[ v54 p987 ]
The decision of the Authority follows:
54 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C.
U.S. DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, NATIONAL OCEAN SERVICE,
COAST AND GEODETIC SURVEY AERONAUTICAL
CHARTING DIVISION, WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2640, AFL-CIO
DECISION AND ORDER
August 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I . Statement of the Case
These unfair labor practice (ULP) cases are before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by Counsel for the General Counsel (General Counsel) and the Respondent. The Respondent and the General Counsel also filed Oppositions to one another's Exceptions.
The Judge's decision resolved four ULP complaints resulting from six charges filed by the Union. The Judge recommended that the complaint in Case No. WA-CA-40665 be dismissed in its entirety and no exceptions were filed to the recommendation. 2
In Case No. WA-CA-40701, the Judge found that the Respondent violated the Federal Service Labor - Management Relations Statute (the Statute) as charged. With respect to the consolidated complaint in Case Nos. WA-CA-40661, WA-CA-40662 and WA-CA-40668 and the complaint in Case No. WA-CA-40812, the Judge recommended dismissal in part, but concluded that Respondent violated the Statute as charged in other part. The Respondent excepted to the Judge's findings of violations, and the General Counsel excepted to the recommended dismissals. The General Counsel also excepted to the recommended remedy.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision. Specifically, we find, in agreement with the Judge, that the Respondent violated the Statute as charged in Case Nos. WA-CA-40701 and WA-CA-40661. We also agree with the Judge's finding that the Respondent did not violate the Statute as charged in Case No. WA-CA-40668. With respect to Case No. WA-CA-40662, we find, counter to the Judge, that the Respondent did not violate the Statute as charged. Finally, in Case No. WA-CA-40812, we conclude, as the Judge did, that the Respondent violated the Statute as alleged in certain portions of the complaint, but did not with respect to others. However, we base our finding of a violation on reasoning different from that of the Judge.
II . Background and Judge's Decision
A . The Facts
The facts are set out fully in the Judge's decision. We provide the facts that are pertinent to our analysis below.
The events underlying these cases all took place between March and August 1994, within the Aeronautical Charting Division (ACD), a component of the Coast and Geodetic Survey. 3 The Coast and Geodetic Survey is an office within the National Oceanic and Atmospheric Administration (NOAA). NOAA is a primary national subdivision of the Department of Commerce.
ACD has offices in Riverdale, Maryland (Riverdale) and Washington, D.C. The Union is the exclusive representative of some, but not all of the employees of the ACD. Those employees in ACD at Riverdale not represented by the Union were not members of any bargaining unit at times pertinent to this case. With one exception not directly pertinent here, see n.1, supra, the violations alleged in the complaints all concern the Respondent's treatment of Brian Anthony - Jung (Anthony - Jung), the Union's Vice President.
Anthony - Jung began employment with ACD in 1991 as a supply clerk in the Distribution Branch at Riverdale, and in February 1993, became vice-president of the union. Although employees in the Distribution Branch were members of the bargaining unit represented by the Union, there had been no Union official at the Branch's offices in Riverdale until Anthony - Jung becamevice-president.
Anthony - Jung took an active role in the Union. He filed ULP charges and grievances, and negotiated on behalf of the bargaining unit. He also represented the Union at a February 1994 ULP hearing, testifying that supervisory personnel in the Distribution Branch made coercive statements with respect to his union activities, and that his first-level supervisor lowered his rating in a performance progress review because of those activities. 4
In March 1994, Anthony - Jung was promoted to a computer specialist position in the Systems Development Group (SDG), a component of ACD's Requirements and Technology Staff (R&T Staff). The R&T Staff was an organizational unit not included in the Union's bargaining unit. The SDG was, however, colocated with the Distribution Branch at Riverdale.
On Anthony - Jung's first day in SDG, his new supervisor instructed him that no union business was to be conducted during working hours. The supervisor had been directed to so instruct Anthony - Jung. Nine days later on March 16, Anthony - Jung was called to a meeting with his supervisor and the newly appointed chief of the Distribution Branch, and was instructed again that union business could be conducted only after work and during lunch. 5 On March 17, Anthony - Jung filed a representation petition for a unit of SDG employees. Anthony - Jung continued to represent bargaining unit employees in the Distribution Branch. Two months later, on May 17, Anthony - Jung was warned by his supervisor about disrupting operations in the Distribution Branch by interrupting the Branch Chief without an appointment.
1. The Events of May 27; the Incident for Which Anthony - Jung Was Reprimanded
During his lunch period on May 27, Anthony - Jung delivered a letter to the Distribution Branch Chief concerning the Respondent's alleged failure to comply with an Authority order in a previous ULP case. Later that day, after the Branch Chief met with the Union President, he found Anthony - Jung talking to a Distribution Branch employee at her desk. The Branch Chief asked the employee if she was on break, to which she gave an ambiguous response. The Branch Chief and the employee then left to attend to a work-related matter. When the Branch Chief returned, he told Anthony - Jung that he was interrupting other employees' work.
A short time later, the Branch Chief again returned to the area where the previous conversations took place and saw Anthony - Jung involved in a conversation with the Union President. Anthony - Jung and the Union President had moved and were now standing near the entrance to the public sales room. The Branch Chief believed that he heard the Union President discussing the ULP compliance matter that had been the subject of Anthony - Jung's letter delivered earlier that day.
After returning to his office, the Branch Chief again asked the employee whether she had been on break when she was talking to Anthony - Jung. She replied that she was not sure; she had met Anthony - Jung at the soda machine and they returned to her desk and started talking. She told the Branch Chief that she had not taken her break that afternoon. The Branch Chief dropped the matter, informing the employee that that was the end of it.
On May 31, the next work day, the Branch Chief wrote a memorandum to Anthony Jung's supervisor stating that Anthony - Jung had been conducting union business in front of the sales room. Subsequently, on June 22, the supervisor issued Anthony - Jung a formal reprimand specifically citing him for conducting union business on May 27. The reprimand referred to previous warnings against engaging in union activity during duty hours. On June 23, Anthony - Jung filed the charge in Case No. WA-CA-40701, challenging the reprimand.
2. The Events of May 31 and Thereafter: the Lunch Period, Work Break, and "Union Shop" Incidents
At some undetermined time on May 31, Anthony - Jung's supervisor asked him what specific time he took lunch on May 27. According to the supervisor, the Distribution Branch Chief wanted to know when on that day Anthony - Jung had delivered the letter concerning the Respondent's alleged noncompliance with an Authority order. Anthony - Jung replied that he delivered it during his lunch period.
At approximately 8:00 a.m. on June 1, his supervisor informed Anthony - Jung that he and the other two employees in SDG would have their lunch periods reduced from one hour to one-half hour. Anthony - Jung protested, saying that he needed the time to take care of union business and that his second-level supervisor had previously told him that the lunch period was a full hour.
Later on June 1, Anthony - Jung's supervisor informed him that after checking the matter further, the lunch period would remain a full hour. However, the supervisor also told Anthony - Jung that it was necessary to assign employees a fixed lunch hour rather then permit employees to take lunch at any time during a two-hour window as had been the practice. The supervisor expressed concerns about office telephone coverage during the lunch period, occasioned by his attendance at meetings and a computer problem that was occupying much of his time. Anthony - Jung was given a choice of 12:00 p.m.-1:00 p.m. or 12:30 p.m.-1:30 p.m. because a more senior employee had been given her requested lunch period of 11:30 a. m.-12:30 p.m.
Anthony - Jung and his supervisor also discussed office policy regarding work breaks. During this discussion the supervisor reiterated that, unlike the unionized Distribution Branch, there were no scheduled 15-minute breaks in SDG. In SDG, employees were to take breaks as needed to use the bathroom, or to get coffee or soda. According to Anthony, the supervisor told him that SDG was "not a union shop" and "it was not for negotiation, that was the way it was going to be...." Judge's Decision at 22 (quoting from Tr. at 485).
A little less than two weeks later, on June 13, Anthony - Jung filed the ULP charges in Case Nos. WA-CA-40661, WA-CA-40662, and WA-CA-40668.
3. Anthony - Jung's July 21 Ban from the Building While on Annual Leave
On the morning of July 21 Anthony - Jung's supervisor gave him a memorandum banning him from the facility while on annual leave. Anthony - Jung immediately protested the ban, telling his supervisor that it would interfere with his legitimate union activities. The supervisor said that he would check out Anthony - Jung's claim and get back to him. Immediately after lunch that day Anthony - Jung was told by his supervisor that he could come back to the facility while on annual leave and conduct union business, as long as he had prior approval from the supervisors of employees with whom he was to meet, and if he followed appropriate procedures.
This event, as well as those discussed below in paragraphs 4 and 5, formed the basis of the charge in Case No. WA-CA-40812.
4. Respondent's August 24 Refusal to Grant Anthony - Jung Annual Leave to Conduct Union Business
On August 24, Anthony - Jung was denied a request for a few hours of annual leave to conduct union business. Anthony - Jung testified that he went to his second-level supervisor, who said that he saw no problem with the request and that he would talk to Anthony - Jung's supervisor. Subsequently however, the supervisor advised Anthony - Jung that the leave request was disapproved, slating that he was aware of Anthony - Jung's contact with the second-level supervisor, but that the Chief of the R&T Staff had decided to disapprove the request.
5. Anthony - Jung's Detail and the Restrictions Placed on His Activities
a. The Terms of Anthony - Jung's Detail
On August 23 or 24, the Respondent gave Anthony - Jung two memoranda, dated August 17 and August 23, advising him that he was detailed for 30 days to work on a new project, in a different location from his usual work area. The assignment consisted of some computer-related projects, for which he was furnished a computer with the necessary software. The work location was in an unoccupied section of the building, about 100 feet from the nearest telephone. The detail was to last 30 days.
The memorandum dated August 17 concerned the specifics of the work project to which Anthony - Jung was assigned on the detail. The memorandum dated August 23, on the other hand, contained the bulk of the information about the detail, including a number of restrictions on Anthony - Jung's activities. The memorandum cautioned Anthony - Jung that he was not allowed access to the computer room where he had previously worked. In addition, the memorandum prohibited Anthony - Jung from contacting Distribution Branch employees. Finally, the memorandum reminded Anthony - Jung that he was limited to 5 minutes per phone call, a restriction that had been previously imposed.
Respondent later extended Anthony - Jung's detail, initially for another 30 days. The detail was still in effect at the time of the hearing in the case, which took place on October 26 and 27, and November 2, 3, and 7.
b. The Respondent's Asserted Reasons for the Detail
i. The Suitability Issues
The August 23 memorandum stated that "suitability issues," recently brought to management's attention, necessitated the detail. General Counsel Exhibit 15. No other reasons for the detail were mentioned. The suitability issues arose as a result of a routine background investigation conducted by the Office of Personnel Management (OPM) . The background investigation was required by Anthony - Jung's promotion in March to a sensitive position. OPM's report of the investigation was issued on August 3, reaching Anthony - Jung's supervisors sometime around August 12. The report stated that OPM made a "basic suitability determination" that there were "potentially actionable issues which, standing alone, may very possibly be disqualifying under security/suitability considerations." Respondent Exhibit 28. OPM required the Respondent to make a suitability determination, ranging from a favorable determination to removal from the position, and notify OPM of that determination within 90 days of receipt of the report. OPM required that a favorable determination state briefly what the Respondent considered in making that determination.
OPM's report included a discussion of Anthony - Jung's personal and employment history. Part of that history was a 1986 dismissal from a civilian position with the Department of the Army for falsifying a job application. The charge was that Anthony - Jung had failed to disclose a misdemeanor conviction that occurred while he was in Korea. The report also discussed Anthony - Jung's explanation of the events underlying his dismissal, and his subsequent efforts to clear his record. Those efforts had been sufficiently successful so that in 1989, OPM determined that Anthony - Jung was suitable for competitive Federal service. 6
Although the Respondent received OPM's report in August, the Respondent had previously been made aware of its substance. Prior to accepting the promotion to computer specialist in February 1994, Anthony - Jung requested of Respondent's personnel office that his 1986 dismissal be thoroughly reviewed and discussed with the managers to ensure that there were no problems on that account. He was later informed that his previous dismissal had been discussed with the R&T Staff Chief, and that it would not be a problem unless new information turned up during his background investigation.
ii. The Respondent's Additional Reasons for Anthony - Jung's Detail
At the ULP hearing, Respondent's witnesses asserted a number of other reasons for detailing Anthony - Jung. For example, the R&T Staff Chief stated that he did not trust Anthony - Jung. Specifically, he testified that he had become aware of a number of instances of disruptive behavior by Anthony - Jung. Further, the Staff Chief asserted that at the ULP hearing in NOAA I, Anthony - Jung had possession of two invoices that he was not authorized to have and that the invoices had been altered. The Staff Chief also had received information from Anthony - Jung's supervisor that Anthony - Jung had said that he could "bring the operation to its knees." Tr. at 895. Finally, the Staff Chief believed that Anthony - Jung had made some false claims in ULP cases, which in the Staff Chief's view, reflected negatively on Anthony - Jung's honesty.
In addition to the Staff Chief's concerns, Anthony - Jung's supervisor also harbored suspicions that he communicated to his superiors. The supervisor suspected that Anthony - Jung was connected to the disappearance of some documents from the computer room, and to the loss, in a hard disk crash, of a program on which the supervisor had worked for months. The supervisor's suspicions were discussed with other management officials in a meeting on July 13, but no further action resulted from these discussions.
B . The Judge's Decision
1. The Letterkenny Analysis
The Judge began his analysis with a discussion of the analytical framework the Authority has prescribed for cases alleging discrimination for protected activity. Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny). Under Letterkenny, the General Counsel establishes a prima facie showing of discrimination by establishing 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. Id. at 118. If the General Counsel fails to make the required prima facie showing, the case ends without further inquiry. Id. Once the General Counsel makes the required prima facie showing, an agency 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 even in the absence of protected activity. Id. The General Counsel may seek to establish that the agency's reasons for taking the action were pretextual. Id. at 120.
2. Case No. WA-CA-40701 - The Reprimand
The complaint in Case No. WA-CA-40701 alleges that the Respondent violated section 7116(a)(1), (2), and (4) of the Statute by issuing Anthony - Jung a formal reprimand in retaliation for activity protected by the Statute. Applying the Letterkenny framework, the Judge first found that the General Counsel established a prima facie case. As to the first prong, the Judge found that Anthony - Jung had engaged in protected activity based on undisputed evidence that Anthony - Jung had been an active union advocate and that his union advocacy continued after his promotion.
The Judge also found that Anthony - Jung's protected activity was a motivating factor in the decision to discipline him. In so finding the Judge noted that: (1) one of the first things his new supervisor did when Anthony - Jung reported for duty was discuss his union activity; (2) the incident that prompted the reprimand occurred shortly after Anthony - Jung had served the Distribution Branch Chief with a letter alleging Respondent's noncompliance with an Authority order; (3) Anthony - Jung's supervisor had been instructed about management's concern over his union activity; and (4) the supervisor based the reprimand solely on the Distribution Branch Chief's report, without an independent investigation. Accordingly, the Judge concluded that the General Counsel had established its prima facie case.
The Judge then rejected the Respondent's rebuttal arguments. First, he discounted its claim that the reprimand was a mild form of discipline because no evidence was presented about the Respondent's personnel policies. Second, he rejected Respondent's contention that the reprimand was based on legitimate management concerns. The Judge noted that even though the Distribution Branch Chief observed two nonwork related conversations involving Anthony - Jung on May 27, he cited only that which he believed concerned union-related matters. The Judge concluded that the Branch Chief was not concerned about whether work was being interrupted or neglected, but rather whether Anthony - Jung was conducting union business.
Finally, the Judge determined that the incident was "rather trivial" and that it was unlikely that Respondent would have pursued the matter had Anthony - Jung not been an aggressive union advocate. Accordingly, the Judge concluded that the reprimand was a form of discrimination within the meaning of section 7116(a)(2) and (4) of the Statute which also interfered with Anthony - Jung's right to act for a labor organization in violation of section 7116(a)(1).
3. Case Nos. WA-CA-40661, WA-CA-40662, and WA-CA-40668
The consolidated complaint in Case Nos. WA-CA-40661, WA-CA-40662, and WA-CA-40668 alleges that the Respondent violated section 7116(a)(1), (2), and (4) of the Statute by changing Anthony - Jung's lunch period and work break arrangements, and by telling him that the R&T Staff is nonunion and would stay that way. The Judge found that the Respondent violated the Statute by changing Anthony - Jung's lunch and break arrangements, but not by making a coercive statement.
a. The Lunch Period Change
The Judge first found that the General Counsel established a prima facie case that Anthony - Jung's union activities were a motivating factor in his supervisor's June 1 decision to place his lunch period on a fixed schedule. The Judge noted that the change in lunch period schedules was announced shortly after the Distribution Branch Chief reported to Anthony - Jung's supervisor about Anthony - Jung's May 27 conversation with the Union President. The change was also instituted immediately after the Distribution Branch Chief had expressed concern about the times during which Anthony - Jung was free to engage in union activities. Additionally, the Judge reiterated his previous findings regarding management's general concern about Anthony - Jung's union activity.
With respect to the Respondent's rebuttal, the Judge found that there was no challenge to Anthony - Jung's supervisor's testimony that he had suffered a computer failure and that he was required to attend meetings that took him away from the office when telephone coverage was required. However, the Judge found that the Respondent's rebuttal did not explain the timing of the change. The Judge noted that there was no testimony identifying the timing of the computer failure or any other explanation as to why the change was implemented on June 1. Further, the Judge also found, relying on the supervisor's own testimony, that the choice of lunch periods offered to Anthony - Jung would not have guaranteed the office continuous telephone coverage. Finally, the Judge noted that although none of the reasons offered by the Respondent appeared to justify a permanent change, the change was still in effect at the time of the hearing, five months after the change was implemented. The Judge concluded that the fixed lunch period was not motivated primarily by business reasons but was designed to discourage Anthony - Jung's union activity. Accordingly, he found that the Respondent violated the Statute as charged.
b. The Work Break Allegation
The Judge credited Anthony - Jung's testimony that his supervisor discussed the absence of work breaks in SDG on June 1, noting that it corresponded in general to the supervisor's testimony as well. 7 The Judge acknowledged that the Respondent was entitled to restrict Anthony - Jung's activities during working hours to the same extent it restricted other SDG employees and that there were no official 15-minute breaks in SDG. However, the Judge found that the Respondent violated the Statute because its reiteration of the policy was not prompted by a concern that Anthony - Jung was staying away from his desk, but rather by the suspicion that he was using his informal breaks to conduct union business. The Judge concluded that the supervisor's restatement of the unavailability of an official break constituted discrimination within the meaning of section 7116(a) (2) and (4) of the Statute and interference, restraint, and coercion within the meaning of section 7116(a)(1).
c. The "Union Shop" Statement
The Judge credited Anthony - Jung's uncontroverted testimony that while discussing work breaks, his supervisor stated that SDG was not a union shop, and "it was not for negotiation, that that was the way it was going to be...." Judge's Decision at 22 (quoting from Tr. at 485). However, the Judge found that the statement did not constitute interference, restraint, or coercion of Anthony - Jung in the exercise of his statutory rights. The Judge concluded that, taken in context, the statement did not convey a message that union activity in the shop would be futile.
Instead, the Judge emphasized that the statement was part of a discussion concerning work breaks, an established practice in the unionized Distribution Branch but not in the unrepresented R&T Staff. The Judge found that the statement in question was about breaks, not union activity. According to the Judge, the statement was intended to convey that because the shop was non-union, breaks were not for negotiation, and that the "no-break" practice would continue. The Judge found that the supervisor's statement did not imply that the shop could never be unionized.
The Judge also rejected the General Counsel's suggestion that in interpreting the supervisor's statement the Judge should rely on an earlier statement by the supervisor that he believed Anthony - Jung to be "through with the union." First, the Judge found the evidence insufficient to determine that such a statement was made. Second, even assuming that the statement was made, the Judge found that it would not change the meaning of the statement at issue. The Judge recommended that the complaint be dismissed with respect to this matter.
4. Case No. WA-CA-40812
The complaint in Case No. WA-CA-40812 alleges that the Respondent violated section 7116(a)(1),(2), and (4) of the Statute by: (1) ordering Anthony - Jung not to remain in the building where he worked while on annual leave; (2) denying Anthony - Jung's request for annual leave on August 24 to perform union activity; (3) detailing Anthony - Jung to a room without a telephone and limiting his telephone use; (4) prohibiting him from entering the computer room where he had been assigned until that date; (5) instructing him not to visit the work area of employees in the Distribution Branch; and (6) informing him that "suitability issues" required management to take measures against him. The complaint alleges that all these actions were taken in reprisal for his protected union activity.
a. Anthony - Jung's July 21 Ban from the Building While on Annual Leave
The Judge recommended that this allegation of the complaint be dismissed. The Judge found that the ban was rescinded before it ever went into effect. The Judge noted that the same day Anthony - Jung's supervisor issued the ban, he later approved two hours of leave for Anthony - Jung to engage in representational activity.
b. Respondent's August 24 Refusal to Grant Anthony - Jung Annual Leave for the Purpose of Engaging in Union Activities
The Judge concluded that the denial of Anthony - Jung's annual leave request on August 24 was discriminatory within the meaning of section 7116(a)(2) and (4) of the Statute, and coercive within the meaning of section 7116(a)(1). The Judge noted in this regard that the Respondent's entire defense was to deny that the incident ever occurred, and to claim that Anthony - Jung's supervisor had never denied a leave request made by Anthony - Jung.
The Judge rejected the testimony of the Respondent's witnesses and credited Anthony - Jung's version of the incident. First, the Judge relied on an SF-71 annual leave request Anthony - Jung submitted on August 25, the day following the alleged denial, that specifically referenced the denial of leave the day before. Second, the Judge credited Anthony - Jung's testimony over that of the Respondent's witnesses because Respondent failed to call Anthony - Jung's second level supervisor. Anthony - Jung had testified that he had sought his second level supervisor's assistance after his supervisor refused to accept the Form SF-71 leave request on August 24. The Judge drew an adverse inference against the Respondent from its failure to call the second level supervisor to deny his part in the events of August 24 as described by Anthony - Jung. Third, the Judge found Anthony - Jung's supervisor's credibility on the issue weakened by his denial, shown to be erroneous, that he had ever refused any of Anthony - Jung's requests for annual leave. The Judge referred in this regard to an August 8 annual leave request by Anthony - Jung that had been denied.
c. Anthony - Jung's Detail and the Restrictions Placed on His Actions
The Judge concluded that the Respondent violated sections 7116(a)(1), (2), and (4) of the Statute when it prohibited Anthony - Jung from having any contact with Distribution Branch employees, and when it detailed him out of, and barred him from, the computer room and placed him under certain restrictions for "an unnecessarily long" period. 8
Finding that the General Counsel had established a prima facie case under Letterkenny. the Judge rejected the Respondent's defense to the ULP allegations. The Judge concluded that whatever legitimacy the original 30-day detail and accompanying actions may have had, there was no justification for extending those actions beyond the 30-day period. The Judge found that a reasonable time to resolve the matters that had prompted the detail had expired without the Respondent having taken such steps as would be considered normal in the absence of Anthony - Jung's protected activities. 9
In support of his conclusion the Judge found that none of the security considerations cited by Respondent required prohibiting all contact between Anthony - Jung and Distribution Branch employees. Second, the Judge reasoned that the OPM report did not require the detail or the accompanying restrictions. The Judge noted that the OPM report required only that the Respondent investigate the matters related to Anthony - Jung's suitability and decide upon an appropriate action. Yet at the time of the hearing, which occurred approximately 70 days into the 90-day period allowed by OPM for the Respondent's response, there was no indication that the Respondent had determined what action to take, nor was there information offered about the nature or progress of the investigation.
The Judge also found that there was nothing in the record that indicated that the OPM investigation revealed any significant information beyond what Anthony - Jung had originally disclosed. Similarly, the Judge found no indication in the record that the Respondent had made any further attempt to confirm Anthony - Jung's suspected misconduct.
Finally, the Judge cited the Respondent's statement on August 31 that it was finalizing its evaluation of the suitability issues and considering appropriate action. However, the Judge found that no action had been taken as of the hearing, two months later.
Based on all of these considerations, the Judge found the Respondent's failure to take action in the time following the original 30-day detail constituted an unreasonable delay and indicated that Anthony - Jung's extended detail was not based on concerns arising from OPM's report or the other matters raised by Respondent's officials. Thus, the Judge concluded, the Respondent had failed to rebut the General Counsel's prima facie showing of discrimination.
5. Summary of the Judge's Findings and Conclusions and the Recommended Remedy
The Judge found that the Respondent violated the Statute when it: (1) reprimanded Anthony - Jung; (2) changed Anthony - Jung's lunch period; (3) reiterated the elimination of scheduled break periods; (4) denied Anthony - Jung's request for annual leave on August 24; (5) barred Anthony - Jung from contacting Distribution Branch employees; and (6) detailed Anthony - Jung for an unreasonably long period of time. He recommended that all other allegations in the complaints be dismissed.
The Judge's recommended remedial order required the Respondent to cease and desist from its unlawful acts and to post a notice signed by the Assistant Administrator for the National Ocean Service at its Riverdale facility. The Judge also included language in the notice to reflect the finding of past violations and to further assure employees that, despite this history, the Agency recognizes their statutory rights. With respect to Anthony - Jung, the Judge ordered the Respondent to rescind the June 22 reprimand, restore his flexible lunch hour and any annual leave he used to conduct union business as a result of unlawful restrictions on his lunch and break time, and offer him reinstatement to his former work assignment and location.
However, the Judge rejected three remedial proposals offered by the General Counsel. First, the Judge did not direct the Respondent to initiate disciplinary proceedings against Anthony - Jung's supervisor and the Distribution Branch Chief. According to the Judge, although the Respondent's violations were serious, they did not warrant such an extraordinary remedy. Second, because the violations were confined to the Riverdale activity, the Judge did not require the Secretary of Commerce to sign the notice. Finally, the Judge did not direct the Deputy Undersecretary for NOAA to conduct a meeting to explain the circumstances of the agency's violation with respect to Anthony - Jung's reprimand.
III . Positions of the Parties
A . Respondent's Exceptions
The Respondent first excepts to the Judge's finding that Anthony - Jung is not an "inherently incredible witness," contending that Anthony - Jung's history, including a conviction for smuggling, and his inconsistent testimony at the hearing, demonstrate that Anthony - Jung is a "dishonest individual." Brief in Support of Exceptions at 26. The Respondent also contends that the Judge failed to adequately explain his credibility determinations and, therefore, the Authority is free to consider Anthony - Jung's credibility on its own and not defer to the Judge's determination.
The Respondent also excepts to the Judge's finding that the reprimand of Anthony - Jung violated the Statute. In that regard, the Respondent contends that Anthony - Jung was properly reprimanded for his failure to obey a lawful order not to conduct union business during working hours. The Respondent denies that Anthony - Jung's protected activity was a motive for its action.
With respect to the change to a fixed lunch period, the Respondent contends that the change was implemented for legitimate management considerations. The Respondent also excepts to the Judge's assertion that no other employee was subject to a fixed lunch period.
The Respondent excepts to the Judge's conclusion that Anthony - Jung's supervisor's restatement of the unavailability of an official work break constituted a ULP. The Respondent contends that the complaint alleges only that it violated the Statute by changing Anthony - Jung's work break arrangements on June 1. According to the Respondent, the Judge acknowledges that the practice in SDG was not to provide formal 15-minute breaks and that it was entitled to restrict Anthony - Jung's activities during working hours to the same extent it restricted other SDG employees. The Respondent argues that the restatement of a legitimate policy could not have been a ULP.
The Respondent excepts to the Judge's finding that it denied Anthony - Jung's request for annual leave on August 24. Specifically, the Respondent disagrees with the Judge's determination to credit Anthony - Jung rather than the Respondent's witnesses. Although Anthony - Jung testified that he submitted such a request and that it was ultimately denied by the R&T Staff Chief, both the Staff Chief and Anthony - Jung's supervisor denied that any such request had ever been submitted. Second, pointing out that the allegedly rejected August 24 leave request was never introduced into evidence, the Respondent argues that an August 25 leave request upon which the Judge relied is not the "best evidence." Brief in Support of Exceptions at 41.
The Respondent contends that it did not commit a ULP when it extended Anthony - Jung's detail beyond its original 30-day period. In the Respondent's view, there was nothing unreasonable about the length of Anthony - Jung's detail. The Respondent notes that the detail had not exceeded the 90-day deadline for its response to OPM. The Respondent also argues that the Judge effectively established a 30-day time limit for agency action in such circumstances and this would interfere with the Respondent's rights under section 7106(a) of the Statute to determine its internal security practices and assign work. Finally, the Respondent asserts that the detail was a legitimate response to OPM's background investigation and its other concerns regarding Anthony - Jung's trustworthiness.
With respect to the Judge's recommended remedy, the Respondent raises two objections. First, the Respondent contends that the Judge erred in ordering it to restore annual leave to Anthony - Jung for lunch or break time he used to conduct union business, because the Judge's reasoning rests on the faulty premise that Anthony - Jung used annual leave to perform union business when he otherwise would not have had to do so. Second, the Respondent also contests that portion of the remedy requiring that it offer Anthony - Jung reinstatement to his former work assignment. The Respondent asserts in this regard that such a remedy is unnecessary and moot because Anthony - Jung is no longer on detail, and has been reassigned at his request.
B . The General Counsel's Opposition
The General Counsel contends that the Authority should defer to the Judge's credibility determinations. In addition, the General Counsel contends that the Respondent's assertions regarding Anthony - Jung's character are either irrelevant or unsupported by record evidence.
With respect to the Respondent's exceptions to the Judge's substantive findings the General Counsel asserts that the Judge's conclusions are "correct and consistent with the evidence." Opposition at 4.
Finally, the General Counsel argues that the Respondent's argument about the restoration of annual leave should be rejected as premature because it concerns a matter best resolved in compliance proceedings. The General Counsel also maintains that the Judge's recommendation providing Anthony - Jung the opportunity to return to his prior position is appropriate. 10
C . The General Counsel's Exceptions
The General Counsel first excepts to the Judge's finding that Anthony - Jung's supervisor's statement that the R&T Staff was non-union was not a violation of the Statute. The General Counsel argues that when considered in conjunction with other management actions, the only reasonable interpretation of this statement is as a warning to Anthony - Jung not to pursue the unionization of SDG.
The General Counsel also excepts to the Judge's dismissal of the complaint's ULP allegations regarding the purported July 21 building ban. The General Counsel maintains, contrary to the Judge's findings, that Anthony - Jung was in fact banned from the building while on annual leave.
In addition, the General Counsel contends that the Judge erred by failing to find that the Respondent's initial detailing of Anthony - Jung was a ULP. The General Counsel asserts that the grounds the Judge cited for finding that Anthony - Jung's extension of the detail violated the Statute, apply to the initiation of the detail as well. Further, the General Counsel objects that the Judge should have found that the 5-minute limitation on Anthony - Jung's telephone calls was a violation of the Statute.
The General Counsel also excepts to the Judge's failure to incorporate an order to initiate discipline against Respondent's supervisory personnel in the recommended order. The General Counsel argues that the egregious nature of the Respondent's conduct requires extraordinary remedies. The General Counsel also objects to the Judge's failure to order the Secretary of Commerce to sign the notice and, in addition, contends that the notice should be posted throughout NOAA. Finally, the General Counsel asserts that a high ranking NOAA official should be required to read the notice to unit employees.
D . The Respondent's Opposition
With respect to the alleged "union shop" statement, the Respondent has neither conceded nor expressly denied that the statement was ever made. Rather, the Respondent contends that even if such a statement did occur, it was merely a statement of fact and was not coercive.
With respect to the General Counsel's other exceptions to the Judge's findings, the Respondent asserts that those findings were adequately supported by the record.
Finally, the Respondent asserts that the violations alleged, even if true, are "garden variety" violations that do not warrant the imposition of the "nontraditional" and other exceptional remedies sought by the General Counsel. According to the Respondent, a cease and desist order and notice posting are sufficient remedies.
IV . Analysis and Conclusions
A . Anthony-Jung's Inherent Credibility
Relying on evidence concerning incidents in Anthony - Jung's past intended to demonstrate his dishonesty, and on what Respondent asserts is inconsistent and evasive testimony, the Respondent contends that Anthony - Jung is inherently incredible. The Judge declined to make such a blanket ruling, instead resolving specific credibility disputes as they arose throughout the case. For the reasons that follow, we agree that the Respondent has not shown that Anthony - Jung is inherently incredible.
1. Review of Credibility Determinations
As this case demonstrates, credibility determinations may be based on a variety of considerations. 11 Here the Respondent relies on character evidence, as well as alleged inconsistent testimony and the demeanor of the witness, to support its contention that Anthony - Jung's testimony should not be credited. With respect to witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify and accordingly the Authority attaches great weight to a judge's determinations based on demeanor. See, e.g., Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51 (1994) (Redstone Arsenal); see also Standard Drywall Products, Inc., 91 NLRB, 544, 545 (1950); Aiu v. Department of Justice, 70 MSPR 509, 516-17 (1996).
On the other hand, where other considerations are implicated in a credibility determination, the reasons for deferring to the judge are less compelling. See Herbert F. Darling, Inc., 267 NLRB 476, 477 (1983), remanded sub nom. Ewing v. NLRB, 732 F.2d 1117 (2d Cir. 1984) (where credibility resolutions are not based on demeanor, "the Board is as fully capable of analyzing the record as the [judge]"); see also, Storer Communications, Inc., 297 NLRB 296 n.2 (1989). Therefore, where a party raises exceptions to credibility determinations based on considerations other than witness demeanor, we will review those determinations based on the record as a whole. See Vance v. NLRB, 71 F.3d 486, 492 (4th Cir. 1995) (where judge does not base credibility findings on demeanor, the National Labor Relations Board may make independent evaluations of credibility based on the "weight of the evidence, established facts, inherent probabilities, and reasonable inferences drawn from the record as a whole"). 12
2. The Record Does Not Show That Anthony - Jung Is Inherently Incredible
Review of the record as a whole does not support Respondent's contention that Anthony - Jung is a "dishonest individual" (Brief in Support of Exceptions at 26) and a "shady character" (id. at 29). Respondent principally relies on Anthony - Jung's 1982 conviction in Korea for smuggling and his removal from a civilian position with the Department of the Army in 1986 for failing to disclose the conviction on his employment application. Although this history raises some questions about Anthony - Jung's honesty, this doubt is mitigated by the temporal remoteness of the events and by Anthony - Jung's subsequent conduct. In the latter regard, Anthony - Jung disclosed these incidents on subsequent employment applications (including those that resulted in his initial appointment with NOAA and his subsequent promotion to his position in SDG). Further, in 1987, Anthony - Jung requested that OPM review these events and determine his suitability for future federal employment. In 1989 OPM responded and found in favor of Anthony - Jung's suitability for federal employment, noting however that individual agencies reserve the right to adjudicate suitability for certain sensitive positions.
Further, the testimony Respondent characterizes as "evasive and contradictory," is insufficient from which to infer that Anthony - Jung is generally unworthy of belief. Review of the record reveals not so much contradictory testimony, as confusion resulting in large measure from Respondent's examination. 13
Although Respondent has introduced some evidence that reflects adversely on Anthony - Jung's credibility, in light of all the evidence, it is insufficient to establish that Anthony - Jung is "inherently incredible."
B . Case No. WA-CA-40701 - The Reprimand
In agreement with the Judge, we find that the Respondent violated the Statute by reprimanding Anthony - Jung in retaliation for protected activity. As discussed immediately below the Judge correctly applied the Letterkenny framework to the facts of this case.
1. The General Counsel Established a Prima Facie Case of Discrimination
It cannot be denied that Anthony - Jung was engaged in protected activity. As found by the Judge, Anthony - Jung was an active union representative who filed grievances and ULPs, and testified in Authority proceedings. Anthony - Jung continued his union activity after his promotion and filed a petition to have the Union certified as the exclusive representative of previously unrepresented employees in SDG.
We also agree with the Judge that Anthony - Jung's protected activity was a motivating factor in Respondent's decision to reprimand him. The presence of anti-union animus and the timing of the reprimand support this conclusion. See United States Department of Transportation, Federal Aviation Administration, El Paso, Texas, 39 FLRA 1542, 1551 (1991) (FAA, El Paso).
With respect to animus, the Respondent was clearly preoccupied with Anthony - Jung's union activity. It is significant, for example, that almost immediately after reporting to his new assignment in SDG, and prior to initiating any union activity, Anthony - Jung was warned not to conduct union activity on agency time. It is also important to note that the focus of this and other discussions was not that Anthony - Jung was spending excessive time on nonwork matters, but rather that he might be spending time specifically on union concerns. 14
In addition, the timing of events supports a conclusion that Anthony - Jung's union activity was a motivating factor. First, the incident that the Distribution Branch Chief chose to notice, and report the next day to Anthony - Jung's supervisor, occurred later on a day when Anthony - Jung, in his union capacity, had delivered a letter to the Branch Chief alleging agency noncompliance with an Authority order. Further, there is no evidence that Anthony - Jung's supervisor ever investigated the incident himself or attempted to get Anthony - Jung's side of the story. Instead, the supervisor issued the reprimand three weeks later on June 22. In the time between receiving the Branch Chief's report and issuance of the reprimand, Anthony - Jung had filed a number of ULP charges, including some that specifically named his supervisor as the management official responsible for the alleged ULPs.
The record therefore establishes that the Respondent was motivated by Anthony - Jung's union activity and that the reprimand was immediately preceded by specific instances of protected activity. Accordingly, in agreement with the Judge, we find that the General Counsel established a prima facie case of discrimination.
2. The Respondent Failed to Rebut the Prima Facie Case
Where the General Counsel has established that protected activity is a motivating factor, the burden shifts to the agency to show that it had a legitimate reason for taking the action and that it would have taken the action even in the absence of the protected activity. Letterkenny, 35 FLRA at 118. Whether or not the Respondent's evidence rebuts the prima facie case is a determination made on the entire record. Id. at 119. We agree with the Judge that the Respondent failed to rebut the prima facie case.
Record evidence supports the conclusion that with respect to the incident of May 27, the Respondent was concerned not with Anthony - Jung's neglect of his assigned duties, arguably a legitimate justification for the reprimand, but instead, exclusively with his continued union-related activities. In this regard, the Distribution Branch Chief observed Anthony - Jung in two nonwork-related conversations. The first was with a Distribution Branch employee. The second was with the Union President. However, only the conversation with the Union President, which the Branch Chief believed was about union-related matters, was the subject of the reprimand. 15 Further, the reprimand itself specifically refers to the fact that Anthony - Jung was conducting union-business.
Accordingly, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1), (2), and (4) of the Statute by reprimanding Anthony - Jung. 16
C . Case Nos. WA-CA-40661, WA-CA-40662, and WA-CA-40668-The Changes in Lunch Period and Work Break Policies, and the "Union Shop" Incident
1. The Respondent Violated the Statute by Changing Anthony - Jung's Lunch Period Arrangements
a. Prima Facie Case under Letterkenny
The Judge's finding that the General Counsel established a prima facie case that the Respondent discriminated against Anthony - Jung by changing his lunch period to a fixed hour is supported by the record. The timing of the change establishes that Anthony - Jung's union activity was a motivating factor. In this regard, Anthony - Jung's supervisor announced the lunch policy change the day after he received the report on Anthony - Jung's suspected use of work time to conduct union business.
b. Respondent's Rebuttal under Letterkenny
Respondent asserted that the fixed lunch periods were required to guarantee telephone coverage in the office. Prior to the change the other day-shift employee in SDG routinely took her lunch from 11:30 a.m. to 12:30 p.m., and the supervisor would cover the phones during that period. Anthony - Jung was free to take lunch at any time from 11:30 a.m. to 1:30 p.m. His supervisor testified that his availability to cover the phones was affected by meetings and by a computer failure that had caused him to lose significant work on a project.
The Judge found and the record evidence demonstrates that, notwithstanding the supervisor's testimony, the change in lunch policy was motivated by Anthony - Jung's union activities, not by a need to provide office coverage. First, because the more senior employee chose to continue her lunch between 11:30 a.m. and 12:30 p.m., office coverage would have required Anthony - Jung to take lunch after 12:30. However, Anthony - Jung was provided a choice of 12:00 p.m. to 1:00 p.m. or 12:30 p.m. to 1:30 p.m. If Anthony - Jung had chosen the 12:00 p.m. to 1:00 p.m. period, a half hour would be left uncovered, thus undermining the claim that coverage was the rationale for the change. 17
Second, neither of the problems that assertedly triggered the change appeared to be permanent ones, yet there was no evidence that any consideration had been given to whether the restriction on Anthony - Jung's lunch period should have been terminated once those problems subsided. Indeed, when Anthony - Jung was moved out of the computer room on August 24, he was no longer available for telephone coverage, the asserted reason for the change. Nevertheless, the terms of the detail were that "[t]here will be no change in policy, working hours, lunch break nor any other previously established working relationship." General Counsel Exhibit 15. Respondent's determination to continue the restrictions on Anthony - Jung's lunch break even though the stated rationale for those restrictions no longer applied undercuts the reliance on that reason. Accordingly, we find that the Respondent's asserted reasons for the lunch policy change were pretextual.
By changing Anthony - Jung's lunch schedule Respondent interfered with Anthony - Jung's exercise of rights protected by the Statute and discriminated against him based on his union activity. Accordingly, we find that Respondent violated section 7116(a)(1) and (2) of the Statute. 18
2. The Respondent Did Not Violate the Statute by Reiterating Its Work Break Policy on June 1
The record supports and we adopt the Judge's findings of fact with respect to the allegations concerning the Respondent's change in its policy on work breaks. However, we conclude, contrary to the Judge, that the Respondent's conduct did not violate the Statute as charged.
The complaint specifically alleges that on June 1 the Respondent unilaterally changed Anthony - Jung's work break arrangements, and that such conduct violated section 7116(a)(1), (2) and (4) of the Statute. The Judge found that Anthony - Jung's work break arrangements did not change on June 1, but rather changed as a natural consequence of his promotion in March from the Distribution Branch (where formal breaks were the practice) to SDG (where they were not). Nonetheless, the Judge concluded that the Respondent violated the Statute when it restated the policy on June 1, 1994 because the restatement was prompted by the suspicion that Anthony - Jung was using break time to conduct union business.
We hold, however, that the Respondent did not violate the Statute as charged when it reiterated the revised work break policy on June 1 because there was no change in policy announced on that date, as alleged in the complaint. That being the case, the factual underpinnings of the violation are not established. Accordingly, this aspect of the complaint should be dismissed. The Authority will not find a violation that is "neither charged in the complaint nor litigated at the hearing." U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467 (1995) (quoting from Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1074 (1st Cir. 1981)).
3. The Respondent Did Not Coerce Anthony - Jung by Stating That the R&T Staff Would Remain Nonunion
For the reasons discussed below, we adopt the Judge's finding that the General Counsel has not demonstrated that Anthony - Jung's supervisor stated, directly or implicitly, that the R&T Staff would remain nonunion. Accordingly, we dismiss this aspect of the complaint.
Anthony - Jung's uncontroverted testimony was that in the June 1 conversation concerning the lack of scheduled work breaks in SDG his supervisor said that "it was not a union shop, it was not for negotiation, that that was the way it was going to be and that there was no discussion to take place on it." 19 The complaint characterized the supervisor's statement as asserting that "the Requirements and Technology Staff is non-union and would stay that way." General Counsel Exhibit 1(k) ¶ 14. The Judge, on the other hand, interpreted the supervisor as stating only that the no-break policy was not for negotiation and would not change. The Judge thus concluded that the record evidence, i.e., Anthony - Jung's testimony, did not support the complaint's characterization of the conversation.
The Judge's contextual analysis is sound. There is no evidence that the supervisor's express words were "the R&T staff is non-union and would stay that way" and Anthony - Jung's paraphrase of the alleged discriminatory statement is ambiguous. The supervisor's statement that "it" was not for negotiation and would stay that way, reasonably refers to work breaks, not the staff's non-union status. First, the conversation arose in a conversation specifically about breaks. Second, the Judge's analysis provides a reasonable account of the conversation because work breaks are matters over which a supervisor could negotiate, whereas whether the R&T Staff would become part of a bargaining unit is not.
The General Counsel's specific arguments raised in the exceptions are unpersuasive. Essentially, the General Counsel asks that the statement be considered in a larger context, citing first an alleged previous isolated remark by Anthony - Jung's supervisor that he believed that Anthony - Jung was "through with the union," and second, an "obvious " belief on the Respondent's part that an "unstated quid pro quo for the 'promotion' of Anthony - Jung would be the cessation of union activity." Exceptions at 17. Neither contention constitutes reason to overturn the Judge's determination.
The Judge's refusal to consider the supervisor's alleged statement that he believed Anthony - Jung was "through with the union" was reasonable. Testimony concerning that remark was made in another context and there was no suggestion at the hearing that the two statements were related in any way. Moreover, even assuming the supervisor made the "through with the union" statement, the statement's tenuous connection to the "union shop" statement militates against its relevance in interpreting the latter statement. 20
Finally, the General Counsel provides no record support for the claim that the Respondent believed there was a tacit quid pro quo for Anthony - Jung's promotion to SDG.
D . Case No. WA-CA-40812- The Annual Leave Restriction, the Denial of Annual Leave, and Anthony-Jung's Detail
1. The Respondent Did Not Ban Anthony - Jung from the Building While on Annual Leave
For the reasons in the Judge's decision, we find that the Respondent never implemented a ban on Anthony - Jung's presence in the building while on annual leave. The Judge determined that even though his supervisor informed Anthony - Jung on July 21, 1994, that he was to leave the building while on annual leave, the order was rescinded before it had any effect. As noted by the Judge, later that day the supervisor approved two hours of leave for Anthony - Jung to conduct representational activities. Accordingly, the allegation in paragraph 12(a) of the complaint that Respondent violated the Statute by banning Anthony - Jung from the building while on annual leave is dismissed.
2. The Respondent Violated the Statute by Denying Anthony - Jung's Request for Annual Leave to Conduct Union-related Business on August 24, 1994.
The record also supports the Judge's conclusion that Respondent violated the Statute when it denied Anthony - Jung's request for annual leave to conduct union business. Before the Judge and on exceptions, the Respondent denies that Anthony - Jung ever requested leave that day.
The Judge credited Anthony - Jung's account of the events of August 24. Anthony - Jung testified that his supervisor refused to accept his Standard Form 71 (request for leave). Anthony - Jung further testified that he went to his second-level supervisor, who indicated that he would talk to the supervisor and see that the leave was approved. Anthony - Jung was subsequently advised by his supervisor that the leave request was disapproved because the Chief of the R &T Staff had decided to disapprove he request.
Respondent's witnesses contest Anthony - Jung's account. His supervisor denied ever receiving a leave request, and the R&T;Staff Chief denied any conversation about annual leave for Anthony - Jung and further testified that he was away from the office on August 24.
We concur with the Judge's determination to credit Anthony - Jung's testimony over that of the Respondent's witnesses. As the Judge points out, Anthony - Jung's testimony is consistent with other evidence, and, to a lesser degree, his supervisor's is not. In the former regard, Anthony - Jung's testimony that he submitted a leave request on August 24 is corroborated by his August 25 leave request placed in evidence by the Respondent. That leave request (Respondent Exhibit 30) refers to an August 24 leave request, noting: "This is not in lieu of request made on 8/24/94." 21 In the latter regard, the supervisor's credibility is undercut by the inconsistency between his testimony that he had never denied one of Anthony - Jung's leave requests, and the documented denial on August 8 of one of Anthony - Jung's requests.
Further, the Judge reasonably drew an adverse inference from the Respondent's failure to call Anthony - Jung's second level supervisor to testify. An adverse inference may be drawn against a party for failure to call a witness reasonably assumed to be favorably disposed to that party. John W. Strong, et al., McCormick on Evidence, 184 (4th ed. 1992) (McCormick). The second level supervisor, a management official of Respondent, would appear to be so favorably disposed.
The Respondent has argued that the second level supervisor's testimony would be "duplicative" of that of the first level supervisor and that of the R&T Staff Chief. An adverse inference such as the Judge drew is not appropriate where merely cumulative testimony is involved. See United States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir. 1981) (Ariza-Ibarra); McCormick, supra, at 185-86. However, the second level supervisor's testimony would not necessarily have been duplicative. Presumably, he could have been expected to testify as to his specific role, or lack thereof, in the events of August 24, a matter about which neither of the other witnesses had first-hand knowledge. 22
For these reasons, we find that by denying Anthony - Jung annual leave to conduct union business, the Respondent discriminated against Anthony - Jung in violation of section 7116(a)(2) and (4) of the Statute and interfered with the exercise of protected rights in violation of section 7116(a)(1).
3. The Respondent Violated the Statute by Detailing Anthony - Jung Out of the Computer Room and Applying Other Restrictions on His Activities
We find, but for reasons different than those relied upon by the Judge, that by detailing Anthony - Jung away from the computer room where he had been assigned, and by prohibiting him from contacting employees in the Distribution Branch, the Respondent violated section 7116(a)(1), (2) and (4) of the Statute. 23
a. Prima Facie Case under Letterkenny
We agree with the Judge that the General Counsel has established a prima facie case of discrimination. Among other things, the August 24 detail occurred against the backdrop of events chronicled at length above. Further, the R&T Staff Chief testified that one of the reasons for Anthony - Jung's detail was Anthony - Jung's history of filing ULP charges, some of which the Staff Chief considered false. Finally, the Judge cited "the predictable effect of the latest actions on [Anthony - Jung's] ability to use his nonworking time to conduct union business." Judge's Decision at 35.
b. The Respondent's Rebuttal under Letterkenny
Although the Respondent contends that it had a legitimate business-related justification for Anthony - Jung's detail, we find that the proffered justification cannot account for the Respondent's actions. The Respondent's principal contention is that the detail was a legitimate response to the report of OPM's background investigation. However, the Respondent points to nothing in the record to contradict the Judge's finding that OPM's investigation did not disclose anything that the Respondent was not already aware of as a result of its pre-promotion discussions with Anthony - Jung. On the basis of those discussions. Respondent had approved Anthony - Jung's entry into his position in SDG.
Nor do the Respondent's other asserted concerns about Anthony - Jung's trustworthiness justify the detail. First, the August 23 memorandum detailing Anthony - Jung refers only to "suitability issues," an apparent reference to the OPM report. There was no reference to other matters the R&T Staff Chief referred to in his testimony, such as Anthony - Jung's unauthorized possession of agency documents. Further, the Respondent offered no explanation as to why it chose this particular time to act on its concerns about Anthony - Jung's integrity, especially when a July 13 meeting of the Respondent's managers had not reached any conclusions on that subject. Finally, the record does not reflect that the Respondent took any actions after the detail became effective to investigate further these aspects of its concerns.
We conclude that a preponderance of the evidence does not support the Respondent's claims that it had a legitimate justification for Anthony - Jung's original 30-day detail. Having found that Anthony - Jung's protected activity was a motivating factor for the detail, we conclude that Respondent's asserted reasons were pretextual. Accordingly, we find that the detail of Anthony - Jung violated section 7116(a)(1), (2), and (4) of the Statute. 24
Finally, irrespective of the need to detail Anthony - Jung for suitability reasons, the Respondent offers no independent justification for specifically prohibiting Anthony - Jung from contacting employees in the Distribution Branch. Those employees were the bargaining unit employees for which Anthony - Jung had performed representational activities. Accordingly, we find that this restriction also discriminated against Anthony - Jung and interfered with his exercise of rights protected by the Statute in violation of sections 7116(a)(1), (2), and (4) of the Statute.
E . The Remedy
We adopt the Judge's recommended remedy, modified only to the extent necessary to conform with our conclusions above. The Respondent is ordered to cease and desist from its unlawful acts and to post a notice at its Riverdale, Maryland facility signed by the Assistant Administrator for the National Ocean Service. We also adopt the Judge's "[nontraditional] language in the notice to reflect the finding of past violations and further assure employees that, despite this history, the Agency recognizes their statutory rights." Judge's Decision at 45. Finally, the Respondent is ordered to rescind the June 22 reprimand issued to Anthony - Jung, restore his flexible lunch hour and any annual leave he used to conduct union business as a result of unlawful restrictions on his lunch and break time, and offer him reinstatement to his former work assignment and location in SDG.
The General Counsel has excepted to the Judge's determination not to order discipline for agency supervisors or to expand the posting requirements. The Respondent has excepted to the restoration of annual leave and Anthony - Jung's reinstatement to his prior position. For the reasons below, we reject the parties' exceptions to the Judge's recommended remedial order.
1. The Judge's Recommended Order Is Sufficient to Remedy the Respondent's Unlawful Conduct
a. Remedial Principles
The Authority has formulated principles to guide it in determining appropriate remedies in ULP cases. Remedies for ULPs should, "like those under the [National Labor Relations Act], be 'designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-45 (1990) (Safford) (quoting Local 60, United Brotherhood of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J., concurring)). Remedies must also "effectuate the policies of the Statute." Id. at 445. Remedies may not, however, be punitive. F.E. Warren, 52 FLRA at 160.
"The Authority has developed several 'traditional' remedies" that meet these criteria. Id. at 161. Most common is the "cease-and-desist order accompanied by the posting of a notice to employees, which are provided in virtually all cases where a violation is found." Id. Also among the "traditional" remedies are those that require specific action such as "the grant of back pay," id., or, in discrimination cases like the instant case, a "make whole" remedy. See, e.g., Grissom, 51 FLRA at 13 ("The Authority will order a make-whole remedy where there is discrimination in connection with conditions of employment based on unlawful consideration of protected union activity...").
The fundamental consideration in formulating remedies is whether the traditional remedy will "adequately redress the wrong incurred by the unfair labor practice." Safford, 35 FLRA at 444. As part of this consideration, the Authority examines the requested "nontraditional" remedy and analyzes "whether the remedy is reasonably necessary and would be effective to 'recreate the conditions and relationships' with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct." F.E. Warren, 52 FLRA at 161 (quoting Safford, 35 FLRA at 444-45). This analysis is done under the assumption that there "exist no legal or public policy objections to a proposed, nontraditional remedy." 52 FLRA at 161. Because the questions under this approach are "essentially factual," the Authority evaluates them "by considering the record evidence, arguments to the Judge, and any exceptions to the Judge's decision." DVA, 52 FLRA at 186. Also, "[a]s with other factual questions, the General Counsel bears the burden of persuasion, and the Judge is responsible for initially determining whether the remedy is warranted." F.E. Warren, 52 FLRA at 161.
b. There Is No Need to Discipline the Respondent's Supervisors
The General Counsel has requested that the Authority issue an order that goes beyond the traditional remedies. First, the General Counsel requests that Respondent's officials, specifically Anthony - Jung's supervisor, the Distribution Branch Chief and the R&T Staff Chief, be disciplined. We agree with the Judge that the General Counsel has not established the need for disciplining the supervisors. As the Judge found, restoration of the status quo ante was sufficient because the ULPs were directed at one individual and were not widespread, the supervisors were not defiant of prior Authority orders, and the violations were not flagrant. Moreover, the factual circumstances of this case do not establish a need for that remedy.
We note that the Respondent contends that the Authority is prohibited, as a matter of law, from ordering the discipline of agency officials. Because we find that such a remedy would not be warranted in the circumstances of this case, we need not reach that question here. 25
c. The Judge's Recommended Posting Requirements Are Sufficient
The General Counsel also contends that the notice to employees should be signed by the Secretary of Commerce, the notice should be posted throughout NOAA, and the notice should be read to employees by a high ranking official. We find no reason to impose these nontraditional remedies.
First, the Judge's determination that the Assistant Administrator for the National Ocean Service should sign the notice accords with Authority practice. As the Judge found, the ULPs were limited to the National Ocean Service and it has not been shown that they reflect a broader departmental policy. The Authority "typically directs the posting of a notice signed by the highest official of the activity responsible for the violation." U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA 312, 322 (1997). Similarly, because the violations occurred only at the Riverdale facility, limiting the posting to that facility is appropriate.
Further, the General Counsel provides no substantial reasons for granting its request that the notice be read to employees. The General Counsel states only that "such a remedy is clearly within the purview of the Authority to grant ... and [the General Counsel] would welcome this particular remedy in this case." Exceptions at 12.
We do adopt certain nontraditional language in the posting as recommended by the Judge, specifically, the posting's reference to prior violations of the Statute. We believe that this language serves to put both employees and the Respondent on notice of the serious nature of the Respondent's unlawful conduct.
2. The Issues Raised by Respondent Are Matters Appropriate for Compliance Proceedings
The Respondent contends that restoring annual leave to Anthony - Jung is an inappropriate remedy because there is no evidence that Anthony - Jung was required to use annual leave to perform union business. It also argues that an offer of reinstatement is unnecessary and moot because Anthony - Jung has been reassigned, at his request, to another location.
Restoration of leave and reinstatement to a vacated position are appropriate remedies where leave was used and the position was vacated as a result of the agency's unlawful conduct. In both instances here, the Respondent contends that the remedies are inappropriate, citing factual claims that go beyond the record in this case. This contention does not render the remedy inappropriate, but instead suggests that these factual details would be better considered during compliance proceedings. See Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 15 FLRA 867, 868 (1984) (details of remedy ordering reimbursement for any loss of overtime earnings "are left to the compliance procedures of this case").
In this case, if Anthony - Jung was required to use annual leave to perform union-related activity that he would have been able to perform during the flexible lunch period that he was illegally denied, then restoration of that leave is appropriate. Whether such is the case can be ascertained in compliance proceedings. 26
Concerning reinstatement to his former position, as of the conclusion of the hearing Anthony - Jung was still on the detail subsequently found to be illegal. The Judge's recommended remedy of reinstatement to his former position was predicated on that fact. On exceptions, Respondent asserts that Anthony - Jung has been subsequently reassigned, at his request, to ACD's facility in Washington, D.C., and that reinstatement to the position in Riverdale is unnecessary. Nonetheless, an offer of reinstatement to the position Anthony - Jung held prior to the ULPs is an appropriate remedy because it would "recreate the conditions and relationships that would have been had there been no [ULP]." Safford, 35 FLRA at 444-45. Whether subsequent events have rendered this particular remedy superfluous is best determined through compliance proceedings. For example, if Anthony - Jung has no desire to return to his previous position, he may make that known to the Authority's compliance officials.
V . Order
Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Riverdale, Maryland shall:
1. Cease and desist from:
(a) Discriminating against employees to discourage union membership, or because they have filed a complaint, affidavit, or petition, or given information or testimony under the Federal Service Labor - Management Relations Statute, by reprimanding them, by restricting the flexibility of their lunch hour, by refusing their requests for annual leave, by prohibiting them from having contact with other employees, and by detailing and restricting them from certain locations.
(b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their 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 Federal Service Labor - Management Relations Statute:
(a) Rescind the June 22, 1994, reprimand of Brian Anthony - Jung.
(b) Restore Brian Anthony - Jung's flexible lunch hour and any annual leave he used to conduct union business as a result of unlawful restrictions on his lunch time.
(c) Offer to Brian Anthony - Jung reinstatement to his former work assignment and location.
(d) Post at its facility in Riverdale, Maryland, 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 Assistant Administrator for the National Ocean Service, 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 insure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that all remaining allegations of the complaints in these cases are dismissed.
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
The Federal Labor Relations Authority has found that the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C. violated the Federal Service Labor - Management Relations Statute and has done so in the past, and has ordered us to post and abide by this notice.
WE WILL NOT discriminate against employees to discourage union membership, or because they have filed a complaint, affidavit, or petition, or given information or testimony under the Federal Service Labor - Management Relations Statute, by reprimanding them, by restricting the flexibility of their lunch hour, by refusing their requests for annual leave, by prohibiting them from having contact with other employees, or by reassigning, relocating, and restricting them from certain locations.
WE WILL NOT in any other 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 June 22, 1994, reprimand of Brian Anthony - Jung.
WE WILL restore Brian Anthony - Jung's flexible lunch hour and any annual leave he used to conduct union business as a result of unlawful restrictions on his lunch and break time.
WE WILL offer to Brian Anthony - Jung reinstatement to his former work assignment and location.
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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.
Opinion of Member Wasserman, concurring in part and dissenting in part.
I write separately for two reasons. First, although I agree with my colleagues in their description of our review of credibility determinations, supra at pages 20-21, I want to add a note of caution. In the private sector, if the factual findings are based on the demeanor of a witness, the ALJ's decision will not be overruled "unless a 'clear preponderance of all the relevant evidence convinces [the Board] that the [ALJ's] resolution was incorrect.'" Vance v. NLRB, 71 F.3d 486, 491-92 (4th Cir. 1995) (citing Standard Dry Wall Products, Inc., 91 NLRB 544, 545 (1950)). In cases where credibility determinations are based on other factors, "the Board may properly give the credibility findings less weight than would be required in a case where those findings were explicitly based on demeanor." NLRB v. Interboro Contractors, Inc., 388 F.2d 495, 501 (2d Cir. 1967). However, as noted in Ewing v. NLRB, 732 F.2d 1117, 1122 (2d Cir. 1984), the Board must be cautious in not making "an overly fine and ... untenable distinction between credibility determinations based upon demeanor evidence and those 'premised on an analysis of the facts and the logical inferences to be drawn therefrom.'"
In looking at non-demeanor credibility determinations, I think we should exercise the restraint suggested by the second circuit in Ewing v. NLRB. The distinction between credibility findings based upon demeanor, as opposed to other factors, may be difficult to ascertain. I would not expect the Authority's ALJs to explain the basis of their credibility determinations in each case where testimony is credited, and instead, would assume that demeanor played some part in the credibility assessment in the absence of a statement to the contrary. To that extent, I would differ in approach to that which was stated in footnote 12, supra. I do not want to encourage attempts to relitigate cases through needless exceptions to the way in which the Judge weighed the evidence in reaching a determination regarding the credibility of witnesses. Contrary to the view of my colleagues, I believe that additional detail by the judges regarding the reasons for crediting testimony of one witness over another will invite a critique and exceptions heretofore not entertained by the Authority.
Second, I dissent with respect to Consolidated Case Nos. WA-CA-40661/40662/40668 regarding the "Union shop" statement. While a judge's credibility determination is deserving of special deference, evaluation of his or her findings of fact and other record evidence for purposes of evaluating whether an unfair labor practice has occurred does not require first hand observation of the witnesses. As I look at the Judge's interpretation of the "union shop" statement, I disagree with him and my colleagues regarding the ambiguity of that statement in light of the entire context. While it could be interpreted to be merely a statement of fact, the general anti-union environment makes it clear to me that the statement was intended to coerce. The supervisor who made the statement was the person who unlawfully reprimanded Anthony - Jung, and the totality of his behavior should be considered. Thus, although the statement standing alone might not rise to the level of an unfair labor practice, within the totality of the circumstances presented by these cases, I would find that the "union shop" statement constituted interference, restraint and coercion.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424 - 0001
U.S. DEPARTMENT OF COMMERCE,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, NATIONAL OCEAN
SERVICE, COAST AND GEODETIC
SURVEY AERONAUTICAL CHARTING
DIVISION, WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2640, AFL-CIO
Case Nos. WA-CA-40661
Frances C. Silva, Esquire
Bruce I. Waxman, Esquire
For the Respondent
Arnold A. Hammer, Esquire
Stephen G. DeNigris, Esquire
Laurence M. Evans, Esquire
For the General Counsel
Before: JESSE ETELSON
Administrative Law Judge
Statement of the Case
These consolidated-cases involve a number of allegations that the Respondent ("NOAA" or "the Agency") violated provisions of the Federal Service Labor - Management Relations Statute (the Statute). Included in the complaints in these cases are allegations that NOAA violated sections 7116(a)(1), (2), (4), and (5) of the Statute. Some of the cases were consolidated before hearing and the others were consolidated at the hearing for the purpose of making a single record. At the request of Counsel for the General Counsel, I have kept all of the cases consolidated for the purpose of issuing a single decision. Counsel for the General Counsel and for NOAA filed post-hearing briefs, in traditional form and on diskettes, which were useful in the preparation of this decision. 27
The events underlying all of these cases occurred at the Aeronautical Charting Division (ACD) of Coast and Geodetic Survey, a "line office" within National Ocean Service, an activity within NOAA, a primary national subdivision of the Department of Commerce. The Charging Party (the Union) is the exclusive representative of some of ACD's employees in Riverdale, Maryland, and Washington, D.C. Other employees at the Riverdale facility were unrepresented at the time of these events. The union activities of Brian Anthony - Jung (Anthony), who plays a central role in most of these cases, will be described first under Case No. WA-CA-40701 and, as later activities of his become relevant, in the cases that follow. 28
In this case, it is alleged that Foreman Melissa Hartman implemented a Total Quality Management (TQM) program in the Photographic Unit, part of the Reproduction Branch of ACD, without providing the Union with notice and an opportunity to negotiate on the decision to implement the program. NOAA admits that it implemented the program, but denies, most notably, the allegation that it implemented "the change" (referring to the implementation of the program) without giving the Union notice and opportunity to bargain. NOAA argues, among other things, that implementation had no more than de minimis impact on employees' conditions of employment.
General Counsel's Case
Norman Rhodes is the President of AFGE Local 2640. The unit represented by the Union consists of the Reproduction Branch located in Washington, D.C. and the Distribution Branch in Riverdale, Maryland. Rhodes works in the photographic unit in the Reproduction Branch, in a bargaining unit position. During his tenure as President of the Union, Rhodes has negotiated collective bargaining agreements, processed grievances and generally represented unit employees in labor relations matters. He characterized the relations between the Union and management for the year and a half preceding the hearing as "very poor."
Melissa Hartman became foreman of the photographic unit on March 7, 1994. One of Hartman's first priorities upon assuming her new job was to implement TQM in her shop. She mentioned TQM to Rhodes but never met formally with him in his capacity as Union president. Rhodes never saw the draft of the TQM implementation plan that Hartman said she left with him on March 29. Because Hartman did mention the concept of TQM to Rhodes, however, he discussed the topic with the Union Executive Board. Rhodes told Hartman that he had no problem with the concept of TQM, and that, in fact, he thought it could be a useful tool if implemented and managed properly. However, he consistently expressed his concern that implementation should be broader than only in Hartman's shop.
Rhodes testified that the Union's position about TQM is based on the fact that the product that the photographic unit produces begins in the Aeronautical Charting Division in Silver Spring. Unless TQM included the Silver Spring employees, the product would reach the photographic unit in a state not subject to TQM, begun by employees who were unaware of the needs of the photographic unit. The Union felt that for TQM to be effective. It had to apply to the product throughout the entire production process.
The Union's practice is to discuss any proposals or items that affect the employees it represents among members of its Executive Board, to respond to all proposals, even those with which the Union agreed. Rhodes met on April 9, 1994, with the Executive Board, consisting of himself as President, Brian Anthony - Jung (Anthony), Vice President, and Chief Shop Steward Claude Travis. Rhodes expressed his concern that Hartman was talking about implementing TQM only within the photographic unit. They agreed that the Union would agree to TQM, but that they would want to negotiate its implementation beyond the one unit level, meaning either at the Branch or Division level. They agreed that, as "there was a lot of talk going around," they would wait to be presented with specific proposals.
On April 18, Rhodes received Hartman's memo explaining TQM (G.C. Exh. 2) in his mail box at work. Rhodes again called the members of the Executive Board to let them know he had received the document, describing how TQM was supposed to work in the photographic unit alone. They "determined, the same as before, that we wanted to negotiate before implementation of the TQM." Rhodes instructed Anthony to draft a letter for Rhodes' signature to Carol Beaver, head of the Aeronautical Charting Division, objecting to the unilateral implementation of TQM.
The next day, April 19, Anthony called Robert Souders, Chief of the Reproduction Branch and told Souders that the Union's position was generally in favor of TQM, but that they did not want it in only the one unit. Souders told Anthony that he was concerned with having to meet with the Union and treat it "as pretty much equal managers." Regarding the Union's position on TQM, Souders said that he was not "up to speed on that subject" and would get back to Anthony.
On April 21, Rhodes and Chief Steward Travis met with Hartman and Palmer Rut ledge, a supervisor in the pro-press unit, in the office of Earnest Shepard, then chief of prepress operations. Rhodes reiterated the Union's position that it did not agree to implementation of TQM at the unit level without negotiations. Nevertheless, Hartman took her draft memo to Souders and obtained his approval.
On the following day, April 22, Hartman conducted a meeting with the employees of the photographic unit. The agenda sheet for the meeting included the following:
-Concurrence by branch chief to implement TQM in the Photo Unit. Effective immediately.
-Return attachments to me by 4/29 to indicate your areas of interest.
After the Union learned of implementation of TQM, on April 18, Rhodes had asked Anthony to prepare a letter to Carol Beaver, Chief of the Aeronautical Division, protesting the unilateral action. That letter, dated April 28, 1994 and signed by Rhodes, stated, in part:
The Employer does not have nor has the Employer ever had the Union's permission to create or inclement TQM anywhere within the bargaining unit. Ms. Beaver, you should know that the Authority's position in case law on TQM is very clear. You must have the Union's prior permission before you can implement or even create TQM, see case the Department of the Navy, Pearl Harbor Ship Yard, Pearl Harbor, Hawaii, 29 FLRA 1236 (1987).
The Respondent did not answer that letter.
(The sequence of events, as presented in the General Counsel's case, is largely undisputed insofar as representatives of management were involved. I shall present here those aspects of NOAA's evidentiary showing that differ materially from the version of General Counsel's witnesses or add potentially significant details not previously covered.)
TQM was not a new concept at the Reproduction Branch. As early as 1991, TQM existed in the Reproduction Branch. It also existed at the Division level. Foreman Hartman was aware of the 1991 TQM initiative in the Reproduction Branch and of the Photo Unit Process Improvement Team, as well as other Agency actions since then. She also was aware, however, that the group leader of the TQM team in the photo unit had passed away a few months before Hartman became foreman. TQM was dormant in the photo unit when she took over. She sought "to breathe some life back" into it.
One of Hartman's first acts was to meet with Mr. Rhodes to establish a working relationship with him as the president of the Union and to share ideas and philosophies, including those on TQM. Rhodes told her that TQM was a very good instrumental tool. Hartman specifically solicited his ideas on TQM. Moreover, Rhodes attended a meeting on March 11, 1994, with all photo unit employees where Hartman discussed her thoughts on TQM.
About two week later, on March 29, Hartman developed a draft of her proposed TQM program and left the draft for Rhodes in his office. The draft indicated on its face that it was a draft. Hartman placed a "yellow sticky" on the draft, dated it, signed it and placed it on Rhodes' desk.
On several occasions after having left the draft for Rhodes, Hartman inquired whether he had any changes to her draft initiative. She had at least four conversation with Rhodes about her draft. On one of those occasions, Rhodes told her that her draft "looked fine, that if anything, maybe he'd have some minor suggestions to make."
Thus, after receiving nothing from Rhodes in writing and after having inquired about any input he might have on her TQM draft on at least four occasions, Hartman asked both her supervisor, Mr. Shepard, and NOAA's Labor Relations Office if she had given the Union sufficient time to respond to her TQM draft. Both Shepard, who had asked Hartman periodically if she had received a response from Rhodes, and NOAA's Labor Relations Office concluded that she had allowed Rhodes sufficient time to respond and present any proposals.
On April 18, Hartman put her draft initiative into its final form by placing the draft on letterhead and adding the names of those who would be given copies. She then placed a copy of the memorandum in each photo unit employee's mailbox.
Mr. Souders testified that he never spoke to Anthony about TQM. Although, as an industrial engineer, he does not accept TQM as a viable concept, he would have remembered had he spoken to a Union official about TQM because, "[w]hile I may have a lack of interest in TQM, I am not disinterested in what the Union tells me."
At the April 21 meeting attended by Hartman, Shepard (not Rutledge, as Rhodes testified) Rhodes, and Travis, Hartman specifically asked Rhodes if he would accept TQM in the photo unit if Branch Chief Souders concurred on the initiative. Rhodes said he would accept TQM at that level. He never indicated that the Union wanted to negotiate over the issue, but stated that, if Hartman's initiative was endorsed at the branch or division level, the Union would accept it.
Hartman left the meeting, went to Souders, and showed him the initiative. He concurred and signed the memorandum. The next day, April 22, Hartman saw Rhodes in the hallway and handed him the TQM memorandum with Mr. Souders' signature. She also told Rhodes there would be a photo unit meeting later that day to discuss TQM and other issues. Hartman posted a notice of the meeting, which she set for 11 a.m. that day, on the bulletin board for all general employee notices.
The meeting started about ten minutes late. Rhodes arrived in the meeting almost ten minutes later. Hartman stopped the meeting to brief Rhodes on what had taken place so far. During the meeting, Rhodes raised several concerns about overtime, performance appraisals, and TQM.
vidence on the Nature of the TQM Implementation
(At the hearing, I expressed concern as to what the witnesses meant when, as they all agreed, Hartman "implemented" TQM. In response, the General Counsel elicited uncontradicted testimony from Hartman on cross examination.)
Hartman explained that she formed evaluation teams, or process evaluation teams, and had asked for areas of interest in an attachment to the memorandum that was distributed on April 18. The teams were to look at new equipment or technology and provide input into the review of equipment and techniques used in the unit, including new materials and equipment under review for possible use in the shop. Unit employees have been directly involved in new material testing and review, and some employees have had the opportunity to go on review trips to look at new equipment. At the time of the hearing, they had not begun to meeting regularly in their teams.
Findings of Fact
For reasons that will appear shortly, I find it unnecessary to resolve any of the disputed issues of fact. I accept the occurrence of those events that undisputedly did occur--that certain documents were issued and certain meetings were held. Whether other conversations occurred, and whether the account of one witness or another is more accurate, I find to be irrelevant for the disposition of this case. I rely principally on the undisputed testimony of Hartman as to what actually occurred when she "implemented" TQM.
Section 7116(a)(5) of the Statute makes it an unfair labor practice for an agency to refuse to bargain with an exclusive representative of its employees. An agency must provide the exclusive representative with notice of proposed changes in negotiable conditions of employment affecting unit employees and an opportunity to bargain over those aspects of the changes that are negotiable. Even if the subject matter of the change is outside the duty to bargain pursuant to section 7106 (a) of the Statute, the agency must bargain about the impact and implementation of a change in conditions of employment that has more than a de minimis impact on unit employees. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Hartford District Office, Hartford, Connecticut, 41 FLRA 1309, 1317 (1991). If an agency seeks to change a matter over which the union is not required to bargain, even giving the union an opportunity to bargain is insufficient; the agency must secure the union's concurrence. Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, 29 FLRA 1236, 1257 (1987) (Pearl Harbor).
Counsel for the General Counsel contends that NOAA failed to meet its bargaining obligation before implementing its TQM program. Counsel asserts, moreover, based on Pearl Harbor, that the TQM program was a permissive subject, requiring not only negotiations but the Union's consent. 29 NOAA contends that it did afford the Union notice and opportunity to bargain, but that the Union President either agreed to the TQM program on a condition that NOAA met--approval at a higher level--or slept on the Union's right to request bargaining. NOAA also argues that implementation of the program was not a change but merely a "revitalization" of an existing program, and that if there were any changes they were de minimis. In the conclusion to its brief, NOAA reformulates that argument to contend that there were no changes in terms and conditions that required bargaining. That is the key to this case.
Section 7106(a) of the Statute gives an agency the right to perform certain functions without bargaining over the decision to exercise its managerial authority in those enumerated respects, even if such exercise changes employees' conditions of employment. Such exercise of authority is, in the parlance of Authority case law, "nonnegotiable" as to substance. Among the enumerated nonnegotiable decisions is the assignment of employees (section 7106(a)(2)(A)) and of work (section 7106(a)(2)(B)). Section 7106(b) (1), however, makes certain exercises of management authority permissive subjects for bargaining at the election of the agency. Among these managerial decisions are "the technology, methods, and means of performing work [.]" Under existing Authority precedent, however, the nonnegotiability of a matter under subsection (a) makes its status under subsection (b) irrelevant except in circumstances not present here. See District No. 1, Marine Engineers Beneficial Association (AFL - CIO), Panama Canal Area and Panama Canal Commission, 49 FLRA 461, 465 n.3 (1994); Federal Labor Relations Authority, Office of the General Counsel, Memorandum: Referral of a Major Policy Issue for a General Ruling 6-7 (February 28, 1995). 30
In Pearl Harbor on which Counsel for the General Counsel relies here, the Authority found a particular "Quality Circle Program" to be a matter that the agency could not impose on the union, or even compel it to discuss. The Authority adopted Judge Arrigo's factual finding that the quality circles (QCs) were authorized to consider "matters concerning personnel policies or practices or other general conditions of employment [,]" and that they dealt with matters related to employee training, establishing a lunch facility, water fountains, safety, and awards. 29 FLRA at 1257. Judge Arrigo concluded that "by design and practice, the QCs performed the function of dealing with management concerning conditions of employment, the rightful and exclusive role of the collective bargaining representative." Id. at 1528.
Judge Arrigo's (and the Authority's) conclusion that the creation and operation of the QC Program was a permissive subject of bargaining for the Union was based on the rationale of NLRB v. Cabot Carbon Co., 360 U.S. 203 (1960). The Cabot Carbon rationale, as adapted in Pearl Harbor, is that "dealing" with management over matters about which it is "normally the exclusive right of the Union" to represent the employees (29 FLRA at 1528) usurped the Union's function. Cabot Carbon and decisions of the National Labor Relations Board following it were concerned with the provision of the National Labor Relations Act (NLRA), section 8(a)(2), making it an unfair labor practice for an employer to dominate, interfere with, or support a "labor organization." 31
The Statute's definition of "labor organization," (section 7103(a)(4)) is generally similar to the NLRA definition regarding the organization's purpose. It differs in other respects, notably that one element of the definition is that employees not only participate but also pay dues. This is an unlikely feature of an employee participation program such as TQM, thereby presumably avoiding a violation of section 7116(a)(3), the Statute's counterpart to section 8(a)(2) of the NLRA. Nevertheless the policy behind Cabot Carbon informs the Authority's conclusion in Pearl Harbor that an exclusive representative should not be required to bargain over the establishment of a program that would infringe on its exclusive status by performing its statutory functions.
The Labor Board has been called upon more recently to examine various forms of employee participation programs in light of the Cabot Carbon doctrine. In a highly publicized decision in which the Board found that certain "Action committees" were "labor organizations," it also noted that "an organization whose purpose is limited to performing essentially a managerial or adjudicative function is not a labor organization under Section 2(5)." Electromation, Inc., 309 NLRB 990, 995 (1992).
Not long after Electromation, the Board considered the question of what activities of an employee committee, irrespective of the matters it addressed, constituted "dealing with" management. At issue was whether, in a situation like the instant case, where there is an exclusive representative, establishment of the employee committee constituted an unlawful bypass of the union and a consequent violation of the duty to bargain. A majority of the participating Board members held that "brainstorming" was not "dealing, " if its purpose was simply to develop "a whole host of ideas" rather than to make proposals to management. Nor is the sharing of information with the employer "dealing," the majority decided, even if management participates by having members on the committee, as long as their powers on the committee do not include the rejection of proposals. E.I. du Pont de Nemours & Co., 311 NLRB 893, 894-95 (1993). 32
Like the QCs in Pearl Harbor, the TQM teams in the instant case are designed to address matters that could affect conditions of employment. However, the "permissive subject" finding in Pearl Harbor is based on the QCs having a purpose of "dealing with" management concerning negotiable subjects.
Putting aside the question of whether the TQM program was new or merely revitalized, everyone agree that Hartman "implemented" a TQM program in her unit. However, "TQM" and "implement" are terms of art. It is essential that we know what we are talking about when we talk about implementing a TQM program and this TQM program in particular.
In a report to the President, the Merit Systems Protection Board described TQM, "as applied in Federal agencies [, as] a voluntary Governmentwide initiative to promote quality throughout the Civil Service. Some of its key features are its emphasis on customer needs, teamwork, long-term planning, and continuous improvement of every aspect of how work is done." U.S. Merit Systems Protection Board, Federal Blue - Collar Employees: A Workforce in Transition 35 (1992). The report quotes another study defining TQM as "involving everyone in an organization in controlling and continuously improving how work is done, in order to meet customer expectations of quality." Id., quoting David K. Carr and Ian D. Littman, Excellence in Government: Total Quality Management in the 1990s 3 (no publication date given). TQM might, however, also mean other things to other people. What is directly pertinent is the substance and the implementation of the TQM program that gave rise to this case.
The TQM program that Hartman implemented here involved the assignment of employees to teams to develop and share information about the technology, material, and "process" of the unit's operation, including consideration of new technology and equipment and alternative materials. This is classic section 7106(b)(1) subject matter. However, even if these were negotiable subjects, there is no basis for finding a bargaining
The alleged violation here is a unilateral change in a negotiable condition of employment. That is the conduct Authority case law refers to when it speaks of "implementing" before bargaining. See, e.g., Space Systems Division, Los Angeles Air Force Base, Los Angeles, California, 45 FLRA 899, 903-05 (1992). The only change in conditions of employment that occurred here, if any, was that employees were assigned to the teams. There is no evidence of any changes in other conditions of employment resulting from the consideration that the TQM teams gave to them. Moreover, there is no evidence of "dealing with" management. The record is silent about any presentation of ideas to management, in the form of proposals or otherwise, and does not even show how management participates, if at all, in the teams' work.
The Authority has considered the negotiability of assignments of employees to TQM teams. In American Federation of Government Employees, Local 2612 and U.S. Department of the Air Force, Griffiss Air Force Base, Rome Laboratory, Rome, New York, 46 FLRA 578 (1992) it held that a proposal to prohibit mandatory employee assignments to TQM teams was nonnegotiable as to substance and impact. The Authority also held that the proposal was not an appropriate arrangement within section 7106 (b) (3) of the Statute because it interfered excessively with management's right to assign work. Id. at 581.
Shortly after Griffiss, the Authority had before it in U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 47 FLRA 512 (1993) (DCAA), a similar proposal to insure that participation in TQM was voluntary. The Authority reaffirmed that such a proposed provision is nonnegotiable as to substance and does not constitute a negotiable appropriate arrangement. It also held that the subject of the proposed provision was not a permissibly negotiable matter under section 7106(b)(1) but involved a work assignment within the meaning of section 7106(a)(2)(B). Further, the Authority rejected the union's contention that the provision was a negotiable procedure, finding that such a restriction would directly interfere with the agency's right to assign work. Id. at 519-21. See also American Federation of Government Employees, AFL - CIO, Local 1395 and Social Security Administration, Great Lakes Program Center, Chicago, Illinois, 14 FLRA 408, 409-10 (1984) (proposal for joint labor-management committee to develop performance expectations was nonnegotiable under section 7106(a) because union participation directly interferes with management right to direct employees and assign work) 33
I therefore conclude that NOAA's implementation of this TQM program was not the kind of action the Authority finds unlawful when it determines that an agency has unilaterally "implemented a change in conditions of employment. I find no refusal or failure to provide the Union with the opportunity to bargain over negotiable changes because no negotiable changes were made, were imminent, or were even specifically contemplated. If and when such changes are contemplated, bargaining may be required consistent with the Statute. See DCAA at 522. Accordingly, I recommend that the Authority dismiss the complaint in Case No. WA-CA-40665.
CASE NO. WA-CA-40701
In this case it is alleged that a reprimand given to Brian Anthony - Jung (Anthony) on June 22, 1994, was a form of discrimination, motivated by Anthony's protected activities, including the filing of unfair labor practice charges and a representation petition. The complaint alleges violations of sections 7116 (a)(1),(2), and (4) of the Statute.
Findings of Fact
Union President Rhodes, a bargaining unit employee, works in the Reproduction Branch of ACD in Washington, D.C. Riverdale, Maryland, is a few miles outside of Washington. Until 1993, the Union had no active presence at Riverdale in the form of a Union official who was stationed there. This changed in February 1993, when Anthony, who had been employed there, in a unit position in the Distribution Branch, since 1991, became the Union's vice-president.
Anthony took on an active role. He filed unfair labor practice charges and grievances and negotiated the settlement of charges. In February 1994 Anthony testified, at an unfair labor practice hearing, that the chief and deputy chief of the Distribution Branch made coercive statements to him with respect to his union activities, and that his supervisor told him she was giving him a lower rating on his performance progress review because his union activities were keeping him away from his work and that "the people upstairs" had problems with him because of the negotiations, so that she had no choice but to rate him poorly. 34
In March 1994 Anthony became a computer specialist in the Systems Development Group (SDG) within the Requirements & Technology Staff of ACD, an organizational unit that was outside the bargaining unit. While it is not clear exactly how extensive Anthony's union activities had been up to that point, they had been sufficiently noted by management that his new supervisor, Robert Douglas, had been instructed, on the first day that Anthony reported in, to make sure Anthony understood that no union activities were to be conducted during business hours (Tr. 714).
Douglas had a somewhat vague impression that the Union had negotiated a scheduled 15-minute break in the morning and the afternoon for bargaining unit employees (Tr. 707). 35 On March 16, nine days after Anthony began in SDG, Douglas asked Fred Anderson, new Chief of the Distribution Branch, to sit in on a meeting to which he called Anthony. 36 Douglas directed Anthony to discontinue any union activities during his working hours and said that union activities were permitted before and after work and during lunch. The next day, March 17, Anthony filed a representation petition for a unit of SDG employees.
On May 17, Douglas issued a written warning to Anthony for disrupting operations in the Distribution Branch by interrupting Anderson at work on three occasions without having scheduled an appointment. On May 27, during his lunch hour, Anthony delivered a letter to Andersen's office, complaining about an alleged failure to comply properly with a May 6 order of the Authority, involving the Distribution Branch, in an earlier unfair labor practice case.
That afternoon, Anderson discovered Anthony talking to "Lilly" Musolino, a Distribution Branch employee, at her desk. Anderson had just left a meeting with Union President Rhodes, on a union-management matter, and Rhodes was now also in the vicinity. Anderson asked Musolino whether she was on a break. Musolino answered with an ambiguous shoulder-shrug, and Anderson asked her to help him find a letter on the desk of a supervisor who was not there at the time. Anderson and Musolino left and returned shortly. Anderson told Anthony that he was interrupting work and returned to his office.
An undisclosed but apparently short time later, Anderson went back to where the previous conversation occurred and saw Anthony and Rhodes near the door to a salesroom nearby. While the witnesses differ sharply as to what occurred next, all that I find relevant is that Anderson believed he heard Rhodes talking about having to renegotiate the schedule for salesroom hours, the subject of the letter Anthony had delivered to Anderson a few hours earlier.
Anderson returned to his office and called Musolino in. His testimony is that he asked her again whether she had been on her break when she was talking with Anthony. Musolino told him that she still didn't know, but that Anthony had walked up to her when she was at the soda machine and that they had gone back to her desk and started talking. Anderson then asked Musolino whether she had had a break that afternoon. She told him that she had not. Anderson told Musolino that he had no problem with anything she did and that that was the end of it.
On May 31, the following working day, Anderson wrote a memorandum to Douglas, consisting of a report of Anthony's conducting union business in front of the sales room (Tr. 608, 640-41). On June 22, Douglas issued an official reprimand to Anthony. In pertinent part, it states:
On May 27, 1994, at approximately 3:20 PM, you were observed and heard by Mr. Anderson conducting union business with the President, AFGE Local 2640, Norman Rhodes.
You were on clear notice that you are not to engage in union business during working hours. I find your continual union activities during your tour of duty to be a flagrant disregard of my instructions to you on this matter. I note that you were issued a memorandum of warning dated May 17, 1994, which warned you to refrain from activities that are disruptive to operations of the Distribution Branch. Your failure to follow my instructions negatively impacts on operations and is disruptive to normal behavior. I will not tolerate future misconduct of this nature.
The parties agree that the basic framework for analysis of this is to be found in Letterkenny Army Depot, 35 FLRA 113 (1990), where, at 118, the Authority articulated the requirements for making a prima facie showing in all cases of allege discrimination. Thus, 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....
This, however, is only an outline, not a complete blueprint, of a prima facie case. The complexities of the instant case require more detailed consideration of the kind of showing necessary to establish part (2) of the Letterkenny formulation. Since the issue is motivation, there must be some evidence to connect the protected activity and the agency's treatment. Ordinarily that linkage is shown by evidence that the agency knew of the protected activity and that there was antiunion animus. Veterans Administration Medical Center, Bath, New York and Veterans Administration, Washington, D.C., 12 FLRA 552, 577 (1983).
The evidence of each element of discriminatory motivation may be circumstantial, the actual motive for the action taken being a state of mind, something rarely susceptible to direct proof. Id.; Abiline Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 338-39 (5th Cir. 1980); NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir. 1978). An inference of antagonism toward a particular exercise of protected activity may be drawn, in appropriate circumstances, even without direct evidence of animus. See Sawyer of Napa, 300 NLRB 131, 152 n.46 (1990); cf. United States Forces Korea/Eighth United States Army, 11 FLRA 434, 436 (1983) (alleged discriminates was "an active and aggressive union leader who could have been a thorn in management's side"). Thus, an action taken against a leading union advocate whose services were previously valued by the employer may be sufficient evidence in itself of antiunion animus. NLRB v. Ri - Del Tool Mfg. Co., 486 F.2d 1406 (mem.), 84 LRRM 2630, 2631 (7th Cir. 1973); cf. 22nd Combat Support Group (SAC), March Air Force Base, California, 27 FLRA 279 (1987) (discriminatory motivation found where only direct evidence of agency official's reaction to employee's filing of a grievance was his statement that he had been straightforward with employee but that employee had brought the union into the dispute). 37 And where animus is an element of the proof, the relevant inquiry is the acting official's attitude toward the protected activity most closely related to the time the action was taken, whether or not animus was engendered by the employee's previous protected activity. See Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 43 FLRA 1414, 1428-29 (1992). 38
Under Letterkenny, the agency can rebut the General Counsel's prima facie case by demonstrating, 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 even in the absence of protected activity.
There is, in addition, an important aspect to the instant case that requires a weighing process beyond, but perhaps to be exercised in conjunction with, the Letterkenny formulation and its normal components. This special consideration arises from the fact that the reprimand was given expressly as discipline for Anthony's suspected union activities. The suspected union-related conversation, if it occurred, occurred during time not officially excluded from the working day. Nor was Anthony authorized to use official time for union activities. An agency is free to prohibit activities not connected with their work during working time. Peyton Picking Co., 49 NLRB 828, 843 (1943). 39 However, I conclude, in agreement with the Labor Board, that such a prohibition may not single out union activities, and that disciplining an employee for engaging in union activities in those circumstances constitutes unlawful discrimination. Premier Maintenance, 282 NLRB 10, 16 (1986); Montgomery Ward, 269 NLRB 598, 599 (1984). The factual issue to be determined in such cases is whether the purpose of the discipline was to promote workplace efficiency or to cool the employee's union advocacy. See Restaurant Corp. of America v. NLRB, 827 F.2d 799 (D.C. Cir. 1987) (Restaurant Corp.); Brigadier Industries, 271 NLRB 656 (1984), review denied sub nom. Clothing & Textile Workers v. NLRB, 776 F.2d 365 (D.C. Cir. 1985).
It remains to complete the analytical framework by deciding how the Letterkenny formulation can be harmonized with the principle that discipline for engaging in union activities even during working time is unlawful if such activities are singled out. I conclude that, as in any other case of alleged discrimination, the General Counsel must establish a prima facie case based on an employee's protected activity. 40 At that point, if the agency relies on the union activities conducted during working time as its legitimate justification, it would normally be required to show, by a preponderance of the evidence (either direct or circumstantial) at least that its action against the employee was consistent with its treatment of employee activities of comparable disruptive effect. 41 Contrary indications would be that the union activities in question were monitored more vigorously or treated more harshly than other non-work-related activities during working time. See Restaurant Corp. at 806-09; Imco Container Co., 208 NLRB 874, 878-79 (1974).
Discussion and Conclusions
Anthony's prominence as an aggressive union official is undisputed. I find it highly significant that, immediately upon his transfer to the SDG, his new supervisor was instructed that Anthony was not to conduct union activities during working hours. Regardless of the legitimacy of this concern, it indicated management's heightened sensitivity to Anthony's union role.
Until then, Anthony's union activities had been at least tolerated, and, as NOAA notes, had not prevented him from receiving a promotion into his SDG position. However, not only did he continue his aggressive monitoring of existing union-management disputes, but he promptly filed a petition to have the Union certified as the exclusive representative of previously unrepresented employees within the Requirements & Technology Staff, of which SDG is a component. 42 The day of the incident that prompted Anderson, on the following working day, to report Anthony's conduct, Anthony had delivered a letter to Anderson complaining about an alleged failure to comply properly with an order in a previous unfair labor practice proceeding. Anderson's report itself involved suspected union activity, albeit during working hours.
This combination of circumstances warrants the inference that Anthony's previous and undisputedly protected activities were at least a motivating factor in Andersen's decision to make a written report to Supervisor Douglas. Douglas, as noted, had been instructed about management's concern over the extent of Anthony's union activities, as soon as Anthony had been assigned to him. Douglas apparently made no independent investigation into Anthony's alleged May 27 misconduct but based his determination of what occurred on Andersen's report. Douglas testified that "other people in the Distribution Branch ... backed up what Mr. Anderson said," but none of the alleged incidents involving the other people he named are even suggested in the reprimand letter as contributing factors. Therefore, (as stated in NOAA's brief) I find that it was Andersen's report that resulted in the reprimand. As Andersen's report was motivated at least in part by Anthony's union activities, including the representation petition he filed, I find that the General Counsel has established a prima facie case that the reprimand was issued in violation of sections 7116(a)(1), (2), and (4) of the Statute.
NOAA contends that the reprimand was a legitimate and relatively mild corrective action in response to a "blatant disregard of supervisory instructions" to refrain from union activities during working hours. Even if it had considered Anthony's protected activity, which it denies, NOAA states that it would have issued this reprimand in its absence.
I find these arguments unavailing. Having concluded that the protected activity was a motivating factor, I must require NOAA to demonstrate a legitimate business justification that eliminates the protected activity as an actual cause of the discipline. See Letterkenny at 118-19. As a preliminary matter, I have no way to evaluate the suggestion that Douglas took "the least harsh corrective action warranted." In order to be equipped to do so I would have to know more about NOAA's personnel policies or to take notice of other applicable rules for discipline of unrepresented employees, the nature of which I have not been made aware.
I am not persuaded that Anderson's reaction to the May 27 incident was a concern for efficiency apart from his belief that Anthony was talking about union business. Anderson observed Anthony briefly during two different conversations over a time span that has not been established. Anthony was undoubtedly away from his work station during this period, and was not on an official break, but he was not subject to any restriction about leaving his work area "to get a cup of coffee or something like that." The expected practice was simply to avoid interrupting someone else who was working. (Tr. 706-08.) The first conversation in which Anderson discovered Anthony was with employee Musolino, who apparently was not on an official break while talking to Anthony. However, when Anderson later questioned Musolino about it, she told him that they had met at the soda machine and had gone back to her desk. Anderson did not testify that he attempted to allocate the responsibility, between Anthony and Musolino, for continuing their meeting in this fashion. In any event, he told Musolino that he had no problem with anything she did. Nor is there any evidence that he included this conversation in his report to Douglas. 43
Instead, it was the second conversation, occurring shortly afterward, involving Rhodes and, at least in Andersen's mind, union business, that gave Anderson sufficient concern to report it. Rhodes was not at work, having just finished a meeting with Anderson on union-management business, and Anderson expressed no concern about Rhodes' return to his worksite. Anderson testified that he reminded Anthony that he had been warned about interrupting branch operations. He also told Rhodes, or both of them, that they were blocking the door to the sales room. Anderson said nothing to Anthony about being away from his work station. He did not ask Anthony whether he was on a break, explaining, when asked at the hearing, that Anthony was not his employee (Tr. 639).
I conclude that Anderson did not act out of a concern that work was being interrupted or being neglected. The absence of evidence on the length of Anthony's self-selected break, or any comparison to other employees' breaks, precludes a finding that it was unusually long. The only other arguable disruption was the alleged blocking of the doorway, which could have been, at most, a trivial matter with only a tenuous connection to the kind of conduct about which Anthony had been warned. Nor he there any evidence that it played a part in either Anderson's report or the reprimand. The reprimand itself, and apparently the report that prompted it, focus exclusively on the subject of the conversation with Rhodes.
The written reprimand specifies Anthony's May 27 conversation with Rhodes, allegedly about union business, as a violation of previous instructions not to engage in such activities during working hours. It also refers to the May 17 warning about disrupting operations. 45
The reprimand letter's expressed concern about "conducting union business" signifies that Anderson's reaction was directed toward what Anthony was doing with this time rather than what he was not doing--that is--work. Therefore, I conclude that the suspected union activity was not a legitimate justification for the action taken. Moreover, the incident, even as described by Andersen, was relatively trivial. While it is arguable that such an incident could have sparked a "corrective action" against an employee who, like Anthony, had previously been warned about disruptions, the evidence is not persuasive that Anderson would have gone to the trouble even to return to the scene, if Anthony had not been an aggressive union advocate. See Funk Mfg. Co., 301 NLRB 111 (1991). I conclude that the reprimand was a form of discrimination within the meaning of sections 7116(a)(2) and (4) of the Statute, also interfering with his right to act for a labor organization in violation of section 7116(a)(1).
CASES NOS. WA-CA-40661, 40662, AND 40668
These cases concern allegations that NOAA, through Supervisor Douglas, discriminated against Anthony by removing the flexibility of his lunch period and by restricting his work breaks, and further interfered with, restrained, or coerced Anthony in the exercise of his statutory rights by a statement concerning the nonunion status of the "shop."
It is undisputed that prior to the events in question, which occurred on June 1, 1994, the employees in SDG had been permitted to take a one hour flexible lunch break (1/2 hour paid and 1/2 hour unpaid) anytime between 11:30 a.m. and 1:30 p.m. On May 31, Anderson reported Anthony's May 27 activities to Douglas. Anthony testified, and Douglas did not deny, that on May 31 Douglas asked him what specific time he had taken lunch on May 27. Anthony told Douglas he hid not know the exact time and asked him why he wanted to know. Douglas answered that Mr. Anderson wanted to know exactly when he had distributed the May 27 letter he had delivered to Anderson as set forth under Case No. WA-CA-40701. Anthony told Douglas, at some point during that conversation, that he had distributed it during his lunch. (Tr. 480-81.) Within the next day, Douglas informed all three of the employees he supervised that their lunch hours would be cut to 1/2 hour. Anthony was apparently the last to be informed.
Anthony testified that at about 8:00 a.m. on June 1, Douglas informed him of the change. According to Anthony, he asked Douglas why he was cutting the lunch hour, and told him that he "really need[ed] this time to do union matters[.]" Douglas told Anthony that he didn't care, that the matter was not an issue of negotiation. Douglas also said, Anthony testified, that he thought Anthony was "through with the Union[.]" Anthony told Douglas that Douglas' supervisor, Pierre Richard, had told Anthony that the lunch was to be a full hour. Douglas agreed to check this out, and returned later to tell Anthony that Anthony was right and that the length of the lunch break would not change (Tr. 482-83.)
Douglas told Anthony, however, that it was necessary to schedule Anthony for a fixed hour instead of an elective period within the previous 2-hour range. According to Anthony, Douglas explained that the reason for the change was that, because of the distribution of the May 27 letter, Anderson wanted to know specifically when Anthony was on lunch, so that he would know when he was actually doing union business. According to Anthony, Douglas offered him a choice between 11:30-12:30 and 12:30-1:30 as his lunch hour. Douglas told him, in a third meeting later that day, that he did not have a 15-minute break. He also told Anthony that:
[It] was not a union shop, it was not for negotiation, that that was the way it was going to be and that there was no -- no discussion going to take place on it.
Anthony testified that Douglas further explained that Anthony could have a coffee, soda, or bathroom break. However, he could no longer take a break at Liliana Musolino's desk, as he had in the past. (Tr. 485.)
Douglas testified that the reason he decided to adjust the lunch period was that his attendance at meetings in the previous two or three weeks, plus a major hard disk crash on his personal computer that required his undisturbed time "to try to get this project back on track, demanded that he be relieved of covering the telephone around the noon hour. The change was designed to have Anthony cover the period when the other employee who lunched during that period was on her lunch break. Douglas agreed with Anthony's testimony about the sequence from the proposed cut to 1/2 hour and the reconsideration of that option. He did not deny having the conversation regarding union business, about which Anthony testified, during their first meeting of the day.
Before their second meeting, Douglas testified, he had given to his more senior employee the choice of lunch periods, and she selected 11:30-12:30. He then offered Anthony either 12:00-1:00 or 12:30 to 1:30. Anthony objected, but Douglas told him he wanted office coverage and that Anthony had to choose. Anthony then selected 12:30-1:30. Douglas denied that Anderson had directed him to schedule Anthony's lunch breaks at any particular time. (Tr. 677.) However, he did not deny that he mentioned the May 27 letter and told Anthony that Anderson wanted to know when Anthony was "on lunch."
Douglas did not testify specifically about any third meeting on June 1, as Anthony did. However, he was asked about any discussion he had with Anthony about work breaks. He answered that they had discussed this on several occasions. The gist of their conversations was that there were no established 15-minute breaks in the morning and the afternoon in that unit (as in the unionized part of the facility), but that the employees were free to use the bathroom or get coffee (Tr. 679, 707). Douglas did not deny the statement Anthony attributed to him about "it" not being a union shop. However, he denied that he had told Anthony "several times" that he was determined to keep his office nonunion (Tr. 687).
Findings and Conclusions
A. The Lunch Policy Change
The undisputed evidence warrants a finding, which I make, that the General Counsel has established a prima facie case that Anthony's union activities were a motivating factor in the change to a fixed lunch hour. The timing of this action is a major ingredient in this finding. As discussed in Case No. WA-CA-40701, Douglas' relationship with Anthony had been colored from the beginning by management's identification of Anthony as a union activist whose activities required Douglas' attention. Beside the fact that Anthony's activities of May 27 were freshly before Douglas in the form of the May 31 report from Anderson, there is also the undenied testimony that, on May 31, Douglas asked Anthony when he had taken his lunch on May 27 because Anderson wanted to know when Anthony had distributed the letter. I credit this testimony, which shows that Anthony's union activities were on Douglas' mind around the time he decided to do something about the lunch periods. The report from Anderson prompted Douglas to issue the reprimand that is the subject of Case No. WA-CA-40701. However, for some reason, he was not ready to act on the reprimand until June 22. Meanwhile, it seems likely that he was motivated to respond in some way to Anderson's concern about when Anthony was free to engage in union activities.
Deciding whether NOAA's evidence successfully rebuts the prima facie case is a more difficult matter. There was no challenge to Douglas' testimony that he had suffered a hard disk crash that destroyed eight months' work, or that he had many meetings to attend that required him to be out of the office at times when telephone coverage had to be arranged. Also, Douglas was quick to accede to Anthony's objection to cutting the lunch period to 1/2 hour. If cutting the lunch hour had been his plan to limit Anthony's union activities, he need not have been dissuaded merely by the fact that his supervisor confirmed the existing practice.
On the other hand, Douglas' explanation does little to justify the timing of the action. The timing, and Douglas' reference on May 31 to Anderson's concern about Anthony's distribution of the May 27 letter, lend credence to Anthony's further testimony that, on June 1, Douglas mentioned the May 27 letter distribution again, and told Anthony that Andersen wanted to know when Anthony took his lunch. 46
Douglas did not say when the disk crash occurred, how long he expected his recently expanded meeting schedule to continue, or how he came to decide at that particular time that such action was necessary. Moreover, if I credit Douglas' testimony that he offered Anthony the choice of 12:00-1:00 or 12:30-1:30, Anthony's selection of 12:00-1:00 would have left 1:00-1:30 uncovered, giving Douglas no more than half of what he claims to have needed. I do credit Douglas in this respect. Anthony's version (that he was offered 11:30-12:30 or 12:30-1:30) would have given him a preference over the more senior employee that none of those involved would have expected.
Finally, I note that neither of the reasons that formed Douglas' asserted business justification for the change seem on their face to be permanent circumstances. Yet as of the date of the hearing, five months later, there was no evidence that any further consideration had been given to the necessity of continuing this restriction, which applies to no other SDG employee. This casts some further doubt on the assertion that the change was made primarily for business reasons. I conclude that the requirement of a fixed lunch hour violates section 7116(a)(2) and (1) of the Statute. I find no evidence to link the change specifically with any of Anthony's activities that fall within section 7116(a)(4). I find it unnecessary to speculate about such a link, since an additional section 7116(a)(4) finding would be cumulative and would not, in my view, affect the appropriate remedy.
B. The Work Break Allegation
I credit the substance of Anthony's testimony about the work break conversation on June 1, which corresponds in general to what Douglas testified he discussed with Anthony on several occasions. This was, of course, not the first time Anthony had been informed that he had no official 15-minute break. The SDG section was not covered by the collective bargaining agreement, and Anthony, upon leaving his bargaining unit position for a position in SDG, could reasonably expect only to enjoy the terms and conditions of employment of SDG employees. When he arrived in SDG in March, this was made clear to him, along with the instruction that the informal breaks he might take were not for union activities.
NOAA was entitled to restrict Anthony's activities during working hours to the same extent it restricted other SDG employees. However, in Case No. WA-CA-40701, as I have found, NOAA overstepped its legitimate managerial prerogative by restricting union activity because it was union activity. Likewise, there is no evidence that Douglas' June 1 restatement that Anthony had no official 15-minute break was in response to a concern that Anthony was staying away from his desk too long. It appears rather to have been prompted by the suspicion that he was continuing to use his breaks for union activity, as stated in the June 22 reprimand letter.
Did this, then, constitute an additional violation of the Statute? The validity of the original restriction has not been challenged in this case. However, at the time it was reaffirmed, the Agency had demonstrated that the restriction was amide at union activity, not considerations of efficiency. it therefore could no longer enjoy the presumption of validity. See, e.g., Restaurant corp., supra; Montgomery Ward & Co., 202 NLRB 978, 979-80 (1973). I conclude that Douglas' restatement of the unavailability of an official break, in a context reinforcing the restriction on union activities, constituted discrimination within the moaning of sections 7116(a)(2) and (4) of the Statute and interference, restraint, or coercion within the meaning of section 7116(a)(1). See Premier Maintenance, supra, 282 NLRB at 16. 47
C. The "Union Shop" Statement
I credit Anthony's uncontroverted testimony about the statements made by Douglas on June 1 alleged to constitute an independent violation of section 7116(a)(1). The relevant allegation in the complaint is that Douglas told Anthony that "the Requirements and Technology Staff is non-union and would stay that way." The General Counsel contends that the statements Douglas made justify the complaint's characterization, in that they convey a message that union activity would not be appreciated and would be futile. I disagree.
Douglas' statement about "it" (presumably referring to the Requirements and Technology Staff) not being a union shop, taken in its full context, does not justify the General Counsel's characterization. First, this was part of the conversation about Anthony's break. The flow of Anthony's testimony implies that the "union shop" statement followed Douglas' statement that Anthony would no longer have 15-minute breaks (Tr. 485). Its most natural meaning, a I see it, is that Anthony was no longer entitled to an official 15-minute break, as were employees in the "union shop" in which Anthony was previously employed. I do not hold anyone to Anthony's exact words in reporting what Douglas said, but his version is that Douglas next said, "[I]t was not for negotiation, that that was the way it was going to be...." Given that the word, "it," is the closest we can come to what Douglas said was not for negotiation, I cannot infer that "it" meant anything except Anthony's break. Finally, "that was the way it was going to be" means just that, still referring to the work break. I do not read any more into it. The test, of course, is whether Anthony, not I, could reasonably have drawn a coercive inference from the statement. Department of the Air Force, Scott Air Force Base, Illinois, 34 FLRA 956, 962 (1990). I do not believe he could.
Since we are stuck with Douglas' purported use of the word, "it," to describe the subject of the allegedly coercive statement, the issue hinges in the first instance on what Anthony could reasonably have believed "it" was. I understand the General Counsel's theory to be that "it" meant union activities or unionization of the "shop." I can understand how someone in Anthony's position could have heard it that way, in the larger context of his situation. But that alone does not make it a reasonable interpretation. In the immediate context of the conversation, I do not believe that Douglas could have made it much clearer that he was talking about the work break, nor can he reasonably be charged with anticipating that what he said could be interpreted differently. I do not find this to be an ambiguous statement, which puts the speaker at peril of there being an alternative reasonable interpretation that is coercive.
Counsel for the General Counsel relies in addition on Douglas' statement to Anthony in an earlier conversation, according to Anthony, that "I thought you were through with the Union." Counsel would have this statement read in conjunction with the statement discussed above. Douglas did not deny the "through with the Union" statement. However, counsel for NOAA had no reason to question him about it or request him to supply any needed context. The statement, on its face, has no connection with any allegation in the complaint. NOAA had no notice that the statement would be used to augment the General Counsel's theory about the meaning of the alleged "non-union and would stay that way" statement. Especially in a long and complicated hearing, as this was, I do not think it is reasonable to expect counsel to attempt to controvert every statement made by the opponent's witnesses, no matter how remotely connected with the issues that have been joined. Nor should such a course be encouraged. In these circumstances I believe it would be unfair to make a credibility finding about the "through with the Union" statement. Moreover, even assuming that Douglas said that, I do not believe it changes the meaning of the statement that was put in issue. I shall recommend that the alleged independent violation of section 7116(a)(1) be dismissed.
CASE NO. WA-CA-40812
This case involves allegations of further acts of discrimination against Anthony. It is alleged that on July 21, 1994, NOAA ordered Anthony not to remain in the building where he works while on annual leave. It is further alleged that on August 24, NOAA refused Anthony's request for annual leave to perform union activity, that it detailed Anthony to a room without a telephone and limited his phone use, prohibited him from entering the computer room where he had been assigned until that date, instructed him not to visit the work area of employees in the distribution branch, and informed him that "suitability issues" require management to take measures against him, all in reprisal for his protected union activity.
Findings of Fact
A. July 21 Ban from Building While on Annual Leave
On July 21, Supervisor Douglas gave Anthony a memorandum relating to Anthony's use of the telephone and his presence at the facility while he was on annual leave. The complaint contains no allegation concerning this memorandum's reference to telephone use. The part that this case concerns reads:
Also, be advised that from now on when you have signed out on official annual leave you are to leave this government facility. You are not to linger here and continue to work or conduct any other business. This is a violation of government policy.
Anthony protested this ban, apparently immediately on being handed the memorandum. Anthony told Douglas that the ban would interfere with his legitimate union activities. Douglas testified that he told Anthony that he would check out his claim that he had a right to remain there to conduct union business, and that he would get back to Anthony. Douglas further testified that later the same morning he checked with "Labor Relations" and was told that Anthony had the right to remain and conduct union business if he followed appropriate procedures. Douglas says he called Anthony back into his office immediately after lunch the same day, and told him that if he had prior approval from the supervisors of employees with whom he was to meet, and followed appropriate procedures, he could come back while out on leave and conduct his union business. Anthony confirmed that Douglas had given him some additional information about the ban the same day. However, he denied that Douglas admitted he was incorrect in banning him. Anthony also denied that Douglas told him he could be in the building while on annual leave to conduct legitimate union representational functions, scheduled meetings, or grievance processing. Anthony's answer to each of these questions, put to him on cross-examination, was: "No, sir. That's not what took place." However, he never testified about what "additional information" Douglas did give him."
Douglas' testimony on this matter is more credible. Anthony's concession that Douglas spoke to him again persuades me that Douglas accurately portrayed their first conversation, in which Douglas told Anthony he would get back to him. Anthony's pregnantly negative answers to a series of questions designed to elicit his version of what Douglas said during their second conversation, coupled with his failure at any point to state what it was that Douglas told him, persuades me that Douglas' version is essentially accurate. Even more persuasive are two requests for annual leave (part of R. Exh. 30), approved by Douglas on July 22 and 26, for Anthony to conduct union business in the building. However, Douglas' willingness to place the ban on Anthony initially, for no plausible legitimate reason, is noteworthy.
B. August 24 Refusal of Annual Leave
Anthony testified that he requested a few hours of annual leave to perform union business and that Douglas initially refused to accept the Form SF-71 application from him. Anthony then went to his second-level supervisor, Pierre Richard, who looked at Anthony's hours and told him that he saw no problem with the leave request and that he would talk to Douglas. Douglas came back to Anthony later and told him that, although he knew that Anthony had talked to Richard, Frank Wilkins, Chief of the Requirements & Technology Staff and Richard's supervisor, had decided to disapprove the leave request. Anthony also testified that normally, formal requests for annual leave of two or three hours were not required, nor were employees asked for the purpose of leave.
Douglas denied that the incident occurred at all and denied that he had ever disapproved a request by Anthony for annual or sick leave. Wilkins corroborated Douglas in denying any conversation about annual leave for Anthony, and testified that he was away from the facility, taking a class at the Department of Commerce. Richard was not called to testify.
For the following reasons, I credit Anthony. On August 25, he submitted an SF-71 annual leave request to Douglas for the express purpose of preparing a grievance. On the face of the SF-71 is the following note:
cc: Mr. Richard -- This is not in lieu of request made on 8/24/94
Douglas approved the August 25 request (R. Exh. 30). I infer that the note quoted above was on the SF-71 when Douglas signed it, as it is on the copy of the form that NOAA placed in evidence. Further, I draw an adverse inference from NOAA's failure to call Richard to deny his part in the events of August 24 as described by Anthony. NOAA's brief represents that the General Counsel subpoenaed Richard but failed to call him as a witness. Richard is a management official who might consider himself at risk if he testified against the Agency. His failure to testify to corroborate the Agency's version of the event is more telling. Finally, Douglas' credibility on this issue is weakened by his denial that he had ever refused Anthony's requests for leave. This testimony appears to be contradicted by a disapproved SF-71 request for August 8. Anthony's testimony about the normal practice for requests for a few hours of leave stands uncontradicted.
C. Relocation, Detail, and Restrictions
Anthony had applied for the position of computer specialist. He testified that in February 1994, Personnel Management Specialist Beverly Smith informed him that he had been selected and asked him whether he would accept the position. Anthony told Smith he would not be sure until she checked into his current status with regard to his dismissal from his previous job, so that it was thoroughly reviewed and discussed with the managers to ensure that there were no problems. He later met with Smith, who told him she had discussed the matter with Requirements & Technology Staff Chief Wilkins, and that the previous dismissal would not be a problem unless new information turned up during his background investigation. Smith gave Anthony a "partial" SF-85P packet (standard form for a "moderate risk" position) to complete. Smith testified as to the routine nature of the investigation, and did not contradict Anthony as to any of the details.
Pursuant to the requested investigation, an investigator for the U.S. Office of Personnel Management (OPM) interviewed Anthony on July 14. The investigator's report of the interview indicates that the matters discussed included Anthony's personal and employment history. Part of that history was his dismissal from a job with the U.S. Army in 1986 for falsifying his job application, and his explanation of both the underlying events and his subsequent efforts to clear his record. These efforts had been successful to the extent that in 1989 OPM determined that he was suitable for competitive Federal service, making him eligible at least for certain positions. The falsification charge was that Anthony failed to disclose a conviction for a misdemeanor in Korea. (When Anthony successfully applied for his first job with NOAA in 1991, his Form 171 included the fact of his 1986 removal, along with Anthony's explanation of the conviction and his earlier failure to disclose it.)
OPM issued a report to the Department of Commerce on August 3. That report was turned over to Labor Relations Specialist James Faulkner around August 12. Faulkner notified Wilkins, Douglas, and ACD Chief Carol Beaver. The report is entitled "Report of Agency Adjudicative Action on OPM Personnel Investigations." It states that certain investigative material compiled by OPM is attached, and that OPM had reviewed the material and made the following suitability adjudication determination:
There are potentially actionable issues which, standing alone, may very possibly be disqualifying under security/suitability considerations. You are required to complete this form and return it to OPM.
If you made a favorable determination without contacting the person (item 1), state briefly in the remarks section what you considered in making your determination.
Following this recitation is a list of alternative "adjudicative actions" from which one, ranging from favorable determination to removal, was to be selected. At the bottom of the form, the recipient agency is instructed that it is required to report to OPM its adjudicative action "within 90 days of receipt of all OPM investigative material."
According to Faulkner, the case was assigned to a "specialist" who had more experience in suitability cases. I infer, in the absence of evidence to the contrary, that the OPM investigative material was attached to the Report, and that it included the substance of the investigator's report of his interview with Anthony. According to ACD Chief Beaver, she also received a call about the matter from Distribution Branch Chief Andersen, who had a copy of the relevant Form 171's submitted by Anthony. Beaver agreed to Andersen's suggestion that he and Douglas should "look at it" together.
(2) The General Counsel's Evidence
Douglas wrote a memorandum to Anthony, dated August 17, which he delivered on August 23 or 24 together with an August 23 memorandum from Staff Chief Wilkins.
The August 17 memorandum informs Anthony that he is being "temporarily reassigned to work on another project in another location." The other location was room 210, upstairs in the same facility. Anthony testified that room 210 is in an unoccupied section of the building, about 100 feet from the nearest phone and "completely isolated from any of the other employees that would normally be there." The work assignment consisted of some computer-related projects, for which a computer with the necessary software had been furnished.
The August 23 Wilkins memorandum is also addressed to Anthony and has, as its stated subject, "Temporary Detail." Its text is as follows: 48
This memorandum is to advise you that recent suitability issues concerning you have been brought to the attention of management that requires management to take immediate precautionary measures to insure the operational integrity of the Automated Distribution System (ADS). In concurrence with these actions, effective Wednesday August 24, 1994, you are hereby temporarily detailed for 30 days to perform unclassified duties for the Systems Development Group in another location within the same facility. The duties that you will be performing during your detail will be furnished to you under separate cover by your supervisor.v
You are not to use the ADS in any form, for any reason while on this detail. Also, you will not be allowed access to the computer room at any time nor will you use any computer terminal connected to the ADS.
Your status within the Systems Development Group remains unchanged. There will be no change in policy, working hours, lunch break nor any other previously established working relationship. Robert N. Douglas will remain your immediate supervisor and will require work schedules, bi-weekly reports and will assist you as required. Your duties will not necessitate any contact with the Distribution Branch, so there will be no reason to visit their work areas. If you require use of a phone, the one in room 207 will be used. The same phone restrictions are in effect as were used in the computer room, no more than 5 minutes per phone call. Mr. Douglas will make periodic visits to assist you or answer questions as required. He may be reached on intercom number 707.
Failure to adhere with the guidelines described in this memorandum may result in disciplinary action being taken against you.
Anthony testified that he read the Wilkins memorandum in Douglas' presence and asked him whether the reference to contact with the Distribution Branch meant that in no circumstances was he to have any contact with any employees of that branch. Douglas answered that was so and that Anthony had no reason for contact with there because he had no work assignments there (Tr. 745). Douglas did not deny that conversation. Moreover, there is evidence of other occasions on which Douglas attempted to keep Anthony away from Distribution Branch employees because of what he regarded as Anthony's disruptions of their work. I credit Anthony.
Wilkins extended the original 30-day detail for "at least another 30 days" (Tr. 888). It was apparently still in effect at the time of the hearing.
(3) The Agency's Evidence
Wilkins testified that he decided to detail Anthony away from his former position because he was "concerned with the problems that we may have encountered with [Anthony] ... working with the automated distribution system." His concern, more specifically, was that Anthony "would do something that would cause the system to malfunction...." Wilkins' first stated reason for this concern was that a number of incidents had been brought to his attention where Anthony "had been disruptive...." He gave as examples of this disruptive behavior that Anthony had gotten into an argument and had used a fax machine without permission. (Tr. 873, 895.)
Questioned further on his reason for not being able to trust Anthony in the computer room, Wilkins stated that Anthony had in his possession, at an Authority hearing, two invoices belonging to a contractor of the Distribution Branch that should not have been in Anthony's possession, and which, according to the contractor, had been altered. 49 Adding to Wilkins' concern was certain information he had received from Douglas that Anthony had told an employee of a contractor that he could bring the operation to its knees. 50 Finally, Wilkins mentioned that "about the same time ... there was some questions raised about his suitability[;] ... they were conducting a background investigation, " in the course of which Douglas had been asked to characterize his relationship with Anthony. Wilkins testified that he had, at that time, asked Labor Relations Specialist Faulkner whether the investigation had been completed.
Later, in response to questions from the bench, Wilkins added that one of his concerns was that Anthony had made some false claims of unfair labor practices, the falsity of which reflected on Anthony's honesty.
Not included in his list of concerns by Wilkins, but mentioned by ACD Chief Beaver in her testimony, was that in a memorandum from Douglas received in June or July, Douglas had indicated that some documents had disappeared from the computer room and that a program he had spent months on had disappeared. 51 There was evidence of a July 13 meeting among management officials at which Douglas' suspicions about Anthony's involvement in these events was discussed and no conclusions reached. Wilkins was cross-examined about any evidence linking the problems in the computer room with Anthony. He disclaimed having any such evidence. 52
Discussion and Conclusions
A. July 21 Ban from Building
I have found that Douglas attempted to ban Anthony from the building while on annual leave, but, on checking out Anthony's protest, rescinded the ban. The very morning that he issued the ban, Douglas approved two hours of annual leave for Anthony to engage in "Pre hearing preparation," and, as noted earlier, he approved another two hours of leave the following day specifically for union business in the building. I conclude that the ban never went into effect. Douglas' actions, in conjunction with his credited testimony that he told Anthony he would get back to him regarding his protest of the ban, indicate that the ban never went into effect and that Anthony understood this. The rescission was not complete, in that Douglas told Anthony he could conduct union business in the building only if he had prior approval from the supervisors of the employees he was to meet and if he followed "appropriate procedures." However, the General Counsel has not contended that these conditions were unlawful. Nor does the complaint allege that the contemporaneous restriction on Anthony's telephone use was unlawful. I shall recommend that the allegation of the complaint referring to the July 21 memorandum (paragraph 12(a)) be dismissed.
B. August 24 Refusal of Annual Leave
Having found that Douglas, purportedly with Wilkins' concurrence, denied Anthony's request for annual leave on August 24, I am left, by their denial that they did so, without any explanation, for the refusal. In fact, NOAA's brief states that "[w]hether there was a violation with regard to this specification is strictly a matter of credibility." I therefore conclude that Anthony's request for annual leave was an act of discrimination within the meaning of sections 7116(a)(2) and (4) of the Statute, and was also coercive within the meaning of section 7116(a)(1) and (4).
C. Relocation, Detail, and Restrictions
1. Framework for Discussion
Although alleged in the complaint as a separate count of discrimination, the statement in Wilkins' August 23 memorandum that "recent suitability issues ... [require] management to take certain precautionary measures ...," is, in my view, rather the vehicle for announcing the actual "measures" that were taken, both under Wilkins' memorandum and the accompanying memorandum from Douglas. This statement helps to frame the issue of whether those actions were discriminatory within the meaning of sections 7116(a)(2) and (4).
Like the "suitability issues" statement, but for different reasons, that part of complaint allegation 12(c) that refers to a 5-minute restriction on phone calls is not properly the subject of an independent decision on the merits. Wilkins' memorandum did not implement that restriction. It was implemented by Douglas on or before July 21, according to Anthony (Tr. 736). Its implementation at that time not having been alleged as an unfair labor practice, I do not believe NOAA was required to defend its mere announcement a month later that the restriction was still in effect.
In defending the remaining actions, NOAA has placed much emphasis on asserting the incredibility of Anthony's testimony at the hearing. However, I find the proper focus of inquiry to be the Agency's motivation for actions that are essentially undisputed. Anthony's credibility comes into play only to the extent that it can cast any light on management's motivation.
2. Letterkenny Analysis
I find with respect to each of the remaining allegations that the General Counsel has established a prima facie case. The history of the actions taken against Anthony, combined with the predictable effect of the latest actions on his ability to use his nonworking time to conduct union business, provide the essential elements of the initial showing required by Letterkenny. I note also Wilkins' reliance on Anthony's prior unfair labor practice allegations that Wilkins deemed to be false. I find irrelevant the extent to which room 210 had been occupied previously. Room 210 undisputedly isolated Anthony to some degree. The issue arising out of his relocation there, as well as the other "measures" taken, is whether there is an adequate Letterkenny defense.
The Agency's defense is somewhat confusing, particularly with respect to management's use of the term, "suitability." At first blush, Wilkins' August 23 reference to "recent suitability issues" relates to the OPM report containing a "Basic Suitability Adjudication Determination." Faulkner received that report on August 12 and informed Wilkins, among others in management, about it. However, as Wilkins testified concerning the decision to take various "measures," the suitability questions raised by the OPM report came out almost as merely incidental to the main reasons, which concerned events preceding the report.
I shall attempt, for purposes of discussion, to put the Agency's position in the best possible light, consistent with the evidence. Thus, a number of unusual things occurred during the time Anthony was stationed in the computer room, when few people had ready access to it. Other conduct, regarded by management as breaches of trust, was attributed to Anthony by third parties, either directly or by hearsay. On July 13, management officials discussed these matters and could not decide that there was enough evidence to take any action. On or after July 27, it was discovered that Anthony had in his possession two invoices to which his normal duties as an employee should not have given him access, and it was reported that the invoices had been altered. Finally, the OPM report indicated that some "potentially actionable issues" required further investigation and could possibly disqualify Anthony from his present position. Management therefore decided it had to take "immediate precautionary measures to insure the operational integrity of the [ADS]...."
This position has some appeal as an explanation for some of the temporary measures taken, like a temporary relocation and a detail of duties that did not require access to the computer system that had experienced the "suspicious" problems or was subject to damaging mischief. The legitimacy of the relocation to the particular room Anthony was assigned, with its distance from a telephone, ie difficult to evaluate as a distinct "measure" because there was no evidence one way or the other about the availability of other rooms. None of the consideration mentioned by Wilkins, however, appears to address the necessity for a restriction on any contact with Distribution Branch employees. On this point, the memorandum is sufficiently ambiguous that it could be construed to refer only to working-time contacts. I have credited Anthony's uncontradicted testimony that he questioned Douglas on it and learned that he was barred from any "visits" to their area.
If, for argument's sake, something like a 30-day detail and relocation was a plausible response to a series of troublesome incidents, it is what has, and has not, occurred since the action was taken that casts the greatest doubt on its legitimacy. To the extent that the action was based on the OPM report, such "precautionary measures" were not required by the report itself. The report required a further investigation into the matters that prompted the "Basic Suitability Adjudication Determination," namely, the events underlying Anthony's previous dismissal. OPM required the Department of Commerce to report its final adjudicative action within 90 days of receipt of the August 3 report. When the hearing in these cases closed, the 90 days had almost expired. Yet there was no evidence that a final determination had been made, nor was any indication given about the nature or progress of the investigation. 53 The subject of the inquiry, of course, was one that Anthony himself had put forward to the personnel specialist before accepting his position. The specialist represented that she discussed it with Wilkins, who approved Anthony's entering into the position unless new information turned up. Nothing in the record indicates that there was any significant new information on this subject.
Regarding the matters that preceded the OPM report, there is similarly no evidence of further attempts by the Agency to determine whether the suspected misconduct that could not be linked with Anthony by July 13 could now be linked. If the Agency made any further investigation, it had taken no action as of the time of the hearing consistent with a positive finding, instead, Wilkins extended the 30-day detail to an undisclosed date after the hearing closed.
On August 31, responding to a request for information about the Agency's basis for the action taken, Wilkins had informed Anthony that "management is in the process of finalizing its evaluation of the suitability issue raised concerning you, and considering appropriate action(s)". (GC Exh. 16). This response warrants the inference, in the absence of evidence to the contrary, that the investigatory stage of the Agency's inquiry had been completed, at least substantially, by the end of August. After a reasonable opportunity to evaluate any new information, it was time for the Agency to fish or cut bait. If there was new evidence that confirmed any of the suspicions or hearsay reports of misconduct, warranting further action, the Agency was obliged to determine what further action to take, if any. Instead, it had, up to the time of the hearing, left this employee in limbo. Whether or not the effect was consciously inflicted, the metaphor, "twisting in the wind," comes to mind.
I find that, whatever legitimacy the original 30-day detail and the accompanying actions may have had, a reasonable time to resolve the issues behind the asserted reasons for the detail had expired without the Agency having taken such steps as would be considered normal in the absence of Anthony's protected activities. I conclude that the Agency has not rebutted the prima facie showing of discrimination. Since it will not affect the appropriate remedy (discussed below), I find it unnecessary to decide whether imposition of the original detail was discriminatory. I conclude that barring Anthony from any contact with Distribution Branch employees, and imposing an unnecessarily long detail, relocation, and barring from the computer room, violated sections 7116(a)(1), (2), and (4) of the Statute.
D. Summary of Conclusions in Case No. WA-CA-40812
NOAA has violated sections 7116(a)(1), (2), and (4) by refusing Anthony's request for annual leave on August 24, by barring him from contact with Distribution Branch employees, and by detailing, relocating, and denying him access to the computer room for longer than was necessary to resolve his "suitability issues." The General Counsel has not established that NOAA banned Anthony from the building when he was on annual leave, that it unlawfully limited Anthony's phone calls to five minutes on or about August 24, or that the statement that suitability issues require management to take measures against Anthony is an independent unfair labor practice.
Counsel for the General Counsel seeks some nontraditional and extraordinary remedies. The basis for these requests is the history of the unfair labor practices the Agency has been found to have committed over approximately the past two years, and the nature of the allegations in the instant cases, several of which I have sustained.
The requested remedy that has engaged most of the parties' attention is that the Authority direct the Agency to initiate disciplinary proceedings against supervisors Anderson and Douglas because of their respective roles in the unlawful acts of discrimination against Anthony.
The General Counsel acknowledges this remedy to be unprecedented, and I inter that I am to understand that no General Counsel of the Authority has sought such a remedy before. This is not the first time that such a remedy has been sought in an Authority unfair labor practice proceeding, however. In a decision without precedential significance, (yet admirably uncovered by counsel for NOAA) Judge Cappello considered a charging party's request for a similar remedy, although different in one respect. Veterans Administration, Audie L. Murphy Memorial Hospital, San Antonio, Texas, Case Nos. 6-CA-1372, 6-CA-1373, 6-CA-1375 (1983), ALJ Decision Reports, No. 21 (March 4, 1983) (Audie L. Murphy). The difference in the remedy requested in that case was that the Authority was to act as "the de facto Special Counsel" and actually impose the discipline after providing appropriate due-process procedures. Judge Cappello examined the pertinent language in section 7118 (a) (7) of the Statute, which provides that an Authority remedial order may direct an agency to take certain actions specified in the subsection, "or such other action as will carry out the purpose of this chapter" (emphasis added). 54 She decided that this grant of remedial power did not extend to the requested remedy. Judge Cappello went on to indicate why she did not regard such a remedy as appropriate to the particular case. She did, however, order that the notice required to be posted be read to a group of employees who worked outside and may not have had ready access to places where notices are customarily posted. The notice was to be read by the higher of two supervisors who committed the unfair labor practices, in the presence of the lower-level supervisor and all other supervisory personnel of the section, at an employee meeting to be convened for this purpose.
Judge Capello did not find it necessary to present in further detail her reason for concluding that the discipline remedy sought was beyond the Authority's power. In any event, the General Counsel's purposeful pursuit of this alternative to the Authority's traditional remedies warrants serious reconsideration of its possibilities.
It becomes necessary to refer again to the section of the National Labor Relations Act that is most comparable to the applicable provision of the Statute. That is section 10(c), which authorize the Labor Board to order a "person" found to have engaged in an unfair labor practice "to take such affirmative action ... as will effectuate the policies of this Act[.]" The power thus granted to command affirmative action is remedial, not punitive, and such an order is within the Board's power only to the extent that the action ordered can be said to aid the Board in restraining violations or in removing the consequences of violations. Local 60, Carpenters v. NLRB, 365 U.S. 651, 655 (1961). 55
The courts have long struggled with the problem of articulating an approach to reviewing Board orders that are under attack for being "punitive." This began in Consolidated Edison Co. v. NLRB. 305 U.S. 197, 219 (1938), where the Supreme Court stated:
We think that this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.
On the other hand, the Court gave a somewhat different impression only a few years later, when it held that the Board's decision as to remedies must be upheld "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540 (1943). The latter statement has been cited in support of the proposition that "the imposition of remedies is a matter of special administrative competence, subject to very limited judicial review." Steelworkers v. NLRB, 646 F.2d 616, 629 (D.C. Cir. 1981) (Steelworkers).
Our focus here, of course, is on the limits of "remedial" powers under the Federal labor relations statutes. Justice Frankfurter pointed the way to a more nuanced approach when, in writing for the Court he stated:
It is the business of the Board to give coordinated effect to the policies of the Act. We prefer to deal with these realities and to avoid entering into the bog of logomachy ... by debate about what is "remedial" and what ie "punitive." It seems more profitable to stick closely to the direction of the Act by considering what order does ... and what order does not, bear appropriate relation to the policies of the Act.
NLRB v. Seven - Up Bottling Co., 344 U.S. 344, 348 (1953). 56 The District of Columbia Circuit, in particular, has had occasion to consider the practical application of Justice Frankfurter's dictum to cases involving recidivist violators. Thus, in Steelworkers, that court attempted to reconcile the need to impose more stringent remedies against recidivists with the stricture that Board orders not be punitive. It found justification for remedies that, while they might appear "punitive" in the context of an individual case, are clearly "remedial" in the context of the total conduct of a recidivist violator because "[e]mployees may be affected deeply by the mere fact that an employer has demonstrated a staunch willingness to violate the act in defiance of past Board orders." Id. at 631. The court also endorsed the suggestion that the imposition of remedies in the case of a recidivist violator particularly demands the sensitive exercise of administrative judgment and expertise. Id. at 631 n.34.
Even in Steelworkers, however, the District of Columbia Circuit reaffirmed the principle that the Board may not justify an order solely on the ground that it will deter future violations. Id. at 360. Finally, that court has given some more recent guidance that, although directed to the question of the imposition of a different non-traditional remedy--the "forced public reading" of the Board's notice by the employer--cannot be ignored here. Thus, in Food & Commercial Workers v. NLRB, 852 F.2d 1344, 1348 (1988), the court stated that it will not enforce such orders when the record fails to indicate "particularized need" for the order.
From all of this, I find it difficult to justify a flat statement that "other action as will carry out the purpose of this chapter" may never include an order to initiate disciplinary proceedings against someone who is responsible for an unfair labor practice. 57 However, a highly "sensitive exercise of administrative judgment and expertise" is demanded when deciding whether there is a "particularized need" for such a remedy. See Steelworkers, supra, at 631 n.34. 58
Ultimately, several considerations persuade me that the requested discipline remedy is not appropriate in these cases. 59 First, notwithstanding the history of unfair labor practices at the Riverdale facility (all but one apparently within the Distribution Branch of ACD), the magnitude of the violations committed must be viewed in perspective. As indicated in Steelworkers, the Labor Board has normally reserved its use of extraordinary remedies for cases involving a history of massive, pervasive, and very serious unfair labor practices--the industrial equivalent of a blitzkrieg.
On the other hand, the remedial response should be proportionate to the violations and to the particular circumstances. Justice Frankfurter's remarks in Seven - Up should provide sufficient caution to avoid the semantic trap of requiring a showing of "extraordinary" violations in order to justify anything that could be labelled an "extraordinary" remedy. That the Federal sector provides less opportunity for violations on the magnitude of a J.P. Stevens does not mean that non-traditional and innovative remedies are out of place.
The particular remedy of discipline for two of the supervisors involved in the instant consolidated cases does not respond with the necessary careful tailoring, in my view, to the situation presented by the violations found to date. The rationale for imposing it would be that Agency employees may be deterred from exercising their statutory rights because of Anthony's experience, unless they have confidence that their supervisors understand clearly that taking similar action would put them at risk of unwanted consequences.
Any prediction of the effects of the outcome of this case is by its nature speculative to some extent. However, there is at least some reason to believe that the restoration of the status quo ante with respect to Anthony will enhance the status of the Union in the minds of the employees, including the potential voters in theevent of a representation election if one is held pursuant to Anthony's petition. Anthony having been largely vindicated and his rights restored, I believe that both the represented and the unrepresented employees will sense the value of having an active and aggressive union.
Certainly worthy of consideration for remedial purposes is that all of the unfair labor practices I have found here were directed at one individual. There was no retaliatory action against other employees or union officials, either to exert pressure to curb Anthony or otherwise. Anthony himself is not easily deterred. He was not noticeably deterred by the discrimination he suffered, and, although this is only one factor to be considered, I am confident that he will not be residually deterred in the absence of the discipline sought.
Nor do the actions of the supervisors whose discipline is sought rise to the level of defiance of prior orders of the Authority. Of the three Authority orders that had been issued at the time of the unfair labor practices in the instant cases, none involved discrimination, and only one, Case No. WA-CA-31011, involved a direct, rather than a "derivative" interference with employee rights. There is also a qualitative difference in the nature of these unfair labor practices, which, notwithstanding their seriousness, distinguishes them from many of the blatant violations that characterize the classically "defiant" recidivist. Thus, the very fact that these acts of discrimination were cloaked as responses to legitimate management concerns demonstrates a grudging respect for the rights protected by the Statute, or at least a recognition of accountability. That is not to say that pretextual action is lose culpable by virtue of its hypocrisy. Here, however, there were arguably legitimate reasons for most of these actions. I have only found, for the most part, that these reasons did not eliminate the unlawful reasons as motivating factors under the Letterkenny standard. Not present here, as might be found in a more flagrant case, is the premeditated trumped-up charge or the fictitious set of circumstances contrived to provide the asserted justification.
The violative actions themselves are serious but not breathtaking. Anthony received a reprimand, a temporary detail and relocation that might have had an indefinite duration but for the availability of recourse to the Authority, and some restrictions that could have made his union activities more difficult. On one occasion among many he was denied annual leave for union business. Anthony had unleashed an almost incredible storm of filings, challenging, it would appear, a substantial proportion of the managerial actions that came to his attention. Other conduct attributed to him that is otherwise peripheral to these cases does at least allow for a credible degree of managerial annoyance that was not union related. In these circumstances the actions taken against him are no more remarkable for their harshness than for their restraint. They do not necessarily signal employees that any union activity will put them at risk.
Targeting Douglas and Anderson for disciplinary action seems misdirected for some additional reasons. These two, one a first-level and the other a mid-level supervisor, were not involved in any of the earlier unfair labor practices. In fact, the totality of their conduct seems no more serious than that of at least one supervisor who was involved in some of the earlier cases and Mr. Wilkins in the latest cases. Aside from the appearance of arbitrariness, there is a sense in which, if the situation is serious enough to warrant extraordinary remedies, the focus on Douglas and Anderson alone might even trivialize the problem.
Also to be considered is how such a remedy meshes with the other remedial measures to be ordered. The General Counsel justifiably requests that Anthony be reinstated to his former position if he so desires. Such restoration will put him in close contact with Douglas and may be expected to cause Douglas some humiliation. In the circumstances, this may be unavoidable. To cause him the further humiliation of discipline could, with their restored contact, have results adverse to one of the key purposes of the Statute, "an efficient and effective Government." Section 7101. Before imposing that risk, I would require a stronger showing of necessity than has been made here. 60
In summary, I do not find that the case has been made for the extraordinary remedy of disciplining these supervisors. In addition, I have identified some reasons why I believe the remedy, even if it has some arguable usefulness, is inappropriate here. I do not find it necessary to decide whether any of the negative or affirmative reasons, standing alone, would warrant the same result. I shall not recommend that remedy to the Authority.
Counsel for the General Counsel also requests that the notice to be posted be signed by the Secretary of Commerce. I find, as Judge Oliver did in the earlier cases in this series, that the NOAA Assistant Administrator for the National Ocean Service, not any higher official, is the proper official to sign the notice. The unfair labor practices have been localized within the level of this activity, and it has not been shown that they reflect a broader Agency policy.
The third and last extraordinary remedy requested is an employee meeting conducted by the Deputy Undersecretary for NOAA to explain the circumstances of the violation in Case No. WA-CA-40701 and to assure employees that such activity will cease and that the Agency will discipline "any supervisor who intentionally discriminates or retaliates against a union official because of protected activity." Such a meeting goes far beyond the "extraordinary" Labor Board remedy designed for the J.P. Stevens' of the industrial world--the reading of the notice by a company official. 61 The centerpiece of the requested meeting is the commitment to discipline "any supervisor who...." The procrustean nature of this commitment is not mitigated by its limitation to cases of "intentional" discrimination. If there is such a thing as unintentional discrimination because of union activity, I cannot envision whom to entrust with making the distinction.
Absent the unsatisfactory disciplinary subject of the requested meeting, its stated purpose is too unfocused to be of much use, and I shall not recommend it. As the General Counsel has pointedly not requested the notice-reading remedy, I shall not recommend it either.
I shall, however, recommend a broad cease and desist order and some non-traditional language in the notice to reflect the finding of past violations and further assure employees that, despite this history, the Agency recognizes their statutory rights. I shall also recommend, as requested by the General Counsel, that the Agency be required to restore to Anthony any annual leave he used to conduct union business as a result of the unlawful restriction on his lunch hour and his breaks. Accordingly, I recommend that the Authority issue the following order.
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it ie hereby ordered that the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Riverdale, Maryland shall:
1. Cease and desist from:
(a) Interfering with the right of employees to assist a labor organization by enforcing rules regarding work breaks in a discriminatory manner.
(b) Discriminating against employees to discourage union membership, or because they have filed a complaint, affidavit, or petition, or given information or testimony under the Federal Service Labor - Management Relations Statute, by reprimanding them, by restricting the flexibility of their lunch hour, by selective enforcement of work break rules, by refusing their requests for annual leave, by prohibiting them from having contact with other employees, and by reassigning, relocating, and restricting them from certain locations for longer than necessary to resolve issues of their suitability.
(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their 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 Federal Service Labor - Management Relations Statute:
(a) Rescind the June 22, 1994 reprimand of Brian Anthony - Jung.
(b) Restore Brian Anthony - Jung's flexible lunch hour and any annual leave he used to conduct union business as a result of unlawful restrictions on his lunch and break time.
(c) Offer to Brian Anthony - Jung reinstatement to his former work assignment and location.
(d) Post at its facility in Riverdale, Maryland, 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 NOAA Assistant Administrator for the National Ocean Service, 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 insure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that all remaining allegations of the complaints in these cases are dismissed.
Issued, Washington, DC, May 19, 1995
Administrative Law Judge
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
The Federal Labor Relations Authority has found that we violated the Federal Service Labor - Management Relations Statute, and have done so in the past, and has ordered us to post and abide by this notice.
WE WILL NOT interfere with the right of employees to assist a labor organization by enforcing rules regarding work breaks in a discriminatory manner.
WE WILL NOT discriminate against employees to discourage union membership, or because they have filed a complaint, affidavit, or petition, or given information or testimony under the Federal Service Labor - Management Relations Statute, by reprimanding them, by restricting the flexibility of their lunch hour, by selective enforcement of work break rules, by refusing their requests for annual leave, by prohibiting them from having contact with other employees, or by reassigning, relocating, and restricting them from certain locations for longer than necessary to resolve issues of their suitability.
WE WILL NOT in any other 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 June 22, 1994 reprimand of Brian Anthony - Jung.
WE WILL restore Brian Anthony - Jung's flexible lunch hour and any annual leave he used to conduct union business as a result of unlawful restrictions on his lunch and break time.
WE WILL offer to Brian Anthony - Jung reinstatement to his former work assignment and location.
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 of the Federal Labor Relations Authority, Washington Region, 1255 22nd Street, NW, 4th Floor, Washington, DC 20037-1206, and whose telephone number is: (202) 653-8500.
FOOTNOTES FOR THE AUTHORITY:
(If blank, the decision does not have footnotes.)
1. Member Wasserman's separate opinion concurring in part, and dissenting with respect to Case No. WA-CA-40668 is set forth at the end of this decision.
2. The complaint alleged that the Respondent implemented a Total Quality Management program without providing the charging party notice and an opportunity to negotiate. Because no exceptions were filed to the Judge's finding that the Respondent did not violate the Statute, we adopt that finding, without precedential significance, pursuant to section 2423.41(a) of the Authority's Regulations. This regulatory provision, which concerns the Authority's action on judges' decisions, was amended in 1997, and was previously contained in 5 C.F.R. § 2423.29. As the amended regulation applies to all ULP complaints pending after October 1, 1997, the amended regulation is applicable. See 62 Fed. Reg. 40922, 46175 (1997).
3. All dates hereafter refer to 1994 unless otherwise noted.
4. The testimony was in a consolidated hearing in Case Nos. WA-CA-30663, WA-CA-30834, WA-CA-31012, and WA-CA-31015. No exceptions were taken to the Judge's findings that ULPs were committed. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Riverdale, Maryland, OALJ 95-19 (adopted without precedential significance Feb. 3, 1995) (NOAA I).
5. Anthony-Jung's supervisor asked the Branch Chief to attend the meeting. The supervisor testified that he called the meeting to "put a stop" to some of Anthony-Jung's activities in the Distribution Branch during working hours that the Branch Chief viewed as disruptive. Transcript (Tr.) at 657.
6. OPM's 1989 determination removed any general bar to federal employment. However, OPM informed Anthony-Jung that individual agencies retained responsibility for adjudicating suitability for sensitive positions.
7. The Judge rejected the Respondent's claims that Anthony-Jung was "an inherently incredible witness." Judge's Decision at 2 n.2. Rather, the Judge made specific particular credibility determinations as the need for those determinations arose.
8. However, the Judge dismissed as violations the Respondent's statements in its August 23 memorandum that suitability issues required management to take certain precautionary measures, and that the 5-minute restriction on telephone calls previously applicable to Anthony-Jung was still in effect. The Judge viewed the suitability statement as simply the vehicle for announcing the actual measures that were taken, not an independent violation. As to the telephone restriction, the Judge viewed the August 23 memorandum's reference to the restriction as merely announcing that the restriction was still in effect. The Judge pointed out that the restriction itself had been instituted by Anthony-Jung's supervisor on or before July 21, and its implementation at that time had not been challenged as a ULP.
9. The Judge found it unnecessary to decide whether imposition of the original detail was a ULP, stating that such a finding would not affect the remedy he recommended based upon his other holdings.
10. General Counsel also moved to strike two exhibits attached to Respondent's exceptions, citing section 2429.5 of the Authority's Regulations, which provides that the Authority will not consider evidence not presented before the Judge. We find that the two exhibits, a grievance filed by Anthony-Jung dated October 13, 1994, and a Notice of Personnel Action (SF 50) documenting Anthony-Jung's reassignment dated January 8, 1995, constitute evidence not presented to the Judge. Accordingly, we grant the General Counsel's Motion to Strike. See U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 530 (1990).
11. Such considerations may include, but are not limited to: 1) the witness's opportunity and capacity to observe the event in question; 2) the witness's character as it relates to honesty; 3) prior inconsistent statements by the witness; 4) the witness's bias or lack thereof; 5) the consistency of the witness's testimony with other record evidence; 6) the inherent improbability of the witness's testimony; and 7) the witness's demeanor. See Hillen v. Department of the Army, 35 MSPR 453, 458 (1987).
12. It is incumbent on the judges to state the basis of their credibility determinations, e.g., whether they are based on witness demeanor or some other basis. For the reasons set forth above, it is also incumbent on the judges to explain, in circumstances such as those in this case, why they credit or discredit the testimony of a particular witness. Our concurring colleague suggests that requiring judges to state the basis for their credibility determinations will encourage litigation. We disagree. In our view, clearly informing parties of the basis of credibility determinations and the standard upon which those determinations will be reviewed will tend to decrease rather than increase exceptions to the Authority. Moreover, if parties choose to litigate nondemeanor credibility determinations, such exceptions to a judge's credibility determination must include specific citations to the record in support thereof.
13. For example, Respondent cites the following testimony as contradictory. In response to Respondent's question as to whether he appealed his 1986 removal to the MSPB, Anthony-Jung stated that "I think it calls for an explanation, so you'd understand, but to answer your question bluntly, no, I did not." Tr. at 209. In fact, Anthony-Jung filed an appeal but withdrew it prior to any action. The MSPB issued an initial decision indicating that the appeal had been voluntarily withdrawn. Respondent then introduced MSPB's initial decision for the purpose of contradicting Anthony-Jung's previous answer. The testimony continued: Q. Now, you've just testified that you did not appeal the case of your removal to the [MSPB], isn't that correct? a. No, sir. That wasn't my answer. I said it required some explanation as to why I did not go to the MSPB. In other words, I initially filed an appeal, but I did not follow through with it and dismissed it[.] Tr. at 210-211.
14. The Respondent attempted to introduce testimony concerning the quality of labor-management relationships with other bargaining units in ACD which were represented by a labor organization other than Local 2640. The Judge refused to allow such testimony, finding that bargaining relationships in other units were irrelevant. The Respondent excepted to the Judge's ruling, arguing that the testimony would have been relevant to the question of anti-union animus. It is well established that the determination of the matters to be admitted into evidence is within the discretion of an Administrative Law Judge under section 2423.31(b) (previously section 2423.19(g)) of the Authority's Regulations. See American Federation of Government Employees, Local 1345, Fort Carson, Colorado, 53 FLRA 1789, 1796-97 (1998); Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1531 (1994) and cases cited therein. The Judge's determination that the bargaining relationship in a different organizational unit, involving different managers and a different union, was irrelevant to the motivation of the Respondent's managers in this case was not an abuse of discretion.
15. The Judge never resolved the conflicting testimony concerning the conversation between Anthony-Jung and the Union President. The Branch Chief testified that he heard the Union President talking about union business whereas Anthony-Jung and the Union President both testified that they were talking about personal matters. But because what is at issue is Respondent's motivation, the relevant fact is what the Branch Chief believed, namely, that Anthony-Jung was conducting union business.
16. Respondent excepts that the Judge refused to take notice that a reprimand is a mild form of discipline. Because we find sufficient evidence to conclude that the reprimand was motivated by Anthony-Jung's protected activity, the severity of the discipline is irrelevant. See e.g., Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California, 45 FLRA 138, 155-56 (1992) (agency violated the Statute by reprimanding employee for protected activity).
17. Respondent excepts to the Judge's specific finding that no other employee was subject to the restriction of a fixed lunch hour. Although the Judge's statement is incorrect, this error is insufficient to reject his conclusion that Anthony-Jung's protected activity was the motivation for the lunch period change. First, the Judge's conclusion that Respondent discriminated against Anthony-Jung does not depend on this fact. Second, in the specific circumstances of this case, the fact that the other SDG employee was also technically subject to the change, is of little consequence. The record shows that the other employee had always taken her lunch at 11:30, even when the SDG employees were allowed a flexible lunch. It was only Anthony-Jung who took advantage of this flexibility and he did so in order to accommodate his union activities.
18. We also adopt the Judge's conclusion that Respondent did not violate section 7116(a)(4). Section 7116(a)(4) makes it a ULP "to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given other information or testimony under this chapter." The Judge found no evidence linking the Respondent's actions to any specific activity that falls within this section.
19. The quotation marks indicate a direct quote from Anthony-Jung's testimony (Tr. at 485), not a direct quote from his supervisor.
20. Our dissenting colleague would find that the supervisor's "union shop" statement constituted interference, restraint and coercion with respect to Anthony-Jung's rights under the Statute. Although we disagree with his analysis, we note that even if we found a violation of the Statute with respect to this aspect of the complaint, the remedy would not be materially affected.
21. Citing Fed. R. Evid. 1002, the Respondent argues that the Judge should not have relied on the Standard Form 71 dated August 25 because the "best evidence" would have been the Standard Form 71 Anthony-Jung allegedly submitted on August 24. However, Respondent's reliance on Rule 1002 is misplaced. That rule requires only that, as evidence, an original document is preferred over a copy. There is no rule that a party must produce the most probative evidence that the nature of the case permits. See M. Graham, Federal Practice and Procedure: Evidence § 6871 (Interim Edition).
22. The Respondent cites IRS, Boston District Office, 5 FLRA 700, 713 n.10 (1981) for the proposition that an adverse inference may not be drawn where both parties had an opportunity to call the witness. This overstates the rule. See McCormick, supra, at 187. This bar to drawing an inference only applies when the witness's disposition towards one party or the other cannot be reasonably assessed. Id.; Ariza-Ibarra, 651 F.2d at 16. As indicated in the text, the Respondent claims that the second-level supervisor's testimony would be favorable to its position.
23. The complaint in Case No. WA-CA-40812 separately alleged that Respondent violated the Statute by restricting Anthony-Jung's phone calls and by informing him that suitability issues required certain restrictions on his activities. We adopt the Judge's finding that neither of these actions constitutes a separate violation of the Statute and, therefore, dismiss these aspects of the complaint.
24. The Judge did not pass on the legitimacy of the initial imposition of the detail. He found instead that, notwithstanding any justification for initially imposing the detail, there was no justification for extending it beyond the initial 30 days and found a ULP on that basis. Because we find that the detail itself violated the Statute, we need not address this part of the Judge's analysis.
25. The General Counsel moved to strike those portions of Respondent's Opposition concerning the statutory authority of the Authority to order disciplinary proceedings against someone who is responsible for an unfair labor practice. Because we do not reach this question, it is unnecessary to rule on the motion to strike. See Department of Health and Human Services, Regional Personnel Office, Seattle, Washington, 47 FLRA 1338 n.1 (1993).
26. The Respondent contends that this remedy is erroneous as a matter of law because it suggests that Anthony-Jung was entitled to official time. Contrary to Respondent's assertions, this remedy is limited to annual leave that may have been required by the abolition of Anthony-Jung's flexible lunch period.
FOOTNOTES FOR THE ALJ:
(If blank, the decision does not have footnotes.)
1. Counsel for NOAA moved for the correction of numerous minor error in the transcript of the hearing. After seeking clarification from the parties, I grant that motion with the following modifications: (1) NOAA withdrew its request to correct pp. 100, 346, and 771. (2) On p. 694, 1. 8, "that any more" is corrected to "not any more."
2. Counsel for NOAA made extensive use of incidents in Anthony's history for impeachment purpose. I have not been persuaded that Anthony is an inherently incredible witness. However, I do not agree with Counsel for the General Counsel that there was anything improper about the manner in which the impeachment effort was pursued.
3. "Permissive" subjects are those matters which are excepted from the obligation to negotiate by section 7106(b)(1) of the Statute and those matters which are outside the required scope of bargaining under the Statute. U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Cincinnati, Ohio District Office, 37 FLRA 1423, 1431 (1990).
4. In this memorandum, together with the simultaneously released Advice Memorandum No. 95-3. the Authority's General Counsel implicitly acknowledges that, notwithstanding Executive Order 12871 (October 1, 1993), a refusal to bargain over a change that falls within both sections 7106(a) and (b)(1) does not violate the Statute, at least unless the change was susceptible to union proposals that were responsive and that would not implicate 7106(a)
5. Section 2(5) of the NLRA defines "labor organization," as "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work" (emphasis added).
6. See also Electromation at 994 n.21. Member Devaney, concurring in du Pont, was "uncomfortable" in some respects with the majority's discussion of the meaning of "dealing with," but agreed that "a brainstorming group of employees who work together, with or without managers, to come up with suggestions and recommendations for management to consider is not 'dealing with'." 311 NLRB at 902 n.10. One of the persuasive considerations for Member Devaney was that participating employees understand that they are acting on management's behalf. Id.
7. This does not imply that such employee involvement, or union participation in such programs by voluntary agreement, is to be discouraged. See Member Haughton's concurring opinion, id. at 414 15. In the instant case, the only aspect of the TQM program over which the Union expressed any specific concern, according to its representatives, was the scope of the organizational unit in which the program should be implemented. This goes to the substance of the decision to implement a TQM program, not to "procedures" to be observed in exercising managerial authority. Nevertheless, I do not find that the union waived its right to bargain over any negotiable intact and implementation issues connected with changes resulting from the TQM program. See Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 583-84 (1992). No negotiable changes having been made yet, or even announced, the Union has not yet had occasion to request such bargaining.
8. The date of the unfair labor practice hearing is admitted in the answer. I take official notice that Anthony so testified, as reported in OALJ 95-19, Case Nos. WA-CA-30663, 30834, 31012, and 31015. The findings and conclusions of Judge Oliver in those cases are, however, irrelevant to my consideration of the Merits of the instant cases.
9. I have not been able to find a definitive reference to this provision in the record. However, the parties seemed to have understood that such a provision existed. NOAA, in its brief, refers to the fact that Anthony, now being outside the unit, could not rely on any past practices governing work in the Distribution Branch. Whatever practices these may have been, I infer that management believe that Anthony, while in the Distribution Branch, had used break time for union activities.
10. Charles Frederick Anderson had formerly been in Anthony's chain of command but was no longer, nor was he in Douglas'.
11. This is not to say, of course, that an inference of animus must be drawn whenever certain factors are present, or that such inference should be drawn lightly.
12. There may be cases where unlawful motivation is shown by linking the treatment of one employee to the protected activity of another. The occasion to discuss such a situation, as well as the applicability of the "inherently destructive" principle in lieu of any proof of antiunion motivation, arose before me in Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, Case No. 1-CA-90022 (1990), ALJ Decision Reports, No. 91 (Aug. 29, 1990).
13. Except for the availability of official time under circumstances set forth in section 7131 of the Statute, the Peyton Packing doctrine is presumably applicable in the Federal sector.
14. Here, for reasons set forth under "Discussion and Conclusions," I find that there is a prima facie case based on Anthony's previous protected activities. Therefore I need not address the question of whether, for Letterkenny purposes, his alleged union-related conversation conducted during working time was presumptively protected, subject to the agency's showing that it was prohibited for legitimate work-related reasons, or was presumptively unprotected, subject to a showing that it was prohibited because it was union-related.
15. InBrigadier Industries, at 664, the administrative law judge applied to such a situation the Labor Board's Wright Line analysis, which is the same as Letterkenny. See Letterkennyat 122.
16. The petition, signed by Anthony, was required to be served on the agency. The circumstances, including the fact that Anthony had become virtually synonymous with the Union's presence at the Riverdale facility, warrant the inference that management, including Anderson and Douglas, knew or suspected by May 27 that it was Anthony who filed the petition.
17. The written report itself is not in the record. Anderson was cross-examined about it and about his conversations with Douglas about the matter (Tr. 640-42).
18. Neither party dealt more than fleetingly with the significance of the May 17 written warning, which cites three incidents of Anthony's interrupting Anderson at work without an appointment. There is no direct evidence that the alleged interruptions concerned union-management matters, and the written warning does not say so. NOAA's brief, however, characterizes the warning as "counseling [Anthony] to refrain from disrupting the Distribution Branch's activities while [pursuing] Union business."
19. This is not inconsistent with Douglas' denial that Anderson "direct[ed]" him "to schedule [Anthony's] lunch breaks at a particular time." Nor do my findings necessarily imply that Douglas falsely denied that his actions were taken "in reprisal" for Anthony's union activity (Tr. 680). Discrimination under section 7116(a)(2) covers a broader spectrum of actions than reprisal. In the instant case, Douglas' action, from his own point of view, was more likely designed to "discourage" future activities that would cause him problems with higher levels of management than to retaliate against Anthony for his past activities.
20. I have noted NOAA's argument that the restriction of Anthony to a fixed lunch hour did not actually impede his union activities. I make no factual finding in this regard. The restriction was either lawful or unlawful according to its motivation, with respect to sections 7116(a)(2) and (4), and according to its tendency, with regard to section 7116(a)(1), irrespective of its effect.
21. The Automated Distribution System (ADS) mentioned in the memorandum is a unit within SDG. Douglas is its chief.
22. The hearing was held on July 27, in Case No. WA-RO-40052, pursuant to the petition Anthony had filed in March.
23. No further information concerning this alleged statement was elicited. The record is silent as to how and when it came to Douglas' attention.
24. This appears to refer to the "hard disk crash" mentioned in Cases Nos. WA-CA-40661-40662, and 40668. Douglas was not asked, as part of NOAA's case, about suspecting Anthony. However, he took the opportunity on cross-examination to repeat the suspicions he apparently had expressed in his memorandum to Beaver. The memorandum is not in evidence.
25. Although I regard as pertinent to the issues presented here what information NOAA had before it, rather than what Anthony actually did (see GHR Energy Corp., 294 NLRB 1011, 1014 (1989)), I note that Anthony denied on the record any responsibility for the problems in the computer room.
26. It is not to be expected that the Agency would reveal confidential matters about its investigation, at least not without measures to protect their confidentiality. In this instance, however, no attempt was made even to represent in general terms how the required investigation was proceeding.
27. See also section 7105(g)(3) ("...require [an agency] to take any remedial action [the Authority] considers appropriate to carry out the policies of this chapter.").
28. "The primary purpose of the provision for other affirmative relief has been held to be to enable the Board to take measures designed to recreate the conditions and relationships that would have been had there been no unfair labor practice." Id. at 657 (Harlan, J., concurring).
29. logomachy: contention in words that are used wholly or almost wholly without real awareness of their meaning or that have little or no actual relation to reality.
30. I do not rely on U.S. Department of Justice, 39 FLRA 1288 (1991), or the court's decision denying review, U.S. Dept. of Justice v. FLRA, 961 F. 2d 1339 (D.C. Cir. 1993). That case, involving discipline awarded by an arbitrator, dealt with authority derived from the parties' contract, not from the Statute. Moreover, the court's jurisdiction to review the Authority's decision was of the very narrow scope permitted by Leedom v. Kyne, 358 U.S. 184 (1958), and limited the court to concluding that no specific provision in the Statute specifically withheld such power from an arbitrator's jurisdiction.
31. For example, in United States Postal Service, 309 NLRB 13 (1992), the Board fashioned a novel remedy for a backlog of grievances caused by the respondent's unfair labor practice of continuous failure to process grievances in a timely manner. The Board imposed an accelerated grievance procedure to clear the logjam created by the unfair labor practice.
32. For this reason I find it unnecessary to deal with NOAA's arguments regarding the impact of such a remedy on the rights of supervisors against whom disciplinary action is sought.
33. The Agency may, of course, do as an exercise of managerial authority what the General Counsel would have it ordered to do. The Agency, however, is better equipped to weigh the managerial consequences.
34. As noted above, Judge Cappello ordered such a reading in the Audie L. Murphy case, but for different reasons.