[ v21 p53 ]
21:0053(12)CA
The decision of the Authority follows:
21 FLRA No. 12
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
Respondent
and
DENNIS R. LACROIX, An Individual
Charging Party
Case No. 1-CA-40151
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 in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision and the
Respondent filed an opposition to the General Counsel's exceptions.
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 conclusion and recommended Order. In adopting the Judge's
conclusion that the complaint should be dismissed herein, the Authority
notes particularly that the record evidence does not establish that the
employee herein was discriminated against or interfered with because he
filed grievances or engaged in other protected activity. More
specifically, the Authority finds, as did the Judge, that there was no
evidence of union animus on the part of the supervisor herein; that the
record evidence did not show any relationship between the grievances
filed by the employee herein and his allegedly lowered 1983 performance
appraisal rating; and that no correlation was shown between the
employee's complaint to his union representative concerning the work
assignments given to certain employees and his 1983 performance rating.
Accordingly, the Authority concludes that the General counsel has failed
to meet the burden of proving that the Respondent unlawfully
discriminated against the employee, and the complaint alleging a
violating of section 7116(a)(1) and (2) of the Statute shall be
dismissed. /1/
ORDER
IT IS ORDERED that the complaint in Case No. 1-CA-40151 by, and it
hereby is, dismissed.
Issued, Washington, D.C., March 13, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In reaching such conclusion, the Authority does not rely on the
Judge's suggestion on page 5 of the decision that the subject employee's
complaint about the work assignments of certain employees, in the
circumstances of this case, was not protected activity or on his
statements on pages 5 and 6 regarding a "mixed motive" analysis.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL
SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE
Respondent
and
DENNIS R. LACROIX, An Individual
Charging Party
Peter F. Dow, Esquire For the General Counsel
Richard H. Greenberg, Esquire For the Respondent
Before: ELI NASH, Jr. Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on May 29, 1984
by the Regional Director for the Federal Labor Relations Authority,
Boston, Massachusetts Region, a hearing was held before the undersigned
on July 24, 1984.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It resulted from charges
originally filed on February 21, 1984 and amended on May 18, 1984 by
Dennis R. Lacroix (herein called Mr. Lacroix) against the Department of
the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, (herein
called Respondent).
The Complaint alleges that the agency violated sections 7116(a)(1)
and (2) of the Statute by considering the protected Union activity of
Mr. Lacroix in preparing his annual performance appraisal for calendar
year 1983 and by preparing and issuing a lowered performance appraisal
for calendar year 1983 because of Mr. Lacroix's protected Union
activity.
Respondent's Answer denied the commission of any unfair labor
practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
On Monday, April 4, 1983 Dennis R. Lacroix was involuntarily
transferred to the crew of supervisor James Knowles. /1/ Mr. Knowles,
credibly testified that he did not know the reason for Mr. Lacroix's
transfer to his crew. In any event, the involuntarily transfer resulted
from an unfair labor practice charge being filed alleging discrimination
by Mr. Lacroix's previous supervisor. The transfer was subsequently
found by the Authority in Department of the Navy, Portsmouth Naval
Shipyard Portsmouth, New Hampshire, 17 FLRA No. 107 (1985), to be m
violation of the Statute. Mr. Lacroix continued to work under Mr.
Knowles' supervision until sometime in March 1984.
During 1983, while he worked on the crew supervised by Knowles', Mr.
Lacroix was told by both Knowles and General Foreman Joseph Freda that
he was doing a good jobs there were no problems with the quantity or
quality of his work, and they were both satisfied with his work. These
same things were told Mr. Lacroix by his Foreman and General Foreman
regarding his performance in 1982, when Ladroix received a "highly
satisfactory" overall summary rating. Without question Mr. Lacroix was
safety conscious and indeed he voiced a number of complaints and filed
several grievances. the grievances concerned environmental differential
or Code 27 pay for exposure to asbestos while working aboard ship and a
counselling session on or around August 18, 1983.
During his period as temporary foreman, Mr. Knowles supervised
between ten and twelve individual employees in the time frame in which
Lacroix worked under his supervision. Of the ten or twelve employees
who Knowles supervised he had the opportunity to evaluate and prepare
appraisals on only seven of those employees. The reason he was not
allowed to evaluate four of the employees was because of shift transfers
prior to evaluations in several instances and at least one employee was
an apprentice, who was evaluated under a somewhat different system. Mr.
Knowles testified that he would probably have rated three of the four
"right in the satisfactory range." A breakdown of the seven he actually
supervised shows one outstanding; four highly satisfactory and two
satisfactory.
The two satisfactory ratings vent to Mr. Lacroix and Mr. Wood. of
considerable note is a chart prepared by the General Counsel which shows
appraisals for the seven employees evaluated by Mr. Knowles in 1983 and
a comparison with the 1982 ratings of each employee:
Ratings of Each Employee (CHART OMITTED)
This chart shows that Mr. Knowles did not rate most of those
employees the same as their 1982 supervisor. In fact when the
evaluations are compared there is a wide discrepancy between what
previous supervisors and Mr. Knowles felt about many of these employees.
One reason for such disparity is probably that new and different
standards of evaluation were applied.
During mid-August 1983, Mr. Lacroix and Mr. Wood were assigned a high
pressure air line job on the 605 boat. According to Mr. Knowles, who at
that time was acting as General Foreman, he sent Mr. Lacroix to Building
299 to obtain some fittings needed to connect certain hoses and he sent
Mr. Wood to the shop to attempt to get some from the supervisor in the
shop.
Mr. Knowles testified that some 15-20 minutes went by and that he was
called by Mr. Wood and told, "They wouldn't allow us to have any."
Later, Mr. Knowles went to Building 299, and asked for the fittings.
The tool room tenant gave him two fittings. Mr. Knowles, states that he
asked the tool room tenant, "Has anybody been in since suppertime to see
you?" And the tool room tenant responded a "Since supper?" And said,
"Very seldom do we get asked for these anymore, because we never have
them in, we're always out of stock, it seems like." Upon returning to
the work area, Mr. Knowles testified that he found Lacroix, Wood and a
welder standing around talking. two were counselled concerning this
incident and a grievance concerning their counselling was filed by
Steward Joseph R. Luvisi on October 7, 1983.
The grievance was pursued vigorously by Luvisi through several steps,
but its revocation was finally denied on January 20, 1984. The General
Counsel points out that Mr. Wood's 1983 appraisal was also lowered.
However, to my knowledge there is no allegation that Mr. Wood was
discriminated against because of his participation in this incident or
because he filed a grievance or participated in protected activity.
Interestingly, Luvisi and another steward, Robert Liberty, had
nothing but praise for Mr. Knowles' handling of labor relations matters.
Luvisi who handled several of Mr. Lacroix's complaints stated, "I've
never had any problem at all with Jimmy Knowles. Every time I've talked
to him about any kind of concern, whether it be a safety problem or any
kind of labor management relations, he's always been very receptive."
Mr. Liberty, who was at one time a chief steward also testified that
Mr. Knowles relationship with him as steward and chief steward was "very
good." Mr. Liberty also testified that while he was phasing out his
union activities during the time he worked for Mr. Knowles, he had filed
one grievance on behalf of Mr. Lacroix. Voluntarily, Mr. Liberty added
that Mr. Knowles was the type supervisor who believed in 8 hours work
for 8 hours pay.
Aside from the one counselling session mentioned above Mr. Knowles
considered Mr. Lacroix's work satisfactory. Mr. Knowles testified in
detail concerning his 1983 rating of employees, including Mr. Lacroix.
The testimony reveals that Mr. Knowles never looked at any previous
ratings; that his comparison with higher rated employees was just a
matter of perception; that he took the attitude of attacking the job
and doing it, not trying to skirt the issue of the employees into
consideration. In sum, he felt that Mr. Lacroix, when working on more
complex jobs had time delays and problems which were not outside the
realm of satisfactory work, but was in substance clearly not highly
satisfactory. On the other hand he felt more comfortable assigning more
complex work to other employees. Mr. Knowles' assignments to employees
like' Hallam and Hannigan was the subject of complaints. Mr. Knowles no
doubt had a great deal of confidence in this duo.
With regard to the grievances filed by Mr. Lacroix concerning Code 27
pay the record clearly demonstrates that contrary to the General
C0unse1,s view, Mr. Knowles supported those grievances. He not only
approved one, but three requests for environmental differential pay for
Mr. Lacroix and, in fact the grievances were submitted with his
signature. The record shows that grievances were filed on September 26,
1983 and February 1 and 14, 1984. It is noted that at least one and
probably two of these grievances were filed after Mr. Lacroix filed
after the 1983 appraisal was prepared and presented to Lacroix the
latter two grievances. The position that Mr. Knowles took on these
grievances was contrary to the ultimate management position that
environmental differential pay was not warranted and there is no doubt
that he told Luvisi that he had gotten his "ass chewed." Consequently,
one of the grievances resulted in arbitration Unquestionably
environmental differential pay for asbestos exposure was a controversial
area, as the record shows, and it no doubt stimulated much concern as
shown by the congressional and outside interests in the matter. Taken
in proper context, Mr. Knowles' got his "ass chewed" because he took a
position, which was not the management position and not because he had
filed for Code 27 pay for Mr. Lacroix. I see no connection between
these grievances and Mr. Lacroix's allegedly lowered rating.
Finally, I find no correlation between Mr. Lacroix's complaining
about Hallam and Hannigan working together and his rating.
Notwithstanding the fact that Mr. Lacroix complained long and hard
concerning this assignment, so did others. Others who were rated by Mr.
Knowles in the highly satisfactory range. Moreover, assignment of
employees, as employees, is not within the purview of another employee
so Mr. Lacroix's complaints about those assignments are not, in my view,
protected activity.
Discussion and Conclusions
The General Counsel asserts that it made a prima facie showing that
Mr. Lacroix had engaged in protected activity and that the protected
conduct was a motivating factor in reducing Lacroix's 1983 rating to
"satisfactory." Notwithstanding its contention that a prima facie case
was made, the General Counsel urges reconsideration of the Authority's
application of its established standards in mixed-motive cases. /2/
On the other side of the coin, the Respondent maintains that the
rating given Mr. Lacroix had no negative impact on his career
opportunities; that notwithstanding a highly satisfactoy rating in the
preceding year, Mr. Knowles' evaluation was higher than the evaluation
Mr. Lacroix received two years before; /3/ there was no anti-union
animus involved; and, finally Mr. Knowles' standards were higher than
the supervisor who had rated Mr. Lacroix the previous year.
Having established its prima facie case under IRS the burden shifted
to the Respondent to establish by a preponderance of the evidence
basically, that Mr. Lacroix's appraisal for 1983 would have been the
same even in the absence of his protected activity.
Respondent presented evidence which clearly met its burden of proof.
While it is not clear what adverse impact would result from Mr.
Lacroix's receiving only a satisfactory rating, such ratings could, but
it is nor shown how in this record, impair Mr. Lacroix' s career.
Furthermore, ratings are considered in seniority for reductions-in-force
under present regulations and could indeed impact of Mr. Lacroix's
federal job retention rights. The above is merely speculation, but show
that there may indeed be some impact despite Respondent's position to
the contrary. More importantly, however, Mr. Knowles was a new
Temporary Foreman rating employees for the first time; Mr. Knowles was
rating employees under different criteria than they had been previously
rated; Mr. Knowles did not rate most of the employees he evaluated for
1983 the same as their supervisor had the previous rating year; Mr.
Knowles gave sufficient legitimate business reasons which satisfy the
undersigned that the appraisal, while it might have been based on
interpersonal relations, was not motivated by Mr. Lacroix's
participation in any protected Union activity. Even more important is
the fact that there is no record evidence to establish that Mr. Lacroix
was, during the period of time in question, more than a satisfactory
employee. In fact, the 1983 appraisal is consistent with the evaluation
Mr. Lacroix received two years earlier and runs counter to a finding
that Mr. Lacroix was more than a satisfactory employee. Thus, he was
rated satisfactory in two of the three rating periods shown on the
record. Inasmuch as the record clearly supports a finding that the 1983
evaluation was based on Mr. Knowles' assessment of Mr. Lacroix as a
satisfactory employee it is concluded that the appraisal should not be
disturbed by finding a violation of section 7116(a)(2) of the Statute.
The General Counsel also suggests that Respondent violated section
7116(a) (1) of the Statute by considering the protected activity of Mr.
Lacroix in preparing his annual performance appraisal for 1983.
Respondent counters that there is a complete lack of anti-union animus.
In fact, it argues that there are no statements or conduct which would
interfere with or coerce any employees under the Statute. I agree.
A review of the record shows that Mr. Knowles, while a Temporary
Foreman seemingly had excellent rapport with the Union. It reveals
further that he supported Mr. Lacroix rather than opposed him in his
quest for Code 27 pay; that he counselled Mr. Lacroix and Mr. Wood s
for what appear to be legitimate concerns; and, that his conduct
evidenced no animus whatsoever upon which to base a section 7116(a)(1)
violation. Moreover, it was not established that Mr. Knowles considered
Mr. Lacroixi's protected union activity in preparing the 1983 appraisal.
ORDER
IT IS HEREBY ORDERED, that the Complaint in Case No. 1-CA-40151 be a
and it hereby is, dismissed.
(s)---
ELI NASH, JR.
Administrative Law Judge
Dated: August 12, 1985
Washington, DC
--------------- FOOTNOTES$ ---------------
/1/ Although Knowles was acting as a Temporary Foreman, he was at the
time of the hearing a WG-10 pipefitters having been returned to the
bargaining unit after serving a two year period as Temporary Foreman.
/2/ See, Internal Revenue Service, Washington, D.C., 6 FLRA No. 23
(1981); See also, Office of Program Operations, Field Operations,
Social Security Administration, San Francisco Region, 9 FLRA 73 (1982),
American Federation of Government Employees v. Federal Labor Relations
Authority, 716 F.2d 47 (1983). The General Counsel does not
thoughtlessly suggest such an approach. However, subsequent to the D.C.
Circuit decision, the Authority has reiterated its application of the
IRS standard to mixed motive cases. There is validity in the General
Counsel's overall argument that the Authority in essence, may be
unnecessarily denying itself the power to act in future cases where
union activities are considered in the selection process but are not
determinative and where no independent violations of the Statute are
found. Notwithstanding such possible denial, the Authority has clearly
adopted Mt. Healthy City School District Board of Education v. Doyle,
529 U.S. 274 (1977) as the test for establishing a section 7116(a)(2)
violation under the Statute. Based on my overall findings in this
matter it is not necessary, in my opinion, to recommend to the Authority
based on the instant record any change in that approach. Accordingly,
the General Counsel' s argument is rejected.
/3/ Department of the Air Force, Scott Air Force Base, 14 FLRA No. 54
(1984).