28:0820(108)CA - Nuclear Regulatory Commission and NTEU -- 1987 FLRAdec CA



[ v28 p820 ]
28:0820(108)CA
The decision of the Authority follows:


28 FLRA No. 108

NUCLEAR REGULATORY COMMISSION

             Respondent

      and

NATIONAL TREASURY EMPLOYEES
UNION

             Charging Party

Case No. 3-CA-70045

DECISION AND ORDER

I. Decision

The Administrative Law Judge issued the attached decision in this case, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that the Respondent be ordered to take appropriate remedial action. The Respondent has filed exceptions to the Judge's decision. The Charging Party has filed an opposition to the exceptions.

Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Order

A. Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Nuclear Regulatory Commission shall:

1. Cease and desist from:

(a) Interfering with the protected rights of steward Rajyashree Tripathi, or any other employee, by making threats or statements that management does not [PAGE] approve of her union activities, that grievances should be kept to a minimum, and that the employee could lose her job if she continued these activities.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at its Washington, D.C., metropolitan area office facilities, wherever bargaining unit employees are located, copies of the attached Notice on forms furnished by the Authority. Upon receipt of the forms, they shall be signed by the Commission's Executive Director for Operations and be posted and maintained for 60 days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered.

(b) Notify the Regional Director of Region III, Federal Labor Relations Authority, within 30 days from the date of this Order, in writing, as required under section 2423.30 of the Authority's Regulations, of the steps it has taken to comply.

B. The allegations in paragraphs 6(b), 7 (to the extent it refers to 6(b)), and 8-9 of the complaint are dismissed.

Issued, Washington, D.C., August 31, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p2 ]

                      NOTICE TO ALL EMPLOYEES
       AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
               AND TO EFFECTUATE THE POLICIES OF THE
         FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                   WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with the protected rights of steward Rajyashree Tripathi, or any other employee, by making threats or statements that management does not approve of her union activities, that grievances should be kept to a minimum, and that the employee could lose her job if she continued these activities.

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.

                             ______________________________
                                  (Agency or 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.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, NW., 7th Floor, P.O. Box 33578, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. [PAGE]

NUCLEAR REGULATORY COMMISSION
          Respondent

    and

NATIONAL TREASURY EMPLOYEES UNION
          Charging Party

Case No. 3-CA-70045

Dennis C. Dambly, Esquire
Marvin L. Itzkowitz, Esquire
          For the Respondent

Ira Sandron, Esquire
          For the General Counsel

Janice M. Rodgers, Esquire
          For the Charging Party

Before: RANDOLPH D. MASON
        Administrative Law Judge

DECISION

Statement of the Case

This proceeding was initiated under the Federal Service Labor - Management Relations Statute, chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101, et seq., and the Final Rules and Regulations issued thereunder, 5 C.F.R. 2423.1, et seq. Pursuant to a charge, as amended, filed by the National Treasury Employees Union, the General Counsel of the Federal Labor Relations Authority issued a complaint and Notice of Hearing on January 30, 1987, alleging that Respondents violated section 7116(a)(1) of the Statute by threatening a union steward and attempting to discourage her [PAGE] union activity by certain statements, and sections 7116(a)(2) and (1) by discriminating with regard to her working conditions by requiring her to account for her time in 15 minute increments. In a timely filed Answer, Respondents deny any violation of the Statute.

The undersigned was selected by the Office of Personnel Management to conduct this proceeding under the authority of 5 U.S.C. 3344 and 5 CFR 930.213.

A nearing was held by the undersigned in Washington, D.C., on March 24, 1987. All parties were represented by counsel and given full opportunity to be heard, adduce evidence, and examine and cross-examine witnesses. All parties submitted briefs which have been duly considered. In addition, for good cause shown, Respondent's motion to open the record to receive the new collective bargaining agreement (Resp. Exh. 19) and motion to correct the transcript are granted. After consideration of the entire record, including the pleadings, briefs, documentary evidence, admissions, and stipulations of the parties, I make the following findings of fact, conclusions of law, and recommended order:

FINDINGS OF FACT

Background

At all times material hereto, the National Treasury Employees Union has been the exclusive representative of a nationwide unit of certain professional and nonprofessional employees at the Respondent Nuclear Regulatory commission.

During the period in issue, Rajyashree R. Tripathi, Ph. D., was a Reactor Systems Engineer at Respondent's Office of Analysis and Evaluation of Operational Data ("AEOD"), Washington, D.C. Dr. Tripathi has a Ph. D. in nuclear engineering. She worked in Reactor Systems Section 2 of the Reactor Operations Analysis Branch ("ROAB"). Her responsibilities included evaluation of reactor operating experience at nuclear power plants to identify potential safety problems, accident precursors, and abnormal occurrences. She proposed improvements and occasionally met with the Advisory Commission on Reactor Safeguards and congressional staff members. She also performed long-term studies such as the "1984 Data Comparison Study," which was her most time-consuming project during the period in issue.

Between February and October, 1986, her immediate supervisor in ROAB was Dr. Peter Lam, section chief of [ v28 p2 ] Reactor Systems Section 2. Dr. Lam's supervisor was Dr. Stuart D. Rubin, Branch chief of ROAB.

In March of 1986 Tripathi was seeking a detail from NRC to work on a subcommittee on Capitol Hill. A congressman wrote a letter on May 7 to NRC requesting this detail. Tripathi requested the support of her supervisors and made it clear that she considered this an "opportunity of a lifetime." Later, Lam speculated that the agency may delay the detail, and Tripathi became angry and referred to Mr. Jack Heltemes, the office director of AEOD, as a "nobody" and a "peon." On June 10, 1986, NRC advised the Congressman that the detail could not be accomplished in view of the fact that it was requested on a non-reimbursable basis. Although Rubin had no involvement in this decision, Tripathi angrily accused him of blocking the transfer and said he and Heltemes were not going to get away with it. She told Lam she was going to hit Heltemes in the nose. Although Tripathi 's relationship with Lam had been cordial and professional until the spring of 1986, it began to deteriorate at that point.

On June 1O, 1986, her work on the 1984 Data Comparison Study had not yet been completed and the study was long overdue. In April, she had told Lam that she wanted to take an extended period of leave to travel to India, but she did not give any specific dates or make a written request at that time. On June 19 she made a written request to take five weeks of leave to return to India beginning July 25, consisting of 157 hours of annual leave and 47 hours of leave without pay. At first, Rubin, who had authority to approve her leave, told her that she could take the leave if she could complete a first draft of the study before her departure. She at first agreed if she could get compensatory time for overtime, but this was refused. She turned down the offer later the same day, and wrote a letter to Lam insisting that the leave request be approved or denied within two days.

Her written application for leave was denied due to workload and reduced staffing during the period in question, and she was granted permission to take only two weeks of leave. She was extremely upset and told Lam that Rubin was a "baboon." She also told Rubin that he had been "totally unfair" about this and that she was going to "make trouble" for him. On June 27 she filed a grievance on the matter, alleging that Rubin was putting improper pressure on her and that he had "displayed an arrogance bordering on contempt." The grievance was resolved on July 29 by management agreeing to allow her to take the five weeks of leave at the end of the calendar year. [ v28 p3 ]

Between June 25 and September 5, Tripathi left about 12 notes for Lam stating that she had gone to see a union steward. Lam showed these notes to Rubin and remarked about her unhappiness.

Tripathi's leave was denied because she had failed to complete the 1984 Data Comparison Study, which was assigned to her in 1985 and was long overdue. There was a pressing need to have it completed. At the end of July 1986, Tripathi submitted a proposed time schedule indicating when each section of the study would be completed. She stated that the entire study would be completed in September 1986. However, about a month later, she warned that the study might not be completed on time because she had other duties and sick leave. Rubin and Lam did not consider this a valid excuse; they were concerned because the time spent on other matters was minimal. At that point they told her to spend 100% of her time on the study.

Since annual performance appraisals were due on September 30, and new performance elements and standards were to be completed by management shortly thereafter, employees in the branch were asked to state, among other things, ways in which they could improve their performance on the job. In her September 4 response, Tripathi stated that she did not need to improve because she already had all the necessary skills, but that management "desperately needed" a "drastic change of attitude" and a more humanitarian approach to its employees.

At that point the 1984 Data Comparison Study was the only project assigned to her. On September 18 she wrote a memorandum to Lam indicating that she would probably not be able to finish the study on time. On September 23 she met with Rubin and Lam to discuss revised completion dates.

She received her annual performance appraisal on September 30. She was rated "fully successful" by Rubin. However, he noted that she could improve her ability to complete her long-term studies in an expedited time frame by better managing her time and more carefully reviewing her drafts. On October 2 she filed a grievance alleging that the overall appraisal was unfair, dishonest, and constituted retaliation for her union activities. The grievance was resolved on February 9, 1987, by management agreeing to withdraw the appraisal and issue a reappraisal.

September 17 Conversation

On September 16, 1986, Lam received a memorandum from the [ v28 p4 ] union announcing the appointment of Tripathi as a union steward for AEOD. The agency had previously been notified on or about September 10, but Lam was not informed until September 16. Thereafter, Lam spoke to Huel Meadows in the Labor Relations branch, who informed him that the negotiated agreement requires the steward to seek permission from his supervisor before leaving to conduct union representational work.

On September 17, 1986, Tripathi had a conversation with Lam in the latter's office. Lam mentioned a note that Tripathi had left for him the previous day stating that she was meeting with Mr. George Barber, the Executive Vice President of NTEU Chapter 208. Lam then gave her a copy of the official time article in the negotiated agreement (Resp. Exh. 2) and asked her to abide by these procedures in the future:

"A union representative must request and be granted permission from his/her supervisor or supervisor's designee to take time away from work to perform Union representational functions, unless such time is expected to be less than 10 minutes. He/she will specify the purpose, . . . expected length of time off from official duties, the office he/she intends to visit, and a telephone number where he/she can be reached . . . . Union representatives shall furnish the information described in this paragraph on a form which will be maintained by the supervisor. (No such form existed in September 1986). In the event that the Union representative's supervisor is unavailable, the Union's representative shall leave a message for the supervisor or designee furnishing the information described in this paragraph.

(Although it appears that Lam and Tripathi were unaware of the fact, Resp. Exh. 2 was merely a proposal under negotiation at the time; instead, Resp. Exh. 14 contained the language of the contract in effect. The latter did not contain the "less than 10 minutes" exception, but the Articles were not materially different for the purposes of this proceeding.) [ v28 p5 ]

Lam said he had been "lenient" with her up to that point, but that from then on he was going to "follow the book." Lam was merely requesting that she ask for permission first, as provided by the contract, rather than telling him after the fact. Tripathi was very agitated during the conversation and said she did not have to abide by the agreement. I find that when Lam's statement is taken in context, he was merely asking that she abide by the official time article now that she was a union steward.

Tripathi also testified that Lam said that although he personally did not care, the "front office (upper management) does not approve of the technical staff getting into representational activities." Although Lam denied making this statement, Tripathi was a more credible witness. Based on Tripathi's demeanor and forthright testimony, I find that Lam made the latter statement.

September 18 Conversation

Tripathi also testified that in a second conversation, Lain said that he was her friend and wanted to help her, that she should keep the grievances to a minimum, and that she should restrict herself to technical, work-related activities. She testified that he said she "should not mess with Stuart Rubin," who he said was more experienced at "these games," which she interpreted as labor-management activities. She also testified that Lam also stated that if she continued with her representational activities, Rubin could exert enough pressure on her to make her "crack up."

Again, based on Tripathi's demeanor and forthright testimony, Lam's testimony to the contrary is rejected. Accordingly, I find that Lam made these statements to Tripathi.

September 22 Conversation

On this date Tripathi initiated a conversation with Lam because she was admittedly upset with him. She thought Lam had said something about her to her co-worker, Ted Cintula, and she told Lam: "If you have any problems with my representational activities, you should confront me directly rather than passing messages through somebody else." She also testified that Lam said he was only thinking about her welfare, and if she kept up these activities she would stand to lose her job. Lam denies that Tripathi had this conversation with him. For the reasons previously stated, I credit Tripathi's testimony and find that Lam made this statement. [ v28 p6 ]

September 23 Conversation with Dr. Rubin

On September 23 Rubin met with Tripathi and told her that he wanted to talk to her about her "happiness" working in the branch. Although she had never told him she was unhappy in her job, he assumed this from her prior actions. She testified that she is "guessing" as "one of the many possibilities" that Rubin was unhappy with her representational activities and that she would be less of a headache if she were not in the branch. However, no mention was made of any union activities during this conversation. (Although she had filed a grievance on the denial of leave before she became a steward, she later filed only one grievance on behalf of another employee in her capacity as steward on September 29.) When Rubin referred to her unhappiness, he was referring to the fact that she was frustrated about not being detailed to Capitol Hill, the denial of her request for leave, the comments about Rubin in her grievance, and her negative comments about management in her memo on performance standards. He was concerned about her productivity and thought that her attitude toward management was affecting her work. Since her performance appraisal was being prepared, he felt this was an opportune time to discuss this problem.

During the conversation, he said if she wanted to transfer to another branch within the office or another office within the agency, he might be able to help her. She said she was not against a transfer if it advanced her career. He specifically mentioned another branch in AEOD as a possibility. She told him that such a transfer would not help her career and that she was not interested, but that she might be interested in some other position.

September 24 Conversation with Dr. Lam

Lam met with Tripathi on September 24 and told her that he understood she had declined Rubin's offer of a possible transfer. Tripathi testified that Lam also told her that when Rubin talked to her, the latter might have already "lined up his ducks" and could "ship you anywhere he wants to." Again, Lam denies making this statement. Based on Tripathi's demeanor and credible testimony, I find that Lam made these statements to Tripathi.

Accounting for Time

Tripathi had a conversation with Rubin on October 15, 1986 on accounting for union time. Tripathi testified that [ v28 p7 ] Rubin told her that in order to fill in her time and attendance card, she had to account for her union-related, representational time in 15-minute increments. She says she told him that others did not have this requirement, but that she would comply. On the same morning, she wrote Rubin a memo setting forth the union-related time she had spent rounded to the nearest quarter hour. The memo stated: "At your request, I had to divide up the time in 15 minutes of chunk of the clock (sic)." Thereafter, she continued to account for her time in this manner. Rubin testified that he did not impose the 15-minute accounting requirement, and that it was Tripathi who chose to break up her time in these increments. Rubin was responsible for signing her time card, which requires that representational time be accounted for separately under an "RE" code. Based on Rubin's demeanor and credible testimony, I find that Respondent never imposed this requirement (Tr. 197). It appears that Tripathi previously rounded off her time for purposes of the time card, and that she decided to do the same in this instance.

CONCLUSIONS OF LAW

Complainant contends that Respondent violated section 7116 (a)(1) by making certain statements to Tripathi which interfered with, restrained, or coerced her in the exercise of her rights guaranteed by section 71O2 of the Statute. The latter section provides, in part, that each employee shall have the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal. Specifically, the Complaint charges that Tripathi's immediate supervisor, Lam, made the following statements in conversations with Tripathi on September 17, 18, 22, and 24, 1986:

(a) The front office does not approve of the employee/union steward's union activities.

(b) He had been "lenient" with her before but from now on he was going by the book.

(c) She should keep grievances to a minimum and should cease "messing around" with Rubin.

(d) If she kept up these activities, she would stand to lose her job and management could ship her off anywhere they wanted. [ v28 p8 ]

As indicated in the findings of fact, Lam admittedly made statement (b) that he had been lenient with her but now was going to "follow the book." However, when this statement is taken in context, Lam was merely asking Tripathi, as a newly appointed steward, to abide by the official time provisions of the negotiated agreement pertaining to stewards. This statement did not interfere with, coerce, or restrain her in the exercise of her 7102 rights.

On the other hand, I have found that Lam also made statements (a), (c), and (d). I based these findings on the credible testimony of Tripathi. Lam's testimony denying that he made these statements was rejected. These statements clearly interfered with, restrained, or coerced Tripathi in the exercise of her rights under 7102. Accordingly, an appropriate order will be issued with respect to these unfair labor practices under 71l6(a)(1).

The complaint further alleges an unfair labor practice under 7116(a)(1) by a statement made on September 23 to Tripathi by Rubin, her second-level supervisor. As alleged in the Complaint, I find that Rubin told Tripathi that if she was unhappy in the branch he might be able to help her get a transfer. However, this statement, by itself, was not coercive and did not otherwise interfere with her rights under 71O2 of the Statute. Based on her previous actions, Rubin had good reason to believe that Tripathi was unhappy with her job. Rubin did not mention her union activities during the conversation, and Tripathi testified that she is only "guessing" as "one of the many possibilities" that Rubin was referring to her representational work. It is, of course, possible that Rubin and Lam conspired to intimidate Tripathi now that she had become a union steward, and that Rubin's remarks were part of this scheme. However, there is no proof of such a conspiracy or any nexus between the statements of the two supervisors. Moreover, there is no other proof that the protected activity was a motivating factor behind Rubin's remarks. Accordingly, these remarks did not constitute an unfair labor practice.

Finally, the complaint alleges that Respondent imposed the requirement of accounting for Tripathi's time in 15-minute increments. The General Counsel contends that this discouraged membership in the union by discriminating against Tripathi in connection with her conditions of employment and constituted an unfair labor practice under 7116(a)(2) and (1). Crediting Rubin's testimony on this issue, I have found that this requirement was never imposed. This contention is also rejected. [ v28 p9 ]

Accordingly, in all the circumstances herein I recommend that the Authority issue the following:

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor - Management Relations Statute, the Authority hereby orders that the Nuclear Regulatory Commission shall:

1. Cease and desist from:

(a) Interfering with the protected rights of steward Rajyashree Tripathi, or any other employee, by making threats or statements that management does not approve of her union activities, that grievances should be kept to a minimum, and that the employee could lose her job if she continued these activities.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Post at its Washington, D.C. metropolitan area facilities, wherever bargaining unit employees are located, 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 Executive Director for Operations, Nuclear Regulatory Commission, 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. Reasonable steps shall be taken to insure that said Notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with it. [ v28 p10 ]

IT IS FURTHER ORDERED that the allegations contained in Paragraphs 6(b), 7 (to the extent it refers to 6(b)), 8, and 9 of the complaint, be and hereby are, dismissed.

Randolph D. Mason
Administrative Law Judge

Dated: May 20, 1987
       Washington, D. C.

                              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 interfere with the protected rights of steward Rajyashree Tripathi, or any other employee, by making threats or statements that management does not approve of her union activities, that she should keep grievances to a minimum, and that she could lose her job if she continued these activities.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

                              _____________________________
                                  (Agency or Activity)

Dated:_____________________By:_____________________________
                                      (Signature)

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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, N. W., Suite 700, P.0. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (2