51:0629(56)CA - - U.S. Dept. of the Treasury, IRS, Austin Compliance Center, Austin, Texas and Martha L. McTeer - - 1995 FLRAdec CA - - v51 p629



[ v51 p629 ]
51:0629(56)CA
The decision of the Authority follows:


51 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

AUSTIN COMPLIANCE CENTER

AUSTIN, TEXAS

(Respondent)

and

MARTHA L. McTEER

(Charging Party)

DA-CA-21012

_____

DECISION AND ORDER

December 19, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

The Administrative Law Judge issued the attached decision, finding that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by transferring the Charging Party to a different branch of the Respondent allegedly because she had filed a grievance under the parties' collective bargaining agreement.

The General Counsel filed exceptions to the Judge's decision and the Respondent filed an opposition to the General Counsel's exceptions. The Judge's decision is based on findings that are, in turn, based on credibility determinations. The General Counsel's argument that the Judge erred in dismissing the complaint in effect disputes those credibility determinations. The demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51, 51-52 (1994), and the cases cited therein. We have examined the record and find no basis for reversing the Judge's credibility findings.

Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(*)

II. Order

The complaint is dismissed.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

INTERNAL REVENUE SERVICE

AUSTIN COMPLIANCE CENTER

AUSTIN, TEXAS

Respondent

and

MARTHA L. McTEER

Charging Party

Case No. DA-CA-21012

Michael Salyards
Counsel for the Respondent

Christopher J. Ivits
Charlotte A. Dye
Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (2), by transferring the Charging Party to a different branch of Respondent because she filed a grievance under the collective bargaining agreement.

Respondent's answer admitted the allegations as to the Respondent, the Union, and the charge, but denied any violation of the Statute.

A hearing was held in Austin, Texas. The Respondent and the General Counsel were represented by counsel 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 proposed findings have been adopted where found 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

Martha L. McTeer has worked for Respondent for 28 years. She is a Tax Examining Assistant, GS-6, step 10. Prior to June 1, 1992, she worked for about a year and a half as one of four GS-6 tax examiners in Branch D, Underreporter Division.

Branch D had four GS-6 tax examiners and seven GS-7 tax examiners as of February 1992. The four GS-6s were: Martha McTeer, Eula Edwards, Marian Shelton, and Charlotte Johnson. Edwards, Shelton, and Johnson received temporary promotions for 120 days to GS-7 while in Branch D. Mrs. McTeer did not. Branch Chief Emilia King determined that Mrs. McTeer needed to have more knowledge of the work and use better judgment. Mrs. McTeer also had not been able to competitively obtain a permanent career level GS-7.

In January 1992, Ms. Edwards advised Group Manager Rodriquez that she felt the four GS-6 employees were performing the same work as those employed at the GS-7 level. Mr. Rodriquez promised to look into the matter. Two weeks later Mr. Rodriquez informed Ms. Edwards that Branch Chief King said nothing could be done about the situation. At that time, management started monitoring the four employees' work to make sure they were not spending more than 25% of their time on higher-graded work.(*)

On February 11, 1992, National Treasury Employees Union, Chapter 247 (Union), the certified exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent, presented to Marsha Boatright, who replaced Rodriquez Group Manager in Branch D, a grievance under the collective bargaining agreement dated February 10, 1992. The grievance was a "mass grievance" filed on behalf of McTeer, Edwards, Johnson, and any other similarly situated employee. The grievance alleged that these employees were performing GS-7 work at the GS-6 pay level and sought compensation with the higher pay and benefits.

Responsible officials of Respondent, including Branch Chief King and Underreporter Division Chief Don Herron, were aware of the grievance shortly after it was filed. Between February 20, 1992 and August 3, 1992 the grievance was processed and denied through the fifth step. On August 18, 1992, arbitration was invoked. The record does not reflect the status of the arbitration.

As Chief, Underreporter Division, Don Herron is responsible for the organization of the division and allocating resources to ensure accomplishment of the division's mission. In 1989, Mr. Herron decided to reorganize the Underreporter Division so that complex, higher-graded response work would no longer be transferred to the Examination Division. In preparation of the arrival of the complex, higher-graded work from the Examination Division, most tax examining assistants were competitively promoted to the GS-7 level.

The complex, higher-graded response work was first introduced to Branch A of the Underreporter Division. In February-March 1992, an operational review of Branch D was conducted by Mr. Herron. It was determined that Branch D was ready for the complex, higher-graded work to be assigned. Mr. Herron determined that the totality of work to be performed in Branch D would be graded at the GS-7 level.

To streamline operations and reduce expenditures, it was determined by Mr. Herron that all tax examining assistants in Branch D must be qualified to perform the totality of their work at the GS-7 level. Any non-career level GS-6 tax examiners must be reassigned.

Marsha Boatright, Manager, Group D4, Branch D, Underreporter Division, informed the four GS-6 employees in March 1992 that their reassignment was imminent because they were career level GS-6 employees in a group which was to consist solely of GS-6/7 career level employees. At least six subsequent meetings took place between Ms. Boatright and the employees, together with their Union representative. The final decision to reassign the career level GS-6 tax examiners occurred on April 29, 1992. May 31, 1992, was the effective date of Martha L. McTeer's reassignment to Branch C, Underreporter Division. Branch C, Underreporter Division, was the only location in the division with career level GS-6 positions.

For the first six weeks or so in Branch C Mrs. McTeer and the other grievants performed primarily clerical filing duties. Due to personnel reductions in the clerical staff, it is often necessary for tax examiners to perform the advance clerical work on their cases. Otherwise, the examiners would have no work to process at times.

Subsequent to June 1, 1992, there has been no GS-6 tax examining work in Branch D, Underreporter Division. Subsequent to June 1, 1992, no career level GS-6 tax examining assistant has been either temporarily or permanently employed in Branch D, Underreporter Division.

On July 12, 1992, five employees were given temporary promotions on GS-6/7 career ladders into Branch D to resolve a backlog of over-age cases. The assignments were terminated after 85-90 days.

Eula Edwards, Charlotte Johnson, and Marian Shelton were ineligible for the 120-day temporary promotions because of prior promotions within the last year. Branch Chief Emilia King determined that Mrs. McTeer lacked the experience and judgment to qualify for a temporary promotion to the GS-7 level. The competitive process is the sole means for a tax examining assistant to obtain a permanent position at a higher grade level.

Marian Shelton was formally identified as a grievant for the first time at the fourth step meeting on June 15, 1992.

Mrs. McTeer's former group, D4, Branch D, Underreporter Division, no longer exists. Subsequent to June 1, 1992, staffing in Branch D, Underreporter Division has been reduced by half. The opportunities for promotion and career advancement are greater in Branch C than in Branch D at this time.

Discussion and Conclusions

The General Counsel contends that Respondent violated section 7116(a)(1) and (2) of the Statute by reassigning Mrs. McTeer from Branch D to Branch C because she filed a grievance.

In Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Authority addressed the analytical framework for resolving alleged violations of section 7116(a)(2) of the Statute. The Authority affirmed that, in such cases, the General Counsel bears the burden of proving, 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 condition of employment. If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. See Letterkenny, 35 FLRA at 118. Once the General Counsel makes a prima facie showing, a respondent may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken in the absence of protected activity. The General Counsel also may seek to establish that such reasons are pretextual. Id. at 120.

The record reflects that the Charging Party was engaged in protected union activity and that the Respondent was aware of that activity. The General Counsel claims that Respondent's motivation to transfer McTeer because of such activity is shown by (1) the timing of such action, (2) only McTeer and the other grievants were transferred, (3) substantial GS-6 work was left in the unit, and (4) McTeer should have been given a temporary promotion to do the GS-7 work instead of detailing and promoting other less experienced employees. The General Counsel also pointed to the differ-ences in testimony of Respondent's witnesses concerning such matters as (1) the actual time frame when upper management became aware of the grievance, (2) the distinctions between a GS-6 and GS-7 tax examiner, and (3) the reasons given for the reassignment. The General Counsel also claims that there was no need for Mrs. McTeer in Branch C as she and the other grievants performed mostly filing duties for the first six weeks or so.

Although closeness in time between an agency's employment decision and protected activity may support an inference of illegal anti-union motivation, it is not conclusive proof of a violation. U.S. Department of Labor, Washington, D.C., 37 FLRA 25, 37 (1990).

I have credited the testimony of Respondent's witnesses that the decision to reassign employees occurred because of a functional reorganization of the Underreporter Division and the determination to have only GS-6/7 level employees do the work in Branch D. This decision brought about the transfer of the grievants who were only rated as GS-6 tax examiners, including Mrs. McTeer.

The subsequent transfer to Branch D of five GS-5 or GS-6 employees and their temporary promotions to the GS-6/7 level was suspicious. Mrs. McTeer, who had been in the unit for a year and one half and had received training in some of the undisputed GS-7 type work, would have benefited from a temporary promotion instead of a transfer. However, Respondent demonstrated that all of the employees transferred were temporarily promoted into the GS-6/7 career ladder position. Three of the grievants were ineligible for such temporary promotions because of their prior temporary promotions within the last year. Mrs. McTeer was determined by her supervisor to lack the experience and judgment for a temporary GS-6/7 career ladder position, and it is noted that Mrs. McTeer, unlike the other three employees, had not obtained a temporary GS-7 during the year prior to the grievance.

I have credited the testimony of Marsha Boatright, Acting Branch C Chief at the time, who testified that there was a need for additional employees in Branch C. According to Ms. Boatright, it is often necessary for the tax examiners to perform the advance clerical work on their cases because of reductions in the clerical staff. Otherwise, the examiners would have no work to process at times.

Section 2423.18 of the Rules and Regulations, 5 C.F.R. § 2423.18, based on section 7118(a)(7) and (8) of the Statute, provides that the General Counsel "shall have the burden of proving the allegations of the complaint by a preponderance of the evidence." It is concluded that a preponderance of the evidence does not establish that Respondent violated section 7116(a)(1) and (2) when it reassigned Mrs. McTeer from Branch D to Branch C. Respondent has demonstrated that it had a legitimate reason for reassigning Mrs. McTeer and the reassignment would have occurred in the absence of protected activity.

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

ORDER

The complaint is dismissed.

Issued, Washington, DC, April 14, 1994

_________________________
GARVIN LEE OLIVER
Administrative Law Judge




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


Authority's Footnote Follow:

*/ In view of our conclusion that the Respondent demonstrated, by a preponderance of the evidence, that there was a legitimate justification for its decision to transfer the Charging Party to a different branch and that it woul