Department of the Treasury, Internal Revenue Service and IRS Richmond District Office (Respondents) and National Treasury Employees Union and NTEU Chapter 48 (Complainants) 



[ v03 p18 ]
03:0018(3)CA
The decision of the Authority follows:


 3 FLRA No. 3
 
 DEPARTMENT OF THE TREASURY,
 INTERNAL REVENUE SERVICE AND
 IRS RICHMOND DISTRICT OFFICE
 Respondents
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 AND NTEU CHAPTER 48
 Complainants
 
                                            Assistant Secretary
                                            Case No. 22-09522(CA)
 
                            DECISION AND ORDER
 
    ON OCTOBER 16, 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.  THEREAFTER, THE COMPLAINANTS
 FILED EXCEPTIONS 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
 (45 F.R. 3482, JANUARY 17, 1980).  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 COMPLAINANTS' EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATION
 EXCEPT AS MODIFIED HEREIN.  /0/ IN REACHING HIS CONCLUSION THAT THE
 RESPONDENTS HAD NOT VIOLATED SECTION 19(A)(6) OF THE EXECUTIVE ORDER,
 THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENTS HAD NOT
 "INTENDED TO ESTABLISH A NEW CONDITION OF EMPLOYMENT AND CHANGE ITS
 POLICIES, PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS . . . " AS
 INTENT IS NOT AN ELEMENT OF A SECTION 19(A)(6) VIOLATION, THE AUTHORITY
 DOES NOT RELY ON THIS PORTION OF THE ADMINISTRATIVE LAW JUDGE'S
 REASONING IN ADOPTING HIS RECOMMENDATION TO DISMISS THE COMPLAINT.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 22-09522(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    GEORGE T. BELL, ESQUIRE
 
    ASSISTANT REGIONAL COUNSEL
 
    GENERAL LEGAL SERVICES
 
    INTERNAL REVENUE SERVICE
 
    2 PENN CENTER PLAZA
 
    PHILADELPHIA, PA 19102
 
                            FOR THE RESPONDENTS
 
    MICHAEL MAUER, ESQUIRE
 
    ASSISTANT COUNSEL
 
    NATIONAL TREASURY EMPLOYEES UNION
 
    1730 K STREET, N.W., SUITE 1101
 
    WASHINGTON, D.C.  20006
 
                           FOR THE COMPLAINANTS
 
    BEFORE:  GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS CASE AROSE PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED, AS A
 RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE NATIONAL
 TREASURY EMPLOYEES UNION (NTEU) AND NTEU CHAPTER 48 (HEREINAFTER CALLED
 THE COMPLAINANT OR UNION), AGAINST THE INTERNAL REVENUE SERVICE (IRS)
 AND IRS RICHMOND DISTRICT OFFICE (HEREINAFTER CALLED THE RESPONDENTS).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT THE RESPONDENTS MONITORED
 THE TELEPHONE CALLS OF WILLIAM GROGAN, AN ASSISTANT STEWARD, WHO HAD
 PREVIOUSLY WON AN ARBITRATION DECISION, AND USED SUCH INFORMATION AS THE
 BASIS FOR A NEGATIVE RECORDATION CONCERNING MR.  GROGAN.  THE COMPLAINT
 ALLEGED THAT SUCH ACTIONS INTERFERED WITH EMPLOYEES IN THE EXERCISE OF
 RIGHTS ASSURED BY THE ORDER, IN VIOLATION OF SECTION 19(A)(1),
 DISCOURAGED MEMBERSHIP IN A LABOR ORGANIZATION BY DISCRIMINATION IN
 REGARD TO CONDITIONS OF EMPLOYMENT, IN VIOLATION OF SECTION 19(A)(2),
 AND CHANGED PERSONNEL POLICIES AND PRACTICES AND MATTERS AFFECTING
 WORKING CONDITIONS WITHOUT PRIOR NOTIFICATION AND NEGOTIATION WITH THE
 UNION, IN VIOLATION OF SECTION 19(A)(6) OF THE EXECUTIVE ORDER.  /1/
 RESPONDENT DENIED THE ALLEGATIONS AND ASSERTED THAT THE COMPLAINT WAS
 NOT TIMELY FILED.
 
    PURSUANT TO A NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR,
 WASHINGTON REGION, FEDERAL LABOR RELATIONS AUTHORITY, A HEARING WAS HELD
 IN THIS MATTER BEFORE THE UNDERSIGNED IN RICHMOND, VIRGINIA.  BOTH
 PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO ADDUCE RELEVANT EVIDENCE, AND TO EXAMINE AND CROSS-EXAMINE
 WITNESSES AND FILE BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, STIPULATIONS, AND OTHER
 RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE
 FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  COMPLAINANT IS THE EXCLUSIVE BARGAINING REPRESENTATIVE OF THE
 EMPLOYEES WORKING IN RESPONDENT'S RICHMOND, VIRGINIA DISTRICT OFFICE AND
 IS A PARTY TO "MULTI DISTRICT AGREEMENT NUMBER THREE" COVERING SOME 57
 IRS DISTRICTS THROUGHOUT THE UNITED STATES.
 
    2.  WILLIAM K. GROGAN WAS EMPLOYED BY THE RICHMOND DISTRICT OFFICE,
 IRS, FROM JUNE 30, 1972 TO JANUARY 3, 1979.  DURING THE PERIOD JUNE 1975
 TO JANUARY 1979 MR.  GROGAN SERVED AS AN ATTORNEY IN THE ESTATE AND GIFT
 TAX DIVISION.
 
    3.  BEGINNING IN 1975 AND CONTINUING DURING THE PERIOD ENCOMPASSED BY
 THE COMPLAINT, MR. GROGAN OCCASIONALLY SERVED AS AN NTEU ALTERNATE AND
 ACTING UNION STEWARD.
 
    ON REPORTS PREPARED BY MR. GROGAN, HE RECORDED THE FOLLOWING AMOUNT
 OF TIME DEVOTED TO STEWARD ACTIVITIES:
 
    MONTH INDIVIDUAL BANK TIME CHAPTER BANK TIME
 
    JAN. 1978 0 HOURS 0
 
    FEB. 1978 3 HOURS 0
 
    MARCH 1978 0 HOURS 0
 
    APRIL 1978 1 HOUR 30 MINUTES 0
 
    MAY 1978 0 HOURS 0
 
    JUNE 1978 4 HOURS 4 HOURS
 
    JULY 1978 8 HOURS & 15 MINUTES 0 HOUR
 
    AUGUST 1978 3 HOURS & 45 MINUTES 0 HOUR
 
    4.  IN MARCH 1976 MR. GROGAN, THROUGH THE UNION, FILED THREE
 GRIEVANCES WITH MR. RUSSELL JOHNSON, HIS SUPERVISOR, CONCERNING MR.
 GROGAN'S PERFORMANCE EVALUATION.  THE ACTIVITY DENIED THESE GRIEVANCES.
 AN ARBITRATION HEARING ARISING OUT OF THE GRIEVANCES WAS HELD ON APRIL
 29, 1977.  AN ARBITRATION AWARD IN MR. GROGAN'S FAVOR WAS ISSUED ON
 SEPTEMBER 22, 1977.
 
    5.  IN APRIL 1977 MR. JOHNSON RECOMMENDED MR. GROGAN FOR A SPECIAL
 ACHIEVEMENT AWARD IN RECOGNITION OF THE QUALITY OF HIS PERFORMANCE
 DURING THE PERIOD MAY 1, 1976 TO APRIL 30, 1977.  MR. GROGAN RECEIVED
 THE AWARD ON AUGUST 8, 1977.
 
    6.  ON OCTOBER 12, 1977 MR. JOHNSON RECOMMENDED MR. GROGAN FOR THE
 POSITION OF SPECIAL AGENT, A POSITION FOR WHICH MR. GROGAN HAD APPLIED.
 
    7.  ON NOVEMBER 11, 1977 MR. JOHNSON RENDERED A PERFORMANCE
 EVALUATION ON MR. GROGAN WHICH RATED MR. GROGAN ABOVE AVERAGE IN SEVEN
 AREAS, AND GAVE HIM AN OVERALL ABOVE AVERAGE RATING.  IN FEBRUARY 1977
 MR. JOHNSON HAD RECEIVED AN ABOVE AVERAGE RATING IN ONLY FIVE AREAS AND
 AN OVERALL PERFORMANCE RATING OF AVERAGE.  IN BOTH RATINGS MR. GROGAN
 WAS RATED AVERAGE IN UTILIZATION OF TIME.
 
    8.  DURING THE PERIOD ENCOMPASSED BY THE COMPLAINT IT WAS THE
 PRACTICE OF IRS EMPLOYEES TO RECEIVE AND MAKE PERSONAL TELEPHONE CALLS
 ON IRS TELEPHONES;  HOWEVER, IT WAS UNDERSTOOD THAT OFFICIAL TELEPHONES
 COULD NOT BE USED UNREASONABLY FOR PERSONAL BUSINESS AND THAT PERSONAL
 CALLS WERE TO BE LIMITED.
 
    9.  DURING THE PERIOD FROM THE FALL OF 1977 TO AUGUST 1978 MR.
 GROGAN RECEIVED AND MADE A LARGE NUMBER OF TELEPHONE CALLS.  SOME OF THE
 TELEPHONE CALLS WERE DIRECTLY RELATED TO MR. GROGAN'S UNION
 RESPONSIBILITIES.  HOWEVER, THE MAJORITY OF THE CALLS WERE PERSONAL IN
 NATURE AND NOT RELATED TO IRS OR UNION BUSINESS.  A LARGE PORTION OF MR.
 GROGAN'S WORK DAY WAS SPENT RECEIVING AND PLACING PERSONAL TELEPHONE
 CALLS.  SINCE MR. GROGAN DID NOT HAVE A TELEPHONE IN HIS OWN OFFICE, HE
 USUALLY USED TELEPHONES NEAR THE DESKS OF CATHERINE VINES AND WALTER P.
 JONES.  MR. GROGAN DISTURBED THE WORK OF THESE EMPLOYEES AS WELL AS HIS
 OWN WORK WITH HIS PERSONAL TELEPHONE CONVERSATIONS.
 
    10.  MR. GROGAN USED THE TELEPHONE MORE FREQUENTLY THAN OTHER
 EMPLOYEES AND RECEIVED AND MADE APPROXIMATELY THREE TIMES THE NUMBER OF
 PERSONAL TELEPHONE CALLS RECEIVED AND MADE BY OTHER ATTORNEYS IN THE
 UNIT.
 
    11.  IN LATE JANUARY OR EARLY FEBRUARY 1978, CATHERINE VINES, AN
 EVALUATION CLERK, COMPLAINED TO MR. JOHNSON THAT MR. GROGAN WAS USING
 THE TELEPHONE NEAR HER DESK FOR PERSONAL CALLS TO THE EXTENT THAT SHE
 COULD NOT DO HER WORK.
 
    12.  DURING JANUARY OR EARLY FEBRUARY, 1978, MR. JOHNSON DISCUSSED
 WITH MR. GROGAN WHAT MR. JOHNSON BELIEVED WAS AN EXCESSIVE AMOUNT OF
 INCOMING TELEPHONE CALLS RECEIVED BY MR. GROGAN.  MR. JOHNSON INDICATED
 TO MR. GROGAN THAT HE WAS CONCERNED ABOUT THE NUMBER OF TIMES MR. GROGAN
 WAS ON THE PHONE, THE LENGTH OF HIS CONVERSATIONS, AND THE FACT THAT HE
 WAS DISTURBING HIS OWN WORK AND THE WORK OF OTHERS.
 
    13.  ON OR BEFORE FEBRUARY 17, 1978, MR. JOHNSON DIRECTED GROUP
 CLERKS OF THE ESTATE AND GIFT TAX GROUP TO PREPARE FOR HIM A COPY OF ALL
 INCOMING TELEPHONE MESSAGES LEFT FOR MR. GROGAN.  MR. JOHNSON CONCLUDED
 THAT SUCH DOCUMENTATION MIGHT BE NECESSARY FOR DISCIPLINARY ACTION SINCE
 MR. GROGAN HAD NOT IMPROVED HIS TELEPHONE HABITS FOR ANY SUSTAINED
 PERIOD OF TIME AS A RESULT OF THE CONFERENCES.
 
    14.  ON OR ABOUT MARCH 15, 1978, MR. GROGAN OBSERVED A DUPLICATE COPY
 OF ONE OF HIS TELEPHONE MESSAGES ON THE DESK OF A GROUP CLERK AND
 EXPRESSED HIS OBJECTIONS TO MR. JOHNSON.  THIS WAS THE FIRST MR. GROGAN
 KNEW THAT COPIES OF HIS INCOMING MESSAGES WERE BEING RETAINED.  MR.
 JOHNSON ADVISED MR. GROGAN THAT HE CONSIDERED THIS PROCEDURE A NECESSARY
 STEP TO CONTROL WHAT WAS A MISUSE OF THE TELEPHONE.
 
    15.  IN APRIL 1978 MR. JOHNSON NOTICED THAT THE NUMBER OF INCOMING
 MESSAGES FOR MR. GROGAN BEGAN TO DECREASE.  HE FOUND THAT THE NUMBER OF
 INCOMING CALLS HAD NOT CHANGED, BUT THE CALLERS, UPON FINDING THAT MR.
 GROGAN WAS UNAVAILABLE, WERE DECLINING TO LEAVE MESSAGES.
 
    16.  ON APPROXIMATELY MAY 1, 1978, MR. JOHNSON DIRECTED GROUP CLERKS
 IN THE ESTATE AND GIFT TAX GROUP TO KEEP A TALLY OF THE NUMBER OF
 INCOMING TELEPHONE CALLS RECEIVED BY MR. GROGAN.  THIS TALLY WAS
 ACCOMPLISHED BY PLACING A TICK MARK ON THE CLERKS' DESK CALENDARS.
 BETWEEN MAY 1 AND AUGUST 4, 1978, MR. GROGAN RECEIVED APPROXIMATELY 220
 TELEPHONE CALLS.  IN JUNE, 1978, MR. GROGAN FIRST BECAME AWARE THAT THIS
 TALLY OF THE NUMBER OF INCOMING TELEPHONE CALLS WAS BEING KEPT.
 
    17.  WITH THE EXCEPTION OF MR. GROGAN, MR. JOHNSON PREVIOUSLY HAD
 NEVER EITHER KEPT COPIES OF PHONE MESSAGES RECEIVED BY AN EMPLOYEE OR
 KEPT A TALLY OF THE NUMBER OF PHONE CALLS RECEIVED BY ANY EMPLOYEE IN
 HIS GROUP.
 
    18.  MANAGEMENT PROVIDED NO NOTIFICATION TO THE NTEU OF ITS KEEPING A
 TALLY OF THE NUMBER OF PHONE CALLS RECEIVED BY MR. GROGAN, OR OF ITS
 COPYING PHONE MESSAGES LEFT FOR MR. GROGAN.
 
    19.  ON AUGUST 9, 1978 MR. JOHNSON SENT MR. GROGAN A MEMORANDUM
 CONCERNING HIS PERFORMANCE RATING.  MR. JOHNSON STATED THAT ALTHOUGH MR.
 GROGAN'S PERFORMANCE FOR THE PAST TWELVE MONTHS HAD BEEN RATED AS
 SATISFACTORY, HIS PERFORMANCE IN THE AREAS OF EXAMINATION PLANNING,
 SCHEDULING, AND TIME UTILIZATION SINCE OCTOBER 1, 1977 HAD BECOME AN
 INCREASING CONCERN.  MR. JOHNSON SET FORTH FIVE EXAMPLES TO ILLUSTRATE
 THE PROBLEM.  ONE OF THESE EXAMPLES, AS AMENDED ON OCTOBER 3, 1978, WAS
 AS FOLLOWS:
 
    (1) PERSONAL PHONE CALLS-- YOU AND I HAVE HAD SEVERAL COUNSELLING
 SESSIONS CONCERNING THIS
 
    PROBLEM.  ACCORDING TO THE GROUP CLERK'S RECORD YOU HAD OVER 220
 PHONE CALLS FROM MAY 1, 1978,
 
    TO AUGUST 4, 1978.  WHILE SOME OF THE CALLS WERE BUSINESS RELATED,
 MANY OF THEM MUST HAVE BEEN
 
    PERSONAL IN NATURE.  RECEIVING AN AVERAGE OF 73 CALLS PER MONTH IS A
 SERIOUS DISRUPTION TO YOU
 
    AND TO THE CLERICAL STAFF HAVING TO ANSWER THE CALLS.
 
    20.  DURING THE PERIOD JULY 1977 THROUGH AUGUST 1978, THERE WERE 13
 GRIEVANCES FILED IN THE RICHMOND DISTRICT.  MR. GROGAN REPRESENTED ONE
 GRIEVANT DURING THIS TIME PERIOD IN A GRIEVANCE WHICH WAS FILED ON JULY
 7, 1978.  THE AGENCY DENIED THE GRIEVANCE AS BEING UNTIMELY FILED, AND
 ALTHOUGH IT PROCEEDED THROUGH FOUR STEPS OF THE NEGOTIATED GRIEVANCE
 PROCEDURE, IT WAS NEVER APPEALED TO ARBITRATION.
 
    21.  FROM THE DATE OF MR. GROGAN'S GRIEVANCE (MARCH 1976) UNTIL THE
 FILING OF THE UNFAIR LABOR PRACTICE (SEPTEMBER 6, 1978), MR. GROGAN'S
 ARBITRATION WAS THE ONLY ONE IN THE RICHMOND DISTRICT.
 
    22.  THERE ARE A TOTAL OF 15 STEWARD POSITIONS IN THE RICHMOND
 DISTRICT, INCLUDING THE CHIEF STEWARD, STEWARDS AND ALTERNATE STEWARDS.
 
    23.  MR. GEORGE B. COUSINS, WHO WAS THE PRESIDENT OF NTEU CHAPTER 48
 FROM NOVEMBER 1976 UNTIL MAY 1977 AND FROM OCTOBER 1978 TO PRESENT,
 RECEIVED A HIGH QUALITY INCREASE AWARD ON AUGUST 27, 1978 FOR THE PERIOD
 AUGUST 10, 1977 TO AUGUST 10, 1978.  HE WAS ALSO CHIEF STEWARD FROM 1972
 UNTIL OCTOBER 1978.
 
    MR. ROBERT M. SPENCER, WHO WAS PRESIDENT FROM MAY 1977 TO SEPTEMBER
 1978 AND EXECUTIVE VICE PRESIDENT FROM OCTOBER 1978 TO PRESENT, RECEIVED
 A HIGH QUALITY INCREASE AWARD ON DECEMBER 3, 1978 FOR THE PERIOD
 NOVEMBER 1, 1977 TO NOVEMBER 1, 1978.  MR. CHARLES S.  BAILEY, WHO WAS A
 SHOP STEWARD FROM 1974 UNTIL OCTOBER 1978 WHEN HE BECAME CHIEF STEWARD
 AND WAS UNDER MR. RUSSELL JOHNSON'S SUPERVISION SINCE JUNE 1975 TO
 PRESENT, RECEIVED A SUGGESTION AWARD ON JUNE 2, 1977.  MR. JOHNSON HAS A
 CORDIAL RELATIONSHIP WITH MR. BAILEY.
 
    24.  IN FEBRUARY 1978 MR. GROGAN APPLIED FOR ADMINISTRATIVE LEAVE TO
 ATTEND A FEDERAL BAR ASSOCIATION MEETING ON TAXATION IN WASHINGTON, D.C.
 AT WHICH THE COMMISSIONER, IRS WOULD SPEAK.  MR. GROGAN'S IMMEDIATE
 SUPERVISOR, MR. JOHNSON, AS WELL AS THE SECOND-LINE SUPERVISOR AND
 TRAINING OFFICER APPROVED ADMINISTRATIVE LEAVE, BUT THE DISTRICT
 DIRECTOR DISAPPROVED THE REQUEST FOR THE REASON THAT IT WAS NOT IRS
 POLICY TO APPROVE TRAINING IN ORDER TO ATTEND A MEETING WHERE AN IRS
 OFFICER IS THE SPEAKER.  MR. GROGAN DISAGREED WITH THIS INTERPRETATION
 OF THE POLICY.  THERE IS NO EVIDENCE THAT OTHER IRS EMPLOYEES SIMILARLY
 SITUATED WERE ALLOWED ADMINISTRATIVE LEAVE FOR ATTENDANCE AT THE
 MEETING.
 
    25.  IN MAY 1978 MR. GROGAN APPLIED FOR ADMINISTRATIVE LEAVE FOR 3
 DAYS TO ATTEND ANOTHER TRAINING SESSION.  IRS PAID THE REGISTRATION FEE
 AND GRANTED MR.  GROGAN ADMINISTRATIVE LEAVE FOR ONE DAY TO ATTEND A
 SESSION PERTAINING TO HIS PRIMARY DUTIES.  IRS GRANTED ADMINISTRATIVE
 LEAVE TO ANOTHER EMPLOYEE FOR SUBSEQUENT DAYS SO THAT THE EMPLOYEE COULD
 ALSO ATTEND MEETINGS DEALING WITH HIS DUTIES.  THERE IS NO EVIDENCE THAT
 ANY OTHER EMPLOYEE WAS ALLOWED ADMINISTRATIVE LEAVE FOR THREE DAYS TO
 ATTEND THE ENTIRE MEETING.
 
                DISCUSSION, CONCLUSIONS, AND RECOMMENDATION
 
    IN MAKING THE FOREGOING FINDINGS, I GAVE GREATER WEIGHT TO THE
 TESTIMONY OF RESPONDENTS' WITNESSES, INCLUDING MR. GROGAN'S SUPERVISOR
 AND THREE CO-WORKERS, THAN TO THAT OF COMPLAINANTS' ONLY WITNESS, MR.
 GROGAN.  I FOUND THE TESTIMONY OF RESPONDENTS' WITNESSES TO BE
 CONSISTENT ON ESSENTIAL ASPECTS, FORTHRIGHT, AND CONVINCING.
 
    RESPONDENTS CONTEND THAT THE ALLEGATION THAT MR. GROGAN'S TELEPHONE
 MESSAGES WERE COPIED, AS OPPOSED TO TALLIED, IN VIOLATION OF SECTION
 19(A)(1) OF THE ORDER, IS UNTIMELY.  29 C.F.R. 203.2(A)(2) REQUIRES THAT
 A PARTY DESIRING TO FILE A COMPLAINT MUST FIRST FILE A CHARGE "WITHIN
 SIX (6) MONTHS OF THE OCCURRENCE OF THE ALLEGED UNFAIR LABOR PRACTICE."
 RESPONDENTS POINT OUT THAT CLERKS BEGAN MAKING COPIES OF MR. GROGAN'S
 MESSAGES ON APPROXIMATELY FEBRUARY 17, 1978, BUT THE CHARGE WAS NOT
 FILED UNTIL SEPTEMBER 6, 1978, OVER SIX MONTHS LATER.
 
    THE CHARGE, FILED ON SEPTEMBER 6, 1978, ALLEGES, IN PART, THAT THE
 SUPERVISOR "KEPT A FILE OF ALL INCOMING TELEPHONE CALLS AND ALSO A COPY
 OF ALL MESSAGES LEFT . . . " THE RECORD REFLECTS THAT THE COPYING OF
 MESSAGES CONTINUED FOR SOME TIME, INCLUDING A MESSAGE COPIED ON MARCH
 15, 1978, WHICH WAS WITHIN SIX MONTHS PERIOD PRIOR TO THE FILING OF THE
 CHARGE.  THUS, I CONCLUDE THAT THE CHARGE ALLEGED A CONTINUING VIOLATION
 AND WAS TIMELY WITHIN THE REQUIREMENTS OF SECTION 203.2(A)(2) OF THE
 REGULATIONS.  VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL,
 MUSKOGEE, OKLAHOMA, 3 A/SLMR 491, A/SLMR NO. 301(1973).
 
    29 C.F.R. 203.15 REQUIRES THAT, "A COMPLAINANT IN ASSERTING A
 VIOLATION OF THE ORDER SHALL HAVE THE BURDEN OF PROVING THE ALLEGATIONS
 OF THE COMPLAINT BY A PREPONDERANCE OF THE EVIDENCE." COMPLAINANTS HAVE
 NOT MET THIS BURDEN.
 
    COMPLAINANTS CONTEND THAT RESPONDENTS' ACTION IN KEEPING A TALLY OF
 THE NUMBER OF INCOMING CALLS RECEIVED BY MR. GROGAN AND MAKING COPIES OF
 TELEPHONE MESSAGES LEFT FOR MR. GROGAN VIOLATED SECTION 19(A)(1) OF THE
 ORDER.  /1A/ COMPLAINANTS ASSERT THAT SUCH ACTION INTERFERED WITH MR.
 GROGAN'S RIGHT TO PRESENT A GRIEVANCE, ASSIST AND BE AN ALTERNATE
 STEWARD OF A LABOR ORGANIZATION, AND THAT IT CHILLED OTHER EMPLOYEES IN
 THE EXERCISE OF THEIR RIGHTS.
 
    THE RECORD ESTABLISHED THAT MR. GROGAN'S TELEPHONE CALLS WERE
 MONITORED IN THE ABOVE MANNER BECAUSE MANAGEMENT HAD REASONABLE CAUSE
 TO
 BELIEVE THAT MR. GROGAN WAS MISUSING OFFICIAL TELEPHONES FOR PERSONAL
 BUSINESS.  THE RECORD DOES NOT INDICATE THAT THE INFORMATION GAINED WAS
 USED BY MANAGEMENT IN ANY MANNER EXCEPT TO COMPILE STATISTICS WITH
 REGARD TO MR. GROGAN'S POSSIBLE MISUSE OF GOVERNMENT TELEPHONES.  THESE
 STATISTICS WERE NOT OTHERWISE BROKEN DOWN IN ANY MANNER BY CALLER OR
 SUBJECT MATTER, AND THERE IS NO EVIDENCE THAT MR. GROGAN'S SUPERVISOR
 DISSEMINATED SUCH INFORMATION OUTSIDE HIS OFFICE.  THE RECORD DOES NOT
 ESTABLISH THAT THIS ACTIVITY INTERFERED WITH, RESTRAINED, OR COERCED MR.
 GROGAN IN ANY MANNER WITH RESPECT TO HIS REPRESENTATIONAL DUTIES OR IN
 THE EXERCISE OF OTHER RIGHTS ASSURED BY THE ORDER.
 
    THE RECORD REFLECTS THAT MR. GROGAN'S USE OF THE TELEPHONE FOR
 PERSONAL BUSINESS WAS WELL KNOWN IN HIS OFFICE.  WHILE THE MONITORING OF
 AN ALTERNATE STEWARD'S TELEPHONE CALLS RAISES IMMEDIATE AND SERIOUS
 QUESTIONS CONCERNING THE POSSIBLE SCREENING OF CALLS TO UNION OFFICIALS
 AND INTERFERENCE WITH THE UNION'S EFFECTIVE MEANS OF COMMUNICATION, I DO
 NOT FIND THAT SUCH ACTIVITY, CONDUCTED FOR THE REASONS AND IN THE MANNER
 SET FORTH IN THIS RECORD, WAS INHERENTLY DESTRUCTIVE OF BASIC RIGHTS
 ASSURED BY THE ORDER, OR THAT IT HAD A CHILLING EFFECT ON THE EXERCISE
 OF SUCH RIGHTS BY OTHER EMPLOYEES.  COMPARE U.S. DEPARTMENT OF HEALTH,
 EDUCATION AND WELFARE, ET. AL, A/SLMR NO. 1080(1978).
 
    COMPLAINANTS CONTEND THAT RESPONDENTS ACTIVITY VIOLATED SECTION
 19(A)(2) OF THE ORDER /2/ BECAUSE IT WAS RETALIATION FROM MR. GROGAN'S
 HAVING WON A GRIEVANCE THROUGH ARBITRATION AND BEING AN ALTERNATE
 STEWARD.  A PREPONDERANCE OF THE EVIDENCE DOES NOT SUPPORT THE
 ALLEGATION.
 
    THERE WAS NO SHOWING OF DISCRIMINATORY MOTIVATION OR DISPARITY OF
 TREATMENT BASED ON UNION MEMBERSHIP.  THE RECORD DEMONSTRATES THAT MR.
 GROGAN WAS THE ONLY EMPLOYEE IN THE OFFICE WHO USED THE TELEPHONE FOR
 PERSONAL USE TO SUCH AN EXTENT.  PRIOR TO THIS PROBLEM, BUT FOLLOWING
 MR. GROGAN'S FILING OF A GRIEVANCE INVOLVING MR. JOHNSON, MR. JOHNSON
 HAD RECOMMENDED MR. GROGAN FOR A SPECIAL ACHIEVEMENT AWARD,
 RECOMMENDED
 HIM FOR ANOTHER POSITION, AND GAVE HIM A MORE FAVORABLE PERFORMANCE
 RATING IN NOVEMBER 1977 THAN PREVIOUSLY.  THE RECORD DOES NOT SHOW THAT
 MR. GROGAN WAS SUBJECTED TO DIFFERENT STANDARDS THAN OTHER EMPLOYEES IN
 THE GRANTING OF ADMINISTRATIVE LEAVE.  THERE WAS NO EVIDENCE OF
 ANTI-UNION ANIMUS AND THE RECORD REFLECTS THAT MR.  JOHNSON'S RELATIONS
 WITH OTHER UNION OFFICIALS ARE CORDIAL AND COOPERATIVE.
 
    ACCORDINGLY, IT IS CONCLUDED THAT RESPONDENTS' ACTIONS AS ALLEGED IN
 THE COMPLAINT DID NOT CONSTITUTE DISPARATE TREATMENT AND DISCRIMINATION
 IN REPRISAL FOR MR.  GROGAN HAVING EXERCISED HIS RIGHTS UNDER THE
 EXECUTIVE ORDER, AND WERE NOT MOTIVATED, EVEN IN PART, BY ANTI-UNION
 ANIMUS.
 
    COMPLAINANTS CONTEND THAT RESPONDENTS, BY KEEPING A TALLY OF THE
 NUMBER OF INCOMING CALLS RECEIVED BY MR. GROGAN AND MAKING COPIES OF
 TELEPHONE MESSAGES LEFT FOR MR. GROGAN, UNILATERALLY CHANGED PERSONNEL
 POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS IN
 VIOLATION OF SECTION 19(A)(6) OF THE ORDER.  I DO NOT AGREE.
 
    WHILE SUCH ACTION MAY BE AN INDICATION OF DISCRIMINATION, IT FALLS
 SHORT OF A UNILATERAL CHANGE IN EMPLOYMENT CONDITIONS.  I AM NOT
 CONVINCED THAT RESPONDENTS INTENDED TO ESTABLISH A NEW CONDITION OF
 EMPLOYMENT AND CHANGE ITS POLICIES, PRACTICES AND MATTERS AFFECTING
 WORKING CONDITIONS, OR, ASSUMING SUCH A CHANGE, THAT IT MATERIALLY
 AFFECTED, OR HAD A SUBSTANTIAL IMPACT ON PERSONNEL POLICIES, PRACTICES,
 AND GENERAL WORKING CONDITIONS.  CF.  U.S.  CUSTOMS SERVICE, REGION IV,
 MIAMI, FLORIDA, A/SLMR NO. 1118(1978).  THE POLICY AND PRACTICE WAS FOR
 EMPLOYEES TO LIMIT PERSONAL TELEPHONE CALLS AND NOT TO USE GOVERNMENT
 TELEPHONES UNREASONABLY FOR PERSONAL BUSINESS.  THE RECORDS OF MR.
 GROGAN'S CALLS WERE MADE IN ORDER TO ENFORCE THIS POLICY AND DETERMINE
 IF HE WAS ADHERING TO IT.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENTS HAVE NOT ENGAGED IN CONDUCT PROHIBITED
 BY SECTIONS 19(A)(1), (2), AND (6) OF THE EXECUTIVE ORDER, IT IS HEREBY
 RECOMMENDED THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  OCTOBER 16, 1979
 
    WASHINGTON, D.C.
 
    /0/ 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.
 
    /1/ PRIOR TO THE HEARING, BY LETTER DATED AUGUST 10, 1979, THE
 COMPLAINANT REQUESTED TO WITHDRAW AN ALLEGATION IN THE COMPLAINT DEALING
 WITH THE INITIATION OF AN INVESTIGATION OF MR. GROGAN.
 
    /1A/ SECTION 19(A)(1) OF THE ORDER PROVIDES THAT AGENCY MANAGEMENT
 SHALL NOT "INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE
 EXERCISE OF THE RIGHTS ASSURED BY THIS ORDER." SECTION 1(A) OF THE ORDER
 GUARANTEES TO EACH EMPLOYEE OF THE EXECUTIVE BRAN