09:0458(55)CA - Norfolk Naval Shipyard and Tidewater Virginia Federal Employees MTC -- 1982 FLRAdec CA



[ v09 p458 ]
09:0458(55)CA
The decision of the Authority follows:


 9 FLRA No. 55
 
 NORFOLK NAVAL SHIPYARD
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL
 Charging Party
 
                                            Case No. 3-CA-1613
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES UNDER SECTION 7116(A)(1) AND (8) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND
 RECOMMENDING CERTAIN REMEDIAL ACTION.  THEREAFTER THE RESPONDENT FILED
 EXCEPTIONS TO THE JUDGE'S DECISION.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE JUDGE'S DECISION, AND THE ENTIRE RECORD, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1A/ IN SO DOING, THE AUTHORITY RECOGNIZES
 MANAGEMENT'S NEED, UNDER CERTAIN CIRCUMSTANCES, TO PLACE REASONABLE
 LIMITATIONS ON THE EXCLUSIVE REPRESENTATIVE'S PARTICIPATION PURSUANT TO
 SECTION 7114(A)(2)(B) OF THE STATUTE DURING AN EXAMINATION OF AN
 EMPLOYEE, IN ORDER TO PREVENT AN ADVERSARY CONFRONTATION WITH THAT
 REPRESENTATIVE AND TO ACHIEVE THE OBJECTIVE OF THE EXAMINATION.  IN THE
 INSTANT CASE, THE AUTHORITY RELIES UPON THE JUDGE'S CONCLUSION THAT
 EMPLOYEES WERE UNNECESSARILY INTIMIDATED.  IT FOLLOWS THAT THE
 RESPONDENT'S CONDUCT WENT BEYOND WHAT WAS REASONABLY NECESSARY UNDER
 THE
 SPECIFIC CIRCUMSTANCES OF THIS CASE.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE NORFOLK NAVAL SHIPYARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
 TRADES COUNCIL IN THE EXERCISE OF ITS RIGHT TO REPRESENT EMPLOYEES AT
 EXAMINATIONS OF EMPLOYEES IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK
 NAVAL SHIPYARD IN CONNECTION WITH AN INVESTIGATION, IF THE EMPLOYEE
 INVOLVED REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS
 REPRESENTATION BY THE COUNCIL.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED TO THEM BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) RESCIND THE LETTER OF CAUTION WRITTEN TO DEBRA SHELTON ON
 NOVEMBER 12, 1980, AND NOTIFY HER OF THIS ACTION BY CERTIFIED MAIL.
 
    (B) AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, THE
 OPPORTUNITY TO PROVIDE FULL AND FAIR REPRESENTATION AT ANY EXAMINATION
 OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK NAVAL
 SHIPYARD IN CONNECTION WITH AN INVESTIGATION, IF THE EMPLOYEE REASONABLY
 BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST
 THE EMPLOYEE AND THE EMPLOYEE REQUESTS REPRESENTATION.
 
    (C) POST, AT ITS FACILITIES, COPIES OF THE ATTACHED NOTICE ON FORMS
 TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT
 OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER AND 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 COMMANDING OFFICER SHALL TAKE
 REASONABLE STEPS TO ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
 OR COVERED BY ANY OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, 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., JULY 16, 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 INTERFERE WITH THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL IN THE EXERCISE OF ITS RIGHT TO REPRESENT EMPLOYEES
 AT EXAMINATIONS OF EMPLOYEES IN THE UNIT BY A REPRESENTATIVE OF THE
 NORFOLK NAVAL SHIPYARD IN CONNECTION WITH AN INVESTIGATION, IF THE
 EMPLOYEE INVOLVED REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS
 REPRESENTATION BY THE COUNCIL.  WE WILL NOT, IN ANY LIKE OR RELATED
 MANNER, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF
 RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.  WE WILL RESCIND THE LETTER OF CAUTION SENT TO DEBRA SHELTON,
 ON NOVEMBER 12, 1980, AND SO INFORM HER BY CERTIFIED MAIL.  WE WILL
 AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, OR
 ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, THE OPPORTUNITY TO
 PROVIDE FULL AND FAIR REPRESENTATION AT ANY EXAMINATION OF AN EMPLOYEE
 IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK NAVAL SHIPYARD IN
 CONNECTION WITH AN INVESTIGATION, IF THE EMPLOYEE REASONABLY BELIEVES
 THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION AGAINST THE
 EMPLOYEE AND THE EMPLOYEE REQUESTS REPRESENTATION.
 
                           (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 OF
 THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS:
 1111 18TH STREET, N.W., SUITE 700, WASHINGTON, D.C., 20036, AND WHOSE
 TELEPHONE NUMBER IS:  (202) 653-8507.
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    W. B. BAGBY AND
    JAMES D. MCGOWAN,
    FOR THE RESPONDENT
 
    SUSAN SHINKMAN AND
    PETER A. SUTTON,
    ATTORNEYS FOR THE GENERAL COUNSEL
    FEDERAL LABOR RELATIONS AUTHORITY
 
    BEFORE:  ISABELLE R. CAPPELLO
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191 (1978), 5 U.S.C. 7101 ET SEQ. (SUPP.
 III, 1979) (HEREINAFTER REFERRED TO AS THE "STATUTE"), AND THE RULES AND
 REGULATIONS ISSUED THEREUNDER AND PUBLISHED AT 45 FED.REG.  3486 ET
 SEQ., 5 CFR 2400 ET SEQ.
 
    ON FEBRUARY 17, 1981, THE REGIONAL DIRECTOR OF REGION III OF THE
 FEDERAL LABOR RELATIONS AUTHORITY (HEREINAFTER, THE "AUTHORITY") FILED
 AN AMENDED COMPLAINT AND NOTICE OF HEARING, BASED ON A CHARGE FILED ON
 NOVEMBER 3, 1980, BY THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
 TRADES COUNCIL (HEREINAFTER, THE "COUNCIL" OR THE "UNION").  THE AMENDED
 COMPLAINT ALLEGES THAT RESPONDENT NORFOLK NAVAL SHIPYARD ("RESPONDENT OR
 "SHIPYARD") VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE, THROUGH
 ITS AGENT CHARLES RUTLEDGE, BY INTERFERING WITH UNION REPRESENTATIVES
 AND EMPLOYEES ATTEMPTING TO EXERCISE RIGHTS PROTECTED BY SECTION
 7114(A)(2)(B) OF THE STATUTE.  RESPONDENT DENIES THAT IT HAS VIOLATED
 THE STATUTE.  RESPONDENT ALSO ALLEGES THAT THE ISSUES RAISED IN THIS
 CASE WERE FIRST RAISED THROUGH THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURES AND ARE THEREFORE "PRECLUDED FROM CONSIDERATION UNDER THE
 UNFAIR LABOR PRACTICE PROCEDURES BY SECTION 7116(D) OF THE STATUTE."
 (RBR 12) /1/
 
    A HEARING IN THE MATTER WAS HELD IN NORFOLK, VIRGINIA, ON MARCH 23
 AND 24, 1981.  THE PARTIES APPEARED, ADDUCED EVIDENCE, AND EXAMINED AND
 CROSS-EXAMINED WITNESSES.  BRIEFS WERE FILED ON MAY 15, BY THE GENERAL
 COUNSEL, AND ON MAY 8, BY RESPONDENT.  BASED ON THE RECORD MADE AT THE
 HEARING, MY OBSERVATION OF THE DEMEANOR OF THE WITNESSES, AND A
 CONSIDERATION OF THE BRIEFS, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS,
 AND RECOMMENDED ORDER.
 
                           FINDINGS OF FACT /2/
 
    1.  NORFOLK NAVAL SHIPYARD IS AN "AGENCY" AND THE UNION IS A "LABOR
 ORGANIZATION" WITHIN THE MEANING OF THE STATUTE.  THE UNION IS THE
 EXCLUSIVE REPRESENTATIVE OF CERTAIN OF RESPONDENT'S EMPLOYEES, INCLUDING
 JAMES LONEY AND DEBRA SHELTON.
 
    2.  PREACTION INVESTIGATIONS ARE CONDUCTED BY INVESTIGATORS OF THE
 SHIPYARD TO INQUIRE INTO, DISCOVER, AND REPORT PERTINENT FACTS
 CONCERNING A MATTER WHICH MAY INVOLVE DISCIPLINARY ACTION OR ADVERSE
 ACTION.  THE INVESTIGATORS ARE TRAINED BY THE SHIPYARD IN A SPECIAL
 COURSE AND ARE DRAWN FROM SHIPYARD SUPERVISORS.  CHARLES RUTLEDGE IS AN
 ELECTRICIAN FOREMAN AT THE SHIPYARD AND SERVED AS A PREACTION
 INVESTIGATOR, FOR THE FIRST TIME, DURING THE PERIOD FROM AUGUST 1
 THROUGH OCTOBER 6.  /3/ DURING HIS STINT AS A PREACTION INVESTIGATOR, HE
 CONDUCTED 35 TO 40 INVESTIGATIONS AND MADE ABOUT A HUNDRED CONTACTS WITH
 PEOPLE INVOLVED IN THE INVESTIGATIONS.
 
    3.  DURING HIS STINT AS A PREACTION INVESTIGATOR, MR. RUTLEDGE
 INTERVIEWED DEBRA SHELTON AND JAMES LONEY.  BOTH WERE GRANTED THE RIGHT
 TO BE REPRESENTED BY UNION STEWARDS AT THE INTERVIEWS.  MS. SHELTON WAS
 REPRESENTED BY JANICE STONE.  MR. LONEY WAS REPRESENTED BY GORDON
 BENTLEY.  MR. BENTLEY DOES NOT NOW HOLD ANY UNION POSITION;  AND HE
 SERVED AS A STEWARD BETWEEN JULY AND SEPTEMBER.  MS. STONE WAS A CHIEF
 STEWARD FOR ABOUT NINE MONTHS, FROM JUNE UNTIL FEBRUARY, 1981, HAS BEEN
 A STEWARD FOR ABOUT FOUR YEARS, AND IS STILL A STEWARD.
 
    4.  THE GENERAL COUNSEL CALLED MR. LONEY, MR. BENTLEY, AND MS.  STONE
 AS WITNESSES.  MS. SHELTON NOW WORKS FOR IBM IN ATLANTA, GEORGIA AND DID
 NOT APPEAR AS A WITNESS.  RESPONDENT CALLED MR. RUTLEDGE AS ITS WITNESS
 TO WHAT TRANSPIRED AT HIS INTERVIEWS WITH MR. LONEY AND MS. SHELTON.
 MR. RUTLEDGE'S ACCOUNT OF THE INTERVIEWS VARIES, IN SOME SIGNIFICANT
 RESPECTS, TO THOSE GIVEN BY THE GENERAL COUNSEL'S WITNESSES.  AS A
 WITNESS, MR.  RUTLEDGE APPEARED TO BE SOMEWHAT LESS THAN CANDID AND
 DEFENSIVE.  ALSO, IN VIEW OF THE MANY INTERVIEWS HE HELD DURING HIS
 SHORT STINT AS AN INVESTIGATOR, HIS MEMORY OF THE PARTICULARS OF EACH
 ONE WOULD BE SOMEWHAT DIFFICULT.  IN CONTRAST, MR. LONEY AND MR. BENTLEY
 GAVE CONSISTENT ACCOUNTS OF THE LONEY INTERVIEW AND APPEARED CONFIDENT
 OF THEIR FACTS.  MR. BENTLEY IS NO LONGER A STEWARD AND HOLDS NO
 POSITION WITH THE UNION, SO HE HAD NO SELF-INTEREST TO PROTECT IN GIVING
 HIS TESTIMONY.  IN THESE FINDINGS, THEREFORE, I HAVE RESOLVED CONFLICTS
 IN THE TESTIMONY BY RELYING ON THAT OF MR. LONEY AND MR. BENTLEY AS
 BEING MORE RELIABLE.  THERE WAS NO WITNESS TO CORROBORATE MS. STONE'S
 ACCOUNT OF THE INTERVIEW OF MS. SHELTON AND, AS PRESENT STEWARD OF THE
 UNION, SHE CANNOT BE CHARACTERIZED AS A COMPLETELY UNBIASED WITNESS.
 NEVERTHELESS, SHE GAVE HER ACCOUNT IN A FORTHRIGHT, POSITIVE MANNER AND
 WAS A MORE BELIEVABLE WITNESS THAN MR. RUTLEDGE.  ACCORDINGLY, I HAVE
 CREDITED THE ACCOUNT GIVEN BY MS. STONE OF THE INTERVIEWS WITH MS.
 SHELTON, WHERE A CONFLICT OCCURRED.
 
                            THE LONEY INTERVIEW
 
    5.  ON AUGUST 25, MR. RUTLEDGE HELD AN INTERVIEW WITH MR. LONEY ON A
 CHARGE OF UNAUTHORIZED ABSENCE FROM JULY 21 THROUGH AUGUST 5.  AT THE
 TIME OF THE INTERVIEW, MR. LONEY HAD ALREADY BEEN PUT ON SO-CALLED "Z
 LEAVE" FOR THOSE DAYS.  EMPLOYEES ARE PUT ON Z LEAVE FOR UNAUTHORIZED
 ABSENCE FROM WORK.  MR. LONEY HAS NEVER BEEN PAID FOR THOSE DAYS.
 PLACEMENT ON Z LEAVE IS NOT A DISCIPLINARY OR ADVERSE ACTION, BUT
 UNAUTHORIZED LEAVE CAN LEAD TO SUCH AN ACTION.  THE INTERVIEW BEGAN WITH
 MR. RUTLEDGE ASKING MR. LONEY SOME QUESTIONS FROM A PREVIOUSLY PREPARED
 LIST.  VERY EARLY IN THE QUESTIONING, MR. BENTLEY OBJECTED TO THE
 QUESTIONS AS "UNFAIR" AND NOT "LEGITIMATE" BECAUSE THEY REFERRED TO
 ARTICLES AND SECTIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH
 EMPLOYEES WOULD NOT BE LIKELY TO KNOW.  (TR 63-64, 75) TO MAKE HIS
 POINT, MR. BENTLEY ASKED MR. RUTLEDGE ABOUT AN ARTICLE OF THE AGREEMENT
 WHICH MR. RUTLEDGE DID NOT KNOW.  MR. BENTLEY CONTINUED TO OBJECT AND
 DID THE MAJORITY OF THE TALKING IN RESPONSE TO THE QUESTIONS POSED BY
 MR.  RUTLEDGE.  MR. RUTLEDGE BECAME FRUSTRATED AND REPEATEDLY TOLD MR.
 BENTLEY TO KEEP QUIET, THAT HE WANTED TO HEAR MR. LONEY'S SIDE OF THE
 STORY.  MR. RUTLEDGE ALSO TOLD MR. BENTLEY THAT HE WAS NOT A COUNCIL
 REPRESENTATIVE AND DID NOT HAVE "THE RIGHT TO SPEAK." (TR 56) MR.
 BENTLEY SHOWED MR. RUTLEDGE THE NEGOTIATED AGREEMENT BETWEEN THE PARTIES
 TO PROVE THAT HE, MR. BENTLEY, WAS THE COUNCIL REPRESENTATIVE.  MR.
 BENTLEY CONTINUED TO INSIST THAT MR. BENTLEY REMAIN QUIET.  MR. BENTLEY
 DID NOT REMAIN QUIET, HOWEVER.  MR. LONEY ONLY ANSWERED QUESTIONS WHEN
 TOLD TO DO SO BY MR. BENTLEY;  AND MR. BENTLEY DISAPPROVED OF EIGHT OF
 THE TWELVE PREPARED QUESTIONS.  INSTEAD OF ANSWERING THE EIGHT, MR.
 BENTLEY ADVISED MR. LONEY TO RESPOND THAT HE WOULD "COVER" THE QUESTION
 IN A STATEMENT TO BE MADE AT A LATER DATE.  MR. LONEY FOLLOWED MR.
 BENTLEY'S ADVICE THROUGHOUT THE INTERVIEW.  MR. BENTLEY DID NOT FAIL TO
 BRING ANYTHING TO THE ATTENTION OF MR. RUTLEDGE THAT HE SHOULD HAVE.
 MR. LONEY NEVER SUBMITTED A WRITTEN STATEMENT, ALTHOUGH INFORMED BY MR.
 RUTLEDGE THAT HE HAD AN "AUTOMATIC" RIGHT TO SUBMIT SUCH A STATEMENT.
 (TR 72)
 
    6.  AT THE CONCLUSION OF THE AUGUST 25 INTERVIEW OF MR. LONEY, MR.
 RUTLEDGE HANDED MR. LONEY AN INTERVIEW CHECKLIST TO SIGN.  THE CHECKLIST
 SHOWS THAT MR. LONEY WAS ADVISED OF HIS RIGHTS TO UNION REPRESENTATION,
 THAT HE HAD BEEN INFORMED OF THE ALLEGED INCIDENT BEING INVESTIGATED,
 AND THAT HE HAD MADE NO STATEMENT, ORAL OR WRITTEN.  MR. LONEY HANDED
 THE CHECKLIST TO MR. BENTLEY WHO PROCEEDED TO WRITE ON THE CHECKLIST IN
 A SPACE PROVIDED FOR "INVESTIGATOR NOTES." (TR 60 AND R 2) MR. BENTLEY
 WAS ATTEMPTING TO WRITE "BUT RESERVES THE RIGHT TO MAKE A STATEMENT AT A
 LATER DATE." MR. RUTLEDGE SNATCHED THE PAPER FROM MR. LONEY BEFORE MR.
 LONEY HAD COMPLETED WHAT HE WANTED TO WRITE.  MR. LONEY AND MR. BENTLEY
 SIGNED THE CHECKLIST AND ALSO A SHEET SHOWING THE ANSWERS GIVEN BY MR.
 LONEY, INCLUDING THOSE WHERE HE STATED HE WOULD MAKE A STATEMENT LATER.
 NO DISCIPLINE RESULTED FROM THE INTERVIEW, OR THE UNEXCUSED ABSENCE.
 SEE TR 23.
 
    7.  ABOUT A WEEK AFTER THE AUGUST 25 INTERVIEW, MR. LONEY WROTE A
 LETTER TO THE CHIEF STEWARD OF THE UNION, IN WHICH HE OBJECTED THAT HE
 DID NOT HAVE PROPER REPRESENTATION AT THE INTERVIEW AND STATED THAT HE
 WANTED TO FILE A GRIEVANCE AGAINST MR. RUTLEDGE BECAUSE OF HIS "VERY
 BAD" MISBEHAVIOR AT THE INTERVIEW.  (TR 40, 42 AND 44)
 
                           THE SHELTON INTERVIEW
 
    8.  ON AUGUST 28, A FIGHT OCCURRED BETWEEN DEBRA SHELTON AND TIMOTHY
 CARTER OVER A WORK-RELATED DISPUTE.  THERE WERE NO WITNESSES.  JANICE
 STONE, CHIEF STEWARD FOR THE UNION LEARNED ABOUT IT AND REPORTED TO
 SHIPYARD OFFICIALS THAT MR. CARTER HAD BEATEN MS. SHELTON.
 
    9.  ON AUGUST 29, MR. RUTLEDGE WAS DIRECTED TO LOOK INTO THIS
 ALLEGATION AGAINST MR. CARTER.  HE TALKED TO MS. SHELTON IN THE SHIPYARD
 DISPENSARY WHERE SHE WAS BEING TREATED FOR INJURIES.  MS. SHELTON GAVE
 MR. RUTLEDGE A WRITTEN STATEMENT.  SHE DID NOT REQUEST UNION
 REPRESENTATION.
 
    10.  ON SEPTEMBER 9, MR. RUTLEDGE AGAIN MET WITH MS. SHELTON TO GET A
 STATEMENT IN A PREACTION INVESTIGATION WHICH WAS INSTITUTED TO LOOK INTO
 THE CHARGE AGAINST MR.  CARTER.  MS. SHELTON, THIS TIME, WAS REPRESENTED
 BY THE UNION, IN THE PERSON OF MS. STONE.  MR.  RUTLEDGE PROCEEDED TO
 ASK MS. SHELTON QUESTIONS AND WAS CONTINUALLY INTERRUPTED BY MS. STONE.
 MS. STONE INSISTED THAT THE QUESTIONS WERE LEADING AND MISLEADING, AND
 THAT MR. RUTLEDGE WAS NOT FOLLOWING THE NEGOTIATED AGREEMENT.  MR.
 RUTLEDGE REPLIED THAT HE WAS STATING THE QUESTIONS EXACTLY AS HE WANTED
 TO STATE THEM, AND THAT HE ONLY HAD TO FOLLOW THE FEDERAL PERSONAL
 MANUAL.  MS.  STONE HAD AN OPPORTUNITY TO CONSULT PRIVATELY WITH MS.
 SHELTON.  SHE ADVISED HER NOT TO ANSWER LEADING QUESTIONS AND, AT FIRST,
 MS. SHELTON FOLLOWED THIS ADVICE.  MR. RUTLEDGE KEPT TELLING MS. STONE
 TO KEEP QUIET AND NOT INTERRUPT.  HE ALSO TOLD HER THAT SHE WAS NOT A
 REPRESENTATIVE FOR THE COUNCIL, OR MS. SHELTON.  MS. STONE, HOWEVER,
 ASSERTED HER RIGHTS OF REPRESENTATION AND DID NOT KEEP QUIET.  HOWEVER,
 MS. SHELTON BECAME DISTRESSED, STARTED TO CRY, AND EVENTUALLY GAVE MR.
 RUTLEDGE ANOTHER STATEMENT, AGAINST THE ADVICE OF MS. STONE.  MR.
 RUTLEDGE ADMITTED THAT HE RECEIVED A STATEMENT FROM MS. SHELTON AFTER HE
 BECAME "A LITTLE MORE ASSERTIVE".  (TR 139)
 
    11.  ON OR ABOUT SEPTEMBER 16, MR. RUTLEDGE HAD A SECOND MEETING WITH
 MS. SHELTON AND MS. STONE.  THIS MEETING WAS A PREACTION INVESTIGATION
 IN WHICH MS.  SHELTON WAS THE SUBJECT OF THE INVESTIGATION.  IT TOO
 CONCERNED THE SHELTON-CARTER INCIDENT.  MR.  RUTLEDGE AGAIN WAS
 CONTINUALLY INTERRUPTED BY MS. STONE, IN THE COURSE OF HIS QUESTIONING.
 MS. STONE OBJECTED THAT MS. SHELTON HAD ALREADY GIVEN TWO STATEMENTS
 ABOUT THE INCIDENT AND THAT MR. RUTLEDGE WAS VIOLATING THE NEGOTIATED
 AGREEMENT.  HE TOLD HER, THREE OR FOUR TIMES, TO KEEP HER MOUTH SHUT,
 AND SHE WAS NOT MS. SHELTON'S REPRESENTATIVE.  MS. STONE DID NOT CEASE
 HER REPRESENTATION EFFORTS ON BEHALF OF MS. SHELTON, HOWEVER.  SHE
 ADVISED MS. SHELTON NOT TO GIVE ANOTHER STATEMENT;  AND THIS TIME MS.
 SHELTON FOLLOWED HER ADVICE, GIVING ONLY SOME "SMALL STATEMENTS" AND
 COPYING OVER AGAIN THE STATEMENT SHE GAVE THE LAST TIME.  MR. RUTLEDGE
 GAVE THEM A "DIRECT ORDER" TO SIGN THE STATEMENT AND THEY DID SO.
 ALTHOUGH MR. RUTLEDGE WAS NOT THEIR SUPERVISOR, IT IS A SHIPYARD RULE
 THAT ANY EMPLOYEE MUST ACCEPT A DIRECT ORDER FROM ANY SUPERVISOR.  THE
 ONLY REASON GIVEN BY MS. STONE FOR NOT WANTING TO SIGN THE STATEMENT WAS
 THAT IT DID NOT STATE THE ALLEGED INCIDENT INVOLVED, AS IS ROUTINELY
 REQUIRED.
 
    12.  THE INTERVIEW ON OR ABOUT SEPTEMBER 16 WAS INTERRUPTED BEFORE
 ITS CONCLUSION BY SUE ALLEN, A PERSONNEL SPECIALIST WHO "VERY POLITELY"
 SAID SHE WAS SORRY TO INTERRUPT, BUT THAT MS. STONE COULD NOT REPRESENT
 MS. SHELTON AS MS. STONE WAS THE CHIEF STEWARD.  (TR 219) THE NEGOTIATED
 AGREEMENT PROVIDES REPRESENTATION BY THE "SHOP STEWARD." (R 8.85,
 SECTION 2B)
 
    13.  ON SEPTEMBER 17, MR. RUTLEDGE ATTENDED A MEETING ALSO ATTENDED
 BY RONALD AULT, THE PRESIDENT OF THE UNION AND CHAIRMAN OF ITS
 CONFERENCE COMMITTEE, MS. STONE, AND TWO MANAGEMENT OFFICIALS, MR.
 HARRIS, AND MS. ALLEN.  THIS MEETING WAS A MONTHLY LABOR-MANAGEMENT
 MEETING. MR. RUTLEDGE WAS THERE BECAUSE HE HAD RECEIVED A LETTER FROM
 MR. HARRIS STATING THAT MS. STONE HAD COMPLAINED ABOUT "SOME
 IMPROPRIETIES" COMMITTED BY HIM IN REGARD TO HIS INTERVIEW WITH MS.
 SHELTON.  (TR 157) MR. RUTLEDGE CLAIMED THAT HE WAS "INNOCENT." (TR 115)
 
    14.  ON SEPTEMBER 22, MR. RUTLEDGE CONDUCTED A PREACTION
 INVESTIGATION OF MS. SHELTON AND HER ROLE IN THE FIGHT WITH MR. CARTER.
 SHE WAS REPRESENTED BY HER COGNIZANT SHOP STEWARD, MR. WILLIAMS.  NO
 EVIDENCE WAS ADDUCED OF ALLEGED IMPROPRIETIES BY MR.  RUTLEDGE, AT THIS
 MEETING.
 
    15.  ON NOVEMBER 12, 1980, MS. SHELTON WAS GIVEN A LETTER OF CAUTION
 BECAUSE OF HER PARTICIPATION IN THE FIGHT WITH MR. CARTER.  THE LETTER
 RECITES THE ALLEGATIONS MADE BY HER AND MR. CARTER, AND REFERS TO
 STATEMENTS SHE MADE "DURING THE PREACTION INVESTIGATION OF THIS
 INCIDENT." (GC 3, PARAGRAPH 2) IT STATES THAT EVEN IF MR. CARTER HAD
 ABUSED HER, SHE SHOULD HAVE GONE IMMEDIATELY TO A SUPERVISOR AND
 REPORTED THE INCIDENT, AND WAS ADMONISHED TO SO CONDUCT HERSELF, IN THE
 FUTURE.  THE LETTER STATES IT IS A "NON-DISCIPLINARY" WRITTEN NOTICE
 THAT WILL NOT GO IN HER PERSONNEL FOLDER, BUT WILL BE RETAINED BY HER
 PRODUCTION SUPERINTENDENT FOR A PERIOD NOT TO EXCEED ONE YEAR, AS A
 RECORD THAT THE MATTER HAD BEEN BROUGHT TO HER ATTENTION.
 
                THE ALLEGED "GRIEVANCE" FILED BY THE UNION
 
    16.  A QUESTION IS RAISED, IN THIS PROCEEDING, AS TO WHETHER A
 SEPTEMBER 2 LETTER OF MR. AULT CONSTITUTED A REQUEST FOR A
 "COUNCIL-EMPLOYEE" MEETING, PURSUANT TO ARTICLE 32 OF THE NEGOTIATED
 AGREEMENT BETWEEN THE UNION AND THE SHIPYARD, OR A "GRIEVANCE", PURSUANT
 TO ARTICLE 33 OF THE AGREEMENT.  SEE RESPONDENT'S EXHIBIT NO. 8.
 
    A.  COUNCIL-EMPLOYEE MEETINGS ARE CALLED "SUBJECT TO THE REQUEST OF
 EITHER PARTY" AND "FOR
 
    THE PURPOSE OF CONFERRING AND RESOLVING PROBLEMS INVOLVING PERSONNEL
 POLICIES AND PRACTICES,
 
    AND APPROPRIATE MATTERS CONCERNING EMPLOYEE WORKING CONDITIONS." (R
 8.86) THE SHIPYARD
 
    COMMANDER AND/OR HIS DESIGNATED REPRESENTATIVE MEET WITH THE UNION'S
 CONFERENCE COMMITTEE,
 
    COMPOSED OF THE UNION'S CHAIRMAN, PLUS FOUR MEMBERS, TO DISCUSS THE
 MATTERS RAISED.  CHIEF
 
    STEWARDS MAY ATTEND.
 
    B.  "GRIEVANCE PROCEDURES" ARE SET OUT IN ARTICLE 33 OF THE
 NEGOTIATED AGREEMENT
 
    (HEREINAFTER, THE "AGREEMENT").  (R 8.89-94) THESE PROCEDURES ARE
 INSTITUTED REGARDING
 
    "IMPROPER APPLICATION OR INTERPRETATION OF TH(E) AGREEMENT, IMPROPER
 APPLICATION OF SHIPYARD
 
    DIRECTIVES, DIRECTIVES ISSUED BY HIGHER AGENCY AUTHORITY AND THE
 CSC." (R8.89) THE PREACTION
 
    INVESTIGATION PROCEDURES ARE SET OUT IN A SHIPYARD DIRECTIVE.  THE
 UNION INITIATES A GRIEVANCE
 
    BY INFORMING THE "INDUSTRIAL RELATIONS OFFICER" IN WRITING, OF THE
 "ARTICLES AND SECTIONS
 
    MISINTERPRETED, THE INCIDENT GIVING RISE TO THE MISINTERPRETATION,
 AND THE CORRECTIVE ACTION
 
    DESIRED." (R 8.92) GENERALLY, GRIEVANCES ARE ASSIGNED A NUMBER BY THE
 SHIPYARD, BUT SOMETIMES
 
    NOT UNTIL ARBITRATION IS INVOKED.  WITHIN 15 DAYS OF RECEIPT OF A
 GRIEVANCE LETTER, THE
 
    PARTIES MEET TO RESOLVE THE MATTER.  SEE R 8.92, SECTION 6.  THE
 INDUSTRIAL RELATIONS OFFICER
 
    (CODE 150) OR HIS DESIGNATEE, WITH OTHER APPROPRIATE MANAGEMENT
 OFFICIALS, REPRESENT THE
 
    SHIPYARD.  THE COUNCIL'S CONFERENCE CHAIRMAN AND THE OTHER CONFERENCE
 MEMBERS REPRESENT THE
 
    UNION.  WITNESSES HAVING KNOWLEDGE OF THE GRIEVANCE MAY BE JOINTLY
 CALLED BY THE PARTIES.  SEE
 
    R 8.92, SECTION 6.
 
    C.  THERE HAD BEEN A PRACTICE BY THE UNION OF SENDING GRIEVANCES TO
 CODE 160, RATHER THAN
 
    TO CODE 150.  /4/ CODE 160 IS THE EMPLOYEE RELATIONS DIVISION HEADED
 BY MR. ANDREW
 
    JAMES.  MR. JAMES STOPPED THE PRACTICE BY SENDING SUCH MISDIRECTED
 GRIEVANCES BACK TO THE
 
    UNION.  HE TOOK THIS ACTION SOMETIME AROUND THE END OF 1979, OR
 AROUND THE FIRST OF 1980.  SEE
 
    TR 234.  ACCORDING TO MR. JAMES, GRIEVANCES DO NOT ALWAYS ADDRESS AN
 INTERPRETATION OF A
 
    SPECIFIC PART OF A CONTRACT, AND DO NOT ALWAYS INCLUDE A
 CORRECTIVE-ACTION PROPOSAL.  SEE TR
 
    230.  MR. AULT FILES ALL GRIEVANCES ON BEHALF OF THE UNION AND
 INDICATED THAT HE FOLLOWS THE
 
    PROCEDURE SET OUT IN THE CONTRACT.  SEE TR 209-210.
 
    17.  SOMETIME IN FEBRUARY, MR. JAMES WROTE A LETTER TO THE UNION IN
 RESPONSE TO UNION COMPLAINTS ABOUT THE WAY THE SHIPYARD WAS CONDUCTING
 PREACTION INVESTIGATIONS.  THE LETTER STATED THAT THE SHIPYARD WOULD
 DEVELOP A TRAINING COURSE, IN RESPONSE TO UNION COMPLAINTS ABOUT THE
 NON-STANDARDIZED NATURE OF THE INVESTIGATIONS AND EMPLOYEES BEING DENIED
 UNION REPRESENTATION.
 
    18.  ON SEPTEMBER 2, MR. AULT DIRECTED A LETTER TO "CODE 160", THE
 OFFICE HEADED BY MR. JAMES.  (R 7) IT WAS RECEIVED ON SEPTEMBER 3.  MR.
 AULT WRITES TO MR. JAMES OFTEN, SOMETIMES ON A DAILY BASIS, ON MATTERS
 OF GENERAL CONCERN.  THE STATED SUBJECT OF THE LETTER IS "PREACTION
 INVESTIGATIONS IN NNSY." IT STATES, IN FULL:
 
    PLEASE BE ADVISED THAT MTC HAS REQUESTED A MEETING TO BRING OUR
 COMPLAINTS TO YOU OVER THE
 
    FOULED UP MESS, WE COMMONLY CALL A PREACTION INVESTIGATION.
 
    YOU HAVE STEADFASTLY REFUSED TO MEET WITH THE COUNCIL.  YOUR REFUSAL
 TO ACKNOWLEDGE OUR (&
 
    YOUR) PROBLEM IS LIKE AN OSTRICH STICKING HIS HEAD IN THE SAND TO
 HIDE.  YOUR ASS IS HANGING
 
    OUT.
 
    WE REQUEST YOU MEET WITH US TO AIR OUR PROBLEM.  A JOINT EFFORT CAN
 RESOLVE BOTH OUR
 
    PROBLEMS.  THE SEPTEMBER 2 LETTER IS TYPICAL OF THE TYPE
 CORRESPONDENCE WHICH MR.  AULT SENDS TO MR. JAMES.  MR. AULT TESTIFIED
 THAT THE LETTER WAS "NOT A GRIEVANCE." (TR 217)
 
    19.  ON SEPTEMBER 29, A UNION-MANAGEMENT MEETING WAS HELD ON THE
 MATTERS RAISED BY THE SEPTEMBER 2 LETTER.  IT FOLLOWED AN INFORMAL
 MEETING BETWEEN MR. AULT AND MR.  JAMES "A FEW DAYS" AFTER MR. JAMES
 RECEIVED THE LETTER.  SEE TR 175, 176.  IN ATTENDANCE AT THE SEPTEMBER
 29 MEETING WERE MARILYN SPENCE, A LABOR RELATIONS SPECIALIST, AND SAMUEL
 PITTMAN, A PERSONNEL MANAGEMENT SPECIALIST, BOTH REPRESENTING THE
 SHIPYARD AND SUPERVISED BY MR. JAMES.  REPRESENTING THE UNION WAS ITS
 CONFERENCE COMMITTEE.  GENERAL PROBLEMS WITH PREACTION INVESTIGATIONS
 WERE DISCUSSED.  ALSO DISCUSSED WERE SPECIFIC PROBLEMS WITH THREE
 PREACTION INVESTIGATORS, INCLUDING MR. RUTLEDGE AND HIS INVESTIGATIONS
 INVOLVING MR. LONEY AND MS. SHELTON.  DISCUSSED WAS WHETHER MR. RUTLEDGE
 DISCRIMINATED AGAINST MS. STONE, ON A RACIAL BASIS;  REJECTED STATEMENTS
 AS NOT WHAT HE WANTED;  WROTE UP CHARGES AGAINST EMPLOYEES AND THEN
 ACTED AS THE INVESTIGATOR;  DENIED UNION REPRESENTATION TO EMPLOYEES;
 HARASSED UNION REPRESENTATIVES;  INTIMIDATED EMPLOYEES;  AND
 MISREPRESENTED HIMSELF TO MS. SHELTON BY GETTING A STATEMENT FROM HER
 WITHOUT IDENTIFYING HIMSELF AS A PREACTION INVESTIGATOR.  THE UNION DID
 NOT REQUEST ARBITRATION, FOLLOWING THIS MEETING, AS IT COULD HAVE DONE
 HAD THIS BEEN AN ARTICLE 33 "GRIEVANCE." (R 8.92, SECTION 6B)
 
    20.  ON OCTOBER 10, MR. AULT SIGNED A CHARGE ALLEGING THAT ON OR
 ABOUT AUGUST 25, THE SHIPYARD, BY MR. RUTLEDGE, ACTING AS A PREACTION
 INVESTIGATOR, DID VIOLATE SECTIONS 7116(A)(1) AND (8) OF THE STATUTE BY
 HARASSMENT, COERCION, REFUSING TO RECOGNIZE A UNION STEWARD, AND
 PROHIBITING PROPER REPRESENTATION OF EMPLOYEES AND A FAIR, IMPARTIAL
 PREACTION INVESTIGATION.  SEE GC1(A).  THIS WAS THE CHARGE WHICH
 INITIATED THIS PROCEEDING.  THE CHARGE WAS FILED BECAUSE, ACCORDING TO
 MR. AULT, THE UNION HAD BEEN UNABLE TO OBTAIN ANY RELIEF.
 
                        DISCUSSION AND CONCLUSIONS
 
    TWO ISSUES ARE RAISED BY THE PARTIES-- WHETHER SECTION 7116(D) OF THE
 STATUTE DEPRIVES THIS AUTHORITY OF JURISDICTION TO CONSIDER THE MERITS
 OF THIS CASE;  AND WHETHER MR. RUTLEDGE'S BEHAVIOR IN THE CONDUCT OF TWO
 PREACTION INVESTIGATIONS CONSTITUTED UNFAIR LABOR PRACTICES UNDER
 SECTION 7116(A)(1) AND (8) OF THE STATUTE.  /5/
 
    THE JURISDICTIONAL ISSUE
 
    THE PREPONDERANCE OF THE EVIDENCE INDICATES THAT THE SEPTEMBER 2
 LETTER OF MR. AULT WAS NOT A "GRIEVANCE" OF THE TYPE SPELLED OUT IN
 ARTICLE 33 OF THE AGREEMENT BETWEEN THE PARTIES.  WHILE, IN THE PAST,
 GRIEVANCES MAY HAVE FAILED TO FOLLOW ONE OF THE PROPER CONTRACT
 PROCEDURES, NAMELY, DIRECTING THE GRIEVANCE TO CODE 150, MR. JAMES HAD
 STOPPED THE PRACTICE SOMETIME AROUND THE END OF 1979 OR THE FIRST OF
 1980.  THUS, THE DIRECTION OF THE LETTER TO CODE 160, RATHER THAN TO
 CODE 150 IS A DEPENDABLE CLUE THAT THE LETTER WAS NOT INVOKING ARTICLE
 33 GRIEVANCE PROCEDURES.  THE LETTER ALSO FAILS TO STATE THE CORRECTIVE
 ACTION DESIRED, OR SPELL OUT ANY SPECIFIC INSTANCES GIVING RISE TO THE
 GRIEVANCE-- ARTICLE 33 REQUIREMENTS FOR A GRIEVANCE.  THE LETTER FITS
 MUCH MORE EASILY INTO AN ARTICLE 32 CALL FOR A MEETING TO RESOLVE A
 PROBLEM WITH PERSONNEL PRACTICES, NAMELY HOW PREACTION INVESTIGATIONS
 WERE BEING CONDUCTED.  THE FACT THAT THE MEETING WENT FROM GENERAL
 MATTERS TO SPECIFIC INSTANCES WAS NATURAL.  THE FACT THAT SEVERAL OF THE
 INSTANCES WHICH CAME UP FOR DISCUSSION, AS TO THE GENERAL PROBLEM, ARE
 ALSO THE SUBJECT OF THIS UNFAIR LABOR PRACTICE PROCEEDING DOES NOT SERVE
 TO OUST THIS AUTHORITY OF JURISDICTION.
 
    THE CASES CITED BY RESPONDENT, AT PAGES 15 AND 16 OF ITS BRIEF, ARE
 DISTINGUISHABLE.  IN THE NORFOLK NAVAL SHIPYARD DECISION REPORTED AT 4
 FLRA NO. 91 (1980), THERE WAS NO QUESTION THAT A "GRIEVANCE" HAD BEEN
 FILED.  THE SPECIFICATIONS IN THAT GRIEVANCE ARE SET FORTH ON PAGE 4 OF
 JUDGE DEVANEY'S DECISION, WHICH THE AUTHORITY AFFIRMED;  AND THEY TRACK
 THE CONTRACTUAL REQUIREMENTS FOR A GRIEVANCE.  THE FORMALITY OF THIS
 UNDISPUTED GRIEVANCE ILLUSTRATES HOW FAR FROM BEING A GRIEVANCE IS THE
 SEPTEMBER 2 LETTER OF MR. AULT.
 
    THE OTHER CASE RELIED UPON BY RESPONDENT IS NORFOLK NAVAL SHIPYARD,
 PORTSMOUTH, VIRGINIA, 2 FLRA NO. 104.  IT TOO PRESENTED NO ISSUE AS TO
 WHETHER A "GRIEVANCE" WAS ACTUALLY FILED IN THE MATTERS AT ISSUE IN THE
 UNFAIR LABOR PRACTICE PROCEEDING.  SEE, E.G., 2 FLRA 834.
 
    THE UNFAIR LABOR PRACTICE ISSUE
 
    THE REMAINING QUESTION IS WHETHER MR. RUTLEDGE PROPERLY CONDUCTED HIS
 ROLE OF AN INVESTIGATOR.  THE GENERAL COUNSEL ARGUES THAT "THE PROPER
 ROLE OF A REPRESENTATIVE AT AN INVESTIGATORY INTERVIEW IS MORE THAN THAT
 OF AN OBSERVER," AND "THE REPRESENTATIVE MUST BE ABLE TO SPEAK FREELY ON
 BEHALF OF THE EMPLOYEE." SEE GCBR 9, RELYING ON U.S.  CUSTOMS SERVICE,
 REGION VII, LOS ANGELES, CALIFORNIA, 5 FLRA NO. 41 (1981) AND PAGE 6 OF
 JUDGE NAIMARK'S DECISION, WHICH WAS AFFIRMED BY THE AUTHORITY.  /6/
 RESPONDENT DOES NOT SEEM TO DISAGREE, BUT ARGUES THAT THE AGENCY
 INVESTIGATOR REMAINS "FREE TO INSIST THAT HE IS ONLY INTERESTED, AT THE
 TIME, IN HEARING THE EMPLOYEE'S OWN ACCOUNT OF THE MATTER UNDER
 INVESTIGATION." SEE RBR9, RELYING ON NLRB V. J. WEINGARTEN, INC., 420
 U.S. 251 (1975).  /7/
 
    THE EVOLVING LAW, UNDER THE SEMINAL WEINGARTEN CASE, SEEMS TO BE
 ADOPTING THE VIEW THAT THE EMPLOYER DOES HAVE A LEGITIMATE INTEREST IN
 SEEING THAT AN INVESTIGATORY INTERVIEW DOES NOT BECOME AN ADVERSARIAL
 CONTEST OF WILLS BETWEEN THE INVESTIGATOR AND THE UNION REPRESENTATION.
 SEE THE CUSTOMS CASE CITED ABOVE, AND ALSO THE DECISION OF THE NATIONAL
 LABOR RELATIONS BOARD HOLDING THAT A UNION REPRESENTATION CANNOT BE TOLD
 TO REMAIN SILENT AT A WEINGARTEN-TYPE INTERVIEW, BUT RECOGNIZING THAT
 THE EMPLOYER HAS A "LIMITED" RIGHT TO REGULATE THE ROLE OF THE
 REPRESENTATIVE-- "LIMITED TO A REASONABLE PREVENTION OF . . . (AN)
 ADVERSARY CONFRONTATION WITH THE STATUTORY REPRESENTATIVE."
 SOUTHWESTERN
 BELL TEL., 251 NLRB NO. 61, 105 LRRM 1246, 1247 (1980).  THIS VIEW
 ACCORDS WITH THE PUBLIC INTEREST IN "THE EFFECTIVE CONDUCT OF PUBLIC
 BUSINESS." SEE SECTION 7101(1)(B) OF THE STATUTE STATING CONGRESSIONAL
 FINDINGS AND PURPOSE IN ENACTING IT.  WHAT CONSTITUTES REASONABLENESS IS
 THE DILEMMA HERE.
 
    THE RECORD, FROM THE RESPONDENT'S VIEWPOINT, SHOWS THAT MR.  RUTLEDGE
 WAS NEW TO THE ROLE OF INVESTIGATOR AND UNCERTAIN AS TO HOW TO PROCEED.
 HE WAS UP AGAINST TWO SEASONED AND PERSISTENT UNION STEWARDS WHO
 CONTINUOUSLY OBJECTED AND INTERFERED WITH THE WAY HE WANTED TO CONDUCT
 THE INVESTIGATION, AND HIS ABILITY TO OBTAIN ANSWERS FROM THE EMPLOYEES.
  HIS TELLING THEM TO KEEP QUIET DID NOT RESULT IN THEIR KEEPING QUIET.
 THE STEWARDS CONTINUED TO OBJECT, COUNSEL, AND CONFER WITH THE EMPLOYEES
 BEING QUESTIONED.  HIS PREVENTING MR. BENTLEY FROM WRITING IN A SPACE
 RESERVED FOR "INVESTIGATOR'S NOTES" DID NOT PREVENT MR. BENTLEY FROM
 DOING ANYTHING HE WAS ENTITLED TO DO.
 
    THE RECORD FROM THE UNION'S VIEWPOINT, HOWEVER, DOES SHOW THAT MR.
 RUTLEDGE EXCEEDED "REASONABLE" BOUNDS.  MR. RUTLEDGE'S AGGRESSIVENESS
 WAS INTIMIDATING TO THE EMPLOYEES.  ONE, MS. SHELTON, WAS REDUCED BY HIM
 TO TEARS AND WAS, IN EFFECT, COERCED BY HIM INTO GIVING STATEMENTS,
 CONTRARY TO THE ADVICE OF HER UNION STEWARD.  THE RIGHT PROTECTED, IN
 SECTION 7114(A)(2)(B), TO UNION REPRESENTATION AT AN INVESTIGATORY
 INTERVIEW, SHOULD NOT BE REDUCED TO A NULLITY BY ALLOWING THE EMPLOYEE
 TO BE CAUGHT IN THE CROSSFIRE BETWEEN HER REPRESENTATIVE AND THAT OF HER
 EMPLOYER, FOR, IN SUCH A CIRCUMSTANCE, THE EMPLOYEE IS ALL TOO LIKELY TO
 ACQUIESCE IN THE DEMANDS OF THE EMPLOYER'S REPRESENTATIVE, LEAVING THE
 UNION TO PERSEVERE FOR NAUGHT.  MR.  RUTLEDGE, IN THE CIRCUMSTANCES WITH
 WHICH HE WAS FACED, COULD HAVE, POLITELY INFORMED THE EMPLOYEES THAT
 THEIR CHOICE, OF NOT RESPONDING TO HIS QUESTIONS, LEFT HIM WITH NO
 CHOICE BUT TO TERMINATE THE INTERVIEW, AND REPORT THE FACTS WITHOUT THE
 BENEFIT OF THEIR INPUT.  THIS ALWAYS REMAINS THE OPTION OF MANAGEMENT.
 SEE THE CUSTOMS CASE CITED ABOVE AND, IN PARTICULAR, PAGE 7 OF THE
 JUDGE'S AFFIRMED DECISION.  BY INTIMIDATING THE EMPLOYEES AND ATTEMPTING
 TO SILENCE THEIR UNION REPRESENTATIVES, MR.  RUTLEDGE INTERFERED WITH
 PROTECTED RIGHTS, AS ALLEGED IN THE COMPLAINT.
 
    THE REMEDY
 
    THE GENERAL COUNSEL SEEKS AN ORDER RESCINDING MR. LONEY'S Z LEAVE
 STATUS FOR JULY 21 THROUGH AUGUST 15;  RESCINDING THE LETTER OF CAUTION
 ISSUED TO MS. SHELTON ON NOVEMBER 12;  AND REQUIRING THE POSTING OF AN
 APPROPRIATE NOTICE.  SEE GCBR 14.
 
    AS TO MR. LONEY'S Z LEAVE, HE WAS PLACED ON THAT STATUS BEFORE THE
 PREACTION INVESTIGATION.  NO DISCIPLINE OR ADVERSE ACTION RESULTED FROM
 THE INVESTIGATION ITSELF.  UNDER THESE CIRCUMSTANCES, RECISSION OF HIS Z
 LEAVE STATUS IS INAPPROPRIATE.
 
    MS. SHELTON'S LETTER OF CAUTION, SHOULD BE RESCINDED, HOWEVER.  THE
 LETTER MAKES SPECIFIC REFERENCE TO STATEMENTS GIVEN BY MS. SHELTON AT
 THE PREACTION INVESTIGATION.  SEE GC3.1.  IT DOES NOT SAY WHICH ONE.
 SOME STATEMENTS WERE GIVEN BY HER IN AN ATMOSPHERE OF CONFRONTATION
 BETWEEN THE SHIPYARD AND THE UNION REPRESENTATIVES, AN ENCOUNTER DURING
 WHICH THE SHIPYARD REPRESENTATIVE WAS AGGRESSIVELY SEEKING STATEMENTS
 FROM MS. SHELTON.  STATEMENTS SO OBTAINED ARE TAINTED;  AND RESULTANT
 ACTIONS IN ANY WAY HARMFUL TO AN EMPLOYEE SHOULD BE RESCINDED.  WHILE
 THE LETTER OF CAUTION IS "NON-DISCIPLINARY" AND IS NOT PUT IN THE
 EMPLOYEE'S OFFICIAL PERSONNEL FOLDER, IT IS RETAINED BY A SHIPYARD
 OFFICIAL FOR A PERIOD NOT TO EXCEED A YEAR, DOES REFLECT POORLY ON MS.
 SHELTON, AND COULD AFFECT HER BEING REHIRED, SHOULD SHE WISH TO RETURN
 TO SHIPYARD EMPLOYMENT.
 
    THE POSTING OF A NOTICE TO EMPLOYEES SUMMARIZING THE ORDERS ENTERED
 IN THIS PROCEEDING IS ALSO APPROPRIATE.
 
                        ULTIMATE FINDINGS AND ORDER
 
    RESPONDENT NORFOLK NAVAL SHIPYARD HAS ENGAGED IN UNFAIR LABOR
 PRACTICES, IN VIOLATION OF SECTION 7116(A)(1) AND (8) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    PURSUANT TO SECTION 7118(A)(7) OF THE STATUTE, 5 U.S.C. 7118(A)(7),
 AND SECTION 2423.29(B) OF THE RULES AND REGULATIONS OF THE AUTHORITY, 5
 CFR 2423.29(B), IT IS HEREBY ORDERED THAT RESPONDENT SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL
 TRADES COUNCIL IN THE
 
    EXERCISE OF ITS RIGHT TO REPRESENT EMPLOYEES AT AN EXAMINATION OF AN
 EMPLOYEE IN THE UNIT BY A
 
    REPRESENTATIVE OF RESPONDENT IN CONNECTION WITH AN INVESTIGATION, IF
 THE EMPLOYEE REASONABLY
 
    BELIEVES THAT THE EXAMINATION MAY RESULT IN DISCIPLINARY ACTION
 AGAINST THE EMPLOYEE AND THE
 
    EMPLOYEE REQUESTS REPRESENTATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED TO THEM BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) RESCIND THE LETTER OF CAUTION WRITTEN TO DEBRA SHELTON ON
 NOVEMBER 12, 1980, AND NOTIFY
 
    HER OF THIS ACTION BY CERTIFIED MAIL.
 
    (B) AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, OR ANY OTHER
 
    EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, FULL AND FAIR
 REPRESENTATION AT ANY EXAMINATION OF
 
    AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE NORFOLK NAVAL
 SHIPYARD IN CONNECTION WITH
 
    AN INVESTIGATION, IF THE EMPLOYEE REASONABLY BELIEVES THAT THE
 EXAMINATION MAY RESULT IN
 
    DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE REQUESTS
 REPRESENTATION.
 
    (C) POST, AT ITS FACILITIES, 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 COMMANDING OFFICER AND POSTED AND MAINTAINED BY HIM
 FOR 60 CONSECUTIVE DAYS
 
    THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
 OTHER PLACES WHERE NOTICE
 
    TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDING OFFICER SHALL
 TAKE REASONABLE STEPS TO
 
    ENSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
 OTHER MATERIAL.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE
 
    REGIONAL DIRECTOR, REGION III, 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.
 
                         (S) ISABELLE R. CAPPELLO
 
                         ISABELLE R. CAPPELLO
                         ADMINISTRATIVE LAW JUDGE
 
 DATED:  SEPTEMBER 18, 1981
         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 REQUIRE ANY EMPLOYEE REPRESENTED BY THE TIDEWATER VIRGINIA
 FEDERAL EMPLOYEES METAL TRADES COUNCIL TO TAKE PART IN AN EXAMINATION IN
 CONNECTION WITH AN INVESTIGATION, WITHOUT REPRESENTATION BY THE COUNCIL,
 IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION MAY RESULT IN
 DISCIPLINARY ACTION AGAINST THE EMPLOYEE, AND THE EMPLOYEE REQUESTS
 REPRESENTATION BY THE COUNCIL.  WE WILL NOT, IN ANY LIKE OR RELATED
 MANNER, INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF
 RIGHTS ASSURED BY THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.  WE WILL RESCIND THE LETTER OF CAUTION SENT TO DEBRA SHELTON,
 ON NOVEMBER 12, 1980, AND SO INFORM HER BY CERTIFIED MAIL.  WE WILL
 AFFORD THE TIDEWATER VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL, OR
 ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, FULL AND FAIR
 REPRESENTATION AT ANY EXAMINATION OF AN EMPLOYEE IN THE UNIT BY A
 REPRESENTATIVE OF THE NORFOLK NAVAL SHIPYARD IN CONNECTION WITH AN
 INVESTIGATION, IF THE EMPLOYEE REASONABLY BELIEVES THAT THE EXAMINATION
 MAY RESULT IN DISCIPLINARY ACTION AGAINST THE EMPLOYEE AND THE EMPLOYEE
 REQUESTS REPRESENTATION.
 
                           (AGENCY OR ACTIVITY)
 
 DATED:  . . .  BY:  (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60
 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED,
 DEFACED OR COVERED BY ANY OTHER MATERIAL.  IF EMPLOYEES HAVE ANY
 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE WITH ANY OF ITS
 PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR OF
 THE FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS:
 1133 15TH STREET, N.W., ROOM 300, WASHINGTON, D.C., 20005, AND WHOSE
 TELEPHONE NUMBER IS:  (202) 653-8452.
 
    /1A/ THE RESPONDENT EXCEPTED TO CERTAIN CREDIBILITY FINDINGS MADE BY
 THE JUDGE.  THE DEMEANOR OF WITNESSES IS A FACTOR OF CONSEQUENCE IN
 RESOLVING ISSUES OF CREDIBILITY, AND THE JUDGE HAS HAD THE ADVANTAGE OF
 OBSERVING THE WITNESSES WHILE THEY TESTIFIED.  THE AUTHORITY WILL NOT
 OVERRULE A JUDGE'S RESOLUTION WITH RESPECT TO CREDIBILITY UNLESS A CLEAR
 PREPONDERANCE OF ALL THE RELEVANT EVIDENCE DEMONSTRATES THAT SUCH
 RESOLUTION WAS INCORRECT.  THE AUTHORITY HAS EXAMINED THE RECORD
 CAREFULLY, AND FINDS NO BASIS FOR REVERSING THE JUDGE'S CREDIBILITY
 FINDINGS.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ "RBR" REFERS TO THE BRIEF OF RESPONDENT.  OTHER ABBREVIATIONS
 USED IN THIS DECISION ARE AS FOLLOWS.  "GC" REFERS TO THE EXHIBITS OF
 THE GENERAL COUNSEL AND "R" TO THOSE OF RESPONDENT, WITH MULTIPAGE
 EXHIBITS REFERENCED BY THE EXHIBIT NUMBER FOLLOWED BY THE PAGE NUMBER.
 "TR" REFERS TO THE TRANSCRIPT.  "GCBR" REFERS TO THE BRIEF OF THE
 GENERAL COUNSEL.
 
    /2/ ALL DATED REFERENCES HEREIN ARE IN 1980, UNLESS OTHERWISE
 SPECIFIED.
 
    /3/ SEE TR 124.  AT ONE POINT, IN HIS TESTIMONY, MR. RUTLEDGE
 REFERRED TO SEPTEMBER 2, AS THE ENDING DATE.  SEE TR 156.  THIS WAS
 OBVIOUSLY AN ERROR, AS HE CONDUCTED ONE INVESTIGATION HERE IN ISSUE ON
 SEPTEMBER 9.  SEE, E.G., R 3 AND TR 135.
 
    /4/ MR. JAMES SO TESTIFIED;  AND HIS TESTIMONY WENT UNREBUTTED.
 
    /5/ THE PERTINENT STATUTORY PROVISIONS ARE AS FOLLOWS:
 
    SECTION 7116(A) PROVIDES THAT " . . . IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY -
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF ANY
 
    RIGHT UNDER THIS CHAPTER;  . . . OR (8) TO OTHERWISE FAIL OR REFUSE
 TO COMPLY WITH ANY
 
    PROVISION OF THIS CHAPTER."
 
    SECTION 7114(A)(2)(B) PROVIDES THAT:  "AN EXCLUSIVE REPRESENTATIVE OF
 AN APPROPRIATE UNIT
 
    IN AN AGENCY SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT - .
 . . (B) ANY EXAMINATION
 
    OF AN EMPLOYEE IN THE UNIT BY A REPRESENTATIVE OF THE AGENCY IN
 CONNECTION WITH AN
 
    INVESTIGATION IF - (I) THE EMPLOYEE REASONABLY BELIEVES THAT THE
 EXAMINATION MAY RESULT IN
 
    DISCIPLINARY ACTION AGAINST THE EMPLOYEE;  AND (II) THE EMPLOYEE
 REQUESTS REPRESENTATION."
 
    SECTION 7116(D) PROVIDES THAT " . . . ISSUES WHICH CAN BE RAISED
 UNDER A GRIEVANCE
 
    PROCEDURE MAY, IN THE DISCRETION OF AGGRIEVED PARTY, BE RAISED UNDER
 THE GRIEVANCE PROCEDURE
 
    OR AS AN UNFAIR LABOR PRACTICE UNDER THIS SECTION, BUT NOT UNDER BOTH
 PROCEDURES." /6/ IN
 
    CUSTOMS, THE UNION STEWARD WAS TOLD TO REMAIN SILENT DURING A PORTION
 OF THE INTERVIEW;  AND HE DID SO.
 
    /7/ WEINGARTEN AROSE UNDER THE NATIONAL LABOR RELATIONS ACT AND
 SERVED AS A PROTOTYPE FOR SECTION 7114(A)(2)(B), AS HAS BEEN RECOGNIZED
 BY THIS AUTHORITY IN SUCH CASES