DEPARTMENT OF ENERGY, WESTERN AREA POWER ADMINISTRATION, ROCKY MOUNTAIN REGION, LAKEWOOD, COLORADO AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2159

 

                                                           FEDERAL LABOR RELATIONS AUTHORITY             OALJ 14-11
       Office of Administrative Law Judges
                                                                 WASHINGTON, D.C.
 
 
 
 
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
ROCKY MOUNTAIN REGION
LAKEWOOD, COLORADO
 
                                          RESPONDENT
 
 
 
 
 
 
Case No. DE-CA-10-0356
 
AND
         
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2159
 
                                       CHARGING PARTY
                              
 
 
Paige A. Swenson
               For the General Counsel
 
Douglas N. Harness
                For the Respondent
 
Preston Lauderbach
                For the Charging Party
 
Before:    SUSAN E. JELEN     
                Administrative Law Judge
 
 
DECISION
 
  STATEMENT OF THE CASE

This case arose under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. §§ 7101-7135 and the revised Rules and Regulations of the Federal Labor Relations Authority (Authority), Part 2423.
 
Based upon an unfair labor practice charge filed by the International Brotherhood of Electrical Workers, Local 2159 (Union), a Complaint and Notice of Hearing was issued by the Regional Director of the Denver Regional Office. The complaint alleges that the Department of Energy, Western Area Power Administration, Rocky Mountain Lakewood,        Colorado (Respondent) violated § 7116(a)(1) and (2) of the Statute when it proposed and issued a disciplinary action against a bargaining unit employee in retaliation for his protected activity under § 7106(a)(1) of the Statute. (G.C. Ex. 1(c)). The Respondent timely filed an Answer denying the allegations of the complaint. (G.C. Ex. 1(d)).
           
A hearing was held in Denver, Colorado on February 24, 2011, at which time the parties were afforded an opportunity to be represented, be heard, examine and cross-examine witnesses, introduce evidence, and make oral argument.  The General Counsel and Respondent filed timely post-hearing briefs that have been fully considered.
 
Based upon 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
 
            The Department of Energy, Western Area Power Administration, Lakewood, Colorado (Respondent) is an agency within the meaning of 5 U.S.C. § 7103(a)(3). (G.C. Exs. (c) & 1(d)).  Steve Upton has served as the Respondent’s Division Maintenance Manager since March 16, 2008, and is a supervisor and/or management official under 5 U.S.C. § 7103(a)(10) and (11). (G.C. Exs. 1(c) & 1(d); Tr. 90). Kevin Howard is the regional maintenance manager of the Rocky Mountain Region. (Tr. 119).
 
The International Brotherhood of Electrical Workers, Local 2159 (IBEW/Charging Party) is a labor organization under 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent. (G.C. Exs. 1(c) & 1(d)). Preston Lauderbach is currently the Government Coordinating Council (GCC1) representative. (Tr. 16). Warren Lee Austin was the GCC1 representative during the January 2010 time frame. (Tr. 53). Michael Rumbaugh is an electrician and a member of IBEW 2159. He has served as the Union’s treasurer, financial secretary, and GCC1 delegate. He has also served as a steward and as chief negotiator on various issues, including the flame retardant clothing policy during 2009 through 2010. (Tr. 69-72). He has been a member of the Union’s executive board, an elected position, since June 2008, and was in this position in January 2010. (Tr. 70).
 
Each year Respondent’s employees are required to undergo physical examinations. The electrical crew located at the Montrose Station underwent these physicals in October and November 2009, at a facility contracted by the Respondent. Apparently, there were problems with some of the physicals and with the “quality” of the blood draws. On December 30, 2009, Elaine Stewart, Administrative Aide, sent an email to various employees at the Montrose location, and specifically to the electricians, including Lauderbach, Rumbaugh, and Joseph Hobbs. Her email informed the employees that the hospital had messed up and the employees needed to go back to the hospital to have some more blood drawn. The employees were unhappy that they had to have blood drawn again and both Rumbaugh and Lauderback spoke to Austin, Union steward, about the issue. Rumbaugh suggested and Austin agreed that he would seek legal advice from IBEW. (G.C. Ex. 2; Tr. 19, 40-41, 54-55, 73-74).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      
 
            On Monday, January 4, 2010, the electrician crew met in their office for a safety meeting prior to leaving on an extended work trip to Four Corners. It is the usual practice for employees to have a general meeting on Mondays, to discuss various work issues, including safety matters. Present at the beginning of the meeting were Warren Austin, the Union steward, Joe Hobbs, the first-level supervisor (who apparently is also in the bargaining unit), Mike Rumbaugh, Preston Lauderbach, and other electricians. The employees discussed the notice that they would have to have blood drawn again and Austin indicated that he would contact IBEW for legal advice on the issue. The employees then discussed a few work matters until Steve Upton, their second-level supervisor and Division Maintenance Manager, and Ken Schriner, the safety specialist (who is a bargaining unit employee of an AFGE bargaining unit) arrived. (Tr. 21-22, 41, 56-57, 74-75).
  
            Although there are some discrepancies in testimony, it appears that Upton first discussed some work related matters and then told the assembled employees that there had been an error with the initial blood draws and that they should all return to the hospital to have their blood drawn prior to leaving Montrose for Four Corners. At that time, the statements at issue in this matter occurred. (Tr. 23, 42, 58, 76, 92-93).
 
            The Union witnesses testified that Mike Rumbaugh began to talk and first said “No” or “Nah”. Before he could get any other words out, Upton repeated that the employees were to report to the hospital and get their blood drawn. Rumbaugh again started to speak and said “No” or “Nah” again. He was interrupted by Upton again, who leaned over Austin’s desk, pointed his finger at Rumbaugh and said something to the effect that you will go to the hospital and get blood drawn. The employees testified that Upton appeared agitated and acted in a very aggressive manner. Upton and Schriner then left and the meeting ended. (Tr. 23-24, 42, 58-59, 76-77).
 
            Rumbaugh testified that he was trying to tell Upton that the employees were seeking legal counsel from the Union about the additional blood draws, but it is clear that he was never actually able to say those words. (Tr. 76-78).
 
            Upton and Schriner testified that Rumbaugh said, on three separate occasions, “No, it ain’t going to happen”, or words to that effect. (Tr. 93-94, 113).
  
            Following the meeting, Upton sent emails to the electricians, stating “Per our conversation this morning during the safety/planning meeting, you’ll need to go back to the hospital today and have your blood drawn again. Sorry for any inconvenience this may cause but we need to get this done to meet the requirements of your annual physicals.” (G.C. Exs. 3 & 4). Preston Lauderbach responded by email that evening (7:41 p.m.) and said “At this time I am awaiting approval from the IBEW Rep. on additional blood work. When this issue is settled I do not have a problem complying with your request.” (G.C. Ex. 3). Mike Rumbaugh also responded that same day (at 4:05 p.m.), stating “At this time we are seeking legal counsel on the subject from our union. We won’t be able to come back to Montrose until the 14th.  I am relatively positive that the issue will be cleared up by the time we get back home.” (G.C. Ex. 3; Tr. 27-28, 78-79, 94).

             Sometime after January 14, all of the electricians, including Rumbaugh, had their blood drawn in order to complete their annual physicals. 

 
            On March 11, 2010, Upton notified Rumbaugh that he should get his Union representative because Upton was going to be giving him a Notice of Proposed Suspension. (Tr. 81). Later that same day, Upton, Rumbaugh, and the Union steward met, and Upton issued Rumbaugh a Notice of Proposed Suspension, which was for two workdays (20 hours) for insubordinate defiance of authority. The Notice stated, in part:
 
I told everyone at the meeting that even though the hospital had made a mistake on the blood test, it was necessary for them to return to the hospital for another blood draw so that their annual physicals could be completed as required. Your response to my request was, “No, it’s not happening.” Looking directly at you and making eye contact with you, I once again said that those affected needed to have blood redrawn so we could complete the annual physical requirement. Again, your response was, “No, not going to do it.” I then responded by telling you and the group that I expected everyone to return to the hospital and get their blood drawn before leaving town that day for other work activities. Your last verbal response to me was, “Not going to happen.”
 
The defiance and insubordination you demonstrated at the Montrose electrician crew safety and planning meeting was carried out in the presence of the entire Montrose electrician crew and the Western Colorado Safety Specialist. You were the only employee that openly expressed your intention to disregard my order. Your actions have the potential to seriously undermine management’s ability to direct the workforce.
 
(Jt. Ex. 1).
 
The Notice further stated:
 
I specifically considered the nature and seriousness of the offense. During the Montrose electrician crew safety and planning meeting, you chose to voice your refusal to follow management direction in the presence of your peers, your foreman and the safety specialist, effectively undermining management’s ability to provide proper direction to the workforce. I also considered that I had previously counseled you that insubordination is unacceptable and any future act of insubordination could lead to disciplinary action. This counseling occurred in January, 2009, when you defiantly used a hand held voltage meter after I ordered you not to. As a mitigating factor, I considered your 23 years of Federal service.
 
(Jt. Ex. 1 at 2).
 
            Rumbaugh, responded to the proposed suspension on March 22, 2010, to Kevin Howard, Regional Maintenance Manager for the Rocky Mountain Region. (Jt. Ex. 2). 
           
            On May 10, 2010, Howard issued the Notice of Decision on Proposed Suspension, stating “I believe the charges against you are sustained by a preponderance of the evidence. However, in taking into consideration mitigating circumstances of your long tenure with Western without previous formal disciplinary action, I have decided that a letter of reprimand should have the desired corrective effect and promote the efficiency of the service. Future misconduct on your part may result in more severe disciplinary action, up to and including your removal from the Federal service.” (Jt. Ex. 3 at 2).
 
            The Union filed a grievance on behalf of Rumbaugh on May 17, 2010. (Jt. Ex. 4). An arbitration was conducted and Arbitrator John A. Criswell issued his award on December 6, 2010, on the issue of whether the discipline taken against Rumbaugh was timely. (Jt. Ex. 5). Arbitrator Criswell sustained the grievance and determined that, as a remedy, the reprimand would remain in effect until May 31, 2011, at which time, if the grievant had not been subject to any further sustainable accusation of misconduct, the written reprimand would be withdrawn and removed from his file. Counsel for the General Counsel noted in her opening statement that the written reprimand had been removed as of May 31, 2011, and the General Counsel was not seeking any further remedy with regard to the reprimand itself. 
 
POSITIONS OF THE PARTIES
 
General Counsel
 
            Counsel for the General Counsel (GC) asserts that the Respondent violated § 7116(a)(1) and (2) of the Statute by first proposing to discipline and then by actually disciplining Michael Rumbaugh. The GC asserts that Rumbaugh was engaged in protected activity when he attempted to explain the Union’s concerns about the employee physicals during a safety meeting. The GC rejects the Respondent’s assertion that Rumbaugh could not have been engaging in protected activity since he was not on the list of stewards provided to the agency by the Union. The GC acknowledges that Rumbaugh was not on the list of designated stewards, but notes that Rumbaugh served as one of the Union’s point of contact for negotiations with Howard over the new fire retardant clothing policy and that Howard had acknowledged Rumbaugh was a steward even though he had not received any official notification from the Union until April 2010. (G.C. Ex. 7; Tr. 125). Upton was also aware of Rumbaugh’s activities regarding the negotiations over the fire retardant clothing policy. (Tr. 98). 
 
            The GC asserts that Rumbaugh was attempting to raise a Union concern about subjecting the electricians’ crew to additional blood testing at the January 4 meeting. The GC asserts that Upton was aware he was going to face resistance from the crew regarding the additional blood draws. If he had not been so rudely and unprofessionally interrupted by Upton, Rumbaugh would have been able to clarify that the Union was seeking legal advice. GC asserts that the first prong of the Letterkenny test is satisfied and that Rumbaugh was involved in protected activity and that both Howard and Upton were aware of this conduct.
 
            The GC also argues that there is no doubt that, but for Rumbaugh’s speaking up during the January 4 safety meeting, he would not have received the proposed suspension and eventual letter of reprimand. Both the suspension and the letter of reprimand specifically refer to Rumbaugh’s alleged insubordinate conduct on January 4, providing the necessary connection between Rumbaugh’s protected activity and the discipline. 
 
            In anticipation of the Respondent’s defense, the GC further argues that Rumbaugh’s conduct during the January 4 safety meeting did not constitute flagrant misconduct. Upton raised the issue of the blood tests at the meeting and Rumbaugh was merely attempting to respond and to voice his and the other employees’ concerns. Further, he was attempting to inform Upton of the Union’s request for legal advice, but was unable to do so since Upton rudely interrupted him. Also, Rumbaugh’s conduct did not exceed the broad scope of intemperate behavior that remains within the protection of the Statute. The evidence clearly shows that Rumbaugh did not raise his voice or use inappropriate language or gestures.
 
            Finally, the Respondent failed to establish a legitimate justification for reprimanding Rumbaugh for “insubordinate defiance of authority.” The GC asserts that the Respondent inappropriately relied on a 2009 counseling for insubordination. 
 
Respondent
 
            The Respondent asserts that the claim that Rumbaugh was engaged in protected activity at the January 4 meeting is an after-the-fact contrived effort to try and free him from the ramifications of his misconduct. Rumbaugh had no representational authority to speak on behalf of the Union and therefore he was not engaged in protected activity.   Even if he was engaged in protected activity, his blatant insubordination towards his supervisor in front of co-workers clearly exceeded the bounds of protected activity. There is absolutely no evidence that his protected activity was a motivating factor in the agency’s decision to discipline him for insubordination. 
 
            The Respondent argues that the agency’s motivation in disciplining Rumbaugh was not to punish him for participating in activity that may be of interest to the Union, but was for the legitimate purpose of keeping order in the work place. The Respondent notes that the other employees who were subject to Upton’s orders were not disciplined even though they did not immediately comply with the orders because they were not publicly and blatantly insubordinate like Rumbaugh. Further, the deciding official on the discipline, Howard, was also the agency’s representative for the fire retardant clothing issue for which Rumbaugh was the designated union representative at the time. However, Howard did not sustain or increase the suggested penalty but reduced it. 
 
            In short, the Respondent argues that the GC has not met its burden of proof that Rumbaugh was engaged in protected activity and that the activity was a motivating factor in the agency’s decision to discipline him. For the sake of argument, even if it was protected activity, the law is clear he exceeded the bounds of protected activity and the agency had a legitimate basis to discipline him for his insubordination. 
 
ANALYSIS AND CONCLUSIONS
 
Preliminary Issues
 
            The Respondent asserts that allegations not raised in the complaint should not be considered and are without merit. 
 
The Respondent asserts that, at the hearing the GC raised new allegations of wrongdoing against the Respondent, namely that it was somehow improper to cite a prior counseling in the proposal and to do so violated the agency’s workforce discipline order. The Respondent further asserts that the GC may also argue other matters not raised in the complaint – that the discipline was in retaliation for testimony at an arbitration hearing on March 9, 2010, and that the discipline was untimely. A consideration of any of these allegations is improper. U.S. Dep’t of Agric., U.S. Forest Serv. Frenchburg Job Corps, Mariba, Ky., 46 FLRA 1375(1993) (the authority will not review allegations that are not encompassed by the complaint).
   
            The evidence reflects that the GC did not amend the complaint to add any additional allegations against the Respondent. In agreement with the Respondent, allegations not raised in the complaint are not properly before me and will not be considered. I further note that the GC did not raise the issue of timeliness or that the discipline was in retaliation for testimony at an arbitration hearing on March 9, 2010, in its brief and such arguments will not be considered. The GC, however, did argue that the prior counseling mentioned in the proposed discipline was not known to Rumbaugh and should not have been used in the proposed discipline for a number of reasons. This argument was part of the GC’s argument that the Respondent did not meet its burden of establishing that it would have disciplined Rumbaugh regardless of his protected activity and is considered in this decision in that context. 
 
                                                                              Analysis
 
            In Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Authority established the analytical framework for reviewing allegations of discrimination under § 7116(a)(2) of the Statute.  Under that framework, the General Counsel (GC) has the burden to establish by a preponderance of the evidence 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 connection with hiring, tenure, promotion, or other conditions of employment.   Id. at 118. Whether the GC has established a prima facie case is determined by considering the evidence on the record as a whole, not just the evidence presented by the GC. Dep’t of the Air Force, AFMC, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 55 FLRA 1201, 1205 (2000). The timing of a management action is a significant factor in determining whether the GC has established a prima facie case of discrimination. VAMC, 60 FLRA at 319; U.S. Dep’t of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, Cal., 38 FLRA 567, 568 (1990); Dep’t of the Air Force, Ogden Air Logistics Ctr., Hill AFB, Utah, 35 FLRA 891, 900 (1990).

 

 
Once the GC makes the required prima facie showing, a respondent may seek to establish the affirmative defense that:  (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity. If the respondent establishes an affirmative defense, then the Authority will conclude that the GC has not established a violation of the Statute. U.S. Dep’t of Transp., FAA, Wash., D.C., 64 FLRA 410 (2010). 
 
            The first question in this matter is whether or not Rumbaugh was engaged in protected activity. The evidence is clear that Rumbaugh is active in the Union and has had extensive responsibilities as a Union representative both before and after the January 4 meeting. He was a member of the Union’s executive board and was the designated Union representative on the negotiations with management over the fire retardant clothing policy, which was ongoing during this period of time. The evidence is also clear that Rumbaugh was not present at the January 4 meeting in any Union capacity. He was present as a member of the electricians’ crew, sitting at his own desk during a regularly scheduled safety meeting. Upton would not have considered him the Union representative for this particular meeting, since Austin was present in that capacity. 
 
            The GC elicited considerable testimony about what Rumbaugh was hoping to say when he responded to Upton’s order – specifically that the employees and the Union were concerned about the additional blood testing and that they were seeking a legal opinion from the Union – but none of that information was ever put forth during the meeting. Instead, what Rumbaugh was able to say – three separate times before he was stopped each time by Upton – was some form of “No”.[1] It is only later that same day, in his response to Upton’s email about the blood testing, that both Rumbaugh and Lauderbach express the Union’s concerns about the repeat testing and the anticipated request for a legal opinion from IBEW. 
 
            Considering the evidence in its entirety, I find that Rumbaugh was not engaged in protected activity during this meeting and therefore, the GC has failed to meet its initial burden of proof. As set forth above, Rumbaugh was not present at the meeting in a Union capacity and the attempts to characterize his actions after the fact fall short. Merely being active in the Union is not sufficient under these circumstances. 
 
            Even assuming, however, that Rumbaugh was engaged in protected activity, I do not find that the GC has established that Rumbaugh’s “protected activity” was a motivating factor in the proposed and final discipline. In that regard, it is clear that by the time the proposed discipline is issued, the Respondent is aware that the employees had gone to the Union over the issue of the blood testing and were seeking to delay the repeat testing. None of the employees were disciplined for this conduct; only Rumbaugh was disciplined but for his conduct towards his supervisor during the meeting rather than his concern over the repeat testing.
 
            While I agree with the GC that Rumbaugh did not use any intemperate language, it is also clear that he repeatedly told his supervisor that he was not going to obey the order regarding the repeat testing. 
 
            Therefore, I find that the General Counsel failed to establish a violation of the Statute as alleged and recommend that the complaint in this matter be dismissed. 
 
ORDER
 
            It is ordered that the complaint be, and hereby is, dismissed.
 
 Issued, Washington, D.C., June 26, 2014     

                                                                                                           _______________________________

                                                                       &n