Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts (Respondent) and American Federation of Government Employees,, Local 3760, AFL-CIO (Charging Party)

[ v59 p194 ]

59 FLRA No. 33

SOCIAL SECURITY ADMINISTRATION
REGIONAL OFFICE OF QUALITY ASSURANCE
BOSTON, MASSACHUSETTS
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3760, AFL-CIO
(Charging Party)

BN-CA-00464
BN-CA-01-0433

_____

DECISION AND ORDER

September 24, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, 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 General Counsel. Neither the Respondent nor the Charging Party filed an opposition.

      In Case No. BN-CA-00464 the Judge found that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to nominate for an award any employee who participated in a Union-sponsored survey. [n1] The Judge recommended dismissing the complaint in Case No. BN-CA-01-0433, which alleges that a management official made a disparaging comment about an employee who was a Union steward, and discriminated against an employee in the awards process because the employee had engaged in protected activity by filing an unfair labor practice charge.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's decision in Case Nos. BN-CA-00464 and BN-CA-01-0433 and find that the Respondent violated the Statute as alleged in Case No. BN-CA-00464, but did not violate the Statute in Case No. BN-CA-01-0433.

II.     Background

A.     Case No. BN-CA-00464

      The Respondent's Regional Office of Quality Assurance was divided into two branches, the Disability Quality Branch (DQB) and the Assistance and Insurance Program Quality Branch (AIPQB). Within each branch, team leaders (who are management officials) reviewed the work of six to eight bargaining unit employees. The DQB team leaders were Murphy, Siderski and Sullivan; the AIPQB team leaders were Kachichian and Fontaine. An employee, who became a Union steward on February 29, 2000, was on Murphy's team until October of 2000, when she became a member of Sullivan's team.

      In March of 2000, the Union conducted a written survey of bargaining unit employees regarding their perception of whether various members of management had conducted themselves inappropriately. The steward in question had assisted in preparing the survey and was listed as one of the stewards to whom survey results were to be returned.

      The survey results were promulgated on or about March 16, 2000. For purposes of these cases, the most significant survey inquiry indicated that 100% of the women and 40% of the men felt that Murphy had engaged in inappropriate behavior. Murphy had the second "lowest" score of all of the management representatives and the lowest score of the DQB team leaders. On March 29, 2000, thirteen bargaining unit members signed and sent a memorandum to the Union's national president criticizing the substance of the survey and the manner in which the results were published. Murphy obtained a copy of that memorandum and posted it on a wall in his office, together with the results of the survey. Subsequently, Murphy informed a Union official that "he was hurt by the survey." Decision at 7. The Judge found that those employees who entered Murphy's office saw the memorandum, which remained posted for up to 6 weeks, and "were otherwise aware of his displeasure." Id. at 9.

      According to a Union official, Murphy stated that he would not submit a written nomination for anyone for an award who had anything to do with the survey. Murphy denied making the statement. However, neither Murphy nor any other team leader submitted written award nominations for that year. The Judge determined that Murphy made the statement as alleged to the steward [ v59 p195 ] and that the other members of the bargaining unit were subject to the coercive effects of Murphy's statement to the Union official and by the failure to submit written nominations by the team leaders, after a longstanding practice of making such nominations. Consequently, the Judge found that the Respondent violated the Statute.

      No exceptions were filed regarding Case No. BN-CA-00464 and it will not be discussed further; the Order and Notice for this case are set forth below.

B.     Case No. BN-CA-01-0433

      In 2001, the awards panel again convened to consider awards nominations. The panel consisted of three management members (team leaders Murphy, Sullivan and Kachichian) and three Union members (Papik, Lawlor and Jokinen). The panel established ground rules under which an award would not be given to an employee if there was a negative vote by any of the panel members. It was not necessary that each member approve of the award, but only that there be no negative vote. After additional discussion, the panel decided to establish a two tier system whereby award recipients would receive either $200 or $500. According to the testimony of the panel's management members, the panel decided that the determinative factor in making awards would be volunteer activity.

      The panel then proceeded to consider the individual award nominations. When considering the award nomination for a Union steward, Lawlor proposed that she receive a $500 award. According to the Judge, there was a "divergence of testimony" about the deliberations of the panel regarding the Union steward's award nomination. Decision at 10. Lawlor made a claim that Murphy asserted that he could not support an award nomination for her because she had filed an unfair labor practice charge against him. Murphy denied making that statement, and stated he did not support the $500 amount because of the Union steward's lack of volunteer activity. Three other members of the panel denied that Murphy made the alleged statement about the employee's filing of an unfair labor practice charge, and confirmed that the panel's recommendation for the $200 award was based upon her level of volunteer activity.

      Based on his resolution of the conflicting testimonies received at the hearing and the record evidence, the Judge concluded that the General Counsel had not established that the Respondent violated the Statute as alleged in Case No. BN-CA-01-0433.

III.     General Counsel's Exceptions in Case No.
           BN-CA-01-0433

A.     Failure to Apply the Required Analytical Framework

      The General Counsel contends that because the Judge did not set forth and apply the analytical framework to be applied to the allegation, his determination regarding Case No. BN-CA-01-0433 must fail. According to the General Counsel, that framework was originally set forth in Letterkenny Army Depot, 35 FLRA 113, 117-23 (1990) (Letterkenny) in which the Authority established the analytical framework it would follow in examining alleged violations of § 7116(a)(2) of the Statute. The General Counsel maintains that without the proper analytical framework, the Judge could not have determined whether the Respondent engaged in discriminatory or retaliatory actions. The General Counsel submits "that once the Authority applies all the relevant facts in the record to an appropriate legal analysis it will reach a different conclusion from that of the [Judge]." Exceptions at 23.

B.     Failure to Consider and Apply Relevant Facts and Findings

      The General Counsel argues that the Judge's decision confuses the facts of these cases, that there were two separate awards processes, and that there had been an ongoing history of unfair labor practice charges being filed when the 2001 awards process was conducted. The General Counsel argues that Murphy's awareness of the steward's involvement in the unfair labor practice charges "is undisputed, and his association of her with the complaint naming him is not only logical but highly likely[.]" Exceptions at 24.

      The General Counsel contends that the Judge failed to scrutinize the testimony and evidence offered during this case. In particular, the General Counsel relies on the Papik testimony and the Judge's "incorrect assertion" that Papik agreed that the Steward did not deserve a $500 award. Id. According to the General Counsel, Papik clearly testified to the contrary.

      Additionally, the General Counsel argues that the Judge did not consider his findings regarding Murphy's actions in 2000 in the analysis concerning Murphy's actions in 2001. The General Counsel states that the Judge "clearly discredited Murphy in [the 2000 case], but then implicitly credited him in [the 2001 case]. This turn in [the] tide is particularly curious[.]" Id. at 24. The General Counsel asserts that there had been considerable unfair labor practice activity during the year, some directly aimed at Murphy, and "yet the [Judge] [ v59 p196 ] somehow determined that Murphy was not likely to once again connect union activity to his detrimental actions in the next awards process in May 2001." Id. at 25.

      Finally, the General Counsel argues that there is sufficient documentary evidence in the record to support its contention that an unfair labor practice was committed. The General Counsel points to information in the record regarding the steward's volunteer activity. The General Counsel also asserts that the Judge did not make a credibility determination regarding both the contemporaneous note made at the panel meeting by Lawlor or the post-meeting statement he wrote for the Union President. The General Counsel contends that "relevant information necessary to find discriminatory activity by Respondent is already in the record for the Authority to review." Id. at 27.

C.     Failure to Find that a Coercive Statement was Made

      The General Counsel challenges the Judge's finding that Murphy did not make the alleged coercive statement, and urges the Authority to review and overturn the Judge's credibility determination underlying this finding because that determination is not based upon witness demeanor. The General Counsel points to Lawlor's testimony, and the contemporaneous note made by Lawlor during the 2001 awards determination, in support of its belief that the alleged coercive statement was actually made, and emphasizes the reliability of Lawlor's testimony, his reputable character, and the absence of any personal gain on his part as reasons why Lawlor's version of the facts should be believed.

D.     Failure to Find Discrimination and Retaliation

      The General Counsel argues that the Respondent experienced unprecedented Union activity during the 2000 to 2001 period, for which the 2001 awards were given. The General Counsel also asserts that the Respondent knew of the steward's participation in these Union activities. The General Counsel contends that the timing of management actions may be significant in determining whether an employee's protected activity was a motivating factor in that action, and relies on United States Dept. of Veterans Affairs, Med. Ctr., Northampton, Mass., 51 FLRA 1520, 1528 (1996). The General Counsel further contends that "discriminatory motivation may be demonstrated by circumstantial as well as direct evidence" and relies on Dep't of the Treasury, United States Customs Serv., Region IV, Miami, Fla., 19 FLRA 956, 970 (1985). Exceptions at 33-34.

      The General Counsel asserts that Murphy made anti-Union comments during both the 2000 and 2001 awards panel deliberations. The General Counsel contends that such comments in 2000 established that the Respondent had committed an unfair labor practice, and that the comments in 2001 directly linked the steward's protected Union activity to the lowered award she was given. The General Counsel argues that based on a complete review of the record, it has established that the steward's activity was protected and that this protected activity was a motivating factor in the awards outcome. Therefore, the General Counsel argues that the Authority should find that it established a prima facie case of discrimination.

      The General Counsel next argues that the Respondent's attempts to establish an affirmative defense do not withstand scrutiny. The General Counsel asserts that Murphy's earlier anti-Union conduct in 2000 tainted the 2001 awards panel process. According to the General Counsel, Murphy, who was no longer the steward's team leader, "interjected himself into the deliberations at the outset, before others had a chance to weigh in, and vetoed a higher level award for [the steward]." Exceptions at 35. The General Counsel then argues that the Respondent's defense related to the steward's lack of extensive voluntary activity was pretextual.

      The General Counsel also states that assuming arguendo, that volunteer activity was a determinative factor, the record does not support the Respondent's contention that the steward fell short in relation to her peers. The General Counsel maintains that the Respondent has not established that the steward did not deserve a higher level award. The General Counsel submits that the Respondent violated the Statute as alleged.

IV.     Analysis and Conclusions in Case No.
          BN-CA-01-0433

      For the reasons set forth below, we find that the General Counsel has not established that the decision of the Administrative Law Judge in Case No. BN-CA-01-0433 was in error or that the Respondent violated the Statute as alleged.

A.     The Judge did not Fail to Apply the Applicable Analytical Framework for Determining whether Respondent Engaged in Discriminatory or Retaliatory Actions

      The Judge set forth the applicable analytical framework in his discussion of Case No. BN-CA-0464. The Judge cited 305th Air Mobility Wing, McGuire Air Force Base, N.J., 54 FLRA 1243, 1249 (1998), which [ v59 p197 ] sets forth and discusses the Letterkenny framework. [n2] See Decision at 12. While the Judge did not restate the framework in the discussion of Case No. BN-CA-01-0433, it is apparent from the decision that the Judge followed the framework in his analysis of Case No. BN-CA-01-0433.

      Under Letterkenny, to prove a prima facie case under § 7116(a)(2), the General Counsel must establish that:

(1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment.

Letterkenny, 35 FLRA at 118.

      Consistent with Letterkenny, the Judge examined whether the Respondent's actions were motivated by the protected activity of the Union representative in question. The Judge examined the record evidence and concluded that the alleged coercive statement had not been made. Decision at 10. The Judge also concluded that there was unrebutted testimony from one of the Union members of the performance award panel that agreed with Murphy and other panel members that the level of volunteer activity (the criterion by which award determinations were made) by the Union representative in question was not great enough to warrant the higher cash award. Decision at 10-11. Based upon consideration of the record evidence, the Judge concluded that the General Counsel had not proven its case by a preponderance of evidence. Decision at 11.

      We find that the Judge's analysis examined whether or not the protected activity of the Union representative in question "was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment." Letterkenny, 35 FLRA at 118. As a result, the Judge did not fail to apply the applicable Letterkenny analytical framework for determining whether the Respondent engaged in discriminatory or retaliatory actions in violation of § 7116(a)(2) of the Statute. Accordingly, we deny the exception.

B.      The Judge did not Fail to Consider and Apply Relevant Facts and Findings

      The General Counsel has the burden of establishing by a preponderance of the evidence that the alleged unfair labor practice occurred. To support its contentions, the General Counsel relies on the Papik testimony and argues that Papik testified that the steward should receive the higher level award. However, a review of Papik's testimony reveals that Papik was not asked what award amount he thought the steward should receive, or whether he thought that the steward should receive the higher $500 award amount. See Hearing Transcript at 260 et seq. Moreover, the Judge noted that Papik concurred that the steward should receive the lower award amount. See Judge's Decision at 11. Thus, his testimony provides no support for the General Counsel.

      The General Counsel also argues that based on the overall record and because the Judge found that Murphy violated the Statute regarding the 2000 award process, Murphy committed the unfair labor practice alleged here. However, neither the fact of this earlier unfair labor practice nor the record as a whole supports the General Counsel's contention that Murphy's action in the 2001 award process was similarly inappropriate.

      We also find no basis for rejecting the Judge's credibility determination with respect to Murphy's testimony regarding the facts in this case just because he found Murphy not credible in the other case. Here the Judge relied on the testimony of other panel members who testified in support of Murphy's assertion that he (Murphy) did not make the statement in question in this case. In both instances the Judge evaluated the record evidence and determined, consistent with the evidence in each case, that Murphy was credible in one instance but not the other. Based on the record as a whole, we conclude that the Judge did not fail to consider and apply relevant facts and findings. See 24th Combat Support Group, Howard Air Force Base, Republic of Panama, 55 FLRA 273, 279 (1999). Accordingly, we deny this exception.

C.     The Judge did not Improperly Find that the General Counsel Failed to Prove that a Coercive Statement was Made

      According to the Judge's findings of fact, Lawlor testified that Murphy made the statement as alleged, but Murphy denied making the statement. The Judge also found that Papik stated that Murphy mentioned the steward's Union activity but did not mention filing the unfair labor practice charge. According to the Judge, [ v59 p198 ] Sullivan and Kachichian denied that Murphy made the statement and confirmed that the panel's recommendation for the lower of two award amounts was in fact based upon the steward's level of volunteer activity. [n3] See Judge's Decision at 10. [n4] After weighing the evidence, the Judge concluded that the General Counsel had not proven that Murphy made the alleged statement and that the basis for the steward receiving the lesser award recommendation was her volunteer activity.

      The General Counsel asserts the Authority should rely solely on Lawlor's testimony, because he is reliable and trustworthy and has nothing to gain personally. However, two other employees, Sullivan and Kachichian, whose trustworthiness and reliability have not been questioned, stated that the statement was not made. See HT at 299-303, 417, 426. The General Counsel has provided no basis for the Authority to rely on one witness' testimony and ignore the testimony of others. The Judge had the opportunity to review all record evidence and his conclusions are supported by the record as a whole.

      As the General Counsel has provided no grounds to overturn the Judge's findings of fact, or his decision to credit one witness' testimony over that of several other witnesses, we deny the exception.

D.     The Judge did not Improperly Find that the General Counsel Failed to Prove that Discrimination and Retaliation Occurred

      There is no dispute that the steward was engaged in protected activity while acting as a steward. However, the General Counsel fails to establish that the Respondent violated the Statute, as alleged.

      The General Counsel argues that the timing of management actions is significant in determining whether an employee's protected activity was an improper motivating factor for an action taken by the Agency. The General Counsel asserts that Murphy made an anti-union comment during the 2000 award panel deliberations, and suggests that this same animus was exhibited during the 2001 award panel deliberations. However, the General Counsel offered no proof of animus other than an alleged comment which the Judge found unproven. An anti-union action in 2000 does not, by itself, establish that similar anti-union action occurred the subsequent year. As discussed above, the majority of those present for the 2001 awards panel deliberations testified that Murphy did not make the anti-union statements alleged at that meeting, and the Judge so found. See Decision at 10. Accordingly, we find no adequate basis to establish that the Respondent violated the Statute by retaliating against a steward for engaging in Union activities.

      Further, as discussed above, the Judge found that Murphy did not make the anti-Union statement alleged. [n5]  Therefore, we find no reason to overturn the Judge's finding that the steward's volunteer activity was the basis for her award in 2001 and the award of a lower amount was not in retaliation for her Union activities. Accordingly, we deny the General Counsel's exception.

E.     Summary

      The exceptions to the decision of the Administrative Law Judge in Case No. BN-CA-01-0433 are denied. We adopt the decision of the Administrative Law Judge in Case No. BN-CA-00464, as no exceptions were filed regarding that decision.

V.      Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts ("Respondent") shall:

      1.     Cease and desist from:

           (a) Making statements or taking action which could reasonably be expected to interfere with, coerce or discourage employees from exercising the rights afforded them by the Statute to form, join or assist the American Federation of Government Employees, Local 3760 ("Union") without fear of penalty or reprisal, such rights to include the right to conduct and participate in surveys of bargaining unit employees sponsored by the Union.

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

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute: [ v59 p199 ]

           (a) Post at all locations at Social Security Administration, Regional Office of Quality Assurance, Boston copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Director of the Respondent and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced or covered by any other material.

           (b) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has determined that the Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts has violated the Federal Service Labor-Management Relations Statute ("Statute") and has ordered us to post and abide by this Notice.

We hereby notify all employees in the collective bargaining unit that:

WE WILL NOT make any statements or take any action which could reasonably be expected to interfere with, coerce or discourage employees from exercising the rights afforded them by the Statute to form, join or assist the American Federation of Government Employees, Local 3760 ("Union") without fear of penalty or reprisal, such rights to include the right to conduct and participate in surveys of bargaining unit employees sponsored by the Union.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights guaranteed by the Statute.

           ________________________
                               (Activity)

Dated:___________ By:_______________________