Internal Revenue Service, Washington, DC (Respondent) and National Treasury Employees Union (Charging Party)



[ v06 p96 ]
06:0096(23)CA
The decision of the Authority follows:


 6 FLRA No. 23
 
 INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C.
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case No. 5-CA-230
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE INTERNAL REVENUE
 SERVICE (RESPONDENT) HAD ENGAGED IN THE UNFAIR LABOR PRACTICES ALLEGED
 IN THE COMPLAINT, AND RECOMMENDING THAT IT CEASE AND DESIST THEREFROM
 AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED
 JUDGE'S RECOMMENDED DECISION AND ORDER.  THEREAFTER, THE RESPONDENT
 FILED EXCEPTIONS TO THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND A
 SUPPORTING BRIEF.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (STATUTE), THE AUTHORITY HAS REVIEWED
 THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO
 PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON
 CONSIDERATION OF THE JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
 ENTIRE RECORD IN THIS CASE, INCLUDING THE EXCEPTIONS AND SUPPORTING
 BRIEF OF THE RESPONDENT, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATION ONLY TO THE EXTENT CONSISTENT
 HEREWITH.
 
    THE COMPLAINT HEREIN ALLEGED THAT RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (2) OF THE STATUTE BY ITS ACTION IN REFUSING TO PROMOTE
 EMPLOYEE CAROL LA FOLLETTE TO THE POSITION OF REVENUE REPRESENTATIVE
 BECAUSE SHE FILED GRIEVANCES AND BECAUSE OF CONDUCT EXHIBITED DURING THE
 COURSE OF A GRIEVANCE MEETING.  THE RESPONDENT ASSERTED THAT LA FOLLETTE
 WAS NOT PROMOTED BECAUSE OF HER INTERVIEWS, HER LACK OF PRIOR EXPERIENCE
 AND FORMAL EDUCATION, AND A JUDGMENT, BASED ON INCIDENTS NOT CONNECTED
 WITH GRIEVANCES OR GRIEVANCE MEETINGS, THAT LA FOLLETTE COULD NOT HANDLE
 "PRESSURE SITUATIONS" WITH THE PUBLIC, WHICH WAS A REQUIREMENT OF THE
 POSITION.
 
    THE RECORD REVEALS THAT EMPLOYEE CAROL LA FOLLETTE PARTICIPATED IN A
 GRIEVANCE MEETING IN MAY 1978, DURING WHICH SHE BECAME FRUSTRATED AND
 UPSET AND CONCLUDED THE MEETING BY TELLING BOTH THE PARTICIPATING
 MANAGEMENT AND UNION OFFICIALS TO "TAKE THEIR JOB AND GRIEVANCE AND
 SHOVE IT." THE INCIDENT BECAME COMMON KNOWLEDGE AMONG THE EMPLOYEES AND
 SUPERVISORS THROUGHOUT THE OFFICE.  THEREAFTER, LA FOLLETTE APPLIED FOR
 THE POSITION OF REVENUE REPRESENTATIVE (TAX EXAMINER), AND WAS RANKED ON
 THE BEST-QUALIFIED LIST FOR THREE VACANCIES.
 
    RESPONDENT DID NOT SELECT LA FOLLETTE, ASSERTING THAT HER INABILITY
 TO CONTROL HER TEMPER LED TO SERIOUS DOUBTS CONCERNING HER ABILITY TO
 DEAL ADEQUATELY WITH TAXPAYERS, AN INHERENT FEATURE OF THE WORK OF A
 REVENUE REPRESENTATIVE.  THE RESPONDENT CITED THREE INCIDENTS TO
 INDICATE LAFOLLETTE'S ADVERSE REACTION UNDER STRESS:  (1) A DISAGREEMENT
 WITH A FELLOW CLERK;  (2) A COUNSELING SESSION WITH A SUPERVISOR;  AND,
 (3) AN EXTREMELY AGITATED INTERVIEW.  THE RESPONDENT ALSO ASSERTED THAT
 LAFOLLETTE'S ANSWERS TO QUESTIONS POSED DURING INTERVIEWS FOR TWO OF THE
 VACANCIES WERE SUBSTANTIVELY "SHALLOW," AND THAT LAFOLLETTE'S NOTICEABLE
 AND ADMITTED LACK OF SELF CONFIDENCE PERMEATED THE INTERVIEW SESSIONS.
 THE RESPONDENT ADDS THAT LAFOLLETTE'S PRIOR EXPERIENCE, EDUCATIONAL
 BACKGROUND, AND TEST SCORES AS COMPARED TO OTHER CANDIDATES ALSO
 CONTRIBUTED TO THE DECISION NOT TO SELECT HER.  THE RESPONDENT DENIED
 THAT THE INCIDENT OCCURRING AT THE MAY 1978, GRIEVANCE MEETING WAS
 CONSIDERED IN THE DECISION NOT TO SELECT LA FOLLETTE FOR ONE OF THE
 POSITIONS BEING FILLED.
 
    IN REACHING HIS CONCLUSIONS HEREIN, THE JUDGE FOUND THAT RESPONDENT
 HAD TAKEN LAFOLLETTE'S "PAST PROBLEMS AND DISPOSITION" AND "PAST
 HISTORY" INTO CONSIDERATION WHEN IT REFUSED TO SELECT HER FOR ONE OF THE
 VACANCIES FOR WHICH SHE HAD APPLIED.  THE JUDGE FURTHER FOUND THAT THIS
 CONSIDERATION HAD "NO DOUBT INCLUDED HER IMPULSIVE BEHAVIOR AT THE MAY
 1978, GRIEVANCE MEETING. . . . " ADDITIONALLY, THE JUDGE FOUND
 LAFOLLETTE'S BEHAVIOR AT THE MAY 1978, GRIEVANCE MEETING TO BE WITHIN
 THE AMBIT OF PROTECTED ACTIVITY, CITING VETERANS ADMINISTRATION REGIONAL
 OFFICE, DENVER, COLORADO, 2 FLRA NO. 84 (1980).  BASED ON THESE
 FINDINGS, THE JUDGE CONCLUDED THAT WHERE, AS HERE, A LEGITIMATE BASIS
 FOR MANAGEMENT ACTION EXISTS BUT UNION CONSIDERATIONS ARE ALSO SHOWN TO
 HAVE PLAYED A PART, AN UNFAIR LABOR PRACTICE WILL BE FOUND, CITING THE
 AUTHORITY'S DECISION UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY,
 HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 2 FLRA NO. 118(1980).
 
    THIS CASE IS ONE OF FIRST IMPRESSION UNDER THE STATUTE IN THAT IT,
 FOR THE FIRST TIME, AFFORDS THE AUTHORITY AN OPPORTUNITY TO ADDRESS THE
 QUESTION OF WHAT TEST SHOULD BE APPLIED UNDER THE STATUTE IN SITUATIONS
 WHERE CONSIDERATIONS OF AN EMPLOYEE'S PARTICIPATION IN ACTIVITIES
 PROTECTED BY THE STATUTE PLAYED A PART IN A MANAGEMENT DECISION
 ADVERSELY AFFECTING THAT EMPLOYEE.  FOR THE REASONS WHICH FOLLOW, WE
 REJECT THE TEST APPLIED BY THE JUDGE AND DISAGREE WITH HIS CONCLUSIONS
 AND RECOMMENDATIONS TO THE EXTENT REFLECTED HEREIN.
 
    SECTION 7101(B) OF THE STATUTE PROVIDES:
 
    IT IS THE PURPOSE OF THIS CHAPTER TO PRESCRIBE CERTAIN RIGHTS AND
 OBLIGATIONS OF THE
 
    EMPLOYEES OF THE FEDERAL GOVERNMENT AND TO ESTABLISH PROCEDURES WHICH
 ARE DESIGNED TO MEET THE
 
    SPECIAL REQUIREMENTS AND NEEDS OF THE GOVERNMENT.  THE PROVISIONS OF
 THIS CHAPTER SHOULD BE
 
    INTERPRETED IN A MANNER CONSISTENT WITH THE REQUIREMENT OF AN
 EFFECTIVE AND EFFICIENT
 
    GOVERNMENT.
 
    SECTION 7102 OF THE STATUTE PROVIDES THAT "(E)ACH EMPLOYEE SHALL HAVE
 THE RIGHT TO FORM, JOIN, OR ASSIST ANY LABOR ORGANIZATION, OR TO REFRAIN
 FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR REPRISAL,
 AND EACH EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT."
 
    SECTION 7116(A)(1) AND (2) PROVIDES:
 
    "(I)T SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY-- (1) TO
 INTERFERE WITH, RESTRAIN, OR
 
    COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT
 UNDER THIS CHAPTER;  (2) TO
 
    ENCOURAGE OR DISCOURAGE MEMBERSHIP IN ANY LABOR ORGANIZATION BY
 DISCRIMINATION IN CONNECTION
 
    WITH HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
 (.)"
 
    SECTION 7118(A)(7) AND (8) OF THE STATUTE PROVIDES THAT THE AUTHORITY
 WILL RESOLVE COMPLAINTS OF UNFAIR LABOR PRACTICES, AND EITHER ISSUE AN
 APPROPRIATE REMEDIAL ORDER OR DISMISS THE COMPLAINT ON THE BASIS OF
 WHETHER OR NOT THE PREPONDERANCE OF THE EVIDENCE ESTABLISHES THAT THE
 RESPONDENT HAS ENGAGED, OR IS ENGAGING IN, UNFAIR LABOR PRACTICES.
 
    IN DISCHARGING THIS RESPONSIBILITY IMPOSED BY THE STATUTE, THE
 AUTHORITY SEEKS TO PROTECT RIGHTS ASSURED BY THE STATUTE WITHOUT
 PRODUCING CONSEQUENCES INCONSISTENT WITH THE STATED PURPOSE OF THE
 STATUTE.  IN THIS REGARD, THE AUTHORITY NOTES THAT A RULE WHICH FOCUSES
 SOLELY ON WHETHER PROTECTED CONDUCT PLAYED A PART IN A MANAGEMENT
 DECISION FAILS TO CONSIDER "THE SPECIAL REQUIREMENTS AND NEEDS OF THE
 GOVERNMENT" INCLUDING "THE REQUIREMENT OF AN EFFECTIVE AND EFFICIENT
 GOVERNMENT." THE DIFFICULTY WITH THE TEST APPLIED BY THE JUDGE IN THIS
 CASE IS THAT IT WOULD REQUIRE PROMOTION OF AN EMPLOYEE IN CIRCUMSTANCES
 WHERE UNION CONSIDERATIONS PLAYED A PART IN THE ORIGINAL PROMOTION
 DECISION-- EVEN IF THE SAME DECISION WOULD HAVE BEEN REACHED APART FROM
 UNION CONSIDERATIONS.  AN AGENCY SHOULD BE GIVEN AN OPPORTUNITY TO
 ATTEMPT TO PROVE THAT, APART FROM ANY CONSIDERATION OF PROTECTED
 ACTIVITIES, AN EMPLOYEE WOULD NOT HAVE BEEN PROMOTED IN ANY EVENT.
 
    IN SUCH CIRCUMSTANCES THE AUTHORITY FINDS THAT THE BURDEN IS ON THE
 GENERAL COUNSEL TO MAKE A PRIMA FACIE SHOWING THAT THE EMPLOYEE HAD
 ENGAGED IN PROTECTED ACTIVITY AND THAT THIS CONDUCT WAS A MOTIVATING
 FACTOR IN AGENCY MANAGEMENT'S DECISION NOT TO PROMOTE.  ONCE THIS IS
 ESTABLISHED, THE AGENCY MUST SHOW BY A PREPONDERANCE OF THE EVIDENCE
 THAT IT WOULD HAVE REACHED THE SAME DECISION AS TO THE PROMOTION EVEN IN
 THE ABSENCE OF THE PROTECTED CONDUCT.  /1/
 
    IN THE AUTHORITY'S VIEW, THE APPLICATION OF SUCH A TEST WILL SERVE TO
 BALANCE THE LEGITIMATE INTERESTS AND PURPOSES OF GOVERNMENT WITH THOSE
 RIGHTS ASSURED TO EMPLOYEES AND THEIR REPRESENTATIVES UNDER THE STATUTE.
  SUCH A TEST SERVES THE PURPOSES OF THE STATUTE BY MAKING IT POSSIBLE TO
 MORE THOROUGHLY ANALYZE THE RELATIONSHIP BETWEEN THE AGENCY ACTION AND
 THE PROTECTED CONDUCT OF AN EMPLOYEE.  UNDER THIS TEST, THEREFORE, BOTH
 THE GENERAL COUNSEL AND THE AGENCY WILL HAVE AN OPPORTUNITY TO ADDUCE
 EVIDENCE AS TO THE MOTIVATING FACTORS INVOLVED IN THE ACTION OR DECISION
 OF THE AGENCY WHICH IS THE BASIS OF THE COMPLAINT.  IF IT IS ESTABLISHED
 BY A PREPONDERANCE OF THE EVIDENCE THAT THE SAME ACTION OR DECISION OF
 THE AGENCY WOULD HAVE TAKEN PLACE EVEN IN THE ABSENCE OF THE PROTECTED
 ACTIVITY, A COMPLAINT OF VIOLATION OF SECTION 7116(A)(1) AND (2) OF THE
 STATUTE WILL NOT BE SUSTAINED.  CONVERSELY, IF IT IS NOT ESTABLISHED BY
 A PREPONDERANCE OF THE EVIDENCE THAT THE ACTION OR DECISION WOULD HAVE
 TAKEN PLACE IN ANY EVENT, THE AUTHORITY WILL FIND A VIOLATION UNDER
 SECTION 7116(A)(1) AND (2) OF THE STATUTE.
 
    IN APPLYING THE TEST DESCRIBED ABOVE TO THE INSTANT CASE, THE
 AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT LA FOLLETTE WAS
 ENGAGED IN PROTECTED ACTIVITY DURING THE MAY 25, 1978, GRIEVANCE MEETING
 AND THAT RESPONDENT'S REFUSAL TO PROMOTE HER TO A REVENUE REPRESENTATIVE
 POSITION WAS BASED, AT LEAST IN PART, ON UNION CONSIDERATIONS.  THE
 AUTHORITY FURTHER CONCLUDES THAT THE RESPONDENT ESTABLISHED BY A
 PREPONDERANCE OF EVIDENCE ADDUCED AT THE HEARING, THAT LA FOLLETTE WOULD
 NOT HAVE BEEN SELECTED FOR PROMOTION TO THE POSITION OF REVENUE
 REPRESENTATIVE EVEN IF LA FOLLETTE HAD NOT ENGAGED IN PROTECTED
 ACTIVITY.  IN THIS REGARD.  RESPONDENT CONTENDED THAT LA FOLLETTE WAS
 NOT SELECTED DUE TO, AMONG OTHER REASONS, HER HANDLING OF STRESS
 SITUATIONS AND HER DOUBTED ABILITY TO CONTROL HERSELF EMOTIONALLY.  THE
 RECORD ESTABLISHES SEVERAL INSTANCES, OTHER THAN THE GRIEVANCE MEETING
 INCIDENT, WHEREIN LA FOLLETTE HAD EMOTIONAL CONFRONTATIONS WITH HER
 FELLOW EMPLOYEES AND SUPERVISORS.  AS RECOGNIZED BY THE JUDGE (AT P. 6
 OF HIS DECISION), "THE RECORD REVEALED AN EMOTIONAL AND AGITATED
 INDIVIDUAL WHO CANDIDLY ADMITTED DIFFICULTY WITH FELLOW EMPLOYEES AND
 WITH SUPERVISORS." ADDITIONALLY, IN APPLYING THE TEST, THE AUTHORITY
 NOTES THAT THE SELECTING OFFICIAL FOR TWO OF THE VACANT POSITIONS
 TESTIFIED THAT UPON CONSIDERATION OF PRIOR EXPERIENCE, EDUCATIONAL
 BACKGROUND, TEST SCORES, AND PARTICULARLY HIS INTERVIEWS OF THE
 APPLICANTS, HE CONSIDERED THREE OTHER CANDIDATES BETTER QUALIFIED FOR
 THE POSITION THAN LA FOLLETTE.
 
    THEREFORE, APPLYING THE PROPER TEST TO THE CIRCUMSTANCES OF THIS
 CASE, AND BASED ON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 FINDINGS DISCUSSED ABOVE, THE AUTHORITY CONCLUDES THAT THE AGENCY HAS
 ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT LA FOLLETTE WOULD
 NOT HAVE BEEN SELECTED FOR ANY OF THE REVENUE REPRESENTATIVE POSITIONS
 EVEN IF SHE HAD NOT ENGAGED IN ANY PROTECTED ACTIVITY.  ACCORDINGLY, THE
 COMPLAINT WILL BE DISMISSED IN ITS ENTIRETY.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-230 BE, AND
 IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., JUNE 17, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
  
    
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
 RUDOLPH L. JANSEN, ESQUIRE
 
                              FOR RESPONDENT
 
    SHEILA REILLY, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    MR. RONALD F. HICKS
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  ELI NASH, JR.
 
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. SECTION 7101, ET SEQ., AS A RESULT OF AN
 UNFAIR LABOR PRACTICE CHARGE FILED ON SEPTEMBER 21, 1979 AND AMENDED ON
 NOVEMBER 8, 1979.  COMPLAINT AND NOTICE OF HEARING ISSUED ON NOVEMBER
 13, 1979 ALLEGING IN SUBSTANCE THAT THE INTERNAL REVENUE SERVICE,
 WASHINGTON, D.C. HEREINAFTER CALLED "RESPONDENT" HAD VIOLATED 5 U.S.C.
 7116(A)(1) AND (2) BY RESTRAINING ITS EMPLOYEES IN THE EXERCISE OF
 RIGHTS GUARANTEED IN 5 U.S.C. 7102 AND DISCOURAGED MEMBERSHIP IN
 NATIONAL TREASURY EMPLOYEES UNION, HEREINAFTER CALLED THE "UNION" BY
 FAILING TO PROMOTE EMPLOYEE CAROL LA FOLLETTE ON SEVERAL OCCASIONS TO
 THE POSITION OF TAX EXAMINER (REVENUE REPRESENTATIVE).  RESPONDENT'S
 ANSWER DENIED THE ALLEGATIONS OF THE COMPLAINT.
 
    A HEARING WAS HELD IN THIS MATTER IN INDIANAPOLIS, INDIANA ON JANUARY
 16, 1980.  ALL PARTIES WERE REPRESENTED BY COUNSEL AND AFFORDED FULL
 OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE AND CROSS
 EXAMINE WITNESSES, AND TO FILE POST HEARING BRIEFS.
 
    BASED UPON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE UNION WAS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE OF RESPONDENT'S EMPLOYEES AT ITS DISTRICT OFFICE IN
 INDIANAPOLIS, INDIANA.
 
    ABOUT MAY 25, 1978, CAROL LA FOLLETTE, A GRIEVANT, AND HER UNION
 REPRESENTATIVE, GENE FRIEDMAN, LOCAL UNION PRESIDENT, MET WITH CHARLES
 L. KURASZ, CHIEF, COLLECTION DIVISION OF THE INDIANAPOLIS DISTRICT AND
 OTHER MANAGEMENT OFFICIALS TO DISCUSS LA FOLLETTE'S IS THIRD STEP
 GRIEVANCE, AS REQUIRED BY THE TERMS OF THE COLLECTIVE BARGAINING
 AGREEMENT.  AS MR.  FRIEDMAN WAS PRESENTING THE GRIEVANCE AND MR. KURASZ
 WAS COMMENTING ON THE PRESENTATION AND DEFENDING MANAGEMENT'S POSITION,
 LA FOLLETTE BECAME FRUSTRATED AND UPSET AT WHAT SHE APPARENTLY PERCEIVED
 TO BE MERELY A DISCUSSION OF GENERALITIES, JUMPED UP, THREW HER PAPERS
 AND PENCIL DOWN ON THE TABLE AND IN AN ANGRY AND LOUD VOICE STATED THAT
 SHE DID NOT FEEL THAT SHE COULD GET A FAIR HEARING OR FAIR TREATMENT AND
 TOLD EACH OF THE PARTICIPANTS TO "TAKE THEIR JOB AND GRIEVANCE AND SHOVE
 IT." SHE THEN WALKED OUT THE DOOR AND DID NOT RETURN TO THE MEETING.
 SHORTLY THEREAFTER, LA FOLLETTE APOLOGIZED TO KURASZ FOR HER ACTIONS.
 LA FOLLETTE DROPPED HER UNION MEMBERSHIP FROM MAY 1978 UNTIL MARCH 1979.
 
    THERE IS NO DISPUTE THAT THE OCCURRENCE AT THIS MEETING WAS COMMON
 KNOWLEDGE AMONG EMPLOYEES AND SUPERVISORS OF THE DISTRICT OFFICE.
 SUPERVISORS DAVID LARSON AND LAWRENCE MARTIN TESTIFIED THAT THEY WERE
 AWARE OF THE INCIDENT, THOUGH NOT PRESENT AT THE GRIEVANCE MEETING.  LA
 FOLLETTE TESTIFIED THAT HER SUPERVISOR MR. BLIGHTON TOLD HER DURING
 1978, "I HEARD HOW YOU TOLD THEM TO STICK IT IN THEIR EAR." FRIEDMAN
 TESTIFIED THAT MR. BLIGHTON ALSO MENTIONED THE INCIDENT TO HIM.  MR.
 KURASZ, IN A LATER GRIEVANCE MEETING TOLD FRIEDMAN THAT HE WAS NOT
 VINDICTIVE ABOUT THE INCIDENT.
 
    AT THE TIME OF THIS INCIDENT LA FOLLETTE WAS A GS-4 GROUP CLERK IN
 THE COLLECTION DIVISION.  SUBSEQUENT TO MAY 1978 LA FOLLETTE APPLIED FOR
 FOUR SEPARATE POSITIONS INCLUDING THAT OF TAX EXAMINER (REVENUE
 REPRESENTATIVE), ON THREE SEPARATE OCCASIONS.  SHE WAS RANKED ON THE
 BEST-QUALIFIED LIST FOR THREE REVENUE REPRESENTATIVE OPENINGS IN MAY,
 JUNE AND AUGUST 1979, RESPECTIVELY, BY A RANKING PANEL, WHICH TOOK INTO
 ACCOUNT EMPLOYEE EVALUATIONS, WORK EXPERIENCE, EDUCATION, TRAINING,
 AWARDS AND OTHER FACTORS.  ALSO, SHE WAS PLACED ON THE BEST QUALIFIED
 LIST FOR A CLERK TYPIST POSITION IN FEBRUARY 1979.  MS. LA FOLLETTE ALSO
 PASSED RESPONDENT'S "MEET AND DEAL" INTERVIEW FOR THE POSITION.
 ACCORDING TO RESPONDENT, THIS INTERVIEW IS STANDARD PROCEDURE FOR
 APPLICANTS FOR POSITIONS WITHIN THE INTERNAL REVENUE SERVICE WHICH
 REQUIRE MEETING WITH THE PUBLIC.
 
    IN MAY 1979 TWO VACANCIES FOR WHICH LA FOLLETTE APPLIED WERE FILLED
 BY ANOTHER EMPLOYEE OF THE COLLECTION DIVISION, AND AN APPLICANT FROM
 OUTSIDE THE INDIANAPOLIS DISTRICT, WHO HAD A RANKING SCORE LESS THAN
 LAFOLLETTE'S.  IN JUNE 1979, THREE VACANCIES FOR THE POSITION OF REVENUE
 REPRESENTATIVE WERE ADVERTISED AND THE THREE APPLICANTS SELECTED WERE
 FROM OUTSIDE THE COLLECTION DIVISION AND TWO WITH LOWER SCORES THAN LA
 FOLLETTE WERE SELECTED.  FOR THE AUGUST 1979 POSITION, ALTHOUGH TWO
 VACANCIES WERE ADVERTISED ONLY ONE WAS FILLED, BY AN EMPLOYEE FROM
 OUTSIDE THE COLLECTION DIVISION, AND THE OTHER VACANCY WAS READVERTISED
 AT A SUPERVISORY LEVEL, BECAUSE THE SUPERVISOR MR. MARTIN TESTIFIED
 THERE WAS A GREATER NEED TO FILL THE POSITION AT A SUPERVISORY LEVEL
 BECAUSE OF A POSSIBLE FREEZE.
 
    BEFORE FILING THE GRIEVANCE WHICH WAS THE SUBJECT OF THE MAY 1978
 MEETING, LA FOLLETTE HAD BEEN PROMOTED FROM A GS-3 TO GS-4 BY
 RESPONDENT.  SINCE THE GRIEVANCE MEETING LA FOLLETTE HAS NOT BEEN
 PROMOTED BECAUSE ALLEGEDLY SHE COULD NOT CONTROL HER TEMPER, CREATING
 ACCORDING TO RESPONDENT, SERIOUS CONCERNS ABOUT HER MEETING TAX PAYERS,
 AN INHERENT PART OF THE WORK OF A REVENUE REPRESENTATIVE.  THE RECORD
 REVEALED THAT MS. LA FOLLETTE HAD CONSIDERABLE EXPERIENCE IN MEETING AND
 DEALING WITH TAX PAYERS.  IN THIS REGARD, DURING 1979, SHE WORKED AS A
 RECEPTIONIST/TAX EXAMINER, WHERE HER DUTIES INVOLVED, AMONG OTHER
 THINGS, GREETING TAX PAYERS WHO CAME IN TO PAY DELINQUENT TAX BILLS,
 RETRIEVING INFORMATION ON THEIR ACCOUNTS, BRINGING THEIR ACCOUNTS UP TO
 DATE, DETERMINING THE ACCRUALS OF PENALTIES ON ACCOUNTS, AND SITTING
 DOWN WITH THE TAX PAYER TO ESTABLISH A PAYMENT PLAN.  RESPONDENT'S
 WITNESSES TESTIFIED THAT CLERICAL DUTIES DIFFER WIDELY FROM THE DUTIES
 OF A REVENUE REPRESENTATIVE.  THERE IS NO RECORD EVIDENCE OF ANY
 EMOTIONAL OUTBURSTS WHEN LA FOLLETTE DEALT WITH TAX PAYERS OR THAT SHE
 DEALT WITH TAX PAYERS IN OTHER THAN A LEVEL HEADED MANNER.  FURTHER, HER
 APPRAISAL FOR THE AUGUST 1979 REVENUE REPRESENTATIVE POSITION
 ANNOUNCEMENT COVERING THIS TIME PERIOD, WAS EXCELLENT.
 
    AN EARLIER APPRAISAL COVERING THE PERIOD MAY 1978 TO MARCH 1979
 INDICATED THAT ALTHOUGH LA FOLLETTE HAD DIFFICULTY IN BEING SENSITIVE TO
 OTHERS IN STRESS SITUATIONS IN THE PAST, THERE WAS IMPROVEMENT AND THERE
 HAD BEEN NO RECURRENCE IN SIMILAR STRESS SITUATIONS.  AMONG THE
 INCIDENTS CITED BY RESPONDENT TO ESTABLISH DIFFICULTY IN STRESS
 SITUATIONS WITNESSES TESTIFIED THAT LA FOLLETTE HAD A DISAGREEMENT WITH
 ANOTHER GROUP CLERK AND HAD BECOME EMOTIONALLY UPSET;  SHE HAD BEEN
 COUNSELLED BY SUPERVISOR MARTIN FOR GREETING A TAX PAYER IN STOCKING
 FEET AND THAT SHE HAD TOLD HIM THAT "(H)E WAS OUT TO GET HER";  AND,
 DURING AN INTERVIEW CONDUCTED BY, SUPERVISOR DAVID LARSON, SHE HAD
 BECOME "VERY, VERY AGITATED" AND "STARTED TO LOSE CONTROL."
 
    THE SELECTING OFFICIAL FOR THE FIRST TWO VACANCIES WAS SUPERVISOR
 DAVID LARSON, SUPERVISOR MARTIN ASSISTED WITH THE INTERVIEWS.
 CONCERNING THE INTERVIEW FOR THE JUNE 1979 POSITION, MR. LARSON
 TESTIFIED THAT LAFOLLETTE'S ANSWERS WERE "SHALLOW" AND THAT SHE ADMITTED
 A LACK OF SELF CONFIDENCE IN HER ABILITY TO HANDLE PRESSURE SITUATIONS.
 ACCORDING TO LARSON, ALTHOUGH THE PERFORMANCE APPRAISAL PREVIOUSLY
 PREPARED BY LAFOLLETTE'S MANAGER INDICATED SHE WAS ABLE TO COPE WITH
 STRESS, HER PERFORMANCE AT THE INTERVIEWS INDICATED OTHERWISE.  IN
 ADDITION, MR. LARSON REFERRED TO HER LACK OF PRIDE IN THE WORK SHE WAS
 DOING AND OTHER RESPONSES WHICH DEMONSTRATED TO HIM THAT OTHER
 CANDIDATES HAD BETTER POTENTIAL FOR THE REVENUE REPRESENTATIVE POSITION.
  MR. LARSON TESTIFIED THAT TAKING INTO CONSIDERATION PRIOR EXPERIENCE,
 EDUCATIONAL BACKGROUND, TEST SCORES, AND PARTICULARLY TAKING INTO
 CONSIDERATION THE INTERVIEWS, HE CONSIDERED THREE OTHER CANDIDATES
 BETTER QUALIFIED FOR THE POSITION THAN LA FOLLETTE.  MR. LARSON, WHO IS
 A UNION MEMBER, TESTIFIED THAT HE DID NOT INQUIRE INTO LAFOLLETTE'S
 UNION ACTIVITIES AND DID NOT CONSIDER THE MAY 1978 GRIEVANCE MEETING IN
 MAKING HIS SELECTION.
 
    SUPERVISOR LARRY MARTIN, WHO WAS THE SELECTING OFFICIAL FOR SEVERAL
 POSITIONS APPLIED FOR BY LA FOLLETTE, TESTIFIED THAT HE WAS TOLD AROUND
 MAY 1978 OF LA FOLLETTE ACTIVITY DURING THE GRIEVANCE MEETING WITH MR.
 KURASZ.  LA FOLLETTE TESTIFIED THAT MR. MARTIN TOLD HER, AFTER HE HAD
 BEEN SELECTED CHIEF OF THE DIVISION, THAT SHE "WOULD SOON FIND OUT THAT
 THERE (WERE) WAYS OF TELLING PEOPLE THINGS THAT (SHE) WANTED THEM TO
 KNOW ABOUT WITHOUT RECEIVING REPRISALS FROM THEM." MARTIN TESTIFIED THAT
 HE HAD A CONVERSATION WITH LA FOLLETTE IN WHICH IT WAS ACKNOWLEDGED
 THAT, "YOU CANNOT GET ANYWHERE IF YOU SLAM THE DOOR ON THE CHIEF OF
 COLLECTIONS." DURING THE INTERVIEW FOR THE AUGUST 1979 POSTING, LA
 FOLLETTE TESTIFIED THAT MARTIN MENTIONED THAT IF HE HAD NOT KNOWN HER
 AND HER PAST HISTORY OF BECOMING UPSET DURING STRESS SITUATIONS THAT HE
 WOULD ONLY GO ON THE INTERVIEWS AND HER EVALUATION;  BUT SINCE HE KNEW
 HER, HE WAS ALSO TAKING HER PAST HISTORY INTO CONSIDERATION.
 
    UNION STEWARD FRIEDMAN TESTIFIED THAT HE WAS TOLD BY MARTIN ON AUGUST
 23, 1979, THAT HE KNEW THAT THE UNION HAD QUITE A FEW GRIEVANCES WITH LA
 FOLLETTE AND HE HAD JUST INTERVIEWED HER FOR THE REVENUE REPRESENTATIVE
 POSITION AGAIN.  MARTIN ADDED THAT THE INTERVIEW WAS "ONE OF THE FINEST
 INTERVIEWS HE HAD EVER HAD." ACCORDING TO FRIEDMAN, MARTIN ALSO STATED
 THAT EXCEPT FOR "HER PAST PROBLEMS AND HER DISPOSITION" HE WOULD HAVE
 SELECTED HER FOR THE REVENUE REPRESENTATIVE POSITION.  FRIEDMAN WAS, OF
 COURSE, AWARE OF THE GRIEVANCE MEETING INCIDENT AND HE WAS ALSO AWARE OF
 THE INCIDENT INVOLVING A DISAGREEMENT BETWEEN LA FOLLETTE AND ANOTHER
 GROUP CLERK.  MARTIN TESTIFIED THAT DURING THIS CONVERSATION HE TOLD
 FRIEDMAN THAT THE INTERVIEW WITH LA FOLLETTE, WHO HAD BEEN INTERVIEWED
 BY HIM ON TWO OTHER OCCASIONS, HAD BEEN ONE OF HER BEST INTERVIEWS.  HE
 ALSO TESTIFIED THAT HE TOLD FRIEDMAN THAT HE HAD RESERVATIONS ABOUT HER
 ABILITY TO HANDLE HERSELF IN PRESSURE SITUATIONS WITH MEMBERS OF THE
 PUBLIC.  MARTIN CITED SEVERAL INCIDENTS INVOLVING LAFOLLETTE'S PROBLEMS
 WITH MANAGEMENT AND OFFICE PERSONNEL.  MARTIN DENIED THAT UNION
 MEMBERSHIP WAS EVER A CONSIDERATION IN HIS APPRAISAL OF MS. LA FOLLETTE.
  HE ALSO TESTIFIED THAT HE WAS A UNION MEMBER.
 
    ON AUGUST 23, 1979, LA FOLLETTE HAD TWO SEPARATE CONVERSATIONS WITH
 THE ACTING CHIEF OF REVENUE REPRESENTATIVE SECTION A, NANCY DURHAM WHO
 HAD ASSISTED MR. MARTIN IN THE INTERVIEWS FOR THE POSITION.  DURING THE
 FIRST CONVERSATION MS. DURHAM INFORMED LA FOLLETTE THAT THEY HAD
 INTERVIEWED SOMEONE WHO REALLY HAD A FANTASTIC INTERVIEW AND THEY WERE
 GOING TO SELECT THIS APPLICANT.  MARTIN'S TESTIMONY CONFIRMED THAT ONE
 APPLICANT WAS HEAD AND SHOULDERS ABOVE THE OTHERS.  UPON LEARNING THAT
 THE APPLICANT DID NOT ACCEPT THE JOB, LA FOLLETTE RETURNED TO MS.
 DURHAM'S OFFICE, AGAIN ASKING IF SHE HAD A CHANCE.  AT THAT TIME, MS.
 DURHAM TOLD HER THAT "THE WAY SHE UNDERSTOOD IT AS TO WHY I WAS NOT
 BEING SELECTED, WAS BECAUSE THEY-- WANTED ME TO BE ABLE TO HANDLE
 PROBLEMS ON MY OWN WITHOUT INTERFERENCE FROM THE UNION." MS. DURHAM
 DENIED MAKING ANY COMMENTS ABOUT LAFOLLETTE'S UNION ACTIVITIES.  SHE
 TESTIFIED THAT SHE TOLD LA FOLLETTE THAT IN HER OPINION, LA FOLLETTE WAS
 NOT SELECTED BECAUSE SHE WAS NOT READY TO MEET AND DEAL WITH TAX PAYERS,
 AND/OR THEIR REPRESENTATIVES SINCE THEY OFTEN BECAME ABUSIVE OR USED
 DEROGATORY LANGUAGE AND THAT SHE DID NOT THINK THAT LA FOLLETTE WAS
 QUITE READY FOR THAT.  MS. DURHAM EXPRESSED THAT SHE WAS NOT THE
 SELECTING OFFICIAL AND THAT ANYTHING THAT SHE SAID WAS BETWEEN THE TWO
 OF THEM.  MS. DURHAM LATER TESTIFIED THAT SHE HAD BEEN WARNED PRIOR TO
 ASSUMING HER POSITION AS ACTING MANAGER "TO WATCH YOUR GROUP CLERK" AND
 THAT SHE HAD HEARD OTHER INDIVIDUALS IN THE SECTION MENTION "THAT SHE
 HAD FILED GRIEVANCES."
 
    SOMETIME DURING SEPTEMBER 1978, WILLIAM MCCLOSKEY, A SELECTING
 OFFICIAL FOR A TAX EXAMINER POSITION FOR WHICH LA FOLLETTE DID NOT MAKE
 THE BEST QUALIFIED LIST TOLD HER THAT SHE DID NOT GET THE POSITION FOR
 WHICH HE WAS SELECTING OFFICIAL BECAUSE SHE "HAD STEPPED ON OTHERS'
 TOES." MCCLOSKEY DID NOT APPEAR AS A WITNESS.
 
                         DISCUSSION AND CONCLUSION
 
    CASE LAW IN THE PUBLIC SECTOR HAS ESTABLISHED THAT IN ORDER TO SHOW A
 VIOLATION BASED ON NON-SELECTION THE EVIDENCE MUST SHOW THAT AGENCY
 MANAGEMENT HAS DISCRIMINATORILY AFFECTED EMPLOYEE TERMS AND CONDITIONS
 OF EMPLOYMENT BASED ON UNION CONSIDERATIONS.  FURTHER, SUCH A VIOLATION
 WILL BE FOUND IN "MIXED MOTIVE" SITUATIONS, I.E., WHERE A LEGITIMATE
 BASIS FOR THE MANAGEMENT ACTION EXISTS, BUT WHERE UNION CONSIDERATIONS
 ALSO ARE SHOWN TO HAVE PLAYED A PART.  DEPARTMENT OF HEALTH, EDUCATION,
 AND WELFARE, SOCIAL SECURITY ADMINISTRATION, BUREAU OF HEARINGS AND
 APPEALS, REGION II, SAN JUAN, PUERTO RICO, 8 A/SLMR 1092, 1093, A/SLMR
 NO. 1127(1978);  U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
 MILWAUKEE AREA OFFICE, MILWAUKEE, WISCONSIN, 7 A/SLMR 948, 949, A/SLMR
 NO. 925(1977);  DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS
 AGENCY, HEADQUARTERS, DEFENSE LOGISTICS AGENCY, 2 FLRC NO. 118(1980).
 THUS, IT IS ONLY NECESSARY THAT IT BE ESTABLISHED THAT ONE OF THE
 REASONS FOR AGENCY MANAGEMENTS' REFUSAL TO SELECT LA FOLLETTE WAS BASED
 ON HER UNION OR PROTECTED ACTIVITY.
 
    THE THRESHOLD QUESTION IN THIS MATTER IS WHETHER OR NOT LA FOLLETTE
 WAS ENGAGED IN PROTECTED ACTIVITY AT THE TIME OF THE MAY 1978 GRIEVANCE
 MEETING.  THE AUTHORITY HAS SAID AT THAT THE GRIEVANCE PROCEDURE IS AN
 INTEGRAL AND FUNDAMENTAL PART OF A LABOR ORGANIZATION'S RIGHT TO
 EFFECTIVELY REPRESENT EMPLOYEES.  VETERANS' ADMINISTRATION REGIONAL
 OFFICE, DENVER, COLORADO, 2 FLRA 84(1980).  FURTHER, IT HAS STATED THAT
 AN EMPLOYEE'S RIGHT TO ENGAGE IN PROTECTED ACTIVITY PERMITS LEEWAY FOR
 IMPULSIVE BEHAVIOR, WHICH IS BALANCED AGAINST THE EMPLOYER'S RIGHT TO
 MAINTAIN ORDER AND RESPECT FOR ITS SUPERVISORY STAFF ON THE JOB SITE.
 DEPARTMENT OF THE NAVY, PUGET SOUND NAVAL SHIPYARD, BREMERTON,
 WASHINGTON, 2 FLRC 107(1980).  AND TO REMOVE THE CONDUCT FROM THE AMBIT
 OF PROTECTED ACTIVITY, THE EMPLOYEE MUST BE FOUND TO HAVE ENGAGED IN
 FLAGRANT MISCONDUCT.  DEPARTMENT OF THE NAVY, HEADQUARTERS, MILITARY
 TRAFFIC MANAGEMENT, 2 FLRC 72(1980).  WHILE THESE CASES INVOLVE
 MISCONDUCT ATTRIBUTED TO UNION REPRESENTATIVES SERVING IN VARIOUS
 CAPACITIES, IT IS MY VIEW THAT THE SAME PROTECTION EXTENDS TO EMPLOYEE
 PARTICIPANTS IN GRIEVANCE PROCEEDINGS.  PARTICULARLY WHERE SUCH
 MISCONDUCT IS ATTRIBUTED TO STATEMENTS MADE REGARDING THE EMPLOYEE'S OWN
 GRIEVANCE.  ALTHOUGH I DO NOT CONDONE LAFOLLETTE'S CONDUCT DURING THIS
 MEETING, SHE WAS ENGAGED IN NEITHER FLAGRANT MISCONDUCT NOR DID SHE USE
 ABUSIVE LANGUAGE WHICH WOULD DESTROY MANAGEMENT'S RIGHT TO MAINTAIN
 ORDER AND RESPECT WHICH WOULD REMOVE HER ACTIONS FROM PROTECTED STATUS.
 ACCORDINGLY, IT IS FOUND THAT LA FOLLETTE WAS ENGAGED IN PROTECTED
 ACTIVITY DURING THE MAY 25, 1978 GRIEVANCE MEETING AND THAT HER CONDUCT
 AT THE MEETING WAS NOT BEYOND THE AMBIT OF PROTECTED ACTIVITY.
 
    TURNING TO RESPONDENT'S CONTENTION THAT IT DID NOT SELECT LA FOLLETTE
 FOR PROMOTION BECAUSE OF HER HANDLING OF STRESS SITUATIONS AND HER
 DOUBTED ABILITY TO CONTROL HERSELF EMOTIONALLY.  THE RECORD REVEALED AN
 EMOTIONAL AND AGITATED INDIVIDUAL WHO CANDIDLY ADMITTED DIFFICULTY WITH
 FELLOW EMPLOYEES AND WITH SUPERVISORS.  HOWEVER, THESE INCIDENTS
 OCCURRED WHEN SHE WAS BEING COUNSELLED BY SUPERVISION, OR DURING
 INTERVIEWS AND DURING A SINGLE INSTANCE OF INTEMPERANCE WITH ANOTHER
 GROUP CLERK.  WHILE RESPONDENT MAINTAINED THAT IT WAS CONCERNED WITH HER
 ABILITY TO DEAL WITH TAXPAYERS OR THE PUBLIC THERE IS NOT A SINGLE
 INSTANCE CITED TO SHOW THAT SHE WOULD EXPERIENCE SUCH DIFFICULTY
 ALTHOUGH LA FOLLETTE HAD DEALT WITH THE PUBLIC OVER A CONSIDERABLE
 PERIOD OF TIME AND SHE HAD PASSED THE "MEET AND DEAL" INTERVIEW.
 CERTAINLY LA FOLLETTE ACTIONS IN BECOMING EMOTIONAL AND AGITATED WITH
 OTHERS IN THE OFFICE WOULD RAISE SOME CONCERN AS TO HER SUITABILITY FOR
 PROMOTION TO REVENUE REPRESENTATIVE BUT, RESPONDENT'S NONSELECTIONS OF
 AN EMPLOYEE CONSISTENTLY RATED ON ITS BEST QUALIFIED LIST WERE NOT BASED
 ON THESE ACTIONS ALONE.  I CREDIT UNION PRESIDENT FRIEDMAN'S ACCOUNT OF
 THE AUGUST 23, 1979 CHANCE MEETING WITH SUPERVISOR MARTIN IN WHICH HE
 WAS TOLD BY MARTIN THAT LA FOLLETTE WOULD HAVE BEEN SELECTED FOR THAT
 POSITION EXCEPT FOR "HER PAST PROBLEMS AND HER DISPOSITION." ALSO I
 CREDIT LAFOLLETTE'S TESTIMONY THAT MARTIN TOLD HER DURING THE AUGUST
 1979 INTERVIEW THAT HE WAS TAKING HER "PAST HISTORY INTO CONSIDERATION."
 LAFOLLETTE'S PAST PROBLEMS NO DOUBT INCLUDED HER IMPULSIVE BEHAVIOR AT
 THE MAY 1978 GRIEVANCE MEETING AND THIS INCIDENT WAS COMMON KNOWLEDGE
 AMONG THE EMPLOYEES AND SUPERVISORS AT THE OFFICE.  FURTHERMORE, LA
 FOLLETTE HAD SEEMINGLY BECOME MORE OF A PROBLEM SINCE SHE HAD FILED
 SEVERAL GRIEVANCES SINCE MAY 1978 WHICH PROBLEM WAS POINTED OUT TO HER
 BY SUPERVISOR DURHAM DURING ONE OF THEIR AUGUST 23, 1979 CONVERSATIONS.
 WHILE IT IS CLEAR FROM THE RECORD THAT LA FOLLETTE MIGHT NOT HAVE BEEN
 SELECTED FOR ANY OF THE REVENUE REPRESENTATIVE POSITIONS DURING 1979
 BECAUSE OF HER LACK OF FORMAL TRAINING AND THE DIFFICULTY IN RISING FROM
 A CLERICAL POSITION, IT IS EQUALLY CLEAR, THAT IN EVALUATING HER
 PROMOTION POTENTIAL, AT LEAST SUPERVISOR MARTIN, WHO WAS ON INTERVIEW
 PANELS FOR JOBS APPLIED FOR BY LA FOLLETTE DURING MAY AND JUNE 1979 AND
 WHO WAS THE SELECTING OFFICIAL FOR AN AUGUST 1979 POSITION, HAD TAKEN
 INTO ACCOUNT HER PAST HISTORY AND DISPOSITION AND SUCH AN APPRAISAL
 COULD NOT IGNORE HER ACTIONS AT THE MAY 1978 GRIEVANCE MEETING.
 THEREFORE, I AM CONSTRAINED TO FIND THAT ANY CONSIDERATION OF HER PAST
 HISTORY INCLUDED THE MAY 1978 PROTECTED ACTIVITY AND THAT RESPONDENT'S
 REFUSAL TO PROMOTE LA FOLLETTE TO A REVENUE REPRESENTATIVE POSITION, AS
 EARLY AS MAY 1979, /2/ WAS BASED AT LEAST, IN PART, ON UNION
 CONSIDERATIONS.  TO ALLOW AGENCY REPRESENTATIVES TO DENY PROMOTIONS
 BASED ON AN EMPLOYEES' FILING OF GRIEVANCES OR UPON CONSIDERATIONS OF AN
 EMPLOYEE DURING GRIEVANCE MEETINGS, WHERE SUCH ACTION DOES NOT
 CONSTITUTE FLAGRANT MISCONDUCT OR INSUBORDINATION, IN MY VIEW INTERFERES
 WITH EMPLOYEE'S RIGHTS GUARANTEED BY THE STATUTE.  ACCORDINGLY, IT IS
 FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) OF THE STATUTE
 BY ALLOWING ANY PART OF LAFOLLETTE'S PROTECTED ACTIVITY TO PLAY A ROLE
 IN ITS DETERMINATION OF HER FITNESS AND OR SELECTION FOR PROMOTION.
 
                              RECOMMENDATION
 
    HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
 VIOLATIVE OF SECTIONS 7116(A)(1) AND (2) OF THE STATUTE, BY VIRTUE OF
 ITS ACTIONS IN ALLOWING LAFOLLETTE'S ACTIVITIES AS A GRIEVANT TO PLAY A
 ROLE IN HER SELECTION FOR PROMOTION, IT IS RECOMMENDED THAT THE FEDERAL
 LABOR RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER DESIGNED TO
 EFFECTUATE THE POLICIES OF THE STATUTE.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO 5 U.S.C. 7118(A)(7) AND SECTION 2423.26 OF THE FINAL
 RULES AND REGULATIONS, 45 FED.REG. 3482, 3510(1980), IT IS HEREBY
 ORDERED THAT INTERNAL REVENUE SERVICE, WASHINGTON, D.C. SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING TO PROMOTE CAROL LA FOLLETTE OR ANY OTHER EMPLOYEES WHO
 HAVE UTILIZED THEIR
 
    RIGHTS UNDER THE STATUTE TO FILE AND PROCESS GRIEVANCES.
 
    (B) DISCOURAGING MEMBERSHIP IN THE NATIONAL TREASURY EMPLOYEES UNION,
 OR ANY OTHER LABOR
 
    ORGANIZATION, BY DISCRIMINATION IN RESPECT TO ANY TERM OR CONDITION
 OF EMPLOYMENT, BASED UPON
 
    CONSIDERATION OF UNION MEMBERSHIP OR ACTIVITY.
 
    (C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND PROVISIONS OF THE STATUTE:
 
    (A) OFFER EMPLOYMENT TO CAROL LA FOLLETTE, AS A TAX EXAMINER (REVENUE
 REPRESENTATIVE) GS-5,
 
    OR IF THAT JOB NO LONGER EXISTS, IN A SUBSTANTIALLY SIMILAR POSITION,
 WITHOUT PREJUDICE TO THE
 
    SENIORITY OR OTHER PRIVILEGES SHE WOULD HAVE ENJOYED BUT FOR THE
 DISCRIMINATION, AND MAKE HER
 
    WHOLE FOR ANY LOSS OF MONIES SHE MAY HAVE SUFFERED BY REASON OF THE
 FAILURE OF THE AGENCY TO
 
    PROMOTE HER ON MAY 4, 1979, LESS ANY AMOUNTS EARNED ELSEWHERE DURING
 THAT PERIOD.
 
    (C) POST AT ITS INDIANAPOLIS DISTRICT OFFICE, INDIANAPOLIS, INDIANA,
 COPIES OF THE ATTACHED
 
    NOTICE MARKED "APPENDIX." COPIES OF SAID NOTICE, TO BE FURNISHED BY
 THE REGIONAL DIRECTOR FOR
 
    REGION 5, AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL
 BE POSTED BY IT
 
    IMMEDIATELY UPON RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60
 CONSECUTIVE DAYS THEREAFTER,
 
    IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY
 
    POSTED.  REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES
 ARE NOT ALTERED, DEFACED,
 
    OR COVERED BY ANY OTHER MATERIAL.
 
    (D) NOTIFY THE REGIONAL DIRECTOR FOR REGION 5, IN WRITING, WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
 
                              ELI NASH, JR.
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATE:  APRIL 30, 1980
 
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER BY 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 REFUSE TO PROMOTE CAROL LA FOLLETTE, OR ANY OTHER
 EMPLOYEES WHO UTILIZE THEIR RIGHTS UNDER THE STATUTE TO FILE OR PROCESS
 GRIEVANCES.
 
    WE WILL NOT FAIL TO PROMOTE ANY EMPLOYEES WHO UTILIZE THEIR RIGHTS
 UNDER THE STATUTE TO FILE OR PROCESS GRIEVANCES.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL OFFER EMPLOYMENT TO CAROL LA FOLLETTE AS TAX EXAMINER
 (REVENUE REPRESENTATIVE) OR IF THAT JOB NO LONGER EXISTS TO A
 SUBSTANTIALLY SIMILAR POSITION, WITHOUT PREJUDICE TO SENIORITY OR OTHER
 PRIVILEGES SHE WOULD HAVE ENJOYED BUT FOR THE DISCRIMINATION, AND MAKE
 HER WHOLE FOR ANY LOSS OF MONIES SHE MAY HAVE SUFFERED BY OUR FAILURE TO
 PROMOTE HER ON AUGUST 23, 1979, LESS ANY AMOUNTS EARNED ELSEWHERE DURING
 THAT PERIOD.
 
                           (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:
 ROOM 1638, DIRKSEN FEDERAL BUILDING, 219 SOUTH DEARBORN STREET, CHICAGO,
 ILLINOIS 60604.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ CF. MT. HEALTHY CITY SCHOOL DISTRICT BOARD OF EDUCATION V.
 DOYLE, 429 U.S. 274(1977) (INVOLVING CONDUCT PROTECTED BY THE U.S.
 CONSTITUTION.
 
    /2/ AT THE HEARING RESPONDENT ARGUED THAT LA FOLLETTE ELECTED TO
 RAISE THE QUESTION OF HER JUNE 1979 NONSELECTION TO A REVENUE
 REPRESENTATIVE POSITION UNDER THE CONTRACTUAL GRIEVANCE PROCEDURE AND
 HAD THEREFORE FORECLOSED HER RIGHT TO LITIGATE THAT ACTION UNDER SECTION
 7116(D).  THE COMPLAINT IN THIS MATTER ALLEGED A CONTINUING COURSE OF
 DISCRIMINATION AGAINST LA FOLLETTE BEGINNING ABOUT FEBRUARY 1979.  IF
 THE ALLEGED UNFAIR LABOR PRACTICE INVOLVED ONLY THE JUNE 1979
 NONSELECTION, SECTION 7116(D) MIGHT INDEED BAR JURISDICTION.  HOWEVER,
 IN THIS PROCEEDING THE JUNE 1979 NONSELECTION CONSTITUTES ONLY A PART OF
 THE NONSELECTIONS WHICH IT IS ALLEGED SHOWS A PATTERN OF DISCRIMINATION
 AGAINST LA FOLLETTE AND THE ISSUE HEREIN IS WHETHER SUCH A PATTERN
 EXISTED AND NOT WHETHER THE PARTICULAR NONSELECTION WAS PROPER.
 ACCORDINGLY, I FIND RESPONDENT'S CONTENTION THAT JURISDICTION IS
 PRECLUDED BECAUSE THE JUNE 1979 NONSELECTION WAS GRIEVED TO BE WITHOUT
 ME