42:0022(2)CA - - HHS, SSA, Baltimore, MD and Detroit Teleservice Center, Detroit, NI and AFGE Local 3239 of Council 220 - - 1991 FLRAdec CA - - v42 p22

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[ v42 p22 ]
42:0022(2)CA
The decision of the Authority follows:


42 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

DETROIT TELESERVICE CENTER

DETROIT, MICHIGAN

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3239 OF COUNCIL 220

(Charging Party)

5-CA-90613

DECISION

September 9, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) because: (1) there was justification for the Respondent's action in terminating a probationary employee apart from the employee's protected activity; and (2) the Respondent would have terminated the probationary employee in the absence of her protected activity. The Judge recommended that the complaint be dismissed. The General Counsel filed exceptions to the Judge's decision. The Respondent filed cross-exceptions to the Judge's decision and 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. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order. See U.S. Department of Veterans Affairs, Medical Center, Long Beach, California, 39 FLRA 1347 (1991).

For the reasons noted in the Judge's decision, we reject the Respondent's argument, made in its cross-exceptions, that the Authority does not have jurisdiction over the matter at issue in this case.

The General Counsel excepts to the Judge's finding that the probationary employee's letter to the Commissioner of the Social Security Administration did not involve protected activity. The General Counsel acknowledges that "[i]n itself, the letter may not be protected by the Statute." General Counsel's Exceptions at 4. However, relying on General Counsel's Exhibit No. 5, the General Counsel argues that the Judge failed to consider that the employee "expressed an intention to bring the Union in on this complaint, by including the Union, on the face of the letter, in the list of those to be copied." General Counsel's Exceptions at 4 (emphasis in original) (citation to General Counsel's Exhibit No. 5 at 3). The General Counsel maintains that the employee "invoked the Union's assistance in attempting to spotlight what she saw as local management's shortcomings." General Counsel's Exceptions at 5.

We find that the General Counsel has failed to establish that the letter to the Commissioner constituted protected activity under the Statute. Section 7102 of the Statute provides in pertinent part that each employee shall have the protected right "to form, join, or assist any labor organization . . . freely and without fear of penalty or reprisal" and that such right includes the right:

to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities[.]

Contrary to the General Counsel's assertion, the employee did not include the Union "on the face of the letter, in the list of those to be copied." Id. (citation to General Counsel's Exhibit No. 5 at 3). The General Counsel refers to its Exhibit No. 5, which indicates through the use of the symbol "cc" that the Union was to receive a copy of the letter. However, the General Counsel's Exhibit No. 5 is not a copy of the letter sent by the employee to the Commissioner but is a handwritten draft of the letter. The letter sent to the Commissioner contains no reference to the Union and does not indicate that the Union was to receive a copy of the letter. See General Counsel's Exhibit 6 at 3. Further, the General Counsel acknowledges that the employee "could not swear that she had in fact given a copy [of the letter] to the Union." General Counsel's Exceptions at 4 (citation to transcript omitted).

Nothing in the record indicates that the employee was acting on behalf of the Union or acting in any other manner to invoke the assistance of the Union in this matter. The fact that a draft copy of the letter to the Commissioner showed that a copy was to be sent to the Union does not, in and of itself, indicate that the employee invoked or intended to invoke the Union's assistance in this matter. As the General Counsel has offered no evidence of the employee's intent to act for the Union or to seek the Union's assistance, we find that the General Counsel has failed to demonstrate that the Judge erred in finding that the letter to the Commissioner "had no connection to [the employee's] Union activity or asserting rights under the parties' collective bargaining agreement." Judge's Decision at 34. Moreover, even assuming that the General Counsel had demonstrated the employee's intention to seek the Union's assistance, the letter to the Commissioner does not show a "cc" to the Union and, therefore, it cannot be shown that the Agency had knowledge of the employee's intention. Accordingly, we adopt the Judge's finding that, in the circumstances of this case, the employee's letter to the Commissioner did not involve protected activity.

The General Counsel also excepts to what it deems is the Judge's failure to find that the probationary employee's request for an Individual Development Plan (IDP) constituted protected activity. According to the General Counsel, the Judge "failed to [find] that [the employee's] assertion of the collectively bargained right to an IDP was . . . protected conduct." Id. at 6. As this conduct was "another factor which motivated management to terminate" the employee, the General Counsel asserts that "this incident should be included as an established instance of management conduct which is proscribed by the Statute." Id.

In contending that the employee's request for an IDP constituted protected activity, the General Counsel argued before the Judge that the employee filed a grievance "concern[ing] [the employee's] request for an IDP, a contractual right" and that "[t]he right to file and process grievances is protected activity under the Statute." General Counsel's Post-Hearing Brief at 16. As to whether the employee's protected activity was a motivating factor in management's decision to terminate her, the General Counsel contended that management "clearly was irritated by the [employee's] request for an IDP[.]" Id.

The Judge found that the employee had filed four grievances, including a grievance "concern[ing] the failure [of management] to provide [the employee] with an IDP." Judge's Decision at 9. Consistent with the assertions in the General Counsel's post-hearing brief, the Judge further found that the employee's "four grievances constituted activity protected by the Statute" and that such activity "comprised motivating factors in [the] Respondent's decision to terminate" the employee. Id. at 35. However, the Judge concluded that the Respondent had shown that management would have terminated the employee even in the absence of the employee's protected activity and that, therefore, the Respondent did not violate the Statute.

As we noted above, the Judge found that the employee's grievance over her request for an IDP involved protected activity and was a motivating factor in the Respondent's decision to terminate the employee. The General Counsel asserts in its exception that the Judge should have found that the employee's request for an IDP constituted protected activity and was a motivating factor in the Respondent's decision to terminate the employee. In our view, the Judge's finding included a finding that the employee's request for an IDP involved protected activity and was a motivating factor in the Respondent's decision to terminate her. Therefore, there is no basis to the General Counsel's exception inasmuch as the General Counsel argues that the Judge should have made a finding which he did in fact make.

Finally, the General Counsel objects to the Judge's failure to "note other testimony" of certain witnesses at the hearing on whether management was aware of some of the employee's activities. General Counsel's Exceptions at 7. The Judge stated that, in writing his decision, "[n]umerous credibility findings were required" and that he "sometimes credit[ed] some but not all of an individual's testimony based largely on [his] observation of the witnesses and [his] opinion regarding their demeanor during that testimony." Judge's Decision at 2 n.1. Therefore, despite the General Counsel's assertion that it "does not take specific exception to the Judge's credibility determinations[,]" we construe the General Counsel's assertion that the Judge failed to note certain testimony as a challenge to the Judge's credibility findings. General Counsel's Exceptions at 1.

The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. See Department of Housing and Urban Development, Region X, Seattle, Washington, 41 FLRA 363, 364 (1991).

Further, to the extent that the General Counsel argues that the Judge disregarded certain evidence without making specific credibility findings, we find that the General Counsel's argument provides no basis for reversing the Judge's decision. We note the General Counsel's assertion that the Judge "failed to find that Teleservice Center [TSC] management was aware of two matters which . . . they clearly must have known." General Counsel's Exceptions at 6. According to the General Counsel, the Judge should have: (1) "inferred that management saw the August 1989 issue of the Unity"; and (2) found "that management became aware in August that [the employee] had threatened to file a grievance." Id. at 7. The General Counsel claims that if the Judge had made such inferences, he would have reached a different conclusion.

With respect to the incidents noted by the General Counsel, the Judge found in part that: (1) "the record [was] insufficient to establish that Respondent's agents at the TSC knew the article had appeared [in the Unity newsletter] prior to [the employee's] termination"; and (2) "the record [was] insufficient to support a finding that [the employee's] remarks at the August 16 training session concerning filing a grievance w[ere] made in such circumstances as to support a finding that responsible management or supervisors knew the statements were made." Judge's Decision at 34.

The General Counsel has not established that the Judge erred in finding the record to be insufficient to support an inference that management was aware of the article in the Unity and of the employee's remarks at the August 16 training session. Therefore, there is no basis on which to sustain the General Counsel's exception.

Accordingly, for the reasons stated in the Judge's decision, we find that the Respondent did not violate section 7116(a)(1) and (2) of the Statute when it terminated a probationary employee.

II. Order

The complaint in this case is dismissed.




FOOTNOTES:
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