIGHT SHIFT.  SHE
 IMMEDIATELY INFORMED HER SUPERVISOR GORDON WEEKS THAT SHE COULD NOT
 EMOTIONALLY AND PHYSICALLY HANDLE THE MIDNIGHT SHIFT AND THAT SHE WAS
 GOING TO HAVE TO RESIGN.  MR. WEEKS INQUIRED IF SHE WOULD BE WILLING TO
 WORK THE SECOND SHIFT IF HE COULD SECURE A VOLUNTEER FOR THE NIGHT
 SHIFT.  ALTHOUGH SHE HAD BEEN WORKING THE FIRST SHIFT, MS. DOWALIBY
 RESPONDED IN THE AFFIRMATIVE.
 
    DURING THE SUMMER OF 1977, MS. DOWALIBY DISCUSSED THE POSSIBILITY OF
 FILING A GRIEVANCE OVER THE NEW MIDNIGHT SHIFT ASSIGNMENT WITH BOTH HER
 FELLOW DATA PROCESSORS AND HER UNION STEWARD, RUSTY CALLAHAN.
 THEREAFTER, MS. DOWALIBY ALONG WITH A NUMBER OF HER FELLOW EMPLOYEES IN
 CLASSIFICATION 115-12 (DATA PROCESSING) INDIVIDUALLY SIGNED AND FILED
 GRIEVANCES CONCERNING ROTATING CODE 115 EMPLOYEES TO THE MIDNIGHT SHIFT
 ASSIGNMENT.  THE GRIEVANCES ALLEGED THAT THE CONTRACT DID NOT GIVE
 RESPONDENT THE RIGHT TO ASSIGN EMPLOYEES TO A SHIFT BY ROTATION.  MS.
 DOWALIBY'S GRIEVANCE, WHICH IS DATED SEPTEMBER 28, 1977, TOOK THE
 POSITION THAT ROTATION OF CODE 115 EMPLOYEES WAS IN VIOLATION OF THE
 CONTRACT AND REQUESTED AS A REMEDY THAT ALL DATA PROCESSORS REMAIN ON
 THE MORNING SHIFT (7:30 A.M.-4:00 P.M.).
 
    IN SEPTEMBER OF 1977, MS. DOWALIBY APPLIED FOR AND RECEIVED A
 TRANSFER FROM CODE 115 TO CODE 105.  THIS TRANSFER REMOVED HER FROM THE
 DANGER OF BEING INVOLUNTARILY ASSIGNED TO THE NEWLY CREATED CODE 115
 POSITION ON THE MIDNIGHT SHIFT.
 
    SUBSEQUENTLY, ON OR ABOUT OCTOBER 18, 1977, UNION AND MANAGEMENT
 REPRESENTATIVES MET FOR PURPOSES OF DISCUSSING THE GRIEVANCES CONCERNING
 THE MIDNIGHT SHIFT ASSIGNMENT.  INASMUCH AS MS. DOWALIBY HAD BEEN
 TRANSFERRED TO CODE 105, HER UNION STEWARD INFORMED HER THAT HER
 PRESENCE AT THE MEETING WAS NOT REQUIRED.  THE UNION STEWARD, IN
 RESPONSE TO AN INQUIRY FROM MR.  MORTON PAGE, DIRECTOR OF MANAGEMENT
 ENGINEERING AND DATA PROCESSING, WHO WAS REPRESENTING MANAGEMENT OF THE
 OCTOBER 18TH MEETING, INFORMED MR. PAGE OF THE REASONS FOR THE ABSENCE
 OF MS.  DOWALIBY FROM THE MEETING.  ACCORDING TO THE UNCONTRADICTED
 TESTIMONY OF MR. PAGE, DURING THE COURSE OF THE MEETING HE POINTED OUT
 THAT SHOULD BE ARBITRATOR FIND MERIT IN THE GRIEVANCES RESPONDENT MIGHT
 WELL BE FORCED TO DISCONTINUE ITS POLICY OF ASSIGNING DATA PROCESSORS ON
 A ROTATIONAL BASIS AND INSTEAD ASSIGN A SINGLE DATA PROCESSOR TO THE
 MIDNIGHT SHIFT ON A PERMANENT BASIS.  FOLLOWING THE MEETING, THE UNION,
 WHICH WAS DISSATISFIED WITH RESPONDENT'S POSITION, ELECTED TO PROCESS
 THE GRIEVANCES TO ARBITRATION.
 
    IN EARLY NOVEMBER OF 1977, MS. DOWALIBY TRANSFERRED BACK TO CODE OR
 CLASSIFICATION 115.  INASMUCH AS SHE THEN BECAME SUBJECT TO ASSIGNMENT
 TO THE MIDNIGHT SHIFT, WHICH WAS THEN BEING FILLED ON A ROTATING BASIS,
 SHE REQUESTED THE UNION TO REINSTATE HER GRIEVANCE AND INCLUDE IT IN THE
 PENDING ARBITRATION PROCEEDING.  PURSUANT TO HER REQUEST, THE UNION SENT
 A LETTER DATED NOVEMBER 23, 1977, TO MR. D. HOLSTER, DIRECTOR OF
 INDUSTRIAL RELATIONS, WHEREIN IT WAS REQUESTED THAT HER GRIEVANCE BE
 REINSTATED AND SUBMITTED TO ARBITRATION ALONG WITH THE GRIEVANCES OF HER
 FELLOW EMPLOYEES IN CODE 115.
 
    ON DECEMBER 6, 1977, AT ABOUT 7:50 A.M. MS. DOWALIBY WAS TOLD BY MS.
 MARLENE YOUNG, ADMINISTRATIVE ASSISTANT OF MR. PAGE, THAT MR. PAGE WAS
 ON THE TELEPHONE AND WANTED TO TALK TO HER.  UPON PICKING UP THE
 TELEPHONE, MS. DOWALIBY WAS TOLD BY MR. PAGE THAT HE HAD JUST BEEN
 INFORMED THAT SHE HAD REFILED HER GRIEVANCE ABOUT THE MIDNIGHT SHIFT.
 MR. PAGE THEN PROCEEDED TO EXPLAIN TO MS. DOWALIBY THAT RESPONDENT COULD
 SETTLE THE GRIEVANCES BY MERELY ABANDONING THE ROTATIONAL SYSTEM AND
 ASSIGNING ONE PERSON ON A PERMANENT BASIS TO THE MIDNIGHT SHIFT.
 INASMUCH AS SHE WAS THE JUNIOR EMPLOYEE IN CODE 115, SHE WOULD MOST
 LIKELY GET THE PERMANENT ASSIGNMENT.  MS. DOWALIBY REPLIED THAT EMPLOYEE
 HELEN ROGERS WAS LEAVING RESPONDENT'S EMPLOY IN THE NEAR FUTURE AND THAT
 MS. ROGER'S REPLACEMENT WOULD THEN BE THE JUNIOR EMPLOYEE IN CODE 115.
 THE CONVERSATION ENDED WHEN MS. DOWALIBY DECLINED THE OPPORTUNITY TO
 THINK THE MATTER OVER AND MADE IT CLEAR THAT SHE DID NOT WANT TO
 WITHDRAW HER GRIEVANCE.
 
    ACCORDING TO MR. PAGE, THE REASON HE TELEPHONED MS. DOWALIBY WAS TO
 MAKE SURE THAT SHE WAS ACQUAINTED WITH THE DISCUSSIONS WHICH TOOK PLACE
 AT THE OCTOBER 18TH MEETING WITH RESPECT TO THE POSSIBLE CONSEQUENCES OF
 AN ARBITRATION AWARD IN FAVOR OF THE GRIEVANTS.  NAMELY, THAT THE MOST
 JUNIOR EMPLOYEE MIGHT BE ASSIGNED TO THE MIDNIGHT SHIFT ON A PERMANENT
 BASIS.  MR. PAGE FELT THAT ROTATION WAS THE BEST SYSTEM AND DID NOT WANT
 TO BE FORCED TO PUT ANYONE ON THE MIDNIGHT SHIFT ON A PERMANENT BASIS.
 IT WAS FOR THIS REASON THAT HE HAD ATTEMPTED TO DISSUADE MS. DOWALIBY AS
 WELL AS THE OTHER GRIEVANTS FROM PROCEEDING WITH THEIR GRIEVANCES TO
 ARBITRATION.
 
                        DISCUSSION AND CONCLUSIONS
 
    IT IS WELL SETTLED THAT THE RIGHT TO FILE AND PROCESS GRIEVANCES
 UNDER A CONTRACTUAL GRIEVANCE PROCEDURE FALLS WITHIN THE AMBIT OF
 SECTION 1(A) OF THE EXECUTIVE ORDER WHICH PROVIDES THAT EMPLOYEES HAVE
 THE "RIGHT, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL, TO FORM,
 JOIN AND ASSIST A LABOR ORGANIZATION." ACCORDINGLY, IT HAS BEEN HELD
 THAT INTERFERENCE BY AN ACTIVITY WITH THE FILING AND/OR PROCESSING OF A
 GRIEVANCE CONSTITUTES A VIOLATION OF SECTION 19(A)(1) OF THE EXECUTIVE
 ORDER.  /2/
 
    IN THE INSTANT CASE MR. PAGE, RESPONDENT'S REPRESENTATIVE, FOR
 REASONS UNRELATED TO THE MECHANICS OF THE CONTRACTUAL GRIEVANCE
 PROCEDURE, SAW FIT TO PERSONALLY CONTRACT MS. DOWALIBY CONCERNING THE
 POSSIBLE CONSEQUENCES OF HER REINSTATED GRIEVANCE.  DURING THE ENSUING
 UNSOLICITED DISCUSSION MR. PAGE MADE IT CLEAR THAT HE COULD UNILATERALLY
 SETTLE MS.  DOWALIBY'S GRIEVANCE AND THOSE OF HER FOUR FELLOW EMPLOYEES
 BY UNILATERALLY ABANDONING THE ROTATIONAL SHIFT POLICY AND ASSIGNING ONE
 PERSON ON A PERMANENT BASIS TO THE MIDNIGHT SHIFT.  MR. PAGE FURTHER
 STATED THAT IF SUCH ACTION WAS TAKEN MS. DOWALIBY, BY REASON OF HER LOW
 SENIORITY STANDING, WOULD BE THE PERSON ASSIGNED TO THE MIDNIGHT SHIFT.
 MR. PAGE ADMITTED THAT HE WAS OF THE OPINION THAT ROTATION WAS THE MOST
 EQUITABLE METHOD AND FOR THIS REASON SOUGHT TO DISSUADE THE EMPLOYEES
 FROM PROCEEDING FURTHER WITH THEIR RESPECTIVE GRIEVANCES.
 
    VIEWING THE CONVERSATION OF DECEMBER 6TH IN ITS ENTIRETY AND THE
 CIRCUMSTANCES SURROUNDING SAME, I.E. THE ABSENCE OF THE MS. DOWALIBY'S
 APPOINTED UNION REPRESENTATIVE, I CONCLUDE THAT MR. PAGE, IRRESPECTIVE
 OF ANY ALTRUISTIC INTENTIONS HE MAY HAVE HAD, INTERFERED WITH THE RIGHTS
 ACCORDED MS. DOWALIBY UNDER SECTION 1(A) OF THE ORDER TO FREELY AND
 WITHOUT FEAR OF PENALTY OR REPRISAL FILE AND/OR PROCESS GRIEVANCES.
 WHILE IT MIGHT WELL BE TRUE THAT THE OUTCOME OF THE GRIEVANCES, EITHER
 BY UNILATERAL MANAGEMENT ACTION OR AN ADVERSE DECISION OF THE
 ARBITRATOR, WOULD BE THE CANCELLATION OF THE POLICY OF ROTATION AND THE
 ASSIGNMENT OF AN EMPLOYEE ON A PERMANENT BASIS TO THE MIDNIGHT SHIFT,
 THE FACT REMAINS THAT NO SUCH ACTION HAD BEEN EFFECTED.  IN SUCH
 CIRCUMSTANCES, MR. PAGE'S GRATUITOUS REMARKS CONSTITUTED AN IMPLIED
 THREAT TO MS. DOWALIBY THAT IRRESPECTIVE OF THE MERITS OF HER GRIEVANCE,
 IF SHE CONTINUED TO PURSUE SAME, SHE, BY VIRTUE OF HER LOW SENIORITY
 STANDING, WOULD BE ASSIGNED TO THE MIDNIGHT SHIFT.  THIS IS PARTICULARLY
 TRUE IN VIEW OF THE FACT THAT RESPONDENT HAD BEEN PUT ON NOTICE THAT MS.
 DOWALIBY WOULD RESIGN RATHER THAN WORK THE MIDNIGHT SHIFT.
 
    ACCORDINGLY, BASED UPON THE FOREGOING CONSIDERATIONS, I FIND THAT
 RESPONDENT COERCED, RESTRAINED AND INTERFERED WITH MS. DOWALIBY IN
 EXERCISE OF HER SECTION 1(A) RIGHTS IN VIOLATION OF SECTION 19(A)(1) OF
 THE EXECUTIVE ORDER.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26(B) OF THE REGULATIONS, THE FEDERAL LABOR RELATIONS
 AUTHORITY HEREBY ORDERS THAT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH,
 NEW HAMPSHIRE, SHALL:
 
    1.  CEASE AND DESIST FROM DISCOURAGING, BY IMPLIED THREATS OR OTHER
 MEANS, KATHERINE DOWALIBY OR ANY OTHER EMPLOYEE FROM EXERCISING THE
 RIGHTS ACCORDED THEM BY THE ORDER TO FILE OR PROCESS GRIEVANCES UNDER
 THE CONTRACTUAL GRIEVANCE PROCEDURE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED:
 
    (A) POST AT THE PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
 COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
 BY THE FEDERAL LABOR RELATIONS 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 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 203.27 OF THE REGULATIONS, NOTIFY THE FEDERAL
 LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM DATE OF THIS
 ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                            BURTON S. STERNBURG
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 2, 1979
 
    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 DISCOURAGE, BY MEANS OF IMPLIED THREATS OR OTHER MEANS,
 KATHERINE DOWALIBY OR ANY OTHER EMPLOYEE FROM EXERCISING THE RIGHTS
 ACCORDED THEM BY EXECUTIVE ORDER 11491, AS AMENDED, TO FILE OR PROCESS
 GRIEVANCES UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE.
 
   .          .          .          .
 
 
                           (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 ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR OF THE FEDERAL LABOR RELATIONS AUTHORITY,
 WHOSE ADDRESS IS:  441 STUART STREET, 8TH FLOOR, BOSTON, MASSACHUSETTS
 02116, AND WHOSE TELEPHONE NUMBER IS:  617-223-0920.
 
                               SERVICE SHEET
 
    "DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE BURTON S.
 STERNBURG WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                          SIGNATURE:  LINDA ENOCH
 
    A. GENE NIRO, ESQUIRE
 
    AREA REPRESENTATIVE
 
    NAVAL CIVILIAN PERSONNEL COMMAND RESPONDENT ATTORNEY
 
    NORTHERN FIELD DIVISION
 
    666 SUMMER STREET
 
    BUILDING 113
 
    BOSTON, MA
 
    JAMES LYONS
 
    DIRECTOR OF PUBLIC EMPLOYEE AFFAIRS FOR THE COMPLAINANT
 
    INTERNATIONAL FEDERATION OF PROFESSIONAL
 
    AND TECHNICAL ENGINEERS, AFL-CIO
 
    1126 - 16TH STREET, NW.
 
    SUITE 111
 
    WASHINGTON, .D.C.  20036
 
    REGULAR MAIL:
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 "E" STREET, NW., RM. 7469
 
    WASHINGTON, D.C.  20424
 
    ONE COPY TO EACH REGIONAL DIRECTOR - RD BOSTON
 
    ASSISTANT DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    U.S. OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET, NW.
 
    WASHINGTON, D.C.  20415
 
    MR. RODNEY A. BOWER, PRESIDENT
 
    INTERNATIONAL FEDERATION OF PROFESSIONAL
 
    AND TECHNICAL ENGINEERS, AFL-CIO
 
    1126 - 16TH STREET, NW., SUITE 100 WASHINGTON, D.C.  20036
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ CF. FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC CONTROL TOWER,
 GREATER PITTSBURGH AIRPORT, PITTSBURGH, PA., A/SLMR 920;  DEPT. OF
 DEFENSE, ARKANSAS NATIONAL GUARD, A/SLMR 53;  DEPT. OF NAVY, PUGET SOUND
 NAVAL SHIPYARD, BREMERTON, WASHINGTON, A/SLMR 582;  NLRB, REGION 17, FT.
 NOTE 3, A/SLMR 295;  U.S. DEPT. OF THE ARMY, FORT POLK, LOUISIANA,
 A/SLMR 1100.