Veterans Administration, Medical and Regional Office Center, White River Junction, Vermont (Respondent) and American Federation of Government Employees, AFL-CIO, Local 2604 (Charging Party)



[ v06 p381 ]
06:0381(68)CA
The decision of the Authority follows:


 6 FLRA No. 68
 
 VETERANS ADMINISTRATION, MEDICAL AND REGIONAL
 OFFICE CENTER, WHITE RIVER JUNCTION, VERMONT
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2604
 Charging Party
 
                                            Case No. 1-CA-147
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED RECOMMENDED DECISION
 AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE UNFAIR
 LABOR PRACTICE COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED
 VIOLATIONS OF SECTION 7116(A)(1) AND SECTION 7116(A)(1) AND (2) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) BE
 DISMISSED IN ITS ENTIRETY.  THE GENERAL COUNSEL AND THE CHARGING PARTY
 FILED EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER, AND THE RESPONDENT
 FILED AN OPPOSITION TO SUCH EXCEPTIONS.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE 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, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  WITH REGARD TO THE
 ALLEGATION THAT EMPLOYEE BURRIS WAS TERMINATED BECAUSE OF HER CONTACT
 WITH THE UNION, THE AUTHORITY AGREES WITH THE JUDGE THAT EVEN IF
 RESPONDENT WAS IN SOME PART MOTIVATED BY UNION CONSIDERATION, "THE OTHER
 ASSIGNED REASONS WOULD ALONE HAVE LED TO THIS TERMINATION." SEE INTERNAL
 REVENUE SERVICES AND NATIONAL TREASURY EMPLOYEES UNION, 6 FLRA NO.
 23(1980).
 
                                   ORDER
 
    IT IS ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-147 BE, AND IT
 HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    JAMES KLEIN, ESQUIRE
 
                            FOR THE RESPONDENT
 
    RICHARD B. BLAZAR, ESQUIRE
 
    RICHARD D. ZAIGER, ESQUIRE
 
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  JOHN H. FENTON
 
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 1-CA-147
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON DECEMBER 13, 1979, BY THE
 REGIONAL DIRECTOR, REGION I, FEDERAL LABOR RELATIONS AUTHORITY.  THE
 COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (2) OF
 THE STATUTE BY REPEATEDLY TELLING EMPLOYEE JUDY BURRIS NOT TO GO TO THE
 UNION WITH HER EMPLOYMENT PROBLEMS BEFORE GOING TO HER SUPERVISOR, AND
 BY TERMINATING HER EMPLOYMENT ON AUGUST 24, 1979 BECAUSE OF HER CONTACT
 WITH, AND ACTIVITIES ON BEHALF OF, THE UNION.
 
    A HEARING WAS HELD ON MARCH 4, 1980 IN WHITE RIVER JUNCTION, VERMONT.
  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE
 WITNESSES AND TO INTRODUCE EVIDENCE.  BRIEFS WERE FILED.  UPON THE
 ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATION:
 
                             FINDINGS OF FACT
 
    1.  AT ALL RELEVANT TIMES, LOCAL 2604, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, HAS BEEN THE EXCLUSIVE BARGAINING
 REPRESENTATIVE OF CERTAIN EMPLOYEES OF RESPONDENT, INCLUDING THOSE AT
 THE TELEPHONE SWITCHBOARD, WHERE THE UNFAIR LABOR PRACTICES ALLEGEDLY
 OCCURRED.
 
    2.  THE SWITCHBOARD WAS IN CONTINUOUS OPERATION, AND, WHEN POSSIBLE,
 WAS STAFFED WITH TWO DAY SHIFT OPERATORS, ONE EACH ON THE SWING AND
 GRAVEYARD SHIFTS, AND ONE CETA EMPLOYEE WHO WORKED THE DAY SHIFT FROM
 MONDAY THROUGH FRIDAY.  EXCEPT FOR THE CETA EMPLOYEE, THESE SHIFTS WERE
 ROTATED, WITH EACH EMPLOYEE BEING REQUIRED TO WORK TWO WEEKENDS OF EVERY
 FOUR.  THUS, UNLIKE THE NORMAL WORK-SCENE, WHERE PRIVILEGES ACCRUE TO
 THE SENIOR EMPLOYEES, HERE THE MOST DESIRABLE WORK WEEK WAS ENJOYED BY
 THE JUNIOR EMPLOYEE PURSUANT TO REQUIREMENTS OF THE CETA PROGRAM.  THIS,
 COMPOUNDED BY MANPOWER SHORTAGES AND THE NEED FOR REGULAR EMPLOYEES
 TO
 WORK ODD AND UNPREDICTABLE HOURS, CAUSED RESENTMENT AND PERSONALITY
 CONFLICTS, AS WILL BECOME CLEAR IN THE ENSUING DISCUSSION.
 
    3.  PEARL CANTLIN WAS APPOINTED SWITCHBOARD SUPERVISOR IN APRIL,
 1977.  IN AUGUST, JUDY BURRIS BEGAN AS A CETA TELEPHONE OPERATOR
 TRAINEE.  MONTHLY SUPERVISOR REPORTS INDICATE THAT SHE DID VERY WELL,
 CONTINUALLY IMPROVING HER PERFORMANCE.  AMONG OTHER THINGS, IT WAS NOTED
 THAT SHE HAD PARTICIPATED IN THE TRAINING OF ANOTHER EMPLOYEE WITH "EASE
 AND EFFECTIVENESS." THE ONLY NEGATIVE NOTE OCCURRED IN THE LAST SUCH
 REPORT ON JULY 21, 1978, WHEN CANTLIN, AFTER STATING THAT BURRIS HAD
 BEEN A GREAT ASSET TO THE GROUP, COMMENTED THAT A THREE-SHIFT SCHEDULE
 AND BURRIS' LEVEL ON THE CSC REGISTER CREATED A PROBLEM.  SHE OBSERVED
 THAT THEY WOULD WELCOME BURRIS AS A PERMANENT EMPLOYEE IF THESE PROBLEMS
 COULD BE OVERCOME.  BURRIS HAD INDICATED THAT SHE DID NOT DESIRE TO WORK
 NIGHTS.  IN LATE AUGUST, SHE RECEIVED A 30-DAY TEMPORARY APPOINTMENT
 PURSUANT TO WHICH, WITH THE AGREEMENT OF THE OTHER OPERATORS, SHE WORKED
 DAYS ONLY.  ON SEPTEMBER 24, THIS WAS CONVERTED TO A CAREER-CONDITIONAL
 APPOINTMENT UNDER WHICH SHE WAS REQUIRED TO SUCCESSFULLY SERVE A
 ONE-YEAR PROBATIONARY PERIOD BEFORE OBTAINING CAREER STATUS.  SHE WAS
 CLEARLY NOT ENTHUSIASTIC ABOUT THE PROSPECT OF THE MIDNIGHT SHIFT, AND
 WAS IN PART MOTIVATED TO ACCEPT THIS POSITION BECAUSE IT WAS ANTICIPATED
 THAT THE MIDNIGHT SHIFT WOULD BE ELIMINATED.  SHE UNDERSTOOD, HOWEVER,
 THAT SHE WOULD BE REQUIRED TO ROTATE ALL SHIFTS EQUALLY SHOULD THE
 CLOSEDOWN NOT OCCUR.
 
    4.  ON SEPTEMBER 29, IT WAS LEARNED THAT THE MIDNIGHT SHIFT WOULD BE
 CONTINUED.  BURRIS UNSUCCESSFULLY SOUGHT TO SWAP THE MIDNIGHT SHIFT WITH
 MARY GUARINO, AND THEREAFTER PULLED THAT SHIFT SEVERAL TIMES.  AT ABOUT
 THIS TIME, AND UNTIL TERRY WASHER AND PAM MEGAN WERE HIRED IN LATE
 DECEMBER, 1979, THE STAFF WAS SHORT AND THERE WERE SCHEDULING
 DIFFICULTIES ATTENDED BY RANCOR, BACKBITING AND GOSSIP.  WHETHER
 WELL-FOUNDED OR NOT, IT IS CLEAR THAT CANTLIN BELIEVED THAT BURRIS TOLD
 OTHER OPERATORS THAT SHE WAS PLAYING FAVORITES IN SCHEDULING.  SHE IS
 SUPPORTED IN THIS VIEW BY MARY GUARINO, WHO IS NO LONGER IN THE
 TELEPHONE UNIT.  GUARINO TESTIFIED THAT BURRIS' ATTITUDE CHANGED TOTALLY
 WHEN SHE BECAME A PERMANENT EMPLOYEE, WHERE SHE RESENTED ROTATION.  I
 CREDIT GUARINO'S STATEMENT THAT, DURING THE SCHEDULING PROBLEMS ARISING
 FROM RESPONDENT'S INABILITY TO HIRE AN ADDITIONAL OPERATOR BECAUSE OF A
 HIRING FREEZE, BURRIS SAID THAT THEY SHOULD REFUSE TO WORK OVERTIME.
 THIS WAS REPORTED BACK TO CANTLIN AS A REQUEST THAT THEY SHOULD
 COLLECTIVELY CALL IN SICK AND REFUSE OVERTIME ASSIGNMENTS IN ORDER TO
 FORCE MANAGEMENT TO HIRE.  OTHER OPERATORS, ESPECIALLY NANCY HILL AND
 PAUL KENDALL WERE UNHAPPY ALSO.  CANTLIN CLEARLY RESENTED THE ATTITUDE
 TOWARD HERSELF AND HER MOTIVATION IN SCHEDULING, AS WELL AS THE AMOUNT
 OF OVERTIME SHE HAD TO DO HERSELF AT A TIME WHEN HER SON WAS SERIOUSLY
 ILL AND HER PRESENCE AT HOME WAS PARTICULARLY NECESSARY.
 
    5.  MATTERS WERE ALLEVIATED IN LATE DECEMBER WHEN TERRY WASHER WAS
 HIRED FOR 32 HOURS PER WEEK AND VOLUNTEERED FOR THE MIDNIGHT SHIFT, AND
 LATER, WHEN PAM MEGAN WAS HIRED UNDER THE CETA PROGRAM.  IN THE MEANTIME
 HOWEVER, CANTLIN ASKED THE CHIEF OF PERSONNEL AND THE CHIEF OF MEDICAL
 ADMINISTRATIVE SERVICES FOR HELP IN RESOLVING HER PROBLEMS AND THE
 CONTINUING RESENTMENT SHE ENCOUNTERED.  THE LATTER, JOSEPH LINDSEY, MET
 WITH TWO OPERATORS AND, AT THEIR REQUEST, A MEETING WAS ARRANGED FOR
 MID-JANUARY WITH THE UNION REPRESENTED.  PRESENT WERE BURRIS, KENDALL,
 HILL, GUARINO, UNION PRESIDENT WARREN, LINDSEY AND CANTLIN.  MANY
 JOB-RELATED PROBLEMS WERE DISCUSSED FOR SEVERAL HOURS, INCLUDING
 PARTICULARLY OVERTIME, SCHEDULING AND THE HIRING OF ADDITIONAL HELP.
 PARTICULARLY RELEVANT HERE IS THAT JUDY BURRIS INQUIRED WHETHER OVERTIME
 WAS MANDATORY.  UNION PRESIDENT WARREN RESPONDED, POINTING OUT THAT
 EMPLOYEES MUST DO WHAT THEY ARE REQUESTED TO DO, OR FACE CHARGES OF
 INSUBORDINATION.
 
    6.  IN MARCH, BURRIS MADE SEVERAL REMARKS ABOUT PATIENTS WHICH ARE
 ALLEGED BY MANAGEMENT TO DEMONSTRATE THE LACK OF COMPASSION WHICH WAS
 ONE OF THE ASSIGNED REASONS FOR HER SEPARATION.  SUFFICE IT TO SAY THAT
 DO NOT THINK EITHER EVENT FIGURED PROMINENTLY IN THAT DECISION.
 
    7.  ON MARCH 26, CANTLIN RECOMMENDED THAT BURRIS BE PROMOTED TO GS-4.
  HER EXPLANATION IS THAT BURRIS HAD COMPLAINED THAT GUARINO HAD BEEN
 PROMOTED AND COULD DO NO WRONG, AND THAT SHE WAS AN OPTIMIST, BELIEVING
 THAT BURRIS WAS ESSENTIALLY ALRIGHT BUT THE VICTIM OF OTHER ESTRANGED
 EMPLOYEES (HILL AND KENDALL) WHO RESENTED HER APPOINTMENT AS A
 SUPERVISOR.  IN ANY EVENT, THE RECOMMENDATION WAS PREMATURE, AS BURRIS
 LACKED SUFFICIENT TIME IN GRADE.  IT IS INTERESTING TO NOTE THAT
 CANTLIN'S NOTES (G.C. #4) STATE THAT BURRIS DID NOT COMPLAIN TO HER
 ABOUT GUARINO'S PROMOTION, BUT WENT TO PERSONNEL, THUS INDICATING
 ANNOYANCE AT BURRIS' FAILURE TO FIRST BRING THE PROBLEM TO HER
 ATTENTION.
 
    8.  IN MARCH, CANTLIN ALSO MADE A LATE, 90-DAY EVALUATION, OF BURRIS'
 PERFORMANCE.  IT IS MISSING, BUT THERE IS NO INDICATION THAT IT WAS NOT
 A GOOD ONE, AS BURRIS TESTIFIED.  IN MAY, CANTLIN AGAIN EVALUATED BURRIS
 FOR PROMOTION TO POSITIONS ELSEWHERE IN THE HOSPITAL (G.C. #7).  THERE
 SHE WAS RATED, IN 10 OF 12 CATEGORIES, AS WHAT ONLY CAN BE DESCRIBED AS
 MERELY ADEQUATE, AS OPPOSED TO SUB-PAR OR SUPERIOR.  HER WORK WAS
 DESCRIBED AS OF HIGH QUALITY AND AS BEING DONE WITH MINIMAL SUPERVISION.
  THREE AREAS SEEMS ESPECIALLY RELEVANT HERE:  THE REPORT THAT SHE
 MAINTAINS SATISFACTORY WORK RELATIONSHIPS WITH MOST (AS OPPOSED TO ALL)
 PEOPLE, THAT SHE NORMALLY ACCEPTS AND FOLLOWS SUPERVISORY DIRECTION (AS
 OPPOSED TO READILY ACCEPTING ADDITIONAL ASSIGNMENTS AND WORKING WELL AS
 A TEAM MEMBER), AND THAT SHE ADJUSTS SATISFACTORILY TO NEW SITUATIONS.
 THE GENERAL COUNSEL OFFERS THIS AS EVIDENCE OF A FULLY SATISFACTORY
 PERFORMANCE, WHICH WAS ENTERED DURING THE MONTH BEFORE BURRIS ENGAGED IN
 UNION ACTIVITY, AND WHICH THEREFORE UNDERMINES THE CLAIM THEREAFTER MADE
 THAT HER WORK WAS NOT WORTHY OF CONVERSION TO CAREER STATUS.  STANDING
 ALONE, WITHOUT BENEFIT OF THE YARDSTICK USED (A COMPARISON WITH THE
 RATINGS OF OTHER OPERATORS), I FIND IT HAS LITTLE VALUE.  ON ITS FACE IT
 IS HARDLY AN ENTHUSIASTIC ENDORSEMENT FOR A PROMOTION.  IT DESCRIBES
 EMPLOYEE WITH SHORTCOMINGS, MANIFESTED AT A TIME WHEN MOTIVATION, BASED
 ON THE DESIRE TO ACHIEVE PERMANENT STATUS, SHOULD BE AT ITS HIGHEST.
 
    9.  ON APRIL 23, LYNDA CUTLER, ANOTHER CETA EMPLOYEE, WAS HIRED TO
 REPLACE PAM MEGAN.  SHE DESCRIBED HER RECEPTION BY CO-WORKERS BURRIS,
 HILL AND KENDALL AS HOSTILE.  AS AN ILLUSTRATION OF THIS SHE TESTIFIED
 THAT BURRIS WAS TELEPHONICALLY DIRECTED BY CANTLIN ONE DAY TO LISTEN TO
 CUTLER'S PHONE AND HELP TRAIN HER, AND THAT BURRIS RESPONDED BY STOMPING
 HER FEET AND REMARKING THAT THAT WAS NOT IN HER JOB DESCRIPTION.  SHE
 TESTIFIED TO ANOTHER OCCASION WHEN SHE OVERHEARD BURRIS SAY TO ANOTHER
 OPERATOR THAT SHE DID NOT UNDERSTAND WHY CETA EMPLOYEES DID NOT SHARE
 THE BURDEN OF OVERTIME.  SHORTLY AFTER REPORTING FOR DUTY, CUTLER CALLED
 CANTLIN AT HOME, UPSET ABOUT THE APPARENT RESENTMENT TOWARD HER AND THE
 FAILURE OF OTHER OPERATORS, PARTICULARLY BURRIS, TO TRAIN HER, AND
 INCLINED TO QUIT.  CUTLER REPORTED THAT BURRIS WOULD NOT ANSWER HER
 QUESTIONS, GOSSIPED ABOUT CANTLIN AND HER PETS AND SPIES, AND STATED
 THAT GUARINO COULD DO NO WRONG.  SHE ALSO SAID THAT NANCY HILL WAS COOL
 AND RESENTFUL AND THAT PAUL KENDALL WAS SARCASTIC.  THIS LED TO A
 MEETING BETWEEN CANTLIN, CUTLER, KENDALL AND BURRIS ABOUT THE TRAINING
 OF NEW EMPLOYEES.  IT IS APPARENT THAT KENDALL AND HILL WERE NOT HELPFUL
 EITHER.  ACCORDING TO CUTLER, THOSE TWO AND BURRIS SPOKE OF QUITTING
 TOGETHER SO AS TO EMBARRASS CANTLIN.  THE CHIEF ILLUSTRATION OF BURRIS'
 ALLEGED UNWILLINGNESS TO HELP TRAINEES OCCURRED WHEN AN AMBU, OR
 EMERGENCY CALL WAS TAKEN BY CUTLER ON JUNE 11.  ACCORDING TO CUTLER, IT
 WAS HER FIRST AMBU CALL AND, UNSURE OF HERSELF, SHE SOUGHT ASSISTANCE
 FROM BURRIS BUT, BEING IGNORED, DID NOT GET HER ATTENTION UNTIL AFTER
 THE CALLING PARTY WAS OFF THE LINE.  SHE THEN REPEATED THE MESSAGE TO
 BURRIS THAT A DOCTOR WAS NEEDED IN ROOM 330, AND BURRIS PAGED AMBU TO
 THE LIBRARY, WHERE THE TELEPHONE NUMBER WAS 330.  BURRIS TESTIFIED THAT
 THE CALL CAME, ACCORDING TO CUTLER, FROM EXTENSION 330, WHICH SHE
 THOUGHT ODD BECAUSE IT WAS THE LIBRARY.  WHEN THE MEDICAL TEAM RUSHED BY
 THE SWITCHBOARD TO THE LIBRARY AND THEN BACK, SHE ASCERTAINED THE SOURCE
 OF THE CALL, GOT THE ROOM NUMBER, AND DISPATCHED THE TEAM WITHOUT ANY
 FURTHER NEED TO PAGE.  ACCORDING TO JANET LORD, A SUPERVISOR, SHE CALLED
 THE SWITCHBOARD TO SEEK A CORRECTION OF THE PAGE, AND ENCOUNTERED SO
 MUCH RESISTANCE FROM BURRIS, WHO WAS BENT ON EXPLAINING HOW THE MISTAKE
 WAS MADE INSTEAD OF CORRECTING IT, THAT SHE HAD TO SHOUT AT BURRIS TO
 GET THE EMERGENCY PROPERLY PAGED.  BURRIS ASSERTED THAT SHE WAS SIMPLY
 TRYING TO TELL LORD THAT SHE HAD ALREADY SENT THE TEAM TO THE RIGHT
 LOCATION, SO THAT A PAGE WAS UNNECESSARY.  ANOTHER PAGE WAS THEN,
 PERHAPS NEEDLESSLY, MADE.  I FIND IT IMPOSSIBLE TO DETERMINE WHICH, IF
 ANY, OF THE EXCITED PARTICIPANTS IN THIS EMERGENCY HAS THE STORY
 STRAIGHT.  I AM, HOWEVER, IMPRESSED BY THE FACT THAT IT WAS APPARENTLY
 STANDARD PROCEDURE TO GIVE THE ROOM NUMBER, AND THAT BURRIS
 ACKNOWLEDGED
 THAT IT WAS ODD TO HAVE BEEN GIVEN A TELEPHONE NUMBER.  I AM ALSO
 INCLINED TO BELIEVE CUTLER'S VERSION THAT SHE WAS MOMENTARILY IGNORED,
 AND LOST THE CALLING PARTY BEFORE SHE PASSED THE INFORMATION ON.  I AM
 IN ANY EVENT, PERSUADED THAT CANTLIN ACCEPTED THE VERSIONS OPPOSED TO
 BURRIS'.  IT IS WHAT SHE IN FACT BELIEVED, RATHER THAN WHAT ACTUALLY
 HAPPENED, WHICH IS AT ISSUE HERE.
 
    10.  ON JUNE 7, IT WAS REPORTED, APPARENTLY, TO CANTLIN THAT BURRIS
 WAS SEEKING ANOTHER JOB AND, IF SUCCESSFUL, WOULD GIVE NOTICE TO HER
 EMPLOYER ON HER DEPARTURE DATE.
 
    11.  IN EARLY JUNE, TERRY WASHER OVERHEARD BURRIS TELLING CANTLIN
 THAT SHE WAS SICK AND DID NOT WANT TO COVER TWO MIDNIGHT SHIFTS WHEN HE
 WAS OFF, BUT THAT SHE WOULD.  WASHER WAS STILL VOLUNTARILY COVERING THAT
 SHIFT FIVE NIGHTS A WEEK.  ON THE FOLLOWING MORNING HE CALLED BURRIS TO
 SEE HOW SHE WAS FEELING AND IF SHE WANTED HIM TO TAKE THE SHIFTS.  SHE
 DECLINED HIS HELP, AND STATED THAT THE NEXT TIME THIS WAS ABOUT TO
 HAPPEN SHE "WOULD FIX PEARL" (CANTLIN) BY GETTING A DOCTOR'S STATEMENT
 THAT SHE COULD NOT WORK OVERTIME.  THIS WAS REPORTED TO CANTLIN, WHO
 ASSERTED THERE WAS NO PRIOR INDICATION THAT BURRIS' HEALTH WOULD PREVENT
 OVERTIME.
 
    12.  ON JUNE 13, SHORTLY AFTER THE AMBU INCIDENT AND THE ONE
 DESCRIBED ABOVE, CANTLIN POSTED A PROPOSED SCHEDULE FOR THE TWO WEEKS
 COMMENCING ON JUNE 25.  BECAUSE OF THE RESIGNATION OF NANCY HILL, AND
 THE ANTICIPATED MILITARY LEAVE OF PAUL KENDALL AND ANNUAL LEAVE OF
 BURRIS, OVERTIME WAS NECESSARY AND BURRIS WAS SCHEDULED FOR FOUR HOURS
 ON A SATURDAY AND TWO ON THE FOLLOWING SUNDAY.  BURRIS WAS UPSET.  SHE
 REQUESTED AND RECEIVED OFFICIAL TIME TO DISCUSS THE MATTER WITH UNION
 PRESIDENT WARREN, AS DID KENDALL.  SHE TOLD WARREN THAT HER HEALTH WOULD
 NOT PERMIT CONTINUED OVERTIME.  WARREN SAID SHE WOULD ARRANGE A MEETING.
  SOMETIME DURING THE DAY BURRIS ALSO TOLD CANTLIN THAT SHE DID NOT KNOW
 HOW MUCH LONGER SHE COULD WORK THE NIGHT SHIFT;  THAT SHE FELT SHE HAD
 HIGH BLOOD PRESSURE AND MAYBE HEART PROBLEMS;  AND THAT SHE KNEW THAT IF
 SHE SAW A DOCTOR HE WOULD TELL HER TO STAY HOME FOR REST.  CANTLIN
 SUGGESTED SHE GO TO THE CLINIC, BUT BURRIS SAID THE VA DOCTORS COULD NOT
 HELP HER.  LATER THAN DAY, WILLIAM MONTAGUE, CHIEF MEDICAL
 ADMINISTRATION, CALLED CANTLIN TO SAY THAT UNION PRESIDENT WARREN WANTED
 A MEETING ABOUT THE POSTED SCHEDULE.
 
    13.  ON JUNE 14, A MEETING WAS HELD INVOLVING MONTAGUE, CANTLIN,
 WARREN, BURRIS AND KENDALL.  BURRIS SAID THAT SHE COULD NOT WORK
 OVERTIME BECAUSE OF HER HEALTH.  MONTAGUE RESPONDED THAT HE WOULD GET
 SOMEONE TO COVER IF HE COULD, BUT IF HE COULD NOT, SHE WOULD HAVE TO
 WORK THE OVERTIME UNLESS SHE PRODUCED A DOCTOR'S CERTIFICATE.
 MANAGEMENT FURTHER SAID IT WAS DOING EVERYTHING IT COULD TO SECURE A
 REPLACEMENT FOR NANCY HILL.  ON THE NEXT DAY, CANTLIN ASKED MONTAGUE WHO
 HAS REQUESTED THE UNION MEETING, NOTING THAT NEITHER BURRIS NOR KENDALL
 HAD APPROACHED HER ABOUT PROBLEMS WITH THE SCHEDULE.  SHE WAS INFORMED
 THAT WARREN HAD DONE SO.
 
    14.  ON JUNE 18, BURRIS CALLED CANTLIN, AT HOME TO ADVISE HER THAT
 HER DOCTOR TOLD HER TO STAY HOME ONE WEEK.  THE NEXT DAY HIS STATEMENT
 WAS RECEIVED, INDICATING THAT SHE SHOULD BE PLACED ON SICK LEAVE FROM
 JUNE 20 TO JUNE 26.  WHEN BURRIS RETURNED TO WORK ON JUNE 27, SHE
 BROUGHT A DOCTOR'S STATEMENT THAT SHE SHOULD BE ASSIGNED NO OVERTIME FOR
 AT LEAST ONE MONTH.  IT WAS REPORTED TO CANTLIN THAT BURRIS TOLD ANOTHER
 OPERATOR THAT CANTLIN WAS RUDE IN RESCHEDULING HER FOR WORK THE
 FOLLOWING SATURDAY WHEN HER SCHEDULED ANNUAL LEAVE BEGAN THE FOLLOWING
 MONDAY.  ALTHOUGH RESPONDENT DID NOT CHALLENGE THE DOCTOR'S CERTIFICATE,
 IT IS CLEAR THAT CANTLIN BELIEVED THE EXCUSE WAS UNJUSTIFIED.
 
    15.  ON JULY 12, BURRIS ARRANGED WITH SUPERVISOR JANET LORD FOR THREE
 HOURS OF OVERTIME FOR PURPOSES OF MAKE-UP CLASSES IN REQUIRED TRAINING.
 WHATEVER THE PRIORITIES WERE, CANTLIN CLEARLY CONSIDERED THIS AN AFFRONT
 IN VIEW OF BURRIS' MEDICAL EXCUSE FOR AVOIDANCE OF SIMILAR OVERTIME AT
 THE SWITCHBOARD, AND HER FAILURE TO TAKE THE MATTER UP WITH CANTLIN.
 CANTLIN IN FACT INTERVENED TO CANCEL FUTURE CLASSES AND SPOKE TO BURRIS
 ABOUT THE MATTER.
 
    16.  ON JULY 17 OR 18, A NINE-WEEK SCHEDULE WAS POSTED, IN WHICH
 BURRIS APPARENTLY RECEIVED A CONSIDERABLE SHARE OF NIGHT AND WEEKEND
 WORK.  SHE SPOKE TO UNION STEWARD ROBIN RAFUSE ON HER WAY OUT AT
 MIDNIGHT.  RAFUSE SUGGESTED SHE SPEAK TO CANTLIN AND SEEK A FAIRER
 DISTRIBUTION OF WEEKEND WORK AND SHIFTS.  SOMETIME LATER, UNABLE TO
 DISCUSS THE MATTER WITH CANTLIN, WHO WAS ABSENT, SHE LEFT HER A NOTE
 REQUESTING AN EXPLANATION.  CANTLIN CALLED, ASKED HER UP TO THE OFFICE,
 AND PROVIDED AN EXPLANATION.  SHE ALSO TOLD BURRIS THAT SHE KNEW BURRIS
 HAD TALKED TO A UNION REPRESENTATIVE ALTHOUGH SHE HAD TOLD ALL OPERATORS
 TO COME TO HER AND ATTEMPT TO STRAIGHTEN PROBLEMS OUT BEFORE GOING TO
 THE UNION.  /1/
 
    17.  ON JULY 24, WITHIN A WEEK OF THE ABOVE-DESCRIBED ENCOUNTER,
 BURRIS COMPLETED 10 MONTHS OF PROBATIONARY SERVICE.  CANTLIN WAS
 REQUIRED, ON OR BEFORE THAT DATE, TO MAKE OUT A FORM RECOMMENDING THAT
 BURRIS BE RETAINED OR BE SEPARATED BEFORE THE END OF HER PROBATIONARY
 YEAR.  AS RESPONDENT RIGHTLY POINTS OUT, THIS IS NOT A CASE WHERE
 ADVERSE ACTION SIMPLY FOLLOWED HARD UPON THE HEELS OF THE UNION ACTIVITY
 SO AS TO GIVE RISE TO AN INFERENCE THAT THE ONE CAUSED THE OTHER.  THAT
 INFERENCE IS WEAKENED WHERE THE TIMING OF THE SECOND EVENT WAS A FEDERAL
 PERSONNEL MANUAL REQUIREMENT BEYOND MANAGEMENT'S CONTROL.  HERE CANTLIN
 HAD TO MAKE THE VERY SERIOUS DECISION WHETHER BURRIS SHOULD BE RETAINED
 AS A CAREER CIVIL SERVANT BY JULY 24.  SHE IN FACT COMPLETED THE FORM ON
 JULY 30-- THE SAME DAY MAS CHIEF MONTAGUE SIGNED OFF-- HAVING MADE
 SEVERAL DAYS EARLIER A VERBAL RECOMMENDATION WHICH SHE WAS REQUIRED TO
 DOCUMENT WITH THE NOTES IN EVIDENCE AS G.C. EXH.  4.  SEPARATION WAS
 RECOMMENDED ON THE FOLLOWING GROUNDS:
 
    (1) DOES NOT MANIFEST TEAMWORK.
 
    (2) DOES NOT ACCEPT CHANGE (SCHEDULE, OVERTIME).
 
    (3) UNWILLING TO ACCEPT NEW PEOPLE OR HELP TRAIN THEM.
 
    (4) DOES NOT TOLERATE OR SHOW COMPASSION FOR CERTAIN TYPE PATIENTS.
 
    (5) DOES NOT FOLLOW CHAIN OF COMMAND.
 
    18.  ON AUGUST 1, MONTAGUE PREPARED A MEMO TO BURRIS ANNOUNCING A
 MEETING ON AUGUST 6 TO DISCUSS HER REMOVAL DURING THE PROBATIONARY
 PERIOD.  THE MEETING WAS ATTENDED BY MAS CHIEF MONTAGUE, ACTING
 PERSONNEL DIRECTOR DUTILLE, CANTLIN, UNION PRESIDENT WARREN AND BURRIS.
 THE FIVE REASONS WERE READ BY DUTILLE, AND IN RESPONSE TO WARREN'S
 REQUEST FOR SPECIFICS, SHE WAS GIVEN A COPY OF THE SUPERVISORS' NOTES AS
 THE SUBSTANTIATION OF MANAGEMENT'S DECISION.  WARREN WAS UPSET AT THE
 SEVERAL REFERENCES TO THE UNION AND WAS TOLD THAT IT HAD NO BEARING UPON
 THE TERMINATION.  WHEN SHE REACHED THE NOTES OF THE JULY 18 MEETING
 WARREN ASKED CANTLIN HOW SHE KNEW BURRIS HAD CONTACTED HER UNION
 REPRESENTATIVE.  CANTLIN RESPONDED THAT SHE HAD BEEN TOLD, AND WARREN
 THEN SAID THAT BURRIS HAD EVERY RIGHT TO CONTACT A UNION REPRESENTATIVE
 AND DISCUSS HER SCHEDULE OR ANY OTHER PROBLEM.  CANTLIN THEN SAID SHE
 HAD TOLD BURRIS MANY TIMES TO COME TO HER FIRST BEFORE GOING TO THE
 UNION OR ANYONE ELSE WITH A PROBLEM.  IT WAS ANNOUNCED THAT BURRIS WOULD
 BE SEPARATED EFFECTIVE AUGUST 18.  UNTIL THIS MEETING, BURRIS HAD NEVER
 RECEIVED ANY WRITTEN REPRIMAND OR OTHER WRITTEN NOTICE OF SHORTCOMINGS
 AS AN EMPLOYEE.  NOR HAD ANY OTHER EMPLOYEE UNDER CANTLIN'S SUPERVISION.
 
    19.  ON AUGUST 9, BURRIS WAS SERVED WITH WRITTEN NOTICE OF
 TERMINATION FROM ACTING PERSONNEL CHIEF DUTILLE, BASED UPON THE SAME
 REASONS EXCEPT FOR THE CURIOUS AND SUSPICIOUS OMISSION OF ANY REFERENCE
 TO THE FAILURE TO FOLLOW THE CHAIN OF COMMAND.  WHETHER THIS REPRESENTS
 DUTILLE'S DECISION NOT TO RELY UPON THAT REASON IS UNEXPLAINED.  CANTLIN
 DID TESTIFY THAT THIS WAS NOT "BASICALLY" A REASON, ALTHOUGH, ASIDE FROM
 THE UNION, THERE WERE SEVERAL INSTANCES OF SUCH CONDUCT-- GOING TO
 PERSONNEL ABOUT A PROMOTION AND GOING TO JANET LORD ABOUT MAKE-UP
 CLASSES.
 
    20.  LAST, I DEEM IT USEFUL TO SET FORTH CERTAIN EXCERPTS FROM THE
 TRANSCRIPT, AS COUNSEL FOR THE GENERAL COUNSEL RELIES HEAVILY UPON PARTS
 OF THEM AS CONTAINING VIRTUAL ADMISSIONS BY CANTLIN THAT HER ACTION
 AGAINST BURRIS WAS MOTIVATED BY ANTI-UNION CONSIDERATIONS.  THE COLLOQUY
 QUOTED COMES FROM RIGOROUS AND SKILLFUL EXAMINATION OF CANTLIN PURSUANT
 TO RULE 611(C).  AS THE QUESTIONS MAKE CLEAR, COUNSEL REPEATEDLY
 ATTEMPTED TO EXTRACT A CONCESSION THAT BURRIS' HAVING GONE TO THE UNION
 AND SET UP THE MEETING OF JUNE 14 WAS THE EVENT WHICH PRECIPITATED THE
 RECOMMENDATION THAT BURRIS BE SEPARATED.  IN MY JUDGEMENT, THERE WAS
 UNAVOIDABLE CONFUSION AS TO WHETHER CANTLIN WAS UPSET BY THE VERY FACT
 THAT A UNION MEETING WAS TAKING PLACE, OR BY WHAT WAS SAID AT THAT
 MEETING, OR BY BOTH.  THOSE EXCERPTS ARE AS FOLLOWS:
 
    Q.  WHAT EXACTLY OCCURRED IN JUNE ABOUT HER (BURRIS) NOT ACCEPTING
 CHANGE EXCEPT FOR THE
 
    FACT THAT A MEETING WAS HELD IN WHICH UNION WAS INVOLVED?  IS THAT
 IT?  DID THAT MANIFEST THAT
 
    SHE DID NOT ACCEPT CHANGE (TR. 58).
 
    A.  SHE SAID THAT SHE COULD NOT WORK OVERTIME.
 
    Q.  DID SHE SAY THAT AT THIS UNION MEETING THAT WAS HELD?
 
    A.  YES, YES.
 
   .          .          .          .
 
 
    Q.  (DESIRE NOT TO WORK OVERTIME) IS A VALID WORKER'S COMPLAINT,
 ISN'T IT?
 
    A.  RIGHT.
 
    Q.  AND SHE WAS WITH THE UNION MAKING THIS COMPLAINT?
 
    A.  RIGHT.
 
    Q.  AND YOU'RE SAYING THAT INDICATED TO YOU THAT SHE WOULD NOT ACCEPT
 A CHANGE, TRUE?
 
    A.  THAT WAS ONE OF THEM.
 
    Q.  OKAY.
 
    A.  YES.
 
    Q.  SHE WENT TO THE UNION AND VOICED THESE COMPLAINTS, RIGHT?
 
    A.  YES.
 
   .          .          .          .
 
 
    (THERE FOLLOWED QUESTIONS WHICH LED TO CANTLIN'S RECOUNTING THE EARLY
 JUNE INCIDENT IN WHICH BURRIS TOLD TERRY WASHER THAT SHE WOULD "FIX"
 CANTLIN, PREVENTING THE ASSIGNMENT OF FURTHER OVERTIME BY GETTING A
 MEDICAL STATEMENT PROHIBITING IT.  THEN AFTER OTHER MATTERS WERE
 COVERED, COUNSEL RETURNED TO THE ULTIMATE QUESTION:
 
    Q.  AND YOU DISCHARGED JUDY BURRIS BECAUSE OF HER COMPLAINTS AND HER
 REFUSAL TO ACCEPT
 
    ORDERS OR YOUR METHOD OF SCHEDULING, RIGHT?  (TR. 79).
 
    A.  PART OF IT.
 
    Q.  AND PART OF THAT WAS HER COMPLAINTS AT THE JUNE MEETING AS YOU
 TESTIFIED HERE TODAY,
 
    RIGHT?
 
    A.  THAT MEETING, YES.
 
    I DO NOT REGARD THE ADMISSION THAT CANTLIN WAS IN PART MOTIVATED TO
 SEPARATE BURRIS BY STATEMENTS THE LATTER MADE AT THE MEETING ATTENDED BY
 UNION PRESIDENT WARREN AS AN ADMISSION THAT GOING TO THE UNION WITH HER
 COMPLAINTS WAS A REASON.  RATHER, I VIEW IT AS A STATEMENT THAT BURRIS'
 CONTINUING RESISTANCE TO OVERTIME, MIDNIGHT SHIFT AND WEEKEND WORK, AS
 EXPRESSED ONCE AGAIN, ALBEIT AT A MEETING WITH THE UNION, WAS INDEED A
 REASON.  JUST AS UNION ACTIVITY DOES NOT CLOAK AN OTHERWISE
 UNSATISFACTORY EMPLOYEE WITH IMMUNITY FROM DISCIPLINE, ANY STATEMENT
 UTTERED IN A MEETING WITH A UNION REPRESENTATIVE PRESENT DOES NOT
 THEREBY BECOME A SPECIES OF UNION ACTIVITY WHICH MAY NOT BE A VALID
 BASIS FOR EMPLOYMENT DECISIONS.  I CONCLUDE THAT CANTLIN CONCEDED ONLY
 THAT BURRIS' RESISTANCE TO SCHEDULE CHANGES, AS REITERATED AT THE
 MEETING WITH THE UNION, AND AS UNDERSCORED BY HER THREAT, PROMISE OR
 PREDICTION THAT A DOCTOR'S EXCUSE WOULD BE FORTHCOMING, WAS AN IMPORTANT
 CONSIDERATION IN HER DECISION TO RECOMMEND THAT BURRIS BE SEPARATED.
 
                            CONCLUSIONS OF LAW
 
    SECTION 7116(A)(1) AND (2) PROHIBIT A DISCHARGE, EVEN IF A LEGITIMATE
 BASIS FOR SUCH ACTION EXISTED, IF CONSIDERATIONS OF UNION ACTIVITY
 PLAYED ANY PART IN THAT DECISION.  DIRECTORATE OF SUPPLY OPERATIONS,
 DEFENSE LOGISTICS AGENCY, 2 FLRA 118.  /2/ SECTION 7116(A)(1) PROHIBITS
 ANY STATEMENT BY AGENCY MANAGEMENT WHICH IMPLIES ADVERSE EMPLOYMENT
 CONSEQUENCES FOR AN EMPLOYEE WHO SEEKS OR ACCEPTS UNION ASSISTANCE AND
 REPRESENTATION CONCERNING GRIEVANCES, PERSONNEL POLICIES AND PRACTICES
 OR OTHER MATTERS AFFECTING EMPLOYMENT.  HEW, SOCIAL SECURITY
 ADMINISTRATION, GREAT LAKES PROGRAM SERVICE CENTER, 2 FLRC 12;  DOT,
 FEDERAL AVIATION ADMINISTRATION, 6 A/SLMR 523.
 
    THE FIRST ISSUE IS WHETHER CANTLIN'S SEVERAL STATEMENTS TO BURRIS
 (AND OTHERS), THAT THEY SHOULD COME TO HER WITH THEIR PROBLEMS BEFORE
 GOING TO THE UNION, UNLAWFULLY INTERFERED WITH RIGHTS ASSURED BY THE
 STATUTE.  NO CASES HAVE BEEN CITED WHICH TREAT WITH A STATEMENT SIMILAR
 TO THIS ONE.  HERE THERE WAS NO EXPLICIT THREAT, AS WAS THE CASE IN FAA,
 SUPRA, WHERE A SECTOR MANAGER PLAINLY STATED THAT THE EMPLOYEE'S CONDUCT
 IN LETTING THE UNION LEAD HIM AROUND "WAS NOT THE WAY TO GET AHEAD."
 HERE A FIRST LINE SUPERVISOR INFORMED SUBORDINATES THAT THEY SHOULD SEEK
 SOLUTIONS TO THEIR SCHEDULING OR OTHER PROBLEMS BY BRINGING THEM TO HER
 ATTENTION BEFORE INVOLVING THE UNION, OR, FOR THAT MATTER, OTHER LEVELS
 OF MANAGEMENT.  AS SHE PUT IT, SHE COULD NOT STRAIGHTEN OUT PROBLEMS
 UNLESS THEY WERE BROUGHT TO HER ATTENTION.  SHE THOUGHT IT WAS UNFAIR TO
 "BYPASS" HER IN THIS WAY.  SHE RESENTED IT, JUST AS SHE WAS ANNOYED WHEN
 BURRIS WENT DIRECTLY TO PERSONNEL TO SEEK A GS-4 AND COMPLAIN ABOUT
 ALLEGED FAVORITISM TO MARY GUARINO, AND WHEN SHE WENT TO SUPERVISOR
 JANET LORD ABOUT HER TRAINING SCHEDULE.
 
    CANTLIN'S STATEMENT WAS UNACCOMPANIED BY ANY SUGGESTION OF ADVERSE
 CONSEQUENCES, NOR WAS IT EVEN ALLEGED THAT HER TONE OR MANNER WERE
 THREATENING.  THIS RECORD, IN FACT, RATHER STRONGLY INDICATES THAT
 CANTLIN WAS NOT TOUGH ENOUGH IN DEALING WITH HER SUBORDINATES IN THE
 EFFORT TO ENSURE THAT THE SWITCHBOARD WAS PROPERLY COVERED AT ALL TIMES.
  OUT OF HER OWN DESPERATION SHE SOUGHT THE ASSISTANCE OF HIGHER
 MANAGEMENT IN DEALING WITH HER PROBLEMS IN THE WINTER OF 1979, WHICH
 LEAD TO THE JANUARY MEETING WITH LOCAL PRESIDENT WARREN IN ATTENDANCE.
 THERE IS IN THIS RECORD NO INDICATION THAT THE UNION AND THE HOSPITAL
 DID NOT ENJOY A HARMONIOUS RELATIONSHIP UNTIL THE DECISION TO SEPARATE
 BURRIS OCCURRED.  THERE IS ABSOLUTELY NO EVIDENCE OF ANTI-UNION ANIMUS.
 I AM URGED TO ACCEPT, AS SUCH EVIDENCE, THE FACT THAT PRESIDENT WARREN
 AND CANTLIN HAD VERY GOOD WORK AND SOCIAL RELATIONSHIPS UNTIL THAT
 JANUARY MEETING, AND THAT CANTLIN THEREAFTER DID NOT SPEAK TO HER.  THE
 REASONS FOR THE ALLEGED RUPTURE ARE UNDISCLOSED.  I CANNOT EQUATE A
 FAILURE TO REMAIN ON FRIENDLY TERMS WITH A UNION OFFICIAL-- WHATEVER ITS
 CAUSE-- WITH EVIDENCE OF ANTI-UNION ANIMUS.  THE OBLIGATION TO ACCEPT A
 UNION, RESPECT IT ROLE AND DEAL WITH IT IN GOOD FAITH, NO MORE REQUIRES
 AFFECTION FOR A UNION AGENT THAN DOES THE INJUNCTION THAT YOU LOVE YOUR
 NEIGHBOR COMMAND THAT YOU LIKE HIM.  THUS, I FIND NOTHING IN THE
 ENVIRONMENT OF THE STATEMENTS WITH WHICH TO CONSTRUCT AN IMPLIED THREAT
 OF ADVERSE CONSEQUENCES FOR THOSE WHO DISOBEYED IT.  SUCH A THREAT WOULD
 INHERE IN THESE CIRCUMSTANCES ONLY BY APPLICATION OF THE LOGIC THAT
 THERE IS IMPLIED, IN ANY INSTRUCTION OR REQUEST FROM A SUPERVISOR, THE
 THREAT THAT YOU DISREGARD IT AT YOUR PERIL.  I AM RELUCTANT TO ACCEPT
 SUCH A PER SE APPROACH, ALTHOUGH IT HAS THE VIRTUE OF BEING EASY TO
 APPLY AND VERY OFTEN CORRECT.  ITS VICE IS THAT IT CAN DO VIOLENCE TO
 THE PARTICULARS OF ANY GIVEN SITUATION, AND THAT IT WOULD TEND TO MUZZLE
 SUPERVISORS WHO WISH TO EXPRESS USEFUL VIEWS OR OPINIONS IN AN
 NON-THREATENING WAY.
 
    IN THE PRIVATE SECTOR THE NATIONAL LABOR RELATIONS BOARD HAD OCCASION
 TO ADDRESS A VIRTUALLY IDENTICAL STATEMENT IN AMERICAN BUILDING AND
 MAINTENANCE COMPANY OF CALIFORNIA, 166 NLRB 143.  THERE RESPONDENT WAS
 ALLEGED TO HAVE UNLAWFULLY INSTRUCTED EMPLOYEES TO DEAL DIRECTLY WITH IT
 CONCERNING THEIR PROBLEMS, THEREBY BYPASSING THE DULY DESIGNATED
 COLLECTIVE BARGAINING REPRESENTATIVE.  A SUPERVISOR OF RESPONDENT'S 58
 JANITORIAL EMPLOYEES TOLD THEM "IF YOU HAVE ANY PROBLEMS, DON'T RUN TO
 THE UNION.  LETS SEE WHAT WE CAN DO ABOUT THEM TO STRAIGHTEN THEM OUT."
 HE ALSO SAID HE SAW NO REASON FOR THEM "TO RUN TO THE UNION" IF THEY HAD
 ANY COMPLAINTS, AND PROPOSED THAT THEY "TRY TO WORK IT OUT BEFORE YOU GO
 TO THE UNION." NOTING AN AMICABLE COLLECTIVE BARGAINING HISTORY, THE
 EXISTENCE OF A CONTRACT WITH GRIEVANCE AND ARBITRATION MACHINERY, THE
 ADMITTED ABSENCE OF ANY PRIOR UNFAIR LABOR PRACTICE PROCEEDING AND THE
 LACK OF ANTI-UNION BIAS OR HOSTILITY, THE ADMINISTRATIVE LAW JUDGE
 CONCLUDED THAT IT WAS FARFETCHED TO MAINTAIN THAT RESPONDENT WAS ASKING
 EMPLOYEES TO DEAL WITH IT DIRECTLY AND BYPASS THE UNION IN DEROGATION OF
 ITS STATUS AS THE EXCLUSIVE BARGAINING REPRESENTATIVE.  RATHER, HE FOUND
 THE REMARKS TO CONSTITUTE AN EFFORT TO PERSUADE EMPLOYEES TO ADJUST ANY
 DISPUTES WITH HIM BEFORE RESORTING TO THE GRIEVANCE MACHINERY, CONDUCT
 WHICH HE FOUND NEITHER UNREASONABLE NOR UNLAWFUL BUT RATHER DESIRABLE
 AND TO BE ENCOURAGED.  A PANEL OF CHAIRMAN MCCULLOCH, FANNING AND BROWN
 ADOPTED THE ALJ'S RECOMMENDATIONS.  I FIND NO SIGNIFICANT DIFFERENCE
 BETWEEN THE STATEMENTS THERE MADE AND THOSE OF CANTLIN, NOR IS THERE A
 DIFFERENCE IN THE LABOR RELATIONS "CLIMATES." WHILE THE DECISIONS OF THE
 NLRB ARE GUIDANCE ONLY, I COMMEND THIS ONE TO THE AUTHORITY.  I
 RECOMMEND THAT THE ALLEGED VIOLATIONS OF SECTION 7116(A)(1) BASED ON
 CANTLIN'S REMARKS BE DISMISSED.
 
    AS IS CLEAR FROM MY DISCUSSION OF THE FACTS SURROUNDING THE DECISION
 TO TERMINATE BURRIS, I AM CONVINCED THAT SHE NEVER MADE THE ADJUSTMENT
 FROM DAY WORK ON MONDAY THROUGH FRIDAY AS A CETA EMPLOYEE, TO THE
 VARIOUS SHIFTS, OVERTIME AND WEEKEND WORK REQUIRED OF REGULAR EMPLOYEES.
  THIS RECORD IS REPLETE WITH INCIDENTS DEMONSTRATING HER RELUCTANCE TO
 ACCEPT OVERTIME, MIDNIGHT AND WEEKEND ASSIGNMENTS, AND HER DISPOSITION
 TO TAKE ACTION TO AVOID THEM.  SHE WAS LARGELY ABLE TO AVOID SUCH WORK,
 IN PART BECAUSE TERRY WASHER WAS HIRED AND VOLUNTEERED FOR NIGHT WORK,
 UNTIL HILL RESIGNED IN JUNE.  AT THIS POINT, SHE MADE CLEAR IN HER
 REMARK TO TERRY WASHER THAT SHE WOULD GET A DOCTOR'S CERTIFICATE IN
 ORDER TO ESCAPE OTHERWISE UNAVOIDABLE OVERTIME AND WEEKEND WORK.  SHE
 HAD FROM THE FIRST BEEN RELUCTANT TO ACCEPT SUCH WORK, WITNESS THE
 STATEMENT IN THE FALL OF 1978 THAT THE OPERATORS SHOULD REFUSE OVERTIME
 ASSIGNMENTS.  HOWEVER, UNTIL THE SUMMER OF 1979, THIS PROBLEM BECAME
 ACUTE ONLY DURING THE CHRISTMAS AND NEW YEAR HOLIDAY SEASON.  IT WENT
 AWAY AGAIN WHEN NEW HIRES OCCURRED AND BURRIS WAS NOT CALLED UPON TO DO
 SUCH WORK.  DURING THIS PERIOD CANTLIN DID GIVE HER FAIRLY GOOD
 APPRAISALS AND EVEN, IN MARCH, RECOMMENDED A PROMOTION.  I ACCEPT
 CANTLIN'S TESTIMONY THAT SHE STILL HOPED FOR THE BEST AND BELIEVED SHE
 COULD PUT