17:0435(71)CA - HHS, SSA, Baltimore, MD and Wilkes-Barre Data Operations Center and AFGE -- 1985 FLRAdec CA



[ v17 p435 ]
17:0435(71)CA
The decision of the Authority follows:


 17 FLRA No. 71
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES 
 SOCIAL SECURITY ADMINISTRATION 
 BALTIMORE, MARYLAND AND WILKES-BARRE 
 DATA OPERATIONS CENTER 
 Respondent 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO 
 Charging Party
 
                                            Case Nos. 2-CA-20200 
                                                      2-CA-20346
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent has not engaged in
 the unfair labor practices alleged in the consolidated complaint and
 recommending that the complaint be dismissed in its entirety.  There
 after, the General Counsel filed exceptions to the Judge's Decision, and
 the Respondent filed an opposition to the exceptions.  /1/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings and conclusions, based upon his credibility
 determinations, that the Respondent did not discriminate against Robert
 Kopko either by failing to rehire him as a temporary mail and file clerk
 on the day shift or by subsequently terminating his temporary employment
 as a mail and file clerk on the night shift, as alleged in the
 complaint.  /2/ Accordingly, the complaint shall be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the consolidated complaint in Case Nos. 2-CA-20200
 and 2-CA-20346 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., April 15, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 2-CA-20200, 2-CA-20346
    Irving L. Becker, Esquire
    For the Respondent
 
    Lee Mingledorff, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns a consolidated unfair labor practice complaint
 issued by the Regional Director, Region II, Federal Labor Relations
 Authority, New York, New York, against the Department of Health and
 Human Services, Social Security Administration, Baltimore, Maryland and
 Wilkes-Barre Data Operations Center (Respondent) based on charges filed
 by the American Federation of Government Employees (Charging Party or
 Union).  The complaint alleged, in substance, that Respondent violated
 sections 7116(a)(1), (2), and (4) of the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute),
 by (a) on or about January 11, 1982, failing to select Robert Kopko for
 a mail and file clerk position on the day shift, (b) on or about January
 18, 1982, by selecting Robert Kopko for a mail and file clerk position
 on the night shift, and (c) on or about April 2, 1982, by terminating
 the employment of Robert Kopko as a mail and file clerk on the night
 shift.  The complaint alleges that these actions were taken by
 Respondent because of Kopko's membership and activities in behalf of the
 Union and/or because he provided information or testimony under the
 Statute.  Respondent's answer admitted the jurisdictional allegations
 relating to the Respondent, Charging Party, and the filing of the
 charges, but denied any violation of the Statute.
 
    A hearing was held in Wilkes-Barre, Pennsylvania.  The Respondent and
 the General Counsel, FLRA were represented by counsel and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  The Respondent
 and the General Counsel filed helpful briefs, and the proposed findings
 have been adopted in whole or in substance where found supported by the
 record as a whole.
 
                             Issues Presented
 
    1.  Was Mr. Kopko at the time he applied for employment with
 Respondent, on or about January 11, 1982, an "employee" within the
 meaning of Section 7103(a)(2) of the Statute so that Respondent's
 decision not to reemploy him could form the basis of an unfair labor
 practice under Section 7116(a)(1), (2), and (4) of the Statute.
 
    2.  Is the complaint in Case No. 2-CA-20200 barred by Section 7116(d)
 based on Kopko's discrimination complaint or on other appeals available
 to him as an applicant for employment.
 
    3.  Did Respondent fail to select Kopko for a day shift mail and file
 clerk position on January 11, 1983 because he engaged in protected
 activity under the Statute.
 
    4.  Was Kopko's termination as a mail and file clerk on the night
 shift, on or about April 2, 1982, an unlawful result of Respondent's
 discriminatorily failing and refusing to employ him on the day shift on
 January 11, 1983.
 
    Based on the entire record, including my observation of the witnesses
 and their demeanor, I make the following findings of fact, conclusions
 of law, and recommendations.
 
                           I.  Findings of Fact
 
    Robert Kopko began his employment with the Wilkes-Barre Data
 Operations Center as a temporary clerk on February 12, 1979.  Because of
 lack of work, his employment was terminated on September 28, 1979.  On
 October 29, 1979, he was again employed as a temporary employee for one
 year.  This appointment was extended for an additional year until
 October 28, 1981, when his employment term expired.  During his
 employment, from February 1979 through October 1981, Kopko worked on the
 day shift (7:30 a.m. to 4:00 p.m.) as an entry level GS-3
 shipping/receiving clerk or mail and file clerk.
 
    Kopko was an above average employee during his first and part of his
 second appointment and received recognition for his work.  In June 1980,
 he received a letter from the Center Director for exceeding performance
 requirements during the period December 1979 to May 1980 and was given a
 special achievement award of $75.00.  He received two employee
 suggestion awards of $25.00 and $50.00 in January of 1981.
 
    Kopko's attitude toward his job began to change in April of 1981.  He
 became insubordinate to a number of supervisors.  He refused to
 initially perform certain assignments, remarking that he was only a
 temporary GS-3, or making other inappropriate comments.  He was orally
 counseled by his supervisor on two occasions.  In April 1981, he was
 insubordinate to Rita Stephanski, a supervisor.  On this occasion, his
 supervisor received a written complaint from Stephanski and counseled
 Kopko in writing.  She also brought the matter to the attention of her
 supervisors, including Robert Dominick, support services supervisor.
 
    Kopko filed a grievance concerning the written counseling.  Another
 incident occurred regarding the use of a tape recorder to record the
 first step grievance meeting between Kopko, his representative, and
 Stephanski.  Kopko indicated to Stephanski that higher management had
 approved the use of the tape recorder at the first step meeting.
 However, this was not the case.  Management called a special meeting
 with the Union to discuss the matter of the unauthorized taping.
 
    In late 1980 and early 1981, Kopko gave information to two Authority
 agents who were investigating unfair labor practice charges.  Kopko
 furnished his supervisor with the original copy of an incompleted
 affidavit in Case 2-CA-786 after speaking with the Authority agent.
 
    In May 1981, sometime after the Stephanski insubordination incident,
 Kopko because the only Union steward for the Administrative Services
 Division.  As a steward, Kopko helped write up some grievances.  He did
 not make oral presentations of the grievances.  He also worked with the
 Union on some bargaining proposals.  Kopko brought evidence to the Union
 that led to the filing of an unfair labor practice charge against the
 head of the Administrative Services Division, Daniel Dervin, concerning
 alleged alteration and circulation of an unfair labor practice charge.
 The charge was dismissed, but Dervin appeared less friendly to Kopko
 thereafter.  /3/ Kopko also filed safety and health complaints, some
 against his immediate supervisor.
 
    Management was aware of Kopko's Union activities.  Kopko received
 whatever official time he needed to carry out his representational
 activities and was never criticized for his use of official time.
 
    After the expiration of his term of employment on October 28, 1981,
 Kopko again applied for employment as a temporary dayshift clerk to
 begin January 6, 1982.  He was not selected for this position.  Robert
 Dominick, support services supervisor, whose testimony I credit, was the
 selecting officer for the temporary employees who were hired at that
 time.  Dominick took into consideration the incidents of insubordination
 relating to Kopko and felt that he was not among the best qualified
 employees due to the need for employees in the support services division
 to have daily interaction with other supervisors.  He also considered
 the fact that Kopko had lied about being given permission by management
 to tape record a grievance meeting.
 
    All temporary employee appointments depend on there being available
 work to perform, and no one can definitely state how long an appointment
 will last.  However, mail clerks hired for the day shift generally are
 employed for a longer period of time than mail clerks employed for the
 night shift.
 
    Fifteen mail clerks were hired for the day shift and four for the
 night shift effective January 11, 1982.  Six of them had worked
 previously for the Wilkes-Barre facility, but only two had worked as
 mail and file clerks.  None of the six had been a Union member or active
 in the Union.
 
    After being advised that he was not selected for the day shift
 position, Kopko filed an EEO complaint alleging that he was not rehired
 due to a speech impediment.  /4/ On January 11, 1982, Kopko's EEO
 complaint was investigated by an EEO counselor, Edward Cooper.  Cooper
 interviewed all management officials who regularly had contact with
 Kopko during his previous employment.  One of the persons interviewed
 was Robert Dominick, the selecting official for mail clerks in January.
 Cooper asked Dominick what criteria were used in selecting a mail and
 file clerk and why Kopko had not been selected.  Mr. Dominick stated
 that there were no criteria for the selection other than giving some
 other people a chance at the job.  Dominick did not state that he was in
 any way dissatisfied with Kopko's prior performance as a mail and file
 clerk.  Mr. Cooper also interviewed Daniel Dervin who stated that the
 only criterion used in selecting mail and file clerks was the desire for
 some new faces.  Finally, Mr. Cooper interviewed Ms. McCarthy and Ms.
 Rosalie Klosko, former immediate supervisors of Kopko.  Neither
 supervisor related any negative remarks concerning Kopko's desirability
 as an employee.  Ms. McCarthy stated that Kopko was a good worker.
 
    On January 14, 1983, Robert Dominick selected Kopko as a mail clerk
 for the night shift.  One of the night shift clerks hired on January 6,
 1983 did not report, and Dominick considered Kopko to be the next best
 qualified.  Kopko accepted this position and was rehired effective
 January 18, 1982.  The night shift hours were from 4:30 p.m. to 1:00
 a.m.
 
    On April 2, 1982, Kopko and four other temporary mail and file clerks
 assigned to the night shift were terminated because of lack of work.
 Mail clerks on the day shift were not furloughed until the fall of 1982.
 
    Subsequent to his employment with the Respondent, Kopko has worked
 for the Veterans Administration.  He has had some periods of
 unemployment.
 
             II.  Discussion, Conclusions and Recommendations
 
   A. Kopko was an "employee" within the meaning of section 7103(a)(2).
 
    Respondent contends that the allegation that Respondent violated
 sections 7116(a)(1), (2), and (4) of the Statute by failing to select
 Kopko for a position on or about January 11, 1982 (Case. No. 20200)
 should be dismissed inasmuch as Kopko was only an applicant for
 employment and not an "employee" within the meaning of section
 7103(a)(2) of the Statute when the alleged violations took place.
 
    Section 7103(a)(2) of the Statute provides:
 
          (2) 'employee' means an individual--
 
          (A) employed in an agency;  or
 
          (B) whose employment in an agency has ceased because of any
       unfair labor practice under section 7116 of this title and who has
       not obtained any other regular and substantially equivalent
       employment, as determined under regulations prescribed by the
       Federal Labor Relations Authority;  . . .
 
    Section 7116(a)(1), (2) and (4) of the Statute provides:
 
          (a) For the purpose of this Chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
          (2) to encourage or discourage membership in any labor
       organization by discrimination in connection with hiring, tenure,
       promotion, or other conditions of employment;
 
                                .  .  .  .
 
          (4) to discipline or otherwise discriminate against an employee
       because the employee has filed a complaint, affidavit, or
       petition, or has given any information or testimony under this
       chapter;  . . ."
 
    Section 7116(a)(2) does not use the term "employee." Giving the
 common meaning of "hire" or "hiring," /5/ I agree with the position of
 the General Counsel that "discrimination in connection with hiring" in
 section 7116(a)(2) includes a discriminatory refusal to hire or rehire
 an applicant for employment.  In Executive Order 11491, the precursor to
 the Statute, section 19(a)(2) of Executive Order No. 11491 was
 substantially the same as section 7116(a)(2) and was also held to be
 applicable to alleged discriminatory failure to rehire.  Norfolk Naval
 Shipyard, Portsmouth, Virginia, A/SLMR No. 618, 6 A/SLMR 112 (1976).
 
    Given the purpose of Congress to protect employees in the exercise of
 their rights to "form, join, or assist any labor organization, or to
 refrain from any such activity, freely and without fear of penalty or
 reprisal," /6/ a former employee must be held to be an "employee" within
 the meaning of section 7103(a)(2) of the Statute for the purpose of
 section 7116(a)(1) and (4) of the Statute.  The words "otherwise
 discriminate" in section 7116(a)(4) also must be found to include
 discrimination in regard to the rehiring of an employee.
 
    Respondent's position, that a temporary employee loses all statutory
 protection against retaliation for his union activity when his temporary
 employment ends, would seriously undercut the purpose of the Statute to
 encourage the employee exercise of statutory rights by protecting
 persons from retaliation.  No temporary employee, especially one in a
 position such as mail and file clerk where furloughs and rehirings are
 common, would feel free to join or participate in a labor organization
 with such an interpretation of the law.  In my view, the Statute should
 be broadly interpreted to further the Congressional objective, as has
 been the case with the comparable provisions of the Labor Management
 Relations Act, 29 U.S.C. 158(a)(1) and (4) in the private sector.  See,
 e.g., NLRB v. Sovair Manufacturing Co., 104 LRRM 2760 (6th Cir., 1979);
 NLRB v. Brake Parts Co., 447 F.2d 503, 514 (7th Cir., 1971);
 Dubin-Haskell Lining Corp. v. NLRB, 386 F.2d 306 (4th Cir., 1967).
 
         B.  Case No. 2-CA-20200 need not be dismissed pursuant to
 
                Section 7116(d).
 
    Respondent urges that the complaint in Case No. 2-CA-20200 should be
 dismissed pursuant to section 7116(d) of the Statute.  /7/ Respondent
 points out that Kopko filed a complaint of discrimination on the grounds
 that he was not reemployed because of his physical handicap.  Respondent
 also asserts that Kopko, as an applicant for employment, had the right
 to appeal to the Merit Systems Protection Board pursuant to 5 U.S.C.
 7701(a) and 5 U.S.C. 7702(a)(1).
 
    No showing has been made that the issues involved in the instant
 complaint "can properly be raised" under the appeals procedures cited by
 Respondent.  The issue in Mr. Kopko's equal employment opportunity
 complaint will necessarily be limited to the handicap discrimination
 issue raised by Mr. Kopko.  Cf. Department of Agriculture, U.S. Forest
 Service, Siuslaw National Forest, Corvallis, Oregon, 3 FLRA No. 42
 (1980);  Department of Health, Education and Welfare, Social Security
 Administration, Great Lakes Program Service Center, Chicago, Illinois, 2
 FLRA No. 12 (1979).  It appears that 5 U.S.C. 7701(a) and Sec.
 7702(a)(1) gives applicants only limited rights of appeal to the Merit
 Systems Protection Board concerning non-selection based on
 discrimination prohibited by the Civil Rights Act of 1964, the Fair
 Labor Standards Act of 1938, the Rehabilitation Act of 1973, or the Age
 Discrimination in Employment Act of 1973.  Thus, Respondent has failed
 to support its affirmative defense that section 7116(d) operates to bar
 the complaint in Case No. 2-CA-20200.
 
  C. A preponderance of the evidence does not establish the alleged
 violations of the Statute.
 
    The General Counsel contends that Respondent failed to select Mr.
 Kopko for the day shift mail and file clerk position on January 11, 1983
 because he engaged in protected activity under the Statute.  The General
 Counsel also claims that Kopko's termination as a mail and file clerk on
 the night shift on April 2, 1982 was an unlawful result of Respondent's
 discriminatory refusal to reemploy him on the day shift on January 11,
 1983.
 
    In order to establish a violation of sections 7116(a)(2) and (4)
 there must be a showing that the alleged discriminatee was engaged in
 protected activity, that the Respondent had knowledge of such activity,
 and that the Respondent took action against the discriminatee because of
 its anti-union animus.  Veterans Administration Medical Center, Buffalo,
 New York, 13 FLRA No. 46 (1983);  Department of Transportation, Federal
 Aviation Administration, Boston Air Route Traffic Control Center, Nashua
 New Hampshire, 11 FLRA No. 67 (1983).  Section 2423.18 of the Rules and
 Regulations, 5 C.F.R. 2423.18, based on section 7118(a)(7) and (8) of
 the Statute, provides that the General Counsel "shall have the burden of
 proving the allegations of the complaint by a preponderance of the
 evidence."
 
    The record establishes that Kopko was engaged in protected activity,
 and that Respondent had knowledge of such activity.  The General Counsel
 urges that circumstantial evidence establishes the element of
 discriminatory motivation.  The General Counsel points out that the
 reason for non-selection given at the hearing that Kopko was in some
 respects an undesirable employee, was pretextual and conflicted with the
 rationale given to the EEO counselor in January (the desire for new
 people or new faces in the job);  six of the clerks hired were former
 employees, but non-union members;  and that Kopko was an experienced and
 qualified employee.  The General Counsel contends that Respondent took
 the action because of Kopko's protected activities.  The General Counsel
 suggests that Respondent's management officials were displeased with the
 Union for having filed numerous unfair labor practice charges against
 their section.  He claims they were displeased with Kopko in particular
 for having filed safety and health complaints against a supervisor, for
 using official time, and for taking an altered charge form to the Union
 which led to the filing of an additional charge against the head of the
 section.
 
    While the trier of fact may infer motive from the total circumstances
 proved, the trier of fact is not compelled to draw such a conclusion.
 Veterans Administration, supra.  In this case, I decline to draw such an
 inference.  I have credited the testimony of Respondent's witnesses,
 particularly the selecting official, Robert Dominick, as to his reason
 for making the selection, namely that Kopko was not among the best
 qualified employees due to previous incidents of insubordination, and
 the testimony of supervisors Stephanski, Klosko, and Pissott as to these
 incidents.  I do not find the reason for the nonselection which was
 given to the EEO counselor in January to be so inconsistent (the desire
 for new people) with the reasons given at the hearing as to suggest
 another reason entirely.  The expressed desire for "new faces" meant
 that they did not want Kopko.  The record demonstrates that the reason
 they did not want Kopko on the day shift was dissatisfaction with his
 work performance and not his Union activities.  The record also shows
 that Kopko was subsequently properly selected for the night shift and
 was later terminated along with other night shift mail and file clerks
 because of lack of work.
 
    It is concluded that a preponderance of the evidence does not
 establish that Respondent violated sections 7116(a)(1), (2) and (4), as
 alleged.  Based on the foregoing findings and conclusions, it is
 recommended that the Authority issue the following order:
 
                                   Order
 
    It is hereby Ordered that the Consolidated Complaint in Case Numbers
 2-CA-20200 and 2-CA-20346 be, and it hereby is, DISMISSED.
 
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
 
 Dated:  February 17, 1984
         Washington, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The General Counsel 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 has 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 was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /2/ In adopting the Judge's conclusion that the preponderance of the
 evidence fails to establish that the Respondent discriminated against
 Kopko in violation of the Statute, the Authority finds it unnecessary to
 pass upon whether Kopko was an "employee" within the meaning of section
 7103(a)(2) of the Statute in the facts and circumstances of this case
 for purposes of the alleged section 7116(a)(1) and (4) violation.
 
 
    /3/ During the period between February 10, 1981 and August 26, 1981,
 the Union filed an average of one charge a month against the
 Administrative Services Division.
 
 
    /4/ Kopko apparently had the speech impediment in 1979, but did not
 disclose any speech impairment on his 1979 application.  Prior to being
 shown his 1979 application, Kopko testified that he did tell the agency
 about the handicap.
 
 
    /5/ The Random House College Directory defines "hire, hired, hiring":
 
          1.  to engage the services of for wages or other payment.
 
          2.  to engage the temporary use of at a set price.
 
          3.  to grant the temporary use of, or the services of, for a
       compensation . . . .
 
          4.  to pay for the desired action or conduct of . . . .
 
 
    /6/ See sections 7101 and 7102 of the Statute.
 
 
    /7/ Section 7116(d) provides:
 
          "(d) Issues which can properly be raised under an appeals
       procedure ma