46:0161(16)CA - - SSA, Inland Empire Area and AFGE - - 1992 FLRAdec CA - - v46 p161

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46:0161(16)CA
The decision of the Authority follows:


46 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

INLAND EMPIRE AREA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party)

8-CA-00259

DECISION AND ORDER

October 21, 1992

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 the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent'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 reducing the amount of gainsharing awards paid to two employees because they engaged in protected activity.

As an initial matter, the Judge rejected the Respondent's contention that the Judge was precluded by section 7116(d) of the Statute from considering the complaint because the issue involved in the complaint was raised before the Merit Systems Protection Board (MSPB) in Wooten v. Department of Health and Human Services, Nos. SF122190W0739 and SF122190W740 (Nov. 14, 1990) (Wooten I).(1)On the merits, the Judge concluded that the Respondent violated section 7116(a)(1) and (2) of the Statute by reducing the amount of the gainsharing awards paid to the two employees because they had engaged in protected activity.

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 to the extent consistent with this decision.

II. Background

The Respondent's Inland Empire Area (Area 6) consists of seven district offices, fifteen branch offices and four resident offices. Of the approximately 500 employees in Area 6, about 400 are members of the bargaining unit.

In fiscal year 1989, Area 6 was selected by the Respondent to participate in a pilot program called the Budgetary Incentive Program. Under this program, if Area 6 saved a certain percentage of its budget for the fiscal year and met several other requirements, the Area could retain a portion of the money saved to divide among its employees however it chose under a concept termed "'gainsharing.'" Judge's Decision at 2. Area 6 saved over $800,000 of its budget for the fiscal year and met the other requirements, which qualified it to receive a portion of this amount for distribution to employees.

The Area Director for Area 6 decided to distribute the award amount available for employees by allocating an equal amount to all current unit and nonunit employees, "regardless of grade, for each full month the employee performed [A]gency work in Area 6 during fiscal 1989." Id. Based on this allocation, in January 1990 "the vast majority of employees received full shares of $806.00, and 43 employees received partial shares based upon the number of months they worked in Area 6." Id. at 2-3 (footnote omitted). Of the 43 employees receiving partial shares, some were employed for fewer than 12 months and some were on extended sick leave or leave without pay during the fiscal year. Part-time employees received reduced awards based on the amount of time that they worked in a pay period. Employees who terminated their employment in Area 6 before the last day of the fiscal year did not receive anything.

Two full-time employees, Keith Wooten and Juan Quinones, who were also Union representatives, received award portions of 2 and 3 months, respectively. They had spent most of the work-year on official time conducting Union representational activities. The Area Director based their awards on information that he received in response to his inquiry to an Area District Manager "seeking a statement regarding 'employees not on duty in the Area the entire period.'" Id. at 3 n.2. According to the Area Director, the awards to Wooten and Quinones reflected the amount of time that they spent on "Agency business." Id. at 3. Eighteen other Union representatives in Area 6 received full gainsharing awards. Of those 18 employees, 17 spent fewer than 30 hours during the fiscal year on Union representational activities and one spent 71 hours on such activities.

In January 1990, Wooten and Quinones filed individual right of action (IRA) complaints with the Office of Special Counsel contesting their allegedly unequal treatment with respect to the gainsharing awards under the provisions of the Whistleblower Protection Act of 1989 (WPA). The Office of Special Counsel dismissed the complaints.

On March 5, 1990, the Union filed an unfair labor practice charge alleging that the Respondent had violated section 7116(a)(1) and (2) of the Statute by discriminating against Wooten and Quinones in withholding and reducing awards that they would have received but for their having engaged in protected Union activity.

On April 18, 1990, Wooten and Quinones filed petitions with the MSPB challenging the Respondent's failure to grant them monetary awards equivalent to those of their co-workers. The employees alleged that in their capacities as Union representatives they met the definition of "whistleblowers" under the WPA and that the reduced gainsharing awards constituted prohibited reprisal for their whistleblowing activity. On November 14, 1990, an MSPB Administrative Judge found in Wooten I that the employees had failed to establish that their roles as Union representatives conferred the status of "whistleblowers" on them under the WPA. Accordingly, the Administrative Judge held that the MSPB did not have jurisdiction over their petitions.

On November 27, 1990, the General Counsel issued the complaint in this case.

On December 19, 1990, Wooten filed with the MSPB a petition for review of the Administrative Judge's decision in Wooten I.(2) On May 21, 1992, in Wooten II, the MSPB dismissed the appeal for lack of jurisdiction. The MSPB found that although Wooten's actions "of performing [U]nion-related duties and . . . making . . . protected filings on behalf of [U]nion members are cognizable under the prohibited personnel practice set forth at 5 U.S.C. § 2302(b)(9)[,] . . . they do not constitute protected whistleblowing disclosures under [5 U.S.C. § 2302(b)(8).]" Wooten II, 54 MSPR at 146. The MSPB stated:

Since 5 U.S.C. § 1221(a) provides for the filing of an IRA appeal only where the employee . . . claims reprisal under section 2302(b)(8), and since the appellant's claims of reprisal are based on his protected filings which do not constitute whistleblowing under section 2302(b)(8), we find, under the circumstances, that the [MSPB] lacks jurisdiction to consider his IRA appeal.

Id.

III. Administrative Law Judge's Decision

The General Counsel argued before the Judge that the employees' awards were reduced because the official time that they had spent on Union activity was not considered when the awards were calculated. Therefore, according to the General Counsel, the Respondent discriminated against Wooten and Quinones because of their protected activity in violation of section 7116(a)(1) and (2) of the Statute. The Respondent asserted that the first sentence of section 7116(d) of the Statute precluded the issue from being raised before the Authority because the matter was argued before the MSPB in Wooten I.(3) The Respondent also asserted that because the same matter had been heard by the MSPB, the doctrine of collateral estoppel precluded the same issue from being raised in the unfair labor practice forum.

The Judge found that the first sentence of section 7116(d) of the Statute did not apply because the allegation that Wooten and Quinones did not receive full awards because of their Union activities is "an issue clearly cognizable as an unfair labor practice and the resolution of unfair labor practices is solely, to the exclusion of all other agencies, within the jurisdiction of the Authority." Judge's Decision at 5.(4) Additionally, noting that the doctrine of collateral estoppel does not apply where the issues in the prior and subsequent cases are different, the Judge rejected the Respondent's contention that the doctrine of collateral estoppel barred the Authority from considering the issues in this case. The Judge found that the issues in the MSPB litigation and the instant case were not the same.

As to the merits, the Judge rejected the Respondent's argument that its payment of reduced awards to Wooten and Quinones did not violate the Statute. The Judge found that the Area Director decided to distribute the gainsharing awards "equally to all employees, regardless of pay level, based solely upon time on the job performing Agency business." Id. at 6. The Judge found that an employee did not have to "have produced any additional work or achieved any particular productivity, timeliness or quality goal in personal performance" in order to receive a full share. Id. Rather, the Judge found that, as long as the Agency met the required goals, "individual employees fully participated in the award without regard to any demonstrated personal efforts or specific linkage to Agency benefit." Id. In this regard, the Judge found that "[n]o standards of performance were set to qualify an award participant nor was Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. the type of work performed considered. Time on the job, regardless of the task, was the only standard." Id.

The Judge further found that official time granted by the Respondent to the two employees for Union representation was not considered by the Respondent as qualifying time on the job. He found that Wooten and Quinones were the only employees whose time on the job did not qualify as time performing Agency business. The Judge found that the effect of allocating award payments to employees in this manner "is obvious - don't spend work time on Union representational duties, even if authorized by the [A]gency, since it can adversely affect your compensation, even in situations where the amount of compensation is not specifically linked to production standards." Id. According to the Judge, "the reality" of the Respondent's method of allocating award payments was that "[t]ime spent on Union business does not count as work time for gainsharing purposes . . . ." Id. (5)

The Judge noted that section 7131(d) of the Statute provides that employees representing an exclusive representative shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. The Judge found that the Respondent had "obviously granted" official time status to Wooten and Quinones. Id. at 7. The Judge concluded that to permit the Respondent's system of distributing gainsharing awards "would seriously deprecate the concept of 'official time'" and impermissibly reduce an employee's statutory right to engage in union representational activity on official time. Id.

Accordingly, the Judge concluded that the "Respondent's conduct of not including Union representative Wooten's and Quinones' official time spent on Union representational duties as work time, and thereby failing to pay Union representatives Wooten and Quinones full gainsharing awards, constituted discrimination" under section 7116(a)(2) of the Statute and interference, restraint and coercion under section 7116(a)(1) of the Statute. Id.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent contends that the first sentence of section 7116(d) of the Statute precludes the litigation of the instant unfair labor practice case. The Respondent asserts that that provision prohibits a party from arguing the same issue in more than one forum and the issue presented by Wooten and Quinones before the MSPB "is the same issue being raised in this proceeding; i.e., that management discriminated against them by reducing their gainsharing awards because they engaged in protected Union activities." Exceptions at 10. Further, the Respondent asserts that the issue in the unfair labor practice proceeding "is the same issue which the MSPB held could have been appealed as a prohibited personnel practice" under 5 U.S.C. § 2302(b)(9)(B). Respondent's Supplemental Brief at 3. The Respondent asserts, therefore, that the first sentence of section 7116(d) of the Statute bars the litigation of the unfair labor practice complaint.

The Respondent also contends that the Judge erred by failing to apply the doctrine of collateral estoppel to this case. The Respondent maintains that the doctrine of collateral estoppel applies because the issues presented to the MSPB are the same issues as in this case and the remaining elements of the collateral estoppel doctrine have been met.

Further, the Respondent disputes the Judge's conclusion that it violated section 7116(a)(1) and (2) of the Statute. The Respondent contends that the Judge's conclusion of discrimination does not meet the analytical framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). Although the Respondent acknowledges that Wooten and Quinones engaged in protected activity, it asserts that no evidence was presented to prove that their protected activity was a motivating factor in determining the amount of their gainsharing awards. The Respondent contends that its decision to pay prorated award amounts to certain employees was based solely on the "amount of time [those employees] spent performing [A]gency work." Respondent's Exceptions at 18. According to the Respondent, "all of the employees who received prorated awards were treated the same and for the same reason." Id. at 19. The Respondent claims, therefore, that Wooten's and Quinones' protected activity was not a motivating factor in their treatment and, accordingly, "there is no evidence of discrimination, and the required 'prima facie' showing [under Letterkenny] has not been made." Id.

The Respondent further asserts that, even assuming that a prima facie showing has been made, the remaining requirements of Letterkenny have not been met because: (1) management had a legitimate justification for reducing gainsharing awards of employees who did not perform Agency work for the full year; and (2) management would have taken the same action even in the absence of the protected activity. According to the Respondent, management was justified in reducing awards for employees who did not fully contribute to the increased productivity and quality of the organization. Further, the Respondent contends that if Wooten and Quinones had not performed Agency work in Area 6 for reasons other than representational duties, management would have taken the same action because the action of reducing the awards was based on time spent performing Agency work.

The Respondent contends that the Judge's conclusion that the time spent by Wooten and Quinones on Union representational duties was time spent on Agency work is "erroneous as a matter of law" because "such duties are not [A]gency work." Id. at 20 and 22 (emphasis deleted). In support, the Respondent cites Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF); Marten v. Marable, No. 90-1503 (3d. Cir. Dec. 19, 1990) (mem.) (Marable); and National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U. S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 1285 (1991) (Naval Underwater Systems Center).

B. General Counsel's Opposition

The General Counsel contends that section 7116(d) of the Statute does not bar the processing of the unfair labor practice complaint in this case. The General Counsel notes the Judge's finding that the issues in the MSPB proceeding and the instant case are different. Moreover, the General Counsel argues that even if the issues in the two proceedings were the same, the first sentence of section 7116(d) would not bar the unfair labor practice proceeding because that provision applies only if the issue raised in the unfair labor practice proceeding could have been "properly raised" in an MSPB appeal. Opposition at 2. Noting the decisions in Wooten I and Wooten II dismissing the cases for lack of jurisdiction, the General Counsel asserts that the "mistaken decision" of Wooten and Quinones to have alleged a violation of section 7116(a)(2) of the Statute in the "wrong forum" (MSPB) is not a bar under section 7116(d) because that allegation "cannot be 'properly' raised in the MSPB proceeding." Id. at 3. The General Counsel also contends that as to the MSPB's statement in Wooten II that the allegations contained in Wooten's petition may be protected activity under the prohibited personnel practice provision (5 U.S.C. § 2302(b)(9)), that statement constitutes "dicta [that] does not affect the outcome of this matter," and the General Counsel urges the Authority to reject the MSPB's reasoning in this regard. General Counsel's Supplemental Brief at 1 n.1.

As to the Respondent's collateral estoppel contention, the General Counsel asserts that this doctrine "only applies if the alternative forum has jurisdiction over the discriminatory and coercive distribution of cash awards." Opposition at 4 (emphasis in original). The General Counsel contends that because the MSPB dismissed Wooten's petition for lack of jurisdiction, the matter was not properly before the MSPB and, therefore, the collateral estoppel doctrine is not applicable in the instant case.

Additionally, the General Counsel disputes the Respondent's contention that it did not violate section 7116(a)(1) and (2) of the Statute. The General Counsel rejects the Respondent's argument that because the Area Director awarded full awards to other Union stewards, there is no evidence of Union animus. The General Counsel asserts that the Respondent's treatment of other stewards is not probative because, unlike Wooten and Quinones, the other stewards used only small amounts of official time and it is likely that the Area Director was unaware of the use of official time by the other stewards. Further, the General Counsel contends that the Respondent's argument that its conduct was justified because Wooten and Quinones did not fully contribute to productivity "ignores the fact that these awards were not based on employee productivity" but rather were "calculated solely on attendance, and not the quality of individual employee[s'] work." Id. at 5. Finally, the General Counsel asserts that BATF "offers no guidance for this case" because the Supreme Court's decision in BATF was "limited to the narrow question of whether agencies were statutorily obliged to pay union negotiators per diem pursuant to section 7131(a) of the Statute[,]" and did not involve an allegation of "discrimination or interference based on inequitable distribution of monetary awards." Id. at 6. The General Counsel asserts that, subsequent to BATF, the Authority has held that agencies may not penalize an employee monetarily for time spent on official time.

C. Charging Party

The Charging Party asserts that in dismissing Wooten's appeal for lack of jurisdiction, the MSPB ruled that the issue in the instant case cannot properly be raised under the statutory appeals procedure. The Charging Party asserts, therefore, that the unfair labor practice complaint is not barred by the first sentence of section 7116(d) of the Statute. The Charging Party further asserts that the Authority has exclusive jurisdiction to decide allegations that an agency has violated the unfair labor practice provisions of the Statute by discriminating against employees for engaging in protected activity. The Charging Party contends that to "relegate violations of [section 7116(a)(2) of the Statute] to the MSPB or any other statutory appeals process is to render section 7116(a)(2) meaningless and unenforceable." Charging Party's Supplemental Brief at 1.

V. Analysis and Conclusions

A. The Authority Has Jurisdiction in This Case

We agree with the Judge's conclusion that section 7116(d) of the Statute does not preclude the Authority's consideration of the issues raised in the unfair labor practice complaint. As noted previously, the first sentence of section 7116(d) provides: "Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section." 5 U.S.C. § 7116(d). In its supplemental brief, the Respondent asserts that, despite MSPB's dismissal of Wooten's petition for lack of jurisdiction in Wooten II, the first sentence of section 7116(d) of the Statute precludes the litigation of this case before the Authority. We disagree.

The Respondent asserts that the fact that the MSPB determined that Wooten's protected activities did not constitute whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) does not change "the fact that the [MSPB] also concluded that the issue presented by the employee could have been raised under the statutory appeal procedure[,]" that is, under 5 U.S.C. § 2302(b)(9)(B). Respondent's Supplemental Brief at 2 (emphasis in original). In our view, the Respondent has misconstrued MSPB's statement with respect to 5 U.S.C. § 2302(b)(9)(B).

As set forth above, the MSPB found, as relevant here, that Wooten's actions "of performing [U]nion-related duties and . . . making . . . protected filings on behalf of [U]nion members are cognizable under the prohibited personnel practice set forth at 5 U.S.C. § 2302(b)(9)." Wooten II, 54 MSPR at 146. Without more, the fact that Wooten's actions described by the MSPB are cognizable under the prohibited personnel practice set forth at 5 U.S.C. § 2302(b)(9) does not mean that the issue in the instant case could be properly raised before the MSPB. MSPB has jurisdiction over only certain personnel actions and, as demonstrated below, the awarding of gainsharing awards is not one of the personnel actions over which the MSPB has jurisdiction.

5 U.S.C. § 2302(b) "is not an independent source of appellate jurisdiction for the [MSPB]; that provision itself authorizes no appeals. Therefore, the personnel action which is the subject of the appeal must first be brought within the [MSPB's] appellate jurisdiction under some other 'law, rule, or regulation,' . . . before the [MSPB] may consider" a 5 U.S.C. § 2302 prohibited personnel practice allegation. Wren v. Department of the Army, 2 MSPR 1, 2 (1980). See also Maddox v. MSPB, 759 F.2d 9, 10 (Fed. Cir. 1985); Marren v. Department of Justice, 51 MSPR 632, 638-39 nn.5, 6 and 7 (1991). Thus, an allegation of a prohibited personnel practice is reviewable by the MSPB only in connection with an appealable action. Without an appealable action, the MSPB lacks jurisdiction.

In this case, the action in dispute is the Respondent's decision not to distribute full gainsharing awards to Wooten and Quinones. The statutory authority for the payment of gainsharing awards is contained in 5 U.S.C. § 4502(d) and 5 U.S.C. § 5407(d). See 5 C.F.R. § 451.101(b) and (c); Federal Personnel Manual (FPM) Letter 451-6, April 10, 1989. The Respondent has not demonstrated that an agency's action in distributing gainsharing awards is an action that is appealable to the MSPB. Based on our review of the actions that are appealable to the MSPB under its regulations, 5 C.F.R. § 1201.3, and based on our review of 5 U.S.C. § 4502(d) and 5 U.S.C. § 5407(d), we find that the Respondent's action in distributing the gainsharing awards to its employees is not an action that is appealable to the MSPB.

Because the distribution of gainsharing awards is not a matter that is appealable to the MSPB, Wooten's and Quinones' allegations with respect to the Respondent's distribution of the awards could not properly be raised under a statutory appeals procedure within the meaning of section 7116(d) of the Statute. Therefore, we conclude that the first sentence of section 7116(d) does not preclude us from deciding the instant unfair labor practice complaint. Further, in view of our conclusion that the issue presented in this case could not properly be raised before the MSPB, we reject the Respondent's contention that the doctrine of collateral estoppel is applicable to the facts of this case. See U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 982-83 (1990).

Additionally, we find that the instant case is distinguishable from Department of Commerce, Bureau of the Census v. FLRA, No. 91-2188 (4th Cir. Oct. 2, 1992) (Commerce), in which the court denied the Authority's application for enforcement of Bureau of the Census, 41 FLRA 436 (1991) (Census). In Census, the unfair labor practice complaint alleged that the agency violated section 7116(a)(1) of the Statute by issuing a record of infraction and a letter of proposed removal to an employee that were based in part on the employee's protected activity. In agreement with the agency, the court found that the complaint was barred under the first sentence of section 7116(d) of the Statute because the agency had ultimately removed the employee and, therefore, the initial disciplinary actions had "ripen[ed] into full-blown 'adverse employment actions'" which could properly be raised in an MSPB statutory procedure. Commerce, slip op. at 12 (referring to adverse actions enumerated in 5 U.S.C. § 7512). In contrast, the instant case concerns the Respondent's reduction of employees' gainsharing awards, a matter which could not properly be raised under a statutory appeals procedure within the meaning of the first sentence of section 7116(d) of the Statute. Moreover, the reduction in the awards is not related to any matter which could be raised under a statutory appeals procedure within the meaning of the first sentence of section 7116(d) of the Statute.

B. The Respondent Violated the Statute

The Respondent asserts that the Judge's conclusion that it discriminated against the employees because of their protected activity within the meaning of section 7116(a)(2) of the Statute does not meet the analytical framework set forth in Letterkenny. We disagree.

In cases alleging a violation of section 7116(a)(2), the General Counsel bears the burden of proving by a preponderance of the evidence 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. If the General Counsel makes this 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 the action; and (2) the same action would have been taken in the absence of protected activity.

The Respondent concedes that Wooten and Quinones were on official time and were "engaged in protected activity" during the relevant time. Exceptions at 17. However, the Respondent argues that this protected activity was not a motivating factor in connection with its distribution of the gainsharing awards to these employees. We reject this argument.

The record shows that the Respondent awarded Wooten and Quinones 2 and 3 months' gainsharing awards, respectively, based on information provided by their Area Manager. The Area Manager had, pursuant to the Area Director's request, provided a list of employees, including Wooten and Quinones, whom she determined were not on duty all of fiscal year 1989. As to Wooten and Quinones, the Area Manager noted certain dates and indicated that the employees had "performed some Agency work" during the dates provided. See Transcript at 91-92 and Respondent's Exhibits 16 and 17. The record further shows that Wooten and Quinones had spent the remainder of fiscal year 1989 on official time conducting Union representational activities and that the Area Director viewed "official time on Union business [as] time away from Agency work which accomplished the goals Area 6 had to meet to obtain the gainsharing award." Judge's Decision at 3 (footnote omitted). Further, the record shows that Wooten's and Quinones' gainsharing awards were reduced in proportion to the amount of time that they spent performing representational matters on official time.

We reject the Respondent's argument that the fact that the Area Director awarded full awards to other Union stewards who had used official time shows that the Area Director's actions towards Wooten and Quinones were not motivated by consideration of their protected activity. The Area Director had no personal knowledge of employees' use of official time. See Transcript at 101. The managers of these other stewards did not inform the Area Director of times that they considered the employees not on duty, as Wooten's and Quinones' manager did. See id. at 101-03. Thus, unlike the situation with respect to Wooten and Quinones, there is no evidence in the record that the Area Director was even aware that the other employees who were Union stewards had used any official time at all when he allocated the gainsharing awards. Therefore, the Area Director's actions with respect to those employees are irrelevant with regard to the Area Director's actions in giving reduced awards to Wooten and Quinones.

Accordingly, contrary to the Respondent's contention, we find that the record amply demonstrates that the fact that Wooten and Quinones were engaged in protected activity on official time during the relevant time was the motivating factor in the Respondent's application of its criterion for determining employees' award amounts. The Respondent's discriminatory application of this criterion resulted in Wooten and Quinones receiving reduced awards. Therefore, consistent with Letterkenny, we find that the General Counsel established a prima facie case of discrimination.

We further find that the Respondent has not established that: (1) there was a legitimate justification for its action; and (2) it would have taken the same action in the absence of protected activity. The Judge found that the evidence showed that to receive a full share award an employee need not have achieved any particular productivity, timeliness or quality goal in personal performance. Rather, according to the Judge, as long as the Respondent met its required goals, employees fully participated in the awards without regard to any demonstrated personal efforts or specific linkage to Agency benefit. The record supports the Judge's finding that the criterion used by the Respondent for granting full gainsharing awards to employees was the amount of time that the employee was on the job, regardless of task, during the relevant time. That is, the Respondent based the award on the amount of time that an employee was present during the employee's scheduled hours of duty.

The record shows that the Respondent used a "'group award-type'" method for distributing the awards. Respondent's Exhibit 14 at 2. Under the gainsharing program, management can focus on individuals or groups. See FPM Letter 451-6 and Attachment to Letter at 1. As to group programs, the FPM Letter states, in part, that "[g]roup programs relate organizational performance to group awards and usually have employees participate in solving problems that will improve productivity, quality and service." Id. The FPM Letter also states that productivity gainsharing "involves intensive labor-management cooperation[.]" Id. These features of the gainsharing program show that the program allows an agency flexibility in the implementation of its program. Because the gainsharing program allows management flexibility in its implementation, we find that under the program management has discretion to base awards on the organizational performance of a group of employees or on individual employees' productivity. See National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1061-62 (1991), petition for review filed, No. 91-1472 (D.C. Cir. Sept. 26, 1991) (holding that gainsharing program is a matter that is within an agency's discretion under 5 U.S.C. Chapter 45). In this case, the Respondent based the award on the composite efforts of Area 6 employees rather than on individual performance, and, as found above, determined the amounts of the awards based on the amount of time that an employee was present during the employee's scheduled hours of duty, regardless of the type of work the employee performed.

The Judge found that the time that was deducted in calculating Wooten's and Quinones' share of the award was time that was spent performing representational activities under section 7131(d) of the Statute. Section 7131(d) authorizes the parties to a collective bargaining relationship to negotiate over grants of official time for employees who are engaged in labor-management relations activities that are not covered by other provisions of section 7131. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 353 (1992). Official time under the Statute "is time which counts toward the fulfillment of an employee's basic work requirement." National Treasury Employees Union, Chapter 65 and Department of the Treasury, Internal Revenue Service, 25 FLRA 373, 376 n.3 (1987).

During part of the relevant time, Wooten and Quinones performed representational duties on authorized official time. Such duties were performed by these employees during the workday during their scheduled hours of duty. However, official time granted for Union representation by the Respondent to Wooten and Quinones was not considered qualifying time on the job by the Respondent even though employees participated in the awards without regard to any demonstrated personal efforts or specific linkage to Agency benefit. Area 6 employees were entitled to gainsharing awards because of their collective contribution to the accomplishment of the Respondent's goal. We find, therefore, based on the criterion established by the Respondent for distribution of the awards, that Wooten and Quinones qualified to receive full shares.

We also find that Wooten's and Quinones' situation was unlike employees who were employed fewer than 12 months or were on extended sick leave or leave without pay during the fiscal year. Unlike these employees, who were absent during the workday, Wooten and Quinones were not absent during the workday. Wooten and Quinones were the "only two employees" who were present during their scheduled hours of duty whose time did not qualify as time under the criterion established by the Respondent. Judge's Decision at 6. We agree with the Judge's statement that the foreseeable effect of the Respondent's standard of award payment is "obvious--don't spend work time on Union representational duties, even if authorized by the [A]gency, since it can adversely affect your compensation, even in situations where the amount of compensation is not specifically linked to production standards." Id. Further, we note that in enacting the Statute, Congress found that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations in decisions that affect them safeguards the public interest and contributes to the effective conduct of public business. 5 U.S.C. § 7101. Official time used for representational purposes, where approved by an agency, furthers the public interest and contributes to effective and efficient Government. For example, a union representative's participation in representational activities contributes to the resolution of disputes and effective labor-management relations, which contributes to the fulfillment of agency goals.

We also find that BATF does not require us to reach a different result. BATF concerned whether employee union negotiators engaged in collective bargaining under section 7131(a) of the Statute were in a duty status for the purposes of receiving travel and per diem under section 7131(a) of the Statute or pursuant to 5 U.S.C. § 5702(a). Because BATF involved official time under section 7131(a) of the Statute and travel and per diem under 5 U.S.C. § 5702(a), and this case does not, we find that BATF presented different issues from the issues in this case and that BATF is not controlling here.

Further, we find that Naval Underwater Systems Center is not controlling in this case. In Naval Underwater Systems Center, we found that a proposal concerning a union president's eligibility for performance awards under 5 U.S.C. § 4302(a) and 5 C.F.R. § 430.203 was nonnegotiable. In particular, we concluded that under 5 U.S.C. Chapter 43 and its implementing regulations, job performance may not encompass duties and responsibilities performed on official time on behalf of a labor organization but, instead, is intended to encompass an employee's performance of agency-assigned duties and responsibilities. We specifically found that 5 U.S.C. § 4302 requires that elements and standards encompass only agency-assigned duties.

In this case, unlike Naval Underwater Systems Center, the issue concerns gainsharing awards under 5 U.S.C. Chapters 45 and 54 rather than performance awards under 5 U.S.C. Chapter 43. Under the gainsharing program, agencies have the discretion to reward employees on the basis of their individual performance or on the basis of a group's performance. Insofar as group awards are concerned, under 5 U.S.C. Chapters 45 and 54, agencies are not bound, as they are under 5 U.S.C. Chapter 43, to base a determination as to whether an employee receives an award directly on the employee's performance. The awards distributed to employees in Area 6 were not based on individual performance. Rather, the awards were based on the entire efforts of Area 6 or the group's performance. Because awards provided under the gainsharing program have a different basis from awards authorized under 5 U.S.C. Chapter 43, we conclude that Naval Underwater Systems Center does not control the disposition of this case.

Additionally, we reject the Respondent's reliance on Marable as support for its position that official time for union representation is not work time. That decision, which concerned the Federal Tort Claims Act, has been designated by the court to have no precedential value.

Based on the above, we find that the Respondent has not established that: (1) there was a legitimate justification for its action; and (2) it would have taken the same action in the absence of protected activity. Consequently, we conclude that the Respondent violated section 7116(a)(1) and (2) of the Statute by reducing the amount of the gainsharing awards paid to Wooten and Quinones.(6)

VI. 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 Social Security Administration, Inland Empire Area, shall:

    1. Cease and desist from:

        (a) Discriminating against employees in the bargaining unit represented by the American Federation of Government Employees, AFL-CIO, by reducing the amount of their gainsharing awards because the employees engaged in protected activity.

        (b) In any like or related manner interfering with restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

    2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

        (a) Make whole employees Keith Wooten and Juan Quinones, representatives for the American Federation of Government Employees, AFL-CIO, the exclusive collective bargaining representative, by paying them the balance of the full fiscal year 1989 gainsharing award of $806.00, to the extent not already paid, with interest for the period in which their full share awards were improperly denied.

        (b) Post at its Area 6 facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Area 6 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 insure 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 for the San Francisco Regional Office, Federal Labor Relations Authority, 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 discriminate against employees in the bargaining unit represented by the American Federation of Government Employees, AFL-CIO, by reducing the amount of their gainsharing awards because the employees engaged in protected activity.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL make whole employees Keith Wooten and Juan Quinones, representatives for the American Federation of Government Employees, AFL-CIO, the exclusive collective bargaining representative, by paying them the balance of the full fiscal year 1989 gainsharing award of $806.00, to the extent not already paid, with interest for the period in which their full share awards were improperly denied.

___________________________
(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 of the Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103.




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


1. At the time that the exceptions in this case were filed, the MSPB Administrative Judge's decision in Wooten I was pending on appeal before the MSPB. We deferred processing this case until the MSPB issued a decision in the appeal of Wooten I. On May 21, 1992, the MSPB issued its decision in that case, Wooten v. Department of Health and Human Services, 54 MSPR 143 (1992) (Wooten II). Thereafter, pursuant to our request, the parties filed supplemental briefs addressing the effect of Wooten II on the disposition of this case. 

2. Quinones did not file a petition for review of the Administrative Judge's decision.

3. The first sentence of section 7116(d) of the Statute states:

Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section.

4. The Judge also found that the second sentence of section 7116(d) did not apply to this case. This finding is not in dispute.

5. The Judge noted that the record was not clear as to "whether management officials who dealt with the Union on representational matters received gainsharing awards or if their time spent dealing with the Union was counted as time spent supporting goals relating to the awards." Id. at n.5.

6. In the recommended order, the Judge directed that the Respondent make the employees whole by paying them the balance of the full fiscal year gainsharing award, to the extent not already paid. We will modify the Judge's order to include the payment of interest. See Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of the Director of Finance and Accounting, Indianapolis, Indiana, 41 FLRA 926, 944-45, petition for review filed, No. 91-1471 (D.C. Cir. Sept. 26, 1991); Department of the Ar