Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts (Respondent) and American Federation of Government Employees, Local 3760, AFL-CIO (Charging Party) (Authority decision, September 24, 2003)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving unfair labor practice cases. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Boston quality office of the Social Security Administration faced two complaints about employee awards and union activity. The Authority adopted the judge's finding that a supervisor unlawfully discouraged employees from taking part in a union survey during the 2000 awards process. It also upheld dismissal of a separate claim that the supervisor retaliated against a union steward during the 2001 awards process. The evidence did not establish that the steward's union activity caused her to receive a smaller award. The office was ordered to stop interfering with protected activity and post a notice to employees.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(2), and 7118.
• Outcome: Violation found for the 2000 survey matter; 2001 award retaliation claim dismissed.
• Key point: Proven retaliation in one awards cycle did not establish retaliation in the next cycle without supporting evidence.

Full text (FLRA public release)

[ v59 p194 ]

59 FLRA No. 33

SOCIAL SECURITY ADMINISTRATION

REGIONAL OFFICE OF QUALITY ASSURANCE

BOSTON, MASSACHUSETTS

(Respondent)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES,

LOCAL 3760, AFL-CIO

(Charging Party)

BN-CA-00464

BN-CA-01-0433

_____

DECISION AND ORDER

September 24, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. Neither the Respondent nor the Charging Party filed an opposition.

In Case No. BN-CA-00464 the Judge found that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to nominate for an award any employee who participated in a Union-sponsored survey. [n1] The Judge recommended dismissing the complaint in Case No. BN-CA-01-0433, which alleges that a management official made a disparaging comment about an employee who was a Union steward, and discriminated against an employee in the awards process because the employee had engaged in protected activity by filing an unfair labor practice charge.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's decision in Case Nos. BN-CA-00464 and BN-CA-01-0433 and find that the Respondent violated the Statute as alleged in Case No. BN-CA-00464, but did not violate the Statute in Case No. BN-CA-01-0433.

II. Background

A. Case No. BN-CA-00464

The Respondent's Regional Office of Quality Assurance was divided into two branches, the Disability Quality Branch (DQB) and the Assistance and Insurance Program Quality Branch (AIPQB). Within each branch, team leaders (who are management officials) reviewed the work of six to eight bargaining unit employees. The DQB team leaders were Murphy, Siderski and Sullivan; the AIPQB team leaders were Kachichian and Fontaine. An employee, who became a Union steward on February 29, 2000, was on Murphy's team until October of 2000, when she became a member of Sullivan's team.

In March of 2000, the Union conducted a written survey of bargaining unit employees regarding their perception of whether various members of management had conducted themselves inappropriately. The steward in question had assisted in preparing the survey and was listed as one of the stewards to whom survey results were to be returned.

The survey results were promulgated on or about March 16, 2000. For purposes of these cases, the most significant survey inquiry indicated that 100% of the women and 40% of the men felt that Murphy had engaged in inappropriate behavior. Murphy had the second "lowest" score of all of the management representatives and the lowest score of the DQB team leaders. On March 29, 2000, thirteen bargaining unit members signed and sent a memorandum to the Union's national president criticizing the substance of the survey and the manner in which the results were published. Murphy obtained a copy of that memorandum and posted it on a wall in his office, together with the results of the survey. Subsequently, Murphy informed a Union official that "he was hurt by the survey." Decision at 7. The Judge found that those employees who entered Murphy's office saw the memorandum, which remained posted for up to 6 weeks, and "were otherwise aware of his displeasure." Id. at 9.

According to a Union official, Murphy stated that he would not submit a written nomination for anyone for an award who had anything to do with the survey. Murphy denied making the statement. However, neither Murphy nor any other team leader submitted written award nominations for that year. The Judge determined that Murphy made the statement as alleged to the steward [ v59 p195 ] and that the other members of the bargaining unit were subject to the coercive effects of Murphy's statement to the Union official and by the failure to submit written nominations by the team leaders, after a longstanding practice of making such nominations. Consequently, the Judge found that the Respondent violated the Statute.

No exceptions were filed regarding Case No. BN-CA-00464 and it will not be discussed further; the Order and Notice for this case are set forth below.

B. Case No. BN-CA-01-0433

In 2001, the awards panel again convened to consider awards nominations. The panel consisted of three management members (team leaders Murphy, Sullivan and Kachichian) and three Union members (Papik, Lawlor and Jokinen). The panel established ground rules under which an award would not be given to an employee if there was 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 negative vote. After additional discussion, the panel decided to establish a two tier system whereby award recipients would receive either $200 or $500. According to the testimony of the panel's management members, the panel decided that the determinative factor in making awards would be volunteer activity.

The panel then proceeded to consider the individual award nominations. When considering the award nomination for a Union steward, Lawlor proposed that she receive a $500 award. According to the Judge, there was a "divergence of testimony" about the deliberations of the panel regarding the Union steward's award nomination. Decision at 10. Lawlor made a claim that Murphy asserted that he could not support an award nomination for her because she had filed an unfair labor practice charge against him. Murphy denied making that statement, and stated he did not support the $500 amount because of the Union steward's lack of volunteer activity. Three other members of the panel denied that Murphy made the alleged statement about the employee's filing of an unfair labor practice charge, and confirmed that the panel's recommendation for the $200 award was based upon her level of volunteer activity.

Based on his resolution of the conflicting testimonies received at the hearing and the record evidence, the Judge concluded that the General Counsel had not established that the Respondent violated the Statute as alleged in Case No. BN-CA-01-0433.

III. General Counsel's Exceptions in Case No.

BN-CA-01-0433

A. Failure to Apply the Required Analytical Framework

The General Counsel contends that because the Judge did not set forth and apply the analytical framework to be applied to the allegation, his determination regarding Case No. BN-CA-01-0433 must fail. According to the General Counsel, that framework was originally set forth in Letterkenny Army Depot, 35 FLRA 113, 117-23 (1990) (Letterkenny) in which the Authority established the analytical framework it would follow in examining alleged violations of § 7116(a)(2) of the Statute. The General Counsel maintains that without the proper analytical framework, the Judge could not have determined whether the Respondent engaged in discriminatory or retaliatory actions. The General Counsel submits "that once the Authority applies all the relevant facts in the record to an appropriate legal analysis it will reach a different conclusion from that of the [Judge]." Exceptions at 23.

B. Failure to Consider and Apply Relevant Facts and Findings

The General Counsel argues that the Judge's decision confuses the facts of these cases, that there were two separate awards processes, and that there had been an ongoing history of unfair labor practice charges being filed when the 2001 awards process was conducted. The General Counsel argues that Murphy's awareness of the steward's involvement in the unfair labor practice charges "is undisputed, and his association of her with the complaint naming him is not only logical but highly likely[.]" Exceptions at 24.

The General Counsel contends that the Judge failed to scrutinize the testimony and evidence offered during this case. In particular, the General Counsel relies on the Papik testimony and the Judge's "incorrect assertion" that Papik agreed that the Steward did not deserve a $500 award. Id. According to the General Counsel, Papik clearly testified to the contrary.

Additionally, the General Counsel argues that the Judge did not consider his findings regarding Murphy's actions in 2000 in the analysis concerning Murphy's actions in 2001. The General Counsel states that the Judge "clearly discredited Murphy in [the 2000 case], but then implicitly credited him in [the 2001 case]. This turn in [the] tide is particularly curious[.]" Id. at 24. The General Counsel asserts that there had been considerable unfair labor practice activity during the year, some directly aimed at Murphy, and "yet the [Judge] [ v59 p196 ] somehow determined that Murphy was not likely to once again connect union activity to his detrimental actions in the next awards process in May 2001." Id. at 25.

Finally, the General Counsel argues that there is sufficient documentary evidence in the record to support its contention that an unfair labor practice was committed. The General Counsel points to information in the record regarding the steward's volunteer activity. The General Counsel also asserts that the Judge did not make a credibility determination regarding both the contemporaneous note made at the panel meeting by Lawlor or the post-meeting statement he wrote for the Union President. The General Counsel contends that "relevant information necessary to find discriminatory activity by Respondent is already in the record for the Authority to review." Id. at 27.

C. Failure to Find that a Coercive Statement was Made

The General Counsel challenges the Judge's finding that Murphy did not make the alleged coercive statement, and urges the Authority to review and overturn the Judge's credibility determination underlying this finding because that determination is not based upon witness demeanor. The General Counsel points to Lawlor's testimony, and the contemporaneous note made by Lawlor during the 2001 awards determination, in support of its belief that the alleged coercive statement was actually made, and emphasizes the reliability of Lawlor's testimony, his reputable character, and the absence of any personal gain on his part as reasons why Lawlor's version of the facts should be believed.

D. Failure to Find Discrimination and Retaliation

The General Counsel argues that the Respondent experienced unprecedented Union activity during the 2000 to 2001 period, for which the 2001 awards were given. The General Counsel also asserts that the Respondent knew of the steward's participation in these Union activities. The General Counsel contends that the timing of management actions may be significant in determining whether an employee's protected activity was a motivating factor in that action, and relies on United States Dept. of Veterans Affairs, Med. Ctr., Northampton, Mass., 51 FLRA 1520, 1528 (1996). The General Counsel further contends that "discriminatory motivation may be demonstrated by circumstantial as well as direct evidence" and relies on Dep't of the Treasury, United States Customs Serv., Region IV, Miami, Fla., 19 FLRA 956, 970 (1985). Exceptions at 33-34.

The General Counsel asserts that Murphy made anti-Union comments during both the 2000 and 2001 awards panel deliberations. The General Counsel contends that such comments in 2000 established that the Respondent had committed an unfair labor practice, and that the comments in 2001 directly linked the steward's protected Union activity to the lowered award she was given. The General Counsel argues that based on a complete review of the record, it has established that the steward's activity was protected and that this protected activity was a motivating factor in the awards outcome. Therefore, the General Counsel argues that the Authority should find that it established a prima facie case of discrimination.

The General Counsel next argues that the Respondent's attempts to establish an affirmative defense do not withstand scrutiny. The General Counsel asserts that Murphy's earlier anti-Union conduct in 2000 tainted the 2001 awards panel process. According to the General Counsel, Murphy, who was no longer the steward's team leader, "interjected himself into the deliberations at the outset, before others had a chance to weigh in, and vetoed a higher level award for [the steward]." Exceptions at 35. The General Counsel then argues that the Respondent's defense related to the steward's lack of extensive voluntary activity was pretextual.

The General Counsel also states that assuming arguendo, that volunteer activity was a determinative factor, the record does not support the Respondent's contention that the steward fell short in relation to her peers. The General Counsel maintains that the Respondent has not established that the steward did not deserve a higher level award. The General Counsel submits that the Respondent violated the Statute as alleged.

IV. Analysis and Conclusions in Case No.

BN-CA-01-0433

For the reasons set forth below, we find that the General Counsel has not established that the decision of the Administrative Law Judge in Case No. BN-CA-01-0433 was in error or that the Respondent violated the Statute as alleged.

A. The Judge did not Fail to Apply the Applicable Analytical Framework for Determining whether Respondent Engaged in Discriminatory or Retaliatory Actions

The Judge set forth the applicable analytical framework in his discussion of Case No. BN-CA-0464. The Judge cited 305th Air Mobility Wing, McGuire Air Force Base, N.J., 54 FLRA 1243, 1249 (1998), which [ v59 p197 ] sets forth and discusses the Letterkenny framework. [n2] See Decision at 12. While the Judge did not restate the framework in the discussion of Case No. BN-CA-01-0433, it is apparent from the decision that the Judge followed the framework in his analysis of Case No. BN-CA-01-0433.

Under Letterkenny, to prove a prima facie case under § 7116(a)(2), 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.

Letterkenny, 35 FLRA at 118.

Consistent with Letterkenny, the Judge examined whether the Respondent's actions were motivated by the protected activity of the Union representative in question. The Judge examined the record evidence and concluded that the alleged coercive statement had not been made. Decision at 10. The Judge also concluded that there was unrebutted testimony from one of the Union members of the performance award panel that agreed with Murphy and other panel members that the level of volunteer activity (the criterion by which award determinations were made) by the Union representative in question was not great enough to warrant the higher cash award. Decision at 10-11. Based upon consideration of the record evidence, the Judge concluded that the General Counsel had not proven its case by a preponderance of evidence. Decision at 11.

We find that the Judge's analysis examined whether or not the protected activity of the Union representative in question "was a motivating factor in the agency's treatment of the employee in connection with hiring, tenure, promotion, or other conditions of employment." Letterkenny, 35 FLRA at 118. As a result, the Judge did not fail to apply the applicable Letterkenny analytical framework for determining whether the Respondent engaged in discriminatory or retaliatory actions in violation of § 7116(a)(2) of the Statute. Accordingly, we deny the exception.

B. The Judge did not Fail to Consider and Apply Relevant Facts and Findings

The General Counsel has the burden of establishing by a preponderance of the evidence that the alleged unfair labor practice occurred. To support its contentions, the General Counsel relies on the Papik testimony and argues that Papik testified that the steward should receive the higher level award. However, a review of Papik's testimony reveals that Papik was not asked what award amount he thought the steward should receive, or whether he thought that the steward should receive the higher $500 award amount. See Hearing Transcript at 260 et seq. Moreover, the Judge noted that Papik concurred that the steward should receive the lower award amount. See Judge's Decision at 11. Thus, his testimony provides no support for the General Counsel.

The General Counsel also argues that based on the overall record and because the Judge found that Murphy violated the Statute regarding the 2000 award process, Murphy committed the unfair labor practice alleged here. However, neither the fact of this earlier unfair labor practice nor the record as a whole supports the General Counsel's contention that Murphy's action in the 2001 award process was similarly inappropriate.

We also find no basis for rejecting the Judge's credibility determination with respect to Murphy's testimony regarding the facts in this case just because he found Murphy not credible in the other case. Here the Judge relied on the testimony of other panel members who testified in support of Murphy's assertion that he (Murphy) did not make the statement in question in this case. In both instances the Judge evaluated the record evidence and determined, consistent with the evidence in each case, that Murphy was credible in one instance but not the other. Based on the record as a whole, we conclude that the Judge did not fail to consider and apply relevant facts and findings. See 24th Combat Support Group, Howard Air Force Base, Republic of Panama, 55 FLRA 273, 279 (1999). Accordingly, we deny this exception.

C. The Judge did not Improperly Find that the General Counsel Failed to Prove that a Coercive Statement was Made

According to the Judge's findings of fact, Lawlor testified that Murphy made the statement as alleged, but Murphy denied making the statement. The Judge also found that Papik stated that Murphy mentioned the steward's Union activity but did not mention filing the unfair labor practice charge. According to the Judge, [ v59 p198 ] Sullivan and Kachichian denied that Murphy made the statement and confirmed that the panel's recommendation for the lower of two award amounts was in fact based upon the steward's level of volunteer activity. [n3] See Judge's Decision at 10. [n4] After weighing the evidence, the Judge concluded that the General Counsel had not proven that Murphy made the alleged statement and that the basis for the steward receiving the lesser award recommendation was her volunteer activity.

The General Counsel asserts the Authority should rely solely on Lawlor's testimony, because he is reliable and trustworthy and has nothing to gain personally. However, two other employees, Sullivan and Kachichian, whose trustworthiness and reliability have not been questioned, stated that the statement was not made. See HT at 299-303, 417, 426. The General Counsel has provided no basis for the Authority to rely on one witness' testimony and ignore the testimony of others. The Judge had the opportunity to review all record evidence and his conclusions are supported by the record as a whole.

As the General Counsel has provided no grounds to overturn the Judge's findings of fact, or his decision to credit one witness' testimony over that of several other witnesses, we deny the exception.

D. The Judge did not Improperly Find that the General Counsel Failed to Prove that Discrimination and Retaliation Occurred

There is no dispute that the steward was engaged in protected activity while acting as a steward. However, the General Counsel fails to establish that the Respondent violated the Statute, as alleged.

The General Counsel argues that the timing of management actions is significant in determining whether an employee's protected activity was an improper motivating factor for an action taken by the Agency. The General Counsel asserts that Murphy made an anti-union comment during the 2000 award panel deliberations, and suggests that this same animus was exhibited during the 2001 award panel deliberations. However, the General Counsel offered no proof of animus other than an alleged comment which the Judge found unproven. An anti-union action in 2000 does not, by itself, establish that similar anti-union action occurred the subsequent year. As discussed above, the majority of those present for the 2001 awards panel deliberations testified that Murphy did not make the anti-union statements alleged at that meeting, and the Judge so found. See Decision at 10. Accordingly, we find no adequate basis to establish that the Respondent violated the Statute by retaliating against a steward for engaging in Union activities.

Further, as discussed above, the Judge found that Murphy did not make the anti-Union statement alleged. [n5] Therefore, we find no reason to overturn the Judge's finding that the steward's volunteer activity was the basis for her award in 2001 and the award of a lower amount was not in retaliation for her Union activities. Accordingly, we deny the General Counsel's exception.

E. Summary

The exceptions to the decision of the Administrative Law Judge in Case No. BN-CA-01-0433 are denied. We adopt the decision of the Administrative Law Judge in Case No. BN-CA-00464, as no exceptions were filed regarding that decision.

V. Order

Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations 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 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: [ v59 p199 ]

(a) Post at all locations at Social Security Administration, Regional Office of Quality Assurance, Boston copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Director of the Respondent and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced or covered by any other material.

(b) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has determined that the Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts has violated the Federal Service Labor-Management Relations Statute ("Statute") and has ordered us to post and abide by this Notice.

We hereby notify all employees in the collective bargaining unit that:

WE WILL NOT make any statements or take any 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.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights guaranteed by the Statute.

______

(Activity)

Dated:__ By:________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: 617-424-5730.

File 1: Authority's Decision in 59 FLRA No.
33

File 2: ALJ's Decision

Footnote # 1 for
59 FLRA No. 33

• Authority's Decision

In Case No. BN-CA-00464, only § 7116(a)(1) was listed in the complaint. However, as the Respondent does not allege that the § 7116(a)(2) violation was not fully and fairly litigated at the hearing, we adopt the Judge's finding of a violation.

Footnote # 2 for
59 FLRA No. 33

• Authority's Decision

See Letterkenny Army Depot, 35 FLRA 113, 117-23 (1990) (Letterkenny).

Footnote # 3 for
59 FLRA No. 33

• Authority's Decision

The other panel member, Jokinen, did not testify at the hearing.

Footnote # 4 for
59 FLRA No. 33

• Authority's Decision

The Judge mistakenly refers to Siderski as a member of the 2001 panel.

Footnote # 5 for
59 FLRA No. 33

• Authority's Decision

We note that Murphy could have, but did not, veto any award for the steward in question. The Judge found that awards would not be given in the face of a negative vote by any of the panel members. See Decision at 9.

Attached administrative law judge decision (FLRA public release)

[ v59 p200 ]

Office of Administrative Law Judges

SOCIAL SECURITY ADMINISTRATION

REGIONAL OFFICE OF QUALITY ASSURANCE BOSTON, MASSACHUSETTS

Respondent

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES,

LOCAL 3760, AFL-CIO

Charging Party

Case Nos. BN-CA-00464

BN-CA-01-0433

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

DECISION

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

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

Background

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:

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

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has determined that the Social Security Administration, Regional Office of Quality Assurance, Boston, Massachusetts has violated the Federal Service Labor-Management Relations Statute ("Statute") and has ordered us to post and abide by this Notice.

We hereby notify all employees in the collective bargaining unit that:

WE WILL NOT make any statements or take any 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.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights guaranteed by the Statute.

---

(Respondent/Activity)

Date:___By:___

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director for the Federal Labor Relations Authority, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston MA 02110-1200, and whose telephone number is: 617-424-5730.

File 1: Authority's Decision in 59 FLRA No. 33

File 2: ALJ's Decision

Footnote # 1 for
59 FLRA No. 33

• ALJ's Decision

The Back Pay Act, 5 U.S.C. §5596, authorizes monetary relief.

Footnote # 2 for
59 FLRA No. 33

• ALJ's Decision

The difference between the work assigned to each of the branches is not germane to the issues in these cases.

Footnote # 3 for
59 FLRA No. 33

• ALJ's Decision

Only the DQB Director had a lower score.

Footnote # 4 for
59 FLRA No. 33

• ALJ's Decision

There is no evidence as to whether the Union took any further action either in response to the memorandum or based upon the results of the survey.

Footnote # 5 for
59 FLRA No. 33

• ALJ's Decision

Murphy's office and those of the other Team Leaders were actually cubicles which were formed by dividers or "baffles" which did not extend from floor to ceiling.

Footnote # 6 for
59 FLRA No. 33

• ALJ's Decision

Murphy denied that the survey results were posted in his office but admitted that the memorandum remained posted for up to six weeks.

Footnote # 7 for
59 FLRA No. 33

• ALJ's Decision

The unfair labor practice charge in Case No. BN-CA-00464 was signed by Skayne and filed on May 23, 2000.

Footnote # 8 for
59 FLRA No. 33

• ALJ's Decision

Apparently none of the nominees was rejected altogether.

Footnote # 9 for
59 FLRA No. 33

• ALJ's Decision

Holmberg had also nominated herself.