[ v13 p481 ]
13:0481(85)CA
The decision of the Authority follows:
13 FLRA No. 85
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
ANDOVER SERVICE CENTER
ANDOVER, MASSACHUSETTS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 1-CA-563
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
Charging Party filed exceptions to the Judge's Decision, and the
Respondent filed an opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions and recommendations that the complaint
be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 1-CA-563, be, and it
hereby is, dismissed.
Issued, Washington, D.C., December 13, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
ANDOVER SERVICE CENTER
ANDOVER, MASSACHUSETTS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 1-CA-563
Robert F. Hermann, Esq.
For the Respondent
Barbara J. Collins, Esq.
For the Charging Party
Carol Waller Pope, Esq.
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S,C. 7101 et seq., as a result
of an unfair labor practice charge filed November 26, 1980, with the
Federal Labor Relations Authority. Consequently, on April 22, 1981, the
Regional Director issued a complaint alleging that the Department of the
Treasury, Internal Revenue Service, Andover Service Center (Respondent),
in violation of Section 7116(a)(1) and (2) of the Statute, by
discrimination discouraged membership in the National Treasury Employees
Union (NTEU or the Union) by refusing to promote Kathleen Demers in July
and August 1980, by refusing to grant her official time for the
preparation of a grievance and by keeping surveillance records of her
whereabouts at the Andover Service Center. Respondent denies the
allegations of the Complaint.
A hearing was held on July 7 and 8, 1981, at Andover, Massachusetts.
All parties were afforded full opportunity to examine witnesses, to
introduce evidence, and to file briefs. Upon the entire record,
including my observation of the witnesses and their demeanor, I make the
following findings, conclusions, and recommended order:
Findings of Fact
Kathleen Demers began her employment with the Andover Service Center
as a seasonal employee in January of 1969. After two promotions, she
resigned from her GS-4 tax examiner position in October 1971 to raise a
family. In January 1976 she was reinstated as a GS-2 seasonal clerk. A
year later she was promoted to a seasonal Grade 5 tax examiner in the
Returns Analysis Branch. In March 1979 she was selected and accepted a
voluntary downgrade to GS-4 clerk in order to gain permanent employment
status. To date, she continues to work in that same position as a GS-4
control clerk in the control unit of the Collection Branch.
The National Treasury Employees Union has been the exclusive
bargaining representative for bargaining unit employees at the Andover
Service Center since August 12, 1980. NTEU was certified on that date
after a consent election held on August 5, 1980. Prior to that
election, the American Federation of Government Employees (AFGE) was the
certified bargaining representative at the Andover Service Center.
In April 1978 Ms. Demers became actively involved in NTEU's campaign
to displace AFGE as the exclusive representative. During NTEU's
organizing campaign, AFGE filed an unfair labor practice charge against
NTEU in which Ms. Demers was specifically named. She, Gail Kenney,
Sheila Dunbar and Shirley Hall became the nucleus of NTEU at the Andover
Service Center. Their efforts on behalf of the Union were engaged in
openly and were known to the management of Respondent. Like Ms. Demers,
these three other women were selected in March and April 1979, by Branch
Chief Harry Thurston and through competitive promotion procedures, for
permanent GS-4 Control Clerk positions in the newly created Collections
Branch. They all worked under the supervision of Betty Benson. Ms.
Benson always evaluated Ms. Demers fairly and they had a good
employer-employee relationship. Eventually Ms. Kenney and Ms. Dunbar
left the unit when they received competitive promotions.
From February 1980 until she left the unit on June 23, 1980, /1/ Ms.
Benson counseled Ms. Demers on numerous occasions concerning the
utilization of official time, specifically her entitlement to official
time for purposes of representing employees in agency grievances and the
need for an accounting of her whereabouts while on official time. Ms.
Benson advised her that she was required to request supervisory
authorization in advance to utilize official time for agency grievances.
She was given a copy of the Agency Grievance Handbook and discussed
these regulations with Labor Relations Chief Jane Goldberg. Ms. Demers'
request for a written interpretation of the Handbook was refused.
Division Chief Thurston and Section Chief Eleanor McCann called Ms.
Benson on several occasions concerned that Ms. Demers was properly
utilizing her time according to the regulations. Ms. Benson did not
enjoy having to participate in the counseling sessions she was directed
to hold with Ms. Demers. At all times material to this case, Ms. Demers
was acting in her capacity as an individual when she represented
employees in agency grievances since NTEU had not as yet been certified
as the exclusive representative and the subject matter was not covered
by the AFGE contract in existence at that time.
Denial of Official Time
On July 14, 1980, Ms. Demers filed an agency grievance on behalf of
herself and all other Control Clerks in her unit protesting the transfer
of certain functions to the unit. Because Shirley Hall was Acting Unit
Supervisor and one of the grievants, Ms. Demers and Section Chief
Eleanor McCann agreed that the latter would hear the grievance.
At a meeting on the grievance on July 23, 1980, Ms. McCann stated
that the work in question was being performed by Control Clerks at other
Service Centers. Ms. Demers said that she doubted that was so but that
she would research the question. She asked Ms. McCann for the FTC
telephone numbers of the Service Centers she had spoken to and Ms.
McCann obliged. Ms. Demers then spent a total of two hours calling the
Service Centers and interviewing supervisors as to the procedures in
their units. /2/ She told Shirley Hall the purpose of extended
telephone use and, on one occasion, she gave Ms. McCann an update of her
findings before continuing her telephonic research. Ms. Demers charged
these two hours to official time on her time report for July 25, 1980.
She did not specifically request this official time in advance from
either Ms. Hall or Ms. McCann and therefore she was counseled by both of
them for misusing official time. She was told that the time had not
been properly requested and authorized in advance as required by the
Grievance Handbook. Over her protest, she was denied the two hours of
official time and she signed for two hours of annual leave.
Ms. Demers testified that she was confused as to the procedure for
requesting official time and that instructions from the Chief of Labor
Relations differed from what her immediate supervisor was telling her.
/3/ She had been denied official time on occasions prior to this
incident and, additionally, the unfair labor practice charge filed by
AFGE, which named her as an active participant, alleged that she had
been improperly utilizing official time to advance the NTEU cause to the
detriment of AFGE.
Record Keeping
On numerous occasions over the period January through July 1980, Ms.
Demers submitted various Freedom of Information Act (FOIA) requests to
Henry Comacho, the Service Center's Disclosure Officer. In April 1980,
Ms. Benson counseled her about spending too much time visiting Mr.
Comacho.
Prior to NTEU's August 12, 1980 certification, Compliance Division
Chief Ronald Savoca spoke to Mr. Comacho of his concern that Ms. Demers
was spending too much time away from her job visiting the Disclosure
Office. He asked Mr. Comacho to note each visit she made to his office,
indicating the time and purpose of the visit, and to give these notes to
Collection Branch Chief Thurston. Thereafter, for a two day period Mr.
Comacho made notes of this information in Ms. Demers' presence. After
two days, Mr.Thurston told him that the notes were not necessary and
that he should discontinue making them. Mr. Comacho had never been
asked to make such notes of other employees.
The July 1980 Selection
Ms. Demers applied for a promotion to the position of GS-5 Tax
Examiner (Accounts) in the Compliance Division, Examination Branch,
Correspondence Processing Section. Twenty-six employees applied for
this position, including Cheryll Daly and Kathy Philips who were also
Collection Branch Control Clerks. /4/ Since all three worked for Ms.
Benson, she prepared promotion performance appraisals for each and
thereafter, in her new position as Examination Branch Supervisor, she
was designated as the selecting official for the position.
A ranking panel of three supervisors evaluated the candidates and
determined those who were "highly qualified" and those who were "best
qualified". On July 9, 1980, Ms. Demers, Ms. Philips and Ms. Daly were
the three who were certified as "best qualified", with ranking scores of
65, 62 and 61, respectively.
Ms. Benson received the application materials for those rated "best
qualified" and she interviewed each candidate. On July 14, 1980, after
deliberating over a weekend, she selected Ms. Daly. She deliberated
over the weekend because she knew each of candidates well and she found
the choice to be difficult. She knew Ms. Demers to be an excellent
employee, who could work quickly, and who, in her opinion, deserved
promotion to the GS-6 level, let alone the GS-5 position which she had
to fill. However, after weighing the qualifications of all three, each
of whom she found to be excellent and hard working, she chose Ms. Daly
because she had the most IDRS /5/ experience and the greatest knowledge
of transaction codes.
The selection of Ms. Daly was made independently by Ms. Benson and
she consulted with no one concerning her deliberative process. She
stated, "If you are asking if any one coached me, or anyone told me I
could or could not select, this was totally my own decision. As a
matter of fact, I think they (management) markedly avoided the subject."
In her interview with Ms. Demers, the subject of her Union activities
did not come up and Ms. Benson did not consider her Union activities
when she made her selection for the position. /6/
The August 1980 Selection
On June 23, 1980, Respondent posted a vacancy announcement for the
GS-6 position of Tax Examiner in the Compliance Division, Collection
Branch, Taxpayer Delinquency Investigation (TDI) Unit I. Due to
unexpected retirements, the announcement was twice amended, finally to
reflect four vacancies and to extend the application deadline until July
21, 1980. A fifth vacancy occurred but was immediately filled by a
priority consideration candidate /7/ and therefore, the vacancy was
never posted. Another of the four vacancies was filled by priority
consideration and therefore, at the time of the selection, three
positions were vacant. /8/
Nineteen GS-3, 4 and 5 employees applied for the promotion and one
GS-6 employee applied for lateral reassignment. Each candidate was
evaluated by the appropriate supervisor and a panel of three supervisors
was convened to rank the candidates. Seven employees were certified to
the selecting official, Lois Earley, as "best qualified". Those
candidates and their scores were: Ms. Demers, 69; Maureen Ozoonian,
64; Peter Gallinaro, 58; Sandra Auger, 52; Hollyann Cochrane, 52;
Ida DiGrazia, 51; John Neal, 51.
Lois Earley received their application materials and interviewed each
candidate, including Jo Ellen Cooper who was applying for lateral
reassignment, and excluding Mr. Gallinaro who was interviewed by another
supervisor because of a vacation schedule conflict. She asked each
candidate the same questions at the interview. At the outset of the
interview with Ms. Earley, Ms. Demers mentioned that she had been
elected president of the Union, and Ms. Earley responded that she knew
and she congratulated Ms. Demers. /9/ That was the only reference to
the Union at the interview.
In making her selections, Ms. Earley attempted to choose individuals
who had particular skills and expertise which she considered to be
lacking in her unit at the time. On August 29, 1980, she selected Ms.
Cooper, Ms. Auger and Mr. Neal. Ms. Cooper was a lateral transfer who
was selected for her accounting related skills and her personable manner
which would be important for the many phone contacts with taxpayers
required by the job. Both Ms. Auger and Mr. Neal were from Entity
Control and, therefore, had experience with pension plans and exempt
organizations. In addition, Ms. Earley gave consideration to Mr. Neal's
collection experience in the private sector and his ability to make
effective use of the telephone. She did not question Ms. Demers'
ability to perform the work of the unit with proper training. She did
find those she selected to have greater experience in adjustments,
exempt organizations, pension plans and research than did Ms. Demers.
In addition, since the duties of the position required a great deal of
taxpayer telephone contact, Ms. Earley was concerned that Ms. Demers'
temperament was too volatile in that she had noticed that Ms. Demers is
explosive when she gets upset. /10/
Ms. Earley, who was once a union steward and who had held a
collateral assignment as an equal employment opportunity counselor, gave
no consideration to Ms. Demers' Union affiliation in making her
selections. She made her selections independently, without
communication or discussion with any other management official.
Discussion and Conclusions
Section 7102 of the Statute gives employees the "right to form, join,
or assist any labor organization, or to refrain from any such activity,
freely and without fear of penalty or reprisal." Interference by an
employer with those rights by discrimination in connection with hiring,
tenure, promotion or other conditions of employment is violative of
Section 7116(a)(1) and (2) of the Statute. However, the Statute does
not offer protection to employees participating in concerted activities
unrelated to membership in, or activities on behalf of a labor
organization. VA Med. Center, Bath, NY and AFGE Local 491, 4 FLRA No.
76 (1980).
The grievance filed by Ms. Demers on behalf of herself and other
employees was not filed under either a contractual grievance procedure
or the aegis of the Union. Neither were the various Freedom of
Information Act requests made to the Disclosure Office. In both
circumstances, Ms. Demers was acting only as a personal representative
and not in her capacity as a Union Official. Although the Union's
efforts to displace AFGE at the Andover Service Center were contested,
the record does not warrant any conclusion that Respondent has shown
animus against NTEU. The burden of proof is, of course, upon the
General Counsel to prove animus. That burden has not been satisfied in
this case by the mere reference to the decision of Judge Sternburg in
Internal Revenue Service Center, North Atlantic Service Center, Andover,
Massachusetts, Case No. 1-CA-269, (OALF-81-040) (January 30, 1981).
/11/ The events in that case took place at Respondent's Wilmington,
Massachusetts annex, and moreover, the Labor Relations Specialist at
Andover gave advice to the Wilmington official which was not
inconsistent with Respondent's Statutory obligations. Under these
circumstances, particularly where no animus is shown, the refusal to
grant official time and the notations made by the Disclosure Officer
cannot be violative of the Statute since Ms. Demers' activities in this
regard were unrelated to membership in, or activities on behalf of a
labor organization. Moreover, I note that Respondent's concerns over
Ms. Demers' whereabouts and her use of official time were born out of
its fear it could be charged by AFGE as the exclusive representative at
Andover. Hence, Respondent's actions in this connection have not been
shown to be other than at least facially lawful.
Although it is undisputed that Ms. Demers was engaged in protected
activity when she expended her efforts on behalf of NTEU in its
organizing campaign and it is undisputed that Respondent was aware of
those activities, the record is totally devoid of any evidence upon
which one might conclude that her nonselection for either promotion was,
in any way, motivated by her engagement in such protected activity.
Even if one were to find a mere suspicion of animus on the part of
Respondent, the fact remains that both selections were made by
supervisors who reached their decisions with deliberation, with no
consideration of Union affiliation or activity, and with total
independence from any other management official. Since there is not
even the proverbial scintilla of evidence to demonstrate that their
selections were in any way influenced by any one else, their testimony
alone becomes the focal point of analysis in this case. Having closely
observed their demeanor while they testified, I conclude that both Ms.
Benson and Ms. Earley were credible witnesses, that they based their
selections on rational considerations, and that those decisions were
made without regard to Ms. Demers' Union affiliation or activity.
For her part, there is no question that Ms. Demers is a bright,
energetic and capable employee who possesses qualifications requisite
for promotion. Both supervisors candidly admitted as much. There is
also no question that she has been an active, articulate advocate for
the Union. Those facts, taken with the fact that the promotion
selections were made in a time period surrounding a campaign and
election, provide a setting in which discrimination could take place.
However, a mere opportunity to act does not constitute evidence that
such action has taken place. In contrast to those facts which might be
found to be conducive to discriminatory conduct, the record also shows
that two other Union officials, who were active from the inception of
the NTEU campaign and who were selected with Ms. Demers for a downgrade
to achieve permanent employment status, successfully competed for
promotions from their GS-4 Control Clerk positions. Gail Kenney was
Treasurer, and Shiela Dunbar was the Executive Vice-President of the
Chapter and the chief steward. In addition, there is no question as to
the qualifications of those who were ultimately selected for the
promotions in question. Ms. Demers did have the highest score of those
who were rated as "best qualified" but those who were selected did
possess the qualifications necessary for promotion to the open job.
Regarding the July selection for the GS-5 job, there is no question that
Ms. Demers did have some IDRS experience and that she did have knowledge
of transaction codes; however, Ms. Benson's finding that Ms. Daly had
the most IDRS experience and the greatest knowledge of transaction codes
is unrebutted on the record. Similarly, in regard to the August
selection, there is no question that Ms. Demers had a breadth of
experience which would qualify her for the job but, unrebutted on the
record was Ms. Earley's assertion that the other candidates had greater
experience and expertise in those areas in which her section was, at
that time, deficient. Also, having observed Ms. Demers' demeanor, as
noted in footnote 10, Supra, I cannot say that Ms. Earley's concern
about temperamental volatility was unfounded. In short, I conclude that
the July and August promotion selections were not based on any unlawful
considerations. Accordingly, I recommend that the Authority adopt the
following:
ORDER
ORDERED, that the Complaint in Case No. 1-CA-563 is dismissed.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: October 29, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ The Charging Party excepted to certain credibility findings made
by the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution is incorrect. The Authority has examined the record
carefully and finds no basis for reversing the Judge's credibility
findings.
/1/ The General Counsel excepted to the Judge's failure to make a
credibility determination as to whether the Respondent had expressly
advised the Union on January 13 and January 28, 1981, that further
changes in the Affirmative Action Plan might be made. The Judge
concluded that the agreement reached on January 28, 1981, was tentative,
contingent upon approval by the senior installation Commander. This
conclusion was based on the facts that the usual "Memorandum of
Agreement" was not offered to the Union at that time, nor did
Respondent's Labor Relations Officer sign for management, as was
customary. The Authority agrees with the Judge's conclusion, which is
supported by record facts irrespective of the credibility resolution,
and therefore denies the General Counsel's exception.
/1/ Ms. Benson was promoted to another supervisory position in the
Examination Branch, Audit Correspondence Section.
/2/ Ms. Demers' desk was within 30 feet of Ms. McCann's.
/3/ The nature of the alleged discrepancy was not brought out on the
record.
/4/ At this point in time, the only other person who had taken a
downgrade with Ms. Demers and who had not been promoted was Shirley
Hall.
/5/ Integrated Data Retrieval System.
/6/ Findings made as to Ms. Benson's deliberative process and
selection are based on her testimony and, as there is no contradictory
objective evidence in the record, the findings are based on her
credibility. I found her to be composed, straightforward, candid and
totally credible.
/7/ Priority consideration is given to employees whose job is either
abolished or downgraded. Without regard to actual qualifications, they
are eligible for consideration for any position which would allow them
to maintain their salaries at comparable levels provided that they have
demonstrated the potential to be trained for the new job for which they
apply.
/8/ Although the record was somewhat clouded by the revelation that
one of the three chosen candidates actually went to the TDI II Unit
instead of TDI I, this was apparently because Unit II's supervisor was
on leave and therefore, the Unit II supervisor was the selecting
official for all existing vacancies in both units.
/9/ On direct, Ms. Demers testified: " . . . the interview opened on
her congratulating me on becoming the acting president of the chapter .
. ." From this, Counsel for the General Counsel argues that it was Ms.
Earley who brought up the subject of the Union election and that Ms.
Earley's testimony, that Ms. Demers brought up the subject, should not
be believed. I credit Ms. Earley's testimony based on her demeanor; I
found her to be sincere and candid. Moreover, there was no rebuttal
evidence which would contradict her version of the events, nor was Ms.
Demers' direct testimony squarely contradictory.
/10/ Although Ms. Earley could not give specific examples of Ms.
Demers' behavior and although she has not observed her in a supervisory
capacity, I credit her testimony in this regard. I do so not only based
on her demeanor and her general opportunity to observe Ms. Demers, but
also on Ms. Demers' demeanor while testifying. Although she was quite
calm and deliberate when she began her testimony, Ms. Demers gradually
became more agitated, although controlled, as her examination continued.
As her breathing became heavier she appeared to be making a concerted
effort to restrain herself. On several occasions she could be heard
muttering under her breath to herself.
/11/ On brief, the Charging Party alleges that "the IRS worked to
discourage employees from supporting NTEU." However, that allegation is
not referenced to the transcript in this case, nor do I find any support
in the record for it. The Charging Party's reference to a case
involving the Boston District Office does not, by itself, evidence
animus where no nexus is shown between the facts in that case and those
in this one.