[ v21 p698 ]
21:0698(88)CA
The decision of the Authority follows:
21 FLRA No. 88
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, COLUMBIA AREA OFFICE
COLUMBIA, SOUTH CAROLINA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 4-CA-40341
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority because of
exceptions filed by the Charging Party to the attached Decision of the
Administrative Law Judge. The issue concerns whether the Respondent
violated Section 7116(a)(1), (2) and (4) of the Federal Service
Labor-Management Relations Statute (the Statute) by failing and refusing
to select employee Flora Tewksbury for the position of Program Aide and
by issuing a Notice of Reduction-in-Force separating her from the
position of Occupancy Clerk because of her protected union activity.
The General Counsel filed no exceptions to the Judge's dismissal of the
complaint.
II. Background Facts
As the pertinent facts in this case are fully set forth in the
Judge's decision, they will be discussed only briefly. The Charging
Party has been certified as the exclusive bargaining representative of a
unit of all non-professional employees and a unit of all professional
employees who are assigned to the Respondent Activity. As found by the
Judge, it is undisputed that Flora Tewksbury was engaged in protected
union activities while employed by the Respondent and that much of her
representational duties, including a request to management for
information and the filing of charges as well as a grievance, occurred
between June 1983 and the spring of 1984. The Respondent, does not deny
its awareness of such activities. Further, as admitted by the
Respondent in its answer, Tewksbury was not selected on April 30, 1984,
for the position of Program Aide and was issued on or about May 23, l984
a Notice of Reduction-in-Force separation from the position of Occupancy
Clerk.
III. Judge's Decision
The Judge found that the Respondent did not violate section
7116(a)(1), (2) and (4) of the Statute either by abolishing an Occupancy
Clerk position held by unit employee Tewksbury which resulted in her
receiving a Reduction-in-Force notice terminating her employment or by
failing to select the employee for a Program Aide position. More
particularly, with respect to the separation of the employee from the
Occupancy Clerk position, the Judge, noting that no anti-unionism had
been shown to exist and that there had been no showing that any acts of
interference or coercion were directed against Tewksbury by the
Respondent, found that the evidence did not establish that such position
was abolished because of the employee's protected activities.
Concerning the non-selection of the employee for the Program Aide
position, the Judge similarly found that the evidence did not show that
Tewksbury's non-selection was discriminatory under the Statute, noting
in particular that management in fact accommodated the employee in the
performance of her representational functions. Therefore, the Judge
concluded that the General Counsel had not made out a prima facie case
of discrimination under section 7116(a)(1), (2) and (4) of the Statute,
and recommended dismissal of the complaint in its entirety.
IV. Positions of the Parties
The Charging Party's exceptions basically take issue with the Judge's
findings of fact and credibility determinations and disagree with his
conclusions. Thus, in its brief, the Charging Party argues that given
the conflict in testimony of Respondent's witnesses and the Judge's
failure to resolve it or to set forth any basis for his credibility
determinations, the testimony of Respondent's witnesses should have been
disregarded. No exceptions to the Judge's decision dismissing the
complaint were filed by the General Counsel.
V. Analysis
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 has 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 was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings. Accordingly, in agreement with the Judge and based on his
credibility resolutions and rationale, the Authority concludes that the
Respondent did not violate section 7116(a)(1),(2) and (4) of the Statute
by abolishing an Occupancy Clerk position held by unit employee
Tewksbury or by its failure to select that employee for a Program Aide
position.
VI. Conclusion
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision, the positions of
the parties and the entire record, and adopts the Judge's findings,
conclusions and recommended Order. The Authority therefore finds, in
agreement with the Judge, that General Counsel has failed to establish a
prima facie case of discrimination by the Respondent as to employee
Tewksbury based on her protected union activity under section
7116(a)(1), (2) and (4) of the Statute and will order the dismissal of
the complaint.
ORDER
IT IS ORDERED that the complaint in Case No. 4-CA-40341 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 9, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 4-CA-40341
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, COLUMBIA AREA
OFFICE
COLUMBIA, SOUTH CAROLINA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
William C. Cregar, Esquire
William E. House
For the Respondent
Linda Norwood, Esquire
Michael Cornfield, Esquire
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on July 27, 1984
by the Regional Director for the Federal Labor Relations Authority,
Region IV, a hearing was held before the undersigned on September 24,
1984 at Columbia, South Carolina.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It
is based on a first amended charge filed on July 20, 1984 by American
Federation of Government Employees, AFL-CIO (herein called the Union)
against Department of Housing and Urban Development, Columbia Area
Office, Columbia, South Carolina (herein called Respondent).
The Complaint alleged, in substance, that (a) on or about April 30,
1984 Respondent failed and refused to select Flora Tewksbury for the
position of Program Aide (typing), (b) on or about May 23, 1984
Respondent issued Flora Tewksbury a Notice of Reduction-in-force
separation from the position of Occupancy Clerk. It was further alleged
that Respondent engaged in such conduct because (a) Tewksbury engaged in
activities on behalf of the Union, (b) Tewksbury provided information
and/or gave testimony in proceedings before the Authority - all in
violation of Section 7116(a)(1), (2) and (4) of the Statute.
Respondent's Answer dated July 27, 1984, admitted that Tewksbury was
not selected on April 30, 1084 for the position of Program Aide. It
further admitted that on or about May 23, 1984 the agency issued the
employee a Notice of Reduction-in-force separation from the position of
Occupancy Clerk. However, Respondent denied it engaged in such conduct
for the reasons alleged in the Complaint, as well as the commission of
any unfair labor practices.
All parties were represented at the hearing. Each was afforded an
opportunity to be heard. to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At the times material herein the Union has been certified as the
exclusive bargaining representative of a unit of all non-professional
and a unit of all professional employees, with certain exclusions, who
are assigned to Department of Housing and Urban Development, Columbia
Area Office, Columbia, South Carolina, the Respondent herein.
2. At all times material herein the Union and the Respondent have
been parties to a collective bargaining agreement covering the employees
in the aforesaid units. This agreement was, by its terms, effective
from September 7, 1983 for a period of three years.
3. Respondent's Housing and Management Division is comprised of
three branches: Assisted Housing Management, Loan Management, and
Property Disposition. The Director of the Housing and Management
Division is William H. Nixon; Chief of the Loan Management Branch is
Arlena Esposito; and her Deputy is David Ball.
4. The Loan Management Branch is composed of three divisions:
multi-family, which monitors HUD insured and Farmers Home Insurance
projects; single-family, which monitors single-family homes that have
HUD mortgages; Title 1, handling defaulted mobile homes and home
improvement loans.
5. Record facts show that prior to September-October, 1982 there
were two voucher clerks in the Loan Management Branch. The voucher
clerk /1/ examines vouchers submitted from projects, reviews tenant
applications which accompany vouchers, and advises the project manager
re adjustments to be made to vouchers. Since one of the voucher clerks
felt the work was boring, supervisor Esposito suggested that the only
way to solve that problem would be to set up a Program Aide position.
6. Two Program Aide jobs were established by management in the fall
of 1982. The Program Aide position calls for more versatility than is
demanded of a voucher clerk. In addition to typing, the Program Aide
orders inspections on projects, examines financial statements, fills out
computer forms, and keeps time and attendance records. Esposito asked
Flora Tewksbury, who was a voucher clerk in the Loan Management Branch,
whether she would be interested in a Program Aide job if three of such
positions were established. Record testimony reflects that Tewksbury
declined the offer, saying she liked doing Section 8 /2/ vouchers.
7. While the record does not reflect the exact dates, Tewksbury
testified she was a secretary-treasurer of the Union in 1983. In June,
1983 the president of the Union herein, Marie W. Vevito, designated
Flora Tewksbury as Alternate Principal Representative - 2nd Alternate,
on behalf of the Union. For the next few months, Tewksbury used very
little official time. Upon assuming her role as alternate
representative this employee became more active in union affairs. On
August 10, 1983 she filed two different charges against Respondent
alleging a failure to furnish information to the Union; on September
19, 1983 Tewksbury filed a charge against the agency herein alleging a
unilateral reassignment of two employees without bargaining as to the
impact and implementation thereof with the Union; /3/ on October 6,
1983 she filed a charge, amended thereafter, to allege a denial by
Respondent to Tewksbury of a key card for access to the premises to
perform government related work; /4/ on March 16, 1984 Tewksbury filed
a charge against Respondent alleging a refusal to participate in
mediation sessions during contract negotiators. In addition to filing
the foregoing charges, Tewksbury filed a grievance against management on
November 22, 1983 for not having received an "outstanding" rating on her
performance during the past year.
8. In June, 1983 Tewksbury used about 10% of official time for
representational activities. Having become more active thereafter, her
use of such time advanced to 25%-30% through April, 1984. /5/
Tewksbury's workload was adjusted by management, at her request, on July
21, 1983, November 8, 1983 and December 12, 1983 due to her
representational duties. /6/
9. In a memorandum dated November 23, 1983 the Atlanta Regional
Office directed the Columbia Area Office to reduce its staff by 15
positions. Three positions to be abolished were to be from the Loan
Management Branch, and the decision as to which ones would be abolished
was left to Area Director Nixon.
10. After due consideration Nixon decided to recommend abolishing a
position from the technical field in both single and multi-family
sections. He decided not to cut the Program Aide position since it was
deemed a versatile one. Nixon recommended cutting the Occupancy Clerk
(Voucher) position since that clerk just handled vouchers. He concluded
that such a decision would be the best for the office as others could be
called upon to handle voucher work.
11. Two months later the Columbia area office was permitted to
increase its staff by five positions. It was decided to reestablish the
two Loan Specialist positions (single and multi-family), and to add a
financial analyst as well as a lead clerk. Nixon adhered to his
decision /7/ to abolish the Occupancy Clerk position due to a change in
the workload. Esposito, who conferred with Nixon in this regard,
testified that Tewksbury had been able to handle the bulk of Section 8
vouchers. However, new projects were coming in and some rent supplement
projects were converting to Section 8. The Loan Management Branch was
being assigned 47 projects from Assisted Housing, which were all Section
8, and there was a total of over 200 Section 8 projects. There was no
way for one person to handle all Section 8 vouchers. Thus, Esposito
suggested establishing a third Program Aide, assigning one to two Loan
Specialists. This would not involve crossing lines which occurred
between a Program Aide and the Occupancy Clerk. /8/ The Program Aide
would do everything in a certain defined territory for the loan
specialist, including the vouchers that fell in that territory.
12. On March 11, 1984 Yvonne Hall, Director of Administration,
called Alice Taylor, Vice-President of the union a former President
thereof. She asked the union official how the latter felt re staffing
of new positions. Taylor insisted it should, as in the past, be merit
staffed. Nixon, who intended to transfer Tewksbury laterally into this
position, was informed it should be so filled. In accordance therein
Hall sent over to Nixon the "best qualified" list of employees for the
additional position of Program Aide. Two applicants were qualified:
Flora Tewksbury and Margaret Brasington, who had been a Program Aide in
Assisted Housing previously. Neither the rating sheets nor the
supervisory appraisals for these employees was sent to Nixon. Further,
Taylor was not consulted re the selection of either employee for the
third Program Aide position.
13. Both Esposito and Nixon interviewed Tewksbury for the Program
Aide position. /9/ During the interview the employee mentioned she was
ready for a change; that she really liked working the Architectual and
Engineering Branch. When asked if she wanted the Program Aide job,
Tewksbury replied that she would take it but was anxious to gain
experience in another section. Nixon stated he had to know if Tewksbury
was interested in the position, and the employee said she did want to be
considered.
14. The record reflects that Nixon knew Tewksbury was rated "highly
satisfactory" /10/ in regard to her performance evaluation; that he
assumed she and Brasington were equal in ability and had about the same
rating. Based on the recommendation of Esposito and Ball, the Director
decided to choose Brasington for the Program Aide position. Esposito
testified she did not make a recommendation but that Nixon made the
selection. /11/ Nixon was advised by Esposito that Brasington was very
positive about wanting the job, and he concluded that Tewksbury had not
shown a decisive interest in same.
Nixon testified that both Tewksbury and Brasington were capable of
handling the Program Aide position. The record indicates management did
not reject Tewksbury on the ground that she was not qualified for the
job. The Director testified he chose Brasington because of her eager
desire, in contrast to Tewksbury, to become a Program Aide. He also
testified it was his "intention to transfer Tewksbury laterally into
that position. However, the Union reminded him it should be merit
staffed. Further, that Tewksbury's union activities played no part in
his non-selection of that employee for the position.
15. In and about April-May, 1984 Tewksbury was detailed to a GS-5
Title I clerical position where she remained until June 23. At the time
of the detail Taylor inquired of Esposito as to the reason therefor.
Taylor testified that Esposito informed her they needed a full-time
person to do vouchers; that it was Nixon's decision. While Esposito
testified in accord with Taylor that she told the latter the decision
was made by Nixon, the supervisor denied saying they needed a full-time
person to do vouchers. Record facts do show that Esposito did ask
Taylor, during Tewksbury's detail, how the latter was doing; that
Taylor suggested the supervisor could check the basket which contained
the finished work. Further, Esposito on a particular occasion inquired
whether Tewksbury was on union time and Taylor replied she had no
knowledge thereof.
16. On May 23, 1984 Tewksbury received a notice stating she would be
"riffed" on June 23. However, Respondent granted her a 45 day extension
until August 11 to perform certain Union duties involving representation
of employees. Subsequent to her being "riffed" on August 11, Tewksbury
was reemployed as a GS-4 clerk-typist in the Property Disposition
Branch.
Conclusions
The sole issue herein is whether Respondent abolished Flora
Tewksbury's position as Occupancy Clerk, as well as refused to select
her for a Program Aide position, because of her protected concerted
activity in violation of Section 7116(a)(1),(2) and (4) of the Statute.
General Counsel contends that, based on the record, a prima facie
case of discrimination has been established. It insists that, as set
down in Department of Transportation, Federal Aviation Administration,
Boston Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA
No. 67, the requisite factors to show such discriminatory action have
been proven. Thus, it is asserted that Tewksbury was engaged in
protected activities, i.e., requesting information from management,
filing of unfair labor practice charges, filing a grievance against the
agency, acting on behalf of unit employees; that such activities were
known to Respondent; and that such conduct was the basis for the action
taken by management toward said employee.
Record facts make it quite clear, and it is undisputed, that
Tewksbury engaged in protected concerted activity while employed by
Respondent. Further, the record reflects that much of her
representational duties, including a request of management for
information and the filing of charges as uell as a grievance, occurred
between June, 1983 and the spring of 1984. Moreover, it cannot be
gainsaid that management was aware of Tewksbury's activities as a union
representative, and there is no denial by Respondent thereof. In
respect to the basis for (1) the abolition of this employee's position
as Occupancy Clerk, and (2) the failure to select her as a third Program
Aide, the parties are in substantial disagreement. Conceding that
direct evidence of illegal motivation in the form of an admission,
declaration or the like, may not be apparent herein, General Counsel
submits that all the events warrant an inference of a discriminatory
motive. It is insisted that the various inconsistencies in the
testimony of Respondent's witnesses demonstrate the pretextual nature of
justification advanced by the agency for its conduct toward Tewksbury.
(1) In respect to the termination of the Occupancy Clerk position
held by this employee, the decision to abolish it stemmed from the
directive issue on November 23, 1983 by the Atlanta Regional office.
While it was left to Area Director Nixon to choose the positions to be
eliminated, the record indicates he abolished two loan management
positions as well as that of the Occupancy (Voucher) Clerk. Pointing to
the fact that the Loan Management positions were reestablished by Nixon
but not that of the Occupancy Clerk, it is argued that such omission is
significant in light of the increased representational duties performed
by Tewksbury at that period. Further, it is contended that Esposito
admitted she needed every one of her complement of employees and could
afford no cuts; that she needed someone to do vouchers 100% of the
time.
While it is true that the increase in Tewksbury's "protected
activity" was contemporaneous with the decision to abolish her position,
it does not follow that management decided to eliminate her job due to
such activity. No evidence appears in the record to support a
conclusion that either Esposito or Nixon opposed Tewksbury's union
activities or took steps to frustrate her representational function.
Contrariwise, management adjusted the employee's workload to accomodate
her union duties in July, November and December of 1983. Moreover,
Respondent had rated Tewksbury as "highly satisfactory" for the latest
period, i.e. November 1, 1982-October 31, 1983. The record reflects
that, in agreement with Esposito, Director Nixon conclused it would be
more efficient to establish a third Program Aide in lieu of having a
voucher clerk. Further, management decided a better staffing
arrangement called for having the Program Aide perform the duties of
said clerk and assign each Aide to two Loan Specialists with a defined
territory. One may disagree with Respondent's judgment in this respect
and deny that the alleged versatility of the Program Aide warrants the
addition of a third such position in place of the Occupancy Clerk.
However, it does not lie with others to substitute their views in regard
to efficiency of operations. Unless it is shown that Respondent's
action was a pretext for discriminatory motivation, one cannot fault an
employer for its determination concerning such operation.
Despite the fact that Tewksbury became more active after June, 1983
in performing her union duties, including the filing of a grievance and
unfair labor practice charges, I do not believe it has been shown that
her job as Occupancy Clerk was abolished because of such activities. No
anti-unionism has been shown to exist, nor were any acts of interference
or coercion directed against Tewksbury. The evidence does not support
an inference that her position was eliminated as a result of said
employee's union activities, and I conclude that Respondent did not
discriminate against Tewksbury by reason of such elimination in
violation of the Statute.
(2) Regarding Respondent's non-selection of Tewksbury as a Program
Aide in April, 1984, General Counsel adverts to several factors in
support of the contention that there was discriminatory motivation
therefor. It is maintained, inter alia, that said employee was very
well qualified for the position and capable of handling that work; that
while Margaret Brasington was rated "satisfactory," Tewksbury had a
higher performance rating; that Nixon had intended to transfer
Tewksbury laterally before the Union insisted upon merit staffing; that
Esposito and Nixon differed as to whether the latter was present at
Brasington's interview; and that said employee was selected on a
subjective basis.
Under other circumstances, which are not present herein, such factors
might be more persuasive in concluding that the failure to select
Tewksbury as a third Program Aide was illegally motivated. None of the
foregoing, however, militates against the conclusion that Respondent did
not base its decision in this regard upon Tewksbury's union or protected
concerted activities. Thus, while not disputing that said employee was
well qualified for the Program Aide position, management insists it
chose Brasington because she showed more interest in wanting the job.
The record supports the fact that, although Tewksbury asked to be
considered for the position, she did evince a desire to gain experience
in another area of work. Moreover, in 1982 this employee declined the
Program Aide position when asked if she'd be interested in the event an
additional Aide was established. It is true that management did not
examine the performance appraisals and ratings in making a selection.
However, one cannot substitute his judgment for that of the employer in
choosing the applicant even though the basis be subjective in nature.
Unless sufficient evidence appears in the record which reflects
significant anti-union animus, the undersigned would be reluctant to
conclude that the basis for Respondent's selection of Brasington, albeit
deemed to be subjective, is a pretextual one. As heretofore indicated,
Respondent never interfered with Tewksbury's representational functions
and, in fact, accommodated them. It has not been shown that management
-- despite having knowledge of her activities -- resented Tewksbury's
union activities or ever attempted to limit or restrain the employee in
performing them. Under these circumstances I am not persuaded that
Nixon's selection of Brasington over Tewksbury for the third Program
Aide position was due to the latter's concerted activities.
Accordingly, I conclude that the failure to so select Tewksbury has not
been shown to be discriminatory under the Statute.
Having concluded that General Counsel has failed to make out a prima
facie case of discrimination under Section 7116 (a)(1),(2) and (4) of
the Statute, based on the allegations herein, it is recommended that the
Authority issue the following:
ORDER
The Complaint in Case No. 4-CA-40341 be, and the same is hereby,
dismissed.
/s/ William Naimark
Administrative Law Judge
Dated: July 2, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Also designated as "Occupancy Clerk."
(2) This involved a very large funding program.
(3) This charge resulted in the issuance on October 31, 1983 of a
Complaint by the Regional Director, Region IV against Respondent.
(4) This charge resulted in the issuance on December 14, 1983 of a
Complaint by the Regional Director, Region IV against Respondent.
(5) On November 4, 1983, Tewksbury was designated by the Union
President as "Principal Union Representative."
(6) Under Article 7, Section 7.04 of the collective bargaining
agreement Tewksbury, in her position as "Principal Office
Representative" was entitled to 50% official time where the office has
100 or more employees.
(7) Although the decision to abolish the Occupancy (Voucher) Clerk
was made in December, 1983, the plan to do so -- as well as reestablish
other positions -- was not approved till April 2, 1984. The actual
notice of a reduction-in-force from this position was issued on May 23,
l984.
(8) Although Nixon testified he expected Tewksbury would bump someone
when this position was abolished, no other job existed on her
competitive level.
(9) While the testimony of the participants varies to some extent re
the particulars of the discussion, the undersigned sets forth the
credited version of the relevant portion.
(10) This employee was so rated during the period January
1982-October 31, 1982, and for the period November 1, 1982-October 31,
1983.
(11) While Nixon testified he was not present during the interview of
Brasington, Supervisor Esposito testified she conducted the interview
with the Director. Inasmuch as Nixon was made aware, in either
instance, that Brasington was more positive in wanting the position than
Tewksbury -- which was the basis for his selection of the former -- I do
not find it necessary to resolve this particular conflict in testimony,
or whether an explicit recommendation was made by Esposito.