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U.S. Federal Labor Relations Authority

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42:0177(13)CA - - Customs Service Region IV, Charleston District, Charleston, SC and NTEU - - 1991 FLRAdec CA - - v42 p177

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[ v42 p177 ]
The decision of the Authority follows:

42 FLRA No. 13









(Charging Party/Union)



September 16, 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 exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by placing a unit employee on a Performance Improvement Plan (PIP) in retaliation for having filed a grievance against her supervisor. The Judge found that the General Counsel failed to prove by a preponderance of the evidence that the Respondent had violated the Statute, 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.(1)

In Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) the Authority set forth the analytical framework to be applied in determining whether a respondent violates section 7116(a)(2) of the Statute. The Authority reaffirmed that the General Counsel bears the burden of establishing by a preponderance of the evidence that an unfair labor practice has been committed. Under the Letterkenny 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 findings that the employee's supervisor had decided to issue the PIP and had, in fact, drafted the PIP the week prior to the employee's filing of the grievance, as a finding that the General Counsel did not present a prima facie showing that the Respondent discriminated against the employee for engaging in protected activity. These findings were based on credited testimony and we affirm those findings.

The General Counsel and the Union assert that the Judge incorrectly determined that the evidence did not establish that the PIP was issued in retaliation for the employee's filing of a grievance. They argue that the Judge's crediting of the uncorroborated testimony of the supervisor was contrary to the evidence presented and that a prima facie case was established, which shifted the burden of proof to the Respondent. We disagree.

The Judge determined, crediting the supervisor's testimony, that the supervisor had decided to issue the PIP after closely observing the employee's work performance the week before she filed the grievance because her performance was deficient. Although it was the close monitoring of the employee that led to the filing of the grievance, the Judge found, as noted, that the decision to issue the PIP was made prior to the filing of the grievance. In this regard, the Judge found that the supervisor credibly testified that: (1) on the Thursday before the grievance was filed, he decided to put the employee on the PIP; (2) he came to this conclusion after discussing the matter with his superior and consulting with a labor relations staff person in Washington, D.C.; and (3) he wrote, or at least began, a draft of the PIP and gave it to his secretary for typing on the Friday before the grievance was filed. 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).

Consequently, we find that the Respondent did not violate section 7116(a)(1) and (2) of the Statute, as alleged.(2)

II. Order

The complaint is dismissed.


(If blank, the decision does not have footnotes.)

1. We correct the Judge's inadvertent reference to 1990 as the year in which various events took place. Those events occurred in 1989.

2.   In finding that the General Counsel did not present a prima facie showing that the Respondent's action was in retaliation for the employee's protected activity, we do not otherwise pass on the propriety of the PIP given to the employee. Similarly, in finding that the Respondent did not violate section 7116(a)(1) and (2) of the Statute when it placed the employee on the PIP, we find it unnecessary to consider the General Counsel's and Union's contention that the employee was entitled, but for the PIP, to a cash award that was given to other members of her team.