United States, Department of Justice, Federal Bureau of Prisons, United States Penitentiary (Administrative Maximum), Florence, Colorado (Respondent) and American Federation of Government Employees, Local 1302, (Charging Party/Union)
[ v60 p752 ]
60 FLRA No. 144
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
UNITED STATES PENITENTIARY
OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
March 22, 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 exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel. The Respondent filed an opposition.
The complaint alleges an independent violation of § 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) based on a statement by one of the Respondent's management officials and a violation of § 7116(a)(1), (2), and (4) for a failure to promote an employee. The Judge concluded that the complaint should be dismissed. For the following reasons, the General Counsel's exceptions are denied.
II. Background and Judge's Decision
The facts of this case are fully set forth in the Judge's Decision and will only be summarized here.
During the period covered by the complaint in this case, Eric Nicholls was a GS-7 Senior Officer at the U.S. Penitentiary (Administrative Maximum), Florence, Colorado (ADX). In February 2001, Nicholls applied for a GS-8 Senior Officer Specialist position. There were 35 applications for the five positions noted in the announcement; 20 candidates, including Nicholls, made the Best Qualified list; and 13 candidates were selected. Nicholls was not among those selected. During the selection process Nicholls met with the Warden at ADX, Michael Pugh, to discuss an aspect of the process and, just after the process was completed, they met again to discuss Nicholl's nonselection. In 1999, Nicholls had filed an unfair labor practice charge against Pugh, which resulted in a finding of a violation and an order which Pugh was required to sign and post at the facility. United States Penitentiary, Administrative Maximum, Florence, Colo., FLRA ALJ Dec. Rep. No. 151, Case No. DE-CA-90530. The events that transpired at the meetings between Nicholls and Pugh, and their relationship to the unfair labor practice proceeding in 1999, constitute the basis for the instant complaint.
More particularly, in 1998 and 1999, Nicholls, who was a member of the Union, but not an officer, posted several messages in the Guest Book on the Union's website. The messages expressed support for the Union. At about the same time, Pugh became warden at ADX and immediately began to combat what he believed to be corruption at the institution, particularly among Union officers. He also became aware of the Union's Guest Book and made copies of all the entries in that file.
Pugh held "get acquainted" meetings with individual officers during this period and, in August 1999, while a Quality Step Increase (QSI) was pending for Nicholls, Pugh met with him. Pugh allegedly told Nicholls initially that, based on his entries in the Guest Book, he did not consider Nicholls a "loyal" employee and found him undeserving of a QSI. Judge's Decision at 3. In this conversation, Pugh also discussed his views as to alleged corruption at ADX and the role of the Union in that corruption. At the end of the meeting, Pugh told Nicholls that "his slate was clean" and that he would receive his QSI. Id. at 3.
An unfair labor practice complaint was issued based on this meeting and a similar meeting with another employee. Crediting Nicholls' testimony over Pugh's denials that he had questioned the employees' loyalty, an administrative law judge found that the agency had violated § 7116(a)(1) of the Statute "by telling Nicholls and [the other employee] that they initially did not receive QSIs because of their comments on the Union's website[;] . . . by telling them that he was monitoring the website and would consider those postings in regard to employees' conditions of employment; and by [ v60 p753 ] telling them that key Union leaders and the Union itself were corrupt." Id. at 4. No exceptions were filed to this decision and it became final in June 2000.
As noted above, in February 2001, Nicholls applied for a GS-8 Senior Officer Specialist position. Based on his score as a result of the rating and ranking process, he was listed as the eighth most qualified applicant out of 20 on the Best Qualified List. During his tenure as warden, Pugh had consistently emphasized to employees that there were four factors he considered in taking promotion actions: (1) performance appraisals for the previous and current performance years; (2) sick leave records; (3) post assignment history--in particular, whether an employee had been assigned to posts involving inmate contact and supervision; and (4) input from the Lieutenants, obtained at a meeting in which they expressed their opinions of the candidates. Pugh maintained a list of all the candidates for the position and his summary handwritten assessment of each of them under these four criteria. See Respondent's Exhibits 1 and 2.
Because his current assignment was in a tower, Nicholls was concerned that it would affect Pugh's assessment of his assignment history and he scheduled a meeting with Pugh, on February 26, 2001, to clarify that history. As a result of that meeting, Pugh assured Nicholls that he would "probably" be selected. Judge's Decision at 7. The meeting was also attended by the Union President, at Pugh's request, because Pugh was not sure that he could trust Nicholls.
When he was not selected, Nicholls scheduled another meeting with Pugh in order to discover why he had not been selected. Prior to the meeting, Nicholls asked the Lieutenants for whom he had worked why he had not been promoted. He was told by the Lieutenants that they supported him and they did not understand why he had not been selected. Nicholls and Pugh met on May 3, 2001, and, when Nicholls asked why he had not been promoted, Pugh replied, according to Nicholls, that he had to be careful what he said to Nicholls, "because he could say one thing and it could be interpreted in a different way later[.]" Id. Pugh explained the four criteria he used to evaluate candidates and showed Nicholls his list and noted that Nicholls "had not stood out in any of those areas[.]" Id. at 8. Nicholls showed Pugh a summary of his assignment history and informed Pugh of the results of his conversations with the Lieutenants. Each party then accused the other of "calling him a liar." Id.
According to Nicholls, he next asked Pugh if Pugh considered him a member of the group with which Pugh was angry. In his testimony at the hearing in this case, Nicholls stated that Pugh indicated that there was a core inner group of people who had opposed him from the beginning and an outer ring that had been sympathetic with that inner group. Nicholls also stated that Pugh asserted, as to the inner group, that he would "never do anything to help them in their career." Id. In his testimony, Pugh claimed that he had said nothing about an inner group and an outer group at the meeting on May 3. He did state more generally that when he became warden there was a small group of officers who opposed his attempts to reform the prison, but that he did not consider Nicholls to be a part of that group. He also stated that he would not do anything for the core group in connection with their jobs. On the other hand, he indicated that he would remove himself from any personnel action pertaining to that group.
Subsequently, the General Counsel issued a complaint alleging that the Respondent: (1) violated § 7116(a)(1) of the Statute when Pugh stated to Nicholls that, because of Nicholls' protected activity, he would never do anything to help Nicholls in his career; and (2) violated § 7116(a)(1), (2), and (4) when Pugh failed to select Nicholls for the Senior Office Specialist position because of Nicholls' protected activity.
B. Judge's Decision
1. Alleged Violation of § 7116(a)(1)
Citing Dep't of the Air Force, Ogden Air Logistics Ctr., Hill AFB, Utah, 35 FLRA 891 (1990) (Hill AFB), the Judge set forth the Authority's test for determining whether statements by or conduct of an agency representative has violated employee rights under the Statute. Specifically, the test involves an inquiry into "whether . . . the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement [or conduct.]" Judge's Decision at 12 (quoting Hill AFB, 35 FLRA at 895-96).
The Judge credited Nicholls' testimony that Pugh had made statements about "being unwilling to help a small group of officers in their careers." Judge's Decision at 13. He found, however, that those statements were made "in a context that was not coercive" and concluded that the Respondent had not violated § 7116(a)(1) of the Statute.
Specifically, the Judge found that Nicholls scheduled the meeting to discover why he had not been promoted and, when Pugh's explanations were not satisfactory, Nicholls steered the conversation toward the issue of Pugh's motives. According to the Judge, in [ v60 p754 ] such circumstances, it would have been difficult for Pugh to avoid discussing that issue. The Judge noted that, although Pugh denied saying to Nicholls he would not help the careers of the core group, his testimony to the same effect in another context was similar to what Nicholls reported of their conversation. The Judge concluded that, at some point, Pugh made such a statement to Nicholls.
The Judge also found that "the full context" of their conversation on May 3 supports the conclusion that Pugh emphasized to Nicholls that he did not consider Nicholls to be a part of that group "and that he harbored no animosity to him." Id. at 14. Moreover, the Judge found that Pugh never mentioned Nicholls' protected activity in anything he said to Nicholls. The Judge distinguished the May 3 conversation from the meeting involved in the 1999 unfair labor practice, wherein Pugh was found to have explicitly mentioned Nicholls' statements on the Union website. The Judge refused to conclude that the coercion explicit in Pugh's 1999 comments should be read into his statements in the May 3 meeting. According to the Judge, "[t]he only reasonable objective interpretation of the May 3 conversation is that when Nicholls accused him of retaliation, [Pugh] told Nicholls he did not consider him to have done anything objectionable or worthy of retaliation." Id. at 15. The Judge found that the Respondent did not violate § 7116(a)(1).
2. Alleged Violation of § 7116(a)(1), (2), and (4)
Citing Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) and Dep't of Veterans Affairs Medical Ctr., Brockton and West Roxbury, Mass., 43 FLRA 780 (1991), the Judge set out the framework for analyzing claimed violations of § 7116(a)(2) and (4) of the Statute, which, on different grounds, prohibit agencies from discriminating against employees. Specifically, in such cases, the General Counsel bears the ultimate burden of establishing, by a preponderance of the evidence, that a violation has been committed. The General Counsel bears the initial burden of establishing a prima facie case by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in an activity protected by the Statute; and (2) such protected activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment. If the General Counsel establishes a prima facie case, the burden shifts to the Respondent to rebut that prima facie case by establishing the affirmative defense that: (1) there was a legitimate justification for its actions; and (2) the same action would have been taken in the absence of the protected activity.
According to the Judge, the essential issue in the case is whether Nicholls' protected activity in the 1999 unfair labor practice case was a motivating factor in Pugh's decision not to promote him. In this regard, the Judge stated that "[t]he totality of th[e] evidence" created a "lingering suspicion" of Pugh's motives and, in the absence of any evidence from the Respondent as to those motives, he would have found that Pugh's failure to promote Nicholls was as a result of Nicholls' protected activity in 1999. Id. The Judge considered the Respondent's evidence as to Pugh's motivation in connection with the second element of the General Counsel's prima facie case.
Although the Judge recognized that Nicholls' "successful pursuit of an unfair labor practice" in 1999 "give[s] rise to an inference of an improper motive," the "relatively long period of time" between that incident and the promotion decision led the Judge to find that, by 2001, Pugh became convinced "that Nicholls had not been trying to undermine his reform efforts and did not include Nicholls among his opponents". Id. at 16. In addition, the Judge found that the General Counsel's emphasis on Nicholls' protected activity was "exaggerated" because, in fact, "Nicholls had very little public involvement with the Union[.]" Id. According to the Judge, as far as Pugh was concerned, the main result of the 1999 unfair labor practice was that "he wanted to be careful in his dealings with Nicholls[.]" Id. at 16-17. [n2] The Judge also noted evidence as to two other employees who had challenged disciplinary actions initiated by Pugh through the grievance procedure, but who were among those promoted when Nicholls was not. The Judge concluded that this, and "other circumstantial evidence," indicated that Pugh was "able to make promotion selections without considering employees' protected activity." Id. at 17.
Further, the Judge found the four criteria that Pugh used to assess candidates for promotion "to be relevant factors." Id. at 17. He also noted that those criteria "had been cited and reiterated by [Pugh] to the entire correctional staff on many previous occasions." Id. at 18. He concluded that the crucial determination was whether Respondent's Exhibits 1 and 2, the lists developed by Pugh to summarize information as to each candidate under the four criteria, are "persuasive evidence corroborating [ v60 p755 ] Pugh's testimony as to how he made his selections." Id. at 19. The Judge found that the records fit within the "business records exception to the hearsay rule" and gave them "significant probative weight[.]" Id. In particular, he found that, because the lists were prepared by Pugh contemporaneously with the selection process, they would be more accurate representations of the information prepared for Pugh by the Administrative Lieutenant or views of the Lieutenants expressed to Pugh at that time than would be the testimony of those officials during the hearing in the case.
The Judge noted that the General Counsel's view of the lists would require him to find that Pugh consciously fabricated the information about Nicholls on the list in order to cover up his discriminatory intent. In the absence of such falsification, the Judge found that the lists corroborated Pugh's view that Nicholls did not have a strong record in any of the criteria. The Judge also found that there was independent corroboration of that conclusion in other exhibits. For example, the Judge found that Nicholls did not dispute the record of his performance appraisals on the list and that his two ratings of "Exceeds" placed him "well down in the lower half of the group in that category." Id. at 20. He also noted that "Nicholls did not dispute the factual assertions of Pugh's testimony about his leave balance[.]" Id. As to Nicholls' assignment record, the Judge found that the assessment provided Pugh by the administrative Lieutenant differed from that to which Nicholls testified. The Judge noted that neither party "offered any supporting data to corroborate their witnesses' respective testimony[,]" and concluded that he could not "discount Pugh's assertion that he considered Nicholls' record in this area to be neither positive or negative." Id. at 21.
Noting the potential for fraud and abuse in Pugh's record-keeping methods, the Judge nevertheless found no basis for concluding that Pugh had falsified information about Nicholls on his lists when he recorded a negative consensus for Nicholls among the Lieutenants. The Judge gave no weight to Nicholls' testimony regarding his conversations with the Lieutenants because he concluded that the Lieutenants would not have given Nicholls an accurate account of what transpired at the Lieutenants' meeting with Pugh. He found, in this regard, that Pugh's contemporaneous lists were the "best available evidence" of what the Lieutenants reported to Pugh. Id. at 22.
In sum, the Judge concluded that, where the entries on the lists could be independently and objectively corroborated, they appeared accurate. Moreover, the Judge found, "[i]f Pugh were to have falsified Nicholls' scores, he would also have to falsify scores for all other unsuccessful applicants, any of whom might challenge the decision." Id. at 23. He concluded, based on all the evidence, that Pugh's lists were "reliable records of the information that [he] used to make his promotion selections, and that they support his testimony that Nicholls did not meet his criteria for promotion." Id. Consequently, the Judge found that Nicholls' protected activity was not a motivating factor in Pugh's decision not to promote him and concluded that the complaint should be dismissed.
III. Positions of the Parties
A. General Counsel's Exceptions
1. Alleged Violation of § 7116(a)(1)
The General Counsel excepts to the Judge's finding that Pugh's statements to Nicholls at the May 3 meeting, particularly about a core group of employees for whom he would do nothing to aid their careers, were not coercive. According to the General Counsel, Pugh's testimony demonstrates that he did include Nicholls among that group. Moreover, the General Counsel contends, by his testimony, Pugh made clear that he "punishes employees who support the Union and oppose him[.]" General Counsel's Exceptions (Exceptions) at 12. Further, since Nicholls' and Pugh's "limited dealings" consisted "exclusively" of matters relating to Nicholls' exercise of protected activity, the General Counsel maintains that it would be reasonable for Nicholls to conclude that Pugh's statement was intended to communicate that Pugh would punish him in some way for that activity. Id. The General Counsel asserts that, given this evidence, the Judge erred by failing to find a violation of § 7116(a)(1) of the Statute based on Pugh's statements to Nicholls.
2. Alleged Violation of § 7116(a)(1), (2), and (4)
The General Counsel argues, first of all, that the Judge misapplied the Authority's Letterkenny framework. In particular, the General Counsel contends that the Judge erred as a matter of law by considering the Respondent's alleged legitimate justification before determining whether the General Counsel's evidence established a prima facie violation of the Statute. According to the General Counsel, the Letterkenny framework contains "precise steps" that must be "followed closely in order to keep track of the shifting burden of proof." Exceptions at 15. The General Counsel contends that the Judge deviated from these precise steps and did not explain why he was doing so. The result, asserts the General Counsel, is that the Judge's [ v60 p756 ] approach "effectively decreases or eliminates Respondent's obligation to rebut the showing of a prima facie violation of law by a preponderance of the evidence." Id. at 15-16. Thus, the General Counsel maintains, the "Respondent's rebuttal evidence was never properly segregated, tested, and evaluated for whether it would defeat a prima facie violation of law." Id. at 16.
The General Counsel also maintains that the Judge erred by failing to find that the Respondent did not meet its burden of proof in this case. Specifically, the General Counsel maintains that the Respondent failed to demonstrate that it had a legitimate justification for not promoting Nicholls. In this regard, the General Counsel claims that the Respondent produced no evidence from other witnesses to corroborate Pugh's explanation of his decision. The General Counsel asserts that the Judge erred by failing to draw adverse inferences from the absence of corroboration.
Further, the General Counsel maintains that, properly considered, the evidence in this case establishes that the Respondent violated § 7116(a)(1), (2), and (4) of the Statute by failing to promote Nicholls. According to the General Counsel, the facts, and reasonable inferences from the facts, demonstrate that Pugh: (1) had a "strong personal hostility" to union activities, id. at 19; (2) considered Nicholls to be a part of a union-related group who opposed him; and (3) "had not accepted Nicholls' testifying against him with equanimity," id. at 17. The General Counsel maintains that this evidence establishes a prima facie case of a violation of § 7116(a)(1), (2), and (4).
The General Counsel maintains, in addition, that the facts of the case, and reasonable inferences from those facts, in the absence of corroborating evidence, leads to the conclusion that Pugh's explanation of his decision not to promote Nicholls is "unsupported by the evidence." Id. at 22. Specifically, the General Counsel notes: (1) the "sterling nature" of Nicholls' qualifications, id. at 23; (2) the uncertain nature of Pugh's record of Nicholls' performance ratings; (3) Nicholls' positive sick leave balance and the absence of any evidence of sick leave abuse; (4) Nicholls, and two other candidates, received the highest rating from the rating panel on their knowledge of all the correctional posts and the other two candidates were selected; and (5) Pugh's inability to provide any details as to the comments made by the Lieutenants about Nicholls' performance. In addition, the General Counsel notes that Nicholls was not selected, but two candidates who had been the subject of serious disciplinary actions were chosen.
The General Counsel requests a make-whole remedy, restoring the lost pay and benefits that Nicholls suffered as a result of the Respondent's illegal failure to promote him. The General Counsel also requests a cease and desist order and the posting of an appropriate notice.
B. Respondent's Opposition
1. Alleged Violation of § 7116(a)(1)
The Respondent maintains that the Judge's findings of fact are supported by the record. In particular, the Respondent argues that the Judge correctly found that Pugh's statements to Nicholls did not violate § 7116(a)(1). The Respondent notes, in this regard, that even in Nicholls' account of the meeting in which the alleged statements were made, Pugh "never referred to Nicholls' protected activity in any way." Respondent's Opposition (Opposition) at 5. Moreover, according to the Respondent, the General Counsel did not establish that Pugh's comment about not assisting a core group of employees in their careers was directed at Nicholls.
2. Alleged Violation of § 7116(a)(1), (2), and (4)
Further, the Respondent maintains that the Judge correctly found that it did not violate § 7116(a)(1), (2) and (4). Specifically, the Respondent contends that the Judge "did not err in considering the record as a whole to determine whether a prima facie case of discrimination was established." Id. at 8. The Respondent asserts that the Judge correctly found that Pugh's list was a reliable record of the information that he used in making his selections and supports his testimony that Nicholls did not meet his promotion criteria. In this regard, the Respondent contends that the Judge properly applied the business records exception to the hearsay rule in relying on Pugh's list. According to the Respondent, in assessing whether protected activity motivated Pugh's failure to promote Nicholls, the Judge correctly noted: (1) the length of time between the unfair labor practice hearing in which Nicholls testified and the decision not to promote him; and (2) the two candidates who had been the subject of discipline had filed grievances against Pugh but were nevertheless promoted.
Finally, the Respondent claims that events subsequent to Nicholls' and Pugh's May 3 meeting "directly refute" the General Counsel's contention that Pugh stated he would never help Nicholls in his career. Id. at 14. After that meeting, Nicholls received a cash award, a quality step increase, and was ultimately promoted to GS-8 Senior Officer Specialist. According to [ v60 p757 ] the Respondent, these events are "probative evidence" of Pugh's "lack of discriminatory animus[.]" Id. at 14.
IV. Analysis and Conclusions
A. The Judge Did Not Err in Failing to Find a Violation of § 7116(a)(1)
The General Counsel contends that the Judge's conclusion that Pugh's statements to Nicholls at the May 3 meeting did not violate § 7116(a)(1) is unsupported by the record. We find that the Judge's findings and conclusions are supported by substantial evidence in the record.
The Judge found that: (1) Nicholls "steered the conversation" at the May 3 meeting toward the group of people with whom Pugh was angry; (2) Nicholls tied Pugh's motives in not selecting him to Pugh's attitude toward that group; and (3) as a consequence, it would have been impossible for Pugh to have avoided the subject. Judge's Decision at 13. Although the Judge found that Pugh probably did say at some point that he would not help that group, the Judge also specifically found that Pugh never mentioned Nicholls' protected activity at the May 3, 2001 meeting. The Judge also found that Pugh made clear to Nicholls at the May 3 meeting that he did not include Nicholls in the group that opposed him and that, in effect, Pugh told Nicholls that he "harbored no animosity to him." Judge's Decision at 14.
Further, the Judge found that the General Counsel's attempt to link Pugh's comments at that meeting about not helping those who opposed him to Pugh's comments in 1998 and 1999, where Nicholls' protected activity was mentioned, was "unreasonable." Id. Thus, the Judge concluded that "the only reasonable objective interpretation" of Pugh's comments at the May 3 meeting, in a "far different situation" than events in 1998 and 1999, is that when Nicholls accused Pugh of retaliation, Pugh told Nicholls that he had done nothing "objectionable or worthy of retaliation." Id. at 14-15. In our view, the Judge reasonably distinguished the factual settings of the May 3 statements and Pugh's statements to Nicholls in 1998 and 1999. Based on that distinction, the Judge reasonably found that Pugh's May 3 statement did not constitute a violation of § 7116(a)(1).
Accordingly, based on substantial evidence in the record as a whole, we conclude that the Judge properly concluded that the Warden's statements to Nicholls at their May 3 meeting did not violate § 7116(a)(1) of the Statute.
B. The Judge Did Not Err in Failing to Find a Violation of § 7116(a)(1), (2), and (4)
1. The Judge Did Not Misapply the Letterkenny Framework
The Judge did not err by considering the record as a whole in determining whether the General Counsel had established a prima facie case that Nicholl's protected activity was a motivating factor in Pugh's decision not to promote him. In this regard, since motive is a proper inquiry in the General Counsel's showing of a prima facie case, the Judge properly applied the Letterkenny framework. The Authority has specifically approved the approach to Letterkenny used by the Judge. See, e.g., Dep't of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 55 FLRA 1201, 1205 (2000).
In addition, the Judge's application of Letterkenny is consistent with the approach of the Board in assessing whether its General Counsel has established a prima facie case of prohibited discrimination under an analytical framework similar to the Authority's test. In Greco and Haines, Inc., 306 NLRB 634 (1992), for example, the Board stated as follows:
Under Board precedent, a prima facie case may be established by the record as a whole and is not limited to evidence presented by the General Counsel. . . . Thus, the absence of any legitimate basis for an action may form part of the proof of the General Counsel's case.
306 NLRB at 634 (citations omitted). See Holo-Krome Co. v. NLRB, 954 F.2d 108, 113 (2nd Cir. 1992) (Holo- Krome). The converse is also true. See NLRB v. CWI of Maryland, Inc., 127 F.3d 319, 332 (4th Cir. 1997). If the evidence in the record as a whole, including rebuttal evidence presented by the Respondent, is insufficient to demonstrate a prima facie case, the complaint will be dismissed. Holo-Krome, 954 F.2d at 114. See Letterkenny, 35 FLRA at 122 (Authority notes that its framework is consistent with that applied by the Board).
Based on existing Authority precedent, which is consistent with Board precedent, the General Counsel's exception is without foundation.
Accordingly, the General Counsel's exception in this regard is denied.
2. The Judge's Determinations as to Possible Adverse Inferences Do Not Require Reversal of His Decision
The Authority has held that a judge may draw an adverse inference from the failure of a party voluntarily to produce documents or other objects in its possession as evidence. See, e.g., IRS, Philadelphia Service Ctr., [ v60 p758 ] 54 FLRA 674, 682 (1998) (citing 2 John W. Strong, et al. McCormick on Evidence, 184 (4th ed. 1992)). In this regard, even assuming that the Judge erred by failing to draw an adverse inference against the Respondent for failing to produce Nicholls' quarterly performance evaluations for 2000-2001, given the weight of the evidence as a whole, that fact is not fatal to the Judge's decision. As the Judge also pointed out, Nicholls did not question the information on the list that projected his rating for the 2000-2001 period as "exceeds."
Accordingly, the General Counsel's exception as to the Judge's failure to draw adverse inferences is denied. [n3]
3. The Judge's Findings and Conclusions are Supported by Substantial Evidence in the Record as a Whole
The Judge's conclusion that the Respondent did not violate § 7116(a)(1), (2), and (4) of the Statute is supported by substantial evidence in the record as a whole. See, e.g., United States Dep't of Homeland Security, Border and Transportation Directorate, Bureau of Customs and Border Protection, 59 FLRA 910, 913 (2004) (citing United States Dep't of Transportation, 48 FLRA 1211, 1215 (1993) (Authority reviews judge's factual findings to determine if those findings are supported by substantial evidence in the record as a whole)).
The Judge carefully considered all the evidence in this case. He weighed the conflicting testimony and resolved issues as to the sufficiency of the evidence. He made factual findings and drew reasonable inferences from all the testimonial and documentary evidence and concluded that the weight of the evidence in the record overall demonstrated that Nicholls' protected activity was not a motivating factor in Pugh's decision not to promote him. The General Counsel emphasizes certain evidence and overlooks or minimizes evidence that the Judge found persuasive, but fails to demonstrate that the Judge's inferences from all of the evidence, and the conclusions based on those inferences, are not reasonable based on the record as a whole.
More specifically, the Judge rejected the General Counsel's argument that Nicholls' superior qualifications supports the inference that the failure of Pugh to promote him was based on Nicholls' protected activity. The Judge found that the proposed inference was not supported by the record. In this regard, the Judge noted the long period of time between the unfair labor practice hearing in December 1999 and the decision in April 2000 and the promotion decisions in March 2001. He also noted that, both at the time of the events giving rise to the previous unfair labor practice and the period surrounding the promotion decision, Nicholls was not significantly involved in protected activity with the Union. The Judge found as well that employees who had filed grievances against Pugh were promoted.
Moreover, the Judge found that, under the selection criteria used by Pugh, Nicholls' record, on balance, was not sufficiently distinguished to warrant the inference of impermissible motive claimed by the General Counsel. The Judge noted that Pugh had broad discretion both to choose the factors most important to him in his evaluation of candidates and to apply them. He noted also that those factors were well known by the staff.
As to the evidence regarding those factors contained on the lists Pugh used to summarize data regarding the candidates, the Judge found that evidence acceptable under the business records exception to the hearsay rule and gave it significant probative weight. He found no evidence that the data had been falsified by Pugh, noting in particular that if Pugh had falsified the data regarding Nicholls, he would have had to falsify data as to other employees as well.
With respect to the evidence itself, the Judge noted that Nicholls did not dispute that his performance rating for 2001 was "Exceeds." He also did not dispute evidence as to his sick leave balance and did not explain why it was as low as it was. Further, there is no evidence in the record to contradict Pugh's conclusion that Nicholls' post assignment record was n