WASHINGTON, D.C. 20424-0001
AIR FORCE MATERIEL COMMAND
WARNER ROBINS AIR LOGISTICS CENTER
WARNER ROBINS AIR FORCE BASE, GEORGIA
andAMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 987
Case No. AT-CA-60791
C.R. Swint, Jr., Esquire For the Respondent
Before: JESSE ETELSON Administrative Law Judge
An unfair labor practice complaint issued by the Regional
Director for the Atlanta Region of the Federal Labor Relations
Authority (the Authority) alleges that Respondent "loaned out"
certain employees described as WG-5 cleaners and required other
employees described as WG-9 painters to work overtime because the
painters engaged in certain activities that fall within section
7116(a)(4) of the Federal Service Labor-Management Relations
Statute (the Statute). The complaint's concluding allegation is
that Respondent's conduct violated sections 7116(a)(1) and (4) of
the Statute. The answer denies these allegations. In an amended
answer, Respondent asserts that the mandatory overtime preceded the
loaning out and was not caused by it.
A hearing was held in Macon, Georgia, on July 16, 1997.
Counsel for the General Counsel and for Respondent filed
post-hearing briefs. Counsel for Respondent also filed a motion to
correct minor errors in the transcript of the hearing. The motion
was unopposed. It is granted and the transcript is corrected
Findings of Fact
The following findings are based on the record as a whole,
the briefs, my observation of the witnesses, and my evaluation of
the evidence. I have also taken official notice of the decision of
Judge William B. Devaney, dated May 30, 1996, in Case No.
AT-CA-50193 (exceptions pending), which has the same party caption
as the instant case.
I. Institutional and Operational Background
A component of Respondent identified as "LJ" and described
as the C-141 system program directorate is responsible for the
worldwide management of the Air Force's C-141 cargo aircraft
program. Among LJ's management functions is the "Program Depot
Maintenance" (PDM) of each airplane in the C-141 fleet. A PDM is a
"full-blown overhaul," performed on each C-141 once every five
years. A C-141 is normally scheduled into a time slot of 150 to 180
days for a complete PDM. As the C-141 is an "aging aircraft,"
however, extensive repairs are usually found necessary, typically
requiring nine or ten months rather than the slotted 150 to 180
days. Historically, each C-141 was repainted every ten years, or
once every other PDM cycle.
In late 1991 or early 1992 a decision was reached to change
the color scheme of the entire cargo fleet. In order to minimize
the time lag, the expense, and the disruption of cargo operations,
the plan called for repainting each C-141 in conjunction with its
next 5-year PDM, whether it had been painted at its last cycle or
not. Since the plan envisioned doubling the number of C-141's
requiring repainting during the next five years, Respondent hired
some temporary employees to perform part of the repainting process.
As the project progressed, as many as 50 to 52 C-141's were
repainted in a year (Tr. 76-77).
The repainting process, described more thoroughly in the
record in Case No. AT-CA-50193, and Judge Devaney's decision in
that case, is performed in three stages.(2) The first stage, "depainting," is performed
early in the PDM overhaul process, following "disassembly" (the
removal of certain parts of the airplane). Depainting is the
removal, or "stripping," of the old paint. Next, in the PDM
process, each airplane is taken apart and inspected for necessary
repairs and modifications. After the airplane is reassembled and
flight-tested, it is ready for the second step of the repainting
process, which is a paint preparatory operation called "wash, etch,
and aladyne," or "WEA."(3) Within 72
hours of the completion of the WEA process, the third and final
stage, painting, is begun. There were, however, at least
historically, other substeps required, after the WEA process, to
prepare the airplanes for the actual repainting, which is the final
step before the airplane is released (Tr. 23, 51, 68).(4) Depainting required approximately twice as
many work hours as all the subsequent steps in the repainting
process for each airplane. (Tr. 69-76, R Exh. 7).
II. Previous Litigation and Contemporaneous Events
Case No. AT-CA-50193 involved the allegation that Respondent reassigned WEA work to its employees who were classified as WG-09 painters without fulfilling its obligation to bargain with the Charging Party (the Union). Respondent admitted its reassignment of such work but defended its action by asserting on several grounds that it had no obligation to bargain. Judge Devaney rejected these defenses and concluded that Respondent violated sections 7116(a)(1) and (5) of the Statute by failing to provide the Union with notice and an opportunity to bargain over the impact and implementation of the work reassignment. He recommended an order including the usual cease and desist and "bargaining order" provisions, a make-whole remedy to WG-5 and WG-7 employees who were adversely affected by the reassignment of WEA duties, and a requirement that, on the Union's request, Respondent take certain steps to protect and make whole WG-9 painters who had been or would be assigned to WEA work. Judge Devaney did not recommend a general status quo ante remedy, that is, a rescission of the reassignment of WEA duties.
The WG-5 employees who Judge Devaney found to have been
adversely affected by the reassignment of WEA duties were among the
temporary employees hired, beginning in 1991 or 1992, as "equipment
cleaners," to assist in the 5-year repainting plan. Apparently they
were assigned to perform either depainting, WEA, or both. Their
original terms of one year were extended for several years.
However, in 1994 and 1995 it was discovered that many of the
C-141's were aging more rapidly than anticipated. The Air Force
decided to "retire" some of these airplanes. This resulted in fewer
airplanes being scheduled for painting. (Tr. 65-66).
The reassignment of WEA duties to the painters occurred in
December 1994. In March 1995, the Union filed a grievance over the
alleged "draft[ing]" of painters to work overtime on several
weekends in February and March 1995. The grievance proceeded to
arbitration. In November 1995, the arbitrator determined that
Respondent had not violated the Local Supplement to the Master
Agreement and denied the grievance.
The total number of work hours for depainting and painting
C-141's increased slightly from fiscal year 1994 to fiscal year
1995. However, for fiscal year 1996, which began on October 1,
1995, the total number of work hours dropped by approximately 35-40
percent. (Tr. 69-75, R Exh. 7.)
In January 1996, after the hearing in Case No. AT-CA-50193 but before Judge Devaney's decision, LJ declared a number of the temporary equipment cleaners to be "excess." The personnel department was notified and requested to place them elsewhere if possible. (Tr. 134-36.) Only six C-141's that arrived from January through April 1996, and one in May, were scheduled for a "full paint job" (Tr. 76-77, 83-85, R Exh. 9).
On May 2, 1996, the Union filed an unfair labor practice
charge alleging that, on or about April 8, management implemented
two changes in working conditions, one of which was "changing the
duties of painters in C141." The designated contact person for the
Union was Joe Blackman, a painter who was the General Counsel's
main witness at the hearing in this case. The record contains
nothing further about that unfair labor practice charge or its
For some time before May 1996, the depainting and repainting
operations had been housed in separate buildings (Buildings 89 and
54, respectively).(5) On May 20, the
depainting operation was moved into Building 54, which it then had
to share with the repainting (including, presumably, the WEA)
process. These operations continued to be housed together in
Building 54 until October 1996, while Building 89 was under repair.
By May 30, the date of Judge Devaney's decision, some WG-5
equipment cleaners had been loaned out to perform other work (Tr.
43, 103, 133-34).
III. Events Following Judge Devaney's Decision
Having loaned out some temporary WG-5 equipment cleaners in
May 1996, LJ loaned out another 12 on July 21. The unfair labor
practice charge in this case was signed on July 30 and filed on
August 2. Ten more of these temporary employees were loaned out on
August 5 (Tr. 132-33, R Exh 16). The supervisors for the depainting
process were retained, while the painting supervisors were moved
out (Tr. 32). Sometime during the period around August, WG-9
painters were being assigned depainting work and were required to
work overtime on both painting and depainting. Twelve WG-5's having
been loaned out on July 21, the unfair labor practice charge having
alleged on July 30 that overtime had been imposed on the painters,
and it being undisputed that painters were assigned mandatory
overtime, I infer that the imposition of mandatory overtime began
in July if not earlier.
The record does not indicate when depainting work was first
assigned to painters, but the records for overtime work assignments
in the summer of 1996 show a pattern of weekends of overtime for
depainting and painting, alternatively, from July 20 to the end of
August, with one weekend off in August. Overtime was assigned on
three weekends in September, for both depainting and painting. I
find that at least some of the mandatory overtime assigned to the
painters, including at least some of the mandatory overtime for
depainting, was the result of loaning out the WG-5 equipment
cleaners.(6) In August 1996, WG-5
employees were paid between $11.28 and $13.15 an hour. WG-9
employees were paid between $13.03 and $15.69 an hour for regular
time duty. (GC Exh. 3.)(7)
In October, Respondent issued an amended "Core Personnel
Document" describing the position of its WG-9 painters. An
introductory sentence setting forth the purpose of the position had
previously specified: "perform painting and finishing duties of
aircraft and aerospace vehicles" (GC Exh. 4). The amended purpose
was: "to paint, clean, and or depaint a variety of parts installed
or removed from aircraft; as well as the interior or entire
exterior of the aircraft." Also added was a new "critical" duty:
"May be required to perform paint removal task in the event there
is no Aircraft available for painting." (GC Exh. 5.)
Painters Joseph Blackman and Louis Williams were presented
with the new job description. They sought an explanation from Ms.
Hollingsworth (whose name appears on the document as having
"classified" the position) as to how these changes had been made
without first talking to the painters about it. Hollingsworth told
them that Roger Hobbs, the painters' branch chief, had authorized
it. The painters referred Hollingsworth to the previous unfair
labor practice case. Hollingsworth then said that she could not
discuss the matter any further. She phoned Labor Relations Officer
Dale Foster and the painters continued their protest with him.
Foster responded to the effect that the painters just had to do
what they were assigned to do if they wanted their jobs.
Building 89 (and perhaps Building 110) again became
available in October. However, the projected schedule for fiscal
year 1997 then showed a further winding down of the C-141 painting
program to the extent that only six airplanes would arrive for full
paint jobs during the whole year. (Tr. 86-90, 93, 114-15, R Exh.
Branch Chief Hobbs was replaced around the beginning of
November by Jackie Howell. Shortly after Howell took over, a Union
steward informed him that some painters were complaining about
being drafted to work overtime on depainting. Howell decided that
all of the overtime depainting could be handled by volunteers. From
that time to the date of the hearing, no painters were assigned to
mandatory overtime for depainting.
IV. Respondent's Explanation for its Course of Action
Roger Hobbs, who was responsible for the decisions that
effected the reassignments and the mandatory overtime, testified at
length, and cogently, about the operational considerations that
dictated these actions. He explained his loaning out the WG-5
employees at the times that he did on the basis of a lack of work
and the availability of only one building for both depainting and
painting (Tr. 78, 96).
Building 54, to which the depaint/paint operations were
confined from May to October, could accommodate only one C-141 at a
time. Thus, after an airplane was depainted, it was moved to
another shop for its overhaul, and another airplane, ready for
repainting, was moved in. Depainting of one airplane and repainting
of another could not be performed simultaneously (Tr. 41, 79).
Hobbs might, then, either have assigned one group of employees to a
continuous operation, working on each airplane as it became ready
for either depainting or repainting, or have divided the work
between two crews and found something to occupy the repainting crew
while the depainters were at work and vice versa. Hobbs
chose the first option. Since the painters, but not the equipment
cleaners, were "PAC certified" to paint, and were thus deemed
capable of performing both operations, he assigned the work to the
painters. Moreover, according to Hobbs, none of the other LJ
components needed painters, but some had asked him for depainters.
With respect to the apparent paradox of loaning out
employees for lack of work while assigning overtime to higher-paid
employees, Hobbs testified that it was not the overall workload
level that dictated overtime, but the nature of the process and the
priority of returning each airplane to its mission in the shortest
possible time. Thus, once certain chemicals or coatings are applied
to an airplane's exterior, the next step in the process must follow
within a certain time frame. It cannot wait until the next
available slot of regular duty time. Further, once an airplane was
ready for any stage in the overhaul process, including depainting
or repainting, its return to its previously scheduled missions
depended on expeditious completion of each stage in the process,
minimizing periods in which the airplane awaited its turn. Finally,
the airplane had to be moved promptly through the depainting stage
in order to ensure the timely ordering of any replacement parts
found to be required during its post- depainting inspection, and to
enable the completion of depainting in time to pass the airplane
along to other crews of employees who would otherwise be waiting to
perform their parts of the overhaul. (Tr. 67, 81-83.)
The amendment of the painters' job description, according to
Hobbs, was part of a project that he assigned to Jackie Howell (who
was about to become Hobbs' successor) when Howell was assigned to
him during a 2-week tour as an Air Force reservist. Hobbs directed
Howell to update a number of job descriptions, including that of
the painters. (Tr. 96-97, 111-12.) Howell conformed the painters'
job descriptions to those used in other components of LJ, where the
painters' job descriptions included depainting (Tr. 97, 112,
Discussion and Conclusion
The General Counsel's interpretation of Respondent's actions
is that, in response to Judge Devaney's decision, Hobbs transferred
the WG-5 equipment cleaners out and thereby required the WG-9
painters (those presumed to be responsible for the unfair labor
practice charge that resulted in the Devaney decision) to assume
the duties of the equipment cleaners while denying the equipment
cleaners the opportunity to earn overtime. I find insufficient
support for this theory, or any other theory that would warrant the
inference of an unlawful motivation. I find no connection between
Judge Devaney's decision and the reassignments that underline the
instant case. However, even apart from the issue of motivation, the
General Counsel faces a serious obstacle to the finding of a
I. The Statutory and Precedential Landscape
Section 7116(a)(4) of the Statute, the provision on which
the substantive allegations of the complaint are based, prohibits
discrimination against an employee "because the employee has filed
a complaint, affidavit, or petition, or has given any information
or testimony under this chapter." The Authority uses the same
analytical framework for resolving complaints alleging
discrimination in violation of section 7116(a)(4) of the Statute as
it does for resolving complaints alleging discrimination in
violation of section 7116(a)(2), namely, the framework set forth in
Letterkenny Army Depot, 35 FLRA 113
(1990)(Letterkenny). Department of Veterans Affairs
Medical Center, Brockton and West Roxbury, Massachusetts, 43
FLRA 780 (1991)(Brockton).
Although the Authority uses the same "analytical framework"
in section 7116(a)(4) cases, certain textual differences between
sections 7116(a)(2) and (a)(4) suggest that the materials needed to
complete the structure that is to be built on that framework are
not necessarily the same. Among those textual differences are two
that are potentially significant for purposes of the instant
The first of these differences is that section 7116(a)(2)
prohibits discrimination "to encourage or discourage membership in
any labor organization," while section 7116(a)(4) prohibits only
discrimination against an employee "because the employee" has done
certain things. The Authority, however, has incorporated a similar
limitation on the scope of section 7116(a)(2). Thus, in
Letterkenny, the Authority outlined the necessary elements
in the "prima facie showing" that the General Counsel is
required to establish in order to withstand a motion to dismiss.
Id. at 119. These elements are:
(1) [T]he employee against whom the alleged discriminatory
action was taken was engaged in protected activity[.]
(2) [S]uch activity was a motivating factor in theagency's
treatment of the employee . . . .
Id. at 118. Taken at face value, the first element
excludes from the scope of section 7116(a)(2) any discrimination
that occurs because of protected activity by persons other than the
discriminatee or because of any suspected or
anticipated protected activity. But see
Electro-Voice, Inc., 320 NLRB 1094, 1095 n.4 (1996);
F&EErection Co., 292 NLRB 587 (1989).(9)
The second potentially relevant textual difference between
these two subsections is that section 7116(a)(4) prohibits only
discrimination that responds to certain specified
activities--filing a complaint, affidavit, or petition, or giving
information or testimony under "this chapter" (the Statute). This
textual limitation has not received a rigid construction, however.
The filing of an unfair labor practice charge under the Statute,
while not specifically mentioned in section 7116(a)(4), has been
held to be covered by that provision. See Brockton, 43 FLRA
at 780-81. However, the complaint in the instant case alleges
Respondent took the alleged discriminatory actions because
the painters engaged in the activity described in paragraph 10 of
the complaint. Paragraph 10 states that:
A complaint issued on July 31, 1995, involving the
WG-4102-9 Painters. On May 30, 1996, Judge William
Devaney issued a decision finding that the Respondent
had violated the Statute. Also, the Painters have
filed numerous group grievances during this same
I pass quickly over the sentence concerning the painters' filing of grievances, which does not fall within section 7116(a)(4) and which the evidence did not connect with Respondent's actions. Counsel for the General Counsel, in his brief, seeks to connect Respondent's actions with "the employees' involvement in the prior unfair labor practice charge, which resulted in the decision adverse to Respondent
. . . ." Br. at 11.
The record in this case gives no indication of the
employees' "involvement" in the prior charge except that at least
two painters who testified in this case had testified in the prior
case. Their prior testimony does not appear to have been seriously
contested and, on the record as a whole, does not appear to be the
"involvement" that the instant case was about. The focus of the
instant case was, rather, the fact that the charge filed in the
earlier case (see Brockton) resulted in a complaint and a
decision adverse to Respondent. That charge, however, was not filed
by any employee who is an alleged discriminatee but by the
Given the textual limitation in section 7116(a)(4) to
discrimination "because the employee" did certain things, and the
Authority's similar limitation even of discrimination under section
7116(a)(2), it is difficult to find a rationale under which the
alleged discrimination in the instant case can be placed within
section 7116(a)(4). One possible approach, in which the Authority
acquiesced prior to Letterkenny but which may no longer be
viable, is to consider any covered activity that is initiated for
the benefit of an employee as the equivalent of activity by that
employee. See Department of the Navy, Navy Resale System, Field
Support Office, Commissary Store Group, Norfolk, Virginia, 16
FLRA 257, 265-66 (1984) (Navy Resale System). The Authority
failed to disavow a judge's reliance on Navy Resale System
in one post-Letterkenny case, U.S. Department of the
Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda,
California, 38 FLRA 567, 581 (1990). However, in that case, the
filing of anunfair labor practice charge by the union was only one
of several actions found to have motivated the discrimination. The
discriminatee was found to have been retaliated against for that
and for his seeking the union's assistance and giving a statement
to the Authority. Id. at 567, 569, 581.
Even assuming that the Navy Resale System analysis is still viable, its applicability to this case is, in light of Letterkenny, questionable. The charge that was found to have motivated the discrimination in Navy Resale System was over a matter that affected the discriminatee, and no other employee, directly. There was no question but that the charge had been filed on that employee's behalf. Here, however, the matter alleged to have caused the discrimination involved no rights personal to the painters (or to any other employees). The right sought to be vindicated was that of the Union, as exclusive bargaining representative, to be given the opportunity to negotiate over the impact and implementation of certain changes. While those changes had affected the painters, among others, and while the Union's right to negotiate was ultimately for the purpose, as stated in section 7114(a)(1) of the Statute, of "representing the interests of all employees in the unit it represents," the Union's action in filing the charge here cannot be attributed to the alleged discriminatees in the same way as the filing in Naval Research System could.
As a matter of policy, the Authority might wish to reaffirm
Naval Resale System and to apply it generously so as to
protect employees who, as here, can be linked to the filed charge
as potential beneficiaries. However, such an approach appears to be
inconsistent with the existing Letterkenny formulation. For
if discrimination is considered to fall within section 7116(a)(2)
only when committed against an employee who actually engaged in
protected activity, and not when committed against an employee whom
the agency somehow associates with protected activity, it would be
difficult to justify construing the textually more restrictive
section 7116(a)(4) more expansively. But cf. NLRB v.
Scrivener, 405 U.S. 117 (1972). I feel constrained, therefore,
to recommend dismissing this complaint for failure to establish any
basis, consistent with the pleadings and the evidence presented,
for finding discrimination against a protected employee. However,
recognizing and even hoping that the Authority will not adopt this
recommendation, I shall state my conclusions as to whether the
General Counsel has otherwise established a prima facie case
II. A Prima Facie Case Has Not Been
Conceding the absence of any direct evidence of antiunion
animus, Counsel for the General Counsel relies largely on the
timing of Respondent's actions in relation to Judge Devaney's
decision, as if to suggest that it was not so much the filing of
the charge as the (still not final) fruits of that filing, some 18
months later, that spurred Hobbs to invidious action. There are
several problems with this reliance.
The loaning out of the WG-5 equipment cleaners began before
Judge Devaney's decision, although well after the charge was filed,
the complaint was issued, and the hearing was held. These loans
began after, although not immediately after, the WG-5 employees
were declared "excess." While the General Counsel contends that the
delay between this declaration and the actual loaning out (which,
as the General Counsel fails to acknowledge, occurred in stages)
should raise doubts about the timing, there is nothing inherently
suspect in such a delay.(11)
Moreover, the loaning out corresponded to an actual decrease in the
number of arriving airplanes that required depainting, even while
airplanes that had already been depainted remained at the facility.
These airplanes, after several months of mechanical overhaul, would
require repainting work that only the painters were qualified to
Respondent's amendment of the painters' job descriptions in
October 1996, which the General Counsel finds suspicious as an
attempt by Hobbs to portray the change as one that is "covered by
the contract," was satisfactorily explained as a routine exercise
in updating the job descriptions to conform to those of the
painters' counterparts in other LJ components. Moreover, these
amendments, adding "depainting" to the painters' official duties,
were made after the events covered by the complaint. The General
Counsel's theory presumes Hobbs' expectation that he could mislead
the Authority into finding that, somehow, the new job descriptions
retroactively legitimized the assignment of depainting duties to
the painters. I find it highly improbable that Hobbs acted in
accordance with such an impression of naivete on the Authority's
Finally, the General Counsel attributes to Hobbs the
motivation of avoiding future awards of backpay to the WG-5
employees. This Hobbs supposedly sought to accomplish by
"banish[ing]" these employees from the area in which the C-141's
were depainted. It is debatable whether such a motivation is
proscribed by section 7116(a)(4) or is pertinent under
Letterkenny. In any event, while Hobbs understandably would
have found avoidance of future backpay awards desirable, the entire
history of Respondent's treatment of the WG-5 equipment cleaners
tends to negate any inference that such a motivation contributed to
its decision to loan them out.
In this connection, as with all the issues raised by the
General Counsel with respect to timing, it must be remembered that
the equipment cleaners were hired on a temporary basis, for the
purpose of a project designed to last five years. It became
apparent, at least by the early part of 1996, not only that the
5-year estimate would not be exceeded, but that the project might
well wind down even sooner. Lending the temporary employees out,
and thus delaying any final decision as to their placement or
termination, appears to have been not only justifiable but
Finding none of the General Counsel's points persuasive, and
perceiving no other basis for inferring a discriminatory
motivation, I conclude that the General Counsel has not established
a prima facie case and recommend that the Authority issue
the following order.
The complaint is dismissed.
Issued, Washington, DC, December 15, 1997.
Administrative Law Judge
1. The index to the transcript shows incorrect page numbers for the witnesses and the exhibits, in the format in which the "Original" transcript appears. I note here only certain basic corrections for the aid of readers of the transcript. The testimony of each witness begins at the page shown below after the witness's surname: Blackman - 22; Williams - 52; Hobbs - 60; Howell - 110; Sanders - 119; Hadden - 131; Blackman (rebuttal) - 136. General Counsel's Exhibits were identified at pp. 4-9 and were all received on p. 9. Respondent's Exhibits 1-6 were identified and received on pp. 57-59. Respondent's remaining exhibits were identified and received at the following pages: No. 7 - Id. 69, Rec. 75; No. 8 - Id. 78, Rec. 80; No. 9 - Id. 83, Rec. 86; No. 10 - Id. 86, Rec. 90; No. 11 - Id. 113, Rec. 114; No. 12 - Id. and Rec. 124; No. 13 - Id. 124, Rec. 125; No. 14 - Id. and Rec. 125; No. 15 - Id. and Rec. 126; No. 16 - Id. 132, Rec. 135.
2. Exceptions to Judge Devaney's decision are pending before the Authority. Therefore, I cannot rely on his findings of fact. However, the record in the instant case, and the representations of both counsel, are consistent with Judge Devaney's evidentiary findings with regard to the overall repainting process.
3. "Adalyne," or "alodine," as it was spelled in the transcript of the hearing in Case No. AT-CA-50193, is, technically, a neologism, but would appear to be a garbled version of "anodize" (to coat a metallic surface electrolytically with a protective oxide). Were the intended word, rather, the near-homonym, "anodyne," we would be dealing with a program to soothe or comfort the airplanes.
4. There was testimony in Case No. AT-CA-50193, and apparently Judge Devaney so found (see his decision at 3) that at least some of these substeps were eliminated when, as noted below, the WEA work was reassigned to the painters.
6. Assignment of depainting work to the painters, aside from its being required during overtime hours, is not part of the complaint in this case, nor does the underlying unfair labor practice charge, although it refers to "other retaliatory acts," specify such assignment.
9. The Authority appears to have entertained an approach broader than the one articulated in Letterkenny in U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Boston, Massachusetts, 37 FLRA 25, 37 (1990), where it stated that "the issue is whether the General Counsel has proved by a preponderance of the evidence that the Respondent's decisions to remove the water coolers . . . were in retaliation for the Union's filing of a grievance . . . ."
10. In making this determination, I have relied on the evidence in the record as a whole and not the General Counsel's evidence viewed in isolation. See Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1532, 1558-59 (1994); Golden Flake Snack Foods, 297 NLRB 594 n.2 (1990).
12. Counsel for the General Counsel notes that there was at least some work available that the WG-5 employees were qualified to perform, so that Respondent had options other than assigning all of it to the painters. This is insufficient, however, to warrant the inference that the option Respondent chose was motivated by protected activities described in section 7116(a)(4).