19:0956(114)CA - Treasury, Customs Service, Region IV, Miami, FL and NTEU -- 1985 FLRAdec CA



[ 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