35:0891(94)CA - - Air Force, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1990 FLRAdec CA - - v35 p891

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[ v35 p891 ]
35:0891(94)CA
The decision of the Authority follows:


35 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

OGDEN AIR LOGISTICS CENTER

HILL AIR FORCE BASE, UTAH

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1592

AFL-CIO

(Charging Party)

7-CA-70456

DECISION AND ORDER

April 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint. The complaint alleged two violations of the Federal Service Labor-Management Relations Statute (the Statute): (1) that the Respondent, acting through Morris Edwards, supervisory Electroplating foreman, violated section 7116(a)(1) and (2) of the Statute by rating the performance of Roberto Cantu-Villarreal, an employee and Union official, at a lower level than the previous year in reprisal for his having engaged in protected activity; and (2) that Respondent, through supervisor Edwards, violated section 7116(a)(1) by making certain statements to Cantu-Villarreal concerning the performance rating at issue. The General Counsel filed exceptions to the Judge's Decision. The Respondent did not file an opposition to the General Counsel's exceptions.

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. The rulings are hereby affirmed.

We find, however, contrary to the Judge, that the Respondent has violated the Statute as alleged in the complaint.

II. Background

The facts, more fully set forth in the Judge's Decision, are summarized below.

The Charging Party (the Union) is the exclusive representative of a nationwide bargaining unit including non-supervisory and non-professional employees of the Respondent's Ogden Air Logistics Center, Hill Air Force Base, Utah.

Mr. Cantu-Villarreal is employed by the Respondent as an Electroplater Worker, WG-07, within the Directorate of Maintenance, Industrial Products and Landing Gear Division, Repair Support Section, Electroplating Shop, at Hill Air Force Base. Since 1984 he has held a variety of positions in the Union.

Mr. Cantu-Villarreal's work as an electroplater worker involves the rebuilding, refurnishing, refinishing and grinding of aircraft parts. Electroplater workers are primarily responsible for plating metallic aircraft parts to meet necessary specifications and tolerances, and must follow established procedures and instructions for doing this work.

For the annual performance appraisal period ending January 1986, Cantu-Villarreal received an overall performance rating of "excellent" from his supervisor, Morris Edwards, Electroplating foreman. Cantu-Villarreal had spent 15 percent of his regular duty time engaged in representational activities on official time during that appraisal period.

Supervisor Edwards' rating of Cantu-Villarreal's performance for the next performance appraisal period--February 1, 1986 through January 1987--was "fully successful." During that appraisal period, because of increased responsibilities with the Union, Cantu-Villarreal spent approximately 45 percent of his regular worktime engaged in representational activities on official time. In early 1986, Edwards had informed Cantu-Villarreal that, as a result of the absences from work resulting from his involvement in the Union, Cantu-Villarreal could not be depended on to be at the shop and, therefore, would not be assigned to certain critical tasks, including nickel plating. Accordingly, Edwards removed Cantu-Villarreal from the established work rotation system, which was designed, in part, to enable employees to maintain their competence by exposing them to a full range of plating tasks. ALJ Decision at 5.

In November 1986, the Deputy Director, Directorate of Maintenance, instructed supervisors and managers throughout the base to follow special procedures to obtain Cantu-Villarreal's release on official time for representational activity. According to the Deputy Director, these special procedures were necessary because Cantu-Villarreal's excessive use of official time for union activity had significantly detracted from his duties as an electroplater. ALJ Decision at 4. Of 132 Union stewards at Hill Air Force Base, Cantu-Villarreal was the only steward subject to such special procedures. ALJ Decision at 4.

On February 19, 1987, when Edwards presented Cantu-Villarreal with the "fully successful" appraisal, Cantu-Villarreal asked Edwards why the appraisal rating was lower than the one he had received the previous year. It is undisputed that Edwards attempted to justify the lower rating by describing the following incident that had taken place during the appraisal year when Edwards had assigned Cantu-Villarreal to the nickel-plating line. Cantu-Villarreal, who had not been assigned to this task by Edwards for two years, requested Edwards to provide some assistance. Although Edwards did not do so, Cantu-Villarreal was able to perform the work satisfactorily by asking a co-worker a few questions concerning the nickel-plating task assigned to him. Edwards stated that he "felt that Cantu-Villarreal was asking for 'help from a man' when he should not have been." ALJ Decision at 6.

Cantu-Villarreal testified that during the February 19, 1987 meeting, Edwards indicated that he gave him a lower rating because Cantu-Villarreal was frequently absent on Union activities and, therefore, could not be depended on or assigned to critical plating operations, including the nickel line. Although Edwards denied making such statements, the Judge credited Cantu-Villarreal. ALJ Decision at 6, 12.

Throughout the 1986-1987 appraisal period, Edwards did not document any work-related deficiency by Cantu-Villarreal. Edwards also failed to meet periodically with Cantu-Villarreal during the appraisal period to discuss Cantu-Villarreal's performance and annotate such discussions, as required by Respondent's policies, Agency regulations and the parties' collective bargaining agreement. ALJ Decision at 10-11. Furthermore, witnesses testified that management did not maintain records on the production of individual electroplater workers, including Cantu-Villarreal. ALJ Decision at 7 n.2 and 8 n.3.

III. The Administrative Law Judge's Decision

The Judge credited Cantu-Villarreal's testimony about Edwards' statements concerning the lower rating of Cantu-Villarreal's performance. However, the Judge found that supervisor Edwards' statements about the lower rating of Cantu-Villarreal did not violate section 7116(a)(1) of the Statute. The Judge found that this case involved an "ongoing conflict between Cantu-Villarreal's right to use [official time] and the agency's right to manage effectively and efficiently" and that Edwards' statements would be understood by a reasonable employee as an attempt to seek accommodation between those rights. ALJ Decision at 12-13. The Judge found that Edwards' statements: (1) were "not so much a criticism of Cantu-Villarreal's protected activities on official time, but showed a concern that certain of his work had not met the high standards of the previous year"; and (2) related to Cantu-Villarreal's unfamiliarity with certain processes and his inability to be rotated through a full range of work without help. ALJ Decision at 13. Consequently, the Judge recommended the dismissal of the allegation in the complaint that the Respondent's statements to Cantu-Villarreal concerning Cantu-Villarreal's lower performance rating violated section 7116(a)(1) of the Statute.

The Judge also found that the Respondent did not violate section 7116(a)(1) and (2) of the Statute by lowering the rating of Cantu-Villarreal's performance for the 1986-1987 appraisal period. He found that there was a legitimate basis for the lower rating of Cantu-Villarreal's performance. He credited supervisor Edwards' testimony that Cantu-Villarreal gave him a "really good job in 1985, but in 1986 the extra effort was not there." ALJ Decision at 14. The Judge concluded that supervisor Edwards was "trying to reach an accommodation rather than penalizing Cantu- Villarreal for engaging in protected activities. . . ." ALJ Decision at 14-15. Consequently, the Judge recommended the dismissal of the entire complaint.

IV. Position of the General Counsel

The General Counsel contends that supervisor Edwards' statements about Cantu-Villarreal's performance appraisal violated section 7116(a)(1) because they would lead a reasonable employee to "draw the conclusion that he had suffered, and would continue to suffer, discriminatory treatment due to his pursuit of protected activities." General Counsel's Brief at 6. The General Counsel argues that the Judge erred in finding that Edwards' statements would be understood by a reasonable employee to be an attempt to reach an accommodation concerning Cantu-Villarreal's use of official time. General Counsel's Brief at 6-10. With respect to the alleged violation of section 7116(a)(1) and (2), the General Counsel maintains that Cantu-Villarreal's rating was lowered because of his protected activities. The General Counsel argues that this conclusion is supported by (1) statements made by supervisor Edwards to employee Cantu-Villarreal, (2) the timing of the performance appraisal, and (3) supervisor Edwards' union animus. The General Counsel further contends that the reasons given by Edwards to justify the lowering of Cantu-Villarreal's rating were pretextual.

V. Analysis and Conclusions

A. Edwards' Statements to Cantu-Villarreal

We adopt the Judge's credibility resolutions as to the statements that Edwards made to Cantu-Villarreal. However, contrary to the Judge, we find that the Respondent violated section 7116(a)(1) of the Statute as a result of the statements that Edwards made to Cantu-Villarreal.

The standard for determining whether management's statement or conduct violates section 7116(a)(1) is an objective one. The question is whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. Marine Corps Logistics Base, Barstow, California, 33 FLRA 626, 637 (1988) (Marine Corps Logistics Base), petition for review dismissed sub nom. Boyce v. FLRA, No. 88-7524 (9th Cir. order Mar. 23, 1989); Bureau of Engraving and Printing, 28 FLRA 796 (1987). In order to find a violation of section 7116(a)(1), it is not necessary to find other unfair labor practices or to demonstrate union animus. United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 163 (1985); Department of the Air Force, 35th Combat Support Group (TAC), George Air Force Base, California, 4 FLRA 22, 29-30 (1980). While the circumstances surrounding the making of the statement are taken into consideration, the standard is not based on the subjective perceptions of the employee or on the intent of the employer. Department of the Army Headquarters, Washington, D.C., and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110, 1124 (1987).

In the statements at issue, supervisor Edwards told employee Cantu-Villarreal that Cantu-Villarreal's annual performance appraisal had been lowered because the employee was "gone a lot" on union business, and that Edwards, therefore, could not depend on him, or assign him to critical plating operations.

Under section 7102 of the Statute, an employee has the right to form, join, or assist any labor organization freely and without fear of penalty or reprisal. An agency's interference with this right violates section 7116(a)(1). See, for example, Nuclear Regulatory Commission, 28 FLRA 820, 831 (1987) (management's statement to the employee that the front office does not approve of the employee's union activities restrained the employee in the exercise of her rights under section 7102 and, therefore, violated section 7116(a)(1)); Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956, 968-69 (1985) (agency's statements that it did not recommend the employee for the job due to the employee's union position interfered with the employee's section 7102 rights and violated section 7116(a)(1) because the logical conclusion to be drawn was that assignment to a desirable detail would be denied solely because the employee was a union representative).

The Judge found that Edwards' statements were an attempt to seek accommodation between management's right to manage effectively and the employee's right to engage in protected activity, and that, therefore, the statements did not interfere with, restrain, or coerce Edwards in the exercise of his rights under the Statute. In support of this finding the Judge relied on the Authority's decision in Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA 761, 764 (1985) (Scott Air Force Base), review denied mem. sub nom. National Association of Government Employees, Local R7-23 v. FLRA, No. 86-1011 (D.C. Cir. Dec. 10, 1986).

In Scott Air Force Base as well as in Veterans Administration Medical Center, Leavenworth, Kansas, 31 FLRA 1161, 1170-71 (1988) (VAMC), the Authority found that the employees could not reasonably have drawn a coercive inference from the supervisors' statements because the statements represented such a lawful accommodation. In both cases the supervisors alerted the employees to a conflict between the agencies' ability to manage efficiently and the employees' right to engage in union activity, and discussed with the employees how that conflict could be accommodated.

In VAMC, the Authority, adopting the decision of the Administrative Law Judge, found that a supervisor's statement that the employee was rated low on his mid-term evaluation because of his use of official time for union activities did not violate section 7116(a)(1) of the Statute. In that case, the supervisor had told the employee that he was deficient in certain duties because he took too much official time when those duties should have been performed. The mid-term evaluation was not used for promotion or disciplinary purposes. In a subsequent conversation, the supervisor explained that the employee could not go on official time until after certain work was completed and, when that work was completed, permitted the employee to spend the rest of the day on union business. The Authority found that, under the circumstances, a reasonable employee would have understood that the supervisor was trying to reach an accommodation between the parties' respective rights; that is, he "was trying to encourage [the employee] to schedule his [u]nion activities so that he could also perform the [work]." VAMC, 31 FLRA at 1171.

Similarly, in Scott Air Force Base, the Authority held that the agency had not violated section 7116(a)(1) of the Statute when its supervisors stated to an employee, who was also a union president, that the employee was "spending too much time on union work and too little on the [agency's] work and that disciplinary action might be taken against him if he did not put more work into the . . . project." Scott Air Force Base, 20 FLRA at 764. The Authority noted the supervisors' prior efforts to reach an accommodation with the employee, the responses of the employee to management's efforts, the time-sensitive nature of the work to be done, and the lack of evidence of union animus. It was further noted that there was no evidence of a denial of any future requests for official time and that the employee had not been disciplined. In those circumstances, the Authority found that the supervisors were lawfully seeking an accommodation between the employee's and the agency's conflicting rights. Id. at 764-66.

The General Counsel argues that a reasonable employee would not understand Edwards' statements as an attempt to accommodate use of official time but would "draw the conclusion that he had suffered, and would continue to suffer, discriminatory treatment due to his pursuit of protected activities." General Counsel's Brief at 6-10. We agree with the General Counsel.

We find that Edwards' statements as to why he gave Cantu-Villarreal a lower annual performance rating did not constitute an attempt at accommodation. At the time Edwards made his statements, he had already implemented his decision as to Cantu-Villarreal's performance appraisal rating. Unlike in VAMC and Scott Air Force Base, Edwards' statements were made after the implementation of the decision as to the performance appraisal. Before issuance of the performance appraisal, Edwards and management expressed to Cantu-Villarreal their concerns about the conflict between his use of official time and his work performance but nothing in the record indicates that during that time Edwards or management suggested to Cantu-Villarreal how to avoid a lower performance rating or other ways to "accommodate" those concerns.

Although Edwards attempted to justify the lower rating during the February 19, 1987 meeting by describing an incident that took place during the appraisal year, we do not view these comments as providing Cantu-Villarreal with sufficient guidance as to how he might avoid a similar result in the future. Thus, they did not attempt to reach an accommodation between the employee's protected right and Respondent's right to manage effectively. Rather, Edwards' statements as to why he gave Cantu-Villarreal a lower performance appraisal rating drew a direct connection between protected activity and Cantu-Villarreal's chance to earn a higher performance appraisal. Under these circumstances, we conclude that a unit employee reasonably could have interpreted the statement to mean that Edwards would penalize a Union official who spent a significant amount of time engaged in protected activities by lowering his performance appraisal rating and that, therefore, an employee would never be given a performance rating of "excellent" so long as he or she was a Union official who was engaged in protected activities to a similar extent. See Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, 34 FLRA 956 (1990) (supervisor's statement was not an attempt at accommodation and violated section 7116(a)(1) because it could be interpreted to mean that the supervisor would not consider having a Union official for shift work for fear that contractual provisions would be involved, and that, therefore, an employee could never successfully compete for a job with rotating shifts so long as he was a Union official).

B. Cantu-Villarreal's Performance Appraisal

The General Counsel contends the Respondent violated section 7116(a)(1) and (2) of the Statute "through Edwards preparing an annual performance appraisal for Cantu-Villarreal which was based on consideration of the employee's protected activities." General Counsel's Brief at 16.

In Letterkenny Army Depot, 35 FLRA 113 (1990), the Authority reaffirmed that the General Counsel bears the burden to establish 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), 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 conditions of employment. Id. at 118-123. 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. Id. The General Counsel may also seek to establish, as part of its prima facie case, that the 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 the reasons are pretextual. Id.

The Judge found that the Respondent established a legitimate basis for Cantu-Villarreal's lower appraisal. ALJ Decision at 14. In our view the record establishes otherwise. We conclude, contrary to the Judge, that protected activity alone was the motivating factor because the asserted performance-related reason has not been established.

For the appraisal period ending January 1986, Edwards rated Cantu-Villarreal's performance as "excellent." Cantu-Villarreal had spent 15 percent of his regular duty time engaged in representational activities on official time during that appraisal period. During the next performance appraisal period--February 1, 1986 to January 1987,-- Cantu-Villarreal, because of increased responsibilities with the Union, spent approximately 45 percent of his regular worktime engaged in representational activities on official time. For that appraisal period, Edwards' rating of Cantu-Villarreal's performance was "fully successful."

On several occasions during the 1986-1987 appraisal period, Edwards expressed to Cantu-Villarreal his concern about his use of official time. For example, in early 1986, Edwards informed Cantu-Villarreal that as a result of his absences from work resulting from his involvement in the Union, Cantu-Villarreal could not be depended on and, therefore, would not be assigned to certain duties. ALJ Decision at 5. Further, as noted above, when Edwards presented Cantu-Villarreal with the "fully successful" appraisal on February 19, 1987, Edwards' statements as to why he gave Cantu-Villarreal a lower performance appraisal rating drew a direct connection between protected activity and Cantu-Villarreal's chances of obtaining a higher performance appraisal. Accordingly, we conclude that the General Counsel has made a prima facie showing of discrimination for protected activities.

Further, in disagreement with the Judge, we find that a legitimate basis for the lower appraisal is not established in the record, and that, therefore, the Respondent has not met its burden of demonstrating that the appraisal was based on lawful considerations. In view of the timing of the appraisal, after an increase in Cantu-Villarreal's use of official time, and Edwards' remarks concerning the reason for the lower appraisal and other remarks made during the appraisal period concerning Cantu-Villarreal's use of official time, we are persuaded that the lower appraisal was a result of Cantu-Villarreal's use of official time. In finding that there was a legitimate basis for the lower appraisal, the Judge cites only Edwards' testimony that Cantu-Villarreal gave him a really good job in 1985, but in 1986 the extra effort was not there. ALJ Decision at 14. The record, however, reveals no corroborating testimony from other witnesses or documentary evidence to support Edwards' justification for the lower appraisal. In the absence of such evidence, we find that the Respondent has failed to rebut the clear showing that the perceived differences between Cantu-Villarreal's performance in the 1986-87 appraisal year and the preceeding period all stemmed from his absences for Union activity and not from a deterioration of his work when he was on the job.

Based on the foregoing, we conclude that the General Counsel has established by a preponderance of the evidence that Cantu-Villarreal's lower 1986-1987 appraisal was motivated solely by his protected activity. Therefore, we find that the Respondent's proffered reason for its actions was pretextual. Accordingly, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute. Compare, for example, 22nd Combat Support Group (SAC), March Air Force Base, California, 27 FLRA 279 (1987) (Respondent's lower appraisal for an employee was motivated by employee's request for assistance from the Union; violation of section 7116(a)(1) and (2) because reasons given for the appraisal were pretextual).

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah shall:

1. Cease and desist from:

(a) Making statements to employees which interfere with, coerce, or discourage any employee from exercising the rights accorded by the Statute to act for a labor organization in the capacity of a representative freely and without fear of penalty or reprisal.

(b) Discriminating against Roberto Cantu-Villarreal by unlawfully taking into consideration in appraising his performance his activities on behalf of the American Federation of Government Employees, Local 1592, AFL-CIO, the exclusive representative of its employees.

(c) In any like or related manner, interfering with, restraining, or coercing 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) Rescind the 1986-1987 appraisal of Roberto Cantu-Villarreal and reappraise him without unlawfully taking into consideration his activities on behalf of the American Federation of Government Employees, Local 1592, AFL-CIO, the exclusive representative of its employees; and provide Roberto Cantu-Villarreal with any benefits to which he would be entitled as a result of the reappraisal.

(b) Post at its facilities at Hill Air Force Base, copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Commanding Officer of Hill Air Force Base, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, 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 make statements to employees which interfere with, coerce, or discourage any employee from exercising the rights accorded by the Statute to act for a labor organization in the capacity of a representative freely and without fear of penalty or reprisal.

WE WILL NOT discriminate against Roberto Cantu-Villarreal by unlawfully taking into consideration in appraising his performance his activities on behalf of the American Federation of Government Employees, Local 1592, AFL-CIO, the exclusive representative of our employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the 1986-1987 appraisal of Roberto Cantu-Villarreal and reappraise him for that period without unlawfully taking into consideration his activities on behalf of the American Federation of Government Employees, Local 1592, AFL-CIO, the exclusive representative of our employees; and provide Roberto Cantu-Villarreal with any benefits to which he would be entitled as a result of the reappraisal.

____________________________
(Agency or 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, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Co. 80202, and whose telephone number is: (303) 844-5224.




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