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
[ v42 p22 ]
The decision of the Authority follows:
42 FLRA No. 2
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
SOCIAL SECURITY ADMINISTRATION
DETROIT TELESERVICE CENTER
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3239 OF COUNCIL 220
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