50:0261(46)CA - - EEOC, Phoenix District, Phoenix, AZ and AFGE, Local 3230 - - 1995 FLRAdec CA - - v50 p261

[ v50 p261 ]
The decision of the Authority follows:

50 FLRA No. 46











(Charging Party/Union)




March 23, 1995


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

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 (Judge) filed by the General Counsel. The Respondent filed a cross-exception to the Judge's decision and an opposition to the General Counsel's exceptions. No opposition was filed to the Respondent's cross-exception.

The complaint alleges that the Respondent violated section 7116(a)(1), (2) and (4) of the Federal Service Labor-Management Relations Statute (the Statute) by requiring a Union steward to make up certain work which the steward was unable to complete because she was engaged in protected activity. The Judge recommended that the complaint be dismissed.

Upon consideration of the Judge's decision and the entire record, we dismiss the complaint for reasons that differ from the Judge's. Accordingly, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II. Judge's Decision

The facts and other relevant matters are set forth in the attached Judge's decision, and will be only briefly summarized here.

The Respondent employs investigators at the Phoenix District Office to investigate claims of employment discrimination. In addition to investigations, all investigators are required to perform "intake" duty, which consists of interviewing persons who come into the Respondent's office with complaints of employment discrimination. Judge's Decision at 1. The Respondent assigns intake interviews to investigators in alphabetical order. If an investigator is unavailable for an intake interview, the next investigator in alphabetical order is assigned the interview and the name of the investigator who is unavailable is placed on a priority list for intake duty. Intake interviews are assigned to investigators on the priority list before assignments are made from the alphabetical list.

Union steward Joann Metz requested that she be excused from the requirement that she make up intake assignments which she missed while engaged in protected activity. When the Respondent denied her request, the Union filed an unfair labor practice charge alleging that the Respondent's requirement penalized Metz for performing Union duties, in violation of section 7116(a)(1), (2) and (4) of the Statute.

The Judge found that the Respondent's practice of requiring Metz to conduct make-up intake interviews was discriminatory. However, the Judge concluded that the complaint should be dismissed because the subject matter of the complaint was "covered by" Article 10.03 of the parties' agreement. Id. at 8.(1) The Judge determined that the Respondent was not obligated to "renegotiate" the agreement, under which, according to the Judge, the Respondent "was . . . privileged to require Metz to perform make[-]up intake assignments . . . ." Id. at 8, 10.

III. Positions of the Parties

A. General Counsel

The General Counsel excepts to the Judge's application of the Authority's standard for determining whether a matter is covered by an existing collective bargaining agreement. According to the General Counsel, that standard applies only in cases involving refusals to bargain, and the instant case does not involve such an allegation.

B. Respondent

The Respondent excepts to the Judge's conclusion that the intake make-up procedure was discriminatory. The Respondent claims that the General Counsel failed to prove that its actions were motivated by Metz' protected activity. The Respondent also claims that the Judge correctly determined that the matter was covered by the parties' collective bargaining agreement.

IV. Analysis and Conclusions

Under the Authority's analytical framework for resolving complaints of alleged discrimination under section 7116(a)(2) and (4) of the Statute, in order to establish a prima facie showing of a violation of the Statute, the General Counsel must establish by a preponderance of the evidence 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. Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny). See also Department of Veterans Affairs Medical Center, Brockton and West Roxbury, Massachusetts, 43 FLRA 780 (1991). We find that the required prima facie showing has not been established in this case because the record does not demonstrate that the Respondent's application of its intake make-up practice to Metz was motivated by consideration of her protected activity.

In particular, there is no evidence that the Respondent considered Metz' protected activities in establishing or applying its intake make-up procedure. The Respondent established and implemented the procedure several months before Metz began her employment. In addition, the record establishes that, with the exception of one employee who was excused from making up an assignment missed because of a special project, the procedure is applied in the same manner to all employees. Thus, the motivation required under Letterkenny has not been established.(2)

Consistent with the foregoing, there is no basis on which to conclude that the Respondent violated section 7116(a)(1), (2) and (4) of the Statute, as alleged, and the complaint must be dismissed.(3) Compare Social Security Administration, Inland Empire Area, 46 FLRA 161 (1992) (distribution of monetary awards held to discriminate against union stewards when the respondent reduced the stewards' awards to reflect the amount of time they were engaged in protected activity).

V. Order

The complaint is dismissed.




WASHINGTON, D.C. 20424-0001



Charging Party

Case No. SA-CA-20538

LaVerne G. Rens, Esq.
For the Respondent

Yolanda Shepherd Eckford, Esq.
For the General Counsel

Administrative Law Judge


Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the San Francisco Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by requiring an employee, who is also a Union steward, to conduct "makeup" intake interviews missed while engaged in Union representational duties or providing testimony in support of unfair labor practice charges filed under the Statute.

A hearing on the Complaint was conducted in Phoenix, Arizona, at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.

Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:

Findings of Fact

At all times material the National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO (herein AFGE) has been the exclusive collective bargaining representative of various of Respondent's employees and AFGE Local 3230 has been the agent of AFGE for the purpose of representing those employees.

The primary mission of the Phoenix District Office of the Equal Employment Opportunity Commission (EEOC) is to investigate complaints of discrimination pursuant to various laws enforced by that agency. In furtherance of its mission Respondent employs approximately 20 Investigators in the Phoenix office. Investigations are accomplished primarily from Respondent's office although "on-site" investigations are also conducted. An Investigator is expected to achieve case resolutions in an average of 19 to 21 investigations per quarter to maintain a "fully successful" performance appraisal rating. As part of their normally assigned duties all Investigators also perform intake work, which consists of interviewing and counselling members of the public who come to the EEOC office with complaints of discrimination or harm which might be cognizable under various laws administered by the EEOC. During this process the Investigator may take an affidavit from the individual. After consultation with the Investigator the individual may file a formal charge with the Investigator or the person may be referred to another agency or no action may be taken.

In order to make Investigators available to perform intake duties, Respondent employs what it terms an alpha rotation system. Thus all Investigators are assigned, in alphabetical order, the task of interviewing individuals who walk into the EEOC office with complaints or inquiries. If an Investigator is away from the office on a particular day and therefore unavailable for an intake assignment on that day, for example conducting an on-site investigation or on sick leave or annual leave, the next Investigator in alphabetical order is assigned the intake interview and the absent Investigator is placed on a priority list for the next day or upon return.(1) Investigators on the priority list are assigned intake duty first and then assignments revert to the regular alphabetical list of Investigators. It sometimes happens that an Investigator is assigned an interview from the priority list and shortly thereafter receives an interviewing assign-ment because the number of interviews are so numerous that the employee's name comes up on the alphabetical rotation list on the same day.

In certain situations an Investigator who is unavailable for a normal intake assignment from the alphabetical list is not required to fulfill that missed assignment by being placed on the priority list. The record reveals that where the Investigator misses an intake assignment because of being on a "special project", e.g. giving a speech, or is excused from intake in order to complete investigations in preparation to going on an extended vacation, makeup assignments are not required.

The alpha rotation system of assignments has been in effect since June 1990. Prior to that time intake assignments were given to one of each of Respondent's three investigative teams for an entire week at a time rather than assignments being continually made to all Investigators.

In September 1990 Jo Ann Metz began employment as an EEO Investigator at the Phoenix District Office. She previously worked for 14 years at the EEOC's Cincinnati office. On March 31, 1991 Metz was elected Chief Steward for the Union. The parties are covered by a negotiated collective bargaining agreement effective August 1, 1991, Article 10 of which grants official time to designated Union representatives for the performance of "representational and statutory functions". Article 10, entitled "Union Representation and Official Time", comprises almost two full pages of the contract and contains, inter alia, the following sections:

Section 10.03 Official time for representational duties assigned to a UNION Representative shall be taken into account in making work assignments to UNION Representatives. EMPLOYER evaluations of UNION Representatives must be based upon the actual time spent on their officially assigned work, adjusting standards accordingly.

Section 10.04 (a) Official time under this Article shall only be used to perform representational and statutory functions. Upon the effective date of this Agreement, the EMPLOYER agrees to authorize the use of reasonable official time for UNION Representatives to carry out duties authorized by the Civil Service Reform Act of 1978 and this Agreement. . . .

Pursuant to an official time arrangement between the parties herein, Metz has been allowed to use up to 20 percent of her work time for Union activities and according to Metz her usage of official time approximated her allocation. However, Metz also testified that from March 31, 1991 until the unfair labor practice charge herein was filed in June 1992 intake assignments increased as did her Union representational activity. According to Metz, during that period she filed two grievances and four or five unfair labor practice charges under the Statute against Respondent. In connection with such charges Metz provided statements and information to Authority representatives at the work-site. Metz also became involved in contract negotiations with Respondent concerning an "hours of work program" in December 1991 and these negotiations became more extensive in April, May and June 1992.

During the same period that Metz's Union activity increased, intake assignments also increased for all Inves-tigators. It appears from the record before me that the number of intake interviews conducted by Metz roughly approx-imated the average number conducted by all Investigators. However, Metz was third highest in charges taken by Investigators during intake interviews, which was well above the average number of charges taken by an Investigator. Thus Metz spent more time in intake interviews than the average Investigator since receiving a charge takes more time than conducting an intake interview that does not involve taking a charge from an interviewee.

Metz testified that when both Union representational duties and intake interviews increased, she felt adversely impacted by having to conduct makeup intake interviews which she missed because she was engaged in Union representational activity. Thus, the more time spent on intake work lessened the time available for investigative work. Performance appraisals are based only upon, and evaluation of, an Investigator's investigations and do not consider the intake interview aspect of an Investigator's work. According to Metz, she asked her supervisor, William Ryan, "several times" that she be taken off of being placed on the priority list when missing an intake interview because of being involved in Union representational work, and each time Ryan refused. Metz also testified she asked Ryan's supervisor Frank Lopez if she could be excused from intake assignments when engaged in Union representational activity, and was also refused. Metz was not specific as to when such requests were made nor was she par-ticularly clear or thorough with regard to the nature of these conversations. Ryan and Lopez testified that they did "not recall" Metz making such requests. Lopez acknowledged that other employees may have told him that Metz had complained about having to perform makeup intake assignments missed while on Union representational duties. Further, Ryan testified that sometime shortly before June 8, 1992 Metz "wanted to know if she missed a turn in her rotation as a result of being on Union duty, did she have to go back to the top of the list . . .". Ryan testified he discussed the situation with Deputy Director Roscoe Jones and was told if Metz missed a turn because of Union duties, she would be required to perform an interview when she first became available, along with her regularly assigned interview, which information Ryan trans-mitted to Metz.

On June 10, 1992 Metz signed the unfair labor practice charge herein in which she stated:

On June 8, 1992, William Ryan told me he had been told by Roscoe Jones "last week" that I must make up for all officially excused time in doing Intake duties. This is in addition to my regular turn as an individual, in my Unit.

I believe this is penalizing me for performing union duties and results in an inordinate amount of time spent on Intake duties. This was not considered in my performance evaluations since becoming a Steward in March, 1991.(2)

The charge was amended by Metz on July 29, 1992 to allege that management also required her "to make up Intake time for time spent with F.L.R.A. representatives".

The record reveals that in early 1993 Metz was put on a Performance Improvement Plan (PIP).(3) The PIP was not put in evidence and testimony regarding the PIP is sketchy at best. Metz merely testified she was put on the PIP because she "(a)llegedly did not do (her) work". Metz further testified that in connection with being put on the PIP she was counseled by her supervisor regarding how much time she spends on intake assignments.

Additional Findings, Discussion and Conclusions

Counsel for the General Counsel contends that Respond-ent's policy of requiring the performance of intake assign-ments missed in order to engage in activity protected by the Statute is inherently discriminatory in that it "penalizes" a union steward for engaging in such activity and accordingly, Respondent was obligated to make an accommodation to Metz by excusing her from makeup assignments. Counsel for Respondent essentially denies its application of the intake assignment system is discriminatory and, raising various arguments, contends that the General Counsel has not carried its burden of proving by a preponderance of the evidence that the Statute has been violated in this case.

In Letterkenny Army Depot, 35 FLRA 113 (1990), the Authority reaffirmed that in a case where discrimination is alleged the General Counsel must establish by a preponderance of the evidence that: (1) the employee against whom the alleged discrimination 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 condition of employment.(4) If such has been established, an agency will nevertheless not be found to have violated the Statute if it can demonstrate that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity.

Clearly Chief Steward Metz was engaged in activity protected by the Statute when assisting in both processing grievances and unfair labor practice charges. Further, I conclude that Respondent's practice of requiring the Union's Chief Steward to conduct an intake interview when an interview was missed because of having engaged in protected activity was discriminatory under the circumstances herein since the practice of requiring such makeup interviews put the Union representative at a distinct disadvantage with regard to how her performance was appraised. If Metz spent 20 percent of her time on protected activity, and that activity was taken while she was working on investigations, Respondent's 20 percent allowance on work requirements would have compensated Metz for time spent on protected activity. However, if Metz's protected activity was all spent during intake interviews, she would have been compensated for that 20 percent in her performance appraisal but, as she was required to conduct additional interviews to account for the missed interviews, she would not be available to handle investigations an additional 20 percent of the time while engaged in the makeup interviews. Thus, as she would also be unavailable to handle investigations while she was engaged in makeup interviews, Metz would have 40 percent less time available to handle investigations, for which she was appraised, while only receiving a 20 percent allowance.

Notwithstanding, on the state of the record herein I do not conclude it has been established that the PIP given to Metz was based upon matters sufficiently closely related to the assignment of makeup intake interviews to constitute evidence of discipline or adverse impact on Metz resulting from such assignments. The only record evidence concerning the PIP is that it was given to Metz in early 1993 because she "(a)llegedly did not do her work", and that she was counselled by her supervisor regarding the amount of time she spent on intake assignments. From such a paucity of evidence one could conclude that Metz was given the PIP because of reasons unrelated to the application of the intake interview makeup requirements concerning interviews missed because of protected activity.

I also find and conclude that Metz's conversations with supervisors Ryan and Lopez, as testified to by Metz, which testimony I credit, constituted requests that she be permitted to avoid having to conduct makeup intake interviews for the interviews she missed because of engaging in protected activity. As such, Metz was requesting that Respondent make a specific accommodation for her protected activity. While an agency may establish its own work requirements, where such is shown to be discriminatory in application against those engaged in protected activity the agency must accommodate the union representative so the discriminatory effects of the practice is nullified. Cf. Veterans Administration Washington, D.C. and Veterans Administration Medical Center and Regional Office, Sioux Falls, South Dakota, 23 FLRA 122, 124 (1986) and Department of the Air Force, Scott Air Force Base, Illinois, 20 FLRA 761 (1984). But, in my view, an agency need not, to avoid violating the Statute, accept the specific accommodation requested by the union representative. Rather the agency should be given wide latitude in seeking an accommodation which permits it to satisfy its needs and requirements regarding the performance of assigned work. Cf. Federal Railroad Administration, 21 FLRA 508 (1986). For example, Respondent herein might decide that an accommodation which would better facilitate its management obligations would be to continue with the intake interview makeup requirement and make further commensurate allowances on Metz's performance appraisals.

However, I find and conclude that the matter at issue herein was covered by the terms of the parties' collective bargaining agreement and appraisal arrangement and Respondent could rely on the terms of its agreements and need not essentially renegotiate such terms by providing an accomodation to Metz beyond what the parties had already agreed to. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), the Authority modified its approach when considering whether matters in dispute are "covered by" or "contained in" an agreement so as to obviate any requirement for further bargaining on the subject. In that case the Authority rejected its prior holding in Internal Revenue Service, 29 FLRA 162 (1987), where it held, at 167, that in determining whether a matter is covered by an agreement, "the determinative factor is whether the particular subject matter of the proposal . . . is the same." The Authority went on in SSA, at 1018-1019, to set forth the "framework" it would use to determine whether a contract provision covers a matter in dispute, as follows:

. . . Initially, we will determine whether the matter is expressly contained in the collective bargaining agreement. In this examination, we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute. (Citation omitted).

If the provision does not expressly encompass the matter, we will next determine whether the subject is "inseparably bound up with and . . . thus [is] plainly an aspect of . . . a subject expressly covered by the contract." (Citations omitted). In this regard, we will determine whether the subject matter of the proposal is so commonly considered to be an aspect of the matter set forth in the provision that the negotiations are presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision. If so, we will conclude that the subject matter is covered by the contract provision.

We recognize that in some cases it will be difficult to determine whether the matter sought to be bargained is, in fact, an aspect of matters already negotiated. For example, if the parties have negotiated procedures and appropriate arrange-ments to be operative when management decides to detail employees . . . it may not be self-evident that the contract provisions were intended to apply if management institutes a wholly new detail program, or decides during the term of the contract to detail employees who previously had never been subject to being detailed. To determine whether such matters are covered by an agreement, we will examine whether, based on the circumstances of the case, the parties reasonably should have contem-plated that the agreement would foreclose further bargaining in such instances. In this examination, we will, where possible or pertinent, examine all record evidence. (Citation omitted). If the subject matter in dispute is only tangentially related to the provisions of the agreement and, on examination, we conclude that it was not a subject that should have been contemplated as within the intended scope of the provisions, we will not find that it is covered by that provision. In such circumstances, there will be an obligation to bargain.

The Authority subsequently applied the SSA test in U.S. Department of the Navy, Marine Corps Logistics Base, Barstow, California, 48 FLRA 102 (1993) (Marine Corps Barstow) and Social Security Administration, Douglas Branch Office, Douglas, Arizona, 48 FLRA 383 (1993).

In the case herein the parties' collective bargaining agreement contains an extensive provision relating to Union representation and official time. That article specifically addresses adjusting standards for evaluating employees who are engaged in representational and Statutory functions. The agreement became effective August 1, 1991, four months after Metz became Chief Steward and became bound by an existing arrangement between the parties that allowed employees to use up to 20 percent of their worktime for Union activities. While the question of making up assignments missed while engaged in protected activity and how such makeup assignments should be considered when conducting performance appraisals is not specifically treated in the parties' agreement or arrange-ment, applying the SSA test to the circumstances herein I conclude that the matter was covered by the parties' agreement and arrangement and Respondent was therefore privileged to require Metz to perform makeup intake assignments as set forth above and not offer any further accommodation to Metz for such work. See SSA and Marine Corps Barstow.

In view of the entire foregoing and the record herein I conclude it has not been established that Respondent violated the Statute as alleged and I recommend the Authority issue the following:


It is hereby ordered that the Complaint in Case No. SA-CA-20538 be, and hereby is, dismissed.

Issued, Washington, DC, March 22, 1994

Administrative Law Judge

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

 Authority's Footnotes Follow:

1. Article 10.03 of the parties' agreement provides as follows:

Official time for representational duties assigned to a UNION Representative shall be taken into account in making work assignments to UNION Representatives. EMPLOYER evaluations of UNION Representatives must be based upon the actual time spent on their officially assigned work, adjusting standards accordingly.

Judge's Decision at 3 (emphasis in original).

2. Nothing in the decision under review finds to the contrary. Although the Judge recited the Letterkenny framework, the Judge did not apply it in reaching his conclusion that the make-up procedure was discriminatory.

3. In view of our decision, we need not discuss, and we do not adopt, the Judge's further conclusion that the matter was covered by the parties' collective bargaining agreement.

ALJ's Footnotes Follow:

1. Extended sick or annual leave would result in being placed on the priority list only once.

2. On June 11, 1992 Metz sent a memorandum to Ryan in which she sought to "confirm" that she requested she not be given additional intake assignments beyond the one she took that morning but had been refused.

3. I take administrative notice that a PIP is a supervisor's written plan identifying an employee's deficiencies given when an employee's work performance is potentially unsatisfactory. Failure to meet the requirements set forth in a PIP can result in the employee's reassignment, downgrading, or removal. See, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 22 FLRA 91, 101 (1986).

4. The Letterkenny approach applies regardless of whether consider