41:1212(95)CA - - Treasury, IRS, Washington, DC and IRS Service Center, Ogden, UT and NTEU - - 1991 FLRAdec CA - - v41 p1212

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[ v41 p1212 ]
The decision of the Authority follows:

41 FLRA No. 95













(Charging Party/Union)



August 15, 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 filed by both the General Counsel and the Union to the attached decision of the Administrative Law Judge. The Respondent filed an opposition to the General Counsel's and the Union's exceptions.(1)

The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by reprimanding a unit employee in reprisal for his participation in activities protected under the Statute. The Judge found that the reprimand of the employee was not motivated by the employee's protected activities as alleged. Accordingly, the Judge recommended dismissal of the complaint.

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 those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

Both the General Counsel and the Union in their exceptions contend that the Judge should have applied to this case the analytical framework set forth in Letterkenny Army Depot, 35 FLRA 113 (1990), in determining whether the Respondent violated section 7116(a)(2) of the Statute. Under this framework, the General Counsel must establish that the employee against whom the alleged discriminatory action was taken was engaged in protected activity and that consideration of such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. Id. at 118. If the General Counsel makes this required prima facie showing, the respondent may seek to establish, by a preponderance of the evidence, that there was a legitimate justification for its action and that the same action would have been taken even in the absence of the consideration of protected activity. Id. If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. Id. In this regard, we read the Judge's finding that the employee was disciplined not for his use of official time, but for his failure to abide by the work requirement letter, as a finding that the General Counsel and Union did not present a prima facie showing that the Respondent disciplined the employee for engaging in protected union activities. This finding was based on credited testimony and we affirm it.

The General Counsel and the Union assert that because the employee's immediate supervisor checked off the employee's time sheets and never denied the employee official time during the period in question, the Respondent lulled the employee into believing that he was in compliance with the work requirement letter and that his use of official time without strictly adhering to the work requirement letter was condoned by management. They argue that the Judge wrongly determined that the supervisor's initials on the employee's time sheet did not evidence her approval of the employee's use of official time. We disagree. The Judge determined, crediting the supervisor's testimony, that when she checked off and initialed the time sheet she was merely signifying that she had checked the calculations on the sheet and "certified that [employee's] addition was correct." Judge's decision at 9. We agree with the Judge that this was properly the subject of a credibility determination.(2) We have consistently held that the demeanor of witnesses is an important factor in resolving issues of credibility, and the Judge has the benefit of observing the witnesses. We will not overrule a Judge's determination regarding credibility of witnesses unless a clear preponderance of all relevant evidence


demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility finding. See Department of Housing and Urban Development, Region X, Seattle, Washington, 41 FLRA 363 (1991).

Further, we find that the evidence shows that the employee was fully aware of the requirements of the letter and the consequences if he failed to abide by the requirements of the letter and that failure to follow the mandates of the letter would be considered insubordination. Transcript at 25-28. In addition, the evidence shows that the supervisor did not simply allow the employee to take the official time without objection as the General Counsel and Union contend, but that she orally reminded him on a number of occasions that his failure to personally report to the work area each morning and to advise her of the approximate time he would be gone was contrary to the work requirement letter. Transcript at 99, 105, 113, 118 and Res