25:1002(84)CA - Long Beach Naval Shipyard, Long Beach, CA and Long Beach Naval Station, Long Beach, CA and FEMTC -- 1987 FLRAdec CA



[ v25 p1002 ]
25:1002(84)CA
The decision of the Authority follows:


 25 FLRA No. 84
 
 LONG BEACH NAVAL SHIPYARD, 
 LONG BEACH, CALIFORNIA, AND 
 LONG BEACH NAVAL STATION, 
 LONG BEACH, CALIFORNIA
 Respondents
 
 and
 
 FEDERAL EMPLOYEES METAL 
 TRADES COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 8-CA-60037
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    The Administrative Law Judge issued the attached decision in this
 case finding that the Respondents had engaged in the unfair labor
 practices alleged in the complaint and recommending that the Respondents
 be ordered to cease and desist from those practices and take certain
 affirmative action.  The Respondents filed exceptions to the Judge's
 recommended remedy without contesting his findings or conclusions.  The
 General Counsel filed a motion to strike portions of the Respondents'
 brief in support of their exceptions and an opposition to the
 exceptions.  /*/
 
    Upon consideration of the Judge's Decision, the Respondents'
 exceptions, the General Counsel's opposition, and the entire record, the
 Authority adopts the Judge's findings and conclusions.  We also adopt
 his recommended order with modifications.
 
                              II.  Background
 
                                 A.  Facts
 
    The facts are described in depth by the Judge.  Briefly, on May 21,
 1985, the director of labor relations for the Respondent Shipyard asked
 Frank Griffin, Sr., acting president of the Charging Party (the Union),
 to go to the Respondent's sheet metal shop where there was trouble and
 see what he could do.  Griffin went to the shop and was directed to the
 general foreman's office, which was in "a complete shambles." A crowd
 had formed and several police officers stood by at the doorway.
 Employee Dunn, who had caused the disarray, was seated and was being
 calmed by a supervisor (Cannon) and a medical corpswoman (Dabbs).  At
 Griffin's arrival, Dabbs departed to use an ambulance radio.
 
    At this point Dunn again became agitated, and Cannon, Griffin and a
 police officer (Smith) restrained her.  As Cannon, Griffin, and officer
 Smith were intangled with Dunn, corpswoman Dabbs returned, having
 received a doctor's instructions to bring Dunn to the medical clinic.
 There was confusion and tempers flared.  Officer Smith stated that Dunn
 should be placed under arrest.  There was disagreement on this among the
 participants, and comments between Smith and Girffin regarding Griffin's
 role.  Ultimately, Smith did not arrest Dunn, who was instead taken to
 the clinic with the others following along.  At the clinic, Smith issued
 a criminal citation to Griffin, in connection with Griffin's conduct at
 the shop, for interfering with a police officer trying to make an
 arrest.  The complaint alleges that by the action of officer Smith in
 issuing the citation to Griffin, Respondents violated section 7116(a)(1)
 and (2) of the Statute.
 
                           B.  Judge's Decision
 
    Asexplained below, the Judge concluded that the Respondents had
 violated the Statute as alleged in the complaint.  To remedy the
 violation, he recommended that the Respondents be ordered to cease and
 desist from this conduct.  He also recommended that the Respondents be
 ordered to rescind the citation.
 
                      III.  Positions of the Parties
 
                       A.  Respondents' contentions
 
    While not contesting the Judge's findings of fact or his conclusion
 that the alleged unfair labor practice was committed, the Respondents
 except to the Judge's recommended remedy.  They contend that the
 citation issued to Griffin is no longer within their control, but forms
 a part of a criminal proceeding which is within the exclusive
 jurisdiction of a U.S. magistrate.  They argue that only the U.S.
 attorney and the magistrate responsible for the criminal proceeding can
 dispose of the offenses involved in that case and that an Authority
 order in this unfair labor practice proceeding which requires the
 Respondents to rescind the citation would interfere with the
 magistrate's jurisdiction.
 
    The Respondents also argue that the Authority should not issue an
 order which limits their issuance of such citations because this portion
 of the order would preclude them from conducting their internal security
 practices as provided under section 7106(a)(1) of the Statute.  In this
 regard, they argue that protected activity is not a shield against the
 issuance of citations where criminal prosecution is warranted.
 
                     B.  General Counsel's contentions
 
    Asserting that this proceeding is within the Authority's
 jurisdiction, the General Counsel states that the Authority's issuance
 of an appropriate remedy for the violation found by the Judge is
 entirely with the Authority's jurisdiction.  The General Counsel also
 asserts that this proceeding is severable from the magistrate's
 proceeding.  In the General Counsel's view, the Authority's remedy for
 matters which are within the Authority's jurisdiction does not abrogate
 the magistrate's jurisdiction.  According to the General Counsel, the
 magistrate will decide whether the Authority's disposition in this
 proceeding should be given weight for the matters within the
 magistrate's jurisdiction.
 
    In the General Counsel's view, the Respondents' internal security
 practice argument reflects a misunderstanding of the Judge's finding
 that Griffin had not engaged in conduct which removed his activity from
 the protections of the Statute.  The General Counsel also asserts that
 the Respondents' right to determine their internal security practices
 does not extend to practices which deny rights to employees which the
 Statute was designed to protect.
 
                       IV.  Analysis and Conclusions
 
                  A.  Recommended cease and desist order
 
    We reject the Respondents' contentions that we do not have
 jurisdiction to order the Respondents to cease and desist from issuing a
 citation in violation of the Statute.  In this regard, the General
 Counsel has shown that a criminal citation was issued to an employee by
 a law enforcement officer of the Department of Defense, who was acting
 as an agent for the Respondents, in connection with the employee's
 activities on behalf of an exclusive representative under the Statute.
 The Respondents have conceded that they are within the Authority's
 jurisdiction for the purposes of the complaint.  Moreover, the Judge
 found that the issuance of the citation arose out of the employee's
 activity on behalf of an exclusive representative (the Charging Party)
 under the Statute.  We agree.
 
    The Judge also rejected the Respondents' argument that the employee
 interfered with the officer so as to forfeit the protections of the
 Statute.  He found that there was no physical contact between the
 employee and the officer as contended by the Respondents.  He also found
 that while the employee spoke to the officer, the employee merely
 expressed an opinion in a harmless fashion and that the employee had
 conducted himself with the officer in a reasonable, nondisruptive
 manner.  On these findings, the Judge concluded that the employee had
 not forfeited his statutory protections by having engaged in flagrant
 misconduct as alleged by the Respondents.  Specifically, he ruled that
 the officer's motivation for issuing the citation to the employee was
 union animus.
 
    Based on these findings, which are supported by the record and which
 we affirm, the Judge concluded that the issuance of the citation
 constituted a violation of section 7116(a)(1) and (2) of the Statute.
 We affirm these conclusions and view them to be fully consistent with
 the Statute which guarantees employees the right, without fear of
 penalty or reprisal, to engage in activities on behalf of an exclusive
 representative under the Statute.  We emphasize, however, as was
 indicated by the Judge, that an employee's mere involvement in
 activities on behalf of an exclusive representative does not immunize
 the employee from agency discipline.  Consistent with the Statute, an
 employee may be disciplined for activities which are not specifically on
 behalf of the exclusive representative or which exceed the boundaries of
 protected activity such as flagrant misconduct.  United States Forces
 Korea/Eighth United States Army, 17 FLRA 718 (1985);  Defense Logistics
 Agency, Defense Depot Tracy, Tracy, California, 16 FLRA 703 (1984).  The
 Statute's protections were not intended to insulate employees from the
 consequences of behavior violating criminal statutes.
 
    Upon these determinations, section 7118(a)(7) mandates that we issue
 an order which requires the Respondents to cease and desist from this
 conduct.  Thus, we conclude that the order is not beyond the Authority's
 powers and does not conflict with the Respondents' right to determine
 their internal security practices.  See Department of the Treasury,
 Internal Revenue Service, Jacksonville District, and Department of the
 Treasury, Internal Revenue Service, Southeast Regional Office of
 Inspection, 23 FLRA No. 108 (1986) (the right to representation under
 section 7114(a)(2)(B) in criminal investigations does not conflict with
 management's legitimate prerogatives or its right to determine its
 internal security practices), petition for review filed on other matters
 sub nom., No. 86-1721 (D.C. Cir. Dec. 23, 1986);  Portsmouth Naval
 Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA No. 68
 (1986) (there is no indication in the Statute or its legislative history
 that Congress intended for there to be any exceptions to the
 prohibitions of section 7116(a)(1) and (2) other than those derived from
 the Statute itself), petition for review filed sub nom., No. 86-2046
 (1st Cir. Nov. 25, 1986).
 
                    B.  Recommended affirmative action
 
    Section 7118(a)(7) also authorizes the Authority to take such other
 action to remedy an unfair labor practice as will carry out the purposes
 of the Statute.  An order which requires the Respondents to rescind the
 citation, issued in violation of Statute, is necessary to carry out the
 purposes of the Statute.  See, for example, Bureau of Prisons, Federal
 Correctional Institution (Danbury, Connecticut), 17 FLRA 696 (1985)
 (written admonishment must be rescinded);  Department of the Treasury,
 Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984)
 (reprimand must be rescinded);  Department of the Navy, Puget Sound
 Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979) (2-day
 suspension must be rescinded).
 
    The Respondents argue that the Authority cannot adopt this portion of
 the Judge's recommended order because the citation at issue forms a part
 of a collateral proceeding before a Federal magistrate and that an
 Authority order which requires the Respondents to rescind the citation
 would interfere with the powers and jurisdiction of the magistrate.  We
 disagree.
 
    We have resolved the allegations of the complaint alleging that the
 Respondents have violated the Statute.  We have not resolved or disposed
 of criminal matters pending before the magistrate and have not intruded
 into or interfered with the appropriate disposition of those matters.
 However, we will take account of the Respondents' assertion, in their
 jurisdictional arguments, that they cannot rescind the citation because
 it is no longer within their possession and control.  We will require
 the Respondents to rescind the citation to the extent that it is within
 their possession and control.  We will also require the Respondents to
 serve a copy of this decision and order on the magistrate and any other
 authorities who may have control of the citation and require the
 Respondents to request the magistrate and such other authorities to give
 appropriate effect to the Authority's decision for the matters within
 their jurisdiction.
 
                                 V.  Order
 
    The Authority orders that the Long Beach Naval Shipyard and the Long
 Beach Naval Station, Long Beach, California, shall:
 
    1.  Cease and desist from:
 
    (a) Discriminating, retaliating, or taking reprisal against Frank
 Griffin, Sr., or any other employee by issuing a citation to that
 employee while or because the employee is engaged in protected activity
 on behalf of the Federal Employees Metal Trades Council, AFL-CIO, as
 exclusive representative under the Statute.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights guaranteed by the
 Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Rescind the citation issued to Frank Griffin, Sr., on May 21,
 1985, and expunge all references to the citation from their files or
 documents to the extent that the citation is within their control.
 
    (b) Serve a copy of this decision and order on the magistrate and any
 other authorities who may have control of the citation and request the
 magistrate and such other authorities to give appropriate effect to the
 Authority's decision for the matters within their jurisdiction.
 
    (c) Post at their facilities copies of the attached Notice on forms
 furnished by the Authority.  Upon receipt, the forms will be signed by
 the Commanders of the Naval Station and the Shipyard and be posted and
 maintained for 60 consecutive days in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps will be taken to ensure that these
 Notices are not altered, defaced, or covered by any other material.
 
    (d) Notify the Regional Director, Region VIII, Federal Labor
 Relations Authority, within 30 days of this Order and as required by
 section 2423.30 of the Authority's Rules and Regulations, of the steps
 which have been taken to comply.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO
 EFFECTUATE
 THE PURPOSES OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                      WE NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT discriminate, retaliate, or take reprisal against Frank
 Griffin, Sr., or any other employee by issuing a citation to that
 employee while or because the employee is engaged in protected activity
 on behalf of the Federal Employees Metal Trades Council, AFL-CIO, an
 exclusive representative under the Statute.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce employees in the exercise of their rights guaranteed by the
 Statute.
 
    WE WILL rescind the citation issued to Frank Griffin, Sr., on May 21,
 1985, and expunge all references to the citation from our files or
 documents to the extent that the citation is within our control.
 
    WE WILL serve a copy of this decision and order on the magistrate and
 any other authorities who may have control of the citation and request
 the magistrate and such other authorities to give appropriate effect to
 the Authority's decision for the matters within their jurisdiction.
                                       (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 VIII, Federal Labor Relations Authority, whose address
 is:  350 South Figueroa Street, 10th Floor, Los Angeles, California
 90071, and whose telephone number is:  (213) 894-3805.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 8-CA-60037
 
 LONG BEACH NAVAL SHIPYARD, LONG BEACH, 
 CALIFORNIA, AND LONG BEACH
 NAVAL STATION, LONG BEACH, CALIFORNIA
    Respondents
 
                                    and
 
 FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO
    Charging Party
 
 
    Mr. Eric S. Schulstad and
    Mr. Thomas R. Wilson
       For the Respondent
 
    Deborah S. Wagner, Esquire
       For the General Counsel
 
    Before:  ELI NASH, JR.
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq. (herein
 called the Statute).  It was instituted by the Regional Director of
 Region 8 based upon an unfair labor practice charge filed on November
 12, 1985 by the Federal Employees Metal Trades Council, AFL-CIO
 (hereinafter called the Union) against Long Beach Naval Shipyard, Long
 Beach, California and Long Beach Naval Station, Long Beach California
 /1/ (hereinafter called Respondent or Respondents).  The Complaint
 alleged that Respondents violated section 7116(a)(1) and (2) of the
 Statute by issuing a citation to Frank Griffin, Sr., because he engaged
 in protected union activity and Respondents have failed and refused, and
 continue to fail and refuse to rescind the citation.
 
    Respondent's Answer denied the commission of any unfair labor
 practices.
 
    A hearing was held before the undersigned in Los Angeles, California
 at which the parties were represented by counsel and afforded full
 opportunity to adduce evidence and to call, examine, and cross-examine
 witnesses and to argue orally.  Timely briefs were filed by the parties
 and have been duly considered.
 
    Upon consideration of the entire record in this case, including my
 observation of the witnesses and their demeanor, I make the following
 findings of fact, conclusions of law, and recommendations.
 
                             Findings of Fact
 
    Frank Griffin, Sr. has been employed by Respondent Shipyard as a
 sheet metal worker in Shop 17 for about 19 years.  Griffin for the past
 nine years, he has been President of the Sheet Metal Workers Union and a
 Vice-President of the Union.  As Vice-President of the Union one of his
 duties is to assume the role of President when the President, Frank
 Rodriguez, is not available.
 
    On May 21, 1985, while Rodriguez was absent from the Shipyard,
 Griffin was designated Acting President.
 
    Shortly after lunch on that day Gilbert Bond, the Director of Labor
 Relations at the Shipyard called the Union's office looking for Griffin.
  When told that Griffin was not in, he left a message for Griffin to go
 over to Shop 17 because there were problems there and Shelly Dunn was
 involved.  Bond wanted Griffin to go over and see what he could do about
 the problem.  Shortly thereafter, Griffin returned to the Union office,
 got the message, and immediately left for Shop 17.
 
    The Shelly Dunn mentioned above was an employee who at the time was
 allegedly having more than her share of problems.  At the time of this
 particular incident, Dunn was on detail to the Sheet Metal Shop from the
 EEO office, where she normally worked as a clerical employee.  When
 Griffin arrived at Shop 17, he spoke with supervisor, Dennis Wyzkowski,
 and explained why he was there, since this is not Griffim's normal work
 area.  Wyzkowski then directed Griffin to the General Foreman's office
 where the incident was still going on.
 
    When Griffin arrived at the General Foreman's office, the room was a
 complete shambles.  Glass was all over the floor from a broken window;
 typewriters, office equipment papers and trays were scattered all over
 the room.  Employee Shelly Dunn was sitting in the far corner of the
 room crying.  Bob Cannon, a supervisor from the EEO office, was sitting
 with Dunn and talking to her.  Cannon had known Dunn for sometime and
 had represented her while he was a union steward.  Several police
 officers were to Griffin's left as he stood in the doorway.  Although
 the officers were in the room, they were not, at that time, close to
 where Dunn was sitting.
 
    Prior to Griffin's arrival, an ambulance had arrived with a medical
 corpswoman, Jacqueline Dabbs, and ambulance attendants.  Dabbs testified
 that when she entered the office, Dunn was screaming at the top of her
 lungs and was "obviously not very coherent." However, Dabbs was able to
 calm her down and talk to her.  While she was talking with Dunn, Cannon
 came in and, shortly thereafter, Griffin arrived.  Both Griffin and
 Cannon, assisted Dabbs in calming Dunn down.  Once this was done, Dabbs
 attempted to contact the Medical Officer at the clinic on her radio, but
 for some reason she was unable to communicate with him from the room.
 She then left the room and had an ambulance attendant contact the clinic
 on the ambulance radio.  The attendant informed Dabbs that she was to
 take the patient Dunn to the clinic.
 
    While Dabbs was out of the room attempting to radio the clinic,
 Griffin and Cannon remained in the room with Dunn.  The police officers
 were still on the opposite side of the room near the door, and a crowd
 of employees and the foremen were standing around.  One of the Foremen
 tried to get the crowd dispersed by telling them they should go back to
 work.  According to Griffin, the supervisor used the word "circus" which
 set Dunn off again.  She sprung up screamed and began kicking and
 flailing about.
 
    At this point, the account told by Respondent's two witnesses differs
 substantially from the testimony of the other parties who testified.
 Cannon, who I credit, testified that he wrapped his arms around Dunn's
 waist and told Griffin to grab her feet, because she was kicking at
 things on the desk and he wanted to prevent her from doing any more
 damage.  Cannon grabbed her because he saw the DOD police officers were
 not making any move to stop Dunn, and he felt somebody had to act.
 Griffin grabbed her legs as Cannon suggested.  Griffin became concerned
 because Dunn was kicking wildly and he did not want to get kicked with
 the steel-toed shoes she was wearing as protective equipment, Griffin's
 attention at this point was focused on trying to hang on to her feet.
 Both Cannon and Griffin are large men well over six feet tall with each
 weighing about 270 pounds.  Dunn was described a tiny woman who weighs
 perhaps 105 pounds, so it was clear that she was being contained.  /2/
 Cannon continued talking to Dunn, trying to calm her down until he got
 her quiet again.  Dunn began telling Cannon that he was hurting her arm
 and asking him to stop hurting her.  Cannon with both arms around her
 waist realized that he did not have her arm so he turned and saw that
 Officer Smith was standing to his and Dunn's left, holding Dunn's arm
 twisted behind her.  Cannon asked the officer to let go of her arm and
 give him a chance to calm her down.  According to Cannon, he told the
 officer he wanted Dunn calm because he didn't want to see them have to
 manhandle her to restrain her.  The officer agreed and let go of Dunn.
 At about the same time, Dabbs returned to the room and said they would
 go ahead and transport Dunn to the clinic, so Cannon caught only the
 very end of a conversation between Griffin and Smith.  Cannon says that
 he heard the officer remark that he worked at the VA for some years and
 this was the kind of incident they handled frequently.  Cannon did not
 hear what Griffin said to promot this remark.
 
    Griffin's account of this incident up to the point where he had words
 with officer Smith is virtually identical and is also credited. With
 regard to the remainder of the incident he testified that after Dunn
 began screaming about her arm, Cannon asked the officer not to be so
 rough with Dunn, that she was a lady.  Griffin then said to the officer
 "she only weighs about 105 pounds, and you shouldn't use so much force."
 According to Griffin, Smith answered that he used to work for the VA,
 and he knew "how to handle these kind of people." Griffin also testified
 that Smith said, if this was the LAPD they would do worse things.
 Griffin replied, "That's not called for.  I mean, I don't think that
 even has anything to do with this." Griffin's assessment finds support
 in the testimony of Corpsman Dabbs who found Dunn to be terribly
 emotionally distressed and "emotionally unstable." Dabbs relayed this
 information to the doctor who ordered Dunn brought to the clinic for
 evaluation.  In Dabbs considerable experience in such matters, she
 testified that officers in such situations generally follow her back to
 the clinic.  At about the same time, Griffin recalls that Dabbs
 reappeared and asked for assistance getting Dunn into the ambulance.
 Griffin informed her that the officer was trying to arrest Dunn.  The
 paramedic said no he wasn't, because she had to take Dunn to the clinic
 for medical evaluations.  Griffin wasn't sure what Smith did at that
 point, but he thought Smith walked away and the paramedic continued to
 talk to him.  However, Griffin could not hear their conversation.
 
    Navy corpswoman Dabbs supplied more detail of what happened at this
 point.  She told Smith that she had a direct order from the doctor to
 bring Dunn back to the clinic for evaluation.  According to Dabbs, Smith
 became very angry and told her that she was obstructing justice.  Dabbs
 told him she had a direct order, that she had been called to the scene
 and it was her duty to take care of the patient first.  She told Smith
 that if he wanted to follow the ambulance back to the clinic, he could
 question Dunn after the doctor released her.  The officer according to
 her seemed upset, but he and his partner did follow the medical
 personnel back to the dispensary.  Griffin and Cannon then assisted the
 paramedic in taking Dunn out to the ambulance and onto the stretcher.
 Both Griffin and Cannon also went to the dispensary to see if Dunn was
 all right.
 
    Jacqueline Dabbs has been a medical corpsman in the Navy for six
 years.  Her military rank at the time of the incident was HN-2 or E-5.
 She testified that when a medical officer, who is a doctor, gives her a
 direct order to bring a patient in to the clinic, then that is what she
 has to do.  Because she is not a doctor, she cannot release a patient to
 police officers on her own, as that is outside the scope of her
 authority.  Normally, the police would follow the ambulance back to the
 clinic and then, after the patient had been treated and released, they
 could arrest the individual or do whatever they felt necessary.  Dabbs
 testified that this has happened on a number of occasions, both with
 civilians and with military patients.
 
    Since the stories of each side are vastly different it is worthwhile
 to outline what each side saw in this matter.  Smith testified that
 Cannon grabbed Dunn around the waist when she screamed and jumped up,
 moving toward the foreman who was trying to get the surrounding
 employees back to work.  He then claimed that Officer Jones, who did not
 testify, grabbed Dunn's legs, not Griffin.  It should be noted that
 Officer Jones was the primary officer and Smith was only backup.
 Smith's actions as backup seem over-zealous.  Even according to Smith,
 Griffin was engaged in attempting to restrain Dunn.  Then Smith
 testified that he took out his handcuffs with his right hand and grabbed
 Dunn's wrist with his left hand, intending to put her in handcuffs.  At
 that point, Griffin allegedly grabbed Smith's left wrist or hand (which
 was hanging on to Dunn), with one hand, and Smith's handcuffs with his
 other hand.  Cannon testified that he told Smith to let go to Dunn's arm
 and makes no mention of Griffin interfering at that point.  Cannon also
 unequivocally stated that Griffin did nothing physical to Smith.  Smith
 said he was going to place Dunn under arrest, and Griffin said "No,
 you're not." Armenta, Respondent's other witness, as we later see,
 testified only that Smith was seeking to restrain Dunn by handcuffing
 her.  Smith told him, "Yes, I am" and Griffin allegedly replied that
 Smith would have to fight him first.  As he made this threatening
 remark, allegedly Griffin pushed his upper body against Smith's elbow,
 trying to break his hold and to step completely between Smith and Dunn.
 
    Officer Smith also testified that Griffin asked if Smith knew who he
 was, and Smith acknowledged that he knew Griffin was a Union official.
 Smith also mentioned working at the VA and said he had worked with
 disturbed people and admits telling Griffin that if this was the LAPD,
 it would be much worse.  Smith admitted that he had told Griffin that
 Griffin would be arrested and booked if it was any other American law
 enforcement agency.  However, Smith also wanted to arrest paramedic
 Dabbs for obstructing justice.  It is also suggested that Smith wanted
 to arrest Cannon.
 
    Although Smith conceded that this was Officer Jones' area and he
 merely came to back up Jones, he could not explain why he decided to
 arrest Dunn without conferring with Jones.  Initially he states that he
 did it because he was a corporal and Jones is a regular officer, and
 then he surmised Jones was busy trying to help the others restrain Dunn,
 so he wasn't in any position to put handcuffs on Dunn.  Although the
 damage to the shop office was already done when Smith arrived, and that
 is why Dunn was ultimately cited, Smith made no move to arrest her until
 she was emotionally distraught and being restrained by several others.
 In fact Smith admits that he never spoke with Dunn at all and Jones
 asked only if she was injured, but nothing about what happened to the
 room.
 
    Officer Smith's story lacks the consistency to make it seem true.
 While his memory of the alleged scuffle is clear he has difficulty
 recalling any of the associated events which were going on around him.
 His defective vision leaves too many questions to have his account
 readily accepted.  For example, Smith stated that the paramedics left
 before Dunn erupted to go back to the dispensary, and never returned.  I
 credit Dabbs, but Smith does not recall speaking with her although she
 says he talked with her twice and in one conversation he claimed that
 she was obstructing justice.  When asked who escorted Dunn to the
 ambulance, he said it was Griffin, Cannon, Officer Jones and himself.
 When asked how they knew an ambulance was there when the paramedics had
 left to go back to the dispensary, he stated that the paramedics may
 have started to leave, but perhaps it was decided by someone else to
 grab them before they took off.  Clearly Dabbs, Cannon and Griffin were
 instrumental in taking Dunn to the dispensary.  Later he testified that
 he did recall the paramedic came back and told him that she was taking
 Dunn to the dispensary.  Dunn then went to the dispensary accompanied by
 Cannon and Griffin.  When asked again whether the paramedic came back
 and took control of the situation, Smith did not answer the question,
 but instead said there was no physical contact between the paramedic and
 Dunn.  On redirect, Smith was asked to name who left the office with
 Dunn, he said Cannon and Griffin, Dunn and a lot of shop employees.  In
 response to a question from Respondent's counsel, Smith agreed that the
 paramedics were also there.  When asked again who accompanied Dunn from
 the office to the ambulance, Smith took the hint, and included both the
 paramedics and the ambulance personnel.  No one else ever mentioned the
 ambulance personnel coming into the building to escort Dunn out.  But
 immediately after making the assertion that the paramedics escorted Dunn
 out, Smith was questioned as to how they could have escorted Dunn out
 when they left the office area.  Smith replied that he did not watch the
 paramedics to find out where they went, he merely knew they left the
 area.  When asked again who escorted Dunn to the ambulance, Smith said
 several people, but mostly Cannon and Griffin.  Obviously, Smith was
 trying very hard to say whatever he thought the questioner wanted to
 hear or whatever would help his case, without regard to the truth.
 
    When asked why he would simply let Dunn walk out with Griffin and
 Cannon if he was, as he asserted, in charge and Griffin was subject to
 arrest, Smith became agitated.  At first he said he knew where they were
 going and Dunn seemed to be in control of herself again.  Then he said
 the only thing he could have done with Griffin was to place him under
 arrest which would involve "a great deal of force," require another
 police officer and car, and possibly result in serious injury to
 someone.  Smith's reaction to this incident seems excessive to an
 onlooker.  He did not explain why such use of force or threat of serious
 injury would be necessary to place a single individual under arrest.  It
 becomes even more inexplicable when the two officers later issue Griffin
 a citation at the dispensary without incident, while three officers, /3/
 two cars and "a great deal of force" would have been required at
 Building 130.  Since there was no difficulty in issuing the citation
 Smith's reasoning seems fallacious.
 
    Smith also showed a tendency to manufacture answers which sounded
 plausible and were supportive of his version of the incident.  An
 illustration of this occurred when he was asked why the ambulance was
 there, when he had already testified the paramedics had gone back to the
 dispensary, he quickly corrected that with a story about someone
 stopping them before they left.  Obviously a fabrication having nothing
 to do with what happened that day.  Another such instance occurred when
 he was asked why he thought Griffin was at the scene on May 21, he said
 he assumed some shop employees called him.  Smith actually had no idea
 how Griffin became aware of the problem with Dunn.  Rather than say so,
 he seemingly sought to forge a plausible sounding answer without regard
 to the truth.  In fact, when asked what action he would have taken if
 Griffin had told him that the Director of Labor Relations asked Griffin
 to go down to Shop 17 and handle the matter, Smith replied, in a
 particularly illuminating manner that he wouldn't have believed Griffin.
  His knowing Griffin, and that he served in a responsible position at
 the Shipyard speaks volumes about Smith and his ability to handle
 delicate situations such as this one.  I find his answer to that
 question incredible.
 
    George Armenta, a Foreman in Shop 17, was Respondent's other witness.
  Mr. Armenta testified that he was present in the room when Dunn threw
 her tantrum and had to be restrained.  He stood about two desks away
 from Dunn and the othersinvolved and watched the entire incident.  His
 explanation for his failure to take any responsibility, since he was a
 foreman, or be of any assistance was his belief that a foreman should be
 seen but not heard or in other words, that he ought to observe, but not
 participate.  Armenta's version of what happened after Dunn's tantrum is
 that Cannon grabbed her waist and Officer Jones grabbed one foot or,
 possibly both, and Griffin was holding on to her left arm, and that
 Smith also grabbed Dunn's arm is plausible, if this is what he saw.
 Armenta says Smith tried to handcuff Dunn, and Griffin grabbed Smith's
 arm in one hand and Dunn's in the other and tried to pull them apart to
 break Smith's hold on Dunn's arm.  According to Armenta, Smith said he
 had to restrain her, and Griffin told him no.  Interestingly Armento
 makes no mention of an arrest merely restraint.  When Smith insisted
 Griffin asked if Smith knew who he was.  Armenta did not hear whether
 Smith replied, but Griffin then said he was President of the Metal
 Trades Council which ie is not, he is a vice-president.  Armenta heard
 Griffin say that Smith would have to fight him first before he would let
 Smith handcuff Dunn.  Armenta also saw Griffin pulling on Smith's hand
 while he made these statements.  After the above statement, according to
 Armenta, Smith released Dunn's wrist and put away his handcuffs.
 
    Although Armenta claims he heard Griffin threaten to fight the
 officer, he did not hear Smith say anything about previously working at
 VA and knowing how to restrain disturbed people.  Something that
 Griffin, Cannon and Smith all recalled being said.  Other than recalling
 Griffin's words exactly the same way Smith does, Armenta and Smith
 accounts are even different.  Armenta's selective hearing therefore,
 cannot be credited.  As discussed above, Armenta said Griffin grabbed
 Dunn's arm in one hand and Officer Smith's in the other and tried to
 pull them apart, while Officer Smith testified that Griffin grabbed
 Smith's right hand and handcuffs in one hand, and Smith's left wrist in
 his other hand and pushed his upper body against Smith's elbow.
 Moreover, Armenta indicated that the paramedic or nurse (as he recalled
 Dabbs) returned about the time that Smith backed off, and Griffin then
 told her that the officers were trying to handcuff Dunn.  Armenta also
 engaged in selective seeing.  After Dunn left with the corpswoman, he
 asserts that the two police officers and Griffin remained in the room
 with him.  Of course, Smith, Dabbs, Cannon and Griffin stated that they
 left with Dunn.  Armenta acknowledged that there was a struggle and a
 lot of excitement, and that it was possible for someone to be hanging on
 to a leg at one point and an arm at another, but he would not say there
 was room for differences in the way different people saw the event.
 
    Michael Curry has been the Chief of the Criminal Investigations
 Division at the Shipyard since about January 1985.  On May 21, 1985, he
 heard about the disturbance caused by Dunn over the radio in his office,
 and decided to go to the building.  As he arrived, he saw the ambulance
 leaving and Smith outside the building.  Smith told him how Dunn had
 gone wild and torn up the office and had been taken to the dispensary.
 Then Smith said he had a problem.  He said Griffin had interfered with
 him "while he was trying to take police action with Dunn." Curry asked
 what the problem was.  Smith said he wanted to cite Griffin but he
 wasn't sure.  Curry asked why, and Smith said he wasn't sure whether he
 was going to get the backing or whatever.  Curry told Smith he would
 have to make his own decision.  When questioned about this backing,
 Curry explained that his understanding was that in the past, the
 practice was that no one would support the police officers in the
 Shipyard and when they "did anything that would come close to trying to
 (en)force the law when it pertained to any union members or anything
 like that they were chastised for it." This statement leaves little
 doubt that Griffin's Union position was being taken into account in
 issuing the citation.  Possibly Griffin would not have been cited had he
 not been a Union official for Cannon also told Smith to take it easy in
 effect and Dabbs who insisted in taking Dunn to the dispensary were not
 cited.  Furthermore, Cannon was not cited even though he had words with
 Smith which were equally as strong as those used by Griffin.  Curry also
 testified that although he had never met Griffin, that was one of the
 first names he picked up when he came to the Shipyard and he was well
 aware of his union status.
 
    Frank Rodriguez the Union President corroborated Curry's account.  He
 testified that while discussing another matter Curry mentioned to
 Rodriguez at the time of "the Griffin thing" stating that the officer
 asked if Curry would back him if he gave a ticket to a union guy, and
 Curry told the officer they would back him if he deserved it.  Smith
 testified only that he gave Curry the facts of what happened and said
 nothing further.
 
    After receiving permission from Curry to ticket a union man, Smith
 went to the medical clinic where Dunn was being treated.  Both Cannon
 and Griffin were at the dispensary waiting for Dunn.  Smith asked for
 Griffin's ID badge and wrote him a citation for interfering with a
 police officer while trying to make an arrest.  The officer gave Griffin
 the citation telling him he did not have to sign it, but requested that
 Griffin sign the citation.  Griffin refused, and Smith said Griffin had
 not cooperated up to this point, so he didn't see why Griffin should
 now.  Cannon testified that he was "kind of shocked" by Smith's remark,
 because he saw Griffin respond to everything the officer had asked.
 
    Obviously, it is necessary to make a credibility determination as to
 which version of Griffin's behavior during Dunn's tantrum is to be
 believed.  I credit the version given by Cannon and Griffin, and
 corroborated in part by Jacqueline Dabbs, as more accurate and
 plausible.  In this regard, it is noted that Dabbs was at the time a
 member of the armed forces stationed at the Long Beach Naval Station
 Clinic.  She is currently stationed at the Marine Corps Air Station in
 El Toro, California.  Thus, she is not a Shipyard employee nor is she
 affiliated with the Union in any way.  Given her status, there was no
 reason for her testimony to be biased in any direction.  Insofar as she
 witnessed the relevant events, her testimony is one of the most
 objective of any of the witnesses.  Cannon, in my view, also is
 extremely credible.  Although at one time he was a union steward and
 represented Dunn on various occasions, he is now a supervisor and an
 agent of the Shipyard.  Moreover, Cannon was sufficiently worried about
 being caught in the middle between the Union and the Shipyard that he
 went to Security Code 1700, and had talked with Curry about what he saw
 and heard on May 21, 1985.  Cannon is presently a supervisor, his
 sympathies are far more likely to lie with Respondent, and he made it
 clear to Curry in their conversation that he would simply tell what
 happened without embellishment.  Therefore, his testimony as to the
 events of May 21 is also credited.  Armenta's version just contains too
 many inconsistencies to be relied on.  Smith's bias is exhibited in his
 desire to ticket the Union man.  Moreover, he waivered in significant
 areas of testimony, was surly and somewhat uncooperative when
 questioned.  His inability to respond to questions in a direct and
 forthright manner also detracts from his testimony.
 
    A significant aid in determination of credibility is the absence of
 Officer Jones whose area the incident occurred in.  One is left with the
 inescapable inference that Jones' testimony would not have corroborated
 his fellow officer's account.  The pregnant silence of Officer Jones,
 coupled with Officer Smith's chronic evasiveness and Armenta's
 inconsistency when compared to any other witness' testimony, together
 work to create, in my opinion, a perplexing version of what occurred
 between Griffin and Smith that is difficult for me to credit.
 
                                Conclusions
 
  (1) Whether the bargaining unit status of employee Shelly Dunn is
 pivotal in this matter.
 
    Respondent argues, without persuasion to me, that because Ms. Dunn
 was an AFGE bargaining unit employee on detail that Griffin was not
 authorized to represent her.  Such an argument is wide of the mark in
 this case.  /4/ The status of Dunn has no bearing on the issue here but,
 the pertinent question is whether the activity engaged in by Griffin was
 a right protected by the Statute.  What is involved is whether or not a
 union representative acting in that capacity is engaged in protected
 activity when he responds to a call for assistance from the activity as
 a union representative.  The uncontradicted facts are that Griffin was
 on the scene in this matter only because of his position as a high union
 official and because he was asked to be there and give assistance by
 Respondent's labor relations office.
 
    For an agent of Respondent to seek union assistance in a matter which
 he deemed it necessary and then when the matter gets out of hand to
 assert that the Union could not have properly aided in the matter
 because the employee involved was in the wrong bargaining unit is sheer
 sophistry.  The question in this case is not one of authority to
 represent, but is limited to how the representative got involved in
 protected activity.  Clearly the involvement came as a result of Griffin
 being contacted in the Union office by Respondent's labor relations
 office and being requested to act in an official union capacity.
 Certainly those present, with the exception of foreman Armenta were
 involved to some extent in calming Dunn down.  Moreover, at one time or
 another at least three full grown men were holding on to some part of
 Dunn to subdue her.  When Smith belatedly became involved in what
 appears at that time to have become a medical problem there is no wonder
 he became frustrated and wanted to arrest everyone involved.  Frankly,
 from the record, while I would not want to substitute my judgment for
 that of an arresting officer, Smith's conduct should cause concern and
 closer scrutiny of him by those who supervise him.  After all, this was
 not the LAPD or the VA Hospital, but clearly a case where an employee
 was having a problem which required some consideration in its handling.
 Others were apparently supplying that care when Smith intervened.  I,
 for one, question his judgment in this matter.  In any event, the
 evidence establishes that Griffin was not ticketed or cited for
 assisting Dunn or for preventing her arrest, but because he was a Union
 official, which makes his representational status in relation to Dunn
 immaterial.  However, I further find that, Griffin was assisting Dunn in
 his capacity as a union official.  In such circumstances, it is found
 that Griffin was engaged in representational duties when he went to the
 scene at managements' request to aid in the Dunn matter and his action
 was protected by the Statute.
 
  (2) Was Mr. Griffin's conduct while assisting Dunn so improper as to
 take it outside the ambit of protected activity.
 
    The Authority has stated that not every alleged impropriety committed
 by an employee while otherwise engaged in protected activity is beyond
 the ambit of the protected activity.  Department of the Navy, Puget
 Sound Naval Shipyard, Bremerton, Washington, 2 FLRA 54 (1979);
 Department of Treasury, Internal Revenue Service, Memphis Service
 Center, 16 FLRA 687 (1984).  The test is whether the employee engaged in
 flagrant misconduct.  Department of the Army, Headquarters Military
 Traffic Management Command, 2 FLRA 540 (1980);  Defense Logistics
 Agency, Defense Depot, Tracy, California, 16 FLRA 703 (1984).  The
 circumstances that prompted the contested conduct are also important.
 U.S. Forces Korea/Eighth U.S. Army, 17 FLRA 718 (1985).
 
    Were it not for the apparent gravity of Dunn's emotional difficulty
 the scene would be humorous.  Here we have 2 foremen, 3 DOD security
 officers, 1 paramedic, 1 high ranking union official, 1 EEO officer all
 called to the scene by someone, and who knows how many rank and file
 employees, attempting to calm down or restrain 1 small 105 lb. female.
 There is no wonder that confusion resulted and tempers flared.  What is
 plain is that Griffin like the others was assisting in subduing Dunn.
 In her state everyone was trying to calm her down.  While Smith's
 methods, according to him were tried and true it is of interest that he
 did not make a move until Dunn was being held by two others.
 
    Assuming, then, that Griffin was assisting Cannon and others in
 subduing Dunn and made two comments to Smith, the question is whether
 his remarks fall outside the protection of the Statute.  I limit myself
 to the comments only because I credit Cannon that he was standing
 between Griffin and Smith during the entire time and there was no
 physical contact between the two.  In so doing I reject Respondent's
 argument that physical interference occurred.  The Griffin comments at
 issue are first, a statement that he didn't think Smith should use so
 much force on the lady, and second, in response to Smith's statement
 about knowing how to handle disturbed people from his experience with
 the VA, a remark that Smith's comment wasn't called for and had nothing
 to do with the situation.  /5/ The General Counsel cited two cases where
 statements were made concerning supervisors which stemmed from union
 dissatisfaction concerning actions of those supervisors which were
 protected by the Statute.  Veterans Administration Washington, D.C. and
 Veteran's Administration Medical Center, Cincinnati, Ohio, Case No.
 5-CA-50346, OALJ 86-53, (May 2, 1986);  Internal Revenue Service, North
 Atlantic Service Center, 7 FLRA 596 (1982).  Griffin's remarks to Smith,
 if they were offensive at all were far less contumelious than the
 conduct of the union representatives in either Memphis Service Center or
 Veterans Administration, supra.  Griffin merely expressed his opinion
 regarding the propriety of the officer's behavior in a harmless fashion
 which clearly was intended to convince the officer to modify his
 somewhat unusual conduct.  Also Griffin's statements were no more
 intemperate nor did they tend to interfere more than those of either
 Cannon or Dabbs.  In fact Cannon made quite clear to Smith that the
 matter should be handled differently.  If Smith was eager to cite
 someone for comments I do not see, from this record where those two
 comments interfered with any "police action against Dunn." Based on
 Dabbs' testimony, officers normally wait until a patient is released to
 take any action.  Smith apparently was unaware of this procedure.  Under
 all the circumstances of this case, Griffin's conduct cannot be found to
 constitute flagrant misconduct, as he in my opinion acted in a
 reasonable, nondisruptive way.  Compare, Defense Logistics Agency,
 supra, and Puget Sound Naval Shipyard, supra.
 
    Respondent's argument that Griffin would have received a citation
 regardless of his activities as a Union representative does not
 withstand scrutiny.  In order to benefit from such a claim Respondent
 would have to establish that Griffin's conduct was egregious or that he
 did interfere with Smith in making an arrest.  This record does not
 support such an inference.  To proclaim that Griffin's union position
 had nothing to do with this matter misses the entire point.  Several
 individuals were involved in subduing Dunn or with taking her to the
 dispensary.  None of the other individuals, although each had words with
 Smith was cited.  Furthermore, there was no physical contact and the
 language used by others was even stronger than Griffin's.  If they were
 not cited then why should Griffin have been.
 
    Cannon admitted that he asked Smith to let go of Dunn's arm, and
 candidly stated that he heared the officer had confused Griffin with
 him, because they have a similar appearance.  He was sufficiently
 disturbed over the fact that Griffin was cited when he was not, that he
 went to Security on his own initiative to discuss the incident with
 them.  He expressed his concern over being caught in the middle, because
 he is a management official and he did not want to have to take sides.
 Unfortunately, his attempt at intervention was to no avail.
 
    While Dabbs was certainly performing an official function, Smith also
 threatened her with police action for "obstructing justice." Seemingly
 she prevailed only because she told Smith that a doctor had ordered Dunn
 brought back to the clinic.  That Dunn was in need of medical assistance
 at the time was clear for anyone, except Smith, to see.
 
    All of this suggests that the true concern of the DOD officers was
 Griffin's well known activity on behalf of the Union rather than any
 interference with an arrest.  Griffin was a convenient focus for the
 frustration of the officers who were unaccustomed to having anyone
 question their behavior.  If this were not so, Smith would not have
 approached Curry with a demand to know whether Curry would back him if
 he issued a citation to a union man.  Nor would Curry have conveyed the
 Smith message to Rodriguez.  Curry, who at the time of this incident was
 new on the job, testified that it was his understanding that the
 officers felt they never received any support when the Union questioned
 their actions, and the officers always ended up being chastised for
 their behavior.  The clear inference here is that this statement
 provides the anti-union animus that Respondent argues is missing.  Thus,
 Curry was anxious to show his support, and this incident gave him the
 opportunity to do so.  But for Griffin's involvement with the Union,
 none of this would have been a consideration, and the citation to
 Griffin would not have issued.
 
    Having found that Respondent violated section 7116(a)(1) and (2) of
 the Statute by issuing a citation to Mr. Griffin it is recommended that
 the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to section 7118(a)(7)(A) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. Section 7118(a)(7)(A), and
 section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R. section
 2423.29(b)(1), the Authority hereby orders that the Long Beach Naval
 Shipyard, Long Beach California, and Long Beach Naval Station Long
 Beach, California shall:
 
    1.  Cease and desist from:
 
          (a) Discriminating, retaliating, or taking reprisal against
       Frank Griffin, Sr. or any other employee by issuing a citation to
       that employee while or because he was engaged in protected
       activity on behalf of the Federal Employees Metal Trades Council,
       AFL-CIO.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of their rights
       guaranteed by the Statute.
 
    2.  Take the following affirmative actions in order to effectuate the
 purposes and policies of the Statute.
 
          (a) Rescind the citation issued to Frank Griffin, Sr., on May
       21, 1985, and expunge all references to the citation from all
       files or documents in our possession or control in which such
       references might appear.
 
          (b) Post at its Long Beach Naval Shipyard, Long Beach,
       California;  and Long Beach Naval Station, Long Beach California
       facilities copies of the attached motive marked "Appendix", on
       forms to be furnished by the Federal Labor Relations Authority.
       Upon receipt of such forms they shall be signed by the Commanding
       Officer or Commanding Officers and they shall be posted for 60
       consecutive days thereafter in conspicuous places, including all
       places where notices to employees are customarily posted.  The
       Director shall take reasonable steps to insure that such notices
       are not altered, defaced, or covered by any other material.
 
          (c) Notify the Federal Labor Relations Authority, in writing,
       within 30 days from the date of this Order as to what steps have
       been taken to comply herewith.
 
                                       /s/ ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  July 22, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) As argued by the General Counsel, the Respondents have raised
 matters in their brief which were not presented to the Judge.  However,
 these matters concern aspects of the Authority's subject matter
 jurisdiction which must be considered by the Authority at every stage of
 the Authority's proceedings.  Accordingly, we reject the General
 Counsel's motion to strike.  Noting the Respondents' unexplained failure
 to raise these matters before the Judge, we have considered the portions
 of the Respondents' brief complained of by the General Counsel only as
 deemed necessary.
 
    (1) The Complaint was amended at the hearing to add Long Beach Naval
 Station, Long Beach, California as a party Respondent.
 
    (2) Officer Smith and foreman Armenta seemed to think Dunn was
 getting the better of whoever was holding on to her.
 
    (3) A third officer, Sergeant Nolan was also present at the scene of
 the disturbance.  Only Griffin recalls a third officer and there is no
 indication from the record what role, if any, he played in the matter.
 
    (4) Cases cited by Respondent such as Federal Law Enforcement
 Training Center and AFGE, Local 2002, 4 FLRA No. 14 (1980);  Panama
 Canal Commission and AFGE Local 1805, 5 FLRA No. 20 (1981);  Labor
 Management Services Administration, 9 FLRA No. 91 (1982);  U.S. Army
 Aviation Systems Command, 20 FLRA No. 36 (1985);  Naval Construction
 Battalion Center, 14 FLRA No. 60 (1980);  are all readily
 distinguishable and have no application here.
 
    (5) I do not credit either Armenta or Smith that Griffin indicated
 that Smith would have to "fight."
 
 
 
 
 
                                 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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT discriminate, retaliate, or take reprisal against Frank
 Griffin, Sr., or any other employee, by issuing a citation to that
 employee while or because he was the employee engaged in activity on
 behalf of the Federal Metal Trades Council, AFL-CIO.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the citat