[ v47 p1338 ]
The decision of the Authority follows:
47 FLRA No. 124
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGIONAL PERSONNEL OFFICE
JEFFREY A. SAUL, AN INDIVIDUAL
DECISION AND ORDER
July 23, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority. The General Counsel filed a motion to strike certain portions of the Respondent's brief and the Respondent filed an opposition to the General Counsel's motion.(1)The American Federation of Government Employees, AFL-CIO (AFGE) filed a brief as an amicus curiae.
The complaint alleges that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by maintaining a policy which prohibits consideration in the merit selection process of skills and abilities acquired by employees as a result of the performance of Federal union representational activities. The complaint further alleges that the Respondent violated section 7116(a)(1) and (2) of the Statute when, in evaluating the Charging Party's application for a position under the Agency's merit promotion plan, the Respondent refused to grant the Charging Party credit for the experience he had gained while serving as a Federal union representative. For the reasons that follow, we find that the Respondent committed the unfair labor practices, as alleged.
AFGE is the exclusive representative of a nationwide consolidated unit of employees of the Social Security Administration (SSA). AFGE Local 3937 (the Union) is an agent of AFGE for purposes of representing employees of the SSA, Seattle, Washington Region. The Charging Party is employed by the Agency as a GS-10 Claims Representative. The Charging Party was the Chief Steward of the Union from April 1984 through May 1991. The Charging Party served as a full-time Union official from May 1985 until August 1990.
The Respondent handles all personnel actions for the SSA, Seattle, Washington Region, including merit promotion selections. The Respondent issued a vacancy announcement under the merit promotion program to fill the position of management analyst, GS-11/12, in the Office of the Regional Commissioner for Region X. The duties of the position predominately involve labor-management relations functions.
After the Charging Party applied for the vacant position, the Respondent notified him that he did not have the 1 year of specialized experience required for the position. The Charging Party asked that the Respondent review his application and requested an explanation as to why his experience as a Federal union representative did not qualify him for the position. The Respondent informed the Charging Party that it did not credit his experience as a Union representative because, in its view, doing so would violate section 7116(a)(2) of the Statute.(2)
The Respondent has a region-wide policy of refusing to consider Federal union activity of employees during any stage of a merit selection process. However, the Respondent considers certain nonwork activities. For example, other applicants for the management analyst position were given credit for experience acquired as: (1) vice president of a youth baseball organization; (2) president of a homeowners association; (3) Combined Federal Campaign regional coordinator; (4) United Way instructor; (5) Veterans Administration hospital group leader; (6) treasurer of a resident's association; (7) member and chairperson of a police and fire department disability board; (8) secretary for a Boy Scout troop and (9) member of an Equal Employment Opportunity (EEO) advisory committee. Applicants were also given credit for experience acquired serving as management representatives in labor-management negotiations with the Union.
III. Positions of the Parties
The Respondent asserts that the Statute "requires strict management neutrality with regard to consideration of employee protected activities in making personnel decisions to avoid encouraging or discouraging such activities." Respondent's Brief at 9 (emphasis omitted). The Respondent argues that, because its merit selection process requires the qualitative assessment of all qualifying experience by rating panels and selecting officials, the acceptance and consideration of Federal union activity experience as qualifying experience would require rating panels and selecting officials to judge the manner in which employees perform union duties and, thereby, risk violating section 7116(a)(2) of the Statute. The Respondent further argues that "to allow an employee to use . . . experience he gained in the course of pursuing his right to engage in protected activity" to enhance his or her promotion potential "implicitly penalizes . . . similarly situated employees who . . . elected to refrain from union activity . . . ." Id. at 10-11. The Respondent maintains that its policy is a good faith attempt to maintain management neutrality concerning an employee's protected activity, as required by Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny).
B. General Counsel
The General Counsel argues, citing Social Security Administration, Inland Empire Area, 46 FLRA 161 (1992) (SSA, Inland Empire), that the Respondent's policy "inherently discriminates against employees who choose to act as union representatives[.]" General Counsel's Brief at 10. According to the General Counsel, the policy is discriminatory because "individuals who engage in volunteer activities on their own time, or even, in the case of EEO activities on duty time, may have such activities credited for purposes of determining basic qualifications and for rating and ranking while an individual who chooses to engage in union activities on official duty time, does not." Id.
The General Counsel argues that the Respondent's reliance on Letterkenny is misplaced. According to the General Counsel, "no qualitative judgment is made in determining whether the applicants possess the knowledge, skills and abilities to meet the [1-year] specialized experience requirement or when assessing outside experiences in rating and ranking the applicants." Id. at 11. To the contrary, the General Counsel asserts that the "applicants are evaluated based solely on how they described these outside activities and the relationship of their various activities to the [Knowledge, Skills and Abilities] of the position." Id.
The General Counsel contends that a prima facie case of discrimination has been established because it is clear that the Respondent discriminated against the Charging Party solely on the basis of his protected activity. The General Counsel further contends that the Respondent has not shown any legitimate justification for its policy. The General Counsel asserts that consideration of Federal union experience in the same manner as other nonwork experiences, does not encourage union activity. Rather, according to the General Counsel, "refusing to credit an employee with experience obtained in the performance of statutorily protected activity discourages employees from such activity." Id. at 14-15.
AFGE maintains that the reasons asserted by the Respondent as justification for refusing to consider the Charging Party's labor relations experience are pretextual. AFGE argues that crediting the Charging Party's experience would not have required the Respondent "to engage in any type of substantive appraisal of the work he performed." Amicus Brief at 11. AFGE further argues that, if the Charging Party had gained his labor relations experience "in the private sector," then the Respondent would have credited the outside experience. Id. at 13.
IV. Analysis and Conclusions
In Letterkenny, we addressed the analytical framework for resolving alleged violations of section 7116(a)(2) of the Statute. We affirmed that, in such cases, the General Counsel bears the burden of proving, by a preponderance of the evidence, 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 condition of employment. See Letterkenny, 35 FLRA at 118. Once the General Counsel makes a prima facie showing, a respondent may seek to establish 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.
Here, it is undisputed that the Charging Party was engaged in protected union activity and that the Respondent was aware of that activity. It is also clear that protected union activity was a motivating factor in the Respondent's treatment of the Charging Party. In this regard, there is no argument or other basis on which to conclude that, in evaluating candidates for the disputed management analyst position, the Respondent refused to credit any relevant experience or category of relevant experience, other than Federal union activity. Stated simply, the Respondent's policy and its application to the Charging Party are based solely on protected union activity. It is clear, therefore, that the General Counsel has established a prima facie case that the Respondent violated the Statute.
The Respondent contends that it did not violate the Statute because its policy is motivated by lawful considerations. In particular, the Respondent maintains that it prohibits consideration of an employee's Federal union experience in determining qualifications for positions under the merit selection process to ensure agency compliance with section 7116(a)(2) of the Statute by preventing rating panels and selecting officials from judging the manner in which employees performed union duties. According to the Respondent, a policy permitting the crediting of the Charging Party's union experience would unfairly penalize employees who choose not to engage in protected activity under section 7102 of the Statute. We reject the Respondent's contentions for the following reasons.
First, the Authority has rejected similar arguments made by respondents in other cases. For example, in Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 956 (1985) (Customs Service), the Authority adopted a judge's conclusion that the respondent violated section 7116(a)(1) and (2) of the Statute by refusing to detail a union president for a special assignment solely because of his protected union activity. The Authority rejected the Respondent's contention that it was necessary to exclude the union president from the special assignment to preserve the Union president's "integrity as a Union negotiator." Id. at 971. The Judge concluded, and the Authority agreed, that if the Respondent's argument "was carried to its logical extension [then] no bargaining unit employee would be able to engage in negotiations on behalf of a labor organization without risking the possibility of being eliminated for details[.]" Id. Similarly, in SSA, Inland Empire, the Authority found that an agency violated section 7116(a)(1) and (2) of the Statute by reducing gainsharing awards paid to two employees because they had engaged in union representational duties during work time. The Authority stated its agreement with the judge's conclusion that the "foreseeable effect" of the agency's action was to discourage employees from engaging in union representational duties. SSA, Inland Empire, 46 FLRA at 176.
In this case, as noted previously, the Respondent considers other pertinent nonwork activities of unit employees in determining qualifications for certain positions under the merit selection process. As such, with respect to consideration for these positions, we conclude that the policy clearly discriminates against and penalizes employees who engage in protected union activity. The Respondent asserts that crediting the Charging Party's union experience would penalize unit employees who exercise their right, under section 7102, to refrain from assisting the Union. It is not clear, in this regard, that a policy crediting all relevant nonwork activities, whether or not related to union representation, penalizes employees who choose not to assist the Union. Instead, a policy which makes no distinctions based on union activity appears to promote management neutrality with regard to its treatment of employees who do, and do not, choose such actions. On the other hand, in view of the Respondent's crediting of other relevant nonwork activities of employees, we conclude that the interference with the Charging Party's right to engage in protected activity which results from the Respondent's policy is direct and substantial.
Second, the Respondent has not demonstrated, and the record does not otherwise show, that a rating panel must make qualitative evaluations of employees' outside activities in determining whether employees meet the specialized experience qualification and possess the knowledge, skills, and abilities required for a position. In this connection, the stipulated record reveals that applicants are responsible for providing documentation to show that they meet applicable requirements and, thus, are eligible for consideration for a position. For example, to be rated eligible for consideration for the disputed management analyst position, applicants were required "to document experience and/or training which has provided the applicant with the knowledge, skills, and abilities to give advice and service to management in such areas as planning, policy development, work methods and procedures, information management, or similar areas, with the objective of improving managerial effectiveness." Stip. Exh. 2 at 1. An applicant could substitute appropriate education for the required experience.
The record discloses that a rating panel first determines whether an applicant meets qualification requirements for a position by "review[ing] the application for qualifying experience." Respondent's Brief at 8. Next, a rating panel determines whether an applicant possesses required knowledge, skills, and abilities based on the applicant's performance appraisal and narrative of his or her work experience, outside activities, education, training, and awards. Stip. Exh. 13 a-e. We find nothing in the stipulated record which indicates that a rating panel evaluates the relative quality of an applicant's work experience or outside activity or the relative quality of the applicant's performance of such activities. Rather, the record indicates that a rating panel takes an applicant's explanation of work experience and outside activities at face value.
In this regard, we note that the vacancy announcement for the disputed position stated, in pertinent part:
[Y]ou will be evaluated for your possession of the knowledges, skills, and abilities listed and defined below. While you do not need to possess all of them . . . a thoughtful completion of this section will enhance your chances of referral.
Stip. Exh. 2 at 2.(3) The announcement referred applicants to an attached page "for a complete explanation of the type of information required." Id. The attached page instructed the applicant to:
Please tell us what in your background may indicate the degree to which you possess each knowledge, skill, or ability (KSA) listed in the vacancy announcement. Using a separate page for each KSA, you may expand the explanation of your education or work experience that you provided in your original application form or you may present new information. Any evidence (education, experience, volunteer work, training, hobbies, etc.) that you possess the KSA will be considered.
Id. at 4 (emphasis in original).
In our view, the stipulated record does not establish that a rating panel evaluates how well an applicant has performed his or her job functions or nonwork activities, such as union representational duties, as contended by the Respondent. Therefore, we reject the Respondent's affirmative defense that its policy is necessary to ensure that rating panels do not improperly evaluate the manner in which employees perform union representational duties.
Based on the foregoing, we conclude that, in the circumstances of this case, the Respondent violated section 7116(a)(1) and (2) of the Statute by refusing to credit the Charging Party's Federal union experience in the same manner as other applicant's outside activity experience in determining his qualifications for a position.(4)
Pursuant to section 2423.29 of the Authority Rules and Regulations and section 7118 of the Federal Service Labor- Management Relations Statute, it is hereby ordered that the Department of Health and Human Services, Regional Personnel Office, Seattle, Washington, shall:
1. Cease and desist from:
(a) Discriminating against Jeffrey A. Saul by failing and refusing to consider the skills and experience gained while serving as a representative of the American Federation of Government of Employees, Local 3937, AFL-CIO, (Union), the exclusive representative of its employees, when determining his qualifications for the management analyst, GS-343-11/12, position announced on April 29, 1991.
(b) Maintaining a policy which prohibits consideration, during the merit promotion process, of skills, abilities and experience acquired by employees while performing Federal union representational activities.
(c) In any like or related manner, interfering with, restraining, or coercing 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) Rescind the policy which precludes consideration during the merit promotion process of skills, abilities, and experience acquired by employees through Federal union representational activities.
(b) Rerun the selection process under the merit promotion plan for the management analyst, GS-343-11/12 position announced on April 29, 1991, under Vacancy Announcement No. X91-105, giving full consideration to the skills and experience Jeffrey A. Saul gained while serving as a Union official. If Jeffrey A. Saul is selected for the position, in accordance with the Back Pay Act, 5 U.S.C. 5596, make him whole for any loss of pay or benefits he suffered as a result of the policy which prohibited consideration during the merit promotion process, of skills, abilities, and experience acquired by employees through Federal union representational activities.
(c) Post at all of its facilities where bargaining unit employees 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 Commissioner, 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 these Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco 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.
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 discriminate against Jeffrey A. Saul by failing and refusing to consider skills and experience gained while serving as a representative of the American Federation of Government Employees, Local 3937, AFL-CIO, (Union), the exclusive representative of our employees, when determining an employee's qualification for the management analyst, GS-343-11/12 position announced on April 29, 1991.
WE WILL NOT maintain a policy which prohibits consideration, during the merit promotion process, of skills, abilities and experience acquired by employees while performing Federal union representational activities.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the policy which precludes consideration during the merit promotion process of skills, abilities, and experience acquired by employees through Federal union representational activities.
WE WILL rerun the selection process under the merit promotion plan for the management analyst, GS-343-11/12 position announced on April 29, 1991, under Vacancy Announcement
No. X91-105, giving full consideration to the skills and experience Jeffrey A. Saul gained while serving as a Union official. If Jeffrey A. Saul is selected for the position, in accordance with the Back Pay Act, 5 U.S.C. 5596, we will make him whole for any loss of pay or benefits he suffered as a result of the policy which prohibited consideration during the merit promotion process, of skills, abilities, and experience of Union officials acquired through Federal union representational activities.
Date:______________ By: ______________________________
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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 744-4000.
(If blank, the decision does not have footnotes.)
1. The General Counsel has moved to strike references in the Respondent's brief which, according to the General Counsel, address matters that are not set forth in the stipulation. As we have not relied on any of these references in reaching our decision, we find it unnecessary to rule on the motion. See National Guard Bureau, Alexandria, Virginia, 45 FLRA 506, 516 (1992), petition for review filed as to other matters sub nom. Association of Civilian Technicians v. FLRA, No. 92-1379 (D.C. Cir. Aug. 20, 1992).
2. Section 7116(a)(2) of the Statute provides that it is an unfair labor practice for an agency "to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment[.]"
3. The knowledge, skills and abilities
listed in the vacancy announcement were: (1) ability to analyze; (2) ability to
comprehend written material; (3) ability to work under pressure; (4) ability to
gain the cooperation of others;
(5) ability to plan, organize, and prioritize work; (6) ability to communicate orally; and (7) ability to communicate in writing. Stip. Exh. 2 at 2.
4. We note that, in a different context, it has been long established that an agency may not consider protected activity in a performance evaluation process in a manner which interferes with an employee's protected rights. For example, National Labor Relations Board, Region 17, and National Labor Relations Board, 6 A/SLMR 333, 334 (1976) (Assistant Secretary of Labor concluded that "to permit the [r]espondents to evaluate the [c]omplainant's capacities on the basis of litigation brought by the [c]omplainant against them would result in improper interference in the exercise of the [c]omplainant's protected right to freely file and process an unfair labor practice complaint under . . . Executive Order [11491, as amended]. To hold otherwise would permit agencies to utilize an employee evaluation system to inhibit the filing and processing of unfair labor practice complaints . . . .") (emphasis in original). However, "no per se rule applies" in such cases. Equal Employment Opportunity Commission, Jackson Area Office, Jackson, Mississippi, 34 FLRA 928, 934 (1990). Instead, the Authority determines whether, under the circumstances of each case, allegedly unlawful statements in a performance appraisal "could reasonably tend to interfere with, restrain, or coerce employees in exercising their rights under the Statute." Id. at 932.