21:0053(12)CA - Navy, Portsmouth Naval Shipyard, Portsmouth, N.H. and Dennis R. Lacroix -- 1986 FLRAdec CA

[ v21 p53 ]
The decision of the Authority follows:

 21 FLRA No. 12
 DENNIS R. LACROIX, An Individual
 Charging Party
                                            Case No. 1-CA-40151
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had not engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision and the
 Respondent filed an opposition to the General Counsel's exceptions.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's conclusion and recommended Order.  In adopting the Judge's
 conclusion that the complaint should be dismissed herein, the Authority
 notes particularly that the record evidence does not establish that the
 employee herein was discriminated against or interfered with because he
 filed grievances or engaged in other protected activity.  More
 specifically, the Authority finds, as did the Judge, that there was no
 evidence of union animus on the part of the supervisor herein;  that the
 record evidence did not show any relationship between the grievances
 filed by the employee herein and his allegedly lowered 1983 performance
 appraisal rating;  and that no correlation was shown between the
 employee's complaint to his union representative concerning the work
 assignments given to certain employees and his 1983 performance rating.
 Accordingly, the Authority concludes that the General counsel has failed
 to meet the burden of proving that the Respondent unlawfully
 discriminated against the employee, and the complaint alleging a
 violating of section 7116(a)(1) and (2) of the Statute shall be
 dismissed.  /1/
    IT IS ORDERED that the complaint in Case No. 1-CA-40151 by, and it
 hereby is, dismissed.
    Issued, Washington, D.C., March 13, 1986
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In reaching such conclusion, the Authority does not rely on the
 Judge's suggestion on page 5 of the decision that the subject employee's
 complaint about the work assignments of certain employees, in the
 circumstances of this case, was not protected activity or on his
 statements on pages 5 and 6 regarding a "mixed motive" analysis.
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    DENNIS R. LACROIX, An Individual
         Charging Party
    Peter F. Dow, Esquire For the General Counsel
    Richard H. Greenberg, Esquire For the Respondent
    Before:  ELI NASH, Jr.  Administrative Law Judge
                           Statement of the Case
    Pursuant to a Complaint and Notice of Hearing issued on May 29, 1984
 by the Regional Director for the Federal Labor Relations Authority,
 Boston, Massachusetts Region, a hearing was held before the undersigned
 on July 24, 1984.
    This proceeding arose under the Federal Service Labor-Management
 Relations Statute (herein called the Statute).  It resulted from charges
 originally filed on February 21, 1984 and amended on May 18, 1984 by
 Dennis R. Lacroix (herein called Mr. Lacroix) against the Department of
 the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, (herein
 called Respondent).
    The Complaint alleges that the agency violated sections 7116(a)(1)
 and (2) of the Statute by considering the protected Union activity of
 Mr. Lacroix in preparing his annual performance appraisal for calendar
 year 1983 and by preparing and issuing a lowered performance appraisal
 for calendar year 1983 because of Mr. Lacroix's protected Union
    Respondent's Answer denied the commission of any unfair labor
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
                             Findings of Fact
    On Monday, April 4, 1983 Dennis R. Lacroix was involuntarily
 transferred to the crew of supervisor James Knowles.  /1/ Mr. Knowles,
 credibly testified that he did not know the reason for Mr. Lacroix's
 transfer to his crew.  In any event, the involuntarily transfer resulted
 from an unfair labor practice charge being filed alleging discrimination
 by Mr. Lacroix's previous supervisor.  The transfer was subsequently
 found by the Authority in Department of the Navy, Portsmouth Naval
 Shipyard Portsmouth, New Hampshire, 17 FLRA No. 107 (1985), to be m
 violation of the Statute.  Mr. Lacroix continued to work under Mr.
 Knowles' supervision until sometime in March 1984.
    During 1983, while he worked on the crew supervised by Knowles', Mr.
 Lacroix was told by both Knowles and General Foreman Joseph Freda that
 he was doing a good jobs there were no problems with the quantity or
 quality of his work, and they were both satisfied with his work.  These
 same things were told Mr. Lacroix by his Foreman and General Foreman
 regarding his performance in 1982, when Ladroix received a "highly
 satisfactory" overall summary rating.  Without question Mr. Lacroix was
 safety conscious and indeed he voiced a number of complaints and filed
 several grievances. the grievances concerned environmental differential
 or Code 27 pay for exposure to asbestos while working aboard ship and a
 counselling session on or around August 18, 1983.
    During his period as temporary foreman, Mr. Knowles supervised
 between ten and twelve individual employees in the time frame in which
 Lacroix worked under his supervision.  Of the ten or twelve employees
 who Knowles supervised he had the opportunity to evaluate and prepare
 appraisals on only seven of those employees.  The reason he was not
 allowed to evaluate four of the employees was because of shift transfers
 prior to evaluations in several instances and at least one employee was
 an apprentice, who was evaluated under a somewhat different system.  Mr.
 Knowles testified that he would probably have rated three of the four
 "right in the satisfactory range." A breakdown of the seven he actually
 supervised shows one outstanding;  four highly satisfactory and two
    The two satisfactory ratings vent to Mr. Lacroix and Mr. Wood. of
 considerable note is a chart prepared by the General Counsel which shows
 appraisals for the seven employees evaluated by Mr. Knowles in 1983 and
 a comparison with the 1982 ratings of each employee:
    Ratings of Each Employee (CHART OMITTED)
    This chart shows that Mr. Knowles did not rate most of those
 employees the same as their 1982 supervisor.  In fact when the
 evaluations are compared there is a wide discrepancy between what
 previous supervisors and Mr. Knowles felt about many of these employees.
  One reason for such disparity is probably that new and different
 standards of evaluation were applied.
    During mid-August 1983, Mr. Lacroix and Mr. Wood were assigned a high
 pressure air line job on the 605 boat.  According to Mr. Knowles, who at
 that time was acting as General Foreman, he sent Mr. Lacroix to Building
 299 to obtain some fittings needed to connect certain hoses and he sent
 Mr. Wood to the shop to attempt to get some from the supervisor in the
    Mr. Knowles testified that some 15-20 minutes went by and that he was
 called by Mr. Wood and told, "They wouldn't allow us to have any."
 Later, Mr. Knowles went to Building 299, and asked for the fittings.
 The tool room tenant gave him two fittings.  Mr. Knowles, states that he
 asked the tool room tenant, "Has anybody been in since suppertime to see
 you?" And the tool room tenant responded a "Since supper?" And said,
 "Very seldom do we get asked for these anymore, because we never have
 them in, we're always out of stock, it seems like." Upon returning to
 the work area, Mr. Knowles testified that he found Lacroix, Wood and a
 welder standing around talking. two were counselled concerning this
 incident and a grievance concerning their counselling was filed by
 Steward Joseph R. Luvisi on October 7, 1983.
    The grievance was pursued vigorously by Luvisi through several steps,
 but its revocation was finally denied on January 20, 1984.  The General
 Counsel points out that Mr. Wood's 1983 appraisal was also lowered.
 However, to my knowledge there is no allegation that Mr. Wood was
 discriminated against because of his participation in this incident or
 because he filed a grievance or participated in protected activity.
    Interestingly, Luvisi and another steward, Robert Liberty, had
 nothing but praise for Mr. Knowles' handling of labor relations matters.
  Luvisi who handled several of Mr. Lacroix's complaints stated, "I've
 never had any problem at all with Jimmy Knowles.  Every time I've talked
 to him about any kind of concern, whether it be a safety problem or any
 kind of labor management relations, he's always been very receptive."
    Mr. Liberty, who was at one time a chief steward also testified that
 Mr. Knowles relationship with him as steward and chief steward was "very
 good." Mr. Liberty also testified that while he was phasing out his
 union activities during the time he worked for Mr. Knowles, he had filed
 one grievance on behalf of Mr. Lacroix.  Voluntarily, Mr. Liberty added
 that Mr. Knowles was the type supervisor who believed in 8 hours work
 for 8 hours pay.
    Aside from the one counselling session mentioned above Mr. Knowles
 considered Mr. Lacroix's work satisfactory.  Mr. Knowles testified in
 detail concerning his 1983 rating of employees, including Mr. Lacroix.
 The testimony reveals that Mr. Knowles never looked at any previous
 ratings;  that his comparison with higher rated employees was just a
 matter of perception;  that he took the attitude of attacking the job
 and doing it, not trying to skirt the issue of the employees into
 consideration.  In sum, he felt that Mr. Lacroix, when working on more
 complex jobs had time delays and problems which were not outside the
 realm of satisfactory work, but was in substance clearly not highly
 satisfactory.  On the other hand he felt more comfortable assigning more
 complex work to other employees.  Mr. Knowles' assignments to employees
 like' Hallam and Hannigan was the subject of complaints.  Mr. Knowles no
 doubt had a great deal of confidence in this duo.
    With regard to the grievances filed by Mr. Lacroix concerning Code 27
 pay the record clearly demonstrates that contrary to the General
 C0unse1,s view, Mr. Knowles supported those grievances.  He not only
 approved one, but three requests for environmental differential pay for
 Mr. Lacroix and, in fact the grievances were submitted with his
 signature.  The record shows that grievances were filed on September 26,
 1983 and February 1 and 14, 1984.  It is noted that at least one and
 probably two of these grievances were filed after Mr. Lacroix filed
 after the 1983 appraisal was prepared and presented to Lacroix the
 latter two grievances.  The position that Mr. Knowles took on these
 grievances was contrary to the ultimate management position that
 environmental differential pay was not warranted and there is no doubt
 that he told Luvisi that he had gotten his "ass chewed." Consequently,
 one of the grievances resulted in arbitration Unquestionably
 environmental differential pay for asbestos exposure was a controversial
 area, as the record shows, and it no doubt stimulated much concern as
 shown by the congressional and outside interests in the matter.  Taken
 in proper context, Mr. Knowles' got his "ass chewed" because he took a
 position, which was not the management position and not because he had
 filed for Code 27 pay for Mr. Lacroix.  I see no connection between
 these grievances and Mr. Lacroix's allegedly lowered rating.
    Finally, I find no correlation between Mr. Lacroix's complaining
 about Hallam and Hannigan working together and his rating.
 Notwithstanding the fact that Mr. Lacroix complained long and hard
 concerning this assignment, so did others.  Others who were rated by Mr.
 Knowles in the highly satisfactory range.  Moreover, assignment of
 employees, as employees, is not within the purview of another employee
 so Mr. Lacroix's complaints about those assignments are not, in my view,
 protected activity.
                        Discussion and Conclusions
    The General Counsel asserts that it made a prima facie showing that
 Mr. Lacroix had engaged in protected activity and that the protected
 conduct was a motivating factor in reducing Lacroix's 1983 rating to
 "satisfactory." Notwithstanding its contention that a prima facie case
 was made, the General Counsel urges reconsideration of the Authority's
 application of its established standards in mixed-motive cases.  /2/
    On the other side of the coin, the Respondent maintains that the
 rating given Mr. Lacroix had no negative impact on his career
 opportunities;  that notwithstanding a highly satisfactoy rating in the
 preceding year, Mr. Knowles' evaluation was higher than the evaluation
 Mr. Lacroix received two years before;  /3/ there was no anti-union
 animus involved;  and, finally Mr. Knowles' standards were higher than
 the supervisor who had rated Mr. Lacroix the previous year.
    Having established its prima facie case under IRS the burden shifted
 to the Respondent to establish by a preponderance of the evidence
 basically, that Mr. Lacroix's appraisal for 1983 would have been the
 same even in the absence of his protected activity.
    Respondent presented evidence which clearly met its burden of proof.
 While it is not clear what adverse impact would result from Mr.
 Lacroix's receiving only a satisfactory rating, such ratings could, but
 it is nor shown how in this record, impair Mr. Lacroix' s career.
 Furthermore, ratings are considered in seniority for reductions-in-force
 under present regulations and could indeed impact of Mr. Lacroix's
 federal job retention rights.  The above is merely speculation, but show
 that there may indeed be some impact despite Respondent's position to
 the contrary.  More importantly, however, Mr. Knowles was a new
 Temporary Foreman rating employees for the first time;  Mr. Knowles was
 rating employees under different criteria than they had been previously
 rated;  Mr. Knowles did not rate most of the employees he evaluated for
 1983 the same as their supervisor had the previous rating year;  Mr.
 Knowles gave sufficient legitimate business reasons which satisfy the
 undersigned that the appraisal, while it might have been based on
 interpersonal relations, was not motivated by Mr. Lacroix's
 participation in any protected Union activity.  Even more important is
 the fact that there is no record evidence to establish that Mr. Lacroix
 was, during the period of time in question, more than a satisfactory
 employee.  In fact, the 1983 appraisal is consistent with the evaluation
 Mr. Lacroix received two years earlier and runs counter to a finding
 that Mr. Lacroix was more than a satisfactory employee.  Thus, he was
 rated satisfactory in two of the three rating periods shown on the
 record.  Inasmuch as the record clearly supports a finding that the 1983
 evaluation was based on Mr. Knowles' assessment of Mr. Lacroix as a
 satisfactory employee it is concluded that the appraisal should not be
 disturbed by finding a violation of section 7116(a)(2) of the Statute.
    The General Counsel also suggests that Respondent violated section
 7116(a) (1) of the Statute by considering the protected activity of Mr.
 Lacroix in preparing his annual performance appraisal for 1983.
 Respondent counters that there is a complete lack of anti-union animus.
 In fact, it argues that there are no statements or conduct which would
 interfere with or coerce any employees under the Statute.  I agree.
    A review of the record shows that Mr. Knowles, while a Temporary
 Foreman seemingly had excellent rapport with the Union.  It reveals
 further that he supported Mr. Lacroix rather than opposed him in his
 quest for Code 27 pay;  that he counselled Mr. Lacroix and Mr. Wood s
 for what appear to be legitimate concerns;  and, that his conduct
 evidenced no animus whatsoever upon which to base a section 7116(a)(1)
 violation.  Moreover, it was not established that Mr. Knowles considered
 Mr. Lacroixi's protected union activity in preparing the 1983 appraisal.
    IT IS HEREBY ORDERED, that the Complaint in Case No. 1-CA-40151 be a
 and it hereby is, dismissed.
                                       ELI NASH, JR.
                                       Administrative Law Judge
 Dated: August 12, 1985
        Washington, DC
 --------------- FOOTNOTES$ ---------------
    /1/ Although Knowles was acting as a Temporary Foreman, he was at the
 time of the hearing a WG-10 pipefitters having been returned to the
 bargaining unit after serving a two year period as Temporary Foreman.
    /2/ See, Internal Revenue Service, Washington, D.C., 6 FLRA No. 23
 (1981);  See also, Office of Program Operations, Field Operations,
 Social Security Administration, San Francisco Region, 9 FLRA 73 (1982),
 American Federation of Government Employees v. Federal Labor Relations
 Authority, 716 F.2d 47 (1983).  The General Counsel does not
 thoughtlessly suggest such an approach.  However, subsequent to the D.C.
 Circuit decision, the Authority has reiterated its application of the
 IRS standard to mixed motive cases.  There is validity in the General
 Counsel's overall argument that the Authority in essence, may be
 unnecessarily denying itself the power to act in future cases where
 union activities are considered in the selection process but are not
 determinative and where no independent violations of the Statute are
 found.  Notwithstanding such possible denial, the Authority has clearly
 adopted Mt.  Healthy City School District Board of Education v. Doyle,
 529 U.S. 274 (1977) as the test for establishing a section 7116(a)(2)
 violation under the Statute.  Based on my overall findings in this
 matter it is not necessary, in my opinion, to recommend to the Authority
 based on the instant record any change in that approach.  Accordingly,
 the General Counsel' s argument is rejected.
    /3/ Department of the Air Force, Scott Air Force Base, 14 FLRA No. 54