United States, Department of Veterans Affairs, Golden Gate National Cemetery, San Bruno, California (Respondent) and Laborers' International Union of North America, Local 1141, AFL-CIO (Charging Party)

[ v59 p956 ]

59 FLRA No. 171

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
GOLDEN GATE NATIONAL CEMETERY
SAN BRUNO, CALIFORNIA
(Respondent)

and

LABORERS' INTERNATIONAL UNION
OF NORTH AMERICA,
LOCAL 1141, AFL-CIO
(Charging Party)

SF-CA-02-0126
SF-CA-02-0286
SF-CA-02-0649

_____

DECISION AND ORDER

May 14, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

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 General Counsel (GC) filed an opposition to the Respondent's exceptions. [n2] 

      The complaint in case SF-CA-02-0126 alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to select the chief steward for promotion because he engaged in protected activity. The Judge found that the Respondent violated the Statute as alleged, and ordered that the chief steward be retroactively promoted to the position he sought with backpay and allowances.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order consistent with our discussion below.

II.     Background & Judge's Decision

      The Respondent developed the Cemetery Caretaker Leader position when it learned that, on weekends, the San Mateo County Sheriff's Department would provide the cemetery with 35-40 workers serving community service sentences -- called "SWAP" workers -- if there was someone there to supervise them. Judge's Decision at 6. The chief steward and one other applicant applied for the Cemetery Caretaker Leader position. Both the chief steward and the other applicant were WG-5 Cemetery Caretakers, were rated "Well Qualified," and received identical ratings and total points on their respective rating sheets. [n3] Id. at 5; GC Exhibit 12 at 4, 5, 7. On May 31, 2001, the Respondent chose the other applicant -- and not the chief steward -- for the position.

      After his non-selection, the chief steward had at least three separate conversations with Foreman Smith, one of the two foremen who were the selecting officials for the position, regarding the reasons for his non-selection. [n4] 

      The Judge credited the chief steward's written statement that during the week of June 11, 2001, before he was notified of his non-selection by the personnel office, Foreman Smith told the chief steward that he had not been selected for the position and that the then Acting Cemetery Director "was going to give you that job [ v59 p957 ] but you pissed him off, fighting us. . . ." Id. at 9 (quoting GC Exhibit 13). The Judge also credited the chief steward's testimony that Foreman Smith said that the chief steward had upset the then-Acting Cemetery Director "fighting [him] on tooth and nail and everything." Id. at 8.

      The Judge further credited the chief steward's testimony and contemporaneous written statement with regard to a conversation that he had with Foreman Smith on June 26, 2001. The chief steward testified that Foreman Smith "informed me about that I didn't get the leaderman's job, and again telling me that I had to learn how to eat a little s--t . . . ." Id. at 9 (quoting Transcript at 63). The Judge also credited the chief steward's contemporaneous written statement which stated in relevant part: Foreman Smith informed me that "I did not get the leadman's job because [I] don't know how to shut up, that is keep [my] mouth shut. . . . [I've] got to learn how to eat a little s--t until [I] get what [I] want . . . ." Id. (quoting GC Exhibit 14).

      In January 2002 the chief steward and Foreman Smith had another conversation regarding the reasons for his non-selection in the presence of another bargaining unit employee. The Judge credited the testimony of that other employee who testified that Foreman Smith told the chief steward something to the effect of "you know, sometime you have to eat a little shit to get something, get somewhere, you know, get things, you know." Id. at 7 (quoting Transcript at 693-94). The Judge also credited the employee's statement that Foreman Smith told the chief steward that "[i]f he quit all this union stuff he might could get somewhere. . . " Id. at 8 (quoting Transcript at 693-94). In this connection, the Judge found that Foreman Smith, the other unit employee, and the chief steward "demonstrated that they fully understood [Foreman] Smith's reference to eating s--t to mean curtailment of [the chief steward's] union activity." Id. at 11. [n5] 

      The Judge found that while there was no question of the chief steward's knowledge and ability to perform the duties of a WG-5 Cemetery Caretaker, "there is a great deal of evidence and testimony demonstrating his aversion to performing those duties." Id. at 4. In so finding, the Judge credited the testimony of the former Acting Cemetery Director.

      The Judge found that there were "various sound reasons for not choosing [the chief steward] which had no relation to his protected activity[,]" including his "tardiness problem" and "his refusing a direct order to perform work for which he received a three day suspension[.]" Id. at 6. Nonetheless, under the framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Judge concluded that "the controlling reason for [the] Respondent's failure to select [the chief steward] was his protected activity[.]" Id. at 7. The Judge found that "despite [the chief steward's] numerous problems, [the] Respondent would have selected [the chief steward] but for his protected activity." Id. In this regard, the Judge stated in pertinent part:

While there were legitimate reasons why Respondent might not have selected [the chief steward], the sole reason for his non-selection was his protected activity. [Foreman] Smith so informed him before notification from Personnel; reiterated it after notification by Personnel; and about seven months later, in January, 2002, [Foreman] Smith continued the same comment. [Foreman] Smith, having told [the chief steward] that he would have been given the job but for his protected activity, continued to taunt [the chief steward] at least as late as January, 2002, in the same vein which demonstrates that other asserted reasons were, actually, pretextual.

Id. at 11.

      For these reasons, the Judge concluded that the Respondent violated § 7116(a)(1) and (2) of the Statute by its failure and refusal to select the chief steward for the Caretaker Leader position because of the chief steward's protected activity. The Judge ordered that the chief steward be retroactively promoted to the position and awarded backpay. [n6] 

III.      Positions of the Parties

A.     Respondent's Exceptions

      While the Respondent does not except to the Judge's finding that the foreman made the statements attributed to him, the Respondent claims that those remarks are hearsay and disputes the truth of the statements themselves. See Exceptions at 2, 6. In this connection, the Respondent asserts that the record does not support Foreman Smith's statement that the chief steward "would have been selected but for his [U]nion [ v59 p958 ] involvement[.]" Exceptions at 7. According to the Respondent, Foreman Smith's statement "rises no higher than to the level of bluster and, perhaps, inappropriate behavior toward [the chief steward]." Id.

      The Respondent contends that, under the Letterkenny framework, the GC has failed to establish a prima facie case of discrimination and that the Judge "did not have a sufficient basis" for finding that the Respondent would have promoted the chief steward but for his protected activity. Id.

      In support, the Respondent asserts that participation in training provided by the Sheriff's Department for supervising SWAP workers was a "prerequisite" for the position and that reliable attendance was also a requirement. Id. at 3. The Respondent asserts that the chief steward did not satisfy either of these criteria. The Respondent also argues that while the candidates were rated equally on the certification, the subjective criteria -- leave use, reliability, SWAP training -- "precluded" the chief steward's promotion. Id. at 7. The Respondent further asserts that the chief steward "was not a qualified candidate for the leaderman promotion[,]" and as such, the GC has failed to establish that the chief steward's protected activity was a motivating factor in the Respondent's denial of the promotion. Id.

      Next, the Respondent asserts that based on the subjective criteria -- leave use, reliability, and SWAP training -- it has established the affirmative defense that there were legitimate reasons for the decision not to promote the chief steward. In this connection, the Respondent asserts that the Judge failed to correctly apply the law and argues that "after finding that [the Respondent] relied on legitimate, non-discriminatory reasons for not promoting [the chief steward,] the legal analysis should have ended at that point." Id. at 2.

      The Respondent also argues that the GC did not offer substantial evidence that the Respondent's legitimate justifications were pretextual. In this connection, the Respondent contends that the Judge erred in finding that the Agency would have selected the chief steward but for his union activity.

      The Respondent asserts that there is a discrepancy over who actually made the selection and claims that the Cemetery Director had "ultimate authority" for the selection. Id. at 9. The Respondent cites the Judge's finding that the Cemetery Director could have rejected the recommendation of the foreman, but claims that he did not do so because the selectee "was the right man for the position[.]" Id. at 10. The Respondent contends that if the foremen had recommended the chief steward, the Cemetery Director would have rejected their recommendation and chosen the selectee anyway based on the many non-discriminatory reasons for not choosing the chief steward.

      Finally, the Respondent argues that "in the EEO discrimination context[,]" an agency's hiring decision is entitled to great deference. Id. at 11.

B.     GC's Opposition

      The GC contends that the Judge properly determined that the Respondent violated § 7116(a)(1) and (2) of the Statute by failing to select the chief steward because of his exercise of protected activity. The GC argues that under the Letterkenny framework, "[i]t is irrelevant" whether the Respondent's action "could be justified. Rather, the sole focus is whether in fact the same action would have been taken in the absence of protected activity." Opposition at 6 (original emphasis).

      First, the GC asserts that the Judge correctly found that the GC had established a prima facie case of discrimination. Noting that the Respondent does not except to the Judge's finding that the foreman made the statements attributed to him, the GC contends that it is well settled that evidence of anti-union animus on the part of the manager or supervisor alleged to have taken the discriminatory action serves to establish a respondent's unlawful motive and thus, the GC's prima facie case.

      Next, the GC contends that the Judge correctly concluded that the Respondent failed to establish that it would have taken the same action in the absence of protected activity. In support of the Judge's finding that the reasons for not promoting the chief steward were pretextual, the GC notes that while the Respondent sought to characterize the chief steward as an employee with poor work habits, there is no evidence that the Respondent has ever counseled the chief steward regarding his performance or that the chief steward has received a negative performance appraisal. In addition, the GC maintains that while the selecting official "freely discussed" with the chief steward on several occasions why he was not promoted, the selecting official never stated any reason other than the chief steward's protected activity. Id. at 9.

      Finally, the GC asserts that the Respondent's exceptions are based upon the Respondent's "misstatement" of the Judge's findings and of the applicable law. Id. at 7. In this connection, the GC asserts that "[c]ontrary to [the] Respondent's unsupported statement, the [SWAP] training course was not a `prerequisite' to selection." Id. at 3 (quoting Exceptions at 3). The GC also argues that the Judge correctly concluded [ v59 p959 ] that Foreman Smith was the deciding official for the position. In this regard, the GC notes that the Judge credited Foreman Smith's testimony regarding the selection process and from his testimony concluded that he and Foreman Ryan made the selection for the position. The GC also asserts that the Judge found that the Cemetery Director had the authority to approve or disapprove the decision and he chose to approve it. The GC further notes that insofar as the Respondent contends that the Judge erred in concluding that Foremen Smith and Ryan were the selecting officials, the Judge's finding was based on his credibility determinations based on the testimony of the witnesses, which the Authority should not overturn unless a clear preponderance of the relevant evidence demonstrates that the Judge erred. In this regard, the GC contends that the Judge's findings are "firmly supported by record evidence." Id. at 10.

IV.     Analysis and Conclusions

      Under the Letterkenny framework, the GC establishes a prima facie case of discrimination in violation of § 7116(a)(1) and (2) of the Statute by demonstrating 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. See, e.g., United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan AFB). Once the GC 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 been taken even in the absence of the protected activity. See id.

A.     The Judge did not err in finding that the GC established a prima facie case of discrimination.

      With regard to the first prong of the prima facie case, the Respondent does not except to the Judge's finding that the chief steward was engaged in protected activity. As such, it is undisputed that the chief steward was engaged in protected activity.

      As to the second prong, the Judge expressly found that "the controlling reason for [the] Respondent's failure to select [the chief steward] was his protected activity[.]" Judge's Decision at 7. As such, the Judge found not only that the chief steward's protected activity was a motivating factor in his non-selection, but that it was the "controlling" factor for his non-selection. Id. The Judge's finding is supported by the record and the Respondent's exceptions do not establish that the Judge erred.

      With one exception, none of the Respondent's arguments challenge the Judge's finding of a prima facie case. Instead, the Respondent's arguments relate either to its affirmative defense, addressed in subpart B. below, or are additional contentions that are addressed in subpart C.

      As for the exception, in determining that the GC established a prima facie case of discrimination, the Judge found that Foreman Smith stated, on several occasions, that the chief steward would have been selected but for his protected activity. The Judge further found that, having informed the chief steward "that he would have been given the job but for his protected activity," Foreman Smith "continued to taunt [the chief steward] in the same vein which demonstrates that other asserted reasons were, actually, pretextual." Id.

      The Respondent does not dispute that Foreman Smith made the statements attributed to him. [n7] Rather, the Respondent contends that "the facts described" in the statements are not true and are not supported by the record. Exceptions at 6. In our view, the Respondent has not established that the Judge erred in making the findings set forth above. In this regard, the Respondent acknowledges that the statements were made and concedes that Foreman Smith "made an inappropriate comment about [the chief steward's] union activity having some relationship to the selection[.]" Exceptions at 12. Under these circumstances, we find that the Respondent's exception does not establish that the Judge erred in finding that the chief steward's protected activity was a motivating factor in his non-selection.

      Accordingly, we find that the Respondent's exception does not establish that the Judge erred in finding that the GC established a prima facie case of discrimination. [ v59 p960 ]

B.     The Judge did not err in finding that the Respondent failed to establish that it would have taken the same action in the absence of the chief steward's protected activity.

      As stated above, in order to rebut the GC's prima facie case, the Respondent must show by a preponderance of the evidence that there was a legitimate justification for taking the action and that it would have taken the action even in the absence of the chief steward's protected activity.

      In this regard, the Respondent asserts that SWAP training was a "prerequisite" for the position and that reliable attendance was also a requirement. See Exceptions at 3. Acknowledging that the candidates were rated equally on the certification, the Respondent argues that the subjective criteria -- leave use, reliability, SWAP training -- nonetheless "precluded" the chief steward's promotion. Id. at 7. Based on these factors, the Respondent asserts that the chief steward "was not a qualified candidate for the leaderman promotion." Id.

      The Respondent's arguments fail to demonstrate that it would not have selected the chief steward in the absence of his protected activity. As the Judge found and the record reflects, before the Respondent made its selection decision, it had determined that the chief steward was a qualified candidate for the position. See Judge's Decision at 5; GC Exhibit 12 at 4, 5, 7 (the certification and the rating sheets indicate that the chief steward and the selectee were equally qualified candidates). Having itself previously found that the chief steward was a qualified candidate for the position, we reject the Respondent's attempt to argue that he was not qualified.

      With respect to SWAP training, nothing in the record supports the Respondent's claim that SWAP training is a prerequisite for selection to the position. In this regard, nothing in the vacancy announcement states that SWAP training is a prerequisite for selection to the position. See GC Exh. 10, Announcement for "Cemetery Caretaker Leader" Position. In addition, the Judge did not find that SWAP training was a requirement for the position. The Respondent attempted to argue -- for the first time at the ULP hearing in this case -- that such training was a prerequisite. Such a belated assertion is unsupported by the record, and does not establish that the Respondent had a legitimate, non-discriminatory reason at the time it did not select the chief steward.

      There is also nothing in the record to support the Respondent's contention that the chief steward's leave use was a problem prior to his non-selection. The Respondent presented no evidence that the chief steward was counseled on this matter or that his supervisors discussed such a matter with him. Moreover, the chief steward's leave usage is not addressed anywhere in any of his performance evaluations that are included in the record. See GC Exhibit 22. Similarly, there is no evidence that the chief steward had been counseled or reprimanded with regard to his reliability.

      Under Letterkenny, the pertinent inquiry is not whether there were legitimate reasons that might have supported the Respondent's decision not to select the chief steward but, rather, whether a preponderance of the record evidence demonstrates that the Respondent would not have selected him in the absence of his protected activity. In this regard, the Judge found that "[w]hile there were legitimate reasons" why the Respondent "might not have selected" the chief steward, "the controlling reason for [the] Respondent's failure to select [the chief steward] was his protected activity[.]" Judge's Decision at 7, 11. The record supports the Judge's conclusion that the controlling reason for the chief steward's non-selection was his protected activity. In this regard, the record establishes that the chief steward was qualified for the position. Additionally, the Respondent does not dispute that Foreman Smith made the comments attributed to him, which make clear that, in his view, the chief steward would have been selected for the position had he curtailed his involvement in union activity. Although the Respondent disputes the veracity of Foreman Smith's statements, it offers no evidence that such statements were false and fails to establish, by a preponderance of the evidence, that it would have taken the same action in the absence of the chief steward's protected activity.

      Accordingly, the Respondent's exceptions do not demonstrate that the Judge erred.

C.     Remaining exceptions

      The Respondent asserts that the Cemetery Director -- and not Foremen Smith and Ryan -- had the "ultimate authority" for the selection. Exceptions at 9. As noted above, the Judge found that Foreman Smith "credibly testified that he, with [Foreman Ryan] had been the `selecting official[s] for the caretaker leader position.'" Judge's Decision at 10 (quoting Transcript at 582). This finding is supported by a preponderance of the record evidence. In this regard, the "Merit Promotion Certificate" was entered into the record. Foreman Smith's signature appears on a line next to which is written, "Selecting Official's Signature." Opposition at 11; GC Exhibit 12 at 6. [ v59 p961 ]

      Additionally, we reject the Respondent's assertion that if the foremen had recommended the chief steward for promotion, then the Cemetery Director would have rejected that recommendation and chosen the selectee anyway for non-discriminatory reasons. There is no support for this assertion in the record. Nor does such an assertion rebut the Judge's finding that the asserted reasons for the chief steward's non-selection were pretextual.

      Finally, to the extent the Respondent argues that an agency's hiring decision is entitled to great deference, we find that this case is not a matter of deference. Rather, it is a matter of complying with the Statute's requirements to refrain from discriminating against an employee based on union activity. For the reasons previously expressed, applying the Letterkenny framework, we find that the Respondent has failed to rebut the GC's prima facie case of discrimination and has failed to establish that there was a legitimate justification for not selecting the chief steward and that it would have taken the same action even in the absence of the chief steward's protected activity.

V.     Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the United States Department of Veterans Affairs, Golden Gate National Cemetery, San Bruno, California, shall:

      1.     Cease and desist from:

           (a) Discriminating against employees by denying them promotional opportunities or issuing letters of reprimand because they have represented employees or have engaged in other protected activity on behalf of Laborers' International Union of North America, Local 1141, AFL-CIO (LIUNA), the exclusive bargaining unit representative.

           (b) Making statements that interfere, restrain, or coerce employees in their exercise of protected activity.

           (c) 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) Promote Mr. James Odon to the position of Cemetery Caretaker Leader, retroactive to June 7, 2001, and make Mr. Odon whole by awarding him backpay and allowances equal to that which he would have earned had he been in this position for all days he actually worked from June 7, 2001, to the date of his promotion, less the compensation and allowances that he received during this period as a Cemetery Caretaker, WG-5.

           (b) Rescind the letter of admonishment issued to Mr. James Odon, LIUNA Chief Steward, dated January 25, 2002, forthwith, and expunge that document from all records.

           (c) Reconsider any disciplinary action in which the letter of admonishment of January 25, 2002, was taken into account. If such reconsideration results in the imposition of lesser discipline, pay Mr. Odon backpay, as appropriate, in accordance with 5 U.S.C. § 5596.

           (d) Post at its facilities in San Bruno, California, copies of the attached Notice on forms to be finished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Cemetery Director, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places were 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 materials.

           (e) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.

      It is further ordered that the complaint in Case No. SF-CA-02-0649 is dismissed. [ v59 p962 ]


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

The Federal Labor Relations Authority has found that the United States Department of Veterans Affairs, Golden Gate National Cemetery, San Bruno, California, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this notice.

      We hereby notify employees that:

WE WILL NOT discriminate against employees by denying them promotional opportunities or issuing letters of reprimand because they have represented employees or have engaged in other protected activity on behalf of Laborers' International Union of North America, Local 1141, AFL-CIO (LIUNA), the exclusive bargaining unit representative.

WE WILL NOT make statements that interfere, restrain, or coerce employees in their exercise of protected activity.

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 Statute.

WE WILL promote Mr. James Odon to the position of Cemetery Caretaker Leader, retroactive to June 7, 2001, and WE WILL make Mr. Odon whole by awarding him backpay and allowances equal to that which he would have earned had he been in this position for all days he actually worked from June 7, 2001, to the date of his promotion, less the compensation and allowances that he received during this period as a Cemetery Caretaker, WG-5.

WE WILL rescind the letter of admonishment issued to Mr. James Odon, LIUNA Chief Steward, dated January 25, 2002, forthwith, and expunge that document from all records.

WE WILL reconsider any disciplinary action in which the letter of admonishment of January 25, 2002, was taken into account. If such reconsideration results in the imposition of lesser discipline, WE WILL pay Mr. Odon backpay, as appropriate, in accordance with 5 U.S.C. § 5596.

                              _______________________________
(Activity)

Dated:_________ By:__________________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103-1791, and whose telephone number is: (415) 356-0286. [ v59 p963 ]


Opinion of Chairman Cabaniss, dissenting in part:

      I write separately to address those aspects of the Judge's decision, and the majority opinion upholding it, that are at odds with the Statute and precedent. On the one hand, the Respondent clearly violated the Statute (§ 7116(a)(1)), when Supervisor Smith "taunted" Union Representative Odon (Odon) over a period of time by telling him that he would have been selected for the position in question but for his union activity. Decision at 11. The impropriety of this conduct is apparent. However, for purposes of a mixed motive analysis under § 7116(a)(2) and the Authority's decision in Letterkenny Army Depot, 35 FLRA 113 (1990), the evidence doesn't support the Judge's conclusion that "the sole reason for [Odon's] non-selection was his protected activity." Decision at 11.

      I would be more inclined to agree with the Judge if all that the probative evidence in the record revealed was that Smith taunted Odon on a number of occasions about Odon's non-selection based upon his union activity. That evidence, by itself, certainly could sustain finding a § 7116(a)(2) violation if there was little else to shed light on why the Respondent might not have selected Odon in any event, but that is not the case. To the contrary, and as found by the Judge,

there were various sound reasons for not choosing Mr. Odon which had no relation to his protected activity. For example, his tardiness problem; his refusing a direct order to perform work for which he received a three day suspension[.]

Decision at 6. Earlier, the Judge made the following findings regarding Odon's work abilities:

While there is no question of Mr. Odon's knowledge and ability to perform . . . , there is a great deal of evidence and testimony demonstrating his aversion to performing those duties. For example, . . . Mr. Odon's quality of work is very low; that Mr. Odon likes to stand around and to avoid work (Tr. 352); that Mr. Odon was caught more than once watching TV during the workday (Tr. 375); that the TV was taken away and Mr. Odon brought in another TV (Id.).

Decision at 4-5.

      Additionally, while the Judge found that there were several reasons why Odon would not be a good selection, the Judge also found that there were several good reasons why the individual actually chosen would be a good selection. The Judge noted the following:

Although Mr. Odon had many more years experience as a Cemetery Caretaker, he was not better qualified for this particular job than [the selectee], as Mr. Odon had not taken the training provided by the Sheriff's Department for supervising SWAP workers [San Mateo County Sheriff's Work Program for persons sentenced for community service for criminal or civil infractions (Tr. 356-57)] whereas, [the selectee] had.

Decision at 5. As found by the Judge, the whole rationale for the position in question was to supervise a weekend shift of 35 to 40 SWAP people who could be made available if there was someone present to supervise them. Decision at 6. The Judge found further that, prior to the establishment and filling of the dedicated weekend supervisory position at issue here, the supervisory position to oversee the SWAP personnel was first filled by current supervisors rotating in, then by volunteers, and that the selectee had been one of the few to volunteer to handle that responsibility. Id. The Judge further found that the eventual selectee had received training for about a year "on the different duties of keeping equipment up, the vehicle for transporting SWAP people to different sites, etc." Id. In terms of other relevant experience, the Judge also noted that the eventual selectee

had taken over the trimming crew, which is run by SWAPs (Tr. 599), and after training by Foreman Smith, [the selectee] had performed the job for six months, or more, and under Mr. Smith's supervision for another year (Tr. 599).

Id. In describing the strength of the eventual selectee's qualifications for the position, the Judge specifically quoted the witness who testified that, as to the eventual selectee's performance in handling the volunteer weekend supervisory oversight of the SWAPS, the eventual selectee had "`just took it and ran with it.'" Id. (quoting Tr. at 548).

      While it is clear that the Judge was aware of Odon's less than stellar work history, especially when compared to the selectee, it is also clear that higher level management was aware of this and, as the Judge noted this higher level management could have rejected the selection decision that Foreman Smith and Foreman Ryan provided to Mr. Fitzgerald (higher level management) for approval. There has been no showing that higher level management acted based upon Odon's protected activity and the Judge expressly found that only Foremen Smith and Ryan (and not higher level management) acted based upon Odon's protected activity.

      While I have no doubt that Foreman Smith's activity violated § 7116(a)(1), I cannot justify Odon's nonselection as being based upon his protected activity given his work history when compared to the selectee's. Therefore, I would not find a violation of § 7116(a)(2).


File 1: Authority's Decision in 59 FLRA No. 171 and Opinion of Chairman Cabaniss
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 171 - Authority's Decision

   Chairman Cabaniss' opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 171 - Authority's Decision

   The complaint at issue in this case, SF-CA-02-0126, was consolidated with the complaints in SF-CA-02-0286 and SF-CA-02- 0649 for hearing. The Judge found that the Respondent violated the Statute with regard to the allegations in SF-CA-02-0286 and ordered that a letter of admonishment issued to the chief steward be rescinded and expunged from all records. The Judge found that the Respondent did not violate the Statute with regard to the allegations in SF-CA-02-0649 and dismissed that complaint. As no exceptions were filed with respect to the Judge's findings and conclusions in SF-CA-02-0286 and SF-CA-02-0649, we adopt them without precedential significance pursuant to § 2423.41(a) of the Authority's Regulations. See, e.g., United Stated Dep't of the Air Force, Seymour Johnson Air Force Base, 57 FLRA 884, 884 n.2 (2002).


Footnote # 3 for 59 FLRA No. 171 - Authority's Decision

   The Judge found that although the chief steward had many more years experience as a Cemetery Caretaker than the other applicant, the chief steward was not better qualified for this particular job because the chief steward had not taken the training provided by the Sheriff's Department for supervising SWAP workers, whereas the other applicant had. See Judge's Decision at 5.


Footnote # 4 for 59 FLRA No. 171 - Authority's Decision

   The Judge found that Foreman Smith "credibly testified that he, with [Forema