Department of the Navy, Portsmouth Naval Shipyard (Respondent) and Portsmouth Federal Employees Metal Trades Council, AFL-CIO (Charging Party)

 



[ 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
 1963.  (TR.163).
 
    2.  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).
 
    3.  RUDOLPH COUTURE BECAME POULIN'S PERMANENT SUPERVISOR IN OCTOBER
 1978.  (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).
 
    4.  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).
 
    5.  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).
 
    6.  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).
 
    7.  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).
 
    8.  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).
 
    9.  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).
 
    10.  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).
 
    11. 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).
 
    12.  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).
 
    13.  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).
 
    14.  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).
 
    15.  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).
 
    16.  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)
 
    17.  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,
 1979.  (GENERAL COUNSEL'S EXH.2).
 
    18.  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).
 
    19.  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).
 
    20.  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).
 
    21.  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).
 
    22.  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).
 
    23.  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).
 
    24.  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).
 
    25.  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).
 
    26.  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).
 
    27.  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).
 
    28.  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).
 
    29.  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).
 
    30.  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).
 
    31.  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 STA