The GC issued a complaint alleging that the Respondent violated the Federal Service                   Labor-Management Relations Statute (the Statute) and committed a ULP by taking certain actions against the complaining witness. The Judge then held a hearing. Four months later, the Respondent and the complaining witness entered into a settlement agreement, which was also signed by the Union president. The settlement agreement provided that it resolved “any and all ULP[s] filed by the [U]nion . . . on behalf of and/or relating to the [complaining witness].”^[1] And the Union “agree[d] . . . to withdraw any and all ULP[s] filed . . . on behalf of and/or relating to the [complaining witness].”^[2] 

 

 

                The Respondent argues that, “in the interest of justice,” we should vacate the Judge’s decision “to ensure compliance with the” settlement agreement which, according to the Respondent, resolved the underlying ULP complaint.^[3] 

 

                Although the Authority “allow[s] the private settlement of [ULPs] at all stages of the [ULP] process, [it] will not automatically give effect to settlements reached by the parties and proposed to the Authority for approval.”^[4] Under § 2429.5 of the Authority’s Regulations, the Authority will not consider any evidence, arguments, or issues “that could have been, but were not, presented in the proceedings before the . . . [a]dministrative [l]aw [j]udge.”^[5] Section 2423.21(b)(3) of the Authority’s Regulations permits a judge to entertain post-hearing motions. Thus, if parties to a ULP proceeding enter into a post‑hearing settlement agreement, one or both parties may file a motion with the judge to reopen the record in order to receive their settlement agreement into evidence.^[6] 

 

 

The Respondent notes that, under the terms of the settlement agreement, the Union was obligated to “withdraw [the] ULP complaint.”^[7] Be that as it may, the fact remains that neither party informed the Judge prior to the issuance of her decision of the settlement’s existence nor sought to move the agreement into evidence, despite having sufficient time to do so.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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On August 18, 2008, Armel completed the    forty-hour VA training. Less than a month later, a twenty percent Social Science Technician skill code was added to Armel’s core document, which was contained in her personnel file. Also, approximately one week after the skill code’s addition, she received a document titled “Addendum for Core Doc #04097[,] Addendum for [Position Description], Sexual Assault [VA] Collateral Duties”^[1] (Addendum). (G.C. Ex. 8 at 8). Among other things, the Addendum provided that, in compliance with Directive 6495.01, the employee served as a VA for the SAPR program by providing assistance to sexual assault victims. The Addendum also specified that the employee was required to: (1) provide victims with one-on-one direct, ongoing support, crisis intervention, and referrals and (2) assist “the victim through initial response, investigative, legal, and recovery processes[] [by] providing information on available options and resources.” (Id.).  The Addendum indicated that the employee could be on call. Further, the Addendum provided that, to include it with an employee’s position description, the employee must have completed the VA training. (Tr. 58, 60-61, 63-66, 69-71, 78-82, 84, 91‑94, 182-83, 189-90; G.C. Exs. 8, 12).

 

 

 

 

 

 

 

 

 

 

 

 

 

The General Counsel contends that the Respondent violated § 7116(a)(1) of the Statute when Cook made statements to Armel that interfered with, restrained, and coerced her in the exercise of rights afforded her under the Statute. In support of this contention, the General Counsel claims that, by first denying Armel the right to engage in protected activity and then requiring her to choose between her victim advocacy and Union duties, Cook improperly interfered with Armel’s right to act as a Union representative. The General Counsel argues that evidence and testimony demonstrate that Armel did not volunteer to serve as a VA, but, rather, performed victim advocacy duties as part of Duty 1 of her position description. Specifically, the General Counsel asserts, among other things, that certain expectations contained in Armel’s position description mirror certain responsibilities of VAs listed in the Addendum. Also, the General Counsel maintains that, per Instruction 36-6001, Armel was expected to complete the VA training to perform her job duties and that, as with other employees, Armel’s completion of the training “prompted the addition of the Addendum to [her] position description, . . . which did not alter her performance of victim advocacy duties under Duty 1.” (G.C. Br. at 21). According to the General Counsel, the Social Science Technician skill code was added to Armel’s core document “in recognition of the complex victim interaction required of the [SAPR] Assistant.” Id.  The General Counsel argues that, based on the existence of memoranda drafted by Captain Gallego, in which she indicated that Armel was not required to fill out the documents listed in Instruction 36-6001, “th[e] Respondent did not consider Armel’s victim advocacy duties to be voluntary prior to her becoming a Union [S]teward.”^[2] (Id. at 22) (emphasis omitted). Moreover, the General Counsel asserts that Armel credibly testified she was rated and received awards based on her performance of victim advocacy duties and that Cook admitted a negative victim interaction would affect Armel’s performance rating.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In addition, the accommodation defense is inapplicable in this case. In this regard, the Respondent, in its brief, does not allege that there was an ongoing conflict between its right to manage its operations efficiently and Armel’s right to use official time. Also, the record does not demonstrate that such a conflict existed because Armel was designated as a Union Steward less than a month before she sent the email on February 18, 2010, and she had never requested official time prior to sending Cook that email. In making her statements, Cook did not mention any conflict between Armel’s request for official time and the performance of her duties as a SAPR Assistant or discuss how such a conflict could be accommodated. While Lindsey testified that, when he was notified that Armel was appointed as a Union Steward, he perceived a conflict between Armel’s role as a Union Steward and as a VA, he perceived this conflict because of the Respondent’s practice of allowing employees to perform one collateral duty and not because of Armel’s usage of official time. Further, Lindsey admitted that, while he perceived this conflict, he never notified the Union about it and did not attempt to accommodate Armel’s request to serve as a Union Steward. Thus, the statements at issue were not an attempt at accommodation. Hill AFB, 35 FLRA at 898(concluding that, based on the record, the supervisor’s statements made after an employee’s performance appraisal was issued did not constitute an attempt at accommodation because, prior to the appraisal’s issuance, the supervisor did not suggest ways to accommodate the perceived conflict); Veterans Admin., Wash., D.C. & VAMC & Reg’l Office, Sioux Falls, S.D., 23 FLRA 122, 124 (1986) (determining that questions posed by a supervisor to a union steward about his union position during an interview did not constitute an attempt at accommodation because there was no specific, ongoing conflict between the union steward’s “right to use official time and the agency’s right to manage effectively and efficiently”).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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