39:1542(136)CA - - Transportation, FAA, El Paso, TX and Enrique Canales - - 1991 FLRAdec CA - - v39 p1542
[ v39 p1542 ]
The decision of the Authority follows:
39 FLRA No. 136
FEDERAL LABOR RELATIONS AUTHORITY
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
EL PASO, TEXAS
DECISION AND ORDER
March 28, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by terminating an employee's administrative duties assignment because he had filed a grievance on behalf of the National Association of Air Traffic Specialists (the Union). The Judge found that no violation of the Statute had occurred and recommended that the complaint be dismissed.
The General Counsel filed exceptions to the Judge's decision. The Respondent did not file an opposition to the General Counsel's exceptions.
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. We affirm the rulings. However, contrary to the Judge, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute as alleged.
The facts, set forth more fully in the Judge's decision, are summarized below.
Enrique Canales is an air traffic control specialist at the Respondent's El Paso Flight Service Station (the Station). Air traffic control specialists perform such duties as controlling and maintaining flight services and briefing pilots on weather conditions and flight plans. Duties involving pilot contact are considered to be critical. At the time of the alleged incident, Canales was the Station representative for the Union and had held that position for approximately 3 years. In that capacity, he had filed grievances on behalf of bargaining unit employees.
Carlos Gonsalez, a second-line supervisor, has been the manager of the Station since 1981. In 1983, when employee Alfonso Rey was the union representative, Gonsalez threatened Rey following two meetings where Rey was the union representative. Tr. at 57-59. Specifically, Gonsalez stated that he "would not allow [Rey] to trade [shifts] with the other people on the floor[,]" and, as a result, Rey would be unable to attend night school. Id. at 58. Further, Gonsalez had previously been told by the Respondent's regional office "not to touch the [Union's] bulletin board" after referring to the Union's newsletter as "toilet paper." Id. at 37. In November 1986, Gonsalez discussed Canales' Union activity with Rey. Gonsalez asked Rey "what Canales 'was up to;' whether Rey was aware of the grievances Canales had been filing; did Canales keep the people informed and represent them; and suggested that Rey should run against Canales in the next election of a union representative." Judge's Decision at 4.
In June 1987, the Respondent's regional office included a report on Canales' performance and relationship to Gonsalez in its evaluation of the Station. The report stated, in part, that "[t]o avoid [the] appearance of retribution for past conflicts, Carlos [Gonsalez] must avoid any involvement [in monitoring Canales] unless it is initiated by the area supervisors." Id.
Canales became ill and was on sick leave from June 25, 1987, through July 6, 1987. If an air traffic control specialist is sick or is taking medication that could impair the employee's performance, the Respondent "may permit the individual to perform non-critical duties [such as]: flight data (keeping an eye on traffic and flight plans) and data communications (receiving and transmitting flight plans)." Id. at 3. If an employee has been medically disqualified from performing control tasks or is on "prohibitive" medicine, the employee "is not usually permitted to perform flight data or data communication duties." Id. However, the Respondent may assign employees who are medically disqualified, including those on medication that causes drowsiness, to perform administrative duties including filing, updating manuals, transmitting and receiving flight plans, and certain sorts of training. Id. at 3, 4. The Agency's regional flight surgeon determined that the medications Canales was required to take could result in drowsiness. Consequently, the flight surgeon issued a medical disposition form indicating that Canales was temporarily medically disqualified but could perform any type of administrative duties. Id. at 5.
Upon being told by the regional flight surgeon that one of the medicines that Canales was taking "was prohibitive since it caused drowsiness[,]" Gonsalez wrote to Canales on July 7, 1987 that "the employee was not to return to duty until agreed to by [the regional flight surgeon]." Id. at 6. On July 9, 1987, Canales reported to Gonsalez's office and "asked to be given administrative duties as allowed by the doctor." Id. Gonsalez denied the request and told Canales that he "was to be on sick leave." Id. When Canales asked why he was to be on sick leave, Gonsalez told him to call the flight surgeon and "to leave the office." Id. Canales called the doctor and was told that he could perform administrative duties. Canales reported what he had been told by the doctor to Carl Hendrickson, one of his immediate supervisors. Hendrickson stated that "he saw no problem." Id. Canales again met with Gonsalez and "informed the manager that [the regional flight surgeon] recommended administrative duties for [him]." Gonsalez told him that he "would be on sick leave; that there was no administrative work for him to do." Id.
The next day, Friday, July 10, Hendrickson and Dino Baca, another first-line supervisor, met with Gonsalez and "asked him to approve administrative duties for Canales." Id. Hendrickson and Baca argued that to do so would enhance "human relations." Id. They also stated that they "would make up work for Canales to do." Id. Gonsalez "testified that there were no extra duties for Canales to perform, but he consented to the supervisors' request." Id. Gonsalez sent Canales a memorandum that day advising him of his assignment to administrative duties effective Monday, July 13. The memorandum further stated that the assignment was "contingent on the availability of meaningful administrative work and may be terminated for lack thereof." Id. at 7.
Hendrickson told Canales that "his administrative time was approved, that he would be posted for two weeks and then the situation would be evaluated to decide if there were meaningful duties left for him to do." Id. Hendrickson "did not assign Canales any duties involving flight data and data communications because [the regional flight surgeon] said not to do so." Id. During the second week of Canales' assignment, Gonsalez discovered that Canales was away from his duty area and "wandering around" the Station. Id.
On July 23, 1987, Canales filed a grievance with Gonsalez on behalf of another employee concerning the replacement of a desk. Upon receiving the grievance, Gonsalez "remarked it was a nit-picky and mickey mouse grievance." Id. The next day, July 24, Gonsalez prepared and presented Canales with a memorandum informing Canales that "Gonsalez had determined there no longer existed enough meaningful administrative work to justify the continued assignment to Canales of administrative duties." Id. Gonsalez testified that on or about Wednesday, July 22, he and Baca met and decided that there were no meaningful administrative duties for Canales to perform. Tr. at 146-47. Hendrickson testified that on Friday, July 24, he, Gonsalez, and Baca discussed for the first time taking Canales off administrative duties. Tr. at 169-70, 185. Canales' assignment was terminated at the end of his shift on July 24 and Canales was required to take 3 days of sick leave before being certified to return to traffic control duties by the regional flight surgeon.
The Respondent maintains an administrative staff of five employees, including first-line supervisors Hendrickson and Baca. No employee had previously been removed from an administrative duties assignment due to a lack of "meaningful" work. Judge's Decision at 11. One employee who was temporarily medically disqualified from performing control duties, Jefferson Goldstein, "was assigned to administrative duties for a month." Id. at 5. Both Hendrickson and Goldstein testified that there was not sufficient administrative work for Goldstein to perform, and Goldstein stated that on one day he took sick leave because he "became too bored to stay at work." Tr. at 74, 179. Goldstein remained on administrative duties for 10 or 11 more days following the day he took sick leave. Tr. at 74.
III. Administrative Law Judge's Decision
The Judge stated that in order to establish that the employer has discriminated against an employee in violation of section 7116(a)(2) of the Statute, the General Counsel must establish a prima facie case of discrimination. A prima facie case is made when it is shown that "an employee was engaged in protected activity known to the employer, and that said conduct was a motivating factor in an agency's decision which adversely affected the employee." Judge's Decision at 8, citing 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, 30 FLRA 1013 (1988) and Internal Revenue Service, Washington, D.C., 6 FLRA 96 (1981). The Judge noted that once a prima facie case is established, "the agency is required to show by a preponderance of the evidence that it would have reached the same decision . . . in the absence of the protected activity." Id. at 8 n.5.
The Judge found that "[n]o question arises with respect to the fact that Canales was engaged in protected activity when he filed a grievance" on July 23, 1987 and that the "Respondent had knowledge of such activity[.]" Id. at 8.
The Judge found, however, that "a sharp dispute exists as to whether the action taken by management toward Canales was motivated by union animus so as to constitute discrimination." Id. In this regard, the Judge looked at the following factors asserted by the General Counsel as evidence of discrimination: (1) the timing of the incident; (2) the history of union animus on the part of Gonsalez; and (3) the disparate treatment received by Canales as he was the only employee to have administrative duties terminated under similar circumstances.
As to the timing of the incident, the Judge noted that "[a]t first blink it may be viewed with suspicion that the removal of Canales from administrative duties followed the day after the grievance was filed." Id. at 9. However, the Judge also noted that "[w]hile it may be concluded that the decision to take this action was made on July 24, record facts show the[r]e were ongoing discussion[s] between supervisor Hendrickson and Gonsalez that there were not enough meaningful duties for Canales to perform." Id. Moreover, the Judge stated that "on July 22 Gonsalez spoke to supervisor Baca at which time they also came to the same conclusion, and Gonsalez testified he decided then to take Canales off administrative duties." Id. The Judge concluded that "[t]hese facts militate against considering the time sequence as str[o]ng support for raising an inference of illegal motivation." Id.
With respect to the history of union animus displayed by Gonsalez, the Judge found that "a very unfriendly relationship existed between Canales and Gonsalez." Id. In this regard, the Judge noted that "Gonsalez even suggested in November 1986 that another employee . . . run against Canales for union representative." Id. However, "[d]espite this background and a few comments made by Gonsalez concerning the Union," the Judge found that he was "unable to conclude that the manager evinced such pronounced anti-unionism so as to warrant the inference that it formed the basis for his action on July 24." Id. Further, the Judge noted that Canales had previously filed several other grievances and that "[w]hile Gonsalez did question Rey in 1986 [on] whether the latter was aware of grievances filed by Canales," there was "no showing that the manager confronted Canales in regard to any grievances he filed in the past." Id. at 9-10 (citation to footnote omitted). The Judge further noted that while Gonsalez's comment that the July 23 grievance was "nit-picky" in nature "may reflect annoyance on the pa[r]t of Gonsalez[,]" it did not "give rise to a finding of intense opposition or hostility to the practice" of filing grievances. Id. at 10 n.6. The Judge concluded that the "animus exhibited by Gonsalez was directed toward Canales as an individual and not based on his status as union representative." Id. at 10. Under these circumstances, the Judge found that the "General Counsel has not established union animus upon which to base a finding of discriminatory action by [the] Respondent." Id.
As to the claim that Canales was the victim of disparate treatment, the Judge again found that the evidence did not warrant an inference that the termination of Canales' administrative duties assignment was discriminatorily motivated. Noting the General Counsel's argument that other employees who were medically disqualified and assigned administrative duties performed flight data and data communications duties, the Judge found that the "illnesses befalling [the employees noted by the General Counsel] were not of the same serious nature as that suffered by Canales" and that, unlike with Canales, "[n]o particular problem seemed apparent in assigning [the employees noted by the General Counsel] to flight data duties." Id.
The Judge also noted the General Counsel's stress on the fact that Canales' administrative duties assignment was allegedly terminated for lack of meaningful work even though "employee Goldstein and others continued with such duties despite insufficient work being available for them." Id. at 11. However, the Judge rejected this as evidence of disparate treatment, noting that: (1) "supervisor Hendrickson testified there were no meaningful duties for Canales to perform when the latter was given administrative duties on July 10"; (2) "there were ongoing discussions which Gonsalez had with the supervisors as to the fact that Canales had little work to do"; and (3) "there is a regular group which handles [administrative] duties, [so] one could well anticipate that an employee assigned such work would not continue to perform these duties for an extended time." Id. Although "management did not terminate administrative duties of other air traffic control specialists," the Judge found it "unreasonable . . . [to] foreclose [the] Respondent from ever doing so when no meaningful work is available[.]" Id.
In summary, the Judge found that the Respondent did not discontinue Canales' administrative duties on July 24, 1987 in retaliation for the grievance Canales filed on July 23, 1987 and, therefore, concluded that the General Counsel did not establish a prima facie case of unlawful discrimination within the meaning of section 7116(a)(2) of the Statute. Accordingly, the Judge recommended that the complaint be dismissed.
IV. The General Counsel's Exceptions
The General Counsel argues that the Judge erred in failing to find that the General Counsel established a prima facie case that Canales was discriminated against because of his union activity. In this regard, the General Counsel contends that the Judge failed to: (1) consider all of the evidence presented on the issue of union animus; (2) find that there was disparate treatment; and (3) consider the totality of the circumstances and evidence.
As to the Judge's finding on union animus, the General Counsel argues that, contrary to the Judge's determination, "the evidence of Gonsalez' animus toward the Union was indeed serious" and, therefore, was "sufficient to find that Gon[s]alez' termination of Canales' administrative duty detail assignment was  because of his union activity." Exceptions at 11, 12. In this regard, the General Counsel notes the following instances of union animus on the part of Gonsalez: (1) Gonsalez's attempt "to secure a competitor to run against Canales" in a Union election was "directed straightforwardly against Canales"; (2) Rey, the previous union representative, testified that after particularly "heated" grievance or labor-management meetings with Gonsalez, "Gonsalez would threaten to deprive Rey of his ability to change shifts with other employees"; (3) there was "unrefuted testimony that Gonsalez once stated he would use the Union newsletter as to[il]et paper"; and (4) "Gonsalez once approached Rey and questioned him extensively concerning the subject of Canales' union activity, especially with respect to his filing of grievances." Id. at 11-12.
With respect to the Judge's finding on disparate treatment, the General Counsel contends that "the evidence presented at [the] hearing clearly established that Canales was the only employee at the El Paso Flight Service Station to have his administrative duty detail terminated for any reason." Id. at 13. Moreover, the General Counsel notes that employee Goldstein, who had not been involved in any union activity, had "been placed on an administrative duty assignment for an extended period of time" and even though "there were not always administrative duties avai[l]able for him to perform,  his administrative duty assignment was never terminated." Id. at 14.
The General Counsel disputes that the disparate treatment of Canales and Goldstein is justified because there were no "meaningful" administrative duties for Canales to perform. Specifically, the General Counsel contends that "Gon[s]alez admitted that there were administrative duties available for Canales when he terminated the detail" and "[n]o definition of 'meaningful administrative duties' was ever provided[.]" Id. As "the one employee who filed a grievance had his assignment terminated the day after he filed a grievance even though there was work to perform[,] and the employee who had no union activity remained on his detail for 11 days even though there was no work for him to perform[,]" the General Counsel argues that "there was disparate treatment and no reasonable basis for it[.]" Id. at 14, 15. Moreover, because there is no reasonable basis for the disparate treatment, the General Counsel maintains that "it leads directly to the conclusion that the disparity was based on [Canales'] union activity." Id. at 15.
Finally, the General Counsel argues that the Judge failed to view "the totality of the circumstances and evidence[.]" Id. (emphasis omitted). In this regard, the General Counsel contends that while the Judge "noted that there was validity to each element of proof submitted by the General Counsel," specifically, the timing, the animus, and the disparate treatment, the Judge improperly "discounted each one by noting that standing alone each was insufficient." Id. at 16.
V. Analysis and Conclusions
We disagree with the Judge's conclusion that the General Counsel failed to establish that the Respondent's decision to terminate Canales' administrative duties assignment was motivated by his union activity. We find that Canales' filing of a grievance on July 23, 1987 was a motivating factor in Gonsalez's decision to terminate Canales' administrative duties assignment and, therefore, that the General Counsel established a prima facie case of discrimination. Further, we conclude that the Respondent's asserted reason for its action was pretextual and that the Respondent did not demonstrate that there was an additional, legitimate justification for its action. Accordingly, we find that the Respondent violated section 7116(a)(1) and (2) of the Statute.
A. The Authority's Decision in Letterkenny
During the pendency of this case, the Authority issued its decision in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). In that case, we reaffirmed that:
In all cases of alleged discrimination, whether "pretext" or "mixed motive," the General Counsel must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment.
Letterkenny, 35 FLRA at 118.
If the General Counsel makes the required prima facie showing, a respondent may seek to rebut that showing by establishing, by a preponderance of the evidence, the affirmative defense that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. Id. at 122-23. This analysis, we noted, is consistent with the framework applied in the private sector by the National Labor Relations Board. Letterkenny, 35 FLRA at 122.
B. Application of Letterkenny in this Case
As noted by the Judge, Canales was engaged in union activity when he filed a grievance on July 23, 1987, and the Respondent was aware of that activity. However, the parties dispute whether Canales' union activity was a motivating factor in the Respondent's decision to terminate Canales' administrative duties assignment. Based on the evidence of union animus and the timing of the termination, we find that Canales' union activity was a motivating factor in the Respondent's decision to terminate Canales' administrative duties assignment.
Contrary to the Judge, we agree with the General Counsel that the record reveals evidence of union animus on the part of Gonsalez. For the following reasons, we conclude that Gonsalez displayed behavior clearly indicating animus toward: (1) the Union in general; (2) Canales as a union representative; and (3) the particular grievance filed by Canales just prior to the termination of his administrative duties assignment.
The Judge noted that Gonsalez made "a few comments . . . concerning the Union[.]" Judge's Decision at 9. These comments include referring to the Union's newsletter as "toilet paper" and threatening to prevent employee Rey from trading shifts following two meetings where Rey was the union representative. Tr. at 37, 57-59. These comments indicate hostility toward the Union and its representatives. While these events occurred approximately 3 years before the current dispute, when viewed in conjunction with other evidence of animus toward the Union, they are nonetheless of significant probative value.
For instance, in the latter part of 1986, Gonsalez approached Rey and questioned him about Canales' union activity. Particularly, Gonsalez asked whether Rey was aware of the grievances Canales had filed, whether Canales kept the employees informed, and whether he was representing the employees. Judge's Decision at 4. Gonsalez then suggested that Rey "run against Canales in the next election of a union representative." Id. In our view, such an attempt by the Respondent to interfere in the Union's affairs and to rid itself of Canales indicates animus. Moreover, record evidence shows that the conflict between Gonsalez and Canales was recognized by the Agency. In June 1987, shortly before Canales requested administrative duties, Gonsalez's superiors at the regional office cautioned Gonsalez about getting involved in counseling Canales about his performance in order to "avoid [the] appearance of retribution for past conflicts[.]" Id. Finally, the Judge noted that when Canales presented Gonsalez with a grievance on July 23, 1987, Gonsalez remarked that "it was a nit-picky and mickey mouse grievance." Id. at 7.
Based on the evidence noted above, we find that Gonsalez expressed animus toward the Union and toward Canales as a union representative. Accordingly, we reject the Judge's finding that "the animus exhibited by Gonsalez was directed toward Canales as an individual and not based on his status as union representative." Id. at 10. Accordingly, we disagree with his conclusion that the General Counsel failed to establish union animus on the part of Gonsalez. Id. at 9.
We also find, contrary to the Judge, that the timing of Gonsalez's action is significant. Despite the fact that Gonsalez believed from the beginning that there were no meaningful administrative duties for Canales to perform, he agreed to assign Canales administrative duties. Once Gonsalez assigned Canales administrative duties, he did not act to remove Canales from that assignment until just after Canales filed the grievance. Therefore, the fact that Canales' administrative duties assignment was terminated immediately after he filed a grievance strongly suggests an improper motivation on the part of Gonsalez. See U.S. Department of the Navy, Naval Aviation Depot, Naval Air Station Alameda, Alameda, California, 38 FLRA 567, 568 (1990) and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 35 FLRA 891, 900 (1990), where the Authority noted the significance of the timing of management actions in determining whether the agencies had discriminated against the employees within the meaning of section 7116(a)(2) of the Statute.
In view of Gonsalez's prior anti-union statements, as well as the timing of the termination and the fact that Gonsalez made disparaging remarks about the grievance that Canales filed on July 23, we find that Canales' union activity was a motivating factor in Gonsalez's decision to terminate his administrative duties assignment. Therefore, consistent with Letterkenny, we find that the General Counsel established a prima facie case of discrimination. See Pension Benefit Guaranty Corporation, 39 FLRA No. 80 (1991).
Having found that the General Counsel established a prima facie case, we must determine whether the Respondent has established by a preponderance of the evidence that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. Letterkenny, 35 FLRA at 122-23.
The Respondent argued before the Judge that the managers had assigned Canales "a period of administrative duties as a gesture of goodwill" and that the managers met "on July 23 and determined that no meaningful justification existed to continue the assignment." Respondent's Post-Hearing Brief at 2. We construe the Respondent's argument as a contention that there was a legitimate justification for its action because its decision to terminate Canales' assignment was made before the grievance was filed.
We reject the claim that the decision to take Canales off administrative duties was made before the grievance was filed. In this regard, we note that it is undisputed that the grievance was filed on July 23. Supervisor Hendrickson testified that on July 24, he and the other supervisors discussed for the first time taking Canales off administrative duties. Tr. at 169-70, 185. Moreover, Gonsalez testified that on "approximately" July 22 he determined that there were no meaningful administrative duties for Canales to perform. Tr. at 147. Finally, it is undisputed that the decision to take Canales off administrative duties was communicated to Canales for the first time on July 24. In these circumstances, we find that the Respondent did not demonstrate that its decision to terminate Canales' assignment was made before the grievance was filed.
Further, we note the General Counsel's argument that Canales had been subjected to disparate treatment. In this regard, we note that it is undisputed that no employee had previously been removed from an administrative duties assignment due to a lack of "meaningful" work. Judge's Decision at 11. Both supervisor Hendrickson and employee Goldstein testified that Goldstein was assigned to administrative duties for a month, even though there was not sufficient administrative work for him to do. Tr. at 73-74, 179. Moreover, Gonsalez testified that administrative duties are always available for his staff and have been "made available" for other medically disqualified employees such as Goldstein. Tr. at 135-37. However, such duties were not made available for Canales. Accordingly,