Social Security Administration, Mid-America Program Service Center, BRSI, Kansas City, Missouri (Respondent) and American Federation of Government Employees, AFL-CIO, Social Security Local 1336 (Complainant) 

 



[ v02 p389 ]
02:0389(52)CA
The decision of the Authority follows:


 2 FLRA No. 52
 
 SOCIAL SECURITY ADMINISTRATION,
 MID-AMERICA PROGRAM SERVICE CENTER,
 BRSI, KANSAS CITY, MISSOURI
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 SOCIAL SECURITY LOCAL 1336
 Complainant
 
                            		Assistant Secretary
                            		Case No. 60-5757(CA)
 
                            DECISION AND ORDER
 
    On July 3, 1979, Administrative Law Judge Edwin S. Bernstein Issued
 His Recommended Decision and Order in the Above-entitled Proceeding,
 Finding That the Respondent Violated Section 19(a)(1) of Executive Order
 11491, as Amended, When it Placed in an Employee's File Remarks
 Disparaging a Union Steward's Performance of His Duty in Representing
 The Employee, and Recommending That it Cease and Desist Therefrom and
 Take Certain Affirmative Action as Set Forth in the Attached
 Administrative Law Judge's Recommended Decision and Order.  The
 Administrative Law Judge Found Further That the Respondent Had Not
 Violated Section 19(a)(1) and (2) of the Order When it Lowered an
 Employee's Performance Rating, and Therefore Recommended That the
 Remainder of the Complaint, Relating Thereto, Be Dismissed.  Thereafter,
 The Respondent Filed Exceptions with Respect to That Portion of the
 Administrative Law Judge's Recommended Decision and Order Finding a
 Violation.
 
    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,
 Including the Respondent's Exceptions, /1/ the Authority Hereby Adopts
 The Administrative Law Judge's Findings, Conclusions and
 Recommendations.  /2/
 
                                   Order
 
    Pursuant to Section 2400.2 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7135 of the Federal
 Service Labor-management Relations Statute, the Authority Hereby Orders
 That the Social Security Administration, Bureau of Retirement and
 Survivors Insurance, Mid-america Program Service Center, Shall:
 
    1.  Cease and Desist From:
 
    (A) Publishing Memoranda Disparaging and Deprecating the
 Representation of Employees by Union Representatives.
 
    (B) in Any like or Related Manner Interfering With, Restraining, or
 Coercing Employees in the Exercise of Their Rights Assured by Executive
 Order 11491, as Amended.
 
    2.  Take the Following Affirmative Action in Order to Effectuate the
 Purposes and Policies of the Order:
 
    (A) Post at its Facilities at the Mid-america Program Service Center,
 Kansas City, Missouri, Copies of the Attached Notice Marked "Appendix"
 On Forms to Be Furnished by the Federal Labor Relations Authority.  Upon
 Receipt of Such Forms, They Shall Be Signed by the Director of the
 Mid-america Program Service Center, and They Shall Be Posted and
 Maintained by Him for 60 Consecutive Days Thereafter, in Conspicuous
 Places, Including All Places Where Notices to Employees Are Customarily
 Posted.  The Social Security Administration, Bureau of Retirement and
 Survivors Insurance, Mid-america Program Service Center Shall Take
 Reasonable Steps to Insure That Such Notices Are Not Altered, Defaced or
 Covered by Any Other Material.
 
    (B) Notify the Federal Labor Relations Authority, in Writing, Within
 30 Days from the Date of this Order as to What Steps Have Been Taken to
 Comply Herewith.
 
    It Is Hereby Further Ordered That the Portion of the Complaint in
 Assistant Secretary Case No. 60-5757(ca) Found Not Violative of the
 Executive Order Be, and it Hereby Is, Dismissed.
 
    Issued, Washington, D.c., December 31, 1979
 
                       Ronald W. Haughton, Chairman
 
                       Henry B. Frazier Iii, Member
 
                        Leon B. Applewhaite, Member
 
                     Federal Labor Relations Authority
 
                                 Appendix
 
        Notice to All Employees Pursuant to a Decision and Order of
 
           The Federal Labor Relations Authority and in Order to
 
          Effectuate the Policies of Chapter 71 of Title 5 of the
 
            United States Code Federal Service Labor-management
 
              Relations We Hereby Notify Our Employees That:
 
    We Will Not Publish Memoranda Disparaging or Deprecating the
 Representation of Employees by Their Union Representatives.
 
    We Will Not in Any like or Related Manner Interfere With, Restrain,
 Or Coerce Our Employees in the Exercise of Their Rights Assured by
 Executive Order 11491, as Amended.
 
                           (Agency or Activity)
 
    Dated:  By:
 
                                (Signature)
 
    This Notice must Remain Posted for 60 Consecutive Days from the Date
 Of Posting and must Not Be Altered, Defaced, or Covered by Any Other
 Material.
 
    If Employees Have Any Questions Concerning this Notice or Compliance
 With Any of its Provisions, They May Communicate Directly with the
 Regional Director, Federal Labor Relations Authority, Whose Address Is:
 City Center Square, Suite 680, 1100 Main Street, Kansas City, Missouri
 64105:  and Whose Telephone Number Is:  (816) 374-2199.
 
    Francis X. Dippel
 
    Management Representative
 
    Mid-america Program Service Center
 
    Social Security Administration
 
    1220 High Rise Building
 
    6401 Security Boulevard
 
    Baltimore, Maryland 21325
 
                            For the Respondent
 
    Barbara M. Vache, Esq.
 
    905 North Seventh Street
 
    Kansas City, Kansas
 
                            For the Complainant
 
    Before:  Edwin S. Bernstein
 
                         Administrative Law Judge
 
                      Recommended Decision and Order
 
    On June 15, 1978, American Federation of Government Employees,
 Afl-cio, Social Security Local 1336 (The Union) Filed a Complaint
 Against Social Security Administration, Mid-america Program Service
 Center, Brsi (The Activity) the Complaint, as Amended on October 6, 1978
 Alleged That the Activity Violated Subsections 19(a)(1) and (2) of
 Executive Order 11491, as Amended (The Executive Order) in That Ms.
 Barbara Reed, the Assistant Manager of Module 34, (1) Defamed in Writing
 Mr. Carl Harper, Head Steward of Section Vi and (2) Lowered Mr. James
 Scott's Performance Rating for the Period from October 1, 1976 Through
 September 30, 1977 as a Reprisal Because He Obtained Union
 Representation.
 
    Pursuant to a Notice of Hearing Dated October 13, 1978, a Hearing Was
 Held Before Me in Kansas City, Missouri on December 14, 1978.  Both
 Parties Were Represented by Counsel, Examined and Cross-examined
 Witnesses, Presented Evidence, and Filed Post-hearing Briefs.  Upon the
 Entire Record, I Make the Following Findings of Fact, Conclusions of
 Law, and Recommended Order.
 
                             Findings of Fact
 
    Following a Meeting on September 19, 1977 with James H. Scott and His
 Head Steward, Carl E. Harper, Mr. Scott's Supervisor, Barbara Ann Reed
 Issued a Lowered Performance Appraisal for Mr. Scott and Issued a
 Memorandum Criticizing Mr. Harper's Conduct at the Meeting.  The Issues
 Are Whether the Lowered Performance Appraisal And/or the Criticisms of
 Mr.  Harper Violated Subsections 19(a)(1) or (2) of the Executive Order.
 
    Following a February 10, 1977 Meeting in Which She Discussed Mr.
 Scott's Job Performance, Ms. Reed Summarized Her Comments in a
 Memorandum to Mr. Scott, Stating:
 
    "I Told You That I Have No Particular Criticisms of Your Work at this
 Time.  I Feel That
 
    You Have Maintained the High Level of Performance Indicated by Your
 Current Appraisal.  You
 
    Have the Experience and Knowledge to Be Competent in All Aspects of
 Your Job and Carry out All
 
    Assignments and Case Work Independently and Efficiently:  You Rarely
 Receive a Qa Error and
 
    Have Need of Few Consultations with Ta or Other Technicians."
 
    Following Another Meeting with Mr. Scott on June 6, 1977, Ms. Reed
 Complained That Mr. Scott and Others Had Been Engaging in Excessive
 Talking and Non-productive, Bad Habits.  She Suggested That He Might
 Find it Useful to Keep His Own Private Tally of Cases Worked and
 Non-productive Conversations Each Day.  She Stated That Three Weeks
 Earlier the Module Manager Attempted to Rearrange Desks of Persons in
 The Module to Alleviate the Excessive Talking and Non-productive
 Activities but since it Was Met with Vigorous Opposition it Was Dropped
 With the Alternative Suggestion Made by Members of the Module of
 Allowing for a Period of Improvement.  She Further Indicated That since
 The Trial Period Had Ended, Interviews Were Being Conducted with
 Persons, Including Him, Who Presumably Had Not Improved During the Trial
 Period.
 
    Following Another Meeting with Mr. Scott on July 26, 1977, Ms. Reed
 Noted a "Very Definite Decline from Your Level of Efficiency at the End
 Of the Last Rating Period." She Indicated That She Found 12 Errors in 53
 Of His Cases That Were Reviewed, That the Errors Seemed to Be Due
 Primarily to Carelessness Rather than to Lack of Knowledge, That Others
 Needed to Assist Him in Keeping up with the Backlog, That His Output Had
 Declined, and That He Seemed to Have Suffered a Loss of Enthusiasm and
 Motivation Regarding His Work.
 
    Following an August 26, 1977 Meeting with Mr. Scott, Ms. Reed Again
 Advised Him That She Did Not Feel That He Was Performing at the Level of
 His Current Appraisal.  She Complained That Occasionally He Did Not
 Honor Dispatch Times, That Recently Numerous Non-moving Folders Were
 Located on His Desk.  She Indicated Specifically How She Planned to Rate
 Him for the Current Period in Each of the Various Rating Categories.
 
    Mr. Scott Then Discussed the Proposed Lowered Rating with His Union
 Head Steward, Mr. Carl Harper Who by Note to Ms Reed Dated September 19,
 1977 Requested a Meeting.  The Note Contained the Following Language:
 
    "The Nature of the Problem Is Performance Related and Deals Primarily
 With a Performance
 
    Interview Wherein You (Illegible) You Are Contemplating a Overall
 Lowering of Mr. Scott's
 
    Appraisal in Every Item. Your Decision to Do So Is Arbitrary and
 Capricious in Light of the
 
    Supervisory Guidelines and Current Policy and Practice as Established
 By Our Section Chief,
 
    Mr. Copeland."
 
    Ms. Reed Met with Mr. Scott and Mr. Harper Later That Day.  Mr.
 Scott Testified That the Meeting Was Heated and He Thought That Ms. Reed
 Believed That Mr. Harper Threatened to File a Grievance If Mr. Scott's
 Appraisal Was Not Changed.  Mr. Harper Testified That the Meeting Was
 Harmonious and That Ms. Reed Listened, Took Notes, but Did Not Provide
 Much Feedback.
 
    Ms. Reed Prepared a 3 Page Memorandum in Which She Set Forth Her
 Recollection of What Transpired at and Her Views Regarding the September
 19, 1977 Meeting.  The Memorandum Indicated That Mr. Harper Threatened
 That a Grievance Would Be Filed Unless She Changed Mr.  Scott's Proposed
 Ratings.  Her Summarized Views Included Opinions That Mr. Scott Had a
 Poor Knowledge of the Facts, Was Poorly Prepared for the Meeting, and
 Lied;  That the Sole Purpose of the Meeting Was to Embarrass, Intimidate
 And Threaten Her;  and That Mr. Harper Did a Poor Job of Representing
 Mr. Scott.
 
    Ms. Reed Prepared the Memorandum on September 19 and Gave a Copy to
 Her Supervisor, Kathleen A. Gorman.  On September 21, at Ms. Gorman's
 Direction, Ms. Reed Signed and Dated the Memorandum and Placed a Copy in
 Mr. Scott's 7b Extension File.
 
    On November 4, 1977, Mr. Scott Received His Performance Ratings for
 The Year from October 1, 1976 Through September 30, 1977.  The Ratings
 Were Identical to the Ratings That Ms. Reed Showed to Mr. Scott at the
 August 26, 1977 Meeting.
 
    The Union Filed an Informal Charge in this Matter on March 17, 1978.
 The Activity's Labor Management Relations Bulletin Dated May 1, 1978
 Contained the Following Notice to Supervisors:
 
    During the past Month, the Psc Received an Unfair Labor Practice
 Charge That Claimed
 
    Management Violated Section 19(a)(1), (2), (4), and (5) of Executive
 Order 11491 as
 
    Amended.  Regarding this Charge, We Would like to Remind Managers
 That the Disparagement or
 
    The Exhibition of Disdain for a Union Official or Representative
 While He or She Is Performing
 
    Authorized Representational Activities and in the Presence of One or
 More Bargaining Unit
 
    Employees May Be an Act Which Is a Violation of Section 19(a) (1) of
 The Executive
 
    Order.  Such Action Is Held to Have a Chilling Effect upon an
 Employee's Exercise of His or
 
    Her Section 1(a) Rights to Form, Join, or Assist a Labor
 Organization.  Although You Can
 
    Express Your Opinions Candidly in a Private Conversation Between
 Yourself and a Union
 
    Representative Acting in an Official Capacity, You Should Not in Any
 Case Disparage or Show
 
    Disdain for a Union Official or Representative Acting in an Official
 Capacity and in the
 
    Presence of a Bargaining Unit Employee.
 
    On June 29, 1978, the Activity Sent the Following Letter to the
 Complainant:
 
    Despite the Fact That You Have Not Indicated Any Intention to Accept
 Any of Management's
 
    Offers for Informal Settlement of this Charge, We Have Decided to
 Remove the Written Summary
 
    Of Ms. Reed's September 19, 1977, Meeting with Mr. James Scott and
 Mr. Carl Harper from
 
    Mr. Scott's Sf-7b Extension File.  By So Doing, We Are Not, Even by
 Implication, Admitting to
 
    Any Violation of the Executive Order.  However, We Do Feel That this
 Summary Does Not Add
 
    Useful Information to the Employee's File, and since it Is the
 Alleged Basis of Your Unfair
 
    Labor Practice Complaint, We Wish to Hereby Demonstrate Further Our
 Good Faith in Attempting
 
    To Resolve That Complaint.
 
    On November 16, 1977, Mr. Scott Filed a Grievance in Which He
 Questioned and Sought Revision of His Recent Performance Appraisals.
 After a Hearing, the Grievance Examiner Found That the Evaluations Were
 Just and Fair and Denied Relief to the Grievant.
 
    Mr. Harper and the Activity's Management Had Previously Disagreed in
 June 1977 When Ms. Gorman Wished to Rearrange Desks in the Module and
 Because of Employee Opposition, in Which Ms. Harper Represented the
 Employees, the Activity Dropped the Plan.
 
    In the Summer of 1977, Ms. Reed Considered Lowering the Ratings of
 Two Other Employees, Richard Gutierrez and Shirley Shaw but after
 Meeting with These Employees, Ms.  Reed Was Persuaded Not to Lower Their
 Ratings and These Individuals Were Subsequently Promoted.  These
 Employees Were Assisted by the Union Although Not Represented at
 Meetings by the Union in These Matters.  It Is Not Clear Whether or Not
 The Activity Knew That the Union Assisted the Employees.
 
                            Conclusions of Law
 
    There Is No Evidence That Mr. Scott Received a Lower Performance
 Rating Because of His Union Activities or Because He Obtained Union
 Assistance.  The Rating That He Received Was Identical in All Categories
 To the Rating That His Supervisor Advised Him of Before the September
 19, 1977 Meeting and Was Consistent with Warnings That He Received in
 June, July and August.  Furthermore, since the Issue of the Propriety of
 The Performance Ratings Was Raised in a Grievance Procedure, Section
 19(d) of the Executive Order Bars Consideration of the Issue under
 Unfair Labor Practice Procedures.  Equal Employment Opportunity
 Commission, A/slmr 707(1976);  Department of the Navy, Mare Island Naval
 Shipyard, Vallejo, California, A/slmr 570(1975).
 
    However, I Find That in Placing Ms. Reed's September 21, 1977
 Summarization Memorandum in Mr. Scott's 7b Extension File, the Activity
 Violated Section 19(a)(1) of the Executive Order.  Although Ms. Reed Was
 Obviously Provoked by Mr. Harper and Felt Threatened and Intimidated,
 Her Statements to the Effect That Mr. Harper Did a Poor Job of
 Representing Mr. Scott Are Remarks Disparaging a Union Representative in
 The Performance of His Duty Which Interfere With, Restrain, or Coerce an
 Employee in the Exercise of Rights Assured by the Executive Order.  See:
  National Labor Relations Board, Region 17, and National Labor Relations
 Board, A/slmr 671(1976);  Internal Revenue Service Center, Philadelphia
 Service Center, Philadelphia, Pennsylvania, A/slmr No. 771(1976);
 Department of Transportation, Federal Aviation Administration, Airway
 Facilities Sector, Tampa, Florida, A/slmr 725(1976).  Ms. Reed Had Every
 Right to Prepare the Summarization and Show it to Her Supervisors but
 When the Summarization, Which Deprecated the Union Steward's
 Representation of Mr. Scott, Was Placed in the Employee's File, it
 Constituted Publication, at Least to the Employee, and Then Violated
 Section 19(a)(1).
 
    I Do Not Agree with the Activity That Their Removal of the
 Summarization and the Issuance of a Notice in Their Bulletin to
 Supervisors Rendered the Violation De Minimus or Moot.  In Support of
 This Argument, the Activity Cites Department of the Navy, Norfolk Naval
 Shipyard, Portsmouth, Virginia, A/slmr 967(1977).  However, in That Case
 The Violation Was Found to Be De Minimus Because the Offending Material
 Was Removed Immediately.  'In the Case at Hand, the Activity Waited over
 9 Months Before Removing the Summarization.  Although That Removal
 Provided Part of the Remedy, it Did Not Cure the Violation or Render it
 De Minimus.
 
                              Recommendation
 
    Having Found That Respondent Has Engaged in Conduct Prohibited by
 Section 19(a)(1) of Executive Order 11491, as Amended, I Recommend That
 The Federal Labor Relations Authority (The Authority) Adopt the
 Following Order Designed to Effectuate the Purposes and Policies of the
 Executive Order.
 
                             Recommended Order
 
    Pursuant to Section 6(b) of Executive Order 11491, as Amended, and
 Section 203.26 of the Regulations Thereunder, the Authority Hereby
 Orders That Social Security Administration, Mid-america Program Service
 Center, Brsi, Kansas City, Missouri Shall:
 
    1.  Cease and Desist From:
 
    (A) Publishing Memoranda Disparaging and Deprecating the
 Representation of Employees by Union Representatives.
 
    (B) in Any like Manner, Interfering With, Restraining, or Coercing
 Employees in the Exercise of Their Rights Assured by the Executive
 Order.
 
    2.  Take the Following Affirmative Actions to Effectuate the Purposes
 And Policies of the Executive Order:
 
    (A) Post at its Facilities Copies of the Attached Notice Marked
 "Appendix" on Forms to Be Furnished by the Authority.  Upon Receipt of
 Such Forms, They Shall Be Signed by the Official in Charge of the
 Activity and Posted and Maintained by Him for 60 Consecutive Days
 Thereafter, in Conspicuous Places, Including All Bulletin Boards and
 Other Places Where Notices to Employees Are Customarily Posted.  The
 Official in Charge of the Activity Shall Take Reasonable Steps to Insure
 That Such Notices Are Not Altered, Defaced, or Covered by Any Other
 Material.
 
    (B) Pursuant to 29 C.f.r. 203.27 and Section 2400.2 of the Transition
 Rules and Regulations, Notify the Authority in Writing Within 30 Days
 From the Date of this Order as to What Steps Have Been Taken to Comply
 Herewith.
 
                            Edwin S. Bernstein
 
                         Administrative Law Judge
 
    Dated:  July 3, 1979
 
    Washington, D.c.
 
    /1/ the Respondent Excepted to the Administrative Law Judge's Finding
 That Placing in an Employee's File a Summary Disparaging the Union
 Representative's Performance of His Representational Duty Constituted
 Publication.  The Authority Agrees with the Administrative Law Judge's
 Conclusion in That Respect, and Notes in Addition That Uncontradicted
 Evidence Establishes That the Respondent Also Gave a Copy of the Summary
 Directly to the Employee.
 
    /2/ in Conformity with Section 902(b) of the Civil Service Reform Act
 Of 1978(92 Stat. 1224), the Present 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.