[ v17 p435 ]
The decision of the Authority follows:
17 FLRA No. 71 DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BALTIMORE, MARYLAND AND WILKES-BARRE DATA OPERATIONS CENTER Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case Nos. 2-CA-20200 2-CA-20346 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent has not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the complaint be dismissed in its entirety. There after, the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the exceptions. /1/ 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 and conclusions, based upon his credibility determinations, that the Respondent did not discriminate against Robert Kopko either by failing to rehire him as a temporary mail and file clerk on the day shift or by subsequently terminating his temporary employment as a mail and file clerk on the night shift, as alleged in the complaint. /2/ Accordingly, the complaint shall be dismissed. ORDER IT IS ORDERED that the consolidated complaint in Case Nos. 2-CA-20200 and 2-CA-20346 be, and it hereby is, dismissed. Issued, Washington, D.C., April 15, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos. 2-CA-20200, 2-CA-20346 Irving L. Becker, Esquire For the Respondent Lee Mingledorff, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER, Administrative Law Judge DECISION Statement of the Case This decision concerns a consolidated unfair labor practice complaint issued by the Regional Director, Region II, Federal Labor Relations Authority, New York, New York, against the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Wilkes-Barre Data Operations Center (Respondent) based on charges filed by the American Federation of Government Employees (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1), (2), and (4) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by (a) on or about January 11, 1982, failing to select Robert Kopko for a mail and file clerk position on the day shift, (b) on or about January 18, 1982, by selecting Robert Kopko for a mail and file clerk position on the night shift, and (c) on or about April 2, 1982, by terminating the employment of Robert Kopko as a mail and file clerk on the night shift. The complaint alleges that these actions were taken by Respondent because of Kopko's membership and activities in behalf of the Union and/or because he provided information or testimony under the Statute. Respondent's answer admitted the jurisdictional allegations relating to the Respondent, Charging Party, and the filing of the charges, but denied any violation of the Statute. A hearing was held in Wilkes-Barre, Pennsylvania. The Respondent and the General Counsel, FLRA were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and the General Counsel filed helpful briefs, and the proposed findings have been adopted in whole or in substance where found supported by the record as a whole. Issues Presented 1. Was Mr. Kopko at the time he applied for employment with Respondent, on or about January 11, 1982, an "employee" within the meaning of Section 7103(a)(2) of the Statute so that Respondent's decision not to reemploy him could form the basis of an unfair labor practice under Section 7116(a)(1), (2), and (4) of the Statute. 2. Is the complaint in Case No. 2-CA-20200 barred by Section 7116(d) based on Kopko's discrimination complaint or on other appeals available to him as an applicant for employment. 3. Did Respondent fail to select Kopko for a day shift mail and file clerk position on January 11, 1983 because he engaged in protected activity under the Statute. 4. Was Kopko's termination as a mail and file clerk on the night shift, on or about April 2, 1982, an unlawful result of Respondent's discriminatorily failing and refusing to employ him on the day shift on January 11, 1983. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. I. Findings of Fact Robert Kopko began his employment with the Wilkes-Barre Data Operations Center as a temporary clerk on February 12, 1979. Because of lack of work, his employment was terminated on September 28, 1979. On October 29, 1979, he was again employed as a temporary employee for one year. This appointment was extended for an additional year until October 28, 1981, when his employment term expired. During his employment, from February 1979 through October 1981, Kopko worked on the day shift (7:30 a.m. to 4:00 p.m.) as an entry level GS-3 shipping/receiving clerk or mail and file clerk. Kopko was an above average employee during his first and part of his second appointment and received recognition for his work. In June 1980, he received a letter from the Center Director for exceeding performance requirements during the period December 1979 to May 1980 and was given a special achievement award of $75.00. He received two employee suggestion awards of $25.00 and $50.00 in January of 1981. Kopko's attitude toward his job began to change in April of 1981. He became insubordinate to a number of supervisors. He refused to initially perform certain assignments, remarking that he was only a temporary GS-3, or making other inappropriate comments. He was orally counseled by his supervisor on two occasions. In April 1981, he was insubordinate to Rita Stephanski, a supervisor. On this occasion, his supervisor received a written complaint from Stephanski and counseled Kopko in writing. She also brought the matter to the attention of her supervisors, including Robert Dominick, support services supervisor. Kopko filed a grievance concerning the written counseling. Another incident occurred regarding the use of a tape recorder to record the first step grievance meeting between Kopko, his representative, and Stephanski. Kopko indicated to Stephanski that higher management had approved the use of the tape recorder at the first step meeting. However, this was not the case. Management called a special meeting with the Union to discuss the matter of the unauthorized taping. In late 1980 and early 1981, Kopko gave information to two Authority agents who were investigating unfair labor practice charges. Kopko furnished his supervisor with the original copy of an incompleted affidavit in Case 2-CA-786 after speaking with the Authority agent. In May 1981, sometime after the Stephanski insubordination incident, Kopko because the only Union steward for the Administrative Services Division. As a steward, Kopko helped write up some grievances. He did not make oral presentations of the grievances. He also worked with the Union on some bargaining proposals. Kopko brought evidence to the Union that led to the filing of an unfair labor practice charge against the head of the Administrative Services Division, Daniel Dervin, concerning alleged alteration and circulation of an unfair labor practice charge. The charge was dismissed, but Dervin appeared less friendly to Kopko thereafter. /3/ Kopko also filed safety and health complaints, some against his immediate supervisor. Management was aware of Kopko's Union activities. Kopko received whatever official time he needed to carry out his representational activities and was never criticized for his use of official time. After the expiration of his term of employment on October 28, 1981, Kopko again applied for employment as a temporary dayshift clerk to begin January 6, 1982. He was not selected for this position. Robert Dominick, support services supervisor, whose testimony I credit, was the selecting officer for the temporary employees who were hired at that time. Dominick took into consideration the incidents of insubordination relating to Kopko and felt that he was not among the best qualified employees due to the need for employees in the support services division to have daily interaction with other supervisors. He also considered the fact that Kopko had lied about being given permission by management to tape record a grievance meeting. All temporary employee appointments depend on there being available work to perform, and no one can definitely state how long an appointment will last. However, mail clerks hired for the day shift generally are employed for a longer period of time than mail clerks employed for the night shift. Fifteen mail clerks were hired for the day shift and four for the night shift effective January 11, 1982. Six of them had worked previously for the Wilkes-Barre facility, but only two had worked as mail and file clerks. None of the six had been a Union member or active in the Union. After being advised that he was not selected for the day shift position, Kopko filed an EEO complaint alleging that he was not rehired due to a speech impediment. /4/ On January 11, 1982, Kopko's EEO complaint was investigated by an EEO counselor, Edward Cooper. Cooper interviewed all management officials who regularly had contact with Kopko during his previous employment. One of the persons interviewed was Robert Dominick, the selecting official for mail clerks in January. Cooper asked Dominick what criteria were used in selecting a mail and file clerk and why Kopko had not been selected. Mr. Dominick stated that there were no criteria for the selection other than giving some other people a chance at the job. Dominick did not state that he was in any way dissatisfied with Kopko's prior performance as a mail and file clerk. Mr. Cooper also interviewed Daniel Dervin who stated that the only criterion used in selecting mail and file clerks was the desire for some new faces. Finally, Mr. Cooper interviewed Ms. McCarthy and Ms. Rosalie Klosko, former immediate supervisors of Kopko. Neither supervisor related any negative remarks concerning Kopko's desirability as an employee. Ms. McCarthy stated that Kopko was a good worker. On January 14, 1983, Robert Dominick selected Kopko as a mail clerk for the night shift. One of the night shift clerks hired on January 6, 1983 did not report, and Dominick considered Kopko to be the next best qualified. Kopko accepted this position and was rehired effective January 18, 1982. The night shift hours were from 4:30 p.m. to 1:00 a.m. On April 2, 1982, Kopko and four other temporary mail and file clerks assigned to the night shift were terminated because of lack of work. Mail clerks on the day shift were not furloughed until the fall of 1982. Subsequent to his employment with the Respondent, Kopko has worked for the Veterans Administration. He has had some periods of unemployment. II. Discussion, Conclusions and Recommendations A. Kopko was an "employee" within the meaning of section 7103(a)(2). Respondent contends that the allegation that Respondent violated sections 7116(a)(1), (2), and (4) of the Statute by failing to select Kopko for a position on or about January 11, 1982 (Case. No. 20200) should be dismissed inasmuch as Kopko was only an applicant for employment and not an "employee" within the meaning of section 7103(a)(2) of the Statute when the alleged violations took place. Section 7103(a)(2) of the Statute provides: (2) 'employee' means an individual-- (A) employed in an agency; or (B) whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority; . . . Section 7116(a)(1), (2) and (4) of the Statute provides: (a) For the purpose of this Chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; . . . . (4) to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter; . . ." Section 7116(a)(2) does not use the term "employee." Giving the common meaning of "hire" or "hiring," /5/ I agree with the position of the General Counsel that "discrimination in connection with hiring" in section 7116(a)(2) includes a discriminatory refusal to hire or rehire an applicant for employment. In Executive Order 11491, the precursor to the Statute, section 19(a)(2) of Executive Order No. 11491 was substantially the same as section 7116(a)(2) and was also held to be applicable to alleged discriminatory failure to rehire. Norfolk Naval Shipyard, Portsmouth, Virginia, A/SLMR No. 618, 6 A/SLMR 112 (1976). Given the purpose of Congress to protect employees in the exercise of their rights to "form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal," /6/ a former employee must be held to be an "employee" within the meaning of section 7103(a)(2) of the Statute for the purpose of section 7116(a)(1) and (4) of the Statute. The words "otherwise discriminate" in section 7116(a)(4) also must be found to include discrimination in regard to the rehiring of an employee. Respondent's position, that a temporary employee loses all statutory protection against retaliation for his union activity when his temporary employment ends, would seriously undercut the purpose of the Statute to encourage the employee exercise of statutory rights by protecting persons from retaliation. No temporary employee, especially one in a position such as mail and file clerk where furloughs and rehirings are common, would feel free to join or participate in a labor organization with such an interpretation of the law. In my view, the Statute should be broadly interpreted to further the Congressional objective, as has been the case with the comparable provisions of the Labor Management Relations Act, 29 U.S.C. 158(a)(1) and (4) in the private sector. See, e.g., NLRB v. Sovair Manufacturing Co., 104 LRRM 2760 (6th Cir., 1979); NLRB v. Brake Parts Co., 447 F.2d 503, 514 (7th Cir., 1971); Dubin-Haskell Lining Corp. v. NLRB, 386 F.2d 306 (4th Cir., 1967). B. Case No. 2-CA-20200 need not be dismissed pursuant to Section 7116(d). Respondent urges that the complaint in Case No. 2-CA-20200 should be dismissed pursuant to section 7116(d) of the Statute. /7/ Respondent points out that Kopko filed a complaint of discrimination on the grounds that he was not reemployed because of his physical handicap. Respondent also asserts that Kopko, as an applicant for employment, had the right to appeal to the Merit Systems Protection Board pursuant to 5 U.S.C. 7701(a) and 5 U.S.C. 7702(a)(1). No showing has been made that the issues involved in the instant complaint "can properly be raised" under the appeals procedures cited by Respondent. The issue in Mr. Kopko's equal employment opportunity complaint will necessarily be limited to the handicap discrimination issue raised by Mr. Kopko. Cf. Department of Agriculture, U.S. Forest Service, Siuslaw National Forest, Corvallis, Oregon, 3 FLRA No. 42 (1980); Department of Health, Education and Welfare, Social Security Administration, Great Lakes Program Service Center, Chicago, Illinois, 2 FLRA No. 12 (1979). It appears that 5 U.S.C. 7701(a) and Sec. 7702(a)(1) gives applicants only limited rights of appeal to the Merit Systems Protection Board concerning non-selection based on discrimination prohibited by the Civil Rights Act of 1964, the Fair Labor Standards Act of 1938, the Rehabilitation Act of 1973, or the Age Discrimination in Employment Act of 1973. Thus, Respondent has failed to support its affirmative defense that section 7116(d) operates to bar the complaint in Case No. 2-CA-20200. C. A preponderance of the evidence does not establish the alleged violations of the Statute. The General Counsel contends that Respondent failed to select Mr. Kopko for the day shift mail and file clerk position on January 11, 1983 because he engaged in protected activity under the Statute. The General Counsel also claims that Kopko's termination as a mail and file clerk on the night shift on April 2, 1982 was an unlawful result of Respondent's discriminatory refusal to reemploy him on the day shift on January 11, 1983. In order to establish a violation of sections 7116(a)(2) and (4) there must be a showing that the alleged discriminatee was engaged in protected activity, that the Respondent had knowledge of such activity, and that the Respondent took action against the discriminatee because of its anti-union animus. Veterans Administration Medical Center, Buffalo, New York, 13 FLRA No. 46 (1983); Department of Transportation, Federal Aviation Administration, Boston Air Route Traffic Control Center, Nashua New Hampshire, 11 FLRA No. 67 (1983). Section 2423.18 of the Rules and Regulations, 5 C.F.R. 2423.18, based on section 7118(a)(7) and (8) of the Statute, provides that the General Counsel "shall have the burden of proving the allegations of the complaint by a preponderance of the evidence." The record establishes that Kopko was engaged in protected activity, and that Respondent had knowledge of such activity. The General Counsel urges that circumstantial evidence establishes the element of discriminatory motivation. The General Counsel points out that the reason for non-selection given at the hearing that Kopko was in some respects an undesirable employee, was pretextual and conflicted with the rationale given to the EEO counselor in January (the desire for new people or new faces in the job); six of the clerks hired were former employees, but non-union members; and that Kopko was an experienced and qualified employee. The General Counsel contends that Respondent took the action because of Kopko's protected activities. The General Counsel suggests that Respondent's management officials were displeased with the Union for having filed numerous unfair labor practice charges against their section. He claims they were displeased with Kopko in particular for having filed safety and health complaints against a supervisor, for using official time, and for taking an altered charge form to the Union which led to the filing of an additional charge against the head of the section. While the trier of fact may infer motive from the total circumstances proved, the trier of fact is not compelled to draw such a conclusion. Veterans Administration, supra. In this case, I decline to draw such an inference. I have credited the testimony of Respondent's witnesses, particularly the selecting official, Robert Dominick, as to his reason for making the selection, namely that Kopko was not among the best qualified employees due to previous incidents of insubordination, and the testimony of supervisors Stephanski, Klosko, and Pissott as to these incidents. I do not find the reason for the nonselection which was given to the EEO counselor in January to be so inconsistent (the desire for new people) with the reasons given at the hearing as to suggest another reason entirely. The expressed desire for "new faces" meant that they did not want Kopko. The record demonstrates that the reason they did not want Kopko on the day shift was dissatisfaction with his work performance and not his Union activities. The record also shows that Kopko was subsequently properly selected for the night shift and was later terminated along with other night shift mail and file clerks because of lack of work. It is concluded that a preponderance of the evidence does not establish that Respondent violated sections 7116(a)(1), (2) and (4), as alleged. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following order: Order It is hereby Ordered that the Consolidated Complaint in Case Numbers 2-CA-20200 and 2-CA-20346 be, and it hereby is, DISMISSED. GARVIN LEE OLIVER Administrative Law Judge Dated: February 17, 1984 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ The General Counsel 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 has 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 was incorrect. The Authority has examined the record carefully, and finds no basis for reversing the Judge's credibility findings. /2/ In adopting the Judge's conclusion that the preponderance of the evidence fails to establish that the Respondent discriminated against Kopko in violation of the Statute, the Authority finds it unnecessary to pass upon whether Kopko was an "employee" within the meaning of section 7103(a)(2) of the Statute in the facts and circumstances of this case for purposes of the alleged section 7116(a)(1) and (4) violation. /3/ During the period between February 10, 1981 and August 26, 1981, the Union filed an average of one charge a month against the Administrative Services Division. /4/ Kopko apparently had the speech impediment in 1979, but did not disclose any speech impairment on his 1979 application. Prior to being shown his 1979 application, Kopko testified that he did tell the agency about the handicap. /5/ The Random House College Directory defines "hire, hired, hiring": 1. to engage the services of for wages or other payment. 2. to engage the temporary use of at a set price. 3. to grant the temporary use of, or the services of, for a compensation . . . . 4. to pay for the desired action or conduct of . . . . /6/ See sections 7101 and 7102 of the Statute. /7/ Section 7116(d) provides: "(d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. . . ."