U.S. Federal Labor Relations Authority

Search form

21:0698(88)CA - HUD, Columbia Area Office, Columbia, S.C. and AFGE -- 1986 FLRAdec CA

[ v21 p698 ]
The decision of the Authority follows:

 21 FLRA No. 88
 Charging Party
                                            Case No. 4-CA-40341
                            DECISION AND ORDER
    I.  Statement of the Case
    This unfair labor practice case is before the Authority because of
 exceptions filed by the Charging Party to the attached Decision of the
 Administrative Law Judge.  The issue concerns whether the Respondent
 violated Section 7116(a)(1), (2) and (4) of the Federal Service
 Labor-Management Relations Statute (the Statute) by failing and refusing
 to select employee Flora Tewksbury for the position of Program Aide and
 by issuing a Notice of Reduction-in-Force separating her from the
 position of Occupancy Clerk because of her protected union activity.
 The General Counsel filed no exceptions to the Judge's dismissal of the
    II.  Background Facts
    As the pertinent facts in this case are fully set forth in the
 Judge's decision, they will be discussed only briefly.  The Charging
 Party has been certified as the exclusive bargaining representative of a
 unit of all non-professional employees and a unit of all professional
 employees who are assigned to the Respondent Activity.  As found by the
 Judge, it is undisputed that Flora Tewksbury was engaged in protected
 union activities while employed by the Respondent and that much of her
 representational duties, including a request to management for
 information and the filing of charges as well as a grievance, occurred
 between June 1983 and the spring of 1984.  The Respondent, does not deny
 its awareness of such activities.  Further, as admitted by the
 Respondent in its answer, Tewksbury was not selected on April 30, 1984,
 for the position of Program Aide and was issued on or about May 23, l984
 a Notice of Reduction-in-Force separation from the position of Occupancy
    III.  Judge's Decision
    The Judge found that the Respondent did not violate section
 7116(a)(1), (2) and (4) of the Statute either by abolishing an Occupancy
 Clerk position held by unit employee Tewksbury which resulted in her
 receiving a Reduction-in-Force notice terminating her employment or by
 failing to select the employee for a Program Aide position.  More
 particularly, with respect to the separation of the employee from the
 Occupancy Clerk position, the Judge, noting that no anti-unionism had
 been shown to exist and that there had been no showing that any acts of
 interference or coercion were directed against Tewksbury by the
 Respondent, found that the evidence did not establish that such position
 was abolished because of the employee's protected activities.
 Concerning the non-selection of the employee for the Program Aide
 position, the Judge similarly found that the evidence did not show that
 Tewksbury's non-selection was discriminatory under the Statute, noting
 in particular that management in fact accommodated the employee in the
 performance of her representational functions.  Therefore, the Judge
 concluded that the General Counsel had not made out a prima facie case
 of discrimination under section 7116(a)(1), (2) and (4) of the Statute,
 and recommended dismissal of the complaint in its entirety.
    IV.  Positions of the Parties
    The Charging Party's exceptions basically take issue with the Judge's
 findings of fact and credibility determinations and disagree with his
 conclusions.  Thus, in its brief, the Charging Party argues that given
 the conflict in testimony of Respondent's witnesses and the Judge's
 failure to resolve it or to set forth any basis for his credibility
 determinations, the testimony of Respondent's witnesses should have been
 disregarded.  No exceptions to the Judge's decision dismissing the
 complaint were filed by the General Counsel.
    V.  Analysis
    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 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.  Accordingly, in agreement with the Judge and based on his
 credibility resolutions and rationale, the Authority concludes that the
 Respondent did not violate section 7116(a)(1),(2) and (4) of the Statute
 by abolishing an Occupancy Clerk position held by unit employee
 Tewksbury or by its failure to select that employee for a Program Aide
    VI.  Conclusion
    Pursuant to Section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the exceptions to that Decision, the positions of
 the parties and the entire record, and adopts the Judge's findings,
 conclusions and recommended Order.  The Authority therefore finds, in
 agreement with the Judge, that General Counsel has failed to establish a
 prima facie case of discrimination by the Respondent as to employee
 Tewksbury based on her protected union activity under section
 7116(a)(1), (2) and (4) of the Statute and will order the dismissal of
 the complaint.
    IT IS ORDERED that the complaint in Case No. 4-CA-40341 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., May 9, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Case No.: 4-CA-40341
    Charging Party
    William C. Cregar, Esquire
    William E. House
    For the Respondent
    Linda Norwood, Esquire
    Michael Cornfield, Esquire
    For the General Counsel
    Administrative Law Judge
                           Statement of the Case
    Pursuant to a Complaint and Notice of Hearing issued on July 27, 1984
 by the Regional Director for the Federal Labor Relations Authority,
 Region IV, a hearing was held before the undersigned on September 24,
 1984 at Columbia, South Carolina.
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute).  It
 is based on a first amended charge filed on July 20, 1984 by American
 Federation of Government Employees, AFL-CIO (herein called the Union)
 against Department of Housing and Urban Development, Columbia Area
 Office, Columbia, South Carolina (herein called Respondent).
    The Complaint alleged, in substance, that (a) on or about April 30,
 1984 Respondent failed and refused to select Flora Tewksbury for the
 position of Program Aide (typing), (b) on or about May 23, 1984
 Respondent issued Flora Tewksbury a Notice of Reduction-in-force
 separation from the position of Occupancy Clerk.  It was further alleged
 that Respondent engaged in such conduct because (a) Tewksbury engaged in
 activities on behalf of the Union, (b) Tewksbury provided information
 and/or gave testimony in proceedings before the Authority - all in
 violation of Section 7116(a)(1), (2) and (4) of the Statute.
    Respondent's Answer dated July 27, 1984, admitted that Tewksbury was
 not selected on April 30, 1084 for the position of Program Aide.  It
 further admitted that on or about May 23, 1984 the agency issued the
 employee a Notice of Reduction-in-force separation from the position of
 Occupancy Clerk.  However, Respondent denied it engaged in such conduct
 for the reasons alleged in the Complaint, as well as the commission of
 any unfair labor practices.
    All parties were represented at the hearing.  Each was afforded an
 opportunity to be heard. to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
                             Findings of Fact
    1.  At the times material herein the Union has been certified as the
 exclusive bargaining representative of a unit of all non-professional
 and a unit of all professional employees, with certain exclusions, who
 are assigned to Department of Housing and Urban Development, Columbia
 Area Office, Columbia, South Carolina, the Respondent herein.
    2.  At all times material herein the Union and the Respondent have
 been parties to a collective bargaining agreement covering the employees
 in the aforesaid units.  This agreement was, by its terms, effective
 from September 7, 1983 for a period of three years.
    3.  Respondent's Housing and Management Division is comprised of
 three branches:  Assisted Housing Management, Loan Management, and
 Property Disposition.  The Director of the Housing and Management
 Division is William H. Nixon;  Chief of the Loan Management Branch is
 Arlena Esposito;  and her Deputy is David Ball.
    4.  The Loan Management Branch is composed of three divisions:
 multi-family, which monitors HUD insured and Farmers Home Insurance
 projects;  single-family, which monitors single-family homes that have
 HUD mortgages;  Title 1, handling defaulted mobile homes and home
 improvement loans.
    5.  Record facts show that prior to September-October, 1982 there
 were two voucher clerks in the Loan Management Branch.  The voucher
 clerk /1/ examines vouchers submitted from projects, reviews tenant
 applications which accompany vouchers, and advises the project manager
 re adjustments to be made to vouchers.  Since one of the voucher clerks
 felt the work was boring, supervisor Esposito suggested that the only
 way to solve that problem would be to set up a Program Aide position.
    6.  Two Program Aide jobs were established by management in the fall
 of 1982.  The Program Aide position calls for more versatility than is
 demanded of a voucher clerk.  In addition to typing, the Program Aide
 orders inspections on projects, examines financial statements, fills out
 computer forms, and keeps time and attendance records.  Esposito asked
 Flora Tewksbury, who was a voucher clerk in the Loan Management Branch,
 whether she would be interested in a Program Aide job if three of such
 positions were established.  Record testimony reflects that Tewksbury
 declined the offer, saying she liked doing Section 8 /2/ vouchers.
    7.  While the record does not reflect the exact dates, Tewksbury
 testified she was a secretary-treasurer of the Union in 1983.  In June,
 1983 the president of the Union herein, Marie W. Vevito, designated
 Flora Tewksbury as Alternate Principal Representative - 2nd Alternate,
 on behalf of the Union.  For the next few months, Tewksbury used very
 little official time.  Upon assuming her role as alternate
 representative this employee became more active in union affairs.  On
 August 10, 1983 she filed two different charges against Respondent
 alleging a failure to furnish information to the Union;  on September
 19, 1983 Tewksbury filed a charge against the agency herein alleging a
 unilateral reassignment of two employees without bargaining as to the
 impact and implementation thereof with the Union;  /3/ on October 6,
 1983 she filed a charge, amended thereafter, to allege a denial by
 Respondent to Tewksbury of a key card for access to the premises to
 perform government related work;  /4/ on March 16, 1984 Tewksbury filed
 a charge against Respondent alleging a refusal to participate in
 mediation sessions during contract negotiators.  In addition to filing
 the foregoing charges, Tewksbury filed a grievance against management on
 November 22, 1983 for not having received an "outstanding" rating on her
 performance during the past year.
    8.  In June, 1983 Tewksbury used about 10% of official time for
 representational activities.  Having become more active thereafter, her
 use of such time advanced to 25%-30% through April, 1984.  /5/
 Tewksbury's workload was adjusted by management, at her request, on July
 21, 1983, November 8, 1983 and December 12, 1983 due to her
 representational duties.  /6/
    9.  In a memorandum dated November 23, 1983 the Atlanta Regional
 Office directed the Columbia Area Office to reduce its staff by 15
 positions.  Three positions to be abolished were to be from the Loan
 Management Branch, and the decision as to which ones would be abolished
 was left to Area Director Nixon.
    10.  After due consideration Nixon decided to recommend abolishing a
 position from the technical field in both single and multi-family
 sections.  He decided not to cut the Program Aide position since it was
 deemed a versatile one.  Nixon recommended cutting the Occupancy Clerk
 (Voucher) position since that clerk just handled vouchers.  He concluded
 that such a decision would be the best for the office as others could be
 called upon to handle voucher work.
    11.  Two months later the Columbia area office was permitted to
 increase its staff by five positions.  It was decided to reestablish the
 two Loan Specialist positions (single and multi-family), and to add a
 financial analyst as well as a lead clerk.  Nixon adhered to his
 decision /7/ to abolish the Occupancy Clerk position due to a change in
 the workload.  Esposito, who conferred with Nixon in this regard,
 testified that Tewksbury had been able to handle the bulk of Section 8
 vouchers.  However, new projects were coming in and some rent supplement
 projects were converting to Section 8.  The Loan Management Branch was
 being assigned 47 projects from Assisted Housing, which were all Section
 8, and there was a total of over 200 Section 8 projects.  There was no
 way for one person to handle all Section 8 vouchers.  Thus, Esposito
 suggested establishing a third Program Aide, assigning one to two Loan
 Specialists.  This would not involve crossing lines which occurred
 between a Program Aide and the Occupancy Clerk.  /8/ The Program Aide
 would do everything in a certain defined territory for the loan
 specialist, including the vouchers that fell in that territory.
    12.  On March 11, 1984 Yvonne Hall, Director of Administration,
 called Alice Taylor, Vice-President of the union a former President
 thereof.  She asked the union official how the latter felt re staffing
 of new positions.  Taylor insisted it should, as in the past, be merit
 staffed.  Nixon, who intended to transfer Tewksbury laterally into this
 position, was informed it should be so filled.  In accordance therein
 Hall sent over to Nixon the "best qualified" list of employees for the
 additional position of Program Aide.  Two applicants were qualified:
 Flora Tewksbury and Margaret Brasington, who had been a Program Aide in
 Assisted Housing previously.  Neither the rating sheets nor the
 supervisory appraisals for these employees was sent to Nixon.  Further,
 Taylor was not consulted re the selection of either employee for the
 third Program Aide position.
    13.  Both Esposito and Nixon interviewed Tewksbury for the Program
 Aide position.  /9/ During the interview the employee mentioned she was
 ready for a change;  that she really liked working the Architectual and
 Engineering Branch.  When asked if she wanted the Program Aide job,
 Tewksbury replied that she would take it but was anxious to gain
 experience in another section.  Nixon stated he had to know if Tewksbury
 was interested in the position, and the employee said she did want to be
    14.  The record reflects that Nixon knew Tewksbury was rated "highly
 satisfactory" /10/ in regard to her performance evaluation;  that he
 assumed she and Brasington were equal in ability and had about the same
 rating.  Based on the recommendation of Esposito and Ball, the Director
 decided to choose Brasington for the Program Aide position.  Esposito
 testified she did not make a recommendation but that Nixon made the
 selection.  /11/ Nixon was advised by Esposito that Brasington was very
 positive about wanting the job, and he concluded that Tewksbury had not
 shown a decisive interest in same.
    Nixon testified that both Tewksbury and Brasington were capable of
 handling the Program Aide position.  The record indicates management did
 not reject Tewksbury on the ground that she was not qualified for the
 job.  The Director testified he chose Brasington because of her eager
 desire, in contrast to Tewksbury, to become a Program Aide.  He also
 testified it was his "intention to transfer Tewksbury laterally into
 that position.  However, the Union reminded him it should be merit
 staffed.  Further, that Tewksbury's union activities played no part in
 his non-selection of that employee for the position.
    15.  In and about April-May, 1984 Tewksbury was detailed to a GS-5
 Title I clerical position where she remained until June 23.  At the time
 of the detail Taylor inquired of Esposito as to the reason therefor.
 Taylor testified that Esposito informed her they needed a full-time
 person to do vouchers;  that it was Nixon's decision.  While Esposito
 testified in accord with Taylor that she told the latter the decision
 was made by Nixon, the supervisor denied saying they needed a full-time
 person to do vouchers.  Record facts do show that Esposito did ask
 Taylor, during Tewksbury's detail, how the latter was doing;  that
 Taylor suggested the supervisor could check the basket which contained
 the finished work.  Further, Esposito on a particular occasion inquired
 whether Tewksbury was on union time and Taylor replied she had no
 knowledge thereof.
    16.  On May 23, 1984 Tewksbury received a notice stating she would be
 "riffed" on June 23.  However, Respondent granted her a 45 day extension
 until August 11 to perform certain Union duties involving representation
 of employees.  Subsequent to her being "riffed" on August 11, Tewksbury
 was reemployed as a GS-4 clerk-typist in the Property Disposition
    The sole issue herein is whether Respondent abolished Flora
 Tewksbury's position as Occupancy Clerk, as well as refused to select
 her for a Program Aide position, because of her protected concerted
 activity in violation of Section 7116(a)(1),(2) and (4) of the Statute.
    General Counsel contends that, based on the record, a prima facie
 case of discrimination has been established.  It insists that, as set
 down in Department of Transportation, Federal Aviation Administration,
 Boston Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA
 No. 67, the requisite factors to show such discriminatory action have
 been proven.  Thus, it is asserted that Tewksbury was engaged in
 protected activities, i.e., requesting information from management,
 filing of unfair labor practice charges, filing a grievance against the
 agency, acting on behalf of unit employees;  that such activities were
 known to Respondent;  and that such conduct was the basis for the action
 taken by management toward said employee.
    Record facts make it quite clear, and it is undisputed, that
 Tewksbury engaged in protected concerted activity while employed by
 Respondent.  Further, the record reflects that much of her
 representational duties, including a request of management for
 information and the filing of charges as uell as a grievance, occurred
 between June, 1983 and the spring of 1984.  Moreover, it cannot be
 gainsaid that management was aware of Tewksbury's activities as a union
 representative, and there is no denial by Respondent thereof.  In
 respect to the basis for (1) the abolition of this employee's position
 as Occupancy Clerk, and (2) the failure to select her as a third Program
 Aide, the parties are in substantial disagreement.  Conceding that
 direct evidence of illegal motivation in the form of an admission,
 declaration or the like, may not be apparent herein, General Counsel
 submits that all the events warrant an inference of a discriminatory
 motive.  It is insisted that the various inconsistencies in the
 testimony of Respondent's witnesses demonstrate the pretextual nature of
 justification advanced by the agency for its conduct toward Tewksbury.
    (1) In respect to the termination of the Occupancy Clerk position
 held by this employee, the decision to abolish it stemmed from the
 directive issue on November 23, 1983 by the Atlanta Regional office.
 While it was left to Area Director Nixon to choose the positions to be
 eliminated, the record indicates he abolished two loan management
 positions as well as that of the Occupancy (Voucher) Clerk.  Pointing to
 the fact that the Loan Management positions were reestablished by Nixon
 but not that of the Occupancy Clerk, it is argued that such omission is
 significant in light of the increased representational duties performed
 by Tewksbury at that period.  Further, it is contended that Esposito
 admitted she needed every one of her complement of employees and could
 afford no cuts;  that she needed someone to do vouchers 100% of the
    While it is true that the increase in Tewksbury's "protected
 activity" was contemporaneous with the decision to abolish her position,
 it does not follow that management decided to eliminate her job due to
 such activity.  No evidence appears in the record to support a
 conclusion that either Esposito or Nixon opposed Tewksbury's union
 activities or took steps to frustrate her representational function.
 Contrariwise, management adjusted the employee's workload to accomodate
 her union duties in July, November and December of 1983.  Moreover,
 Respondent had rated Tewksbury as "highly satisfactory" for the latest
 period, i.e.  November 1, 1982-October 31, 1983.  The record reflects
 that, in agreement with Esposito, Director Nixon conclused it would be
 more efficient to establish a third Program Aide in lieu of having a
 voucher clerk.  Further, management decided a better staffing
 arrangement called for having the Program Aide perform the duties of
 said clerk and assign each Aide to two Loan Specialists with a defined
 territory.  One may disagree with Respondent's judgment in this respect
 and deny that the alleged versatility of the Program Aide warrants the
 addition of a third such position in place of the Occupancy Clerk.
 However, it does not lie with others to substitute their views in regard
 to efficiency of operations.  Unless it is shown that Respondent's
 action was a pretext for discriminatory motivation, one cannot fault an
 employer for its determination concerning such operation.
    Despite the fact that Tewksbury became more active after June, 1983
 in performing her union duties, including the filing of a grievance and
 unfair labor practice charges, I do not believe it has been shown that
 her job as Occupancy Clerk was abolished because of such activities.  No
 anti-unionism has been shown to exist, nor were any acts of interference
 or coercion directed against Tewksbury.  The evidence does not support
 an inference that her position was eliminated as a result of said
 employee's union activities, and I conclude that Respondent did not
 discriminate against Tewksbury by reason of such elimination in
 violation of the Statute.
    (2) Regarding Respondent's non-selection of Tewksbury as a Program
 Aide in April, 1984, General Counsel adverts to several factors in
 support of the contention that there was discriminatory motivation
 therefor.  It is maintained, inter alia, that said employee was very
 well qualified for the position and capable of handling that work;  that
 while Margaret Brasington was rated "satisfactory," Tewksbury had a
 higher performance rating;  that Nixon had intended to transfer
 Tewksbury laterally before the Union insisted upon merit staffing;  that
 Esposito and Nixon differed as to whether the latter was present at
 Brasington's interview;  and that said employee was selected on a
 subjective basis.
    Under other circumstances, which are not present herein, such factors
 might be more persuasive in concluding that the failure to select
 Tewksbury as a third Program Aide was illegally motivated.  None of the
 foregoing, however, militates against the conclusion that Respondent did
 not base its decision in this regard upon Tewksbury's union or protected
 concerted activities.  Thus, while not disputing that said employee was
 well qualified for the Program Aide position, management insists it
 chose Brasington because she showed more interest in wanting the job.
 The record supports the fact that, although Tewksbury asked to be
 considered for the position, she did evince a desire to gain experience
 in another area of work.  Moreover, in 1982 this employee declined the
 Program Aide position when asked if she'd be interested in the event an
 additional Aide was established.  It is true that management did not
 examine the performance appraisals and ratings in making a selection.
 However, one cannot substitute his judgment for that of the employer in
 choosing the applicant even though the basis be subjective in nature.
    Unless sufficient evidence appears in the record which reflects
 significant anti-union animus, the undersigned would be reluctant to
 conclude that the basis for Respondent's selection of Brasington, albeit
 deemed to be subjective, is a pretextual one.  As heretofore indicated,
 Respondent never interfered with Tewksbury's representational functions
 and, in fact, accommodated them.  It has not been shown that management
 -- despite having knowledge of her activities -- resented Tewksbury's
 union activities or ever attempted to limit or restrain the employee in
 performing them.  Under these circumstances I am not persuaded that
 Nixon's selection of Brasington over Tewksbury for the third Program
 Aide position was due to the latter's concerted activities.
 Accordingly, I conclude that the failure to so select Tewksbury has not
 been shown to be discriminatory under the Statute.
    Having concluded that General Counsel has failed to make out a prima
 facie case of discrimination under Section 7116 (a)(1),(2) and (4) of
 the Statute, based on the allegations herein, it is recommended that the
 Authority issue the following:
    The Complaint in Case No. 4-CA-40341 be, and the same is hereby,
                                       /s/ William Naimark
                                       Administrative Law Judge
    Dated:  July 2, 1985
    Washington, D.C.
                ---------------  FOOTNOTES$ ---------------
    (1) Also designated as "Occupancy Clerk."
    (2) This involved a very large funding program.
    (3) This charge resulted in the issuance on October 31, 1983 of a
 Complaint by the Regional Director, Region IV against Respondent.
    (4) This charge resulted in the issuance on December 14, 1983 of a
 Complaint by the Regional Director, Region IV against Respondent.
    (5) On November 4, 1983, Tewksbury was designated by the Union
 President as "Principal Union Representative."
    (6) Under Article 7, Section 7.04 of the collective bargaining
 agreement Tewksbury, in her position as "Principal Office
 Representative" was entitled to 50% official time where the office has
 100 or more employees.
    (7) Although the decision to abolish the Occupancy (Voucher) Clerk
 was made in December, 1983, the plan to do so -- as well as reestablish
 other positions -- was not approved till April 2, 1984.  The actual
 notice of a reduction-in-force from this position was issued on May 23,
    (8) Although Nixon testified he expected Tewksbury would bump someone
 when this position was abolished, no other job existed on her
 competitive level.
    (9) While the testimony of the participants varies to some extent re
 the particulars of the discussion, the undersigned sets forth the
 credited version of the relevant portion.
    (10) This employee was so rated during the period January
 1982-October 31, 1982, and for the period November 1, 1982-October 31,
    (11) While Nixon testified he was not present during the interview of
 Brasington, Supervisor Esposito testified she conducted the interview
 with the Director.  Inasmuch as Nixon was made aware, in either
 instance, that Brasington was more positive in wanting the position than
 Tewksbury -- which was the basis for his selection of the former -- I do
 not find it necessary to resolve this particular conflict in testimony,
 or whether an explicit recommendation was made by Esposito.