13:0481(85)CA - Treasury, IRS, Andover Service Center, Andover, MA and NTEU -- 1983 FLRAdec CA

[ v13 p481 ]
The decision of the Authority follows:

 13 FLRA No. 85
 Charging Party
                                            Case No. 1-CA-563
                            DECISION AND ORDER
    The Administrative Law Judge issued his 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
 Charging Party filed exceptions to the Judge's Decision, and the
 Respondent filed an opposition thereto.
    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 findings, /1/ conclusions and recommendations that the complaint
 be dismissed.
    IT IS ORDERED that the complaint in Case No. 1-CA-563, be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., December 13, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
                              Charging Party
                                       Case No. 1-CA-563
    Robert F. Hermann, Esq.
          For the Respondent
    Barbara J. Collins, Esq.
          For the Charging Party
    Carol Waller Pope, Esq.
          For the General Counsel
    Before:  ALAN W. HEIFETZ
          Administrative Law Judge
                           Statement of the Case
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S,C. 7101 et seq., as a result
 of an unfair labor practice charge filed November 26, 1980, with the
 Federal Labor Relations Authority.  Consequently, on April 22, 1981, the
 Regional Director issued a complaint alleging that the Department of the
 Treasury, Internal Revenue Service, Andover Service Center (Respondent),
 in violation of Section 7116(a)(1) and (2) of the Statute, by
 discrimination discouraged membership in the National Treasury Employees
 Union (NTEU or the Union) by refusing to promote Kathleen Demers in July
 and August 1980, by refusing to grant her official time for the
 preparation of a grievance and by keeping surveillance records of her
 whereabouts at the Andover Service Center.  Respondent denies the
 allegations of the Complaint.
    A hearing was held on July 7 and 8, 1981, at Andover, Massachusetts.
 All parties were afforded full opportunity to examine witnesses, to
 introduce evidence, and to file briefs.  Upon the entire record,
 including my observation of the witnesses and their demeanor, I make the
 following findings, conclusions, and recommended order:
                             Findings of Fact
    Kathleen Demers began her employment with the Andover Service Center
 as a seasonal employee in January of 1969.  After two promotions, she
 resigned from her GS-4 tax examiner position in October 1971 to raise a
 family.  In January 1976 she was reinstated as a GS-2 seasonal clerk.  A
 year later she was promoted to a seasonal Grade 5 tax examiner in the
 Returns Analysis Branch.  In March 1979 she was selected and accepted a
 voluntary downgrade to GS-4 clerk in order to gain permanent employment
 status.  To date, she continues to work in that same position as a GS-4
 control clerk in the control unit of the Collection Branch.
    The National Treasury Employees Union has been the exclusive
 bargaining representative for bargaining unit employees at the Andover
 Service Center since August 12, 1980.  NTEU was certified on that date
 after a consent election held on August 5, 1980.  Prior to that
 election, the American Federation of Government Employees (AFGE) was the
 certified bargaining representative at the Andover Service Center.
    In April 1978 Ms. Demers became actively involved in NTEU's campaign
 to displace AFGE as the exclusive representative.  During NTEU's
 organizing campaign, AFGE filed an unfair labor practice charge against
 NTEU in which Ms. Demers was specifically named.  She, Gail Kenney,
 Sheila Dunbar and Shirley Hall became the nucleus of NTEU at the Andover
 Service Center.  Their efforts on behalf of the Union were engaged in
 openly and were known to the management of Respondent.  Like Ms. Demers,
 these three other women were selected in March and April 1979, by Branch
 Chief Harry Thurston and through competitive promotion procedures, for
 permanent GS-4 Control Clerk positions in the newly created Collections
 Branch.  They all worked under the supervision of Betty Benson.  Ms.
 Benson always evaluated Ms. Demers fairly and they had a good
 employer-employee relationship.  Eventually Ms. Kenney and Ms. Dunbar
 left the unit when they received competitive promotions.
    From February 1980 until she left the unit on June 23, 1980, /1/ Ms.
 Benson counseled Ms. Demers on numerous occasions concerning the
 utilization of official time, specifically her entitlement to official
 time for purposes of representing employees in agency grievances and the
 need for an accounting of her whereabouts while on official time.  Ms.
 Benson advised her that she was required to request supervisory
 authorization in advance to utilize official time for agency grievances.
  She was given a copy of the Agency Grievance Handbook and discussed
 these regulations with Labor Relations Chief Jane Goldberg.  Ms. Demers'
 request for a written interpretation of the Handbook was refused.
 Division Chief Thurston and Section Chief Eleanor McCann called Ms.
 Benson on several occasions concerned that Ms. Demers was properly
 utilizing her time according to the regulations.  Ms. Benson did not
 enjoy having to participate in the counseling sessions she was directed
 to hold with Ms. Demers.  At all times material to this case, Ms. Demers
 was acting in her capacity as an individual when she represented
 employees in agency grievances since NTEU had not as yet been certified
 as the exclusive representative and the subject matter was not covered
 by the AFGE contract in existence at that time.
    Denial of Official Time
    On July 14, 1980, Ms. Demers filed an agency grievance on behalf of
 herself and all other Control Clerks in her unit protesting the transfer
 of certain functions to the unit.  Because Shirley Hall was Acting Unit
 Supervisor and one of the grievants, Ms. Demers and Section Chief
 Eleanor McCann agreed that the latter would hear the grievance.
    At a meeting on the grievance on July 23, 1980, Ms. McCann stated
 that the work in question was being performed by Control Clerks at other
 Service Centers.  Ms. Demers said that she doubted that was so but that
 she would research the question.  She asked Ms. McCann for the FTC
 telephone numbers of the Service Centers she had spoken to and Ms.
 McCann obliged.  Ms. Demers then spent a total of two hours calling the
 Service Centers and interviewing supervisors as to the procedures in
 their units.  /2/ She told Shirley Hall the purpose of extended
 telephone use and, on one occasion, she gave Ms. McCann an update of her
 findings before continuing her telephonic research.  Ms. Demers charged
 these two hours to official time on her time report for July 25, 1980.
 She did not specifically request this official time in advance from
 either Ms. Hall or Ms. McCann and therefore she was counseled by both of
 them for misusing official time.  She was told that the time had not
 been properly requested and authorized in advance as required by the
 Grievance Handbook.  Over her protest, she was denied the two hours of
 official time and she signed for two hours of annual leave.
    Ms. Demers testified that she was confused as to the procedure for
 requesting official time and that instructions from the Chief of Labor
 Relations differed from what her immediate supervisor was telling her.
 /3/ She had been denied official time on occasions prior to this
 incident and, additionally, the unfair labor practice charge filed by
 AFGE, which named her as an active participant, alleged that she had
 been improperly utilizing official time to advance the NTEU cause to the
 detriment of AFGE.
    Record Keeping
    On numerous occasions over the period January through July 1980, Ms.
 Demers submitted various Freedom of Information Act (FOIA) requests to
 Henry Comacho, the Service Center's Disclosure Officer.  In April 1980,
 Ms. Benson counseled her about spending too much time visiting Mr.
    Prior to NTEU's August 12, 1980 certification, Compliance Division
 Chief Ronald Savoca spoke to Mr. Comacho of his concern that Ms. Demers
 was spending too much time away from her job visiting the Disclosure
 Office.  He asked Mr. Comacho to note each visit she made to his office,
 indicating the time and purpose of the visit, and to give these notes to
 Collection Branch Chief Thurston.  Thereafter, for a two day period Mr.
 Comacho made notes of this information in Ms. Demers' presence.  After
 two days, Mr.Thurston told him that the notes were not necessary and
 that he should discontinue making them.  Mr. Comacho had never been
 asked to make such notes of other employees.
    The July 1980 Selection
    Ms. Demers applied for a promotion to the position of GS-5 Tax
 Examiner (Accounts) in the Compliance Division, Examination Branch,
 Correspondence Processing Section.  Twenty-six employees applied for
 this position, including Cheryll Daly and Kathy Philips who were also
 Collection Branch Control Clerks.  /4/ Since all three worked for Ms.
 Benson, she prepared promotion performance appraisals for each and
 thereafter, in her new position as Examination Branch Supervisor, she
 was designated as the selecting official for the position.
    A ranking panel of three supervisors evaluated the candidates and
 determined those who were "highly qualified" and those who were "best
 qualified".  On July 9, 1980, Ms. Demers, Ms. Philips and Ms. Daly were
 the three who were certified as "best qualified", with ranking scores of
 65, 62 and 61, respectively.
    Ms. Benson received the application materials for those rated "best
 qualified" and she interviewed each candidate.  On July 14, 1980, after
 deliberating over a weekend, she selected Ms. Daly.  She deliberated
 over the weekend because she knew each of candidates well and she found
 the choice to be difficult.  She knew Ms. Demers to be an excellent
 employee, who could work quickly, and who, in her opinion, deserved
 promotion to the GS-6 level, let alone the GS-5 position which she had
 to fill.  However, after weighing the qualifications of all three, each
 of whom she found to be excellent and hard working, she chose Ms. Daly
 because she had the most IDRS /5/ experience and the greatest knowledge
 of transaction codes.
    The selection of Ms. Daly was made independently by Ms. Benson and
 she consulted with no one concerning her deliberative process.  She
 stated, "If you are asking if any one coached me, or anyone told me I
 could or could not select, this was totally my own decision.  As a
 matter of fact, I think they (management) markedly avoided the subject."
 In her interview with Ms. Demers, the subject of her Union activities
 did not come up and Ms. Benson did not consider her Union activities
 when she made her selection for the position.  /6/
    The August 1980 Selection
    On June 23, 1980, Respondent posted a vacancy announcement for the
 GS-6 position of Tax Examiner in the Compliance Division, Collection
 Branch, Taxpayer Delinquency Investigation (TDI) Unit I.  Due to
 unexpected retirements, the announcement was twice amended, finally to
 reflect four vacancies and to extend the application deadline until July
 21, 1980.  A fifth vacancy occurred but was immediately filled by a
 priority consideration candidate /7/ and therefore, the vacancy was
 never posted.  Another of the four vacancies was filled by priority
 consideration and therefore, at the time of the selection, three
 positions were vacant.  /8/
    Nineteen GS-3, 4 and 5 employees applied for the promotion and one
 GS-6 employee applied for lateral reassignment.  Each candidate was
 evaluated by the appropriate supervisor and a panel of three supervisors
 was convened to rank the candidates.  Seven employees were certified to
 the selecting official, Lois Earley, as "best qualified".  Those
 candidates and their scores were:  Ms. Demers, 69;  Maureen Ozoonian,
 64;  Peter Gallinaro, 58;  Sandra Auger, 52;  Hollyann Cochrane, 52;
 Ida DiGrazia, 51;  John Neal, 51.
    Lois Earley received their application materials and interviewed each
 candidate, including Jo Ellen Cooper who was applying for lateral
 reassignment, and excluding Mr. Gallinaro who was interviewed by another
 supervisor because of a vacation schedule conflict.  She asked each
 candidate the same questions at the interview.  At the outset of the
 interview with Ms. Earley, Ms. Demers mentioned that she had been
 elected president of the Union, and Ms. Earley responded that she knew
 and she congratulated Ms. Demers.  /9/ That was the only reference to
 the Union at the interview.
    In making her selections, Ms. Earley attempted to choose individuals
 who had particular skills and expertise which she considered to be
 lacking in her unit at the time.  On August 29, 1980, she selected Ms.
 Cooper, Ms. Auger and Mr. Neal.  Ms. Cooper was a lateral transfer who
 was selected for her accounting related skills and her personable manner
 which would be important for the many phone contacts with taxpayers
 required by the job.  Both Ms. Auger and Mr. Neal were from Entity
 Control and, therefore, had experience with pension plans and exempt
 organizations.  In addition, Ms. Earley gave consideration to Mr. Neal's
 collection experience in the private sector and his ability to make
 effective use of the telephone.  She did not question Ms. Demers'
 ability to perform the work of the unit with proper training.  She did
 find those she selected to have greater experience in adjustments,
 exempt organizations, pension plans and research than did Ms. Demers.
 In addition, since the duties of the position required a great deal of
 taxpayer telephone contact, Ms. Earley was concerned that Ms. Demers'
 temperament was too volatile in that she had noticed that Ms. Demers is
 explosive when she gets upset.  /10/
    Ms. Earley, who was once a union steward and who had held a
 collateral assignment as an equal employment opportunity counselor, gave
 no consideration to Ms. Demers' Union affiliation in making her
 selections.  She made her selections independently, without
 communication or discussion with any other management official.
                        Discussion and Conclusions
    Section 7102 of the Statute gives employees the "right to form, join,
 or assist any labor organization, or to refrain from any such activity,
 freely and without fear of penalty or reprisal." Interference by an
 employer with those rights by discrimination in connection with hiring,
 tenure, promotion or other conditions of employment is violative of
 Section 7116(a)(1) and (2) of the Statute.  However, the Statute does
 not offer protection to employees participating in concerted activities
 unrelated to membership in, or activities on behalf of a labor
 organization.  VA Med. Center, Bath, NY and AFGE Local 491, 4 FLRA No.
 76 (1980).
    The grievance filed by Ms. Demers on behalf of herself and other
 employees was not filed under either a contractual grievance procedure
 or the aegis of the Union.  Neither were the various Freedom of
 Information Act requests made to the Disclosure Office.  In both
 circumstances, Ms. Demers was acting only as a personal representative
 and not in her capacity as a Union Official.  Although the Union's
 efforts to displace AFGE at the Andover Service Center were contested,
 the record does not warrant any conclusion that Respondent has shown
 animus against NTEU.  The burden of proof is, of course, upon the
 General Counsel to prove animus.  That burden has not been satisfied in
 this case by the mere reference to the decision of Judge Sternburg in
 Internal Revenue Service Center, North Atlantic Service Center, Andover,
 Massachusetts, Case No. 1-CA-269, (OALF-81-040) (January 30, 1981).
 /11/ The events in that case took place at Respondent's Wilmington,
 Massachusetts annex, and moreover, the Labor Relations Specialist at
 Andover gave advice to the Wilmington official which was not
 inconsistent with Respondent's Statutory obligations.  Under these
 circumstances, particularly where no animus is shown, the refusal to
 grant official time and the notations made by the Disclosure Officer
 cannot be violative of the Statute since Ms. Demers' activities in this
 regard were unrelated to membership in, or activities on behalf of a
 labor organization.  Moreover, I note that Respondent's concerns over
 Ms. Demers' whereabouts and her use of official time were born out of
 its fear it could be charged by AFGE as the exclusive representative at
 Andover.  Hence, Respondent's actions in this connection have not been
 shown to be other than at least facially lawful.
    Although it is undisputed that Ms. Demers was engaged in protected
 activity when she expended her efforts on behalf of NTEU in its
 organizing campaign and it is undisputed that Respondent was aware of
 those activities, the record is totally devoid of any evidence upon
 which one might conclude that her nonselection for either promotion was,
 in any way, motivated by her engagement in such protected activity.
 Even if one were to find a mere suspicion of animus on the part of
 Respondent, the fact remains that both selections were made by
 supervisors who reached their decisions with deliberation, with no
 consideration of Union affiliation or activity, and with total
 independence from any other management official.  Since there is not
 even the proverbial scintilla of evidence to demonstrate that their
 selections were in any way influenced by any one else, their testimony
 alone becomes the focal point of analysis in this case.  Having closely
 observed their demeanor while they testified, I conclude that both Ms.
 Benson and Ms. Earley were credible witnesses, that they based their
 selections on rational considerations, and that those decisions were
 made without regard to Ms. Demers' Union affiliation or activity.
    For her part, there is no question that Ms. Demers is a bright,
 energetic and capable employee who possesses qualifications requisite
 for promotion.  Both supervisors candidly admitted as much.  There is
 also no question that she has been an active, articulate advocate for
 the Union.  Those facts, taken with the fact that the promotion
 selections were made in a time period surrounding a campaign and
 election, provide a setting in which discrimination could take place.
 However, a mere opportunity to act does not constitute evidence that
 such action has taken place.  In contrast to those facts which might be
 found to be conducive to discriminatory conduct, the record also shows
 that two other Union officials, who were active from the inception of
 the NTEU campaign and who were selected with Ms. Demers for a downgrade
 to achieve permanent employment status, successfully competed for
 promotions from their GS-4 Control Clerk positions.  Gail Kenney was
 Treasurer, and Shiela Dunbar was the Executive Vice-President of the
 Chapter and the chief steward.  In addition, there is no question as to
 the qualifications of those who were ultimately selected for the
 promotions in question.  Ms. Demers did have the highest score of those
 who were rated as "best qualified" but those who were selected did
 possess the qualifications necessary for promotion to the open job.
 Regarding the July selection for the GS-5 job, there is no question that
 Ms. Demers did have some IDRS experience and that she did have knowledge
 of transaction codes;  however, Ms. Benson's finding that Ms. Daly had
 the most IDRS experience and the greatest knowledge of transaction codes
 is unrebutted on the record.  Similarly, in regard to the August
 selection, there is no question that Ms. Demers had a breadth of
 experience which would qualify her for the job but, unrebutted on the
 record was Ms. Earley's assertion that the other candidates had greater
 experience and expertise in those areas in which her section was, at
 that time, deficient.  Also, having observed Ms. Demers' demeanor, as
 noted in footnote 10, Supra, I cannot say that Ms. Earley's concern
 about temperamental volatility was unfounded.  In short, I conclude that
 the July and August promotion selections were not based on any unlawful
 considerations.  Accordingly, I recommend that the Authority adopt the
    ORDERED, that the Complaint in Case No. 1-CA-563 is dismissed.
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
    Dated:  October 29, 1981
    Washington, D.C.
 --------------- FOOTNOTES$ ---------------
    /1/ The Charging Party excepted to certain credibility findings made
 by the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution is incorrect.  The Authority has examined the record
 carefully and finds no basis for reversing the Judge's credibility
    /1/ The General Counsel excepted to the Judge's failure to make a
 credibility determination as to whether the Respondent had expressly
 advised the Union on January 13 and January 28, 1981, that further
 changes in the Affirmative Action Plan might be made.  The Judge
 concluded that the agreement reached on January 28, 1981, was tentative,
 contingent upon approval by the senior installation Comman