DEFENSE COMMISSARY AGENCY ALBANY COMMISSARY MARINE CORPS LOGISTICS BASE ALBANY, GEORGIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2317
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEFENSE COMMISSARY AGENCY
MARINE CORPS LOGISTICS BASE
andAMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2317
Case No. AT-CA-40242
Richard S. Jones, Esquire For the General Counsel
Before: WILLIAM B. DEVANEY Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2423.1, etseq., concerns whether Respondent lowered employee
Bryson F. Benson's performance appraisal rating and denied him a
performance award because of his protected activity.
This case was initiated by a charge filed on January 12,
1994 (G.C. Exh. 1(a)), which alleged violations of § 16(a)(1) and
(2), and by a First Amended charge filed on March 3, 1994 (G.C.
Exh. 1(c)), which alleged violations of §§ 16(a)(1), (2) and (4).
The Complaint and Notice of Hearing issued on April 28, 1994 (G.C.
Exh. 1(e)), alleged violations of §§ 16(a)(1), (2) and (4) of the
Statute, and set the hearing for a date, time and place to be
determined. By Order dated June 29, 1994 (G.C. Exh. 1(g)), the
hearing was set for September 13, 1994; however, pursuant to
Respondent's Motion For Continuance (G.C. Exh. 1(h)), by Order
dated September 12, 1994 (G.C. Exh. 1(i)), the hearing was
rescheduled for November 9, 1994, in Warner Robins, Georgia,
pursuant to which a hearing was duly held on November 9, 1994, in
Warner Robins, Georgia, before the undersigned.
All parties were represented at the hearing, were afforded
full opportunity to be heard, to introduce evidence bearing on the
issues involved, and were afforded the opportunity to present oral
argument which Respondent exercised. At the close of the hearing,
December 9, 1994, was fixed as the date for mailing post-hearing
briefs. General Counsel timely mailed an excellent brief, received
on December 12, 1994, which has been carefully considered as well
as Respondent's closing argument. Upon the basis of the entire
record(2), I make the following
findings and conclusions:
1. The Complaint alleged, Respondent did not deny (G.C.
Exh. 1(b)), and I find as alleged (G.C. Exh. 1(e), paragraphs
9-11), that, pursuant to an agreement between the Defense
Commissary Agency (DCA) and the American Federation of Government
Employees (AFGE), American Federation of Government Employees,
Local 2317 ("Union") represented Respondent's employees at all
2. Mr. Bryson F. Benson is a meat cutter at the Albany
Commissary, a job he has occupied for fourteen years (Tr. 16). He
is the sole Union steward in Respondent's Commissary, and has been
for seven or eight years (Tr. 17, 35). The Commissary employs 28 to
30 employees (Tr. 17).
3. It is undisputed that Mr. Benson has been an active
steward and has filed grievances and unfair labor practices
throughout his eight or nine year tenure as steward (Tr. 35)
including at least one grievance and two unfair labor practice
charges during the 1992-93 appraisal period as set forth in
Paragraphs 13, 14 and 15 of the Complaint (G.C. Exh. 1(e),
Paragraphs 13, 14, 15), and as Mr. Benson testified (Tr.
4. Except for the first six month period of his
employment when he received a "satisfactory" rating (Tr. 18), Mr.
Benson through the 1991-92 appraisal period was rated "Exceeds
Fully Successful" every year but one when he was rated
"Outstanding" (G.C. Exh. 5; Tr. 18, 54). For the 1992-93 appraisal
period, Mr. Benson was rated "Fully Successful." (G.C. Exh. 6).
5. At some point, apparently at or near the beginning of
fiscal year 1993, the separate Navy, Army-Air Force Commissaries
were merged into the unified Defense Commissary Agency (DCA). While
the effective date of DCA's creation was not shown, Mr. Benson's
Performance Plan, on DCA Form 50-3, was signed by Mr. Benson on
October 1, 1992 (G.C. Exh. 2), i.e., at the
commencement of the 1992-93 appraisal period.
6. The Navy form, NAVSO 12430, was used through the
1991-92 appraisal period (G.C. Exh. 5) and DCA Form 50-4 was used
for the 1992-93 appraisal period (G.C. Exhs. 6, 7, 8; Res. Exh. 1).
Each form has five rating levels. The levels on the Navy form were:
Unacceptable (level 1); Minimally Successful (level 2); Fully
Successful (level 3); Exceeds Fully Successful (level 4); and
Outstanding (level 5) (G.C. Exh. 5). The Navy form did not define
any of the rating levels, including "Exceeds Fully Successful" or
"Outstanding". DCA levels are: Unacceptable; Minimally Acceptable;
Fully Successful; Excellent; and Outstanding; the DCA form defines
each rating level. Thus, "Fully Successful" is defined as,
"Employee meets the requirements of all of the elements of the
performance plan"; "Excellent" as, "Employee exceeds more than
one-half of the critical elements and meets all other elements";
"Outstanding" as "Employee exceeds all of the elements of the
performance plan" (G.C. Exhs., 6, 7, 8; Res. Exh. 1). Consequently,
the DCA form on its face, by quantifying "Excellent" [exceeds more
than one-half of the critical elements and meets all other
elements] makes that rating quite different than the unquantified
"Exceeds Fully Successful" of the former Navy form.
7. Mr. Jimmie R. Burgess, Personnel Officer for DCA,
Southern Region (Tr. 45), testified that, ". . . It [the Navy
system] was a different system. The standards, job standards and
the mechanics of the system were quite different . . . the . . .
[DCA] system . . . we implemented, roughly in the 1992 timeframe. .
. . [DCA] was more precise . . . With that preciseness, it had a
downward effect on the overall rating system. If you look at the
ratings for these four employees in the meat department . . .
[91-92 Navy system versus 92-93 DCA system] you will notice that
all four employees went down one adjective rating . . . ." (Tr.
8. Mr. Burgess testified that performance ratings
dropped throughout the Commissary, not just in the meat department
(Tr. 47); that in the meat department Messrs. Gann and Shiver went
from "Outstanding" in 1991-92 to "Excellent" in 1992-93 (Tr. 46;
G.C. Exhs. 7 and 8; see, also, Tr. 33, 51-52, 54, 55, 58-59); and
that Messrs. Coleman and Benson went from "Exceeds Fully
Successful" in 1991-92 to "Fully Successful in 1992-93 (G.C. Exhs.
5, 6; Res. Exh. 1; Tr. 18, 29, 46, 52, 54). Mr. Eason testified
that under the DCA system the ratings for all four meatcutters
(Gann, Shiver, Coleman and Benson) came down "one adjective or one
block on the rating when we changed to the . . . [DCA] system" (Tr.
57); that he rated Mr. Benson individually on each element (Res.
Exh. 2) and ". . . the sum of the elements . . . was used to
determine what his overall rating was" (Tr. 58); that Mr. Benson's
Union activity had not interfered with his performance of duties
and that Mr. Benson's Union activity did not "figure" into his
decision as to Mr. Benson's final rating (Tr. 58). Mr. Ridley
testified that not only did Mr. Benson's rating go down as the
result of the change from the Navy system to DCA's system, but that
this was true throughout the Commissary (Tr. 51-52); indeed, that
his own rating went down one level (Tr. 52). Mr. Ridley further
testified that the only reasons for Mr. Benson dropping from
"Exceeds Fully Successful" to "Fully Successful" were, ". . . the
change in grading systems and the actual observa-tion of
performance done by Mr. Benson" (Tr. 52). For reasons fully set
forth in n.3, supra, General Counsel's
assertion concerning the absence of performance appraisals has been
9. Mr. Benson, even when shown his 1991-92 appraisal
(G.C. Exh. 5), demonstrates a lack of understanding of the Navy
ratings. Thus, in 1991-92, he was rated "Exceeds Fully Successful"
(G.C. Exh. 5) not, "Highly Satisfactory" as he insisted (Tr. 18).
His testimony that, ". . . it was never explained to me that there
had been any change in our perfor-mance rating" (Tr. 32) was
disproven by the DCA Performance Plan which he signed twice:
October 1, 1992, and July 1, 1993 (Res. Exh. 2; Tr. 37). Mr. Eason
testified that he informed each of the meatcutters of the new
performance plan; told each it was the new grading system; and
asked if they had any questions (Tr. 60); but he concedes that he
did not tell them that under the new DCA system their ratings
probably would decrease (Tr. 60).
10. Mr. Benson began with an erroneous assumption, namely, "Had my evaluation been the same as the other employees, just like it always has been, then they would have had to give me a cash award." (Tr. 22). In point of fact, Mr. Benson's rating for 1991-92 had been "Exceeds Fully Successful" (as had Mr. Coleman's), while Messrs. Gann and Shiver had been rated "Outstanding". Mr. Benson testified (Tr. 21-22) and Mr. Eason, agreed (Tr. 60), that in a prior year he and Mr. Shiver had been rated "Outstanding" and had been recommended for a cash award. It is conceded that because of the lack of funds for awards, no awards had been given for several years prior to 1993 (Tr. 61-62). Mr. Benson further testified that Mr. Gann previously had received an award (Tr. 23). Mr. Benson perceived improper motivation in Mr. Eason telling Messrs. Gann and Shiver not to tell anyone about it (Tr. 41); but conceded that Respondent did not announce cash awards (Tr. 24-25; see, also, Tr. 61); and Mr. Eason said that he, ". . . asked them not to mention it because . . . either the previous year or a year before that . . . I had recommended . . . [Benson and Shiver] for a cash award without ascertaining or confirming that the funds were available for that. And then I had to go back and announce to them that they were not going to get the cash award, and it caused controversy with me. It caused controversy with them and anybody else that was aware of the situation."
Mr. Benson read Union animus in Respondent's saying DCA does
not recognize the Union and denying training (Tr. 26-27); but
conceded there was both a dispute, which the FLRA ulti-mately
resolved in favor of the Union although, as Mr. Burgess testified,
". . . There was a point in time where the Authority had ruled that
there was no successorship from the Navy to the . . . [DCA]
organization for this unit . . . ." (Tr. 50), concerning
representation following the consolida-tion which created DCA and a
grievance concerning training under a memorandum of agreement (Tr.
Following the Supreme Court's decisions on dual, or mixed,
motive cases in Mt. Healthy City School District
Board of Education v. Doyle, 429 U.S. 274 (1977)
(hereinafter, "Mt. Healthy") and
Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 254 (1977), both the
Authority in Internal Revenue Service, Washington,
D.C., 6 FLRA 96 (1981) (hereinafter, "Internal Revenue") and the National Labor Relations
Board, in Wright Line, 251 NLRB 1083
(1980), adopted the Mt. Healthy test for
resolution of dual motive cases. Thus, the NLRB stated, in part, as
"Indeed, as is indicated by the above quotation of legislative history [93 Cong. Rec.
6678, 2 Leg. Hist. 1594 (1947)] and the citation of Great Dane [388 U.S. 26 (1967)],
the shifting burden process in Mt. Healthy is consistent with the process envisioned by
Congress and the Supreme Court to resolve discrimination cases, although the process has
not been articulated formally in the manner set forth in Mt. Healthy. . .
". . . we shall henceforth employ the following causation test in all cases alleging violation
of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation. First, we
shall require that the General Counsel make a prima facie showing sufficient to support the
inference that protected conduct was a 'motivating factor' in the employer's decision. Once this
is established, the burden will shift to the employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct (footnote omitted)." (251 NLRB
Similarly, the Authority stated, in part, as follows:
"In such circumstances the Authority finds that the burden is on the General Counsel to make
a primafacie showing that the employee had engaged in protected activity and that this conduct
was a motivating factor in agency management's decision . . . Once this is established, the agency
must show by a preponderance of the evidence that it would have reached the same decision . . .
even in the absence of the protected
1/ Cf. Mt. Healthy City School District Board of Education v. Doyle, 429
U.S. 274 (1977) (involving conduct protected by
the U.S. Constitution).
". . . If it is established by a preponderance of the evidence that the same action or decision
of the agency would have taken place even in the absence of the protected activity, a
complaint of violation of section 7116(a)(1) and (2) of the Statute will not be sustained.
Conversely, if it is not established by a preponderance of the evidence that the action or decision
would have taken place in any event, the Authority will find a violation under section 7116(a)(1)
and (2) of the Statute." (6 FLRA at 99).
The Authority reaffirmed its holding in Internal Revenue, supra, with
further clarification, in Letterkenny Army
Depot, 35 FLRA 113 (1990) where the Authority stated, in
part, as follows:
"First, the burden of proof always rests with the General Counsel. Section 2423.18 of the
Authority's Rules and Regulations provides that '[t]he General Counsel . . . shall have the
burden of proving the allegations of the complaint by a preponderance of the evidence.' This is
true in all cases of alleged discrimination . . .
". . . the General Counsel must establish that: (1) the employee against whom the alleged
discriminatory action was taken was engaged in protected activity; and (2) such activity was
a motivating factor in the agency's treatment of the employee in connection with hiring, tenure,
promotion, or other conditions of employment. . . If the General Counsel fails to make the
required prima facie showing, the case ends without further inquiry. .
"Even if the General Counsel makes the required 'prima facie' showing, an agency will not
be found to have violated section 7116(a)(2) if the agency can demonstrate, by a
preponderance of the evidence, that: (1) there was a legitimate justification for its action; and
(2) the same action would have been taken even in the absence of protected activity. For
example, IRS, 6 FLRA at 99 where the Authority referenced the approach taken by the
Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S.
274 (1977) (Mt. Healthy). . .
"It is erroneous to conclude, however, that because a respondent agency has an opportunity
to establish that it had legitimate justification for taking the disputed action, the ultimate burden
of proof shifts to the respondent to do so. The burden of proving the allegations of the unfair
labor practice complaint rests solely with the General
"Second, even if the General Counsel makes the required prima facie showing, it is necessary
to determine whether the General Counsel has proved the allegation in the complaint by a
preponderance of the evidence. In this regard, a prima facie case consists only of 'sufficient
evidence . . . to get plaintiff past . . . a motion to dismiss[.]' Black's Law Dictionary 1071 (5th ed.
1979) (citation omitted). Only if the respondent offers no evidence in its support does a prima
facie showing alone equate to proof
by a preponderance of the evidence. . .
"If, in response to a primafacie case established by the General Counsel, the respondent
offers evidence, it is necessary to determine whether the respondent's evidence rebuts the
General Counsel's prima facie showing. This determination is made on the basis of the entire
record, including any evidence the General Counsel offers in rebuttal to the respondent's
showing. If the respondent rebuts the General Counsel's prima facie showing by a
preponderance of the evidence, thereby establish-ing that it would have taken the allegedly
unlawful action even in the absence of protected activity, the General Counsel has not
established a violation of the Statute." (35 FLRA at 118-119). cf.St. Mary's Honor Center
v. Hicks, -- U.S. --, 113 Sup. Ct.
2742, 2747 (1993).
The Authority further noted that,
". . . the analytical framework discussed herein is consistent with the framework applied in
the private sector. The National Labor Relations Board (the Board) adopted the same test in
discrimination cases arising under the National Labor Relations Act (the Act). See Wright Line,
251 NLRB 1083 (1980), enforced, 662 F.2d 889 (1st Cir. 1981), cert.denied, 455 U.S. 989
(1982). . .
"The Board's application of Mt. Healthy was sustained by the Supreme Court in NLRB v.
Transportation Management Corp.,
462 U.S. 393 (1983). . ." (35 FLRA at 122).
To like effect, see, also: United States
Customs Service, Region IV, Miami District, Miami, Florida,
36 FLRA 489, 495 (1990); Department of Health and
Human Services, Regional Personnel Office, Seattle,
Washington, 47 FLRA 1338, 1342 (1993); U.S.
Department of Agriculture, U.S. Forest Service, Frenchburg Job
Corps, Mariba, Kentucky, 49 FLRA 1020, 1031 (1994).
A. General Counsel made a prima facie
I agree that General Counsel made a primafacie case of discrimination against Mr. Benson in
violation of §§ 16(a)(1) and (2) of the Statute. It was not
disputed that Mr. Benson was the only Union representative
(steward) in the Commissary; that he filed at least one grievance
and two unfair labor practice charges during the 1992-93 appraisal
period; and that Respondent was well aware of his protected
activity. General Counsel showed that Mr. Benson, after his initial
six months of employment, when he was rated "Satisfactory", for
thirteen years had never been rated less than "Exceeds Fully
Successful"; but in 1993, his rating was reduced to "Fully
Successful" even though Mr. Benson asserted his level of
performance had not diminished. Mr. Benson further asserted that he
had had the same rating as the other meat cutters but that only his
rating was reduced. Further, while over half of the Commissary
employees (eighteen of 28 to 30), including two of Mr. Benson's
co-workers in the meat department, received cash awards, Mr. Benson
did not. I have no doubt, as I stated in United
States Department of the Interior, Office of the Secretary, U.S.
Government Comptroller for the Virgin Islands, 11 FLRA 521
". . . that in any case where action affecting the conditions of employment of an employee
involves an employee known to be active in protected union activity there is a suspicion, or
presumption, that the action was motivated by the employee's protected activity." (11 FLRA
Without more, it appeared that Mr. Benson had been discriminated
against because of his protected Union activity. Letterkenny Army Depot, supra.
B. Respondent rebutted General Counsel's
prima facie case.
Piece by piece, Respondent rebutted each element of General
Counsel's case. First, for the 1992-93 appraisal period all
employees of the Commissary were appraised and rated under the DCA
system for the reason that the Navy Commissary at the Marine Corps
Logistics Base, Albany, Georgia, had ceased to exist and the former
Navy commissary had become part of the unified DCA (Army, Air
Force, Navy). Contrary to Mr. Benson's assertion that, ". . . it
was never explained to me that there had been any change in our
performance rating" (Tr. 32), Mr. Benson, in fact, signed the DCA
Performance Plan twice: on October 1, 1992, and on July 1, 1993
(Res. Exh. 2; Tr. 37).
Second, appraisals under the DCA appraisal system were lower
throughout the Commissary because the job standards were different
and the DCA appraisal system was more precise. For example, the
Navy appraisal form (NAVSO 12430) did not define any of the rating
levels, including: "Exceeds Fully Success-ful" or "Outstanding".
However, the DCA form (DCA 50-4) defines each rating level. For
example, "Fully Successful" is defined as, "Employee meets the
requirements of all of the elements of the performance plan";
"Excellent" is defined as, "Employee exceeds more than one-half of
the critical elements and meets all other elements"; and
"Outstanding" is defined as, "Employee exceeds all elements of the
performance plan" (G.C. Exhs. 6, 7, 8; Res. Exh. 1). The DCA
appraisal form, on its face, by quantifying rating levels,
e.g., "Excellent", as exceeds more than one-half of the critical elements and
meets all other elements, makes that rating very different than the
unqualified "Exceeds Fully Successful" on the former Navy appraisal
Third, all ratings of employees in
the meat department decreased in 1992-93, from 1991-92, by one
level. Thus, Messrs. Gann and Shiver, who had been rated
"Outstanding" in 1991-92, were rated "Excellent" in 1992-93; and
Messrs. Benson and Coleman, who had been rated "Exceeds Fully
Successful" in 1991-92, were rated "Fully Successful" in 1992-93.
This wholly rebutted Mr. Benson's dual assertions that he had
always had the same rating as his co-workers and that only his
rating was decreased in 1993.
Fourth, while General Counsel pointed to Mr. Benson's
activity in filing unfair labor practice charges and a grievance
during the 1992-93 appraisal period, Mr. Benson had, in fact, been
the sole Union steward for seven or eight years and when asked if
he had filed unfair labor practices and grievances before 1993,
responded, "yes, sir -- I sure did." (Tr. 35), from which I
conclude that he was an active steward throughout his tenure. Mr.
Benson testified that throughout his service, except the first six
months when he was rated "Fully Successful", he was never rated
lower than "Exceeds Fully Successful" and that in one year he had
been rated "Outstanding". He further testified that when he and Mr.
Shiver had been rated "Outstanding", his supervisor, Mr. Eason, had
recommended him for an award. Consequently, notwithstanding his
long and active role as Union steward, the record reflects no
discrimination toward Mr. Benson because of his protected activity.
Indeed, the suggestion that his rating might have been lowered
because he filed a grievance seeking "cold pay" is wholly
unconvincing as Mr. Eason, who appraised Mr. Benson, would have
benefitted if the grievance were successful (Tr. 29). Also, the
suggestion that Respondent demonstrated Union animus because Mr.
Ridley said DCA did not recognize the Union and/or that, ". . . we
don't know if we have a Union or not" (Tr. 28) and in denying Mr.
Benson official time for Union training, was refuted by testimony
that demonstrated that there had been a legitimate question of
representation (Tr. 50) and that his grievance seeking official
time for training was not sustained (Tr. 28). Indeed, Mr. Benson
had interjected that Respondent, notwith-standing its stated doubt
as to the Union's representative status, had continued to deduct
union dues (Tr. 20). Having considered the entire record, I find no
indication of Union animus.
Fifth, the suggestion that Mr. Eason sought to conceal the
awards to Messrs. Gann and Shiver for some improper motive when he
told them, as Mr. Shiver testified, Mr. Eason said,
"A (sic) Now, were you given any instruction when you received this award not to tell anybody
"A Yes, I was.
"Q And did he give a reason for that instruction?
"A He just said that there would be some controversy.
"Q -- just controversy.
"A Because everyone did not get it, he said." (Tr.
was refuted, first, by Mr. Shiver's admission that he was told
not to tell anyone about the award at the time he signed his
appraisal (G.C. Exh. 7) at which time the award had been
recommended but not approved (Tr. 43); and second, by Mr. Eason's
wholly credible testimony that he asked Messrs. Gann and Shiver not
to mention their recommended awards because, ". . . either the
previous year or a year prior to that . . . I had recommended . . .
[Benson and Shiver] for a cash award . . . And then I had to go
back and announce to them that they were not going to get the cash
award, and it caused controversy. . . ." (Tr. 60-61). Further, Mr.
Benson conceded that Respondent did not announce cash awards.
Finally, although a cash award had been given only in one prior
year in the meat department (to Mr. Gann), plainly in that instance
only one employee received an award out of two or more employees in
its meat department; and when Mr. Eason recommended Messrs. Benson
and Shiver for an award, presumably in 1991 (for the 1990-91
appraisal year), only two, of three, or more, employees, were
recommended for an award. Consequently the grant of awards to two
employees, out of four, in 1993 was wholly consistent with prior
General Counsel's argument that Respondent ". . . introduced
only weak evidence -- the testimony of Jimmie Burgess, its
Personnel Officer, located out of state at Maxwell Air Force Base,
Alabama (footnote omitted). Clearly available to Respondent was the
performance appraisals of all of the other commissary employees. If
those appraisals had supported Burgess's (sic) claim, Respondent
would have introduced them into evidence." (General Counsel's
Brief, pp. 11-12), is without merit and is rejected. As noted in
footnote 3, supra, General Counsel made no
objection to the examination of witnesses about 1991-92 ratings
without production of the appraisals. This included, not just Mr.
Burgess as General Counsel indicates, but, Mr. Benson (Tr. 33); Mr.
Burgess (Tr. 46, 47); Mr. Ridley (Tr. 51-52, 54, 55); and Mr. Eason
(Tr. 58-59). Moreover, General Counsel never requested any 1991-92
or 1992-93 appraisals. Having failed to object to testimony
concerning 1991-92 appraisals and having failed to request any
appraisals, General Counsel can not now complain of their absence.
I found Messrs. Burgess, Ridley and Eason credible witnesses and
fully credit their testimony.
Accordingly, I conclude that the preponderance of the evidence establishes that Respondent would have given Mr. Benson the same rating even in the absence of his protected conduct, Internal Revenue, supra, and further that the preponderance of the evidence demonstrates that there was a legitimate justification for its lowering Mr. Benson's rating and that it would have taken the same action even in the absence of protected activity, Letterkenny Army Depot, supra, and the complaint of violation of §§ 16(a)(1), (2) and (4) have not been sustained. Therefore, it is recommended that the Authority adopt t