File 2: ALJ's Decision
[ v59 p200 ]
Office of Administrative Law Judges
SOCIAL SECURITY ADMINISTRATION
REGIONAL OFFICE OF QUALITY ASSURANCE BOSTON, MASSACHUSETTS
OF GOVERNMENT EMPLOYEES,
LOCAL 3760, AFL-CIO
Case Nos. BN-CA-00464
Laurie R. Houle, Esquire
Gary J. Lieberman, Esquire
For the General Counsel
John J. Barrett, Esquire
For the Respondent
Mr. John O. Toolan
For the Charging Party
Before: PAUL B. LANG
Administrative Law Judge
Statement of the Case
This case arises out of two separate unfair labor practice charges filed by the American Federation of Government Employees, Local 3760, AFL-CIO ("Union") against the Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts ("Respondent" or "ROQA"). In the first charge, designated as Case No. BN-CA-00464, the Union alleges that, on or about May 9, 2000, the Respondent retaliated against members of the bargaining unit by refusing to nominate any such members in the Disability Quality Branch for performance awards for fiscal year 1999 because of their participation in a survey sponsored by the Union. The Union also alleges that, on or abut May 11, 2000, the Respondent, through a representative, attempted to discourage membership in the Union by stating to a bargaining unit member that no award nominations had been made because of the results of the aforementioned survey.
In the second charge, designated as Case No. BN-CA-01-0433, the Union alleges that, on or about February 26, 2001, the Respondent retaliated against a member of the bargaining unit by refusing to afford her fair consideration for a performance award because of her activity on behalf of the Union. The Union further alleges that, on the same date, the Respondent, through a representative, attempted to discourage membership in the Union by stating that a member of the bargaining unit would not be considered for a higher level performance award because of her assistance to the Union in the filing and prosecution of an unfair labor practice charge against the Respondent.
The General Counsel subsequently issued complaints alleging that the Respondent had violated §§7116(a)(1), (2) and (4) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §7101, et seq. ("Statute"). The complaints were consolidated for a hearing which was held on February 12 and 13, 2002, in Boston, Massachusetts.
This Decision is based upon consideration of documentary evidence, testimony and demeanor of witnesses and the post-hearing briefs of the respective parties.
Positions of the Parties
The General Counsel
The General Counsel maintains that, on May 11, 2000, Joseph G. Murphy (commonly known as Jerry Murphy), a Team Leader for Respondent, told a member of the bargaining unit that neither he nor other Team Leaders would submit nominations of bargaining unit employees for performance awards because of their displeasure with the results of an employee survey conducted by the Union. The General Counsel further alleges that, on February 26, 2001, Murphy, who was a management member of a joint panel to consider the granting of performance awards, stated that he would not support the granting of a higher level award to Melanie Holmberg, a Union steward, because of her role in the filing of an unfair labor practice charge against the Respondent which was based upon alleged actions by Murphy. All of the aforementioned actions by or on behalf of the Respondent had the foreseeable effect of discouraging protected activity by bargaining unit employees. Murphy's statement at the meeting of the awards panel had the additional effect of unlawfully retaliating against Holmberg for her activities on behalf of the Union and of irretrievably compromising the awards process.
According to the General Counsel, the testimony of the Respondent's witnesses, including Murphy, that the alleged statements were never made, is not to be believed since it is so similar as to be rehearsed. [ v59 p201 ]
The General Counsel seeks relief in the form of a cease and desist order directing the Respondent to refrain from retaliatory and coercive actions and statements. The General Counsel also seeks affirmative relief consisting of the posting of a notice, the payment of an additional performance award of $300 to Holmberg, plus interest [n1] and four hours of training on the requirements of the Statute for all of Respondent's Team Leaders and Directors, such training to be conducted either by the Authority or by another qualified third party.
The Respondent denies that Murphy made either of the statements alleged by the General Counsel. However, even if Murphy had expressed criticism of the survey, it was a natural reaction which was shared by a number of bargaining unit employees. Those employees had sent a formal written protest to the Union shortly after the survey form was first distributed. After an extremely small initial response to the survey, the Union held a special meeting at which its language and intent was explained. Even if Murphy had criticized the survey, his remarks were addressed only to George Lawlor who was an experienced Union representative with whom Murphy had worked for many years. Murphy's remarks, assuming that he had made them as alleged, could not have had a chilling effect on protected activity since they were not made in the presence of employees other than Lawlor.
The Respondent also denies that the decision of the team leaders not to submit written recommendations for performance awards was in any way intended as retaliation for protected activity by members of the bargaining unit. That action was prompted solely by a desire to avoid the stereotyped language of the written recommendations which contributed nothing to the deliberations of the awards panel. Although reasonable minds might differ as to the advisability of oral recommendations, they were permitted by the collective bargaining agreement and did not deprive any bargaining unit employees of full and fair consideration for awards.
The Respondent maintains that Murphy did not state that he opposed a higher award for Holmberg because of her participation in the filing and investigation of an unfair labor practice charge. The testimony to that effect of two of the Union representatives on the panel lacks credibility because of the inability of Lawlor, who allegedly heard the statement, to recall key facts concerning the recent history of the awards process. The credibility of the General Counsel's witnesses is further eroded by the failure of either Lawlor or Stephen Papik, the other Union representative on the awards panel who allegedly heard Murphy's remark, to make any sort of protest or to have Holmberg's name moved to the "parking lot" for later consideration. Papik agreed with Murphy and Michael Sullivan, another Team Leader, that Holmberg was not entitled to a higher award.
Finally, the Respondent argues that Holmberg would have received a lower monetary award in any event because of her low level of volunteer activities which was a key factor in the assignment of awards that year.
Findings of Fact
The Respondent's Office of Quality Assurance, in Boston and elsewhere, is charged with monitoring disability determinations by the agency for compliance with applicable regulations and policy rulings. It is divided into two branches: the Assistance and Insurance Program Quality Branch ("AIPQB") and the Disability Quality Branch ("DQB"). [n2] The Union is the collective bargaining representative for a single unit of employees in both branches.
Each of the branches is supervised by a Branch Director. Team Leaders, who review the work of six to eight bargaining unit employees, report to the respective Branch Directors. At all times pertinent to these cases the DQB Team Leaders were Murphy, Charles Siderski and Michael Sullivan; the AIPQB Team Leaders were John Kachichian and Joanne Fontaine. Holmberg was a Social Insurance Specialist in DQB. Murphy was her Team Leader for two or more years; in October of 2000 she became a member of Sullivan's team. Holmberg became a Union steward on February 29, 2000. Notice of her appointment was given to all employees, whether or not in the bargaining unit.
The Union Survey
In March of 2000 the Union conducted a written survey of all bargaining unit employees which inquired [ v59 p202 ] into their perception of whether various management employees had conducted themselves inappropriately, thereby creating a "hostile environment" in the work place. Holmberg had assisted in the drafting of the final version of the survey and was listed on the instruction sheet as one of the Union representatives to whom responses could be returned. Management representatives, including Murphy, were generally aware that the survey was under way.
The results of the survey were promulgated on or about March 16, 2000. Copies were provided to each of the bargaining unit employees and posted on two Union bulletin boards. Also, a copy was delivered to the Director of ROQA with a cover letter signed by Holmberg and the Union president.
For the purposes of these cases the most significant survey inquiry was number 6 which states:
Please circle the name of any member of Boston ORQAPA [another abbreviation used to identify the Respondent] management who has NOT affected you either directly or indirectly by what you perceive to be intimidating, coercive, loud or threatening behavior. (Emphasis in original.)
The responses to that question (GC Ex. 3) indicated that Murphy had the second lowest score of all of the Respondent's management representatives and the lowest score of all of the DQB Team Leaders. [n3] The responses also indicated that, of the DQB employees who participated in the survey, none of the females and 6 (60%) of the males felt that Murphy had not engaged in the inappropriate behavior described in the question. The results for Sullivan were 1 (9%) of the females and 6 (60%) of the males. For Siderski the results were 3 (27%) of the females and 7 (70%) of the males.
On March 29, 2000, a memorandum signed by thirteen members of the bargaining unit was directed to Earl Tucker, the national president of the Union. In the memorandum the signatories criticized the substance of the survey and the manner in which its results were published. They further stated that the survey results were unreliable and that those results should not be interpreted as reflecting a consensus of members of the bargaining unit. [n4] Murphy obtained a copy of the memorandum and posted it on an interior wall, along with the results of the survey, in his office [n5] where it remained for between a month and six weeks. [n6]
The Awards Nominations
Bargaining unit employees are eligible for several types of annual monetary performance awards. The selection process involves a first level panel composed of equal numbers of Union and management employees. The first level panel considers all bargaining unit employees other than panel members. There is a second level panel which considers bargaining unit employees who were on the first level panel. Nominations for awards may be made by supervisors or peers and employees may nominate themselves.
In or around May of 2000 Lawlor had determined that he would not make nominations himself. The stated reason for his decision was a reluctance to nominate peers and his feeling that he was not aware of factors such as work production which were known by the Team Leaders. However, he sent notes to the Team Leaders of DQB outlining the contributions of various employees in the hope that they would be nominated by the Team Leaders. Lawlor later received receipts indicating that he himself had made nominations and was upset that his name was used without his permission. Lawlor then met with each of the Team Leaders individually to determine why they had used his name. On May 10 Siderski told him that he had passed along Lawlor's nomination and had not nominated anyone else because he did not have the time.
Later that day Murphy told Lawlor that he had done the same thing as Siderski because he could not nominate anyone who had anything to do with the survey. Murphy also stated that he and Siderski had taken this action on their own without having consulted with their superiors. When Lawlor attempted to discuss the matter with Murphy he told Lawlor that he was hurt by the survey. Lawlor told him that he had misinterpreted the survey results at which time Murphy walked out of his (Murphy's) office leaving Lawlor standing alone. When Lawlor confronted Sullivan the next day, he refused to talk about it. Each of those meetings was in [ v59 p203 ] the office of the respective Team Leader and no one else was present.
Murphy has denied making the statement to Lawlor. Each of the Team Leaders testified that they did not make written nominations because they were of no value to the discussions by the awards panel. They each stated that Lawlor himself had complained that such nominations were meaningless because they all contained virtually identical language. Furthermore, the language of the collective bargaining agreement merely states that award nominations "should" be in writing, thus allowing for oral nominations. The failure of the Team Leaders to make written nominations was a departure from previous practice and, in fact, they submitted written nominations the following year after the rules had been changed.
Murphy is not a credible witness in this regard in view of his demeanor and the substance of his testimony. That testimony was characterized by a number of evasions and inconsistencies, such as a purported inability to remember how he had become aware of the survey results and how he had obtained a copy of the memorandum of March 29, 2000. When asked if the survey results portrayed him in an unfavorable light in comparison with other supervisors, Murphy stated that he did not think that there was much difference. Yet, he testified that he was "initially" upset and offended by the survey results and acknowledged that he had kept the memorandum of March 29 on the wall of his office because:
It was for my morale. Every time I looked over at it, I didn't feel quite so bad about the survey results (Tr. 469).
Since, as Murphy has admitted, he kept the memorandum of March 29 posted for as long as about six weeks (presumably covering at least part of the period during which he was upset and offended) it would probably still have been posted on May 10 when he spoke to Lawlor about the awards nominations.
It is also highly likely either that Murphy convinced the other Team Leaders not to submit written nominations or that they reached that decision jointly. It can hardly be considered coincidental that the Team Leaders failed to make written awards nominations following the publication of the survey results in spite of the fact that they had made written nominations in both prior and subsequent years.
Notwithstanding the above determinations of credibility, it is undisputed that Lawlor's conversations with the respective Team Leaders took place in private, albeit in cubicles. There is no evidence that the Team Leaders communicated their refusal to make nominations to members of the bargaining unit other than Lawlor. Nor is there any evidence that Lawlor informed any bargaining unit employees other than Susan Skayne, who was then the president of the Union, of his encounters with the Team Leaders. [n7] However, Murphy testified that employees would routinely come into his office to submit leave slips and for other work-related purposes. Sullivan testified that a number of employees came into Murphy's office after the survey results had been published to assure him that they did not mean to cast him in an unfavorable light. All in all, it is clear that bargaining unit employees, at least those in DQB, saw at least the memorandum in Murphy's office and were otherwise aware of his displeasure.
The Meeting of the Awards Panel
The first level awards panel convened on February 26, 2001. Management members were Murphy, Sullivan and John A. Kachichian, a Team Leader in AIPQB. The Union representatives were Papik, Lawlor and Debra Jokinen, a member of Kachichian's team. Murphy and Lawlor were co-chairmen.
The first order of business was the establishment of ground rules. The members eventually agreed that all awards were to be made by "consensus", i.e., that awards would not be given in the face of a negative vote by any of the panel members. It was not necessary that each member approve of the award, but only that there be no active opposition. The panel's ground rules also provided for a "parking lot" to which names could be referred for later consideration.
The panel members also discussed the method by which the limited amount of award funds were to be distributed. Among the alternatives considered was a "peanut butter" approach whereby each nominee would receive a equal share of the total amount available. [n8] Another alternative was a three tier system. Both of those alternatives were eventually rejected in favor of a two tier system whereby recipients would receive either $200 or $500. According to the testimony of the management [ v59 p204 ] members, the panel decided that the determinative factor in making awards would be volunteer activity. This was defined as the willingness of the nominees to assume extra work such as organizing special events, serving as mentors to other employees and contract physicians and helping to distribute mail.
The panel then proceeded to the consideration of individual nominees. At one point Lawlor proposed that Holmberg receive a $500 award. There is considerable divergence of testimony about the deliberations of the panel with regard to Holmberg. [n9] According to Lawlor, Murphy thereupon stated that he could not support the higher level award for her because she had filed an unfair labor practice charge against him. Lawlor made a written note (allegedly contemporaneously) with the above description of Murphy's statement. Papik testified that Murphy mentioned Holmberg's union activity rather than the filing of the unfair labor practice charge as the basis for his opposition to her receiving a higher level award. Murphy categorically denied mentioning either the unfair labor practice charge or Holmberg's union activity. He testified that he opposed a $500 award for Holmberg because of her relatively low level of volunteer activity as compared with other employees. (Murphy had been Holmberg's Team Leader for about two years up until October of 2000 when she joined Siderski's team.)
Sullivan, Siderski and Kachichian also denied that Murphy made the statement and confirmed that the panel's recommendation for a low award to Holmberg was based upon her level of voluntary activity. The evidence also indicates that Kachichian and Jokinen acquiesced in the decision of the DQB panel members because of their superior knowledge of Holmberg's activities.
Although the evidence is murky at best, I do not credit the testimony of Lawlor and Papik as to Murphy's statement about Holmberg's union activities. In the first place, it defies belief that, if the statement had been made, neither Lawlor or Papik would have protested or, at the very least, have demanded that Holmberg's name be moved to the parking lot. Their testimony that Murphy was unlikely to change his mind and that they did not want to delay the consideration of other nominees is a feeble rationale for a failure to perform their duties as representatives of bargaining unit employees on a joint panel. This is especially so in the case of Lawlor, an experienced Union official who described numerous instances of his having sought out management representatives on behalf of bargaining unit employees. Surely, Lawlor's history is inconsistent with his ostensible reticence to protest against a blatant violation of the Statute. John Toolan, who was president of the Union at the time, testified as to his anger at Lawlor for not having taken immediate action. Lawlor himself acknowledged Toolan's reaction when informed of Murphy's alleged statement.
Another significant factor is the unrebutted testimony that Papik agreed with Murphy and Sullivan that Holmberg did not deserve a higher award. (Papik was not called as a rebuttal witness, nor was Lawlor questioned on this point during his rebuttal testimony.) Therefore, after careful consideration of all of the evidence, I find that the General Counsel has not supported the burden of proving the portion of the Complaint arising out of Case No. BN-CA-01-0433 by a preponderance of the evidence as required by §2423.32 of the Rules and Regulations of the Authority.
Discussion and Analysis
As stated above, the evidence shows that Murphy acted inappropriately after the survey results were promulgated and that he and the other DQB Team Leaders took action which was intended, and could be expected to be seen by bargaining unit personnel, as retaliatory. The merits of the survey and the method by which its results were announced are not at issue. The activities of Union representatives and other bargaining unit employees in connection with the survey are protected under §7102 of the Statute. Management representatives are not at liberty to retaliate against bargaining unit employees for protected activities which the supervisors consider to be unfair to them.
Murphy's reaction is in no way justified by the dissatisfaction of certain bargaining unit employees as evidenced by the memorandum of March 29, 2000, which he posted on the wall of his office. Unlike those employees, Murphy was a management representative of the Respondent. Although he might have been excused for a spontaneous expression of disapproval immediately after the survey results were distributed, both Murphy and the Respondent are charged with knowledge of their obligations to avoid interference with legitimate Union activity. Even if Murphy had not posted the survey results in his office, he admitted that he posted the memorandum of March 29 for a prolonged period where it was likely to be seen by his subordinates. [ v59 p205 ] Murphy's reaction to the survey results, when combined with the refusal of all three of the DQB Team Leaders to make written nominations for awards (a fact of which the employees in their teams were undoubtedly aware), resulted in the type of coercion that is prohibited by §7116(a)(1) and (2) of the Statute. The testimony that Lawlor had complained in the past of the way that written nominations had been made does not overcome the significance of the refusal of the Team Leaders to make any written nominations.
In 305th Air Mobility Wing, McGuire Air Force Base, New Jersey, 54 FLRA 1243, 1249 (1998) the Authority confirmed the framework for proving a prima facie case under §7116(a)(2) of the Statute. The elements of proof are that the employee(s) against whom the action was taken was engaged in a protected activity and that such activity was the motivating factor in the agency's treatment of the employee(s) "in connection with hiring, tenure, promotion or other conditions of employment."
Since the Respondent maintains that there was a legitimate reason for its action and that the same action would have been taken in the absence of the protected activity, it has the burden of proving that affirmative defense by a preponderance of the evidence. U.S. Dept. of the Air Force, 6th Support Group, MacDill Air Force Base, Florida, 55 FLRA 146, 149 (1999). As shown above, the General Counsel has met the burden of proving the case with regard to the refusal of the DQB Team Leaders to make written nominations for awards. Whether or not Holmberg was deserving of a higher award, she and other members of the bargaining unit were subject to the coercive effects of Murphy's statement to Lawlor and by the change in the longstanding method of nominations by the DQB Team Leaders. In view of the timing of the action by the Team Leaders and their vague assertions of Lawlor's criticism of the prior practice of written nominations, the Respondent has failed to support its burden of proof of justification.
The General Counsel correctly cites §7105(g)(3) of the Statute as authority for the imposition of a proposed remedy which includes four hours of mandatory training for Respondent's Directors and Team Leaders. While some training or orientation may well be useful, the Respondent's offense is not so egregious as to justify the imposition of training by an outside entity. It is to be hoped that this Decision will prompt the Respondent to take such action as is appropriate to prevent a recurrence of the incidents which gave rise to the unfair labor practice charge by the Union and the issuance of the Complaint by the General Counsel.
After careful consideration of the evidence and post hearing briefs, I have concluded that the Respondent violated §§7116(a)(1) and (2) of the Statute by failing to submit written nominations for performance awards in retaliation for the participation of certain of its bargaining unit employees in a survey conducted by the Union. Accordingly, I recommend that the Authority issue the following order:
IT IS HEREBY ORDERED that, pursuant to §2423.41(c) of the Rules and Regulations of the Federal Labor Relations Authority and §7118(a)(7) of the Federal Service Labor-Management Relations Statute ("Statute"), the Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts ("Respondent") shall:
1. Cease and desist from:
(a) Making statements or taking action which could reasonably be expected to interfere with, coerce or discourage employees from exercising the rights afforded them by the Statute to form, join or assist the American Federation of Government Employees, Local 3760 ("Union") without fear of penalty or reprisal, such rights to include the right to conduct and participate in surveys of bargaining unit employees sponsored by the Union.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at all locations where notices to bargaining unit employees are customarily posted copies of the attached Notice on forms to be provided by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Director of the Respondent and posted for 60 consecutive days. The Respondent is to take reasonable steps to ensure that the posted copies of the Notice are not altered, defaced or covered by other material.
(b) Pursuant to §2423.41(e) of the Rules and Regulations of the Authority, notify the Regional Director, Boston Region, Federal Labor Relations Authority, [ v59 p206 ] in writing within 30 days of the date of this Order as to what steps have been taken to comply.
Issued, Washington, DC, June 7, 2002.
PAUL B. LANG
Administrative Law Judge
NOTICE TO ALL EMPLOYEES IN THE
COLLECTIVE BARGAINING UNIT
POSTED BY ORDER OF THE