35:0113(15)CA - - Letterkenny Army Depot and International Brotherhood of Police Officers Local 358 - - 1990 FLRAdec CA - - v35 p113
[ v35 p113 ]
The decision of the Authority follows:
35 FLRA No. 15
FEDERAL LABOR RELATIONS AUTHORITY
LETTERKENNY ARMY DEPOT
INTERNATIONAL BROTHERHOOD OF
POLICE OFFICERS, LOCAL 358
DECISION AND ORDER
March 14, 1990
Before Chairman McKee and Members Talkin and 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. Both the General Counsel and the Charging Party (the Union) filed exceptions to the Judge's Decision. The Respondent filed an opposition to the exceptions of the General Counsel and the Union.
The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and/or refusing to promote an employee because he had engaged in protected activity on behalf of the Union. The Judge found that no violation of the Statute had occurred and recommended that the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. Those rulings are affirmed.
We find, however, contrary to the Judge, that the Respondent's conduct violated the Statute. Accordingly, we will order the Respondent to retroactively promote the employee with backpay and to restore such benefits as will make the employee whole.
The facts, which are set out fully in the Judge's decision, are briefly summarized here.
George C. Webber, a guard at the Letterkenny Army Depot, was a "fairly active" Union president from January 1984 to early October 1986. Judge's Decision at 3. Mr. Webber was "involved in several . . . incidents which may not have pleased management." Id. at 4. In August 1986, Mr. Webber applied for a position as lead guard. On October 8, 1986, the second line supervisor "signed a selection register nominating Webber for the position[.]" Id. at 2.
Subsequently, Mr. Webber learned from another employee that his selection had been cancelled by the Respondent's Director of Administration on October 10, 1986. During a meeting to discuss the issue, Mr. Webber was informed by the Police Captain that "the wrong procedure had been used in making the selection and that the first line supervisor (a lieutenant) rather than the second line supervisor (the Chief), should have made the selection." Id.
The selection was rerun, with the same candidates being considered. Mr. Webber was not selected by the first line supervisor. Rather, "[o]f the same five candidates the position was given to the only non-union candidate[.]" Id.
III. Administrative Law Judge's Decision
Although the Judge stated that he regarded the "course of events here as highly suspicious[,]" he found "no evidence that any of [Mr. Webber's representational] activity invoked any threats or statements indicating that his supervisors/managers were disposed to seek revenge for such conduct." Id. at 7.
The Judge noted that subsequent to the cancellation of Mr. Webber's selection, the Police Captain stated to Mr. Webber's successor as Union president that "he was happy not to have to do business with Webber any longer and did not particularly care for unions." Id. The Judge characterized this statement as "rather mild evidence of animus[,]" and contrasted it with what he found to be "fairly firm evidence" that Mr. Webber's selection had been cancelled because the Director of Administration "strongly believed [that] first line supervisors should be required to choose their own right-hand men." Id.
The Judge found that the Director of Administration's belief that Mr. Webber's previous selection had been a "poor choice" was based, at least in part, on Mr. Webber's Union activities. Id. The Judge concluded, however, that:
There is a difference between deciding an employee has no future simply because he is a union activist, and deciding that his discharge of representational responsibilities demonstrates a lack of judgement [sic], ability or other factors required for a given promotion. The line may be thin, and difficult to draw, but it must be recognized if the application of the law is to be realistic.
Id. at 8.
The Judge concluded that the General Counsel failed to prove by a preponderance of the evidence that Mr. Webber's nonselection was motivated by his Union activities. Accordingly, the Judge recommended that the unfair labor practice complaint be dismissed.
IV. Positions of the Parties
A. The General Counsel's Exceptions
The General Counsel claims that the Judge's findings of fact do not comport with his conclusion that no violation of the Statute occurred. In particular, the General Counsel disagrees with the Judge's conclusion that the Respondent's consideration of Mr. Webber's protected activity was permissible. The General Counsel states:
Counsel for the General Counsel is unaware of any precedent for concluding that management may discriminate against an employee based on his protected union activities if it is determined that these protected activities demonstrate a lack of judgement [sic] or effectiveness. It is unfair and unrealistic to demand that a union representative be willing to risk his opportunity for promotion on an evaluation of the effectiveness of his union activities.
General Counsel Exceptions at 3.
The General Counsel maintains that the Administrative Law Judge's findings of fact "compel the conclusion that Respondent's nonselection of Webber was motivated by his Union activities." Id. As a remedy, the General Counsel requests that the Authority direct the Respondent retroactively to promote Mr. Webber to the position of lead guard and make him whole for the wages he lost as a result of the unfair labor practice.
B. The Union's Exceptions
The Union excepts to the Judge's decision on two grounds. First, the Union asserts that consistent with the Authority's decision in Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981) (IRS), the Judge failed to correctly allocate the burden of proof in this case. The Union claims that once the General Counsel made a prima facie showing that Mr. Webber was engaged in protected activity and that this activity was a motivating factor in the Respondent's decision not to select Mr. Webber, "the burden should have shifted to the [Respondent] to demonstrate by a preponderance of the evidence that it would have reached the same promotion decision absent Mr. Webber's protected activity." Union Exceptions at 2.
Second, the Union excepts to the Judge's conclusion that the Respondent was entitled to consider Mr. Webber's conduct while engaged in protected activity in evaluating his suitability for promotion. The Union claims that the Judge's conclusion establishes "an inappropriately high standard for statutory violations." Id. at 3. According to the Union, "[t]he Authority does not require anti-union threats or promises of revenge for union activities to establish a violation of the [S]tatute." Id. at 4.
C. The Respondent's Opposition
The Respondent argues first that the General Counsel's and the Union's exceptions were untimely filed. The Respondent claims that because the exceptions are untimely, they should not be considered by the Authority.
Alternatively, the Respondent argues that the record establishes that Mr. Webber's nonselection was based on factors other than his Union activities. The Respondent concedes that "Mr. Webber's representational activities may have contributed to a judgment as to his potential" for promotion. Respondent's Opposition at 3. The Respondent maintains, however, that "[v]alid reasons for Mr. Webber's nonselection, outside of his union activities, existed, were testified to . . . , and were found to be credible" by the Administrative Law Judge. Id.
V. Timeliness of the Exceptions
For the following reasons, we find that the General Counsel's and the Union's exceptions were timely filed.
The time limit for filing exceptions to an Administrative Law Judge's decision is 25 days after service of the decision. 5 C.F.R. § 2423.26(c). The date of service is the day the decision is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the decision is served by mail, 5 days are added to the time period for filing exceptions. 5 C.F.R. § 2429.22. If the last day of the time limit falls on a Saturday, Sunday, or Federal legal holiday, the time limit is extended until the end of the next business day. 5 C.F.R. § 2429.21(a).
The Judge's decision is dated September 22, 1988, and was served on the parties by mail on that same date. By operation of 5 C.F.R. §§ 2429.21 and 2429.22, the parties had until October 22 to file their exceptions. However, since October 22 fell on a Saturday, the due date for filing exceptions was extended to the end of the next business day--Monday, October 24. The General Counsel's and the Union's exceptions were postmarked on October 24, 1988. Accordingly, the exceptions were timely filed.
A. Analytical Framework
Before discussing the specific facts of this case, we wish to address the analytical framework to be applied in cases alleging violations of section 7116(a)(2) of the Statute. In particular, we note the Union's assertion that once the General Counsel made a prima facie showing of discrimination, the burden "should have shifted" to the Respondent to demonstrate that it would have reached the same decision in the absence of Mr. Webber's protected activity. Union Exceptions at 2. In response to this assertion, we emphasize two points.
First, the burden of proof always rests with the General Counsel. Section 2423.18 of the Authority's Rules and Regulations provides that "[t]he General Counsel . . . shall have the burden of proving the allegations of the complaint by a preponderance of the evidence." This is true in all cases of alleged discrimination, including "pretext" and "mixed motive" cases. In fact, the analytical framework applied to discrimination cases under section 7116(a)(2) is the same whether the case is labelled a "pretext" or a "mixed motive" case.
In all cases of alleged discrimination, whether "pretext" or "mixed motive," the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. 22nd Combat Support Group (SAC), March Air Force Base, California, 27 FLRA 279 (1987) (March Air Force Base). If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. See, for example, Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Cincinnati, Ohio, 26 FLRA 114 (1987), petition for review denied sub nom. American Federation of Government Employees, Local 2031 v. FLRA, 878 F.2d 460 (D.C. Cir. 1989); and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 25 FLRA 342 (1987), where the particular conduct engaged in by employees was found not to be protected under the Statute. See also Veterans Administration Medical Center, Leavenworth, Kansas, 31 FLRA 1161 (1988) and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 18 FLRA 55 (1985), where there was no evidence of discrimination.
Even if the General Counsel makes the required "prima facie" showing, an agency will not be found to have violated section 7116(a)(2) if the agency can demonstrate, by a preponderance of the evidence, that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. For example, IRS, 6 FLRA at 99 where the Authority referenced the approach taken by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) (Mt. Healthy). In Mt. Healthy, which involved conduct protected by the U.S. Constitution, the Supreme Court established a "test of causation" for the purpose of "protect[ing] against the invasion of [protected] rights without commanding undesirable consequences not necessary to the assurance of those rights." Id. at 286-87. The Court held that the burden was on the moving party to show that his/her conduct was protected and that this conduct was a motivating factor in the employment decision. At that point, the employer could demonstrate, by a preponderance of the evidence, that it would have reached the same decision even in the absence of the protected conduct.
It is erroneous to conclude, however, that because a respondent agency has an opportunity to establish that it had legitimate justification for taking the disputed action, the ultimate burden of proof shifts to the respondent to do so. The burden of proving the allegations of the unfair labor practice complaint rests solely with the General Counsel.
Second, even if the General Counsel makes the required prima facie showing, it is necessary to determine whether the General Counsel has proved the allegation in the complaint by a preponderance of the evidence. In this regard, a prima facie case consists only of "sufficient evidence . . . to get plaintiff past . . . a motion to dismiss[.]" Black's Law Dictionary 1071 (5th ed. 1979) (citation omitted). Only if the respondent offers no evidence in its support does a prima facie showing alone equate to proof by a preponderance of the evidence. See id. (noting that courts use the concept of a prima facie case to mean "not only that plaintiff's evidence would reasonably allow conclusion plaintiff seeks but also that plaintiff's evidence compels such a conclusion if the defendant produces no evidence to rebut it.") (citation omitted).
If, in response to a prima facie case established by the General Counsel, the respondent offers evidence, it is necessary to determine whether the respondent's evidence rebuts the General Counsel's prima facie showing. This determination is made on the basis of the entire record, including any evidence the General Counsel offers in rebuttal to the respondent's showing. If the respondent rebuts the General Counsel's prima facie showing by a preponderance of the evidence, thereby establishing that it would have taken the allegedly unlawful action even in the absence of protected activity, the General Counsel has not established a violation of the Statute.
In this regard, "pretext" and "mixed motive" cases differ in one respect only: in a "mixed motive" case, both lawful and unlawful reasons (motives) for the respondent's actions have been established. Because both lawful and unlawful motives have been established, it is necessary to determine whether the respondent would have taken the allegedly discriminatory action even without the unlawful motive. See, for example, United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, New Orleans District, New Orleans, Louisiana, 30 FLRA 1013 (1988) (involving the evaluation of an employee's performance while he served as a union steward) and Equal Employment Opportunity Commission, 24 FLRA 851 (1986), aff'd sub nom. Martinez v. FLRA, 833 F.2d 1051 (D.C. Cir. 1987) (concerning the discharge of an employee following the filing of grievances). In each of these cases, the respondent established a lawful motive for the action that was taken and demonstrated that it would have acted in the same manner even in the absence of the protected conduct.
In a "pretext" case, on the other hand, a motive asserted by a respondent to be lawful is found to be unlawful (pretextual). Accordingly, unless the respondent establishes that there was an additional lawful (nonpretextual) motive for its allegedly discriminatory action, it is not necessary to determine whether the respondent would have taken the disputed action even without the unlawful motive. See, for example, United States Forces Korea/ Eighth United States Army, 11 FLRA 434 (1983) (the Authority found that the respondent's refusal to approve an extension of the local union president's overseas tour of duty was motivated by his union activity and that the reason for denying the extension was pretextual).
We note that the General Counsel may seek to establish, as part of its prima facie case, that the reasons asserted by a respondent for its allegedly discriminatory action are pretextual. The General Counsel may also, however, seek to establish as its prima facie case, only that the respondent took action based on consideration of protected activity and, after presentation of a respondent's evidence of nondiscriminatory reasons, seek to establish that those reasons are pretextual. In addition, an administrative law judge, or the Authority, may conclude that a respondent's asserted reasons for taking an action are pretextual, even if those reasons were not asserted to be such during the unfair labor practice hearing.
We note also the Authority's holding in March Air Force Base, where the General Counsel asserted that the respondent had lowered an employee's performance appraisal because the employee had sought union assistance and filed a grievance. The respondent asserted that the appraisal was lowered for performance-related reasons. The administrative law judge found that the General Counsel had not established a prima facie case of discrimination.
The Authority disagreed with the judge's finding and concluded that "the alleged reasons for the lowered appraisal were pretextual." 27 FLRA at 282. The Authority stated:
The Judge . . . declined to draw an inference that the protected activity was a motivating factor in the treatment complained of by [the employee]. We find not only that such an inference is proper, but on careful consideration we conclude that the protectedactivity alone was the motivating factor, because the asserted performance-related reasons have not been established.
Id. The Authority emphasized its holding as follows:
Since we find that the asserted reason for the [r]espondent's action was pretextual, this is not a case where both legitimate and improper motives are found which would require us to consider whether the [r]espondent would have acted as it did even absent the improper motive. In other words, this is not a "mixed motive" case, subject to the analysis outlined in Mt. Healthy[.]
Id. at 285 n.2.
The Authority's statement in March Air Force Base that it was unnecessary to determine whether the respondent would have taken the allegedly discriminatory action without the unlawful motive because no other motive was established is consistent with the analytical framework discussed above. The Authority's statement concerning the applicability of Mt. Healthy, however, may be misleading. As previously noted, a respondent always may seek to rebut the General Counsel's prima facie case, whether or not that case includes evidence that the respondent's asserted reasons for taking the allegedly discriminatory action were pretextual. It is erroneous to conclude, therefore, that the Mt. Healthy analysis does not apply in a "pretext" case. Rather, a conclusion that a respondent's asserted reasons for taking allegedly discriminatory action are pretextual is based on consideration of all the evidence presented in a case, including evidence presented by a respondent to rebut the General Counsel's prima facie case.
Finally, we note that the analytical framework discussed herein is consistent with the framework applied in the private sector. The National Labor Relations Board (the Board) adopted the same test in discrimination cases arising under the National Labor Relations Act (the Act). See Wright Line, 251 NLRB 1083 (1980), enforced, 662 F.2d 889 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). Under a regulatory scheme that is comparable to that of the Statute, the Board held that its General Counsel bears the burden of proving the existence of unlawful discrimination by a preponderance of the evidence. An employer may attempt to rebut the General Counsel's allegations but this rebuttal is viewed by the Board as an affirmative defense. Although the Board characterized the Mt. Healthy test as a "shifting of burdens," the Board cautioned that:
[T]his shifting of burdens does not undermine the established concept that the General Counsel must establish an unfair labor practice by a preponderance of the evidence. The shifting burden merely requires the employer to make out what is actually an affirmative defense . . . to overcome the prima facie case of wrongful motive. Such a requirement does not shift the ultimate burden.
251 NLRB at 1088 n.11.
The Board's application of Mt. Healthy was sustained by the Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). There, the Court emphasized that the General Counsel bears the burden of proving the elements of an unfair labor practice and that the employer's advancement of an affirmative defense does not alter the elements of an unfair labor practice that the General Counsel must prove under the Act. Id. at 401.
In summary, we reaffirm that the General Counsel bears the burden of proving, by a preponderance of the evidence, that an unfair labor practice has been committed. In a case involving alleged discrimination under section 7116(a)(2) of the Statute, the General Counsel must establish that the respondent's allegedly discriminatory action was motivated by consideration of protected activity. The General Counsel may also seek to establish, as part of its prima facie case, that respondent's asserted reasons for taking the allegedly discriminatory action are pretextual, or after presentation of respondent's evidence of lawful reasons, may seek to establish that those reasons are pretextual. See Wright Line, 251 NLRB at 1088 n.12 ("The absence of any legitimate basis for an action, of course, may form part of the proof of the General Counsel's case.") (citation omitted).
If the General Counsel makes the required prima facie showing, a respondent may seek to rebut that showing by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. The analytical framework is the same in all cases involving alleged discrimination. Compare Wright Line, 251 NLRB at 1083 n.4 ("under the Mt. Healthy test, there is no real need to distinguish between pretext and dual motive cases.").
B. Application of Analytical Framework
The Judge concluded that the General Counsel failed to establish that Mr. Webber's nonselection was motivated by his Union activities. For the following reasons, we disagree with the Judge's conclusion. We find that Mr. Webber's Union activity was the sole reason for the cancellation of the selection register and that the Respondent did not demonstrate that it would have taken the same action in the absence of the protected activity. We further find that had the Respondent not unlawfully cancelled the selection register, Mr. Webber would have been selected for the lead guard position.
Our analysis requires an in-depth review of the testimony adduced at the hearing. We begin with a look at Mr. Webber's Union activities followed by an examination of the practice of lead guard selections.
The record indicates, and the Judge found, that Mr. Webber was an active Union president who was involved in several incidents "which may not have pleased management." Judge's Decision at 4. At least two of the incidents involved direct confrontations with the Director of Administration. Other incidents were elevated to higher levels of management.
The record also indicates that for many years, possibly as long as 20 years, the selecting official for lead guard positions was the Chief of Police, who was the second level supervisor. With regard to this practice, the Respondent's personnel staffing specialist testified that prior to October 1986, at which time the selection register at issue was voided, "it would have been [the] Chief" who made lead guard selections. Transcript of Proceedings at 126. Additionally, the first line supervisor, who was designated the selecting official when the register was reissued, also testified that the Chief had always made selections in the past and that the first line supervisor was surprised when he was given the task of making the selection. Id. at 111.
The record also indicates that on learning of Mr. Webber's selection, the Director of Administration questioned the Chief as to why the Chief had been the selecting official. The Chief replied that he had always made the selections. Id. at 98. The Director of Administration responded by saying "you're not going to do that any more. That's not the way I want to do it." Id. The Director of Administration also asked the Police Captain why the Chief was the selecting official rather than the first line supervisor. The Police Captain replied "that's the way it had been done before, in the past[.]" Id. at 147. The Director of Administration also testified that because of the size of the organization he was managing, he was unaware of who was making lead guard selections until the register at issue came to his attention. Id. at 75. The Director of Administration testified that at that time, "I changed it." Id.
The Respondent maintained throughout this proceeding that the register was voided because the correct procedure of having the first line supervisor be the selecting official for lead guard positions was not followed. In support of its position, the Respondent argued that: (1) the Director of Administration believed that because the first line supervisor had to supervise the lead guard, the first line supervisor should be able to decide with whom he wants to work; and (2) the position description of the first line supervisor and an agency regulation require the first line supervisor to make lead guard selections.
The first reason asserted by the Respondent must be contrasted with the fact, noted by the Judge, that the employee selected for the lead guard position would not necessarily work under the first line supervisor. Judge's Decision at 5 n.5. The record reveals that although applicants may know that a vacancy exists on a particular shift, a successful applicant for the position is not necessarily placed on that shift. Transcript at 45-46. This is so because other lead guards have an opportunity to bump into the shift. The selected employee would then be placed on the shift on which a vacancy was created by virtue of the exercise of bumping rights.
The second reason advanced by the Respondent is that the first line supervisor is required by his/her position description and an agency regulation to be the selecting official. Neither the position description nor the regulation was introduced into evidence. In fact, the Respondent's personnel staffing specialist testified that neither of those documents specifically identified the first line supervisor as the selecting official. Id. at 113 and 129. The specialist also stated that it was a violation of merit promotion procedures to allow the second level supervisor to make lead guard selections. Id. at 118 and 126. When asked by the Judge how a long-standing policy of allowing the Chief to be the selecting official could exist where such a practice was claimed to be a violation of merit promotion procedures, the specialist replied "I can't give you an answer on that[.]" Id. at 130.
The record also indicates that the Director of Administration and the Police Captain expressed concern about the choice of Mr. Webber to occupy a lead guard position. The Director of Administration testified that "Mr. Webber was not a good choice" based on his conduct on the Respondent's premises. Id. at 93. All of this conduct appears to have occurred during Mr. Webber's non-duty time with some of the conduct, though not all, involving representational activities. The Police Captain expressed his concern about the selection to the Director of Administration before the register was voided. As indicated by the Judge, the Police Captain also made statements to Mr. Webber's successor as Union president concerning Mr. Webber, and unions generally, which the Judge found to constitute "mild evidence of animus." Judge's Decision at 7. We note, additionally, the Respondent's concession that "Mr. Webber's representational activities may have contributed to a judgment as to his potential to be a [lead guard]." Respondent's Opposition at 3.
Finally, the Respondent claimed, in its post-hearing brief to the Judge, that from the time the register was voided, "all selections within the guard force have been made by the first line supervisors." Respondent's Post-Hearing Brief at 7. (Emphasis in original.) However, the record contains no evidence that there were any lead guard selections following the selection action in this case. The evidence that was introduced indicated only that first line supervisors had made selections for Police Officer positions. Respondent's Exhibits 6 and 7.
As indicated above, the Judge concluded that although he regarded the "course of events here as highly suspicious[,]" the General Counsel failed to establish that Mr. Webber's non-selection was motivated by his Union activities. Judge's Decision at 7. In our view, the record clearly establishes otherwise.
There is no dispute that Mr. Webber was an active Union president and that he was engaged in protected activity when he was selected for the lead guard position. The selection of Mr. Webber was made in accordance with the long-standing practice of having the second level supervisor serve as the selecting official. It was only when the Director of Administration learned of Mr. Webber's selection that the Respondent insisted upon following what it claimed to be the correct procedure of having the first line supervisor make the selection. However, no evidence was presented by the Respondent to demonstrate that this was the correct procedure or that there was a policy in effect of having the first line supervisor make lead guard selections. To the contrary, the Director of Administration testified that he was changing the policy and that the second level supervisor would not be making lead guard selections in the future. Moreover, the record establishes, and the Respondent concedes, that Mr. Webber's protected activity played a part in the decision that Mr. Webber was a poor choice for the position.
Based on the foregoing, we conclude that the General Counsel has established by a preponderance of the evidence that the voiding of the selection register, which resulted in Mr. Webber not being selected for the lead guard position, was motivated solely by his protected activity. Therefore, we find that the Respondent's alleged reasons for its actions were pretextual. Accordingly, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute.
The General Counsel has requested that Mr. Webber be retroactively promoted and made whole for any loss in wages as a result of the Respondent's unlawful conduct. We agree.
Sections 7105(g) and 7118 of the Statute vest the Authority with broad remedial powers to correct violations of the Statute. Such remedial powers have been exercised, in appropriate circumstances, by ordering reinstatement of a wrongfully discharged employee and directing the retroactive promotion of an employee who had been unlawfully discriminated against on the basis of protected union activity. See, respectively, United States Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA 725 (1981) and United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142 (1985).
The Authority has consistently held that in order to direct a retroactive promotion with backpay which meets the requirements of the Back Pay Act, 5 U.S.C. § 5596, there must be a determination that the aggrieved employee was affected by an unjustified or unwarranted personnel action and also that such action directly resulted in the denial of a promotion to the aggrieved employee. See American Federation of Government Employees, Local 17, AFL-CIO and Veterans Administration Central Office, 24 FLRA 424 (1986).
In this case, the unlawful discrimination which formed the basis of the unfair labor practice constituted the unjustified or unwarranted personnel action. We find, moreover, that such action directly resulted in the failure to promote Mr. Webber.
As previously indicated, Mr. Webber was the selectee on the register that was cancelled on October 10, 1986. The Director of Administration testified that he "would have left the selection stand" had it been made by the first line supervisor. Transcript at 94. We have concluded, however, that Mr. Webber's Union activity was the sole reason for cancellation of the selection register. Although the personnel staffing specialist testified at the hearing that a selection register must be processed through various steps before it is finalized, there was no testimony or evidence that these additional steps would have changed the outcome of the selection. In other words, the record is entirely devoid of evidence that Mr. Webber would not have been selected had the register been properly processed.
As we have found the Respondent's reason for cancelling the register to have been unlawfully motivated by Mr. Webber's protected activity, and not for any lawfully motivated reason, the record establishes that Mr. Webber would have been selected. A retroactive promotion with backpay and a restoration of benefits to make Mr. Webber whole is thus compelled by the circumstances of this case and can provide the only meaningful remedy for the unfair labor practice.(*/)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Letterkenny Army Depot, shall:
1. Cease and desist from:
(a) Refusing to promote George C. Webber to the position of Lead Guard because of Mr. Webber's protected union activities.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Retroactively promote George C. Webber to the position of Lead Guard, GS-085-05, reimburse him for the loss of pay suffered by reason of the cancellation of the selection register on October 10, 1986, which resulted in the failure to promote him, due to his protected union activities, and restore to him any rights or privileges he may have lost by such action.
(b) Post at its facility at the Letterkenny Army Depot, 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 Commanding Officer, Letterkenny Army Depot, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin board and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure 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 II, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to promote George C. Webber because he engaged in protected union activities.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL retroactively promote George C. Webber to the position of Lead Guard, GS-085-05, reimburse him for the loss of pay suffered by reason of the cancellation of the selection register on October 10, 1986, which resulted in the failure to promote him, due to his protected union activities, and restore to him any rights or privileges he may have lost by such action.
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, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, NY 10278, and whose telephone number is: (212) 264-4934.
(If blank, the decision does not have footnotes.)
*/ In directing the Respondent to retroactively promote Mr. Webber, we do not address what action, if any, might be necessary with respect to the employee who was selected when the register was reissued.