10:0604(102)CA - Navy, Portsmouth Naval Shipyard, Portsmouth, NH and Federal Employees MTC -- 1982 FLRAdec CA
[ v10 p604 ]
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 work. /27/ The original charge in this case alleged that the termination meeting occurred on August 16th (G.C. Exh. 2A). /28/ Roberge's testimony reflected that Sargent had not seen his personal physician as of the time of the meeting with Belmont on August 16th. Despite this admission Roberge insisted that the statement of the physician was presented to Moorenovich on August 16th. It is noted that Roberge's admission is consistent with Sargent's initial testimony to the effect that he did not see his personal physician until August 17th (Tr. 234). /29/ During the hearing Norman Boucher again acknowledged inability to recall what he was doing on specific days in May of 1978. /30/ It is noted that the "Charge Against Agency" filed by Thurber in Case No. 1-CA-171, (FLRA Form 22 (1-79), reflects the statement: "I declare that I have read the above charge and that the statements therein are true to the best of my knowledge and belief." On this basis it is concluded that the charge may be characterized as an "affidavit" within the meaning of Section 7116(a)(4). /31/ The dismissal of the Charge in Case No. 1-CA-171 involved a substantially similar finding based upon statements made by Wakefield prior to October 23, 1979 (G.C. Exh. 9 and R. Exh. 7).