[ v21 p53 ]
The decision of the Authority follows:
21 FLRA No. 12 DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD PORTSMOUTH, NEW HAMPSHIRE Respondent and DENNIS R. LACROIX, An Individual Charging Party Case No. 1-CA-40151 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and the Respondent filed an opposition to the General Counsel's exceptions. 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, the Authority hereby adopts the Judge's conclusion and recommended Order. In adopting the Judge's conclusion that the complaint should be dismissed herein, the Authority notes particularly that the record evidence does not establish that the employee herein was discriminated against or interfered with because he filed grievances or engaged in other protected activity. More specifically, the Authority finds, as did the Judge, that there was no evidence of union animus on the part of the supervisor herein; that the record evidence did not show any relationship between the grievances filed by the employee herein and his allegedly lowered 1983 performance appraisal rating; and that no correlation was shown between the employee's complaint to his union representative concerning the work assignments given to certain employees and his 1983 performance rating. Accordingly, the Authority concludes that the General counsel has failed to meet the burden of proving that the Respondent unlawfully discriminated against the employee, and the complaint alleging a violating of section 7116(a)(1) and (2) of the Statute shall be dismissed. /1/ ORDER IT IS ORDERED that the complaint in Case No. 1-CA-40151 by, and it hereby is, dismissed. Issued, Washington, D.C., March 13, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In reaching such conclusion, the Authority does not rely on the Judge's suggestion on page 5 of the decision that the subject employee's complaint about the work assignments of certain employees, in the circumstances of this case, was not protected activity or on his statements on pages 5 and 6 regarding a "mixed motive" analysis. -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE Respondent and DENNIS R. LACROIX, An Individual Charging Party Peter F. Dow, Esquire For the General Counsel Richard H. Greenberg, Esquire For the Respondent Before: ELI NASH, Jr. Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on May 29, 1984 by the Regional Director for the Federal Labor Relations Authority, Boston, Massachusetts Region, a hearing was held before the undersigned on July 24, 1984. This proceeding arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It resulted from charges originally filed on February 21, 1984 and amended on May 18, 1984 by Dennis R. Lacroix (herein called Mr. Lacroix) against the Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, (herein called Respondent). The Complaint alleges that the agency violated sections 7116(a)(1) and (2) of the Statute by considering the protected Union activity of Mr. Lacroix in preparing his annual performance appraisal for calendar year 1983 and by preparing and issuing a lowered performance appraisal for calendar year 1983 because of Mr. Lacroix's protected Union activity. Respondent's Answer denied the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact On Monday, April 4, 1983 Dennis R. Lacroix was involuntarily transferred to the crew of supervisor James Knowles. /1/ Mr. Knowles, credibly testified that he did not know the reason for Mr. Lacroix's transfer to his crew. In any event, the involuntarily transfer resulted from an unfair labor practice charge being filed alleging discrimination by Mr. Lacroix's previous supervisor. The transfer was subsequently found by the Authority in Department of the Navy, Portsmouth Naval Shipyard Portsmouth, New Hampshire, 17 FLRA No. 107 (1985), to be m violation of the Statute. Mr. Lacroix continued to work under Mr. Knowles' supervision until sometime in March 1984. During 1983, while he worked on the crew supervised by Knowles', Mr. Lacroix was told by both Knowles and General Foreman Joseph Freda that he was doing a good jobs there were no problems with the quantity or quality of his work, and they were both satisfied with his work. These same things were told Mr. Lacroix by his Foreman and General Foreman regarding his performance in 1982, when Ladroix received a "highly satisfactory" overall summary rating. Without question Mr. Lacroix was safety conscious and indeed he voiced a number of complaints and filed several grievances. the grievances concerned environmental differential or Code 27 pay for exposure to asbestos while working aboard ship and a counselling session on or around August 18, 1983. During his period as temporary foreman, Mr. Knowles supervised between ten and twelve individual employees in the time frame in which Lacroix worked under his supervision. Of the ten or twelve employees who Knowles supervised he had the opportunity to evaluate and prepare appraisals on only seven of those employees. The reason he was not allowed to evaluate four of the employees was because of shift transfers prior to evaluations in several instances and at least one employee was an apprentice, who was evaluated under a somewhat different system. Mr. Knowles testified that he would probably have rated three of the four "right in the satisfactory range." A breakdown of the seven he actually supervised shows one outstanding; four highly satisfactory and two satisfactory. The two satisfactory ratings vent to Mr. Lacroix and Mr. Wood. of considerable note is a chart prepared by the General Counsel which shows appraisals for the seven employees evaluated by Mr. Knowles in 1983 and a comparison with the 1982 ratings of each employee: Ratings of Each Employee (CHART OMITTED) This chart shows that Mr. Knowles did not rate most of those employees the same as their 1982 supervisor. In fact when the evaluations are compared there is a wide discrepancy between what previous supervisors and Mr. Knowles felt about many of these employees. One reason for such disparity is probably that new and different standards of evaluation were applied. During mid-August 1983, Mr. Lacroix and Mr. Wood were assigned a high pressure air line job on the 605 boat. According to Mr. Knowles, who at that time was acting as General Foreman, he sent Mr. Lacroix to Building 299 to obtain some fittings needed to connect certain hoses and he sent Mr. Wood to the shop to attempt to get some from the supervisor in the shop. Mr. Knowles testified that some 15-20 minutes went by and that he was called by Mr. Wood and told, "They wouldn't allow us to have any." Later, Mr. Knowles went to Building 299, and asked for the fittings. The tool room tenant gave him two fittings. Mr. Knowles, states that he asked the tool room tenant, "Has anybody been in since suppertime to see you?" And the tool room tenant responded a "Since supper?" And said, "Very seldom do we get asked for these anymore, because we never have them in, we're always out of stock, it seems like." Upon returning to the work area, Mr. Knowles testified that he found Lacroix, Wood and a welder standing around talking. two were counselled concerning this incident and a grievance concerning their counselling was filed by Steward Joseph R. Luvisi on October 7, 1983. The grievance was pursued vigorously by Luvisi through several steps, but its revocation was finally denied on January 20, 1984. The General Counsel points out that Mr. Wood's 1983 appraisal was also lowered. However, to my knowledge there is no allegation that Mr. Wood was discriminated against because of his participation in this incident or because he filed a grievance or participated in protected activity. Interestingly, Luvisi and another steward, Robert Liberty, had nothing but praise for Mr. Knowles' handling of labor relations matters. Luvisi who handled several of Mr. Lacroix's complaints stated, "I've never had any problem at all with Jimmy Knowles. Every time I've talked to him about any kind of concern, whether it be a safety problem or any kind of labor management relations, he's always been very receptive." Mr. Liberty, who was at one time a chief steward also testified that Mr. Knowles relationship with him as steward and chief steward was "very good." Mr. Liberty also testified that while he was phasing out his union activities during the time he worked for Mr. Knowles, he had filed one grievance on behalf of Mr. Lacroix. Voluntarily, Mr. Liberty added that Mr. Knowles was the type supervisor who believed in 8 hours work for 8 hours pay. Aside from the one counselling session mentioned above Mr. Knowles considered Mr. Lacroix's work satisfactory. Mr. Knowles testified in detail concerning his 1983 rating of employees, including Mr. Lacroix. The testimony reveals that Mr. Knowles never looked at any previous ratings; that his comparison with higher rated employees was just a matter of perception; that he took the attitude of attacking the job and doing it, not trying to skirt the issue of the employees into consideration. In sum, he felt that Mr. Lacroix, when working on more complex jobs had time delays and problems which were not outside the realm of satisfactory work, but was in substance clearly not highly satisfactory. On the other hand he felt more comfortable assigning more complex work to other employees. Mr. Knowles' assignments to employees like' Hallam and Hannigan was the subject of complaints. Mr. Knowles no doubt had a great deal of confidence in this duo. With regard to the grievances filed by Mr. Lacroix concerning Code 27 pay the record clearly demonstrates that contrary to the General C0unse1,s view, Mr. Knowles supported those grievances. He not only approved one, but three requests for environmental differential pay for Mr. Lacroix and, in fact the grievances were submitted with his signature. The record shows that grievances were filed on September 26, 1983 and February 1 and 14, 1984. It is noted that at least one and probably two of these grievances were filed after Mr. Lacroix filed after the 1983 appraisal was prepared and presented to Lacroix the latter two grievances. The position that Mr. Knowles took on these grievances was contrary to the ultimate management position that environmental differential pay was not warranted and there is no doubt that he told Luvisi that he had gotten his "ass chewed." Consequently, one of the grievances resulted in arbitration Unquestionably environmental differential pay for asbestos exposure was a controversial area, as the record shows, and it no doubt stimulated much concern as shown by the congressional and outside interests in the matter. Taken in proper context, Mr. Knowles' got his "ass chewed" because he took a position, which was not the management position and not because he had filed for Code 27 pay for Mr. Lacroix. I see no connection between these grievances and Mr. Lacroix's allegedly lowered rating. Finally, I find no correlation between Mr. Lacroix's complaining about Hallam and Hannigan working together and his rating. Notwithstanding the fact that Mr. Lacroix complained long and hard concerning this assignment, so did others. Others who were rated by Mr. Knowles in the highly satisfactory range. Moreover, assignment of employees, as employees, is not within the purview of another employee so Mr. Lacroix's complaints about those assignments are not, in my view, protected activity. Discussion and Conclusions The General Counsel asserts that it made a prima facie showing that Mr. Lacroix had engaged in protected activity and that the protected conduct was a motivating factor in reducing Lacroix's 1983 rating to "satisfactory." Notwithstanding its contention that a prima facie case was made, the General Counsel urges reconsideration of the Authority's application of its established standards in mixed-motive cases. /2/ On the other side of the coin, the Respondent maintains that the rating given Mr. Lacroix had no negative impact on his career opportunities; that notwithstanding a highly satisfactoy rating in the preceding year, Mr. Knowles' evaluation was higher than the evaluation Mr. Lacroix received two years before; /3/ there was no anti-union animus involved; and, finally Mr. Knowles' standards were higher than the supervisor who had rated Mr. Lacroix the previous year. Having established its prima facie case under IRS the burden shifted to the Respondent to establish by a preponderance of the evidence basically, that Mr. Lacroix's appraisal for 1983 would have been the same even in the absence of his protected activity. Respondent presented evidence which clearly met its burden of proof. While it is not clear what adverse impact would result from Mr. Lacroix's receiving only a satisfactory rating, such ratings could, but it is nor shown how in this record, impair Mr. Lacroix' s career. Furthermore, ratings are considered in seniority for reductions-in-force under present regulations and could indeed impact of Mr. Lacroix's federal job retention rights. The above is merely speculation, but show that there may indeed be some impact despite Respondent's position to the contrary. More importantly, however, Mr. Knowles was a new Temporary Foreman rating employees for the first time; Mr. Knowles was rating employees under different criteria than they had been previously rated; Mr. Knowles did not rate most of the employees he evaluated for 1983 the same as their supervisor had the previous rating year; Mr. Knowles gave sufficient legitimate business reasons which satisfy the undersigned that the appraisal, while it might have been based on interpersonal relations, was not motivated by Mr. Lacroix's participation in any protected Union activity. Even more important is the fact that there is no record evidence to establish that Mr. Lacroix was, during the period of time in question, more than a satisfactory employee. In fact, the 1983 appraisal is consistent with the evaluation Mr. Lacroix received two years earlier and runs counter to a finding that Mr. Lacroix was more than a satisfactory employee. Thus, he was rated satisfactory in two of the three rating periods shown on the record. Inasmuch as the record clearly supports a finding that the 1983 evaluation was based on Mr. Knowles' assessment of Mr. Lacroix as a satisfactory employee it is concluded that the appraisal should not be disturbed by finding a violation of section 7116(a)(2) of the Statute. The General Counsel also suggests that Respondent violated section 7116(a) (1) of the Statute by considering the protected activity of Mr. Lacroix in preparing his annual performance appraisal for 1983. Respondent counters that there is a complete lack of anti-union animus. In fact, it argues that there are no statements or conduct which would interfere with or coerce any employees under the Statute. I agree. A review of the record shows that Mr. Knowles, while a Temporary Foreman seemingly had excellent rapport with the Union. It reveals further that he supported Mr. Lacroix rather than opposed him in his quest for Code 27 pay; that he counselled Mr. Lacroix and Mr. Wood s for what appear to be legitimate concerns; and, that his conduct evidenced no animus whatsoever upon which to base a section 7116(a)(1) violation. Moreover, it was not established that Mr. Knowles considered Mr. Lacroixi's protected union activity in preparing the 1983 appraisal. ORDER IT IS HEREBY ORDERED, that the Complaint in Case No. 1-CA-40151 be a and it hereby is, dismissed. (s)--- ELI NASH, JR. Administrative Law Judge Dated: August 12, 1985 Washington, DC --------------- FOOTNOTES$ --------------- /1/ Although Knowles was acting as a Temporary Foreman, he was at the time of the hearing a WG-10 pipefitters having been returned to the bargaining unit after serving a two year period as Temporary Foreman. /2/ See, Internal Revenue Service, Washington, D.C., 6 FLRA No. 23 (1981); See also, Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 73 (1982), American Federation of Government Employees v. Federal Labor Relations Authority, 716 F.2d 47 (1983). The General Counsel does not thoughtlessly suggest such an approach. However, subsequent to the D.C. Circuit decision, the Authority has reiterated its application of the IRS standard to mixed motive cases. There is validity in the General Counsel's overall argument that the Authority in essence, may be unnecessarily denying itself the power to act in future cases where union activities are considered in the selection process but are not determinative and where no independent violations of the Statute are found. Notwithstanding such possible denial, the Authority has clearly adopted Mt. Healthy City School District Board of Education v. Doyle, 529 U.S. 274 (1977) as the test for establishing a section 7116(a)(2) violation under the Statute. Based on my overall findings in this matter it is not necessary, in my opinion, to recommend to the Authority based on the instant record any change in that approach. Accordingly, the General Counsel' s argument is rejected. /3/ Department of the Air Force, Scott Air Force Base, 14 FLRA No. 54 (1984).