[ v49 p1020 ]
49:1020(97)CA
The decision of the Authority follows:
49 FLRA No. 97
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF AGRICULTURE
U.S. FOREST SERVICE
FRENCHBURG JOB CORPS
MARIBA, KENTUCKY
(Respondent/Agency)
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 466
(Charging Party/Union)
4-CA-10146
(46 FLRA 1375 (1993))
_____
DECISION AND ORDER
May 18, 1994
_____
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) and (2) 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 making certain statements to the employee.(1) The Judge initially found that the Respondent did not violate the Statute as alleged in the complaint and, therefore, recommended that the complaint be dismissed. In 46 FLRA 1375, the Authority remanded the complaint to the Judge for further findings. On remand, the Judge again found that the Respondent did not violate the Statute as alleged in the complaint and recommended that the complaint be dismissed.
Upon consideration of the Judge's decisions, the General Counsel's exceptions, and the entire record, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (2) as alleged in the complaint.
II. Background
A. Facts
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."(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 overall 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. Caswell approved the rating, despite the fact that she had received some complaints from supervisors or department heads about Roach's work. 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' collective bargaining 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. During the 1988-89 performance period, Roach used between 20 and 50 hours of official time for representational activities and filed approximately five grievances or unfair labor practice charges. However, during Roach's 1989-90 performance period, Union activity and membership at the Center "blossomed." Id. at 3.
In January of 1990, Roach was elected the Vice President of the Union and, as a result, was responsible for representational functions 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. Roach usually cleared her official time requests with Henry.
The Respondent does not dispute that, despite having spent approximately 28 percent of her time during 1989-90 on official time, as opposed to approximately 2 percent of her time in 1988-89, Roach performed basically the same amount of work in 1989-90.(4)
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.
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 not available for use by the Agency. 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 not obligated and, thus, not available for use by the Agency. 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. 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.
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. (5) 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. (6) 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 during the spring or summer of 1990, 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 she believed 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 an unfair labor practice charge, and the General Counsel issued a complaint, alleging that the Respondent violated the Statute by stating in essence to Roach that her use of official time had to affect her performance and by lowering Roach's performance rating because she engaged in protected activity.
The Administrative Law Judge concluded that the Respondent did not violate the Statute as alleged in the complaint. The Judge examined management's allegedly coercive statements to Roach and found that the record did not indicate that the Respondent was hostile to Roach based on her Union office or her time spent on representational matters. Without finding whether any statements were made or, if so, were made in the context of an attempt to accommodate a conflict between management's right to manage efficiently and Roach's right to engage in Union activity, the Judge found that "the statements at issue, if ever made in such form," did not violate section 7116(a)(1) of the Statute. Id. at 13. 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 found that there was "no persuasive evidence of Union animus" and that, based on her previous performance and her performance for 1989-90, the disputed rating was not "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. The Judge concluded that the General Counsel had not established a prima facie case of discrimination under Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) and, thus, that the Respondent did not violate section 7116(a)(1) and (2) of the Statute.
B. Decision in 46 FLRA 1375
With respect to the allegation that the Respondent violated section 7116(a)(1) of the Statute, the Authority found that it was unable to determine from the Judge's decision or the record whether Henry actually made any statement as alleged in the complaint and, if so, whether the statement was made in an attempt to accommodate a conflict between management's right to manage efficiently and the employee's right to engage in protected activity.(7) Because resolving the issue of whether management violated section 7116(a)(1) of the Statute depended on whether Henry made the statement and, if so, under what circumstances, and because the Authority was unable to decide those issues, the Authority remanded the complaint to the Judge for findings necessary to resolve whether the Respondent violated section 7116(a)(1) of the Statute.
With respect to the allegation that the Respondent violated section 7116(a)(2) of the Statute, the Authority examined whether, consistent with Letterkenny, the Respondent's decision to lower Roach's performance rating was motivated by her protected activity. To decide this issue, the Authority found that it was 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." 46 FLRA at 1387 (quoting Judge's Decision at 4-5). The Authority further found that 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 established a prima facie case of discrimination under Letterkenny. However, the Authority found that it was unable to decide this issue because it was unable to determine whether Henry made the statement as alleged. Accordingly, the Authority remanded the complaint to the Judge for findings necessary to resolve whether Henry made the statement as alleged. Further, the Authority stated that if the Judge found that the statement was made as alleged, the Judge was to apply the standard articulated in Letterkenny to determine whether the Respondent violated section 7116(a)(2) of the Statute.
C. Administrative Law Judge's Decision on Remand
1. Credibility Determinations
On remand, the Judge stated that he was attempting to "provide a full accounting of [his] method in making the credibility resolution[s] . . ." Judge's Decision on Remand at 5. In making the necessary credibility findings, the Judge noted that he "did not find demeanor helpful." Id. The Judge reexamined the record and concluded that Roach was "an unreliable witness, and [that he] would credit Caswell or Henry where their stories conflict." Id. at 6.
2. Factual Findings
The Judge found that "Henry did say 'words to the effect' to Roach that she was using official time at a rate which was affecting her ability to get her procurement work done in timely fashion." Id. The Judge further found that "no direct evidence about the context of the statement was offered by Roach" or by the supervisors. Id. Despite this latter finding, the Judge determined that a statement "linking official time usage to a lack of timeliness in getting her work done" was "made in the benign context of an offer of assistance made by either or both of [Roach's] supervisors." Id. The Judge also determined that "words making the same link were uttered by Henry in explanation of her refusal to approve several official time requests" and that there was "no evidence that such words were contemporaneously accompanied by offers of assistance." Id. at 6-7. The Judge noted that Roach testified that such a statement was made in August or September of 1990. The Judge found, however, that "even though there is no other statement about its timing[,]" he "think[s] it likely such conversations occurred in June or early July, when Roach's problems were surfacing and most serious." Id. at 7 n.5.
3. Legal Conclusions
Having found that Henry made a statement to Roach linking Roach's official time use to her lack of timeliness in getting her work done and that the statement was not made in an attempt to offer assistance to Roach, the Judge examined whether the statement violated section 7116(a)(1) of the Statute. The Judge stated that the question was "whether the statement that the use of further official time was being disapproved because such use was already preventing timely processing of requisitions[] carried with it a threat of negative career consequences for Roach." Id. at 9. The Judge determined that he saw "no reason why a supervisor risks a finding that she intimidates or coerces a subordinate when she refuses to approve a request for official time on the express ground that the employee is already behind in the timely completion of certain work because of official time usage" and that he saw "no threat of a low performance rating in such an explanation[.]" Id. at 7. The Judge found that no inference of negative career consequences could properly be drawn from such an observation by a supervisor. According to the Judge, such an observation "is unavoidable if any explanation is offered for a refusal to grant a request for more [official] time." Id. at 9. The Judge stated that this case was distinguishable from Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891 (1990) (Ogden Air Logistics Center) because in this case there were "no words [] used in a way suggesting that protected representational activity would adversely affect [the] rating." Id.
The Judge concluded that "[i]f it is appropriate to infer such a message from the kind of expression here involved, then any discussion concerning the impact of such activity on one's job would be unlawful absent a proffer of help or a disclaimer." Id. Based on the foregoing reasoning, the Judge recommended that the Authority dismiss the allegation in the complaint that the Respondent violated section 7116(a)(1) of the Statute.
The Judge next examined whether the Respondent violated section 7116(a)(2) of the Statute by lowering Roach's performance rating for 1989-90. Applying the standard articulated in Letterkenny, the Judge concluded that there was "no evidence that Roach's protected activity was a motivating factor in the decision of her new supervisor to give her a lower rating" and, therefore, that the General Counsel had failed to establish a prima facie case of discrimination consistent with Letterkenny. Id. at 10. In reaching this conclusion, the Judge found nothing in Henry's statement "suggesting hostility to the Union or towards Roach based on her Union activity." Id. The Judge further found that there was "no reason to attach untoward meaning to the timing of [Roach's] appraisal, a matter mandated by law." Id. Having concluded that the General Counsel failed to establish a prima facie case of discrimination, the Judge recommended that the Authority dismiss the allegation in the complaint that the Respondent violated section 7116(a)(2) of the Statute.
III. Position of the General Counsel
The General Counsel argues that there are "glaring inconsistencies" in the Judge's credibility findings in his two decisions. Exceptions at 21. The General Counsel asserts that in light of these inconsistencies, the Authority should "overrule and reject the Judge's credibility findings" in the decision on remand. Id.
On the merits, the General Counsel contends that the Judge erred in finding that Henry's statement did not violate section 7116(a)(1) of the Statute. The General Counsel argues that the statement "reasonably led Roach to believe that her continued use of official time would negatively impact her performance rating." Id. at 14. The General Counsel further argues that the Judge failed to consider that "the statement, given its content and context . . . was a threat[.]" Id. at 15. The General Counsel notes that notwithstanding the Judge's finding that Henry made the statement in June or July of 1990, "Roach testified that it occurred later--closer to Henry's completion of her performance appraisal[.]" Id.
The General Counsel also contends that the Judge erred in finding that the Respondent did not violate section 7116(a)(2) of the Statute when it lowered Roach's performance rating. According to the General Counsel, the record shows that Union animus was prevalent at the Center, management was displeased with Roach's increased Union activity, Henry believed that Roach's involvement in this activity did and would affect Roach's performance, and Henry threatened Roach regarding her use of official time. The General Counsel maintains that in these circumstances Roach's protected activity was a motivating factor in the Respondent's decision to lower her performance rating and, therefore, that the Judge should have found that the General Counsel established a prima facie case of discrimination under Letterkenny. Further, the General Counsel argues that the Respondent did not establish that there was a legitimate justification for the rating within the meaning of Letterkenny. Rather, the General Counsel asserts that the record shows that the Respondent's decision to lower Roach's performance rating was "motivated solely by her protected activity" in violation of section 7116(a)(1) and (2) of the Statute. Id. at 21.
Finally, to remedy the unfair labor practices, the General Counsel requests that the Authority order the Respondent to cease and desist from making coercive statements to employees and discriminating against Roach, rescind Roach's 1989-90 appraisal and properly reappraise her, and provide Roach with any benefits to which she would have been entitled as a result of the reappraisal.
IV. Analysis and Conclusions
For the following reasons, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (2) of the Statute.
A. Preliminary Matters
1. Credibility Determinations
We note the General Counsel's argument that there are "glaring inconsistencies" in the Judge's credibility findings in his two decisions and that in light of these inconsistencies, the Authority should "overrule and reject the Judge's credibility findings" in the decision on remand. Exceptions at 21.
The demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has had the benefit of observing the witnesses while they testified. The Authority will not overrule a judge's credibility determinations unless a clear preponderance of all relevant evidence demonstrates that the determinations are incorrect. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Detroit Teleservice Center, Detroit, Michigan, 42 FLRA 22, 25 (1991). On remand, the Judge did not, and was not required to, hold a second hearing in this case. Rather, as he "did not find demeanor helpful[,]" the Judge made factual and credibility determinations by reexamining the existing record. Judge's Decision on Remand at 5. Some of the Judge's determinations in his decision on remand appear inconsistent with his determinations in his initial decision and his decision on remand. For example, as noted by the General Counsel, the Judge found in his initial decision that Roach was "truthful" in her recollection but concluded in his decision on remand that Roach was an "unreliable witness" whom he would not credit when her recollection conflicted with that of her supervisors. Judge's Decision at 12; Judge's Decision on Remand at 6. However, having stated that he would credit the supervisors' testimony over Roach's, the Judge then credited and "accept[ed] the version [of a statement] offered by Roach," rather than Henry's denial that any statement had been made. Judge's Decision on Remand at 6. As we discuss below, we adopt only those determinations that we find are consistent with the record. See generally United States Customs Service, Region IV, Miami District, Miami, Florida, 36 FLRA 489, 498 n.3 (1990) (the Authority was "unable to credit" testimony that the judge had credited).
2. Findings of Fact
In part II.A. of this decision, we set forth our findings of fact, as stated in 46 FLRA 1375 and as supported by the record. Additionally, except as stated below, we adopt the factual findings of the Judge noted in part II.C.2. of this decision.
B. 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 rebut that showing by establishing, by a preponderance of the evidence, 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 in 1988-89 Roach engaged in protected activity by spending approximately 28 percent of her time on official time, as opposed to 2 percent in 1988-89, that management was aware of that activity, and that Caswell found no problems with Roach's performance at her mid-year review in March of 1990. The parties also do not dispute that, although Roach performed basically the same amount of work during both appraisal periods, Roach received a lower performance rating from Henry in 1989-90 than she did from Lesch in 1988-89.(8)
The first issue is whether the Respondent's decision to lower Roach's performance rating for 1989-90 was motivated by her protected activity. The Judge found that in the course of refusing to approve several official time requests, Henry made a statement to Roach "linking official time usage to a lack of timeliness in getting her work done" and that there was "no evidence that such words were contemporaneously accompanied by offers of assistance." Judge's Decision on Remand at 6-7. According to Roach, the statement was made in August or September of 1990.(9) Henry's statement equated Roach's use of official time with the timeliness of her work. Such a statement, combined with evidence that Henry subsequently lowered Roach's rating based in part on timeliness, demonstrates that Henry directly connected Roach's use of official time, her performance, and ultimately her rating. See Ogden Air Logistics Center, 35 FLRA at 900 (the General Counsel established a prima facie case under Letterkenny by showing that management's statements to the employee "drew a direct connection between protected activity and [the employee's] chances of obtaining a higher performance appraisal").
Moreover, the timing of Henry's statement, near the end of the appraisal period, demonstrates that the statement was made around the same time that the Judge found Henry to have "pencilled in" notes of what turned out to be Roach's performance appraisal and rating for 1989-90. Judge's Decision at 7. The Authority has previously held that the timing of management actions may be significant in determining whether an employee's protected activity was a motivating factor, within the meaning of Letterkenny, in the agency's decision to take action against the employee. See, for example, United States Department of Transportation, Federal Aviation Administration, El Paso, Texas, 39 FLRA 1542, 1552 (1991). In this case, where the employee performed basically the same amount of work in much less time, where no performance problems were found in the first 6 months of the appraisal period, and where the performance rating was determined by the supervisor around the same time as that supervisor made a statement connecting the employee's protected activity with her performance, we find that the timing is significant in demonstrating that the employee's protected activity was a motivating factor in the Respondent's decision to lower her performance rating.
In these circumstances, we find that the General Counsel has established a prima facie case of discrimination under Letterkenny.
We next consider the Respondent's affirmative defenses to determine whether the Respondent established, by a preponderance of the evidence, that it had a legitimate justification for its action and would have taken the same action in the absence of protected activity. Letterkenny, 35 FLRA at 123. The Respondent argued before the Judge that Roach's performance rating was lower in 1989-90 based on timeliness and quality. See Respondent's Post-Hearing Brief at 3. The Respondent filed no further submissions with and made no arguments to the Authority in 46 FLRA 1375 or in the instant case. The record shows that management expressed concerns about the timeliness of Roach's work in June and early July of 1990 and that after Caswell had prioritized Roach's current requisitions, Roach met required deadlines. The record also shows that Caswell, who approved the rating, testified that Roach was not rated in conformity with critical element 1, which involves purchasing and requisitions. We find that the Respondent has not shown what performance standards or elements were applied to evaluate the timeliness of Roach's performance on requisitions and whether, pursuant to those standards, Roach was expected to perform 40 hours of work per week while at the same time spending over one-quarter of her time on approved official time. In these circumstances, and in view of our determination above that the Respondent's asserted concern with the timeliness of Roach's work was linked to Roach's protected activity, we find that the Respondent has not demonstrated that its concern with the timeliness of Roach's work is a legitimate nondiscriminatory reason for lowering Roach's performance rating. Moreover, in the absence of further explanation by the Respondent, we are unable to determine that the Respondent's asserted concern with the quality of Roach's work in 1989-90 was a legitimate justification. Finally, as the Respondent has failed to argue, much less establish, that it would have given Roach the same rating absent consideration of her protected activity, we find that the Respondent has not rebutted the General Counsel's prima facie case of discrimination. Accordingly, consistent with Letterkenny, we find that the Respondent violated section 7116(a)(2) of the Statute by lowering Roach's performance rating for the 1989-90 performance period.
C. 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 would tend to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. For example, Ogden Air Logistics Center, 35 FLRA at 895. 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).
The Judge found that, in the course of refusing to approve several official time requests, Henry made a statement to Roach "linking official time usage to a lack of timeliness in getting her work done" and that there was "no evidence that such words were contemporaneously accompanied by offers of assistance." Judge's Decision on Remand at 6-7. Where management perceives a conflict between its right to manage efficiently and an employee's right to engage in protected activity, management may lawfully seek to accommodate such a conflict. See Veterans Administration Medical Center, Leavenworth, Kansas, 31 FLRA 1161, 1170-71 (1988).
The parties do not dispute that Union activity increased at the Center from 1988-89 to 1989-90 and that Roach's use of official time increased from approximately 2 percent of her time in 1988-89 to approximately 28 percent of her time in 1989-90. The parties also do not dispute that despite this increase in official time use, Roach performed basically the same amount of work during both periods.
During this time of increased Union activity, Henry made a statement to Roach linking Roach's use of official time with the timeliness of her work. By linking Roach's protected activity with Henry's perception of her performance, Henry effectively discouraged Roach from engaging in further protected activity. That is, in these circumstances, it would be reasonable for an employee in Roach's position to infer from Henry's statement that her performance would be perceived as deficient so long as she spent time on protected activity.(10) Moreover, the statement was made well after performance problems allegedly occurred and did not include an offer of assistance or suggestion on how to avoid performance problems in the future, other than to refrain from engaging in protected activity. We find that the statement was not made in an attempt to resolve a conflict between management's right to manage efficiently and the employee's right to engage in protected activity but was an after-the-fact criticism of Roach's protected activity.
By criticizing Roach's use of protected activity without attempting to resolve a perceived conflict between the employee's right to engage in such activity and management's right to manage efficiently, we find that, in the circumstances of this case, the Respondent, through Henry's statement to Roach, interfered with, restrained, or coerced employees in the exercise of their right to engage in protected activity. Accordingly, consistent with Ogden Air Logistics Center and Scott Air Force Base, we find that the Respondent violated section 7116(a)(1) of the Statute.
In summary, we conclude, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (2) of the Statute as alleged in the complaint.
V. Order
Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Agriculture, U.S. Forest Service, Frenchburg Job Corps, Mariba, Kentucky, shall:
1. Cease and desist from:
(a) Making statements to employees which interfere with, coerce, or discourage any employee from exercising the rights accorded by the Federal Service Labor-Management Relations Statute to act for a labor organization in the capacity of a representative freely and without fear of penalty or reprisal.
(b) Discriminating against Joyce Roach by unlawfully taking into consideration in appraising her performance her activities on behalf of the National Federation of Federal Employees, Local 466, the exclusive representative of its employees.
(c) 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) Rescind the 1989-90 appraisal of Joyce Roach and reappraise her without unlawfully taking into consideration her activities on behalf of the National Federation of Federal Employees, Local 466, the exclusive representative of its employees; and provide Joyce Roach with any benefits to which she would be entitled as a result of the reappraisal.
(b) Post at its facilities at the U.S. Forest Service, Daniel Boone National Forest, Frenchburg Job Corps, Mariba, Kentucky, copies of the attached Notice on forms furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Forest Supervisor, and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure 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, Atlanta 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 EMPLOYEES THAT:
WE WILL NOT make statements to employees which interfere with, coerce, or discourage any employee from exercising the rights accorded by the Federal Service Labor-Management Relations Statute to act for a labor organization in the capacity of a representative freely and without fear of penalty or reprisal.
WE WILL NOT discriminate against Joyce Roach by unlawfully taking into consideration in appraising her performance her activities on behalf of the National Federation of Federal Employees, Local 466, the exclusive representative of our employees.
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.
WE WILL rescind the 1989-90 appraisal of Joyce Roach and reappraise her without unlawfully taking into consideration her activities on behalf of the National Federation of Federal Employees, Local 466, the exclusive representative of our employees; and provide Joyce Roach with any benefits to which she would be entitled as a result of the reappraisal.
_______________________________
(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 its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, whose address is: 1371 Peachtree Street, NE., Suite 122, Atlanta, GA 30309-3102, and whose telephone number is: (404) 347-2324.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The complaint also alleged that the Respondent violated section 7116(a)(8) of the Statute. In 46 FLRA 1375, we found that the General Counsel was not pursuing this allegation and, therefore, dismissed that portion of the complaint. Accordingly, this allegation will not be discussed further.
2. The Judge inadvertently referred to element 5 on Procurement Reports and Files as a critical element.
3. These matters included a grievance Roach filed on May 31, 1990, over Henry's denial of official time to prepare for negotiations.
4. Although the Judge noted Roach's testimony that the amount of work she completed in 1989-90 had decreased by 17 percent, he failed to note Roach's further testimony that "that's not figuring in [duties involving] the Imprest Cash or the travel advances" and that she performed essentially the same amount of work in 1989-90. Transcript at 74; 83. In any event, as the Respondent does not dispute that Roach performed basically the same amount of work in 1988-89 as in 1989-90, we find that for the purposes of this case, Roach performed basically the same amount of work in 1988-89 as in 1989-90.
5. Caswell testified that Roach was not rated in conformity with critical element 1.
6. Henry testified that she was unaware that during the mid-year review, Caswell had modified critical element 3 to require monthly rather than weekly forwarding of vouchers.
7. The General Counsel argued before the Judge that both Caswell and Henry made coercive statements to Roach. The Judge noted that the complaint alleged that Henry made a coercive statement and refused to allow the General Counsel to amend the complaint at the close of the hearing to encompass Caswell's allegedly coercive statements. The Authority upheld the Judge's ruling and, thus, only Henry's alleged statement is at issue.
8. We note the Judge's finding that "[o]ne could easily surmise that [Roach] received her . . . superior rating [in 1988-89] from that former supervisor because the two were very close friends and because that supervisor . . . was additionally motivated by considerations of [Union] solidarity." Judge's Decision on Remand at 10. As Lesch rated Roach as Fully Successful in 1987-88 and as Caswell signed off on both the 1987-88 and the 1988-89 ratings, we do not adopt the Judge's suggestion that the rating in 1988-89 was questionable. See Joint Exhibits D and E. Further, there is no record evidence supporting the Judge's finding that considerations of Union solidarity motivated Lesch to rate Roach Superior in 1988-89.
9. Roach testified that Henry made the statement a month or two before she received her performance appraisal, that is, sometime in August or September of 1990. The Judge noted Roach's testimony but stated that, based on his "appraisal of Roach's reliability," he gave "little weight to her testimony that the remark at issue was made in August or September, even though there is no other statement about its timing." Judge's Decision on Remand at 7 n.5. Rather, the Judge "th[ought] it likely [that] such conversations occurred in June or early July, when Roach's problems were surfacing and most serious." Id. As acknowledged by the Judge, there is no evidence, other than Roach's testimony, of when Henry's statement was made. In the absence of any other record evidence, we are unable to adopt the Judge's determination and, instead, will adopt Roach's testimony that the statement was made in August or September of 1990.
10. Shortly after the statement was made, management lowered Roach's performance rating. We found above that Roach's Union activity was a motivating factor in management's decision to take such action.