46:1375(134)CA - - Agriculture, Forest Service, Frenchburg Job Corps, Mariba, KY - - 1993 FLRAdec CA - - v46 p1375
[ v46 p1375 ]
The decision of the Authority follows:
46 FLRA No. 134
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF AGRICULTURE
U.S. FOREST SERVICE
FRENCHBURG JOB CORPS
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER REMANDING COMPLAINT
February 12, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent did not file an opposition to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1), (2), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by lowering an employee's performance rating because the employee was a Union official who used official time for representational activities and by stating to the employee, in essence, that she was using a lot of official time and that it had to affect her performance. The Judge found that the Respondent did not violate the Statute as alleged and recommended that the complaint be dismissed.
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.(1) Upon consideration of the entire record, we find, for the following reasons, that the complaint must be remanded to the Judge.
The facts, set forth more fully in the Judge's decision, are summarized below.
The Union is the exclusive representative of a unit of the Respondent's employees. The Respondent operates a Job Training Center for young adults (the Center) within its Daniel Boone National Forest (the Forest). Employee Joyce Roach has been a GS-5 Purchasing Agent at the Center for approximately 12 years. From 1987 until January of 1990, Roach was supervised by Support Services Supervisor Deana Lesch. Lesch was transferred to another part of the Forest sometime in January of 1990. From that time until March 25, 1990, Roach was supervised by Lesch's former supervisor, Administrative Officer Emma Caswell. On March 25, 1990, Linda Henry became the new Support Services Supervisor and Roach's first-line supervisor. Henry had no purchasing experience and was a GS-5 personnel clerk at the Center prior to her selection as Support Services Supervisor.
As the Center's Purchasing Agent, Roach purchases and makes payments for most of the material used by the Center. Roach's performance is rated on four critical elements and one noncritical element. The four critical elements are: (1) Small Purchasing, which involves reviewing and acting on procurement requests from the Center staff; (2) Imprest Fund Cashier; (3) Purchases other than Purchase Orders, which involves checking vouchers and other forms for accuracy and consistency with current guidelines; and (4) Order and Payment Follow-up, which involves initiating follow-up on all outstanding orders or payments that are not received by the requested delivery date. The noncritical element, Procurement Reports and Files, includes maintaining purchase order status files and gathering and submitting "tear sheets." See Joint Exhibits C, D, and E.(2)
For the period from October 1, 1987, to September 30, 1988, Lesch rated Roach as Fully Successful on elements 1, 3, and 5, and Exceeds Fully Successful on elements 2 and 4. Accordingly, consistent with Agency guidelines, Lesch rated Roach's performance for that period as Fully Successful. For the period from October 1, 1988, to September 30, 1989, Lesch rated Roach as Fully Successful on elements 1 and 3, and Exceeds Fully Successful on elements 2, 4, and 5. Accordingly, consistent with Agency guidelines, Lesch rated Roach's performance for that period as Superior. See id. Caswell approved the rating, despite the fact that she had received some complaints from supervisors or department heads about Roach's work. See Transcript at 179-80. Lesch supervised Roach from October 1, 1989, until sometime in January of 1990, when Lesch was transferred to another, nearby part of the Forest. Although Lesch supervised Roach for more than 90 days of her 1989-90 performance period, Lesch did not provide any input, and management made no attempt to gain her input, on Roach's performance during that portion of her 1989-90 performance period.
During her 1988-89 performance period, Roach was a Union steward at the Center. The parties' agreement provides in part for management to grant "'reasonable amounts'" of official time and permits management to "delay [its] release only 'due to work-related reasons . . . .'" Judge's Decision at 3 n.3. In that year-long period, Roach used between 20 and 50 hours of official time for representational activities and filed approximately five grievances or unfair labor practice charges. In January of 1990, Roach was elected the Vice President of the Union and, as a result, was responsible for Union activity concerning bargaining unit employees throughout the Forest. In that capacity, Roach filed or participated in approximately thirty grievances and unfair labor practice charges against the Respondent, including grievances and unfair labor practice charges which referenced Henry.(3) From January of 1990 to October 1, 1990, Roach used approximately 580 hours of official time to conduct representational activities. Although Roach sought guidance on her procurement duties from Caswell, she usually cleared her official time requests with Henry.
The Respondent does not dispute that, despite having spent approximately 28% of her time during 1989-90 on official time, as opposed to approximately 2% of her time in 1988-89, Roach performed basically the same amount of work in 1989-90. See Respondent's Post-Hearing Brief at 2.
In March of 1990, prior to Henry's selection as supervisor, Caswell conducted a mid-year review of Roach's performance and stated that she "had nothing to go on" to indicate that Roach's performance was not as good as it had been the year before and that problems with Roach's performance "w[ere] not surfacing at that time." Transcript at 185, 199. Nevertheless, during that review, Caswell modified part of critical element 3 to require Roach to forward vouchers to the supervisor's office monthly rather than weekly and part of noncritical element 5 to delete Roach's "tear sheet" responsibilities. Joint Exhibit C.
The record does not indicate whether Roach needed, or was given, any further assistance with her duties prior to June 30, 1990. The program year for purchasing items at the Center ends on June 30. If funds for a particular year are not allocated by June 30 of that year, they are lost. At the end of June and the beginning of July of 1990, Caswell and Henry learned through complaints from other supervisors that Roach was having problems meeting requisition deadlines and that, as a result, some funds for the program year were lost. Subsequently, Caswell presented Roach with a letter dated July 6, 1990, stating in part that "[d]ue to the Center[']s needs and the beginning of a New Program Year, the procurement activity has been questioned." Respondent's Exhibit 2. The letter further stated that Caswell and others had gone through Roach's current requisitions and had prioritized them for her, and that if Roach needed typing assistance, she was to let Henry or Caswell know. See id. Henry acknowledged that after Caswell developed the priority system, Roach met required deadlines, and Henry did not receive as many complaints about Roach's requisition work. See Transcript at 236.
In "August or early September [of 1990,] Henry pencilled in a rough draft of her evaluation of Roach." Judge's Decision at 7. On critical element 1, Small Purchasing, Henry noted in part that "the Center staff frequently complained [that] they were not getting items as quickly as they needed them, even when they were priority" and "suggested a [fully] successful rating." Id. On critical element 2, Imprest Fund Cashier, Henry "noted that Roach 'never' had adequate money on hand" but suggested a rating of Fully Successful. Id. At the hearing, Henry "conceded her strong language was hyperbole." Id. On critical element 3, Henry noted in part that Roach "did not always get [vouchers] out on a weekly basis" and recommended a rating of Fully Successful. Id. (4) On critical element 4, Order and Payment Follow-Up, Henry noted little activity involving this element and recommended a rating of Fully Successful. On noncritical element 5, Procurement Reports and Files, "Henry's remarks were all favorable and the rating was 'exceeds.'" Id. Prior to Caswell's transfer in September of 1990, Henry submitted her recommendations for Caswell's approval, and Caswell approved the recommended rating of Fully Successful.
According to Roach, sometime during August or September of 1990, Henry stated to Roach that she "was using an awful lot of official time and it was affecting [her] timeliness on getting procurement out . . . ." Id. at 4-5. Henry denied ever saying that Roach's use of official time was affecting her performance. Roach further testified that on several occasions, Caswell said that Roach "was spending an awful lot of time on official time and it was affecting her procurement." Id. at 5. Caswell "denied that she had ever stated that Roach's 'official time usage would affect her performance.'" Id.
On October 1, 1990, Roach received her performance rating from Henry for the period from October 1, 1989, to September 30, 1990. Roach was rated Fully Successful on critical elements 1, 2, 3, and 4, and Exceeds Fully Successful on noncritical element 5, for an overall rating of Fully Successful. Roach stated to Henry that she disagreed with the rating and contended that she had accomplished the same amount of work as she had during her 1988-89 performance period but in less time. Roach maintained that the only real explanation offered by Henry was that she had a different supervisor this year. On the other hand, Henry stated that she talked with Roach about the elements and ratings given and informed Roach that she did not compare the amount of work for the 2 years, but based her rating on "timeliness, accuracy, [and] deadlines[.]" Id. at 8. The Judge found that "both accounts [were] largely true" but that the "bottom line explanation was that the two supervisors saw things differently in the different years." Id. at 8 n.5. Roach and Henry met again to discuss Roach's performance rating and Henry reaffirmed her original decision. Following her second meeting with Henry, Roach attached to her performance appraisal a memorandum dated October 15, 1990. The memorandum stated in essence that Roach refused to sign her appraisal because it was based on discrimination for Roach's Union involvement, as indicated by Henry's and Caswell's comments that Roach was "'spending so much time on [U]nion work that it might affect [her] performance.'" Id. at 8 (quoting Joint Exhibit C).
In Caswell's absence, Henry had Center Director Young sign the finalized rating. Subsequently, Roach filed the instant unfair labor practice charge.
III. Administrative Law Judge's Decision
The Judge found that the Respondent did not violate the Statute as alleged.
As a preliminary matter, the Judge examined whether the issue of accommodation to Roach's extensive use of official time was raised or fully litigated. The Judge found that to the extent that the General Counsel was alleging that the Respondent violated the Statute by failing to accommodate Roach, that allegation was not clearly pleaded or fully litigated. In this regard, the Judge found that "neither the pleadings, the [General Counsel's] opening statement, nor any statement or amendment thereafter voluntarily  served to put [the] Respondent on notice that it was charged with a failure to accommodate." Judge's Decision at 9-10. The Judge noted that although the Respondent did not object to testimony elicited by the General Counsel on accommodation, the Respondent's representatives "did not join issue and defend against any claimed violation based on failure of accommodation" and "did not appreciate what was at issue until after the fact." Id. at 9. In these circumstances, the Judge recommended that "the Authority not consider the issue of accommodation, on the ground [that] it is not ready or ripe for the careful adjudication it requires." Id. at 10.
The Judge next examined whether Henry's and Caswell's alleged statements to Roach interfered with, restrained, or coerced Roach in the exercise of her protected rights in violation of section 7116(a)(1) of the Statute. The Judge noted Roach's testimony that approximately a month before receiving her performance rating, Henry said something to the effect that Roach was "using an awful lot of official time and it was affecting [her] timeliness on getting procurement out . . . ." Id. at 12. The Judge further noted Roach's testimony concerning several similar but undated statements made by Caswell. The Judge also noted that Henry and Caswell denied making statements that were "threat[s] to lower [Roach's] performance rating because of declining performance tied to protected activities." Id. In evaluating the witnesses' testimony, the Judge found that "[a]ll three struck [him] as being truthful in recounting their recollections." Id.
The Judge studied the circumstances surrounding Roach's increased use of official time and her job performance. The Judge found that Roach was asked to inform her supervisors "if she got behind" but that "on some occasion when Roach indicated she was behind, she was told to do the best she could." Id. However, the Judge further found that Caswell "sought to help[,]" that typing and filing assistance was provided to Roach, and that "on some occasions at least, [Roach] was unenthusiastic about acknowledging the need for help as well as accepting it . . . ." Id. The Judge concluded that in these circumstances, "[o]bservations about the impact of official time usage on one's job performance . . . ought not be taken by a reasonable person as threatening" because "[t]hey are in fact a necessary ingredient of accommodation." Id. The Judge further concluded that there was an "absence [in the record] of any evidence that [the] Respondent was hostile to Roach because she held Union office or because it believed she spent excessive time on representational matters." Id. at 13. The Judge concluded "that the statements at issue, if ever made in such form," did not violate section 7116(a)(1) of the Statute. Id. (citing Veterans Administration Medical Center, Leavenworth, Kansas, 31 FLRA 1161 (1988) (VAMC); Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA 761 (1985) (Scott Air Force Base), review denied mem. sub nom. National Association of Government Employees v. FLRA, 806 F.2d 283 (1986)).
Moreover, with respect to the statements attributed to Caswell, the Judge recommended that the Authority dismiss that allegation because "it was not alleged in the [c]omplaint and not promptly amended  at the hearing, but rather at the close of it." Id.
The Judge next examined whether the Respondent violated section 7116(a)(1) and (2) of the Statute by lowering Roach's performance rating from "superior" to "fully successful." The Judge reiterated his finding that "there is here no persuasive evidence of Union animus" as the "record is incontestably devoid of any unambiguous expression of hostility to Roach based on Union office or activity." Id. Further, the Judge found that Roach's rating of "superior" for 1988-89 "was arguably suspect as tainted by friendship[,]" and that, based on Roach's ratings of "fully successful" on her appraisals over the years, "the challenged appraisal did not depart from a consistent superior level of performance." Id. at 13-14. The Judge noted that Roach's status as a Union steward in 1988-89 "was no obstacle to elevation of her appraisal to superior." Id. at 14. The Judge then examined Roach's performance for 1989-90 and found that Roach "encountered increasing difficulty in getting her filing and typing done in [a] timely fashion as well as her other procurement activity" and that,"[i]n consequence[,] funds were lost because of failure to obligate them before the Program Year ended." Id. The Judge further found that "at least some assistance was made available to Roach, though there is no way to measure its adequacy in terms of her needs if a fair accommodation was to be found." Id. at 13. Nevertheless, the Judge stated that he could not conclude that "her appraisal was so transparently off base as to warrant the conclusion that Roach's protected activity was a 'motivating factor'" in the Respondent's decision to rate her performance for 1989-90 as Fully Successful. Id. at 14. Accordingly, the Judge concluded that the "General Counsel has not made out a prima facie case under [Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny)]." Id.
Finally, in the event that the Authority did not follow his recommendation that the issue of accommodation was not ready to be considered, the Judge examined whether the Respondent failed to accommodate Roach and found that "[f]or reasons discussed in connection with the allegedly violative statements and retaliatory appraisal," the General Counsel has not established that the Respondent failed to accommodate Roach in violation of the Statute. Id. The Judge noted that Roach was provided with assistance but that "[w]hether it was adequate we do not know . . . ." Id. Nevertheless, the Judge found that "it has not been shown that [Roach] was given less help than she needed and then was judged as if she had all that an appropriate accommodation would require." Id.
Having found that the Respondent did not violate the Statute, the Judge recommended that the complaint be dismissed.
IV. Position of the General Counsel
The General Counsel argues that the Judge erred in concluding that he could not consider the issue of accommodation because the "'issue of accommodation' could not [be] or had not been alleged within the context of a § 7116(a)(2) allegation." Brief to Exceptions at 10. The General Counsel argues that the Respondent was aware that the section 7116(a)(2) allegation concerned the effect of Roach's official time use on her overall rating and that "[i]nherent in the context of the § 7116(a)(2) allegation in this case" is "whether the Respondent's failure to accommodate [Roach's Union] activity in formulating her overall performance rating affected the rating." Id. at 10-11. According to the General Counsel, the General Counsel must prove that Roach's increased protected activity was a motivating factor in the Respondent's decision to lower her rating and accommodation "may be one type of defense which an agency respondent may use to show it had legitimate reasons for its alleged discriminatory actions." Id. at 12. As the Authority applies "liberal pleading guidelines" and "the prosecutor need not plead a defense in its complaint," the General Counsel maintains that the Judge erred in finding that the General Counsel should have included the issue of accommodation in its complaint. Id.
On the merits, the General Counsel excepts to the Judge's conclusion that the Respondent did not violate section 7116(a)(1) of the Statute. In this regard, the General Counsel argues that both Caswell's and Henry's statements "could have reasonably led Roach to believe that, if she did not decrease her use of official time to conduct Union business, her performance and, ultimately, her rating would suffer." Id. at 23. The General Counsel maintains that the Respondent "made no substantive attempt to accommodate Roach's increased use of official time" because "her supervisors offered no assistance with her duties that were encompassed in her critical performance elements." Id. The General Counsel distinguishes VAMC and Scott Air Force Base, relied on by the Judge, because, unlike those cases, there is evidence of Union animus on the part of the Center Director in this case and, shortly after the statements in the instant case were made, the Respondent "carried through with its veiled threat by lowering [Roach's] rating." Id.
The General Counsel also excepts to the Judge's conclusion that the Respondent did not violate section 7116(a)(1) and (2) of the Statute. The General Counsel argues that it established a prima facie case of discrimination under Letterkenny by showing that Caswell and Henry made negative statements about Roach's use of official time, that "[U]nion animus was prevalent at the Center," and that "the Respondent lowered Roach's performance rating based upon her Union activities." Id. at 25 (emphasis omitted). The General Counsel further argues that the "record evidence does not establish any legitimate, work-related reasons for [the] Respondent's actions." Id. at 27. In this regard, the General Counsel disputes the Respondent's reliance on alleged complaints about Roach's work from other Center personnel because no direct evidence or testimony was offered to substantiate the complaints and Henry did not cite such complaints to Roach when she explained her reasons for lowering Roach's performance rating. Moreover, the General Counsel "doubt[s] . . . the sincerity of the Respondent's alleged efforts to accommodate Roach's increased use of official time" in view of the fact that "[t]here is no testimony that the Respondent provided Roach with any assistance with her critical duties . . . ." Id. at 26 (emphasis in original). In these circumstances, the General Counsel maintains that the Respondent's reasons for lowering Roach's performance rating were pretextual and, therefore, that the Respondent violated section 7116(a)(1) and (2) of the Statute.(5)
V. Analysis and Conclusions
A. Preliminary Matters
The General Counsel excepts to the Judge's failure to find that the Respondent violated section 7116(a)(1) of the Statute when Caswell told Roach "that she was using a lot of official time, and that it was affecting her job as Procurement Agent." Brief to Exceptions at 19. The Authority will not review allegations that are not encompassed by the complaint. See IRS, 44 FLRA at 1313; U.S. Department of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154, 173-74 (1991). The complaint does not allege that Caswell made statements to Roach in violation of the Statute. We found above that the Judge acted within his discretion when he denied the General Counsel's motion to amend the complaint to include statements allegedly made by Caswell. Accordingly, as the complaint does not encompass the General Counsel's allegation, we deny the General Counsel's exception in this regard.
B. Section 7116(a)(1) of the Statute
The standard for determining whether management's statement or conduct violates section 7116(a)(1) of the Statute is an objective one. The question is whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. For example, Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 895 (1990) (Ogden Air Logistics Center). In order to find a violation of section 7116(a)(1), it is not necessary to find other unfair labor practices or to demonstrate union animus. Id. at 895-96. Although the circumstances surrounding the making of the statement are taken into consideration, the standard is not based on the subjective perceptions of the employee or the intent of the employer. Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 956, 962 (1990) (Scott Air Force Base).
Roach testified that in August or September of 1990, Henry "said 'something to the effect that I was using an awful lot of official time and it was affecting my timeliness on getting procurement out . . . .'" Judge's Decision at 4-5. Roach also testified that Caswell made similar statements. Roach documented this in her letter to Henry dated October 15, 1990.(6) Henry "denied ever saying that Roach's use of official time was affecting her performance." Id. at 5. Caswell similarly denied making any such statements.
The Judge noted Roach's testimony regarding statements allegedly made by Henry and Caswell. The Judge also noted Henry and Caswell's denials. In evaluating the witnesses' testimony, the Judge found that "[a]ll three struck [him] as being truthful in recounting their recollections." Id. at 12. However, the Judge found that some attempts at resolving the "conflict between management's right (obligation) to see that the [G]overnment[']s work is effectively done, and the Union's right to discharge its representational duties" had been made and concluded that "the statements at issue, if ever made in such form," did not violate section 7116(a)(1) of the Statute. Id. at 13.
We are unable to determine from the Judge's decision whether the Judge found that Henry actually made the statement alleged in the complaint and, if so, under what circumstances. We note the Judge's finding that the General Counsel did not properly raise the issue of accommodation to Roach's extensive use of official time and that the issue of accommodation was "not ready or ripe for the careful adjudication it requires." Judge's Decision at 10. In reaching this conclusion, the Judge found that the General Counsel's pleadings, opening statement, and amended complaint did not put the Respondent "on notice that it was charged with a failure to accommodate." Id.
The General Counsel "acknowledges it did not specifically allege 'accommodation' as an issue in the amended complaint," but argues that accommodation is a defense that must be raised by a respondent. Exceptions at 12. We agree that the issue of accommodation is a defense that may be raised by a respondent. See, for example, Ogden Air Logistics Center and Scott Air Force Base (where the Authority evaluated respondents' defenses that statements made to employees were an accommodation between management's rights and employees' protected activity and, therefore, did not violate section 7116(a)(1) of the Statute). In fact, the Respondent in this case argued before the Judge that "[a]ccommodation was provided to Roach . . . ." Respondent's Post-Hearing Brief at 2. Therefore, even though the General Counsel did not allege a violation based on the Respondent's failure to accommodate Roach's protected rights and management's rights, we find that the Judge was not prevented from considering the Respondent's defense in this regard. However, we find that the record is insufficient to determine whether Henry's statement, if made as alleged, was made in the context of an attempt by Henry to reach such an accommodation. Therefore, we are unable to determine on the record before us whether the Respondent violated section 7116(a)(1) of the Statute as alleged in the complaint.
Accordingly, for the reasons stated above, we remand the complaint to the Judge for findings necessary to resolve whether the Respondent violated section 7116(a)(1) of the Statute.
C. Section 7116(a)(2) of the Statute
Section 7116(a)(2) of the Statute provides that it is an unfair labor practice for an agency to encourage or discourage membership in a union by discrimination in connection with hiring, tenure, promotion, or other conditions of employment. The Authority has stated that the framework in Letterkenny will be applied to cases of alleged discrimination under section 7116(a)(2). Letterkenny, 35 FLRA at 117. In Letterkenny, we reaffirmed that:
[i]n all cases of alleged discrimination, . . . the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment.
Id. at 118.
If the General Counsel makes the required prima facie showing, a respondent may seek to establish the affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. Id. at 123.
The parties do not dispute that Roach engaged in protected activity and that management was aware of that activity. Therefore, it must be determined whether the Respondent's decision to lower Roach's performance rating for 1989-90 was motivated by her protected activity. In this regard, it is necessary to determine whether in August or September of 1990, Henry actually told Roach that she was "using an awful lot of official time and [that] it was affecting [her] timeliness on getting procurement out[,]" and, if so, under what circumstances. Judge's Decision at 4-5. If Henry made such a statement, then it would be necessary to determine whether the statement, its surrounding circumstances, and any other evidence offered by the General Counsel establish a prima facie case of discrimination under Letterkenny. However, we are unable to make any determination regarding this issue because,