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The decision of the Authority follows:
43 FLRA No. 115
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS AND
FORT BRAGG, FORT BRAGG, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
February 6, 1992
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 the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to select an employee for a position because the employee engaged in activities protected by section 7102 of the Statute. The Judge found that the Respondent violated the Statute and ordered that the selection action be rerun.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. On consideration of the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with this decision.
Thomas Dixon, a WG-5 Warehouse Worker, has been supervised by Walter Coakley since April 1989. In the absence of a Union steward in his work area, Dixon filed, between April 1989 and January 1990, grievances against Coakley on behalf of himself and others. In January 1990, Dixon became a Union steward.
In October 1989, a WG-6 Warehouse Worker position in Dixon's unit became vacant and Dixon was assigned the duties of that position. In November 1989, the Respondent posted a vacancy announcement for the position and Dixon applied for it. On December 5, 1989, Coakley prepared a "highly commendatory" supervisory appraisal for Dixon. Judge's Decision at 3.
On December 18, 1989, Dixon was late for work. When Coakley questioned Dixon about his lateness, Dixon insisted that they discuss the matter with Coakley's supervisor. After the discussion, Coakley asked Dixon how he could expect to be selected for the WG-6 position when he was "'fighting against'" Coakley. Id. at 4. Dixon stated that if he wasn't considered for the position he would "'have the Union to look into it,'" and Coakley responded that if Dixon "'mention[ed] the Union's name, [he wouldn't] get the job anyway.'" Id. After a register of best qualified candidates for the WG-6 job was submitted to Coakley, the selecting official, Coakley interviewed all the candidates. Coakley began Dixon's interview by stating, "'Relax, this is not a Union meeting[.]'" Id. at 7. On January 26, 1990, Coakley selected Carroll Crain, a WG-3 Sales Store Checker, for the WG-6 position.
III. Administrative Law Judge's Decision
The Judge concluded that Dixon engaged in protected activity and that Coakley was aware of that activity. The Judge also concluded that Coakley's statements to Dixon regarding the Union constituted evidence of Coakley's "animus toward Mr. Dixon's protected activity . . . ." Id. at 9. The Judge stated that the "animus . . . tainted the selection process" and that the Respondent had not shown "that the same action would have been taken in the absence of protected activity." Id. at 10. According to the Judge, "[o]nce protected activity is shown to have been a motivating factor in the non-selection of one best qualified applicant, Respondent can not legitimatize [sic] the selection process by showing that the selectee was . . . deemed by the selector to have been most qualified." Id.
Based on his findings, the Judge concluded that the Respondent violated section 7116(a)(1) and (2) of the Statute. However, the Judge rejected the General Counsel's argument that the Respondent's selection of Crain was pretextual because, in the Judge's view, any of the best qualified candidates could have been selected for the position. The Judge also rejected the General Counsel's request that Dixon be promoted retroactively, with backpay. Instead, the Judge ordered that: (1) the selection action be rerun; (2) a selecting official other than Coakley be designated; and (3) Crain be given no credit for experience he has gained in the WG-6 position.
IV. General Counsel's Exceptions
The General Counsel contends that the Judge's decision is inconsistent with Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). According to the General Counsel, the Judge should have concluded that the Respondent's asserted reasons for selecting Crain were pretextual and should have directed the Respondent to promote Dixon retroactively, with backpay.
V. Analysis and Conclusions
In cases alleging violations of section 7116(a)(2), the General Counsel bears the burden of proving that a respondent's allegedly discriminatory action was motivated by consideration of protected activity. See Letterkenny, 35 FLRA at 122. If the General Counsel makes this prima facie showing, a respondent may seek to rebut that showing by establishing the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken in the absence of protected activity. The General Counsel also may seek to establish that such reasons are pretextual. In this regard, "pretext" cases differ from other cases in one respect:
In a "pretext" case, . . . a motive asserted by a respondent to be lawful is found to be unlawful (pretextual). Accordingly, unless the respondent establishes that there was an additional lawful (nonpretextual) motive for its allegedly discriminatory action, it is not necessary to determine whether the respondent would have taken the disputed action even without the unlawful motive.
Id. at 120.
The complaint in this case alleges that the Respondent violated section 7116(a)(1) and (2) of the Statute when it failed to select Dixon for the WG-6 position because Dixon had engaged in protected Union activity. Judge's Decision at 2; General Counsel Exhibit 1(e). The Judge concluded that the Respondent violated the Statute:
The animus of Mr. Coakley to Dixon's protected activity tainted the selection process. Respondent . . . has not shown . . . that the same action would have been taken in the absence of protected activity. Once protected activity is shown to have been a motivating factor in the non-selection of one best qualified applicant, Respondent can not legitimatize [sic] the selection process by showing that the selectee was . . . deemed . . . most qualified.
Judge's Decision at 10. No exceptions were filed to these findings or to the Judge's conclusion that the Respondent violated the Statute.
The Judge stated that the Respondent had not established "that the same action would have been taken in the absence of protected activity." Id. However, the "action" to which the Judge refers is unclear. On one hand, the Judge may have intended to find that the Respondent did not show that, absent consideration of Dixon's protected activity, it would not have selected Dixon for the disputed position. On the other hand, the Judge may have intended to find only that the Respondent failed to show that, absent consideration of Dixon's protected activity, it would have selected Crain for the position.
In either event, however, it is clear that the Respondent's unlawful consideration of Dixon's protected activity was a motivating factor in its failure to select Dixon for the WG-6 position. It is also clear that the Respondent did not establish that it would not have promoted Dixon even if it had not considered his protected activity.(1) Compare United States Postal Service, 275 NLRB 244 (1985) (National Labor Relations Board dismissed portion of complaint challenging failure to promote employee because employer established that, even in absence of consideration of protected activity, it would not have promoted the employee). Accordingly, noting the absence of an assertion to the contrary, we conclude that, as alleged in the complaint, the Respondent violated section 7116(a)(1) and (2) of the Statute by failing to select Dixon for the WG-6 position.
Sections 7105(g) and 7118 of the Statute vest the Authority with broad remedial authority. See generally, National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). In the circumstances of this case, we conclude that the Respondent should be required to retroactively promote Dixon and make him whole. See Letterkenny, 35 FLRA at 126-28. The Respondent's failure to select Dixon was motivated by consideration of Dixon's protected activity and the Respondent did not show that it would have taken the same action in the absence of such consideration. Moreover, there is no argument before us that Dixon would not have been selected for the position but for the Respondent's unlawful actions. As such, the fact that there were other best qualified candidates for the WG-6 position is irrelevant. We will modify the Judge's remedy accordingly.(2)
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, shall:
1. Cease and desist from:
(a) Failing to select Thomas L. Dixon for the position of Warehouse Worker (Forklift Operator), WG-6, because Dixon engaged in activities protected under section 7102 of the Statute.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Retroactively promote Thomas L. Dixon to the position of Warehouse Worker (Forklift Operator), WG-6, and make him whole, with interest, for losses he incurred as a result of the Respondent's unlawful action.
(b) Post at its facilities at Fort Bragg, North Carolina, where bargaining unit employees represented by the American Federation of Government Employees, Local 1770, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer of the XVIII Airborne Corps, and they shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Atlanta Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to select Thomas L. Dixon for a position because he engaged in activities protected by the Statute.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL retroactively promote Thomas L. Dixon to the position of Warehouse Worker (Forklift Operator), WG-6, and make him whole, with interest, for losses he incurred as a result of our unlawful action.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Atlanta Regional Office, Federal Labor Relations Authority, whose address is: 1371 Peachtree Street, N.E. Suite 122 Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
(If blank, the decision does not have footnotes.)
1. As such, it is unnecessary to determine whether the selection of Crain properly should be termed pretextual. See Letterkenny, 35 FLRA at 120.
2. We do not address what action, if any, might be necessary with respect to the original selectee. See Letterkenny, 35 FLRA at 128 n.*.