[ v19 p956 ]
19:0956(114)CA
The decision of the Authority follows:
19 FLRA No. 114
DEPARTMENT OF THE TREASURY
UNITED STATES CUSTOMS SERVICE
REGION IV, MIAMI, FLORIDA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 34-CA-30615
DECISION AND ORDER
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. The Respondent and the Charging Party filed
exceptions to the Judge's Decision, and the Charging Party filed a
response to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions, and recommended Order. /2/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of the Treasury, United States Customs Service,
Region IV, Miami, Florida, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing John Brothers, or any
other employee, in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by commenting during the course of a
detail selection process concerning the negative effect of John
Brothers' official position in, or activities on behalf of, the National
Treasury Employees Union, or any other labor organization.
(b) Discouraging membership in a labor organization by refusing to
assign John Brothers to any detail because of his official position in,
or activities on behalf of, the National Treasury Employees Union.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Include John Brothers in the group award given to employees of
the United States Customs Service, Norfolk District, who were assigned
to the Automated Cargo Clearance Enforcement Processing Techniques
Program during the period September 6, 1983 to October 26, 1983, and pay
to him the sum of $100.00, the amount awarded to all of the employees
who participated in the group award.
(b) Post at its facilities at the United States Customs Service,
Region IV, Miami, Florida, and United States Customs Service, Norfolk
District, Norfolk, Virginia, copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt of
such forms they shall be signed by the Regional Director, United States
Customs Service, Region IV, Miami, Florida, or a designee, and shall be
posted and maintained for 60 consecutive days thereafter in conspicuous
places, including bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such 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, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., August 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, restrain, or coerce John Brothers, or any
other employee, in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by commenting during the course of a
detail selection process concerning the negative effect of John
Brothers' official position in, or activities on behalf of, the National
Treasury Employees Union, or any other labor organization. WE WILL NOT
discourage membership in a labor organization by refusing to assign John
Brothers to any detail because of his official position in, or
activities on behalf of, the National Treasury Employees Union. WE WILL
NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute. WE WILL include John
Brothers in the group award given to employees of the United States
Customs Service, Norfolk District, who were assigned to the Automated
Cargo Clearance Enforcement Processing Techniques Program during the
period September 6, 1983 to October 26, 1983, and pay to him the sum of
$100.00, the amount awarded to all of the employees who participated in
the group award.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director for the Federal
Labor Relations Authority, Region III, whose address is: 1111 18th
Street, NW., Suite 700, P.O. Box 33758, Washington, D.C. 20033-0758,
and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 34-CA-30615
John M. Griesbaum, Esquire
Glenda Hanthorn, Esquire
For the Respondent
Bruce D. Rosenstein, Esquire
David B. Scholl, Esquire
For the General Counsel
Steven P. Flig, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
It was alleged in the complaint that on or about July 26, 1983, the
Department of the Treasury, United States Customs Service, Region IV,
Miami, Florida (Respondent), by the act of Chief Customs Inspector,
Richard Boner, an agent of the Respondent at Respondent's Norfolk,
Virginia, District Office, informed John Brothers, a National Treasury
Employees Union (hereinafter referred to as "Charging Party," or
"Union") official, that Brothers had not been selected for detail to the
Automated Cargo Clearance and Enforcement Processing Techniques (ACCEPT)
team because of his position in Chapter 136 of the Union, and because of
his activities on behalf of the Union. It was further alleged that
during July of 1983, the Respondent, through Boner, informed certain
bargaining unit employees that Brothers would not be considered for
selection on the ACCEPT team because of the reasons outlined. It was
alleged that the conduct outlined was violative of Section 7116(a)(1) of
the Statute, and that Respondent's decision to exclude Brothers from the
ACCEPT team was violative of Section 7116(a)(2) of the Statute.
Counsel representing the General Counsel seeks a cease and desist
order, the posting of an appropriate notice, and an order that Brothers
be included in a group award conferred upon Norfolk District employees
who initially served on the ACCEPT team.
The Respondent argues in defense that Brothers would not have been
assigned to the ACCEPT team even in the absence of protected activity;
that Brothers was not assigned for legitimate reasons; that there is
insufficient evidence to show a violation of Section 7116(a)(2); and
lastly that inclusion of Brothers in the group award conferred upon
employees who first served on the ACCEPT team is a remedy which may not
be ordered by the Authority.
The Parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including exhibits and other relevant evidence adduced at the
hearing, /3/ and briefs filed by counsel representing the Respondent and
General Counsel, I make the following findings of fact, conclusions and
recommendations.
Statement of Facts
The ACCEPT Program
The ACCEPT Program involved the introduction of computer capability
to process data for the purpose of determining whether or not cargo
should be subjected to physical examination by Customs Inspectors. It
was designed to utilize manpower more efficiently by identifying "higher
risk" cargo for extensive examination, and by releasing remaining cargo
without subjecting it to physical examination.
The Port of Norfolk was selected as a test area for the introduction
of the ACCEPT Program nationally by the Customs Service. This decision
was made in June of 1983. Actual operation was scheduled for early
September of 1983, to coincide with the annual rotation of Customs
Service personnel in Respondent's Norfolk District. Responsibility for
implementing the program in the Norfolk District was assigned to Albert
Tennant, Assistant District Director, Inspection and Control Division,
Norfolk District; and to Richard Boner, Chief Inspector, Inspections
Branch, Inspection and Control Division, Norfolk District Headquarters.
/4/
In order to initiate the program in the Norfolk District, Senior
Customs Inspector Paul Shock, and Customs Inspector Allen Fuller were
selected by Tennant and Boner to plan the program, formulate procedures,
write guidelines, and recommend capable employees for detail to the
program during the initial startup period. /5/
On a date late in July of 1983, Boner, Shock and Fuller met to
discuss plans for the program. Shock and Fuller identified the
employees that they felt should be detailed to the ACCEPT team. Among
others, they identified John Brothers, President of Chapter 136 of the
Union as a candidate. The record disclosed that Brothers was the
Union's point of contact with Norfolk District management officials. He
determined whether the Union would request negotiations, represented the
Union in connection with negotiations, represented employees in
grievance matters and processed unfair labor practice charges. Prior to
July of 1983, Brothers, while acting as the Union's representative, had
dealt directly with Boner in negotiating sessions, and in the processing
of grievance and arbitration matters. In addition, management officials
of the Norfolk District were formally apprised that Brothers was the
President of Chapter 136, and that he was authorized to represent the
Union in dealings with the Norfolk District.
The Decision to Exclude Customs Inspector Brothers from the ACCEPT
Program
A number of the candidates identified by Shock and Fuller were
accepted by Boner; however, he refused to approve Brothers, stating
that he "didn't think it would be best for John to be in there because
it might lessen his integrity if he had to negotiate the impact
bargaining-- the impact of the unit." (Tr. 94, 113). /6/ The statement
quoted, taken from Boner's testimony at the hearing, was recalled by
Fuller in terms indicating substantially the same meaning. Fuller
testified that Boner said Brothers was a "a good inspector," but that he
(Boner) "would hesitate to place him in the ACCEPT office initially
because . . . he felt it would compromise his position as union
president." (Tr. 58). Boner gave Shock and Fuller no other reason for
his decision because he "did not want to make it look like (he) was
trying to whitewash anything." (Tr. 116-117). Boner freely admitted
that "because of (his) prior experience . . . in the union chapter, . .
. (Boner knew) that (he) had stepped into certain areas." (Tr. 117) /7/
On July 26, 1983, after Boner's conversation with Shock and Fuller,
Tennant invited Brothers to meet with him to discuss the ACCEPT Program.
Brothers attended the meeting in his capacity as a representative of
the Union, Tennant briefed Brothers concerning the background and
purpose of the program. The record disclosed that some members of the
bargaining unit had expressed concern that the program would result in
reductions in personnel levels as a result of anticipated reductions in
the number of cargo inspections. Tennant assured Brothers that he would
be receiving a copy of documents reflecting proposed policy and
procedures relating to the subject so that the Union would be able to
determine whether the Union should request negotiations concerning
implementation of the program.
Upon leaving Tennant's office, Brothers was met by Boner, and was
invited into Boner's office to discuss the same subject. /8/ Boner
noted the importance of the program, stressed the need to assign "good
inspectors" to the detail, and stated that Shock and Fuller had
recommended Brothers for the ACCEPT team. Boner informed Brothers that
their suggestion had been vetoed by Boner because of Brothers' Union
position (Tr. 21). He informed Brothers that since he would probably be
negotiating with management concerning the ACCEPT Program, he (Boner)
wanted to preserve Brothers' integrity as a Union negotiator (Tr. 21,
28, 101-102).
In reply Brothers advised Boner that he did not need Boner's help for
the purpose of preserving his integrity with bargaining unit employees
(Tr. 21), and that he did not think that his Union work should be a
factor in Boner's consideration of the issue (Tr. 102). Boner provided
no other reason for his decision to exclude Brothers, and at the hearing
testified that he "didn't want it to sound like (he) was trying to
whitewash or pan (his) way out (of) the thing." (Tr. 118).
Brothers was extremely interested in the assignment to the ACCEPT
team because he thought it would enhance his prospects for promotion.
Following the meeting with Boner, he contacted Inspectors Shock and
Fuller and they confirmed that Boner had in fact rejected Brothers for
the detail because of Brothers' position in the Union (Tr. 26).
Implementation of ACCEPT Program and Group Award Made to Initial
ACCEPT Team
Elements relating to the ACCEPT Program were made the subject of
local negotiations at the end of August, and the beginning of September
in 1983. Boner and Brothers were both involved in these negotiations on
behalf of Respondent and Union respectively.
Those employees finally assigned to the initial ACCEPT team included
two senior Customs Inspectors, five journeyman Customs Inspectors, one
Customs Inspector trainee, and two Inspectional Aids (Tr. 65, Jt. Exh.
No. 3). Elements of the initial detail commenced work during the first
week of September 1983. The detail became operational on September 12,
1983.
Charles F. Callis, a Supervisory Customs Inspector, assigned to
direct the initial group of employees detailed, recommended that
employees assigned to the team from September 12, 1983, through October
26, 1983, be given a group award in the amount of $300.00 for each
member of the group. /9/ An award in the amount of $100.00 was approved
by the Customs Service for each member of the group other than
Supervisory Customs Inspector Callis, and employees who had transferred
out of the group before completion of the initial phase of the operation
(Tr. 121). /10/
In a discussion with Supervisory Customs Inspector Callis after the
group award was made, Brothers was informed that the award was based
upon the work of the group as a whole, and that if Brothers had been
assigned to the initial ACCEPT team during the period in question, he
also would have been the recipient of a $100.00 award (Tr. 32-33). This
evidence was not contradicted. The record establishes that under the
terms of "Merit Promotion" provisions of the collective bargaining
agreement, such an award must be given consideration when a bargaining
unit employee is being evaluated for the purpose of promotion (Jt. Exh.
No. 2, Article 17, Section 8. A.). /11/
Counsel representing the Respondent endeavored to establish through
Boner's testimony that Brothers was not assigned to the ACCEPT team
because of considerations involved in the rotation of assignments. It
was contended that such consideration made it necessary to utilize
Brothers elsewhere in the Norfolk District. /12/ Boner also asserted
that Brothers tended to be "picayunish about things." (Tr. 110).
However, Boner never informed anyone of these negative factors, and he
did not otherwise attribute his decision to these considerations at the
time that the decision was formulated (Tr. 119). The record does
indicate that Boner did want employees on the detail who "followed . . .
instructions without any problems or any questions . . . . " (Tr. 109).
He sought employees who would make necessary changes without questioning
(Tr. 109). He suggested that Brothers did not meet these requirements
(Tr. 109, 116).
However, Boner's testimony established that Brothers had a way of
meticulously dissecting things, and that this was done "in an extremely
good fashion to the benefit of the Customs Service." (Tr. 109). /13/ He
was characterized as a seasoned Customs Inspector "who could do a good
job on the piers." (Tr. 110-111, 115). Boner testified:
Mr. Brothers is a highly qualified inspector. He has served at
National Headquarters Training Center as an instructor. I
recommended him for awards. (Tr. 116).
On September 8, 1983, a charge based on alleged violations of
Sections 7116(a)(1) and (2) of the Statute was filed (G.C. Exh. No.
1(a)). The record reflects the admission of evidence of negotiations
entered into by Boner and Brothers, and Brothers and Tennant, to resolve
allegations raised in the charge. These settlement negotiations
occurred immediately prior to, and just after, the filing of the charge,
and were related to the specific issues raised in the charge filed on
September 8th (Tr. 26-29, 42-46, 50-52, 103-104; G.C. Exh. No. 2; Jt.
Exh. No. 1). The parties did not object to the introduction of this
subject into the record, and freely referred to key portions of such
evidence in post-hearing briefs.
In order to foster an atmosphere conducive to the settlement of
unfair labor practice allegations, matters raised in connection with
such settlement deliberations may not be admitted or considered. It is
considered beneficial and necessary to assure to the parties involved in
settlement discussions that matters raised in connection with their
deliberations ultimately will not be admitted into evidence. U.S.
Department of Air Force, Norton Air Force Base, A/SLMR No. 261 (1973), 3
A/SLMR 175; Directorate of Facility Engineers, Fort Richardson, Alaska,
A/SLMR No. 946 (1977), 7 A/SLMR 1046; General Services Administration,
National Archives and Records Service, A/SLMR No. 1113 (1978), 8 A/SLMR
979; National Labor Relations Board and its General Counsel and
National Labor Relations Board, Region 29, A/SLMR No. 1143, 8 A/SLMR
1197, aff'd, 1 FLRA No. 28 (1979), 1 FLRA 220. The fact that the
parties involved offered such evidence or otherwise acquiesced
concerning its admission would not operate to modify the rules outlined.
Accordingly, such evidence and argument is not considered a part of the
record in this case, and no consideration has been accorded to evidence
or argument pertaining to the settlement negotiations described.
Discussion and Conclusions
The complaint alleges that Section 7116(a)(1) violations were
committed by the Respondent when Boner stated to Shock and Fuller, and
later to Brothers, his reasons for excluding Brothers from the ACCEPT
team. In both instances Boner clearly indicated that Brothers would not
be assigned to the detail because of Brothers' position as a Union
official. When speaking to Shock and Fuller, and later to Brothers, he
made it clear that it was Brothers' Union position that had made it
necessary for Boner to deny Brothers the opportunity to serve on the
ACCEPT team.
A determination of whether a statement violates Section 7116(a)(1)
must take into consideration all of the circumstances surrounding the
making of the statement. Internal Revenue Service, Mid-Atlantic Service
Center, 4 A/SLMR 519, A/SLMR No. 421 (1974); U.S. Customs Service,
Region IV, Miami, Florida, 1 FLRA No. 108 (1979), 1 FLRA 942; Veterans
Administration Medical Center, Shreveport, Louisiana, 3 FLRA No. 65
(1980), 3 FLRA 429.
That standard by which one may determine interference, restraint or
coercion, is not the subjective perceptions of the employee, nor is it
the intent of the employer. Rather the test is whether, under the
circumstances of the case, the employer's conduct may reasonably tend to
coerce or intimidate the employee, or, in the case of a statement,
whether the employee could reasonably have drawn a coercive inference
from the statement. The effect of the employer's statements must be
judged in light of circumstances in which words, innocent in and of
themselves, may be understood as threats. Federal Mediation and
Conciliation Service, 9 FLRA No. 31 (1982), 9 FLRA 199; Department of
the Treasury, Internal Revenue Service, Louisville District, 11 FLRA No.
64 (1983), 11 FLRA 290.
It is clear that Boner's statements to Shock and Fuller fell within
the purview of Section 7116(a)(1). The logical conclusion to be drawn
from the statements was that assignment to a desirable detail would be
denied to Brothers solely because he was a representative of Chapter
136. Boner's remarks conveyed the clear implication that participation
in Union activities would affect an employee's opportunity to serve on
new and challenging details, that participation in Union activity would
preclude selection for interesting work assignments, and that an
employee's career opportunities would be limited in the future if an
employee served the Union in a representative capacity.
Brothers had a right to assist and act on behalf of NTEU Chapter 136.
These activities were protected under the provisions of Section 7102 of
the Statute. Boner was the management official responsible for
selecting the employees who would serve on the initial ACCEPT team. He
was also Brothers' second-line supervisor, and this fact was known to
Shock, Fuller and Brothers. The statements made to these individuals
with respect to the reason for Brothers' non-selection, may reasonably
be construed as interference, restraint or coercion within the meaning
of Section 7116(a)(1). /14/ That is, the statements reasonably may be
construed as having interfered with, restrained, and coerced these
employees in the exercise of Section 7102 rights. /15/
Turning to the alleged violation of Section 7116(a)(2) arising out of
Boner's decision to exclude Brothers from the ACCEPT team it is noted
that in order to establish a violation of Section 7116(a)(2) there must
be a showing that the alleged victim of discrimination was engaging in
protected activity, that the agency had knowledge of such activity, and
that the agency took action because of union animus. United States
Department of Labor, 1 FLRA No. 120 (1979), 1 FLRA 1054; Veterans
Administration Center, Leavenworth, Kansas, 1 FLRA No. 111 (1979), 1
FLRA 977; U.S. Customs Service, Region IV, Miami, Florida, 1 FLRA No.
108 (1979), 1 FLRA 942; Department of the Navy, Norfolk Naval Base,
Norfolk, Virginia, 14 FLRA No. 97 (1984), 14 FLRA 731. The element of
discriminatory motivation needed to establish a Section 7116(a)(2)
violation may be inferred from circumstantial evidence. U.S. Customs
Service, Region IV, Miami, Florida, supra, Veterans Administration
Center, Leavenworth, Kansas, supra; Department of the Navy, Norfolk
Naval Base, Norfolk, Virginia, supra.
The Authority has also held that in examining discrimination where an
employee asserts a facially lawful business justification for the
alleged discriminatory action, it would examine such cases through an
analysis similar to that used by the United States Supreme Court in Mt.
Healthy City School District Board of Education v. Doyle, 529 U.S. 274
(1977) (involving conduct protected by the United States Constitution).
The Authority has stated that the burden is on the General Counsel to
make a prima facie showing that the employee engaged in protected
activity and that the prohibited conduct was a motivating factor in the
administrative action taken by the agency. Once this is established,
the agency may avoid responsibility only by showing by a preponderance
of the evidence that it would have reached the same decision or taken
the same action even in the absence of protected activity. Internal
Revenue Service, Washington, D.C., 6 FLRA No. 23 (1981), 6 FLRA 96;
Veterans Administration, Medical and Regional Office Center, White River
Junction, Vermont, 6 FLRA No. 68 (1981), 6 FLRA 381; Department of the
Navy, Norfolk Naval Base, Norfolk, Virginia, supra.
The record discloses that Brothers was engaged in protected
representational activity on behalf of the Union. He was President of
Chapter 136, and represented the Union on a wide range of issues in the
Union's dealings with the Norfolk District, and with Chief Inspector
Boner in particular. This representational activity included dealings
with Assistant Director Tennant and Chief Inspector Boner relative to
the implementation of the ACCEPT Program. Some of Brothers' contacts
with Norfolk District management on this subject occurred before
Brothers was apprised of Boner's decision to exclude Brothers from the
ACCEPT team. From these circumstances and Boner's references to
Brothers' Union position as a basis for Brothers' nonselection, it is
abundantly clear that the agency was aware that Brothers was engaged in
protected activity.
The record also indicates that the decision to exclude Brothers from
the detail was made solely because of Brothers' position as a Union
official engaged in protected activity. Boner's statements admit this
in large measure. He informed Shock, Fuller and Brothers that Boner's
position as Union president, or as Union negotiator, was the impediment
standing in the way of assignment to the ACCEPT team. He admitted
during the course of the hearing that he wanted to assign employees to
the ACCEPT team who would follow instructions without raising issues or
questions, and that he sought employees who would make changes without
questioning management. It may be inferred from the foregoing that
Boner did not want a Union official assigned to the initial ACCEPT team.
Counsel for the Respondent endeavored to establish that Boner's
motive included no animus toward the Union by stressing the fact that
Boner was merely endeavoring to help Brothers in some way by refusing to
assign him to the team. He advised Shock and Fuller that assignment
might lessen Brothers' integrity as a Union negotiator, and that
assignment would compromise Brothers' position as president of the
chapter. Similar language was used by Boner in his conversation with
Brothers when he advised Brothers of his decision to exclude him because
Boner wanted to preserve Brothers' integrity as a Union negotiator.
Boner's testimony clearly reflects an acknowledgement that at the time
he made the statements in question, he fully realized that he was
engaging in prohibited conduct, (Tr. 116-118). These admissions tend to
reflect the presence of union animus. Moreover, Boner had served as a
union president for a two-year period and would have been aware of the
frivolous or specious nature of his assertion that nonselection was
necessary to protect Brothers. If this argument were carried to its
logical extension, no bargaining unit employee would be able to engage
in negotiations on behalf of a labor organization without risking the
possibility of being eliminated as a candidate for details or work which
might in the course of events be made the subject of labor-management
negotiations. Boner was well aware that he was relying upon prohibited
factors as the basis for nonselection; but he nevertheless decided to
hold to his position despite Brothers immediate repudiation of Boner's
statements at the conclusion of the Boner-Brothers meeting on July 26th.
Efforts to attribute nonselection to facially lawful reasons
associated with the periodic rotation of personnel, and Brothers'
alleged picayunish nature, are also rejected as being pretextual.
Neither of these factors were mentioned to Shock and Fuller, or to
Brothers, despite Boner's realization at the time that he (Boner) had
attributed nonselection to a factor which should not have been given
consideration. Boner acknowledged the possibility that it would have
been necessary to "whitewash" his rationale for nonselection in order to
avoid challenge.
In addition to the foregoing, Boner advised Shock and Fuller that
Brothers was a "good inspector," and he did not then otherwise qualify
this evaluation. He admitted at the hearing that Brothers' meticulous
approach to work was done "in an extremely good fashion to the benefit
of the Customs Service," that he was a seasoned Customs Inspector, that
he was "highly-qualified," that he had served as an instructor for the
Customs Service, and that Boner had recommended him for awards. He
acknowledged that he had never before raised the issue of Brothers' lack
of qualification for the assignment. This evidence also indicates the
pretextual nature of Boner's belated attempt to impugn, Brothers'
qualifications for the assignment.
Other reasons may also be seen for not crediting Boner's attempt to
establish that Brothers' services were needed elsewhere in the Norfolk
District. Other than the self-serving assertions made by Boner, there
was no showing that Brothers' services were needed elsewhere, or that
some essential function of the Customs Service would be impaired if
Brothers performed representational activity while serving on the
initial ACCEPT team. Again, Boner acknowledged that he had never before
attributed nonselection to the necessity of rotating Brothers into
another assignment. The pretextual nature of Respondent's argument in
this area of interest is indicated by these additional circumstances.
/16/
The proof adduced establishes a prima facie showing that Brothers was
engaged in protected activity, and that his nonselection was caused
solely by reason of his participation in such protected activity. Even
assuming that Boner's decision to exclude Brothers was based on one or
more legitimate reasons for non-selection, together with prohibited
reasons related to Brothers' Union position, the record failed to show
by a preponderance of the evidence, that Boner would have reached the
same decision, or that he would have taken the same action, in the
absence of protected activity. Accordingly, it is concluded that
counsel for the General Counsel has met the burden of showing a
violation of Section 7116(a)(2), and a derivative violation of Section
7116(a)(1), based upon discriminatory conduct.
Counsel representing the General Counsel argues in his post-hearing
brief that in order to remedy the Section 7116(a)(2) violation, the
Respondent should be directed to include Brothers in the group
performance award that he would have received if he had been assigned to
the initial ACCEPT team, and that Respondent should be ordered to pay
Brothers the sum of $100.00, the amount given to other Customs employees
included in the group award. He argues that such an order is authorized
by the Back Pay Act, 5 U.S.C. 5596, and by regulations issued to
implement the Back Pay Act, 5 C.F.R. 550.801 et seq. However, both the
Back Pay Act and the implementing regulations make it quite clear that
the provisions of the Back Pay Act operate to authorize reimbursement of
"pay, allowances, or differentials . . . which the employee normally
would have received . . . . " It is clear that the $100.00 group
performance award would not fall within any of these three categories.
The Back Pay Act and implementing regulations authorize only payment of
an amount which the employee "normally would have earned or received" if
an erroneous personnel action had not occurred. Morris v. United
States, 595 F.2d (Ct. Cl. 1979); Hurley v. United States, 624 F.2d 93
(10th Cir. 1980); Community Services Administration, 7 FLRA No. 32
(1981), 7 FLRA 206. The Back Pay Act does not mention incentive awards,
and these awards would not normally be paid to employees for their
services. It covers normal employee benefits "in the nature of
employment compensation or emoluments . . . . " Community Services
Administration, supra.
However, the inapplicability of the Back Pay Act would not operate to
preclude such an award. It merely means that the Back Pay Act may not
be utilized as a basis for such an award in this case. The record is
clear that had Brothers been assigned to the initial ACCEPT team he
would have participated in the group award. /17/ As a result of the
Respondent's violation of Section 7116(a)(2) of the Statute, Brothers
was denied the opportunity to serve on the initial ACCEPT team.
Subsequent rotation to the team in March of 1984 for approximately six
months did not provide a complete remedy for the harm done. The unique
value of participating in a pilot program was lost to Brothers in large
measure. Although the Back Pay Act does not provide a basis for a
remedy in this case, it must be recognized that the provisions of the
Federal Service Labor-Management Relations Statute provide the Authority
with broad powers to effect remedial action for the purpose of carrying
out the policies of the Statute. Section 7105(g)(3) of the Statute
provides:
(g) In order to carry out its functions under this Chapter, the
Authority may--
. . . .
(3) . . . require an agency . . . to cease and desist from
violations of this chapter and require it to take any remedial
action it considers appropriate to carry out the policies of this
chapter.
Section 7118(a)(7) of the Statute specifically provides the Authority
with a mandate to effectuate remedial action in unfair labor practice
cases. Reference is made to orders requiring an agency to cease and
desist; requiring renegotiation of an agreement; requiring that such
agreements be given retroactive effect; requiring reinstatement with
backpay in accordance with the Back Pay Act; and orders requiring "such
other action as will carry out the purpose of this chapter." The
Authority has held that these provisions confer upon the Authority wide
discretion to fashion remedies. Interpretation and Guidance, 15 FLRA
No. 120 (1984), 15 FLRA 564.
In light of the egregious nature of the factual circumstances
presented concerning Boner's decision to exclude Brothers, the showing
that but for Boner's consideration of Brothers' Union position and Union
activities, Brothers would have been assigned to the initial ACCEPT
team; the showing that had Brothers been assigned to the initial ACCEPT
team he would have shared in the group award; and the showing that
Brothers did later serve on the ACCEPT team for about six months; it is
determined that the Respondent should be ordered to include Brothers
among those participating in the initial group award, and further that
he should be paid the sum of $100.00, the amount paid to others sharing
the group award.
Having found that the Respondent violated Sections 7116(a)(1) and (2)
of the Statute, it is recommended that the Authority issue the following
Order:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Customs Service, Region IV, Miami, Florida,
shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing John Brothers,
or any other employee, in the exercise of rights assured by the
Federal Service Labor-Management Relations Statute, by commenting
during the course of a detail selection process, concerning the
negative effect of John Brothers' official position in, or
activities on behalf of, the National Treasury Employees Union, or
any other labor organization.
(b) Discouraging membership in a labor organization by refusing
to assign John Brothers to any detail because of his official
position in, or activities on behalf of, the National Treasury
Employees Union.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Include John Brothers in the group award given to employees
of the United States Customs Service, Norfolk District, who were
assigned to the Automated Cargo Clearance Enforcement Processing
Techniques Program during the period September 6, 1983 to October
26, 1983, and pay to him the sum of $100.00, the amount awarded to
employees who participated in the group award.
(b) Post at its facilities at the United States Customs
Service, Region IV, Miami, Florida, and United States Customs
Service, Norfolk District, Norfolk, Virginia, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be
signed by the Regional Director, United States Customs Service,
Region IV, Miami, Florida, or his designee, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are
not altered, defaced, or covered by other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
LOUIS SCALZO
Administrative Law Judge
Dated: January 23, 1985
Washington, D.C.
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 interfere with, restrain, or coerce John Brothers, or any
other employee, in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute, by commenting during the course of a
detail selection process, concerning the negative effect of John
Brothers' official position in, or activities on behalf of, the National
Treasury Employees Union, or any other labor organization. WE WILL NOT
discourage membership in a labor-organization by refusing to assign John
Brothers to any detail because of his official position in, or
activities on behalf of, the National Treasury Employees Union. WE WILL
NOT in any like or related manner, interfere with, restrain, or coerce
our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute. WE WILL include John
Brothers in the group award given to employees of the United States
Customs Service, Norfolk District, who were assigned to the Automated
Cargo Clearance Enforcement Processing Techniques Program during the
period September 6, 1983 to October 26, 1983, and pay to him the sum of
$100.00, the amount awarded to employees who participated in the group
award.
(Agency or Activity)
Dated: . . . By: (Signature) This Notice must remain posted for 60
consecutive days from the date of posting and must not be altered,
defaced or covered by any other material. If employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director of
the Federal Labor Relations Authority, Region III, whose address is:
1111-18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
--------------- FOOTNOTES$ ---------------
/1/ In his Statement of Facts, the Judge correctly states that
employee Brothers testified that Supervisory Customs Inspector Callis
informed Brothers that the award here in question was based upon the
work of the ACCEPT team as a whole, and that if Brothers had been
assigned to the initial team he also would have been the recipient of an
award. However, as excepted to by the Respondent, the Judge
inadvertently states, at note 15 of his Decision, that Callis himself
testified to that effect. The Authority, noting that the Judge at note
15 is referring back to his earlier finding (at page 6 of his Decision)
as to Brothers' testimony, which was not contradicted, hereby corrects
this inadvertent error, which does not in any way affect the overall
findings in this case.
/2/ We limit our adoption of the Judge's conclusion that the Back Pay
Act does not serve as a basis for our remedy herein to the particular
circumstances of this case. With regard to the Authority's broad
remedial powers under section7105(g)(3) and 7118(a)(7) of the Statute,
see generally Department of the Treasury, Internal Revenue Service,
Atlanta Service Center, 18 FLRA No. 83, n.6 (1985); National Treasury
Employees Union and National Treasury Employees Union Chapter 121, 16
FLRA No. 102, n.2 (1984), petition for review filed, No. 85-1053 (D.C.
Cir. Jan. 25, 1985).
/3/ Counsel representing the General Counsel moved to correct errors
in the hearing transcript. Counsel representing the Respondent opposed
the motion in part; however, consideration of questioned portions of
the motion discloses that in each instance the proposed corrections were
appropriate as they correct obvious non sequiturs or clearly erroneous
elements of the transcript. Under authority reflected in 5 C.F.R.
2423.19(r), the proposed corrections are approved.
The following additional errors in the hearing transcript are also
noted and corrected:
PAGE LINE CHANGE
4 5 "director" to "director's" 4 5 "acquainted" to "complaint" 6
18 "ignore" to "omit"
70 16 "antiunion-- and just" to "there was no anti-union animus"
70 17 omit "is not an exhibit"
72 8 "the" to "in the"
72 20 "stand on" to "represent"
105 6 "reputation" to "representation"
105 19 "reputation" to "representation"
105 19 "here" to "clear"
105 20 "of a certain doz" to "clear as day"
106 12 "designated" to "dismissed"
/4/ Boner's Branch was located within Tennant's area of
responsibility. The Respondent's answer reflects an admission that
Boner had the position described, that he was a supervisor or management
official within the meaning of the Statute, and that he acted as an
agent of the Respondent at Respondent's Norfolk facility. Boner had
responsibility for overseeing activities relating to control and
inspection of cargo, and clearance of carriers and passengers.
/5/ Employees were not requested to volunteer or apply for the ACCEPT
Program.
/6/ Fuller testified that some of the employees recommended were
approved, and that Brothers was the only candidate subjected to comment.
Boner testified that about one third of the names suggested were
approved (Tr. 62-63, 68).
/7/ Boner testified that he had served as a union president for two
years prior to becoming a supervisor, and noted that he was aware that
he had erred in his handling of the matter. His testimony indicates
that he was clearly aware of the sensitivity of the issue involved (Tr.
96, 117).
/8/ Boner was Brothers' second line supervisor.
/9/ In March of 1984, Brothers was detailed to serve on the ACCEPT
team for a six month period. The detail ended early in October 1984
(Tr. 30, 83).
/10/ Boner endorsed the recommendation but reduced the amount to
$200.00. Assistant District Director Tennant, and District Director
James Cahill then reduced the amount to $100.00 (Jt. Exh. No. 3). Boner
testified that two employees assigned to the ACCEPT team were
transferred out prior to completion of the initial startup period (Tr.
121).
/11/ Although the collective bargaining agreement became effective
after the filing of the charge in this case, it is clear that the
provisions of the agreement would compel consideration of awards
received prior to the effective date of the agreement. Moreover,
consideration of such awards would be anticipated in the normal course
of events even in the absence of a contractual provision. On the basis
of the foregoing, and in light of the fact that the agreement was
entered into the record as a joint exhibit, Respondent's post-hearing
motion to strike references to the collective bargaining agreement in
the brief filed by the General Counsel is denied (Respondent's brief at
page 19).
It is noted that Respondent's counsel refers to the agreement as "Jt.
Exh. No. 3," rather than "Jt. Exh. No. 2," the correct designation.
/12/ Consideration of evidence relating to the rotation system
described disclosed no indication of a rotation policy which would have
required that Boner rotate only certain Customs Inspectors other than
Brothers into the ACCEPT team, or that Brothers be assigned elsewhere in
order to conform to an established policy.
/13/ As previously noted, the record also reflects that during
Boner's discussion of ACCEPT team candidates with Inspectors Shock and
Fuller in July of 1983, Boner "agreed that (Brothers) was a good
inspector . . . . " (Tr. 58).
/14/ Although, it is unnecessary to prove that an employee did
actually consider the statements to be coercive in nature, it is noted
that the record reflects proof which may be construed as evidencing the
fact that Brothers did feel that Boner's statements to Brothers
interfered with rights conferred by the Statute (Tr. 21).
/15/ The statements alleged in the complaint and established as a
basis for Section 7116(a)(1) violations were not protected as free
speech under Section 7116(e) of the Statute since the statements were
clearly made under coercive conditions. Department of the Treasury,
Internal Revenue Service, Louisville District, supra; United States Air
Force, Lowry Air Force Base, Denver, Colorado, 16 FLRA No. 128 (1984),
16 FLRA 952.
/16/ In Department of the Navy, Norfolk Naval Shipyard, Portsmouth,
Virginia, 15 FLRA No. 165 (1984), 15 FLRA 867, the Authority recognized
that irreconcilable conflicts may arise between management's right to
insist on the performance of a job that cannot be deferred and an
employee's right to engage in protected union activity. It was noted
that where such conflicts arise, management must be free to assign the
employee, without loss of pay, to other duties that will not impair any
essential function of the agency, but will permit the employee to
perform those other duties and to also engage in protected union
activity. The decision held that it was management's burden to show
that a transfer in derogation of protected rights is warranted. Here,
the record is devoid of any showing that the exercise of protected
rights by Brothers while serving on the initial ACCEPT team would have
impaired an essential function of the Customs Service.
/17/ As noted, Supervisory Customs Inspector Callis testified that
the award was made to the initial ACCEPT team based upon the work of the
team as a whole, and that Brothers would have received the award had he
been assigned to the initial ACCEPT team. This evidence was not
contradicted by the Respondent.