11:0318(67)CA - Transportation, FAA, Boston Air Route Traffic Control Center, Nashua, NH and PATCO Local 202 -- 1983 FLRAdec CA



[ 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 Judge's Decision were subsequently withdrawn.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, an