[ v24 p773 ]
The decision of the Authority follows:
24 FLRA No. 76 U.S. CUSTOMS SERVICE WASHINGTON, D.C. Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 9-CA-50404 DECISION AND ORDER REMANDING CASE 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 be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the Charging Party filed a response to the Respondent's exceptions. /*/ We adopt the Judge's conclusion that the temporary details of employees Beebe and Thomas were based upon their participation in protected activities and that the reasons given by the Respondent for the details were pretextual. Therefore, we adopt his conclusion that the Respondent's conduct constituted a violation of section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), as alleged in the complaint. The Judge, in addition to a cease and desist order, recommended that the Respondent be ordered to make whole employees Beebe and Thomas for any loss of overtime pay they would have earned but for their temporary details. As the Authority has previously held, in order for backpay to be authorized under the Back Pay Act, 5 U.S.C. Section 5596, there must be a determination not only that an employee has been adversely affected by an unjustified or unwarranted personnel action, but also that but for the improper action the employee would not have suffered a loss or reduction in pay, allowances, or differentials. Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA 644 (1984). In this case, the Judge made his recommendation without applying the test. It is not clear from the record before us whether the Judge's recommendation meets the required standard. Accordingly, we remand this case to the Judge for the limited purpose of applying the standard to the facts of this case to determine, based on the existing record, whether backpay is warranted. ORDER The complaint in Case No. 9-CA-50404 is remanded for action consistent with the above. Issued, Washington, D.C., December 23, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 9-CA-50404 U.S. CUSTOMS SERVICE, WASHINGTON, D.C. Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party R. Timothy Shiels, Esquire For the General Counsel Patricia Olson, Esquire For the Respondent William Corman, Esquire For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et seq. and the Rules and Regulations issued thereunder. Pursuant to an amended charge first filed on August 22, 1985, by the National Treasury Employees Union (hereinafter called the NTEU or Union), a Complaint and Notice of Hearing was issued on October 18, 1985, by the Regional Director for Region IX, Federal Labor Relations Authority, San Francisco, California. The Complaint alleges that the U.S. Customs Service, Washington, D.C. (hereinafter called the Respondent or Customs), violated Sections 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute), by temporarily transferring unit employees Loran Beebe and Donald Thomas to different work locations because they had filed grievances against Respondent under the negotiated grievance procedure. A hearing was held in the captioned matter on November 18, 1985, in Seattle, Washington. All parties were afforded the opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post-hearing briefs on December 18, 1985, which have been duly considered. /1/ Upon the basis of 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 NTEU has been the exclusive representative in a nationwide consolidated unit of the Respondent's employees. The unit includes, among other employees, the custom inspectors working in the various ports within Respondent's Seattle, Washington District. At all times material herein the NTEU and the Respondent have been parties to a collective bargaining agreement which contains a negotiated grievance procedure applicable to unit employees. Mr. Loren Beebe, one of the alleged discriminatees, has worked in the Seattle District's Anacortes port as an inspector since 1971. He has served as president of the Seattle Chapter of NTEU. His most recent participation in protected activities was in connection with grievances challenging the Respondent's failure to award him overtime work during the fiscal year 1984. In February 1985, the NTEU elevated one of his grievances to arbitration. /2/ The grievance challenged Respondent's staffing practice at the Anacortes port which resulted in Mr. Beebe being deprived of overtime work opportunities. In addition to the grievance which was elevated to arbitration, Mr. Beebe filed 21 additional grievances between June 25 and July 31, 1985, contending that he has lost overtime work opportunities because of the use of intermittent inspectors. These latter grievances are currently at the second step of the grievance procedure, awaiting a decision by District Director Robert Hardy. Mr. Donald Thomas, the other alleged discriminiatee, has worked in the District's Seattle port for the past 12 years. He has formerly been the Chief Steward for the Seattle Chapter of the NTEU. Like Mr. Beebe, he felt that his overtime earning for the 1984 fiscal year had been improperly limited by Respondent and, like Mr. Beebe, he filed a grievance concerning such limitation. In April 1985 the NTEU invoked arbitration on Mr. Thomas' grievance. Subsequently, in October 1985, the parties entered into a settlement of the grievance, wherein the Respondent agreed to pay Mr. Thomas the sum of $820.96. Mr. Robert Hardy, the District Director, served as the hearing official at the second step of the grievance procedure on Mr. Thomas' grievance. In connection with the filing of grievances by other employees within the unit, the only evidence bearing thereon appears in the testimony of Mr. Robert Hardy and Senior Customs Inspector Gerald Bergquist. Thus, Mr. Hardy testified that "lots of other inspectors" have filed grievances, "fifty percent" of which "concerned the denial of overtime." Mr. Bergquist, who was currently at the Harbour Island Port testified that he filed a grievance in August of 1985 concerning the "denial of overtime assignment." The grievance at the time of the hearing herein was at the 3rd step of the grievance procedure. Other than the grievances of Mr. Beebe and Mr. Thomas, there is no record evidence indicating that any other grievances had been elevated to the final step of the grievance procedure, i.e. arbitration. The record further reveals that overtime earnings represent a considerable portion of a custom inspector's income. Each year an inspector is entitled to earn up to $25,000 in overtime, a figure that is calculated on the fiscal year ending on September 30. Both Mr. Beebe and Mr. Thomas are high overtime earners. Thus, as of early September, 1985, Mr. Beebe had earned approximately $19,000 to $20,000 in overtime while Mr. Thomas had earned approximately $23,500 in overtime wages. In order to insure that no inspector exceeds the $25,000 statutory overtime "cap" the Seattle District keeps daily records of each inspector's overtime earnings, using a daily "cap" of $68 to gauge the pace of each inspector's overtime earnings, since $68 x 365 equals $24,820, approximately the yearly salary overtime "cap." As a consequence, an inspector's opportunity to earn overtime increases as the year progresses. Thus, the first day of the fiscal year an inspector is not allowed to earn more than $68 in overtime. The second day, assuming that he has not worked overtime, his daily cap would have doubled to $136. The record further indicates that overtime opportunities in the Seattle District increase as the fiscal year progresses because the District's busiest season begins in June, with August and September the last two months of the fiscal year, being the busiest months. The Seattle District overtime assignments are made on a daily basis. Each day an inspector informs his supervisor as to whether he wants to work overtime that day, making himself either "available" or "not available." The assignments are then distributed inversely to the inspectors' cumulative overtime overtime earnings, that is, the top earner is at the bottom of the list. Every two weeks the Respondent issues a "1911 Overtime Report" for each inspector, showing the inspector's overtime assignments and his overtime earnings for that two week period. The report also shows the port where the inspector worked during that two weeks and the inspector's hourly overtime rate, a rate that remains the same regardless of the port where the inspector maybe working. During July and August, 1985, while NTEU was pushing Mr. Beebe and Mr. Thomas' arbitrations and while Mr. Beebe was filing his new overtime grievances, Mr. Robert Hardy instituted an "inter-port awareness program," which eventually sent Mr. Beebe and Mr. Thomas on temporary assignments. The program, announced in an August 2, 1985 memo, called for the detailing of inspectors to different ports to enhance their experience and to promote uniformity within Respondent's Seattle District. Mr. Beebe was temporarily traded for Charles Bowen of the Seattle port, while Mr. Thomas was traded for Bruce Hasselbrock of the Blaine port. The assignments began on September 3, 1985 and lasted three weeks. /3/ These four employees were selected from a pool of more than 80 inspectors working in the Seattle District. According to Mr. Hardy, when he was informed that there would be surplus funds available he decided to institute the transfer training program. The record reveals that this was first such program in to Seattle District. In the past, it appears that there had only been temporary transfers within the Seattle District to cover employee absentees. Neither Mr. Beebe nor Mr. Thomas had any desire to go on their respective assignments. Mr. Beebe's was an unhappy experience that forced him to spend two weeks 90 miles away from home, separated from his wife, and living in a Seattle motel. Mr. Thomas has an eight year old son who spends two or three nights each week with him. During the three weeks he spent in Blaine, 125 miles from his home in Seattle, he was separated from his son and his community. When Mr. Thomas found out he was being sent to Blaine, he even tried to get an alternative assignment in Los Angeles where, at least, he would be near relatives. Their assignments were given to them without any prior warning or discussion. On the other hand, even before Mr. Hardy issued his August 2, 1985 memo, management knew that both Mr. Bowen and Mr. Hassebrock would welcome the temporary transfer. Mr. Bowen had already attempted to fill a job vacancy in Anacortes and his supervisor, Mr. Tom Coleman, admitted that he wanted to go to Anacortes. While Bowen did not volunteer, in the strictest sense of the word, the record indicates that he would have if he had been given a chance. Mr. Hassebrock's supervisor also knew that he was interested in being sent to Seattle. In July, 1985, before he left on his three week vacation, Mr. Hassebrock told his supervisor, Mr. Eberhardt, that he was "definitely interested" in a temporary assignment to Seattle. This difference in treatment continued once these employees arrived at their temporary assignments. In Seattle, Mr. Beebe found himself restricted by supervisors Mr. Jack Lopez and Mr. Terry Millhouse as to the amount of "cargo discharge" work and "entering or clearing of vessels" work he was allowed to do on overtime, even though he had fourteen years of experience in that type of work and had been allowed by Mr. Lopez and Mr. Millhouse to do that work during regular hours. Mr. Hassebrock did not face similar limits on the type of overtime work he was allowed to do, testifying that "I could work any overtime that was available that I could do." Although Mr. Hassebrock testified that he, too, did not do any "vessel and cargo discharges" it was only because he did not have sufficient expertise for such assignments. Moreover, even though both Mr. Beebe and Mr. Thomas were available to work overtime every night, while Mr. Hassebrock was not available the entire first week, both earned less overtime during their details than either Mr. Bowen or Mr. Hassebrock. NTEU challenged Respondent's discriminatory assignments of Mr. Beebe and Mr. Thomas, filing the present unfair labor practice on August 23, 1985. On behalf of Respondent, Mr. Hardy replied to the charges in an October 2, 1985 letter to Region 9 of the Authority, in which he offered the "specific reasons for the temporary reassignment of each employee." Mr. Hardy asserted that Beebe had been selected for the assignment so that he could train Seattle employees on aspects of the "oil program," while Mr. Thomas, as the inspector commanding the "greatest knowledge" of the Automated Commercial System (ACS), /4/ had been selected to shar this expertise with employees in Blaine, Washington. That same month Mr. Hardy also met with NTEU Chapter 164 President, Mr. William Keown, and again asserted the some reasons for the assignments. Mr. Beebe was never informed of any alleged training duties and his assignment to Seattle port involved absolutely no training of other employees on the oil program. In fact, during Beebe's two-week assignment his only involvement with the Oil Program was a one and one half hour meeting with Customs Import Specialist Mr. Yamata wherein the oil program was discussed. Mr. Beebe himself had requested the meeting after he had learned of the temporary reassignment. Mr. Thomas, like Mr. Beebe, did no training in his alleged area of expertise, the ACS, while on assignment to Blaine. During his three weeks in Blaine, Mr. Thomas spent only 30 minutes even discussing ACS with Blaine employees. Moreover, the evidence further establishes that Mr. Thomas was not an expert on ACS and that, in fact, if such expertise were required, there were more qualified inspectors available, including Inspectors Mr. Barry, Mr. Bjork, and Mr. Bergquist. Mr. Thomas' first experience with ACS (or its predecessor "ACCEPT") came in April, 1985 and he had a total of only 15 minutes of on-the-job experience by September 3, 1985, when he went to Blaine. During that time Mr. Thomas was the "outside man" at Respondent's "transiplex" facility at the SEA-TAC airport. As both Mr. Thomas and, later Inspector Mr. Jack Bjork testified, the "outside man" 's ACS responsibilities are limited to one day every other week, when he relieves the "inside man," who is the one primarily responsible for ACS. Mr. thomas had never been to any ACS training classes. /5/ Inspectors Mr. Robert Barry, Mr. Gerald Bergquist, and Inspector Mr. Bjork, on the other hand, had a great deal of experience and training in ACS and ACCEPT. /6/ Three years ago Respondent sent Mr. Barry to San Diego for ACS training. He then returned to Seattle where he set up the ACS program and trained the first journeymen inspectors. Mr. Barry had also been the Seattle District's "training officer" from June 1983 to January, 1985, coordinating the District's training programs and often running specific training sessions. Because of his vast experience and training in ACS, Mr. Barry needed only minutes to reacquaint himself with ACS after being away from the system for two years. Inspector Bjork has attended an ACS training session in May, 1985 along with 15 other inspectors and had been working since that time as the "inside man" with Mr. Thomas at Transiplex. As noted earlier, it is the inside man who has primary responsibility for, and handles, the bulk of ACS work. Inspector Bergquist has worked at Respondent's Harbour Island facility as the Senior Inspector of the Harbour Island ACS unit from June, 1985 to the present. Prior to becoming Senior Inspector, Mr. Bergquist spent three weeks as acting supervisor of the ACS unit. At Harbour Island, the ACS unit places between 6000-7000 monthly entries into ACS. /7/ As Senior Inspector of the ACCEPT unit Mr. Bergquist's responsibility included reviewing all ACS entries, and supervising the inspectors and the sides who work on the ACS computer. Following the testimony of Mr. Barry, Mr. Bjork and Mr. Bergquist in the above respect, Mr. Hardy was recalled to the stand and offered new explanations for selecting Mr. Beebe and Mr. Thomas for the temporary details. With respect to Mr. Thomas, Mr. Hardy claimed that he had important supervisory skills. Mr. Hardy also referred to Thomas' "airport operation" experience, pointing out that it would be useful at a border port. However, Mr. Thomas was instructed to work simply "as a Senior Inspector in the Cargo Area." Moreover, with respect to knowledge of airport operations, both Mr. Bjork and Mr. Barry, who appear to have better ACS qualifications, also had working experience at the Sea-Tac Airport. With respect to Mr. Beebe, at the hearing, Mr. Hardy no longer contended that Mr. Beebe was an oil expert, and instead claimed that Beebe had been sent to Seattle to improve his allegedly poor performance in a number of areas. However, Mr. Beebe received no training at all while in Seattle. Mr. Hardy also claimed that Beebe's high overtime earnings were causing a problem in staffing at Anacortes, suggesting that Mr. Beebe might reach the $25,000 cap in September, making it difficult to spread the overtime assignments. However, the evidence establishes that Mr. Beebe had only $19,000-$20,000 in overtime when he arrived in Seattle in September. Moreover, Mr. Hardy admitted that he had begun a program in 1985 at Anacortes using intermittent inspectors to handle overtime assignments in lieu of regular inspectors. There is no evidence that the intermittent inspectors were unavailable in September, 1985. However, Mr. Hardy further testified that the intermittents were not qualified for all jobs. Mr. Hardy's only explanation for failure to include these new reasons in his October letter to the Region was that he had dictated the letter rather hurriedly. Discussion and Conclusions The General Counsel, citing, among other things, the protected activity of Mr. Beebe and Mr. Thomas, the timing of their details, the fact that Mr. Hardy's reasons for their selection do not withstand scrutiny, and the availability of more qualified teachers than Mr. Thomas, takes the position that the details of Mr. Beebe and Mr. Thomas were based solely on union animus and were therefore in violation of Section 7116(a)(1) and (2) of the Statute. The Respondent on the other hand takes the position that the General Counsel has not established a prima facie case and therefore the complaint should be dismissed in its entirety. Additionally, the Respondent claims that the General Counsel has not established that the reasons proffered for the selection of Mr. Beebe and Mr. Thomas were "pretextual." Finally, the Respondent takes the position that even if it is established that Mr. Beebe and Mr. Thomas' grievances and that Mr. Hardy, the Distrtct Director, the person responsible for selecting Mr. Beebe and Mr. Thomas for the temporary inter-port awareness program, was well aware of their respective protected activities. The record further establishes that Mr. Hardy made the decision to select Mr. Beebe and Mr. Thomas for the temporary details without any consultation with Mr. Beebe and Mr. Thomas concerning such details. In contrast to the treatment accorded Mr. Thomas and Mr. Beebe, Mr. Hardy sought input from the supervisors in the Seattle and Blaine Ports relative to which employees should be detailed to the permanent locations of Mr. Beebe and Mr. Thomas. /8/ Thus, while the swap was voluntary as to Mr. Beebe and Mr. Thomas' temporary replacements, it was mandatory as to Mr. Beebe and Mr. Thomas and resulted in undue hardships upon them. The record further reveals, that, according to Mr. Hardy, he selected Mr. Beebe and Mr. Thomas for the inter-port transfers in order to utilize their expertise in the ports of Blaine and Seattle. Thus, Mr. Beebe was to train employees in Seattle on the "oil program" while Mr. Thomas was to train the Blaine Port employees on the ACS system. However, in practice, neither Mr. Beebe nor Mr. Thomas was programmed to impart their alleged respective knowledge of the oil program and ACS system to the employees working in the Seattle and Blaine Ports. In fact the record further establishes that Mr. Beebe only contact with the oil program while in Seattle was a one and one half hour discussion with an import oil specialist which he requested after he had been informed of his temporary assignment. With respect to Mr. Thomas, who was allegedly selected for a temporary detail to Blaine because of his ACS expertise, the record reveals that he was far from an ACS expert, having had only fifteen minutes on-the-job training on ACS. The record further reveals that other employees were much more versed in the ACS system and that such employees has actually undergone formal training on the ACS system. Finally, with regard to Mr. Hardy's testimony that one of the reasons for the temporary transfers of Mr. Beebe and Mr. Thomas was their proximity to the $25,000 overtime cap, the record reveals that Mr. Beebe as of September 3, had only earned nineteen or twenty thousand dollars in overtime. Accordingly, multiplying $68 by 27, the remaining days of the fiscal year, would therefore only give him less than $22,000 in overtime earning for the entire fiscal year, several thousand dollars less than $25,000 the overtime cap. Based upon the record as a whole and particularly the foregoing considerations, I find, contrary to the contention of the Respondent, that the preponderance of the evidence supports the conclusion that the temporary details of Mr. Beebe and Mr. Thomas were based upon their participation in activities protected by the Statute, namely the filing of grievances. I further find that the reasons assigned by Respondent for their respective details were a pretext and that but for Mr. Beebe and Mr. Thomas' participation in protected activities they would not have been involuntarily detailed to the Blaine and Seattle Ports. In such circumstances, I further find that the Respondents selection of Mr. Beebe and Mr. Thomas for their respective details was based upon union animus and hence violative of Section 7116(a)(1) and (2) of the Statute. Accordingly, it is hereby recommended that the Federal Labor Relations Authority issue the following Order designed to effectuate the purposes and policies of the Statute. ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, the Authority hereby orders that the U.S. Customs Service, Washington, D.C. shall: 1. Cease and desist from: (a) Discriminating against Donald Thomas, Loren Beebe, or any other unit employees with regard to temporary assignments, details, or other conditions of employment because of their action in filing grievances or participating in other activities protected by the Statute. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the pruposes and policies of the Statute. (a) Make whole Donald Thomas and Loren Beebe for any loss of overtime pay they would have earned but for their temporary details during the period September 3, 1985 to September 21, 1985. (b) Post at all its locations within the Seattle, Washington District 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 District Director, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places were notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director for Region IX, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ Burton S. Sternburg Administrative Law Judge Dated: January 31, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (*) The General Counsel's motion to disregard the Respondent's exceptions and attached opposition to the Respondent's exceptions have not been considered because they were filed untimely. Therefore, it is unnecessary to consider the Respondent's response to the General Counsel's motion. (1) In the absence of any objection, General Counsel's Motion to Correct Hearing Transcript, should be, and hereby is, granted. (2) This arbitration is still pending. (3) Mr. Beebe's assignment lasted only two weeks because of an earlier scheduled vacation. (4) ACS and its predecessor, ACCEPT, are computer systems which Respondent uses to determine the extent to which an importer's shipment will be inspected. (5) Concerning Mr. Thomas' alleged ACS qualifications, Mr. Hardy mistakenly recalled an ACS computer "demonstration" that Mr. Thomas had given to him. However, Mr. Thomas testified that he never even discussed ACS with Mr. Hardy and that the computer he had acquainted Mr. Hardy with was the Sealand System, which is totally unrelated to ACS. Mr. Thomas denied receiving any such ACS training and his denial stands uncontradicted on the record. (6) Unless otherwise noted, "ACS" will be used for all future references of both ACS and ACCEPT. (7) At the Transiplex, where Thomas gained his limited ACS experience, there are only 2,000 entries each month. (8) The supervisors indicated that they had employees under their supervision who had indicated a desire for such training details. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discriminate against Donald Thomas, Loren Beebe, or any other unit employees with regard to temporary assignments, details, or other conditions of employment because of their action in filing grievances or participating in other activities protected by the Statute. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL make whole Donald Thomas and Loren Beebe for any loss of overtime pay they would have earned but for their temporary details during the period September 3, 1985 to September 21, 1985. . . . . . (Agency or Activity) Dated: . . . . . . . . . (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 IX, whose address is: 530 Bush Street, Room 542, San Francisco, CA 94108 and whose telephone number is: (415) 556-8106.