Employment and Training Administration, Veterans Employment Service, Department of Labor (Respondent) and American Federation of Government Employees, National Council of Field Labor Lodges, Local 2513, AFL-CIO (Complainant)

 



[ v02 p751 ]
02:0751(95)MS
The decision of the Authority follows:


 2 FLRA No. 95
 
 EMPLOYMENT AND TRAINING ADMINISTRATION,
 VETERANS EMPLOYMENT SERVICE,
 DEPARTMENT OF LABOR
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 NATIONAL COUNCIL OF FIELD LABOR LODGES,
 LOCAL 2513, AFL-CIO
 Complainant
 
                                            Civil Service Commission
                                            Case No. 110
 
                            DECISION AND ORDER
 
    ON AUGUST 30, 1979, HEARING OFFICER PAUL E. WEIL ISSUED HIS
 RECOMMENDED DECISION AND ORDER IN THIS 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 HEARING OFFICER'S RECOMMENDED
 DECISION AND ORDER.
 
    THE NOW DEFUNCT CIVIL SERVICE COMMISSION ASSUMED JURISDICTION OVER
 THIS CASE PURSUANT TO SECTION 6(E) OF EXECUTIVE ORDER 11491, AS AMENDED,
 WHEN COMPLAINANT FILED ITS COMPLAINT IN 1978.  /1/ THE FUNCTIONS OF THE
 CIVIL SERVICE COMMISSION UNDER THE EXECUTIVE ORDER 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 HEARING OFFICER MADE AT THE HEARING AND
 FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE HEARING OFFICER'S RECOMMENDED
 DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT CASE, AND NOTING
 THAT NO EXCEPTIONS WERE FILED, THE AUTHORITY HEREBY ADOPTS THE HEARING
 OFFICER'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CSC NO. 110 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 29, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER, III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    IN THE MATTER OF AN UNFAIR
 
    LABOR PRACTICE COMPLAINT FILED BY:
 
    LOCAL 2513, NATIONAL COUNCIL OF FIELD
 
    LABOR LODGES, AFGE AFL-CIO
 
                                COMPLAINANT
 
    AND
 
    U.S. DEPARTMENT OF LABOR
 
                                RESPONDENT
 
                               CASE NO. 110
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    IT HAVING BEEN CHARGED, ON MARCH 16, 1978, BY AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES LOCAL 2513, AFL-CIO, HEREINAFTER CALLED THE UNION,
 THAT THE UNITED STATES DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING
 ADMINISTRATION/VETERAN'S EMPLOYMENT SERVICE, HEREINAFTER CALLED
 RESPONDENT, ENGAGED IN VIOLATIONS OF SECTION 19(A) OF EXECUTIVE ORDER
 11491, AS AMENDED, SUBSECTIONS (1), (2) AND (4) BY CONTINUOUSLY
 HARASSING THREE NAMED EMPLOYEES BECAUSE THEY FILED GRIEVANCES AGAINST
 MR. CLIFFORD M. JOHNSON, STATE DIRECTOR OF VETERANS EMPLOYMENT IN THE
 STATE OF NEW YORK AND TO COERCE THEM TO DISCONTINUE PURSUIT OF THEIR
 GRIEVANCES.  RESPONDENT DENIED THE ALLEGATIONS.
 
    EFFORTS TO RESOLVE THE ISSUED HAVING BEEN UNSUCCESSFUL, THE
 VICE-CHAIRMAN OF THE CIVIL SERVICE COMMISSION, PURSUANT TO 5 CFR 711,
 ISSUED ON JULY 11, 1978, A NOTICE OF HEARING BEFORE JUDGE JOHN J.
 MCCARTHY.  THEREAFTER THE HEARING FUNCTION WAS DULY DELEGATED TO THE
 UNDERSIGNED AND, PURSUANT TO THE CIVIL SERVICE REFORM ACT OF 1978 AND
 THE SAVINGS CLAUSE THEREOF, CAME ON FOR HEARING AT NEW YORK, NEW YORK ON
 JUNE 25, 1979.
 
    ALL PARTIES WERE PRESENT AND REPRESENTED BY COUNSEL AND HAD AN
 OPPORTUNITY TO CALL AND EXAMINE WITNESSES, TO INTRODUCE DOCUMENTARY
 EVIDENCE, TO ARGUE ORALLY ON THE RECORD AND TO FILE MEMORANDA OR BRIEFS
 AT THE CLOSE OF THE HEARING.  A BRIEF WAS RECEIVED FROM RESPONDENT.  /3/
 
    ON THE RECORD AS A WHOLE AND IN CONTEMPLATION OF THE BRIEF, I MAKE
 THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
 
                         FINDINGS AND CONCLUSIONS
 
    THE ISSUES HEREIN ARE WHETHER RESPONDENT, AND PARTICULARLY ITS AGENT
 CLIFFORD M. JOHNSON, STATE DIRECTOR OF VETERAN'S EMPLOYMENT FOR THE
 STATE OF NEW YORK, INTERFERED WITH, RESTRAINED OR COERCED EMPLOYEES IN
 THE EXERCISE OF THEIR PROTECTED RIGHTS TO ENGAGE IN UNION ACTIVITIES,
 SPECIFICALLY TO FILE GRIEVANCES THROUGH THE UNION, ENCOURAGED OR
 DISCOURAGED MEMBERSHIP IN THE UNION OR DISCIPLINED OR OTHERWISE
 DISCRIMINATED AGAINST EMPLOYEES BECAUSE THEY FILED COMPLAINTS UNDER THE
 PROVISIONS OF EXECUTIVE ORDER 11491.
 
    SPECIFICALLY, THE UNION ALLEGES THAT RESPONDENT HARASSED THREE
 EMPLOYEES, PALERMO, RAILEY AND LEFKOWITZ, BECAUSE THEY FILED GRIEVANCES
 AGAINST MR. JOHNSON.  THE HARASSMENT ALLEGEDLY INVOLVED GIVING THEM POOR
 OR NO PERFORMANCE EVALUATIONS, ISSUING "NIT-PICKING" MEMORANDA AND
 COERCING THEM TO DISCONTINUE PURSUIT OF THEIR GRIEVANCES AGAINST MR.
 JOHNSON.  MIDWAY THROUGH THE HEARING THE UNION'S COUNSEL IN EFFECT
 AMENDED THE COMPLAINT DURING THE CROSS EXAMINATION OF MR. RAILEY,
 ALLEGING THAT THE CONTENTION CONCERNING RAILEY IS ONLY THAT RESPONDENT
 FAILED TO PROMOTE HIM BECAUSE OF HIS GRIEVANCE ACTIVITIES;  THE UNION
 DOES NOT CONTEND THAT HE HAS BEEN HARASSED.
 
                                BACKGROUND
 
    PALERMO, RAILEY AND LEFKOWITZ WERE ASSISTANT VETERAN'S EMPLOYMENT
 REPRESENTATIVES (AVER'S) EMPLOYED BY THE VETERAN'S EMPLOYMENT SERVICE OF
 THE DEPARTMENT OF LABOR IN THE STATE OF NEW YORK.  RAILEY AND LEFKOWITZ
 WERE STATIONED IN OFFICES OF THE NEW YORK STATE JOB SERVICES IN NEW YORK
 CITY.  MR. PALERMO WAS STATIONED IN THE NEW YORK STATE JOB SERVICES
 OFFICES IN WHITE PLAINS, NEW YORK.
 
    PRIOR TO NOVEMBER 1975, THE NEW YORK AVERS WERE DIRECTED IN THEIR
 WORK BY HENRY WILLIAMS, THEN STATE DIRECTOR FOR THE AGENCY.  IN THAT
 MONTH A NEW POSITION WAS CREATED IN THE HIERARCHY, REGIONAL DIRECTOR,
 AND MR. WILLIAMS WAS PROMOTED TO THAT POST.  HIS JOB AS STATE DIRECTOR
 WAS TAKEN BY CLIFFORD JOHNSON WHO HAD BEEN AN AVER STATIONED IN UPSTATE
 NEW YORK.  /4/
 
    ACCORDING TO JOHNSON'S TESTIMONY HIS CONCEPT OF THE MISSION OF
 RESPONDENT WAS CONSIDERABLY DIFFERENT FROM THAT OF HIS PREDECESSOR.
 JOHNSON REQUIRED THAT HIS ASSISTANTS, THE AVERS, DIRECT THEIR ENERGIES
 PRIMARILY, IF NOT EXCLUSIVELY, TO THE POPULARIZATION OF THE VARIOUS
 PROGRAMS FOR VETERANS MANDATED BY FEDERAL LAW TOGETHER WITH A
 CONTINUING
 OVERVIEW OF THE NEW YORK STATE AGENCIES WHICH HAVE THE FUNCTION OF
 APPLYING THESE PROGRAMS TO THE MEMBERS OF THE VETERAN POPULATION IN
 THEIR AREA.  JOHNSON'S THRUST SUBSTANTIALLY ELIMINATED ANY OPPORTUNITY
 FOR WORKING ON A ONE-TO-ONE BASIS WITH VETERANS, TO WHICH, HE TESTIFIED,
 THE AVERS HAD BECOME ACCUSTOMED.  THIS CHANGE IN EMPHASIS APPEARS TO BE
 ONE OF A NUMBER OF SUBJECTS THAT STRAINED RELATIONSHIPS BETWEEN JOHNSON
 AND THE AVERS IN THE METROPOLITAN AREA.
 
    ANOTHER IRRITANT APPEARS TO HAVE BEEN THE FACT THAT JOHNSON BASED HIS
 OFFICE IN ALBANY, NEW YORK, IN THE MAIN OFFICE OF THE STATE JOB SERVICE,
 WHEREAS HIS PREDECESSOR HAD WORKED OUT OF THE MANHATTAN OFFICE.
 ADDITIONALLY A MAJORITY OF THE AVERS WERE STATIONED IN UPSTATE NEW YORK,
 ALTHOUGH THE LARGER NUMBER OF VETERANS WERE LOCATED IN THE METROPOLITAN
 AREA.
 
    ON MAY 16, 1977, A TRAINING SESSION OF AVERS WAS CONDUCTED IN NEW
 ORLEANS.  PRIOR THERETO JOHNSON DECIDED TO HAVE A MEETING OF THE AVERS
 FROM NEW YORK IMMEDIATELY PRECEDING THE OPENING OF THE TRAINING
 SESSIONS.  THE THREE AVERS FROM THE METROPOLITAN AREA ARRIVED TOO LATE
 FOR THE MEETING.  JOHNSON APPARENTLY SAW THIS AS A DELIBERATE ACT OF
 INSUBORDINATION.  HE ALLEGEDLY THREATENED TO WITHHOLD WAGE INCREASES AND
 ON JULY 19 WROTE LETTERS OF REPRIMAND TO THE THREE AVERS, WHILE REFUSING
 TO HEAR OR ACCEPT THEIR DEFENSE THAT THEY WERE NOT INFORMED OF THE
 MEETING HE HAD SCHEDULED, AND THAT THEY HAD MADE HIM AWARE OF THEIR
 ITINERARY, WHICH PRECLUDED THEIR ARRIVAL IN NEW ORLEANS IN TIME FOR THE
 MEETING.
 
    ON AUGUST 2 AND 3, 1977, THE THREE AFFECTED AVERS FILED GRIEVANCES
 WITH THE VES.  IN EACH CASE THE GRIEVANCE DETAILED VARIOUS ACTS AND
 CONDUCT OF JOHNSON TO WHICH THE GRIEVANT TOOK EXCEPTION, AND EACH
 GRIEVANCE EXPRESSLY INCLUDED THE INCIDENT OF THE MAY 16 MEETING AND THE
 JULY 19 REPRIMAND.  A FACT-FINDING OFFICER WAS DISPATCHED AND ON JANUARY
 30, 1978, LETTERS WERE SENT TO EACH OF THE GRIEVANTS, SIGNED BY ROLAND
 MORA, DEPUTY ASSISTANT SECRETARY FOR VETERANS EMPLOYMENT SERVICE,
 PURPORTING TO RESOLVE THE GRIEVANCES.  EACH OF THE THREE GRIEVANTS THEN
 APPEALED, IN ACCORDANCE WITH THE GRIEVANCE PROCEDURE.  IN THE MEANTIME,
 ON DECEMBER 21, 1977, THE UNION FILED THE CHARGE IN THE INSTANT
 PROCEEDING.
 
    THERE IS NO APPARENT RELATIONSHIP BETWEEN THE FACTS ADDUCED REGARDING
 THE THREE ALLEGED DISCRIMINATEES.  AT THE HEARING THE UNION'S CONTENTION
 APPEARS TO BE THAT PALERMO WAS THE VICTIM OF HARASSMENT BY A CAMPAIGN OF
 MEMORANDA "NIT PICKING" HIS WORK, BY DENYING HIM EARNED COMPENSATORY
 LEAVE BY REQUIRING HIM TO REMAIN IN HIS OFFICE AND BY INSTITUTING A
 PROGRAM UNDER WHICH HE WAS EXPECTED TO CHECK IN AND OUT EACH DAY BY
 TELEPHONE.  ALTHOUGH THE COMPLAINT ALLEGES A SIMILAR PATTERN OF
 HARASSMENT DIRECTED AT RAILEY, UNION'S COUNSEL AT THE HEARING STATED
 THAT THE ONLY ISSUE REGARDING RAILEY WAS HIS FAILURE TO BE PROMOTED.  AS
 TO LEFKOWITZ THE ALLEGATION OF HARASSMENT REMAINS.
 
    DEALING FIRST WITH THE ALLEGATIONS REGARDING PALERMO, THE FIRST
 CONCERNED COMPENSATORY LEAVE, GENERALLY CALLED "COMP TIME".  PALERMO
 TESTIFIED THAT HE HAD NUMEROUS PROBLEMS IN REPORTING OVERTIME AND
 SECURING COMP TIME IN COMPENSATION.  HE TESTIFIED THE FIRST SUCH PROBLEM
 AROSE IN MARCH 1977 WHEN COMP TIME WAS DENIED HIM.  THEREAFTER NEW RULES
 WERE INSTITUTED REQUIRING A DIFFERENT FORM OF REPORT.  HE ALSO TESTIFIED
 THAT ON OCTOBER 15, 1977, HE FILED A REQUEST FOR COMP TIME AND WAS TOLD
 THAT COMP TIME MUST BE APPROVED IN ADVANCE.
 
    RESPONDENT PRODUCED A MEMORANDUM DATED JULY 25, 1977, IN WHICH
 PALERMO CLAIMED OVERTIME FOR A PERIOD OF A WEEK PREDICATED UPON SKIPPING
 LUNCH 4 DAYS FOR A TOTAL OF 2 HOURS, ARRIVING 15 MINUTES EARLY 2 DAYS
 FOR A TOTAL OF 1/2 HOUR AND WORKING UNTIL 8 P.M., 7:30 P.M. AND 7 P.M.
 ON THREE EVENINGS FOR A TOTAL OF 9 HOURS.
 
    THIS MEMO WAS ANSWERED BY ONE FROM JOHNSON DATED AUGUST 1, 1977,
 STATING IN ESSENCE THAT OVERTIME MUST BE SCHEDULED AND APPROVED IN
 ADVANCE AND NONE HAD BEEN AUTHORIZED.  THE LETTER ALSO STATED THAT ALL
 LEAVE OTHER THAN SICK LEAVE MUST BE APPROVED IN ADVANCE.
 
    NO OTHER MEMORANDA WERE PLACED IN EVIDENCE.  IT CAN BE INFERRED, AND
 I DO, THAT OTHER PROBLEMS REGARDING COMP TIME WERE SIMILAR TO THIS, IF
 THERE WERE ANY OTHER.  IF THERE WAS SUCH AN INCIDENT ON MARCH 26, 1977,
 AS PALERMO TESTIFIED, IT WAS APPARENTLY SIMILAR.  IT IS CLEAR THAT THE
 ACCUMULATION AND USE OF COMP TIME WAS AN ONGOING DISPUTE THAT STARTED
 BEFORE THE GRIEVANCES WERE FILED.  THERE IS NO EVIDENCE THAT THE DISPUTE
 BECAME MORE HEATED OR RESULTED IN HARASSMENT AFTER THE FILING OF THE
 GRIEVANCES THAN BEFORE.
 
    SICK LEAVE WAS ANOTHER SUBJECT OF LITIGATION.  ACCORDING TO PALERMO'S
 TESTIMONY, HE BECAME ILL WITH A CHRONIC THYROID CONDITION WHICH CAUSED
 HIM FREQUENT ABSENCES FROM WORK.  ON DECEMBER 28, 1978 PALERMO WAS
 ABSENT THE ENTIRE DAY.  AT 12:30 P.M. HE TELEPHONED JOHN CATALANO, THE
 REGIONAL DIRECTOR, AND TOLD HIM HE WAS SICK.  CATALANO ASKED HIM WHY HE
 HAD NOT CALLED EARLIER;  PALERMO HUNG UP.  CATALANO THEN SENT PALERMO A
 MEMO ADVISING HIM THAT FOR SIX MONTHS HE WOULD BE REQUIRED TO FURNISH
 MEDICAL CERTIFICATES FOR EACH ABSENCE WHICH PALERMO DESIRED TO CHARGE TO
 SICK LEAVE.
 
    THE NEXT EVIDENCE REGARDING THIS DISPUTE IS AN UNDATED MEMO,
 OBVIOUSLY WRITTEN SOME TIME AFTER FEBRUARY 26, 1979, STATING THAT
 PALERMO HAD BEEN ABSENT EIGHT TIMES IN JANUARY AND FEBRUARY AND HAD
 FURNISHED NO MEDICAL CERTIFICATION.  THE MEMO GAVE PALERMO UNTIL MARCH
 23 TO COME UP WITH MEDICAL EVIDENCE.
 
    ON FEBRUARY 16, 1979, PALERMO SENT CATALANO COPIES OF THREE LEAVE
 SLIPS HE STATED HE HAD SENT JOHNSON.  ONE WAS FOR 8 HOURS SICK LEAVE
 DECEMBER 22, 1978 AND ONE FOR 8 HOURS SICK LEAVE DECEMBER 20.  ALTHOUGH
 PALERMO REFERRED TO THEM IN HIS COVERING MEMO, NEITHER CONTAINS ANY SORT
 OF MEDICAL CERTIFICATION.
 
    ON MAY 31, 1979, PALERMO SENT JOHNSON A COMPLETED SICK LEAVE FORM FOR
 TWO DAYS, 5/25/79 AND 5/30/79, THE BACK OF WHICH CONTAINS A MEDICAL
 DOCTOR'S SIGNATURE AND THE STATEMENT THAT THE DOCTOR HAD PALERMO UNDER
 MEDICAL CARE FROM 9/12/78 TO 5/26/79, AND THAT PALERMO "MAY RETURN TO
 WORK THURS." IT WAS SIGNED 5/26/79, A SATURDAY.  THIS WAS APPARENTLY THE
 FIRST AND ONLY MEDICAL CERTIFICATION FURNISHED BY PALERMO.
 
    ON JANUARY 22 AND 25, 1979, PALERMO DID NOT REPORT TO THE OFFICE.  HE
 REQUESTED ADMINISTRATIVE LEAVE FOR THESE TWO DAYS STATING THAT HE WAS
 BLOCKED BY A HEAVY SNOWFALL.  ON JANUARY 29, JOHNSON WROTE HIM A MEMO
 REFUSING ADMINISTRATIVE LEAVE ON THE GROUND THAT HE HAD CHECKED WITH THE
 OFFICE AND FOUND THAT THE NEW YORK STATE PERSONNEL HAD BEEN ABLE TO GET
 TO WORK, AND WITH THE OFFICIALS WHO HAD CHARGE OF THE ROADS, WHO
 REPORTED ALL ROADS WERE OPEN.  THE MEMORANDUM OFFERED RECONSIDERATION IF
 PALERMO ENCOUNTERED SOME SPECIAL PROBLEM AND COULD VERIFY THE DETAILS.
 
    EACH YEAR, IN THE FALL, EACH ASDV IS REQUIRED TO SUBMIT AN ANNUAL
 WORK PLAN, SETTING FORTH THE BEST ESTIMATE OF THE EMPLOYEE OF HIS
 ACTIVITIES THE FOLLOWING YEAR WITH AN ESTIMATE OF TIME AND COSTS.  FROM
 THIS THE STATE DIRECTOR WORKS OUT AND ALLOTS THE ANNUAL BUDGET FOR THE
 ACTIVITY.  IN 1978, BY DIRECTIVE, ALL WORK PLANS WERE TO HAVE BEEN
 SUBMITTED BY OCTOBER 25.  ON OCTOBER 26 A REVISED NATIONAL DIRECTIVE
 ISSUED AND ON OCTOBER 30 A MEMORANDUM WAS DISTRIBUTED PROVIDING
 INSTRUCTIONS AND A SUBMISSION DATE OF NOVEMBER 8, 1978.  AT A MEETING ON
 NOVEMBER 6 JOHNSON EXTENDED THE DATE TO NOVEMBER 15.
 
    ON NOVEMBER 17, JOHNSON TELEPHONED PALERMO TO FIND OUT WHERE HIS WORK
 PLAN WAS, SINCE IT HAD NOT BEEN RECEIVED.  PALERMO SAID HE COULD NOT
 COMPLETE IT BECAUSE HE LACKED TELEPHONE DIRECTORIES.  JOHNSON REMINDED
 HIM THAT AT THE NOVEMBER 6 MEETING HE HAD DIRECTED THAT WORK PLANS NOT
 BE HELD UP FOR LACK OF DIRECTORIES, THE NUMBERS COULD BE SUPPLIED LATER.
  PALERMO SAID HE WOULD MAIL THE WORK PLAN THAT DAY.
 
    ON NOVEMBER 21, JOHNSON AGAIN CALLED PALERMO FOR THE WORK PLAN.
 PALERMO SAID HE HAD MAILED IT ON NOVEMBER 13.
 
    ON NOVEMBER 28, JOHNSON WROTE A MEMO DETAILING THE ABOVE.  ON
 DECEMBER 4, THE WORK PLAN HAD NOT BEEN RECEIVED.  JOHNSON WROTE A MEMO
 CONFINING PALERMO TO HIS OFFICE UNTIL HE HAD RECEIVED AND APPROVED THE
 WORK PLAN.  HE ALSO TELEPHONED HIM AND SAID HE WOULD PICK UP A COPY THE
 FOLLOWING DAY.  ON DECEMBER 5, JOHNSON APPEARED AT THE WHITE PLAINS
 OFFICE TO GET THE WORK PLAN BUT PALERMO SAID HE HAD IT AT HOME AND IT
 WOULD BE THE FOLLOWING WEEK BEFORE JOHNSON COULD GET A COPY.  ON
 DECEMBER 11, JOHNSON CALLED AND PALERMO SAID HE DID NOT HAVE A COPY AT
 THE OFFICE.  ON DECEMBER 12, JOHNSON AGAIN WENT TO WHITE PLAINS BUT
 PALERMO WAS NOT AT THE OFFICE.  /5/
 
    ON DECEMBER 14 JOHNSON WROTE A MEMO, ADVISING PALERMO THAT HE WAS
 PLANNING TO INITIATE DISCIPLINARY ACTION.
 
    ON DECEMBER 19 JOHNSON WROTE A LETTER OF REPRIMAND IN WHICH HE
 RECITED IN ADDITION THAT ON DECEMBER 6 PALERMO WROTE A MEMO IN WHICH HE
 SAID HE HAD PUT A POSTAL TRACE ON THE MAILING, ALLEGEDLY MAILED NOVEMBER
 13.  THIS LETTER CONCLUDED WITH A DIRECTION TO PRODUCE A COPY OF THE
 WORK PLAN AND ATTACHMENTS ON DECEMBER 28 AT 11 A.M. TO THE REGIONAL
 DIRECTOR IN NEW YORK CITY.  PALERMO DID NOT DO SO.
 
    ON JANUARY 15, JOHNSON RECEIVED WHAT HE DEEMED AN ILLEGIBLE COPY OF A
 WORK PLAN WHICH PALERMO SAID IN AN ACCOMPANYING MEMO WAS SENT AT THE
 REQUEST OF A MR. DEVALLE, AN EEO COUNSELOR.  THE MEMO WAS DATED JANUARY
 9, 1979.  JOHNSON WROTE PALERMO A MEMO CONTINUING TO RESTRICT HIM TO HIS
 OFFICE UNTIL JOHNSON RECEIVED A LEGIBLE AND COMPLETE WORK PLAN.  JOHNSON
 TESTIFIED THAT AS OF THE HEARING HE HAD NOT RECEIVED A LEGIBLE WORK
 PLAN.
 
    AS STATED ABOVE, THE VES EMPLOYEES IN NEW YORK STATE ARE GIVEN OFFICE
 SPACE IN N.Y. STATE VETERANS FACILITIES.  TELEPHONES ARE PROVIDED BY THE
 STATE AND THERE IS ACCESS BOTH TO THE FEDERAL TELECOMMUNICATION SYSTEM
 AND TO A COMMERCIAL TIELINE SYSTEM FOR ALL LOCATIONS IN NEW YORK STATE.
 EMPLOYEES ARE REQUIRED TO FILL OUT A STATE FORM, GA741 WHEN TELEPHONES
 ARE USED FOR LONG DISTANCE CALLS.
 
    IN AUGUST 1977, PALERMO ACCEPTED A COLLECT LONG-DISTANCE TELEPHONE
 CALL FROM A VETERAN WHOM HE HAD BEEN COUNSELLING.  HE NOTIFIED JOHNSON
 WHO WROTE HIM A MEMORANDUM STATING THAT COLLECT PHONE CALLS WERE NOT TO
 BE ACCEPTED BUT THAT BECAUSE PALERMO WAS NOT AWARE OF THE POLICY JOHNSON
 WOULD NOTIFY THE STATE ADMINISTRATION THAT IT WOULD NOT HAPPEN AGAIN.
 
    EARLY ON, PALERMO DECIDED THAT IT WAS TOO BURDENSOME TO FILL OUT THE
 TOLL CALL FORMS REQUIRED BY THE STATE, SO HE ARRANGED TO HAVE THE
 COMPLETE LISTING OF CALLS FURNISHED HIM EACH MONTH AND HE WOULD PICK OUT
 THOSE HE RECOGNIZED AND FILL OUT FORMS TO COVER THEM.  HE TESTIFIED THAT
 HE ALSO MAILED A CHECK FOR ALL PERSONAL CALLS EACH MONTH.  /6/
 
    ON JANUARY 9, 1978, THE STATE ACCOUNT CLERK COMPLAINED TO JOHNSON
 THAT PALERMO WAS USING THE TELEPHONE FOR OUT-OF-STATE LOCATIONS WITHOUT
 USING FTS, AND FOR IN-STATE CALLS WITHOUT USING THE TIE-LINES.  JOHNSON
 THEN WROTE A MEMO TO PALERMO ON JANUARY 16, 1978, ADVISING HIM TO USE
 DIRECT DIALING ONLY IN EXTREME EMERGENCY AND TO USE FTS FOR OUT-OF-STATE
 CALLS.
 
    ON OCTOBER 30, 1978, THE STATE ACCOUNT CLERK AGAIN WROTE JOHNSON
 STATING THAT MR. PALERMO WAS CAUSING EXTREME DELAYS IN FAILING TO
 ACCOUNT FOR HIS LONG DISTANCE CHARGES AND ASKING JOHNSON TO TAKE THE
 MATTER UP WITH PALERMO AGAIN.  THIS LETTER WAS ACCOMPANIED BY A COPY OF
 AN INTER-OFFICE MEMORANDUM BETWEEN STATE OFFICERS COMPLAINING THAT
 PALERMO HAD FAILED TO DOCUMENT SIX LONG-DISTANCE CALLS ON THE JULY 1978
 BILL.
 
    ON NOVEMBER 10, JOHNSON PREPARED A LETTER OF REPRIMAND TO PALERMO,
 AND DIRECTED HIM TO PREPARE GA741 FORMS FOR ALL HIS CALLS ON THE PAST
 BILLS AND SUBMIT THEM IMMEDIATELY, AND TO PREPARE THE GA741 AND SUBMIT
 IT THE SAME DAY AS THE CALL THEREAFTER.
 
    ON NOVEMBER 17, A STATE OFFICER SENT PALERMO A LIST OF CALLS FROM THE
 OCTOBER 13 BILL AND ASKED FOR TOLL SLIPS NO LATER THAN NOVEMBER 30.
 
    ON DECEMBER 1, THE STATE OFFICER SENT THE OCTOBER 13 BILL TO HIS
 ACCOUNT CLERK WITH A MEMO THAT THE TOLL SLIPS HAD NOT BEEN RECEIVED FROM
 PALERMO.  JOHNSON APPARENTLY SENT PALERMO A MEMO ON DECEMBER 4 REGARDING
 ADVERSE ACTION RELATING TO TELEPHONE CALLS TO WHICH PALERMO RESPONDED
 SETTING A MEETING FOR JANUARY 25, 1979, WITH THE REGIONAL DIRECTOR AND
 UNION AGENT MERISOLA.
 
    ON DECEMBER 15, JOHNSON SENT COPIES OF THE CORRESPONDENCE RELATING TO
 THE SEPTEMBER 13 TELEPHONE BILL TO PALERMO AND DIRECTED HIM TO
 PERSONALLY DELIVER TOLL SLIPS TO THE PERSON IN THE OFFICE DESIGNATED TO
 RECEIVE THEM.
 
    ON DECEMBER 29, THE STATE ACCOUNT CLERK SENT JOHNSON COPIES OF
 INTRA-STATE COMMUNICATIONS REGARDING PALERMO'S TELEPHONE USAGE, AGAIN
 COMPLAINING THAT THE CALLS HAD NOT BEEN DOCUMENTED BY TOLL SLIPS.
 
    ON FEBRUARY 20, 1979, IN SEPARATE MEMORANDA THE STATE SUPERINTENDENT
 SENT THE STATE DIRECTOR OF LABOR FINANCE THE NOVEMBER AND DECEMBER 1978
 TELEPHONE VOUCHERS AND STATED THAT NO TOLL SLIPS HAD BEEN RECEIVED FROM
 PALERMO FOR EITHER MONTH.  ON EACH VOUCHER MANY LONG DISTANCE CALLS HAD
 BEEN IDENTIFIED AS PALERMO'S.
 
    PALERMO TESTIFIED THAT "MASSIVE AMOUNTS OF MEMORANDA" WERE GENERATED
 BY JOHNSON REGARDING THIS TELEPHONE PROBLEM AND THAT HE HAD REQUESTED
 FROM STATE PERSONNEL THAT THEY INFORM HIM WHAT "CRITERIA OR MYTHOLOGY
 THEY USED TO DETERMINE THE PERSONAL CALL AND TO PROVIDE FOR HIM EACH
 PERSONAL CALL." /7/
 
                       CONCLUSIONS REGARDING PALERMO
 
    I CONCLUDE THAT THERE IS INSUFFICIENT EVIDENCE THAT PALERMO WAS
 HARASSED BY JOHNSON.  I BEGIN WITH THE ASSUMPTION THAT A SUPERVISOR HAS
 THE DUTY TO SEE THAT THE EMPLOYER'S RULES ARE ENFORCED.  IN THE ABSENCE
 OF EVIDENCE THAT THE RULES ARE ENFORCED AGAINST SOME EMPLOYEES, AND NOT
 AGAINST OTHERS, WHICH COULD BE CONSIDERED HARASSMENT, SUCH A FINDING
 WOULD FLOW ONLY FROM EVIDENCE THAT THE ENFORCEMENT WAS OVERLY VIGOROUS,
 OR THE SANCTIONS OVERLY HARSH.  I FIND NO EVIDENCE OF DISCRIMINATORY
 ENFORCEMENT OF THE RULES.  THERE IS NO EVIDENCE THAT OTHER AVERS WERE
 PERMITTED COMP TIME WITHOUT AUTHORIZATION, WERE PERMITTED ANNUAL LEAVE
 WITHOUT PRIOR AUTHORIZATION, WERE PERMITTED SICK OR EMERGENCY ANNUAL
 LEAVE WITHOUT PROMPT NOTIFICATION TO THEIR SUPERVISORS, WERE PERMITTED
 CONSTANT AND INTERMITTENT SICK LEAVE WITHOUT MEDICAL CERTIFICATION, WERE
 PERMITTED TO BE LATE IN SUBMITTING THEIR WORK PLANS OR WERE PERMITTED TO
 USE STATE-CONTROLLED TELEPHONES WITHOUT PROMPTLY ACCOUNTING FOR EACH
 CALL IN COMPLIANCE WITH THE STATE'S NORMAL PROCEDURES.  THERE IS
 EVIDENCE THAT THE RULES AND PROCEDURES GIVING RISE TO THE DISPUTES
 HEREIN WERE OFFICIALLY ADOPTED AND UNIFORMLY APPLIED.  THUS WE ARE LEFT
 TO A DETERMINATION WHETHER THE ENFORCEMENT EFFORTS OF JOHNSON WERE
 UNNECESSARILY HARSH.
 
    THE ONLY EVIDENCE REGARDING THE COMP TIME DISPUTE IS THE SINGLE
 EXCHANGE OF MEMOS ON JULY 25 AND AUGUST 1, 1977, AND PALERMO'S TESTIMONY
 THAT THERE WAS A SIMILAR OCCURRENCE ON MARCH 26, 1977, AND POSSIBLY
 OTHERS IN 1978.  ACCORDING TO PALERMO'S TESTIMONY EACH EXCHANGE OF MEMOS
 RESULTED IN HIS FILING A GRIEVANCE.  IN THE ABSENCE OF ANY EVIDENCE
 REGARDING THE OTHER ALLEGED INCIDENTS IT IS IMPOSSIBLE TO DETERMINE THAT
 THIS RULE WAS SO VIGOROUSLY ENFORCED AS TO CONSTITUTE HARASSMENT.  IT IS
 EQUALLY INFERABLE, IF THERE WERE OTHER INCIDENTS, THAT THEY STEMMED FROM
 OTHER VIOLATIONS OF THE RULES.
 
    REGARDING THE SICK LEAVE DISPUTE, THE RECORD IS PERFECTLY CLEAR THAT
 IT BEGAN WITH PALERMO'S FAILURE TO SUBMIT MEDICAL CERTIFICATION OF HIS
 ILLNESS.  HE CONTINUED TO TAKE SICK LEAVE AND FAIL TO SUBMIT EVIDENCE AS
 REQUIRED, AND IT WAS NOT UNTIL MAY 31, 1979, THAT HE FINALLY COMPLIED,
 ALTHOUGH EVEN THAT COMPLIANCE COULD SCARCELY BE SAID TO ADEQUATELY
 COMPLY WITH THE RULES.  ONLY TWO MEMORANDA, BOTH FROM REGIONAL DIRECTOR
 CATALANO, WERE PLACED IN EVIDENCE.  I FIND NEITHER OF A HARASSING TENOR,
 AND IN VIEW OF PALERMO'S FAILURE TO PROVIDE EVIDENCE, AS WAS APPARENTLY
 REQUIRED, THE IMPOSITION OF A RULE REQUIRING SUPPORT FOR ALL SICK LEAVE
 FOR THE NEXT SIX MONTHS APPEARS TO BE JUSTIFIED.
 
    AS TO THE WORK PLAN DISPUTE, THERE IS NO EVIDENCE THAT PALERMO SENT
 THE WORK PLAN ON TIME, IF HE EVER SENT ONE.  HIS TESTIMONY THAT HE SENT
 IT ON NOVEMBER 13 IS BELIED BY HIS ADMISSION ON NOVEMBER 17 TO JOHNSON
 THAT HE HAD NOT YET SENT IT.  ASSUMING THAT HE DID SEND IT ON THE 17TH,
 HE WAS QUICKLY INFORMED IT HAD NOT BEEN RECEIVED AND TOLD TO FURNISH A
 DUPLICATE.  ALTHOUGH IT WOULD SEEM THAT HE HAD A COPY, HE MADE NO EFFORT
 TO SEND IT TO JOHNSON UNTIL JANUARY WHEN HE WAS APPARENTLY ADVISED BY AN
 EEO COUNSELOR TO DO SO.
 
    PRESUMABLY AS A PROFESSIONAL STAFF MEMBER PALERMO KNEW OF THE
 NECESSITY OF FURNISHING THIS REPORT TO HIS SUPERVISOR IN A TIMELY
 FASHION.  HIS WILLINGNESS TO RELY ON HIS CLAIM THAT IT HAD BEEN LOST IN
 THE MAIL IN NO WAY EXCUSES HIS FAILURE TO FURNISH A COPY AS HE WAS
 DIRECTLY ORDERED TO DO.  FAR FROM HARASSMENT, THE MEMOS WHICH RESULTED
 FROM HIS COMPLETE INTRANSIGENCE IN THIS MATTER APPEAR TO BE VERY
 RESTRAINED.  I CANNOT IMAGINE AN EXCUSE FOR PALERMO'S FAILURE IN THIS
 MATTER, AND NONE IS OFFERED IN THE TESTIMONY OR OTHER EVIDENCE.
 
    FINALLY, WITH REGARD THE TELEPHONE ISSUES, AGAIN IT STEMMED FROM
 PALERMO'S INSISTENCE, FOR HIS OWN PURPOSES, IN DOING THINGS IN A WAY
 OTHER THAN THAT REQUIRED.  THE STATE WAS APPARENTLY WILLING TO GO ALONG
 WITH HIM AS LONG AS HE PROMPTLY COVERED HIS CALLS WITH TOLL SLIPS, BUT
 WHEN HE FAILED TO DO SO THEY ACTED TO REQUIRE HIM TO FOLLOW THE RULES.
 INSTEAD OF OBEYING THE DIRECT ORDERS OF HIS SUPERVISOR, WHICH WERE
 CLEARLY WITHIN JOHNSON'S COMPETENCE, TO FOLLOW THE NORMAL STATE
 PROCEDURE, PALERMO'S CONDUCT DETERIORATED TO THE POINT THAT FOR AT LEAST
 TWO MONTHS HE SUBMITTED NO CALL SLIPS AT ALL.  THAT HE MADE THE
 LONG-DISTANCE CALLS DOES NOT APPEAR TO BE CONTROVERTED.  IF THERE WAS A
 QUESTION WHETHER CERTAIN CALLS, AS FOR INSTANCE TO VARIOUS UNION
 OFFICERS, WERE PERSONAL OR BUSINESS CALLS OR WHETHER THE CALLS WERE OR
 WERE NOT MATTERS OF EXTREME URGENCY JUSTIFYING USE OF DIRECT DIALING
 RATHER THAN FTS OR TIE-LINES, SUCH QUESTIONS DID NOT RELIEVE HIM FROM
 PREPARING EITHER TOLL SLIPS OR HIS PERSONAL CHECK. I SEE NO HARASSMENT
 IN THE MEMORANDA, ESPECIALLY UNDER THE CIRCUMSTANCES OF THE CONTINUING
 PROBLEM TO BOTH THE STATE AND HIS OWN SUPERIORS CAUSED BY HIS
 INSUBORDINATE REFUSAL TO FOLLOW THE RULES.
 
                   ALLEGED DISCRIMINATION AGAINST RAILEY
 
    THE ONLY ALLEGATION OF DISCRIMINATION AGAINST RAILEY THAT SURVIVED
 THE HEARING WAS THE UNION'S CONTENTION THAT HIS PROMOTION WAS DELAYED
 BECAUSE HE FILED A GRIEVANCE.
 
    ACCORDING TO RAILEY'S TESTIMONY JOHNSON INFORMED THE REGIONAL
 DIRECTOR IN MAY 1977 THAT JOHNSON WAS NOT GOING TO PROMOTE RAILEY
 BECAUSE OF THE INCIDENT IN NEW ORLEANS THAT GAVE RISE TO THE GRIEVANCES.
  RAILEY BELIEVED HE SHOULD HAVE BEEN PROMOTED BY JULY 1977.  JOHNSON
 PREPARED A RECOMMENDATION FOR PROMOTION IN SEPTEMBER, 1977 AND PASSED IT
 ON TO THE REGIONAL DIRECTOR FOR ACTION, BUT IT WAS NOT ACTED UPON
 BECAUSE OF PROBLEMS IN THE WASHINGTON HIERARCHY WHICH WERE NOT INVOLVED
 WITH RAILEY'S PROBLEM.
 
    IN JANUARY 1978, PROBABLY AS A RESULT OF THE FILING OF THE
 GRIEVANCES, THE DIRECT SUPERVISION OF RAILEY, PALERMO AND LEFKOWITZ WAS
 SHIFTED FROM JOHNSON TO THE REGIONAL DIRECTOR, AND BETWEEN THEN AND
 OCTOBER A SUCCESSION OF REGIONAL DIRECTORS, CULMINATING IN MR.
 CATALANO, HAD DIRECT RESPONSIBILITY FOR THEM.
 
    IN NOVEMBER 1978, IN AN EFFORT TO GET THE PROMOTION UNDER WAY AGAIN
 JOHNSON GAVE HIM A PERFORMANCE RATING BUT WAS INFORMED THERE WAS A
 FREEZE ON PROMOTIONS.  APPARENTLY A THAW TOOK PLACE AND BY APRIL THE
 PROMOTION CAME THROUGH.
 
    QUITE CLEARLY, IF THERE WAS ANY DELAY ATTRIBUTABLE TO MR. JOHNSON, IT
 WAS BETWEEN MAY AND SEPTEMBER 1977.  THE GIST OF HIS PERSONAL COMPLAINT
 WAS THAT HE WAS NOT PROMOTED BEFORE HE FILED THE GRIEVANCE.  THE ONLY
 ACTION TAKEN BY JOHNSON AFTER THE GRIEVANCE CAME TO HIS ATTENTION WAS
 DESIGNED TO PROMOTE RAILEY RATHER THAN WITHHOLD PROMOTION.
 
                    THE ALLEGATIONS REGARDING LEFKOWITZ
 
    ALTHOUGH THE UNION ALLEGED DURING THE HEARING THAT LEFKOWITZ WAS
 HARASSED IN THE SAME WAY AS PALERMO, HE DID NOT APPEAR, AND NO EVIDENCE
 WAS ADDUCED REGARDING SUCH ALLEGED HARASSMENT.
 
                                CONCLUSIONS
 
    I FIND NO EVIDENCE THAT RESPONDENT OR ITS AGENT JOHNSON ENGAGED IN
 ANY UNFAIR LABOR PRACTICE.  IN THE FIRST PLACE ALL OF THE COURSES OF
 CONDUCT COMPLAINED OF COMMENCED BEFORE THE FILING OF THE GRIEVANCES.
 /8/
 
    ASSUMING I HAD FOUND HARASSMENT DIRECTED AT PALERMO OR THE
 WITHHOLDING OF PROMOTION OF RAILEY, SOME EVIDENCE IS NECESSARY TO
 ATTRIBUTE IT TO THEIR UNION ACTIVITIES.  THERE IS NO SCINTILLA OF
 EVIDENCE OF ANTI-UNION ANIMUS IN THIS RECORD FROM WHICH AN INFERENCE
 COULD BE DRAWN, AND THE TIMING OF THE VARIOUS COURSES OF CONDUCT RAISES
 A STRONG INFERENCE TO THE CONTRARY.  I FIND NO SUBSTANTIAL EVIDENCE OF
 THE COMMISSION OF ANY UNFAIR LABOR PRACTICE.
 
                              RECOMMENDATION
 
    I RECOMMEND THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
    WASHINGTON, D.C.
 
    AUGUST 30, 1979
 
                               PAUL E. WEIL
 
                              HEARING OFFICER
 
    /1/ SECTION 6(E) PROVIDES THAT:
 
    IF ANY MATTERS ARISING UNDER PARAGRAPH (A) OF THIS SECTION INVOLVE
 THE DEPARTMENT OF LABOR,
 
    THE DUTIES OF THE ASSISTANT SECRETARY (FOR LABOR-MANAGEMENT
 RELATIONS) DESCRIBED IN PARAGRAPHS
 
    (A) AND (B) OF THIS SECTION SHALL BE PERFORMED BY A MEMBER OF THE
 CIVIL SERVICE COMMISSION
 
    DESIGNATED BY THE CHAIRMAN OF THE COMMISSION.
 
    SECTION 6(A)(4) REQUIRES THE ASSISTANT SECRETARY TO DECIDE