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

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