18:0055(9)CA - HHS, SSA, Baltimore, MD and AFGE -- 1985 FLRAdec CA



[ v18 p55 ]
18:0055(9)CA
The decision of the Authority follows:


 18 FLRA No. 9
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION, BALTIMORE, MARYLAND 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case No. 7-CA-40315
 
                            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.  The General Counsel and the Charging
 Party filed exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 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,
 conclusions and recommended Order.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 7-CA-40315 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 16, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Carl Clayton,
    For Respondent
 
    Daniel Minahan,
    For the General Counsel
 
    Federal Labor Relations Authority
    Reginald T. Huey,
    For the Charging Party
 
    Before:  ISABELLE R. CAPPELLO, Administrative Law Judge
 
                                 DECISION
 
    This is a proceeding under Title VII of the Civil Service Reform Act
 of 1978, Pub. L. No. 95-454, 95 Stat. 1192, 5 U.S.C. 7101 et seq.
 (1982), commonly known as the Federal Service Labor-Management Relations
 Statute, and hereinafter referred to as the Statute, and the rules and
 regulations issued thereunder and published at 5 CFR 2411 et seq.
 
    On March 23, 1984, the Charging Party filed an unfair labor practice
 charge against Respondent.  The charge, as amended on June 4, was
 investigated by Region VII of the Federal Labor Relations Authority
 (Authority);  and, on June 13, the complaint initiating this proceeding
 was filed.
 
    The complaint alleges that Respondent has violated Section 7116(a)(2)
 of the Statute by reassigning Donald Ruxlow, a head steward of Local
 1336 of the Charging Party because he engaged in activities protected by
 the Statute.  It further alleges that the reassignment of Mr. Ruxlow
 because of such activities violated Section 7116(a)(1) of the Statute.
 /1/
 
    On July 11, 1984, a hearing on the matter was held in Kansas City,
 Missouri.  The parties appeared, examined witnesses, and adduced
 documentary evidence.  Briefs were filed on August 10, by the
 Respondent, and on August 27, by the General Counsel, pursuant to an
 August 9 order extending the briefing time to August 27, on motion of
 Respondent received on August 8.
 
    Based upon the record made in this proceeding, my observation of the
 demeanor of the witnesses, and the briefs, I enter the following
 findings of fact and conclusions of law, and recommend the entry of the
 following order.
 
                             Findings of Fact
 
    1.  It is admitted that, at all times material herein, Respondent has
 been an agency and the Charging Party (AFGE) has been a labor
 organization, as those terms are defined in the Statute.  AFGE
 represents a consolidated, nation-wide bargaining unit of Respondent's
 non-professional employees.
 
    2.  At Kansas City, Missouri, Respondent operates the Mid-America
 Program Service Center (MAPSC).  AFGE is represented there by Local
 1336, whose jurisdiction also covers other components of Respondent in
 the area, including the Office of Hearings and Appeals (OHA) in Omaha,
 Nebraska.  Local 1336 represents 3,000 employees of whom 2,400 are
 employed in the MAPSC.
 
    3.  All of Respondent's Program Service Centers have been covered by
 master contracts since 1974.  The master contract currently in effect
 was executed in 1978;  and parts of it have been continued in effect by
 mutual agreement of the parties.  Article 10 of that agreement, which
 deals with union entitlement to official time for representational
 activities, has remained virtually unchanged since at least 1978.
 Article 10 entitles each union head steward to 25 percent official time
 for representational activities, and each union officer to 49 percent.
 
    4.  Article 10 of the master contract of the Program Service Centers
 provides for "reasonable time" for union representatives to travel
 between different buildings in a Program Service Center which are a
 substantial distance from each other (G.C. 2 B, page 22).  Since 1974,
 there has been a practice which allows union representatives in Kansas
 City an automatic 30 minutes in travel time, each way, between MAPSC's
 principal facilities-- the Federal Office Building (FOB) and the
 Mid-Town Office Center (MTOC), located about three quarters of a mile
 apart and serviced by an agency shuttle bus which usually runs every
 half hour.  Employees at the MTOC were housed at the Crown Center
 location for six years and up until the least there was lost.  The
 30-minute provision for travel time was apparently unilaterally
 initiated by Respondent's management at the MAPSC when the Crown Center
 facility was leased, and continued after the move to the MTOC.  See Tr.
 56 and 104.  /2/ Management has never moved to change the 30-minute
 provision.
 
    5.  Union representatives who wish to be excused on official time
 must obtain prior approval from a supervisor by completing an SSA Form
 75.  Every time a Union representative travels between the MTOC and the
 FOB, in Kansas City, the representative's supervisor notes the automatic
 30-minute allowance for travel each way on the SSA Form 75.
 
    6.  Donald Ruxlow is a claims authorizer for MAPSC and a head steward
 for Local 1336, a union job he has held for about eight years.  From
 1980 to March 18, 1984, he worked at the MTOC.  Before that, he worked
 at the Crown Center for six years.  For the last three years, Local 1336
 has assigned him to represent employees in a union-designated "Section
 9," which is a miscellaneous collection of employees on the ninth floor
 of the FOB and at a warehouse on Hardesty Avenue, about a mile and a
 half from the FOB.  Local 1336 created "Section 9" after Respondent
 agreed, in 1974, to allow Local 1336 an additional head steward in
 return for its acceptance of the module system, a module being a group
 of 55 employees who are assigned to handle a certain range of Social
 Security numbers through the process from the filing of a claim to
 payment.  Although he represents employees at various locations, Mr.
 Ruxlow spends most of his official time in Local 1336's office on the
 tenth floor of the FOB, where the union files are maintained, including
 grievance files.  Starting in the Fall of 1982, Mr. Ruxlow travelled to
 the union office almost every day to fulfill his representational
 responsibilities.
 
    7.  There are two other head stewards and two officers of Local 1336
 who work at the MTOC.  The head stewards are Dorothy Joy and Sam
 Schmidt.  They represent employees at the MTOC.  Each has been traveling
 to the union office from three to five times a week since May 1983.  The
 officers are William Clause and Beverly Garrett.  Neither is assigned to
 represent any particular group of employees.  Mr. Clause has been
 traveling to the union office from the MTOC three to five times a week
 for the past five years;  and Ms. Garrett has been traveling to the
 union office with the same frequency since May or June 1983.  When she
 became Secretary of Local 1336, Ms. Garrett was "asked," by the section
 chief, if she would like to physically move to the FOB;  she declined;
 and she was not moved (Tr. 76-77).  Instead, she made an arrangement
 with her section chief whereby she drove her car to the FOB, and was not
 required to return to the MTOC to check out at the close of the working
 day.  This arrangement eliminated half of her travel time allotment to
 and from the FOB.  Now, she is required to come back to the MTOC and
 uses the full one hour in travel time.
 
    8.  On April 26, 1984, the Manager of the section in which Mr. Clause
 and Ms. Garrett work, asked the Director of Management at MAPSC,
 Patricia Madach, to "(p)lease look into reassigning these two union
 officials as soon as possible to the Federal Office Building" (R. 2).
 The reason given was that they do not normally handle employee
 grievances, spend 49 percent of their working time in the union office
 in the FOB, and the transfer would save travel time.  No action has as
 yet been taken by management.  But, in July 1984, Ms. Garrett herself
 "put in for a move" to the FOB (Tr. 77).
 
    9.  It was stipulated that Mr. Ruxlow was known to Respondent as
 being an active union steward "who participates in protected activity on
 a regular basis" (Tr. 34).  Mr. Ruxlow's most active period as a steward
 began in September 1982.  Initially, it involved turmoil at the
 warehouse on Hardesty Avenue where no other steward is assigned to
 represent these employees.  Three or four employees were belligerent
 towards each other and, by the time Mr. Ruxlow appeared, a congressman
 and the Inspector General had been contacted;  and an employee had
 received a letter of reprimand.  Mr. Ruxlow dealt with various
 management officials concerning this situation, including Patricia
 Madach, who later informed him of his reassignment.  By December 1983,
 the controversy abated-- an employee was transferred and the warehouse
 was reorganized under a new chief.  In 1983, Mr. Ruxlow began processing
 a grievance on behalf of an OHA employee, in Omaha.  This representative
 involved 10 hours of arbitration on November 1 and a second session in
 January 1984.  The record does not show that Mr. Ruxlow received any
 allowance for travel to the warehouse or any OHA facility.
 
    10.  Ms. Madach is the Director of Management at MAPSC and the
 management official responsible for labor relations and the policing and
 monitoring of the use of official time by union officials.  In August
 1983, she became concerned about the use of official time by stewards to
 represent non-MAPSC employees.  See G.C. 7.  This representation is
 allowed by the parties' contract, in its "Crossover" provision;  but the
 Union is required to make "maximum" efforts to first utilize
 representatives with the component.  See G.C. 2a, page 73, Article 30,
 Section 4.  On August 1, 1983, she notified Local 1336 that union
 officials must indicate on their SSA Form No. 75 that they are
 representing a non-mapsc employee, and justify the need.
 
    11.  In October 1983, the chief of Mr. Ruxlow's section requested an
 accounting of his use of official time to represent the OHA employee in
 Omaha.  Mr. Ruxlow furnished an accounting of his time from the period
 of August 5 through October 13, but was unable to separate the time
 spent representing the OHA employee from his other representational
 duties.  See G.C. 4.
 
    12.  On November 1, 1983, Ms. Madach asked Local 1336 to furnish the
 union copies of SSA Form No. 75 for Mr. Ruxlow for the days Mr. Ruxlow
 accounted for to his section chief.  This request was made pursuant to
 Article 10, Section (e) of the Master Agreement.  See G.C. 5.  This was
 the first time management had ever invoked this provision of the
 contract.  Local 1336 complied with the request.
 
    3.  On March 1, 1984, Ms. Madach returned the Ruxlow forms to Local
 1336 with a memorandum which began with the advice that her review of
 the forms indicated that Mr. Ruxlow was "not requesting or obtaining
 official time properly, and (was) misrepresenting his time on the
 SSA-75-U4's" (G.C. 7, page 1).  A copy of her memorandum was sent to Mr.
 Ruxlow and his section manager.  She referred to her memorandum to Local
 1336 of August 1, regarding what must be indicated on the forms in
 regard to so-called "Crossover" time.  She specified instances where Mr.
 Ruxlow had not given sufficient information to his supervisors to allow
 management to insure that the contract provisions for "Crossover" time
 were being fulfilled.  She also specified some instances where Mr.
 Ruxlow reported working on grievances for specified individuals for whom
 management had no records of a pending grievance, and where Mr. Ruxlow
 reported a contact with a union official who was involved in a hearing
 on that day, and had not taken official time or leave without pay.  She
 noted that she was bringing these "discrepancies and inaccuracies" to
 Local 1336's attention pursuant to their contract and that, pursuant to
 the contract, Local 1336 had 5 working days to furnish written
 notification of "whatever correction actions may have been taken" (G.C.
 7, page 2).  She asked for Mr. Ruxlow's explanation for each alleged
 discrepancy, inaccuracy, and misrepresentation, and noted that Local
 1336's written reply would be "taken into consideration in determining
 whether disciplinary action should be contemplated" (G.C. 7, page 3).
 (In fact, no disciplinary, or other action has ever been taken against
 Mr. Ruxlow).  She concluded her memorandum with the following two
 paragraphs:
 
          During my review of Mr. Ruxlow's use of official time, it came
       to my attention that Mr. Ruxlow is the Head Steward for components
       located in the FOB only while he is assigned to a module in the
       MTOC.  I, therefore, reviewed his records to see how often it was
       necessary for Mr. Ruxlow to come to the FOB in order to fulfill
       his union obligations.  During the last year, there were only 10
       workdays on which Mr. Ruxlow did not travel to the FOB for his
       representational duties.  For the balance of the days during the
       last year, Mr. Ruxlow spent part of all of his day in the FOB on
       official time or he was on some type of approved leave.
 
          Granting travel time for a steward on an almost daily basis is
       an unnecessary financial burden on the agency and seriously
       interferes with the assigned duties of the agency.  In order to
       facilitate Mr. Ruxlow's ability to properly fulfill his
       representational duties, he is being assigned to a unit which is
       closer to the components he serves.  Effective March 18, 1984, Mr.
       Ruxlow will be assigned to Module 25, which is located in the FOB.
        Having Mr. Ruxlow in the same building as the union office and
       the components he represents should allow you to better insure
       that he is utilizing and reporting his official time properly.  We
       expect you to exercise your responsibility to insure that not only
       Mr. Ruxlow, but all union officials and stewards are completing
       their Form SSA-75-U4's accurately.
 
 See G.C. 7, page 3.
 
    14.  The decision to transfer Mr. Ruxlow to the FOB was not made by
 Ms. Madach, however, but by Marlyn Shuler, the Director of Operations at
 MAPSC.  Mr. Shuler has 180 managers and 42 modules "to worry about" and
 rarely knows what individual stewards do (Tr. 98), or how they use up
 their official time, leaving that "worry" instead to Ms. Madach and her
 labor relations staff.  Mr. Ruxlow's managers had been requesting that
 he move Mr. Ruxlow to the FOB for "quite some time" before he received a
 report from the labor relations staff which also suggested that he might
 want to move Mr. Ruxlow.  Until he received this report, Mr. Shuler had
 not fully realized the extent of the problem.  The report was based on a
 review of Mr. Ruxlow's SSA-Form-75s for a few years.  It showed him
 coming to the FOB almost every day.  And it showed that the frequency of
 his trips had been increasing from a low of 133 in 1978 to a high of 211
 in 1983, when there were 225 workdays available and Mr. Ruxlow had also
 used quite a bit of sick leave.  Mr. Shuler saw this travel as "of no
 particular value to him (Mr. Ruxlow) and a total loss to (MAPSC) of
 claims authorizer services for one hour per day" (Tr. 90).  There is "a
 shortage of claims authorizers pretty much across the board" at MAPSC
 (Tr. 99).  Mr. Shuler testified, in an honest, straightforward way, that
 his decision to transfer Mr. Ruxlow to the FOB was related solely to the
 unnecessary use of an hour a day of travel time, and that Mr. Ruxlow's
 activities on behalf of local 1336 had nothing to do with the decision.
 Mr. Shuler admitted that he preferred to ask employees whether they
 wished to be transferred before transferring them and that this was not
 done in the case of Mr. Ruxlow.  However, Mr. Shuler was not shown to
 have displayed any union animus or to have ever curtailed the use of
 official time by Mr. Ruxlow or any union representative.  There is a
 practice at the MAPSC to transfer employees to eliminate frequent and
 unnecessary travel time between the FOB and the MTOC.  Accordingly, I
 credit Mr. Shuler's testimony that he transferred Mr. Ruxlow solely to
 eliminate the one hour travel time between the FOB and the MTOC.
 
    15.  The manager of Mr. Ruxlow while he was a claims authorizer at
 the MTOC supervised him for three years.  She established that he
 travelled to the FOB almost every day.  As a head steward entitled to 25
 percent official time, his workload was reduced by 25 percent.  He could
 not be assigned a lot of hard cases because he was not available long
 enough.  Mr. Ruxlow himself admitted that occasionally he would have to
 suggest that a case be given to someone else, if it were "a real
 expedited" one, because of his union duties (Tr. 41).  His manager was
 not bothered by his use of official time, but considered the added
 travel time as a "major interference with the efficiency of (her)
 operation" (Tr. 87).  She evaluated his work performance as "above
 average in accuracy and production" (Tr. 90).  It was estimated that the
 one hour spent by Mr. Ruxlow in travel time to the FOB had cost MAPSC
 $11,652 in salary over the period from 1978 through the first quarter of
 1984.
 
    16.  Mr. Ruxlow was transferred to the FOB on March 18, 1984 without
 any prior consultation.  The assignment involved no change in pay,
 benefits, duties, or responsibilities.  It required no relearning
 process.  He continued to service claimants from the same State.
 However, Mr. Ruxlow did not want to be transferred.  He had established
 a good working relationship with managers in his module at the MTOC.
 Moreover, parking was free at the MTOC;  and now he must pay to park
 near the FOB.  Also, the MTOC is smaller than the FOB, and so it was
 easier for Mr. Ruxlow to arrive at and depart from his work station at
 the MTOC.  Mr. Ruxlow's present supervisor knows he was transferred
 because he was using so much travel time and questioned closely, on one
 occasion, when he sought permission to go to the MTOC to represent an
 employee there.  Nevertheless, she granted his request, after checking
 with the section office.
 
    17.  Prior to Mr. Ruxlow's transfer, no union representative had been
 transferred from the MTOC to the FOB because of the travel-time factor.
 The only other witness to serve in the MTOC as a head steward
 established that she went to union office at the FOB on an average of
 two or three times a week, in contrast to Mr. Ruxlow's almost daily
 visits over a period of years.  She apparently represented employees at
 the MTOC.  However, "sometimes" employees in other sections personally
 requested her;  and then she was required to go over to the FOB more
 often, "sometimes" every day of the week (Tr. 77).
 
    18.  In response to a question as to whether anybody in his present
 module knows why he was transferred, Mr. Ruxlow testified, inter alia,
 that some employees had remarked to him:  "Well, management got you
 finally, didn't they" (Tr. 42-43).  In agreement with Respondent (G.C.
 Br. 6, fn. 2), I conclude that this statement is ambiguous and could be
 interpreted as relating to the reduction of an hour a day in travel-time
 usage, which usage had left other employees to do Mr. Ruxlow's share of
 the workload, and was without any relationship to his use of official
 time to perform representational duties.
 
                        Discussion and Conclusions
 
    The General Counsel has not established, by a preponderance of the
 evidence /3/ that the transfer of Donald Ruxlow, a head steward of Local
 1336, from one building (the MTOC) to another (the FOB) was a violation
 of either Section 7116(a)(1) or (2) of the Statute, as alleged in the
 complaint.
 
    A. The alleged Section 7116(a)(2) violation.
 
    One element of proof of a Section 7116(a)(2) unfair labor practice is
 that the action taken was discriminatory in nature.  See footnote 1,
 above.  The General Counsel argues that it is "obvious" that the action
 taken here was "predicated on discrimination-- that he was treated
 differently because he was a union representative" (G.C. Br. 8) and
 relies on several facts of record.
 
    Primary reliance seems to be placed on the Madach memorandum of March
 1, 1984 to the President of Local 1336.  See G.C. Br. 8 and finding 13,
 above.  Patricia Madach is the management official responsible for
 monitoring and policing the use of official time by union
 representatives.  The President of Local 1336 is her counterpart.  To
 him she wrote to complain about what seemed to her to be a misuse of
 official time by Mr. Ruxlow and to seek an explanation.  Only
 incidentally did she bring up the matter that, in reviewing his
 official-time forms, it had come to her attention that he was
 representing union components located in the FOB while assigned by
 management to the MTOC, and this was necessitating almost daily trips to
 the FOB.  She then went on to comment that "(g)ranting travel time for a
 steward on an almost daily basis is an unnecessary financial burden on
 the agency and seriously interferes with the assigned duties of the
 agency." See finding 13, above.  It was in this context that she then
 used the language relied upon by the General Counsel:" "In order to
 facilitate Mr. Ruxlow's ability to properly fulfill his representational
 duties, he is being assigned to a unit closer to the components he
 serves." See finding 13, above, and G.C. Br. 8.  She then used the
 second sentence relied upon by the General Counsel:  "Having Mr. Ruxlow
 in the same building as the union office and the components he
 represents should allow you to better insure that he is utilizing and
 reporting his official time properly." See finding 13 and G.C. Br. 8.
 She then concluded the memorandum by stating:  "We expect you to
 exercise your responsibility to insure that not only Mr. Ruxlow, but all
 union officials and stewards are completing their (official time forms)
 accurately." See finding 13.  Thus, when viewed in context, the Madach
 statements relied upon the General Counsel do not reflect discrimination
 against union representatives, but rather a legitimate, managerial
 concern in policing the use by union representatives of time allowed by
 the parties' collective bargaining commitments to perform union
 representational responsibilities.
 
    Furthermore, the decision to transfer Mr. Ruxlow was not made by Ms.
 Madach, but by his line supervisor, Marlyn Shuler, Mr. Shuler testified
 creditably that his decision was based solely upon such a needless waste
 of time (one hour daily over a period of years) that was of no benefit
 to Mr. Ruxlow and was a considerable loss to the activity.  See finding
 14, above.  Mr. Shuler, when asked on cross-examination whether Mr.
 Ruxlow was reassigned because he was a union steward, replied:
 "Coincidentally so" (Tr. 114).  But this does not necessarily infer a
 discriminatory motive.  Rather, it explains that Mr. Ruxlow's transfer
 was in line with an established practice of transferring MTOC employees
 to the FOB to eliminate frequent unnecessary travel time between the two
 buildings and, it just so happened, that Mr. Ruxlow's frequent and
 unnecessary travel was related to his union stewardship.  As in the case
 cited by the General Counsel at page 8 of his brief, Veterans
 Administration Medical Center, Buffalo, New York (VA), 13 FLRA No. 46,
 13 FLRA 283, 291 (1983), it was in the nature of "fortuitous
 circumstances" that a union-related matter was what precipitated the
 action taken.  In the VA case, a union steward was eliminated during a
 selection process, but no discriminatory motive was found.  As in the VA
 case, it is significant here that there was no proof of union animus or
 strain between the manager who made the decision and the union steward
 affected by it.  Here, the steward was treated the same as other
 employees who were transferred from the MTOC to the FOB to eliminate
 unnecessary loss of production time to travel between the two buildings.
 
    The General Counsel also claims that Mr. Ruxlow was treated
 differently from other union representatives.  But the record shows that
 Mr. Ruxlow was unique among union representatives located in the MTOC--
 he was the only one regularly assigned to represent a union component in
 the FOB building, to which he was transferred, and had no regularly
 assigned duties to represent any union component in the MTOC building
 from which he was transferred.
 
    The General Counsel notes that another MTOC-situated union
 representative was first asked by management if she wanted to transfer
 to the FOB;  was not transferred when she declined;  and was first given
 another option.  See G.C. Br. 15 and finding 7, above.  However, as also
 noted by the General Counsel, there is no policy statement or regulation
 concerning such transfers;  and management could have rationally decided
 that Mr. Ruxlow's unique status made his transfer imperative, namely his
 job as a claims authorizer being in short supply at the activity and his
 having no regular union assignment to represent anyone in the MTOC so
 that he would not need to make frequent use of travel time to return to
 the MTOC.
 
    The General Counsel also argues that "the timing of Ruxlow's
 reassignment is suspect" (G.C. Br. 13), in that he had been traveling to
 the FOB extensively for years, and it was not until he represented an
 employee in a component other than MAPSC, on so-called "crossover" time
 that MAPSC management reassigned him to the FOB.  Suspicions alone do
 not meet the burden of proof required in this case, however.
 Management's labor relations staff has a legitimate interest in
 inquiring as to use of crossover time.  Use of travel time was not an
 unnatural consequence of this inquiry.  The labor relations staff
 brought the travel-time matter to the attention of the line supervisor
 who could eliminate the problem.  He had been hearing complaints from
 his managers about the problem, but had not fully appreciated the extent
 of it until receiving the report from the labor relations staff.  He
 then acted to eliminate it.  He had no ax to grind with Local 1336, or
 Mr. Ruxlow, and did not concern himself with labor relations matters,
 leaving that to the labor relations staff.  The reassignment gives him
 an added hour of production time in an area where it is needed.  Any
 aroused suspicions are allayed by these facts.
 
    Having concluded that the transfer of Mr. Ruxlow was now shown to be
 discriminatory in nature, it is unnecessary to reach other issues raised
 and discussed by the parties as to the alleged section 7116(a)(2)
 violation.
 
    B.  The alleged Section 7116(a)(1) violation
 
    Since the briefs were filed in this case, the Authority has issued a
 decision which is central to the determination of the issue presented
 here, namely, under what circumstances does an unfair labor practice
 occur when the right of an employee to engage in protected activity /4/
 collides with the right and duty of an agency to run an efficient and
 economic operation.  See Department of the Navy, Norfolk Naval Shipyard,
 Portsmouth, Virginia, (Norfolk Naval Shipyard), 15 FLRA No. 165, 15 FLRA
 867 (August 31, 1984), holding that:
 
          Ordinarily, the removal of an employee from assigned duties
       solely because of the employees' protected union activity
       constitutes an unfair labor practice.  See, e.g., Internal Revenue
       Service, Boston District, Boston, Massachusetts and Internal
       Revenue Service Center, Andover, Massachusetts, 5 FLRA 700 (1981).
        However, the Authority recognizes that conflicts may arise
       between the rights of employees and the rights and duties of
       management.  Section 7101 of the Statute, for example, provides
       both for the right of employees to participate in the collective
       bargaining process through labor organizations of their own
       choosing, and for the safeguarding of the public interest in
       maintaining an effective and efficient Government.  Further,
       irreconcilable conflicts may arise between management's right to
       insist on the performance of a job that cannot be deferred and an
       employee's right to engage in protected union activity, such as
       the representational activities of the employee herein involved.
       Where such conflicts arise, management must be free to assign the
       employee, without loss of pay, to other duties that will not
       impair any essential function of the agency, but will permit the
       employee to perform those other duties and to also engage in
       protected union activity.  It is the burden of management when
       exercising that right, however, to show that such a transfer of
       assignment is warranted.  See 15 FLRA 867-868.
 
    In the Norfolk Naval Shipyard case the employee who was engaged in
 protected union activity was a five alarm technician, whose duties were
 to maintain the five alarm system, and who worked on a five alarm truck.
  The Authority held that his transfer off the truck was not shown by the
 agency to be "warranted" because "the record di(d) not demonstrate that
 the protected representational activities of the employee (t)here
 involved interfered with the performance of his duties . . . ." (id at
 868).
 
    Application of the Norfolk Naval Shipyard rationale to the facts of
 record here calls for a different conclusion.  Local 1336 has the right
 to assign stewards where it deems them to be necessary;  and the steward
 has the right to assist Local 1336 by accepting this assignment.  But
 management also has the right, indeed the duty, to run an efficient and
 as economic operation as possible.  These rights collided in the person
 of Mr. Ruxlow who, as a head steward, was spending one hour a day,
 almost every day, over an extensive period, in traveling from a building
 where he represented no bargaining-unit component (the MTOC) to another
 building (the FOB) where he did represent a component and where all the
 union files on grievances are kept.  Management was thus losing one
 hour, daily, of production time from an employee holding a job that was
 in short supply and necessary to perform a task essential to the
 activity's function-- the processing of Social Security claims.
 Management acted to eliminate this impediment to its function by
 transferring Mr. Ruxlow to the FOB.  The transfer in no way interfered
 with Mr. Ruxlow's ability to engage fully in his actual representational
 duties.  It involved no loss of pay, status, or job change.  Supervision
 changed, as well as certain office perks, such as free parking--
 concerns of legitimate interest to Mr. Ruxlow.  However, AFGE itself
 recognizes that the "public interest demands . . . the continued
 implementation of . . . work practices to facilitate and improve . . .
 the efficient accomplishment of the operations of the government." See
 the Preamble to the parties' collective bargaining agreement (G.C. 2 A,
 page 1).  Thus, Mr. Ruxlow's interest in staying put can be said to have
 been justifiably subordinated to this paramount concern of the public
 interest in eliminating the wasteful practice here at issue.  Under the
 circumstances presented by this record, it must be concluded that Mr.
 Ruxlow's transfer was "warranted," in the Norfolk Naval Shipyard sense.
 
                  Ultimate Findings and Recommended Order
 
    Respondent was not shown, by the preponderance of the evidence, to
 have engaged in the unfair labor practices alleged in the complaint.
 
    Accordingly, the complaint in this case should be, and it hereby is
 dismissed.
 
                                       Isabelle R. Cappello
                                       Administrative Law Judge
 
    Dated:  November 21, 1984
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The pertinent statutory provisions are as follows:
 
          Section 7116(a)(2) makes it an unfair labor practice for an
       agency "to encourage or discourage membership in any labor
       organization by discrimination in connection with hiring, tenure,
       promotion, or other conditions of employment."
 
          Section 7116(a)(1) makes it an unfair labor practice for an
       agency "to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter."
 
          Section 7102 declares that:
 
          Each employee shall have the right to form, join, or assist any
       labor organizati