WASHINGTON, D.C.
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NAVAL AVIATION DEPOT NORTH ISLAND CORONADO, CALIFORNIA
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and
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Case No. SF-CA-90140 |
Yolanda Shepherd Eckford, Esquire
For the General Counsel
W. Don Wilson
John Townsend
For the Respondent
Gary Hilbers
For the Charging Party
Before: JESSE ETELSON
Administrative Law Judge
The unfair labor practice complaint in this case alleges that
the Respondent, Naval Aviation Depot, North Island, Coronado,
California (NAD) violated sections 7116(a)(1) and (2) of the
Federal Service Labor-Management Relations Statute (the Statute).
NAD failed to select employee Carol[yn] Harper, then the vice
president of the Charging Party (the Union), for a position for
which she applied. The complaint alleges that Harper was not
selected because she engaged in protected activity. NAD's answer
denies that its failure to select Harper was based on her protected
activity and that it committed the alleged unfair labor
practice.
A hearing on the complaint was held in San Diego, California,
on August 17, 1999. Counsel for the General Counsel and for NAD
filed post-hearing briefs.
A. Setting and Chronology of Events
Carolyn Harper is one of six employees in the travel section of
NAD's administrative services and processes area. Susanna Anguiano
is the supervisor of 19 employees in the three sections comprising
the administrative services and processes area. Under Anguiano, the
travel section employs a lead clerk, four GS-5 "management
assistants," and a GS-4 "office automation assistant" or "office
automation clerk." Harper occupies, and had for approximately three
years when she applied for one of the management assistant
positions, the office automation position.
Harper was a steward for the Union, the exclusive representative of a unit of NAD's employees, from 1995 to 1997. During this period approximately 20 percent of her working hours were devoted to Union responsibilities on "official time." Harper received a performance rating of "exceeds fully successful" for the fiscal year ending July 31, 1996, and a rating of "outstanding" for the fiscal year ending July 31, 1997. She also received a "Special Act" cash award for achievement over the period of January-July 1997.(2)
In December 1997 Enith Bruce, an employee in the mail section,
was detailed to the travel section. She remained on detail until
August 1998, when she was selected for the management assistant
position at issue here. Debra Huntingford (presumably another
travel section employee) and Carolyn Harper, with the assistance of
other employees when neither was available, trained Bruce to
perform the work-- customer service--that she had been assigned. In
March 1998 Anguiano nominated Bruce for a "Special Act" cash
award.(3) Bruce had also received an
award, of the same type that Harper had received, in 1997 (Tr.
153).
In April 1998 Harper mentioned to Anguiano that she was
thinking of running for Union vice-president. Anguiano responded
that this (presumably referring to occupying the position, not to
running for it) would require a lot of union time, to which Harper
replied that she did not think so, because "[t]hat's why we have a
president." (Tr. 41). Nevertheless, when Harper became
vice-president, her official time increased to 40 percent. Then,
during a period in which the president was absent or in travel a
good deal of the time, Harper's official time increased to 80
percent (Tr. 38, 70).
Anguiano became concerned about what she regarded as excessive
official time for Harper. She consulted a Mr. Ramirez, the union
liaison representative of the human resources office (HRO), who
advised her to monitor Harper's use of official time and to
contact, Charlie Critchlaw, another HRO official, if it escalated.
In or around June 1998 Critchlaw spoke to Union President Mike Bell
about the amount of leave Harper was using, which, together with
her official time, was, in management's eyes, making her
unavailable for her work in a critical position. Bell testified
credibly that he understood that Anguiano had provided Critchlaw
with the figures that gave rise to the conversation. Critchlaw
asked Bell if they could work something out to reduce the amount of
official time Harper used. Bell explained Harper's need for
official time but promised Critchlaw to do whatever the Union could
to accommodate management's request.
Also in June 1998, Anguiano became aware that one of her
management assistants had been selected for promotion to another
position and that the assistant's position would become vacant.
Anguiano had, in the past, filled vacancies by advertising and
recruitment through the HRO. A fellow supervisor informed her that
there was a much quicker method, called the Management
Identification of Candidates (MIOC) system, that she could use to
fill this vacancy. Under MIOC, eligibility could be limited to
employees in the same or related occupations at the next lower
grade level, if all of them were known by the selecting official
and could easily be evaluated and considered, without the necessity
for an application form. Under MIOC, it was contemplated that in
most cases the selecting official would be the first-line
supervisor of the eligible candidates. (GC Exh. 7.)
Anguiano verified that this option was available for purposes
of filling this vacancy. She informed each of her eligible
employees, including Harper, of her intention to consider them for
promotion to this position. She asked that, if they were
interested, they address certain "elements" of the position in
writing. A memorandum to that effect went to Harper on August 4,
1998.
Around this time, Anguiano and Harper had one or more conversations in which Harper told Anguiano that, although she might, or would, apply for the position, she knew that Anguiano would not select her. According to Harper, she stated further to Anguiano that the reason Anguiano would not select her was because she was already complaining about the time Harper spent on union matters. Anguiano's version of such a conversation at that time did not include Harper's statement about the reason Anguiano would not select her. However, mail section supervisor Anita Smith, a witness for NAD, testified credibly that she was present in Anguiano's office when Harper, before she made her written submission, entered the office and stated that Anguiano would not select Harper because of her union activities.
I find that Harper stated to Anguiano something to the effect
that Anguiano would not select her because of their differences
over her use of official time--hence because of her union
activities. Notwithstanding that, Harper submitted the required
paperwork on August 5. According to Harper, she told Anguiano
again, when she submitted it, that she knew she would not be
selected because of Anguiano's complaints about her union time.
Anguiano responded, according to Harper, by stating that Harper
knew the impact of the office, that it has a lot of work to get
out, and that she needed "somebody that's going to be here." (Tr.
42) Anguiano did not testify about any such conversation that
occurred at the time Harper delivered her submission. In the
absence of any such testimony, including any denial that such a
conversation occurred, I credit the substance of Harper's
version.
Sometime in August, but after Harper made her written
submission, Harper, together with Union President Bell, met with
Anguiano, and perhaps Critchlaw, to discuss Harper's official time.
Harper and Bell agreed to limit her official time to two hours in
the morning and two hours in the afternoon. (Tr. 42-43,
63.)(4)
Anguiano evaluated the candidates and selected Enith Bruce in
late August. Shortly after the selection, Harper again entered
Anguiano's office and told her that she knew Anguiano had not
selected her because of her union activities. According to lead
clerk Frederick Swingle, who was present at the time, Anguiano
responded, saying, "No, that's not true." Then Harper said she
would have to "file a grievance against it." Anguiano replied that
Harper should "do what [she had] to do." I credit the substance of
Swingle's testimony.(5)
Enith Bruce had to be trained before she could perform all the duties of the management assistant position. According to management assistant Janet Andrews, it took Bruce 3-5 months to be fully trained in all the details of the position. I credit this uncontroverted testimony.
B. The Selection Process
The instructions to selecting officials for using the MIOC
system (GC Exh. 7) provide for the preparation of a list of "Best
Qualified (BQ)" candidates. This list is to include "those
candidate who have a majority of BQ assessments for experience,
training, education, awards and performance." Candidates may earn a
BQ assessment in one of a number of ways. One is to have met the
"ideal examples" of "best qualified . . . work experience" and
"training/education" for a "Knowledge, Skill[,] and Ability" (KSA)
that had been identified in the selecting official's "task
analysis" of the position to be filled. In addition, candidates who
have received a "major award," including a "special act" award
related to the position within the last five years, are to be rated
BQ. Further, the instructions state that "[c]andidates who receive
Outstanding or Exceeds Fully Successful/Superior (Demonstration
Project positions) ratings during the last three years are rated as
BQ." Once the list of "BQ eligibles" has been compiled, the
selecting official is to make the final selection in the following
manner:
Apply your selection criteria to each BQ eligible. Selection
criteria must be business-related; however, it may include personal
characteristics that would differentiate between candidates. Do not
assign "points" or "rank/score" the applicants again when applying
selection criteria. You may interview the BQ candidates.
Anguiano prepared a task analysis that is reflected in the memorandum she gave to each of the eligible employees, asking them to address the listed "elements" [or KSA's] of the management assistant position (GC Exh. 5). These were:
1. Knowledge of travel operations within Naval Aviation
Depot per Joint Regulations I & II.
2. Knowledge of functional responsibilities and operating procedures in the Administrative
Services and Operations Office.
3. Ability to meet and deal with all levels of personnel
within and outside the command on a daily basis.
4. Ability to work under pressure and meet tight
deadlines.
Four employees responded with written submissions. All except
Harper were officially employed in the mail section, although Enith
Bruce was then on detail to the travel section. After reviewing the
submissions of each of the candidates, Anguiano made an assessment
of each, which she committed to writing in a memorandum for her own
file (Mgmt Exh. 2), a practice she had followed in the past when
making selections. Anguiano's notes on two of the four candidates
are relatively brief. Apparently neither had much, if any,
experience working in the travel section. Anguiano's notes on
Harper, who then had three years' experience in the travel section,
nevertheless indicated that, in Anguiano's view, she had "not
demonstrated that she's gained or attempted to gain any knowledge
of the overall travel system, Travel Regulations or the
Administrative Office." The notes contain examples of the kinds of
situations in which Anguiano believed that Harper had not been as
helpful as she might have been in dealing with matters for which
the travel section is responsible. Finally, Anguiano noted that
"[h]er attendance is poor due to family matters (ie: emergency
situations that arise with her family and causes an unplanned leave
situation), thus causing her fellow employees to constantly pick up
her workload."
Anguiano's written assessment of Enith Bruce warrants my
quoting it at length:
Ms. Bruce was moved from the Mail Section to the Travel Section in
December 97. She has performed all duties assigned to her in an
outstanding manner. Any task or assignment was accepted readily and
met before due dates. Since the position of the runner was
frequently vacant, she took the responsibility of ensuring all
tickets were returned for issuance.[(6)] She did this on her own without asking
and never complained about the added workload. She works overtime
in the morning and evening ensuring all customers['] needs are met.
She is a fast learner and has good rapport with . . . our internal
. . . and external customers. I've assigned special assignments
throughout her time in Travel and she always meets my requirements
within the given timeframe. Her attendance is commendable. I
recommended her for a SA in March of 98 for her excellent
performance. She continues to be a team player and has maintained
her excellent work ethics. She constantly asks for clarification of
regulations and I have worked with her in teaching her JTR rules
and regulations and claim settlements. She understands the
importance of meeting tight deadlines, and goes out of her way to
meet my and customers['] needs.
On August 24, 1998, three days after making her assessment notes, Anguiano completed the "selection certification" stating that Bruce was the selectee. The top of the form contains her ratings of each of the candidates, with respect to their being "BQ" or merely "Qualified" ("Q"). Anguiano rated both Bruce and another candidate, "X," "BQ" in two KSA's and "Q" in the two other KSA's. Bruce and "X" received overall ratings of "BQ." Bruce was rated as "BQ" with respect to KSA 3 (ability to meet and deal with personnel) and KSA 4 (ability to work under pressure and meet tight deadlines). "X" was rated as "BQ" in KSA 2 (knowledge of responsibilities and procedures in Administrative Services) and KSA 3. Harper and the fourth candidate, "Y," were rated as "Q" in all four KSA's. Anguiano made no rating assessments of any of the candidates in the columns on the form headed "EDUC/TRNG" or "PA," the latter presumably referring to awards.
Section 7116(a)(2) of the Statute makes it 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[.]" In
Letterkenny Army Depot, 35 FLRA 113 (1990)
(Letterkenny), the Authority set forth a framework for
determining whether an unfair labor practice under section
7116(a)(2) has been established. After setting forth the elements
of the threshold burden that the General Counsel must carry in
order to establish a prima facie case and thus defeat a
motion to dismiss, Letterkenny provides that an agency
will not be found to have violated section 7116(a)(2) if it shows,
by a preponderance of the evidence, 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.
Id. at 118.
The Authority has adopted the practice of declining to decide
in Letterkenny cases "whether the General Counsel
satisfied its threshold burden" if it finds that the agency has
established its two-pronged affirmative defense. Headquarters
Forces Command, Fort McPherson, Georgia, 53 FLRA 1715, 1716,
1737-38 (1998); United States Air Force Academy, Colorado
Springs, Colorado, 52 FLRA 874, 879 (1997). Because I conclude
that NAD has established such an affirmative defense here, I follow
that practice and make no determination concerning the
establishment of a prima facie case.
In determining whether the Letterkenny defense has
been established in the case of an allegedly discriminatory failure
to select, one does not review the merits of the agency's judgment
in making the selection that it did. The crucial issue is, rather,
its motivation. Here, Anguiano's testimony, amplified by the notes
she made during the selection process, persuade me that she
considered Bruce to be the most qualified candidate, that she
considered Bruce's selection to be in the best interest of the
organization, and that she would have selected Bruce even in the
absence of Harper's protected activity.
Anguiano credited candidate "X," as well as Bruce, with the
ability to maintain a "good rapport with all of our customers and
internal staff" (Mgmt Exh. 2). She also rated "X" higher than Bruce
with respect to KSA 2. However, her perception that, among other
things, Bruce was able to learn quickly, was willing to make an
extra effort to do so, and that she consistently met deadlines,
evidently carried more weight.
Anguiano's description of Bruce makes her out to be a
superlative employee in every respect that Anguiano found to be
ultimately significant. Thus, being a "fast learner" and possession
of the other qualities that Anguiano saw in Bruce outweighed her
inferior rating, as compared to "X," with respect to the state of
her knowledge of responsibilities and procedures in Administrative
Services (KSA 2) at the time of the selection. Nor, whatever may
have motivated Anguiano in arguably giving Carolyn Harper less than
her due on any of the individual KSA ratings, do I see any basis on
which to discredit the evidence that Anguiano had more confidence
in Bruce than in any of the other candidates.(7)
Anguiano may have made a technical error in giving Harper a
"BQ" rating based on the special act award she received in
1997.(8) Anguiano disregarded that
award, and Harper's "outstanding" rating in that year, which, she
asserted, was a depot-wide group rating and award dictated from
above. The General Counsel disputes this and presented an employee
witness who testified that he did not receive such an award. While
I credit Anguiano in believing that the award was a result of a
group effort and thus did not entitle Harper to a "BQ" rating (a
belief that Anguiano applied to her rating of all of the
candidates), I will assume for the purpose of this analysis that
she was in error.
This error, in applying an instruction that in any event has
not been shown to have the force or effect of law, did not
contribute to Harper's non-selection. Close reading of the MIOC
instructions persuades me that a single "BQ" rating, for receiving
a qualifying award or otherwise, would not have been sufficient to
make any candidate a "BQ eligible." "BQ eligible" status was
available only to candidates who had "a majority of BQ assessments
for experience, training, education, awards[,] and performance."
Were this standard applied literally, none of the
candidates qualified for "BQ eligible" status. Anguiano did not
apply the instructions literally, but gave "BQ eligible" status to
the two candidates who had, in her view, the highest number of BQ
ratings.
I find no basis for concluding that what appears to be
Anguiano's second technical error (on which none of the party's
have commented) was motivated by a desire to disadvantage Harper.
Rather, she appears to have applied the instructions, with which
she had no previous experience and which hardly present themselves
as a model of clarity, in the manner that made the most sense to
her. As Anguiano applied the instructions, candidate "X" qualified
for BQ eligibility in the same way that Bruce did--by virtue of her
ratings on two of the KSA's. Yet she was not selected either. It is
not seriously disputed that both Bruce and "X" received special act
awards when Harper did in 1997. If Anguiano had given each of the
candidates a BQ rating for receiving those awards, Bruce and "X"
would each have had three BQ ratings (still not a "majority of BQ
assessments)." Bruce and "X," however, received "BQ eligible"
status independent of their awards.
The MIOC instructions advise the selecting official to apply
their "selection criteria," which "must be business-related" but
may include "personal characteristics that would differentiate
between candidates[,]" to "each BQ eligible" (GC Exh. 7). It seems
highly unlikely that a candidate who became a BQ eligible on the
basis of an award alone would have edged out candidates who were
found to be BQ eligible by virtue of their awards and, in addition,
by virtue of their KSA ratings.
Counsel for the General Counsel attributes a sinister motive to
each instance in which Anguiano arguably deviated from the MIOC
instructions. Counsel even suggests that Anguiano viewed the MIOC
system itself as a method to avoid selecting Harper. If anything,
it would seem that the MIOC system was more to Harper's advantage,
as it limited eligibility to a small group of which she was a
member. Moreover, Anguiano had reason to believe that Harper would
decline to apply for the position, as she had in the past, at least
if Anguiano used the same selection procedures she had used on
those occasions. With respect to any deviations from the
instructions, it appears that Anguiano had broad discretion and
that she would hardly have had to resort to procedural chicanery in
order to make the selection that she did.
Would Anguiano have viewed Harper's qualifications as equal to
or superior to Bruce's, and have selected her, in the absence of
her protected activity? NAD has not eliminated, and cannot be
expected to eliminate, that possibility. The Letterkenny
framework recognizes the futility of attempting to prognosticate to
any degree of certainty the course of events proceeding from an
alternative and hypothetical set of preconditions. Instead, the
affirmative defense to an allegation of discrimination under the
Statute requires only sufficient credible evidence to persuade the
Authority of the probability, on balance, that the allegedly
unlawful action had a legitimate justification and would have been
taken even in the absence of protected activity. I conclude that
NAD has met that burden. I therefore recommend that the Authority
issue the following order:
The complaint in Case No. SF-CA-90140, is dismissed.
Issued, Washington, DC, November 12, 1999.
________________________
JESSE ETELSON
Administrative Law Judge
1. Among the factual matters in dispute, I have found only the testimony of Supervisor Susanna Anguiano concerning her decision to select an employee other than Harper for the position in question to be dispositive. I found Anguiano, from her demeanor, to be a highly credible witness in general, and to be credible, for the reasons set forth below, with respect to the matters I deem to be dispositive.
2. Anguiano's explanation for the "outstanding" rating and the award is a matter of dispute and will be discussed below. Harper testified that she believed that Anguiano had nominated her for another special act award in 1996 (Tr. 36).
3. Counsel for the General Counsel contends that, because NAD failed to produce a copy of Bruce's reputed award, although copies of all such awards were subpoenaed, an adverse inference against the existence of such an award is warranted. It is not clear whether Anguiano's testimony is to be taken as stating that Bruce actually received the award. In any event, the significance of the award is that Anguiano believed that she nominated Bruce for it (see Mgmt Exh. 2), and I credit her belief that she did.
4. Although Anguiano did not recall such a meeting, I find that Harper and Bell did not make it up and that it occurred. Bell testified that he believed it took place in July. However, he admitted to being confused about dates, and Harper appeared to have a clearer recollection of the time frame.
5. Harper testified about a conversation she had at the very time Anguiano told her that she had selected Bruce, in which Harper told Anguiano that she knew Harper was more qualified and Anguiano responded that Harper knew she needed "somebody who's going to be here." (Tr. 42) Harper did not mention Swingle's presence, and I conclude that she had confused this conversation with the August 5 conversation, when Harper delivered her submission and Anguiano used the same language.
6. "Runner" is an informal name for Harper's position. The reference to that position being "frequently vacant," and to Bruce's performing duties of that position, unquestionably has its counterpart in Anguiano's note about Harper's "unplanned leave" and the necessity for fellow employees to "pick up her workload." However, in her testimony, Anguiano downplayed the significance of this observation, stating that it "wasn't a big factor in my selection. It was more based on work habits of being able to perform that . . . job." (Tr. 152.)
7. Anguiano's contemporaneous notes (Mgmt Exh. 2) are part of the substantive evidence presented by NAD. Counsel for the General Counsel had, and took, the opportunity to cross-examine Anguiano about the notes. They are subject to scrutiny to the same extent (except for demeanor) as Anguiano's testimony. While recognizing that these notes could have been constructed to mask a discriminatory action, I find in them every appearance that they reflect Anguiano's normal practice and her candid assessment of each candidate, and that they thus support her testimony.
8. There is insufficient evidence about the award Harper believed she was nominated for in 1996 to determine whether it, also, should have been considered for the purpose of BQ status, nor was Anguiano questioned about it. Much the same can be said about Anguiano's failure to consider Harper's "exceeds fully successful" and "outstanding" ratings for 1995-96 and 1996-97, respectively. The instruction to rate candidates BQ if they have received such "ratings during the last three years" is ambiguous as to whether or not the employee must have received such a rating in each of the last three years, and this issue was not explored at the hearing. Moreover, if Anguiano erred in not rating Harper BQ on this basis, I would find such error to be nondispositive for the same reasons discussed below with respect to the 1997 special act award.