10:0604(102)CA - Navy, Portsmouth Naval Shipyard, Portsmouth, NH and Federal Employees MTC -- 1982 FLRAdec CA



[ v10 p604 ]
10:0604(102)CA
The decision of the Authority follows:


 10 FLRA No. 102
 
 DEPARTMENT OF THE NAVY
 PORTSMOUTH NAVAL SHIPYARD
 PORTSMOUTH, NEW HAMPSHIRE
 Respondent
 
 and
 
 FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO
 Charging Party
 
                                            Case Nos. 1-CA-142
                                                      1-CA-192
                                                      1-CA-199
                                                      1-CA-202
 
                            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 alleged in the consolidated complaint,
 and recommending that it be ordered to cease and desist therefrom and
 take certain affirmative action.  The Judge found that the Respondent
 had not engaged in other unfair labor practices alleged in the
 consolidated complaint, and recommended dismissal of those portions of
 the consolidated complaint.  Thereafter, the General Counsel and the
 Respondent filed exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  /1/ Upon consideration of
 the entire record in this case, the Authority hereby adopts the Judge's
 findings, conclusions and recommendations as modified herein.  /2/
 
    With respect to the complaint in Case No. 1-CA-199 the Judge, relying
 on alternative theories, found no violation of section 7116(a)(1) and
 (5) of the Statute with respect to Respondent's issuance of a new
 "Shipyard Instruction" relating to "Environmental and Night Shift
 Differentials for Wage Employees." In agreement with the Judge, the
 Authority finds that upon notification by the Respondent of its intent
 to issue the new instruction, the Union, pursuant to the terms of the
 parties' collective bargaining agreement, had elected only to "discuss,"
 as opposed to "negotiate" over, the matter and did in fact engage in
 such discussions with the Respondent on three separate occasions.  As
 further found by the Judge, when the third meeting concluded with the
 parties still in disagreement over the content of the new instruction,
 the Union noted that it had the contractual right to convert the
 discussions into negotiations and further informed the Respondent that
 publication of the "Shipyard Instruction" without including the material
 desired by the Union would result in the filing of an unfair labor
 practice charge.  Notwithstanding the above, the Union did not request
 negotiations until after the issuance and implementation of that
 instruction approximately two months later.  Based on the above
 circumstances, the Authority finds, in agreement with the Judge's
 conclusion, that the Respondent had fulfilled its obligation pursuant to
 the terms of the parties' collective bargaining agreement and therefore
 did not violate section 7116(a)(1) and (5) of the Statute as alleged.
 /3/
 
    In Case No. 1-CA-202, the Authority agrees with the Judge that the
 Respondent's action in unilaterally terminating the past practice of
 weekly meetings between certain management and Union officials which
 aided in the administration of the collective bargaining agreement /4/
 was a violation of section 7116(a)(1) and (5) of the Statute.  /5/
 However, contrary to the Judge, the Authority finds that the
 Respondent's termination of such weekly meetings because a Union
 steward, acting on behalf of the Union, filed an unfair labor practice
 charge against the Respondent, did not constitute" discipline or
 discrimination "against an employee" within the meaning of section
 7116(a)(4) of the Statute.  /6/
 
                                   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 Department of the Navy, Portsmouth Naval
 Shipyard, Portsmouth, New Hampshire, shall:
 
    1.  Cease and desist from:
 
          (a) Terminating regularly scheduled weekly meetings attended by
       Shop 64 Union Stewards and the Production Superintendent of Shop
       64, without first notifying the Federal Employees Metal Trades
       Council, AFL-CIO, the employees' exclusive representative, and
       affording such representative the opportunity to bargain on the
       decision to effectuate such a change in conditions of employment.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action:
 
          (a) Rescind the October 25, 1979 order terminating the
       regularly scheduled weekly meetings attended by Shop 64 Union
       Stewards and the Shop 64 Production Superintendent and, upon
       request of the Federal Employees Metal Trades Council, AFL-CIO,
       the employees' exclusive representative, negotiate with the
       exclusive representative concerning the decision to terminate such
       regularly scheduled weekly meetings.
 
          (b) Post at its facilities at the Portsmouth Naval Shipyard,
       Portsmouth, New Hampshire, 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 Commander,
       Portsmouth Naval Shipyard, or his designee, and shall be posted
       and maintained for 60 consecutive days thereafter, in conspicuous
       places, including bulletin boards and other places where notices
       to employees are customarily posted.  Reasonable steps shall be
       taken to insure that said Notices are not altered, defaced, or
       covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director of Region I, 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 complaints in Case Nos.
 1-CA-142, 1-CA-192 and 1-CA-199 in their entirety, and the complaint in
 Case No. 1-CA-202 insofar as it alleges a violation of section
 7116(a)(4) of the Statute, be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., December 3, 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 terminate regularly scheduled weekly meetings attended by
 Shop 64 Union Stewards and the Production Superintendent of Shop 64,
 without first notifying the Federal Employees Metal Trades Council,
 AFL-CIO, the employees' exclusive representative, and affording such
 representative the opportunity to bargain on the decision to effectuate
 such a change in conditions of employment.
 
    WE WILL NOT, in any like or related manner, interfere with, restrain,
 or coerce any employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL rescind the October 25, 1979 order terminating the regularly
 scheduled weekly meetings attended by Shop 64 Union Stewards and the
 Shop 64 Production Superintendent and, upon request of the Federal
 Employees Metal Trades Council, AFL-CIO, the employees' exclusive
 representative, negotiate with the exclusive representative concerning
 the decision to terminate such regularly scheduled weekly meetings.
                                       (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, Region I, Federal Labor Relations Authority, whose
 address is:  441 Stuart Street, 9th Floor, Boston, MA 02116, and whose
 telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    A. Gene Niro, Esquire
          For the Respondent
 
    Richard D. Zaiger, Esquire
    Richard B. Blazer, Esquire
          For the General Counsel
 
    Before:  LOUIS SCALZO
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    These cases arose as unfair labor practice proceedings initiated
 under the provisions of the Federal Service Labor-Management Relations
 Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter called "the
 Statute") and the Rules and Regulations issued thereunder.
 
    The complaint in Case No. 1-CA-199, issued on January 31, 1980, by
 the Regional Director, First Region, Federal Labor Relations Authority,
 alleged that the Portsmouth Naval Shipyard, Portsmouth, New Hampshire
 (hereinafter called the Respondent or Shipyard), violated Sections
 7116(a)(1) and (5) of the Statute by issuing Naval Shipyard Instruction
 12532.1A (175), without furnishing the Federal Employees Metal Trades
 Council (hereinafter called the Charging Party, Council, or Union)
 notice and an opportunity to bargain concerning such change.
 
    On January 28, 1980, the Regional Director issued a consolidated
 complaint against the Respondent in Case Nos. 1-CA-142, 1-CA-192, and
 1-CA-202.  In case No. 1-CA-142, it was alleged that on or about August
 17, 1979, Respondent, through, its agent Joseph Belmont violated Section
 7116(a)(1) of the Statute stating to James Sargent, a bargaining unit
 employee, that Sargent was being discharged for "going to the Union
 instead of reporting to his supervisor," and further that on the same
 date, the Respondent, through Joseph Belmont, violated Sections
 7116(a)(1) and (2) of the Statute by discharging James Sargent.
 
    In Case No. 1-CA-192, it was alleged that the Respondent, through its
 agent Wendell Kinney violated Section 7116(a)(1) of the Statute on or
 about August 21, 1979, by threatening to impose harsher discipline on
 Norman Boucher because of Norman Boucher's status as a Union steward,
 and further that the Respondent, through its agent, J. W. Summey,
 violated Sections 7116(a)(1) and (2) of the Statute on or about August
 24, 1979, by issuing a notice of a proposed five day suspension from
 work, and by thereafter suspending Norman Boucher for five days without
 pay because of Norman Boucher's status as a Union steward.  /7/
 
    In Case No. 1-CA-202 it was alleged that on or about October 25,
 1979, the Respondent through its agent James Wakefield violated Sections
 7116(a)(1) and (4) of the Statute by announcing the cancellation of
 weekly meetings attended by Wakefield and certain Union stewards because
 the Union filed an unfair labor practice charge under the Statute;  and
 further that on or about October 25, 1979, the Respondent through its
 agent James Wakefield violated Sections 7116(a)(1) and (5) of the
 Statute by "eliminating weekly meetings held between Wakefield and Union
 stewards without furnishing the Union with notice and/or an opportunity
 to bargain concerning such change."
 
    On May 6, 1980, the Regional Director consolidated Case No. 1-CA-199
 with a previous consolidation of Case Nos. 1-CA-142, 1-CA-192, and
 1-CA-202.  As a defense to the allegations in Case No. 1-CA-199, the
 Respondent asserts that the Union, under the provisions of Article 6 of
 the parties' collective bargaining agreement, waived the right to
 negotiate concerning changes embraced in Navy Shipyard Instruction
 12532.1A (175);  that the parties merely agreed to "discuss" the
 Instruction in accordance with the provisions of Article 6, and
 thereafter the Respondent complied with pertinent provisions of the
 collective bargaining agreement;  that in any event, the Respondent did
 in fact meet any obligation to bargain;  and lastly that the case should
 be dismissed because it involves essentially differing interpretations
 of the rights and obligations of the parties under the terms of the
 collective bargaining agreement, and should be resolved through
 established grievance and arbitration procedures.
 
    In Case No. 1-CA-142, the Respondent argues that the General Counsel
 failed to sustain its burden of proving by a preponderance of the
 evidence that Joseph Belmont told James Sargent that Sargent was being
 discharged for going to the Union instead of reporting to his
 supervisor, and further that the burden of proof was not met with
 respect to allegations that James Sargent was discharged for having
 sought Union assistance.
 
    Similarly, in Case No. 1-CA-192, the Respondent takes the position
 that the General Counsel failed to show by a preponderance of the
 evidence that Wendell Kinney threatened Norman Boucher with harsher
 discipline because of Norman Boucher's position as a Union steward, and
 that there was a further failure of proof with regard to allegations
 that harsher disciplinary action was taken against Norman Boucher
 because of his status as a Union steward.
 
    In Case No. 1-CA-202, the Respondent argues that James Wakefield's
 discontinuance of regular weekly meetings with shop stewards was
 precipitated by the Union's prior breach of an agreement relating to the
 meetings, and not with the intent of disciplining or otherwise
 discriminating against employees because of the filing of an unfair
 labor practice charge;  and further that discontinuance of the meetings
 under the circumstances involved did not constitute a unilateral change
 in working conditions.
 
    The Respondent and the General Counsel were represented by counsel
 and were afforded full opportunity to be heard, adduce relevant
 evidence, and examine and cross-examine witnesses.  Post-hearing briefs
 were received from counsel representing the General Counsel and counsel
 representing the Respondent.  These have been duly considered.  /8/
 Based upon the entire record herein, including my observations of the
 witnesses and their demeanor, the exhibits and other relevant evidence
 adduced at the hearing, /9/ and the briefs, I make the following
 findings of fact, conclusions and recommendations:
 
                          Case No. 1-CA-199 /10/
 
    By letter dated October 5, 1978 the Respondent provided the Union
 with notice of plans to publish and implement a new Shipyard Instruction
 relating to "Environmental and Night Shift Differentials for Wage
 Employees," in order to establish new policies for administering
 environmental differentials and night shift pay for bargaining unit
 employees (R. Exh. 5(a)).  A copy of the proposed Instruction was
 supplied to the Council.  /11/
 
    By letter dated October 11, 1978, John P. O'Brien, President of the
 Union requested that the Respondent meet with the Union "to discuss" the
 new Instruction in accordance with the provisions of Article 6, Section
 2 of the collective bargaining agreement governing the labor relations
 of the parties (R. Exh. 5(b)).  The agreement, in effect during all
 periods in issue herein, is included as part of the record as G.C. Exh.
 3.
 
    Under the provisions of Article 6, Section 2, the Council was
 provided the right to either "request a meeting to discuss the
 provisions of the draft directive or request that the Shipyard meet and
 confer (negotiate) on the negotiable provisions of the draft directive."
 Section 3 limited the grant of official time to one half of the time
 spent in negotiations if the Council elected to meet and confer, and
 Section 4(a) provided that meetings held following a Council request
 "for the purpose of discussion," would, be exempt from the official time
 arrangements prescribed in Section 3, but that in the event the Council
 subsequently requested negotiations on issues discussed, "all time spent
 in the discussion and negotiation phases will be subject to the half
 time requirement in Section 3 . . . ."
 
    Section 5(a) defined the phrase "meet and confer or negotiate," and
 Section 5(b) defined the term "discuss," as follows:
 
          a.  Meet and confer or negotiate means bilateral exploration of
       an issue and exchange of views and reducing to writing any mutual
       agreement reached if requested by either party.  However, it is
       agreed and understood that failure to reach agreement will not
       preclude management from taking actions if such failure to agree
       would in effect negate the exercise of those rights expressed in
       either Section 11(b) or Section 12(b) of Executive Order 11491, as
       amended.  Furthermore, if the parties reach impasse on a matter
       other than those covered by either Section 11(b) or Section 12(b)
       of Executive Order 11491, as amended, the Employer may
       unilaterally impose changes in working conditions which do not
       exceed the offers or proposals made in the prior negotiations.
       The Employer agrees to advise the Council prior to making such
       changes.
 
          b.  Discuss means that the Employer will provide the reasons
       why a certain course of action is considered necessary and the
       alternatives available, if any.  The Council will be afforded, at
       this discussion, the opportunity to comment or make
       recommendations on these courses of action or alternatives they
       may wish to put forth.
 
    During the month of October 1978, the parties met for the first time
 concerning the proposed change.  John P. O'Brien, the Council's
 President, was the spokesman for Council representatives, and Joseph W.
 L. Mason, a Labor Relations Specialist was the spokesman for
 representatives of the Respondent.  The parties agreed that they would
 discuss issues raised on official time, and that the Council could, if
 it so desired, escalate the discussion into actual negotiations under
 the terms of the collective bargaining agreement.  The parties discussed
 the proposed Shipyard Instruction page by page and the Council presented
 its views relating to the proposed changes.  The issues posed were not
 resolved during this first meeting.
 
    A second meeting was held in February of 1979.  At this meeting the
 Respondent's representatives provided Council representatives with their
 response to concerns expressed by the Council during the October 1978
 meeting.  There was some agreement on certain issues, and further
 discussion concerning areas of disagreement.
 
    On August 10, 1979, the parties met again and discussed a revised
 version of the Shipyard Instruction (R. Exh. 4, Tr. 31-33, 36-38).  The
 parties were unable to resolve a number of remaining issues.  The
 Council insisted upon the inclusion of certain documents with the
 issuance of the Instructions;  wanted immediate supervisors to have the
 authority to make determinations regarding environmental pay;  and
 insisted upon the Council's definition of certain terms.  The Respondent
 presented the revised version of the Instruction as their final offer.
 While still discussing the subject, Mr. O'Brien declared that the
 parties had reached an impasse.  Mr. O'Brien explained that the issues
 might be resolved through mediation, and Mr. Mason said he did not think
 so.  Mr. O'Brien said that he had "to have something before we leave
 here." Mr. Mason said, "Well, let me get back to you on this, John." Mr.
 O'Brien stated that he did not have to consult with the Respondent
 further, that he could request that the parties negotiate on the
 subject;  and that he would file an unfair labor practice if the
 Respondent published the Instruction without including with the
 Instruction certain documents which the Council insisted should be
 issued as a part of the Instruction.  Again, there was further
 discussion of the Council position and then the meeting ended with Mr.
 O'Brien saying, "You make your move, and I'll make mine."
 
    Following the August 10th meeting, the Council did not request
 negotiations and the Respondent did not make any effort to contact the
 Council concerning the subject matter discussed.  On October 12, 1979,
 the Instruction was issued with an October 22, 1979 effective date (R.
 Exh. 4, G.C. Exh. 4, Tr. 34-35).  Upon learning of the implementation
 Mr. O'Brien phoned Mr. Mason to complain about the issuance, and to
 orally request that negotiations be scheduled.  /12/ This request was
 not made until on or about November 1, 1979, or after the effective date
 of the Instruction.
 
    By letter dated November 5, 1979, Mr. O'Brien requested that the
 Respondent enter into formal negotiations concerning the subject (R.
 Exh. 1).  The Respondent replied in a letter dated November 28, 1979,
 stating that the Instruction had been fully discussed under Article 6 of
 the negotiated agreement;  that the Council had the right to elevate the
 discussions to negotiations, but elected not to do so;  and that the
 right to negotiate concerning the subject expired with the publication
 of the Instruction (R. Exh. 2).
 
    Mr. O'Brien acknowledged that it had been a regular practice for the
 Council to utilize the discussion procedure rather than the negotiation
 procedure in order to take advantage of the contractual provision
 exempting the Council from the limitation on the use of official time.
 This practice was based upon the understanding that the Council could
 convert discussions into formal negotiations if the Council so desired
 (Tr. 17-18).  Although Mr. O'Brien expressed his personal view that the
 parties were in fact engaged in actual negotiations on August 10, 1979,
 he also made it clear that some further action on his part would have
 been needed to perfect the Council's right to negotiate under the
 circumstances presented (Tr. 18).
 
                             Case No. 1-CA-192
 
    This case originated as a result of a five-day suspension of Norman
 Boucher, a bargaining unit member because of an alleged improper attempt
 to cause the United States Department of Labor to award workmen's
 compensation benefits to Roland Boucher for a work related heart
 condition.  /13/ Both Norman Boucher and Roland Boucher were employed as
 metal inspectors at the Respondent's facility, and both served as Union
 stewards.  Norman Boucher was suspended for encouraging fellow employees
 to sign a statement "which contained numerous and obvious
 misstatements," and for personally composing, signing and submitting "a
 statement without regard to accuracy of facts." (G.C. Exh. 7).
 
    The record disclosed that John William Summey, Head of Respondent's
 Non-Destructive Test Branch, assigned General Foreman Wendell Kenney to
 conduct an investigation into Roland Boucher's compensation claim
 because of suspicions that statements submitted therein were not true.
 The two statements involved were both prepared by Roland Boucher in
 March or April of 1979, about a year after events referred to in the
 statements were alleged to have occurred.  They were both executed in
 late March or early April 1979.  G.C. Exh. 5, a statement describing
 observations of Roland Boucher's sick condition on May 8, 1978, was
 signed by Norman Boucher.  Norman and Roland Boucher subsequently
 acknowledged that Norman Boucher's statement should have reflected the
 date of May 5, 1978, rather than May 8, 1978.  The statement as amended
 was designed to evidence the fact that Norman Boucher had worked with
 Roland Boucher all day on May 5, 1978, in the tanks of the Submarine USS
 Tecumseh, and that Norman Boucher had observed Roland Boucher in a
 sickly condition after leaving the tanks on May 5, 1978.
 
    General Council Exhibit 6, a statement signed by nine co-workers,
 reflected representation that the co-workers observed Roland Boucher's
 sickly state on May 8, 1979, and further that Roland Boucher "remarked
 that the pain he had experienced on Friday, May 5, 1978 was getting
 worse, (left arm, shoulder, throat and especially the chest area)." This
 statement was signed by Gus Benitez, Michael Linscott and Richard
 Thompson among others.
 
    As a result of the investigation, Wendell Kinney convened a meeting
 on August 21, 1979 for the purpose of apprising Norman Boucher that
 disciplinary action was contemplated against him because of his
 involvement with the two statements.  The meeting was attended by
 Kinney, Norman Boucher and Chief Steward Ray Thurber.  Kinney advised
 that he was going to take disciplinary action because of the submission
 of false statements.  Both Norman Boucher and Thurber testified that
 during the conversation Kinney indicated that he would be harsher on
 Norman Boucher because Norman Boucher was a Union steward, and as such
 should have presented a better example for "the troops." Kinney
 categorically denied making any statement or statements which could have
 been construed as a basis for concluding that he planned to take harsher
 disciplinary action against Norman Boucher because of his status as a
 Union steward, and further that Kinney did not mention Norman Boucher's
 status as a Union Steward (Tr. 139-140, 151, 153-154, 156).  He could
 not recall whether the words "Union" or "steward" were used in some
 other context (Tr. 148, 151, 156).
 
    On or about August 24, 1979, Norman Boucher was given a Notice of
 Proposed Disciplinary Action dated August 24, 1979, involving a proposed
 five day suspension.  The notice cited the reasons for the proposed
 disciplinary action.  It was noted that Shipyard records revealed that
 relevant work in the tanks in the USS Tecumseh, was last performed on
 April 25, 1978, and not May 5, 1978;  that Norman Boucher advised
 Wendell Kinney on August 21, 1979, that he was unsure of his whereabouts
 on May 5, 1978, and that he could not remember exactly what happened a
 year before, but that he did remember seeing Roland Boucher in distress
 with chest and arm pain;  that Norman Boucher neither omitted nor denied
 responsibility for circulation of a statement for signing by other
 employees on behalf of Roland Boucher;  that three of the employees who
 signed the statement (Richard Thompson, Gus Benitez and Michael
 Linscott) stated that Norman Boucher and Roland Boucher requested them
 to sign on behalf of Roland Boucher;  and that verification of
 attendance and work shift assignments of Thompson and Benitez gave rise
 to inquiry concerning the method used to acquire the signatures of these
 two employees.
 
    The investigation of the case by Summey and Kinney disclosed that
 Norman Boucher's statement was not true.  Metal inspection work of the
 type performed by Norman and Roland Boucher had been completed on the
 USS Tecumseh prior to May 2, 1978.  Thus Norman Boucher and Roland
 Boucher would have had no reason to be performing metal inspection work
 in the tanks on May 5, 1978 or May 8, 1978, because no such work was
 then in progress.  Furthermore, there was no record of metal inspection
 work being performed by Norman Boucher or Roland Boucher during the
 dates in question.  /14/ Time record cards corroborated other proof that
 Norman and Roland Boucher were not, as claimed in Norman Boucher's
 statement, engaged on work in the tanks of the USS Tecumseh on the date
 involved, and the time records of Gus Benitez, and Richard Thompson
 signers of the joint statement, revealed that they were not working at
 the Shipyard at 7:10 a.m. on May 8, 1978, the time and date on which
 they allegedly observed Roland Boucher in distress.  /15/
 
    During the hearing Norman and Roland Boucher denied that Norman
 Boucher was present during Roland Boucher's efforts to find co-workers
 who would sign the statement, and both denied that Norman Boucher
 participated with Roland Boucher in urging co-workers to sign.  However,
 the testimony of Gus Benitez, Richard Thompson and Michael Linscott
 effectively contradicted Norman and Roland Boucher on this factual
 issue.  Benitez's testimony established that he did not want to sign
 because he "wasn't sure about the dates that appeared on the statement
 and I was working the second shift, and I didn't think it was a good
 idea that I sign the statement." (Tr. 161-162).  However, as a result of
 Norman Boucher's urging, and position as a Union steward, Benitez signed
 the statement.  Richard Thompson recalled that Norman Boucher presented
 the statement and stated that he signed it because Norman Boucher
 requested him to do so.  /16/ Michael Linscott testified that the
 document was presented to him by Norman and Roland Boucher.  /17/
 
    The decision to suspend Norman Boucher for a five day period was made
 by Summey upon the recommendation of Wendell Kinney.  In contrast,
 Summey decided that Gus Benitez should receive a one day suspension and
 Richard Thompson be issued a letter of reprimand.  Summey explained that
 the harsher action was taken by him against Norman Boucher because he
 caused others to sign a statement which set forth false information, and
 because there was, in addition, a serious misrepresentation of fact in
 Norman Boucher's statement.  Summey explained further that he decided on
 lesser penalties for Gus Benitez and Richard Thompson because their
 offense merely involved signing a statement reflecting observations
 which they did not have an opportunity to see.  /18/
 
    Prior to the actual suspension of Norman Boucher, John Murdock
 replaced Summey.  He reviewed the prior decision to suspend Norman
 Boucher, met with Norman Boucher and Ray Thurber, reheard the case, and
 affirmed the decision previously made by Summey to suspend Norman
 Boucher for five days.  The suspension was finally imposed in December
 of 1979.
 
                             Case No. 1-CA-202
 
    For a period in excess of one year prior to October of 1979, Union
 stewards assigned to Shop 64 in the Shipyard met regularly each Thursday
 afternoon with James Wakefield, Production Superintendent of Shop 64, to
 discuss labor relations matters of mutual concern.  The practice was
 initiated at the request of Wakefield with the full cooperation of the
 Union.  Union stewards attending included Ray Thurber, Robert Maquire
 and one Hugh Bailey.  One purpose of the meeting as explained by Thurber
 was, "to resolve problems that we have within the Shop without going
 into formal grievance procedures and things like that . . . ." (Tr.
 186).  The parties agreed that they would meet informally at the
 scheduled time, that there would be no formal record of the meetings and
 that the parties would "frankly and openly discuss (matters) without
 fear of reprisal or formal action." (Tr. 202).  /19/
 
    Prior to October 18, 1979 Superintendent Wakefield met with
 supervisors under his jurisdiction.  During the meeting he made critical
 comments relating to the handling of an arbitration case by Union and
 management officials in September of 1979.  Union officials were
 specifically criticized for being unprepared to present their side of
 the arbitration case.
 
    Subsequently, at a regularly scheduled stewards meeting prior to
 October 18, 1979, Superintendent Wakefield also voiced his criticism of
 the Union's and management's handling of the arbitration case.  At the
 meeting in question Steward Robert Maquire was the only steward in
 attendance.  On October 18, 1979, Wakefield again met with Shop 64 Union
 stewards.  During the meeting, Ray Thurber asked Wakefield whether he
 had made disparaging remarks concerning the Union's handling of the
 arbitration case.  Wakefield admitted that he had in fact made such
 remarks at his meeting with supervisors, and at the prior stewards
 meeting attended by Union Steward Robert Maquire and Wakefield.  Thurber
 advised that he intended to file an unfair labor practice charge against
 Wakefield for making the critical comments.
 
    On October 23, 1979, Thurber filed an unfair labor practice charge in
 Case No. 1-CA-171, alleging that Wakefield, on or about September 5,
 1979, and thereafter, told bargaining unit employees that the Union had
 performed a poor job of presenting the arbitration case (G.C. Exh. 9).
 It was charged that Wakefield's statements "and other acts" were
 violative of Section 7116(a)(1) and (5) of the Statute.  The charge
 filed in Case No. 1-CA-171, was dismissed by the Regional Administrator
 (R. Exh. 7).
 
    On October 25, 1979, a regularly scheduled stewards meeting was
 attended by Wakefield, Robert Maquire and Ray Thurber.  At the
 conclusion of the meeting Wakefield advised that the regular weekly
 meetings were being discontinued because an unfair labor practice charge
 had been filed based upon comments made by Wakefield at a prior stewards
 meeting.  He explained that he did not feel that he could speak freely
 in the future, and that the meetings no longer served a useful purpose.
 Wakefield also stated that he was of the opinion that in taking official
 action against him the Union had violated the informal ground rules
 governing the meetings, and that his informal unofficial comments had
 been used to develop formal charges against him.  He said that he would
 still be available for meetings upon request of the Union.  /20/
 Wakefield acknowledged during the hearing that he discontinued the
 meetings because the Union had filed an unfair labor practice charge
 against him in Case No. 1-CA-171.
 
                             Case No. 1-CA-142
 
    The consolidated complaint alleged that on or about August 17, 1979,
 Respondent, through Joseph Belmont, Shop Superintendent, Shop 71,
 violated Section 7116(a)(1) of the Statute by stating to James Sargent,
 a bargaining unit employee, that Sargent was being discharged for "going
 to the Union instead of reporting to his supervisor," and further that
 on the same date, Belmont precipitated violations of Section 7116(a)(1)
 and (2) of the Statute by discharging Sargent.  Since events leading up
 to the termination are material and relevant they are set forth in
 detail.
 
    Sargent was employed by the Respondent as an equipment cleaner during
 the period May 7, 1979 through August 30, 1979.  He was supervised by
 Valmore Bergeron during the period leaving up to his termination.
 Bergeron became dissatisfied with Sargent's work performance and
 reported his conclusions to Joseph Belmont, his superior.  In this
 regard Belmont received a report on July 10, 1979, that Sargent was not
 performing work assigned.  On July 27, 1979 he received a report that
 Sargent could not be located at the job site, and that he had provided
 an inadequate reason for the period of his absence.  On August 2, 1979,
 Bergeron again reported to Belmont that Sargent was not performing work
 assigned, that he had taken excessive time for lunch, and that he was
 found laying down on the deck.  /21/
 
    Belmont instructed Bergeron to have a discussion with Sargent with a
 Union steward in attendance to represent Sargent, and thereafter an
 investigation of Sargent's conduct was initiated by Bergeron.  On or
 about August 5, 1979, Bergeron apprised Sargent that disciplinary action
 against him was being considered.  Sargent informed Bergeron that his
 poor performance was caused by a prior job related disability caused by
 the inhalation of toxic fumes.  /22/
 
    On August 7 or 8, 1979, Bergeron met with Sargent in the presence of
 a Union representative.  Sargent was charged with failing to follow
 proper instructions and loafing.  He was informed that disciplinary
 action against him was being contemplated.  Sargent advised Bergeron
 that he planned to resign that same day.
 
    On August 8, 1979, Bergeron orally recommended to Belmont that
 Sargent be terminated whether he resigned or not.  After discussing
 Bergeron's reasons Belmont agreed to look into the matter.  On the same
 date he informed Personnel that Sargent was going to resign.  He
 instructed Personnel that Sargent's resignation papers should reflect
 that he had resigned with disciplinary action pending.  /23/ Bergeron
 did not resign as anticipated on August 8, 1979.
 
    Thereafter Sargent remained away from work for a period of days.  He
 testified that he phoned in to report that he was ill.  On August 15,
 1979, Sargent returned to the Shipyard and informed Chief Steward
 Richard Roberge of his difficulties, particularly noting that he was
 impaired as a result of inhaling toxic fumes, and that he had a conflict
 with Valmore Bergeron, his supervisor.  Roberge agreed to help and
 arranged for Sargent to meet with Belmont that same day.  Roberge also
 arranged for Sargent to be represented by Union Steward Claude Boucher
 during the meeting with Belmont.
 
    The meeting with Belmont on August 15, 1979 was held at about 8:00
 a.m.  Boucher asked for permission to provide new evidence for use in a
 reconsideration of action commenced to remove him.  Belmont agreed to
 consider any new evidence.  Boucher explained that there was a
 personality conflict between Bergeron and Sargent, that Sargent did not
 like working on the midnight shift, and that Sargent's work performance
 was adversely affected by the prior work related exposure to poisonous
 fumes.  Boucher also wanted to marshal further support in aid of
 Sargent.  After hearing Boucher, Belmont did not reverse his decision,
 but did agree to place Sargent on the day shift under Peter Moorenovich,
 another supervisor.  He also arranged for Sargent to visit the
 dispensary that same day, and suggested that Sargent have a physical
 examination in order to help in establishing his compensation claim.
 /24/
 
    Belmont instructed Sargent to report to Peter Moorenovich, his new
 supervisor, after the meeting;  and arrangements were also made for him
 to go to the Naval Regional Medical Clinic to pursue his compensation
 claim.  Sargent admitted during his account of the meeting that Belmont
 instructed him to report to Moorenovich after going to the clinic, and
 further that Belmont instructed him to report to Moorenovich on August
 16, 1979 also (Tr. 245).
 
    Following the meeting with Sargent and Boucher, Belmont visited the
 Personnel Office and reviewed records which had precipitated Bergeron's
 recommendation to remove Sargent.  Belmont also phoned Moorenovich at
 about noon on August 15, 1979, and told him to expect Sargent to report
 to Moorenovich following Sargent's visit to the clinic.  He requested
 Moorenovich to assign work to Sargent.  At Belmont's request Moorenovich
 also agreed to facilitate any request that Sargent might make for a
 Union representative.  Moorenovich subsequently phoned Belmont on August
 15th to report that Sargent had not reported to him as directed.
 
    The record disclosed that Sargent did in fact visit the clinic on
 August 15, 1979, and that he was dissatisfied with medical advice he
 received there to the effect that he should not be experiencing
 symptoms.  He left to see Dr. Cavari, a private physician in Portsmouth,
 New Hampshire, but was unable to arrange an appointment that day.
 Sargent at first testified that he made an appointment to see Dr. Cavari
 on August 17, 1979, but later modified his testimony by stating that the
 appointment was for August 16th.  /25/
 
    Early on August 16, 1979, Belmont met with Bergeron and reviewed the
 case.  Between 7:30 a.m. and 8:00 a.m., Belmont decided to separate
 Sargent (Tr. 322).  Although Sargent was supposed to report to
 Moorenovich on August 16, 1979, he did not do so (Tr. 246-247).  /26/
 However, at about 10:00 or 10:30 a.m. Belmont observed Sargent with
 Chief Steward Richard Roberge in the Respondent's Industrial Relations
 Office.  He inquired concerning the nature of their business in the
 Industrial Relations Office and was told that they were perfecting
 Sargent's compensation claim.  Belmont inquired whether Sargent had
 reported to Moorenovich as instructed the previous day, and Sargent
 explained that he reported to the Union instead as "it was too late" in
 the day to report for work.  Belmont expressed irritation with Sargent
 because he had not reported to Moorenovich on the previous day, and
 because he had not reported to Moorenovich on August 16th.  He also
 expressed surprise to find Sargent in the Shipyard at that time without
 first having reported in to his supervisor.  Belmont instructed Sargent
 and Roberge that he wanted them to report to his office as soon as they
 had concluded their business relating to Sargent's compensation claim.
 
    The version of events outlined thus far closely follows the account
 supplied by Belmont.  Roberge testified that the meeting in question
 occurred after 3:00 p.m. on August 16th, and that Belmont instructed
 Sargent and Roberge to report to Belmont's office early the next morning
 (August 17th).  Sargent's initial account of the August 16th meeting
 also indicated that the meeting occurred late in the afternoon or August
 16th, and that Belmont requested Sargent to report to his office the
 next morning.  However, Sargent subsequently corroborated Belmont with
 respect to the earlier time of the Belmont, Roberge and Sargent meeting
 in the Industrial Relations Office (Tr. 244-245, 247).
 
    Both Sargent and Roberge also testified that during the August 16th
 meeting in the Industrial Relations Office they explained to Belmont
 that Sargent had been examined by a physician, that the physician had
 advised him not to work for one week, and that a sick leave slip was
 exhibited to Belmont.  Belmont denied that Sargent exhibited a sick
 leave slip to him during their discussion in the Industrial Relations
 Office.  The testimony of Sargent and Roberge with regard to the
 submission of a sick leave slip from a private physician must also be
 rejected in view of Roberge's later admission that at the time of this
 meeting, Sargent "intended" to obtain such a slip, but that he did not
 then have one (Tr. 268-269).  In view of these and other serious
 inconsistencies, and contradictions in Sargent's and Roberge's
 testimony, it must also be concluded that Belmont instructed Sargent and
 Roberge to report to his office upon the conclusion of their business,
 and not the next day.  /27/
 
    Sargent's initial account of what was said by Belmont at the
 termination meeting did not include a reference to the Union (Tr.
 242-243).  However, in response to the leading question:  "Did Mr.
 Belmont make any reference to the union at that time?", Sargent related
 that he was told by Belmont that Sargent "had no right to go to the
 union." (Tr. 243).  Sargent acknowledged that Belmont explained the
 statement, but Sargent could not recall details of the explanation (Tr.
 243).  During cross-examination Sargent again recounted details of the
 conversation but was extremely vague as to the content of any of
 Belmont's statements.  He acknowledged, that, "in my state of mind that
 day I just don't have the clear thought of what happened (Tr. 257).
 
    Roberge's account of Belmont's utterances during the termination
 meeting were to the effect that Belmont advised of his decision to
 terminate Sargent, that Belmont asked Sargent why Sargent had gone to
 the Union when he (Belmont) had instructed him to report back to his
 immediate supervisor on the 16th, that Belmont said he had instructed
 Sargent to report to his supervisor and that Sargent had not complied
 with his instruction, but had reported to the Union first, that Belmont
 had told Sargent he would help him, but that he was overstepping
 Sargent's previous request for resignation because Sargent had gone to
 the Union (Tr. 275).
 
    Belmont testified that he informed Sargent and Roberge that he had
 considered the information that they had presented to him the day
 before;  but that he had decided to terminate Sargent.  He related that
 he advised Sargent that he could still pursue his compensation claim.
 Belmont vehemently denied making any statement to the effect that he had
 promised to help but that Sargent had gone to the Union and was being
 terminated (Tr. 303).  In evaluating testimony relating to statements
 made by Belmont on this factual issue the testimony of Sargent and
 Roberge must be rejected in view of their demeanor and because of
 inconsistencies and contradictions noted.
 
    With regard to the foregoing, serious credibility questions relating
 to their testimony were posed by their accounts of an August 16, 1979,
 episode wherein Sargent was said to have reported to Moorenovich.
 According to Roberge, Sargent and Roberge reported to Moorenovich late
 in the afternoon on August 16, 1979, prior to meeting Belmont in the
 Industrial Relations a Office;  that they persuaded Moorenovich to
 accept a sick slip from Sargent's private physician;  and that
 Moorenovich sent Sargent home for a week based on the recommendation of
 Sargent's physician.  Sargent at first testified that he did not know
 whether Roberge accompanied him when he reported to Moorenovich (Tr.
 235).  He then testified that Roberge was not with him.  (Tr. 235).
 Sargent also testified that he reported to Moorenovich on August 16th
 before he visited the Industrial Relations Office on that date (Tr.
 239);  however, he later testified that he reported to Moorenovich after
 meeting Belmont on August 16th (Tr. 246).  At another point Sargent's
 testimony indicates that if he did report to Moorenovich, he did so late
 in the afternoon on Friday, August 17, 1979 (Tr. 236-237), or after
 Sargent was terminated.  Faced with inconsistencies of this nature,
 Belmont's account of the termination meeting must be credited.
 Similarly, Moorenovich's testimony denying that Sargent reported to him
 with Roberge must also be credited.  /28/
 
                        Discussion and Conclusions
 
                             Case No. 1-CA-199
 
    Both parties rely heavily upon the negotiated agreement in asserting
 their respective positions concerning the Respondent's obligation to
 bargain concerning the proposed Shipyard Instruction relating to
 environmental and hight shift differentials for wage employees;
 therefore, the issues essentially involve arguable interpretations of
 the negotiated agreement and are not properly the subject of an unfair
 labor practice proceeding.
 
    It is well settled that alleged violations of a negotiated agreement
 which concern differing and arguable interpretations of a negotiated
 agreement, as distinguished from alleged actions which constitute clear
 unilateral breaches of the agreement, are not deemed to be violative of
 the Statute.  In such cases the aggrieved party's remedy lies within the
 grievance and arbitration procedures in the negotiated agreement rather
 than through unfair labor practice procedures.  Oklahoma City Air
 Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (June
 27, 1980);  Social Security Administration District Offices in Denver,
 Pueblo and Greeley, Colorado, et al., 3 FLRA No. 10 (April 14, 1980);
 United States Department of Labor, 1 FLRA No. 107 (September 13, 1979);
 Department of Health, Education and Welfare, Social Security
 Administration, 1 FLRA No. 37 (May 9, 1979).  However, a party to a
 negotiated agreement acts at its peril in interpreting and applying such
 an agreement.  If the Respondent's interpretation of the agreement in
 this case was such that it resulted in a clear and patent breach of the
 terms of the agreement, then such interpretation could rise to the level
 of an unfair labor practice.  On the other hand, if Respondent's
 interpretation was arguably within the terms of the negotiated
 agreement, then such interpretation would merely be a matter of contract
 interpretation to be resolved through the parties' grievance and
 arbitration procedure.  Oklahoma City Air Logistics Center, Tinker Air
 Force Base, Oklahoma, supra.
 
    A review of the record discloses that the Council and Respondent,
 acting under the provisions of Article 6 of the collective bargaining
 agreement, agreed "to discuss" the provisions of the proposed
 Instruction in lieu of entering into negotiations under the provisions
 of Article 6.  Although the Council did recognize the right to transform
 the discussions into negotiations, and even indicated that the Council
 might exercise the contractual right to do so;  such a step was never
 taken by the Council.  Arguably, the Respondent's conduct during
 discussions and conduct concerning subsequent implementation of the
 proposed Instruction constituted action taken in accordance with a
 reasonable interpretation of Article 6 of the collective bargaining
 agreement.  In this regard, it is noted that the collective bargaining
 agreement provided for pre-implementation notice only in cases wherein
 the Council had previously requested the Respondent to "negotiate." It
 is therefore concluded, that the Respondent's conduct, would not,
 without more, constitute an unfair labor practice under the Statute.
 Instead, the issue posed should have been resolved under the parties'
 grievance and arbitration procedures.
 
    In addition to the foregoing it is observed that the collective
 bargaining agreement revealed, in clear and unmistakable language, a
 provision for a waiver of the right to negotiate.  That is, the parties
 clearly distinguished between the rights and obligations of the parties
 in situations wherein the parties agreed to "meet and confer or
 negotiate" as defined under Section 5(a) of Article 6, and those
 relating to situations wherein the parties agreed to "discuss" as
 defined in Section 5(b) of Article 6.  The record here discloses that
 the Council exercised such a waiver in this case.  Therefore, this case
 would also be subject to dismissal on the separate ground that the
 Council waived the right to negotiate concerning the proposed Shipyard
 Instruction.  Oklahoma City Air Logistics Center, Tinker Air Force Base,
 Oklahoma, supra.
 
                             Case No. 1-CA-192
 
    Proof of allegations pertaining to Case No. 1-CA-192 rest upon the
 testimony of Norman Boucher, Roland Boucher, and Ray Thurber.  The
 record reflects little or no basis for crediting the testimony of Norman
 and Roland Boucher.  When first interviewed by representatives of the
 Respondent in connection with the statement signed by Norman Boucher,
 both of these witnesses could not recall whether they had worked
 together on May 5, 1978, and evidence in the record indicates that work
 in the tanks of the USS Tecumseh was not in fact being performed on May
 5 or 8, 1978.  Yet during the hearing, both of these witnesses
 endeavored to establish that they did in fact perform work in the
 Tecumseh's tanks on May 5, 1978.  /29/
 
    During the Respondent's pre-disciplinary investigation, Norman
 Boucher would not admit or deny his involvement in Roland Boucher's
 efforts to obtain the signatures of co-workers.  Norman Boucher and
 Roland Boucher did subsequently deny unequivocally, Norman Boucher's
 involvement;  but were thereafter completely discredited in this regard
 by Benitez, Thompson and Linscott.
 
    An additional basis for questioning Norman Boucher's credibility
 stemmed from his testimony to the effect that Roland Boucher prepared
 the statement;  that Roland Boucher presented it to him;  that they did
 not discuss it all;  and that he then signed it without comment or
 inquiry.  In light of later proof of misrepresentations in the
 statement, this pattern of conduct also gives rise to serious questions
 concerning the value of Boucher's statement as well as his subsequent
 testimony at the hearing.
 
    Thurber's testimony must be considered in the light of the serious
 credibility problems posed by the testimony of Norman and Roland
 Boucher.  Also, it is noted that Wendell Kinney's demeanor and manner
 during testimony relating to the conversation which took place during
 the August 21, 1979 meeting, was forthright and sincere.  On the basis
 of this element, the testimony of Wendell Kinney is credited over that
 of Norman and Roland Boucher and Ray Thurber.  Accordingly, it must be
 concluded that the General Counsel has not met the burden of proving
 allegations in the Case No. 1-CA-192 by a preponderance of the evidence.
 
    Of interest here is the fact that in Wright Line, A Division of
 Wright Line, Inc., 251 NLRB No. 150 (1980), 105 LRRM 1169, The National
 Labor Relations Board concluded that in examining discrimination where
 an employer asserts a facially lawful business justification for the
 alleged discriminatory action, it would examine such cases through an
 analysis similar to that used by the United States Supreme Court in Mt.
 Healthy City School District Board of Education v. Doyle, 429 U.S. 274
 (1977).  The Board stated that in such cases the General Counsel must
 establish a prima facie case sufficient to support the inference that
 protected conduct was a motivating factor in the Respondent's action.
 Once this is established the burden arises for the Respondent to
 demonstrate that the same action would have taken place even absent
 protected conduct.  Assuming the applicability of this rule under the
 Statute, such an analysis would be unnecessary here as there was a
 failure of proof in the first instance.  That is, counsel for the
 General Counsel did not establish that protected conduct was a
 motivating factor.  However, assuming that such proof had been adduced,
 the record here does show that the reasons given for the disciplinary
 action were not pretextual, and further that the Respondent would have
 taken the same administrative action against Norman Boucher even in the
 absence of protected conduct.
 
                             Case No. 1-CA-202
 
    The record developed in this case shows a preponderance of the
 evidence that Wakefield cancelled the regular weekly meetings Because
 Chief Steward Ray Thurber furnished information used to supply the basis
 for an unfair labor practice charge in Case No. 1-CA-171.  This was
 admitted by Superintendent Wakefield.  He also admitted that he and
 representatives of the Council entered into an informal agreement
 providing for regular weekly meetings, and waiver, insofar as the weekly
 meetings were concerned, of the notice requirements of Article 6,
 Section 8 of the collective bargaining agreement.  It was acknowledged
 that this practice continued for a period in excess of one year.  The
 Respondent does not contend that the parties, specifically or generally,
 contemplated that the Union waived rights provided by the Statute or
 that the Council would not pursue unfair labor practice remedies
 provided by the Statute.
 
    Section 7116(a)(4) of the Statute provides that "it shall be an
 unfair labor practice for an agency . . . to discipline or otherwise
 discriminate against an employee because the employee has filed a
 complaint, affidavit, or petition, or has given any information or
 testimony under this chapter." Since Superintendent Wakefield terminated
 the practice of holding regularly scheduled meetings each Thursday
 because Thurber executed an unfair labor practice charge and because he
 supplied information in connection with a proceeding initiated under
 Chapter 71 of Title 5, it must be concluded that the conduct outlined
 constitutes a violation of Sections 7116(a)(1) and (4).  /30/
 
    It is also well settled that the parties may establish terms and
 conditions of employment by practice, or other forms of tacit or
 informal agreement, and that this, like other established terms and
 conditions of employment, may not be altered by either party in the
 absence of agreement or impasse following good faith bargaining.
 Department of the Navy, Naval Underwater Systems Center, Newport Naval
 Base, 3 FLRA No. 64, (June 16, 1980);  U.S. Department of Treasury,
 Internal Revenue Service, New Orleans District, A/SLMR No. 1043, 8
 A/SLMR 497 (1978).  Here, the Respondent admitted the existence of an
 informal agreement providing for the weekly meetings and a regularly
 established practice of convening such weekly meetings without specific
 notice of the meeting or statement of the subject matter to be
 discussed.  In view of the nature of the practice, particularly benefits
 pertaining to weekly meetings, it is determined that the evidence shows
 the establishment by informal agreement and practice, of a term and
 condition of employment.  The actions of the Superintendent Wakefield in
 terminating these weekly meetings without first notifying and bargaining
 in good faith with the Union also constituted violations of Sections
 7116(a)(1) and (5) of the Statute.
 
    During the hearing counsel for the General Counsel endeavored to
 amend the consolidated complaint to provide a specific basis for
 establishing Section 7116(a)(1) violations based upon Wakefield's
 statements on October 25, 1979.  However, since paragraphs 7(a) and 12
 of the consolidated complaint provided a basis for the introduction of
 such proof, the motion was denied.  Despite the foregoing, it is
 determined that Wakefield's statements standing alone would not
 constitute independent violations of Section 7116(a)(1) of the Statute.
 The expression of opinion regarding the Union's handling of an
 arbitration case in the context presented here would not be considered
 as interference, restraint or coercion of any bargaining unit employee.
 The statement contained no threats of penalty or reprisal which might
 have tended to impede the activity of Union officials who heard the
 comments.  The comments were not made to rank and file bargaining unit
 members, but to Union officials who had agreed to have such meetings for
 the purpose of discussing such matters with candor.  In cases of this
 nature the determination of whether Wakefield's statements were coercive
 must take into consideration all circumstances surrounding Wakefield's
 mention of the Union role during the prior arbitration proceeding.
 Internal Revenue Service, Mid-Atlantic Service Center, A/SLMR No. 421, 4
 A/SLMR 520 (April 26, 1974).  Considering the factual pattern presented
 here it is determined that there has been no showing of a Section
 7116(a)(1) violation based upon statements made by Wakefield during the
 October 25, 1979 stewards meeting.  See United States Army
 School/Training Center, Fort McClellan, Alabama, A/SLMR No. 42, 1 A/SLMR
 225 (May 14, 1971);  Internal Revenue Service, Mid-Atlantic Service
 Center, supra;  U.S. Department of Agricultural, Forest Service,
 Quachita National Forest, Hot Springs, Arkansas, A/SLMR No. 845, 4
 A/SLMR 444 (May 20, 1977).  /31/
 
                             Case No. 1-CA-142
 
    A careful examination of evidence introduced in connection with Case
 No. 1-CA-142, discloses that counsel for the General Counsel failed to
 establish by a preponderance of the evidence that the statements of
 Joseph Belmont to James Sargent on or about August 17, 1979 constituted
 independent violations of Section 7116(a)(1), and further that the
 discharge of James Sargent on the same date was violative of Sections
 7116(a)(1) and (2).  It is noted at the outset that inconsistencies,
 contradictions, and evasiveness noted in the testimony of James Sargent
 and Richard Roberge led to the conclusion that their testimony on key
 issues should not be credited.
 
    The record disclosed a pattern of prior misconduct on Sargent's part
 which generated a decision to terminate Sargent prior to the meeting
 alleged as a basis of the unfair labor practices in this case.  During
 the period leading up to the actual termination, Joseph Belmont
 exhibited an awareness and recognition of the need to protect Sargent's
 right to Union representation.  He made certain that he was represented
 by a Union official when Sargent's supervisor advised Sargent that
 disciplinary action was being contemplated against him.  Similar concern
 was evident in relation to subsequent meetings between management and
 Sargent.
 
    Following the meeting on August 15, 1979, Joseph Belmont decided to
 give Sargent another chance to avoid termination.  However, Sargent
 thereafter failed to comply with Belmont's instruction to report to a
 new supervisor on August 15, 1979.  Sargent admitted that he was
 instructed to report to his new supervisor and that he failed to do so.
 Belmont learned of Sargent's failure to report on August 15, 1979, and
 thereafter early in the morning on August 16, 1979, Belmont made a
 second decision to terminate Sargent.  Later in the morning on August
 16th he met Sargent and Chief Steward Richard Roberge, and learned that
 Sargent had again failed to report to his new supervisor on August 16th.
  In explaining his failure to report the day before (August 15th),
 Sargent mentioned that he had reported to the Union instead because it
 was too late in the day to report for work.  Thus, it was Sargent who
 first referred to the subject of Sargent reporting to the Union office
 and not Belmont.
 
    Sargent's account of what was said at the termination meeting on
 August 16th was extremely vague;  and Sargent could not recall Belmont's
 explanation of references made by Belmont to the Union.  Roberge's
 testimony to the effect that Belmont was discharging Belmont because he
 had reported to the Union was discredited by testimony relating to
 Sargent's failure to report to his new supervisor as instructed.  That
 is, it was the failure to report to a new supervisor and not Sargent's
 decision to go to the Union on August 15th which precipitated Belmont's
 final decision to terminate.
 
    In summary, it is determined that counsel for the General Counsel has
 not shown by a preponderance of the evidence that statements made to
 Belmont interfered with, restrained, or coerced any bargaining unit
 employee in the exercise of their rights under the Statute, or that
 Sargent was otherwise discriminated against in violation of the Statute.
  The record revealed instead that Sargent was terminated for
 non-pretextual business reasons.  Further, as in Case No. 1-CA-192, the
 record shows that the Respondent would have terminated James Sargent
 even in the absence of protected activity.
 
    Having found that the Respondent violated Sections 7116(a)(1)(4) and
 (5) in Case No. 1-CA-202, 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) Disciplining or otherwise discriminating against bargaining unit
 employees assigned to Shop 64, Portsmouth Naval Shipyard, Portsmouth,
 New Hampshire by terminating regularly scheduled weekly meetings
 attended by Shop 64 Union Stewards and the Production Superintendent of
 Shop 64, because of the filing of an unfair labor practice charge by a
 bargaining unit employee.
 
    (b) Terminating regularly scheduled weekly meetings attended by Shop
 64 Union Stewards and the Production Superintendent of Shop 64, without
 first notifying the exclusive bargaining representative and affording
 such representative the opportunity to bargain, to the extent consonant
 with law and regulation, on the decision to effectuate such a change.
 
    (c) In any like or related manner, interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to carry out the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Rescind the October 25, 1979 order terminating regularly
 scheduled weekly meetings attended by Shop 64 Union Stewards and the
 Production Superintendent of Shop 64.
 
    (b) Upon request, meet and confer with the exclusive bargaining
 representative, to the extent consonant with law and regulations,
 concerning the decision to terminate regularly scheduled weekly meetings
 attended by Shop 64 Union Stewards and the Production Superintendent of
 Shop 64, Portsmouth Naval Shipyard, Portsmouth, New Hampshire.
 
    (c) Post at its facilities 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, Portsmouth Naval Shipyard, and shall be posted and maintained
 for 60 consecutive days thereafter in conspicuous places, including all
 bulletin boards and other places where notices are customarily posted.
 Reasonable steps shall be taken to insure that said notices are not
 altered, defaced, or covered by any other material.
 
    (d) 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 Case Nos. 1-CA-142, 1-CA-192 and
 1-CA-199, be and hereby are, dismissed.
  
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  March 9, 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 rescind the October 25, 1979 order terminating regularly
 scheduled weekly meetings attended by Shop 64 Union Stewards and the
 Production Superintendent of Shop 64, Portsmouth Naval Shipyard,
 Portsmouth, New Hampshire.
 
    WE WILL NOT discipline, engage in acts of reprisal, or otherwise
 discriminate against bargaining unit employees assigned to Shop 64,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire by terminating
 regularly scheduled weekly meetings attended by Shop 64 Union Stewards
 and the Production Superintendent of Shop 64, because of the filing of
 an unfair labor practice charge by a bargaining unit employee.
 
    WE WILL NOT terminate regularly scheduled weekly meetings attended by
 Shop 64 Union Stewards and the Production Superintendent of Shop 64,
 without first notifying the exclusive bargaining representative and
 affording such representative the opportunity to bargain, to the extent
 consonant with law and regulations, on the decision to effectuate such a
 change.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in their rights assured by the Federal Service
 Labor-Management Relations Statute.
 
    WE WILL upon request, meet and confer with the exclusive bargaining
 representative to the extent consonant with law and regulations,
 concerning the decision to terminate regularly scheduled weekly meetings
 attended by Shop 64 Union Stewards, and the Production Superintendent of
 Shop 64, Portsmouth Naval Shipyard, Portsmouth, New Hampshire.
                                       (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, 8th Floor, Boston, MA 02116, and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In Case No. 1-CA-202 the Judge denied a motion by the General
 Counsel to amend the complaint to include an allegation that certain
 statements made by a supervisor violated section 7116(a)(1) of the
 Statute.  The Authority notes that no exception was taken to this
 ruling.
 
 
    /2/ Noting particularly the absence of exceptions with respect
 thereto, the Authority adopts the Judge's decision that the unfair labor
 practices alleged to have been committed by the Respondent in Case Nos.
 1-CA-142 and 1-CA-192 be dismissed in their entirety.  In so concluding,
 however, the Authority finds it unnecessary to pass upon the Judge's
 dictum in Case No. 1-CA-192 regarding "mixed motives" inasmuch as he
 found, based upon credibility determinations, that no unlawful motive
 was involved in the suspension of employee Norman Boucher.
 
 
    /3/ In so concluding, the Authority does not pass upon the Judge's
 dictum regarding the possibility of a "clear and patent breach" of the
 agreement or his additional conclusion that "the issue posed should have
 been resolved under the parties' grievance and arbitration procedures"
 as a matter of contract interpretation.
 
 
    /4/ See American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 603 at 609 (1980), wherein the Authority held that a proposal concerning
 use of an agency telephone system by union officials was within the duty
 to bargain in that the proposal involved conditions of employment.  In
 reaching this conclusion, the Authority found that use of the telephone
 system by the union related to the administration of the collective
 bargaining agreement and, thus, was a tool to assist in the
 implementation of the conditions of employment established therein.
 
 
    /5/ While the Judge cited and relied upon Executive Order precedent
 in reaching his conclusion in this regard, the Authority notes that
 precedent under the Statute establishes the obligation to give notice
 and an opportunity to bargain prior to making unilateral changes in
 conditions of employment.  See, e.g., Department of the Air Force, Scott
 Air Force Base, Illinois, 5 FLRA No. 2 (1981).
 
 
    /6/ Section 7116(a)(4) provides:
 
    Sec. 7116.  Unfair Labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
                                .  .  .  .
 
          (4) to discipline or otherwise discriminate against an employee
       because the employee has filed a complaint, affidavit, or
       petition, or has given any information or testimony under this
       chapter(.)
 
 
    /7/ The consolidated complaint in Case No. 1-CA-192 was amended
 during the hearing to include an allegation relating to the suspension
 of Norman Boucher in December of 1979 (Tr. 84-89).
 
 
    /8/ Under authority provided in Section 2423.19(r) of the
 Regulations, 5 C.F.R.Section 2423.19(r), the following corrections are
 hereby made in the hearing transcript:
 
    Page Line Change To
 
    90 1 Johnny William John William Summey
 
    104 18 kneaded meted
 
    224 25 Bailey Blazar
 
    Respondent's motion to correct the transcript so as to reflect
 certain negative responses to questions addressed to John William Summey
 is denied in view of the Reporter's exclusion of such responses from the
 transcript, the absence of any personal recollection on the part of the
 undersigned that such were given by the witness, and the absence of any
 other showing that such negative responses were in fact elicited.
 
 
    /9/ Hereinafter references to the transcript will be designated "Tr.
 . . . ." and references to exhibits will be designated "G.C. Exh. . . .
 " or "R. Exh. . . . ."
 
 
    /10/ The four cases will be considered in the order of their
 presentation during the course of the hearing.
 
 
    /11/ The new Shipyard Instruction, designated as "NAVSHIPYD PTSMHINST
 12532.1A" was designed to replace "PTSMH NAVSHIPYD Instruction 12532.1"
 dated October 12, 1971 (R. Exh. 5(c) and G.C. Exh. 3).
 
 
    /12/ Mr. O'Brien's version of events differs from Mr. Mason's account
 in that Mr. O'Brien testified that he questioned the issuance because
 Mr. Mason had agreed to contact him again, and that Mr. Mason
 acknowledged this promise, but explained that he had been overruled by
 his superiors.  Mr. Mason testified that Mr. O'Brien did not accuse him
 for not contacting Mr. O'Brien a last time, and that he made no
 admissions concerning a failure to do so because his superiors had
 overruled him on the question.  Mr. Mason was of the view that there was
 no reason to contact Mr. O'Brien again in view of Mr. O'Brien's final
 ultimatum on August 10th.
 
 
    /13/ Norman and Roland Boucher are not related.
 
 
    /14/ Counsel for the General Counsel made an effort to establish that
 inspection reports would not have been filed in situations wherein work
 had been rejected;  however, this explanation is of little or no value
 in light of the showing that metal inspection work in the tanks of the
 USS Tecumseh was completed as early as May 2, 1978.  Evidence of the
 latter fact was not rebutted.
 
 
    /15/ The time records of these individuals disclosed that on May 8,
 1978, the date mentioned in their joint statement, Thompson did not
 commence work until 10:00 a.m., and Benitez did not commence work until
 3:20 p.m.
 
 
    /16/ Although Benitez and Thompson did endeavor to establish that
 they had actually observed Roland Boucher in distress on some unknown
 date, Benitez's reference to being on the second shift during the period
 in question discredits him, and time records relating to work activity
 of both of these witnesses on the date in question operate to discredit
 both witnesses with respect to reported observation of Roland Boucher in
 distress.
 
 
    /17/ After completion of the investigation and the suspension of
 Norman Boucher, a fourth co-worker who signed the statement advised
 Wendell Kinney that Norman Boucher had encouraged him to sign the
 statement on behalf of Roland Boucher.
 
 
    /18/ Both Benitez and Thompson had not received prior discipline and
 neither had been issued a letter of caution.  Norman Boucher had
 received a letter of caution in connection with an unrelated matter;
 however, Summey did not take this into consideration in his decision to
 discipline Norman Boucher.
 
 
    /19/ Article 6, Section 8 of the collective bargaining agreement
 provided that "either party desiring or having a requirement to discuss
 some matter with the other, shall give advance notice to the other
 party." The Section also provided:  "Such notice shall include a
 statement of the subject matter to be discussed, and the problem which
 generated the cause of discussion.  Such meeting will be scheduled as
 soon as practicable." (R Exh. 3).  The informal meeting procedure agreed
 upon represented a waiver of formal notice by the Respondent and the
 Union for the meetings held each Thursday.  The Council did have the
 right to request meetings under the terms of the collective bargaining
 agreement, and the record reflects that the Council did in fact
 participate in such meetings after the session wherein Wakefield
 terminated the weekly meetings.
 
 
    /20/ As noted the record disclosed that meetings between Wakefield
 and Shop 64 Union Stewards were held upon request after the termination
 of the regularly scheduled weekly meetings.
 
 
    /21/ Sargent admitted that he was found in such a position (Tr.
 252-253).
 
 
    /22/ The record revealed that Sargent was exposed to toxic fumes on
 May 22, 1979, that he had an adverse reaction, and that he was placed on
 "traumatic leave" until his return to work on May 30, 1979.
 
 
    /23/ The pending disciplinary action referred specifically to
 Bergeron's recommendation and to Belmont's concurrence (Tr. 310).
 
 
    /24/ Belmont acknowledged that as of the date of this meeting he was
 aware that Sargent had an appointment to see a doctor during the morning
 of August 16, 1979, for the purpose of having an examination.  However,
 as hereinafter noted the record reflects that Sargent had not been
 examined as of the time of his termination during the morning of August
 16th.
 
 
    /25/ Sargent testified that Dr. Cavari subsequently diagnosed his
 condition as a "spastic colon," and instructed him not to work for a
 five-day period.
 
    Under Shipyard policy a private physician did not have authority to
 authorize sick leave.  Employees were required to present medical
 evidence to the appropriate supervisor, who would then either approve or
 disapprove the sick leave based upon a physician's recommendation.
 
 
    /26/ Sargent admitted that he did in fact punch his time clock at
 about 7:00 a.m. on this date, but did not report for wo