14:0731(97)CA - Navy, Norfolk Naval Base, Norfolk, Virginia and Michael David Culp -- 1984 FLRAdec CA



[ v14 p731 ]
14:0731(97)CA
The decision of the Authority follows:


 14 FLRA No. 97
 
 DEPARTMENT OF THE NAVY
 NORFOLK NAVAL BASE
 NORFOLK, VIRGINIA
 Respondent
 
 and
 
 MICHAEL DAVID CULP
 Charging Party
 
                                         Case No. 3-CA-1966
 
                            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 as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other alleged unfair labor practices and, in
 effect, recommended dismissal of the complaint with respect to them.
 Thereafter, 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.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Norfolk Naval Base;  Norfolk, Virginia, shall:
 
    1.  Cease and desist from:
 
    (a) Requiring any bargaining unit employee of the Norfolk Naval Base,
 Norfolk, Virginia, to take part in an examination or investigative
 interview in connection with an investigation, without union
 representation, if such representation has been requested by the
 employee, and if the employee reasonably believes that the examination
 or investigative interview may result in disciplinary action against
 such employee.
 
    (b) Discriminating against Michael David Culp in any manner in order
 to discourage membership in, or activities on behalf of, the American
 Federation of Government Employees, AFL-CIO, Local 2225.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing its 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 effectuate the
 purposes and policies of the Statute:
 
    (a) Expunge from Michael David Culp's personnel records, all copies
 of a letter of reprimand dated February 24, 1981, addressed to Michael
 David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk Naval
 Base, Norfolk, Virginia.
 
    (b) Post at its facilities at the Norfolk Naval Base, Norfolk,
 Virginia, copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Such forms shall be signed by the
 Commander of the Norfolk Naval Base, or his designee, and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such 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, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the portion of the complaint in Case No.
 3-CA-1966 found not to have violated the Statute be, and it hereby is,
 dismissed.  
 
 Issued, Washington, D.C., May 24, 1984
 
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 Chairman Mahone, concurring:
 
    I agree with my colleagues and the Administrative Law Judge, that
 under the particular facts of this case, /1A/ the Charging Party's
 belief that the investigatory examination was likely to result in the
 imposition of discipline, was reasonable.  Accordingly, pursuant to
 section 7114(a)(2)(B) of the Statute, he was entitled to insist upon
 having a union representative present at such an interview, and any
 disciplinary action taken against him for his refusal to submit to the
 interview in the absence of a union representative would result in the
 violation of section 7116(a)(1) and (8).
 
    However, I am writing separately in order to stress that our decision
 today does nothing to change the requirement that the reasonableness of
 the belief be based on objective rather than subjective criteria.  In
 this regard, it must be emphasized that, in the usual case, when the
 management representative who is about to conduct the interview gives
 assurances to the employee that the imposition of discipline is not
 contemplated, then that employee's continued belief to the contrary can
 only be characterized as subjective, and therefore, unreasonable.  Under
 such circumstances, the employee's refusal to proceed with the interview
 in the absence of a union representative would no longer be protected
 conduct, and any disciplinary action imposed on the basis of such a
 refusal would be justified.  
 
 Issued, Washington, D.C., May 24, 1984
 
                                       Barbara J. Mahone, Chairman
                                       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 require any bargaining unit employee of the Norfolk Naval
 Base, Norfolk, Virginia, to take part in an examination or investigative
 interview in connection with an investigation, without union
 representation, if such representation has been requested by the
 employee, and if the employee reasonably believes that the examination
 or investigative interview may result in disciplinary action against
 such employee.
 
    WE WILL NOT discriminate against Michael David Culp in any manner in
 order to discourage membership in, or activities on behalf of, the
 American Federation of Government Employees, AFL-CIO, Local 2225.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees of the Norfolk Naval Base, Norfolk, Virginia, in the
 exercise of their rights assured by the Federal Service Labor-Management
 Relations Statute.
 
    WE WILL expunge from Michael David Culp's personnel records all
 copies of a letter of reprimand dated February 24, 1981, addressed to
 Michael David Culp by Assistant Fire Chief Fred T. Richardson, Norfolk
 Naval Base, Norfolk, Virginia.
                                       (Activity)
 
 Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C.
 20033-0758 and whose telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-1966
    Dennis K. Reischl
          For the Respondent
 
    Sharon Prost, Esquire
    Peter Robb, 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.
 
    It was alleged in the complaint that the Department of the Navy,
 Norfolk Naval Base, Norfolk, Virginia (Respondent), failed to comply
 with Section 7114(a)(2)(B) of the Statute by issuing a February 24, 1981
 letter of reprimand to Mr. Michael D. Culp (Charging Party), a GS-5
 Firefighter, assigned to Station 1, Norfolk, Naval Base, because Mr.
 Culp refused a January 23, 1981 request to go to the office of Station
 Chief J. R. Davis, unaccompanied by a Union representative, for the
 purpose of participating in a discussion with Station Chief Davis
 concerning Mr. Culp's job performance and job attitude.  The issuance of
 the reprimand was alleged to constitute an unfair labor practice within
 the meaning of Section 7116(a)(1), (2) and (8) of the Statute.
 
    It was also alleged that the Respondent failed to comply with Section
 7114(a)(2)(B) of the Statute by refusing to allow Mr. Culp and a Union
 representative a reasonable time in which to confer prior to attending a
 meeting with Station Chief Davis concerning Mr. Culp's earlier refusal
 to participate in the discussion, and further that the failure to permit
 time to confer constituted an unfair labor practice within the meaning
 of Sections 7116(a)(1), and (8) of the Statute.  /1/
 
    Counsel representing the Respondent moved for dismissal of the
 complaint on the ground that none of the allegations raised in the
 complaint were first raised by the Charging Party in a charge or amended
 charge.  Counsel representing the Respondent also argued that Mr. Culp
 could have had no reasonable belief that the discussion sought by
 Station Chief Davis might result in disciplinary action against him, and
 that as a result, his refusal to meet with the Station chief was not
 protected under the provisions of Section 7114(a)(2)(B).  In response to
 the alleged failure to allow time to confer with a Union representative
 it was argued that the Respondent had no obligation under the provisions
 of Section 7114(a)(2)(B) to allow Mr. Culp time in which to confer with
 a Union representative in advance of meeting scheduled merely to
 announce a pending disciplinary action.  Respondent argued that counsel
 for the General Counsel failed to sustain the burden of proving the
 alleged unfair labor practices by a preponderance of the evidence.
 
    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.  Post-hearing briefs were received
 from counsel representing the General Counsel and counsel representing
 the Respondent.  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, /2/ and the briefs, I make the following findings of fact,
 conclusions and recommendations:
 
                             Findings of Fact
 
    Employee Insubordination Reported to Station Chief Davis
 
    During the morning of January 23, 1981, Lead Firefighter (Captain)
 Donald Wilson instructed Mr. Culp to perform certain duties involving
 stripping and waxing floors in the watch office and kitchen of Fire
 Station 1, Norfolk Naval Base.  (Tr. 29-30, 121).  Captain Wilson also
 assigned certain unspecified duties of a similar nature to Firefighter
 David Tindel.  (Tr. 128-129).  A dispute arose between Captain Wilson
 and Mr. Culp, and between Captain Wilson and Mr. Tindel, concerning the
 performance of work assigned.  A heated discussion lasting "a few
 minutes" ensued between Mr. Culp and Captain Wilson while the work was
 being performed.  (Tr. 30-32).  The exchange involved threatening words
 uttered by both participants (Tr. 31-32), and was not like any other
 earlier discussion had by Captain Wilson and Mr. Culp.  (Tr. 31-32).
 /3/ Mr. Tindel also made remarks constituting insubordination to Captain
 Wilson.  (Tr. 123, 128, 137).  Mr. Tindel admitted making "hot-tempered"
 remarks that he should not have made (Tr. 131), and that his exchange
 with Captain Wilson was serious in nature.  (Tr. 132).  At least some of
 Mr. Tindel's insubordination occurred in the presence of Mr. Culp.  (Tr.
 31-32).
 
    As a result of the insubordination described, Captain Wilson reported
 details of his encounters with Mr. Culp and Mr. Tindel to Station Chief
 Davis (Tr. 122) and requested Chief Davis to meet with the two
 employees.  He testified:
 
          I just asked him if he would have a talk, and if there was a a
       problem, to get it in the air and find out what was going on.
       (Tr. 124).
 
    Station Chief Davis described Captain Wilson's report in similar
 terms, and indicated that Captain Wilson's problem with Mr. Culp had
 been a continuing one.  (Tr. 89-90, 110).  Station Chief Davis testified
 that he hoped to have a discussion with Mr. Culp concerning Mr. Culp's
 insubordination, but that he did not then contemplate disciplinary
 action.  (Tr. 107-108).
 
    It was established that in cases involving insubordination it was a
 normal procedure to inquire into the matter for the purpose of
 determining appropriate action.  (Tr. 118, 147).  Insubordination by
 firefighters toward lead firefighters was considered a potentially
 serious matter.  It was felt that disobedience could possibly result in
 loss of life during firefighting activity.  (Tr. 111-112).
 
    Station Chief Davis Takes Action to Inquire Into Reports of
 Insubordination
 
    Later in the morning of January 23rd, Station Chief Davis asked
 Captain Wilson to summon Mr. Tindel to his office.  (Tr. 138).  Mr.
 Tindel knew, without his having to ask, that he was being summoned
 because of his insubordination earlier that morning.  (Tr. 139).
 Station Chief Davis made inquiry concerning his conduct, received Mr.
 Tindel's response, and then admonished him.  (Tr. 90-91, 114, 116,
 124-126, 132).  In concluding his meeting with Mr. Tindel, Station Chief
 Davis requested him to ask Mr. Culp to report to him.  While enroute
 down a flight of stairs leading to the upstairs section of the Fire
 Station where the Station Chief's office was located, Mr. Tindel told
 Mr. Culp that he had been admonished and that Station Chief Davis wanted
 to see him.  (Tr. 32-33).  /4/ Because Mr. Culp did not report
 immediately, Captain Wilson was dispatched by Station Chief Davis to
 summon Mr. Culp.  (Tr. 91-92, 125-126, 134).  Captain Wilson was told by
 Mr. Culp that he (Mr. Culp) was trying to contact a Union
 representative.  (Tr. 134).  Captain Wilson then proceeded back upstairs
 toward Station Chief Davis' office and Mr. Culp followed a few minutes
 later.  (Tr. 134).  There was no indication that Captain Wilson denied
 or otherwise advised Mr. Culp that a Union representative would not be
 needed.
 
    Station Chief Davis and Captain Wilson were waiting for Mr. Culp in
 Chief Davis' office.  (Tr. 34).  Mr. Culp became apprehensive when he
 saw them.  Due to the circumstances, particularly the fact that he had
 never been summoned to Station Chief Davis' office before (Tr. 104,
 113), he worried that some administrative action might be taken against
 him (Tr. 34-35).  /5/
 
    Chief Davis started to explain the purpose of the meeting, but Mr.
 Culp stated that he wanted to have a Union representative present during
 the meeting (Tr. 34, 92, 97, 125-126).  Mr. Culp testified that Chief
 Davis agreed at this point to allow a Union representative to be
 present, and that he then left and went downstairs.  (Tr. 34).  Station
 Chief Davis testified that he instructed Mr. Culp to "wait right here
 and let me go see", and that he did not give Mr. Culp permission to have
 a Union representative present.  (Tr. 92, 97).  Captain Wilson's
 testimony differed substantially from that of Station Chief Davis.  He
 related that Station Chief Davis made no response at all, and that Mr.
 Culp left them and went downstairs.  (Tr. 125-126).
 
    On the basis of the record it is possible to conclude that Mr. Culp's
 request for a Union representative was not immediately questioned by
 Station Chief Davis, although conflict exists concerning whether Station
 Chief Davis acquiesced when Mr. Culp said that he would not attend the
 meeting unaccompanied by a Union representative.
 
    Request Made for Union Representative to Attend Meeting and
 Subsequent Cancellation of Request by Respondent
 
    Mr. Culp requested that Mr. Jack Overby, Chief Steward of American
 Federation of Government Employees, AFL-CIO, Local 2225, be made
 available for the meeting with Station Chief Davis.  (Tr. 28).  Local
 2225, is the exclusive bargaining representative of firefighters
 employed at the Norfolk Naval Base.  Mr. Culp made the request by
 phoning Station Chief B. R. Todd, the supervisor in charge of Fire
 Station 3, as Mr. Overby worked in Fire Station 3 under Station Chief
 Todd.  (Tr. 35-37).  Chief Todd agreed to see that Mr. Overby attended
 the meeting.  A few minutes later Chief Todd phoned Mr. Culp and warned
 him not to attend the meeting with Station Chief Davis until Mr. Overby
 arrived to assist Mr. Culp.  (Tr. 36-38, 49).
 
    Chief Todd informed Mr. Overby early in the afternoon of January 23rd
 that he was needed by Mr. Culp at Fire Station 1.  (Tr. 63-64).  While
 enroute to Fire Station 1, Mr. Overby was instructed by radio to return
 to Fire Station 3.  (Tr. 63-65).  Upon his return Station Chief Todd
 told Mr. Overby to return to work.  (Tr. 65).  The record disclosed that
 Assistant Fire Chief Umphlett, who was Station Chief Davis' supervisor,
 admitted that he canceled Mr. Culp's earlier request that Mr. Overby be
 allowed to go to Fire Station 1 to represent Mr. Culp during the meeting
 with Station Chief Davis.  (Tr. 97-98).
 
    Basis of Disciplinary Action Taken
 
    Station Chief Davis sought counsel from his supervisor, Assistant
 Fire Chief Umphlett, when Mr. Culp refused to meet with him.  (Tr.
 92-93).  Assistant Chief Umphlett asked whether disciplinary action was
 contemplated, and when told that such was not intended, Chief Umphlett
 noted that under the terms of the collective bargaining agreement, Mr.
 Culp was not entitled to a Union representative unless disciplinary
 action was intended.  He recommended that Station Chief Davis advise Mr.
 Culp of this, and then, "see if he'll come up to your office." (Tr.
 93-94).
 
    Station Chief Davis approached Mr. Culp with a copy of the collective
 bargaining agreement in his hand.  He advised Mr. Culp that according to
 the agreement he did not need a representative, that no disciplinary
 action was contemplated, and that he just wanted to talk to Mr. Culp.
 (Tr. 38, 50-51, 94-95, 134-135, 142-143).  Mr. Culp insisted upon a
 Union representative being present, and stated that he would attend when
 the representative requested arrived.  (Tr. 39, 135, 143).  Station
 Chief Davis informed Mr. Culp three or four times that he was refusing
 (Tr. 39), advised him that he was failing to obey orders (Tr. 94-95),
 and gave Mr. Culp a direct order to go to his (Station Chief Davis')
 office to discuss the matter.  (Tr. 135).  Mr. Culp insisted that he was
 not refusing and that he would go when the representative arrived.  (Tr.
 39).
 
    Station Chief Davis again sought advice from Assistant Chief
 Umphlett, who in turn sought counsel from those higher in the chain of
 command.  (Tr. 95-96).  They were advised to arrange a meeting with Mr.
 Culp to inform him that a proposed disciplinary action would be filed
 against him for failing to comply with a verbal order.  (Tr. 96).  Mr.
 Culp was then informed by Station Chief Davis that Mr. Culp would, at
 this point, need a Union representative, that Mr. Overby would be
 summoned, and that the matter was turning into a disciplinary action for
 failing to obey a direct order.  (Tr. 41, 96).  Station Chief Davis
 phoned Station Chief Todd and requested that Mr. Overby be allowed to
 represent Mr. Culp.  (Tr. 98).
 
    Mr. Culp Formally Advised of Proposed Disciplinary Action and
 Disciplinary Action Taken
 
    The Charging Party contends that upon the arrival of Mr. Overby,
 Station Chief Davis ordered him and Mr. Overby to his office
 immediately, and that a request made by Mr. Culp for time to explain the
 situation to Mr. Overby was refused.  (tr. 41-42).  Mr. Overby's
 testimony was similar except that he could not recall whether he or Mr.
 Culp made the initial request for time in which to confer.  (Tr. 68-69,
 74-75).  Station Chief Davis testified that he asked Mr. Overby and Mr.
 Culp if they were ready, that he received an affirmative response from
 them, and that they then all went up to Station Chief Davis' office.
 (Tr. 98, 99).  He denied that there was any request to confer prior to
 his meeting with Mr. Overby and Mr. Culp.  (Tr. 99).  Captain Wilson and
 Mr. Tindel corroborated Chief Davis in part.  (Tr. 127-128, 136, 143,
 145-146).  However, Captain Wilson stated that he did not hear anything
 that was said between Station Chief Davis, Mr. Overby and Mr. Culp
 before they proceeded upstairs.  (Tr. 130).  Although it is not
 necessary to decide this factual issue, it is nevertheless determined
 that the testimony of Mr. Culp and Mr. Overby should be credited.  This
 conclusion is reached as a result of Captain Wilson's statement that he
 heard no conversation of the type described by Station Chief Davis,
 before the group proceeded upstairs;  on the fact that such a request
 would have been made in the normal course of events;  on proof of the
 expedited arrangements made by Station Chief Davis to schedule a meeting
 with Mr. Overby in attendance;  and lastly on factors relating to the
 demeanor of witnesses.
 
    The witnesses for the General Counsel and Charging Party all
 testified that at the meeting which followed, Station Chief Davis
 announced that he planned to recommend that Culp be disciplined for
 failing to comply with a direct order, and that Station Chief Davis then
 refused repeated requests to discuss details of the matter, or to
 respond to questions concerning the subject.  It was conclusively
 established that Station Chief Davis asked no questions and made no
 inquiry concerning Mr. Culp's alleged insubordination.  (Tr. 73).
 
    On February 24, 1981, Mr. Culp received a letter of reprimand from
 Assistant Fire Chief Fred T. Richardson, Norfolk Naval Base, for delay
 in carrying out Station Chief Davis' instructions on January 23, 1981.
 (G.C. Exh. 2).  It included the following as a basis for the reprimand:
 
          At approximately 1420 on 23 January 1981, Station 1 Fire Chief
       J. R. Davis instructed you to come to his office.  Chief Davis
       wanted to discuss with you job performance and attitude toward
       your job.  You informed Chief Davis that you would not see and
       talk with him unless you had your union representative with you.
       Chief Davis told you that he did not think it was necessary to
       have a representative present.  Chief Davis again instructed you
       to come to his office, to which you replied, "I will when my union
       representative comes, and he has not come yet." You did not report
       to Chief Davis' office as you were instructed to do.
 
    It was ordered that a copy of the reprimand be filed in Mr. Culp's
 Official Personnel Folder for a period not to exceed two years.
 
                        Discussion and Conclusions
 
    With respect to Respondent's motion to dismiss the complaint on the
 ground that none of the allegations raised in the complaint were first
 raised by the Charging Party in a charge or amended charge, it is noted
 that the charge, insofar as it is pertinent here, alleged that the
 Respondent, through the conduct of Station Chief Davis on January 23,
 1981, failed to comply with the provisions of Section 7114(a)(2)(B)(ii),
 and violated Sections 7116(a)(1) and (8), by refusing to discuss with
 Mr. Culp and a Union representative, a disciplinary action which Station
 Chief Davis intended to initiate against Mr. Culp.  /6/
 
    In Defense Logistics Agency, 5 FLRA No. 21 (February 12, 1981), the
 Authority adopted the following language to describe the nature and
 function of a charge:
 
          In the private sector, the Supreme Court and many Circuit
       Courts have upheld the NLRB's view that a charge is not a pleading
       and does not require the specificity of a pleading.  It merely
       serves to initiate Board investigation to determine whether a
       complaint shall be issued (citing authority).  (Administrative Law
       Judge Decision at page 19, footnote 19).
 
    It does not appear that the Authority has yet ruled specifically on
 the degree of relationship required between allegations in a
 pre-complaint charge and allegations in a complaint.  In a case arising
 under the Executive Order, the Assistant Secretary approved an
 Administrative Law Judge decision holding that the inclusion of an
 allegation in a complaint when not previously included in the charge, is
 permitted so long as it is "even rather remotely encompassed by any
 language of the original charge. . . ." Department of the Air Force
 Headquarters, Air Force Flight Test Center, Edwards Air Force base,
 California, A/SLMR 255 (March 14, 1973).
 
    In a Statute case now pending before the Authority, Administrative
 Law Judge Burton S. Sternberg noted the following on the basis of
 private sector authority:
 
          "(I)t is well established that a complaint need not be confined
       to . . . the specific matters set forth in a charge.  Additional
       allegations may be included in a complaint as long as such
       allegations bear a relationship to the charge and are closely
       related to the events complained of in the charge.  /7/
 
    In this case events leading to pertinent portions of the charge, and
 the allegations of the complaint, emanated from Mr. Culp's January 23,
 1981, refusal to respond to Chief Davis' directive to go to Station
 Chief Davis' office unaccompanied by a Union representative.  Both the
 charge and the complaint pertain to elements of the factual picture
 developed as a result of Mr. Culp's refusal.  The conduct of Station
 Chief Davis and Mr. Culp is involved in the allegations set forth in the
 charge and in the allegations of the complaint.  The proposal to
 discipline Mr. Culp is a common factual segment of both, and the charge
 and the complaint refer to a failure to comply with the provisions of
 Section 7114(a)(2)(B) with respect to conduct arising out of Chief
 Davis' handling of the unsuccessful effort to compel Mr. Culp to go to
 the meeting unaccompanied by a Union representative.  Inasmuch as the
 events alleged in the charge and the complaint are closely related, no
 basis exists for dismissal of the allegations of the complaint on the
 ground that they were not set forth in the charge.
 
    Sections 7116(a)(1), (2) and (8) of the Statute provide:
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
          (2) to encourage or discourage membership in any labor
       organization by discrimination in connection with hiring, tenure,
       promotion, or other conditions of employment;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    Section 7102 of the Statute sets forth certain employee rights
 including 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 further that each employee shall be protected in the
 exercise of such right.  Section 7114(a)(2)(B) provides:
 
          (2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
                                .  .  .  .
 
          (B) any examination of an employee in the unit by a
       representative of the agency in connection with an investigation
       if--
 
          (i) the employee reasonably believes that the examination may
       result in disciplinary action against the employee;  and
 
          (ii) the employee requests representation.
 
    The threshold question posed in this case is whether Station Chief
 Davis sought to subject Mr. Culp to an "examination" within the meaning
 of Section 7114(a)(2)(B).  That is, a determination as to whether
 violations of Section 7116(a)(1), (2) and (8) occurred depends upon
 whether or not Mr. Culp's insistence upon the presence of a Union
 representative involved a right protected by Section 7114(a)(2)(B).
 
    The legislative history of Section 7114(a)(2)(B) discloses that it
 was enacted in response to the decision of the Supreme Court in National
 Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959
 (1975).  Weingarten held, inter alia, that under the National Labor
 Relations Act an employee has the right to the presence of a union
 representative at "an investigative interview which he reasonably
 believes may result in the imposition of discipline." Prior to the
 enactment of the Statute there existed no comparable right under
 Executive Order 11491, to representation during an investigative
 interview.  This is spelled out in Federal Labor Relations Council
 Statement on Major Policy Issue No. 75P-2 (December 2, 1976), 4 FLRC
 709.
 
    The Authority has determined that only objective facts relating to
 the interview of an employee, as distinct from an employee's subjective
 feelings, may be considered in answering whether an employee reasonably
 believed that discipline might result from the interview.  Internal
 Revenue Service, Washington, D.C., and Internal Revenue Service,
 Hartford District Office, 4 FLRA No. 37 (September 26, 1980);  Lackland
 Air Force Base Exchange, Lackland Air Force Base, Texas, 5 FLRA No. 60
 (April 17, 1981).  Also, the mere characterization of a meeting as a
 "counseling session" would not operate to remove it from the protection
 of the Statute.  Federal Aviation Administration, St. Louis Tower,
 Bridgeton, Missouri, 6 FLRA No. 116 (September 24, 1981).  In the
 Federal Aviation Administration case the Authority held that the
 designation of a meeting as "an interview, investigation or counseling,"
 is immaterial, and that an employee is entitled under Section
 7114(a)(2)(B), to union representation whenever the circumstances
 underlying a meeting make it reasonable to envision that a discussion of
 an employee's conduct might lead to discipline.
 
    The facts adduced in this case indicate that an "investigation"
 within the meaning of Section 7114(a)(2)(B) was initiated by Station
 Chief Davis following Captain Wilson's report of insubordination on the
 part of Mr. Culp and Mr. Tindel.  Captain Wilson asked Station Chief
 Davis to inquire into the matter.  Mr. Culp's prior insubordination had
 been a continuing problem to management.  Station Chief Davis
 acknowledged that although he did not then contemplate taking any
 disciplinary action, he wanted to inquire into the allegations made by
 Captain Wilson, and that such an inquiry was needed to determine
 appropriate action.  Such investigations or inquiries were a normal
 procedure in such cases, as insubordination by firefighters was
 considered a serious matter generally, and one which could result in
 loss of life on the job.  On the basis of the foregoing it is clear that
 an investigation into the conduct of Mr. Culp was in progress when Mr.
 Culp was summoned to Station Chief Davis' office by Mr. Tindel, and
 Captain Wilson.
 
    The record also discloses that Station Chief Davis sought to subject
 Mr. Culp to an examination in connection with the investigation.
 Respondent does not dispute the fact that Station Chief Davis sought to
 question Mr. Culp concerning the alleged misconduct reported by Captain
 Wilson.  It also appeared that objective facts in the record indicate
 that Mr. Culp reasonably believed that the examination sought might
 result in disciplinary action against him.  Mr. Culp was aware of his
 own insubordination and that of Mr. Tindel.  Being an experienced
 firefighter, he would necessarily have been aware of the serious nature
 of insubordination in the type of work being performed.  He was advised
 by Mr. Tindel that Station Chief Davis wanted to see him, and further
 that Mr. Tindel had been admonished in connection with the matter.  The
 seriousness of the inquiry was emphasized by Captain Wilson's request
 that he report to Station Chief Davis' office, by the fact that he had
 never before been summoned to Station Chief Davis' office, and by the
 fact that he had experienced an earlier confrontation with Captain
 Wilson.  These factors also tended to tie tightly together his
 perceptions concerning the underlying reason for the summons, since Mr.
 Tindel and Captain Wilson were the other principal actors in the
 conflict which had erupted earlier that day.
 
    Captain Wilson's failure to respond to Mr. Culp's statement that he
 (Mr. Culp) was trying to contact a Union representative would have
 provided no assurance whatsoever that the inquiry was less serious than
 Mr. Culp envisioned, and the picture of Captain Wilson and Station Chief
 Davis awaiting Mr. Culp's arrival in Chief Davis' office quite naturally
 would have led to a strengthening of his belief that the examination
 might result in disciplinary action.
 
    It appeared that although a serious factual dispute exists as to
 whether Station Chief Davis acquiesced when Mr. Culp initially requested
 that a Union representative be present, the record does indicate that
 nothing was then said by Station Chief Davis which could have served to
 lessen Mr. Culp's concern and apprehension.  Assuming Station Chief
 Davis' version of the facts to be true, it must be concluded that
 Station Chief Davis' reaction could conceivably have served to provide
 an additional basis for Mr. Culp's concern.
 
    The final element leading Mr. Culp to a conclusion that he was in
 danger of disciplinary action is reflected in the fact that Station
 Chief Todd instructed Mr. Culp not to attend the meeting with Station
 Chief Davis without a Union representative.  This advice, emanating as
 it did from the same relative management level as that from which
 Station Chief Davis was speaking, would have necessarily provided an
 additional basis for Mr. Culp's belief.
 
    Under the circumstances outlined it is immaterial that Respondent
 reached the conclusion that the Union had no right to be represented.
 Station Chief Davis' position was a legal one.  He advised Mr. Culp that
 since no formal disciplinary action was then intended, Mr. Culp was not
 entitled to a representative.  /8/ This argument neglects to take into
 consideration the fact that the results of the examination of Mr. Culp
 were then unknown, and further that from Mr. Culp's point of view it
 would have been important to have representation during the
 investigative stage, when possible administrative decisions were being
 formulated.  Station Chief Davis merely said that disciplinary action
 was not then contemplated.  This points out the obvious.  Seldom, if
 ever, is disciplinary action contemplated at the outset of an inquiry.
 Here, the facts indicated that the reason for the examination was to
 receive Mr. Culp's side of the story.  Neither Mr. Culp, nor Station
 Chief Davis had any way of knowing the final results of his inquiry, or
 the disposition of the matter, prior to the examination of Mr. Culp.
 Moreover, Mr. Culp received no firm assurance that his statements during
 the interview would not lead to disciplinary action against him.
 
    There was an affirmative obligation on the part of the Respondent to
 provide the exclusive representative an opportunity to be present during
 the examination, and an affirmative obligation to take no administrative
 action to otherwise interfere with the exercise of this right.  Lackland
 Air Force Base Exchange, Lackland Air Force Base, Texas, supra;  U.S.
 Department of the Navy, U.S. Marine Corps, Marine Corps Logistics Base,
 Albany, Georgia, 4 FLRA No. 54 (September 30, 1980).  On the basis of
 the foregoing it is concluded that the failure to provide an opportunity
 for the exclusive representative to be represented at the examination
 under circumstances outlined herein constituted a failure to comply with
 the provisions of Section 7114(a)(2)(B).  Since disciplinary action
 taken against Mr. Culp related closely to Mr. Culp's insistence upon
 Section 7114(a)(2)(B) rights, it must also be concluded that the
 disciplining of Mr. Culp also constituted a failure to comply with
 Section 7114(a)(2)(B).
 
    It follows therefore that the taking of disciplinary action against
 Mr. Culp violated Section 7116(a)(1) in that it interfered with,
 restrained, and coerced Mr. Culp in his exercise of rights provided in
 Section 7102 of the Statute.  The same conduct constitutes a violation
 of 7116(a)(8) in that it represents a failure on the part of the
 Respondent to comply with the provisions of Section 7114(a)(2)(B).
 
    In order to establish a violation of Section 7116(a)(2) there must be
 a showing that the alleged victim of discrimination was engaging in
 protected activity, that the agency had knowledge of such activity, and
 that the agency took action because of anti-union animus.  United States
 Department of Labor, 1 FLRA No. 120 (September 28, 1979);  Veterans
 Administration Center, Leavenworth, Kansas, 1 FLRA No. 111 (September
 20, 1979);  U.S. Customs Service, Region IV, Miami, Florida, 1 FLRA No.
 108 (September 13, 1979).  The element of discriminatory motivation
 needed to establish a Section 7116(a)(2) violation may be inferred from
 circumstantial evidence.  U.S. Customs Service, Region IV, Miami,
 Florida, supra, Veterans Administration Center, Leavenworth, Kansas,
 supra.
 
    The Authority has also held that in examining discrimination where an
 employee 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, 529 U.S. 274
 (1977) (involving conduct protected by the United States Constitution).
 The Authority stated that the burden is on the General Counsel to make a
 prima facie showing that the employee had engaged in protected activity
 and that the prohibited conduct was a motivating factor in the
 administrative action taken by the agency.  Once this is established,
 the agency may avoid responsibility only by showing by a preponderance
 of the evidence that it would have reached the same decision or taken
 the same action even in the absence of protected activity.  Internal
 Revenue Service, Washington, D.C., 6 FLRA No. 23 (June 17, 1981);
 Veterans Administration, Medical and Regional Office Center, White River
 Junction, Vermont, 6 FLRA No. 68 (August 5, 1981).
 
    In this case disciplinary action was taken ostensibly because Mr.
 Culp refused to attend the examination;  however, the record is clear
 that he did not refuse to attend the examination.  He refused to attend
 unless a right accorded under Section 7114(a)(2)(B) was first recognized
 and extended to him.  Since his refusal was wedded to his insistence on
 the Section 7114(a)(2)(B) right, it must be concluded that disciplinary
 action taken against Mr. Culp was predicated, at least in part upon Mr.
 Culp's insistence upon a protected right, and not solely because of Mr.
 Culp's refusal to respond to Station Chief Davis' order to participate
 in the examination.
 
    This is further evidenced by the fact that Station Chief Davis became
 incensed by Mr. Culp's continued insistence upon the presence of a Union
 representative, by statements made in an attempt to compel Mr. Culp to
 attend without a Union representative, and by the apparent causal
 relationship between Mr. Culp's insistence upon his right, and Station
 Chief Davis' immediate initiation of steps leading to the subsequent
 reprimand of Mr. Culp.  Since there was no showing by Respondent that
 the questioned disciplinary action would have been taken against Mr.
 Culp even if Mr. Culp had not been engaged in protected activity, it
 follows that the Respondent's conduct also constituted an unfair labor
 practice violative of Section 7116(a)(2) of the Statute.  Internal
 Revenue Service, Washington, D.C., supra.
 
    Turning to allegations that the Respondent failed to comply with
 Section 7114(a)(2)(B) of the Statute by refusing to allow Mr. Culp and
 Mr. Overby reasonable time to confer prior to attending their meeting
 with Station Chief Davis, it is noted that Section 7114(a)(2)(B) would
 not be applicable in the absence of an "investigation," or an
 "examination" within the meaning of Section 7114(a)(2)(B).  The record
 demonstrated that Station Chief Davis' meeting with Mr. Culp and Mr.
 Overby, involved no investigative effort on the part of the agency.
 There was no examination of Mr. Culp, no questions were addressed to
 him, and there is no indication in the record, that any investigation
 into the prior insubordination was then contemplated.  In fact, Station
 Chief Davis refused a request to discuss the case at this point.  He had
 already decided that action should be taken against Mr. Culp for
 refusing to obey his order.  The meeting with Mr. Culp and Mr. Overby
 was arranged solely for the purpose of advising Mr. Culp that
 disciplinary action would be taken.  The Respondent was under no
 obligation to give the Union an opportunity to be represented at a
 meeting wherein Station Chief Davis merely advised Mr. Culp and Mr.
 Overby that disciplinary action was being initiated against Mr. Culp.
 See United States Air Force, 2750th Air Base Wing Headquarters, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio,
 5-CA-736, 737, 738 and 805 (OALJ-81-135, July 15, 1981).
 
    In view of the foregoing, it is unnecessary to determine whether,
 under the provisions of Sections 7114(a)(2)(B), Mr. Culp would have been
 entitled to a reasonable time to confer with Mr. Overby prior to meeting
 with Station Chief Davis.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Norfolk Naval Shipyard, Norfolk, Virginia, shall:
 
    1.  Cease and desist from:
 
          (a) Requiring any bargaining unit employee of the Norfolk Naval
       Shipyard, Norfolk, Virginia, to take part in an examination or
       investigative interview in connection with an investigation,
       without union representation, if such union representative has
       been requested by the employee, and if the employee reasonably
       believes that the examination or investigative interview may
       result in disciplinary action against such employee.
 
          (b) Discriminating against Michael David Culp in any manner in
       order to discourage membership in, or activities on behalf of,
       American Federation of Government Employees, AFL-CIO, Local 2225.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its 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 effectuate the
 purposes and policies of the Statute:
 
          (a) Expunge from Michael David Culp's personnel records, all
       copies of letter of reprimand dated February 24, 1981, addressed
       to Michael David Culp by Assistant Fire Chief Fred T. Richardson,
       Norfolk Naval Base, Norfolk, Virginia.
 
          (b) Post at its facilities at the Norfolk Naval Base, Norfolk,
       Virginia, 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 of
       the Norfolk Naval Base and shall be posted and maintained for 60
       consecutive days thereafter in conspicuous places where notices
       are customarily posted.  Reasonable steps shall be taken by
       Respondent to insure that such 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, Region III, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
 Dated:  October 16, 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 N