17:0773(107)CA - Navy, Portsmouth Naval Shipyard, Portsmouth, NH and Dennis R. Lacroix -- 1985 FLRAdec CA



[ 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. LeBa