16:0093(21)CA - Navy, Portsmouth Naval Shipyard, Portsmouth, NH and Portsmouth FEMT Council -- 1984 FLRAdec CA

 16 FLRA No. 21
 
 DEPARTMENT OF THE NAVY
 PORTSMOUTH NAVAL SHIPYARD
 PORTSMOUTH, NEW HAMPSHIRE
 Respondent
 
 and
 
 PORTSMOUTH FEDERAL EMPLOYEES METAL
 TRADES COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 1-CA-427
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits, and the contentions of the
 parties, the Authority finds:
 
    The complaint alleges that the Department of the Navy, Portsmouth
 Naval Shipyard, Portsmouth, New Hampshire (the Respondent), violated
 section 7116(a)(1) of the Federal Service Labor-Management Relations
 Statute (the Statute) when it issued a two-day suspension notice and
 then suspended Lionel A. Gravel, a supervisor within the meaning of the
 Statute, because of his participation in the processing of an employee's
 grievance by the Portsmouth Federal Employees Metal Trades Council (the
 Union).  It is alleged that the Respondent's conduct had a chilling
 effect on the exercise of the protected rights of employees.  /1/
 
    The events culminating in Gravel's suspension began when unit
 employee Morin and another employee were observed away from their duty
 stations shortly before the end of their shift.  This was brought to the
 attention of superintendent Dostie, who instructed their supervisor,
 Gravel, to discuss the matter with the two men and to discipline them.
 About a month later, Morin was notified of a proposed five-day
 suspension without pay because of his unexcused absence from his post of
 duty.  The notice was signed by his supervisor, Gravel.  Shortly
 thereafter, however, Gravel signed a memorandum, prepared by the Union,
 stating that he had signed the suspension notice only because he was
 directed to do so;  that he did not agree the suspension was necessary
 or proper;  that Morin had been punished enough by losing potential
 overtime because of the same infraction;  and that the loss of potential
 overtime was itself sufficient to prevent another infraction and to
 serve as an example to other employees.
 
    Gravel's memorandum was submitted to Dostie by the Union's Chief
 Steward in connection with an oral reply to the proposed disciplinary
 action, and Morin's proposed five-day suspension was later reduced to
 one day.  Shortly thereafter, Gravel was notified that he would be
 suspended for five days without pay, in part because his signing the
 above-described memorandum prepared by the Union was inconsistent with
 his allegiance to management.  Gravel's suspension was later reduced to
 two days.
 
    Section 7102 of the Statute states that "(e)ach employee shall have
 the right to form, join, or assist any labor organization, or to refrain
 from any such activity . . . and shall be protected in the exercise of
 such right", and section 7116(a)(1) of the Statute makes it an unfair
 labor practice for an agency to interfere with, restrain, or coerce
 employees in the exercise of such rights.  /2/ By the express language
 of the Statute, the protection is limited to "employees" as defined in
 section 7103(a)(2) of the Statute, which definition specifically
 excludes supervisors.  /3/ Therefore, supervisors are not protected
 under the Statute when engaged in certain activities the performance of
 which would be statutorily protected if they were employees.  In the
 Authority's view, however, under some circumstances, discipline taken
 against a supervisor may be found to have such a chilling effect on the
 exercise of protected rights by employees that it interferes with,
 restrains, or coerces such employees in the exercise of their rights
 under the Statute in violation of section 7116(a)(1).  The sole issue in
 this case is whether the Respondent's suspension of Gravel constituted
 an unfair labor practice under the circumstances.  The Authority
 concludes that it did not.
 
    In this regard, Gravel simply stated an opinion with respect to which
 his own supervisors took exception.  He was not disciplined, for
 example, for giving testimony as to facts which were adverse to the
 Respondent.  Therefore, a finding that the discipline imposed on Gravel
 would chill the exercise by employees of their right to grieve and to
 present relevant evidence in support of their grievances is not
 warranted here.  The Authority notes particularly that no evidence was
 presented that the discipline of Gravel had any effect whatsoever on the
 exercise of employee rights or that such discipline would tend to have
 any such effect.  By disciplining Gravel under these circumstances, the
 Respondent did not violate the Statute.  Accordingly, the Authority
 shall dismiss the instant complaint.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 1-CA-427 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., September 28, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent alleges that the supervisor was suspended for
 other and unrelated conduct on his part.  In view of our decision
 herein, consideration of that question is unnecessary.
 
 
    /2/ Section 7116(a)(1) of the Statute provides:
 
                    Sec. 7116.  Unfair labor practices
 
          (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(.)
 
 
    /3/ Section 7103(a)(2) of the Statute provides:
 
                   Sec. 7103.  Definitions;  application
 
          (a) For the purpose of this chapter--
 
                                  * * * *
 
          (2) 'employee' means an individual--
 
          (A) employed in an agency;  or
 
          (B) who employment in an agency has ceased because of any
       unfair labor practice under section 7116 of this title and who has
       not obtained any other regular and substantially equivalent
       employment, as determined under regulations prescribed by the
       Federal Labor Relations Authority;
 
          but does not include--
 
                                  * * * *
 
          (iii) a supervisor or a management official(.)