50:0175(33)CA - - Air Force, Seymour Johnson AFB, Goldsboro, NC and NAGE, Local R5-188 - - 1995 FLRAdec CA - - v50 p175
[ v50 p175 ]
The decision of the Authority follows:
50 FLRA No. 33
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
SEYMOUR JOHNSON AIR FORCE BASE
GOLDSBORO, NORTH CAROLINA
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
February 24, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
The Administrative Law Judge issued the attached decision, finding that the Respondent did not violate section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it discharged an employee who had engaged in organizational activities on behalf of the Union. The Union filed exceptions to the Judge's decision and the Respondent filed an opposition to the Union's exceptions.
Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
The complaint is dismissed.(*)
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
SEYMOUR JOHNSON AIR FORCE BASE,
GOLDSBORO, NORTH CAROLINA
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R5-188
Case No. AT-CA-30524
Steven E. Sherwood, Esq.
For the Respondent
Godfrey E. Goff, Jr., Esq.
For the General Counsel
M. Jefferson Euchler, Esq.
For the Charging Party
Before: SALVATORE J. ARRIGO
Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).
Upon an unfair labor practice charge having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Atlanta Region, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by separating an employee from employment because the employee engaged in organizational activities on behalf of the Charging Party.
A hearing on the Complaint was conducted in Goldsboro, North Carolina, at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally.(1) Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this case, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
Larnell Reece began working as a part-time NA5 Cook for Respondent at the NCO Club on the Base in November 1989. Reece was guaranteed at least 20 hours a week employment as a cook at the NCO Club restaurant, which operates on a non-appropriated fund instrumentality (NAF).(2) As an NAF, the Club receives funds appropriated by Congress for the facility and its repair and maintenance. However, operating expenses, such as the cost of food and wages of employees, must be paid from revenues produced by the Club's restaurant, bar and its hosting activities such as parties and bingo games. The Club is part of Respondent's Morale, Recreation and Welfare Service Squadron (the Squadron) which includes an officer's club, a golf course, a bowling alley and snack bar.
Sometime in November 1992, Reece began soliciting for membership or interest in the Union among his fellow employees. He engaged in this activity on behalf of the Union, which had begun an organizational campaign, at various times and places including in the parking lot and hallways at the NCO Club before and after work and on break times. Reece testified that although "quite a few" employees refused, 30 to 40 employees signed cards indicating their interest in Union representation.(3) Reece avoided the dining room at the Club and was careful so he would not be observed by management employees when he was soliciting on behalf of the Union.(4)
On January 4, 1993 Reece attended a Union meeting at the Community Center located on Seymour Johnson Air Force Base. The meeting was attended by 30 to 40 employees. Reece was involved in notifying employees about the meeting but that the meeting room was secured by the local Union President. Reece testified that when the meeting concluded he observed that an "Assistant Manager" of the Community Center was in her office with the door open and was in a position to see whoever went by her office to the meeting, "upstairs."
On January 5, 1993 Reece received a Notice of Separation from the Squadron which stated, inter alia:
"1. This letter is to officially notify you that your position as Cook, NA-7404-05, Regular, will be abolished effective 20 January 1993 and you will be separated from NAF employment on 20 January 93.
"2. This action is necessary due to low sales volume and a continuous financial loss during the past year.
"3. After a thorough review of all placement possibilities, we are unable to present you an offer of a position at this time."
The notice went on to inform Reece of various benefits due him and his procedural rights to respond and grieve the separation. On January 20 Reece was separated from employment.
The record reveals that while the NCO Club has a goal of realizing a four percent profit in its operation, the goal of the restaurant is to break even. Thus Respondent does not seek to make a profit from its food service activity to support the Club since revenues are expected to be produced from the other services offered and the restaurant is considered a necessary service to maintain Club interest and attendance. In any event, in 1991 and 1992 the Club generally experienced a deficit of between $3,000 and $4,000 each month from the operation of the restaurant.
Club management was concerned with the extent of the continuing restaurant loss. The record reveals that when Joan Morton was employed as restaurant manager in August 1991, she was informed by the NCO Club manager that restaurant costs were too high and that she should reduce the costs of goods and labor, suggesting that the kitchen could operate effectively with one less cook. The NCO Club restaurant operated with an NA8 and NA5 cook on both the day shift and evening shift. Morton thereafter attempted a variety of changes to reduce costs but no reduction in personnel was made and the cost of labor remained excessive. In the summer of 1992 cook foreman Brian Kravitz, who began as a replacement the prior April, also suggested that because of weak sales, the restaurant should consider operating with one less cook.
In late September 1992 it came to the attention of Respondent's Human Resources Officer, Anna Edmunson, that according to the job description for an NA5 cook relating to control over the cook's work, "(a) higher grade cook or supervisor checks to see that work is being done properly and is available to answer questions." From this, Edmunson concluded that an NA5 cook could not work alone and an NA8 cook or supervisor would also have to be working on the same shift. Edmunson informed NCO Club manager Hawks of her conclusion.
In October management concluded that in view of the continued poor financial situation in the restaurant, an NA5 Cook position on the evening shift was not needed. Reece had presented a scheduling problem since although guaranteed 20 hours work a week as a part-time cook, he was not available some week-day evenings due to his military commitments and he was not always needed for 8 hours work on Saturday.(5) Nevertheless, the restaurant was required to pay Reece for 20 hours a week. Around this time, credited testimony reveals, Club manager Hawks asked Reece if he would accept taking on status as a "flexible" employee, whereby Reece would not receive a guarantee of 20 hours work a week. Since a loss of various benefits would be involved, Reece refused.(6)
Around November 21, 1992 Club manager Hawks sought information from Human Resources Officer Edmunson regarding how to abolish a cook's position and was informed that he would have to institute a request to abolish the position, which was termed a "business based action". On November 30 Hawks submitted the request and met with Major Linda Jones, Service Squadron Commander, and explained to her that he sought to abolish a position involving an NA5 cook because of low restaurant sales and the cook, if retained, could not work alone but would require supervision. Jones authorized the action and the request was sent to Edmunson to be executed.
Edmunson received the request on December 7, 1992 and on December 16, 1992 an evaluation of both NA5 cooks was made by cook foreman Kravitz. Reece's rating was lower than that of the other NA5 cook and accordingly, it was decided that Reece's job would be abolished and Reece was issued his letter of termination on January 5, 1993, supra.(7)
Additional Findings, Discussion and Conclusions
Counsel for the General Counsel essentially contends that a discriminatory termination has been established in that Reece was clearly engaged in protected activity; management's knowledge of that activity can be inferred by application of the "small plant doctrine" when considering Reece's "open organizational activities"; and animus can be inferred" from the presumption which follows the severity and timing" of the action taken against Reece.
Respondent contends counsel for the General Counsel did not establish a prima facie case of discrimination because of a failure to establish that Respondent had knowledge of Reece's protected activity or that such activity was a motivating factor in his termination of employment. Counsel for Respondent further urges that the record establishes that Respondent had a legitimate business reason to abolish Reece's position and the action would have been taken in any event.
In Letterkenny Army Depot, 35 FLRA 113, 118-123, (1990) the Authority ruled that in a case involving alleged discrimination under section 7116(a)(2) of the Statute, the General Counsel must establish 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 conditions of employment. Even if the General Counsel makes the required prima facie showing, an agency will not be found to have violated section 7116(a)(2) of the Statute if the agency can demonstrate, by a preponderance of the evidence, that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken in the absence of protected activity. However, the General Counsel may seek to establish that the reasons the agency asserts to justify its action were pretextual. Id.
In the case herein Reece was the chief advocate for the Union in the restaurant and was therefore clearly engaged in activity protected by the Statute. However, in my view, it has not been established that Reece's activity on behalf of the Union was a motivating factor in Respondent abolishing Reece's job. To establish motivation against an employee it is obvious that an agency must first know or suspect the employee is engaged in protected activity. The evidence in the record before me does not indicate that Respondent knew that Reece was engaged in solicitation on behalf of the Union. Notwithstanding the testimony of one employee that Reece talked to him on behalf of the Union in the kitchen with other employees in the area, Reece himself testified that he was careful in soliciting so as not to be observed by management. The only other specific evidence suggested by the General Counsel to support a finding of knowledge by Respondent of Reece's protected activities is that on January 5, 1993 when employees were attending a Union meeting an "Assistant Manager" of the Base Community Center was in her office with the door open and in a position to see people passing who would have been attending the Union meeting. Reece did not testify that he was seen by the "Assistant Manager" nor is there evidence to establish that the Assistant Manager or Respondent's management was aware that a Union meeting was being held in the Community Center room. Further, the record does not establish that the "Assistant Manager" was a supervisory or managerial employee.(8)
Counsel for the General Counsel also urges that knowledge of Reece's activities on behalf of the Union be inferred to the Agency by application of the "small plant doctrine", citing NLRB v. Buddies Supermarkets, 481 F.2d 714, 83 LRRM 2625 (CA5) (1973). That doctrine holds that knowledge of an employee's protected activity can be inferred from the small size of the facility and attendant circumstances. However, in cases applying the small plant doctrine, knowledge of union activity is inferred based on the record as a whole, which usually reveals independent acts of interference, restraint or coercion by the employer and not merely on the fact that the employee complement is small. See e.g. Mid States Sportswear, Inc., 168 NLRB 559 (1967) and Wiese Plow Welding Co., Inc. 123 NLRB 16 (1959). Those attendant circumstances are not present in this record and accordingly, I will not apply the small plant doctrine to infer that Respondent had knowledge of Reece's protected activity prior to abolishing his job.
Nor am I willing to hold that it can be inferred by the timing of informing Reece that he would be terminated that Respondent was motivated by hostility towards Reece for engaging in organizational activities on behalf of the Union. Apart from the termination, there is not a scintilla of evidence that Respondent harbored hostility towards the Union in general or towards Reece or other Union supporters in particular. Counsel for the General Counsel reasons that since Reece was notified that he was to be terminated on the day following a Union meeting, to take effect fifteen days later, an inference or presumption of union animus is established.(9) I do not so find on this record. Thus it has not been established that Respondent knew that the Union meeting was being conducted on January 5 at the Community Center, or that Reece was present, or that Reece was a strong supporter for the Union. Nor is their any indication that a Union meeting was of such significance to Respondent that termination of Reece would be an act which someone hostile to the Union might take.
To find a violation of the Statute herein, while Reece's protected activity is abundantly demonstrated by the evidence, it would have to be inferred that Respondent knew of that activity and also inferred that Respondent had animosity towards the Union and its supporters. Thus, a violation could only be established by piling inference upon inference to conclude Respondent had an unlawful motivation when terminating Reece. As stated above, I am unwilling to make such inference on the record herein. Accordingly, I conclude that the General Counsel has not made a prima facie showing that Respondent violated the Statute as alleged and I therefore shall recommend that the Complaint be dismissed. See Letterkenny Army Depot.
Moreover, were I to find that a prima facie case has been established, I would nevertheless find that the General Counsel has not demonstrated that the reasons given by Respondent for Reece's termination were pretextual. Rather, the record reveals that prior to Reece's organizational activities, Respondent's NCO Club managers were concerned with the financial deficit generated from the dining operation and indeed were considering reducing the number of cooks to curtail expenses. It has also been established from the facts that Reece was procedurally a logical choice to have his job eliminated and Respondent's justification for its action has not been shown to be frivolous nor improbable nor has such explanation been substantially undermined by evidence or analysis.
In view of the entire recorded herein I conclude it has not been establish that Respondent violated the Statute as alleged, and I recommend the Authority issue the following:
It is hereby ordered that the Complaint in Case No. AT-CA-30524 be, and hereby is, dismissed.
Issued, Washington, DC, September 27, 1994
SALVATORE J. ARRIGO
Administrative Law Judge
(If blank, the decision does not have footnotes.)
Authority's Footnote Follows:
*/ In view of this disposition, we do not pass on the Respondent's requests to strike portions of the Union's arguments in support of the exceptions.
ALJ's Footnotes Follow:
1. Respondent's unopposed motion to correct the transcript is hereby granted.
2. Reece was a member of the military and accordingly was only available to work evenings and week-ends.
3. There were approximately 56 employees in the non-appropriated fund unit, which encompassed the NCO Club, the golf course, child care center and other facilities.
4. One employee, a "Club Operations Assistant," testified that he signed a card in support of the Union for Reece at work in the kitchen where other employees were working one evening.
5. An NA8 cook already worked the Saturday shift.
6. There is testimony that at some time the Human Resources Office had concluded that a "flexible" designation could not be made by management.
7. It is Agency policy not to issue termination notices during the period from December 15 to the following January 3.
8. One employee called as a witness by counsel for the General Counsel identified himself as a "Night Manager" in the restaurant but acknowledged under cross-examination that he was actually a "Club Operations Assistant" which was not a supervisory or managerial position.
9. Counsel for the General Counsel cites the decision of the Administrative Law Judge in United States Department of the Interior, Office of the Secretary, U.S. Government Comptroller for the Virgin Islands, 11 FLRA 521 (1983), for the proposition that there is always a suspicion or presumption of discriminatory motivation when an action is taken against an employee and protected activities are involved. While a suspicion may exist, I disagree that a presumption of discriminatory motivation is established on those facts alone. Suspicion is not evidence and speculation is not proof.