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30 FLRA No. 111

UNITED STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE
AND UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT
NEW ORLEANS, LOUISIANA

                   Respondent

      and

NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 6

                   Charging Party

Case No. 6-CA-60466

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding. He found that the Respondent had not engaged in the unfair labor practices alleged in the complaint.

The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor - Management Relations Statute (the Statute) when (1) a manager evaluated an employee's performance during a detail as deficient because of the employee's union membership and activities and (2) when another manager subsequently refused to appraise the employee's performance as acceptable for a promotion action because of the earlier adverse evaluation and his union membership and activities.

The General Counsel filed exceptions to the Judge's decision. The Respondent filed cross exceptions to the decision and an opposition to the General Counsel's exceptions. [PAGE]

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision, the submissions of the General Counsel and the Respondent and the entire record, we adopt the Judge's findings, conclusions, and recommended Order dismissing the complaint.

Issued, Washington, D.C., January 25, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p2 ]

UNITED STATES DEPARTMENT OF
THE TREASURY, INTERNAL
REVENUE SERVICE AND UNITED
STATES DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE
SERVICE, NEW ORLEANS DISTRICT
NEW ORLEANS, LOUISIANA

              Respondent

    and

NATIONAL TREASURY EMPLOYEES
UNION AND NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 6

              Charging Party

Case No. 6-CA-60466

Robert M. Finer, Esq.
         For the Respondent

Christopher J. Ivits, Esq.
         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 October 27, 1986, by the Regional Director for the Federal Labor Relations Authority, Region VI, a hearing was held before the undersigned on February 24, 1987, at New Orleans, Louisiana.

This case arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based on a charge filed on August 1, 1986, by National Treasury Employees Union and [PAGE] National Treasury Employees Union Chapter 6 (herein collectively called the Union and, at times, referred to as NTEU and Chapter 6) against United States Department of the Treasury, Internal Revenue Service, and United States Department of the Treasury, Internal Revenue Service, New Orleans District, New Orleans, Louisiana (herein collectively called Respondent and, at times, referred to as IRS and New Orleans District).

The Complaint alleged, in substance, that (1) on or about February 5, 1986, Respondent by group manager Zoe Roberts issued an adverse memorandum to Perry Brown, an employee-steward regarding his work while on temporary detail in the Problem Resolution Program (PRP), a division of the Taxpayer Service in the New Orleans Office; (2) on or about March 5, 1986, Respondent, by its Group Manager, Field Branch, Larry White, refused to issue Perry Brown an acceptable job element appraisal for the promotion vacancy of Developmental Management Trainee Revenue Office based on (a) the adverse memorandum issued on February 5, 1986, by Zoe Roberts concerning Perry Brown, (b) the union activity of Brown - all in retaliation for, and in consideration of, Perry Brown's membership in, and activities on behalf of, the Union, including his role as Union steward. Such conduct by Respondent is alleged as violative of Section 7116(a)(1) and (2) of the Statute.

Respondent's Answer dated November 13, 1986, denied the foregoing allegations in the Complaint as well as the commission of any unfair labor practices.

All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter briefs were filed 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 all times material herein NTEU has been the exclusive representative of professional and nonprofessional employees of the Internal Revenue Service, including its various regional and district offices, one of which is the New Orleans District Office. [ v30 p2 ]

2. At all times material herein Chapter 6 has been the local representative of NTEU at the New Orleans District for the purposes of collective bargaining on limited local issues, and Chapter 6 has represented unit employees assigned to the New Orleans District office.

3. William Perry Brown 1 has been employed by the Internal Revenue Service for six years. At the New Orleans District office he has been a Revenue officer for the past three years. Since January, 1986, Brown has been supervised by Larry White, Group Manager of the Collection Division. For a period of two years Brown has been supervised by Zoe Roberts, Group Manager of the Taxpayer Service Branch, when he was in the Office of Collection Representation. Roberts also supervised Brown from October 22, 1985, until January 22, 1986, when the employee was detailed to the Problem Resolution Program (PRP). 2

4. In addition to being a union member during his term of employment, Brown served as union steward for the Collection Division for about three years.

5. A very large backlog of work developed in PRP, which is part of the Collection Division, and it became necessary to send over a group of Revenue Officers on detail. Several of the detailees, including Brown, had no prior PRP training. Team leaders had the responsibility of supervising or handling those individuals sent to PRP on detail.

6. In the first two months of this new duty Brown performed clerical duties. He stuffed envelopes and addressed form letters until the middle of December when he went on Christmas leave. Upon his return Brown and others were moved into a large room which Roberts also occupied. He was assigned PRP duties and his work was overseen by Janet Cieutat, Anne Phillips and Barbara Marchese at separate time periods. [ v30 p3 ]

7. In mid - January, 1986 3 Brown overheard Roberts speaking on the telephone. He heard the supervisor saying, "Gee, why do you want to have that E.J., he's no good, that's a terrible guy." Whereupon Brown got up from his desk, went over to Roberts and said her remarks were improper. He stated that the man referred to in the phone conversation, thereafter identified as employee E.J. Harris, deserved to be treated with dignity and Roberts was running the man down. Brown commented it could be a cause for a class action suit, that all males - especially black ones -have the lowest menial job and were not receiving job opportunities.

The following day Brown discussed the latter again with Roberts. He told Roberts it should not go on in the federal government, that her attitude was bad, and she couldn't continue to say things like she did on the phone. Brown brought five black males and one white male into Roberts' office. Each expressed how he felt and agreed with Brown's statements re their being treated unfairly. Roberts listened but did not agree as to such treatment. 4

8. Following his discussion with Roberts, and on the same day, Brown talked to Branch Chief of PRP, Phyllis Gordy, who supervised Roberts. He told Gordy about the statement made by Roberts on the phone and complained to Gordy about the bad morale which, he mentioned, was due to Roberts' behavior. The Branch Chief was receptive and agreed to conduct some meetings to try and improve relations with the employees. [ v30 p4 ]

9. At a union-management meeting on January 23 Brown mentioned the telephone conversation in which Roberts stated that "E.J." was no good. Dewayne Rorex, Chief of Collections, admitted he was the party to whom Roberts made the statements in the phone conversation. A few days later Brown met with Rorex, who said that Roberts yells at everyone, and Rorex agreed to take some action in the matter.

10. Based largely on feedback from Anne Phillips, who was Brown's team leader, Roberts issued a memorandum to Larry White on February 5 re Brown's performance. The said memorandum (G.C. Exhibit No. 3) recited, in substance, that during his detail to PRP Brown did not utilize good judgment in resolving his work, failed to follow correct procedures in processing matters, made errors on cases, and showed no willingness to learn his dates. 5

11. Three of Brown's team leaders: Anne Phillips, Janet Cieutat, and Barbara Marchese testified that, while Brown was on detail and under their supervision, he did not perform satisfactorily and shared no inclination to improve his performance. Phillips stated that Brown made gross mistakes, paid little attention to his job, and continued to make errors. She testified that the memorandum issued by Roberts accurately reflects the employee's performance while she was his team leader. Testimony by team leader Marchese reflects that, while Brown was under her supervision, the employee did not need a lot of training to perform his task adequately since most of his work was clerical in nature. However, Brown did not want to do the work. Roberts also issued adverse memos on February 5, re the work performance of Wanda Jackson and James Saik while they were on detail to PRP. She did issue favorable memos for about 14 other employees on detail to that branch.

12. The testimony of Laura Allday, secretary to the Chief of the Taxpayer Service, reflects that she did some typing for Zoe Roberts, including employee evaluations. Further, that at about the time the February 5 memo was issued, Roberts handed her a memo to be typed and stated "well, I'll get him," and that Brown's name was mentioned. Allday also testified that the February 5 memo was the only one she typed for Roberts concerning Brown. [ v30 p5 ]

Brown testified that later in April he spoke to Allday re the memo written by Roberts on February 5 which Allday typed; that the secretary mentioned Roberts is sort of a vindictive person; that when Roberts gave the secretary the memo to be typed, Roberts said, "I'm going to get even with that Perry -- I'm going to fix him, this will fix him."

Roberts initially testified she did not recall saying to Laura Allday, "I'll get him," referring to Brown. Continuing her testimony, Roberts stated she could have said "this will get him" or something to that effect.

The foregoing testimonies persuade me, and I find, that when Roberts handed Allday the memo on February 5 for typing, which concerned Brown's work performance, she did state that "I'll get him," and words to the effect that the memo would "fix" Brown. 6

13. In February Brown applied for the position of Developmental Management Trainee. On March 5 Larry White, Group Manager of the Collection Division, met with Brown regarding the employee's application for the said position. White referred to the letter or memo from Zoe Roberts which evaluated Brown adversely. He showed it to Brown, stating that the employee should withdraw his application since the evaluation would kill the job for him.

A copy was then given to Brown by the Group Manager. On March 12, Brown withdrew his application for the position. The original memo by Roberts was removed from Brown's file and it was given to him.

14. When Brown learned about the memo which Roberts had written concerning his work performance, he spoke to Karen Durand who is a Revenue Agent and also an EEO Counselor. He complained that Roberts was discriminating against him because of his sex and age. [ v30 p6 ]

15. Within a week or two later Durand talked to Roberts re the memo which the latter had written concerning Brown. 7 Durand asked the supervisor why she didn't have anything positive to state about the employee. Roberts replied:

" . . . he was always off doing union stuff, and he was never at his desk, and he was always around talking to other people --and having uprisings in the group, and that sort of thing."

Conclusions

General Counsel makes two principal contentions herein: (1) the adverse memorandum issued by Zoe Roberts on February 5, 1986, concerning Brown was as a result of the employee's membership in and activities on behalf of the Union; (2) the refusal by group manager Larry White on March 5, 1986 to issue an acceptable job element appraisal to Brown, in respect to his application for the position of Developmental Management Trainee Revenue Officer, was due to the aforesaid adverse memorandum and because of Brown's membership in and activities on behalf of the Union. As such it is maintained that Respondent violated section 7116(a)(1) and (2) of the Statute.

In a lead case the Authority determined the proper test to be applied in situations where considerations of an employee's protected activities played a part in a decision adversely affecting an employee. It was enunciated in Internal Revenue Service, Washington, D.C., 6 FLRA 96, that the General Counsel shoulders the burden of making a prima facie showing that an employee was engaged in protected activity, and that this conduct was a motivating factor in an agency's decision adversely affecting the individual. After this is established the agency is required to show, by a preponderance of the evidence, that it would have reached the same decision even in the absence of protected activity. If it is established that the same action or decision of the agency would have taken place in the absence of the protected activity, no violation of 7116(a)(1) and (2) will be found. If the converse is established, a complaint alleging such violation will be sustained. This test in determining whether a violation exist in mixed motive cases has been followed by the Authority. See Equal Employment Opportunity Commission, 24 FLRA 851. [ v30 p7 ]

Turning to the case at bar, I am persuaded that General Counsel has made out a prima facie case that Brown's activities as union steward played a part in the appraisal as written by Group Manager Roberts on February 5 concerning Brown's work performance while he was detailed to PRP. This conclusion is supported by the statement made by Roberts to Revenue Agent and EEO Counselor Durand when the latter inquired as to the reason nothing positive was stated about Brown in that memorandum. The remark by Roberts to Durand that Brown ". . . was always off doing union stuff . . . and having uprisings in the group and that sort of thing" clearly warrant the inference that his union activities were a motivating factor in, at least, a reluctance by Roberts to make any favorable comment. This statement by Roberts, together with Brown's actions wherein he protested the supervisor's down grading other employees or not treating them fairly, also make it clear that Brown's union and protected activities were well known to management.

As further indication of discriminatory motivation on Roberts' past, General Counsel adverts to the statement made by the supervisor to secretary Allday on February 5 when the latter typed the memorandum re Brown's performance as a detailee. Referring to the said memorandum about Brown, the group manager stated she would "get" the employee, or words of the effect that "this will fix him" (Brown). While the words are, in essence, retaliatory in nature, I am not convinced they were as a reprisal for Brown's union or protected activities. Record facts show, and Roberts testified, the supervisor was angry at Brown because of his failure to perform adequately and ease the burden of the workload at PRP. The team leaders had reported to Roberts re Brown's inadequate performance, and the manager had ample reason to become irritated and vexed as a result thereof. 8

Nevertheless, I am convinced that, based on the record testimony herein, Respondent's Group Manager Roberts would have issued the adverse memorandum concerning Brown's work performance even in the absence of his protected conduct. Team leaders Phillips, Cieutat, and Marchese all testified that Brown performed poorly, showed little inclination to [ v30 p8 ] improve, and displayed no willingness to learn his duties while on detail at PRP. It appears that Brown made many mistakes and did not do a thorough job; that the team leaders informed Roberts of the employee's shortcomings and mistakes made by Brown while on the detail. 9 The complaints by Brown's supervisors during his detail were, in my opinion, justification for the adverse memorandum issued by Roberts. There is little reason to believe that Roberts would not have issued a poor report as to Brown. She issued adverse memos on February 5 for employees Wanda Jackson and James Saik who were also on detail, and note is taken that these evaluations were similar in nature to her appraisal of Brown. Further, since it is concluded that Respondent's official would have issued a negative report on Brown's work performance, I find no basis for the contention that manager White discriminatorily refused to issue an acceptable appraisal for Brown in respect to his application for a new position. 10 No showing has been made, nor does it appear, that White's conduct on March 5 was due to any factor other than the performance appraisal written by Roberts.

Having concluded that, despite the prima facie case presented by the General Counsel, Respondent has met its burden of establishing that it would have rendered the same critical report of Brown's work performance, I conclude that Respondent did not violate the Statute as alleged.

While the remarks by Roberts to Durand concerning Brown's union activities might constitute interference, restraint and coercion under Section 7116(a) (1) of the Statute, the Complaint contains no such allegation. Accordingly, I make no finding in that regard.

On the basis of the foregoing, it is recommended that the Authority adopt the following: [ v30 p9 ]

ORDER

IT IS HEREBY ORDERED that the Complaint in Case No. 6-CA-60466 be, and the same is hereby, dismissed.

WILLIAM NAIMARK Administrative Law Judge

Dated: July 10, 1987 Washington, D.C. [ v30 p10 ]

FOOTNOTES

Footnote 1 The same individual is named Perry Brown in the Complaint, and he is referred to in the transcript at times as "Perry".

Footnote 2 This section took care of problems which could not be solved or handled through normal channels.

Footnote 3 Unless otherwise indicated, all dates herein after mentioned, occur in 1986.

Footnote 4 The facts with respect to the statement which Brown heard Roberts make on the telephone, as well as what occurred in his office the next day, represent the version credited by the undersigned. Note is taken that Roberts initially denied that Brown ever discussed the fact that she discriminated against males and black males in particular. She then testified that Brown did discuss it with her one morning; that he attempted to get a white male to come into her office and attest to discrimination but the individual refused. I find Brown's testimony to be straightforward and more reliable in respect to these events.

Footnote 5 Roberts also received feedback from Brown's other team leaders concerning Brown's poor performance.

Footnote 6 The record also reflects that Roberts was angry at Brown for not helping out when his assistance was needed; that the employee's performance was inadequate and his attitude poor, which caused Roberts to react adversely toward Brown. The record does not support a finding that, during his detail to PRP, Brown's work performance was thorough and satisfactory.

Footnote 7 Durand's testimony re this conversation concerning Brown is unrefuted.

Footnote 8 While it may be argued that Roberts was "fixing" Brown with the adverse memorandum due to his intercession in January on behalf of other employees, I do not find a sufficient nexus between the events to so conclude.

Footnote 9 Although the General Counsel adverts to the fact that training was not afforded Brown while in detail, record facts disclose that many of the employee's tasks involved routine duties for which no training was required.

Footnote 10 Note is taken that the adverse memorandum written by Roberts was not placed in Brown's file and that the original was given to him. Further, that despite the alleged discrimination re the application for a new position by Brown, the General Counsel in its brief limited the requested remedy to a cease and desist order.

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