[ v15 p867 ]
15:0867(165)CA
The decision of the Authority follows:
15 FLRA No. 165
DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
Charging Party
Case No. 43-CA-1294
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it cease and desist therefrom and take certain
affirmative action. Exceptions to the Judge's Decision were filed by
the Respondent.
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.
Ordinarily, the removal of an employee from assigned duties solely
because of the employees' protected union activity constitutes an unfair
labor practice. See, e.g., Internal Revenue Service, Boston District,
Boston, Massachusetts and Internal Revenue Service Center, Andover,
Massachusetts, 5 FLRA 700 (1981). However, the Authority recognizes
that conflicts may arise between the rights of employees and the rights
and duties of management. Section 7101 of the Statute, for example,
provides both for the right of employees to participate in the
collective bargaining process through labor organizations of their own
choosing, and for the safeguarding of the public interest in maintaining
an effective and efficient Government. Further, irreconcilable
conflicts may arise between management's right to insist on the
performance of a job that cannot be deferred and an employee's right to
engage in protected union activity, such as the representational
activities of the employee herein involved. Where such conflicts arise,
management must be free to assign the employee, without loss of pay, to
other duties that will not impair any essential function of the agency,
but will permit the employee to perform those other duties and to also
engage in protected union activity. It is the burden of management when
exercising that right, however, to show that such a transfer of
assignment is warranted. Thus, applying this principle to the facts in
this case, we find, in agreement with the Judge, that the record does
not demonstrate that the protected representational activities of the
employee here involved interfered with the performance of his duties so
as to warrant a transfer of assignment, and that the Respondent's action
therefore violated the Statute.
Accordingly, the Authority finds that the Respondent violated section
7116(a)(1) and (2) of the Statute by removing Richard L. Lake, Chief
Steward of Shop 07 for the Charging Party, from fire alarm truck duties
because of his union activities, and that, in the circumstances of this
case, an order that Lake be made whole for any loss of overtime earnings
suffered as a result of his discriminatory removal is appropriate. The
details of such remedy are left to the compliance procedures of this
case. See American Federation of Government Employees, AFL-CIO, Local
2000, 4 FLRA 601 (1980).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of the Navy, Norfolk Naval
Shipyard, Portsmouth, Virginia, shall:
1. Cease and desist from:
(a) Failing and refusing to restore Richard L. Lake to duties as fire
alarm electrician, which assignment he had held prior to April 21, 1980,
when he was relieved of such duties because he had exercised his rights
under the Statute to assist a labor organization by serving as a union
officer and had utilized official time in such capacity in accordance
with the parties' negotiated agreement.
(b) Discriminating against Richard L. Lake with regard to overtime,
or any other condition of employment, in order to discourage membership
in, or activities on behalf of, the Tidewater Virginia Federal Employees
Metal Trades Council, or any other labor organization.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Offer to restore Richard L. Lake to duty as fire alarm
electrician, including his restoration to the fire alarm truck as lead
mechanic, and make him whole for any loss of overtime earnings which he
may have suffered as the result of his discriminatory removal from his
assigned duty of fire alarm electrician on April 21, 1980, for the
period beginning April 21, 1980, and continuing to the effective date of
Respondent's offer of restoration to the assignment which he held prior
to April 21, 1980.
(b) Post at its facilities copies of the attached Notice on forms to
be furnished by the Authority. Upon receipt of such forms they shall be
signed by the Commanding Officer, Norfolk Naval Shipyard, Portsmouth,
Virginia, 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, Federal Labor Relations
Authority, Region IV, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to restore Richard L. Lake to duties as
fire alarm electrician, which assignment he had held prior to April 21,
1980, when he was relieved of such duties because he had exercised his
rights under the Statute to assist a labor organization by serving as a
union officer and had utilized official time in such capacity in
accordance with the parties' negotiated agreement.
WE WILL NOT discriminate against Richard L. Lake with regard to
overtime, or any other condition of employment, in order to discourage
membership in, or activities on behalf of, the Tidewater Virginia
Federal Employees Metal Trades Council, or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Statute.
WE WILL offer to restore Richard L. Lake to duty as fire alarm
electrician, including his restoration to the fire alarm truck as lead
mechanic.
WE WILL make Mr. Richard L. Lake whole for any loss of overtime
earnings which he may have suffered as the result of his discriminatory
removal from his assigned duty as fire alarm electrician on April 21,
1980, for the period beginning April 21, 1980, and continuing to the
effective date of our offer to restore him to the assignment which he
had held prior to April 21, 1980.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 IV, Federal Labor Relations Authority, whose address
is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, Georgia
30309 and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 43-CA-1294
Brenda S. Green, Esquire
For the General Counsel
Walter B. Bagby, Esquire
For the Respondent
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., was initiated by a charge filed on June 30, 1980
(G.C. Exh. 1(a)) alleging violations of Sec. 16(a)(1), (2) and (8) of
the Statute and the matter was assigned Case No. 3-CA-1294. By Order
dated July 3, 1980, pursuant to Sec. 2429.2 of the Rules and
Regulations, the case was transferred from Region 3 to Region 4 (G.C.
Exh. 1cc)) and thereafter was assigned Case No. 43-CA-1294. On August
22, 1980, a 1st Amended Charge was filed (G.C. Exh. 1(d)) which alleged
violations of Secs. 16(a)(1) and (2). A Complaint and Notice of Hearing
issued on October 21, 1980 (G.C. Exh. 1(f)), pursuant to which a hearing
was duly held on January 7, 1981, in Norfolk Virginia, before the
undersigned.
The Complaint, in substance, alleges that on, or about, April 21,
1980, Respondent reassigned Mr. Richard Lake from duties of inspection,
repair and maintenance of fire alarm systems, and has failed and refused
to reinstate him to his former duties, because Mr. Lake engaged in
activities in and on behalf of the Tidewater Virginia Federal Employees
Metal Trades Council (hereinafter, also, referred to as "Union") in
violation of Secs. 16(a)(1) and (2) of the Statute.
All parties were represented, were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence
bearing on the issues involved, and to present oral argument. At the
close of the hearing, February 9, 1981, was fixed as the date for
mailing post-hearing briefs, which time was subsequently extended, for
good cause shown, including delay in receipt of the transcript, to March
2, 1981. Counsel for the General Counsel and for Respondent each timely
mailed a very helpful brief, received on or before March 3, 1981, which
have been carefully considered. Upon the basis of the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings and conclusions:
Findings
1. Mr. Richard L. Lake was employed by Respondent on September 29,
1975, as an apprentice electrician. He was, and is, a member of the
International Brotherhood of Electrical Workers, Local 734. Mr. Lake
became a journeyman electrician (mechanic) on, or about, October 7, 1979
(Tr. 94, 95), and at about the same time became Chief Steward for Shop
07, a maintenance shop. Mr. Joseph Griffith is maintenance
Superintendent of Shop 07; he has three general foremen and fifteen
foremen and the Shop performs work in seventeen different trades.
2. The Union is the exclusive representative and there is in effect
a negotiated agreement (G.C. Exh. 2). Mr. Lake is Treasurer of IBEW
Local 734; a delegate to the Union (Council); and prior to becoming
Chief Steward for Shop 07 had been a steward in Shop 07.
3. Mr. Lake is a high voltage electrician (GW-10) and his immediate
supervisor is Mr. Charles R. West.
4. Mr. West is foreman over all high voltage electrical work and
distribution of power in the shipyard; maintenance and power
distribution, elevators and fire alarm systems. He is under the
immediate supervision of a general foreman, which had been Mr. Richard
W. Horner until Mr. Horner's retirement on May 12, 1980, and both were
under the supervision of the Superintendent, Mr. Griffin. Mr. West, a
high voltage mechanic, became foreman in August, 1979.
5. One of the duties of high voltage electricians is maintenance of
the fire alarm system. In August, 1979, Mr. West assigned Mr. Lake to
fire alarm system duties. There are five trucks assigned to Mr. West
and one truck is primarily used for fire alarm system work and is
generally referred to as the "Fire Alarm Truck." Certain equipment
pertaining to the fire alarm system work is kept on this truck,
although, at night, the truck is used for other purposes. Initially, as
an apprentice, Mr. Lake worked under either Mr. Whitford or Mr. Pinner
(G.C. Exh. 4); however, after he: a) became a mechanic and b)
completed the fire alarm maintenance course in October, 1979, Mr. Lake
became the lead mechanic on the fire alarm truck.
6. The practice is to have two men assigned to the fire alarm truck.
When emergencies arise any number of high voltage electricians may be
assigned to fire alarm system work; nor do the men normally assigned to
fire alarm system work spend all their time on this work but they are
routinely assigned to other duties as high voltage electricians as
required (See, G.C. Exh. 3).
7. Mr. West very credibly testified that ninety percent of this time
two men, working together, are required for fire alarm system work, in
part because the nature of the work, but principally because of safety
considerations and, accordingly, when Mr. Lake left on union business
the other man would usually return to the shop and Mr. West would have
to find someone else to put on the truck (Tr. 173), although on some
occasions the "other" man checked boxes alone(Tr. 94). Mr. West also,
very credibly, testified that when emergencies arose he could not get in
touch with Mr. Lake when he was on union business. Mr. Lake's assertion
that he carried a portable Fire Department radio with him when he left
the truck, which I fully accept as true, does not, as counsel for
General Counsel asserts, refute in the slightest Mr. West's testimony
that he could not contact Mr. Lake on his radio, or through his base
station, for the reason that, as Mr. Ault's testimony shows (Tr. 60),
Mr. West was not communicating on the Fire Department radio. Nor,
accepting Mr. Ault's testimony, that when Mr. Lake came to the Union's
trailer with the truck he parked immediately outside the door of the
trailer, which he left open, with the truck radio on, would the fact
that he made an effort to be able to hear the truck radio demonstrate
that Mr. Lake could have heard the radio had Mr. West sought to contact
him since Mr. Ault further testified that Mr. Lake had come to the
Council trailer only once or twice prior to April 18, 1980, and only at
lunch time and there is nothing to indicate that Mr. West had ever
sought to contact Mr. Lake when he was on his lunch break.
8. Although the record shows that Mr. Lake spent time on union
activities and that Mr. West on such occasions had been unable to
contact Mr. Lake by radio, the record does not show how often this
occurred since Mr. West prior to May, 1980, did not record Mr. Lake's
time on union activity when it was less than an hour and Mr. Lake
maintained no record of his time on union activities. The time spent on
union activities by Mr. Lake on and after May 28, 1980 (Res. Exh. 2)
provides some indication of the general frequency of his activities as
Chief Steward although I am aware that Mr. Lake testified that his union
activities had been somewhat less in the period prior thereto. In any
event, Respondent Exhibit 2 shows that on and after May 28, 1980, the
greatest amount of time spent by Mr. Lake on union activities during any
week was seven hours and that the average per week was roughly 3 hours.
The record shows, and I so find, that Mr. West had discussed the problem
on several occasions with General Foreman Horner and with Superintendent
Griffith; however, I conclude, as Mr. Lake testified, that, prior to
April, 1980, he had never been told by Mr. West that he had ever missed
a call (Tr. 232). Weighing all testimony, it seems inherently more
probable that, while Mr. West did not discuss the matter with Mr. Lake,
he did "tighten-up" his release procedures. Accordingly, on or about,
April 17, when Mr. Lake, at about 7:20 a.m., asked permission to go to
the Union trailer, Mr. West "asked him what his business was, what he
had to go there for" (Tr. 185) to which Mr. Lake replied that "it was
none of his business"; /2/ and Mr. West denied Mr. Lake permission to
go to the Union trailer. Later, Mr. Lake called Mr. Ault who obtained
clearance for Mr. Lake and he went to the Union trailer sometime before
lunch. After Mr. Lake had gone to the Union trailer, Mr. West and Mr.
Lake met with Mr. Horner. I credit Mr. West's testimony that the
discussion with Mr. Horner concerned Mr. Lake's it's "none of your
business" retort. There is no dispute that Mr. West stated that
employees had told him they didn't want to work with Mr. Lake and that
he specifically mentioned Michael (Mickey) J. White as having made such
statement. /3/ Later on the afternoon of April 17, I conclude, as Mr.
West testified, Mr. West assigned Mr. Lake to assist with a cable
problem. Shortly thereafter, Mr. Lake requested permission to go to the
Union trailer and Mr. West denied permission for him to go immediately
because this was an emergency (Tr. 140) but told Mr. Lake that if he
finished in time "we would see about letting him go" (Tr. 140). Mr.
Lake did finish the job by about 3:30 p.m., but Mr. West never got back
to Mr. Lake to release him.
9. The following morning, April 18, Mr. West called Mr. Lake on the
radio to come to Berth 42. Mr. Michael J. White testified that he got
out of the truck and Mr. West got in and that Messrs. Lake and West
drove off for a while and returned in 15 to 30 minutes (Tr. 186). Mr.
White stated that Mr. Lake told him Mr. West had told him he could go to
the Union office. During the morning, Mr. Lake asked Mr. White if he
had told Mr. West and he and the rest of the people in the gang didn't
want to work with him (Lake) and Mr. White told Lake he hadn't said that
to Mr. West and when they got back to the shop he would talk to Mr.
West. Mr. Lake stated that Mr. White had said "I was hard to get along
with. They told him that I was hard to get along with sometimes." (Tr.
25).
10. After lunch, and after Mr. Lake had taken care of his union
business (Tr. 187), Messrs. Lake and White went back to the shop and Mr.
White did talk to Mr. West and told him he had not said he didn't like
working with Mr. Lake. Mr. West and Mr. Lake then got into a discussion
as to what had or had not been said (Tr. 25) and Mr. White testified
that Mr. West said,
" . . . if Rick Lake thought that he was a bigger man than him,
then they could go outside the shipyard and settle their
differences." (Tr. 188) /4/
There is no dispute that Mr. West then relieved Mr. Lake of his
duties on the fire alarm truck for the rest of the day and Mr. White
very credibly testified that Mr. West said he,
" . . . did not feel that Mr. Lake could carry out his full
duties as both a fire alarm electrician and union steward." (Tr.
191).
11. There is no dispute that when he relieved Mr. Lake of his fire
alarm system duties on April 18 Mr. West assigned Mr. Lake duties in the
shop. Although Mr. White (Tr. 188) said that Mr. West told Mr. Lake to
sweep and Mr. Lake said that Mr. West told him to "get a broom and sweep
down the floor the rest of the day" (Tr. 25), I found Mr. West's version
far more credible and, accordingly, conclude, as Mr. West testified,
that Mr. Lake said he wanted to speak with Mr. Horner and that he (West)
" . . . told him go ahead down to the work center and be cleaning up the
work area and I will set the appointment up , . . . . " (Tr. 148, 166).
A few minutes later Mr. Lake called Mr. Ault who, because he could not
get away, directed Mr. Lake to another member of Conference Committee,
Mr. Joe Joiner, and Mr. Joiner came down and requested that Mr. Lake be
released to go to the Union trailer and Mr. West released Mr. Lake and
he spent "almost the rest of the afternoon" at the Union trailer talking
with Mr. Ault and Mr. Bernie White, a member of the Conference
Committee.
12. On the next regular work day, April 21, 1980, at the beginning
of the shift, Mr. West told Mr. Lake " . . . to take my tools and
equipment off the fire alarm truck and move them to one of the other
trucks in the gang, that I wasn't going to work on the truck any more."
(Tr. 26).
13. At about 9:00 a.m. on April 21, 1980, Mr. Lake was called back
to the shop for a meeting with Mr. West and Mr. Horner. At this time,
Mr. Lake testified that Mr. West said, " . . . he wanted to apologize
for my (Lake's) misunderstanding in believing that he said he was going
to whip my ass." (Tr. 27). Mr. Lake told Mr. West he couldn't accept an
apology for his believing that I had made a mistake, that I didn't
misunderstand him and I left." (Tr. 27).
14. At about 2:00 p.m. on April 21, 1980, there was a meeting,
requested by Mr. Bernie White at the direction of Mr. Ault (Tr. 57),
with Mr. Griffith. In attendance for the Union were: Messrs. Ault,
Bernie White and Lake; and in attendance for Respondent were: Messrs.
Griffith, Horner and West. Mr. Ault began by reminding Mr. Griffith of
a prior occasion of a supervisor "physically assaulting employees" and
stated, "I didn't want anything like that to occur. . . . and that we
wanted some effective assurances that nothing like this was going to
occur." (Tr. 58). Mr. Lake gave his account of the events and then Mr.
West. Mr. Lake testified that Mr. West said, " . . . he took me off of
it (truck) because at times I was hard to get in touch with because I
was on union business." (Tr. 28). Mr. Ault fully confirmed Mr. Lake's
testimony, stating,
" . . . Mr. West had stated that the reason he had taken Mr.
Lake off the fire alarm truck was because he needed someone
reliable on the truck; that Mr. Lake was not reliable because the
union duties was taking him off. . . . " (Tr. 59) /5/
15. Mr. Lake was not reassigned to fire alarm system work regularly
after April 21, 1980, although he was on some eleven or twelve days in
October, November and December, 1980, assigned to the fire alarm truck
(Tr. 155) and on six of these days he was on Union business part of the
day (Tr. 155).
16. The record shows that Mr. Lake attended gas school from June 27,
1980, to August 12, 1980 (Res. Exh. 2, Tr. 146); and that Mr. Lake
turned down overtime twice (Tr. 180). Respondent Exhibit 1 consists of
the 1980 Service Cards for employees assigned to Mr. West. Overtime is
indicated by a plus (.) or by the letter "F". From Mr. Lake's card,
Counsel for General Counsel states that for the first eight pay periods
of 1980, ending April 19, Mr. Lake worked 77.3 hours overtime; in the
second eight pay periods, ending August 9, Mr. Lake worked 24.4 hours of
overtime; and in the last ten pay periods of 1980, ending December 27,
Mr. Lake worked 58.4 hours of overtime (General Counsel Brief, p. 23).
I have examined Mr. Lake's Service Card carefully and find the
information shown extremely difficult to read especially when double
code designations appear for a given date. My examination of Mr. Lake's
Service Card shows that for the first eight pay periods Mr. Lake may
have had 79.3 hours overtime; for the second eight pay periods 43.3
hours overtime; and for the last ten pay periods 62.4 hours overtime.
General Counsel Exhibit 3, while not prepared to show overtime hours,
shows hours, some of which are designated as overtime. Assuming from
this exhibit that hours in excess of eight per day (G.C. Exh. 2, Art.
16, p. 55) and hours designated as overtime were paid as overtime, this
exhibit would show for the first eight pay periods that Mr. Lake worked
72.3 hours overtime which is quite close to the overtime shown on
Respondent Exhibit 1 (77.3 or 79.3); however, I can not reconcile the
hours for the pay periods ending 1/12; 2/9; 2/23; 3/8 and 4/9 as
between Respondent Exhibit 1 and General Counsel Exhibit 3.
Nevertheless, General Counsel Exhibit 3 shows that of the 72.3 hours
overtime shown only 31.7 hours related to the fire alarm system. Mr.
West testified that more overtime was involved in work other than work
on the fire alarm system which is fully consistent with General Counsel
Exhibit 3. General Counsel Exhibit 4 shows that only two other
mechanics, Mr. C. E. Eckenstein and Mr. G. A. Whiteford were assigned to
the fire alarm truck during the period of April 20 through August 9,
1980, and Mr. Whiteford only during April and May, 1980. The Service
Cards for these employees (Res. Exh. 1) show that Mr. Eckenstein worked
50.6 hours overtime (the second eight pay periods) and that Mr.
Whiteford worked 34.4 hours overtime. However, during the last ten pay
periods, only Mr. Eckenstein was shown to have been assigned to the fire
alarm truck and during this period he worked 122.5 hours overtime.
(Res. Exh. 1).
Conclusions
For reasons set forth above, the record shows that Mr. Lake's
activities as Chief Steward for Shop 07 did interfere with the fire
alarm system work in that the second man assigned to the truck with Mr.
Lake either had to work alone, which restricted the work he could
perform, or, as was more often true, return to the shop to await the
assignment of another electrician; that his foreman, Mr. West, was
unable to contact Mr. Lake by radio when he was engaged in union
activities; and that Mr. West discussed the problem on several
occasions with his superiors. The record is also clear that Mr. West's
initial attempt on the morning of April 17, 1980, to tighten up his
release procedure, by asking Mr. Lake "what his business was, what he
had to go there for", was emphatically rebuffed by Mr. Lake who
responded, it's "none of your business." Mr. Lake's release for union
activity, which Mr. West had denied because Mr. Lake had refused to say
why he wanted to go to the Union trailer, was obtained by Mr. Ault,
Council Chairman. When Mr. Lake in the afternoon of April 17, 1980,
again sought release to go to the Union trailer, Mr. West denied
permission for Mr. Lake to go immediately because of his assignment to
work on a cable emergency and, although he told Mr. Lake that if he
finished the job in time "we would see about letting him go", Mr. West
failed to get back to Mr. Lake, even though Mr. Lake had finished the
job by 3:30 p.m., and Mr. Lake did not go to the Union trailer that
afternoon. There can be no doubt that Mr. Lake was displeased with Mr.
West's refusal to release him on the preceding afternoon when they met
the following morning but their conversation, in the fire alarm truck,
was not shown beyond Mr. Michael J. White's testimony that Mr. Lake said
that Mr. West had told him he could go to the Union office, which he
did. /6/ During the course of the morning, Mr. Lake asked Mr. White if
he had told Mr. West he did not want to work with Mr. Lake. Mr. White
told him he had not and said that when they got back to the shop he
would talk to Mr. West. Messrs. Lake and White returned to the shop
after lunch; Mr. White talked to Mr. West and told him he had not said
he didn't want to work with Mr. Lake (Mr. Lake stated that Mr. White
told him he had told Mr. West that Mr. Lake was hard to get along with)
and Mr. Lake and Mr. West entered into a discussion as to what had, or
had not, been said and there ensued: a) Mr. West's statement to Mr.
Lake about settling their differences outside the shipyard; and b) Mr.
West relieved Mr. Lake of his duties on fire alarm truck for the stated
reason that he "did not feel that Mr. Lake could carry out his full
duties as both a fire alarm electrician and union steward".
Obviously, Mr. Lake was relieved of his duties on the fire alarm
truck on April 18, and was removed from those duties on April 21, 1980,
because of his union activity. Ordinarily, such action for such
admitted reason is, without question, an unfair labor practice;
however, an exception has been recognized where an employee is
transferred to a less demanding position solely because the employee was
unable to meet the work requirements of the position because of
representational duties, Department of the Air Force, 4392 d/ Aerospace
Support Group, Vandenberg Air Force Base, California, A/SLMR No. 537, 5
A/SLMR 486 (1975); Puget Sound Naval Shipyard, Department of the Navy,
Bremerton, Washington, A/SLMR No. 768, 6 A/SLMR 709 (1976). /7/
Respondent asserts that: a) the decision to reassign Mr. Lake from the
fire alarm system to other duties as a high voltage electrician was a
reserved right of management pursuant to Sec. 6(a)(2)(A) and (B) of the
Statute; and/or b) when the use of official time "becomes disruptive of
the Activity's mission, it is incumbent upon Management to take
appropriate action to insure that the accomplishment thereof is not
compromised" (Respondent's Brief, p. 7), as recognized and approved in
Vandenberg, supra, and Puget Sound, supra.
If it were shown that Mr. Lake's use of official time had become
disruptive of the maintenance of Respondent's fire alarm system, I would
agree with Respondent's position. While the proportion of time devoted
to union activities may be significant in determining whether there is
disruption of the mission of an Agency, such factor would neither be
controlling nor of any great weight if it were shown that even brief
absences on union activity compromised the performance of an essential
and critical operation such as Respondent's fire alarm system. But,
having given careful consideration to Respondent's contentions, I do not
find that the record supports them.
First, there is no doubt that Mr. West's removal of Mr. Lake from his
duties on the fire alarm truck was precipitated by their argument on
April 18, in the course of which Mr. West, by his own admission, told
Mr. Lake "if he had anything personal, I would talk to him after work
about it" or as Mr. White testified, Mr. West said, "if Rick Lake
thought he was a bigger man than him, then they could go outside the
shipyard and settle their differences".
Second, while, as Mr. White testified, Mr. West also stated that he
"did not feel Mr. Lake could carry out his full duties as both a fire
alarm electrician and union steward", and Mr. Ault testified that, on
April 21, Mr. West stated that he had taken Mr. Lake off the fire alarm
truck "because he needed someone reliable on the truck; that Mr. Lake
was not reliable because the union duties was taking him off". But, in
reality, Mr. West's concern was, as he testified, "It would help my
scheduling . . . Instead of me having to pull someone off, it would be
better for them to come off a three-man or five or six-man job than come
off a two man job." That is, Mr. West objected to Mr. Lake leaving the
fire alarm truck which, generally, required the truck to return to the
shop and Mr. West having to locate and assign another electrician to the
truck. I appreciate full well the inconvenience to Mr. West of his
having to replace Mr. Lake; but I cannot equate this to "unreliability"
in view of Mr. West's testimony that Mr. Lake always notified him prior
to leaving, indeed, except when Mr. West was directed to release Mr.
Lake, the record shows that Mr. Lake requested permission to leave on
union business and, certainly, both were aware that Article 7 of the
parties' agreement (G.C. Exh. 2) contains various qualifications and
limitations, including, by way of example: Section 5 a. "It is agreed
and understood that a Council representative's first responsibility is
to his job." and Section 5 b. "A Council steward, when desiring to stop
work to transact appropriate Council/Employer business, shall first
obtain approval from his immediate supervisor. If the requirements of
the job, in the judgement of the supervisor, are such that the
representative cannot be excused at the time requested, he shall be
retained in a work status. However, the supervisor will arrange for a
mutually acceptable time . . . ." Neither General Counsel nor Respondent
has addressed the consequences of replacement of Mr. Lake and it would
be inappropriate to comment on an issue neither has raised.
Third, Respondent's assignment of Mr. Lake to the fire alarm truck on
some eleven or twelve occasions in October, November and December, 1980,
coupled with the fact, as Mr. West testified, that on six of those days
Mr. Lake was absent on Union business, strongly refutes Respondent's
assertions either that Mr. Lake was not reliable or that his absence on
union activity compromised accomplishment of his mission in maintaining
the fire alarm system.
Fourth, although the record shows that Mr. West was unable to contact
Mr. Lake by radio when he was absent on union activity, if, as Mr. West
testified, he replaced him on the fire alarm truck, the significance
vis-a-vis the fire alarm system, escapes me. Indeed, since Mr. West
communicated with the fire alarm truck, a reasonable inference would be
that the actual difficulty was Mr. Lake's removal of the truck from
service when he was on union activity. Certainly, if Mr. West could not
contact the truck, the fault could be attributed to Mr. Lake only if he
were responsible; but the record affirmatively shows that Mr. West
never told Mr. Lake that he had missed a call. It is not contended, of
course, that Mr. Lake had any right whatever to use the fire alarm truck
for union activity; however, this was not the issue raised by
Respondent.
In short, the record plainly demonstrates a series of discussions
involving Mr. West and Mr. Lake beginning on April 17, which continued
on the morning of April 18, all involving, in one manner or another, Mr.
Lake's union activity and culminated in the acrimonious "discussion" on
the afternoon of April 18 which ended with the removal of Mr. Lake from
his duties on the fire alarm truck because of his union activities,
i.e., Mr. Lake could not "carry out his full duties as both a fire alarm
electrician and union steward." I do not find that the record
demonstrates that Mr. Lake's union activities interfered with the
performance of his duties as fire alarm electrician so as to warrant
application of the Vandenberg, supra, Puget Sound, supra, exception.
Nor, conversely, does the record demonstrate that the requirements of
the job had impinged on the performance of Mr. Lake's union activities
as Chief Steward, notwithstanding that the job requirements for the
particular duty may well, pursuant to Article 7 of the parties'
agreement, more severely restrict release for union activity than would
be required if Mr. Lake were assigned to a crew of three or more.
The fact that a union official would have greater freedom to perform
his union activities does not, in my opinion, warrant a change of his
job assignment unless the performance of union duties interferes with
discharge of the employee's assigned duties. This was shown both in
Vandenberg, supra, and in Puget Sound, supra, and, accordingly, the
transfer to a job which would allow time for the performance of union
activity, without loss of pay, was found not to have violated Sections
19(a)(1) or (2) of Executive Order 11491, as amended, which are
substantially identical to Secs. 16(a)(1) and (2) of the Statute. The
Authority, in United States Army, Corpus Christi Army Depot, supra, n.
7, held that management may not restrict an employee's job opportunities
because of the employee's union activities in advance of selection for a
job. By implication, certainly, the selection of the employee, who had
been and was still the president of the local union whose union
activities required 70-80% of his working time, compels the conclusion
that, if he may not be denied selection for a job because of his union
activity, neither may he be removed after selection merely because of
his union activity. I would further draw the inference from the
Authority's decision that the amount of time spent in union activities
is not, in any event, the controlling consideration. Rather, it is
whether the performance of the employee's union activities disrupts
performance of an essential mission. In the Corpus Christi case, for
example, Mr. Hall's union activities may have severely limited his
productivity in the transmission shop, as the same activities must
necessarily have limited his productivity in the air frame division, but
without effect on the mission of the activity in either instance, namely
the operation of the transmission shop or the operation of the air frame
division. On the other hand, if performance of union activities impedes
an essential mission of the agency or activity, procurement in
Vandenberg and trouble shooting in Puget Sound, then assignment to job
duties which would permit the performance of union activities, without
loss of pay, may be proper. As noted above, I do not find that
Respondent has shown that Mr. Lake's union activities impeded the
performance of his concededly essential mission, namely maintenance of
the shipyard fire alarm system.
In purely practical terms, I view Vandenberg and Puget Sound, as both
a necessary and proper accommodation when there is an irreconcilable
conflict between the need, and right, of management to insist that a
job, which will not admit of deferral, be performed, and the union
officer's need, and right, to engage in protected activity. When such
irreconcilable conflict exists, then assignment of the employee to
duties, without loss of pay, which will permit the employee to perform
the representational activities without impairment of any essential
function of the agency constitutes a proper accommodation of the equally
compelling need of management, on the one hand, and of the union
officer, on the other. As to Mr. Lake, no such irreconcilable conflict
was shown. To be sure, Mr. West may have found replacement of Mr. Lake
on the fire alarm truck an inconvenience and, obviously, given his
"druthers" he would rather not. Neither the frequency nor duration of
Mr. Lake's absence on union activity shows any irreconcilable conflict
between the performance of his duties and the discharge of his union
activity; Mr. Lake sought permission in advance; Mr. West testified
that he did replace Mr. Lake on the truck; and, upon replacement of Mr.
Lake, the mission was not, in any manner, impaired. Accordingly, the
essential justification for application of the Vandenberg, supra, and
Puget Sound, supra, principle was not shown.
Loss of Earnings
It is clear that fire alarm system work falls within the job
description of high voltage electrician; and that there is no job
description of fire alarm electrician. It is further clear that Mr.
Lake's wage grade and his hourly rate of pay were not affected when he
was relieved of duty on the fire alarm truck; he continued to perform
duties as a high voltage electrician; and that the only change was
that, instead of being assigned to the fire alarm truck, which normally
was a two man operation, he was assigned to crews performing other high
voltage work which normally consisted of three or more electricians.
Respondent asserts that because Mr. Lake continued to perform normal
duties of a high voltage electrician without change of grade or hourly
rate, there was no loss of earnings and, further that there was as much,
or more, overtime opportunity in other high voltage work. General
Counsel asserts that Mr. Lake did suffer a substantial loss of overtime
earnings following his removal from the fire alarm truck.
The record shows without dispute that assignment to fire alarm system
duty carries with it an overtime opportunity and/or requirement. This
results, in part, from the fact the employees assigned to the truck are
first offered the opportunity to perform overtime on the fire alarm
system and, in part, from the fact that the name of the electrician
assigned to the truck is given to the Fire Department for emergency
calls. Indeed, the record shows that Mr. Pinner had been removed from
the fire alarm truck because he was no longer willing to perform
overtime on emergency calls.
The record shows that during the first eight pay periods of 1980, Mr.
Lake worked either 77.3 or 79.3 hours of overtime; but only about 31.7
hours appears to have related to the fire alarm system. For the second
eight pay periods of 1980, Mr. Lake worked either 24.4 or 43.3 hours of
overtime; however, I do not find that the present record shows that the
level of Mr. Lake's overtime earnings for this period, although
obviously less than his overtime earnings for the first eight pay
periods, can be attributed to his removal from the fire alarm truck.
First, Mr. Lake attended gas school from June 27 to August 12, 1980;
and Second, the employees assigned to the fire alarm truck, Messrs.
Eckenstein and Whiteford, worked 50.6 and 34.4 hours overtime,
respectively. /8/
During the last ten pay periods of 1980, Mr. Lake worked either 58.4
or 62.4 hours overtime. But Mr. Eckenstein worked 122.5 hours overtime
during the same period while assigned to the fire alarm truck. Thus, it
appears, as General Counsel asserts, that at least during the last ten
pay periods of 1980, Mr. Lake may have suffered a substantial loss of
overtime earnings as a result of his discriminatory removal from his
assignment to the fire alarm truck. As noted in footnote 8, the record
does show that Mr. Lake declined overtime twice but the record does not
show whether this occurred in the second eight pay periods or in the
last ten pay periods. Nevertheless, without adjustment for overtime
work declined, it appears that Mr. Lake may have suffered a loss of
overtime of roughly 60 hours, or possibly 30 hours if subject to
equalization by Mr. West, /9/ during the last ten pay periods as the
result of his removal from the fire alarm truck. As Mr. Lake has not
been regularly reassigned to the fire alarm truck, he may have incurred
the loss of overtime after 1980. Accordingly, as part of the remedy,
Respondent will be ordered to compensate Mr. Lake for the loss of
overtime earnings, if any, attributable to his discriminatory removal
from duty on the fire alarm truck from April 21, 1980, the date of his
removal, to the effective date he is offered reassignment to such
duties. Although the present record does not show any loss of overtime
earnings for the second eight pay periods of 1980, i.e. April 20 through
August 9, 1980, attributable to his removal from the fire alarm truck,
nothing contained herein shall preclude the inclusion of overtime
earnings lost during this period if, upon subsequent investigation, loss
of overtime for the period is found to have occurred. Any overtime work
declined by Mr. Lake shall be treated as overtime worked by him and
shall be determined, where possible, by the hours worked by the employee
who accepted the overtime assignment refused by Mr. Lake; and if no
other employee accepted the overtime assignment, then, pursuant to
Article 16, Section 9 of the parties' agreement, two hours shall be
"credited" as overtime worked on such occasions.
Having found that Respondent engaged in certain conduct in violation
of Sec. 16(a)(1) and (2) of the Statute, as alleged in Paragraphs 7
through 11 of the Complaint, I recommend that the Authority issue the
following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations, 5 C.F.R. 2423.29, and Section 18 of
the Statute, 5 U.S.C. 7118, the Authority hereby orders that the
Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia,
shall:
1. Cease and desist from:
a) Failing and refusing to restore Mr. Richard L. Lake to
duties as fire alarm electrician, which assignment he had held
prior to April 21, 1980, when he was relieved of such duties
because he had exercised his rights under the Statute to assist a
labor organization by serving as a union officer and had utilized
official time in such capacity in accordance with the parties'
negotiated agreement.
b) Discriminating against Mr. Richard L. Lake in any manner
with regard to hire, tenure, promotion, transfer, overtime, or
other conditions of employment, in order to discourage membership
in or activities on behalf of the Tidewater Virginia Federal
Employees Metal Trades Council, or any other labor organization.
c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights assured
by the Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
a) Offer to restore Mr. Richard L. Lake to duty as fire alarm
electrician, including his restoration to the fire alarm truck as
lead mechanic, and make him whole for all loss of overtime
earnings, if any, which he may have suffered as the result of his
discriminatory removal from his assigned duty or fire alarm
electrician on April 21, 1980, for the period beginning April 21,
1980, and continuing to the effective date of Respondent's offer
of restoration to the assignment which he had held prior to April
21, 1980.
b) Post at its facilities copies of the attached Notice marked
"Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms they shall be signed by the Commanding
Officer, Norfolk Naval Shipyard, Portsmouth, Virginia, and shall
be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin board
and other places where notices to employees are customarily
posted. The Commander shall take reasonable steps 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, 5 C.F.R. 2423.30, notify the Regional Director of
Region 4, Suite 501, North Wing, 1776 Peachtree Street, N.W.,
Atlanta, Georgia 30309, in writing within 30 days from the date of
this Order as to what steps have been taken to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: August 28, 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 offer to restore Mr. Richard L. Lake to duty as fire alarm
electrician, including his restoration to the fire alarm truck as lead
mechanic.
WE WILL make Mr. Richard L. Lake whole for all loss of overtime
earnings, if any, which he may have suffered as the result of his
discriminatory removal from his assigned duty as fire alarm electrician
on April 21, 1980, for the period beginning April 21, 1980, and
continuing to the effective date of our office to restore him to the
assignment which he had held prior to April 21, 1980.
WE WILL NOT discriminate against Mr. Richard L. Lake in any manner
with regard to hire, tenure, promotion, transfer, overtime, or other
conditions of employment, in order to discourage membership in or
activities on behalf of the Tidewater Virginia Federal Employees Metal
Trades Council, or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Statute.
(Agency or Activity
By: (Signature)
Dated: . . .
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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region 4; whose
address is: Suite 501, North Wing, 1776 Peachtree Street, N.W.,
Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Sec. 7116(a)(1) will be referred to, simply, as
"16(a)(1)".
/2/ I am aware that there is a conflict as to whether Mr. Lake used
the word "damn", i.e. It's none of your damn business" as Mr. West
testified (Tr. 97); which Mr. Lake denied (Tr. 234-235); and which Mr.
Michael J. White did not remember (Tr. 185). However, I doubt very much
that the presence or absence of such word had any significance.
/3/ I find Mr. Lake's statement, that " . . . I had people in the
gang working with me . . . ask me why Mr. West picked on me so much",
difficult to accept for the reason that, insofar as the record shows,
there was no basis whatever shown for the statement and Mr. Lake did not
assert that Mr. West, prior to April 17, 1980, had ever questioned his
use of official time and asserted, as I have found, that Mr. West never
confronted him about a missed call; however, since the truth or falsity
of this statement is not material to any issue herein I do not resolve
this conflict.
/4/ Mr. Lake testified that Mr. West said,
" . . . apparently I thought I was a bigger man or better man
than he was, and if that was the case, he wasn't threatening me
inside the shipyard, but one day we would go outside and settle
that." (Tr. 25).
Mr. West testified that,
" . . . Mr. Lake came up and started talking about the same
situation and shook his finger in my face and got all red. That's
when I told him if he had anything personal, I would talk to him
after work about it." (Tr. 148).
/5/ I am aware that Mr. West testified that he stated he removed Mr.
Lake, " . . . so he could perform his union duties better" (Tr. 100) and
"That is the only reason I can remember." (Tr. 100); however he also
testified,
"So that he could better perform his job, do both jobs, have
more time-- be more available for the union business. It would
help my scheduling out too in the morning. Instead of me having
to pull somebody off, it would be better for them to come off a
three-man or five or six-man job than come off a two man job."
(Tr. 177-178).
/6/ I have considered Mr. Lake's testimony concerning the Danny
Coffield matter (Mr. Lake talked to Mr. Coffield, another foreman,
without having sought or obtained permission from either his foreman,
Mr. West, or from Mr. Coffield) and do not credit Mr. Lake's testimony
that this was discussed with Mr. West on April 18; nor do I find
convincing Mr. Lake's testimony that on the morning of April 18 Mr. West
made any statement with regard to Mr. Lake having obtained his release
the proceeding morning through Mr. Ault, i.e., as Mr. Lake asserted Mr.
West said he would "let me off the hook", in part, because it is
conceded that after the incident on April 17, Mr. West and Mr. Lake had
met with Horner. Mr. West's testimony, which I have credited in this
regard, showed a second request on the afternoon of April 17 by Mr. Lake
to go to the Union trailer which Mr. West denied at the time because of
the cable emergency to which Mr. Lake had been assigned. Mr. West's
testimony was, by clear inference, corroborated by Mr. White who
testified that Mr. Lake told him that Mr. West said he could go to the
Union trailer, which he did, on April 18. Nor did Mr. Griffith recall
any conversation concerning Coffield on April 18, 1980.
/7/ The Authority has not, so far as I am aware, squarely decided
this issue, although by implication it may have. United States Army,
Corpus Christi, Army Depot, Corpus Christi, Texas, 4 FLRA No. 80 (1980),
involved a refusal to permit an employee to transfer to a different job
because Respondent had concluded, in advance of any performance in the
"new" job, that the employee could not meet the requirements of the
position because of the demands of his union activities. The employee,
Mr. Hall, was President of the Local Union and spent 70-80% of his time
on union activity, which had led a supervisor to comment, "If I sent Mr.
Hall down to the transmission shop, I would have to send somebody else
down there to do the work." (Decision of ALJ, Case No. 63-8792(CA),
p.3). The Administrative Law Judge had found Vandenberg and Puget Sound
distinguishable, and he found a violation of the Order because
Respondent determined "in advance of any performance by Mr. Hall in the
position, that he could not meet the work performance requirements of
the new position because of the demands of his union activities." He
further stated, "In my view, the proper course of action for Respondent
to take, in order to balance its rights in performing its mission with
those of the employee's protected activity and the goals of efficient
Government, was to consider Hall's request for transfer completely apart
from union considerations, and if the transfer was granted and Mr. Hall
proved to be unable to perform . . . Respondent could have taken action
consistent with . . . Vandenberg and Puget Sound . . . and transferred
him out of the position."
The Authority affirmed the finding of the violation but as to the
comment as to the "proper course of action", stated,
"The Authority does not reach or pass upon the Administrative
Law Judge's opinion on page six of his Decision (quoted above) as
to what Respondent's proper course of action in this case should
have been."
/8/ The record further shows that Mr. Lake declined overtime on two
occasions; however, the record does not show whether this occurred
during this period or during the period covered by the last ten pay
periods of 1980.
/9/ Mr. West testified that he made overtime assignments so as to
equalize overtime opportunity for all mechanics, even as to fire alarm
system work, i.e., people on the fire alarm truck do not necessarily
receive the overtime; however, the extent to which this policy was
carried out in practice was not shown. In addition, there is overtime
on the fire alarm system for which employees are called after work as to
which Mr. West had no control. As the record shows that the person
assigned to the fire alarm truck is called first (Mr. Lake testified
that he never refused such calls), no overtime as the result of such
calls would be subject to "equalization".