36:0489(60)CA - - Customs Service, Region IV, Miami District, Miami, FL and NTEU - - 1990 FLRAdec CA - - v36 p489

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[ v36 p489 ]
36:0489(60)CA
The decision of the Authority follows:


36 FLRA No. 60

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES CUSTOMS SERVICE

REGION IV, MIAMI DISTRICT

MIAMI, FLORIDA

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/Union)

4-CA-70849

DECISION AND ORDER

July 31, 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 filed by the General Counsel and the Union. The Respondent did not file an opposition to the exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by transferring an employee from one assignment to another because of his participation in activities protected by the Statute. 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 procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings.

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

II. Background

In June 1986, a new intelligence program, Operation Sea Eagle, was established by the Respondent to improve the inspection of private aircraft arriving at "Non-Customs Designated Airports." Judge's Decision at 2. Operation Sea Eagle was a joint operation between the Miami District and the Office of Enforcement.

In August 1986, Pedro Rodriguez, a Customs Inspector, was selected by the Respondent for assignment to Operation Sea Eagle. The Respondent selected Rodriguez for the assignment because of his previous military intelligence and private aircraft processing experience and his ability to speak Spanish. Rodriguez was the "only Customs Inspector assigned to Operation Sea Eagle in the Miami area[.]" Id. at 3. In December 1986, Rodriguez became president of the Union.

By letter dated May 14, 1987, the Respondent's Assistant District Director notified the Union that the Respondent planned "to implement changes in the rotation and staffing [in the Miami District] commencing August 2, 1987." Respondent's Exhibit 1. The existing rotation schedule provided for the custom inspectors to rotate assignments in the seaport, airport cargo and the baggage area of the Miami International Airport. Rodriguez "became deeply involved in negotiations with the Respondent concerning the rotation system utilized in the Miami District." Judge's Decision at 3.

After the parties reached impasse in their negotiations, the Respondent notified the Union, by letter dated July 17, 1987, that the new rotational plan would be implemented on August 2, 1987, as scheduled. In response to the Respondent's notification of intent to implement, the Union "decided to conduct informational picketing at the airport." Id. at 4. By letter dated July 28, 1987, to the Dade County Aviation Department, the Union requested a permit to conduct informational picketing at the Miami International Airport on July 31, 1987. By letter dated July 28, 1987, the Dade County Aviation Department granted permission to the Union to conduct the requested picketing. A copy of the letter was sent to the Respondent.

On July 30, 1987, Esther Mandelay, Respondent's Assistant District Director for the Miami Area, orally "notified Rodriguez that he was reassigned from Sea Eagle to Seaport effective August 2, 1987, the date the Respondent had selected to rotate the other Customs Inspectors in the Miami District." Id. Paul Voight, Supervisor In-Charge of Operation Sea Eagle, "learned of Mr. Rodriguez' transfer the same way Rodriguez did, orally from Ms. Mandelay." Id. Rodriguez's position on Operation Sea Eagle was not filled until approximately 1 month after his transfer.

At the hearing, the parties stipulated that:

[Rodriguez] was a good worker and management did not remove him for performance-based reasons; assignment to Sea Eagle is not subject to a specific period of time; and Sea Eagle is considered to be a career-enhancing assignment.

Transcript of Proceedings at 17-18.

III.Administrative Law Judge's Decision

The Judge found the testimony of the three principal witnesses, Voight, Rodriguez and Mandelay, to be credible. The Judge further found that their respective testimony did not present "any substantial contradictions." Judge's Decision at 6.

In the Judge's view, "[t]he only significant conflict in the three employees['] testimony concern[ed] the timing of the notice to Mr. Rodriguez and Mr. Voight about the fact that Mr. Rodriguez was to be included in the upcoming rotation." Id. The Judge noted that "Mr. Voight and Mr. Rodriguez testified that they were orally notified of [the rotation] a few days prior to the rotation, while Ms. Mandelay does not recall ever personally giving them any oral notification." Id. The Judge did not resolve this conflict specifically.(1) Instead, the Judge concluded that:

[n]either Mr. Voight nor Mr. Rodriguez offered any probative testimony to contradict Ms. Mandelay's testimony that the decision to include Mr. Rodriguez in the scheduled August rotation was reached several weeks prior to the date Respondent actually received notice that the Union was about to conduct informational picketing at the airport. Although Mr. Rodriguez denied seeing the final list of employees to be included in the rotation which, according to Ms. Mandelay, was posted shortly after July 6, 1987, he did acknowledge that he had not visited the airport premises where any such list would have been posted.

Id.

Based on the above analysis, the Judge found "no reason to discredit Ms. Mandelay's denial that the inclusion of Mr. Rodriguez in the August rotation was in anyway related to his participation in activities protected by the Statute." Id. at 6-7. 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 maintains that the evidence does not support the Judge's finding that the Respondent's reassignment of Rodriguez from Operation Sea Eagle was not related to his participation in activities protected by the Statute. The General Counsel argues that it established a prima facie case of discrimination and cites, among other things, Rodriguez' protected activity, the adversarial relationship between the parties and the timing of Rodriguez's removal from Operation Sea Eagle.

The General Counsel also contends that the Judge "misapplied well-settled standards of weighing the evidence and allocating the burdens of proof." General Counsel's Exceptions at 3. The General Counsel argues that in cases where an individual is accused of acting based on an unlawful motive, the self-serving declaration of that individual is not conclusive evidence of motive. Rather, according to the General Counsel, motive must be inferred from objective facts and circumstances. The General Counsel contends that the Judge should have given "Mandelay's self-serving testimony" less weight than the "undisputed, objective record evidence[.]" Id. at 5 (emphasis in original).

The General Counsel maintains that the Respondent's asserted reason for reassigning Rodriguez was pretextual. The General Counsel notes the parties' stipulation that "assignment to Sea Eagle is not subject to a specific period of time." Id. at 2, n.1. The General Counsel claims that the Judge "chose to ignore this [stipulation], which directly contradicts the ultimate finding in the case that Rodriguez was reassigned as a part of a regularly scheduled rotation." Id. The General Counsel further notes that the Respondent did not produce a copy of the rotation schedule which it alleged was posted shortly after July 6, 1987. The General Counsel asserts that the Respondent would have produced a copy of the document at the hearing if it supported Respondent's asserted reason for reassigning Rodriguez. Therefore, the General Counsel argues that the Judge "should have made the inference that the document, if produced, would not have indicated that Rodriguez' job was part of a normal rotation schedule." Id. at 7.

The General Counsel asserts that the Authority should reverse the Judge and find that the Respondent reassigned Rodriguez from Operation Sea Eagle because of his protected union activities, in violation of section 7116(a)(1) and (2) of the Statute. As a remedy, the General Counsel requests that the Authority direct the Respondent to reinstate Mr. Rodriguez, if he so desires, to Operation Sea Eagle.

B.The Union's Exceptions

The Union contends first that the Judge erred by relying "exclusively" on the uncorroborated testimony of Mandelay and failing to consider the parties' stipulation which "impeaches" Mandelay's testimony. Union's Exceptions at 6. Second, the Union argues that evidence presented at the hearing demonstrates that the reason asserted by the Respondent for removing Rodriguez from Operation Sea Eagle was pretextual.

The Union contends that if Mandelay had decided to include Operation Sea Eagle in the scheduled rotation as early as July 6, 1987, she would have informed Voight about the decision. The Union also contends that as Voight worked at the airport, he would have seen the new rotation schedule if it had been posted. The Union further argues that if the rotation schedule had been posted, Rodriguez would have been notified by another co-worker that he was scheduled to rotate because he was the Union president and rotation was a controversial issue. Finally, the Union maintains that the Respondent's failure to rotate someone into Rodriguez' position for over a month after his reassignment "demonstrates that the decision to remove Rodriguez was made hastily at short notice without any thought given for his replacement." Id. at 11.

V.Analysis and Conclusions

In Letterkenny Army Depot, 35 FLRA 113 (1990), we addressed the analytical framework to be applied in cases alleging violations of 7116(a)(2) of the Statute. We reaffirmed that the General Counsel bears the burden of establishing by a preponderance of the evidence that an unfair labor practice has been committed. We stated that in all cases of alleged discrimination, 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. Id. at 118. We also stated that the General Counsel may also seek to establish, as a part of its prima facie case, that a respondent's asserted reasons for taking the allegedly discriminatory action are pretextual, or after presentation of the respondent's evidence of lawful reasons, the General Counsel may seek to establish that those reasons are pretextual. Id. at 122-23.

We noted that when 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 actions; and (2) the same action would have been taken in the absence of protected activity. Id. at 123. We pointed out that 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. Id. at 119.

Applying the analytical framework discussed above to the facts and circumstances of this case, we find the following:

A. The General Counsel Established a Prima Facie Case That Rodriguez Was Removed From Operation Sea Eagle Because of His Union Activities

Credited and uncontradicted testimony before the Judge establishes that the Respondent and the Union, who had an "extremely adversarial relationship[,]" had negotiated and reached impasse over the Respondent's proposed rotation schedule. Judge's Decision at 4. There is no dispute, in this regard, that Rodriguez was engaged in activities protected under the Statute and that the Respondent was aware of those activities. Credited and uncontradicted testimony also establishes that during these negotiations, Operation Sea Eagle was never specifically mentioned as being in the rotation schedule.(2) In fact, the parties stipulated that "assignment to [Operation] Sea Eagle is not subject to a specific period of time." Transcript at 18.

Against this background, we find that the timing of the Respondent's notification to Rodriguez that he was being rotated out of Operation Sea Eagle establishes a prima facie case that the action was taken as a result of Rodriguez' protected activities. Specifically, on July 17, 1987, Mandelay informed Rodriguez that the Respondent planned to implement the new rotation schedule on August 2, 1987. Consistent with Mandelay's own testimony, no mention was made that the new rotation schedule included Operation Sea Eagle. On July 28, the Respondent received notification that the Union planned to conduct informational picketing at the airport on August 2, 1987. On July 30--only 2 days after receiving notification of the Union's intent to picket--the Respondent notified Rodriguez that he was reassigned from Operation Sea Eagle to Sea Port, effective August 2, 1987. Rodriguez' supervisor was informed in the same way.

Viewing these facts objectively, and applying the factors set forth in Letterkenny Army Depot, we conclude that the General Counsel made a prima facie showing that Rodriguez was engaged in protected activity and such activity was a motivating factor in the Respondent's reassignment of Rodriguez. Rodriguez, as Union president, was "deeply involved" in the parties' negotiations over the Respondent's rotation plan. Judge's Decision at 3. Despite this involvement, and despite the fact that the Respondent had previously provided the Union with 16 days' notice of its intent to implement the rotation plan, Rodriguez was not informed that Operation Sea Eagle in general, or Rodriguez in particular, was included in the rotation plan until July 30. The date of notification was only 2 days after the Respondent became aware of the Union's intent to engage in informational picketing and only 2 days before implementation of the rotation plan.

"[A] prima facie case consists only of 'sufficient evidence . . . to get plaintiff past . . . a motion to dismiss[.]'" Letterkenny Army Depot, 35 FLRA at 119, quoting Black's Law Dictionary 1071 (5th ed. 1979). In our view, the evidence offered by the General Counsel, particularly the timing of the notice to Rodriguez as it relates to the timing of the Union's efforts to engage in informational picketing, is sufficient to establish that Rodriguez was transferred from Operation Sea Eagle because of his protected activities. We conclude, therefore, that the General Counsel established a prima facie case that the Respondent violated section 7116(a)(2) of the Statute.

B. The Respondent Failed to Establish That It Would Have Removed Rodriguez From Operation Sea Eagle Even in the Absence of His Protected Activities

The Respondent contends that it rotated Rodriguez from Operation Sea Eagle as a part of its previously decided rotation schedule. The evidence presented by the Respondent in support of its contention consists of Mandelay's testimony that she: (1) bore no animosity towards Rodriguez because of his union activities; (2) was under the impression that Operation Sea Eagle was included in the rotation schedule; and (3) made the decision to rotate Rodriguez sometime around July 6, 1987, several weeks prior to receiving notice that the Union intended to engage in informational picketing.

To support Mandelay's testimony, the Respondent offered as evidence a document (Respondent's Exhibit No. 2), which, according to Mandelay, was management's final determination concerning where the employees in the Miami region would be rotated on August 2, 1987. According to Mandelay, the document showed where the employee was administratively assigned and where the employee would be rotated. Mandelay testified that another document, a rotation schedule, was posted at the airport shortly after July 6, 1987.

In our view, the Respondent did not demonstrate that Rodriguez's transfer from Operation Sea Eagle was based on a rotation plan developed before the Respondent became aware of the Union's intent to engage in informational picketing. We note first the parties' stipulation that assignment to Operation Sea Eagle "is not subject to a specific period of time." Transcript at 18. The rotation plan implemented by the Respondent on August 2 related to regular rotations of employees in various positions after specific periods of time. In fact, the parties' dispute over the rotation plan was centered on the specific time periods of the rotations. Judge's Decision at 3. We conclude, therefore, that Mandelay's assertion that Rodriguez was transferred because Operation Sea Eagle was included in the Respondent's rotation plan is in direct conflict with the parties' stipulation.

Second, the Respondent did not present a copy of the rotation schedule which Mandelay contended was posted shortly after July 6, 1987. In fact, there is no evidence that Mandelay, or any other person, ever saw the document she claims was posted. When asked whether she had seen the posted document, Mandelay replied only that she "probably saw it eventually in the file. Probably." Transcript at 159. There is, therefore, no objective evidence that a rotation plan including Rodriguez was, in fact, posted.

Third, the vacancy created on Operation Sea Eagle by Rodriguez' transfer was not filled for approximately 1 month after the transfer. If, as Respondent asserts, Rodriguez was transferred out of Operation Sea Eagle pursuant to the regular rotation plan, it is reasonable to conclude that the Respondent also would have transferred an employee to Operation Sea Eagle to replace Rodriguez. The Respondent offers no explanation for the delay in filling Rodriguez' vacancy. Failure to fill the vacancy also supports an inference that the Respondent did not know as early as July 6 that Rodriguez would be rotated because, with one month's notice, the Respondent would have filled such a critical position. As such, viewed in its reasonable light, we find that the delay buttresses a conclusion that Rodriguez was not transferred pursuant to the Respondent's rotation plan.

Finally, we are unable to conclude that Respondent's Exhibit No. 2 supports the Respondent's position. Respondent's Exhibit No. 2, a 2-page document, is entitled "INSPECTORS[.]" Nothing on the document identifies for whom or by whom the document was prepared. The date "7-6-87" is handwritten at the top of the document. The document contains six columns, with column headings as follows: (1) GRADE, (2) NAME, (3) DATE ASSIGNED TO PRESENT POSITION, (4) PREVIOUS LOCATION, (5) DATE ASSIGNED TO PREVIOUS LOCATION, and (6) VACANCIES. The "VACANCIES" column is blank.

Names of inspectors, including Rodriguez, are listed in alphabetical order. Rodriguez's name is highlighted. The document indicates that Rodriguez was assigned to his "present" position in February 1987, that Rodriguez' previous location was "Cargo," and that Rodriguez was assigned to Cargo in August 1986. Handwritten initials appear next to the names on the first page of the document.

The word "rotation" does not appear on the document and there is nothing else on the document which would support a conclusion that it sets forth a rotation plan.(3) There is, in short, no objective basis for concluding that the document constitutes, or was intended to constitute, a rotation plan. We conclude, therefore, that Respondent's Exhibit No. 2 does not constitute evidence that the Respondent determined to rotate Rodriguez out of Operation Sea Eagle on or about July 6, 1987, pursuant to its general rotation plan.

In the absence of any corroborating evidence of a decision by the Respondent to include Rodriguez in the rotation pursuant to the Respondent's general rotation plan, the Respondent's only asserted reason for the transfer, we find that the Respondent did not rebut the General Counsel's prima facie showing that Rodriguez was removed from Operation Sea Eagle because of his protected union activities. Consequently, we conclude that the record establishes that the reason asserted by the Respondent as justification for its action was pretextual.

Based on the foregoing, we conclude that the General Counsel has established by a preponderance of the evidence that the Respondent removed Rodriguez from Operation Sea Eagle solely because of his protected union activities and that the reason asserted by the Respondent as justification for its unlawful conduct was pretextual. Accordingly, the Respondent violated section 7116(a)(1) and (2) of the Statute.

VI.Remedy

As a remedy, the General Counsel requests that the Respondent be ordered to reinstate Rodriguez, if he so desires, to Operation Sea Eagle. We agree that the remedy requested by the General Counsel is appropriate. Here, the record establishes that the Respondent transferred Rodriguez from Operation Sea Eagle solely because of his protected activities. To effectuate the policies and purposes of the Statute, it is both reasonable and necessary that Rodriguez be given the option of returning to Operation Sea Eagle. Any future changes in Rodriguez's assignment must, of course, be made consistent with the Respondent's obligations under the Statute.

VII.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 United States Customs Service, Region IV, Miami District, Miami, Florida shall:

1.Cease and desist from:

(a) Discriminating against Pedro Rodriguez by unlawfully transferring him from Operation Sea Eagle because of his 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) Reinstate Mr. Rodriguez to Operation Sea Eagle, if he so desires.

(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relation Authority. Upon receipt of such forms, they shall be signed by the Miami District Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards 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 transfer Pedro Rodriguez from Operation Sea Eagle because of his 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 reinstate Pedro Rodriguez to Operation Sea Eagle, if he so desires.

_________________________
(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 any of its provisions, they may communicate directly with the Regional Director, Region IV, whose address is: 1371 Peachtree Street, N.E., Suite 736, Atlanta, Georgia 30367 and whose telephone number is: (404) 347-2324.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. We note, however, that in his findings of fact, the Judge stated that on July 30, 1987, Mandelay notified Rodriguez of his reassignment and that Voight "learned of Mr. Rodriguez' transfer the same way that Mr. Rodriguez did, orally from Ms. Mandelay." Judge's Decision at 4. The Judge notes that his finding was based on "the respective testimony of Rodriguez and Voight." Id. at n.3. It appears, therefore, that as to this point, the Judge credited the testimony of Rodriguez and Voight.

2. We acknowledge Mandelay's testimony that "it was her understanding throughout the negotiations . . . that all employees in the Miami area were to be included[]" in the rotation. Judge's Decision at 4. It is clear, however, that, as found by the Judge, Mandelay did not contend that "Op