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 UNFAIR
LABOR PRACTICE COMPLAINTS.
/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 OF 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 UNION ASKED FOR AND RECEIVED A THREE-WEEK EXTENSION OF TIME
TO FILE A BRIEF, BUT TO THE DATE OF THIS WRITING HAS NOT FILED ONE.
/4/ APPARENTLY RAILEY AND LEFKOWITZ WERE SENIOR TO JOHNSON; PALERMO
WAS NOT EMPLOYED AS AVER UNTIL SEPTEMBER, 1976.
/5/ PALERMO CALLED IN AT 11:30 TO SAY HE WAS ON UNSCHEDULED ANNUAL
LEAVE.
/6/ THE UNION PLACED IN EVIDENCE A CHECK FOR $.52 MADE OUT TO THE
TELEPHONE COMPANY. PALERMO TESTIFIED: "IF IT (WERE) A PERSONAL CALL,
IT WAS USUALLY FOLLOWED UP IN ALL INSTANCES WITH A PERSONAL CHECK.
JOHNSON TESTIFIED THAT THE CHECK PUT INTO EVIDENCE WAS THE ONLY CHECK
MADE BY PALERMO FOR PERSONAL PHONE CALLS.
/7/ NO ATTEMPT WAS MADE AT THE HEARING TO DETERMINE THE NATURE OF THE
TELEPHONE CHARGES. HOWEVER I NOTE THAT THE NOVEMBER AND DECEMBER
VOUCHERS REVEAL 15 CALLS FOR A TOTAL IN EXCESS OF $50.00 TO THE
TELEPHONE NUMBER IN NEW JERSEY AT WHICH UNION AGENT MERISOLA CAN BE
REACHED, ACCORDING TO HIS ENTRY ON THE COMPLAINT IN THIS CASE.
/8/ IT IS NOTEWORTHY THAT NONE OF THE GRIEVANCES WERE FILED THROUGH
THE UNION, NONE OF THE GRIEVANTS SENT COPIES TO THE UNION, AND ONLY
PALERMO SOUGHT TO INVOLVE THE UNION IN THE PROCESSING OF THE GRIEVANCE.