[ v21 p698 ]
The decision of the Authority follows:
21 FLRA No. 88 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, COLUMBIA AREA OFFICE COLUMBIA, SOUTH CAROLINA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO 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 complaint. 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 Clerk. 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 position. 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. ORDER 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 DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, COLUMBIA AREA OFFICE COLUMBIA, SOUTH CAROLINA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party William C. Cregar, Esquire William E. House For the Respondent Linda Norwood, Esquire Michael Cornfield, Esquire For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION 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 considered. 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 Branch. Conclusions 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 time. 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: ORDER The Complaint in Case No. 4-CA-40341 be, and the same is hereby, dismissed. /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, l984. (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, 1983. (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.