Federal Mediation and Conciliation Service (Respondent) and Mary A. Egan (Complainant) 




[ v01 p288 ]
01:0288(36)CA
The decision of the Authority follows:


 1 FLRA No. 36
 
 FEDERAL MEDIATION AND CONCILIATION
 SERVICE
 Respondent
 
 and
 
 MARY A. EGAN
 Complainant
 
                                            Assistant Secretary
                                            Case No. 20-6723(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 11, 1979, ADMINISTRATIVE LAW JUDGE WILLIAM NAIMARK 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.  THEREAFTER, THE COMPLAINANT FILED
 EXCEPTIONS WITH RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
 DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS UNDER EXECUTIVE ORDER 11491, AS AMENDED, WERE
 TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION PLAN
 NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE 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 THIS
 CASE, INCLUDING THE EXCEPTIONS FILED BY THE COMPLAINANT, THE AUTHORITY
 HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, /1/ CONCLUSIONS
 AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 20-6723(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 9, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    NANCY BROFF, ESQ.
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL MEDIATION AND CONCILIATION
 
    SERVICE
 
    WASHINGTON, D.C.  20427
 
                            FOR THE RESPONDENT
 
    MARY A. EGAN
 
    101 E. MADISON AVENUE
 
    CLIFTON HEIGHTS, PA 19106
 
                                  PRO SE
 
    BEFORE:  WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 20-6723(CA)
 
                      RECOMMENDED DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO A NOTICE OF HEARING ON COMPLAINT ISSUED ON SEPTEMBER 27,
 1978, BY THE REGIONAL ADMINISTRATOR FOR LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, U.S.  DEPARTMENT OF LABOR, PHILADELPHIA REGION, A
 HEARING WAS HELD BEFORE THE UNDERSIGNED ON NOVEMBER 2, 1978 AT
 PHILADELPHIA, PENNSYLVANIA.
 
    THIS PROCEEDING WAS INITIATED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREIN CALLED THE ORDER).  A COMPLAINT WAS FILED ON MAY 9, 1978 BY MARY
 A. EGAN (HEREIN CALLED COMPLAINANT) AGAINST FEDERAL MEDIATION AND
 CONCILIATION SERVICE (HEREIN CALLED RESPONDENT).  IT ALLEGED THAT
 COMPLAINANT WAS ISSUED A LETTER OF ADMONISHMENT BY RESPONDENT FOR
 FAILING TO DROP A PRIOR UNFAIR LABOR PRACTICE ALLEGATION BY EGAN AGAINST
 THIS RESPONDENT IN CASE NO. 20-06458(CA).  COMPLAINANT CONTENDS THAT
 SUCH CONDUCT CONSTITUTED A VIOLATION OF SECTIONS 19(A)(1) AND (4) OF THE
 ORDER.  /3/
 
    RESPONDENT SUBMITTED A RESPONSE TO THE COMPLAINT, DATED MAY 26, 1978,
 DENYING THE COMMISSION OF UNFAIR LABOR PRACTICES.  IT CONTENDED THAT ANY
 ACTS TAKEN TOWARD COMPLAINANT STEMMED FROM HER WORK PERFORMANCE AND
 BEHAVIOR PROBLEMS, AND RESPONDENT AVERRED IT NEVER REQUESTED EGAN TO
 DROP HER UNFAIR LABOR PRACTICE CASE, NO. 20-06458(CA).
 
    RESPONDENT WAS REPRESENTED AT THE HEARING AND COMPLAINANT APPEARED
 PRO SE.  EACH PARTY WAS AFFORDED FULL OPPORTUNITY TO BE HEARD, TO ADDUCE
 EVIDENCE AND TO EXAMINE AS WELL AS CROSS-EXAMINE WITNESSES.  THEREAFTER,
 BRIEFS WERE FILED WHICH HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
 ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS:
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL HEREIN THE COMPLAINANT, MARY A. EGAN, HAS
 BEEN, AND STILL IS, EMPLOYED AS A GS-5 CLERK STENOGRAPHER IN
 RESPONDENT'S REGIONAL OFFICE (REGION II) AT PHILADELPHIA, PENNSYLVANIA.
 
    2.  RECORD FACTS REFLECT, AND I FIND, THAT PRIOR TO 1978
 COMPLAINANT'S SUPERVISOR, HAROLD HORWITZ, HAD REPRIMANDED COMPLAINT FOR
 DEFICIENCIES IN HER WORK AS WELL AS HER BELLIGERENT ATTITUDE AND
 DISRESPECT TOWARD HER SUPERVISOR.  DURING THE SUMMER OF 1977, BOTH
 HORWITZ AND ROBERT W. DONNAHOO, WHO SUPERVISED HORWITZ, TALKED TO
 COMPLAINANT RE HER ATTITUDE AND WORK PERFORMANCE.  ON JULY 20, 1977
 HORWITZ INFORMED COMPLAINANT THAT HER WITHIN-GRADE INCREASE WOULD BE
 DENIED BECAUSE OF HER DEFICIENCIES AND MISBEHAVIOR.  /4/
 
    3.  RESPONDENT FORMALLY DENIED EGAN HER WITHIN-GRADE INCREASE ON
 SEPTEMBER 23, 1977.  THE DENIAL WAS APPEALED TO THE APPEALS AUTHORITY OF
 THE CIVIL SERVICE COMMISSION, AND THE LATTER BODY REVERSED THE AGENCY'S
 DETERMINATION ON MARCH 31, 1978.
 
    4.  DURING THE COURSE OF HER EMPLOYMENT WITH RESPONDENT, AND PRIOR TO
 MARCH 1978, COMPLAINANT SOUGHT A POSITION AS SECRETARY (STENOGRAPHER)
 WITH BOTH THE DEPARTMENT OF NAVY AND THE DEPARTMENT OF INTERIOR.
 
    AN APPRAISAL FORM DATED JANUARY 12, 1978, WAS FORWARDED BY THE
 CONSOLIDATED CIVILIAN PERSONNEL OFFICE TO HORWITZ IN CONNECTION WITH
 COMPLAINT'S APPLICATION FOR A POSITION WITH THE DEPARTMENT OF NAVY.  THE
 FORM TO BE FILLED OUT BY THE SUPERVISOR CONTAINED QUESTIONS TO BE
 ANSWERED AND TRAITS TO BE RATED IN RESPECT TO EGAN.  THE APPRAISAL WAS
 SIGNED BY HORWITZ ON JANUARY 23, 1978 BUT SEVERAL ITEMS WERE NOT
 COMPLETED.  IN RESPECT TO COMPLAINANT'S APPLICATION FOR EMPLOYMENT WITH
 THE DEPARTMENT OF INTERIOR, HORWITZ SIGNED AN "EMPLOYEE ANNUAL
 PERFORMANCE REVIEW" ON FEBRUARY 23, 1978.  WHILE EGAN WAS RECOMMENDED AS
 PERFORMING SATISFACTORY DUTIES, HER SUPERVISOR LEFT BLANK CERTAIN
 PERFORMANCE RATINGS ON THE FORM.
 
    5.  TESTIMONY ADDUCED FROM HORWITZ INDICATED THAT HE DID NOT COMPLETE
 THE FORMS IN BOTH INSTANCES BECAUSE THEY CALLED FOR RATINGS ON PERSONAL
 TRAITS WHICH WERE THE BASIS FOR A DENIAL OF THE WITHIN GRADE INCREASE BY
 RESPONDENT PRIOR THERETO.  SINCE THE DENIAL WAS BEING APPEALED, THE
 SUPERVISOR CONCLUDED THAT AN ADVERSE COMMENT OR RATING MIGHT HINDER
 COMPLAINANT'S CHANCES OF OBTAINING THE POSITIONS SOUGHT BY HER.
 
    6. THE ADMINISTRATIVE STAFF, COMPOSED OF FOUR REGULAR CLERICALS, WERE
 STATIONED IN ONE ROOM AT RESPONDENT'S REGIONAL OFFICE.  IN ADDITION TO
 THE OTHER CLERICALS, BOTH MARY EGAN AND JOANNE BEVAN WORKED THEREIN.
 SUPERVISOR HORWITZ, WHO OCCUPIED AN OFFICE IN AN ANTEROOM NEARBY, WAS IN
 CHARGE OF THIS STAFF, AND RECORD FACTS SHOW THAT SINCE 1946 HE HAD KEPT
 NOTES RE THE PERFORMANCE AND BEHAVIOR OF ALL CLERICALS WHOM HE
 SUPERVISED.
 
    7.  INCLUDED AMONG THE DUTIES PERFORMED BY COMPLAINANT WAS THE
 PREPARATION OF TRAVEL VOUCHERS FOR THE MEDIATORS.  ON MARCH 1, 1978
 JOANNE BEVAN, AN ADMINISTRATIVE CLERK WHO HANDLED TRAVEL VOUCHERS,
 PLACED TWO OF THEM ON COMPLAINANT'S DESK.  THE VOUCHERS WERE TO BE
 PREPARED FOR FURTHER PROCESSING.  SHORTLY THEREAFTER BEVAN WALKED INTO
 HORWITZ'S OFFICE AND STATED SHE WAS CONCERNED ABOUT THE VOUCHERS GOING
 OUT THAT DAY.  THE SUPERVISOR WENT TO EGAN'S DESK AND SAID HE HOPED SHE
 WOULD FINISH THEM BEFORE THE END OF THE DAY.  ABOUT 5-10 MINUTES LATER
 EGAN ENTERED HORWITZ'S OFFICE.  SHE SAID THAT BEVAN HAD NOT FILLED IN
 THE FRONT OF THE VOUCHER WITH THE NAME AND ADDRESS, AND THUS EGAN WANTED
 TO KNOW WHAT RIGHT BEVAN HAD TO COMPLAIN ABOUT THE VOUCHERS NOT BEING
 FINISHED.  AFTER EGAN LEFT HIS OFFICE, HORWITZ CALLED IN BEVAN AND THEY
 DISCUSSED THE OMISSIONS ON THE VOUCHERS.  WHEREUPON COMPLAINANT ENTERED
 THE OFFICE AND COMMENTED THAT THE VOUCHER WAS AS BLANK AS BEVAN'S FACE.
 THE LATTER REPLIED IT WAS THE RESPONSIBILITY OF OTHERS TO FILL OUT THE
 FRONT OF THE VOUCHER.  IN A RAISED VOICE COMPLAINANT SAID THAT THEN SHE
 SHOULD ALSO BE A GS-6, AND BEVAN REMARKED EGAN SHOULD BE A GS-2.
 
    8.  FOLLOWING THE INCIDENT IN HIS OFFICE, SUPERVISOR HORWITZ WENT TO
 SEE DONNAHOO AND INFORMED HIM THEREOF.  A DISCUSSION ENSUED IN THE
 OFFICE AMONG HORWITZ, DONNAHOO AND MARLOWE, AND THEY DECIDED TO SPEAK TO
 COMPLAINANT RE HER BEHAVIOR.  NO DECISION WAS MADE BY MANAGEMENT AT THAT
 TIME TO TAKE ANY DISCIPLINARY ACTION TOWARD EGAN.  HORWITZ THEN TOLD
 COMPLAINANT THAT THE AFOREMENTIONED SUPERVISORS WANTED TO TALK TO HER IN
 THE CONFERENCE ROOM, BUT EGAN REFUSED TO MEET WITHOUT A REPRESENTATIVE
 BEING PRESENT.
 
    9.  AS A RESULT OF COMPLAINANT'S REFUSAL TO MEET AS AFORESAID,
 MANAGEMENT DECIDED TO ISSUE A LETTER OF ADMONISHMENT TO COMPLAINANT
 BASED ON SUCH REFUSAL AND HER DISRESPECT TOWARD HORWITZ.  ACCORDINGLY,
 ON MARCH 2, 1978 COMPLAINANT WAS GIVEN A WRITTEN MEMORANDUM WHICH
 CONSTITUTED AN OFFICIAL ADMONISHMENT FOR HER "BELLIGERENT AND DEMANDING
 ATTITUDE" TOWARD HER SUPERVISOR HORWITZ ON MARCH 1.  THE MEMO FAULTED
 COMPLAINANT FOR "SCREAMING" AT HER SUPERVISOR WITHIN EARSHOT OF OTHER
 EMPLOYEES, AND IT STATED THAT A CONTINUED REFUSAL BY EGAN TO MEET WITH
 MANAGEMENT WHEN REQUESTED WOULD BE CAUSE FOR THE ISSUANCE OF A WRITTEN
 REPRIMAND.
 
    10.  ON MAY 5, 1978 DONNAHOO SPOKE TO THE COMPLAINANT ON HER POOR
 PERFORMANCE AND RELATIONS WITH OTHER EMPLOYEES. HE MENTIONED, FURTHER,
 THAT UNLESS AN IMPROVEMENT OCCURRED, A WITHIN-GRADE INCREASE FOR EGAN
 WOULD BE WITHHELD.  A MEMORANDUM FROM DONNAHOO TO COMPLAINANT, DATED
 MAY
 12, 1978, CONFIRMED THE FOREGOING CONVERSATION.  IT REFERRED TO THE FACT
 THAT EGAN WAS NOT ACCOMPLISHING ASSIGNMENTS EFFICIENTLY AND
 EXPEDITIOUSLY;  THAT HER TYPING WAS NOT SATISFACTORY, AND THAT HER
 RELATIONS WITH OTHER EMPLOYEES WAS HAVING AN ADVERSE EFFECT UPON THE
 ABILITY OF OTHER TO PERFORM THE WORK;  AND THAT HER RELATIONSHIP WITH
 SUPERVISOR HORWITZ HAD NOT IMPROVED.  THE MEMO STATED FURTHER THAT IF NO
 IMPROVEMENT WAS SHOWN IN THESE AREAS, OTHER ACTION, INCLUDING
 CONSIDERATION OF DISCHARGE, WOULD BE TAKEN BY MANAGEMENT.
 
                                CONCLUSIONS
 
    COMPLAINANT CONTENDS THAT RESPONDENT RETALIATED AGAINST HER WHEN SHE
 REFUSED OR FAILED TO DROP HER CHARGE IN CASE NO. 20-6458 FILED AGAINST
 THIS EMPLOYER.  SPECIFICALLY, IT IS ALLEGED THAT (A) MANAGEMENT, THROUGH
 SUPERVISOR HAROLD HORWITZ, KEPT SUPERVISOR'S NOTES ABOUT COMPLAINANT;
 (B) THE SUPERVISORS FAILED AND REFUSED TO COMPLETE APPRAISAL FORMS
 CONCERNING COMPLAINANT'S PERFORMANCE AND TRAITS IN CONNECTION WITH HER
 APPLICATIONS FOR POSITIONS WITH THE DEPARTMENT OF NAVY AND THE INTERIOR;
  (C) RESPONDENT ISSUED A LETTER OF ADMONISHMENT TO COMPLAINANT RE HER
 WORK PERFORMANCE AND BEHAVIOR-- ALL BECAUSE EGAN REFUSED TO DROP HER
 PRIOR COMPLAINT (20-6458) FILED AGAINST RESPONDENT.
 
    UNDER SECTION 19(A)(4) OF THE ORDER AN EMPLOYER IS PROHIBITED FROM
 DISCIPLINING OR OTHERWISE DISCRIMINATING AGAINST AN EMPLOYEE BECAUSE HE
 HAS FILED A COMPLAINT OR GIVEN TESTIMONY UNDER THE ORDER.  THUS, IF
 COMPLAINANT IS ABLE TO ESTABLISH THAT RESPONDENT HEREIN TOOK ANY OF THE
 ALLEGED ACTIONS AGAINST HER, AS A RESULT OF HER FILING A COMPLAINT
 AGAINST IT, A VIOLATION OF 19(A)(4) WOULD EXIST IN THE INSTANT CASE.
 
    AFTER A CAREFUL REVIEW OF THE FACTS HEREIN, HOWEVER, I AM CONVINCED
 THAT COMPLAINANT HAS NOT ESTABLISHED THAT RESPONDENT CONDUCT TOWARD
 EGAN
 WAS DISCRIMINATORILY MOTIVATED.  THERE IS INSUFFICIENT EVIDENCE, IN MY
 OPINION, TO DEMONSTRATE THAT THE ACTIONS BY THE EMPLOYER WERE PROMPTED
 BY COMPLAINANT'S HAVING FILED A COMPLAINT IN CASE NO. 20-6458, OR DUE TO
 HER REFUSAL TO WITHDRAW SAID COMPLAINT.  WHILE COMPLAINANT FERVENTLY
 FEELS, AND AVERS, THAT THE PARTICULAR ACTS BY RESPONDENT WERE SO
 ATTRIBUTABLE, THE RECORD IS BARREN OF EVIDENCE TO SUPPORT HER VIEW.
 MOREOVER, HER STRONG "FEELINGS" IN THIS REGARD WILL NOT REPLACE THE
 QUANTUM OF PROOF NECESSARY TO SUSTAIN A VIOLATION.  SEE U.S. DEPARTMENT
 OF THE AIR FORCE ET AL., A/SLMR NO.  248.
 
    IN RESPECT TO THE NOTE TAKING BY HORWITZ, RECORD FACTS DISCLOSE THIS
 PRACTICE HAD BEEN FOLLOWED BY HIM SINCE 1946.  FURTHER, THE SUPERVISOR
 KEPT NOTES REGARDING ALL HIS EMPLOYEES.  APART FROM THE FACT THAT HIS
 RECORDS WERE NOT LIMITED TO THE PERFORMANCE OR BEHAVIOR OF THE
 COMPLAINANT, IT DOES NOT APPEAR THAT HORWITZ MADE NOTATIONS FOR ANY
 DISCRIMINATORY REASON UNDER THE ORDER.
 
    NEITHER DOES IT BECOME EVIDENT THAT THE FAILURE BY MANAGEMENT TO
 COMPLETE THE FORMS CONCERNING EGAN'S APPLICATION FOR OTHER EMPLOYMENT
 WAS RETALIATORY IN NATURE.  THE TESTIMONY IN THIS REGARD, WHICH I
 CREDIT, ESTABLISHES THAT THE OMISSIONS WERE DUE TO THE FACT THAT THE
 PARTICULAR TRAITS TO BE RATED WERE INVOLVED IN COMPLAINANT'S APPEAL FROM
 A DENIAL OF A WITHIN GRADE INCREASE.  THE PROPRIETARY OF RESPONDENT'S
 ACTION, IN LEAVING BLANKS ON THE RATING FORMS, IS NOT IN ISSUE HEREIN.
 UNLESS IT CAN BE SHOWN THAT THE FAILURE TO FILL OUT THE SAID FORM
 STEMMED FROM THE ALLEGED ILLEGAL REASONS ADVANCED BY COMPLAINANT, NO
 VIOLATION CAN BE FOUND TO EXIST.  SPECIFICALLY, IT MUST BE SHOWN, IN
 THIS RESPECT, THAT BUT FOR THE EXERCISE BY EGAN OF HER RIGHTS UNDER THE
 ORDER-- FILING OF THE PREVIOUS COMPLAINT-- THE EMPLOYER WOULD HAVE
 COMPLETED THE RATING FORM AND NOT LEFT BLANKS REMAINING THEREIN.  I AM
 NOT PERSUADED THAT IT HAS BEEN SO ESTABLISHED.
 
    IN RESPECT TO THE ADMONISHMENT LETTER OF MARCH 2, 1978, THE RECORD
 REFLECTS THAT IT FOLLOWED THE INCIDENT OF MARCH 1 INVOLVING COMPLAINANT
 AND HER COLLEAGUE, JOANNE BEVAN IN THE SUPERVISOR'S OFFICE.  THE
 ATTITUDE AND BEHAVIOR OF EGAN GAVE RISE TO MANAGEMENT'S DESIRE TO
 DISCUSS THE MATTER WITH HER, AND THE LETTER'S REFUSAL TO DO SO PROMPTED
 THE ADMONITION.  IRRESPECTIVE OF WHETHER BLAME FOR THE CONTROVERSY LAY
 WITH EGAN OR BEVAN, THERE IS NO EVIDENCE TO SUSTAIN A FINDING THAT THE
 MEMO RESULTED IN ANY WAY FROM THE REFUSAL TO DROP THE EARLIER COMPLAINT
 AGAINST MANAGEMENT.  IT MUST BE DEMONSTRATED THAT SUCH ACTION WAS TAKEN
 BECAUSE COMPLAINANT EXERCISED RIGHTS PROTECTED UNDER THE ORDER.  CF.
 VETERAN ADMINISTRATION, NORTH CHICAGO VETERANS HOSPITAL, NORTH CHICAGO,
 ILLINOIS, A/SLMR NO.1024.  ON THE BASIS OF THE RECORD, I AM SATISFIED
 THAT COMPLAINANT'S BEHAVIOR AND INTRANSIGENCE LED TO A LEGITIMATE
 CONCERN BY THE EMPLOYER;  THAT IT SOUGHT, IN GOOD FAITH, TO DISCUSS
 EGAN'S CONDUCT WITH HER;  AND THAT THE LATTER'S REFUSAL TO DO
 PRECIPITATED THE ADMONISHMENT MEMO OF MARCH 2, 1978.  ACCORDINGLY, I
 CONCLUDE NO ILLEGAL MOTIVATION WAS PRESENT BY RESPONDENT'S ACTION IN
 THIS REGARD.
 
                              RECOMMENDATION
 
    IT HAVING BEEN FOUND THAT RESPONDENT DID NOT ENGAGE IN ANY CONDUCT
 VIOLATIVE OF SECTIONS 19(A)(1) AND (4) OF THE ORDER, IT IS RECOMMENDED
 THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                              WILLIAM NAIMARK
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  11 JAN 1979
 
    WASHINGTON, D.C.
 
    WN:MJM
 
    /1/ ON PAGES 4 AND 6 OF HIS RECOMMENDED DECISION AND ORDER, THE
 ADMINISTRATIVE LAW JUDGE INADVERTENTLY CITED A DATE AS "1946" INSTEAD OF
 "1976." THESE INADVERTENT ERRORS ARE HEREBY CORRECTED.
 
    /2/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER 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 EXECUTIVE ORDER.
 
    /3/ THE REGIONAL ADMINISTRATOR'S LETTER TO THE PARTIES, DATED
 SEPTEMBER 27, 1978, STATED THAT THE ISSUES TO BE CONSIDERED AT THE
 HEARING CONCERNED ALLEGED RETALIATORY CONDUCT TAKEN BY RESPONDENT
 AGAINST COMPLAINANT AS FOLLOWS:  (1) FAILURE TO GIVE COMPLAINANT
 COMPLETELY FILLED OUR APPRAISAL FORMS FOR HER POSITION APPLICATIONS WITH
 THE DEPARTMENTS OF INTERIOR AND THE NAVY, (2) ISSUANCE OF A MARCH 2,
 1978 LETTER OF ADMONISHMENT TO COMPLAINANT, (3) MAINTENANCE OF
 SUPERVISORY NOTES CONCERNING THE COMPLAINANT.
 
    ALTHOUGH THE COMPLAINT WAS LIMITED TO ALLEGING THE ISSUANCE OF A
 LETTER OF ADMONISHMENT, RESPONDENT AGREED AT THE HEARING TO LITIGATE THE
 OTHER TWO ALLEGED ACTS TAKEN TOWARD EGAN.  ACCORDINGLY, THE UNDERSIGNED
 PERMITTED COMPLAINANT TO AMEND HER COMPLAINT TO ALLEGE THAT RESPONDENT
 UNDERTOOK ALL THREE ACTIONS BECAUSE COMPLAINANT REFUSED TO DROP THE
 PREVIOUS UNFAIR LABOR PRACTICE CHARGE IN CASE NO. 20-06458(CA).
 
    /4/ THE POOR PERFORMANCE RATING OF COMPLAINANT WAS ATTRIBUTABLE, FOR
 THE MOST PART, TO INCORRECT TYPING, LISTINGS, AND ATTACHMENTS TO
 REPORTS.  IN RESPECT TO HER BEHAVIOR, RESPONDENT FAULTED COMPLAINANT FOR
 LOUDNESS AND REFUSAL TO MEET WITH HER SUPERVISOR TO DISCUSS THESE
 CRITICISMS.