49:1522(139)CA - - Portsmouth Naval Shipyard, Portsmouth, NH and Portsmouth Federal Employees Metal Trades Council - - 1994 FLRAdec CA - - v49 p1522
[ v49 p1522 ]
The decision of the Authority follows:
49 FLRA No. 139
FEDERAL LABOR RELATIONS AUTHORITY
PORTSMOUTH NAVAL SHIPYARD
PORTSMOUTH, NEW HAMPSHIRE
PORTSMOUTH FEDERAL EMPLOYEES
METAL TRADES COUNCIL
DECISION AND ORDER
July 13, 1994
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the exceptions.
The consolidated complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by terminating its past practice of issuing certain Government motor vehicle permits (permits) to employees without providing the Charging Party with notice and an opportunity to negotiate over the change. The complaint also alleges that the Respondent violated: (1) section 7116(a)(1), (2), and (4) of the Statute when it rescinded an employee's permit because he engaged in protected activity; and (2) section 7116(a)(1) of the Statute when a supervisory employee stated that an employee should not be promoted because of time he spent in the Union office.
The Judge found that, although the Respondent was not obligated to bargain over its decision to change its past practice, the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union before changing the practice and affording the Union an opportunity to bargain over the impact and implementation of the change. The Judge dismissed the other allegations in the complaint.
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the following reasons, which differ in part from those of the Judge, we conclude, in agreement with the Judge, that the Respondent did not violate the Statute by failing to bargain with the Union over its decision to change its past practice.(1) We adopt the Judge's findings regarding dismissal of the remaining allegations in the complaint.(2)
II. Background and Facts
The facts, which are fully set forth in the Judge's decision, are summarized below.
Prior to September 1991, the Respondent issued permits authorizing employee motor vehicle operators (MVOs) to drive certain types of vehicles on base without regard to whether the MVOs held valid state commercial driver's licenses (CDLs) to drive that type of vehicle.(3) Subsequently, the Respondent determined that the practice was inconsistent with an Agency regulation, NAVFAC P-300.(4) The Respondent determined further that two unit employees, Donald Roy and Donna Miller, did not possess valid state CDLs to drive the tractor trailers which their permits authorized them to drive on base. Accordingly, in September 1991, the Respondent rescinded those employees' permits. At the same time, the Respondent ceased issuing such permits. In April 1992, the Respondent rescinded the permit of a third MVO, Guy Lavoie, for the same reason.
III. Judge's Decision
The Judge rejected the General Counsel's claims that the Respondent violated the Statute by: (1) failing to bargain over the decision to cease issuing permits; and (2) rescinding Roy's permit because he engaged in protected activity. With respect to the former claim, the Judge determined that the issuance of permits for employees to operate vehicles on base that they could not, under state CDLs, operate off base "was a condition of employment which afforded overtime opportunities as well as operating experience which could lead to future advancement." Judge's Decision at 18. However, the Judge also determined that the Respondent's practice of issuing such permits had become unlawful under NAVFAC P-300 as well as the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), 49 U.S.C.A. App. § 2701, et seq., and the Federal Motor Carrier Safety Regulations, 49 C.F.R. part 383 (FMCSRs).
Although the Judge did not rely on any particular section of the CMVSA,(5) the Judge cited, with respect to the FMCSRs, 49 C.F.R. § 383.21(a), which provides, in pertinent part, that "[n]o person who operates a commercial motor vehicle shall at any time have more than one driver's license[,]" and 49 C.F.R. § 383.23(a)(2), which provides that "no person shall operate a commercial motor vehicle unless such person possesses a CDL which meets the standards . . . issued by his/her State . . . ." Judge's Decision at 20, 4. According to the Judge, those regulations prohibited "MVOs having a state license for certain purposes and a [G]overnment 'license' . . . for other purposes." Id. The Judge also determined that NAVFAC P-300 is a Department of the Navy regulation, within the meaning of Article 1 of the parties' agreement, and, as such, is applicable to the parties.(6)
The Judge rejected the General Counsel's reliance on a portion (questions 6 and 7) of a Federal Highway Administration (FHA) Interpretive Bulletin for the argument that the Respondent's past practice was not unlawful.(7) According to the Judge, questions 6 and 7 addressed "a 'person' not a MVO." Id. at 21 n.9. Moreover, according to the Judge, the Bulletin did not address the prohibition on an MVO possessing more than one license.
The Judge concluded that, as the Respondent's practice of issuing permits had become unlawful, the Respondent was not required to bargain over its decision to change its practice.
The Judge also concluded that the General Counsel failed to make a prima facie showing that Roy's permit was rescinded because he engaged in protected activity. As relevant here, the Judge rejected the General Counsel's argument that the Respondent's actions in connection with rescinding Lavoie's permit (nearly 7 months after it rescinded Roy's permit) established that the Respondent unlawfully discriminated against Roy.(8) The Judge found, in this regard, that Lavoie's supervisor "credibly testified" that, prior to rescinding Lavoie's permit, the supervisor believed that Lavoie held a valid state CDL for the motor vehicles authorized for operation by his permit. Id. at 23.
Moreover, according to the Judge, the record "affirmatively and overwhelmingly show[ed] that . . . Roy's protected activity was not a consideration in the withdrawal" of his permit. Id. The Judge found that the rescission of Roy's permit was based on the Respondent's belief that the permit was inconsistent with NAVFAC P-300. In addition, the Judge found that the Respondent, through Roy's supervisor, "demonstrated extraordinary consideration" for Roy in preparing him for, and accompanying him to take, his state examination. Id. The Judge concluded that the Respondent's actions were "the absolute antithesis of animus toward . . . Roy for any reason." Id. at 24.
Having concluded that the General Counsel failed to establish a prima facie showing of discrimination, the Judge dismissed the allegations in the complaint that the Respondent violated section 7116(a)(1), (2) and (4) of the Statute.
The General Counsel contends that the Judge erred in finding that the Respondent's past practice was unlawful under the CMVSA and the FMCSRs. The General Counsel contends that the Secretary of Transportation is responsible for administering the CMVSA and that the Secretary's interpretation of that statute is contained in the FHA Interpretive Bulletin. In this regard, the General Counsel contends that, based on questions 6 and 7 in the Bulletin, any requirement that a person have a valid state CDL to operate a class of motor vehicles "in effect, stops at the gates to the Respondent's shipyard[.]" Brief in Support of Exceptions at 3 (footnote omitted). The General Counsel claims that, as the Respondent's "practice is limited to 'shipyard only' operation," it cannot be "logically concluded that either the CMV[S]A or the Secretary's regulations have made [Respondent's] practice unlawful." Id.
The General Counsel also contends that it established by a preponderance of the evidence that the Respondent revoked Roy's permit because he engaged in protected activity. In particular, the General Counsel asserts that the Judge failed to properly consider evidence that the Respondent continued to assign Lavoie to operate vehicles for which he was not licensed by a state well after it had rescinded Roy's license. The General Counsel also asserts that the Judge erred in: (1) refusing to admit evidence of specific prior instances of Roy's protected activity; and (2) admitting evidence of Respondent's actions in assisting Roy to prepare for and take a state licensing examination. In the General Counsel's view, the latter evidence is self-serving and unreliable.
V. Analysis and Conclusions
A. Alleged Refusal to Bargain
It is well established that an agency may not change a condition of employment without fulfilling its bargaining obligations. See U.S. Department of the Air Force, 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, 41 FLRA 850, 853 (1991), application for enforcement filed sub nom. FLRA v. U.S. Department of the Air Force, 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, No. 91-3731 (11th Cir. July 30, 1991), cross petition for review filed sub nom. U.S. Department of the Air Force, 56th Combat Support Group (TAC), MacDill Air Force Base, Florida v. FLRA, No. 91-3803 (11th Cir. Aug. 17, 1991). However, there is no obligation to bargain over a decision to change a past practice which is unlawful. See U.S. Department of Interior, Bureau of Reclamation, 20 FLRA 587, 589 (1985) (DOI).(9)
Although the General Counsel disputes certain of the Judge's findings regarding this issue, other matters are not disputed. In particular, there is no dispute that nothing in the CMVSA exempts the Respondent or the MVOs involved in this case from its coverage. See 49 U.S.C.A. App. § 2716(9) (defining "employer" as "any person (including the United States . . .) who owns or leases a commercial motor vehicle or assigns employees to operate such a vehicle."). There also is no dispute that the Secretary of Transportation is authorized to issue regulations implementing the CMVSA.(10) See 49 U.S.C.A. App. § 2715. Moreover, there is no contention that the FMCSRs exempt the Respondent or the MVOs involved in this case from their application. See 49 C.F.R. § 383.3 (providing that the regulations apply "to every person who operates a commercial motor vehicle in interstate, foreign, or intrastate commerce, and to all employers of such persons). Finally, the General Counsel does not dispute that, in general, the CMVSA and the FMCSRs prohibit drivers from operating commercial motor vehicles for which they do not hold state CDLs.
The General Counsel's argument that the Respondent was not required to issue NAVFAC P-300 or to rescind its practice of issuing permits for the operation of vehicles for which MVOs did not possess state CDLs is based solely on questions 6 and 7 in the FHA Interpretive Bulletin. See note 6. Noting that question 7 exempts from CDL requirements drivers who operate only within the confines of fenced and guarded property, the General Counsel relies on testimony at the unfair labor practice hearing that the Respondent's facility is highly secure, is protected by security fencing and guards, and is available to the public only through the issuance of security passes. The General Counsel claims that the CMVSA and the FMCSRs, "in effect, stop at the gates to the Respondent's shipyard." Brief in Support of Exceptions at 3 (footnote omitted).
We conclude that the General Counsel's reliance on the Interpretive Bulletin is misplaced. In particular, we find nothing in the wording of questions 6 and 7 that supports a conclusion that a Federal installation, such as the Shipyard, is exempt from the relevant requirements in the CMVSA and the FMCSRs. We emphasize, in this regard, that nothing in the CMVSA or the FMCSRs, implicitly or explicitly, sets forth or recognizes such an exemption.(11)
Question 6 in the Interpretive Bulletin, by its terms, addresses "private property." Moreover, by referring to a "short section of road between the entrance gate and the administrative building[,]" question 7 can reasonably be read as encompassing only purely private (as opposed to public or governmental) property. That the answer to question 7 refers to boundaries of property that is "owned and under the control of the company" supports our interpretation of the question. Had the FHA intended to encompass Federal property such as the Shipyard, it easily could have so indicated.
Based on our reading of the CMVSA and the FMCSRs, we conclude that the MVOs involved in this case are not exempt from the disputed CDL requirements unless, as relevant here, Respondent's facilities are found to constitute "private property." However, the record before us does not provide a basis for such finding. We note that our review of the relevant statutory and regulatory provisions yields no definition of "private property" and the General Counsel offers no such definition. Moreover, absent authority to the contrary, we find it reasonable to conclude that the phrase is intended to encompass only purely privately-owned property. Accordingly, we find that the MVOs involved in this case are subject to the disputed CDL requirements.
Consistent with the foregoing, we reject the General Counsel's argument that, based on questions 6 and 7 in the Interpretive Bulletin, the MVOs involved in this case are exempt from the disputed licensing requirements.(12) Also consistent with the foregoing, we conclude that, at the time the disputed past practice was terminated,(13) the practice was inconsistent with an existing Agency regulation, which was required by statute and Government-wide regulation.(14) In these circumstances, we conclude that when the Respondent terminated its past practice of issuing permits enabling MVOs to operate vehicles for which they did not hold state CDLs, that practice was unlawful.(15) As such, we also conclude, in agreement with the Judge, that the Respondent was not obligated to bargain over the decision to terminate the practice. See DOI, 20 FLRA at 589.
B. Alleged Unlawful Discrimination
At the outset, we reject the General Counsel's claim that the Judge erred in regard to precluding, and admitting, certain evidence. It is well established that the determination of the matters to be admitted into evidence is within the discretion of an Administrative Law Judge under section 2423.19(g) of the Authority's Rules and Regulations. For example, Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 43 FLRA 697, 709 (1991) (U.S. Border Patrol), reversed on other grounds sub. nom. Department of Justice, United States Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas v. FLRA, 991 F.2d 285 (5th Cir. 1993). It also is within the discretion of a judge to determine the relevance of evidence presented. See 5 C.F.R. § 2423.17. In this case, the General Counsel has not established that the Judge abused his discretion by excluding evidence that the Judge found was irrelevant or by admitting evidence that the General Counsel claims is self-serving. See U.S. Border Patrol, 43 FLRA at 709-10.
We also reject the General Counsel's exception that the Judge erred in failing to conclude that the General Counsel established a prima facie case of unlawful discrimination. In Letterkenny Army Depot, 35 FLRA 113 (1990), we addressed the analytical framework that the Authority applies in cases alleging violations of 7116(a)(2) of the Statute. We reaffirmed that the General Counsel bears the burden of establishing by a preponderance of the evidence that an unfair labor practice has been committed. We noted that in all cases of alleged discrimination, the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118.
In this case, the Judge found that the General Counsel did not establish a prima facie case that protected activity was a motivating factor in the Respondent's decision to revoke Roy's permit. The Judge found, instead, that the Respondent withdrew Roy's permit because, in the Respondent's view, it was unlawful for an MVO to hold a permit which did not correspond to an applicable state license. The Judge specifically rejected, based on the Judge's determinations regarding the credibility of witnesses, the General Counsel's allegation that the Respondent's reason for rescinding Roy's permit was pretextual based on the Respondent's actions in connection with Lavoie.
The General Counsel excepts to the Judge's credibility resolutions. However, the demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. As such, we will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Department of the Navy, Naval Facilities Engineering Command, Western Division San Bruno, California, 45 FLRA 138, 155 (1992).
On the basis of the entire record, we conclude, in agreement with the Judge, that the General Counsel failed to establish a prima facie case that the Respondent violated section 7116(a)(1), (2), and (4) of the Statute by its rescission of Roy's permit. Accordingly, we will dismiss those allegations in the complaint.
Although the Respondent was not obligated to bargain over its decision to change its past practice regarding the issuance of permits, there were no exceptions filed to the Judge's determination that the Respondent unlawfully failed to provide the Union notice of the change and an opportunity to bargain over the impact and implementation of the change. As the past practice was unlawful, we will not order a status quo ante remedy. For example, United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1048 (1990). We will direct the Respondent to cease and desist its violation of the Statute and, on request, to bargain with the Union over the impact and implementation of the change.
We deny the General Counsel's request that affected employees be made whole for overtime lost as a result of the Respondent's violation of the Statute. It is clear that backpay may be ordered in situations where status quo ante relief is denied. See Federal Aviation Administration, 42 FLRA 82 (1991). However, backpay is ordered "only where it is clear that the violation has resulted in a loss of some pay, allowances or differentials[.]" U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 292 (1990) (SSA). Moreover, although the Back Pay Act does not require that an employee bear the "burden of demonstrating a 'but for' relationship between the improper refusal to bargain and the loss of pay or benefits[,]" where the effect of a violation "is totally speculative," we will deny backpay. Id. at 289, 292.
This case involves three MVOs whose permits were rescinded. However, the record before us does not support a conclusion that any of these employees suffered a loss due to the Respondent's violation of the Statute. In particular, the record contains evidence only as to the effect of the Respondent's action on Roy and that evidence indicates that, prior to the change, Roy never accepted an overtime assignment. In these circumstances, we find no nexus between the violation and a monetary loss. As such, we will not order backpay. See Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 39 FLRA 1325, 1333-34 (1991). Compare SSA, 37 FLRA at 289-90; U.S. Customs Service, Washington, D.C., 27 FLRA 913 (1987).
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the Portsmouth Federal Employees Metal Trades Council, the exclusive representative of certain of its employees, notice of its decision to cease issuing Government motor vehicle permits and an opportunity to bargain over the impact and implementation of the decision.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request of the Union, bargain, to the extent consistent with law and regulation, over the impact and implementation of its decision to cease issuing Government motor vehicle permits.
(b) Post at its facilities at the Portsmouth Naval Shipyard, Portsmouth, New Hampshire, where 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 Commanding Officer of the Portsmouth Naval Shipyard 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 ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston
Regional Office, Federal Labor Relations Authority in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
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 fail or refuse to provide the Portsmouth Federal Employees Metal Trades Council, the exclusive representative of certain of our employees, with notice of and an opportunity to bargain over the impact and implementation of our decision to cease issuing Government motor vehicle permits.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by our Statute.
WE WILL, upon request, bargain with the Portsmouth Federal Employees Metal Trades Council, to the extent consistent with law and regulation, over the impact and implementation of our decision to cease issuing Government motor vehicle permits.
Date: ______________ By: _________________________
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, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.
(If blank, the decision does not have footnotes.)
1. No exceptions were filed to the Judge's conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union before terminating its past practice and offering the Union an opportunity to bargain over the impact and implementation of the change. Accordingly, we will issue an order remedying that unlawful conduct.
2. No exceptions were filed to the Judge's recommended dismissal of the allegation that the Respondent violated section 7116(a)(1) of the Statute by making a statement regarding the amount of time an employee spent in the Union office. Accordingly, we will not discuss that allegation further and we will dismiss the portion of the complaint which encompasses it.
3. This permit is a "United States Government Motor Vehicle Operator's Identification Card . . . that names the types of Government-owned or leased vehicles the holder is authorized to operate." 5 C.F.R. § 930.102.
4. Section 3.8.6.a.(1)(c) of NAVFAC P-300 provides the following with respect to civilian employees:
When the requirement for employment or their primary responsibility is to operate motor vehicles (e.g., Motor Vehicle Operator (MVO)), they shall have in their possession a valid state . . . license for the type and class of vehicle to be operated either on or off base.
General Counsel Exhibit 3 at 131 (emphasis omitted).
5. The Judge stated that the CMVSA, among other things, provided that "every person who operates a C[ommercial] M[otor] V[ehicle] must hold a state license to operate a class of motor vehicle[.]" Judge's Decision at 19.
6. Article 1(c) of the parties' collective bargaining agreement provides, in pertinent part, that the parties are governed by "[s]ubsequently published . . . Department of Defense and Department of Navy regulations required by law . . . ." Respondent's Exhibit 1 at 2.
7. Questions 6 and 7 of the Interpretive Bulletin provide:
Question 6: Can a person operate a CMV wholly on private property, not open to public travel, without a C[ommercial] D[rivers] L[icense]?
Interpretation: Yes. However, the FHWA expects any driver of a CMV on a public highway, including any street, other road, or way open to the public, to have a CDL as of April 1, 1992.
Question 7: Do CMV drivers need a CDL if they limit their driving to the confines of property separated by a fence and security guards from use by the general public, except on a restricted basis on short section of road between the entrance gate and the administrative building?
Interpretation: No, if the CMV drivers confine their driving to other than public roads. The small road section within the boundaries of the complex that is open to the public is owned and under the control of the company and only allows restricted access to the public. Therefore, the roads in the complex are considered private roads.
Respondent's Exhibit 6 at 2 (emphasis in original).
8. The Judge also rejected the General Counsel's assertions that alleged actions regarding a pencil holder and a coffee pot established animus. In the Judge's view, evidence regarding these actions was "apropos of nothing . . . ." Judge's Decision at 22. The General Counsel does not except to the Judge's characterization of these actions and does not refer or rely on them as a basis on which to establish a prima facie case. Accordingly, we will not consider them further.
9. However, an agency is required to bargain over the impact and implementation of such a change. See Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 17 FLRA 394 (1985).
10. As it is undisputed that the Secretary of Transport