United States, Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida (Respondent) and American Federation of Government Employees, Local 1942 (Charging Party/Union)

[ v60 p620 ]

60 FLRA No. 125

UNITED STATES
DEPARTMENT OF THE AIR FORCE
EGLIN AIR FORCE BASE
EGLIN AIR FORCE BASE, FLORIDA
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1942
(Charging Party/Union)

AT-CA-02-0595

_____

DECISION AND ORDER

February 17, 2005

_____

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 an exception to the attached decision of the Administrative Law Judge filed by the Respondent.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by lowering the Union President's performance appraisal in retaliation for his protected activity. [n2] The Judge found that the Respondent violated the Statute as alleged.

      Upon consideration of the Judge's decision and the entire record, we conclude for the reasons discussed below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we will dismiss the portion of the complaint alleging a violation of § 7116(a)(1) and (2) of the Statute.

II.      Background and Judge's Decision

      The facts are fully set out in the Judge's decision and are only briefly summarized here. The Union President, a nurse assigned to the Respondent's operating room, received a letter of counseling in October 2001, during the 2002 performance year. The letter, which was authored by the Union President's third-line supervisor, advised the Union President that numerous of his co-workers viewed his behavior on the job as "overly aggressive, disrespectful to others and disruptive[,]" which created a hostile work environment. Judge's Decision at 5. The letter also stated that the Union President frequently lost his temper, went into "tirades," and "deride[d] others" and that he was "verbally abusive." Id. at 4-5. The Union President filed an informal grievance over the counseling, but the counseling was upheld.

      Also during the 2002 performance year, the Union President was allowed to use six hours of official time per week. In December 2001 and January and February 2002, the Union President "began requesting additional official time . . . ." Id. at 5. The Union President's third-line supervisor sent him an email addressing "last minute requests for [additional] official time" and indicating that "five (5) days lead time" was needed "to balance . . . mission requirements while considering time away from work requests for anyone." Id. at 5-6. Two weeks later, the third-line supervisor followed up with another email reiterating the need for advance notice for additional official time and setting forth his expectation that the Union President adhere to "the same performance and conduct standards as other personnel assigned to [the] organization." Id. at 6. The Union President was never denied any of his requests for additional official time.

      On January 29, the Union President's immediate supervisor met with him for his quarterly performance discussion. No performance issues were raised during that meeting. Subsequently, in draft form, the immediate supervisor rated each individual element of the Union President's performance plan as "exceeds," which would have resulted in an overall rating of "superior." Id. at 8. She also included explanatory language supporting the ratings. However, the third-line supervisor advised her to "rethink portions of the appraisal and . . . take the counseling into consideration." Id. Thereafter, the immediate supervisor lowered each individual element to "met" but she left the explanatory language intact. Id. At the hearing, she explained that she considered [ v60 p621 ] the Union President's "demeanor and how he interacted with other staff and that there were difficulties working with him that she could not ignore as a supervisor." Id. at 9. After reviewing the revisions, the third-line supervisor raised one element from "met" to "exceeds[,]" but eliminated the narrative statements "since explanatory language is not required." Id. at 8. Consequently, the Union President received an overall rating of "fully successful" and he did not receive a performance award. Id. at 10.

      The Union filed a charge, and the GC issued a complaint, alleging, as relevant here, that the Respondent violated the Statute by lowering the Union President's performance appraisal because of his protected activity.

      Applying the Authority's framework established in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Judge found that the GC established a prima facie case of discrimination based on protected activity. Initially, the Judge found that it was "undisputed" that the Union President "engaged in protected activity . . . ." See id. at 14. Moreover, the Judge found that the Union President and his third-line supervisor "had engaged in escalating conflict over the issues of official time and [the Union President's] perceived inappropriate behavior." Id. at 14-15. The Judge found that the Union President's increased "need for official time . . . intensified" the overall conflict. Id. at 15.

      Consistent with the foregoing, the Judge found "substantial evidence of the [third-line supervisor's] frustration with the [Union President's] increased need" for official time. Id. This frustration, according to the Judge, "was a motivating factor in [the Union President's] lowered performance appraisal." Id.

      Turning to the Respondent's affirmative defense, the Judge noted the immediate supervisor's testimony that she considered the Union President's counseling and certain "unspecified complaints about him during the year[,]" as well as "his performance." Id. at 16. However, the Judge found "no evidence that [the Union President] was ever counseled or even criticized regarding his work performance during the rating period." Id. In this connection, the Judge noted that the Union President's "immediate supervisor had even worked to increase his grade during this period." Id. According to the Judge, the Union President's behavior "appears" to have "sometimes bordered on abusive[,]" but given that "he was only counseled once about this behavior[,]" the Judge did not find "sufficient explanation for the lowered appraisal." Id. Accordingly, the Judge found that the Respondent did not establish that it would have rated the Union President the same even in the absence of protected activity.

      Thus, the Judge found that the Respondent violated § 7116(a)(1) and (2) of the Statute. To remedy the violations, the Judge recommended ordering the Respondent to rescind the Union President's performance appraisal and reevaluate him without considering his protected activity, as well as a cease and desist order and a notice to be posted for all employees.

III.      Positions of the Parties

A.     Respondent's Exceptions

      The Respondent disputes the Judge's finding that the GC established a prima facie case of unlawful discrimination. According to the Respondent, the Judge failed to find that the lowered performance appraisal was motivated by anti-union animus, as required by United States Dep't of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, S.C., 56 FLRA 927 (2000) (Charleston Air Force Base). In this connection, the Respondent asserts that neither the immediate supervisor nor the third-line supervisor had anti-union animus. In addition, the Respondent asserts that both supervisors testified that the third-line supervisor did not direct the immediate supervisor to lower the Union President's performance appraisal. In support of this claim, the Respondent notes that the immediate supervisor changed elements "that she and [the third-line supervisor] had not discussed." Exception at 14.

      The Respondent claims the Judge's decision is not supported by the third-line supervisor's decision to eliminate the narrative comments from the Union President's performance appraisal. In this regard, the Respondent claims the supervisor was merely complying with the Respondent's policy, consistent with the rating form's instructions, "that elements rated as met not be accompanied by comments . . . ." Id. at 15. Also, according to the Respondent, the closeness in time of the Union President's increased protected activity and the lowered performance appraisal is insignificant because performance appraisals occur at the same time each year.

      The Respondent also disputes the Judge's finding that an "`escalating conflict' . . . over official time" motivated the lowered performance appraisal. Id. at 16. According to the Respondent, the conflict between the Union President and the third-line supervisor was "actually over last minute requests for official time [which] created scheduling problems" affecting "the hospital's mission . . . ." Id. The Respondent notes the Judge's [ v60 p622 ] acknowledgment that the Union President "always received the additional official time" he requested. Id.

      In addition, the Respondent disputes the Judge's finding that it did not establish its affirmative defense. According to the Respondent, the evidence shows that the Union President's performance appraisal was lowered because "management did not like the way he interacted with subordinates, co-workers, and superiors." Id. at 22. The Respondent argues that it demonstrated "a legitimate justification" for the Union President's lowered performance appraisal and established that the immediate supervisor "would have reached the same rating decision even absent any discriminatory animus . . . ." Id.

B.      GC's Opposition

      The GC argues that the Judge's finding of a violation is "well-supported by the factual record and the law." Opposition at 3. As to the law, the GC cites private sector precedent holding that "an employer may not `launder the `bad' motives of certain of its supervisors' by having the discriminatory action carried out by someone neutral within the organization." Id. (citing Boston Mutual Life Ins., Co., 692 F.2d 169, 171 (1st Cir. 1982)). As to the facts, the GC claims the evidence demonstrates that the third-line supervisor harbored anti-union animus toward the Union President, and the Union President's performance appraisal was lowered after he told the immediate supervisor to "rethink her position." Id. at 4. According to the GC, this demonstrates "a causal relation between the animus and the discriminatory action." Id.

      The GC argues that the Judge's finding of an escalating conflict over official time is supported by testimony at the hearing, as well as several e-mails relied on by the Judge. Therefore, according to the GC, it is irrelevant whether the third-line supervisor ordered the immediate supervisor to lower the Union President's performance appraisal. See id. at 6.

IV.      Analysis and Conclusions

      In Letterkenny, the Authority articulated its analytical framework for addressing allegations of discrimination claimed to violate § 7116(a)(2) of the Statute. Under that framework, the GC has the burden to establish by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. See Indian Health Serv., Crow Hosp., Crow Agency, Mont., 57 FLRA 109, 113 (2001); Letterkenny, 35 FLRA at 118. Once the GC makes the required prima facie showing, the respondent may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken in the absence of the protected activity. See id. If the respondent establishes an affirmative defense, then the Authority will conclude that the GC has not established a violation of the Statute. See Letterkenny, 35 FLRA at 119.

      There is no dispute that the Union President engaged in protected activities, and the Judge found that the GC established a prima facie case that these protected activities motivated the Respondent's decision to lower the Union President's performance appraisal. We find it unnecessary to determine whether the Judge's conclusion in this regard is correct because, even assuming a prima facie case was established, we conclude, for the reasons that follow, that the Respondent established its affirmative defense.

      The Respondent presented evidence that it lowered the Union President's performance appraisal because of his "abusive" and "disruptive" behavior. Judge's Decision at 5. In this connection, the record shows that the Union President received a letter of counseling concerning his behavior, which the Judge found "sometimes bordered on abusive." Id. at 16. We note that the counseling letter was upheld by the Respondent in an informal grievance. Moreover, the letter of counseling was issued in October 2001, two months before the Union President began requesting additional official time, which is at the heart of the Judge's finding of a violation.

      The Judge found the letter of counseling unpersuasive to demonstrate that the Respondent had a valid reason to lower the appraisal because the Union President was only counseled once about his behavior. However, neither the Judge nor the GC cites any requirement that behavior issues must be part of any counseling -- let alone multiple counselings -- before they can be considered in an employee's performance appraisal. Therefore, we conclude that the Respondent properly based the lowered performance rating on the Union President's behavior that was addressed in the letter of counseling.

      The Judge found significant the fact that the Union President's supervisors had worked during the performance year to upgrade his position. However, there is no requirement that an employee must be performing at an outstanding -- as opposed to fully successful -- level before his or her position can be upgraded. Moreover, [ v60 p623 ] a review of the "Position Evaluation Summary" used to classify the position shows that the Union President's performance level was not a factor in the Respondent's classification decision. Respondent's Ex. 7. Nevertheless, even assuming performance level is a relevant factor, that fact would not establish a violation of the Statute in this case because the Union President's position ultimately was not reclassified. See Judge's Decision at 4. We note that there is no indication or allegation that the Respondent's classification decision was improper.

      Finally, the Judge considered the third-line supervisor's removal of the narrative statements from the Union President's performance appraisal as evidence of unlawful motive. However, consistent with the express instructions on the appraisal form, there is no dispute that such statements are not required for ratings of "met." GC Exh. 54.

      We find that a preponderance of the record evidence demonstrates that the Union President's inappropriate behavior, and not his protected activities, motivated his lowered performance appraisal. In so finding, we agree with the Respondent that behavior on the job is a valid consideration for evaluating job performance. Indeed, even the Judge found that the Union President's inappropriate behavior was an "issue" that the Respondent "attempted to deal with." Judge's Decision at 16. The Respondent has established that it properly dealt with that issue by lowering the Union President's performance appraisal. Accordingly, we conclude that the GC has not met its burden of proof that the Respondent violated § 7116(a)(1) and (2) of the Statute.

      Finally, having found that the Respondent did not violate § 7116(a)(1) and (2) of the Statute, we must nonetheless address the matter of a remedy for the violation of § 7116(a)(1) and (5) of the Statute, to which the Respondent did not except. See supra, slip op. at 2 n.2.

      The Judge ordered the Respondent to: (1) cease and desist from making changes to the Union President's performance standards without giving the Union notice and an opportunity to bargain, as required by law; (2) rescind the performance standards that were used during the 2001-2002 performance year; and (3) notify the Union before implementing new standards. As noted, there was no exception to this remedy, which the Authority has ordered in similar situations. See, e.g., United States Dep't of Housing and Urban Development, 56 FLRA 592 (2000); 56th Combat Support Group (TAC) MacDill Air Force Base, Fla., 43 FLRA 434 (1991). Accordingly, we will direct the Respondent to take such action consistent with the Judge's decision.

      However, we modify the Judge's remedy to exclude portions that relate to the alleged violation of the Statute that the Judge found but which we are dismissing. In this regard, the Judge ordered the Respondent to cease and desist from discriminating against the Union President based on his protected activity, to rescind the performance appraisal he had been given for the 2001-2002 performance year, and to reevaluate his performance using the prior performance standards without any consideration of protected activity. As explained above, we have determined that the Respondent did not discriminate against the Union President. Therefore, we strike from the Judge's remedy all references to discrimination based on protected activity. We leave intact the portion of the Judge's remedy requiring the Respondent to reevaluate the Union President using the previous performance standards. We do so because, as found by the Judge and not excepted to by the Respondent, the evaluation given to the Union President for performance year 2001-2002 was based on performance standards that were unlawfully implemented. Thus, an appropriate remedy is to require the Respondent to reevaluate the Union President's performance, including the issue of inappropriate behavior discussed above, based on the previous standards.

V.      Order

      Pursuant to § 2423.41(c) of the Regulations of the Federal Labor Relations Authority and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, shall:

      1.      Cease and desist from:

           (a)      Making changes to the Union President's performance standards without giving the AFGE, Local 1942 (Union) notice and the opportunity to bargain to the extent required by law.

           (b)      In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.      Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

           (a)      Rescind the performance standards found in the new core document used for the Union President's appraisal during the 2001-2002 performance [ v60 p624 ] year and reinstate the Union President's prior performance standards. Provide proper notice and opportunity to bargain to the Union before implementing new performance standards for the Union President's position.

           (b)      Rescind the performance appraisal given to the Union President for performance year 2001-2002. Reevaluate the Union President, using the previous performance standards.

           (c)      Post at the United States Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, where bargaining-unit employees are located, 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 Commander, Eglin Air Force Base, 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 ensure that such Notices are not altered, defaced, or covered by any other material.

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

      The remaining portion of the complaint alleging a violation of § 7116(a)(1) and (2) of the Statute is dismissed.


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 the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, 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 make changes to the Union President's performance standards without giving the AFGE, Local 1942 notice and the opportunity to bargain to the extent required by the Statute.

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 rescind the performance standards found in the new core document used for the Union President's appraisal during the 2001-2002 performance year and reinstate the Union President's prior performance standards.

WE WILL provide proper notice and opportunity to bargain to the Union before implementing new performance standards for the Union President's position.

WE WILL rescind the performance appraisal given to the Union President for performance year 2001-2002 and WE WILL reevaluate the Union President, using the previous performance standards.

      ______________________
(Activity)

Date: __________ 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 any of its provisions, they may communicate directly with the Regional Director, Boston Region, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and telephone number is: 617-424-5730. [ v60 p625 ]


Dissenting Opinion of Member Pope:

      I disagree with my colleagues that the GC failed to establish the violation at issue in the Respondent's exception.  In my view, a preponderance of the record evidence supports the Judge's conclusion that the Union President's lowered performance appraisal was in retaliation for his protected activities. Therefore, I would leave intact, and not modify, the Judge's recommended order.

      The Judge found that the third-line supervisor's "frustration" with the Union President's official time use "was a motivating factor in [the] lowered performance appraisal." Judge's Decision at 15. In this regard, the Judge found that the Union President and his third-line supervisor had an "escalating conflict" over the Union President's need for official time, which "intensified" the more his "need for official time increased[.]" Id. This frustration is clearly established in the record, which contains several e-mails demonstrating the parties' ongoing conflict over official time. See GC's Exh. 2, 3, 4, 5, 9, and 24. In fact, the Respondent acknowledges the parties' ongoing conflict over the Union President's "last minute requests for official time[,]" which the Respondent claims "created scheduling problems" for the unit. Exception at 16. Although the Respondent attempts to characterize the conflict in terms of timeliness of the Union President's requests for official time, I find that the precise nature of the conflict is immaterial, as it is clear that the conflict involved the Union President's use of official time. Most importantly, there is no dispute that the immediate supervisor initially rated the Union President "exceed" in every performance factor, consistent with his stellar record over the prior five years and then lowered the performance appraisal only after the third-line supervisor -- who was frustrated with the Union President's use of official time -- instructed her to "rethink" the appraisal. Judge's Decision at 8.

      The Judge's finding of a violation in these circumstances is consistent with Authority precedent finding a prima facie showing of discrimination where a supervisor lowered an employee's rating based in part on timeliness of her work after making a statement to the employee "linking official time usage to [the] lack of timeliness . . . ." United States Dep't of Agric., United States Forest Serv., Frenchburg Job Corps, Mariba, Ky., 49 FLRA 1020, 1024, 1032-33 (1994); see also Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 35 FLRA 891, 900 (1990) (prima facie case established where supervisor connected employee's protected activities with his chances of obtaining a higher performance appraisal). Similarly, a prima facie case was established when a supervisor lowered an employee's performance rating shortly after the employee filed a grievance, where the supervisor expressed chagrin over that filing, and where the supervisor testified that the employee's performance was "great" and had remained the same during the later appraisal period. 22nd Combat Support Group (SAC), March Air Force Base, Cal., 27 FLRA 279, 283-85 (1987).

      For the following reasons, I find that the Respondent did not establish its affirmative defense. The Respondent claimed that it lowered the appraisal because the Union President had not performed his job as well as he had in years past, and because of the Union President's abusive behavior at work. In rejecting the Respondent's asserted affirmative defense, the Judge found "no evidence that [the Union President] was ever counseled or even criticized regarding his work performance during the rating period" and that his "immediate supervisors had even worked to increase his grade during this period." Judge's Decision at 16. The Judge also found "little specific evidence relating to [the Union President's] behavior" to justify the lowered rating, noting that the Union President was counseled only once about his behavior. Id. at 15.

      I find that the record supports the Judge's findings, as neither of the Respondent's asserted reasons for lowering the appraisal withstands scrutiny. In this regard, there is no evidence that the Union President had any job performance problems. In fact, I find the record contains absolutely no evidence that the Respondent ever criticized the Union President's work, and there is no dispute that there were no "performance issues" raised at his performance meeting in January 2002, just prior to his performance appraisal. Id. at 8.

      In addition, while there is a letter of counseling dated October 2001 addressing the Union President's behavior on the job, there is no evidence to support the Respondent's bare assertion that this was the basis for its decision to lower the Union President's performance appraisal. In this connection, it is reasonable to conclude that, if the Union President's behavior was such a problem that it could jeopardize every element of his performance appraisal and his potential to receive a performance award, as he had received for the past five years, then the issue would have been at least mentioned during his January performance meeting. Nevertheless, there is no dispute that the issue was not raised either directly or indirectly. There is, likewise, no other support in the record for the Respondent's claim that it lowered the performance appraisal because of the Union President's behavior.

      Based on the foregoing, I find that a preponderance of the record evidence supports the Judge's conclusion that the Union President's performance appraisal was lowered in retaliation for his protected activities. Consequently, I cannot join with the majority's decision to dismiss the complaint in this case. Therefore, I dissent.


File 1: Authority's Decision in 60 FLRA No. 125
File 2: ALJ's Decision


Footnote # 1 for 60 FLRA No. 125 - Authority's Decision

   Member Pope's dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 125 - Authority's Decision

   The complaint also alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to notify the