48:1098(120)CA - - EEOC, Sas Diego Area, San Diego, CA and AFGE, Local 3230 - - 1993 FLRAdec CA - - v48 p1098



[ v48 p1098 ]
48:1098(120)CA
The decision of the Authority follows:


48 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

SAN DIEGO AREA

SAN DIEGO, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3230, AFL-CIO

(Charging Party)

98-CA-10517

_____

DECISION AND ORDER

December 13, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding, as relevant here,(1) that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by making unlawful statements, through its San Diego Area Director, regarding employee participation in activities protected under the Statute. The Respondent filed exceptions to the Judge's decision. The Charging Party did not file an opposition to the exceptions.

As a preliminary matter, we reject the Respondent's claim that the complaint is not sufficiently related to the amended charge. As long as the allegations in a complaint bear a relationship to the charge and are closely related to the events complained of in the charge, and the issuance and content of the complaint comply with Authority Regulations, the complaint is valid. See Letterkenny Army Depot, 34 FLRA 606, 610 (1990). We conclude that the allegations of unlawful statements contained in the complaint are reasonably related to the allegations of harassment, intimidation, and verbal abuse contained in the amended charge.

We also reject the Respondent's claim that the Judge's findings were based on allegations not contained in the complaint. Section 2423.12 of the Authority's Rules and Regulations requires that a complaint include a clear description of the acts which are claimed to constitute the alleged unfair labor practice, including, when known, the approximate dates and places of such acts and the names of the respondent's representatives who committed the acts. In our view, the complaint is sufficiently broad to include those statements found by the Judge to violate section 7116(a)(1) of the Statute.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings that the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(2)

II. 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 Equal Employment

Opportunity Commission, San Diego Area, San Diego, California, shall:

1. Cease and desist from:

        (a) Making statements to employees which interfere with, restrain, or coerce them in the exercise of their rights under the Statute.

        (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) Post at all facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 3230, AFL-CIO are located, 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 Director, Equal Employment Opportunity Commission, San Diego Area, San Diego, California, 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 ensure that such notices are not altered, defaced, or covered by any other material.

        (b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director,

San Francisco Regional Office, Federal Labor Relations Authority, within 30 days from the date of this Order as to what steps have been taken to comply.

IT IS FURTHER ORDERED that the remaining allegations of the complaint be dismissed.

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 make statements to employees which interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

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.

_________________________________ (Agency)

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 its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.




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

1. In the absence of exceptions to the Judge's recommended dismissal of the other allegations in the complaint, we adopt the Judge's recommendation to dismiss those allegations, for the reasons he stated.

2. In part, the Respondent's exceptions dispute the Judge's credibility determinations. It is well established that the Authority will not overrule a judge's credibility determinations unless a clear preponderance of all relevant evidence demonstrates that the determinations are incorrect. We have examined the record in this case and find no basis for reversing the Judge's credibility findings. See Food and Drug Administration, Mid-Atlantic Region, Philadelphia, Pennsylvania, 48 FLRA 424, 439-40 (1993).



UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424

. . . . . . . . . . . . . . . . .

.

EQUAL EMPLOYMENT OPPORTUNITY .
COMMISSION, SAN DIEGO AREA, .
SAN DIEGO, CALIFORNIA
Respondent .

and                                                                                  Case No. 98-CA-10517

AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES, 
LOCAL 3230, AFL-CIO
Charging Party .

Cassandra M. Menoken
Counsel for the Respondent

Ernesto Padilla
Representative of the Charging Party

R. Timothy Sheils
Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), by making unlawful statements, through supervisors, regarding participation in protected activities. The complaint also alleges that Respondent violated section 7116(a)(1) and (2) of the Statute by refusing to promote an employee and issuing the employee a letter of counselling because of the employee's participation in protected activity.

Respondent's answer denied any violation of the Statute.

A hearing was held in San Diego, California. The parties were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs, and the Respondent filed a reply brief. The proposed findings have been adopted where found material and supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

 

Findings of Fact

 

1. Alleged March 11, 1991 Statement

The complaint alleges that on March 11, 1991 Respondent, through Pat Matarazzo, San Diego Area Director, "told an employee that employees would not be separated from government service if they did not seek the assistance of the Union."

The General Counsel presented no witness to testify to precisely this alleged statement. However, I credit portions of the testimony of employees Juanita Contreras, Carmen Ortiz, and Joyce Cooper in this regard. A composite of their testimony reflects that the day after Matarazzo arrived in San Diego, Contreras, Ortiz, and Cooper dropped by his office to welcome him. In the course of the conversation, Matarazzo referred to a former union official who had worked for him in New York, saying that if this employee had not fought Matarazzo he would not have been fired. Matarazzo indicated that he would not forget it if an employee challenged him or fought him, by filing complaints with his superiors or the union, and would be keeping a list in his desk of employees who did this.

2. Alleged June 1991 Statement

The complaint alleges that in June 1991, Respondent, through Charles Gorham, Supervisor, San Diego Area Office, "told an employee that actions, including closer scrutiny of her work, would not have been taken against the employee if the employee had not filed a grievance."

Juanita Contreras testified to substantially this statement (Tr. 126, 151). However, I credit the testimony of Respondent's witnesses, including Supervisor Charles H. Gorham, District Director Dorothy Porter, and Jerry Jensen concerning Ms. Contreras' performance, her attitude toward supervision, and the discussions concerning her performance, and find, under all the circumstances, that the statement was not made.

3. August 7, 1991 Memorandum of Counselling

The complaint alleges that on August 7, 1991 Respondent issued Contreras a Memorandum of Counselling because Contreras engaged in protected activity.

On May 20, 1991 a grievance was filed on behalf of the employees in Respondent's San Diego office. The grievance alleged that Area Director Matarazzo had made various comments which adversely affected the "quality of work life in the San Diego Area Office . . . ." Contreras was one of the employees who made allegations which formed the substance of the grievance. She, along with two other investigators, Ortiz and Cooper, later objected to a proposed settlement of the grievance and obtained a different union representative to handle the grievance.

On August 7, 1991 Juanita Contreras was issued a counselling memorandum because of her disrespectful conduct toward her supervisor. At trial, Ms. Contreras denied having been disrespectful to Mr. Gorham and, indeed, denied having ever been disrespectful to any supervisor. Yet, the encounter described by Mr. Gorham in the counselling memorandum in question is remarkably similar to Acting Director Jensen's description of an encounter that he had with Ms. Contreras in 1990. Both Mr. Jensen and Mr. Gorham testified to what was perceived as Ms. Contreras' irrational response to something they had said or done. Both described incidents in which Ms. Contreras angrily confronted them at a time when they were trying to leave the office. Both also described how Ms. Contreras disregarded their need to leave the office and demanded that her concerns be immediately addressed.

The only difference between the two incidents is that, in Mr. Gorham's encounter, Ms. Contreras' behavior included name calling. I find that the August 7, 1991 counselling memoran-dum was directly related to Ms. Contreras' disrespectful conduct on July 24, 1991.

The General Counsel points out that three other employees engaged in similar acts of disrespect which did not result in documentation of any kind. I agree with Counsel for Respondent's observation that these instances are not that significant or similar since the evidence shows that Ms. Contreras engaged in such behavior on at least two occasions prior to July 24th and subsequent to the filing of the May 20th grievance, also without formal documentation being imposed until this incident arose.

4. Failure to Promote

The complaint alleges that since May 20, 1991 Respondent has failed and refused to promote Juanita Contreras to a career ladder GS-11 investigator position because Contreras engaged in protected activity (described above).

District Director Dorothy Porter was the EEOC official who made the decision to deny Juanita Contreras a career ladder promotion to the GS-11 level in May 1991. She relied on the assessment of previous San Diego acting directors and her own general observations. She did not rely heavily on San Diego Area Director Matarazzo's observations as he had been there too short a time.

At about the same time, Dr. Porter decided to give Susan Ellis a GS-11 promotion on the basis that Ellis had made marked improvement in progress and development, had handled difficult cases, and met time frames. Acting San Diego Director Jensen had previously commended Ms. Ellis during his four month tour for "performing admirably." There were no issues raised in the complaint or at trial concerning union animus or retaliation on the part of Dr. Porter.

A separate decision to deny Ms. Contreras a promotion was made on August 22, 1991 by Supervisor Charles Gorham in consultation with Dr. Porter and Mr. Matarazzo.

The decisions in May and August 1991 to deny Ms. Contreras a promotion were based on legitimate concerns relating to her work performance. Dr. Porter testified that, in May 1991, she considered Ms. Contreras' failure to meet time frames, the age of her cases, and had concerns about her ability to perform at a higher level.

Documentary evidence of record establishes that, during the months of April and May of 1991, Ms. Contreras had the highest percentage of missed time frames of all of the investigators in the San Diego office. (Respondent's Ex. 12.) In a memorandum to Dr. Porter, written approximately nine months earlier by former San Diego Acting Director, Jerry Jensen, Ms. Contreras was described as "probably the weakest member of the investigative team" in that office. (Re-spondent's Ex. 6; Tr. 482-483.) Significantly, Mr. Jensen's July 25, 1990 memorandum reflects observations, relating to Ms. Contreras' work performance, which were made during the year in which she met the time-in-grade requirement for career-ladder promotion purposes. It is also significant that Mr. Jensen's observations, regarding Ms. Contreras, long preceded the protected activity described in the complaint at issue in this matter. Indeed, the record establishes that the decision to deny Ms. Contreras' promotion in May 1991 was made prior to May 20, 1991, the date that the Union filed a grievance against Mr. Matarazzo on behalf of the San Diego Area Office employees and prior to June 13, 1991, the date that Ms. Contreras indicated her unwillingness to accept the proposed settlement of that grievance. Moreover, Ms. Contreras was not a Union official at the time that her promotion was denied in May 1991. Respondent's initial denial of promotion, therefore, could not have been influenced by her status in the Union or her participation in the May 20, 1991 grievance.

With regard to the decision to deny Ms. Contreras a promotion in August 1991, the record establishes that Respondent's legitimate concerns regarding her performance continued to persist. Charles Gorham testified that, at the time of Ms. Contreras' August 1, 1991 inquiry into the status of her promotion, he noted that she had missed more than 50 percent of her deadlines in July and approximately 80 percent of her deadlines in June of that year. (Tr. 518.) In an August 7, 1991 memorandum to Ms. Contreras, Mr. Gorham referenced, among other things, several areas of concern regarding her performance which he had attempted to discuss with her on July 24, 1991. He noted, for example, that 64.2 per cent of Ms. Contreras' charge assignments were over 270 days old and that her average charge processing time was 398 days. (G.C. Ex. 12). Following Mr. Gorham's denial of Ms. Contreras' promotion in August, Contreras refused to cooperate in Gorham's efforts to work out a plan whereby he could provide her the additional assistance she needed in order to improve her overall performance. Contreras has been under the supervision of a different supervisor since January 1992.

It is clear that Respondent had legitimate concerns with regard to the adequacy of Ms. Contreras' work performance during the relevant period. The record supports a finding that the decisions to deny her promotion in May and August of 1991 were directly related to those concerns.

Additional Findings, Discussion,

and Conclusions

The Statement

The standard for determining whether a statement violates section 7116(a)(1) is whether, under the circumstances, the statement tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive influence. Marine Corps Logistics Base, Barstow, California, 33 FLRA 626 (1988). The standard is an objective one, not based on the subjective perceptions of the employee, or the intent of the employer. Department of the Army, HQ, Washington, D.C. and U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, 29 FLRA 1110 (1987).

Mr. Matarazzo clearly indicated to Ms. Contreras, Ms. Ortiz, and Ms. Cooper that there would be adverse consequences for any employee who "fought him" by going to the union for assistance, telling them that he would be keeping a list of such employees. He explicitly linked adverse consequences to union activity by referring to the firing of a New York employee who had been active in the union. I conclude that such a statement would tend to coerce or intimidate the employees in the exercise of their rights under the Statute and violated section 7116(a)(1) of the Statute.

As noted above, I found that the alleged statement by Supervisor Charles Gorham was not made. Accordingly, Respondent did not violate the Statute in this respect as alleged.

Discrimination - Counselling Letter -

Failure to Promote

The General Counsel contends that Respondent violated section 7116(a)(1) and (2) in two separate respects by issuing a letter of counselling and refusing to promote Juanita Contreras to the GS-11 level in retaliation for Contreras having engaged in protected union activity.

Section 7116(a)(2) of the Statute provides that it is an unfair labor practice for an agency "to encourage or dis-courage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment[.]" Under the analytical framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990), in determining whether the Respondent violated section 7116(a)(2) of the Statute, the General Counsel must establish that the employee against whom the alleged discriminatory action was taken was engaged in protected activity and that consideration of such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118. If the General Counsel makes this required prima facie showing, the respondent may seek to establish, by a preponderance of the evidence, that there was a legitimate justification for its action and the same action would have been taken even in the absence of the consideration of protected activity. Id.

In support of its position, the General Counsel points to the statement of Matarazzo, as has been found to have occurred, and the statement of Gorham, which I have found did not take place. As additional indirect evidence of union animus, the General Counsel relies on evidence that, after Contreras, Ortiz, and Cooper became involved in the grievance, they began experiencing changes in the review of their work, a lack of recognition of compliments for their work, and public criticism of their work. The General Counsel also points to (1) the suspicious timing of the questioned conduct, (2) disparate treatment, as allegedly exemplified by Susan Ellis' receiving a promotion and Contreras being the only investigator ever denied a promotion, (3) shifting defenses, in that Gorham's August 22, 1991 memorandum listing the reasons for his decision did not specifically refer to Contreras' poor time frames in processing cases, and (4) the proffered explanation for Respondent's action is pretextual in that Contreras was a perfectly satisfactory employee.

There is no dispute that Contreras, as the source of some of the allegations raised against Mr. Matarazzo in the grievance, was engaged in protected activity and that Respondent was aware of this activity. I agree with the General Counsel that some of the evidence does suggest that consideration of such activity was a motivating factor in connection with the counselling and failure to promote. These are: (1) the statement by Matarazzo, (2) the timing of the questioned conduct, and (3) the experienced changes in the review and criticism of work, although this factor may be accounted for, in part, by routine supervision by their new enforcement supervisor, Charles Gorham, when supervision in the office had previously been somewhat lax.

On the other hand, the remaining factors urged by the General Counsel lack merit. I have credited the testimony of District Director Dorothy Porter and Acting San Diego Director Jerry Jensen over that of Lead Investigator Carmen Ortiz to conclude that Susan Ellis and Contreras were not similarly situated employees. This testimony reveals that the work performance and ability of Susan Ellis to perform at a higher level was superior to that of Contreras. With regard to the shifting defenses argument, I agree with Respondent that there is no marked inconsistency in Respondent's defenses. An investigator's inability to meet reasonably established time frames can adversely affect various duties of an investigator including the necessity to show "initiative and resourcefulness" as mentioned in the August 22, 1991 memorandum. The counselling memorandum of only a few weeks earlier, based on a July 24, 1991 meeting, had also pointed out the number of missed time frames in light of the necessity to process charges "effectively and efficiently."

Contrary to the General Counsel's view, the record does not establish that Contreras was "a perfectly satisfactory employee" in terms of her demonstrated ability to perform at the next higher grade level. Respondent has shown that the decision to deny Contreras a promotion in May and August 1991 were directly related to concern regarding the adequacy of her work performance during the relevant period and that the August 7, 1991 counselling memorandum was issued because of her disrespectful conduct toward her supervisor.

The General Counsel presented some evidence sufficient to support an inference that the employee's protected activity was a motivating factor in the Respondent's decisions to counsel and not promote Contreras. However, based on the entire record in this case, I conclude that the General Counsel failed to prove, by a preponderance of the evidence, that the employee was issued a letter of counselling and did not receive a promotion to GS-11 in violation of the Statute.

Accordingly, the General Counsel has not established that Respondent violated section 7116(a)(1) and (2) of the Statute in this respect as alleged. 410th Combat Support Group, K.I. Sawyer Air Force Base, Michigan, 45 FLRA 755 (1992).

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

 

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, it is hereby ordered that the Equal Employment Opportunity Commission, San Diego Area, San Diego, California, shall:

1. Cease and desist from:

(a) Making statements to employees indicating that employees who file complaints against management through the union will suffer adverse consequences.

(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their 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) Post at its facilities in San Diego 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 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Region, Federal Labor Relations Authority, San Francisco, California in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

3. The remaining allegations in the complaint are dismissed.

Issued, Washington, DC, July 29, 1993

______________________________
GARVIN LEE OLIVER
Administrative Law Judge

 

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 make statements to employees indicating that employees who file complaints against management through the union will suffer adverse consequences.

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

____________________