12:0276(63)CO - Federal Employees MTC, and International Association of Bridge, Structural and Ornamental Iron Workers, Local 745, Portsmouth Naval Shipyard, Portsmouth, NH and Robert Fall -- 1983 FLRAdec CO



[ v12 p276 ]
12:0276(63)CO
The decision of the Authority follows:


 
 12 FLRA No. 63
 
 FEDERAL EMPLOYEES METAL TRADES
 COUNCIL, AFL-CIO, AND INTERNATIONAL
 ASSOCIATION OF BRIDGE, STRUCTURAL
 AND ORNAMENTAL IRON WORKERS, LOCAL
 745, AFL-CIO, PORTSMOUTH NAVAL
 SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE
 Respondents
 
 and
 
 ROBERT FALL
 Charging Party
 
                                            Case No. 1-CO-18
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondents had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that they be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the
 Respondents had not engaged in certain other unfair labor practices and
 recommended dismissal of the complaint with respect to them.
 Thereafter, the General Counsel and the Respondents filed exceptions to
 the Judge's Decision, and the Respondents also filed an opposition to
 the General Counsel's exceptions.
 
    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.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Federal Employees Metal Trades Council, AFL-CIO,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, and the
 International Association of Bridge, Structural and Ornamental Iron
 Workers, Local 745, AFL-CIO, Portsmouth Naval Shipyard, Portsmouth, New
 Hampshire, shall:
 
    1.  Cease and desist from:
 
    (a) Interfering with, restraining, or coercing any bargaining unit
 employee of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, in
 the exercise of rights assured by the Federal Service Labor-Management
 Relations Statute, by making statements from which it might reasonably
 be inferred that failure to become a Union member will be a factor in
 determining whether arbitration will be invoked by the Union.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing bargaining unit employees in the exercise of rights assured by
 the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Post at their respective business offices and in normal meeting
 places, including all places where notices to bargaining unit employees
 are customarily posted, 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 an appropriate official of the
 Federal Employees Metal Trades Council, Portsmouth Naval Shipyard,
 Portsmouth, New Hampshire, and an appropriate official of the
 International Association of Bridge, Structural and Ornamental Iron
 Workers, Local 745, AFL-CIO, Portsmouth Naval Shipyard, Portsmouth, New
 Hampshire, and shall be posted and maintained by them for 60 consecutive
 days.  Reasonable steps shall be taken to ensure that such Notices are
 not altered, defaced, or covered by any other material.
 
    (b) Submit signed copies of the Notice to the Portsmouth Naval
 Shipyard, the employer herein, for posting in conspicuous places where
 bargaining unit employees are located, where they shall be maintained
 for a period of 60 consecutive days from the date of posting.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, 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 FURTHER ORDERED that the other allegations of the complaint be,
 and they hereby are, dismissed.  
 
 Issued, Washington, D.C., July 7, 1983
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                    NOTICE TO ALL MEMBERS AND 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 MEMBERS AND OTHER EMPLOYEES THAT:
 
 WE WILL NOT interfere with, restrain or coerce any bargaining unit
 employee of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, in
 the exercise of rights assured by the Federal Service Labor-Management
 Relations Statute by making statements from which it might reasonably be
 inferred that failure to become a Union member will be a factor in
 determining whether arbitration will be invoked by the Union.  WE WILL
 NOT in any like or related manner interfere with, restrain, or coerce
 employees of the Portsmouth Naval Shipyard in the exercise of their
 rights assured by the Federal Service Labor-Management Relations
 Statute.  Dated:  . . .  By:  (Signature) (Title)
 
                       Federal Employees Metal
                       Trades Council, AFL-CIO, Portsmouth
                       Naval Shipyard, Portsmouth, New
                       Hampshire
 
 Dated:  . . .  By:  (Signature) (Title)
 
                       International Association
                       of Bridge, Structural and Ornamental
                       Iron Workers, Local 745, AFL-CIO,
                       Portsmouth, New Hampshire
 
 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 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 those
 telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 1-CO-18
 
    Robert Matisoff, Esquire
          For the Respondents
 
    Richard D. Zaiger, Esquire
    Heather Briggs, Esquire
          For the General Counsel
 
    Before:  LOUIS SCALZO
          Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101, et seq., (hereinafter referred to as "the
 Statute") and the rules and regulations issued thereunder.
 
    The Federal Employees Metal Trades Council, AFL-CIO, Portsmouth Naval
 Shipyard, Portsmouth, New Hampshire (Council or Respondent), is the
 exclusive bargaining representative of a unit of ungraded employees in
 the Portsmouth Naval Shipyard (Shipyard).  The Council is composed of a
 group of approximately fourteen different Locals including the
 International Association of Bridge, Structural and Ornamental Iron
 Workers, Local 745, AFL-CIO (Local 745 or Respondent).  Through
 membership in affiliated Locals bargaining unit employees become members
 of the Council (Tr. 103).  /1/ Council officers are elected by
 representatives of the various affiliated Locals (Tr. 106).  Each Local
 also has governing officers who are elected by those who hold Local
 membership (Tr. 105-106).
 
    Affiliated Locals designate stewards and chief stewards.  Those
 designated to fulfill steward roles are in turn appointed by the
 President of the Council to represent the Council in connection with
 Union business pertaining to their Locals, including all grievance and
 arbitration matters (Tr. 104).
 
    Robert Fall, the Charging Party, was employed as a rigger at the
 Shipyard.  He was not a Union member.  His duties included diving work,
 for which he received an environmental pay differential.  Fall received
 a ten day suspension from work without pay because of what the Shipyard
 perceived as a failure on the part of Fall to carry out assigned
 responsibilities as an acting supervisor in charge of diving operations
 during a July 27, 1979, diving assignment (G.C. Exh. 5).  Fall was
 thereafter also suspended from all diving duties.  Francis J. Colemen,
 also a member of the diving team on July 27th and a member of Local 745,
 received a five day suspension from work without pay for his involvement
 in a violation of rules and regulations relating to diving safety.  Both
 Fall and Coleman filed grievances under the negotiated grievance
 procedure.  Fall contended that he was not the acting diving operations
 supervisor on July 27, 1979, and that one George Haywood had been
 designated to carry out such supervisory responsibilities on the
 mentioned date (G.C. Exh. 6).  Both grievances were denied at the first,
 second and third levels of the grievance procedure.  The Council
 thereafter did not invoke arbitration on behalf of Fall, but did invoke
 arbitration on behalf of Coleman.
 
    The arbitrator restored Coleman to diving duty on the ground that a
 permanent suspension from diving duty constituted excessive punishment
 (G.C. Exh. 2).  /2/ Both Fall and Coleman were represented by Ronald
 Marcotte, a Chief Steward appointed to act for the Council by Council
 President John F. O'Brien, following designation of Marcotte by Local
 745.
 
    The complaint alleged that the Council and Local 745 violated unfair
 labor practice provisions of the Statute by the following conduct:
 
          (a) Section 7116(b)(1).  By refusing on or about November 28,
       1979, to arbitrate the Fall grievance because of Fall's
       nonmembership in Respondent labor organizations.
 
          (b) Section 7116(b)(1).  By statements made by Ronald Marcotte
       to Robert Fall on or about a date in December 1979, to the effect
       that Fall's grievance was not submitted to arbitration because of
       Fall's non-membership in Respondent labor organizations.
 
          (c) Section 7116(b)(1) and (8).  By failing and/or refusing to
       comply with the provisions of Section 7114(a)(1) of the Statute by
       failing and/or refusing on or about November 28, 1979, to
       arbitrate the Fall grievance because of Fall's non-membership in
       Respondent labor organizations.
 
    Counsel representing the Respondents argues that Fall was a
 "supervisor" within the meaning of Section 7103(a)(10) of the Statute,
 and that as a result the Respondents had no duty to represent Fall in an
 arbitration proceeding;  and that counsel for the General Counsel failed
 to establish proof of violations of the Statute.  /3/
 
    The parties were represented by counsel during the hearing, and were
 afforded full opportunity to be heard, adduce relevant evidence, and
 examine and cross-examine witnesses.  /4/ Post-hearing briefs were
 received from counsel representing the General Counsel and counsel
 representing the Respondents.  These have been duly considered.  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, /5/ and the briefs, I make the following
 findings of fact conclusions and recommendations:
 
            The Nature of Robert Fall's Duties on July 27, 1979
 
    Fall testified at length that Haywood, and not he, had supervisory
 responsibility at the diving site;  however, this conclusion must be
 rejected on the basis of the evidence.  Fall acknowledged in a written
 statement dated August 9, 1979, that he was in charge of the diving crew
 at the time of the incident in question (R. Exh. 3).  /6/ An abundance
 of other proof establishes that he was in fact in control of diving
 operations at the diving site on July 27th.
 
    On September 19, 1978, J. R. Dostie, Superintendent Rigger addressed
 a memorandum to Fall advising him that C. A. Kasterke, Rigger Foreman,
 was assigned "the responsibility of supervising Diving Operations for
 Shop 72." (G.C. Exh. 3).  /7/ The memorandum then went on to advise Fall
 as follows:
 
          If, at any time, Mr. Kasterke is not available at the diving
       worksite, when a diving operation is being conducted, you are
       designated as the supervisor in charge of Diving Operations.
 
    Fall acknowledged receipt of the memorandum;  admitted that on July
 27, 1979, a copy of the memorandum was in his personnel file (Tr. 16);
 and acknowledged that his designation as acting diving operations
 supervisor in Kasterke's absence was not revoked until after the July
 27, 1979 incident (Tr. 37).
 
    Fall's ordinary duties as a rigger included specialized work as an
 industrial diver, but involved no supervisory responsibility (G.C. Exh.
 10).  The duties and authority of the acting diving operations
 supervisor were described in general terms in an excerpt from a "Navy
 diving manual" (R. Exh. 2, Tr. 40-41).  The record established that when
 serving as acting diving operations supervisor, Fall performed diving
 work along with other divers (Tr. 50, 64-66), and that he was considered
 a "working foreman" (Tr. 50).  Fall's testimony also established that he
 performed such duties even when Kasterke was present (Tr. 50).  /8/
 Fall's duties as acting diving operations supervisor did not differ a
 great deal from his usual non-supervisory duties.  The difference in the
 two jobs related primarily to a requirement that he obtain or arrange
 for other trades needed to assist in diving activity (Tr. 64-65).
 
    It was established that Kasterke was frequently absent when the
 diving team was working, and that when Fall was performing duties as
 acting diving operations supervisor in Kasterke's absence, Fall's work
 was not the same as that ordinarily performed by Kasterke, as Fall had
 no authority to perform the more general supervisory work assigned to
 Kasterke (Tr. 73).  /9/ Fall disclosed that when he was acting as diving
 operations supervisor he did not work out of Kasterke's office and that
 he did not perform the same functions that Kasterke did (Tr. 77-78).
 Fall's testimony established that he did not select who would dive as
 divers were assigned in rotation (Tr. 40, 96).  He had no authority to
 take disciplinary action and no authority usually associated with
 supervisory duties (Tr. 40).
 
  Contentions of Charging Party Concerning Supervisory Status on July 27,
 1979, and Nature of George Haywood's Duty as Acting Supervisor
 
    Fall contends that on or about July 1, 1979, Kasterke told him that
 he (Kasterke) would be going on vacation during the last two weeks of
 July 1979, and that he then inquired whether Fall "would like to be the
 Diving Supervisor" in his absence" (Tr. 17).  At another point, Fall
 related that Kasterke, "asked me if I would like to take his place" (Tr.
 67).  He stated that he agreed to act for Kasterke and take his place
 (Tr. 17, 67), but that on the following day Kasterke informed Fall that
 George Haywood, "would take his place" because Superintendent Dostie,
 Kasterke's superior, had informed Kasterke that Haywood did not have too
 much time in as an acting supervisor, and that Haywood would be selected
 as acting diving supervisor for this reason (Tr. 17, 18-19, 43, 67).
 Fall testified that he complained to Kasterke about Haywood's selection
 (Tr. 67, 79, 89);  but that Haywood was designated by Dostie to be
 Kasterke's replacement (Tr. 44).
 
    Although the record is unclear as to whether or not Fall and Haywood
 were both candidates for the position of acting Rigger Foreman, the
 evidence in the record clearly indicates that Haywood did in fact serve
 as a replacement for Kasterke and that he was acting for him on July 27,
 1979.  However, the record established that Haywood's responsibilities
 as acting supervisor embraced much more than those associated with the
 actual supervision of diving operations.  Haywood was classified as a
 shop planner on July 27, 1979 (Tr. 66).  Fall admitted that the duties
 he performed as acting supervisor of diving operations were much
 narrower than those which Haywood performed as Kasterke's replacement on
 July 27th (Tr. 77-78).  Haywood signed diver time cards on the day in
 question (Tr. 89, 94).  Like Kasterke, Haywood was not always present
 during actual diving operations as he had supervisory duties to perform
 elsewhere at other locations (Tr. 42, 70-71, 74-75).  He was not a diver
 (Tr. 74), and was not present at the job site to perform supervisory
 functions at the time of the incident giving rise to the disciplinary
 action involved (Tr. 93-96).  /10/ However, diving regulations required
 that individuals directly in charge of diving operations be qualified as
 divers (R. Exh. 2 at Paragraph 4.6.4).  Fall was a qualified diver.
 Lastly, on July 27th, Haywood met with the diving crew at about 7:30
 a.m. and instructed the crew to go out and complete a radiological
 survey (Tr. 72).  The crew consisting of Fall, Coleman and three other
 divers, was told by Haywood that they would be accompanied by one Adrian
 Beaulieu a radiological technician.  He also told them where the job was
 located and what the crew should do (Tr. 95).  These were duties
 ordinarily performed by Kasterke as Rigger Foreman.
 
  Circumstances Relating to Disciplinary Action Taken Against Robert Fall
 and Francis J. Coleman
 
    As noted Haywood assigned the diving crew to do a radiological survey
 at the Shipyard. This involved taking bottom samples of marine life for
 study by Beaulieu, the radiological technician (Tr. 19, 95).  The diving
 crew consisted of Fall, Coleman, Roger Ward, Andy LeFreniere, and Dave
 Jetty (Tr. 61-62, 95-96).  /11/ Fall testified that he and Ward entered
 the water as a team, and that while they were under, Beaulieu, who was
 not a diver, and not authorized to dive, suited up and dove without Fall
 knowing about it (Tr. 62-64).  Fall's testimony on these points
 presented serious problems of credibility since the Shipyard's factual
 findings at the second stage of the grievance procedure indicate that
 Fall said that he dove with LeFreniere rather than Ward, that Dave Jetty
 specifically placed Fall aboard the diving barge when Beaulieu was
 donning a wet suit to enter the water, and further that there was no
 entry in the diving log to indicate that Fall dove on July 27, 1979
 (G.C. Exh. 6).
 
    It was established that Beaulieu's dive was in violation of safety
 regulations and that it was deemed a danger to life and safety (G.C.
 Exh. 5).  Beaulieu subsequently experienced injury in the form of an
 "ear squeeze" as a result of the dive (G.C. Exh. 4).  Fall testified
 that he did not find out that Beaulieu had entered the water until the
 end of the work day on July 27th, and that he thought that Beaulieu had
 just gone swimming (Tr. 69-70).  However, on this factual issue Fall's
 testimony was vague.  He stated that he could not remember who told him
 that Beaulieu "went in the water" (Tr. 68).
 
    On the following Thursday, August 2, 1979, Superintendent Dostie
 indicated to Fall that he was contemplating disciplinary action.  He
 referred to the fact that Fall had been designated to serve as diving
 operations supervisor in Kasterke's absence as of September 19, 1978.
 He informed Fall that Fall was responsible for the Beaulieu injury, and
 stated that Fall would never be allowed to dive in the Shipyard again
 (Tr. 19-20).  A proposed ten day suspension from work without pay was
 proposed by Kasterke on September 4, 1979 (G.C. Exh. 4).  The Notice
 stated:
 
          This is a notice of proposed disciplinary action consisting of
       a ten (10) day suspension from work without pay because of failure
       to carry out your responsibilities as acting supervisor which
       resulted in a violation of safety regulations which endangered the
       life and safety of another employee on 27 July 1979.  You were
       given a one (1) day suspension effective 29 September 1977 because
       of damage to Government property on 4 August 1977.  This prior
       offense was considered in determining the severity of this
       penalty.  . . .  /12/
 
    On September 21, 1979, Fall was suspended from work without pay for a
 ten day period by Superintendent Dostie because of a cited failure to
 carry out his responsibilities as an acting supervisor in charge of the
 diving operation on July 27, 1979, and because of his prior disciplinary
 record (G.C. Exh. 5).
 
                      Grievance Proceedings Initiated
 
    On or About September 24, 1979, Fall contacted Chief Steward Ronald
 Marcotte to file a grievance in connection with the suspension imposed
 (Tr. 23), and on or about September 26, 1979, a grievance signed by
 Marcotte and Council President John P. O'Brien, was filed on behalf of
 Fall (Tr. 24, G.C. Exh. 6).  /13/ Fall contended that the ten day
 suspension of work without pay was imposed without just cause.  The
 grievance did not interpose objection to Superintendent Dostie's oral
 statement to the effect that Fall would never dive in the Shipyard
 again, but did request reassignment to the diving crew (G.C. Exh. 6).
 
    At about the same time a grievance was initiated by the Council on
 behalf of Francis J. Coleman to appeal his five day suspension from work
 without pay and removal from diving activities for his participation in
 events leading up to Beaulieu's injury (Tr. 83).  Coleman's grievance,
 unlike Fall's, involved only an alleged violation of safety rules (Tr.
 150).  As the representative of both Fall and Coleman, Marcotte
 endeavored to consolidate the grievances at the second level of the
 grievance procedure, but the Shipyard would not permit consolidation
 because they were deemed to be separate cases (Tr. 151).
 
            Arbitration Invoked On Behalf of Francis J. Coleman
 
    Under provisions of the collective bargaining agreement, the Council
 had the right to invoke arbitration following the denial of the Fall and
 Coleman grievances.  /14/ The costs of arbitration are shared equally by
 the Council and the Shipyard.  The Council funds arbitration in about
 eighty percent of the cases (Tr. 127).  Funding for the remainder is
 obtained primarily from Locals which reimburse the Council (Tr.
 128-129).  Regardless of the source of funds used to pay for the
 Council's share of arbitration expenses, under the provisions of the
 collective bargaining agreement, it is the Council that has the
 obligation to pay for one half of the costs of arbitration, and it is
 the Council that has ultimate authority to determine whether arbitration
 will be invoked on behalf of the Council or an aggrieved party (G.C.
 Exh. 11, Article 35).
 
    If the Council determines that it does not wish to fund arbitration,
 the Council allows the interested Local Union to assume responsibility
 for the funding if it is determined that the case would not adversely
 affect a large group of Shipyard employees (Tr. 183).  Because of time
 limits associated with procedure relating to arbitration it is customary
 for interested affiliated Locals to determine, in the first instance,
 whether they will financially support arbitration in cases wherein the
 Council might later determine that the Council will not provide funding,
 but will not interpose objection to the processing of the grievance
 through the arbitration stage (Tr. 130-131).
 
    Requests for arbitration received from Locals are processed initially
 by affiliated Locals (Tr. 182).  Arguments in favor of proceeding to
 arbitration are thereafter presented to the Council Grievance Committee
 by the Union representative responsible for the case or by the
 individual grievant (Tr. 131).  The procedure before the Committee
 involves a "mock trial" of the arbitration (Tr. 131).  The Committee
 thereafter makes a funding recommendation to the Council's Executive
 Board (Tr. 182), which has authority to determine whether arbitration
 will be invoked and the source of funding.  Marcotte contacted Council
 President O'Brien about the possibility of going to arbitration in
 Fall's case after denial at the third step of the grievance procedure
 (Tr. 160-161).  They discussed Fall's position as acting supervisor of
 diving operations, issues concerning whether Fall was a member of the
 bargaining unit, and conflicts in the statements of witnesses (Tr.
 159-161).  There was no discussion of the fact that Fall was not a Union
 member (Tr. 161-162).  /15/
 
    During Marcotte's representation of Fall through the steps of the
 grievance procedure Marcotte had approximately six meetings with Fall
 concerning the processing of his grievance (Tr. 26).  /16/ Marcotte
 urged Fall to join Local 745, but there was no indication that these
 statements urging membership were coercive in nature, or in any way tied
 to the processing of Fall's grievance (Tr. 27, 57).  Fall testified that
 after denial of his grievance at the third step he had a meeting with
 Marcotte, and that he advised Marcotte that he wanted to proceed to
 arbitration.  According to Fall, Marcotte told Fall that "it looked very
 doubtful for me because I was a non-member," but that he would bring it
 up to the Local for a vote (Tr. 28).  /17/
 
    At the November 29, 1979 /18/ membership meeting of Local 745, issues
 raised by the Fall and Coleman grievances were presented by Marcotte to
 the membership of Local 745 (Tr. 154, 163-164, 168-170).  Marcotte did
 so to determine whether the Local would support an arbitration
 proceeding for Fall and Coleman (Tr. 156-157).  Marcotte chaired the
 meeting as Vice President of the Local (Tr. 158-159).  He temporarily
 relinquished control of the meeting to make a factual presentation
 concerning the grievances and then returned to his position as presiding
 officer immediately afterward (Tr. 157).  The presentation included
 details of each case and reference to the fact that each grievant sought
 arbitration.  The nature of the disciplinary action imposed in each
 case, and the contentions of management with respect to Fall's role as
 acting supervisor of diving operations were also mentioned (Tr. 154,
 156-157).
 
    Upon return to his position as presiding officer of the meeting, a
 Union member in attendance moved that the Local support arbitration of
 Coleman's grievance (Tr. 170, G.C. Exh. 9).  The membership then voted
 in favor of proceeding with the Coleman grievance (Tr. 153, 158).  There
 was no discussion by the members after the motion was made, nor was
 there any subsequent discussion or proposed action concerning the Fall
 grievance at the meeting (Tr. 153, 158, 168).  The minutes of the
 November 29, 1979 meeting reflect action taken by Local 745 membership
 on the Coleman grievance, but contain no reference to the Fall grievance
 (G.C. Exh. 9).  The testimony of the Recording Secretary of the Local
 established that minutes of meetings usually reflected only the results
 of some dispositive action taken (Tr. 179), and further that the rough
 notes made at meetings were not developed into formal versions of the
 minutes until just prior to the date on which business meetings were
 scheduled (Tr. 178-179).  There was no evidence in the record that the
 fact of Fall's non-membership was raised at the meeting, and Marcotte
 did not disclose to the membership whether or not Fall was a member (Tr.
 162).  Fall's status was not raised for consideration by those voting at
 the meeting (Tr. 168), and there was no showing that the membership had
 any way of knowing whether or not Fall was a member of the Local (Tr.
 168).
 
    Although the record clearly established that the Fall and Coleman
 grievance matters were presented to the membership of Local 745 on
 November 29, 1979, Fall recalled that Marcotte told him that he would
 raise the issue before the Local during a December meeting (Tr. 31).  He
 related that just before Christmas in December 1979, Fall asked Marcotte
 if the Local had considered his request (Tr. 29).  According to Fall,
 Marcotte said in response that the Local had voted against taking his
 grievance to arbitration (Tr. 29).  /19/ Fall testified that in reply to
 an inquiry concerning the reason for the refusal, Marcotte said that it
 was "because of my non-membership" (Tr. 31).
 
    On December 10, 1979, Marcotte made a presentation of the Fall and
 Coleman grievances to the Council's Grievance Committee comprised of
 Raymond Thurber, Chairman, and three others associated with three
 affiliated Locals (Tr. 183-184).  There was discussion of the merits of
 each case.  The minutes of the Grievance Committee reflect the following
 disposition:
 
          After much discussion, it was the committee's recommendation
       not to take either case to arbitration, because there appeared to
       be several different stories of how this came about.  This made it
       apparent that someone was lying;  which one, we could not
       determine.  We advised Mr. Marcotte that if he could come up with
       some better evidence concerning these grievances we would
       reconsider our recommendation.  Brother Marcotte was informed that
       our recommendation to the MTC would be not to fund these cases on
       its merits.  However, the Local may take the cases to arbitration
       with their own funding.  (Tr. 184-185, R. Exh. 5).  /20/
 
    At a December 14, 1979, meeting of the Council's Executive Board, the
 Board decided to accept the December 10, 1979, recommendation of the
 Council's Grievance Committee (Tr. 186, R. Exh. 6).  The sequence of
 events was corroborated in large measure by Coleman, who stated that
 Marcotte told him that the Council voted not to fund Coleman's case
 because "it was not a strong enough case" (Tr. 84), and that both cases
 were being rejected by the Council (Tr. 94).  Coleman related that
 Marcotte subsequently told him that at a previous meeting of the Local,
 a decision had been made to support Coleman's case (Tr. 84-85).
 Marcotte was also alleged to have said that he (Marcotte) did everything
 he could do for Fall's case, but that he could not go any further
 because a decision had been made not to arbitrate Fall's case (Tr. 85).
 Coleman testified that Marcotte explained that the Council would not
 appropriate money for arbitration of Fall's case because he was a
 non-member (Tr. 85, 87).
 
                        Discussion and Conclusions
 
    A threshold issue posed in this case relates to whether or not the
 Charging Party was, on July 27, 1979, a "supervisor" within the meaning
 of Section 7103(a)(10) of the Statute.  A positive finding on this point
 would deny Fall coverage as an "employee" under Section 7103(a)(2) of
 the Statute, and thus would preclude application of the unfair labor
 practice provisions of the Statute.
 
    The term "supervisor" is defined as follows in Section 7103(a)(10):
 
          (10) 'supervisor' means an individual employed by an agency
       having authority in the interest of the agency to hire, direct,
       assign, promote, reward, transfer, furlough, layoff, recall,
       suspend, discipline, or remove employees, to adjust their
       grievances, or to effectively recommend such action, if the
       exercise of the authority is not merely routine or clerical in
       nature but requires the consistent exercise of independent
       judgment.  . . .
 
    Fall's authority as an acting supervisor in charge of diving
 operations was limited in nature.  He functioned as a trained diver
 along with other divers who were charged with responsibility for the
 proper performance of their specialized work.  His duties as an acting
 supervisor were not those performed by Kasterke, the supervisor for whom
 he was acting in part.  He did not select those who would dive, had no
 authority to discipline employees, and did not otherwise possess
 authority of the type described in Section 7103(a)(10).  He merely was
 charged with providing guidance to the diving crew in Kasterke's
 absence, and was responsible within the limited framework involving the
 application of Fall's experience as a diver.  There was no showing that
 Fall exercised, had authority to exercise, or had authority to
 effectively recommend, any of the administrative action specified in
 Section 7103(a)(10).  It is also significant that throughout the
 processing of Fall's grievance, neither Respondents nor the Shipyard
 placed Fall within the supervisory category described in Section
 7103(a)(10).  Based on the facts adduced it must be concluded that Fall
 was an "employee" within the meaning of Section 7103(a)(2), and that he
 was not a "supervisor." Accordingly, the contentions of the Respondents
 on this issue must be rejected.
 
    Under the provisions of Section 2423.18 of the Regulations, 5 C.F.R.
 2423.18, the General Counsel has the burden of proving the allegations
 of the complaint by a preponderance of the evidence.  Here the case in
 favor of the Charging Party rests almost entirely upon the testimony of
 Robert Fall and Francis J. Coleman.  A careful evaluation of the record
 indicates that Fall and Coleman were not entirely credible witnesses.
 /21/
 
    It is determined by their testimony and other elements of the record
 did not establish by a preponderance of the evidence, that Respondents
 violated Sections 7116(b)(1) on or about November 28, 1979, by refusing
 to take the Fall grievance to arbitration, or that such alleged conduct
 precipitated violations by Respondents of Sections 7116(b)(1) and (8)
 based upon a failure to comply with the provisions of Section 7114(a)(1)
 of the Statute.  However, despite serious credibility problems posed by
 Fall's testimony, it is concluded that uncontradicted elements of Fall's
 testimony, supported by other circumstantial evidence, did establish by
 a preponderance of the evidence, a violation of Section 7116(b)(1) based
 upon statements attributed to Ronald Marcotte during a December 1979
 conversation between Fall and Marcotte.
 
    Turning to allegations that the Respondents violated Section
 7116(b)(1) on or about November 28, 1979, by refusing to take the Fall
 grievance to arbitration, and allegations that such conduct also
 precipitated violations by Respondents of Section 7116(b)(1) and (8)
 based upon a failure to comply with the provisions of Section 7114(a)(1)
 of the Statute, it is noted that Marcotte's representation of Fall
 closely patterned the representation provided to Coleman, a Union
 member.  Marcotte met at intervals with Fall to discuss Fall's
 grievance.  At the November 29, 1979 meeting of Local 745, Marcotte
 temporarily relinquished his position as presiding officer in order to
 explain to the members of the Local, details relating to the Shipyard's
 denial of both the Fall and Coleman grievances.  He outlined the facts
 and issues presented in both cases, and advised the membership that both
 grievants wished to proceed to arbitration.  There was no reference to
 Fall's non-Union status, and this element was not raised as an issue.
 Marcotte then again assumed control of the meeting as the presiding
 officer, at which time the membership, without discussion, adopted
 another member's motion to support Coleman's case.  The record reflects
 no evidence of irregularity in connection with Marcotte's presentation
 to the membership, nor is there any credible evidence to support the
 contention that the Local 745 membership refused to take affirmative
 action to support Fall because Fall was not a member of the Union.
 
    Subsequently, on December 10, 1979, Marcotte endeavored to obtain
 Council financial support for the arbitration of both the Fall and
 Coleman grievances.  The Council adopted a prior Council Grievance
 Committee recommendation opposing support for either grievance.  Facts
 adduced during the hearing indicate that the recommendation of the
 Council Grievance Committee and the decision of the Executive Board of
 the Council were based on the merits of the two cases, and that Fall's
 non-membership status was not a factor in their consideration.
 
    Marcotte's detailed account of the procedure utilized at the November
 29th meeting of Local 745, and the detailed account of proceedings
 relating to Council action were entirely credible.  These accounts were
 challenged indirectly by Fall's and Coleman's testimony to the effect
 that Marcotte attributed lack of support to Fall's non-Union status.
 This testimony did not establish the actual existence of such a motive,
 nor the implementation of such a purpose.  Moreover, such statements, in
 the light of the record developed, amount to mere speculation, and would
 not, without more, establish culpability on the part of either
 Respondent for refusing to proceed to arbitration because of the reason
 alleged.
 
    The evidence adduced indicates regularity in procedure, and an
 apparent attempt by Marcotte to exhaust every reasonable prospect of
 obtaining Local 745 support for arbitration of Fall's grievance.
 Similarly, evidence relating to action taken before the Council
 Grievance Committee and Council Executive Board indicates regularity and
 the absence of consideration of Fall's non-Union status.  Even if
 Marcotte made statements impugning action taken, such statements without
 more, would not, in the factual situation presented justify any finding
 of irregularity in the action taken by the Council.  It was the Local
 745 membership, the Council Grievance Committee, and the Executive Board
 of the Council that were charged with authority to authorize support for
 the Fall grievance.  There was no proof in the record of any
 irregularity on the part of Local 745, the Council Grievance Committee,
 or the Executive Board of the Council in connection with consideration
 given to the Fall grievance.
 
    Section 7116(b)(1) provides that, it shall be an unfair labor
 practice for a labor organization "to interfere with, restrain, or
 coerce any employee in the exercise by the employee of any right under
 this chapter." Section 7102 of the Statute provides that employees "have
 the right to form, join, or assist any labor organization, or to refrain
 from any such activity, freely and without fear of penalty or reprisal,
 and each employee shall be protected in the exercise of such right."
 
    Key elements of proof relating to the alleged violation of Section
 7116(b)(1), based upon statements attributed to Ronald Marcotte, were
 supplied by Robert Fall.  Although the record disclosed that his
 testimony posed serious credibility issues, it is also noted that there
 was no contradiction by Respondents, of that facet of Fall's testimony
 which pertained to the December 1979 conversation alleged in paragraph
 6(b) of the complaint.  /22/
 
    Fall testified that Marcotte told him that Local 745 had voted
 against taking his case to arbitration, and that Fall's "non-membership"
 was the reason for the Local's refusal.  Respondents acknowledged that
 during the course of Marcotte's representation of Fall, Marcotte
 endeavored to persuade Fall to become a member, and it must be concluded
 under the circumstances presented that Fall could reasonably have drawn
 a coercive inference from Marcotte's statement about Local 745 as it did
 clearly suggest a direct relationship between Union membership and the
 existence of Union support in the further processing of Fall's grievance
 through the arbitration stage.  Procedurally, Council action was
 scheduled to follow Marcotte's report of unfavorable disposition at the
 Local level.  Marcotte was still representing Fall in the matter.  It
 may be inferred that Marcotte's comment was coercive in nature, in that
 Fall could have logically concluded that status as a Union member during
 further Council consideration, would inure to Fall's benefit in
 connection with the processing of his case before the Council.
 Marcotte's statement constituted an infringement of Fall's Section 7102
 rights, and was violative of Section 7116(b)(1).  Since Marcotte was
 officially representing both Respondents at the time that he made the
 statement, both Respondents must be deemed culpable parties with respect
 thereto.
 
    Having found that Respondents violated Section 7116(b)(1) of the
 Statute, it is recommended that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Federal Employees Metal Trades Council, AFL-CIO, Portsmouth
 Naval Shipyard, Portsmouth, New Hampshire, and International Association
 of Bridge, Structural and Ornamental Iron Workers, Local 745, AFL-CIO,
 Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall:
 
    1.  Cease and desist from:
 
          (a) Interfering with, restraining, or coercing any bargaining
       unit employee of the Portsmouth Naval Shipyard, Portsmouth, New
       Hampshire, in the exercise of rights assured by the Federal
       Service Labor-Management Relations Statute by making statements
       from which it might reasonably be inferred that failure to become
       a Union member will be a factor in determining whether arbitration
       will be invoked.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing bargaining unit employees in the exercise
       of rights assured by the Federal Service Labor-Management
       Relations Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Post at their respective business offices and in normal
       meeting places, including all places where notices to members are
       customarily posted, 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 President of the Federal Employees Metal Trades Council,
       AFL-CIO, and by the President of the International Association of
       Bridge, Structural and Ornamental Iron Workers, Local 745,
       AFL-CIO, and shall be posted and maintained by them for 60
       consecutive days.  Reasonable steps shall be taken to insure that
       such notices are not altered, defaced, or covered by any other
       material.
 
          (b) Submit signed copies of said Notice to the Portsmouth Naval
       Shipyard, the employer herein, for posting in conspicuous places
       where bargaining unit employees are located, where they shall be
       maintained for a period of 60 consecutive days from the date of
       posting.
 
          (c) Notify the Regional Director, 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 with this
       Order.
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  June 23, 1981
 
          Washington, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT interfere with, restrain or coerce any bargaining unit
 employee of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, in
 the exercise of rights assured by the Federal Service Labor-Management
 Relations Statute by making statements from which it might reasonably be
 inferred that failure to become a Union member will be a factor in
 determining whether arbitration will be invoked.  WE WILL NOT in any
 like or related manner, interfere with, restrain, or coerce employees of
 the Portsmouth Naval Shipyard in the exercise of their rights assured by
 the Federal Service Labor-Management Relations Statute.  Dated:  . . .
 . . .
 
                President, Federal Employees Metal
 
                Trades Council, AFL-CIO, Portsmouth
 
                Naval Shipyard, Portsmouth, New
 
                Hampshire
 
 Dated:  . . .  . . .
 
                President, International Association
 
                of Bridge, Structural and Ornamental
 
                Iron Workers, Local 745, AFL-CIO,
 
                Portsmouth, New Hampshire
 
 This Notice must remain posted for 60 consecutive days from the date of
 posting, and must not be altered, defaced, or covered by any other
 material.  If employees have any questions concerning this Notice or
 compliance with any of its provisions, they may communicate directly
 with the Regional Director, Federal Labor Relations Authority, whose
 address is:  441 Stuart Street, 9th Floor, Boston, MA 02116, and whose
 telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Hereinafter references to the transcript will be designated "Tr.
 . . . ," and references to exhibits will be designated, "G.C. Exh. . . .
 ," or "R. Exh. . . .."
 
 
    /2/ The arbitrator's award was upheld by the Authority in Portsmouth
 Naval Shipyard, 5 FLRA No. 28 (February 24, 1981).
 
 
    /3/ Counsel for the Respondents also argues that no basis exists for
 finding the Council liable for any violations of the Statute;  and
 further that the remedy sought by counsel for the General Counsel, that
 Respondents be ordered to make the Charging Party whole for all past and
 future financial loss suffered during the period of his being precluded
 from diving duty by the Shipyard, would be inappropriate in any event.
 Due to the disposition recommended it is unnecessary to reach these
 issues.
 
 
    /4/ The record received from Milton Reporting, Inc., did not include
 a copy of G.C. Exh. 4, nor copies of R. Exhs. 1 through 6.  A note from
 Milton Reporting attached to the transcript indicated that the Regional
 Attorney retained copies of R. Exhs. 1 through 6 following the hearing.
 The record does not reflect such retention;  and information thereafter
 received from the individual who transcribed the proceedings, and from
 the Regional Attorney, specifically contradicted the statement reflected
 in the note.  During a conference call with counsel of record on May 21,
 1981, it was ascertained that Milton Reporting had lost or misplaced
 G.C. Exh. 4, and had misdirected R. Exhs. 1 through 6 to the Boston
 Regional Office of the Authority.  During the telephone conference,
 counsel of record stipulating that counsel representing the General
 Counsel would supply the missing exhibits for inclusion as part of the
 record.  See letters dated May 21, 1981, addressed to the Office of
 Administrative Law Judges by counsel of record.
 
    In addition to the foregoing, counsel of record agreed during the
 hearing that counsel representing the Respondents could, subject to
 written objection, submit a position description pertaining to the
 duties of C. A. Kasterke, Rigger Foreman.  Counsel for the Respondents
 submitted a Rigger Foreman position description approved on November 30,
 1970, and amended on March 30, 1978.  Counsel for the General Counsel
 objected on the ground of relevancy, but interposed no objection to the
 authenticity of these documents.  It is determined that the documents
 supplied are admissible, and that they may be added to the record as R.
 Exh. 7.
 
 
    /5/ Under authority provided in Section 2423.19(r) of the
 Regulations, 5 C.F.R. 2423.19(r), the following corrections are made in
 the hearing transcript:
 
    Page Line Change To
 
       42 12 where were
 
    123 11 showing saying
 
    140 6 represent present
 
    148 18 may made a
 
 
    /6/ Fall also made this argument during the processing of his
 grievance.  An attempt by Fall to explain away the contradiction by
 saying that he "ran the diving crew even though Kasterke was there" did
 not help to resolve the conflict or enhance Fall's credibility (Tr.
 50-51).
 
 
    /7/ Kasterke was Fall's immediate supervisor, and Dostie was located
 at the supervisory level above Kasterke (Tr. 43-44).
 
 
    /8/ Although Coleman endeavored to convey the impression that there
 were times when the diving crew operated without any supervision, and
 that none was needed on such occasions (Tr. 100-101), the record clearly
 indicated the contrary (G.C. Exh. 3, R. Exh. 2 at Paragraph 4.6.2).
 
    Coleman's testimony on this point was not credible and was obviously
 designed to aid Fall.  It was established that their friendship extended
 back to approximately 1966, that they worked together at the Boston
 Naval Shipyard before commencing work at the Portsmouth Naval Shipyard,
 and that they were the only two divers from the Boston Naval Shipyard
 (Tr. 90-92).
 
    Also, in contrast to Fall's testimony concerning his usual duties as
 a "working foreman" in charge of the diving team, Fall testified that he
 never assumed any supervisory duty without being specifically requested
 to do so by Superintendent Dostie (Tr. 38-39, 76).
 
 
    /9/ Kasterke's position as Rigger Foreman was quite distinguishable
 from the work of acting diving operations supervisor performed by Fall.
 Kasterke had an office in a separate building, and unlike Fall, Kasterke
 had other administrative and supervisory duties to perform (Tr. 74).
 
 
    /10/ Fall's testimony concerning Haywood's presence at the job site
 at the time of the episode giving rise to disciplinary action taken
 against Fall and Coleman was to the effect that Fall didn't know whether
 Haywood was present (Tr. 42-43, 78).  He thereafter stated that Haywood
 was not, to his knowledge, present at the site (Tr. 78).  G.C. Exh. 6
 reflects factual findings made by management at the second step of the
 grievance procedure.  These indicate that Fall was present at the time
 of the incident, and that he thus would have been in a position to know.
 
 
    /11/ Although not material for purposes of this case there is some
 indication in the record that a Lt. Bunce was also a member of the
 diving crew (G.C. Exh. 2, at page 4).
 
 
    /12/ In the Notice, Kasterke also stated:  "In my absence you were
 acting diving supervisor."
 
 
    /13/ Although the Council would not have pursued a grievance on
 behalf of an individual that the Council identified as a supervisory
 employee within the meaning of Section 7103(a)(10) of the Statute, the
 Council occasionally took cases to arbitration in situations wherein it
 was first necessary to determine this jurisdictional issue (Tr. 115).
 In this case the Respondents did not object to the utilization of the
 negotiated grievance procedure for Fall on the ground that he was a
 supervisor within the meaning of Section 7103(a)(10), and the Shipyard
 never interposed the defense that Fall was not a member of the
 bargaining unit (Tr. 116-118).  However, arguably this issue could have
 been raised by the Shipyard as a threshold question in any arbitration
 proceeding.
 
 
    /14/ Aggrieved employees also had the right to select fourth step
 consideration of grievances by the Shipyard Commander in lieu of
 arbitration (G.C. Exh. 11 at pages 146-147).
 
 
    /15/ The Council President was not a member of the Council Grievance
 Committee, and had no authority of his own to formulate Council
 decisions relating to the cases which would proceed to arbitration (Tr.
 126-127).  President O'Brien's testimony was deemed credible on this
 factual issue and other related matters pertaining to the method
 utilized by the Council to determine whether arbitration should be
 funded;  however, testimony offered by President O'Brien to show Council
 funding of arbitrations relating to grievances of bargaining unit
 employees who were not Union members, was successfully impeached.
 
 
    /16/ Fall testified that he was aware of his right to retain an
 attorney to represent him, but that he decided to proceed with Marcotte
 as his representative (Tr. 55).  Although he vaguely questioned
 Marcotte's capacity to represent him (Tr. 55-56), he determined that
 this was not a reason to seek other representation.  No issue concerning
 negligence on the part of Marcotte is involved.
 
 
    /17/ The complaint does not reflect reliance upon these alleged
 statements of Marcotte as a basis for a Section 7116(b)(1) violation.
 
 
    /18/ The exact date of the meeting was established by G.C. Exh. 9, a
 copy of the minutes prepared after the meeting.
 
 
    /19/ G.C. Exh. 12, a copy of the minutes of the business meeting held
 on December 27, 1979, was introduced into the record to establish that
 the Fall grievance matter was not presented to Local 745 for
 consideration since these minutes reflect no reference to the Fall
 grievance.  However, Fall's testimony corroborates other evidence that
 Local 745's membership was presented with the issue on November 29,
 1979.  Also in paragraphs 6(a) and 7(a) of the complaint it is alleged
 that Respondents, on or about November 28, 1979, failed or refused to
 arbitrate the Fall grievance because of Fall's non-Union status.  From
 the foregoing, it is clear that the minutes of the December 27, 1979
 meeting have no bearing upon factual determinations involved herein.
 
 
    /20/ As previously noted, prior to Council consideration both cases
 were presented to Local 745 in accordance with the practice of
 determining whether the Local w