26:0163(18)CA - DOD, Warner Robins ALC, Robins AFB, Ga., and AFGE, Local 987 -- 1987 FLRAdec CA



[ v26 p163 ]
26:0163(18)CA
The decision of the Authority follows:


 26 FLRA No. 18
 
 DEPARTMENT OF DEFENSE 
 WARNER ROBINS AIR LOGISTICS CENTER 
 ROBINS AIR FORCE BASE, GEORGIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 987, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-60234
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in these
 proceedings, 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 filed exceptions to the
 Judge's decision, and the Respondent filed an opposition.
 
    Pursuant to section 2423.29 of our Rules and Regulations and section
 7118 of the Federal Service Labor-Management Relations Statute, we have
 reviewed the rulings of the Judge made at the hearing.  We find that no
 prejudicial error was committed, and we affirm those rulings.  Upon
 consideration of the Judge's Decision, the exceptions, the opposition
 and the entire record, we adopt the Judge's findings, conclusions and
 recommended Order.
 
                                   ORDER
 
    The complaint in Case No. 4-CA-60234 is dismissed.
 
    Issued, Washington, D.C., March 12, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 4-CA-60234
 
 DEPARTMENT OF DEFENSE, WARNER ROBINS AIR 
 LOGISTICS CENTER, ROBINS AIR FORCE BASE, GEORGIA
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
 LOCAL 987, AFL-CIO
    Charging Party
 
    Richard S. Jones, Esquire
       For the General Counsel
 
    Kenneth J. Emanuel, Sr., Esquire
       For the Respondent
 
    Ms. Nedra T. Bradley
       For the Charging Party
 
    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 a charge filed on February 5, 1986, by Local 987,
 American Federation of Government Employees, AFL-CIO, (hereinafter
 called the Union or Local 987), a Complaint and Notice of Hearing was
 issued on April 30, 1986, by the Acting Regional Director for Region IV,
 Federal Labor Relations Authority, Atlanta, Georgia.  The Complaint
 alleges in substance that the Department of Defense, Warner Robins Air
 Logistics Center. Robins Air Force Base, Georgia, (hereinafter called
 the Respondent) violated Sections 7116(a)(1) and (2) of the Federal
 Service Labor-Management Relations Statute, (hereinafter called the
 Statute), by permanently transferring bargaining unit employee Raleigh
 Gibbs to an undesirable job location because he expressed his intent to
 file a grievance pursuant to the collective bargaining agreement in
 effect between the Respondent and the Union.  /1/
 
    A hearing was held in the captioned matter on June 24, 1986, at
 Robins Air Force Base, Georgia.  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 September 12
 and September 15, 1986, respectively, which have been duly considered.
 /2/
 
    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. Raleigh Gibbs is employed by Respondent as an Electronic Digital
 Computer Mechanic.  Prior to March 24, 1986, when he was transferred,
 Mr. Gibbs had spent the prior 15 years working in Building 376 under the
 immediate supervision of Mr. Edwin McLure.  Mr. Gibbs' primary duties
 while in Building 376 consisted of "mainly working on two TI computers,
 four CD-1400 disc drives, two tape drives, and 30 some off remote
 terminals which is composed of Televideo CRTs, TI-810 printers, symbol
 lasers".  Mr. Gibbs had received extensive factory training on the
 aforementioned equipment which he was responsible for servicing.  /3/
 
    While working in Building 376 Mr. Gibbs received at least two
 Sustained Superior Performance Awards as well as numerous letters of
 appreciation.  Respondent's Counsel, during the course of the
 proceedings offered to stipulate that Mr. Gibbs is a "commendable
 employee".
 
    During his tenure in Building 376 Mr. Gibbs took advantage of the
 many opportunities available to travel on temporary duty training
 assignments which occurred approximately three or four times a year.  On
 January 22, 1986, he was asked by his immediate supervisor Mr. McLure if
 he would be interested in going on TDY to McClellan Air Force Base.  Mr.
 Gibbs answered in the affirmative.
 
    On or about January 29, 1986, Mr. Gibbs heard a rumor that another
 employee was going to replace him on the TDY to McClellan Air Force
 Base.  On January 30, 1986, he approached Mr. McLure, who had just
 returned from annual leave, and questioned him about the rumor.  Mr.
 McLure informed him that he had no knowledge of any change, but would
 make an inquiry and get back to Mr. Gibbs.  On January 31, 1986, after
 checking with Branch Chief Leon Calhoun, Mr. McLure informed Mr. Gibbs
 that the rumor was true and that an employee with less seniority than
 Mr. Gibbs had been given the TDY to McClellan.  Inasmuch as the
 collective bargaining agreement provided for TDY assignments on the
 basis of seniority, Mr. Gibbs requested Mr. McLure to set up an
 appointment with Mr. Calhoun who had the final authority to make the TDY
 selection.
 
    On February 3, 1986, Mr. Gibbs met with Mr. Calhoun and discussed the
 TDY and Article 22 of the collective bargaining contract which deals
 with selections for TDY.  The meeting ended with Mr. Gibbs informing Mr.
 Calhoun that he, Mr. Gibbs, intended to file a grievance concerning the
 selection of a junior employee in terms of seniority for the TDY to
 McClellan Air Force Base.
 
    Following the meeting Mr. Gibbs returned to his duty station and
 informed his supervisor, Mr. McLure, that he wanted to file a grievance
 and requested Union President Nedra Bradley as his representative.
 Later, the same afternoon, Mr. McLure called Mr. Gibbs into his office
 and informed him that he was going to be transferred to Building 641 to
 work under Supervisor Ray Robinson who was short of personnel.  He also
 told Mr. Gibbs that he would call Ms. Bradley about "this other thing"
 meaning the grievance.  /4/
 
    At an unspecified date, Ms. Bradley met with Mr. McLure for purposes
 of discussing the TDY to McClellan Air Force Base.  At this time she and
 Mr. Gibbs learned for the first time that there had been a further
 change in the person assigned to the TDY, and that such person had more
 seniority than Mr. Gibbs.  Although not clear from the record, inasmuch
 as Respondent appeared to be in compliance with the collective
 bargaining agreement, the grievance was dropped.
 
    On March 7, 1986, Mr. Gibbs was called into Mr. McLure's office and
 informed that he was being permanently assigned to Building 641 under
 the supervision of Mr. Robinson, effective two weeks hence.  /5/
 
    On March 24, 1986, Mr. Gibbs reported to his new assignment in
 Building 641.  At such time, according to Mr. Gibbs, he had had a
 conversation with his new supervisor, Ray Robinson, wherein Mr. Robinson
 stated that approximately three or four weeks earlier he, Mr. Robinson,
 had approached Mr. Calhoun and requested a promotion register for
 purposes of filling a position in Building 641.  At that time Mr.
 Calhoun asked him how he would like to have one of Mr. McLure's people.
 He further stated that he, Mr. Calhoun, was having some problems with
 TDY.  Mr. Robinson then went on to inform him, Mr. Gibbs, that he heard
 nothing further from Mr. Calhoun until approximately the tenth of
 February when Mr. Calhoun informed him that Mr. Gibbs had been given two
 weeks notice of his assignment to Building 641.  Further, according to
 Mr. Gibbs, Mr. Robinson inquired as to the problems Mr. Gibbs was having
 with TDY and Mr. Gibbs went on to explain that it was the selection
 procedure that he was questioning.  Finally, Mr. Robinson went on to
 explain what went on in his section and informed Mr. Gibbs that it would
 take at least six months before he could perform on his own without
 supervision.  /6/
 
    Although Mr. Gibbs professed to have little or no experience on the
 computer equipment and systems within Building 641, Mr. Robinson, Mr.
 McLure and Mr. Calhoun all testified that they were of the opinion that
 while the equipment Mr. Gibbs had worked on in Building 376 was not
 identical to the equipment in Building 641, his past experience on
 computers would make it easier for him to adapt to the equipment in
 Building 641, which, among other things, included computerized
 conveyors, and storage facilities.  /7/
 
    With respect to the circumstances leading up to the assignment of Mr.
 Gibbs from Building 376 to Building 641 the record establishes that
 during the period November 1985 through January 1986, Mr. Robinson's
 shop lost three of its eight authorized employees.  /8/ Due to this loss
 of personnel he was forced to cancel the "owl" shift.  The cancellation
 of the shift caused numerous complaints from various other departments
 which relied upon Mr. Robinson's operation to keep the computerized
 conveyors and storage facilities working.  Thus, when a shift was closed
 down by Mr. Robinson, this meant that there was no computer mechanic on
 duty to fix the computerized conveyors.  The complaints from the other
 departments, as well as Mr. Robinson's own complaints, were all directed
 to Mr. Calhoun.
 
    According to the mutually corroborative testimony of Mr. Calhoun and
 Mr. McLure, the transfer of Mr. Gibbs from the staff of Mr. McLure in
 Building 376 to Mr. Robinson's staff in Building 641 had been discussed
 between them prior to February 3, 1986, the day that Mr. Gibbs first
 indicated that he was going to file a grievance over the TDY to
 McClellan Air Force Base.  According to Mr. McLure, he and Mr. Calhoun
 had been analyzing his, (Mr. McLure's) staff for purposes of selecting
 an experienced employee for transfer to Mr. Robinson's depleted staff.
 They eliminated from consideration two experienced employees on Mr.
 McLure's staff who had worked in Mr. Robinson's area in the past because
 they had either supervised Mr. Robinson on a temporary basis or had been
 transferred out by higher authority.  The elimination of these latter
 two employees from consideration, left only Mr. Gibbs and Mr. Jerry
 Bennett as the only possible experienced employees eligible for transfer
 to Mr. Robinson's section.  Inasmuch as Mr. Bennett was currently
 involved on a specific installation assignment, it was determined that
 Mr. Gibbs, who was in between project assignments, should be selected
 for transfer.
 
    Further, according to Mr. McLure, although he had been aware of Mr.
 Robinson's prob lems with respect to the shortage of personnel for some
 time, he had been dragging his feet on suggesting an employee for
 transfer since he hated to lose any of his employees, particularly, Mr.
 Gibbs.  He finally gave notice to Mr. Gibbs of the impending transfer
 after a further discussion with Mr. Calhoun on February 3, 1986.
 
    Mr. Calhoun, as noted above, corroborates Mr. McLure's testimony to
 the effect that (1) he and Mr. McLure had discussed transferring an
 employee from Mr. McLure's section to Mr. Robinson's depleted staff, (2)
 they had subsequently agreed, after analyzing Mr. McLure's staff, to
 transfer Mr. Gibbs, and (3) the decision to reassign Mr. Gibbs was made
 prior to February 3, 1986.  Further, according to Mr. Calhoun, although
 they had been aware since at least December 1985 that Mr. Robinson was
 in need of additional employees, the situation did not become critical
 until January 26, 1986, when Mr. Robinson was forced to curtail the owl
 shift because of the shortage of personnel.  At such time it was agreed
 that selection of an employee from a register would not suffice because
 Mr. Robinson's need could only be satisfied by the addition of an
 experienced employee who could quickly learn his system.  At that time,
 he and Mr. McLure began an analysis of Mr. McLure's staff for purposes
 of selecting an experienced employee for transfer.  The choice finally
 narrowed itself down to Mr. Gibbs.  On February 3, 1986, Mr. Calhoun
 inquired of Mr. McLure whether he had informed Mr. Gibbs of his
 impending transfer.  Receiving a negative reply, he told Mr. McLure to
 so inform Mr. Gibbs which he did.
 
    Like Mr. McLure, Mr. Calhoun denied that the threat by Mr. Gibbs to
 file a grievance over the TDY played any part in their mutual decision
 to transfer Mr. Gibbs to Mr. Robinson's staff.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that the Respondent violated
 Sections 7116(a)(1) and (2) of the Statute since the record evidence
 supports the conclusion that the transfer of Mr. Gibbs was in
 retaliation for his declared intention to file a grievance over the TDY
 assignment.  In support of this position, the General Counsel relies on
 the timing of the decision to transfer, i.e. the same day he, Gibbs,
 indicated his intention to file a grievance, the fact that there were
 other employees on Mr. McLure's staff with prior Building 641
 experience, "Robinson's admission that Gibbs' questioninf of TDY
 procedures caused his permanent reassignment", and the evidence
 indicating that, contrary to Respondent's assertion, Mr. Gibbs did not
 in fact possess experience and training on equipment similar to that
 housed in Building 641.
 
    The Respondent on the other hand takes the position that the sole
 reason for Mr. Gibbs' transfer was the need to assign an experienced
 employee to Mr. Robinson's depleted staff.  While it concedes that the
 timing was unfortunate, since the announcement of the decision coincided
 with the TDY incident, Respondent points out that the record evidence
 supports a finding that Mr. McLure and Mr. Calhoun had decided prior to
 February 3, 1986, the date Mr. Gibbs had announced his intention to file
 a grievance over the TDY matter, to transfer Mr. Gibbs to Mr. Robinson's
 staff.  Additionally, Respondent points to Mr. McLure's testimony to the
 effect that Mr. Gibbs was a logical choice for the transfer since he had
 in fact worked on the original installation of the conveyor equipment in
 Building 641.  Finally, the Respondent points out that the transfer of
 Mr. Bevins and Mr. Ande who had formerly worked in Building 641 before
 joining Mr. McLure's staff would have created a morale problem since one
 had been Mr. Robinson's supervisor on a temporary basis and the other
 had been transferred out from Mr. Robinson's staff on orders by higher
 authority.  Finally, Respondent takes the position that even if it is
 concluded that Mr. Gibbs expressed intent to file a grievance played a
 part in the decision to transfer Mr. Gibbs, the record evidence further
 establishes that Respondent would have transferred him in any event even
 in the absence of such protected activity.  Based on the foregoing the
 Respondent urges dismissal of the complaint in its entirety.
 
    Section 2423.18 of the Authority's Rules and Regulations imposes upon
 the General Counsel the burden of proving the allegations of the
 complaint by a preponderance of the evidence.  In agreement with counsel
 for Respondent, I find that the General Counsel has failed in this
 endeavor.
 
    Thus, while the General Counsel has sho