[ v18 p55 ]
18:0055(9)CA
The decision of the Authority follows:
18 FLRA No. 9
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION, BALTIMORE, MARYLAND
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 7-CA-40315
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. The General Counsel and the Charging
Party filed exceptions to the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority has reviewed the rulings of the Judge made at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. Upon consideration of the Judge's Decision and the
entire record, the Authority hereby adopts the Judge's findings,
conclusions and recommended Order.
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-40315 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 16, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Carl Clayton,
For Respondent
Daniel Minahan,
For the General Counsel
Federal Labor Relations Authority
Reginald T. Huey,
For the Charging Party
Before: ISABELLE R. CAPPELLO, Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 95 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
On March 23, 1984, the Charging Party filed an unfair labor practice
charge against Respondent. The charge, as amended on June 4, was
investigated by Region VII of the Federal Labor Relations Authority
(Authority); and, on June 13, the complaint initiating this proceeding
was filed.
The complaint alleges that Respondent has violated Section 7116(a)(2)
of the Statute by reassigning Donald Ruxlow, a head steward of Local
1336 of the Charging Party because he engaged in activities protected by
the Statute. It further alleges that the reassignment of Mr. Ruxlow
because of such activities violated Section 7116(a)(1) of the Statute.
/1/
On July 11, 1984, a hearing on the matter was held in Kansas City,
Missouri. The parties appeared, examined witnesses, and adduced
documentary evidence. Briefs were filed on August 10, by the
Respondent, and on August 27, by the General Counsel, pursuant to an
August 9 order extending the briefing time to August 27, on motion of
Respondent received on August 8.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I enter the following
findings of fact and conclusions of law, and recommend the entry of the
following order.
Findings of Fact
1. It is admitted that, at all times material herein, Respondent has
been an agency and the Charging Party (AFGE) has been a labor
organization, as those terms are defined in the Statute. AFGE
represents a consolidated, nation-wide bargaining unit of Respondent's
non-professional employees.
2. At Kansas City, Missouri, Respondent operates the Mid-America
Program Service Center (MAPSC). AFGE is represented there by Local
1336, whose jurisdiction also covers other components of Respondent in
the area, including the Office of Hearings and Appeals (OHA) in Omaha,
Nebraska. Local 1336 represents 3,000 employees of whom 2,400 are
employed in the MAPSC.
3. All of Respondent's Program Service Centers have been covered by
master contracts since 1974. The master contract currently in effect
was executed in 1978; and parts of it have been continued in effect by
mutual agreement of the parties. Article 10 of that agreement, which
deals with union entitlement to official time for representational
activities, has remained virtually unchanged since at least 1978.
Article 10 entitles each union head steward to 25 percent official time
for representational activities, and each union officer to 49 percent.
4. Article 10 of the master contract of the Program Service Centers
provides for "reasonable time" for union representatives to travel
between different buildings in a Program Service Center which are a
substantial distance from each other (G.C. 2 B, page 22). Since 1974,
there has been a practice which allows union representatives in Kansas
City an automatic 30 minutes in travel time, each way, between MAPSC's
principal facilities-- the Federal Office Building (FOB) and the
Mid-Town Office Center (MTOC), located about three quarters of a mile
apart and serviced by an agency shuttle bus which usually runs every
half hour. Employees at the MTOC were housed at the Crown Center
location for six years and up until the least there was lost. The
30-minute provision for travel time was apparently unilaterally
initiated by Respondent's management at the MAPSC when the Crown Center
facility was leased, and continued after the move to the MTOC. See Tr.
56 and 104. /2/ Management has never moved to change the 30-minute
provision.
5. Union representatives who wish to be excused on official time
must obtain prior approval from a supervisor by completing an SSA Form
75. Every time a Union representative travels between the MTOC and the
FOB, in Kansas City, the representative's supervisor notes the automatic
30-minute allowance for travel each way on the SSA Form 75.
6. Donald Ruxlow is a claims authorizer for MAPSC and a head steward
for Local 1336, a union job he has held for about eight years. From
1980 to March 18, 1984, he worked at the MTOC. Before that, he worked
at the Crown Center for six years. For the last three years, Local 1336
has assigned him to represent employees in a union-designated "Section
9," which is a miscellaneous collection of employees on the ninth floor
of the FOB and at a warehouse on Hardesty Avenue, about a mile and a
half from the FOB. Local 1336 created "Section 9" after Respondent
agreed, in 1974, to allow Local 1336 an additional head steward in
return for its acceptance of the module system, a module being a group
of 55 employees who are assigned to handle a certain range of Social
Security numbers through the process from the filing of a claim to
payment. Although he represents employees at various locations, Mr.
Ruxlow spends most of his official time in Local 1336's office on the
tenth floor of the FOB, where the union files are maintained, including
grievance files. Starting in the Fall of 1982, Mr. Ruxlow travelled to
the union office almost every day to fulfill his representational
responsibilities.
7. There are two other head stewards and two officers of Local 1336
who work at the MTOC. The head stewards are Dorothy Joy and Sam
Schmidt. They represent employees at the MTOC. Each has been traveling
to the union office from three to five times a week since May 1983. The
officers are William Clause and Beverly Garrett. Neither is assigned to
represent any particular group of employees. Mr. Clause has been
traveling to the union office from the MTOC three to five times a week
for the past five years; and Ms. Garrett has been traveling to the
union office with the same frequency since May or June 1983. When she
became Secretary of Local 1336, Ms. Garrett was "asked," by the section
chief, if she would like to physically move to the FOB; she declined;
and she was not moved (Tr. 76-77). Instead, she made an arrangement
with her section chief whereby she drove her car to the FOB, and was not
required to return to the MTOC to check out at the close of the working
day. This arrangement eliminated half of her travel time allotment to
and from the FOB. Now, she is required to come back to the MTOC and
uses the full one hour in travel time.
8. On April 26, 1984, the Manager of the section in which Mr. Clause
and Ms. Garrett work, asked the Director of Management at MAPSC,
Patricia Madach, to "(p)lease look into reassigning these two union
officials as soon as possible to the Federal Office Building" (R. 2).
The reason given was that they do not normally handle employee
grievances, spend 49 percent of their working time in the union office
in the FOB, and the transfer would save travel time. No action has as
yet been taken by management. But, in July 1984, Ms. Garrett herself
"put in for a move" to the FOB (Tr. 77).
9. It was stipulated that Mr. Ruxlow was known to Respondent as
being an active union steward "who participates in protected activity on
a regular basis" (Tr. 34). Mr. Ruxlow's most active period as a steward
began in September 1982. Initially, it involved turmoil at the
warehouse on Hardesty Avenue where no other steward is assigned to
represent these employees. Three or four employees were belligerent
towards each other and, by the time Mr. Ruxlow appeared, a congressman
and the Inspector General had been contacted; and an employee had
received a letter of reprimand. Mr. Ruxlow dealt with various
management officials concerning this situation, including Patricia
Madach, who later informed him of his reassignment. By December 1983,
the controversy abated-- an employee was transferred and the warehouse
was reorganized under a new chief. In 1983, Mr. Ruxlow began processing
a grievance on behalf of an OHA employee, in Omaha. This representative
involved 10 hours of arbitration on November 1 and a second session in
January 1984. The record does not show that Mr. Ruxlow received any
allowance for travel to the warehouse or any OHA facility.
10. Ms. Madach is the Director of Management at MAPSC and the
management official responsible for labor relations and the policing and
monitoring of the use of official time by union officials. In August
1983, she became concerned about the use of official time by stewards to
represent non-MAPSC employees. See G.C. 7. This representation is
allowed by the parties' contract, in its "Crossover" provision; but the
Union is required to make "maximum" efforts to first utilize
representatives with the component. See G.C. 2a, page 73, Article 30,
Section 4. On August 1, 1983, she notified Local 1336 that union
officials must indicate on their SSA Form No. 75 that they are
representing a non-mapsc employee, and justify the need.
11. In October 1983, the chief of Mr. Ruxlow's section requested an
accounting of his use of official time to represent the OHA employee in
Omaha. Mr. Ruxlow furnished an accounting of his time from the period
of August 5 through October 13, but was unable to separate the time
spent representing the OHA employee from his other representational
duties. See G.C. 4.
12. On November 1, 1983, Ms. Madach asked Local 1336 to furnish the
union copies of SSA Form No. 75 for Mr. Ruxlow for the days Mr. Ruxlow
accounted for to his section chief. This request was made pursuant to
Article 10, Section (e) of the Master Agreement. See G.C. 5. This was
the first time management had ever invoked this provision of the
contract. Local 1336 complied with the request.
3. On March 1, 1984, Ms. Madach returned the Ruxlow forms to Local
1336 with a memorandum which began with the advice that her review of
the forms indicated that Mr. Ruxlow was "not requesting or obtaining
official time properly, and (was) misrepresenting his time on the
SSA-75-U4's" (G.C. 7, page 1). A copy of her memorandum was sent to Mr.
Ruxlow and his section manager. She referred to her memorandum to Local
1336 of August 1, regarding what must be indicated on the forms in
regard to so-called "Crossover" time. She specified instances where Mr.
Ruxlow had not given sufficient information to his supervisors to allow
management to insure that the contract provisions for "Crossover" time
were being fulfilled. She also specified some instances where Mr.
Ruxlow reported working on grievances for specified individuals for whom
management had no records of a pending grievance, and where Mr. Ruxlow
reported a contact with a union official who was involved in a hearing
on that day, and had not taken official time or leave without pay. She
noted that she was bringing these "discrepancies and inaccuracies" to
Local 1336's attention pursuant to their contract and that, pursuant to
the contract, Local 1336 had 5 working days to furnish written
notification of "whatever correction actions may have been taken" (G.C.
7, page 2). She asked for Mr. Ruxlow's explanation for each alleged
discrepancy, inaccuracy, and misrepresentation, and noted that Local
1336's written reply would be "taken into consideration in determining
whether disciplinary action should be contemplated" (G.C. 7, page 3).
(In fact, no disciplinary, or other action has ever been taken against
Mr. Ruxlow). She concluded her memorandum with the following two
paragraphs:
During my review of Mr. Ruxlow's use of official time, it came
to my attention that Mr. Ruxlow is the Head Steward for components
located in the FOB only while he is assigned to a module in the
MTOC. I, therefore, reviewed his records to see how often it was
necessary for Mr. Ruxlow to come to the FOB in order to fulfill
his union obligations. During the last year, there were only 10
workdays on which Mr. Ruxlow did not travel to the FOB for his
representational duties. For the balance of the days during the
last year, Mr. Ruxlow spent part of all of his day in the FOB on
official time or he was on some type of approved leave.
Granting travel time for a steward on an almost daily basis is
an unnecessary financial burden on the agency and seriously
interferes with the assigned duties of the agency. In order to
facilitate Mr. Ruxlow's ability to properly fulfill his
representational duties, he is being assigned to a unit which is
closer to the components he serves. Effective March 18, 1984, Mr.
Ruxlow will be assigned to Module 25, which is located in the FOB.
Having Mr. Ruxlow in the same building as the union office and
the components he represents should allow you to better insure
that he is utilizing and reporting his official time properly. We
expect you to exercise your responsibility to insure that not only
Mr. Ruxlow, but all union officials and stewards are completing
their Form SSA-75-U4's accurately.
See G.C. 7, page 3.
14. The decision to transfer Mr. Ruxlow to the FOB was not made by
Ms. Madach, however, but by Marlyn Shuler, the Director of Operations at
MAPSC. Mr. Shuler has 180 managers and 42 modules "to worry about" and
rarely knows what individual stewards do (Tr. 98), or how they use up
their official time, leaving that "worry" instead to Ms. Madach and her
labor relations staff. Mr. Ruxlow's managers had been requesting that
he move Mr. Ruxlow to the FOB for "quite some time" before he received a
report from the labor relations staff which also suggested that he might
want to move Mr. Ruxlow. Until he received this report, Mr. Shuler had
not fully realized the extent of the problem. The report was based on a
review of Mr. Ruxlow's SSA-Form-75s for a few years. It showed him
coming to the FOB almost every day. And it showed that the frequency of
his trips had been increasing from a low of 133 in 1978 to a high of 211
in 1983, when there were 225 workdays available and Mr. Ruxlow had also
used quite a bit of sick leave. Mr. Shuler saw this travel as "of no
particular value to him (Mr. Ruxlow) and a total loss to (MAPSC) of
claims authorizer services for one hour per day" (Tr. 90). There is "a
shortage of claims authorizers pretty much across the board" at MAPSC
(Tr. 99). Mr. Shuler testified, in an honest, straightforward way, that
his decision to transfer Mr. Ruxlow to the FOB was related solely to the
unnecessary use of an hour a day of travel time, and that Mr. Ruxlow's
activities on behalf of local 1336 had nothing to do with the decision.
Mr. Shuler admitted that he preferred to ask employees whether they
wished to be transferred before transferring them and that this was not
done in the case of Mr. Ruxlow. However, Mr. Shuler was not shown to
have displayed any union animus or to have ever curtailed the use of
official time by Mr. Ruxlow or any union representative. There is a
practice at the MAPSC to transfer employees to eliminate frequent and
unnecessary travel time between the FOB and the MTOC. Accordingly, I
credit Mr. Shuler's testimony that he transferred Mr. Ruxlow solely to
eliminate the one hour travel time between the FOB and the MTOC.
15. The manager of Mr. Ruxlow while he was a claims authorizer at
the MTOC supervised him for three years. She established that he
travelled to the FOB almost every day. As a head steward entitled to 25
percent official time, his workload was reduced by 25 percent. He could
not be assigned a lot of hard cases because he was not available long
enough. Mr. Ruxlow himself admitted that occasionally he would have to
suggest that a case be given to someone else, if it were "a real
expedited" one, because of his union duties (Tr. 41). His manager was
not bothered by his use of official time, but considered the added
travel time as a "major interference with the efficiency of (her)
operation" (Tr. 87). She evaluated his work performance as "above
average in accuracy and production" (Tr. 90). It was estimated that the
one hour spent by Mr. Ruxlow in travel time to the FOB had cost MAPSC
$11,652 in salary over the period from 1978 through the first quarter of
1984.
16. Mr. Ruxlow was transferred to the FOB on March 18, 1984 without
any prior consultation. The assignment involved no change in pay,
benefits, duties, or responsibilities. It required no relearning
process. He continued to service claimants from the same State.
However, Mr. Ruxlow did not want to be transferred. He had established
a good working relationship with managers in his module at the MTOC.
Moreover, parking was free at the MTOC; and now he must pay to park
near the FOB. Also, the MTOC is smaller than the FOB, and so it was
easier for Mr. Ruxlow to arrive at and depart from his work station at
the MTOC. Mr. Ruxlow's present supervisor knows he was transferred
because he was using so much travel time and questioned closely, on one
occasion, when he sought permission to go to the MTOC to represent an
employee there. Nevertheless, she granted his request, after checking
with the section office.
17. Prior to Mr. Ruxlow's transfer, no union representative had been
transferred from the MTOC to the FOB because of the travel-time factor.
The only other witness to serve in the MTOC as a head steward
established that she went to union office at the FOB on an average of
two or three times a week, in contrast to Mr. Ruxlow's almost daily
visits over a period of years. She apparently represented employees at
the MTOC. However, "sometimes" employees in other sections personally
requested her; and then she was required to go over to the FOB more
often, "sometimes" every day of the week (Tr. 77).
18. In response to a question as to whether anybody in his present
module knows why he was transferred, Mr. Ruxlow testified, inter alia,
that some employees had remarked to him: "Well, management got you
finally, didn't they" (Tr. 42-43). In agreement with Respondent (G.C.
Br. 6, fn. 2), I conclude that this statement is ambiguous and could be
interpreted as relating to the reduction of an hour a day in travel-time
usage, which usage had left other employees to do Mr. Ruxlow's share of
the workload, and was without any relationship to his use of official
time to perform representational duties.
Discussion and Conclusions
The General Counsel has not established, by a preponderance of the
evidence /3/ that the transfer of Donald Ruxlow, a head steward of Local
1336, from one building (the MTOC) to another (the FOB) was a violation
of either Section 7116(a)(1) or (2) of the Statute, as alleged in the
complaint.
A. The alleged Section 7116(a)(2) violation.
One element of proof of a Section 7116(a)(2) unfair labor practice is
that the action taken was discriminatory in nature. See footnote 1,
above. The General Counsel argues that it is "obvious" that the action
taken here was "predicated on discrimination-- that he was treated
differently because he was a union representative" (G.C. Br. 8) and
relies on several facts of record.
Primary reliance seems to be placed on the Madach memorandum of March
1, 1984 to the President of Local 1336. See G.C. Br. 8 and finding 13,
above. Patricia Madach is the management official responsible for
monitoring and policing the use of official time by union
representatives. The President of Local 1336 is her counterpart. To
him she wrote to complain about what seemed to her to be a misuse of
official time by Mr. Ruxlow and to seek an explanation. Only
incidentally did she bring up the matter that, in reviewing his
official-time forms, it had come to her attention that he was
representing union components located in the FOB while assigned by
management to the MTOC, and this was necessitating almost daily trips to
the FOB. She then went on to comment that "(g)ranting travel time for a
steward on an almost daily basis is an unnecessary financial burden on
the agency and seriously interferes with the assigned duties of the
agency." See finding 13, above. It was in this context that she then
used the language relied upon by the General Counsel:" "In order to
facilitate Mr. Ruxlow's ability to properly fulfill his representational
duties, he is being assigned to a unit closer to the components he
serves." See finding 13, above, and G.C. Br. 8. She then used the
second sentence relied upon by the General Counsel: "Having Mr. Ruxlow
in the same building as the union office and the components he
represents should allow you to better insure that he is utilizing and
reporting his official time properly." See finding 13 and G.C. Br. 8.
She then concluded the memorandum by stating: "We expect you to
exercise your responsibility to insure that not only Mr. Ruxlow, but all
union officials and stewards are completing their (official time forms)
accurately." See finding 13. Thus, when viewed in context, the Madach
statements relied upon the General Counsel do not reflect discrimination
against union representatives, but rather a legitimate, managerial
concern in policing the use by union representatives of time allowed by
the parties' collective bargaining commitments to perform union
representational responsibilities.
Furthermore, the decision to transfer Mr. Ruxlow was not made by Ms.
Madach, but by his line supervisor, Marlyn Shuler, Mr. Shuler testified
creditably that his decision was based solely upon such a needless waste
of time (one hour daily over a period of years) that was of no benefit
to Mr. Ruxlow and was a considerable loss to the activity. See finding
14, above. Mr. Shuler, when asked on cross-examination whether Mr.
Ruxlow was reassigned because he was a union steward, replied:
"Coincidentally so" (Tr. 114). But this does not necessarily infer a
discriminatory motive. Rather, it explains that Mr. Ruxlow's transfer
was in line with an established practice of transferring MTOC employees
to the FOB to eliminate frequent unnecessary travel time between the two
buildings and, it just so happened, that Mr. Ruxlow's frequent and
unnecessary travel was related to his union stewardship. As in the case
cited by the General Counsel at page 8 of his brief, Veterans
Administration Medical Center, Buffalo, New York (VA), 13 FLRA No. 46,
13 FLRA 283, 291 (1983), it was in the nature of "fortuitous
circumstances" that a union-related matter was what precipitated the
action taken. In the VA case, a union steward was eliminated during a
selection process, but no discriminatory motive was found. As in the VA
case, it is significant here that there was no proof of union animus or
strain between the manager who made the decision and the union steward
affected by it. Here, the steward was treated the same as other
employees who were transferred from the MTOC to the FOB to eliminate
unnecessary loss of production time to travel between the two buildings.
The General Counsel also claims that Mr. Ruxlow was treated
differently from other union representatives. But the record shows that
Mr. Ruxlow was unique among union representatives located in the MTOC--
he was the only one regularly assigned to represent a union component in
the FOB building, to which he was transferred, and had no regularly
assigned duties to represent any union component in the MTOC building
from which he was transferred.
The General Counsel notes that another MTOC-situated union
representative was first asked by management if she wanted to transfer
to the FOB; was not transferred when she declined; and was first given
another option. See G.C. Br. 15 and finding 7, above. However, as also
noted by the General Counsel, there is no policy statement or regulation
concerning such transfers; and management could have rationally decided
that Mr. Ruxlow's unique status made his transfer imperative, namely his
job as a claims authorizer being in short supply at the activity and his
having no regular union assignment to represent anyone in the MTOC so
that he would not need to make frequent use of travel time to return to
the MTOC.
The General Counsel also argues that "the timing of Ruxlow's
reassignment is suspect" (G.C. Br. 13), in that he had been traveling to
the FOB extensively for years, and it was not until he represented an
employee in a component other than MAPSC, on so-called "crossover" time
that MAPSC management reassigned him to the FOB. Suspicions alone do
not meet the burden of proof required in this case, however.
Management's labor relations staff has a legitimate interest in
inquiring as to use of crossover time. Use of travel time was not an
unnatural consequence of this inquiry. The labor relations staff
brought the travel-time matter to the attention of the line supervisor
who could eliminate the problem. He had been hearing complaints from
his managers about the problem, but had not fully appreciated the extent
of it until receiving the report from the labor relations staff. He
then acted to eliminate it. He had no ax to grind with Local 1336, or
Mr. Ruxlow, and did not concern himself with labor relations matters,
leaving that to the labor relations staff. The reassignment gives him
an added hour of production time in an area where it is needed. Any
aroused suspicions are allayed by these facts.
Having concluded that the transfer of Mr. Ruxlow was now shown to be
discriminatory in nature, it is unnecessary to reach other issues raised
and discussed by the parties as to the alleged section 7116(a)(2)
violation.
B. The alleged Section 7116(a)(1) violation
Since the briefs were filed in this case, the Authority has issued a
decision which is central to the determination of the issue presented
here, namely, under what circumstances does an unfair labor practice
occur when the right of an employee to engage in protected activity /4/
collides with the right and duty of an agency to run an efficient and
economic operation. See Department of the Navy, Norfolk Naval Shipyard,
Portsmouth, Virginia, (Norfolk Naval Shipyard), 15 FLRA No. 165, 15 FLRA
867 (August 31, 1984), holding that:
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. See 15 FLRA 867-868.
In the Norfolk Naval Shipyard case the employee who was engaged in
protected union activity was a five alarm technician, whose duties were
to maintain the five alarm system, and who worked on a five alarm truck.
The Authority held that his transfer off the truck was not shown by the
agency to be "warranted" because "the record di(d) not demonstrate that
the protected representational activities of the employee (t)here
involved interfered with the performance of his duties . . . ." (id at
868).
Application of the Norfolk Naval Shipyard rationale to the facts of
record here calls for a different conclusion. Local 1336 has the right
to assign stewards where it deems them to be necessary; and the steward
has the right to assist Local 1336 by accepting this assignment. But
management also has the right, indeed the duty, to run an efficient and
as economic operation as possible. These rights collided in the person
of Mr. Ruxlow who, as a head steward, was spending one hour a day,
almost every day, over an extensive period, in traveling from a building
where he represented no bargaining-unit component (the MTOC) to another
building (the FOB) where he did represent a component and where all the
union files on grievances are kept. Management was thus losing one
hour, daily, of production time from an employee holding a job that was
in short supply and necessary to perform a task essential to the
activity's function-- the processing of Social Security claims.
Management acted to eliminate this impediment to its function by
transferring Mr. Ruxlow to the FOB. The transfer in no way interfered
with Mr. Ruxlow's ability to engage fully in his actual representational
duties. It involved no loss of pay, status, or job change. Supervision
changed, as well as certain office perks, such as free parking--
concerns of legitimate interest to Mr. Ruxlow. However, AFGE itself
recognizes that the "public interest demands . . . the continued
implementation of . . . work practices to facilitate and improve . . .
the efficient accomplishment of the operations of the government." See
the Preamble to the parties' collective bargaining agreement (G.C. 2 A,
page 1). Thus, Mr. Ruxlow's interest in staying put can be said to have
been justifiably subordinated to this paramount concern of the public
interest in eliminating the wasteful practice here at issue. Under the
circumstances presented by this record, it must be concluded that Mr.
Ruxlow's transfer was "warranted," in the Norfolk Naval Shipyard sense.
Ultimate Findings and Recommended Order
Respondent was not shown, by the preponderance of the evidence, to
have engaged in the unfair labor practices alleged in the complaint.
Accordingly, the complaint in this case should be, and it hereby is
dismissed.
Isabelle R. Cappello
Administrative Law Judge
Dated: November 21, 1984
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The pertinent statutory provisions are as follows:
Section 7116(a)(2) makes it an unfair labor practice for an
agency "to encourage or discourage membership in any labor
organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment."
Section 7116(a)(1) makes it an unfair labor practice for an
agency "to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter."
Section 7102 declares that:
Each employee shall have the right to form, join, or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. Except as otherwise
provided under this chapter, such right includes the right-- . . .
(1) to act for a labor organization in the capacity of a
representative and the right, in that capacity, to present the
views of the labor organization to heads of agencies and other
officials of the executive branch of the Government, the Congress,
or other appropriate authorities . . . .
/2/ "Tr." refers to the transcript. Corrections to the transcript
proposed by the General Counsel and unopposed by Respondent are granted.
Further corrections are made pursuant to 5 C.F.R. 2423.19(r). All
corrections appear as Appendix A to this Decision.
Other abbreviations to be used in this Decision are as follows.
"G.C." refers to exhibits of the General Counsel, and "R." to those of
Respondent. "G.C. Br." refers to the brief of the General Counsel, and
"R. Br." to that of Respondent.
/3/ This is the statutory burden of proof. See Section 7118(a)(7)
and (8) of the Statute.
/4/ The protected nature of the activity here involved-- travel to
perform representational duties-- seems clear; and Respondent does not
argue otherwise, in its brief. Compare also Internal Revenue Service,
Western Region, 11 FLRA No. 112, 11 FLRA 655, 656 (1983), holding that
an agency committed an unfair labor practice by unilaterally terminating
an established practice of holding grievance meetings in San Francisco
and ordered the agency to reimburse the union representative for the
expense of attending them.