[ v11 p318 ]
The decision of the Authority follows:
11 FLRA No. 67 DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, BOSTON AIR ROUTE TRAFFIC CONTROL CENTER, NASHUA, NEW HAMPSHIRE Respondent and PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFL-CIO, LOCAL 202 Charging Party Case No. 1-CA-423 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action. Exceptions filed by the General Counsel to the Administrative Law Judge's Decision were subsequently withdrawn. /1/ Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, and noting particularly the absence of exceptions, the Authority hereby adopts the Judge's findings, conclusions, and recommendations. /2/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, IT IS HEREBY ORDERED that the Department of Transportation, Federal Aviation Administration, Boston Air Route Traffic Control Center, Nashua, New Hampshire, shall: 1. Cease and desist from: (a) Discriminating against Andrew Ruoff by restricting his right to make voluntary changes in shift assignments and regular days off because an unfair labor practice charge was filed on his behalf or because he gave information to the Authority in support of that charge. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to carry out the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Remove the order regarding the approval of swap requests submitted by Andrew Ruoff, which order was placed in the Night Order Book by William Henderson. (b) Post at its Boston Air Route Traffic Control Center, Nashua, New Hampshire, 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 Facility Chief of the Boston Air Route Traffic Control Center or his designee, and shall be posted and maintained by him 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 of Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., February 10, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discriminate against Andrew Ruoff by restricting his right to make voluntary changes in shift assignments and regular days off because an unfair labor practice charge was filed on his behalf or because he gave information to the Authority in support of that charge. 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. WE WILL remove the order regarding the approval of swap requests submitted by William Ruoff, which order was placed in the Night Order Book by William Henderson. (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, Federal Labor Relations Authority, Region I, whose address is: 441 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone number is (617) 223-0920. -------------------- ALJ$ DECISION FOLLOWS -------------------- Richard F. Fisher For the Respondent Paul E. Stanzler, Esq. Carol Waller-Pope, Esq. For the General Counsel Before: ALAN W. HEIFETZ Administrative Law Judge DECISION Statement of the Case This proceeding arose pursuant to the Federal Service Labor-Management Statute, 5 U.S.C. 7101 et seq., as a result of an unfair labor practice charge filed July 9, 1980, with the Federal Labor Relations Authority. Consequently, on November 5, 1980, the Regional Director, Region 1, of the Authority issued a complaint alleging that Respondent unlawfully restricted the right of employee Andrew Ruoff to make voluntary changes in shift assignments and regular days off because a union filed an unfair labor practice charge on his behalf and because he gave testimony in support of that charge. A hearing was held on December 4, 1980, in Boston, Massachusetts. All parties were afforded full opportunity to be heard, to examine witnesses and to introduce evidence. On January 30, 1981, post-hearing briefs were filed. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions and recommendations. Finding of Fact The Professional Air Traffic Controllers Organization, Local 202 (the Union or PATCO) is the exclusive bargaining agent of Respondent's air traffic controllers. Mr. Andrew Ruoff is a member of the bargaining unit and he has been employed by Respondent for nine years as an Air Traffic Control Specialist. At the Boston Air Route Traffic Control Center (ARTCC), Air Traffic Control Specialists are grouped in teams of approximately ten members and each team has a supervisor. Each assistant chief supervises a group of four teams. ARTCC is in continuous operation and the Air Traffic Control Specialists work rotating shifts on a five week cycle with two of those weeks on a 7 a.m. to 3 p.m. schedule, two other weeks on a 3 p.m. to 11 p.m. schedule, and the fifth week on an 11 p.m. to 7 a.m. schedule. Voluntary shift swapping is governed by Article 35 of the collective bargaining agreement between PATCO and Respondent. It states: The Employer shall approve the exchange of shifts and/or days off by employees of equal qualifications, provided the exchange is consistent with the operational needs of the facility and does not result in overtime or violation of the basic workweek. Requests for exchange of assigned shifts and regular days off are rarely disapproved and the practice of shift swapping at Respondent's facility is widespread and continuous. Swaps are usually made out of preference for working only certain hours or in order to accommodate non-work related activities such as social or athletic events. In order to facilitate shift swapping, the employees developed a book, kept at the watch supervisor's desk, in which an employee may enter his name, the shift and day he is scheduled to work and the shift and day he would prefer to work. An employee who is willing to make the swap enters his name beside the request and takes the swap to any supervisor on duty who officially records the exchange in the facility's master schedule book. Employees at the facility have swapped as much as half of their assigned shifts on a regular basis in order to work nights only. One controller regularly swaps twice a week during the bowling season and an additional two or three times per week during the professional basketball season. The average team member swaps at least twice a month. None of the employees who testified has ever sought authorization to initiate a swap or was required to justify a swap request. Other than in a case involving a swap with Mr. Ruoff, the only turndown of a swap request was grounded on unequal technical qualification as between the two controllers seeking to make the swap. Employees have even swapped teams, with one employee making such a swap for a period of three months. During shift or team swaps employees often miss team briefing sessions. Some have missed more than half of these briefings which, although they have been described as mandatory, cover material which is otherwise available to the employees and are generally conducted in such a dull atmosphere so as to prompt some employees to seek "spot leave" in order to avoid the briefing when it is held while they are on duty. There is no evidence that anyone had ever been disciplined for missing one or more of these briefings. From early 1979 to September of 1980, Andrew Ruoff was assigned to a team supervised by William Henderson. Mr. Henderson, who last rated Mr. Ruoff in February 1980, described him as an above average, technically sound employee. Prior to June of 1980, Mr. Henderson had never discussed with Mr. Ruoff the frequency of his swapping. Mr. Ruoff had been regularly swapping about eight shifts every five weeks. Of the 13 team briefings held during the approximately 18 months he was on Mr. Henderson's team, Mr. Ruoff missed 9 of those meetings. On April 21, 1980, an unfair labor practice charge was filed by the Union on behalf of Mr. Ruoff. The charge alleged that Mr. Henderson, among others, denied Mr. Ruoff the right to be represented during a disciplinary meeting between the two of them. On June 9, 1980, Mr. Henderson was interviewed by an Authority agent as a part of the investigation of the April 21, 1980 charge. Mr. Henderson knew at this time that the agent sought information about the meeting he had with Mr. Ruoff which formed the basis of the unfair labor practice charge. /3/ On the very next day, Mr. Henderson went to the watch desk to make some entries in the leave book and while doing so, decided to look back in the book over the weekend just passed. /4/ It was at this point in time, on Wednesday, June 10, that Mr. Henderson learned that Mr. Ruoff took sick leave on June 7, and that he had swapped shifts in order to be off duty on June 8 and 9. These five consecutive days off duty became the ostensible reason for a meeting with Mr. Ruoff called by Mr. Henderson. However, it should be noted at this juncture, that four days before that meeting, and two days after the check of the leave book, Mr. Ruoff met with the Authority agent to give him a statement in regard to the April 21 unfair labor practice charge. On June 14, 1980, Mr. Ruoff received a note from Mr. Henderson stating that Mr. Ruoff should request no more swaps and that none would be approved until the two of them had met. The meeting took place on June 16. Mr. Henderson advised Mr. Ruoff that he would no longer honor his swap requests unless they were of an imperative or urgent need and that no other supervisor could approve his swap requests. He explained that the restriction was necessary because Mr. Ruoff's swapping had become excessive, he missed too many team briefings which was detrimental to the crew concept, and it was becoming increasingly more difficult to evaluate his performance on a day-to-day basis. Since that meeting, and for the remainder of the summer, all swaps requested by Mr. Ruoff were denied by Mr. Henderson. Mr. Henderson also made an entry in the night order book /5/ that no supervisor should approve a shift swap involving Mr. Ruoff without first checking with Mr. Henderson. /6/ On June 23, 1980, Mr. Henderson wrote a memorandum for the record in which he requested that Mr. Ruoff desist from shift swapping unless the request was "urgent or emergency" in nature. Two of his superiors told Mr. Henderson that he could not make a blanket restriction on shift swapping and that, in accordance with the contract, any restriction would have to be based on operational needs. Mr. Henderson was told to rescind the words "urgent or emergency" and to communicate the recission to Mr. Ruoff. He never did. /7/ On June 27, 1980, Waldo B. Cumings, a union official, came to Mr. Ruoff's work area with written communications from the Authority concerning the charge which was filed in April. As they were discussing the material, Mr. Henderson approached and said, "Cumings, get your PATCO shit out of here. /8/ When Cumings tried to explain that he had official business to discuss with Mr. Ruoff, Mr. Henderson conveyed his indifference to the subject matter and ordered Mr. Cumings to leave. Mr. Cumings obliged. Discussions and Conclusions The General Counsel argues that to support a violation of Section 7116(a)(4) of the Statute, one must show that the employee was engaged in protected activity, that the employer has knowledge of that protected activity, and that the employee has suffered disparate treatment as a result of his protected activity. Respondent does not take issue with this legal standard. It admits that Mr. Ruoff was engaged in protected activity (the filing of and making a statement in furtherance of an unfair labor practice charge), but it takes the position that the General Counsel has failed to satisfy its burden of proof as to the other elements which are necessary to the constitution of a violation. There is no question on the record that Respondent, and Mr. Henderson in particular, was aware of the protected activity engaged in by Mr. Ruoff. The charge itself mentions Mr. Henderson by name and refers to an incident by specific date. Although Mr. Ruoff's name was not mentioned in the charge, the circumstances outlined in the charge make it clear that the employee involved was Mr. Ruoff. In any event, there can be no doubt of Mr. Henderson's knowledge as of June 9, 1980, when he was interviewed by an Authority agent concerning the substance of the April charge. In any event, Mr. Henderson's memory of the events was, at best, hazy and he could not specifically deny knowledge of Mr. Ruoff's protected activity when he testified in the instant case. As to the next issue, disparate treatment, there also can be no doubt on this record. First of all, shift swapping at this facility is the norm and not the exception. Some employees attempt to work nights exclusively, and some attempt to work only days. One employee swaps his night shift four to five times per week in order to bowl and to attend professional basketball games. One employee even swapped crews for three months and then swapped shifts several times while on the substitute crew. Mr. Henderson himself has not worked a midnight shift for at least a couple of years. Second, it is clear that team briefings are attended, but not well attended. As mr. Henderson admitted, the average attendance hovers at seventy-five percent. Two employees other than Mr. Ruoff testified that they attended half or less than half of the scheduled briefings. Others testified that they were granted "spot leave" which they requested specifically in order to miss a dull briefing. Most of the information discussed in a briefing also appears in a written log which may be read when convenient. Finally, even if one were to surmise that Mr. Ruoff was the most profuse in his exercise of the swapping right, there is no statistical evidence from which reliable comparison may be made between his swap frequency and that of other similarly situated employees. The General Counsel having introduced evidence that shift swapping is generally extensive, it is incumbent upon Respondent to come forth with evidence which would tend to show that Mr. Ruoff's history is egregious. This Respondent has not done. I conclude that, on the basis of this record, to single out Mr. Ruoff for restrictive treatment while other similarly situated employees are engaging in substantially similar conduct is to treat him disparately. The final question is whether the disparate treatment accorded Mr. Ruoff resulted from his engaging in protected activity. To support an affirmative answer, the General Counsel argues that the severity and timing of the restriction along with Mr. Henderson's stated rationale for the restriction are persuasive. Respondent correctly contends that mere suspicion is not enough to support a finding. /9/ The question is not whether there is lawful justification for the restriction, but rather whether the true reason for the restriction was his protected activity. That determination need not be based on direct evidence alone. As stated in Shattuck Denn Mining Corp., (Iron King Branch) v. NLRB, 362 F.2d 466 (9th Cir. 1966): Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstance proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. (362 F.2d at 470.) Commenting that the trier of fact need not be naive, /10/ the Court in Shattuck went on to posit that, "If he finds that the stated motive . . . is false, he certainly can infer that there is another motive." In the instant case, the rationale for placing the restriction on Mr. Ruoff sprang from Mr. Henderson's review of the leave book. That was when Mr. Henderson found that by swapping regular days off and taking one day of sick leave, Mr. Ruoff managed to be off five days in a row. Mr. Henderson, testified that he suspected that Mr. Ruoff had abused sick leave. However, Mr. Henderson was not able fully to explain or justify his suspicion of an abuse of sick leave. He couldn't recall why he went to the leave book in the first place; he couldn't recall who first made a remark about five days off in a row; he did not attempt to confirm the running of a road race as alleged by another employee; /11/ he failed to confront Mr. Ruoff with the allegation; and he failed to take direct action under the provision on sick leave in the collective bargaining agreement. On the other hand, Mr. Ruoff communicated to him his denial of an abuse of sick leave and he pointed out his good sick leave record to Mr. Henderson. Finally, Mr. Henderson failed even to mention sick leave to Mr. Ruoff during his explanation of why he was imposing the restriction on swapping. I conclude that justification of the restriction on the basis of an abuse of sick leave, under the circumstances of this case, is pretextual. Another justification for the restriction was that it was becoming increasingly more difficult for Mr. Henderson to evaluate Mr. Ruoff's day-to-day performance. However, Mr. Henderson had failed even to mention this concern four months earlier during his last evaluation of Mr. Ruoff. Mr. Ruoff had been swapping extensively for the entire year covered by that evaluation. Significantly, Mr. Henderson voiced no concern over day-to-day evaluation of those other employees under his supervision who also swap extensively. Since Mr. Henderson swaps his own midnight shifts, he apparently concedes that at least one-fifth of the team's working hours need not be evaluated in person. I conclude that justification of the restriction on the basis of a need for greater day-to-day performance evaluation, under the circumstances of this case, is pretextual. Finally, the justification was offered that excessive swapping resulted in missing too many team briefings and that that was detrimental to the "crew concept". A definition of the "crew concept" as far as the record in this case is concerned has been as elusive as the Holy Grail. It appears to be intended as something more than a mere "esprit de corps" but something less than an integrated operational unit with defined individual functions. Given the fact that a member of the "crew" does not have to give reasons for shift swapping and that personal, social, athletic or whimsical concerns may motivate a shift swap, the "crew concept" at this facility is either a figment of someone's imagination or, at best, an idea whose time has come and gone. It is apparent that Air Traffic Control Specialists of equal qualifications are fungible. It is also apparent that missing a team briefing is of no great moment. What is important is that the Air Traffic Control Specialist familiarize himself with the information disseminated at those briefings. There is no suggestion on this record that Mr. Ruoff or any other controller on his team has not so familiarized himself. I conclude that justification of the restriction on the basis of need to preserve the "crew concept" is, under the circumstances of this case, pretextual. Affirmative evidence of animus may be seen from the severity and timing of the restriction. Like a storm out of the Nor' east, the restriction came quickly, with little or no warning, and with chilling effect. Whereas the collective bargaining agreement speaks to operational needs and overtime as standards for swap approvals, Mr. Henderson sought to restrict Mr. Ruoff to a standard of "urgent or emergency" need. And this without so much as counsel, caution, or compromise. Other employees who swap forty percent of the time and miss half of the team briefings have gone totally unrestricted. Two of Mr. Henderson's superiors told him that the "urgent or emergency" standard was too severe and that it would have to be rescinded. This was no surprise to Mr. Henderson for he had been overruled on two previous occasions when he attempted to impose similar swapping restrictions at other facilities. In other words, he fully appreciated the severity of his actions in this case. The check of the leave book came two days after Mr. Henderson was interviewed by an Authority agent in regard to an unfair labor practice charge by Mr. Ruoff against Mr. Henderson. Two days after Mr. Ruoff met with the Authority agent, he received a note from Mr. Henderson stating that no more swaps would be approved until they met. Two days after the note, the "urgent or emergency" standard was put into effect. One week later, Mr. Henderson wrote his memorandum to the file requesting approval of that standard. He was told that the standard was too severe and that he would have to rescind it. Four days after writing the memorandum Mr. Henderson confronted the union official talking to Mr. Ruoff at his work station and told him, in no uncertain term, what to do with his union material. Standing alone, none of these facts conclusively demonstrates animus. However, when one considers all of the factors just discussed in light of my conclusion that the proffered justifications for the restriction were merely pretexts, the compelling inference is, and I find, that the true motivating force behind the restriction was the protected activity engaged in by Mr. Ruoff. Having found that the General Counsel has met its burden of showing that the protected conduct was the motivating factor in the decision to restrict Mr. Ruoff's swapping rights, I conclude that this is a "pretext case" and not a "dual motive case" which would allow Respondent to come forward and show by a preponderance of the evidence that it would have imposed the restriction even in the absence of the protected activity. /12/ Even if I were to conclude otherwise, on this record, Respondent would not carry that burden. Mr. Ruoff's conduct has been substantially similar to that of other employees who have not had their swapping so much as questioned. While Respondent has introduced some evidence bearing on the facially lawful justifications of sick leave abuse, personnel evaluation needs, and impact on air safety, I conclude that such evidence has either been rebutted or, as discussed above, has been shown merely to amount to a pretext for the action taken against Mr. Ruoff. No abuse of sick leave was proven and there was no evidence which would justify a finding that Mr. Ruoff could not be evaluated any less easily than he had been just the previous February. While the "crew concept" may have had, or may have in the future, some demonstrable significance to the working conditions at Respondent's facility, it should not be used as a sword of Damocles, suspended by the thin hair of caprice over the heads of employees for the purpose of discouraging their free exercise of protected activity. Having found that employee Andrew Ruoff was engaged in protected activity, that Respondent had knowledge of that protected activity, and that Andrew Ruoff has suffered disparate treatment as a result of his protected activity, and having concluded therefore that Respondent violated Sections 7116(a)(1) and (4) of the Statute, I recommend that the Authority issue the following order: ORDER Pursuant to Section 7118(a)(7)(A) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section 2423.29(b)(1), the Authority hereby orders that the Department of Transportation, Federal Aviation Administration, Boston Air Route Traffic Control Center, Nashua, New Hampshire, shall: 1. Cease and desist from: (a) Discriminating against Mr. Andrew Ruoff by restricting his right to make voluntary changes in shift assignments and regular days off because an unfair labor practice charge was filed on his behalf and because he gave information to the Authority in support of that charge. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Post at its facilities at Nashua, New Hampshire, copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Boston Air Route Traffic Control Center Facility Chief and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices are customarily posted. Reasonable steps shall be taken to ensure that the notices are not altered, defaced or covered by any other material. (b) Remove the order regarding the approval of swap requests submitted by Andrew Ruoff which was placed in the Night Order Book by William Henderson. (c) Notify the 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 the Order. ALAN W. HEIFETZ Administrative Law Judge Dated: March 3, 1981 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discriminate against Mr. Andrew Ruoff by restricting his right to make voluntary changes in shift assignments and regular days off because an unfair labor practice charge was filed on his behalf and because he gave information to the Authority in support of that charge. 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 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 I, 441 Stuart Street, 8th Floor, Boston, Massachusetts 02116 --------------- FOOTNOTES$ --------------- /1/ While the Authority, after the Judge issued his decision in this case, revoked the exclusive recognition status of the Charging Party (PATCO) and thereafter dismissed certain complaints involving the statutory rights and responsibilities of PATCO as a labor organization as moot on the basis that any decision rendered in such cases could not have any practical legal effect (see, e.g., Professional Air Traffic Controllers Organization, AFL-CIO, Local 216, 11 FLRA No. 16 (1983); United States Department of Transportation, Federal Aviation Administration, Southwest Region, 11 FLRA No. 18 (1983)), the Authority concludes that the instant case has not been rendered moot. Thus, in contrast to the above-cited cases, the statutory rights of individual employees are involved herein, and an order requiring the Respondent (FAA) to take appropriate action in order to remedy the unfair labor practices found to have been committed against the employees' statutory rights would have practical legal effect and is deemed necessary to effectuate the purposes and policies of the Statute. /2/ In concluding that the Respondent unlawfully discriminated against employee Andrew Ruoff as a result of his having engaged in protected activity under the Statute, and that the reasons asserted by the Respondent for such conduct were mere pretexts, the Judge relied on private sector cases. The Authority has applied the same principles in reaching such results under the Statute. See, e.g., Internal Revenue Service, Boston District Office, Boston, Massachusetts and Internal Revenue Service, Andover Service Center, Andover, Massachusetts, 5 FLRA No. 96 (1981); United States Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA No. 97 (1981). /3/ Although Mr. Henderson was not sure if the agent mentioned that he was going to speak to Mr. Ruoff about the matters under investigation, there can be no doubt that after his conversation with the agent, Mr. Henderson would assume that the agent would take a statement from the person upon whose behalf the charge was made. /4/ Mr. Henderson first testified that he didn't recall for what reason he looked back through the leave book. He then stated, "I became suspicious or I had reason to believe that he was not on sick leave." Later he referred to an unidentified person who remarked at the watch desk while Mr. Henderson was at the book, "Oh, five days in a row.", referring to the consecutive days Mr. Rouff had been off. Mr. Henderson did not know how this unidentified person had any knowledge of Mr. Rouff's leave record. It was not until after he had closed the leave book that Mr. Henderson was approached by an employee, later identified as Mr. Kawaski, who told Mr. Henderson that he had seen Mr. Ruoff dressed in running attire with his wife at a road race in Mason, New Hampshire. Later evidence conclusively showed that the race in Mason did not take place during this five day period. I conclude that Mr. Henderson's testimony itself does not reveal the motive for his perusal of the leave book before any conversations he may have had with others at the facility. /5/ The night order book is a communication medium between supervisors. /6/ In September, 1980, Mr. Ruoff left Mr. Henderson's team and he is no longer under the same swap restrictions. /7/ Mr. Henderson originally testified that he did communicate the recission to Mr. Ruoff. However, after being confronted with his affidavit, Mr. Henderson changed his testimony. /8/ Mr. Henderson denied making this statement but he did acknowledge telling Cumings to leave the area. I credit the testimony of Messrs. Cumings and Ruoff who both heard the statement including the scatological reference. At the hearing, and in a footnote to the brief, the General Counsel moved to amend the complaint to allege a violation of the Statute arising out of this incident. The motion was denied at the hearing and no persuasive argument has been raised in the brief which would warrant a reversal of that ruling. /9/ See e.g., NLRB v. Montgomery Ward & Co., Inc., 157 F.2d 486, 491, (8th Cir. 1946). /10/ 362 F.2d at 470, n. 15: "Judges are apt to be naif, simple-minded men, and they need something of Mephistopheles." (Holmes, Law and Court, in Speeches, 102 (1913); "Credulity is not esteemed a paramount virtue of the judicial mind." (Huston, J., in Rankin v. Jauman, 1895, 4 Idaho 394, 401, 39 P. 1111, 1113.) /11/ The failure to call this employee as a witness further undermines any assertion that the information about a road race (determined by other evidence of record to be false) motivated Mr. Henderson's later actions. /12/ See, Wright Line, A Division of Wright Line, Inc., 251 NLRB No. 150 (1980), 105 LRRM 1169 (wherein the NLRB adopted the causation test enunciated by the United States Supreme Court in Mt. Healthy City School Dist. v. Doyle, 249 U.S. 274 (1977), and abandoned use of the term "in part" in determining the relationship, if any, between employer action and protected employee conduct.