34:0928(155)CA - - EEOC, Jackson Area Office, Jackson, MS and National Council of EEOC Locals No. 216, AFGE Local 3599 - - 1990 FLRAdec CA - - v34 p928
[ v34 p928 ]
The decision of the Authority follows:
34 FLRA No. 155
FEDERAL LABOR RELATIONS AUTHORITY
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
JACKSON AREA OFFICE
NATIONAL COUNCIL OF EEOC LOCALS NO. 216
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
February 23, 1990
Before Chairman McKee and Member Armendariz.(*)
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge issued in the above-entitled proceeding. The General Counsel filed exceptions to the Judge's decision. No opposition to the General Counsel's exceptions was filed by the Respondent.
The complaint alleged that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by including a statement concerning an employee's union activities in the employee's performance appraisal. The General Counsel filed a Motion for Summary Judgment (Motion) which was referred to the Judge. The Respondent then filed an opposition and a Cross-Motion for Summary Judgment (Cross-Motion).
The Judge concluded that in the absence of any dispute concerning the facts in the case, summary judgment was the appropriate mechanism for resolving the issue raised. The Judge concluded, based on the Motion, Cross-Motion and supporting documents, that the Respondent's conduct did not violate the Statute.
We agree with the Judge's conclusion and find that the Respondent's conduct did not violate the Statute. Therefore, the complaint is dismissed.
On about October 5, 1987, Ms. Flonzie Goodloe, who served as a representative or official of the Charging Party, received a performance appraisal which contained the following statements:
Any evaluation of this Investigator must be tempered by the fact that she is the Union President and has spent less than 400 hours in compliance during FY 87.
Most of the work in this job element is at least fully satisfactory. It is not possible to give an in depth critique since Ms. Goodloe is fully involved with Union problems at all levels and is frequently away from her duty station.
The General Counsel argued in its Motion that inclusion of the reference to Ms. Goodloe's union activities in her performance appraisal violated section 7116(a)(1) of the Statute. According to the General Counsel, protected activity may not be referenced, even non-judgmentally, in connection with performance discussions or appraisals. In support of its position, the General Counsel relied on Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 22 FLRA 91 (1986) (Social Security Administration) and cases cited therein arising under the Statute and Executive Order 11491. The General Counsel argued that because the Respondent placed the reference to Ms. Goodloe's union activities in the appraisal, the Respondent, as a matter of law, violated section 7116(a)(1) of the Statute.
In its Cross-Motion, the Respondent argued that the disputed language in the performance appraisal was not intended to coerce, restrain, or interfere with Ms. Goodloe's protected union activities. Instead, the language was precipitated by Ms. Goodloe's concern that she not be assigned compliance work because of the demands of her union activities. According to the Respondent, Ms. Jane Sample, who prepared the appraisal and is Ms. Goodloe's supervisor, was sympathetic to Ms. Goodloe's concerns and the two discussed how those concerns could be brought to the attention of higher management. The language that was placed in the appraisal was intended to convey to higher management the extent to which Ms. Goodloe was able to perform compliance work while concurrently fulfilling her union responsibilities. Additionally, the language was included in order to demonstrate "how remarkable a job Ms. Goodloe was doing in light of her union demands." Cross-Motion at 3. The Respondent further indicated that the parties' collective bargaining agreement and the General Performance Appraisal and Recognition System Handbook, governing the Respondent's employees, require that union duties be taken into account in assessing the performance of union representatives.
The Respondent also argued that the reference to Ms. Goodloe's union activities was not a negative one, but was merely a neutral or positive reference. The Respondent distinguishes the cases relied on by the General Counsel on the basis that the statements made in those cases were either explicitly or inferentially negative in tone, whereas the language in Ms. Goodloe's performance appraisal was not.
Finally, the Respondent argued that considering the totality of the circumstances presented in this case, Ms. Goodloe could not have drawn a coercive inference from the reference to union activity in her appraisal. In this connection, the Respondent pointed to a declaration made by Ms. Sample in which she stated that she harbors no union animus and that she and Ms. Goodloe have a long-standing and good working relationship and personal friendship.
III. Administrative Law Judge's Decision
The Judge rejected what he viewed as the General Counsel's attempt to establish a per se approach and find that protected activity cannot be considered or referenced, even non-judgmentally, in performance discussions or in performance appraisals. The Judge found, instead, that the test to be applied in determining whether an employer's conduct violates the Statute is an objective one, and is designed to demonstrate whether, under the circumstances, an employer's conduct could reasonably be foreseen to interfere with, restrain or coerce employees in the exercise of their rights under the Statute.
The Judge considered the circumstances presented and found that the reference to union activity in Ms. Goodloe's performance appraisal would not tend to interfere with the exercise of rights protected under the Statute. Rather, the Judge found that the reference in Ms. Goodloe's appraisal was intended to explain why she had spent less than 400 hours on compliance work and why no in-depth analysis could be made. The Judge added that the comment would not discourage an employee from exercising protected rights and, further, that the absence of an explanation to account for the limited time spent on compliance could have been far more harmful and unfavorable to Ms. Goodloe. In reaching his conclusion, the Judge cited the Authority's decision in Veterans Administration Medical Center, Leavenworth, Kansas, 31 FLRA 1161 (1988) (Veterans Administration), in which the Authority found, in part, that a statement to an employee that he was being rated low in the performance of certain duties because his union activities prevented him from performing those duties did not, under all the circumstances, violate section 7116(a)(1) of the Statute.
IV. General Counsel's Exceptions
The General Counsel excepts to the Judge's finding that the Respondent did not violate the Statute. The General Counsel also objects to the Judge's reliance on Veterans Administration. The General Counsel argues that Veterans Administration is distinguishable because the statement made to the employee in that case occurred during an oral mid-year performance review, which was not used for promotion or disciplinary purposes, and which merely sought to reach an accommodation between the employee's right to engage in union activities and management's right to accomplish its mission. The General Counsel contends that in this case, however, the statement was contained in a written, final performance appraisal which could affect disciplinary actions and Ms. Goodloe's promotion potential. The General Counsel also claims that the Judge failed to consider that the statement could have a coercive effect on other employees.
Finally, the General Counsel urges the Authority to reaffirm its earlier view, as set forth in Social Security Administration, that no reference to protected activity may be permitted in a written performance appraisal. The General Counsel distinguishes cases involving written appraisals, in which it argues that a per se approach should be applied, from cases involving oral statements, in which a totality of the circumstances test is applied.
V. Analysis and Conclusions
As noted, the General Counsel argues, based on Social Security Administration, that protected activity may not be referenced, even non-judgmentally, in connection with performance discussions. The General Counsel claims that a per se rule has been established which prohibits reference to union activity in performance appraisals.
Contrary to the General Counsel's claim, no per se rule applies in cases where management is alleged to have made unlawful statements. Rather, as the Judge correctly stated, the test to be applied in determining whether statements made by management to employees violate section 7116(a)(1) of the Statute is whether, under the circumstances, the statements could reasonably tend to interfere with, restrain or coerce employees in exercising their rights under the Statute. See, for example, Marine Corps Logistics Base, Barstow, California, 33 FLRA 626 (1988), motion to dismiss granted sub nom. Boyce v. FLRA, No. 88-7524 (9th Cir. Mar. 23, 1989) (Marine Corps Logistics Base) (a memorandum issued to an employee which allegedly linked the use of official time to the attainment of a performance rating did not violate the Statute, when all the circumstances surrounding the memorandum were considered). See also Department of the Army, Reserve Personnel Center, St. Louis, Missouri, 32 FLRA 665 (1988) (questioning a union official concerning his right to meet with an employee regarding a possible grievance was not coercive and did not tend to interfere with employees' protected rights). Accord Department of the Treasury, Internal Revenue Service, Louisville District, 11 FLRA 290 (1983) and Federal Mediation and Conciliation Service, 9 FLRA 199 (1982). Insofar as Social Security Administration and prior Authority decisions could be construed as establishing a per se rule that prohibits any reference to protected activity in a performance appraisal, those decisions will no longer be followed.
Consequently, consistent with Marine Corps Logistics Base, we will examine the circumstances in this case to determine whether the reference to Ms. Goodloe's union activities in her performance appraisal could reasonably tend to interfere with, restrain or coerce Ms. Goodloe or any other employee in exercising rights guaranteed by the Statute.
Considering the circumstances surrounding the performance appraisal, as did the Judge, we find that there was no evidence presented to demonstrate in what manner the appraisal could be viewed as tending to interfere with Ms. Goodloe's rights to engage in protected activity. When viewed in the context of the supervisor's statement that "[m]ost of the work in this job element is at least fully satisfactory[,]" we find nothing in the disputed language itself which could reasonably be interpreted to discourage an employee from engaging in protected activities. In addition, there is no evidence that other employees were even aware of the appraisal so that the appraisal could have arguably tended to interfere with, restrain or coerce employees in the exercise of their statutory rights.
In sum, we find