[ v13 p481 ]
The decision of the Authority follows:
13 FLRA No. 85 DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE ANDOVER SERVICE CENTER ANDOVER, MASSACHUSETTS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 1-CA-563 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party filed exceptions to the Judge's Decision, and the Respondent filed an opposition thereto. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, /1/ conclusions and recommendations that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 1-CA-563, be, and it hereby is, dismissed. Issued, Washington, D.C., December 13, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE ANDOVER SERVICE CENTER ANDOVER, MASSACHUSETTS Respondent and NATIONAL TREASURY EMPLOYEES UNION Charging Party Case No. 1-CA-563 Robert F. Hermann, Esq. For the Respondent Barbara J. Collins, Esq. For the Charging Party Carol Waller Pope, Esq. For the General Counsel Before: ALAN W. HEIFETZ Administrative Law Judge DECISION Statement of the Case This proceeding arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S,C. 7101 et seq., as a result of an unfair labor practice charge filed November 26, 1980, with the Federal Labor Relations Authority. Consequently, on April 22, 1981, the Regional Director issued a complaint alleging that the Department of the Treasury, Internal Revenue Service, Andover Service Center (Respondent), in violation of Section 7116(a)(1) and (2) of the Statute, by discrimination discouraged membership in the National Treasury Employees Union (NTEU or the Union) by refusing to promote Kathleen Demers in July and August 1980, by refusing to grant her official time for the preparation of a grievance and by keeping surveillance records of her whereabouts at the Andover Service Center. Respondent denies the allegations of the Complaint. A hearing was held on July 7 and 8, 1981, at Andover, Massachusetts. All parties were afforded full opportunity to examine witnesses, to introduce evidence, and to file briefs. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions, and recommended order: Findings of Fact Kathleen Demers began her employment with the Andover Service Center as a seasonal employee in January of 1969. After two promotions, she resigned from her GS-4 tax examiner position in October 1971 to raise a family. In January 1976 she was reinstated as a GS-2 seasonal clerk. A year later she was promoted to a seasonal Grade 5 tax examiner in the Returns Analysis Branch. In March 1979 she was selected and accepted a voluntary downgrade to GS-4 clerk in order to gain permanent employment status. To date, she continues to work in that same position as a GS-4 control clerk in the control unit of the Collection Branch. The National Treasury Employees Union has been the exclusive bargaining representative for bargaining unit employees at the Andover Service Center since August 12, 1980. NTEU was certified on that date after a consent election held on August 5, 1980. Prior to that election, the American Federation of Government Employees (AFGE) was the certified bargaining representative at the Andover Service Center. In April 1978 Ms. Demers became actively involved in NTEU's campaign to displace AFGE as the exclusive representative. During NTEU's organizing campaign, AFGE filed an unfair labor practice charge against NTEU in which Ms. Demers was specifically named. She, Gail Kenney, Sheila Dunbar and Shirley Hall became the nucleus of NTEU at the Andover Service Center. Their efforts on behalf of the Union were engaged in openly and were known to the management of Respondent. Like Ms. Demers, these three other women were selected in March and April 1979, by Branch Chief Harry Thurston and through competitive promotion procedures, for permanent GS-4 Control Clerk positions in the newly created Collections Branch. They all worked under the supervision of Betty Benson. Ms. Benson always evaluated Ms. Demers fairly and they had a good employer-employee relationship. Eventually Ms. Kenney and Ms. Dunbar left the unit when they received competitive promotions. From February 1980 until she left the unit on June 23, 1980, /1/ Ms. Benson counseled Ms. Demers on numerous occasions concerning the utilization of official time, specifically her entitlement to official time for purposes of representing employees in agency grievances and the need for an accounting of her whereabouts while on official time. Ms. Benson advised her that she was required to request supervisory authorization in advance to utilize official time for agency grievances. She was given a copy of the Agency Grievance Handbook and discussed these regulations with Labor Relations Chief Jane Goldberg. Ms. Demers' request for a written interpretation of the Handbook was refused. Division Chief Thurston and Section Chief Eleanor McCann called Ms. Benson on several occasions concerned that Ms. Demers was properly utilizing her time according to the regulations. Ms. Benson did not enjoy having to participate in the counseling sessions she was directed to hold with Ms. Demers. At all times material to this case, Ms. Demers was acting in her capacity as an individual when she represented employees in agency grievances since NTEU had not as yet been certified as the exclusive representative and the subject matter was not covered by the AFGE contract in existence at that time. Denial of Official Time On July 14, 1980, Ms. Demers filed an agency grievance on behalf of herself and all other Control Clerks in her unit protesting the transfer of certain functions to the unit. Because Shirley Hall was Acting Unit Supervisor and one of the grievants, Ms. Demers and Section Chief Eleanor McCann agreed that the latter would hear the grievance. At a meeting on the grievance on July 23, 1980, Ms. McCann stated that the work in question was being performed by Control Clerks at other Service Centers. Ms. Demers said that she doubted that was so but that she would research the question. She asked Ms. McCann for the FTC telephone numbers of the Service Centers she had spoken to and Ms. McCann obliged. Ms. Demers then spent a total of two hours calling the Service Centers and interviewing supervisors as to the procedures in their units. /2/ She told Shirley Hall the purpose of extended telephone use and, on one occasion, she gave Ms. McCann an update of her findings before continuing her telephonic research. Ms. Demers charged these two hours to official time on her time report for July 25, 1980. She did not specifically request this official time in advance from either Ms. Hall or Ms. McCann and therefore she was counseled by both of them for misusing official time. She was told that the time had not been properly requested and authorized in advance as required by the Grievance Handbook. Over her protest, she was denied the two hours of official time and she signed for two hours of annual leave. Ms. Demers testified that she was confused as to the procedure for requesting official time and that instructions from the Chief of Labor Relations differed from what her immediate supervisor was telling her. /3/ She had been denied official time on occasions prior to this incident and, additionally, the unfair labor practice charge filed by AFGE, which named her as an active participant, alleged that she had been improperly utilizing official time to advance the NTEU cause to the detriment of AFGE. Record Keeping On numerous occasions over the period January through July 1980, Ms. Demers submitted various Freedom of Information Act (FOIA) requests to Henry Comacho, the Service Center's Disclosure Officer. In April 1980, Ms. Benson counseled her about spending too much time visiting Mr. Comacho. Prior to NTEU's August 12, 1980 certification, Compliance Division Chief Ronald Savoca spoke to Mr. Comacho of his concern that Ms. Demers was spending too much time away from her job visiting the Disclosure Office. He asked Mr. Comacho to note each visit she made to his office, indicating the time and purpose of the visit, and to give these notes to Collection Branch Chief Thurston. Thereafter, for a two day period Mr. Comacho made notes of this information in Ms. Demers' presence. After two days, Mr.Thurston told him that the notes were not necessary and that he should discontinue making them. Mr. Comacho had never been asked to make such notes of other employees. The July 1980 Selection Ms. Demers applied for a promotion to the position of GS-5 Tax Examiner (Accounts) in the Compliance Division, Examination Branch, Correspondence Processing Section. Twenty-six employees applied for this position, including Cheryll Daly and Kathy Philips who were also Collection Branch Control Clerks. /4/ Since all three worked for Ms. Benson, she prepared promotion performance appraisals for each and thereafter, in her new position as Examination Branch Supervisor, she was designated as the selecting official for the position. A ranking panel of three supervisors evaluated the candidates and determined those who were "highly qualified" and those who were "best qualified". On July 9, 1980, Ms. Demers, Ms. Philips and Ms. Daly were the three who were certified as "best qualified", with ranking scores of 65, 62 and 61, respectively. Ms. Benson received the application materials for those rated "best qualified" and she interviewed each candidate. On July 14, 1980, after deliberating over a weekend, she selected Ms. Daly. She deliberated over the weekend because she knew each of candidates well and she found the choice to be difficult. She knew Ms. Demers to be an excellent employee, who could work quickly, and who, in her opinion, deserved promotion to the GS-6 level, let alone the GS-5 position which she had to fill. However, after weighing the qualifications of all three, each of whom she found to be excellent and hard working, she chose Ms. Daly because she had the most IDRS /5/ experience and the greatest knowledge of transaction codes. The selection of Ms. Daly was made independently by Ms. Benson and she consulted with no one concerning her deliberative process. She stated, "If you are asking if any one coached me, or anyone told me I could or could not select, this was totally my own decision. As a matter of fact, I think they (management) markedly avoided the subject." In her interview with Ms. Demers, the subject of her Union activities did not come up and Ms. Benson did not consider her Union activities when she made her selection for the position. /6/ The August 1980 Selection On June 23, 1980, Respondent posted a vacancy announcement for the GS-6 position of Tax Examiner in the Compliance Division, Collection Branch, Taxpayer Delinquency Investigation (TDI) Unit I. Due to unexpected retirements, the announcement was twice amended, finally to reflect four vacancies and to extend the application deadline until July 21, 1980. A fifth vacancy occurred but was immediately filled by a priority consideration candidate /7/ and therefore, the vacancy was never posted. Another of the four vacancies was filled by priority consideration and therefore, at the time of the selection, three positions were vacant. /8/ Nineteen GS-3, 4 and 5 employees applied for the promotion and one GS-6 employee applied for lateral reassignment. Each candidate was evaluated by the appropriate supervisor and a panel of three supervisors was convened to rank the candidates. Seven employees were certified to the selecting official, Lois Earley, as "best qualified". Those candidates and their scores were: Ms. Demers, 69; Maureen Ozoonian, 64; Peter Gallinaro, 58; Sandra Auger, 52; Hollyann Cochrane, 52; Ida DiGrazia, 51; John Neal, 51. Lois Earley received their application materials and interviewed each candidate, including Jo Ellen Cooper who was applying for lateral reassignment, and excluding Mr. Gallinaro who was interviewed by another supervisor because of a vacation schedule conflict. She asked each candidate the same questions at the interview. At the outset of the interview with Ms. Earley, Ms. Demers mentioned that she had been elected president of the Union, and Ms. Earley responded that she knew and she congratulated Ms. Demers. /9/ That was the only reference to the Union at the interview. In making her selections, Ms. Earley attempted to choose individuals who had particular skills and expertise which she considered to be lacking in her unit at the time. On August 29, 1980, she selected Ms. Cooper, Ms. Auger and Mr. Neal. Ms. Cooper was a lateral transfer who was selected for her accounting related skills and her personable manner which would be important for the many phone contacts with taxpayers required by the job. Both Ms. Auger and Mr. Neal were from Entity Control and, therefore, had experience with pension plans and exempt organizations. In addition, Ms. Earley gave consideration to Mr. Neal's collection experience in the private sector and his ability to make effective use of the telephone. She did not question Ms. Demers' ability to perform the work of the unit with proper training. She did find those she selected to have greater experience in adjustments, exempt organizations, pension plans and research than did Ms. Demers. In addition, since the duties of the position required a great deal of taxpayer telephone contact, Ms. Earley was concerned that Ms. Demers' temperament was too volatile in that she had noticed that Ms. Demers is explosive when she gets upset. /10/ Ms. Earley, who was once a union steward and who had held a collateral assignment as an equal employment opportunity counselor, gave no consideration to Ms. Demers' Union affiliation in making her selections. She made her selections independently, without communication or discussion with any other management official. Discussion and Conclusions Section 7102 of the Statute gives employees the "right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal." Interference by an employer with those rights by discrimination in connection with hiring, tenure, promotion or other conditions of employment is violative of Section 7116(a)(1) and (2) of the Statute. However, the Statute does not offer protection to employees participating in concerted activities unrelated to membership in, or activities on behalf of a labor organization. VA Med. Center, Bath, NY and AFGE Local 491, 4 FLRA No. 76 (1980). The grievance filed by Ms. Demers on behalf of herself and other employees was not filed under either a contractual grievance procedure or the aegis of the Union. Neither were the various Freedom of Information Act requests made to the Disclosure Office. In both circumstances, Ms. Demers was acting only as a personal representative and not in her capacity as a Union Official. Although the Union's efforts to displace AFGE at the Andover Service Center were contested, the record does not warrant any conclusion that Respondent has shown animus against NTEU. The burden of proof is, of course, upon the General Counsel to prove animus. That burden has not been satisfied in this case by the mere reference to the decision of Judge Sternburg in Internal Revenue Service Center, North Atlantic Service Center, Andover, Massachusetts, Case No. 1-CA-269, (OALF-81-040) (January 30, 1981). /11/ The events in that case took place at Respondent's Wilmington, Massachusetts annex, and moreover, the Labor Relations Specialist at Andover gave advice to the Wilmington official which was not inconsistent with Respondent's Statutory obligations. Under these circumstances, particularly where no animus is shown, the refusal to grant official time and the notations made by the Disclosure Officer cannot be violative of the Statute since Ms. Demers' activities in this regard were unrelated to membership in, or activities on behalf of a labor organization. Moreover, I note that Respondent's concerns over Ms. Demers' whereabouts and her use of official time were born out of its fear it could be charged by AFGE as the exclusive representative at Andover. Hence, Respondent's actions in this connection have not been shown to be other than at least facially lawful. Although it is undisputed that Ms. Demers was engaged in protected activity when she expended her efforts on behalf of NTEU in its organizing campaign and it is undisputed that Respondent was aware of those activities, the record is totally devoid of any evidence upon which one might conclude that her nonselection for either promotion was, in any way, motivated by her engagement in such protected activity. Even if one were to find a mere suspicion of animus on the part of Respondent, the fact remains that both selections were made by supervisors who reached their decisions with deliberation, with no consideration of Union affiliation or activity, and with total independence from any other management official. Since there is not even the proverbial scintilla of evidence to demonstrate that their selections were in any way influenced by any one else, their testimony alone becomes the focal point of analysis in this case. Having closely observed their demeanor while they testified, I conclude that both Ms. Benson and Ms. Earley were credible witnesses, that they based their selections on rational considerations, and that those decisions were made without regard to Ms. Demers' Union affiliation or activity. For her part, there is no question that Ms. Demers is a bright, energetic and capable employee who possesses qualifications requisite for promotion. Both supervisors candidly admitted as much. There is also no question that she has been an active, articulate advocate for the Union. Those facts, taken with the fact that the promotion selections were made in a time period surrounding a campaign and election, provide a setting in which discrimination could take place. However, a mere opportunity to act does not constitute evidence that such action has taken place. In contrast to those facts which might be found to be conducive to discriminatory conduct, the record also shows that two other Union officials, who were active from the inception of the NTEU campaign and who were selected with Ms. Demers for a downgrade to achieve permanent employment status, successfully competed for promotions from their GS-4 Control Clerk positions. Gail Kenney was Treasurer, and Shiela Dunbar was the Executive Vice-President of the Chapter and the chief steward. In addition, there is no question as to the qualifications of those who were ultimately selected for the promotions in question. Ms. Demers did have the highest score of those who were rated as "best qualified" but those who were selected did possess the qualifications necessary for promotion to the open job. Regarding the July selection for the GS-5 job, there is no question that Ms. Demers did have some IDRS experience and that she did have knowledge of transaction codes; however, Ms. Benson's finding that Ms. Daly had the most IDRS experience and the greatest knowledge of transaction codes is unrebutted on the record. Similarly, in regard to the August selection, there is no question that Ms. Demers had a breadth of experience which would qualify her for the job but, unrebutted on the record was Ms. Earley's assertion that the other candidates had greater experience and expertise in those areas in which her section was, at that time, deficient. Also, having observed Ms. Demers' demeanor, as noted in footnote 10, Supra, I cannot say that Ms. Earley's concern about temperamental volatility was unfounded. In short, I conclude that the July and August promotion selections were not based on any unlawful considerations. Accordingly, I recommend that the Authority adopt the following: ORDER ORDERED, that the Complaint in Case No. 1-CA-563 is dismissed. ALAN W. HEIFETZ Administrative Law Judge Dated: October 29, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The Charging Party excepted to certain credibility findings made by the Judge. The demeanor of witnesses is a factor of consequence in resolving issues of credibility, and the Judge had the advantage of observing the witnesses while they testified. The Authority will not overrule a Judge's resolution with respect to credibility unless a clear preponderance of all the relevant evidence demonstrates that such resolution is incorrect. The Authority has examined the record carefully and finds no basis for reversing the Judge's credibility findings. /1/ The General Counsel excepted to the Judge's failure to make a credibility determination as to whether the Respondent had expressly advised the Union on January 13 and January 28, 1981, that further changes in the Affirmative Action Plan might be made. The Judge concluded that the agreement reached on January 28, 1981, was tentative, contingent upon approval by the senior installation Commander. This conclusion was based on the facts that the usual "Memorandum of Agreement" was not offered to the Union at that time, nor did Respondent's Labor Relations Officer sign for management, as was customary. The Authority agrees with the Judge's conclusion, which is supported by record facts irrespective of the credibility resolution, and therefore denies the General Counsel's exception. /1/ Ms. Benson was promoted to another supervisory position in the Examination Branch, Audit Correspondence Section. /2/ Ms. Demers' desk was within 30 feet of Ms. McCann's. /3/ The nature of the alleged discrepancy was not brought out on the record. /4/ At this point in time, the only other person who had taken a downgrade with Ms. Demers and who had not been promoted was Shirley Hall. /5/ Integrated Data Retrieval System. /6/ Findings made as to Ms. Benson's deliberative process and selection are based on her testimony and, as there is no contradictory objective evidence in the record, the findings are based on her credibility. I found her to be composed, straightforward, candid and totally credible. /7/ Priority consideration is given to employees whose job is either abolished or downgraded. Without regard to actual qualifications, they are eligible for consideration for any position which would allow them to maintain their salaries at comparable levels provided that they have demonstrated the potential to be trained for the new job for which they apply. /8/ Although the record was somewhat clouded by the revelation that one of the three chosen candidates actually went to the TDI II Unit instead of TDI I, this was apparently because Unit II's supervisor was on leave and therefore, the Unit II supervisor was the selecting official for all existing vacancies in both units. /9/ On direct, Ms. Demers testified: " . . . the interview opened on her congratulating me on becoming the acting president of the chapter . . ." From this, Counsel for the General Counsel argues that it was Ms. Earley who brought up the subject of the Union election and that Ms. Earley's testimony, that Ms. Demers brought up the subject, should not be believed. I credit Ms. Earley's testimony based on her demeanor; I found her to be sincere and candid. Moreover, there was no rebuttal evidence which would contradict her version of the events, nor was Ms. Demers' direct testimony squarely contradictory. /10/ Although Ms. Earley could not give specific examples of Ms. Demers' behavior and although she has not observed her in a supervisory capacity, I credit her testimony in this regard. I do so not only based on her demeanor and her general opportunity to observe Ms. Demers, but also on Ms. Demers' demeanor while testifying. Although she was quite calm and deliberate when she began her testimony, Ms. Demers gradually became more agitated, although controlled, as her examination continued. As her breathing became heavier she appeared to be making a concerted effort to restrain herself. On several occasions she could be heard muttering under her breath to herself. /11/ On brief, the Charging Party alleges that "the IRS worked to discourage employees from supporting NTEU." However, that allegation is not referenced to the transcript in this case, nor do I find any support in the record for it. The Charging Party's reference to a case involving the Boston District Office does not, by itself, evidence animus where no nexus is shown between the facts in that case and those in this one.