U.S. Department of Labor, Occupational Safety and Health Administration (Respondent) and Local 2513, American Federation of Government Employees, AFL-CIO (Complainant) 

 



[ v01 p84 ]
01:0084(4)MS
The decision of the Authority follows:


 1 FLRA No. 4
 
 U.S. DEPARTMENT OF LABOR
 OCCUPATIONAL SAFETY AND HEALTH
 ADMINISTRATION
 Respondent
 
 and
 
 LOCAL 2513, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO
 Complainant
 
                                            CSC Docket No. 83
 
                            DECISION AND ORDER
 
    ON DECEMBER 14, 1978, ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
 LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE
 COMPLAINT BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED WITH
 RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.  /1/
 
    THE FEDERAL LABOR RELATIONS AUTHORITY HAS REVIEWED THE RULINGS OF THE
 ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER, AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
 PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE FEDERAL LABOR RELATIONS
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CSC DOCKET NO. 83 BE, AND
 IT HEREBY IS, DISMISSED.
 
                            RONALD W. HAUGHTON
 
                                 CHAIRMAN
 
                           HENRY B. FRAZIER III
 
                                  MEMBER
 
    ISSUED:  MARCH 5, 1979
 
                      RECOMMENDED DECISION AND ORDER
 
    BY ADMINISTRATIVE LAW JUDGE JOHN J. MCCARTHY
 
    WITH APPEARANCES BY:
 
    BARTON S. WIDOM, ESQUIRE AND JEAN DAVIS, ESQUIRE FOR THE DEPARTMENT
 
    JOSEPH GIRLANDO, ESQUIRE FOR THE COMPLAINANT
 
    STATEMENT OF THE CASE
 
    THIS CASE IS AN UNFAIR LABOR PRACTICE PROCEEDING BROUGHT UNDER
 EXECUTIVE ORDER 11491, AS AMENDED (ORDER) AND PART 203 OF TITLE 29 OF
 THE CODE OF FEDERAL REGULATIONS.  /3/ BECAUSE THIS COMPLAINT INVOLVES
 THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA) OF THE
 DEPARTMENT OF LABOR, THESE PROCEEDINGS ARE BEFORE THE CIVIL SERVICE
 COMMISSION INSTEAD OF THE ASSISTANT SECRETARY FOR LABOR-MANAGEMENT
 RELATIONS (A/SLMR).  /4/
 
    COMPLAINANT, LOCAL 2513, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, ALLEGES THAT P. CHARLES SCHWENDER VIOLATED SECTION 19(A)(1),
 19(A)(2), AND 19(A)(4) OF THE ORDER BY THREATENING TWO CLERICAL
 EMPLOYEES, ROSALIND DIBENEDETTO AND CANDICE JANKOWSKI, IN AN ATTEMPT TO
 RESTRAIN THEM FROM FILING GRIEVANCES.
 
    PURSUANT TO NOTICE A HEARING WAS HELD IN NEW YORK, NEW YORK.
 COMPLAINANT'S CASE WAS BASED ALMOST EXCLUSIVELY ON THE TESTIMONY OF
 ROSALIND DIBENEDETTO, SINCE CANDICE JANKOWSKI DID NOT TESTIFY.
 COMPLAINANT MOVED TO CONTINUE THE HEARING MAINTAINING THAT JANKOWSKI WAS
 EXCUSABLY ABSENT AND THAT HER TESTIMONY WOULD CORROBORATE DIBENEDETTO'S
 TESTIMONY AND OTHERWISE ADD TO COMPLAINANT'S CASE.  A CONTINUANCE WAS
 GRANTED UNTIL MAY 1, 1978.  WITH THE TAKING OF JANKOWSKI'S TESTIMONY
 STILL NOT ARRANGED, A MOTION FOR FURTHER CONTINUANCE WAS DENIED ON MAY
 22, 1978, AND THE RECORD WAS CLOSED.  A BRIEF WAS THEREAFTER FILED ON
 BEHALF OF THE RESPONDENT ACTIVITY.
 
    FINDINGS OF FACT
 
    DURING THE PERIOD OF TIME COVERED BY THIS CASE, P. CHARLES SCHWENDER
 WAS AREA DIRECTOR OF THE OSHA OFFICE IN BUFFALO, NEW YORK, COMPLAINANT
 WAS THE EXCLUSIVE REPRESENTATIVE OF THE BUFFALO AREA OFFICE'S EMPLOYEES.
  ROSALIND DIBENEDETTO WAS SCHWENDER'S SECRETARY, BUT THEY DID NOT HAVE A
 SMOOTH WORKING RELATIONSHIP.
 
    NEAR THE BEGINNING OF 1977, THE GRADING OF CLERICAL POSITIONS IN THE
 BUFFALO AREA OFFICE AND ALL OTHER OSHA OFFICES IN REGION II WAS
 SURVEYED.  EACH OF THE 15 AREA DIRECTORS WAS ASKED TO PROVIDE INPUT TO
 THE REGIONAL ADMINISTRATIVE AND MANAGEMENT OFFICE (RAMO).  A PROPOSAL
 FOR UPGRADING, IF JUSTIFIED, WAS THEN TO BE FORWARDED TO THE CIVIL
 SERVICE COMMISSION (CSC) FOR APPROVAL.  SCHWENDER SUBMITTED SUPPORTING
 DATA ON JANUARY 1978;  THE UNION AND UNIT EMPLOYEES WERE INFORMED OF
 THIS ACTION.
 
    ON MAY 6, 1977, SCHWENDER MET WITH DIBENEDETTO AND TWO OTHER
 EMPLOYEES, CANDICE JANKOWSKI, AND MARY ELLEN BARGMANN, REGARDING THE
 PROPOSAL.  RON NEWTON, WHO WAS A UNION STEWARD AT THE TIME, WAS ALSO
 PRESENT.  SCHWENDER EXPLAINED THE PROCEDURE THAT WOULD LEAD TO POSSIBLE
 APPROVAL OF THE PROPOSAL THROUGH RAMO AND CSC.  HE ALSO EXPLAINED THAT
 HE HAD NO AUTHORITY TO UPGRADE CLERICAL POSITIONS HIMSELF, BUT THAT HE
 COULD GIVE A MERIT STEP PROMOTION WHERE DESERVED.  AT THIS POINT, THE
 CRUCIAL FACTUAL DISPUTE IN THIS CASE ARISES.  COMPLAINT ALLEGES THAT ON
 OR ABOUT MAY 6, 1977, SCHWENDER THREATENED DIBENEDETTO AND JANKOWSKI IN
 AN ATTEMPT TO DISCOURAGE THEM FROM FILING GRIEVANCES AGAINST HIM FOR NOT
 UPGRADING THE CLERICAL EMPLOYEES IN THE AREA OFFICE.
 
    THE ONLY EVIDENCE SUPPORTING THIS ALLEGATION IS THE TESTIMONY OF
 DIBENEDETTO THAT SUCH A THREAT WAS MADE AFTER MAY 6:  /5/
 
    Q WHAT OCCURRED AFTER THAT MEETING, DO YOU RECALL?  ANYTHING IN THE
 FOLLOWING THAT MAY HAVE
 
    OCCURRED?  WAS THERE ANOTHER DISCUSSION HELD ON THE QUESTION?
 
    A WELL, I KNOW THAT WE WERE TOLD THAT WE SHOULD DO OUR WORK IN THERE
 AND THERE WAS NOTHING
 
    HE COULD DO ABOUT IT.  THEN WE WERE TOLD THAT WE COULD PUT IN MORE
 GRIEVANCES IF WE WANTED BUT
 
    IT WOULDN'T DO US ANY GOOD, IT WOULD JUST MAKE MORE TROUBLE FOR US.
 TR. 28-29
 
   .          .          .          .
 
 
    Q DO YOU RECALL HAVING ANY FURTHER CONVERSATION WITH MR.  SCHWENDER
 ABOUT THIS MATTER, YOUR
 
    GRIEVANCES?
 
    A WELL, WE ASKED IF HE WAS GOING TO DO ANYTHING ABOUT IT, YOU KNOW,
 THE FOLLOWING WEEK AND
 
    HE SAID, NO, THERE WAS NOTHING HE COULD DO ABOUT IT.  WE SAID, WELL,
 IF YOU CAN'T DO ANYTHING
 
    ABOUT IT, WE WILL SEE WHAT THE UNION CAN DO ABOUT IT AND WE WILL PUT
 A GRIEVANCE IN.
 
    HE TOLD ME THAT I COULD PUT IN AS MANY GRIEVANCES AS I WANTED, IT
 WASN'T GOING TO DO ME ANY
 
    GOOD, THAT ALL IT WOULD DO WAS BRING ME MORE TROUBLE, AND I SAID,
 WELL, WHAT KIND OF TROUBLE
 
    COULD IT BRING ME, AND HE DIDN'T ANSWER THAT.  HE SAID, JUST GO AHEAD
 AND SEE WHAT HAPPENS.
 
    CANDY WAS AT HER DESK.  HER DESK WAS RIGHT NEXT TO MINE AND SHE SAID
 THAT SHE FELT THAT I
 
    WAS RIGHT AND THAT SHE WOULD PUT A GRIEVANCE IN ALSO.  AND HE SAID
 THE SAME THING WOULD GO FOR
 
    HER, THAT IF SHE PUT IN A GRIEVANCE SHE WOULD HAVE TROUBLE, ALSO.
 
    Q DID CANDY HEAR THE CONVERSATION THAT SCHWENDER WAS HAVING WITH YOU?
 
    A WELL, SHE WAS SITTING RIGHT THERE AT THE DESK.
 
    Q DID SHE MAKE SOME COMMENT ABOUT THE DISCUSSION?
 
    A WELL, SHE DIDN'T FEEL THAT MR. SCHWENDER SHOULD THREATEN ME, SAY
 THAT I WOULD BE IN
 
    TROUBLE IF I PUT IN ANY MORE GRIEVANCES AND SHE SAID SHE WOULD PUT A
 GRIEVANCE IN, TOO.
 
    Q WHAT DID MR. SCHWENDER HAVE TO SAY WHEN CANDY MADE THAT COMMENT?
 DO YOU RECALL?
 
    A WELL, HE SAID THAT SHE COULD PUT THE GRIEVANCE IN ALSO;  THAT SHE
 WOULD HAVE THE SAME
 
    TROUBLE I COULD HAVE.  WE DIDN'T KNOW WHAT HE MEANT BY "TROUBLE." TR.
 31-32
 
    THE MATERIAL ATTACHED TO THE COMPLAINT DOES NOT COINCIDE WITH
 DIBENEDETTO'S TESTIMONY THAT MRS. JANKOWSKI PARTICIPATED IN THAT
 CONVERSATION AND THAT SCHWENDER MADE AN IDENTICAL THREAT TO JANKOWSKI ON
 THE SAME OCCASION.  A STATEMENT GIVEN BY MRS. JANKOWSKI ON JULY 6, 1977
 IS TO THE EFFECT THAT SHE LEARNED ABOUT MR. SCHWENDER'S ALLEGED
 THREATENING REMARKS TO MRS. DIBENEDETTO ONLY BECAUSE DIBENEDETTO TOLD
 HER ABOUT THE CONVERSATION.  MOREOVER, JANKOWSKI'S REPORT OF HER OWN
 CONVERSATION WITH MR. SCHWENDER AFTER MAY 6, 1977 CONCERNING GRIEVANCES
 DOES NOT IN ANY WAY INDICATE THAT DIBENEDETTO WAS PRESENT.  /6/
 SIMILARLY, A DIBENEDETTO STATEMENT DATED JULY 7, 1977, ATTACHED TO THE
 COMPLAINT, DOES NOT MENTION THAT JANKOWSKI WAS PRESENT TO HEAR WHAT
 SCHWENDER SAID TO DIBENEDETTO ABOUT GRIEVANCES.  IN FACT, DIBENEDETTO
 DECLARES IN HER STATEMENT:  "I'M NOT SURE IF ANYONE ELSE HEARD HIM."
 
    SCHWENDER, THE ONLY OTHER WITNESS WITH PERSONAL KNOWLEDGE OF THESE
 ALLEGED EVENTS, /7/ FLATLY DENIES THESE ALLEGATIONS:
 
    Q WHAT IF ANY COMMENTS DID YOU MAKE (AT THE MAY 6 MEETING) REGARDING
 THE FILING OF
 
    GRIEVANCES WITH RESPECT TO THE UPGRADING?
 
    A I EXPLAINED THE FACT THAT UNDER THE CIRCUMSTANCES, I HAD SUBMITTED
 ALL THAT I WAS CAPABLE
 
    OF SUBMITTING AND THAT ANY DISSATISFACTION FROM THE EMPLOYEES IN
 REGARD TO THIS SUBJECT WOULD
 
    HAVE TO FOLLOW THROUGH THE APPEALS AVENUE AND NOT THE GRIEVANCE
 PROCEDURE BECAUSE THIS WAS
 
    STRICTLY UP TO THE RAMO OR CIVIL SERVICE COMMISSION AT THIS POINT.
 (TR. 100
 
   .          .          .          .
 
 
    Q WHAT, IF ANY, COMMENTS DID MS. DIBENEDETTO MAKE AT THIS MEETING
 ABOUT THE UNION OR FILED
 
    GRIEVANCES?
 
    A I SINCERELY FEEL THAT SHE THOUGH I HAD THE AUTHORITY TO PROMOTE FOR
 EXAMPLE FROM HER
 
    POSITION WHICH WAS SECRETARY/STENO 5, TO A 6, WHICH I EXPLAINED I DID
 NOT AND THAT PERHAPS YOU
 
    FELT THAT SHE WOULD GAIN SATISFACTION THROUGH FILING A GRIEVANCE,
 WHICH I ATTEMPTED TO EXPLAIN
 
    TO HER THAT WAS NOT MY PREROGATIVE TO PROMOTE BEYOND MY STAFFING
 PATTERN, AS I MENTIONED
 
    PREVIOUSLY, THAT THIS WOULD BE AN APPEALS PROCEEDING, THAT WOULD BE A
 DIFFERENT AVENUE.
 
    Q DO YOU REMEMBER HER EXACT WORDS, WHAT SHE SAID?
 
    A I DON'T RECALL HER EXACT WORDS AT THE TIME, NO.
 
    Q DO YOU RECALL YOUR WORDS?
 
    A YES, IN THE SENSE THAT I WAS EXPRESSING THE FACT THAT A GRIEVANCE
 WOULD NOT BE THE
 
    APPROPRIATE PROCEDURE UNDER THE CIRCUMSTANCES.  HOWEVER, I DID NOT
 MAKE ANY ATTEMPT TO
 
    DISCOURAGE HER FROM FILING A GRIEVANCE BUT SIMPLY TO EXPLAIN THE
 DIFFERENCE BETWEEN A NORMAL
 
    GRIEVANCE AND THE ACCOMPLISHMENT AND THIS SITUATION, HOW A GRIEVANCE
 WOULD NOT ACCOMPLISH HER
 
    OBJECTIVE IN THIS PARTICULAR INSTANCE.
 
    Q DID YOU MAKE A STATEMENT THAT IT WOULD CAUSE HER TROUBLE IF SHE
 FILED A GRIEVANCE?
 
    A NO, MA'AM.
 
    Q DID YOU MAKE ANY STATEMENT LIKE THAT, THAT MIGHT BE INTERPRETED AS
 THAT?
 
    A NO.
 
    Q WAS ANYTHING ELSE SAID REGARDING THE FILING OF GRIEVANCES WITH THE
 UNION AT THAT MEETING?
 
    A A REMARK WAS MADE BY MS. JANKOWSKI AND MS. DIBENEDETTO THAT THEY
 HAD A DESIRE TO PURSUE
 
    THIS ENDEAVOR FURTHER AND AN INFERENCE WAS MADE TO A GRIEVANCE
 POSSIBILITY.
 
    Q WHAT DID YOU SAY TO THAT?  WHAT WERE YOUR COMMENTS?
 
    A AS I MENTIONED PREVIOUSLY, AGAIN, I EXPLAINED THE CIRCUMSTANCES,
 THAT THIS WOULD NOT BE
 
    APPROPRIATE UNDER THE CONDITIONS.  HOWEVER, THIS WOULD BE THEIR
 PREROGATIVE.
 
    Q DID YOU STATE THAT THIS WOULD BE HER PREROGATIVE TO DO SO?
 
    A YES.  AS I EXPLAIN TO ANY EMPLOYEE, THAT IS THEIR PREROGATIVE TO
 FILE A GRIEVANCE, IF
 
    THEY SO DESIRE.  TR. 102-103
 
    THIS PORTION OF SCHWENDER'S TESTIMONY COULD BE READ AS ONLY DENYING A
 THREAT ON MAY 6, AND NOT THE LATER THREAT ALLEGED BY DIBENEDETTO.
 HOWEVER, IT IS CLEAR FROM SCHWENDER'S TESTIMONY THAT HE DID NOT "MAKE
 ANY STATEMENT LIKE THAT" WAS MEANT TO INCLUDE STATEMENTS ALLEGEDLY MADE
 AFTER MAY 6.  THUS, THE GRAVAMEN OF THIS COMPLAINT RAISES THE QUESTION
 OF WHOSE RECOLLECTION OF THESE EVENTS IS MORE RELIABLE.
 
    COMPLAINANT HAS THE BURDEN OF PROVING THE ALLEGED THREAT BY A
 PREPONDERANCE OF THE EVIDENCE.  29 C.F.R. 203.15.  COMPLAINANT HAS NOT
 MET THIS BURDEN;  THE DEMEANOR OF THE WITNESSES AND OTHER FACTORS CAUSE
 ME TO CREDIT SCHWENDER'S DENIAL RATHER THAN DIBENEDETTO'S ACCUSATIONS.
 ALTHOUGH HE WAS AT TIMES FRUSTRATED BY THE NUMBER OF GRIEVANCE FILED,
 THERE IS CONSIDERABLE EVIDENCE THAT SCHWENDER COOPERATED WITH THE UNION
 AND RESOLVED GRIEVANCES FREQUENTLY.  MOREOVER, HAVING FAVORED THE
 UPGRADING PROPOSAL, IT IS DIFFICULT TO SEE WHY SCHWENDER WOULD FEAR A
 GRIEVANCE REGARDING IT, SINCE HE WOULD OBVIOUSLY BE BLAMELESS IF
 UPGRADING DID NOT OCCUR.  IN GENERAL, THE THREATS ATTRIBUTED TO
 SCHWENDER ARE NOT CONSISTENT WITH THE REST OF THE EVIDENCE REGARDING
 THIS OPERATION OF THE BUFFALO AREA OFFICE AND HIS TREATMENT OF
 EMPLOYEES.
 
    THE TESTIMONY OF THE WITNESSES PERSUADES ME TO CONCLUDE THAT MRS.
 DIBENEDETTO, WHOSE INTER-PERSONAL RELATIONSHIPS WITH MR. SCHWENDER WERE
 STRAINED, FOCUSSED ON THE NEGATIVE PORTION OF HIS REMARKS, PARTICULARLY
 HIS EXPLANATION OF THE FUTILITY OF RELYING ON GRIEVANCES AS A MEANS OF
 UPGRADING THE CLERICAL STAFF.  THIS WAS TAKEN OUT OF THE CONTEXT OF HIS
 TOTAL EXPLANATION;  SHE MISINTERPRETED AND EXAGGERATED HIS REMARKS ABOUT
 FILING MORE GRIEVANCES.  HER INTERPRETATION OF HIS REMARKS IS
 INCONSISTENT WITH HIS STATEMENTS THAT SHE WAS ENTITLED TO FILE AS MANY
 GRIEVANCES AS SHE WISHED, THAT HE SUPPORTED THE UPGRADING, THAT HE DID
 NOT HAVE THE AUTHORITY TO TAKE THE ACTION ON HIS OWN.
 
    THE ANIMOSITY BETWEEN SCHWENDER AND DIBENEDETTO MAY ALSO ACCOUNT FOR
 THE DIFFERENT VERSIONS OF ANOTHER STATEMENT HE MADE, CONCERNING THE
 POSSIBILITY OF MERIT PAY INCREASES AS AN INTERIM ALTERNATIVE TO
 RECLASSIFICATION OF THE CLERICAL POSITIONS.  MR.  SCHWENDER TESTIFIED HE
 STATED THAT "(T)HIS WAS POSSIBLE AND IT WOULD BE GRANTED TO ANY EMPLOYEE
 WHO WAS DESERVING OF SUCH A MERIT PROMOTION OR AWARD." TR. 100.  A
 SIGNIFICANTLY DIFFERENT VERSION OF MR. SCHWENDER'S STATEMENT IS GIVEN IN
 MRS. DIBENEDETTO'S TESTIMONY:  "HE COULDN'T EVEN GIVE US A MERIT STEP
 WHICH WE WERE TOLD THE DIRECTOR COULD, IF HE WANTED TO.  AND HE SAID
 THAT HE FELT THAT WE DIDN'T DESERVE IT BECAUSE QUOTE, "WE DON'T
 PERFORM." TR. 27.  IF SCHWENDER HAD EVALUATED HIS CLERICAL EMPLOYEES IN
 THAT MANNER AT THE MAY 6 MEETING ATTENDED BY UNION REPRESENTATIVE SMITH
 AND OTHER EMPLOYEES, IT WOULD PROBABLY HAVE PROVOKED SOME RESPONSE FROM
 THE UNION.  IN FACT, THE NOTES OF THE MEETING (ATTACHED TO THE
 COMPLAINT) ARE MORE IN HARMONY WITH MR. SCHWENDER'S ACCOUNT THAN THE
 ADVERSE INFERENCE IMPLICIT IN MRS. DIBENEDETTO'S VERSION:
 
    A QUESTION WAS ALSO RAISED AS TO THE POSSIBILITY OF PROMOTING PEOPLE
 ON A MERIT PERFORMANCE
 
    BASIS ON A STEP IN SIX MONTHS RATHER THAN THE USUAL YEAR.  MR.
 SCHWENDER AGREED THAT THE
 
    POSSIBILITY EXISTS, BUT IT IS NOT TO ABUSED.  WHEN ASKED HOW ONE
 MERITS SUCH A SEMI-ANNUAL
 
    INCREASE, THE CLERICALS WERE TOLD TO "PERFORM."
 
    (SUPERIOR PERFORMANCE IS IN FACT THE PRIMARY BASIS FOR A "MERIT" PAY
 INCREASE.) IN THIS INSTANCE, AS IN THE CASE OF THE ALLEGED THREATS WHICH
 TRIGGERED THE COMPLAINT, THE EVIDENCE OFFERED BY THE COMPLAINANT IS NOT
 CONVINCING.
 
    IN CONCLUSION I FIND THAT THE ALLEGATION THAT SCHWENDER THREATENED
 EMPLOYEES IS NOT PROVEN AND THAT THE EMPLOYEES ACTUALLY OVERREACTED AND
 UNREASONABLY MISUNDERSTOOD SCHWENDER'S REMARKS.  I FIND THAT SCHWENDER
 MADE NO THREATS AND THAT HE ONLY EXPLAINED THE USELESSNESS OF GRIEVING
 TO DIBENEDETTO AND JANKOWSKI.
 
    CONCLUSIONS OF LAW
 
    IN CONSIDERATION OF THE FINDINGS OF FACT, THE QUESTION TO BE DECIDED
 IS WHETHER SCHWENDER'S EXPLANATION OF UPGRADING PROCEDURES CONSTITUTED
 A
 VIOLATION OF SECTION 19(A)(1), 19(A)(2) OR 19(A)(4) OF THE ORDER.  THERE
 IS NO PROVEN VIOLATION OF SECTION 19(A)(1) OR SECTION 19(A)(2) WITHOUT
 PROOF OF ANTI-UNION ANIMUS.  E.G., PUGET SOUND NAVAL SHIPYARD, A/SLMR
 768(1976);  PUGET SOUND NAVAL SHIPYARD, A/SLMR 710(1976).  CERTAINLY,
 SCHWENDER'S EXPLANATION IS NOT EVIDENCE OF ANTI-UNION ANIMUS.  THERE IS
 EVIDENCE THAT SCHWENDER WAS FRUSTRATED WITH GRIEVANCES.  HOWEVER, EVEN
 IF THAT WERE EVIDENCE OF ANTI-UNION ANIMUS, IT IS OVERCOME BY THE
 EVIDENCE OF HIS COOPERATION WITH THE UNION.  SECTION 19(A)(2) REQUIRES
 DISCRIMINATION, AND SECTION 19(A)(4) REQUIRES DISCRIMINATORY OR
 DISCIPLINARY ACTION AGAINST AN EMPLOYEE.  EXPLAINING PROMOTION
 PROCEDURES AND ADVISING EMPLOYEES AS TO PROPER MEANS OF PROTEST CANNOT
 BE CONSIDERED TO BE DISCIPLINING OR DISCRIMINATING AGAINST THOSE
 EMPLOYEES.  FOR THESE REASONS, IT MUST BE CONCLUDED THAT CHARLES
 SCHWENDER DID NOT COMMIT AN UNFAIR LABOR PRACTICE AS ALLEGED IN THE
 COMPLAINT.
 
    RECOMMENDED ACTION
 
    I RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
    DECEMBER 14, 1978
 
    DATE JOHN J. MCCARTHY
 
                         ADMINISTRATIVE LAW JUDGE
 
    /1/ SINCE THIS CASE INVOLVES THE U.S. DEPARTMENT OF LABOR, IT WAS
 INITIATED AND PROCESSED PURSUANT TO SECTION 6(E) OF EXECUTIVE ORDER
 11491, AND WAS PENDING BEFORE THE VICE CHAIRMAN OF THE CIVIL SERVICE
 COMMISSION THEREUNDER ON DECEMBER 31, 1978.  CONSISTENT WITH SECTION
 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND REGULATIONS (44 F.R. 7)
 AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (92 STAT. 1215), THIS CASE HAS BEEN TRANSFERRED TO THE FEDERAL
 LABOR RELATIONS AUTHORITY FOR CONSIDERATION.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE LABOR
 MANAGEMENT RELATIONS STATUTE HAD NOT BEEN ENACTED (92 STAT. 1191).  THE
 DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.
 
    /3/ 29 C.F.R. 203.1-203.27(1978)
 
    /4/ ORDER, SECTION 6(E)
 
    /5/ NOTES OF THE EMPLOYEE STAFF INCLUDING DIBENEDETTO WHO
 PARTICIPATED IN THE MAY 6 MEETING MENTION NO THREATS.  ATTACHMENT TO
 COMPLAINT AND EX. C-1.
 
    /6/ THE JANKOWSKI STATEMENT WAS NOT RECEIVED IN EVIDENCE.  HOWEVER,
 SINCE IT WAS PART OF THE DOCUMENTATION SUPPORTING THE COMPLAINT, IT IS
 TANTAMOUNT TO AN ALLEGATION