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104 LRP 10740
Social Security Administration, Office of Hearings and Appeals and
Association of Administrative Law Judges, International Federation of
Professional and Technical Engineers
Federal Labor Relations Authority
59 FLRA No. 130
BN-CA-02-0206
March 4, 2004
Related Index Numbers
72.27 Domination or Support of Union, Discrimination Related to Union
Membership or Concerted Activity
72.324 Discrimination Related to Union Membership or Concerted Activity,
Basis of Discrimination, Participation in Union Activities
72.3 Discrimination Related to Union Membership or Concerted Activity
72.35 Discrimination Related to Union Membership or Concerted Activity, Defenses
Against Charge of Discrimination Appealed from 104 LRP 10742
Ruling
The agency discriminated against an administrative law judge because of her
union activities, the FLRA ruled. The FLRA ordered the agency to reinstate the
judge to her previous position of acting hearing office chief administrative law
judge.
Meaning
Although the ALJ was unable to complete her job duties due to her union
activities, the FLRA decided the agency's action was a clear violation of 5 USC
7116(a)(1) and (2). The agency committed an unfair labor practice because it
interfered with, restrained, or coerced any employee in the exercise of her
right of union activities.
Case Summary
The agency filed exceptions to an FLRA administrative law judge's decision. The
ALJ found that the agency violated 5 USC 7116(a)(1) and (2) when it removed an
ALJ, who was also a regional vice president of the union, from her position of
acting hearing office chief administrative law judge. The FLRA adopted the
FLRA's ALJ's decision and ordered the agency to reinstate the ALJ to her
position.
The agency argued that the ALJ was removed from her previous position because
she was unable to finish her case load. The agency felt this was because of a
conflict of interest with her union activities. The judge's number of undecided
cases was greater than any other judge in the office. Also statute did not
permit a person to "simultaneously serve as a supervisor and participate in the
management of a labor organization."
The FLRA ALJ found the agency did not say or do anything that "could reasonably
be construed as interfering with, restraining, or coercing protected activity"
as defined in the statute. However, the FLRA ALJ decided the judge's removal was
"motivated by her protected activity." The FLRA ALJ stated that statutory
language clearly explained that "employees are protected, not only with regard
to joining a union, but also in their activities in support of the union." The
FLRA ALJ found the judge did not actually have to perform supervisory duties
while serving in her previous position.
The FLRA agreed. It ordered the agency to cease and desist from
discriminating against union officials and restate the judge to her previous
position.
Judge / Administrative Officer
Dale Cabaniss, Carol Waller Pope and Tony Armendariz
Full Text
DECISION AND ORDER
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 (FLRA ALJ) filed by the
Respondent.
The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the
Federal Service Labor-Management Relations Statute (Statute) by denigrating the
activities of a bargaining unit member on behalf of the Union and by removing
this member, who is employed as an Administrative Law Judge and serves as the
Union's Regional Vice President (Judge), from the position of Acting Hearing
Office Chief Administrative Law Judge (Acting HOCALJ) because of her Union
activities. The FLRA ALJ found that the
Respondent violated § 7116(a)(1) and (2) of the Statute by removing the Judge
from the position of Acting HOCALJ because she was a Union officer.
Upon consideration of the FLRA ALJ's decision and the entire record, we adopt
the FLRA ALJ's findings, conclusions, and recommended Order consistent with our
discussion below.
II. Background and Judge's Decision
The Union represents a unit composed of Administrative Law Judges (Judges)
!./ Each judge is assigned to a hearing office (HO) where he or she
adjudicates claims for benefitsrunder the Social Security Act. Each HO is headed
by a Hearing Office Chief Administrative Law Judge (HOCALJ) who is in overall
charge of its functioning. The majority of the HOCALJ's time is spent in
activities identical to those of other judges. The duties of the HOCALJ are set
forth in a revised amendment to the position description for all of the judges
employed by the Respondent. The HOCALJ is the first line supervisor of the other
judges; however, his or her authority is limited by provisions of the
Administrative Procedure Act (APA) which assures judicial independence and
exempts judges from performance reviews that are given other Federal employees.
ALJ Decision at 5. "[I]t is a universal practice for the HOCALJ to appoint one
of the [judges] as the Acting HOCALJ." Id. at 6.
In the Bronx Hearing Office, which is involved in this dispute, one judge is
appointed Acting HOCALJ on a more or less permanent basis. In 1994, the HOCALJ
in the Bronx Office appointed the judge who is the subject of this unfair labor
practice as Acting HOCALJ. In this capacity, she would perform the duties of the
HOCALJ in his absence, which involved signing time sheets and leave slips and
occasionally participating in telephone conferences. The Acting HOCALJ would
also be available to respond to inquiries from higher levels within OHA or from
outside sources. The Acting HOCALJ never had to respond to violent incidents
involving employees or others; never had to represent the Respondent in labor
relations matters, and was never involved in disciplinary proceedings against
another judge, although she once informally criticized or reprimanded another
judge.
In 1999, the Judge was elected as a Regional Vice President of the Union and in
this capacity was entitled to take official time to conduct union business at or
away from the facility. When official time was needed, the Judge would submit
leave forms to the HOCALJ. Although the Judge considered running for the office
of Union treasurer, she later changed her mind. Furthermore, the Judge's
position as a Union official did not excuse her from her normal duties as a
judge.
In his decision, the FLRA ALJ cited the standard for determining whether an
employer's actions have a coercive effect that is prohibited by § 7116(a)(1) of
the Statute, and the standard for determining whether an employer engaged in
discrimination within the meaning of § 7116 (a) (2) of the Statute as set forth
in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny) and its
progeny.
Applying these standards, the FLRA ALJ found that on the morning of June 27,
2001, when the Judge was preparing to travel on Union business, the HOCALJ
called her into his office to discuss the fact that she had a large number of
cases awaiting decisions at the end of the reporting period. At that time, this
number was greater than any other judge in the office. The FLRA ALJ found that
there was a "substantial divergence in the testimony as to the atmosphere of the
meeting as well as the actions of the HOCALJ and [the Judge]." ALJ Decision at
8. According to the FLRA ALJ, the evidence concerning the events of the June 27
meeting was not clear. However, the FLRA ALJ found that while the HOCALJ might
have over-reacted when the Judge said she could not decide the requested number
of aged cases in a week, he did not say anything derogatory about her protected
activities. The FLRA ALJ concluded that the evidence did not establish that the
HOCALJ "said or did anything that could reasonably be construed as interfering
with, restraining, or coercing protected activity withing the meaning of §
7116(a)(1) of the Statute." Id. at 9. Thus, he concluded that the Respondent did
not violate § 7116(a)(1) of the Statute as a result of the HOCALJ's conduct at
the meeting on June 27.
Concerning the removal of the Judge as Acting HOCALJ, the FLRA ALJ found that
the Respondent did not deny that the Judge was removed as Acting HOCALJ because
of a perceived conflict of interest due to her position as a Union Vice
President. The FLRA ALJ found that the Respondent's action in doing so, "in
spite of [its] attempts to justify it, was a clear violation of § 7116(a)(1) and
(2) of the Statute. The FLRA ALJ found that the HOCALJ's "unequivocal statement
of the reason for . . . removal [left] no doubt that
it was motivated by her protected activity." Id. at 11.
The FLRA ALJ cited § 7102 of the Statute, which provides that:
Each employee shall have the right to form, join, or assist any labor
organization . . . such right includes the right --
(1) to act for a labor organization in the capacity of a representative ..
The FLRA ALJ then stated that the "clear meaning of the statutory language is
that employees are protected, not only with regard to joining a union, but also
in their activities in support of the union." ALJ Decision at 11. The FLRA ALJ
found that the Judge was discriminated against because she was a Union officer
and that the Respondent's arguments that the removal was justified were
"unpersuasive." Id. The FLRA ALJ found that the conflict of interest upon which
the Respondent relied was "highly conjectural." Id. In
this regard, the FLRA ALJ found that the Respondent did not challenge the
Judge's testimony that, in the approximately seven years during which she was
Acting HOCALJ, she never had to represent the Respondent in labor relations
matters and only once informally reprimanded another judge. The FLRA ALJ found
that: (1) the Judge's activities as Acting HOCALJ generally involved signing
leave requests and time sheets and occasionally participating in conference
calls; and (2) more sensitive matters could be referred to the Regional Office
or could await the HOCALJ's return.
The Respondent relied on certain Authority decisions to justify its conflict of
interest defense. However, the FLRA ALJ found that these decisions, including
Dep't of Health, Education and Welfare, Region VIII, Denver, Colorado, Social
Security Admin., Region VIII, Denver, Colorado, and Social Security Admin.,
Denver District, Denver, Colorado, 6 FLRA 628 (1981) (HEW) , in which the
Authority found that there was an inherent and irresolvable conflict between an
employee's position and the position of EEO Counselor for which he had applied,
were distinguishable from the instant case. In particular, the FLRA ALJ stated
that there was a "clear distinction" between HEW and the situation in this case
where the duties of the Acting HOCALJ are both temporary and "almost exclusively
administrative." Id. 13.
The FLRA ALJ rejected the Respondent's reliance on § 7120(e) of the Statute.2/
The FLRA ALJ found that the Respondent had not supported its claim that a
conflict existed between the Judge's Union position and the Acting HOCALJ
position because the conflict of interest, "if any, [wa]s far from clear." Id.
The FLRA ALJ also found that because of the increased stature associated with
the Acting HOCALJ position and its effect on the incumbent's prospects for
promotion, the selection of the Acting HOCALJ was a condition of employment
within the meaning of § 7103(a)(14) of the
Statute.
In concluding, the FLRA ALJ found that the Judge's removal from the Acting
HOCALJ position had the reasonably foreseeable effect of discouraging protected
activity and constituted unlawful discrimination. The FLRA ALJ found that the
"Respondent's action was not justified and would not have occurred were it not
for [the Judge's] protected activity." Jd. at 14. Accordingly, the FLRA ALJ
concluded that the Respondent violated §7116(a)(1) and (2) of the Statute by
removing the Judge from the position of Acting HOCALJ because she was a Union
officer. As a remedy, the FLRA ALJ recommended that the Respondent be ordered to
offer the Judge reinstatement to the Acting HOCALJ position.
Ill. Positions of the Parties
A. Respondent's Exceptions
First, the Respondent asserts that the FLRA ALJ's decision requires the Agency
to violate § 7120 (e) of the Statute. According to the Respondent, the language
of § 7120(e) is clear that no person can simultaneously serve as a supervisor
and participate in the management of a labor organization. The Respondent
contends that it showed that the Judge was a supervisor whenever she served as
Acting HOCALJ and that she actively participated in the management of the Union
at the same time. The Respondent contends that the FLRA ALJ "made much of the
fact that the Judge . . . did not actually have to perform such supervisory
duties as responding to a violent incident involving employees and never
actually disciplined employees." Exceptions at 7 n.2. However, according to the
Respondent, as Acting HOCALJ the Judge had the authority to perform these
supervisory duties and "a supervisor is always a supervisor regardless of
whether he/she performs supervisory duties for a particular day, week or
months." Id.
The Respondent argues that under § 7120(e), "it is not necessary to show that
there was an actual or potential conflict of interest. The first part of the
section clearly prohibits any manager, any supervisor, or any confidential
employee from participating in the management of a labor organization."
Exceptions at 7 (emphasis omitted). In support of its argument, the Respondent
cites Bernsen v. FLRA, 203 F.3d 51 (B.C. Cir. 1999) and AFGE, Local 2513,
AFL-CIO v. FLRA, 834 F.2d 174 (B.C. Cir. 1987), and argues that these cases
support a "per se rule which bars managers, supervisor[s] and confidential
employees from participating in the management of a labor organization." Id. at
8. The Respondent argues, therefore, that the FLRA ALJ's order requiring the
Judge to be reinstated to the position of Acting HOCALJ would cause the
Respondent to violate § 7120 (e) because it would permit the Judge to
simultaneously serve as a Union official and as Acting HOCALJ.
Secondly, the Respondent contends that the Acting HOCALJ is a supervisor as
defined by § 7103(a)(10) of the Statute and therefore is not an employee under §
7103(2) (B) (iii) . Thus, the Respondent argues that the FLRA ALJ erred by
considering the Acting HOCALJ as an employee under the Statute.
B. General Counsel's Opposition
The General Counsel disputes the Respondent's claim that the Judge was a
supervisor whenever she served as Acting HOCALJ. The General Counsel asserts
that the FLRA ALJ properly found that the temporary role of the Acting HOCALJ
has "limited, ministerial duties, such as signing leave slips, and occasionally
participating in conference calls[,]" and did not meet the statutory definition
of supervisor. Opposition at 4. Therefore, according to the General Counsel, the
Judge remained an employee while she served in the role of Acting HOCALJ and did
not loose the protection of the Statute.
The General Counsel asserts that the FLRA ALJ properly concluded that §7120(e)
of the Statute did not prohibit the Judge from serving in the role of Acting
HOCALJ. The General Counsel contends that the Respondent applied an incorrect
standard in determining whether the proscription in § 7120 (e) applies. The
General Counsel asserts that § 7120(e) prohibits participation in a labor
organization by a "supervisor" if the participation or activity would result in
a conflict or apparent conflict of interest. According to the General Counsel,
the FLRA ALJ correctly applied the proper standard in
determining whether there was a conflict of interest and properly concluded that
there was no conflict of interest when this Judge served as Acting HOCALJ.
IV. Analysis and Conclusions
The FLRA ALJ Properly Concluded that the Respondent Violated § 7116(a)(1) and
(2) of the Statute by Removing a Judge from the Position of Acting HOCALJ
because of her Status as a Union Officer
Section 7116(a)(1) of the Statute provides that it shall be an unfair labor
practice for an agency to interfere with, restrain, or coerce any employee in
the exercise of any right provided by the Statute. Section 7102 of the Statute
sets forth certain employee rights including the right to form, join, or assist
any labor organization freely and without fear of penalty or reprisal and that
each employee shall be protected in the exercise of such right. Such right
includes the right to act for a labor organization in the
capacity of a representative. Section 7116(a)(2) of the Statute provides that it
shall be an unfair labor practice for an agency to encourage or discourage
membership in any labor organization by discrimination in connection with
hiring, tenure, promotion, or other conditions of employment.
The framework for resolving complaints of alleged discrimination under
§7116(a)(2) of the Statute is set forth in Letterkenny, 35 FLRA at 117-123, and
its progeny. Under this framework, the General Counsel must prove by a
preponderance of the evidence that: (1) the employee against whom the alleged
discriminatory action was taken was engaged in protected activity; and (2) such
activity was a motivating factor in the agency's treatment of the employee in
connection with hiring, tenure, promotion, or other conditions of employment. If
the General Counsel presents a prima facie case
of unlawful discrimination, the Respondent has the burden to establish, by a
preponderance of the evidence, as an affirmative defense that: (1) there was a
legitimate justification for its action; and (2) the same action would have been
taken even in the absence of protected activity. Dep't of the Air Force, Warner
Robins Air Logistics Center, Warner Robins Air Force Base, Georgia, 52 FLRA 602,
605 (1996) .
Applying the Letterkenny framework, the FLRA ALJ found that the General Counsel
had established a prima facie case that the Respondent had violated § 7116(a)(1)
and (2) of the Statute by removing this Judge from the position of Acting HOCALJ
because of her status as an officer of the Union. The FLRA ALJ found that the
General Counsel satisfied the threshold burden of showing
that consideration of the Judge's status as a Union officer was a motivating
factor in the Respondent's removal of the Judge. The Respondent does not dispute
the FLRA ALJ's finding, which we adopt, that the Judge's status as a Union
officer was a motivating factor in its decision to remove her from the position.
Rather, the Respondent takes issue with the FLRA ALJ's rejection of its
affirmative defense that there was legitimate justification for the
action. According to the Respondent, in her capacity as Acting HOCALJ, the Judge
was a supervisor. The Respondent argues, therefore, that it demonstrated a
legitimate justification for its action because an actual or perceived conflict
of interest was posed by her acting as a supervisor while also serving as Vice
President of the Union.
Under § 7120(e) of the Statute, "management officials, supervisors, and
confidential employees are expressly prohibited from participating in the
management of a labor organization." United States Dep't of the Air Force, 913th
Air Wing, Willow Grove Air Reserve Station, Pennsylvania, 58 FLRA 516, 518
(2003). In the instant case, the FLRA ALJ's factual findings show that as Acting
HOCALJ, the Judge served as a "temporary stand-in for the HOCALJ." ALJ Decision
at 12. It is also uncontroverted that in the approximately seven years that she
served in this capacity, "she never had to represent the Respondent in a labor
relations matter and only once informally reprimanded an ALJ." Id. at 11-12. The
FLRA ALJ's factual findings further reveal that this Judge's activities as
Acting HOCALJ generally involved signing leave requests and time sheets and
occasionally participating in conference calls; more sensitive matters "could be
referred to the
Regional Office or could await [the HOCALJ's] return." Id. at 12.
These findings show that this Judge's duties as Acting HOCALJ were more routine
in nature and did not require the consistent exercise of independent judgment.
See, e.g., General Services Admin., Region 2, New York, New York, 54 FLRA 864,
874-77 (1998) (GSA) (record established that employee did not exercise any
supervisory authority and, therefore, employee was not a supervisor; National
Treasury Employees Union, 53 FLRA 1541, 1553 (1998) (NTEU) (ethics counselor's
duties did not require the exercise of independent judgment; United States Small
Business Administration District Office/ Casper, Wyoming, 49 FLRA 1051, 1060
(1994) (team leader was not a supervisor, despite the fact that he had issued a
warning letter to an employee). Accordingly, because the FLRA ALJ's factual
findings demonstrate that this Judge's duties as Acting HOCALJ did not require
the consistent exercise of independent judgment, she was not a supervisor within
the meaning of § 7103(a)(10) of the Statute and, therefore, no conflict of
interest under § 7120(e) of the Statute could occur on this basis.
Nor is there any other basis for finding that a conflict or apparent
conflict of interest exists in this case because of the employee's status as a
Union officer and the duties she performed as a "temporary stand-in" for the
HOCALJ. ALJ Decision at 12. As the FLRA ALJ found, the Respondent has failed to
establish that this Judge's status as a Union officer was inconsistent with the
performance of her duties as Acting HOCALJ, which were temporary and during
which she never represented management in a labor relations matter and sensitive
matters could be referred to the Regional Office or could await the HOCALJ's
return. Also, the fact that the Judge signed leave requests while serving as
Acting HOCALJ does not, in itself, establish that the Judge was acting in the
capacity of a supervisor. See GSA, 54 FLRA at 877 (the exercise of authority to
disapprove/approve leave requests does not, itself, establish that an individual
is a supervisor). Under these particular circumstances, the Respondent has not
established that a conflict or apparent conflict of interest existed.
Accordingly, the Respondent has failed to demonstrate a legitimate justification
for its action in removing the Judge from the Acting HOCALJ position.
It is also noted that this case is distinguishable from HEW, 6 FLRA at 638,
where the Authority found that an agency did not violate the Statute by
terminating the appointment of a union vice president as an equal employment
opportunity officer. In that case, the Authority noted no evidence of anti-union
motivation, the legitimacy of the anticipated conflict of interest based on the
duties of the dual positions was clear, and agency policy precluded high ranking
union officials from serving as an EEO counselor. Unlike HEW, there is no agency
policy precluding union officials from serving in the disputed position in this
case, nor has the Respondent pointed to anything in the record that demonstrates
a clear inherent conflict of interest.
V. Order
Pursuant to section 2423.41 of our Regulations and § 7118 of the Federal Service
Labor-Management Relations Statute, the Social Security Administration, Office
of Hearings and Appeals, shall:
1. Cease and desist from:
(a) Discriminating against Judge Robin Arzt, or any other Administrative Law
Judge in the bargaining unit, by removing her from or refusing to appoint her to
the position of Acting Hearing Office Chief Administrative Law Judge on account
of her position as a union officer or because of any other activity protected by
the Federal Service Labor-Management Relations Statute (the Statute).
(b) Interfering with, restraining or coercing its employees in the exercise of
their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and
policies of the Statute:
(a) Offer Judge Robin Arzt reinstatement to the position of Acting Hearing
Office Chief Administrative Law Judge in the Bronx, New York Hearing Office.
(b) Post at all locations at which bargaining unit members are assigned in
Region II copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms they shall be signed by
the Regional Chief Administrative Law Judge of Region II of the Central Region
and shall be posted and maintained for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places where Notices
to employees are customarily posted. Reasonable steps shall be taken? to ensure
that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 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.
FOOTNOTES
1/ A support staff consisting of clerical employees, attorneys, legal
assistants and a computer technician work in the HO. However, most of these
employees are represented by other unions.
2/ § 7120(e) of the Statute provides, in pertinent part, as follows:
§7120. Standards of conduct for labor organizations
(e) This chapter does not authorize participation in the management of a labor
organization or acting as a representative of a labor organization by a
management official, a supervisor, or a confidential employee, except as
specifically provided in this chapter, or by an employee if the participation or
activity would result in a conflict or apparent conflict of interest or would
otherwise be incompatible with law or with the official duties of the employee.
Statutes Cited
5 USC 7116(a)(1)
5 USC 7116(a)(2)
5 USC 7102
5 USC 7120(e)
5 USC 7103(a)(10)
5 USC 7103(2)(B)(iii)
5 USC 7118
Cases Cited
35 FLRA 113
6 FLRA 628
203 F.3d 51
834 F.2d 174
58 FLRA 516
52 FLRA 602
54 FLRA 864
53 FLRA 1541
49 FLRA 1051
Copyright 2004 © LRP Publications
Gabrielle Martin, President
National Council of EEOC Locals No. 216
Phone: 303.866.1322
Fax: 303.866.1900
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