Department of Health, Education and Welfare, Social Security Administration, Great Lakes Program Service Center, Chicago, Illinois (Respondent) and American Federation of Government Employees, Local 1395, AFL-CIO (Complainant)

 



[ v02 p115 ]
02:0115(12)CA
The decision of the Authority follows:


 2 FLRA No. 12 
 
 DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, GREAT LAKES PROGRAM
 SERVICE CENTER, CHICAGO, ILLINOIS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1395, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 50-17077(CA)
 
                            DECISION AND ORDER
 
    ON APRIL 12, 1979, ADMINISTRATIVE LAW JUDGE GARVIN LEE OLIVER 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 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 RULES AND REGULATIONS
 (44 F.R. 44741, JULY 30, 1979).  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 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, AND
 NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY
 ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 50-17077(CA), BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    WILLIAM H. HOLMAN
 
    MANAGEMENT REPRESENTATIVE
 
    HEW, SOCIAL SECURITY ADMINISTRATION
 
    BUREAU OF RETIREMENT AND
 
    SURVIVORS INSURANCE
 
    1220 WEST HIGH RISE BUILDING
 
    6401 SECURITY BOULEVARD
 
    BALTIMORE, MARYLAND 21235
 
                            FOR THE RESPONDENT
 
    WALTER MCKIBBIN
 
    MARC ZALTMAN
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO, LOCAL 1395
 
    600 WEST MADISON STREET
 
    CHICAGO, ILLINOIS 60606
 
                            FOR THE COMPLAINANT
 
    BEFORE:  GARVIN LEE OLIVER
 
    ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 50-17077(CA)
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
 RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON NOVEMBER 3, 1978
 BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1395
 (HEREINAFTER CALLED THE COMPLAINANT OR UNION), AGAINST THE DEPARTMENT OF
 HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY ADMINISTRATION, GREAT
 LAKES PROGRAM SERVICE CENTER, CHICAGO, ILLINOIS (HEREINAFTER CALLED THE
 RESPONDENT OR ACTIVITY).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENT VIOLATED
 SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER WHEN IT TERMINATED
 SHARON TYLER, A PROBATIONARY EMPLOYEE, BECAUSE SHE REQUESTED THE
 ASSISTANCE OF THE UNION IN RETAINING HER POSITION AND WAS A FRIEND OF A
 UNION STEWARD.  THE RESPONDENT DENIED THE ALLEGATIONS.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN CHICAGO,
 ILLINOIS.  BOTH PARTIES WERE REPRESENTED AND AFFORDED FULL OPPORTUNITY
 TO BE HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND
 CROSS-EXAMINE WITNESSES.  POSTHEARING BRIEFS HAVE BEEN RECEIVED FROM
 BOTH PARTIES AND DULY CONSIDERED.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN THE NATIONAL COUNCIL OF SOCIAL SECURITY
 PAYMENT CENTER LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF
 ALL NON-SUPERVISORY EMPLOYEES AT SIX SOCIAL SECURITY ADMINISTRATION
 PROGRAM CENTERS.  THE INDIVIDUAL LOCALS AT THE PROGRAM CENTERS ACT FOR
 THE COUNCIL AT THEIR RESPECTIVE PROGRAM CENTERS.  LOCAL 1395, AFGE IS
 THE LOCAL AT THE GREAT LAKES PROGRAM CENTER.
 
    SHARON TYLER WAS HIRED BY THE GREAT LAKES PROGRAM CENTER ON FEBRUARY
 12, 1978 AS A CLERK-TYPIST, GS-3 SUBJECT TO A PROBATIONARY PERIOD OF ONE
 YEAR.  THE PURPOSE OF THE PROBATIONARY PERIOD IS OUTLINED IN THE FEDERAL
 PERSONNEL MANUAL, SUBCHAPTER 8, PROBATION, IN PART, AS FOLLOWS:
 
    THE COMMISSION REGARDS THE PROBATIONARY PERIOD DESCRIBED IN THIS
 SUBCHAPTER AS A FINAL AND
 
    HIGHLY SIGNIFICANT STEP IN THE EXAMINING PROCESS.  IT PROVIDES THE
 FINAL INDISPENSABLE TEST,
 
    THAT OF ACTUAL PERFORMANCE ON THE JOB, WHICH NO PRELIMINARY TESTING
 METHODS CAN APPROACH IN
 
    VALIDITY.
 
    DURING THE PROBATIONARY PERIOD, THE EMPLOYEE'S CONDUCT AND
 PERFORMANCE IN THE ACTUAL DUTIES
 
    OF HIS POSITION MAY BE OBSERVED, AND HE MAY BE SEPARATED FROM THE
 SERVICE WITHOUT UNDUE
 
    FORMALITY IF CIRCUMSTANCES WARRANT.  THUS, THE PROBATIONARY PERIOD,
 PROPERLY EMPLOYED,
 
    PROVIDES PROTECTION AGAINST THE RETENTION OF ANY PERSON WHO, IN SPITE
 OF HAVING PASSED
 
    PRELIMINARY TESTS, IS FOUND IN ACTUAL PRACTICE TO BE LACKING IN
 FITNESS, AND CAPACITY TO
 
    ACQUIRE FITNESS, FOR PERMANENT GOVERNMENT SERVICE.  (R.A. EX.  2-3).
 
    SHARON TYLER RECEIVED ON-THE-JOB TRAINING IN THE CLERK-TYPIST
 FUNCTIONS IN MODULE 24.  WHEN SHE ENTERED MODULE 22 IN FEBRUARY 1978,
 HER PERMANENT WORK LOCATION, SHE WAS UNDER THE DIRECT SUPERVISION OF MR.
 ERIC MUCEUS, ASSISTANT MODULE MANAGER.  MS. ROSIE SUTTON, ASSISTANT
 MODULE MANAGER, BECAME HER FIRST LINE SUPERVISOR IN MAY 1978 AND
 REMAINED SO UNTIL HER TERMINATION IN SEPTEMBER 1978.  MS. SAVOLDI SILAS,
 MODULE MANAGER, WAS HER SECOND LINE SUPERVISOR THROUGHOUT THE ENTIRE
 PERIOD.  MS. TYLER WAS A WORK ASSOCIATE AND SAT IN CLOSE PROXIMITY TO
 MS. RITA SNORTON, CHIEF STEWARD, AFGE LOCAL 1395.
 
    ON FEBRUARY 17, 1978 ERIC MUCEUS INTERVIEWED MS. TYLER INFORMING HER
 OF RESPONDENT'S EXPECTATIONS CONCERNING WORK MOVEMENT, THE REQUIREMENT
 OF 95% ACCURACY, AND LEAVE.  MR. MUCEUS NOTED THAT MS. TYLER HAD
 DISPLAYED A VERY BAD ATTITUDE ON ONE OCCASION WHEN SHE WAS ASKED TO HELP
 THE FILE CLERKS PRONG FILE MATERIAL.  (TR. 84-85, RES. EX. 2).
 
    ON MARCH 22, 1978 MR. MUCEUS INTERVIEWED MS. TYLER AGAIN CONCERNING
 HER PERFORMANCE AS A TYPIST.  HE POINTED OUT THAT HER PRODUCTIVITY WAS
 POOR AND HER ACCURACY WAS FAR BELOW EXPECTATIONS.  HE NOTED THAT SHE WAS
 MAKING POOR USE OF HER TIME BY EXTENDING LUNCH AND BREAK PERIODS AND
 ENGAGING IN NON-WORK RELATED CONVERSATIONS.  (TR. 86-88;  RES. EX. 3).
 
    ON APRIL 26, 1978 MR. MUCEUS CONDUCTED HIS FINAL INTERVIEW WITH MS.
 TYLER.  HE POINTED OUT THAT EVEN THOUGH HER PRODUCTION AND ACCURACY HAD
 IMPROVED, BOTH AREAS STILL NEEDED IMPROVEMENT.  HE AGAIN CRITICIZED HER
 EXTENDED LUNCH AND BREAK PERIODS AND NON-WORK RELATED CONVERSATIONS.
 (TR. 88-89;  RES. EX. 4).  MR. MUCEUS TESTIFIED THAT ONE OF THE
 INDIVIDUALS THAT MS. TYLER ENGAGED IN A LOT OF NON-WORK RELATED
 CONVERSATION WAS WITH MS. SNORTON (TR. 90-91).
 
    ON JUNE 2, 1978 MS. TYLER'S NEW SUPERVISOR, ROSIE SUTTON, INTERVIEWED
 HER CONCERNING HER WORK.  SHE POINTED OUT THAT MS. TYLER'S AVERAGE DAILY
 PRODUCTION OF 20 CASES PER DAY MUST COME TO NO LESS THAN 30-40 CASES PER
 DAY AND HAVE 95% ACCURACY, INSTEAD OF 78% ACCURACY.  SHE ALSO NOTED THAT
 MS. TYLER MUST BEGIN AND END HER BREAKS TIMELY AND LIMIT THE TIME SPENT
 IN CONVERSATION WITH OTHER EMPLOYEES.  (TR. 104;  RES. EX. 5).
 
    SOMETIME IN JUNE 1978 MS. TYLER ASKED RITA SNORTON, CHIEF STEWARD AND
 HER CO-WORKER, FOR HELP CONCERNING HER JOB.  MS. SNORTON SUGGESTED THAT
 SHE GO TO THE UNION ABOUT HER PROBLEM.  RITA SNORTON AND MS. TYLER MET
 WITH LOCAL UNION PRESIDENT, DONALD JONES.  (TR.  20-21;  38).
 
    ONE JUNE 23, 1978 MS. SUTTON INTERVIEWED MS. TYLER AND POINTED OUT
 SHE HAD STILL NOT ACHIEVED THE PRODUCTIVITY GOALS.  (TR. 108;  RES. EXH.
 6).  ON JULY 18, 1978 MS.  SUTTON MET WITH MS. TYLER AND HER UNION
 REPRESENTATIVE.  MS. SUTTON ADVISED MS. TYLER THAT HER PRODUCTION WAS
 29.8 CASES, STILL BELOW EXPECTATION, AND SHE WAS STILL NOT LIMITING HER
 LUNCH AND BREAK PERIODS OR LENGTHY CONVERSATION WITH OTHER PERSONNEL.
 MS. TYLER WAS INFORMED THAT IF SHE DID NOT MEET EXPECTATIONS BY AUGUST
 18, 1978, HER TERMINATION WOULD BE RECOMMENDED.  (TR. 110;  RES.  EX.
 8).
 
    ON APPROXIMATELY JULY 25, 1978 WALTER MCKIBBON, CHIEF STEWARD, MET
 WITH JOHN BEDNOR, SECTION MANAGER, CONCERNING SHARON TYLER.  (TR. 13).
 MR. MCKIBBON TESTIFIED THAT MR. BEDNOR STATED THAT RITA SNORTON WAS THE
 PROBLEM IN THE CASE AND THAT SHE EXERTED A BAD INFLUENCE ON SHARON
 TYLER.  (TR. 13, 18).  MR. BEDNOR TESTIFIED THAT HE DOESN'T KNOW WHETHER
 OR NOT HE USED THE WORDS "BAD INFLUENCE", BUT HIS STATEMENT WAS BASED ON
 INFORMATION FROM MS.  TYLER'S SUPERVISOR'S, ROSIE SUTTON AND SAVOLDI
 SILAS, THAT SHARON TYLER AND RITA SNORTON TALKED AN AWFUL LOT, WHICH
 CREATED A PROBLEM WITH SHARON TYLER'S PRODUCTION.  MR. BEDNOR TESTIFIED
 THAT HIS STATEMENT HAD NOTHING TO DO WITH RITA SNORTON BEING A UNION
 REPRESENTATIVE.  (TR. 152-153).  MR.  BEDNOR'S TESTIMONY IS CONSISTENT
 WITH THE RECORD AS A WHOLE, AND I CREDIT HIS TESTIMONY CONCERNING THE
 CIRCUMSTANCES UNDER WHICH HE MADE THE STATEMENT TO MR. MCKIBBON.
 
    ON AUGUST 22, 1978 MS. SUTTON REVIEWED MS. TYLER'S DAILY WORK
 STATISTICS WITH MS. TYLER AND HER UNION REPRESENTATIVE.  MS. SUTTON
 CONCLUDED THAT INASMUCH AS MS.  TYLER'S CASE PRODUCTION WAS 31.5 CASES
 WITH 85 PERCENT ACCURACY, HER WORK PRODUCTS WERE MARRED BY ERASURES AND
 WHITE-OUTS, AND HER UTILIZATION OF TIME HAD NOT IMPROVED, SHE WOULD BE
 RECOMMENDED FOR TERMINATION.  (TR. 113-114;  RES. EX. 9).
 
    MS. SUTTON TESTIFIED THAT MS. TYLER SPENT A LOT OF TIME TALKING TO
 MS. SNORTON IN NON-WORK RELATED CONVERSATIONS, BUT ALSO A LOT OF TIME IN
 TALKING TO OTHER FRIENDS AND CO-WORKERS AS WELL.  (TR. 116).  I CREDIT
 MS. SUTTON'S TESTIMONY THAT MS. TYLER WAS NOT TAKEN OFF OF REVIEW
 EARLIER IN VIEW OF THE LACK OF CONSISTENCY IN THE QUALITY AND QUANTITY
 OF HER WORK, AND THAT THE STANDARDS SHE ESTABLISHED WERE CONSISTENT WITH
 THE PRODUCTION OF OTHER PERSONNEL IN THE UNIT.  (TR. 111, 115).
 
    SUBSEQUENT TO THE AUGUST 22, 1978 MEETING, WALTER MCKIBBON, CHIEF
 STEWARD, MET WITH SAVOLDI SILAS CONCERNING SHARON TYLER'S PROPOSED
 TERMINATION.  MR. MCKIBBON TESTIFIED THAT HE REQUESTED MS. SILAS TO
 RECONSIDER THE TERMINATION, AND REMARKED THAT A PERSON SHOULDN'T BE
 EVALUATED BY THEIR ASSOCIATIONS.  MR. MCKIBBON TESTIFIED THAT MS. SILAS
 REPLIED THAT IT SHOWED WEAK CHARACTER TO BE INFLUENCED BY ANOTHER.  MR.
 MCKIBBON BELIEVED THAT MS. SILAS WAS REFERRING TO SHARON TYLER'S
 ASSOCIATION WITH RITA SNORTON.  (TR. 15).  MS. SILAS DENIED MAKING SUCH
 A STATEMENT;  HOWEVER, SHE ACKNOWLEDGED REPORTING EARLIER TO JOHN
 BEDNOR, THE SECTION CHIEF, THAT A LOT OF TIME WAS BEING WASTED BY
 TYPISTS TALKING AND NOT WORKING.  MS. SILAS TESTIFIED THAT SHARON TYLER
 TALKED EXCESSIVELY, BUT THAT SHE RECOMMENDED THE TERMINATION OF SHARON
 TYLER BECAUSE SHE FAILED TO MEET HER EXPECTATIONS AS AN EMPLOYEE AND NOT
 BECAUSE SHE WAS FRIENDS WITH MS. SNORTON.  (TR. 143-144).  MS. SILAS
 TESTIMONY IS CONSISTENT WITH THE RECORD AS A WHOLE AND I CREDIT HER
 TESTIMONY.
 
    ON SEPTEMBER 22, 1978 MS. TYLER WAS TERMINATED.  THE SEPTEMBER 8,
 1978 TERMINATION LETTER STATED THAT SHE HAD FAILED TO "CONSISTENTLY
 ATTAIN ACCEPTABLE LEVELS OF COMPETENCE IN THE AREAS OF QUANTITY AND
 ACCURACY OF CASES PRODUCED." (R.A. EX. 2-1).
 
    MS. TYLER APPEALED HER TERMINATION TO THE FEDERAL EMPLOYEE APPEALS
 AUTHORITY PURSUANT TO FPM CHAPTER 315.  SHE ALLEGED, AMONG OTHER THINGS,
 THAT THE ACTIVITY USED A SYSTEM OF EVALUATION WHICH DISCRIMINATED
 AGAINST HER BECAUSE OF RACE, SEX, COLOR, NATIONAL ORIGIN, RELIGION, AND
 AGE.  SHE ALSO ALLEGED THAT SHE WAS DISCRIMINATED AGAINST BECAUSE OF
 THEIR RELATIONSHIP WITH AN OFFICIAL OF THE UNION.  (R.A.EX. 2-5, 2-4;
 RES. EX. 1).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    SECTION 19(D) OF THE ORDER STATES THAT "ISSUES WHICH CAN PROPERLY BE
 RAISED UNDER AN APPEALS PROCEDURE MAY NOT BE RAISED UNDER THIS SECTION."
 AN APPEALS PROCEDURE WITHIN THE MEANING OF SECTION 19(D) MUST BE A
 PROCEDURE IN WHICH THE UNFAIR LABOR PRACTICE ISSUE CAN BE RAISED AND,
 SECOND, IT MUST PROVIDE FOR THIRD PARTY REVIEW.  DEPARTMENT OF THE NAVY,
 AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, 4 A/SLMR 620, A/SLMR
 NO. 434(1974).  FPM CHAPTER 315 GIVES PROBATIONARY EMPLOYEES THE RIGHT
 TO APPEAL TO THE CIVIL SERVICE COMMISSION ON GROUNDS LIMITED TO RACE,
 COLOR, RELIGION, SEX, NATIONAL ORIGIN, PARTISAN POLITICAL REASONS,
 MARITAL STATUS, OR PHYSICAL HANDICAP.  IT HAS PREVIOUSLY BEEN HELD THAT
 THIS APPEALS PROCEDURE IS NOT ONE IN WHICH THE UNFAIR LABOR PRACTICE
 ISSUE PROPERLY CAN BE RAISED AND, THEREFORE, THE USE OF THIS PROCEDURE
 TO CONTEST A TERMINATION DOES NOT FORECLOSE CONSIDERATION OF AN UNFAIR
 LABOR PRACTICE COMPLAINT CONCERNING THE SAME DISCHARGE. VETERANS
 ADMINISTRATION, VETERANS BENEFITS OFFICE, 3 A/SLMR 444, A/SLMR NO.
 296(1973).
 
    SECTION 1(A) OF THE ORDER GUARANTEES TO EACH EMPLOYEE OF THE
 EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT
 FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
 ORGANIZATION OR TO REFRAIN FROM ANY SUCH ACTIVITY.  SECTION 19(A)(1)
 PROVIDES THAT AGENCY MANAGEMENT SHALL NOT INTERFERE WITH, RESTRAIN, OR
 COERCE AN EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE ORDER.
 AGENCY MANAGEMENT'S ABRIDGMENT OF THESE RIGHTS BY DISCRIMINATION IN
 REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
 IS VIOLATIVE OF SECTION 19(A)(2) OF THE ORDER.  TO FIND A SECTION
 19(A)(2) VIOLATION OF THE ORDER, THE EVIDENCE MUST SHOW THAT AGENCY
 MANAGEMENT HAS DISCRIMINATORILY AFFECTED EMPLOYEE TERMS AND CONDITIONS
 OF EMPLOYMENT BASED ON UNION CONSIDERATIONS.  FURTHER, SUCH A VIOLATION
 WILL BE FOUND IN "MIXED MOTIVE" SITUATIONS, I.E., WHERE A LEGITIMATE
 BASIS FOR THE MANAGEMENT ACTION EXISTS, BUT WHERE UNION CONSIDERATIONS
 ALSO ARE SHOWN TO HAVE PLAYED A PART.  DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, SOCIAL SECURITY ADMINISTRATION, SAN JUAN, PUERTO RICO,
 A/SLMR NO. 1127 (SEPT. 22, 1978).
 
    APPLYING THE FOREGOING PRINCIPLES TO THE INSTANT CASE, THE
 COMPLAINANT HAS FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT
 RESPONDENT'S TERMINATION OF SHARON TYLER WAS BASED ON UNION
 CONSIDERATIONS, IN WHOLE OR IN PART.
 
    IN MAKING THE ABOVE FINDINGS, I GAVE GREATER WEIGHT TO THE TESTIMONY
 OF RESPONDENT'S WITNESSES, INCLUDING ERICK MUCEUS, ROSIE SUTTON, AND
 SAVOLDI SILAS, THAN TO COMPLAINANT'S WITNESSES.  THE TESTIMONY OF SHARON
 TYLER, DONALD JONES AND RITA SNORTON WAS LARGELY SPECULATIVE AND
 CONCLUSIONARY.  ON THE OTHER THE TESTIMONY, PARTICULARLY OF ERICK MUCEUS
 AND ROSIE SUTTON, CONTAINED ESSENTIAL FACTS AND DETAILS WHICH WERE
 CORROBORATED IN LARGE PART BY DOCUMENTARY EVIDENCE.
 
    COERCIVE OR INTIMATING STATEMENTS BY AGENCY MANAGEMENT IMPLYING
 ADVERSE CONSEQUENCES FOR EMPLOYEES SEEKING OR ACCEPTING UNION
 ASSISTANCE
 AND REPRESENTATION CONCERNING GRIEVANCES, PERSONNEL POLICIES AND
 PRACTICES, OR OTHER MATTERS AFFECTING WORKING CONDITIONS WOULD
 CONSTITUTE SEPARATE AND INDEPENDENT VIOLATIONS OF SECTION 19(A)(1) OF
 THE ORDER.  DEPARTMENT OF TRANSPORTATION, TAMPA, FLORIDA, 6 A/SLMR 521,
 A/SLMR NO. 725(1976).  HERE, HOWEVER, THERE IS NO PERSUASIVE EVIDENCE
 THAT ANY CRITICISM DIRECTED AT SHARON TYLER BECAUSE OF HER ASSOCIATION
 WITH RITA SNORTON WAS BECAUSE RITA SNORTON WAS CONNECTED WITH THE UNION.
  RATHER, THE EVIDENCE DEMONSTRATES THAT ONE CONSISTENT AREA OF CONCERN
 TO MANAGEMENT, IN ADDITION TO SHARON TYLER'S FAILURE TO CONSISTENTLY
 ATTAIN ACCEPTABLE LEVELS OF PRODUCTION QUANTITY AND ACCURACY, WAS HER
 POOR UTILIZATION OF TIME BY NON-WORK RELATED CONVERSATIONS WITH OTHER
 TYPISTS.  ONE OF THE INDIVIDUALS WITH WHOM SHE HAD SUCH CONVERSATIONS
 WAS THE UNION STEWARD, RITA SNORTON.  THERE IS NO EVIDENCE THAT ANY SUCH
 CONVERSATION CONSIDERED BY MANAGEMENT WAS DURING AN OFFICIAL
 REPRESENTATIONAL SESSION.  CF.  GENERAL SERVICES ADMINISTRATION,
 NATIONAL ARCHIVES AND RECORDS SERVICE, A/SLMR 1113 (SEPT. 1, 1978).  NOR
 IS THERE ANY PERSUASIVE EVIDENCE OF DISPARATE TREATMENT OR ANTI-UNION
 ANIMUS.  THE EXECUTIVE ORDER DOES NOT PRECLUDE AGENCY MANAGEMENT FROM
 INSISTING THAT EMPLOYEES ABIDE BY THE TERMS OF THE NEGOTIATED AGREEMENT
 CONCERNING THE USE OF OFFICIAL TIME FOR EMPLOYEE REPRESENTATIONAL
 ACTIVITIES, AND CERTAINLY DOES NOT PRECLUDE AGENCY MANAGEMENT FROM
 DIRECTING EMPLOYEES IN THEIR ASSIGNED DUTIES.  DEPARTMENT OF THE AIR
 FORCE, BASE PROCUREMENT OFFICE, VANDERBURG AIR FORCE BASE, CALIFORNIA,
 FLRC NO. 75A-25(1976).
 
    THE RESPONDENT'S ACTIONS HAVE NOT BEEN SHOWN TO INTERFERE WITH RIGHTS
 ASSURED BY THE ORDER, AND COMPLAINANT HAS FAILED TO CARRY ITS BURDEN OF
 PROVING THAT PART OF THE RESPONDENT'S MOTIVATION FOR TERMINATING TYLER
 DURING THE PROBATIONARY PERIOD WAS FOR REASONS VIOLATIVE OF THE ORDER,
 RATHER THAN FOR WORK RELATED CAUSES.  CF. DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, REGION IX, SAN FRANCISCO, CALIFORNIA, A/SLMR NO.
 1156 (DECEMBER 11, 1978);  DEPARTMENT OF TRANSPORTATION, FEDERAL
 AVIATION ADMINISTRATION, HOUSTON, TEXAS, A/SLMR NO. 1039 (MAY 11, 1978);
  INTERNAL REVENUE SERVICE, MEMPHIS SERVICE CENTER, A/SLMR NO. 989 (FEB.
 22, 1978).
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS NOT ENGAGED IN CONDUCT PROHIBITED BY
 SECTIONS 19(A)(1) AND (2) OF THE EXECUTIVE ORDER, AS AMENDED, IT IS
 HEREBY RECOMMENDED THAT THE COMPLAINT HEREIN BE DISMISSED IN ITS
 ENTIRETY.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 12, 1979
 
    WASHINGTON, D.C.
 
    /1/ 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.