42:0177(13)CA - - Customs Service Region IV, Charleston District, Charleston, SC and NTEU - - 1991 FLRAdec CA - - v42 p177

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[ v42 p177 ]
42:0177(13)CA
The decision of the Authority follows:


42 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES CUSTOMS SERVICE

REGION IV, CHARLESTON DISTRICT

CHARLESTON, SOUTH CAROLINA

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/Union)

4-CA-90665

DECISION AND ORDER

September 16, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by both the General Counsel and the Union to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's 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 placing a unit employee on a Performance Improvement Plan (PIP) in retaliation for having filed a grievance against her supervisor. The Judge found that the General Counsel failed to prove by a preponderance of the evidence that the Respondent had violated the Statute, as alleged. Accordingly, the Judge recommended dismissal of the complaint.

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 those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.(1)

In Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) the Authority set forth the analytical framework to be applied in determining whether a respondent violates section 7116(a)(2) of the Statute. The Authority reaffirmed that the General Counsel bears the burden of establishing by a preponderance of the evidence that an unfair labor practice has been committed. Under the Letterkenny framework, the General Counsel must establish that the employee against whom the alleged discriminatory action was taken was engaged in protected activity and that consideration of such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118. If the General Counsel makes this required prima facie showing, the respondent may seek to establish, by a preponderance of the evidence, that there was a legitimate justification for its action and that the same action would have been taken even in the absence of the consideration