26:0163(18)CA - DOD, Warner Robins ALC, Robins AFB, Ga., and AFGE, Local 987 -- 1987 FLRAdec CA
[ v26 p163 ]
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 shown that the announcement of Mr. Gibbs' transfer followed closely upon his declared intention to file a grievance over the TDY, the credited mutually corroborative testimony of Mr. McLure and Mr. Calhoun establishes that prior to February 3, 1986, when Mr. Gibbs was first informed of his impending transfer, Mr. McLure and Mr. Calhoun had already analyzed Mr. McLure's staff and selected Mr. Gibbs for transfer to Mr. Robinson's staff. Although there were four experienced employees on Mr. McLure's staff, Mr. Gibbs was ultimately selected through the process of elimination. In this latter connection, while it is true, as pointed out by the General Counsel, that there were two experienced employees on Mr. McLure's staff who had formerly worked in Building 641 with Mr. Robinson, namely Mr. Bevins and Mr. Ande, the record establishes that their transfer to Building 641 might well have created a morale problem since Mr. Bevins had been transferred out of Building 641 by higher authority and Mr. Ande has served previously as a temporary supervisor over Mr. Robinson. Eliminating Mr. Ande and Mr. Bevins from consideration for transfer left only Mr. Gibbs and Mr. Bennett as the only experienced candidates for transfer. Since, Mr. Bennett was currently working on an assignment, Mr. Gibbs became the logical person for transfer since he was in between assignment. Contrary to the assertion of General Counsel, I can not find that Mr. Robinson's inquiry, reference to, and/or statement about Mr. Gibbs' TDY problem, as described by Mr. Gibbs in his record testimony, constitutes an admission that his, Gibbs', action in "questioning TDY procedures caused his permanent reassignment". /9/ This is particularly true when Robinson's own testimony indicates that he played no part in the selection process. Finally, and again contrary to the contention of the General Counsel and the testimony of Mr. Gibbs, I can not find that Mr. Gibbs did not possess experience on equipment similar to that housed in Building 641, or that since his transfer he has not utilized such experience in Building 641. In this connection the credited testimony of Mr. McLure and Mr. Robinson indicate that Mr. Gibbs worked with Mr. McLure on the original installation of the conveyors in Building 641 and that since his transfer to Building 641 he has utilized his prior printer experience on the TI printer located in Building 641. Accordingly, based on the above considerations, I find that the record evidence falls short of establishing that Mr. Gibbs' transfer to Building 641 was based upon his announced intention to file a grievance over the TDY assignment. Moreover, to the extent that one might differ with the above conclusion, I further find that the record establishes that Mr. Gibbs would have been transferred to Building 641 even if he had not engaged in protected conduct. Internal Revenue Service, Washington, D.C., 6 FLRA 96. Having concluded that the Respondent did not violate the Statute, it is hereby recommended that the Authority issue the following Order dismissing the complaint in its entirety. ORDER IT IS HEREBY ORDERED, that the Complaint should be, and hereby is, dismissed in its entirety. /s/ BURTON S. STERNBURG Dated: December 23, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The American Federation of Government Employees, AFL-CIO, is the exclusive representative of Respondent's employees in a command-wide unit. Local 987 is an agent of the American Federation of Government Employees, AFL-CIO, and duly authorized to represent Respondent's employees in the consolidated unit. (2) In the absence of any objection, General Counsel's "Motion to Correct Transcript", should be, and hereby is, granted. (3) The record indicates that Mr. Gibbs had received as much or more training with respect to his duties in Building 376 than any of his fellow employees. The record further reveals that of the 14 employees in Building 376, Mr. Gibbs was number eight in terms of seniority. (4) On February 4, 1986 Mr. Gibbs wrote a "memo for the record" which both he and Mr. McLure signed. The memo reads in pertinent part as follows: At approximately 1510 hours, 3 FEB. 1986 Mr. Edwin S. McLure called Raleigh Gibbs into his office and told him (Gibbs) Mr. Calhoun said Mr. Robinson was needing some help in bldg. 641, so Gibbs was being considered. Raleigh asked when this move was to take place and Mr. McLure said he didn't say, he (Calhoun) only said he was considering it. Mr. McLure said that he (McLure) suggested that Mr. Bevins be sent back to bldg. 641 and Mr. Calhoun said he couldn't send him (Mr. Bevins). (5) Inasmuch as the new assignment would require Mr. Gibbs to learn new systems, etc., he felt that would have difficulty in achieving superior performance awards. He also felt that TDY assignments would be more difficult to come by. (6) Although Mr. Robinson acknowledges having a discussion with Mr. Gibbs when he first reported for work in Building 641, his testimony does not include any reference to "TDY" problems, etc. (7) In this connection Mr. McLure testified that Mr. Gibbs had worked with him on the initial installation of the conveyors in Building 641. Mr. Robinson testified that since his transfer, Mr. Gibbs had utilized his prior printer experience on the TI printer located in Building 641. (8) Only one out of the five remaining employees according to Mr. Robinson could be classified as being experienced. (9) The statement from Mr. Calhoun to Mr. Robinson, i.e. "that he, Mr. Calhoun, was having problems with TDY", allegedly uttered during the conversation wherein Mr. Robinson was asked "how he would like to have one of Mr. McLure's people", without more, is too ambiguous to establish that Mr. Gibbs' selection for transfer was caused by his challenge to the TDY selection.