[ v11 p318 ]
11:0318(67)CA
The decision of the Authority follows:
11 FLRA No. 67
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
BOSTON AIR ROUTE TRAFFIC CONTROL
CENTER, NASHUA, NEW HAMPSHIRE
Respondent
and
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFL-CIO, LOCAL 202
Charging Party
Case No. 1-CA-423
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint and recommending
that it cease and desist therefrom and take certain affirmative action.
Exceptions filed by the General Counsel to the Administrative Law
Judge's Decision were subsequently withdrawn. /1/
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, and noting particularly the
absence of exceptions, the Authority hereby adopts the Judge's findings,
conclusions, and recommendations. /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, IT IS
HEREBY ORDERED that the Department of Transportation, Federal Aviation
Administration, Boston Air Route Traffic Control Center, Nashua, New
Hampshire, shall:
1. Cease and desist from:
(a) Discriminating against Andrew Ruoff by restricting his right to
make voluntary changes in shift assignments and regular days off because
an unfair labor practice charge was filed on his behalf or because he
gave information to the Authority in support of that charge.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to carry out the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Remove the order regarding the approval of swap requests
submitted by Andrew Ruoff, which order was placed in the Night Order
Book by William Henderson.
(b) Post at its Boston Air Route Traffic Control Center, Nashua, New
Hampshire, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Facility Chief of the Boston Air Route Traffic
Control Center or his designee, and shall be posted and maintained by
him 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 ensure 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 of Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., February 10, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, 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 discriminate against Andrew Ruoff by restricting his
right to make voluntary changes in shift assignments and regular days
off because an unfair labor practice charge was filed on his behalf or
because he gave information to the Authority in support of that charge.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL remove the order regarding the approval of swap requests
submitted by William Ruoff, which order was placed in the Night Order
Book by William Henderson.
(Agency or Activity)
Dated: . . . By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region I, whose
address is: 441 Stuart Street, 9th Floor, Boston, MA 02116 and whose
telephone number is (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Richard F. Fisher
For the Respondent
Paul E. Stanzler, Esq.
Carol Waller-Pope, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Statute, 5 U.S.C. 7101 et seq., as a result of an
unfair labor practice charge filed July 9, 1980, with the Federal Labor
Relations Authority. Consequently, on November 5, 1980, the Regional
Director, Region 1, of the Authority issued a complaint alleging that
Respondent unlawfully restricted the right of employee Andrew Ruoff to
make voluntary changes in shift assignments and regular days off because
a union filed an unfair labor practice charge on his behalf and because
he gave testimony in support of that charge.
A hearing was held on December 4, 1980, in Boston, Massachusetts.
All parties were afforded full opportunity to be heard, to examine
witnesses and to introduce evidence. On January 30, 1981, post-hearing
briefs were filed. Upon the entire record, including my observation of
the witnesses and their demeanor, I make the following findings,
conclusions and recommendations.
Finding of Fact
The Professional Air Traffic Controllers Organization, Local 202 (the
Union or PATCO) is the exclusive bargaining agent of Respondent's air
traffic controllers. Mr. Andrew Ruoff is a member of the bargaining
unit and he has been employed by Respondent for nine years as an Air
Traffic Control Specialist.
At the Boston Air Route Traffic Control Center (ARTCC), Air Traffic
Control Specialists are grouped in teams of approximately ten members
and each team has a supervisor. Each assistant chief supervises a group
of four teams. ARTCC is in continuous operation and the Air Traffic
Control Specialists work rotating shifts on a five week cycle with two
of those weeks on a 7 a.m. to 3 p.m. schedule, two other weeks on a 3
p.m. to 11 p.m. schedule, and the fifth week on an 11 p.m. to 7 a.m.
schedule.
Voluntary shift swapping is governed by Article 35 of the collective
bargaining agreement between PATCO and Respondent. It states:
The Employer shall approve the exchange of shifts and/or days
off by employees of equal qualifications, provided the exchange is
consistent with the operational needs of the facility and does not
result in overtime or violation of the basic workweek.
Requests for exchange of assigned shifts and regular days off are
rarely disapproved and the practice of shift swapping at Respondent's
facility is widespread and continuous. Swaps are usually made out of
preference for working only certain hours or in order to accommodate
non-work related activities such as social or athletic events. In order
to facilitate shift swapping, the employees developed a book, kept at
the watch supervisor's desk, in which an employee may enter his name,
the shift and day he is scheduled to work and the shift and day he would
prefer to work. An employee who is willing to make the swap enters his
name beside the request and takes the swap to any supervisor on duty who
officially records the exchange in the facility's master schedule book.
Employees at the facility have swapped as much as half of their
assigned shifts on a regular basis in order to work nights only. One
controller regularly swaps twice a week during the bowling season and an
additional two or three times per week during the professional
basketball season. The average team member swaps at least twice a
month. None of the employees who testified has ever sought
authorization to initiate a swap or was required to justify a swap
request. Other than in a case involving a swap with Mr. Ruoff, the only
turndown of a swap request was grounded on unequal technical
qualification as between the two controllers seeking to make the swap.
Employees have even swapped teams, with one employee making such a
swap for a period of three months. During shift or team swaps employees
often miss team briefing sessions. Some have missed more than half of
these briefings which, although they have been described as mandatory,
cover material which is otherwise available to the employees and are
generally conducted in such a dull atmosphere so as to prompt some
employees to seek "spot leave" in order to avoid the briefing when it is
held while they are on duty. There is no evidence that anyone had ever
been disciplined for missing one or more of these briefings.
From early 1979 to September of 1980, Andrew Ruoff was assigned to a
team supervised by William Henderson. Mr. Henderson, who last rated Mr.
Ruoff in February 1980, described him as an above average, technically
sound employee. Prior to June of 1980, Mr. Henderson had never
discussed with Mr. Ruoff the frequency of his swapping. Mr. Ruoff had
been regularly swapping about eight shifts every five weeks. Of the 13
team briefings held during the approximately 18 months he was on Mr.
Henderson's team, Mr. Ruoff missed 9 of those meetings.
On April 21, 1980, an unfair labor practice charge was filed by the
Union on behalf of Mr. Ruoff. The charge alleged that Mr. Henderson,
among others, denied Mr. Ruoff the right to be represented during a
disciplinary meeting between the two of them.
On June 9, 1980, Mr. Henderson was interviewed by an Authority agent
as a part of the investigation of the April 21, 1980 charge. Mr.
Henderson knew at this time that the agent sought information about the
meeting he had with Mr. Ruoff which formed the basis of the unfair labor
practice charge. /3/ On the very next day, Mr. Henderson went to the
watch desk to make some entries in the leave book and while doing so,
decided to look back in the book over the weekend just passed. /4/ It
was at this point in time, on Wednesday, June 10, that Mr. Henderson
learned that Mr. Ruoff took sick leave on June 7, and that he had
swapped shifts in order to be off duty on June 8 and 9. These five
consecutive days off duty became the ostensible reason for a meeting
with Mr. Ruoff called by Mr. Henderson. However, it should be noted at
this juncture, that four days before that meeting, and two days after
the check of the leave book, Mr. Ruoff met with the Authority agent to
give him a statement in regard to the April 21 unfair labor practice
charge.
On June 14, 1980, Mr. Ruoff received a note from Mr. Henderson
stating that Mr. Ruoff should request no more swaps and that none would
be approved until the two of them had met. The meeting took place on
June 16. Mr. Henderson advised Mr. Ruoff that he would no longer honor
his swap requests unless they were of an imperative or urgent need and
that no other supervisor could approve his swap requests. He explained
that the restriction was necessary because Mr. Ruoff's swapping had
become excessive, he missed too many team briefings which was
detrimental to the crew concept, and it was becoming increasingly more
difficult to evaluate his performance on a day-to-day basis. Since that
meeting, and for the remainder of the summer, all swaps requested by Mr.
Ruoff were denied by Mr. Henderson. Mr. Henderson also made an entry in
the night order book /5/ that no supervisor should approve a shift swap
involving Mr. Ruoff without first checking with Mr. Henderson. /6/
On June 23, 1980, Mr. Henderson wrote a memorandum for the record in
which he requested that Mr. Ruoff desist from shift swapping unless the
request was "urgent or emergency" in nature. Two of his superiors told
Mr. Henderson that he could not make a blanket restriction on shift
swapping and that, in accordance with the contract, any restriction
would have to be based on operational needs. Mr. Henderson was told to
rescind the words "urgent or emergency" and to communicate the recission
to Mr. Ruoff. He never did. /7/
On June 27, 1980, Waldo B. Cumings, a union official, came to Mr.
Ruoff's work area with written communications from the Authority
concerning the charge which was filed in April. As they were discussing
the material, Mr. Henderson approached and said, "Cumings, get your
PATCO shit out of here. /8/ When Cumings tried to explain that he had
official business to discuss with Mr. Ruoff, Mr. Henderson conveyed his
indifference to the subject matter and ordered Mr. Cumings to leave.
Mr. Cumings obliged.
Discussions and Conclusions
The General Counsel argues that to support a violation of Section
7116(a)(4) of the Statute, one must show that the employee was engaged
in protected activity, that the employer has knowledge of that protected
activity, and that the employee has suffered disparate treatment as a
result of his protected activity. Respondent does not take issue with
this legal standard. It admits that Mr. Ruoff was engaged in protected
activity (the filing of and making a statement in furtherance of an
unfair labor practice charge), but it takes the position that the
General Counsel has failed to satisfy its burden of proof as to the
other elements which are necessary to the constitution of a violation.
There is no question on the record that Respondent, and Mr. Henderson
in particular, was aware of the protected activity engaged in by Mr.
Ruoff. The charge itself mentions Mr. Henderson by name and refers to
an incident by specific date. Although Mr. Ruoff's name was not
mentioned in the charge, the circumstances outlined in the charge make
it clear that the employee involved was Mr. Ruoff. In any event, there
can be no doubt of Mr. Henderson's knowledge as of June 9, 1980, when he
was interviewed by an Authority agent concerning the substance of the
April charge. In any event, Mr. Henderson's memory of the events was,
at best, hazy and he could not specifically deny knowledge of Mr.
Ruoff's protected activity when he testified in the instant case.
As to the next issue, disparate treatment, there also can be no doubt
on this record. First of all, shift swapping at this facility is the
norm and not the exception. Some employees attempt to work nights
exclusively, and some attempt to work only days. One employee swaps his
night shift four to five times per week in order to bowl and to attend
professional basketball games. One employee even swapped crews for
three months and then swapped shifts several times while on the
substitute crew. Mr. Henderson himself has not worked a midnight shift
for at least a couple of years. Second, it is clear that team briefings
are attended, but not well attended. As mr. Henderson admitted, the
average attendance hovers at seventy-five percent. Two employees other
than Mr. Ruoff testified that they attended half or less than half of
the scheduled briefings. Others testified that they were granted "spot
leave" which they requested specifically in order to miss a dull
briefing. Most of the information discussed in a briefing also appears
in a written log which may be read when convenient. Finally, even if
one were to surmise that Mr. Ruoff was the most profuse in his exercise
of the swapping right, there is no statistical evidence from which
reliable comparison may be made between his swap frequency and that of
other similarly situated employees. The General Counsel having
introduced evidence that shift swapping is generally extensive, it is
incumbent upon Respondent to come forth with evidence which would tend
to show that Mr. Ruoff's history is egregious. This Respondent has not
done. I conclude that, on the basis of this record, to single out Mr.
Ruoff for restrictive treatment while other similarly situated employees
are engaging in substantially similar conduct is to treat him
disparately.
The final question is whether the disparate treatment accorded Mr.
Ruoff resulted from his engaging in protected activity. To support an
affirmative answer, the General Counsel argues that the severity and
timing of the restriction along with Mr. Henderson's stated rationale
for the restriction are persuasive. Respondent correctly contends that
mere suspicion is not enough to support a finding. /9/
The question is not whether there is lawful justification for the
restriction, but rather whether the true reason for the restriction was
his protected activity. That determination need not be based on direct
evidence alone. As stated in Shattuck Denn Mining Corp., (Iron King
Branch) v. NLRB, 362 F.2d 466 (9th Cir. 1966):
Actual motive, a state of mind, being the question, it is
seldom that direct evidence will be available that is not also
self-serving. In such cases, the self-serving declaration is not
conclusive; the trier of fact may infer motive from the total
circumstance proved. Otherwise no person accused of unlawful
motive who took the stand and testified to a lawful motive could
be brought to book. (362 F.2d at 470.)
Commenting that the trier of fact need not be naive, /10/ the Court in
Shattuck went on to posit that, "If he finds that the stated motive . .
. is false, he certainly can infer that there is another motive."
In the instant case, the rationale for placing the restriction on Mr.
Ruoff sprang from Mr. Henderson's review of the leave book. That was
when Mr. Henderson found that by swapping regular days off and taking
one day of sick leave, Mr. Ruoff managed to be off five days in a row.
Mr. Henderson, testified that he suspected that Mr. Ruoff had abused
sick leave. However, Mr. Henderson was not able fully to explain or
justify his suspicion of an abuse of sick leave. He couldn't recall why
he went to the leave book in the first place; he couldn't recall who
first made a remark about five days off in a row; he did not attempt to
confirm the running of a road race as alleged by another employee; /11/
he failed to confront Mr. Ruoff with the allegation; and he failed to
take direct action under the provision on sick leave in the collective
bargaining agreement. On the other hand, Mr. Ruoff communicated to him
his denial of an abuse of sick leave and he pointed out his good sick
leave record to Mr. Henderson. Finally, Mr. Henderson failed even to
mention sick leave to Mr. Ruoff during his explanation of why he was
imposing the restriction on swapping. I conclude that justification of
the restriction on the basis of an abuse of sick leave, under the
circumstances of this case, is pretextual.
Another justification for the restriction was that it was becoming
increasingly more difficult for Mr. Henderson to evaluate Mr. Ruoff's
day-to-day performance. However, Mr. Henderson had failed even to
mention this concern four months earlier during his last evaluation of
Mr. Ruoff. Mr. Ruoff had been swapping extensively for the entire year
covered by that evaluation. Significantly, Mr. Henderson voiced no
concern over day-to-day evaluation of those other employees under his
supervision who also swap extensively. Since Mr. Henderson swaps his
own midnight shifts, he apparently concedes that at least one-fifth of
the team's working hours need not be evaluated in person. I conclude
that justification of the restriction on the basis of a need for greater
day-to-day performance evaluation, under the circumstances of this case,
is pretextual.
Finally, the justification was offered that excessive swapping
resulted in missing too many team briefings and that that was
detrimental to the "crew concept". A definition of the "crew concept"
as far as the record in this case is concerned has been as elusive as
the Holy Grail. It appears to be intended as something more than a mere
"esprit de corps" but something less than an integrated operational unit
with defined individual functions. Given the fact that a member of the
"crew" does not have to give reasons for shift swapping and that
personal, social, athletic or whimsical concerns may motivate a shift
swap, the "crew concept" at this facility is either a figment of
someone's imagination or, at best, an idea whose time has come and gone.
It is apparent that Air Traffic Control Specialists of equal
qualifications are fungible. It is also apparent that missing a team
briefing is of no great moment. What is important is that the Air
Traffic Control Specialist familiarize himself with the information
disseminated at those briefings. There is no suggestion on this record
that Mr. Ruoff or any other controller on his team has not so
familiarized himself. I conclude that justification of the restriction
on the basis of need to preserve the "crew concept" is, under the
circumstances of this case, pretextual.
Affirmative evidence of animus may be seen from the severity and
timing of the restriction. Like a storm out of the Nor' east, the
restriction came quickly, with little or no warning, and with chilling
effect. Whereas the collective bargaining agreement speaks to
operational needs and overtime as standards for swap approvals, Mr.
Henderson sought to restrict Mr. Ruoff to a standard of "urgent or
emergency" need. And this without so much as counsel, caution, or
compromise. Other employees who swap forty percent of the time and miss
half of the team briefings have gone totally unrestricted. Two of Mr.
Henderson's superiors told him that the "urgent or emergency" standard
was too severe and that it would have to be rescinded. This was no
surprise to Mr. Henderson for he had been overruled on two previous
occasions when he attempted to impose similar swapping restrictions at
other facilities. In other words, he fully appreciated the severity of
his actions in this case. The check of the leave book came two days
after Mr. Henderson was interviewed by an Authority agent in regard to
an unfair labor practice charge by Mr. Ruoff against Mr. Henderson. Two
days after Mr. Ruoff met with the Authority agent, he received a note
from Mr. Henderson stating that no more swaps would be approved until
they met. Two days after the note, the "urgent or emergency" standard
was put into effect. One week later, Mr. Henderson wrote his memorandum
to the file requesting approval of that standard. He was told that the
standard was too severe and that he would have to rescind it. Four days
after writing the memorandum Mr. Henderson confronted the union official
talking to Mr. Ruoff at his work station and told him, in no uncertain
term, what to do with his union material.
Standing alone, none of these facts conclusively demonstrates animus.
However, when one considers all of the factors just discussed in light
of my conclusion that the proffered justifications for the restriction
were merely pretexts, the compelling inference is, and I find, that the
true motivating force behind the restriction was the protected activity
engaged in by Mr. Ruoff.
Having found that the General Counsel has met its burden of showing
that the protected conduct was the motivating factor in the decision to
restrict Mr. Ruoff's swapping rights, I conclude that this is a "pretext
case" and not a "dual motive case" which would allow Respondent to come
forward and show by a preponderance of the evidence that it would have
imposed the restriction even in the absence of the protected activity.
/12/ Even if I were to conclude otherwise, on this record, Respondent
would not carry that burden. Mr. Ruoff's conduct has been substantially
similar to that of other employees who have not had their swapping so
much as questioned. While Respondent has introduced some evidence
bearing on the facially lawful justifications of sick leave abuse,
personnel evaluation needs, and impact on air safety, I conclude that
such evidence has either been rebutted or, as discussed above, has been
shown merely to amount to a pretext for the action taken against Mr.
Ruoff. No abuse of sick leave was proven and there was no evidence
which would justify a finding that Mr. Ruoff could not be evaluated any
less easily than he had been just the previous February. While the
"crew concept" may have had, or may have in the future, some
demonstrable significance to the working conditions at Respondent's
facility, it should not be used as a sword of Damocles, suspended by the
thin hair of caprice over the heads of employees for the purpose of
discouraging their free exercise of protected activity.
Having found that employee Andrew Ruoff was engaged in protected
activity, that Respondent had knowledge of that protected activity, and
that Andrew Ruoff has suffered disparate treatment as a result of his
protected activity, and having concluded therefore that Respondent
violated Sections 7116(a)(1) and (4) of the Statute, I recommend that
the Authority issue the following order:
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
2423.29(b)(1), the Authority hereby orders that the Department of
Transportation, Federal Aviation Administration, Boston Air Route
Traffic Control Center, Nashua, New Hampshire, shall:
1. Cease and desist from:
(a) Discriminating against Mr. Andrew Ruoff by restricting his
right to make voluntary changes in shift assignments and regular
days off because an unfair labor practice charge was filed on his
behalf and because he gave information to the Authority in support
of that charge.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Post at its facilities at Nashua, New Hampshire, copies of
the attached notice marked "Appendix" on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Boston Air Route Traffic Control
Center Facility Chief and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to ensure that the
notices are not altered, defaced or covered by any other material.
(b) Remove the order regarding the approval of swap requests
submitted by Andrew Ruoff which was placed in the Night Order Book
by William Henderson.
(c) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this Order as to what steps have
been taken to comply with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: March 3, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discriminate against Mr. Andrew Ruoff by restricting his
right to make voluntary changes in shift assignments and regular days
off because an unfair labor practice charge was filed on his behalf and
because he gave information to the Authority in support of that charge.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce our employees in the exercise of their rights assured by the
Statute.
(Agency or Activity)
Dated: . . . By: (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region I,
441 Stuart Street, 8th Floor, Boston, Massachusetts 02116
--------------- FOOTNOTES$ ---------------
/1/ While the Authority, after the Judge issued his decision in this
case, revoked the exclusive recognition status of the Charging Party
(PATCO) and thereafter dismissed certain complaints involving the
statutory rights and responsibilities of PATCO as a labor organization
as moot on the basis that any decision rendered in such cases could not
have any practical legal effect (see, e.g., Professional Air Traffic
Controllers Organization, AFL-CIO, Local 216, 11 FLRA No. 16 (1983);
United States Department of Transportation, Federal Aviation
Administration, Southwest Region, 11 FLRA No. 18 (1983)), the Authority
concludes that the instant case has not been rendered moot. Thus, in
contrast to the above-cited cases, the statutory rights of individual
employees are involved herein, and an order requiring the Respondent
(FAA) to take appropriate action in order to remedy the unfair labor
practices found to have been committed against the employees' statutory
rights would have practical legal effect and is deemed necessary to
effectuate the purposes and policies of the Statute.
/2/ In concluding that the Respondent unlawfully discriminated
against employee Andrew Ruoff as a result of his having engaged in
protected activity under the Statute, and that the reasons asserted by
the Respondent for such conduct were mere pretexts, the Judge relied on
private sector cases. The Authority has applied the same principles in
reaching such results under the Statute. See, e.g., Internal Revenue
Service, Boston District Office, Boston, Massachusetts and Internal
Revenue Service, Andover Service Center, Andover, Massachusetts, 5 FLRA
No. 96 (1981); United States Marine Corps, Marine Corps Logistics Base,
Barstow, California, 5 FLRA No. 97 (1981).
/3/ Although Mr. Henderson was not sure if the agent mentioned that
he was going to speak to Mr. Ruoff about the matters under
investigation, there can be no doubt that after his conversation with
the agent, Mr. Henderson would assume that the agent would take a
statement from the person upon whose behalf the charge was made.
/4/ Mr. Henderson first testified that he didn't recall for what
reason he looked back through the leave book. He then stated, "I became
suspicious or I had reason to believe that he was not on sick leave."
Later he referred to an unidentified person who remarked at the watch
desk while Mr. Henderson was at the book, "Oh, five days in a row.",
referring to the consecutive days Mr. Rouff had been off. Mr. Henderson
did not know how this unidentified person had any knowledge of Mr.
Rouff's leave record. It was not until after he had closed the leave
book that Mr. Henderson was approached by an employee, later identified
as Mr. Kawaski, who told Mr. Henderson that he had seen Mr. Ruoff
dressed in running attire with his wife at a road race in Mason, New
Hampshire. Later evidence conclusively showed that the race in Mason
did not take place during this five day period. I conclude that Mr.
Henderson's testimony itself does not reveal the motive for his perusal
of the leave book before any conversations he may have had with others
at the facility.
/5/ The night order book is a communication medium between
supervisors.
/6/ In September, 1980, Mr. Ruoff left Mr. Henderson's team and he is
no longer under the same swap restrictions.
/7/ Mr. Henderson originally testified that he did communicate the
recission to Mr. Ruoff. However, after being confronted with his
affidavit, Mr. Henderson changed his testimony.
/8/ Mr. Henderson denied making this statement but he did acknowledge
telling Cumings to leave the area. I credit the testimony of Messrs.
Cumings and Ruoff who both heard the statement including the
scatological reference.
At the hearing, and in a footnote to the brief, the General Counsel
moved to amend the complaint to allege a violation of the Statute
arising out of this incident. The motion was denied at the hearing and
no persuasive argument has been raised in the brief which would warrant
a reversal of that ruling.
/9/ See e.g., NLRB v. Montgomery Ward & Co., Inc., 157 F.2d 486, 491,
(8th Cir. 1946).
/10/ 362 F.2d at 470, n. 15:
"Judges are apt to be naif, simple-minded men, and they need
something of Mephistopheles." (Holmes, Law and Court, in Speeches,
102 (1913); "Credulity is not esteemed a paramount virtue of the
judicial mind." (Huston, J., in Rankin v. Jauman, 1895, 4 Idaho
394, 401, 39 P. 1111, 1113.)
/11/ The failure to call this employee as a witness further
undermines any assertion that the information about a road race
(determined by other evidence of record to be false) motivated Mr.
Henderson's later actions.
/12/ See, Wright Line, A Division of Wright Line, Inc., 251 NLRB No.
150 (1980), 105 LRRM 1169 (wherein the NLRB adopted the causation test
enunciated by the United States Supreme Court in Mt. Healthy City School
Dist. v. Doyle, 249 U.S. 274 (1977), and abandoned use of the term "in
part" in determining the relationship, if any, between employer action
and protected employee conduct.