United States, Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Elkton, Ohio (Respondent) and American Federation of Government Employees, Local 607, AFL-CIO, (Charging Party)

[ v61 p515 ]

61 FLRA No. 97

UNITED STATES
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
ELKTON, OHIO
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 607, AFL-CIO
(Charging Party)

CH-CA-04-0303

_____

DECISION AND ORDER

February 10, 2006

_____

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

I.     Statement of the Case

      This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC). The Respondent filed an opposition to the GC's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when a Lieutenant made a certain comment to an employee. The Judge dismissed the complaint.

      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 ULP alleged in the complaint. Accordingly, we dismiss the complaint.

II.     Background and Judge's Decision

      In February 2004, [n1]  the Union's Chief Steward filed two informal grievances alleging that two negative performance log entries were based on the Chief Steward's "union activity" and because he was "the only male" occupying a legal tech position in the department. GC Exh. 8. On March 11, the Union filed a formal grievance alleging, among other things, that his supervisor had created "a hostile work environment" for the Chief Steward. [n2]  GC Exh. 10 at 2. Shortly thereafter, on March 13, the Acting Warden advised the Chief Steward that the Chief Steward would be transferred. See Judge's Decision at 9, 12. The Chief Steward subsequently testified before a workplace violence committee, at which time he stated that he did not fear for his safety and that the Supervisor had never struck him or threatened him physically. However, he continued to allege as the basis of his grievance that there was a hostile work environment in his department.

      On March 16, the Chief Steward was advised by memorandum that the committee had determined that his allegations did not evidence workplace violence or a hostile work environment and that he, therefore, would be returned to his department the next day. The memorandum also advised the Chief Steward that if he had additional information, then he should submit it in writing before his scheduled return. On March 17, the Chief Steward responded by memorandum, in which he continued to allege that the Supervisor had created a hostile work environment. The Chief Steward also claimed that the Supervisor had engaged in "constant male bashing[,]" ridiculing and harassing behavior, making "adverse comments about [certain] ethnic origins" as well as other "disparaging" behavior. Judge's Decision at 10-11. The Chief Steward continued to maintain that he had "never been physically assaulted . . . or threatened in a physical manner by" the Supervisor. Id. at 10.

      On March 18, the Chief Steward was notified that his transfer would remain in effect until further notice. The next day, the Supervisor was also transferred, effective March 22. Shortly thereafter, the matter was referred to the Office of Internal Affairs (OIA) to conduct an investigation. The Chief Steward and the Supervisor remained in their new positions during the investigation. Thereafter, a ULP charge was filed, and a complaint was issued, alleging that the Respondent violated § 7116(a)(1) and (2) of the Statute by transferring the Union Chief Steward in retaliation for his protected activities.

      Initially, the Judge found that the Chief Steward was transferred "shortly after initiating the grievance" and that the transfer was "partly the result of his submission [ v61 p516 ] of a grievance . . . ." Id. at 17, 15. As such, the Judge found that the GC established a prima facie case of discrimination under § 7116(a)(2) of the Statute.

      The Judge also found that the transfer was motivated by the "nature of his allegations" in the grievances and that, in this respect, the transfer was justified and would have occurred even in the absence of his protected activity. Id. at 12. More particularly, the Judge found that the Chief Steward's allegation of a "hostile work environment" justified his transfer, at least until the threat assessment team could assess the allegation, because the allegation suggested "the possibility of violence." Id. at 17-18. The Judge found that, as part of the investigation, the threat assessment team interviewed the Chief Steward. Id. at 12 n.13. According to the Judge, once the threat assessment team had determined that there was no danger of workplace violence, the Acting Warden was prepared to return the Chief Steward to his department but that the Chief Steward then "greatly enlarged his allegations and repeatedly emphasized that [the Supervisor] had created a hostile work environment, which [he] himself testified he could no longer tolerate." Id. at 18. According to the Judge, the Chief Steward testified that he "never indicated to anyone in authority whether he wanted to return" to his department, but that he did indicate that "he could not continue to work in [the department] if [the Supervisor] was going to continue to `hound' him." Id. at 11.

      The Judge also found that although affidavits taken from several employees as part of the investigation "did not fully support" the Chief Steward's allegations against the Supervisor, the affidavits nevertheless "indicate[d] that there might have been serious problems" within the department. Id. at 18. According to the Judge, the Chief Steward's and the Supervisor's "continued presence in the department could well have had an intimidating effect on other employees[,] which would have interfered with the OIA investigation." Id. Based on these findings, the Judge determined that the Respondent was justified in continuing the transfer, at least until the investigation was complete.

      The Judge found no evidence supporting the GC's claim that the Respondent's stated reason for the transfer -- to remove the Chief Steward from the alleged hostile work environment, pending an investigation -- was pretextual. In this regard, the Judge noted the Chief Steward's testimony that the Warden told the Union President that the transfer was "what [the Chief Steward] gets for filing all of those petty allegations . . . ." Id. at 2. According to the Judge, the issue of whether the Warden in fact made the remark was "not crucial to the ultimate issue of unlawful retaliation and discrimination." Id. at 15. Nevertheless, the Judge ruled that the "remark" was likely a reference to the "substance" of the Chief Steward's allegations, rather than his protected rights. Id. at 18. Therefore, the Judge concluded that the comment did not indicate that the Respondent's reason for transferring the Chief Steward was a pretext for unlawful discrimination. Moreover, the Judge noted that, in continuing the transfer, the Warden was "influenced by an e-mail" from the Chief Steward to a certain employee. Id. at 15. The Judge found that the employee responded to the Chief Steward that "she believed that the e-mail was threatening to her." Id.

      The Judge also found that the Respondent's decision to temporarily transfer the Chief Steward from the department was proper because of the seriousness of the allegations about the Supervisor. In this connection, the Judge did not consider the Supervisor's subsequent transfer as evidence of pretext, noting that the Supervisor was transferred "as soon as [the HR Manager] became aware of [the Chief Steward's] grievance." Id. at 19.

      Based on the foregoing, the Judge recommended an Order dismissing the complaint.

III.     Positions of the Parties

A.      GC's Exceptions

      The GC argues that the Judge erred in relying on certain evidence, reaching certain factual findings, and crediting certain testimony.

      First, the GC disputes the Judge's reliance on the employees' affidavits and the e-mail from the Chief Steward to a certain employee. The GC claims this evidence is "irrelevant" and asserts that the Respondent could not have relied upon the affidavits or the e-mail in deciding to transfer the Chief Steward because these documents came into existence after the disputed transfer. Exceptions at 18, 21.

      Second, the GC argues that there is no support in the record for the Judge's finding that the Respondent's decision to continue the Chief Steward's transfer was proper to preserve the integrity of the OIA investigation.

      Third, the GC claims that the Judge erred by finding that the Respondent transferred the Chief Steward to accommodate his personal wishes. See id. at 24-27. The GC also disputes the Judge's reliance on one of the affidavits from a male employee in discrediting the Chief Steward's claim that he was the only male "legal tech" in his department because, according to the GC, the employee's affidavit does not reveal his position. Id. at 28. [ v61 p517 ]

      Fourth, according to the GC, the Judge incorrectly found that the Chief Steward did not communicate to management his desire and willingness to return to the department, and failed to set out the factual basis for his conclusion that the Chief Steward "did not want to return to [the department] as long as [the Supervisor] was still there." Id. at 34.

      Fifth, the GC asserts that the Judge made contradictory findings as to whether the Chief Steward or anyone else was interviewed by the threat assessment team.

      Sixth, the GC asserts that the Judge failed to explain why he credited the Acting Warden's testimony that he transferred the Chief Steward because of the nature of the allegations and that the HR Manager directed him to transfer the Supervisor. Id. at 32. According to the GC, the testimony was undercut by the fact that the Chief Steward informed the Acting Warden that he was not fearful of, and had never been physically assaulted by, the Supervisor, and by the Warden's testimony that he directed the transfer. See id. at 33-34.

      Seventh, according to the GC, the Judge did not make any findings of fact with respect to the Union President's testimony that during a telephone conversation, the Warden stated "[t]hat's what [the Chief Steward] gets" for filing "petty" allegations. Id. at 35. The GC asserts that the "only logical conclusion" to be reached from the Warden's comment is that the Chief Steward was transferred because of his grievances. Id. at 36. Also, in this regard, the GC disagrees with the Judge that the comment "was not crucial to the ultimate issue of unlawful retaliation and discrimination." Id. According to the GC, the comment is crucial because it shows anti-union animus and establishes that the Respondent's asserted reason for the transfer is pretextual.

      Finally, according to the GC, the Judge erred as a matter of law by not finding that there was disparate treatment, as such a finding would have rebutted the Respondent's asserted reason for the transfer and established it as pretextual. In this connection, the GC argues that it submitted undisputed evidence that prior to the Chief Steward's transfer, an employee was accused of harassing another employee within the same department, and the Respondent transferred only the alleged harasser, while permitting the accuser to remain in the department during the OIA investigation.

B.      Respondent's Opposition

      The Respondent disputes the GC's claim that it was not possible to have relied on the affidavits taken from employees as part of the investigation because those affidavits were submitted after the Chief Steward was removed from the department. In this regard, the Respondent asserts that the Warden properly relied on the affidavits in deciding to continue the transfer pending an investigation because the affidavits directly contradicted the Chief Steward's allegations and the Warden wanted to "avoid any further influence" on employees by the Chief Steward and the Supervisor. Opposition at 8 (citing United States Dep't of Veterans Affairs Med. Ctr., Leavenworth, Kan., 60 FLRA 315 (2004) (Member Armendariz dissenting as to a different matter) (Dep't of VA)).

      With regard to the GC's argument that the Chief Steward informed the Respondent of his desire and willingness to return to the department, the Respondent reiterates the Judge's finding that the Acting Warden informed the Chief Steward that he would be returned to the department, after which the Chief Steward "greatly enlarged [the] allegations" of a hostile work environment. Id. at 7.

      According to the Respondent, because the Judge correctly concluded that the Chief Steward's transfer was justified, it effectively rebutted any presumption of unlawful discrimination. In addition, the Respondent asserts that the Judge did not err by crediting the Acting Warden's testimony that the HR Manager directed him to transfer the Supervisor out of the department. In this regard, the Respondent asserts that the Warden's testimony was "not in conflict with" the Acting Warden's testimony. Id. at 14. Moreover, in this regard, the Respondent asserts that "[i]t is very possible that both the Warden and [the HR Manager] directed" the transfer. Id. at 14-15.

      Finally, in response to the GC's claim of disparate treatment, the Respondent asserts that the prior incident in which the alleged harasser was removed occurred under a different supervisor, before the current Warden arrived at the facility. See id. at 7. Therefore, according to the Respondent, there was no disparate treatment.

IV.     Analysis and Conclusions

A.      The Judge Did Not Err In His Factual Findings

      When reviewing a judge's factual findings, the Authority reviews the record to determine whether those factual findings are supported by substantial evidence in the record as a whole. See United States Dep't of Transportation, 48 FLRA 1211, 1215 (1993). Errors of fact that do not affect the outcome of the case are disregarded. See Dep't of Transp., Fed'l Aviation Admin., Ft. Worth, Tex., 57 FLRA 604, 607 (2001) (citing United States Dep't of Justice, INS, Wash., D.C., [ v61 p518 ] 55 FLRA 93, 96 n.4 (1999) and AFGE, Local 1457, AFL-CIO, 43 FLRA 575, 585 n.2 (1991)).

      The GC has not established that the Judge made any factual errors that affected the outcome of the case. First, contrary to the GC's claim, the Judge did not find that the affidavits submitted during the investigation supported the Respondent's initial decision to transfer the Chief Steward. Rather, he found that the Warden relied on the affidavits in continuing the transfer, a finding that the GC acknowledges, but does not dispute. See Exceptions at 18. Moreover, the Judge found that the affidavits contradicted the Chief Steward's allegations, and the GC does not dispute this finding, which is supported by the record. Compare Respondent's Exh. 1 (Affidavits) with GC Exh. 13 (Chief Steward's Allegations). Also, contrary to the GC's claim, the Judge did not conclude that the Respondent transferred the Chief Steward to accommodate his personal wishes. The Judge specifically found that, when the Chief Steward was notified of the transfer, he "indicated that he was not in agreement with the [transfer]." Judge's Decision at 11. The GC has not shown that the Judge made contradictory findings as to whether anyone was interviewed by the threat assessment team. In this regard, the Judge specifically found that the "weight of the evidence" established that the Chief Steward "was interviewed by the team." Id. at 12 n.13.

      With regard to the GC's argument that the Judge erred in finding that the recipient of the e-mail told the Chief Steward that she considered the e-mail to be threatening, the record shows that the Warden testified that the e-mail recipient advised him, not the Chief Steward, that she considered the e-mail threatening. See Transcript at 178. However, the GC has not alleged or shown that the Judge's error in this regard affected the outcome of his decision. In this connection, the Judge's relevant finding with respect to the e-mail is that the Warden relied on it in deciding to continue the Chief Steward's transfer, and the GC does not dispute this finding, which is supported by the Warden's testimony. See Judge's Decision at 15; Transcript at 178.

      Next, the Judge's finding that continuing the Chief Steward's transfer was necessary to preserve the integrity of the investigation is supported by other, unchallenged factual findings. Specifically, the Judge found that several employees had submitted affidavits contradicting the Chief Steward's allegations. See id. at 14-15, 18. The Judge further found that the Chief Steward's continued presence in the department "could well have had an intimidating effect on other employees." Id. at 18. Finally, in this regard, the Judge credited the Warden's testimony that, in deciding to continue the transfer, he relied on an e-mail from the Chief Steward to another employee. Id. at 15. The GC does not dispute any of these factual findings.

      The GC disputes the Judge's finding that the Chief Steward was not the only male legal tech in his department. However, there is no indication that the Judge relied on this finding in concluding that the Chief Steward's transfer was proper, as the Judge never mentions this fact in his analysis. See id. at 16-19. In any event, the GC has not explained how the issue of whether the Chief Steward was the only male in his department affected the outcome of the Judge's ultimate conclusion that the transfer was not unlawful.

      The GC also has not demonstrated that the Judge's finding that the Chief Steward did not communicate his desire to return to his department undercuts his finding that the Respondent did not violate the Statute. In this regard, the Judge found that the Chief Steward's transfer was continued because, given his "greatly enlarged" allegation of a hostile work environment, the Respondent wanted to investigate the allegation before returning him to the department. Id. at 18. Consequently, the Chief Steward's desire to return to the department was of no consequence, and therefore, his communication of that fact does not affect the outcome of the case.

B.      The Judge Did Not Err In His Credibility Determinations

      The Authority will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See 24th Combat Support Group, Howard AFB, Republic of Pan., 55 FLRA 273, 279 (1999). Credibility determinations may be based on a number of considerations including, but not limited to: (1) the witness's opportunity and capacity to observe the event in question; (2) the witness's character as it relates to honesty; (3) prior inconsistent statements by the witness; (4) the witness's bias or lack thereof; (5) the consistency of the witness's testimony with other record evidence; (6) the inherent improbability of the witness's testimony; and (7) the witness's demeanor. See United States Dep't of Commerce, Nat'l Oceanic and Atmospheric Admin., Nat'l Ocean Serv., Coast and Geodetic Survey, Aeronautical Charting Div., Wash., D.C., 54 FLRA 987, 1006 n.11 (1998) (citing Hillen v. Dep't of the Army, 35 M.S.P.R. 453, 458 (1987)). With respect to witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify, and accordingly, the Authority attaches great weight to a judge's determinations based on demeanor. See Dep't of the Air Force, [ v61 p519 ] Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 55 FLRA 1201, 1204 (2000) (Dep't of the Air Force). Where a party raises exceptions to credibility determinations based on considerations other than witness demeanor, the Authority will review those determinations based on the record as a whole. See id.

      As the GC disputes the Judge's credibility determinations on grounds other than witness demeanor, we review the determinations based on the record as a whole. For the following reasons, we find that the Judge did not err in his credibility determinations.

      The Judge did not, as the GC claims, credit the Acting Warden's testimony that he transferred the Chief Steward because the Chief Steward felt threatened. Rather, the Judge specifically found that the Chief Steward was transferred because of "the nature of his allegations." Judge's Decision at 15. In so finding, the Judge considered the fact that the Chief Steward informed the Acting Warden that he was not concerned for his safety and that the Supervisor had never physically threatened him. See id. at 16. The Judge even acknowledged that the Acting Warden "did not think that [the Chief Steward's] allegations suggested work place violence . . . ." Id. at 15. In fact, the Judge found that the Acting Warden was prepared to return the Chief Steward to the department, but for his enlarged claims of a hostile work environment. Despite the foregoing, the Judge concluded that the Acting Warden transferred the Chief Steward because he "did not want to run the risk of leaving [the Chief Steward] in what [he] himself described as a hostile work environment before the allegations had been reviewed by a threat assessment team." Id.

      The Judge's conclusion in this regard is supported by the record as a whole, as the conclusion is consistent with the Acting Warden's testimony about the matter. See Tr. at 131, 136-37. Moreover, there is no dispute that the Chief Steward consistently maintained that the Supervisor had created a hostile work environment, and that, as the Judge found, the Chief Steward's allegations, if true, would establish that the Supervisor was "guilty of serious misconduct against" the Chief Steward. Judge's Decision at 16. Finally, in this regard, the GC has not offered any evidence to demonstrate that the Judge's decision to credit the Acting Warden's testimony was in error.

      The GC argues that the Judge should have rejected the Acting Warden's testimony that the HR Manager directed him to transfer the Supervisor because the Warden testified without contradiction that he ordered the transfer. This argument is unpersuasive for two reasons. First, the Warden's testimony that he directed the transfer does not necessarily establish that the HR Manager did not also direct the transfer. Second, even assuming the Warden, and not the HR Manager, directed the transfer, the GC has not explained how an error in this regard affects the outcome of the case.

      Based on the foregoing, we find no errors in the Judge's credibility determinations.

C.     The Judge Correctly Found No Violation of the Statute

      In Letterkenny Army Depot, 35 FLRA 113 (1990) (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. The GC may seek to establish that the respondent's reasons for taking the action were pretextual. See Dep't of the Air Force, 55 FLRA at 1205.

      The Judge found that the GC established a prima facie case,  [n3]  that the Respondent established a legitimate reason for the transfer, and that the GC did not show that the Respondent's asserted reason was pretextual[n4]  As explained below, we conclude that the Judge correctly concluded that the Respondent did not violate the Statute.

      The Judge's conclusion that the Respondent had a legitimate reason for the temporary transfer because of the nature of the Chief Steward's allegations is supported by the record. In this regard, there is no dispute [ v61 p520 ] that the Chief Steward alleged that the Supervisor had created a hostile work environment and that he later enlarged his claims against the Supervisor by claiming that the Supervisor engaged in "constant male bashing," ridiculed and harassed the Chief Steward, made "adverse comments about [certain] ethnic origins," and engaged in other "disparaging" behavior. Judge's Decision at 10-11. In light of these circumstances, the Judge found no reason, and the GC has not demonstrated, why the Respondent should necessarily have transferred the Supervisor, instead of transferring the Chief Steward out of the allegedly abusive environment until the circumstances could be assessed. Id. at 19.

      Authority precedent also does not provide a basis for concluding that the Respondent necessarily should have transferred the Supervisor rather than the Chief Steward. In Dep't of VA, the Authority addressed similar circumstances. The complaint in Dep't of VA alleged that the respondent violated the Statute by transferring a certain nurse in retaliation for her protected activities. Although the evidence showed that the nurse was transferred shortly after engaging in protected activities, the judge credited the chief nurse's testimony that the nurse was transferred because of her interpersonal conflicts with other nurses, whom he also transferred. The Authority found no error in the judge's decision to credit the chief nurse's testimony, despite evidence that he had made certain "unpleasant remarks" about the nurse. 60 FLRA at 320. In this connection, the Authority found that a memorandum from the nurse to one of the other nurses who was transferred demonstrated the "ongoing conflict[]" among the nurses, and supported the respondent's asserted reason for transferring the nurse. Id. at 319. Similarly, as the Judge did not err in crediting the Acting Warden's testimony as to why he transferred the Chief Steward, and given the seriousness of the Chief Steward's allegations, we cannot conclude that the Respondent violated the Statute.

      The record further supports the Judge's reasoning, with respect to the initial transfer, that the Chief Steward's allegation of a hostile work environment suggested the possibility of workplace violence and, if shown to be true, would have established that the Supervisor "was guilty of serious misconduct against" the Chief Steward. Judge's Decision at 16. In this connection, the Acting Warden testified that when he received the Chief Steward's grievance, the Chief Steward indicated a concern for his safety. See Transcript at 136. The Acting Warden also testified that he interpreted the Chief Steward's allegation of a hostile work environment to include a threat of violence. See id. at 135. In addition, the evidence shows that "substantiated" allegations of "[d]iscrimination . . . sexual harassment [and] workplace violence" constitute "serious misconduct" under the Respondent's "Program Statement[.]" GC Exh. 21 at 4-6.

      In addition, other facts in the record support the Judge's conclusion. Specifically, the record shows that the Acting Warden immediately convened a threat assessment team to review the Chief Steward's allegations, which the Judge found acted "without undue delay." Judge's Decision at 15. The record also shows that, once the Chief Steward "greatly enlarged his allegations [of] a hostile work environment[,]" an OIA investigation was initiated. Id. at 18. Finally, the Respondent also transferred the Supervisor temporarily pending the investigation. We find that these facts, coupled with the lack of corroboration among other employees within the department, support the Judge's conclusion that the Respondent's actions were reasonable under the circumstances.

      The GC's argument that the Respondent's stated reason for the transfer was pretext for unlawful discrimination does not demonstrate that the Judge erred in dismissing the complaint. Specifically, the GC claims that the Chief Steward was subjected to disparate treatment and that the Warden harbored anti-union animus. With regard to the GC's disparate treatment argument, the "linchpin of the disparate treatment analysis is the similarly situated status of the employees being compared." PBGC v. FLRA, 967 F.2d 658, 667 (D.C. Cir. 1992) (citing Dep't of Transp., FAA, El Paso, Tex., 39 FLRA 1542, 1554 (1991) (disparate treatment when employee "treated differently from another similarly situated employee"). See also, e.g., Dep't of the Navy, Navy Resale Sys., Field Support Office, Commissary Store Group, Norfolk, Va., 16 FLRA 257, 265 (1984) (disparate treatment when meat cutter disciplined for safety violation but "almost every other meat cutter in the shop" also "violat[ed] ... the safety standards" without being disciplined) (Dep't of the Navy).

      The GC argues that in one prior situation involving alleged workplace harassment, the Respondent transferred the accused while permitting the accuser to remain in the department. In particular, the Chief Steward testified that when he was accused of workplace harassment, he was transferred pending an investigation while the accuser, a fellow employee, remained in the department. See Tr. at 68-70. However, the GC did not allege, or provide any evidence to demonstrate, that the accuser in the prior incident, and the accuser in this case, were similarly situated in relation to the individuals accused. The record also does not establish the necessary similarity. In this regard, although both accusers were employees, in the instant case the employee [ v61 p521 ] accused a management official of misconduct, while in the prior case the employee accused another employee of misconduct. See id. at 70. Moreover, there is no evidence in the record as to whether the employees occupied the same position within the department. See, e.g., Dep't of the Navy, 16 FLRA at 263 (employees occupying same position found to be similarly situated). Finally, it is undisputed that the Warden who transferred the Chief Steward in the prior incident is not the same Warden who transferred him in this case. See Tr. at 178 (Warden's testimony). Consequently, the GC's evidence does not establish disparate treatment.

      Finally, with respect to the GC's anti-union animus argument, the Judge did not err by finding that it was not "crucial" to resolve the parties' dispute over whether the Warden made the "petty allegations" comment. In this connection, the Judge effectively resolved the dispute when he found that the comment was likely a reference to the "substance" of the Chief Steward's allegations. Judge's Decision at 15. In addition, the Judge did not err by not finding that the comment evidenced union-animus. In this regard, the Judge acknowledged the alleged comment, yet he credited the Acting Warden's testimony as to why he transferred the Chief Steward. Id. at 15. As such, we conclude that the Warden's comment does not undermine the Respondent's proffered reason for transferring the Chief Steward, which was shown to be lawful. Cf. Dep't of VA, 60 FLRA at 320.

V.      Order

      The complaint is dismissed.


File 1: Authority's Decision in 61 FLRA No. 97
File 2: ALJ'