Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana (Respondent) and American Federation of Government Employees, Local 3457, AFL-CIO (Charging Party)



[ v06 p600 ]
06:0600(107)CA
The decision of the Authority follows:


 6 FLRA No. 107
 
 DEPARTMENT OF THE INTERIOR
 U.S. GEOLOGICAL SURVEY
 CONSERVATION DIVISION
 GULF OF MEXICO REGION
 METAIRIE, LOUISIANA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3457, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-255 /1/
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE RESPONDENT FILED AN OPPOSITION TO
 THE GENERAL COUNSEL'S EXCEPTIONS.
 
    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 (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
 RECOMMENDATION.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-255 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 -------------------- ALJ DECISION FOLLOWS --------------------
 
    JAMES W. DEMIK, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEATRICE G. CHESTER, ESQUIRE
    SHERMAN O. BRAWNER
    DONALD R. POCH
    FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.C.S. 7101, /3/ ET SEQ., AND THE FINAL RULES AND
 REGULATIONS ISSUED PURSUANT THERETO, FED. REG. VOL. 45, NO. 12, JANUARY
 17, 1980.
 
    THE ORIGINAL CHARGE IN THIS CASE (G.C. EXH. 1(C)) WAS FILED SEPTEMBER
 25, 1979, AND FIRST AMENDED CHARGES WAS FILED FEBRUARY 14, 1980.  THE
 CONSOLIDATED COMPLAINT AND NOTICE OF HEARING IN CASE NOS. 6-CA-209 AND
 6-CA-255 ISSUED ON FEBRUARY 20, 1980, AND AN AMENDED CONSOLIDATED
 COMPLAINT ISSUED ON MARCH 25, 1980, PURSUANT TO WHICH A HEARING WAS DULY
 HELD ON APRIL 17 AND 18, 1980, IN NEW ORLEANS, LOUISIANA, BEFORE THE
 UNDERSIGNED.
 
    ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO
 INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED.  AT THE CLOSE OF THE
 HEARING, MAY 19, 1980, WAS FIXED AS THE DATE FOR THE MAILING OF
 POST-HEARING BRIEFS, WHICH TIME AT THE JOINT REQUEST OF THE PARTIES, AND
 FOR GOOD CAUSE SHOWN, WAS SUBSEQUENTLY EXTENDED TO JUNE 2, 1980.
 COUNSEL FOR EACH PARTY TIMELY FILED VERY HELPFUL BRIEFS WHICH HAVE BEEN
 CAREFULLY CONSIDERED.  UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS AND CONCLUSIONS.
 
    AS NOTED ABOVE, THE AMENDED CONSOLIDATED COMPLAINT CONSOLIDATED THIS
 CASE WITH 6-CA-209 AND WAS HEARD BEFORE THE UNDERSIGNED TOGETHER WITH
 CASE NO. 6-CA-209.  FOR REASONS MORE FULLY STATED IN THE DECISION IN
 CASE NO. 6-CA-209, INTER ALIA, THE SIGNIFICANCE OF THE LEGAL ISSUES
 RAISED IN CASE NO. 6-CA-209 AND THE ABSENCE OF ANY COMMON QUESTION OF
 LAW OR FACT, FOR THE PURPOSE OF DECISION I HAVE, PURSUANT TO SEC.
 2423.19(K) AND (T) OF THE REGULATIONS, SEVERED THE CASES FOR THE PURPOSE
 OF DECISION AND HAVE, ACCORDINGLY, ISSUED A SEPARATE DECISION IN EACH
 CASE.
 
                         FINDINGS AND CONCLUSIONS
 
    THE ISSUE IN THIS CASE IS WHETHER, AS ALLEGED, RESPONDENT VIOLATED
 SEC. 16(A)(1) OF THE STATUTE BY STATING THAT A "MARGINAL" RATING HAD
 BEEN GIVEN TO MS. MCCLOUD BECAUSE SHE HAD FILED A GRIEVANCE.  FOR
 REASONS SET FORTH HEREINAFTER, I CONCLUDE THAT THE PREPONDERANCE OF THE
 EVIDENCE DOES NOT ESTABLISH THAT ANY SUCH STATEMENT WAS MADE AND,
 ACCORDINGLY, RESPONDENT DID NOT VIOLATE SEC. 16(A)(1) BY ITS RATING OF
 MS. MCCLOUD.  IN REACHING THIS CONCLUSION, I HAVE CAREFULLY WEIGHED MS.
 MCCLOUD'S TESTIMONY, THAT MR. STRICKLAND MADE SUCH STATEMENT, BUT,
 CONSIDERING ALL THE EVIDENCE AND TESTIMONY, FIND HER TESTIMONY HIGHLY
 IMPROBABLE;  THE OVERWHELMING WEIGHT OF THE EVIDENCE AND TESTIMONY IS TO
 THE CONTRARY, AND, ACCORDINGLY, I DO NOT CREDIT MS.  MCCLOUD'S
 TESTIMONY.
 
    1.  MS. RUTH MCCLOUD BEGAN HER EMPLOYMENT WITH RESPONDENT IN JULY,
 1977, AS A GS-4 CASH DISBURSEMENT CLERK IN THE GENERAL ACCOUNTING
 SECTION.  /4/ HER IMMEDIATE SUPERVISOR WAS MR. JOSEPH HOLLARD;  HOWEVER,
 HE WAS NOT ON DUTY, BECAUSE OF MEDICAL SURGERY, UNTIL NOVEMBER, 1977.
 MR. HOLLARD REMAINED AS SUPERVISOR OF THE GENERAL ACCOUNTING SECTION
 UNTIL SEPTEMBER, 1978, WHEN, DUE TO A REORGANIZATION, HE WAS TRANSFERRED
 TO THE PRODUCT VALUE SECTION AND MR. GLYN STRICKLAND WAS MADE ACTING
 SUPERVISOR OF GENERAL ACCOUNTING.  IN JANUARY, 1979, MR. STRICKLAND WAS
 SELECTED AS SUPERVISOR OF THE ROYALTY IN KIND SECTION;  HOWEVER, HE
 CONTINUED TO FUNCTION AS ACTING SUPERVISOR OF GENERAL ACCOUNTING UNTIL
 THE END OF MAY, 1979.
 
    2.  WHILE UNDER THE SUPERVISION OF MR. HOLLARD, MS. MCCLOUD WAS
 PROMOTED TO GS-5.
 
    3.  SHORTLY AFTER MR. STRICKLAND BECAME ACTING SUPERVISOR, HE
 RECEIVED A FORM REQUIRING HIM TO STATE IF HE WOULD RECOMMEND MS. MCCLOUD
 FOR A PROMOTION.  BECAUSE HE WAS NOT TOO FAMILIAR WITH HER WORK AT THAT
 TIME, MR. STRICKLAND CONSULTED WITH MR. HOLLARD, HER PRIOR SUPERVISOR,
 AND MR. HOLLARD CONCURRED WITH MR. STRICKLAND'S EVALUATION THAT SHE WAS
 NOT THEN READY FOR A PROMOTION.
 
    4.  ON JANUARY 9, 1979, MR. STRICKLAND GAVE MS. MCCLOUD A WRITTEN
 STATEMENT OF WHAT SHE NEEDED TO IMPROVE HER WORK AND ADVISED HER THAT HE
 WOULD REVIEW HER WORK IN 90 DAYS FOR RECONSIDERATION OF HER PROMOTION.
 THEREAFTER, MR. STRICKLAND BEGAN TO REVIEW MS. MCCLOUD'S WORK MORE
 CLOSELY AND DISCUSSED HER WORK WITH HER.
 
    5.  ON FEBRUARY 26, 1979, MR. STRICKLAND RECOMMENDED MS. MCCLOUD FOR
 PROMOTION TO GS-6;  HOWEVER, BECAUSE THE 90 DAY RECONSIDERATION PERIOD
 HAD NOT EXPIRED, THE RECOMMENDATION WAS DENIED.
 
    6.  ON MARCH 14, 1979, MS. MCCLOUD FILED A GRIEVANCE IN WHICH SHE
 ASSERTED THAT SHE HAD NOT BEEN GIVEN PROPER SUPERVISION AND TRAINING
 WHEN SHE BECAME AN ACCOUNTING TECHNICIAN IN APRIL, 1978, AT WHICH TIME
 HER SUPERVISOR WAS MR. HOLLARD, AND FURTHER ASSERTED A LACK OF
 SUPERVISION IN THE GENERAL ACCOUNTING SECTION UNDER BOTH MESSRS. HOLLARD
 AND STRICKLAND.
 
    7.  ON APRIL 5, 1979, MR. STRICKLAND AGAIN RECOMMENDED MS. MCCLOUD
 FOR PROMOTION TO GS-6, AND THE RECOMMENDATION WAS APPROVED.
 
    8.  IN EARLY 1979, RESPONDENT INTRODUCED A NEW EMPLOYEE PERFORMANCE
 RATING FORM.  EMPLOYEES AND SUPERVISORS WERE GIVEN A BOOKLET WHICH
 EXPLAINED EACH RATING ITEM AND ABOUT TWO WEEKS BEFORE THE RATINGS WERE
 TO BE MADE, EACH EMPLOYEE WAS GIVEN A BLANK FORM WITH INSTRUCTIONS TO
 INSERT HIS, OR HER, OPINION OF THE ORDER OF IMPORTANCE OF EACH RATING
 ELEMENT FOR THE EMPLOYEE'S PARTICULAR JOB, THE MOST IMPORTANT TO BE
 NUMBERED 1 AND THOSE OF LESSER IMPORTANCE BEING NUMBERED, IN ORDER OF
 IMPORTANCE, THROUGH 12.  EACH EMPLOYEE RETURNED THE FORM TO THE
 SUPERVISOR WHO MET WITH EACH EMPLOYEE TO ATTEMPT TO AGREE ON A RANKING
 ORDER.  ELEMENTS 1 TO 5 WERE CONSIDERED THE MOST CRITICAL ELEMENTS OF
 THE JOB.
 
    9.  WHEN MR. STRICKLAND MET WITH MS. MCCLOUD TO DISCUSS HER RANKING
 ORDER, HE ACCEPTED HER RANKING ORDER EVEN THOUGH SHE HAD RANKED
 "PLANNING ORGANIZING" AS NUMBER 1, RATHER THAN "QUALITY OF WORK"-- A
 RATHER STRANGE ABERRATION FOR AN ACCOUNTING TECHNICIAN-- WHILE MR.
 STRICKLAND FELT THAT "QUALITY OF WORK" SHOULD HAVE BEEN MADE NUMBER 1
 FOR THE POSITION AND THAT "PLANNING ORGANIZING" SHOULD HAVE BEEN NUMBER
 2.  BOTH FULLY AGREED, HOWEVER, THAT FOR THE RATING PERIOD ENDING MARCH
 31, 1979, THE ELEMENT "GETTING ALONG WITH OTHER WORKERS" RATED NO MORE
 THAN A RANKING OF 10 AND FOR THE NEXT RATING PERIOD AN EVEN LOWER
 RANKING OF 12.
 
    10.  AFTER AGREEING ON THE RANKING ORDER, MR. STRICKLAND COMPLETED
 MS. MCCLOUD'S PERFORMANCE RATING ON MARY 22, 1979, AND MET WITH MS.
 MCCLOUD ON MAY 23, 1979, TO DISCUSS THE RATING.  THEY MET IN THE
 CONFERENCE ROOM WITH NO ONE ELSE PRESENT.  MR. STRICKLAND HAD RATED MS.
 MCCLOUD "MARGINAL" ON THE ELEMENT OF "GETTING ALONG WITH OTHER WORKERS."
 HE HAD RATED MS.  MCCLOUD "SATISFACTORY" OVERALL AND WITH OR WITHOUT THE
 "MARGINAL" RATING ON THIS ELEMENT HER OVERALL RATING WOULD HAVE NOT BEEN
 AFFECTED.  MS. MCCLOUD SIGNED THE FORM.
 
    11.  MR. STRICKLAND TESTIFIED AS FOLLOWS:
 
    "THE WITNESS:  AS WELL AS I REMEMBER, I TOLD MS. MCCLOUD THAT I HAD
 HER RANKING FORM.  I
 
    THOUGHT SHE WAS WEAK IN ONE CATEGORY AND THOUGHT IT WAS THE LEAST
 IMPORTANT OF ALL THE
 
    ELEMENTS, AND SHE LOOKED IT OVER AND SIGNED IT AND THAT WAS IT.
 
    "JUDGE DEVANEY" DID SHE MAKE ANY COMMENT AT ALL AT THIS TIME?
 
    "THE WITNESS:  I DO NOT REMEMBER ANY COMMENT AT THAT TIME." (TR. 291;
  SEE, ALSO TR. 272).
 
    12.  THE FOLLOWING DAY, MAY 24, 1979, MS. MCCLOUD ASKED MR.
 STRICKLAND TO RETURN HER PERFORMANCE RATING FORM, WHICH HE DID, AND SHE
 TYPED ON THE FORM THE FOLLOWING STATEMENT:
 
    "SUPERVISOR STATED THAT IT WAS NOT THAT I DID NOT GET ALONG WITH
 CO-WORKERS BUT RATING WAS
 
    BECAUSE OF GRIEVANCE FILED BY ME IN APRIL OF THIS YEAR WHILE GLYN WAS
 
    SUPERVISOR." (G.C. EXH. 12).
 
    13.  WHEN MR. STRICKLAND SAW THE STATEMENT MS. MCCLOUD HAD TYPED ON
 THE PERFORMANCE RATING FORM, HE ADDED THE FOLLOWING STATEMENT:
 
    "IT IS MY OPINION THAT THE INCUMBENT, DURING THE RATING PERIOD, GAVE
 THE IMPRESSION OF
 
    BEING OVER-BURDENED, IMPATIENT WITH OTHER WORKERS AT TIMES, AND
 AGGRAVATED SOME WORKERS AT
 
    TIMES.  ALTHOUGH THIS IS POSSIBLY THE LESS (SIC) IMPORTANT OF ALL THE
 RATING ELEMENTS, I
 
    BELIEVE THE INCUMBENT TO BE MARGINAL IN THIS CATEGORY." (G.C.  EXH.
 12).
 
    14.  MS. MCCLOUD TESTIFIED THAT SHE DID NOT KNOW WHEN MR.
 STRICKLAND'S STATEMENT HAD BEEN PUT ON THE FORM (TR. 244);  BUT IN THE
 ORIGINAL CHARGE, IT WAS STATED THAT ON MAY 25, 1979, MS. MCCLOUD FOUND A
 COPY OF THE FORM ON HER DESK WITH MR. STRICKLAND'S STATEMENT.  THIS WAS
 WHOLLY CONSISTENT WITH MR. STRICKLAND'S TESTIMONY.
 
    15.  MS. MCCLOUD TESTIFIED THAT ON MAY 23RD, MR. STRICKLAND HAD MADE
 THE STATEMENT SHE TYPED ON THE FORM THE FOLLOWING DAY.  SHE TESTIFIED
 THAT SHE MADE NO COMMENT TO MR. STRICKLAND AND ADMITTED, OF COURSE, AS
 SHOWN BY THE FORM, THAT SHE HAD SIGNED THE FORM.
 
                                CONCLUSIONS
 
    MS. MCCLOUD'S GRIEVANCE WAS FILED AFTER MR. STRICKLAND'S
 RECOMMENDATION THAT SHE BE PROMOTED HAD BEEN DENIED.  ALTHOUGH THE
 PRINCIPAL THRUST OF HER GRIEVANCE CONCERNED THE ASSERTED LACK OF PROPER
 SUPERVISION BEFORE MR. STRICKLAND BECAME ACTING SUPERVISOR OF THE
 GENERAL ACCOUNTING SECTION, IT IS CONCEIVABLE THAT HE MIGHT HAVE
 RESENTED THE GRIEVANCE;  BUT ANY SUCH INFERENCE WAS NEGATED BY HIS
 FURTHER RECOMMENDATION, ON APRIL 5, 1979, THAT SHE BE PROMOTED, WHICH
 RECOMMENDATION WAS APPROVED.  IT IS WHOLLY, IMPLAUSIBLE THAT, HAD MR.
 STRICKLAND MADE THE STATEMENT, IN EFFECT, THAT HE RATED HER "MARGINAL"
 AS TO "GETTING ALONG WITH OTHER WORKERS" BECAUSE SHE HAD FILED A
 GRIEVANCE, THAT MS. MCCLOUD WOULD HAVE SAID NOTHING, MUCH LESS THAT SHE
 WOULD HAVE SIGNED THE FORM ON MAY 23.  IT IS EQUALLY IMPLAUSABLE THAT
 MR. STRICKLAND WOULD HAVE MADE SUCH A STATEMENT SINCE HE HAD, ON APRIL
 5, AFTER HER GRIEVANCE HAD BEEN FILED, AGAIN RECOMMENDED HER FOR
 PROMOTION.  NOR DID I FIND MS. MCCLOUD'S TESTIMONY PERSUASIVE FOR OTHER
 REASONS, INCLUDING HER TESTIMONY THAT SHE DID NOT KNOW WHEN MR.
 STRICKLAND ADDED HIS STATEMENT TO THE RATING FORM INASMUCH AS THE
 ORIGINAL CHARGE STATED THAT SHE FOUND IT ON HER DESK ON MAY 25.
 
    ON THE OTHER HAND, I FOUND MR. STRICKLAND'S TESTIMONY WHOLLY CREDIBLE
 AND CONSISTENT.  HAVING OBSERVED MS. MCCLOUD'S DEMEANOR, I FIND BOTH
 CREDIBLE AND CONVINCING MR. STRICKLAND'S TESTIMONY, FULLY CORROBORATED
 BY THE TESTIMONY OF MR. HOLLAND, THAT MS. MCCLOUD DID HAVE DIFFICULTY IN
 GETTING ALONG WITH OTHER WORKERS.  FOR ALL THE FOREGOING REASONS, I
 FULLY CREDIT MR. STRICKLAND'S TESTIMONY, INCLUDING HIS CATEGORICAL
 DENIAL THAT HE MADE ANY REFERENCE TO MS.  MCCLOUD'S HAVING FILED A
 GRIEVANCE, AND FIND THAT HE SIMPLY TOLD MS. MCCLOUD THAT SHE WAS WEAK IN
 ONE CATEGORY, NAMELY, GETTING ALONG WITH OTHER WORKERS, ALTHOUGH HE
 THOUGHT IT WAS THE LEAST IMPORTANT OF ALL THE RATING ELEMENTS.
 
    AS A PREPONDERANCE OF THE CREDITED TESTIMONY DOES NOT ESTABLISH THAT
 RESPONDENT VIOLATED SEC. 16(A)(1) OF THE STATUTE, AS ALLEGED IN THE
 COMPLAINT, I RECOMMEND THAT THE AUTHORITY DISMISS THE COMPLAINT IN CASE
 NO. 6-CA-255, IN ITS ENTIRETY.
 
                            WILLIAM B. DEVANEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 7, 1980
 
    WASHINGTON, D.C.
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ ALTHOUGH THE INSTANT CASE WAS INITIALLY CONSOLIDATED FOR THE
 PURPOSE OF HEARING WITH CASE NO. 6-CA-209, PURSUANT TO SECTION
 2423.19(