45:1310(131)CA - - Agriculture, Forest Service, Chattahoochee-Oconee National Forests, Gainsville, GA and NFFE Local 1329 - - 1992 FLRAdec CA - - v45 p1310
[ v45 p1310 ]
The decision of the Authority follows:
45 FLRA No. 131
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 filed by the Respondent. The Respondent filed an exception only to the Judge's recommended Order. The General Counsel filed an opposition and cross-exception to the Respondent's exception.
The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when the Respondent failed and refused to promote a Union steward to a GS-09 position because he engaged in protected activity. The complaint also alleged that the Respondent violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing employees in the exercise of their rights under section 7102 of the Statute.
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. Upon consideration of the Judge's decision, the exceptions, the opposition, the cross-exception, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order as modified below.
We reject the Respondent's argument that the Judge's recommended Order that the employee be retroactively promoted to a GS-09 position is inappropriate because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Order issued by the Judge in this case is similar to orders in other cases where it has been determined that employees have not been selected for promotion because of unlawful consideration of their protected activity and where the respondent has not shown that it would have taken the same action in the absence of such consideration. See Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 43 FLRA 1414 (1992) (Fort Bragg); Letterkenny Army Depot, 35 FLRA 113 (1990); United States Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 168-69 (1985).
The General Counsel contends that the Judge's Order should be modified to provide explicitly that interest be paid pursuant to the Back Pay Act, 5 U.S.C. ° 5596. We agree with the General Counsel that the Judge's Order to make the employee whole implicitly includes the payment of interest in accordance with the Back Pay Act. However, in the interest of clarity, we will modify the Order to specify that the remedy includes backpay with interest. See Fort Bragg, 43 FLRA at 1419.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Agriculture, Forest Service, Chattahoochee-Oconee National Forests, Gainesville, Georgia, shall:
1. Cease and desist from:
(a) Refusing or failing to promote Phillip Greene to a GS-09 position because of his protected activities.
(b) Making statements to employees which interfere with, coerce, or discourage any employee from filing grievances or exercising rights assured by the Federal Service Labor-Management Relations Statute.
(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Retroactively promote Phillip Greene to a GS-09 position as of January 24, 1991, and make him whole by paying him backpay, with interest for the loss of pay suffered by him from that date by reason of the refusal and failure to promote him due to his protected activities.
(b) Post at its facilities in Gainesville, Georgia, 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 Regional Forester, and 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 Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
WE WILL NOT refuse or fail to promote Phillip Greene to a GS-09 position because of his protected activities.
WE WILL NOT make statements to our employees which interfere with, coerce, or discourage any employee from filing grievances or exercising rights assured by the Federal Service Labor-Management Relations 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 Phillip Greene to a GS-09 position as of January 24, 1991, and make him whole by paying him backpay, with interest for the loss of pay suffered by him from that date by reason of the refusal and failure to promote him due to his protected activities.
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 any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Atlanta Regional Office, whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2324.
(If blank, the decision does not have footnotes.)
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
.U.S. DEPARTMENT OF AGRICULTURE, .
FOREST SERVICE, CHATTAHOOCHEE- .
OCONEE NATIONAL FORESTS, .
GAINESVILLE, GEORGIA .
and Case No. 4-CA-10602
NATIONAL FEDERATION OF .
FEDERAL EMPLOYEES, LOCAL 1329 .
.Charging Party .
Heyward B. Washington and
Rufus Caruthers, Jr.
For the Respondent
Richard S. Jones, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on August 29, 1991 by the Regional Director for the Atlanta Regional Office, Federal Labor Relations Authority, a hearing was held before the undersigned on November 20, 1991 at Atlanta, Georgia.
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 second amended charge filed on August 29, 1991 by the National Federation of Federal Employees, Local 1329 (herein called the Union), against U.S. Department of Agriculture, Forest Service, Chattahoochee-Oconee National Forests, Gainesville, Georgia (herein called the Respondent).
The Complaint alleged, in substance, that since January 1991 Respondent has failed and refused to promote employee Phillip Greene, Union steward, to a GS-09 position because he engaged in protected activity - all in violation of section 7116(a)(1) and (2) of the Statute.
Respondent's Answer, filed on September 23, 1991, denied the commission of any unfair labor practices. It also denied that (a) since February 12, 1991 employee Greene has been a bargaining unit employee, (b) Greene was a steward for the Union who filed grievances and engaged in protected activity during the relevant time herein.
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. There-after, 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 the National Federation of Federal Employees (NFFE) has been, and still is, the exclusive representative of a nationwide consolidated unit of employees, including employees of Respondent.
2. At all times material herein, the Union has been, and still is, the designated agent of NFFE to represent the unit employees of Respondent at the Chattahoochee-Oconee National Forests.
3. Phillip Greene has been employed by Respondent for six years. Prior to November 1991 he was a GS-07 Forestry Technician, and he performed law enforcement and recreation duties. District Ranger John W. Moore supervised Greene full time then, and Robert Fitzmayer provided technical supervision and recreation at that time.
4. The record reflects that on September 24, 1989 Moore wrote a memo regarding Greene. He stated therein that Greene's work on law enforcement averages yearly more than 50 percent, although some weeks it might be as high as 80 to 90 percent; that while Greene performs collateral duties like most employees, Moore relied on him as the primary law enforcement officer in the district for the past four years. Finally, the memo recited that Greene is a very conscientiousand dedicated officer, and is very necessary to the effective operation of the district.
5. At or about the aforesaid date Greene had a conversation with Moore since he had heard that one could not be promoted to the position of Special Agent after he reached 35 years of age. Moore advised Greene this was not true, but that he could go to a GS-09 if he has had collateral duties. The latter term referred to a combination of recreation and law enforcement duties.
6. As a result of several employees advising Greene of complaints re Moore's handling things, Greene spoke to Moore on August 1, 1990 about these concerns. He followed it up with a letter on August 2, 1990 outlining the complaints which had to do with such matters as assignments, pay raises, job announcement notifications and lack of training. Greene mentioned his own concerns and that his desire was to perform law enforcement duties full time.1/
7. On August 30, 1990 Greene filed seven grievances concerning Moore's conduct and various working conditions, most of which involved just Greene. Moore responded by letter (undated), but none of the complaints were resolved in Greene's favor.
8. Supervisor Kenneth D. Henderson replied to the grievance in a letter dated November 7, 1990 (G.C. Exh. 6), and Regional Forester John Alcock addressed two of the grievances by letter dated January 11, 1991 (G.C. Exh. 7). In respect to almost all matters, Moore was instructed to take actions which corrected the complaints made by Greene.
9. On January 13, 1991 two other technicians, William Guthrie and Tony Wild were promoted from GS-07 to GS-09. Moore, who was their supervisor, told Greene that the promotion for Guthrie came in the process; that Wild's promotion had to be resubmitted four or five times but Moore was finally able to obtain it.
10. Several days later Fitzmayer, who was Greene's immediate supervisor, submitted to Moore a new proposed job description for a full time law enforcement position at a GS-09 level. At that time Fitzmayer was supervising Greene two days a week. He testified that Greene was then performing about 70-80 per cent law enforcement duties; that he intended the submission of the job description would result in the selection of Greene for the full time law enforcement position. Moore returned it to Fitzmayer for revision since he disagreed with the need for a full time law enforcement official.
11. Under date of January 23, 1991 Moore sent Fitzmayer a note telling him to encourage Greene to retain his correct collateral duty job (law enforcement and recreation duties) and not seek a full time law enforcement position. Moore states it was not feasible at that time and it would "only further contribute to his morale problems." Further, that Fitzmayer needed Greene badly in recreation and Moore expected Fitzmayer's assistance and support in this idea.
12. On January 24, 1991 Greene met with both Fitzmayer and Moore and asked why he had not been put in for a GS-09. Fitzmayer said he had done so and had given the paperwork to Moore. Whereupon Greene asked Moore what was the problem and what would be needed to get the promotion. The latter replied "Because I had to waste -- I may have had time to put in for a promotion for you. But I had to waste too much time on your grievances." Greene then asked Moore if there were plans to put him in for a promotion. After Moore replied, "maybe", Greene asked if the supervisor would let him know in a week or two. Moore said he would not as he did not want to be pressured, but might let him know something in a month.2/
13. In a memo dated June 18, 1991 Moore wrote Fitzmayer regarding a promotion for Greene. He instructed Fitzmayer to update the employee's job description to reflect his current duties so it can be accurately classified as to the appropriate grade level. Moore stated that Fitzmayer could get a GS-08 job description from another District for an individual who has a similar job to Greene.
14. Record facts show that in November 1991 Greene learned he was promoted to a GS-08. Greene testified he had not received a paycheck nor been advised as to the amount of pay he will receive. He had not been promoted to a GS-09 at the date of the hearing herein.3/
Two issues are presented for determination: (1) whether the refusal and failure by Ranger Moore to promote Greene from a GS-07 to a GS-09 was because Greene filed grievances, and hence was discriminatory in violation of section 7116(a)(1) and (2) of the Statute; (2) whether statements made by Moore to Greene on January 23, 1991 requesting the reason why Moore did not promote Greene amounted to interference, restraint and coercion in violation of section 7116(a)(1) of the Statute.
(1) In respect to cases involving alleged discrimination, the Authority set forth in Letterkenny Army Depot, 35 FLRA 113 (1990), the requirements which must be established by the General Counsel. It must be shown that (a) the employee was engaged in protected activity; and (b) 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. Once such a prima facie case has been established, an agency will not be found to have violated section 7116(a)(2) if it can demonstrate, by a preponderance of the evidence, that there was legitimate justification for its action, and the same action would have been taken even in the absence of protected activity.
Numerous decisions by the Authority have held that the filing and pursuit of grievances by employees against management, or an agency, are deemed protected activity under the Statute. It is not disputed, and the record reflects, that Greene submitted complaints to Moore on behalf of several employees in early August 1990. Further, on August 30, 1990 he filed seven grievances with Moore protesting certain conditions which, for the most part, concerned his employment and tasks. By virtue of his aforesaid conduct, Greene was clearly engaged in protected activity.
With respect to the motivation behind the refusal and failure to promote Greene from a GS-07 to a GS-09, Respondent does take issue with the contention that it was due to his protected activity. It is argued that Moore did not promote the employee because there was no need for a full time law enforcement officer. Respondent insists that Moore, in adhering to this position, was exercising his management right to assign work.
The difficulty with this contention is that the evidence discloses a motivation by Moore directly related to Greene's protected activity. This is revealed by the response given when Greene asked Moore on January 24, 1991 why he had not been put in for a GS-09 despite the fact that Greene's supervisor, Fitzmayer, had recommended such action. Moore responded by saying he may have had time to put Greene in for a promotion, but he had to waste too much time on Greene's grievances.
While Moore insists there was no need for a full time law enforcement employee, he also testified that it was not necessary to fill that position in order to obtain a raise in grade from a GS-07 to a GS-09. Moreover, Fitzmayer testified that about 70 to 80 percent of Greene's duties at that time involved law enforcement. It is thus apparent that while Moore may have felt there was no need for a full time law enforcement person, such factor did not bar his promoting Greene to a higher grade. This is borne out by his own testimony as to why he didn't give Greene a raise:
". . . it really had been a real struggle for all, for them and myself, in responding to all complaints, grievances."
Further note is taken that, apart from whether a full time enforcement officer was needed, Moore did promote Greene to a GS-08 months later in November 1991 after the complaint was issued herein.
The foregoing is persuasive that General Counsel has established a prima facie case of discrimination because of Greene's protected activity. This conclusion is warranted in view of Moore's statements attesting to the fact that he had to waste too much time on Greene's grievances to promote the employee to a GS-09, that it would further contribute to Greene's morale problem,4/ and that it would have been a struggle to give Greene a raise in "regarding to all of complaints, grievances." Accordingly, I conclude that Respondent violated section 7116(a)(1) and (2) by failing and refusing to promote Greene from a GS-07 to a GS-09 because of his protected activity.
(2) The standard for determining whether a statement by management is violative of the Statute is an objective one. The test is whether, under the circumstances, a statement tends to coerce or intimidate employees in the exercise of their rights under section 7102 of the Statute, or whether the employee could have reasonably drawn a coercive inference therefrom. Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 956, 962 (1990). In order to find a violation of section 7116(a)(1), it is not necessary to find other unfair labor practices or to demonstrate union animus. U.S. Department of Defense, Department of the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin Air Force Base, Texas, 18 FLRA 142, 163 (1985).
In Bureau of the Census, 41 FLRA 436, 449 (1991), the Authority held that management's reference to an employee's filing grievances, which preceded discipline of the individual, was violative of section 7116(a)(1). It was concluded that an employee could reasonably have drawn a coercive inference from the reference which itself would tend to intimidate employees in exercising their statutory right to file grievances.
Applying this rationale to the instant case, I conclude that Moore's statements re Greene's filing grievances, would also tend to be coercive. Stating that an employee has not been promoted or received a raise because the supervisor had to spend too much time on the employee's grievances may well result in intimidation. It would obviously coerce an employee into refraining from exercising his statutory right to engage in protected