43:0467(45)AR - - AFGE Local 3446 and HHS, SSA - - 1991 FLRAdec AR - - v43 p467
[ v43 p467 ]
The decision of the Authority follows:
43 FLRA No. 45
FEDERAL LABOR RELATIONS AUTHORITY
OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN
SOCIAL SECURITY ADMINISTRATION
December 19, 1991
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles A. Morgan, Jr. filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
An employee filed a grievance challenging the Agency's failure to select him for a field representative position. The Arbitrator sustained the grievance.
For the following reasons, we deny the Agency's exceptions.
II. Background and Arbitrator's Award
Since 1976 the grievant has been employed as a claims representative in the Agency's Columbus, Ohio downtown office. Since 1980 he has also been the "local union representative" in the office. Award at 10. At the time the dispute in this case arose he was executive vice president of the Union and also a representative to the bargaining council.
Included in the staffing of the Agency's district and branch offices are GS-10 claims representatives and GS-10 field representatives. The claims representatives work primarily in the office, interviewing members of the public who visit or telephone the office and adjudicating claims for benefits. The field representatives perform some of the same duties, but their main duty is to contact individuals, employers, and governmental agencies outside of the office. The field representatives offer assistance to employers, conduct seminars, provide radio spots, and provide newspapers with weekly articles. They also conduct outreach programs and go into the community to find individuals who otherwise might not have the opportunity to visit the Agency offices to apply for benefits.
When the Agency fills a vacancy in a field representative position, it does so by reassigning a GS-10 claims representative to the position. A vacancy announcement is posted, and interested employees may apply. All qualified employees are referred to the appropriate district manager for consideration and selection. Although there is no difference in grade between the positions of claims representative and field representative, the field representative position provides additional experience.
In April of 1990, the Columbus district received authorization to fill an additional field representative position. The position had been vacant for about 6 months, during which time the Agency had had only one field representative in the office. Applicants were sought and a list of seven qualified applicants was referred to the district manager. Included on the list of qualified applicants was the name of the grievant and that of the successful applicant. The grievant filed a grievance over the Agency's failure to select him for the position. The grievance was not resolved and was submitted to arbitration.
The Arbitrator stated that the issue before him was "whether or not the grievant was denied the reassignment to the field representative position because of his involvement in union activities as a union representative." Id. at 4-5.
Before the Arbitrator the Union argued that the grievant was not reassigned to the field representative position based in part "on his activities over the past several years as a union representative in representing grievants in arbitration hearings, unfair labor practice charges, etc. . . . ." Id. at 5. The Union asserted that the time the grievant spent on Union activities "resulted in his being able to perform his usual work duties less than 100 percent of the time and that this was improperly taken into consideration . . . ." Id.
The Agency denied that the grievant was not reassigned to the field representative position because of his Union involvement. Rather, the Agency argued before the Arbitrator that the "district manager selected the individual . . . that he felt would do the best job taking into account such factors as performance, initiative, enthusiasm, creativity, and imagination, along with other necessary skills to accomplish the job." Id.
The Arbitrator first examined the education and work history and experience of the grievant. The Arbitrator noted that for the 4 years prior to his unsuccessful application for the field representative position, the grievant was rated as outstanding, the Agency's highest performance rating, and that since March 1987 the grievant had received four performance awards.
The Arbitrator then set forth the education and experience of the successful applicant. The selectee had been hired by the Agency in 1983. Unlike the grievant, the selectee did not have a Master's degree, did not have a wide range of experience in the Agency's various benefit programs and had not received "outstanding" ratings. The grievant had received two awards, one for clearance of "high volume of work" and one for "sustained excellent performance." Id. at 9.
The Arbitrator stated that during the year prior to the vacancy posting and application by the grievant, "labor-management relations in the district office had deteriorated, resulting in several unfair labor practice charges and a large number of grievances, which actively involved the grievant because of his union position." Id. at 10. The Arbitrator noted that during the year preceding the grievant's application for the vacancy, it was undisputed that the grievant had been spending "somewhere around 25 percent of his time" on Union activities as a Union representative, and "as such, he was in an adversarial position to that of the district manager." Id. at 10-11.
The Arbitrator found that sometime before the selection of the successful applicant, the grievant had a discussion with the assistant manager of the Columbus office concerning the possibility of his appointment to a field representative position and "was asked by the assistant district manager how he could expect to be appointed to a field representative position where he would be representing the [A]gency's views since he was a [U]nion representative." Id. at 11. The Arbitrator noted, however, that the district manager testified that he had not discussed his selection decision with the assistant manager.
At the arbitration hearing, a claims representative in the Columbus office testified that approximately two weeks after the selection, the district manager called her into his office to ask her "why there were such a large number of grievances being filed," to which she replied "'Perhaps it was because of passing over the grievant.'" Id. This same witness also testified that the district manager told her that he had been strongly requesting authorization for another field representative and that "he would have looked like a fool upon receiving such authorization if he had chosen someone who could only give 50 percent of the time to the job." Id. The district manager admitted in his testimony that he had had a conversation with this witness about the number of grievances in her unit, but denied that he had discussed the nonselection of the grievant.
Prior to the selection, the grievant also had a conversation with the district manager concerning the vacancy. The grievant advised the district manager that in the past year he had spent a lot of time on Union activities, but he was confident that if he received the appointment he could spend at least 75 percent of his time on Agency work. He then asked the district manager if this would be a problem. The district manager replied that 70 to 75 percent of his time dedicated to Agency work would not be a problem. At the termination of the interview, the grievant asked the district manager to let him know if 75 percent of his time devoted to Agency matters would be a problem; he heard nothing further from the district manager. The district manager testified that he had explained to the grievant that he had complained to his superiors of being understaffed, and having received the necessary authorization to fill the position, he had to fill the field representative position with someone who could work at least 75 percent of the time on Agency business.
The Arbitrator noted that during the second step grievance meeting, when the grievant and his representative requested a reason why the grievant was not selected, the district manager advised them that he would give them a reason "off the record." Id. at 13.
Citing Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Arbitrator stated that the burden of proof was on the Union to demonstrate, by a preponderance of the evidence, that the denial of the grievant's application for reassignment was based upon "the improper consideration" of his Union activities and that such consideration was a "motivating factor" in the denial of reassignment. Award at 14. The Arbitrator noted that if the Agency could show that the alleged discriminatory action would have been taken in the absence of protected activity, "the [U]nion must fail[.]" Id.
The Arbitrator concluded, based upon the record evidence, including the testimony of witnesses and his assessment of their credibility, that the Union had "successfully carried its burden of proof[.]" Id. In this regard, the Arbitrator noted, among other things, the statements attributed to, although denied by, the district manager regarding his reasons for not selecting the grievant; the district manager's indication that he would provide a reason to the grievant for his nonselection "off the record;" and the district manager's stated concerns before the selection about the amount of time the grievant spent engaging in protected activity. The Arbitrator also considered the "greater experience of the grievant, his higher educational achievements, his two-year experience with [various benefit] programs, and his top-ranking outstanding employment evaluations." Id. at 15.
The Arbitrator recognized that "none of these criteria is binding on a district manager and that in the absence of an improper motivating factor, the district manager has discretion and has no responsibility to justify his decision." Id. The Arbitrator stated that when, as here, a decision is challenged, "however, a rational basis for the decision helps to rebut the prima facie case." Id. The Arbitrator concluded that in this case "the reasons advanced for the decision were not persuasive as they were equally applicable to the grievant as well as the successful applicant." Id.
Accordingly, the Arbitrator found that "the grievant was denied the reassignment to the position for which he applied because of improper consideration of the grievant's protected union activity in violation of [s]ection 7116(a)(1) and (2) of the [S]tatute and of Article 3, Section 1, of the contract." Id. at 15-16.
Because he found that "the grievant was denied the requested transfer because of union animus," the Arbitrator ordered the Agency to retroactively assign the grievant the field representative status as of the effective date of the reassignment of the selectee. Id. at 16. As both the claims representative position and the field representative position were at the GS-10 level, no backpay was ordered.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency contends that the Arbitrator "applied the wrong standard" in concluding that the Agency violated section 7116(a)(1) and (2) of the Statute by not selecting the grievant for reassignment.(*) Exceptions at 1. The Agency asserts that the Arbitrator "erroneously concluded that any consideration of protected activity by the Agency in connection with its selection decision was improper" and that "[a]bsent a proper showing of a violation of 5 U.S.C. § 7116, the Arbitrator's award violates 5 U.S.C. § 7106(a)(2)(C), in that it abridged management [sic] right to make the selection for the position in question." Id. at 2.
The Agency maintains that to meet the needs of the Agency, a field representative must spend "at least 75% of his time performing the duties of the position." Id. The Agency acknowledges that it was "undisputed that the grievant had been spending somewhere around 25 percent of his time on union activities as a union representative . . . ." Id. (quoting Arbitrator's award). Nonetheless, the Agency asserts that the grievant's "unavailability" was "determined to be a real liability" and that, therefore, the district manager made the selection decision based on "legitimate managerial reasons." Id. at 6.
The Agency argues that the Arbitrator, in determining whether the Agency violated section 7116(a)(1) and (2) of the Statute, was bound by Authority precedent and that such precedent does not support the Arbitrator's conclusions. Specifically, the Agency claims that "consideration of union activity is not prohibited on a per se basis and that such consideration can be legitimate in certain circumstances." Id. at 3.
The Agency maintains that although the Arbitrator found that the grievant was denied reassignment because of "improper consideration" of the grievant's protected activities, the Arbitrator "did not acknowledge that consideration of protected activity was not a per se violation of the Statute and that animus was not properly inferred from the mere fact that protected activity was a factor in a management determination." Id. at 4. In support of its position the Agency cites Social Security Administration, Baltimore, Maryland, 22 FLRA 420 (1985), Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA 761 (1985) (Scott AFB), review denied mem. sub nom. National Association of Government Employees, Local R7-23 v. FLRA, No. 86-1-11 (D.C. Cir. Dec. 10, 1986) and Department of the Navy, Portsmouth Naval Shipyard, 7 FLRA 766 (1982). The Agency argues that the evidence before the Arbitrator was not sufficient to support a finding of animus and that, in accordance with Authority precedent, its legitimate consideration of the availability of the grievant to perform field representative duties was, therefore, appropriate.
B. The Union's Opposition
The Union asserts that the Agency's reliance on the cases cited is misplaced. The Union argues that the Arbitrator properly followed Authority precedent in his application of the Letterkenny framework to the facts of this case and correctly concluded that the consideration of the grievant's Union activity was improper and that the grievant was denied reassignment because of animus on the part of the Agency.
The Union contends that the Agency's exceptions constitute an attempt to relitigate the case and that the Agency's arguments constitute "disagreements with the [A]rbitrators' reliance on particular evidence . . . ." Opposition at 5. The Union further asserts that the Agency, in its exceptions, seeks to interject a "new argument" that the Agency may consider the Union activities of job applicants when "[d]uring the entire presentation of the case, the Agency alleged that they did not consider the grievant's Union activities." Id. (emphasis in original). The Union states that now the Agency contends that not only did it "make such a consideration, [it] contend[s] that such consideration is perfectly justified." Id. (emphasis in original).
IV. Analysis and Conclusions
We conclude that the Arbitrator properly applied Authority precedent, including the Letterkenny analytical framework, in determining that the Agency failed to reassign the grievant based upon improper consideration of his Union activities. See National Treasury Employees Union and U.S. Department of Health and Human Services, Family Support Administration, 35 FLRA 501, 507-08 (1990) (Family Support Administration). In our view, the Agency misapprehends the Arbitrator's reasoning. The Arbitrator did not conclude, as the Agency appears to assert, that any consideration by the Agency of the time spent by the grievant on protected activities was a per se violation of section 7116(a)(1) and (2) of the Statute. Rather, the Arbitrator concluded that the Agency harbored animus toward the grievant based upon his Union activities and improperly considered his Union activities, including the time spent on such activities, when making its selection decision.
In this regard, the Arbitrator noted that it was undisputed that the grievant spent no less time away from his duties because of his Union activities than the Agency contended was necessary for him to perform the duties of a field representative, and that he had assured the district manager that he would spend no additional time on Union matters if selected for the position. Indeed, the grievant sought to allay the district manager's concerns about his use of official time by requesting that the district manager inform him if he foresaw problems with his continued use of 25 percent of his time for Union matters. Nonetheless, the district manager commented unfavorably on the amount of time the grievant spent on his Union activities and the number of grievances that had been filed. The Arbitrator also noted the deteriorated state of labor relations, the grievant's protected activities, the Agency's expressed concerns and comments about the grievant's activities and the superior qualifications of the grievant.
The Arbitrator examined the reasons given by the Agency for not selecting the grievant. Those reasons went primarily to the relative qualifications and abilities of the candidates and did not specifically reference the amount of time the grievant might be able to devote to the duties of a field representative. The Arbitrator found that these reasons were not "persuasive." In other words, although not specifically so stated, the Arbitrator found that the reasons given by the Agency for the grievant's nonselection were pretextual.
In view of these findings, the Agency has not established that the Arbitrator was incorrect in concluding that the Agency failed to select the grievant because of his Union activities and not for "legitimate managerial reasons," as claimed by the Agency. Exceptions at 6. Although management's needs and requirements regarding the performance of assigned work must be recognized and accommodated, official time may not be a factor in personnel actions unless an agency can show that the use of official time will interfere with the accomplishment of its work. See Scott AFB, 20 FLRA at 764-65 (management may not deny official time or reassign an employee for using official time unless it can demonstrate that the use of official time intereferes with the employee's performance of assigned work). In this case the Agency did not establish any legitimate work-related reasons for failing to select the grievant. Rather, although the grievant assured the district manager that he could devote 75 percent of his time to the field representative duties, an amount the Agency concedes in its exceptions wou