54:0674(72)CA - - IRS, Philadelphia Service Center and NTEU - - 1998 FLRAdec CA - - v54 p674



[ v54 p674 ]
54:0674(72)CA
The decision of the Authority follows:


54 FLRA No. 72

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNAL REVENUE SERVICE

PHILADELPHIA SERVICE CENTER

(Respondent)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party)

BN-CA-50594

_____

DECISION AND ORDER

July 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, 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 filed by the Respondent. The Charging Party (the Union) and the General Counsel filed oppositions to the Respondent's Exceptions.(1)

The complaint alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to select a bargaining unit employee (the employee) for a position as Lead Tax Examining Clerk because the employee engaged in activity protected by section 7102 of the Statute. The Judge concluded that the Respondent violated the Statute as charged and ordered that the employee be made whole through retroactive promotion with back pay and benefits.

Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision.

II. Background and Judge's decision

A. The Facts

The facts are fully set forth in the attached Judge's decision and are briefly summarized here.

The events underlying this case took place at the Philadelphia Service Center (PSC), an office within the Internal Revenue Service. The employee worked as a tax examiner in the swing unit of PSC--a unit that processes tax returns in the Data Conversion Branch from January through June and then processes underreported tax returns in the Underreporter Branch from July through December. The employee's supervisor varies depending upon the branch to which she is assigned. The supervisor directly involved in this case was the employee's Data Conversion Branch supervisor (the supervisor). For a period of time, the supervisor served as swing manager for both branches, and thus, in addition to supervising the employee in the Data Conversion Branch, she supervised the employee in the Underreporter Branch.

During her employment at PSC, the employee has been an active member of the Union. She served as shop steward, membership coordinator, legislative aide, and on a national-level joint labor-management organization. As one of two Union representatives from PSC involved in this national-level joint organization, the employee traveled extensively and spent approximately 70% of her time on official time as a Union representative. On two separate occasions, the supervisor told the employee that this traveling interfered with her performance and that it put a hardship on the supervisor and the unit's employees.

Specifically at issue in this case is the employee's non-selection for a GS-6, Lead Tax Examining Clerk position in the swing unit. In January, February, March, and April of 1995, four Best Qualified Lists issued for the position, with the employee appearing on each one. For the first three Best Qualified Lists, the highest-ranking employee in each instance was offered the position and declined the offer.

The final Best Qualified List issued on April 5, 1995, and the employee was first on the list. Unlike the three prior situations, the employee, as highest ranking employee, was not offered the position. Instead, the Section Chief for the Data Conversion Branch (Section Chief) showed the supervisor the April certificate and asked whether the supervisor wanted to pick anyone from the list for the Lead Tax Examining Clerk position. According to the supervisor's testimony, she told the Section Chief that she did not want to pick anyone from the list because she had someone "acting in that spot" (Acting Clerk), and she was comfortable with that person.(2) Judge's Decision at 5. The supervisor also testified that this Best Qualified List issued during peak season, so there was not "time to stop and train someone else to do the position." Id. at 6.

The Lead Tax Examining Clerk position was not filled from the April 5, 1995 Best Qualified List. An April 12, 1995 memorandum from the Section Chief (April Memorandum) stated: "Per our conversation we are not selecting any one to fill this position, based on the data we spoke (word unclear). Please forward the package to personnel . . . ." Judge's Decision at 5. The position eventually was filled in August 1995, and the Acting Clerk was the individual selected.

B. The Judge's Decision

The Judge analyzed this case under the Authority's framework for cases alleging discrimination for protected activity set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). Under Letterkenny, the General Counsel has the burden to establish a prima facie showing of discrimination by showing 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. Id. at 118. If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. Id. Once the General Counsel makes the required prima facie showing, an agency may seek to establish the affirmative defense that: 1) there was a "legitimate justification" for the action; and 2) the same action would have occurred even in the absence of protected activity. Id. The General Counsel may seek to establish that the agency's reasons for taking the action were pretextual.

The Judge first determined that the General Counsel showed by a preponderance of the evidence that the employee was engaged in protected activity and that the Respondent's refusal to select her for promotion was motivated by this protected activity. The Judge then considered the Respondent's affirmative defense that it did not promote the employee in April 1995 because it was peak season and there was insufficient time to train a new Lead Tax Examining Clerk. The Judge found this defense to be "wholly pretextual," and concluded that the Respondent failed to show it would have taken the same action in the absence of the protected activity. Judge's Decision at 8-9.

In reaching this decision, the Judge relied upon two adverse inferences he drew based upon the Respondent's failure to call the Section Chief as a witness: 1) that the Section Chief and her supervisor, the Chief of the Underreporter Branch, "had no justification for not selecting [the employee]," Id. at 5 and 9; and 2) with regard to the April Memorandum, that the "data" referenced concerned the employee's use of official time, Id. at 5, and therefore "[the Section Chief] based the decision not to select anyone on the consideration of [the employee's] official time usage," Id. at 9. In explaining the April Memorandum adverse inference, the Judge stated that "the record would support no other assumption," because "[t]he vacancy remained; it required filling and was filled a short time later . . .; and the only matter shown on the record to involve 'data' at all, was [the employee's] official time usage." Id. at 5 n.4.

Along with these adverse inferences, the Judge set forth other circumstances of the case that caused him to find the Respondent's justification to be pretextual. The Judge noted that, with the exception of the employee, "the consistent practice had been to select, for this position, the employee first on the Best Qualified list[.]" Id. at 9. Further, the Judge found that the supervisor was neither consulted regarding, nor shown, earlier best qualified lists from which selections were made.

It was significant to the Judge that only when the employee appeared first on the list was the supervisor consulted and only then that the supervisor decided she did not want to make a selection. As noted by the Judge, the supervisor said she did not want to make a selection because: 1) someone was acting in that position with whom the supervisor was comfortable; and 2) it was peak season so she did not have time to train someone else for the position; however, the Judge was not persuaded by either of these rationales. First, the Judge concluded that the supervisor was not "forthright" regarding the role of the Acting Clerk and that the supervisor "misrepresented the departure of" the prior Lead Tax Examining Clerk (Prior Clerk). Id. at 6. Because of inconsistent testimony by the supervisor regarding the Prior Clerk's departure date and the Acting Clerk's role, the Judge found that the Prior Clerk was still serving in the position in April 1995, and that the Acting Clerk was in fact her backup. Thus, according to the Judge, "the person [the supervisor] claimed was acting as her lead examiner, and with whom she was comfortable, was not acting as lead examiner[.]" Id. at 9.

Second, the Judge found the assertion that it was peak season to be pretextual. The Judge based this finding on the supervisor's testimony that peak season in Data Conversion is January through May, and the fact that the other selections were made during this asserted "peak season." Id. at 6-7.

In making his ultimate conclusion that the Respondent violated the Statute, the Judge also recognized the supervisor's acknowledged disapproval of the employee's excessive traveling on union business. He therefore found that "[the supervisor's] real reason for refusing to select [the employee] was [the employee's] us[e] of official time which [the supervisor] plainly stated 'put a hardship on me and my unit.'" Id. at 9. According to the Judge, but for the employee's engaging in protected activity, she would have been selected for the position.(3) Because the Respondent failed to rebut the General Counsel's prima facie showing, the Judge held that it violated section 7116(a)(1) and (2) of the Statute.

III. Positions of the Parties

A. The Respondent's Exceptions

The Respondent argues that the adverse inferences drawn by the Judge against the Section Chief and/or the Chief of the Underreporter Branch concerning the reason for the employee's nonselection are not supported by the record. The two adverse inferences drawn by the Judge were both related to the Respondent's failure to call the Section Chief as a witness. First, the Respondent notes that its failure to call the Section Chief as a witness does not merit any adverse inference, because the Section Chief was available to be called as a witness by both the General Counsel and the Respondent. Second, the Respondent specifically challenges the adverse inference that the "data" referenced in the April Memorandum refers to the employee's official time usage. In that regard, the Respondent contends that the record does not support any connection between the referenced "data" and the employee's official time usage.

The Respondent further argues that the record contains sufficient evidence to show that it had a legitimate justification for not selecting the employee, and that it would have taken the same action even in the absence of protected activity. According to the Respondent, the supervisor's statements about peak season both in a general context--peak season lasts from January through May--and in a specific context--the supervisor's reaction to being shown the April 1995 certificate--provide the legitimate justification for the employee's non-selection. The Respondent states that the selection of the other employees during January, February, and March does not render the justification pretextual because the agency is the Internal Revenue Service, and it is understandable that its workload increases in April.(4)

B. The Charging Party's Opposition

The Charging Party argues that the Respondent's exceptions merely restate the arguments the Respondent presented to the Judge and present the same justification for the employee's non-selection that the Judge found to be wholly pretextual. Thus, according to the Charging Party, the Respondent has not established a legitimate justification for its failure to promote the employee. Because the Respondent failed to rebut the General Counsel's prima facie case, the Judge's decision was proper.

In response to the Respondent's exception to the Judge's adverse inference regarding the April Memorandum, the Charging Party first notes that whether the adverse inference was proper is inconsequential to the case's final outcome and is not a basis for overturning the decision. The Charging Party states that regardless of the adverse inference, the facts and circumstances of the case remain unchanged and support the Judge's finding that the justification given by the Respondent was wholly pretextual. Further, the Charging Party maintains that the Judge made the adverse inference regarding the term "data" in the context of the entire record before him and that the record supports the inference.

C. The General Counsel's Opposition

The General Counsel asserts that the record supports the Judge's determination that the justification relied upon by the Respondent to rebut the General Counsel's prima facie case was wholly pretextual. Thus, according to the General Counsel, the Judge's decision and order should be adopted by the Authority.

With regard to the Respondent's exception concerning the Judge's adverse inferences, the General Counsel, like the Charging Party, states that the Judge's decision is not dependent on the adverse inferences because the record otherwise supports the Judge's conclusions. That is, regardless of whether the adverse inferences are accepted, the Judge's decision does not turn on them and should be upheld. Nonetheless, the General Counsel also contends that the Judge correctly drew the adverse inference from the Section Chief's failure to testify, especially because the Respondent chose to have the supervisor testify regarding the Respondent's justification for not promoting the employee but chose not to have the Section Chief as a corroborating witness.

IV. Analysis and Conclusions

A. Preliminary Matter

As a preliminary matter, the General Counsel did not timely file its Opposition to Respondent's Exceptions (General Counsel's Opposition). However, for the reasons set forth below, we have considered the General Counsel's Opposition in this case.

The Respondent filed its exceptions to the Judge's decision on May 27, 1997. Pursuant to the Authority's regulations, oppositions to exceptions are to be filed with the Authority "within ten (10) days after service of any exceptions." 5 C.F.R. § 2423.28(b) (1997). When service of exceptions on the parties is by mail, five days are added to the prescribed period for filing the opposition. 5 C.F.R. § 2429.22. Therefore, the parties' oppositions to exceptions were due to be filed on June 11, 1997.

The Charging Party sought a twenty-one day extension of time to file its opposition (to July 2, 1997), which was granted. The Authority's order specifically stated, "The Charging Party's opposition/cross exceptions to the Respondent's exceptions must be filed by July 2, 1997." Authority's Order, dated, June 6, 1997.

The General Counsel's Opposition was filed on July 2, 1997; however, the General Counsel did not seek an extension of time to file its opposition, nor was the General Counsel included in the Authority's order granting the Charging Party's extension of time to file its opposition. Thus, the General Counsel's Opposition was untimely filed.(5)

However, under the Authority's current practice, when an extension of time is granted to a party, it is understood that a non-requesting, allied party is also granted the extension (i.e., if a charging party seeks an extension of time, the General Counsel is also granted the extension). Although the order granting the extension of time in this case references only the Charging Party, the General Counsel relied upon the current practice and will not be penalized for doing so. As such, we have considered the General Counsel's Opposition in this case.

In order to eliminate any future confusion regarding extensions of time to file documents with the Authority, for all cases filed after the issuance of this decision, extensions of time to file will be granted only if a party specifically requests such extension. Because the Authority's regulations require that any party seeking an extension of time to file "shall state the position of the other parties on the request for extension," 5 C.F.R. § 2429.23(a), all parties should be on notice of any request for extension and thus have an opportunity to request their own extension of time to file.

B. The Adverse Inferences Drawn by the Judge

As noted above, the Judge drew two adverse inferences from the failure of the Section Chief to appear as a witness: 1) that the Section Chief could not articulate any justification for not selecting the employee; and 2) the "data" referenced in the April Memorandum concerned the employee's use of official time. The Respondent directly challenges the adverse inference regarding the April Memorandum and indirectly challenges the adverse inference regarding the lack of justification for the employee's non-selection. According to the Respondent, the adverse inference drawn against the Section Chief and/or her supervisor concerning the reason for the employee's non-selection--that "data" means the employee's official time usage--is not supported by the record.

1. The Judge Properly Drew the Adverse Inference Against the Respondent for Failure to Call a Witness

In general, "when a party fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any factual question on which the witness is likely to have knowledge." International Automated Machines, Inc., 285 NLRB 1122, 1123 (1987) (IAM). See also 2 John W. Strong et al., McCormick on Evidence, 184 (4th ed. 1992) (McCormick). Thus, it was reasonable for the Judge to draw the adverse inference that the Section Chief's absence indicated that the Section Chief could not articulate a legitimate justification for the non-selection.

The Respondent contends, however, that no adverse inference should be drawn with regard to the Section Chief's failure to appear because the Section Chief was equally available to be called as a witness by both IRS and the General Counsel. See O'Dovero Construction, Inc., 264 NLRB 751 (1982). In making this argument, the Respondent is overstating the National Labor Relations Board's (Board) law regarding a witness' being "equally available" to both parties. As the Board stated in IAM, "an adverse inference is unwarranted when both parties could have confidence in an available witness' objectivity." IAM, 285 NLRB at 1123. But where, as in the instant case, the "missing witness is a member of management" and it can be assumed that the witness would be favorably disposed toward management, an adverse inference is warranted even if the witness was, technically, equally available to be called by either party. Id. Thus, we find that the Judge's adverse inference regarding the Section Chief's inability to articulate a legitimate reason for the employee's nonselection was reasonable.

2. The Judge Improperly Drew the Adverse Inference Regarding the April Memorandum

The Judge's adverse inference that the "data" referred to in the April Memorandum refers to the employee's use of official time is erroneous. There is no logical rationale for drawing an adverse inference in the manner done by the Judge in this particular instance. An adverse inference may be drawn if a party fails "voluntarily to produce documents or other objects in his or her possession as evidence." McCormick, 184. However, the document referencing "data" is in the record; thus failure to produce the document is not a ground for making an adverse inference.

Further, there is no evidence that demonstrates how the Section Chief's failure to appear as a witness necessitates that the word "data" in the April Memorandum refers to the employee's use of official time. Although the supervisor counseled the employee regarding her extensive travel for union business, and testified to her concerns in that regard, there is no evidence that demonstrates the supervisor spoke with the Section Chief regarding the employee's use of official time. In fact, nothing in the record suggests that the Section Chief was aware of the employee's use of official time.(6) Thus, there is no connection between the "data" in the April Memorandum and the employee's use of official time.

We therefore disagree with the Judge on this adverse inference and do not draw any adverse inference with regard to the Section Chief's failure to appear and the meaning of "data" in the April Memorandum. See, e.g., Equal Employment Opportunity Commission, 24 FLRA 851, 857 (1986) (Authority disagreed with Judge's adverse inference). Despite our rejection of this particular adverse inference finding by the Judge, we nevertheless uphold the Judge's final decision in this case because there is sufficient other evidence to support the Judge's ultimate conclusions.

C. The Respondent's Asserted Justification for not Promoting the Employee Was Pretextual

In order to rebut the General Counsel's prima facie case, the Respondent must show by a preponderance of the evidence that it had a legitimate reason for taking the action and that it would have taken the action even in the absence of the protected activity. Letterkenny, 35 FLRA at 119. The Judge found that the Respondent did not rebut this showing because the supervisor's justification regarding insufficient time to train a new employee during peak season and her "comfort level" with the Acting Clerk were wholly pretextual. Further, the Judge noted that the Respondent's consistent hiring practice was not followed in this instance. The Judge's determination is supported by the record.

The record shows that three Best Qualified Lists resulted in selection of the candidate with the highest score. Each of the three selections was made without consultation with the supervisor. When the employee had the highest score on the final Best Qualified List, however, the supervisor was consulted and decided that she did not want to fill the position.

The Judge considered and rejected the supervisor's two asserted justifications for not selecting the employee, and the record supports his findings in this regard. First, the Judge discredited the supervisor's statement that she was comfortable with the Acting Clerk. The Respondent did not challenge the Judge's credibility finding in this regard, thus this finding need not be reviewed.

Second, the record supports the Judge's determination that the supervisor's assertion regarding it being "peak season" was pretextual. As the Judge noted, the other selections were made in January, February, and March--part of "peak season," according to the supervisor. Judge's Decision at 6. Further, although we recognize that April is a busy month for the Internal Revenue Service, we agree with the Judge that the other selections in this case were made during the period that Respondent described as the "peak season"--January through May.

Finally, it is undisputed that the supervisor was dissatisfied with the employee's extensive traveling on union business and that she felt that it interfered with the employee's performance. She testified that she counseled the employee about this, and she stated that the travel had created a hardship for her and her unit.

Based upon the findings above, the record thus supports the Judge's determination that the employee's protected activity was the reason for her non-selection for the Lead Tax Examining Clerk position. We agree with the Judge that the Respondent's asserted justification for the employee's nonselection is pretextual. Based upon the Respondent's failure to rebut the General Counsel's prima facie case, we find that the Judge properly determined that the Respondent violated the Statute and, accordingly, we deny the Respondent's exceptions. We also find the Judge's recommended remedy to be appropriate, having noted (footnote 4 supra) that the Respondent raised no exception in this regard.

V. Order

Pursuant to section 2423.41 of the Federal Labor Relations Authority's Regulations and section 7118 of the Statute, the Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania, shall:

1. Cease and desist from:

(a) Discriminating against bargaining unit employees by denying them promotional opportunities because they have used official time or have engaged in any other protected activity on behalf of the National Treasury Employees Union, the exclusive representative of its employees.

(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit 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) Make whole Ms. Solone A. West by retroactively promoting her to the position of Lead Tax Examining Clerk, GS-6, to April 5, 1995, and awarding her back pay and allowances equal to that which she would have earned in this position from April 5, 1995, to the date of her promotion, less that compensation she has received during this period as a Tax Examiner, GS-5.

(b) Post at its facilities at the Philadelphia Service Center, Philadelphia, Pennsylvania, 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 Director of the Philadelphia Service Center, 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.

(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY BARGAINING UNIT EMPLOYEES THAT:

WE WILL NOT discriminate against employees by denying them promotional opportunities because they have used official time or have engaged in any other protected activity on behalf of the National Treasury Employees Union, the exclusive representative of bargaining unit 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 make whole Ms. Solone A. West by retroactively promoting her to the position of Lead Tax Examining Clerk, GS-6, to April 5, 1995, and WE WILL award her back pay and allowances equal to that which she would have earned in this position from April 5, 1995, to the date of her promotion, less that compensation she has received during this period as a Tax Examiner, GS-5.

Internal Revenue Service

Philadelphia Service Center

Date: _______________ By:___________________________

(Signature) (Director)

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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Region, whose address is 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

INTERNAL REVENUE SERVICE

PHILADELPHIA SERVICE CENTER

Respondent

and

NATIONAL TREASURY EMPLOYEES UNION

Charging Party

Case No. BN-CA-50594

Jack T. Anagnostis, Esquire

Agatha L. Vorsanger, Esquire

On Brief

For the Respondent

Martha D. Finlator, Esquire

Paula Ricciardelli, Esquire

On Brief

For the Charging Party

Barbara S. Liggett, Esquire

David J. Mithen, Esquire

For the General Counsel

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor- Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. (1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether: (a) Respondent failed to select Ms. Solone A. West for a position as Lead Tax Examining Clerk because of absence from work on official time, in violation of §§ 16(a) (1) and (2) of the Statute; and/or (b) Respondent told Ms. West that she wasn't promoted because she used too much official time, in violation of § 16(a)(1) of the Statute? For reasons fully set forth hereinafter, I find that Respondent's refusal to select Ms. West in April, 1995, violated §§ 16(a)(1) and (2) of the Statute.

This case was initiated by a charge filed on June 9, 1995 (G.C. Exh. 1(a)), but the Complaint and Notice of Hearing did not issue until July 31, 1996 (G.C. Exh. 1(c)) setting the hearing for September 26, 1996, at a place to be determined in Philadelphia, Pennsylvania. By Notice, dated August 30, 1996, (G.C. Exh. 1(e)), the place of hearing was set, pursuant to which a hearing was duly held on September 26, 1996, in Philadelphia, Pennsylvania, before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence and testimony on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, October 28, 1996, was fixed as the date for mailing post-hearing briefs which time was subsequently extended, on Motion of the Charging Party, to which the other parties did not object, for good cause shown, to November 29, 1996. Respondent, Charging Party and General Counsel each timely mailed an excellent brief, received on, or before, December 2, 1996, which have been carefully considered. The Transcript(2) and Exhibits were not received by this Office until March 3, 1997. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings and conclusions:

FINDINGS

1. National Treasury Employees Union (hereinafter, "NTEU") is the certified exclusive representative of a nationwide unit of employees of the Internal Revenue Service (hereinafter, "IRS"), including employees in the Philadelphia Service Center (hereinafter, "Respondent").

2. Ms. Solone A. West is employed as a Tax Examiner, GS-5; is included in the bargaining unit; has held her present position for five years; and has been employed by Respondent for about ten years (Tr. 18, 29). Ms. West is assigned to a "Swing Unit" which is a group of employees who split their time between two branches. From January through June, the "Swing Unit" processes tax returns in the Data Conversion Branch and from July through December "swings" to the Underreporter Branch to work on tax returns involving under reported income (Tr. 19).

3. Ms. West has a different supervisor depending on which branch she is working. In Data Conversion, from January through June, she is supervised by Ms. Lorraine T. Ings (Tr. 18) and in Underreporter, from July through December, she is supervised by Ms. Yvette Love (Tr. 18); however, Ms. Ings has served as swing manager for both branches when the Underreporter Branch was without a manager (Tr. 42, 43) and, on and off, has supervised Ms. West for about three or four years (Tr. 19).

4. Ms. West has been an active member of NTEU for several years and has served as steward, membership coordinator and legislative aide (Tr. 20). In 1993, Ms. West was appointed by NTEU to serve on the CORS business team, which was a national level, joint labor-management effort to re-engineer and improve IRS. She was one of two NTEU representatives from Philadelphia on this team and participation required significant travel and high usage of official time (Tr. 21, 22). During her tenure on CORS, which extended from 1993 to July, 1995, Ms. West estimated that 70% of her time was on official time as a NTEU representative. Currently, as a steward, she estimated that she spends 20% of her time on official time as a NTEU representative and 80% of her time doing tax examiner work (Tr. 21). Although Ms. West's use of official time was not questioned, it was clear that her absence as a member of CORS inconvenienced management (Tr. 22, 58).

5. Ms. West grieved her performance appraisals covering the years 1993, 1994 and 1995 and her appraisal was raised in each instance (Tr. 26). Both in the 1993 and the 1994 grievances, Ms. West's use of official time was discussed and, clearly, had affected her initial performance appraisal. Her 1993 appraisal, which Ms. Ings had initialed (Tr. 27), was raised by the Branch Manager, Ms. Sharon Glenn (Tr. 27), and the adjusted appraisal (Tr. 34), which was used for her bid for the Lead Tax Examining Clerk opening, discussed hereinafter, was dated April 20, 1994 (Res. Exh. 1). The grievance meeting on her 1994 appraisal(3) was held in February, 1995 (Tr. 28). Ms. West testified Ms. Ings,

"A . . . She really didn't like the fact that I had a nerve to grieve my evaluation again.

"Q Did she say why she thought you should not grieve?

"A Because that I am not in the work place to -- why should my evaluation be any better than anyone else's if I'm not there to perform my duties." (Tr. 28).

Ms. Ings confirmed Ms. West's testimony and, when asked if she remembered making statements at the February, 1995, grievance meeting, testified as follows:

"A I probably did because her travel status did put a hardship on me and my unit because, as I stated before, I always had to get somebody to complete Solone's work." (Tr. 58).

Moreover, in 1994, when Ms. West was her employee, Ms. Ings counseled Ms. West and testified, ". . . at that particular year, Solone was doing a lot of traveling. She was on some type of task force. And I just felt that her traveling probably interfered with her performance because she probably could have came (sic) up higher had she not been traveling as much. So she wasn't there to do the work, therefore, her standards fell." (Tr. 49-50). On cross-examination, she made it clear that she told Ms. West, ". . . I said something to her to the effect about her traveling status puts a hardship on my unit because I always have to get somebody to do her work." (Tr. 58).

6. On November 14, 1994, Respondent posted a vacancy announcement for: Lead Tax Examining Clerk, GS-6 (Res. Exh. 2). The closing date was November 28, 1994, and the Best Qualified list was issued January 20, 1995. Ms. West was fourth on this list, with a score of 134; Mr. Patrick Hopkins was third, with a score of 137; Ms. Lendora M. Goodwin was second, with a score of 151; and Ms. Melissa A. Knight was first, with a score of 159 (Res. Exh. 2).

On January 24, 1995, Ms. Knight was selected; but she declined the position because she had, ". . . already accepted another position of a higher grade" (Res. Exh. 2; Tr. 23).

On February 13, 1995, a new Best Qualified list issued on which Ms. Goodwin was first; Mr. Hopkins was second; Ms. West was third; and a Ms. Mary L. Gingrich was fourth, with a score of 132 (Res. Exh. 3). Ms.  Goodwin was selected on February 21, 1995, but declined the position (Res. Exh. 3; Tr. 25).

On March 9, 1995, a new Best Qualified list issued on which Mr. Hopkins was first; Ms. West was second; Ms. Gingrich was third; and Ms. Patricia Martin was fourth, with a score of 127 (Res. Exh. 4). Mr. Hopkins was selected on March 15, 1995, but declined the position (Res. Exh. 4).

On April 5, 1995, a new Best Qualified list issued on which Ms. West was now first; Ms. Gingrich was second; Ms. Martin was third; and a Ms. Debra R. Henesey was fourth, with a score of 118 (Res. Exh. 5).

But, rather that select Ms. West as the highest scoring candidate, as it had done on the three prior occasions, Ms. Mary McKeever, Section Chief, Data Conversion Branch (Tr. 71) and Ms. Ings' supervisor, came to Ms. Ings, showed her the April, 1995, certificate and, ". . . asked me [Ings] did I want to pick anybody from the list, and at that particular time I told her no because I had already cast (sic) someone acting as my lead." (Tr. 44); ". . . as I said, I already had someone acting in that spot. I was comfortable with the person that I had." (Tr. 45). Nevertheless, Ms. Ings recognized that the vacancy still existed and that it would be announced again, as she said, ". . . I guess it had to be if we didn't choose anybody at that particular time. That's the usual procedure." (Tr. 47).

7. Ms. McKeever on April 12, 1995, in a memorandum to Rose Mary, whose position was not identified, requested,

"Per our conversation we are not selecting any one to fill this position, based on the data we spoke (word unclear). Please forward the package to personnel . . . ." (Res. Exh. 6)(Emphasis supplied).

Ms. McKeever was not called as a witness and, of course, no explanation was provided as to what "data" she had discussed with Rose Mary, or why she had talked to Rose Mary about not filling this position. I draw the adverse inference that the "data" referred to concerned Ms. West's official time usage.(4) Ms. Ings testified that the only certification she was shown was the April certification on which Ms. West was first; that Ms. McKeever never discussed the vacancy announcement until April (Tr. 43); and she knew nothing about the selection of Ms. Knight or Ms. Goodwin [Mr. Hopkins was a Tax Examiner, GS-6 (Res. Exhs. 2, 3 and 4) and apparently not under her supervision. In any event, she was not asked about presenting, ". . . [the] piece of paper asking them to accept or decline the position" (Tr. 56), to Mr. Hopkins] until she received the notification of their selection. I draw the further adverse inference that Ms. McKeever, knowing that Ms. West was first on this certification and without justification for not selecting Ms. West, went to Ms. Ings to conceal her, McKeever's, and/or her supervisor's, Mr. William E. Mesure, Chief Underreporter Branch, refusal to select Ms. West.

8. Ms. Ings gave as justification for her refusal to select Ms. West that, ". . . she had already cast (sic) someone acting as my lead" (Tr. 44). Then she added, "Well, as I said, I already had someone acting in that spot. I was comfortable with the person that I had. Plus, it was during peek (sic) season . . . we're pretty busy around peek (sic) season, and we don't really have the time to stop and train someone else to do the position. Debbie, the employee that I had as my acting lead, I was comfortable with her; my employees were comfortable with her. . . ." (Tr. 45). Later she emphasized that, " . . . I just didn't have the time to train anybody at that particular time, and we just usually don't pick leads during peek (sic) seasons." (Tr. 46). The justification given was wholly pretextual.

First, Ms. Ings was not forthright in her assertion that Ms. Debbie Kent was acting as Lead Tax Examiner Clerk (Tr. 45, 46, 47) and misrepresented the departure of Ms. Roshita Travers (Tr. 47). Ms. Travers had been the Lead Tax Examiner Clerk during the entire period Ms. West had been in her unit - about five years (Tr. 29) - and she had been selected for another position. Indeed, because Ms. Travers was leaving, this vacancy had been posted in November, 1994. Ms. Ings first said, "When Roshita [Travers] left me -- well, while she was my lead, Debbie was my back (sic). So once Roshita left, I just chose Debbie to be the acting lead until that position got filled." (Tr. 47). But Ms. Travers had "missed her training" (Tr. 52) and was, "still sitting with me" (Tr. 52). Not only was Ms. Travers still there in April, 1995, she was there at least until, "the latter part of '95" (Tr. 53) and quite probably through all of 1995, "When we swung in that conversion of '96 [i.e., January, 1996], Roshita didn't swing back with us"; ". . . So when we swung in '96 of this year, she didn't come back with me." (Tr. 51).

Ms. Ings first insisted that Ms. Kent, after January, 1995, was her acting lead (Tr. 45-46, 47). When, on cross-examination, she admitted Ms. Travers was still there, she said Ms. Kent was her backup, "As her back up because Roshita was still there with me. She knew the job. Okay. Debbie would act when Roshita was out as my back up." (Tr. 52); ". . . Roshita was still acting as the lead . . ." (Tr. 53). But thereafter, she again asserted that, no, Ms. Kent was functioning as lead tax examiner (Tr. 53).

Second, Ms. Ings testified that the peak season in Data Conversion is January through about May (Tr. 51, 53). As noted above, Ms. Knight had been selected on January 24; Ms. Goodwin had been selected on February 21; and Mr. Hopkins had been selected on March 15, each within the Data Conversion peak period; but when the April Certification issued with Ms. West as the top candidate, for the first, and only time, Ms. Ings asserted, ". . . we don't really have the time to stop and train someone else to do the position. . . ." (Tr. 45) and ". . . we just usually don't pick leads during peek (sic) seasons" (Tr. 46). Ms. Ings' assertions were belied by the selection of Knight, Goodwin and Hopkins. Moreover, there could not have been a more propitious time to train a new Tax Examining Clerk as, regardless of which version of Ms. Ings' testimony is accepted, Ms. Travers, a Lead Tax Examiner with many years experience was present awaiting assignment to a new position, and available to train a new lead tax examiner if Ms. Ings were truthful in the assertion that Ms. Kent was acting as her lead, or if, Ms. Ings were truthful in the assertion that Ms. Travers was still acting as the lead, as I believe she was, then Ms. Kent, who had experience as Ms. Travers' back-up, was present and available to train a new lead tax examiner.

Third, as Ms. West stated, the swing unit always operates in a peak season (Tr. 19), i.e., from January to June in the Data Conversion branch and from July to December in the Underreporter Branch.

9. Ms. West testified, or her testimony can be read to mean, that after she, West, learned of Ms. Knight's selection she asked Ms. Ings about it and Ms. Ings told her, ". . . who's going to do the job if you're not going to be there. I mean, I would have to train somebody and why should you get paid for this position and you're not going to be there?" (Tr. 24). Ms. Ings did not recall any conversation with Ms. West about her not being selected in January, 1995 (Tr. 50), and she did not remember any conversation with Ms. West after the vacancy announcement in November of 1994 (Tr. 50) - indeed, she denied any conversation with Ms. West (Tr. 50). I do not credit Ms. West's testimony that she spoke to Ms. Ings in January, 1995, about her, West's, not having been selected. I have not credited Ms. West's testimony for a number of reasons. First, Ms. Ings did not recall any such conversation. Second, Ms. West testified that Ms. Knight, a friend, had come to her and told her that she, Knight, had got the promotion; that she, West, had asked about her performance appraisal and was told she, Knight, had not got an award. Understandably, because Ms. West had received an award, she believed, albeit erroneously (Res. Exh. 2), that she must have been rated higher (Tr. 23-24). Ms. West testified,

"Q Did you talk with anyone in management after you learned of Melissa Knight's selection?

"A No. I went to the union office." (Tr. 24).

As a Union official, Ms. West knew that the Union got a copy of the Best Qualified list (Tr. 26) and, even though the Union's copy did not have scores (Tr. 32), she would have known that candidates were listed in the order of their scores, with the highest being first, etc. Once she saw the Best Qualified list, she would have known that Ms. Knight had ranked first; that she, West, had ranked fourth; and that Respondent had selected the employee ranked first. Third, Ms. Ings was not the selecting official and had Ms. West asked her why she, West, was not selected, it is not believable that she would have responded as Ms. West stated. Rather, she would have said just that, namely, that she had not been the selecting official. Fourth, Ms. West's statement is not convincing as a reply as to why, in January, 1995, Ms. Ings said she was not selected, thus, Ms. West stated, "Well, it was -- I had asked her about the position, and most of the time -- at that time, I was on the travel status. So her main thing was who's going to do the job if you're not going to be there. I mean, I would have to train somebody and why should you get paid for this position and you're not going to be there?" (Tr. 24). This sounds more like a statement Ms. Ings might have made if Ms. West, in 1994, when the vacancy announcement came out, had asked Ms. Ings about the vacancy. The obvious difficulty is that any statement in November was more than six months before the charge was filed (G.C. Exh. 1(a)). Or, it may very well stem from Ms. Ings' January, 1995, statement at the grievance meeting that Ms. West's, ". . . traveling status puts a hardship on my unit because I always have to get somebody to do her work." (Tr. 58); or it could well have been Ms. West's question in April, when she was not selected even though she was then first on the Best Qualified list, and Ms. Ings' response, inasmuch as Ms. Ings, for the first and only time in April made the decision not to select; but I am convinced that Ms. Ings did not, in January, 1995, tell Ms. West that she had not been selected because she was away from work too much on official time, i.e., Ms. Ings did not tell Ms. West she was not selected because ". . . who's going to do the job if you're not going to be there . . . why should you get paid for this position and you're not going to be there?", and this, and no other, is, in essence, the allegation of Paragraph 22 of the Complaint.

CONCLUSIONS

General Counsel has shown by a preponderance of the evidence that Ms. West was engaged in protected activity and that a motivating factor in Respondent's refusal to select her for promotion to Lead Tax Examining Clerk in April, 1995, was her engagement in protected activity. Accordingly, General Counsel had made a prima facie showing that Respondent violated §§ 16(a)(1) and (2) of the Statute by its refusal to select Ms. West for promotion in April, 1995. Letterkenny Army Depot, 35 FLRA 113 (1990); Federal Emergency Management Agency, 52 FLRA No. 47 (1996). Respondent failed to rebut this showing and its affirmative defense that it did not promote Ms. West in April, 1995, because it was peak season and it did not have time to train a Lead Tax Examining Clerk was wholly pretextual. Respondent failed to show that the same action would have been taken in the absence of the protected activity. Thus, I have drawn the adverse inferences from Respondent's failure to call Ms. McKeever, the supervisor of Ms. Ings who supervised Ms. West, and from Respondent's Exhibit 6, which was a memorandum from Ms. McKeever that: (a) Ms. McKeever, knowing that she, and/or Mr. William E. Mesure, Chief Underreporter Branch, had no justification for not selecting Ms. West, inasmuch as Ms. West was first on the Best Qualified list and the consistent practice had been to select, for this position, the employee first on the Best Qualified list; and (b) that Ms. McKeever based the decision not to select anyone on the consideration of Ms. West's official time usage. Further, Ms. Ings had not been consulted, or shown the promotion certifications issued for this position, in January, in February, or in March, 1995, when, on each occasion, the selectee had declined the position; that it was only when Ms. West, on the April certification, was first on the Best Qualified list that she was shown the promotion certification and, upon seeing the list, with Ms. West first, she said she did not want to make a selection because she already had someone acting that she was comfortable with and it was peak season and didn't have time to train someone else for the position. In fact, the person Ms. Ings claimed was acting as her lead examiner, and with whom she was comfortable, was not acting as lead examiner and her assertion about it being peak season was wholly pretextual. Ms. Ings had made it clear when she counseled Ms. West in 1994, that her, West's, traveling on "some type of task force" (Tr. 49) interfered with her performance and that her traveling status put a hardship on her, Ings', unit because she, Ings, always had to get somebody to do her, West's, work (Tr. 58). Ms. Ings, at the February, 1995, grievance meeting on Ms. West's grievance, again said that Ms. West's, ". . . travel status did put a hardship on me and my unit because . . . I always had to get somebody to complete Solone's work." (Tr. 58), and, it seems apparent, that Ms. Ings' real reason for refusing to select Ms. West was Ms. West's usage of official time which she plainly stated, "put a hardship on me and my unit". Therefore, I conclude that Respondent violated §§ 16(a)(1) and (2) of the Statute by its failure and refusal to promote Ms. West on April 5, 1995. I further find that, but for her engaging in protected activity, Ms. West would have been selected on April 5, 1995, for promotion to Lead Tax Examining Clerk, GS-6. The record shows that Ms. West was a good and productive employee as she received a performance award in 1994; she had about 10 years experience with Respondent and had been a GS-5 Tax Examiner for about five years; she was on the Best Qualified list for this position four consecutive times and was first on the April 5, 1995, Best Qualified list; and Respondent had consistently, until Ms. West topped the Best Qualified list, picked the person highest on the list. The vacancy remained, required filling and was filled a short time later.

Because, as fully set forth above, I have found that Ms. Ings did not tell Ms. West in January, 1995, that she was not selected because she was away from work too much, I do not find an independent violation of § 16(a)(1) of the Statute and the allegations Paragraphs 22 and 26 of the Complaint are dismissed.

Having found that Respondent violated §§ 16(a)(1) and (2) of the Statute by its failure and refusal to promote Ms. West on April 5, 1995, it is recommended that the Authority adopt the following:

ORDER

Pursuant to § 2423.29, of the Authority's Rules and Regulations, 5 C.F.R. § 2423.29, and § 18, of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania, shall:

1. Cease and desist from:

(a) Discriminating against its employees by denying them promotional opportunities because they have used official time or have engaged in any other protected activity on behalf of the National Treasury Employees Union, the exclusive representative of its employees.

(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) Make whole Ms. Solone A. West by retroactively promoting her to the position of Lead Tax Examining Clerk,

GS-6, to April 5, 1995, and awarding her back pay and allowances equal to that which she would have earned in this position from April 5, 1995, to the date of her promotion, less that compensation she has received during this period as a Tax Examiner, GS-5.

(b) Post at its facilities at the Philadelphia Service Center, Philadelphia, Pennsylvania, 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 Director of the Philadelphia Service Center, 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.

(c) Pursuant to § 2423.30, of the Authority's Rules and Regulations, 5 C.F.R., § 2423.30, notify the Regional Director of the Boston Region, Federal Labor Relations

Authority, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

___________________________________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: April 23, 1997

Washington, DC

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discriminate against our employees by denying them promotional opportunities because they have used official time or have engaged in any other protected activity on behalf of the National Treasury Employees Union, the exclusive repre-sentative of our employees.

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.

WE WILL make whole Ms. Solone A. West by retroactively promoting her to the position of Lead Tax Examining Clerk,

GS-6, to April 5, 1995, and WE WILL award her back pay and allowances equal to that which she would have earned in this position from April 5, 1995, to the date of her promotion, less that compensation she has received during this period as a Tax Examiner, GS-5.

Internal Revenue Service

Philadelphia Service Center

Date:______________ By:_____________________________

(Signature) (Director)

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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Region, whose address is: 99 Summer Street, Suite 1500, Boston, Massachusetts 02110-1200, and whose telephone number is: (617) 424-5730.




FOOTNOTES:

Authority's Footnotes Follow:

1. The General Counsel's opposition was untimely filed. However, for the reasons set forth in section IV.A., the General Counsel's opposition has been considered by the Authority.

2. The Acting Clerk was not on any of the Best Qualified Lists.

3. The Judge stated that he found no additional independent violation of section 7116(a)(1) as alleged in paragraphs 22 and 26 of the complaint. No exceptions were taken to this finding.

4. The Respondent does not except to the Judge's finding regarding the General Counsel's showing of a prima facie case or the Judge's recommended remedy. Therefore, those aspects of the Judge's decision are not addressed below.

5. The Authority has expressly held that a charging party that has not sought an extension of time may not use the General Counsel's "approved extension to enlarge the time for filing its opposition." U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309 n.1 (1991) (SSA). The same rationale logically applies when a charging party has received an extension of time and the General Counsel has not.

6. Although the General Counsel contends that because the employee's protected activity was highly visible it is "unlikely" that the Section Chief was unaware of the employee's official time usage, the record does not demonstrate that the Section Chief had knowledge of the official time usage.


ALJ's Footnotes Follow:

1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116 (a)(2) will be referred to, simply, as, "§ 16(a)(2)."

2. General Counsel's unopposed motion to correct the transcript, being wholly merit