[ v17 p773 ]
17:0773(107)CA
The decision of the Authority follows:
17 FLRA No. 107
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
Respondent
and
DENNIS R. LACROIX, Individual
Charging Party
Case No. 1-CA-30188
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 be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed an
opposition thereto.
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 and conclusions, /1/ and his recommended Order as
modified. /2/
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 Portsmouth Naval Shipyard, Portsmouth,
New Hampshire shall:
1. Cease and desist from:
(a) Transferring Dennis R. Lacroix because he utilized his statutory
rights to seek union assistance with respect to an incipient grievance
concerning working conditions.
(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
purposes and policies of the Statute:
(a) Reinstate Dennis R. Lacroix to the work crew that he had been
assigned to on April 1, 1983, without prejudice to any seniority or
other privileges he would have enjoyed but for his discriminatory
transfer effective April 4, 1983.
(b) Post at the Portsmouth Naval Shipyard, Portsmouth, 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 Commander, or a 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, 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., May 7, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 transfer Dennis R. Lacroix because he utilized his statutory
rights to seek union assistance with respect to an incipient grievance
concerning working conditions. 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 reinstate Dennis R. Lacroix to the work crew
that he had been assigned to on April 1, 1983, without prejudice to any
seniority or other privileges he would have enjoyed but for his
discriminatory transfer effective April 4, 1983.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, 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 --------------------
Case No. 1-CA-30188
Steven Sharfstein, Esquire
For the Respondent
Daniel J. Sutton, Esquire
For the General Counsel
Before: BURTON S. STERNBURG, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5
U.S.C.Section 7101 et seq. and the Rules and Regulations issued
thereunder.
Pursuant to an amended charge first filed on April 29, 1983, by
Dennis R. Lacroix, an individual, a Complaint and Notice of Hearing was
issued on July 26, 1983, by the Acting Regional Director for Region I,
Federal Labor Relations Authority, Boston, Massachusetts. The
Complaint, which was amended at the hearing without objection, alleges
that the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth,
New Hampshire (hereinafter called the Respondent or Shipyard) violated
Sections 7116(a)(1) and (2) of the Federal Service Labor-Management
Relations Statute (hereinafter called the Statute) by virtue of its
action in transferring Mr. Dennis Lacroix from one crew to another
because of his participation in activities protected by Section 7102 of
the Statute. Alternatively, the amended complaint alleges that
Respondent violated Section 7116(a)(1) of the Statute by virtue of its
action in considering the protected activity of Mr. Lacroix "in
determining to transfer Mr. Lacroix from one crew to another crew."
A hearing was held in the captioned matter on September 27, 1983, in
Portsmouth, New Hampshire. All parties were afforded the full
opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues involved herein. The General
Counsel and the Respondent submitted post-hearing briefs on December 5,
1983, which have been duly considered. /3/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
Mr. Lacroix, the charging party herein, has been employed for the
past 5 or 6 years at the Portsmouth Naval Shipyard as a pipefitter. Mr.
Lacroix is included in the bargaining unit for which the Portsmouth
Federal Employees Metal Trades Council (hereinafter called the Union) is
the exclusive bargaining representative. For about 4 years prior to
April 4, 1983, when he was involuntarily transferred to another crew,
Mr. Lacroix was assigned to a crew supervised by Foreman Reginald
LeBarge.
In his latest performance appraisal covering the year 1982, Mr.
Lacroix was rated by Mr. LeBarge as highly satisfactory, the highest
level possible, in all job "performance elements." In this latter
connection Mr. LeBarge testified that he "had no problem with his, (Mr.
Lacroix's) work."
According to Mr. LeBarge, his main complaint with Mr. Lacroix
concerned Mr. Lacroix's actions in making noise at the start of the
shift which interfered with Mr. LeBarge's job assignments which were,
among other things, predicated upon ongoing telephone conversations from
departing supervisors on the earlier shift concerning unfinished work to
be performed by Mr. LeBarge's crew.
According to Mr. LeBarge, he had spoken to Mr. Lacroix many times
about his actions in being too loud and hollering on the job. Further,
according to Mr. LeBarge, he had informed Mr. Lacroix that because of
his noise and the problems that it was causing him, he (Mr. LeBarge),
was going to find him another foreman. Mr. Lacroix admits that Mr.
LeBarge had complained to him about his actions in making noise and had
stated that he was going to seek another foreman for him, Mr. Lacroix.
Mr. Lacroix places the conversation and/or statement concerning his
possible transfer to another foreman as occurring about 1 1/2 years
prior to April 1983.
According to Mr. LeBarge, prior to the events underlying the instant
complaint, the only time he actually attempted to effect a transfer for
Mr. Lacroix to another foreman occurred some 1 1/2 years prior to April
1983 when he spoke to someone in Management and requested that Mr.
Lacroix not be returned to his crew following the completion of a
special project that Mr. Lacroix had been assigned to. Admittedly, no
action was taken on this latter request and Mr. Lacroix returned to Mr.
LeBarge's crew where he remained until the incidents underlying the
instant complaint occurred.
During March of 1983, Respondent instituted a new work permit
procedure which resulted in a substantial increase in Mr. LeBarge's
paperwork. /4/ Subsequently, when the additional paperwork became
extremely burdensome, Mr. LeBarge requested help in the form of a
"snapper." /5/ Pursuant to Mr. LeBarge's request, Respondent assigned
Mr. Jerry Letelier to his (Mr. LeBarge's) crew as a "snapper."
On Monday, March 28, 1983, during a regular weekly safety meeting Mr.
LeBarge's crew, Mr. Lacroix questioned what Mr. Letelier's future
assignments would be and commented that if LeBarge's workload had
increased to the point that it was necessary to employ a "snapper,"
LeBarge should speak to his supervisors and request a more even
distribution of the Shipyard's work. LeBarge responded that he had the
right to assign employees as he saw fit and, in response to a further
question from Mr. Lacroix, stated that there was no medical reason for
Mr. Letelier's assignment as a "snapper." Whereupon, Mr. Lacroix stated
that he did not think that it was right for Mr. LeBarge to use Mr.
Letelier as a "snapper" and that he wanted a union representative
present. According to Mr. Lacroix, while Mr. LeBarge did not respond to
his request for union representation, he appeared to be perturbed by the
request. At this point the meeting ended and the employees returned to
work.
Following the meeting, Mr. Lacroix discussed the matter with Mr.
Roger Normand, the Union's Chief Steward on the P.M. shift, and asked
him to speak to Mr. LeBarge about his practice of utilizing a "snapper."
Whereupon, Mr. Normand made contact with Mr. LeBarge and asked him to
come over to the welding area for purposes of discussing a problem with
Mr. Lacroix.
Mr. LeBarge then accompanied Mr. Normand back to the welding area
where a discussion ensued between Mr. LeBarge, Mr. Normand and Mr.
Lacroix. According to the credited testimony of Mr. Lacroix and Mr.
Normand, Mr. Normand opened the discussion by explaining that Mr.
Lacroix had a complaint or potential grievance about the assignment of
Mr. Letelier to the crew as a "snapper." Thereafter, Mr. Lacroix chimed
in and gave his reasons why he thought the use of a "snapper" was not
justified. Whereupon, Mr. LeBarge responded and attempted to justify
the use of Mr. Letelier as a "snapper," became irritated and finally
informed Mr. Lacroix that he was a trouble maker and that it was time
for the two to part. Further, according to Mr. Normand and Mr. Lacroix,
Mr. LeBarge became red in the face and began pointing or waving his
arms. The meeting ended shortly thereafter without anything being
accomplished. /6/
The next day Mr. LeBarge contacted his immediate supervisor, General
Foreman Roland Provencher, and asked him to transfer Mr. Lacroix to
another crew. Inasmuch as Mr. Provencher, at the time of the request,
was looking for employees to transfer to a crew supervised by Foreman
Jimmy Knowles he granted Mr. LeBarge's request with little or no
discussion. Thus, Mr. Provencher testified that he did not inquire into
LeBarge's reasons for requesting the transfer of Mr. Lacroix because
LeBarge was upset, the transfer would fulfill Foreman Knowles' staffing
needs and alleviate problems on both crews. Further, according to Mr.
Provencher the only reason he effected the transfer was because of Mr.
LeBarge's request. Finally, Mr. Provencher also testified that had Mr.
LeBarge requested the transfer of another employee he "probably" would
have transferred such employee rather than Mr. Lacroix.
On April 1, 1983, Mr. LeBarge informed Mr. Lacroix that effective
Monday, April 4, 1983, he would be assigned to Mr. Knowles' crew. Mr.
Lacroix protested the transfer and informed Mr. LeBarge that he would be
filing charges over the involuntary transfer. Whereupon Mr. LeBarge
informed Mr. Lacroix that he did not care what Mr. Lacroix did, that he
was fed up with Mr. Lacroix's actions, that they had been together long
enough and that it was time for them to part. Mr. LeBarge also informed
Mr. Lacroix that he would make an effort to make up any overtime that he
might lose because of the transfer. Mr. Lacroix told Mr. LeBarge that
he could not insure him any overtime since the contract provided that
overtime opportunities on a particular boat were to be first offered to
the employees working on the particular boat. /7/
On Monday, April 4, 1983, Mr. Lacroix was involuntarily transferred
from Mr. LeBarge's crew on Boat 605 to Mr. Knowles' crew which was
working on Boat 676.
With respect to the reasons for the transfer of Mr. Lacroix, Mr.
LeBarge testified that he disliked Mr. Lacroix because of his actions in
continually making noise at the start of the shift. He further
testified that the Union's role in the March 28th meeting did not play a
"hell of a lot" in his decision to transfer Mr. Lacroix. Finally, he
testified that he had been trying for a year and one half to transfer
Mr. Lacroix and the Union's presence "didn't matter that much." /8/
Discussion and Conclusions
The General Counsel takes the position that Respondent's action in
transferring Mr. Lacroix was violative of Sections 7116(a)(1) and (2) of
the Statute since it was predicated upon Mr. Lacroix complaints made at
the meeting set up and attended by Chief Union Steward Normand.
Further, according to the General Counsel the absence of any showing
that Mr. Lacroix's transfer resulted in a loss of pay or other tangible
benefits does not preclude a Section 7116(a)(1) finding. Finally, the
General Counsel takes the position that in the event it is concluded
that Mr. Lacroix would have been transferred "in the absence of his
protected activity" a separate and independent 7116(a)(1) finding is in
order since the record establishes that Respondent "considered Mr.
Lacroix's protected activity in deciding to transfer him" and thus
conveyed to his fellow employees the danger of participating in
protected activities.
Respondent takes the position that Mr. Lacroix's transfer was
motivated solely by the long standing feud between Mr. Lacroix and Mr.
LeBarge and that the March 28, 1983 meeting set up and attended by Mr.
Normand played no part in the decision to transfer Mr. Lacroix.
Respondent further argues that a Section 7116(a)(2) finding is not in
order since Mr. Lacroix's transfer did not result in any loss of pay or
other tangible benefits. Finally, Respondent takes the position that
even assuming that the transfer was based on a "mixed motive" within the
meaning of Internal Revenue Service v. NTEU, 6 FLRA No. 23, a Section
7116(a)(2) finding is not in order since the evidence supports the
conclusion that Mr. Lacroix would have been transferred in any event
because of his long standing feud with Mr. LeBarge.
Contrary to the contention of the Respondent, I cannot conclude that
Mr. Lacroix's transfer was based solely on his long standing feud with
Mr. LeBarge and that Mr. Lacroix's actions during the March 28, 1983
meeting played no part in Mr. LeBarge's decision to seek his transfer.
/9/ Rather, I find that Mr. Lacroix's actions at the March 28, 1983
meeting was the proverbial "straw that broke the camel's back" and
prompted Mr. LeBarge to actively seek his transfer.
In reaching the above conclusion, I note that Mr. LeBarge, save for
one feeble attempt approximately 1 1/2 years before to transfer Mr.
Lacroix, had tolerated Mr. Lacroix, whom he admittedly hated, and had
made no active or sustained attempt to effect Mr. Lacroix's transfer
prior to his actions in questioning Mr. LeBarge's authority to utilize a
"snapper." Other than appearing perturbed, Mr. LeBarge made no
significant response to Mr. Lacroix's remarks at the earlier safety
meeting concerning the use by Mr. LeBarge of a "snapper." It was only
when the matter was pressed by Mr. Lacroix at the later meeting called
and attended by Union Steward Normand that Mr. LeBarge lost his cool,
raised his voice, and informed Mr. Lacroix that he was tired of his
"bullshit" and that it was time for them to split. The next morning,
true to his word, Mr. LeBarge requested and successfully obtained Mr.
Lacroix's transfer to another crew. In view of the foregoing it is
clear, and I so find, that had not Mr. Lacroix sought out Union Steward
Normand and prevailed upon him to call the meeting wherein the matter of
the use of a "snapper" and the possible filing of a grievance based
thereon was discussed in heated terms by Mr. LeBarge and Mr. Lacroix,
Mr. LeBarge would have continued to unhappily tolerate Mr. Lacroix's
presence on his crew and would not have requested his, Mr. Lacroix's
transfer.
Based upon the above considerations and particularly the absence of
any showing that Mr. LeBarge had taken any action in the past year and
one half to effect the transfer of Mr. Lacroix, I further conclude that
the Respondent has failed to sustain the burden of proving by a
preponderance of the evidence that Mr. Lacroix would have been
transferred irrespective of his participation in activities protected by
the Statute. The mere showing that transfers between crews was not an
unusual circumstance, that Mr. LeBarge possessed a deep seated hatred
for Mr. Lacroix and that approximately one and one-half years earlier
Mr. LeBarge had unsuccessfully attempted to have Mr. Lacroix
transferred, falls short of establishing that a transfer of Mr. Lacroix
in the future was inevitable. Rather, Mr. LeBarge's inaction with
respect to a crewman whom he admittedly hated supports the conclusion
that but for Mr. Lacroix's participation in protected activities Mr.
LeBarge would have, albeit distastefully, continued to tolerate Mr.
Lacroix as a member of his crew.
Finally, in agreement with the General Counsel, I conclude that the
absence of any showing that Mr. Lacroix's transfer resulted in a loss of
pay or other tangible benefits does not preclude a Section 7116(a)(2)
finding. Section 7116(a)(2) of the Statute provides that it shall be an
unfair labor practice for an Agency to encourage or discourage
membership in a labor organization by discrimination in "conditions of
employment." Inasmuch as the existing relationships between co-workers
or fellow crew men, as the case herein, add to, or subtract from, an
enjoyable work environment, I find that a transfer to a new group of
co-workers or fellow crew men amounts to a change in a condition of
employment.
Having concluded that Respondent violated Sections 7116(a)(1) and (2)
of the Statute by virtue of its action in transferring Mr. Lacroix
because of his participation in activities protected by the Statute, it
is recommended that the Federal Labor Relations Authority adopt the
following order designed to effectuate the purposes and policies of the
Statute.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Transferring Dennis R. Lacroix or any other unit employees
because they utilized their Statutory rights to seek union
assistance with respect to an incipient grievance concerning
working conditions.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of their rights
assured by Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Reinstate Mr. Dennis R. Lacroix to the work crew that he
had been assigned to on April 1, 1983, without prejudice to any
seniority or other privileges he would have enjoyed but for his
discriminatory transfer effective April 4, 1983, and make him
whole for any loss of monies he may have suffered by reason of the
discriminatory transfer which was effective April 4, 1983.
(b) Post at the Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, copies of the attached Notice marked "Appendix" on
forms to be furnished by the Regional Director for Region I,
Federal Labor Relations Authority. Upon receipt of such forms
they shall be signed by the Commander of the Portsmouth Naval
Shipyard, 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 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) Notify the Regional Director for 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.
BURTON S. STERNBURG
Administrative Law Judge
Dated: January 24, 1984
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT transfer Dennis Lacroix or any other unit employee because
they utilized their Statutory rights to seek the assistance of the
Portsmouth Federal Employees Metal Trades Council, the exclusive
bargaining representative of our employees, with respect to an incipient
grievance concerning working conditions. 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 reinstate Mr. Dennis R. Lacroix to the work
crew that he had been assigned to on April 1, 1983, without prejudice to
any seniority or other privileges he would have enjoyed but for his
discriminatory transfer which was effective April 4, 1983, and make him
whole for any loss of monies he may have suffered by reason of such
discriminatory transfer.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for sixty
(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, whose address is: 441
Stuart Street, 9th Floor, Boston, Massachusetts 02116 and whose
telephone number is (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ In adopting the Judge's conclusion that the transfer of Lacroix
constituted a change in his conditions of employment, the Authority
notes particularly that, in addition to working on a different ship with
a different crew of employees, Lacroix came under the direction of a new
supervisor.
/2/ In view of the parties' stipulation of facts concerning the
impact of the transfer on employee Lacroix, contained in note 5 of the
Judge's Decision, the Authority has determined that the Judge's
recommended "make whole" remedy is not appropriate.
/3/ In the absence of any objection, the motion of the General
Counsel to correct the transcript is hereby granted.
/4/ Prior to March a single work permit covered a multitude of jobs
or tasks to be performed. The new work permit procedure required a
separate work permit for each and every job or tasks to be performed.
/5/ A snapper is a bargaining unit employee who assists a foreman in
accomplishing various administrative tasks such as processing work
permits and handing out job assignments.
/6/ Mr. LeBarge acknowledges the meeting, the fact that Mr. LaCroix
made it clear that he was dissatisfied with the fact that Mr. Letelier
was acting as a snapper; that "maybe" someone mentioned the possibility
of a grievance being filed, and that he "blew his stack a little" and
told Mr. Lacroix that he "was sick of his bullshit."
/7/ The parties stipulated that the transfer of Mr. Lacroix did not
change the duties performed by him, his rate of pay, his shift premium
differential or opportunity for overtime work.
/8/ In this latter context, Mr. LeBarge failed to cite or give any
specific details of any actions taken by him during the past year and
one-half to transfer Mr. Lacroix.
/9/ To the extent that Respondent may contend that the remarks made
by Mr. Lacroix at the March 28, 1983, meeting were unprotected, on the
basis of the Authority's decision in Internal Revenue Service v. NTEU,
supra, I find such contention to be without merit.